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Friday, January 24, 2014

Reversing the Governor General's Vasectomy


From the desk of the Rip-Van-Winkled Oracle of Orillia, author of the blog "Sunset Sketches of a Little Country"under the electro-pseudonym, Stephen(dot)Leacock

January 29, 2012

Reversing the Governor General's Vasectomy

Executive Summary


The Letters Patent of 1947 restate the Governor General's Executive powers exactly as enumerated in the BNA/Constitution of 1867, plus they confer the title of Commander-in-Chief (formerly vested in the Office of Her/His Majesty s.15). All of this is granted  'at pleasure'  of the Monarch and can be revised unilaterally by H.M. at any time. But to return to what already exists, needs nothing 'legally' to be changed, in my opinion our as-written in the nineteenth-century systems of hierarchical checks and balances is just about perfect for our sea-to-sea-to-sea Canada in the 21st Century.

I believe the Office of Governor General has been emasculated. Not by castration/removal of powers, but by sleight-of-hand at a time beyond most people's memory. This magical usurpation was achieved by one Order-in-Council, issued by one PM, under emergency conditions, in time of war. It is my belief, that to restore the as-intended, power-sharing hierarchy, re-instituting the planned checks-and-balances and re-instating the governance system I deemed to be "just about perfect", the Executive powers of the Office of Governor General need simply to be "re-attached" to the Office itself.

Further, the process of reversing the Office's Vasectomy is simple. No Constitutional amendment is necessary, no Act of Parliament is required. Probably only a few sets of Letterhead need be changed.

All that needs to happen is for Canadians to demand that the 50%+1 PM follow the written provisions of our foundational law, and for us to  instruct the 50%+1 PM to rescind that one Order in Council and go back to being the Leader of the biggest 'group' of members in the Lowest House of our Legislative power- surely that's enough power for any one person to wield, no matter whether that one person, be Mr Harper, Mr Martin, Mr Chretien, Ms Campbell, Mr Mulroney, Mr Turner, Mr Clark or the late Rt Hon Messrs Trudeau, Pearson, Diefenbaker, St Laurent or King.

Once we experience the revolutionary-style changes in our accountability structure that will flow from reversing that one pesky Order in Council, we can make plans to hold elections for Governor General (perhaps simultaneous with every other General Election, for a term that starts 365 days from the return of the Writs)


Dear Ladies and Gentlemen,

It seems things have gone a bit wonky with Canada's parliamentary system since my demise in 1944.

Any of us old codgers can describe the symptoms of the governance metamorphosis for you, but few of the older crowd can precisely describe "what" exactly has gone wrong, exactly "how" it happened and ... fewer still can get anyone to listen to what they have to say.

My recollection of the facts pertinent to Canadian governance prior to what's now called the Second World War, are as crisp and clear as the day I completed the book Baldwin, Lafontaine, Hincks: Responsible Government in 1907.

It appears to me that most Canadians have never absorbed what "Responsible Government" means in Canada i.e. the Executive power being responsible to the Legislative power. In post-1791 (see Back-filling below) colonial days, the Executive levied the taxes but was required to announce its intentions in a Throne Speech and gain approval for those tax measures (supply) in the Legislative Assembly, after hearing the Assembly's grievances.

While we now are governed under a new BNA Act 1867 (it's been amended many times and re-titled in 1982 as "Constitution Act 1867") the essence of Responsible Government still remains the foundation for the "similar in Principle" constitution of the governance of Canada although the in practise, it has been turned on its head.

The British colonial framework was based upon achieving and maintaining the greatest common good as viewed by the Monarch-in-Council (the U.K's Privy Council), a view sometimes inimical to the view of the North American subjects.  Here's the rub (and the nub of what I have to say herein) ... if now, the greatest common good should be viewed from the standpoint of the Canadian subject/citizens, but the power framework stands in the way of that goal ... how might it be corrected. And how can this be achieved with minimal dislocation, fuss, bother, paperwork and without a Constitutional Amendment requiring 7/50% consent or unanimity.

Back filling and historic evolution.
After losing the 13 Colonies, the UK Privy Council sharpened their pencils and granted a form of Responsible Government -a popularly (with stringent qualifications) elected Assembly - to the remnant British North American colonies with the Constitutional Act of 1791.

The trick here (as then) was the double meaning of "Responsible" - some think it means "wholly accountable" to another person/party, while others say it means "have regard for" another's position before doing exactly what you intended to do anyway.

It goes without saying that these two interpretations banged heads in the colonies and caused countless headaches for the Monarch-in-Council's stewards here and "over'ome".

