CABINET GOVERNMENT IN THE PROVINCES
OF CANADA
J. R. Mallory*
A fundamental part of the constitution of the provinces of Canada is re-
sponsible government: the executive power is exercised by advisers of the
Lieutenant Governor who are accountable to the majority in the elected
chamber of the legislature. It is generally thought that this principle of govern-
ment is based upon convention rather than upon law. It is, however, reinforced
by the law” of the constitution.
The preamble to the British North America Act recites that the provinces
desired to be “federally united into One Dominion under the Crown … with
a constitution similar in Principle to that of the United Kingdom.” While
the words of a preamble are not enforceable law, they constitute a declaration
of intention, and there is no doubt that in this case they were intended to
imply the principles of responsible government.’ Furthermore, as Dicey points
out, the power of appropriation possessed by the legislature is itself a round-
about safeguard of responsible government, since a ministry without a
majority could not get supply and would therefore come ultimately into con-
flict with the law.2 The British WNorth America Act goes somewhat further.
Section 66 enacts that “the Provisions of this Act referring to the Lieutenant
Governor in Council shall be construed as referring to the Lieutenant Gov-
ernor of the Province acting by and with the Advice of the Executive
Council thereof.”
This, of course, does not ensure ministerial responsibility to the legislature,
but it has the effect of asserting collective ministerial responsibility for
executive acts. There is little doubt that this was its purpose. Sir Edmund
Head, in a despatch to the Secretary of State on March 4, 1858, pointed out
the relevance of the identical phrasing of the Canada Interpretation Act (12
Vict. c. 10) to the operating principles of responsible government. 3
*Professor of Political Science at McGill University.
1it was intended that this provision should be in the body of the Act. Speaking in the
Canadian Confederation Debates on February 6, 1865. Sir John A. Macdonald said “in
framing the Constitution, its first sentence should declare, that the Executive authority
or government should be vested in the Sovereign of the United Kingdom of Great
Britain and Ireland, and be administered according to the well-understood principles of
the British Constitution.” Quoted in W. P. M. Kennedy, Statntes, Treaties, and Docu-
ments of the Canadian Constitution (London, 1929), p. 559. This declaration appeared
in the Quebec and London Resolutions, but it was disarticulated by the parliamentary
draftsmen. Section 9 of the B.N.A. Act vests executive authority in the Queen, but the
“well-understood principles of the British constitution” were watered down to the phrase
quoted above and relegated to the preamble.
2A. V. Dicey, The law of the Constitution (London, 1939, Ninth ed.), p. 446 ff.
3Public Archives of Canada. Secret and Confidential Despatches, Colonial Secretary,
1856-1866 G – 10. Vol. 2.
McGILL LAW JOURNAL
[ Vol. 3
The constitutional basis of the executive of the various provinces varies.
New provisions had to be made for the Provinces of Ontario and Quebec,
which were created de novo and some thirty sections of the B.N.A. Act deal
with the framework of their constitutions. New Brunswick, Nova Scotia,
Prince Edward Island, British Columbia and Newfoundland came into the
union with pre-existing constitutions which were a
largely “unwritten”
mixture of royal grants. British statutes, custom, and colonial legislation.
The self-governing institutions of both British Columbia and Newfoundland
were in an imperfect state when they entered the union, and were supple-
mented by provincial legislation. The constitutions of the three provinces
which were created out of the territories were initially provided for by
federal statute. All of the provinces have the full power to amend their own
constitutions (“except as regards the Office of Lieutenant Governor”) and
have made various modifications in them.
or to withhold it altogether –
While the provinces have responsible government, this is not unrestricted,
for there are limitations on provincial autonomy somewhat similar to those
imposed on British self-governing colonies before the Statute of Westminster.
