ABSTRACT
In Canada, as in other Westminster states, there are good reasons to question the salience of the separation of powers as a constitutional principle. After all, there is no “strict” separation of powers between the executive, legislative, and judicial branches, and, until recently, the concept attracted relatively little attention from the Supreme Court of Canada. In the past several years, however, there has been a noticeable uptick in references to the separation of powers in the Supreme Court's jurisprudence. This raises the question of what is driving increased resort to the principle, and what value(s) the Supreme Court is upholding when it invokes the separation of powers in its jurisprudence. This chapter employs systematic doctrinal analysis to examine Canada's separation of powers doctrine. Four stories emerge from the analysis: first, that references to the separation of powers seem to be on the rise; second, that this trend is being led by specific judges; third, that, contrary to what might be assumed, the principle has been invoked to protect the sphere of action of the legislature, the executive, and the courts; and finally, that while the justices of the Supreme Court appear to largely agree on the meaning of the separation of powers as a concept, members of the Court are far less likely to agree on how the principle applies in practice. This has produced several cases in which the separation of powers forms the basis of a dissent.
