What authority does the federal government have the power to protect public order? This is a question worth asking considering the Federal Court’s judgement on the use of the Emergencies Act to deal with the 2022 Convoy protest.

As Justice Mosley’s ruling in the Federal Court case highlights, the invocation of the Emergencies Act should be a measure of last resort. Other laws, be they federal or provincial, should be exhausted before the Emergencies Act is used. In the case of the Convoy, Mosley found that provincial laws could have dealt with the protest in Ottawa, which means that the Emergencies Act shouldn’t have been invoked. The fact that the Ontario government chose not to act didn’t justify the federal government’s recourse to the Emergencies Act.

After reading the judgement, it appears that the federal government isn’t well placed to deal with breakdowns of public order if provinces refuse to act. In fact, it seems like the federal government must wait for the provinces to do something if they have the legal authority to deal with a significant public order problem. Unless there is a violation of a federal law, such as the Criminal Code, Ottawa seems hamstrung.

That seems odd, doesn’t it? Unfortunately, the Emergencies Act has probably supplanted another legal authority that the federal government could have used to deal with breakdowns of public order: the Crown prerogative.

In the 1989 case, R v Secretary of State for the Home Department, ex parte Northumbria Police Authority, the Court of Appeal of England and Wales considered whether the British Home Secretary had the authority to supply crowd control equipment, including riot control gas, to police. The Northumbria Police challenged the Home Secretary’s authority to do so without their consent, arguing that this was beyond the Home Secretary’s powers over the police and the provisions of the Police Act 1964 and Local Government Act 1985. The court sided with the Home Secretary. While statute did not empower the Home Secretary to act, the Crown prerogative did.

As powers that the Crown has in its own right as recognized by common law, the prerogative provides the executive with various authorities, including the power to wage war and defend the realm, command and deployment of armed forces, negotiate and ratify treaties, and administer justice. Lord Justice Croom-Johnson held that “I have no doubt that the Crown does have a prerogative power to keep the peace, which is bound up with its undoubted right to see that crime is prevented and justice administered.” Lord Justice Nourse agreed. He noted that when looking at the war prerogative, “it is natural to suppose that it was founded, at least in part, on the wider prerogative of protection…the wider prerogative must have extended to unlawful acts within the realm as to the menaces of a foreign power.” Hence, “There is no historical or other basis for denying to the war prerogative a sister prerogative of keeping the peace within the realm.”

Given that the Canadian Crown inherited the war prerogative from the British Crown, there’s a strong case that Canada also inherited prerogative to keep the peace. Similarly, if the prerogative to keep the peace flows from the power to administer justice, then the Canadian Crown would have this power as well. The question is whether this prerogative belongs to the federal Crown or the provincial Crowns.

Since the prerogative in Canada is divided according to the legislative competencies outlined in sections 91 and 92, we need to find the hook for it there. If the hook is in section 91, then it belongs to the federal Crown, and if it’s in section 92, then the provincial Crown.  One could argue that, if the prerogative to keep the peace flows from the administration of justice, then it belongs with the provincial Crowns. If, however, the prerogative to keep the peace is connected with the war prerogative, then it belongs with the federal Crown. The fact that section 91 allows the federal Parliament to legislate for “Peace, Order, and Good Government” reinforces this interpretation, as does the fact that federal Parliament legislated for public order emergencies in the Emergencies Act.

The federal government, therefore, arguably had a power to keep the peace and protect public order under the Crown prerogative. This would have been a narrow authority, but one that would arguably have enabled the federal government to restore public order if a province was unwilling or unable. Using Lord Justice Nourse’s logic, denying this power to the federal government would have been akin to deny it the authority to deal with foreign threats to Canada.

The Emergencies Act, however, has probably put this prerogative in abeyance. The Act binds the Crown, provides for public order emergencies, and sets out strict criteria for how it can be exercised. This suggests that Parliament’s intent was that the Emergencies Act would be the federal government’s authority to deal with breakdowns of public order.

