An Introduction from your Humble Blog Host…

Today I’m going to be doing something a bit different. I’ve been doing this blog for a little more than a year, and while the number of readers I’ve had has fluctuated, the overwhelming majority of the comments here have been by a gentleman named Bill.

Bill is an NCO in my Regiment-senior to me-and over the last decade and a half he’s been my immediate boss on an on-again, off-again basis. He’s got a legal background, with emphasis on military law, and has been my advisor (and occasional collaborator) on this blog since the beginning.[1]

He’s been an anti-fan of the novel ever since I first introduced him to it a few years back, and when I suggested that I was going to do this deconstruction, he not only supported and encouraged me, but gave me a fair bit of advice as to how I should present and phrase my arguments. If not for him, this blog would have been laced with far more profanity and genealogical references to Douglas Bland.

So in the last deconstruction post (and in many posts to come), I have been talking about the nature of Canadian Government and how the Governor General stacks up against the Prime Minister in a de jure vs de facto sense. Bill gave some basic background to this post, and then commented at length on the post itself with a lot of good background on the history of Canadian Constitutional law, especially of the King-Byng Affair.

For those of you who aren’t history nerds, the King-Byng affair was one of the key events in Canada’s development as an independent nation within the British Empire (later Commonwealth). To properly understand it, though, you need to go back a couple of centuries to understand the British Parliamentary system and how it influenced the formation of our government. It was something that would have to be discussed at length at some point on this blog, meaning that I was going to have to research it and the surrounding legal traditions. Something I was not looking forward to.

Luckily for me, this kind of stuff is right up Bill’s alley and if you’ve been reading his comments you’ll know he’s not a man to shy away from a long form essay. So without further ado, here’s Bill with his take on the King-Byng affair, and why Douglas Bland is badly misrepresenting history.

***The text of Bill’s essay is exactly as he wrote it, with a few formatting changes to make it fit for WordPress. All images were selected by me, and I’m going to have a few of my own comments to add in periodically, but I’ll indicate which ones are my own.***

-Deconstructor Sgt

 

Beware the phrase “Don’t take any notes”

Gen Bishop’s direction to not take notes should have been a warning flag for any semi-trained staff officer to hit the “voice memos” app on their smartphone and press “record.” Not only does the subsequent speech display the breathtaking contempt of Gen. Bishop for the elected leaders of Canada, it also either displays the shocking level of ignorance of the author as to how the Government of Canada actually operates, or it reveals a more sinister point of view. This short essay will look at how the Canadian government operates in practice, how this came about, and why the point of view espoused by the author is dangerous to the practice of Canadian democracy.

In order to unpack what the General is putting out there we need to have a baseline understanding of how the Canadian government is set out, organized and works. Now that you’ve all gotten the “it isn’t and it doesn’t” out of your system, we can begin. The general outline of how the government is set up is found in the Constitution Act, 1867 (also known as the British North America Act prior to 1982). It sets out the three branches of government – the Executive, Legislative and Judicial. Executive authority (the ability to enforce the rules) is vested with the Crown, either the King or Queen of Canada, or in their absence the Governor General, that legislative authority (the ability to make the rules) lies with House of Commons and the Senate, and that judicial authority (the ability to interpret the rules) lies with the courts. As it happens, there is no mention of Prime Minister, etc., so how did the office come into being and how is it that the part of the Government that seemingly holds all the power end up being answerable to an office that ostensibly has no right to exist?

Figuring this out requires that we travel overseas and back in time to Charles I of England and Scotland and his dispute with Parliament. First thing to note is that England is the source of what we now consider our form of government, and the English form of government can be likened to a tree, meaning that its form is not fixed and that it keeps growing and evolving, based on the environment. In a nutshell, the English monarchy has not been close to an absolute monarchy (all power for every function of government) since John Lackland signed the Magna Carta and had to accept that people in his kingdom (and this number has been expanding to cover different classes of people since) had rights that were independent of the Crown’s largesse and could not be abrogated without due cause.

