The Separation of Powers: Toward a Canadian Conception

Event Description

This paper initiates a re-conception of the doctrine of the separation of powers in Canadian jurisprudence. Many jurisdictions work with a fairly rudimentary principle of the separation of powers with the result that its potentially rich content, depth, and breadth remains submerged in the jurisprudence. Canada is no different. In order to flesh out a deeper institutional and normative framework, I draw on a variety of literatures including jurisprudence, constitutional theory, new institutionalism, and republican theory. The paper ‘domesticates’ these theories for the Canadian context to underscore how the current conception of the separation of powers has hindered Canadian public law as well as how its core content could be expanded. I propose two possible trajectories that this expansion can take. These trajectories are complementary, rather than being mutually exclusive. The first jurisprudential path wends it way from the idea of a ‘mixed constitution,’ starting with its original import in Montesquieu’s seminal text The Spirit of the Laws, and locates its domestic foothold in late 19th century French and English Canadian legal and political theory. This direction involves some excavation in Canadian public law, but its presence offers future promise through adaptation and updating of older thinking for the current context. The second direction involves reviving the all but abandoned metaphor of ‘institutional dialogue,’ a home-grown metaphor that has never reached its full potential in Canadian jurisprudence. The argument aims to re-energize the latent theoretical links between the mixed constitution and institutional dialogue, thereby making their institutional and normative relationships more explicit. The paper argues that a reconstructed separation of powers principle can better harness dialogical accountability, core principles of good governance, and balanced inter-institutional and inter-societal relations.

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Speaker

Mary Liston is an Associate Professor at the Peter A. Allard School of Law, University of British Columbia. She teaches public law including administrative and constitutional law, legal theory, and law and literature. Her research focuses on public law broadly and administrative law in particular. It also lies at the intersection of constitutional law, legal theory, and democratic theory. She has participated in two leading casebooks as a co-author of Public Law: Cases, Commentary and Analysis and as a contributor to Administrative Law in Context. Her work has been cited by the Supreme Court of Canada in several precedential public law cases.