The Crown is ubiquitous in Canada. Laws are issued in the Queen’s name; the Governor General, as her representative, opens Parliament; court cases, prosecuted by Crown attorneys begin with the words, “Her Majesty the Queen v.” The Crown is symbolized by pomp, ceremony, and more than its share of gilded splendour.
Yet ask people on the street about the Crown in Canada and they’ll just as likely mutter something about a foreign queen. Philippe Lagassé, who co-edited last year’s collection of essays, The Crown and Parliament, is baffled at how the Crown, an institution at the very heart of the country, can be so misconstrued. Sometimes “you bash your head up against the wall,” says the University of Ottawa associate professor.
The Crown, simply, is the state embodied in a person, the Queen of Canada. “The Crown permeates all aspects of the Canadian state,” says Lagassé. “Judicial power flows from the Crown, executive power flows from the Crown, legislative power flows from the Crown, the concept of the state as a person, so how it holds property, how it employs people, the privileges it has, all these things are monarchical,” he explains.
This lack of awareness isn’t new. In the 1990s, when David E. Smith, a University of Saskatchewan professor emeritus, was researching his landmark study on the institution, The Invisible Crown, he struggled to find anyone who could talk knowledgeably about the subject. Now, after decades of neglect, he says, there is growing interest in the Crown and its prerogatives, which has led to a burst of articles, books and conferences. The attention is due to a confluence of high-profile events, including the 2008 prorogation dispute, back-to-back royal tours, the prominent use of royal symbols by Stephen Harper’s government, increasingly active vice-regal appointees as well as several contentious court cases.
The last time there was such interest in the Crown was more than 60 years ago, with the fallout from the 1926 King-Byng Affair—a fiery constitutional scandal that erupted when governor general Lord Byng refused to accept prime minister William Lyon Mackenzie King’s advice to dissolve Parliament and call an election—says Richard Berthelsen, managing director of the Institute for the Study of the Crown in Canada. The Institute is co-sponsoring a conference on the Crown starting on Jan. 14 in Victoria.
Still, perhaps only 10 or 15 per cent of Canadians understand what the Crown means, says Nathan Tidridge, whose most recent book, The Queen at the Council Fire, focuses on the Crown’s relations with Indigenous peoples. For Tidridge, a high school history teacher in Waterdown, Ont., the reason for so much confusion and ignorance is simple: it’s rarely taught in school. Indeed, he explains, Ontario is the only province that demands students take a civics course. The half-credit course used to focus on how to be a “good, active citizen in the community,” he recalls, ruefully noting that its definition for Parliament was wrong. So, along with other educators, Tidridge, who teaches that course, successfully argued for the inclusion of fundamentals such as responsible government, the role of the prime minister and that of the Crown.
Though today only Lagassé and a handful of academics study, however tangentially, the subject of the Crown, there is interest on campus. David Onley, a former lieutenant governor of Ontario, teaches a fully subscribed senior seminar course on the history of the vice-regal office at the University of Toronto. To Smith’s amazement, after he spoke at the University of Waterloo a few years ago, several students told him they were working on Crown issues, something his own students never did.
First and foremost, all the experts stress, the Crown is a Canadian institution. Since the 89-year-old woman who is Queen Elizabeth II has 15 other realms over which she reigns, virtually all her authorities are exercised by the Crown’s representative, currently Governor General David Johnston, as well as provincial lieutenant governors. Moreover, Canada’s style of governance, its laws, courts and peoples have created a uniquely Canadian Crown.
Today, the two biggest prerogatives retained by the vice-regal offices are those of dissolution of governments and the appointment of prime ministers (or premiers). “Those are the areas where they have the ability, and the responsibility, to act according to constitutional convention,” Berthelsen says. Those powers were at the heart of the 2008 prorogation dispute. When prime minister Stephen Harper’s minority government was threatened with a no-confidence vote in the House, he needed governor general Michaëlle Jean to prorogue, or end the session of Parliament. The opposition wanted the session to continue so they could bring down the government. After days of speculation, Jean took the advice of the PM. That a governor general had the power, and right to decide what course to take, came as a shock to many, says Berthelsen.
One who isn’t surprised is a former vice-regal office holder. David Onley was asked to prorogue Ontario’s legislature, then also led a minority goverment. “If I had thought there was something unconstitutional about [then premier] Dalton McGuinty seeking prorogation—and there was not—I would have simply said, ‘No,’ ” he now says.
“The Crown is a fire extinguisher,” says Berthelsen. “It sits there on the wall. The fact that it has those powers, that they exist, is a brake” on ministers acting against constitutional precedent. That it is so rarely used has both Berthelsen and Lagassé concerned that its powers are being slowly chipped away.
Today the biggest impact on the Crown and its powers appears to be coming from the legal realm. In the 2014 Ontario Court of Appeal decision that new citizens must take an oath of allegiance to the head of state, the Queen, the justices stated that the oath is “not an oath to the Queen in her personal capacity but to our form of government of which the Queen is a symbol.” Lagassé believes that decision effectively “gutted” the institution by so Charter-proofing the Crown as to make it meaningless.
Also frequently cited is 2013’s Succession to the Throne Act that did away with the males-first rules in Canada. A constitutional amendment to the office of the Queen would have required unanimous consent of the provinces; instead, the government drafted its law assenting to Britain’s own succession change law. The succession law is now being challenged in Quebec Superior Court by two constitutional law professors, who are using the case in class.
Late last year a federal briefing document for cabinet ministers, “Open and Accountable Government,” placed the Queen at the apex of constitutional power by declaring that several Crown powers remain with Elizabeth II, including the right to appoint a governor general. Even here, Lagassé, a glass half-empty guy, sees potential landmines—if the monarch is incapacitated, there is no provision in Canadian law for a regent to take over her duties.
In the next few years, whether its powers are strengthened or allowed to wither, the Crown will be affected by the rulings on the royal succession court case, and proposed electoral reforms may make unstable minorities—and calls for dissolution—a more common occurrence. What isn’t up for debate is that the Canadian constitutional framework still has a burnished crown.