The invisible crown : the first principle of Canadian government

History and practice, not theory and values, propelled constitutional development and gave pre-eminence to politicians, who themselves assumed in Canada almost historic proportions: seven prime ministers governed a total one hundred of 125 years. Such longevity meant that in Ottawa, as opposed to Britain, the Crown's representatives came and went but prime ministers lived on; Macdonald served six, Mackenzie King five, and Trudeau four governors general. Where political ambition is served by such opportunity and where the constitution is as malleable as Canada's has traditionally been, then the stamp of a single individual on its development is potentially very great: Diefenbaker and the Bill of Rights, Mackenzie King and the advance to national status, Trudeau and the Charter. Six of the seven prime ministers were trained in the law (three as clerks). It was here that the constitutional inheritance began, although for those such as Macdonald and Laurier, who entered electoral politics early (as opposed to St Laurent, Trudeau, and Mulroney), an education in parliamentary politics quickly followed. 49 Each man embodied a tradition that saw the common law, Parliament, and the constitution entwined. Later chapters will analyse the relationship of the Crown to the constituent parts of this tradition. In the absence of a codified constitution, the elements and practices that stand in its place are key to understanding government. For this reason the premium placed on political aptitude has usually exceeded that accorded legal skill. It is therefore unfortunate that existing biographies pay little attention to the intellectual moulding of their subjects. All the more so when those persons belong to no governing or established class but emerge from a colonial society that is sparsely populated and divided by language and religion as well as by distance. The behaviour to be emulated was British, but only up to the point where Canadian needs and values impinged. Then adaptation was required to accommodate a pluralist culture and an extravagant geography. Statute not common law was the route of adaptation. Canadian courts were constitutionally obliged to be 'faithful' to the products of English courts, but Canadian legislatures operated under no comparable constraint. 50 From the outset, then, legislatures and legislators were overtly Canadian in manner and concerns. And for this reason: unless inheritance gave way to environment, Canadians were condemned, said Frank Underbill, 'to suffer from literary theory of our constitution.' 51

The Crown is not only Canada’s oldest continuing political institution, it is also its most pervasive, touching the operation of Parliament and the legislatures, the executive, the bureaucracy, the courts, and federalism. However many consider the Crown remote and anachronistic, requiring explanation. There are few studies of the Crown in Canada; the few that exist tend to see the Crown in symbolic terms, such as a bond of national unity. David E. Smith adopts a new perspective on the place of the Crown in Canadian politics - not in the form of the office of governor general nor in the person of the sovereign, but as a structuring principle of government in Canada.

The influence of the Crown, he argues, pervades all aspects of government, be it the legislative or administrative process, the legal system or the conduct of Canadian federalism. Yet, despite this essential place in the constitutional order, its influence remains largely invisible behind the shield of responsible government. In fact, Smith traces Canada’s distinctive form of federalism - with highly autonomous provinces - to the influence of the Crown. Canada, he states, is best understood as a system of compound monarchies.

Based on archival research in Canada, and in Australia, The Invisible Crown assesses the contribution the Crown makes to a powerful executive in a system of parliamentary government. It concludes that the Crown has influenced the development of Canadian politics, and, the strength of that influence is a function of Canada’s unique societal, geographic, and economic conditions.

The Crown is not only Canada?s oldest continuing political institution, it is also its most pervasive, touching the operation of Parliament and the legislatures, the executive, the bureaucracy, the courts, and federalism. However many consider the Crown remote and anachronistic, requiring explanation. There are few studies of the Crown in Canada; the few that exist tend to see the Crown in symbolic terms, such as a bond of national unity. David E. Smith adopts a new perspective on the place of the Crown in Canadian politics - not in the form of the office of governor general nor in the person of the sovereign, but as a structuring principle of government in Canada. The influence of the Crown, he argues, pervades all aspects of government, be it the legislative or administrative process, the legal system or the conduct of Canadian federalism. Yet, despite this essential place in the constitutional order, its influence remains largely invisible behind the shield of responsible government. In fact, Smith traces Canada?s distinctive form of federalism - with highly autonomous provinces - to the influence of the Crown. Canada, he states, is best understood as a system of compound monarchies. Based on archival research in Canada, and in Australia, The Invisible Crown assesses the contribution the Crown makes to a powerful executive in a system of parliamentary government. It concludes that the Crown has influenced the development of Canadian politics, and, the strength of that influence is a function of Canada?s unique societal, geographic, and economic conditions Contents 7 INTRODUCTION 9 1. The Monarchical Idea 13 2. The Crown 32 3. Canadianizing the Crown 50 4. Government of the Day 75 5. The Culture of Administration 98 6. The Crown-in-Parliament 122 7. Law, Judiciary, and the Crown 146 8. Compound Monarchy and Canadian Federalism 168 9. Conclusion 186 NOTES 199 BIBLIOGRAPHY 249 INDEX 273