The Invisible Crown: The First Principle of Canadian Government 9781442669147

Table of contents :
Contents
PREFACE
Introduction
1. The Monarchical Idea
2. The Crown
3. Canadianizing the Crown
4. Government of the Day
5. The Culture of Administration
6. The Crown-in-Parliament
7. Law, Judiciary, and the Crown
8. Compound Monarchy and Canadian Federalism
9. Conclusion
NOTE
BIBLIOGRAPHY
INDEX

Citation preview

THE INVISIBLE CROWN: THE FIRST PRINCIPLE OF CANADIAN GOVERNMENT

The Crown is not only Canada's oldest continuing political institution but also its most pervasive, affecting the operation of Parliament and the legislatures, the executive, the bureaucracy the courts, and federalism. However, many consider the Crown to be obscure and anachronistic. David E. Smith's The Invisible Crown was one of the first books to study the role of the Crown in Canada and remains a significant resource for the unique perspective it offers on the Crown's place in politics. The Invisible Crown traces Canada's distinctive form of federalism, with highly autonomous provinces, to the Crown's influence. Smith concludes that the Crown has greatly affected the development of Canadian politics due to the country's societal, geographic, and economic conditions. Praised by the Globe and Mail's Michael Valpy as 'a thoroughly lucid, scholarly explanation of how the Canadian constitutional monarchy works,' it is bolstered by a new preface by the author speaking to recent events involving the Crown and Canadian politics, notably the prorogation of Parliament in 2008. DAVID E. SMITH, FRSC, is the author of Across the Aisle: Opposition in Canadian Politics, Federalism and the Constitution of Canada, and many books on Canadian politics. He is currently Distinguished Visiting Professor in the Department of Politics and Public Administration at Ryerson University.

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DAVID E. SMITH

The Invisible Crown: The First Principle of Canadian Government

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

University of Toronto Press 1995, 2013 Toronto Buffalo London www.utppublishing.com Printed in the U.S.A. First edition published 1995; this edition, with new preface, 2013 ISBN 978-1-4426-1585-4 ©

Printed on acid-free paper

Publication cataloguing information is available from Library and Archives Canada

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council.

Canada Council for the Arts

Conseil des Arts du Canada

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ONTARIO ARTS COUNCIL L'ONTARIOl l^^\J CONSEEL DES ARTS DE L'ONTARIO

University of Toronto Press acknowledges the financial support of the Government of Canada through the Canada Book Fund for its publishing activities.

THE MEMORY OF OF NORMAN NORMAN WARD TO THE

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Contents

PREFACE IX INTRODUCTION

xill

1 The Monarchichal Idea 3 2 The Crown 20 3 Canadianizing the Crown 38 4 Government of the Day 63 5 The Culture of Administration 86 6 The Crown-in-Parliament 110 7 Law, Judiciary, and the Crown 134 8 Compound Monarchy and Canadian Federalism 156 9 Conclusion 174 NOTES 187 BIBLIOGRAPHY INDEX

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Preface

The introductory chapter of The Invisible Crown, written in 1995, notes that 'although the Crown is Canada's oldest continuing political institution, it is perhaps the least understood/ In the eighteen years since the book was published, we have seen no reason to revise this assessment; if anything, misunderstandings and even outright confusion about the function and powers of the office seem to have grown. For those who wear the Crown in British-styled constitutional monarchies today, being and not doing is what normally matters. That is enough for the Queen, whose political advisers scrupulously shield her from the necessity of taking any debatable action, such as the use of the prerogative. With two exceptions, that statement might once have held true for Canada. The first exception was the well-documented controversy surrounding the governor general's refusal in 1926 to accept his prime minister's advice to dissolve Parliament. The second exception is the prominence Liberal governments of the last century gave the office of governor general as Canada sought legislative supremacy and diplomatic autonomy vis-a-vis the Parliament and government of Great Britain. Constitutionally speaking, as one Crown retreated in prominence, the other (Canada's) increased, along with the promotion of a separate (national) as opposed to a double (imperial-colonial) identity. Although worn by the same Sovereign, the two Crowns became distinct and independent. To maintain otherwise would contradict the settled understanding of what the Statute of Westminster, 1931 portended and the Constitution Act, 1982 signified. That at least appeared to be true until 2013, when the government, led by Stephen Harper, announced that the federal Parliament alone would be asked to assent to new rules of succession - to the Canadian Crown - as set forth in British legislation. The merits of this

x The Invisible Crown decision are outside the boundaries of a short introduction and at the time of writing remain unresolved. The issue is raised here as an example of the recent change in condition and perception of the Crown. The office of governor general has received far greater publicity in the last decade than at any time in the past because it is more public. This has happened not as a result of the conduct of ceremonial duties, important as these may be. Rather, the prorogation controversies of 2008 and 2009 and the Idle No More demonstrations of 2012 and 2013 have brought the Canadian Crown into the public eye to an extent unprecedented in the country's history. And there is more: in 2013 there were before the Court of Appeal of Quebec and the Supreme Court of Canada references (from the Quebec and federal governments, respectively) seeking opinions on the constitutionality of federal legislation (Bill C-7) to introduce term elections for Canadian senators. These elections, to be conducted by authorities within the provinces, would produce winners who might then be recommended by the prime minister for appointment to the Senate of Canada by the governor general. Subjecting the Crown's prerogative of appointment to the will of the people (expressed through popular election) creates a conundrum that is difficult to resolve in light of Canada's monarchical constitution. Once again, the issue is not the comparative merits of the proposed reform to the upper chamber so much as its contribution to an emerging structural instability in an institution most people believed was protected by the amendment provisions set out in the Constitution Act, 1982. There is a pattern evident in these incidents and others; for example, the introduction of fixed-date election legislation to limit the Crown's use of the prerogative of dissolution to a time determined electorally advantageous by the prime minister. In each instance, three actors command attention: the Crown, Parliament, and the people. In the prorogation dispute, the Crown was summoned as an ally of the people, thereby ensuring that they and not Parliament should determine the composition of the government that succeeded the one defeated in the House. In the Idle No More confrontations, the alliance sought was between the Crown and First Nations, and against the government who commanded support of the House of Commons. In the debate over fixed-date elections, the alignment was the people, represented in an elected House of Commons, against the Crown and its advisers. The rise of the people and the prominence of opinion outside of Parliament, deepening discontent with the conventions of parliamentary government on the inside, along with the fragmentation and decline of the official opposition parties have

Preface xi had the unexpected effect of turning attention to the Crown in Canada in contexts that are inescapably political. Coincidental!}^ the backgrounds of those chosen governor general have changed markedly in the last decade and a half. Neither Adrienne Clarkson (1999), nor Michaelle Jean (2005), nor David Johnston (2010) were active in electoral politics before their appointments. In this respect, their professional careers were distinct from those of their predecessors, a trend that appears to be moving towards codification as a result of the government's establishment of a permanent committee on vice-regal appointments in 2012. Parliamentary reformers who inveigh against partisanship in high office will doubtless celebrate the change if partisan appointment indeed becomes a practice of the past. Still, if that happens, it is worth noting that one part of the tripartite Parliament will be filled by an individual who lacks - and is chosen because he or she lacks parliamentary experience. Whether that person is more or less susceptible to political, and especially governmental, influence than previous office-holders is a subject requiring future study When it comes to the Crown in Canada, change at the top has had no discernible influence on the fortunes of republican sentiment. They remain low and flat, a long-term condition that sets Canada apart from Australia, a country with which it shares some common influences. Utilizing what Walter Bagehot termed the 'dignified element of the Crown/ the Harper government has chosen to promote the Sovereign herself, prominently displaying her photograph in public settings and enthusiastically renewing the designation 'royal7 in contexts whence it has long been abandoned. Whether overt manifestations of monarchy will act as a stimulus to republican feeling is a moot question. Certainly there is little evidence from the past to support that surmise. Elevating the 'British' Crown (as some critics would describe it) has elicited a predictable response from Parti Quebecois politicians before and after that party formed the provincial government in 2012. Whether the presence of an unfriendly force in Quebec, capable of doing mischief in matters royal, explains the decision of the government in Ottawa to alter the law of succession by statute rather than constitutional amendment is at the most speculation. If in the last eighteen years the dignified element of the Crown has attracted more public attention than previously, the efficient (Bagehot's other) element carries on much as it always has. This is the constitutional monarchy of everyday life, as seen for instance in the operation of Parliament, the conduct of foreign affairs, the practice of law, the ad-

xii The Invisible Crown ministration of the public service, and the relations between federal and provincial governments. These aspects of governing are so basic, so embedded, and - as the title of this book says - so invisible in the conduct of Canadian life that they appear to be immune to events transpiring in the realm of the dignified Crown. However, this does not mean they go unstudied. A significant development in the last decade and a half has been a growing literature on and scholarly interest in the Crown. One measure of this renewed interest can be seen in the make-up of registrants at a conference on the Crown held in Regina, Saskatchewan, in 2012 to mark the Queen's Diamond Jubilee: approximately 40 per cent of those attending came from federal, provincial, and territorial offices whose purposes are to provide support to representatives of the Crown in Canada. Both the number of attendees and their nationwide constituency testify to a deepening understanding among those close to the Crown of the constitutional importance of maintaining its integrity for the future of the country. The challenge is to communicate the significance of this 'first principle of Canadian government7 to a larger and more diverse audience, a task which, I hope, the republication of this book will go some way to achieving. Niagara-on-the-Lake, ON February 2013

Introduction

Authors often complain that reviewers criticize books they did not write. An introduction presents an opportunity to avoid misunderstanding, one that should especially be seized when the topic is the Crown. Although the Crown is Canada's oldest continuing political institution, it is perhaps the least understood. Part of the reason is personalities: the Crown is identified with the sovereign (more than with the sovereign's representatives, if the observations of Canadians compiled during the research for this book are an indication), and almost never as an institution of government. Part of it is circumstance: long out of fashion in the new world, the triumph of democracy in the twentieth century has accelerated the decline of hereditary rule worldwide. Remote and anachronistic, then, the Crown in Canada requires explanation. Yet a degree in constitutional law is almost a prerequisite for clarifying an arrangement of power that recognizes as head of state a non-resident monarch. Ambiguity grows, since Canadians must also reconcile their undoubted domestic independence on the one hand, and the retention of the most visible remnant of their colonial past on the other. Since few people are interested in constitutional metaphysics, the usual way of dealing with these contradictions is to dismiss them as more apparent than real: in other words, to depreciate the significance of monarchical government and, by inference, the role of the Crown. Thus, it is said, the Crown acts only on the advice of ministers responsible to Canadian legislatures. As for its British provenance, this too is deemed negligible, since in practice it is the sovereign's Canadian representatives in Ottawa and the provincial capitals who actually take ministerial advice.

xiv The Invisible Crown Serviceable though this rationale may be, it conveys the impression that the whole arrangement is an elaborate charade - interesting but not to be taken seriously. True, governors general and lieutenant-governors are invariably praised as instruments of national unity and social cohesion, but their contribution to the process of governing is depicted as inconsequential. This book rejects such a minimalist interpretation; instead, it advances the proposition that the Crown as a concept should be taken seriously in the study of Canadian government. Indeed, it goes further and asserts that the Crown is the organizing force behind the executive, legislature, administration, and judiciary in both the federal and provincial spheres of government. Moreover, because of this dual presence, the Crown exercises determinative influence over the conduct of intergovernmental relations. The result, it will be argued, is a distinctive form of federalism best described as a system of compound monarchies. As the nucleus of the constitution, then, the Crown reaches into every area of government activity in all jurisdictions, including Quebec. Yet, despite this essential place in the constitutional order, its influence remains largely invisible behind the shield of responsible government. The achievement of the 1840s, it would appear, did not extinguish monarchical power so much as give it a patent of responsibility. Constitutional theory reinforces the perception of the Crown as insignificant, since it emphasizes the personal duties of the monarch. More than a century ago, Walter Bagehot distinguished the parts of the English constitution according to whether the function they performed was dignified or efficient. Ever since, the monarch (or Crown, since Bagehot used both terms) has been viewed as a dignified element whose duties are essentially passive: personifying (the state), symbolizing (morality), and representing (society). Passive but not unimportant, since if performed well, the dignified Crown, according to Bagehot, evoked loyalty and confirmed political order. In theory, the role Bagehot assigned the monarch in Britain ought to have applied to his or her representatives in Canada, but in practice, it never quite did. Unlike the mother country, Canada was linguistically and culturally divided, and governors general actively sought to recognize and accommodate that dualism. Their success or failure, which has been recounted elsewhere, is not the subject of this study. The purpose here is to reclaim the institution of the Crown from Bagehot's dignified limbo. To this end, it argues that the Crown and its prerogatives empower the political executive and make it efficient in the very sense

Introduction xv Bagehot intended when he used that term to describe the non-dignified elements of the constitution: that is to produce an effect. More than this, the reservoir of discretionary power inherent in the Crown and available to its advisers helps to explain the disposition toward activism and innovation that is a characteristic of governments in the Canadian political system. Therefore, the Crown is no icon. It permeates daily government, not in an unconstitutional way, but in a habitual attitude to government that depends upon access to discretion. Several decades ago, in his book on the royal power of dissolution, Eugene Forsey rehabilitated the reserve powers of the Crown. These, he believed, were in danger of disappearing before what he called a rubber stamp theory of the constitution which said the sovereign or the sovereign's representative must act only on advice. But the reserve powers are just that, extraordinary powers to be used only in extraordinary situations. Thus, Forsey's concerns, though relevant, are not the concerns of this study, which are to examine the contribution of the Crown to the organization of political life in Canada. This book makes a plea to bring the Crown back into the study of government. It argues that Bagehot did his work too thoroughly in labelling it a dignified element of the constitution. On the contrary, the Crown permeates the political system in all manner of ways, ways which political scientists have tended to ignore in favour of the more familiar, and more visible, institutions of cabinet and parliamentary government. As a result, the subject of the Crown and its prerogative powers has been left largely to the scrutiny of lawyers. This book is dedicated to Norman Ward, a colleague and friend who died in 1990. Norman taught political science at the University of Saskatchewan for four decades. During that time he wrote what have become classic works on Canadian political institutions. His studies of the House of Commons, the Office of Auditor General, and the machinery of elections are essential reading to all students of this country's government. In the 1960s, when new approaches and interests in the discipline threatened to relegate all political institutions to Bagehot's dignified category, Norman, through example, instilled in young academics a respect for their form and function. The Crown, however, was not one of the institutions to attract his research attention, nor his personal interest. Asked on two occasions whether he would be interested in being considered for the position of lieutenant-governor of Saskatchewan, he declined both times. His

xvi The Invisible Crown answer would not have surprised his interlocutors in Ottawa had they read the only two articles he wrote about the Crown: The Meaning of Monarchy' (tea-parties in Victoria) and The Raising of Pigs by Lieutenant Governors' (livestock in Winnipeg).1 Both pieces dealt with historical fact but both displayed the literary style he admired most (that of P.G. Wodehouse) and which in 1960 earned him the Stephen Leacock Memorial Medal for Humour. Light prose and impeccable research were a Ward trademark. The Invisible Crown is the product of study made possible by the award of the Jules and Gabrielle Léger Fellowship for 1992-3. Established to promote knowledge of the Crown in Canada, the fellowship has led to the publication of works of biography and institutional analysis. I hope that this book, which advocates neither the retention nor abolition of the Crown but seeks to illustrate its central position in the Canadian government system, is judged as fulfilling the expectations of the fellowship. Research for this work was carried out principally at the National Archives of Canada, the Australian Archives, the National Library of Australia (Manuscripts Room), the Saskatchewan Archives Board, and the Law Library and Government Publications Library of the University of Saskatchewan. The papers, collections, and sources consulted are listed in the bibliography. I wish to thank the staff of each of these bodies for their advice and help. Most especially, in light of the prominence the holdings of the National Archives of Canada have for this study, I particularly want to acknowledge the assistance I received from the personnel of that institution. Canada is a big country, travel and accommodation are expensive, and time is precious. Even when budgets are tight, the policies and staff of the National Archives of Canada do much to ameliorate the conditions researchers from outside of central Canada encounter when they travel to the national capital. I am indebted, once again, to the University of Saskatchewan for its continued support of my research in the form of a sabbatical leave and a subvention from the University of Saskatchewan publications fund to allow for the compilation of an index. Geri Rowlatt took on the tedious task of indexer, while Diane Mew, as ever, offered critical but friendly editorial comment. Finally, I want to thank Lorrie Hnatiuk, who cheerfully typed the manuscript from script only she could read. Saskatoon, Saskatchewan Victoria Day, 1995

THE INVISIBLE CROWN: THE FIRST PRINCIPLE OF CANADIAN GOVERNMENT

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l The Monarchical Idea

It is, of course, an exaggeration to say that political science without constitutional law is blind, and constitutional law without political science is empty, but it is only an exaggeration. K.C. Wheare

In his book The English Constitution, published in 1867, Walter Bagehot claimed that the 'mass of mankind' understood monarchy because it was simple and intelligible. The same, he argued, could not be said of parliamentary and cabinet government whose multiple parts and shifting alliances perplexed and confounded the populace. Bagehot intended that his treatise should elucidate these mysteries; and so it did, and does. K.C. Wheare, the interpreter of another governmental form, federalism, credits Bagehot with 'inventing' the English constitution, one which people had failed to 'recognize or apprehend' before he wrote about it.1 The attraction of Bagehot's analysis rests partly in its own simplicity: there are, he posits, dignified and efficient parts of the constitution (that is, parts which hold authority and parts which use authority); and pre-eminent among the former is the monarchy. The present book is not about Bagehot, but it is about monarchical rule or the Crown, and thus it is appropriate to begin with reference to this classic work, especially since theoretical studies of the Crown in a Canadian constitutional context, as opposed to historical or biographical studies, are rare. For the moment Crown and monarchy are used as synonyms, although, as the next chapter will argue, there has been for some time a debate over nomenclature and the distinctions they imply.

4 The Invisible Crown Despite repeated assertion that Canada and its composite parts before Confederation had constitutions 'similar in principle to' or in the 'image and transcript of the British constitution, Bagehot's taxonomy was never so apposite on this side of the Atlantic (or in any other British possession) as it was at home. There was always a metaphysical ambiguity about how an absent ruler could embrace the Canadian people at the same time he or she embodied the British nation. The representational problem was compounded by the need to fit monarchical appointees (governors general, for instance) into this scheme. At best, the institution and person of monarchy in Canada could only be derivative and reflective of its British source. If a metaphor were wanted, the monarchy in Canada could never function as more than a satellite moon to the royal sun. Thus the role and function of monarchy in Canada was never so categorical as Bagehot had suggested. To understand the office required at least bi-focal lens: to distinguish governors general in the middle ground from monarchs in the far ground. Better still if the optician prescribed tri-focals; for Canada was a federation over whose unit governments monarchical surrogates also presided. Admittedly, the status of these last officers was the subject of heated debate within Canada in the closing decades of the nineteenth century. At its end, however, it was indisputable that in this country monarchy partook of a trinity. Thus, far from being an easy idea to comprehend, in Canada - a federation within an empire - monarchy required a sophisticated and expansive appreciation of constitutional matters and relationships. The early history of the Canadian constitution is in large part the history of these subjects as the country progressed along the road to autonomy. By the time of the Statute of Westminster in 1931, which recognized the dominions as equal in status to Great Britain, the rules governing relations between governors general and their ministers mirrored those existing between the monarch and his ministers. Moreover, the office had been opened to local residents, an invitation Australia immediately (though temporarily) accepted in 1931 but Canada delayed acting upon until 1952. At that point evolution seemed to end, and rather than crystallize and clarify its position, the meaning of monarchy in modern Canada grew more not less opaque, thus inverting Bagehot's index of intelligibility. The reason is not far to seek: in a country increasingly worried about unity and sensitive to symbols, the Crown gained government little in authority. Instead, during the last thirty years the monarchy has been overshadowed by the quest to reform the efficient

The Monarchical Idea 5 institutions of government and federalism. With one notable exception in the late 1970s, the Canadian monarchy drifted in a constitutional backwater from where it failed to rouse passion, certainly none approaching the feeling expressed in the cause of Senate reform or even, for that matter, interprovincial free trade. Although Canadians seem willing to ignore and depreciate its importance, the monarchical principle is the organizing principle of Canadian government. One may go even further and, borrowing E.E. Schattsneider's epigram composed for another occasion, repeat his caution: 'He who knows this fact, and knows nothing else, knows more about [Canadian politics] than he who knows everything except this fact/ 2 This is a large, some might say extravagant, claim. Subsequent chapters of this book will adduce evidence in its support. That the attempt is worthwhile lies in the following propositions: the position and powers of the Crown in the Canadian constitution have moulded and influenced the operation of the country's courts, laws, legislatures, and executives at both the federal and provincial levels of government; they have determined the evolution and administration of the public services of Canada; and they have exercised a singular force upon the growth of Canada's form of federalism. Lest it be overlooked, the monarchical principle also informs relations between the branches of government. In short, the pervasive influence of the Crown reaches into all areas of Canadian politics, including the very perceptions ruled and rulers hold of the 'realm' of government. To repeat: the argument is about the influence of monarchy on the operation of government. It is not a plea for monarchy's retention or abolition, although on this last matter it is worth noting, if tautologically so, that indifference to the Crown plays no favourites. There is not now nor has there ever been a republican movement in Canada of any moment. More typical of Canadian attitudes is the following. On Canada Day 1992, an Angus Reid poll reported that 59 per cent of Canadians thought the monarchy 'irrelevant/ while 15 per cent thought it positively "bad for Canada.' Only slightly more than a quarter of respondents thought it 'good for the country.' Exceptional in this context, then, was a Globe ana Mail editorial two days earlier which observed that the Queen is 'no longer truly a part of us/ On no proffered evidence, it recommended as an alternative to the monarch who will succeed the Queen, 'a true head of state ... elected for life' by the 150 Companions of the Order of Canada. That person would carry out the ceremonial and constitutional tasks now performed by the governor general.

6 The Invisible Crown On the question of the Crown, Canada differs from Australia where a vocal constituency, including some constitutional lawyers, is pressing the case that Australia become a republic by the centenary of the Commonwealth's creation in 2001.3 Australian example is not necessarily applicable elsewhere, but comparisons and contrasts drawn from that country help highlight the distinctiveness of Canadian practice and attitudes. Like Canada, Australia is a former colony and dominion of the British Empire, with political institutions today that are federal, parliamentary, and monarchical. Its small population occupies an immense territory whose economy is based principally on staples and natural resources, and that population has until recently been composed in the main of descendants of European settlers plus a small number of aboriginal or Native people. The singular difference between the two countries lies in Canada's distinct society, Quebec, and in Canada's sharing of the North American continent with a superpower. But despite their physical and historical similarities, Australia's experience with the Crown has differed markedly in some respects from that of Canada. For this reason, it will illuminate Canadian distinctiveness if Australian experience serves as a foil in later discussion. For no institution does the use of comparison seem so desirable as for the Crown, whose essence is enveloped in silken ambiguity. Whether Canadians could reconcile themselves to the Globe and Mail's electoral college proposal or to any other that would see the symbols of the Crown change, whether the Crown as it has historically evolved fosters a sense of national unity - these are questions for others to determine. What is clear from the sparse discussion to date is that the Crown is caught in a shortfall of understanding. That is not a new condition but it is regrettable, since Canadians, if asked to choose between existing and alternative forms of head of state, will see the Crown only in a half light and, then, largely from a historical perspective. In this they may seem no different than their British counterparts, who also are consumers of a royal heritage, one whose hallmarks are scarcely more venerable than the Canadian federation itself.4 But there are differences between the two countries in their experience of monarchy. The Crown has woven itself into Canadian life in distinctive ways - through its settlement and expansion, colonial government and federal innovation - that have nothing to do with an established church, hereditary aristocracy, or, even, a royal family. Similarities can disguise differences too. Consider, for instance, the thesis advanced by British historian Lewis B. Namier, that one of the

The Monarchical Idea 7 basic elements of constitutional monarchy is 'an unpolitical Civil Service whose primary connexion is with the Crown/5 Does this prescription hold true for Canada? If so, few Canadian observers have commented on it. This is not to say that political patronage has not received attention, usually negatively in both official and unofficial sources, for the detrimental impact it has on competent government. In addition to reports from numerous royal commissions and public inquiries, there is, for example, the now neglected book by R. MacGregor Dawson, The Principle of Official Independence (Dawson's doctoral dissertation supervised by Graham Wallas). Rather, it is to say that the reciprocal relationship between Crown and civil service has gone largely unacknowledged and unexplored in Canada. At one level the reason for the omission is perhaps understandable: the Canadian public service is based primarily upon statute (for reasons not unassociated with earlier Crown involvement in appointments), while the British civil service is regulated by use of the royal prerogative. Namier makes the intriguing comment that 'it was not by chance' that the Crown and the civil service 'left the political arena/6 Similarly, was it by design that this happened only imperfectly in Canada? It is often said that British political institutions have offered a model for Canadian political practice. But to speak of models is to imply that the institutions in question are imitable. In the case of civil service traditions this was not so. The consequences have been widespread; for example, executive management of the federal public service directly affects the health and wealth of federalism, a consequence that criticism of federal policies by individual citizens, provincial governments, and members of Parliament alike acknowledges. MPs who complain of impotence in determining the content and administration of policy are a reminder that if Canada's governing structure is not cast in a British mould, neither is it of United States design in the way it operates.7 Another institution marked by the Crown is the judiciary. Under section 96 of the Constitution Act, 1867, the governor-in-council appoints judges to all but the lowest-level courts in Canada. While it cannot be denied that through control of legal education a provincial component is introduced into the higher levels of the judiciary,8 the prerogative power of appointment, determined in this case by the prime minister, has immense significance - a claim borne out by recent provincial demands for a role in the nomination process. Similarly, the executive power to request advisory opinions - a contentious provision at the time of the Supreme Court's creation - has had incalculable consequences for Cana-

8 The Invisible Crown dian federalism. It has had effect both directly, in subjects such as the treaty power (Canada's central government cannot implement all the treaties it concludes, only those whose subject matter falls under section 91), and indirectly, as in 1982, when the federal government pre-empted a decision by the Newfoundland Court of Appeal on jurisdiction over seabed resources by referring the matter to the Supreme Court.9 Advisory opinions will be discussed in the chapter on the judiciary. Here it should be noted that the origin of the reference provision in the act establishing the Supreme Court of Canada was the United Kingdom's Privy Council Act of the mid-nineteenth century, which set up the Judicial Committee of the Privy Council in its modern form. The Privy Council is, of course, a branch of the executive in Great Britain. Canadians have reason to be acquainted with advisory opinions and the Judicial Committee of the Privy Council, for in addition to hearing case appeals from Canada, the Judicial Committee also heard appeals on advisory opinions. The history of that appellate jurisdiction and its impact on Canadian constitutional development has been exhaustively covered.10 Perhaps less generally appreciated, however, is that Canadian appeals constituted an exception to Judicial Committee practice. Lord Haldane, who possesses the reputation as a spoiler of John A. Macdonald's dream of a centralized federation, considered his Canadian experience with advisory opinions anything but pleasant or salutary: T have decided scores and scores of them, and anything more unsatisfactory and more mischievous I do not know/11 Namier describes as incongruous 'associating] a royal executive with parliamentary struggles for office/12 How much more incongruous then is the coupling of monarchy to federalism? Not only is there more government than before, but the federal principle, which is centrifugal and thus disperses power, operates in contradistinction to the monarchical principle, which is centripetal and concentrates power. The attraction of monarchy for the Fathers of Confederation lay, said W.L. Morton, in the powerful counterweight it posed to the potential for federalism to fracture, since 'only monarchy could create a new nationality in North America/13 Indeed, the phrase 'fragmented federalism' seemed almost redundant to the architects of 1867. The legislative union that Macdonald, in particular, desired had to be forfeited, but the quarter-century debate over the status of the lieutenant-governor revealed a vestigial loyalty to the lost cause. The symmetry of dependence between the provinces and Ottawa and, to a lesser extent, between Ottawa and London remained an alternative concept even as it faltered in execution.

The Monarchical Idea 9 The resolution of that well-documented debate is a paradox remarkable in the annals of federal government in Canada and elsewhere. The operation of the Crown in the provinces reinforced the dispersion inherent in the federal principle.14 Though some of the subjects at issue - the right of a province to escheats and the right of a province to appoint queen's counsel - might seem arcane, 'they touched/ says one chronicler of the controversy, 'the realities of political power/15 Rhetoric might invoke the authority of the dignified office of lieutenant-governor but the powers of the efficient political executive were at stake. In the event, the judiciary found 'the Lieutenant-Governor ... as much a representative of His Majesty for all purposes of Provincial Government as is the Governor-General for all purposes of Dominion Government/16 Thus, by the end of the nineteenth century, it could be argued that the Crown had assumed a dual personality: it had, in Canadian fashion, been federalized. The Fathers of Confederation looked to monarchy to mould a common allegiance among the parts of the new federation, a view less often heard a century later but echoed as late as 1957 by John Farthing, who depicted 'the monarchical order [as] rooted in the unity of social life/17 Farthing's views about monarchy, the fact he even felt the need to write about them, marked him as unusual when he wrote his book, and more so in the 1990s. His obvious belief in hierarchy and an organic political community have exposed him retrospectively to the label 'nostalgic diehard/18 But Farthing's view of politics and society was shared by people like Macdonald. Monarchy was not just one brand of executive to be chosen or discarded at will. Nor was it only about governing. It was about social cohesion, and in 1864 the Fathers of Confederation unanimously and implicitly looked to the Crown to achieve this end. In his opening speech on the Confederation motion, Macdonald remarked that 'not a single suggestion was made, that it could, by any possibility, be for the interest of the colonies, or of any section or portion of them, that there should be a severance of our connection/19 The expectation that the Crown would act as an integrative, panCanadian force failed to anticipate the fission produced when monarchy met federalism. Rather than being a centralizing force that helped unify the nation, monarchy in Canada helped accentuate regional separation and contributed to the cleavage between unity and identity which a century later Northrop Frye said divided Canada: They are perhaps more different [here] than they are anywhere else. Identity is local and regional, rooted in imagination and works of culture; unity is national in

10 The Invisible Crown reference, international in perspective, and rooted in a political feeling/20 The Judicial Committee of the Privy Council authenticated the Crown in the Canadian provinces and bolstered the quest for provincial status. But that quest was propelled by other stimuli. First among these is what might be called the impetus to self-government, evident at different times in all parts of the country but first manifested in the maritime colonies in the eighteenth century. This animus did not disappear with Confederation, either in the original provinces, as witness the tenacity of Oliver Mowat on behalf of provincial rights, or in those territories from which new provinces were yet to be created. Indeed, it continues in sentiment if not form at the end of the twentieth century in the move for aboriginal self-government. The linkage between local self-government and Confederation, whether, as in the colony of Nova Scotia, it preceded 1867 or, as in Saskatchewan and Alberta in 1905, it was a product of provincehood itself, has significance for Canadian politics. By contrast, in the case of Australia, all the states save Western Australia had long experience with self-government prior to federation in 1901, while, in the United States, national independence and self-government for the original states were coterminous: 'No American state could exist outside the union/ says historian Peter Onuf.21 But the sequence in Canada saw some colonies (Nova Scotia, again) view Confederation as a curtailment of self-government, while others (Quebec and the prairie provinces, for instance) could only achieve the measure of self-government they wished through Confederation. In short, Confederation embraced contradictory goals. It could scarcely have been otherwise, for federation in Canada sought to reconcile two quite different objectives: amalgamation to permit further expansion, and partition (of the United Cañadas) to recognize French Canada's particular distinctiveness. The impetus to self-government fed the tension between centralizing and decentralizing tendencies that mark its history. Edward Blake isolated the source of the conflicting interpretations before the Judicial Committee of the Privy Council in 1888, when he contrasted the provinces as 'not fractions of a unit but units of a multiple/22 And it was in these units, argued W.L. Morton, that Canadians encountered democracy most directly. Speaking about the history of the franchise, he said, 'democracy, as a popular sentiment, was local in its origins and attachments in Canada/23 In the provinces there were fewer impediments to self-government than in the institutions at the centre. Jurisdiction was unitary and legislatures overwhelmingly unicameral (since Confederation five have had two houses, but only two in this century, the last

The Monarchical Idea 11 upper chamber, Quebec's, being abolished in 1968). By contrast, all six of Australia's states had bicameral legislatures - five still do - and a majority of these were elected. The implications of the contrast in executive-legislative relations and for centre-unit government relations in the two federations is considerable and will be evaluated in later chapters. For the moment it is sufficient to say that the impetus to self-government in the Canadian provinces has produced for most of the country's history - until the Canadian Charter of Rights and Freedoms of 1982, introduced a higher law into the constitution - executives unrestrained by institutional checks in the form of second chambers. Nor have provincial governments been restrained except in unusual circumstances by the exercise of the federal powers of reservation and disallowance. Thus the provinces have evolved a degree of autonomy unimagined by the Fathers of Confederation and unexcelled elsewhere by units of a federal system. Rather, they have been the unexpected beneficiaries of judicial interpretation and economic, social, and political forces. The result of the evolution has led to a constitutional amalgam in Canada which will be called compound monarchy. It was said earlier that the Crown is the organizing principle in Canadian government. That dictum applies not only to the central but to provincial governments and, in turn, explains those reservoirs of power in the parts of the federation that together rival the centre. The designation compound monarchy is an adaptation of the term compound republic, used by the American political scientist, Vincent Ostrom, to describe the constitutional system of the United States and, more recently, by the Australian political scientist, Campbell Sharman, to describe his own country's mixture of parliamentary government and federalism. According to Ostrom, the explanation for the United States' distinctiveness rests in the dispersal of government power among rival agencies, agreement among which is necessary for authoritative action. Australia, Sharman argues, is a compound republic 'in the sense that its institutional design relies predominantly on the dispersal of power to achieve individual liberty and governmental responsibility.'24 Australia's political tradition embraces bicameralism and a disposition to entrench constitutions from change, as well as federalism and responsible government along British parliamentary lines. It is the first two characteristics that Canada does not share and which go some distance to explain its predisposition to executive dominance at both levels of government, a feature some observers have interpreted as evidence of retarded political development.25

12 The Invisible Crown The contrast is a product of a difference in state development in Canada and Australia, the origins of which are rooted in the colonial period. Australia is an island (two in fact) where settlement radiated from six coastal centres; there never was a single frontier in Australia, certainly not a frontier that swept across the continent as in North America. There was, however, in Australia a mother colony (New South Wales) without parallel in Canada, and New South Wales was the pre-eminent convict settlement - the first antipodean terminus of the British system of transportation. Convict settlement, as Alastair Davidson has brilliantly argued, created a guardian-state mentality which depended upon restraint and direction manifested through upper chambers, concern for entrenched rights, early advanced bureaucratic structures, and a penchant for legalism and litigation.26 Canada's closest approximation to a mother colony, the United Cañadas of 1840 to 1867, never exercised a similar domination; it neither spawned subsidiary colonies nor exerted a structural impact, since its own institutions and laws were divided in practice and in fact along linguistic and legal lines. Isaac Isaacs, Australia's first native-born governor general and later chief justice of its High Court, is said to have viewed the states of the Australian federation 'as essentially ... geographical and governmental units ... carved out of the continent... by British Colonial Office clerks and their transient Ministerial masters.'27 No Canadian could ever adopt so matter-of-fact or mechanistic a view. Canadian geography (the Rocky Mountains, the Canadian Shield, the Bay of Fundy, the Northumberland and Canso Straits) and the forces of religion and race insulated the provinces from each other. Canadian confederation created a purposive national government to surmount these barriers and to guide settlement on the western frontier. If there was any Canadian parallel (and it was far from being exact) to New South Wales' dominance, it was the central government's imperial-like relationship to the prairie provinces; but that relationship only emphasized the monarchical character of Canada's governmental structure. By European standards, Canada and Australia, like Britain itself, were 'weak-state models' - by which is meant they did not seek 'to dominate the periphery via the stewardship of an outside administration.'28 But even among the three countries, it is possible to distinguish degrees of central direction. In the formation of the federal state in Canada the central government played a determining role in the first decades of Confederation for example, in the building of the Canadian Pacific Railway, the promotion and direction of immigrants onto dominion lands retained by

The Monarchical Idea 13 Ottawa in the prairie provinces, and the conduct of the First World War. It was the judiciary which slackened the federal political sail and empowered the provincial governments. The emphasis Canadians now place on Judicial Committee opinions that reversed the centralist intent of the Fathers of Confederation belies how Canadian federalism operated, and how it appeared to operate in the eyes of observers before the end of the nineteenth century. Australia's founding fathers ultimately rejected the Canadian model of federalism because, they believed, it conferred too little power on the provinces. At the very time the Judicial Committee was acknowledging the force of the case for provincial rights (for example, Liquidators of the Maritime Bank case and the Local Prohibition case),29 Canada's federal model was rejected by Australian advocates of states' rights, who believed the United States constitution met their needs. In light of contrasting federal development in Canada and the United States that choice, a hundred years later, appears mistaken. Of the unit governments in the three Anglo-American federations, the Canadian provinces are by far the most powerful. As an aside, it should be noted that not all of Australia's founding fathers dismissed Canadian federalism or found it wanting.30 A number favoured adopting its centralized structures (including governor-in-council appointment of senators) as a restraint on the established interests who monopolized their colonies' upper chambers and thwarted the expression of democratic interests. The attraction for Australians of states' rights in the United States at the turn of the century contrasted sharply with Canadian rejection of the same states' rights thirty-five years earlier. That contrast had a profound impact on the written documents that created the two 'British' federal systems. To describe Canada as a compound monarchy is to run the risk of devaluing the importance of what was accomplished in 1867. It suggests a failure to achieve substantive change, a view that a thirty-year search for constitutional reform in the last half of the twentieth century seems to confirm. How could so much be wrong with something that was any good in the first place? As an instrument of federalism, the 1867 agreement is deemed flawed because, among other reasons, the upper chamber (Senate) fails to represent provinces let alone represent them equally. As an instrument of democracy, the original Constitution Act is similarly tarnished in the eyes of some modern critics: 'Canada was not created as a democracy ... [Canada evolved] from constitutional monarchy with full parliamentary supremacy to democracy with sovereignty

14 The Invisible Crown exercised by the people ... Canada is, defacto, now a republic; the people of Canada are sovereign/31 A less critical assessment of Confederation might note the adaptability of Canadian federalism, the long-term prosperity of most of the country's peoples and regions, and a record of political and individual freedom that pre-dated the proclamation of the Charter of Rights. Yet the apparent willingness of governments everywhere in Canada to entertain all manner of proposals to change the constitution lends credence to the view that the original agreement was deeply flawed; either that or conditions have so dramatically changed as to throw into doubt its earlier legitimacy. It needs to be said, as Graham Spry, among others, has written, that what occurred in 1867 was 'not a trivial vision ... [Pjeople of French and English tongues and Catholic and Protestant faiths, scattered in knots along the shores of the Atlantic, St Lawrence, and Great Lakes, set out consciously and of design to encompass, master, unite and govern the vast territories lying virgin and almost empty between the Atlantic, Pacific and Arctic oceans ,..'32 Nation-building under the Crown and through federation constituted an act of political innovation that enhanced the opportunities for citizen participation and extended the reach and effect of Canadian action. It is hard to accept the view that Confederation rearranged existing colonial power but added nothing to Canada's sum total of legislative potential or status. The colonies of British North America had to unite in order to expand (the North-West Territories and Rupert's Land were given to Canada, not to the provinces of Canada in 1869); Confederation erected a new state that transcended all of its constituent parts; and a new class of person appeared - the Canadian. The implications that flowed from the geographical restructuring of 1869 proved to be monumental not only in terms of immigration, settlement, and the creation of later provinces but for relations with aboriginal people and for governing itself. Even today, 'the very large portion of Canada which is a federal territory gives the Canadian government an important role in regional planning and resource development.'33 The contrast with Australia in this regard is striking. A new constitution and new national institutions brought Canada to life in 1867. Contrary to current criticism, several of the institutions were federal bodies in law (for instance, the Senate) or in practice (the cabinet and, after 1875, the Supreme Court). The significance of the event for Canadians and for the British Empire was obscured because the Act of Confederation failed to be specific about the new status it was establishing - a lacuna resulting from a belief in an indivisible Crown and the

The Monarchical Idea 15 overriding status of British subject.34 Citizenship and nationality are matters connected with the Crown but still largely unexplored in Canadian political science literature.35 The 'absence of mind' which so characterized the growth of the British Empire also infected Confederation, and accounts for Macdonald's complaint to the colonial secretary that 'this remarkable event passed almost without notice/36 That indifference is particularly marked when compared to the pomp that accompanied Australia's creation, including a visit by the Duke and Duchess of York. There are two explanations for the contrast. First, Canada's union in 1867 was sui generis; there was no benchmark or standard by which to measure the significance of the event. Secondly, the period between 1867 and 1901 had witnessed an acceleration in imperial consciousness as the European powers took possession of Africa and the South Pacific. Imperial rivalry and Australia's isolation in that last part of the world were frequently referred to during the 1890s. In his letter to the colonial secretary, Macdonald expressed disappointment that in the years subsequent to 1867, 'the monarchical idea' had gone unnurtured to the detriment of imperial unity. From the perspective of the Empire, Canada's venture into federalism and its imminent expansion across the northern half of North America ought to have been events of singular significance. From the point of view of this study, the focus of greatest importance lies elsewhere: on the constitution that came into being and on the place of the Crown in that constitution. In 1982 the British North America Act, 1867 was unhappily renamed the Constitution Act, 1867. Constitutional lucidity suffered as a result of this act of naturalization. As most students of Canadian politics and history know, while the act of 1867 is the principal instrument of federalism, it conceals more than it reveals about government in Canada. Concealment lies in the misrepresentation of who does what and in the silence about how and when they do it. Chief among the offices wrapped in mystery is the Crown. If reasons are wanted for understanding the taciturnity of the Fathers of Confederation, there is no better place to look than at what they themselves said in the Quebec Resolutions: The Conference ... desire to follow the model of the British constitution so far as our circumstances will permit' (No. 3), and 'the Executive authority or government shall be... administered according to the well-understood principles of the British constitution' (No. 4). The constitution referred to in these resolutions had nothing to do with Bagehot's dignified or with efficient institutions but spoke to unwritten,

16 The Invisible Crown 'well-understood' modes of practice - the conventions of the constitution. The uncodified constitution and the language associated with it are susceptible to different and elusive meanings.37 The most commonly cited illustration of conventions moulding the Canadian political system is the introduction and operation of responsible government. The principle of accountability which theoretically informs the institutions of government begins with the convention that the monarch's advisers shall command the support of the popularly elected chamber. The acceptance of that principle in the colonies of British North America in the 1840s initiated modern governmental structures and practices, as a series of principal works on Canadian political and administrative history testify.38 Whatever else they discuss, each of these works touches on two parallel themes: the triumph of the political executive, or government, over the monarchical Crown; and the continuing struggle by Parliament to control the executive. Convention plays a paramount part in the first story, statute more so in the second. Together, they reveal the steady increase in power of what this book calls 'the invisible Crown' but what others have labelled as 'the governmental crown/39 For that reason they are as much works in constitutional development as they are studies in administrative or political history. The word 'development' underlines a strong quality of each of these books: the ineluctable evolutionary force of their subject, be it the office of auditor general, representation in the House of Commons, the civil service commission, or the civil service itself. These classic works, which do not include a study of the Crown in Canada,40 are indeed studies in constitutional history, as Canadians have traditionally understood that genre. A volume such as R. MacGregor Dawson's edited collection of documents, Constitutional Issues in Canada, 1900-1931, comprises chapters on the governor general, cabinet, House of Commons, Senate, civil service, judiciary, political parties, and dominion-provincial relations.41 But these are also essentially works in politics. Common ground between the two topics is great - so great in fact that the concept of a constitution separate from what the politicians say it is, is at most half a century old. It is only in the period since the Second World War that the idea of a higher (constitutional) law has begun to be voiced in Canada, first with the Bill of Rights of 1960, and then with the Canadian Charter of Rights and Freedoms of 1982. The latter quickly achieved authority as 'the peoples' Charter/ largely because of its popular invocation against the unpopular Meech Lake Accord.42 The Charter is exerting a revolutionary influence on Canadian politics

The Monarchical Idea

17

and traditional conceptions of what a constitution means. At its most visible, it is removing the constitution from the hands of the politician and placing it in those of the judiciary. The effect of this revolution on the Crown is perhaps less immediate and overt than on the political executive and legislatures, though the potential for conflict is plain. Historically, the concept of the Crown explains the weakness of the concept of the people as a constituent power. But Charter values that promote inclusion and participation challenge old practices of decision-making whose authority derives from a non-popular source. Federalism and not responsible government came to Canada through an act of Parliament. But as opposed to its form, the conduct of federalism, like the conduct of responsible government, rests on conventions and practices considered as constitutional in their significance as the document bearing that name. The difference between the two is that the judiciary exists to interpret the latter, while the former are open to dispute and uncertainty. The inchoate nature of conventions is responsible for two important features of constitutional discussion: episodic controversy and a tradition of Olympian interpretation. The vocabulary of federal-provincial relations has changed in the last thirty years, as witness the use of the term 'conventions/ In 1983 the dean of writers on Canadian federalism, Donald Smiley, noted the altered usage and wondered at its recent origin: 'Interestingly, the Favreau White Paper [1965] speaks of "principles" rather than "conventions"/43 This linguistic evolution illustrates the constitutionalization of federal-provincial relations - a transformation influenced by the development of compound monarchy. Controversy surrounding the Crown in Canada usually has at its source the question of whether the monarch's representative acted appropriately in accepting ministerial advice. Since the norm is to accept advice, it is only in exceptional circumstances where it might be argued that advice should be rejected. The fact that the latter instance arises occasionally in Canada, and almost never in Great Britain, reflects differences in institutional structures and societal expectations. Paradoxically, the imprecision in Canada has worked to the advantage of the Crown's advisers and not the Crown. The reason for this, according to B.K. Sandwell, long-time editor of Saturday Night, was because 'a constitution in process of development is bound, I fear, to depend a good deal on the votes of the electorate, no matter how little they may be aware of it at the time ... Most [of the Canadian people] don't know that there is a constitution to develop, in which they differ markedly from the Americans,

18 The Invisible Crown who are highly aware that they are working out their own constitutional destinies/44 The influence of controversy over the use of the Crown's powers - as, for example, in granting dissolution of legislatures or in signing special warrants - on public perceptions of the Crown's place in government is a subject of constitutional significance itself. It was said earlier that the Canadian tradition, like the British, was to equate the constitution with what the politicians said it was. This does not mean that those in political office had a free hand to interpret the constitution to their advantage, but rather that the constitution was the sum wisdom of political thought and practice. Here is the basis for the claim that 'history has traditionally been seen by the British as a substitute for a properly conceived ... constitution/45 Here, too, is the explanation for the hold Bagehot and, later, A.V. Dicey have on British and Canadian minds, along with Sir Ivor Jennings, Sir Arthur Berriedale Keith, and a score more interpreters of cabinet, Parliament, imperial relations, and so on in the twentieth century. To that list modern-day Canadians could add such authorities as Sir J.G. Bourinot, W.P.M. Kennedy, R. MacGregor Dawson, and Eugene Forsey.46 Reference to these and other authorities are commonplace in parliamentary debate and in legal argument. Macdonald cited 'Bagehot, and other later constitutional writers' when he reminded Nova Scotia's lieutenant-governor of his 'absolute, uncontrolled right to choose a Premier/47 Where the constitution was synonymous with a 'melange of past practices,' sources of authority were essential, or so Bagehot's rapid ascent as master interpreter would seem to attest. Confederation, achieved the same year The English Constitution first appeared, deepened this need by making the Canadian situation more complex. Parliament's own rules of order and procedure are considered parts of the constitution. But in the new Parliament of Canada, which rules applied, and how autonomous was that body to declare them? Two years before, in 1865, the United Kingdom Parliament had sought to clarify and extend colonial legislative power by limiting the supremacy of British statutes (and orders made under them) to situations where there was a conflict with a specific piece of colonial legislation.48 No similar denial of British suzerainty in parliamentary procedures existed, and it required the Parliament of Canada Act, 1875 (an amendment to the old British North America Act, 1867) 'to remove doubts as to the privileges, immunities and powers of the Dominion Parliament and its members/ As one of the items in the Schedule to the Constitution Act, 1982, that act is part of Canada's constitution today.

The Monarchical Idea 19 History and practice, not theory and values, propelled constitutional development and gave pre-eminence to politicians, who themselves assumed in Canada almost historic proportions: seven prime ministers governed a total one hundred of 125 years. Such longevity meant that in Ottawa, as opposed to Britain, the Crown's representatives came and went but prime ministers lived on; Macdonald served six, Mackenzie King five, and Trudeau four governors general. Where political ambition is served by such opportunity and where the constitution is as malleable as Canada's has traditionally been, then the stamp of a single individual on its development is potentially very great: Diefenbaker and the Bill of Rights, Mackenzie King and the advance to national status, Trudeau and the Charter. Six of the seven prime ministers were trained in the law (three as clerks). It was here that the constitutional inheritance began, although for those such as Macdonald and Laurier, who entered electoral politics early (as opposed to St Laurent, Trudeau, and Mulroney), an education in parliamentary politics quickly followed.49 Each man embodied a tradition that saw the common law, Parliament, and the constitution entwined. Later chapters will analyse the relationship of the Crown to the constituent parts of this tradition. In the absence of a codified constitution, the elements and practices that stand in its place are key to understanding government. For this reason the premium placed on political aptitude has usually exceeded that accorded legal skill. It is therefore unfortunate that existing biographies pay little attention to the intellectual moulding of their subjects. All the more so when those persons belong to no governing or established class but emerge from a colonial society that is sparsely populated and divided by language and religion as well as by distance. The behaviour to be emulated was British, but only up to the point where Canadian needs and values impinged. Then adaptation was required to accommodate a pluralist culture and an extravagant geography. Statute not common law was the route of adaptation. Canadian courts were constitutionally obliged to be 'faithful' to the products of English courts, but Canadian legislatures operated under no comparable constraint.50 From the outset, then, legislatures and legislators were overtly Canadian in manner and concerns. And for this reason: unless inheritance gave way to environment, Canadians were condemned, said Frank Underhill, 'to suffer from literary theory of our constitution.'51

2

The Crown

What is the Crown? The Government of the Day. Sir Leonard Tilley, Quebec Conference Discussions, 24 October 1864

It would simplify the discussion that follows if the equation between Crown and government expressed above were true. Alas, it is not; nor has it ever been a full and accurate rendering of the meaning of the term 'Crown/ Why the then premier of New Brunswick should have been so economical in his definition is understandable, however: by the 1860s responsible government was the ark of the constitution of the British North American colonies, though the law it housed was no tablet of stone but an intangible amalgam of custom, usage, and convention. True, the Crown remained, as it always had, the supreme executive, but everywhere it acted on the advice of ministries who commanded the support of popularly elected legislative chambers. Nevertheless, it is indicative of the hold responsible government had on the official mind that so soon after its achievement in Nova Scotia in 1848, it had driven other vestiges of the Crown to the margin. Yet it is these other forms that this chapter wishes to address, while leaving the subject of the 'Crownas-government-of-the-day' to a later chapter on the executive. There are two reasons for delay in approaching the topic of the Crown-as-government. First, there is a great deal more to be said about the Crown than normally falls under the rubric government. For instance, it is not possible to talk with any precision about the Crown in Canada without first acknowledging its imperial provenance, not because the Crown in Canada today is British - it is not - but because

The Crown 21 the patterns of meaning that underlie constitutional monarchy originated in Canada's British and colonial past. To discuss in the Canadian context the Crown's prerogative powers, what A.V. Dicey described as 'the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown/ and to discuss only that without reference to English constitutional history, would similarly misrepresent what occurred.1 For whatever the theory, the exercise of the prerogative on this side of the Atlantic Ocean has been different. How different, and why, is not evident if the discussion is limited to Canadian experience alone. Again, the Canadianization of the Crown - that is of the office of governor general - has been government policy for nearly half a century. That goal and the means employed to reach it, are examined in the next chapter, but analysis requires knowledge of the original arrangement which this chapter will provide. There is a second reason for a prologue to the Crown-as-government. One of the recurring themes of this study is the deference shown the executive in all spheres of Canadian politics. Academics and parliamentarians have long remarked on the inversion of theory and practice in parliamentary government, with the executive establishing a hold on the House of Commons, whereas the chief function of the House of Commons is supposed to be to control the executive.2 In addition to the reasons customarily given for the eclipse of legislatures today, there is one which has signal importance for Canada because it is the product of the structure of Canadian government itself. That factor is the Crown, whose effect has been to aggravate legislative decline. The golden age of legislatures is past because the executive is now expected to deal with more and increasingly complex demands from individuals and groups. Thus legislatures may communicate constituents' concerns, but today they are in no position to satisfy them. This was not always the case. Before the arrival of the activist state, as a result of this century's wars and depressions, parliamentary supervision of the executive was feasible. More than feasible, it was necessary; for as a predominantly common law country, there was no direct redress of governmental action available in Canada. Unlike the continental countries, whose civil codes provided for administrative or public law remedies to governmental action, citizens in Canada, as in Great Britain, Australia, and the United States, depended upon recourse to the traditional private law remedies of tort, contract, and negligence. Or they could, and did, look to Parliament. Canada's common law heritage helped mould political attitudes and actions. Unfortunately, there is no

22 The Invisible Crown study that examines this influence, nor is there one that assesses the weight of the common law and Quebec's civil law traditions on political behaviour. From the perspective of the Crown in Canadian politics, the rise of regulatory commissions and the subsequent displacement of parliamentary supervision of executive activity hold special significance, since these commissions, by whatever designation (advisory boards, committees, tribunals), are instruments of the executive whose members are appointed by order-in-council. Early in the century regulatory bodies, such as the Board of Railway Commissioners, set up in 1903, acted as policemen invoking their delegated powers to preserve the status quo, usually as outlined in legislation. By the end of the century such enterprises had proliferated, while at the same time a 'new "control" bureaucracy' of language and human rights commissioners, legal aid lawyers, and rentalsmen, among others, had appeared.3 These officials suppressed legislatures even further, for in addition to their supervisory function they could propose legislation to further the cause they served. In this last instance, the Crown's contribution to executive dominance is direct. More elliptical but arguably of equal importance is the interaction of the Crown and federalism. As already noted, the major conflict in the post-Confederation years between the provincial and federal governments turned on the status of the provinces in the federation. Were they, as Macdonald claimed, mere handmaidens to a superordinate central power, or were they, as Mowat, the chief spokesman for provincial rights, countered, autonomous creations within their jurisdiction, equal in status to the government in Ottawa? In a series of judgments, of which Liquidators of the Maritime Bank (1892) was the most conclusive, the centrist pretension was rebuffed. That much is well known, but from this conclusion other consequences followed. Among these, and crucial for the purposes of this study, was the empowerment of the provincial executive that accompanied the enhancement of the constituent polities of Confederation. In the federalist equation, the provinces were the indisputable beneficiaries of judicial interpretation. It needs to be emphasized, however, that it was the governments of the provinces and not their legislatures who reaped the harvest; for within the expanded provincial universe the executive faced no rivals. Unlike their state counterparts in Australia, who among parliamentary democracies had 'the strongest upper house system,' Canada's provincial second chambers were weak or non-existent.4 In addition, there was in Canada by the 1890s a rigid code of discipline found in both major parties which con-

The Crown 23 tributed to the government's pre-eminence in the popularly elected chamber.5 That executive was exclusively a party body whose members almost invariably came from the same party. These considerations in no small part determined the nature and form of Canada's national political parties. Canada is a federation, and the chief characteristic of its political parties is that they, too, are federations, or at least, congeries of provincial power centres. Thus the regionalism of Canadian politics and Canadian political parties owes something to the Crown. Perhaps it would be more accurate to say that they are indebted to the Judicial Committee of the Privy Council, who in judgments such as Liquidators, found 'the Lieutenant Governor ... as much the representative of His Majesty for all purposes of Provincial Government as the Governor General himself is, for all purposes of Dominion Government.' Had the Macdonald version of federalism triumphed, would the dispersal of power in Canada's national political parties be as strong as it is today? A lot has been written about the Judicial Committee, perhaps too much. In the cumulative force of its opinions it is easy to perceive an example of institutional determinism: Canada's federation is less centralized than its framers intended because of the Judicial Committee's judgments. But one could equally turn the argument around and say that the judgments took the form they did because other features of Canada's federation proved more resistant to centralization than the framers expected. The important point lies not in resolving the contrasting interpretations but in noting the crucial first steps the Judicial Committee took in transforming the provinces from Macdonald's superintendencies to what political scientists a hundred years later have called Small Worlds.6 That transformation owed a great deal to the attribution of a provincial Crown. The Crown endowed the provinces with unlimited potential for action, a reservoir of power which, when exercised in the absence of a common national denominator, heightened the distinctive characteristics of each province evident since its founding. In turn, the contrasting development that ensued further exaggerated provincial distinctions. Paradoxically, the societal mosaic in which Canadians take such pride arose in part because 'only in the provinces was the electorate homogeneous enough to allow the majority principle to work without reserve.'7 The legitimacy of the federal state is tested by its capacity to mediate internal cleavages; the provincial 'states' have never had to face comparable challenges. More particularly, the economic tensions generated in

24 The Invisible Crown federal politics between the haves and have-nots failed to materialize in provincial politics, not because provincial economic benefits are distributed more equitably but because the inequity is invariably transformed into a claim against the federal government. Similarly, the unity or French-English question, which lies at the heart of national politics, has been absent as a continuing divisive factor in provincial debate. Because Canada's principal minority is concentrated in one province (Quebec), the majoritarian principle has prevailed elsewhere, notwithstanding short, sharp, but ultimately futile resistance from numerically small and declining French-Catholic minorities. To speak of the Crown in the foregoing terms grants it more moment than it normally receives in studies of Canadian politics. For that matter, it attributes more significance to the Crown than is found in most studies of British politics where, except for reference to Bagehot's trinity of rights due the sovereign - to be consulted, to encourage, and to warn the ruler's role is generally depicted as symbolic of national unity. That contrast is not new. Canadians (and, again, Australians) accept, and even expect, participation of the Crown in constitutional affairs. This is the product of a colonial inheritance which saw the Crown's representative play a more active role in local affairs than the sovereign played in British affairs. It is also the product of an intense partisanship unalloyed, in Canada's case at least, by mediating restraints such as hereditary second chambers or established social institutions. In Britain there is agreement that the Crown be kept free from political involvement. At every threat of what the British call a hung Parliament (in Canadian parlance, minority government) concern is expressed that the Queen not be placed in a position of having to exercise discretion in the absence of ministerial advice.8 While no one expects the governor general to intervene gratuitously in similar situations, he or she is expected to guarantee the fair operation of the rules of the game and, if necessary, to exercise the discretionary power. One reason for the greater acceptance in Canada and Australia of the potential exercise of the reserve power of the Crown is that they are federations with multiple legislatures where, more often than in Britain, elections have failed to produce a winning party in control of the chamber. Canadians and Australians who have an interest in constitutional matters have been schooled by authorities such as Eugene Forsey and H.V. Evatt to recognize the Crown's role as useful and, on occasion, necessary.9 Paradoxically, the Crown, always at one remove from the sovereign in these countries, has generally been free from strong criticism.