The Lieutenant Governor is not only the constitutional head of state, insofar
as the powers of the province extend, he is also a “dominion officer” required
to exercise such reserve powers in the interests of the federal government as
may be required. It is clear that, in addition to the normal discretionary
powers inhering in his office, he has a legally unrestricted power to reserve
his assent –
against the advice of his prov-
incial ministers. 4 In the ordinary administration of the government, provincial
Lieutenant Governors are as likely to act in accordance with ministerial advice
as the Queen or the Governor General, nevertheless the Lieutenant Governor’s
discretionary powers are clearly more alive –
than would normally be expected in a constitutional head of state. It should
be noted that the Lieutenant Governor of Alberta reserved three bills for the
signification of the Governor General’s pleasure in 1937.5 Furthermore, the
Lieutenant Governor of Prince Edward Island in 1924 withheld assent to a
bill respecting the union of certain churches under the name of the United
Church of Canada, and in 1945 the Lieutenant Governor refused assent to a
bill to amend the Prohibition Act. 6 In spite of these comparatively recent
eexamples of executive discretion, the Lieutenant Governor’s dual status does
not create a significant impairment of the operation of responsible government
in the provinces, though such restriction on provincial power must be noticed.
4 See James L. McHenry, Memorandum on the Office of Lieutenant-Governor of a
5~J. R. Mallory: “The Lieutenant-Governor as a Dominion Officer” Canadian Journal
at least in some provinces –
Province, (Ottawa, 1955).
of Economics and Political Science, (November, 1948, pp. 503-7).
WFrank McKinnon, The Government of Prince Edward Island (Toronto, 1951), p. 155.
No. 2]j
PROVINCIAL CABINET GOVERNMENT
CABINET AND COUNCIL
In law the executive government in a province is the Lieutenant Governor
in Council. In fact, the working structure of the executive is the same as
that in the federal government. The Executive Council presided over by the
Lieutenant Governor, even for the formal approval of ministerial recom-
mendations, is wholly extinct except in :Newfoundland. There, a procedure
similar to that followed by the government of Canada in the early years after
Confederation is still followed. After draft minutes have been read aloud
by the clerk of the Executive Council, they are presented to the Lieutenant
Governor for signature.7
The holding of a Council by the Lieutenant Governor for the purpose of
approving Minutes or Orders in Council is no longer the practice in any other
province. It is possible that, in some provinces, this practice had already
ceased at Confederation. In others, for example, Manitoba and Prince Edward
Island. the Lieutenant Governor continued not only to preside over formal
Executive Councils, but also to participate in the deliberations of his Ministers
for some years after the province entered the union.
In general, however, the procedure in both the federal and provincial
governments for as long as memory runs has been different. The Cabinet,
meeting as the Committee of the Executive Council under the chairmanship of
the Prime Minister, agrees to draft minutes and/Orders in Council which are
subsequently transmitted to the governor for signature in his office. It is
called the Committee of Council, as Sir Edmund Head explained in 1858,
because it is meeting in the absence of the Lieutenant Governor.8
Membership in the Executive Council is provided for in the case of Ontario
and Quebec in the British North America Act, section 63 (subsequently
amended by provincial statute) and by the statutes of the various provinces.
Membership is limited to ministers, and is held only so long as ministers
continue to hold office. There are no ministers outside the cabinet and no
ministers who are not executive councillors in any of the provinces. In a
number of provinces the premier holds office as President of the Executive
Council, in a few this office is normally held by another minister, and in some
the office is presently left vacant. New Brunswick appears to be the only
province in which, as far as is known, the premier has never held the office
of President of the Executive Council. In Ontario and Quebec the offices of
Prime Minister and President of the Executive Council are coupled by
statute. Section 6 of the Executive Power Act (1941 R. S. Q., ‘c. 7) says
7The Cabinet meets as the Committee of Council, and draft Minutes or Orders are
later given approval by the Lieutenant Governor at a meeting of the Lieutenant Governor
in Council. In urgent cases, a Minute may be approved by the Lieutenant Governor
without the summons of a formal council, in the same manner as his approval is normally
given in other provinces.
8See J. R. Mallory, “Cabinet Government in Canada” Political Studies, (June, 1954),
pp. 142-4.
McGILL LAW JOURNAL
[Vol. 3
“The member of the Executive Council holding the recognized position of
Prime Minister shall be ex-officio President of the Council”, and similar
provision is made in the Executive Council Act of Ontario.
