Michael Ignatieff’s Fire & Ashes: An Oath of Allegiance If Necessary, But Not Necessarily to the Queen

Posted on 2013/09/29 by J.W.J. Bowden

Michale Ignatieff (Awkward)

Ignatieff Reveals His Thoughts on the Oath of Allegiance and Canada’s Constitutional Monarchy

In his new autobiography of his brief stint in Canadian politics, Fire and Ashes: Success and Failure in Politics, Michael Ignatieff couched his opposition to the parliamentarians’ oath of allegiance in familiar republican tropes.

Your awareness of what these responsibilities [as an MP] are begins when you take your oath of office in a wood-panelled room near the House of Commons chambers on Parliament Hill. What surprised me is that the oath included nothing about the people who had voted me into office. Instead, as in all Commonwealth democracies like ours, I swore an oath to Her Majesty the Queen and her heirs and successors. The “heirs and successors” part stuck in my throat, since I think we ought to decide, when the current Queen dies, whether to continue to acknowledge her family as our sovereign. Even if we continue to do so, there’s a strong case that defines the basic allegiance to elected representatives towards their citizens. Other democracies have this. For all my very real admiration for Her Majesty, I didn’t believe [that] I had responsibilities to the Crown alone. Our current oath of allegiance reinforces rather than reduces the gulf between the representatives and the citizens [whom] we represent. It seems regrettable that I was not able to swear to uphold the Canadian Constitution and to defend the rights of the people of Canada.[1]    

I transcribed the entire paragraph because it contains several interesting (and perhaps, unintentionally revealing) little quirks. For instance, he talks of the oath in terms of the obligations of “elected representatives toward their citizens.” First, both elected MPs and appointed Senators swear this oath or affirm this solemn affirmation, so being an “elected representative” is not a necessary condition. Second, “their citizens” strikes me as an usual phrase, because citizens, be definition, are not in anyone’s possession. Normally one would say “their constituents.” Ignatieff also made two significant errors; one shows profound ignorance of the constitution, and the other shows that Ignatieff made up an event that could not possibly have happened for literary effect after drawing upon the wording of different oaths of allegiance. Ignatieff must have been drawing upon his career as a journalist — a trade in which one takes a certain licence — rather than his career as a scholar. If I were to present a demonstrably false, unsubstantiated statement as an argument in one of Ignatieff’s classes, he would quite rightly give me a bad mark accordingly.

The Parliamentarians’ Oath of Allegiance Doesn’t Mention “Heirs and Successors”

First, the parliamentarians’ oath of allegiance does not include the phrase “heirs and successors.” The Fifth Schedule of the British North America Act, 1867 prescribes the form of the parliamentarians’ oath of allegiance as:

I, A.B., do swear, That I will be faithful and bear true Allegiance to Her Majesty Queen Victoria.

Note.—The Name of the King or Queen of the United Kingdom of Great Britain and Ireland for the Time being is to be substituted from Time to Time, with proper Terms of Reference thereto.[2]       

The oath now reads, “I, A.B., do swear (or affirm) that I will be faithful and bear true Allegiance to Her Majesty Queen Elizabeth II.”[3] Only a constitutional amendment could change this wording, though such an amendment would probably fall under section 44, which allows the Parliament of Canada alone to change the provisions of the Constitution Acts relating to “the executive government of Canada or the Senate and House of Commons.” It would probably fall under section 44, and not section 41(a) because this particular oath pertains to the House of Commons and Senate as houses of Parliament, not to the Crown-in-Parliament as a whole, and therefore not to “the office of the Queen” under section 41(a); both the Commons and Senate enjoy the parliamentary privilege to regulate their affairs and determine the qualification, or disqualification, of members therein. Since the Commons and the Senate can each vote to disqualify members for breach of oath, they could change the oath, and the Governor General would have to give the bill Royal Assent. I also argued in an earlier entry that the Parliament of Canada should update the oath so that it reads: “I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, according to law.” We should update our oath to reflect Canada’s constitutional evolution. In 1867, when the parliamentarians’ oath was written, the “one and indivisible Imperial Crown” reigned over the United Kingdom and all the Crown colonies; but in the mid-20th century, the Imperial Crown multiplied into a personal union as the self-governing Dominions became independent, sovereign States. In short, Canada, Australia, and New Zealand became independent, sovereign States only when they gained separate Crowns, i.e., separate corporations sole, or legal persons, that formed the personal union.

According to the Library of Parliament, and O’Brien’s and Bosc’s manual on parliamentary procedure, and Marlot’s and Montpetit’s earlier edition of the same, the current parliamentarians’ oath or solemn affirmation does not include the phrase “heirs and successors, ”so it could not possibly have “stuck in his throat” when he took the parliamentarians’ oath in 2006. He may have used this device for literary effect and to transition into his general opposition to the oath and on the Crown of Canada. Ignatieff uses the phrase “stuck in my throat” as a polite and subtle way of saying that he had difficulty swearing the oath because he has reservations about constitutional monarchy; in other words, he had to swallow his pride and objection in order to become a Member of Parliament and a Privy Councillor. This reservation is ironic given Igantieff’s own aristocratic background; after all, his grandfather Count Pavel Ignatieff served as Czar Nicholas II’s last Minister of Education. I could certainly understand objecting to a Russian-style monarchy or holding reservations toward a Hanoverian-style monarchy, for I would share them! But the modern British model of constitutional monarchy upholds Responsible Government, liberty, and the rule of law.

Michale Ignatieff

Other Oaths of Allegiance in Canada

Ignatieff became a Privy Councillor in 2009 and thus had to swear a second oath of allegiance to the Queen of Canada. But even the Privy Councillor’s oath does not include the phrase “heirs and successors”! (I was surprised that it does not, but perhaps it is also an older form, like the parliamentarians’ oath).  Other Canadian oaths of allegiance — those for naturalized citizens, personnel in the Canadian Armed Forces, and members of Law Societies — do include the phrase “heirs and successors,” and the latter two also tack on the phrase “according to law” at the end. He may have conflated the parliamentarians’ oath with the oath of allegiance for naturalized citizens or that for members of the Canadian Armed Forces. Even so, this is an easily verifiable piece of information — even if he takes licence with his own memories as with some of the facts!

Privy Councillors take the following oath:

I, __________, do solemnly and sincerely swear (declare) that I shall be a true and faithful servant to Her Majesty Queen Elizabeth the Second, as a member of Her Majesty’s Privy Council for Canada. I will in all things to be treated, debated and resolved in Privy Council, faithfully, honestly and truly declare my mind and my opinion. I shall keep secret all matters committed and revealed to me in this capacity, or that shall be secretly treated of in Council. Generally, in all things I shall do as a faithful and true servant ought to do for Her Majesty.

The oath of allegiance for naturalized citizens takes the following form, as prescribed by statute:

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.   

Personnel in the Canadian Armed Forces take the following oath, as prescribed by the Queen’s Orders and Regulations:

I, ________________________, do swear/affirm that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Her Heirs and Successors according to Law. So help me God.

Members of the Law Society of Upper Canada take a similar oath (I think as prescribed by a provincial statute):

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Heir heirs and successors according to law.[4]

The Oath of Allegiance and the Crown as a Corporation Sole

Second, Michael Ignatieff adopts the standard republican line that “after the current Queen dies,” Canadians should engage in a debate that would ultimately lead to abolishing the Crown of Canada and proclaiming the First Federal Republic of Canada. In classic Liberal ambivalence and contradiction, Igantieff simultaneously expresses his “very real admiration for Her Majesty,” but then shrouds his deliberately ambiguous endorsement of republicanism in the language of democracy, the general will – and the politician’s best friend: plausible deniability. Duff Conacher and Andrew Cohen of the mendacious “educational charity” Your Canada, Your Constitution have endorsed the same rhetorical approach. They promote this tactic as if the Government of Canada could somehow delay proclaiming the Prince of Wales as the next King of Canada and leave the Crown vacant until Canadians vote in a referendum on whether to abolish the Crown and the line of succession.