The Crown 25 The Australian republican movement and the Australian constitutional crisis of 1975 must stand as exceptions to this generalization, but in Canada at any time it would be hard to find so severe an interpreter as the British cultural critic, Tom Nairn: The Monarchy is of no real importance whatsoever ... And, the meaning of this for the realm of theory is obvious: who wants to waste time theorizing about something utterly unimportant?'10 The reason for the contrast is that Canadians have witnessed the separation of the person of the monarch from the concept of the Crown. In addition to the absence of the monarch and her court, this is the result of a deliberate policy over the last half-century to Canadianize the office of governor general and, to some extent, replace royal emblems with Canadian insignia. However these actions are assessed and John Diefenbaker for one depicted the latter as evidence of republican sentiment - their effect was to depersonalize (even 'de-monarchize') the Crown. The designation Canadian monarchy became increasingly an oxymoron, the Canadian Crown less so. There is another reason for the separation of monarchy from Crown. However imprecise the concept of 'the constitution' may be in the minds of Canadians, they have for much of this century been familiar with the idea of constitutional change: first, in the measured march to equality of status in the Commonwealth, and later in an accelerated move to reform the institutions and procedures of federalism. All Canadian political parties have pressed for constitutional change, though not necessarily with equal enthusiasm for specific reforms. In this regard Canada has been different from Great Britain, where the Liberals, 'a party for whom constitutional questions formed the very stuff of political life/ were replaced, says Vernon Bogdanor, by Labour in the early 1920s, who with the Conservatives formed 'tightly organized mass parties ... [that] fossiliz[ed] the movement for constitutional change.'11 The growing separation between Crown and monarchy is of practical importance, for as a theoretical principle the Crown still integrates the Canadian polity both vertically, within individual jurisdictions, and horizontally, across jurisdictions. This arid depiction admittedly stands in sharp contrast to the older and more frequently evoked monarchical symbols of unity. Cartier, for example, described his fellow Quebeckers in 1864 as 'monarchical by religion, by habit and by the remembrance of past history.'12 It also expresses little of the sentiment once heard that the Crown, in Vincent Massey's words, 'is a spiritual entity.'13 Which is not to say that Cartier was wrong in his statement or that the late governor general and many other Canadians did not perceive the Crown in this light;

26 The Invisible Crown rather it is to say that there is another meaning to the Crown which has been ignored by social scientists. The Crown is an integral part of a practical form of government, and as such it has a direct and substantive part to play in the lives of all Canadians. The Crown as symbol should not be allowed to cloud that truth now any more than in 1867 when, W.L. Morton said, 'hard-headed calculation/ and not 'conventional loyalty' explained the choice of the monarchical principle by the Fathers of Confederation.14 Adopting Crown in favour of monarchy may be more a semantical preference than anything else; certainly the term Crown is not selfexplanatory. Indeed, in a famous essay, The Crown as Corporation/ F.W. Maitland described it as 'a convenient cover for ignorance/ a subterfuge that denied the medieval unity that embraced king and subject.15 Recent legal writing in Canada suggests that Maitland's prejudice in this matter still has substance: When we use one word to describe the monarch herself, the institution of regal power, the concept of sovereignty, the constitutional head of state, judicial institutions and actors, the cabinet, the executive branch of government, individual ministers, government departments established under legislation, Crown corporations, and individual civil servants, it is not surprising that confusion reigns.16

That confusion is the product of an Anglo-American tendency to take institutions for granted. In consequence, political scientists, for example, are predisposed to study what some of them call inputs (the demands on the political system) rather than outputs (the policies that system produces). Inputs are easier to discern because they tend to be general and public (for instance, demands for social welfare protection) whereas outputs, which are more detailed and if not actually secret, are considerably less easy to scrutinize (delegated legislation, for example). As a result, a lot more is known about the behaviour of political parties than, say, the activities of the public service. The greatest institution of all, the state, is a principal victim of Anglo-American academic passivity. An exception to this generalization is the work of the British political scientist Kenneth Dyson, who has compared Britain, which he labels a stateless society, to continental state societies.17 His findings, based on research confined to Western Europe, confirm the diffuse nature of 'a society that lacks a historical and legal tradition of the State/ Stateless societies, he says are characterized by the strength of pluralism, representation and the debating tradition in the political culture; an instrumental view of government and a

The Crown 27 pragmatic conception of politics, both of which are associated with a passive notion of a neutral... private administrative role; a pervasive informality in politics ... a preference for 'social' models of the constitution ... which emphasize the role of elites rather than institutions ... an anthropomorphic conception of politics and the personalized and private character of the executive.18

Whether these characteristics describe Canada and whether Canada is in consequence a stateless society is not the issue here. The answer would require more historical studies of Canadian administrative norms and structures than have yet been written. Extant publications in this fledgling field suggest both similarities and differences between Canada and Britain in the mid-nineteenth century: 'Colonial politicians exhibited a marked reluctance to delegate significant power to full-time experts ... [while] in England at this time bureaucratic departments staffed by experts proliferated/19 Nevertheless, by inference, Dyson reveals the undeveloped nature of state identity in a colony like Canada. But Canada was under a double handicap: state identity was weak within its boundaries, and non-existent outside of them. He argues that 'at the level of international relations the English ... were able to recognize themselves as a state/ because they acknowledged no 'external authority as superior/20 This was not true of the dominions, whose external personalities began to develop only in the period after the First World War, following agreement on new constitutional conventions to regulate British Commonwealth foreign relations.21 This change in status, it must be emphasized, proceeded from new conventions and not legislation; the Statute of Westminster was silent on the matter. The retention of foreign affairs in the hands of the imperial government had been one of the exceptions to the general grant of local self-government recommended by Lord Durham in his famous report of 1839; the others had been external trade, disposal of public lands, and amendment of the colony's constitution.22 A century later remnants of that reserved power persisted but only at the pleasure of the former dominions. References to the Queen in Canada's external relations, as in the appointment of Canadian ambassadors and in the signing of letters of credence, finally ceased in the 1970s. As regards treaties, the secretary to the governor general reported in 1971 that 'Canada has not signed any international Treaties [since 1947] at Head of State level. The Governor in Council signs Instruments of Full Power for Canadian signatories to such agreements/23 However, in international relations the English were more than a

28 The Invisible Crown state; they were, from the time of Henry VIII, an empire. And if the Crown played the surrogate role of state in the stateless society that was, first, England and, then, Great Britain, it came to assume a unique role in the Empire as well. Berriedale Keith's aphorism that 'the Crown has always been imperial' had a constitutional significance that only gradually became manifest to the mother country and the old dominions.24 For four hundred years the Crown, more than any other institution, provided the undisputed ligament of unity, even into the post-imperial world of the Commonwealth whose member nations, republics and monarchies alike, recognize the British sovereign as 'the symbol of the free association of its independent member nations and as such Head of the Commonwealth.' Until the dominions were given room to create their own international personality in foreign affairs, the principle that the Crown was one and indivisible limited their autonomy. This restraint was made abundantly evident during the conduct of the First World War, and in the negotiations leading to the peace treaty and in the League of Nations that followed. The historic Balfour Report, named after the British foreign secretary of the day and chairman of the committee of the Imperial Conference of 1926 that presented the report, enunciated a 'common allegiance to the Crown' as one of the conditions then obtaining for membership in the British Commonwealth. But as the dominions individually entered the international arena, that common allegiance implied less the unity of the Crown than its opposite, divisibility. This 'vital modification,' says Keith, brought about by 'mere prerogative action without even a communication to Parliament/ set in motion a train of events that eventually made possible the Canadianization of the Crown.25 The question whether the Crown was divisible elicited much legal debate in its day but little non-legal appreciation of the practical significance that might accompany an answer. Vincent Massey, not trained in the law, described the doctrine as a 'type of mental gymnastics that delights only the constitutional lawyer'; on occasion, even a legal mind could grow frustrated with the 'verbally imprecise mysticism' that surrounded the topic.26 Canadian and Australian observers especially had reason to tire of the debate, as well as of the fiction of an indivisible Crown. Within their own boundaries and for decades preceding these changes in dominion status, the divisibility of the Crown was a practical reality if not a coherent theory. The Privy Council had found land in each province to be vested in the provincial Crown; it had allowed provincial legislatures to assume such privileges as they deemed necessary; and, in the Liquidators

The Crown 29 case, it had pronounced in sweeping terms a provincial status equal to that of the central authority.27 The implication of these and other opinions for the theory and practice of Canadian federalism has gone largely unstudied by social scientists.28 Yet what was happening here was something more than a redistribution of powers between the federal and provincial levels of government, or an emasculation of the residual power, or a confinement of federal jurisdiction to the twenty-nine enumerated heads of section 91 of the Constitution Act, 1867: the articulation of the Crown and federalism was in the process of being realized. Only once during the Quebec Conference in 1864 did the drafters overtly confront the contradiction posed by the two principles their scheme sought to reconcile: the centrifugal principle of federalism and the centripetal principle of monarchy. And even at that point, it was a matter only of how these principles intersected in the management of central institutions. The issue was the appointment of extra senators in case of a deadlock between the two houses of Parliament. Then, and only briefly, some members recognized that 'we are now touching the very life of the whole scheme/ The prerogative of the Crown/ said one, 'has been ... used ... always for good. [But] this new fangled thing now introduced, 72 oligarchs [the Senate], will introduce trouble/ As a resolution to the conundrum, Macdonald proposed that additions to the Senate be made 'in equal proportions from each division/ Nonetheless, he acknowledged: 'That is a limit to the prerogative/29 Within thirty years of the conference, as a result of Judicial Committee opinions, the unitary Crown and its prerogatives had fractured and become territorially dispersed. The new framework for a compound monarchy took its place. These judgments, which turned as much on questions of privilege and precedence as on fields of jurisdiction, in the words of Bora Laskin, bifurcated the Crown. In so doing, it is argued here, they established the basis for the intergovernmental rivalry that marked Canadian federalism a hundred years later.30 That rivalry is not only, or even principally, about powers but, as before, about intangibles - this time competing visions of Canada. The purposive role that the Fathers of Confederation had envisioned for their new federal government - one that involved building, expanding, and providing - seemed increasingly to be viewed by the provinces as theirs, while the federal government turned ever more to the tasks of unifying, guaranteeing, and protecting. It would be too much to claim that the division of the Crown alone was responsible for this seismic shift in the foundation of Canadian federalism. It is not, however, an exaggeration to say that the

30 The Invisible Crown discovery of the Crown in the provinces empowered rather than restrained their governments, and that the effect of that judicial revelation on the central government has been, except in periods of emergency, the opposite. To maintain the indivisibility of the Crown in the face of these judgments required a sophistry that further clouded the meaning of the Crown and the concept of the state in Canada: title to property was vested in Her Majesty but 'different administering persons or bodies [were acknowledged to] wield effective control/31 Like 'an exercise in arithmetic/ abstract legal dichotomy sought to marry 'the purity of English constitutional theory' to the federal division of powers. Yet it belied the disordered politics of federalism, which more often trespassed upon than respected these conceptual, even fictional, boundaries.32 Even its resolution proved problematic, as witness Lord Denning's pronouncement in Regina v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta and Others: 'I have said that in constitutional law the Crown was single and indivisible. But that law was changed in the first half of this century - not by statute - but by constitutional usage and practice. The Crown became separate and divisible according to the particular territory in which it was sovereign/33 In the rivalry of the Crowns which was supreme? The Supreme Court of Canada has said it is the federal Crown, because 'territoriality is a limiting factor in the exercise of provincial [but not federal] legislative power/34 The imperial Crown became divisible because the Empire evolved into a Commonwealth of autonomous member states. The Canadian Crown divided within the confines of a nation state, and for this reason the fission could not be so complete. The Crown's central place in the structure of Canadian government rests upon the prerogative powers it holds. That statement requires elaboration, for everyone knows that the sovereign, through her representatives, reigns but does not rule; that virtually everything done in her name is done on the advice of ministers responsible to the people's elected representatives. Responsible government is the heart of Canadian democracy: not representation by population, hobbled by grandfather clauses and other insurances to protect areas of declining population, and not popular sovereignty - the weakness of the concept of constituent power in Canada is a consequence of the principle that the Crown is the source of authority. Thus if, as the High Court of Australia once said, 'the royal will is to do as Parliament desires/ wherein lies the Crown's superior position and power?35

The Crown 31 The short answer is that it lies in the political executive (cabinet) and especially in the prime minister, who have co-opted the prerogative power. Politicians have long recognized this truth, as Sir Leonard Tilley's words, quoted at the opening of this chapter, testify. The deference shown the governmental Crown at the centre and in the provinces is a consequence of the transfer of the prerogative from the monarchical Crown.36 True, not all of the prerogative has been transferred; some, in the form of reserve powers, remains in the hands of the Crown's representative, to be exercised not on advice but at the Crown's discretion. These powers are few in number, mainly associated with dissolving Parliament and with appointing the prime minister, and usually are exercised in an uncontroversial manner. But that they exist, and that they are, as Eugene Forsey repeatedly claimed, 'indispensable to the working of Cabinet government/ are themselves indisputable statements.37 The extent of the discretion and the manner and conditions of its exercise are important subjects, and reference will be made to them in later parts of this book. However, the subject of the reserve powers has been thoroughly studied in Canada by Forsey, J.R. Mallory, and others; there is no need for another book on the matter.38 Rather, the concern here is the wider question of the prerogative and its enhancement of government in the Canadian system. Thus, a distinction needs to be drawn between the prerogative on the one hand and the reserve powers of the Crown on the other. This distinction is important, because the prerogative, it is argued here, is a vital part of the explanation for executive dominance and because analysis of the reserve powers, as important as those powers may be, depreciates the significance of the prerogative in Canadian politics. So infrequently are the reserve powers used in an unpredictable manner that the conclusion may be drawn that the prerogative, of which they are a part, is limited in its scope and lacking in vitality. This is not true. The prerogative is extensive and it is vital; it is also fluid, shifting ever more out of the grasp of the Crown's ministers and into the hands of its principal adviser, the prime minister. One further limitation comes from identifying the prerogative with the reserve powers of the Crown. When those powers are used, and are publicly known to have been used, as in Lord Byng's refusal of Mackenzie King's request to dissolve Parliament in 1926, or in the dismissal of the Commonwealth government by the Australian governor general in 1975 (when, in the face of an obstructionist Senate, the prime minister couldn't carry Supply through Parliament but at the same time refused to resign), the controversy over the Tightness of the action is so great as

32 The Invisible Crown to imperil future use of the discretionary power. In other words, the reserve powers appear, correctly or not, to be a wasting resource. That is the basis of the concern of one constitutional scholar about the consequences of the Australian crisis: 'I wonder whether the Crown could easily absorb another such crisis, however justifiable the Governor's decisions might be from a purely legal point of view/39 One criterion for defining the prerogative powers is imprecision. In his study of the British monarchy, Vernon Bogdanor has written that 'it may be inherent in the notion of constitutional monarchy that these powers remain undefined in scope/40 Dicey's definition, that the prerogative is 'the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown/ shares that quality, as does John Locke's depiction of it two centuries earlier, as 'the power to act according to discretion, for the publick good, without the prescription of the law, and sometimes even against it/41 This is why the prerogative remains more alive in foreign than domestic affairs; because international politics are less controlled by a regime of law, the executive is acknowledged as the polity's sole voice. Both Dicey and Locke communicate what is crucial to understanding the prerogative: it rests with the sovereign; it is part of the common law (though historically it has been viewed as non-justiciable, a limitation now in question); and it may be invoked to restrain or redress unintended effects of statute law. The unique status of the sovereign explains the singular position of the prerogative. In turn, the prerogative has been cited by authorities to explain some cardinal features of the British (and by extension the Canadian) system of government, among which are 'executive domination over the life of Parliament' (Parliament was the 'personal creature' of the sovereign) and the 'formidable ... degree of discretionary power' placed in ministerial hands and free of the restraint the courts exercise over executive actions based on statutory power.42 Personalized and political, the prerogative thus stands in permanent contradiction to the rational, administrative state and as a perennial object of reform by auditors and political improvers alike. Canadian preoccupation with the reserve powers of the Crown is the legacy of colonial sensitivity to restraints on self-government (a potent memory, it could be said, of the struggle of the 1830s and 1840s) and its opposite - concern that party government, the Canadian form of selfgovernment, might become unrestrained and itself require an impartial umpire. Every book that discusses government in the British North American colonies devotes its early pages to matters touching the pre-

The Crown 33 rogative: its transfer to the colony by instruments of the prerogative themselves (that is, Letters Patent, and the governor's Instructions and Commission), and the use of the prerogative, first, to protect colonial and British interests as long as the colony was politically immature, and second, to create colonial constitutions. All of the early British North American colonies eventually had 'prerogative constitutions/44 The Quebec Act was innovative on several counts, but constitutionally so for the supersession of a government based on prerogative by one based on statute. The act was necessary because it failed to provide the colony with the Assembly promised in the Royal Proclamation of 1763, and only a statute could undo a promise made under the prerogative.45 The executive's prerogative powers did not disappear, but that act and succeeding statutes in 1791, 1840 and 1867 meant that the constitutions of the colonies (and then provinces) along the St Lawrence, and of the federation, differed fundamentally from those of the maritime colonies. This difference and the demotion 'of a valuable and admirably working, constitution [inherited] from their ancestors' contributed to the strong opposition Nova Scotians expressed at Confederation.46 Demoted perhaps, but the prerogative constitutions of Nova Scotia, New Brunswick, and Prince Edward Island continued into the new federation and remain to the present day. The pre-Confederation lineage of these units of the Canadian federal system stands in marked contrast to the experience of the first fourteen states of the United States, who between 1776 and 1798 'wrote and approved a total of twenty-five constitutions.'47 This difference in constitutional ferment in units of the two North American federations is all the more striking since the Americans were reacting to the removal of a Crown-appointed executive and attempting to assure popular control of the new state legislatures. Aside from the reserve powers of the Crown, discussion of the prerogative is seldom found in non-legal texts in Canada. In his encyclopedic Government of Canada, R. MacGregor Dawson devoted attention to discussing the transfer of the power to Canada and to its Canadianization, that is to the Letters Patent of 1947, which made a complete delegation of all the sovereign's power to the governor general. But as late as 1970, the fifth edition of this text noted that 'substantial parts have not in practice been exercised by the governor general, but remain in effect with the Queen acting on the advice of the Canadian cabinet.' Moreover, the description provided by Dawson is of the part prerogative plays in English government. This, he says, includes 'the appointment and dismissal of public servants; the summoning, prorogation and dissolution

34 The Invisible Crown of Parliament, the creation of peers and conferring of titles of honour; the pardoning power; the power to do all acts of an international character, such as the declaration of war and neutrality, the conclusion of peace, the making and renouncing of treaties, and the establishment or termination of diplomatic relations/48 Some, but not all, of these (the appointment and dismissal of public servants and the creation of peers) apply to Canada. What is missing from this discussion is not specific Canadian examples of the prerogative, but the acknowledgment that the prerogative cannot be enumerated, that its very imprecision confers on the Crown's advisers discretionary power of great breadth. The extent of that discretion deserves an explanation which can be better made in succeeding chapters devoted to the executive, legislature, the civil service, and the judiciary. At this time it is enough to say that much of modern Canadian politics relates to issues that centre on government use of the prerogative or on questions that arise from that use. The demand for freedom of information legislation results from a belief that government needs greater scrutiny; so, too, does the demand for stronger and more effective oversight of the executive by parliamentary committees. Recourse to the courts reflects a similar unease at the reservoir of discretionary power in the hands of the executive. The Charter of Rights offers a new basis for challenging the prerogative, as in the Operation Dismantle case, where the testing of United States cruise missiles in northern Canada was claimed to be a breach of section 7 rights to 'life, liberty and security of the person/ Although the Supreme Court ultimately refused to review this particular cabinet decision because the asserted threat was 'too uncertain, speculative and hypothetical/ it also refused to 'relinquish its jurisdiction either on the basis that the issue is non-justiciable or that it raises a so-called "political question"/49 Since 1896 an order-in-council has enumerated as a special prerogative of the prime minister the right to make recommendations to council to dissolve and convoke Parliament and to appoint the following persons: 'Privy Councillors; Cabinet Ministers; Lieutenant-Governors; Provincial Administrators [who in the absence of lieutenant-governors discharge their duties]; Speaker of the Senate; Chief Justices of all courts; Senators; Sub-Committees of Council; Treasury Board; Committee of Internal Economy, House of Commons; Deputy Heads of Departments; Librarians of Parliament; Crown Appointments in both Houses of Parliament; Governor General's Secretary's Staff/50 Meetings of a Committee of the Privy Council (which is the constitutional status of cabinet) are

The Crown 35 also at his call. These are broad powers and from the perspective of federalism have, as already noted, elicited criticism; one of the contentious provisions of both the Meech Lake Accord and the Charlottetown Agreement would have limited the prime minister's choice in the matter of Supreme Court and Senate recommendations to nominations put forward by the provinces. But the personal powers of the prime minister embrace more than this enumeration of his special prerogatives would suggest; they include other powers that adhere to the office as a result of constitutional convention and political practice. The prime minister's privileged role in the determination of the budget and his absolute authority over the structure and membership of cabinet committees are two primary examples.51 What is at issue here is nothing less than the prerogative to choose unrestrained by any non-executive review or confirmation process. And this prerogative of choice is not limited to the prime minister but extends, in the first instance at least, to ministers who exercise a determinative influence in recommending appointments to the myriad of regulatory and advisory boards and commissions.52 All that is said in this and preceding paragraphs about the prerogative and the prime minister and his colleagues, it should be emphasized, applies with equal force to the provincial premiers and their colleagues. It is more than a century since Dicey wrote his Law of the Constitution. Like Bagehot on the cabinet, Dicey's treatise on parliamentary sovereignty has become the measure in its field, but with this exception: for federations such as Canada and Australia there is no parliamentary sovereignty that is not jurisdictionally qualified. It should, therefore, come as no surprise that Dicey deprecated this form of government in three memorable aphorisms: 'Federal government means weak government'; 'Federalism tends to produce conservatism'; and 'Federalism means legalism.'53 Generations of writers on federalism have felt the need to refute these charges; none is required here since this is a work on the Crown. Dicey's study is nonetheless germane, for he has more to say about the prerogative than any theorist of the past century. The pity is that he said nothing about federalism and the Crown. Indeed, in the brief paragraphs devoted to Canada, he discerns that 'the Constitution of the Dominion is in its essential features modelled on that of the [United States].'54 Modern assessors find Dicey wanting for his lack of concern for the realities of political power. By this they mean that Dicey's attribution of sovereignty to Parliament misrepresents the nature of political power, which at the end of the twentieth century is diffused rather than concen-

36 The Invisible Crown trated in formal political institutions. They also say that he overemphasizes the importance of the prerogative.55 Here the emphasis of the criticism is misplaced. Dicey writes that the survival of the prerogative, conferring as it does wide discretionary authority upon the Cabinet, involves a consequence which constantly escapes attention. It immensely increases the authority of the House of Commons, and ultimately of the constituencies by which that House is returned ... The Ministry in all matters of discretion carry out, or tend to carry out, the will of the House (p. 466).

Canadian experience demonstrates no easy congruence between the action of executive and the will of the legislature. Instead, there is rising concern at the space that exists between them, and at the executive's predominance. In another passage, Dicey speaks more to modern parliamentary concerns when he says that if the House of Lords enjoyed the same rights as the United States Senate vis-a-vis presidential actions then the change in our institutions would be described with technical correctness as the limitation of the prerogative of the Crown as regards the making of treaties and of official appointments. But the true effect of the constitutional innovation would be to place a legal check on the discretionary powers of the Cabinet (p. 466).

Dicey's view of the prerogative has become so accepted that British judges, it is said, 'have fallen into the habit of describing as "prerogative" any and every situation of government action which is not statutory.'56 A contrary, and more limiting, view says that because the prerogative consists of legal power, to be validly exercised it must concern itself with matters that are themselves legal. The use of the prerogative does not legitimize that which is not legal. Nor does it extend to mere administrative action or to the appointment and dismissal of ministers. That economical view of the prerogative is both supported and rejected by court decisions such as Operation Dismantle, which claim, on the one hand, that there are limits to the prerogative which the courts may determine and, on the other hand, that though open to determination, the limits may prove impossible to discern. A remarkable demonstration of the imprecision surrounding the prerogative appeared in a bill to devolve legislative powers to a Scottish

The Crown 37 Assembly, introduced by the British Labour government in 1978. One clause of that bill provided that 'Her Majesty's prerogative and other executive powers' might be exercised by ministers of the Crown responsible for Scottish affairs. A notable debate in the House of Lords focused on the distinction between prerogative and other executive powers and on the apparent contradiction it posed to Dicey's definition of the prerogative as the residue of discretionary power. The Lords also questioned whether, constitutionally, the prerogative could be transferred by statute to a politician, as there was no precedent for either innovation. In the eyes of the noble lords, the clauses in question amounted to 'a constitutional abomination/ because they would grant statutory prerogative powers to ministers who did not, and could not under the terms of the devolution bill, advise the sovereign.57 As a result of criticism in and outside of the Lords, the bill was later amended to provide for a Scottish executive who would exercise the prerogative 'on behalf of the Crown. That the prerogative at this late date posed so many imponderables for the mother of parliaments offered at least some consolation to the Canadian Parliament which, during the same period, wrestled with similar questions as a result of the federal government's singular attempt to Canadianize the Crown by constitutional amendment.

3

Canadianizing the Crown

His Excellency rests assured that you will understand that the Monarchy in Canada is somewhat different from the Monarchy in Great Britain and that the actions which you find reprehensible on the part of the Governor General are not as such degradations of the Monarchy but are in fact an effort to adapt the Monarchy to a Canadian context. Michel Lussier, private secretary to the governor general, to Mrs P. Williams Arnold, 23 February 1971

A substantial basis of the post-Confederation system of government is to be found in the pre-Confederation system of government. Of no aspect of governing is this statement more true than the structure and operation of the executive. In the colonies there had been governors and executive councils, and following the grant of responsible government the latter had come more and more to conduct their business without the respective governors present. The withdrawal of the governor was by no means total (well into Confederation the governor general was present at a number of formal meetings of the Queen's Privy Council for Canada), but the separation of the dignified from the efficient executive (or in Lowell's terms, the governmental from the monarchical crown) proceeded without interruption. As with the introduction of the principle of responsible government, so with the transmutation of structures, all was accomplished by convention and precedent and not by formal legal change. The process of evolution, constitutional or otherwise, discourages exactness as to when new forms replace old; so, too, does the language

Canadianizing the Crown 39 employed to describe events whose significance is as often abstract or representational as it is explicit or practical. In consequence of this imprecision, the student of early Canadian politics owes a debt to authorities such as Eugene Forsey and J.R. Mallory who, among others, have studied these matters.1 In a series of seminal articles, they describe the emergence of modern cabinet government in Canada, and by inference in the provinces, although on this last point Mallory cautions: The existence of formal Councils presided over by the Lieutenant-Governor after Confederation is in most provinces uncertain. One thing only is clear, no record or recollection of such Councils exist in any province except Newfoundland in recent years/2 As with so much that surrounds the work of cabinet, knowledge is inexact because of traditions of secrecy and cryptic record-keeping. R. MacGregor Dawson signalled the source of the difficulty when he noted that 'cabinet, lacking any legal status of its own, masquerades as the Privy Council when it desires to assume formal powers/3 The record of cabinet's work is to a great extent the sum of the decisions taken by the governor-in-council in the form of orders or minutes of Council. There is no complete transcript of cabinet discussions which preceded the advice that led to these formal instruments. The absence of a substantive record of deliberations is one reason for the poverty of analysis of this important institution, an omission that stands uncorrected by first-hand accounts. For cabinet ministers on retirement are singularly unmoved to write memoirs of their years in office. In this regard, Canadian politicians differ from their British counterparts, and Canadian understanding of government is correspondingly impoverished.4 The analysis of half a century ago remains substantially unaltered by more recent published investigation; yet, if a late prime minister is to be believed, that work requires revision. Arthur Meighen read without enthusiasm an account of cabinet by R. MacGregor Dawson, which later became a chapter in Dawson's classic work on Canadian government: No doubt I am prejudiced, but really I do not see very much in Professor Dawson's lengthy dissertation. There is very little in it that one can say is wrong, but as well very little that is of real value. The most of it deals with matters of little or no importance, and unduly exalts these matters into serious principles of democratic government.5

If knowledge of the highly visible cabinet remains oblique, then study of the interstice where the efficient approaches the dignified executive is

40 The Invisible Crown almost totally obscure. It is true that for all practical purposes the Committee of the Privy Council that advises the governor general has been synonymous with the cabinet. Until the government led by Jean Chretien (November 1993), it has rarely been Canadian practice to make a distinction between members of the cabinet and ministry.6 That disposition, which helps to explain a tradition of large cabinets in Canada (as opposed to Great Britain), is not unrelated to the pre-eminence of the executive over the legislature. Similarly, it explains 'the provision in our statute law for the exercise of executive authority by the Governor-inCouncil' rather than by individual ministers.7 The Canadian cabinet is an institution of federalism as well as of government, and its members are selected with geographic considerations in mind. The principle of inclusion, not exclusion, thereby dominates, thus strengthening the demarcation between government and legislature. The British practice of excluding some ministers from cabinet or of empowering individuals rather than the collectivity would, so it was argued before the Chretien innovation, impede the Canadian cabinet in its role as a representative body. Identity of composition between cabinet and the formal committee of Council should not disguise the reality that it is the prime minister, or premier in the case of a province, who communicates privately to the Crown's representative. Lord Lisgar (governor general, 1868-72) summarized the personal quality of the contact: The promise was given at the instance and in accordance with the opinion of the Prime Minister, who is the authorized medium of communication between the Privy Council and the Governor General and who is always understood as speaking the opinion of that Council to the Governor General/8 The relationship between the governor general (or lieutenant-governor) and his or her first minister is seldom probed in the available literature. Good manners, constitutional rectitude, even personal self-interest, have encased this relationship in a lustreless veneer of generalities which researchers find difficult to pierce, at least so far as to learn something of substance about the heart of constitutional monarchy in Canada.9 The stamp of pre-Confederation practice marked the post-1867 relationship of the governor general and the Canadian prime minister. Until 1878, when the office was established by the issue of Letters Patent, the governor general's position continued as that of earlier governors to be based on convention. The Constitution Act, 1867, does not create the office; instead section 9 declares that The Executive Government and Authority of and over Canada is ... to continue and be vested in the

Canadianizing the Crown 41 Queen/ However, section 12 specified that 'all Power, Authorities, and Functions which ... are at the Union vested in or exerciseable by the respective Governors or Lieutenant Governors of those [uniting] provinces ... shall ... in relation to the Government of Canada, be vested in and exerciseable by ... the Governor General/ With the transfer of colonial executive powers, the composition of the federal executive was achieved, making the governor general, in the words of one of his later secretaries, 'an essential part of the Canadian Federation/10 Essential, and superior to the provincial lieutenant-governors who, despite what Sir Joseph Pope described as 'unfair and unfounded pretensions/ never seriously challenged the representative of the Crown in Canada.11 Although pretentious, the lieutenant-governors never duplicated the success of the premiers in their conflicts of jurisdiction with the federal government. Nor did their rivalry with the governor general approach in ambition or tactics the schemes of their Australian counterparts, the state governors, whose jealousy of that country's governor general led them sometimes 'to act as a sort of Agent for the States to fight their battle with the Commonwealth/ action one Australian governor general sarcastically described as 'a nice position for a direct Representative of the King to occupy/12 Of course, the Canadian lieutenant-governors, appointed by the governor-in-council and not, as Australian state governors, directly by the monarch, were never acknowledged to be direct representatives of the sovereign; and that made all the difference in the realm of the formal executive. After Confederation two evolutionary, constitutional streams directly touching the governor general are discernible: one begins in 1867, the other has its source a quarter of a century earlier in the struggle for responsible government. The first concerns the growth of Canadian (or, more generally, Dominion) autonomy, eventually to be recognized in the declarations and work of the imperial conferences of 1926 and 1929, and by the Statute of Westminster of 1931. The second - the assertion of political or governmental control over the monarchical Crown - though older in origin becomes, after 1867, in a sense tributary to the first. The streams merge in the post-Confederation period and circle around the office of governor general because, until 1926, the governor general functioned in a dual capacity: as representative both of the sovereign and of the government in the United Kingdom. Understanding the Crown and the government of the day requires familiarity with these events for several reasons. As already noted, for many Canadians constitutional monarchy is seen either as irrelevant or

42 The Invisible Crown as largely symbolic. Yet that interpretation severely underestimates its significance for Canada. In addition to the contribution the Crown may have made to national unity, it exercises a direct and practical impact on the operation of government in Canada. Why it does, despite the achievement of an autonomy which some observers say has 'made of Canada a republic in all but name/ and despite the overwhelming dominance of the political executive, cannot be understood without some acquaintanceship with the evolution of the office.13 Not least, it will be argued, because the Crown in Canada and the stages through which it has passed are themselves part of a public policy - the Canadianization of the Crown - which has been very much the product of the will of successive governments. An excursion into history is thus necessary, and the rest of this chapter will recount that journey in three instalments: the road to autonomy, Canadianization of the Crown, and the triumph of political (cabinet) dominance over the Crown. It must be recognized that this division is artificial, for it disentangles a skein of events whose true meaning lies in their interrelationship. Yet unless the attempt is made, the importance of the single threads remains concealed. THE ROAD TO AUTONOMY

A short account of the autonomy procession is clearest if the ultimate destination is known at the outset. Canadian politicians, like other Dominion leaders, wanted in imperial questions what they had long sought domestically - the right to tender effective advice in all matters affecting them. That right and another, of direct access to the Sovereign, meant that no intermediary or third party would intervene to veto, vet, or otherwise impede the translation into policy of Canadian advice to the Crown. The intermediary in question was the United Kingdom government, and the road to autonomy meant freedom from United Kingdom control in all matters in which the Canadian government wanted freedom. This did not necessarily mean immediate autonomy; in the case of an indigenous amending formula for the Constitution Act, voluntary dependence on the British Parliament continued until 1982. (On a comparative note, one of the principal differences between the Canadian and Australian federations rested in the direct access to the Crown in Great Britain enjoyed by the states of the Commonwealth. This continued until the passage of the Australia Acts in 1986, which removed all statutory and royal power over state governors, save for their continued appointment by the sovereign on advice of the state governments. As a

Canadianizing the Crown 43 result, for most of the Commonwealth's history, says Australian political scientist Geoffrey Sawer, the states 'declined to join with the Australian Government and Parliament in the various steps towards the development of legal independence/ This produced, as other commentors have noted, 'a bizarre situation in which the federation ... became independent of the United Kingdom, while its component parts ... remained colonies of the United Kingdom.')14 At Confederation an explicit restraint on Canadian autonomy took the form of eight classes of legislation upon which the governor general's Instructions required him to reserve the royal assent; that is, to refer the bills in question to Britain for a decision on assent. The items so affected included, among other subjects, divorce, legal tender, imposition of differential duties, and control of the military. Between 1867 and the issue of Letters Patent in 1878, when obligatory reservation ceased, twenty-one bills were reserved for imperial assent. (No similar restraint applied to Australia's governor general after the Commonwealth was created in 1901, for by that time reservation, discretionary as well as obligatory, was considered obsolete in relations between Britain and the dominions.) This is not to say that the reservation and disallowance powers provided for in sections 55 to 57 of the Constitution Act no longer exist. They do, and it is interesting to speculate why they were not removed in the major constitutional reforms of 1981-2 if it was generally agreed that they were constitutionally obsolete. By leaving them untouched, they have become entrenched and subject to the unanimity provisions of the current amending formula. Eugene Forsey thought that the 'Government of Canada wanted to keep the power to disallow provincial Acts, and, as that power is tied to the British Government's power to disallow federal Acts [section 90], it did not ask for the repeal of section 56, which would have automatically abolished the federal Government's power to disallow provincial Acts.'15 The failure to remove these powers when the opportunity arose - and it should be remembered that the Trudeau government some years before had offered to relinquish them - is paradoxical from the point of view of symbols of autonomy. And the road to that destination is posted with just such symbols. Reservation was exercised only once by a Canadian governor general after 1878. It remained, nonetheless, a part of his prerogative, a fact the government seemed initially not to appreciate until the Marquis of Lome (1878-83) informed it of the distinction between optional and obligatory reservation, and warned it that to assume the power was

44 The Invisible Crown obsolete would lead to 'an unfortunate docking of their own powers/16 In itself, this incident was unimportant, except for what it signified: that the government at this time identified the prerogative as a matter relevant to relations with the imperial power and thus to be abandoned willingly in the promotion of Canadian autonomy. Edward Blake, minister of justice in the Liberal government of Alexander Mackenzie, did more than anyone to press for the removal of the obligatory reservation provisions in the governor general's Instructions. And his view of the right relationship between the Crown's representative and his Canadian advisers allowed little room for gubernatorial intervention: The effort to reconcile by any form of words, the responsibility of Ministers under the Canadian Constitution with a power to the Governor to take even a negative line independently of advice cannot, I think, succeed/17 Blake's assessment illustrated the anomaly embedded in the concept of self-governing colonies, one that was to persist for half a century as Canada and the other self-governing parts of the Empire asserted control of affairs touching their interests. It is unnecessary here to detail the instances where this occurred, since the concern of this study is to emphasize the constitutional objective of making all policy affecting Canada subject to Canadian ministerial advice. By the time of the First World War friction was limited to matters having an external dimension, directly in the case of management of the war, or indirectly in policy areas such as Canadian immigration legislation, or even provincial labour legislation. A case in point was a Saskatchewan act of 1912 that prohibited employment of white females by Orientals which, because of its discriminatory provisions affecting Asiatics, conflicted with imperial treaty obligations. In the inter-war period the pressure to establish an external personality for the dominions mounted as their diplomatic competence grew. Congruent with that ambition was the desire to end the governor general's role as representative of the United Kingdom government and to make him solely the representative of the Crown. At the 1926 Imperial Conference it was agreed that 'it would not be in accordance with constitutional practice for advice to be tendered to His Majesty by His Majesty's Government in Great Britain in any matter appertaining to the affairs of a Dominion against the views of the Government of that Dominion/18 From that date, the governor general ceased to report to a United Kingdom minister, the secretary of state for dominion affairs, and reported directly to the sovereign. The disengagement of British political involvement with the Crown in Canada, which had for some time in practice been a reality, was thus rec-

Canadianizing the Crown 45 ognized by a change in procedure and not in a statute law. One final modification in convention to make Canadian ministerial advice paramount in the matter of the Crown remained: the selection of the governor general. Before 1926 the appointment was the responsibility of the British government; afterwards, Canadian involvement grew, markedly in the selection of Lord Bessborough in 1930 and determinatively in the choice of his successor, John Buchan (Lord Tweedsmuir) in 1935. The details of the Canadianization of the procedure, although of course the sovereign continued to make appointment, are fully discussed in an article by J.R. Mallory.19 As he shows, the nomination of Buchan, on the eve of the 1935 general election, proved possible only when Lord Bessborough intervened and secured agreement between the prime minister, R.B. Bennett, and the leader of the official opposition, Mackenzie King. As he also demonstrates, Canadianization of the selection process, for Mackenzie King at least, was tantamount to politicizing it as well - an attitude he had revealed a decade earlier during the constitutional crisis of 1926. The road to autonomy in Canada's relations with Great Britain led in Mackenzie King's mind to subservience of the formal, monarchical Crown to the governmental and political Crown. And in 1935 Mackenzie King was about to lead the Liberal party into a very long period of office. CANADIANIZATION OF THE CROWN

If the drive for autonomy employed symbols to achieve a change of form and thereby assure Canadian ministers a monopoly on advice to the sovereign, the policy of Canadianizing the Crown equated forms with symbols and elevated the governor general over the sovereign he represented. The word policy must be used with caution, for until the Trudeau government's legislation in 1978 (Bill C-60), which would have named the governor general 'the First Canadian' (section 44), no government, including that of Trudeau, had publicly acknowledged as its goal the Canadianization of the office. Steps in this direction before 1970 were both less methodical and less comprehensive than afterwards. The new Letters Patent in 1947 made a complete delegation of the monarch's powers to the governor general. This was seen as desirable in Canada, for in the absence of such a sweeping transfer of authority and in a situation where the sovereign was incapacitated, 'some functions of the Canadian Crown would, in order to be constitutional, have to be expressed by the British Counsellors of State' under the Regency Act of

46 The Invisible Crown 1937.20 It was not until the mid-1970s, however, that the governor general exercised the royal prerogative in all areas of Canada's international relations (for example, in the commissioning of Canada's ambassadors and high commissioners). In 1952 the first native-born Canadian, Vincent Massey, was appointed governor general on the advice of the St Laurent government; Mackenzie King had contemplated but did not nominate a Canadian in 1940 following Lord Tweedsmuir's death and, again, as a successor to the Earl of Athlone at the end of the war.21 But with no written constitution on which to inscribe a national point of view, if such could be said to exist in the matter of the Crown (in 1952, St Laurent reported the Queen had 'graciously declared [to himl that her esteem for the Canadian people was not restricted to the Englishspeaking citizens') the policy of Canadianization was better described as an attitude of mind, one which British observers at the outset attributed to 'the slough of commonplace republicanism.'22 On the dictum that 'he could never be criticized for a speech he did not make/ Mackenzie King sought to keep the governor general out of all government matters, resenting even his monthly 'communication with Buckingham Palace on Canadian affairs/23 St Laurent, less suspicious than King and more determined to promote Canada's 'national status,' encouraged discussion of a national anthem, a distinctive flag, and a domestic amending formula for the Constitution Act. He appointed also the Royal Commission on National Development in the Arts, Letters and Sciences (the Massey Commission). Once Massey became governor general, the prime minister acquiesced under gentle vice-regal pressure in many of the commission's recommendations creating, for instance, the Canada Council and establishing a scheme of university grants.24 Diefenbaker nominated the first French Canadian, Georges Vanier, to the post, thus appearing to confirm here as in other high Canadian offices such as the speakership of the House of Commons, the principle of alternation between representatives of the two founding peoples. Diefenbaker himself denied that Vanier's appointment 'constituted a precedent that henceforth ... Governors General should alternate.'25 Two decades later, and the same year that a research study for the Task Force on Canadian Unity (Pépin-Robarts Commission) proposed recognizing the principle as an 'inviolable custom,' a governor general of neither French nor English extraction, Ed Schreyer, was appointed. In the matter of the Crown, Diefenbaker, like King, was suspicious, although it was not unwarranted interference in Canadian affairs that concerned him but rather a surreptitious plot by the Liberals 'to place the Queen in a non-

Canadianizing the Crown 47 existent position/26 Under the Liberal restoration after 1963, first bilingualism followed by multiculturalism and then, much later, the Charter of Rights and Freedoms offered a powerful countervision to a politics based on dualism and regionalism. It was in this new climate that politicians set out to regenerate the Crown in Canada. This is no surmise but a conclusion based on evidence in the papers of the Governor General's Office. The Crown was to be rooted in the future, not in the past; for the historic Crown with its anthem, emblems, and symbolism made accessible a past the government of the day rejected. This change was not the result of the intensive constitutional discussion between the federal and provincial governments that had begun in 1968. While there was some mention of the Crown by the provinces, no concrete proposals for reform emerged, and the abortive Canadian Constitutional Charter of 1971 (the Victoria Charter) made no reference to the subject. The idea of strengthening the Crown by broadening the responsibilities of the governor general and Canadianizing the office was shared by both the Office of the Governor General (in particular, the secretary to the governor general, Esmond Butler) and the Privy Council Office. It was through Butler that communication passed, or was initiated, that reached the private secretary to the Queen, the governor general, and the clerk of the Privy Council. Notwithstanding Diefenbaker's suspicions and Trudeau's pragmatic view that abolition of the monarchy would be more trouble than it was worth, the record reveals more than a polite willingness on the part of the Queen to accept change. In 1970 Prince Philip, on a visit to Ottawa, met with the prime minister, the governor general (then Roland Michener) and Butler to discuss what the agenda called 'Canadianization of the institution/ Under that item came questions about the royal salute, the use of the Union Jack, Her Majesty's styles and titles as regards Canada, and state visits by the governor general (the first one outside of North America had been to the Caribbean in 1969). The following year the Office of Governor General and Information Canada published a pamphlet which advanced the argument for a peripatetic governor general, because 'no King or Queen in 100 years since Confederation has made a state visit abroad as our exclusive representative/ Michener himself reiterated the theme in a speech on The Role of the Crown in the Canadian Constitution/ given to the Empire Club of Canada, Toronto, in November 1970. He submitted the address in advance to the prime minister 'to guard against possible embarrassment to the Government/ and received from Gordon Robertson of the Privy Council Office

48 The Invisible Crown a three-page response suggesting revisions 'the P.M. [had] directed ... [be] put ... forward/ These included a recasting of a paragraph that might give support to 'the imaginative idea' that the prime minister was becoming a president, when 'real executive power lay in Cabinet/ In a discussion of government attitudes towards the monarchy, the speech observed that 'the trend of events seems to be to establish the Governor General as the Crown in Canada for all purposes, as far as can be done consistently with the continuation of the hereditary monarchy/27 The victory of the Parti Québécois in 1976 created a sense of urgency about constitutional reform which propelled the federal government into making the most comprehensive set of proposals for change to date. Repeated failure since 1927 to reach agreement with the provinces on a domestic amending formula that applied to all parts of the Constitution Act prompted the Trudeau government now to adopt a two-phased (and accelerated, it hoped) approach to change, which it laid out in its 1978 white paper, 'A Time for Action/ The first phase, dealing with institutional reforms to be in place by 1 July 1979, was to be achieved by use of the amending formula found in section 91(1) of the Constitution Act, intended to deal with matters of concern to the federal government only and placed there in 1949 by the St Laurent government as part of its drive to promote national status. As of 1978, section 91(1) had been used only twice: in 1952 to safeguard the representation of some provinces in the House of Commons, and in 1965 to provide for the retirement of senators at age seventy-five. The second phase, dealing with the contentious division of powers question and a new general amending formula, was projected for 1981, the fiftieth anniversary of the Statute of Westminster. Describing the statute as practically unknown to the Canadian people, the white paper used it as an example of what was wrong with the accretion of practices and powers that passed for a constitution in Canada; it, and they, were portrayed as obscure and anachronistic in form and plodding and uninspiring in appeal. The white paper envisioned old institutions refurbished (the Senate, for example, would become an effective, semi-provincialized House of the Federation) and new institutions of powerful national appeal (including a Canadian Charter of Rights and Freedoms). Although the Queen would remain Canada's sovereign head and would still appoint the governor general, by any other measure her representative was to be thoroughly domesticated under the new constitution. To begin with, his authority would no longer derive from prerogative instruments but would emanate from the constitution itself. As

Canadianizing the Crown 49 well, he would possess all the prerogatives, functions and authority belonging to the Queen in respect of Canada, and laws would be passed in his, and not the sovereign's name. Notwithstanding the language, Gordon Robertson, clerk of the Privy Council, assured the governor general of the day, Jules Leger, that although 'we are altering the legal base for the Governor General and ... are making the powers his own rather than delegated powers ... the "substance" is the same/28 From that assurance, however, there were dissenters, though not at Buckingham Palace, where the Queen's private secretary reported that Her Majesty recognized as 'a notable achievement to have set down the Canadian Constitution in one document/29 And so it was, although it proved too notable to pass outside inspection. The document, the Constitutional Amendment Bill (Bill C-60), incorporating the first phase of institutional change, was introduced into the House of Commons in June 1978. Since this study deals with the Crown, it will examine only the provisions of the bill touching the office of governor general, and then only as these relate to the theme of Canadianization. Much more could be said about the provisions generally, as was done at the time by constitutional authorities such as Eugene Forsey and J.R. Mallory who dissected the bill's clauses and discovered both contradictions and ambiguities therein.30 From the point of view of constitutional theory, the problem with Bill C-60 was that it attempted to codify responsible government, to make explicit in statutory form what had hitherto rested on convention and custom. If the old practices had seemed plodding, the new provisions were scarcely less laboured, and in the minds of some critics a good deal more dangerous. To define, among other matters, cabinet, the relationship between cabinet and Council, and the Crown's discretionary power, as the bill tried to do, underlined the poverty of the draftsman's language at the same time that it invited judicial challenge and scrutiny. As a relevant aside, it should be recalled that debate on these sections of Bill C-60 occurred less than three years after Australia's governor general, Sir John Kerr, had invoked his discretionary but legal power over the conventions of that country's constitution to dismiss the Commonwealth government led by Gough Whitlam.31 There was no reason then, in Canada in 1978, to see these contentious provisions as solely academic questions. But it was not the experts' criticisms that ultimately repulsed this unprecedented federal initiative at constitutional change, although the doubt sown by Forsey, in particular, 'misrepresented] ... the government's intentions' and undermined confidence in them.32 Rather it was

50 The Invisible Crown the provinces who successfully challenged the federal government's assumption that it could engineer institutional change of such magnitude through resort to section 91(1). At their annual meeting in August 1978, the premiers agreed that 'significant constitutional reform should have the concurrence of all governments, recognizing the equality of status of all provinces in the process/33 The prime minister rejected the claim, saying it constituted 'a direct and sweeping intrusion into federal jurisdiction/ It is possible to see in this federal-provincial alignment of 1978 a foreshadowing of the even more acrimonious controversy three years later which preceded patriation of the constitution and adoption of the current Charter of Rights and Freedoms. The difference, however, was that in 1978 the dispute focused equally on institutions and process; and those institutions which at the outset had seemed pre-eminently national (that is, subject to central government definition) were ultimately found to be federal. Under the twin pressures of provincial opposition and limited time in which to achieve constitutional change (a federal election had to be held in 1979), the federal minister of justice agreed to refer the Senate sections of Bill C-60 to the Supreme Court. The Court replied (but only after the defeat of the Trudeau government) that Parliament alone could not 'make alterations which would affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process/34 Unfortunately for this study, the federal government refused to refer the sections that touched the Office of Governor General to the Court, on the ground that no substantive change was made to the Crown by the bill. Nonetheless, the events of 1978 spoke to the question of the position of the Crown in Canada in several notable respects. First, notwithstanding the Liquidators case and other judgments in the nineteenth century that led to what has earlier been described as a compound monarchy in Canada, the Canadian Crown, in the person of the governor general, still exerts a determinative influence over the practice and predisposition of the Crown's representatives in the provinces. There could be no other conclusion to draw from the objections the premiers raised to the provisions of Bill C-60 as they affected the governor general. Canada's eleven monarchical compartments are evidently not watertight, and any symbolic assertion of one of them as the 'First Canadian' threatens to breach the figurative constitutional walls that separate and make them distinct. The Australian precedent, where the states for more than fifty years after passage of the Statute of Westminster continued to maintain

Canadianizing the Crown 51 a closer relationship with the sovereign than did the Commonwealth government, passed unnoticed. The greater political autonomy of the provinces in the Canadian federation, vis-a-vis the states of the Australian federation, was not allowed to be replicated in the matter of the formal Crown; here uniformity not diversity was to be enforced. Secondly, the events of 1978 thereafter removed the Crown from constitutional discussion. The Times of London said that Trudeau's critics used 'the proposals affecting the Crown as a stalking horse to assist them in making a wider pre-election attack on [his] policies/35 That interpretation is scarcely justified in the case of the constitutional experts who probed the bill's confusing and ambiguous clauses and terminology. But the opposition voiced in 1978 did discourage the next Trudeau government and the Mulroney government after that from raising the topic of the Crown in their subsequent constitutional proposals. Thus, the Crown remains 'unpatriated' and the statutory component of the process of Canadianizing the governor general unachieved. This reversal of legislative fortune did not prevent what the deputy prime minister of the day, Allan MacEachen, described as a further manifestation of Canadianism. At the height of the debate over Bill C-60, Ed Schreyer, a former NDP premier and 'the first [appointee] from an ethnic group/ was nominated by Trudeau to succeed Jules Léger. The choice was roundly greeted with surprise, Diefenbaker describing it an amazing decision; and even Schreyer was unprepared for the offer: 'It was/ he said, 'almost in the nature of an anonymous call and it was such a strange call I couldn't take it seriously.'36 Finally, the 1978 proposals and, more particularly, their failure, testify to the significance of the Crown in Canada on several levels. First, there is an emotional attachment to the sovereign which, while not easy to measure, was judged strong enough to make some premiers reluctant to countenance change. Secondly, the debate reveals an appreciation on the part of the premiers and other critics of the advantage that derives from not Canadianizing the Crown. Critics were unanimous in seeing the powers of the central government increased as a result of the changes. Rene Lévesque, premier of Quebec, spoke directly to this concern, for in the political climate of the period before the referendum on Quebec sovereignty, any increase in federal power would constitute a potential curb on Quebec's separation from Canada. Other premiers, however, expressed similar though less pointed reservations about the proposals, even though, had the proposals been adopted, that increased power might in all probability have been imitated in the relationship between

52 The Invisible Crown the premiers and their lieutenant-governors. In other words, if the premiers' interpretation was correct, that a stronger prime minister would be a consequence of the reform to the Office of Governor General, then they stood to lose by opposing the change. The proposals and the reservations they engendered underlined a truth at the heart of the process of Canadianizing the Crown that had never been squarely faced: this last step - to remove the sovereign in all but the most ephemeral form could not be accomplished without the threat of politicizing the office, and that consequence the rivalry between Canada's federal and provincial governments made impossible. Paradoxically, both Trudeau and the Queen were disappointed by this outcome. At each stage of the Canadianizing process, the Queen had expressed her approval, because, it was reported, if she was to remain Queen of Canada, 'the title must have some meaning to it... The idea of a constitutional monarchy in Canada suffered from the poor standing of the Governor General.'37 Opposition to Bill C-60 went far beyond the provisions affecting the governor general. A reformed upper chamber that would give the provinces some influence over central government policy attracted adverse comment, and there were many questions about the impact a Charter of Rights and Freedoms would have on traditional Canadian political and legal practices. Nonetheless, provincial opposition to changes proposed for the Crown in Canada identified the executive as yet another subject for intergovernmental dispute, and in that fact there was some irony. Section 92(1) of the British North America Act, 1867, made the office of lieutenant-governor immune to amendment by provinces seeking to change their constitutions. Indeed, until adoption of the Charter in 1982, it was the only restriction on the scope of provincial constitutional amendment. This did not mean, however, that provincial governments could not act in ways that had an effect on how lieutenant-governors conducted their affairs. In the past, for reasons of economy, ideology, or even querulousness, provincial governments had closed the doors of some lieutenantgovernors' residences; H.A. Bruce, one of the dislodged notables, predicted in 1937 that Mitch Hepburn's closure of Chorley Park in Toronto would 'give encouragement to the Red element in our population.'38 Also some, such as Saskatchewan's newly elected CCF government, had unsuccessfully sought in 1945 to abolish the position in fact if not in law by asking Ottawa not to fill a vacancy but leave the duties to a justice of the province's highest court. And Quebec, under the premiership of Rene Lévesque, had reduced the lieutenant-governor's tasks and visibil-

Canadianizing the Crown 53 ity by foregoing the customary throne speech and in its place initiating an address by the first minister. But to these slights the office of lieutenant-governor everywhere proved impervious. Indeed, in constitutional terms at least, time was on its side. For even as the occasional Victorian or Edwardian mansion disappeared, the epanouissement of all provinces in this century (and not just Quebec after 1960) could only raise the official status if not the social prestige of the chief executives. And that improvement had nothing to do with the quality or extent of the salutes or anthems that heralded the public performance of their duties. Arguably, they had nowhere to go but up. Accounts of the earliest days of Confederation agree on the low esteem paid to provincial politics: 'a monstrous record of parish legislation/ 'glorified county council/ 'an Assembly ... out at the elbows/39 The small change of early provincial politics joined to the anti-provincial bias of Macdonald and his followers after 1867 contributed to this view of the provinces as but shadows of the pre-Confederation colonies. From that lowly estate the provinces have prospered, but not without confusion enroute as to whom and what their lieutenant-governors represent. According to the private secretary of George VI, 'as far as The King [was] aware/ they were 'representatives of the Crown/ Viscount Willingdon (governor general, 1926-31) told George V's private secretary that they 'were personal representatives of His Majesty/ On the eve of the royal visit in 1939, Mackenzie King informed Lord Tweedsmuir's secretary that they 'were regarded as Civil Servants appointed by the Dominion Government for certain specific purposes'; while an earlier Canadian secretary of state, R.W. Scott, had asserted they were 'representatives of the representative of the King/ By 1955 Buckingham Palace could be excused uncertainty in the matter, particularly after the Queen's private secretary had summarized the situation as he understood it: '[They] are not the Sovereign's representatives. Strictly speaking, therefore they have no right to be received in audience/ Louis St Laurent disagreed with this statement, because within their realm of activity lieutenant-governors were 'as much the representative of Her Majesty' as the governor general was within his realm.40 Nowhere was the contrast between the states of Australia and the provinces of Canada more marked than in the status claimed, and accepted, by the Australian state governors. At the birth of the Commonwealth, the states remained highly conscious of their former position as sovereign colonies, in part because four of the six had until the last half of the nineteenth century been united as New South Wales, and were anx-

54 The Invisible Crown ious to retain their right of direct communication with the imperial government. Indeed, a large number of early disputes between the federal and state governments turned on the so-called channel of communication problem. Because the state governors were appointed directly by the sovereign, they played a central role in these disputes. More than that, in their assertions to be recognized through ceremonial and impressive residences 'there was a real sense in which the independent Governor ... [became] the sign and symbol of the sovereign state/41 The same could never be said of the Canadian lieutenant-governors; for whatever claims to the Crown prerogative might be made, and won, on their behalf (as in Liquidators), these were achieved by political means and for similar ends. As 'figures/ the lieutenant-governors never approached the distinction of the Australian state governors. Most were local men (the first woman was appointed in 1974), and their achievements before appointment were generally of a political character; the state governors were not Australians, but normally from Great Britain (the first Australian-born governor took office in 1948), and until recent times usually titled. No lieutenant-governor ever had the establishment and support services that accompany an Australian governor's position. In the Atlantic provinces, longer traditions and tighter-knit societies might make the job more familiar to potential occupants than elsewhere in the country, but the seminars for lieutenant-governors, which Roland Michener instituted when he was governor general (1967-73), were welcome and necessary.42 Otherwise the novice appointee found himself in a position similar to that of R.L. Hanbidge, Saskatchewan's lieutenant-governor in the 1960s: that is, dependent upon the clerk of the Executive Council to 'guide my faltering foot steps' or soliciting from fellow occupants of the office elsewhere 'any hints or suggestions ... or any booklets, pamphlets or material that would be useful to a person filling this office.'43 Despite the comparative disadvantages of the position when placed alongside the state governors of Australia, the provincial Crown has grown in importance as a consequence of the phenomenon of provincebuilding.44 The responsibilities allocated to the provinces under the Constitution Act, 1867 have been in those areas where governmental activity generally has expanded. Social welfare, health, and education expenditures are principal components of every province's budget. In addition, and unlike the Australian states, the Canadian provinces correspond with distinct economic interests, attitudes, or ways of life that provincial governments are expected to promote. When to these determinants is added a constitution (again, unlike the Australian) based in

Canadianizing the Crown 55 general upon exclusive and not concurrent powers, then the source of Canada's distinctive, decentralized federation is understood. Thus the provincial Crown's powers have necessarily grown. So too, in a modest way, has its status. The Queen has made it a practice, where possible, to receive lieutenant-governors and spouses 'once during each term of office/ Normally, this is only a short social call, although even that regularization of practice is an improvement over a situation where Buckingham Palace did not know whether to acknowledge the death or illness of a Canadian lieutenant-governor because it did not know 'to which class any Lieutenant-Governor who becomes a casualty may belong.'45 But even conventional audiences can threaten to assume a political flavour, as in 1976, when Ralph Steinhauer, Alberta's lieutenant-governor and the first Native person in Canada to hold the position of lieutenantgovernor, met the Queen, accompanied by Alberta Indian chiefs, the high commissioner of Canada, and the province's attorney general. Earlier Esmond Butler had informed Steinhauer that the federal government wanted assurances the visit would not be used 'to draw attention to problems which are of concern to the Indian people of this country.' Only on that condition being met would the prime minister 'approve the visit of the Alberta Indian chiefs to England.'46 Among Bill C-60's deficiencies was the failure to address the position of the Crown in the provinces; yet the provinces were not empowered to amend the office of lieutenant-governor. One consequence of Bill C-60's passage, said Eugene Forsey, might see the provinces 'in some mystical and magical way, be more monarchal than the country as a whole.'47 That was not to say that the provinces were themselves monarchies, a proposition Forsey had long rejected on the premise that they were all 'parts of a constitutional monarchy, Canada';48 rather it was that in this respect, as in others, the constitutional amendment bill misperceived the complexity of the Crown. Not only had the drafters failed to capture in words the subtleties of a system of government where responsibility extended up, to the sovereign, as well as down, to the legislature, but they had failed - and this was a singular lapse for Canadians - to recognize its federalist dimension. In this conceit they proved themselves true descendants of Sir John A. Macdonald. POLITICAL DOMINANCE OVER THE CROWN

Political dominance over the Crown is a natural condition of modern Canadian government, and any deviation from that understanding

56 The Invisible Crown would be remarkable in the decade that will observe the sesquicentennial of responsible government in Canada. Notwithstanding this principle, it is the reserve power of the Crown, capable of exercise without advice of ministers, that still continues to attract academic attention when the Crown is discussed. Half a century ago, in a review of Forsey's book on the royal power of dissolution, R. MacGregor Dawson questioned the wisdom of this scholarly bias. 'Dr Forsey/ he wrote, 'makes the intervention of the Crown almost a normal occurrence/ The difficulty with viewing the Crown as guardian of the constitution, he argued, was that it made the governor appear too active, when, instead, his intervention should be limited to emergency situations only. More generally, Dawson criticized the selective interest in the narrowly legal reserve power to the exclusion of concern for other prerogatives of the Crown.49 The next chapter of this book will examine these other prerogatives in detail, since they comprise a significant part of the Crown's distinctive contribution to everyday Canadian politics. For the moment, attention will focus first on the reserve powers as an exception to the theme of political dominance, and then contrast that power to the general prerogative. Time has borne out the logic of Dawson's strictures: the reserve power is only a small segment of the prerogative but it continues to monopolize such discussion of the prerogative as there is in Canadian academic literature. Nonetheless, events of the last fifty years demonstrate continuing uncertainty in many quarters about the exercise of the reserve power in those situations where governments lose control of a legislature. There can be few other systems of government where periodic uncertainty about how it should or will operate is a regular feature of its condition. It should be admitted that the reserve power is only one contributor to imprecision; the absence of fixed election dates is another. And here the contrast with the United States, where the rhythm of elections in all offices is set forever in two- and four-year cycles, is great. These characteristics of the political system help account for the dependence upon authorities to explain the reserve power. Thus, in situations like the Ontario general election of 1985, when the incumbent (Progressive Conservative) government led by Frank Miller won fifty-two seats to fortyeight for the Liberals under David Peterson and twenty-five for the New Democrats under Bob Rae, confusion reigns and expert advice is summoned. The late Donald V. Smiley sardonically described the situation: I had a frantic call from Frank Miller's office to the general effect that it would be

Canadianizing the Crown 57 good if I could find reasons to suggest that the Peterson-Rae accord [a written agreement whose terms assured inter alia no election for at least two years] betrayed some eight centuries of our parliamentary tradition. Things must be desperate if they are looking to Smiley for constitutional advice with other participants in the matter able to get the opinions from Forsey and [J.J.] Robbinnette (Sp.?) ... The only worse thing, perhaps, than Miller advising a dissolution would have been to put the matter before the judges on reference.50

Norman Ward reported a similar experience, when an official of the Manitoba legislature sought his advice in the complex set of events there in 1988. Following legislative defeat of the NDP government's budget and the call of an election, the premier, Howard Pawley, announced his resignation as party leader, and 'seemed to think he could simply hand over the premiership to whatever individual won the leadership contest, thus making him an instant premier/ Ward tried 'to persuade them all' that Pawley should stay on as 'a sort of caretaker premier until the actual election/ or, at least, that 'the lieutenant governor consul[t] all the party leaders about the situation/51 Consultation of authorities is not a recent practice either; Goldwin Smith strongly disapproved of Lord and Lady Aberdeen's deference to people like Bourinot, who had succeeded Alpheus Todd as the reservoir of 'occult knowledge' in such matters.52 These and other instances offer support for the view that the problem of the reserve power today is not so much how to check the Crown's use of it as how to prevent the prime minister (or premier) from abusing it: 'testing the limits of "responsible government"' was the fine phrase Peter Neary used to describe Joey Smallwood's last exertions to hold office in 1971,53 For the temptation is strong because the stakes are high. The life of a government is tied to the life of a legislature, and the first minister's special prerogative to advise its dissolution at a time of maximum benefit to himself and his party is a powerful lever the leader holds over colleagues, backbenchers, and even the opposition.54 The perennial appeal that reformers see in looser party discipline and fewer confidence votes finds its origin here. Critics of Bill C-60 had such considerations in mind, for in addition to revising the symbolic form of the Crown, sections of the bill appeared to reduce the reserve power and undermine the governor general's guardianship of the constitution. W.R. Lederman, a former dean of law at Queen's University, summarized the heart of that concern: Section 53 comes close to saying that the Governor General must do what the

58 The Invisible Crown Prime Minister tells him to do, even though that Prime Minister may have lost his right to influence because of a confused or adverse situation for him in the House of Commons or because of adverse electoral results, or both. In my view the present constitutional arrangements between Queen, Governor General, and Prime Minister, based on established usage, are working well. They are not particularly controversial, and should not be changed.55

Professor Lederman's conclusion may have been too sanguine. Controversy surrounding the use of the reserve power is not always made public. Following the inconclusive Newfoundland election of 1971, the lieutenant-governor was reported to have 'refused five requests [for dissolution], presumably insisting that the new House must at least meet, and show its incapacity to transact public business, before he would consent/56 Moreover, Lederman's opinion preceded the governor generalship of Ed Schreyer. A former political scientist, Schreyer twice speculated on his role 'at the vortex of constitutional problem-solving/ Both sets of comments dealt with the use of the reserve power, although the first, in 1979, was more traditional in its content than the second, made in 1982. By coincidence, less than a week before the defeat of the Clark government on 13 December 1979, the governor general taped a television interview (never broadcast in its entirety), in which he discussed his reserve power to seek 'alternatives ... to a series of elections' in a situation where a recently elected government lost its mandate. Although it was unprecedented for a governor general to discuss his reserve power so publicly, the interview had the virtue, said one commentator, of letting the public know how a governor general interprets his role: 'He was really saying "Look, the GG has authority at one end and at the other. If parliament tries to go on [too] long there may be a problem. If parliament tries not to go long enough (admittedly a much more difficult area) there may be a problem".'57 Far more controversial were Schreyer's comments in 1982, after the federal and provincial leaders (minus Rene Lévesque) had reached a difficult agreement on patriating the constitution. Had agreement failed and had there been no willingness shown to reach an accord, Schreyer said 'the only way out... would have been to cause an election ... and [let] the people ... decide.' While some authorities were 'inclined to think that he is right in the general principle that there still exists a "reserve" power to compel elections in crisis situations,' others who had argued the case for the reserve power were disturbed at what they saw as a unilateral extension of the

Canadianizing the Crown 59 Crown's prerogative.58 Here Forsey and others echoed Dawson's earlier reservations, noting for a start that the governor general is not empowered to dissolve Parliament without advice. Reserve power there was, said Forsey, but that did not make the Crown's representative 'General de Gaulle.'59 The hallmark of the reserve power lies in the Crown's discretion to use it without advice. Because it lies outside the boundaries of the normal practices of responsible government, its scope is imprecise and susceptible to the contrasting interpretation discussed above. The other prerogative powers, those exercised on advice, also have indefinite scope; as Roland Michener phrased it, They have not all come to light by example/ But in contrast to the reserve power, the onus of responsibility for their exercise clearly rests on the chief adviser, the first minister. In these instances, again according to Michener, the Crown 'is obliged to accept the government's advice.' To be sure, discretion of a sort still exists: the governor may avail himself of Bagehot's rights to advise, warn, and encourage; he may request more information; or he may ask government to reconsider its intended action. But in the final analysis, Canadian governors are in the same position as an Australian counterpart who was told by his first minister: Your Excellency will see that to admit the right of the Governor-General to delay assenting to matters submitted to him personally at Executive would be to admit his right of review or even rejection of such matters - but this would make the Governor-General the de facto Government of the Commonwealth which under our Constitution and that of Britain he is not.60

In the matter of exercising the prerogative, much depends upon the relationship that exists between first ministers and governor. But from what has been said already in this chapter, it would be exceptional if Canadian practice allowed greater freedom to the Crown's representative than that set down by the Australian prime minister some decades ago. Tweedsmuir's secretary reported that Mackenzie King wished to keep his master in a humiliating position of total ignorance of governmental affairs, a condition Mackenzie King characteristically defended with the observation that 'it is always important to remember the significance of the things the Governor General did not do.'61 More recent representatives of the Crown may have been kept better informed than Tweedsmuir (Pearson and Trudeau paid weekly visits to Michener), but consultation in Canada has never been as detailed or as regular as in

60 The Invisible Crown Great Britain. Certainly, the idea that the governor general (and his secretariat) might play a non-partisan role comparable to a senior Canadian civil servant was impossible in light of the manner of his appointment (even less likely was that concept to find favour in the provinces where lieutenant-governors were appointees of the federal governor-incouncil).62 The history of responsible government had centred on the extinction of such claims to independence. The governors general (but not the lieutenant-governors) had resources in their secretaries, who could advise them on points to take up with the prime minister, and could also establish close and useful ties to senior civil servants. Ultimately, though, the prime minister controlled that avenue as well: '[The Clerk of the Privy Council] went on to say that of course it was proper for the Secretary to the Governor General to consult him ... but that it was the Prime Minister, and not he, who should advise the Governor General. The Clerk of the Privy Council would only advise the Governor General when the Prime Minister had resigned and a difficult period of interreguum resulted and the Governor General sought his advice/63 Thus the advice on which the prerogative is exercised comes predominantly from the prime minister. And increasingly, it is proffered directly rather than through Council. The special prerogatives of the prime minister, cited in the previous chapter and codified for the first time in an order-in-council in 1896, permit him to make recommendations to Council. The summoning of Parliament, its dissolution, and the many appointments whose nomination fall to the prime minister were once recommended by Council to the governor general (thus the term order-in-council appointments). One Diefenbaker cabinet minister has commented that 'I do not believe that John ever signed any recommendation or instrument of advice ... without first having the approval of his colleagues/64 But after Diefenbaker, the instrument of advice, which is signed by the prime minister alone, grew in favour, including 'advice to the Queen' on the appointment of Jeanne Sauvé as governor general. Forsey counselled Brian Mulroney, then opposition leader, that on this particular question, 'you have good ground for affirming that the advice to the Queen should be the advice of the Cabinet, tendered only after the Cabinet has discussed the matter and arrived at a decision/65 In the 1970s the Canadianization of the Crown saw the transfer of remaining prerogative powers from the Queen to the governor general in the matter of appointments of Canadian ambassadors and high commissioners. The consequence of that change was not to increase Coun-

Canadianizing the Crown 61 cil's participation but to expand the prime minister's discretion. Nor were the governor general's powers enhanced. Asked 'to give his informal approval before [the appointments] take effect' did not, wrote Esmond Butler, constitute 'what one might call effective consultation.' Moreover, new procedures agreed upon in 1976 applied not just to diplomatic positions but to senior appointments generally. At this time the prime minister 'agreed to consult the Governor General where possible on the following appointments: Chief Justice, Ambassadors to Washington, London and Paris, Lieutenant Governors, Judges of the Supreme and Federal Courts, Chief of the Defence Staff and Secretary to the Cabinet as well as other important positions including any to which former Cabinet Ministers might be assigned.' As opposed to consultation, the prime minister 'agreed to inform the Governor General in advance where possible of all of the following appointments: other heads of post appointments, Senators, Deputy Ministers, Heads of important crown corporations and agencies.' Nowhere in this correspondence is there a reference to Council.66 The prime minister's pre-eminence in the matter of appointments is not new; as spokesman of cabinet his is the voice the governor general has always heard. But the instrument of advice accentuates his singular resources in a relationship that already favours the political over the formal Crown. As such, it contributes to a further attenuation of the influence of the Crown's representative. Twenty years before Confederation, on another aspect of appointments - whether to make them in the name of the governor or the sovereign - Lord Grey, as colonial secretary, advised Canada's governor, Lord Elgin, to be mindful of 'any forms wh. mark the differences between republican and monarchial [sic] institutions.'67 Today, the dominance the prime minister holds over senior appointments could never be labelled republican; no president of the United States (for that is the republic Canadians have in mind when they use the adjective) exercises such influence. Indeed, it is the role the United States Senate plays in confirming the appointment of presidential nominees to high office that attracts Canadian parliamentary reformers. The political dominance of appointments in Canadian politics itself became a major issue in the 1984 federal general election; but patronage is the rock on which Canada's political parties are built. Its control - that is, its seizure from the Crown - became a major campaign in the struggle for responsible government. Patronage is central to Canadian politics because the ideological differences between the parties that traditionally

62 The Invisible Crown form governments are insufficiently strong to sustain the allegiance of the army of volunteers necessary to secure victory. Honours and titles are not an alternative. They have never held mass appeal for Canadians, although they have been an important feature of state and federal politics in Australia, with both levels of government making recommendations to the sovereign. Unlike honours, patronage means jobs and jobs mean large public services. Long periods of two-party competition and single-party government swell the demand for patronage from both the ins and the outs. Patronage is a prevalent, even a cardinal, feature of Canadian politics. It achieves this prominence because the political executive commands the prerogative. And except for the reserve power, direct access to a Canadian Crown assures the triumph of political dominance.

