Fixed-Date Election Foibles in the Provinces



After the federal general election of May 2011, some provinces found themselves facing the prospect of holding their provincial general elections simultaneously with the federal general election that will occur (presumably still) in October 2015. At the time, Saskatchewan, Manitoba, Ontario, Prince Edward Island, and Newfoundland & Labrador faced what would be, under Canadian norms, a logistical nightmare: amongst Canadian political parties, only the New Democratic Party is fully integrated at the federal and provincial levels, and support for one like party at the federal level does not always translate into support of the like party at the provincial level.

Premier Wynne advised an early dissolution in May 2014, and her Liberals won a parliamentary majority. Therefore, Ontario’s next provincial general election is now scheduled for October 2018 and as of 2014, will not overlap with any federal general election (though this could change). But that leaves the other four provinces in a lurch. Faced with this problem, the legislatures of Manitoba, Saskatchewan, and Prince Edward Island have adopted amendments to their provincial fixed-date election laws such that their provincial general elections would be delayed under the following April if they would have otherwise coincided or overlapped with a federal general election in October. But Newfoundland & Labrador’s legislature never adopted such an amendment.

Finally, Premier Prentice of Alberta is almost certainly going to advise a dissolution of the current legislature one year earlier than the scheduled; Alberta’s fixed-date election law currently mandates that the next general provincial election will occur between March 1 and May 31, 2016.


Newfoundland and Labrador passed the second fixed-date elections law in Canada in 2004 by amending its House of Assembly Act and Elections Act. [1] It is unique in Canada – and almost certainly unconstitutional, though it is unclear who would have standing in the courts to challenge it as such.

Section 3(1) includes a standard non-derogation clause that preserves the established constitutional position of the Premier and Lieutenant-Governor:

Notwithstanding subsection (2), the Lieutenant-Governor may, by proclamation in Her Majesty’s name, prorogue or dissolve the House of Assembly when the Lieutenant-Governor sees fit.[2]

Section 3(2) sets the fixed election every second Tuesday in October, starting in 2007. Newfoundland held its second election pursuant to the fixed date in 2011 and scheduled to hold its third in October 2015.

However, the law then adds its unique – and probably unconstitutional – innovation in section 3.1, “Election on change of Premier.” The law could also turn a political issue into a constitutional issue, and potentially even into a constitutional crisis.

Where the leader of the political party that forms the government resigns his or her position as leader and as Premier of the province before the end of the third year following the most recent general election, the person who is elected by the party to replace him or her as the leader of the party and who is sworn in as the Premier of the province by the Lieutenant-Governor shall, not later than 12 months afterward, provide advice to the Lieutenant-Governor that the House of Assembly be dissolved and a general election be held.[3]

This law springs from the view that a Premier appointed mid-parliament should have to “seek his own mandate” from the electorate in an early general election because this is more “democratic.”

In Canadian law, shall is imperative and therefore means must.[4] The law mandates that the Premier advise the Lieutenant Governor to dissolve the Assembly and thus infringes upon the constitutional relationship between the two. A statute law can no more forbid the Premier from advising the Governor to dissolve the assembly than it can force the Premier to advise the Governor to dissolve the assembly. Most interestingly of all, this section 3.1 is not subject to the non-derogation clause of section 3(1), which only applies to section 3(2). Under section 3(1), the Premier may advise an early dissolution, but under section 3.1, he or she must advise an early dissolution. Newfoundland and Labrador’s law therefore preserves the Premier’s discretion to advise an early dissolution, as do all the other fixed-date election laws, but it would prevent a Premier appointed mid-parliament from serving for the remainder of that parliament.

Worse still, the law does not make provision for a Premier and party leader ousted by cabinet or caucus, for a Premier who dies in office, for a Premier who is dismissed by the Lieutenant Governor, or for a Premier who becomes incapacitated.[5] The law could have avoided this ambiguity and the problematic omission of dismissal and death in office by remaining silent on the outgoing Premier and the manner of his or her resignation or dismissal, and instead focus exclusively on the incoming Premier. For instance, the law could have specified that “upon a change in Premier,” the new Premier give certain advice. While this would still be unconstitutional, it would at least maintain the virtue of covering a greater array of possible situations.

On 22 January 2014, Kathy Dunderdale announced that she would resign as Premier of Newfoundland and Labrador. Normally, the outgoing Premier would not formally tender her resignation until after the party had held a leadership convention and elected a new leader. But the Progressive Conservative Party of Newfoundland and Labrador took the unusual step of forcing Kathy Dunderdale’s immediate resignation as party leader, and therefore also as premier, so that the Lieutenant Governor could appoint the Finance Minister, Tom Marshall, as “Interim Premier.” Marshall has indicated that he will only serve as Premier for “a few months,” after which he will resign the leader of the Progressive Conservative Party and the premiership in favour of whomever the party selects as its new leader. That leadership convention, originally scheduled for July 2014, was delayed until September 2014.[6] On 13 September 2014, the Progressive Conservative Party elected Paul Davis as leader[7]; after a transition of 13 days, Marshall resigned, and the Lieutenant Governor appointed Paul Davis as Premier.[8]

Section 3.1 states that a new party leader and premier must advise the Lieutenant Governor to dissolve the legislature within twelve months only if he or she is appointed “before the end of the third year following the most recent general election.” In this case, that timeframe would apply to a premier appointed before October 2014, since the last provincial general election occurred in October 2011 and the next is scheduled for October 2015. But it remains unclear whether the point of reference for this requirement hinges upon Tom Marshall’s appointment on 24 January 2014, or, rather, upon Paul Davis’s appointment on 26 September 2014. Since Tom Marshall served as “Interim Premier” for only 9 months, has Premier Davis inherited those 9 months such that he would have to advise an early dissolution within 3 months of his appointment, or, alternatively, does the timeline for this requirement reset upon his appointment and thus give him 12 months? The answers to these questions remain unambiguous and unclear because this faulty fixed-date election law did not account for all the possible types of transitions from one Ministry to another. Under the first interpretation, Premier Davis would have to advise an early dissolution by January 2015 for an election in February or March 2015. Under the second interpretation, Premier Davis could wait until September 2015 before advising the Lieutenant Governor to dissolve the current legislature – even though the law would have mandated that the next provincial general election take place in October 2015 irrespective of the date of his appointment. If the second possibility is correct, then the procedure under section 3.1 is redundant in this case because it would force the Premier to advise the Lieutenant Governor to dissolve the legislature and call an election on the timetable when the fixed-date election would have occurred anyway. I would posit that the first interpretation is correct, and that Premier Davis must advise dissolution in January 2015 because he inherited this requirement from his predecessor, Tom Marshall; Wikipedia, however, disagrees.[9]