On the other hand, it’s notable that the Emergencies Act empowers the federal government to deal with war emergencies, yet there is no suggestion that it has displaced the war prerogative. The federal government can engage in armed conflict without invoking a war emergency under the Emergencies Act, which implies that the prerogative can still be used when the Act’s threshold hasn’t been met or its exceptional powers aren’t necessary. If that’s the case, then maybe the prerogative to keep the peace is still operative and could be used to deal with breakdowns of public order that don’t meet the criteria set out in the Emergencies Act.  

Would a federal government ever dare to rely on the Crown prerogative to address a public order crisis? Probably not. As Alberta’s intervention in the Federal Court case suggests, the provinces would strongly oppose a federal intervention into a public order problem that doesn’t amount to a national emergency. Unless there are violations of federal law, the provinces would argue that public order falls under their jurisdiction. If the federal government did act under the Crown prerogative, furthermore, it would quickly find itself before the courts, with critics arguing that there never was a prerogative to keep the peace in Canada, and if this prerogative did exist once, the Emergencies Act has supplanted it.

Suffice to say, this leaves us in a tough spot. The provinces are expected act when a public order crisis doesn’t meet the thresholds set out in the Emergencies Act. Yet, as the 2022 Convoy shows, the provinces can refuse to act. This doesn’t seem to be an acceptable situation and it suggests that the federal government is prevented from fulfilling a basic state function.

So, what’s the solution? We could do nothing and hope that provinces have learned that they must act. Alternatively, the federal Parliament could pass a public order act to address situations that don’t meet the requirements of the Emergencies Act. Interestingly, the United Kingdom passed a Public Order Act last year that we could mimic. Politically, though, a federal public order act would be controversial. There would be opposition from across the political spectrum and the federation. The federal government would need to be quite bold to table this kind of legislation. How likely is that?

I can’t help but conclude with a few thoughts about what all this tells us about the Crown prerogative. Flexibility and discretion are the key advantages of the prerogative. This power gives the executive the nimbleness to act in novel situation. The prerogative can also fill the gaps left by statute, allowing the executive to act in contexts that Parliament didn’t anticipate. These are the primary reasons why governments are loathe to abandon the prerogative as a source of authority.

The Emergencies Act, furthermore, highlights the risks associated with displacing the prerogative.  The high thresholds provided in the Act were meant to ensure that it would be a last resort. This made sense when the Act was passed, since provincial laws could handle local disturbances. In a pinch, the provinces could also rely on the aid of civil power provisions of the National Defence Act, which allows them to call out the Canadian Armed Forces to deal with riot or disturbance that they can’t handle. So, the Emergencies Act could have high thresholds because there were other tools the provinces could use.

What Parliament couldn’t anticipate was a provincial refusal to act. That’s the kind of unknown that the prerogative is good at addressing, but detailed statutes aren’t. This should give us pause the next time we legislate over the prerogative.

Is Canada planning to cut defence spending? On the one hand, the Department of National Defence and Canadian Armed Forces (DND/CAF) must find about $900 million in cost savings over the four years. That certainly sounds like a cut. On the other hand, the defence minister insists that the defence budget is not being cut, since overall defence spending will continue to increase. Cut may not be the right word, but the previously planned increase of the defence budget is clearly being reduced.

Let’s use an analogy. If I’m driving a car and speeding up to 100km/hr, am going slower if I reduce the how quickly I’m getting to 100km/hr? I’m still going to reach 100, but I won’t get there as fast. I’m not stopping or reversing, but my speed is reduced and I’m going slower than I was on my way to 100.

Let’s consider another one. If I negotiate a 3% per year salary increase with my boss, is my pay being cut if that increase is suddenly reduced to 2% per year? My overall salary is still going up, but it still stings and feels like a loss. This is particularly true if I had made plans and commitments based on that 3% per year increase.

So, yes, the Canadian defence budget is still increasing. The rate of that increase, however, will be reduced by the $900 million over four years. The curve is still climbing, but the angle is lower. And it will still feel like a cut, since a good chunk of the defence budget over the coming years has already been allocated and committed, especially on the capital side. DND/CAF will have $900 million less after these reductions than before and that money will have to come out of somewhere.

