2. The Executive Branch Defined:

A. Crown:

The Crown contains legal rights and legal obligations; has capacity to own property, enter contracts, sue, and be sued. Authority of the executive branch is vested in the monarchy.All Cabinet ministers for short time are privy councilors for life. All cabinet are privy, but not all privy are council because GG swears in distinguished Canadians to privy council

B. The Prime Minister and Cabinet:

PM presides over Cabinet and is the sole authority to determine who the GG swears in as a minister, who sits in cabinet, and what portfolio within cabinet that person holds.The Cabinet: is in most matters the supreme executive authority. It is the Cabinet that determines the legislative agenda of the government in Parliament and it is the Cabinet and its ministers that are responsible for the administration of the individual departments of the government.“Responsible government” has 2 key elements:

1. Cabinet member are drawn from legislative branch (house)2. Ministry is accountable to legislative branch collectively and individually.

Collective responsibility requires the ministry maintain confidence of parliament. Individual requires responsibility that each minister be answerable in parliament for activities of his department. Also responsible to departments.

CASE: Idziak v. Canada (minister of justice):Before suspect extradited hearing by judge to determine whether legal basis to support it and further determination by minister as whether person should be surrendered, also oversees prosecution in hearing.Argued minister’s 2-step role raised bias. Deference given to Minister. Act requires him to prosecute in judicial phase and act as adjudicator in ministerial phase.Court held first phase is judicial and second is political; minster weighs representation of fugitive against Canada’s international treaty obligations. Person has full procedural protection in judicial phase, at ministerial phase, there is no longer a list in existence. Fugitive has by then been judicially committed for extradition. Act just wants minister to execute judicially approved extradition by issuing warrant of surrender.

C. The Public Service:

Public services: are employees of government ministries are part of executive.Are politically neutral. 3 principles structure relationship between civil service and political officials within government:

1. Ministerial responsibility: requires presiding minister to be held politically accountable for all matters arising within dept.

2. Political neutrality: requires civil servants to carry out their responsibilities loyally to the government in power without regard for the civil servant’s own political views.

3. Public service anonymity: (consequence of first 2 principles) provides that bureaucrats should be held accountable to their political overseers, but are not answerable to parliament. Loyalty of civil servants requires the to refrain from publicly criticizing government policies

CASES: Fraser v. Canada:Facts: appellant employee of revenue Canada, discharged after repeatedly criticizing government’s policies regarding metrification. Argued that duty to refrain from criticism extends to areas related to civil servant’s public direct responsibilities. Court upheld Board decision.Rule: generally, federal public servants should be loyal to their employer, government of

Canada. Does not mean vote for governing party, you can oppose if engaged in illegal acts, or policies jeopardize the life health and safety of public servants, or if criticism has no impact on employees ability to perform or on public perception of that ability. Must not engage in highly visible attacks on government policies.Reasoning: public service has two dimensions:

1. One relating to employee’s tasks and how they perform, AND2. Other relating to perception of a job held by the public. Appellant displayed lack of

loyalty in government, that was inconsistent with his duties as employee of govt. Tradition in public service emphasis impartiality, neutrality, fairness and integrity. Deemed to know that there are restraints, which are exercise caution in criticizing the govt.

OSPEU v. Ontario:Concerned constitutional convention of public service neutrality, and affirmed its importance as a principle of executive governance. Ontario legislation restricting provincial civil servants’ political activities, (federal politics)Held as valid provincial legislation, but law was not subject to Charter

Osborne v. Canada:Concerned constitutional convention of public service neutrality, and affirmed its importance as a principle of executive governance. Question whether such restrictions consistent with Charter, resulted in federal restrictions being struck down as contrary to freedom of expression. Legislation was over-inclusive because did not make distinctions as to what kinds of work the employees may be involved in his level of responsibility within civil service. Restrictions on political activities now apply only to senior members of bureaucracy.

D. Independent Administrative Agencies:

Independent Administrative Agencies: certain decisions are best made on a principled basis and therefore should be insulated from considerations of political expediency - government creates tribunals for cases free from direct government over sight. Or, creation of independent agencies to administer government entitlement disputes. They do not have to be independent as a constitution matter.Court has recognized where a body exercises power of a sort triggering provisions (s. 7 Charter or 2e Bill - fair hearing, fundamental justice), some measures of independence may be required of that organization.

CASES: Ocean Port Hotel Ltd v. British Columba (General Manager, Liquor Control and Licensing Branch):Facts: Court drew distinction between admin tribunals and decisions makers, as emanations of the executive that must take their policy direction from the legislature, and the courts, which are protected by the constitutional principle of judicial independence.Issue: the degree of independence required of members sitting on administrative tribunals empowered to impose penaltiesRules: absent constitutional constraints, degree of independence determined by its enabling statute. It is the legislature or parliament determines degree of independence required of tribunal members (not court). The statute must be construed as a whole to determine the degree of independence the legislature intended.

a. If silent or ambiguous legislation, infer that tribunal’s process to comport w/ principles of natural justice. Thus, bound by requirement of independent and impartial decision maker and fundamental principles of natural justice.

b. Degree of independence may be ousted by express statutory language or necessary implication.

Reasoning: generally, tribunals do not attract charter requirements, thus, intention of parliament absent constitutional restraints must be respected. Clear language that board members serve at pleasure of lieutenant governor in council, no need to impose high degree of independence to meet requirements of natural justice.

c. Unwritten judicial independence does not extent to administrative tribunal, its only for prov and superior courts, courts of law. This was supported by separation of powers. Administrative tribunals are a divide between exec and judiciary, they have adjudicative functions but are part of executive branch, under the mandate of the legislature. They are not courts and do not occupy same constitutional role as courts. It’s a licensing body

d. Also no rationale for constitutional guarantee of independence in preamble of Con Act 1867.

Bell Canada v. Canadian Telephone Employees Association: Held that all aspects of tribunal’s structure, as laid out in its enabling statute must be examined, and as attempt must be made to determine precisely what combination of functions the legislative intended that tribunal to serve, and what procedural protections are appropriate for a body that has these particular functions.Reasoning: overlapping of investigative, prosecution, adjudicative functions in single agency is necessary for an admin agency to effectively perform its intended role. In considering aims of Act as a whole, in assessing whether requirement of impartiality has been met.

a. If Act suggests this can be best accomplished by giving commission the power to make interpretative guidelines, then overlapping functions in the commission play important role. Does not result in lack of impartiality but rather helps to ensure that the tribunal applies the act in the manner that is most likely to fulfill the act’s ultimate purpose.

Held: Tribunal has functions like court, more adjudicative, not into policy or investigations. Human rights Tribunal although not bound by highest standard of independence by unwritten constitutional principle of adjudicative independence, must act impartially and meet relatively high standard of independence both at common law and s. 2e Bill