The Queen of Canada is dead; long live the British Queen

Why the Conservatives must rethink their approach to succession

Britain's Prince William stand next to his wife Kate, Duchess of Cambridge as she leaves the King Edward VII hospital in London on Dec. 6, 2012. (Alastair Grant/AP))

Canada’s most monarchist government in decades has just dealt a serious blow to the Canadian Crown. In an effort to quickly enact changes regarding royal succession, the government has introduced a bill that undermines the concept of a truly independent Canadian Crown, the foundation of Canadian sovereignty. Equally troubling, the government claims that altering succession to the throne does not require a constitutional amendment. In making this argument, the government has overlooked the very nature of the Crown in law and the Canadian constitution. However commonsensical the proposed changes to the law governing succession may be, such a cavalier approach to the Crown, to the foundation of sovereign authority of and in Canada, merits scrutiny.

Heritage Minister James Moore laid out the government’s thinking at a press conference this past Wednesday. According to the minister, succession to the throne is not a matter of Canadian law. Instead, succession is a question of British law alone. Only the British Parliament can set the rules for who ascends to the throne, while the Canadian Parliament’s only authority lies in assenting to the changes. Put differently, the authority to legislate the rules of succession belongs with the British Parliament because the Canadian constitution does not address matters of succession. The legal pretext for this interpretation is the preamble to the 1931 Statute of Westminster, which states that the United Kingdom will obtain the assent of the Dominions when altering succession to, and royal titles and styles of, their shared Crown.

For Mr. Moore, the absence of an explicit reference to succession in the codified parts of the Canadian constitution also explains why no constitutional amendment is needed to alter succession in Canada. Although the Constitution Act, 1982 states that changes to the “office of the Queen” require a constitutional amendment that is approved by Parliament and the provincial legislatures, the government interprets “office” to mean only those powers and privileges of the Crown that are identified in the codified constitution. Hence, succession doesn’t pertain to the office because succession isn’t mentioned in the codified constitution.

Unfortunately for the government, these interpretations of the Statute of Westminster and office of the Queen are problematic.

The conventions outlined in the preamble to the Statute of Westminster depended on the power of the United Kingdom to legislate for the Dominions and on the idea that all the realms were under a single Crown. Neither of these conditions holds anymore, as Australian legal scholar Anne Twomey has shown. When Canada and the other Dominions altered their royal styles and titles in 1953, the realms did not assent to British legislation; they legislated for themselves. And Canada’s act made no mention of the Statute of Westminster. In the 1970s Australia and New Zealand enacted new royal styles and titles without consulting the other Dominions, sapping the prescriptive authority of the Statute‘s preamble. Claims that the preamble still applies to succession were further undermined in the 1980s. The authority of the preamble depended on section 4 of the Statute, which allowed the British Parliament to legislate for the Dominions. The Canada Act, 1982 ended the British Parliament’s authority to legislate for Canada and abolished s. 4 of the Statute. Australia followed suited with the Australia Act, 1986, as did New Zealand with its Constitution Act, 1986. The United Kingdom is no longer able to legislate for Canada, Australia or New Zealand, even in matters of succession and even if they assent.

As important, the United Kingdom cannot legislate the succession to the Canadian throne because the British and Canadian Crown are no longer one and the same. The British and Canadian Crowns are legally distinct and independent entities.

The emergence of the distinct and independent Canadian Crown happened gradually and it took time to be properly recognized. Somewhat ironically, the process began with Statute of Westminster, which granted the Dominions legislative independence. As Canadian cabinets monopolized the authority to advise exercises of the Crown’s powers in right of Canada in the decades that followed, the idea of a Canadian Crown took shape. In the early 1950s, the title of Queen of Canada was created. During her coronation, Queen Elizabeth II was proclaimed the Queen of Canada. As the government’s own publication, A Crown of Maples notes, “The proclamation reaffirmed the newly crowned monarch’s position as Queen of Canada, a role totally independent from that as Queen of the United Kingdom and the other Commonwealth realms.”

The final step toward a distinct Canadian Crown was achieved in 1982, when the Canadian constitution was patriated and Canada became a fully sovereign and independent state. While the 1982 patriation ended Canada’s legal ties to Great Britain, the expanded Canadian constitution retained the Crown as the concept of the Canadian state and as ultimate source of sovereign authority in Canada. This fully independent Canadian state could not have the British Crown as the source of its sovereign authority. Nor could it be a shared Crown. The only way Canada could be completely sovereign and independent was to decouple the Canadian Crown from its British counterpart.

