What's the Deal with Canada's Queen?
© Richard Culpeper


What is the deal with Canada'a Queen?  It’s all tied up in Canada’s political history, its Constitution, and it’s Governor General.

Canada’s most recent Constitutional Amendment was made to build some non-religious schools in Newfoundland, and Canada’s second most recent Constitutional Amendment was to made to build a bridge to Prince Edward Island.  Let’s just say that our Constitution is interesting and unique, and is by no means fixed in stone.

Not only do we have a stack of Constitutional Amendments, but we have a whole trunk full of Constitutional Documents which either may or may not have the force of law (depending on whether or not they were made before 1867, or if pre-Confederation, whether they were included by reference), going right the way back to 1670, when a company was given the right to make and enforce laws across much of what is Canada today.

We even have many traditional ways of doing things that are not written down anywhere in any laws.  For example, by unwritten convention we have a Prime Minister whose office was only relatively recently was mentioned in a Constitutional Document (in 1982), and even then was only mentioned in passing without speaking of what the office is, what it does, and where it finds its authority.

In short, our Constitution is not just one document, and is not just a set of documents, but rather is it a combination of written documents and unwritten conventions.  We have not yet even agreed upon an amending formula, and Quebec has not signed on for the Constitution by which all of Canada is governed.  Our Constitution has been developing for hundreds of years, but still is in its infancy.

To keep it as simple as possible, let’s start with the assumption that for whatever reason, Canada has always had a ruling Monarch who did not live here, so the ruling had to be done through an assistant in Canada called a Governor General, and in the provinces (the states within Canada) through Lieutenants Governor.  These offices were simply extensions of the pre-Confederation tradition of using Governors in the colonies.  The question then is just what these Governors General are authorized to do.  To answer this, we have to look at who has the power to make laws.

The British Parliament used to have power to make laws over Canada, and the British Courts and the British Judicial Committee of the Privy Council  used to have the power to interpret laws in Canada.   Through a gradual process lasting well over a hundred years, Canada slowly took over all these powers.  There was no single event that gave us independence.

Our fist big step, oddly enough, was the incorporation of a company in England back in 1670, in which the King gave the corporation the power to make and enforce laws in what is now much of Canada.  The company was named “The Governor and Company of Adventurers of England tradeing into Hudsons Bay”, and is now known as the Hudson’s Bay Company.  The territory was known as Prince Rupert’s Land, because the company was owned by the King’s brother and his buddies.  The territory consisted of the Hudson’s Bay watershed (much of northern Ontario and north-western Quebec, and a tad of Minnesota).  At the time, the Maritimes and the St. Lawrence were held by France.  (Or to be truthful, all of Canada was held by numerous First Nation’s, France had a few villages, and England had nothing.)  The document (which no longer holds Constitutional authority) was the Royal Proclamation (Proc., Charles II, Eng., 1670).

The next big step was a period of colonization, primarily in the Maritimes, and then up through Upper and Lower Canada (today’s Ontario and Quebec).  That took a couple of hundred years of fighting and trading with France.  Along the way, the colonies each developed greater or lesser degrees of legislative and judicial self-determination.  The Maritimes developed representative government early on through legislative assemblies:  Nova Scotia in 1758, Prince Edward Island in 1773, and in New Brunswick in 1786.  Quebec obtained representative government later in 1791, for it’s political development had been hampered by the Quebec Act (G.B., 1774) after Great Britain won Quebec from France in the Seven Years War.

The impetus to bring representative government to Quebec was due to American refugees, who flooded across the border in and about 1783.  Many were placed in the western wilderness of Nova Scotia, which was severed to form New Brunswick, and many were placed in the western wilderness of Quebec (in what is now southern Ontario).  To tidy things up, Great Britain’s Constitution Act (G.B., 1791) split Quebec into Upper Canada (now Ontario) and Lower Canada (now Quebec), granting representative government to both.

Even with representative government (elections), there were problems with Governors and their councils not doing what the elected representatives asked them to do, and further problems with the limits on who could vote (landowners rather than landless).  Representative government was not necessarily responsible government, for the Governors were not responsible to the elected representatives.  After the defeating the Americans in 1813, there was a booming economy and significant expansion into the wilderness through Crown land grants.  Those who held the colonial Governors’ ears obtained land grants, and became ever more rich and powerful. 

This led to struggles for responsible government in the early and mid-19th century.  In Lower Canada, Louis Joseph Papineau led a revolt against le Chateau Compact in 1837, and shortly thereafter in Upper Canada, William Lyon Mackenzie led a revolt against the Family Compact.  The first colony to win responsible government was Nova Scotia in 1848, through the efforts of Joseph Howe, a poet, newspaper man, dueller, and politician, who took a more peaceful approach.

Responsible government meant that the Governors now had to be responsible to the elected representatives.  The elected representatives now had the right to not only to be listened to by the Governors, but also to demand that the Governors put in place the laws they had passed.

