The Avengers, Omega Flight & Westminster style Executive Government

While rereading Avengers Vol. 5 #10 recently I noticed (remembered!) how the story took the Avengers to Canada where we had an alien force take over Regina, the capital city of the province of Saskatchewan. Canada's Department H had reluctantly called in S.H.I.E.L.D. and the US-based Avengers for help when this little gem of dialogue appeared: 

Image from Marvel's Avengers Vol. 5 #10 (June 2013) Written by Jonathan Hickman, Pencils by Mike Deodato, Colours by Frank Martin, Letters by Cory Petit.

Image from Marvel's Avengers #10.

A military department with nuclear weapons that "his government" (and by this I presume the elected politicians) doesn't know about. Could this even happen in Canada? Could there be such a disconnect between a government department and the elected leadership that, as Logan suggests an "old school" government agency could have access to nukes that nobody knows about? And if so could this thing even be legal? This piece will examine this issue using the history of both the Canadian and British parliamentary systems as well as the current law that governs the Department of National Defence to explain how this in fact could not happen. Legal issues aside, this was an enjoyable story is not an indictment of the actual writing or art in any way. 

Canada is what can be called a Westminster democracy because it is modelled after the UK’s parliament located in Westminster, London. The British parliament has been a model for many democracies around the world, not just those 16 states that share Queen Elizabeth II as their head of state. Naturally, as these different states have evolved they have made subtle changes to better reflect the realities of their geographic and political realities, but in essence Westminster systems tend to remain quite similar. Examples of such changes include Australia, which while sharing the Queen has an elected upper chamber, whereas members of their British and Canadian equivalents, the House of Lords and Senate of Canada respectively, are appointed by the Queen on the advice of their prime minister.  Since 1982 Canada has also had an entrenched constitution with a Charter of Rights and Freedoms which is a legal document that while allowing for both the federal parliament in Ottawa and the provincial legislatures to pass laws, also serves as an entrenched check against these legislatures and their laws have been found to be unconstitutional and struck down by the courts. Westminister style states can also include republican countries such as Israel or India who have presidents yet operate in a similar fashion as their monarchical cousins and have prime ministers who make the political decisions and are elected members of parliament. 

The UK's MI: 13 (The MI stands for "Military Intelligence" and dates back to WWII) would follow a similar chain of command as Canada's Department H, as Canada's system of governance was largely modelled after the UK's. Image from Marvel's Revolutionary War: Alpha (March 2014) Written by Andy Lanning & Alan Cowsill, Art by Rich Elson, Colours by Antonio Fabela.

History

While the history of parliamentary governance reaches back further than the Norman invasion of England in 1066, it's here where we’ll begin our discussion. It was that pivotal year that the Normandy-based duke William conquered England and took the kingship of the realm. Not knowing the country as well as he might, the new king and his descendants set about inviting England’s landowners to join in the governance of the consolidated kingdom. Over time these aristocrats grew robust in the defence of their newly acquired rights and responsibilities and by the early 1200s were in rebellion against one of William's lesser decendents, John. So it was in 1215 that John was made to sign Magna Carta, which subjected him to the law and disallowed him from raising taxes or an army without their consent. From John onwards, certain favourites or competent individuals would assume positions of power and influence and the early stages of ministerial government developed.

But it was in the seventeenth century that things came to a fore. In 1603 James VI of Scotland became the King of England upon the death of his cousin Elizabeth I and this brought a different tone to the governance of England. James was influenced by continental rhetoric that envisioned a more centralized and monarch-centred ideal and soon set out to implement this as policy. This thinking became even more pronounced when James' son Charles assumed the English throne and would culminate when parliamentary and royalist forces went to war in the English Civil War (1642 to 1651). This war ultimately led to Charles’s execution, but when the republican experiment failed, Charles's son (Charles II) was invited to become King. When he died, his brother assumed the throne but being Catholic, was unacceptable to England’s largely Protestant aristocracy. So when James II finally became unpalatable for English nobles, they invited the Dutch Prince William of Orange (who was married to James’ daughter Mary) to become co-regent with his wife. But in order to become King, William was made to sign a contract of sorts – called the Bill of Rights of 1689 – containing a number of provisions of which the king had to adhere. These included a prohibition of cruel and unusual punishment, jury trials for criminal matters and other such things.

