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Saturday, February 06, 2010

The Law Is an Ass and "First Kill all the Lawyers" is still applicable

Exec Summary
No one seems to know that only in the Spring of 1940 (in the few months between the GG's Tweedsmuir & Athlone tenures) was the office of Clerk of the Privy Council & the Office of PM's Secretary to the Cabinet) merged by an Order in Council (PC 1940-1121) .

The appointment of Wm L M King's man, Arnold Heeney (King's Diary March 13 1940) -an Order-in-Council-while-the-cat's-away usurpation (Part 1 of King's revenge for Lord Byng's refusal of dissolution - in itself a totally reasonable decision given the Official Opposition Party had more seats that the sitting PM) is at the root of the current dissolution/prorogation 08 & 09/ who's the Head of State in Canada debacle.


THIRD NOTE

M. Hebert,
cc Constitutional-MonarchyWatch


Thanks for tip on Conacher v Prime Minister - PS this was 'sposed to be a quick note.

I've corresponded with Mr Conacher's office (his clerk I think, since I received nothing but "stock" answers) and am plowing thru the Sept 17 decision - so far in my study, IMHO, the reasons for the Applicant's requests for judicial review are weak, while the Respondent and Court make unbelievably inaccurate points, based on erroneous, un-historic recent interpretations of "how things operate de facto" vs "how things are written de jure"

I now gather why you cast off the opportunity to delve into my "book" idea - you are aware on how everyone in Ottawa and the law guild has "drunk the Kool-Aid" and are now blind to reform/change/review/rescission of their "accepted" "expert" view.

This case and the Conrad Black/Knighthood denial case re: the "prerogatives" of the PM to DO "more than just offer advise" has permeated the "In Council" community and the surrounding and affiliated environs - I'll go further it's polluted the minds of everyone associated with the Constitution Acts of Canada.

It seems no one (associated with the law) has kept themselves aware of the as-written provisions of the BNA1867 (never mind the Letters Patent 1947 and the Royal Proclamation of 1763) - they all look at the court-drawn interpretations and modern-day Supreme Court precedents. Irrespective of the actual "wording" of our foundational documents.

This may be attributable to the Common Law rule of "most recent precedent" notwithstanding the fact that we operate in a hybrid system with both Code & Common Law aspects AND that a Constitution does not "evolve in a life of its own" although it can be amended.


(ed added Feb 7/'10) It's seems the "In Council community" (they actually refer to themselves this way" in the PMO?PCO and the Courts have forgotten that the system we have here is only "similar in principle" to the UK system.

1) There is no GG in the UK.
2) The whole 1867 setup was based on an evolutionary step out of colonial governance.
3) Then and now, the Privy Council in UK advises the Monarch and the Monarch must oblige - resignation of the advisor automatically follows on Bad Advice and the Monarch is held faultless (Ministerial Responsibility)
4) Responsible Government (1791) meant that money bills must be announced beforehand to the Assembly and pass in that House before enactment. A check on any further arbitrary taxes an appeal-proof (in Canada) Governor might attempt.
5) Wm L M King thought he should have the same "power" to advise his GG and his Monarch as his UK counterpart (see his arguments in the election after Meighan's Conservative Party minority failed without-the-western-Progressive-third-party's support)
6) After Byng was proved correct. King set out to circumvent a re-occurence.
a) by usurping the Head of the Privy Council under cover of war and "between" GG's in Spring of 1940
b) by organizing an absolutely marvelous job with his $1 men War Effort that the Brits naturally acceded to his request for a 'Canadian' (of the Cdn PM's choice) to be GG from then on.

No one (at law) seems to know what the "Executive" is in Canada and who populates it. No one has examined the Monarch's role (constitutionally Disallowance, Signification of Reserved Bills) since the UK Commons and Lords legislated themselves out of Canadian law in 1982)

No one seems to recognize that the delegated powers of the GG are fully intact and subject ONLY to QE2's 'as an individual' disallowance.

No one seems to appreciate the differences in the GG's 2 Constitutional roles articulated in s.12 & s 13 (Provincially ss65&66)

No one seems to be able to recognize s11 on the Privy Council is an independent appointed-for-life group of "institutional memory" advisors to the GG (who at one time was often a newbie-to-Canada Brit experiencing their first Vice Regal appointment).

Without question the Prime Minister and a few major cabinet ministers would be ex officio members (similar in principle to the specification of Ontario Department heads in that provinces 1867 Executive Council Part V s.63) but (reading the whole 1867 Bill in context of the Constitutional Act of 1791) the Legislative Powers' Cabinet of the Day were NEVER intended to hold each and every position within the Privy Council.

The Privy Council was to supervise the "Democratic Element's" (and Upper House's) actions and advise the Monarch-in-Council's (UK Cabinet) representative on the decision at hand from a "local" but permanent-government perspective

No one seems to recognize that the Prime Minister is not the EXECUTIVE OFFICER, s/he is but one advisor ... the head honcho of the lowest order on the Confederal governance totem pole.

No one seems to know that only in the Spring of 1940 (in the few months between the GG's Tweedsmuir & Athlone tenures) was the office of Clerk of the Privy Council & the Office of PM's Secretary to the Cabinet) merged by an Order in Council (PC 1940-1121)


The appointment of Wm L M King's man, Arnold Heeney (King's Diary March 13 1940) -an Order-in-Council-while-the-cat's-away usurpation (Part 1 of King's revenge for Lord Byng's refusal of dissolution - in itself a totally reasonable decision given the Official Opposition Party had more seats that the sitting PM) is at the root of the current dissolution/prorogation 08 & 09/ who's the Head of State in Canada debacle.