In conclusion, while Newfoundland & Labrador’s fixed-date election law is unconstitutional, it will remain in force unless and until a court recognizes its unconstitutionality and strikes it down as ultra vires of section 41(a) of the Constitution Act, 1982. And as long as the law remains on the books, the Premier must abide by it. But Premier Paul Davis might have already breached this law by failing to advise an early dissolution. And even if Premier Davis has not violated the terms of the act, Newfoundland & Labrador is currently scheduled to hold its next provincial general election in October 2015 concurrently with the federal general election.

Despite all this obvious confusion, the law and its implications have generated little to no discussion on The Rock. At this stage, the legislature of Newfoundland and Labrador should amend its fixed-date election law as those of Manitoba, Saskatchewan, and Prince Edward Island have done. It should also repeal section 3.1, which is at best ambiguous and confusing and at worst is unconstitutional and ultra vires of section 41(a) of the Constitution Act, 1982. If the legislature insists on keeping the provision, it should at least simplify it so that it covers any and all mid-parliamentary changes of government.


Manitoba also passed its law in 2008, and it conforms to the Canadian norm. Section 49.1(1) of its Elections Act contains the non-derogation clause:

Nothing in this section affects the powers of the Lieutenant Governor, including the power to dissolve the Legislature at the Lieutenant Governor’s discretion.[10]

In 2012 the Selinger Government introduced a bill to “postpone [the] fixed-date election.” The amended law now prevents any future provincial general election from overlapping with a federal general election:

Despite clause (2)(b), if the election period for a general election to be held in October under that clause will, as of January 1 of the year of the election, overlap with the election period for a general election to be held under subsection 56.1(2) or section 56.2 of the Canada Elections Act, the general election must be held instead on the third Tuesday of April in the next calendar year.[11]

Manitoba pioneered this ad hoc amendment of delaying the provincial general election by six months if it happened to coincide with a federal general election, and Saskatchewan and Prince Edward Island later adopted it. However, Manitoba’s law contains an interesting detail that Saskatchewan’s and Prince Edward Island’s do not.

Manitoba held its last election on 4 October 2011; in the absence of a federal general election, the next provincial general election would occur in October 2015. However, Elections Manitoba announced on 5 January 2015 that the next provincial general election will occur instead on 19 April 2016 because as of 1 January 2015, the next federal general election was still scheduled to occur in October 2015.[12]

The wording of Manitoba’s fixed-date elections law – particularly that clause “as of January 1 of the year of the election” – means that even if Prime Minister Harper decides to advise an early dissolution so that the federal election occurs before than the scheduled date in October 2015, thus preventing the federal general election and Manitoba’s provincial general election from coinciding, Manitoba’s next provincial general election will still occur in April 2016.

Once again, fixed-date election laws have served only to complicate matters. They are worse than redundant: they are, in fact, a general nuisance. In addition, the Legislative Assembly of Manitoba has extended its own life from 4 years to 4.5 years – and thus also helped prop up a beleaguered Premier Selinger, who last year faced the resignation of 5 of his cabinet ministers in a joint press conference and who just narrowly won re-election as leader of the New Democratic Party of Manitoba.


Alberta’s fixed-date election law, like Newfoundland & Labrador’s, contains a unique formula – though it remains constitutional. Alberta passed its fixed-date elections law in 2011 with a slight variation to the Canadian model, which would spare the province from the logistical problem of concurrent federal and provincial elections. Section 38.1(1) of its Election Act contains the non-derogation clause:

“Nothing in this section affects the powers of the Lieutenant Governor, including the power to dissolve the Legislature, in Her Majesty’s name, when the Lieutenant Governor sees fit.”[13]

Rather than fixing the election on a precise day of the month, section 38.1(2) builds in a flexible date “within a three-month period beginning on March 1, 2012 and ending on May 31, 2012.” Subsequent elections will fall within that range of three months every four years. The next general provincial election is thus scheduled to take place between March 1 and May 31, 2016.

However, Premier Jim Prentice has been preparing himself for the last few months to advise an early dissolution this month, in March 2015, so that he can obtain a mandate from Albertans on his government’s upcoming budget. More generally, Prentice will also seek a mandate for himself because the Lieutenant Governor appointed him mid-parliament after a furore and personal controversy involving Premier Redford.

Prentice has stated, correctly, that he retains the authority to advise the Lieutenant Governor to call an early election. He told iPolitics:

 We do need an election eventually. In the legislation that we have in place, there needs to be an election by the window of March of 2016. The legislation does permit an earlier date. Clearly when that provision was put in place, no one contemplated the financial situation we’re in now. […]

I think Albertans need to have a say in that, I think they need to be consulted. […] It would be irresponsible to not give them the final say in terms of whether they agree with that or not. I’ve not chosen when an election will happen but I do think a premier and a government facing these kinds of exigent circumstances needs to have the strong support of Albertans.[14]  

Echoing David Onley, Donald Ethell, the Lieutenant Governor of Alberta, has explained the established constitutional position on dissolution: he acknowledged that he would be bound to accept the advice of a premier whose government commands the confidence of the legislative assembly and that the premier takes responsibility for the political decision to hold an early election:

I’m the one who’s got to sign off on the Order in Council and I would think that it would be represented by the premier as having the confidence of the house. If he has the confidence of the House, then I really don’t have any argument with that.

