A Mad Tea Party in the Castle of the Constitution
“A law suit is not a tea party.”
“Judicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867. In fact, it is in that preamble, which serves as the grand entrance hall to the castle of the Constitution, that the true source of our commitment to this foundational principle is located.”
“All of this therefore provides a framework in which the guidelines for the exercise of internal sovereignty necessary for the management of Quebec affairs are reaffirmed, planned or established, as the case may be, and are intended to reset the clock after the setback caused by the message conveyed by the federal government to the province, through Bill C-20, as we shall see from what emerges from the analysis of the long preamble of the Act.”
— Madam Justice Claude Dallaire in Henderson c. Procureure générale du Québec 2018 QCCS 1586, at para. 329.3
here was a table set out under Lord Sankey’s Tree in front of Chief Justice Antonio Lamer’s Grand Entrance Hall to the Castle of the Constitution. (You can tell it’s Lord Sankey’s Tree, there’s a little branch grafted on.) Equality Party Leader, Keith Henderson, and constitutional law professor Stephen Allan Scott are having tea at it. Lawyer, Brent Tyler, is fast asleep between the two of them, who are using him as a cushion, resting their elbows on him and talking over his head.
“How very uncomfortable for Tyler,” thought Alice, “but as he’s asleep, I suppose he doesn’t mind.”
The table was a large one, but all three were crowded down at one little corner of it. “No room! No room!” cried Henderson and Scott in unison when they saw Alice coming.
“There’s plenty of room!” said Alice indignantly.
“What have you three done?” she demanded. Then, answering herself, “Why, you’ve partitioned it, haven’t you!” and she sat down in a large armchair at one whole end of it.
“Have a seat,” said Henderson, glowering.
“I am sitting,” said Alice, annoyed at the implied slur on her height.
“Tart?” said Henderson ― (more rudeness, thought Alice) ― as the Equality Party Leader slid a large tray towards her with chips of cardboard on it, and numbers painted on them.
“Those aren’t Tarts,” retorted Alice distastefully, picking up 44 and examining it forwards and backwards.
“Same thing,” said Professor Scott.
“They’re just like Tarts,” said Henderson, “once you get used to them.”
There were other numbers on the tray: 41, 38, 45, 91, 39, 42, and a couple of others with the paint smudged.
“These are amendments,” said Alice in disdain, immediately recognizing Part V of the Constitution Act of 1982 and the federal residual power, all in a jumble. “You can’t swallow an amendment!”
“Oh, we think you can,” said Scott.
“That’s right,” said Henderson, “eat up!”
“But, I don’t want to shrink,” said Alice, who thought she would find the experience very unpleasant of not being able to reach the table. “It wasn’t very civil of you to offer Tarts when all you have is cardboard,” said Alice angrily.
“It wasn’t very civil of you to sit down without being invited,” said Henderson.
“I didn’t know it was your table,” said Alice. “It’s laid for a great many more than three.”
”At this, Professor Scott gave the tray a nudge, a bit too hard, and all the cardboard chips went flying.
For a second, Alice was enveloped in a swirl of numbers, which, to her surprise, suddenly all fell upwards into the sky, twinkling before they vanished.
Alice couldn’t help but clap hands in amazed delight. She had never in her life seen flying amendments.
“Where did they go!” cried Alice.
“Check your feet,” said Henderson, biting his lower lip smugly and mumbling rudely under his breath, “― if you can find them!”
“I heard that!” said Alice, casting a severe glance toward the offending politician. However, she did look down at her feet, first at the left, then at the right, and to her amazement, there they were, just like magic: a whole pile of amendments … but the federal residual power was not among them.
“Something’s missing,” said Alice.
“Of course,” said Scott. “It’s a floor, not a ceiling.”
“But, how did you do it?” insisted Alice.
At this, Brent Tyler’s eyelids fluttered open (he was somnambulating) and he muttered: «… quelques promenades à la Cour suprême.»
“He’s practising his French in a dream,” thought Alice. (If the amendments worked, he would never need it.)
“Riddles and magic, I like that,” said Alice, “and I believe I can guess what that one means!”
“Do you mean that you think you can find out the answer to it?” said the law professor.
“I do, indeed,” said Alice, and began at once to solve Brent Tyler’s riddle.
“Why, promenade is French for ‘a stroll’. And quelques promenades means that someone’s been getting plenty of exercise?”
“Go on,” said Scott.
Alice considered a little, then brightening, she exclaimed, “The fourth!”.
“Fourth what?” said Scott.
“Why, the fourth branch, of course,” said Alice, glancing up at the bough grafted overhead as if she were somehow reminded …”.
“Ah, tree trimming ….” said Henderson. “Is it Christmas already?” Henderson had taken his watch out of his pocket, and was looking at it uneasily, shaking it every now and then, and holding it to his ear.
“What a funny watch,” remarked Alice. It tells the day of the month, but not what o’clock it is.”
“It’s a lawyer’s watch,” said Scott, “we use it for billing. Have you guessed the riddle yet?”
