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?”

After 12 years of waiting, I’m taking my first sabbatical next month. Suffice to say, I’m looking forward to it, particularly since I have a project on prerogative power in Westminster states to kick into high gear.

What’s interesting about prerogative power is how often it’s lurking in the background of the affairs of government. Let’s look at three examples from the news in recent weeks: passports, NORAD, and special forces deployments.  

Passports

The power to issue passports is sourced in the prerogative. The rules that govern how passports are issued, denied, or revoked are found in the Canadian Passport Order. This is a prerogative instrument, meaning that it flows from the Crown’s own powers rather through a grant of authority by Parliament via statute.

The Canadian Passport Order is an example of what Bolt and I identify as an authority derived from the exercise of a prerogative. These authorities should be differentiated from the prerogative itself, since they provide orders that detail how prerogative authority is to be exercised. So, just as regulations made by Cabinet pursuant to statute are distinct from statute proper, orders made by Cabinet under the prerogative are distinct from the prerogative proper.

NORAD

The North American Aerospace Defence Command (NORAD) was established by Canada and the United States in 1957, after which it was formalized in a treaty-level agreement in 1958. In 2006, Canada and the United States extended the NORAD agreement in perpetuity. The authority to negotiate and commit to the NORAD agreement flows from the prerogative. The NORAD agreement also establishes a binational command structure that involves allowing each country to exercise operational control over each other’s forces. In the Canadian context, these operational control arrangements engage the prerogative with respect to the command of Canada’s armed forces, as well as the prerogative to ‘defend the realm’.

The NORAD agreement is a good example of how the prerogative underpins foreign affairs, military command, and operational employment as a single source of executive authority recognized by common law.

Special Operations

The prerogative is the legal authority exercised to deploy armed forces internationally. Although Parliament has the authority to fund armed forces, once they are raised and established, the Crown determines how they are used in support of Canada’s foreign affairs or national defence, which can include assistance to allies.

Some might argue that the prerogative only provides for deployments that are authorized by the UN Security Council or article 5 of the NATO agreement, but the historical basis for this claim is weak. One need only look at the 1999 air campaign over Kosovo to see a Canadian military deployment that was not authorized by the UNSC or article 5. Likewise, deployments of the Canadian military to provide humanitarian assistance in various countries and regions are numerous.

Although the courts may one day find otherwise, we have no evidence that the Canadian government lacks the legal authority to deploy the armed forces internationally, either below or above the threshold of armed conflict. Indeed, writing in 1820, Chitty notes the following with regarding the prerogative: “With respect to the regular forces of the kingdom…the King is not by law restrained to any particular limits so as to the services in which they may be employed against his enemies. They may of course be sent to any place, or employed to any extent, which his Majesty may think fit.”

Now, this does not mean that the contemporary Canadian executive is not constrained by any laws in terms of how the military is used. Domestic law applies to the military aboard, as does international law and the law of armed conflict. The point is simply that the absence of a statutory authority to deploy the armed forces internationally does not mean that the government has no authority to do so under Canadian law.

Where does that leaves us regarding the reported deployment of Canadian special operations forces in Ukraine? Well, if they have been deployed there, it’s safe to assume that they are there at the behest of the Ukrainian government; they aren’t there to occupy, but to assist. The reports are saying that they’re providing weapons, training, and intelligence to the Ukrainians. The deployment of these forces, assuming it is happening, is therefore within the authority of the prerogative with respect to foreign affairs and international deployments.  

Ontario’s Superior Court of Justice has found that section 12 of the National Security and Intelligence Committee of Parliamentarians Act is ultra vires. Section 12 seeks to prevent NSICOP members from using their parliamentary privilege of free speech to disclose information they learn as part of their work on NSICOP. Since the parliamentary privilege of free speech would normally protect proceedings in Parliament from the courts, section 12 was meant to ensure that NSICOP members would still be bound by the Security of Information Act during parliamentary proceedings and subject to prosecution if they violated the provisions of said act as part of parliamentary proceedings. Professor Ryan Alford challenged the constitutionality of section 12, arguing that an ordinary statute could not restrict parliamentary privilege in this manner. Fregeau J. accepted Alford’s argument, finding that section 12 of the NSICOP Act was beyond Parliament’s constitutional competence.

