The significance of the Crown in the working of Canadian government has been neglected by commentators. A recent new book tries to set the record straight. Monarchy Canada analyst Richard Toporoski discusses its degree of success.
The Invisible Crown Revealed
The Invisible Crown, David E. Smith, Univ. of Toronto Press, 1995, xii + 274 pp., paperbound $19.95, hardbound $55.00.
David Smith subtitles The Invisible Crown, his monograph on the Crown in Canada, "the First Principle of Canadian Government", and argues for the fundamental importance of the institution of the Crown in the governmental organisation of this country. His book, however, and a potential reader should be well aware of this before he starts, is not a study of the ceremonial role of the Queen or of the Governor-General or any of the splendour or pageantry that is the concomitant of that role, the "dignified" part of the constitution, to use Walter Bagehot's description. It is rather a study in political science of how the concept of the Crown is, to use the hackneyed cliche, woven into the warp and woof of the governmental functioning of Canada and its provinces. There is also much material drawn from Australia and Britain by way of comparison and especially contrast to show that much of the Canadian experience of the Crown is not only inherited but truly unique to us. For example, for those who may be unfamiliar with the comparative situations, Dr Smith provides much information about the status of the governors of the States of Australia as direct representatives of the Sovereign, appointed by her personally, and that of the lieutenant-governors of the Canadian provinces, whose very existence used to nonplus the British government. There is indeed a remarkable amount of primary material in the book hitherto either not available at all or available only with difficulty to the general or even informed reader. Much of the general public and certainly most media commentators, when they think of "the Crown", consider only at best the persona of the Queen or at worst the various vicissitudes of the Royal Family, a "shortfall of understanding", as Dr Smith calls it (p. 6). Dr Smith's thesis, however, is not only that the principle of the Crown allows the executive government, that is, ministers, to do their job quickly and efficiently (Bagehot's other category, which is what makes this book a study in political science and not in history or ceremonial), but it also "helps to explain the disposition toward activism and innovation that is a characteristic of governments in the Canadian political system". One might observe that this ability lent by the Crown to governments to act and innovate and to do it efficiently can sometimes expose the concept or the prerogative of the Crown or the Crown itself to the accusation of providing protection to the executive, by virtue of their being the confidential advisers of the Crown, from the democratic scrutiny of legislature and public. The Charter of Rights and Freedoms by attributing, for the first time, powers to individuals as citizens rather than to the Crown-in-Parliament will challenge this paramountcy of government. As I think has already been seen in some decisions of the Supreme Court of Canada, this may not always be for the common good; it certainly will not tend to reflect the traditional Judaeo-Christian morality of this country.
The Divisible Crown
Monarchy historically concentrates authority and power on one person. Even when monarchy has been transformed, in the British system, our system (Dr Smith observes that when the British North America Act was "unhappily" renamed in 1982, "constitutional lucidity suffered as a result (p. 15)"), by responsible parliamentary government, that symbolic concentration remains. Hence, as Dr Smith says, relying on W.L. Morton, "the attraction of monarchy for the Fathers of Confederation lay in the powerful counterweight it posed to the potential for federalism to fracture (p.8)". The gradual achievement by provincial executives, starting in 1892 and continuing on from there on the basis of decisions in the Judicial Committee of the Privy Council, of a position and powers parallel in their own sphere to those of the Dominion executive is the result of the recognition or interpretation of those executives as being the responsible advisers of the Crown. The gradual discovery of a presence of the Crown in the provinces or of a provincial guise of the Crown "empowered rather than restrained their governments (p.3)". Dr Smith argues, by the way, that the weakening of Canadian central authority by decisions of the Judicial Committee, the usual view, could as easily be interpreted as the result of the resistance of other features of the Canadian polity to centralisation. Unlike the Canadian nation as a whole, the provinces are individually homogeneous enough to have homogeneous electorates, thus allowing majority rule without compromise. Hence the attribution of a provincial identity to the Crown strengthened provincial executives. Although the Australian States started out with this recognition of the Crown as part of their constitutions, the powerful upper houses in most Australian state parliaments, a feature which either did not exist or else declined very rapidly in Canada, prevented those executives from achieving the position of their Canadian counterparts. Dr Smith offers the novel observation that it is their federal systems, which place the operation of the Crown at even one more remove from the person of the Sovereign, which have made Canadians and Australians much more accepting of the role of the representative of the Crown in determining a government