[Albertans] just want the government to get on with business so if that means dissolving and going for an election then so be it, but that’s a political decision, not mine.[15]

Premier Prentice will undertake an American-style “address the nation” televised speech this evening in what will necessarily amount to a pre-writ campaign speech and appeal to Albertans to support his government’s upcoming budget.[16] Prentice’s Progressive Conservatives all but destroyed the Wild Rose Party as an effective opposition and alternative government in December 2014, when their former leader, Danielle Smith and several of her colleagues crossed the floor to join the Progressive Conservative Party and the government; he will almost certainly secure re-election with another parliamentary majority this spring.


All of the provincial fixed-date election laws contain the same non-derogation clause preserving the establishing constitutional relationship between the governor and first minister, so theoretically, the media should have criticized Premier Marois and Premier Wynne last year for advising early dissolutions in their respective provinces, and they should be criticizing Premier Prentice for preparing to do the same. But most journalists have hardly mentioned the fixed-date election laws at all, and if they do, they now acknowledge, correctly, that they do not prevent the first minister from advising and receiving an early dissolution.

The Canadian media have thoroughly moved on from their erroneous refrain in 2008 that “Harper broke his own law” when he advised an early dissolution. Even now, I still can’t help but wonder whether the furore that they generated in 2008 was primarily partisan, and I still suspect that a Liberal Prime Minister would not have met the same vociferous criticism – though this is ultimately an unverifiable hypothesis. It is also possible that the highly charged atmosphere of those hung parliaments between 2004 and 2011 prompted the media narrative of the time. At this stage, I’m just thankful for some more neutral and informative coverage of these early provincial elections. But I still think that all the fixed-date election laws should be repealed, since they do nothing substantive except shorten the life of a parliament or legislative from five years to four (or four and one half under some conditions in Manitoba, Saskatchewan, and Prince Edward Island) – and even that measure was unnecessary. Overall, they only complicated matters, and the provinces in particular have shown that legislatures must frantically adopt ad hoc amendments to them in order to prevent political inconveniences.

With the legislatures able to modify or repeal these laws, and the first ministers still able to advise and receive early dissolutions, fixed-date elections are fixed until they are not.

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 [1] Newfoundland and Labrador, House of Assembly Act, RSNL1990, Chapter H-10.
[2] Newfoundland and Labrador, House of Assembly. An Act to Amend the House of Assembly Act and the Elections Act, 1991, 45th General Assembly, 1st Session, 53 Elizabeth II, 2004.
[3] Newfoundland and Labrador, House of Assembly. Bill 40: An Act to Amend the House of Assembly Act and the Elections Act, 1991, 45th General Assembly, 1st Session, 53 Elizabeth II, 2004.
[4] Interpretation Act, R.S.C. 1985, c. I-21; Ruth Sullivan, Statutory Interpretation (Toronto: Irwin Law, 2007), 73.
[5] John Pepall, Against Reform (Toronto: University of Toronto, 2010), 155.
[6] Globe and Mail, “Newfoundland Tories Re-Start Leadership Contest with September 13 Vote,” 20 June 2014. [Accessed, 24 November 2014].
[7] Sue Baily, “Paul Davis to Become Next Premier of Newfoundland and Labrador,” Globe and Mail, 13 September 2014. [Accessed, 24 November 2014].
[8] Sue Baily, “New Newfoundland and Labrador Premier Vows Action on Crime and Mental Health,” Globe and Mail, 26 September 2014 [Accessed, 24 November 2014].
[9] Wikipedia, “49th Newfoundland and Labrador General Election.” [Accessed, 24 November 2014].
[10] Manitoba, Legislative Assembly. An Act to Amend the Elections Act, 39th Legislative Assembly, 2008
[11] Manitoba, Legislative Assembly. The Election Financing Act and Elections Amendment Act. Bill 33, 40th Legislature, 1st session, 2012.
[12] Elections Manitoba, “Manitoba’s Set Date Election Moves to April 2016,” 5 January 2015.
[13] Alberta, Legislative Assembly. An Act to Amend the Election Act, Bill 21. 27th Legislature, 4th Session, 2011.
[14] iPolitics, “‘We’ll Get Through This’ – Jim Prentice in Conversation,” 8 March 2015. [accessed 15 March 2015]
[15] Matt Dykstra, “Alberta’s Lt-Gov. Donald Ethell Talks About Budget 2015, Looming Election,” Edmonton Sun, 9 March 2015.
[16]Trisha Estabrooks, “Alberta Government Ramping Up Prior to Expected Election,” CBC News, 23 March 2015.

Posted in Crown (Powers and Office), Dissolution, Fixed Elections, Reform | Leave a comment

Which Party Becomes the Official Opposition In the Event of a Tie? Canadian Precedents


When I first wrote this entry three years ago, a friend had asked me which party would become Her Majesty’s Loyal Opposition, or Official Opposition, in the House of Assembly of Newfoundland and Labrador if the two opposition parties won precisely the same number of seats in that province’s last general election in 2011. At the time, the Liberals edged out the New Democrats by one seat in order to become the Official Opposition, and the Progressive Conservatives easily won another majority.

As of December 2014, the Legislature of Alberta now finds itself in the same situation. Since Danielle Smith and several of her colleagues have crossed the floor in an unprecedented example of crass self-interest, the remant of the Wildrose Party now has the same number of seats as the Alberta Liberals, and Raj Sherman, leader of the Alberta Liberals, has asked the Speaker to recognize his party as the new Official Opposition.

As the federal and provincial examples below show, incumbency has generally been the deciding factor — except (of course) in the Province of Alberta! But the precedents are mixed because the circumstances of each case were unique. Furthermore, this case is unprecedented and thus whatever decision that the Speaker of the Legislative Assembly of Alberta makes warrants its own distinct rationale, not a rote rendering of the stare decisis doctrine.


I wrote about Speaker Parent’s Official Opposition Ruling in the 35th Parliament in preparation for an article on the history and evolution of loyal opposition in the Westminster system. While I think that Speaker Parent made the wrong decision for the wrong reasons, he mentioned similar cases in Alberta and New Brunswick in which the Speakers of their respective legislatures had to rule on which parties assumed the role of Official Opposition in the event of ties.