As was the case with the federal cabinet before the introduction of the
Secretariat; the only records of cabinet decisions are contained in the formal
Executive Council instruments. Since practically all executive decisions are
implemented by order in council, this has been on the whole a satisfactory
system of keeping records and no need has arisen for the creation of a
secretariat to prepare agenda, record decisions, and follow them up. To this
generalization there are two recent exceptions. The provinces of Ontario
and Saskatchewan have appointed Secretaries to the Cabinet. These officers
are in both cases attached to the premier’s office, and they perform duties
similar to those discharged by the Secretary to the Cabinet in Ottawa. In
Saskatchewan the Secretary to the Cabinet also performs these functions
for cabinet committees (except the Treasury Board). The general rule in
the other provinces is that no officials attend cabinet meetings. Orders in
council are either drafted beforehand in the originating departments, or
later on the basis of memoranda of what was decided, prepared by the
premier. 9
Except for the two large provinces of Ontario and Quebec, provincial
cabinets are small, ranging from 8 to 14. Ontario had a cabinet of 19 in
1955, while Quebec in the same year had 21. The small size of cabinets has
not created any problem of exclusion of ministers from the cabinet –
and
even in Ontario and Quebec there are no ministers who are not of cabinet
rank. While there are ad hoc, and some standing committees in most
provinces, there are several cabinets which have no committees whatever,
except for a Treasury Board.
Quebec is the only province so far to create political offices outside of the
cabinet. Parliamentary Assistants, whose duties are analogous to those of
parliamentary assistants in Ottawa, were created by statute during the 1954-
55 session (3-4 Eliz. II, c. 20).
Ministers without Portfolio exist in some, but not all provinces. It is to be
assumed that when such are created the purpose is to secure balanced re-
presentation in the Cabinet. This may be of significance where there are not
enough departments to go around, or where, as in some of the smaller
provinces, the duties of a minister are sufficiently light to justify combining
one or more portfolios under a single minister. The conflicting objectives of
economy and representation are then secured by rounding out the cabinet
with one or more ministers without portfolio who draw no salary as such.10
91n Newfoundland, however, the Clerk of the Executive Council does attend all
meetings both of the Cabinet (the Committee of Council) and the formal meetings of
the Lieutenant Governor in Council.
loIt should also be noted that sometimes the heads of such utilities as hydro commis-
sions also hold cabinet rank as ministers without port-folio. Dr. MacKinnon has the
No. 2]
PROVINCIAL CABINET GOVERNMENT
TREASURY BOARDS
All of the provinces now have ministerial committees which exercise
important powers of financial review and control over the departments. They
are similar in composition and powers to the Treasury Board in Ottawa.”
The usual size of the Treasury Board is three, and it is usually empowered
by statute to act as a Committee of the Executive Council. In this way it is
given powers to act in its own right, rather than the derivative and advisory
powers usual in a ministerial committee. 12 The powers of the Treasury Board
are wide. That of Saskatchewan exists for “the purpose of reference and
decision in regard to the matters referred to it”, and it has the power to
make regulations respecting accounting and auditing and “any and all other
matters concerning the finances of the province.”
In general the most important power of the Treasury Boards, in addition
to regulating the accounting practices of the departments, lies in the prelimin-
ary scrutiny of departmental estimates. ‘?Once the Treasury Board is re-
cognized as the Cabinet’s financial and budgetary committee, it hecomes,
or can become, a most important instrument in the rational formulation of
policy. This, it seems to me, is the chief objective of a cabinet government –
to formulate public policy in a rational and logical fashion within, of course,
the political or ideological framework of the government of the day” writes
the Secretary of the ‘Treasury Board of Saskatchewan. 3
There are special features of the Treasury Boards’of some provinces which
are worthy of note. The -Treasury Board in Nova Scotia appears to have a
wider control over such matters as establishments than is specifically con-
ferred on other Treasury Boards.’ 4 This may be because it was constituted
following interesting note about ministers without portfolio in his native province: “Up to
1935 they had been prevented from taking offices of emolument which were not specially
provided for by statute and at the same time retaining their seats in the Legislature. In
that year a special act was passed which permitted them, as well as other members of the
Legislature, to take certain paid positions such as purchasing agent, and Clerk of the
Assembly. It was felt that their work could be done more economically by members of
the Legislature than by outside officials. Other special duties, such as acting chairman of
committees and piloting certain Government bills through the House, have sometimes
been placed in their charge.” The Government of Prince Edward Island, p. 175.
