Academic journal article Review of Constitutional Studies

Some Observations on the Queen, the Crown, the Constitution, and the Courts

Academic journal article Review of Constitutional Studies

Some Observations on the Queen, the Crown, the Constitution, and the Courts

Article excerpt


The great commandment for constitutional theoreticians and lawyers alike ought to be primum non nocere: first, do no harm.

As Canadians begin to celebrate the sesquicentennial of Confederation, it is timely to remember that the Dominion that came into being on July 1, 1867 did so by proclamation of Her Majesty the Queen. (1) One hundred and fifty years later, the Queen continues to reign over Canada.

Naturally, in 1867 the Queen contemplated by the British North America Act was Queen Victoria; in 2017 it is Elizabeth II. Moreover, Canada is no longer a colony of the British Empire, but rather a fully sovereign and independent state. Nonetheless, Canada remains an integral part of the Commonwealth through an act of voluntary association, based on a common allegiance to Her Majesty as head of the Commonwealth and (in Canada's case) as head of state.

The Canadian constitutional framework, as it relates to the monarchy, has changed but little in form since 1867. However, the monarchical principle underlying much of that framework has been modulated by its interaction with other constitutional principles, and its operation, both in Canada and in other Commonwealth countries, has been significantly altered through constitutional conventions and usage.

At the crux of the framework lies a venerable and precious object of striking beauty--the Crown--that has been transformed by constitutional thinkers into an abstract concept to which some would ascribe not just legal and political but also metaphorical and perhaps even metaphysical qualities. In some circles, the Crown has undergone, through an obscure alchemy the formula for which has been largely reserved to initiates and enthusiasts, a transformation into a proliferation of Crowns local and domestic, including the almost lyrical, and entirely virtual, "Crown of Maples."

The Crown is, of course, a useful and convenient means of conveying, in a word, the compendious formal, executive and administrative powers and apparatus attendant upon the modern constitutional and monarchical state. (2) It is also imperative, in a federal state like Canada, that the Crown be distinctly recognizable at not only the central but the provincial level. (3) However, when so employed, the Crown also becomes an abstract concept, and it is in the nature of abstractions to give rise to debate from different quarters and perspectives.

The observations set out in this brief essay have no pretence or ambition of presenting an exhaustive or definitive account on the subject of monarchical institutions in relation to the Constitution of Canada. Rather, they offer some insight into the perspective of a constitutional lawyer who has been in the service of Her Majesty in right of Canada for 35 years, and who has had the privilege of advising on various constitutional matters and appearing before parliamentary committees as an expert witness and before the courts as counsel on behalf of the Crown. Moreover, as certain matters that are touched upon in this essay are still the subject of legal controversy, professional prudence, decorum, and a sense of deference to the court process have dictated a degree of circumspection, if not outright reticence, in formulating these observations. Despite these limitations, it is hoped that these reflections will contribute to the scholarly debate that the study of the Crown in Canada inevitably engenders.

The practice of Canadian constitutional law before the courts is, at bottom, a pragmatic and prudential exercise. In the context of litigation, our courts have generally neither the time nor the inclination to become deeply immersed in broad philosophical and theoretical debates about the divisible and indivisible, corporeal and incorporeal nature of the Crown. It should not be surprising, then, that in in the course of adjudicating disputes, the courts may often be content to rely upon a few well-canvassed constitutional principles and conventions, as well as the occasional legal fiction, in construing and applying the terms and provisions of the Constitution of Canada to the extent that it may be relevant or necessary to the case at hand, without striking off in bold new directions. …

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