The Canadian Red Ensign

The Canadian Red Ensign

Friday, September 9, 2022

Regina Elizabeth II, Requiescat in Pace!

Something that we knew was going to happen sooner rather than later, but hoped that it would be much later, has occurred.   Her Majesty, Queen Elizabeth II, who has been our Sovereign for the entirety of my lifetime, who several years ago surpassed Queen Victoria’s record as the longest reigning monarch in our line of succession, who this year achieved her Platinum Jubilee, the seventieth anniversary of her accession to the throne, has passed from us.   Since she was a devout, believing and practicing Christian of the Church of England, I can say without irony: Rest eternal grant unto her, O Lord, and let light perpetual shine upon her.  May she rest in peace.  


My condolences go out to our new Sovereign, His Majesty King Charles III, and, of course, to the rest of the Royal Family for the loss of his mother.  In monarchy, the most ancient of state institutions, the pre-Modern idea that family and kin are more fundamental to human society than the contracts of the marketplace is retained, and so, traditionally, a king or a queen, stands in relation to the people of the realm(s) over which he or she reigns, as father or mother.      Queen Elizabeth II exemplified this aspect of her office, although in her case we tended to think of the role as more grandmotherly than motherly.   For this reason, the loss we feel on her death is closer akin to that of His Majesty and the Royal Family, than what we might feel upon the death of a good or at least passable elected politician should such a rara avis ever make an appearance again.


I have written much about the benefits and virtues of the institution of monarchy over the years.   I have often made the point that the institution is good – better than any other state institution – and worth defending, regardless of who holds the office, but have always added that in the case of Queen Elizabeth II, the person holding the office was exemplary as well.   Even in her death, this remains true.   A few hours ago the Prime Minister addressed the Dominion of Canada.    This is a man for whom in Catullan terms I admit to having far more of the odi than the amo.  While I generally cringe every time he opens his mouth, and on most matters of controversy I could not imagine two views further removed from each other than his and my own, I could not fault what he had to say on the occasion of Her Majesty’s passing.   It was only what was appropriate.   As I have said many times in the past, one of the chief ways in which a hereditary monarch is superior to an elected head of state such as a president, is that the office is not filled by the representative of a faction winning the fundamentally divisive popularity contests we call elections.   If the executive ministers of government who make the day to day decisions of government and exercise its powers are elected in such contests, as they are in our system, this makes it all the more important that at the head of state we have a hereditary monarch who is above the factionalism and division.   While this capacity to unify is vested in the office of monarch itself, the person who holds the office can by their words and behaviour, either complement or detract from it.   That Her Majesty in her death could put the Prime Minister and myself on something close to the same page for even a second demonstrates that she exemplified it par excellence.


Stephen Leacock once praised the wisdom of the way our system combined the “dignity of kings” with the “power of democracy”.   Our institutions of monarchy and parliament complement each other in many other ways as well.   One that I would like to briefly discuss is the balance between continuity and change.   That both are necessary is an insight as old as Heraclitus.     There is continuity as well as change in both institutions but as principles, continuity is primarily associated with monarchy and change with parliament.  In parliament, that ancient institution in which the elected representatives of the different constituent elements of the realm debate legislation and policy, divisive factionalism is unavoidable.   For this reason, it is good that parliament is associated with the principle of change.   Earlier this year, when Queen Elizabeth II achieved seventy years on the throne, this was cause for celebration.   It is highly unlikely that we would see a political party’s having held power in parliament for seventy years straight as a similar cause for celebration.   A Platinum Jubilee for a reigning queen is a wonderful thing.   A Platinum Jubilee for a sitting prime minister would not be.  The principle of continuity is best exemplified in the institution of monarchy, and the principle of change in the institution of parliament.   I only wish those we sent to parliament were more open to the kind of change that involves going back to something that has worked in the past when innovations prove not to be improvements but the opposite of such.


In terms of constitutional law, the principle of continuity is expressed in the phrase “the king never dies.”   Obviously, “the king” in the expression is the office not the person, transferred immediately on the passing of the previous monarch to the next heir in succession.   It is in accordance with this principle that we say:


The Queen is dead.   Long live the King.


God Save the King.

Wednesday, September 7, 2022

Fires and Fire Extinguishers


The new Lieutenant (pronounced lef- tenant) Governor of Alberta has recently and needlessly provoked outrage among the “conservatives” in that province, that is to say, Albertans who are small-l liberals in the sense that term conveyed in Canada in the days when Sir Wilfred Laurier led the big-L Liberal Party.   When asked by a representative of the fourth estate, whether she would sign royal assent to Danielle Smith’s Alberta Sovereignty Act, she said that she would consult experts about the constitutionality of the bill before doing so.     Few of those who took immediate umbrage with this answer, seemed to notice how strange it was that the question was asked in the first place.   While the conclusions of inductive reasoning are not infallible, the fact that bills that pass the appropriate legislative body, provincial legislature or Parliament, have always, or the next thing to it, received royal assent in the past means that it is rather silly of a reporter to ask such a question unless there is reason to think that it might be different this time.   There was no such reason to think this until the Lieutenant Governor answered the way she did.