“Of course,” said Alice. “It means the Tarts are gone because of all that partying over at the Fourth Branch. … And now, there’s nothing left for me but a few chips of cardboard? How very impolite! This table was laid for many more than three … but some hog has helped himself to all the refreshments.”
“Wrong,” said Scott, becoming impatient with Alice. “Pogg, not Hogg.”
“I don’t know what you mean,” said Alice.
“That’s the answer to the riddle: Pogg,” said Scott.
“Pogg?” said Alice, “Never heard of it, what does it mean?”
“It means whatever the Fourth Branch wants it to mean,” said Scott.”
“And what is that?” asked Alice cautiously.
“Don’t know!” chipped in Henderson guiltily, “but as the Fourth Branch said it, it must mean something.”
Henderson was eyeing Alice very intently.
“Well, I wish they would say what they mean,” said Alice. “You can’t just invent words as you go along, no one will know what’s going on.”
“That’s the whole point,” leered Henderson.
“Well, what else could it mean, then, if it’s not the Court Party?” said Alice.
“Ask Warren J. Newman,” interrupted Scott. “He’ll tell you what he thinks they meant it to mean.”
“Well, I never,” said Alice. “If it only means whatever they want it to mean, and Warren J. Newman has to guess it for all of us, then, it can’t mean anything. Why don’t they just say what they mean?”
“They mean what they say,” said the law professor. “That’s the same thing you know.”
“Oh, no, it’s not!” said Alice. “They might just as well say that I make the law is the same thing as The law makes me.
“Or, they might just as well say, chipped in Henderson: “that a hole in one is the same thing as one in a hole”.
“Or, they might just as well say,” interposed Scott, “that minority right is the same thing as the right minority!’”
“Do you always say what you mean?” said Henderson, gloomily. He was still fiddling with his watch.
“Always!” said Alice, and then: “What time is it? This party’s gone on long enough without refreshments.”
“Dunno,” said Henderson, dipping his watch in his cup of tea and checking it again.
“That’s no way to tell time,” said Alice. “It’ll stop the works.”
“That’s the whole point,” said Henderson.
Alice felt dreadfully confused. Henderson’s remark seemed to have no sort of meaning in it, and yet it certainly was English. “I don’t quite understand you,” she said, as politely as she could.
His head began to lower as Tyler’s voice trailed away and his left cheek settled into his plate: “It’s always better late than never,” he muttered dreamily.
At this, a Voice From Above startled all but Tyler who was now snoring: “Sometimes late IS never,” it warned.
Scott and Henderson unanimously inquired: Who said that?
All but Tyler craned to look in its direction … nothing was there but a vague shimmer in the hot air over the tea party …
Alice, quizzical, said: Do I know that voice …? (She was living backwards, but didn’t yet know it.)
“Tyler is asleep, again,” said Henderson, ignoring Alice, and he poured a little hot tea upon his nose.
Tyler shook his head impatiently, the drops flying, and said without opening his eyes, « Mais OUI, bien sûr, c’est ça que je voulais dire! »
Alice sighed wearily, “I think you might do something better with the time,” she said, “than waste it asking riddles that have no answers.”
“If you knew Time as well as I do,” said Henderson, “you wouldn’t talk about wasting it. It’s him.”
“I don’t know what you mean,” said Alice.
“Of course you don’t,” said Henderson, expelling a snort. “I dare say you never even spoke to Time.”
“Perhaps not,” Alice replied cautiously, “but I know I have to beat time when I learn music.”
“If you don’t beat time, you’ll face the music,” smirked Henderson.
(How ominous! thought Alice.)
“For instance,” continued Henderson, “suppose it were nine o’clock in the morning, just time for the Judge to enter, and your proceedings weren’t ready. You’d only have to whisper a hint to Time, and round the clock-hand goes in a twinkling! Half-past one, time for recess.”
“Time for a song,” interrupted the law professor: “Do you know it? — ”Twinkle, twinkle, forty-five!
Purpose, pith, and matter fi!
Up above the fourth you fly,
Twinkle, twinkle ― ”
Here, Tyler shook himself, and began singing in his sleep: “Twinkle, twinkle, twinkle, twinkle ― ” and went on so long that they had to pinch him to make him stop.
Alice was very hungry now, she hadn’t even had her breakfast. “When can we hand ’round the refreshments?”
“There are none,” said Scott and Henderson, speaking in unison again. Alice seemed to detect a slight aura of guilt about the two of them.
“No Tarts?” she said, “You really mean it?” more in disbelief that in disappointment.
« Parties! Parties! Parties! » said Tyler, rousing from his dream and just as quickly falling back asleep again, with his mouth open. Scott reached over and snapped Tyler’s lips shut.
“He’s right,” said Alice, let’s get on with the party.
“No, no,” said Scott, he means “Gone! Gone! Gone!”
“Aw,” said Alice, “he’s speaking French again. But what does he mean?”
“He means no Tarts,” said Henderson, “but, of course, that was predictable.”
“What was?” said Alice?
“The outcome,” said the law professor (and Alice thought, a bit too matter-of-factly).