The next big step was the Confederation of some of the colonies into the Dominion of Canada in 1867 through the United Kingdom’s British North America Act (U.K., 1867) (but now called the Constitution Act (U.K., 1867) following its recent incorporation by reference into Canada’s Constitution Act (Can., 1982) from is Schedule B to the United Kingdom’s Canada Act (U.K., 1982) – simple, huh?  Don’t worry, well come back to it later).

This document (the British North America Act (U.K., 1867), now the Constitution Act (U.K., 1867) as part of the Constitution Act (Can., 1982)), is arguably Canada’s most important Constitutional Document, for it defined which powers the federal government holds and which powers the provinces hold.  It set out that we should have a British style Parliament (thus no one bothered to actually specify a Prime Minister, simply because it was implied).  It set out the role of the Governor General (and provincial Lieutenants General), who pretty much carried on as the colonial governors had done after responsible government had been variously instituted.  The long and short of it is that through this act, the Monarch was confirmed as being the head of Canada’s government (s.9), was represented in Canada by the Governor General (s.10), was head of our Armed Forces (s.15), and most importantly, was responsible to the Canadian Parliament (s.12): “All Powers, Authorities, and Functions . . . shall, as far as the same continue in existence and capable of being exercised . . . be vested in and exerciseable [sic] by the Governor General . . . subject nevertheless . . . to be established or altered by the Parliament of Canada.”  Since then, the role and powers of the Monarch have not changed that much.

You’re probably wondering why I inserted so many ellipses in the citation of s.12 of the British North America Act (U.K., 1867).  That’s because despite having its own Constitution, Canada still was subject to laws which had been made in the United Kingdom, and which were yet to be made by the United Kingdom.  In other words, although we had responsible government for all intents and purposes, the United Kingdom could still make laws which we would have to follow if they wanted us to.  Our protection against the Crown was really just a reflection of the protections in the United Kingdom’s own Constitutional democracy, which by then had pulled the teeth of the Monarchy.

Over the next century, the United Kingdom gradually lost the authority to make laws binding on Canada.  Their Statute of Westminster (U.K., 1931) removed the legislative authority of the United Kingdom Parliament over the Dominion of Canada (as well as the Dominions of Australia, New Zealand, South Africa, and Newfoundland, with the exception that the United Kingdom retained the power to amend our Canadian Constitution’s amending formula.  Then, as now, Canada was not able to agree internally on an amending formula, so that issue was left alone for another time.)  Specifically, the Statute of Westminster (U.K., 1931) tossed out the Colonial Laws Validity Act (U.K., 1865); permitted Canada to make laws that might be repugnant to the United Kingdom; greeted Dame Opal; permitted the Canada to repeal Canadian jurisdiction for United Kingdom laws repugnant to Canada; permitted Canada to make its own treaties; and prohibited the United Kingdom from making any more laws with jurisdiction in Canada unless Canada specifically agreed.

Note that the Statute of Westminster (U.K., 1931) would have been meaningless unless the Governor General was entirely responsible to the Canadian Parliament.  Without such Constitutionally enshrined responsibility (both through the British North America Act (U.K., 1867), and through the Constitutional Conventions developed in Colonial times and continued since then) it would have been possible for the Governor General to bring in British law against the wishes of Canada’s Parliament.  Fortunately, responsible government through the Constitutional Conventions and the  British North America Act (U.K., 1867) were well established by the time of the Statute of Westminster (U.K., 1931), so there was no question of the Governor General having any power at all to go against the Parliament of Canada.

It still took some time to become clear of British laws and the British legal system.  In general, the old British laws still applied until they were either specifically revoked, or became outdated as new Canadian laws took their place.  Amendments to the British North America Act (U.K., 1867) had to be made for us in the United Kingdom at our request for housekeeping matters and also to let us bring in more of the colonies and territories into Canada.  This was because we had not taken care of the amending formula back in 1931.  There was never any question of the United Kingdom not passing anything we requested pertaining solely to Canada, so it is debatable if by Constitutional convention they had the power to refuse us.  Fortunately, the issue was never raised.

Even then, we were not totally free of the United Kingdom.  Although we had the power to establish a Canadian Court of Appeal through the Constitution Act (U.K., 1867), and did just that a few years later in creating the Supreme Court of Canada (Supreme Court Act (Can., 1875)).  Even then, however, our Supreme Court of Canada decisions could still be appealed to the Judicial Committee of the Privy Council in the United Kingdom.  This foreign Judicial Committee's superior appellate jurisdiction over Canada for criminal appeals ended in 1933, but due to the depression and the war getting in the way, its jurisdiction over our civil appeals did not end until 1949.

Just to tidy up things like this, in 1947 the King executed “Letters Patent Constituting the Office of Governor General of Canada” (George VI, Can., 1947).  We’ve always had Governors or Governors General, so there is nothing special about the date, and the document was not definitive, for it was made by Royal Prerogative within a Constitutional context, but more than any other document, it set out how the Monarch does business in Canada.  It pretty much reflected the British North America Act (U.K., 1867), and the similar Letters Patent (George V, Can., 1931) made in anticipation of the Statute of Westminister (U.K., 1931).  Notably, it specified that the powers were limited to powers authorized by Canada: “And We do hereby authorize and empower Our Governor General, with the advice of Our Privy Council for Canada or of any members thereof or individually, as the case requires, to exercise all powers and authorities lawfully belonging to Us in respect of Canada, and for greater certainty but not so as to restrict the generality of the foregoing to do and execute, in the manner aforesaid, all things that may belong to his office and to the trust We have reposed in him according to the several powers and authorities granted or appointed him by virtue of the Constitution Acts, 1867 to 1940 and the powers and authorities hereinafter conferred in these Letters Patent and in such Commission as may be issued to him under Our Great Seal of Canada and under such laws as are or may hereinafter be in force in Canada.”