Before proceeding to look at some of the criticism this answer has received, let us back up a bit and provide some background information.   The Lieutenant Governor of a province, as you may have deduced if you did not already know, is the provincial representative of our Head of State, Queen Elizabeth II, corresponding provincially to the Governor General in the Dominion government.   Just as the Governor General, assuming the Queen is not present to do so herself, summons Parliament together and dissolves it, and appoints on the basis of who commands the support of Parliament, the executive ministers of Cabinet, so the Lieutenant Governor does with the provincial Legislative Assembly and the provincial Cabinet.  Just as all bills that pass Parliament – the House of Commons and Senate – become law when the Governor General acting on behalf of the Queen signs royal assent, so with the Lieutenant Governor and the bills that pass the provincial Legislative Assembly.


The Alberta Sovereignty Act is not a bill currently before the Alberta Legislative Assembly.   It is something that Danielle Smith has proposed as part of her campaign to become the next leader of Alberta’s United Conservative Party.   The UCP needs a new leader because of the abysmal job that their current leader Jason Kenney has done as party leader and provincial premiers, especially during the bat flu in which he attained the dubious distinction of being the premier who locked up the most Christian pastors for doing their duty and obeying God rather than man.   Danielle Smith, who is the frontrunner in the race to replace Kenney, was formerly the leader of the Wildrose Party of Alberta which merged with the provincial Progressive Conservatives to form the UCP in 2017.   The Alberta Sovereignty Act is the reason why she is frontrunner.   It is not, as some might mistakenly conclude from the title, a proposal of formal secession of Alberta from the Dominion of Canada.   It is rather a proposal that Alberta claim for herself the same position, vis-à-vis the Dominion government, that the province of Quebec already enjoys, that is, the right to ignore the Dominion government on matters that she thinks are her business, and not Canada’s.   Smith maintains that this would be done within the limits of the Canadian constitution, and, indeed, would be merely reclaiming what is allotted to the province in the constitution.   Since the Act has not even been drafted yet, it is rather premature to opine on whether it meets the lofty goals of this rhetoric or not.   


Those who objected to the way Alberta Lieutenant Governor Salma Lakhani answered the strange question, objected to both the content of what she said and to what we might call the context in which she said it.   Like the Lieutenant Governor herself, they were partially right and partially wrong. 


“We are a constitutional monarchy and this is where we keep checks and balances” she said.  “I’m what I would call a constitutional fire extinguisher. We don’t have to use it a lot, but sometimes we do.”   While many of the objectors, including some who really ought to know better like Rebel News founder Ezra Levant, took exception to these words, there is nothing in the way of content here that is not fundamentally correct.   There is a constitutional as well as a ceremonial importance to the office of the Queen and that of her vice-regal representatives.   Emperor Franz Joseph I of Austria-Hungary famously told American President Teddy Roosevelt that his role as monarch was to protect his people from their governments.   The Fathers of Confederation saw the role of the monarchy in similar terms, as the final check on the danger of Prime Ministerial dictatorship.   The greatest constitutional expert our country has ever had, the Honourable Eugene Forsey, called this “an absolutely essential safeguard of democracy”.    The problem is not with the principle of what Lt. Governor Lakhani said, but with the application.    The most important power reserved to the Crown in our constitution, is the power to dissolve Parliament/Legislature, call an election, and if need be dismiss the Prime Minister/Premier.    Forsey’s dissertation on the subject, later published as a book, was entitled The Royal Power of Dissolution.    The fire extinguisher is indeed an apt metaphor for this, but it is only to be used when there is what would be the equivalent of a fire in this metaphor.   The Alberta Sovereignty Act as proposed by Smith is not such a fire.   It may be unconstitutional, it may not be - this can only be determined when the text is made available.   From the proposal, however, if it proves to be unconstitutional, it will not be in a way that corresponds with a fire, but in a manner in which the courts are the appropriate venue to deal with the unconstitutionality.


What would constitute a fire?


