Judicial Review of Ministerial Advice to the Crown

Abstract

For Thomas Hobbes, nothing illustrated the “inconstant use of words” better than the confusion between “Counsels and Commands,” for the words “Doe this,” he said, “are the words not only of him that Commandeth; but also of him that giveth Counsell.” This confusion remains with us today. We still do not have a sound grasp of the distinctive place that counsel or advice plays within our constitutional system. How is ministerial advice to the sovereign concerning how a power ought to be exercised different from the exercise of the power itself? Does ministerial advice exist within a domain of political action beyond the reach of law? These are persistent questions in Canada.