The Evolving Canadian Crown ed. by Jennifer Smith, D. Michael Jackson (review)

This engaging volume offers some intriguing and sometimes provocative insights into the role of the Crown in Canada and beyond. D. Michael Jackson and former lieutenant governor of Saskatchewan Lynda M. Haverstock argue persuasively that the provincial dimension of the Crown has been too often ignored, and point to the historical trend that has transformed the original role of provincial lieutenant governors as federal agents overseeing provincial affairs. They see in the “revival” of the provincial Crown since the 1970s an encouraging sign of evolution toward “true federalism” (p. 27).

Christopher McCreery argues in his chapter on the 1947 Letters Patent that the term “transferred,” sometimes used to describe the effect of the 1947 Letters Patent on certain Crown powers, is inaccurate; “delegated” is to be preferred (p. 32). While “transferred the exercise of such powers” would not be wrong, it is admittedly better to opt for greater precision. Oddly, nowhere does McCreery provide a citation for any version of the Letters Patent, although he quotes from what is presumably the 1947 version. Readers are sometimes at a loss to know exactly what material McCreery has consulted; the list of references at the end is thin and the notations are cryptic. McCreery incorrectly maintains that the Letters Patent and Commission were originally two distinct documents, but does not cite the documents he has consulted to lead him to this conclusion. Mc-Creery unconvincingly maintains that successive governors general have worked to “marginalize the role of the Sovereign via extra-constitutional means” (p. 33). He asserts that the Queen was reluctant to delegate the task of signing letters of credence for Canadian diplomats, but does not offer any concrete evidence to support the claim (pp. 46-47). In a later chapter, Jacques Monet finds fears of covert republicanism to be “groundless,” with the powers of the “compound” Crown “exercised by different people placed over different jurisdictions” (p. 207). With reference to McCreery’s focus, the more fundamental point is that the Letters Patent, in common with many Canadian constitutional documents, are not an exact guide to actual practices. Evolved convention can deviate from written rules. The Crown, whether represented by the person of the Queen, the governor general, or the provincial lieutenant governors, is a flexible and robust institution. A sneering dismissal of the representatives of the Crown as “little more than ceremonial bureaucrats” (p. 33) without the person of the sovereign is hardly the way to enhance its status.

David E. Smith considers whether the Crown “sustain[s]…democracy,” as his chapter title implies. He notes that the Canadian system of compound monarchies means that the Crown may be said to sustain federalism. Smith observes that the concept of democracy does not fit well with the conventions of constitutional monarchy: “Democracy is about counting while constitutional monarchy is about weighing” (p. 67). The potential exercise of discretion by an impartial Crown is one of the core components of responsible government. Circumstances have made the governors more visible of late, and Smith speculates that popular distrust of elected politicians may promote the seemingly paradoxical conviction that the non-partisan, unelected governor is a necessary guardian of democracy.

Patrick J. Monahan proposes that a non-binding document modelled on the 2008 New Zealand Cabinet Manual be produced in Canada to articulate some understood conventions. Professor Monahan sensibly approves of Michaëlle Jean’s 2008 grant of a prorogation to Stephen Harper, but speculates that Harper would have refused to recognize the legitimacy of the alternative coalition, “and thus it was unlikely that he would have simply stepped aside and advised the governor general to call upon Mr. Dion to form a government” (p. 79). Monahan concludes that “faced with these alternatives … granting the prime minister’s request was far preferable to refusing it” (p. 80). But it should be noted that it would not have been...