So, after a local rebellion or two, a dismally failed attempt at assimilation of the non-English & non-Protestant elements of Canada East & West and faced with the prospect of financing the defense of a huge, far-away border from attacks by the Manifest-Destiny zealots after the American Civil War, the Monarch-in-Council felt it was best to cut British North America loose. If blood turned out to be thicker than water - Hooray, but if not ... so be it ... a few arpents of snow and all that.

The 1867 power-sharing agreement hoist the same form of Responsible Government, a superstructure called in the 1867 legislation the "General Government"(later referred to as Dominion gov't and more recently, quite imprecisely as the Federal gov't) atop 4 provincial ( NS, NB, PQ & ON) forms of that same Responsible Government hierarchy .... with the Sovereign at the top, all Authority and Powers flowing Down from the top and all Accountability and Loyalty flowing UP.

The Monarch-in-Council format was retained and a new Office, Governor General added to the top of the local heap. This local representative of the Crown had full authority to Assent, Withhold Assent or Reserve Assent on local Bills and Orders "as an individual, with or without Advice and or Advice and Consent" see section 12, BNA 1867, albeit every decision was subject to the Disallowance Power (any approved Canadian Bill could be annulled within 2 yrs, section 56) BY the Monarch-in-Council, no questions asked.

So while some thought (and we're still all taught) that we had a country, we had no sovereignty ... we were still vassals and the UK was our suzerain. We'll come back to this.

Appearances can be deceiving (especially when they're supposed to be)
In Great Britain since the Glorious Revolution and Restoration of the Monarchy, the UK Privy Council decides everything and presents their Bills and Orders for rubber-stamping by the Monarch, who is duty-bound to approve them, while the Monarch is 'held harmless and faultless' by another lost tradition - "Ministerial Responsibility".

This term affords the Monarch and HM's Ministry some wiggle-room. The tradition holds that if a Bill, measure, Order etc proves in time to be in error, the Minister and or Ministry (if still in Office) who brought the measure to the Monarch will fall on his/her/its sword "for giving bad advice". The measure dies, expires, is rescinded, the poor sword-eater gets pensioned off to Nirvana and the Monarch and in-Council cabal march on as if nothing happened (with perhaps a few tut-tuts, but with many more quietly muttered "there-but-for-the-Grace-of-God-go-I")

In Canada, the Governor General was never compelled to rubber-stamp any Bill, measure, Order etc being presented for Royal Assent after 50%+1 passage by the Legislative Houses and after being vetted by the GG's independent advisors in the Queen's Privy Council for Canada, Section 11. Heavens no, the GG could/can/should/might withhold Assent (see s.12 vs s.13) or, in the event of really tricky issues, Reserve Signification (kick it upstairs, without deciding)

In Canada, the last time a GG famously "Just Said No" was in 1926, the King-Byng Thyng where a sitting PM with the second-largest number of members refused to hand over power to the Leader with the largest-number of members (but still not a majority) after the PM was defeated in the House of Commons. NB less famously the Alberta Legislature's Bill to print currency was Disallowed in mid-Depression as ultra vires (and Mr Aberhardt and his pre-Leduc province 'soldiered on regardless' without his #1 election plank).

The "Thyng" (the GG's refusal of a PM's request for a dissolution) browned-off Mr King no end. He wanted to be considered a Rt Honourable, just like in the Home country, on par with the UK PM, with all the same rights and privileges of the PM's office in the UK and not thought of, in London and around the world as representing some insignificant, supplicant, back-water "Dominion" - Heck without Canada, what might have happened in The Great War (WWI)? 

Mr King campaigned in the soon-after election for the right of a PM to force his/her will upon the GG and ... since he won that election (in the absence of a viable alternative, AND after the then-recent minority-begetting-minority history {kinda like May 2 2011}) ... he felt he had a mandate to act like the constitutional law had been changed.

As it turns out, times were good in the colonies and some of the other Dominions had been getting similarly Uppity, so after some discussions in London during 1926-1930, a new Imperial doctrine regarding the Dominions/Commonwealth was codified. The Statute of Westminster 1931, gave most Dominions more autonomy (it varied by country's wish), limited the direct effect of the UK Houses on Canadian law ... but retained the "form of Responsible Government" with the Monarch-in-Council still at the head, source of Authority and Sovereignty.

Then the Depression and Germany's resurrection under National Socialism, its re-armament (NB on printed greenback wealth), its territorial expansion(s)/ liberation(s)/ aggrandizement(s) and its Acts of war.

