The Queen is Canada’s head of state, not the Governor General

The question of whether the Queen or the Governor General is Canada’s head of state remains a subject of debate.

Here’s an op-ed I wrote about the issue for the Ottawa Citizen in 2012.

The Queen is Canada’s queen

Philippe Lagassé.

Ottawa Citizen

Tuesday, January 10, 2012

Accustomed to seeing the monarchy as a quaint symbol of Canada’s colonial past, many Canadians have been irked by the Conservatives’ blunt reminders that the Queen stands at the apex of the Canadian state. Surely, critics argue, it is time to have a Canadian head of state? Could we not, at the very least, bestow the title on the governor general?

In practice, the governor general could be called Canada’s head of state. The term has been applied to the office before. But unless the Canadian monarchy is abolished, attributing that title to the governor general is a misnomer, one that confuses our understanding of a key constitutional concept, the Crown. To appreciate why, it is necessary outline the relationship between the institution of the Crown, the person of the sovereign, and governor general who represents both.

Besides being one part of Parliament alongside the House of Commons and Senate, the Canadian Crown also serves as the foundation of executive authority and as our concept of the state. As such, the Crown is a legal entity that remains steadily in place while new Parliaments are elected, prime ministers are named, and different cabinets are formed. Throughout the unfolding of this democratic process, the Crown endures, allowing the executive to enforce the law, attend to Canadians, and operate the machinery of government.

The Crown as the state also provides for permanent civil servants and security forces whose political neutrality and legal independence derives from their constitutional loyalty to the formal executive. As well, the idea of the Crown as the state underlies other notions, such as Crown corporations, and it explains why First Nations are intent to reaffirm their relationship with the institution.

Appreciating that the Crown is our concept of the state helps us resolve the most contentious issue in the burgeoning monarchy-republic debate: whether the institution is Canadian or British. Historically, Canada and the United Kingdom shared the same Crown. With the enactment of the Statute of Westminster in 1931, however, the Canadian and British Crowns became two distinct institutions, reflecting Canada’s evolution from a self-governing colony to an independent state.

Where does the person of the sovereign fit in all this? The Queen embodies the Crown; she is essentially the holder of the Crown as an office. For this reason, the sovereign is both the Queen of Canada and Queen of the United Kingdom. Although they are separate and distinct, she holds both offices and embodies both Crowns.

As the personification of Canadian Crown, then, the Queen formally sits atop the Canadian state. As long as Canada is a constitutional monarchy, defined by British constitutional expert Vernon Bogdanor as “a state which is headed by a sovereign who reigns but does not rule,” there is no easy way to get around this arrangement.

The office of the governor general highlights the point. On the one hand, the governor general represents the Canadian Crown. Indeed, the office is the clearest manifestation of institution in the day-to-day affairs of government. On the other hand, the governor general is the representative of the sovereign. The governor general is formally appointed by a personal exercise of the Crown’s prerogative by the Queen, and the powers of the viceregal office are delegated by the monarch via an instrument known as letters patent.

In that sense, the sovereign always remains one level above the governor general at the formal summit of the Canadian state. Calling the governor general the “head of state” would merely mask this reality.

Perhaps Canadians no longer want the Queen or her successors as their head of state. But if that is the case, cosmetic measures will not suffice. The nature of the Canadian Crown, and thus Canada’s Constitution, must first be amended.

Philippe Lagassé is an assistant professor of public and international affairs at the University of Ottawa.

© Ottawa Citizen 2012

Time for a refresher on the powers of Parliament

Here’s the introduction to my Ottawa Citizen op-ed from 4 October 2014:

Canada’s intervention in Iraq has raised questions about Parliament’s role in governing. Opposition parties have chastised the government for not consulting the legislature before deploying military advisors. The official opposition has demanded that the government hold a vote on the mission, stating that this decision should be made by the House of Commons, not merely cabinet. Although the prime minister and his cabinet hold the confidence of the House, opposition parties have come close to suggesting that the Iraq deployment is not a policy choice the Harper government can rightfully make on its own.

There is a case to be made for the opposition’s position; it may be that sensitive policies such as these merit parliamentary approval on political grounds. But the rhetoric employed goes further, fudging the distinct constitutional roles of the legislative and executive powers. If the opposition members truly believe what they are saying, we have a problem: They do not appreciate the distinct authorities of the government and Parliament.