In other words, the Monarch rules in Canada through the Governor General, and the Governor General is bound by the Constitution of Canada.  Note that there are no ellipses in this cite this time, for by 1947 Canada was well past the Statute of Westminster (U.K., 1931).  What is amusing and important about this document is that it specified that the Governor General can not quit or leave without the permission of the Canadian Prime Minister, and that the execution of the Letters Patent was performed at the command of the King by the Prime Minister of Canada, despite the Office of the Prime Minister of Canada never once having been mentioned in any Constitutional Document up to that time, thus reminding us that in addition to written Constitutional Documents, we are have unwritten Constitutional Conventions of tremendous importance.

What is also important about Letters Patent Constituting the Office of Governor General of Canada (Geo.VI, 1947) is that it confirms that the Governor General appoints judges (obviously within the Constitutional context of having been chosen by the Canadian government).  This helps reinforce that the judiciary is bound not only by the laws of the day, but also by the common law, which has tremendous depth and stability.  A discussion of the differences between provincial courts (which are pretty much statute driven) and superior courts (which can make full use of common law, equity, and whatever else can be pulled out of the corners of the world’s judicial systems) can wait for another time, but for now just go by my word that having the powerful judges appointed through the Governor General at the direction of the government gives them broader power and greater independence than if the Crown was not part of the equation.

Finally, what is important about the Letters Patent Constituting the Office of Governor General of Canada (Geo.VI, 1947) is that it sets out a chain of command in case the Governor General is unable to continue (remember that the Governor General represents the Crown as Head of State and as Head of the Armed Forces).  The next person in line is not some other appointee by either the Crown or the Government.  That would be too risky, for what if either the Queen or the Prime Minister wanted to make a power grab?  To provide some stability, the temporary replacement is to be the most senior member of the Supreme Court of Canada.  If anyone makes an unconstitutional power grab and in the process eliminates the Governor General, then the top Judge steps in.  Since Supreme Court Judges are very secure in their tenure, it is unlikely that they would have been removed prior to such a crisis.

In 1982, Canadian Prime Minister Pierre Eliot Trudeau made the most recent big step forward with our Constitution.  He put an end to this business of Canada going to the United Kingdom to have it make amendments to our Constitution.  He arranged for the Canada Act (U.K., 1982) to be passed in the United Kingdom, and the Constitution Act (Can., 1982) to the passed in Canada.  It took some fancy and confusing writing (thus this business of schedules within schedules of acts within acts), but the net result was that the British North America Act (U.K., 1867), as amended, became the Constitution Act (U.K, 1867), as amended, and was rolled into the Constitution Act (Can., 1982), by way of the Canada Act (U.K., 1982), along with a new Charter of Rights and Freedoms (Part I, Schedule B to the Canada Act ( U.K., 1982) as incorporated in the Constitution Act (Can. 1982)).  There, I promised we would get through that, and now we have.  And yup, the official name of our hugely important Charter of Rights and Freedoms is “Schedule B” to some other country’s law.  Sort of Canadian, don’t you think?

At last, for better or worse, Canada had cut the umbilical from the United Kingdom Parliament.  From this point in 1982 on, the only tie to the old world is that the Queen of Canada happens to live in a foreign country, rather than in Canada.  That foreign country has no legislative, executive or judicial involvement or power concerning us, and has no potential for such power.  When the Queen got on the plane to fly back to the United Kingdom after irrevocably proclaiming (Proc., Eliz. II, Apr. 17, 1982) our Constitution as a fully independent nation, Canadian Prime Minister Pierre Elliot Trudeau pirouetted on the Tarmac.

It makes no difference whether the Queen of Canada lives in a Castle in England with the Royal Family, or in a mansion in Ottawa with her Governor General, or in isolation in a tent at the abandoned York Factory on Hudson’s Bay where the Royal Charter was first proclaimed in Canada over three hundred years ago (Proc., Charles II, Eng., 1670).  The Queen of Canada is now entirely a Canadian creature, with only powers as permitted by the Canadian Constitution, and with limitations of the Canadian Constitution.

Is this a good or a bad thing?  That remains for another discussion.  Some find the thought of a hereditary non-resident monarch to be offensive by its very nature.  Some simply find the Royals off-putting by their personal habits.  Others prefer the stability that such a Constitution affords by way of providing a brake on unconstitutional acquisitions of power by governments, and by providing a stable framework and procedure during times of governmental transition or Constitutional crisis.  Either way, the Crown is now a Canadian Crown, fully under Canadian Constitutional control, to be modified as we please.