The defence budget will continue to increase. The spending reductions are going to sting, nonetheless.

Back in 2013, Lawrence Martin accused Canadian political scientists of fiddling while Stephen Harper burned down our democracy. He lamented that we were busy writing about narrow academic subjects instead of warning about the impending doom that threatened our institutions under the Conservatives.

I thought that was a ridiculous argument for two reasons. First, academic research is rightly concerned with specific questions that build on past scholarly contributions. That’s the nature of the enterprise, not fighting partisan battles of the day. Second, when academics do venture into public commentary and analysis, we should (ideally) apply our research to current events, not advance a partisan or ideological position.

I found his column so annoying that I wrote this reply in the Ottawa Citizen.  

Ten years on, the critique is coming from the other side of the aisle. The past couple of weeks have seen renewed debate about who gets to govern after an election. As per usual, my take on these questions is academic. I’ve offered my analysis of how the constitution operates. I’ve offered my assessment of how constitutional conventions differ from other types of unwritten rules, such as customs and practices. Most importantly, I’ve tried to stick to my lane, explaining the how the constitutional side of this equation might interact with the political one.

Right-leaning commentators have responded that academics are a bunch of pendants and left-wing shills who are trying to prevent the Conservatives from forming government.

Are the comments me and other profs make about constitutional rules pedantic? Well, yeah. That’s our job. I wear the pedantic label proudly.

Are we left-wing shills plotting to keep the Conservatives out of power? I can’t speak for my colleagues, but I find that charge both amusing and disconcerting.

It’s amusing because, in the Harper years, I was accused of being a Conservative hack for defending the government on various issues. The truth is that I tend to be sympathetic to the executive and constitutional formalism, in general, regardless of party.

But what makes this line of critique disconcerting is that it’s making it harder to have good faith discussions with partisans. I don’t claim to be a political strategist or partisan advisor. I don’t bring any political experience to these discussions, nor do I claim to. I gladly defer to those with that expertise and knowledge when it comes the political side of these types of questions. All I bring is my academic ‘fiddling’ these debates. And I fully understand why an academic perspective might be dismissed as irrelevant or out of touch, as a result. Is it really necessary, though, to cast academic analyses as ideological disagreements, or to think there’s a scholarly plot afoot, if our views don’t align with partisan objectives? Is it not possible to simply conclude that we’re looking at things differently based on different perspectives?

Maybe that’s too much to ask. Still, it’s pretty sad if it is.

We’re having the debate about who gets to govern after election again. Yes, again.

Let’s break it down one more time.

1) A serving first minister isn’t asked to ‘form government’ after an election, regardless of the result. They are still the head of government. The election has no effect on this legal situation.

2) Why’s this the case? Because the first minister is appointed by the Crown. Legally speaking, the appointment of a first minister has nothing to do with the legislature or an election.

3) Regardless of how many seats a first minister’s party wins during an election, they are still legally in office and can therefore choose to meet the legislature first after an election.

4) The only way the first minister leaves office is if they resign or if they are dismissed by the Crown.

5) The Crown will not dismiss a first minister unless they refuse to resign after losing confidence and there is another viable government able to hold the confidence of the legislature. This basically never happens.

6) Why doesn’t this happen? Because a first minister who can’t hold the confidence of the legislature will almost always resign. In some cases, as in BC in 2017, the first minister may first choose to test confidence and request a dissolution if they lose it. But the Crown can refuse dissolution if an election has just been held and there’s another viable governing party. In that case, the first minister only has one option: to resign or face dismissal. That’s what happened in BC in 2017.

7) So, the Crown isn’t inviting a serving first minister to form government after an election if they win fewer seats than another party. The Crown isn’t involved here and there is no government formation happening. The first minister is simply choosing to stay on.

8) Most of the time, a first minister who’s party didn’t win the most seats will resign. It’s fair to call that a custom at the federal level. But it’s not a convention.