4

Government of the Day

M. de Tocqueville has lived long enough. Joseph Cauchon, Confederation Debates, 2 March 1865 The great want under the American form ... was the absence of some respectable executive element. Sir George-Étienne Carrier, Confederation Debates, 7 February 1865

It is now well established that strong executives characterize Canadian politics. W.P.M. Kennedy stated the fact bluntly: 'Nothing is more remarkable in Canada than the autocratic power of the cabinet in every legislature in the land/1 And a chorus of academics have echoed this refrain. The origin of Canada's strong executives lies in the suspicion, even hostility, the Fathers of Confederation felt toward democracy. It is no difficult task to unearth quotable passages to this effect in the Confederation Debates. Much more of a challenge is it to find in that record some positive reference to popular government. But mid-nineteenth century values alone would not have sustained a presumption in favour of executive dominance late into the twentieth century. Something more structural was required, and academics as far apart in time as Harold Innis and Mark Sproule-Jones have pointed to the absence of institutional balance in the Canadian political system as compared to that found in the British system, or for that matter in the United States. According to Innis, writing in the 1940s, 'the influence of the Senate was nullified by

64 The Invisible Crown control of the House of Commons and of the Supreme Court by subordination to the Privy Council. The influence of the Crown was steadily reduced by the House of Commons ... Freedom in Canada rests on the tenuous support of the Privy Council and in continued struggle between the provinces and the Dominion/2 There is no secret in how the executive achieves its control in Canadian federal and provincial legislatures: the whips enforce party discipline through appeals to loyalty and through the threat of sanctions, including the cessation of patronage to the party's members in the chamber. Intra-caucus patronage is not unknown in British politics, but it has never been so near the fulcrum of politics either. The reason for the contrast lies in the different scale and sequence of politics on each side of the Atlantic. Writing about the cultural dependence of English Canadians on Great Britain in the nineteenth century, A.G. Bailey said that although the Canadians 'imitated ... they could not duplicate the achievements of the Mother Country/3 The same could be said of their politics. Britain was a small country but it was the seat of an empire, and its politics were national and international as a consequence. Except for Prince Edward Island, the British North American colonies were large (though not nearly so large as the federation to come in 1867), yet their politics never rose above the constituency. This was a malady, according to Sir Edmund Head, governor of New Brunswick, whose symptoms pervaded the body politic: there was 'no "public" in the proper sense of the term' because communities were small and scattered; 'the violent and self-interested motives of one or two overbearing [persons]' thwarted the expression of popular opinion; there were too few men of ability because in the absence of municipal government in most localities they had no training ground; and local interests were 'disproportionately strong' and 'log-rolling' the order of the day, especially in small legislatures where the value of a single vote was 'exaggerated/ The remedy, said Head - and his counterparts Bagot and Elgin in Canada agreed - lay in strengthening the executive by assuring it a monopoly on initiating money votes, and by uniting the colonies to create a larger political arena that would promote 'the self-respect and selfconfidence [needed] to make parliamentary government a success/4 Small-scale politics in the pre-Confederation period spawned a localism in public affairs that continued in national politics after 1867. Party organization took root in the constituencies outside of Parliament and reinforced localism; elections were won or lost in the polls, not in the House. The British experience of extra-parliamentary party organiza-

Government of the Day 65 tions, created in response to a gradually expanded franchise and latterly summoned to aid parliamentary battalions already formed at Westminster, was not repeated in Canada. Party discipline made party king and, in Kennedy's words, 'a premiership legend [sprang] up, just as [did] a royalty legend/5 These two cardinal features of Canadian politics strong parties and strong executives - are intimately joined, and for this reason: responsible government, that is, political dominance of the Crown, is possible only where party controls the executive. Bagehot's description of cabinet as a buckle which fastens the legislative part of the state to the executive part of the state is at best a finesse, for in a system of responsible government the cabinet no longer fastens the executive to the legislature; it becomes the executive. More than that, it is itself part of the legislature. It is in the telescoping of Crown, cabinet, and legislature, summarized precisely in the phrase the Queen-in-Parliament, that the uniqueness of responsible government rests. As opposed to a system like that of the United States, based on the principle of the separation of powers but more accurately described as a separation of offices, the British or Canadian system demonstrates if not a fusion, then a mixture of constitutional parts. In short, whatever the government of the day may be, it is no 'mere executive/6 Government in Canada does more than execute political decisions, it determines them. Read literally, therefore, parliamentary government is a misnomer. Neither in Britain nor in British North America before or after 1867, did the legislature, in Sir Lewis Namier's phrase, 'engross the whole power of the constitution/7 In Britain, the Reform Bill of 1832 freed Parliament from an ancient constitution S.E. Finer describes as Gothic by assuring Parliament's independence from the Crown's patronage. But at the same time another, essentially modern phenomenon began: the removal of the civil service or administration from politics.8 There the reformed Parliament was an autonomous Parliament. In Canada, the achievement of responsible government did not empower the legislature so much as transfer the Crown's control of the executive to a small group of persons who commanded the support of the legislature. Here neither Parliament nor the civil service experienced autonomy for very long. The struggle to control the Crown's prerogatives preoccupied the colonial assemblies, but none was 'able to subvert the principle that all governmental monies were to be received and paid out by a Treasurer appointed by and responsible to the Crown/9 Indeed, by the time of Confederation, opposition as well as government honoured that princi-

66 The Invisible Crown pie, since if government did not monopolize financial decisions it could not be held accountable for them and turned out of power as a consequence. In 1868 Macdonald spoke of the need for patience 'until the new constitution shall have stiffened in the mould/10 Time may have been needed to let the new, national parties take form, but executive dominance, as revealed in the essentials of the operation of the financial system, that all members of Parliament knew; this was a fact, Norman Ward declared, 'whose importance can hardly be overemphasized/11 With Confederation, the stakes were raised but the rules of the game did not change. The political executive fed on the Crown, directly through the exercise of prerogative powers and indirectly through the exercise of powers delegated by the legislature to the Crown. By assuming what R. MacGregor Dawson called the function of kingship in a political system whose other institutions lacked independent authority, government became autonomous to a degree unknown in Great Britain.12 As long as the country expanded after 1867, and immigrants arrived and agriculture had no serious economic rival, the federal government, the federal executive, prevailed. The provinces were not passive; in Ontario and on the prairies where new institutions had to be created and policies formulated to accommodate a swelling population, there was much activity and innovation. W.F.A. Turgeon, attorney general of Saskatchewan between 1907 and 1921, captured the essence of that spirit: 'I am just wondering now what provincial action might be taken to deal with some of these questions. We dealt with the Farm Implement question, broke new ground and found that we could do things as a Province, which had not been thought of before/13 But the nineteenth and early twentieth century belonged to the federal government as it rounded out the country and stiffened the national mould. The provinces acknowledged this primacy and federal pre-eminence in imperial affairs. The Report of the Ontario Commission on Unemployment in 1916 noted, for example, that neither the prairie provinces nor Ontario could effectively supervise the annual harvester migration, and that this must be the job of the central authority. The report also underlined the centralizing force of imperial concerns: 'It may be hoped that the supervision and encouragement of Provincial Employment Bureaux will at the same time enable the Federal Authorities ... to help guide the movement of labour within the British Empire/14 Laurier said that the twentieth century belonged to Canada. Outside of the two world wars and the decade following the end of the Second

Government of the Day

67

World War, it would be more accurate to say that in political terms the century belonged to Canada's provinces. As the century progressed, the will to exercise power migrated from the centre to the parts, as the provinces exploited in earnest the potential for initiative the courts had earlier given them. Had the provinces only had legislative authority over certain matters in section 92, but could not exercise royal prerogative in those same areas, their ability to develop social policies that involved extensive administrative regulation would have been severely hampered. However, Hodge v. the Queen in 1883 set out the basic principle that the provincial legislatures were not delegates and therefore were not hampered in their ability to delegate legislative authority. Two cases discussed in an earlier chapter can be seen as the executive equivalent of Hodge v. the Queen: in Attorney General for the Dominion and in Liquidators, the Judicial Committee of the Privy Council held that the prerogative powers were divided along the same lines as the legislative power, by the division of powers set out in sections 91 and 92 of the British North America Act, 1867.15 The modern regulatory state in Canada has been profoundly influenced by these judgments. Executive dominance is a feature of all western political systems today. This is customarily ascribed to the rise in public expectations and the demands made on government to meet these expectations. In Canada, however, there is a longer tradition of government intervention through public enterprises and through government support for private enterprises (the building of the CPR is a classic instance) than is true in the United States or Great Britain. Scholars have argued that the source of the difference lies in a distinctive collectivist political culture in Canada conditioned by immigration patterns, sparse population, geographic isolation, and colonial dependency. For each of these causes there is evidence to support arguments advanced on its behalf. Notwithstanding these explanations, there is also a constitutional interpretation, associated with the presence of the Crown, for the degree of government involvement. The system of responsible government places executive control in the hands of cabinet. Party discipline gives cabinet control of the legislature, and the legislature increasingly confers power on the cabinet. Into this triad of relationships courts in the Anglo-Canadian legal tradition have been reluctant to tread. In 1989, in a dispute between the auditor general of Canada and the federal government over access to information, the chief justice of the Supreme Court of Canada noted: Tor this Court to order access to information for the Auditor General would be, in effect,

68 The Invisible Crown to overrule a decision of the House of Commons not to act in this matter and to disturb the balance of constitutional power between the executive and legislative branches of government/ It is not for the Court, said Chief Justice Dickson, but 'the prerogative of a sovereign Parliament to make its intention known as to the role the Courts are to play in interpreting, applying and enforcing its statutes/16 The issue and distribution of information is historically a prerogative power of the Crown. Even in an age that treats the confidences of government less reverently than formerly, there is a vestigal reluctance to change. A former auditor general, Maxwell Henderson, offered practical reasons as well for the political executive's reluctance in the 1980s: Dye [the then auditor general] has allowed himself to be embraced by the private auditing firms who now compete for and do a lot of his work. He has the heads of the biggest firms serving as his advisers which puts them into the position of being able to lobby to their heart's content... As a result Dye is not his own man. He has jeopardized his independence and as a result he has changed the whole concept of the auditor general. The bureaucrats, indeed the MacDonald Royal Commission, see[s] this and small wonder, therefore, that they are putting up a fight. To make the Cabinet confidences available to the auditor general now means that they are also available to the entire crowd round the auditor general.17

J.D.B. Mitchell has written of the British constitution that 'it is parliamentary influences which have ensured the perpetuation of the concept of Minister-judge/18 With the emendation of cabinet for minister, because it is Canadian practice for Parliament to delegate power to the governor-in-council rather than to individual ministers, that comment applies with equal force to Canadian politics. Canadian courts, like British ones, recognize Parliament's sovereignty, despite the integration of these two governmental branches that comes from party discipline. The case just cited came an appeal from the Federal Court of Appeal which had overturned an earlier judgment of the Federal Court of Canada. At that level, the associate chief justice had found for the auditor general and remarkably so in light of the absence of precedent - on the grounds that information would not be produced because any vote by the House to that effect was 'predictably governed by the very same majority' that had first denied access.19 Canadian political scientists have perhaps thought too much about politics and not enough about law in explaining the dominance of the executive. This is true even where they have acknowledged the impact

Government of the Day 69 of law, as in the effect of Judicial Committee opinions on the distribution of powers in the Canadian federation. Although provincial legislatures became the beneficiaries of powers once thought to rest in the hands of the national legislature, the latent empowerment of the provincial executive that resulted is less frequently recognized. When in this century the demand arose for new social policies whose responsibility lay with the provinces, then the provincial executive discovered it possessed 'an elastic authority which [enabled] it to mould its performance to the working requirements of the policy/20 Here, as at the federal level, weak legislatures and weaker remedies to check administration left the executive in great control. Under a system of responsible government the most controversial issues are pushed to the heart of the decision-making system, to the cabinet, which commands both the formulation and execution of public policy. The critical decisions in Canadian political history - conscription, schools, railways, language rights, and the constitution - have all been determined within the political process.21 Only since the appearance of the Charter of Rights in 1982 have executives had to recognize a role for the courts. Even here the notwithstanding clause of the Charter, which echoes a similar provision in the federal government's earlier Bill of Rights, may be invoked to protect policies of federal and provincial governments. Canadian government thus operates in striking contrast to government in the United States where, as de Tocqueville observed long ago, 'hardly a political question arises ... that is not converted into a legal question and taken to the courts for decision/22 To date, there is no clearer example of this contrast than in how the courts in each country have responded to the challenge of constitutional guarantees to the right to vote. Thirty years ago, in Baker v. Can, the United States Supreme Court embarked on an historic journey to ensure observance of the principle of one person, one vote, and in the process has virtually taken the question of representation out of the politicians' hands. Much more recently, the Canadian courts have heard the same kind of arguments but have reached quite different conclusions. They have found that the right to vote means not equality of voting power but the right to effective representation and that 'the courts ought not to interfere with the legislature's electoral map ... unless it appears that reasonable persons applying the appropriate principles ... could not have set the electoral boundaries as they exist/23 The Canadian disposition to favour political over judicial remedies is of long standing. A reference by the federal government to the Supreme

70 The Invisible Crown Court, such as occurred in 1982 on the question of jurisdiction over the Hibernia seabed resources, should not be interpreted as an exception to that statement but rather as evidence in its support. For use of the reference is an executive act, and in this instance it interfered with normal judicial procedure, since the question of ownership was already before the Newfoundland Court of Appeal. According to Forsey, 'the Dominion Government's action is, as far as I know, unprecedented.'24 It may have been unprecedented, but the governmental interest the federal executive sought to uphold is venerable. The Canadian political tradition has generally been to avoid courts because the interests the political process seeks to accommodate are diverse and complex, and frequently defy logical or universalistic responses. Lord Lansdowne (governor general, 1883-8) early articulated this Canadian mood when he objected strongly to the Manitoba government's attempt to challenge before the Judicial Committee the exercise of disallowance by the governor-incouncil. The challenge never materialized, nor was the attempt well founded since there is no appeal from use of this power in section 90 of the Constitution Act, 1867. But the argument Lansdowne advanced to the colonial secretary is relevant to this discussion of the primacy of the political process: The justice or injustice of the disallowance depends not upon legal or technical considerations, but upon considerations of public policy of which a Court of Law, and particularly a Court remote from this country ... is incompetent to judge.' Any appeal, if appeal there be, should go to 'the National Parliament/ because 'the matter in dispute has been approached as a question of public policy by the representatives of the Province and as such dealt with by means of Parliamentary motion.' Recourse to a court would 'virtually be a revision of the conduct of the Parliament of the Dominion.'25 All threats to executive dominance are not the same threat, and the courts have generally proved to be a dependable bulwark in defence of executive pretensions. As opposed to experience in the United States, assertions to popular democracy in Canada have held only minor danger to the executive. In Re Initiative and Referendum Act, for instance, the Judicial Committee found ultra vires direct democracy proposals in Manitoba which would have compelled the lieutenant-governor 'to submit a proposed law to a body of voters' instead of to the legislature (that is, the initiative), and render him powerless to prevent it, if approved by such voters, from coming into effect (that is, the referendum).26 The consequence of this finding, which prohibits referendums but by inference accepts consultative, non-binding plebiscites (the distinction between

Government of the Day 71 the two terms is not always carefully drawn in popular discussion), is no less significant than the reasons the Judicial Committee gave for reaching it: there may be no 'abrogation of any power which the Crown possesses through a person who directly represents it/ The Initiative and Referendum judgment raised another issue, tangential to the question of the integrity of the executive per se but of importance to the topic of the Crown in Canada. It implied a restriction on legislative power delegated to the lieutenant-governor-in-council: such delegation, it said, must not 'affect the office of Lieutenant-Governor/ No comparable limitation has ever been imposed on Parliament's power to legislate 'so as to affect the office of Governor-General/ The point is noteworthy less for its practical significance than for underlining a potential lack of symmetry in the relationship of executive and legislature at the federal and provincial levels of government.27 Executive dominance has triumphed in Parliament and before the courts, although not without occasional rebuttal when the claim is boldly stated or the exercise of power starkly visible. The years immediately after the Second World War, with the memory of emergency government fresh and the implications of a Cold War apparent, prompted both repeated references to a too powerful government and suggestions for reform to limit that power. In the autumn of 1945, at the time Mackenzie King was in Washington discussing defence matters with President Truman and the British prime minister, Clement Attlee, the opposition parties indicted government by order-in-council. Their strategy was not to attack the new despotism of bureaucratic government, however, but to advance a theory of government that denied executive autonomy altogether. Gordon Graydon, leader of the official opposition, asserted that 'Canada is governed by the House of Commons' and cabinet is its 'committee/ The acting prime minister, J.L. Ilsley, took strong exception to this claim. It was, he said, 'not historically or constitutionally correct... The authority of the government is not delegated by the House of Commons; [it] is received from the crown/ which is a continuing entity, the head of the executive, and members of cabinet its advisers. The leader of the CCF, M.J. Coldwell, dismissed that interpretation as a fiction (Graydon had described it as medieval), which disguised the fact that 'real power is derived from the people of Canada/28 The following year the Gouzenko spy investigation and the royal commission inquiry that resulted raised the twin spectres of an external threat and internal restraint to civil liberties. The debate focused now on particular examples of executive power and on negative and positive

72 The Invisible Crown methods to limit it. Of the first, the opposition demanded repeal of the War Measures Act and of those sections of the Official Secrets Act that presumed guilt rather than innocence; of the second, they sought guarantees to counsel for witnesses summoned before royal commission proceedings. As well, running through the debate were references to a recent proposal by John Diefenbaker for a Bill of Rights, a suggestion which Ilsley (now minister of justice) rejected as radical because of the limitations it would place on the powers of Parliament and provincial legislatures.29 These brief examples of parliamentary dissent from the reality of executive dominance and the principle of monarchical rule are cited to demonstrate both the practical significance of the former and the elusiveness of the latter. Of these debates, and particularly Ilsley's advocacy of the Crown as the centrepiece of the Canadian constitution, St Laurent later wrote: 'It is well to have the truth as one's inspiration but it is sometimes wise to express only as much of it as one's supporters can be expected to accept/30 Away from the ceremony and symbols of monarchy, the Crown proved a distinctly unseizable concept to explain. To visualize executive power as flowing down from the Crown and not up from Parliament and, even worse, to articulate that vision as Ilsley had done in political terms that gave government pre-eminence, contradicted a much more entrenched view of responsible government. It granted the executive an autonomy that challenged widely held values about accountability, and could only find favour among those who occupied the seats of government. In this interpretation lay no unifying principle of politics; on the contrary, the hierarchy of power it presumed ran counter to the democratic base most Canadians saw in their political system. To explain the Crown was to exaggerate the Crown, and that was a condition Liberal nationalists like Mackenzie King and St Laurent were usually determined to avoid. Although no subsequent minister sought to instruct the House on the Crown and the constitution, discretion did not resolve the theoretical contradiction embedded in the constitution it only suppressed it. Power is derived from the Crown, and in some instances directly through the prerogative, but it remains unrecognized in the normal condition of responsible government. Canadians who think in terms of a popularly based politics are thus surprised by executive actions that conflict with that presumption. Yet there are repeated, even institutionalized, examples of the system diverging from popular presumption. As illustration of that truth, the remainder of this chapter will examine three prominent practices that derive their authority from

Government of the Day 73 the Crown and which reinforce the central feature of Canadian politics its executive dominance. The subjects are government and information, Crown and property, and executive and finance. GOVERNMENT AND INFORMATION

Executive dominance in a system of responsible government depends upon the Crown's privileged position in the collection and distribution of governmental information. Primacy in the latter activity, for instance, is based on the law of copyright, which briefly stated means 'privatization of government information ... occurs only with the consent of the government/31 The importance of information to the conduct of government is unquestioned, or so it would appear in Canada, where, aside from the literature on copyright, social scientists pay it scant attention. Yet if Americans are, as one US historian has labelled them, a calculating people, then Canadians are an inquiring people.32 Several rough measures may be suggested to bear out that proposition, beginning with an enumeration of previous federal and provincial royal commissions.33 In this century Canadian governments have made frequent use of the commission mechanism to inquire into both narrow and broad areas of public policy. Of the latter, some of the best known are the Royal Commission on Dominion-Provincial Relations (Rowell-Sirois, which reported in 1941), the Royal Commission on National Development in the Arts, Letters and Sciences (Massey, 1951), the Royal Commission on Bilingualism and Biculturalism (Laurendeau-Dunton, beginning in 1967) and, for a very recent example, the Royal Commission on Electoral Reform and Party Financing (Lortie, 1992). To these might be added commissions with a more specific focus, such as inquiries into the automotive industry, health services, and banking. Several royal commissions have dealt with the same topics more than once; grain and transportation are especially favoured subjects. These are commissions appointed at the federal level, but there is also an extensive array of provincial commissions. Between 1867 and 1982 there were 767 provincial royal commissions and commissions of inquiry with both a narrow and broad focus; among the latter might be listed the Royal Commission on Agriculture and Rural Life (Saskatchewan, 1954-7), the Royal Commission Inquiry into Civil Rights (McRuer, Ontario, 1968-71), the New Brunswick Royal Commission on Finance and Municipal Taxation (Byrne, 1963), and the Royal Commission on the Position of the French Language and on Language Rights in Quebec (Gendron, 1972).

74 The Invisible Crown The number and breadth of inquiries are impressive, yet those data scarcely indicate the extent of the investigation undertaken, for many of these bodies commissioned comprehensive research studies on specific topics as well (one hundred in the case of the Lortie Commission, to be published in twenty-three volumes, in addition to the three-volume report). All these endeavours share the common feature that they are 'predominantly concerned with knowing/34 Of course, in a free society individuals as well as governments may make inquiries. What is significant about Canadian practice is that so many public inquiries are conducted and, from the perspective of this study, that these inquiries 'take [their] formal origin in the legal centre of authority, the Crown/35 While it is true that there is a functional distinction between royal commissions and commissions of inquiry which is not always rigorously maintained, and while it is also true that the order-in-council that appoints these bodies cites an authorizing statute (usually an inquiries act), the relevant point to note is that they are appointed by and report to the Crown and that their investigations are for the benefit of the executive. Within its field of jurisdiction the provincial Crown has the prerogative power and is as autonomous in the matter of appointing commissions as is the Canadian Crown. That provincial power was judicially sustained in the only challenge raised to this executive act: The commission would then seem to me [the Manitoba Court of Appeal] to be in order, whether in the view that the appointment was made under a constitutional right... or [by] the powers conferred under the Act/36 Whether or not governments use the information provided or follow the proposals that are made is unimportant from the perspective of the royal commission as an instrument of executive choice. For the government of the day the royal commission is a valuable tool of public policy; it not only defines issues, it authenticates those that are chosen for investigation over those that are ignored. The appointment of the B and B Commission, promised by Lester Pearson in 1962 in a House of Commons speech he later described as the one of which he was the most proud, signified the central importance of language to Canadian politics and experience.37 That was recognized again, following the commission's report, in the first federal statute on language, the Official Languages Act, but also in the stimulus the commission gave to experiments in language teaching. Over time royal commissions have the secondary effect of focusing interest upon their own subject matter, as witness the Rowell-Sirois Commission, most of whose recommendations in 1940 were not immediately implemented, but who, through the

Government of the Day 75 precedence it awarded to central rather than provincial government questions, exerted an impact on social science scholarship for a generation. Indeed, that report reinforced a bias against the parochial provincial concerns that had largely been responsible for the commission's creation in the first place. The scholar who has studied Rowell-Sirois most closely has argued that its genesis lay as much in the ambitions of the new federal civil service mandarinate as it did in the calculations of the politicians.38 As with statistics, royal commissions influence politics in subtler ways than just through their recommendations; they '[definel issues by the categories employed, the questions asked (and not asked), and the tabulations published/39 To a large extent decisions on these matters are at the discretion of the inquiry, but the commission's terms of reference are set and its personnel selected by the executive. When to these powers are joined the executive's right to create (or not to create) a commission and to determine the disposition of the findings of those it does create, then the executive's discretion is clearly greater than that of its instrument. No matter how independent they may be in the conduct of their inquiry, royal commissions are agents of the executive in the larger sphere of public policy. Moreover, information is only one of their uses to government; they may also delay action, pacify dissent, and confer status. But the crucial decision whether or not to use them at all rests with the executive, and that freedom of choice strengthens government. In an unusual way a royal commission may also act as a control on social change by directing reform impulses into traditional political structures. Monique Begin, executive secretary of the Royal Commission on the Status of Women (1967-70), has written about the impact that body had on existing women's organizations. The commission's public hearings, she says, allowed each established group to be heard, rather than creating 'a distinct new national feminist association such as the American NOW'; thus a grass-roots consensus emerged from the discussions, committees, and executive meetings held by existing groups across the country. In the process, these associations became transformed 'with a new women-oriented mission that added to, or replaced, their traditional altruistic service roles.' Only after this ideological conversion, and after the royal commission had reported, did the National Action Committee take form. To this developmental sequence, which early on promoted public debate of women's issues among established representatives, she attributes the more rapid advance in this country than in the United States of 'social programs relevant to women ... as

76 The Invisible Crown well as ... of women's participation in public affairs/ 40 In this recollection, the former Liberal cabinet minister reveals again the long-term effect a temporary organization like a royal commission may exert. In the language of Graham Wallas, royal commissions are one way of knowing; but they are not the only way. In fact, they are an exceptional recourse. For the daily business of governing, there is the civil service, whose operation and administration as they relate to matters touching the Crown will be the topic of the next chapter. There is, however, an aspect of its work - the general collection of information - that may more appropriately be discussed here, before the subject of the distribution of information is introduced. Collection of data is primarily the job of Statistics Canada, an agency of the federal bureaucracy. The only reference to statistics found in the Constitution Act, 1867 is in section 91(6), where the Census and Statistics is listed as a matter of exclusive federal legislative power. In practice provincial executives do compile such data, and more than that, they have 'asserted their jurisdiction to exact, as property-owners, compliance with conditions which their legislatures could not constitutionally have imposed as law-makers ... [H]ere legislative power is a consequence of the executive's power ... and not vice versa.'41 Where both levels of government are active, conflict is possible, and it must be presumed that in such instances 'the federally compiled statistics would be regarded as definitive and conclusive.'42 In fact conflict in this field is rare; much more common is it for provincial governments to cite federally compiled statistics to bolster their case for improved treatment by the federal government. Confederation was established to achieve national purposes, and to that end statistics were essential. But Confederation quickly became an instrument for redistribution, as well. In the first Parliament the plea for an initial personal census was soon heard, for on that, said Alexander Mackenzie, 'depended the political relations of the several Provinces under the Union Act towards each other/43 All governments depend upon statistics, but federations depend even more so; le fédéralisme rentable is a slogan identified with modern Quebec governments, but its meaning has been understood in all provinces and long before the Quiet Revolution. Half a century ago, Ontario's grievance that it was the country's milch cow required corroboratory statistical evidence, but until the provinces began to modernize their civil services and establish their own executive agencies, such as the CCF's innovatory Budget Bureau and Planning Board, federal data prevailed for the reason the dominion statistician told the Rowell-Sirois Commission: The federal government

Government of the Day 77 under the British North America Act has no powers in certain fields but it has the right to know all about these fields. That alone is a tremendous power ... We are using statistics as a regulative force in fields that the provinces hold under jurisdiction/44 If the right to know is a tremendous power, so too is government's discretionary right to share the knowledge that it holds. This latter right is less unilateral than it once was; Freedom of Information legislation (at the federal level and in most provinces) partially opens the door to let the public see what government does, while a federal information commissioner (an official of Parliament) and comparable officials in the provinces oversee compliance by government institutions with the legislative provisions. Nonetheless, in the distribution as in the acquisition of information, the advantage again rests with the executive, whose authority derives in part from Crown prerogative. As the following excerpt from a publication of the Canadian Legal Information Centre notes, the extent of the prerogative is open to debate, but the executive focus to the control of information in the Canadian governmental system remains indisputable: Crown copyright is described in section 12 of the Copyright Act. It was taken from the UK Imperial Copyright Act, 1911. Section 12 says that where a work is prepared by or under the direction or control of the Crown or government department, copyright immediately vests in the Crown where it remains until publication and for 50 years more. Where a work is independently prepared but later published by or under the direction or control of the Crown or government department, copyright remains with the author until publication. Publication by the government immediately transfers copyright to the government for 50 years. Although the applicability of section 12 to the provinces is in question, the provinces can still claim copyright over protected works through Crown prerogative. Crown 'prerogative7 describes certain powers, rights, immunities and privileges necessary to the maintenance of government. These powers are unique to the Crown at both the federal and provincial levels. Among them are the exclusive right of the federal and provincial governments to print certain types of works. The goal of Crown prerogative is to ensure the quality, accuracy and credibility of the information. The works encompassed by the royal prerogative power are not well defined and may or may not cover databases. Although the Crown prerogative copyright has been cited in many judicial opinions, it has not been judicially tested, so its nature and extent are not certain. It is known, however, that this exclusive right to certain works by prerogative amounts to a perpetual term of copyright protection.45

78 The Invisible Crown Canadian policy differs sharply from that of the United States, where copyright protection is not available for any work of the United States government. Comparisons can be invidious, and this contrast is not necessarily to Canada's disadvantage. Openness in the United States, it has been argued, serves the information industry as much as it does the public. Moreover, Canadian policy in regard to information access is consistent with past practices of responsible government which grant primacy to the executive; it is congruent with previous decisions on information policy, such as an aborted attempt a decade ago by the Liberal government to dismantle 'Canada's depository system ... established in the 1920s by order-in-council'; and, more positively, it can be argued that 'Crown copyright provides the government with an opportunity to act as a trustee on behalf of the people to ensure that the public interest in the dissemination of the "peoples" works is being served.'46 Yet if knowledge is power, then limited knowledge is limited power. That maxim is borne out in Canada where federal and provincial crown corporations continue to play a major economic role (far surpassing government corporations in the United States), but where they are exempted from the requirements of freedom of information legislation and from the scrutiny of other watchdog agencies. This removes a significant portion of public policy activity from examination at the same time that it enhances cabinet's powers. Notwithstanding government counter-arguments that these are commercial enterprises which require the same confidentiality for their decisions as businesses in the private sector, by their actions governments refute that claim when they employ crown corporations for public policy purposes.47 Attempts by the auditor general of Canada to pierce this veil of secrecy in the case of the government's purchase of Petro-Canada ultimately failed. Though in the Federal Court the auditor received a sympathetic judgment, on the grounds that parliamentary scrutiny is 'meaningless [without! professional accounting and auditing support/ in the Supreme Court his bid to examine the documents relating to Petro-Canada's acquisition was quashed. Any other finding, said the chief justice, would 'result in a de facto shift in the constitutional balance of powers of the expenditure auditing process/ for auditors must deal with the implementation not the formulation of policy. Nor was the 'fusion of powers which characterizes the Westminster system of government' a justification for a break with tradition: 'That the executive through its control of a House of Commons majority may in practice dictate the position the House of Commons takes on the scope of Parlia-

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ment's auditory function is not ... constitutionally cognizable by the judiciary/48 CROWN AND PROPERTY

The problem of keeping the executive under control has emerged as a mid- to late-twentieth-century concern, the product it is said of governments that are too active and legislatures that are too passive. The administrative state - pervasive, intrusive, and impervious - is the object of growing discussion, and there is no shortage of proof that government in Canada has grown.49 Yet it needs to be recognized that executive dominance, which access to information and other administrative palliatives (for example, ombudsmen and assorted commissioners) are calculated to check, is a feature of Canadian politics that long precedes the rise of big government.50 It is disputable if Parliament ever controlled the executive, if there was ever a golden age before the walls of party discipline encircled the parliamentary caucuses. The attraction of legal and administrative remedies today, then, is the consequence of legislative ineffectiveness in the face of accelerated government. In its essential characteristics, government in Canada has not changed. The levers of power remain the same, only they are pulled more often than before in response to increased pressure, and they have the potential to affect greater numbers of people. As in the past, it is the unique position and authority of the Crown that gives government, the executive, its advantage. And that derives not from some mystical or theological rite but from the most concrete expression a political system provides - law. The following quotation from a recent Supreme Court judgment, though it deals in the first instance with a common enough matter, terms of employment, indicates the unique nature of one of the parties to that contract: It is also important to note that in Anglo-Canadian law, the relationship between a civil servant and his employer is not, strictly speaking, a relationship with an abstract being, the State: it is a relationship with a relatively more concrete entity, the Crown, which 'personifies the state' ... but exercises only executive authority: s. 9 of the British North America Act, 1867. The Crown is also the Sovereign, a physical person who, in addition to the prerogative, enjoys a general capacity to contract in accordance with the rule of ordinary law. This general capacity to contract, like the prerogative, is also one of the attributes of the Crown in right of a province: Verreault & Fils v. Attorney General of Quebec?1

80 The Invisible Crown It is the personhood of the Crown that makes Canadian executives both malleable and expandable, and less accountable than the theory of responsible government might suggest. For instance, government has the capacity to contract independent of legislative support; indeed, it is 'capable of contracting without legislative permission/52 It can incur expenditure on the authority of ministers of the Crown in the absence of a legislature, as before the first meeting of Parliament in 1867, or before the initial meeting of the new Alberta and Saskatchewan legislatures in 1905. Discussions about the division of powers or the operation of cabinet government generally too often forget that while the political executive is drawn from the legislature, and to be effective must command the legislature's support, 'executive power is not... the legal consequence of legislative power/53 Crown prerogative, supplemented by statutory delegation, is the sum of executive power. Here political and legal reality diverge. The executive in law is not the creature of the legislature but independent of it. This is one explanation (though there are others that dispute it) for the federal spending power - that is the power of the federal government to spend in areas where it cannot legislate, conditional grants being the perennial issue of contention. Equally, it offers a rationale for the contrary phenomenon of provinces directing money to matters that fall within federal jurisdiction.54 Into these and other disputes about the spending power, courts have been loathe to tread, since these are matters for political discretion which courts 'should not supervise/55 The full consequences of the Crown's general capacity to contract may not be immediately apparent. But when that capacity is considered, say, in connection with public ownership of resources (belonging to the provinces within their jurisdiction or to the federal government in the case of the North and offshore resources), the consequences begin to become clear. To take only one much-discussed phenomenon. Provincebuilding - that 'gradual, if uneven, emergence of the provincial state as entrepreneurial actor in staple-led economic development' - depends upon the highly convenient powers associated with Crown authority and control.56 The point is not that the Crown led to province-building, but that this development would have been almost impossible to achieve in the conditions the provinces faced without it. Consider, for instance, the choice of policy instruments available to governments who monopolize the powers of the Crown and who monopolize all stages of the legislative and financial process. While it is true, in Norman Ward's phrase, that the last word on the spending process belongs to Parlia-

Government of the Day 81 ment, in reality that last word - the ultimate legislative sanction of withdrawing support for the government - is a weapon almost never used.57 It is because of their dual privileges, as advisers to the Crown and masters of the House, that executives in Canada have been free to innovate. They have opted for public ownership through crown corporations, for example, to achieve at different times in this century largely conservative goals in Ontario, nationalist objectives in Quebec, and social redistribution in Saskatchewan. Neither the goals nor the instruments chosen were so unidimensional or mechanical as that statement implies; it is, however, the theme of choice and the variety of choices that need to be emphasized. In a comparison of Canadian and American experience with public enterprise, a Canadian scholar has written that 'the administrative habit of public ownership established itself in Canada/58 To the pragmatic and ideological reasons given for that habit should be added the significance of the general constitutional background of Canada as contrasted with that of the United States. What is distinctive about Canadian experience is not public ownership - that can be found in the United States but public policy. It is a mistake to think, as some American observers do, that public policy associated with public ownership need be socialistic.59 That is not borne out in Canadian practice, even in Saskatchewan under the CCF, where the emphasis was repeatedly placed on public management of resources and services. But the integration of cabinet with the Crown as person, as proprietor, assures the translation of government policy through its chosen instruments, whatever their form. The number of such agencies is large and their structure varied and complex. The relationship between them and government is not public. Privacy in this regard is defended in part by reference to Crown confidences; and the experience of the auditor general in the Petro-Canada case is duplicated across the country in the difficulties provincial auditors have in securing information. In a British case in 1971, which saw the New Brunswick Development Corporation successfully plead sovereign immunity, Lord Denning described the corporation as the alter ego of the government of New Brunswick.60 It is an apt description of that dimension of the administrative state, of which crown corporations are a part, whose function is visible but whose direction is clouded by a dominant, superintending executive. Because the cabinet commands the resources of the Crown, the locus of decisions and of advice leading to decisions remains fixed behind the wall of cabinet secrecy. The personnel of central agencies

82 The Invisible Crown interpenetrate the traditional cabinet decision-making structure; there is no room in the cabinet system for extra-governmental think tanks or policy institutes. The administrative state may enlarge the constellation of actors and interests that comprise the political system, but the gravitational pull of cabinet and Crown holds these elements in check and enforces the order on which cabinet government depends.61 EXECUTIVE AND FINANCE

The indispensable condition of responsible government is that the legislature, not the executive, control the purse. That was the cry of reformers in the 1830s and it is the plea of legislators in the 1990s. The logic of their case remains the same: if the Crown possesses revenue independent of the Assembly, then effective control over administration of government passes out of the legislature's hands. The object of concern today is that the Crown's advisers, and not its representative, will go unchecked. Accountability takes several forms: in the House governments are required to explain their policies; and through the bureaucracy they are expected to take responsibility for the procedures associated with the implementation of those policies. But the most visible reckoning occurs in Parliament's institutionalized and regularized oversight of spending. The budget, the estimates, the taxation statutes, the auditor general (in the case of Parliament), and the Public Accounts Committee are the set pieces of the parliamentary forum and calendar. It is no exaggeration to say that the panoply of the public purse, as Norman Ward recorded in the sub-title to his book of that name, is 'a study in Canadian democracy.' Even though the executive initiates and determines the priorities of expenditure, its control and supervision are pre-eminently the task of the legislature. Yet it is already evident from the discussion about the Crown and property that in practice the executive, through the spending power, through the ownership of resources, and through the influence exerted over public enterprises, violates that pure theory of legislative control of finances. When no 'agency of government manages the financial affairs of the whole government' and no 'financial plan or financial statement of the whole government' exists, then traditional mechanisms for extracting accountability cannot be depended upon.62 The solution to that problem is not the subject of this book, although it has, in Canadian fashion, been the subject of a royal commission inquiry.63 The theme here is the contribution the Crown makes to executive dominance, and in the area of finance there is one example which has not yet been men-

Government of the Day 83 tioned but which empowers cabinet to a significant and growing extent: special warrants. A special warrant (in the federal realm it is known as a governor general's special warrant) is an instrument signed by the representative of the Crown at the request of cabinet to approve expenditure out of the Consolidated Revenue Fund. The history of special warrants in Canada begins with the British conquest, and for most of the next two hundred years special warrants were used by government (colonial, federal, and provincial) when the legislature was not in session to meet unexpected expenses which, in the words of the present federal Financial Administration Act, were 'urgently required for the public good.'64 Though once based on prerogative alone, there is now in all Canadian jurisdictions a statute comparable to the Financial Administration Act which provides for special warrants. That legislation authorizes advice to the Crown; it does not empower cabinet itself to issue the warrants. The distinction is not moot; controversy in recent years over the use of warrants has centred, at least in part, on the circumstances in which the Crown's representative should sign these requests. In effect, controversy turns on the constitutionality of the procedure rather than on its legality. There is no doubt that statute law provides for special warrants, but there is both voiced and implied suspicion that executives use the warrants and the procedure required for their issuance as a means of circumventing the legislature. They may, as the Mulroney government did in 1988-9, use them in unprecedented fashion 'to meet ordinary payday requirements, the kind of requirements set forth [normally] in the Estimates ... after a new Parliament has met.' They may, as the same government did, use them to finance an agency (the Canadian Centre for Management Development), which they had established by order-in-council after legislation to that effect failed to pass through Parliament. First by custom and convention and then, since 1951, by virtue of section 30(4) of the Financial Administration Act, Parliament's approval for expenses under special warrants has been sought. But that approval is at best indirect, because the warrants are 'deemed to be included in the next Appropriation Act,' which may, as in the 1988-9 instance, deal with three-quarters of the total supply for the whole year. In availing itself of this procedure, as one senatorial critic observed, the government had 'opened ... an inviting boulevard, by which [it and successor governments] may take whatever money they wish to take - the minister has told us that there is "no absolute limit"/ as long as Parliament was adjourned for more than two weeks.65

84 The Invisible Crown Warrants involve the Crown in two respects: first, to become law they must be signed by the Crown's representative; and secondly, their use may be such as to lead the Crown's representative to exercise the reserve power and reject advice to approve them. In other words, there is a question of choice, because special warrants by definition lead to a departure from the normal balance in the executive-legislative relationship. It is as a deviation from conventional practice that the issue of special warrants assumes a constitutional guise. Warrants are used in lieu of governments seeking supply from the legislature. While there may be periods when that is appropriate - in emergencies or at election time between parliaments - in other circumstances constitutional propriety, as Eugene Forsey called it, can become an issue. For how long can special warrants be used, and in what circumstances? It is here that the constitutional diverges from the legal, with government invoking the latter in its defence and critics the former. If responsible government required the taming of gubernatorial power by the convention of legislative accountability, the problem of special warrants poses the conflict differently: the reassertion of the Crown prerogative to assure the political executive's accountability to the legislature. The issue arose in Saskatchewan in particularly vivid form in 1991, when the government requested and secured the prorogation of the legislature five months before an election had to be called, when the budget had yet to pass, and when the government faced an opposition motion that constituted a vote of confidence. For the next four months until election day the government met its expenditures through lieutenant-governor's special warrants. Opponents noted that by seeking prorogation, which is a prerogative act, rather than adjournment, the government avoided a vote which would have tested its control of the chamber.66 The propriety of this action, and of an earlier refusal in 1987 to summon the legislature but instead to resort to special warrants to meet expenditures, inevitably focused attention on the role of the Crown. In 1987 the lieutenant-governor was pressed by the government's critics to act - either to call the legislature or to dismiss the government. On that occasion, he responded that while 'not unmindful of the duties attached to my office' (which in this case had involved preparatory training as administrator when he was chief justice of the province), he saw no need to act. He did add that 'if I thought that it was the intention of the present government to continue the use of ... warrants ... for an indefinite period of time/ his decision would change.67 Although the lieutenant-governor believed the length of time special warrants were used

Government of the Day 85 was a crucial factor, the critics, who saw the government's failure to meet the legislature the issue, disagreed. The failure of the lieutenantgovernor to act in 1987 led to criticism of the Crown itself: The last shred of reason for having the monarchy disappears/ said a former deputy minister of intergovernmental affairs from the NDP period.68 The Crown's discretion became an issue again in 1991, for this time a sitting legislature was prorogued and special warrants followed. Thus there is a double liability for the Crown in the issue of special warrants. Warrants granted over too long a period jeopardize in the eyes of some the Crown's claim to political neutrality. For as long as they are granted, warrants unsettle the harmony of the legislature and executive, admittedly a tenuous balance at best in a system of executive dominance. The government of the day employs the Crown's prerogative in a multitude of ordinary ways in the conduct of public policy. Yet that daily dependence goes largely unnoticed because the institution of monarchy is treated as anachronistic, its visible signs too exalted and rarefied to hold meaning for the average citizen. The language of responsible government thus elevates the political executive to the exclusion of all else.

5

The Culture of Administration

In the twentieth century administration is still what it was at its origin: the secret garden of the Crown. R.F.V. Heuston

Executive dominance, whose legal source of authority emanates from the Crown, pervades Canada's political system. It follows that administration, the processes and instruments by which the executive seeks to achieve its goals, will both reflect and reinforce that essential character. If wide discretion marks the political executive, as it does, then wide discretion will be exercised by its civil servants. Discretion in this latter instance should not be confused with independence, however, for in a system of responsible government ministers are accountable for the decisions of their officials.1 Again, if the political executive is immune, or nearly so, to judicial review for its actions, so too will be its civil service. But administration is about more than bureaucracy; it encompasses the boards and commissions that regulate large portions of modern state activity. It also embraces the means whereby public business is conducted: the myriad rules, regulations, and directives that flow directly or indirectly from delegated legislation - that is, from legislative power that Parliament or legislatures have delegated to their respective administrative authorities.2 By definition and in practice administration is both expansive and flexible, characteristics that lead critics to warn of its potential for abuse through the exercise of arbitrary power. That is a long-standing concern, though no less real today as witness the warnings expressed in a series

The Culture of Administration 87 of reports by the Standing Joint Committee of the Senate and the House of Commons on Regulations and Other Statutory Instruments,3 but it is not the concern of this chapter. At issue here is the influence Canada's monarchical institutions have on the conduct of governmental administration. That influence, revealed both in the form and substance of Canadian administration, is distinct, on the one hand from Commonwealth monarchies like Great Britain and Australia, and on the other hand from Canada's North American neighbour, the United States. Here it is necessary to register a familiar caveat: the Crown is not invoked as a single causal explanation for the nature of Canada's administration. An interplay of forces has been at work, of which the institutions of Parliament and party government, the geography and economy of the world's second largest country, and a history of colonial tutelage are but the most obvious supporting considerations. Nonetheless, to omit the Crown from that list of conditioning factors would be to omit, it is argued, a determinative influence on what might be called the culture of Canadian administration. The imperial-like administration of the North-West Territories after their transfer in 1870 (and into the present day, if one accepts the claim that executive power conferred by the former Petroleum Administration Act of 1982 was equal to that held by Tudor sovereigns');4 the analogy repeatedly drawn between the department of Indian affairs and a colonial office with the Native peoples its subjects; the treatment of particular federal departments of government as virtual fiefdoms of their ministers (Agriculture under James G. Gardiner, Trade and Commerce under C.D. Howe, or Interior under a succession of strong leaders such as Clifford Sifton, Frank Oliver, and Charles Stewart) - these are products as much of an administrative arrangement of power as they are of party politics or ideology, and they owe their strength to a governmental system whose source of authority originates in the Crown.5 Other features of Canadian administration can be traced to a constitutional theory that has the Crown as its root. One is the central role accorded to the appointment power in the conduct of federal and provincial government. Among the special prerogatives of the prime minister is the right to recommend, in theory to Council but in practice now to the governor general, nominees for such senior positions as senator, lieutenant-governor, Supreme Court justice, and ambassador. But appointments are more extensive than this short list suggests, embracing the personnel of a labyrinth of federal and provincial boards and commissions, and they are used in Canada for distinctive purposes, par-

88 The Invisible Crown ticularly as devices for representation. In this regard the contrast between Canada and Great Britain is striking; in the latter country, scholars mention only briefly the question of personnel selection and make virtually no comment about partisan considerations.6 Appointments in Canada are immersed in a rich legacy of political patronage and disputes over its control that date back to the struggle for responsible government. After 1867 Lord Dufferin discerned the essence of Canadian politics when he observed that in a new country preoccupied with expansion and settlement, there were few social problems; instead 'the contentions of the day referred far more frequently to local and administrative interests/7 From the first, getting things done meant, as far as the federal government was concerned, dealing with issues at a sub-national level (in the constituency, province, or region). The absence of a corps of central experts meant that appointments, whether in or out of the public service, were made with an eye to accommodating local interests. Before the arrival in 1918 of a merit-based civil service, partisan loyalty was the overriding quality sought of appointees. But that concern did not lessen the idea of appointments also being used as an accommodative device, which over time took account not only of location but of language and religion and, much later, of gender and race. Unlike public service appointments which even in the nineteenth century were subject, however imperfectly, to legislative control, appointments to boards and commissions, which grew in number after the turn of the century, were vested in the Crown on recommendation of the political executive. With them there was no sharing of responsibility, or limitation on the object to be achieved. In modern Canada the power of appointment has been used not only to accommodate particularistic interests but to recognize the claims of whole regions, who under the plurality electoral system may find themselves excluded from the governing party. The Trudeau government, for example, acted in this manner when western Liberals failed to be elected during the 1970s and 1980s. Thus appointment, one of the prerogatives of responsible government, was used to correct imperfections in representation - an object more palatable in colonial times, it might be presumed, to the governors than to the reformers of British North America. Executive dominance in Canada is reinforced by a culture of administration in which subordinate legislation and appointment by the Crown are granted wide scope. A third contributing element to that dominance, also influenced by the Crown, concerns policing or, more precisely, the administration of justice. The role of the police in Canada's governmen-

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tal structure receives rare attention by political scientists, even though Canada is unique among the Anglo-American federations in the arrangement and administration of its police power.8 Nor is there any recognition in political science, as opposed to legal, literature that the supervision of police activity and the manner and occasion for its exercise derives 'from the Crown and is inherently an exercise of the prerogative powers of the Crown/9 National security questions sometimes attract more comment than domestic policing matters, but even here, when proposals to create a new civilian security group were being debated in Parliament in the early 1970s, 'no academics, and no journalists ... twigged to the problems. The secrecy surrounding security matters, and attendant ignorance, handicapped perception of the problems/10 Yet policing and the administration of justice are as much public policy matters as, say, health or agriculture legislation. Arguably, given their mandate to oversee the implementation of law, police and the administration of justice are fundamental topics for academic study. In light of their association with the Crown's prerogative, they are appropriate subjects for examination in this chapter. INSTRUMENTS OF ADMINISTRATION

Canadian and provincial political institutions are based on the Westminster model in which Parliament is sovereign but where for a long time party discipline has made government supreme. In the eyes of the public and the media, Parliament continues to be the heart of the political system because the executive sits in the legislature. Yet the sheer size of the public sector and the complexity of what it is expected to do have caused the true locus of governmental activity to shift from institutions that are formal and visible to those that are diffuse and obscure. Collectively, the latter may be grouped under the label administration. Sir William Armstrong, former head of the British civil service, has noted several consequences for the conduct of politics that flow from this relocation. As the need to set priorities and reallocate resources increases, management skills take precedence over traditional political talents; civil servants as opposed to ministers attract greater interest; and there is growing concern to make the operations of government understandable, accountable, and responsive to the public. Perhaps the most striking change, he says, is 'the search for unity and consistency among activities which hitherto were regarded as diverse and either not reacting with each other at all, or so remotely as to be not worth considering together/11

90 The Invisible Crown The preoccupation with imposing order on events is not a uniquely administrative function; the rational policy-making processes promoted by the Trudeau government in the 1970s were another manifestation, and so, too, is the appeal today to the higher law found in the Charter. But it is through the political executive's control of administration that unity and consistency are most directly to be achieved. Legislation on the statute books can never be more than discrete in objective and general in terminology, even though it is drafted with an eye to its administration. In fact, the way legislation is drafted contributes to a sense of lack of consistency, because 'to a Government a Bill is not primarily a document designed to enable Parliament to consider those matters which are its particular concern but a potential act on which administration will be based/12 The difference in perspective that government and parliamentarians bring to legislation explains much of the frustration that legislators experience with their role, while it contributes to pressure for procedural reform. It is a frustration that has grown in direct relationship to an expanding administration that displays the characteristics Sir William Armstrong has described. The lever of executive control is the Crown, the repository of power delegated by Parliament (and legislatures) and the source of authority whereby the executive equips itself and its agents, including regulatory bodies, to carry on the administration of government. As will be demonstrated, the power conferred is immense, the control weak, and anxiety about its use slight except among a few parliamentarians. To begin with the Crown as repository of administrative power. Part of the Crown's power derives from the royal prerogative which Dicey defined as 'the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown.' How much of the Crown's power is composed of the prerogative is imprecise and therefore open to question, although the best answer would seem to range between little and very little. Canadian authorities who have examined the subject most thoroughly, for instance Rene Dussault and Louis Borgeat, conclude that 'il existe tres peu d'arrétés en counseil ou des proclamations edictés en vertu de la prerogative royale.'13 This assessment ignores the Crown prerogative in the matter of appointments, but from the perspective of administration it appears accurate. Moreover, it is borne out by earlier studies, such as the important Third Report of the Special Committee on Statutory Instruments (1968-69), which found only one 'current example of what might be called a legislative use of the prerogative.'14 The extent to which the prerogative is used for

The Culture of Administration 91 legislative purposes in the provinces would require an extensive investigation not feasible here, although Dussault and Borgeat found no record in Quebec's Gazette officielle of an extant example. The reason for the dearth of prerogative-based regulations Dussault and Borgeat make abundantly clear; power delegated to the Crown by Parliament has advantages over power inherent in the Crown: 'Si le gouvernement et ses ministres peuvent se déléguer, par l'intermédiaire des lois, les pouvoirs réglementaires qu'ils jugent nécessaires, la prerogative royale devient pour eux inutile et méme néfaste sur le plan politique, a cause de son caractére peu démocratique/15 Democratic delegation is delegation nonetheless. It empowers the executive, and, as the Standing Joint Committee on Statutory Instruments repeatedly observed, deprives Parliament of practical supervisory control. Few opportunities exist to debate the merits of statutory instruments (the generic term now used for the rules and regulations that delegated legislation gives rise to) because few statutes require Parliament to pass judgment on the instrument (that is, either to affirm or disallow it). Scrutiny by committee and a report from that body to each session of Parliament constitutes the extent of oversight. The problem is greater than the absolute number of regulations and statutory instruments would suggest, although that in itself is not insignificant; 653 of 3,326 orders-in-council passed in 1976 were so described, while another 750 concerned different aspects of appointments.16 The heart of the problem is the general nature of the powers conferred on the executive, with the result that 'many regulations are made to give effect to policies ... not embodied in any statute and which Parliament has never considered or even had the opportunity to consider/ Because the conferral is permissive and often lacks criteria to guide the exercise of discretion, a further problem of sub-delegation occurs. The Joint Standing Committee described the result as a case of 'the actual law enforced [lying] in the officer's mouth.'17 Those instructions or guidelines an officer receives are in-house - that is departmental in origin and therefore escape scrutiny by the committee and are also often exempt from access to information laws. In such situations, 'the power of decision is simply conferred'; and as John Clifford, a scholar of the subject has observed, in matters of administrative policing that is tantamount to officials making 'decisions which respect private and public interests' and having the discretion to 'choose between coercive and conciliatory action.'18 Administrative policing is an important but almost unstudied area of policy implementation, despite the presence in

92 The Invisible Crown the federal government, according to Clifford, of 'more than 100 inspectorates [for instance, in fisheries, mining, agriculture, customs] and other units in more than 30 institutions/ The focus of this discussion is not on bureaucratic or regulatory activity per se, but on administration as an extension of the Crown's power and as a support for executive dominance. The key to understanding the relationship between the Crown and administration lies in the composition of Parliament, or more precisely in the telescoping of the Crown-inParliament. That integration is as conceptually appropriate to Canada's federal order as it is to Great Britain's unitary system of government. The true significance of Hodge v. the Queen lies in the principle there enunciated that provincial legislatures are not delegates and therefore are not hampered in their ability to delegate legislative authority. When to that arrangement is added the Liquidators of the Maritime Bank case, which divided the prerogative powers along the same lines as legislative powers, the Crown-in-Parliament conception is replicated in the provinces, who have the power to rely on the executive to regulate, whether by prerogative power or by delegated legislative authority. In the United States the separation of powers principle has been thought to prohibit the delegation of legislative power on the ground, writes the British constitutional theorist, Geoffrey Marshall, that 'Congress having had legislative power conferred upon it by the constituent People could not be permitted to abdicate it or transfer it into other hands.'19 That this is no abstract generalization the United States Supreme Court has recently underlined. In I.N.S. v. Chadha in 1983 the Court struck down the legislative veto (an attempt by Congress to delegate substantial regulatory power to the executive while maintaining some supervising control over it), holding it conflicted with the separation of powers doctrine. As one dissenting justice noted, in this ruling the Court '[struck] down in one fell swoop provisions in more laws enacted by Congress than the Court had cumulatively invalidated in its history.' As an aside, but to illustrate again the strength of the separation of powers doctrine and the contrast it creates with Canadian practice, federal courts in the United States cannot be given any executive functions. In practice, the Supreme Court has refused to give advisory opinions to the executive on the constitutionality or interpretation of a proposed law. One reason for this is that the judiciary views advisory opinions as an executive function, and therefore beyond its scope. Tribe also notes, that in the seven states 'in which advisory opinions are allowed ... the judges

The Culture of Administration 93 who render such opinions often maintain the notion that, in so doing, they are performing as extrajudicial function, and that such opinions should consequently have dramatically limited stare decisis effect/21 In Canada neither Parliament nor a provincial legislature is limited in the power it may delegate to an administrative agency, although reasoning analogous to the separation of powers decisions in the United States - but used this time to uphold the federal-provincial division of powers - has prevented Canadian legislatures from delegating power to one another. They may, however, delegate to each other's administrative authorities.22 Thus, Canadian legislatures are insular only as it involves contacts between themselves; in relations with the executive they are almost promiscuous. Despite protestations to the contrary - that statutory instruments 'derive their authority from the statute which creates the power, and not from the executive body by which they are made' the executive in Canada can in effect legislate.23 In the words of a former deputy minister of finance, who believed his minister could make whatever advances were necessary without parliamentary approval to the financially strapped Expo 67, Tt's simply a formality. Hell, who's to stop us? Surely not those guys on the Hill.'24 Unlike the American but like the British constitution, the Canadian constitution is unduly dominated by one institution, which in theory is the legislature but in practice is the committee (cabinet) who controls the legislature.25 On balance, the effect of executive dominance has made the administration an ally rather than an adversary of government. This is not to say that long periods of one-party rule may not raise doubts about bureaucratic neutrality in the minds of a new government composed of a different party. Nor does it mean that the bureaucracy is not at times suspicious of government practices and policies that appear to subvert that neutrality - for example, the proliferation of exempt staff (in the form of executive and special assistants), the growth of order-incouncil appointments, and the rise of an anti-bureaucratic sentiment on the part of some executives who criticize their public service for having grown elitist and remote and, therefore, unrepresentative of the society they serve.26 But even when the relationship is sour, there is never any question but that the public service belongs to the executive. That proprietorial cast of mind is as strong today in the era of meritocracy as it was in the age of patronage, and it is held by all governments regardless of partisan persuasion. Lest it be forgotten, public servants share this view. That does not mean that they are linked to the executive by partisan sentiment or that as government employees they feel inhibited from

94 The Invisible Crown being politically active where this is allowed. It does mean that in the Westminster model of cabinet government, public servants see the executive, not Parliament or its watchdog agents, as their master and, even, protector.27 In law the relationship is one of contract. It is understandable that deputy ministers whose appointment and advancement depend upon the prime minister (or premier) hold this attitude. At this rarefied level the near symbiosis of deputy and minister may be extensive, as is chronicled for the Pearson years by a former deputy minister, Tom Kent. Among his revelations is the claim that soon after the Pearson government came to power 'contact on policy between Quebec and Ottawa was almost entirely through Gordon [Robertson, secretary to the cabinet] or me/28 This was because Jean Lesage, premier of Quebec, refused to deal with Pearson's Quebec ministers, Lionel Chevrier and Maurice Lamontagne, but knew and liked the two senior officials. Robertson had served as his deputy minister during the St Laurent period when Lesage was minister of Indian and northern affairs. The personal relationship recorded by Kent is exceedingly strong by any standard. It is duplicated neither at all levels of the public service nor necessarily even at the very top when other individuals occupy the same positions. Clearly, personality and previous acquaintanceship are crucial factors in determining the nature of these relationships. For instance, Diefenbaker's legendary suspicion of the senior bureaucracy (excluding R.B. Bryce, the clerk of the Privy Council) as a haven of Liberal sympathizers, created an opposite environment. The significant conclusion to draw from this brief excursion into contrasts in governing styles is that the executive-administrative structure in Canada allows for a range of influence. The dominant cabinet figures (of the past more than the present) - men such as Gardiner, Howe, or Allan MacEachen the regional lieutenants who made ministerialism an organizing principle of the government party under Liberal leaders such as Mackenzie King, St Laurent, and Trudeau - exploited an administrative structure that made them and their departments semi-sovereign powers.29 In other systems of government the symbiosis between administration and executive is less marked. In the United States, in addition to 'the general rejection of a prerogative power ... our framers ... divided the power to appoint from the power to create officers, and added a confirmation check/30 In France the droit administratif', with a separate corps of officials as well as tribunals to oversee its implementation, acts to sever the administration from the government in a manner totally foreign to the Westminster model.

The Culture of Administration 95 The implications of the Canadian arrangement of power, which makes the administration, if not an emanation of the executive, at least the subject of its proprietary interest, pervade the political system. The structure and operation of elites, the aggregation and expression of interests, the direction and responsiveness of policy, are all affected by the nature of administration. More than that, Canadian public policy has traditionally been concerned with governing by accord. The instruments used were political; in federal-provincial relations that meant at one time negotiations within political parties but more recently between executives from the two levels of government. The skills of the administrator were highly prized in reaching negotiated agreements. As opposed to United States experience and to Canadian politics since the Constitution Act, 1982, law was not 'a prevalent field of study in preparation for administrative careers/31 The Charter and the rise of individual litigants pose a challenge to such procedures, for the Charter offers an opportunity through the courts to test existing policy, and now that there is a higher law against which to evaluate new policy initiatives, this preparatory route will change. Thus, to the many results attributed to the Charter must be added one more - its influence on the culture of Canadian administration. It is now unlikely that any Ottawa senior civil servant could be described as Maxwell Henderson, a former auditor general of Canada, described him in the 1960s: 'He was so closely geared to what went on in London that he dismissed Washington as so much Americanism. He would cite the constitutional differences without understanding them/32 It is commonplace to note the discrepancies that exist between the provisions of the Constitution Act, 1867, and the actual conduct of government. Most especially, the conventions associated with responsible government, which have made Canadian ministers popularly though indirectly accountable, are nowhere to be found in the text of the Constitution Act. Sections 9 to 13 of the act vest executive authority in the Queen and provide that authority to be exercised by her representative, the governor general, assisted by a Privy Council for Canada. While these provisions inadequately explain the nature of modern cabinet government, it would be a mistake on the other hand to dismiss them as 'out-dated anomalies that [are] now moribund/33 On the contrary, for the administration of Canada they continue to possess relevance, and for the following reason offered by a specialist in administrative law: What has marked off the Canadian situation as somewhat peculiar when com-

96 The Invisible Crown pared with that of Britain, Australia and New Zealand, is that both the Dominion and the provinces have continued the tradition of bestowing in their statutes a great deal of regulation-making and adjudicative (quasi-judicial and administrative) powers on the Governor in Council and Lieu tenant-Governor in Council respectively.

