I. Introduction

Although the Crown now draws much of its authority from statute and the Constitution, the Crown’s non-statutory authorities, including Crown prerogatives, remain a significant source of public authority in Canada.^[1]

Owing to their shared origins, there are several similarities between the prerogatives of the Crown in Canada and the United Kingdom. Indeed, the substance of the prerogatives is generally the same in Canada as it is in the United Kingdom.^[2] Like in the United Kingdom, the Crown’s prerogatives can be limited or abolished by statute in Canada.^[3] And in both countries, the courts can determine the existence and the scope of prerogatives.^[4] The exercise of the Crown’s prerogatives is subject to some form of judicial review in Canada and the United Kingdom, albeit to varying degrees and on differing grounds.^[5]

Much British case law and scholarship concerning the scope of Crown prerogatives, their relationship with statute and the judicial review of their exercise will be relevant to similar issues in Canada. Indeed, Canadian courts continue to rely heavily on British case law and scholarship when dealing with cases of prerogative.^[6] But despite these shared origins and continued similarities, Canada’s constitutional settlement means that there are also significant differences in the functioning of Crown prerogatives in Canada and the United Kingdom.

First, since the prerogatives of the Crown originated in the United Kingdom, the question of their reception into the law of Canada and continuation to the present arises in a way that it does not in the United Kingdom (subject to such complexities as there may be in Northern Ireland and Scotland). To state the obvious, the Crown cannot exercise a Crown prerogative not received into Canadian law.

Second, unlike the United Kingdom’s constitution,^[7] Canada’s Constitution is entrenched supreme law.^[8] The Constitution of Canada contains some provisions that speak to the same subject matter as the Crown’s prerogatives.^[9] This raises the issue of the extent to which these constitutional provisions should be understood as replacing prerogatives. The fact that what might once have been a prerogative power is in fact a constitutional power may affect who can exercise it; the extent to which that power can be abolished or limited by statute, rather than by constitutional amendment; the legal limits to which it is subject; and the degree to which its exercise is open to judicial review.

The third difference is that, unlike the United Kingdom, Canada is a federation, with sovereign authority divided between the Parliament of Canada and the legislatures of the provinces and, by extension, between the government of Canada and the governments of the provinces. This division raises the issue of which order of government and who within each order exercises which portion of the Crown’s prerogatives. Further complicating matters is the Crown’s relationship with the courts, which stand partly astride the division of federal and provincial matters. The Crown prerogative is undoubtedly a source of lawful authority in general, but the person claiming it as the basis for their authority to act must be able to establish that they can lawfully exercise the prerogative.^[10]

These differences underscore the limits of reliance on British case law and scholarship and help make the case for more distinctive Canadian scholarship on the Crown and its prerogatives. That scholarship should be grounded in the English legal tradition from which it emerges, but sensitive to the new questions raised by Canadian circumstances. They also suggest a need for greater engagement with parallel jurisprudential and scholarly debates in other countries whose legal systems find their origin in English common law and have an entrenched, codified constitution, particularly those that are federations. The most similar case to Canada’s is Australia’s, though it is by no means the only one. There is a wealth of Australian case law and scholarship on Crown prerogatives and related issues.^[11] Yet, unlike on Crown immunity,^[12] there is little Canadian engagement with Australian debates on the prerogative.

In this article, I examine the points of divergence between the Crown prerogatives in Canada and the United Kingdom with a view to identifying areas that call for additional work from a distinctly Canadian perspective and from a comparative perspective with other similarly situated countries.

II. Crown, Law and Convention

Before examining the points of divergence, I think it useful to provide a basic account of the concepts at play throughout the analysis: the concept of the Crown, the necessity and sources of lawful authority and constitutional conventions as the basis for the legitimate exercise of lawful authority.

Concept of the Crown

The starting point for a discussion of Crown prerogatives is to clarify what is meant by the Crown. After all, the term “Crown” has multiple senses in law. The Crown – at base a “piece of jewelled headgear” – is a metaphor for Her Majesty the Queen in her official capacity as distinct from her personal capacity.^[13] In this sense, the Crown is equivalent to the concept of the state and holds sovereign authority.^[14]

But the Crown has long been recognised as divisible.^[15] The principal division in Canada is between the Crown acting for federal purposes through federal officials (Her Majesty in right of Canada) and the Crown acting for provincial purposes through provincial officials (Her Majesty in right of the province).^[16] One can refer to the federal Crown and provincial Crown as shorthand, still also to the Crown in its federal and provincial capacities.

