CANADA: Of charters and the common law
The just about still loyal white north
One of the silliest decisions Canada has ever made was when we decided to 'repatriate' our constitution in 1982. The grounds for doing so — to ensure the unimpeded exercise of executive power by Ottawa — was, naturally, entirely specious. The British North America Act, and all the other developments in self-government which took place after 1867, were fully completed by the time they were ennunciated in 1931's declaration of the Statute of Westminster. In other words, we didn't need to do this, not, at any rate for the reason being claimed for it. Some admirable (UK) Tory backbenchers engaged in the slight constitutional impropriety of actual opposition to the repatriation (requests by 'Dominion' governments to Westminster to legislate for them via any of Parliament's residual competences having long been passed automatically and without controversy). And, on the grounds they claimed, the non placets have long since been proven right. Old India hands like the late John Biggs-Davison took their stand on what the Canadian House of Commons would end up doing to our treaties with the country's aboriginal peoples, should that House gain the competence to fiddle with them. You won't hear many of our 'first peoples' declaring that this has been a change for a better. The other disaster stemming from 1982's vandalism has been 'the Charter'.
Sad to say, Britain is now becoming well accquainted with what 'the charter' is all about, but basically it's a PC code of 'Euro-rights'. Now Canada always, much like the Scottish aspect to the UK's legal system, has maintained two distinct juridical tendencies. Once New France became a British possession, one of the accomodations made with the French planters was to preserve locally key elements of their legal tradition. It's not one I much care for, but that's almost the point: even when especially bigoted Canadian Tories like me had any sort of influence on Canadian politics, we, weirdly enough, genuinely tolerated fundamental diversity like this. The Charter of course is more or less entirely devoid of any common law raison d'etre, and therefore, like all recent Liberal innovations, excludes utterly the pretensions of competing and alternative ideologies. That and, it's been so badly drawn that it's helped contribute massively to our profound, cyclical constitutional instability. In a country that has a potentially fatal national cleavage, this has been inept goverance of a high order indeed. But now here's the surprise — a Judge, in Canada, subject to all the pressures judging under the Charter entails, has managed to get something right. And it couldn't be on a more amusing and satisfying subject.
In Ontario, Justice Paul S. Rouleau of the Superior Court, has dismissed a lawsuit that sought to impose the Canadian Charter of Rights over the Act of Settlement. This, as you'll obviously know, governs the succession to both the crown of Canada and Britain (incidentally, I am not here going to get into the briar patch of whether there should now be reasonably regarded as being separate crowns of both Canada and the United Kingdom, or whether there is still just one, indivisible sovereign; though the editors may tempt me . . .) What's truly astonishing, by the recent standards of the Canadian judiciary, is that this ruling is in line with what those who legislated the relevant corner of the law intended! Nothing in the Charter or Repatriation allows for retrospective and unilateral Canadian annulment of pre-dating British law as affecting the crown. To see this discretion observed, and not inventively queried, was a minor miracle in its own way.
So what was the fuss about, that ordinarily a chartered court would have disengenuously seized as an opportunity to legislate from the bench over? The vexing point about the Act of Settlement for the progressive mind is that it bars Roman Catholics from the prospect of succession: it's also, inevitably, quite the most absurd and preposterous invocation of 'human rights' ever countenanced anywhere in the English, or even French speaking world. Really, whose human rights exactly are being abused by the Act? Care to name them? Princess Marie-Astrid perhaps? No, it's a bad argument even by the lights of Liberalism. It's also a remarkably false sounding concern for Catholicism, leastways if you are obliged to listen to the habitual opinion of Canadian liberals towards that Church. Few Anglophone lefts have been as dishonestly viscious in their treatment of the hierachy over the failing of perverts than has Canada's. Trust me, concern for the rights of poor absued Catholics is generally not what the Canadian Liberal party, and its tame press, does best.
Brought in Her own court, the case against the Queen has been pursued by a former Toronto city councillor called Tony O'Donohue. I mention this only to be unpleasant (I smirk as I write); our demi-Conservative national daily, The National Post, uncoyly called him, 'a Canadian Catholic of Irish descent'. This lawsuit was the ludicrous culmination to a solitary, two-decade long letter-writing campaign. That had signally failed to convince politicians to try in Parliament here to grapple with how the 1701 Act of Settlement could be meaningfully adjusted without ripping apart the country's core constitutional order. Being clever little democrats, they didn't try, so being entirely representative of the spirit of the age in which he lives, Mr O'Donohue decided that what elected parliamentarians would not for him, he'd try and get the judges to do. You will note my permanent air of grateful wonder, yet I have to say it again: the law was upheld, by a court!
Our man of the hour is Mr Justice Rouleau, who colourfully alluded to a reverion to civil war and domestic strife should the Act be altered. I'm not sure if anywhere in the realm has quite enough spunk for that, but let's just consider the sort of thing the Act of Settlement is shot through with:
All and every person who [shall] hold communion with the see or Church of Rome, or should profess the popish religion, or marry a papist, should be excluded, and are by that Act made for ever incapable to inherit, possess or enjoy the Crown and government of this realm.
Take a copy of our beloved Charter, spit on it, and then there's still some distance to go before you reach the level of affront this sort of thing offers to contemporary Canadian judges. There is, though, no getting away from it, M. Rouleau did his bit to ensure that the Crown of Canada is still entailed to the 'Protestant line, for the happiness of the nation'.
I can do no better than offer you his own superb judgement:
If the courts were free to review and declare inoperative certain parts of the rules of succession, Canada could break symmetry with Great Britain, and could conceivably recognize a different monarch than does Great Britain.In fact, Canada could arguably reanimate the debate regarding the heir to the throne, an argument that was resolved by the Act of Settlement. This would clearly be contrary to settled intention, as demonstrated by our written Constitution, and would see the courts changing rather than protecting our fundamental constitutional structure.
What quaint notions for a judge sitting in a court situated anywhere north of the Rio Grande to be bothered by!
The charmless O'Donohue obviously argued that the Act was 'offensive', and thus contrary to the sacerdotal equality provisions of, to give it it's fuller name, our "Charter of Rights and Freedoms". 'I thought these medieval laws, based on discrimination of religion and race and property and creed, had all melted away', sobbed Tony, 'but, no, there it is'.
An appeal is promised — the fight goes on. (By the by, have you ever noticed how, whenever a court 'settles' something in a liberal direction, that's it, and rhetorical concrete is poured in by the media class? never works that way in reverse, all our defences are provisional, contingent on continued resistance being offered as and when the inevitable liberal assault is renewed). Anyway I shouldn't be bitter — having won for once — I should continue to gloat. 'A lot of changes have happened in the past 300 years', my litigious fellow [sic] countryman observes, and without any discernible regret. For you see, 'it's time we cleaned up our act. It should have been scrapped a long time ago. I know it is going to change sometime, but it is a question of who is going to have the ability to change it'. Ah, that indeed is the question. The quiet people of Canada have not spoken yet. God knows (I jest, lest worried online Canuck secularists take offence!) but that shouldn't be taken to mean anything as dangerously antithetical to radicalism as dumb, negative consent having thereby been granted to the status quo. Oh no, not that, never that; and to explain what silence really means, and why courts should give tongue to it, we'll always I fear have Tony O'Donohues. How often we'll have judges like Mr Rouleau is another question altogether, and much more dperessing to contemplate.
Arnold Hubbard tries and mostly fails to make British undergraduates value English literature. And even though he lives in London, he is not writing The Great Canadian Novel.
Arnold Hubbard, July 4, 2003 08:30 PM