At the national level, the reason usually given for delegating power to the cabinet as a collectivity rather than to individual ministers (although there are exceptions to the custom) is the federalized nature of cabinet representation. As a consequence, to delegate power to individual ministers would be to ignore the geographic imperative always present in Canadian politics and to exclude selected regions or provinces from exerting influence through their ministers on government policy or decisions. That argument, adapted to take account of regionalism within provinces, would explain comparable delegation practices there. Another equally tenable proposition for Canada's exceptionalism among the older Commonwealth monarchies would acknowledge the long arm of the colonial struggle for responsible government. Collegial unity was a precondition for mastering the art of self-government, for to succeed in this imperial innovation the British North American colonies had to present a united front to the governor and his British officials.34 The emergence of party government reinforced the executive tactic of acting as a collectivity. Federation offered a new challenge for parties to master, one which added an additional reason to think and act in collegial rather than individual terms. References to collegiality in regulation-making are more apparent than real, however, as the Standing Joint Committee liked to observe. For although most regulations are made by order-in-council by the governor-in-council, it is an illusion to think that the Council in this respect is the full cabinet or even one of its committees meeting as a deliberative body. Most orders-in-council are 'recommended for his Excellency's approval by the Special Committee of Council which consists of ten ministers with a quorum of four.'35 In practice this means that, despite appearances, scrutiny of a regulation by all is less common than sponsorship by an individual minister. Such is the provenance of orders-incouncil recommended to the Queen's representative for the exercise of the Crown's discretion. Enough has been said earlier about the institutional, political, and constitutional constraints that hedge the Crown in rejecting advice offered by the political executive. Nonetheless, reporting on a survey of lieutenant-governors conducted in the 1970s, John

The Culture of Administration 97 Saywell said that 'they do not regard themselves as rubber stamps but would be prepared to refuse to sign an order-in-council if they felt it violated the public interest or was illegal or corrupt/36 At the same time Roland Michener assured a Senate committee that 'if I felt there was something of considerable moral import and the government had not come to the right conclusion, I felt free to send it back and suggest that they should have another look at it/37 But the political reality of their position is, as Eugene Forsey noted in response to Michener's description of his role, that where an order-in-council is made under a statute, 'then I don't think there can be any question about [refusing indefinitely to sign it]/ Then there are orders-in-council that are recommended by a government rejected at the polls. Here the Crown may refuse advice on the ground that it comes from ministers who no longer represent the electorate. The precedent, which Eugene Forsey tirelessly reminded students of the Canadian constitution, lay in Lord Aberdeen's rejection of appointments recommended by Sir Charles Tupper following the Conservatives' defeat in the general election of 1896.38 R. MacGregor Dawson disagreed with that interpretation, arguing that there was 'a wide distinction to be drawn between a badly conceived or unfair action by a Cabinet and an action so at variance with the law or spirit of the constitution that it impedes the existence of parliamentary institutions/39 It is not surprising that authorities should disagree over such matters; ambiguity envelops both the question of limits to discretion and the content of the constitution. Rather more surprising is evidence of uncertainty on the part of the Crown's representative as to what government may do with or without his participation: There are,' said Roland Michener, 'many instances where a minister has authority under a statute to make a regulation himself, but I do not think it involves the Governor General. I do not know of any case. He does not need confirmation by the Governor General if it is that kind of order/40 How many instances of gubernatorial evasion are there? The answer is unknown, but it is not unreasonable to suggest that, given the difficulty already noted in scrutinizing regulations, each helps feed executive pretensions about the extent and source of its powers. In a speech on 'Subordinate Legislation, the Rule of Law and the Constitution,' Forsey recounted the story of an unnamed administrative commission that passed a regulation for which the Standing Joint Committee could find no basis in law. When asked if the commission was relying upon the royal prerogative, its spokesman said no, the source was 'the ordain-

98 The Invisible Crown ing power of the Cabinet/ This he defined as 'a long-standing Canadian tradition, which has now hardened into law, by virtue of which the Cabinet can do anything which is not inconsistent with a statute/41 The ordaining power (the power to make law by royal prerogative) is one of three ancient royal legislative powers which disappeared in the seventeenth century before the courts and through the Bill of Rights, on the premise that 'the monarch without Parliament has no general legislative power in the realm/42 This inaccurate depiction of the scope of executive power is confined not only to Canada; in 1980 Sir William Wade remarked critically on the practice of 'extra-statutory concessions' granted by the United Kingdom's Department of Inland Revenue, which had no basis in law and looked very much like a modern version of the dispensing power.43 Administrators were mistaken about the breadth of power they possessed, said Wade, a confusion he attributed to inadequate knowledge of law among those senior civil servants who carry out policy. The absence of a legal perspective on the implementation of policy is but one indication of the imperfect fit between law and administration. Parliamentary supremacy has led British, and common law courts generally, to adopt an attitude of restraint in matters of executive activity. There are two reasons for this: political control exercised through Parliament has been deemed a satisfactory check on maladministration; and cabinet is viewed not as 'an "executive" instrument in the sense that it possesses legal powers ... [but as] a policy-formulating body/44 That interpretation has come into question on several fronts, in Canada most probingly in Ontario's Royal Commission Inquiry into Civil Rights (the McRuer Commission) and the debate its report generated.45 But the intermingling of law and administration is made more complicated here by an additional consideration. The Canadian cabinet, as distinct from its Commonwealth counterparts, has long exercised quasi-judicial power in its capacity as a review body that hears appeals from administrative tribunal action. The conflicting perceptions resulting from this overlay of executive function have been judicially explored twice in recent years: in Attorney General of Canada v. Inuit Tapirisat in 1980, and in National Anti-Poverty Organization [ÑAPO] v. Canada (Attorney General) in 1989. Each case involved cabinet's handling of appeals from decisions handed down by the Canadian Radio-Television and Telecommunications Commission (CRTC). In each the claim was made that cabinet procedures for hearing appeals were unfair (for example, in the first case,

The Culture of Administration 99 plaintiffs stated cabinet acted before it heard their counter-arguments, and in the second that cabinet reversed a CRTC decision in the absence of any counter-arguments from the contending parties). In each instance justices of the Federal Court of Appeal or the Federal Court (Trial Division) had described cabinet's authority when acting as an appeal body as statutory and not purely political. In the ÑAPO case, the Federal Court went much further, concluding that 'it is difficult to describe those powers in adjectives other than arbitrary, despotic and autocratic/ Yet on appeal, the Supreme Court in both cases leaned in the opposite direction and spoke of 'political science pathology/ of 'legislative' power conferred on the governor-in-council, and of 'the nature of the decision [facing cabinet] ... as a policy matter/46 Perhaps most significant for the maintenance of executive dominance was the rejection of the argument that the advent of the Charter required an alteration in old administrative attitudes. The Crown is the point of convergence for politics and administration in the Canadian system of government. It acts on advice of the political executive; it is the repository of power delegated by the legislature; and government is conducted in its name. The conventions of responsible government normally reduce the potential for conflict over the conduct of administration. However, on the occasions when that does happen, as in disputes over the power of the auditor general or over the operation of cabinet in its role as in administrative appeal tribunal, then the judgments of the Supreme Court reinforce the fundamental norm of Canadian government - the primacy of political values. Arguably, the judgments of the highest court are congruent with both the constitutional theory and the history of Canada, most particularly the history of cabinet. It should be remembered that as the working committee of the Privy Council for Canada, cabinet is assigned under section 93(3) of the Constitution Act another quasi-judicial role - to hear appeals on the actions of provincial authorities that affect the educational rights of denominational minorities where such exist, and, if necessary, to initiate remedial legislation to restore those rights. Though so mobilized only once, at the time of the Manitoba School Question, the Canadian Privy Council then (and presumably on any future occasion) looked and acted like the British Privy Council: formal, ceremonial, and judicial.47 Administrative tribunals, whose actions may be reviewed by cabinet as in the above cases involving the CRTC, are principally a phenomenon of the post-Second World War period.48 This is particularly true in the federal sphere of government, where before 1945 the most prominent

100 The Invisible Crown regulatory agency was the Board of Transport (originally Railway) Commissioners, whose concerns embraced contentious questions such as freight rates. At the provincial level there were more such agencies in the pre-war period, mainly because the division of jurisdiction in sections 91 and 92 of the Constitution Act placed property, labour and municipal matters (each productive of licensing and control disputes) in the hands of the provinces. There is a rich literature that deals with these agencies and administrative law, much of it of fundamental importance for the study of politics. But for the purposes of this discussion, the interest in administrative tribunals, boards, and commissions is restricted to matters that are linked to the Crown and executive dominance. Essentially, those are questions that touch cabinet's review function and the appointment procedure whereby the personnel of these bodies is selected. It is to that last subject and to the more general one of administration and appointments that the argument now turns. ADMINISTRATION AND APPOINTMENTS

Appointments to the administration and control of appointments have been central questions of Canadian politics since the struggle for responsible government. Colonial reformers wanted, and ultimately achieved, the right to advise the Crown in its use of patronage. For the politicians of British North America, self-government meant not only a monopoly over the selection of local office-holders but also control of senior administrators who served the governors (the most visible being the civil secretary, in effect the chief officer of the executive government) and who were designated by the imperial government. The demand was self-serving, but the motivation behind it was not as venal as British observers sometimes depicted. Metcalfe was right, in 1843, when he informed the colonial secretary, Lord Stanley, that the reformers' 'exclusive views ... were almost literally confined to the possession of patronage for party purposes/ But the inference he drew from this 'cupidity' was misleading. Metcalfe wanted, he said, to conciliate 'all parties, by bringing into the public service the men of greatest merit and efficiency, without any party distinction,'49 and for that reason he labelled the reformers 'opponents.' His view of the Crown prerogative was as Utopian in British North America in the 1840s as it was in the mother country a century before: Tn eighteenth century England ... patronage was essential to the maintenance of the Constitution. If the King, or the King's officers, did not possess this means of persuading men to accept

The Culture of Administration 101 their authority, would not the conflict between Crown and Parliament break out once more?'50 'A compliant House of Commons was essential/ says Finer, if the British constitution that followed the settlement of 1688 was to work.51 Patronage was as central, therefore, to the operation of British politics as it was to Canadian but with this significant exception: government jobs were the chief favours to be distributed in the colony, for there were few honours in the form of commissions or titles. There is no study of honours in Canada; even the subject sounds arcane. Except for the fiveyear period when R.B. Bennett was prime minister, titles have not been conferred by the Crown in over seventy years. (This discussion excludes awards such as the Order of Canada, because of its recent origin and because it is not granted on ministerial advice as were the imperial honours.) Even before 1920, honours were recommended comparatively sparingly and with specific political ends in view. Self-abnegation in this matter on the part of the senior member of the Empire/Commonwealth deserves examination, not only for what it reveals about the country's political culture but also about the conduct of its politics. In the sister federation of Australia, where the democratic impulse may be presumed as strong as in Canada, honours have been prominent, and their recommendation a subject of contention between federal and state governments. They were part, says one critic, of the ideological cement that prevented class detribalization.52 The reason for raising the subject is to note that in opting to reject honours - even going so far as to reject British proposals that the leaders of Canada's largest cities be granted the title lord mayor, as Sydney and Melbourne officials had in 1902 - federal politicians chose to rely on jobbery, as it used to be called, as the principal currency of politics. The result, said O.D. Skelton in his Life and Letters of Sir Wilfrid Laurier, was that 'the distribution of patronage was the most important single function of government.'53 In the absence of other means of recognition, Canadian politicians looked to patronage in the public service to keep the executive in harmony with the legislature. Since elections were won in the constituencies, success there depended on paying minute attention to the distribution of government clerkships, inspectorships, agents, and more. The imperative of partisan politics thus reinforced the proprietary view of the civil service the political executive had inherited from the colonial period. More than that, responsible government in theory and in practice meant the administration must continually be subordinated to maintain political power and accountability. In a system of

102 The Invisible Crown fused power, where the legislature had no role to play in supervising the administration, control by the political executive was paramount, and that began with the cabinet's monopoly on advice to the Crown in the matter of appointments. Government control of appointments decreased after the end of the First World War and the passage of the Civil Service Act of 1918, although such minor officials as rural postmasters and temporary employees were excluded or selectively exempted from its operation. These last proved a significant exception, as James G. Gardiner, minister of agriculture in the 1930s, demonstrated in his political exploitation of the Prairie Farm Rehabilitation Act. Using ministerial power delegated to him under the act to appoint 'temporary, technical, professional and other officers and employees as he deemed necessary and expedient/ Gardiner employed not only soil experts and engineers but an army of inspectors paid on a per diem basis. These last spent more time inspecting the health of the Liberal party organization on the prairies than they did dams and dugouts.54 In the provinces, a non-partisan civil service arrived later, with Saskatchewan's Public Service Act of 1947 in the forefront. That act provided for competitive examinations and the grading and classification of positions, along with two innovations: collective bargaining between government and its employees, and a provision that allowed government employees to participate in politics. Some provinces, Saskatchewan among them, had embarked earlier on this enterprise but had made only hesitant progress in achieving modernization, while others, Quebec most notably, did not initiate change in this direction for more than another decade.55 Notwithstanding the decline of political patronage in the ranks of the public service, the appointment principle continues to flourish at the deputy minister level and in the multitude of administrative tribunals, boards, and commissions created by the federal and provincial governments. The number of positions, indeed the number of boards and commissions, are imprecise. In Ontario, for example, the Globe and Mail has reported totals for the latter that range from 370 to 600. The positions themselves run to several thousand, although they vary considerably in their terms; some are full, others part-time, some are paid, others are not. At the federal level, the numbers are also large (470 governor-incouncil full-time appointments and 1,750 part-time appointments), when compared to figures for the United States and Great Britain. While recognizing the totals as open to dispute, two authors who have studied the Canadian bureaucracy conclude that 'among the three systems ...

The Culture of Administration 103 Canadian politicians [appear to] dispense a good many full-time appointments considering the comparatively small size of the Canadian federal bureaucracy/56 From the point of view of executive dominance of the political system, it is not so much the absolute number of personnel that is significant as the opportunity for influence which their appointment offers. Different scholars interpret differently the nature of that influence. Reg Whitaker sees the appointments to regulatory agencies as constituting a new patronage, one that is middle class and designed to accommodate specialized clienteles. S.J.R. Noel believes that the important change from past practice lies in the use of appointments to influence advertising agencies, polling firms and media consultants rather than to oil the oldstyle electoral organization. Sutherland and Doern say that 'governor in council appointments are the Canadian vehicle for improving the bureaucracy's responsiveness to political agendas/ in other words, to see that election promises are translated into policy but at the same time 'keeping the public service pure/ Others, such as Thomas Flanagan, take a less benign view of the political-regulatory agency relationship. Provincial governments, he says, 'have often held commissions in check by tactics such as appointment of less activist commissioners or even leaving appointments vacant, refusing to appoint tribunals to hear complaints and rejected proposed amendments/57 The validity of these interpretations can be decided elsewhere, but what they share must be emphasized: through its control of appointments the political executive exerts a singular influence over a wide range of regulatory bodies, many of which, it might be noted, were established in the first place so as to keep their controversial or technically complex subjects out of the hands of politicians. If it is true that the power to tax is the power to destroy, then the power to appoint is the power to influence. Canadian governments have acted on that presumption when making appointments to cabinet, to the upper houses of legislatures (in the provinces when they existed and to the Senate still), to the courts (though cautiously), and to the administration. The public and its representatives accept and encourage such appointments, not on partisanship grounds but in furtherance of such values as a representative bureaucracy: The Federal Government should use Governor-in-Council appointments to increase participation of visible minorities on federal boards and commissions as well as in the senior management of the Public Service and Crown Corporations/58 The same affirmative action argument has been advanced at different times for order-in-council appointments to increase the representation of

104 The Invisible Crown women, Native peoples, and francophones. Making laws is only part of what governments do; they also symbolize and legitimate the societies they serve. That is customarily said to be the primary role of the Crown. It is open to question to what extent and how well the Crown performs that task in Canada today; but there is no doubt that the Crown's appointment power is exercised on advice of a political executive that seeks to achieve through appointments the inclusion of interests. The appointment power is the workhorse of elite accommodation, and for that reason alone the political executive is loathe to share its prerogative right to make recommendations. Nor has it; political acquisitiveness has made any suggestion that a board of control supervise appointments unpalatable. Nor can it; Eugene Forsey labelled the McGrath Committee's proposal that a House of Commons committee scrutinize order-in-council appointments a travesty of constitutional principle, and further advised the prime minister (Brian Mulroney) that 'it is no business of the House or of its Committees to take part in governing the nation, including the staffing of the Public Service or the emanations of the Crown.'59 Except for judicial appointments, for which the government has established the custom of consultation with the Canadian Bar Association, all other appointments remain where they have always been, in the hands of the political executive. That does not mean that the recommendations made are arbitrary or taken in the absence of advice - there is extensive and lengthy consultation - but the discussions are intra-party and private. Recommendations that they be open and, it is argued, more accountable go perennially unheeded.60 THE ADMINISTRATION OF JUSTICE

An aspect of governing distinct from the traditional bureaucracy and from regulatory boards and commissions is the administration of justice, a responsibility that embraces the implementation of law as well as policing but excludes the judiciary. The distinction arises on two counts. First, the linkage between justice and the Crown prerogative is more precise than in other areas of administration because the constitutional authority to uphold and enforce public rights historically belongs to the Crown. Section 63 of the Constitution Act, 1867, recognized the linkage by requiring the attorneys general of Ontario and Quebec to be members of their respective Executive Councils. Secondly, justice and policing are less amenable than the activities of the public service and regulatory bodies to the customary mechanisms of political accountabil-

The Culture of Administration 105 ity. The unique nature of law - the specialized knowledge and training it requires - as well as the concern that surrounds its application - to assure fairness and due process - inhibit inquiry into administration of the subject. If the Crown and its powers have acted upon Canadian politics and government in a determinative way - if, in short, Canadian politics owes much more than has previously been acknowledged to its monarchical roots because responsible government has transferred all but the reserve power of the Crown to the Crown's advisers - what has been their influence on justice and policing? The question is rather delicate, since to attribute a direct relationship might suggest that justice and policing are politicized in Canada. They are not politicized, if by that is meant that partisan influence infects their operation; but the arrangement of power to assist their conduct leaves governments open to this suspicion. The source of the problem, which is irremediable in a system whose fundamental norm posits that political responsibility for all actions of government must lie in the hands of some minister or ministers, is that the attorney general is the final arbiter of what constitutes the public interest. He or she, or more likely the attorney general's agents, exercises the discretion derived from the prerogative to lay charges and enforce the criminal law. The discretion used is, according to S.C. Silkin, a former attorney general in the United Kingdom, 'unreviewably, unappealable and unbypassable.'61 The implications of such unfettered discretion are substantial, not only for the regime of law but also for the political system. Charges laid or not laid, or the preferring of one charge over another, can in different contexts give rise to controversy. From a wealth of examples of controversial action involving the administration of justice might be cited the damning evidence of the Marshall inquiry, established to determine why Donald Marshall, a Micmac Indian, was convicted and served a twenty-year sentence for a murder he did not commit. The inquiry concluded that in Nova Scotia there is a two-tier system of justice, one where the conduct of officials in both the Royal Canadian Mounted Police and the Department of the Attorney General exemplified the attitude that 'status is important, and that one is not blind to influence in enforcing the law.'62 Although the facts of the Marshall case (just as the inquiry into the death in police custody of J.J. Harper in Manitoba or protests at the same time over the death of black youths as a result of police action in Montreal and Toronto) were local and provincial in origin, the impact of the event proved to be national.

106 The Invisible Crown It may be presumed that discretion that leads to a miscarriage of justice is infrequent, but, according to a former deputy minister of justice in New Brunswick, discretion nonetheless leads to a mosaic of law enforcement: The very basic differences from province to province are amazing/63 This is true despite the countervailing influence of a single criminal code, a single system of appellate jurisdiction, centrally appointed judges to the senior courts, and the dominance of the RCMP, who provide one-third of all public police in Canada. In the administration of law, then, the practice of de facto federalism has prevailed, although the nationalizing effect of the Charter both in the values it articulates and in the jurisprudence it promotes may signal renewed pressure towards greater uniformity. The story of one province's attorney general has been fully recounted by Paul Romney in Mr. Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature, 1791-1899. From the perspective of this chapter, the most valuable parts of this book are its depiction of the administration of justice in the pre-1840s as 'an emanation of royal grace7 which was, subsequent to the achievement of responsible government, transformed into a ministerial office, indeed into the ministerial office, for 'it became the practice for the leader of the government party in each section of the province to take the office of Attorney General for that section/ That overlay of the most political with the least political responsibility, which was a marriage of necessity if the executive was to control the legislature in an era of weak party discipline, continued throughout the nineteenth century. There were only six years between 1841 and 1899 when the leading politician in Upper Canada and Ontario was not the attorney general. Moreover, Romney underlines what is often forgotten about Oliver Mowat's long tenure as premier: 'It was as law adviser and chief legal draftsman to the political executive and legislature that Mowat plotted and executed his triumphal campaign [of provincial rights]/64 All of which is to say that the attorney general in Canada was, and still is, a more political individual than his counterpart in Great Britain. The administration of policing in Canada is unusual among federations. A national police force, the RCMP, provides policing in eight of the ten provinces and in the territories. In 1988 half of the RCMP's eighteen thousand members were designated as performing federal policing functions, the other half (in a ratio of approximately 2:1) provincial and municipal functions.65 Ontario and Quebec have provincial police forces whose structures (as regards their relationship to the political executive)

The Culture of Administration 107 parallel that of the RCMP. The commissioner of the RCMP is appointed by the governor-in-council on the recommendation of the prime minister; the commissioner of the Ontario Provincial Police and the director general of the Süreté du Quebec are appointed by the respective lieutenant-governors-in-council. Each commands his force under the supervision of a cabinet minister, which in the first two instances is the solicitor general of the respective jurisdiction and in Quebec the minister for public security.66 Political accountability for police administration is therefore shared between these officials and their ministerial colleague, the attorney general, who in his or her prosecutorial function completes the act begun by the police when they lay charges. Thus, even if the municipal police are ignored, the administration of policing at the highest level is complex. When to this is added another level of supervision in the form of watchdog agencies such as police commissions, which as in the case of the Ontario Police Commission (OPC) are also composed of order-in-council appointees, the potential for controversy grows. A case in point was the contentious amendment proposed to the Ontario Police Act in 1963, to empower the OPC to hold in camera hearings to take evidence in its investigation of organized crime. The details of that imbroglio are recounted elsewhere, but the province's attorney general, Fred Cass, ignited the controversy when he publicly described the amendment as dangerous, new, and terrible in an English common law country.67 Cass found himself in a position unique to his portfolio as chief law officer of the Crown: he opposed a bill he saw as subversive of traditional legal rights; yet he was bound to support the government responsible for the legislation. He resolved his personal dilemma by resigning from the ministry. In the wake of the public outcry over the terms of the bill, the government reached a compromise with the opposition parties and followed that by appointing a royal commission chaired by Ontario chief justice J.C. McRuer to investigate civil rights in the province. It may be disquieting to think of the police as an arm of the political administration, and examples of police specifically being employed for this purpose may be infrequent enough to ignore evidence that it happens. Yet the use of police to thwart union organizing activity (Mitch Hepburn's reinforcement of the OPP in 1937 to hinder CIO activity among auto workers at Oshawa, or Joey Smallwood's attempt to repulse the International Woodworkers of America in its organizing drive among Newfoundland loggers in 1959), is well documented.68 The RCMP's covert operations in the 1970s to monitor and check the growth

108 The Invisible Crown of the Parti Québécois, a legally constituted political party, have been extensively revealed. Even if this last initiative occurred without the knowledge of responsible ministers, the linkage between police administration and the political executive is not dissolved.69 The police remain by virtue of their structure an instrument of the political executive. If their political masters lose control, if the police begin to set their own priorities, which was one interpretation of the sequence of the events involving the Süreté du Quebec at Oka in 1990, then a different and serious problem rises. But it remains a problem for the political executive.70 Policing and the administration of justice are less common species than health care or public works, but they too are found in R.F.V. Heuston's 'secret garden of the Crown/ That is so even though in Canada they go largely unexamined, because their contribution to the country's political development seems so slight. Recent historical scholarship on the Mounted Police and the settlement of the prairies, or on the police and their contact with Native peoples, provides a newer perspective on the political (and social and economic) component of policing. Yet no Canadian academic would attribute to policing the pivotal place Alastair Davidson awards it in Australia, where 'it... became not only the first but the most important department of state in the colonies/71 With no convict settlements to guard, there was in Canada less need for a police bureaucracy or a judiciary to administer discipline. The impetus in Australia was to centralize; the command principle demanded obedience and encouraged not only the pre-eminence of the rule of law but of lawyers and legalism. Canada's perpetual search for accommodation elevated politics over law and made policing a nugatory part of public life. Police there were in Canada and at the highest level, but in Canadian fashion that fact tended to be ignored when academics and even politicians thought about the composition of government. It took a royal event, on occasion, to remind the first minister of the true extent of the national administration. In preparation for a farewell dinner given by the government in honour of Vincent Massey in 1959, a Rideau Hall staff member politely observed to John Diefenbaker that the preliminary guest list was overly restricted to men of parliamentary status or experience. It failed, the writer said, 'to include sufficient representation from the judiciary, the civil and military services, over whom the Governor General exercises jurisdiction as representative of the Crown.'72 Among the additional names suggested was the commissioner of the RCMP. In the administration of justice the discretionary power of the attorney general is extraordinary, both in its amplitude and in its capacity to

The Culture of Administration 109 affect the lives of citizens. But it is not qualitatively different from the discretion public servants exercise as a result of power delegated by Parliament to the executive. All administrators make choices when they plan, when they coordinate, and when they supervise, and this is the case whether the individual is at the top, somewhere along the bureaucratic hierarchy, or in a quasi-independent tribunal. Choices necessarily imply discretion. And in the absence of either a separate system of administrative law or an autonomous corps of administrators, choices in the Canadian governmental system are made by politicians and their servants. Federal and provincial legislatures in Canada, as elsewhere in the Commonwealth, have responded to the pressures for an activist state by delegating power to the executive, which has usually meant to the governor-in-council, the Crown. Executives wax and legislatures wane. The language of delegation is general, its supervision weak. Although statutory delegation far exceeds the prerogative as the chief source of the executive's power, there is no distinction made in the implementation of policy. The secluded garden may grow but the techniques used to tend it remain unchanged.

6

The Crown-in-Parliament

I suppose I am the only person in the Dominion whose faith in the wisdom and in the infallibility of Parliament is never shaken. Lord Dufferin, Halifax speech, 8 August 1873

It is in the nature of responsible government in a constitutional monarchy to depreciate the lingering influence of monarchy. This is not to say that the power of the Crown as a consequence contracts - in fact, it has expanded - but that the ambit for arbitrary action by the monarch is reduced to an absolute and, except in extraordinary circumstances, inconsequential minimum. At the same time it is in the interest.of responsible government that the powers of the Crown, exercisable only on the advice of the political executive, should remain indeterminant and unseizable; this way the Crown helps to protect the executive by distancing it from the electorate and thus making it less tractable to popular influence. Behind that ambiguity lies the secret garden of administration and the delicate relationship of first minister to Queen's representative. In Canada, where the governor general is a surrogate sovereign whose office has been Canadianized by successive governments for over forty years, the Crown is enveloped in a further smokescreen of abstractions to which the fictions of constitutional monarchy are only a partial contributor. Without the social base that sustains the British monarch - a court, an aristocracy and an established church - and without the continuity that hereditary succession guarantees - Canadian governors general and lieutenant-governors hold office for shorter periods than most

The Cro wn-in-Parliamen t 111 of the governments they counsel - the words and symbols of the Crown assume a lesser meaning, and its representatives experience difficulty reconciling both the public and, on occasion, themselves to their significance. It was the 'mystery of the workings of the constitutional monarchy and the parliamentary system based on the British model' which the Trudeau government sought to solve by 'describing] the reality of the Monarchy' in its Constitutional Amendment Bill (Bill C-60) in 1978 and to which Gordon Robertson, secretary to the cabinet for federalprovincial relations, told Jules Léger, 'pretty well all provinces [were] in varying degrees opposed.'1 That ill-fated measure was Mr Trudeau's answer to a question he continued to pose even after he left office: 'How do you put real content into a role that is more a facade than a reality?'2 In his mind, the bill took a major step towards reality by converting the constitutional authority of the governor general, which continues to flow from prerogative instruments (Letters Patent), into authority flowing from a constitutional statute. Jules Léger, governor general from 1974 to 1979, diagnosed the same ailment - public indifference to an office which unless reformed could in time lose all credibility - but prescribed a more homoeopathic remedy: give the governor general greater freedom 'to express his own personal ideas on relevant subjects, such as, for example, energy, ecology or the lot of native peoples'; allow him to consult more regularly with cabinet ministers thereby making him more familiar with the problems and objectives of governments; and name him 'the chairman of a new Senate.'3 While acknowledging the constitutional and practical problems his proposals presented, he argued that something had to change, and offered in evidence public boredom with the speech from the throne, which he contrasted unfavourably to Canadians' reaction to the US president's 'annual speech on the State of the Nation [sic]/ 'With that,' he said, 'they are impressed.' How accurate an appraisal this was of Canadian public opinion may be open to debate, although it is true that by the late 1970s Canadians were examining American political institutions more favourably than before because of the looser discipline they required and, in particular, because of the equality of representation guaranteed to the states in the US Senate.4 The important point to note is that although Lager's advocacy of constitutional change, itself a break from tradition, appeared posthumously and three years after he had ceased to be governor general, he had pursued this object with the prime minister while still resident at Rideau Hall. Nor were his reforming sights set on the few

112 The Invisible Crown changes just mentioned. In a memorandum of a conversation he had had in 1978 with Michael Pitfield, then clerk of the Privy Council, Léger expounded on his theme and indicated deeper reasons for reform than he allowed in his 'Reflection': J'ai dit que depuis que je suis ici, j'ai vu beaucoup de bois mort: au Senat que le Premier Ministre veut changer; ici méme ä Rideau Hall oú le programme n'est pas tout ä fait ä point; chez les Lieutenants-Gouverneurs qui ne sont pas toujours ä la hauteur; au Conseil Privé dans son ensemble que le Premier Ministre n'est pas prét a consulten J'ai ajouté que le résultat de ma pensée sur ees points est que l'appareil federal dans le pays n'est pas en bonne santé, et je crains qu'un jour un successeur de M. Trudeau pourrait saisir 1'occasion de la faiblesse de l'appareil pour le changer radicalement.5

Léger's successor, Ed Schreyer, also expressed unhappiness with the course of Canadian politics during his years as governor general (197984) but advocated no radical reform of the constitution. Instead, he inferred a more active use of the reserve power (or at any rate its threat) as an appropriate weapon to cajole obstinate governments, and he signalled a more interventionist role for the governor general to check obstructionist politicians. For example, he openly criticized opposition parties in Parliament and the Manitoba legislature who, in 1982 and 1983 respectively, blocked contentious legislation by absenting themselves from their chambers for prolonged periods. Unlike Leger, Schreyer expressed his views to the media and while still in office. Both men earned censure for their remarks. Duff Roblin, later leader of the government in the Senate, labelled Schreyer's references to the reserve power as disturbing, and Leger's reflections on the constitution curious and dangerous.6 In letters to the editor, Eugene Forsey attacked Schreyer both for the content of his remarks and for making them public. On the matter of using the reserve power to force an election on the government's constitutional proposals, Forsey disputed the implicit premise that the governor general could dissolve Parliament without prime ministerial advice to do so. As for chastising members of Parliament for their actions, Forsey noted that because he was a part of Parliament, the governor general was as bound by the convention of silence as were MPs, who could criticize the Crown's adviser but not its representative: Each House is debarred from even commenting on the proceedings and procedures of the other. So is the Governor General, and for the same reasons. For the

The Crown-in-Parliament 113 Governor General to suggest that a particular proceeding was mistaken, or wrong, or that the rules of the House should be changed to prevent or limit it, is therefore grossly improper, an unprecedented and flagrant violation of the rights and privileges of the House of Commons; the more so as the matter in question is one of acute partisan controversy.7

It is not the purpose of this discussion to evaluate the proposals made by either governor general. To do that would require a different perspective on the Crown than is adopted here: in other words, to look at it not as an organizing principle of government but as an office with a capacity to effect constitutional change. Current restrictions on access to information make the latter appraisal impossible. It should be said, however, that Schreyer in any event was not without defenders. Professor Edward McWhinney thought that he was 'right in the general principle that there still exists a "reserve" power to compel elections in crisis situations where there is no other way out of the impasse, but wrong in the application sought in the concrete case/8 Forsey later observed that in his book Canada and the Constitution McWhinney went some way further on the matter of the conventionally obsolete reserve power: 'He actually proposes that the Governor General should actually be able to refuse assent/ Whatever else might be said about this interpretation of the office, the prospect of an interventionist governor general, still more one whose actions might limit the autonomy of the political executive, would clearly be as unwelcome to all politicians as it would be unprecedented in the evolution of responsible government, which had begun a century and a half ago to check just such gubernatorial pretensions. The relevance here of Lager's and Schreyer's proposals is that they touched on the governor general's relationship both with Parliament Leger's in particular concerned the upper house - and with parliamentarians in government and in opposition. In other words, their discontent with the status quo, as it defined the role of governor general and, especially, as it affected their relationship with others, focused more than anything on Parliament. The explanation for this consensus is simple: it is only in association with Parliament that the governor general continues to have a function separate from ceremonial duties of office. Any rehabilitation must, therefore, begin here if the holder of the office is to do more than attend boy scout rallies, as Trudeau disparagingly phrased it. That was the intent of Bill C-60, which, along with christening the governor general 'the First Canadian/ would have substituted

114 The Invisible Crown him for the Queen as one of the three components of Parliament. Opposition in Parliament and from academics, as well as from the provinces for instance, Bill Davis, then premier of Ontario, favoured the status quo if that meant 'the place of the Monarchy and the Queen in the system [would] be left inviolate7 - contributed to the measure's defeat.9 As a result, section 17 of the Constitution Act, 1867, continues to state that 'there shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons/ Moreover, the subsequent constitutional reforms of 1982 made 'the office of the Queen, the Governor General and the Lieutenant Governor of a Province' subject to amendment only by the unanimous consent of Parliament and the legislative assemblies of each province. Refurbishment of the Crown where it seemed most susceptible and where, in the eyes of some authorities, it was most desirable, has been frustrated, perhaps indefinitely. Even critics of the Trudeau scheme might pause at this static result. No one disputes the principle of responsible government - that the Crown's extensive discretionary power should be subject to political advice - although some have criticized its implementation as leaving too great a monopoly of power in the hands of cabinet, and especially the prime minister. Yet the role of the Crown as national symbol, as the visible representative of the country, remains undefined, growing less distinct as the national outline becomes more disputed. It was this lacuna Bill C-60 sought to remedy. The Crown in Canada, in the form of surrogate sovereign, is increasingly attenuated, and no amount of travel or social activity, which since Lord Dufferin's time governors general have assumed as important duties of office, can fill the void.10 That reality unnervingly duplicates a prediction Baron Stockmar made to Prince Albert in 1854. If the British whigs, whom he described as republicans, had their way, the monarch, he said, would become 'a mandarin figure which has to nod its head in assent, or shake it in denial, as his Minister pleases.'11 In 1973 Bora Laskin, then chief justice of the Supreme Court of Canada and in consequence deputy governor general, described his experience after giving royal assent for the first time: 'I have now had practical experience of how responsible government works; I simply had to nod.'12 Royal assent is one demonstration of the phenomenon of the Crownin-Parliament, but there are other instances where the interests and responsibilities of the Crown intersect and affect Parliament's activities and, as a result, Canadian politics. Although some, like the dissolution of Parliament, have received substantial attention, others have been

The Crown-in-Parliament 115 overlooked. As with earlier portions of this book, it is well to begin with some history. There has never been in Canada the peculiarly personal relationship between Crown and Parliament which lies at the heart of British politics and which was symbolized until 1867 in the practice of Parliament's dissolving upon the death of the sovereign.13 Such interpenetration or, perhaps better still, unity of executive and legislature is summarized succinctly by the political scientist, Vernon Bogdanor, in his description of the British constitution: 'What the Queen in Parliament enacts is law/14 That simple equation never applied in Canada: before 1867 the legislatures of the British North American colonies were non-sovereign assemblies; afterwards, because of the division of powers accompanying federation, they were deprived of a monopoly of jursidiction. Germane to this last point is the argument of one Canadian legal scholar who says it is the 'central fallacy of Canadian constitutional law' to assume that, taken together, the Canadian Parliament and legislatures are 'replicas of the Parliament of the United Kingdom.' The latter is 'truly a continuously functioning constitutional convention/ while Canada's legislatures, he claims, even within their respective jurisdictions, do not 'enjoy a supremacy of the same quality.'15 The implications of this difference are best left for discussion in a subsequent chapter on federalism, although it is worthwhile here to emphasize that post-Confederation constraints reaffirmed pre-Confederation practice and that both discouraged the sense of mutual dependence between Crown and Parliament in the new world that had evolved over the centuries in the old. Representative assemblies in the colonies that later comprised Canada never experienced the supremacy the Parliament at Westminster enjoyed after the Glorious Revolution, because for most of their history the Crown (more precisely, the Crown's representative) remained independent of their control. Nor could responsible government, when achieved, be equated to the Act of Settlement, 1701, which subjected the monarch to Parliament. For the Crown in Canada had a Janus face - one imperial, the other domestic. With responsible government and a substantial degree of local self-government (which was not the same thing), the imperial Crown began to contract, but not before the relationship came under attack as governments pursued the autonomy offered by Dominion status. It was the domestic aspect of the Crown which was associated with the early Canadian legislatures, and this was never so thoroughly subjected to their will as was the monarch to Parliament at Westminster. In

116 The Invisible Crown the British North American colonies the transfer of power, signalled by the recognition of the principle of responsible government, was made to the leaders of the elected assemblies. If in England the Restoration occurred at the sufferance of Parliament (both peers and commoners), in Canada the Crown's future after the mid-1840s depended upon the will of the political executive who controlled the lower houses of the legislatures. That control deepened as the executive tightened its monopoly on advice to the Crown over matters whose primacy the theory of the constitution granted to the Crown-in-Parliament. For more than a century after the Glorious Revolution, Britain's mixed or balanced constitution worked so as to keep any one part from controlling the whole. In this arrangement of power, responsible government as it was understood in the Canadian colonies in the second quarter of the nineteenth century was 'the antithesis of responsibility/16 Colonial government had given priority to the governor, a preeminence the arrival of popularly elected assemblies did nothing initially to reverse. In Nova Scotia, British North America's first representative institutions faced an uphill battle with those already in power who believed 'the Governor's Commission and Instructions constituted the Alpha and Omega of the constitution.'17 The American Revolution rekindled faith in executive ascendancy and explained the institutional and procedural restraints that accompanied the Constitutional Act, 1791, which introduced representative assemblies to the new colonies of Upper and Lower Canada. The legacy of that initial experiment is incalculable, because 'it was the rules and practices of the Legislative Assemble of the United Province which the newly established Canadian House of Commons adopted in 1867. In turn, the procedures agreed to in 1841 by the United Province were an amalgam of the regulations and practices of Lower Canada and Upper Canada.'18 The key point to remember about this procedural pedigree is that through the royal instructions of 1792 'the executive [of each colony] very much influenced House procedures and that the Assembly was far from being master of its own proceedings.'19 Because the colonies were part of an empire, their legislatures laboured under a double dependency; they were subject to oversight by a governor who was himself responsible to the Colonial Office in London. To take the last restriction first; the royal instructions established categories of bills upon which 'royal assent was to be reserved or disallowed,' as, for instance, the reservation of bills dealing with the naturalization of aliens. Only with the governor general's instructions of 1878

The Crown-in-Parliament

117

did specific classes of subjects disappear, although the reserve powers of the Constitution Act, 1867, remain today in section 57; the practice of issuing instructions to governors general ceased altogether after the appearance of new Letters Patent in 1947. Similarly, the requirement that the governor sign each act of the legislature before transmitting it to London continues into the present as a mere formality, although one not to be confused with the ceremony of royal assent, which is the 'act of enactment' that takes place in the Senate chamber before representatives of both Houses.20 It is this latter public act that is both 'legally and constitutionally necessary/21 There is, understandably, little interest now in such vestiges of colonial antiquity, nor should there be, except in so far as they provide evidence about the dependent nature of Canada's original legislatures. And that dependency was even more vividly driven home by the failure of the Constitutional Act, 1791, to guarantee the independence of the lower house. The history of placemen in the politics of late eighteenth-century England is well documented; in his magisterial study, The Structure of Politics at the Accession of George III, Namier records that 234 of 489 English members of Parliament in 1761 had been returned by patrons, or held government offices or sinecures.22 The exclusion of office-holders from Parliament progressed through the remaining decades of that century and led to the separation of administration from politics in Great Britain. It was not until 1843, however, that a general prohibition on judicial and official functionaries sitting as members of the Canadian assembly was adopted, an act of major significance for a small chamber of eighty-four persons. The same measure reiterated provisions passed in the Cañadas less than a decade before which required members who accepted offices of profit under the Crown to resign their seats and seek re-election. Thus from the mid-1830s members of the executive council (that is, ministers) had to seek reconfirmation from their electorates. That requirement continued for one hundred years in Dominion and provincial politics and became towards the end of its history a crucial factor in the constitutional crisis of 1926; rather than have his ministers resign their seats and seek re-election, Arthur Meighen had them appointed as acting ministers whose commissions carried no salary.23 Once considered a fundamental guarantee to the independence of Parliament, the provision was abolished throughout Canada by the early 1930s because the requisite by-elections proved inconvenient to governments as well as a wasteful expense since they often went uncontested. Yet ministerial by-elections acted as a brake on the size of cabinet,

118 The Invisible Crown for they imposed a restraint on prime ministers whose prerogative it is to nominate ministers. James G. Gardiner, a former premier and later federal cabinet minster, who had personal knowledge of the inconveniences and uncertainties associated with by-elections, opined in 1938 that 'no other action taken since responsible government was set up has placed greater power in the hands of a single individual than this has placed with the Premier or Prime Minister/24 The potential chastening effect of the old requirement was given an approximate modern demonstration in 1975, when Pierre Trudeau nominated Pierre Juneau, then chairman of the Canadian Radio-Television and Telecommunications Commission, and without a seat, as minister of communications. Sworn to the Privy Council on 29 August, Juneau was defeated in a by-election six weeks later. In a postscript to this fleeting ministerial career, Esmond Butler, the governor general's secretary, sounded a warning to the governor general that the independence of the Crown and not Parliament might be more at risk: On Friday, September 26th, we were asked if the Swearing-in ceremony could take place that afternoon. I was informed that the Prime Minister wished to hold a Press conference in the Ballroom after the official photograph had been taken ... not ... a full Press conference, but ... a brief statement and [to] answer questions ... Following the photograph ... the Prime Minister had a forty-five minute Press conference and covered a wide range of subjects, including economic policy and plans. You are aware that I think a question of principle is involved here. I have stated my view that Rideau Hall should be neutral ground and should not become involved in partisan politcs ... The Governor General can only have the trust and respect of all political parties if he gives essentially the same privileges to all. It would, of course, be unthinkable to suggest that the Leader of the Opposition be given an opportunity to hold a Press conference at Government House.25

There were two chambers in each of the pre-Confederation legislatures, as there are two in the Canadian Parliament (the only province created after 1867 to be given a second chamber was Manitoba, who in 1876 abolished it in a uniquely entitled statute: 'An Act to diminish the expenses of the Legislature of the Province of Manitoba in certain aspects'),26 and it was in the upper house that the Crown's influence was most directly and continuously exercised. Except for the period from 1855 to 1867, when the elective principle was progressively applied to

The Crown-in-Parliament 119 replace councillors in the United Province, all positions were subject to appointment by the governor who, after the grant of responsible government, acted on the advice of his ministers. The implications of appointment were far-reaching: in Lower Canada the Legislative Council became the stronghold of anglophone and Protestant opinion and, by extension, the rival of the French-Canadian majority who dominated the lower house for most of the colony's history; in Upper Canada the Legislative Council, populated by official opinion as well as functionaries, thwarted the democratic impulse emerging from the Assembly. Like the senators appointed during the first hundred years after Confederation, legislative councillors were appointed for life. To these ingredients of rigidity may be added another unusual legislative feature: Speakers of the Council were appointed by the Crown. This practice was carried over to the Senate but not without opposition from Confederation's critics, who used it as evidence that 'all [was] strength and power' in the new scheme.27 Appointment undermines the office's authority in time of controversy, as demonstrated in the tumultuous Senate debate in 1990 over the Goods and Services Tax, during which Speaker Charbonneau was labelled an instrument of the prime minister and of the government leader in the Senate, as well as a perpetrator of 'an act of tyranny' in his interpretation of the chamber's rules.28 The influence of the appointment power over the affairs of the lower house waned but not over the upper chamber. Before the achievement of responsible government, governors packed the legislative councils in order to control the assemblies; after responsible government (and before the number of seats was fixed), they 'swamp[ed] the upper house with new members favouring the majority in the assembly.'29 After Confederation the upper house once again became appointed on the grounds, said Macdonald, that such a mode of selection would be more faithful to 'an image and transcript of the British Constitution,' and in conformity to the argument, put forward at the London Conference by W.P. Howland of Canada, that 'if you have a Federal Parliament, you must not give power to the Crown to increase the number of the Legislative Council.'30 In fact, section 26 of the Constitution Act, 1867, currently provides for the appointment by the Queen 'on the Recommendation of the Governor General' of up to eight additional senators 'representing equally the Four Divisions of Canada/ Although the Mackenzie government recommended use of this section in 1873, the British government refused to so advise the Queen since, in its opinion, no 'actual collision of opinion between the two [Canadian] Houses' existed.31 It remained

120 The Invisible Crown for the Mulroney government in 1990 to initiate the first successful use of the power. The resulting eight new senators, appointed to see the GST safely through an otherwise uncertain house, were labelled, among other epithets, recipients of 'the Prime Minister's shilling/32 Although challenged on several fronts by different groups, section 26, which the media regularly described as little known, was found by the courts to be constitutional. Significantly, for the present discussion, the provision was held not to be 'obsolete/ A statutory power (unlike a prerogative power), the court said, cannot become obsolete through disuse. The mystery was that in twenty years of constitutional reform debate, no one had ever proposed transferring the power of appointment from the Queen to the governor general. The structuring influence of the Crown on colonial legislatures was manifested in less direct but no less telling ways in conjunction with other factors. For instance, in his study of pre-Confederation parliamentary experience, O'Brien notes the impetus to 'simple decision-making mechanisms' which frontier conditions in Upper Canada encouraged.33 Crown prerogative offered an alternative to detailed legislation, and one theme evident in this initial period of representative government was the gradual imposition of limits on the use of discretionary power. Here, nonetheless, was an early indication of how environment prompted Canadian practice to deviate from English precedent with its focus on technical detail in legislation. Here, too, is one piece of historical evidence to support the claim that 'Canadians have always been quite careless about delegated power,' a conclusion any reading of reports of parliamentary committees on regulations and statutory instruments would substantiate.34 Similarly, the allocation of unalienated land and resources to the Crown gave the executive a vested interest in the business of governing from the earliest days to the present. It is not a very great distortion to say that the breadth of discretionary power to regulate oil and gas exploration and development in the so-called Canada Lands, embodied in the Trudeau government's National Energy Policy, carried late eighteenth-century principles into late twentieth-century practice.35 Only when the revenue crown lands produced became subject to Assembly control (section 54 of the Act of Union, 1840), and when a fixed supply procedure was established, was the governor's independence checked. Yet the Assembly's triumph proved illusory, if that was taken to mean an abatement of 'executive centred "colonial" type ... government/36 What took its place was a political executive who now advised the Crown's representative.

The Crown-in-Parliament 121 In Lower Canada the signal environmental factors were language and religion rather than the economy. Bicameralism offered institutional expression to bicommunalism and promoted a confrontation between the two legislative houses which was, because of the composition of the upper house, in reality a confrontation between the Crown and the Assembly. Deviation from British forms proved to be less a matter of procedure than of the Assembly's desire to assert paramountcy over its own affairs. This took the highest symbolic form when the chamber in 1828-9 successfully repulsed the governor's earlier rejection of LouisJoseph Papineau for its choice as Speaker. Section 33 of the Union Act subsequently acknowledged that victory by requiring the Assembly to elect a Speaker who would preside at all subsequent meetings. Sections 44 to 47 of the Constitution Act, 1867, reiterate those statutory guarantees whose import is to constrain the theoretical power of the Crown to interfere in the proceedings of the lower house. Canada did not become a democracy by act of Parliament, nor, as constitutional theorist Geoffrey Marshall has observed, does the Constitution Act, 1867 'enact detailed provisions for responsible government.'37 That fulcrum of modern politics also originated from a series of royal instructions communicated to governors between 1839 and 1847. Enjoined first to maintain harmony between the legislature and the executive, governors were later directed 'to act generally upon the advice of [the] executive council, and to receive as members of that body those persons who ... possess[ed] the confidence of the assembly.'38 It was Lord Elgin, governor general of the United Province of Canada from 1847 to 1854, and recipient of this last instruction, who set Canada upon the road to parliamentary constitutionalism - a route already charted by another governor general, Lord Durham, in his famous report. Whatever the future holds for the office of the Queen's representative, its association with this central practice of constitutional government guarantees it major prominence in any political history of Canada. The Department of Justice publication, A Consolidation of the Constitution Acts 1867 to 1982, released in 1986, necessarily omits reference to the events and achievements discussed in the previous paragraphs; for the principle of constitutional monarchy, which unites the Crown with parliamentary government, rests essentially on convention and not on the official wording of the acts. The adverb is necessary because sections of the act do codify some practices that remain unlegislated in Great Britain. The election of Speaker of the Canadian House of Commons (section 44) is one example, but another, equally fundamental to the

122 The Invisible Crown operation of responsible government, is the requirement that any expenditure of public monies must be recommended by the Crown (section 54). Both sections are the result of the interpenetration of the Crown and Parliament. The former checks the Crown prerogative (still exercised in Britain where the monarch approves the Commons' choice of Speaker) and thus emphasizes Parliament's independence; the latter affirms the prerogative and, in the words of Lord Durham's report, assures 'the real protection of the people.'39 Durham believed that good government was not attainable unless there was central control over expenditure, and no adviser to the Crown since 1839 has dissented from that judgment. The executive's monopoly on spending is a cardinal feature of responsible government, and one with extensive ramifications: it denies to the legislative branch a policymaking function and, as a consequence, assigns to a member of Parliament a very different role from that played, for instance, by a member of the United States Congress. The job of the Canadian members of Parliament is 'to monitor, evaluate, judge and decide on the proposals, policies and actions of "the Government" on behalf of the people they represent.'40 In short, they are not legislators. Strong party discipline in Canada but not in the United States is one explanation frequently offered for the greater attention paid in Ottawa than in Washington to national rather than to local interests (a contrast that feeds demands in Canada for reform of the Senate to make it a body more reflective of territorial concerns). Another explanation, however, is the Crown's control of finance which, until moderated, is destined to frustrate any reform to the existing features of either house of Parliament. That judgment appears to be borne out in a recent evaluation of extensive reforms to Commons practices introduced in the mid-1980s. According to Robert Marleau, clerk of the House of Commons, more is still required: A very simple change ... could be effective in returning some interest to the estimates, particularly that of members. It requires no constitutional change and no change in the Standing Orders at all. It requires what we know as the royal recommendation; that is, the Governor General allowing members of Parliament to reallocate those resources. On tabling of the estimates, the President of the Treasury Board could simply say that accompanying these sets of estimates is a royal recommendation allowing the House of Commons to reallocate within an envelope half a percent or one percent of the funds. I think you would find members' interest in finding a mechanism or the moneys to assist the departments in their priorities would be entirely different.41

The Crown-in-Parliament 123 After 1850 the governor general retreated as an active agent of government. His visible roles - opening and proroguing Parliament, assenting to legislation - continued but their performance belied the political significance of the office. Then, and even more so a century later, the acts remained important but their referent grew less clear. In an intriguing article on the imperial constitution, an American scholar, Barbara A. Black, has written that 'in their distribution of governmental power, the British have institutionalized the separation of the de facto from the de jure, and virtually enshrined that which the rest of us feel as an embarrassment - the unacceptable rule/42 The charm of the system, she admits, is that omnipotent power is forever (or at least normally) restrained. Omnipotent was never the right word for Canadian legislatures, before or after 1867, but once responsible government arrived the de facto-de jure distinction widened, here as in Britain. Indeed, the constitutional arrangement became doubly unacceptable once the concept of the divisible Crown took hold. Then the sovereign became distant in fact as well as in law. Governments in Ottawa responded by Canadianizing the Crown. In his first throne speech, Vincent Massey described himself as the sovereign's personal representative, an interpretation of office he used on subsequent occasions and one Georges Vanier elaborated upon at his installation in 1959: The Queen has established with Canadians a bond personal rather than formal.'43 There is truth in the picture these descriptions paint, but it is also the case that this depiction differs in an important respect from that offered by the secretary to governors general Tweedsmuir and Athlone as recently as 1945: 'It is often said that the Governor General is the personal representative of the King. It would be more correct to say that he is the official representative of the Crown, for there is a difference between representing a person and representing an Office held by a person/44 Although in themselves these revised descriptions of the lineaments of office may suggest little, it will be argued that their cumulative effect is that of a political disinheritance. In conjunction with the complete delegation of prerogative powers by the Letters Patent of 1947, with changes to the Royal Style and Titles Act of 1952, and with the appointment of Canadian governors general, the Crown ceased to appropriate its British heritage. No longer did it embody the presence of the past (or at least that particular past). Instead the installation speeches of the 1960s and after refer to 'the stability and continuity of national and institutions' (Michener, Léger, and Schreyer), to Canada's 'national character [that] is beginning to take shape'

124 The Invisible Crown (Sauvé), to the 'sense of community' of which the governor general is the source (Hnatyshyn), and to increasingly expansive themes of national unity, racial tolerance, and environmental renewal.45 On the eve of the royal visit in 1939, Shuldham Redfern wrote that 'the removal of the Crown would precipitate a danger ... and the country might easily split up into the various divergent elements which at present are held together in a common allegiance/46 That has not happened, nor has the Crown been removed - only reconstituted. But governors general (and their governments) have grown sensitive to potential disruption, an awareness fed in the 1970s by the victory of the Parti Québécois, and by what is popularly called western alienation. In response they have sought to recast their role in the most obvious public forum available Parliament. To emphasize the importance of his office, Jules Léger, for instance, desired a hand in composing the throne speech, a goal neither he nor his successors achieved. Unhappily a stroke in 1974 curtailed Lager's ability to speak at length and a different kind of precedent was set when Madame Léger read the speech in 1976 and 1978 (in 1975 the chief justice had carried out the task). The innovation of the spouse of the Queen's representative assuming his role originated with Léger himself and underlined his personal occupancy of the office, although Eugene Forsey, for one, questioned the logic of the decision: 'In my judgement, it should have been read by the Speaker of the Senate, the nearest thing we have to a Lord Chancellor/47 Léger's ambition to increase the visibility of his office extended to the other end of the legislative process as well; on occasion he gave royal assent in person to legislation. Normally, the governor general enters Parliament only to open, prorogue, and dissolve it; the British monarch last gave royal assent personally in 1854, although to oblige his Canadian advisers George VI reluctantly agreed to deviate from British practice and assent to several bills when he visited the Canadian Parliament in 1939.48 The practice of the governor general's deputy (who is a senior justice of the Supreme Court) giving assent in a public ceremony is unique to Canada. The physical absence of the governor general, however, is not unique, because the task is time-consuming and because, in the eyes of some, it did not 'accord with the dignity which ought to be accorded to the Crown when only a few members turned out [for the ceremony]/49 That last objection underlines another consideration. Since 'the decision to initiate the assent proceedings [rests] in the hands of the government leader in the House of Commons,' any heightening in the formality of

The Crown-in-Parliament 125 the occasion would in effect limit government discretion, requiring for instance the presence of the prime minister, a consequence governments invariably resist.50 (For the record, assent procedures vary across the country. In none of the provinces does federal practice prevail, if only because in none is there a second chamber. In some - Quebec, invariably, since 1983; Ontario and some others, periodically - assent is given in the lieutenant-governor's chambers before representatives of the parties in the legislature.51 Leger was not the first of the 'Canadian' governors general to grant assent personally, Vanier did in 1960 and Michener in 1973, but the sense that these initiatives constituted a break with tradition remained strong. Léger appeared twice, in 1974 and 1976, before his health curtailed his activities; then and on earlier occasions Esmond Butler diplomatically cautioned the governor general to notify the prime minister of his intent and of the need to arrange with Senate officers a suitable ceremony for the occasion.52 Whatever their regenerative merits as seen from Rideau Hall, these innovations depended for their success upon refashioning the Crown's relations to Parliament, and for that reason they were predestined to have less than their intended effect. There is a contradiction in the relationship: on the one hand the written constitution describes the Queen as one element of the trinity that comprises Parliament, but on the other hand her representative, by convention, is the silent partner. In Britain the rhetoric and reality of monarchy are less far apart than they are in Canada - the Crown exists simply by being there. But governors general have no preternatural base, nor any longer a derivative one. The government having chosen to assert an indigenous legitimacy for the Crown, the governors general have no purpose without purposiveness; they must do something - Massey and culture, Vanier and the family, Michener and youth. The principal condition to hold office - a presumption of political neutrality - guarantees nothing less, or more. In his introduction to Jules Leger's selected essays, Jacques Monet states that 'since General Vanier's day, Prime Ministers have wanted to seek [the] counsel [of governors general] more frequently than ever before.' He records that 'until 1963, Prime Ministers seldom went... [to] Rideau Hall/ Between 1955 and 1963, the average was about five times a year (although not once in 1960), but after 1963, the number of visits rises 'to an average of eighteen to twenty a year, an average which represents, in fact, a meeting every ten days [s/c].'53 More than that, the meetings were important for the governor general as well. According to Léger, they were 'the richest and most rewarding practice/ and for his

126 The Invisible Crown secretary they constituted an invaluable portent 'of the Government's posture, directions and expectations/ The topics/ according to Léger, 'were set in advance by my private secretary and the Secretary of the Privy Council/ But that arrangement, according to Butler, was flawed: 'So far as I can remember, neither Gordon Robertson nor Michael Pitfield have ever informed us of the Prime Minister's agenda/ The cabinet documents forwarded to Léger proved an unsatisfactory alternative source of information since they were too voluminous to be of practical use, although a decade earlier it had been arranged by Esmond Butler that 'not too voluminous [documents that] can be read within 1/2 to 3/4 of an hour' would go to the governor general.54 Arguably, like the members of Parliament who reacted to Trudeau's description of them as nobodies by seeking to do something and become somebodies, the governor general, too, looked for constructive work, and for the same reason. Yet at the very time MPs institutionalized their constituency services and expanded their committee responsibilities, public esteem in them declined. As already demonstrated, public support for the Crown has fallen too, despite initiatives at rehabilitation. There is no agreement on how to reverse the fortunes of parliamentarians or of the Crown, although there is a consensus that they share a common problem: subjection to a political executive empowered by the prerogatives of constitutional monarchy. The mortar of party discipline in a system bereft of political ideology depends in significant part upon patronage in the form of appointments (in and out of Parliament) and upon government spending; both ingredients derive their potency from the political executive's monopoly of the Crown's discretionary power. The Crown is subject to comparable though usually less overt political influence. In his study of the institution in Canada, Frank MacKinnon states that good governors, such as the 'saintly' Georges Vanier, can check precipitate advisers by the force of their character.55 But to be successful, moral suasion depends upon a conjunction of personalities that share a common pulse, a common set of priorities. There is evidence that mutual harmony, to use the word favoured by those who instituted responsible government, does not invariably prevail between Crown and its advisers. Robert Sheppard and Michael Valpy recount an extreme example of its absence, when Trudeau 'ostentatiously' walked out of a first ministers' dinner given by the governor general, Ed Schreyer, at the opening of the aborted constitutional discussions in September I960.56 Public disdain of this order is rarely demonstrated; more

The Crown-in-Parliament 127 common, indeed almost predictable, is the failure of politicians generally to acknowledge the constitutional pre-eminence of the Crown's representative. To these slights the governor general has no recourse or defence, unless it be his own staff and, in particular, his secretary. References in the preceding pages to Shuldham Redfern and Esmond Butler provide some indication of the secretary's indispensable function in any account of the Crown in Canada. Redfern's description of him as 'the Governor General's confidential adviser on all matters of policy/ though in no sense a rival to the governor general's political advisers, suggests his importance. Rather, he said, he is 'the interpreter of [ministerial] advice, and the director of the means of carrying it out.' Moreover, it was his duty 'to keep the King's Private Secretary informally but reasonably well informed of events in Canada.'57 This last responsibility explains Redfern's frequent and long memoranda on Canadian events as seen from Rideau Hall. Butler was appointed at the time Vanier assumed office, and Vanier's letter to Diefenbaker recommending the appointment is a precis of the qualities a secretary should possess: academic distinction, knowledge of the military services (the governor general is commander-in-chief, though Michener, the last of the line to wear a uniform, admitted he 'never fully understood the ... purpose of the role'), fluency in English and French, regional background (that Butler's home province was Manitoba pleased Vanier, who was 'anxious to have some of the staff from the West') and, finally, familiarity with Buckingham Palace (Butler had earlier assisted the Palace press secretary and was, said Vanier on information from the Queen's private secretary, 'persona grata with the Queen').58 Butler served four governors general over a period of twenty-five years, and while most of his own papers are closed to researchers, it is clear from those that are open as well as from the Records of the Governor General that he possessed an intimate knowledge of Canadian government operations and maintained close contact with officials at the senior level of government. It is also evident that he was the confidant of the governors general he served: on the theme of this chapter, the Crown-in-Parliament, it is worth recording that in 1974 Butler watched the defeat of the Trudeau government in the House of Commons from the governor general's gallery and reported to Léger the course of events in advance of the prime minister's visit later that day. But in addition to being his eyes and ears, Butler served as protector and defender of the governor general's neutrality. Canadianization of the office involved more than the appointment of Canadians or the transfer

128 The Invisible Crown of the sovereign's remaining prerogative powers. It required, in Butler's words, the need 'to rationalize the operation and staffing of Government House' once the British had departed. That was a complicated undertaking involving allowances and personnel, and a balancing of responsibilities between the governor general's office and the government. Throughout Butler 'worried about the implications of the Government taking over responsibility,' since 'I feel it is essential that each Governor General should be able to interpret his role as he sees fit and to carry out his mandate without more than necessary financial control.' It is surely important, he told Vanier, 'that we should not give up independence without positive and enduring reasons for doing so.' It ought to be noted that on the particular matter which gave rise to this warning - the transfer of some junior Rideau Hall staff to the government payroll - the governor general did not share his secretary's concern: T don't think there is any possibility of the Governor-General relinquishing his independence in any way if the second chauffeur, footmen, etc are paid by the Government.'59 The details of the governor general's establishment are mentioned here only to emphasize that of all the individuals associated with the functioning of the Crown in Canada, it is the governor general's secretaries who as a result of long tenure have evinced the most concern for the office's vulnerability to political influence. Butler told Léger that he 'sharefd] his concern that the Governor General is not asked to participate in certain events of country-wide significance - July 1st celebration being a glaring example.' He resisted suggestions from unspecified quarters that the swearing in of the Clark government in 1979 be held on Parliament Hill; it could be moved outside the traditional location of the governor general's study perhaps, but it should remain 'at R.H. [thus] maintaining the neutrality of the Crown [and the] responsibility of the G.G. to assure continuity of government.' Likewise, at Rideau Hall he guarded the governor general's few remaining prerogatives. On the arrangements for the change of government in 1979, he corrected an internal Rideau Hall document which read 'le Premier ministre ... lui recommendera de nommer M. Clark, premier ministre,' with the observation that 'this step by no means necessary. The Governor General is perfson] to choose whom he wishes to form a government.' He did not correct, however, the handwritten record he made of a remarkable telephone conversation with Pierre Trudeau the day following the 1979 election, during which the prime minister took solace from an honourable defeat, indicated he had no intention of resigning as Liberal leader, and

The Crown-in-Parliament 129 said it was his 'duty to recommend to GG [to] ask Mr. Clark to form Gov't/60 The governor general needs a protector and a confidant, for the office is isolated and exposed. The Canadian practice of gubernatorial appointments by the sovereign on the nomination of the prime minister and in the absence of consultation with the leader of the opposition is not calculated to instil confidence in the independence of the person chosen. For example, in 1959 it was Pearson's recollection 'that he was consulted, but he cannot remember whether it was before or after the selection' (it was after).61 And yet, like justice, neutrality in the governor general must not only exist but be seen to exist. Compounding the problem that emanates from the mode of selection is the imprecision of the rules that determine how, once chosen, a governor general should act. While the Constitution Act is precise on the powers that adhere to the Crown, it is silent on how those powers should be exercised. Still, it is constitutional practice rather than law that is the basis of constitutional monarchy and parliamentary government, and where, in Black's terminology, de jure and de facto arrangements of power diverge, there is ample potential for misunderstanding, conflict, and crisis. How real a potential was demonstrated in Australia, when the governor general, Sir John Kerr, dismissed the government led by Gough Whitlam because, in the words of the then chief justice of Australia, Sir Garfield Barwick: The Crown has an obligation not to retain Ministers who cannot produce supply/62 In that instance, Whitlam faced a defiant Senate, whose actions can be understood, in part at least, only in the context of a tradition of constitutionally autonomous upper houses that predates the formation of the Commonwealth of Australia. Of course there were other factors, such as a change in the electoral system of the Senate in 1948 which led to a progressive loosening of government party control of the Chamber, and personal rivalry among the key figures of the dispute.63 In other words, the ingredients of the crisis were distinctively Australian. But its relevance to the discussion of Crown and Parliament in Canada is that the powers used by both Australia's governor general and its Senate were 'expressly stated in the commonwealth Constitution.' There may be different views in Canada about what this country's Senate may or may not do (There is no tradition in the Senate,' said one veteran of that house in 1990, 'for interference with the government's agenda in the area of money bills'), but there is every similarity between the two parliamentary monarchies in regard to the potential for dispute over the allocation of constitutional power and its exercise.64

130 The Invisible Crown Moreover, the potential for dispute over the right relationship of Crown to Parliament seems impervious to resolution. Like scripture, there are more than enough precedents to argue any position; however, unlike biblical passages, precedents continue to accumulate. Thus what once seemed certain may be thrown in doubt. By way of example, if there is one topic touching the Crown and Parliament that has commanded academic attention, it is the subject Canadians call minority government. Here the received wisdom of Forsey and Mallory, Dawson and Ward is that following an election where no party holds a majority of seats, that party which commands the support of the House will form the government. Yet in 1984 Professor Edward McWhinney advanced a significantly different interpretation: The Canadian practice in modern times, as developed and applied in the six minority government situations of 1957, 1962, 1963, 1965, 1972 and 1979, has been to accord the mandate to form a government to the largest party in the House, and to leave it to the House itself to make any necessary political correction by subsequent parliamentary vote.65

This suggests that it would be unconstitutional for a prime minister in the position of Mackenzie King following the 1925 election (when the Liberals held 101 seats, the Conservatives 116, and the Progressives and others twenty-eight) to carry on until the House met 'or worse, that it would be constitutional for the G.G. to dismiss the P. M. in those circumstances/66 Thirty-two years later, facing similar returns, the St Laurent government did resign immediately, not because it had to, but because the prime minister thought he should, and then only over the strenuous objection of Jimmy Gardiner, who fiercely maintained the government should face Parliament, as his had faced the Saskatchewan legislature in a similar situation in 1929.67 Although Lord Byng thought it not dignified for King to stay (the Liberals had lost seventeen seats and the Conservatives won sixty-seven), he told his prime minister 'there was no constitutional reasons against his continuing in office/68 Before the reform of representative government in Britain in the late eighteenth century and in British North America in the early nineteenth century, the Crown used its prerogatives to make Parliament. In the wake of reform, the way was open for party to assume that dominant role. Then, and in the normal course of events, the Crown's participation was reduced to one of ritual and its 'language [to] that of ceremony/69 Only in extraordinary situations, when there is no set of indisputable

The Crown-in-Parliament 131 advisers, are its reserve but de jure powers mobilized. On these rare occasions it may well receive divergent advice because the stakes are high for all parties. It is no wonder that those in power, however tentative their hold may be, depreciate the Crown's room for autonomous action. Although the reserve powers are few and the opportunities for a governor general to exercise them slight, the prerogative powers of the Crown are substantial and are invoked often. Nowhere in the political system is this so true as in its relations with Parliament. The triumph of partyism in Canadian and British politics owes an inordinate debt to the earlier victory of responsible government. The sapping of Parliament's independence, which is the collective result of the subordination of the individual member to the party whips, is primarily due to the political colonization of the Crown's powers. The prime ministerial prerogative to seek dissolution of the House is a blunt weapon governments possess to discipline disloyal members, but it nonetheless emphasizes the truth that 'the life of any Government [is] indissolubly associated with the life of the Parliament/70 Buckner has written that under the old representative system, the only means a governor had 'of "punishing the Assembly" for noncooperation was through pr[o]rogation or dissolution.'71 To say that today those weapons lie in the hands of the prime minister (or premier) who advises the Crown's representative is not to diminish or dispute Forsey's contention about the Crown's reserve power. Rather it is to turn the argument around and contend that those powers, which are extraordinary in themselves, rest in the hands of the political executive normally. Not just the power to prorogue and dissolve the legislature but to summon it as well; to determine the course of legislation by choosing when assent will be given and when the provisions of an act will commence;72 to control all finance measures through the requirement that they be recommended by the Crown (and when the legislature is not sitting, to recommend the issue of special warrants); through delegated or subordinate legislation to usurp the function of the legislature; through the appointment power to prescribe the composition and, thereby, to influence if not control the administration of the senior public service and regulatory agencies; and finally, through appointment to select all senators as well as the Speaker of that chamber, and government leader in the Senate and, in the House of Commons, the government leader and the Committee of Internal Economy. These are profuse powers to which first ministers lay claim in a consti-

132 The Invisible Crown tutional monarchy. The list is spare and its parts could be amplified but, even so, it illuminates some of the cardinal features of the Canadian political system. It also distinguishes Canada from its republican neighbour and seriously questions the accuracy of the claim that the office of Canadian prime minister is becoming presidentialized. The specific prerogatives long possessed by first ministers are reinforced by other features of politics that derive from the presence of the Crown. The first is timing. There is no constitutional calendar, aside from the five-year life of legislatures, to constrain a government leader; he or she is free to act or not to act according to his or her own judgment. Secondly, there is no popular constraint either; as the Judicial Committee of the Privy Council ruled long ago in the initiative and referendum case, the people are unable to enforce a statute against the Crown's will. Thirdly, as critics of Canada's political system have tirelessly complained, there is no constraint that arises as a result of Canada's being a federal system. In an era of massive federal-provincial programs in multiple fields of jurisdiction, it is no longer accurate to speak of Canadian federalism as a series of watertight compartments. But each government at both levels of the federation is structurally autonomous: there are no simultaneous elections and there is no institutional interpenetration. The Canadian federal system is vertical, not horizontal - and it is totally so beginning with the Crown. Canada is a compound monarchy whose plural Crowns reinforce their executives to the detriment of their legislatures. A caveat to these assertions is the Charter of Rights and Freedoms whose provisions do, for the first time, limit the independence of all governments. The effect of the Charter on Canadian politics has been direct, rapid, and profound in its challenge to the former supremacy of the political executive. It needs to be said that its longterm significance is not yet clear, although in the realm of citizen values it has created something that did not exist before - a higher law. Its impact on the Crown will be evaluated in the chapter on the judiciary. One provision of the Charter, section 33, the notwithstanding clause, constitutes a legislative override; it enables Parliament or a legislature to declare that an act 'shall operate notwithstanding a provision included in section 2 or sections 7-15 of the Charter.' The override section has been described as 'the uniquely Canadian contribution to the theory of constitutionalism.'73 It may be that, but it is also a return to the dominant political executive under which all legislatures function; and in this respect the Charter is at best a qualified restraint on the Crown's power. In this system of concentrated power, there is little scope for indepen-

The Crown-in-Parliament 133 dence on the part of legislators and even less on the part of the governor general. In the eyes of the political executive the roles of both are stylized, and reforms that would depart from convention, in every sense of the term, are unwelcome. Certainly reforms that would make the Crown-in-Parliament a political fact rather than a constitutional theory would lie, in Roblin's phrase, 'quite outside our traditions of constitutional Monarchy/74

7

Law, Judiciary, and the Crown

It seemed unbelievable that the executive should be forbidden to carry on the practice of legislation by regulation - the most conspicuous legal activity of modern government... Legal symmetry gave way to common sense. Sir Owen Dixon, The Law and the Constitution'

Previous chapters have demonstrated that in Canadian politics the Crown-in-Parliament, like Copernicus's sun, lies at the heart of a system. Over time the processes of modern parliamentary politics have worked to amass its power through such practices as intensified party discipline and increased use of legislative delegation. Until the adoption of the Canadian Charter of Rights and Freedoms in 1982, no higher law restrained this development, for within its sphere of jurisdiction the Crown-in-Parliament was sovereign. Nor was it the function of the courts to check the accretion of power that resulted. In fact, it will be argued below, the courts contributed to it and in so doing exerted a determinative influence on the modern Crown in Canada. The relationship between the Crown and the courts is elusive however, because each institution is the external representative of what is perceived to be an autonomous realm - politics and law. The judiciary is not normally thought of as a part of government; independent is the adjective most often used to denote its separate status. This is the case despite the fact that judges of the Supreme Court of Canada and of the district, county, and superior courts of the provinces are appointed by (and may be removed by) the governor general, while the constitution, maintenance, and organization of provincial courts rests with the prov-

Law, Judiciary, and the Crown

135

inces, and similar responsibility for the Supreme Court of Canada (and any additional courts established by Parliament) lies with the central authorities. Unlike almost every other topic discussed in this book, the principle of an independent judiciary owes nothing to the grant of responsible government.1 Recognized in British North America well before the 1840s, that principle had received statutory sanction in England more than a century earlier in the Act of Settlement of 1701. It needs to be remembered, too, that with the significant exception of the Dominion courts (the Supreme Court of Canada being the obvious example), the administration of justice went largely untouched by Confederation. The signal characteristic of the judiciary after 1867 was its continuity with the past. The common law and its interpreters thus operated in a different realm from that occupied by the politicians; a realm so distinct in Britain (and, by implication, in Canada) that Walter Bagehot omitted to discuss the judiciary in The English Constitution (1867).2 None the less, it would be carrying the meaning of an independent judiciary too far to deny the centrality of law to governing. It is one thing to say that the courts are autonomous institutions, but it is quite another to suggest that what they do is unconnected to politics. For in systems based on the Westminster model, as Bagehot himself recognized, law is master of the constitution, and that law is not a higher law, not a fundamental or codified law, but ordinary law - the common law. A political scientist untrained in law should hesitate to enter so specialized a subject, and in the present context it is judicious to be brief. Yet it is important to elucidate the relationship of law and politics, especially in the era before the Charter. The influence of that document has been great and will grow, but it is misleading to suppose that before its appearance Canadian politics existed in a legal vacuum. On the contrary, concepts about the constitution and about how politics are to be conducted originated in an earlier understanding of law, whose most concise statement is still to be found in A.V. Dicey's classic work, The Law of the Constitution. Dicey's influence has been debated and disputed, particularly his discussion of parliamentary sovereignty, but his definition of the rule of law propounds a tenet at the heart of parliamentary government and, more importantly for the purpose of this study, one that has augmented the power of the Crown. The 'rule of law' [he wrote] may be used as a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally

136 The Invisible Crown form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary law of the land.3

It is as an enunciation of practical law that Dicey's text assumes importance here. All law originates in the courts, of which Parliament is one; it is interpreted by judges and argued by advocates drawn from a common bar and not from the civil service; all persons, including the Crown, are subject to that law; the law is personal not abstract, immediate not remote, territorial not academic, humanistic not theistic. In this interpretation there is no place for special courts or discretionary laws. These, in the form of the courts of Star Chamber and in the claims of the Stuart kings, had disappeared in the early seventeenth century, and Dicey imparted to students of the law a strong prejudice against their return in the modern guise of administrative courts and tribunals or in the form of administrative law. When to this view of law is added Dicey's depiction of the legal sovereignty of Parliament, then the autonomy of the judiciary, however independent it may be from political control, is severely curtailed. More than that, the achievement of responsible government, which represented a political victory for the elected executive over the Crown, took comfort from a legal perspective that equated Parliament's will with the will of those who controlled Parliament. The convenient result saw party discipline enforce coherence in Parliament and law validate the product of that coherence - public policy - either in the form of legislation or as regulation. Dicey's interpretation of the rule of law went further than this, however. The law of the constitution was comprised of 'rules' which were the consequence of the accumulated rights of 'individuals.' This is a very different conception from that found, say, in the United States Constitution, which placed the 'ultimate source of governmental power ... in the governed.'4 The rule of law in Canada did not mean the supremacy of law, at least not until the advent of the Charter. Instead, the rule of law was evolutionary and therefore at any particular moment its content had to be found. It was also the product of judgments about individual rights rather than about those of collectivities such as classes or groups. The contrast, then, between the rule of law and the Charter's guarantees which bind all governments to assure, in perpetuity as it were, a stan-

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dard of treatment (in some cases for collectivities) is both striking and illustrative of the fundamental shift that has occurred in legal and political attitudes. Nothing less than a redefinition of the meaning of the constitution has resulted. Traditional Canadian views of that subject were at best imprecise, as the following interchange between Duff Patrullo (then premier of British Columbia) and the chairman of the Rowell-Sirois Commission (Newton Rowell) revealed in 1938: CHAIR: What is the view of this government as to the inclusion of certain fundamental rights of citizenship in the Canadian Constitution? PATTULLO: By the constitution does one mean the British North America Act? CHAIR: Yes, that is what is meant. PATTULLO: Is the British North America Act a constitution? Is it not simply a definition of the powers as between the respective authorities of the Dominion and the provinces? Is it really a constitution at all?5

The premier's perplexity at the terms of the question he was being asked was not his alone nor confined to half a century ago. The other constitution - the one to do with everything but the structure of federalism - is not to be found in the Act of 1867, except by reference to the preamble which speaks of the federating provinces desiring a constitution 'similar in Principle to that of the United Kingdom' and which, while providing for the legislative authority in the Dominion, contents itself with declaring 'therein' 'the Nature of the Executive Government/ Here the constitution is synonymous with responsible government, with government accountable to the people through the legislature. Responsible government came to Canada not by changes to the law but by the governors of the different colonies adopting new rules of practice with regard to selecting their advisers. These rules of practice Dicey, and most commentators since his day, called conventions. The subject of conventions is too well known and widely discussed to require elaboration.6 It is mentioned here only to underline the point that these rules of behaviour are of a piece with Dicey's rule of law. They are particularistic in character (that is, they apply in specific factual situations, the same kind of situations that gave rise to the common law) and evolutionary in development (perhaps not like law, flowing from precedent to precedent, but embodying strong historical persuasive power). Not all conventions are hoary with age, but lineage is an important ingredient. But conventions differ from the law of the constitution

138 The Invisible Crown in that while they may be considered binding on individuals in public office, they are neither enforceable by courts nor subject to judicial interpretation. At least this was so until recently; but in the patriation reference of 1981, the Supreme Court of Canada advised that 'convention, though not law, required that certain amendments to the Canadian constitution must have a "substantial measure" or a "substantial degree" of provincial consent/7 The Tightness of that opinion was disputed, most vocally by Eugene Forsey, both for its accuracy in light of past amending procedure and its implication for responsible government, whose practice is based almost totally upon convention. If the courts were to enter what Felix Frankfurter, speaking of another virgin area of politics, representation, once called the 'thicket/ they would, Forsey feared, freeze the constitution.8 More specifically, they would endanger the delicate balance of the Crown and Parliament, established in England in the seventeenth century and which by inheritance is 'the law' of the Canadian constitution. The possibility of that happening increased after 1982 because the Constitution Act that year entrenched the offices of the Crown (section 41a), making it more possible that they would become subject to judicial review. With the exception of its reserve powers, to assure the maintenance of responsible government, the Crown is subject to the advice of its ministers. Political accountability rests in that subjection, for ultimately the ministers must answer to Parliament for their advice. As previous chapters have demonstrated, in a system of constitutional monarchy the power of the political executive is magnified by its privileged relationship with the Crown. Yet it is doubtful that any restriction of that privilege, other than provided through Parliament, would be consonant with the principle of democratic control. Nor would it be consonant with over three centuries of judicial interpretation of the constitution. The present discontent with the constitution arises out of ignorance of the past (Forsey, for example, perennially complained that officials in the Department of Justice did not know the constitutional history of England) and out of the very real tension that comes from the marriage of the Charter to parliamentary government. It also has roots in the older tension between federalism and parliamentary government; it is no coincidence that the patriation reference concerned this latter subject. The uniqueness of that episode lay in the judiciary's willingness to import the convention of provincial consent as a principle to be observed and then to impart to that convention an imprecise definition.