On its surface, this idea may sound reasonable and logical; in fact, it contradicts the nature of the Crown and succession to the Crown. The Crown of Canada is a corporation sole and operates on the principle of automatic hereditary succession. Several British scholars – Blackstone, Halsbury, Allen, and others – have written extensively on this fact since the 18th century, and the Crown of Canada inherited this body of law and precedent when it emerged as a separate legal person in the 20th century. As such, when the reigning Sovereign dies, his or her heir and successor immediately becomes the Sovereign, as prescribed by law; succession thus ensures the continuity and perpetuity of the State and government. This is why the terms “King,” “Queen,” “Crown,” “His Majesty,” and “Her Majesty” enjoy legal-constitutional equivalency. Logically, you simply cannot say that you are loyal to the Her Majesty the Queen but oppose the Crown – because they are inseparable and both refer to the same legal personality: the corporation sole known as the Crown of Canada.

All corporations, whether sole or aggregate, are legal persons, which “may maintain a perpetual succession and enjoy a kind of legal immortality,”[5] unlike natural person or persons who comprise corporations. A corporation aggregate is a legal person that consists of multiple natural persons. Normally when we use the word “corporation,” such as in the contexts of a private or publicly traded company, we are referring to a corporation aggregate. When one or more natural persons “are consolidated and united into a corporation, they and their successors are then considered as one person in law.”[6] In contrast, a corporation sole consists of only one natural person and his successors, as Blackstone explains:

Corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense, the king is a sole corporation […]

The king, for instance, is made a corporation to prevent in general the possibility of an interregnum or vacancy of the throne, and to preserve the possessions of the crown entire; for immediately upon the demise of one king, his successor is, as we have formerly seen, in full possession of the regal rights and dignity.[7]

All the major oaths of allegiance for public office in Canada, except the parliamentarians’ oath, include the phrase “heirs and successors” and thus make clear that they refer to the Crown of Canada in its corporate capacity, not to the personal capacity of the current reigning Sovereign. Ignatieff’s usual wording on “continuing to recognise [The Queen] and her family as sovereign” is thus (perhaps unintentionally) accurate, because the perpetuity of the corporate person known as the Crown of Canada does indeed depend upon the line of succession, as prescribed by law. As Blackstone says, a corporation sole includes both the current natural person and his successors. That old expression, “The King is dead — long live the King!” sounds superficially absurd, but it in fact conforms to the fundamental nature of the Crown. The natural person who personifies the legal person dies for the time being, but the legal person lives on in perpetuity because another natural person immediately takes the place of his predecessor and ensures the continuity of the corporation sole. In other words, to invoke another old expression, “The King never dies” (unless a constitutional monarchy turns itself into a republic by abolishing the Crown altogether).

If republicans want to precipitate a debate on the Crown of Canada, and whether Canadians should abolish it, they should not subsist on this forlorn, false hope that the death of the reigning Sovereign would present them with the perfect opportunity – it won’t, because succession occurs automatically.  The Government issues a proclamation acknowledging the demise of the Crown from one reigning Sovereign to the next; this proclamation does not cause the succession – so an anti-monarchist Government could not force an interregnum by refusing to issue this proclamation or make it subject to a referendum or constitutional conference. The Crown of Canada is a corporation sole and thus enjoys legal perpetuity unless and until it were abolished and dissolved altogether. In short, the succession of one reigning Sovereign to another does not provide some kind of opportune time to start this debate. The politics and perception do not overcome the legal-constitutional realities of succession.

Allegiance to the Queen Means Allegiance to the Constitution and to Canada

Ignatieff’s final suggestion that MPs swear an oath of allegiance to the Constitution and to “defend the rights of the people of Canada” stems from a dangerous current of political Romanticism.  The “Queen of Canada” has an objective legal meaning; Elizabeth II personifies the Crown of Canada and represents the country in both political senses of the word (the State and the political nation), and the Crown of Canada –a legal person subject to law – provides the basis for all executive, legislative, and judicial authority. The oath or affirmation of allegiance to the Queen therefore reflects Canada’s constitutional monarchy and legal-constitutional position. Section 9 of the Constitution Act, 1867 vests executive authority in the Queen, and section 17 establishes the Crown-in-Parliament as the Queen, Senate, and House of Commons. A bill only becomes law upon Royal Assent, and an order-in-council or proclamation is only promulgated with the Crown’s approval. In addition, the oath of allegiance that all parliamentarians must swear or affirm before taking their seats appears in the fifth schedule to the Constitution Act, 1867. The basic form of the oath therefore forms part of the Constitution of Canada. The other oaths are statutory, but flow from the Constitution.

Perhaps Ignatieff was alluding to the United States in the phrase “other democracies.” If so, his analogy still would not hold up. All official American oaths of allegiance – those of congressional representatives, the President, personnel in the armed forces, and naturalized citizens – refer to the Constitution of the United States, because it forms the basis of all legislative, executive, and judicial authority in and over the United States of America. Americans do not pledge allegiance to the United States itself, nor to “the people,” nor to “the nation.” (The Pledge of Allegiance, in which American schoolchildren express loyalty to the flag, is not a legal oath of allegiance or oath of office).

In reality, “Allegiance to the King means allegiance to the Country,” as Beauchense’s Rules and Forms of the House of Commons of Canada states. More recently, O’Brien and O’Bosc have reiterated the same principle:

When Members swear or solemnly affirm allegiance to the Queen as Sovereign of Canada, they are also swearing or solemnly affirming allegiance to the institutions [that] the Queen represents, including the concept of democracy.

Both the Canadian and American oaths affirm the rule of law and thus acknowledge a higher authority to which we are all bound and which we must obey in order to maintain our tradition of ordered liberty and civilized society. In contrast, an oath to “the people” or to “the nation” would be dangerous in principle, because it substitutes the general will for the rule of law and law-governed liberty. An oath to “citizens” or to “the people of Canada” means absolutely nothing, and could thus be used to justify anything. An ambiguous pledge to “Canada” alone lacks an objective grounding in law and the constitution and could refer to either the country as in State or as in patria, or to the people, or to be left to each individual’s own interpretation. “Defending the rights of the people” sounds like a euphemism for the Charter of Rights and Freedoms, which forms part of the Constitution and thus falls under the ambit of the current oath.

Pledging allegiance to the Queen also means pledging allegiance to the Constitution of Canada, and to the rule of law, because the Crown forms the basis of all legal-constitutional authority in and over Canada. Under a constitutional monarchy the Crown is and must always be subject to law.

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[1]Michael Ignatieff, Fire and Ashes: Success and Failure in Politics (Toronto: Random House Canada, 2013), 93.
[2] I will also explain in more detail later why the note does not support the Government’s argument that the Queen of the United Kingdom automatically becomes the Queen of Canada. Essentially, this is other one of the many anachronisms that now riddle the British North America Act, which was written when there was a one and indivisible Imperial Crown. The written constitution has not been updated to reflect Canada’s transition from self-governing Crown colony to an independent and sovereign state. And since the “Constitution of Canada” consists of codified and uncodified elements, the written constitution often does not reflect the true constitutional position. Other anachronisms include the provision that allowed the Governor General to reserve bills for the consideration of the British Cabinet. That procedure dates to an era where the Governors were and acted as agents of the British Government through the Colonial Office; it became obsolete in practice after the British issued new Letters Patent in 1878, and it became obsolete absolutely upon the passage of the Statute of Westminster, 1931.
[3] Canada. Library of Parliament, Oaths of Allegiance and the Canadian House of Commons, James R. Robertson, revised by Michel Bedard. (Ottawa: Her Majesty the Queen in Right of Canada, October 2008): 5. http://www.parl.gc.ca/Content/LOP/researchpublications/bp241-e.htm
[4] The latter two oaths also contain the phrase “according to law,” which pertains directly to succession to the Crown and begs the question of “which law?” (The answer is that Canada has always had its own laws on succession through the Doctrine of Reception, and after 1937, because of an act of the Parliament of Canada).
[5] Sir William Blackstone, Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes, Volume 1, Books I & II, edited by George Sharswood (Philadelphia: J.B. Lippincott Co., 1893), 467.
[6] Sir William Blackstone, Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes, Volume 1, Books I & II, edited by George Sharswood (Philadelphia: J.B. Lippincott Co., 1893), 467.
[7] Sir William Blackstone, Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes, Volume 1, Books I & II, edited by George Sharswood (Philadelphia: J.B. Lippincott Co., 1893), 469.