John vs Magna Carta
That awkward moment when King John Lackland realized he was the only one to show up at the meeting unarmed.

By the time James VI and I came south to pry the Crown of England from Elizabeth’s cold dead hands, this had evolved to the point where the Monarch set policy, etc. but it Parliament had the authority to raise taxes to pay for the implementation of said policies. In other words, Parliament could put the brakes on policies by turning off the flow of money. James, being a canny Scot, had figured this out and was generally able to keep the wheels of government greased (not completely, but enough to avoid everything coming to a halt).

His son Charles was not as canny. He wasn’t able to get Parliament to come up with the money necessary to fund the government (England was at the time the least taxed country in Europe and resented paying taxes) and tensions between him and Parliament on a number of issues ended up in a little dispute called the English Civil War (1642-47). Charles’ inability to get along with his captors ended up with him being executed in 1649. Parliament was now in charge. And the man who had assumed the role of head of Parliament was Oliver Cromwell, and a man less suited to producing a compromise solution to get competing groups of people to achieve a common purpose has rarely been seen in government. Cromwell was a king in all but name, and on that difference refused to accept that the limitations that had previously kept the Kings of England in check applied to him.

Cromwell v Charles
Cromwell vs Charles I.  To be perfectly fair to King John, when both parties brought weapons to this meeting, things went a lot less smoothly.

After Cromwell’s death, Parliament had had all they could take of the “Lord Protector, not King” that they invited Charles I’s son Charles II back into the country to be King. Charlie had figured out that listening to Parliament was the best way to keep living, but eventually he died and without a legitimate male heir the Crown passed to his brother James in 1685.

James II was even less canny than his father….

James proceeded to make his religious affiliation a lot more prominent than his father had done (the Roman Catholic/Protestant split was serious at the time) and it irritated/worried a lot of his subjects. You know all those wacky conspiracy theories whereby all Roman Catholics must obey the Pope both for spiritual matters AND in secular affairs that your weird uncle finds in the dark corners of the internet and fills your inbox with? Now amp those up to 11 and make them mainstream beliefs. Let’s just say that Jimmy wasn’t long for the Crown, and when he announced to Parliament that he wanted to extend civil rights to Catholics that was the last straw. Parliament uninvited James to be King and offered the Crown to William and Mary in 1688. Mary was the daughter of Charles I and she and her Protestant Dutch husband were considered far more acceptable. In any event, what came out of this 50 year period of instability in England resulted in what today is called the doctrine of Parliamentary Supremacy.

James II vs William of Orange
James II vs William of Orange (later William III).  James II didn’t put up much of a fight, but given that a lot of England still remembered the horror of the English Civil War, his hasty departure upon hearing of William’s arrival in England was nevertheless characterized as ‘glorious.’

Parliamentary Supremacy is a supremely cynical and wonderfully British doctrine of government. Distilled to its essence, the Monarch remains as the Head of State and is the source of the authority to wage war, administer the laws, negotiate with other Heads of State, etc., but the Monarch agrees that such power will only be exercised on the advice of his council of ministers, who are generally drawn from Parliament, an elected body with the authority independent of the Crown to make the laws. The head of this council is referred to as the Prime Minister (PM). As part of the Royal Coronation Oath taken on June 2, 1953 by the current incumbent is that Her Majesty solemnly swore and promised:

“to govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa, Pakistan, and Ceylon, and of your Possessions and the other Territories to any of them belonging or pertaining, according to their respective laws and customs”[2]

Which means that, if HMTQ wishes to keep her Crown and all the perks that go with it, she has promised that she will abide by the laws and customs of the territories that she rules. In Canada, at least since the Durham Report, this has meant that the locally elected politicians are the ones setting local policies and laws.