Law, Judiciary, and the Crown 139 The Supreme Court has yet to realize the fears of its recent critics; on the matter of convention it has remained silent since 1981. But it would be a mistake to limit attention in this matter only to recent events. Earlier judicial activity also had an effect on the place of the Crown in the constitution, and for much of the history of Confederation. That influence, however, has usually been indirect, occurring as a secondary effect, with the Crown often the collateral beneficiary. On rare occasions the impact has been explicit as well, in judgments such as Liquidators, where the courts redefined the nature of Canadian federalism by recourse to the Crown's prerogative power. In discussing the contribution of the judiciary to defining the Crown, the structure of the courts and law in Canada cannot be overlooked; for both have acted as a brake on the centrifugal forces of geography and politics. The consequence is most evident when Canadian experience is placed next to that of the neighbouring republic. W.R. Lederman summarized the difference: There is not, generally speaking, any division of jurisdiction in [Canadianl courts corresponding to the division of legislative powers between the provincial legislatures and the federal parliament ... There is no significant vertical division in the Canadian judicial system corresponding to the division between the separate systems of state and federal courts in the United States/9 Like all summaries, Lederman's benefits from elaboration. First, although the Canadian judicial system is a hierarchy, it is only nominally one of inferior and superior courts; Macdonald made this point more than a century ago: The Provincial superior courts are really more important, and their decisions are held in as great respect as are those of the Dominion Court of Appeal/10 Secondly, two decades after Lederman wrote his article, 'judicial power to review federal administrative activities was transferred from the superior courts of the provinces to the newly established Federal Court of Canada/ an innovation that 'moved the Canadian judicial system closer to an American-style system of dual courts/11 These clarifications notwithstanding, the fact remains that the difference between the two countries is greater than a simple contrast in judicial structures would suggest. In the United States, according to one American scholar, 'the State courts are the only courts of general jurisdiction and, thus, the basic court system of the nation/12 The dualism of the American system is not elegant, says Lederman (for instance, state courts enforce national as well as state laws), but in comparison to Canada, it is much more decentralized, beginning with judges in these courts being chosen by each state. More than that, struc-

140 The Invisible Crown tural pluralism may have a dispersive effect, not only on litigation but on political activity, since litigation is usually a cause or an effect of public policy. As another American writer has demonstrated, the availability of a dual court structure has at different times promoted and suppressed the advance of civil rights in the United States.13 Arguably, Canada's integrated court structure, where all superior court judges are appointed by the governor-in-council, in company with a single criminal code, has helped reinforce the concentration of power inherent in the Crown-in-Parliament. At the very least, the comparative unity of Canadian judicial structures contributes to the strength of the country's political process. In this respect, therefore, it is congruent with the constitutional arrangement of power in the same way, it might be argued, that the fragmented judicial system of the United States is congruent with that country's constitutional principle of a separation of powers. Lord Devlin, a distinguished law lord and advocate, once attributed the dominance of the United States Supreme Court to two factors: 'a constitution as a source of life' (juxtaposed to Dicey's 'law of the constitution') and 'a legislative vacuum for it to fill.' Elaborating on the second characteristic, he posited that 'in a unitary as distinct from a federal state, there is no such vacuum/14 Although he was speaking of the United States, his words imply a generalization about all federal systems. It is debatable nevertheless whether a vacuum of this sort exists in any parliamentary federation; in his annotated copy of Devlin's address, Willard Estey, then a judge of the Supreme Court of Canada, wrote beside the statement this question: 'Does Canada have such a vacuum?'15 If such a condition exists in the United States, its probable cause is the separation and not the division of powers. In Canada, court judgments have tended to sustain Parliament (or legislatures) and to repulse as 'improper' attacks to undermine their power.16 In addition to deflecting attacks, the Judicial Committee of the Privy Council fortified Canadian governments through its finding that legislative and executive power are 'correlative' and thus the distribution of executive authority 'in substance' followed the grant of legislative powers.17 It is not possible to discuss the contribution court structures have made to the operation and power of the Crown without reference to the role played by the Judicial Committee of the Privy Council, which remained Canada's final appeal body until 1949. At issue here is not the appropriateness of the Judicial Committee's opinions for the development of Canadian federalism. Still less is it the question why the Com-

Law, Judiciary, and the Crown 141 mittee paid so little heed to the views of Macdonald and Cartier and other centralists in interpreting the terms of the Constitution Act, 1867. Rather the point is what influence the Judicial Committee's structure had on subsequent events. The right to appeal by leave of the king to his council is centuries old. Although abolished by Act of Parliament in 1641 for subjects in England, the right continued for colonists. What was initially a prerogative right was supplemented by statutory permission when the Judicial Committee was created by imperial legislation in 1833. Technically, since the Judicial Committee was not a court of law, it could only advise the king, although this was a distinction without a difference, as Viscount Haldane explained to the attorney general of the Irish Free State in 1923, when the first petitions from that new entity reached the Judicial Committee. It is a long-standing constitutional anomaly that we ... giv[e] advice to His Majesty, but in a judicial spirit... We are really Judges, but in form and in name we are the Committee of the Privy Council. The Sovereign ... always acts on the report which we make. Our report is made public ... It is delivered in printed form ... In substance what takes place is strictly a judicial proceeding.18

The impact of Judicial Committee opinions on the development of the Constitution Act, 1867 is known to most students of Canadian politics. Indeed, that history is so well ingrained that its knowledge obscures other features of the Committee's relationship to Canada, beginning with the fact, according to a legal historian, G. Blaine Baker, that its influence was episodic and this because appeals to it early in the nineteenth century were infrequent. He quotes the editors of the English Law Times in 1857 as saying that 'from no colony [than Upper Canada] have fewer cases been appealed to the Judicial Committee/ Between 1807 and 1888, Baker notes, 'about three appeals a decade went from Upper Canada/Ontario to the ... Committee'; for Lower Canada/Quebec the number was eighteen, and for Nova Scotia four. For the later period, 1889 to 1913, 'an average of thirty-one appeals went from Ontario ... each decade,' while from Quebec the number was thirty-nine and from Nova Scotia six. The increase for Ontario, therefore, was 'by a multiple of ten in the two decades straddling the turn of the twentieth century/ and one and a half 'for its numerically closest common-law neighbour/19 These statistics are an index of the strength of an indigenous Canadian legal culture that succumbed later in the 1800s to imperial preoccupations, not least to the belief in Taw as a link of Empire/20

142 The Invisible Crown Baker labels this development 'the rise of legal neo-colonialism' and cites reasons specific to the changing legal profession in Canada for what happened. One of these is none the less relevant to this study: the growth of judicial review as a means of moulding the constitution. Judicial review of colonial constitutions was uncommon before 1867. Compared to later decades of the century, legislation was meagre; in any case, the constitutions were unitary and therefore conflict of jurisdiction was not possible, and where colonial action trespassed on imperial law or interests, the prerogative powers of reservation and disallowance could be invoked.21 After Confederation the idea took hold in legal minds and in the consciousness of social reformers in Canada and elsewhere that society's development might be controlled - that, indeed, there was such a thing as society and, in turn, a political system capable of affecting it by human manipulation.22 Decades later, the same sequence of events was recapitulated in Quebec, where 'new elites embarked on a program of legislative activism/ This sudden increase in regulation by statute fits into our vision of the Quebec Revolution/23 The achievement of Confederation thus coincided with a change in perspective on the role of the state on both sides of the Atlantic. That created the potential for more government. But Confederation also meant more governments, and it was with this second development that judicial review assumed such prominence in Canada. The same, of course, could be said of its sister federation, Australia, after the formation of the Commonwealth in 1901, or of the United States even before Canada's creation. The singular difference in these comparative experiences lay in Canada's ultimate judicial appeal body for more than a century after Confederation being absentee lawgivers. In addition to geographic separation - maybe in part because of it - the Judicial Committee came to see itself as the custodian of the provinces. That selfimposed responsibility grew at the same time that appeals to the Judicial Committee began to increase and for reasons nowhere better summarized than by Viscount Haldane in the Irish case already cited: The growth particularly of the dominions, has led to a very substantial restriction of the exercise of the prerogative by the Sovereign on the advice of the Judicial Committee ... It is also necessary to keep a certain discretion, because when you are dealing with the Dominions you find that they differ very much. For instance, in States that are not unitary States - that is to say, States within themselves - questions may arise between the central Government and the State, which, when an appeal is admitted, give rise very readily to questions which are

Law, Judiciary, and the Crown 143 apparently very small, but which may involve serious considerations, and there leave to appeal is given rather freely. In Canada there are a number of cases in which leave to appeal is granted because Canada is not a unitary State, and because it is the desire of Canada that the Sovereign should retain the power of exercising his prerogative.24

Haldane was not the only member of the Judicial Committee, but his views on federalism, and particularly Canadian federalism, proved unusually persuasive in consolidating the trend already begun in favour of the provinces. Part of his persuasiveness in arguing for recognition of a state within a state, it has been suggested, lay in his tenacious hold of Hegelian metaphysics which he tirelessly advanced. He wrote approvingly of politicians who recognized that 'the life of the State ... was as real and as great as the life of the individual/ and he believed that 'law was imbedded in a context which was not solely legal/25 The good constitution was about more than law, it was about creating conditions for individual development, and in the Canadian federation that seemed to him most practicable in the provinces. Haldane's views proved of incontestable importance for the provincial Crown. Although he did not join the Committee until 1911, after Liquidators, for instance, his opinions 'enlarged the scope of provincial power' in areas of great significance to twentieth-century politics. Several instances might be cited of his influence, but for the purposes of illustration, the Bonanza Creek case graphically portrays the theoretical and practical consequences of judicial review for the constitution.26 Bonanza, as already noted, asserted the strict coordination between the executive and legislature, a correlation Haldane had proclaimed more than a decade before.27 Bonanza, and a series of property and civil rights cases that saw 'matters such as labour relations, unemployment insurance and securities regulation pass ... into provincial hands/ built on Liquidators. In Bonanza the Committee found that a company incorporated by letters patent in Ontario but carrying on gold mining in the Yukon derived its authority from an exercise of the prerogative of the Crown vested in the province ... and so [was] not subject to the ultra vires rule. As a result of this decision not only could provincial companies carry on their main business beyond their territorial boundaries in almost any type of business they wished, but also Canada was left in the position where six of the eleven jurisdictions used systems of incorporation basically different from the other five.28

144 The Invisible Crown All provinces stood to gain from Haldane's philosophy made law, although some years had to pass before a period of peace and prosperity made conditions ripe for a surge in provincial development. It took even longer for Quebeckers, who also had to overcome their traditional fear of the state; what Jean Beetz, then professor of constitutional law, described as 'la vieille méfiance éprouvée a l'endroit des interventions de l'État.' When they did, the recipient of their trust was TÉtat québécois'; and for that reversal of tradition, Beetz acknowledged as a prime cause the Judicial Committee working under the influence of Haldane's philosophy: Sans doute, grace ä l'interpretation du Conseil privé, cette extension de la competence civile a-t-elle été reconnue pour toutes les provinces et non seulement pour le Quebec, mais elle a pris, au Quebec, une saveur particuliére. Elle a démystifié, ou si Ton veut, désacralisé un domaine législatif étroitement associé ä l'identité collective des Québécois et auquel la constitution elle-méme, par ses articles 94, 97, et 98 avait fait un sort ä part. Elle a de plus procuré ä la collectivité québécoise des moyens de controler en partie ce domaine qui avait été pratiquement interdit ä ses membres, ä l'époque du libéralisme économique, la grande industrie, la haute finance. Elle lui a donné prise sur Tune de ees valeurs nouvelles pour elle, et qu'elle convoite d'autant plus aprement qu'elle en a été longtemps sevrée, les richesses materielles.29

Appeals to the Judicial Committee continued as long as they did because there was no means until the Statute of Westminster, by which Canada could legislate an end to appeals by leave - that is, to those based on the prerogative. Earlier legislation to abolish appeals in criminal matters had been declared invalid by the Committee in 1926, and although a second attempt was upheld in 1935 (now that the repugnancy provisions of the Colonial Laws Validity Act of 1865 no longer applied to the dominions), the intervention of war delayed abolition of civil appeals until 1949.30 Thus it was the structure of judicial review, in the form of the Judicial Committee of the Privy Council to whom appeals by leave were granted as a prerogative right, that exerted such a determinative influence over the development of Canadian constitutional law. The extent of that influence is all the more intriguing when it is recalled that 'in the United States, federal regulation often followed in the wake of unsuccessful state legislation ... [while] in Canada the pattern was different - the federal government usually entered the field first ... It was then forced to retreat in the face of unfavourable judicial decisions/31 In short, the judiciary held federal initiatives in check.

Law, Judiciary, and the Crown 145 The direction this influence would take became evident within a decade of Confederation, at the time of the actual founding of the Supreme Court of Canada. Although section 101 of the Constitution Act, 1867, empowered Parliament to establish and maintain both a general and additional courts 'for the better administration of justice/ initial attempts to end appeals from the new court met opposition in Britain, particularly in legal circles and especially from the lord chancellor.32 Ultimately the British authorities accepted the Supreme Court legislation on assurance from Ottawa that appeals by leave would continue. The resolution of this dispute itself owed something to the exercise of the prerogative in Canada, for the government of Alexander Mackenzie pressed the administrator (who until the Letters Patent were amended in 1905 was the commander of the forces at Halifax and who acted in this instance in the absence of the governor general, Lord Dufferin) to proclaim as quickly as possible the appointments of the new Supreme Court justices and staff and to initiate with similar speed the operation of the Court. On this occasion the administrator (Lieutenant O'Grady Haly) expressed himself 'a little vexed at the sudden manner in which the question was raised/33 The reason for the rush lay in the Canadian government's fear that the imperial government might disallow the Supreme Court bill in light of the uncertain status of future appeals to the Judicial Committee. The sudden appointments were in the nature of a pre-emptive strike to make subsequent disallowance troublesome and embarrassing to British officials. In fact the power was not used, but the possibility that prerogative power might be summoned in this instance to regulate the character of judicial review serves as a reminder that law and politics are never hermetic compartments in the constitutional history of Canada. Yet did not these executive powers make judicial review redundant? That question had greater relevance in the context of Canada's own constitution than it did in regard to relations between Canada and the imperial government. The use of reservation and disallowance by Britain over the affairs of a self-governing colony was already in decline, but sections 55 to 57 and 90 of the Constitution Act, 1867, introduced both powers, to be exercised by the Crown's representative on ministerial advice, in Ottawa's relations with the provincial governments. Did these not then 'form the basis for an entirely different mechanism [than judicial review] for regulating the division of legislative powers?'34 There were two arguments in support of that proposition: reservation and disallowance were consistent with Confederation's object of establishing a

146 The Invisible Crown strong federal government; and, rather surprisingly, there was no provision in the Constitution Act, 1867, for judicial review. The substance of the debate over the respective merits of judicial review versus reservation and disallowance as a means of regulating federal-provincial relations is peripheral to the subject of the judiciary and the Crown; so, too, is the intent or understanding of the Fathers of Confederation on this matter. The subject is raised only to underline once again that within Canada's federal framework there is an alternative to the legal regulation of disputes. That alternative is found in executive powers which, though statutorily prescribed, derive from the prerogative of the Crown and are exercised on the advice of responsible ministers.35 Thus the law of the constitution, that amalgam of convention, practice, and common law which Dicey was to anatomize for the first time in 1885, was not expelled from the federative act. At its beginning the Confederation document offered ample scope for political manipulation of federalism, a feature that remains even though its original instrument, the Crown's representative-in-council, has changed. In addition to the influence they have exerted on the scope and structure of executive authority through judicial review, the courts have played an equally important but technically non-judicial function through their role as provisioners of advisory opinions. Advisory opinions are given by courts or judges on questions of law submitted to them by governments or legislatures. The act establishing the Supreme Court in 1875 empowered 'the Governor-in-Council to refer ... any matters whatsoever as he may think fit ... and [required] the Court ... [to] hear and consider the same and certify their opinion thereon/ Later in the century the provinces imitated this provision with respect to their lieutenant-governor-in-council, legislature, and provincial courts. In his study of Judicial Review of Legislation in Canada, Barry L. Strayer has advanced strong reasons for acknowledging the importance of advisory opinions (collectively known as the constitutional reference system) to Canada's political development. Of one hundred and ninety-seven cases [between 1867 and 1966] involving the distribution of legislative power, sixty-eight had their origins in a constitutional reference while one hundred and twenty-nine involved concrete cases. Nor does the fact that a third of the leading decisions were given in such proceedings reveal the full significance of constitutional references. In terms of impact upon the political, social, and economic affairs of the country the decisions in these cases have had an effect far beyond their numerical proportion.36

Law, Judiciary, and the Crown 147 The constitutionality of the federal executive seeking advisory opinions was itself tested in 1912 by the provinces who, according to Stray er, 'apparently regarded this reference system as a sinister device intended primarily to enable federal authorities to attack provincial legislation in a federally created court/37 In that case the Judicial Committee upheld the constitutionality of advisory opinions in general and, more specifically, accepted as valid the Court acting in its capacity as advisory board to the executive. This interdependent relationship of executive and judiciary, which on the one hand violates the canon of ministerial responsibility and on the other any pretence at a separation of powers (for this reason the Supreme Court of the United States refuses to accept reference questions), was deemed acceptable because Parliament had determined that it should be a function of the Court. It would, the Committee maintained, be 'subversive' of the principle of 'internal self-government' to deny Parliament the right to act as it pleased within its jurisdiction. Parliament had spoken, and 'with the wisdom or expediency or policy of an Act, lawfully passed, no Court has a word to say/38 In reaching its conclusion, the Committee wryly noted that 'nearly all the provinces have themselves passed provincial laws requiring their own Courts to answer questions not in litigation/ and found very strange the proposition that only federal legislation of this type was invalid. Suspicion that the reference power would be used to further governmental ends in federal-provincial disputes was not a preoccupation of the provinces only. As Paul Romney has richly demonstrated, there are few more striking instances of political cunning in Canadian history than the use Oliver Mowat (Ontario premier and attorney-general, 187296) made of the special reference in his campaign to advance the cause of provincial rights. It was, Romney says, one of two instruments Mowat favoured; the other was 'the loaded statute ... designed to bring a specific constitutional question before the courts in the most desirable form/39 Herein lay at least one reason for Macdonald's growing unease at the utility of disallowance. Nor was this constitutional weapon to become outmoded in the twentieth century. Subjects as diverse as the control of radio, airlines, unemployment insurance, conditions of work, and natural products marketing in the 1930s, or offshore minerals in the 1960s, or constitutional amendment procedure and bilingualism in Manitoba in the 1980s, all came on reference to the Supreme Court and, until the cessation of appeals to the Judicial Committee, might proceed from there to London. The patriation reference in fact came to the Supreme Court as an appeal

148 The Invisible Crown on decisions given by three provincial courts of appeal on reference questions, a route made necessary when the federal government refused to submit a reference question directly to the Supreme Court on the validity of its proposed unilateral procedure. There is a wealth of published interpretation, both as to the law and politics of these particular disputes, which is scarcely surprising given the importance of each for the regulatory or economic power that accrues to the successful party in the dispute. Less frequently acknowledged is the enabling power that the reference case confers on the political executive. For with the virtual monopoly of control it has of the Crown, government at either level may use the reference device (or threaten its use) as a strategic move in intergovernmental relations. This option is all the more influential because many of the jurisdictional areas that give rise to dispute in the first place are themselves constitutionally uncertain. Although reference questions go to the judiciary, it is the executive that decides when (or even if) the question will be asked and the content of the question. With that prerogative, the executive 'could undermine our whole judicial system/ said Eugene Forsey, following the federal government's decision to refer the question of ownership of Newfoundland's offshore oil resources to the Supreme Court of Canada even though the question was then before that province's Court of Appeal. For, he continued, 'it interferes with the normal judicial procedures by removing ... an essential part of the questions placed before it.'40 Nearly a century earlier, John A. Macdonald had expressed similar reservations, viewing access to advisory opinions as an incentive for governments 'careless ... of constitutional principles' to pack the Supreme Court and thereby avoid lower court decisions.41 Macdonald was not always consistent in his opinion of the usefulness of the advisory technique, his own government's most recent experience with the mechanism, often as employed by Mowat, being the telling factor in his current attitude. Neither for that matter was Forsey. After the Supreme Court's opinion on the matter of convention in the Canadian constitution, Forsey concluded that consultation with the Court could be 'rather dangerous' and advisory opinions 'a somewhat mixed blessing.'42 Now that the judiciary deemed itself qualified to rule on matters previously thought non-justiciable, an executive that consulted the Court had to face a new risk. And for the Crown, whose offices were entrenched in the constitution after 1982, the risk appeared all the more probable since it was conventions - largely unwritten and protean which reconciled the substance of monarchical power to its democratic

Law, Judiciary, and the Crown 149 form. What happened in 1982, of course, has to be kept in perspective; neither then nor later did the judiciary overtly challenge the Crown-inParliament. None the less, the last decade has witnessed a change in the organizing pattern of political life in Canada. It is a pattern usually associated with the influence of the Charter of Rights and Freedoms on the principle of legislative supremacy, but implicitly it also has consequences for the relationship between the judiciary and the executive. This change is not always directly attributable to the Charter. In the Manitoba Language Rights reference in 1985, for instance, the Supreme Court temporarily validated unilingual laws (dating from passage of that province's language legislation in 1890) it had earlier unanimously found invalid. In response to this declaration, one judge of the Manitoba Court of Appeal asserted: I do not understand how the Supreme Court or any other court has the power to declare judicially valid or enforceable that which is judicially invalid. I do not understand ... an usurpation by a court of the royal power ... I think it is the Queen in right of Manitoba who has the right to proclaim measures necessary to meet the situation.43

The Manitoba decision sums up well what has happened in Canadian politics. A shift of power to the national judiciary has taken place for which the Charter is largely but not wholly responsible. Behind, or preceding it perhaps, is the appearance of a new constitutional order which increasingly promotes among the three branches of government a reciprocated awareness of the limitations of each. Paradoxically, a contributing factor to this sense of boundaries has been the executive-inspired Court Challenges Program. 'Realizing [says a history of the program written after its abolition in 1992] that the costs of pursuing litigation involving matters of principle and the public interest can constitute a heavy burden on individuals and groups of limited means, the federal government of the time [1978] stepped forward and offered financial assistance to a number of litigants. Initially, the program was directed at clarifying the scope of language rights then protected under various provisions of Canada's constitution (for example, section 133 of the Constitution Act, 1867 and section 23 of the Manitoba Act). Among the first litigants so supported was Forest, the defendant in the 1979 landmark decision, Attorney General of Manitoba v. Forest, which found the 1890 Official Language Act of Manitoba (1890) unconstitutional. That decision led to a subsequent challenge, Bilodeau v.

150 The Invisible Crown Attorney General of Manitoba (also supported by the program) on the status of Manitoba's unilingual laws. Ultimately that case was appealed to the Supreme Court of Canada, at which time the federal government joined to it the reference on the general question of the validity of the province's laws. In the 1980s the program was expanded to include language rights protected under new constitutional amendments (sections 16-23 of the Charter) and equality rights (section 15). In any discussion about the shift of power to the courts, two things call for notice. First, language rights cases and Charter challenges have provided two of the most publicized areas of judicial activity, and many of these (seventeen of the former between 1978 and 1985) received financial assistance from the Court Challenges Program. Secondly, until 1985 the program was run by the Department of Justice and the Department of the Secretary of State; after 1985 and until its cancellation, it was administered in sequence by the Canadian Council on Social Development and then by the University of Ottawa's Human Rights Research and Education Centre. Thus, for more than half of its life, the program, which had been conceived by the executive, was also run by it. Of course, in the Canadian legal system it is at the discretion of federal and provincial ministers of justice, or their officials, to decide whether to lay charges in an instance of law-breaking. In itself, therefore, the arrangement of responsibilities in the Court Challenges Program was not unusual, except in this respect: at issue here was not the enforcement of law but the selective intervention of the executive on behalf of complainants in language and equality rights cases. The executive had other weapons it might have used to advance such matters of public interest. Disallowance and advisory opinions were two, but each brought its own political or legal encumbrance. In the language rights cases, the federal government faced provincial governments whose policies challenged official bilingualism. At the same time as the Supreme Court found Manitoba's language legislation unconstitutional, it also found (in another program-supported case, Attorney General of Quebec v. Blaikie et al.) Quebec's Bill 101, 'Charter of the French Language/ similarly flawed because of its conflict with section 133 of the Constitution Act, 1867. If disallowance was a failing remedy in the 1870s, how much more so was it a century later in a language battle between a Parti Québécois government and a federal government led by Pierre Trudeau. But neither was recourse to an advisory opinion, which circumvented the test of the provincial courts of first instance where all evidence could be presented and argued, attractive. The appeal of the

Law, Judiciary, and the Crown 151 approach offered by the Court Challenges Program was that it assured the controversy would be placed in the legal system fully and early. The Court Challenges Program offers compelling evidence for those who argue that there has been a legalization of politics in Canada. Yet its effect is both revealing and unrevealing: true, the courts have been its beneficiaries, but true also that its life, from alpha to omega, was controlled by the government. The history of the program serves as a reminder then that the shift in power to the judiciary is less unequivocal than it might appear. Nonetheless, as early as 1982, scholars such as Peter Russell had predicted that the courts would increase in power and prominence because 'a constitutional charter of rights will expand the policy-making role of Canadian courts/45 It was in the nature of Charter challenges for this to happen. Unlike the familiar federal-provincial disputes over divisions of powers, the newer conflicts turned on the issue of rights, and these were 'concerned with limitations on governmental power/ In the opinion of Joseph Eliot Magnet, the latter concerns more directly called into question the wisdom of legislative policy.46 Thus it became the practice of the courts to consider policy implications to a far greater degree than had once been the case and, in consequence, to exercise a stronger influence over policy matters. Russell adds a useful caveat to that generalization, however: the judiciary has always had an opportunity to influence public policy, for example through their Vital role in shaping the treatment of crime and punishment/ through 'the exercise of their administrative law jurisdiction/ and their participation in royal commissions.47 The courts are more visible because they are called upon to review and enforce executive decisions and regulations that are complex and of concern to numerous individuals and organizations. When, as in February 1994, the Supreme Court of Canada ruled that 'Hydro-Quebec cannot build new power facilities that produce exports for the United States unless federal environmental reviews are conducted first/ it is clearly no longer a question simply of policing an industry's conduct.48 Subjects as diverse as the environment in this case, or broadcasting or consumer protection in others, lead the judiciary to pronounce on matters that affect federal-provincial relations, international relations, the economy or, as regards Hydro-Quebec, relations between governments and the aboriginal people. In these and other areas, court activity touches upon and may curtail executive discretion. The structures and processes of the modern administrative state are jeopardized as a result, for in Canada these are rooted in the preroga-

152 The Invisible Crown tives of the Crown. The heretical status of executive-appointed boards and commissions who exercise quasi-judicial power has long attracted criticism. The new constitutional order augments that concern by adding to it a distrust of patronage, while at the same time calling for limitations on its use. There is irony none the less in the courts finding against these bodies on the grounds that 'the ability of government to revoke appointments of [their] members flies in the face of the rules of natural justice/49 For as the case from which this translated quotation is taken itself notes: 11 existe un lien de dépendance institutionelle du judiciaire envers l'executif/50 Members of the judiciary are appointed by the Crown, and their independence is as dependent upon convention as any public office has ever been. Perhaps even more so, since as the Quebec Superior Court observed in 1993, 'Le pouvoir judiciaire comment tel, contrairement au pouvoir exécutif ou au pouvoir legislatif, n'existe pas ailleurs que dans chacun des juges ... Le pouvoir judiciaire n'a aucun représentant au sens usuel du mot/51 For this reason, structures designed to assure judicial independence are of more political interest than the principle of judicial independence. It is beyond the scope of this study to investigate the evolution of these structures, except to say that judicial self-regulation is the objective sought. The foundation is the Canadian Judicial Council, created in 1971 as a statutory body under the Judges Act and composed of all the chief justices and associate chief justices of the superior courts of the land, with the chief justice of the Supreme Court of Canada its chair. One of the Council's duties is to reduce the politicization of the judiciary, a threat more commonly thought to emanate from the executive but which on occasion can be viewed as coming from the bench. Of the latter, the most prominent instance was the criticism Judge Thomas Berger of the British Columbia Supreme Court made of the Constitution Act, 1982, for its neglect, among other things, of aboriginal interests. Mr Trudeau described Berger's comments as 'the judiciary getting mixed up into politics/ and expressed the hope that the judges would do something about it. In fact, a committee of the Council, acting on an earlier complaint from a Federal Court judge, did find Berger's remarks 'indiscreet ... [but] no basis for a recommendation that he be removed from office/ Later still, the chief justice, Bora Laskin, described a judge speaking on a political issue as 'forbidden territory [because] a judge has no freedom of speech to address political issues which have nothing to do with his judicial duties/ On his side, Judge Berger disputed the Council's authority to censure him, claiming this was an action 'too important

Law, Judiciary, and the Crown 153 to be left to judges'; it should, he said, be carried out only by Parliament.52 The Berger case reinforces the earlier observation that law and politics are permeable and not watertight compartments. The potential influence of each on the other increases where, for instance, 'les ministres de la Justice se retrouvent de plus en plus fréquemment devant les tribunaux pour défendre soit la légalité, soit l'application méme des lois du Parlement ou des legislatures attaquées par les justiciables en vertu des dispositions des chartes canadienne et québécoise/53 Similarly, the employment of judges by the executive to investigate and make recommendations in the area of public policy harbours its own threat to judicial independency. In the controversy surrounding Judge Berger's remarks, it is relevant to recall that he had been appointed, on the recommendation of Mr Trudeau, to head the Mackenzie Valley Pipeline Inquiry a few years earlier and that the recommendations of that inquiry had effectively killed a project the government favoured.54 On balance, it can be argued that disputes that turn on limitations of power prove more of a challenge to the Crown than disputes that concern divisions of power. They are more challenging, perhaps, but less common, since without a higher law like the Charter for most of their history, Canadians have had no base on which to raise an attack. Division-of-power disputes, it is true, do challenge the Crown, but not from the perspective of constitutional principle. Rather, at issue is the divisibility of the Crown - the compound monarchy which the next chapter argues is the bedrock of Canadian federalism. On these occasions one may witness, metaphorically as well as legally, the Crown at war with itself. Although it is generally the case that courts are reluctant to interfere in politics, in matters of jurisdictional disputes they have no choice. And when that happens, their judgments directly affect the Crown, for it is that institution that both legitimates and protects Canadian federalism. Canada's central government structure is distinct among federal states for the absence of an institution that effectively incorporates and represents its constituent parts. The federalized cabinet and federalprovincial conferences have evolved as necessary substitutes. And it is the absence of a political safeguard like the United States Senate which helps to explain the elevated role the judiciary plays in the operation of Canadian federalism - elevated certainly, when compared to the role the Fathers of Confederation anticipated it would have. That absence also helps to explain the divergent approaches the Supreme Courts of the

154 The Invisible Crown United States and Canada have adopted in recent cases of jurisdictional conflict in each federation. In 1985 in Garcia v. San Antonio Municipal Transit Authority, the United States Supreme Court, in a five to four decision, ruled that the country's federal system depends upon political and not legal safeguards for its perpetuation. In the words of one of the majority justices, Harry A. Blackmun, The states should look to the "procedural safeguards inherent in the nature of the federal system" rather than to the courts/55 While it is true that even in the United States Garcia attracted critical comment for the premise it advanced, and while it is equally true that constitutional rulings that affect US federalism are tangential to Canadian jurisprudence, the contrast this case posits for Canadian perspectives on federalism is none the less instructive. No Canadian Supreme Court would ever echo its United States counterpart and say that the political safeguards of this country's federal system are to be found in Parliament or, for that matter, in the constitutional composition of the cabinet. However, if the United States Supreme Court is believed by some American critics to have failed to assess correctly the requirements of a healthy federal system, that is also the opinion advanced by some Canadian scholars of the different approach taken to federalism by the Supreme Court of Canada, and for reasons that once again direct attention to the Crown. In its decision in the Queen in Right of Alberta v. Canadian Transport Commission (1977), which concerned Alberta's takeover of Pacific Western Airlines, the Court unanimously upheld the Alberta government's position that it was immune from the jurisdiction of the Commission. That decision has been criticized less for its outcome than for its 'avoidance of the larger policy issues concerning federalism.'56 The particular complaint is that it was insufficient (as the chief justice, Bora Laskin, wrote) to force the larger questions of national policy into a framework designed principally so as not to 'offend the mutually independent positions of the Crown in right of Canada and the right of a Province.' It is not necessary to agree with this criticism in order to see its relevance for the Crown in Canadian federalism. Questions about the liability and immunity of the Crown are a complex area of the law whose principles and details extend beyond the concern of this chapter.57 The literature does illustrate, however, the centrality of the Crown (or Crowns) in jurisdictional disputes, and it is that prominence which distinguishes Canadian federal practice from that of its American neighbour. In the era before the Charter, the late Ivan Rand, a former justice of the

Law, Judiciary, and the Crown

155

Supreme Court of Canada, once noted that 'Parliament could destroy any contractual right/ for the reason that 'it is the Sovereign in Parliament - by and with the consent and approval and by the authority of the same - who enacts legislation and it would be the Sovereign as expressing the totality of a corporate state with whom the contract could be made/58 The same could be said of the lieutenant-governor in the legislature, and for the same reason: that unity also expresses 'the totality of a corporate state/ this time of a province. Within its boundaries each province is sovereign, and for that reason sovereign power under the Canadian constitution is anchored in territory, a relationship recognized by every judgment that respects Crown immunity. By the same token, 'no provincial Legislature has any power to pass laws having any operation outside its own territory/59 Thus, law accentuates the territorial principle at the base of the Canadian federation. The traditional unity of the Canadian court structure might be supposed to enforce the central government's pre-eminence. But it does not. Instead, it legitimates, in the true sense of the term, the social and economic pluralism found within the country's borders. Federalism and politics in the United States are about coordination achieved through legislatures who alone can make law. That is the principle that informs the Garcia decision and that is the principle that remains foreign to Canadian federal politics. Law-making at both levels of government in Canada is a corporate enterprise. To inject one into the other would compromise the autonomy of each. This explains why political attempts in this direction have until now failed. It also explains why the judiciary must be accorded recognition for preserving the original constitutional design.

8

Compound Monarchy and Canadian Federalism

That the best interests and present and future prosperity of British North America will be promoted by a Federal Union under the Crown of Great Britain, provided such union can be effected on principles just to the several Provinces. Moved by John A. Macdonald, seconded by Charles H. Tupper, 10 October 1864

Canada's contribution to the science of governing is to be found in the marriage of parliamentary government and federalism solemnized at Confederation. According to Bagehot, there were but two constitutional arrangements available in 1867 to assure popular rule - those of Great Britain and the United States. The British North American colonies, however, chose cardinal principles from each, superimposing the federal principle of one on the political understandings of the other. Around this uneasy integration Canadian politics has since revolved. Thus parliamentary federalism was no ordinary concept. Yet its originality has been undervalued, and this for several reasons. First, Confederation has been interpreted as a reflexive response to pressure - from events in the United States, and from officials in Britain who wanted union for reasons of defence and economy. In other words, irrespective of colonial initiative, the suggestion has been that superior forces made the final outcome at the very least more than probable. That the terms of union received no popular sanction only added to the sense of inevitability at the result. Secondly, the Confederation bargain was considered by some to be retrogressive; two of the original participants to the discussion (Prince Edward Island and Newfoundland) acted on this

Compound Monarchy and Canadian Federalism 157 premise and backed out, while one (Nova Scotia) bitterly resented the financial terms agreed to and became in consequence the first in a line of aggrieved claimants for better terms. And because Confederation was slow to produce the benefits expected, a general feeling of disillusionment pervaded its early decades. Writing about discontent in Nova Scotia, one Colonial Office official summarized the wider malaise: It looks as if there would be trouble in Canada before long. It is scarcely possible that the central govt is not to blame. The dispute with Br. Columbia: the discontent in Manitoba: the complaints of the Bishop of Moosonee: the rising under Riel: and the present attitude of Nova Scotia: are instances of discontent from the Atlantic to the Pacific & from Hudson Bay to the U.S. Frontier.1

The dispatches from the governor general in Ottawa to the secretary of state for the colonies, and more particularly the minutes Colonial Office staff made preparatory to drafting their replies, communicate a strong sense of contingency about the Canadian experiment. Would the enterprise succeed; would it succeed as originally conceived? Part of the uncertainty in London arose out of unfamiliarity with the process and technique of judicial review, unknown in Britain where Parliament was sovereign, and with its application to a series of disputes between the two orders of Canadian government which federation had created. Thus in a seminal case like Citizens Insurance Co. v. Parsons in 1881 in which the Privy Council vitally restricted the federal government's potential to regulate economic activity by finding contracts affecting business within a single province to fall under property and civil rights (section 92(13)), the Colonial Office responded with innocent wonder. It is [in the words of an official's minutes] an interesting case. Their Lordships comment on the difficulties attending the construction of the Sections of the BNA Act which distribute the legislative power of the Dominion Parlt. and of the Provincial Legislatures, and, after pointing out instances of apparent conflict, state that the language of one section must be interpreted, and where necessary modified, by that of the other.2

If outside observers were bemused by the fact that the centralist presumptions of Canadian federalism were being turned on their head, those at home understood the implications perfectly well. Even Macdonald's political opponents found the prospect of the country's constitutional future being monitored by persons unacquainted with its

158 The Invisible Crown conditions disturbing. Edward Blake's abortive campaign in the 1870s to end appeals to the Privy Council arose from just this concern. Nor, it should be added, was this shortfall in British understanding of Canada a nineteenth-century phenomenon only. When, in 1980, the Trudeau government contemplated unilateral patriation of the constitution, the Foreign Affairs Committee of the United Kingdom Parliament, chaired by Sir Anthony Kershaw, set about investigating the role of that Parliament in the passage of amendments to the old British North America Act. Its reports, which concluded that Westminster was to do more than rubber stamp Canadian requests for amendments, are not material to this discussion.3 Nonetheless, the Committee's approach to the question and the counsel it took perturbed Canadian scholars. Not only did none of the British expert witness possess a close knowledge of Canada and its constitutional law, being instead, it was said, authorities in international and administrative law or, at best, having 'only a rudimentary acquaintance ... with things Canadian/4 but they and the Committee demonstrated in Canadian eyes a peculiarly narrow appreciation of the nature of federalism itself. Dicey's critique that federal government was permeated by legalism' had by some historical inversion now become its measure. Thus what other authorities called the sociology of federalism, which in the Canadian context recognized the country's cultural and territorial diversity, appeared to be rejected in favour of a rigid respect for the formal division of powers.5 One of the witnesses, Geoffrey Marshall, who on another occasion had equated the sociological approach to federalism as 'a state of mind/ later went so far as to describe Canada as 'the world's most complex system of federal distribution, which remains an aweinspiring example of what is to be avoided by any modern draftsman allocating legislative powers/6 To observers who lived within the system and had experienced its elasticity in accommodating major demographic and social changes, that judgment seemed both tendentious and selective. The influence of British thought on Canadian federalism has yet to be fully assessed, and it would be wrong to suggest that it has always been prejudicial. But Canadians have had reason to echo the sentiment of a former chief justice of Australia, Sir Owen Dixon, who believed that an understanding of federalism 'is denied to those who pass their lives under a unitary system/7 That being said, it must be acknowledged that the negative evaluation outsiders give Canadian federalism provides another reason for devaluing the achievement of 1867. More than that, it

Compound Monarchy and Canadian Federalism 159 was never the model for anyone else's federal system because it was never considered genuinely federal itself: why copy Canada when its institutional arrangements and division of powers made it, in the words of K.C. Wheare, one of this century's most quoted writers on federalism, 'quasi-federal' in law, even if its politicians exercised self-restraint and eventually made it a federal government in practice?8 The final indignity lay in the paradox that those who admired it did so for the wrong reasons. It has already been demonstrated that a minority of the colonial politicians of Australia in the 1890s spoke favourably of the Canadian federation because of the powers the central government possessed to impose national policies on dissident provinces.9 By contrast, the majority sought protection for the new states in the new Commonwealth through emulation of American and not Canadian federalism. Among these was R.R. Garran, who in several capacities exerted a major influence on the development of Australian federal thought after 1901.10 In 1895, however, he wrote a perceptive monograph on comparative federalism whose argument recognized but failed to probe the distinctiveness of Canada's federal system. Using the title 'A Problem of Federation under the Crown,' Garran wrestled with the conflict created when the federal principle of coordinate governments is joined to the monarchical (he called it the British-colonial) principle of dependency. The prevailing orthodoxy of the period, which spoke of an indivisible Crown, compounded the problem, but it did not compromise the analytical skill he used to probe the relationship of Crown and federalism. From the perspective of the present study, Garran's observations on Canadian federalism are illuminating if incomplete. On the one hand, he argued, Canada presented an imperfect model for Australia's coming federation, but on the other hand, within its flawed design he saw a solution to the conundrum posed by a federal monarchy. First, what was wrong with Canadian federalism: The Lieutenant Governor of a Canadian province is a federal officer, appointed and paid by the Dominion Government, and acting under instructions from the Dominion Executive. He is called the representative of the Queen, but he is only so second-hand. He is a representative of the 'Governor General in Council' ... He can veto Acts of the Provincial legislature, or reserve them for the assent of the Governor General - that is, in effect, of the Dominion Government. In short, the Provinces are to all intents and purposes made Dependencies of the Dominion Government as the Dominion is a dependency of the Empire. This is

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The Invisible Crown

altogether opposed to the central principle of federalism, which is that State and Union shall be supreme within its own sphere ... The whole position of the Lieutenant Governor is based upon a false analogy, and it is safe to say that Canadian experience warns us against that solution of the problem.11 The solution to the dilemma posed by constitutional monarchy in a federation none the less lay in the 'fiction that the second-rate royalty of the Lieutenant Governor can be called the Crown/ What the Canadian provinces demonstrated was that no Crown was needed in a federation. Moreover, Dominion control of the provinces, through the office of lieutenant-governor and through the other centralist provisions of Confederation, had in practice been abandoned. All that was necessary was to abolish Dominion control and the provinces would become 'sovereign Governments in the sense in which the American state is sovereign/ Let the constitution be the law, let the courts be its interpreters, and the 'wholly superfluous Crown' in the provinces (and, by implication, in the yet-to-be-created Australian states) could disappear. Its 'formal and discretionary' duties might be entrusted to the state or provincial chief justice or, if that fusion of executive and judiciary were found unpalatable, to the governor general, 'the highest non-political officer/ The problem was to purify federalism, and the solution was to liquidate the Crown in the unit governments of the federal system. This was a radical proposal which won no converts in Australia, although the problem of dependency proved real enough and the Australian decision to have state governors appointed directly by the sovereign eventually proved imperfect for that federation. Garran's reform carried no weight in Canada either, although his low esteem for the duties of the lieutenant-governor and his suggestion that they be performed by the province's chief justice on a permanent basis (as opposed to the chief justice acting as deputy for the lieutenant-governor) has been echoed by some provincial governments.12 Thus the importance of Garran's analysis of the problem of 'federation under the Crown' lies not in the remedies it offers but in its depiction of the Crown's potential to disrupt a system that embraces two orders of government. Garran defined federalism as 'the distribution of limited sovereign powers among central and local governments/ but he also recognized that any such delimitation 'is without prejudice to the rights of the sovereign/ At the time he was writing, the supreme sovereign was the Crown-in-Parliament at Westminster; yet as a component part of any legislature, the Crown constitutes a threat to any settled dis-

Compound Monarchy and Canadian Federalism 161 tribution of power. And from the perspective of Canada's centralized federalism, the latent power of the provincial Crown to disrupt could hardly be greater. Here, then, was the setting for the emerging provincial rights campaign; here, too, was the opportunity for the intergovernmental battles of the last quarter of the nineteenth century. Those conflicts over provincial claims to escheats and to the appointment of Queen's Counsel were, in the words of one lieutenant-governor of Ontario, 'immeasurably less important than the prerogative rights which [section 92 (14), the administration of justice] undeniably gives to the Provincial Legislatures/ And the reason for this, as a recent authority has argued, was that 'the larger the reservoir of authority vested in the provincial executive, the less need there was for the executive to acquire powers by legislation that might be vetoed by the dominion.'13 Canada's history and geography have together exerted notable influences on the Crown and federalism - influences which distinguish it from other countries and most notably from Australia, the parliamentary federation it is most often said to resemble. The difference is surprising in light of the two countries' comparable size and experience (at least comparable when either of them is compared to most other nations) and its explanation is to be found in the centripetal forces that have moulded Australia and in the centrifugal tensions long evident in Canada. Australia was a continent waiting to become a country; its colonies had similar economic interests and shared a homogeneous population. To this was added the unifying, or at least centralizing, impact of this century's succession of emergencies, which meant that 'the [first] four decades of Australian federalism [consisted] of an aggregate of almost eight years of war and of some years which, though of peace, were consumed in a great financial crisis.'14 The effect was to reduce the stature of the states, a result High Court decisions after 1920 reaffirmed. In this setting the issues of federalism were reduced, wrote the Australian political scientist, L.F. Crisp, to questions of 'economic management, regulation and control, or about more or less effective exercise of them/15 Thus Australia came to federation almost fully formed, a cohesion subsequent decades did nothing to undermine. In Canada the crises of this century came fifty, and not thirteen, years after Confederation, and during this period the rounding-out of the union begun in 1867 proceeded, except of course for Newfoundland, whose inclusion had to wait several more decades. Six of the ten provinces were added after 1867, and the incorporation of each followed a

162 The Invisible Crown bargain negotiated by the federal government and a series of colonial or territorial politicians. Confederation raised rather than depreciated the stature of local politicians and the new provincial governments they formed, but at the same time the establishment of new provinces increased the responsibilities and stature of the central government, since it was committed to building and maintaining railway and ferry services along with providing diverse benefits negotiated as terms of union. In contrast to Australia, Canada's Parliament created three of the new units of the federation out of federally held territory acquired in 1870 and thereafter administered for 'the purposes of the Dominion'; these last embraced grants of land not only to help finance the building of the Canadian Pacific Railway but to provide for a vast program of homestead grants organized and controlled by Ottawa. Moreover, the active engagement of the central government in national expansion continues to the present day, because 'the very large portion of Canada which is federal territory gives the Canadian government an important role in regional planning and resource development.'16 The extension of provincial boundaries (for instance, the mammoth transfer of territory to Manitoba, Ontario, and Quebec in 1912) and federal determination earlier of the size and number (as well as date of entry) of the new prairie provinces transformed Canadian federalism into a complex constellation of polities which, in the eyes of the landlocked maritime provinces, further upset the original Confederation bargain.17 Nor was this an isolated phenomenon, since every alteration to the structure of the federation had the potential, so the prime minister, Louis St Laurent, was warned in the case of Newfoundland's admission, 'to strengthen the centrifugal forces within the Dominion.'18 And this for the added reason that bilateral negotiations were conducted by Ottawa with persons in the East and the West (and perhaps now in the North) who, as Canada's high commissioner in Newfoundland observed, 'really [do not] appreciate or understand the workings of the Federal system of Government/19 Ignorance was not a condition unique to the geographic periphery, however. Sir Richard Cartwright caustically observed that at the time of the British Columbia negotiations, 'with the solitary exception of Sir Hector Langevin, who had spent a few weeks there, not a single minister had ever set foot in British Columbia.'20 Territorial expansion and the creation of new provinces resulted from the pressures of a moving frontier, itself propelled by demands for new land to accommodate the tide of immigrants reaching Canada in the late 1890s. But where both Canada and Australia received immigrants,

Compound Monarchy and Canadian Federalism 163 Canada's experience was, again, more complex. The majority of newcomers were destined to settle on the land rather than in cities; a large proportion came from countries other than the British Isles; and a significant number of immigrants became, either directly or within a generation, emigrants to the United States. With conditions such as these, the Canadian historian, A.G. Bailey, observed that 'it was difficult [for the population] to develop a sense of community/21 The demands of expansion and settlement not only required unusual activity on the part of the governments of Canada in a period when laissez-faire philosophy thrived elsewhere; it also required entrepreneurship - state-building at both levels of government - of a magnitude without equal in Australia. In addition to railways, which indeed were state-owned and operated in Australia, Canadian governments purchased or built public utilities and grain elevators and sponsored and protected a range of cooperative enterprises. Not all governments were involved to the same extent state innovation was most evident west of the Ottawa River - nor in the same economic fields - on the prairies Ottawa's retention of natural resources until 1930 deprived those provinces of one area for experimentation - but purposively-minded governments became an early feature of Canadian politics. Other influences acted as a prod to Canadian governments, the most significant being the proximity of the United States. If Australia's prime geographic constant lies in its historic isolation, Canada's lies in the fact that it shares the North American continent with an immensely powerful neighbour. American example, especially American economic prosperity, 'much accentuated' feelings of dissatisfaction in Canada's regions, so Viscount Byng told the Duke of Devonshire in 1923; and in that view the governor general echoed official opinion back to Sir Edmund Head in 1857.22 Aware of the attraction of an American alternative, the governments of Canada were forced to respond. Thus the impetus to activity was external as well as internal. In itself that impetus does not explain either the nature of the response or its locus, which was as much provincial as it was federal in origin. Simply put, the question turns on the presence of active and innovative provincial governments: how, in modern vocabulary, to account for the phenomenon of province-building which reinforced the geographic and cultural regions of Canada and thereby the decentralization that characterizes Canadian federalism? This is a large topic which has received considerable scholarly attention,23 but among the influences seldom cited is the contribution of the Crown in promoting and

164 The Invisible Crown consolidating regional sentiment and identification. That influence has certainly been alluded to: A.R.M. Lower, for instance, once complained about the big provinces, by which he meant all provinces but the maritimes, behaving like imperial powers; Harold Innis called them feudalistic because they owned their natural resources, although government proprietorship was softened, said Frank Mackinnon, by the euphemism crown land, which implied 'a greater degree of public ownership/ But neither the extent nor the significance of the provincial Crown has been adequately recognized.24 In part this is because the Crown is usually subsumed under the concept of responsible government which, as Garth Stevenson has argued, 'was conducive to concentration and centralization of political power at both levels of the federal system/25 That is true, but this depiction can be misleading if 'responsible government' is limited to collective and ministerial responsibility only. For while this is accurate as far as it goes, it only goes so far. Most provinces for most of their history have been governed by their political executive in the absence of legislatures which meet but for short periods. The exercise of discretionary power based on delegated legislation has in consequence long been established in practice in the provinces, so much so that the public's conception of the legislature as an institution of governmental accountability is extremely weak. How weak, it is impossible to say; and the new role of legislatures in the constitutional amendment process since 1982 may have helped to rectify that image. If so, it would mark a return from what must be the nadir of provincial legislatures in the 1930s, when the Rowell-Sirois Commission was told by one organization in British Columbia: 'We incline to the belief that the legislative assembly of this province, and other provinces could, with advantage, be dispensed with/26 A satisfactory substitute the Commission heard (and not only in British Columbia) was an enhanced system of municipal government. Closer to the people than legislatures, municipal councils also met often, almost continuously. The place of municipalities in the operation of parliamentary federalism in Canada has tended to be overlooked because under the Constitution Act, 1867 (section 92:8) municipal institutions are a class of subject assigned exclusively to the province. Provinces, in turn, have used that power freely to impose local, regional, and metropolitan government reforms, with the result that municipal government is confirmed as a subordinate and confined jurisdiction. Yet in parts of the country, Ontario for example, the strength of commitment to maintaining municipal institutions in 1867 affected the original distribu-

Compound Monarchy and Canadian Federalism 165 tion of taxing power under the constitution and, of more direct relevance to the Crown, helped account for the Canadian disinclination to establish upper chambers to several of the legislatures. The lack of symmetry between the current structure of provincial legislatures and the Parliament of Canada warrants study for what it reveals about Canadian politics and for the contrast it presents to structures that prevail in most other federal systems.27 While neither the form nor the history of local self-government is consistent across the country (in Quebec its institutions grew slowly), it would be false to say of Canada, as Alastair Davidson has written of Australia, that 'no real democratic life emerged ... to threaten the ... primacy of the law and its agents/28 On the contrary, the impetus to self-government is an uninterrupted theme of Canadian politics, whether at the local or provincial level of administration. Governor General Charles Poulett Thomson (later Lord Sydenham) believed that 'the single most important administrative reform [he] introduced was a system of local government' for the United Cañadas, and the priority he awarded that enterprise was repeated some decades later in Saskatchewan which, two years after its creation, made the examination of local government structures the subject of its first royal commission.29 At a higher level, the achievement of selfgovernment meant the achievement of province-hood. It fuelled the ambitions of scores of territorial politicians and residents just as it had motivated the leaders of the United Cañadas to look to federation as a way out of the political impasse of the 1850s and 1860s.30 Thus the impetus to self-government has exerted a powerful stimulus to decentralize the Canadian federal system: to reject the dual mandate (which until 1873 allowed members to hold seats in both a provincial legislature and the Dominion Parliament) as, in Laurier's words, 'incompatible with ... the federal principle'; to accept only hesitantly the idea of a national franchise, as opposed to a provincially defined set of electoral qualifications; to work through constituency-based parties rather than to borrow the British model of centralized control; and to blunt the use of constitutional (but anti-federal) provisions such as reservation and disallowances.31 In these developments there was no doubt a large element of self-interest on the part of the advocates of self-government. But there was, as well, a strongly held conviction that the British system of parliamentary government implied, indeed required, local or provincial autonomy where conditions demanded it. Among those conditions the pre-eminent one was territory, and of that Canada had an immense supply. But more

166 The Invisible Crown important than just territory was the fact that areas of habitable settlement were discontinuous: islands, mountains, the vast wilderness of the Shield on the one hand, and what Adam Shortt and Arthur G. Doughty labelled the 'solid French wedge' on the other, which acted as barriers to communication and increased the pressure of immediate politics.32 Canada offered no middle ground, 'no valley of Democracy/ in A.G. Bailey's words, 'in which ineluctable changes of custom, temper, and ideal, could work their way on men, imperceptibly, shaping anew ... [Instead] the Canadian tendency ... towards consolidation, centralization, and a type of social and intellectual conservatism, was accentuated/33 No institution contributed more to consolidation and centralization within the regions than did the provincial Crown. The argument advanced earlier for seeing the Crown as the structuring principle of national government - the prerogative exercised on advice of the political executive, the reservoir of power delegated to it by Parliament, its monopoly over appropriation measures, the Crown's appointment power, and its authority over the organization of government - all these, once the Crown's priority of preference was confirmed in the case of the Liquidators of the Maritime Bank, applied with equal force to the provinces. Even more so, since the unicameral legislatures posed fewer constraints on governmental use of Crown power than did the bicameral Parliament. In this setting the institutional and historical distance between de jure and de facto provincial executives, never large to begin with, contracted with the passage of time. It was not supposed to be this way. The virtual assimilation of the Crown by the government of the day contradicted the intent and wording of the constitutional agreement of 1867. That inversion of performance and promise is too well known to require elaboration here. The lieutenant-governor was not only the chief executive officer of the province but also a federal officer, appointed by the governor-general-incouncil with discretionary power to reserve provincial legislation (that is, to leave decision on whether to grant assent to the federal government). Although criteria to guide the use of the power of reservation were the subject of dispute, and although the power itself was used with declining frequency, there was never any question but that lieutenantgovernors were perceived to be representatives of the centre even when they had strong local roots. Certainly they did not imitate the state governors of Australia who, one Commonwealth governor general (Munro Ferguson, later Lord Novar) complained, acted as 'champions and symbols of state rights.' It was for this reason that Munro Ferguson favoured

Compound Monarchy and Canadian Federalism 167 the Canadian system and recommended to the secretary of state 'a change to Lieu tenant-Governors/34 Yet in Canada these officers proved ineffectual in performing the duty Munro Ferguson assigned to them: provincial powers burgeoned in the late nineteenth and throughout most of the next century. Impotence in office - a product of federal selection and partisan lineage - compounded the problem; the Crown's representative could too easily be ignored by provincial politicians, a temptation which Saywell suggests grew stronger with the passing decades.35 Nor had they even the modest resources of the governor general to shore up their vulnerable position. There was no able confidant like Esmond Butler but, instead, usually a lone secretary who periodically might appeal to the governor general's secretariat for guidance because 'we wish to know with some assurance our place';36 no adviser save ministers whose counsel in periods of stress might be compromised by political loyalties;37 and no establishment like Rideau Hall, an institution with a history and a memory. Indeed, in Ontario, Saskatchewan, Alberta, Quebec, and New Brunswick government houses were closed as economy measures after 1930, or were destroyed by fire, their place taken by suburban houses, hotel suites, or condominiums. The governor general proved to be no help since, as Stursberg recounts, when Michener received requests, 'the junior (provincial) representative of the Crown was usually told to go through the proper channel of communication, which was the Secretary of State.'38 And the customary response from that quarter was to remind a lieutenantgovernor of his (or her) duty, which was 'to follow the decided and sustained advice of his responsible Advisers, unless he is prepared to assume the responsibility of demanding their resignation/ When in 1971 Michener was asked by Frank Moores, the leader of the Progressive Conservative party of Newfoundland, to intervene in the stalemate following that province's election, he received the same reply, this time from the then minister of justice, John Turner: 'It would not be proper for you ... to advise the Lieutenant Governor of Newfoundland with the purpose of terminating the present administration of that Province or of calling the Assembly into immediate session/39 He could, he was told, act only on the advice of his constitutional advisers. One step Michener did take to breach the isolation lieutenant-governors experienced was to initiate in 1973 what became the first of a series of two-day biennial meetings at Rideau Hall of the Crown's representatives. The lectures from constitutional authorities such as Eugene Forsey, as well as the discussions, were