Straightaway, she glanced at the sky in search of a twinkle: but there was none. Hopeful, she looked down at her feet, first at the left, then at the right, but again, nothing. Not even an empty tea-tray.
“I don’t understand,” said Alice, emphatic. “Why would anyone wish to ruin a lovely tea party? You can’t have a real tea party without the Tarts.”
“Well, said Scott,” apparently out of context, “I’d hardly finished the procédure introductive when the Queen jumped up and bawled out, “He’s murdering the time! Off with his head!”
“How savage!” said Alice.
“And ever since that,” went on Scott, mournful, “he won’t do a thing I ask. It’s always recess.”
“How dreadful!” she sympathised. “Is that why there are so many tea-things out here?”
“That’s it,” said Henderson with a sigh. “It’s always tea-time now, and we’ve no time to plead between whiles.”
An idea occurred to Alice: “But can’t you appeal?”
“Tried that,” said Scott, “same problem. That court’s always in recess, too.”
“Then you must keep moving ’round, I suppose?” said Alice, referring to the many unused seats around the table set out under the Tree at the Grand Entrance Hall to the Castle of the Constitution.
“Exactly so,” said Henderson: “as things get used up.”
“But what happens when you come to the beginning again,” Alice ventured to ask.
“Suppose we change the subject,” interrupted Scott, yawning conveniently. “I vote the young lady tell us a story.”
“I’m afraid I don’t know one, said Alice,” alarmed at the proposition.
“Then Tyler shall!” cried Henderson and Scott, once more in unison. “Wake up, Tyler!” and they pinched him on both sides at once, for the sake of Equality.
Brent Tyler slowly opened his eyes. “I wasn’t asleep,” he demurred feebly: “I heard every word you fellows were saying.”
“Then tell us a story,” said the law professor.
“Please do,” begged Alice.
“And be quick about it,” said Henderson, “or you’ll be asleep again before it’s done.”
“Once upon a time in Canada,” Tyler began in a great hurry, “there were three sisters, and their names were Crown, Commons and Senate; and they lived all together at the bottom of a well.”
“Hole,” interrupted Henderson.
“What strange names!” declared Alice, and then, “But what did they live on at the bottom of a well?” for Alice had always taken a keen interest in questions of eating and drinking.”
“They lived on Pepper,” said Tyler, after thinking a minute or two.
“They couldn’t have done that, you know,” said Alice gently. “They’d have been ill.”
“And so they were,” said Tyler; “very ill.”
Alice tried to imagine what such an extraordinary way of living would be like, but it puzzled her too much, and so she went on: “But why did they live at the bottom of a well?”
“Hole,” reminded Henderson: “Well and hole aren’t the same thing, you know. Or else you might as well say that a hole is a well means the same thing as a well is a hole.”
“He has a point,” said Scott.
“Take some more tea,” said Henderson to Alice, somewhat earnestly.
“I’ve had none yet,” replied Alice, exasperated, “so I can’t take more.”
“You mean you can’t take less,” said Henderson.
“Not so,” said Scott, “You have less and less of anything as time goes by.”
“I haven’t had anything, either,” said Alice, determined to make her point, “and I never saw Time go by,” she mused, “but I think I once did see a White Rabbit …” And then, with some resolve, Alice excused herself from her place at the Table.
“This isn’t any fun,” she said. “The magic was nice, but the riddle is inadequate, and of all things, to be serving cardboard chips in place of Tarts.”
“Don’t say goodbye,” said Scott and Henderson, a tad resentful. Tyler had already fallen asleep again, face-down this time, with his nose in the bread and butter plate.”
So off went Alice, in a bit of a huff, toward the green horizon, which apparently was an endless golf course spreading out in all directions.
Alice could see that in the distance, players were already teeing up. Golfers worked up a good appetite, she thought. Maybe there she would find a Tart. Or possibly, even the White Rabbit. After all, there were all those holes about. And she didn’t mean “wells,” either.– 30 –
1 “… a law-suit is not a tea party, and except where there has been a clear and objectionable excess, we should hesitate to put shackles on the traditional scope allowed counsel in his plea to the tribunal of his client’s countrymen. The attempt to divest a trial of any feeling would not only be futile but might defeat its object which is to ascertain the reality of past events.” ― Mr. Justice Ivan Cleveland Rand in In Re Ross v. Lamport, [1956] S.C.R. 366, at pp. 375-376.
2 “Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., [1997] 3 S.C.R. 3, 1997, para. 109 ”
3 The original French: “Tout cela profile donc le canevas dans lequel les balises de l’exercice d’une souveraineté interne nécessaire à la gestion des affaires québécoises sont réaffirmées, prévues ou établies, selon le cas, et a pour objet de remettre les pendules à l’heure après le décalage provoqué par le message transmis par le fédéral au provincial, au moyen de la Loi C-20, comme nous le verrons de ce qui se dégage de l’analyse du long préambule de la Loi.” ― Madame le juge Claude Dallaire, écrivant dans Henderson c. Procureure générale du Québec 2018 QCCS 1586, para 329.
UPDATED: 7 August 2018; 22 May 2019.