Monday, February 1, 2010

The Case of the Serial Proroguer - Part 5

Before the Judicial Committee of the Privy Council, Parliament Square...

A week had passed. I had obtained an expedited Hearing before the Judicial Committee, to be held in camera and ex parte. I had no idea what that meant.

I represented Her Excellency, the Appellant, and The Prime Minister was represented by Lord Goldsmith, an Attorney-General.

It had been a week of feverish preparation, exchange of documents, and close arguments presented to one of the most distinguished judicial bodies in history. The Rhino and Weasel had put its full resources at my disposal. Fortunately, in this day and age, almost all case law and statutes were available on the web. Everything else I needed was at the bar, including the bartender, who as it turned out, was a barrister.

The pith of my argument was that the Canadian executive was challenging the essence of Canada’s constitution, trying to create a rubber stamp Parliament, a tame judiciary, and a police state. My colleague at the bar immediately took the pith out of it.

“I wouldn’t try that if I was you, squire” he advised me in rich upper class tones. “Their Lordships will bring up Alberta v. Canada [1922] 1 A.C. 191, and that peace, order, and good government don’t extend to the exile of Prime Ministers.”

I tried another tack. “What about the War Measures Act?”

He cringed. “No, no, no, squire. First of all, Quebec would revolt. Second, it’s now the ‘Emergencies Act’, and even if you could convince Their Lordships that a ‘public order emergency’ existed in Canada, you’d have to try to get an Order from the Governor in Council without actually having the Prime Minister in Council.”

“What about Martial Law? We did that in 1840 and there didn’t seem to be any problem.”

We talked it over, and it seemed the only chance. I prepared written submissions accordingly.

On the appointed day I paced the anteroom nervously in the company of Lord Goldsmith, who seemed relaxed and confident, having felled a Robert Mugabe-like figure with a single blow despite the impediment of a flipper pie.

After the courtesies, the President of the Court announced its judgment.

“Her Majesty is unable, even by the most assertive use of Reserve Powers, to declare Martial Law in Canada in order to exile the Right Honourable Stephen Harper, Prime Minister of Canada, to St. Helena.

“Her Majesty is likewise unable to grant leave to Her Excellency to construct a moat and fire pit around Rideau Hall, to repulse any putative attacks on her authority by the executive.

“On the other hand Her Majesty wishes to convey her understanding of alarm at any threat to Parliamentary Democracy in Canada, or indeed anywhere where She is Sovereign.

“Further, Her Majesty has Herself experienced the demeanor of some of her Ministers which suggested they might, given half a chance, usurp the power of the Crown. Her Majesty instructs us to inform you that the exile of certain Ministers to St. Helena has attracted her favourable attention in the past. She had not previously considered constructing moats around various of her residences and filling them with Alberta Tar Sands, but she is likewise attracted by this possibility.

“Her Majesty, through this Committee, instructs us to send this message to Her Excellency.

First, the institution of British Parliamentary Democracy is an imperfect ship of state: its design has been haphazard, it leaks, and it has many oddities of construction. Nevertheless, it is seaworthy and has been so for a thousand years. Her Majesty believes it will so continue.

Second, before this very committee was heard the “Persons” case on appeal from Canada, in 1928. In addition to recognizing the rights of women to equal roles in political life, the ruling established the “living tree” principle of constitutional law; that is, that the constitution will grow and adapt with the society it governs.

Third, Her Excellency should know that all good wishes are extended to her, as is Her Majesty’s confidence in the future of Canada’s constitutional democracy.

“Her Excellency’s appeal is therefore dismissed.”

I rose and bowed.

I flung myself from the chamber, flung myself upon the Underground, and flung myself back to Ottawa. I forgot to stop at the Rhino and Weasel, but they forwarded my meager belongings at minimal expense.

To be continued…..