I was skeptical that Alford’s argument would carry the day. The houses of Parliament can regulate their own affairs and delimit the privileges of their members. While I can see why doing so through a regular statute is questionable, and I share Alford’s underlying conviction that section 12 undermines Parliament’s constitutional responsibility to hold the executive to account, I’m not yet convinced that Parliament can’t limit the privileges of individual members in this way. I suspect that the federal government will appeal this case, so it’ll be interesting to see where it ultimately lands.

If the Superior Court’s reasoning is upheld, however, it should have an important impact on NSICOP and how we understand the separation of powers in Canada.

Section 12 of the NSICOP Act goes to the core of why NSICOP is what it is. NSICOP is not a committee of parliament. It’s an executive body made up of parliamentarians who are appointed as NSICOP members by the Governor-in-Council. NSICOP was apparently established as an executive body rather than a parliamentary committee to build trust between the Committee and the intelligence community. The idea here was that the intelligence committee had to get used to being overseen by parliamentarians and needed assurance that this Committee would not leak or misuse classified information it was given. Section 12 played a critical role in this construct, since it was meant to ensure that NSICOP members could not use their parliamentary privilege to disclose classified information contrary to the Security of Information Act.

If section 12 is ultra vires, the logic of having NSICOP as an executive body to limit what members can say in Parliament no longer holds. Simply put, NSICOP members have regained their privilege to disclose classified information during parliamentary proceedings without the being prosecuted under the Security of Information Act. The argument that NSICOP has to be an executive body to prevent this from happening may now be null and void. While there may be other reasons to keep NSICOP as an executive body, there are also a number of reasons why it should be a statutory committee of Parliament instead. Assuming that section 12 is ultra vires, the arguments that NSICOP must be an executive body to protect classified information and appease the fears of the intelligence community have been dealt a serious blow.

Given all the other reasons why Parliament should have a veritable national security committee, the erasure of section 12 should prompt the government to remake NSICOP as a parliamentary body.

In terms of the separation of powers, Fegeau J’s judgment reinforces the idea that the branches of the state have inherent constitutional powers. He makes a compelling case that parliamentary privilege is an inherent part of the Canadian constitution, given section 18 of the Constitution Act 1867 and the legislature’s constitutional functions and the requirement for each branch of the state to respect the sphere and dignity of the others.

If this is the case, it raises the question whether the executive has inherent constitution powers by virtue of part III of the Constitution Act 1867, notably via sections 9 and 15. I’ve previously argued that section 15 can be understood to include inherent executive powers, but suffice it to say, this idea is untested and seen as incompatible with legislature’s supremacy over the executive in the Westminster tradition. Fegeau J’s ruling makes me think the concept of inherent executive power isn’t that far fetched.

The Queen’s Bench of New Brunswick just ruled that the appointment of a unilingual Lieutenant Governor by the federal government violates the Charter. However, Chief Justice DeWare declined to invalidate the appointment, noting the significant ramifications of doing so (i.e. basically declaring that all legislative enactments and executive decrees since the appointment would be null and void.)

This is an interesting, but implausible, ruling.

Among other things, the ruling side steps the most important counterpoint: that one constitutional provision shouldn’t invalidate another. Section 58 of the Constitution Act 1867 is a constitutional provision. Treating it as a common law prerogative to ensure that the appointment is justiciable and subject to a Charter challenge looks like a sleight of hand. Put differently, the appointment of an LG is a constitutional power of the federal Cabinet, not an authority recognized at common law that can be displaced by statute.

Yes, the appointment of an LG is without a doubt an executive action by the Prime Minister. But it’s hard for me to accept that it’s not a constitutionally insulated decision in terms of who is named, not only as a political question but in terms of the Crown’s discretion over vice-regal representatives. I also don’t see how this ruling aligns with past findings regarding ministerial and senatorial appointments.

Next, the ruling tells us that this isn’t about the bilingualism of the LG as an individual, but about the LG as a institution. As per the Charter, people in New Brunswick have the right to communicate with, and get services from, provincial institutions in either French or English. In order to get around the fact that a member of the public would get communications and services from the office of the LG in either language, though, the ruling still points out that the LG herself doesn’t speak French, and that nobody else can act for the LG, meaning that someone couldn’t communicate with a member of the public in that language in her stead. So, the issue isn’t the attributes of the LG as a person, but of the institution, though the LG is so unique as a institution that the attributes of the LG as a person are what matters here. That’s a lot to unpack and wrap one’s head around.

