The Components of Canada’s Written Constitution

Posted on 2011/08/11 by J.W.J. Bowden

In an earlier post on defining Canada’s constitution and its various written and unwritten components, I classified the types of written components and listed some of them. Thankfully, the Faculty of Law of the University of Ottawa provides an excellent explanation of the British and Canadian statutes and orders-in-council that make up the constitution, as well as a comprehensive list. The Supreme Court of Canada considers Magna Carta and the English Bill of Rights parts of Canada’s constitution, so logically the Royal Proclamation of 1763 and the Quebec Act, 1774 also enjoy constitutional status.

I recommend this webpage for identifying the written constitution.

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Posted in Constitution (Written) | 4 Comments

The “Republic of Canada, Est. 1837”: Distortion of History and of Responsible Government

Posted on 2011/08/11 by J.W.J. Bowden

The Institute for Liberal Studies sells t-shirts emblazened with the flag of the short-lived Republic of Canada and the text “Republic of Canada est. 1837”, accompanied by the following description:

The short-lived Republic of Canada is a little-known chapter in Canadian history. From 1837 to 1838 William Lyon Mackenzie and a small group of supporters occupied Navy Island in the Niagara River. The rebels were agitating for a government that was both responsible and representative. Although their struggle was not successful, eventually these ideals came to be represented in the government of Upper Canada and, later, the country of Canada we now know. Liberty was such an important value to this little group that they put the word on the flag, making this short, but important, episode of Canadian history something worth remembering [emphasis added].

Republic of Canada “Since” 1837? That doesn’t make sense!

Allow me to state the most pedantic arguments first: how can a republic that only lasted for at most a few months lend itself to the statement “Republic of Canada established 1837″? That wording implies that the Republic of Canada still exists, the equivalent of “since 1837”, indicating a continuous existence from that time in the past to the present. Perhaps “Republic of Canada in 1837″ would work, but even that statement entirely obscures the true historical significance of the Rebellions of 1837. I therefore object strongly to the historical interpretations contained in this statement, and not merely the republicanism. Apparently, the two stars represent Upper Canada and Lower Canada, though the Institute for Liberal Studies decided to omit all the history associated with Louis Joseph Papineau, perhaps because his rebellion also incorporated a liberal anti-clericalism that didn’t apply to Protestant Upper Canada. The Institute for Liberal Studies chose, not surprisingly, to fixate on the “Liberty” contained in the flag of the failed republic and has thus overlooked and completely misinterpreted the true significance of the Rebellions of 1837 in both Upper Canada and Lower Canada. If the rebels in Upper Canada indeed sought “representative and responsible government”, then they did in fact succeed, because the Rebellions of 1837 precipitated the Durham Report and the establishment of responsible government in all the British North American colonies by 1848. I am thankful that these rebellions caused the British to speed up devolution of self-government to the colonies, but ultimately, Canada achieved responsible and representative government under the Crown.

Finlay and Sprague in The Structure of Canadian History wrote about another faction of reformers in the 1830s, led by Egerton Ryerson and Robert Baldwin, who shared Mackenzie’s desire to enact democratic reforms but opposed his republicanism. Robert Baldwin went on to lead some governments with Lafontaine in the new United Province of Canada, while Mackenzie fled to the American republic. As it turns out, the Baldwin reformers who sought change within the constitutional monarchy enjoyed more popular support among the Upper Canadians. So for whose “liberty” were the republicans fighting? They represented a small minority of Upper Canadians. Finlay and Sprague say that

fewer than 500 persons joined Mackenzie in his march down Yonge Street on 5 December. […] Indeed, the biggest problem for the government was feeding and lodging the many thousands [of colonial militia men] who rushed to Toronto to take part on the side of the Crown.

The flag of the “Republic of Canada”

I wouldn’t expect the Institute for Liberal Studies to go into great detail on the other Upper Canadian politics, but I would have preferred that it put the Rebellions of 1837 into their correct historical context: they acted as a catalyst for necessary political change and reforms so that allowed British North Americans to enjoy the same rights as their cousins in the United Kingdom. So we should therefore consider them useful in that sense, and successful in having precipitated a series of events that ultimately led to the securing of our constitutional rights as Canadians. But writing “Liberty” on the flag and advocating for the violent overthrow of the Crown through armed rebellion in favour of a republic do not automatically secure liberty.

