Lagassé and Bowden on the Crown as Corporation Sole and Royal Succession


Royal Succession 2014-04-04Philippe Lagassé and I have written a short article on the Crown of Canada as a corporation sole and how this fundamental attribute of the Crown pertains to royal succession and section 41(a) of the Constitution Act, 1982.

I’d like to thank Patricia Paradis of Constitutional Forum for having published our article, which you can read at the link below.

Lagassé, Philippe and James W.J. Bowden. “The Crown as Corporation Sole and the Royal Succession: A Critique of Canada’s Succession to the Throne Act, 2013.” Constitutional Forum 23, no. 1 (April 2014): 17-26.

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Posted in Corporation Sole, Crown (Powers and Office), Succession (Sovereign) | 1 Comment

The Ontario Young Liberals Blur the Line Between Satire and Genuineness


I hope that my regular readers won’t mind that this post presents a cultural critique rather than the sorts of subjects on which I typically write. Those of you who have watched House of Cards (either the British version or the new American iteration on which this poster is based) will recognize this promotional poster that the Ontario Young Liberals recently published.

House of Cards and the Young Liberals

At first, I thought that it was satire and that the Ontario Progressive Conservative Youth Association, the Young Liberals’ rival group, had created it in order to critique the Liberal Party of Ontario as corrupt and power-hungry. The Young Liberals probably thought something to the effect that this poster makes politics seem exciting and that it would help recruit passionate politicos to their team. In reality, the Young Liberals have made the Conservative and New Democratic case against their own party – that the Liberals run a corrupt, entitled, wasteful government – just as effectively as the Western Standard did in 2004 through this poster, which parodies the HBO series The Sopranos and lampoons the Liberal Party of Canada for having perpetrated the Sponsorship Scandal.

libranos

The Ontario Young Liberals seem oblivious to irony and satire, because this promotional poster in fact reflects poorly on the Liberal Party of Ontario and on the McGuinty and Wynne Governments. An astute politico who has watched House of Cards might very well think – though I couldn’t possibly comment – that the Young Liberals are suggesting that Kathleen Wynne represents Frank Underwood, and that she orchestrated the Gas Plant Scandal as a pretext for McGuinty’s resignation in 2013 so that she could become leader of the Liberal Party and Premier of Ontario.

The Young Liberals also might not have realized that an upside down flag is a sign of distress, and not merely a logo for the American version of House of Cards. Ironically, the Young Liberals have thereby acknowledged that the McGuinty and Wynne Governments have put this province in distress.

In short, this promotional poster is unintentionally revealing in its damning criticism of the McGuinty and Wynne Governments, and it exemplifies the disturbing convergence of satire and genuineness in politics. The Young Liberals have thus proven Poe’s Law: without the modulated voice inflections and gestures that we experience in personal interaction, it is often impossible in print media to distinguish between a genuine argument or slogan and its parody.

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Posted in Political Parties, Satire | Leave a comment

Premier Marois Copies Prime Minister Harper: The Futility of Fixed-Date Elections Laws


Pauline Marois

Introduction

Notwithstanding Quebec’s new fixed-date election law, Premier Pauline Marois of Quebec advised the Lieutenant Governor to dissolve the 40th Legislature on 5 March 2014, while the assembly was adjourned on recess and even though Marois’ single-party minority Parti Québécois government had not first lost the confidence of the assembly. Marois had floated the prospect of an early dissolution as early as September 2013, but she ultimately decided against a winter election.  The Legislature of Quebec passed its fixed-date election law in 2013, though apparently no one had taken notice.

Pauline Marois has thus built on Prime Minister Harper’s precedent from 2008, when despite the federal fixed-date election law, he advised the Governor General to dissolve the 39th Parliament while it was adjourned and while his single-party minority government still commanded the confidence of the Commons.

Prime Minister Harper met with great criticism for having “broken his own law,” or having broken a non-existent constitutional convention that he would only advise an early dissolution if his government had first lost the confidence of the Commons. In contrast, Premier Marois has mostly escaped this charge; thus far, I could find only one article in the French-language media that even mentioned that Quebec now has a fixed-date election law. But even Radio-Canada does not touch upon the significance of the non-derogation clause, “Seul le lieutenant-gouverneur peut dissoudre l’Assemblée nationale avant l’expiration d’une législature.”

In reality, neither Prime Minister Harper nor Premier Marois broke a law or a convention, because all the fixed-date election laws in Canada deliberately preserve the established constitutional positions of the First Minister and Governor via the non-derogation clauses.

Pauline Marois Uses Dissolution to Avoid Either in Contempt of Parliament or Facing and Embarrassing Committee Hearing

Premier Marois stated her intention to advise an early dissolution and an early general provincial election on 6 February 2014, as TVA Nouvelles reported. Just as Prime Minister Harper had concluded in August 2008 that his minority government was on the verge of losing control of the agenda in the House of Commons, and thereby the confidence of the Commons, Pauline Marois explained that she would not allow the opposition parties to obstruct her government’s bills and complained that the Liberals and the Coalition pour l’avenir du Quebec (CAQ) had decided to vote against her upcoming budget without even having read it. Marois also implied that both the Government and the Opposition must commit to making a minority parliament work, or else it should be dissolved.