Posted in Corporation Sole, Crown (Powers and Office), Succession (Sovereign) | 3 Comments

Harper’s Fourth Prorogation Looks Much Like His First

Posted on 2013/09/26 by J.W.J. Bowden

I thank James Anderson for having published this column on National New Watch’s Featured Ink earlier today.

Introduction

Prime Minister Harper advised that the 1st session of this 41st Parliament be prorogued on 16 September 2013, and that the 2nd session be summoned on 16 October 2013. In total, Prime Minister Harper has advised that parliament be prorogued four times – contrary to the Globe and Mail’s and CBC’s early reports that he had just undertaken his third this year. Some journalists forgot about Harper’s first prorogation because it did not generate any political controversy. Harper advised that the 1st session of the 39th Parliament be prorogued on 15 September 2007 and that the 2nd session be summoned with a Speech from the Throne on 16 October 2007. Harper’s second prorogation (5 December 2008 to 26 January 2009) and his third prorogation (31 December 2009 to 3 March 2010) proved more controversial because they gave the Government tactical advantage over the Opposition by, respectively, postponing a vote of confidence and a parliamentary investigation into the Afghan detainee file.

In short, Harper’s fourth prorogation most resembles his first – the timing and length are almost identical. Unlike his second and third prorogations of December 2008 and December 2009, respectively, and McGuinty’s prorogation of October 2012, Harper’s fourth prorogation in no way amounts to a tactical usage. Some Canadians have only questioned it because they have compared it to Harper’s second and third prorogations instead of to his first. The length of the intersession, at one month, conforms to all the legal-constitutional norms and federal practices. This prorogation is thoroughly ordinary for at least four reasons.

Four Reasons Why Harper’s Fourth Prorogation Is Thoroughly Ordinary

First, no one can claim that this prorogation came as a surprise; in fact, Prime Minister Harper took the unusual step of announcing several weeks in advance his intention to advise that Parliament be prorogued in the autumn. The Liberals and New Democrats knew what to expect and almost certainly planned for a prorogation this autumn. Harper announced his planned parliamentary timetable so early that the Globe and Mail published an inaccurate and hyperbolic editorial as early as August 2 – more than one month beforehand – in which the paper of record lashed out against Harper’s “third” prorogation (which in fact happened in 2009).

Second, the timing of this prorogation within the life of the parliament conforms to the norm. Since 1984, most sessions in majority Parliaments have lasted two years. The 1st session of this 41st Parliament started in June 2011 and ended in September 2013; in fact, it was the longest since the 1st session of the 32nd Parliament, which lasted from April 1980 to November 1983.

Third, every prorogation of the Parliament of Canada since 1867 has specified the date on which Parliament would return for the subsequent session. By custom, prorogation involves two proclamations: the first terminates the present session, and the second summons the next session for “dispatch of business.” The Governor General issues both proclamations on and in accordance with the advice of the Prime Minister, and the Deputy Attorney General and the Deputy Registrar General must counter-sign both proclamations, pursuant to the Seals Act. In fact, each proclamation even state that the Governor General, as the Queen’s representative, prorogues and summons Parliament “by and with the advice of Our Prime Minister.” If the Prime Minister does not know the date on which Parliament should reconvene, such as before an upcoming change of government, the Dispatch of Business summons Parliament 40 days later pro forma; the Prime Minister can then advise the Governor General to extend the duration of the intersession once the first Dispatch of Business expires. But that procedure will not apply to this case. In contrast, the procedures for prorogation in Ontario and most other provinces generally do not include the second proclamation for the dispatch of business. As we saw in 2012, Premier McGuinty advised that the legislature be prorogued on October 15 indefinitely; his successor, Premier Wynne, advised that the legislature be reconvened shortly after her appointment, on February 19. Harper’s fourth prorogation will last for one month, from September 16 to October 16 – the norm under Mulroney and Chretien.

Fourth and finally, Harper’s fourth prorogation truly is routine and should not generate the controversy that his second and third tactical (but constitutionally sound and legitimate) prorogations did four and five years ago. Harper now leads a majority government. This fourth prorogation came after the summer recess – which the intersession will end up extending until October 16 – and therefore did not postpone any pending business. The Harper government has exhausted its legislative program and passed all the bills that it still wanted to pass or could pass in the 1st session. Thomas Mulcair, Leader of Her Majesty’s Loyal Opposition, suggested that Harper opted for this intersession of one month in order to prevent questioning about the Senate Expenses Scandal, among other issues. The intersession would certainly delay such questions – but it will not make these political problems disappear.

Journalistic Hyperbole Seeps into Academic Writing

On 2 August 2013, the Globe and Mail released an absurd editorial criticizing Prime Minister Harper’s 4th prorogation – though the national paper of record described it throughout as Harper’s “third” prorogation, which in fact occurred in December 2009. The editors insist that “Parliament should not sit at the whim of the Prime Minister.” In reality, the Parliament of Canada has always “sat at the whim of the Prime Minister,” at least in the sense that the Prime Minister takes responsibility for the executive decision to summon and prorogue parliament. But the Government’s various responsibilities, notably implementing its platform or other policies and the annual budgetary cycle, must also factor into the Prime Minister’s “whims.”

The Globe also created an interesting neologism by accusing Harper of being a “serial proroguer.” Strictly speaking, this is true, if only because Harper has advised more than one prorogation. Most Prime Ministers are also “serial summoners” and “serial dissolvers” as well. The Globe then made the extraordinary claim that “No other modern prime minister has resorted to prorogation as often the current one.” This is false (though “modern” is a bit ambiguous). Prime Minister Chretien also advised four prorogations; Prime Minister Mulroney, three; Prime Minister Trudeau, eight. In any event, the Globe and Mail’s objection should pertain not to the number of prorogations that a Prime Minister may advise and receive over the course of his premiership, but rather the duration of the intersession – the days between prorogation and the Speech from the Throne. Mulroney started, and Chretien and Harper have continued, the trend toward longer intersessions. Mulroney’s first two intersessions each lasted 32 days, but his third prorogation conformed to the older pattern and lasted only one day. Chretien’s intersessions fell between 13, 23, 24, and 81 days. Harper’s intersessions fell between 31, 52, 62 days.

The Prorogation-Coalition Controversy of 2008 first brought prorogation, this once obscure but important power of the Crown, into prominence; it has also made any rational, calm discussion on it difficult – certainly in the media, but, more surprisingly and troublingly, within academia. Prorogation terminates a session of parliament, clears all government bills from the Order Paper, allows parliamentary committees to be reconstituted (such as after the appointment of new Senators), and ensures that the Government introduces its latest program in a Speech from the Throne that opens the next session. Dissolution extinguishes the parliament itself. However, since 2008, political rhetoric has crept into the debate and has replaced neutral descriptive terminology. Now prorogation does not merely “end a session” – it “shuts down” Parliament, with all the negative connotations of that verb. In extreme cases, prorogation might even “silence” Parliament, with the implicit comparison of Prime Minister Harper to a Stuart King. (Professor Lori Turnbull used both phrases in her recent column in The Globe and Mail.)

