Battle Royal

by David Johnson

  We will devote much more attention to the powers of the governor general and the Queen respecting royal assent in following chapters. At this time, however, two points are pertinent. First, the principles and practice of responsible government stipulate that the governor general is ordinarily required to always offer royal assent to legislation passed in Parliament. Second, the references in sections 55 and 56 to the “Queen in Council” need to be understood in the context in which they were written. In 1867 these powers of “reservation and disallowance” were the privileges of the British government over Canada in that the “Council” advising the Queen would be the British cabinet. As we have already seen, the British government always had the power to veto colonial legislation. These provisions in the Constitution Act, 1867, merely continued this power and the colonial status it imposed upon Canada even after Confederation.

  The act further addresses the role of the monarchy in the provinces. Section 58 requires that in “each province there shall be an Officer, styled the Lieutenant Governor, appointed by the Governor General in Council.” Sections 59 and 60 stipulate that the lieutenant governor holds office at the pleasure of the governor general and that the salaries of all lieutenant governors will be fixed and provided by the Parliament of Canada.” The “Powers, Authorities, and Functions” of the lieutenant governor in each province are defined in section 65. As with the governor general, they are the same as all the powers, privileges, and responsibilities held by all previous governors general and lieutenant governors. Ensuring responsible government, section 66 specifies that lieutenant governors in each province will exercise their powers “acting by and with the Advice of the Executive Council thereof.” Finally, the Fathers of Confederation, in section 90, gave one last power to all lieutenant governors. Just as the governor general has the power to reserve bills, with the Queen having the power of disallowing those bills, the lieutenant governor in each province is given the power to reserve any and all pieces of provincial legislation for review by the governor general, with the governor general possessing the power to disallow these bills. In the same way as the federal Parliament and government officially stood subordinate to the British government in 1867, so too did provincial legislative assemblies and their governments stand as the inferiors to the federal government. We will devote attention to these matters in subsequent chapters.

  And so, Canada was born in 1867. In this new country, the British monarchy would continue its centuries-old reign. But in the century and a half to come, the monarchy would be called upon to change and adapt to the growing reality of Canada as a modern, independent, egalitarian, less deferential, more critical, multicultural state. The ever-changing Canada imposed great stresses and strains on the institution of the monarchy in this country. As the twentieth century unfolded, growing questions arose concerning the relevance of this seeming relic of a colonial past. Looking at their modern country as it evolved, Canadians began to ask probing questions. Why do we continue to have a monarchy? What role does it perform? Does it provide anything of value to the country? And, more basic still, just what do the Queen, the governor general, and the lieutenant governors do?

  Chapter 3

  “I Serve”: The Ceremonial Crown

  “And what have kings that privates have not too,

  Save ceremony, save general ceremony.”

  — William Shakespeare, Henry V, Act IV, scene I.

  “You are a member of the British Royal Family. We are never tired and we all love hospitals.”

  — Queen Mary to a much younger royal who complained, prior to a hospital visit during the First World War to meet with wounded British soldiers, “I’m tired and I hate hospitals.”

  “I’m the king, may I come in?”

  The scene is a Glasgow tenement in 1936, and the person who had just opened the door stood face-to-face with Edward VIII. Shocked beyond belief, the working class Glaswegian soon learned the king’s business on the doorstep. Edward VIII was concerned with unemployment and poverty. He was worried about how ordinary people were coping with the mire of the Great Depression. Seeking first-hand knowledge of the difficulties his people were suffering, he insisted on personally visiting the poor. Later, on a similar visit to the Welsh town of Dowlais and its shuttered steel mill, the king was cheered by hundreds of unemployed workers when he famously declared, “Something must be done.”[1]

  While good kings and queens in fairy tales always care for their subjects, most monarchs throughout history have shown a notorious lack of concern for the “lower orders.” The British Isles are not exempt from this arrogant stance. In fact, indifference to the commoners was one of the reasons for the outbreak of the English Civil War in 1642. By the reign of George III (1760–1820) though, this attitude was beginning to change. Just as the sovereign and his family were losing real political power, they began shifting their attention to philanthropy. Royalty had to have a purpose, and that purpose would be the support of good deeds and voluntary efforts serving the common interests of the nation. George III became an early advocate for smallpox inoculation, while his wife, Queen Charlotte, financed “distressed needlewomen.”

  During the mid-nineteenth century, royal patronage of charitable causes increased, with Victoria’s reign setting the stage for the modern, philanthropic monarchy. Prince Albert, Victoria’s husband, sensed that the continued viability of the monarchy was contingent upon linking itself to the best aspirations of civil society — hence the royal family’s growing interest in supporting the development of hospitals, the establishment of the Victorian Order of Nurses, and the setting up of homes for orphans, veterans, and unwed mothers. Albert himself offered, in private, a more political motivation for royal philanthropy. He saw it as the best means to combat the growing threat of republicanism and the “practical application of socialism.”[2] Through the First World War, hospital visitations became a staple “engagement” for all members of the royal family, with Queen Mary, wife of George V, seeing this role as a moral imperative. With the end of the war and the collapse of royal dynasties in much of Europe, the British royal family sought to establish its social connection to its people even more deeply. George V’s private secretary, Lord Stamfordham, advised the king to be “a living power for good, with receptive faculties welcoming information affecting the interests and social well-being of all classes, and ready not only to sympathize with those questions, but anxious to further their solution.”[3] Stamfordham wanted the king to escape the stereotype of mere figurehead by demonstrating his and his family’s interest in the welfare of all their subjects. This goal would be best achieved by ensuring the royals heard their subjects’ life stories and shared in their joys and sadnesses. The Crown needed to be — and be seen to be — one with the people, in service to the people. The title of this chapter is derived from the official motto of the office of the Prince of Wales — “Ich Dien” — German for “I Serve.” But just how does the monarchy serve the people? What does the Queen do? What is required of governors when they are called upon to represent the Queen in Canada? And if royal power is dramatically limited by the principles and practices of responsible government, is the figurehead status of the monarchy of any worth? Simply put, can the monarchy justify its continued existence?

  The Crown: First Perceptions

  To understand the Crown in Canada, it is necessary to comprehend that the “Crown” refers to a complex array of individuals, institutions, powers, conventions, and traditions linking Canada and the Canadian constitution to the political and constitutional evolution of the United Kingdom, and England before it. The Crown in Canada is both an institutional reality and a political concept whose pedigree dates back over a thousand years, making it the most ancient part of the Canadian constitution. So, what does the “Crown” mean?

  In British law professor Adam Tomkins’s sardonic words, the actual Crown is fundamentally “nothing more than a piece of somewhat garish jewelry that i
s kept securely locked up in the Tower of London.”[4] But as a piece of headwear, this Crown conveys enormous symbolism. The person upon whose head the Crown is placed is anointed as the sovereign of the realm, possessing full executive power to oversee the governance of his or her lands. As such, the Crown is much more a concept than a thing. It is a symbol of authority and power. And this marks the first of many symbolic relationships deriving from the Crown.

  The Crown, by definition, refers to the monarch and the institution of monarchy. By virtue of being crowned king or queen, the monarch becomes the head of state of the United Kingdom and the fifteen Commonwealth countries recognizing the monarchy as their own (whether all of their people like it or not). The monarch also becomes the supreme governor of the Church of England, as well as head of the Commonwealth of Nations. In Canada, the Queen holds the royal title of Queen of Canada separate and distinct from that of the United Kingdom. As head of state in Canada, the monarch possesses full executive authority in this country and is at once a constituent part of the Parliament of Canada, deeply interwoven into the constitutional principles of the country, and the symbolic figurehead of the Canadian state and its people. The Crown thus has a profoundly personal and individual component to it: the Crown places great symbolic authority and some significant constitutional power into the hands of a single individual. That individual is the reigning sovereign (the common term of reference for the monarch as an individual), and his or her claim to the throne is based upon the hereditary principle rooted, until 2013, to the practice of male primogeniture. This tradition stipulated that upon the death of a sovereign, the next in line to the throne would be the eldest male heir of the deceased sovereign, regardless of the existence of elder daughters of the sovereign. Only in the absence of a male heir could a female heir ascend the throne, as occurred with both Elizabeth I and II, as well as Victoria. The historical evolution of the hereditary principle has resulted in the House of Windsor now being the royal family for the United Kingdom and the Commonwealth. The focus on the individual status and role of the sovereign gives rise to the concept of the Crown-as-monarch, as distinct from the Crown-as-executive.

  The Crown-as-monarch in Canada relates directly to the ceremonial roles of the sovereign’s representatives in Canada. While the monarch is head of state, the sovereign neither resides in Canada nor exercises the routine roles and responsibilities of the monarchy in Canada. These duties fall to the governor general, serving Canada overall, and the lieutenant governors, appointed to each of their respective provinces. These vice-regal representatives have been delegated the vast majority of the sovereign’s powers and responsibilities.

  While most Canadians are familiar with the role of the Crown-as-monarch, the idea of the Crown encompasses much more than this one aspect. The Crown also refers to the state itself and executive power in the state, leading to the concept of the Crown-as-executive. The monarch is head of state and yet, as Louis Adolphe Theirs long ago said, “the king reigns but does not rule.”[5] Through the workings of responsible government, effective political power in any country based on the British parliamentary system of government lies in the hands of the prime minister, who is the head of government. A Canadian prime minister or provincial premier presides over the government, but it is technically the Queen’s government, with first ministers and their cabinet colleagues appointed in her name by the governor general or lieutenant governor. Once appointed, these officials and their ministries govern the country or its provinces, wielding power in the name of the Crown, while being accountable to the democratically elected Parliament or provincial legislatures. Hence we speak of “ministers of the Crown,” with the federal cabinet being a select grouping of “the Queen’s Privy Council for Canada” — namely, those privy councillors currently commanding the confidence of the House of Commons.

  The concept of Crown-as-executive, then, refers to the lawful, constitutional authority to exercise governmental power in and over the state. Its attention is focused on those who truly exercise political power. First ministers and their cabinets are part of the Crown, as are federal and provincial public services and all public servants hired to fulfill duties in the service of the Crown. Government departments and agencies exercise Crown powers in their respective fields of jurisdiction, meaning that all government policies and programs represent the will of the Crown as reflected through the working of responsible government. The Crown governs the state, and its powers form the state. The Crown also has the authority to enter into commercial business enterprise, subject to the approval of federal or provincial law — hence, “Crown corporations.” The Crown has “legal personality,” entitling it to enter into contracts, own and manage property, and have legal rights to precedence in bankruptcy proceedings. All land not unambiguously and privately owned by individuals, corporations, or specific governments, or not recognized as belonging to indigenous First Nations on account of existing treaty rights or claims, is “Crown land.” And anyone granted permission by Crown agencies to profit from the use of Crown land must pay “royalties” to the state.

  Beyond the traditional executive realm, the Crown relates to law and security. It establishes courts and appoints judges. It nominates “law officers of the Crown” to promote the rule of law. The Royal Canadian Mounted Police is just one example of the policing arm of the state, while federal and provincial Crown attorneys advocate the enforcement of the “Queen’s law” before the Crown courts. Then there is the military. While the Queen holds the command-in-chief of all Canadian military forces, with the sovereign or members of the royal family being honorary lieutenant colonels of numerous Canadian Army regiments, since 1905 the governor general has been accorded the title “Commander-in-Chief of the Canadian Armed Forces.” In keeping with British tradition, the Canadian Army has never been accorded the title “royal,” but the other services are officially known as the Royal Canadian Navy and the Royal Canadian Air Force.

  In any country with a constitution based upon the British parliamentary tradition, governmental authority comes from two sources: statutory law and Crown prerogative. Most powers held by governments are derived from statutory law; in Canada, these are laws passed by the federal Parliament or provincial legislatures. Statutory laws clearly assign specific powers and duties to ministers and their departments to achieve desired public policy results. Although the authority to assign such powers to Crown ministers and their agents officially rests with the legislative branch, a majority government, by definition, has effective command of a majority of the members of the legislature. This reality gives the ministers of the Crown, and especially the first minister, the real power to have government proposals turned into law, with the usual result being that parliamentary bodies grant ever more powers and responsibilities to the executive branch of government — that is, the Crown.

  Crown prerogative is quite different. This term refers to all the traditional powers, rights, and privileges historically held by English and British monarchs that have not been superseded by statutory law. Most of the Crown’s historic prerogatives in Canada have been subsumed under laws passed by the federal Parliament or provincial legislatures, but some prerogative powers remain, to be exercised either on the advice of responsible first ministers and their cabinets or, in rare exceptions, by the vice-regents or even the Queen acting according to constitutional conventions and their own conscience. The most important of these “reserve powers,” exercisable at the discretion of the vice-regal representatives, are the powers to appoint the prime minister or premier, to grant royal assent to legislation, to prorogue parliamentary assemblies, to dissolve such assemblies and call new elections, and to dismiss a first minister and his or her government. Real Crown power continues to reside in these seemingly basic or arcane concepts. The use of these reserve powers now usually goes unnoticed in the routine life of Canadian parliamentary democracy. But, during a time of constitutional crisis, when it is unsure whether a first minist
er truly commands the confidence of his or her parliamentary assembly, the exercise of some of these reserve powers can become a matter of huge controversy. The last time we witnessed such a scene in Canada was in 2008 during the prorogation crisis in Ottawa. Much more attention will be devoted to those events and Governor General Michaëlle Jean’s questionable actions in chapter 5.

  In sum, the Crown means many things. It is profoundly personal, referring to a queen or a king, the royal family, governors general, and lieutenant governors. It is also essentially constitutional and governmental. The Crown is all around us, as tangible as land and government offices, police officers, and men and women of the Canadian military. It is also a felt presence in laws, courts, and public policies, and in public services delivered by federal and provincial governments. It is as intangible as the constitutional conventions of responsible government, the legacies of British parliamentary democracy, and the feelings of loyalty to a monarchical tradition dating back a millennium.

  The Ceremonial Monarchy

  Since the reserve powers are rarely exercised and become controversial only during extraordinary times of constitutional crisis, at ordinary times, the representatives of the Crown-as-monarch undertake ordinary roles, with these functions being basically ceremonial. A monarchy largely rooted to ceremonial duties, however, is a monarchy increasingly susceptible to the argument that “mere” ceremony is an insufficient reason for its continued existence. It is here, in the realm of royal visits and royal assent, the official state opening of Parliament, and the inauguration of public libraries and hospitals by governors general and lieutenant governors, where we begin to confront one of the great battle lines in the debate over the future of the monarchy in this country. To republican critics, these ceremonies are either archaic vestiges of a colonial past or banal social courtesies that can be performed by any elected politician or middling public servant.