The marker denoting the site in Westminster Hall where Charles Stuart, King of England was sentenced to death. Photo by Blogger.

Westminster Hall. This is the oldest party of the Palace of Westminster. The above shown plaque is on the stairs. Photo by Blogger.

Giving the crown to William and Mary under such conditions represented a seismic shift in the constitutional status of England. By setting conditions, the nobles and the representative body of parliament ascended into an arrangement with the King that changed the legal landscape. Henceforth, it was the "King-In-Parliament" that had sovereign power in England and not only could the King not act unilaterally (as per Magna Carta), if a law was passed in parliament it was indisputably the law of the land and the only thing parliament could not do is pass a law that bound itself. The Crown's prerogative powers – which was the body of customary authority, privilege, and immunity, that was the sole prerogative of the sovereign and included defence, foreign affairs and keeping the peace – were largely maintained and would remain considerable until gradually chipped away by parliamentary statute. But the legal Rubicon had been crossed and parliament was now a sovereign body that could make laws as it decided. Mary died in 1693 and William in 1702 and eventually the crown passed to Anne, Mary’s sister. But when Anne died without an heir, the closest protestant candidate was George, Elector of Hanover, a German who could not speak English. Because of these linguistic issues by the end of George’s reign, much of the responsibilities for the governance of the realm were on the shoulders of a parliamentarian named Sir Robert Walpole and he is largely considered Britain’s (and therefore the Commonwealth’s) first Prime Minister. 

A century and a half later in 1867, when the three colonies of British North America came together to form Canada, its establishing act from the British parliament called the British North America Act stated in its preamble that the newly formed Canada was to be a federal union of "One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom." 

Ministerial Government

Which brings us back to the question at hand: could a Canadian Prime Minister or Minister of Defence not know that the department which he or she ultimately controls has access nuclear weapons? Currently, the Prime Minister of Canada is selected by the Governor-General of Canada (the Queen's representative in Canada) to become PM. This is usually done after an election in which the party he or she leads wins the most seats in parliament. Once this happens, the Prime Minister-elect sets about deciding on who will join him or her to form the Canadian Ministry, which over time by constitutional convention (these are not laws but conventions that have evolved) has taken the prerogative powers of the Crown and become their sole exerciser. These are typically other Members of Parliament and are chosen not just for their competence but other politically calculated considerations which include but are not limited to province of origin, ethnicity, city or constituency.  

All of these Canadian government resources are ultimately under the control of a minister who must answer to the House of Commons. Image from Marvel's Avengers #10.

Once a minister is chosen, he or she is sworn into the Queen’s Privy Council for Canada. The Privy Council's active component are those individuals who are responsible for running or assisting with the operations of government departments such as the Ministry of Finance, Justice Canada or the Department of National Defence. Leaders of the Opposition are also sworn into the Privy Council so they can have access to secret information, but they do not head a government department and actively oppose the government in the House of Commons where each minister is held to account. Because of this, it is ultimately the minister who is responsible for its bureaucrats and employees. So if Department H were to acquire nuclear weapons without the Minister of National Defence knowing, this would be counter the National Defence Act, 1985 which reads in Section 4:

 

The Minister holds office during pleasure, has the management and direction of the Canadian Forces and of all matters relating to national defence and is responsible for

• (a) the construction and maintenance of all defence establishments and works for the defence of Canada; and
• (b) research relating to the defence of Canada and to the development of and improvements in materiel.

Remember this law was passed by the heir of the sovereign parliament of 1689 and is very clear: the Minister of Defence is responsible for all matters relating to national defence. So even if Department H was created by a separate statute by the Canadian parliament (to my knowledge Marvel has never stated which statute created Department H) it would most likely be governed by similar language as the NDA and would ultimately have a minister responsible for it. Because of this, Logan's "old school" friends with their secret arsenal are clearly operating outside of the law and counter to centuries of both historical negotiation and constitutional and legal development.

