I wish I was a lawyer…

“Prime Minister Stephen Harper is referring his one-time dream of a term-limited and voter-approved — if not elected — Senate to the Supreme Court of Canada for a legal opinion.

Faced with loud provincial objections to his plan to change the Senate via a simple federal law without a constitutional change approved by the provinces — as well as the ire of some of his own appointed senators — Harper is throwing his contentious plan into the lap of the country’s top judges.

It’s a move long urged on his government by the Liberals and by the Canadian Bar Association. It comes on the heels of the Quebec government’s own reference to that province’s high court. And it pushes the whole question to near the end of Harper’s term in government, if not past the scheduled next election in 2015”

  • Stephen Harper wants Supreme Court’s opinion on Senate reform, By Tonda MacCharles, Toronto Star, Published on Fri Feb 01 2013

During the recent Winnipeg Liberal Leadership Debate, Martha Hall Findlay talked about the “courage to be Liberal”. It is a lovely idea which I will integrate into my own Liberal understanding; because being courageous speaks both to our history and to our future. Pierre Trudeau required a large amount of courage to repatriate the constitution, while Pearson was brave when he worked with Parliament to bring forth the idea of a new flag or “the concept of bilingualism and biculturalism”. None of these things were easy, but they were necessary. Those actions helped to build our modern national fabric.

Today, Liberals have to be courageous in dealing with two bills that are before the House of Commons: C-7 (Senate Reform Act) and C-53 (Succession to the Throne Act, 2013). I say that we have to be courageous not because I oppose those Bills, but because the Government is not following the “rule of law”. Or put differently, as the Harper Government is trying to change the Constitution without going through the proper procedures. While we – the Liberal Party – have largely stood silent.

But, let us start from the beginning. I am not against Senate Reform, nor do I wish to stand in the way of the Succession to the Throne Act. In fact, the changes suggested by the Succession to the Throne Act are long overdue. The problem is simple: the Constitution requires that when changes are made to “the office of the Queen”, an amendment the Constitution of Canada is required. For that amendment to be valid, it must be “issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assemblies of each province.”

In spite of those words, the Harper Government has argued that it can indeed change the line of Succession without moving through the constitutionally prescribed amendment process. In fact, what is more maddening is that they have argued that they do not need to formally seek provincial consent. In fact, they have just introduced statute legislation (C-53) – not the required constitutional amendment – to change the line of succession.

“No constitutional amendment is required for Canada to give its assent to this U.K. legislation. The legislation introduced today is in keeping with the Preamble to the Statute of Westminster, 1931, which provides that any changes to the laws governing succession require the assent of Dominion Parliaments. The Government of Canada is working in collaboration with all parties to ensure swift passage of the bill.” (Harper Government Introduces Legislation to Give Canadian Assent to Changes to the Laws Governing the Royal Line of Succession, http://pch.gc.ca, Ottawa, January 31, 2013)

I wish I was a lawyer because someone would believe me if I said this was a misguided adventure. I wish I was a lawyer because I could file the necessary documentation without incurring a large degree of costs. However, since I am not a lawyer, I will argue my point here: in this court of public opinion.

So for this paper to be of significance, one should start with defining the powers of the Office of the Queen. That is a hard job. For the powers of the Office of the Queen are largely not included in the Constitution of Canada. For example, while it is spelled out that the Queen is the “Command-in-Chief of the Land and Naval Militia, and of all Naval and Military Forces, of and in Canada (section 15 of the Constitution Act, 1867), that she can choose the Governor General (section 14 of the Constitution Act, 1867) and that she can determine the placement of the capital city (section 16 of the Constitution Act, 1867), most of her responsibilities are not formally explained.

Just look at sections 18 and 65 of the Constitution Act, 1867. Both sections mention or allude to “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”. Given that the Fathers of Confederation were all very familiar with English Constitutional History, they all could use “Constitutional Shorthand”. So instead of explaining the Powers of the Queen, they just agreed to grant the Crown the same powers that they had in England. No one in 1867 would have thought that their modern descendants would not be taught English Constitutional History.

Our forefathers would have understood that the the Bill of Rights (1689) and the Act of Settlement (1701) were constitutional acts. They did not have to write it into our founding documents. They understood “the Act of Settlement not only addressed the dynastic and religious aspects of succession, it also further restricted the powers and prerogatives of the Crown.” Or, at least that is what her Majesty’s website says. (http://goo.gl/FGocw) In fact, in a different section of that same website, the Bill of Rights and the Act of Settlement is described as: “The basis for the succession was determined in the constitutional developments of the seventeenth century, which culminated in the Bill of Rights (1689) and the Act of Settlement (1701). (http://goo.gl/2JgLp) Therefore, if her Majesty feels that this is an area of Constitutional Law in Britain, the same must be said of the rights and responsibilities once she is in Canada. This is especially true since the relevant portions of the Act of Settlement have not been changed since 1867. Therefore, since the Constitution Act, 1867 defines the Queen as the British would have, it is clear that changing the line of succession is a Constitutional Action.

