(OTTAWA) As solemn and historic as the passing of Queen Elizabeth II may be after 70 years of reign, little changed on Thursday in terms of governance in Canada.
Posted at 4:55 p.m.
Under the Constitution, the sovereign officially remains Canada’s head of state regardless of who holds the position at any given time, says Philippe Lagassé, associate professor of international affairs at Carleton University and expert on the role of the Crown in the so-called “Westminster” parliamentary system.
Therefore, the Queen’s succession to her eldest son, Charles, is automatic, without any disruption to the governing bodies that sit in her name – or to laws, oaths and other legal documents issued in her name.
“This transition does not require any action on the part of Canada,” said Professor Lagassé. The saying: ”The queen is dead, long live the king!” applies here as in the United Kingdom. »
In “common law”, recalls Professor Lagassé, the Queen and the King are the “same legal person”, because the Crown is what is called an “individual legal person”.
“This means that in their official capacity, the legal personality of the Queen (or) King does not change when different natural persons hold the office. This further means that all legal documents and instruments issued in the Queen’s name or mentioning the Queen will automatically apply and be deemed to be issued by the (new) King. »
This brings to mind the oath of allegiance to the Crown, required in a host of circumstances, including becoming a Member of Parliament, a member of the Canadian Armed Forces or a Canadian citizen. “There is therefore no need to ”re-swear” or ”re-sign” anything,” drops Mr. Lagassé.
Parliament does not have to be dissolved
But it has not always been so. In the past, the death of a monarch meant that parliaments sitting in his or her name in the United Kingdom and its colonies, including those that became Canada, were automatically dissolved and elections had to be held.
The ‘dissolution by devolution of the Crown’, as it is called, stemmed from the ‘premise that it was the sovereign who called a parliament personally, and that therefore a parliament should die with the king or queen who had summoned him,” says James Bowden, a recognized authority on these matters, in an April 2021 post on his academic blog “Parliamentum.”
This practice actually reflected “an older medieval status of the Crown”, when parliaments sat infrequently, summoned by the monarch only when necessary, Mr Bowden recalls. This has obviously become “impractical and disruptive” in more modern times, as parliaments began to sit regularly and the role of the monarch became more ceremonial.
Dissolution by devolution of the Crown was abolished in the UK in 1867, and Canada’s newly created Confederation Parliament followed suit in its first session the same year, Bowden said.
Today, the Parliament of Canada Act expressly states at the outset that “the devolution of the Crown does not operate to suspend or dissolve Parliament, which may continue to function as if there had been no devolution”.
Similarly, the citizenship oath was changed to swear allegiance to the Queen and “her heirs and successors”, explicitly removing the need to re-swear the oath to a new monarch.
Quebec had to hurry
The provinces and territories have all adopted similar provisions. However, in its zeal to remove references to the monarch from the law governing the National Assembly in 1982, Quebec also removed a provision that expressly stated that the legislature would not automatically dissolve upon the death of the sovereign.
Historians and constitutional experts have sounded the alarm, arguing that the omission could plunge Quebec into a general election as soon as the Queen dies — and potentially mean that any laws passed after her death would be repealed. The Government of Quebec tabled a bill in March 2021 to rectify this omission, and the “Act respecting the devolution of the crown” was finally adopted in June 2021 – still only 15 months before the death of the queen.
While government business in Canada will continue undisturbed, Mr. Lagassé reminds that certain “formalities” will still have to be respected. For example, the Queen’s Privy Council for Canada, which includes all current and former ministers, must meet when a new monarch ascends the throne. The Governor General, representative of the Crown in Canada, must also issue a proclamation on the new monarch.
“It is important to note, however, that this step only affirms what has already happened in law,” said Mr. Lagassé.
There is also a specific protocol surrounding the official mourning period, which the Governor General’s office declined to discuss in advance.