Executive Power Has Limits: Understanding the Rule of Law in Canada
For the past several weeks, headlines have been dominated by news of sweeping executive reform actions taking place south of the border. Under President Trump’s first weeks of rule, a number of executive orders have been issued on subjects ranging from stripping federal DEI programs, cutting ties with various international scientific organizations, and razing the federal public service. Can an executive (like the President, or in Canada, the Prime Minister) actually do this? Knowing the limits on an executive’s sphere of power is crucial to being able to hold that executive to account.
The rule in Canada is that executive action does have limits. Roncarelli v Duplessis, a 1959 decision of the Supreme Court that has been described as “Canada’s most important decision on the rule of law”, holds that public officials must exercise their authority in good faith and not arbitrarily. Under Roncarelli, even if an official (including a head of government) has discretion to act, this discretion still has limits. Making an executive decision simply to punish an individual or group, for example, may well be unlawful. Paralyzing a federal commission or agency, simply because the executive disagrees with the decision-makers in that body, could be found arbitrary and therefore illegal.
These limits are put in place to recognize that the executive of the day is still subject to law. They have to follow the laws that Parliament passes and that the courts interpret. When they fail to do so, their actions can be subjected to what we call “judicial review” – a process like the one in Roncarelli, where the executive’s decision-making process and reasons are reviewed by the court. Sometimes judicial review can take months or even years, but in urgent situations, a court can issue an injunction to halt (or “quash”) a decision.
So, if you are reading headlines about drastic executive actions and wondering “is that legal?” the answer is – quite possibly not. And if your next question is “what can anyone do about it?” the answer is – there are probably teams of lawyers already at the court’s door, marshalling their arguments about the rule of law and its limits on the executive. Those parts of the story always come down the road, but they are no less important to the whole picture.