“An equality of seats in the two largest opposition parties should neither deny the members of the Bloc Quebecois their position today as the official opposition nor prevent them from choosing from among their members the leader of the official opposition. Thus the Bloc Quebecois will currently retain its status as the official opposition until a further review of this status is warranted.”

This case came from the 2nd session of the 35th Parliament (elected in 1993), in which Quebeckers elected 54 MPs from the Bloc quebecois, and Westerners elected 52 MPs from the Reform Party. The Bloc quebecois became the Official Opposition — and, in this case, ironically could have been called “Her Majesty’s Loyal Opposition” even though most of those Bloc MPs were anti-monarchists and all of them wanted Quebec to secede from Canada.

By the time that the 2nd session of the 35th Parliament began in 1996, two MPs from the Bloc quebecois had resigned, which meant that the Reform Party and Bloc quebecois each had 52 MPs. In this instance, Gilbert Parent issued a Speaker’s Ruling at the request of the Reform Party and declared incumbency the decisive factor, and thus that the Bloc quebecois would retain its role as the Official Opposition. Presumably, if the Bloc had lost three members, then the Reform Party would have become the Official Opposition.


The Legislative Assembly and Executive Council Act of Saskatchewan defines the Official Opposition as such:

‘Leader of the Opposition’ means the member who is designated by the opposition caucus as its leader and who is recognized as leader of the opposition caucus by the Speaker.

Section 63 of the Legislative Assembly and Executive Council Act, shown below, prescribes how the Speaker must recognize a leader of the opposition and means that if two parties in opposition had an equal number of seats, then the two parties would somehow alternate as Official Opposition and their respective leaders would receive the same salaries:

(2) If there is an equality of membership between the two largest caucuses sitting in the Legislative Assembly in opposition to the Government: (a) the salaries provided for by sections 59 and 61 must be added together; and (b) the total derived pursuant to clause (a) must be divided equally between the respective leaders of those caucuses.

The Legislature of Saskatchewan decided to codify this arrangement in law, and thus reduce the discretion of the Speaker, because of a specific incident. Over the course of the 18th Legislature, two Liberal MLAs switched allegiance to the Conservative party, also in opposition, and the Conservatives won two by-elections. After gaining four members, the Liberals and Conservatives held an equal number of seats from 24 June 1977 to the dissolution of the legislature on 19 September 1978. The leader of the Liberal Party, Edward Malone, and the leader of the Conservative Party, Richard Collver, in effect both became the Leaders of the Official Opposition.


In 1983, the New Democrats had two seats in the assembly, and there were also two independents in the assembly. The Speaker of the Legislative Assembly of Alberta ruled on which would be recognized as Her Majesty’s Loyal Opposition.

Speaker Amerongen ruled that the assembly would recognize the New Democrats as the Official Opposition because they had won a greater share of the popular vote than the two independent MLAs. In short, he made the right decision, but for the wrong reasons. An electoral political party, even if it does not meet the minimum threshold to be recognized as a parliamentary party, should take precedence over a collection of independent MLAs. In addition, extra-parliamentary considerations like percentage of popular vote should not enter into a parliamentary decision.

“No precedent or rule has been discovered or given to me where the designation of an Office Opposition has been based on circumstances outside a parliament. However, given the need to make such a decision, it does seem advisable that if factors within these four walls do not provide a solution, one must go outside for an answer based on well-known facts.”

The Speaker also rejected incumbency as the deciding factor: “However, no precedent shows that incumbency or continuity has been the deciding factor, or any real factor at all, in recognizing an opposition leader.” In 1983, it was true that no Canadian precedent hinged upon incumbency. But the Speakers of the Legislative Assemblies of New Brunswick and Yukon and of the House of Commons have since ruled that the incumbent party in Official Opposition would retain its status if party standings change in the life of a parliament and produce a tie.

New Brunswick

In December 1994, Speaker Dysart had to issue a ruling in New Brunswick after the Confederation of Regions Party had lost members and tied with the Conservative Party at 6 members each mid-way through the life of the parliament, similar to the circumstances under which Speaker Parent made his ruling in the 35th Parliament.

“Speaker Dysart noted that an organized group of MPs or MLAs (i.e. a party) will receive the nod over a loose collection of independents of the same number. Party status counts because it implies an ability to fulfill the expected role of the official opposition.”

Like Parent, Dysart ruled in favour of the Confederation of Regions Party because of its incumbency. In addition, Dysart adopted the reasoning that should have compelled Speaker Amerongen to rule in favour of the New Democrats in 1983: that a political party should take precedence over a collection of unorganized independents.


The Speaker of the Yukon Legislative Assembly had to make a similar ruling on December 9, 1996, but unlike the Canadian and New Brunswick cases, he had to issue his decision directly when the new legislature first sat rather than mid-way through its lifespan.

The Yukon Party and the Liberal Party each won 3 seats in the general election, and the Speaker could not, in this case, rely on incumbency within the life of this same legislature. However, the Speaker did base his rationale on a principle related to incumbency:

“The Chair, then, has determined to make a decision in this matter which reflects the spirit and intent of the House of Commons’ reliance on incumbency as a deciding factor. It is the Chair’s judgment that that spirit and intent is best satisfied by selecting an opposition party caucus which formed the government prior to an election to be the Official Opposition over an opposition party caucus that was a third party in the House prior to the election. That means that the Yukon Party Caucus will be the Official Opposition and that the Member for Porter Creek North will be the Leader of the Official Opposition.”

Conclusion: Alberta in 2014

The ruling from Yukon has no bearing on the current situation in Alberta, because the current iteration of the Alberta Liberals has never formed Government in Alberta, and the previous iteration of the Liberal Party has not formed Government in Alberta since 1921. In other words, the Speaker of the Legislative Assembly of Alberta could not rule on which party shall be recognized as the Official Opposition based on which party had last formed government because neither the Alberta Liberals nor the Wildrose Party have ever formed government in Alberta. In addition, this tie in number of seats between two opposition parties came about during the life of the parliament and not at its beginning.