The de-unification of the PMO/PCO colossus/cabal can be accomplished with the stroke of a pen revoking PC 1940-1121, that done, the Prime Minister will be stripped of control over the Privy Council - an Executive institution that was intended to supervise and countermand the Legislative Power.

Finally, we must elect the GG (every other General election, by single transferable ballot, and have each GG's term run from 365 days after the Return of the Writs that elected Him/Her). An elected GG will have the mandate to exercise the 1867/1947 powers (including Commander in Chief Preamble, s.I, s.X) .... not to initiate, but to Grant Assent, Withhold Assent or Reserve Signification (1867 s.55) (new idea) until the results of a country-wide plebiscite can be assessed..




Robert Ede,




SECOND REPLY
Hello again,

The Prime Minister does have some prerogatives that are not shared withthe Governor General, as Jean Chretien demonstrated when he won the courtcase Conrad Black launched against him.

You are correct that the other prerogatives are the Governor General's,not the Prime Minister's, which is why Democracy Watch's court case is aimed at the Prime Minister's advice to the GG, not the GG's actions, inthe calling of the 2008 federal election.

You can see the Federal Court ruling on the case by searching for"Democracy Watch" on the Federal Court ruling website at:http://decisions.fct-cf.gc.ca/enHope this helps.

Take care and bye for now,

Duff Conacher



SECOND NOTE

Dear Mr Conacher,

Thank you for the prompt reply.

It expresses clearly your your position & your position on the Federal Court's recent decision

Chantal Hebert made mention of it to me and cited it as Conacher v Att Gen Sept17
I've googled & noodled, but cannot find a written version of the Judge's answer.

Can you send me a link?

Further
1) Re: Prime Minister's prerogative powers/rights" I think that in recent times (since I've been paying attention ~1992) this assertion that the Prime Minister has prerogative rights was advanced by M Chretien.

http://books.google.ca/books?id=1Rw4lSP4NcQC&pg=PA258&dq=prerogative+chretien&cd=1#v=onepage&q=prerogative%20chretien&f=false

Notwithstanding the reasons, precedents and conventions cited in the link above (NB discard anything from the UK - the GG has more power in Canada than the Queen in UK -- esp. since 1982 when the Privy Council {ie more precisely the Commons and Lords} removed themselves from Cdn lawmaking Canada Act UK
End Note 80 Scroll Down many pages
Enacted as Schedule B to the Canada Act 1982, (U.K.) 1982, c. 11, which came into force on April 17, 1982. The Canada Act 1982, other than Schedules A and B thereto, reads as follows:
...
2. 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.

The Prerogatives ARE the GG's (thru the Letters Patent 1947) and the BNA Executive Power Part III, and notwithstanding the PM's role in proffering Advice and recommendation regarding the Vice Regals use of the Office's prerogative powers, the GG need not accept the advice. Section 13 demonstrates that the GG is "in Council" only in specific circumstances whereas Section 12 clearly states that one of the options for a GG (or LtG in s65 vs s66) is to act as "an individual".


2) Your reply clearly demonstrates my letter's inability to catch your attention, since you respond to none of my points



Robert Ede,


FIRST REPLY
Dear Mr. Ede,

Thank you for your message, set out below.

Democracy Watch is appealing the Federal Court ruling on thefixed-election-date case to the Federal Court of Appeal.

The Federal Court ruling was flawed in several serious ways -- hopefullythe Federal Court of Appeal's ruling will not have these flaws. We maystill lose, but hopefully the Court of Appeal will at least rule in alegally correct way (unlike the Federal Court).

If we lose, the legally correct way for the Federal Court of Appeal torule against us would be to say that yes, passage of a law can restrictthe Prime Minister's prerogative powers/rights, but that the 2007 changesto the Canada Elections Act were not specific enough to restrict the PM'sprerogative.

If you look at the Federal Court's ruling, you will see that the judgeinstead ignored evidence, ignore the rules of statutory interpretation,and ignored the Charter issue, and overall essentially said the courtsshould not deal with such cases.

Hope this helps, and you will soon see a news release on Democracy Watch'swebsite about the appeal.

Sincerely,Duff Conacher,
CoordinatorDemocracy Watch

P.O. Box 821, Stn. BOttawa, CanadaK1P 5P9
Tel: (613) 241-5179Fax: (613) 241-4758Email: dwatch@web.net
Internet: http://www.dwatch.ca/

Since 1993, making governments and corporations more accountable to you,and changing Canada into the world's leading democracy -- please donate todemocracy now at:http://www.dwatch.ca/camp/support.html

INITIAL NOTE

ConstitutionalMonarchy Watch
Mon, Feb 1, 2010 at 7:59 PMsubject

If the GG said No, to a PM's request


Dear Sir,

The Federal Court was not too receptive to your arguments re: the 2007 Fixed date changes to The Can Elections Act.

Pity, you were getting good coverage.

Would you be happy, sad, mad or glad if the GG refused a PM's future request for a prorogation or dissolution?

PM's can ASK and recommend all they want - the Executive (BNA 1867 ss 9-16) decides. Note the Diff between s12 & s13

Canada has purposely crafted as a top-down Constitutional Monarchy, not at all a bottom-up democracy. Your complaints about "PMO/PCO" being anti-democratic are ill-founded and therefore not gaining Court support.

Try approaching the un-constitutional aspects of PM's (since Order in Council PC 1940-1121) continuing to weild the usurped powers of the GG's (s.11) Privy Council.

Next we can elect the GG Then do a "deemed disposition" of the Duties, Authority, Assets and Treasury of the Crown-in-Canada to the collective ownership of the taxpaying-resident-citizens.

QE2 and her successors can be titular head, the people can be "the Crown" to which all officials have sworn loyalty to and are accountable too (not as now) and not one piece of legislation, constitution or letterhead need be changed rce more

rce

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