Constitutional Fire Extinguisher or Unconstitutional Fire Hose?

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.  

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