A refresher on the legislature and executive is therefore in order.

Canada’s Citizenship Oath and the Symbolic Canadian Crown?

There’s a good deal to like about the Ontario Court of Appeal’s ruling on the citizenship oath. Judge Weiler upheld Judge Morgan’s finding that the oath is taken to the Queen as a symbol of sovereign authority in Canada. In addition, the judgement found that the meaning of the “Queen of Canada” has evolved to represent Canadian democracy and the institutions of Canadian government. When new citizens swear their oath to the Queen of Canada, therefore, they are stating that they will respect Canada’s constituted authority and recognize the legitimacy of Canada’s system of government.

I’m in general agreement with these findings, as seen here and here.

However, I do think that Judge Weiler went a bit too far. In insisting that the Queen of Canada is a mere symbol of sovereign authority, Weiler seems to imply that the Crown is a representation of Canada’s constituted authority rather than its repository. Stated differently, one gets the sense that the Crown and the Queen are being interpreted as covers for a more fundamental authority that belongs elsewhere. I am probably being unfair here, but I would have preferred to see a clearer statement that the Crown is the state and that the Queen is the legal personality of the state and the executive, not just symbols of the state and the executive. The distinction may appear trifling, but I’d argue that there’s an important distinction between the Crown and Queen as the state and the sovereign authority versus the Crown and Queen as symbols of the state and sovereign authority.

Monarchists and royalists would do well to think twice before celebrating the ruling, too. In stating that the oath is to the Queen of Canada as a symbol of government and not to Queen Elizabeth II as a natural person, both Weiler and Morgan are implying that the office of the Queen and the holder of that office, Queen Elizabeth II, can be disaggregated. Now, it would be interesting to see if they believe that this is true in law, which I doubt, but if they did, they’d effectively be saying that the Canadian Crown and the Queen of Canada can be divorced from the monarch and the royal family. Once one goes down that road, it’s not hard to imagine scenarios where the Canadian Crown and the Queen of Canada can be said to exist independently of the monarch that personifies them. And if we accept that, then it’s not a stretch to think of an interpretation of the Queen of Canada that allows the office to exist without an office-holder, or with someone other than those in the British line of succession as the holder of that office. In fact, it might even be possible to argue that the Governor General could hold the office of the Queen, as I’ll be examining in a forthcoming book chapter.

So why is this bad news for monarchist and royalists? Because the ruling could be read to mean that the Queen of Canada is a mere legal entity, one that happens to be linked to the British monarch but not necessarily so. (Interestingly, Weiler also seems to be saying that while the Queen of Canada is evidently Canadian, Queen Elizabeth II is British, which is why the oath shouldn’t be read literally. I’ve argued in favour of this before as well.) Put bluntly, the ruling can be read as a step toward the hollowing, or at least a de-royalizing, of the Canadian Crown. Weiler cites David E. Smith regarding the idea that the Canadian Crown and the monarchy are growing apart.

The finding that the Queen of Canada and Queen Elizabeth II are not necessarily fused as part of the oath, moreover, fuels frustrations with Canada’s citizenship guide. The guide’s description of the oath and the role of the Queen in Canada arguably relies on the notion that the office of the Queen and the Queen as a natural person are synonymous. Weiler and Morgan, on the other hand, are saying that, for the purposes of taking the oath anyway, that’s not the case. At the very least, this suggests that the citizenship guide should be tweaked.

Finally, I admit that the ruling helps the government’s case on the constitutionality of the Succession to the Throne Act, 2013. A few defenders of the Act have argued that the office of the Queen and the Queen as a natural person could be treated separately, despite the argument that they are linked in law owing to the Queen being a corporation sole. The citizenship oath ruling suggests that my interlocutors may be correct: the courts are willing to treat the office and the office-holder as separate. If this is the case, then it becomes far easier to argue that changes to the royal succession do not fall under the constitutional amending formula in section 41(a), since that provision deals specifically with the “office of the Queen.” Likewise, it becomes simpler to argue that matters of royal succession are solely a question of British law, since they might be said to only affect the office-holder as a natural person. I have misgivings about all of this –although truth be told I’ve been more than a little inconsistent on this question– but the oath ruling does suggest that the courts are open to the idea.

