The non-modern chronotope of ‘the honour of the Crown’ in contemporary Canadian law

The non-modern chronotope of ‘the honour of the Crown’ in contemporary Canadian law


Having spent the previous chapter canvassing one corner of critical legal theory, in an analysis that emphasizes the effects of conceptual/political scalar shifts carried out by scholars and activists, we move now to the arena of legal doctrine and formal adjudication for the next case study. Specifically, the chapter draws on the field of law concerned with aboriginal rights and colonial injustice (in Canada), and even more specifically, the doctrine of ‘the honour of the Crown’.

The central role of temporality shifts in the court decisions that make up the doctrine of ‘the honour of the Crown’ was a surprising finding. Because Canadian judges devised the doctrine in question specifically to manage struggles over aboriginal claims to land (both aboriginal title claims and claims to occupy and govern land in particular ways), one would expect that space (especially territory) and jurisdiction would be the key categories. In general, postcolonial legal scholars have (rightly) paid a great deal of attention to issues of space, such as boundary-drawing and struggles over territorial jurisdiction. In the case of the doctrine of the ‘honour of the Crown’, however, sovereignty, jurisdiction, and territory are ultimately at stake; but it is the spatiotemporality of the (legal) objects in question that is in the foreground (as it is in many of Bakhtin’s own chronotopes), and temporality comes into its own in a few instances.

That chronotope clashes play a central role in legal disputes over aboriginal rights is hardly news. Scholars working on legal issues associated with aboriginality1 have studied in some detail the ways in which evidence that embodies and produces non-Western spatiotemporalities (e.g. songs, dreams, clan crests, elders’ narratives of origin and occupation) has been, even when judged admissible, rendered powerless, hence documenting the hegemonic force effected by the temporalities and spatializations built into Western law (e.g. Borrows 2002, 2010; Daly 2005). However, such studies, because they focus on gatekeeping issues, have a built-in tendency to construct white Western law as a monolith of modernity. As Ian Klinke has noted, the very proliferation of studies of varieties of temporalization and spatialization in non-Western contexts has had the probably unintended effect of generating a monolithic picture of Western spatiotemporality. Thus, the temporal and epistemological pluralism of Western modernity has received insufficient study (Klinke 2013; but see Riles 2000). Now that we have come to appreciate the complexity of spatiotemporal moves in non-Western law (e.g. Benda-Beckmann et al. 2009), it is an appropriate time to train the scholarly gaze on Western law not simply to document the well-documented power effects of its modern features but to unpack the largely unstudied workings of Western law’s non-modern features and knowledge moves. As we shall see, the legal chronotope studied here is thoroughly white and Western, but it is also thoroughly premodern. It is premodern not because it has learned from and included within itself aboriginal legal perspectives associated with premodernity, as one might have expected, but rather because, quietly eschewing the resources of aboriginal people’s own legal traditions, it has turned the gaze inward and creatively canvassed the rich history of the common law in search of a Derridean pharmakon, a useful supplement to and remedy for the deficiencies of Western law’s own modernity.

Most scholars interested in law and temporality focus either on the non-Western and non-modern features of non-Western legal traditions (with non-Western temporalities often described as cyclical rather than linear) or else on the modern features of modern temporal governance, such as the effects of clock time. As noted in Chapter 2, Carol Greenhouse, in her influential book comparing temporalities across legal systems, explores the internal spatiotemporal pluralism of Western law in some detail, but in keeping with legal anthropology generally, her main argument highlights the importance of linearity to Western temporality and hence Western law (Greenhouse 1996). Similarly, critical studies of spatialization practices used by legal scholars (for example, the influential work by Timothy Mitchell and James Scott [Mitchell 1988; Scott 1998]) also emphasize what is new and modern about modern governance, even when acknowledging that modernity does not occur anywhere in ‘pure’ form and that there are many modernities.