168 The Invisible Crown beneficial to individuals who in the past had had to remedy their lack of knowledge of the job by asking the Queen's Printer in Ottawa to send any publications available on the Crown; they did not, however, alter the tilt in relations between the provincial Crown and its advisers.40 In fact, changes or contemplated changes in procedure and ceremony that touched the office of lieutenant-governor further undermined the Crown's theoretical pre-eminence in the provincial realm. That was Frank MacKinnon's assessment of Rene Lévesque's decision in 1969 to substitute 'an opening speech of his for that of the LieutenantGovernor'; the effect, he said, was to create 'a new and less democratic relationship between executive and Assembly.'41 Quebec may have gone further than some provinces in reducing 'the expense allowance of the lieutenant-governors and systematically eliminat[ing] references to the Crown scattered throughout the standing orders of the Assembly/ but it was not alone in depreciating the symbols and status of the Crown's representative.42 Quebec had at least articulated nationalist reasons for the position it took; the actions of other governments, who professed loyalty to the existing constitutional head of state, seemed cavalier, even careless, and contemptuous, if not of the office, then of history itself. For the Crown-in-legislature had been the keystone of the province-building enterprise. The edifice that protected provincial autonomy depended upon that structural element. Earlier governments in Quebec, in Saskatchewan, and elsewhere knew this and had incorporated the rites associated with parliamentary monarchy 'to affirm the status of the provincial government.'43 Except for proposals emanating from Quebec, the provincial Crown received scant attention in constitutional discussions between Ottawa and the provinces after the mid-1960s. Not perceived as an institution of federalism, as were the judiciary and the Senate, the provincial Crown arose for consideration only in peripheral respects: as part of the monarchy whose change the premiers unanimously opposed during discussions of Bill C-60 in 1978 and 1979; in provincial demands to excise from the constitution the lieutenant-governor's reservation power (along with removal of the disallowance power of the governor-general-incouncil); and in proposals to free the provinces 'to adapt the parliamentary system to their particular needs,' which according to the Quebec Liberal party amounted to provincial appointment of the lieutenantgovernor.44 This did not mean that the provincial Crown was irrelevant to federalism, for it would take on a wholly new order of importance if the provinces were to secure control over appointments. Any loosening

Compound Monarchy and Canadian Federalism 169 of Ottawa's grip here, Eugene Forsey had prophesied earlier, could lead to 'an elected President, who would then go swanking around the world and getting himself accepted as Head of the State of Quebec/45 What calls for notice, however, is how little constitutional advantage was seen to reside in changes to the provincial Crown. The provincial rights proponents of the nineteenth century, Mowat chief among them, had triumphed in securing recognition of the prerogative within the province, but its reach appeared to stop at the provincial boundary. In the Labour Conventions case (Attorney General of Canada v. Attorney General of Ontario [1937]), the Judicial Committee had placed Canada in a unique position among federations; the provinces, it said, had the exclusive right to implement treaties on subjects falling under section 92. Ever since, it has been possible to argue (although the Judicial Committee declined to do so in 1937) that the provinces should also have the capacity to conclude treaties in the same areas. Significantly, however, claims to 'an apportionment of the prerogative' (which is the constitutional basis of the external affairs power) have been infrequent and unconvincing.46 The reasons are not far to seek. Provinces may not legislate with extra-territorial effect, and because the distribution of executive power follows legislative authority, executive competency is correspondingly limited. This has not, it is true, prevented them in the past from successfully invoking claims to sovereign immunity in actions involving their agents in the United Kingdom, but that was before the passage of that country's State Immunity Act in 1978. Since then, British domestic law in regard to immunity of constituent territories of federal states conforms to international law which 'did not at any time confer such a privilege.'47 Thus the provincial Crown's influence on Canadian federalism originates from its activity within the ten different unit jurisdictions. The characteristics of the Canadian federation that make it an unattractive model to others explain the growth of provincial power at home. Central executive control, exercised for instance through reservation and disallowance, proved on the one hand as unappealing to provincial politicians as the assignment of residual power to Parliament did on the other. Both features share this in common: the overlap in jurisdiction they create uniformly gives priority to federal authorities. That preference is reinforced by the omission of the Constitutional Act, 1867, to provide for the representation of the provinces in the institutions of the central government. It quickly became a convention to draw cabinet members from the dif-

170 The Invisible Crown ferent provinces of the union, and to make appointments to the Supreme Court of Canada with similar attention to geography and in recognition of Canada's two legal traditions. The Senate, too, was composed of individuals from different sections of the country, but those sections were not the ones that mattered politically - the provinces, except for the two central provinces who individually comprised senatorial regions. What was missing was any institutional recognition of the provinces 'as structural elements of the national government.'48 No similar omissions occurred in the earlier federation of the United States of America or in the later Australian Commonwealth; indeed, James Madison observed that 'the threatening contest, in the Convention of 1787 ... turn[ed] ... on the rule by which the States should be represented and vote in the Government.'49 To label the Canadian system created in 1867 parliamentary federalism, then, was a misnomer: parliamentary it certainly was, but federal only in a distinct and, compared to the American prototype, attenuated form. In Canada federalism had been dispersed to the periphery, to the parts that comprised the whole. Perhaps that suited the country's unilinear geography, its isolated settlements strung out along a line hugging the American border. Perhaps, too, the allocation of exclusive powers between federal and provincial levels of government acknowledged the limitation which distance imposed on shared jurisdiction. Certainly subsequent failure to use section 94 to bring about uniformity of law relating to property and civil rights in the common law provinces confirmed the difficulties presented by strong local sentiment, even within English-speaking Canada. Whatever the explanation, the principle of the Canadian union at its outset was one of territorial not integral federalism. The distinction is discussed by the American political scientist, Daniel Elazar, who argues that federalism is the form of American government because 'it informs the American polity in every respect.' It is unconnected to questions about the size or diversity of the country, but originates in a characteristic he calls federalized individualism, which predates the Revolution and which suffuses American society. It explains both how it is organized and how it operates. Most importantly, integral federalism recognizes pluralism but it sees those strands interwoven into a societal whole.50 Pluralism existed in Canada too, but because of cultural fragmentation and geographic isolation. Self-government was the antidote to imperial rule, whether from London or, after 1867, from Ottawa;

Compound Monarchy and Canadian Federalism 171 decentralization was preferred to centralization. The principle of 'noncentralization/ which Elazar proposes as the inherent norm of the American constitution and politics, is absent from Canada's past or present.51 Canadians thought in terms of government rather than in terms of representation. By government they meant responsible government, whose categorical imperative required executive control of the legislature and with that, dominance of the Crown. One monopoly leads to another, and those who claim a monopoly of political power within their jurisdiction assert 'jurisdictional monopoly' in relations with others.52 Thus the 'governments and societies of Canadian federalism' pose a barrier to the type of integration described by Elazar, not because of the division of powers under the Canadian constitution, but because governments have assimilated the society they serve through a surfeit of power which went unrestrained until the advent of the Canadian Charter of Rights and Freedoms. With the powers they had received, for instance natural resources, and those they successfully claimed - possession of the prerogative provincial governments asserted hegemony over their territory. In time they became governments of first resort, pioneering in structures of economic development and experimenting in schemes of social policy, so much so that some of their innovations served as models for the federal government to initiate. Centrifugal politics, reflected in the rise of third parties and mesmeric provincial premiers, engendered a centripetal administrative response as Ottawa used its superior taxing capacity to counter the crises of depression, drought, and war. Provincial opposition to becoming 'mere annuitants of the central government' (the phrase was George Drew's in 1945) and provincial alarm, in the words of Maurice Duplessis in 1958, that 'the Homeric conflicts ... fought... for nearly a century, after 1760, to achieve responsible government and a parliamentary regime ... [might be] render[ed] useless/ demonstrated genuine concern at federal usurpation of their constitutional powers. By national standards, Ontario was wealthy and stood to lose under any federal redistribution scheme. Mitch Hepburn had articulated Ontario's dilemma in 1938 before the Rowell-Sirois Commission, noting that Ontario was asked to pay 'a Bill for Nova Scotia's stagnation, and ... another for [Manitoba's] expanding population);54 Quebec, on the other hand, had its traditional cultural reasons to be sensitive about growing federal power. But the two central provinces did not speak as a minority of two. Even provinces dependent upon federal transfers, and who acknowledged that dependency,

172 The Invisible Crown viewed what was happening as injurious to provincial self-government; at least one of their number, Newfoundland, had recently experienced at first hand the loss of self-government, a lesson and a moral Joey Smallwood shared with his fellow premiers.55 Yet the language used was misleading if it meant to imply that provincial governments were doing less because Parliament was doing more in response to an activated federal spending power. Leslie Frost admitted as much when he complained about federal fiscal policies forcing his provincial government to act Virtually, as banker ... guarantee[ing] to the extent of many hundreds of millions of dollars the borrowings of government subsidiaries such as Ontario Hydro, the Ontario Northland Railway, the Junior Farmer Establishment Loan Corporation, the Ontario Water Resources Commission and the Ontario Municipal Improvement Corporation/56 The last two authorities, for instance, had been created following the Second World War, along with a Pollution Control Board in 1953, to combat the problem of water pollution which resulted from Ontario's post-war industrial and population expansion. The environment, then and in later years, pressed the government to act largely through increased regulation in new fields of public policy. Though much older, Ontario Hydro was one of the country's largest businesses, and while legally independent of government, in practice, the premier admitted, 'it virtually has to be a Government Department.'57 And what was true for Ontario applied equally to other provinces, such as Saskatchewan, where the continent's first socialist government was busy creating executive agencies to control and diversify the economy and to advance its social program,58 and Alberta, where Ernest Manning saw 'a veritable revolution in public attitudes to social services' taking place.59 Conditional grants might distort the choices provinces made and they might enforce a uniformity their governments disliked, but they did not stifle activity. On the contrary, provincial executives were the beneficiaries of administrative federalism. There was a disparity between what the provinces were expected to do because they had the jurisdiction, and the limited resources the constitution gave them to meet those obligations. With few powers provided for in the constitution, Parliament could not legislate in these matters, and because the courts forbade the delegation of powers between legislative bodies, there was no possibility of transferring legislative competence from the poor to the rich level of government. But in the early 1950s the governments of Canada discovered a solution to the impasse, one which allowed for continued fed-

Compound Monarchy and Canadian Federalism 173 eral legislative activity but through an enhanced provincial executive. There was nothing unconstitutional, the Supreme Court of Canada said (in RE.L Potato Marketing Board v. H.B. Willis Inc. [1952]) in Parliament delegating power to a board established by the provincial executive. For a board or a commission or a corporation is 'an agent of the Crown or the Government... not an agent of Parliament or a provincial legislature/60 Nor, as one authority observed, was there anything 'new in the idea that an individual, a group of individuals or a corporation can receive powers from two different sources/61 This is the basis of the powers of the Royal Canadian Mounted Police in the eight provinces where it is also a provincial police force, and this is the basis of the extensive array of administrative policing discussed in a previous chapter.62 Thus, even during a period of high central activity when, in the Canadian metaphor, the pendulum of federalism had swung as far as it would go in that direction before beginning its long descent back to its pre-war decentralized position, the provinces did not languish. More to the point, the provincial executives did not languish; for it was their agencies, statutory no doubt but exercising subordinate power and with personnel appointed by the lieutenant-governor on the advice of the political executive, who stood to gain from federal-provincial cooperation. Contrary to the depiction of Canada as in a state of permanent jurisdictional warfare, administrative federalism through the institutions of the compound monarchy had demonstrated both the system's resilience and its capacity to adapt.

Conclusion

The Act of Union ... imposes the duty and confers upon you the right of reducing to practice the system of Government which it has called into existence, of consolidating its institutions, harmonizing its administrative details, and of making such legislative provisions as will secure to a constitution, in some respects novel, a full, fair, and unprejudiced trial/ Viscount Mo nek, Speech from the Throne, 7 November 1867

In 1867 the novelty of Canada's constitution lay in its union of parliamentary government and federalism. Unique through the remaining decades of the nineteenth century, Canada eventually shared its distinctive constitutional arrangement, first with Australia, and, then, much later, with other Commonwealth countries such as India. Yet while these principles of government might be shared, their application varied extensively. For example, Australia used the ingredients to create a polity Campbell Sharman has labelled a compound republic. Australia was not alone in being inventive, however. At the core of every country's constitution lie understandings and agreements that confound the easy adaptation of abstract principle. Speaking of Canada's federal system, Eugene Forsey dismissed 'all references to other federations or to the nature of federalism in general as beside the point. The Canadian federation is in some respects sui generis, and ... somebody else's efforts to force it into an American, Australian, Swiss or logical straight-jacket are just tiresome: bad law, bad constitutionalism, bad political science/1 The same was true of the operation of parliamentary government, where each system's constitutional peculiarities made generalization difficult if

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not dangerous: 'You cannot rely too much on either a PEI or Newfoundland precedent/ Forsey told the Senate Special Committee on the Constitution in 1978, echoing a sentiment expressed earlier in the century by Sir Joseph Pope, who once observed that 'Australian precedent [is] no precedent Canada was unique among the Anglo-American democracies not only for its original political experimentation but for its cultural complexion. In some countries, again Australia for example, land divides but culture unites. This was never the case in Canada, whose English and French roots parliamentary government and federalism acknowledged from the very beginning. But because there was no natural cohesion of culture, institutions were given the added task of promoting unity. In this capacity the Crown occupied a privileged position, for it was when acting as unifier that the Crown's symbolic duties served their most useful purpose. In the early 1970s W.L. Morton undertook to compile a collection of papers on the monarchy (a publication which, unfortunately, never appeared). While applauding the enterprise, Esmond Butler reminded the historian not to forget to mention the contribution governors general had made to good causes, among which was fostering unity between the two founding races. 'Long before bilingualism and biculturalism became a subject of national concern/ Butler wrote, 'Governors General were reminding Canadians of their dual heritage/3 There was no shortage of examples that Butler could (but did not) cite: Aberdeen's intervention in the Manitoba School Question, when he encouraged (warned?) his ministers to avoid a partisan response and instead invite the opposition to join in negotiations with Manitoba; or Lord Grey's initiative to celebrate Quebec City's tercentenary in 1908, and so transcend the country's endemic parochialism (its 'pestilent crowd of village pumps' was the governor general's description) and infuse a 'National Soul' in 'every child in B.C. and in the Western Provinces.'4 Closer to home, and in his own time, Butler might have cited Roland Michener's insistence that 'as he [was] English speaking, as [was] the Secretary ... he should have a senior adviser of French Canadian origin [as assistant secretary].'5 Powerful though this integrative conception of the Crown may be, the language employed to describe it fails, say some observers, to emphasize the institution's true significance. In the province of Quebec, according to Jacques Monet, 'La monarchic puise dans un trésor de valeurs qui débordent les limites du nationalisme.' Its stature derives from the fact

176 The Invisible Crown that, unlike any other Canadian institution, 'la Couronne a ratifié les droits du Canada franjáis/ 6 Yet English-speaking Canadians never quite see it this way. They use the word symbol but they mean something rather different: 'un instrument constitutionnel/ This was the substance of Monet's criticism of The Crown in Canada, by Frank MacKinnon: its depiction of the purposes and operation of the monarchy was, he said, 'trop rationnel.' Because any attempt at explanation would be open to the same criticism, this attribution might be dismissed. But it was not illogical. Monet's critique serves as a reminder that there is more than one way of looking at the Crown. More to the point, the approach he found suspect was that favoured by a succession of politicians, of whom Mackenzie King and Trudeau were only the most prominent, who used the Crown in the service of some other purpose: Dominion autonomy in King's case, national unity in Trudeau's. It is legitimate to ask, as Monet implicitly does of this utilitarian approach, whether the Crown can remain a symbol when it is consciously used as one. After the Parti Québécois victory in 1976, the answer to that question held more than philosophical interest. Then the governor general found himself in the awkward position of having to decide how far he should go in promoting a unity he was already supposed to embody.7 By definition, a study of 'the invisible crown' devotes little attention to the Crown-as-symbol. Its concern lies elsewhere, with the influence of the Crown as an organizing principle of government. This is not to say that the question of symbolism is unimportant, or that it has no immediate significance. In fact it does, as current debate in Australia over proposals to make that country a republic by the year 2001 testify. There the terms of reference of the Federal Advisory Committee required it to propose 'the minimum constitutional changes necessary to achieve a viable Federal Republic,' and the Committee's report states that 'all that is required to convert Australia into a republic ... would [be to] substitute an Australian head of state for the monarch and the Governor General, with consequential provisions being made for the new head of state's appointment, removal and powers.'8 Critics of this so-called minimalist approach argue that there is more to a republican conversion than changing the symbols associated with the head of state's office. The substance of that claim is not material to this discussion, although earlier chapters of this book lend it support. What is striking about the debate in Australia, however, is the potency the Crown-as-symbol holds for republican advocates. Part of the explanation, it is said, lies in the

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continuing perception of the monarchy in Australia as a British institution - a colonial remnant. The contrast with Canada is marked and suggests that in this regard the instrumental approach, which sought to fit the Crown to Canada's dual heritage, did at least help distance it from its British origins. More than that, the Australian political scientist, John Uhr, has described the Australian republican movement as a post-colonial phenomenon whose 'real attraction ... is its community orientation.'9 This is an intriguing hypothesis for Canadians interested in understanding their own country's republican apathy (Quebec separatists are a different matter, since in this instance conversion to a republic, which it should be noted is not a necessary consequence of secession in any case, is a second-order priority to disengagement from the larger polity). Now, in addition to the customary explanations for weak republican sentiment in Canada (the Loyalists and a desire to be constitutionally distinct from the United States) must be added another: a sense of community sufficiently strong that it need not look to republicanism for authentication. For a country perennially in search of an identity, this is a conclusion worth exploring. That investigation must be undertaken on another occasion. When it is, though, it should begin by acknowledging a cardinal contrast between Australia and Canada. It can be said of the creators of the Commonwealth of Australia, as Samuel Beer has said of the founding fathers of the United States, that 'their federalism presupposed their nationalism/10 That was not true of the Fathers of Confederation; on the contrary, their constitution recognized and entrenched plural communities, through guarantees to linguistic and denominational minorities (sections 133 and 93). Not only that, section 93 confers on the governorgeneral-in-council the role of protector of denominational rights in regard to education. Similarly, there is a special relationship between the Crown and Canada's aboriginal peoples. 'Canadian Indian Communities,' John Whyte has said, 'understand their political commitment and fidelity to the Queen and, conversely, the obligations of protection and support that lie against the Queen.'11 Thus surfaces can be misleading: the monarchical federations of Australia and Canada share similar characteristics - parliamentary institutions and a federal division of powers - but that common experience disguises different senses of community in each country. For instance, according to the advocates of Australian republicanism, the 'elements of kinship, race, history and culture which Australia shared with Britain' have atrophied.12 The same might be said of those elements as they exist in Canada. Yet they were never the sum

178 The Invisible Crown of the relationship; the Crown in Canada was neither so uncomplicated nor its symbolism so undifferentiated as in Australia.13 When emotion ran high, as during the first tour of a reigning sovereign in 1939, there was still a purpose behind it. Shuldman Redfern, who as the governor general's secretary took credit for promoting the royal tour, noted on its eve that while 'in the United Kingdom the Crown is ... a living symbol... In Canada it is ... one of the most powerful influences for integrating the political and constitutional life of the country/14 Even the most loyal agreed with him. The Leader-Post of Regina was not alone in treating the King and Queen almost as deities, but it was also pragmatic in its evaluation of their visit: We think it may be said that there will be a new tie of unity among persons of all blood because they have looked upon the representatives of the Crown and have paid voluntary tribute to those who symbolize the long and glorious tradition of representative government, free speech, equality of man, the right of the individual to control the state.15

As an aside, it should be noted that Redfern passionately believed in the integrative capacity of personal monarchy. Forty years after the royal tour of 1939, at the same time the Trudeau government was sponsoring its Constitutional Amendment Bill, which would have constituted 'a Governor General with full status and powers in his or her own right rather than merely in the capacity of a representative of the Sovereign/ the eighty-two-year-old Red fern was advancing a very different monarchical scheme.16 During the Second World War he had begun to argue for a peripatetic monarch who would spend part of each year in his or her different realms. The equality of status recognized in the Statute of Westminster demanded, he said, that the dominions be placed in the same position as Great Britain in their relations with the monarch. 'Greater emphasis to the King and less to the King's Representative' would necessarily result. Indeed, he believed, the governor general was a relic who could be replaced by a Council of State (composed of senior justices) which would act in the monarch's absence. (Equality of status also meant, he said, that Canada should end appeals to the Judicial Committee of the Privy Council and adopt its own procedure for amending the Constitution Act, 1867.) Although the Earl of Athlone (1940-6) disavowed responsibility for the scheme, Redfern pressed his case through an article in the Spectator in 1946, in a letter to Louis St Laurent in 1950 (prompted by the constitutional changes of the previous

Conclusion 179 year), and in a handwritten note he attached in 1979 to a copy of his original wartime memorandum. Redfern's proposal, which amounted to domesticating the monarch rather than aggrandizing the governor general, has never attracted strong support. Nor is it the purpose of this discussion to weigh its merits or those of alternative reforms. Rather the scheme is cited for the different light it throws on the subject of the Crown. Redfern recognized that not all senses of monarchy are necessarily the same sense. In other words, in his mind there was no inevitability to its evolution - for instance in the direction of Canadianizing the Crown or of abolishing it in Australia. Like Butler, Redfern saw the institution as malleable and its symbolism variable according to the different interests being served. In this respect the Crown in Canada is unlike the Crown in Australia and that difference helps explain the lack of interest Canadians have shown in an alternative constitutional order. Casting debate about the Crown in terms of symbols diverts attention from the pervasive influence it exerts on the institutions and practices of government. More particularly, the language of symbols disguises the practical contribution the Crown makes to the primary feature of Canadian government - executive dominance. To revert once again to Bagehofs dichotomy of efficient and dignified parts of the constitution, the monarch is the pre-eminent example of a dignified element, personifying the state and thereby making it intelligible, but for all the pomp and ceremony remaining essentially a passive figure who mirrors, reflects, or represents. This is true despite the centrality of the office to governing - everything is done in its name - because everything is done on advice of ministers. Yet the disjunction between actual and symbolic acts, which the language of constitutional monarchy conceals, serves to shield from view the real strength of the political executive. It also explains the paradox Gladstone once noted about the powers of the prime minister: 'Nowhere else in the world does so great a substance cast so small a shadow/17 As earlier chapters have demonstrated, the powers of the prime minister are great because the prerogative powers he or she commands extend into every branch of government. Among the most obvious are those of appointment - to the senior ranks of the bureaucracy, the higher reaches of Parliament, and to positions on the country's superior courts. In all of these cases the prime minister may seek advice, but in none is he obliged to share his power. Indeed, it is open to question whether the prime minister, or the political executive generally, can share any

180 The Invisible Crown responsibility for whose exercise he or they are answerable to Parliament. Prime ministerial privilege in the matter of appointments is matched by comparable powers over finance. The Privy Council Office submission to the Royal Commission on Financial Management and Accountability (the Lambert Commission) described the prime minister's concern with finance as primordial, and so it is, as witness the right of the prime minister to intervene in the actions of the Treasury Board, a committee of the Privy Council.18 Financial control is also the basis for 'the maintenance of particular management standards/ and thus it reinforces the executive's hold on the bureaucracy. When to these powers is added the practice that the prime minister signs draft bills before they are introduced in Parliament, then without doubt his is the decisive voice not only, as the submission says, 'in determining the government's legislative program' but in administering the policies those programs create. Of course, none of these powers is new; it is the enhanced functions of government in the twentieth century which have magnified their import. Once the King made laws; now the ministers do. And in addition to authority inherent in the prerogative, many of these laws originate in power delegated by Parliament to the Crown's advisers. Administration may be the 'secret garden of the Crown/ but its influence is far-reaching and public, as a succession of reports by Parliament's Standing Joint Committee on Regulations and Other Statutory Instruments bears witness. There are systems of government where there is no Crown or any analogue to it, the United States for example. These are systems where sovereignty resides with the citizen, and they are called republics. There are other republics where sovereignty is also said to derive from the people and which often are (or, in Australia's case, may become) lapsed monarchies. Here an incipient republicanism eventually overtakes the most visible monarchical form, the head of state. Three of six overseas case studies commissioned by Australia's Federal Advisory Committee fit this description (Ireland, Mauritius, and Trinidad and Tobago). India, though never technically a monarchy, is presented as a fourth example.19 From the point of view of the present argument, this latter variant of republicanism (the Federal Advisory Committee labels it a non-executive presidency) is incomplete because the fate of the Crown goes largely unexplored. The author of the Trinidad and Tobago study, Sir Ellis Clarke (a former governor general and, then, that republic's first president), says only that 'whatever prerogative or privilege was vested in

Conclusion 181 Her Majesty the Queen or the Crown in respect of Trinidad and Tobago became vested in the State and the President was empowered to act in respect thereto/20 Another study arising out of the Australian debate observes that 'disclaimer^] ... notwithstanding, there are overtones in some [republics] of the traditional role of the Crown/21 Codification of the head of state's powers, which the Federal Advisory Committee in Australia believed necessary to 'maintain the present balance between the Government and the head of state/ appears to be an inadequate response to the pervasive power of the political executive described in the preceding pages.22 Arguably, a higher law, such as the Canadian Charter of Rights and Freedoms, imposes a greater restraint on those powers than a conversion to a non-executive presidential republic. But this is not a study of republicanism in Australia, or elsewhere, nor is it a study of the institutions of Australian government, which are significantly different from Canada's arrangement of powers. Therefore, the implications of a transition to republican status in Australia cannot be assumed to reveal the consequences of a similar transition in Canada. None the less, the emphasis on monarchical symbolism overshadows what from the perspective of this book is the Crown's most crucial characteristic - the influence it has on the organization of political power. In contrast to the passive depiction of the Crown-as-symbol, these chapters have emphasized its animating force in Canadian government. To summon Bagehot's terminology for the last time, while corrupting his usage, the Crown is dignified and efficient. To view it solely as an office - the Queen, governor general, or lieutenant-governor - is only to half see its place in the operation of federal and provincial life. Less than a partial view, that perspective actually distorts, because it depreciates the Crown's pervasive influence on the sequence and form of public activity in every area of government. To say, for instance, as some socialist supporters did in the early days of the CCF government in Saskatchewan, that the office of lieutenantgovernor was obsolete was scarcely accurate.23 The Douglas government itself might dispute the need for the dignified symbols of the Crown in Saskatchewan, it might even close government house, but it did not shrink from employing the latent power of the Crown in regulatory and business activity in a manner until then unparalleled in a Canadian province. And it was this breadth of government invention that most disturbed its opponents.24 Without the resources of the Crown, the CCF could never have gone so far or so fast. Thus the Crown has to be brought back into the study of government,

182 The Invisible Crown not as a symbol but because it determines the way Canadians govern themselves. In this context the act of governing must be given wide meaning. For in addition to its structuring impact on relationships between executive, legislature, and judiciary, legal principles associated with the Crown have directed national development too. Nowhere is this more evident than in 'the place of land' (the phrase is Innis's) in Canada's history.25 In a recent study of Upper Canadian and, later, Ontario politics, S.J.R. Noel traces the immense patronage power colonial administrators possessed to the 'truly enormous quantities of land' they dispensed for a few brief decades. He reminds readers that the effect of that beneficence extended far beyond the recipients of the land; it moulded the colony's commercial life and its society, not least because the prospect as well as the acquisition of land discouraged mobility.'26 But if land and its alienation shaped the original colonies of Confederation (and all evidence suggests that the small world Noel describes in Upper Canada was replicated in the maritime colonies), how much more did it determine the future of the federation after 1867. That story is well told by Chester Martin in 'Dominion Lands' Policy: the surrender by the Hudson's Bay Company of Rupert's Land to the Crown and the transfer of that territory to Canada in 1870; the retention, in the Manitoba Act of the same year, of all ungranted land by the Government of Canada 'for the purposes of the Dominion' (and the repetition of that formula at the creation of the provinces of Alberta and Saskatchewan in 1905); and, finally, the transfer of the natural resources to the three provinces in 1930.27 The details are familiar because the prairie grievances they spawned (over unequal treatment) became permanent. Still, they should not be allowed to divert attention from the fundamental consequence of the transfer: it made Canada, alone of Anglo-American democracies, says Martin, 'a veritable empire in its own right/ Although national policies for the West (for example, railways and homesteads) were modelled on those of the United States, Crown land produced a very unAmerican result - paternalistic government and paternalistic policies which prevailed even after the provinces secured control of the land and natural resources. Nor was the principle of Crown ownership disputed by those most subject to the paternalism. The prairie provinces long argued that it was 'the established policy of the Empire to appropriate the land revenue of a colony to the benefit of its inhabitants/ a proposition the Judicial Committee of the Privy Council found 'not merely improbable, but ... incredible' had it been applied to the North West Territories in 1870.28

Conclusion 183 The new provinces wanted to be treated like the other provinces, and that meant their unalienated land and resources should be vested in the provincial rather than the federal Crown. With the transfer of 1930, the sum total of Crown ownership did not change, but the respective portions held in right of the provinces and in right of Canada did. The principle remains an important feature of Canadian politics and a fact of Canadian economic life. It raises the temperature of federal-province relations, as demonstrated in the conflicts of the 1970s between the western provinces and Ottawa over resource taxation. More generally, as Mark Sproule-Jones has demonstrated in his book on parliamentary federalism and public policy, it explains why in a resource-based economy such as Canada's 'the rules for commerce remain "politicized/7/29 The reach of the Crown in policy is long and complex, but in the case of land its source may be traced to common law principles rooted in feudal times. With regard to social policies, the genealogy is less precise: for instance, some theorists suggest that the continuities of kingship produced a gentleness and concern for the well-being of others that contrasts with the boisterous self-assertiveness and individualism of the citizenry of republican regimes. Long accustomed to the chain of beneficence and its many ramifications, publics under monarchies still conceive of society as a fund whose bounty is dispensed by the Crown.30

To determine the real truth of that claim is not possible in the context of this study, and may not be possible at all; how is concern to be quantified, measured, and compared? Yet the sentiment it advances is clear enough to students of Canadian history and politics, be it expressed as good government, which could mean policies for 'the purposes of the Dominion/ or as conservative values that embraced 'public order and tradition' or a 'public conception of virtue/31 The idea of government as a benevolent agency or of society as a community is, some say, the product, in part at least, of the personal and humanizing influence of the Crown. That is a central theme in MacKinnon's The Crown in Canada, and it makes that study something more than simply an exploration of 'un instrument constitutionel/32 The theme originates in medieval rather than modern political theory, most directly in the concept of 'the king's two bodies,' and specifically in the body politic, as opposed to the natural or private body of the king. The body politic took form, said Henry VIII, 'in the time of Parliament,

184 The Invisible Crown wherein we as head and you as members are conjoined/ The emphasis on the union of sovereign and Parliament is important, according to the authority who has studied the concept, for it distinguishes the Crown from 'the fictitious person which the continental "State" became during and after the sixteenth century/33 On the contrary, because the interests of the Crown were those of the community of the realm, monarchy was embedded in society, with duties and obligations as well as powers and prerogatives. This was the lineage of the symbolic good causes Butler said governors general had performed. The theistic view of the Crown at the centre of the political universe of power emanating from above and flowing down - originates in this concept of the body politic. It explains the Crown's pervasive influence discussed in preceding chapters, and at the same time it begins to explain the opposition periodically expressed against that influence. The apparatus of direct democracy - initiative, referendum and recall - and its proponents - the Progressive party at one time and the Reform party today - challenge the Crown's powers over appointments, spending and policy, while they dissent from theories of representation that allow room for public participation only at election time. If the Crown is brought back into the study of government, then any serious rendering of the concept must give prominence to its provincial manifestation. For if it is true that the Crown organizes political life, then it does so at both levels of government. As a result, executive dominance is as pervasive in provincial as it is in federal politics, and for this dualism the contribution of a divisible Crown has to be acknowledged. In fact, a research study on The Formal Executive/ completed for the Pépin-Robarts Task Force on Canadian Unity in 1978, did acknowledge the essential role the provincial Crown had played in converting the highly centralized constitution originally designed by the Fathers of Confederation into the more balanced and decentralized system of today, a system in which the provinces are not inferior, subordinate governments but instead exercise de facto coordinate sovereignty with that of the federal government.34

That recognition should have gone further, however. Canadian federalism is a world of compound monarchies because the Crown intensified the natural divisions of Canada by enhancing the autonomy of unit governments defined by those divisions. More than in other federations, the Canadian provinces have served as first-resort institutions for social

Conclusion 185 and economic experiments. Scholars have long recognized the imperative for governmental action implicit in Canada's harsh geography, small population, and limited domestic capital. With notable exceptions, however, few give sufficient attention to the reasons for provincial initiatives, among which this study numbers the Crown of first importance. But if the Crown has empowered government, it has impoverished political theory, especially the theory of federalism. In his study of Nova Scotia's relations with Ottawa after 1867, K.C. Pryke noted the failure of the province's Assembly to develop 'a reasoned theory of federalprovincial relations/ Its place was taken by the call for better terms/35 Nova Scotia was not alone in its devotion to an economic calculus, and those provinces which displayed less pecuniary concerns were no less protective of their culture or autonomy. Rarely, then, was federalism in the abstract ever at issue, for there was never time to contemplate what the doctrine meant. Even in periods of intergovernmental harmony, tension between the Crowns served as a reminder of the institution's pre-eminence in Canadian politics.

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Notes

Abbreviations AJPS AL] BP CßR CHR CfEPS CJPS CLJ CPA CO DA DLJ DP DR EP FP JCS McGLJ MLR NLA OLR PL QQ RGG SAB

Australian Journal of Political Science Australian Law Journal Esmond Butler Papers Canadian Bar Review Ca nadia n His to rica I Review Canadian Journal of Economics and Political Science Canadian Journal of Political Science Cambridge Law Journal Canadian Public Administration Colonial Office Diefenbaker Archives Dalhousie Law Journal John G. Diefenbaker Papers Dalhousie Review Willard Estey Papers Eugene Forsey Papers Journal of Canadian Studies McGill Law Journal Modern Law Review National Library of Australia Ottawa Law Review Public Law Queen's Quarterly Records of the Governor General's Office Saskatchewan Archives Board

188 Notes TRSC UTLJ WALK WPQ

Transactions of the Royal Society of Canada University of Toronto Law Journal Western Australia Law Review Western Political Quarterly

All material unless otherwise noted is held by the National Archives of Canada. Special Note Between 1936 and 1945 Sir Arthur Shuldham Redfern, KCVO (1939), CMC (1945), served as secretary to the governor general. During this time he composed a series of memoranda on Canadian politics from the perspective of the Crown's representative. For purposes of citation, these are designated in the notes as Redfern memo no. 1, etc. 1 'Strictly Confidential,' [the Governor General and the Canadian government] 2 The Status of Canada/ 6 p. 3 'Strictly Private and Confidential, Memorandum A Stocktaking and a Policy,' 7 p. 4 The Crown and Canada/ 9 p. 5 'Government House and The War/ 3 p. 6 'Record of Interview. Prime Minister of Canada/ 5 p. 7 'Duties and Functions of the Governor General' 8 'Memorandum [British Commonwealth Air Training Scheme]/ 3 p. 9 'Record of Interview with A.D.P. Heeney, Clerk of the Privy Council' 10 'Note' [compares Sovereign in England to Governor General in Canada]/ 4 p. 11 'Strictly Confidential, Memorandum, The Governor Generalship of Canada/ 7 p. 12 The Canadian Army Reinforcement Crisis, 1944, Strictly Confidential/ 3 p. 13 The Governor-Generalship of Canada/ 16 p. 14 The Representation of the Crown in Canada/ 19 p. 15 The Governor-Generalship of Canada/ 16 p.

6 October 1936 20 November 1936 4 January 1938 12 April 1939 7 September 1939 12 October 1939 December 1939 18 December 1939 26 November 1940 November 1943 September 1944 8 December 1944 March 1945 25 June 1945 17 May 1946

Nos. 12 and 14 are in Redfern Papers, A1412; the other memoranda are in RGG 1850A and 1850B.

Notes to pages xvi-8 189 Introduction 1 DR, 30 (1951), 346-51, and ibid., 29 (1949), 153-6. Chapter 1: The Monarchical Idea 1 K.C. Wheare, 'Walter Bagehot/ Lectures on a Master Mind, Proceedings of the British Academy 60 (1974), (London: Oxford University Press, 1975), 195. 2 E.E. Schattsneider, Party Government (New York: Holt, Rinehart and Winston, 1942), 132. 3 The literature on Australian republicanism is extensive. A sample of the scholarly, along with a useful bibliography, is George Winterton, Monarchy to Republic: Australian Republican Government (Melbourne: Oxford University Press, 1986); serious though less academic is Geoffrey Dutton, ed., Republican Australia? (Melbourne: Sun Books, 1977). See also Australia, An Australian Republic: The Options/The Appendices, 2 vols. (Canberra: Australian Government Publishing Service, 1993). 4 David Cannadine, The Context, Performance and Meaning of Ritual: The British Monarchy and the "Invention of Tradition," c. 1820-1877,' in Eric Hobsbawn and Terence Ranger, eds., The Invention of Tradition (Cambridge: Cambridge University Press, 1983), 101-64. 5 Lewis B. Namier, 'Monarchy and the Party System' (the Romanes Lecture 15 May 1952), (Oxford: Clarendon Press, 1952), 3. 6 Ibid., 4. 7 A classic statement of the bureaucratic-congressional relationship is Morton Grodzins, 'American Political Parties and the American System/ WPQ 13, no. 4 (December 1960), 974-8. 8 Edwin Black, Divided Loyalties: Canadian Concepts of Federalism (Montreal: McGill-Queen's University Press, 1971), 121. 9 See debate on motion deploring Government of Canada's action re: seabed resources in Canada, Senate Debates, 25 May 1982,4184-9 and 27 May 1982, 4210-21. 10 See, for example, Alan C. Cairns, The Judicial Committee and Its Critics/ CJPS 4, no. 3 (1971), 301-45. 11 Great Britain, 70 House of Lords Debates, 55. 630 and 765, quoted in K.C. Wheare, The Statute of Westminster and Dominion Status, 4th ed. (Oxford: Oxford University Press, 1949), 98. 12 Namier,'Monarchy/9. 13 W.L. Morton, The Meaning of Monarchy in Confederation/ TRSC I, series 4 (June 1963), 272. Lord Dufferin, newly arrived in 1872, saw his office as 'the

190 Notes to pages 9-12

14 15 16 17 18 19 20 21

22

23 24

25 26 27

28

one authority common to ... all [parts of the country] and to the mother country/ Dufferin to Sir John A. Macdonald, 24 July 1872, in Sir Joseph Pope, Correspondence of John A. Macdonald: Selections from the Correspondence of the Rt. Hon. Sir John Alexander Macdonald, G.C.B. (Toronto: Oxford University Press, 19121]), 172-4 (hereafter Pope, Correspondence ...). This argument is introduced in David E. Smith, 'Empire, Crown and Canadian Federalism/ CJPS 24, no. 3 (September 1991), 451-73. Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature 1791-1899 (Toronto: University of Toronto Press, 1986), 247. Liquidators of the Maritime Bank v. Receiver General of New Brunswick (1892) AC 437. John Farthing, Freedom Wears a Crown (Toronto: Kingswood House, 1957), 129. Philip Resnick, Masks of Proteus: Reflections on the State (Montreal: McGillQueen's University Press, 1990), 82. Parliamentary Debates on Confederation of the British North American Provinces (Quebec, 1865, reprinted Ottawa: King's Printer, 1951), 34. Northrop Frye, The Bush Garden: Essays in the Canadian Imagination (Toronto: Anansi, 1971), ii. Peter S. Onuf, The Origins of the federal Republic: Jurisdictional Controversies in the United States, 1775-1789 (Philadelphia: University of Pennsylvania Press, 1983), 32. In St. Catherine's Milling and Lumber Co. v. The Queen (1888), 14 AC 46, cited in Joseph Schull, Edward Blake: Leader in Exile, 1881-1912 (Toronto: Macmillan, 1976), 106. W.L. Morton, The Extension of the Franchise in Canada: A Study in Democracy/ Canadian Historical Association Report (1943), 79. Campbell Sharman, 'Australia as a Compound Republic/ Politics 25, no. 1 (May 1990), 1-5. See Vincent Ostrom, The Political Theory of a Compound Republic: Designing the American Experiment, 2nd ed. (Lincoln, Neb.: University of Nebraska Press, 1987). Mark Sproule-Jones, The Enduring Colony?: Political Institutions and Political Science in Canada/ Publius 14 (Winter 1984), 93-108. Alastair Davidson, The Invisible State: The Formation of the Australian State, 1788-1901 (Cambridge: Cambridge University Press, 1991). L.F. Crisp, The Unrelenting Penance of Federalist Isaac Isaacs, 1897-1947/ in Crisp, Federation Fathers, ed. John Hart (Melbourne: University of Melbourne Press, 1990), 201. Bertrand Badie and Pierre Birnbaum, The Sociology of the State, trans. Arthur Goldhammer (Chicago: University of Chicago Press, 1983), ch. 8.

Notes to pages 13-16

191

29 Liquidators (1892), AC 437 and Attorney General for Ontario v. Attorney General for Canada, (1896), AC 348. 30 A.B. Piddington (NSW): '[A Canadian Senator] represents, both in theory and fact, the nation and the nation only/ 'Federation Prophets without Honour: A.B. Piddington, Tom Price, H.B. Higgins/ in Crisp, Federation Fathers, 132; George Richard Dibbs (NSW) wanted 'a dominant central authority for Australia/ and thought 'Canadian-type Federation' did not go far enough, 'a second best/ 'George Richard Dibbs, 1834-1904, Premier of New South Wales, Prophet of Unification/ ibid., 68; Charles Cameron Kingston (South Australia): 'Kingston ... saw the Canadian Parliament as "a Parliament on the lines of which an Australian Parliament might be shaped/7' 'Charles Cameron Kingston: Radical Federationist/ in ibid., 289-90. 31 David J. Bercuson and Barry Cooper, 'From Constitutional Monarchy to Quasi Republic: The Evolution of Liberal Democracy in Canada/ in Janet Ajzenstat, ed., Canadian Constitutionalism, 1791-1991 (Ottawa: Canadian Study of Parliament Group, 19[92]), 21, 24, and 27. The same theme but less categorical in its conclusion is Peter Russell, Constitutional Odyssey: Can Canadians Be a Sovereign People? (Toronto: University of Toronto Press, 1992). 32 'Canada: Notes on Two Ideas of Nation in Confederation/ Journal of Contemporary History 6, no. 1 (1971), 176. 33 See Malcolm Alexander, 'State/Provincial Governments and Federal Power: The Politics of National Development/ in Bruce Hodgins, John Eddy, Shelagh D. Grant, and James Struthers, eds., Federalism in Canada and Australia: Historical Perspectives, 1920-88 (Peterborough, Ont: Frost Centre for Canadian Heritage and Development Studies, 1989), 86-103; and Ben W. Boer and Donna Craig, 'Federalism and Environmental Law in Australia and Canada/ in ibid., 313. 34 'Presentation by the Native Sons of Canada/ in Canada, Royal Commission on Dominion-Provincial Relations, Report of Proceedings, 8 December 1937, 1158,1161. 35 See, however, R. Kenneth Carty and W. Peter Ward, The Making of a Canadian Political Community/ in Carty and Ward, eds., National Politics and Community in Canada (Vancouver: University of British Columbia, 1986), 65-79; and William Kaplan, ed., Belonging: The Meaning and Future of Canadian Citizenship (Montreal: McGill-Queen's University Press, 1993). 36 Macdonald to Baron Knutsford, 18 July 1889, in Pope, Correspondence ..., 449-51. 37 See Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics (Toronto: Oxford University Press, 1991). 38 Norman Ward, The Public Purse: A Study in Canadian Democracy (Toronto:

192 Notes to pages 16-18

39 40

41 42

43

44 45 46

47

University of Toronto Press, 1951); Norman Ward, Tlie Canadian House of Commons: Representation, 2nd ed., (Toronto: University of Toronto Press, 1963); J.E. Hodgetts, Pioneer Public Service: An Administrative History of the United Cañadas, 1841-1867 (Toronto: University of Toronto Press, 1955); R. MacGregor Dawson, The Civil Service of Canada (Oxford: Oxford University Press, 1929). This phrase is from Colin Rhys Lowell, English Constitutional and Legal History (New York: Oxford University Press, 1962), 520. But see Frank MacKinnon, The Crown in Canada (Calgary: Glenbow-Alberta Institute, McClelland and Stewart West, 1977). Principally based on secondary sources and interviews, this is a valuable work of interpretation. R. MacGregor Dawson, Constitutional Issues in Canada, 1900-1931 (London: Oxford University Press, 1933). On the Charter and the Accord, see Alan Cairns, The Charter, Interest Groups, Executive Federalism, and Constitutional Reform/ in David E. Smith, John C. Courtney, and Peter MacKinnon, eds., After Meech Lake: Lessons for the Future (Saskatoon: Fifth House Publishers, 1991); on the Bill of Rights, see Robert Belliveau, 'Mr Diefenbaker, Parliamentary Democracy and the Canadian Bill of Rights' (MA thesis, University of Saskatchewan, 1992). Smiley to Forsey, 4 October 1983, in National Archives of Canada, MG30 A25, Papers of Eugene Alfred Forsey (file 61/32 Smiley, Don, correspondence 1982-87) (hereafter FP). FP, Sandwell to Forsey, 21 June 1951 (file 25/18, 'King, W.L. Mackenzie and the Constitution - Paper and Related Correspondence, 1951-52'). Michael Foley, The Silence of Constitutions: Gaps, 'Abeyances' and Political Temperment in the Maintenance of Government (London: Routledge, 1989), 85. Walter Bagehot, The English Constitution (London: Oxford University, 1961); A.V. Dicey, Introduction to the Study of the Law of the Constitution, 10th ed., intro. E.C.S. Wade (London: Macmillan and Co., 1962); Sir Ivor Jennings, The Law and the Constitution, 5th ed. (London: University of London Press, 1959); W. Ivor Jennings, Cabinet Government, 3rd ed. (Cambridge: Cambridge University Press, 1950); A. Berriedale Keith, The King and the Imperial Crown: The Powers and Duties of His Majesty (London: Longmans, Green and Co., 1936); Sir J.G. Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada, 3rd ed., ed. by T.B. Flint (Toronto: Canada Law Book, 1903); W.P.M. Kennedy, The Constitution of Canada: An Introduction to Its Development and Law, 1534-1937, 2nd ed. (London: Oxford University Press, 1938); R. MacGregor Dawson, The Government of Canada (Toronto: University of Toronto Press, 1947); Eugene A. Forsey, The Royal Power of Dissolution of Parliament in the British Commonwealth (Toronto: Oxford University Press, 1943). 29 July 1884; in Pope, Correspondence ..., 316-17.

Notes to pages 18-25 193 48 Wheare, Statute of Westminster, 74-9. 49 Donald Creighton, John A. Macdonald: Tlie Young Politician (Toronto: Macmillan of Canada, 1956), 180-1. 50 R.C.B. Risk, The Law and the Economy in Mid-Nineteenth Century Ontario: A Perspective/ UTLJ 27 (1977), 403-38. 51 Canadian Forum (January 1930), 116-17, quoted in Dawson, Constitutional Issues, 135. Chapter 2: The Crown 1 A.V. Dicey, Law of the Constitution, 10th ed. (London: Macmillan and Co., 1962), 424. 2 'Committees at the Crossroads: Will Innovation Trend Lead to Reform?' Parliamentary Government 2, no. 3 (Summer 1981); Peter C. Dobell and John Reid, 'A Larger Role for the House of Commons/ ibid., 4 (April 1992); Canada, House of Commons, Report of the Special Committee on Reform of the House of Commons (McGrath Committee), June 1985. 3 Sharon L. Sutherland and G. Bruce Doern, Bureaucracy in Canada: Controlaría Reform (Toronto: University of Toronto Press, in cooperation with the Royal Commission on the Economic Union and Development Prospects for Canada and the Canadian Government Publishing Centre, 1985), 11-13 and 43-53. 4 Donald Home, Who Rules Australia?' Daedalus 114, no. 1 (Winter 1985), 177. 5 See Norman Ward, The Formative Years of the House of Commons, 186791,' CJEPS 18, no. 4 (November 1952), 431-51; and Sir John Williams, Reminiscences: Political and Personal (Toronto: McClelland and Stewart, 1919). 6 David J. Elkins and Richard Simeon, Small Worlds: Provinces and Parties in Canadian Political Life (Toronto: Methuen, 1980). 7 W.L. Morton, The Extension of the Franchise in Canada: A Study in Democracy/ Canadian Historical Association Report (1943), 79. 8 Rodney Brazier, Constitutional Reform (Oxford: Clarendon Press, 1991), 111. 9 See Evatt and Forsey on the Reserve Power (A complete and unabridged reprint of H.V. Evatt, Tlie King and His Dominion Governors, 2nd ed., 1967, and E.A. Forsey, The Royal Power of Dissolution of Parliament in the British Commonwealth, 1968 reprint together with a new introduction by Dr Forsey (Sydney: Legal Books, 1990), (hereafter Evatt and Forsey, Legal Books). 10 Tom Nairn, The Enchanted Glass: Britain and Its Monarchy (London: Picador, 1988), 103. 11 'Britain: The Political Constitution/ in Vernon Bogdanor, ed., Constitutions in Democratic Politics (Brookfield, Vt.: Gower, 1988), 59. 12 Edward Whelan, Confederation of the Provinces (Charlottetown: G.T. Hazard,

194 Notes to pages 25-8 1865), 26, quoted in Frank MacKinnon, The Crown in Canada (Calgary: Glenbow-Alberta Institute, McClelland and Stewart West, 1976), 31. 13 Vincent Massey, Address to Canadian Club (Toronto), 8 February 1965, reprinted in Canadian Intelligence Service, Supplementary Section No. 2, April 1965, in RGG (1990-91/016, box 14, file 535.2, vol. 1, 'Authorities, Duties and Powers, Constitutional Duties-General, References to the Monarchy/ 1 October 1947-10 December 1973). 14 W.L. Morton, The Meaning of Monarchy in Confederation/ TRSC 1, series 4: (June 1963), 271. 15 Frederic William Maitland, Selected Essays, ed. H.D. Hazelbine, G. Lapsley, and P.H. Winfield (Freeport, NY: Books for Libraries Press, 1936), 155. See also Geoffrey Marshall, Constitutional Theory (Oxford: Clarendon Press, 1971), ch. 1. 16 David Cohen, Thinking about the State: Law Reform and the Crown in Canada/ Osgoode Hall Law Journal 24, no. 2 (1987), 383. See also Law Reform Commission of Canada, Tlie Legal Status of the Federal Administration, Working Paper no. 40 (Ottawa: The Law Reform Commission of Canada, 1985). The Crown as 'a tangle of intersecting, overlapping, and contradictory strands of political thought7 is of long lineage. See Ernst H. Kantorowicz, The King's Two Bodies: A Study in Mediaeval Political Theology (Princeton: Princeton University Press, 1957), 381. 17 Kenneth H.F. Dyson, The State Tradition in Western Europe: A Study of an Idea and Institution (Oxford: Martin Robertson, 1980). 18 Ibid., 52. He also says that stateless societies emphasize 'personalized, nonpolitical symbols of community which focus notably on Monarchy/ 19 Peter Baskerville, Transportation, Social Change, and Social Formation, Upper Canada, 1841-1864' in Allan Greer and Ian Radforth, eds., Colonial Leviatlian: State Formation in Mid-Nineteenth Century Canada (Toronto: University of Toronto Press, 1992), 233. 20 Dyson, State Tradition, 37-8. 21 K.C. Wheare, The Statute of Westminster and Dominion Status (Oxford: Oxford University Press, 1949), 123. 22 Lord Durham's Report on the Affairs of British North America, reprinted in Arthur Berriedale Keith, ed., Selected Speeches and Documents on British Colonial Policy, 1763-1917 (Oxford: Oxford University Press, 1961), 139. 23 RGG, Esmond Butler to Norman Ward, 26 February 1971 (1990-91/066, box 14, file 535.2, vol. 1). 24 Arthur Berriedale Keith, The Constitutional Law of the British Dominions (London: Macmillan and Co., 1933), 91. 25 A. Berriedale Keith, The King and the Imperial Crown: The Powers and Duties of

Notes to pages 28-30 195

26

27 28

29

30 31 32

33

34

His Majesty (London: Longmans Green and Co., 1936), 426. See also W.K. Hancock, Survey of British Commonwealth Affairs, Vol. 1: Problems of Nationality, 1918-1936 (London: Oxford University Press, 1937). (The Hancock volume contains a valuable supplementary legal chapter entitled The Law and the Commonwealth' by R.T.E. Latham.) As late as the royal visit of 1939, the Dominions Office rejected the theory of divisibility: 'It is by virtue of his succession as "King of Great Britain, Ireland and the British Dominions beyond the Seas ... " that he is King in all parts of his dominions. In this sense he is King in Canada in precisely the same manner in which he is King in the United Kingdom ... It is one kingship, but the King is in a position to act independently in respect of each or any part of his dominions/ Enclosure in Stephen L. Holmes, senior secretary (Office of the High Commission for the United Kingdom) to A.S. Redfern, 7 February 1939 (RGG 1988-89/081, vol. 133, file 2380). Vincent Massey, Address to Canadian Club, 8 February 1965. The source of the second quotation was Sir John Lathan, chief justice of Australia (193552), cited in Zelman Cowen, The Constitution and the Monarchy/ in Geoffrey Dutton, ed., Australia and the Monarchy: A Symposium (Melbourne: Sun Books, 1966), 45. Zelman Cowen served as governor general of Australia from 1977 to 1982. Attorney General of Canada v. Attorney General of Ontario (1897) AC 199; Fielding v. Thomas (1896) AC 600; Liquidators (1892) AC 437. The significant exception is H.V. Nelles, The Politics of Development: Forests, Minerals and Hydro-Electric Power in Ontario, 1849-1941 (Toronto: Macmillan of Canada, 1974), ch. 1, 'A Frontier of Monarchy/ Sir Joseph Pope, ed., Confederation: Being a Series of Hitherto Unpublished Documents on the British North America Act (Toronto: Carswell, 1895), 118-19 (24 October 1864). Bora Laskin, The British Tradition in Canadian Law (London: Stevens and Sons, 1969), 121. Ibid., 118. J. Noel Lyon, The Central Fallacy of Canadian Constitutional Law/ McGLJ, 22 (1976), 45 and 46: See also Katherine Swinton, 'Federalism and Provincial Government Immunity/ ITTLJ, 29 (1979), 1-50. [QB 1982], 892-938 (Eng. CA) The Indian Association of Alberta and Others sought 'a declaration that treaty obligations entered into by the Crown to the Indian peoples of Canada were still owed by Her Majesty in right of Her Government in the United Kingdom/ The application was dismissed. Laskin, British Tradition, 124. See also Elizabeth Edinger, Territorial Limitations on Provincial Powers/ OLR, 14 (1982), 57-69.

196 Notes to pages 30-4 35 The Commonwealth and Central Wool Committee v. Colonial Combing, Spinning and Weaving Company, Ltd., 31 CLR (1922), 450. 36 Lowell, English Constitutional and Legal History, 520. 37 FP, The Cabinet System in Canada since 1867, ch. 1, 'Law and Custom in the Canadian Constitution/ (typescript, 13 pp and notes, in file 56/18: Cabinet Government in Canada: drafts, notes, correspondence, n.d., 1971). 38 Evatt and Forsey, Legal Books; J.R. Mallory, The Office of Governor General Reconsidered/ Politics, 13, no. 2 (November 1978), 215-29. 39 FP, B.S. Markesinis to Forsey, 25 October 1979 (file 56/8: Australia, 19791983). The writer of this letter is the author of The Theory and Practice of Dissolution of Parliament (Cambridge: Cambridge University Press,1972). 40 Bogdanor, The United Kingdom/ in David Butler and D.A. Low, eds., Sovereigns and Surrogates: Constitutional Heads of State in the Commonwealth (London: Macmillan Academic and Professional, 1991), 19. 41 Dicey, Law of the Constitution, 424; John Locke, Two Treatises on Government, intro. P.J. Laslett (Cambridge: Cambridge University Press, 1960), 392-3. 42 Robert Blackburn, The Meeting of Parliament: A Study of the Law and Practice relating to the Frequency and Duration of the United Kingdom Parliament (Brookfield, Vt: Dartmouth, 1990), 90; Gillian Peele, 'Comparing Constitutions/ in Gillian Peele and Dennis Kavanagh, eds., Comparative Government and Politics: Essays in Honour of S.E. Finer (London: Heinemann, 1984), 206-7, quoted in Foley, Silence of Constitutions, 95. 43 See, for instance, Frank MacKinnon, The Government of Prince Edward Island (Toronto: University of Toronto Press, 1951), and J. Murray Beck, The Government of Nova Scotia (Toronto: University of Toronto Press, 1957). 44 J.E. Read, The Early Provincial Constitutions/ CBR 26, no. 4 (April 1948), 633. 45 Campbell v. Hall (1774), in W.P.M. Kennedy, Statutes, Treaties and Documents of the Canadian Constitution, 1713-1929, 2nd ed. (Toronto: Oxford University Press, 1930), 89-94. 46 RGG, Executive Council to Lieutenant Governor of Nova Scotia, 14 August 1868 (G21, vol. 7, file 248, vol. 1,1862-69). 47 Donald S. Lutz, The Theory of Consent in the Early State Constitutions/ Publius 9 (Spring 1979), 11. See also Daniel ]. Elazar, The Principles and Traditions Underlying State Constitutions/ Publius 12 (Winter 1982), 11-25. 48 R. MacGregor Dawson, Government of Canada, 5th ed., revised by Norman Ward (Toronto: University of Toronto Press, 1970), 148. 49 (1985) 18 DLR, (4th) 481 (SCO; (1983) 3 DLR (4th) 193 (FCA) See also TJ. Christian and K.D. Ewing, 'Judicial Review of the Royal Prerogative in Canada/ CLJ, 45 (1986), 173-5, and Clive Walker, 'Review of the Prerogative: The Remaining Issues/ PL (1987), 62-84. Both articles note that the House of

Notes to pages 34-9

50

51

52 53 54 55

56 57

197

Lords has also held that the exercise of prerogative power was 'subject to judicial review, but only if the power in question was justiciable, and many it seems are not/ Council of Civil Service Unions v. The Minister for the Civil Service [1985] AC 374 (hereafter GCHQ case.). PC 1853,1 May 1896, reprinted, as amended, as PC 3374, 25 October 1935 in A.D.P. Heeney, 'Cabinet Government in Canada: Some Recent Developments in the Machinery of the Central Executive/ CJEPS 12, no. 3 (August 1946), 298-9. See also House of Commons Debates, 1 April 1946, in which Mackenzie King said: 'I have been told to be sure to inform the house that this list does not include all of the prerogatives of the Prime Minister' (433-4). For the effect of cabinet committee structures on the powers of the prime minister, see George J. Szablowski, The Optimal Policy-Making System: Implications for the Canadian Political Process/ in Thomas A. Hockin, ed., Apex of Power: The Prime Minister and Political Leadership in Canada (Toronto: Prentice-Hall, 1977), 197-210. The British parallel is discussed in Brazier, Constitutional Reform, 85-106. The phrase 'prerogative of choice' is borrowed from Brazier, 'Choosing the Prime Minister/ PL (1982), 396-7. Dicey, Law of the Constitution, 171-6. Ibid., 166. Carol Harlow, 'Power from the People? Representation and Constitutional Theory/ in Patrick McAuslan and John F. McEldowney, eds., Law, Legitimacy and the Constitution: Essays Marking the Centenary ofDicei/'s Law of the Constitution (London: Sweet and Maxwell, 1985), 72; Dicey, Law of the Constitution, 469 (editor's note). Sir William Wade, Constitutional Fundamentals, Hamlyn Lectures, rev. ed. (London: Stevens and Sons, 1989), ch. 4, 'Administration/ 61. Great Britain, House of Lords Debates, vol. 390 (1977-8), 19 April 1978, 1223-4; 8 June 1978,1427-46; vol. 394 (1977-8), 29 June 1978, 391-402. See also D.P. O'Connell, 'Canada, Australia, Constitutional Reform and the Crown/ The Parliamentarian 60, no. 1 (January 1979), 8, and G. Cubie, 'Devolution within the United Kingdom/ The Table 47 (1980), 80-4.

Chapter 3: Canadianizing the Crown 1 See, for example, Eugene Forsey, 'Meetings of the Queen's Privy Council for Canada, 1867-1882,' CJEPS 32, no. 4 (November 1966), 489-98, and J.R. Mailory, 'Cabinets and Councils in Canada/ PL 2, no. 3 (Autumn 1957), 231-51. See also Norman Me L. Rogers, The Introduction of Cabinet Government in Canada/ CBR 11 no. 1 (January 1933), 1-17, and A.D.P. Heeney, 'Cabinet

198 Notes to pages 39-46

2

3 4

5

6

Government in Canada: Some Recent Developments in the Machinery of the Central Executive/ CJEPS 12, no. 3 (August 1946), 282-301. Mallory, 'Cabinets and Councils/ 234. See also Frank MacKinnon, The Government of Prince Edward Island (Toronto: University of Toronto Press, 1951), 183. R. MacGregor Dawson, The Government of Canada, 5th ed., rev. by Norman Ward (Toronto: University of Toronto Press, 1970), 171. Of eighteen prime ministers to date, only three (Diefenbaker, Pearson, and Trudeau) have published their memoirs, and these tell disappointingly little about cabinet decision-making or the influences brought to bear on cabinet. In the twenty-five years after Lester Pearson formed a government, just three of his ministers wrote memoirs: Walter Gordon, A Political Memoir (Toronto: McClelland and Stewart, 1977), Judy LaMarsh, Memoirs of a Bird in a Gilded Cage (Toronto: McClelland and Stewart, 1968), and Paul Martin, A Very Public Life, Vol. 2: So Many Worlds (Toronto: Deneau, 1985), passim. Four accounts written by former Trudeau ministers, published in 1985 and 1986, do not meet the earlier standard: Jean Chretien, Straight from the Heart (Toronto: Key Porter Books, 1985); Donald J. Johnston, Up the Hill (Montreal: Optimum Publishing International, 1986); Roy MacLaren, Honourable Mentions: The Uncommon Diary of an MP (Toronto: Deneau, 1986); and Eugene Whelan (with Rick Archibold), Whelan: The Man in the Green Stetson (Toronto: Irwin, 1986). If Pearson and Martin are excluded, only one of Mackenzie King's seventy-two other ministers dictated memoirs: Norman Ward, ed., A Parti/ Politician: The Memoirs of Chubby Power (Toronto: Macmillan, 1966). In the first half-century of Confederation, when cabinets were smaller and responsibilities less extensive, the selection is no better. The best is in Richard Cartwright, Reminiscences (Toronto: William Briggs, 1912). Meighen to Forsey, 21 September 1946 in FP (file 20/13, 'Cabinet Government-Correspondence, 1945-1976'). The article appeared as Dawson's 'Presidential Address delivered at the Annual Meeting of the Canadian Political Science Association, May 24,1946/ in CJEPS 12, no. 3 (August 1946), 261-81. A more recent dissent by a former minister from an academic interpretation of cabinet government is the review written by Otto Lang of Herman Bakvis's Regional Ministers, Power and Influence in the Canadian Cabinet (Toronto: University of Toronto Press, 1991) in CPA 35, no. 4 (Winter 1992), 573-5, and Bakvis's reply, 576-7. Forsey says that Macdonald and Sir John Thompson acknowledged that there could be such a distinction but not one between ministry and government. FP (file 56/17, 'Cabinet government, scraps, n.d., 1947'). (This document may be based on a letter from Arthur Meighen, 26 February 1946.)

Notes to pages 40-3

7 8 9

10 11 12 13

14

199

Globe and Mail, 4 November 1993, Al, 'Chretien ... [to] appoint "outer circle" of junior ministers/ Heeney, 'Cabinet Government/ 283. RGG, 'Memorandum made by H.E. in the margin of the Report of the Minister of Finance of 26 April 1871/ 148 (G21, vol. 8) Taken together, the following three works cite most of the major published research on the occupants of the office of governor general: Governors General of Canada, 1867-1975: Select Bibliography ¡Les Gouverneurs généraux du Canada, 1867-1975: Bibliographie Selective (Ottawa: Information and Research Branch of the Library of Parliament [1975]); Anthony H.M. Kirk-Greene, The Governors-General of Canada, 1867-1952: A Collective Profile/ Journal of Canadian Studies 12, no. 4 (Summer 1977), 35-57; and John Pepall, 'Who Is the Governor General?' The Idler 28 (March-April 1990), 53-9. The most informative record of one governor general's relationship with his first ministers is not mentioned in the preceding surveys, because they omit the period of the 1950s: Claude Bissell, The Imperial Canadian: Vincent Massey in Office (Toronto: University of Toronto Press, 1986), ch. 7. An example of an insubstantial personal account is Roland Michener, 'Looking Back at Rideau Hall/ Historical Paper s I Communications Historiques, 1975, Canadian Historical Association (1975), 135-46. On the office of lieutenant-governor, there remains one principal source: John T. Saywell, The Office of Lieutenant Governor (Toronto: University of Toronto Press, 1957). See also Saywell, 'The Lieutenant Governor/ in D.J. Bellamy, J.H. Pammett, and D.C. Rowat, eds., The Provincial Political Systems (Toronto: Methuen, 1976), 297-309. RGG, Redfern memo no. 1. RGG, Pope to Major H.A. Panet, DSO, Deputy Adjutant General, 19 September 1908 (1988-89/081, box 133, file 2450A). NLA, Deakin Papers, Baron Northcote to Alfred Deakin, 17 March 1907 (MS1540/15/1053). David J. Bercuson and Barry Cooper, 'From Constitutional Monarchy to Quasi Republic: The Evolution of Liberal Democracy in Canada/ in Janet Ajzenstat, ed., Canadian Constitutionalism, 1791-1991 (Ottawa: Canadian Study of Parliament Group, [1992]), 21. Geoffrey Sawer, The Australian Constitution, 2nd ed. (Canberra: Australian Government Publishing Service, 1988), 74; WJ. Hudson and M.P. Sharp, Australian Independence: Colony to Reluctant Kingdom (Melbourne: Melbourne University Press, 1988), 5. The Australia Acts (there was both Commonwealth and United Kingdom legislation by that title) are discussed fully in James A. Thomson, The Australia Acts 1986: A State Constitutional Law Perspective/ WALK 20, no. 2 (Special Issue, 1990), 409-27.