On Crown consent

Crown consent has been in the news recently. For those who haven’t seen the stories, a couple of British newspapers reported that the Queen and Prince of Wales had used a ‘secret’ veto power to stop bills from making their way through Parliament. The reports gave the impression that the Queen and Prince were going out of their way to interfere with the legislative process, killing bills that they didn’t like. One as might expect, journalists are now trying to see if a link can be made between this supposedly secret veto and Prince Charles’ habit of writing to ministers regarding his particular hobbyhorses. In light of all this, a committee of the British House of Commons has decided to look into this so-called royal ‘veto’ power.

What lies behind these charges and concerns? The issue at hand is an opaque royal privilege called Crown consent. As outlined by the British Cabinet Office (PDF), this privilege requires that bills touching on the prerogatives of the Crown, the Crown Estate, the Duchy of Lancaster, and the property and interests of the Sovereign as a natural person be granted the Queen’s consent before they receive royal assent and become laws. Similarly, the Prince Charles’ consent is required for bills touching on the Duchy of Cornwall or his position as the Prince of Wales.

At first blush this privilege appears undemocratic and unjustifiable. Yet when one looks at how Crown consent is used and why is exists, the practice appears far less scandalous; it can even be defended.

The first point to note is that Crown consent is normally granted or withheld on the advice of ministers. Despite references to a royal ‘veto’, Crown consent is actually a privilege that is exercised on ministerial advice and with the executive’s concerns in mind. Likewise, it is up to ministers to secure the Crown’s consent for legislation, if need be. The idea that the Queen or Prince are running around refusing to consent to bills doesn’t stand up to scrutiny. While there may be very, very rare cases where the Queen might signal her personal opposition to a bill and warn her ministers that she would rather not grant consent, the decision is ultimately left with ministers and she must accept their choice.

Next, we should recognize that there are two types of Crown consent: prerogative consent and interest consent. Let’s take a look at the rationale behind both.

Prerogative consent is required for bills that affect the Crown’s prerogative powers. However, prerogative consent is not required if the Crown’s powers are not directly or substantially affected. The logic for maintaining prerogative consent is to protect key executive authorities and the constitutional powers of the Sovereign from ill-advised statutory infringements and alterations. A bill that tried to make parliamentary approval a precondition for exercising the Crown’s power to deploy armed forces should probably not be given consent unless it takes emergency circumstances and other exceptions into account. Likewise, a bill that attempted to terminate the Sovereign’s power to dismiss a prime minister might not be given the Crown’s consent unless it included alternative means of removing a head of government under certain situations.

Is prerogative consent democratic? I think so. The principle behind it is that the executive requires certain discretionary powers and that these authorities should only be circumscribed with great care and caution. Moreover, if Parliament is faced with a government that is withholding Crown consent on spurious grounds, then the House of Commons is free to withdraw its confidence in the government, and attempt to replace it with a new ministry that is willing to provide the Crown’s consent. In the same vein, the constitutional powers of the Sovereign should only be erased by legislation that provides equal or better protection for the constitution than the monarch’s personal discretion. And here again, if a government is seen as obstructionist or overly protective of the Sovereign’s constitutional powers, then the ministry can always be removed by the House of Commons.

Interest consent is required for bills that affect the Crown Estate, Duchies of Lancaster and Cornwall, and the personal interests and property of the monarch. This type of Crown consent exists to safeguard the political independence of the Sovereign. In the United Kingdom, the Sovereign meets regularly with the prime minister. Both the Sovereign and Prince of Wales can also express their personal views and concerns about matters of policy and state, though these are non-binding. In exceptional circumstances, furthermore, the Sovereign may be required to exercise her personal constitutional powers, and the Prince of Wales could be required to so do if named regent. To ensure that the Sovereign and Prince of Wales are independent when performing these functions, they must never make decisions under duress. Accordingly, interest consent exists to guarantee that parliamentarians are unable to target the Crown Estate or the personal property of the Queen or Prince in an effort to coerce or threaten the Sovereign or Prince of Wales. Now, this does not mean that Parliament cannot alter the Crown Estate. It has done so before and surely will again. But it does mean that the Queen cannot be easily threatened with a vast reduction in income or personal wealth as part of some scheme to sway her politically or get her to promote certain positions. Interest consent, then, exists to protect the impartiality of the constitutional monarch and head of state in the United Kingdom. (In Canada, a similar principle explains the generous financial privileges that were previously accorded to the Governor General.)

