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Monday, June 21, 2010

Re: "A uniquely Canadian Crown"

Dear Editor,

I would like to thank Kevin Gillespie for his well-researched and aptly-toned opinion paper (page 11 of pdf) in the Spring Summer issue of Canadian Monarchist News and wish the opportunity to expand consideration of the "practical issues" he raises, by introducing 3 additional points.

Instead of focusing on the goal of "a uniquely Canadian monarchy", I feel we would be better served by reviewing and understanding the place and role of the Monarch since the Canada Act 1982, (U.K.) 1982, c. 11, (scroll to endnote 80) .

The Canada Act 1982, other than Schedules A and B thereto, reads as follows:

An Act to give effect to a request by the Senate and House of Commons of Canada

Whereas Canada has requested and consented to the enactment of an Act of the Parliament of the United Kingdom to give effect to the provisions hereinafter set forth and the Senate and the House of Commons of Canada in Parliament assembled have submitted an address to Her Majesty requesting that Her Majesty may graciously be pleased to cause a Bill to be laid before the Parliament of the United Kingdom for that purpose.

Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

1. The Constitution Act, 1982 set out in Schedule B to this Act is hereby enacted for and shall have the force of law in Canada and shall come into force as provided in that Act.

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.

3. So far as it is not contained in Schedule B, the French version of this Act is set out in Schedule A to this Act and has the same authority in Canada as the English version thereof.

4. This Act may be cited as the Canada Act 1982.

(Notwithstanding the tangential issue that the French version -Schedule A- has never been officially created,)
(T)he essential impact of this U.K. Bill, for Canadians, is that the Monarch is no longer compelled to accept the Advice and Consent of Her U.K. Privy Council on matters concerning Canada and is as free (ie since 1982) as the Governor General in Canada has been since 1867, to act as "an individual" (see BNA/Constitution Act 1867 s.12 compared to s.13).

All Powers under Acts to be exercised by Governor General with Advice of Privy Council, or alone (non-binding heading)
12. All Powers, Authorities, and Functions which under any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, are at the Union vested in or exerciseable by the respective Governors or Lieutenant Governors of those Provinces, with the Advice, or with the Advice and Consent, of the respective Executive Councils thereof, or in conjunction with those Councils, or with any Number of Members thereof, or by those Governors or Lieutenant Governors individually, shall, as far as the same continue in existence and capable of being exercised after the Union in relation to the Government of Canada, be vested in and exerciseable by the Governor General, with the Advice or with the Advice and Consent of or in conjunction with the Queen's Privy Council for Canada, or any Members thereof, or by the Governor General individually, as the Case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland) to be abolished or altered by the Parliament of Canada.(7)

Application of Provisions referring to Governor General in Council (non-binding heading)
13. The Provisions of this Act referring to the Governor General in Council shall be construed as referring to the Governor General acting by and with the Advice of the Queen's Privy Council for Canada.

As a result, to my mind, HRH, Queen of all the Commonwealth, is already in a unique position regarding Canadian law.

I am not a lawyer, nor a qualified historian of the written and unwritten "similar in principle" Constitutions of the other member-states of the Commonwealth, but I venture to say that Canada already has a unique relationship with the Mother Crown's Officeholder (unless other Commonwealth countries enjoy similarly-phrased emancipation-of-the Queen-in Council clauses as our "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" provisions"). OOPS - seems most have a similar clause -

That said, the Royal Proclamation of 1763 through to the BNA/Constitution Acts 1867-1982 (as amended) still confer Ultimate Sovereignty and s.9 Executive Authority to HRH (as above, now unbound by the Advice and/or Consent of Her U.K. Privy Council).

The most significant of these practical matters, in my opinion are the s.56 Power of Disallowance & the s.57 Power of Signification after Reservation by the Governor General.

I will not make an issue of the Monarch's s.26 Power to add Senators, nor to the Queen's place as integral part of our tri-part s.17 "One Parliament" because these roles are also specified to be filled in Canada by Her Vice Regal appointee (as is s.15 re: Command(er)-in-Chief of the Land and Naval Militia, and of all Naval and Military Forces, see below in Letters Patent).

