New Constitutionalists: “Canada is Fake” From the Right
A bizarre constitutional interpretation is becoming a linchpin for Canada's anti-government right
In my previous part of this series on Canada’s anti-government right I took a look at organized pseudolegal commercial arguments (OPCAs). Here I will examine a similar and related phenomena that also relies upon fringe legal and constitutional theories that proponents believe delegitimize the government. Unlike OPCAs however, proponents do not necessarily view these theories as a “get out of jail free” card.
There is a unique anti-government current that has been becoming more prevalent in the “patriot” movement, that denounces not just Trudeau’s Liberals but the Canadian government as a whole. On the Quatloos forum Donald Netolitzky, one of the top authorities on pseudolaw in Canada, has dubbed them the New Constitutionalists, so I will refer to them as such. I will summarize some of their central arguments and rhetoric as follows:
Canada is not really a sovereign country, and never stopped being a British colony
Canada never confederated, or did not become a true “Federal Union” in 1867 or legitimately afterwards
Canada does not have a real (written) constitution, the British North America or Constitution Acts do not count
Provinces and territories are or should legally be considered sovereign nations according to the 1931 Statute of Westminster, paragraphs 2 and 7(2), which supposedly granted them this status
Because of this ambiguous constitutional situation, Canada is ruled by an illegitimate de facto government
These problems can be solved by having the provinces ratify a new constitution to build a de jure government. What this constitution will entail, whether the provinces will unify or go their own separate ways, is for the people to decide.
This bizarre ideology has had some presence in Canada’s far-right “patriot” movement for the past couple of years, but it has remained in the background until now. Since the COVID-19 pandemic it has become very visible in Canada’s anti-lockdown movement. Doug Force who runs some online platform called “The Myth is Canada” has been one of its central advocates online, but on the ground a group called Unify the People has been the more noticeable advocates of it. I will have more to say about these groups in a moment, but for now let’s engage in a little geneaology on this phenomenon.
History
Where do these ideas originate from? They are surprisingly quite old, going back several decades to advocates of the Social Credit parties. The earliest espousal of these arguments I could find go back to the idiosyncratic constitutional theories of Russell Rogers Smith, who argued them in the 1937 pamplet entitled “Alberta has the Sovereign Right to Issue and Use Its Own Credit.” The arguments he makes are essentially the same as what these groups say, although his is solely a question of law and does not dwell too much into international conspiracy theories. Smith would expand upon these ideas somewhat in another short book entitled “Ho, Canada!” released in 1965.
Russell Rogers Smith’s ideas were also elaborated upon in a 1977 pamphlet by a 1935-1949 Social Credit Party MP Walter F. Kuhl entitled “Canada: a Country Without a Consitution.” Kuhl’s foreword to the pamphlet credits Smith as being his private tutor.
These views would also be advocated by Elmer Knutson, who led the Western Canada Federation (West-Fed) in the 1980s. It seems to be a pattern that this thinking returns in periods of Western alienation. Additionally, Knutson was also involved in Social Credit. He would later found the Confederation of Regions party.
Ho Canada! Was digitized into PDF and put online by Jean-Paul Rheaume, who included his own edits, apparently around 1996. Rheaume also says he ran as a candidate for a Social Credit party, albeit in Quebec. Doug Force did an interview with Rheaume where he credited his digitizations for his discovery of R. Russell Smith’s work. In the interview Rheaume also mentioned his own attempts at tax evasion.
According to Donald Netolitzky, Alberta has the Sovereign Right to Issue and Use Its Own Credit and Canada: A Country Without a Consitution were reprinted in 1998 together as “The Missing Key to Canada’s Future” by anti-Semitic publisher Ron Gostick’s Canadian Intelligence Service company. Netolitzky describes the reprint as “an important document in the Detaxer movement period.”
Another booklet by a “Patrick Anthony Ellis” from 2006 titled “Canada: Fabrication of a Nation” uses these arguments. Interestingly, Ellis puts a pan-Indigenous twist on this and portrays Confederation as a continuous genocide against Indigenous people, but does not convincingly account for pre-Confereration colonialism. Ellis includes OPCA concepts such as “straw-man theory,” an argument from the Sovereign Citizens. It also goes much further in his conspiracy theories that were absent in the previous pamphlets, including citing a work about the Rockefeller family by the fascist conspiracy theorist Eustace Mullins and claiming the Queen pushes feminism to destroy the nuclear family. I could not find much about Patrick Anthony Ellis online other than another online booklet by him from 2010 titled “New World Order: Old World Concentration,” but some of the samples of OPCA cases in Meads v. Meads appear to reference him as an OPCA litigant, unless there’s another Patrick Ellis in the business.