in the case of a minority situation in the legislature. Britons, apparently, are frightened of the possibility of a "hung" Parliament, as they call it, because it may involve the Queen herself too personally in the political fight. On the other hand, Dr Smith points out, without proposing what loyal Canadians ought to do about it, that this representation of the Sovereign by two levels of governors has created a situation in which "Canadians have witnessed the separation of the person of the monarch from the concept of the Crown. In addition to the absence of the monarch and her court, this is the result of a deliberate policy over the last half-century to Canadianize the office of governor general and, to some extent, replace royal emblems with Canadian insignia (p. 25)". But although Quebeckers may no longer be, to quote Sir George-Etienne Cartier, "monarchical by religion, by habit and by the remembrance of past history" and although Canadians no longer aver with Vincent Massey that the Crown is "a spiritual entity (p. 25)", nevertheless "the Crown is an integral part of a practical form of government, and as such it has a direct and substantive part to play in the lives of all Canadians (p. 26)". The separation of the person of the Monarch from the concept of the Crown is, however, of supreme importance to Canadians as loyal subjects of the Queen both because it will tend to diminish the dignity of the Queen's person in Canada, something which no loyal subject can countenance, and because it will also ultimately diminish that practical role the Crown plays in Canadian government. Dr Smith's chapter, "Canadianizing the Crown", gives us pages of inside information on how various Canadian governments have pursued this policy, never with the intention of enhancing the role of the Queen herself but, at best, enhancing that of the Governor-General in her place. Dr Smith describes the differences in opinion which took place earlier this century about the "divisibility" of the Crown. The concept is, of course, the result of the independence of the various realms of the Commonwealth, "united", as the Balfour Report of the Imperial Conference of 1926 declared, "by a common allegiance to the Crown". This assumption of a continuing unity of the Crown or the person of the Sovereign was reiterated by Arthur Berriedale Keith, who described the situation created by the Statute of Westminster in 1931 as one in which "the Dominions are sovereign international States in the sense that the King in respect of each of his Dominions ... is such a State in the eyes of international law". (Speeches and Documents on the British Dominions, 1932, p. xxxvii) As late as 1939, the Dominions office resolutely affirmed this position, as Dr Smith quotes for us (p. 195): "It is by virtue of his succession as ‘King of Great Britain, Ireland and the British Dominions beyond the Seas ...' that he is King in all parts of his dominions. In this sense he is King in Canada in precisely the same manner in which he is King in the United Kingdom ... It is one kingship, but the King is in a position to act independently in respect of each or any part of his dominions". It is my view, though one that would not be subscribed to by many authorities today, that this is still fact. I am perfectly prepared to concede, even happily affirm, that the British Crown no longer exists in Canada, but that is because legal reality indicates to me that in one sense, the British Crown no longer exists in Britain: the Crown transcends Britain just as much as it does Canada. One can therefore speak of "the British Crown" or "the Canadian Crown" or indeed the "Barbadian" or "Tuvaluan" Crown, but what one will mean by the term is the Crown acting or expressing itself within the context of that particular jurisdiction. Dr Smith suggests that this concept of "divisibility", however long it took for it to be articulated or accepted, explains how Canadians and Australians were able to make federal systems work. But there is a danger that this concept of the "divisibility" of the Crown, which, given the manner in which the legislative independence of the Queen's realms in the Commonwealth has developed, I must admit is a fact, can lead to the idea that the Crown is at present "divided". This is not true, but it would immediately become true if, let us say, an alteration were to be made in the United Kingdom to the Act of Settlement 1701, providing for the succession of the Crown. It is my opinion that the domestic constitutional law of Australia or Papua New Guinea, for example, would provide for the succession in those countries of the same person who became Sovereign of the United Kingdom. But this would not be true in Canada. There is no existing provision in our law, other than the Act of Settlement 1701, that provides that the King or Queen of Canada shall be the same person as the King or Queen of the United Kingdom. If the British law were to be changed and we did not change our law (and by section 41 of the Constitution Act 1982 such a change would require resolutions of the House of Commons and the legislative assemblies of all the provinces to authorise a proclamation by the Governor-General to determine who the Sovereign of Canada should be so the Governor-General would be given the authority to create his own King!), the Crown would be divided. The person provided for in the new law would become king or queen in at least some realms of the Commonwealth; Canada would continue on with the person who would have become monarch under the previous law, a situation which certainly would not be allowed to continue either by political reality or by public opinion.