Conclusion: Prorogation and Responsible Government

While Harper’s fourth prorogation itself conformed to the federal customs and most legal-constitutional norms, the Prime Minister did make one significant mistake that contradicts the basic principle of Responsible Government. Unlike for his previous prorogations, Harper’s website did not confirm the length of the prorogation and the date on which the Governor General would summon the next session with the government’s Speech from the Throne. The Prime Minister has a duty to publish that information on his website in order to prevent anyone from contacting the Governor General about decisions of the executive government for which the Prime Minister and Cabinet take responsibility. On 4 September 2007, “Prime Minister Harper announced his intention to prorogue parliament. (Presumably, PMO had discussed the upcoming prorogation with Government House before publishing that news release). In December 2008, Harper spoke to reporters, after spending two hours in Rideau Hall, to confirm and defend the prorogation. In addition, on 30 December 2009, Harper’s website announced that a “Throne Speech [would] launch a new session of parliament.” While that news release and its accompanying backgrounder assiduously avoided any mention of “prorogation” for political and public relations purposes, it still allowed journalists to report that a prorogation had occurred, since Speeches from the Throne can only come after a prorogation. The Governor General’s Office should not have to field questions on matters of the executive government of Canada, because the Prime Minister and Cabinet take responsibility for all acts of the Crown. The Prime Minister – not the Governor General – must therefore explain the reasons behind and the consequences of an executive decision like prorogation.

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Posted in Crown (Powers and Office), Prorogation, Reaffirmation of, Responsible Government | 1 Comment

Will Wynne Pull a Harper? Fixed-Election Laws and Dissolution in Ontario

Posted on 2013/09/23 by J.W.J. Bowden

Wynne Reassures Ontarians That She Won’t Pull a Harper -Yet 

In an interview with the Toronto Star, Premier Wynne assured MPPs and Ontarians that she would not advise an early dissolution if the Conservative Party of Ontario voted to oust Tim Hudak as leader at the policy convention this past weekend (even though that was never really a possibility).

I would not do that. […] I don’t think that would be fair. […] It’s important for people to know that wouldn’t be a trigger. They would need to have the time to go through their leadership process.

Responsible Government, Fixed-Election Dates, and Dissolution

However, this article made no mention of Ontario’s fixed-election law – which the McGuinty government introduced in 2005 with the stated intention of avoiding these so-called “snap elections.” Ontario’s law conforms to the standard Canadian model. Section 9(1) of Elections Act states in its non-derogation clause, “Nothing in this section affects the powers of the Lieutenant Governor, including the power to dissolve the Legislature, by proclamation in Her Majesty’s name, when the Lieutenant Governor sees fit.”[1] Section 9(2) sets fixed elections on the first Thursday in October in 2007 an every four years thereafter. The second fixed election (not in the nefarious sense of the phrase!) occurred as planned in October 2011; the next election would therefore occur in October 2015.

The Minister responsible, Michael Bryant, told the Assembly that the bill would abolish “the right of the Premier to call elections based on partisan and political considerations.”[2] In reality, of course, Canada’s model of fixed-election laws do no such thing. In fact, they deliberately preserve the Governor’s power to dissolve the legislature on and in accordance with the advice of the First Minister. Certain individuals who either do not understand what Responsible Government means, or pretend not to understand for their own mendacious purposes say: “Aha! The statute only mentions the Lieutenant Governor, not the Premier, which means that the Lieutenant Governor personally and formally controls the exercise of executive power, including dissolution.” For instance, Duff Conacher of that mendacious “educational charity” Your Canada, Your Constitution (YCYC) once argued with me over Twitter that the phrase “as the Governor sees fit” means that the Governors can cavalierly reject the advice of First Ministers for any reason, as if such interventions carried with them no consequences. This is not so; under our constitutional system, statutory interpretation is not as absolute as a strictly literal reading. Responsible Government belies fundamentalist interpretations of executive power!

Responsible Government means that Ministers of the Crown take responsibility for all acts of the Crown, and therefore that the Governor acts on and, save for exceptional circumstances, in accordance with the advice of the First Minister or Cabinet. The Governors still possess the discretionary authority to reject advise to dissolve parliament and thus refuse fresh elections; however, a Governor can only justify his intervention into the executive government under extraordinary circumstances precisely because of the exceptional consequence of his discretion. By refusing to act on the advice of the First Minister or Cabinet, the Governor dismisses them from office or forces them to resign, because a Ministry can only take responsibility for advice that it has offered, not for the contrary advice that it did not offer. In addition, the Governor can reject ministerial advice in this fashion if and only if he can then appoint a new First Minister who will take responsibility the dismissal or resignation of the outgoing Ministry. Some First Minister must always take responsibility for dissolution. Finally, refusing advice to dissolve is not the equivalent of dissolving unilaterally. Under our system, Governors do not and cannot undertake any executive act unilaterally because every proclamation, order-in-council, or other executive instruments requires the counter-signature of a responsible Minister of the Crown before the Governor can formally promulgate it. The proclamations of dissolution, the writs of election, and calling together the next parliament after the general election all require ministerial counter-signatures.

Conclusion: We Need More Examples of Fixed-Election Dates and Minority Parliaments

As it turned out, the Conservative Party rejected a proposal to change its constitution to allow for a leadership review that could have resulted in Hudak’s ousting or resignation, so Wynne would not have to take a Conservative leadership election into account. The Globe and Mail has reported that the Liberals and Conservatives agreed to pass eight bills through the legislature that do not amount to votes of confidence or supply; this agreement did not include the New Democrats. This is not surprising, given that Conservative leader Hudak opted to meet with Liberal Premier Wynne at her suggestions, while New Democratic leader Andrea Horwath declined. The latter article also argued that Hudak will allow some of these “non-contentious” Liberal bills to pass in order to position himself to oppose the Government on its upcoming supply bills and economic policies. However, this article also offers no information on whether Wynne would advise an early dissolution unprompted after these non-contentious bills pass, or whether her minority Liberal government would allow Hudak’s Conservatives to table a motion of non-confidence on which the Legislative Assembly would then take an up-or-down vote.

It is possible that since Prime Minister Harper’s unprompted early dissolution in 2008, Canadian journalists have accepted the truth of Canada’s fixed-election laws: that they do not create stable fixed-term parliaments, that they deliberately preserve the Governors’ power to dissolve on prime ministerial advice and thus the status quo, and that they therefore do nothing but provide rhetorical cover to politicians who want the voters to perceive them as having done something. We would need to collect more examples of minority parliaments in the provinces that have fixed-election laws in order to test this theory and draw a definitive conclusion. But it is also possible that the media have decided to apply a different standard to Ontario, whether for purely partisan reasons or otherwise. Unfortunately, I suspect that the latter applies in this case.

All the Canadian fixed-election laws are useless; Harper did not “break his own law” in 2008, and nor would Wynne “break the law” in Ontario if she were to advise an early dissolution. I ask only that the media cover similar situations with the same level of scrutiny.

Similar Posts:

[1] Ontario, Legislative Assembly. An Act to Amend the Elections Act, The Election Finances Act, and the Legislative Assembly Act, to Repeal the Representation Act, 1996, and to Enact the Representation Act, 2005. Bill 176, 38th Legislature, 1st Session, 2005.
[2] Bryant, Michael [“Election Statute Law Amendment Act, 2005,”] In Ontario, Legislative Assembly of Ontario, Hansard, 38th Legislature, 1st Session, Thursday, 5 May 2005.