9) Why’s that? Because conventions require three things: A) an agreement that it’s a binding rule; B) a reason for the rule to be binding; C) clear and consistent precedents.

10) The custom that the party with the most seats gets to govern has C going for it, but not A and B.

11) That said, custom carries a lot of weight; precedent is influential on its own. And first ministers who’s party didn’t come first in terms of seats usually see it as more legitimate and practical to resign. That’s why we rarely, if ever, see first ministers who don’t win the most seats stay on.

12) So, to sum up, the first minister gets to test confidence regardless of the election results, because they remain legally in office until they resign or are dismissed. The Crown, meanwhile, will not dismiss a first minister unless they lose confidence and refuse to resign, despite there being an alternative government.

A few Canadian government twitter accounts have stated that King Charles III is Commander-in-Chief of the Canadian Armed Forces. Is this correct? It depends what we mean.

What are the arguments for the idea that the Sovereign is the Commander-in-Chief?

All command authority in Canada flows from the Crown, which indicates that the King is at the apex of the military command structure. Section 15 of the Constitution Act 1867 holds that the “Command-in-Chief” of the military in and of Canada continues to the vested in the Sovereign. Commissions flow from the Crown’s authority, too, and the Crown’s powers continue to authorize various military deployments and movements. Although the Crown acts on the advice of ministers when exercising these authorities, as per the conventions of responsible government, all this suggests that the Sovereign’s formal position is analogous to that of the American and French presidents when it comes to the armed forces. We can therefore say that the King is Commander-in-Chief insofar as all commands formally flow from the Crown’s supreme military command authority.

What are the arguments against?

Commander-in-Chief is a rank and title came into English usage around the seventeenth century (to the best of my knowledge.) Following the restoration of 1660, this rank/title identified the officer who had overall command of the Crown’s forces. In the late 19^th Century, this rank/title also served to preserve the Crown’s direct connection to the armed forces, acting as a bulwark against complete Cabinet control of the military. When the British Cabinet finally established full control over the armed forces in 1904, the rank/title disappeared within the United Kingdom. In the case of the British Army, command was delegated to the Army Council and the highest ranking Army officer became the Chief of the General Staff.

This episode tells us a few things. First, it helps explain why the Letters Patent 1905 bestowed the rank/title of Command-in-Chief on the Governor General. The rank/title remained useful for colonial purposes, ie establishing the Crown’s overarching authority over Canada’s armed forces after the rank/title ceased to be operative in the United Kingdom. Colonial relations also explains the origins of section 15 of the Constitution Act 1867. This section ensured that the armed forces of Canada remained under the overarching command authority of the Imperial Crown and its officers. Today, the Governor General retains the rank/title of Commander-in-Chief, making the vice-regal representative the highest ranking officer of the Canadian Armed Forces, formally speaking.

Viewed from an historical perspective, then, Commander-in-Chief appears to be a rank/title that the Sovereign bestows, not one that the King holds himself. The King has supreme military command authority, and the Sovereign exercises that authority to bestow the rank/title of Commander-in-Chief on the Governor General.

So is the King the Commander-in-Chief or not?

To answer that question, it’s useful to go ever further back in history. Kingship was originally as much a military idea as a governing one. Kings had imperium over their subjects and domains, a concept inherited from Rome which implied the authority to command in both the military and governmental senses as we use the term today. Asking whether the King was head of the armed forces would have been self-evident at the time. This was a function of kingship and imperium. There was no need to identify this authority with another title, such as Commander-in-Chief, since that was one of the primordial powers and functions of the monarch. There’s a case to be made that this remains the case in Canada today. Command of the armed forces is a remnant or legacy of the Crown’s imperium. So, the King has supreme military command authority as a function of being the Sovereign.

To put it in a more contemporary Canadian way, supreme military command authority is a power and function of the office of the King, which is how we should interpret section 15 of the Constitution Act 1867 now. The King exercised that supreme authority to bestow the rank/title of Commander-in-Chief on the Governor General in the 1905 and 1947 Letters Patent. Strictly speaking, then, the Governor General holds the honorific rank/title of Commander-in-Chief and the King holds supreme military command authority. The rank/title of Commander-in-Chief held by the Governor General emanates from the King’s imperium.