This chapter explores one legal chronotope that puts in question the now habitual association of cyclical and/or spiritual notions of time with non-Western forms of law, and also questions the association of white law with abstract, rational space. It does so, in classic deconstructive fashion, not by theoretical argument but rather by showing that the various spatial and temporal binaries associated with the premodern versus modern distinction deconstruct themselves in particular texts. Specifically, in recent decisions of the Supreme Court of Canada in regard to aboriginal rights, ‘the honour of the Crown’ has emerged as a surprisingly powerful entity that has considerable and novel practical effects. The re-emergence of a powerful monarchical entity in contemporary Canadian law among other things deconstructs Walter Bagehot’s famous binary distinction between the efficient and the dignified dimensions of the English constitution (Bagehot [1867] 2001). However, far from being used to exhort anyone to unthinkingly exalt a monarchical figure (which is what one might expect given the cultural resonances of ‘the Crown’ that Bagehot correctly identified), the phrase ‘the honour of the Crown’, as used by judges, instead carries out a highly ‘efficient’ and modern task. It recycles and adapts European medieval notions of the mystical properties of the Crown for the highly modern, perhaps postmodern, project of acknowledging and beginning to remedy colonial injustices toward aboriginal people.

It may seem paradoxical that judges (specifically, enlightened leaders of the Canadian judiciary) found it necessary to resort to the most mystical notions available in the common law in order to provide some redress for injustices that today’s multicultural state narratives acknowledge and that cannot be addressed within existing positive law. But that is indeed the case: the honour of the Crown has been used, in this area of law, as a treatment for the very disease that the Crown in question caused – namely colonialism. The effects of judges’ decision to look to the most antique and illiberal corners of the common law for a remedy to colonialism’s legal defects have yet to fully unfold; but this chapter offers a few indications of the actual and potential effects of the particular ‘legal technicalities’ chosen by the judges whose texts are studied here (Valverde 2009).

What may be obvious to an outside observer but is completely suppressed in the judicial writing in question is that when white leaders, including judges, began to acknowledge that ordinary law (including the law of evidence as well as substantive law) had become inadequate, there was a clear alternative, a road that was not taken: the thorough incorporation into Canadian legal doctrine of aboriginal legal traditions and aboriginal forms of legal reasoning. But such a move would have required, sooner or later, a serious rethinking of what counts as ‘law’ and, more immediately and personally, the displacement of the well-meaning non-aboriginal judges who have thus far monopolized the higher reaches of doctrine. Many of them are now able and willing to inform themselves about aboriginal ‘cultures’, in contrast to their far more dismissive forebears, and are able to display cultural sensitivity in their rulings. Nevertheless, aboriginal jurisdiction remains, and must remain, a radical threat to established judicial authority that cannot be contained by any amount of cultural sensitivity. Institutionally, if aboriginal law were to be taken seriously, the current crop of appeal court judges would have to be replaced by something like the ‘mixed jury’ that Marianne Constable documented in another context – that is, a novel mechanism in which aboriginal knowledges and aboriginal leaders share adjudicative authority with judges and lawyers trained in Western law (Constable 1994).

In the face of this threat (which has certainly been articulated in political discourse, but is rarely voiced by aboriginal groups within legal contexts, for tactical reasons), Supreme Court judges have searched high and low within the common law’s own epistemological and legal resources to find supplements to ordinary law. The honour of the Crown doctrine is not the only such supplement; but it is an important one, and given its peculiar spatiotemporality, it is the one chosen for analysis here.

As scholars using deconstruction have shown, supplements often end up threatening the entity being supplemented; but in the present case the supplement has been carefully articulated to limit potential unintended consequences. A key element in this thus far successful containment is that despite the fact that one and the same Crown reigns all over Canada and over all residents, the doctrine of the honour of the Crown has been carefully limited to aboriginal legal disputes. Members of groups that were excluded from citizenship by virtue of belonging to what was once called ‘the Asiatic race’, for example, cannot use existing law on what the Crown owes aboriginal people for their own benefit (even in the case of people, like would-be immigrants from colonial India, who were also subjects of the same monarch). Indeed, due to the strict separation of aboriginal law from other areas of law, the larger destabilizing effects of courts’ displacing the discourse of rights by means of premodern notions of the honourable duties the sovereign imposes on himself have not been explicitly discussed – although as we shall see, some judges at least, without mentioning the word ‘reparations’, have worried about potential leakage.