The previous Speaker’s ruling from Alberta provides a poor precedent for this case as well because it springs from a faulty rationale that the percentage of the popular vote that a party earned should somehow determine whether or not the assembly would recognize it as the Official Opposition if it were tied in standing with another opposition party. Under Speaker Amerongen’s logic from 1983, the Wildrose Party would retain its status as Official Opposition simply because it won a higher percentage of the popular vote in the last general provincial election in 2012.

Under Speaker Parent’s and Speaker Dysart’s rationale, the Wildrose Party would retain its status as the Official Opposition based purely on incumbency and inertia.

But in this instance, Speaker Gene Zwozdesky faces a political situation unprecedented in Canadian history – perhaps even in the history of all the Commonwealth Realms. The Wildrose Party and the Alberta Liberals find themselves tied in number of seats not because of some fluke of by-election victories or deaths of sitting MLAs, but because the Leader of the Opposition, along with several of her colleagues, decided to abdicate her duty, cross the floor, and join the government caucus and cabinet. In a situation without precedent, we should base our decisions not on the stare decisis doctrine but on basic constitutional principles. The Official Opposition is supposed to act as an alternative government and hold the government to account. Smith decided that she could no longer perform the first duty, but she could – and should – have continued to uphold the second. If she could not have upheld the second, then she should simply have resigned as Leader of the Wildrose Party and perhaps even as an MLA. All governments require a legitimate and able opposition to keep them honest and force them to provide an account of their decisions to parliament and to the people. Alberta in particular needs an effective political opposition because this jurisdiction functions as a one-party state – and as in all one-party states, the Government Party and the State become one and the same, and the potential for boundless corruption springs forth.

The leader of the Alberta Liberals, Raj Sherman, has petitioned the Speaker of the Legislative Assembly of Alberta to recognize his party as the Official Opposition now that the Alberta Liberals have the same number of MLAs of the remnant of the Wildrose Party.

Given that Smith has implored the remnant of Wildrose to cross the floor and join the Alberta PCs and the Prentice Government, it is possible that the Alberta Liberals will soon form the largest bloc in opposition anyway. But even if the party standings remain stable, the Alberta Liberals merit the duty more than the Wildrose remnant.

Frankly, Sherman deserves this distinction, and the Speaker should rule in his favour. Danielle Smith has all but destroyed the Wildrose Party as a credible alternative government and has stated in no uncertain terms that she no longer wanted to hold the Government to account – instead, she wanted to join the Prentice Government and will soon collect her coveted seat in his cabinet.

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Posted in Loyal Opposition | 7 Comments

The Delegitimation of the Crown of Canada: Paul Heinbecker’s Argument Against Constitutional Monarchy

The Crown Hurts Diplomacy?

Paul Heinbecker, a former Canadian diplomat and now the Director of Global Relations at Wilfrid Laurier University, contributed a column to the Globe and Mail entitled “The Monarchy Hurts Canada’s Standing in the World. It’s Time To Let It Go” on July 1st – a deliberately auspicious day to advocate the destruction of Canada’s constitutional system and British inheritance. A longer version of Heinbecker’s article, under the strange title “Rethinking Canada’s Place in the Monarchy,” also appears in a new online publication called “”[1]

Heinbecker argues that Canada should become a republic in order to improve its standing in the world. He declares from the outset of the longer piece:

Fealty to the British monarchy is an anachronism and a drag on Canadian foreign policy that confuses many and delivers little.

This phrasing, as well as his derisive references to “‘our’ throne,” suggests that Heinbecker believes that the one and indivisible Imperial Crown of the 19th and early 20th centuries still exists, when in reality it has long since multiplied out into a personal union of several Crowns vested in one natural person. The phrasing “Canada’s Place in the Monarchy” also implies that the Crown of Canada is a foreign object from which Canada can detach itself. In order to prove this argument, Heinbecker would have to demonstrate that the United Kingdom has determined Canadian foreign policy throughout the 20th century and that Canada does not possess a separate international legal personality. However, Heinbecker’s own examples in fact prove the opposite position, that the Crown of Canada is a separate legal person from the Crown of the United Kingdom (as part of a personal union) and that Canada therefore does both possess and exercise its separate international legal personality. In the next paragraph, he exalts the Government of Canada’s achievements in foreign affairs, in many of which he played a role. He described his experience in the Foreign Service in positive terms.

Canada was regarded as the most successful country on the planet in integrating foreigners into our society and making diversity a strength, all the while safeguarding the rule of law, protecting the interests of our minorities, albeit with some regrettable lapses with respect to aboriginal Canadians, and promoting progress abroad. As Prime Minister Mulroney’s foreign policy adviser, I saw the high regard with which Canada was held overseas in fighting Apartheid in the Eighties and in promoting German unification in the Nineties, often in conflict with London. As Canadian Ambassador to the UN, I saw the respect Canada enjoyed when Prime Minister Chrétien withstood British (and American) pressure to join in the catastrophic 2003 Iraq war.

Heinbecker thereby undermines the main thrust of his argument. Despite the “anachronism” that “fealty to the British monarch” represents, and despite Canada’s status as a constitutional monarchy, the Government of Canada achieved great accomplishments in its own right as an independent, sovereign country possessing its own international legal personality. In fact, as Heinbecker notes, the Mulroney government and the Thatcher government took different positions on the Apartheid regime in South Africa in the 1980s and opposite positions on German Reunification in 1990 – both despite the fact that the British and Canadian Crowns form part of a personal union vested in Queen Elizabeth II. In other words, the Queen of the United Kingdom (at least initially) opposed German reunification, while the Queen of Canada supported it. In 2002 and 2003, the Blair government supported the Bush administration and joined the “Coalition of the Willing” that invaded Iraq in order to topple Saddam Hussein and spread democracy à la Bonaparte. The Chretien government (wisely, in my view as well) decided that Canada would not participate in this foolish war. As in the previous examples, the contrary positions of the British and Canadian governments reveal the nature of the Personal Union: the Queen of the United Kingdom was at war with Iraq, while the Queen of Canada was not. Heinbecker’s own examples clearly demonstrate that Canada does not pay “fealty to the British monarchy.”