The fact that only the Canadian Parliament and provincial legislatures can amend the constitutionally entrenched office of the Queen is a testament to this development. The Canada Act, 1982 and Constitution Act, 1982 gave the Canadian Parliament and provincial legislatures absolute control over the office of the Canadian Sovereign and the wholly independent Canadian Crown. Any claim that Canada and Britain share a Crown in the legal or constitutional sense is therefore incompatible with the complete sovereignty that Canada achieved in 1982.

Justice Minister Rob Nicholson implicitly admitted as much when the succession bill was introduced in the House of Commons on Wedenesday. The minister noted the Governor General had given the bill his consent, a requirement for any bill that touches on the powers and privileges of the Crown. Since the British Crown had already given its consent to the British succession bill and the Canadian government claims that the Crown is shared, it is unclear why the consent of the Governor General, the representative of the Queen of Canada, was required. The only plausible answer is that the succession bill affects the separate and distinct powers and privileges of the Canadian Crown.

If the United Kingdom cannot legislate the rules of succession for the Canadian Crown, it follows that Canada must have the power to determine the rules of succession for its Sovereign and head of state. At present, the Canadian rules of succession are those that were inherited from the United Kingdom. And an argument might be made that they must mirror those of Great Britain absent a constitutional amendment, owing to the preamble of the Constitution Act, 1867. But mirroring the British rules does not mean Canada can simply assent to British bills to bring its succession into line with the United Kingdom’s. If Canada is a sovereign state and has an independent Crown, the Canadian legislatures—Parliament and the provincial legislatures—must pass substantive legislation to ensure that Canada’s rules of succession reflect those of Great Britain, not merely assent to a British law. Here again, the Governor General’s granting of Crown consent to the Canadian bill indicates the government is at least partially aware the British and Canadian Crowns cannot be affected by the same British law.

If we accept that Canada is fully sovereign and that the Canadian Crown is fully independent, then there must be some part of the codified constitution that addresses succession, whether explicitly or implicitly. A strong case can be made that the “office of the Queen” mentioned in s.41(a) must be that provision that addresses the succession to the Canadian throne. Accordingly, any change to the succession to the throne must trigger the amending process identified by s.41(a).

Succession must pertain to the office of the Queen because of the Crown is a “corporation sole.” Corporations sole fuse an office and an office holder. The office and office holder are treated as synonymous in law. This means that, legally speaking, all references to the Queen, Her Majesty and the Crown in Canadian statutes and the constitution refer to the same thing. When the constitution speaks of the office of the Queen, then, it is referring to both the Sovereign and the Crown in the broadest sense.

Most importantly for our purposes, this further means that the office of the Queen extends not only to the current office holder, but to those who will succeed to the office. This is necessarily true precisely because the Crown is a corporation sole.

The purpose of having the Crown as a corporation sole is to ensure that successors to the office of the Sovereign retain all the powers, duties, constraints of the Crown when they ascend to the throne. Hence, when one monarch dies and is replaced by their successor, there is no need to reiterate the established powers, duties and constraints of the Crown. Nor is there any need to rewrite any statutes. Having the Crown as a corporation sole allows for a seamless and automatic transition between the current Sovereign and her successor. So, when the Prince of Wales becomes King Charles III, all references in Canadian statues and the constitution to the Queen and Her Majesty will automatically apply to him because the Crown is a corporation sole.

It is the idea of corporation sole that underlies the cry of “the king is dead; long live the king!” The Crown is never vacant and the Sovereign never dead because, as a corporation sole, the office of Queen (or King) is immediately filled by successors when a monarch passes. Hence, as the canonical jurist of English law William Blackstone noted when discussing the concept: “Corporations sole consist of one person only and his successors, in some particular fashion, who are incorporated in law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense, the king is a sole corporation.” The office of the Queen necessarily refers to both the current Sovereign and her successors.

To reiterate, then, altering the rules of succession requires a constitutional amendment under s. 41(a) because the Crown is a corporation sole, a legal status that was purposefully designed to ensure that the office of the Queen includes matters of  succession.

Recognizing that the Crown is a corporation sole also helps us answer the question that hovers over this entire discussion, namely: how can the Canadian and British Crown be distinct if they’re both personified by Elizabeth II?

