Monarchy in The Canadian Provinces - Federal and Provincial Aspects

Federal and Provincial Aspects

See also: Canadian federalism

Since the Queen transcends and encompasses both the central and provincial governments, the Canadian headship of state is not a creature of either jurisdiction. Through the offices of the Governor General and Lieutenant Governor, the Queen reigns impartially over Confederation as a whole.

Dr. Michael D. Jackson LVO CD

The Canadian monarchy is a unitary institution over all eleven of Canada's governmental spheres (one federal and ten provincial); the monarch reigns impartially over the nation as a whole, with the headship of state being solely a part of neither the federal nor provincial jurisdictions. At the same time, the one Crown operates separately within each area of governance; it is so central a part of the various governments that any constitutional amendment that affects the monarchy in any or all of them requires the unanimous consent of all the provincial legislatures, along with the federal parliament, rather than the two-thirds majority necessary for most other amendments. There is one monarch, "but she acts in different rights". Such is demonstrated when the sovereign takes on different legal personas in a case wherein a provincial government files a lawsuit against the federal and/or another provincial government. Also, as it was put in Attorney-General of Canada v. Higbie: "When the Crown, in right of the Province, transfers land to the Crown, in right of the Dominion, it parts with no right. What takes place is merely a change of administrative control." The Canadian Crown thus both remains above and links together all of the jurisdictions in Confederation; it has been described as a "divided crown," or a "compound monarchy".

The arrangement provides that each of Canada's provinces are all sovereign of each other and the federal realm. The sovereignty of the provinces is passed on not by the governor general or federal parliament, but through the overreaching Crown itself to the monarch's viceregal representatives in the provinces, the lieutenant governors, and the limitation that they act, in the Queen's name, only on the advice of the relevant provincial ministers of the Crown or legislature. The Supreme Court found in 1918 that provincial legislation cannot bind the federal Crown except "by express terms or necessary intendment", nor can the Queen in her federal council or parliament legislate for the provinces beyond the provisions of the constitution. The provincial Crown "exists to safeguard the independence of each province".

The system was set up as such by the Fathers of Confederation because they saw such a use of constitutional monarchy as a bulwark against any fracturing of the Canadian federation. In 1939, Sir Shuldham Redfern, then Secretary to the Governor General, said that, without a common allegiance to the Crown, the regions of Canada might break up. The British North America Act, 1867 (now the Constitution Act, 1867), was written so as to reflect the view of John A. Macdonald and the Earl of Derby that the provinces were subordinate to the federal Crown, with the lieutenant governors appointed by the governor general and not—as is done with the governors of the Australian states and was suggested be integrated in Canada by the 1979 Task Force on National Unity—by the Queen herself. Further, while the lieutenant governors did each hold a great seal, summoned and prorogued parliament in the Queen's stead, and granted Royal Assent to bills that bore the Queen's name, it was still expected that the latter be given in the name of the governor general. This rule was never followed in Ontario and Quebec, though, and the other provinces soon followed suit. Then, in 1882, the legitimacy of the lieutenant governors as direct representatives of the monarch was established by the Lord Watson of the Judicial Committee of the Privy Council in the case of Maritime Bank v. Receiver-General of New Brunswick. In his ruling, which discovered a provincial guise of the Crown and thus further empowered the provinces, Watson stated: "the Lieutenant Governor... is as much a representative of Her Majesty, for all purposes of Provincial Government as the Governor General himself is, for all purposes of Dominion Government." As well, the Judicial Committee found in 1932 that there was a definite separation between the provincial and federal treasuries; "It is true there is only one Crown, but as regards Crown revenues and Crown property by legislation assented to by the Crown there is a distinction to be made between the property in the Province and the revenues and property in the Dominion. There are two purses." The Lord Denning of the Court of Appeal of England and Wales ruled in 1982 that "the Crown became separate and divisible, according to the particular territory in which it was sovereign... It was separate and divisible for each self-governing Dominion or province or territory."

The Crown became the foundation of "the federative principle in Canada." The lieutenant governors' equal status to the governor general is crucial to provincial co-sovereignty and federalism, the monarchy having been said to provide flexibility to the Canadian federation and thus be a factor its sustainability. Indeed, provincial premiers have used the monarchy to the advantage of their respective provinces, recognising that "the Crown has been the engine or propeller of expanded provincial constitutional authority in the shifting balance of power within the Canadian confederation." David Smith opined that, by being separated from the monarch by two levels of viceregal representation, the Canadian populace has been made more accepting of the Crown's role in determining who will govern in a minority parliament situation, while Canadian republican leader Tom Freda opposes the system, calling the lieutenant governors "redundant and obsolete", as does Parti Québécois leader Pauline Marois, who opined that the Lieutenant Governor of Quebec is a "waste of money".

Today, though they continue to be appointed and dismissed by the governor general and only the federal parliament may initiate constitutional changes to their role, the lieutenant governors are now considered to be direct representatives of the sovereign, which has accorded them the right to receive audience with the Queen; a practice begun by the Lieutenant Governor of Alberta in 1956. They are also still only accorded the style of His/Her Honour, which is inferior to the governor General's style of His/Her Excellency, and may receive only a 15-gun salute, as opposed to the 21-gun salute given to the federal viceroy. The relationship between all the governments has been facilitated since 1970 by triennial meetings of the 11 viceroys (and now the three territorial commissioners as well), hosted each time by a different lieutenant governor in their province, though the chairperson is always the governor general.