The Crown of Canada and British Colonialism

Heinbecker also argues:

In international relations, fealty to the British monarch delivers us precisely zero benefit in the conduct of Canadian foreign policy and at the same time associates us with a checkered British colonial legacy.

If that case, how on earth did Canada realized those achievements from 1984 to 2003 that he mentioned in the earlier paragraph? Heinbecker cites the legacy of British colonialism and decolonization in Africa, India, and the effects of the Skyes-Picot Treaty of 1916 on the Middle East as examples of British Imperial baggage that somehow hinders the conduct of Canadian diplomacy. But Heinbecker offers no evidence that this legacy has affected Canada’s foreign policy in Africa or India.

Invoking the Sykes-Picot Treaty is particularly bizarre, given that both the British and the French used it to carve out their respective spheres of influence and administration of the crumbling Ottoman Empire. How has Sykes-Picot affected the conduct of Canada’s foreign policy in the Middle East? Perhaps one example comes from the Suez Crisis and Canada’s peace-keeping force. Egyptian President Nasser initially objected to Canada’s participation in the United Nations Emergency Force (UNEF) because “Her Majesty’s British troops were replaced by Her Majesty’s Canadian troops.”[2] Nasser also apparently objected to the Royal Canadian Navy’s White Ensign, which was identical to that of the Royal Navy at the time, and to the Red Ensign, which contains the Union Flag in its canton.[3] (As Prime Minister, Pearson did away with the Red Ensign and replaced it with the Maple Leaf). Despite Nasser’s initial objections, Pearson’s efforts paid off and Canada became known for her peacekeeping efforts throughout the Cold War. And even if this case falls under Heinbecker’s category, focusing on the Crown of Canada misses the larger point that Prime Minister St. Laurent opposed Prime Minister Eden’s disastrous invasion of Egypt under the guise of protecting the Suez Canal; as with those earlier examples, the Queen of the United Kingdom and the Queen of Canada took different positions because each country has a separate international legal personality.

Perhaps Heinbecker is correct. But in order to prove this claim, he would have to demonstrate that Canada’s status as a constitutional monarchy and the personal union of the Commonwealth Realms have someone prevented the Government of Canada from pursuing its desired diplomatic objectives. If anything, Heinbecker’s own examples on Canada’s diplomatic success between 1984 and 2003 point to precisely the opposite conclusion! And even if Heinbecker is correct, a few diplomatic kerfuffles do not make a good argument on why the Dominion of Canada should reject its inheritance and become the First Federal Republic of Canada. Even if Canada were a republic now or had been a republic in the mid-20th century, we will never be able to erase our history and the fact that Canada was once a British Crown colony.

The Queen’s Representation of Canada Abroad

Heinbecker recounts an event that occurred during his time as Canada’s Ambassador to Germany. The Queen of the United Kingdom visited Bonn (the capital of the former West Germany) in order to promote British businesses in Germany. Heinbecker thought that the Queen should also act in her Canadian capacity and promote Canadian businesses at the same diplomatic event, so he asked the aide-de-camp of the British diplomat accompanying the Queen of the United Kingdom to broach the subject with his superior. “It was evident from his startled reaction that such an idea had never occurred to him,” Heinbecker writes. Derek Burney, also a former diplomat and anti-monarchist closely associated with the Mulroney government, told a similar anecdote in 2011 about a similar conversation with a British diplomat that occurred in the 1980s.

Heads of State and Government and their Spouses at the opening of the St. Lawrence Seaway

Heads of State and Government and their Spouses at the opening of the St. Lawrence Seaway

First, the Queen of Canada only represents Canada abroad on and in accordance with the advice of her Canadian government because responsible government means that ministers of the Crown take responsibility for all acts of the Crown. For instance, the Queen of Canada represented Canada in France in 2007 when Her Majesty rededicated the Canadian war memorial at Vimy. Her uncle, King Edward VIII, also acted as the King of Canada when he dedicated our memorial in Vimy at its initial opening in 1936. The Queen of Canada has also represented Canada in the United States. For instance, the Queen of Canada and President Eisenhower, each representing their respective countries, jointly opened the St. Lawrence Seaway at an official State ceremony in 1959.

Second, the Queen only represents one Commonwealth Realm of which she is the sovereign or head of state at any one time on official trips abroad, apart from two addresses to the United Nations General Assembly in 1957 and in 2010. In 2010, the Queen said, “I address you today as Queen of sixteen United Nations Member States and as Head of the Commonwealth of 54 countries,” and the flags of all 16 Commonwealth Realms fly upon the Queen’s arrival.[4]

This procedure of representing only one Realm on a diplomatic visit during the conduct of official business avoids unnecessary confusion, but it does not derogate from the personal union of the Crowns. The personal union of the Crowns of the Commonwealth Realms always exists because Elizabeth II always personifies all the Crowns, but the personal union also imposes a physical limitation that the Queen of the United Kingdom and the Queen of Canada cannot speak with one voice. For practical reasons, the Queen does not act in more than one capacity at once. Her Majesty’s addresses to the United Nations General Assembly are the exception because of the nature of the UNGA itself, where representatives of all 16 Commonwealth Realms are gathered, and because the speeches did not contain anything controversial.

Heinbecker presents an absurd notion that violates both common decency and diplomatic protocol: that he, as a Canadian diplomat, could, with no preparation or briefing, ask a British aide-de-camp to ask a British ambassador who in turn would ask that the Queen of the United Kingdom to represent Canada abroad with no advice from the Government of Canada. And frankly, Heinbecker either knows that this is absurd, or he is ignorant of his own trade. The British aide-de-camp probably looked shocked and did not appreciate Heinbecker’s suggestion, because Heinbecker was totally out of order. Not even the British ambassador to Germany– let alone the British ambassador’s aide-de-camp – would possess the authority to advise the Queen in her Canadian capacity on any matter whatsoever. Only Canadian Ministers of the Crown could do so. Ironically, if the Queen had acted in her Canadian capacity on the advice of British officials, Heinbecker would have succeeded only in harkening back to the 19th century, when Canada was still a colony of the British Imperial Crown and not a sovereign state bearing its own separate legal personality in its own right as part of the personal union of the Commonwealth Realms. In fact, the British Imperial Crown multiplied outward into a personal union of several Crowns in the 1930s precisely because the Sovereign started to act upon the advice of separate sets of responsible ministers with respect to those separate Dominions. [5]

Heinbecker probably intended to use this anecdote as some kind of ironic critique of the Crown of Canada, as in “What is the point in being a monarchy if the Queen doesn’t promote Canadian businesses abroad and only focuses on the United Kingdom?” In reality, Heinbecker’s anecdote relies on the fallacy of appeal to authority (that his role as a diplomat in and of itself means that the reader must take his account as unassailable), a complete rejection of diplomatic protocol,  and on an objectively false interpretation of the role of the Queen of Canada under Responsible Government.

The Politicians’ Republic

Heinbecker defines the Crown as “a legal convenience and historical artefact in Canada, even a convenient fiction” as well as “an anachronism” to which Canada is “manacled” — as if the Crown were a ball and chain and symbol of colonial servitude. He also refers to Canada’s “link to the monarchy” – again, as if the one and indivisible Imperial Crown still existed and as if the Crown of Canada did not form an integral part of the constitution. A “link” could be severed with no complications. Heinbecker thereby dismisses the Crown of Canada’s centrality within the Constitution of Canada, particularly in sections 9 and 17 of the Constitution Act, 1867, which acknowledge that the executive authority of Canada is vested in the Crown, and that the Parliament of Canada, or the Crown-in-Parliament, consists of the Crown, Senate, and Commons. The Crown is thus integral to both the executive and the legislature. A vestigial anachronism cannot form the basis of the daily operation of the government and parliament. Despite describing the Crown as an anachronism, Heinbecker does acknowledge the fact that only an amendment under the unanimity formula of section 41(a) of the Constitution Act, 1982 could bring forth his Elitist Politician’s Republic in which the Governor General would subsume the Queen’s authority and functions and be elected by the 1050 elected representations in the House of Commons and provincial assemblies but only “from among the members of the Order of Canada.” (It is unclear whether the eligible pool of candidates for Governor General would consist only of the “Members” of the Order of Canada, or whether this would also include the two higher categories, Officers and Companions.) The Globe and Mail supported a similar scheme in the late 1990s. The struggle for righteous liberation from this tyrannical monarchy would give way to a new oligarchy wherein only elected MPs, MPPs, MLA, MNAs, and MHAs would possess the right to vote for Canada’s new head of state, and wherein only recipients of the Order of Canada would be eligible for election. This Elitist’s Republic of Canada would probably not resonate even within the republican movement!

Canada’s ambassador to Germany wants Canada to become like Germany: he probably derived this method of selection from Germany’s parliamentary republic. The German president serves a term of five years, once renewable, and he is elected by a “Federal Convention” consisting of the elected members of the lower house of the federal parliament and “an equal number of members elected by” the parliaments of the 16 states. Currently, the Bundestag (lower house of the federal parliament) consists of 631 elected MPs, which means that the next President of Germany would be elected by around 1260 persons. Heinbecker probably wants to preserve or increase the Governor General’s independence by insulating him from the popular control and depriving him of a popular mandate. (In contrast, Ireland and Israel provide a different model of parliamentary republic in which the president serves as head of state but is directly elected by voters).

On another note, what would become of the provincial Lieutenant Governors? Republicans tend to fixate on the Governor General and the head-of-state function at the federal level and to ignore the comparable function at the provincial level. Heinbecker does not indicate whether the Governor General would continue to appoint the Lieutenant Governors on the Prime Minister’s advice or whether they would be subject to a new method of appointment.    

Conclusion: The Paradoxical Canadian Crown

Governments in Canada Have Chosen to Marginalize the Queen

Despite his argument’s logical inconsistencies, Heinbecker is right that the Queen of Canada’s role has been reduced in some ways. But the Queen of Canada has not been marginalized by the turning wheel of history or through the inevitable republican teleology; instead, successive Canadian prime ministers and ministries have chosen to marginalize the Queen in order to “Canadianize” the Crown and emphasize the Governor General.

Heinbecker argues that Canada needs a government willing to lay the groundwork for a republic. This pre-republican government would “treat the Governor General as the de facto Head of State in all ways that the constitution does not actually prohibit” and ensure that the Governor General “performs the ceremonial roles of Head of State,” including the exclusive right to represent Canada abroad and to “promote non-partisan Canadian interests” abroad. In fact, the Governor General already represents Canada both at home and abroad, and the Queen of Canada exercises these functions infrequently.

In practice and in law, most of what Heinbecker proposes already exists. By 2014, the Governor General of Canada already exercises virtually all the legal-constitutional functions of the Queen of Canada within and without Canada. The Queen of Canada now rarely represents Canada abroad because the Government of Canada rarely asks her to do so. Chris McCreery has shown how the Government of Canada gradually delegated most of the roles of the Queen of Canada to the Governor General of Canada from 1947 to 2005.[5] Through the Letters Patent Constituting the Office of the Governor General, 1947, the King of Canada delegated (not “transferred”) the “exercise [of] all powers and authorities lawfully belonging to Us in respect of Canada.” The Queen of Canada remains the legal-constitutional source of all these powers and authorities; if the Office of the Queen ceased to exist, then all the Governor General’s powers and authorities would vanish with it. In practice, the Government of Canada did not ask George VI, and subsequently, Elizabeth II, to delegate the exercise of all the Crown’s powers and authorities until well after 1947. For instance, the Queen of Canada granted all letters of credence to Canadian diplomats until 1975; from 1975 to 2005, the Governor General did so explicitly on behalf of and in the name of the Queen. And from 2005 onward, the Governor General now issues them without direct reference to the Queen of Canada, even though she still personifies this constitutional authority.[6]

Queen Elizabeth II reads the Trudeau government's speech from the throne in 1977

Queen Elizabeth II reads the Trudeau government’s speech from the throne in 1977

A more subtle example includes the Queen of Canada’s role as part of the Crown-in-Parliament (Queen, Senate, and Commons). The Queen of Canada read the Speech from the Throne in the Senate in 1957; Prime Minister Trudeau invited her to do so again in 1977 as part of her Silver Jubilee. But in 2002 when Prime Minister Chretien almost certainly could have invited the Queen of Canada to read the Speech from the Throne as part of her Golden Jubilee Royal Tour, from 4 October to 15 October 2002, he instead allowed Governor General Clarkson to read it one week before on 30 September 2002.

The Queen’s website also unfortunately lends some credibility to Heinbecker’s argument that Elizabeth II is perceived as exclusively British in a cultural sense. Elizabeth II dedicated the Canadian war memorial at Vimy as Queen of Canada, and not as Queen of the United Kingdom, in 2007, but the text of the speech appears under the “Official Website of the British Monarchy.” The website ought to reflect the personal union of the 16 Crowns of the Commonwealth Realms more effectively in this respect. The website does contain sub-sections for each Realm, but the banner “The Official Website of the British Monarchy” still looms large over the sub-heading “Queen and Canada,” which really ought to say “Queen of Canada.” The Canadian section includes sub-sections on “The Queen’s Role in Canada” (which would more accurately be “the Role of the Queen of Canada”), Royal Tours, a photo gallery, and “Symbols and Ceremonies.” The Queen of Canada’s website also ought to include a sub-section dealing with speeches that she has delivered in that capacity so that the text of Her Majesty’s re-dedication of the Vimy Memorial appears there. The Government of Canada now maintains a helpful website called “The Canadian Crown”; the Government could improve upon it by including the Queen of Canada’s speeches therein.

While the Crown of Canada enjoys a secure legal-constitutional entrenchment under section 41(a) of the Constitution Act, 1982, the Crown of Canada as a distinct Canadian legal person has been delegitimated, more or less successfully, in the media and popular culture through a process well-known to scholars of nationalism and nationalist political discourse:”othering.” The Queen has become the foreign “other” so that the Crown of Canada can transform itself from the integral source of legal-constitutional authority to a foreign nuisance or distraction — and so that the good Canadian now assumes the duty to destroy this Other. Heinbecker argues that the government should “take down portraits of the royal family,” by which Heinbecker presumably means that the Government should take down all the portraits of the Queen of Canada from Canadian embassies as well as the portrait of the Queen from the Sovereign’s Wall in the Lester B. Pearson Building, because our embassies don’t display portraits of the whole Royal Family. Removing the Queen of Canada’s portraits from Canadian embassies and consulates would not alter the Queen of Canada’s legal-constitutional position as the sovereign (or head of state, if you prefer); however, this tactic of republicanism-by-stealth – the incremental and deliberate removing the outward symbols of the Crown that reflect Canada’s constitutional monarchy – is an effective method of delegitimating the Crown in the cultural sense. Elizabeth II is reputed to have said, “I have to be seen to be believed.” Each step in republicanism-by-stealth denies the Crown its rightful place in public view and ensures that Canadians no longer think of Canada as the constitutional monarchy that it is. A concerted strategy of republicanism-by-stealth and removing the Crown from everyday public view would make it easier for Canadians to imagine Canada as a republic so that they could perhaps one day will the First Federal Republic of Canada into existence.

As Chris Champion showed in The Strange Demise of British Canada, these anti-monarchist neo-nationalists mean to create Canada anew. Canadian media often refer to the “British monarchy,” which implies that the one and indivisible Imperial Crown still exists and that therefore the Crown is inherently a foreign “other.” The phrase “cutting ties to the monarchy” often appears, and republicans like Duff Conacher of Your Canada, Your Constitution and Paul Heinbecker emphasize it; this wording implies that the Crown is nothing more than a colonial vestige that must, according to the republican teleology, inevitably consign itself the dustbin of history after collapsing under the weight of its legal fiction. While the current Constitution of Canada entrenches the Crown under section 41(a) in the legal-constitutional sense, the Crown of Canada will not necessarily sustain itself automatically in this cultural sense. Even maintaining the status quo requires active effort. In this case, those who favour constitutional monarchy must point out that the Crown of Canada forms an integral part of Canada’s legal-constitutional framework, and that we are merely drawing attention to and reinforcing the current fact and not “retrogressing” backward to some “colonial” subservience. It is the republicans who are the radicals, and the onus rests with them on why we should abolish the Crown of Canada.

Similar Posts:

[1] states that it will focus on, among other things, questions relating to “the role and method of selection of Canada’s Head of State” – which at first instance sounds awfully like a republican argument couched in deliberately ambiguous language. Upon further analysis, the website confirmed my suspicion: under “Publisher Info,” indicates that it “is published by Your Canada, Your Constitution” (YCYC). In Newspeak, describes YCYC as “a research and education foundation dedicated to developing knowledge of Canada’s constitution.” In plain English, YCYC advocates that Canada become a republic, and therefore destroy the Crown by replacing its executive, legislative, and judicial authority with a new fully codified constitution. (I have documented YCYC’s mendacity and push-polling in previous entries).
[2] Sean M. Maloney, Canada and UN Peacekeeping: Cold War By Other Means, 1945-1970. (St. Catherines, Ontario: Vanwell Publishing Limited, 2002), 67.
[3] Ibid., 73.
[4] Richard Berthelsen, correspondence with author, 24 July 2014.
[5] Anne Twomey, “Responsible Government and Divisibility of the Crown,” Public Law no. 4 (2008): 742-767.
[6] Chris McCreery, “Myth and Misunderstanding: The Origins and Meaning of the Letters Patent Constituting the Office of Governor General, 1947,” chapter 3 in The Evolving Canadian Crown, edited by Jennifer Smith and D. Michael Jackson, 31-56 (Kingston-Montreal: Queen’s-McGill University Press, 2012).
[7] Ibid., 48-51.

Posted in Crown (Powers and Office), Monarchism v Republicanism, The Personal Union, YCYC Watch | 9 Comments

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]


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) | 6 Comments