By Me. Vincent Pouliot

People have been talking about Senate reform almost since Canada became a nation. But, to date, there has been something fundamental lacking in the discussion. We do not need to reform the Constitution to ensure the provinces are fairly represented in the Senate. We need only apply, with integrity, British constitutional principles to the letter of the law.

The right to a constitutional government belongs to the people according to British doctrine, because Man is recognised to be perfectly free to order his actions and dispose of his person and possessions without asking leave, or depending on the will of any other person. It follows then, according to British constitutional principles, that the people must authorise the exercise of power by our executive government.

Because Canada is a federation of provinces, the people's political will regarding how they wish to govern themselves is divided. In general, according to sections 91 and 92 of our constitution, if this political will concerns purely local issues, the provinces are vested with the exclusive jurisdiction to govern the matter, otherwise the matter falls under federal jurisdiction.

The Supreme Court of Canada explains, in the Reference* concerning the secession of Quebec, that its role is not to delimit the jurisdictions of the federal and provincial governments. Rather, it is to ensure the integrity of the constitutional framework within which our democratically elected leaders can lawfully conciliate the unity and the diversity of Canada.

Section 22 of our constitution establishes the number of senators representing each province in the Parliament of Canada. This section provides for the participation of the provinces in the legislative process of our federal government so that they may lawfully represent and protect their local and regional interests within the Canadian federation.

Because the senators represent the provinces in this legislative process, it follows that when the senators approve a law, in theory and legally, they approve it on behalf of the provinces. Thus, the provinces approve that the federal government has the jurisdiction to regulate every matter touched by the law, as well as approving the manner, the extent of this regulation and the taxation required to enforce its observance throughout Canada with no further regard for their own purely local interests.

Section 32 requires that the Governor General of Canada fill the vacancies that occur in the Senate by persons who are "fit" [to represent the provinces - according to s. 22]. Section 12 explains that the "Powers, Authorities, and Functions" of the Governor General are vested in or exercisable by him with the advice and/or consent of those persons "as the case requires". I submit that "as the case requires" must be understood to mean "as required by the full and honest application of British constitutional principles to the case".

But the practice whereby section 32 is applied is clearly unconstitutional and contrary to the common law rules according to which the constitution of Canada must be interpreted. To whom does it belong to appoint and mandate a provincial representative with a power of attorney? This right obviously belongs to the province whose rights are being discussed and determined by the act of her representative. Under common law rules, it certainly does not belong to the Prime Minister of the government of Canada to select who shall represent the provinces in the Senate.

Under the British constitutional model of government, the question is formulated rather as follows: Who is authorised to advise the Governor General of the wishes and interests of the provinces regarding the appointment of their representatives in the Senate?

The Supreme Court's reference decision establishes the foundation for an appeal to the courts to demand that the intent of Confederation be respected in the interpretation of the Constitution Act. As regards the representative character of the Senate, this intent is expressed in the 14th resolution of Quebec. It states that the first senators shall be appointed "so that all [provincial] political parties may as nearly as possible be fairly represented."

It seems to me that this representative character of the Senate is true to the constitutional principles which require that the people authorise the exercise of power by the State. By democratic election, the people confide the authority in the members of the provincial parliaments to represent their wishes and interests concerning the government of their province. The people confide this authority to their MPPs (or MLAs) not only for their personal qualities, but also, to apply the principles and policies advocated by their political party. The party [more like the party caucus] confides this authority to persons they believe fit to represent their views in the Senate. Nothing prevents the party from demanding that their choice of representative sign an undated resignation to guarantee that they maintain this confidence, and thus, the authority to act on their behalf and on behalf of their constituents.

The Supreme Court also explains in the Reference decision that the representative and democratic character of our political institutions were simply assumed by our constitution. With hindsight and considering the history of the constitution of Canada, what was assumed was that the Senate would be constitutionally represented in the Governor's council to advise him of, among others, the wishes and interests of the provinces regarding the appointment of their representatives to the Senate.

Implementing the scheme of Confederation would constitute a Parliament within which the political will of Canadians would be fully represented. Regarding Canada's general government, their political will would be represented in the House of Commons by their federal political parties. Regarding their local government, their political will would be represented in the Senate by the proportional representation of their provincial political parties.

The resulting constitutional balance between the two Houses of Parliament would require and empower the Governor General - as was the case in the province of Canada - to facilitate the conciliation of the unity and the diversity of Canada according to the well-understood wishes and interests of the people. This constitutional balance also gave him the influence he required to ensure that the government remained constitutional, respectful of the law and in the service of the people.

