Comment: The Separation of Powers in 1867

Abstract

Philip Resnick argues that Montesquieu is seminal for an understanding of Canadian institutions. We find in nineteenth-century Canada, he says, not Montesquieu's separation of powers doctrine, so influential in the United States, but his teaching about the mixed constitution, that is, government by a combination of monarchic, aristocratic and democratic institutions. He argues that this influence shows in such typical features of our political culture as acceptance of hierarchical patterns, deference to authority and so on; these are reflections of the “disdain for democratic excesses” inherent in the mixed constitution. He then goes on to suggest that we have grown out of the mixed constitution in the twentieth century, but that as a result of the Charter of Rights and Freedoms relations between the political and judicial powers in Canada have so come to resemble the American that we are justified in saying that Canada in this one respect is now characterized by the separation of powers. We have moved from the Montesquieu of the mixed constitution to the Montesquieu of the separation of powers.