Emasculating the Powers Above
Without the incredibly effective mobilization of Canada in the so-called Phony War period (a truly amazing Canadian story around PM King's Minister-of-Everything, C.D Howe and the Dollar-a-Year Men), the UK would have been lost before the Yanks set out the terms of the first Loan/Lease and before the first twinkle of an American idea about the sending troops that eventually turned the tide.

To save the world from the Hun, Canada needed an integrated plan. A Central Command and Control office and we needed integrated Central planning to marshal all our resources and unify the whole War effort.

Unfortunately Canadian governance wasn't structured that way. It was a hierarchy of checks and balances DESIGNED to prevent their being a Central Command and Control Office-HOLDER.

No matter, serendipity prevails.

The long-serving Clerk of the Canadian Privy Council, Ernest Joseph Lemaire,  retired on January 1, 1940, then Lord Tweedsmuir the Governor General suddenly died in office on February 11, 1940 ... so, in a flash, the officeholders embodying the institutional memory of "How Things Are Supposed To Run" disappeared right before (the delighted) Mr King's eyes ...right in the midst of a wartime Crisis -- (King thinks aloud) "Oh, how convenient, I'll execute my plan to elevate my Office tout suite ..... and worry about the niceties later ... and if we don't win the war - it won't matter anyway".

Quick like a bunny Mr King drafts, presents and gets approval for an Order In Council that in a scant few paragraphs on two pages created on March 23, 1940, signed by ONLY 5 souls on March 25, 1940(but effective on March 23/40):
- a) Expands the Mandate of the Clerk of the Privy Council (part of the supervisory Executive Order of Governance) to run and expedite things in the Cabinet (part of the needing-supervision Legislative Order) 
and 
- b) Appoints his Principal Secretary, Arnold Danford Patrick Heeney, to the new Dual-Role position see Order in Council P.C. 1940-1121.  (See The Official spin regarding PC 1940-1121 -- but you won't find the actual document anywhere else)

All of a sudden, the PM had taken effective control over the Privy Council, in the absence of a seasoned Clerk of the PC and with the office of GovGen temporarily vacant, but backed by as little as a 50%+1 majority in the House of Commoners, dear ol' Wm L M King (and his successors) has/have no one to say NO to him/them - just as he might have most-wildly ever envisioned it
.
Oh well, let's win the war and worry about it later.

After the successful war-effort,  Mr King suggested that it might be best henceforth for HRH-in-Council to appoint "a Canadian" (of the PM's recommendation natch) as Governor General, to redraft the Letters Patent for the Office and to start calling Canadians "citizens" rather than "subjects of the Crown" .... all was agreed.

Then the post war boom and part 2 of C.D Howe's mobilization/nationalization play came into view - the newly-created centralized, nationwide, communications, transportation, aviation, navigation etc networks that had acquitted themselves so well in times of wartime emergency, now became the perfect framework for prosperity and development in peacetime.- - it was a magically prescient plan, executed beautifully.

Unfortunately, the Central/General/Federal government that did so well at running EVERYTHING (for the common good) in wartime .... didn't want to stop being so vital, so important, so integrally involved in every aspect of Canadian economic life - they LIKED being managers of the country/ economy/ people's lives. They (quite humanly) wanted to continue being in charge ... I wonder, if they even wondered if anyone would care if they had no constitutional mandate and no post-war justification.

So it went, well-meaning and industrious leaders became drunk on power and felt "they knew what was right" even if HOW they did it was out-of-bounds legally.

But all this change and in the late 1950's, the opposition parties in Ottawa rose up to stop the heavy-handedness of the Majority Party, the hand-picked heir to its long-serving PM and its Minister-of-Everything C D Howe. Some were discredited, some resigned, some were defeated and sadly - even when the 'other bunch' took over - we've had a terrible upside-down Executive/Legislative set-up ever since AND a large amount of central planning - ostensibly for the greatest common good of everyone....but really for the greatest good of the NEW Canadian version of Monarch-in-Council the merged leviathan, the PMO/PCO.

Hospitalization, Old Age Security payments, Senior Citizen Pensions, Universal Healthcare, ... all grand plans built around the Post War's Baby Boom demographics - i.e. many young working people can provide the funds to service the older workers (and encourage them to retire and make room for the youngsters). It seemed to many in Ottawa that there would be so much money available from the young workers that a Pay-As-You-Go system would surely provide enough for all, forever ... or at least until a few elections pass ... or at least as long as the Baby Boom lasts.