Alpha Flight, X-Men and Secton 16 of the Criminal Code of Canada

I was reading the Uncanny X-Men: Days of Future Past trade paperback by Chris Claremont and John Byrne recently. Alpha Flight fans may remember that the arch immediately prior to Days of Future Past (and featured in its trade) is an Wendigo-focused story that happens in northern Canada and has the X-Men and Alpha Flight working together, something that had been a rarity up until that point. One of the later panels of Uncanny X-Men #141 particularly caught my attention. Have a look: 

Wendigo reverts to Georges Baptiste and is promply arrested in Uncanny X-Men #140 (December 1980).

Later, Guardian explains what will happen to Mr. Baptiste after his arrest. Also from Uncanny X-Men #140 (December 1980).

Alpha Flight has always been somewhat of an anomaly in comics because its an early state-sponsored superhero group. Of course, we saw groups like this in Golden Age WWII comics; the aftermath of Marvel's Civil War event in late 2000s; and even the U.S. government employed Superman in Frank Miller’s Dark Knight Returns in 1986. But from their very beginnings Alpha Flight has always seemed to be working on behalf of the Canadian government in peacetime. Which is what brought these “super-mounties” into contact with the X-Men and Wendigo in the first place. 

But what exactly would happen “under Canadian law” in this instance? Could Mr. Baptiste be held responsible for any crimes while possessed by the spirit of the Wendigo? And what defences could his lawyers use so the courts "aren't too hard on him" as Guardian suggests? In this short piece I'm going to examine Section 16 of the Criminal Code of Canada and how Mr. Baptiste might use the defence of a mental disorder to prove to the court that he should not be found criminally responsible for his actions.

Defences

Simply put, defences are the means by which defence lawyers prove to the “trier of fact” (which in most cases is a jury in Canada, but at times can also be a judge) that the Accused should not be found guilty of the alleged crime. Serious crimes in Canada must have both a Mens Rea (a guilty mind) and an Actus Reus (a corresponding guilty act). This is very important because it's against natural justice, the Canadian Charter of Rights and Freedoms and even common sense to seriously punish someone who didn't have a guilty mind when they committed a crime.

In Canada, our bedrock document relating to criminal law is the Criminal Code of Canada. This massive tome, while not containing all Canadian criminal law, contains the vast majority of it. First created in the 1892 in an effort to put into statute or "codify" the criminal law of Canada, the text has been amended over the years as Canada's changed. The Code not only contains offences that a person can be charged with, but also defences that can be used by the Accused to prove they are not guilty or criminally responsible. These range from age capacity (Section 13) to the defence of property (Section 40). For the purposes of today's discussion, the defence that applies to the events of Uncanny X-Men #139 and #140 is the mental disorder defence, which is Section 16.  

The "Super-Mounties" of the Marvel universe. Here's Alpha Flight from X-Men and Alpha Flight Vol. 2 #2 (June 1998)

Section 16

Taken directly from the Criminal Code, Canada's mental disorder (we do not say "Insanity") defence is:  

No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of: 1) appreciating the nature and quality of the act or omission or; 2) of knowing that it was wrong.   

Like much of Canadian law, this section of the Criminal Code reaches back to English criminal law, specifically the judgment of M'Naghten's Case of 1843. In M'Naghten, the accused, a Mr. Daniel M'Naghten (pronounced, and sometimes spelled, McNaughtan or McNaughton), attempted to kill British Prime Minister Robert Peel. He was unsuccessful, but in the melee ended up killing one of the prime minister's aides. The resulting trial eventually found its way to the House of Lords, then the court of last resort in the United Kingdom, where the judgment reflected the longstanding idea that mental illness should not be met with retribution, but with mercy.   

Of course, the press and many elected officials vociferously denounced the verdict, something that happened when John Hinkley, Jr. successfully used the defence after his failed assassination attempt on Ronald Reagan almost 140 years later. Congress and a number of states took immediate action to ban the so-called "insanity defence" outright, but the M'Naghten defence still remains on the books in a number of US jurisdictions, just as it is used in Canada and in England and Wales.  