Yet, at both the federal and provincial levels, there is further division between the Crown in its executive capacity (which often means the Queen’s representatives, the Governor General and lieutenant governor, acting on the advice of the Queen’s Privy Council for Canada and the executive council of the province) and the Crown in its legislative capacity (Her Majesty by and with the advice and consent of the Senate and the House of Commons or the legislative assembly of the province).^[17] One can also refer to the Crown in its legislative capacity as the Crown in Parliament, though the term is less common in Canada than in the United Kingdom.^[18] Although, in formal terms, their role is in part to advise the Crown on lawmaking and they are summoned to meet by the Crown, members of the Senate, the House of Commons and the legislative assemblies do not hold office under the Crown.^[19]

Though less often mentioned, the Crown also has a judicial capacity,^[20] which partly follows the division between the federal and provincial orders, but partly transcends it because of the unified superior courts of the provinces,^[21] not to mention the unifying role of the Supreme Court of Canada.^[22] The lack of personal involvement of the Queen and her representatives in judicial functions and the constitutional protection of judicial independence differentiate the functioning of the judiciary from that of the Crown in its other capacities, but the judges still hold office under the Crown and exercise Crown authority.^[23]

Although the term Crown is perhaps most often used to refer to the federal or provincial executive,^[24] it would be wrong to say that the term necessarily refers to the executive.^[25] As the relationship between the Crown in its judicial capacity and the Crown in its other capacities makes clear, there can exist stark separation of functions and protection of independence within the larger concept of the Crown.^[26] One can also point to the Crown in Parliament’s monopoly on legislative power or the independence of the attorney general from the rest of the executive as instances of autonomy within the concept of the Crown.^[27]

Distinction between the Crown’s prerogative and other non-statutory authorities

There is longstanding debate about the definition of the Crown prerogative, often cast as between the definitions proposed by William Blackstone and A.V. Dicey.^[28] Blackstone defines the prerogative as “that special pre-eminence which the King hath over and above all other persons and out of the ordinary course of the common law in right of His royal dignity”.^[29] For his part, Dicey defines the prerogative as “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown”.^[30]

The Supreme Court of Canada has adopted Dicey’s broad definition, yet distinguished between the Crown prerogative and the powers flowing from the Crown’s treatment by the law as a natural person.^[31] The better view, encapsulated by Blackstone’s definition and reflected in the Court’s treatment of natural person powers, is that the Crown’s prerogatives are distinct from the Crown’s powers to do what a natural person could do under ordinary law, such as to own property, to contract, to make payments or to sue.^[32]

On this understanding, the Crown’s prerogatives allow the Crown to do what no other person could, such as conclude treaties, send forces to war, appoint ministers or prorogue the legislature. The Crown’s prerogatives also give the Crown special proprietary rights. For their part, the Crown’s immunities modify the application of the ordinary law to the Crown, such as by exempting the Crown from injunctions and other mandatory orders.^[33]

Relationship between law and convention

The rule of law requires that the exercise of public authority be grounded in a legal source.^[34] The Crown in its various capacities can draw on authorities whose source is the Constitution, statute or the common law, the latter of which recognises Crown prerogatives.^[35]

The fact that there is legal authority for the Crown to do something is not always sufficient for it to be legitimate. Legitimacy requires that legal authority also be exercised in a manner consistent with constitutional convention.^[36] In nearly all cases, for instance, it would be illegitimate for the Queen or her representatives to exercise their legal authority unilaterally, rather than on the advice of responsible ministers.^[37] Ministers are in turn answerable to the Senate, the House of Commons and the legislative assemblies for their advice and for the implementation of decisions made on their advice. Although conventions do not have direct legal effect,^[38] they are part of the context in which the common law, statute and the Constitution operate.^[39]

III. Origin, Reception and Continuity

Having laid down those basic concepts, I turn to the origin of the prerogatives of the Crown and their reception and continuation as part of Canadian law.

