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Simple answers to Complex Questions and Complex Answers to Simple Questions. In real life, I'm a Greater-Toronto (Canada) Realtor with RE/MAX Hallmark Realty Ltd, Brokerage. I first joined RE/MAX in 1983 and was first Registered to Trade in Real Estate in Ontario in 1974. Formerly known as "Two-Finger Ramblings of a Forensic Acuitant turned Community Synthesizer"

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Friday, August 10, 2007

Pretenders to the Canadian Crown.

- Executive Power in Canada - who, what, why, when, where and how it's been usurped.

Dear NatPost Editors,


I wish to assert that very few Canadians know the mechanics of their as-written governance system and as a result we all suffer the tyranny of 1) no inalienable freedoms (all are subject-to conditions), 2) no property rights (all of Canada is 'owned' by the Crown, we hold but 'interests'), 3) little political power (save casting an occasional ballot at the end of bread-&-circuses elections) and 4) no sense of being able to DO anything about it, because the system (as we have come to know it) is so well established.

I further assert that a return to the as-written provisions of our 1763-1982 (as amended) governance system would immediately reverse the last two 'sufferings' I've cited and lead to a prompt resolution of the first two.

Your (Aug 7/07) Editorial on the Federal Court decision on withdrawing Barley from the control of the Canadian Wheat Board and the allusions to the philosopher's tale about the 'tragedy of the commons' in T. Corcoran's column Arctic Sprawl (Aug 8) prompt me to think how little understanding most Canadians hold about their Constitution's power distribution and how much latitude we have allowed our elected stewards in following the written provisions of the 1867 provisions.

The "monopoly" editorial blithely uses the terms 'executive orders', order-in-council', 'democracy', 'powers', 'Governor-in-Council', 'Governor', our 'constitution', 'assent of Parliament', 'Parliament', 'ownership' and wraps it all up in a call for a Conservative majority to assist in cutting a swath through this and other "thicket(s) of obsolete regulations".

The "sprawl" piece refers to "the chaos and devastation that usually follows "common" or international control" - the self-interest-based tragedy that occurs in held-in-common, open-to-all assets when no one/ nothing is responsible for its stewardship.

If I may offer the Canadian definition some of those terms (in contrast with the commonly-thought & understood USA & British variations) and keep my long-windiness in check, perhaps we can start to show Canadians the error of their ways and actually empower a complacent, nescient populace in this slow news season.

First, Canada is NOT a democracy ie the source of sovereignty & authority does not emanate from the people (as in the USA) the Crown is the source.

Second, Canada follows a Parliamentary system "similar in principle" to that of the UK in 1867 ie not exactly and with some lessons applied from the American's 2 constitutions ( the Articles of Confederation -Nb see Article 11- & the current one) and from the "responsible government" era in Upper/Lower Canada, East/West Canada and the Maritime provinces.

The similarity is the Upper/Lower Houses operating under rules of parliamentary procedure and the law.

The differences are a) it is written, b) there is a hierarchy of power (Executive over Legislative plus general over provincial/local), c) we have a Governor General (and corresponding provincial Lt Governors) and d) we have retained Royal Assent (plus reservation and disallowance powers) as part of the approval process. Along with Royal Assent, we have a hierarchy of holders of this veto - the Provincial Lt Governor's hold it over their legislatures, the (Dominion/Confederal/General) Governor-in-Council holds it over the provincial legislatures too, the Governor General holds it over the Dominion/Confederal/General legislative power AND finally the Crown-in-Council holds it over everything ( BNA Act 1867 Section 56 allows a two year window for any Bill to be Disallowed).

This is how it was written in 1867 and the only constitutional or operational changes that have taken place are 1) the Letters Patent of 1947 conferred on the Governor General, the Crown's title as "Commander-in-Chief in and over Canada" (as well as re-asserting the power of the Governor General to act in the Crown's name as an individual, ie with or without the advice and/or consent of the Privy Council of Canada) and 2) the Canada Act 1982, (U.K.) 1982, c. 11 declared that "No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law" (NB our Constitution Act 1982 is Schedule B to this final British enabling legislation -Schedule A is the French version but it's never been written officially).