Where was the GG's Privy Councillors' institutional memory and wisdom that "good times don't last forever" .... where was the independent-of-Cabinet Treasury Board, running contingency plans and considering ramifications in case things turned out less-than-optimally .... and where was the old-style Comptroller General examining payments BEFORE they were made ... and where was the OLD Monarch-in-Council's local representative - on "Withhold Assent/Reserve for Signification" watch, diligently examining each measure/Bill/Order for short-term thinking coming from the democratic element ..... and where was the ever-vigilant citizenry of Canada -standing on Guard for Thee (and their own self-interest)?

The old-school offices and officers were all gone, pensioned off, disbanded, forgotten and the citizenry/voters were happy in their personal prosperity with not a thought that "their betters", the Stewards of The Canadian Crown's Assets and Treasury, might be pulling the wool over everybody's eyes.

The Order In Council PC 1940-1121 and the decision to appoint a Canadian of the PM's choosing as GovGen made a 50%+1  PRIME MINISTER a 'King, an AutocraTyrannosaurus REX'.  All the hierarchical double-checks usurped or emasculated and only the National Press Gallery (don't bite the hand ...) and the busy-raising-a-family people to say NO.

Today no one blinks when the Minority (ie less-than 50%) PM-up-for-re-election says that Bruce Carson's appointment to a sensitive Canadian Office was the sloppy work of some underling in the Privy Council Office scroll to Apr4/11. WHILE AT THE SAME time, under the post 1940 system, that very same the Privy Council Office answers to that same PM - That 'double-reverse, inside-outside gotcha', Mr Prime Minister, slipped right through, past, under and over-the-heads of the Press Corp and was repeated verbatim for public consumption unchallenged!

Just for information's sake, are you aware of the size and scope of the Privy Council Office?  here's the organizational Chart.  Do you know they write memos to themselves as part of the "In Council Community" ... this is one group that was never disadvantaged ...

One More Thing
Lest we forget the 'Patriation' of the BNA/Constitution of 1982 - repatriation was incorrect - the Constitution had never been here, so how could it be return/restored, so the new word was coined and popularized without questioning and with only casual scrutiny of the significance of what was NOT being done.

Most Canadians think we became a wholly independent country then, that all the ties to Britain, the UK, etc were cut. Sorry, lost in all the chatter about a Condition-ridden Charter of now-limited Common Law Rights, a virtually-impossible to utilize (save the Bilateral formula)series of Amending formulae, the entrenchment of Group Rights and amelioration exemptions for formerly disadvantaged Groups and the (still unfolding) very-significant addition of Treaty and Aboriginal Rights, was the simple fact that the Monarch still remains atop the power-sharing hierarchy and that same 'form of Responsible Government' (hobbled and scrambled and flipped upside down in practice) still prevails.
Can it possibly be true?

Why do you suppose the late Rt Hon P. E.Trudeau brought up the 1992 Charolttetown Accord's total inattention to the 1867 Reservation and Disallowance powers as one on many reasons why he opposed the 60+ changes being foisted omnibus-style upon an unprepared public as (another) seamless web of Constitutional modifications to be approved en bloc? 

Why, because it's all of 1867 (that's not been expressly amended, or replaced by separate legislative Acts) is still in place! - just like the GST Senators clause - these Constitutional rules DO NOT fall through disuse (desuetude)

The un-amended, unrepealed sections of all of the 1760/ 1774/ 1791(but not 1840) pre-Confederation Acts still apply too. In every one, including 1867 AND 1982, the Source of all Authority and Sovereignty resides in the Office of Monarch -N.B. the enabling Legislation, the Canada Act 1982, (U.K.) 1982, c. 11 did formally sever the rubber-stamping/ Ministerial harmless-holding "in Council" restrictions on Her Majesty regarding Canadian matters.

Since the UK Privy Council has fully withdrawn from Canadian affairs and since HM is not actively using her Canadian Powers .... where have they flowed? Power like energy cannot be created or destroyed - only transferred or transformed.

Where/ Who/ What is the repository of the God-granted Authority and Sovereignty of Canada?

Oh yes we blithely call it 'The Crown" -nationally and provincially, but who/what  is the Steward of this Authority and Sovereignty?

Are they/it doing a "good job"?

Are they/it "Stewarding"(def'n 5.1 British,historical) for the Greatest Common Good of the Governed or the Governors?

If a Nation-to-Nation negotiation was started between The Crown of Canada and the UN, the USA, the EU or China etc who would you want as your representative? as things stand now who would it be?

If a Nation-to-Nation negotiation was started between The Crown of Canada and the 600+First Nations, who would you want as your representative? as things stand now who would it be?

Does any person/office have a mandate - explicit or implicitly from you - to change, barter, grant or receive assets of Canada or our rights/ sovereignty/ authority?  