J’entends les commentaires de ceux qui disent : vous devriez respecter votre loi. Je suis d’accord. Mais ça ne peut pas se jouer seulement d’un côté de la chambre. Ça doit se jouer des deux côtés. Pour l’instant les oppositions nous disent : on aime pas d’avance votre budget, mais on ne sait pas ce qu’il y a dedans. On veut vous renverser sur le budget. Disons qu’on va jouer à armes égales.

Marois concluded unambiguously, ‘Je me réserve le droit [de déclencher les élections].’

On 20 February 2014, the Liberals and CAQ used their combined majority in the National Assembly to pass a motion compelling Premier Marois and her husband Claude Blanchet, a wealthy businessman, to appear before the Parliamentary Commission on Public Finances. The commission is investigating political corruption and a questionable political donation of almost $3 millions from FTQ Construction to Blanchet’s business Capital BLF back in 2008.

«Que la Commission des finances publiques fasse toute la lumière sur les circonstances entourant l’investissement de 2 999 999,70 $ du Fonds de solidarité FTQ dans la société Capital BLF en juillet 2008 et qu’à cette fin, la commission entende la première ministre, l’ancien président et chef de direction de Capital BLF, M. Claude Blanchet, ainsi que toutes les personnes qu’elle jugera nécessaire de convoquer;
«Que l’exposé de la première ministre soit d’une durée maximale de 15 minutes et que les échanges avec les membres de la commission soient d’une durée maximale de 3 heures;
«Que l’exposé de M. Claude Blanchet soit d’une durée maximale de 15 minutes et que les échanges avec les membres de la commission soient d’une durée maximale de 3 heures;
«Que la durée maximale de l’exposé pour chacun des autres intervenants, le cas échéant, soit de 10 minutes et que les échanges avec les membres de la commission soient d’une durée maximale de 80 minutes;
«Que la commission fasse rapport à l’Assemblée [nationale] au plus tard le [18] mars 2014, à moins que la commission en décide autrement;
«Enfin, que cette motion devienne un ordre de l’Assemblée.»

This motion is binding and compels the Premier to appear before the committee before 18 March 2014; if she were to refuse, she would place herself in contempt of parliament. According to the National Assembly’s calendar, this schedule recess would end on March 10th, which would give Marois at most 8 days to prepare for her appearance.

However, Marois found a convenient method of ensuring that she will not risk being declared in contempt of parliament and that she does not have to appear before the committee: an early dissolution. An early election will also allow the Parti Québécois to take advantage of the virtual collapse of the CAQ’s support, present its proposed Charter of Quebec Values to the electorate for approval, and most likely win a parliamentary majority. Since Marois did not table a budget before the dissolution, the Government of Quebec might have to use Special Warrants in 2014, depending upon when the 41st Legislature is first summoned.

After the Lieutenant Governor promulgated the proclamation of dissolution, Marois reiterated her earlier argument from February and said that only an early election could break deadlock in the assembly because the Liberals and CAQ had already indicated that they would vote against the budget and other government bills:

Nous avons un plan et l’équipe pour réaliser ce plan. Malheureusement les libéraux et les caquistes n’ont plus qu’un but c’est de bloquer le gouvernement.

Conclusion

The Ineffective Canadian Laws vs the Binding British Law

As of March 2014, all the provincial legislatures, except Nova Scotia’s, and the Parliament of Canada have passed fixed-date election laws. Governments across the country have portrayed these laws as limiting the Prime Minister’s ability to advise an early dissolution and control the timing of the election for partisan gain. In reality, all of these fixed-date election laws have preserved the established constitutional positions of the First Minister and Governor by including a non-derogation clause saving the power of the Governor to dissolve the legislature; only a constitutional amendment under section 41(a) – the unanimity formula – could truly take away the executive’s control over dissolution, because this authority pertains to the “Office of the Queen, Governor General, or Lieutenant Governor of a Province.” These laws also do not conjure up a new constitutional convention that the First Minister would only advise an early dissolution under certain conditions, as Prime Minister Harper and Premier Marois have shown through their decisions, and as Premier Wynne has indicated in her statements from last fall.

