Reserving Royal Assent – The Story of John C. Bowen
Notwithstanding Canada’s governmental construction as a constitutional monarchy, finding one of the Queen’s representatives making headlines is an incredibly rare circumstance. No doubt you heard the comments emanating from Alberta’s Lieutenant Governor Salma Lakhani on the subject of UCP leadership candidate Danielle Smith’s proposed Alberta Sovereignty Act which has found itself at the centre of much debate and discourse.
When Lakhani was asked about the proposal during an Alberta Day celebration, she responded to reporters by saying “we will try and cross that bridge when we get to it, and we will get the appropriate advice that we need as to whether we can sign, whether it's against our Constitution.” Her comments sparked polarized responses from both political circles and the general public as it is incredibly unconventional for a Lieutenant Governor to publicly discuss a bill before it is passed in the Legislature, let alone before it is even tabled.
Regardless of which thought camp you fall into, an indisputable fact of our democracy is that the Lieutenant Governor (Governor General at the federal level) does retain the authority to reserve Royal Assent – the final step required for a piece of legislation to become law. This is entrenched in the Canadian Constitution through what is known as the “royal prerogative”. As the interplay between the royal prerogative and royal assent is too great a subject to discuss in a short article, we won’t dive further into that subject for now.
We will, however, look at a practical example of the use of Royal Assent as reservation has been exercised in our province historically – albeit not for 85 years.
Premier Aberhart v. Lt. Gov. Bowen
The year is 1937. Premier William Aberhart is running a Social Credit Party-led government that holds 56 of 63 seats in the Legislature. The SoCreds were two years into their first of nice consecutive majority governments (the final seven of which were under the leadership of Ernest Manning). The party was founded on the premise of monetary reform – an important contextual point for later.
John C. Bowen is the newly-appointed Lieutenant governor, having only started the role in March of 1937. Bowen was no stranger to Alberta’s political scene, having served as both an Alderman in Edmonton and as a Member of the Legislative Assembly (including time as the leader of the Alberta Liberal Party). His appointment was made on the recommendation of Prime Minister William Lyon Mackenzie King who, ironically, found himself at odds with Governor General in the infamous “King-Byng Affair”.
Bowen also has the distinction of being the final Lieutenant Governor to reside in Government House – another important contextual point.
Not long after Bowen began working under his recent appointment, the time came for him to provide Royal Assent on three government bills that had passed in the Legislature. Two of said bills impacted banks in the province (Bank Taxation Act and Credit of Alberta Regulation Act, 1937) and the Accurate News and Information Act which would have forced media to print government rebuttals and provide the contact information of news sources to the provincial government.
Although the role of Lieutenant Governor is largely ceremonial, the office officially holds three options that can be exercised when Royal Assent is requested – grant, deny, or reserve. Denial or reservation are used in circumstances where a “bill violates the constitutional rights of Albertans or infringes upon federal jurisdiction.”
In October 1937, Bowen elected to reserve Royal Assent on all three of the aforementioned bills, indicating that he would do so until the Supreme Court of Canada had an opportunity to analyze the constitutionality of the legislation. This meant that there was the option to grant Royal Assent within a certain limitation period should the court agree with the government rather than outright deny assent.
While “constitutional crisis” is often thrown around carelessly and recklessly, this is one instance in which its use was completely justified.
Contemporary Albertans are likely familiar with the term “Supreme Court reference” as the current United Conservative government has initiated two such legal matters during their term (Reference re: Greenhouse Gas Pollution Pricing Act and Reference re: Impact Assessment Act). Following the reservation of Royal Assent on the SoCred bills, a reference to the Supreme Court of Canada was filed (1938 CanLII 1 (SCC)).
In 1938, the Supreme Court of Canada ruled that all three of the bills were, in fact, unconstitutional. It also ruled that the Alberta Social Credit Act was ultra vires of the provincial legislature. As this article is not a legal analysis, we will leave that discussion for another day.
As no appeal exists for a Supreme Court reference, the matter was concluded. However, that did not preclude the government from finding alternative forms of retaliation. Shortly after the bills were “killed”, the government voted to cut funding to Government House and would require Bowen to remove him and his family at the property. After Bowen responding that he would not leave unless an Order in Council was filed, Premier Aberhart forced the issue by terminating Government House’s support staff and cut-off utilities to the property.
In May, Bowen would finally leave the property. Since, no other vice-regal representative has called Government House home. It is now used mostly as a meeting space and for certain ceremonial events.
Is Alberta in the Midst of a Constitutional Crisis Today?
The simple answer: no.
The better answer: no, but it could happen.
Many have raised red flags about last week’s events as it is against convention for a vice-regal representative to insert oneself into political matters as they hold a non-partisan office. In addition to the aforementioned comments, Lieutenant Governor Lakhani also told reporters that she would be seeking advice from vice-regal colleagues at a conference in Newfoundland in October – the same month in which the next leader of the UCP is set to be announced.
One of the quotes that has raised eyebrows is “we are a constitutional monarchy, and this is where we do checks and balances. I’m what I would call a ‘constitutional fire extinguisher.’ We don’t have to use it a lot, but sometimes we do have to use it.”
The counter-argument to that point is that, in fact, Lieutenant Governor Lakhani provided no commentary on the validity or invalidity of Smith’s proposal and that she would wait until if/when it was tabled before seeking an independent legal opinion and weighing in on the matter herself. She merely commented on her role in the legislative process and the options made available to her through our constitutional monarchy’s royal prerogative.
Many things need to occur before we can declare ourselves in the midst of a constitutional crisis. First, Danielle Smith needs to secure the leadership of the United Conservative Party (and thus, the premiership). Second, the Alberta Sovereignty Act would need to be tabled in the Legislature and subsequently passed. Third, Lieutenant Governor Lakhani would need to make a decision about whether she should grant, deny, or reserve Royal Assent. If she were to chose on of the final two options, then - by definition - we will have reached crisis levels.
At the end of the day, it is a constitutionally valid and freely available option for a Lieutenant Governor to not automatically grant Royal Assent when the circumstances call for it (notwithstanding the rarity of this avenue being employed by a vice-regal representative). With that said, the fragility of our constitutional monarchy is on full display when a Lieutenant Governor discusses this possibility in reference to a specific piece of legislation (whether commentary was provided or not).
It appears that Lieutenant Governor Lakhani is well-versed in Alberta’s political history. When questioned about trepidation of potential political repercussions, she provided a fulsome response in a short sentence.
“This is why I live in my own house.”