Orders, Titles and the Royal Prerogative: Canada vs Lord Black

Ray Hnatyshyn, then HE The Governor General of Canada
presents the insignia of an Officer of the Order of Canada
to Conrad Black. 1990

The indefatigable, tenacious and ever controversial media tycoon Lord Black of Crossharbour, better known to Canadians as Conrad Black, is again in the news. This time he is challenging attempts to strip him of his clearly much cherished appointment, in 1990, as an Officer of the Order of Canada (Canada's highest merit order). Officers of the Order are appointed in recognition of "a lifetime of achievement and merit of a high degree, especially in service to Canada or to humanity at large."  Recipients receive an attractive neck badge suspended from a red and white ribbon, and they may append the letters "O.C." after their name. They are also entitled to encircle their armorial bearings with the ribbon of the order and suspend the badge from the base of the armorial shield.

A member may be removed from the Order if the Advisory Council of the Order of Canada (an 11-strong body which is chaired by the Chief Justice of the Supreme Court) deems a member's actions to have brought the Order into disrepute. The possession of a criminal record falls within this category of actions. To date, four individuals have been expelled from the Order of Canada: Alan Eagleson (1998), David Ahenakew (2005), T. Sher Sing (2008) and Steve Fonyo (2010). Garth Drabinsky is another member whose suitability for continued membership is currently under review by the Advisory Council.  The call for Lord Black's expulsion relates to his US conviction and incarceration for mail fraud and obstruction of justice. In September 2011 the Advisory Council announced that it would review Lord Black's membership of the Order.

Lord Black's defence team have advanced ten arguments against his expulsion from the Order. Chief amongst these is their assertion that Lord Black was treated unfairly in the US judicial system and would not have received a criminal conviction had he been brought to trial in Canada.  The Advisory Board, which is now reviewing Lord Black's case, will make its recommendation to Canada's Governor General (the Canadian representative of HM The Queen, who is the fount of all honours in Canada) who alone has the authority to strip recipients of their honours.

Unusually, Lord Black has requested that his situation is so unique (and therefore unlikely to set a precedent) that he has petitioned the Federal Court to grant him permission to present oral evidence to the Advisory Council (the Council having denied his original request -- although his lawyers were able to make representations in writing). The Federal Court judge reserved his ruling last Friday and has not set a date for his decision. However, lawyers for the government have stated that the granting of honours, and the procedures that accompany them, lie within the realm of the Governor General's royal prerogative and, as such, fall beyond the reach of the courts and are consequently non-justiciable. It is a well-established constitutional principle that the Governor General cannot be fettered by the courts in the exercise of the royal prerogative.

This is not the first time that Lord Black has come up against the royal prerogative.  In 2001 the British Prime Minister recommended that HM The Queen of the United Kingdom should bestow a peerage upon the then Conrad Black. Conrad Black had previously received assurances from the Canadian government that as he was a dual UK/Canadian citizen, the conferral of this dignity of nobility would be permitted. However, although several similar honours had been conferred on other Canadians in the recent and not so recent past, perhaps due to the antagonism that existed between Conrad Black and the then Canadian Prime Minister Jean Chretien, Chretien advised The Queen not to confer the peerage on the grounds that it would violate the (questionable) long-standing convention (based upon the non-binding Nickle Resolution of 1919) that no Canadian could receive a knighthood or title of nobility.  The Queen accepted the Canadian Prime Minister's advice.

Conrad Black launched a suit against the Canadian Prime Minister in the Federal Court, arguing that the Canadian Prime Minister had exceeded his authority to advise or make recommendations to the Sovereign as she was acting in her capacity as Queen of the United Kingdom and not as Queen of Canada. Whilst it is highly likely that Black was correct and the Canadian Prime Minister had exceeded his authority; nevertheless, the Federal Court ruled that the Prime Minister had exercised the Royal Prerogative and this was therefore non-justiciable as it was beyond the reach of the courts. As a result of this ruling, Black renounced his Canadian citizenship in 2001 and, as a UK citizen, he was finally able to take his seat in the House of Lords as The Rt. Hon. The Baron Black of Crossharbour.

HM Queen Elizabeth the Queen Mother
receives the insignia of an "Honorary"
Companion of the Order of Canada. 2000

The loss of Lord Black's Canadian citizenship raised (and raises) an important issue which, so far as I know, has not been considered or addressed by any official bodies -- namely that only Canadian citizens may be substantive members of the Order of Canada. As she was not deemed a Canadian citizen, HM Queen Elizabeth the Queen Mother, despite being a former Queen Consort of Canada and the mother of The Queen of Canada, who is herself Sovereign of the Order of Canada, was unable to become a substantive member of the Order of Canada, and was therefore controversially appointed an "honorary" companion of the Order on the occasion of her 100th birthday.

Now that Lord Black is no longer Canadian, is he a substantive or an honorary member of the Order of Canada? Certainly there is no evidence in support of the latter classification and we must assume he remains a substantive member. Is it too much of a stretch to suggest that perhaps a precedent has been set which may now allow members of Canada's Royal Family to accept substantive membership of the Order?

As an aside, it is interesting to note that although the Canadian media almost always accord British peers and knights their titles (a search on the websites of Canadian media outlets will reveal that Sir John Major, Lady Thatcher, Lord Prescott, Lord Archer and numerous other UK citizens are addressed with their correct titles), this courtesy is seldom, if ever, accorded to Lord Black, who is invariably styled simply as "Conrad Black", despite holding only UK citizenship. One wonders whether this might suggest some bias.

(A further aside: Lord Black remains a member of the Canadian Privy Council -- it is a little known fact that members of the Canadian Privy Council are entitled to an official "Special Passport"; it would be an amusing loophole were Lord Black able to use this avenue to secure a Canadian passport. Alas for Lord Black, these are only granted to privy councillors who are engaged on business for the Canadian Government).