The ruling makes important points about the LG’s role in New Brunswick society and how the province’s bilingual essence is recognized by the constitution. Still, I can’t help but feel that the issue here isn’t about Charter compliance, but about constitutional convention. The idea that someone’s Charter rights are being violated because the LG can’t engage in conversations in French seems like a really big stretch.

To my mind, the ruling would have been on much firmer ground had it found that the Canadian constitution includes a convention that the Governor General and Lieutenant Governor of New Brunswick should be bilingual in English and French. The Charter could have been used to bolster the case that this convention exists. The court could therefore have found that the convention was violated in this case, but that as a political rule, the convention is not judicially enforceable.

Instead, the ruling uses an expansive understanding and application of the Charter to arrive at the conclusion that the government violated the Charter when appointing a largely ceremonial figurehead, but that it is up to the federal executive to find a remedy as per Khadr and the separation of powers. Basically, there was a much easier and more plausible an way to get to the same end result. Indeed, I can’t help but feel that the ruling will collapse on appeal on account of its highly complex and contestable interpretations of the interaction between different parts of the constitution.

I have an op-ed in the Globe and Mail today calling for a security-cleared national security Committee of Parliament.

Here are a few responses to questions and counterarguments I anticipate.

1) How will we deal with members’ privilege of free speech?

We can keep the current provisions of the NSICOP Act that limit the privilege.

Parliament can legislate specific criminal provisions for the committee, as Australia does.

We can ensure that the houses sanction members who abuse their privilege.

This isn’t the problem it’s made out to be, sorry.

2) Won’t the committee be partisan theatre?

When dealing with classified information, the committee will not be meeting in public. This will reduce the partisan theater, since there will be nobody watching.

There may be open sessions, sure. Will that be taken over by theatrics? Maybe. But it likely won’t be the same behind closed doors when the committee is doing its classified work. This happens in Belgium, where parliamentarians will be more partisan when in a public committee, but less so in a closed committee.

Oh and take a look at the NSICOP members from the last Parliament. You may notice that some of the opposition members engaged in partisan theatre when in the legislature and in public. Did they do the same as part of NSICOP? Probably a lot less. Maybe that’s because theatrics are put on and reserved for public places where they’ll get attention. Just a thought.

Not all committees are partisan theatres. The Public Accounts Committee does serious work, for instance. Evidence from other countries suggests this would happen with a parliamentary national security committee, too.

Perhaps more importantly, are we saying that we shouldn’t bother with any legislative committees because of their theatrics? Should be delegate all accountability functions to officers of Parliament and executive bodies? Why not?

3) We’ll end up with terrible members because the executive won’t control their appointment.

The UK Intelligence and Security Committee members are appointed for the life of a Parliament by the houses on the recommendation of the PM and the leader of the opposition. This is effectively the process we have now for NSICOP, but in a legislative setting. We could mimic this without difficultly.

Again, this isn’t the problem it’s made out to be.

4) Members would be irresponsible yahoos if they were part of a parliamentary committee.

Why? Why would having NSICOP as a legislative committee change the behaviour of the members, particularly if it does most of its work in camera and there are clear penalties for leaking or mishandling information? What’s the theory here? How does putting the committee in the legislature fundamentally alter its dynamics?

More to the point, someone needs to explain how being appointed to an executive office magically changes someone’s suitability to have a clearance or do serious work. What miraculous transformation occurs when a parliamentarian is appointed to a Governor-in-Council position, or better yet, becomes a minister?

Put differently, why do we think parliamentarians are necessarily untrustworthy if they don’t also hold an executive office? What is it about holding an executive office that makes a parliamentarian more trustworthy than when they only hold a legislative one?

5) The current controversy over the National Microbiology Lab demonstrates that Parliament isn’t ready for a national security committee.

How are we making this connection? The opposition is using the powers it has to put the government in a tough spot. That’s usually what opposition parties do in a minority parliament.

We actually have no evidence that the partisan fervor over the documents would be replicated in a national security committee. In fact, we can easily make the opposite case. Right now, demanding the documents is attractive because it’s putting the government in an impossible position. If there were a parliamentary committee and processes to handle these documents, the government would be in a far less difficult position, which would lead the opposition parties to focus on something else.