For instance, the British Fixed-Term Parliaments Act of 2011 has put the prerogative of dissolution in abeyance and transferred this authority to the House of Commons; the Queen no longer dissolves parliament on the advice of the Prime Minister. The British Parliament can only be dissolved earlier than the five-year limit if two-thirds of MPs approve a motion “That there be a dissolution of parliament and an early general election,” or to break the deadlock if a simple majority of MPs pass a motion of constructive non-confidence in the government but the alternative government fails to command the confidence of the Commons within 14 days. This model of true fixed-term parliaments also requires constructive non-confidence (which means that the Opposition could only withdraw its confidence from the Government if it also proposes an alternative government) and represents a radical departure from Westminster parliamentarism as we knew it. Thankfully, only a constitutional amendment could impose this radicalism of transferring the Crown’s executive authority over dissolution to the Commons and replacing the current confidence convention with constructive non-confidence on Canada. I oppose both of these efforts on principle.

Responsible Government means that Ministers of the Crown take responsibility for all acts of the Crown, and therefore that the Governor acts on and, save for exceptional circumstances, in accordance with the advice of the First Minister or Cabinet. The Governors still possess the discretionary authority to reject advice to dissolve parliament and thus refuse fresh elections; however, a Governor can only justify his intervention into the executive government under exceptional circumstances precisely because of the exceptional consequence of his discretion. By refusing to act on the advice of the First Minister or Cabinet, the Governor dismisses them from office or forces them to resign, because a Ministry can only take responsibility for advice that it has offered, not for the contrary advice that it did not offer. In addition, the Governor can reject ministerial advice in this fashion if and only if he can then appoint a new First Minister who will take responsibility the dismissal or resignation of the outgoing Ministry. Some First Minister must always take responsibility for dissolution. Finally, refusing advice to dissolve is not the equivalent of dissolving unilaterally. Under our system, Governors do not and cannot undertake any executive act unilaterally because every proclamation, order-in-council, or other executive instrument requires the counter-signature of a responsible Minister of the Crown before the Governor can formally promulgate it. The proclamations of dissolution, the writs of election, and calling together the next parliament after the general election all require ministerial counter-signatures.

In other words, if the Lieutenant Governor of Quebec rejected Premier Marois’ advice to dissolve the legislature, he would thereby revoke her official commission of authority to govern and either force her resignation or outright dismiss her from the Premiership. He would then have to commission an alternative government from within this 40th Legislature by calling upon Liberal Leader Philippe Couillard and CAQ Leader Francois Legault to form some kind of coalition government (since their parties combined form a majority) in order to take responsibility for Marois’ dismissal and command the confidence of the assembly. This was never really an option – particularly not in Quebec, where gubernatorial intervention would only make the sovereigntist cause more popular and provoke the Parti Québécois to call a third referendum!

Inconsistent Media Coverage

Will the media treat Harper and Marois equally? I doubt it. If this article in Tuesday’s edition of the Globe and Mail provides any indication, most of the English-language media probably don’t even know that Quebec also has a fixed-date election law – which fits into their pattern of ignoring Quebec entirely under most circumstances, except to stir up resentment against the Parti Québécois. However, even among the French-language media like Le Devoir, La Presse, TVA, and Radio-Canada, I could find only one article, from the state broadcaster, that devoted any attention to Quebec’s new law. As such, most media outlets would not even grasp the fact that Marois is doing in 2013 precisely what Harper did in 2008: advising early dissolution while the assembly is adjourned and while the single-party minority government still possesses the confidence of said assembly. When Premier Kathleen Wynne of Ontario – who also leads a single-party minority government – suggested in October 2013 that she would seek an early dissolution if her government lost control of the legislative assembly’s agenda, the media also responded apathetically and never mentioned Ontario’s fixed-date election law. Wynne would in fact be well within her rights to do so. While it is possible that the media have learned from Prime Minister Harper’s precedent of 2008 and accepted the fact that Canada’s fixed-date election laws do nothing at all, I can’t help but think that partisan considerations also play a role in the inconsistent coverage.

Canada’s fixed-date election laws do not alter the established constitutional positions of the First Minister and Governor, so Harper, Marois, Wynne, and whatever other First Minister could always advise an early dissolution under any circumstances, just as before. I only ask that the media treat these First Ministers consistently, or at least clarify that since 2008, they’ve accepted the futility of the Canadian approach to fixed-date elections. But that’s probably too much to ask!

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Posted in Crown (Powers and Office), Dissolution, Fixed Elections, Governor's Discretion, Prime Minister's Powers, Reform | 2 Comments

Michael Ignatieff’s Fire & Ashes: An Oath of Allegiance If Necessary, But Not Necessarily to the Queen


Michale Ignatieff

Ignatieff Reveals His Thoughts on the Oath of Allegiance and Canada’s Constitutional Monarchy

In his new autobiography of his brief stint in Canadian politics, Fire and Ashes: Success and Failure in Politics, Michael Ignatieff couched his opposition to the parliamentarians’ oath of allegiance in familiar republican tropes.