That Western law should find it useful and even necessary to revive premodern chronotopes is by no means a phenomenon unique to this legal field. In work dealing with other areas of law, I have shown that non-modern or premodern legal knowledge moves not only persist in our present but can be activated, in a dialectical manner, in new legal arenas, often to remedy the internal contradictions and failures of modernist legal knowledge formats (Valverde 2003, 2011). Here, however – unlike in the case of local law (Valverde 2011) – there is no open-ended dialectical relationship between contradictory chronotopes, and little by way of internally generated movement. The mystical spatiotemporality of the honour of the Crown is strictly cabined by being confined to aboriginal legal claims; and, furthermore, once it is invoked, uttering the phrase does not act as the beginning of a dialectical move or a Bakhtinian dialogue. On the contrary, uttering the phrase acts to put an abrupt end to the game of jurisdiction, as shall be shown in detail below.

The ontological status of the Crown

‘The Crown’ – an ontologically hybrid term if there ever was one (Latour 1993) – is one of the most frequently used terms of Canadian law, and perhaps for that very reason it is one of the least, perhaps the least, theorized term. It is found, with performative effects, in laboriously constructed lofty documents, such as treaties between states or between the Canadian government and aboriginal nations. But it is also mechanically reproduced thousands of times a day in run-of-the-mill criminal proceedings, which are always styled Regina or Rex, abbreviated ‘R.’, as in R. v. Smith or R. v. Jones. The genderless ‘R.’ is an interesting actor. It is first of all a printed mark serving as a label telling the reader that a criminal prosecution is at work. Secondly, it is a reminder of the monarchical nature of the Canadian state. Thirdly and most importantly, because the letter abolishes distinctions between monarchs, the ‘R’ creates a transgenerational, supernatural ‘body mystical’, today’s successor to the king’s second body (Kantorowicz 1957). The historical markers dividing one reign from another and the physical differences between one monarch and another are all erased by the operation of the tiny mark that is the capital R followed by a period. (That erasure of physical bodies is of course also performed in such phrases as ‘The people of the state of California’; but ‘the people’ of that phrase is wholly collective and transgenerational, unlike the monarch, who is to this day in part an actual individual.) The quick slide from an apparently trivial convention (using ‘R.’ instead of Elizabeth II Regina) to the loftiest realms of political theory is a symptom of the overall logic of the complex assemblage that is ‘the Crown’. In this assemblage, ordinary historical temporality and everyday legal processes are not so much abolished as subsumed, aufgehoben, into the mystical, almost timeless spatiotemporality of that curious medieval political actor, the king’s second body (Kantorowicz 1957; Engster 2001).

It is probably significant that, while evoking the special powers of monarchs, the term ‘Crown’ has also been quietly appropriated by a good number of commoners in Canada, by contrast with most other common-law jurisdictions. A public prosecutor in English Canada will answer the cocktail-party question, ‘what do you do?’ by saying, ‘I’m a Crown’. Unless there are foreigners present who marvel at this way of describing one’s workaday existence, Canadians express no amazement at the fact that an ordinary person with a law degree can claim not just to represent but to be nothing less than the jewelled object, located thousands of miles away in another jurisdiction, worn by Queen Elizabeth II on solemn occasions. In a more internationally common deployment of the royal crown, Canadian coins and bills feature an image of Queen Elizabeth’s crowned head; and since the prosecutorial appropriation of the ultimate symbol of royal power has long been blackboxed in Canadian society, nobody expresses surprise when seeing that a prosecutor uses printed images of the very Crown that they claim to ‘be’ for such non-official purposes as buying a coffee.

A century ago, the great English legal historian F.W. Maitland, who as a modernizer was upset to see that the Crown was unexpectedly reproducing (instead of fading) as colonial and postcolonial jurisdictions multiplied, declared: ‘As a matter of fact we know that the crown [not capitalized] does nothing but lie in the Tower of London to be gazed at by sight-seers’ (Maitland [1908] 1961: 418). A.V. Dicey similarly complained that ‘no-one, indeed, but a child fancies that the King sits crowned on his throne at Westminster and in his own person administers justice’ (Dicey 1902: 10). It is only because English law lacks even a word for droit administratif, Dicey explains (ibid.: 323), that it is still necessary to talk about the Crown and its powers. The English refusal to admit that there is such a thing as a British state creates confusion, Dicey argued, since the true powers and jurisdictions of ‘the Crown’ (that is, the British state) are ‘concealed under the fictitious ascription to the sovereign of political omnipotence’ (ibid.: 11).

The English modernizers who a century ago cast aspersions on English law’s fondness for using ‘the Crown’ as a confusing label for all manner of personifications of the state, while still retaining the old meaning of ‘Crown’ as ‘the monarch’, would be shocked to learn that in a country whose legal system is arguably a great deal more modern than that of Britain, namely Canada, the older English Crown networks have not only persisted but multiplied and given rise to novel assemblages. Against the expectations of modernizers, and against the grain of liberal human rights logics, a new legal network has been created in which the very mysticism and quasi-divine temporality that have characterized the (English) Crown since the sixteenth century has acted as a key resource for aboriginal nations seeking to assert their rights in novel ways.

The analysis of the effects on sovereignty and jurisdiction of the mystical spatiotemporality of the body politic that is the Crown will be told in two parts. The first part explains the curious notion, invented almost from scratch by the Supreme Court of Canada, that if aboriginal peoples now have greater rights, especially in respect to natural resource development, than they did a century ago, this is not because of international conventions or domestic rights-centred laws, but rather because ‘the Crown’, being essentially and by nature honourable, is obligated, by its own internal virtue, to accommodate aboriginal interests, with the honourable obligations of the Crown being quietly and smoothly passed on to Canadian government officials. The story of the ‘honour of the Crown’ will be followed by a reflection on a curious phrase that appears to have very little if any semantic content, but which works to seriously undermine the very aboriginal claims that are furthered by the honour doctrine, namely the homey judge-made legal phrase ‘the Crown wears many hats’. The practical meaning of this rather incongruous image is as follows: the government of Canada may well have a historic responsibility to guard the interests of aboriginal people in the face of rapacious white settlers, a responsibility inherited from the colonial Crown; but the same government also has to protect non-aboriginal persons’ private property rights and has to promote capitalist economic development. Thus, some judicial texts that somewhat extend aboriginal rights (at least, consultation rights) go on to undermine the promise of justice just made by stating, as a brute fact, that ‘The Crown wears many hats’, i.e. has responsibilities towards groups other than aboriginal nations.

The odd, even ridiculous image of a bunch of hats perched on top of a royal crown is currently being repeated from text to text without having thus far been analyzed in the vast relevant legal literature. Unfortunately for aboriginal people, however, the mixed metaphor is not a purely textual or symbolic entity. The grandiose ontology of the quasi-divine monarch’s self-imposed honourable duties promises benefits, but the frankly undignified metaphor of the many hats then puts those duties and resulting benefits in question. By using one phrase after the other with no mediation or explicit explanation, what judges are doing is to use the rich array of chronotopes and jurisdictions available not just in common law but in ordinary, non-legal language to quietly boost their own discretionary power. But before we discuss the hats we need to tell the story of the Crown’s essential honour.

The inherently benevolent Crown and its mystical spatiotemporality

In Canada, as in Australia, federalism complicates an ontology of sovereignty that was already, in the purely domestic English context, rather fuzzy. The Crown is not exclusively federal: Canadian provincial governments are often referred to as ‘the Crown’ or as ‘the Queen in Right of Ontario’, ‘the Queen in Right of British Columbia’, etc. Complicating matters, the usage is not consistent: governments also appear in court not as the Queen in Right of Canada or Ontario but as ‘The Attorney General of Canada’ or ‘the Attorney General of Ontario’, with these somewhat unstable linguistic conventions appearing to Canadian practising lawyers as an unimportant technicality (Riles 2005; Valverde 2009).

This semiotic fluidity could lead to the conclusion that the term ‘the Crown’ is a decorative anachronism of no real legal consequence. In some contexts, that is undoubtedly true. However, in the context of aboriginal rights claims, the Crown is doing new work; and it needs to be noted that this invention of monarchical tradition has been carried out by aboriginal legal writers as well as by courts (Henderson 2009; Borrows 2010).

The honour of the Crown is not mentioned in the Canadian constitution. It is not found in Acts of either the old imperial or the current Canadian Parliament, and it makes only the most fleeting of appearances in the common law. This latter point is important: whereas laws and norms about most frankly modern Canadian legal inventions (official bilingualism; multiculturalism) are based on statutes and on the written 1982 Constitution, aboriginal law in general and this doctrine in particular conspicuously lack black-letter support. The near-absence of the honour of the Crown doctrine from the ordinary sources of law is important from the point of view of chronotopic pluralism: if the doctrine were indeed part of standard black-letter law, law professors attempting to explain the doctrine to their students would be forced to somehow account for the persistence, or rather the reinvention, of medieval notions of honourable, self-imposed obligation in a legal world largely dominated by modernist rights doctrines. But since the doctrine is nowhere to be found in either statutes or in the Constitution, and its appearances in judicial decisions are limited to the specialized area of aboriginal rights, the striking disconnection between the chronotope of the honour of the Crown and other more consistently modern legal chronotopes can be more easily ignored.

Creative readings of the common law, readings that go beyond the usual workings of legal fiction, have often been used by judges and by legal scholars attempting to find legal footholds for claims that have little purchase on conventional sources of law but that have come to appear as just. Aboriginal title, for example, was for many years viewed as justified by old English law concerning certain feudal forms of land tenure (see McNeill 1989, a text often cited by the Canadian Supreme Court). Aboriginal title (a highly specific form of title, different from fee simple or any other ‘normal’ legal form) is now well established in black-letter law, in Australia as well as Canada (Russell 2005). But for a long time judges wanting to push law in a more just direction had to resort to such creative manoeuvres as those famously developed by Kent McNeill’s painstaking repurposing of English feudal land law.

In a somewhat similar manner, one case that has been (very creatively) cited as a precedent for current views on the honour of the Crown is Lord Coke’s decision in a 1613 dispute with the Sherlock-Holmesian name of The Case of the Churchwardens of St. Saviour’s Southwark. In solving the churchwardens’ legal problem, Lord Coke, needless to say, was not thinking about the future British Empire and its possible fiduciary and other duties to aboriginal peoples. Coke merely said that if a royal grant of interests in land can be read two different ways, and one would render the grant void, then the other meaning should be chosen, for the King should not be imputed with the intent of making a void grant (10 Co. Rep. 66b, 77 E.R. 1025). This is a pragmatic and limited judgment on a purely private matter; but when contemporary Canadian judges cite this case (alongside another, even less obviously relevant case, Roger Earl of Rutland’s Case (1608), 8 Co. Rep. 55a, 77 E.R. 555) an atmosphere of antiquity and continuity is established. Like a cloud of church incense, the somewhat fictitious recourse to the venerable Coke acts to conceal the novelty, and the contemporary political-historical purpose, of the doctrine, thus facilitating a smooth transition to the chronotope of the honour of the Crown: what Coke decided is not nearly as important, for current Canadian purposes, than the fact that a case, and one by a judge of mythical stature, exists and can be cited. To my knowledge, none of the aboriginal parties in the cases studied here put forward complaints about the way in which the Churchwardens case has been used; the link between past and present has thus been blackboxed (as is the case generally in the common law).

The spatiotemporality at work in the Canadian texts that cite the church-wardens case is not that of ordinary modern causality, but neither is it timeless or placeless. Kantian legal reasoning, to give a contrasting example, proceeds by seeking or constructing universality in a disembodied, placeless, and timeless fashion. But the logic at work in our cases is one that requires specific historical roots and legal precedents, even if the content of the precedent cited is not especially relevant. To put it differently: a purely static, timeless legal chronotope would not require yellowing tomes that can be trawled for cases that are mainly about actual individuals and real places (such as the parish of Southwark), cases that would be completely out of place in a Kantian legal theory tome. Therefore, the spatiotemporality of the Crown as constructed in these legal texts is neither universal nor rational: it is spiritual and mystical. Specifically, the Crown’s claim to fame – which is, like sovereignty in general, auto-effective, at least until someone contests it – lies in having the magical or spectral ability to underpin quite different and even conflicting jurisdictions at the same time, without this loaves-and-fishes multiplication miracle causing any skepticism on the part of the intended audience. One and the same Crown can be Queen of Australia, Queen of Canada, Her Majesty In Right of Ontario, the British Columbia Ministry of Natural Resources, and hundreds of other things, all at once, without the production of new personifications having any perceivable negative effect on the older ones. Later in the chapter I describe this unique legal spatiotemporality as that of Aladdin’s magic carpet, an image that captures one aspect of the chronotope; but here, the point is to distinguish the aspirations to timelessness and placelessness of rationalistic legal thought from the chronotope at work here, which is characterized (as Maitland noted with dismay) by a curious proliferation of multiple and partially overlapping bodies politic that multiply but never die or even fade away.

