From Dominion Day to Canada Day: From Historical Significance To Banality


Dominion DayHistory of the “Dominion” of Canada

The re-organization of three British North American Crown colonies – the United Province of Canada, New Brunswick, and Nova Scotia – into a federation under the Imperial Crown created a unique type of polity.

John A. Macdonald first sought to name the new federal state resulting from Confederation “The Kingdom of Canada”, but the British Foreign Secretary vetoed the proposal, fearing that such a name would invite hostility from the American republic.[1]At the London Conference in 1866, the Fathers of Confederation and the British government needed to agree on a new name. Sir Samuel Leonard Tilley of New Brunswick supposedly provided this inspiration by looking to the King James Authorised Translation of the Holy Bible, and Psalm 72: 8, which reads: “And he shall have dominion also from sea to sea, from the rivers unto the ends of the earth.” This passage corresponds well to uniting British North America into one polity because the “he” refers to King Solomon, and Chapter 72 of the Psalm focuses on good kingship. While Canadian historian A.H.U. Colquhoun considers the biblical origins of the “Dominion of Canada” apocryphal (pun intended)[2], this passage probably still influenced the original choice of name of this country, “The Dominion of Canada.” The Department of Canadian Heritage acknowledges that the national motto contained in our coat of arms, Ad mari usque ad mare (“From Sea to Sea”), comes from Psalm 72:8. The ribbon of our coat of arms contains the phrase desiderantes meliorem patriam (“desiring a better country”), which comes from Hebrews 11:16.

The first recital of the preamble of the British North America Act, 1867 thus recognizes this novel arrangement – a federation and constitutional monarchy under the Imperial Crown – as a “Dominion.” In 1879, the Parliament of Canada officially recognized July 1st as Dominion Day through the Dominion Day Act. The preamble of the bill noted the historic significance of July 1st and the created of the Dominion of Canada in 1867:

Whereas, it was on the first day of July that the Provinces of Canada, Nova Scotia, and New Brunswick became one Dominion, under the name of Canada;
And whereas Rupert’s Land and the North-west Territory, and the Province of British Columbia became part of the Dominion in the month of July, and Prince Edward Island became part of the Dominion of the first day of July;
And whereas it is expedient that such important events should be commemorated:

This name for our national day would endure for over one century, though the Parliament of Canada and the Canada Gazette both dropped the term in the later 1940s.

Contrary to what some of my readers have suggested in the comments section on previous, similar posts, I am not arguing that Sir Samuel Leonard Tilley created the word “Dominion” for the first time — which, frankly, should be rather obvious, given that I also suggested that Tilley and our Fathers of Confederation derived the use of the word from the King James Authorized Translation of the Holy Bible and Psalm 72:8. The English word “Dominion” is therefore at least as old as the KJV itself, which first came out in 1611. As the Bible shows, “Dominion” has always had a political connotation in the English language; in Psalm 72:8, it evokes having control or sovereignty over a territory. While republicans would argue that it meant British control over Canada, I would suggest that it meant Canada’s consolidation of and control over British North America. “Dominion” also appears in the Bill of Rights, 1689. During the Glorious Revolution, Bostonites and New Yorkers revolted, the colonies in northeastern British America rebelled against the deposed King James II and his appointed Governors, and established the “Dominion of New England”, which consolidated all the colonies of that region into one. While this entity bore the name “Dominion,” its political structure differed significantly from the Dominion of Canada and the other self-governing dominions of the 19th and 20th centures. In other words, the same word was used to describe two completely different governing arrangements.

The use of “Dominion” to describe the unique polity of a self-governing territory under the indivisible Imperial Crown of the 19th century originated here in Canada and later came to be applied to other the self-governing British Crown colonies in Australasia. The St. Laurent, King, and Pearson governments phased out the use of “The Dominion of Canada” on most government and parliamentary letterheads in favour of the more pedestrian “Canada.” Canadians were the first to describe this new self-governing federation under the Imperial Crown that enjoyed autonomy and responsible government in its domestic affairs as a “Dominion.”

Eugene Forsey on the Banality of “Canada Day”

On 12 March 1970, Eugene Forsey appeared before a parliamentary committee and discussed the perennial proposition to change the name of July 1st from Dominion Day to something else. Ultimately, Parliament changed the name of our national day in the early 1982 from the historically significant “Dominion Day” to the historically bereft and pedestrian “Canada Day” – as if Canadians didn’t already know that they lived in Canada and needed the government to remind them of the country’s name.

Professor Forsey has provided witty testimony against the republicans who sought to erase Dominion Day and replace it with banal platitude.

Well, I think it [Canada Day] is devoid of the historical associations which you do get either in Dominion Day or in Mr. Hogarth’s suggestion Confederation Day. It takes the historical zip out of the thing somehow and it seems to me that you want to have something in the name of the day if possible. You want to have something to commemorate some historical event and this was a meaningful historical event. Just as I would say, if the United States called its national holiday “United States Day”, that would be a rather colourless and banal description of that day. They call it, to the best of my belief, “Independence Day”, and I think that immediately recalls to every American the fact that on July 4, 1776, the 13 colonies became the United States of America. I think it has an evocative touch to it that you would not get if you simply said “United States Day.” [...] Similarly, if you called the French national holiday “Bastille Day”, as I think it usually is called, again it seems to me that you would be taking some of the historical significance out of the thing.

In 1970, the Trudeau government was still attempting to change the name of our national holiday legitimately and under the full scrutiny of a government bill tabled by a responsible minister and put before a committee of the House of Commons. Having failed to achieve its revolutionary aim through the standard parliamentary process in the 1970s, some Liberal backbenchers sympathetic to the Trudeau Project seized their opportunity on 9 July 1982 to ram a private member’s bill to the same effect through the House of Commons at 4:30 on a Friday afternoon – all without the quorum of 20 members mandated by section 48 of the British North America Act, 1867.

1982: July 1st Goes from “Dominion Day” to “Canada Day” – Without Proper Parliamentary Quorum

On the afternoon of 9 July 1982, thirteen MPs rammed the Act to Amend the Holidays Act through Second Reading, Committee, Report, and Third Reading in mere minutes in order to change the name of Canada’s national day from Dominion Day to Canada Day. The official transcript of this incident takes up only one page’s worth of space in the Commons Debates, and the House immediately adjourned thereafter.

Liberal MP Hal Herbert moved that Bill C-201 be given Second Reading and referred to its corresponding Standing Committee, and the Deputy Speaker agreed. The bill moved through the House of Commons with such haste that it caught the Conservative MP for Nepean-Carleton, David Baker, off guard. The transcript shows that he asked, “What is going on?” just before the Deputy Speaker asked for the unanimous consent of the House that the bill be dealt with by the Committee of the Whole.[3] No one answered his question. David Smith, then a Liberal MP and now a Liberal Senator Senate Liberal, rose on a point of order in favour of passing the bill. Liberal MP for Ottawa-West, Cyril Lloyd Francis, chaired the Committee of the Whole and passed the bill: “Clause 1 agreed to. Preamble agreed to. Title agreed to. Bill reported, read the third time and passed.”[4] After participating in this charade and mockery of the parliamentary process, New Democratic MP Mark Rose proudly proclaimed, “I think this is a day on which to develop and to celebrate our new holiday. It is only appropriate that, in celebrating our new holiday called Canada Day, we should at least take a holiday of 55 minutes for the afternoon.”[5]

In his triumphalism, Rose brazenly glossed over the parliamentary coup d’état in which he had just participated. The House of Commons acted unconstitutionally and did not validly pass this bill, because section 48 of the British North America Act, 1867 mandates that a quorum in the House of Commons is 20, not 13: “The Presence of at least Twenty Members of the House of Commons shall be necessary to constitute a Meeting of the House for the Exercise of its Powers, and for that Purpose the Speaker shall be reckoned as a Member.” For this reason alone, the bill should not have regarded as legitimately passed onto the Senate, and the Senate should have rejected it. In addition, this private member’s bill was not, and could not have been construed as, a matter of confidence in the Trudeau government, so rejecting it would not have threatened the government’s parliamentary position. I’ve heard the argument that Speaker Jeanne Sauvé ultimately should have allowed the debate to stand despite the fact that the Commons fell short of its constitutionally-mandate quorum of 20 MPs because none of the MPs present during the debate protested the lack of quorum. This argument is flawed for two reasons. First and most fundamentally, the Constitution of Canada is the supreme law of the land, and though the House of Commons has the authority to control its own internal affairs, its Standing Orders must conform to the Constitution. If the Standing Orders and a specific provision of the Constitution come into conflict, the Constitution must prevail. Second, David Baker probably would have objected at the time if he had grasped the significance of the parliamentary usurpation that his colleagues were in the middle of orchestrating. Conservative Senator David Walker noted that the House of Commons passed the bill with only 13 members and “to make sure that the bill slipped through, a member asked for ‘unanimous consent that the clock now read five o’clock’” so that the House adjourned immediately after passing the bill, thus precluding any further objections to it that day.[6] Since the House of Commons failed to uphold the Constitution, the Senate should have done so by rejecting the bill.