The closest thing to it that Canada has ever seen has been the behaviour of the current Prime Minister in Ottawa.  At the beginning of the bat flu, when fear was at its zenith and rational thinking at its nadir, he seized the opportunity to unburden himself of accountability to Parliament.   Having been reduced to minority status from a huge majority in a humiliating Dominion election the year previous, almost immediately after the World Health Organization declared a pandemic, he sent Parliament home, calling them back together temporarily to ask them to approve a measure that would in effect have suspended the Magna Carta for two years, giving him carte blanche to tax and spend as he saw fit without having to account to Parliament.   While he was only given part of what he wanted, he nevertheless proceeded to govern from in front of the television camera before the front door of his cottage, while Parliament remained in suspension.   A year into the bat flu, he called a snap vanity election, which merely returned the status quo ante, but in the course of campaigning decided to take the dangerous and provocative path of demonizing and scapegoating a portion of the Canadian public that turned out to be much larger than he thought.   When, after the first two years of the bat flu, he began imposing new restrictions while the rest of the world was abandoning them, he found himself faced with a massive but peaceful protest.   Indeed, the protest was far more peaceful than any other mass movement of the last two years, many of which have been called “peaceful” or “mostly peaceful” despite being essentially riots characterized by violent language, violent behaviour, property destruction, looting and vandalism, none of which could be found in the truckers’ protest.   When defaming the protestors didn’t work, he evoked the Emergency Measures Act, giving himself the kind of powers designed for use when the country is besieged in war, to crush the protest.   He has continued since, to use law enforcement, the revenue agency, and other such branches of government to inappropriately attack his personal and political enemies.   If there is anything lacking to qualify his premiership as the sort of “fire” for which the reserve constitutional powers of the Crown are the “fire extinguisher” it is only the refusal to relinquish power after losing an election.


When it comes to what I have dubbed the context of the Lt. Governor’s remarks, her critics are on firmer ground.   The Alberta Sovereignty Act, whatever its merits and demerits might be, is not the sort of thing for which the reserve powers of the Crown are intended, and, worse, is a multilevel political matter.  What I mean by that is that it is at the present time at the heart of one political contest, the race for the leadership of a political party, the UCP, but should the person proposing it win that race, it will then become a bill to be debated in the Alberta Legislature between the various parties represented there and potentially an issue in another political contest, the next Alberta provincial election.   There is yet another level on which it is political in that it is of such a nature as will almost certainly generate contention between Alberta and other provinces and between Alberta and the Dominion government.   A Lieutenant Governor should not be involving herself in such matters.


One of the foremost benefits to the institution of hereditary monarchy in the age in which we live, is that a hereditary monarch is above politics in the partisan sense of the word.   For an example of what can happen when the head of state is not above partisan politics but is elected to office by running as the representative of a faction, we need look no further than the republic to the south of the 49th Parallel.   Last Thursday, the current occupant of the White House gave an intemperate rant at Independence Hall in Philadelphia about how the approximately half of his country that voted for his opponent in the last election were some sort of existential threat to the United States and democracy.   To make this speech, already creepy enough, even more threatening, he delivered it from behind a lectern stationed in front of blood red illumination, mingled with shadows, while flanked by US Marines, conjuring up the images of dictators in general, Nazi Germany in particular, and the devil in hell.   This is what you will eventually get, when you fill the office of the head of state, the person who represents the entire country, by partisan election. (1)   Parliamentary government under a hereditary monarch is much better.    Queen Elizabeth II herself, has always understood that since her office is above partisan politics, she has a duty to that office not to descend into partisan politics personally.   Those charged with representing her in a vice-regal capacity in Canada, whether at the Dominion or provincial level, have a responsibility to follow this example.   Here, the Lt. Governor of Alberta has clearly failed.   Perhaps this part of her duty was not made plain to her.


God Save the Queen!


(1)   Totalitarian countries have been, almost without exception, republics – the Cromwellian protectorate, the first French Republic i.e. the Reign of Terror, every Communist country (they generally call themselves People’s Republics), Nazi Germany.   The freest countries in the world, with only a few exceptions, have had parliamentary government under a hereditary monarch.   Dictators are fundamentally a democratic phenomenon.  The dictator claims absolute power over people, because he claims to speak for “the people”.   Whereas kings and queens are the fathers and mothers of their countries, dictators are always Big Brother.   Dictatorship like democracy, is all about power, the ability to compel obedience.   Monarchy is about authority – the respected and recognized right, derived from a number of sources including ancient prescription and constitutional succession, to lead.    This distinction is reflected even in the difference between the two Greek suffixes of the words themselves.   The ancients understood democracy to be the mother of tyranny.   Modern democracy has become more totalitarian over time.   The original problem with democracy, as Alexis de Tocqueville spelled it out in the nineteenth century in Democracy in America, was the “tyranny of the majority”, i.e., the majority trampling over the rights of the minority.   The original Modern solution to this problem was to temper democracy with liberalism, in the sense of acknowledged, protected, rights and freedoms of individuals and minorities with which governments, even with majority backing, are forbidden to interfere.   NB, minority here means “the numerically less”, and not, what more recent liberals and democrats seem to think it means, people of certain designated skin colours, ethnicities, national origins, religions, sexual orientations, etc.  More recently, replacing the majoritarian principle with the consensus principle, has been the preferred solution.   This, however, makes things worse.   Under the consensus principle, a democratic decision is not valid without universal participation and universal agreement.   Universal agreement, however, translates into “dissent will not be tolerated.”   This is why such present day liberal democrats as the current occupier of the White House and the current Prime Minister of Canada are so absolutely intolerant of all who disagree with them.