English origins of the Crown’s prerogatives

The origins of the Crown’s prerogatives are historically and conceptually prior to the common law. What are now known as the Crown’s prerogatives reflect the Crown’s political and military position and customary role as sovereign.^[40] This role predates the development of what we now know as the common law. The common law itself is the product of the adjudication of disputes by judges appointed by the Crown to dispense justice in its name.^[41] Although they are not the focus of this article, the Crown’s immunities largely reflect the Crown’s relationship with a court system it established for the purposes of doing justice among its subjects.^[42]

As a result of centuries of English constitutional developments, the Crown could no longer administer justice personally and the Crown’s prerogatives became subject to the common law.^[43] The courts came to determine the existence and scope of the Crown’s prerogatives.^[44] Although the common law is not the ultimate source of those prerogatives, it recognises them and gives them legal effect.^[45] The common law also imposes limits that apply to the prerogatives generally.^[46]

The emergence and consolidation of parliamentary sovereignty, reflected in the Bill of Rights 1689 and the Act of Settlement 1701, further made the Crown’s prerogatives subject to statute.^[47] The Crown-in-Parliament could abolish or limit the prerogatives exercised by the Crown in its executive and judicial capacities. The development of the convention that the sovereign would exercise their authorities, including royal consent and royal assent, on advice further limited the Crown’s ability to prevent such regulation of its prerogatives.^[48] Barring abolition, however, the prerogatives continued to be recognised at common law.

In time, the exercise of the prerogatives that remained with the Crown became subject to the convention that they would nearly always be exercised on the advice of ministers answerable to the House of Commons.^[49]

Reception of the Crown’s prerogatives in Canada

The Crown’s prerogatives, as previously modified by English statutes,^[50] were received into the common law in each colony and territory now forming part of Canada.^[51] The prerogatives received into the common law were generally of the same scope and nature as in England.^[52] After reception, the Crown’s prerogatives could be further modified by imperial statute, as the Parliament of Great Britain and later of the United Kingdom retained supreme legislative authority over colonies and territories.^[53]

The Crown’s prerogatives could also conceivably be modified by colonial statute, though there were significant limits on the extent of such modification.^[54] There was the real possibility of reservation of royal assent or disallowance.^[55] The colonial legislatures could not legislate extraterritorially, so a prerogative whose exercise would stretch beyond the colony’s boundaries could not be altered.^[56] And, in any event, prior to the Colonial Laws Validity Act 1865’s clarification of the restrictions on the powers of colonial legislatures, there may have been doubt about whether such a statute would have been repugnant to “fundamental principles” and therefore invalid.^[57]

Continuation of the Crown’s prerogatives

When the Province of Canada, New Brunswick and Nova Scotia were united to form Canada in 1867, the governing principle was one of maximizing legal continuity.^[58] Section 129 of the Constitution Act, 1867 provides that “Except as otherwise provided by this Act, all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union, and all Courts of Civil and Criminal Jurisdiction, and all legal Commissions, Powers, and Authorities, and all Officers, Judicial, Administrative, and Ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made; subject nevertheless (except with respect to such as are enacted by or exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland), to be repealed, abolished, or altered by the Parliament of Canada, or by the Legislature of the respective Province, according to the Authority of the Parliament or of that Legislature under this Act”.^[59]

Section 129 continued the “law[] in force” in the three founding colonies “as if the Union had not been made”. The term “law” in s 129 refers not only to colonial and imperial statutes, but also to the common law.^[60] Since the common law recognises the Crown’s prerogatives, the prerogatives were in effect continued by s 129.^[61] As the Crown’s prerogatives are a matter of public law, they are equally part of Quebec law as of the law of the other provinces.^[62]

Section 129 provides that this principle of legal continuity is subject to an exception: the law, including the Crown’s prerogatives, is continued “[e]xcept as otherwise provided by th[e] [Constitution Act, 1867]”. Section 129 thus contemplates that the Constitution Act, 1867 may provide otherwise, altering or even abolishing what had been provided for by pre-1867 law, including the Crown’s prerogatives recognised at common law.^[63]

Section 129 also provides that the law continued by it could be “repealed, abolished or altered by the Parliament of Canada, or by the Legislature of the respective Province, according to the Authority of the Parliament or of that Legislature under th[e] [Constitution Act, 1867]”. Parliament and the provincial legislatures can, within their respective jurisdiction, abolish or alter the common law, including the Crown’s prerogatives.^[64] This is consistent with the implication flowing from the Colonial Laws Validity Act 1865 and, now, the Statute of Westminster 1931 that Parliament and the provincial legislatures have the power to alter the common law.^[65] Until the Statute of Westminster 1931, Parliament did not have the power to legislate extraterritorially, so could not legislate in relation to prerogatives exercised outside of Canada, such as the prerogative concerning appeals to the Judicial Committee of the Privy Council.^[66]

As additional provinces were admitted to Canada or established in territory already admitted to Canada, s 129 extended to them or a similar provision was made for them.^[67] The Crown’s prerogatives were thus continued throughout Canada.

