As a former practicing lawyer – and one who distinguished himself both in study and practice in constitutional law – I am shamefully unable exactly to define the role of royalty in all matters Canadian. Nonetheless the words ringing in my ears are, “Her Majesty by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows“. A clarified reading of that stock preamble to every statute law of Ontario might be, “The Queen, based upon the elected representatives of the people, enacts as follows“. The Statute of Westminster put the matter to rest. Essentially it turned everything about, shifting the power of the Queen back to the representatives of the people.
What I liked about constitutional law is that it relied strictly upon what it said. Its statutory terms were far less ambivalent than the Common Law for example; more logical, if you will, in the sense of deductive rather than empirical and based upon constantly changing precedent. The start of Canada was the British North America Act.
- British North America Act, also called Constitution Act, 1867, the act of Parliament of the United Kingdom by which in 1867 three British colonies in North America—Nova Scotia, New Brunswick, and Canada —were united as “one Dominion under the name of Canada” and by which provision was made that the other colonies and territories of British North America might be admitted. It also divided the province of Canada into the provinces of Quebec and Ontario and provided them with constitutions. The act served as Canada’s “constitution” until 1982, when it was renamed the Constitution Act, 1867, and became the basis of Canada’s Constitution Act of 1982, by which the British Parliament’s authority was transferred to the independent Canadian Parliament.
The federal government and the provinces were continually engaged in battles over the interpretation of who had the exclusive power to govern the manufacture of oleo margarine (for example) based upon a delineation of those powers in Ss. 91 and 92. Seldom however was the rôle or entitlement whatsoever of the Queen at issue.
Notwithstanding the obscurity of the royal prerogative, fealty reigns among Her vassals sworn to loyalty.
The royal prerogative is a body of customary authority, privilege, and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign and which have become widely vested in the government. It is the means by which some of the executive powers of government, possessed by and vested in a monarch with regard to the process of governance of the state, are carried out.
Canada is one of the oldest continuing monarchies in the world.
The majority of us do not fathom the delicacies of constitutional law; but each of us has a fixed opinion about the involvement of the monarchy in our affairs. One of those might be, “I don’t give a damn!“; but most are more precise.
The only argument I can see in favour of the monarchy is – not unlike the Catholic church – its liturgy and ceremony. There’s clearly something fun about watching people in antique costumes riding about in horse-drawn carriages. Lady Diana’s tragic death did some significant damage to that fairy tale theme of royalty; and the Duchess of Sussex has added the disinfecting sunlight of the American perspective to their erstwhile rulers.
Given the little I know of the monarchy, the current reversal of authority from the Queen to the populace leads me to conclude – perhaps precipitously – that in the end it’s all for show. It may however – once again like the Catholic church – offer unwitting solace, faith, comfort and foreseeability. The intellectual strength of that aspiration is not up for contest; it is a matter of personal restoration at whatever price.
The monarchy of Canada is at the core of Canada’s constitutional federal structure and Westminster-style parliamentary democracy. The monarchy is the foundation of the executive (Queen-in-Council), legislative (Queen-in-Parliament), and judicial (Queen-on-the-Bench) branches of both federal and provincial jurisdictions. The Queen of Canada (and head of state) has been Elizabeth II since 6 February 1952.
(T)he Crown today primarily functions as a guarantor of continuous and stable governance and a nonpartisan safeguard against abuse of power. The sovereign acts as a custodian of the Crown’s democratic powers and a representation of the “power of the people above government and political parties”.
The Statute of Westminster gave effect to certain political resolutions passed by the Imperial Conferences of 1926 and 1930; in particular, the Balfour Declaration of 1926. The main effect was the removal of the ability of the British parliament to legislate for the Dominions, part of which also required the repeal of the Colonial Laws Validity Act 1865 in its application to the Dominions. After the Statute was passed, the British parliament could no longer make laws for the Dominions, other than with the request and consent of the government of that Dominion. Before then, the Dominions had legally been self-governing colonies of the United Kingdom. However, the statute had the effect of making them sovereign nations once they adopted it.
The Statute provides in section 4:
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 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.