!e Constitution Act, 1982 and the Crown: Twenty-Five Years Later Kenneth Munro* In a splendid ceremony on Parliament Hill and exercises all prerogatives of the Crown with- on 17 April 1982, Her Majesty proclaimed the in the federal sphere of jurisdiction. %e third el- Constitution Act, 1982.1 When the Prime Min- ement consists of the ten Lieutenant-Governors ister and premiers had met in November 1981 to who reside in their respective provincial capi- develop procedures for patriating and amend- tals and exercise the prerogatives of the Crown ing our Constitution, they failed to propose any within the provincial sphere. While sovereignty revisions with respect to the monarchy, except is divided within Canada between federal and for section 41(a) of the Constitution Act, 1982. provincial jurisdictions,4 the Queen combines Under this section, the unanimous agreement the two in her own person, giving unity to these of the Governor General, Senate, House of three elements of our Maple Crown. Commons, and the legislative assembly of each province is required to amend the Constitution Any discussion about the Crown over the in relation to “the o#ce of the Queen, the Gov- past twenty-&ve years would naturally examine ernor General and the Lieutenant Governor of a the powers of the Crown which are derived from 5 province.”2 In e$ect, by entrenching the monar- two sources: statute and common law. Parlia- chy in the Constitution, our leaders determined ment has conferred wide powers on our Crown that Canada would remain a constitutional to administer and to legislate. Since these are monarchy in perpetuity. %e twenty-&'h anni- delegated powers, they are subject to change by 6 versary of the proclamation of the Constitution Parliament. We o'en think that the monarch Act, 1982 provides an appropriate occasion to holds o#ce because of hereditary right, but this remind ourselves of the nature of our Canadian is not the case. Since the Glorious Revolution in Crown and to ask whether this institution can Britain in 1688, the Sovereign holds o#ce at the evolve, or has evolved, to meet the needs of Ca- will of Parliament. In addition, since the Statute 7 nadians. of Westminster was passed in 1931, Canada has had a role in the selection of its monarch be- %e Canadian Crown, the only constitu- cause that statute reads: tional monarchy in all of continental America except for Belize, is made manifest in a team [A]ny alteration in the law touching the Suc- cession to the %rone or the Royal Style and of persons: the &rst is the monarch who lives Titles shall herea'er require the assent as well outside the country. We share the person of our 3 of the Parliaments of all the Dominions as of Queen with &'een other countries. She has un- the Parliament of the United Kingdom.8 failingly carried out her role, rooted in Canadi- an tradition and experience, albeit shared with Indeed, the Parliament of Canada changed members of the Commonwealth of Nations of the royal style and title of our Sovereign under which she is the Sovereign. the Royal Style and Titles Act of 1953,9 thereby making the Queen, on 28 May 1953, o#cially %e second element of the Canadian Crown Queen of Canada. is the Governor General, who resides in Ottawa Constitutional Forum constitutionnel !" Several powers were speci&cally granted to pointed out that legally “the Governor General the Sovereign in the Constitution Act, 1867,10 can exercise any of the Queen’s powers in Can- and the amendments made in the Constitu- ada.”15 %e converse is not true, however; “the tion Act, 1982 did not change these powers. For Queen cannot exercise the Governor General’s example, the Queen authorizes the Governor powers because they are conferred on him, and General to appoint deputies, she is command- not on the Queen, by the British North America er-in-chief of the armed forces, and she decides Act.”16 Where a function is purely ceremonial or where the national capital is to be located. In does not require the production of some instru- addition, Parliament consists of the Queen, the ment of lawful e$ect, the Queen can o#ciate; Senate, and the House of Commons; the Queen otherwise, she cannot unless Parliament passes may appoint Senators; Royal Assent is given in a royal powers act similar to the one passed in the Queen’s name; and the Queen may admit Australia in 1973.17 %erefore, the Queen might new provinces and territories.11 give Royal Assent to legislation at the federal level or open Parliament, but she could not ap- Even though no modi&cation was made by prove an order-in-council or e$ectively replace statute to the institution of the Crown in 1982, the Governor General during a royal visit.18 the powers exercised by the Governor General, in particular, have changed over the past twen- While the Letters Patent purports to