It seems to me the provinces should work together to ensure that the senators are appointed with the authority to act on their behalf.

Vincent Pouliot, Avocat/Lawyer

Verdun, Qc. (Intervener re: the Secession of Quebec, at the Supreme Court of Cda.)

*The Supreme Court reference decision can be found in the Volume 2 of the 1998 Supreme Court Reports, at page 217.

For those interested:

If you contact Me. Pouliot by e-mail - vcp@total.net - he will transmit to those interested: The Supreme Court Reference on the secession of Quebec, the consolidated Constitution Act of Canada, the 72 Resolutions establishing Confederation (1864), the Resolution adopted by the House of Assembly of the Province of Canada to guarantee Responsible Government.

A Truly Federal Model of the British Constitution (Part 2)

In the February 2003 issue of Dialogue, Maurice King complains that our Prime Minister has all the powers of a dictator. In the September issue, Bill Dwyer proposes that Confederation be re-negotiated because it has become a "politically purchased tyranny" and he wonders… how this came to pass.

The short answer to that question is that immediately following the adoption of the British North America Act in March of 1867, the first Governor General of Canada of Canada decided with John A. Macdonald that the Senate would not be constitutionally represented in the Privy Council and Cabinet of our federal government ¹. By excluding the Senate from the inner circle of power, it permitted the Governor General to make a deal with Macdonald. The Governor General would exercise his powers in our internal affairs as it pleased the Prime Minister if, in return, the Prime Minister would help him enforce Her Majesty's Instructions regarding Canada's role in international affairs.

Following the First World War, Prime Minister MacKenzie King was determined to be rid of the influence of Great Britain in Canada. The result was the Statute of Westminster, which recognised that the Governor General was no longer an officer of the Queen subject to Her Instructions. The Prime Minister then insisted that the Governor General of Canada be appointed upon his advice.²

In 1947, King George VI, by Letters Patent still in force today, authorized and empowered "Our Governor General, with the advice Our Privy Council for Canada or of any members thereof or individually as the case requires, to exercise all powers and authorities lawfully belonging to Us in respect of Canada."³

The Governor General, as representative of the Queen, commands the Sovereign Prerogative. Because Canadians are a "free and self-governing people"⁴, this Sovereign Prerogative, simply put, consists of the power of the people to govern themselves as they wish. ⁵

The Prime Minister controls the assistance, counsel and information the Governor General requires to exercise the lawful powers and authorities belonging to the Sovereign.⁶ With no opposition in the Privy Council to advocate respect for the lawful limits to the Prime Minister's constitutional authority and the will of Parliament, it has come to pass that he exercises the Sovereign Prerogative through the Governor-in-Council upon his own advice, that is: as he wishes.

Thus unconstrained, he selects the Governor General, he chooses who shall represent the provinces in the Senate and commands the loyalty of some 2,600 other of Canada's highest political appointees. He can threaten and bribe our members of Parliament. He can deny the accountability of the Executive to the Legislative branch of government. Given the nature of Man in Power, the Prime Minister's Office controls the legislative agenda, the political process and the dissolution of Parliament for the benefit of their partisans.

But this was not what was intended by Confederation and it is not the constitutional framework established in law by the Constitution Act for the peace, order and good government of Canada.

The Intent of Confederation

The Maritime Provinces were not willing to lose their individuality in Confederation.⁷ They were able to agree to a federal union with the province of Canada because its unique model of Responsible Government fostered the diversity of its two founding peoples.

This model of government was unique in that two first ministers led the Cabinet, one from each of Upper and Lower Canada, and a coalition of political parties governed the province. (Remember those history lessons about the first LaFontaine-Baldwin ministry under Responsible Government and the Macdonald-Cartier ministry leading to Confederation!)

The Province of Canada was able to convince the Maritimes that their individuality would be protected under the union based on an extension of the operation and the results of the Canadian model of government. The premier of Prince Edward Island, one of the Fathers of Confederation, reported John A. Macdonald to have said during the Debates on Confederation:

"Nominally there was a legislative union in Canada, yet as a matter of fact, since the union of 1841 it was a federal union: in matters affecting Upper Canada solely, members from that section exercised the right to exclusive legislation, while the members from Lower Canada legislated in matters affecting their own section"⁸.

To understand the constitutional framework of this unique model of Responsible Government, how it was perfected by Confederation and how it was established by law in the Constitution Act, we need to understand the essential forces that drove its evolution.