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

The Government of Canada’s Position on Succession in 1937, 1943, & 1981

Posted on 2013/09/22 by J.W.J. Bowden

Introduction

Since December 2012, Professor Philippe Lagassé and I have put forward some arguments on the nature of the Crown of Canada as a corporation sole and all that this legal concept entails for the royal succession and the emergence of the Crown of Canada as a separate legal entity from the Crown of the United Kingdom. Perhaps we have engaged in a futile academic exercise, but I believe that the historical evidence supports our claims.

The Government of Canada in 2013 has acknowledged that the Crown of Canada is a separate legal person relative to the Crown of the United Kingdom; however, the Department of Justice also insists that the preamble of the Constitution Act, 1867 has created a “principle of symmetry” out of the personal union such that the Queen of the United Kingdom automatically becomes the Queen of Canada without any Canadian intervention. In effect, the only Canadian law relating to succession is the preamble of the Constitution Act, 1867. This is a false argument. From the primary and secondary sources that I have gathered thus far, I can make the following hypothesis on why succession to the Crown lost its clear place in Canadian law and in the Constitution of Canada. First, the Trudeau government shifted the constitutional focus from the patriation of the British North America Act and establishing an indigenous amending formula to entrenching a bill of rights. Consequently, most constitutional questions since the 1980s have centered on the Charter, and any talk of amending the constitution has become anathema to Canadian politics since the failure of the Charlottetown Accord in 1992. Canadian political observers even refer to amending the constitution as “opening” the constitution – with the obvious allusion to perils that await those who dare open Pandora’s Box. Second, the Department of Justice and the Privy Council Office lost vital institutional memory and expertise on the nature of the Crown of Canada.

I have presented several primary sources on this blog in order to refute the Government of Canada’s main argument that Canada has no law on succession. In fact, Canada has several laws on succession, which now falls under “the office of the Queen” under section 41(a) of the Constitution Act, 1982. In this entry, I present the following documents that complement Prime Minister King’s arguments of January 1937:

1937: Attorney-General Ernest Lapointe Explained How the Statute of Westminster Gave Canada Control Over British Statutes That Apply as Part of Canadian Law

In a debate on the Foreign Enlistment Act, Justice Minister Lapointe explained to the Commons the status of British statutes under Canadian law on19 March 1937. Prior to 1931, several British statutes automatically applied to Canada as part of Canadian law because the Westminster Parliament exercised legislative sovereignty over the Crown colonies. The Colonial Laws Validity Act, 1865 gave British statutes paramount force over all colonial statutes; as such, any colonial statutes that were “repugnant to” a British statute automatically became void to the extent of its repugnancy. However, section 2 of the Statute of Westminster repealed the Colonial Laws Validity Act and thus gave the self-governing Dominions the power to repeal or amend any Imperial statute that applied as part of their laws. Section 4 of the Statute of Westminster stated that the British Parliament would then only legislate for a Dominion at its request and with its consent. Some scholars, like Andrew Heard and Arthur Berriedale Keith, have interpreted section 4 as a mere “self-denying ordinance,” such that the Westminster Parliament could have continued to legislate for the Dominions even without their request and consent. Strictly speaking, this is true. However, the Dominion Parliament could then simply invoke section 2 of the Statute of Westminster and repeal such a law through whichthe British Parliament claimed the authority to apply to the Dominions outside of the procedure under section 4. This is why the Statute of Westminster did in fact grant the Dominions independence.

Lapointe explained: “Under the Statute of Westminster, any dominion may re-enact, repeal, or amend any statute already applying to it.”[1] As such, he introduced a bill to amend the Foreign Enlistment Act, a British statute that applied to Canada as part of its law, which the Parliament of Canada could then amend by virtue of the Statute of Westminster. Lapointe also deemed the Parliament of Canada to have accepted the principle of his bill, because the British statute had already become part of Canadian law as well. 

Charles Cahan, a Conservative MP and former Minister of the Crown under the Bennett government, agreed with Lapointe’s interpretation. In fact, Cahan went further and added with great enthusiasm that he and Conservative Opposition Leader R. B. Bennett embraced “the purpose and intent of the bill to take additional measures to exercise the rights of nationality and sovereignty which we believe are now inherent in the Parliament of Canada.”[2] King, Lapointe, Bennett, and Cahan would probably all look on what the Harper government did in 2013 with shame and incredulity, because today’s government has denied several decades of history and precedent into to avoid “opening” the Constitution. This is what the Government’s supporters now call a “practical” approach — with the clear implication that Lagassé, Toffoli, and I are mere woolly-browed academics who simply cannot grasp the complexities of modern government.

Cahan also noted that in his practice as a lawyer, he “was astonished to find that the judges presiding in the courts had no idea that any such acts [of the British Parliament] were in existence extending to and applicable to Canada.”[3] Sadly, many lawyers and judges today would not cease to astonish Cahan with their ignorance of this subject, mainly because most law schools offer only a superficial overview of Crown law in this post-Charter era.

Lapointe and Cahan accurately described the constitutional position as of 1937: the Statute of Westminster had placed the British acts that applied as part of Canadian law under “the legislative jurisdiction of the Parliament of Canada.”[4] While the Parliament of Canada alone could have legislated on this matters between 1931 and 1982, it no longer possesses this authority. Those statutes relating to “the office of the Queen” which then fell within the exclusive jurisdiction of the federal Parliament and are now subject to the Constitution Act, 1982. In effect, the Government of Canada wasted the easy opportunity to consolidate Canada’s laws relating to the Crown within those 50 years.

Cahan once requested (presumably when he served in the Cabinet) “a return from the Department of External Affairs showing the existing statutes of the parliament of the United Kingdom which extend to this dominion.”[5] He continued, “From my personal research, I have tabulated scores of such statutes which then and still apply to Canada, although under the act of 1867 they are now within the legislative jurisdiction of the parliament of Canada.” Lapointe replied, “I have a list of 150” British statutes that apply to Canada as part of the laws of Canada.[6] Cahan suggested that the Departments of Justice and External Affairs compile an exhaustive list of all British statutes that “extend to and are applicable to Canada,” publish that list, and recommend which acts be repealed and which be retained.[7]

Unfortunately, the King Government did not aggressively pursue that policy. While J.E. Read, a government lawyer in the Department of External Affairs, did produce such a list in 1943, neither King nor St. Laurent introduced a bill to rationalize the Imperial laws that Canada had inherited. The Trudeau government also neglected the issue when it patriated the British North America Acts in 1982.

1943: Read Consolidates Lapointe’s List of British Statutes That Apply to Canada As Part of the Laws of Canada

Maurice Ollivier served as a law clerk in the House of Commons in the mid-20th century and wrote three books on Canada’s transition from self-governing colony to independent, sovereign state. In Problems of Canadian Sovereignty, he included an appendix of “Enactments of the Parliament of Great Britain Which By Their Express Terms or By Necessary Implication Apply to the Dominion of Canada.”[8] The footnote indicates that Mr. J.E. Read, a government lawyer in the Department of External Affairs, compiled this “tentative list” and updated it to 1943. This may be the same list to which Lapointe alluded in 1937.

This list includes several British statues governing succession to the throne that apply as part of the laws of Canada, such as the Bill of Rights, 1689, the Act of Settlement, 1701, the Royal Marriages Act, 1774, as well as the various Crown Private Estates Acts and Demise of the Crown Acts. Crucially, His Majesty’s Declaration of Abdication Act, 1936 also forms part of Canadian law because the Government of Canada requested and consented that the British Parliament extend it to Canada pursuant to section 4 of the Statute of Westminster.

