Introduction: The Mendacity of Your Canada, Your Constitution

Your Canada, Your Constitution (YCYC) has published three other media releases since its formal launch on 4 June 2012; they all demonstrate beyond reasonable doubt that this organization actively promotes constitutional sophistry and attempts to conceal its political activism behind a veneer of scholarly respectability. It portrays itself as an “educational charity” (according to the Canada Revenue Agency’s database) but acts more like a political action committee. Call me old-fashioned, but I always thought that education and research entail the pursuit of truth – following the logos – which in turn require description and analysis of phenomena as they exist. Instead, YCYC presents a poorly articulated normative case on what its organizers and donors think that the Constitution of Canada ought to be. They even lack the decency to proclaim their anti-monarchism openly and concisely; they use code phrase like “popular sovereignty” and “rethinking monarchy” in order to promote the abolition of the Crown of Canada and the creation of the Federal Republic of Canada. I of course disagree with YCYC’s republican message; more importantly, I object to YCYC’s method of couching their republican arguments in the language of legitimate descriptions of the monarchical constitution.

Even the name of the organization – “Your Canada, Your Constitution” – is steeped in the identity politics of “wilful self-righteousness” and Romanticist collective and individual self-assertion.[1] The organization thus provides a forum in which like-minded individuals gather in order to affirm and reflect each other’s views. The name subtly evokes popular sovereignty and implies that the righteous Canadian people must seize “their” constitution from that evil, despotic Crown in order to thoroughly “democratize” it and cleanse it of all kingly pomp. As Carl Turkstra and Andrew Cohen made clear in their speeches on 4 June 2012, and Duff Conacher stated in his letter to the editor of 5 June 2012, YCYC seeks nothing less than a bloodless revolution of “democratization” in order to rid Canada of its symbol of colonial subjugation: the Crown. (Citizens for a Canadian Republic even lists Andrew Cohen as a republican).  They couch that intention in innocuous-sounding language such as, YCYC seeks to “involve Canadians in their democracy.” I demonstrated in “Contrarian for the Crown Infiltrates Your Canada, Your Constitution” and “Abolishing the Crown of Canada: Political Difficulty vs. Constitutional Significance” that Conacher, Cohen, Bliss, Moore, and others base their arguments on abolishing the Crown on a fundamental misunderstanding of the Crown’s centrality in the constitution.

As the following analysis will show, Your Canada, Your Constitution engages in political activism and promotes constitutional sophistry, not constitutional scholarship.

Conacher’s Letter to the Editor

In response to Andrew Coyne’s laudatory column on Her Majesty’s Diamond Jubilee, Duff Conacher wrote a short Letter to the Editor: Constitution’s Rules Not Followed and Unclear, Allow for Abuses of Power by the Prime Minister, Premiers, and their Cabinets. It plays fast and loose with constitutional facts.[2]

Conacher dismisses the Crown of Canada as an anachronism and propagates the incorrect constitutional interpretation of the Crown-as-Ornament. He relegates the Crown to the “historical basis for Canada and the structure of power in its governments.” In constitutional fact, the Crown provides the basis of government’s powers and authorities still.

Conacher then asserted a gross misrepresentation of the content of the Constitution Acts, the conventions of Responsible Government, and the nature of the total constitution:

However, while Canada’s Constitution states that the Queen (via the Governor General and provincial lieutenant governors) has final decision-making power over most key parts of federal and provincial government operations, this power has been essentially symbolic for decades.

Section 9 of the Constitution Act, 1867 states, “The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.” However, this acknowledgement of the source of executive power does notmean that “the Queen has final decision-making power over most key parts of federal and provincial government operations,” as Conacher would have us believe. Even Section 13 of the Constitution Act, 1867 affirms the constitutional relationship between the Cabinet and the Governor General: “The Provisions of this Act referring to the Governor General in Council shall be construed as referring to the Governor General acting by and with the Advice of the Queen’s Privy Council for Canada.” The conventional constitution must then be added to the written constitution.

As I never tire of reminding the constitutional sophists, Responsible Government means that Ministers of the Crown (the Prime Minister and Cabinet) take responsibility for all acts of the Crown (policies, expenditure, decisions) and that they must command the confidence of the Commons in order to govern.[3] Responsible Government arose by convention in the 19^th century in the United Kingdom, and it was exported to British North America in 1848. The preamble of the Constitution Act, 1867 incorporates the constitution conventions of Responsible Government by affirming that Canada’s constitution is “similar in principle to that of the United Kingdom.” Legal scholars have recognized this principle since the 19^th century.