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Posted in History of British North America, Monarchism v Republicanism, Origins | 12 Comments

Senate Reform and Responsible Government

Posted on 2011/08/09 by J.W.J. Bowden

The discussion and debate over the reform of the Senate of Canada into an elected chamber has dominated the opinion sections of Canadian newspapers and the academic journals of Canadian political science since the late 1970s when the Trudeau government reinvigorated interest in the patriation and reform of the written constitution, which ultimately culminated in the Constitution Act, 1982. Trudeau’s final product conspicuously omitted the reform of the upper house, and ever since various political parties, academics, and think tanks have debated options for reform. They typically justify their positions based on theories of democracy (that an unelected legislative chamber in the 21st century violates all democratic principles) and federalism (that a federation, particularly one as vast and diverse as Canada, needs a chamber that better represents the interests of the provinces). I have supported the reform of the Senate into an elected chamber for a good many years and still do. Indeed, I wrote several undergraduate papers on the subject and studied it obsessively from 2007 to 2010 – but never in the course of my research did I come across another equally, if not more important, normative principle with respect to reform of the Senate: parliamentarism. My papers included various summaries of past institutional proposals for reform, which I would like to discuss out of academic interest, but in a separate entry on the history of Senate reform in Canada. Some scholars opposed to the reform of the Senate into an elected body have argued in favour of the status quo based upon these the parliamentarist’s considerations; however, I have yet to encounter a scholar in favour of reform who has adequately responded to, let alone acknowledged, the issue of the Senate’s role as one of two houses of parliament and one of three components of the tri-partite Crown-in-Parliament, which consists of the Crown, the Senate, and the House of Commons. In short, we must understand the Senate as part of its larger whole, the Crown-in-Parliament, and parliamentarism, the evolution and history of the institution of parliament – not as an separate chambered isolated from the House of Commons.

Senate of Canada

I underwent a significant intellectual transformation in 2010, which started in the summer during the Royal Tour of 2010 and culminated during my research for an essay on the prorogation-coalition crisis of 2008 and the subsequent article that Nick MacDonald and I co-authored on the same subject. I used to be a republican, but I become a constitutional monarchist after studying in depth the Crown and its reserve powers and Parliament because I based my republicanism on a profound ignorance of constitutional monarchy, partially due to the American influence accumulated over 5 years of living there and observing the American system of government and his purely written constitution. I’m not arguing that all republicans are ignorant, merely that I gravitated toward republicanism due to a fundamentalism misunderstanding of constitutional monarchy. During this transformation, I also modified my views on Senate reform; I used to wholeheartedly endorse the Triple-E Senate model (equal provincial representation, effective counterweight to the House, and election of Senators) that the CanWest Foundation, the Government of Alberta, and the Reform Party advocated. I still support reform of the Senate into an elected body, but I’ve become skeptical about the other two Es. Now I seek to respond vigorously to the parliamentarist’s argument that the opposing academic camp on this issue has long argued. So far, no scholar in favour of reform has come up with a cogent counter-argument. (Let me know if I’ve overlooked someone’s work!)

Senate of Australia

Namely, I seek to answer this question: how can we reconcile an elected Senate with the principle of responsible government? After all, responsible government means that “the government derives its legal authority to govern so long as it commands the confidence of a majority of the House of Commons” – not a majority of the House and Senate. And crucial pieces of legislation like the budget are universally recognized as confidence measures. But if Senators were elected, they would feel emboldened to oppose the House more forcefully, even to the point of refusing to pass supply, but that refusal would be anti-constitutional and violate the principle of responsible government. This concern is not merely a theoretical abstraction. The Constitutional Crisis of 1975 in Australia, known as “The Dismissal” because the Governor-General dismissed the Labor Prime Minster and installed the Liberal leader in his place, started in the Senate because the senatorial Liberal-National majority refused to pass the budget of a majority Labor government that commanded the confidence of a majority of the House. (I’ll also write about this horrific incident in more detail later on in conjunction with the King-Byng Affair). An elected Senate of Canada absolutely must not be and can never become a confidence chamber, otherwise our Westminster system — premised on providing a balance between liberty and efficiency — would take on the characteristics of American congressional deadlock and irresponsible government.

Australian scholar Charles Sampford explained in “‘Recognise and Declare’: An Australian Experiment in Codifying Constitutional Conventions” (1987) why the Senate of Australia cannot logically function as a confidence chamber in the Westminster system, despite its having been an elected chamber since the creation of the Australian federal state in 1901. “The [Liberal-National] Opposition argued that federalism justified a strong Upper House with the same power over supply as the House of Representatives despite the fact that federalism is a principle about the division of powers not who exercises them at the federal level and, despite the fact that the US Senate, on which the Australian institution was modelled, has more formal powers but no such power to use supply to force a change of government.” In other words, the Senate of the United States can exercise significant power in rejecting legislation passed by the House of Representatives precisely because its rejection of House legislation does not threaten the survival of the government, which is itself divided between the White House, the House of Representatives, and the Senate. However, if the Senate became a confidence chamber in a Westminster parliament, it would invariably destroy the principle of responsible government and render Westminster worse than the irresponsible government of the American separation of powers and totally dysfunctional.