To conclude, it’s worth recalling that Crown consent applies to the Crown of Canada, too. However, insofar as Sovereign of Canada does not have Crown Estates or duchies, and the monarch interests and property as a natural person do not affect the how the Crown operates here, Canadian Crown consent involves prerogative consent alone.

On the Crown’s relevance

My twitter friend Ben suggested that I write a blogpost explaining why the Crown matters for routine affairs of government. I’ll try to be brief….

When it comes to how we’re governed, the most important aspect of the Crown are prerogative powers. These are legal powers that belong to the Crown in its own right. Although most are now exercised on the advice of ministers, or delegated to ministers by statute, you can only really understand the scope and nature of prerogatives by appreciating their formal and historical status as Crown authorities (see my Canadian Public Administration article on prerogatives here). Indeed, if we decided to get rid of the Crown, one of the first things we’d need to do is determine which of these powers should remain with the executive, how they should be exercised, and by whom.

Why do prerogatives matter? Well, in large part because they provide the executive with a degree of discretion in important areas of government. Furthermore, the courts tend be cautious when they’re asked to review exercises of these powers. Here are a few cases involving prerogative powers that have come up of late:

The government was able to withdraw from the Kyoto Protocol, despite legislation that appeared to force the executive to adhere to the international arrangement, because international treaties fall under the foreign affairs prerogative.

The prerogative that the government used to withdraw from Kyoto also allowed the executive to decide how it wanted to address Omar Khadr’s return to Canada. Although the Supreme Court found that Khdar’s Charter rights had been compromised, the court noted that the prerogative power for foreign affairs had to be considered before imposing a remedy on the executive.

The government is able to deploy the armed forces on operations anywhere in the world, and the courts have routinely refused to review these decisions, thanks to the Crown’s prerogative authority.

The prime minister’s ability to appoint and remove ministers at will is based on prerogative authority. The courts recently ruled that these decisions can’t be reviewed because the prime minister acts via the Crown’s powers.

The executive can grant pardons with prerogative authority. If you’ve wondered how the prime minister was able to pardon farmers charged under the now defunct wheat board regulations, prerogative power is the answer.

The executive issues and revokes passports under prerogative authority. If you like your passport and the travel privileges it affords, it’s worth appreciating that your little blue booklet is on loan from the Crown.

I could go on and on about prerogatives. They also address issues such as prosecutorial discretion, signals intelligence capacities (those that can look into electronic communications), the appointment of various officials across the government, and the Crown’s status as a creditor. These are all significant for the affairs of government, and for some people who find themselves affected by a prerogative authority, their everyday lives.

Next, it’s important to understand the Crown if you want to grasp the nuances of responsible government. All too often, when we talk about responsible government, we focus solely on the relationship between the House of Commons and the governing ministry. But responsible government also involves an agreement between the Crown and the ministry. At the core of this agreement is the principle that the Crown must act on the advice of the governing ministry. If the governor general is ever forced to formally refuse the prime minister’s advice, then the normal course of action is that the prime minister resigns or is dismissed by the governor general. This doesn’t mean that the governor general can’t initially push back or ask a prime minister to reconsider the advice that’s being offered. But if a prime minister insists and formally advises the governor general to act, the consequence of rejecting that advice has typically been prime ministerial resignation or dismissal, followed by the naming of a new prime minister by the governor general.

So why should people care about this aspect of the interaction between the Crown and a ministry? Above all, it adds an extra layer to the on-going debate about if and when a governor general or lieutenant governor should refuse a first minister’s advice to prorogue or dissolve the legislature. While vice-regal officers retain the right to refuse a first minister’s formal advice, Canadian historical precedent and the literature on the Crown’s relations with its ministries indicate that the resignation or dismissal of the first minister would be the consequence of that refusal. (See Vernon Bogdanor’s The Monarchy and the Constitution for a good summary of this principle).