Indeed, virtually all the powerful resources of rationalistic Enlightenment law are conspicuous by their absence in this legal network. But contrary to what one might expect, turning away from (or, more accurately, blithely ignoring) such well-known texts as UN declarations on the rights of indigenous people in favour of the mystical spatiotemporality of the Crown is a move that helps to promote aboriginal interests. It helps aboriginal peoples in their quest for justice (though justice is transmuted into something like mercy) precisely because the logic of ordinary, everyday black-letter law rarely works in favour of aboriginal peoples, and often works against them. By contrast, the self-imposed honourable duties associated with medieval sovereignty, if re-read in light of today’s ideas about historic injustice and reparations, can create new benefits – precisely because they are indeterminate by nature, the Crown’s virtues being by definition immense if not actually infinite.

One of the many Canadian fans of the honour of the Crown doctrine, Saskatchewan Treaty Commissioner David Arnot, tellingly states that by ‘resurrecting’ (his word) the ancient doctrine by which the Crown must be assumed to always already harbour nothing but honourable intentions, the Canadian Supreme Court is appealing to ‘a standard of fair dealing that stands above and outside the black-letter law’ (Arnot 1996: 341; emphasis added). A useful supplement to law, indeed.

When the honour of the Crown was first resurrected, as Arnot puts it, by the Supreme Court of Canada, it was largely bound up with and for a long time limited by the doctrine of fiduciary duty. Fiduciary duty in this context is a doctrine that recognizes that when the Crown (in this context, the Canadian state) undertakes discretionary control in relation to a specific aboriginal interest, it assumes equitable obligations enforceable in the courts. A fiduciary is always under an obligation to act honourably, with someone else’s interests always at heart, somewhat like a trustee. (Canadian judges are fond of describing the Crown’s obligations as ‘trustee-like’, a phrase that typically creates as much ambiguity as certainty.) And it is central to the law of equity that those obligations are not enumerable – the whole point of equity, after all, is to provide remedies in situations that black-letter law has not foreseen and spelled out beforehand.

The honour of the Crown was thus initially seen as an aspect of the Crown’s fiduciary obligations, obligations which the English law of equity would not want to limit to those set out in the written words of treaties. In R. v. Sparrow, an important case, the Supreme Court held that ‘the honour of the Crown is at stake in dealings with aboriginal peoples. The special trust relationship and the responsibility of the government vis-à-vis aboriginals must be the first consideration in determining whether the legislation or action in question can be justified [notwithstanding that it infringes aboriginal rights]’ ([1990] 1 S.C.R. 1075 at para. 73). Subsequently, in R. v. Van der Peet, Lamer C.J suggested that the duty to act honourably was grounded in the government’s fiduciary duty: ‘The Crown has a fiduciary obligation to aboriginal peoples with the result that in dealings between the government and aboriginals the honour of the Crown is at stake’ ([1996] 2 S.C.R. 507 at para. 24 [emphasis added]).

It was not until its 2002 decision in Wewaykum Indian Band v. Canada that the Court began to lift the Crown’s honour ‘above and beyond’ the letter of the law, by separating honourable duties from legal fiduciary obligations. The ‘need to uphold the “honour of the Crown”’ is only ‘somewhat associated with the ethical standards required of a fiduciary in the context of the Crown and Aboriginal peoples,’ Justice Binnie stated, for the court ([2002] 4 S.C.R. 245 at para. 80). And in Haida Nation v. British Columbia (Minister of Forests), Chief Justice McLachlin, writing for the Court, effectively reversed the relationship: the honour of the Crown was now said to be not the effect but the source of legal fiduciary obligations: ‘The honour of the Crown gives rise to different duties in different circumstances. Where the Crown has assumed discretionary control over specific Aboriginal interests, the honour of the Crown gives rise to a fiduciary duty’ ([2004] 3 S.C.R. 511 at para. 18).