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The Crown and the Constitution
Paul Benoit

Dr Paul Benoit, a former university lecturer, civil servant and ministerial aide, is on the Board of the Canadian Royal Heritage Trust, an educational charity dedicated to preserving the more than 500 year history of royal heritage in Canada.

This fall the Queen will be making her twentieth visit to Canada (not including her tour as Princess in October 1951). For half a century, she has personally contributed, beyond measure, to the strengthening of civil society in Canada. When not acting on her own, her representatives in all the capital cities – the Governor General and the Lieutenant Governors – and members of her family have assisted in carrying out the different functions involved in the royal mission. Working jointly and severally, they form a firm that we call the Crown.

Prior to the Queen’s visit, it is fitting that we get a better grasp on the constitutional role of this many-facetted  institution.

Despite the teachings of political scientists John Stewart (a former MP and Senator) and David Smith, many Canadians continue to think and speak of our constitution in the tri-partite terms of a legislature embodied in Parliament; an executive embodied in the Prime Minister and his Cabinet colleagues; and a judiciary embodied in the Courts and Charter.

I propose that we think of our constitution in less legalistic terms, that we approach it from a combined historical and sociological perspective. From this perspective, we ask: what holds Canada together? With so many centrifugal forces at work in today's world, is there still a basis left for our sovereignty? How do our major public institutions contribute to the coherence of civil society? To begin to answer these questions requires an appreciation of our institutional heritage.

Monarchy has played a central role in the integration of society throughout the history of the West. But that role has evolved greatly, particularly in Great Britain as that society grew in complexity. Indeed, since the 17th century, in a continuous process of differentiation, the British Crown has undergone four major transformations.

Sharing Power: The Glorious Revolution of 1688 consolidated the basic framework for the Crown's sharing of power with representatives from the different estates of the realm. The Monarch's power could no longer be exercised absolutely. The liberty of the realm could no longer be left to the King's prerogative. It could only be secured through the political cooperation and consent of peers and burgesses – property-owners small and large.

This settlement in the distribution of power made for a 'mixed' regime – the humanists' ideal – that combined the best of monarchy, aristocracy and democracy. All three were given scope to operate in Parliament; each had its chance to contribute while being checked through the operation of the other two. To be fixated on only one principle – say, the democratic – is to miss the whole point of Parliament.

Today, the Crown continues to be an integral part of Parliament: convoking it, dissolving it, initiating each session with a speech from the throne, and assenting to every bill. On a day-to-day basis, the Crown is symbolically present in the mace that lies in the centre of the House of Commons whenever it is in session and in the designation "Her Majesty's Loyal Opposition" that is attributed to the major opposition party.

Maintaining Authority: The 18th century witnessed another important, though arguably accidental, evolution in the role of the Crown. From a legal and an administrative perspective, the Monarch began to be distinguished from his chief counsellors. Not speaking English, George I did not attend cabinet meetings. This created a vacuum that was filled by Sir Robert Walpole, who became England's first de facto prime minister (1721-42). In the 1780s, William Pitt (the Younger) consolidated the authority of the cabinet and of the premier within the cabinet.

This doctrine of royal infallibility had the advantage of preserving the stability of the state's structure of delegated authority. In return, the Monarch had to choose his chief advisors from among those politicians who had the support of the majority in the House of Commons. This convention ensured that those who were responsible were also accountable – accountable to Parliament and, through Parliament, to the electorate. It provided an effective way of revoking a ministry and its policies without jeopardizing the administration of the state, most of which had to be carried on at arm's length from the vagaries of politics.

The question of who would take responsibility for the administration of public affairs and how they would be made accountable was resolved in Canada at the time of the Baldwin-Lafontaine ministry (from 1848 to 1851) with the support and goodwill of the Governor General, Lord Elgin.

Celebrating in Public: In the wake of the reform movement and the expansion of the franchise in 1832, Prince Albert recognized that the monarchy would have to evolve further if it was to keep up with changing social conditions. The Crown would have to establish a deeper cultural rapport with people, a rapport that would go beyond the sharing of political power with Parliament or the maintenance of independent civil, military and judicial services. The Monarch would have to reinvent the essentially baroque idea of public ceremonial, adapting it to contemporary circumstances.

Just as individual families mark birthdays, weddings, deaths, anniversaries and other extraordinary events, so should the Monarch, in the company of other members of the royal family, celebrate those events that are milestones in the collective life of society. Commemorating such an event in public with an appropriate display of decorum makes the event more impressive and lends a deeper significance to the occasion. It also sets an example of public behaviour to be emulated by others on lesser occasions.

Coinciding with a cultural revival of the Gothic, the British Crown's interest in public ceremonies resulted in pageantry that took on a hallowed aspect, an aspect reinforced by the involvement of the Anglican Church in many of these ceremonies. Benjamin Disraeli is credited with persuading Queen Victoria in the late 1860s to take on this function, a function that achieved its full aesthetic splendour in the Queen's golden and diamond jubilees.

In Canada, the need to celebrate extraordinary achievement resulted in the development of a distinct honours system; most notably, the creation of the Order of Canada in 1967. Encouraging all forms of cultural endeavour, the Canadian Crown awards prizes of excellence every year to architects and artists in the literary, performing, and visual and media arts.

Reaching Out:  At the same time, it became apparent that beautiful ceremonies and the conferral of honours could only go so far. They were pleasing and even inspiring, but that was not the same as involving people at a deep emotional level and giving them an abiding sense of collective purpose. As industrialization and urbanization proceeded apace, more and more people felt alienated from the mainstream of society and the goals set by its elite. The 1930s were particularly bleak in this regard. Basic assumptions about traditional western society were called into question. Socialism and fascism became attractive to many, as each in its own way sought to give meaning and structure to the life of the common man. It was against this larger social background, in the spring of 1939, that the Queen, whose death we have just mourned, brought about intuitively the fourth and final modernization of the Crown.

Tom MacDonnell, in his account of the royal tour across Canada, Daylight upon Magic, describes how the Queen, "in an inspired moment, turned from the red carpet and waiting car and moved instead towards the cheering [veterans]". The Queen had invented the walk-about; against the advice of their courtiers, she and the King then took every opportunity to depart from the formal arrangements and get closer to the cheering throngs that surrounded them. There was something poetic about these emotional encounters: however brief, they were heartfelt and had a profound and lasting impact.

In a country as vast as Canada and with a non-resident monarch, the function of reaching out and forging emotional ties with people from all parts of society is largely carried out by the Governor General and the Lieutenant Governors. Through their extensive travels, participation in community events, visits to schools and hospitals, and support of charitable organizations, the representatives of the Crown acknowledge the many different ways which ordinary Canadians struggle to make their contribution to society.

In conclusion, to appreciate the Queen's contribution to Canadian public life requires that we understand the Crown's involvement in all four dimensions of civil society: the political, the legal, the ceremonial and the poetical. No one dimension is more important than another. The accompanying diagram highlights how the Crown integrates all four dimensions – thus preventing them from taking off in different directions – while recognizing the independent basis of each.

A fitting way for Canadians to show our appreciation to the Queen for all she has done would be to invite her to open the next session of Parliament in October. It would also demonstrate an appreciation for our institutional heritage and a confidence in its ability to continue to serve us into the future.

Canadian Parliamentary Review Cover
Vol 25 no 2

Last Updated: 2020-09-14