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“The Fourth Branch” |
n this page, I will endeavour to unlock for the reader the delightful or entertaining concepts that can be encountered in Alice’s Adventures in Referendumland.
“The Fourth Branch”
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“The Fourth Branch” is an unconstitutional fourth branch of government mistakenly and crudely grafted upon the lawful Constitution of 1867, the British North America Act, by the Dominion Parliament of Canada in 1875. The Parliament was attempting to pass the very first Supreme Court Act.
At the same time, the Parliament tried to create a reference or advisory jurisdiction for the judges of the new Supreme Court, to help the government sort out the Division of Powers between the federal level and the Provinces.
The addition of the non-judicial advisory function to the judicial Supreme Court Act produced a hybrid jurisdiction, more fish than fowl, a fourth branch of government resurrecting the old Star Chamber abolished in 1641 under King Charles I.1
Justice Minister Télésphore Fournier announced in Hansard in 1875 that everyone knew the provision was unconstitutional (it interfered with the powers of the Provinces).
At page 206 in Hansard, Fournier said:
“No one doubted, however, that under the constitution it was not in the power of this Parliament to give jurisdiction to such a court to try constitutional questions. As a matter of fact, the only power which could be conferred upon the court properly was to try appeals from the decisions of courts of original jurisdiction.”2
However, a further mistake was made of presuming that an advisory touching Provincial powers could be legalized by the consent to a reference of the Province or Provinces affected.
At pages 206 and 207 in Hansard, Fournier said:
“Acknowledging his inability then to prepare a clause which could constitutionally confer the power of trying such cases [the putting of questions to the court by the federal government] upon the court directly he had resorted to the expedient of providing that, “by the consent of the Provincial Governments concerned, decisions given by the Supreme Court would have their effect in the cases mentioned as fitted for reference to it. 3
But, a Province cannot legalize an unconstitutional act by consenting to it. The advisory jurisdiction was void in 1875; it remains void in our era.
The participants in these early days of Confederation must be forgiven, because the British Constitution of 1867 on which the Canadian Constitution is almost totally modelled is unitary. But the Founding Fathers had to create a quasi-federal system to give the various provinces local control over matters important to them, in order to maintain the distinct culture of each colony joining the Union.
The Fathers were in a quandary, and mistakenly created an unconstitutional means (the advisories) to try to help them decide whether passing one law or another would interfere with Provincial powers. Ironically, they violently interfered with Provincial powers by attempting to pass this measure. I say “attempting”, because the measure (the reference jurisdiction) is void.
Moreover, Lord Loreburn, on behalf of the Judicial Committee of the Privy Council in London in 1912, made it clear that by giving opinions in this way, the judges of the Supreme Court of Canada would not be acting judicially at all. Their decisions would have no legal effect; their answers are not judgments or rulings such as are binding on the parties to a case. In other words, they are not enforceable as judgments are. Lord Loreburn said:
“But the answers are only advisory and will have no more effect than the opinions of the law officers.” 3
On the one hand, Lord Loreburn did not go so far as to admit that the Dominion Parliament did not have the power to pass the reference function as a provision of the Act creating the Supreme Court of Canada in 1875. That would probably have caused embarrassment, as many references had already been conducted.
The embarrassment would have been shared by the Judicial Committee of the Privy Council, which had frequently heard appeals from such opinions, without the authority of the British law books.
Clearly, Justice Minister Fournier’s admission in 1875 that the Dominion Parliament had no power to confer advisory powers on the courts was not mentioned in 1912, nor in the original Supreme Court reference on the matter in 1910 that came before the Privy Council on appeal.
It was certainly not mentioned in the 1998 Quebec secession opinion, where the Supreme Court was asked not only to “rule” on the “ability” (euphemism for “power”) of a province to secede (“unilaterally”: a trick question), but also to pontificate on the legality of its own advisory function in the same context. The Supreme Court — better called the “Section 53 Board” after the relevant modern opinion provision in the Supreme Court Act, of course found its unconstitutional power constitutional. It then issued an opinion requiring the destruction of the country.
However, Lord Loreburn clearly stated that the judges of the Supreme Court of Canada were not judges when they answered questions put by the federal government. They were “law officers” giving non-binding opinions.
Sir John A. Macdonald warned against the excessive and abusive use of advisories. In 1889, in his private correspondence, he said:
“I have made a note on the margin on the 10th page, merely for the purpose of calling your attention to the grave danger of the practice of summary application for advice to the Supreme Court being resorted to. It would quickly grow, and a Dominion ministry, careless or ignorant of constitutional principles, might on every question of public interest, for popularity or some sinister purpose, freely use the power of reference. A Mercier government would leave every / question to the Supreme Court, if it thought the courts below were adverse to its wishes. And it would be an inducement to pack the Supreme Court with its partisans, imitating in that respect the government of the United States.
