The Supreme Court of Canada touched on one of my favourite topics today: the various capacities of the Crown. Brown J., in particular, offered a strong defence and explanation of the Crown’s distinct capacities and how the courts must differentiate them.
The Crown serves many functions in the Westminster system. The Crown serves as the concept of the state. It can mean the Sovereign or the monarch. The Crown can also refer to the executive generally and sometimes Cabinet. In other cases, the Crown can refer to one part of Parliament. And the Crown has a role in the courts, too. Many of these functions seem to overlap and appreciating their differences can be especially difficult because the Crown is personified by a single person, the Queen. But understanding how they are differ is vital to grasping how Westminster states operate.
Take the Crown as the state. Since the both the United Kingdom and Canada have Queen Elizabeth II as their Sovereign, we might conclude that they are under the same Crown and are part of the same state. The Crown’s distinct capacities avoids this confusion. The Queen has many different capacities. One of those capacities is as the Queen of the United Kingdom. Another is as the Queen of Canada. These are distinct capacities. The Crown as the state mirrors these capacities as well. Thus, we have the Crown of the United Kingdom as the concept of the British state and the Crown of Canada as the concept of the Canadian state.
Within Canada, the Crown has distinct capacities as the personification of the federal government and the provincial governments. The Crown also has distinct capacities with respect to the organs of the state. The Crown as the executive power acts in a governing capacity. The Crown-in-Parliament is the Crown acting in a legislative capacity. And the Crown in the courts is the Crown acting in a judicial capacity.
One of the questions before the SCC in Mikisew Cree First Nation v. Canada was whether the duty to consult First Nations under the honour of the Crown applies to the Crown writ large or to the Crown in a specific capacity. A majority of the court found that the duty to consult First Nations is attached to the Crown in an executive capacity, rather than the Crown in a legislative capacity as part of Parliament. The honour of the Crown toward First Nations belongs to the Crown as the executive power, not the Crown-in-Parliament. The majority further found that the separation of powers and parliamentary sovereignty meant that the courts should not review the legislative process to ensure that the honour of the Crown had been respected. The duty to consult and the honour of the Crown are tied to executive actions and actors, not legislative ones.
Brown J. adopted a particularly strong view of these distinctions in his opinion. He notes, for instance, that the duty to consult binds ministers of the Crown in their executive capacity. It does not bind them in their legislative capacity:
“While Cabinet ministers are members of the executive, they participate in this process –for example by presenting a government bill– not in an executive capacity, but in a legislative capacity.” (113)
Brown further clarifies that, under the separation of powers and parliamentary privilege, the constitutional duty to consult First Nations must be “understood as excluding the parliamentary (and, indeed judicial) functions of the Canadian state” (128). This, in turn, implies that the honour of the Crown does not pertain to the Crown’s legislative functions and capacities as one part of Parliament, alongside the Senate and House of Commons. When the Crown acts in a legislative capacity, granting assent or consent to legislation, and recommending bills, the Crown is not involved in conduct that is bound by the duty to consult:
“This description of the various and distinct aspect of Crown authority (and also, it follows, Crown conduct) affirms that the exercise of Crown authority in enacting legislation (“assenting, refusing to assent to, or reserving legislative or parliamentary bills”) is legislative. It is not an instance of ” Crown conduct” –that is, executive conduct– which can trigger the duty to consult.” (133)
One take-away from today’s ruling is the importance of being specific about which capacities are in play when discussing institutions and actors who have more than one. An individual may be both an MP and a minister, but they can fulfill distinct functions and exercise unique powers in their separate capacities. Similarly, the Crown as the executive power is not the same thing as the Crown-in-Parliament. While we often speak of the ‘fusion’ of the executive and legislature in the Westminster system, that link is primarily one based on constitutional convention and parliamentary practices, rather than law.
Finally, if we follow Brown’s reasoning, we may have an answer to a lingering question about the Crown in Canada: does the Crown act on the advice of ministers or the houses of Parliament when granting royal assent? If we focus solely on the conventions of responsible government as they pertain to the executive, we might argue that ministers could advise the Crown to withhold assent, effective giving ministers a veto over legislation. If, as Brown argues, however, the Crown grants royal assent in a legislative capacity, then assent it granted on the advice of the house of Parliament, meaning that there is no ministerial veto in Canada.
(Ok, one last thought: Maitland was wrong.)
2 thoughts on “The Crown and its capacities”
This is probably a simpleminded question, but having read his reasons, I don’t understand *why* Justice Brown doesn’t want the duty to consult to apply to the Crown in Parliament. He’s quite right that the executive and legislative Crowns are distinct, but he seems to think that fact resolves the consultation question. That’s not really satisfying to me.
I agree with the sentiment you expressed on Twitter that the legislative drafting/preparation process must be considered an executive activity. After all, drafts of bills are regarded as confidences of the *Privy Council*. https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/privacy/confidences-queen-privy-council-canada-cabinet-confidences.html
Check out the new post as an answer.