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FALQs: Canada and the Monarchy

The following is a guest post by Michael Chalupovitsch, a foreign law specialist at the Law Library of Congress covering Canada and Caribbean jurisdictions. This blog post is part of our Frequently Asked Legal Questions (FALQs) series.

On September 8, 2022, Queen Elizabeth II, Queen of Canada, died and was immediately succeeded by King Charles III. Many look at the term “Queen of Canada” quizzically. Yes, Queen Elizabeth II was queen of the United Kingdom, but she was equally, and separately, Queen of a number of constitutional monarchies around the world, ranging from Australia to the Bahamas, to, yes, Canada. This blog post answers frequently asked legal questions concerning Canada and the monarchy.

 

His Majesty during the 2017 tour of Canada, Government of Canada, Used under Crown copyright rules, His Majesty the King in Right of Canada, as represented by the Minister of Canadian Heritage, https://www.canada.ca/en/canadian-heritage/services/royal-family/members-royal-family/king-charles-iii.html.

Does Canada have its own head of state?

Canada’s head of state is King Charles III. In 1953, the Canadian parliament enacted the Royal Style and Titles Act, establishing the royal title of the Canadian sovereign. The act designated Elizabeth II, as “by Grace of God of the United Kingdom, Canada and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith.” King Charles III was proclaimed King of Canada in Ottawa on September 10, 2022, after a meeting of the King’s Privy Council for Canada, the federal cabinet.

Since the colonization of Canada began as New France, it has continuously been governed under a monarchical system of government. The British Crown was established as the governing authority in 1763 after the conquest of New France. Canadian confederation occurred in 1867 when a number of British colonies united to create the Dominion of Canada, but its inhabitants remained British subjects, and the Canadian government had limited control over its foreign affairs, with its constitutional document, the British North America Act, being an act of the British Parliament. The final link to the British parliament was severed in 1982 with the passage of the Constitution Act, 1982, formally establishing a Canadian-made constitutional system.

In 1931, the Statute of Westminster established the principle that the British parliament would not legislate on behalf of the other dominions without their consent. The preamble stated that the “Crown is a symbol of the free association of the members of the British Commonwealth of Nations,” and any law concerning changes to succession to the Crown require the consent of all the dominions. This also established the principle of separate legal monarchs for each dominion, united in a single person. This concept was further solidified during the 1936 abdication crisis, with Canada assenting to King Edward VIII’s abdication separately from the United Kingdom. Notably, this principle only applied to countries with primarily European populations or European-dominated governments: Canada, Australia, New Zealand, Ireland, and South Africa.

Given that the Canadian monarch lives in the United Kingdom, they are represented in Canada by a governor-general who has been delegated many of their powers in his absence, a practice formalized in 1947 with Letters Patent being issued outlining their powers. Since 1952, Canadian citizens have exclusively held that role. In 2021, the monarch, on the advice of the prime minister, appointed the first Indigenous governor general, Mary Simon.

Each province also has its own lieutenant governor who represents the monarch in the provinces, with each province’s representative of the monarchy being a separate legal entity, governing on the advice of its own head of government known as a premier.

What role does the Crown play in Canada?

Members of the royal family make regular trips to Canada and are honorary patrons of many organizations. According to the Constitution Act, 1867, the monarch, represented by the governor-general, is formally the commander-in-chief of the Canadian Armed Forces, though in practice command is exercised through the Chief of the Defence Staff and the Minister of National Defence. Members of the royal family also have personal relationships with a number of military units, serving as colonels-in-chief.

The monarch also embodies the Canadian state and represents Canada abroad. For example, on her 1957 tour of the United States, Queen Elizabeth II was acting in her capacity as Queen of Canada and was advised by the Canadian government rather than by British officials.

Her Majesty Queen Elizabeth II and President D.D. Eisenhower at the opening of the St. Lawrence Seaway, June 26, 1959, Duncan Cameron, Library and Archives Canada / PA-121475, No restrictions on use, https://recherche-collection-search.bac-lac.gc.ca/eng/home/record?app=FonAndCol&IdNumber=3401076.