It’s worth bearing all this in mind if you care about the 2008 prorogation of Parliament. Had Governor General Jean refused Prime Minister Harper’s advice to prorogue, precedent and principle suggest that Mr Harper would have resigned or been dismissed (likely after trying to get the Queen to reverse the GG’s decisions, which would have been a long shot). Mme Jean would then have been compelled to appoint Stéphane Dion, the interim leader of the Liberal Party, as prime minister, since one of the GG’s first duties is ensuring that there is a ministry in place. The key point here is that Mme Jean might have forced the resignation of a prime minister who had not formally lost the confidence of the House of Commons. While prominent constitutional scholars would supported her right to do so, I suspect this decision would have dragged the governor general into the fray of partisan politics and undermined the legitimacy of a Dion-led coalition.

Simply put, if you care about responsible government and how it functions, it’s worthwhile reading up on the interaction between the Crown and prime ministers.

A third consideration is official independence. Bureaucrats and security forces follow the directions of the government of the day, and rightly so. But their ultimate loyalty does not, and should not, belong with a governing party. Instead, they formally serve and are ultimately loyal to the Crown. It is for this reason that their formal independence from the  political executive flows from their service to the Crown. Yet their ultimate service to the Crown further means that these bureaucrats and security forces are not free agents who can defy the government whenever they please. As long as the prime minister and cabinet enjoy the confidence of both the House of Commons and the Crown, these officials and officers must respect their policy preferences and choices. The Crown therefore helps achieve a balance between official independence and the inherent technocratic tendencies of bureaucratic, military, or law enforcement organizations.

Fourthly, the status and rights of First Nations in Canada is wrapped up in their historic treaties and relations with the Crown. This has received a good deal of attention lately, owing to the Idle No More movement. But it’s worth reminding ourselves that Crown-First Nations relations will need to be addressed as part of any long-term reconciliation between Aboriginal groups and Canada’s federal and provincial governments. At the risk of repeating myself: if you care about Canada’s First Nations, you should share their interest in the Crown.

Lastly, taking the time to understand the Crown matters for those who want to appreciate Canada’s constitutional complexity. Although the British North America Act, 1867 arguably aimed to establish a centralized federation, the judiciary later found that the federal and provincial Crowns were relatively equal, rendering Canada a relatively decentralized federation. A number of efforts to reform Canada’s system of government, such as efforts to introduce binding referendums and enforce fixed election dates, have been diluted owing to the Crown’s powers. Canada’s emergence as a independent and sovereign state occurred as the Canadian Crown was gradually hived off from the Crown of the United Kingdom; in fact, strictly speaking, the source and foundation of Canada as a sovereign and independent state is the Crown of Canada. The Crown’s powers and privileges also help explain why the government is so dominant in Canada’s legislatures. Even if party discipline is loosened and many more free votes are held, the requirement of royal recommendations for bills involving the expenditure of money, and of royal consent for bills touching on the Crown’s powers and privileges, would grant governing ministries an ability to protect the executive from a very ambitious parliament, if they so chose.

I know this discussion probably won’t convince doubters and haters that the Crown matters. And I know that I see the Crown as being far more important than most because I spend so much time thinking, reading, and writing about it. But I hope that I’ve at least shown why it shouldn’t be easily discounted.

Thoughts, Ben?

(Apologies, as always, for the typos and imperfect grammar.)

The Crown, the Sovereign, and Elizabeth II

My twitter friend Kimberlee asked if I could outline how I understand the difference between the Crown, the Sovereign, and the monarch as a natural person.

Here’s my take. I welcome constructive comments.

The Crown is the repository of sovereign authority. As such, it serves as our concept of the Canadian state. It also serves as the ultimate source of executive authority, legislative authority, and judicial authority in Canada. While a few commentators have argued that the Crown simply means ‘the Government’, this is too simplistic. The government conducts its affairs as a servant of the Crown as the executive power; accordingly, it is wrong to conflate the government and the Crown. Similarly, Parliament is, formally speaking, a body assembled by the Crown to pass legislation and fund the government. This is also why the Crown is part of Parliament: to give its assent to bills that have passed the House of Commons and the Senate. The courts, meanwhile, exist to uphold the law. Yet, in a formal sense, judges do so as agents of the Crown. Although the notion is medieval, the judiciary maintains the laws of the realm, understood as Crown as the body politic (in today’s parlance, the state.)

