Does the Queen have anything to do with Canada’s government?
Elizabeth II is the Queen of Canada. Her relationship to Canada’s government is similar to her relationship with Britain’s; that is, almost entirely ceremonial.
Is she the head of Canada’s government?
No, the Prime Minister is the head of the acting government. Her representative in Canada is the Governor-general, and in the provinces it is the Lieutenant-governor (one for each province).
Unfortunately, I’m not quite sure of their function.
No, but she is Canada’s head of state.
Ceremonially the Governer General signs all new bills passed by the Canadian gov’t. It gives them the Queen’s blessing and thus they are passed into law. Its strictly ceremonial. It doesn’t really matter whether the Governer General signs it or not, the parliment has already passed the bill. Lieutenant Governer is pretty much the same, only on a provincial scale. Governer General and Lieutenant Governer are not elected positions, they are just granted to someone who the gov’t thinks deserves a nice cushy no responsibility gov’t job.
Really, the Queen and representatives of the Queen are tradition only. If the Queen dropped by and said “Oh by the way Canada you are ordered to give me 5 billion for a new summer home.” Canadians would have no need to listen.
If you ask me, the whole monarchy thing should have been removed a long time back.
Did not the Queen’s Governor-General of Australia dismiss the Australian Prime Minister during a government crisis back in 1975? Could she not do the same thing to the Canadian Prime Minister?
While this may be strictly true, a more accurate representation of what occurred would be to say that the Queen dismissed Whitlam on “advice” of Kerr, the Governor-General of Australia. She did not act independently.
Generally, the Queen does not exercise her powers without the “advice” of the Government. She does not act of her own accord in her dealings with Commonwealth nations; she is bound by custom, which may be viewed as strict as written law in this special circumstance.
… I should also add that the G-G took action to dismiss the government without consulting the Queen.
Some believe that the Queen would have asked Kerr to reconsider or advised him not to proceed with the dismissal, but Her Maj wasn’t allowed the opportunity.
Crap, I’ve made a blunder. I retract my first post in this thread (but maintain the second).
Section 64 of the Commonwealth Constitution of Australia allowed the G-G the power to dismiss the Whitlam Government. The Queen’s approval was not required (nor was it sought).
Apologies for the mistake (hopefully Bricker will let me keep all my fingers… ;))
I think what Jervoise is refering to (and he’ll correct me if I’m wrong) is the fact that the G-G actually is the Queen unless the Queen herself is physically on Australian soil. So the G-G would be advising himself, then giving himself permission! I guess Canada’s situation is the same.
There was another thread about this just a few weeks ago. But can I find it? Can I arse. 
Why aren’t Canadian taxpayers pissed off that they’re paying the salary for such a worthless bullshit position? (Ditto, for Australia and the rest of the commenwealth.)
The Governor-General is seen as an insurance against dangerous government. If we cut our ties to Britain, then we won’t have a G-G, but we’ll have a President instead. Same thing, more or less. A Prime Minister and a President, just like some European nations do. The position of G-G (or the proposed presidential position under a future Australian republic) is mostly, but not entirely symbolic. There are still some kick-arse powers. Personally, I’m glad he’s there.
If you dig about the boards you will find interesting threads containing my following two posts. Hope they help answer your query.
What is the deal with Canada and the 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.
Canada’s Queen would remain despite UK removing her as UK’s Queen.
The U.K.'s British North America Act, 1867, was rolled into Canada’s Constitution Act of 1867, which sets out in section 9 that: “The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.” This means that the Queen is the head of state for Canada, but does not specifically define who the Queen is. However, in a footnote to the fifth schedule, it is implied that the Queen is the Queen of the UK, as opposed to Queen of something else: “OATH OF ALLEGIANCE. I, A.B. do swear, That I will be faithful and bear true Allegiance to Her Majesty Queen Victoria. Note.–The Name of the King or Queen of the United Kingdom of Great Britain and Ireland for the Time being is to be substituted from Time to Time, with Proper Terms of Reference thereto.”