The American concept of Commander-in-Chief, however, weighs heavily on our thinking. When the constitution of the United States was being devised, the founders went about breaking apart the monarch’s powers among their branches of government. When it came to military matters, Congress was given the power to declare war and was vested with a significant role in overseeing the appointment of military leaders. The President, in turn, was made Commander-in-Chief, meaning that the chief executive would have the command and control of the armed forces that Congress raised and funded. Over time, however, the President’s role as Commander-in-Chief has acquired a hallowed quality and was redefined to include exceptional powers and prerogatives, as seen during the American Civil War and in the decades since the end of the Second World War. A similar thing happened with the French President after the founding of the Fifth Republic.

Originally, the idea of making the President Commander-in-Chief resembled the English practice of naming an officer to command the forces of the state. But it’s now better understood as a form of imperium. When we say Commander-in-Chief today, we are often alluding to supreme military command authority as a facet of imperium. It’s in that sense that we can say that the King is Commander-in-Chief. If the term is used to mean the King’s imperium in military matters, then it works.

In sum, the King does not hold the rank/title of Commander-in-Chief in Canada, the Governor General does. But the King possesses the imperium that belongs to the office of Commander-in-Chief in contemporary presidential republics. When we use Commander-in-Chief as a contemporary way of expressing imperium in military matters, then we can say that it belongs to the office of the King.

Well, what can I say: you can’t win ‘em all.

Canadian monarchists had a good week overall. The King met with Indigenous leaders. The RCMP were front and centre in the procession. The Canadian government finally announced that the King’s effigy would not only be on coins, but that his image will replace Queen Elizabeth II on the $20 bill (I was genuinely surprised that they were so decisive here.) The King also got an updated standard and a stamp.

Not a bad batch of good news for an institution that isn’t particularly en vogue among Canadians at the moment.

Alas, there was also a fly in the anointment.

The Canadian government unveiled a new Canadian Royal Crown. The new Canadian model features maple leaves, a wavy blue line, and a snowflake on top. The snowflake in question is instantly recognizable to any member of the Laurentian Elite; it’s the same design used for the Order of Canada.

If your monarchism is steeped in tradition or religiosity, the new Canadian Royal Crown is an aberration. The other realms will be going with the Tudor Crown, which King Charles III has chosen to use, instead of the St. Edwards Crown that his late mother employed. Those two historic crowns reflect continuity and the Crown’s inherent ties to the Christian faith. Canada’s new Royal Crown, however, grafts Canadian nationalism and agnosticism onto a deeply English and religious symbol. Like nearly all efforts to modernize and Canadianize the monarchy, the result looks awkward and forced. Over time, though, it’ll probably be accepted or met with a shrug of indifference.

The Canadian Royal Crown comes after the government included a new Canadian royal style and titles in the budget bill. The updated royal style and titles drops the United Kingdom and Defender of the Faith for Canada. From now on, the King will be “Charles the Third, by the Grace of God King of Canada and his other Realms and Territories, Head of the Commonwealth”. That made be chuckle a bit, since ten years ago we were told that the retention of the United Kingdom in the royal style and titles was evidence that Canada automatically takes the British monarch as our own. Louis St Laurent’s argument that the offices of the Sovereign of the United Kingdom and Canada are not separate hinged on that language, too. Most importantly, we were told by both the government and the courts that the preamble to the Constitution Act 1867, which holds that Canada was confederated under the Crown of the United Kingdom, ensures that the British Parliament decides who sits on our throne. Now the royal style and titles won’t align with that supposedly fundamental language in the preamble. I dunno, seems kinda odd.  

As I argued in a recent book chapter, though, the Crown has no consistent meaning in Canada. Our understanding of the Canadian Crown twists, pivots, and turns to meet the demands of the day. When political expediency requires that the Crown be British, it’s the Union Jack all the way. But when we want the Crown to be Canadian, we break out the snowflakes.