The Canadian and British Crowns are distinct corporations sole. As a result, the Queen of Canada and Queen of the United Kingdom are legally distinct office holders, just as the Canadian Crown and British Crown are distinct offices. However, the natural person who occupies these offices, Elizabeth Windsor, is the same. One woman personifies distinct and separate offices. This means that the Canadian and British Crown are under a personal union, but not a legal or constitutional one. Elizabeth Windsor holds the legally independent offices of the Queen/Crown of Canada and the Queen/Crown of the United Kingdom. But when she acts as the Queen of Canada, she is not acting as the Queen of the United Kingdom. The fact that Elizabeth Windsor is both the Queen of Canada and the United Kingdom does not mean that the two states shared a single Crown or Sovereign.

To conclude, it is worth discussing what might happen if we accept the government’s argument that succession is only a matter of British law and that changes to the rules of succession do not require a constitutional amendment. The most obvious consequence of the government’s position is that Canadian republicans will have been proved right: the Crown is an inherently British entity and Canada cannot claim to be an independent state until our ties to the House of Windsor are cut or we become a republic. The government’s view would also mean that Canada would effectively cease to be a constitutional monarchy if the United Kingdom decided to become a republic. The concept that underlies Canada’s entire system of government, the Crown, could be dismantled by another country.

The government’s narrow construction of the office of the Queen under s. 41(a) of the Constitution Act, 1982 may lead to some interesting outcomes, too. If the office of the Queen covers only those powers of the Crown that are explicitly identified in the codified constitution, a future Parliament could pass various statutes to undermine the monarchy without consulting the provinces. One could image, for instance, a future Parliament passing a regency act that transforms the Governor General from the representative of the monarch to the personification of the Crown in Canada, owing to the Sovereign’s absence in Canada. Coupled with a new set of letters patent that transferred all of the Sovereign’s remaining authority to the Governor General, this regency act could be used to exclude the royal family from all Canadian affairs. Since this kind of act would not affect the powers of the Crown included in the codified constitution, Parliament could pass it without consulting the provinces. Of course, it is difficult to imagine that this was the intended spirit of s.41(a), but a narrow construction of the office of the Queen might allow it.

Suffice it to say, while the changes to the succession are laudable, a greater degree of caution and debate is warranted here.

Philippe Lagassé is an assistant professor of public and international affairs at the University of Ottawa. He thanks James W.J. Bowden for his research assistance.

The Queen of Canada is dead; long live the British Queen

  1. “The legal pretext for this interpretation is the preamble to the 1931 Statute of Westminster…” More to the point it is the residuary power of the Federal Parliament in section 91 of the Constitution Act, 1867 that allows the Federal Parliament to deal with it alone. It had to be on that basis for George VI when Edward VIII abdicated, and when George VI lost his Emperor of India title in the 1940′s. One has to distinguish between ordinary statute law which in this case is a federal power under section 91 and an entrenched constitutional amendment, which this is not, but if it were it would have to be done pursuant to section 41(a).

  2. Trust Canadians to make heavy work out of minor matters, while we ignore genuine problems.

    Why just last week the Queen didn’t matter….only a ceremonial figurehead, and the GG was purely Harper’s rubber stamp….neither of them had any duties, responsibilities or meaning at all. They could both disappear and no one would notice.

    Now ….Britain’s changing it’s OWN laws, and out of courtesy asking for our formal agreement, something they don’t actually need….and suddenly it’s a constitutionl crisis!

    • No Emily, what Philippe is saying is that the British Crown and the Canadian Crown, although they are held by the same person, are distinct entities. Britain does not require our permission or assent to change the rules of succession for their monarch, and neither do we require theirs. However, according to the Constitution Act, changing the rules of succession for the Canadian Crown requires a constitutional change, and to do that requires permission of a majority of the provinces. This should be a simple matter since surely no one opposes the elimination of sexist rules of succession. But it does mean the federal government cannot act unilaterally in this matter.

      • Don’t blame me for nonsensical legal fictions. They are one and the same.

        Try refusing the change, and see what it gets you.

    • Just a ploy by our govnmnt’ to obscure more serious matters like a FIPA.with China.

      Our govnmnt’ must think we are brain dead to fall for this..Harper is full of himself.

      • you damn rights tocamo, the whole bill c38 and c45 enviro laws and loosely worded construction laws and the navigable waters act were all part of demands desired by chinese investors in order for them to invest in canada.
        http://wcel.org/resources/environmental-law-alert/smoking-gun-who-was-real-author-2012-omnibus-bills

        The indian act parts of the bill opens the doors for these investors, they say natives can’t lease lands, can’t start business’s, own their homes, all lies, they can, trust me i know as a reserve resident and a member of a band with a real estate investment business with millions in properties. now with the INAC minister being able to call a meeting and force a vote with only attending members and deem it as approved, there will be a few rich natives and a bunch of homeless ones all across canada and the fed government will suddenly be sanctioning large chinese resource extraction operations across canada’s north.