Arguably, it is precisely because Parliament can demand the documents but that the legislature can’t safely handle them that the opposition is doing everything it can to make the government suffer here.

6) Why can’t we rely on ad hoc committees?

The ad hoc committee established to deal with the Afghan detainee documents was also executive-based. Presumably, the proposal to create another ad hoc committee would be the same. In that sense, an executive ad hoc committee faces the same challenge as NSICOP.

Above all, though, both ad hoc committees and NSICOP still don’t leave Parliament with a capacity to deal with classified information. That’s where we need to it to avoid future clashes between privilege and protecting secrets.

7) Parliamentarians won’t want access to classified information or to sit on a security cleared committee

This one is courtesy of Steve.

Here’s the problem, though. Parliamentarians have been sitting on NSICOP, with access to classified information.

So, this thing that won’t happen is already happening.

Why are parliamentarians already doing this? Because the law says that there will be this committee.

A law creating a legislative committee would do the same.

Parliamentarians would do what they supposedly won’t do but are already doing because they would have to.

With Barbados becoming a republic, this blog turns once again to the question of “Why can’t Canada ditch the monarchy?”

As any good reporting on the subject will note, the answer is that it would be too hard Canada to become a republic. To do so, we would need to use to unanimous amending formula set forth in section 41 of the Constitution Act, 1982. Even if we could agree to end the monarchy in principle, opening up the constitution would inevitably lead to negotiations about other issues that won’t go anywhere.

Given the amending formula, dedicated Canadian republicans should focus their efforts on the United Kingdom. Were the United Kingdom to become a republic, we would be forced to deal with the monarchy in our own constitution.

Or would we?

In a new article in Review of Constitutional Studies, Marie-France Fortin outlines a novel argument as to why the 2013 changes to the rules of royal succession did not trigger an amendment to the “office of the Queen” under section 41(a). As I read her article, she argues, in part, that the rules of succession apply to the Sovereign’s natural capacity only, rather than the Queen’s official capacity. Since the Constitution Act 1982 deals only with the office of the Queen, it follows that a matter pertaining to the Sovereign’s natural body would not trigger the unanimous amending formula.

Extrapolating from this argument, we might ask if Canada actually has a natural bodied Sovereign in a constitutional sense? Specifically, if the office of the Queen and other references to the Queen in the constitution refer to the Sovereign in an official capacity alone, we can ask if the Queen is merely an office in a Canadian context. And if it is, could this office be left without a natural occupant?

The answer to the first question is that, no, the office of the Queen is occupied by a natural person in Canada. That person is Queen Elizabeth II. She occupies the office of the Queen of Canada because British law identifies her as the Queen of the United Kingdom and there is (apparently) a principle of symmetry in the Canada constitution that the office of the Queen of Canada is occupied by whoever occupies the office of the Queen in the United Kingdom.

But what would happen if there was no Queen of the United Kingdom or natural person identified as holding that office in British law? What would happen if the was no foreign monarch to take as our own? Perhaps nothing.

There’s clearly no requirement to fill the office of the Queen in Canadian law, since Canadian law doesn’t include any rules about who fills that office. The only thing we have is a principle that we take the United Kingdom’s monarch as our own. So, we could technically just leave the office empty or perhaps try to fill it with a unilateral section 44 constitutional amendment by Parliament.  

What would be the practical effect of leaving the office of the Queen vacant? Arguably nothing, thanks to the Letter Patent 1947. The Letters Patent 1947 (apparently) allow the Governor General to exercise all of the Queen’s powers, including those that we’ve decided to leave with the Queen, such as the power to appoint and dismiss the Governor General and name additional senators under section 26 of the Constitution Act 1867. Under this reading, which is supported by the absence of a Canadian regency act, the Governor General would simply exercise the Queen’s powers in the absence of a natural bodied Sovereign. Interestingly, of course, this also means that Canada could exclude the Queen or a future King from exercising any powers for or in Canada right now.

Those who wish to avoid reopening the Canadian constitution can therefore take solace. We might not have to discuss the office of the Queen or become a republic if the United Kingdom did.

A whole host of other problems might arise if this happened though, notably around whether the executive could exercise the Crown’s powers of a person under common law if the Queen has no natural capacity, but we’ll leave that for another day.