The constitutional, sovereign, executive, democratic - everything- upshot of the 1982 'patriation' changes is that the Crown ie HRH Queen Elizabeth the 2nd was no longer bound by Her "in-Council" - She could decide things about Canada as an individual. All the uproar and celebrating about the Charter of conditional-Freedoms and limited-Rights and the independence of Canada were all hype - nothing changed as far as regular Canadians are concerned.We never had and still do not have any popular sovereignty, no property rights (except for time-limited trademarks & copyrights), etc just a multi-level, hydra-headed bureaucracy that is accountable ONLY to the Crown.

Third, our "Constitution" is a series of Acts of the British Crown, its Parliament and our Dominion/Confederal/General/provincial legislative powers dating back to the Royal Proclamation of 1763. All aspects of every documents still prevail (save any provisions of a prior Act deleted or amended by subsequent Acts) - hence to understand Canada's Governance system one must start in 1763 and read forward every single document ( God Bless the internet). Just examining the pamphlets put out by our present-day, scalawag-Stewards of Canadian Sovereignty or reading the texts on 'Civics' offered to secondary & post secondary students is wholly insufficient if one wishes to discern de facto from de jure.

Fourth, the powers to administer Canada are divided into two groups Executive & Legislative. The Crown, the Governor General and the Privy Council are the Executive. The Senate and House hold the Legislative Power. The much-discussed Part VI, with sections 91 & 92 (plus ss. 93-95 AND the Sixth Schedule) describe the Distribution of Legislative Powers - no Executive power is distributed to any provincial or elected office or entity beyond the Lt Governor.

The term Governor-in-Council (s.13 distinct and apart from Governor General of s.12) is used selectively throughout the BNA Act and when it is used, compels the Governor General to act BY AND WITH the advice the Privy Council in those instances. (NB current usage seems to indicate that the Cabinet is the Privy Council and that all decisions are made by the Governor-in-Council, but this is incorrect and 'twas never designed like this, more on how later)

In summary, the system was devised to allow the Canadian Legislative powers to propose, the Canadian Executive to decide and finally the Imperial Power to approve if it so chose.

As a note here, no Prime Minister or Minister (save in the explicit proviso for the Executive Council of the named provinces s.63) is entitled ex officio, to be in the Privy Council ie by right of holding that office. The Privy Council members were intended to be the Governor General own, independent advisors and to be supervisors of the actions of the legislative power - one of the checks built into the system and a counter-balance lest the Governor General be too new, too weak or the legislative leaders too strong or too beguiling.

Fifth, our 'One Parliament' (BNA Act s17) has three components the Crown, the Upper House styled Senate and the House of Commons - in this precise pecking order, with the Crown at the head. The Senate's superiority is not just literary, convenient or arbitrary, it was intentional.

The Senate was intended represent the traditional, status quo state of affairs "(to be a) bulwark against the clamour and caprice of the mob"- Sir James Lougheed; "to protect the regional interests and also a power of resistance to oppose the democratic element"-G.E. Cartier; and, as is carved in oak frieze of Canadian Senate Speaker's chambers "It is the duty of the nobles to oppose the fickleness of the multitude"-Cicero.

It is the only governmental institution that compels its members to maintain a net worth and property-ownership qualification or face dismissal (ss 23 & 31). Sadly this $4,000 bar to entry has lost its value to inflation (the only number in Canada to NOT EVER have been seasonally-adjusted or adjusted-for-inflation).

The Senators also have their own oath, the Fifth Schedule where they promise that they have not "collusively or colourably" wangled their property-ownership or net-worth qualifications.

The Senate can have its numbers temporarily increased by 4 or 8 on appointment by the Queen as recommended by the Governor General, as a way to overcome stalemates within the Senate and disputes over Bills with the Commons ( s.26) ie in this way the Governor General's position will prevail and the Senate will prevail, respectively.