The Durham Report was written by a progressive (for the time) politician, who had prepared the report as a means of preventing the Rebellions of 1837-38 from happening again.[3] Although two separate events, they shared a common element – the rebellions were an assertion by the majority of citizens that their voices needed to be heard in government and the Colonial Governor could not properly do so with an appointed council consisting solely of the wealthy elite. This is the structure that was used when the Constitution was drafted – a mirror of the structure used in Great Britain at the time, with modifications to suit the Canadian reality (ie. with no landed aristocracy, the House of Lords became the Senate, etc) and the system chugged along because people knew how it was supposed to work, and dammit, that’s how it will work.

And so it did up until, in the immortal words of Pte. Baldrick, “Some bloke named Archie Duke shot an ostrich…” and the Great War started.

blackader
“I mean, who would have noticed another madman around here?”  Capt Blackadder (Rowan Atkinson, second from right) shares some final thoughts with Pte Baldrick (Tony Robinson, right).  The ending of the series was surprisingly dark, so I’m not doing a snarky vs joke here.

The Great War was a bit of a turning point for Canadian constitutional government. As one of the main sources of manpower, raw materials and finished goods Great Britain’s relationship with the Dominions changed from that of clearly subordinate nations in the British Empire to near equal partners in the Commonwealth of Nations by the end of the conflict.[4] The King/Byng Affair is what happened when the Monarch’s representative didn’t get the memo that the Dominion Parliament had the same powers and privileges as the British Parliament and that he didn’t get to decide what’s best for the troublesome colonials.

It started with the general election of October 1925. While the Conservative party won the most seats of any party (116 of 245 seats), it fell short of having a majority of the seats on their own. The Liberal Party under William Lyon MacKenzie-King (with 101 seats) was able to form a coalition government with various Members of Parliament (MP) of the Progressives, Labour and Independent Parties. By controlling the largest total block of votes, he was able to convince the Governor General (GG) Viscount Julien Byng that he should form the government. So far, so good. The coalition lasts until June 1926 when the government fails to pass a bill in the House of Commons.

Traditionally, when a bill fails to pass the government is expected to call an election as they have “lost the support of the House” and King did that and formally asked the GG to dissolve parliament and call for elections. Byng didn’t.

King-Byng
It’s time for our title match! King vs Byng! Aside from the delicious fact that the ‘king’ in this particular battle is actually the democratic populist descended from a revolutionary, Canada decided to be even more contrary by settling this debate with a particularly acrimonious election rather than resorting to violence, as is the British tradition.

Instead the GG called on the Conservatives to form the government. They didn’t last until September. The election was excitingly fought over allegations by the Conservatives that the Liberals were corrupt and incompetent, while the Liberals were arguing that the GG had overstepped his authority and not acted on the advice of government to dissolve Parliament back in June. In the end, the Liberals won a majority with 128 seats. And the issue of whether or not the GG has to act on the advice of the Dominion government in the same manner that the Monarch acts only on the advice of the British cabinet was resolved in Canada.[5]

King-Byng winner
Yes, I’m aware of the irony of invoking MacKenzie-King as the Canadian nationalist using a pic where he’s got Union Jacks on his car.

Less than a decade later the entire Commonwealth received another lesson in the principle of Parliamentary Supremacy when Edward VIII wanted to marry Wallis Simpson. English law required Edward, as head of the Church of England, to be in good standing with the Church. Because Ms. Simpson’s first divorce was not for grounds that the CofE considered acceptable, if the King went through with the marriage, he was open to being challenged as unsuitable for the Crown on the grounds of being in a bigamous relationship. Edward wanted to get married, but his government in the UK and in the Dominions threatened to not recognize him as king if he did. Ultimately, Edward abdicated and his brother George assumed the throne. What happened to her uncle is a lesson that has apparently been learned by our present Queen, as she has never publicly gone against the advice of her advisors.

Now, moving onto why the fictional General Bishop’s interpretation of who wears the pants in the Parliament of Canada/Governor General of Canada/Monarch of Canada is both wrong and dangerous.