Senate Debates on the Bill

In The Strange Demise of British Canada: The Liberals and Canadian Nationalism, 1964-1968, Chris Champion notes that Prime Minister Pearson and his cabinet ministers legitimated their “neo-nationalism” of making Canada independent from the British Empire and United Kingdom ironically by portraying their ideas as having flowed naturally from Canada’s British inheritance.[7] In fact, they were trying to substitute one system or another. These neo-nationalists believed that Canada must replace its “traditional identity and symbols with new ones, now matter how many Canadians opposed it,” and they portrayed their political opponents as “reactionaries mired in nostalgia.”[8] In this way, neo-nationalists function rather like the vanguards of the proletarian revolution because they must drag this “Ready, Aye, Ready” Canadians who cling to Empire into modernity and out of their false Imperial consciousness. The neo-nationalist views Canadian history as a “nationalist teleology” such that Canadians have inevitably sought to eliminate what they would consider colonial vestiges in a journey from colony to nation[9] – and ultimately, to a republic.

In this neo-nationalist mould, Liberal Senator Florence Bird supported the bill and moved it to Second Reading in the Senate. Bird emphasized Canada’s inheritance of Westminster parliamentarism, trial by jury, the common law, and the recognition of fundamental freedoms like the freedom of speech.[10] She regarded the transformation of Dominion Day into Canada Day as the culmination of Canada’s independence as a sovereign state. Bird cited the Statute of Westminster, 1931 and the Royal Style and Titles Act, 1953, and the Patriation of the Constitution itself as other examples and characterized this bill as “celebrating the national day of Canada as a completely independent country.”[11] Bird sought to delegitimate “Dominion Day” by turning it to the neo-nationalist’s foreign “other”, and creating a false dichotomy between “Dominion” and “Canada,” as if the two terms were contradictory rather than complimentary.

In her new construction, only paleo-nationalistic reactionaries loyal to the United Kingdom would opt for the colonial baggage of “Dominion,” while true Canadians loyal to Canada would choose “Canada.” Bird asked rhetorically, “Do you think that the men who fought in two world wars were fighting for dominion, or do you think that they were fighting for Canada? Those men wore proudly the word ‘Canada’ on their shoulder patches.”[12] Bird portrayed “the Dominion of Canada” as a colonial artifact that signified Canada’s subordination to the Imperial Crown by pointing out that Canadians now swear an oath of allegiance to “the Queen of Canada, not to the Queen of the British Dominion Beyond the Seas.”[13] In 1867, the Dominion of Canada was a federation and Crown colony under the Imperial Crown, but the Imperial Crown had long since multiplied into the personal union by 1982. Bird concluded that Canada had finally “achieved full nationhood” in 1982 and that “the days of our so-called inferiority complex are over.”[14] In reality, of course, “Dominion” is a Canadian invention.

Liberal Senator George McIlraith argued that a Minister of the Crown should have tabled the bill as a government bill and that the Senate should let the bill die on the Order Paper rather that defeating it so that a Minister could re-introduce it as a government bill in the next session.[15] Senator Ernest C. Manning implored his colleagues to reject the bill outright because of the unconstitutional manner in which the Commons had passed it; he noted that the Trudeau government had tabled similar government bills to this effect in the 1970s.