The Evolution of the Canadian model of Responsible Government

Following the Rebellion and Insurrection of the Canadas in 1837, Lord Durham was dispatched by the Imperial Government of Great Britain "to devise such reforms in the system of their government as might... lay the foundations of order, tranquillity, and improvement." He construed his mandate as follows:

If a system can be devised which shall lay in these countries the foundation of an efficient and popular Government, ensure harmony, in place of collision, between the various powers of The State, and bring the influence of a vigorous public opinion to bear on every detail of public affairs, we may rely on sufficient remedies being found for the present vices of the administrative system. ⁹

Lord Durham reported that the colonial constitutions were defective: the Executive governments of both Upper and Lower Canada had managed to usurp the Governor's power in all internal affairs. Though the people were represented in the House of Assembly to legislate according to their needs, the Governor was appointed to ensure respect for Her Majesty's confidential instructions (designed chiefly to maintain the monopoly of trade for the benefit of Great Britain).

The Governor needed his Executive to manipulate the Assembly to enforce these instructions by law. In return, they demanded free reign to exercise his powers in internal affairs for the benefit of their partisans, the Family Compact in Upper Canada and the British Party in Lower Canada.

The members of the Upper House of the colonial Legislatures (the Legislative Council) were appointed by the Governor. The Executive staffed them with their partisans to veto the initiatives and otherwise control the House of Assembly.

The ensuing conflict of powers between the Assembly and the Executive resulted in the denial of the people's constitutional liberty, the corruption of their moral and material values, the inability of government to provide necessary and obvious reforms and the complete disintegration of the State.

Lord Durham recommended the union of Upper and Lower Canada and a review of the practices applied to implement the law of the constitution:

It needs no change in the principles of government… to supply the remedy which would, in my opinion, completely remove the existing political disorders. It needs but to follow out consistently the principles of the British Constitution, and introduce into Government those wise provisions, by which alone the working of the representative system can in any country be rendered harmonious and efficient.

In 1840, Upper and Lower Canada were united under one legislature by the Union Act to form the Province of Canada. There was to be one government and one law governing the whole of the province regardless of local distinctions. (This is known as a legislative union.)

Louis-Hippolyte LaFontaine and Robert Baldwin agreed to work together to promote the moral and material prosperity of Canada.10 They were determined to ensure "an administration or executive government responsible to the province for its conduct." 11 The result of their efforts, however, also established the federal nature of the rule of law in Canada.

On 3 September 1841, the House of Assembly adopted the principles that were to ensure Responsible Government. These principles acknowledge that the Governor General is the Head of the Executive government and representative of the Sovereign, but they require that he manage our affairs so that the "rule of government shall be the well-understood wishes and interests of the people". They guarantee this "rule of government" by providing that "the chief advisers of the representative of the sovereign* constituting a provincial administration under him**, ought to be men possessed of the confidence of the representatives of the people"¹².

^* Cabinet in its role as the Governor's Executive Council now called the Queen's Privy Council

^** Cabinet in its role as ministers of the executive government

The Union Act entitled both Upper and Lower Canada to an equal number of representatives in the House of Assembly irrespective of the number of their inhabitants. Given that the people of each of these two regions had their own unique language, religion, system of law and public institutions, the House of Assembly naturally divided into two sections. Each section, equally represented in the Assembly, demanded equal powers and privileges. They each maintained that the principles of Responsible Government entitled them to be constitutionally represented in the Governor General's Executive Council and Cabinet to guarantee the rule of government according to their own wishes and interests.13

In 1845, LaFontaine, Baldwin and almost the whole of Cabinet resigned. They explained to the Assembly and to the people, the mockery of representative government as practised by Governor General Metcalfe. Francis Hinks, finance minister in the defunct LaFontaine-Baldwin ministry, started a newspaper to advocate "Responsible Government" 14:

"To announce that The Pilot will advocate "Responsible Government" at the present moment would be a vague description. It is necessary to state, further, that it will maintain the principles of Lord Durham's Report - the principles of the British Constitution - the principles established by our ancestors at the price of their blood, and without which there can be no security of the peace and prosperity of any country.

It must never be forgotten that the essence of responsible government is a control over the royal prerogative. If the representative of the Sovereign is in practise to make appointments according to his own personal opinion, and to reject bills relating to our local affairs, passed by both Houses of the Legislature, because he thinks them unnecessary or inexpedient, it would be better that the mockery of representative institutions was abolished.

