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Letter to the Editor
Gavin Guthrie


While Edward McWhinney (Guest Editorial, Autumn 2005 issue) is correct that the legal ties between the Canadian and UK governments have “withered away,” and that for over fifty years we have had a Canadian Governor General to represent the Sovereign in Canada, it appears, that the knowledgeable scholar is somewhat misguided in his belief that constitutional developments over the past century have pushed Canada to a point where we are but one step away from becoming a republic with our Governor General as the de facto president. 

I say this because McWhinney's theories seem to be formed on not only an inability to recognize that the Crown and the UK government are distinctly separate entities, but also on the incorrect assumption that the Sovereign's role in Canada has somehow been reduced to nothing more than giving formal consent, in consultation with her UK Privy Council no less, to the Canadian Prime Minister's recommendation for the Governor General, and on the mistaken belief that the line of succession to the Crown lies solely within control of the UK Parliament. By claiming all of the above, he is not-so-subtly suggesting that the Crown has almost no authority left in Canada, and that last remaining link to the Queen makes Canada's government still subservient to the British. 

But, in fact, he has it all backwards; the Canadian Constitution continues to vest all executive authority in the Crown, and the British government has no influence in our affairs whatsoever. 

It was with the 1931 Statute of Westminster that the UK's ability to legislate for Canada effectively ended, and the last constitutional ties between our governments were completely severed with the Canada Act of 1982. As the Constitution Act 1867 still creates Canada as a nation unified under, and with all executive authority vested in the Crown Canada is therefore now a wholly independent constitutional monarchy which, though it happens to willingly share its Crown in a symmetrical fashion with fifteen other nations, still has a Queen of Canada who performs her constitutional functions within Canadian jurisdiction completely apart from her constitutional role in the UK, or any other Commonwealth Realm, including appointing her Governor General, on the sole advice of her Canadian Prime Minister, and under the Great Seal of Canada, to represent her federally. 

As no Act of the UK Parliament has effect in this country, the Crown in Right of Canada is under the control of the Canadian Parliament alone, including, with the 1701 Act of Settlement a part of our Constitution, the line of succession to it (hence the Statute of Westminster outlines the convention that no Realm, including the UK, can alter their line of succession without the consensual adoption of the same change by all the other Realm parliaments). And though the 1947 Letters Patent issued by His Late Majesty King George VI do allow the Governor General to exercise the Royal Prerogative and reserve powers of the Crown, it is only on the Sovereign's behalf; since they still clearly state that the powers lawfully belong to the Monarch, in no way have the Letters stripped the Queen of her constitutional authority. 

So, the “Gordian Knot” has indeed “long since been cut, on a basis of mutual consensus and joint, reciprocal action between London and Ottawa.” But, that was between our governments and parliaments only, and the process actually served to make Canada a sovereign constitutional monarchy, not some pseudo colony. Thus, legally there is actually much left to be changed before Canada can exist without the Crown, an institution that is far more deeply rooted in our nation than simply in the minds of aging veterans. 

Our Parliament could certainly engage in the legal acrobatics that McWhinney suggests. It would cut our ties to the Crown without undertaking the Herculean task of constitutional reform. But without the Crown actually being removed by the proper amending process the country would merely become some bizarre pseudo republic with a president who still constitutionally derived their power from the Sovereign they continued to legally represent. I doubt either republicans or monarchists would accept such changes, and so, until the constitution is opened for the purpose of creating a republic, the Crown will continue indefinitely with the sentimental, as well as the legal, attachments still firmly in place. 

Gavin McGill Guthrie

Canadian Parliamentary Review Cover
Vol 28 no 4

Last Updated: 2020-09-14