To the monarchists who find this latest round of maple-washing distasteful, therefore, I can only recommend patience. A future government might insist that we go back to the Tudor Crown. The importance of history and tradition will likely be re-emphasized. The British connection may be stressed again. The preamble to the Constitution Act 1867 trumps the statutory royal style and titles, and nobody is under any illusion that Canada inherited the monarchy from the United Kingdom and that the royal family are fundamentally British.  

Snowflakes melt but the monarchy endures.

Yesterday I argued that the Lieutenant Governor shouldn’t withhold royal assent for the so-called Alberta Sovereignty Act. Both supporters and critics of the proposal agree that it’ll be unconstitutional by design. The whole point is to provoke confrontation, confusion, and chaos. If that’s the idea, why wouldn’t the Lieutenant Governor be justified in withholding assent? How could the Crown assent to a bill designed to undermine the rule of law? And how can we ask the Lieutenant Governor to leave it up to the courts to determine if the law is unconstitutional when the law will apparently rob the courts of their authority in Alberta?

If we were to strongman the argument here, we would point out that the Lieutenant Governor is the only actors who can stop this maddness, since once the law is granted assent, the Alberta government will simply ignore the courts. She can’t simply wait for the judiciary to do its job, because a Smith government has no intention of listening to judges applying federal law or the constitution.

There’s one big problem with this argument, though: if the Alberta legislature and government would refuse to abide by court rulings, why would they simply accept a denial of royal assent by the Lieutenant Governor? If they’re going ignore the courts, why wouldn’t they ignore the Crown, too?

Those pinning their hopes on a refusal of royal assent seem to think that would be the end of the story. The bill would be denied assent and there’s nothing anybody could do about it. Frankly, that seems quite optimistic, given what we know about the purpose of the proposed law.

Above all, as we’re already seeing, the legitimacy of the Lieutenant Governor would be called into question because the federal government decides who holds the office. It’s unclear to me why the Sovereignty Act people would refuse to accept the applicability of federal law and the rulings of federal courts, but kneel before the discretionary authority of the federally appointed vice-regal representative.

I suppose the idea is that they would have no choice. The bill couldn’t become law without royal assent. End of story. Except that we’ve seen this kind of thing before and it didn’t turn out that way. In 1642, the English Parliament sought the authority to appoint military commanders without having to secure the King’s approval. When a bill to that effect was brought before the King for royal assent, he refused to grant it. Did the parliamentarians shrug and give up? Not exactly. Undeterred, Parliament declared that the bill was a duly passed and binding ordinance. When their bill couldn’t become an act without assent, they came up with an alternative construct that had the same effect. When royal assent became an obstacle, parliamentarians found a way around it.

Do I think Alberta would pivot to an Alberta Sovereignty Ordinance if it could not get royal assent for a Alberta Sovereignty Act? Probably not, since this whole thing sounds more like a stunt than anything else. But it should force us to ask why we think those who are prepared to undermine the rule of law would think twice about circumventing the Lieutenant Governor. Indeed, if what they’re looking for is fight more than anything else, the vice-regal representative may be an ideal first target.

All this to say, if the argument is that the Lieutenant Governor can’t rely on the courts because the judiciary will be ignored, why should we think that the Crown will be treated any differently than the courts?

Canada’s vice-regal representatives certainly know how to keep the Crown interesting.

Today, Alberta’s Lieutenant Governor mused that she might need to check if a proposed Alberta Sovereignty Act is constitutional before granting it royal assent. She further noted that her role is one of a constitutional fire extinguisher and implied that refusing assent to unconstitutional bills might be one case where she might need to exercise her reserve powers.

Where to begin.

Well, one thing seems certain: the regretable Canadian habit of writing letters to the Queen and her vice-regal representatives has just been validated…sort of. Those who pen these letters can now claim that a vice-regal representative has publicly stated that the refusal of royal assent remains viable reserve power.