        Don’t get me wrong some of us can become full fledged business partners and all are willing to benefit from or/and want to pursue resource development as well, but at least we’ll keep the jobs and profits in Canada and we won’t destroy the environment while doing it. Ask yourselves, do we really need to get those oil tailings out in the next 10 to 15 years, why can’t it be 40 years of jobs? Do you really think China with one of the worst human and environmental rights records will hire canadian workers when they can ship in their own, or fuel our economy or look for any opportunity to screw us over?
        http://www.theepochtimes.com/n2/canada/china-investment-deal-in-canadian-oil-sands-a-sell-out-says-party-leader-189096.html

        • …and this has exactly *what* to do with the discussion of the succession to the Crown of Canada?

  3. If the government had any sense at all they would tell England to take their crown and stuff it. It is embarrassing in the extreme to have a non elected foreigner as head of our country.

    • She’s your Queen, if you don’t like it – ‘go stuff it’ – and visit the dirty Republic to our South.

      They’ll be glad to have you.

      Enjoy your guns.

    • I’m am from the UK, and I approve this message. Kick that parasite out!

  4. Prof. Lagasse is yet another person who thinks in terms of Quebec’s Civil Law, in which all law is codified, and does not understand Common Law traditions. The Constitution does not need to be amended because the succession to the Crown is not there now. It lies in Common Law tradition and British statutes that are now part of our Common Law. We can’t amend Magna Carta or the Act of Settlement (1701). The British sovereign is sovereign of Canada both by Constitution and by Common Law. What the good Prof. suggests is opening up a national constitutional debate over something that is already quite fixed. What would the question be? Would it be whether we have a monarchy at all? Or would he and his colleagues be stumping for something more ludicrous, such as maintaining the present system, and setting us up for demanding a male heir while a woman took the throne under the new British system?

    • BY the way, our “independence” is proven by the fact that we can do away with the monarchy anytime we want to.

  5. That’s a mouthful. My question is how does our separate Canadian crown affect treaty right for FNs? Are all prerogatives and duties now soley in the hands of the GoC, and if so does this mean that those chiefs who insisted that the Queen’s rep be presents were in fact mistaken.
    That last para reads like a future NDP govt could make changes to the monarchy w/o provincial consent to appease QC.
    In any case this sounds like more amateurism from an out of its depth Harper govt, or worse, more deliberate govt discretionary powers to get around parts of the constitution they don’t like. Clowns to a man.

  6. The Canadian Constitution doesn’t specify male primogentiture; why would a change away from this then require a constitutional amendment?

    • That’s actually not the issue.

    • Read the 1st clause of the Preamble to the (BNA) Constitution Act, wherein it states that:

      “Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into 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…”
      This legally puts upon Canada the current formula for replacement of the “office” of the monarch, according to British law.

    • But, the Act of Settlement, which is a part of our constitution, does specify male primogenitutre.

  7. Given the premises in this learned argument we can conclude that the Conservatives under Harper are ignorant of the law, or that some movement toward a republic is intended — I wonder which is true?

    • I would interpret it the exact opposite. The government does not want to deal with the issue of succession precisely because they want to avoid the question, and defer it to British law. Make no doubt. This is the most regressive government on matters of sovereignty since the war.

  8. Great! Cool! Federal Tax is payable tom the Crown,,,,,,,,,,,,,,,think I’ll send my check there this year.

    • You’re right – under law, the “Crown in Right of Canada”. T’is been thus since 1931.

  9. There are some good points in this article, but from a pragmatic perspective – this is the right thing to do.

    God forbid there should be succession when the NDP or Liberals were in power … they would stumble and block succession.

    The notion that the large variety of nations should have to approve the succession is a little ridiculous – we should accept that it’s the UK that controls succession.

  10. All Hail King Harper

    As if anything but the PMO had any power in Canada.

    While Harper fiddles with this ludicrous appendage of the state – which has only ceremonial power – and that other nearly as toothless appendage the senate – which can slow but not stop legislation – the real problem with our system is the concentration of power in the PMO.

    If Harper wants to look to Britain, he should adopt the UK rules which loosen the power of the PM office, distributing it through committees.

    Leave it the Harper to make a big thing of nothing and nothing of the real problem.

    Eg. Scream about foreign environmental radicals while destroying the environment.

    • Right on Brent!