A subset of the Crown’s prerogatives is likely also continued by two other provisions. Section 9 provides that “[t]he Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen”. Section 15 adds that the “[t]he Command-in-Chief of the Land and Naval Militia and of all Naval and Military Forces, of and in Canada, is hereby declared to continue and be vested in the Queen”.

In the Patriation Reference, the majority indicated that the terms “Executive Government and Authority” and the “Command-in-Chief” refer to “prerogatives of the Crown” recognised by the common law. These include “the prerogative of mercy or clemency and the power to incorporate by charter so as to confer a general capacity analogous to that of a natural person” and the powers to “appoint[] and receive[] ambassadors, declare[] war, conclude[] treaties and [issue]…passports”.^[68]

Sections 9 and 15 seem to do at least two things. They “continue” the prerogatives associated with the “Executive Government and Authority” and the “Command-in-Chief” of the armed forces.^[69] And they “vest[]” those prerogatives in the Queen, thereby confirming the Queen’s role as head of the executive.^[70] This reading accords with the recital in the preamble to the Constitution Act, 1867 that “on the Establishment of the Union by Authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the Dominion be provided for, but also that the Nature of the Executive Government therein be declared” (emphases added). The recital thus contrasts the “provi[sion]” for the “Constitution of…Legislative Authority” with the “declar[ation]” of the “Nature of the Executive Government”.^[71] In contrast to s 129, ss 9 and 15 do not expressly contemplate the alteration by Parliament of the prerogatives to which they refer.

To ss 9 and 15 might be added the preamble to the Constitution Act, 1867, which refers to Canada having a “constitution similar in principle to that of the United Kingdom”. In the Patriation Reference, the majority referred to the possibility that this recital “may well embrace responsible government and some common law aspects of the United Kingdom’s unitary constitutionalism, such as the rule of law and Crown prerogatives and immunities”, adding that “[l]egislative changes may alter common law prescriptions, as has happened with respect to Crown prerogatives and immunities”.^[72] The preamble may provide further support for continuity of Crown prerogatives, but as the comments in the Patriation Reference suggest, they remain subject to Parliament and the provincial legislatures’ jurisdiction.

IV. Statutes, the Constitution and Constitutional Amendment

In this section, I examine the circumstances in which the Crown’s prerogatives can be limited or abolished by legislation and existing constitutional provisions, as well as the impact of recent developments in the law of constitutional amendment.

Relationship with statutory law

The Crown’s prerogatives can be limited or abolished by statute.^[73] The common law, the federal Interpretation Act and those of most provinces require that Parliament or the legislature do so expressly or by necessary implication.^[74]

If a statute expressly abolishes a prerogative, the Crown can no longer exercise it. If the statute imposes limits on the prerogative, the Crown must comply with them.^[75] And if the statute gives the Crown a statutory power to do something that it could previously have done under the prerogative, but subject to conditions or limitations, the Crown can only exercise the statutory power;^[76] in this scenario, the prerogative is held in abeyance until the statute is repealed.^[77]

There is some doubt about whether Parliament or a provincial legislature’s conferral of a statutory power that overlaps with a Crown prerogative, but is not subject to any conditions or limitations, is sufficient to displace the prerogative.^[78] The issue will have to be resolved by the Supreme Court in a case where it squarely arises.

But there is some indication in the case law that simply conferring an overlapping power is not sufficient. In Khadr, the Supreme Court held that the Department of Foreign Affairs and International Trade Act did not displace the prerogative power to conduct foreign affairs, despite the Act’s provision that, “[i]n exercising his powers and carrying out his duties and functions under th[e] Act, the Minister [of Foreign Affairs] shall, (a) conduct all diplomatic and consular relations on behalf of Canada; [and] (b) conduct all official communication between the Government of Canada and the government of any other country”.^[79] The lack of analysis in Khadr on this point makes it difficult to determine the basis on which the Court reached this conclusion. The Court may, for instance, have been of the view that the provision in the Department of Foreign Affairs and International Trade Act simply serves to describe the Minister of Foreign Affairs’ functions, rather than confer a power on the Minister.