In 1938, Canadian constitutional scholar W.P.M. Kennedy defined the Constitution of Canada as a hybrid amalgam of codified and uncodified elements:

The unwritten constitution includes all the great landmarks in British history in so far as they are working principles – Magna Carta, the Petition of Right, the Bill of Rights, the Habeus Corpus Act, the Act of Settlement – as well as the generally recognized conventions and usages. The written constitution is found in a series of Acts known and quoted as the British North America Acts, 1867-1915.[9]

The laws and principles governing the succession to the Crown of Canada certainly fall under the category of “working principles”, and the Bill of Rights, 1689 and the Act of Settlement, 1701 both deal with succession; Kennedy is arguing that Canada has received these British statutes, and thus the royal succession itself, into its law. Kennedy thus corroborates Read’s list with respect to succession to the Crown.

Canada has clearly always had laws on succession, contrary to the Government of Canada’s claims in 2013. British statutes form part of Canadian law and the Constitution of Canada

1981: Jean Chretien and Barry L. Strayer Explain that Section 52(2) Incorporates Non-Enumerated Statutes

The primary sources show that in 1937, the Government of Canada believed that succession formed part of Canadian law, just as in 2013, the Governments of Australia and New Zealand understand that succession forms part of their countries’ respective bodies of law. The Government of Canada maintained that position in 1947-1948 and 1952-1953 after enacting alterations to the Royal Style and Titles. But for whatever reason, the Government of Canada never affirmed its long-held position in 1982 by adopting an Imperial Laws Application Act to replace the Colonial Laws Validity Act, as Australia and New Zealand had done in the 20th century. Barry L. Strayer, a former judge and Assistant Deputy Minister of Justice, recently wrote an autobiography on his involvement in patriating the constitution in the 1960s, 1970s, and 1980s. Perhaps Canada never passed equivalent legislation because section 52(2) of the Constitution Act, 1982 “maintain[ed] the continuity of our system” by “reaffirming the constitutional supremacy principle” that before 1982 resided in section 7(1) of the Statute of Westminster and section 2 of the Colonial Laws Validity Act.[10] Strayer explained that section 2 of the Colonial Laws Validity Act, 1865 (a British statute) ensured that an Imperial law (passed at Westminster) would supersede a colonial law to the extent that they conflicted with one another. Until 1982, the British North America Acts served as Canada’s written constitution and existed as Imperial laws. Section 7(1) of the Statute of Westminster “saved” the British North America Acts and made them supreme over all federal and provincial Canadian statutes. Since Canada repealed section 4 and section 7(1) of the Statute of Westminster in 1982, and then made that amended act part of Canada’s constitution, the Constitution Act, 1982 needed to ensure the continuity of the principle of constitutional supremacy through section 52(2). In other words, section 52(2) of the Constitution Act, 1982 should therefore guarantee that the British statutes that applied to Canada as part of the laws of Canada before 1982 continued to do so after 1982. The Patriation of the Constitution did not alter their status. As such, section 52(2) does not limit itself to an exhaustive definition of the Constitution of Canada; instead, it declares that the Constitution “includes” the statutes in the schedule – but it is not limited only to those statutes. In Canadian law and legislative drafting, “includes” means “including but not limited to”.

This means that if we can demonstrate that if the Government of Canada regarded certain British statutes as part of Canadian law before 1982, it should continue to regard those statutes as part of the Constitution.  In fact, Assistant Attorney General Strayer and Attorney General Jean Chretien confirmed this interpretation before the Special Joint Committee on the Constitution in 1982! One of the Conservative MPs on the committee, Mr. John Munro, asked Chretien and Strayer about “certain omissions in Schedule I” of the Constitution Act, 1982.[11] Munro based his question on Maurice Ollivier’s other book, British North America Acts and Selected Statutes, 1867-1962, and the heading “Federal Statutes of Constitutional Significance.”[12] Under that category, Ollivier placed the Succession to the Throne Act, 1937, the Seals Act, the Governor General’s Act, and various other statutes – most of which the Schedule to the Constitution Act, 1982 now lists. But for whatever reason, the Department of Justice opted to exclude some of these statutes of constitutional character from the Schedule. Munro criticized these “selective omissions” and argued that the Schedule should include the Succession to the Throne Act, 1937, The Demise of the Crown Act, 1901, the Seals Act, the Governor General’s Act, and the Royal Style and Titles Act, 1953. Chretien referred to the Supremacy Clause, section 52(2): “The Constitution of Canada includes (a) the Canada Act, 1982, including this Act; (b) the Acts and orders referred to the schedule; and (c) any amendment to any Act or ordered referred to in paragraph (a) or (b).” Chretien also replied that the Succession to the Throne Act, 1937 would form part of the Constitution of Canada under section 52(2).

When you use the word ‘includes,’ and the way that ‘c’ is drafted, it means that if ever there is another thing related to the Canadian constitution as part of it, should have been there, or might have been there, it is covered. So we do not have to renumerate [sic] the ones that you are mentioning.[13]  

Munro then asked whether the Department of Justice listed only some of Ollivier’s selected statutes because the Government intended to entrench only those acts enumerated in the schedule, and subject them to one of the amending formulas under Part V, and thus leave the omitted acts subject to the authority of the Parliament of Canada alone. Strayer explained that the Department of Justice did not take that view.

[…] that is certainly not the intention, nor is it, I think, the effect of the schedule the way it is.

The purpose was to identify the main instruments of the Constitution of Canada, but, as the Minister [Chretien] pointed out, Clause 52(2) is not an exhaustive definition of the Constitution of Canada so that while we have certain things listed in the schedule which are clearly part of the constitution, that does not mean that there are not other things which are part of the constitution. […] [The schedule] is not an exhaustive list.[14]

Chretien agreed with Strayer’s explanation, declaring: “You cannot get a better answer than that one.” Strayer then argued that the Letters Patent Constituting the Office of Governor General of 1947 form part of the Constitution of Canada under section 52(2) – even though this prerogative instrument does not appear in the schedule. Strayer reiterated his earlier argument: “The point of Clause 52(2) is that it does not purport to list exhaustively the whole Constitution.”[15]

Barry Strayer – then an Assistant Deputy Minister in the Department of Justice and one of the main architects of the Constitution Act, 1982 – argued cogently and precisely that the Supremacy Clause “includes” various statutes that do not appear in the schedule, which “does not purport to list exhaustively the whole of the constitution.” Strayer also explained in his autobiography Canada’s Constitution Revolution that he designed section 52(2) to replace the Colonial Laws Validity Act, 1865 and section 7(1) of the Statute of Westminster, 1931, which “saved” the British North America Acts and left them within the jurisdiction of the British Parliament until Canada devised an indigenous amending formula. Logically, section 52(2), the Supremacy Clause, must now incorporate several British statutes into the Constitution of Canada because it replaced the Colonial Laws Validity Act, through which the British Parliament used to exercise its sovereignty over the Crown colonies to ensure that several British statutes automatically applied to Canada as part of the laws of Canada by necessary implication or their express terms. Attorney General Lapointe confirmed this interpretation as early as 1937.

Robert Macgregor Dawson – the most underappreciated Canadian constitutional scholar of the 20th century – offers a potential explanation why the Department of Justice jettisoned its own sound legal interpretations of the mid-20th century: the Government’s lawyers simply forgot about succession, and the Department lost its expertise on the subject through attrition and retirement. Dawson explains, “the Canadian constitution also includes a number of British statutes expressly referring to Canada or to the empire.”[16] Dawson corroborates Prime Minister King and Attorney General Lapointe; he also argues that His Majesty’s Declaration of Abdication Act, 1936 applies to Canada as part of the laws of Canada because the King Government requested and consented that the British Parliament apply it to Canada pursuant to section 4 of the Statute of Westminster, 1931.