Your awareness of what these responsibilities [as an MP] are begins when you take your oath of office in a wood-panelled room near the House of Commons chambers on Parliament Hill. What surprised me is that the oath included nothing about the people who had voted me into office. Instead, as in all Commonwealth democracies like ours, I swore an oath to Her Majesty the Queen and her heirs and successors. The “heirs and successors” part stuck in my throat, since I think we ought to decide, when the current Queen dies, whether to continue to acknowledge her family as our sovereign. Even if we continue to do so, there’s a strong case that defines the basic allegiance to elected representatives towards their citizens. Other democracies have this. For all my very real admiration for Her Majesty, I didn’t believe [that] I had responsibilities to the Crown alone. Our current oath of allegiance reinforces rather than reduces the gulf between the representatives and the citizens [whom] we represent. It seems regrettable that I was not able to swear to uphold the Canadian Constitution and to defend the rights of the people of Canada.[1]    

I transcribed the entire paragraph because it contains several interesting (and perhaps, unintentionally revealing) little quirks. For instance, he talks of the oath in terms of the obligations of “elected representatives toward their citizens.” First, both elected MPs and appointed Senators swear this oath or affirm this solemn affirmation, so being an “elected representative” is not a necessary condition. Second, “their citizens” strikes me as an usual phrase, because citizens, be definition, are not in anyone’s possession. Normally one would say “their constituents.” Ignatieff also made two significant errors; one shows profound ignorance of the constitution, and the other shows that Ignatieff made up an event that could not possibly have happened for literary effect after drawing upon the wording of different oaths of allegiance. Ignatieff must have been drawing upon his career as a journalist — a trade in which one takes a certain licence — rather than his career as a scholar. If I were to present a demonstrably false, unsubstantiated statement as an argument in one of Ignatieff’s classes, he would quite rightly give me a bad mark accordingly.

The Parliamentarians’ Oath of Allegiance Doesn’t Mention “Heirs and Successors”

First, the parliamentarians’ oath of allegiance does not include the phrase “heirs and successors.” The Fifth Schedule of the British North America Act, 1867 prescribes the form of the parliamentarians’ oath of allegiance as:

I, A.B., do swear, That I will be faithful and bear true Allegiance to Her Majesty Queen Victoria.

Note.—The Name of the King or Queen of the United Kingdom of Great Britain and Ireland for the Time being is to be substituted from Time to Time, with proper Terms of Reference thereto.[2]       

The oath now reads, “I, A.B., do swear (or affirm) that I will be faithful and bear true Allegiance to Her Majesty Queen Elizabeth II.”[3] Only a constitutional amendment could change this wording, though such an amendment would probably fall under section 44, which allows the Parliament of Canada alone to change the provisions of the Constitution Acts relating to “the executive government of Canada or the Senate and House of Commons.” It would probably fall under section 44, and not section 41(a) because this particular oath pertains to the House of Commons and Senate as houses of Parliament, not to the Crown-in-Parliament as a whole, and therefore not to “the office of the Queen” under section 41(a); both the Commons and Senate enjoy the parliamentary privilege to regulate their affairs and determine the qualification, or disqualification, of members therein. Since the Commons and the Senate can each vote to disqualify members for breach of oath, they could change the oath, and the Governor General would have to give the bill Royal Assent. I also argued in an earlier entry that the Parliament of Canada should update the oath so that it reads: “I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, according to law.” We should update our oath to reflect Canada’s constitutional evolution. In 1867, when the parliamentarians’ oath was written, the “one and indivisible Imperial Crown” reigned over the United Kingdom and all the Crown colonies; but in the mid-20th century, the Imperial Crown multiplied into a personal union as the self-governing Dominions became independent, sovereign States. In short, Canada, Australia, and New Zealand became independent, sovereign States only when they gained separate Crowns, i.e., separate corporations sole, or legal persons, that formed the personal union.

According to the Library of Parliament, and O’Brien’s and Bosc’s manual on parliamentary procedure, and Marlot’s and Montpetit’s earlier edition of the same, the current parliamentarians’ oath or solemn affirmation does not include the phrase “heirs and successors, ”so it could not possibly have “stuck in his throat” when he took the parliamentarians’ oath in 2006. He may have used this device for literary effect and to transition into his general opposition to the oath and on the Crown of Canada. Ignatieff uses the phrase “stuck in my throat” as a polite and subtle way of saying that he had difficulty swearing the oath because he has reservations about constitutional monarchy; in other words, he had to swallow his pride and objection in order to become a Member of Parliament and a Privy Councillor. This reservation is ironic given Igantieff’s own aristocratic background; after all, his grandfather Count Pavel Ignatieff served as Czar Nicholas II’s last Minister of Education. I could certainly understand objecting to a Russian-style monarchy or holding reservations toward a Hanoverian-style monarchy, for I would share them! But the modern British model of constitutional monarchy upholds Responsible Government, liberty, and the rule of law.