In addition, I will make a suggestion about our method of selecting recommendations for appointment of future Governors General because this is not described in the BNA/Constitution Acts.

But I will ask that we examine the Royal Executive powers our no-longer-in-Council Monarch enjoys to modify and/or revoke the Letters Patent Constituting the Office of Governor General and Commander-in-Chief of Canada Effective October 1 1947.

Disallowance
Simply put, the now-individual Monarch can veto any Canadian Bill within 2 years of it being received in Britain. To me, if 'A' can unilaterally nullify any Legislative Act from 'B', with no appeal & no questions - then 'A' is superior in power to 'B'.

If 'B' is the combined Executive & Legislative powers of (local) Canada as authorized in our BNA/Constitution Act(1867) and 'A' is the "Monarch-in-Council" as noted in s.56 of the same foundational document, then the Monarch (no-longer-in Council) is superior to the local Canadian government system.

Reservation
Simply put ,a Governor General, who could/can not reach a decision on a controversial, local, Canadian Bill, could refer the matter to the Queen-in-Council and if the U.K. Executive "did nothing" for 2 years the Bill is a nullity - no appeals, no questions.

Section 90 and the Veto superiority of the Confederal Executive over the Provincial combined Legislative & Executive powers.
In keeping with the above-mentioned U.K. Executive powers of Disallowance & Reservation, Section 90 outlines the identical veto/nullification powers possessed by the Confederal government over the provinces -albeit with reduced timelines.

Application to Legislatures of Provisions respecting Money Votes, etc. (non-binding heading)
90. The following Provisions of this Act respecting the Parliament of Canada, namely, — the Provisions relating to Appropriation and Tax Bills, the Recommendation of Money Votes, the Assent to Bills, the Disallowance of Acts, and the Signification of Pleasure on Bills reserved, — shall extend and apply to the Legislatures of the several Provinces as if those Provisions were here re-enacted and made applicable in Terms to the respective Provinces and the Legislatures thereof, with the Substitution of the Lieutenant Governor of the Province for the Governor General, of the Governor General for the Queen and for a Secretary of State, of One Year for Two Years, and of the Province for Canada.

In 1992, Mr Trudeau talked about the powers of Disallowance and Reservation as important omissions from the Meech/Charlottetown debates & accords - but nobody paid any attention to what he was saying (I'll wager because they didn't know what he was talking about - dear reader, don't feel badly, nobody does.)

The question comes forward immediately "Are these powers still valid?" or "These powers haven't been used since the ConFeds quashed Alberta Premier Aberhart's Social Credit legislation in the late 1930's- they're spent!"

Consider, if the never-before-used s.26 Constitutional power to appoint 'additional' Senators was valid in 1990 to end the GST stalemate, by what measure or notion would one claim that any other as-written Constitutional power or written provision is not valid, or is spent?.
Contemporaneous Newsclip -NB Mr Mulroney asserts his ignore-ance of the Constitution he has just played a trump-card from - the Commons is NOT, and was never intended to be considered superior to the Senate.

Amend Revoke the Letters Patent re: the GG & Commander in Chief
The powers and mandate of the Governor General were re-stated (revoking prior 1931 Instructions) by new Letters Patent in 1947.

Clause 2 of the Letters Patent lays out a virtually limitless mandate for the GG to "exercise all powers and authorities lawfully belonging to Us in respect of Canada, and for greater certainty but not so as to restrict the generality of the foregoing to do and execute, in the manner aforesaid, all things that may belong to his office and to the trust We have reposed in him according to the several powers and authorities granted or appointed him by virtue of the Constitution Acts, 1867 to 1940 and the powers and authorities hereinafter conferred in these Letters Patent and in such Commission as may be issued to him under Our Great Seal of Canada and under such laws as are or may hereinafter be in force in Canada." save and except for the above-noted U.K. Executive's Disallowance & Reservation powers

BUT clause 15 of the document reserves the Monarch(then-in-Council)'s power to nullify every provision it contains.
XV. And We do hereby reserve to Ourselves, Our heirs and successors, full power and authority from time to time to revoke, alter, or amend these Our Letters Patent as to Us or them shall seem fit.

