Canada is constitutional monarchy, a term which refers to a system of government headed by a monarch whose actions are both constrained and compelled by a constitution.
The monarch in Canada is the Queen. The Constitution Act of 1867 says so expressly and the Constitution Act of 1982 affirms it implicity.
But the question that neither constitutional text can answer is whether the Canadian monarch is to be styled the Queen of England or the Queen of Canada, or something else, like the Queen of the Commonwealth, because both constitutional texts refer to the Queen simply as the Queen.
The distinction between the Queen of England and the Queen of Canada arose today in a comparative constitutional law class I am teaching as part of Southwestern Law School’s Vancouver Summer Law Program at the University of British Columbia.
One of my excellent students made the argument that it is improper to refer to the Queen of England in the context of Canadian constitutional law because the Queen of England possesses neither the legal authority nor the political legitimacy to act in Canada. There is only a Queen of Canada in Canada. She is the one who serves as the monarch. And even though both the Queen of England and the Queen of Canada are in reality the same private person, they are two constitutionally distinguishable legal persons.
This is a clever move that helps defend the claim that Canada is a sovereign state with its own monarch, and as a consequence that Canada is indeed truly an independent state that is not at all subject to the authority, ceremonial or not, of a foreign actor.
It is of course merely a legal fiction to distinguish between the Queen of England and the Queen of Canada. But it is a legal fiction upon which hinges much if not all of Canadian constitutional law, at least since 1982 when the Canadian Constitution was “repatriated” from the Parliament of the United Kingdom to the Parliament of Canada.
On this theory of split legal personalities, when the Canadian Parliament passes a bill, which is then given Royal Assent to ultimately become law (this is the equivalent of presentment in the United States), it is therefore not correct to state that the Queen of England signs the bill into law; it is the rather the Queen of Canada who signs the bill into law. Likewise, when a new Justice is named to the Supreme Court, it would be inaccurate to say that the formal appointment is made by the Queen of England; the right answer is that the appointment is made by the Queen of Canada.
This legal fiction is fascinating. But whether this legal fiction is convincing as a matter of constitutional law may be less important than whether it is convincing as a matter of public opinion.
With republican sentiment on the rise in Canada, the monarchist movement may have to look for a line of argument that resonates more intensely with Canadians than this very technical distinction between the Queen of England and the Queen of Canada.