Section 12 of the Constitution Act, 1867, however, states that UK and Canadian colonial laws in existence at the time of confederation “. . . continue in existence and [are] capable of being exercised. . . .” unless they are “abolished or altered by the Parliament of Canada.” This means that unless changed or no longer possible, the Queen would be as set out in the U.K.'s British North America Act, 1867.
The head of state being relegated to a footnote to a schedule to a foreign statute is not very seemly, so since then, the definition of the Queen for Canada has been clarified. Canada’s Interpretation Act, 1985, sets out at section 35(1) that: “Her Majesty”, “His Majesty”, “the Queen”, “the King” or “the Crown” means the Sovereign of the United Kingdom, Canada and Her other Realms and Territories, and Head of the Commonwealth." The schedule to section 35 lists some fifty-five nations which are members of the Commonwealth. Thus the Queen of Canada is defined as the corporate personality who head of state of many nations.
The question then is how the United Kingdom’s removal of the Queen of the UK affect the Queen of Canada. I submit that there would be no effect, and that the Queen of Canada would remain the Queen of Canada regardless of that the UK did. My grounds are as follows.
The preamble to U.K.'s Statute of Westminster, 1931, sets out that: “. . . it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom . . . .” This means that the UK can not act unilaterally concerning who is Queen of the UK and the Commonwealth nations such as Canada. If the UK parliament did remove the Queen, it would be without right of law, and have no effect on Canada.
One might argue that the UK could simply amend the Statute of Westminster, 1931, to permit them to change the sovereignty unilaterally. I suggest that if they made such an amendment, the amendment would not be binding against Canada because at section 4 the Statute of Westminster, 1931, also sets out that: “No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend or be deemed to extend, to a Dominion [Canada being defined as such a Dominion] as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.” Furthermore, Canada’s Constitution Act 1982, at Schedule B, Part VII, section 52(1), sets out that: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” This permits the reading out and reading down of laws which are inconsistent with the Constitution. A unilateral removal of the Queen would be inconsistent with the Canadian Constitution as set out in the preamble and section 4 of the Statute of Westminster, 1931, so such a unilateral removal would be of no force and effect in Canada.
This still leaves the issue of section 35(1) of Canada’s Interpretation Act, 1985, defining Canada’s Queen as also being the Queen of other Commonwealth nations. I suggest that this can be addressed through Canada’s Constitution Act 1982, at Schedule B, Part VII, section 52(1), providing the power to read out, and the Interpretation Act, 1985, itself permitting itself to be read out. Section 3 of the Interpretation Act, 1985, sets out that: “(1) Every provision of this Act applies, unless a contrary intention appears, to every enactment, whether, enacted before or after the commencement of this Act. (2) The provisions of this Act apply to the interpretation of this Act. (3) Nothing in this Act excludes the application to an enactment of a rule of construction applicable to that enactment and not inconsistent with this Act.”
The issue then becomes one of simple construction toward which well established rules of construction apply. Specifically, section 12 of the Interpretation Act, 1985, sets out that: “Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” The remediation would be to read out the United Kingdom from the list of nations of which the Queen is sovereign rather that to strike down Canada having a head of state, and the remediation would read out the United Kingdom as being part of the definition of the Queen rather than strike down Canada as having a head of state.
Lest there be any confusion during an interregnum, section 45 of the Interpretation Act, 1985, sets out that: “(1) Where there is a demise of the Crown, (a) the demise does not affect the holding of any office under the Crown in right of Canada.” Thus even if it could be seriously put forward that the UK had removed Canada’s Queen, the Canadian courts would retain the power to remedy, and Canada’s parliament would retain the power to enact, amend or repeal legislation, so judicial or legislative remediation would be binding.
I also suggest that apart from all this legal analysis, removal of a head of state by another nation is such an imposition on sovereignty that such removal simply would not be accepted regardless of the legal basis. The removal of the Queen of Canada by the UK through unilateral amendment of past legislation would be no different that the removal of the President of the US by the UK through unilateral amendment of past legislation. It just would not wash with the affected nations.
Canada may or may not decide to retain the monarchy, but the decision will be made in Canada, not the UK.