Other Oaths of Allegiance in Canada

Ignatieff became a Privy Councillor in 2009 and thus had to swear a second oath of allegiance to the Queen of Canada. But even the Privy Councillor’s oath does not include the phrase “heirs and successors”! (I was surprised that it does not, but perhaps it is also an older form, like the parliamentarians’ oath).  Other Canadian oaths of allegiance — those for naturalized citizens, personnel in the Canadian Armed Forces, and members of Law Societies — do include the phrase “heirs and successors,” and the latter two also tack on the phrase “according to law” at the end. He may have conflated the parliamentarians’ oath with the oath of allegiance for naturalized citizens or that for members of the Canadian Armed Forces. Even so, this is an easily verifiable piece of information — even if he takes licence with his own memories as with some of the facts!

Privy Councillors take the following oath:

I, __________, do solemnly and sincerely swear (declare) that I shall be a true and faithful servant to Her Majesty Queen Elizabeth the Second, as a member of Her Majesty’s Privy Council for Canada. I will in all things to be treated, debated and resolved in Privy Council, faithfully, honestly and truly declare my mind and my opinion. I shall keep secret all matters committed and revealed to me in this capacity, or that shall be secretly treated of in Council. Generally, in all things I shall do as a faithful and true servant ought to do for Her Majesty.

The oath of allegiance for naturalized citizens takes the following form, as prescribed by statute:

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.   

Personnel in the Canadian Armed Forces take the following oath, as prescribed by the Queen’s Orders and Regulations:

I, ________________________, do swear/affirm that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Her Heirs and Successors according to Law. So help me God.

Members of the Law Society of Upper Canada take a similar oath (I think as prescribed by a provincial statute):

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Heir heirs and successors according to law.[4]

The Oath of Allegiance and the Crown as a Corporation Sole

Second, Michael Ignatieff adopts the standard republican line that “after the current Queen dies,” Canadians should engage in a debate that would ultimately lead to abolishing the Crown of Canada and proclaiming the First Federal Republic of Canada. In classic Liberal ambivalence and contradiction, Igantieff simultaneously expresses his “very real admiration for Her Majesty,” but then shrouds his deliberately ambiguous endorsement of republicanism in the language of democracy, the general will – and the politician’s best friend: plausible deniability. Duff Conacher and Andrew Cohen of the mendacious “educational charity” Your Canada, Your Constitution have endorsed the same rhetorical approach. They promote this tactic as if the Government of Canada could somehow delay proclaiming the Prince of Wales as the next King of Canada and leave the Crown vacant until Canadians vote in a referendum on whether to abolish the Crown and the line of succession.

On its surface, this idea may sound reasonable and logical; in fact, it contradicts the nature of the Crown and succession to the Crown. The Crown of Canada is a corporation sole and operates on the principle of automatic hereditary succession. Several British scholars – Blackstone, Halsbury, Allen, and others – have written extensively on this fact since the 18th century, and the Crown of Canada inherited this body of law and precedent when it emerged as a separate legal person in the 20th century. As such, when the reigning Sovereign dies, his or her heir and successor immediately becomes the Sovereign, as prescribed by law; succession thus ensures the continuity and perpetuity of the State and government. This is why the terms “King,” “Queen,” “Crown,” “His Majesty,” and “Her Majesty” enjoy legal-constitutional equivalency. Logically, you simply cannot say that you are loyal to the Her Majesty the Queen but oppose the Crown – because they are inseparable and both refer to the same legal personality: the corporation sole known as the Crown of Canada.

All corporations, whether sole or aggregate, are legal persons, which “may maintain a perpetual succession and enjoy a kind of legal immortality,”[5] unlike natural person or persons who comprise corporations. A corporation aggregate is a legal person that consists of multiple natural persons. Normally when we use the word “corporation,” such as in the contexts of a private or publicly traded company, we are referring to a corporation aggregate. When one or more natural persons “are consolidated and united into a corporation, they and their successors are then considered as one person in law.”[6] In contrast, a corporation sole consists of only one natural person and his successors, as Blackstone explains:

Corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense, the king is a sole corporation […]

The king, for instance, is made a corporation to prevent in general the possibility of an interregnum or vacancy of the throne, and to preserve the possessions of the crown entire; for immediately upon the demise of one king, his successor is, as we have formerly seen, in full possession of the regal rights and dignity.[7]

All the major oaths of allegiance for public office in Canada, except the parliamentarians’ oath, include the phrase “heirs and successors” and thus make clear that they refer to the Crown of Canada in its corporate capacity, not to the personal capacity of the current reigning Sovereign. Ignatieff’s usual wording on “continuing to recognise [The Queen] and her family as sovereign” is thus (perhaps unintentionally) accurate, because the perpetuity of the corporate person known as the Crown of Canada does indeed depend upon the line of succession, as prescribed by law. As Blackstone says, a corporation sole includes both the current natural person and his successors. That old expression, “The King is dead — long live the King!” sounds superficially absurd, but it in fact conforms to the fundamental nature of the Crown. The natural person who personifies the legal person dies for the time being, but the legal person lives on in perpetuity because another natural person immediately takes the place of his predecessor and ensures the continuity of the corporation sole. In other words, to invoke another old expression, “The King never dies” (unless a constitutional monarchy turns itself into a republic by abolishing the Crown altogether).

If republicans want to precipitate a debate on the Crown of Canada, and whether Canadians should abolish it, they should not subsist on this forlorn, false hope that the death of the reigning Sovereign would present them with the perfect opportunity – it won’t, because succession occurs automatically.  The Government issues a proclamation acknowledging the demise of the Crown from one reigning Sovereign to the next; this proclamation does not cause the succession – so an anti-monarchist Government could not force an interregnum by refusing to issue this proclamation or make it subject to a referendum or constitutional conference. The Crown of Canada is a corporation sole and thus enjoys legal perpetuity unless and until it were abolished and dissolved altogether. In short, the succession of one reigning Sovereign to another does not provide some kind of opportune time to start this debate. The politics and perception do not overcome the legal-constitutional realities of succession.

Allegiance to the Queen Means Allegiance to the Constitution and to Canada

Ignatieff’s final suggestion that MPs swear an oath of allegiance to the Constitution and to “defend the rights of the people of Canada” stems from a dangerous current of political Romanticism.  The “Queen of Canada” has an objective legal meaning; Elizabeth II personifies the Crown of Canada and represents the country in both political senses of the word (the State and the political nation), and the Crown of Canada –a legal person subject to law – provides the basis for all executive, legislative, and judicial authority. The oath or affirmation of allegiance to the Queen therefore reflects Canada’s constitutional monarchy and legal-constitutional position. Section 9 of the Constitution Act, 1867 vests executive authority in the Queen, and section 17 establishes the Crown-in-Parliament as the Queen, Senate, and House of Commons. A bill only becomes law upon Royal Assent, and an order-in-council or proclamation is only promulgated with the Crown’s approval. In addition, the oath of allegiance that all parliamentarians must swear or affirm before taking their seats appears in the fifth schedule to the Constitution Act, 1867. The basic form of the oath therefore forms part of the Constitution of Canada. The other oaths are statutory, but flow from the Constitution.

Perhaps Ignatieff was alluding to the United States in the phrase “other democracies.” If so, his analogy still would not hold up. All official American oaths of allegiance – those of congressional representatives, the President, personnel in the armed forces, and naturalized citizens – refer to the Constitution of the United States, because it forms the basis of all legislative, executive, and judicial authority in and over the United States of America. Americans do not pledge allegiance to the United States itself, nor to “the people,” nor to “the nation.” (The Pledge of Allegiance, in which American schoolchildren express loyalty to the flag, is not a legal oath of allegiance or oath of office).

In reality, “Allegiance to the King means allegiance to the Country,” as Beauchense’s Rules and Forms of the House of Commons of Canada states. More recently, O’Brien and O’Bosc have reiterated the same principle:

When Members swear or solemnly affirm allegiance to the Queen as Sovereign of Canada, they are also swearing or solemnly affirming allegiance to the institutions [that] the Queen represents, including the concept of democracy.

Both the Canadian and American oaths affirm the rule of law and thus acknowledge a higher authority to which we are all bound and which we must obey in order to maintain our tradition of ordered liberty and civilized society. In contrast, an oath to “the people” or to “the nation” would be dangerous in principle, because it substitutes the general will for the rule of law and law-governed liberty. An oath to “citizens” or to “the people of Canada” means absolutely nothing, and could thus be used to justify anything. An ambiguous pledge to “Canada” alone lacks an objective grounding in law and the constitution and could refer to either the country as in State or as in patria, or to the people, or to be left to each individual’s own interpretation. “Defending the rights of the people” sounds like a euphemism for the Charter of Rights and Freedoms, which forms part of the Constitution and thus falls under the ambit of the current oath.

Pledging allegiance to the Queen also means pledging allegiance to the Constitution of Canada, and to the rule of law, because the Crown forms the basis of all legal-constitutional authority in and over Canada. Under a constitutional monarchy the Crown is and must always be subject to law.

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[1]Michael Ignatieff, Fire and Ashes: Success and Failure in Politics (Toronto: Random House Canada, 2013), 93.
[2] I will also explain in more detail later why the note does not support the Government’s argument that the Queen of the United Kingdom automatically becomes the Queen of Canada. Essentially, this is other one of the many anachronisms that now riddle the British North America Act, which was written when there was a one and indivisible Imperial Crown. The written constitution has not been updated to reflect Canada’s transition from self-governing Crown colony to an independent and sovereign state. And since the “Constitution of Canada” consists of codified and uncodified elements, the written constitution often does not reflect the true constitutional position. Other anachronisms include the provision that allowed the Governor General to reserve bills for the consideration of the British Cabinet. That procedure dates to an era where the Governors were and acted as agents of the British Government through the Colonial Office; it became obsolete in practice after the British issued new Letters Patent in 1878, and it became obsolete absolutely upon the passage of the Statute of Westminster, 1931.
[3] Canada. Library of Parliament, Oaths of Allegiance and the Canadian House of Commons, James R. Robertson, revised by Michel Bedard. (Ottawa: Her Majesty the Queen in Right of Canada, October 2008): 5. http://www.parl.gc.ca/Content/LOP/researchpublications/bp241-e.htm
[4]
The latter two oaths also contain the phrase “according to law,” which pertains directly to succession to the Crown and begs the question of “which law?” (The answer is that Canada has always had its own laws on succession through the Doctrine of Reception, and after 1937, because of an act of the Parliament of Canada).
[5] Sir William Blackstone, Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes, Volume 1, Books I & II, edited by George Sharswood (Philadelphia: J.B. Lippincott Co., 1893), 467.
[6] Sir William Blackstone, Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes, Volume 1, Books I & II, edited by George Sharswood (Philadelphia: J.B. Lippincott Co., 1893), 467.
[7] Sir William Blackstone, Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes, Volume 1, Books I & II, edited by George Sharswood (Philadelphia: J.B. Lippincott Co., 1893), 469.

Posted in Corporation Sole, Crown (Powers and Office), Succession (Sovereign) | 4 Comments

Harper’s Fourth Prorogation Looks Much Like His First


I thank James Anderson for having published this column on National New Watch’s Featured Ink earlier today.

Introduction

Prime Minister Harper advised that the 1st session of this 41st Parliament be prorogued on 16 September 2013, and that the 2nd session be summoned on 16 October 2013. In total, Prime Minister Harper has advised that parliament be prorogued four times – contrary to the Globe and Mail’s and CBC’s early reports that he had just undertaken his third this year. Some journalists forgot about Harper’s first prorogation because it did not generate any political controversy. Harper advised that the 1st session of the 39th Parliament be prorogued on 15 September 2007 and that the 2nd session be summoned with a Speech from the Throne on 16 October 2007. Harper’s second prorogation (5 December 2008 to 26 January 2009) and his third prorogation (31 December 2009 to 3 March 2010) proved more controversial because they gave the Government tactical advantage over the Opposition by, respectively, postponing a vote of confidence and a parliamentary investigation into the Afghan detainee file.

In short, Harper’s fourth prorogation most resembles his first – the timing and length are almost identical. Unlike his second and third prorogations of December 2008 and December 2009, respectively, and McGuinty’s prorogation of October 2012, Harper’s fourth prorogation in no way amounts to a tactical usage. Some Canadians have only questioned it because they have compared it to Harper’s second and third prorogations instead of to his first. The length of the intersession, at one month, conforms to all the legal-constitutional norms and federal practices. This prorogation is thoroughly ordinary for at least four reasons.

Four Reasons Why Harper’s Fourth Prorogation Is Thoroughly Ordinary

First, no one can claim that this prorogation came as a surprise; in fact, Prime Minister Harper took the unusual step of announcing several weeks in advance his intention to advise that Parliament be prorogued in the autumn. The Liberals and New Democrats knew what to expect and almost certainly planned for a prorogation this autumn. Harper announced his planned parliamentary timetable so early that the Globe and Mail published an inaccurate and hyperbolic editorial as early as August 2 – more than one month beforehand – in which the paper of record lashed out against Harper’s “third” prorogation (which in fact happened in 2009).

Second, the timing of this prorogation within the life of the parliament conforms to the norm. Since 1984, most sessions in majority Parliaments have lasted two years. The 1st session of this 41st Parliament started in June 2011 and ended in September 2013; in fact, it was the longest since the 1st session of the 32nd Parliament, which lasted from April 1980 to November 1983.

Third, every prorogation of the Parliament of Canada since 1867 has specified the date on which Parliament would return for the subsequent session. By custom, prorogation involves two proclamations: the first terminates the present session, and the second summons the next session for “dispatch of business.” The Governor General issues both proclamations on and in accordance with the advice of the Prime Minister, and the Deputy Attorney General and the Deputy Registrar General must counter-sign both proclamations, pursuant to the Seals Act. In fact, each proclamation even state that the Governor General, as the Queen’s representative, prorogues and summons Parliament “by and with the advice of Our Prime Minister.” If the Prime Minister does not know the date on which Parliament should reconvene, such as before an upcoming change of government, the Dispatch of Business summons Parliament 40 days later pro forma; the Prime Minister can then advise the Governor General to extend the duration of the intersession once the first Dispatch of Business expires. But that procedure will not apply to this case. In contrast, the procedures for prorogation in Ontario and most other provinces generally do not include the second proclamation for the dispatch of business. As we saw in 2012, Premier McGuinty advised that the legislature be prorogued on October 15 indefinitely; his successor, Premier Wynne, advised that the legislature be reconvened shortly after her appointment, on February 19. Harper’s fourth prorogation will last for one month, from September 16 to October 16 – the norm under Mulroney and Chretien.

Fourth and finally, Harper’s fourth prorogation truly is routine and should not generate the controversy that his second and third tactical (but constitutionally sound and legitimate) prorogations did four and five years ago. Harper now leads a majority government. This fourth prorogation came after the summer recess – which the intersession will end up extending until October 16 – and therefore did not postpone any pending business. The Harper government has exhausted its legislative program and passed all the bills that it still wanted to pass or could pass in the 1st session. Thomas Mulcair, Leader of Her Majesty’s Loyal Opposition, suggested that Harper opted for this intersession of one month in order to prevent questioning about the Senate Expenses Scandal, among other issues. The intersession would certainly delay such questions – but it will not make these political problems disappear.

Journalistic Hyperbole Seeps into Academic Writing

On 2 August 2013, the Globe and Mail released an absurd editorial criticizing Prime Minister Harper’s 4th prorogation – though the national paper of record described it throughout as Harper’s “third” prorogation, which in fact occurred in December 2009. The editors insist that “Parliament should not sit at the whim of the Prime Minister.” In reality, the Parliament of Canada has always “sat at the whim of the Prime Minister,” at least in the sense that the Prime Minister takes responsibility for the executive decision to summon and prorogue parliament. But the Government’s various responsibilities, notably implementing its platform or other policies and the annual budgetary cycle, must also factor into the Prime Minister’s “whims.”

The Globe also created an interesting neologism by accusing Harper of being a “serial proroguer.” Strictly speaking, this is true, if only because Harper has advised more than one prorogation. Most Prime Ministers are also “serial summoners” and “serial dissolvers” as well. The Globe then made the extraordinary claim that “No other modern prime minister has resorted to prorogation as often the current one.” This is false (though “modern” is a bit ambiguous). Prime Minister Chretien also advised four prorogations; Prime Minister Mulroney, three; Prime Minister Trudeau, eight. In any event, the Globe and Mail’s objection should pertain not to the number of prorogations that a Prime Minister may advise and receive over the course of his premiership, but rather the duration of the intersession – the days between prorogation and the Speech from the Throne. Mulroney started, and Chretien and Harper have continued, the trend toward longer intersessions. Mulroney’s first two intersessions each lasted 32 days, but his third prorogation conformed to the older pattern and lasted only one day. Chretien’s intersessions fell between 13, 23, 24, and 81 days. Harper’s intersessions fell between 31, 52, 62 days.

The Prorogation-Coalition Controversy of 2008 first brought prorogation, this once obscure but important power of the Crown, into prominence; it has also made any rational, calm discussion on it difficult – certainly in the media, but, more surprisingly and troublingly, within academia. Prorogation terminates a session of parliament, clears all government bills from the Order Paper, allows parliamentary committees to be reconstituted (such as after the appointment of new Senators), and ensures that the Government introduces its latest program in a Speech from the Throne that opens the next session. Dissolution extinguishes the parliament itself. However, since 2008, political rhetoric has crept into the debate and has replaced neutral descriptive terminology. Now prorogation does not merely “end a session” – it “shuts down” Parliament, with all the negative connotations of that verb. In extreme cases, prorogation might even “silence” Parliament, with the implicit comparison of Prime Minister Harper to a Stuart King. (Professor Lori Turnbull used both phrases in her recent column in The Globe and Mail.)

Conclusion: Prorogation and Responsible Government

While Harper’s fourth prorogation itself conformed to the federal customs and most legal-constitutional norms, the Prime Minister did make one significant mistake that contradicts the basic principle of Responsible Government. Unlike for his previous prorogations, Harper’s website did not confirm the length of the prorogation and the date on which the Governor General would summon the next session with the government’s Speech from the Throne. The Prime Minister has a duty to publish that information on his website in order to prevent anyone from contacting the Governor General about decisions of the executive government for which the Prime Minister and Cabinet take responsibility. On 4 September 2007, “Prime Minister Harper announced his intention to prorogue parliament. (Presumably, PMO had discussed the upcoming prorogation with Government House before publishing that news release). In December 2008, Harper spoke to reporters, after spending two hours in Rideau Hall, to confirm and defend the prorogation. In addition, on 30 December 2009, Harper’s website announced that a “Throne Speech [would] launch a new session of parliament.” While that news release and its accompanying backgrounder assiduously avoided any mention of “prorogation” for political and public relations purposes, it still allowed journalists to report that a prorogation had occurred, since Speeches from the Throne can only come after a prorogation. The Governor General’s Office should not have to field questions on matters of the executive government of Canada, because the Prime Minister and Cabinet take responsibility for all acts of the Crown. The Prime Minister – not the Governor General – must therefore explain the reasons behind and the consequences of an executive decision like prorogation.

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Posted in Crown (Powers and Office), Prorogation, Reaffirmation of, Responsible Government | 1 Comment