The prerogatives of the British Crown are so extensive that, without Responsible Government, it would be preferable to live under the government of a Russian or Austrian despot.

In De Lome's work on the Constitution of England, after describing the various prerogatives, it is said:- "In reading the foregoing enumeration of powers with which the laws of England have entrusted the king, we are at a loss to reconcile them with the idea of a monarchy which we are all told is limited. The king not only unites in himself all the branches of executive power, he not only disposes without control of the whole military power of the State, but he is, moreover, it seems, master of the law itself, since he calls up and dismisses the legislative bodies. We find him, therefore, at first sight, invested with all the prerogatives that ever were claimed by the most absolute monarchs; and we are at a loss to find that Liberty which the English seem so confident they possess."

The check on all these prerogatives is a bona fide system of Responsible Government, under which the people, through their representatives in Parliament, can exercise a substantial control over their government. The advisors of the former, being responsible, can be removed by a vote of want of confidence, if their measures or their appointments to office are unsatisfactory.

It is impossible for any government to bribe the mass of the people, and, therefore, the corrupt purchase of individuals with a view to obtain parliamentary support, can only result in the ruin of those who resort to such practices.

On the other hand, it is the duty of every government to consult the wishes of the people, and those wishes are properly and fairly expressed by their representatives.

The influence of the people on their representatives in the Assembly was such that Governor General Metcalfe was unable to reconstruct a Cabinet to support his government of the province. He remained essentially alone, his government paralysed, until Lord Elgin replaced him.15

As a result of this experience, the Imperial government finally agreed that, " 'it is neither possible nor desirable to carry on government of any of the British provinces in North America in opposition to the opinion of the inhabitants'. No longer was a Governor to contrive to harmonize colonial views with imperial requirements."16

In 1846, the Imperial government embraced free trade to permit the expansion of its industrial empire. Mercantilism, and with it, the necessity to regulate manufacture in, and trade with its colonies, was discarded. This removed the last impediment to Responsible Government in the colonies.17

In 1847, Lord Elgin was dispatched as Governor General to establish Responsible Government. He was to govern according to the principle underlying the British constitutional Monarchy whereby "The King can do no wrong"... because his ministers bear the responsibility for every act done in the Crown's name. 18

Lord Elgin conceived the primary function of the Governor General to be " that he should identify himself with no party, but make himself a mediator and moderator between the influential of all parties; that he should have no ministers who did not enjoy the confidence of the Assembly, or, in the last resort, of the people, and that he should not refuse his consent to any measure proposed by his Ministry, unless it were of an extreme party character such as the Assembly or the people would be sure to disapprove." 19

Following the general election in 1848, Lord Elgin called upon Louis-Hippolyte LaFontaine to form the government. LaFontaine accepted on the condition that Robert Baldwin was given an equivalent position in his Executive Council and Cabinet, so that both Upper and Lower Canada would have a political leader in whom they could confide their government. 20 Lord Elgin accepted this proposition and requested that the two leaders determine together the representative character of their Ministry and agree upon a political program, which their coalition government would implement upon its approval by the majority of the united House of Assembly.21

One of the first acts of the LaFontaine-Baldwin ministry was to reform the membership of the Legislative Council to reflect the balance of political parties in the House of Assembly. 22 The objective of this reform was to ensure that the political views of the Legislative Council were in harmony with those advocated by the duly authorised representatives of the people in the House of Assembly.

Because Upper and Lower Canada were equally represented in the Assembly, no political program could gain the approval of a majority if it touched upon matters of custom or culture that were unique to their British or French heritage. The leaders of Upper and Lower Canada therefore had to conciliate the legitimate constitutional interests of their constituents to exclude these matters of local concern from their common political program. It was accepted that law having effect only in one or the other region of the province would govern these local matters. It followed that this law required only the approval of the representatives elected to the House of Assembly from the region affected by this local law. 23

Though it was within the power of both Upper and Lower Canada to assimilate their respective French-catholic and English-protestant minorities, both managed their legislation to ensure the individual right of their inhabitants to practise the religion and the language of their choice. This generosity, however, was based on the certain knowledge that any abuse of the minority in one region would solicit the same abuse or worse by the majority in the other. 24

The Union Act provided only one government to administer these three sets of law: the law common to all of Canada and the local laws of both Upper and Lower Canada. Because the French-catholic community of Lower Canada was more inclined to seek moral prosperity while the English-protestant community tended to seek material prosperity, Upper Canada was paying fully 75% of the cost of government.