del- ty-&ve years. %e Governor General’s duties egate all royal powers in relation to Canada to have expanded and the powers have increased, the Governor General, Mallory has noted an not because of the legislated changes embed- apparent “understanding at the time that all ded in the Constitution Act, 1982, but because matters which prior to that time had been based several Governors General and their respective on direct advice to the Sovereign would not be governments have interpreted the Letters Pat- transferred to the Governor General without ent Constituting the O!ce of Governor General the consent of the Palace.”19 However, over the of Canada (Letters Patent) in the broadest pos- years, Canadian governments have sought and sible manner. In her memoir, Adrienne Clark- received the Sovereign’s consent to transfer a son wrote that: great deal of the Queen’s remaining power to the Governor General. For example, with the estab- Even many politicians don’t seem to know that lishment of the Order of Canada in 1967 and the &nal authority of the state was transferred the Order of Military Merit in 1972, the Queen from the monarch to the Governor General 20 in the Letters Patent of 1947, thereby making became the Sovereign of these orders, while Canada’s government independent of Great the Governor General became the chancellor of Britain. %is means that it is the Governor these two Canadian orders with their respective General who is the guarantor of responsible chancelleries and the secretary of the Canadian government and of our parliamentary democ- system of honours housed at Rideau Hall.21 Al- racy.12 though state visits by Governors General pre- date the issuance of the Letters Patent (Lord %e Letters Patent was issued on 1 October Willingdon made a state visit to Washington 1947 by King George VI, and conferred on the in 1928),22 these visits have become, since the Governor General “all powers and authorities days of Governor General Roland Michener, an lawfully belonging to Us in respect of Cana- important function performed by the Governor 13 da.” Former Governors General and consti- General rather than the Queen. While statute tutional scholars have focused on this phrase. dictates that the Governor General must seek Jules Léger has written that since 1947, “the the Queen’s consent to travel outside Canada,23 Governor General had been authorized to ex- the Queen has encouraged her Governors Gen- ercise all the powers and authorities of the Sov- eral to pressure the Canadian government into ereign with regard to Canada, but in practice, letting them undertake such state visits. In his a few o#cial acts . had continued to be per- biography of Michener, Peter Stursberg claims 14 formed by the Sovereign.” Likewise, the noted that Michener told him that the Queen encour- constitutional authority, James R. Mallory, has aged him to go abroad on visits as Canada’s () Volume 17, Number 2, 2008 head of state. In conversation with Michener, During the royal visit to Edmonton in the the Queen said: summer of 1978, Prime Minister Pierre Trudeau discussed his proposal for constitutional reform I go abroad representing the Commonwealth with the Queen. A few months before, the min- but I’m always accepted as the Queen of the ister of justice, the Honourable Ron Basford, United Kingdom. I can’t represent Canada on these state visits. I think that you should, in had gone to London to present the proposed your role [as Governor General], encourage changes to the Queen, who “was quite happily your Government to send you on these vis- satis&ed that nothing would be changed in the 29 its.24 Crown’s essential relation to Canada.” With the Queen’s approval, the government proposed He did just that and so did subsequent Gover- a White Paper, and then legislation in 1978, nors General. In these and other areas, the Ca- which modi&ed the Crown’s statutory position nadian government, the Queen, and the Gov- in Canada. ernor General have worked together to expand the interpretation of the Letters Patent to en- Trudeau’s June 1978 White Paper on consti- large the role of the Governor General. Other tutional change — A Time for Action30 — was examples abound. followed by detailed dra' legislation: Bill C- 60.31 Editorial comment in the English press in Jules Léger claimed that a'er “her visit in Canada focused on what Trudeau was trying October 1977, Her Majesty agreed that certain to do to the Queen. As Richard Gwyn noted: diplomatic functions be ‘repatriated’ to Cana- “By raising the Governor General to the new da.”25 Consequently, new arrangements related status of ‘First Citizen’ of Canada, who would to diplomatic appointments and the various open and dissolve Parliament in his own name exchanges connected with them were made in rather than in Hers, Trudeau appeared to be 1977.