Introduction

I spoke for a few minutes at the conference — more on that later!

I am pleased to have been given the opportunity to present at the launch of a new charity called “Your Canada, Your Constitution” here in Ottawa on 4 June 2012. I consider myself a good writer but a poor public speaker, so these events allow me to practise the latter skill. I disagreed, however, with the speeches that Carl Turkstra and Andrew Cohen delivered, and have enumerated my reasons why below. Based on their speeches, Your Canada, Your Constitution has taken on an untenable dual mandate: on the one hand, its supporters and donors openly promote republicanism; on the other hand, they also express a desire to educate Canadians about the constitution of Canada. These two goals present an inherent contradiction and reflect either the deep ambivalence or outright hostility toward the Crown. One would offer a description of the history and practice of the constitution of Canada (particularly the conventional constitution), while the other would ultimately lead to the promulgation of an entirely new constitution for the First Federal Republic of Canada.

I therefore characterize myself as a “Contrarian for the Crown” because of the supreme irony that being a constitutional conservative, a constitutional monarchist, and reaffirming the traditions of Responsible Government have now become the surest path toward contrarianism in Canada – particular in the presence of public intellectuals and in the academy.

The Ambivalence and Ambiguity of Your Canada, Your Constitution

Your Canada, Your Constitution (YCYC) incorporated this ambivalence into its first press release.[1] YCYC describes itself first and foremost as “an educational charity” that seeks to “involve Canadians in their democracy.” The press release then defines the core mandate of the organization:

YCYC’s activities will be aimed especially at increasing public knowledge, and generating public discussion and full consideration of:

• Canada’s history as a constitutional monarchy, past proposals for change, and possible future as a fully independent democracy based on popular sovereignty;
• the role of the Governor General and provincial lieutenant governors, and the relationship between them and the Prime Minister, provincial premiers and cabinets and legislatures and politicians; and
• how people in other countries have addressed questions and issues concerning their constitutions and fundamental structures and operations of their governments.[2]

This passage the true object of “educating and involving Canadians in their democracy”: the creation of the First Federal Republic of Canada, which the press released couches in cryptic language. It presents “becoming a republic” as “consideration of a possible future as a fully independent democracy based on popular sovereignty.” The press release also shows an inherent contradiction because if the goal listed in the first bullet point were achieved, then the goal contained in the second bullet point would become moot because the abolition of the Crown and promulgation of a new republican constitution would necessarily eliminate the offices of Governor General and Lieutenant Governors, and thereby fundamentally change the relationship between them and the Prime Minister and Cabinet.

YCYC has at least correctly implied that the Crown currently forms the basis of legal-constitutional power and authority under the constitution. However, Canada is already an independent and sovereign State in which sovereignty rests in the Crown-in-Parliament. Ministers of the Crown in Cabinet enforce and assert that sovereignty.  But this ambiguous notion of “fully independent democracy” could mean anything from a parliamentary republic, to a semi-presidential republic, to a presidential republic, to the whole-scaled institutionalization of direct democracy mechanisms like referendum, initiative, and recall. The meaning of the third point depends upon the meaning of “fully independent democracy.” It could also refer to something as innocuous and feasible as the officialization of the conventional constitution, or to something as radical as the promulgation of a new republican constitution.

The Ambivalence and Contradiction of Intellectuals Toward the Crown

Carl Turkstra and Andrew Cohen compensated for the ambiguity of the press release in their presentations, and indeed contextualized it quite effectively. Where Turkstra demonstrated overt hostility to the Crown, Cohen embodied this bizarre ambivalence toward the Crown, which consisted of contradiction and his adherence to this facile deterministic view of history known as the “liberal progress narrative.”[3]

Turkstra opened the day’s discussions and presentations with an overt anti-monarchist pitch. First, he decried the British North America Act, 1867 as the tool of a “foreign government” and criticized that it makes “no mention of the Canadian people.” Alluding to the preamble of the American Constitution of 1787, he thundered, “‘We the people’ are not sovereign!” Dicey described the people as “the political sovereign” by convention, but Turkstra is correct: legal-constitutional sovereignty is vested in the Crown-in-Parliament. While he laments this fact, I wholeheartedly endorse the arrangement, because the sovereignty of the Crown-in-Parliament forms the basis of the confidence convention and of Responsible Government. He then uncritically adopted the Aucoin School’s argument and asserted, “Prime Ministers regularly violate the rules with impunity.” He offered no evidence to support his claim and presented it as an indisputable fact instead of as an arguable proposition within the Canadian scholarship on Crown prerogative. He also fell into the trap that I labelled “Myth 3 on the Patriation of the Constitution” in a previous entry by implying that because Quebec did not “sign onto” the Constitution Act, 1982, the task of amending it somehow becomes easier. He also did not elaborate on this assertion. Turkstra concluded his speech by advocating for a “truly independent Canada, where the people are sovereign” – though he deliberately avoided the obvious meaning of popular sovereignty as “republicanism”. Indeed, he alluded to republicanism throughout his remarks without ever mentioning the word. Did he really think that no one would notice?

Professor Andrew Cohen of Carleton University, my alma mater, delivered the keynote address and set the tone for “Your Canada, Your Constitution.” The aforementioned press release lauds him with great praise and identifies him as a member of the “YCYC Strategic Advisory Committee.” Cohen demonstrated, probably unintentionally, what I consider several inherent contradictions throughout this address. In grand Pearsonian rhetoric, Cohen argued that we should take up the task of “unifying the country by renewing its constitution and democracy.” This opening led to the contradiction between denouncing constructivism and supporting gradual change on the one hand, and the fundamental error of incorporating republicanism into the liberal progress narrative on the other. Cohen acknowledged, correctly, that Canada inherited its constitutional architecture from the United Kingdom and that our political system eschews constructivism because no one ever “invented” or “designed” it per se. He proclaimed: “We’re not France with its five Republics or Germany with its three Reichs. We don’t go for upheavals.” He affirmed that “through evolution rather than revolution”, Canada’s “radically moderate” political system has produced “measured, judicious change.” After correctly summarizing and paying homage to our history and supreme inheritance of British liberty and constitutionalism, Cohen then laid out a radical agenda of sweeping, constructivist constitutional reform that would systematically destroy the constitution of Canada. However, Cohen couched this radicalism in the liberal progress narrative and presented his plan as a series of “modest proposals” and “the beginning of renewing Canada.”

Cohen endorsed mixed-member proportional, “empowering Parliament” and individual Members, a federal securities regulator (which the Supreme Court has already declared ultra vires), and federal standards in education (which the Supreme Court would almost certainly reject as ultra vires, unless they were non-binding guidelines). He then denounced decentralized federalism and proclaimed that the “new natural rights” of the 21^st century should center on “right to access public land.” Finally, without ever mentioning “republic” or any of its linguistic variants, he presented his ambiguous plan to “rethink the monarchy” – which would in fact amount to the abolition of the Crown of Canada altogether. He argued that upon the death of Queen Elizabeth II, we should “set in motion a process to make the Governor General our head of state.” Cohen appears to be ignorant of the principle of automatic succession: unless Canada abolishes the Crown, the Prince of Wales will automatically become the next King of Canada. The Sovereign never dies; that ancient phrase  will next apply as: “The Queen is dead. Long live the King!” Declarations of loyalty from the Privy Council Office and the Parliament of Canada do not implement succession, but merely recognize and affirm it.  Worse still, Cohen presented the idea of the Federal Republic of Canada as the natural and inevitable outcome of Canada’s historical evolution. He did not acknowledge that the creation of the Federal Republic of Canada would probably require the promulgation of a new constitution in order to eliminate systematically every part of the Crown from our political system, not merely an amendment to Section 41 (a) of the Constitution Act, 1982 in order to eliminate the offices of Queen, Governor General, and Lieutenant Governors. By couching his crypto-republicanism in the facile determinism of the liberal progress narrative, Cohen also fails to appreciate that the abolition of the Crown of Canada is in no way “inevitable” or “natural” – and it certainly would not amount to another gradual evolution in the Canadian style. If the abolition of the Crown of Canada were somehow “inevitable” and a “natural” by-product of Canada’s institutional evolution, then human agency would not enter into the equation. In other words, we could do nothing, and the Crown would abolish itself through path dependency alone. This idea is of course absurd and does not depend upon gradual institutional change;  instead, it draws inspiration from radicalism and constructivism and would destroy one constitutional framework and replace it with another. Christopher Moore and Michael Bliss have made this same mistake in their arguments for the First Federal Republic of Canada.