Despite the fact that the population of Upper Canada was fast outnumbering the population in Lower Canada and despite the prospect that this disparity was accelerating, the equal representation of the two Canadas in the legislature required their government to spend the public revenue equally in each. When an investment in one section was deemed necessary and worthwhile, an offsetting amount had to be allocated to the other section 25 (which was used for political purchase).

The Upper Canadians increasingly demanded that this injustice be repaired through constitutional reform. George Brown agitated for representation by population to permit the influence of the people to transpire through the Assembly, not only in matters of principle but also, to check the cost of the government they had to bear.

Though this demand was legitimate, it would deny the right of both Upper and Lower Canada to a leader in Cabinet. This would undo the political structure, the democratic mechanism and the balance of powers that ensured the federal nature of Canada….

John A. Macdonald explained:

(...) if some such solution of the difficulties as Confederation had not been found, representation by population must eventually have been carried; no matter though it might have been felt in Lower Canada, as being a breach of the Treaty of Union, no matter how much it might have been felt by the Lower Canadians that it would sacrifice their local interests, it is certain that in the progress of events representation by population would have been carried; and, had it been carried – I am speaking here my own individual sentiments – I do not think it would have been in the interest of Upper Canada. For though Upper Canada would have felt that it received what it claimed as a right, and had succeded in establishing this right, yet it would have left the Lower Province with a sullen feeling of injury and injustice. The Lower Canadians would not have worked cheerfully under such a change of system, but would have ceased to be what they are now – a nationality, with representatives in Parliament, governed by general principles, and dividing according to their political opinions – and would have been in great danger of becoming a faction, forgetful of national obligations, and only actuated by a desire to defend their own sectional interests, their own laws, and their own institutions. (...)

George-Étienne Cartier explained:

The consequence of representation by population would have been that one territory would have governed the other, and this fact would have presented itself session after session in the House, and day after day in the public prints. The moment this principle had been conceded as the governing element, it would have initiated between the two provinces a warfare which would have been unremitting.²⁶

After years of discussion to determine how this reform could be accomplished, the Assembly resolved to perfect the federal system by establishing local governments for both Upper and Lower Canada; each region would henceforth be financially responsible for the administration and economic consequences of its own local laws. As George Brown put it:

All local matters are to be banished from the general legislature; local governments are to have control over local affairs, and if our friends in Lower Canada choose to be extravagant, they will have to bear the burden of it themselves.²⁷

To protect their sovereignty from American expansion, the Assembly also decided to invite the other provinces to join in a federal union.

To accomplish this federal union, the true functionality of the British parliamentary model of government was adopted by restoring the original representative nature and purpose of the House of Lords [i.e. to represent the political interests of the feudal territories in parliament with the King 28]. The House of Lords would be adapted to the democratic principle evolved under the British Constitution to become a Senate duly constituted with the authority to represent the political will of the people regarding matters of "a private or local nature."29

During the debates on Confederation, John A. Macdonald said:

To the Upper House is to be confided the protection of sectional interests; therefore is it that the three great divisions (Upper Canada, Lower Canada and the Maritime Provinces) are there equally represented, for the purpose of defending such interests against the combination of majorities in the Assembly."³⁰

"To confide", in constitutional terms, means "to entrust the authority for the time being". Authority can be confided only by a person legally entitled to do so. In our system of government, by the approval of the agenda set out in the Speech from the Throne, Cabinet is confided the authority to govern on behalf of the people so long as they possess the confidence of our duly authorised representatives in Parliament. When our representatives vote a motion of non-confidence, in effect, they revoke this authority. Cabinet, then, must resign because they no longer possess the legal, legitimate and lawful capacity to act on our behalf.

By what means was the Upper House to be confided the protection of the local and regional interests of the provinces?

The 33 delegates of the provinces, representing almost all of the provincial parties, and thus, almost the whole range of legitimate constitutional interests of the provincial inhabitants 31, adopted the 14th resolution of Confederation. It states that the senators shall be appointed "so that all [provincial] political parties may as nearly as possible be fairly represented." 32

Confederation, then, simply applied to the Senate the practice established to maintain harmony between the political views of the Upper House and those of the House of Assembly of the Province of Canada. By provincial election, the people authorise the members of their legislature to implement the policies propounded by their political parties. Inherent in this authority is the authority to select and empower representatives of their party in the Senate to protect the constitutional liberty (i.e. the exclusive jurisdiction) of their constituents to implement these policies.