If the Senate of Canada were reformed into an elected body by amending the Constitution Act, 1867, that amendment would probably need to codify the constitutional conventions that govern the relationship between the House and the Senate in order to avoid constitutional crisis and enshrine responsible government as relating only to the House of Commons.

The Parliament of Australia's official explanation states that the government must depend upon the House of Representatives -- not both Houses.

The Parliament Act, 1911 and the Parliament Act, 1949 in the United Kingdom limited the formal powers of the House of Lords and formally granted the House of Commons legislative supremacy, and essentially relegated the role of the House of Lords to a chamber of “sober second thought”, as Canadians would say. The Lords recognize that as unelected officials, they must tread carefully. But no such legal limitation constrains the powers of Canadian senators, who enjoy all the same powers as their colleagues in the House, apart from the introduction of money bills because of an ancient English custom. Unfortunately, the conventional limitations on the Senate’s power do not always apply. In 1987-1988, a Liberal majority in the Senate refused passage of the Free Trade Agreement until Prime Minister Mulroney advised the governor general to dissolve the House of Commons and call and election. Therefore, the Senate inappropriately turned itself into a confidence chamber, just as the Senate of Australia did in 1975 when the Liberal majority refused to pass the supply of the Labor government in the House of Representatives, thus precipitating a significant constitutional crisis. Then in the next parliament, the Liberal majority in the Senate turned itself into a confidence chamber again by refusing to pass the Mulroney government’s GST bill. In order to avoid the necessity of requesting another dissolution, Mulroney resorted to the emergency provision and rather extraordinary measure contained in section 26 of the Constitution Act, 1867 that allows the Queen to appoint an additional 8 senators on the advice of the Prime Minister of Canada. There are two types of people in the world: those who understand what I’m talking about, and those who criticized Brian Mulroney for this particular decision. I view section 26 of the Constitution Act, 1867 as the Canadian equivalent to section 57 of the Commonwealth of Australia Act, 1901 that allows the Prime Minister of Australia to advise the Governor General to dissolve both Houses simultaneously in the event of prolonged deadlock. As Ironically, Professor Sampford relegated that gem of wisdom that I quoted above to a footnote in his paper, but it is a fundamental concept: deadlock between the two Houses in a Westminster system has profound consequences on the government and can precipitate unnecessary early dissolution, or even full-fledged constitutional crises.

As I stated at the beginning of veritable treatise, I still support the reform of the Senate into an elected body — provided that any such reform adequately takes into account the problem of upper chambers and responsible government in the Westminster system. The Commonwealth of Australia has functioned with an elected Senate since its inception in 1901 and encountered only one, albeit it very serious, problem. But one serious problem in 110 years does not invalidate the model, and thankfully since Australia already experienced this constitutional crisis, we could build an elected Senate here in Canada that could steer clear of those treacherous waters. The Parliament of Australia operates on the same tripartite Crown-in-Parliament as does the Parliament of Canada and shows overall that an elected upper house can work when it respects the principle of responsible government, that the government does not derive any authority to govern from the upper house.

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Posted in Senate Reform | 14 Comments

George III, Parliament, and the Loss of the American Colonies

Posted on 2011/08/09 by J.W.J. Bowden

I generally agree with and like the official website of the British monarchy, but like all official histories, it focuses too heavily on information and arguments favourable to the reputation of its source at the expense of other interpretations and viewpoints. I strongly disagree with some parts of the description of George III, particularly on the loss of the American colonies and this typical Tory characterization of the parliamentary Whigs of the 18th century.

The website of the British monarchy describes George III and his loss of the American colonies as such:

George III

“George’s direct responsibility for the loss of the colonies is not great. He opposed their bid for independence to the end, but he did not develop the policies (such as the Stamp Act of 1765 and the Townshend duties of 1767 on tea, paper and other products) which led to war in 1775-76 and which had the support of Parliament. These policies were largely due to the financial burdens of garrisoning and administering the vast expansion of territory brought under the British Crown in America, the costs of a series of wars with France and Spain in North America, and the loans given to the East India Company (then responsible for administering India). By the 1770s, and at a time when there was no income tax, the national debt required an annual revenue of £4 million to service it.”