There are two points to all this discussion. As we have observed, the federal systems of Canada and Australia had long provided concrete examples of a "divided" Crown, that is, the Crown operating at different levels of jurisdiction within one federal polity, and had accustomed people, whatever the theory was, to think of divisibility in practical terms. This theoretical divisibility was not recognised at first in the Canadian system. In fact, in spite of Dr Smith's arguments I still do not really recognise it. I have always maintained that the presence of the Crown at the provincial level is really a legal or constitutional fiction, necessitated by the attribution to the provinces of legislative authority. If the capacity to legislate, not just pass ordinances like a city council, is attributed to the provinces, then the capacity to administer that legislation, that is, an executive capacity, must also be attributed to them, and that capacity in our system is an attribute of the Crown. Hence, although the absence of the Crown from the provinces is still evidenced by the fact that the Queen does not form part of a provincial legislature (even though the enacting formulas of most Canadian provincial legislatures have pushed in the opposite direction), the famous 1892 Liquidators of the Maritime Bank case in New Brunswick determined that the lieutenant-governor of a province was just as much the representative of the Crown in his province as the Governor-General of Canada was in the Dominion as a whole, precisely because the lieutenant-governor exercised functions proper to the Crown within his province. Although no direct connection between the Crown and the lieutenant-governors was ever created (and it is clear from Sir John Macdonald's view of the provinces as glorified municipalities that the British North America Act was purposely so designed lieutenant-governors are appointed by the Governor-General, not by the Queen), the interpretation that the Crown does exercise functions at the provincial level has grown to be the accepted understanding. The Queen's presence, on the other hand, was explicitly maintained at federation in the Australian state parliaments (which, ironically, have now all removed her from their enacting formulas) and thus made that divisibility psychologically concrete. More important for our consideration, however, than this psychological acceptance of a vertical division of the functions of the Crown is the fact that while the Crown itself (that is, according to the definition given in the Canadian Interpretation Act, the Sovereign herself) is not at present divided, its divisibility does necessarily imply the potential for it to be divided and has therefore given the opportunity to successive Canadian governments to distance its functioning in Canada, in the person of the Governor-General, from its origin in the Queen herself. We have all seen how the Governor-General, who is supposed to be the representative of the Queen, has progressively not only taken over her functions, ceasing more and more to reflect his august Principal, but has replaced her symbolic presence as well. I still remember how Vincent Massey always spoke about the Queen and the Crown which he represented. But Dr Smith points out that since the 1960s governor-generals' speeches talk about the continuity of national institutions, the shaping of national character, the governor-general as the source of a sense of national community (!), national unity, tolerance, concern for the environment, and so forth and so forth. He then cites the 1939 warning of Sir Shuldham Redfern, secretary to the Governor-General, that without the common allegiance owed to the Crown, the various regions of Canada might simply break up. Well, in the light of Quebec secessionism, Atlantic depression, and Western alienation, it doesn't take much reflection to perceive what help these nationalistic governor-generalities which ignore the Queen have been.