The courts below would gradually be ousted of their jurisdiction, and a new Star Chamber formed. I don’t think this at all an imaginary danger.” 5Lord Loreburn, too, urged caution in 1912 when he said:
“No one who has experience of judicial duties can doubt that, if an Act of this kind were abused, manifold evils might follow …” 5
Decades of resistance followed the implementation of references, as judge after judge of the Supreme Court of Canada dissented, refusing to answer questions in the form of a non-judicial advisory. They often correctly complained that by giving an opinion on a matter that might be before the lower courts, or might come before any of the courts, including the Supreme Court, they would prejudice an impartial ruling on that matter before those courts.
Eventually, however, the present lost touch with the past, and Sir John A. Macdonald’s concerns, and the concerns of Lord Chancellor Lord Loreburn of the Judicial Committee of the Privy Council in England, are shown to be fully warranted.
Corrupt governments have used the unconstitutional advisory function to fool the public into believing that the law has been established by “advisory opinions” as if they were judicial decisions, which they are not. The public has been deceived again and again into believing that it must abide by these opinions, which are not “judicial pronouncements” of constitutional law at all.
Two of the most damaging advisories for Canada are the Quebec secession reference of 1996-1998 and the series of four (4) patriation references of 1981, in which three provincial court of appeal advisories for Quebec, Manitoba and Newfoundland were “appealed” to the Supreme Court of Canada sitting in its unconstitutional advisory role.
In both cases, the governments of Pierre Trudeau and Jean Chrétien heralded the answers of the Supreme Court of Canada as judicial decisions to be obeyed, with the added implication that because they came from the highest court in the land, they were final.
Why was it unconstitutional to add the advisory jurisdiction to the first Supreme Corut Act in 1875? Because the power to create a general court of appeal from all jurisdictions in Canada, both federal and provincial, is limited by Section 101 of the BNA Act as a strict exception to the general rule that the central Parliament may not interfere with provincial powers. A Supreme Court for all of Canada would have to adjudicate whether a provincial government was within its powers in passing an Act. That prerogative belongs to the Section 96 courts of the Provinces. Therefore, an appeal from the highest court of a Province to the Supreme Court of Canada would be dealing with a matter normally in the hands of the Section 96 court of the Province.
The Dominion Parliament is not authorized by Section 101 of the BNA Act, 1867, to create anything but a general court of appeal to do that. It is not within the powers of the Parliament to create a non-judicial advisory or reference function to also deal with the division of powers between the federal level and the Provinces. The general court of appeal is an exception. No other exception is made at Section 101.
Section 101 says:
“The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional courts for the better Administration of the Laws of Canada.”
Set off in a provision all its own, separated from part VII, the Judicature Acts, to underscore the exception, the power to create the general court of appeal (a Supreme Court for Canada) is limited to creating a court of appeal for the country, and also to creating federal courts to deal with the “laws of Canada”, meaning laws of the federal Parliament under Section 91 of the British North America Act of 1867.
There is no provision at Section 101 for creating anything else, for example a non-judicial advisory jurisdiction by which the judges of the new Supreme Court of Canada would act as “law officers” of the Crown, a non-judicial office. By adding the advisory function to the first Supreme Court Act, the Dominion Parliament created something entirely new, not foreseen or authorized by Section 101: a hybrid jurisdiction blending non-judicial and judicial functions, a kind of “political” court.
Constitutional Cat, in Alice’s Adventures in Referendumland, is almost always sitting on the fourth branch, keeping an eye on it, because sooner or later, something will have to be done about it. And the only one capable of doing it will be the Constitutional Cat.
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1 The Star Chamber originated in England as a separate court under the king used to try people too powerful to be brought before oridinary common law courts. The jurisdiction included forgery, perjury, riots, libel and conspiracy. King Charles I used the Star Chamber to crush opposition to his policies, and in 1641 the Long Parliament abolished the court for abuses of power. See “Star Chamber” by Martin Gruberg in The First Amendment Encyclopedia.
2 Justice Minister Télésphore Fournier, Committee Stage of the 1875 Bill for the Establishment of the Supreme Court of Canada, Hansard, p. 286.
3 Justice Minister Télésphore Fournier, Committee Stage of the 1875 Bill for the Establishment of the Supreme Court of Canada, Hansard, pp. 286-287.
4 Lord Loreburn delivering the judgment of the Judicial Committee of the Privy Council in Re References by Governor General in Council (1910), 43 S.C.R. 536 [1912] A.C. 571 and remarking on the advisory of reference function conferred upon the judges of the Supreme Court of Canada in the Supreme Court Act of 1875, 1891, and R.S.C. 1906, c. 139, s. 60.
5 Letter from Sir John Macdonald to Sir John Thompson, Les Rochers, St. Patrick, July 24th, 1889. Headed “Private”. Collected in (subtitle) Selections from the Correspondence of the Right Honourable Sir John Alexander Macdonald, G.C.B., First Prime Minister of the Dominion of Canada made by his literary executor, Sir Joseph Pope. Garden City, N.Y., and Toronto. Doubleday, Page & Company. 1921, pages 452 and 453.