I have a new article out in Canadian Public Administration about defence intelligence and the Crown prerogative. The article is a response to two reports on defence intelligence produced by the National Security and Intelligence Committee of Parliamentarians (NSICOP), and a wider reflection on how prerogative power fits within Canadian modern government.

One issue that’s operating in the background of my analysis, but which I didn’t have room to explore in detail, is how debates about the Crown prerogative are caught up with form over substance.

What do I mean here? Essentially, critiques of the prerogative often focus on the legal form that an executive authority has (common law or statute), rather than what that authority substantially empowers the executive to do.

I’m skeptical there is an inherent benefit to replacing the form of an authority while leaving the substance of that authority unchanged. To my mind, it’s not evident why the form of the authority should change if we aren’t planning on altering the capabilities or activities that are authorized. In the case of defence intelligence and the prerogative, there doesn’t seem to be any substantive concerns with the fact that DND/CAF have intelligence capabilities or that the intelligence activities they’re currently undertaking. Instead, the worry is simply that some of these capabilities and activities are sourced in prerogative rather than statute.

As a rejoinder, my colleague Craig Forcese has argued that form and substance are intimately connected when it comes to prerogative. Specifically, Craig has posited that prerogative is an “uncertainty engine”; because the authority granted by prerogative isn’t codified, we aren’t sure what it does and doesn’t authorize. Replacing prerogative authority with statute would address this uncertainty.

As I allude to in the article, though, this gives legislation too much credit. Statutory authority is often broad and unclear about what it might and might not allow. Indeed, the courts would have a lot more time on their hands if statute had a significant effect on legal uncertainty. As discussed in the article with respect to intelligence matters, for example, there have been important interpretative disagreements about the CSIS Act. Statute doesn’t necessarily remove uncertainty, unless you’re trying to explicitly forbid certain things. And even then, the language used to forbid can be contested and subject to varying interpretations.

Are the interpretive questions that surround prerogative worse, though? I don’t see any real evidence of that. Most of the landmark cases we have about the prerogative have been about whether something the Crown/executive did fell under the authority provided by the prerogative. But it’s hard to see how this is any different than other interpretative disputes related to statutes or the common law generally.

So, when the argument is made that all defence intelligence activities should be placed on a statutory basis, this leads me to ask: what will this change, substantively?

Will it protect defence intelligence from infringing on the rights of Canadians? The Charter, Privacy Act, and Criminal Code already prevent that, since prerogative is limited by the wider statutory environment. Will it provide greater certainty about what defence intelligence can and can’t do? If the statute is crafted in a way that limits defence intelligence to specific types of activities it might, though given the significant risks this would pose to the CAF’s ability to quickly adapt to new threats and operational circumstances, I suspect the statute would be broadly worded to allow for a wide degree of flexibility.

Statute could, of course, provide DND/CAF with more authority than prerogative currently provides, as NSICOP recommended with respect to empowering the military to gather intelligence about Canadian foreign fighters, but that’s not really a certainty question. As NSICOP argued in its second defence intelligence report, statute would be needed to grant DND/CAF this authority precisely because the military’s lawyers don’t think that prerogative allows them to gather intelligence that violates the rights of Canadians, even if they are foreign fighters.

Interestingly, though, looking at the United Kingdom, we see that additional authorities can be granted to defence intelligence (in the British case, the Chief of Defence Intelligence under the Investigatory Power Act 2016) without displacing the prerogative as the underlying authority to conduct defence intelligence. This suggests that we could fulfill NSICOP’s recommendations with respect to foreign fighters without displacing the prerogative. We could simply layer a statutory authority on top of the prerogative. In fact, this wouldn’t be all that different from how we handle pardons, although in that case the relevant statute doesn’t further empower the executive, but adds a process alongside the Governor General’s prerogative authority.

Anyhow, you can now see why I couldn’t include this line of argumentation in the journal article itself (word limits and such). As much as I get why prerogative rubs people the wrong way because it’s tied to the historical powers of the monarch and the great confrontations between the Crown and Parliament, the form-focused argument that prerogative is bad simply because it’s a power recognized at common law rather than one granted by Parliament isn’t very persuasive. As I concluded in the article, the real issue here is the substantive things we want or don’t want defence intelligence to do.