Bland is engaging what is called “legal literalism” in his interpretation of the Constitution, the relationship between the Monarch and Parliament and to whom CAF members make their oath on enrolment. Legal literalism is a doctrine that requires that a law be enforced exactly as written, without regard for any external factors, except perhaps the original intent of the legislators who enacted it.

If you need an example, look south and listen to the debate in the US over gun control – someone will bring up that the second amendment of the US Constitution states that the right to keep and bear arms “shall not be infringed” and treats that as the end of the debate, because “that’s the way the Founders wrote it”. However, Canadian jurisprudence does not adhere to this way of looking at the law when it comes to constitutional questions.

Generally, Canada takes a more flexible view of legislative interpretation, commonly referred to as the “living tree” approach. Outside of Quebec’s Civil Code, Canadian law is derived from the common law of England. This refers to the mix of legislation and judge made rulings that govern what is a crime, what is civil wrong, etc. that was present in England at the time of the colonial legislature getting its authority. It is a system that relies equally on precedent (so that matters with similar fact situations get similar results) and various legal principles to allow judges to deviate from precedent if there are sufficiently different circumstances from previous cases, or if this is something completely new.[6]

This principle also means that penalties assessed by the court tend to be in line with each other – in other words if two first time offenders steal money from a bank machine, then they should both receive similar sentences if they are found guilty, rather than say one offender getting off with a stern talking to, while the other is a guest of Her Majesty for an extended number of years. This method interpreting the law means that courts are able to give a measure of certainty to society in how legal matters will be dealt with, while remaining flexible to accommodate changes in society. It also means that we rely fairly heavily on tradition as a means of interpretation.

General Bishop’s interpretation of the National Defence Act, the Constitution and other laws and treaties that will appear later in this less overtly racist copy of The Turner Diaries is definitely in the “legal literalist” camp. He’s reminding his staff that legally they don’t owe allegiance to the Prime Minister, they owe it to the Queen who is represented by the GG[7] and since Gen. Bishop disagrees with the PM, they will do what the CDS thinks is appropriate and get their approval from the GG. This is the legal equivalent of “Mom won’t like this, let’s get permission from Dad.” And he’s forgetting that neither the Queen or the GG act on their own.

With respect to the appointment of the CDS the National Defence Act says:

“18 (1) The Governor in Council may appoint an officer to be the Chief of the Defence Staff, who shall hold such rank as the Governor in Council may prescribe and who shall, subject to the regulations and under the direction of the Minister, be charged with the control and administration of the Canadian Force.”

What Bishop/Bland is doing is forgetting the “in Council” part of the title Governor in Council. The council referred to is the Privy Council, which is traditionally Cabinet (ie. those elected officials that Gen. Bishop holds in contempt) and other experts to advise the GG. A GG not acting in accordance with the advice from government is either being advised differently by the Privy Council (which means that those same Cabinet ministers are saying one thing in Government and another to the GG), or has just decided to duplicate Viscount Byng. It should be noted that Viscount Byng was recalled after swearing in King’s government after the September 1926 election.

In other words, while the law as written may permit several courses of action, tradition and precedent are quite constrictive and serve to prevent all but one course.

As I read it, Gen. Bishop is calling for mutiny, in that he is advocating that the CAF not obey the lawful authority (ie. the elected officials of Parliament), and is hoping that the GG will “go rogue” and act without consulting his Privy Council consisting of said elected officials that the General wants to ignore. What the General is apparently hoping for is that, at the end of the scenario that he will be the saviour of the country for acting decisively, despite acting without legal authority to save the country from those dastardly redskins”, and his actions being completely outside of the traditional application of the law. He’s staging a military coup and hoping that the GG goes along with it.

Were such a thing to actually be contemplated, one would hope that in the privacy of his office that the CAF CWO, or one of those staff minions tells the General that he’s stepped over the line, that his actions are illegal, against all Canadian military tradition and precedent and that it’s not too late to counter the direction as nothing has happened yet.