Guardian getting it done in X-Men and Alpha Flight Vol. 2 #2 (June 1998)

Which takes us to the case at hand. In defending Mr. Baptiste, I would say counsel's best move is a Section 16 defence, something Guardian even alludes to. Of course, because the curse of the Wendigo is enacted by the consumption of human flesh, we would have to prove that Mr. Baptiste did not consume the flesh with the intent of becoming a monster, but only out of a desire to survive in the wilderness. This is because we would not want to use the analogous logic of someone using "liquid courage" to commit a crime and then claiming intoxication as a defence. But if Mr. Baptiste didn't understand that his actions would lead to him becoming Wendigo and this subsequent magical mental illness made him loose control of his actions (thereby negating any Mens Rea) I think a Section 16 defence would work. 

It is important to understand that what constitutes a "mental disorder" is a question of law and therefore left to the judge to decide. So while cases involving Section 16 inevitably involve psychiatric experts testifying under oath (and there are provisions to prevent an endless "battle of the experts"), ultimately the judge will decide if there is a disease of the mind in play. She or he will then instruct the trier of fact (jury) to answer: 1) at the relevant time of the crime the accused was incapable of appreciating the nature and quality of his/her action, and if so; 2) he or she did not know that it was wrong. 

And as in all Canadian criminal law, there is case law to guide a Section 16 defence, such as what "appriciate" actually means or how Section 16 relates to specific illnesses, but that is beyond the scope of our piece today. Hopefully however you're leaving here with a better understanding of Canadian criminal law, The Criminal Code of Canada and the Claremont/Byrne run on Uncanny X-Men. Using Section 16 with regard to a magical possession seems a little bit of a stretch, but that's the fun of comics and may even have even been on Guardian's mind he says Mr. Baptiste's actions were those of an "insane man". Thanks again for stopping by and I hope you're having a great September.

Y: The Last Man, 10 Downing Street, & Australian (and Canadian) Constitutional Law

First off, let me say that I love Y: The Last Man by Brian K. Vaughan. This entire 60 issue series is fantastic and I have never torn through trade paperbacks as quickly has I have these. If you have a friend who wants to try comics but isn't interested in Batman or Spider-Man, et al then I highly recommend Y. It’s a thought-provoking story with compelling characters and accessible and enjoyable art. 

Cover of Vertigo Comic's Y: The Last Man #1 (September 2002) Written by Brian K. Vaughan, pencils by Pia Guerra & inks by Jose Marzan, Jr. 

I also have a love of Constitutional history and being from Canada -- a country with a similar constitutional history as Australia -- I was struck by a page in issue 38 as I re-read one of my favourite parts of the series. The scene depicts an Australian government agent explaining to an American doctor how her country is being run after all the men were wiped out by mysterious plague. Take a look:
 

From Vertigo Comic's Y: The Last Man #38 (December 2005) Written by Brian K. Vaughan, pencils by art by Pia Guerra & Goran Zudzuka, inks by Jose Marzan, Jr.

From Vertigo Comic's Y: The Last Man #38 (December 2005)

In the timeline of Y, “10 Downing Street” – a metonym for the British government – is controlling Australia because Queen Elizabeth was forced to appoint her own Governor-General of Australia when no women were able to take the position. It's certainly an interesting situation, but is it plausible either legally or politically? To begin to answer this question we will first look at some constitutional history of the former British Empire and from there apply the existing law to the situation above. 

Let's begin with a survey of the history of the largely English speaking countries that are often very friendly with the United States and have Queen Elizabeth II as their Head of State, but are not the United Kingdom. These countries include a number of Caribbean nations as well as larger countries such as Australia and Canada. Australia and Canada until the post-war period were settled in large part by people from Great Britain and Ireland. Of course, they were never completely homogeneous (Canada had a signficant French-speaking population for example) and both are currently multicultural and pluralistic societies. But what they did have were largely British-styled political and legal institutions.

And these is a key point. Gradually as Australia and Canada built their legal and political institutions they were modelled after what they knew in Great Britain. However, as these societies started to expand across their continental land-masses (often to the consternation of the aboriginal populations living there: but that's for another blog entry) their political and legal institutions began to experience new demands. So it was towards the end of the nineteenth century that the various disparate colonies of Australia and Canada started to consider merging into federal states. It first happened in North America when the four colonies of British North America merged to become the self-governing Dominion of Canada in 1867. Then, in 1901, the same happened in Australia, with six colonies there forming a federation called the Commonwealth of Australia. 