200 Notes to pages 43-8 15 FP, Forsey to Maurice J. King, 12 April 1989 (original emphasis); see also Forsey to editor, Saturday Night, November 1989 (files 57/26, 57/11 and 59/ 31, 'Disallowance of Bill 178, letters 1989,' 'Constitution general, 1984-1989/ and 'Monarchy, n.d., 1971-89'). 16 RGG, 'Memorandum on a Point raised with Reference to the Governor Generals [sic] Prerogative/ n.d., 17 pp. (G18, vol. 70). 17 'Edward Blake on the Office of Governor General, 1876,' in W.P.M. Kennedy, ed., Statutes, Treaties and Documents of the Canadian Constitution, 1713-1929, 2nd ed. (Toronto: Oxford University Press, 1930), 669-74. See also 'Edward Blake on the Prerogative of Mercy, 1876' and 'Letters Patent Constituting the Office of Governor General of the Dominion of Canada, 1878.' 18 RGG, 'Principal Changes in Constitutional Forms Relating to the Dominions, 1910-35,' DO159, Dec. 1935,6 (1988-89/081, box 122, file 1850-A, The Crown in Canada - Position of the Governor General, 1926-63'). 19 J.R. Mallory, The Appointment of the Governor General: Responsible Government, Autonomy, and the Royal Prerogative/ CJEPS 26, no. 1 (February 1960), 96-107. 20 RGG, 'Confidential Draft on The Monarchy and the Constitutional Amendment Bill/ Federal-Provincial Relations Office, 2 October 1978 (1990/91/016, box 13, file 535.1, vol. 2). Despite the new Letters Patent, during the illness of King George VI in October 1951, Buckingham Palace still spoke of amending the Regency Act to bring Canada within its terms; see 'Memorandum for the Minister, Performance of certain royal functions by the Governor General/ 'A.D.P.H.' (1988-89, box 122, file 1850-B). 21 Bissell, Imperial Canadian, 172-3; John Sweetenham, McNaughton: Vol. 3, 1944-46 (Toronto: Ryerson Press, 1969), 11-12. 22 House of Commons Debates, 15 December 1952, 643; and RGG Redfern memo no. 1, 6. 23 RGG, Redfern memo no. 1, 2-3. 24 Bissell, Imperial Canadian, 274-6. 25 DA, DP, Diefenbaker to B.D. Jordon Bell, 19 August 1959 (file VI/110/311.2, 094569). 26 RGG, Transcript of CBC News, 14 December 1972,' Cantel News, Toronto to Madelaine d'Auray, Press Secretary Office, Government House (1990-91 / 016, box 14, file 535.2, vol. 1. 'Authorities, Duties and Powers, Constitutional Duties-General, References to the Monarchy/ 1 October 1947-10 December 1973). 27 This paragraph is drawn from material in ibid. Viscount Willingdon (192631) made the first state visit to the United States in 1928. Viscount Alexander (1946-52) travelled outside of North America, to Brazil, in 1948, but this was

Notes to pages 49-51 201

28 29 30

31

32 33 34 35 36

not considered a state visit. Nonetheless, his secretary (H.F.G. Letson) told the chief of protocol at External Affairs that the governor general should be regarded as a head of state for the occasion and receive nineteen guns and the Red Ensign. See 17 January 1948 (RGG, 1988-89/081, box 122, file 1850-A). RGG, Robertson to Leger, 14 August 1978 (1990-91 /016, box 13, file 535.1, vol. 1. 'Authorities Duties and Powers, Constitutional Duties-General, General'). Ibid., Philip Moore to My dear Prime Minister, 20 June 1978. See Eugene Forsey, The Role of the Crown in Canada since Confederation/ The Parliamentarian 60, no. 1 (January 1979), 14-20; and J.R. Mallory, 'Some Constitutional Implications of Bill C-60: Part VI, 'A Submission to the Joint Special Committee of the Senate and the House of Commons on the Constitution of Canada/ RGG (1990-91/016, box 13, file 535.1 vol. 1). A nonCanadian's evaluation of the bill is found in D.P. O'Connell, 'Canada, Australia, Constitutional Reform and the Crown/ The Parliamentarian 60, no. 1 (January 1979), 5-13. There is a substantial literature on the Australian constitutional crisis of 1975. For the views of the principal participants, see Sir John Kerr, Matters for Judgment (London: Macmillan, 1978) and E.G. Whitlam, The Truth of the Matter (Harmondsworth, NY: Penguin, 1979). There is extensive correspondence in the Forsey Papers between Forsey, Sir John Kerr, and Sir Garfield Barwick, chief justice of Australia, 1964-81, whom Kerr consulted during the crisis (FP, files 56/6 and 56/11, Australia, 1979-1983 and Barwick, Sir Garfield [Australia], 1983-1985; file 58/31-34 Kerr, Sir John). Barwick's own account of the events is in Sir John Did His Duty (Wahroonga: Serendip Publications, 1983). A memorandum on the crisis and its handling was prepared by Barwick for Dean Rusk with a copy forwarded to the chief justice of Canada, Bora Laskin, and later transmitted by Laskin to the governor general, Jules Léger, 19 April 1978. See RGG (1990-91/016, box 13, file 535.1, vol. 1). An Australian academic's view of the crisis is Geoffrey Sawer, The Governor-General of the Commonwealth of Australia,' Current Affairs Bulletin 52 (1976), 20-31, in EP (vol. 44, folder 44-28). RGG, Robertson to Léger, 14 August 1978 (1990-91/016, box 13,file535.1 voll). See R. B. Byers and J.T. Saywell, eds., Canadian Annual Review of Politics and Public Affairs, 1978 (Toronto: University of Toronto Press, 1980), 53-5. Reference re: Legislative Authority of Parliament to Alter or Replace the Senate (1980), 1 SCR 54. The Times (London), 29 August 1978, Where Does the Queen's Man Stand in Mr Trudeau's Canada,' by Charles Douglas-Home. DA, DP, Toronto Sun, 8 December 1978, 3 (XI, referenced subseries, file Governor General 1977-79).

202 Notes to pages 52-5 37 See RGG, Philip Moore to My dear Prime Minister, 20 June 1978 (1990-91/ 016, box 13 file 535.1, vol. 1). See Michael Adeane (private secretary to the Queen) to Esmond Butler, 6 February 1970 (1990-91/016, box 14, file 535.2, vol. 1) 38 RGG, Bruce to Mackenzie King, 30 November 1937 (1988-89/081, box 133, file 2450A, vol. 6, 'Lieutenant Governors Status of - Instructions to - 18721955'). 39 Adam Shortt and Arthur G. Doughty, gen. eds., Canada and Its Provinces: A History of the Canadian People and Their Institutions by One Hundred Associates, 22 vols. (Toronto: Glasgow, Brook and Co., 1914), 14: The Atlantic Provinces, 390; 17: The Province of Ontario, 109; CO 42, vol. 757,23 June 1879, Despatch no. 179 re: the Constitution of the Legislative Council of Nova Scotia, minute. 40 RGG, Alexander Hardinge to Tweedsmuir, 2 January 1939; Willingdon to Lord Stamfordham, 16 June 1928, in extract of Sir Clive Wigram to Alan Lascelles, 5 January 1934; Redfern memo no. 4,1; R.W. Scott to Col. J. HanburyWilliams (secretary to governor general), 17 May 1906; Michael Adeane to Lionel Massey (secretary to governor general), 18 July 1955; Pierre Asselin (private secretary to the prime minister) to Lionel Massey, 27 September 1955 (all but Redfern, 1988-39/081, box 133, file 2450.A, vol. 1). 41 Argus (Melbourne), 13 June 1902, quoted in D.I. Wright, 'Commonwealth and States, 1901-10: A Study of the Executive and Administrative Relations of the Seven Governments in Australia in the First Decades of the Federal System' (Ph.D. dissertation, Australian National University, 1968), 427. Senate of Canada, Proceedings of the Special Senate Committee on the Constitution, 21 November 1978, 2:25. 42 Senate of Canada, Proceedings of the Special Committee on the Constitution, 21 November 1978, 2:25. 43 SAB, Papers of R.L. Hanbidge, Hanbidge to H.S. Tim' Lee, 7 March 1963, and Hanbidge to Hon. Earl Rowe, 28 January 1963 (file in Correspondence, I.IC). 44 See R.A. Young, Philippe Faucher, and Andre Blais, 'The Concept of Province-Building: A Critique/ CJPS 17 no. 4 (December 1984), 783-818; David E. Smith, ed., Building a Province: A History of Saskatchewan in Documents (Saskatoon: Fifth House Publishers, 1992). 45 RGG, Alan Lascelles to Sir Clive Wigram, 8 December 1933, extract (198889/081, box 133, 2450.A, vol. 1). 46 RGG, Butler to Steinhauer, 17 March 1976, and Butler to G.S. Smith (director, Machinery of Government, PCO), 12 March 1976 (1990-91/016, box 97,878.2). 47 Senate of Canada, Proceedings of the Special Committee on the Constitution, 26 July 1978,1:104.

Notes to pages 55-60 203 48 Eugene Forsey, 'Constitutional Monarchy and the Provinces/ in Ontario Advisory Committee on Confederation, Background Papers and Reports (Toronto: Queen's Printer, 1967), 177-86. 49 R. MacGregor Dawson, in CJEPS 10 no. 1 (February 1944), 88-93. 50 FP, Smiley to Forsey, 11 June 1985 (file 61/32, Smiley, Don - Correspondence, 1982-87). For a perspective on this event that deals with the lieutenantgovernor, see J.R. Mallory, 'An Affair of Discretion/ QQ, 92, no. 4 (Winter 1985), 758-64. 51 FP, Ward to Forsey, 25 April 1988 (file 62/23, Universities: Saskatchewan, 1985-89). 52 John T. Saywell, ed. and intro., The Canadian Journal of Lady Aberdeen, 18931898 (Toronto: The Champlain Society, 1960), n. 316-17. 53 Peter Neary, 'Changing Government: the 1971-72 Newfoundland Example/ DLJ 5, no. 3 (November 1979), 651. 54 Robert Blackburn, The Meeting of Parliament: A Study of the Law and Practice relating to the Frequency and Duration of the United Kingdom Parliament (Brookfield, Vt: Dartmouth, 1990), 90. 55 Senate of Canada, Proceedings of the Special Committee on the Constitution 9 August 1978, 3:12. 56 FP, Forsey to John Wilson, 5 January 1980 (file 62/36, Wilson, John, University of Waterloo, 1974,1979-87) original emphasis. 57 FP, John Wilson to Forsey, 9 November 1984, ibid. The interview was published in Past and Present (Faculty of Arts, University of Waterloo, December 1984), 8-10. 58 FP, Edward McWhinney to Forsey, 22 January 1982 (file 59/23, McWhinney, Edward, correspondence, papers on constitutional matters, 1980-84). The governor general's comments appeared in Globe and Mail, 22 January 1982. 59 Forsey to editor, Globe and Mail 27 January 1982. 60 NLA, Munro Ferguson (Lord Novar) Papers, W.M. Hughes to Governor General, 8 February 1918 (MS696/4767). 61 RGG, Redfern memo nos. 6 and 4. 62 RGG, Redfern memo no. 1. 63 RGG, Memorandum to His Excellency, 4 February 1970 (1990-91/016, box 14, file 535.2, vol. 1), and 'Memorandum for file: Subject: Consent of the Crown to the Garnishment Bill/ 4 May 1978 (1990-91/016, box 13, file 535.1, vol. 1). 64 FP, Memorandum for RMB from RAB [Richard Albert Bell], September 1984 (file 58/3, Dissolution of Parliament 1969,1973,1984). Information on the use of the instrument of advice was provided to the House of Commons in answer to a question by Mr Bell, 4 April 1966.

204 Notes to pages 60-5 65 FP, 12 September 1983 (file 59/7, Letters: Constitutional (1) 1978-84) original emphasis. 66 This paragraph is based on material found in RGG (1990-91/016, box 14, 535.2, vol. 2.): Esmond Butler to Michael Pitfield (Clerk of the Privy Council), 30 December 1975; Pitfield to Butler, 26 May 1976 (reply); Butler to Marcel Masse (Clerk of the Privy Council), 21 September 1979. 67 Lord Grey to Lord Elgin, 2 June 1847, in Sir Arthur G. Doughty, ed., The Elgin-Grey Papers, 1846-1852, 4 vols. (Ottawa, 1937), I: 39. Chapter 4: Government of the Day 1 W.P.M. Kennedy, Some Aspects of the Tlieories and Workings of Constitutional Law (New York: Macmillan Co., 1932), 120. 2 Harold A. Innis, Political Economy in the Modern State (Toronto: Ryerson Press, 1946), 132; Mark Sproule-Jones, The Enduring Colony? Political Institutions and Political Science in Canada/ Publius 14 (1984), 93-108. 3 'Evidences of Culture Considered as Colonial/ in Culture and Nationality: Essays by A.G. Bailey (Toronto: McClelland and Stewart, 1972), 184. 4 RGG, 'Memorandum on the expediency of uniting under One Government the three Provinces of Nova Scotia, New Brunswick and Prince Edward Island/ [1857] (G18, vol. 22); Sir Charles Bagot to Lord Stanley, 26 September 1842, in G.P. deT. Glazebrook, Sir Charles Bagot in Canada: A Study in British Colonial Government (Oxford, 1929), Appendix A, 144; and Elgin to Lord Grey, 27 May 1847, in Sir Arthur G. Doughty, ed., The Elgin-Grey Papers, 1846-1852, 4 vols. (Ottawa, 1937), I: 47-S. Ironically in Upper Canadian politics, writes S.J.R. Noel, 'the very system of non-responsible government ... that ensured the [Family] Compact's position of privilege in the capital... also ensured a substantial measure of local autonomy/ Grand patrons, like Colonel Talbot, deferred to the Crown but not the Compact, if only because it was the Crown in the person of the governor who controlled patronage, principally in the matter of land. See Patrons, Clients and Brokers: Ontario Society and Politics, 1791-1896 (Toronto: University of Toronto Press, 1990), 99. 5 Kennedy, Constitutional Law, 122. 6 M.J.C. Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967), 132. Although Vile uses this phrase to describe the powers of the royal governors in the American colonies, it is not an inappropriate description of cabinet government two hundred years later. The prerogative proved a problem for the newly independent colonies: 'The history of constitutional doctrine in the decade between the Constitution of Georgia and the Federal

Notes to pages 65-9

7 8 9 10

11 12 13 14 15 16 17 18 19 20 21 22 23

205

Constitution is, in part at least, the history of the search for a rationale for dealing with the former prerogatives of the Crown' (143). Lewis B. Namier, 'Monarchy and the Party System' (the Romanes Lecture, 15 May 1952), (Oxford: Clarendon Press, 1952), 12. S.E. Finer, 'Patronage and the Public Service: Jeffersonian Bureaucracy and the British Tradition/ Public Administration 30 (Winter 1952), 355. J. Murray Beck, The Government of Nova Scotia (Toronto: University of Toronto Press, 1957), 36. Macdonald to Bram Chamberlain, 26 October 1868, in Sir Joseph Pope, ed., Correspondence of Sir John A. Macdonald: Selections from the Correspondence of the Rt. Hon. Sir John Alexander Macdonald (Toronto: Oxford University Press, 19[21]), 74-5. Norman Ward, The Public Purse: A Study in Canadian Democracy (Toronto: University of Toronto Press, 1951), 16. R. MacGregor Dawson, The Civil Service of Canada (Oxford: Oxford University Press, 1929), 35. SAB, Turgeon Papers, Turgeon to J.A. Calder, 17 July 1988 (I, General Correspondence, 1918 'C/ 317-20). Report of the Ontario Commission on Unemployment (Toronto: King's Printer, 1916), 43. (1883-84), 9AC 117; (1898), AC 247; (1892), AC 437. Auditor General of Canada v. Canada (Minister of Energy, Mines and Resources) et al, 97 NR [1989] 288,291. FP, Henderson to Forsey, 31 December 1985 (file 59/10, Letters, Miscellaneous [2], 1984-86). J.D.B. Mitchell, The Causes and Effects of the Absence of a System of Public Law in the United Kingdom/ PL (1965), 110. Auditor General of Canada v. Minister of Energy, Mines and Resources, et al., 1FC [1985], 749-50. Lord Chorley, 'Law-making in Whitehall/ MLR, 9 (1946), 27, quoted in James T. Craig, The Reluctant Executive/ PL (1961), 45. C. Michael Mitchell, The Role of Courts in Public Policy-Making: A Personal View/ University of Toronto Faculty of Law Review 33 (1975), 9. Cited in Lord Devlin, fudges and Lawyers' (the Chorley Lecture), MLR 39, no. 1 (January 1976), 6. Baker v. Can, 369 US 186 (1962); Reference re Provincial Electoral Boundaries [1991] 5 WWR1 (SCO, 12; and Dixon v. British Columbia (Attorney General) [1989] 4 WWR 393 (BCSC), 419. Canadian and American jurisprudence on the matter of electoral boundaries is discussed in John C. Courtney, Peter MacKinnon, and David E. Smith, eds., Drawing Boundaries: Legislatures,

206 Notes to pages 70-4

24

25

26 27

28 29 30 31

32 33

34

35

Courts, and Electoral Values (Saskatoon: Fifth House Publishers, 1992), especially Robert G. Richards and Thomson Irvine, 'Drawing Boundaries: The Saskatchewan Case/ 48-69, and Howard A. Scarrow, 'One Man - One Vote: Tracing Its Roots and Consequences/ 179-91. Forsey to Premier Peckford, 23 May 1982, quoted in Senate Debates, 25 May 1982, 4185. On the subject of the reference, see Gerald Rubin, The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law/ reprinted in W.R. Lederman, ed., The Courts and the Canadian Constitution (Toronto: McClelland and Stewart, 1964), 220-48. CO 42/795, Lansdowne to Sir Henry Holland (Lord Knutsford) 18 February 1888. While not emphasized in the original, the passage was later underlined, perhaps at the Colonial Office. Re Initiative and Referendum Act (1919), AC 944. G.S. Rutherford, 'Delegation of Legislative Power to the LieutenantGovernors in Council/ CBR 26 (1948), 537 and 542. The thesis of symmetry is criticized more recently by Stephen A. Scott, 'Queens as Nursing Mothers: Federal Public Expenditure under the Canadian Constitution/ unpublished paper delivered at a conference at the University of Calgary, 12-13 October 1990, on The Power of the Purse: Financial Incentives as Regulatory Instruments, 73-9. House of Commons Debates, 12 November 1945, 2020; 13 November 1945, 2075-8. Ibid., 19 May 1947, 3215-21. St Laurent Papers, St Laurent to Alan Macnaughton, 28 October 1949 (file N-10-5(a), National Status). Andrew Hubbertz, 'Crown Copyright and Privatization of Government Information in Canada, with comparisons to the United States Experience/ Government Publications Review 17 (1990), 159. Patricia Cline Cohen, A Calculating People: The Spread of Numeracy in Early America (Chicago: University of Chicago Press, 1982). George Fletcher Henderson, Federal Royal Commissions in Canada: A Checklist (Toronto: University of Toronto Press, 1967); Lise Maillet, comp. Provincial Royal Commissions and Commissions of Inquiry, 1867-1982: A Selective Bibliography (Ottawa: National Library of Canada, 1986). R. MacGregor Dawson, The Principle of Official Independence (London: P.S. King and Son, 1922), 179-30. The phrase comes from Graham Wallas, The Great Society: A Psychological Analysis (London: Macmillan and Co, 1932), 238. Thomas J. Lockwood, 'A History of Royal Commissions/ Osgoode Hall Law Journal 5 (1967), 174.

Notes to pages 74-8 207 36 Kelly and Sons v. Mathers, C.J.K.B., Macdonald /., and Sir Hugh John Macdonald, 23 DLR (1915), 228. 37 John A. Munro and Alex I. Inglis, eds., Mike: The Right Honourable Lester B. Pearson: Volume 3,1957-1968 (Toronto: University of Toronto Press, 1975), 237. Language is important in another way too, for 'the name of the Royal Commission itself was a symbol generating status anxiety [for the nonEnglish, non-French] as were several other themes permeating the debate: founding peoples, charter groups, the two nations society/ Raymond Breton, The Production and Allocation of Symbolic Resources: An Analysis of the Linguistic and Ethnocultural Fields in Canada/ in Leo Driedger, ed., Ethnic Canada: Identities and Inequalities (Toronto: Copp Clark Pitman, 1987), 55. 38 David Warren Fransen, '"Unscrewing the Unscrutable": The Rowell-Sirois Commission, the Ottawa Bureaucracy, and Public Finance Reform, 19351941r (Ph. D. dissertation, University of Toronto, 1984). Fransen quotes (p. 23) J.A.C. Osborne, deputy governor of the Bank of Canada, who described the provinces as incapable of 'any serious or consecutive thinking/ and Ontario, in particular, as 'a distinct menace' (Bank of Canada, Dominion-Provincial relations/Letter Book, 2-2, Osborne to Gilbert Jackson, 6 June 1936). 39 William Alonso and Paul Starr, The Political Economy of National Statistics/ Items (Social Science Research Council, New York), 36, no. 3 (September 1982), 30. 40 Monique Begin, 'Debates and Silences - Reflections of a Politician/ Daedalus 117, no. 4 (Fall 1988), 345-8 passim. 41 Scott, 'Queens as Nursing Mothers/ 75 (italics in original omitted). 42 W.H. McConnell, Commentary on the British North America Act (Toronto: Macmillan of Canada, 1977), 191. 43 House of Commons Debates, 8 March 1870, 283. 44 Rowell-Sirois Commission, Report of Proceedings, 3846. The political significance of an agency like Statistics Canada has yet to be examined, although the absence of a comparable central body in Great Britain and the United States is noted in Jean-Pierre Beaud and Jean-Guy Prévost, 'La Structuration de l'appareil statistique canadien, 1912-21,' CHR 74, no. 3 (September 1993), 395-413. 45 Electronic Legal Information: Exploring Access Issues (prepared for CLIC by Kathy Kelso, Alamar Education Inc., Toronto, 1991), 23-33. See also Barry Cleaver et al., Handbook Exploring the Legal Context for Information Policy in Canada (n/p, Faxon Canada, 1992). 46 Hubbertz, 'Crown Copyright/ 163; Barry Torno, Crown Copyright in Canada:

208 Notes to pages 78-81

47 48 49 50 51 52

53

54

55 56 57 58

59 60

A Legacy in Confusion (Ottawa: Consumer and Corporate Affairs Canada, 1981), 46. Andrew Hubbertz, 'Freedom of Information and Canadian Crown Corporations/ Government Information Quarterly 3, no. 1 (1986), 63-71. Auditor General... 1FC [1985], 746; Auditor General... 97 NR [1989], 312 and 305-6. Alan C. Cairns, The Past and Future of the Canadian Administrative State/ UTLJ 40 (1990), 319-61. J.D.B. Mitchell, 'System of Public Law/ 17. Attorney General of Quebec v. Labrecque [1980] 2 SCR 1082, quoted in Scott, 'Queens as Nursing Mothers/ 73. Dale Gibson, 'Can Lame Ducks Lay Golden Eggs?: The Power of Defeated Governments to Make Binding Commitments/ Manitoba Law Journal 17, no. 3 (Summer 1988), 324-7; Scott, 'Queens as Nursing Mothers/ 72 (italics omitted). Scott, 'Queens as Nursing Mothers/ 16. Phrased differently, in the words of a former clerk of the Executive Council of Saskatchewan: 'Cabinet ministers are primarily members of a council and assume their functions as a department head as a subsidiary duty/ H.E. Lee, Tressure Groups in Administration/ Proceedings of the Fifth Annual Conference, Institute of Public Administration of Canada (1953), 197-200. See Andrew Petter, 'Federalism and the Myth of the Federal Spending Power/ CßjR 68, no. 3 (September 1989), 448-79. In his critical assessment of the arguments for the spending power, Petter cites the principal literature. The argument on the provincial spending power is Dunbar v. Attorney General of Saskatchewan (1984), 11 DLR (4th) 374 (Sask. QB). Gregory Tardi, The Legal Framework of Government: A Canadian Guide (Aurora: Canada Law Book, 1992), 172. John Richards and Larry Pratt, Prairie Capitalism: Power and Influence in the New West (Toronto: McClelland and Stewart, 1979). Ward, The Public Purse, 6. Robert Paehlke, 'Government Regulating Itself: A Canadian-American Comparison/ Administration and Society 22, no. 4 (February 1991), 427. For a general survey of the subject, see Allan Tupper and G. Bruce Doern, 'Public Corporations and Public Policy in Canada/ in Allan Tupper and G. Bruce Doern, eds., Public Corporations and Public Policy in Canada (Montreal: Institute for Research in Public Policy, 1981), 1-50. Annmarie Hauch Walsh, The Public Business: The Politics and Practices of Government Corporations (Cambridge, Mass.: MIT Press, 1978), 3. Mellenger and another v. New Brunswick Development Corporation [1971] 2 All ER, CA, 596.

Notes to pages 82-7 209 61 A less sanguine view is in Cairns, 'Canadian Administrative State/ Recent information on cabinet operations as they affect bodies like crown corporations is scarce. For the early modern period of the CCF in Saskatchewan, see SAB, T.C. Douglas Papers (R33.2), George T. Tamaki (secretary and legal adviser, Government Finance Office), 'Lecture on Crown Corporations' (Saskatchewan Budget Bureau, Administrative Management Training Course, 3 June 1949); Minutes of Cabinet-Planning Board meeting (vice chairman, T.K. Shoyama), 10-12 October 1951; and The Budget as an Instrument of Planning/ 7 August 1946. See also Allen [sic] E. Blakeney (secretary, Government Finance Office,) 'Saskatchewan Crown Corporations/ Proceedings of the Fifth Annual Conference, Institute of Public Administration of Canada (1953), 413-26. 62 Saskatchewan, Report of the Provincial Auditor year ended March 31,1991 (Regina: Provincial Auditor, 1992), 79. 63 Royal Commission on Financial Management and Accountability, Final Report (Ottawa: Supply and Services, 1979). 64 For a history, see H.R. Balls, 'Governor General's Warrants/ Canadian Tax Journal 3 (1963), 181-93. 65 Quotations in this paragraph are from Senate Debates, 9 May 1989,160-5 (Senator John B. Stewart). See also Standing Senate Committee on National Finance, Proceedings, 10 May 1989, 3:5-43. 66 See David E. Smith, 'Saskatchewan/ in Canadian Annual Review of Politics and Public Affairs, 1989 (Toronto: University of Toronto Press, forthcoming); Merrilee Rasmussen, 'Special Warrants' (Regina: [Saskatchewan Legislative Library], 1991). 67 EW. Johnson to Howard Leeson, 15 April 1987, enclosure in Leeson to Forcese [sic], 29 April 1987, in FP. (file 60/23, Provincial MLAs - letters, 1985-89). 68 Leader-Post (Regina), 24 April 1987,3. Chapter 5: The Culture of Administration 1 For a recent assessment of ministerial accountability, see S.L. Sutherland, 'Responsible Government and Ministerial Responsibility: Every Reform Is Its Own Problem/ CJPS 24, no. 1 (March 1991), 91-120. 2 On the subject of legislative delegation and its control, see Third Report of the Special Committee on Statutory Instruments (Ottawa: Queen's Printer, 1969), esp. 1-18, and J.R. Mallory, 'Curtailing "Divine Right": The Control of Delegated Legislation in Canada/ in O.P. Dwivedi, ed., The Administrative State in Canada: Essays in Honour ofJ.E. Hodgetts (Toronto: University of Toronto Press, 1982), 131-49. 3 For example, Third Report (Statutory Instruments No. 22) in Minutes of Pro-

210 Notes to pages 87-9

4 5

6

7

8

9

10

11

ceedings and Evidence of the Standing Joint Committee on Regulations and Other Statutory Instruments, 12 April 1984, no. 4: 7-76 (hereafter Third Report}. In 1991 the committee was renamed the Standing Joint Committee for the Scrutiny of Regulations. Third Report, 4:W. For the era and its style of governing, see Reginald Whitaker, The Government Party: Organizing and Financing the Liberal Party of Canada, 1930-58 (Toronto: University of Toronto Press, 1977); Norman Ward and David Smith, Jimmy Gardiner: Relentless Liberal (Toronto: University of Toronto Press, 1990); Robert Both well and William Kilbourn, CD. Howe: A Biography (Toronto: McClelland and Stewart, 1979). A foreign visitor who was impressed by the calibre of the federal government in the 1950s was Richard (later Baron) Casey, then minister of external affairs but in 1965 to become governor general of Australia. He thought Canada proved (favourably) the dictum that 'a country is only as great as its public servants/ NLA, Casey Diary, vol. 13 (30 November 1951-3 December 1951), 299. R.V. Vernon and N. Mansergh, eds., Advisory Bodies: A Study of Their Uses in Relation to Central Government, 1919-1939 (London: G. Allen and Unwin, 1940), and K.C. Wheare, Government by Committee (Oxford: Oxford University Press, 1955). Dufferin to Lord Carnarvon, 25 April 1874, in C.W. de Kiewiet and F.H. Underbill, eds., Dufferin-Carnarvon Correspondence, 1874-1878 (Toronto: Champlain Society, 1955), 37. A monograph with a historical and comparative perspective, looking at British and United States practices as well as Canadian, is Allan K. McDougall, Policing: The Evolution of a Mandate (Canadian Police College, Ottawa: Supply and Services, 1988). The only article that links police to the implementation of law is by G.C. Sharman, The Police and the Implementation of Public Law/ CPA 20, no. 2 (Summer 1977), 291-304. But see R.C. Macleod and David Schneiderman, eds., Police Powers in Canada: The Evolution and Practice of Authority (Toronto: University of Toronto Press, 1994). John LI.J. Edwards, Ministerial Responsibility for National Security as It Relates to the Office of Prime Minister, Attorney General and Solicitor General of Canada (Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police), (Ottawa: Supply and Services, 1980), 68. C.E.S. Franks, Parliament and Security Matters (Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police), (Ottawa: Supply and Services, 1980), 60. Sir William Armstrong, The Role and Character of the Civil Service/ Proceedings of the British Academy 56 (1970), 211.

Notes to pages 90-3 211 12 J.A.G. Griffith, The Place of Parliament in the Legislative Process' (Part II),' MLR 14 (1951), 425, quoted in James T. Craig. The Reluctant Executive/ PL (1961), 73. 13 Rene Dussault and Louis Borgeat, Traite de Droit administrative, 2ieme ed. (Quebec: Les Presses de l'Université Laval, 1984), 1:400. 14 Third Report, 10:1. 15 Dussault and Borgeat, Droit administrative, 402. 16 Third Report, 4:53-4; 4:16-7. 17 Ibid., 21. 18 John C. Clifford, 'Making Administration Work: An Examination of the Juxtaposition of Administrative and Legal Ordering/ paper presented at the annual meeting of the Canadian Political Science Association, Kingston, Ontario, June 1991, 8. See also Henry L. Mo lot, 'Administrative Discretion and Current Judicial Activism' OLR 11 (1979), 364-5. 19 Geoffrey Marshall, Constitutional Theory (Oxford: Clarendon Press, 1971), 113. 20 I.N.S. v. Giadha, 462 US 919 (1983); Court opinion quoted in Laurence H. Tribe, American Constitutional Law, 2nd ed. (Mineóla, NY: The Foundation Press, 1988), 214-18; See also Laurence H. Tribe, Constitutional Choices (Cambridge, Mass.: Harvard University Press, 1985), ch. 6; and Francis E. Rourke, 'Whose Bureaucracy Is This Anyway?' P.S.: Political Science and Politics 26, no. 4 (December 1993), 687-92. A comparative analysis of the separation of powers and its meaning for administration is found in Bora Laskin, 'Comparative Constitutional Law - Common Problems: Australia, Canada, United States of America/ ALJ51 (1977), 450-9. Here, Laskin advances the proposition that the Supreme Court of Canada favours a pragmatic approach and is 'chary of a too conceptual assessment' of separation of powers doctrine (456). 21 Tribe, American Constitutional Law, 73. 22 See Attorney General of Nova Scotia v. Attorney General of Canada [1957], SCR 31, and P.E.L Potato Marketing Board v. Willis [1952] 2 SCR 392. For the effect of delegation on policy, see Grace Skogstad, 'State Autonomy and Provincial Policy-Making: Potato Marketing in New Brunswick and Prince Edward Island/ CJPS 20, no. 3 (September 1987), 501-23. 23 Duff J., Chemicals Reference [1943] SCR 1,13, cited in Third Report of the Special Committee on Statutory Instruments, 9. 24 The deputy minister of finance was Robert Bryce. Cited in Maxwell Henderson, Plain Talk!: Memoirs of an Auditor General (Toronto: McClelland and Stewart, 1984), 229. 25 J.D.B. Mitchell, The Flexible Constitution/ PL (1960), at 349. 26 Hans J. Michelmann and Jeffrey S. Steeves, The 1982 Transition in Power in

212 Notes to pages 94-8

27

28 29 30

31

32 33 34

35 36 37 38

39

40 41 42 43

Saskatchewan: The Progressive Conservatives and the Public Service/ CPA 28, no. 1 (Spring 1985), 1-23. Henderson, Plain Talk! 173,252-60; and FP, Henderson to Forsey, 31 December 1985: The top bureaucrats ... will never give up trying to hamper the auditor general' (file 59/10: Letters-Misc. [2] 1984-86). Tom Kent, A Public Purpose: An Experience of Liberal Opposition and Canadian Government (Montreal: McGill-Queen's University Press, 1988), 230. Whitaker, The Government Party. Phillip J. Cooper, 'By Order of the President: Administration by Executive Order and Proclamation/ Administration and Society 18, no. 2 (August 1986), 242. Gregory Tardi, 'The State of Law in Government/ paper presented to annual meeting of the Canadian Political Science Association, Kingston, Ontario, June 1991. Henderson, Plain Talk! 186. Molot, 'Administrative Discretion/ 338; following quotation from same source. J.E. Hodgetts, Pioneer Public Service: An Administrative History of the United Cañadas, 1841-1867 (Toronto: University of Toronto Press, 1955), 82; see also Ian Radforth, 'Sydenham and Utilitarian Reform/ in Allan Greer and Ian Radforth, eds., Colonial Leviathan: State Formation in Mid-Nineteenth-Century Canada (Toronto: University of Toronto Press, 1992), 64-102. Third Report, 4:15-16. Currently, in 1995, the number of ministers on the committee may vary between ten and seven. FP, Saywell to Forsey, 11 September 1975 (file 26/20: Newfoundland 1971-79). Senate of Canada, Proceedings of the Special Committee on the Constitution, 21 December 1978, 2:15. See, for example, 'The Crown and the Constitution/ DR 33 (Spring 1953), 3146, reprinted in Eugene Forsey, Freedom and Order: Collected Essays (Toronto: McClelland and Stewart, 1974), 34-49. R. MacGregor Dawson, review of The Royal Power of Dissolution of Parliament in the British Commonwealth, by E.A. Forsey, CJEPS 10, no. 1 (February 1944), 88-93. Senate of Canada, Proceedings of the Special Committee, 2:22. FP, n.d. (file 61/35: Subordinate legislation - correspondence, published material, speech by Forsey, 1975-84). R.F.V. Heuston, Essays in Constitutional Law, 2nd ed. (London: Stevens and Sons, 1964), ch. 3, The Royal Prerogative/ Sir William Wade, Constitutional Fundamentals rev. ed. (London: Stevens and Sons, 1989), 72-5.

Notes to pages 98-101 213 44 Ivor Jennings, Cabinet Government, 3rd ed. (Cambridge: Cambridge University Press, 1959), 2; and J.D.B. Mitchell, The Causes and Effects of the Absence of a System of Public Law in the United Kingdom/ PL (1965), 95-118. 45 Ontario, Royal Commission Inquiry into Civil Rights, 5 vols. (Toronto: Queen's Printer, Ontario, 1968-1971); see review of Report 1 by John Willis, The McRuer Report: Lawyers' Values and Civil Servants' Values,' UTLJ18, no. 4 (1968), 351-60. 46 ÑAPO ... (1989), 60 DLR (4th), 727, 730. See also ÑAPO ... (1989) 1FC 208, and Molot, 'Administrative Discretion.' 47 See Canada, Sessional Papers, No. 20 (1895). Another instance where a committee of cabinet assumed quasi-judicial character occurred in 1945, when petitions to disallow three pieces of Saskatchewan legislation reached Ottawa. As reported by M.J. Coldwell, then CCF parliamentary leader, to T.C. Douglas, Louis St Laurent, the minister of justice, said, 'he could not do other than grant the request [of petitioners to make oral arguments] because, after all, individuals had the right to approach the Crown if they thought themselves aggrieved.' Douglas described as unprecedented the proposal 'for appointing three Cabinet ministers to sit in judgment in a farcial court.' SAB, T.C. Douglas Papers, Coldwell to Douglas, 4 October 1945, and Douglas to Coldwell, 28 September 1945 (R33.1, XLVII, 866(51)). 48 For a comprehensive account of this subject, see David J. Mullan, 'Administrative Tribunals: Their Evolution in Canada from 1945 to 1984,' in Ivan Bernier and Andrée Lajoie, research coordinators, Regulations, Crown Corporations and Administrative Tribunals (Toronto: University of Toronto Press in cooperation with the Royal Commission on the Economic Union and Development Prospects for Canada and the Canadian Government Publishing Centre, Supply and Services Canada, 1985), 155-201. 49 Edward Thompson, The Life of Charles, Lord Metcalfe (London: Faber and Faber, 1937), 389. 50 Peter G. Richards, Patronage in British Government (London: George Allen and Unwin Ltd., 1963), 20. 51 S.E. Finer, 'Patronage and the Public Service: Jeffersonian Bureaucracy and the British Tradition,' Public Administration 30 (Winter 1952), 340. 52 See Christopher Cunneen, King's Men: Australia's Governors-General from Hopetoun to Isaacs (North Sydney: George Allen and Unwin Australia, 1983), 59-61,143-4; Max Harris, 'Monarchy and the Australian Character/ in Geoffrey Dutton, ed., Australia and Monarchy (Melbourne: Sun Books, 1966), 113. 53 O.D. Skelton, Life and Letters of Sir Wilfrid Laurier, 2 vols. (Toronto: McClelland and Stewart [Carleton Library edition], 1965), 2:103.

214 Notes to pages 102-5 54 Ward and Smith, Jimmy Gardiner, 218. The hiring of temporary employees remains a form of patronage even where partisianship is not the criterion. See Globe and Mail, 9 December 1992, A7, 'Quebec Auditor Blasts Favourtism/ 55 SS (1947), c. 4 (Public Service Act); see also Public Service Inquiry Commission (Coldwell Commission) of the Province of Saskatchewan, 'Report' (Regina, 1930), typescript; Nova Scotia, Royal Commission on Provincial Development and Rehabilitation, Report, 2 vols. (Halifax: King's Printer 1944), esp. Report on the Civil Service (R. MacG. Dawson). 56 Statistics cited in this paragraph are from Sharon L. Sutherland and G. Bruce Doern, Bureaucracy in Canada: Control and Reform (Toronto: University of Toronto Press in Cooperation with the Royal Commission on the Economic Union and Development Prospects for Canada and the Canadian Government Publishing Centre, Supply and Services Canada, 1985), 220, notes 13 and 14. More recent statistics are in Donald C. MacDonald, 'Ontario's agencies, boards and commissions come of age/ CPA 36, no. 3 (Fall 1993), 349-63. 57 Reginald Whitaker, 'Between Patronage and Bureaucracy: Democratic Politics in Transition/ fCS 22, no. 2 (Summer 1987), 55-71; S.J.R. Noel, 'Dividing the Spoils: The Old and New Rules of Patronage in Canadian Politics/ 72-95; Sutherland and Doern, Bureaucracy in Canada. See also David J. Mullan, who shares this view: The furtherance of the objectives of the legislation is a legitimate consideration in the naming of members to serve on an administrative tribunal/ in Bernier and Lajoie, Regulations, 184; Thomas Flanagan, 'The Manufacture of Minorities/ in Neil Nevitte and Allan Kornberg, eds., Minorities and the Canadian State (Oakville: Mosaic Press, 1985), 119-20 and 122. 58 Canada, House of Commons, Equality Now! Report of the Special Committee on Visible Minorities in Canadian Society (March 1984), 52. 59 FP, Forsey to Mulroney, 14 August 1985 (file 58/23: House of Commons reform, McGrath Committee, 1985-86). 60 Law Reform Commission of Canada, Report on Independent Administrative Agencies: A Framework for Decision-Making, Working Paper No. 25 (Ottawa, 1985), 77-8. On government and judges, see two reports of the Canadian Bar Association, published in 1985: The Appointment of Judges in Canada and The Independence of the Judiciary in Canada. 61 S.C. Silkin, The Functions and Position of the Attorney-General in the United Kingdom/ The Parliamentarian 59, no. 3 (July 1978), 149-58. A contemplative piece by the then attorney general of Ontario is Ian Scott, 'Law, Policy, and the Role of the Attorney General: Constancy and Change in the 1980s/ IÍTL/39 (1989), 109-26. 62 Nova Scotia, Royal Commission on the Donald Marshall, Jr., Prosecution, Volume

Notes to pages 106-11 215

63 64

65 66 67 68

69 70 71 72

1: Findings and Recommendations (Halifax [Queen's Printer], 1989), 220 and 221. Gordon F. Gregory, 'Police Power and the Role of the Provincial Minister of Justice/ Chitty's Law Journal 27, no. 1 (1979), 14. Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet and Legislature, 1791-1899 (Toronto: University of Toronto Press for the Osgoode Society, 1986), 159-60 and 241. RCMP Public Complaints Commission, Annual Report, 1988-89 (Ottawa: Supply and Services, 1989), 9. Peter C. Stenning, Legal Status of the Police, study prepared for the Law Reform Commission of Canada (Ottawa: Supply and Services, 1982), 78-81. A.K. McDougall, John P. Robarts: His Life and Government (Toronto: University of Toronto Press, 1986), 121. See John T. Saywell, 'Just Call Me Mitch': The Life of Mitchell F. Hepburn (Toronto: University of Toronto Press, 1991), 315; and Richard Gwyn, Smallwood: Tlie Unlikely Revolutionary (Toronto: McClelland and Stewart, 1968), 215. The Position of the Attorney General of Canada on Certain Recommendations of the McDonald Commission (Ottawa: Department of Justice, 1983), 6. Globe and Mail, 18 July 1991, A5. Alastair Davidson, The Invisible State: The Formation of the Australian State, 1788-1901 (Cambridge: Cambridge University Press, 1991), 97. DA, DP, 'Memorandum for the Prime Minister, re: Farewell Dinner for Rt. Hon. Mr. Massey,' signed J.R.N., n.d. (Vll/124/1061, Governor General, n.d. 1947-66,74220-1).

Chapter 6: The Crown-in-Parliament 1 RGG, 'Confidential Draft (circulation restricted to federal and provincial Ministers and officials) on the Monarchy and the Constitutional Amendment Bill/ Federal-Provincial Relations Office, 4 October 1978; 'Excerpt from Verbatim Transcript - Federal-Provincial Conference of First Ministers on the Constitution - October 30-31 and November 1,1978'; Gordon Robertson to Jules Léger, 15 October 1978 (90-91/016, box 13,535.1.2, 'Authorities, Duties and Powers, Constitutional Duties-General, General'). 2 Peter Stursberg, Roland Michener: The Last Viceroy (Toronto: McGraw-Hill Ryerson, 1989), 183. 3 Jules Léger, Jules Leger: Gouverneur general du Canada, 1974-1979: textes et reflexions sur le Canada / Jules Léger: Governor General of Canada, 1974-1979: A Selection of His Writings on Canada (Montreal: Les Editions La Presse, 1982),

216 Notes to pages 111-15

4 5

6 7 8

9 10

11

12

13

Part 3, 'A Pause for Reflection/ 179-230. Part 1, 'Jules Léger: The Man and the Mandate/ 14-53, is written by Jacques Monet, S.J. For example, see Roger Gibbins, Regionalism: Territorial Politics in Canada and the United States (Toronto: Butterworths, 1982). RGG, 'Notes personnelles a la suite de mon entretien du 12 juin avec M. Pitfield/ le 13 juin 1978, 'JL/GB' (90-91/016, box 13,535.1.1, 'Authorities, Duties and Powers, Constitutional Duties-General, General'). FP, Roblin to Forsey, 13 August 1982 (file 58/21, Governor General Ed Schreyer, 1981-1984,1988). Globe and Mail, 27 January 1982; Ottawa Sunday Herald, 26 April 1984. FP, Edward McWhinney to Forsey, 22 January 1982 (file 59/23, McWhinney, Edward, correspondence, papers on constitutional matters, 1980-1984), and Forsey to John Wilson, 31 October 1984 (file 62/36, Wilson, John, University of Waterloo, 1974,1979-87). The reference to refusing assent appears in Edward McWhinney, Canada and the Constitution, 1979-1982: Patriation and the Charter of Rights (Toronto: University of Toronto, 1982), 130-1. RGG, 'Excerpt from Verbatim Transcript...' 3. For Dufferin's opinion on the benefits of travel by the governor general, see Dufferin to Macdonald, 24 July 1872, Sir Joseph Pope, Correspondence of John A. Macdonald: Selections from the Correspondence of the Rt. Hon. Sir John Alexander Macdonald. (Toronto: Oxford University Press, 19[21]), 172-4. For statistics on travel and entertainment of recent governors general, see Frank MacKinnon, The Crown in Canada (Calgary: McClelland and Stewart West, 1976), 147-8, and Robert Speaight, Vanier: Soldier, Diplomat and Governor General (Toronto: Collins, 1970), ch. 22, 'Coast to Coast/ Robert Blake, The Crown and Politics in the Twentieth Century/ in Jeremy Murray-Brown, ed., The Monarchy and Its Future (London: George Allen and Unwin, 1969), 11. Baron Stockmar was family adviser to the Coburgs and sometime constitutional tutor to Prince Albert. Gladstone described Stockmar's view of the British constitution as 'only an English top dressing on a German soil/ Quoted in E.L. Woodward, The Age of Reform, 1815-1870, vol. 13 of Oxford History of England (Oxford: Clarendon Press, 1938), 102. Quoted in FP, J.R. Mallory to Forsey, 10 October 1973 (file 43/15, Mallory, James R., 1963-1977). A description of the vice-regal functions of Canada's second chief justice is found in Gordon Bale, Chief Justice William Johnstone Ritchie: Responsible Government and Judicial Review (Ottawa: Carleton University Press, 1991), 179-80. Robert Blackburn, The Meeting of Parliament (Brookfield, Vt: Dartmouth, 1990), 56.

Notes to pages 115-17 217 14 Vernon Bogdanor, 'Britain: The Political Constitution/ in Bogdanor, ed., Constitutions in Democratic Politics (Brookfield, Vt: Gower, 1988), 55. 15 J. Noel Lyon, The Central Fallacy of Canadian Constitutional Law/ McGLJ 22 (1976), 45 and 42-3. 16 MJ.C. Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967), 109. 17 J. Murray Beck, The Government of Nova Scotia (Toronto: University of Toronto Press, 1957), 46. 18 Gary O'Brien, Tre-Confederation Parliamentary Procedure: The Evolution of Legislative Practice in the Lower Houses of Central Canada, 1792-1866' (Ph.D. dissertation, Carleton University, 1988). I am indebted to Dr O'Brien for making available to me a copy of his dissertation. See also J.C. Beaglehole, The Royal Instructions to Colonial Governors, 1783-1854' (Ph.D. thesis, University of London, 1929). Phillip A. Buckner notes that 'a governor was not usually sent to his post equipped with detailed instructions on what policies to pursue... [nor were his] formal instructions ... supplemented by detailed advice from his superiors in London.' The Transition to Responsible Government: British Policy in British North America, 1815-1850 (Westport, Conn.: Greenwood Press, 1985), 51. 19 O'Brien, Pre-Confederation Parliamentary Procedure, 145. 20 Ibid., 52-3; FP, unsigned, undated typed comments 'Appendix B' (file 57/17, Corrections to Canadians and Their Government: Towards a New Canada, Canadian Bar Association report, etc., 1979) and FP, 'Royal Assent: The Limits of Executive Discretion/ discussion paper prepared at the request of the Association of Parliamentary Counsel, 20 August 1983 (file 57/24, The Crown, The Queen: formal functions, 1973-1988). Full citation of the first publication is Allan S. Merritt and George W. Brown, Canadians and Their Government, rev. ed. (Toronto: J.M. Dent and Sons, 1974). 21 RGG, Arthur Beauchesne (clerk of the House of Commons) to John Chisholm (assistant deputy minister, Department of Justice), 4 March 1929 and enclosure, Beauchesne's Parliamentary Rules and Forms, 2nd ed. (1927), 343 (90-91/016, box 16, 540.5.2, 'Constitutional Duties, Acts and Legislation, Signing Authority, Royal Assent, 1929-77'). 22 Lewis Namier, The Structure of Politics at the Accession of George III (London: Macmillan, 1929), 1: 182; see also Henry Parris, Constitutional Bureaucracy: The Development of British Central Administration since the Eighteenth Century (London: George Allen & Unwin, 1969), esp. ch. The Origins of the Permanent Civil Service, 1780-1830.' 23 The crisis is explored in Forsey, The Royal Power of Dissolution of Parliament in

218 Notes to pages 118-21

24

25

26 27 28 29 30

31

32 33 34 35

36 37

the British Commonwealth (Toronto, Oxford University Press, 1943); dates for abolition of ministerial by-elections are found in Appendix D. SAB, Gardiner Papers, Speech to Kiwanis Club at Winnipeg, 4 September 1951. See also House of Commons Debates, 27 November 1867,141, where Edward Blake speaks on the danger of 'control of the House by placemen' in the absence of ministerial by-elections. RGG, 'Excerpt from notes for Governor General's Meeting with the Prime Minister on Oct. 8,1975' (90-91/016, box 13, 526.5, 'Authorities, Duties and Powers, Appointments, Cabinet Ministers, General'). Legislature of Manitoba, 39 Viet, cap. 28. P.B. Waite, ed., The Confederation Debates in the Province of Canada, 1865 (Toronto: McClelland and Stewart, 1963), 147. Senate Debates, 9 October 1990, 2411, 2415, 2443. Robert A. MacKay, The Unreformed Senate of Canada, rev. ed. (Toronto: McClelland and Stewart, 1963), 28. Joseph Pope, ed., Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act (Toronto: Carswell Co. Ltd., 1895), 58 and 119. At the first of this century's many Dominion-provincial conferences to consider constitutional reform, in 1927, Mackenzie King rejected the elected Senate for the same reason Macdonald had: 'It was at variance with the British system of government.' Canada, Dominion-Provincial Conference, November 3-10,1927, December 9-13,1935, January 14-15,1941 / Conferences federalesprovinciales, du 3 au novembre 1927, du 9 au 13 décembre 1935, les 14 et 15 Janvier, 1941 (Ottawa: King's Printer, 1951) (hereafter Dominion-Provincial Conferences 1927,1935,1941); Dominion-Provincial Conference, 1927,10. Quoted in Eugene Forsey, 'Appointment of Extra Senators under Section 26 of the British North America Act,' in Forsey, Freedom and Order: Collected Essays (Toronto: McClelland and Stewart, 1974), 54. Senate Debates, 9 October 1990, 2589. O'Brien, Pre-Confederation Parliamentary Procedure, 68. FP, Senator John Stewart to Forsey, 11 May 1982 (file 61/35, Subordinate legislation - published material, speech by Forsey, 1975-1984). For a customary sweeping analysis of one resource (land) and its impact on policy, see H.A. Innis, The Place of Land in North American Federations,' Canadian Historical Review 21, no. 1 (March 1940), 60-7. Mark Sproule-Jones, The Enduring Colony? Political Institutions and Political Science in Canada,' Publius 14 (Winter 1984), 101. Geoffrey Marshall, 'Canada's New Constitution (1982): Some Lessons in Constitutional Engineering/ in Vernon Bogdanor, ed., Constitutions in Democratic Politics (Brookfield Vt: Gower, 1988), 159.

Notes to pages 121-4

219

38 Quoted in John George Bourinot, Parliamentary Procedure and Practice, 2nd ed. (Montreal: Dawson Bros., 1892), 31. 39 Gerald M. Craig, ed., Lord Durham's Report (Toronto: McClelland and Stewart, 1963), 144-5. 40 Federal Government Reporting Study: A Joint Study by the Office of Auditor General of Canada and the United States Government Administration Office (Ottawa: Auditor General's Office, 1986), 6. See also J.A. Griffith, The Place of Parliament in The Legislative Process/ MLR 14 (1951), 279-96 and 425-36. 41 Seminar Proceedings, Canadian Study of Parliament Group, 2 December 1992, 'Year 7: A Review of the McGrath Committee Report on the Reform of the House of Commons/ 26. 42 Barbara A. Black, The Constitution of the Empire: The Case for the Colonists/ University of Pennsylvania Law Review 124 (1976), 1173. 43 Senate Debates, 28 February 1952, 2, and RGG r typescript of CBC News Magazine (n.d. [pre-1956], file 1988-89/081, box 122,1850-B 'Duties and Functions of the Governor General, 1916-660; 'Inaugural Address/ in Michel Vanier and George Cowley, eds., Only to Serve: Selections of Addresses of Governor General Georges P. Vanier (Toronto: University of Toronto Press, 1970), 3. Before becoming governor general, Vincent Massey wrote about the winning of sovereignty in an essay 'Status and Stature/ published in his On Being Canadian (Toronto: J.M. Dent and Son, 1948), 69-79. R.G. (later Lord) Casey, subsequently governor general of Australia, found On Being Canadian 'rather dull and with nothing illuminating to say. Just another book/ NLA, MS6150, Casey Diaries, vol. 11,12 January 1949. 44 RGG, Red fern memo no. 12. 45 Installation addresses are found in Senate Debates: 18 April 1967 (Michener), 14 January 1974 (Leger), 22 January 1979 (Schreyer), 22 May 1984 (Sauvé), and 30 January 1990 (Hnatyshyn). A description of nineteenth-century installations is found in the Gazette (Montreal), 14 November 1898. 46 Redfern memo no. 4, 7. 47 Léger, Governor General of Canada, 192-4; FP, Forsey to Edward Moroney, 21 December 1978 (file 59/7, Letters, Constitutional, 1978-84). 48 On the British procedure, see Blackburn, The Meeting of Parliament, 48-9 and 51-3; FP, J.R. Mallory to Forsey, 18 April 1984 (file 59/19, Mallory, Jim, 19801987). Shuldham Redfern claimed that it was 'largely at [hisl instance, that The King should undertake some official duties to indicate the fact of his sovereignty' (Redfern memo no. 11). 49 FP, John A. Holtby to Forsey, 8 February 1984 (file 57/11, Constitution, general, 1984-1989). On this point, Holtby was explaining the arguments others make for reforming the procedure of royal assent.

220 Notes to pages 125-9 50 Senate Debates, 10 May 1983, 5613 (Royce Frith, deputy leader of the government). 51 FP, John A. Holtby to Forsey, 8 February 1984; Gwen Ronyk, deputy clerk, Legislature of Saskatchewan, to C.B. Koester, clerk of the House of Commons, 14 November 1985 (file 57/24, The Crown, The Queen: formal functions, 1973-1988); 'Survey of Participation of Lieutenant Governor in Royal Assent Proceedings/ n.d., supplied by Office of the Clerk, Saskatchewan Legislative Assembly, May 1994. 52 For example, RGG, memo to His Excellency, 4 April 1973 (90-91/016, box 20, file 540.5.1, vol. 2, 'Royal Assent'). 53 Léger, Governor General of Canada, 20. 54 Ibid., 218; RGG, 'Relations with the Crown' (n.d.), 44 (90-91/016, box 13, file 526.1, 'Authorities, Duties and Powers, Appointments - Senators and MPs, General'); 'Memorandum for: His Excellency, Subject: Notes for your meeting with Mr. Pitfield, Monday, October 6th/ 3 October 1975 (90-90/016, box 13, 526.5, 'Authorities, Duties and Powers, Appointments - Cabinet Ministers, General'); and 'Memorandum to His Excellency/ 26 April 1963 (198889/081, box 122, file 1850.8, 'Duties and Functions of the Governor General, 1916-66'). 55 MacKinnon, The Crown in Canada, 112. 56 Robert Sheppard and Michael Valpy, The National Deal: The Fight for a Canadian Constitution (Toronto: Fleet Books, 1982), 1-5. 57 Redfern memo no. 15,11. 58 DP, Vanier to Diefenbaker, 12 September 1959 (Prime Ministerial Papers, vol. 110, file 311.2, 'Federal Government Executive, The Crown in Canada, The Governor General, 1957-63'), 094353-4 ; Senate of Canada, Proceedings of the Special Senate Committee on the Constitution, 21 November 1978, 2:18. 59 BP, vol. 10, Butler to J.E. Charette (director, Programme Analysis Division, Treasury Board), 31 October 1963; Vanier to the Secretary, 5 and 8 July 1965; the Secretary to Vanier, [15] July 1965. 60 RGG, 'Memorandum for: His Excellency, Subject: Notes for your meeting with Mr. Pitfield, Monday, October 6th/ 3 October 1975; handwritten note, 28 May 1979; 'Note ä M. Butler, Sujet: Changement de gouvernement' (C. Lambert), 23 mai 1979; handwritten notes, headed '1 pm May 23 - following Federal Election' (90-91/016, box 13, 526.5.4, 'Authorities, Duties and Powers, Appointments - Senators, and MPs, Cabinet Ministers, Swearing in new Cabinet, Rt. Hon. Joe Clark, 4 June 1979'). 61 DP, Norman Ward to J.G. Diefenbaker, 12 August 1962 (Prime Ministerial Papers, vol. 110, file 311.2, 'Federal Government Executive, The Crown in

Notes to pages 129-31 221

62

63

64

65 66 67 68 69

70

71 72

Canada, The Governor General, 1957-63'), 094202; Diefenbaker to Ward, 25 August 1962, 094201. RGG, memo prepared by Barwick for Dean Rusk, copy forwarded by the chief justice of Canada, Bora Laskin to His Excellency, Jules Léger, 19 April 1978 (90-91/016, box 13, 535.1.1, 'Authorities, Duties and Powers, Constitutional Duties: General, General'). FP, J.R. Mallory to Forsey, 8 December Í980 (file 59/19, Mallory, Jim, 19801987). Recalling a discussion he had had with the then governor general, Mallory said Kerr told him that 'what professors like you and Geoffrey Sawer don't understand about [1975] is that it was a question of power between Whitlam, and [Malcolm] Fräser and me.' Campbell Sharman, 'Constitutional Politics in Australia (1900)/ in Vernon Bogdanor, ed., Constitutions in Democratic Politics (Brookfield, Vt: Gower, 1988), 116. For a relevant comparative treatment, see Sharman, Tarliamentary Federations and Limited Government: Constitutional Design and Redesign in Australia and Canada,' Journal of Theoretical Politics 2, no. 2 (1990), 205-30; Senate Debates, 4 October 1990, 2394 (Molson). Letter to the editor, Globe and Mail, 5 September 1984, 7. FP, Peter Russell to Forsey, 7 September 1984 (file 62/25, Universities. Toronto 1981-1987). Norman Ward and David Smith, Jimmy Gardiner: Relentless Liberal (Toronto: University of Toronto Press, 1990), 317-18. RGG, 'Constitutional Questions, Dissolution, Lord Byng's Decision,' 18 January 1926, memo by W.F. Sladen, secretary to the governor general (1400 D). Sir Zelman Cowen, 'The Crown and Its Representative in The Commonwealth/ speech to annual conference, Law Society of Scotland, April 1985, in FP (file 57/11, constitution, general 1984-1989). Blackburn, The Meeting of Parliament, 19; see also Norman Ward, 'The Formative Years of the House of Commons, 1867-91,' CJEPS 18, no. 4 (November 1952), 431-51. For a sample of British opinion on the phenomenon, see Anthony King, ed., Tfo British Prime Minister, 2nd ed. (London: Macmillan, 1985), esp. ch. 7, R.H.S. Grossman, 'Prime Ministerial Government': '[The prime minister] is now the apex not only of a highly centralized political machine, but also of an equally centralised and vastly more powerful administrative machine ... Loyalty has become the supreme virtue, and independence of thought a dangerous adventure' (189). Buckner, Transition to Responsible Government, 56. Globe and Mail, 21 October 1993, A4, 'Chretien may play waiting game with NAFTA law.' The problems associated with proclaiming acts is more complicated than this. There is, for instance, the phenomenon of proclaiming

222 Notes to pages 132-9 selected sections of acts, which can have the effect of repealing other sections. See Lyon, 'Constitutional Law/ 49; and Harry Evans, 'Parliament and the Legislative Power/ The Table 57 (1989), 54-6. 73 Samuel V. LaSelva, 'Only in Canada: Reflections on the Charter's Notwithstanding Clause/ DR, 63, no. 3 (Autumn 1983), 383-98. 74 FP, Roblin to Forsey, 13 August 1982 (file 58/21, Governor General Ed Schreyer, 1981,1984,1988). Chapter 7: Law, Judiciary, and the Crown 1 The authoritative exposition of this subject is W.L. Lederman, The Independence of the Judiciary/ CBR 34, nos. 7 and 10 (1956), 769-809 and 1139-79. See also W.L. Lederman, 'The Supreme Court of Canada and the Canadian Judicial System/ Proceedings and Transactions of the Royal Society of Canada, 4th series, vol. 13 (1975), 209-25. 2 Carol Harlow, 'Power from the People? Representation and Constitutional Theory/ in Patrick McAuslan and John F. McEldowney, eds., Law, Legitimacy and the Constitution (Essays Marking the Centenary ofDicey's Law of the Constitution) (London: Sweet and Maxwell, 1985), 69-70. 3 A.V. Dicey, The Law of the Constitution, intro. by E.C.S. Wade, 10th ed. (London: Macmillan and Co., 1962), 203. 4 Sir Owen Dixon, Jesting Pilate (Melbourne: The Law Book Co., 1965), 43. 5 Rowell-Sirois, Report of Proceedings, 23 March 1938, 5563-4. 6 Sir Ivor Jennings, The Law and the Constitution, 5th ed. (London: University of London Press, 1959), esp. 103-36; Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics (Toronto: Oxford University Press, 1991). 7 Reference re: Amendment of the Constitution of Canada (1982), 125 DLR (3d), 103. The recognition of conventions is no less controversial when carried out by politicians. See Charles Sampford and David Wood, 'Codification of Constitutional Conventions in Australia/ PL (1987), 231-44. 8 Eugene Forsey, The Courts and the Conventions of the Constitution/ University of New Brunswick Law Journal (1984), 40. 9 Lederman, 'Independence of the Judiciary/ 1159-60. 10 Macdonald to Lansdowne, 23 February 1885 in Sir Joseph Pope, Correspondence ...,335. 11 Peter H. Russell, The Effect of a Charter of Rights on the Policy-Making Role of Canadian Courts/ CPA 25, no. 1 (Spring 1982), 9. 12 Paul J. Mishkin, 'Autonomy in Decentralized Units in the United States of America/ in International Association of Constitutional Law, Federalism and

Notes to pages 140-2

13 14 15 16 17

18 19 20

21

22

23

223

Decentralization: Constitutional Problems of Territorial Decentralization in Federal and Centralized States (Fribourg: Editions universitaires, 1987), 242. Louise Weinberg, 'A New Judicial Federalism?' Daedalus 107, no. 1 (Winter 1978), 129-41. Lord Devlin, 'Judges and Lawmakers/ MLR 39, no. 1 (January 1976), 6. EP, MG31 E72 (file 45.8, 'Lord Devlin's Article, Judges' Mtg., Quebec, Aug. 1975'). Re Initiative and Referendum Act (1919), AC 935. Bonanza Creek Gold Mining Co. Ltd. v. The King (1916) 1 AC, 580. Stephen A. Scott argues that when Bonanza Creek is read carefully, it constitutes less of a restraint on the prerogative power of the Crown (in right of Canada) than is sometimes suggested. 'Queens as Nursing-Mothers: Federal Public Expenditure under the Canadian Constitution/ paper delivered at a conference on The Power of the Purse: Financial Incentives as Regulatory Instruments/ Calgary, 12-13 October 1990), 79. Hull v. McKenna (1923) IR, 403. G. Blaine Baker, The Reconstitution of Upper Canadian Legal Thought in the Late-Victorian Empire/ Law and History Review 3 (1985), 251, 251n, and 269n. Lord Shaw, 'Law as a Link of Empire/ CBR 1 (1923), 19-32. According to Macdonald, federalism was a contributing factor too: 'It was very important - especially in a country like ours, to have such a means of uniformity of law as to have the decision of the great Courts of England as our authority.' House of Commons Debates, 18 March 1870, 509. The Colonial Laws Validity Act, 1865, 28 and 29 Viet., cap. 63, went far to regulate, and reduce, colonial-imperial conflict. According to K.C. Wheare, 'section 3 asserts the wide proposition that no colonial law shall be declared void on the ground of repugnancy to the law of England, unless it is repugnant to an imperial act/ Statute of Westminster and Dominion Status, 4th ed. (Oxford: Oxford University Press, 1949), 77 (emphasis added). For a discussion of the pre-Confederation period, see J.E. Read, The Early Provincial Constitutions/ CBR 26, no. 4 (April 1948), 621-37. This premise lay at the root of government activity detailed, for example, in Carmen D. Baggaley, The Emergence of the Regulatory State in Canada, 18671939, Technical Report No. 15 (Ottawa: Economic Council of Canada, 1981). See also the opening pages of Theodore J. Lowi, The Welfare State, The New Regulation, and the Rule of Law/ in Allan C. Hutchinson and Patrick Monahan, eds., TJw Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987), 17-58. Andrée Lajoie, Pierrette Mulazzi, and Michéle Gamache, Tolitical Ideas in Quebec and the Evolution of Canadian Constitutional Law, 1945 to 1985,' in Ivan Bernier and Andrée Lajoie, research coordinators, The Supreme Court of

224 Notes to pages 143-6

24 25

26 27 28 29

30 31 32

33 34

35

Canada as an Instrument of Political Change (Toronto: University of Toronto of Toronto Press in cooperation with the Royal Commission on the Economic Union and Development Prospects for Canada, Supply and Services Canada, 1986), 27. The second quotation is a translation of a passage from Vincent Lemieux, 'Les Gouvernements et leurs lois/ Interface (September-October 1984), 13, in ibid., 85, n!04. Hull v. McKenna, 404-5. R.B. Haldane, The Dedicated Life (London: Guildford Press, 1907), quoted in Jonathan Robinson, 'Lord Haldane and the British North America Act/ UTLJ 20 (1970), 57 and 67. Bonanza Creek, 566. Haldane, Education and Empire (London: Plymouth Press, 1902), quoted in Robinson, 'Lord Haldane/ 59. E.E. Palmer, 'Federalism and Uniformity of Laws: The Canadian Experience/ Law and Contemporary Problems 30 (1965), 252-3. Jean Beetz, 'Les Attitudes changeantes du Quebec a l'endroit de la Constitution de 1867/ in P.-A. Crepeau and C.B. Macpherson, eds., The Future of Canadian Federalism / U Avenir du fédéralisme canadien (Toronto: University of Toronto Press / Les presses de l'Université de Montreal, 1965), 135 and 127. Whether Quebec's governments were as passive before the Quiet Revolution as this quotation and much of the standard literature suggests is now being questioned. See, for example, Ruth Dupré, 'Was the Quebec Government Spending So Little? A Comparison with Ontario, 1867-1969/ JCS 28, no. 3 (Fall 1993), 45-61. Nadan v. The King (1926) AC 482; British Coal Corporation v. The King (1935) AC 500. Baggaley, The Regulatory State, 269. For further on this episode, see Barry L. Strayer, The Canadian Constitution and the Courts: The Function and Scope of Judicial Review, 3rd ed. (Toronto: Butterworths, 1988), 22-8; and Gordon Bale, Chief Justice William Johnstone Ritchie: Responsible Government and Judicial Review (Ottawa: Carleton University Press, 1991), ch. 10. RGG, O'Grady Haly to Alexander Mackenzie, 28 September 1875 (G18, vol. 68, Supreme Court Bill, 1875). Bale, Ritchie, 97. The accession of judicial review as 'a substitute for the failing remedy of disallowance' is explored by Jennifer Smith in The Origins of Judicial Review in Canada/ CJPS 16, no. 1 (March 1983), 115-34. See James McL. Hendry, Memorandum on Office of Lieutenant Governor: Its Constitutional Character and Functions (Ottawa: Queen's Printer, 1955) and Canada, Memorandum on Dominion Power of Disallowance of Provincial Legislation,

Notes to pages 146-9

36 37 38 39

40

41 42 43

44

225

new ed. (Ottawa: Kings Printer, 1946); and G.V. LaForest, Disallowance and Reservation of Provincial Legislation (Ottawa: Queen's Printer, 1955). Barry L. Strayer, Judicial Review of Legislation in Canada (Toronto: University of Toronto Press, 1968), 182. Ibid. 185. Attorney-General for Ontario v. Attorney-General for Canada (1912) AC 581 and 583. Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet and Legislature, 1791-1899 (Toronto: University of Toronto Press, 1986), 274 and 275. In the 1880s Sir Horace Davey and still plain Mr R.B. Haldane accepted a general retainer from the Province of Ontario to represent it in argument before the Judicial Committee. Both were later appointed to the Committee, Haldane joining in 1912 as lord chancellor. FP, telex Forsey to Peckford; see also telex Peckford to Forsey, 21 May 1988 (file 60/5, Newfoundland offshore oil reference, 1982) and Senate Debates, 25 May 1982, 4185. The offshore dispute itself turned on the subject of convention. The contradictory findings of the Newfoundland Court of Appeal and the Supreme Court of Canada on whether Newfoundland exercised sovereignty over the continental shelf in 1949, when it joined Canada, arose out of different interpretations of the effect Commission Government after 1933 had on constitutional convention. William C. Gilmore, 'Law, Constitutional Convention, and the Union of Newfoundland and Canada/ Acadiensis 18, no. 2 (Spring 1989), 111-26. Pope, Correspondence ..., 452 (Macdonald to Sir John Thompson, 24 July 1889). FP, Forsey to Garfield Barwick, 21 August 1985 (file 56/11, Barwick, Sir Garfield, 1983-1985). Ontario Lawyers Weekly 5, no. 13 (26 July, 1985), 1, quoted in Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Wall and Thompson, 1989), 114n. Richard Goreham, Language Rights and the Court Challenges Program: A Review of Its Accomplishments and Impact of Its Abolition, Report submitted to the Commissioner of Official Languages (Ottawa), 1992), 3. Quotations and statistics in the next two paragraphs come from this report. The program's pre-Charter origins are often overlooked. See Dale Gibson, The Deferential Trojan Horse: A Decade of Charter Decisions/ CBR 72, no. 4 (December 1993): 'A major government initiative, known as the Court Challenges Program, was established providing arm's-length funding and advice for important Charter Challenges to federal legislation' (422). In 1977, the Trudeau Government publicly declined to attack Bill 101 head-on: 'M. Trudeau devait ajouter... que son gouvernement n'ecarte pas la possibilité de fournier une

226 Notes to pages 151-4

45 46 47

48

49 50 51 52

53 54 55

56 57

aide financiére aux groupes désireux d'entreprendre des contestations juridiques/ Le Devoir, 7 October 1977,1 and 6. Russell, The Effect of a Charter of Rights/ 2. Joseph Eliot Magnet, The Presumption of Constitutionality/ Osgoode Hall Law Journal, 18, no.l (March 1980), 93n. Russell, The Effect of a Charter of Rights/ 6 and 8. There is a considerable body of literature on judges as royal commissioners; an early statement of the problem is in R. MacGregor Dawson, The Principle of Official Independence (London: P.S. King and Son, 1922), ch. 5. Globe and Mail, 25 February 1994, Al-2. See also, R.C.B. Risk, 'Lawyers, Courts and the Rise of the Regulatory State/ DLJ 9, no. 1 (November 1984), 31-54. Globe and Mail, 16 June 1993, Al. Quebec Inc. c. Regie des Permis d'Alcool du Quebec [1993] RJQ 1877a 1907 (CS), 1899. Ibid., 1898. Globe and Mail, 7 June 1982 (editorial) and 9; ibid., 3 September 1982,5. Another threat to judicial independence may arise where 'the judicial ideology of the chief judge [of the superior courts becomes] the only truly independent ideology on the court' (Mr Justice David Marshall, Ontario Court's General Division), Globe and Mail, 9 June 1993, A4. "Parliament is the final arbiter of good behaviour/ said Judge Berger. This is true. It is not the case, however, that only Parliament may remove a superior court judge. See W.P.M. Kennedy, 'Removal and Tenure of Judges/ UTLJ6, no. 2 (1946), 463-7. Judge Berger resigned from the bench in 1983. Quebec Inc. 1899. Northern Frontier, Northern Homeland: The Report of the Mackenzie Valley Pipeline Inquiry, Volume One (Ottawa: Supply and Services, 1977). Quoted in A.E. Dick Howard, 'Garcia: Of Federalism and Constitutional Values/ Publius 16 (Summer 1986), 20. Garcia reversed the decision in National League of Cities v. Usery (1976) 96 S. Ct. 2465, in which the powers of Congress had been curbed 'in the name of federalism/ But National League of Cities was an aberrant and 'embattled opinion from the beginning.' Ibid., 18. Katherine Swinton, 'Federalism and Provincial Government Immunity/ ITTL/29(1979),2. See, for example, Colin H.H. McNairn, Governmental and Intergovernmental Immunity in Australia and Canada (Toronto: University of Toronto Press, 1977), and Peter W. Hogg, Liability of the Crown, 2nd ed. (Toronto: Carswell, 1989).