While all this may seem downright strange, it’s important to recognize that placing sovereign authority in the Crown is no more abstract than placing it in “the people.” The difference lies in how sovereign authority flows. The Crown’s authority flows down, while the authority of “the people” flows up. That’s the fundamental difference between a constitutional monarchy and a republic. Although both can be liberal democracies, their constitutional structures diverge in terms of whether sovereign authority is top-down or bottom-up.

So, who or what is the Queen? The Sovereign (ie Queen or King) is a legal person that possesses the Crown’s authorities and makes the Crown manifest. Rather than being forced to refer to the Crown as an abstract concept in law, we have the advantage of being able to talk about this fictional legal personality. This legal person, in fact, is treated as synonymous with the Crown; the Sovereign and Crown are a single corporate entity. When we say that the Crown is doing this or that, we mean that the Sovereign is doing it as this legal person. We see this in any number of areas. When people sign certain contracts with the government, they are technically signing an agreement with a legal person, the Sovereign. When military officers get their commissions, they receive them from the Sovereign as a legal person and are in a personal legal relationship with the Sovereign. When the Governor General gives royal assent to a new law, s/he is doing so in the name of the Sovereign as the legal person that is simultaneously the state and source of legislative authority.

It’s equally important to note that this legal person is perpetual and never dies. This is why references to the Queen or Her Majesty in law and the constitution still empower or bind the Crown if we have a King and a His Majesty. Legally speaking, it’s still the same, timeless legal person.

This legal person also helps us understand why oaths are sworn to the Queen. In swearing these oaths, individuals are saying that they recognize the sovereign authority of the Crown as the state, as well as the legitimacy of the executive, parliamentary statutes, and the courts. Because this legal person is the Crown, it also explains why we have the concept of sovereign immunity. As the source of legislative and judicial authority the legal person of the Sovereign is immune to certain types of prosecution. This simply means that the sovereign authority, and source of law itself, cannot go against its own laws. But that does not mean that the agents of the Crown, those who acts in the Sovereign’s name, cannot be found to have violated the law or be prosecuted.

Key executive powers known as prerogatives formally belong to this legal person, too. The power to issue passports, ratify treaties, engage in diplomacy, deploy the military, and make appointments resides in the Sovereign. In Canada, the Sovereign has delegated all these powers to the Governor General. In line with the conventions of responsible government and the particularities of statute, the Governor General exercises these powers on the advice of ministers, or ministers themselves have had these authorities delegated to them in law.

The essential point to note here is that the Sovereign and the Crown are treated as a single corporate entity and legal person. As the sovereign authority and the state, all executive, legislative, and judicial affairs are done in the name of the Sovereign/Crown. In formal terms, the Sovereign reigns over us as a legal person, but because the Crown is the state, that simply means that we are under the authority of Canada.

Where does Elizabeth II fit in all this? The woman we call Queen Elizabeth II is the physical representation of the legal personality known as the Queen of Canada. She personifies the Sovereign/Crown of Canada. Indeed, she personifies and represents a number of legally distinct and independent legal personalities, such as the Queen of the United Kingdom and Queen of Australia. When we say that Canada and the United Kingdom have the same Queen, then, what we really mean is that the same natural person, Elizabeth II, personifies and represents two entirely independent and distinct legally personalities.

What else do we know about Elizabeth II as a natural person? We know that she was a Girl Guide when she was a tween, and she a mechanic during the Second World War, prior to become the monarch of various realms in 1952. She owns Balmoral Castle as a natural person, having inherited it from her father as a natural person. She currently owns two corgis and the horse that she owns, Estimate, won the Royal Ascot this year.

Because she personifies and represents legal personalities that are synonymous with the state, however, she is also a natural person like no other. She enjoys the powers and privileges of the legal personalities she personifies. For instance, she does not need a passport to travel because her distinct legal personalities are the authority that grants passports. Similarly, she is not a citizen of any of the states she personifies because she represents the legal personality that grants citizenship.

What would I like Kimberlee and others to take away from all this? Mainly that we should be precise about what and who we are talking about when making reference to the Queen. In a Canadian context, when people talk about “the Queen” they can be referring to Elizabeth II as a natural person or to the Sovereign/Crown of Canada as a corporate entity and legal personality. The former is doubtlessly a British woman, while the latter is purely Canadian in law and the foundation of Canada as a sovereign state.