Given these powers that still reside in the Mother Crown's Office (with or without Advice, and/or Advice and Consent of Her UK Privy Council, or some of it's members, or as an individual) it would be truly senseless to attempt to make amendments to the Canadian Monarchy without creating & defining an 'Office' and devising a method for selecting an Officeholder that could/would/might be able to assume these three powers.

Given also that "The Crown" holds title to the "Reservations in the Original Crown Grant(s) of Land" across the country (a discussion of the fee simple "interest" and the bundle of rights granted to "freeholders" is a related by too lengthy topic for this article) and of course HRH "owns" The Treasury, the Crown Land and every other asset in Canada (we have no property rights in Canada for this "can of worms" reason, (save a few time-limited patent, copyright & intellectual property rights) no allodial-type, 'real property' rights and no unconditional ,legal rights and/or freedoms (this later mess is due to 1982 not 1763 thru 1867).

No point in tinkering with the Monarchy without thinking some of this through completely too.
As Mr Gillespie points out amending the Constitution in relation to Const.Act 1982 s, 41(a) "the office of the Queen, the Governor General and the Lieutenant Governor of a province" requires 100% provincial consent and thus would bring up hundreds of provincial "tit-for-tat" issues presented for simultaneous inclusion in any such amendment.

In fact until we "re-define" who/what/why and how about the Office and Mandate of the Canadian Monarch (and its Vice Regal 'local' representative) there's not much reason to worry about the Officeholder's lineage and/or rules of succession.

To me, as priority to any changes regarding the Monarchy, intensive consideration needs to be focused on re-establishing the Executive Offices in Canada by a) giving the GG a popular mandate to exercise Her/His as-written veto powers (by selection of our Royal recommendation based on elections at-large) and b) severing control of the Privy Council from the Legislative Orders Majority-Leader, by reversing one solitary 1940 Order in Council enacted (?coincidence?) after Lord Tweedsmuir's death and before Lord Athlone arrived -see King's diary

If we first restored (ie re-formed it "in its own image") the hierarchy of checks and balances built into our wonderfully suitable 1867 format (what vision and forethought!!) We then might be in an informed-enough position to decide "Whose Dominion is Canada?" and therefore who's interest does the Crown and Her Vice Regal represent?

Before we can decide on how to select our 21st Century Head Of State, let's decide whether we'll follow the existing as-written Constitution.

If ... after being exposed to these blatantly-obvious facts, we decide to continue NOT following the Constitution (because the Monarch or no recent Governor General or Lt Governor seems willing to dare exercise their mandate) then we have no one to blame but ourselves for allowing the Legislative Order's lunatics to continue to botch up the administration of the asylum's treasury, assets and revenue-collection for services-provided systems.

Once we know our own existing system and follow it I believe the solution falls into place - with a simple 'change of mind' (a deemed disposition).

If Canadians can assume the role of proprietors of Canada (after so long as benignly trusting subjects of the Legislative Assemblies' Majority Leaders it won't be easy) and act "as if" they had consciously delegated the role of Benevolent Autocrat to HRH, the 'problem' is solved - No amendment, no legislation, not a change to one piece of Letterhead.

Once Canadians believe they are the Source of Sovereignty in Canada -everyone else in the existing hierarchy being returned to their original places as honour-bound "Stewards" of that Sovereignty - they will be forced to grow-up into citizens (with assets to grown and obtain returns from) instead of continuing to lull themselves to death under the weight of a debt-burdened nanny-state culture, with diminishing benefits, additional costs and no stake in the disposition of assets or allocation of the revenue burden.


I remain,

a loyal Canadian subject of the Crown.

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