The surviving British statutes of major constitutional importance are few indeed. They are, as of 1970, the British North America Act and its amendments […] and the Statute of Westminster together with any acts which may have been passed at the express request of the Canadian government. The Declaration of Abdication Act, for example, is in the last group.[17]

Dawson predicted that the Government of Canada would resolve the status of all the British statutes that apply to Canada as part of the law of Canada “when the British North America Act is ‘patriated’ to Canada.”[18] Unfortunately, the Department of Justice in 1982 focused on entrenching the Charter of Rights and Freedoms into the Constitution and neglected this equally important issue – even though the Government should have built upon the work of eminent lawyers like Ernest Lapointe and J.R. Read. Barry Strayer argues that the Supremacy Clause resolved this issue; in reality, however, the Department of Justice’s Great Neglect of 1981-1982 now means that the courts would have to adjudicate on whether section 52(2) “includes” x or y statute and incorporates it into the Constitution. The Government of Canada should have drawn up an “Imperial Laws Application Act” and included it in the schedule of the Constitution Act, 1982.

Conclusion

Despite all the primary-source evidence that Lagassé and I have gathered on succession to the Crown and Royal Style and Titles and despite the secondary sources on the Crown as corporation that we have put forward, I can now only come to the depressing conclusion that nothing that we uncover and argue will sway the Government of Canada and the scholars who support the lawyers in the Department of Justice. Even the Government of Canada of 1937 and 1943 cannot convince the Government of Canada of 2013 to see reason. The Harper Government has morphed this pure legal-constitutional issue into a political question – and in politics, the Orwellian tactics of assertion and mendacious rhetoric count for more than do facts and clearly historical precedents.

I have provided several pieces of evidence that disprove the Department of Justice’s assertion – yet these facts have not dissuaded the Government’s greatest supporters. In fact, Canada does possess its own laws on succession: Canada has not only received British statute pertaining to the succession like the Bill of Rights and Act of Settlement, but in 1936, the King Government invoked section 4 of the Statute of Westminster and requested and consented that the Westminster Parliament legislate for Canada. Consequently, His Majesty’s Declaration of Abdication Act, 1936 applies as part of Canadian law – since that is what “to legislate on behalf of” means. Furthermore, the Parliament of Canada even assented retroactively to this British statute in March 1937 through the Succession to the Throne Act, 1937, which also incorporated the His Majesty’s Declaration of Abdication Act, 1936 into Canadian law a second time by listing it as a statutory schedule. The Commons Debates from 1937 clearly show that Prime Minister Mackenzie King and Justice Minister Ernest Lapointe made the necessary decisions to ensure that the Abdication Acts applied to Canada as part of Canadian law, because they sought to affirm the “equality of status” that the Statute of Westminster had codified in 1931. (In “The Government of Canada’s Position on Succession in 1937,” I laid out all these arguments in more detail). In 1937, Lapointe explained to the Commons that various British statutes form part of the laws of Canada, and that the Parliament of Canada could now amend, repeal, or re-enact of such British statute by virtue of section 2 of the Statute of Westminster, which repealed the Colonial Laws Validity Act, 1865. Lapointe also alluded to the Government of Canada’s compilation of the various British statutes that form part of Canadian law. In 1943, J.E. Read, a government lawyer working in the Department of External Affairs, forwarded his list of British statutes that apply as part of Canadian law by necessary implication or by express enactment to Maurice Ollivier, a law clerk at the House of Commons. Finally, in 1981, Chretien and Strayer explained that the Supremacy Clause would cover the Succession to the Throne Act, 1937 and the Letters Patent Constituting the Office of Governor General and Commander-in-Chief of 1947. All the historical evidence shows that the Government of Canada believed – at least between 1937 and 1981 – that succession forms part of Canadian law because Canada has received the Bill of Rights, 1689 and the Act of Settlement, 1701 and because the British parliament passed His Majesty’s Declaration of Abdication Act, 1936 for the United Kingdom, Australia, New Zealand, and Canada.

I doubt that anyone will pay this evidence any attention; the proponents of the Government of Canada’s position of 2013 may remark that I have “nicely lain out” my argument or acknowledge that these primary sources are “interesting” – but they would probably also dismiss them as “irrelevant” (without properly explaining why, of course!). I, however, will continue to adhere to the Government of Canada’s position on succession of 1936-1981. Alternatively, they will praise the Government’s approach as “practical” – a choice of words that betrays their fear of facing the consequences if Lagassé and I are right that succession to the Crown falls under section 41(a) of the Constitution Act, 1982 because it pertains to “the office of the Queen,” since the Crown is a corporation sole.

Thankfully, Canada will have several decades to bring its laws on succession in line with those of the United Kingdom, Australia, and New Zealand. The succession to the British Crown now operates on equal primogeniture, while the succession to Canada’s Crown has thus far retained the male-preference cognatic primogeniture that gives preference to younger sons over older daughters. However, the distinct British and Canadian laws on succession will not come into conflict for at least three generations: as Prime Minister Harper remarked when a reporter first asked him about this subject during the federal election of 2011, the heir to the throne – the Prince of Wales – is a man, and the next heir to the throne – the Duke of Cambridge – is a man. In July 2013, the Duke and Duchess of Cambridge were safely delivered of a son, which means that the third heir to the throne – Prince George – will also be a man. Given that Canada can “open” the constitution at the opportune moment in order to alter the law on succession at any point over the next few decades, the court in Quebec currently reviewing this case should not impose any undue constraints on itself, consider all the available historical evidence, and treat this issue with the dignity and diligence that it deserves and so desperately needs.

Similar Posts:

[1] Ernest Lapointe in [“Foreign Enlistment,”] in Canada, Parliament of Canada, Commons Debates, 18th Parliament, 2nd Session, 18 March 1937: 1939.
[2] Charles Cahan in [“Foreign Enlistment,”] in Canada, Parliament of Canada, Commons Debates, 18th Parliament, 2nd Session, 18 March 1937: 1940.
[3] Charles Cahan in [“Foreign Enlistment,”] in Canada, Parliament of Canada, Commons Debates, 18th Parliament, 2nd Session, 18 March 1937: 1941.
[4] Charles Cahan in [“Foreign Enlistment,”] in Canada, Parliament of Canada, Commons Debates, 18th Parliament, 2nd Session, 18 March 1937: 1940.
[5] Charles Cahan in [“Foreign Enlistment,”] in Canada, Parliament of Canada, Commons Debates, 18th Parliament, 2nd Session, 18 March 1937: 1940.
[6] Ernest Lapointe in [“Foreign Enlistment,”] in Canada, Parliament of Canada, Commons Debates, 18th Parliament, 2nd Session, 18 March 1937: 1941.
[7] Charles Cahan in [“Foreign Enlistment,”] in Canada, Parliament of Canada, Commons Debates, 18th Parliament, 2nd Session, 18 March 1937: 1941.
[8] Maurice Ollivier, Problems of Canadian Sovereignty from the British North America Act, 1867 to the Statute of Westminster, 1931 (Toronto: Canada Law Book Company, 1945), 465-469.
[9] W.P.M. Kennedy, The Constitution of Canada, 1534-1937: An Introduction to Its Development, Law, and Custom. 2nd Ed. (Toronto: Oxford University Press, 1938), 378.
[10] Barry L. Strayer, Canada’s Constitutional Revolution (Edmonton: University of Alberta Press, 2013), 163-164.
[11] John Munro. In Canada, Parliament of Canada, Minutes of the Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parliament (1st Session), Thursday, 5 February 1981, 54: 105.
[12] Maurice Ollivier, British North America Acts and Selected Statutes, 1867-1962 (Ottawa: Crown Copyright, 1962).
[13] Jean Chretien. In Canada, Parliament of Canada, Minutes of the Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parliament (1st Session), Thursday, 5 February 1981, 54: 106.
[14] Barry L. Strayer. In Canada, Parliament of Canada, Minutes of the Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parliament (1st Session), Thursday, 5 February 1981, 54: 106.
[15] Barry L. Strayer. In Canada, Parliament of Canada, Minutes of the Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parliament (1st Session), Thursday, 5 February 1981, 54: 107.
[16] Robert Macgregor Dawson (Norman Ward), The Government of Canada. 5th Ed (Toronto: University of Toronto Press, 1970), 62.
[17] Robert Macgregor Dawson (Norman Ward), The Government of Canada. 5th Ed (Toronto: University of Toronto Press, 1970), 63.
[18] Robert Macgregor Dawson (Norman Ward), The Government of Canada. 5th Ed (Toronto: University of Toronto Press, 1970), 62.