Despite all these grandiose claims of Canada’s constitutional status, to my research there have only been a few attempts to argue these claims in court, and on both occasions I’m aware of involved detaxer David Kevin Lindsay using it to argue the Criminal Code and Income Tax Act should not apply to people. As you would guess he did not succeed.
Modern Times
As stated before, Doug Force who runs something called “The Myth Is Canada” has been the biggest online figurehead of the New Constitutionalists. Force had previously been close with the Islamophobic patriot group Canadian Combat Coalition, speaking at their 2019 Ottawa rally. Recently he has attended anti-lockdown rallies in Toronto and the July 1st one in Ottawa. So it has been growing within Canada’s “patriot” movement for the past few years. And recently, he has become something of a ideological figure, doing weekly “round table” livestreams with members of the Canadian Revolution camp formerly in Ottawa, anti-lockdown activists, patriot movement figures, and other conspiracy theorists. Ed Jamnisek, a member of multiple anti-Muslim protest groups, has claimed to have been involved in organizing guest appearances for the round table discussions.
On the ground, the most noteworthy group has been Unify the People. I first saw the website for this group being promoted on those big signs regularly used at Yellow Vests Calgary’s weekly protests. One sign the Yellow Vests Calgary use speaks of a draft constitution for the future Republic of Alberta, another gives a challenge offering a $10,000 reward to anyone who can show Canada’s “Confederation Papers.” Unify the People is led by Dallas Hills, a previous candidate for the BC Refederation Party, who often refers to himself and his followers as “Sovereigns.” Curiously, Hills appears to have had a previous involvement in Occupy Victoria, he says the Occupy movement was hijacked, and an old Vimeo account apparently belonging to him has uploaded anti-Semitic material.
Both Dallas Hills and Doug Force have called for uniting forces with various other movements; anti-lockdown, anti-vaxxers, anti-5G, Yellow Vests, and firearms rights advocates, and other vaguely anti-establishment conspiracist movements. So the New Constitutionalists could potentially be an ideological glue to bring various different things together. However, that can come at the expense of dilluting their message to attain a mass appeal. Dallas Hills has recently made videos venting his frustrations that anti-lockdown protests are not adopting his calls to ratify a new constitution as the solution.
Last but not least is the Canadian Revolution group, which calls for all politicians to resign. This group had been active on Facebook but started camping out in front of Ottawa’s war memorial after the July 1st rally, until it was forcibly closed down by police in mid-October. It gained notoriety for their relationship with and support for Brian Kidder, the man who repeatedly attempted to perform citizen’s arrests on politicians. Some watchdogs and journalists tried to emphasize the Canadian Revolution’s connection to QAnon; there was at least one true believer and others who bought into similar and related conspiracy theories, but the overall pseudolegal claims that was central to their message got overlooked. They even had chants going “hey hey, ho ho, de facto government’s got to go.”
Theory and Practice
While this rhetoric is becoming more noticeable, many who spout it do not seem to stop and think clearly about what it really means and are quite ideologically confused. It is not rare for me to see people, like those who were part of the Canadian Revolution camp, go from denouncing the de facto government in one breath to supporting politicians who sit in or run for federal office in another afterwards (who under their arguments would be no more legitimate than a Liberal). Or they will say Canada has no constitution one day then denounce “unconstitutional” laws the next.
Even though the New Constitutionalists’ arguments only amount to a legal technicality from 89 years ago, its proponents often have utopian expectations, thinking every law, policy and social fact they disapprove of from refugees to gun control can come down to it. They don’t seem to factor in Canadian public opinion at all, thinking the Canadian people agree with many of their fringe positions. A new constitution might even be less favourable to them, if it had any democratic input. Additionally, many of the COVID-19 measures they disapprove of do not come from the federal government but provincial and municipal levels.