So, we have our starting point. Consequently, let us describe the powers of the Office of the Queen. At this point, we have to refer to the Constitution Act, 1982, since that act contains the amending formula. As noted above, the procedure is clear:

“41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assemblies of each province:
(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;”

Accordingly, if a prima facie case for a constitutional breach has been made, one must ask why our Party is not raising the same issues. Given that a Bill has not been passed by Parliament, it might be difficult to proceed through the Courts. For, the Courts might decide that until a Bill becomes Law, it cannot step on the Right of Parliament to debate any issue to conclusion. With that being said, we have not tried.

However, if Court action is not immediately available to us, the Liberal Party of Canada has other options. For example, our Party could use this issue to create a national dialogue. In the 1980’s and 90’s, the Reform Party did a similar thing. They used speeches in church basements and community centres to galvanize communities throughout the West. In the 1970’s, in response to the FLQ crisis, citizen’s formed “public commissions”. Funded by the public and sponsored by reputable third parties, those commissions were able to use moral suasion to get to the bottom of issues. Finally, Liberals could take a more modern example provided to us by the launch of our Red Book in 1993 or Mike Harris’ “Common Sense Revolution”. Our Party could create and launch a White Paper on the issue of the how best to remedy the succession issue. Yet, for over a year, we have just stood by. Liberals can and should act on this issue.

There are a number of reasons why we should act. Firstly, by acting, we can affirm our values. That is to say that should the Harper Conservatives push this change through Parliament, they would be effectively thumbing their noses at the concept of the rule of law. For our system of government requires three things: acceptance, enforcement and equal application of the laws of the land. None of these are evident in the actions of the Harper Conservatives. This, thereby, raises an issue for all the provisions of the Constitution. If Parliament will trample over the rights of the Office of the Queen, will they trample over my Right to Free Speech or Freedom of Assembly or Freedom of Religion? If Parliament will not uphold the rule of law for one person, violating the Constitution might become a regular occurrence. In this case, Liberals must stand against the blatant violation of our founding law, our Constitution.

Secondly, the Liberal Party can show our managerial competence. Or in other words, one would have thought that the Prime Minister would have at least hired a competent constitutional lawyer. If I – a lowly possessor of a Bachelor of Arts in Political Science – could see this error, shouldn’t a practicing lawyer see the same problem?

Lastly, we can show our courage to act. While we are all in agreement that the line of succession must change, we should be honest with Canadians. We need to explain that it is a constitutional and not a legislative change. We should be courageous in explaining to Canadians that this issue is more difficult than it should be; but we need to take it on because it is the right thing to do. It is true that the Tories could throw the gender card our way. Just as the Conservative Party tarred Michael Grant Ignatieff’s travels, professional career and actions as being “uncanadian”, they could try to do the same to our Party.
They could suggest that we are against their proposal because we are not in touch with woman or other some such non-sense. With that being said, Liberals need to be courageous and brave. Liberals need to be willing to explain to Canadians that a line of succession change has to be done correctly or we might find ourselves with an unwanted monarch.

In my opinion, this is the road that we should take. If I was a lawyer, I would have taken it years ago. As one will see on my blog, for quite some time, I have been railing about Mr. Harper’s cowardly attempts to change the Senate and the Monarchy. He should have called each Premier and pitch them on his vision. He should pitch Bill C-7 (Senate Reform Act) and Bill C-53 (Succession to the Throne Act, 2013). But he likely will not. In both cases, Constitutional Action will be needed. Let us hope that our Party will act before all of this ends up in the Courts.

A PDF version of this essay can be found at: http://www.scribd.com/doc/124376611

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3 thoughts on “I wish I was a lawyer…

  1. “No one in 1867 would have thought that their modern descendants would not be taught English Constitutional History.” Bingo… nice line Russell. You’re bang on with all of this… I actually suspect it could even be cited as precedent opening the door to a republic without provincial consent… the reality is our constitution is mostly informal, as it should be. I’m not sure ‘unconstitutional’ is the way to describe the problem… the question you’re anwering is whether taking our train of constitutional precedent in this direction – unilateral federal ammendment – is really the direction we want to go.

    Since the provinces aren’t objecting, it’s obvious they all support the ammendment. So why not put them on the spot! Let’s actually pass a constutional ammendment the way it’s supposed to happen, by actually having *agreement* about something, if just this once… it’s as if we want to PROVE agreement on an amendement is impossible.

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    1. We need to have procedural consistency to have a constitutional convention or strategy. Otherwise, my friend, all we will have is “might makes right”. Surely, you believe that the “rule of law” is important? You need procedural consistency to have it.

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