Can Canada go without a Queen? Probably.

With Barbados becoming a republic, this blog turns once again to the question of “Why can’t Canada ditch the monarchy?”

As any good reporting on the subject will note, the answer is that it would be too hard Canada to become a republic. To do so, we would need to use to unanimous amending formula set forth in section 41 of the Constitution Act, 1982. Even if we could agree to end the monarchy in principle, opening up the constitution would inevitably lead to negotiations about other issues that won’t go anywhere.

Given the amending formula, dedicated Canadian republicans should focus their efforts on the United Kingdom. Were the United Kingdom to become a republic, we would be forced to deal with the monarchy in our own constitution.

Or would we?

In a new article in Review of Constitutional Studies, Marie-France Fortin outlines a novel argument as to why the 2013 changes to the rules of royal succession did not trigger an amendment to the “office of the Queen” under section 41(a). As I read her article, she argues, in part, that the rules of succession apply to the Sovereign’s natural capacity only, rather than the Queen’s official capacity. Since the Constitution Act 1982 deals only with the office of the Queen, it follows that a matter pertaining to the Sovereign’s natural body would not trigger the unanimous amending formula.

Extrapolating from this argument, we might ask if Canada actually has a natural bodied Sovereign in a constitutional sense? Specifically, if the office of the Queen and other references to the Queen in the constitution refer to the Sovereign in an official capacity alone, we can ask if the Queen is merely an office in a Canadian context. And if it is, could this office be left without a natural occupant?

The answer to the first question is that, no, the office of the Queen is occupied by a natural person in Canada. That person is Queen Elizabeth II. She occupies the office of the Queen of Canada because British law identifies her as the Queen of the United Kingdom and there is (apparently) a principle of symmetry in the Canada constitution that the office of the Queen of Canada is occupied by whoever occupies the office of the Queen in the United Kingdom.

But what would happen if there was no Queen of the United Kingdom or natural person identified as holding that office in British law? What would happen if the was no foreign monarch to take as our own? Perhaps nothing.

There’s clearly no requirement to fill the office of the Queen in Canadian law, since Canadian law doesn’t include any rules about who fills that office. The only thing we have is a principle that we take the United Kingdom’s monarch as our own. So, we could technically just leave the office empty or perhaps try to fill it with a unilateral section 44 constitutional amendment by Parliament.  

What would be the practical effect of leaving the office of the Queen vacant? Arguably nothing, thanks to the Letter Patent 1947. The Letters Patent 1947 (apparently) allow the Governor General to exercise all of the Queen’s powers, including those that we’ve decided to leave with the Queen, such as the power to appoint and dismiss the Governor General and name additional senators under section 26 of the Constitution Act 1867. Under this reading, which is supported by the absence of a Canadian regency act, the Governor General would simply exercise the Queen’s powers in the absence of a natural bodied Sovereign. Interestingly, of course, this also means that Canada could exclude the Queen or a future King from exercising any powers for or in Canada right now.

Those who wish to avoid reopening the Canadian constitution can therefore take solace. We might not have to discuss the office of the Queen or become a republic if the United Kingdom did.

A whole host of other problems might arise if this happened though, notably around whether the executive could exercise the Crown’s powers of a person under common law if the Queen has no natural capacity, but we’ll leave that for another day.

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