The Lieutenant Governor’s suggestion that the constitutionality of bills can be reviewed by her office, moreover, promises to give lawyers, politicians, and professors more reasons to write these letters. I mean, how often is the Charter compliance of bills the subject of debate? Not uncommonly, shall we say. If we take the Lieutenant Governor at her word, why hold back on writing to her and her colleagues? Before filing in court, fling a letter over to the Crown! Hey, maybe a few retired Supreme Court justices will get in on the action. They’ll surely be asked to conduct a few of these independent reviews for vice-regal offices, right?

I digress. As I’ve written before, I don’t think these letters should be written. They’re constitutionally offensive and largely performative. Or at least they were. The Lieutenant Governor’s comments about her role as a fire extinguisher could transform the role into that of fire hose, dousing successive unconstitutional bills.

Before we let that happen, let’s review why the Lieutenant Governor shouldn’t deny assent to bills except in the most incredibly exceptional of cases.

First, it’s not the Crown’s place to assess the constitutionality of legislation. We already have a branch of the state that does that: the judiciary. If a bill is unconstitutional, it can be challenged in the courts after it becomes law. That’s how we deal with unconstitutional legislation today. It would quite improper for a vice-regal representative to solicit an opinion on the constitutionality of a bill, then use her discretion to deny the bill assent if she’s told it’s not kosher. I could go on at length here, but let’s simply imagine one issue that comes to mind: how does one appeal her decision? Are we simply supposed to take the Lieutenant Governor’s word for it? On what grounds? This would be a usurpation of the judiciary’s proper role and processes.

Second, it would be contrary to the will of the legislature. If a bill has issues, they should be dealt with through the legislative process. If the bill still passes all the stages of that process with edges and problems, we still have to respect that this is what legislators are intent on doing as our elected representatives. That’s their role and function in our system. It’s the flip side of the courts’ role. Legislatures get to pass laws unencumbered by external actors. Once they’ve passed a law, questions about its constitutionality can be address by the courts, as noted above. But when a bill is being debated, it belongs with legislators and their assessment of its merits and constitutionality.

Ah, but isn’t the Crown one part of the legislature? Doesn’t that mean that the Crown should have a say. No, not really. The Crown acts on advice in our constitutional monarchy. When granting assent, the Crown is acting on the advice of legislators. This advice is particularly binding in the context of the legislature, since unlike rejecting the advice of a first minister, the Crown cannot assemble a new legislature of her own accord when she rejects advice, as she could do after rejecting a government’s advice.

Indeed, this highlights another reason why the Lieutenant-Governor’s comments are problematic. They suggest that a wily executive could convince the Crown to deny assent to bills the government doesn’t like. Most of the time, bills come from the government, but in a minority parliament opposition parties might be able to make amendments or introduce private members’ bills that the executive opposes. Opening the possibility of denials of royal assent risks creating an executive veto power as well.

Thirdly, we have federalism and partisanship. The federal Cabinet appoints the provincial Lieutenant Governors. Alberta’s Lieutenant Governor was appointed by the Trudeau government, much beloved by Alberta’s conservative parties. It would be hard to think of a better way to enflame tensions between Alberta and the federal Liberals than to have the federally appointed Lieutenant Governor deny assent to a bill proclaiming Alberta’s sovereignty within the federation. Ok, there would be an even better way: having the federal Cabinet instruct the Lieutenant Governor to reserve or disallow the bill. But that’s another story.

Finally, it would likely be unconstitutional for a Lieutenant Governor to deny assent today. Legally, the Lieutenant Governor has the power to do so. Constitutional convention, however, arguably demands that the Crown grant assent to bills on the advice of the legislature, save for some very exceptional cases. In those cases, though, the Crown would effectively be acting unconstitutionally to save the constitution under the doctrine of necessity.

When she made her comments, the Lieutenant Governor mentioned that she’ll be heading to a vice-regal conference in Newfoundland and that she’d speak with her fellow vice-regals about denying assent. Let’s hope she’s strongly discouraged from contemplating it or opining about it again.  

Boris Johnson won’t be the British prime minister for very much longer. He’ll either resign in the coming days or in a few months. We’ll see.

I’m not here to write about Johnson’s tenure, nor will I wade into a hypothetical discussion of whether the Queen would have dismissed him had he not resigned after a vote of no confidence from either the Conservatives or the Commons. (Ok, I’ll wade in a little: the Palace and civil service would have done everything they could to prevent it from ever getting to that point.)

Instead, I want to highlight that Johnson’s departure is a cautionary tale about ‘mandates’ and ‘terms’. If you follow UK public law Twitter, you’ll already be aware that Johnson’s claims to have a direct mandate from the British people is constitutionally meaningless and not how their system works. And guess what: it’s not how the Canadian system works, either! Johnson’s effort to stay on as prime minister by evoking the idea of a popular mandate shows us why this kind of talk is damaging to our institutions and constitutional understanding. What mattered in Johnson’s case was his ability to lead his party. Even if he’d managed to hold on to support among Conservatives, he might not have survived a confidence vote in the Commons. Losing the confidence of either meant the end of his premiership, regardless of how many people voted for his party during the last general election. Thankfully, mandate-talk had no effect on the outcome in Johnson’s case. Nobody bought into rhetoric so at odds with how the British constitution operates.

Canadians, on the other hand, love mandate-talk. We increasingly speak about first ministers and governments winning mandates during general elections. We’ve also grown quite fond of referring to prime ministerial terms, as in Trudeau is currently in his ‘third term’ as prime minister. Of course, none of this is any truer in Canada than it is in the United Kingdom. What matters here, in the end, is the confidence of the elected house of the legislature. Or it’s what should matter. Sadly, though, I suspect a Canadian prime minister would have a lot more support for the idea that they can’t be ousted in the middle of their ‘term’ because they won a ‘mandate’ from the people. I bet a surprising number of pundits and members of the public would back that claim. That’s how entrenched these concepts have become.

Now, unlike in the United Kingdom, there’s next to no chance that a prime minister would be push out by their party caucus in Canada. That’s not how we do things here. But a no confidence vote in the Commons is quite possible. We’ve seen that a few times federally and in the provinces, of late. Will our talk of mandates and terms make those episodes still more heated and confusing than they’ve been in the past? Probably. Recall that a no confidence vote gave us the 2008 prorogation crisis.

I’d like to think that we can change course here, that we can bring our terminology back into line with our constitution. But I’m not too hopeful. Had Johnson been a Canadian prime minister his appeal to a popular mandate might have saved him.

The Queen is facing two new legal challenges in Canada.

First, the constitutionality of the Queen’s appointment of Mary Simon as Governor General is being challenged because the vice-regal representative isn’t fluent in French. Her appointment could be held to violate section 20 of the Charter, as a result.

Second, an oath to the Queen required by the Law Society to Alberta to practice law is being challenged on the grounds that it violates a would be lawyer’s religious freedom.

Normally, I would say that neither of these cases stand a chance. The Queen’s appointment of the Governor General would normally be understood to be a discretionary prerogative of the monarch and, in the past, it would have been unlikely to have been considered justiciable or subject to review for Charter compliance. Likewise, oaths to Queen have been challenged a number of times in Canadian courts and these challenges have all failed.

Lately, though, it’s hard to know where the courts are going to land on Crown questions. The appointment of a unilingual Lieutenant Governor in New Brunswick was found to violate by Charter’s official languages provisions for New Brunswick. A recent BC ruling on that province’s fixed-date election law was also quite unorthodox, arguing that the Crown’s prerogative to dissolve the legislature was not a constitutional power belonging to the office of the Lieutenant Governor, but is now provided by statute.

In a forthcoming book chapter in a volume edited by Kate Puddister and Emmett Macfarlane, Canadian courts have tended to gravitate toward the most political expedient answer when the the constitutionality of the Queen or her powers are in question.

These days, it’s hard to know what courts will find or how they’ll get there. If someone were to ask me know I think the result of these new challenges will be, all I can answer is  “who knows?”