  11. It’s time to repatriate the Crown. It seems the simplest way would be to wait it out — refuse to change our succession laws while the UK changes theirs.
    Then we wait for the heirs to give birth to a girl — who will be Queen of England. The secondborn – a son – would be King of Canada.

    • There hasn’t been a “Queen of England” since Elizabeth I”. Read your history.

      • Actually there hasn’t been a Queen of England since Anne. James I/VI was King of England and King of Scotlad at the same time, much as the current Queen is Queen of Canada and UK seperately (personal union) (hence why he was James I in England and James VI in Scotland). The UK was born in 1707 with the Acts of Union. This is relevant to the current debate though. How can the Canadian Crown, just say we’ll let the British Crown change our laws for us? If there are two seperate crowns, only the Canadian Crown can change the law of sucession, and that has to be within the bounds of the Constitution Act which no longer allows the British Parliament to change Canadian law, EVEN with Canada’s consent. I don’t have the answer, but I don’t think the government went about this right.

  12. In 2003 much of this was decided in the courts (O’Donohue v. Canada, 2003) – the case was about the 1701 Act of Settlement which bars Catholics from becoming the Canadian monarch. Basically the court found that the Canadian Charter can not apply to the Crown.

    The relevant part of the decision

    CONCLUSION

    [36] The impugned positions of the Act of Settlement are an integral part of the rules of succession that govern the selection of the monarch of Great Britain. By virtue of our constitutional structure whereby Canada is united under the Crown of Great Britain, the same rules of succession must apply for the selection of the King or Queen of Canada and the King or Queen of Great Britain. As stated by Prime Minister St. Laurent to the House of Commons during the debate on the bill altering the royal title:

    “Her Majesty is now Queen of Canada but she is the Queen of Canada because she is Queen of the United Kingdom. . . It is not a separate office .. it is the sovereign who is recognized as the sovereign of the United Kingdom who is our Sovereign. . .” Hansard.February 3, 1953, page 1566.

    [37] These rules of succession, and the requirement that they be the same as those of Great Britain, are necessary to the proper functioning of our constitutional monarchy and, therefore, the rules are not subject to Charter scrutiny.

    [38] In the present case the court is being asked to apply the Charter not to rule on the validity of acts or decisions of the Crown, one of the branches of our government, but rather to disrupt the core of how the monarchy functions, namely the rules by which succession is determined. To do this would make the constitutional principle of Union under the British Crown together with other Commonwealth countries unworkable, would defeat a manifest intention expressed in the preamble of our Constitution, and would have the courts overstep their role in our democratic structure.

    • Judge found that the Charter challenge was non-justiciable. You’re citing the judge’s obiter dicta, which has yet to be settled.

  13. Better a ‘cavalier’ approach to this matter than a ’roundhead’ approach.

  14. Canada is a corporation which is owned by who?The bank of Canada is a corporation as well,owned by who?Look at the paper in your wallet or purse,it only says “bank of canada”,it does not have printed on it government of canada anywhere.The provinces and cities are companies as well.The people are assets of all these companies at the same time,we are not the shareholders whatsoever,if we were why can’t we just cash out our holdings!We have a factory farm slave operation in effect.Guess who owns all the land in Canada,just the largest landowner in the world with 6.6 billion acres,600 rooms in their castle as well as 600 chestnut trees and 600 servants.There’s a 666 encoded on the 20$ bill just like the CN tower in Toronto with a dimension of 66.6 meters encoded into the architectual design and of course the capital of Canada,Ottawa has a city logo with 666 encoded in the 1st letter of the city.Isn’t that special!!!!!!
    The UN charter of human rights states that slavery in any form is illegal which includes financial debt slavery,Which means we don’t have to work for these devil worshipping demented,diabolical,dysfunctional,demonic,deuche bags in their dungeons of disgraceful debilhitating,disease infested,dungholes.

  15. The fact that this Gordian Knot is tied with gold-encrusted strands does not mean we cannot cut it. End all monarchy in Canada and elect a Canadian head of state as well as PM.
    There’s nothing complicated at all about it, and you don’t become a ‘republic’ in so doing.

  16. If there was ever a need for a strong, national progressive Republicanism in Canada, it is now. Because beneath the photo ops this administration moves as if sovereignty was an embarrassment.

  17. If you knew your history – you’d know we ARE connected. And as for saying ‘The Queen of Canada is dead” – go learn professional journalism and don’t print headlines that are not true. The Queen of Canada has served you faithfully all these years.

  18. More evidence that Canada will never be truly independent as long as it remains tied to this fundamentally foreign and undemocratic institution.

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