Some New Constitutionalists also take particular umbrage at the monarchy, using it as further evidence Canada is not really sovereign. Even if we grant the arguments of the New Constitutionalists, it is not clear why they think getting rid of the Queen would result in all those “globalist” NGOs they despise and claim runs the government disappearing. The Queen has been little more than a rubber stamp for all these years.
Far-right objections
The New Constitutionalists have had some critiques within “patriot” circles. The National Citizens Alliance is one of the few sources to have critiqued these ideas, refuting some of their legal theories, but theorizing that these claims serve globalist interests by undermining Canada’s claims to soveriengty. The “Plaid Army” network of YouTubers have dismissed their solutions to contemporary problems as impractical or insufficient. Rick Boswick accepted some elements of their ideology, such as the claim that the government of Canada is de facto, but still sees supporting fringe parties like the PPC as beneficial, fearing an attempt to overthrow government would leave an opening for a UN or Chinese takeover. Writers for the conspiracy theorist Civilian Intelligence Network have called Unify the People a New World Order front while putting many false claims based on tenuous connections to the Jesuits and George Soros.
Some other proponents of the New Constitutionalists have also voiced criticisms of the parliamentary Wexit movements, noting that any attempt at separation done through the appropriate legal channels could still be denied by Ottawa under the Clarity Act. While there can be appeal and overlap with separatist movements, the New Constitutionalists, if they take their ideology seriously, will not be satisfied by their reformist attempts at creating regional bloc parties within the House of Commons.
If one dives into the source material, it is also apparent that the views of R. Russell Smith clash with Canada’s far-right on John A. Macdonald. Smith saw Macdonald as an opportunist who duped Canada out of its sovereignty and preventing it from becoming a proper Federal Union, rather than a “father of confederation” to be defended against cancel culture.
Legal Problems
Not having any legal background, I have avoided getting into the legal merits or rather lack thereof for the New Constitutionalists’ claims regarding the Statute of Westminster. I have noted David Kevin Lindsay’s attempts to invoke these views to argue that all federal laws enacted since 1931 including the Income Tax Act are invalid, but his appeals were dismissed on both occasions. In such cases they mainly dismissed him based on his claims about the role of the Governor-General and how Canada’s government works. But they did not specifically address his claims that the Statute of Westminster was supposed to give sovereignty to the provinces, which should merit further attention.
With my limited abilities, I have been able to come across one satisfying attempt to address these claims. It comes from a grad student thesis from 1982 by David Hubert Geoffrey Nanson, about leadership conflicts within Western separatist groupss. It is titled “Disunity in transition : a comparative analysis of organizational, policy and leadership conflicts within Western Separatist Groups -- West-Fed and WCC.” The thesis mentions Elmer Knutson’s idiosyncratic beliefs on the subject:
Although Knutson's interpretation of the 1931 statute was obviously appealing to some western Canadians, it too was devoid of any substance. The intent of the Statute of Westminster was to have Britain relinquish, symbolically and legally, all vestiges of political control over the Commonwealth. Prior to 1931 Canada had allowed Britain to control (at one time or another) foreign affairs and the navy, as well as bind Canada to any international agreements to which Britain was a signatory. With the Statute of Westminster, control over those subject matters formerly held by Britain was granted to that level of government which had jurisdiction under the enumerated heads of ss. 91 and 92. [of the British North America Act - Drew] To saddle the statute with an intention to cede all power to the provinces, as Mr. Knutson did, was a practice which verged on fabrication. It mattered not that prior to 1867, Ottawa was not a British colony: what was important was that in 1931 Ottawa possessed legitimate jurisdiction over the subject-matters of s. 91, and thus became the beneficiary of the statute's provisions.
The thesis goes on to explain that Knutson’s contradictory beliefs on separatism and the status of Confederation were confusing and diminished his credibility with West-Fed’s rank and file, asking “If there is not a Canada, from what did West-Fed think they would secede?“ West-Fed would be surpassed by the Western Canada Concept as the separatist force in Alberta as a result.
But so far, a lack of credibility has not been a problem for the New Constitutionalists.
UPDATE: Since writing this, Dallas Hills has been ousted from Unify the People and formed another similar group called “We the People Constitutional Conventions.” More information on this split can be found in this Twitter thread: