The Executive, the Royal Prerogative and the Constitution

Forthcoming, Oxford Handbook of the Canadian Constitution (eds. Nathalie Des Rosiers, Patrick Macklem, Peter Oliver)

Ottawa Faculty of Law Working Paper No. 2017-01

20 Pages Posted: 17 Dec 2016 Last revised: 26 Jan 2017

Craig Forcese

University of Ottawa - Common Law Section

Date Written: December 15, 2016

Abstract

The royal prerogative is the residue of power once exercised by the Crown. In modern Canadian law, some historic prerogative powers have been codified as part of Canada’s written constitutional law. Others persist in a form governed by constitutional conventions. Most others have been displaced by legislation, through the exercise of parliamentary supremacy. Exactly what is required before this displacement by statute arises is, however, an area of considerable uncertainty in Canadian law. What is clear is that the royal prerogative remains a source of executive authority in several special subject areas, especially defence and foreign relations. Some exercises of the remaining prerogatives constitute matters of high policy, while others may affect the interests and rights of individuals. Where exercises of the prerogative do affect interests and rights, and especially where Charter interests are in play, the prerogative has been treated no differently than any other exercise of executive power. Specifically, it has been subject to judicial review. Where, however, the prerogative implicates matters of high policy or discretionary bestowal of honours, courts have invoked the doctrine of justiciability in declining responsibility for examining executive branch conduct.

Keywords: royal prerogative, Canada, constitutional law, public law, defence, foreign affairs, justiciability

Suggested Citation

Forcese, Craig, The Executive, the Royal Prerogative and the Constitution (December 15, 2016). Forthcoming, Oxford Handbook of the Canadian Constitution (eds. Nathalie Des Rosiers, Patrick Macklem, Peter Oliver); Ottawa Faculty of Law Working Paper No. 2017-01. Available at SSRN: https://ssrn.com/abstract=2885930

Craig Forcese (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

HOME PAGE: http://www.cforcese.ca

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