This is true. However, we must take into consideration that at the time, the franchise applied only to white propertied Protestant men and that parliament did not necessarily represent a broad cross-section of public opinion toward the American colonies or the war. The Tories, led by Prime Minister Lord North, controlled parliament from 1770 to 1782 and introduced those policies that so enraged Whigs and the British Americans. The opposition Whigs (both the “old Whigs” like Edmund Burke and the more radical “new Whigs” like Charles Fox) generally opposed these policies.

The description continues:

The declaration of American independence on 4 July 1776, the end of the war with the surrender by British forces in 1782, and the defeat which the loss of the American colonies represented, could have threatened the Hanoverian throne.

The loss of the American colonies did threaten the Hanoverian throne. David Starkey’s documentary Monarchy shows that George III drafted his own letter of abdication after the loss in Yorktown in 1781 and agonized over the decision at length. He wrote:

His Majesty with much sorrow finds he can be of no further utility to his native country, which drives him to the painful step of quitting it forever. In consequence, His Majesty resigns the Crown of Great Britain to his son and lawful successor George, Prince of Wales, whose endeavours for the prosperity of the British Empire, he hopes will prove more successful.

In the end, of course, George III did not to abdicate and reigned until his death in 1820.

The following description from the website of the British Monarchy glosses over George III’s anti-constitutional reassertion of royal power at the expense of parliament and attributes his violations of the constitution to lack of aplomb and a disagreeable personality. This paragraph also over-simplifies the significant divisions between Tory and Whig. In addition, the Whigs were more than merely a “leading political grouping” – they represented a broad intellectual movement and the political manifestation of classical liberalism.

The first 25 years of George’s reign were politically controversial for reasons other than the conflict with America. The King was accused by some critics, particularly Whigs (a leading political grouping), of attempting to reassert royal authority in an unconstitutional manner. In fact, George took a conventional view of the constitution and the powers left to the Crown after the conflicts between Crown and Parliament in the 17th century. Although he was careful not to exceed his powers, George’s limited ability and lack of subtlety in dealing with the shifting alliances within the Tory and Whig political groupings in Parliament meant that he found it difficult to bring together ministries which could enjoy the support of the House of Commons.

Prime Minister Lord North: The Man Responsible for “Taxation Without Representation”

As a Whiggish classical liberal, I agree with the classical liberal Hobbesian-Lockean view that the Crown is subject to a social contract; my support of the Crown thus depends upon its fulfilling its constitutional duties properly and upholding its responsibility within that social contract. If the Crown ever abolished responsible government, then it would no longer secure liberty but revert to tyranny, and I would no longer support it. This portion of my argument and historical interpretation may offend some Tories, but in so doing, I hope that it will also clarify the crucial differences between these historical political parties. Historically, where the Tories supported the Crown on royalist principle (sometimes even as far as the Stuart view on the divine right of kings), Whigs supported the Crown out of political practicality; the Crown upholds liberty and the rule of law and maintains civil order when a constitution restrains the power of the King relative to Parliament. By the 1770s, Parliament and the Crown had denied the American colonists their constitutional rights as free-born Englishmen and the constitutional legacy of the Glorious Revolution and English Bill of Rights. Influenced by the constitutional settlement after 1688 and 18th century Whiggism, many of the colonists rebelled. Prominent Whigs such as Edmund Burke and Charles Fox supported the American colonists because they understood this principle. In contrast, the staunch Tory Lord North, who held office of Prime Minister from 1770 to 1782, vigorously defended George III and supported the legislation like the Stamp Act that so enraged the American colonists. Many American colonists chose to remain loyal, despite the Crown’s and Parliament’s failure to secure their liberty.

These fundamental philosophical conflicts show that the American Revolution was another English Civil War; where the civil war of the previous century saw the battle between Royalists and Parliamentarians, its equivalent in the 18th century involved Tories and Whigs – both within the American Colonies and between the American colonies and the United Kingdom.

In the same documentary, David Starkey said of Jefferson and the Declaration of Independence: “The Declaration embodies Jefferson’s belief in the Whig idea that all government depends upon a social contract freely entered into by the people.” Before drafting the Declaration, Thomas Jefferson wrote “A Summary View of the Rights of British America.” The fact that Thomas Jefferson defined the American colonists as “British Americans” lends credence to my argument of American Revolution as civil war and demonstrates that the familiar resolutely independent American identity did not fully develop until well into the 19th century.