If the answer is "well, ya'know it's complicated"...  is that the state of affairs that you desire/want to continue and prefer? 

If under the above-mentioned Acts and Constitutions, the Governor General holds all these Authorities, Divine-Rights and temporal powers, why does the Officeholder of GovGen ... never use its power? why is the GG just thought of as a 'titular head' and why does s/he always approve everything requested by the PM? Sorry Ms Jean, you're the best example - the 1st and 2nd prorogations for Mr Harper

Why does the PM get away with acting as if  his/her office holds all the authority/sovereignty ... the way it's been since 1940, what could you do to stop a PM that is acting counter to the interests of Canadians like you?

Why can a party leader get away with promising all sorts of things you like in an election campaign and then as elected 50%+1 PM not do those things? like scrapping the GST for example.

Why can a party leader say one thing in an election campaign and then once elected as 50%+1 PM, do the opposite? like Wage and Price controls for example.

Do you think it might be wise to restore the 1867, restated in 1947 powers of the GovGen? as a way of restoring the double-check on a 50%+1 PM who's governing to suit his/her own interests and not the greatest common good of the governed?

Remember a Governor General cannot INITIATE Bills, nor AMEND legislation, s/he can only approve or not approve what's presented for Royal Assent. 

Do you think electing a person to be our recommendation for appointment-by-the-Monarch as GovGen might give a 21st Century mandate to that restored Office?

Do you think severing the control a 50%+1 PM has over the Privy Council  might be a good idea?(by simply having the present-day Governor General in Council rescind that one, emergency, war-time Order in Council #P.C.1940-1121, or perhaps by having the Supreme Court declare it anti-constitutional?)

If we enjoyed a selected-for-recommendation by election Governor General, aided by a restored to as-written Constitution position Privy Council, with both institutions holding a re-invigorated 21st Century "greatest good of the governed" mandate, do you think we would have restored the intended counter-balance to the powers of a 50%+1 political leader (power corrupts and absolute power ...)?
Do you think anyone else agrees with you?

Reversing the Vasectomy
The Letters Patent of 1947 restate the Governor General's Executive powers exactly as enumerated in the BNA/Constitution of 1867, plus they confer the title of Commander-in-Chief (formerly vested in the Office of Her/His Majesty s.15). All of this is granted  'at pleasure'  of the Monarch and can be revised unilaterally by H.M. at any time. But to return to what already exists, needs nothing 'legally' to be changed, in my opinion our as-written in the nineteenth-century systems of hierarchical checks and balances is just about perfect for our sea-to-sea-to-sea Canada in the 21st Century.

I believe the Office of Governor General has been emasculated. Not by castration/removal of powers, but by sleight-of-hand at a time beyond most people's memory. This magical usurpation was achieved by one Order-in-Council, issued by one PM, under emergency conditions, in time of war. It is my belief, that to restore the as-intended, power-sharing hierarchy, re-instituting the planned checks-and-balances and re-instating the governance system I deemed to be "just about perfect", the Executive powers of the Office of Governor General need simply to be "re-attached" to the Office itself.

Further, the process of reversing the Office's Vasectomy is simple. No Constitutional amendment is necessary, no Act of Parliament is required. Probably only a few sets of Letterhead need be changed.

All that needs to happen is for Canadians to demand that the 50%+1 PM follow the written provisions of our foundational law, and for us to  instruct the 50%+1 PM to rescind that one Order in Council and go back to being the Leader of the biggest 'group' of members in the Lowest House of our Legislative power- surely that's enough power for any one person to wield, no matter whether that one person, be Mr Harper, Mr Martin, Mr Chretien, Ms Campbell, Mr Mulroney, Mr Turner or the late Rt Hon Messrs Trudeau, Pearson, Diefenbaker, St Laurent or King.

Once we experience the revolutionary-style changes in our accountability structure that will flow from reversing that one pesky Order in Council, we can make plans to hold elections for Governor General (perhaps simultaneous with every other General Election, for a term that starts 365 days from the return of the Writs)

Consider now if it's worth your time to verify what's written here.

If so ... start by Googling  "Order in Council P.C.1940-1121"
Here's one of the Google responses:

ARCHIVED - Reporting of Federal Institutions 2 / 5

www.tbs-sct.gc.ca › ... › ReportsInventory of Government Organizations
9 Dec 2010 – Constituent Act Financial Administration Act, R.S.C. 1985, c. F-11. Order in Council P.C. 1973-1698. Year of Incorporation / Commencement ...


Truly,
Stephen(dot)Leacock
c/o Ed E.Trebor
416-819-7333

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