In addition to ceremonial occasions such as visits of members of the royal family to Canada, the Crown fulfills many constitutional roles. Canada’s parliament formally consists of the Senate, the House of Commons, and the monarch. All bills that pass the two chambers must be assented to by the monarch, or the governor general, before becoming law. Legally, the monarch or governor general can refuse to grant royal assent, however, this power is rarely invoked, and the monarch and governor general act on the advice of the prime minister. The Crown also opens each session of parliament by reading a speech from the throne, written by the prime minister’s office, outlining the general policy of the government.

The Crown’s paramount responsibility in Canada is ensuring that there is always a government in place. It is the Crown that appoints prime ministers and their cabinet. The Crown is important to the health of Canada’s democratic institutions by being a non-partisan actor that represents the Canadian state regardless of the government of the day. The prime minister is chosen based on their ability to command the confidence of a majority of the House of Commons. This is usually the leader of the party with the most seats, but the governor general or lieutenant governor can choose another person if it can be demonstrated that the other leader has the confidence of the House. This was done, for example, in British Columbia after the 2017 election, with the New Democratic party being given the mandate to govern despite having fewer seats than the BC Liberal party, because of an agreement the New Democratic party had struck with the Green Party to support critical legislation and budgetary policy.

The Crown also acts in a judicial role. It is the Crown that prosecutes criminal matters, and proceedings against the government in court are formally against the Crown.

How is succession to the Crown determined?

Succession to the Canadian Crown is determined by the Succession to the Throne Act, 2013. The act was passed in response to the agreement made by the heads of government who recognized Queen Elizabeth II as their head of state at the 2011 Commonwealth Heads of Government Meeting in Perth, Australia. The act was also passed in an effort to end gender discrimination in succession laws and the rules disqualifying an heir to the Crown from marrying a Roman Catholic.

The act recalled the Statute of Westminster’s exhortation to ensure that all the realms are united with respect to succession issues and that any changes to succession to the Crown should be enacted by all realms’ parliaments. The act gave Canada’s formal assent to changes made in British law. Similar laws were enacted in other Commonwealth realms such as Australia and New Zealand.

The Canadian act was the subject of a constitutional challenge by law professors who argued that any changes to the Crown succession laws required a constitutional amendment. They claimed that changing the succession laws through an ordinary piece of legislation bypassed the unanimous approval by all the provinces required by a constitutional amendment to affect the “office of the Queen.” Furthermore, the plaintiffs argued that the changes infringed on sections of the Canadian Charter of Rights and Freedoms concerning equality and freedom of religion since the monarch is still required to be of the Anglican faith. Finally, they claimed that the law itself was unconstitutional since it implemented British law that was drafted solely in English and not in both English and French as required by the constitution.

The Quebec Court of Appeal determined that the term “office of the Queen” does not refer to the legal person who occupies the office, but rather the duties and powers of the office, which remained unaltered. The court also found that succession to the Crown is not covered by the Canadian Charter of Rights and Freedoms, since there are no specific Canadian laws concerning succession, except for the principle of symmetry with the hereditary principles of the United Kingdom’s succession laws. The court also held that the English-only British succession law itself was not incorporated into Canadian law and that furthermore a bilingual version of the British law was presented before parliament. Leave to appeal to the Supreme Court of Canada was denied, thus putting an end to the challenge.

Can Canada become a republic?

A constitutional amendment is required to change Canada’s system of government from a constitutional monarchy to a republic. Amendments concerning the “office of the Queen” require the consent of both houses of parliament, as well as all of the provincial legislative assemblies. The views of the First Peoples of Canada and their relationship with the Crown would also need to be heard and accommodated.

This is not the case for all Commonwealth realms, especially those that are not federal countries. Barbados, for example, abolished the monarchy through a parliamentary vote. Antigua and Barbuda, Belize, and Jamaica seem likely to pursue a similar avenue. Even the United Kingdom can abolish the monarchy through a parliamentary vote.

Further resources on the Monarchy of Canada:

Crown of Maples: Constitutional Monarchy in Canada, Department of Canadian Heritage, 2015.

Michael Jackson, ed., Royal progress: Canada’s monarchy in the age of disruption, Toronto, Ont.: Dundurn Press, 2020, //lccn.loc.gov/2019458951.

Eugene A. Forsey, How Canadians Govern Themselves, 10th ed., Ottawa, Ont.: Library of Parliament, 2020.

Guide to Law Online: Canada

Global Legal Monitor: Canada

In Custodia Legis: Canada

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