11A full and authoritative discussion of the federal Treasury Board
is given by
G. W. Stead in Proceedings of the Seventh Annual Conference The Institute of Public
Administration of Canada, (Toronto, 1955), pp. 79-96. The same volume contains an
equally admirable account of the Saskatchewan Treasury Board (ibid, pp. 99-112) by
A. W. Johnson.
‘2The Treasury Board of Nova Scotia was set up by Order in Council on October
18, 1954. Its powers are almost identical with those of the federal Treasury Board.
13Johnson, loc. cit., p. 100.
41n Manitoba establishments are dealt with by an Establishments Committee of the
2
Cabinet of which a full time Civil Service Commissioner acts as Secretary. Since one
of the other members of the Civil Service Commission is also the Deputy Provincial
Treasurer, the Secretary of the Treasury Board is at all times reasonably familiar with
McGILL LAW JcOURNAL
[Vol. 3
sufficiently recently to incorporate the specific powers conferred on the federal
Treasury Board by the Financial Administration Act of 1951. The normal
composition of a provincial Treasury Board is as follows: the chairman who
is the Provincial Treasurer (or Minister of Finance), together with two other
ministers. The usual quorum is two. The Secretary of the Board is the Deputy
Provincial Treasurer (or Deputy Minister of Finance). In some cases the
Secretary attends meetings of the Board, in others he does not. In New
Brunswick the Secretary of the Board is not the Deputy Provincial Treasurer,
but the Clerk of the Executive Council. An even more important departure
from the pattern is noticeable in the Quebec Treasury Board. Section 10 of the
Treasury Department Act (1941 R. S. Q. c. 71) provides that “The Prime
Minister shall be the chairman of the Board.”
In the case of Prince Edward Island, :Dr. MacKinnon reaches the following
conclusion:
“(The)
inner Cabinet received statutory recognition and special powers when
it was constitued the Treasury Board for the Province. The Legislative Asscnbly
Act of 1940 provided that four members of the Cabinet were to form the Treasury
Board with the Provincial Treasurer as chairman and the Deputy Provincial
Treasurer as secretary. It became customary to confine membership in this body
to Ministers with Portfolio, a practice which was recognized by a statute in 1947
which stated that the Board shall consist of the Premier and the heads of the Public
Departments of the Government. The functions of the Treasury Board are to act
as a committee of the Executive Council on all matters relating to finance, revenue,
contracts, and expenditure of public moneys which are referred to it by the Council,
or to which the Board thinks it necessary to call the attention of the Council, and
to make regulations for the administration of the Public Service, subject to the
approval of the Lieutenant-Governor-in-Council. While the status and functions
of the Treasury Board are similar on paper to those of its namesake in the federal
government, actually they are not of comparable significance in view of the small
civil service and the restricted financial duties. They provide, however, a convenient
justification for dispensing with the services of the whole Cabinet.”‘
CHARACTERISTICS OF CABINET GOVERNMENT
Generalization about cabinet government in the provinces is difficult. Some
provinces are small, closely-knit communities which have made little alteration
in their formal structure of government for a century. For them elaborate
machinery is unnecessary and the realities of influence and power are often
very different from the formal structure. At the other extreme large provinces
are independent states in miniature. They require, and are beginning to have,
highly skilled civil services, and the complexity of their business requires
an intricate structure of organization in order to carry the heavy weight of
government decisions.
Other differences are equally important. The character of the party systems,
and of the operation of parliamentary government, differ widely. The chaotic
the work of the Establishments Committee. In Alberta there is a Joint Council made up of
three ministers and three members of the Civil Service Association. In addition to this
there afe in Alberta Standing Cabinet Committees on Civil Defense and on the Research
Council.
15The Government of Prince Edward Island, p. 176.
No. 21
PROVINCIAL CABINET GOVERNMkENT
politics of British Columbia, which has never cheerfully accepted a two-party
system on national lines, has modified from time to time the normal opera-
tion of cabinet government. In British Columbia, as in Manitoba, coalition
governments have eroded the clear lines of collective responsibility which
cabinet government requires. In the prairies, the powerful impact of agrarian
reform movements with their distrust of party politicians and their firm belief
in constituency autonomy has undermined party discipline and weakened
the unity and authority of cabinets. In the Atlantic provinces, politics still
wears the raffish air of the eighteenth century. The scent of brimstone hangs
about the hotel-rooms and caucus-rooms of politicians who have yet to re-
ceive the gospel of political reform. In Quebec, even among French Canadians,
the phrase “boss-rule” is in common currency. Ontario has had, within the
last twenty years, a regime at once radical, demogogic, and corrupt, in which
it was difficult to distinguish the sober lineaments of the British cabinet
system.
Party discipline and cabinet solidarity have been weakened by landslide
elections which have enfeebled and even in one case extinguished the ‘legisla-
tive opposition. 16 There were cases in Prince Edward Island in the 1940’s
of Ministers openly opposing government measures on the floor of the legis-
lature, 17 while in Manitoba in 1940 the premier and some ministers abstained
on a bill introduced by one of their colleagues.’ 8
In general, while the principle of sectional representation in the cabinet is
carefully followed, the strength of sectional veto groups is less. There being
less “diffusion of power” in the cabinet, the position of the premier is notably
stronger than in the federal cabinet. This is often enhanced by a generally
lower level of ministerial salaries which produces, except among the few
“key” members of a government, a large group of clearly part-time ministers
who cannot afford to forsake their private business affairs and who thereby
the provincial
sacrifice political influence in the cabinet. In consequence,
premier is often a one-man administration –
the acknowledged chief of his
party and the unchallenged head of his administration. Examples leap to
mind: Aberhart, Hepburn, and Duplessis by no means exhaust a list that
could be made.
In general provincial cabinets are considerably larger than is necessary
for the transaction of business. Even Prince Edward Island, with a cabinet of
nine, experiences a concentration of effective power in four or five ministers
at the expense of the full cabinet. Indeed, it would appear that. nearly all
provincial cabinets are too large. A recent article in The Economist, with a
witty and skilful deployment of tongue-in-cheek “scholarly apparatus”, has
conceptualized what has long been known by observation and common sense
l6This happened in Prince Edward Island in 1935.
27Frank MacKinnon, op. cit., pp. 190-4.
18H. McD. Clokie, Canadian Government and Politics (Toronto, 1950), pp. 208-9.
McGILL LAW JOURNAL
[Vol. 3
about the real nature of committees.’
,There it is argued that, in considering
size and effectiveness of committees, such bodies are afflicted by a law of
growth which drives to a size which destroys their effectiveness. This point
is reached at what is called “the co-efficient of inefficiency”. This number is
20 or periaps 21. “Cabinets with a membership in excess of 21 are losing
the reality of power and those with a larger membership have already lost it.”
If this is the case we surely need to know a great deal more than we do
about the operation of the cabinets of Ontario (19 members) and Quebec (21
members). If they have lost central executive power, to whom have they
lost it? In the case of the federal cabinet we can give some sort of an answer.
There has been visible for years the blurred outline of an inner cabinet whose
composition is based in part on personality and in part on some recognition
of regional representation. Furthermore, the marked sectional character of
Canadian politics has created a pattern of representation and sectional veto
which still retains final power of decision in the cabinet. The development,
since 1940, of a complex system of cabinet committees has assisted in pre-
venting too great a concentration of power in the cabinet itself.
But how far do cabinet committees really operate in such provinces as
Ontario and Quebec? The relative homogeneity of a single province (even
a large one) removes a centrifugal force which could lead to a considerable
concentration of power within the group of nominal equals which comprise
the cabinet. We do not know how far a provincial cabinet is a genuine
deliberative body whose considered agreement is necessary for policy to be
arrived at, and how far it is simply a body which meets to ratify that which
has already been settled by some other process. The essentially informal and
secret character of cabinet government makes such questions hard to answer,
for statutes, rules and orders which might support a conclusion are necessarily
lacking.
Provincial government as a subject of serious study in Canada has suffered
from inexplicable and almost total neglect. It is fairly clear that, for some
time to come, we must await the production of serious studies of the con-
stitutions and the politics of the provinces of Canada before meaningful
conclusions can be reached about large parts of the structure of the govern-
ment of Canada. It is of some importance to know where real power lies, and
how it is exercised. For the moment we know something of the formal
structure of government, but politicians, business men, and journalists who
are in intimate contact with the process of government suggest that processes
of decision-making in all the provinces operate in a manner which is not
easily explained simply by reference to the known rules of cabinet govern-
ment.
19″Parklnson Looks at Cabinet Governments” The Economist, CLXXXI, No. 5906
(Nov. 3, 1956), pp. 395-7.