And as we read, we will be very disappointed.

No one disagrees, no one objects to the highest military officer deciding to do an end run around the elected officials that appointed him to his position, that have exercised control over the CAF since 1867 and who have given him vague, but understandable direction on his next course of action. Everyone just decides, “He’s the Bosstm, do what he says.” It is a complete abdication of the duty of these officers to provide sound advice to their superior on the implications of his proposed course of action. In the same way that they would be advising him of the risks of a proposed military course of action, they should also be advising him that his plan to ignore the PM and to take his instructions from the GG is wrong. Even if the staff officers won’t the JAG present damn well should. Instead, we get yet another example of the Great Man trope that the author loves. And instead of showing a daring leader, not afraid to break the rules to do the right thing in an unconventional way, what we’re seeing is a moral coward afraid to do his crimes openly and trying to conceal his intent.

Not one of General Bishop’s advisors are reminding him of the CAF Code of Ethics. So I will. The Code is fairly short:

  1. Respect the dignity of all persons.
  2. Serve Canada before self.
  3. Obey and Support the lawful authority.

And being short and pithy there is of course some exposition on what is expected in order to follow the Code.

Although this entire book treats all First Nations persons with all the contempt due to traitors, I’m going to ignore #1 at this time. Gen. Bishop is very clearly not serving Canada before self – he’s not taking steps to actually protect national security assets instead he’s letting it happen and positioning elements to carry out counter-attacks so the CAF can save the day; he’s not liaising with the Quebec security officials, and he’s looking to thwart the PM. The last one also comes under a violation of the third point, in addition to the basic idea that he’s issuing orders to ignore the elected officials in favour what he believes to be the official who will give him the direction (or at least the after the fact approval) he wants. By his action of telling people to take no notes while he issuing what should be clearly illegal orders he’s turning all the officers present into accomplices.

I’d say it’s going to get worse before it gets better, but it’s not going to get better.

_______________________________

[1] So if anyone out there was wondering if I had permission from my chain of command to do this blog, the answer is yes. Yes I do. -DS

[2] This is especially vital. In the last post of the deconstruction, Gen Bishop made a huge deal over the exact wording of the oath he took: To the Queen and not to the Prime Minister. This gotcha moment gets turned on its head by examining the text of Elizabeth II’s own oath to govern her subjects according to their customs and laws.  -DS

[3] One things that’s worth noting: The Upper Canada Rebellion of 1838 – which was brought to an abrupt end with a sharp volley of musketry and the burning of the tavern where the rebels had organized – was led by a young firebrand by the name of William Lyon McKenzie, the grandfather of Prime Minister William Lyon McKenzie-King.  -DS

[4] This is clearly demonstrated by the signatures of the Dominion representatives on the various peace treaties, whereas the Declaration of war was made by the British Parliament on behalf of the entire Empire.  -Bill

[5] It can’t be stressed enough just how much Byng was a hero to the Canadian people. This wasn’t even a decade after Vimy Ridge, and at this point somewhere between five to eight percent of the total population was a veteran. While it’s arguable that Sir Arthur Currie (the General who would take over from Byng in command of the Canadian Corps through the end of the War) was a superior commander (and a Canadian-born militia officer at that), Byng was the one with charisma and style. -DS

[6] For instance, when email and computers were new the courts had to decide how to deal with threats and slanderous statements made online – was this akin to sending a private letter to someone, was it equivalent to the spoken word (since it could be taken down easily) or was it more like publishing something in a newspaper? -Bill

[7] The oath/solemn affirmation to be taken on enrolment is:

“I ……… (full name), do swear (or for a solemn affirmation, “solemnly affirm”) that I will be faithful and bear true allegiance to Her Majesty, Queen Elizabeth the Second, Queen of Canada, Her heirs and successors according to law. So help me God.”

The words “So help me God” shall be omitted if a solemn affirmation is taken. -Bill

 

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