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.