If these “modest proposals” would constitute merely the “the beginning of the renewing Canada,” I can only speculate what Cohen has in mind for the end state of Canada’s renewal.

Conclusion

In “The Lion and the Unicorn: Socialism and the English Genius”, George Orwell made a prescient observation on English intellectuals in the 1940s. Though a radical and democratic socialist himself, he supported constitutional monarchy, abhorred Soviet communism, and criticized the intellectuals’ rejection of English particularism. The general principles apply equally well to the attitudes of some Canadian intellectuals on constitutional monarchy in the 2010s.

England is perhaps the only great country whose intellectuals are ashamed of their own nationality. In left-wing circles it is always felt that there is something slightly disgraceful in being an Englishman and that it is a duty to snigger at every English institution […]. It is a strange fact, but it is unquestionably true that almost any English intellectual would feel more ashamed of standing to attention during ‘God save the King’ than of stealing from a poor box.[4]

In this case, some Canadian intellectuals promote popular sovereignty and absolute democracy, but reject or simply do not understand the centrality of the Crown in the constitution of Canada. As a result, they seek to “educate” Canadians into marginalizing the Crown. They deride constitutional monarchists as colonial vestiages and provincial fools. They even subtly adopt the Marxist dialectic of false consciousness through the attitude, “if only Canadians understood their own interests, they would rise up against the monarchy and cry for a republic!” The vanguard of the proletariat must lead the masses into their revolution…

These public intellectuals demonstrate either ambivalence or outright hostility toward the Crown because they fail to recognize that the Crown forms the basis of all power and authority within the constitution of Canada. They attempt to segregate “the Crown” from the rest of the political system and limit it to the Governor General or the Lieutenant Governors alone, and then further isolate the Vice-Regals from the State and Parliament by confining them to their “reserve powers.” In reality, the federal and provincial Cabinets all consist of “Ministers of the Crown”, and the entire federal and provincial civil services and the Canadian Armed Forces fall under the Crown. In other words, the federal and provincial Prime Ministers and Cabinets form a part of the Crown as integral to government in Canada as the part that the Governor General and Lieutenant Governors represent. Contrary to popular belief, civil servants and the armed forces serve the Crown, and they “attend to the public good” via the Crown, rather than “serving” the public directly.[5] Broadly, this first category refers to “the State.” However, the Crown extends beyond the State and into the federal and provincial parliaments. When the constitutional reformers say “Parliament”, they mean either the lower and upper chambers collectively, or sometimes, even more erroneously, the House of Commons alone. However, “Parliament” is in fact shorthand for the tripartite “Crown-in-Parliament,” which consists of the House of Commons, the Senate, and the Queen (represented by the Governor General). The provincial legislatures (all of which are now unicameral) consist of the Legislative Assembly and the Lieutenant-Governor. Finally, the Governor General and Lieutenant Governors extend into civil society through the conferral of honours that recognize Canadian excellence and achievement.[6] The First Federal Republic of Canada would either abolish altogether or substantively alter all these constitutional arrangements.

As a Contrarian for the Crown and supporter of the principles of Responsible Government, Crown prerogative, and loyal opposition, I devote my scholarship to combating constitutional sophistry in all its forms.

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