Under Responsible Government, the Sovereign does not act unilaterally and independently, but on the advice of the Prime Minister alone or the Cabinet as a whole and in accordance with that advice, except in extraordinary circumstances where the “reserve powers” may apply. In a strange way, Conacher seems to object to these basic premises of Responsible Government and constitutional monarchy through the assertion that the Queen’s powers “have been essentially symbolic for decades.” He conflates the discretionary authority of the Sovereign or vice-regal to reject the Prime Minister’s advice under exceptional circumstances (the reserve powers) with the total powers of the Crown as a whole, which Ministers of the Crown routinely exercise in the name of the Queen or Governor General.

Conacher then makes another inaccurate series of assertions on the conventional constitution and political enforceability:

Unwritten rules (called “constitutional conventions”) have developed democratically to restrict the power of the royal-appointed governors to say no to an elected Prime Minister or premier when they want to pass a bill, appoint someone, call an election or shut down the legislature, even if they are abusing their powers. These unwritten rules are very unclear (experts don’t even agree what they are) and unenforceable (according to the Supreme Court of Canada).

I object to the overall tone of and word choice in this passage, which clearly derive from the narrative in Democratizing the Constitution: Reforming Responsible Government. Overall, Conacher has again misrepresented the powers and functions of the Governor General and Prime Minister, as well as the constitutional relationship between the two.

First, the Prime Minister and Cabinet do not pass bills – Parliament does. I explained this process in more detail in “No Discretion: On Royal Assent and the Governor General.” In this case, I use “Parliament” as shorthand for the Crown-in-Parliament, which consists of the Queen, the Senate, and the House of Commons. Royal Assent represents the approbation of a bill of all three parts of the Crown-in-Parliament. The preamble of all bills even indicates that the Governor General gives Royal Assent on the advice of the Senate and the House of Commons – certainly not on the advice of the Prime Minister or Cabinet! Cabinet only coordinates the scheduling of the ceremony for Royal Assent in Parliament Assembled. In addition, Royal Assent is automatic; there is simply no question that the Governor General would veto a bill that both houses of parliament passed. No Sovereign has refused Royal Assent since Queen Anne in 1707.

Second, Conacher should use more accurate terminology. By “call an election”, he means that the Prime Minister advises the Governor General to dissolve Parliament, that the Cabinet advises the Governor-in-Council to issue the writs of election, and that the Prime Minister advises the Governor General to issue a pro forma summoning of the next Parliament. (I explained this process in greater depth in “Neither the Queen Nor the Governor General Can Dissolve Parliament Unilaterally“). Conacher has adopted the political activist’s pejorative term for prorogation (which terminates a session of parliament) by referring to this Crown prerogative as “shutting down” Parliament. If he wants to adopt the political activist’s lexicon, “he should be out on the street shouting and hollering with a cardboard sign that reads ‘Stop Harper’ and selling pencils from a cup.”

Third, Conacher propagates the Aucoin School’s interpretation of “abusing power” as if it were undeniable constitutional fact. It most certainly is not, as my scholarship and the Bowden-MacDonald collaboration have demonstrated and will continue to show.

Fourth and finally, Conacher misinterpreted what the Supreme Court of Canada has ruled with respect to the conventional constitution – and as a lawyer, he should know better. In the Patriation Reference and in the Secession Reference, the Supreme Court of Canada acknowledged that constitutional conventions are not legally enforceable because they are instead politically enforceable.[4] Therefore, contrary to Conacher’s claim, the Supreme Court has never determined that conventions “are unenforceable” in general. And if experts cannot agree on constitutional conventions today (which is true), then I cannot fathom why Conacher would believe that they could agree on wording that codifies them into statute!

Conacher concludes his letter to the editor with a rallying cry to write down constitutional conventions. However, half of his statement implies an officialization of constitutional convention in a cabinet handbook, while the other half implies a strict codification of constitutional conventions in statute or in the written constitution itself.

So it seems that steps forward for all concerned would be to change the Constitution to address the current reality and problem areas by acknowledging the British monarchy’s historical role, but also clearing up and writing down key governance rules to make them enforceable, and giving the GG and provincial governors legitimacy to enforce the rules through a non-partisan, representative appointment or election process, or (likely a better option) giving that enforcement power to the Supreme Court of Canada. Britain, Australia and New Zealand have all written down these key rules and made them more enforceable.

First, Conacher refuses to acknowledge the legal fact that the Statute of Westminster, 1931 created separate Crowns for all the Commonwealth Realms that share a Head of State in a personal union. Before 1931, there was only the Crown of the United Kingdom. The Statute of Westminster established the Crowns of Canada, Australia, New Zealand, etc. as separate legal entities and thus made Canada, Australia, and New Zealand independent states. There are currently 16 Commonwealth Realms, and this doctrine applies to all of them. Her Majesty Queen Elizabeth II therefore wears 16 Crowns and is separately the Queen of the United Kingdom, the Queen of Canada, the Queen of Australia, the Queen of New Zealand, and the Queen of 12 other Realms. The Prime Minister of the United Kingdom advises the Queen in Right of the United Kingdom, while the Prime Minister of Canada advises the Queen in Right of Canada. Nathan Tidridge’s diagram perfectly represents this evolution. When Conacher offers the platitude of “acknowledging the British monarchy’s historical role,” he ignores these crucial legal-constitutional and practical distinctions and suggests that he doesn’t even understand that the Crown of Canada and the Crown of the United Kingdom are separate.

Second, he opined that constitutional conventions should be “written down” and thus “made enforceable,” but he does not explain whether he means officialization in cabinet handbook or codification in law. He alludes to the respective cabinet handbooks of the United Kingdom, New Zealand, and Australia – which implies officialization – and he also argues that the Supreme Court should posses the power to enforce them legally – which implies codification. Well, which is it? You have to pick one or the other. Neither the United Kingdom, nor Australia, nor New Zealand has codified constitutional convention in statute; in other words, conventions in all three countries remain politically enforceable and thus not justiciable. Papua New Guinea, however, has codified several important former conventions into its constitution, which allowed a political crisis to morph into a full-fledged constitutional crisis in December 2011 and January 2012, as I demonstrate in Constitutional Crisis in Papua New Guinea: Codification Causes Confusion.

Third, Conacher misinterprets the consequences of officializing constitutional conventions in cabinet handbooks and couples that concept with this absurd notion of “giving the GG and provincial governors legitimacy to enforce the rules through a non-partisan, representative appointment or election process.” As Nick MacDonald and I explain in “Writing the Unwritten: The Officialization of Constitutional Conventions in Canada, the United Kingdom, New Zealand, and Australia,” the officialization of constitutional convention in cabinet handbooks does not necessarily led to more regal or vice-regal interventions in the political decisions of the Prime Minister and Cabinet. Cabinets endorse a particular version of a cabinet handbook in order to bind themselves politically to its contents, which, if anything, helps prevent regal or vice-regal intervention by clarifying the responsibilities of the Prime Minister, Cabinet, and Parliament. Cabinet handbooks are not designed embolden the Governor General or the Queen to don shining armour, mount white steeds, and become gallant Enforcers of Convention and Protectors Against the Abusive Prime Minister. Conacher seems to be alluding to the “vice-regal advisory elections” that other constitutional sophists have advocated; they would turn the vice-regals into de facto elected officials by, in effect, binding the Prime Minister to appoint the winner of the vice-regal election to the office. Such an arrangement represents a republican attempt to circumvent Section 41 (a) of the Constitution Act, 1982, but it would stillconstitute a fundamental change to the Offices of Governor General and the Lieutenant Governors.

Finally, I must also point out another curious contradiction: on the one hand, Conacher and the other main contributors to YCYC want to abolish the Crown of Canada, and on the other, Conacher argues in his letter to the editor that vice-regals should wield more power. When presented with two contrary proposition, both may be wrong and one must be wrong!

YCYC’s Second Press Release

The headline at least captures YCYC’s hyperbole, though within a clumsy sentence structure: “Experts tell conference Canada’s Constitution is a confusing mess of written and unwritten rules that allows for abuses by Prime Minister and premiers and their Cabinets.”[5] The opening paragraph does not bode well for the rest of the press release, which contains numerous factual errors and tenuous assertions.

The main speakers, all experts, detailed how Canada’s written Constitution contains rules for the decisions and actions of the Governor General and provincial lieutenant governors, and the Prime Minister and provincial premiers, but those rules are contradicted by unwritten rules (known as “conventions”) whose meaning and scope are debated by experts.

