A CANADIAN CONSTITUTION Part 3: A six-part interview with R. Rogers Smith examining the formation of Canada

The following is part three of a six part interview by George Barr, KING’S Council, with R. Rogers Smith sometime in the mid 1940’s and on “Ligue pour l’Union Federale”, 822 Sherbrooke Est, Mtl. (Acquired from the Ka-Nee-Ka-Neet collection)

Question s by G. H. Barr, King’s Council

Answers by R. Rogers Smith


Mr. Barr: Who appoints these parties to the Imperial Privy Council for Canada and how are they paid?

Mr. Smith: They are appointed by His Majesty and of the 319 members who compose the Imperial Privy Council for the Empire the lowest remuneration that they are eligible to receive is L2,000 per year.


Q: Who are the present occupants of those positions for Canada resident in London?

A: Lord Beaverbrook, Lord Greenwood and Lord (R. B.) Bennett. In the House of Commons of Canada we had the Rt. Hon. W. L. MacKenzie King; in the Senate the Rt. Hon. Arthur (15 minutes of fame) Meighen and Rt. Hon. George Graham. In the supreme court, Sir Lyman P. Duff.


Q: Who of these parties are still functioning?

A: The three in London and the Rt. Hon. MacKenzie King in Canada. The other who are not actually exercising an office in Canada are still members of the Government of Canada by virtue of being members of the Imperial Privy council for Canada, all of whose names are to be found in the parliamentary guide. There would appear to be an anomaly here; for instance, in the case of Arthur Meighen, he is no longer a member of the House of Commons of Senate of Canada but he is still listed as a member of the Imperial privy Council and since no man in Canada can occupy that position unless he is a member of one of these bodies, he is by virtue of the appointment which has never been revoked technically a member of the Government of Canada although not holding any elective position.


Q: Is there not a Canadian Privy Council as well as the Imperial Privy Council for Canada?

A: There is! This council is nominally composed of around 150 members -150 members of whom are summoned and appointed by the governor general and members thereof may be from time to time removed by the governor general. In order to ascertain how many are appointed and how many are removed from time to time, compare the list in 1935 with the present list.


Q: What will that disclose?

A: It would at least disclose that the Duke of Windsor was a member in 1935 and was removed from the Privy Council by Lord Tweedsmuir.


Q: Is it true then that men were appointed to and removed from this important body without reference to any elective authority in Canada?

A: Yes! Although it is the practice for the governor general to summons and appoint the heads of what is commonly known as the “cabinet”. To make myself clearer-suppose that the C. C. F. were elected with a majority in Canada, a number of those-around18-would be summonsed and appointed by the governor general to form a cabinet.

Q: To make it clear, you speak of 18 forming a cabinet. Is the cabinet a separate and distinct body from that called the government, men who are the minister of the crown?

A: A distinction should be drawn between government and parliament. The governor general is the governor of Canada. The House of Commons and the Senate of Canada, and the Privy Council for Canada, as well as the Lieutenant Governors of the Provinces and the Legislatures of the Provinces were to aid and advise the governor general in the government. It may be said that all of these bodies were members of different standing in a kind of “Ladies Aid” for their constituted powers are no greater than the powers that the Ladies Aid are able to exercise as a body of the United Church. House of Commons, being the elected representatives of the people. It should be held in mind that the House of Commons are elected by and only by British subjects. These words “British subject” occur 11 times in the Elections Act. Anybody not admitting to be a British subject can be challenged at the polls.


Q: Can it be said then that the House of Commons is elected not by all the Canadian people because there are Canadians who do not qualify as British subjects, people actually born in Canada? Does not this indicate, Mr. Smith, that there should be something to establish the status of the Canadian citizen in order that he, in that capacity, may vote to elect his own Parliament? Is it not true that on the taking of the census, it has been repeatedly stated, and the enumerators are instructed not to list any person as a Canadian citizen, or one of Canadian nationality because there is no such thing? Is not that true?

A: Yes! Census takers are instructed not to accept the answer Canadian.


Q: So that we have no Canadian citizenship? No Canadian nationality and no Canadian flag?

A: Insofar as Canadian citizenship and Canadian nationality are concerned, you are correct, but we have what may be said to be a Canadian flag, on which was granted in 1625 by Charles I to the only territory in Canada at that time under the British monarch, namely, Nova Scotia, which I have previously explained took in what is not “Gaspe, New Brunswick, and Prince Edward Island, as well as the present Province of Nova Scotia”, and for this reason we cannot say that the Maritimes have no flag, and I think if the colonists in Quebec, after the capitulation of 1763, had stated that they would fly the flag which had been granted to the Maritimes, I cannot conceive of the Imperial authorities having any objection.


THE SENATE: Certain men who are qualified by property and standing in their community may be from time to time summonsed and appointed as Senators by the Governor General. He shall, subject to the provisions of the B. N. A. Act, hold his place in the Senate for life. If a vacancy happens by resignation, death or otherwise, the Governor General shall by summons to a fit and qualified person fill the vacancy and the Governor General may from time to time, by instrument under the Great Seal of Canada, appoint a Senator to be Speaker of the Senate and may remove him and appoint another in his stead.


Q: As part of the House of Commons we have the Government or Cabinet Ministers or Ministers of the Crown, each of whom is given the power to administer the affairs of a certain department. Just what, in brief?. How are they constituted?


A: It should be remembered that in this connection Canada was a Dominion and “a Dominion” is defined by Lord Thring in section 18, para. 3, of the Interpretations Act (Imperial) as follows;

“The expression “Colony” shall mean any of her Majesty’s Dominions (exclusive of the British islands and British India) and where parts of such Dominions are under both a Central Legislature and Local Legislatures, all parts under the Central Legislature shall, for the purpose of this definition, be deemed to be one colony”

so that, in answer to your question, I would say that the Cabinet of the house of Commons, or any members of the House of Commons, have no more power or authority than have the members of any Legislative Assembly of any of the British Colonies. The function of a Legislature of a Colony is to aid and advise the governor, who is the government, and the Cabinet is to administer affairs in any department to which he is appointed by the Governor General. But it cannot be remotely said that either the Legislative Assembly of Canada nor the House of Commons of Canada, are responsible to the Canadian people-they are responsible only to the Governor General.


Q: Am I to take it from what you say that they have no power to make laws? It is recognized by both the House of Commons, the Senate as well as the Legislatures of the Provinces, they cannot enact any measure unless it is assented to by the Governor General or by the Lieutenant Governor of a Legislature-as the case may be. So that while they may introduce legislation and enact laws, such laws do not become effective or, in fact, become law until they receive such assent?

A: You are correct! But I would like to draw to your attention that: “It shall not be lawful for the house of Commons to adopt or pass any vote, resolution, address or Bill for the appropriation of any part of the public revenue, or of any tax or impost, to any purpose that has not been first recommended to that House by message of the Governor General in the session in which such vote, resolution, address, or Bill is proposed”-Section 54 British North America Act.


Q: In common practice, that is expressed something as follows: “all money-bills-must originate with the government”. So that, insofar as the expenditure of public money is concerned, it originates with the Governor General and can only become effective after passing the House and the Senate and the Assent of the Governor General?

A: Correct! –Only the salary of the governor General is the first charge against the consolidated revenues of Canada after the expenses of collection are paid. His salary amounts to $48,666.66 per year and expenses. This is the fact in this regard as given by the Auditor General of Canada.

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