The Invisible Crown: The First Principle of Canadian Government

by David E. Smith

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.

Genres: Reference, Politics, History

274 pages, Paperback

First published September 27, 1995

Reviews

[Shane A · Rating 3 out of 5]

Political scientist David E. Smith’s The Invisible Crown: The First Principle of Canadian Government begins by stating that the Crown is “perhaps the least understood” political institution (p. xiii). First published in 1995, Smith’s book seeks to reverse the trend of political scientists and other Canadian scholars not taking seriously the Canadian Crown as component of Canada’s political and constitutional system. Indeed, the premise of Smith’s book is that “the Crown as a concept should be taken seriously in the study of Canadian government” (p. xiv). He goes further – not only does Smith contend that the Crown should be taken seriously by scholars, but he also posits that the Crown is the fundamental “organizing force” of Canada’s politics, administration, federal structure, and law; and that the Crown “exercises a direct and practical impact on the operation of government in Canada” (pp. xiv, 42). In the end, Smith insists that scholars cannot fully understand the Canadian government (or, indeed, the provincial governments—more on that later) without first understanding that the Crown is behind literally every aspect of the Canadian system. Or, to use the words made famous by Walter Bagehot, the Crown’s formal powers showcase that the Crown is both “dignified and efficient” (181, emphasis in original).

A sub-argument that Smith also touches upon throughout his text is that the bifurcation of the Crown in the Canadian context resulted in an “intergovernmental rivalry that marked Canadian federalism” which engendered a unique type of federalism which Smith posits is a part of Canada’s “compound monarchy” divided between the federal and provincial crowns (pp. 29, 173).

To forward the above argument, Smith begins by summarising the origins of Canada’s (then Britain’s at Confederation) Crown and the process of Canadianising it during Canada’s road to autonomy in the late-nineteenth and early-twentieth centuries. His next chapters attempt to scrutinise how the Crown influenced aspects of Canada’s governmental system, especially the executive branch. Indeed, Chapter 4 makes a point to argue that the Crown reinforced an “executive dominance,” within Canada’s system of responsible government, through the Crown’s prerogative “in a multitude of ordinary ways in the conduct of ordinary policy,” such as through royal commissions, special warrants, and copyright (pp. 73, 85). Smith then posits that the administrative arrangements of power originate in the Crown (Chapter 5), that the Canadian federal system begins with the Crown (Chapter 6), and that the Crown is central in Canadian legal shenanigans, such as in jurisdictional disputes between the federal government and the provinces (Chapter 7). Finally, Smith’s final substantive chapter posits that “[n]o institution contributed more to the consolidation and centralization within the regions than did the provincial Crown,” and that Canada is an example of a “compound monarchy” consisting of federal and provincial crowns (pp. 166, 173).

The first remark that must be said is that I emphatically appreciate Smith’s overarching premise that the Crown should be taken seriously as a topic of study in the Canadian literature. Indeed, I hope to continue Smith’s mission in reversing the notion that Canada’s Crown does not matter in the study of this country. That being said, and it pains me to say this, I found that Smith’s approach is unconvincing at times.

Before I politely point to the holes I see in Smith’s work, though, the political scientist does accomplish much in his work. In eight tight chapters, Smith does showcase that the Crown was a key element in Canada’s political and constitutional system. Indeed, the words ‘Crown,’ ‘royal,’ and ‘monarch*,’ ‘Queen,’ and ‘King’ show up all over the place in Canadian political parlance and documents, as Smith rightly points out. Further, he does demonstrate the fact that Canadian politicians of different stripes used the Crown “in the service of some other purpose”—for instance, with Prime Minister King using the Crown in his mission for autonomy, and Prime Minister Pierre Trudeau using the Crown as a symbol of national unity (p. 176). In this and other ways, Smith successfully shows that the Crown should not just be relegated to studies of symbolic importance, and that the practical consequences of the Crown in Canada’s system, such as the powers of governors general and lieutenant governors, the question of reserve powers, and the like, are immense and consequential.

However, Smith’s book also has areas that do not logically help the reader understand the urgency and importance of the Crown’s role in Canada. One area where Smith’s interventions were confusing and/or unconvincing for me was the discussion on executive dominance. For example, in his fourth chapter on the Crown’s federal prerogative influencing everyday life, Smith does not adequately contextualise (or, indeed, explain) how “the gravitational pull of cabinet and Crown holds … elements in check and enforces in order on which cabinet government depends” (82). Further, in his fifth chapter, the author seems to really home in on the notion of executive dominance, but does not convincingly link this dominance to the Crown. While it is true that the cabinet is called the “Queen-in-Council” (or the “King-in-Council), one could easily pull the ‘this is just semantics and mysticism’ card to wash this line of facts away. The section on the RCMP is also very weak in my view.

Indeed, I found that Smith’s conflation of “Crown” with “executive” was unhelpful, especially given that the executive branch of government encompasses differing components: the cabinet, the prime minister or premier, the governor general, and/or the Crown. This conflation makes unconvincing the final chapters about the Crown specifically being important in judicial stuff and leading to a new type of federalism. For example, while I do not dispute the fact that the “growth of judicial review [was] a means of moulding the constitution” and that “the courts contributed to [the accretion of power of the cabinet] and in so doing exerted a determinative influence on the modern Crown in Canada” (p. 134), one could easily argue that such phenomena were the result of the nature of the cabinet itself, as an entity, and not have anything to do with the fact that its power was derived from the Crown. Again, I do not deny that the Crown is the source of sovereignty in Canada or in the provinces—I wholeheartedly agree with this premise. The main issue I have with Smith’s execution here is that his conflation of the Crown with other things (e.g. executive dominance, the cabinet, anything with the word ‘royal’ in front of it) actually seems to undermine his point that the Crown isn’t just about symbolism.

The above being said, reading Smith’s work was still a fruitful and important endeavour for me as a junior scholar of Canadian constitutional and legal history. For instance, Smith adds to the list of Commonwealth literature that showcases that there existed, and exists, pragmatic, on-the-ground aspects of the Crown, such as prerogative powers, appointments of important people, and the like, which merits the attention of scholars such as myself.

In the end, David E. Smith’s The Invisible Crown provides an interesting argument for the serious consideration of the Canadian Crown within the realm of political and constitutional studies. While Smith effectively demonstrates the significant practical consequences of the Crown in Canada's governance, his conflation of the Crown with other governmental entities, such as the executive branch, does raise questions about the clarity of his argument. However, despite these critiques, Smith's work remains an invaluable contribution to my understanding of the Crown in Canadian constitutional and legal history by contextualising the Crown's historical evolution in Canada and highlighting its many pragmatic functions. As scholars of Canada continue to explore the complexities of Canadian governance, Smith's insights very well may serve as a cornerstone for further study vis-à-vis the enduring significance of the Crown in shaping Canada.