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The Legal Status of the Queen in Canada

Canada is constitutional monarchy, a term which refers to a system of government headed by a monarch whose actions are both constrained and compelled by a constitution.

The monarch in Canada is the Queen. The Constitution Act of 1867 says so expressly and the Constitution Act of 1982 affirms it implicity.

But the question that neither constitutional text can answer is whether the Canadian monarch is to be styled the Queen of England or the Queen of Canada, or something else, like the Queen of the Commonwealth, because both constitutional texts refer to the Queen simply as the Queen.

The distinction between the Queen of England and the Queen of Canada arose today in a comparative constitutional law class I am teaching as part of Southwestern Law School’s Vancouver Summer Law Program at the University of British Columbia.

One of my excellent students made the argument that it is improper to refer to the Queen of England in the context of Canadian constitutional law because the Queen of England possesses neither the legal authority nor the political legitimacy to act in Canada. There is only a Queen of Canada in Canada. She is the one who serves as the monarch. And even though both the Queen of England and the Queen of Canada are in reality the same private person, they are two constitutionally distinguishable legal persons.

This is a clever move that helps defend the claim that Canada is a sovereign state with its own monarch, and as a consequence that Canada is indeed truly an independent state that is not at all subject to the authority, ceremonial or not, of a foreign actor.

It is of course merely a legal fiction to distinguish between the Queen of England and the Queen of Canada. But it is a legal fiction upon which hinges much if not all of Canadian constitutional law, at least since 1982 when the Canadian Constitution was “repatriated” from the Parliament of the United Kingdom to the Parliament of Canada.

On this theory of split legal personalities, when the Canadian Parliament passes a bill, which is then given Royal Assent to ultimately become law (this is the equivalent of presentment in the United States), it is therefore not correct to state that the Queen of England signs the bill into law; it is the rather the Queen of Canada who signs the bill into law. Likewise, when a new Justice is named to the Supreme Court, it would be inaccurate to say that the formal appointment is made by the Queen of England; the right answer is that the appointment is made by the Queen of Canada.

This legal fiction is fascinating. But whether this legal fiction is convincing as a matter of constitutional law may be less important than whether it is convincing as a matter of public opinion.

With republican sentiment on the rise in Canada, the monarchist movement may have to look for a line of argument that resonates more intensely with Canadians than this very technical distinction between the Queen of England and the Queen of Canada.

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Published on June 15, 2010
Author:          Filed under: Canada, Constitutional Monarchy, hp, Queen, Richard Albert
 

9 Responses

  1. This issue is also disputed within the UK itself. The 1950s Scottish Case of MacCormick v. Lord Advocate disputed the right of the newly coronated Queen Elizabeth to style herself Elizabeth II as there had never been an Elizabeth I of Scotland (or indeed the UK – the former Elizabeth was Queen of England only as the Union between Scotland and England took place in 1707, over a century after her death). Ultimately the case was resolved on a technicality but has provided much grist to the nationalist mill regarding the question of Scottish independence.

  2. Oh, and here’s more from that quite informative website:

    In 1953, a Canadian law, the Royal Style and Titles Act, formally conferred upon Elizabeth II the title of Queen of Canada.

    Her Majesty was proclaimed in Canada with these words: “By the Grace of God, of the United Kingdom, Canada and her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith.”

    Queen Elizabeth II became the first monarch to be separately proclaimed Sovereign of Canada. The proclamation reaffirmed the new monarch’s position as Queen of Canada, a role independent of that as Queen of the United Kingdom and the other Commonwealth realms.

  3. J.S.

    Interesting article. But I have a quibble. I don’t think there’s been a “Queen of England” for a very long time. (I’m not even sure England exists any more as a legal entity)

    The correct title would be “Queen of the United Kingdom”.

  4. Thank you for your comments.

    Cormac: I will look up that case, and share an edited version with my students. Wonderful.

    Max: Yes, I had seen that in my own Google search. But it did not strike me as a definitive answer because the title does not appear in a constitution. But perhaps I have to rethink the relative weight I afford to constitutions and statutes.

    J.S.: Thank you for that. So, the Queen of the United Kingdom–is that her title, for example, in Australia, too? I suppose it’s the same controversy (if one believes it’s a controversy) that applies in the Canadian context.

    To be continued…

    Finally, as a follow-up, here are the results of the latest poll conducted last week on the support for the monarchy in Canada: http://www.ottawacitizen.com/news/love+Queen+want+ties+monarchy+poll+finds/3158930/story.html.

  5. The problem has been around for quite some time under different angles, it appears. There is, of course, a classic titled “The King’s Two Bodies” by Ernst H. Kantorowicz, published in 1957. Though it refers to a medieval problem which can be described as the division between the spiritual and the temporal functions of the king, both turn out to be seperate legal bodies. The same is true for monarchs as heads of multiple states, but there is an important caveat. I feel that the difference clearly (in constitutional law) depends on the status of a country as independent or dependent (i.e., a colony). Canada as a mere colony would not posess a crown and thus is incapable of conferring one on QE II. In that case, it would be QE II, Queen of England (ruling over a colony). An independent Canada must ponder on the question whether there is a Canadian Crown (such as there is a Scottish one) or not. Only if there is (and I think the Constitution Act implies this), there is a Queen of Canada. A Crown of course may exist as a pure concept or supported by – tangible – regalia (as it again is the case in Scotland).

  6. The existence of a separate Canadian crown is implied by the Statute of Westminster and confirmed by the means by which Edward VIII’s abdication occurred: each of the realms had to agree to the UK legislation to permit abdication before it would apply to their jurisdictions. In contrast, Ireland pointedly did not agree until the day after Edward abdicated, leaving a period during which he was the King of Ireland, though not of the United Kingdom.

    Following up on J.S.’s point: England doesn’t exist as a jurisdiction, except to the extent that it’s the portion of the legal jurisdiction of England and Wales, which is not in Wales. The kingdom of England (which included Wales) was subsumed into the kingdom of Great Britain upon the Treaty of Union in 1707, which was in turn subsumed with the kingdom of Ireland into the United Kingdom in 1801. The titles of the person who happens to be the shared monarch of the United Kingdom, Canada, Australia, New Zealand, etc. vary by jurisdiction.

  7. @Chris – I am very much intrigued with the detail of Ireland withholding confirmation on Edward VIII’s abdication for yet another day. Thank you for this. Finding UK constitutional law quite confusing, I am all the more confused by the different titles. In the renewed Royal Charter for the British Council, for example, issued in 1993, HM adresses the public “By God’s Grace…Queen of the United Kingsom of Great Britain and Northern Ireland” etc., which is the common line, but which implied a distinct “British” Crown, which means I would have to back down on the point that there still was a Scottish Crown, wouldn’t I? On Canada however, I think you have sufficiently established that it is safe to assume the existence of a Canadian Crown.

  8. Yes, the Scottish Crown merged with the English (and Welsh) Crown under the 1707 Treaty of Union, articles 1 & 2, creating the Kingdom of Great Britain with one Crown. The same formula was used in 1801 for the merger with the Kingdom of Ireland. (Of course, both cases, the Crowns were held by the same person, but the Treaties of Union merged the legal personalities.) So, to the extent that there is currently a Scottish Crown, it’s the same as the English or Northern Irish Crowns.

    It’s possible that, if the UK continues to federalize, the Scottish Crown might re-emerge as a distinct entity, in much the same way as the Crown in Canada is divisible into The Crown in Right of Canada and The Crown in Right of Insert-Province-Here, but that hasn’t happened yet.

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