They [the previous iterations of this bill] were not proceeded with in the other place [the House of Commons] because opposition to them was such that the [Trudeau] government wisely did not want to make an issue out of the legislation. In this case, as has been outlined, the matter was sneaked through the other house without debate, with less than a quorum in the house, and it now turns up on the Order Paper on this chamber for sober second thought.[16]

Manning also protested against the Liberals’ attempt to “wipe out one more part of Canada’s heritage by abolishing Dominion Day and all that its name implies to millions of Canadians and replace it with a name that has absolutely no historic significance.”[17] Manning accused the Trudeau government – quite rightly – of having engaged in “a long series of deliberate steps to chip away at all those things which pertain to the rich heritage of this country’s past.”[18]

Conclusion

I don’t share Forsey’s hostility to “Confederation Day,” though I would have preferred to maintain the original name. If the Parliament of Canada had to rechristen our national day, “Confederation Day” would have provided a much more suitable replacement, because it dignifies the creation of the Dominion of Canada on July 1st, 1867 with the historical gravitas and significance that the day deserves. A name like “Confederation Day” would also implicitly recognize that Canada’s history does not start at a French Revolution-style Year Zero in 1867. In terms of Canada’s political evolution, 1848, when London granted the United Province of Canada responsible government – is a far more significant year than is 1867. In contrast, “Canada Day” has the air of a prosaic, banal, non-descript, unoriginal, and politically correct moniker created solely to minimize offence. It does not convey any concrete meaning, and it implies that Canadian history begins in 1867 and that anything which antedates Confederation is “British” or “Imperial” and therefore ought to be filed under forgotten and treated as a shameful anachronism.

Our sister realm of Australia calls itself officially “The Commonwealth of Australia” without monarchical pretension, and in Australia, “the Commonwealth” or “the Commonwealth government” serves as a metonymy for the federal government of Australia much as “Dominion” and “Dominion government” once did here in Canada. That said, Australia has adopted the equally banal and politically correct name of “Australia Day” for its national holiday. I once thought that any attempt to restore the long-form of this country’s name to The Dominion of Canada – perhaps for the Sesquicentennial in 2017 – would be portrayed as an unpardonable imperial retrogression; I now suspect that it would, if anything, simply be met with confusion and bewilderment rather than hostility. At least hostility would imply some kind of engagement on the issue; the confusion that would likely result shows that over the course of thirty-one years, Canadians have been deracinated from their history and raised on Pearsonian neo-nationalism, and that Canada’s old official name, “Dominion,” has been successfully denormalized and delegitimated. I find myself in a George Grant-like lament for a nation. I do lament the loss of Dominion Day, both because I disagree with the substance of the bill and because I disagree with the unconstitutional knowingly fraudulent manner in which Liberal neo-nationalists rammed it through the Commons. Sadly, the “Dominion of Canada” and “Dominion Day” have been consigned to the proverbial revolutionary’s dustbin of history. Unfortunately, the neo-nationalists and crypto-republicans won this battle. But the slow death of “Dominion” in Canadian public institutions did not occur inevitably according to some post-colonialist or republican teleology: successive governments let it decline and made the decision to abandon it.

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[1] Janet Ajzenstat et al., ed. Canada’s Founding Debates. (Toronto: University of Toronto Press, 1999): 60.
[2] George M. Wrong and H.H. Langton, ed. The Chronicles of Canada: Volume VIII – The Growth of Nationality (Tuscon, AZ: Fireship Press, 2009): 61.
[3] David Baker, Commons Debates, 31st Parliament, 1st Session, 9 July 1982: 19201.
[4] Ibid.
[5] Ibid., 19202.
[6] Senator David Walker, Senate Debates, 31st Parliament, 1st Session, 3 August 1982.
[7] C.P. Champion, The Strange Demise of British Canada: The Liberals and Canadian Nationalism, 1964-1968 (Montreal-Kingston: McGill-Queen’s University Press, 2010), 3-15.
[8] Ibid., 15. For instance, Pearson even tabled the resolution to adopt the Maple Leaf flag on the 749th anniversary of Magna Carta.
[9] Ibid.
[10] Senator Bird in Senate Debates, 32nd Parliament, 1st Session, 22 July 1982: 4668.
[11] Senator Bird in Senate Debates, 32nd Parliament, 1st Session, 22 July 1982: 4668.
[12] Ibid.
[13] Ibid.
[14] Ibid., 4669.
[15] Senator McIlraith in Senate Debates, 32nd Parliament, 1st Session, 22 July 1982: 4671.
[16] Senator Ernest C. Manning in Senate Debates, 32nd Parliament, 1st Session, 22 July 1982: 4672.
[17] Ibid.
[18] Ibid., 4673.

Posted in History of British North America | 3 Comments

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) | 7 Comments

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 | 5 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