The Senate (as a House of Lords, with membership based on these pecuniary qualifications rather than temporal or spiritual position) was to represent the propertied class (remember this was pre-Income Tax, most levies were on property) and the Senators were to be summoned in equal number from the 3 (now 4) "divisions" (now regions) of Canada. It was to be an Equal (from all parts) and Effective (able to stop silly initiatives) with never any thoughts of Election since there already was created an elected body and the whole idea of appointing persons was to get them away from the fret and fury of running for re-election.

In short the Senate was intended to be superior to the Lower House - Party-patronage (plus the aforementioned inflation) took care of that quick enough.

The Commons is open to citizens elected by their peers. No parties are constitutional-entrenched, nor is the office of Prime Minister - these are conventions and traditions. The Lower House was designed to be the free-speech forum for all types of voices to be drawn from all of Canada and the place that would initiate taxes (money Bills).

Convention says that the person commanding the confidence of a bare majority in the Commons will form a 'cabinet government' and be the Chairman of that cabinet. Portfolios and headships of departments can be doled out to those cabinet members - but need not be - cabinet members can be without portfolio.

Convention also says that cabinet members are sworn into the Privy Council - but that Council is an entirely DIFFERENT organization. The Privy Council is part of the Executive. These persons are but elected members of the lowest rung on the governance ladder, they are representative of the people not representative of the Crown - constitutionally anyway.

Now nothing is to stop the Governor General from picking any body S/He pleases to be in the Privy Council - so why not the ringleaders of the legislative order ... sure why not ... a few ... a select few.

But why is it today that EVERY member of the Cabinet is sworn as a Privy Councillor AND why is EVERY office, post and appointment within the committees of the Privy Council held by a member of the 'cabinet-government' AND why does it seem that the Prime Minister is the one telling the Governor General who to appoint to the Privy Council - the Executive committee devised and designed to give independent advice to the Governor General and to supervise (through its own sub-committees -Treasury Board etc) the operations of the elected officials?

'Twas not always this way.

Remember the King Byng Affair? Wm Lyon Mackenzie King was the Prime Minister (in minority) and Lord Byng was the GovGen and it was 1926.

When GG Byng was asked to grant a dissolution of Parliament by Mr King, Lord Byng refused. After all HE was the Governor General, with a choice, as an individual to make, circumstances - the opposition actually held more seats that the incumbent King and Byng simply followed the law and refused a partisan request/recommendation from ONE of his own advisors.

King was put into opposition by Byng and shortly thereafter he handily won power again ... on a platform of putting the GG's office in its place UNDERNEATH the authority of the Prime Minister - but King never changed the BNA ACT he just behaved like he had done so.

The events of the next little while - the depression, the phony War, WWII - all contributed to the expansion of government 'responsibilities'. Various social welfare programs, mobilization of the economy to meet the needs of the Mother country and Allies in Europe -never mind the 'creative' governance philosophies and models being explored in Russia, Germany etc in the 1920's, 30's and 40's - all created a 'central planning' mentality in Ottawa. "The Government is saving the country from economic disaster", "The gov't is running the war effort", "We're running the economy","We're running the country" this thinking became normal, here and around the world.

So it was not all that special for this same Prime Minister in 1940 to pass an order-in-council ( P.C. 1121, 25 March 1940 footnote 6) that appointed Arnold Heeney as BOTH (now-called) Secretary to the Cabinet and Clerk of the Privy Council. After all, we were at war ... coordination of effort and all that. Except now King the Prime Minister had taken control of the Governor General's independent Council of Advisors.

Part 2. After lobbying since the Byng-Thing that the Governor General should be a Canadian, not an imported Brit appointed by the UK Prime Minister, the game WAS changed by Byng,and only Canadians were appointed by the Queen (on the recommendation of ... wait for it ... the Prime Minister of Canada)

So it took a while but the Rt Hon Wm L M King succeeded in usurping the Governor General's place and powers without changing the BNA/Constitution. And since 1950 ... who can remember ... the fifties, the sixties boom-time .. governments MUST be doing a good job. 1970's the turkey's come home to roots fiscally, 1980's boom bust but who can remember what it was like before the war ... everything was so different.

