Queen's death does not make Charles the King of Canada

legal information

Queen Elizabeth II passed away at the age of 96 on 8 September 2022. She was Queen of the United Kingdom and Commonwealth, including - with or without consent - the lands, waters and peoples of Canada.

The Constitution Act of 1867, in its current form, vests dominion over Canada in the Queen herself — not the Crown, and not the King.

Section 9 of the Constitution Act, originally enacted in London as the British North America Act of 1867 under Queen Victoria

That’s curious. The way this statute is worded, “Authority of and over Canada” does not automatically vest in a new ruler when the old one dies.

Further down the Act, we find that to amend anything regarding the office of the Queen (such as transferring her power to someone else), we need unanimous consent of every provincial legislature, the House of Commons, the Senate, and the Seal of the Governor General (the Crown’s representative in Canada).

Basically, she could not be removed, except by an act of God.

Section 41 of the Act, the “unanimity formula” passed in 1982 when Pierre Trudeau was in office

The Act only makes a single mention of the ‘Crown’, in the preamble. It speaks of a “Desire” to fall under Crown rule, but vests no power there. The only power is vested in the Queen, not her heirs nor successors, per section 9 of the Constitution.

Preamble of Canadian Constitution Act (1867) — a bit less rock ‘n roll than the USA Declaration of Independence (1776) preamble: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

Also, there are no mentions in the Constitution Act of what happens when the Queen leaves office. On the contrary, there are defined procedures for when non-royals die.

Procedure for filling a vacancy in Quebec — no procedure exists for the Executive

The Parliament Act of 1985 ensures continuity of the Canadian federal government when the Queen dies or if the monarchy otherwise collapses, but makes no mention of who assumes executive power.

Parliament of Canada Act, 1985

Then we have the Interpretation Act also of 1985, which appears to protect the Crown’s dominance in Canada. However, as far as executive authority is concerned, this statute conflicts with the Constitution Act which only bestows “Executive Government and Authority” on the Queen, not the Crown.

Interpretation Act, 1985

The Interpretation Act of 1985 attempts to maintain monarchic power over Canada by using ‘Crown’ instead of ‘Queen’ in section 46. Perhaps this was an attempt to correct the implications of the 1982 constitutional amendment?

Definition of Crown from Interpretation Act, was passed federally - without input from provincial legislatures - 3 years after adoption of the ‘unanimity formula’

It looks like the two Acts disagree as to what happens when the Queen meets her demise. The Interpretation makes provisions for her passing, whereas the Constitution leaves a void and a unanimous procedure - politically impossible - for transferring the Queen’s now-deceased authority to another human being.

Can we just go with the Interpretation for expediency? No. In the event of a conflict between the Constitution and any other act, the Constitution prevails. Thus, section 46(1)(a) of the Interpretation Act is arguably null and void in law — the Crown does not inherit “Executive Government and Authority of and over Canada” from section 9 of the Constitution.

Section 52(1) of the Constitution Act, 1982 – The supremacy clause

CBC writes, “The succession of King Charles is instantaneous and automatic and does not require any special action by the Canadian government, Tidridge wrote.”

Charles may automatically become the King of England, but not of Canada. As difficult as the ‘unanimity formula’ makes it to remove the Queen, it makes her equally as difficult to replace once she’s gone.

The takeaway

Crown rule over Canada ended with the long reign of Queen Elizabeth II. Until the “King” is explicitly named in section 9 of the Constitution Act via the unanimous procedure outlined in section 41 of the same, Charles is not the King of Canada.

As of 8 September 2022, the nation is effectively sovereign unto itself! Prove me wrong.

Quebec’s Manicouagan crater lake — Wakata Koichi via twitter

~ Long Live Freedom

Update — Charles says he’s open to being the final monarch