Notes to pages 155-60 227 58 FP, Rand to Forsey, 2[7] July 1961 (file 25/17, '"Good Behaviour", Clause for Appointing Public Officials/ 1961,1967). 59 McGuire v. McGuire [1953] 2 DLR 394 (CA), quoted in Elizabeth Edinger, Territorial Limitations on Provincial Powers/ OLR 14, no. 1 (1982), 64. Chapter 8: Compound Monarchy and Canadian Federalism 1 CO 42/780,1885 Despatches January-June, minute, 23 April 1885, on Lansdowne to Earl of Derby (secretary of state for the colonies), 8 April 1885. 2 CO 42/768,1881 Offices ... Law officers, minute, 5 December 1881, on Citizens Insurance Co. v. Parsons (1881) (7 AC 96). Federal-provincial conflict over the regulation of insurance proved to be protracted; see, Carmen D. Baggaley, The Emergence of the Regulatory State in Canada, 1867-1939 (Ottawa: Economic Council of Canada, 1981), 232-42. 3 House of Commons Foreign Affairs Committee, First Report, Session 198081 (HC42), British North America Acts: The Role of Parliament, vols. 1 and 2 (London: HMSO, 1981); Foreign Affairs Committee, Second Report, Session 1980-81 (HC 295), Supplementary Report on the British North America Acts: The Role of Parliament (London: HSMO, 1981). 4 FP, Edward McWhinney to Forsey, 22 January 1982 (file 59/23, McWhinney, Edward, correspondence, papers on constitutional matters, 1980-1984). 5 William S. Livingston, federalism and Constitutional Change (Oxford: Clarendon Press, 1956), ch. 1. 6 Geoffrey Marshall, 'Kenneth Clinton Wheare/ Proceedings of the British Academy 67 (1981), 497, and 'Canada's New Constitution (1982): Some Lessons in Constitutional Engineering/ in Vernon Bogdanor, ed., Constitutions in Democratic Politics (Brookfield, Vt: Gower, 1981), 159. 7 Sir Owen Dixon, 'Marshall and the Australian Constitution/ in Jesting Pilate (Melbourne: Law Book Co., 1965), 166. 8 K.C. Wheare, Federal Government, 4th ed. (New York: Oxford University Press, 1964), 17-20. 9 See ch. 1, n30. 10 Garran, later Sir Robert, was secretary to the drafting committee of the federal convention, 1897-8, became the Commonwealth's first solicitor general and, with Sir John Quick, 'wrote the first classic treatise on the Constitution (Annotated Constitution of the Australian Commonwealth [Sydney, 1901]).' Geoffrey Sawer, Australian Peder al Politics and Law, 1901-1929 (Melbourne: Melbourne University Press, 1956), 4. 11 ANL, Pamphlet 4, no. 91, 'A Problem of Federation under the Crown: The

228 Notes to pages 160-3

12 13

14 15 16

17

18

19 20 21

22

23

Representation of the Crown in Commonwealth and States' (Brisbane, 1895), 3. Quotations in the next several paragraphs are from this publication. John T. Saywell, The Office of Lieutenant-Governor: A Study in Canadian Government and Politics (Toronto: University of Toronto Press, 1957), 263. CO42/816, Ontario Sessional Papers, No. 37, John Beverley Robinson (Lieutenant-Governor of Ontario) to Secretary of State (Thomas White), 22 January 1886,18; Paul Romney, Mr Attorney: The Attorney General for Ontario, in Court, Cabinet and Legislature, 1791-1899 (Toronto: University of Toronto Press, 1986), 247. Sir Owen Dixon, 'Aspects of Australian Federalism/ in fest ing Pilate, 114. NAL, Papers of L.F. Crisp, MS5243, Box 60, uncatalogued notes, n.d. Ben W. Boer and Donna Craig, 'Federalism and Environmental Law in Australia and Canada/ in Bruce Hodgins, John J. Eddy, Shelagh D. Grant, and James Struthers, eds., Federalism in Canada and Australia: Historical Perspectives, 1920-1988 (Peterborough: Frost Centre for Canadian Heritage and Development Studies, 1989), 313. See 'Memorandum on Representation of the Maritime Provinces/ Canadian Sessional Papers, 1914, No. 118a, reprinted in R. MacGregor Dawson, ed., Constitutional Issues in Canada, 1900-1931 (London: Oxford University Press, 1933), 173-5. Canada, Department of External Affairs, Documents on Relations between Canada and Newfoundland: vol. 2,1940-49, Confederation, Part I, Paul Bridle, ed. (Ottawa: Supply and Services Canada, 1984), under-secretary of state for external affairs (N.A. Robertson) to prime minister, 25 September 1945,170. Ibid., high commissioner (C.J. Burchell) to under-secretary of state for external affairs (N.A. Robertson), 16 November 1943, 87. Richard Cartwright, Reminiscences (Toronto: William Briggs, 1912), 96. A.G. Bailey, 'Evidences of Culture Considered as Colonial/ in Culture and Nationality: Essays by A.G. Bailey (Toronto: McClelland and Stewart, 1972), 178-9. RGG, 30 April 1923 (RG7, G21, vol. 7, file 24B) and 'Memorandum on The Expediency of uniting under One Government the three Provinces of Nova Scotia, New Brunswick and Prince Edward Islands': 'It is necessary for us to organize a government [which] continues to afford an advantageous contrast with the States' (RG7, G18, vol. 22). See, for example, Christopher Armstrong, The Politics of Federalism: Ontario's Relations with the Federal Government, 1867-1942, Ontario Historical Studies Series (Toronto: University of Toronto Press, 1981), and David E. Smith, ed., Building a Province: A History of Saskatchewan in Documents (Saskatoon: Fifth House Publishers, 1992).

Notes to pages 164-7 229 24 A.R.M. Lower, 'Nonsense - our big provinces behave like imperial powers and should be carved up/ Maclean's magazine, 15 October, 1948, 7, 77-9; Harold Innis, 'On the Economic Significance of Cultural Factors/ in Innis, ed., Political Economy in the Modern State (Toronto: Ryerson Press, 1946), 88; and Frank MacKinnon, The Crown in Canada (Calgary: McClelland and Stewart, 1976), 115. 25 Garth Stevenson, 'Intrastate Federalism in Nineteenth Century Canada/ paper presented to annual meeting of the Canadian Political Science Association, Charlottetown, 2 June 1992,16. 26 Rowell-Sirois, Report of Proceedings, 22 March 1938, 'Submission by the Associated Boards of Trade of East British Columbia/ 5426. See also Gary Levy and Graham White, eds.; Provincial and Territorial Legislatures in Canada (Toronto: University of Toronto Press, 1989), passim. 27 See Campbell Sharman, Tarliamentary Federations and Limited Government: Constitutional Design and Re-design in Australia and Canada/ Journal of Theoretical Politics 2, no. 2 (1990), 205-30, and C.J.G. Sampford, 'Responsible Government and the Logic of Federalism: An Australian Paradox?/ PL (Spring 1990), 90-115. 28 Alastair Davidson, The Invisible State: The Formation of the Australian State, 1788-1901 (New York: Cambridge University Press, 1991), 121. 29 Ian Radforth, 'Sydenham and Utilitarian Reform/ in Allan Greer and Ian Radforth, eds., Colonial Leviathan: State Formation in Mid-Nineteenth Century Canada (Toronto: University of Toronto Press, 1992), 82; Saskatchewan, The Municipal Commission, Report, 30 August, 1907, 24. 30 Lewis Herbert Thomas, The Struggle for Responsible Government in the North-West Territories (Toronto: University of Toronto Press, 1956). See also R.G. Robertson, The Evolution of Territorial Government in Canada/ in J.H. Aitchison, ed., The Political Process in Canada: Essays in Honour of R. MacG. Dawson (Toronto: University of Toronto Press, 1963), 136-52. 31 'Abolition of Dual Representation: Mr Laurier's Speech on that Question, delivered on the 24th November 1871, in the Legislative Assembly of the Province of Quebec/ in Ulric Barthe, Wilfrid Laurieron the Platform, 1870-1890 (Quebec: Turcotte and Menard's Steam Printing Office, 1890). 32 Canada and Its Provinces: A History of the Canadian People and Their Institutions by One Hundred Associates, 22 vols. (Toronto: Glasgow Book Co., 1914), 14: The Atlantic Provinces/ Part 2, 385. 33 Bailey, 'Literature and Nationalism in the Aftermath of Confederation/ 64. 34 NLA, Novar Papers, Munro Ferguson to Alfred Lord Milner, 22 October 1918 (696/8802-7), and [E.W.H.] Grigg to private secretary, Colonial Office, n.d. [1919] (696/8797-9). Lieutenant-Colonel Edward Grigg toured Canada and

230 Notes to pages 167-8 Australia in 1919 and 1920 with the Prince of Wales; in 1925 he was appointed governor of Kenya. Lady Helen Munro Ferguson was the daughter of Lord Dufferin. The governor general could be equally partisan; see Australian Archives, CP78/9, vol. 1, Tennyson to secretary of state, 20 October 1906,503: 'Unless we can secure [the transfer of state debts to Commonwealth control] I would stand on our legal rights under the Constitution and give the States nothing/ 35 Saywell, Office of Lieutenant-Governor, 34. 36 RGG, (Mrs) Kathleen R. McKenzie to Col. A.G. Cherrier, 11 February 1965 (2450.1, vol. 2, Lt. Governor. Status of, Instructions to, 1956-65). 37 'Such information or advice as [His Honour] receives from official sources should come through the ministers. Any other practice would surely be destructive of ministerial responsibility/ This was the advice B.L. Strayer, then Crown solicitor, gave Allan Blakeney, then Saskatchewan minister of education, at the time Saskatchewan's lieutenant-governor reserved, on his own discretion, a provincial bill. SAB, T.C. Douglas Papers, 'Bill 56 of 1961 and the Powers of Reservation by a Lieutenant Governor/ 24 April 1961 (R33-1, XXIII, 738, 23-17). 38 Stursberg, Roland Michener: The Last Viceroy (Toronto: McGraw-Hill Ryerson, 1989), 202. 39 RGG, Copy of a Report of the Committee of the Privy Council (P.C. 2914), 20 December 1911, in Thomas Mulvey (under secretary of state) to the governor general's secretary, 3 April 1912 (1988-89/081, box 113, file 2450A, 'Lieutenant Governors, Status of Instructions to, vol. 1,1872-1955'); and John N. Turner to His Excellency, Rt. Hon. Roland Michener, 23 December 1971 (1990-91/016, box 14, 535.5.). 40 SAB, R.L. Hanbidge Papers, Correspondence I.In, Hanbidge to Roger Duhamel, 14 January 1966. 41 FP, MacKinnon to Forsey, 24 April 1985, enclosure - brief to Special Committee on Reform of the House of Commons, 14-15 (file 59/18, MacKinnon, Frank, correspondence, papers and reviews of constitutional matters, 1980-1986). 42 Louis Massicotte, 'Quebec: The Successful Combination of French Culture and British Institutions,' in Levy and White, eds., Provincial and Territorial Legislatures, 74; see also Globe and Mail, 15 April 1993: '[Instead of the Speech from the Throne], Mr Klein will... deliver a 90-minute, state-of-the-union address ... The Alberta government is considering having Throne Speeches only after elections. "It has to do with the image we want to project, and it has to do with costs," said [the] Deputy Premier/ 43 Massicotte, 'Quebec,' 73; see also essays on the other provincial legislatures in the Levy and White book.

Notes to pages 168-71 231 44 Quebec, Une Nouvelle Federation canadienne: La Commission institutionelle du Parti liberal du Quebec (1980); see also Ontario, Propositions of the Government of Ontario submitted to the Continuing Committee of Officials on the Constitution (December 1968), 14, 35, and 36. 45 FP, 'Notes on the First Report of the Advisory Committee [Ontario] on Confederation/ 24 April 1978 (60/32 Quebec, Independence 1968,1988,1990). Unlike the earlier Victoria Charter of 1971, the Ontario Committee removed the office of lieutenant-governor from the basic amending formula and made it a matter of exclusive concern to the provinces. 46 Quebec, Working Paper on Foreign Relations (submitted to Constitutional Conference, Continuing Committee of Officials, Notes Prepared by Quebec Delegation, 5 February 1969), 15-19; and Ronald G. Atkey, Trovincial Transnational Activity: Approach to a Current Issue in Canadian Federalism/ in Ontario Advisory Committee on Confederation, Background Papers and Reports, vol. 2 (Toronto: Queen's Printer, 1970), 165. See also George]. Szablowski, Treaty-Making in the Context of Canadian Politics: An Exploratory and Innovative Approach/ in Clare F. Becton and A. Wayne MacKay, eds., Recurring Issues in Canadian Federalism (Royal Commission on the Economic Union and Development Prospects for Canada, Toronto: University of Toronto Press, 1986), 161-4 and 176-7n. 47 D.P. O'Connell, The Doctrine of Colonial Extra-Territorial Legislative Incompetence/ Law Quarterly Review 75 (July 1959), 318-32; G.V. LaForest, 'May Provinces Legislate in Violation of International Law?/ CBR 39 (1961), 78-91; Mellenger and another v. New Brunswick Development Corporation (1971) 2 All ER, 593; British Year Book of International Law 50 (1979), 48-9; David E. Smith, Trovincial Representation Abroad: The Office of Agent General in London/ DR 55 (Summer 1975), 315-27. 48 Paul J. Mishkin, 'Autonomy of Decentralized Units in the United States of America/ in International Association of Constitutional Law, Federalism and Decentralization: Constitutional Problems of Territorial Decentralization in Federal and Centralized States (Fribourg: Editions universitaires, 1987), 243. 49 Quoted in S. Rufus Davis, The Federal Principle: A Journey through Time in Quest of Meaning (Berkeley: University of California Press, 1978), 86 (original emphasis). See also Preston King, Federalism and Federation (London: Croom Helms, 1982), 121. 50 Daniel Elazar, 'Our Thoroughly Federal Constitution/ in Robert A. Goldwin and William A. Schambra, eds., How Federal Is the Constitution? (Washington: American Enterprise Institute for Public Policy Research, 1987), 38-66, passim. 51 Ibid., 56.

232 Notes to pages 171-5 52 Andrew W. Fräser, The Spirit of the Laws: Republicanism and the Unfinished Project of Modernity (Toronto: University of Toronto Press, 1990), 244. 53 Canada, Dominion-Provincial Conference, 6-10 August 1945, DominionProvincial Submissions and Plenary Conference Discussions (Ottawa: King's Printer, 1946), 4; Dominion-Provincial Conference, 25-26 November 1957 (Ottawa: Queen's Printer, 1958), 23-4. 54 Report of Proceedings, 2 May 1938, 7434. 55 Canada, Proceedings, Conference of Federal and Provincial Governments, 4-7 December 1950 (Ottawa: King's Printer, 1951), 57-8. 56 Dominion-Provincial Conference, 25-26 November 1957,15. 57 'Hydro Advisory Council... Frost/ Frost to Robert Saunders (chairman, Ontario Hydro Commission), 15 November 1950, and 'Cas/ Frost to Garfield Case, 9 October 1951 (personal), quoted in Roger Graham, Old Man Ontario: Leslie M. Frost (Toronto: University of Toronto Press, 1990), 212. 58 Albert Wesley Johnson, 'Biography of a Government: Policy Formulation in Saskatchewan, 1944-61' (Ph.D. thesis, Harvard University, 1963). 59 Dominion-Provincial Conference, 6-10 August 1945, 38. 60 P.E.I. Potato Marketing Board v. H.B. Willis Inc [1952] 2 SCR 392. See also E.A. Driedger, The Interaction of Federal and Provincial Laws/ CBR 54, no. 4 (December 1976), 700. 61 Ibid. 62 See David E. Smith, 'Police and Political Science in Canada/ in R.C. Macleod and David Schneiderman, eds., Police Powers in Canada: The Evolution and Practice of Authority (Toronto: University of Toronto Press, 1994), 184-208. Conclusion 1 FP, typed sheet headed 'Saskatchewan Brief/ n.d. [1945] (file 57/28, Disallowance of provincial acts (2), 1945,1948). 2 Senate of Canada, Special Senate Committee on the Constitution, Proceedings, 26 July 1978,1:114; Pope to Arthur Sladen (governor general's private secretary), 29 August 1901, in Paul Stevens and John T. Saywell, eds., Lord Minto's Canadian Papers: A Selection of the Public and Private Papers of the Fourth Earl of Minio11898-1904, 2 vols. Toronto: The Champlain Society, 1983), 2: 63n. 3 RGG, Butler to Morton, 7 June 1972 (1990-91/016, box 14, file 535.2, vol. 1). 4 RGG, Governor General's secretary to Privy Council, 20 March 1896 (G17A, vol. 15, Governor General's Letter Book, p. 134) and Grey to Bigge, 15 June 1908 (G21, vol. 681, Honours, 1906-1912). Arthur John Bigge, created 1st Baron Stamfordham in 1911, was private secretary to the Prince of Wales, who became George V in 1910.

Notes to pages 175-9

233

5 BP, Butler to George F. Davidson (secretary, Treasury Board), 16 October 1967 (vol. 10). 6 Jacques Monet, 'La Couronne du Canada/ JCS 11, no. 4 (November 1976), 31 and 30. 7 RGG, Secretary, 'Memorandum for His Excellency: Subject: National Unity/ 31 May 1979; Paul M. Tellier (deputy secretary to the cabinet, coordination) to Butler, 23 May 1979 (1990-91/016, box 13,535.1.2). One suggestion was 'an advertising campaign in Quebec to focus attention on the Order of Canada/ 8 Australia, An Australian Republic: The Options, Volume I - The Report (Canberra: Australian Government Publishing Service, 1993), iv and 40. 9 John Uhr, 'Instituting Republicanism: Parliamentary Vices, Republican Virtues?/ A/PS 28 (Special Issue: Australia's Republican Question, 1993), 32 and 31. 10 Samuel Beer, 'Federalism, Nationalism and Democracy in America/ American Political Science Review 72, no. 1 (March 1978), 12. 11 John Whyte, The Australian Republican Movement and Its Implications for Canada/ Constitutional Forum 4, no. 3 (Spring 1993), 88-92. 12 An Australian Republic, 34. 13 For a Canadian, the striking impression gained from a study of Australia's governors general far into this century is their essential Britishness. See Christopher Cunneen, King's Men: Australia's Governors-General from Hopetoun to Isaacs (Sydney: George Allen and Unwin, 1983). 14 Redfern memo no. 4. 15 Leader-Post (Regina), 25 May 1939, editorial. The first visit of a reigning monarch to Canada (1939) and Australia (1954) is discussed in David E. Smith, The Prairies in 1939/ paper presented to the conference on A Fifty Year Retrospective / Cinquante ans plus tard, Canadian Committee for the History of the Second World War, Elora, Ontario, November 1989; and Peter Spearritt, 'Royal Progress: The Queen and Her Australian Subjects/ in S.L. Goldberg and F.B. Smith, eds., Australian Cultural History (Cambridge: Cambridge University Press, 1988), 139-57. 16 The Constitutional Amendment Bill: Text and Explanatory Notes (June 1978), notes 42-8. The remainder of this paragraph is based on Redfern memos nos. 14 and 11, and attachments. See also 'Dominions and King/ Spectator 19 April 1946, 396-7. 17 Quoted in United Kingdom, 'Proposals for Indian Constitutional Reform, 1933: Extracts relating to the processes involved in the formation of a Federation of India/ Cmd. 4268, in Nicholas Mansergh, ed., Documents and Speeches on British Commonwealth Affairs, 1931-1952, vol. 1 (London: Oxford University Press, 1953), 244.

234 Notes to pages 180-3 18 Privy Council Office, Responsibility in the Constitution (part of the Privy Council submission to the Lambert Royal Commission on Financial Management and Accountability [1977], Ottawa, 1993), 49. Remaining quotations in the paragraph come from this document. 19 Australia, Report of the Republic Advisory Committee, An Australian Republic: The Options, Volume 2 - The Appendices (Canberra: Australia Government Publishing Service, 1993), Appendix 4. The other two case studies deal with federations of Austria and Germany. 20 Ibid., 225. 21 Cheryl Saunders, 'Heads of State: A Comparative Perspective/ in Heads of State: A Comparative Perspective (a discussion paper; Constitutional Centenary Foundation, Cariton, Victoria, September 1993), 7. The foundation, established in 1991, describes itself as independent and non-partisan, and seeks to encourage 'informed public debate on the Australian system of government/ The monograph examines seven heads of state in Australia, Germany, India, Ireland, Israel, Portugal, and Singapore. 22 An Australian Republic, 1:7. See also 2: Appendix 7, 'Codifying Australian Constitutional Conventions/ 23 SAB, T.C. Douglas Papers, Mrs ]. Murphy (secretary, South East Hill Study Group, Prince Albert) to W.L. Mackenzie King, [3] March 1945 (R33.1/738). 24 GP, Gardiner to W.H. Heffernan, 3 August 1944, 42887-92; radio address, 'Social Planning, Liberalism and the War/ 21 April 1943, 46536-42. 25 H.A. Innis, The Place of Land in North American Federations/ CHR, 21, no. 1 (March 1940), 60-7. 26 SJ.R. Noel, Patrons, Clients and Brokers: Ontario Society and Politics, 1791-1896 (Toronto: University of Toronto Press, 1990), 62 and 59. 27 Chester Martin, 'Dominion Lands' Policy, ed. and intro. Lewis H. Thomas (Toronto: McClelland and Stewart, 1973), 28 In re Transfer of Natural Resources to the Province of Saskatchewan AC (1932), 29 and 38. 29 Mark Sproule-Jones, Governments at Work: Canadian Parliamentary Federalism and Its Public Policy Effects (Toronto: University of Toronto Press, 1993), 118. 30 Patricia Springborg, Royal Persons: Patriarchal Monarchy and the Feminine Principle (London: Unwin Hyman, 1990), 272, and see generally ch. 15. 31 See, for example, George Grant, Lament for a Nation: The Defeat of Canadian Nationalism (Toronto: McClelland and Stewart, 1965), 68-9. 32 Part of MacKinnon's purpose, he said, was to 'consider compensations of a psychological nature which the Crown provides in government/ The Crown in Canada, 32. This purpose he had earlier explained to Esmond Butler, RGG, 17 January 1972 (1990-91/016, box 14, file 535.2, vol. 1).

Notes to pages 184-5

235

33 Quoted in Ernst H. Kantorowicz, The King's Two Bodies: A Study in Mediaeval Political Theology (Princeton: Princeton University Press, 1957), 382. 34 Task Force on Canadian Unity, The formal Executive, section 4, chapter 3, part 3, 9 July 1978 (RG 33/118, vol. 3, file no. 322). 35 K.C. Pryke, 'Nova Scotia and Confederation, 1864-1870' (Ph.D. dissertation, Duke University, 1962), 280. Andrew Fräser discusses this point in greater detail in The Spirit of the Laws'. Republicanism and the Unfinished Project of Modernity (Toronto: University of Toronto Press, 1990), 244.

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Index

Aberdeen, Lord, 57,97,175 Aboriginal people, 10,14,104,108, 152, 177 Access to information, 67-8, 78, 79, 91,113. See also Freedom of information legislation Accountability, 16, 80-5, 95,138 Act of Parliament, 141 Act of Settlement, 115,135 Act of Union, 1840,120,121,174 Administration, of government: administrators, 93-4, 95, 98; agencies of, 93, 99-100; and appointments, 93-4,100-4; instruments of, 79, 89-100; and law, 95-100,136; nature of, 86-90, 93, 95, 151-2,180; policing of, 91,173; relationship with Crown, 87, 90, 92-100. See also Bureaucracy; Government; Public service Administration, of justice, 88-9,104-9 Administrative federalism, 172-3 Administrative law, 95-6, 97, 98,100, 136 Administrative tribunals, 98,99-104, 136 Advisory opinions, of Supreme Court

of Canada, 7-8, 50,138-9,146-55 Affirmative action, 103-4 Alberta, 10, 80,154, 167,172,182. See also Prairie provinces Alternation, principle of, 46 American Revolution, 116 Appointments: of administrative tribunals, 102-4; diplomatic, 27, 60-1; executive control of, 102-4,120, 169-70; at federal level, 87-8,102-4; of governor general, 45; judicial, 7, 104,170; order-in-council, 22, 60, 93-4,103-4,107; and patronage, 61-2, 87,126; pre-Confederation, 61,119; prime minister's powers of, 60, 61, 87, 94,119-20,179-^80; procedure, 100-4; at provincial level, 878,102-4; public service, 102-4; regulatory boards and commissions, 88,102-4 Armstrong, Sir William, 89, 90 Athlone, Earl of, 46,123, 178 Attlee, Clement, 71 Attorney general, of Canada: influence on justice and policing, 105-9 Attorney General for the Dominion v. Attorney General for Ontario, 67

262 Index Attorney General of Canada v. Inuit Tapirisat, 98-9 Attorney General of Manitoba v. forest, 149 Attorney General of Quebec v. Blaikie et al, 150 Australia: constitution of, 11, 28,142, 175; constitutional crisis of 1975,25, 31-2, 49,129; federalism in, 11,13, 161,174,177; government relationship with Crown, 4, 24-5, 41, 43, 50-1; history of, 12,15, 42-3,162, 163,177; and law, 21, 30; political system of, 11,14,62,101,108,129, 151-2,165; republican movement in, 6, 25,176-8,179,180; state governments of, 10,12, 22, 53-4,166-7, 170; views of Canadian federalism, 158,159,160-1 Australia Acts, 42-3 Bagehot, Walter: as interpreter of English constitution, xiv, xv, 3, 15-16,18, 35, 65,135,156,179,181; and role of Crown, 4, 24, 59 Bagot, Sir Charles, 64 Bailey, A.G., 64,163,166 Baker, G. Blaine, 141,142 Baker v. Carr, 69 Balfour Report, 28 Barwick, Sir Garfield, 129 B and B Commission, 74 Beer, Samuel, 177 Beetz, Jean, 144 Begin, Monique, 75, 76 Bennett, R.B., 45,101 Berger, Thomas, 152-3 Bessborough, Lord, 45 Bicameralism, 11,121 Bicommunalism, 121

Biculturalism, 74,175 Bilingualism, 47, 74,150,175 Bill C-60,1978 (Constitutional Amendment Bill), 45, 49-50, 51, 52, 111, 113-14,168,178; opposition to, 55,57 Bill of Rights, 1960 (Canada), 16,19, 69,72 Bill of Rights (Great Britain), 98 Bilodeau v. Attorney General of Manitoba, 149-50 Black, Barbara A., 123,129 Blackmun, Harry A., 154 Blake, Edward, 10, 44,158 Board of Railway Commissioners, 22 Board of Transport Commissioners, 100 Bogdanor, Vernon, 25, 32,115 Bonanza Creek v. The King, 143 Borgeat, Louis, 90, 91 Bourinot, Sir J.G., 18,57 British Columbia, 162,164 British Columbia Supreme Court, 152 British Empire, 14-15, 28,30, 44, 64, 116-17 British North America: and Canadian constitution, 142,156-8; political nature of, 33, 64, 65, 88,115-17, 120,130,135; and relationship with Great Britain, 32-3,116-17; and struggle for responsible government, 14,19, 32-3, 44, 56, 96,100, 115-17,121 British North America Act, 1867,15, 18, 52,158. See also Constitution Act, 1867. Bruce, H.A., 52 Bryce, R.B., 94 Buckner, Phillip, 131 Bureaucracy, 86, 93,102-3,104,109,

Index 263 180. See also Government; Public service Butler, Esmond, 47, 55, 61,118,125, 126,127,128,167,175,179,184 Byng, Lord, 31,130,163 Cabinet: and co-optation of Crown prerogative, 31-7, 67; defined, 40, 49; powers of, 63-5,69, 78; role of, 39-40, 60, 71, 81-2; traditions of secrecy, 39-40. See also Executive; Executive dominance. Canada: autonomy of, 8, 11, 27, 28-9, 41, 42-6, 64, 66, 115; historical development of, 6,10,12-13, 64-6, 162-3,182; nature of, 6,10,12,1314, 21-2, 23, 27, 30, 46, 47,56, 63-4, 67, 69, 70,175,177. See also Crown; Government; Party politics; Political system Canada Council, 46 Canadian Bar Association, 104 Canadian Centre for Management Development, 83 Canadian Charter of Rights and Freedoms, 1982: adoption of, 14, 50; guarantees of, 136-7; as higher constitutional law, 11, 34, 69, 90,134, 136,181; impact of, 16-17,19, 47, 48, 52, 95, 99,106,132,135,138-9, 149,171. See also Constitution. Canadian Constitutional Charter, 1971 (Victoria Charter), 47 Canadian Council on Social Development, 150 Canadian Judicial Council, 152-3 Canadian Legal Information Centre, 77 Canadian Pacific Railway, 12, 67,162 Canadian Radio-Television and Tele-

communications Commission (CRTC), 98-9,118 Canadian Transport Commission, 154 Cartier, Sir George-Étienne, 25, 63, 141 Cartwright, Sir Richard, 162 Cass, Fred, 107 Cauchon, Joseph, 63 CCF (Co-operative Commonwealth Federation), 52, 71, 76, 81,181 Charbonneau, Guy, 119 Chariottetown Agreement, 35 Chevrier, Lionel, 94 Chorley Park, 52 Chretien, Jean, 40 Citizens Insurance Co. v. Parsons, 157 Civil liberties, 71-2 Civil service. See Public service Civil Service Act, 102 Clark, Joe, 58,128,129 Clarke, Sir Ellis, 180-1 Clifford, John, 91, 92 Coldwell, M.J., 71 Colonial Laws Validity Act, 144 Colonial Office, 116,157 Common Law, 19, 21-2,32, 79,107, 135,136,146,170 Commonwealth, the, 25,27,28,30,31, 174 Comparative federalism, 159 Compound monarchy, xiv, 11,13,17, 29-30,50,132,153,184 Compound republic, 11 Confederation: evolution of, 9,10,12, 13-15,156-7,161-2; nature and scope of, 13-14,43, 76,115,135,142, 156-7. See also Constitution; Crown; Fathers of Confederation; Federalism Confederation Debates, 63

264 Index Conservatives, 97 Constitution, of Canada, 83-5, 93-5, 129,174; evolution of, 4, 8,16-19, 29, 38, 41-62, 69,123,141-55; and the judicial system, 11, 99,135-8, 144-55; patriation of, 50, 58,138, 147-8; reform of, 13-14, 25, 37, 43, 48,114,120,138; theory of, xiv, xv, 15,18, 29, 35, 49, 72, 87-8, 97, 99. See also Canadian Charter of Rights and Freedoms; Constitution Act, 1867,1982; Constitutional Amendment Bill; Federalism; Responsible government Constitution Act, 1867,13-14, 95, 99-100,119-20,121,146,150; amending formula for, 42, 46, 48,138,178; and federalism, 15-16, 29, 54, 76,137,164,169; and judicial system, 7-8,104,145; and powers of governor general, 40-1, 43, 70,114,117,129,145-6 Constitution Act, 1982,18, 95,138,148-9,152 Constitutional Act, 1791,116,117 Constitutional Amendment Bill, 1978 (Bill C-60), 45, 49-50, 51, 52, 55, 57, 111, 113-14,168,178 Constitutional crisis of 1926 (Canada), 45,117 Constitutional reference system, 146. See also Advisory opinions Constitutional monarchy, 20-1, 41-2, 110, 111, 121,129,133,138,160,179 Conventions, 27, 38, 40-1, 45, 49, 99,121,146,169-70; defined, 137-9; impact of, 148-9 Copyright, 73, 77-8 Court Challenges Program, 149-50, 151

Crisp, L.F., 161 Crown, in Canada: Canadianization of, 21,28,37,42,45-55,123-8,179, 181; as divisible, 28,123,153,184; evolution of, xiii, xiv, 20-4,28,4455,115-16,161; executive dominance of, xiii, 16,22,41-5,55-62, 72,110,114,126-7,138,179-80; and federalism, 8-9,22,23,29-30,512,139-44,154,159-61,163-9,1825; as indivisible, 14,28-30,159; and influence on administrative state, xiv, 5,30,41-2, 74,87, 88, 90, 92,956, 97,99,100,101,103,151-2; and the judicial system, 7-8,29-30,889,104-9,134-5; as a person, 25-6, 51, 79-80,183-4; powers of, xiv-xv, 18,21-3,30-7,56-62, 68,84-5,104, 110,114,120,122,127-8; and public ownership, 78-82,120,182-3; and relationship with Parliament, 22, 114-15,122,125-6,130,138,182-4; role and symbolism of, 6,9,14,246,104,114,118,124,175-6,177,178, 179,181; significance of, xiv, xv, 11, 30,41-2,50-2,113,164,166,1756,179,181,182,184; and study of government, xv, 181-2,184; view of, 17-18,24-5, 85,114,126. See also Constitution; Federalism; Government; Responsible government Crown-as-government, 20-2 Crown-as-symbol, 176-7,181 Crown-in-legislature, 168 Crown-in-Parliament, 92,114-15, 116,133,134,140,149,160 Davidson, Alastair, 12,108,165 Davis, William, 114 Dawson, R. MacGregor, 7,16,18, 39,

Index 265 97; and Crown in Canada, 33^4,56, 59, 66,130 Democracy, 70-1,72, 82,121,138,166, 184 Denning, Lord, 30, 81 Department of Justice, 121,138,150 Department of the Secretary of State, 150 Devlin, Lord, 140 Devonshire, Duke of, 163 Dicey, A.V., 18; and Crown's prerogative powers, 21, 32, 35-6, 90; and law of constitution, 140,146; and rule of law, 135,136,137,158 Dickson, Brian, 67-3 Diefenbaker, John, 60, 94,108,127; and Bill of Rights, 19, 72; and office of governor general, 25,46, 47, 51 Disallowance, 11, 43,142,145-6,150, 169 Discretionary powers, xv, 24,49,97, 114,120,125 Dissolution, xv,18, 58-60,114,131 Dixon, Sir Owen, 134,158 Doern, G. Bruce, 103 Dominion Court of Appeal, 139 Dominions, 27,28, 41, 44 Doughty, Arthur G., 166 Douglas, Tommy, 181 Drew, George, 171 Dufferin, Lord, 88,110,114,145 Duplessis, Maurice, 171 Durham, Lord: 1839 report of, 27,121, 122 Dussault, Rene, 90, 91 Dyson, Kenneth, 26-7 Elazar, Daniel, 170,171 Elgin, Lord, 61, 64,121 Estey, Willard, 140

Evatt, H.V., 24 Executive, the: control of, 21-2, 98-9; and control of appointments, 88, 100-4; instruments of power of, 74, 79-82, 91,109; and the judiciary, 144-55; powers of, 72, 78-9, 80, 81, 82-5, 97-9,181; and prerogative powers of the Crown, xiv-xv, 20,317, 66,110,126,131,138,146; provincial, 22,164,173; and special warrants, 83-5; structure and operation of, 21, 23,36, 38, 80,81, 90, 93, 95, 113,138,169-70. See also Cabinet; Executive dominance; Political system Executive dominance: over administration, 90; and administration of justice, 88-9; of appointment procedures, 103-4; of Crown, 71-2, 96-7, 114,116,179-30; of finances, 65-6, 80, 82-5; of government information, 73-9; legal and administrative remedies to, 79-85; from legal standpoint, 68-71; of political system, 40, 66, 67, 79,132,133; and provinces, 11,169,184; of public service, 86-7, 93-4; of regulatory bodies, 103-4; of royal commissions, 73-6; structure of, 63-5, 67, 71; threats to, 70-3. See also Political system Farthing, John, 9 Fathers of Confederation: and constitutional division of powers, 11,13, 15-16, 29-30, 63,177; and constitutional role of the judiciary, 153-4; view of monarchy of, 8,9, 26 Federal Advisory Committee (Australia), 176,180-1

266 Index Federal Court of Canada, 139 Federalism: development of, 9-10,15, 29-30,140-4,161-73; distinctiveness of, 14,19, 54-5,156,174,175; and division of powers, 29, 51-2, 153,155,157-8,171; and the executive, 7-8, 35, 40, 96,132-3,145-6; influence of British thought on, 158-9; influence of conventions on, 17, 137-9; interpreted, 3,160; outsiders' view of, 158-61; politics of, 30-7; and provincial rights, 143-4, 161-9,183,185; reform of, 25; structure of, 8,9,12-13,35,137,138,140, 153-5,184-5 Federal-provincial relations, 76, 95; and the constitution, 17, 47-52, 589,168,169; and division of powers, 29,66,69,93,132,145,153,168,169, 170; and provincial rights, 143-4, 161-9,183,185; regulation of, 14551 Ferguson, Munro (Lord Novar), 1667 Financial Administration Act, 83 Finer, S.E., 65,101 'First Canadian/ 45, 50,113-14. See also Governor general First World War, 13 Flanagan, Thomas, 103 Foreign Affairs Committee (Great Britain), 158 Forsey, Eugene, 18, 39, 60, 97,104, 130,138; and Bill C-60,49, 50; and federalism, 169,174,175; and reserve powers of the Crown, xv, 24, 31,43,56,59,112,113,131; and reference device, 70,148; and special warrants, 84 France, 94

Frankfurter, Felix, 138 Freedom of information legislation, 34, 77, 78. See also Access to information Frost, Leslie, 172 Frye, Northrop, 9-10 Garcia v. San Antonio Municipal Transit Authority, 154,155 Gardiner, James G., 87,94,102, 118, 130 Garran, R.R., 159,160 Gazette officielle (Quebec), 91 George VI, 53,124 Gladstone, William, 179 Globe and Mail (Toronto), 5, 6,102 Glorious Revolution, 115,116 Goods and Services Tax, 119,120 Gouzenko, Igor, 71 Government: accountability of, 16, 80-5, 95,122,126,131,138; characteristics of, xv, 7, 32, 44, 62, 63, 65-0, 79, 95, 96; historical development of, 38, 41-2, 66; structure of, xiv-xv, 7, 44,65, 71,73-9,80,89,100,135,156; and territorial and national expansion, 6,12-13,14,15, 44, 66,162-3. See also Administration; Crown; Federalism; Party politics; Political system; Responsible government Government of Canada, 33-4 Governor general: and attempt to recast role of, 111-12,113,123-5; Canadianization of office of, 25, 46, 47, 50,51,52; constitutional evolution of, 33-4, 41-62,111-12,178-9; executive dominance of, 71-2,96-7, 99,114,116,179-80; as 'First Canadian/ 45, 50,113-14; good causes of, 125,175,184; independence of,

Index 267 96-7,115,128,129,131; Instructions, 33, 43, 44,116; nature of role of, xiii, xiv, 17-18, 41, 42, 44, 46, 47, 60, 110, 111, 123,175; powers of, 24, 434, 46,48-9, 61, 71, 74,95, 96-7,11214, 124-5,130,131; relationship with lieutenant-governor, 50-1, 54, 167-8; relationship with prime minister, 40-2, 52,110; relationship with secretary, 47, 55,59,60,118, 123,125, 126,127-9,178; selection of, 45,48,123,125,127; special warrants of, 18, 83-5 Governor-in-council, 96-7, 99; appointments, 7,102,103,107,140 Graydon, Gordon, 71 Great Britain, 18, 46,158; and autonomy of dominions, 42-5; and Commonwealth, 25, 27, 28, 30, 31,174; constitutional issues in, xiv, xv, 3, 15-16,18,25,35, 65, 68,115,116, 117,135,141, 156,157,169,179, 181; government administration of, 21, 65, 77, 81-2, 89, 92, 98,105, 106,117,130, 131; monarchy in, 32, 59-60,110,114,115,125; political patronage in, 64, 88,100-1,102; political structure of, 26-7,40, 63, 64-5, 67,131; role of Crown in, xiv, 6, 7, 24,27-8, 32, 33-4, 36, 37, 98, 121-2 Grey, Lord, 61,175 Haldane, Lord, 8,141,142-3, 144 Haly, Lt. O'Grady, 145 Hanbidge, R.L., 54 Head, Sir Edmund, 64,163 Henderson, Maxwell, 68, 95 Henry VIII, 183 Hepburn, Mitch, 52,107,171

Heuston, R.F.V., 86,108 Hnatyshyn, R., 124 Hodge v. the Queen (1883), 67, 92 House of Commons, 7,48,64, 71, 74, 82,121 House of Lords, 36 Howe, C.D., 87, 94 Howland, W.R, 119 Hudson's Bay Company, 182 Human Rights Research and Education Centre, University of Ottawa, 150 Hydro-Quebec, 151 LN.S. v. Omaha (United States, 1983), 92 Ilsley,I.L.,71,72 Immigration, 6,12-13,14,15,44, 66, 162-3 Imperial Conference: of 1926, 28,41, 44; of 1929, 41 Imperialism, 15, 66 Information commissioner, 77 Innis, Harold, 63-4,164,182 Instructions, of governor general, 33, 43, 44,116 Instrument of advice, 60 Ireland, 141,142,180 Isaacs, Isaac, 12 Jennings, Sir Ivor, 18 Judges Act (1971), 152 Judicial Committee of the Privy Council: influence on Canadian constitution, 8,13,19, 29, 69, 70, 71, 132,140-4,178; and provincial rights, 10, 23, 28-9, 67, 69,142-4, 169 Judiciary: advisory opinions of, 7-8, 50,138-40,146-55; appointment of members of, 7,104,140,152; and

268 Index definition of Crown, 139-44; nature of, 134-5,136,139-44,152,153,155, 168; and relationship with government, 13, 34, 36, 67-71, 80,149-55; shift of power to, 150,151. See also Canadian Charter of Rights and Freedoms; Justice; Law Juneau, Pierre, 118 Justice, administration of, 104-9 Keith, Sir Arthur Berriedale, 18, 28 Kennedy, W.P.M., 18, 63, 65 Kent, Tom, 94 Kerr, Sir John, 49,129 Kershaw, Sir Anthony, 158 King, W.L. Mackenzie, 19, 53, 71, 72, 94,130,176; and relationship with governor general, 31,45,46, 59 Labour Conventions case (Attorney General of Canada v. Attorney General of Ontario), 169 Lambert Commission, 180 Lamontagne, Maurice, 94 Language rights, 47, 74,149-51,175 Lansdowne, Lord, 70 Laskin, Bora, 29,114,152,154 Laurier, Sir Wilfrid, 19, 66,165 Law, 79,153,180; nature and enforcement of, 105-8,170; structure of, 139-44. See also Canadian Charter of Rights and Freedoms; Judiciary; Justice Law Times (England), 141 Leader-Post (Regina), 178 Lederman, W.R., 57-8,139-40 Léger, Jules, 49, 51,111-12,113,123, 124, 125-6,127,128 Léger, Madame Gabrielle, 124 Legislatures: authority of, 67, 82, 845, 86,90,137,140; executive domi-

nance over, 21-4, 40, 57-8, 65, 90, 122, 134,164; history of, 64,115-19; and judicial advisory opinions, 146; nature of, 10-11,19. See also Federalism; Government; Lieutenant-governor; Parliament; Responsible government Lesage, Jean, 94 Letters Patent, 33, 111, 145; of 1878, 40, 43; of 1947, 33, 45-6,117,123 Lévesque, Rene, 51, 52-3,58,168 Liberals, 45, 46-7,56, 72,102 Lieutenant-governor: contribution to provincial rights campaign, 163-9; powers of, 71, 74, 96-7,107,125; relationship with governor general, 50-1, 54, 167-3; relationship with premier, 40-2, 51-2, 87,110; role of, xiii, xiv, 60,110, 111, 155,166,167, 168; status of, 4, 8-9, 41, 53-5, 111, 160,167. See also Crown; Monarchy Liquidators of the Maritime Bank, 13,22, 23, 28-9, 50, 54, 67, 92,143,166 Lisgar, Lord, 40 Local Prohibition case, 13 Locke, John, 32 Lome, Marquis of, 43 Lowell, C.R., 38 Lower, A.R.M., 164 Lower Canada, 116,119,121,141 Lussier, Michel, 38 Macdonald, Sir John A., 19,66,119, 139; anti-provincial bias of, 22, 53, 55; and the Crown, 9,18,147,148; and federalism, 8,15,23, 29,141, 156, 157 MacEachen, Allan, 51, 94 McGrath Committee, 104 Mackenzie, Alexander, 44, 76,119,145 Mackenzie Valley Pipeline Inquiry, 153

Index 269 MacKinnon, Frank, 126,164,168,176, 183 McRuer,J.C,98,107 McWhinney, Edward, 113,130 Magnet, Joseph Eliot, 151 Maitland, EW., 26 Mallory, J.R., 31, 39, 45,49,130 Manitoba, 57, 70,112,118,162,171; language legislation in, 149,150. See also Prairie provinces Manitoba Act, 182 Manitoba Language Rights reference, 149 Manitoba School Question, 99,175 Manning, Ernest, 172 Maritimes, 33,162. See also New Brunswick, Nova Scotia, Prince Edward Island Marleau, Robert, 122 Marshall, Geoffrey, 92,121,158 Marshall Inquiry, 105 Martin, Chester, 182 Massey, Vincent, 25,28,46,108,123, 125 Massey Commission, 46 Meech Lake Accord, 16, 35 Meighen, Arthur, 39,117 Members of Parliament, 7, 90,122, 126,131 Metcalfe, Lord, 100 Michener, Roland, 47, 54, 59, 97,123, 125,167,175 Miller, Frank, 56, 57 Minority government, 130 Mitchell, J.D.B., 68 Monarchy: meaning of in modern Canada, 4-5, 9-10,184; monarchical principle, 5,8, 26, 29, 72; as a person, xiv, 24, 25,178; and separation from Crown, 25-7. See also

Crown; Governor general; Lieutenant-governor Monck, Viscount, 174 Monet, Jacques, 125, 175-6 Moores, Frank, 167 Morton, W.L., 8,10,26,175 Mowat, Oliver, 10, 22,106, 147, 148, 169 Mulroney, Brian, 19, 51, 60, 83,104, 120 Multiculturalism, 47 Municipal government, 64,164-6 Nairn, Tom, 25 Namier, Sir Lewis, 6-7,8, 65,117 National Action Committee on the Status of Women, 75 National Anti-Poverty Organization [ÑAPO] v. Canada (Attorney General), 98-9 National Energy Policy, 120 Native people. See Aboriginal people Neary, Peter, 57 New Brunswick, 33, 106,167. See also Maritimes New Democratic Party (NDP), 51,56, 57 Newfoundland, 8,39, 57, 58,148,156, 172,175; and admission to Canada, 161,162 New South Wales, 12, 53 Noel, S.J.R., 103,182 North-West Territories, 14, 87 Nova Scotia, 10, 20, 33, 116,141,157, 171; Marshall Inquiry, 105. See also Maritimes O'Brien, Gary, 120 Office of the Governor General, 25, 47,50,51,52

270 Index Office of the Lieutenant-governor, 52-3

Official Language Act of Manitoba, 149 Official Languages Act, 74 Official Secrets Act, 72 Oka, 108 Oliver, Frank, 87 Ontario: and federalism, 66, 76, 81, 162,164-5,171; government of, 102, 104,106,172; and relationship with Crown, 56,125, 167,182 Ontario Hydro, 172 Ontario Police Act, 107 Ontario Police Commission, 107 Ontario Provincial Police, 106-8 Onuf, Peter, 10 Operation Dismantle, 34, 36 Order-in-council appointments, 22, 60, 93-4, 103^, 107 Orders-in-council, 34, 60, 96-7 Ostrom, Vincent, 110 Order of Canada, 101 Papineau, Louis-Joseph, 121 Parliament: and control of executive, 16, 32, 34, 72, 79, 98-9,117-18,138; independence of, 65,117-18,122, 131; members of, 7, 90,122, 126, 131; powers of, 37, 50, 68, 71-2, 801,82,83,90, 91, 93,118-19,136,155, 162, 169, 172; reform of, 90,122, 133; and relationship with Crown, 58-9,60,64,92-100,113-14,115-26, 130-1,138,184; structure and administration of, 18,19, 70, 76, 86, 87, 89,115,134,138,140, 147. See also Crown; Federalism; Government; Parliamentary government; Political system; Responsible government

Parliamentary federalism, 156-9,1626,170 Parliamentary government, 21, 64,94, 111,121,129,135-6,174-5 Parliament of Canada Act, 18 Parti Québécois, 48,108,124,150, 176 Party politics, 64-5, 79, 87, 96,131, 165; and party discipline, 22-3, 645, 67, 79, 89,126,134, 136. See also Patronage; Political system Patriation, of the constitution, 50, 58, 138, 147-8 Patronage: as basis of politics, 7,61-2, 64, 93,101,103; in colonial times, 100,182; and use of appointments, 88, 100-4,126,152. See also Appointments; Party politics; Political system, Public service Patrullo, Duff, 137 Pawley, Howard, 57 Pearson, Lester, 59, 74, 94,129 Pépin-Robarts Task Force on Canadian Unity, 46,184 Peterson, David, 56, 57 Petro-Canada, 78-9, 81 Pitfield, Michael, 112,126 Plebiscites, 70-1 Pluralism, 170 Police commissions, 107 Policing, 89, 91,104,106-8. See also Administration of justice Political system: executive dominance of, 72-86,103-9,131; nature of, 35-6, 73-6,95-100,103-4,126-7, 131-2,135-8,151,153,155; roots of, 64-6, 69, 89, 94, 105, 111, 135. See also Federalism; Government; Parliament; Party politics Pope, Sir Joseph, 41,175

Index 271 Prairie Farm Rehabilitation Act (1935), 102 Prairie provinces, 10,12, 66,162,163, 182-3. See also Alberta; Manitoba; Saskatchewan Prerogative: delegation of, 33, 45-6, 111, 117,123-4; executive dominance over, 31-7, 59-62, 97-8,109, 131,132; powers, 30-7, 68, 77, 87-^8, 92, 100-9,145; reform of, 33; and reserve powers, 11, 31-7, 43-4, 46, 56-62,105,112,113,131,138,142, 145-6,166,168,169; scope of, 7-8, 32, 34, 36-7, 43-4,59, 90,120,151-2 Prerogative, instruments of: Instructions and Commission, 33, 43,44, 116; Letters Patent of 1878,40,43, 111, 145; Letters Patent of 1947,33, 45-6, 111, 117,123 Prime minister: and Crown's reserve power, 57-8,114; longevity of, 19; powers of, 60, 61, 87, 94,107,11920,179-80; and relationship with governor general, 4,40-2,110; and relationship with lieutenant-governors, 40, 51-2,110. See also Crown, Federalism, Government; Parliament; Party politics; Political system; Prerogative Prince Albert, 114 Prince Edward Island, 33,64,156,175. See also Maritimes Prince Philip, 47 Principle of alternation, 46 Private law remedies, 21 Privy Council Act (Great Britain), 8 Privy Council of Canada, 49, 64, 95, 99,118,126,180 Privy Council Office, 47 Progressive Conservatives, 56,167

Progressive Party, 184 Provinces, 10-11,161-2; the Crown in, 9, 23-4,31, 35, 90-1,125,163-9; government administration in, 76, 80, 93,100,164-6,169,184-5; judicial administration in, 7,106-8, 134-5; legislative powers of, 54-5, 67, 69, 71, 72,80,100,103,138; and province-building, 54-5, 80-1,16373, 168; public service in, 94, 102; rights of, 10, 22,30,50,51, 52, 53-5, 92,114,142-4, 147-8,155, 160,169, 171. See also Federalism; Federalprovincial relations, Lieutenantgovernor Pryke, K.C., 185 Public Accounts Committee, 82 Public policy, 78-9, 80, 81, 85, 95,120, 122,126,131,136; administration of, 95-100. See also Administration; Government Public service: evolution of, 100-4; nature of, 7, 65, 75, 76,86,88,93, 94, 104-5,109; patronage in, 62, 88, 100-4 Public Service Act (Saskatchewan), 102 Quasi-judicial tribunals, 152 Quebec, 10,11, 76,144,162,165; and federal government, 81, 94,150, 171; government of, 102,104,106-8; and relationship with Crown, xiv, 52-3, 81,125,167,168,169,175-6; and sovereignty issue, 24, 51,142, 177. See also Parti Québécois Quebec Act, 33 Quebec Conference, 29 Quebec Resolutions, 15-16 Quebec Superior Court, 152

272 Index Queen Elizabeth II, 27, 46, 55,114; and constitutional change in Canada, 47, 48, 49, 52 Queen-in-Parliament, 65 Queen in Right of Alberta v. Canadian Transport Commission, 154 Quiet Revolution, 76

Rae, Bob, 56, 57 Rand, Ivan, 154-5 Records of the Governor General, 127 Redfern, Shuldham, 124,127,178,179 Reference device, 146-55. See also Supreme Court of Canada Referendums, 70 Reform Bill, 1832 (Great Britain), 65 Reform Party, 184 Regina v. Secretary of State for Foreign and Commonwealth Affairs, 30 Regulatory agencies, 22, 99-100 Regulatory boards and commissions: as administrative instruments, 22, 86, 90,104-5,172-3; appointments to, 35, 87-S, 152 Re Initiative and Referendum Act, 70, 71,132 Republicanism, 5,180-1; in Australia, 6,25,176-8,179,180 Reserve power, of the Crown, 11,18, 43-4, 56, 105,112,113,131,138, 145-6,166,168,169; exercise of, 317, 56-62. See also Prerogative Responsible government: and the constitution, 137,138; conventions of, 17, 95-100,137-8; and dominance over the Crown, xiv, 56, 57, 65, 72,105,115,116,131,136,171; evolution of, 20, 38, 41, 60, 96,113,11523, 126; and patronage, 61-2, 88, 101-2; system of, 67, 69, 73-9, 82,

86, 122,135,138; theory and nature of, 16-19, 30,49, 65,80,110,114. See also Administration; Crown; Government; Party politics; Political system; Prerogative Rideau Hall, 111, 125,127,128,167 Robertson, Gordon, 47, 49, 94, 111, 126 Roblin, Duff, 112,133 Romney, Paul, 106,147 Rowell, Newton, 137 Rowell-Sirois Commission, 74-5, 767,137,164,171 Royal assent, 114,117,124-5 Royal Canadian Mounted Police, 105-8,173 Royal Commission on Financial Management and Accountability (Lambert Commission), 180 Royal Commission Inquiry into Civil Rights (McRuer Commission), 98 Royal Commission on National Development in the Arts, Letters and Sciences, 46 Royal Commission on the Status of Women, 75-6 Royal commissions, 73-6 Royal Proclamation of 1763, 33 Royal Style and Titles Act, 123 Royal symbols, 47, 72 Rule of law, 135,136,137,158 Rupert's Land, 14,182 Russell, Peter, 151 St Laurent, Louis, 19,46,48,53,72,94, 130,162,178 Sandwell, B.K., 17-18 Saskatchewan, 80,130,182; government policies of, 44, 66, 81, 84-5,

Index 273 102,172; and lieutenant-governor's office, 52, 54,167,168,181; self-government of, 10,165. See also Prairie provinces Sau vé, Jeanne, 60,124 Sawer, Geoffrey, 43 Saywell, John, 97,167 Schattsneider, E.E., 5 Schreyer, Ed, 46, 51, 58,112,113,123, 126 Scott, R.W., 53 Second World War, 71 Self-government, 10-11, 27,31-7, 44, 100,115,165-6,170. See also Parliamentary government; Responsible government Senate, 63-4,124,129,168; appointments to, 29,119, 129,170; reform of, 5,13,48,50,52,113,122 Senate, Special Committee on the Constitution, 175 Sharman, Campbell, 11,174 Sheppard, Robert, 126 Shortt, Adam, 166 Sifton, Clifford, 87 Silkin, S.C., 105 Skelton, O.D., 101 Smallwood, Joey, 57,107,172 Smiley, Donald V., 17, 56-7 Smith, Goldwin, 57 Sociology of federalism, 158 Speakers, 119,121 Special warrants, 18, 83-5 Spectator, 178 Sproule-Jones, Mark, 63,183 Spry, Graham, 14 Standing Joint Committee on Regulations and Other Statutory Instruments, 87, 91, 96, 97,180 Stanley, Lord, 100

State Immunity Act, (Great Britain), 169 Statistics Canada, 76 Statute of Westminster, 4, 27, 41,48, 50,144,178 Statute: law, 32, 45; use of, 19, 33,109, 147; guarantees, 121; instruments, 91, 93, 96-7,121; power, 120 Steinhauer, Ralph, 55 Stevenson, Garth, 164 Stewart, Charles, 87 Stockmar, Baron, 114 Strayer, Barry L., 146,147 Stursberg, Peter, 167 Supreme Court of Canada, 64,152; advisory opinions of, 7-8, 50,1389,146-55; appointments to, 134-5, 145,170; establishment of, 7, 8,145, 146; influence of, 30, 50, 67, 78,99, 138,139,146-55,173; jurisdiction of, 34, 70 Süreté du Quebec, 107,108 Sutherland, Sharon L., 103 Third Report of the Special Committee on Statutory Instruments, 90 Thomson, Charles Poulett (Lord Sydenham), 165 Tilley, Sir Leonard, 20, 31 Times, The (London), 51 de Tocqueville, Alexis, 63, 69 Todd, Alpheus, 57 Treasury Board, 180 Tribe, Laurence H., 92 Trinidad and Tobago, 180,181 Trudeau, Pierre, 19, 94,118,126,150; and constitutional reform, 45, 48, 49, 50, 51,52, 111, 113-14,158,178; criticism of judiciary, 152, 153; defeat of, 50,127,128-9; govern-

274

Index

ment of, 43, 88, 90,120; and relationship with governor general, 47, 52, 59,126-7,176. See also Constitutional Amendment Bill Truman, Harry, 71 Tupper, Sir Charles, 97 Turgeon, W.F.A., 66 Turner, John, 167 Tweedsmuir, Lord (John Buchan), 45, 46, 53, 59,123

Valpy, Michael, 126 Vanier, Georges, 46,123,125,126,127, 128

Uhr, John, 177 Underbill, Frank, 19 United Cañadas, 10,12,165 United Kingdom. See Great Britain United Province of Canada, 119, 121 United States: constitution of, 10, 11, 13,33,61,92-3,94, 95,136,142,156, 170, 171; history of, 116,177, 182; and law, 21, 78; political system of, 36,56,61, 63, 65,67, 69,81,102, 111, 122,153,154,155,180; Supreme

Wade, Sir William, 98 Wallas, Graham, 76 Ward, Norman, xv, 57, 66, 80, 82,130 War Measures Act, 72 Western (Canada) alienation, 124 Westminster, model of Parliamentary government, 94, 111, 135 Wheare, K.C., 3,159 Whitaker, Reginald, 103 Whitlam, Gough, 49,129 Why te, John, 177 Willingdon, Viscount, 53

Court of, 69, 92,140,147,153-4 University of Ottawa, Human Rights Research and Education Centre, 150 Upper Canada, 106,116,119,120,141, 182