The Privileges of Aristocracy: Solicitor-Client Privilege Under the Access to Information Act

Posted on 2021/06/30 by J.W.J. Bowden

“The American aristocracy is at the attorneys’ bar and on the judges’ bench.”

In On Democracy in America, Alexis de Tocqueville argued that lawyers had already emerged as the aristocratic class of the United States of America by the 1830s. But his observation would apply readily to most Common Law jurisdictions, thus including Canada, because we all rely on a cumulative and evolving body of precedent, the principle of stare decisis, or judge-made law.

The United States firmly rejected peerages and titles of emolument in its Constitution in the 1780s. Canada likewise lacks a hereditary legislative body like the House of Lords – even though the Constitutional Act, 1791 gave the Governors of Upper Canada and Lower Canada the authority to create hereditary peerages for the Legislative Councils – so the legal profession in both the United States and Canada has assumed the role and functions of the aristocracy in Europe.  

Tocqueville observed:

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Posted in History of British North America | 2 Comments

The Letters Patent Removing Julie Payette from the Office of Governor General

Posted on 2021/05/04 by J.W.J. Bowden

I’m circling back, as Jen Psaki would say when she has more news to convey, and closing the loop on this saga of the spectacular remnant of Julie Payette’s supernova. On 10 April 2021, the Trudeau government gazetted the letters patent removing Julie Payette as Governor General. The wording of the executive instrument entrenches a legal fiction that Payette resigned entirely on her own account instead of under a cloud of intense pressure and scrutiny for having cultivated the crown jewel of all toxic workplaces within the federal civil service. And the letters patent are dated to 22 January 2021, one day after Payette announced her resignation.

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Posted in Crown (Powers and Office), Governor General | 1 Comment

Dissolution By Demise of the Crown in Canada

Posted on 2021/04/27 by J.W.J. Bowden

Three Ways of Dissolving Parliament

In his famous treatise Commentaries on the Laws of England, Blackstone identified that dissolution can occur through one of three ways:

“1. By the king’s will […];
2. By a demise of the crown […];
3. By length of time.”[1]

Under Responsible Government, where Ministers of the Crown take responsibility for all acts of the Crown and the Crown acts on ministerial advice, dissolution by “the king’s will” now means dissolution by the prime minister’s or premier’s will. All dissolutions of the Parliament of Canada since 1867 have occurred under this method, and based on what I’ve seen in the last ten years of researching this field, the premiers have effected all dissolutions of the provincial legislatures since 1867 as well. (But if someone can find a contrary example, please do let me know – because that would prove most interesting). The first minister advises the governor to issue a proclamation dissolving the legislature, the cabinet advises the governor-in-council to issue writs of election, and the first minister advises the governor to issue a proclamation summoning the next legislature for despatch of business. This method of dissolution requires a series of proclamations and decisions from ministers of the Crown.

But the other two methods of dissolution happen automatically.

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Posted in By Demise of the Crown, Dissolution, History of British North America | 5 Comments

An Unlawfully Long Writ Rewards the Incumbent and Will Be Allowed to Stand

Posted on 2021/03/30 by J.W.J. Bowden

Elections Newfoundland & Labrador announced the results of the ill-begotten election on Saturday at 1030 Eastern Daylight Time. The Liberals have won a bare majority of 22 out of 40 seats in the House of Assembly, where the Furey government will face a decapitated and floundering opposition. Both the leaders of the Progressive Conservative and New Democratic Parties, Ches Crosbie and Alison Coffin, lost their seats.[1] The rumps of these parliamentary parties will have to select new leaders from their remaining MHAs.

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Posted in Crown (Powers and Office), Dissolution, Fixed-Date Elections, Reform | 2 Comments

The Over-Zealous Caretakers of Newfoundland and Labrador in 2021

Posted on 2021/03/26 by J.W.J. Bowden

The Caretaker Array in Star Trek Voyager

Newfoundland and Labrador’s Caretaker Guidelines from 2019

Elizabeth Day’s Email on the GuidelinesDownload
Guidelines on the Conduct of the Public Service During an Election PeriodDownload

A few weeks ago, I received a report from one of my readers that some departments of the government of Newfoundland and Labrador have decided not to answer questions from journalists on the grounds that the Caretaker Convention prevents them from doing so. That is false. In fact, the Executive Council Office of Newfoundland and Labrador created some guidelines on the caretaker convention under the previous ministry of Dwight Ball in 2019 entitled Guidelines on the Conduct of Public Servants During An Election Period. They say the opposite of what these civil servants have claimed:

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Posted in Caretaker Convention & Government Formation, Constitutional Conventions | 1 Comment