Thanks to Mr King, every subsequent Prime Minister just kept on centralizing power and simultaneously expanding government. So today if/when a nice-looking, immigrant-of-colour-other-than-white, with a limp/blind eye/deaf ear, a media-savvy background and a sunny disposition (but no aspirations to wield the power or live the role of the Queen's representative -except the parties and trips of course ) is appointed to be a Lt Governor or Governor General no one bats an eye - the people say "that office is an anachronism!! Let's get rid of the Monarchy too" Alas, tis true the GG's office a joke ... everywhere except in the highest law of the land.

Summarizing - everything de facto is just about 180 degrees opposite from de jure.

What's better? having a written Constitution that is ignored by the governors (but crammed down YOUR throat everywhere you go or not having a Constitution at all and just let the governors do whatever they want without the necessity of dancing around/ flagrantly violating the law?

In Canada - Who Is the Boss? the Queen in person? the Crown as an office? the Governor General? the Prime Minister? the One Parliament as-written? the citizens? the flag? the un-written constitution that we're following now?

Somebody MUST BE the Boss, otherwise there is nothing/no one for our government-as-stewards-of-the-Crown's treasury & assets to be 'Accountable' to and no one/ nothing to stop our government from abusing you, your rights, your citizenship, your country, your heritage and your future.

This brings me to the Tragedy of the Commons part.

Garrett Hardin's 1968 article "The Tragedy of the Commons" in Science magazine, re-introduced a concept he credits to an 1833 pamphlet by one Wm Forster Lloyd where the human-nature principle of direct, present-moment, self-interest of those who over-use a shared, un-governed "commons" (the example is a pasture) overcomes the common sense tendency to preserve the perpetual sustainability of that pasture - the human does this because the benefit of over-use is direct and the effects of the over-use are reduced-because-it-is-shared with many.

This now-famous article was on population control and he visits pollution, national parks, free parking, energy use, tabooed acts of criticism towards "worthwhile" organizations, the Victorian attitude towards 'pleasure', the 'double-bind' of responsible/conscientious actions, the power of guilt, the fact that 'maintaining an imperfect status quo' is 'doing something active', the possible sanitization of the word coercion (it's a great piece) on the way to discussing propagation/breeding of humans.

Notwithstanding his purpose as genetic-biologist, he most importantly touches on morality ("the morality of an act is a function of the state of the system at the time") while describing our 'administrative law' society's propensity to legislate/regulate on all the possible "states of the system" and summarizes that part by re-issuing the ancient warning "Who shall watch the watchers themselves?"

The tragedy of the commons in Canada is the Crown. The Crown whatever that is - owns Canada.

Since nobody is acting like they own it, no office or person is wielding or defending the Crown's power, and since the vast majority of the public thinks "the government" is the Crown and everybody else is benignly allowing "the government" to act AS IF IT WERE the Crown, instead of being simply STEWARDS of the Crown's interest. We now have a government (when in 50%+1 majority) with absolutely no checks or balances on it when in fact our system was designed to prevent exactly that.
Any bunch of sweet-talking promise-makers with enough money to buy a few TV ads and campaign jets CAN BECOME the Crown and can run the country, the economy, your life pretty much anyway they like - as long as they don't get so greedy, so self-centred, so above-the-law that the courts, media and public just cannot ignore it any longer.

Canada was not meant to be this way. Canada the land of bounty for all was to be a country with so many checks and balances going up the power totem that ONLY the best and most suitable ideas would pass. We would be a country of established traditions, immutable principles and incredibly strong physical/tangible assets.

We would be a small population on a great land, marshaling and husbanding the resources for the perpetual good of all citizens. NO one would own all that wealth though, the Crown would keep title and give licenses and rights and interests for the land's development and utilization. The assets would be treasured for all , and a portion of the interest or bounty or crop harvested from the assets would go to those whose work/effort/idea developed the asset into income-production.

But with no Crown, no Head, No Boss ... human nature creates the very worst tragedy .... waste.

If we smarten up, claim that Crown as ours collectively, administered for our common good, by a government of stewards who know their place, their masters and their duty, well then, Laurier may turn out to be right ... he just miscalculated by a century.

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