Changing from colonies to "provinces" (Canada) or "states” (Australia) meant that the former colonies kept their own elected legislatures while at the same time having laws passed by a new federal parliament as well; similarly to what happened with the 13 colonies of North America in 1776. But unlike the USA, which cut all ties to Great Britain, Canadians and Australians were responsible for most things but not everything: the British still maintained a measure of control over imperial matters, especially as they related to defence. This is why when King George V declared war in 1914 on behalf of the British Empire he did so with Canada and Australia automatically in tow.

The flag of the State of New York. Notice the crown at the feet of Liberty on your left. This symbolizes the break the American Revolution made between the Crown and the 13 colonies. Canada and Australia did not have a similar cut of sovereignty until 1982 and 1986 respectively.   

But as wars are prone to do, the Great War changed things significantly. Both Canada and Australia made important and distinctive contributions – Canadians at Vimy Ridge and Australians (and New Zealanders) at Gallipoli – and rightfully took their places at the table when sorting things out at Versailles in 1919. This, in turn, led to an increased desire for autonomy and was eventually realised when the Statute of Westminster 1931 was passed by the British parliament. It declared in law, what was already a de facto truth: Canada and Australia were equals to the United Kingdom.

But is often the case with law, things were not that simple. Because the Westminster parliament was sovereign the Australian and Canadian parliaments were still creations of that body, even the Statute did not break the legal connection when they were adapted by Canada and Australia. Simply put, if Britain wanted to repeal the Statute of Westminster, and have Canada and Australia join them again as subservient colonies, it was legally possible because of the doctrine of the Sovereignty of Parliament. Practically impossible, yes, but still legally so.  

Pierre Trudeau, the Prime Minister of Canada talks with Guardian in Marvel's Uncanny X-Men #110 (March 1977). Art by John Byrne. It is actually an accurate depiction of what Trudeau looked like.

Trudeau was the driving force behind the patriation of the Canadian constitution. Art again from Uncanny X-Men #110 (March 1977)

Which brings us to the 1980s and the wave of patriation efforts that followed, starting in Canada with Prime Minister Pierre Trudeau. This former legal scholar wanted to bring home the constitution and sever all remaining legal ties to the British parliament. After substantial negotiations with provincial political leaders, this happened in 1982 with the passing of the Canada Act 1982 (UK) in London and the Constitution Act, 1982 in Ottawa. This was soon followed with the similar Australia Act 1986 (UK), and Australia's own Australia Act 1986. These four pieces of legislation changed the nature of the legal relationships between Canada and Australia and cut all sovereign ties with the former mother country's parliament. So while both countries kept Queen Elizabeth II as their head of state, she became the Queen of Canada and Queen of Australia respectively. Which takes us back to our original question. Could the Queen or British Prime Minister step in to govern Australia if there were no woman in Australia capable of doing so?

Personally, I would say this is both politically and legally impossible. While, I'm not overly familiar with Australian political affairs, I’m sure there are many well qualified women who would step in and run the federation if there were no men left alive. Moreover, although she was recently removed by a vote of her own party, a woman named Julia Gillard was prime minister from 2010 to 2013. Further to that, the current Governor-General of Australia (the Queen's representative) is also a woman. And while this position is ostensibly appointed by the Queen, by constitutional convention it is actually the prime minister who makes the pick. Because of this, it would be highly irregular for the Queen to appoint "her own Governor-General" after decades of deferring to her prime ministers. Because of this convention, even the most junior female minister of state in the government of Australia has a more practical right to choose a Govenor-General than the Queen. 

Also, the republican movement which has been much more active in Australia than in Canada (a 1999 referendum to replace the Queen was lost by a 54.8 to 45.2 margin) would  take umbrage with the legally impossible notion that the British could step in and make policy decisions on behalf of the Australian government.  

So there you have it. I don't think the scenario presented by Brian K. Vaughan could really happen. But it was fun thinking about it, and as I hope you enjoyed learning a little bit about British, Australian and Canadian constitutional law in the process. Of course, this slightly inaccurate seven panel exchange does not take anything from what is an amazing 60 issue story and I encourage any comic reader to check out Y: The Last Man. Thanks again for stopping by WGTB and have a great day.