Charles Fox and other English parliamentarian Whig supporters of the American colonists even took to the habit of wearing the “buff and blue” of Washington’s army in the House of Commons. Toward the end of the war in 1780, another prominent Whig named John Dunning moved a motion in the House of Commons that passed by a slim margin: “The influence of the Crown has increased, is increasing, and ought to be diminished.” So despite the assertions of the official website of the British monarchy, Parliament – the sovereign political body – concluded that George III had overstepped his bounds.

This next passage unintentionally provides evidence to support the Whig argument that George III did in fact usurp the British constitution through a reassertion of royal power.  In effect, George III dismissed his most capable prime minister, William Pitt the Younger, because the latter believed that Catholics should gain the right to vote and full political enfranchisement.

[George III’s] problem was solved first by the long-lasting ministry of Lord North (1770-82) and then, from 1783, by Pitt the Younger, whose ministry lasted until 1801. His political influence could be decisive. In 1801, he forced Pitt the Younger to resign when the two men disagreed about whether Roman Catholics should have full civil rights. George III, because of his coronation oath to maintain the rights and privileges of the Church of England, was against the proposed measure.

The website finishes by providing a link to a letter on the loss of the American colonies that George III wrote sometime in the 1780s. George III wrote:

This compartative view of our former territories in America is not stated with any idea of lessening the consequence of a future friendship and connection with them; on the contrary, it is to be hoped we shall reap more advantages from their trade as friends than ever we could derive from them as Colonies; for there is reason to suppose we actually gained more by them while in actual rebellion, and the common open connection cut off, than when they were in obedience to the Crown.

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Posted in History of British North America, Origins, Whigs v Tories | 9 Comments

Guidelines on the Caretaker Convention

Posted on 2011/08/04 by J.W.J. Bowden

Former Clerk of the Privy Council Mel Cappe wrote an introductory piece The Caretaker Convention in Canada arguing that the Privy Council Office should release its official guidelines on the caretaker convention that place limitations on the government’s authority during elections, and that the guidelines should be updated as needed. Mr. Cappe presented his report at a workshop hosted by the Asper Centre for Constitutional Rights in February 2011.

As Nick MacDonald and I explained in a column in the Hill Times from April 4 (and as we examine in even greater detail in an upcoming article!), the caretaker convention means that from the issuing of the writs of election to the appointment of the next government, the current government ought not to exercise the full extent of its legal powers by declining to take on any major spending that Parliament had not already approved before the writs, and by voluntarily limiting the Crown prerogative on major appointments. The caretaker convention exists in the absence of any formalized, legal limitations on the government’s power during the writ period. When Parliament is not in session, the House of Commons cannot fulfill its core function of  holding the government to account for its expenditures; therefore, in order to adhere the principle of responsible government as closely as possible, the government must constrain itself by convention. While the caretaker convention is in effect, the government carries out only routine spending and appointments necessary for the basic functioning of the country.

After reading Mel Cappe’s article, I submitted an ATIP request to the Privy Council Office for this supposedly “secret” document and received a complete and non-redacted copy in the mail the following week. The Guidelines On The Conduct of Ministers, Secretaries of State, Exempt Staff and Public Servants During An Election (see Documents tab) consist of 11 pages and introduces the caretaker convention before, as the title suggests, issuing more specific “guidelines” (in fact, directives or instructions) to ministers, secretaries of state, exempt staff (political staffers), and public servants. Most of these directives serve as common-sense reminders to separate government and partisan activity.

The Guidelines summarize the caretaker convention: “[D]uring an election, a government should restrict itself – in matters of policy, expenditure and appointments – to activity that is: a) routine, or b) non-controversial, or c) urgent and in the public interest, or d) reversible by a new government without undue cost or disruption, or e) agreed to by the Opposition (in those cases where consultation is appropriate).”

During the election, Nick and I had identified at least one instance where the government acted in accordance with these Guidelines. On Tuesday, April 12, 2011, the Globe and Mail reported that Minister Cannon had consulted with the Opposition on the Libyan matter before deciding to travel abroad. These international meetings pertaining to Canada’s participation in the NATO mission in Libya required the attendance of a minister of the crown and were both “urgent and in the public interest” and were “agreed to by the Opposition”. The government thus satisfied the main criteria of the Guidelines (as quoted in the previous paragraph).

I concur with Mel Cappe’s main conclusions: that the government should officially make public the Guidelines in order to better explain to the public the decisions made during writ periods. Unfortunately, our column in the Hill Times in which we wrote the official title of the “secret” document didn’t garner much attention, and few scholars have so far taken advantage of the availability of these Guidelines. I hope that this post and the link to the document will contribute meaningfully to further debate and discussion.

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Posted in Caretaker Convention & Government Formation, Officialization of Convention | 14 Comments