Though this resolution seems to refer only to the first selection of Senators, this representative character of the Senate was simply assumed or taken for granted in the Constitution Act according to the Supreme Court of Canada. 33

The Law of the Constitution

John A Macdonald also said: "In the constitution it is proposed to continue the system of Responsible Government, which has existed in the province since 1841..."³⁴

The system of Responsible Government in the Province of Canada was based on the equal representation of Upper and Lower Canada in the Assembly, and thus, on the equal powers and privileges of the two sections of the Assembly. To renew this system of government for the Dominion of Canada both the Senate and the House of Commons would have to share the same representative nature and the same powers and privileges.

Section 18 of the Constitution Act states that the powers and privileges of both the Senate and the House of Commons stem from the House of Commons of Great Britain. 35 Until legislation is lawfully enacted providing differently, both Houses must be entitled to the same powers and privileges. Thus both Houses would be equally entitled to constitute a leader in the Queen's Privy Council with the authority to advocate the exercise of the Sovereign prerogative according to the well-understood wishes and interests of their constituents. And both Houses would be equally entitled to revoke this authority if the advice proffered by the Privy Council does not reflect their views or if Cabinet is unable or unwilling to implement them in the administration of government.

An Act to define the privileges, immunities, and powers of the Senate and House of Commons (still in force today), sanctioned on 22 May 1868, confirms this understanding. It states:

1. The Senate and the House of Commons respectively, and the Members thereof respectively, shall hold, enjoy and exercise such and the like privileges, immunities and powers as, at the time of the passing of the British North America Act 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof, so far as the same are consistent with and not repugnant to the said Act.

Furthermore, both Houses of the Canadian Parliament were explicitly granted the same privilege regarding the advisability of enacting federal legislation. Section 91 states:

"It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and the House of Commons, to make laws for the peace order and good government of Canada..."

D'arcy McGee, a most respected and influential Irish-Catholic living in Quebec at the time of Confederation, said:

"...they [the Fathers of Confederation ] had not gone into the Chamber to invent any new system of Government, but had entered it in a reverent spirit to consult the oracles of the history of their race. They had gone there to build, if they had to build, upon the old foundation - (Cheers) - not a showy edifice for themselves, with a stucco front, and a lath and plaster continuation - (Laughter) - but a piece of solid British masonry, as solid as the foundations of Eddystone..." ³⁶

"...the cardinal fact as I see it [is] that we have here, by our own act, selected the monarchical form of government for ourselves and for our children; that for them and for ourselves, we have entered into this solemn compact to uphold the constitutional monarchy in this country...

“As to the life Senate, we have all the best constitutional authorities with us, that a second Chamber ought not to stand on the electoral basis of the first; and, so long as our Senate continues to be a fair representation of all our real interests, so long it will be looked up to and obeyed. If it is to be undermined it will be by the abuse of Executive patronage, and not by the substitution of the principle of selection for that of election, as applied to that House." ³⁷

Conclusion

By now, I hope you understand that when the first Governor General of Canada decided not to apply the system of dual prime ministerships1 to the Constitution Act, in fact, he excluded the Senate from his Council. As a result, the Prime minister was able to exclude the provinces from the Senate and deny the Governor General the balance of powers he requires to ensure that the rule of government is constrained by the well-understood wishes and interests of the people. 36

Having usurped the power of the people to govern themselves as they wish, the Prime Minister of the government of Canada has to make us believe that it is legitimate for the Queen to make laws unlawfully, that it is honourable for the Governor General not to honour her duty under the law, that he is lawfully authorised to tax and spend and otherwise rule as he wishes because he can manipulate the majority of Parliament to stand and sit when told.

To maintain his power he needs to confound, rather than exemplify, the fundamental moral values Man requires to judge right from wrong, good from evil, honest from dishonest until "political correctness" becomes the measure of our civility.

In a following article I hope to detail how this constitutional framework operates on the nature of Man in Power to ensure efficiency and harmony in the administration of our government.

FOOTNOTES

Notes to Canada's Promise -Part 2-

¹ W. L. Morton, THE CRITICAL YEARS: THE UNION OF BRITISH NORTH AMERICA 1857-1873, pp. 218-9

"The last touches to the inauguration of the Dominion and its new government had been applied in London. Monck was asked to serve an extended term as Governor General; to become after July 1, when the new Dominion would be proclaimed, Governor General of Canada. Monck in turn asked Macdonald, as elected chairman of the Westminster conference, to become Prime Minister and to propose the names of the first Dominion cabinet. The old system of dual prime ministerships, he said firmly, was to end."