Posted in Corporation Sole, Crown (Powers and Office), Succession (Sovereign) | 3 Comments

Premier Wynne Adopts Prime Minister Harper’s Tactics on Early Dissolution: Will the Media and Scholars Now Vilify Her Accordingly?

Posted on 2013/09/10 by J.W.J. Bowden

Harper Showed the Futility and Uselessness of Canadian-Style Fixed-Election Laws in 2008

As the CBC reported in late August 2008, Prime Minister Harper described the 39th Parliament as “dysfunctional”; in other words, he had judged that his minority government would soon lose control of the legislative agenda and, in effect, the confidence of the Commons. Harper then met individually with New Democratic leader Jack Layton and Bloc Quebecois leader Gilles Duceppe, but Liberal leader Stephane Dion opted not to meet him. Harper shrewdly cited these meetings as evidence that the 39th Parliament would have become too dysfunctional in its scheduled fall sitting to pass any government bills. On 26 August 2008, Harper remarked:

There’s a growing number of parliamentary legislation that is not moving. If you look at most of the legislation that’s still left from the last session, we see little prospect of most of that moving forward.

Harper also told reporters:

We [Dion and I] don’t need to wait three weeks for a meeting to occur. […] As I have already said, this shows a fundamental difference between the government and the opposition parties, and particularly Mr. Dion, who has proposed an economic agenda [the carbon-tax plan] which is completely the opposition of the government’s program.

Shortly thereafter, Harper advised Governor General Michaelle Jean to dissolve the 39th Parliament on 7 September 2008 and to call an election for 14 October 2008. Prime Minister Harper met with a howling zoo of critical journalists and pundits who derided him for having “broken his own law” on fixed elections.

In fact, Prime Minister Harper did not such thing. All the federal and provincial fixed-elections laws deliberately keep intact the Crown’s power of dissolution precisely in order to avoid the prospect of amending the Constitution Acts. Ontario’s law does so through the phrase, “Nothing in this section affects the powers of the Lieutenant Governor, including the power to dissolve the Legislature, by proclamation in Her Majesty’s name, when the Lieutenant Governor sees fit.”Under our system of Responsible Government, Ministers of the Crown take responsibility for all acts of the Crown, and the Lieutenant Governor thus acts on and in accordance with ministerial advice (save for exceptional circumstances, which would not apply to this case). Consequently, the federal Prime Minister and provincial Premiers do in fact possess the authority to advise the Governor General or Lieutenant Governors to dissolve and call a general election. The government does not first have to lose the confidence of the elected assembly. Only a constitutional amendment under s.41(a) that modifies or eliminates the Crown’s power of dissolution and transfers this authority to parliament could implement true fixed elections, as the British Fixed-Term Parliaments Act of 2011 has done. That’s why Canadian governments deliberately avoided the prospect of “opening the constitution” and instead introduced these decorative and redundant style of fixed elections.

Wynne Now Faces the Useless Fixed-Election Law Under Similar Circumstances

The 2nd session of the 40th Legislature of Ontario resumed on 9 September 2013, and Premier Wynne faces almost identical circumstances: she leads a single-party minority government in a hostile but election-averse minority parliament, and the Legislature of Ontario also followed the trend by passing a useless Canadian-style fixed-elections law. Wynne also made a remarkably similar statement. Will Wynne face the same howling zoo of criticism from the media if she exercises his constitutional right as Premier to advise and receive an early dissolution without first having officially lost the confidence of the Assembly? I supsect that she would not.

Premier Wynne warned the Conservative and New Democratic opposition that they will face an early dissolution if her minority government loses control of the legislative assembly’s agenda. Wynne crafted a deliberately ambiguous threat toward this tenuous minority parliament; adopting both of Prime Minister Harper’s tactics of 2008 almost exactly, Wynne pledged to meet with Conservative leader Tim Hudak and New Democratic leader Andrea Horwath, but placed in the responsibility of an early election squarely on the opposition parties. The Premier told reporters:

There’s not an indefinite option to continue to wrangle on every single piece of legislation. […]

I want to be clear with people that I’m going to meet with the leaders of the opposition and I’m going to suggest to them that there’s some things we can work together on. […]

If there is absolutely no possibility for collaboration, then the legislature will grind to a halt, and the Opposition will have made clear that they want a general election. […] The practical reality is if the House cannot function, and if we can’t see a way forward, then the Opposition will have to explain to people why they think an election is the better option.

Crucially, the Premier did not specify whether she would advise Lieutenant Governor Onley to dissolve the legislature unprompted, as Prime Minister Harper did in 2008, or whether she would advise dissolution after the assembly has clearly withdrawn its confidence from the government, as Harper did in 2011. Premier Wynne can choose either option. In particular, Wynne would be well within her rights and responsibilities to as Premier to conclude that since her government has lost control of the legislative agenda and can no longer pass its legislation, that only a direct appeal to the electorate through early elections could break the deadlock and dysfunction of the 40th Legislature. The provincial legislature’s bizarre rules on motions of non-confidence give the Premier more of an incentive to pre-empt the assembly and advise dissolution. Unlike at the federal level, the opposition can only introduce and vote on a motion of non-confidence against the government with the government’s consent.

Inconsistent Reaction from Scholars and the Media

If the most recent media coverage offers any long-term indication, Wynne – unlike Harper – would not have to contend with the hostile criticism of scholars and journalists if she chooses to advise an early dissolution before her government loses the confidence of the Assembly. The CBC, the National Post, the Globe and Mail, and the Toronto Star have thus far all taken reasonable positions on this issue; curiously, however, none have even mentioned the fixed-elections law of Ontario. In this case, the media should mention it not to criticise the Premier, but merely to highlight the absurdity of Canadian-style fixed elections, all of which deliberately preserve the Crown’s power to dissolve and thus do not constrain the First Ministers. The National Post later reported that Wynne has met with Hudak, but that Horwath has declined such a meeting. Wynne has followed Harper’s method; she would now only have to advise the Lieutenant Governor to dissolve the legislature, unprompted, in order to hold a snap election.

Some journalists might counter that since Harper campaigned on fixed elections in 2006, they regard his early dissolution of 2008 as hypocritical and therefore newsworthy. But this is a political argument, not a legal-constitutional one. And surely the uselessness of the Canadian model of fixed-election laws – not Harper’s apparent hypocrisy – should have defined the debate.

Scholars and journalists who claim to oppose the powers of the Crown on prorogation and dissolution do so consistently, irrespective of whether a Conservative or Liberal first minister advises and takes responsibility for those acts of the Crown. Premier Wynne has the authority to advise an early dissolution in 2013, even if her government does not first lose the confidence of the assembly, precisely because Ontario’s fixed-election law preserves the Crown’s power of dissolution, which the Lieutenant Governor exercises on the advice of the Premier. If Wynne decides to rely on that option in 2013 as Harper did in 2008, her early dissolution would only underscore that the current Canadian model of fixed-election laws does nothing substantive and attempted to solve a problem that never existed. Only a constitutional amendment could implement true fixed-term parliaments. Perhaps that’s a discussion worth having.

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Posted in Confidence Convention, Constitutional Conventions, Fixed-Date Elections, Reform | 3 Comments