The Supreme Court of Canada explained in the Patriation Reference and in the Secession Reference that the contradiction that YCYC asserts in fact does not exist. As Nick MacDonald and I explained in “Writing the Unwritten: The Officialization of Constitutional Conventions in Canada, the United Kingdom, New Zealand, and Australia”:

The Supreme Court of Canada has described the conventional constitution as an integral component of Canada’s constitution and of equal standing to the Constitution Act, 1867 and the Constitution Act, 1982. The Supreme Court has also declared: “constitutional conventions plus constitutional law equal the total constitution of the country.”[6]

The Supreme Court also declared: “The Constitution is more than a written text.  It embraces the entire global system of rules and principles which govern the exercise of constitutional authority.  A superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading.”[7]

If you look at only one part of the constitution instead of the whole of the constitution, then these matters will appear contradictory!

YCYC then adopts the Aucoin School’s narrative on “abuse” of Crown prerogative and presents it as fact, when it only forms one interpretation among many.

The gap between the two sets of rules creates a confusing mess that allow for what most commentators see as abuses of power. Politicians in Britain, Australia and New Zealand have all agreed to new written rules that clearly define the powers of the Prime Minister in various situations, such as calling elections, opening and closing the legislature, and votes (including on budgets) and appointments.

The so-called “gap between the two sets of rules” does not exist, and the conventional constitution can only be misconstrued and maligned as a “confusing mess” if one does not understand the history and evolution of Westminster parliamentarism or the way that Responsible Government works today. In addition, YCYC has consistently ignored the Manual of Official Procedure of the Government of Canada and even refuses to acknowledge its existence alongside the British Cabinet Manual, the New Zealand Cabinet Manual, and the Australian Cabinet Handbook.  Perhaps YCYC ignores the document beacuse it spcifically contradicts their narrative on prime ministerial “abuse” of power; it explains that the Governor General has no discretion to reject the Prime Minister’s advice to summon or prorogue Parliament and may only refuse advice to dissolve under exceptional circumstances.[8] Contrary to the implication of the press release, the three Realms that YCYC mentioned have not followed each other lockstep with the same approach: The British and New Zealand Cabinet Manuals cover similar topics in similar depth, but the Australian Cabinet Handbook sets out a far more limited range of officializations. None of them come close to the detail and historical examples of the Canadian Manual.

The press release then quotes another of Conacher’s logically inconsistent and factually incorrect statements:

Experts agree that Canada’s written Constitution sets out rules that are not followed concerning the powers of the Governor General, provincial lieutenant governors, and the Prime Minister and premiers and their cabinets, and that no one agrees what our unwritten constitutional rules concerning these powers actually are,” said Duff Conacher, Spokesperson for YCYC. “Britain, Australia and New Zealand have written down their rules, and made it clear who has the power to do what, and when, and so made their governments more democratic and accountable. Canada could do the same by simply passing a law changing the Parliament of Canada Act and other laws, and changing the related law in each province.

First, if “no one agrees” what rules of the conventional constitution are, then how can “[all] experts agree” that the rules of the written constitution are not followed?[9] Ponder on that for a moment: the statement just doesn’t make sense!

Second, as in his letter to the editor, Conacher has fused officialization in cabinet handbook and officialization in statutory law into one concept, when they are in fact two distinct and different methods of writing down the conventional constitution. The British, Australian, and New Zealand cabinet handbooks, along with the often-ignored Canadian manual, officialize parts of the conventional constitution – they do not codify anything. Yet Conacher cited those cabinet handbooks as examples of codification in statutory law when he mused that the Parliament of Canada Act could somehow be amended. Presumably, Conacher is talking about limiting the Crown prerogatives on prorogation and dissolution – which, by the way, none of the cabinet handbooks have done. If so, then he is wrong to suggest that Parliament could restrict or eliminate these powers by passing a law. Only an amendment to Section 41 (a) of the Constitution Act, 1982 could do so.

I found the next short paragraph amusing, because it conceals relevant information by omission. Professor Lagassé discussed the Crown prerogatives on foreign affairs and defence – and he defended the Crown in general and those prerogative powers in particular. The press release omitted the second part because Lagassé’s scholarship directly contradicts the narrative of the despotic Crown that YCYC has established.

In a Non-Coincidental Coincidence, YCYC’s Push Poll Tells Them Exactly What They Want to Hear

Just when I thought that I had completed my critique of YCYC, the organization released another press release on 20 June 2012. YCYC conducted a shameless push poll on the roles of the Governor General and Lieutenant Governors and found, in a not so coincidental coincidence, that about two-thirds of Canadians support Duff Conacher’s normative prescription, almost to the precise wording of his letter to the editor of 5 June 2012. Apparently, “65% of Canadians want clear rules to regulate key decision-making powers of Governor General and provincial lieutenant governors, enforced by Supreme Court of Canada.”[10] This self-reinforcing, tautological, manipulative, and maligned poll says more about the depths to which YCYC is willing to stoop in order to buttress its normative narrative than it does about Canadians’ views on the vice-regals.  The poll’s results are about as accurate and truthful as the 90-odd percent approval ratings that dictators receive.

The survey’s two questions reveal the manipulative nature and factual errors of this push poll, which clearly cajoles the respondents to give the “right” answer. The questions are inherently flawed, so I put no stock whatsoever in the responses. A poorly-worded, manipulative input yields an irrelevant output.

Question1

Under Canada’s current Constitution, the British Monarch together with an appointed Governor General (Lieutenant Governors for the Provinces) have the following decision-making powers:

1. To approve or reject any law passed by our elected politicians;
2. To determine when elections are held;
3. To chose Canada’s Prime Minister and the Premier of each province after an election, and;
4. To determine when Parliament and Provincial Legislatures are opened and closed.

To what extent do you agree or disagree with the British Monarch and Governor General and Lieutenant Governors having these decision-making powers?

1. Strongly agree
2. Agree
3. Disagree
4. Strongly disagree
5. [Do not read] Don’t know/refused

Question 2
Do you think that these decision-making powers of the British Monarch and Governor General and Lieutenant Governors should be…

1. Set out in clear rules that are enforced by the Supreme Court of Canada.
2. Given to a person in a new position who is elected by Canadians.
3. Both
4. Neither
5. [Do not read] Don’t know/refused

I suspect that Conacher himself wrote these questions, because they contain the same factual errors as his letter to the editor and the press release of 5 June 2012. These questions assert that the vice-regals give Royal Assent, make appointments, and summon, prorogue, and dissolve unilaterally and independently. In reality, vice-regals give Royal Assent as part of the Crown-in-Parliament and therefore on and in accordance with the advice of the legislature – not on the advice of the Cabinet. And with respect to the other functions, the vice-regal acts on and in accordance with the advice of Ministers of the Crown. Second, exactly zero out of those four powers is carried out in the name of the Queen of Canada. The Queen of Canada appoints or dismisses Governors General and appoints four or eight additional Senators (Section 26 of the Constitution Act, 1867) on and in accordance with the advice of the Prime Minister of Canada. I highlight Queen of Canada because between 1931 and 1982 the “British Monarch” carried out few functions in right of Canada. The King or Queen of the UK had to give Royal Assent to acts of the British Parliament that amended the British North America Act, which were undertaken on the advice of the Government of Canada. (I explained that situation in more detail in “The Constitution Act, 1982 Includes More Than the Charter of Rights and Freedoms“). Again, Conacher does not understand the difference between the Queen of the United Kingdom and the Queen of Canada. Incidentally, neither does Carl Turkstra. At the launch on 4 June 2012, he dismissed the legal-constitutional doctrine of the separate Crowns as “dogma.” Of course, it is is legal-constitutional fact.

Conclusion: The Facts on the Officialization of Constitutional Conventions in the Core Commonwealth

Therein lies the problem with Your Canada, Your Constitution: the donors and players within the organization barely contain their sheer contempt for the Crown of Canada and in so doing deny the facts of the constitution. Instead, they want to make their own facts and construct their own reality. Those behind YCYC may campaign against constitutional monarchy all they like, but they must not try to pass off their normative arguments and crypto-republicanism as valid factual descriptions of how the constitution and machinery of government actually work in Canada.

Nick MacDonald and I co-authored “Writing the Unwritten: The Officialization of Constitutional Conventions in Canada, the United Kingdom, New Zealand, and Australia,” which will soon appear in the summer issue of the Journal of Parliamentary and Political Law. It provides proper descriptions of many of the issues that YCYC has misinterpreted and misrepresented.

Similar Posts:

• Reserve Powers
• Crown-in-Council Prerogatives
• Commonwealth Realms
• Officialization of Constitutional Convention
• Constitutional Crisis in Papua New Guinea: Codification Causes Confusion
• Contrarian for the Crown Infiltrates Your Canada, Your Constitution