² Peter W. Hogg, CONSTITUTIONAL LAW OF CANADA, pp. 143-144

"the imperial conference of 1926 declared that the Governor General was not the 'representative or agent' of the British government, and the imperial conference of 1930 resolved that henceforth the Governor General would be appointed by the Queen acting on the advice of the ministers of the dominion concerned. Since 1930 all Canadian Governors General have been selected by the Canadian Prime Minister with the Queen merely formalizing the appointment. It is also the Canadian Prime Minister who determines the Governor General's term of office, and the Canadian Parliament which fixes his salary."

³ [No31] Letters Patent constituting the Office of the Governor General of Canada

⁴ Opening address of the Parliament of the new Dominion of Canada by the Governor General and Queen's Representative, Lord Monck, Senate Debates, 1867, p 2-3

"In a similar spirit of respect for your privileges, as a free and self-governing people, the Act of Union, as adopted by the Imperial Parliament, 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."

⁵ Albert Venn Dicey (The law of the Constitution p 420) states:

"Prerogative is the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown."

[Note that the sovereign prerogative is reduced by legislation, which, in effect, determines the prerogative in law thereby eliminating any discretion or arbitrariness regarding the matter regulated by the law.]

M J C Vile defines the prerogative as follows:

"A King of Great Britain is that supreme magistrate, who has a negative voice in the Legislature. He is entrusted with the executive power, and several other powers and privileges, which we call prerogative, is annex'd to this trust."

Constitutionalism and the Separation of Powers, 1967, p 73

[Note that Dicey speaks of "authority" while Vile speaks of "powers".]

M J C Vile, in his introduction, warns that he is unable to distinguish 'authority' from 'power'. He refers to authors that seem to use both words interchangeably. Even our Constitution Act uses the words interchangeably. Section 9 states " The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen". The French version states "À la Reine continueront d'être et sont par la présente attribués le gouvernement et le pouvoir exécutifs du Canada". (my underline)

The essence of the British Constitution, however, is the separation of the power to govern from the authority to govern. It is when the authority belonging to the people is united with the executive power of government that government is vested with the legitimate power to act on behalf of the people.

⁶ The 2nd principle of Responsible Government states: That the head of the Executive Government of the province being, within the limits of his government, the representative of the Sovereign, is responsible to the Imperial authority alone; but that, nevertheless, the management of our local affairs can only be conducted by him, by and with the assistance, counsel and information of subordinate officers of the province.

Robert Macgregor Dawson, The Government of Canada, pp. 172, 173, 177

"Even the wisest Governor can do little or nothing if he is not apprised of Cabinet business...

he has not since at least 1856 sat regularly in Cabinet meetings, and thus has no way of acquiring knowledge except with the active assistance of the prime minister.

Thus, the Imperial Conference of 1926 (leading to the Statute of Westminster), while providing for the new status of the Governor, felt it necessary to add that 'a Governor-General should ... be kept as fully informed as is His Majesty the King in Great Britain of Cabinet business and public affairs.'

... the necessary information is rarely forthcoming, and consultation on matters of state has almost disappeared.

The Governor's dependence on the Dominion government has, since 1930 become complete; for he owes to it his appointment, his salary and allowances, and his tenure of office."

J.R. Mallory, The Appointment of the Governor General: Responsible Government, Autonomy, and the Royal Prerogative p. 106, 98

" It was clear from the very beginning that there was a danger that dominion autonomy might mean in practice that the King, like the Governor General, would be speedily relegated to a remote eminence whose name was lent to decisions about which he was not even informed."

[The] constitutional evolution in the dominions has reduced the functions of the head of state to those of a rubber stamp..."

Eugene Forsey, Essays on the Canadian Constitution, pp. 29-30

" But if a Prime Minister tries to turn parliamentary responsible government into unparliamentary irresponsible government, then only the Crown can keep Government responsible to Parliament and Parliament to the people; only the Crown can prevent parliament from degenerating into a rubber stamp for the Prime Minister... - only the Crown can prevent the Prime Minister, prime servant, from degenerating into a prime despot, the whole process into an elaborate farce, swindling the public at the public expense, with the people helpless to protect itself.

The Crown is the embodiment of the interests of the whole people, the indispensable centre of the whole parliamentary democratic order, the guardian of the constitution, ultimately the sole protection of the people..."