6 Lord Chancellor, Lord Loreburn delivering the opinion of the Privy Council in Ontario (Attorney General) v. Canada (Attorney-General), [1912] A.C. 571, p. 589.
“The Supreme Fish”
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“… Chantal Hébert in La Presse described as emanating from the suspended animation of the ‘nine mute carps’ on the bench.”
“The Egg”
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One egg alone is Canada, but with a difference. Two eggs is the nation of Quebec separated from the nation of “the rest of Canada”. The difference is that Canada, which appears as a single egg in Referendumland, is a doppelgänger, a ghostly double of the real thing that haunts its counterpart.
The doppelgänger has characteristics that are not those of the real Canada. The real Canada is unitary and cannot be “broken”. In Gulliver’s Travels in Lilliput, the inhabitants fight over how to break an egg, by the pointed end or the round end. In Referendumland, the pointed end is a “unilateral declaration of independence”; the round end is a fraudulent “constitutional amendment”.
The “Canada” doppelgänger is made of bogus laws and procedures and advisory opinions, promoted by newspapers and media, and it can be broken by “negotiations”, the basic factor of division being two.
The single Egg in Referendumland is thus a fraudulent substitute for the real and indivisible Canada. This is why Alice cannot catch up to the Egg in the bar scene, and why it disappears through the ceiling. This counterfeit Egg is an illusion concocted by the false laws and devious maneuvers of federal and provincial usurpers who have hijacked the executives.
The Egg in Referendumland is a pretended Canada invented to deceive Canadians into believing it is genuine, so that they will allow those agents of world government to illegally destroy the country.
Alice then meets the Egg on the Inclined Plane, where his sinister character is more apparent: childish, moody, complaining, bawling, and with a decidedly split personality.
Finally, on the Inclined Plane, Canada’s Egg impostor is coloured by a courthouse personality, the Honourable David Stratas. The sinister StratasFear “makes the rules here.” In real life, Justice Stratas headed the Rules Committee of the Federal Court of Canada in adopting “proportionality” as a fundamental principle of federal law.
In addition to being irrelevant to actual Canadian law, proportionality has a dark side. It is linked to the Honourable Yves-Marie Morissette, a judge of the Quebec Court of Appeal. As a McGill law professor, Morissette laid the groundwork with proportionality for importing the Soviet system of dissent control, psychiatric hospitals and the forced administration of haloperidol into Canada. Morissette hoped to begin the plan with pro se litigants who exercise their legal personality more fully than Mr. Morissette might consider appropriate.
“Twinkle twinkle”
Constitutionally, that would be correct. Confederation would be swept out to sea. The nation-state hated by the Communists would end. The world government awaited by the Communists would begin.
In Referendumland, the storm is always forecast by twinkling. The twinkling represents any aspect of the storm, whether lightning on the horizon, or the black “pall of pepper” that showers down after ball 91 has been sunk on The Final Hole.
“A black rain of pepper came thundering down, darkening everything. Oddly, ominously, the pepper itself twinkled as it fell, the way snow does at night under a street light. But this dark falling substance was unlike any rain or snow that Alice ever saw.”
Note that pepper is also found in Lewis Carroll’s Alice, but in Referendumland, it represents the dismemberment of Canada by the storm planned to sweep away the country by “secession”.
In Referendumland, three sisters live at the bottom of a hole. Their names are Crown, Commons and Senate. They form the Parliament and they live on “pepper”. In other words, they live on borrowed time, waiting for the Storm that will flood all the holes in Referendumland with pepper, annihilating Canada. The Green Queen, the sworn enemy of Confederation, has turned the country into a golf ground where The Queen’s Team and The People’s Team wield their beavers in a bid to destroy the country.
“Volume 41”
lice falls asleep while reading Hansard on the drafting of Pierre Trudeau’s Charter of Rights and Freedoms of 1982. Alice doesn’t realize that the Charter is a coup d’État, not a constitutional amendment. When Alice wakes up from her voyage to Referendumland, she finds that the Charter is gone and the world has changed. Confederation has been saved, and all the while she has been dreaming.
Threes in Referendumland
any things happen in threes in Referendumland. Three represents the Parliament, composed of Crown, Commons and Senate.
“At that very instant, the clock in the Parliament tower began ticking backwards: Back! Back! Back!, but Alice hardly noticed, so intent she was on the fleeing rabbit.”
Or again:
Down! Down! Down! poured the shower of pepper and in its dark pall everything began to vanish: first the golf carts, then the green, and then all the holes filled up with pepper, leaving a black constant sheen over the vast flat expanse extending every way in the distance.
The recurrence of three in Referendumland is a reminder to the reader that the Parliament of Canada is the real target of the “secession” movement.
… To be continued …
– 30 –
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UPDATED: 9 September 2022. 15 September 2022