⁷John A. Macdonald, Confederation Debates, p. 29

"Now, as regards the comparative advantages of a Legislative and a federal union, (...) on looking at the subject in the Conference, (...) we found that (...) any proposition which involved the absorption of the individuality of Lower Canada – if I may use the expression – would not be received with favor by her people. We found too, that (...) there was as great a disinclination on the part of the various Maritime Provinces to lose their individuality, as separate political organisations."

⁸ John Hamilton Gray, Confederation, p 205

⁹ Lord Durham's Report on British North America

¹⁰ S.B. Ryerson, UNEQUAL UNION: Confederation and the roots of Conflict in the Canadas, 1815-1873, p 106

John Boyd, SIR GEORGE-ETIENNE CARTIER, Bart., His Life and Times, p 70

LaFontaine's reform program attached to the Lord Elgin's letter to Lord Grey on 12 November 1847

¹¹ S.B. Ryerson, UNEQUAL UNION: Confederation and the roots of Conflict in the Canadas, 1815-1873, p 116

¹² S. Leacock, Baldwin LaFontaine Hinks: Responsible Government, p. 109

¹³ Reminiscences in the life of Sir Francis Hinks, K.C.M.G., C.B. p150-155

Following the resignation of the LaFontaine-Baldwin Ministry under Governor General Metcalfe, negotiations were attempted with LaFontaine to have him join the Draper ministry. LaFontaine responded:

"(...) Why, according to your principles, not form an administration for Lower Canada with the aid of someone constitutionally charged to do so ? An Administration thus formed would be strong with the influence that the support of the majority of our representatives would give it, and would make that influence legitimately prevail in the Council, and in return would give to the country all the guarantee which necessarily results from the control which public opinion would exercise over it.

(...) But it is said to you – We only wish to join to us some Canadians as French-Canadians. From that moment those who thus enter the Ministry enter it not in consequence of constitutional right, not by the action of opinion of their countrymen, but only by favour, by the good pleasure of a Governor. From that moment, as we learn by experience, they are without influence (...) they soon cease to feel the salutary check of the opinion of their fellow citizens; on the other side they accustom themselves only to consult their personal interests, and often, even their passions.

(...) I arrive, then, at a conclusion regarding which you cannot misunderstand me. It is that, as regards the Administration, Lower Canada should have what is granted to Upper Canada -–nothing more, but also nothing less."

¹⁴ Reminiscences in the life of Sir Francis Hinks, K.C.M.G.,C.B. pp 125-126

¹⁵S. Leacock, Baldwin LaFontaine Hinks: Responsible Government, p. 236

¹⁶ J.M.S. Careless, The Union of the Canadas, p 116

¹⁷ S.B.Ryerson, UNEQUAL UNION, Confederation and the roots of Conflict in the Canadas, 1815-1873, p 163

¹⁸ The King could do no wrong before the civil wars (1637-1649) between Parliament and the King of England because he governed by "divine right". Rebellion was not only treason, it was sacrilege. The people blamed his advisers for the mismanagement of the King's government. Following the abdication of King James II in 1688, Parliament called upon William of Orange to become King of England on condition that his ministers were chosen by Parliament. The main objective was to permit the people, through Parliament, to change their government by lawful means: by means other than rebellion and civil war.

¹⁹ Reminiscences in the life of Sir Francis Hinks, K.C.M.G., C.B. p186

²⁰S. Leacock, Baldwin LaFontaine Hinks: Responsible Government, p. 137

"In this LaFontaine-Baldwin ministry we find for the first time a cabinet deliberately constituted as the delegates of the representatives of the people, and taking office under a governor willing to accept their advice as his constitutional guide in the government of the country. "

Upon his retirement, LaFontaine said:

“For fifteen months things went fairly well. Then came the struggle between the ministry, of which I formed part, and Governor Metcalfe. The result of this struggle has been that you have in force in this country, the true principles of the English constitution. Power today is in the hands of the people…(ibid. p. 356)

²¹ S. Leacock, Baldwin LaFontaine Hinks: Responsible Government, p.286

²² S. Leacock, Baldwin LaFontaine Hinks: Responsible Government, p.285

²³ Reminiscences in the life of Sir Francis Hinks, K.C.M.G., C.B., p 119

"the ex-Ministers never either committed or dreamed of committing such a blunder [...as...] attempting to legislate for one section of the Province by the votes of the members from the other. "

Canada's Promise: Constitutional Liberty, Federal Democracy, Responsible Government:

A Truly Federal Model of the British Constitution (Part I)

A Truly Federal Model of the British Constitution (Part 2)

The Intent of Confederation