Relationship with existing constitutional provisions

The second point of divergence between Canada and the United Kingdom results from the supremacy of the Constitution of Canada. But like an ordinary statute, the Constitution can limit or abolish a Crown prerogative.

The Constitution is mostly composed of statutes, enacted by the Parliament of the United Kingdom or the Parliament of Canada, and orders having equivalent weight to statutes enacted by the imperial Parliament.^[80] As I have explained, imperial statutes could undoubtedly limit or abolish prerogatives, as could imperial orders admitting new provinces and territories.^[81] So too for federal statutes, particularly those enacted under Parliament’s plenary power to establish new provinces in territories previously admitted to Canada.^[82]

By virtue of the Constitution Act, 1982, these statutes and orders have supremacy over all law in Canada, including the common law.^[83] There can be no doubt that these statutes and orders can limit or abolish prerogatives. So too can subsequent amendments to the Constitution, which themselves have the status of supreme law, provided they are made in accordance with the procedure for amending the Constitution.^[84]

The next question is whether the common law rule requiring that the Crown’s prerogatives be altered expressly or by necessary implication also applies to the Constitution.^[85]

The fact that the Constitution is largely composed of statutes supports the application of the common law rule. And the early cases indicate an expectation that the usual rule would apply. In Lenoir v Ritchie, Gwynne J underscored that “the Crown cannot be divested of its prerogative even by Act of Parliament passed by Queen, Lords and Commons, unless by express words or necessary implication”.^[86] In Bank of Nova Scotia, Strong J (as he then was) echoed this point, suggesting that express words would be required to interfere with the Crown’s prerogatives.^[87] In Liquidators of the Maritime Bank, Lord Watson noted that the provisions of what is now the Constitution Act, 1867 “nowhere profess to curtail in any respect the rights and privileges of the Crown”,^[88] the implication being that the Act would not curtail those rights unless it professed to do so. In Bonanza Creek, Viscount Haldane expressly endorsed this interpretation.^[89] The point has seemingly not been revisited since the Supreme Court of Canada’s decision in Higbie, which cited Bank of Nova Scotia and Liquidators of the Maritime Bank with approval on this point.^[90]

The counterargument, anticipated by the Privy Council in Bonanza Creek, is that applying the common law rule to what is now the Constitution Act, 1867 would be inapt because the Act’s vocation is fundamentally broader than that of an ordinary statute and “[a] Constitution, granted to a dominion for regulating its own affairs in legislation and government generally, cannot be created without dealing with the prerogative, and the British North America Act[, 1867] from beginning to end deals with matters of prerogative, for the most part without expressly naming the Sovereign”.^[91]

In the century since Bonanza Creek, this view of constitutional interpretation has gained favour, particularly after the enactment of the Constitution Act, 1982. In Hunter v Southam, Dickson J (as he then was), writing for the Court, underscored that the “task of expounding a constitution is crucially different from that of construing a statute” and suggested that “reference to the rules of statutory construction” may not always be appropriate in constitutional interpretation.^[92]

There is some reason to think that the prevailing view in the early cases that constitutional displacement of the Crown’s prerogatives would require express words or else necessary implication could be revisited. For now, though, precedent would seem to counsel following the usual approach.^[93] The requirement of express words or necessary implication is, moreover, in keeping with the relationship between the Crown and Parliament contemplated by the preambular recital that Canada is to have a constitution similar in principle to that of the United Kingdom.^[94] This issue is one on which would benefit from further attention, particularly in comparative perspective with other countries with a tradition of requiring that prerogatives be displaced expressly or by necessary implication and entrenched constitutions, notably Australia.

There are a number of existing provisions that overlap with prerogative powers. Some of these impose conditions or limitations. The power of appointment and removal is a prerogative power.^[95] Sections 24, 26 and 32 of the Constitution Act, 1867 confer a power on the Governor General to appoint members of the Senate, subject to maximum numbers, qualifications and, in the case of additional Senators under s 26, the requirement that the Queen approve the appointment. Section 34 gives the Governor General the power to appoint the Speaker of the Senate on the condition that the person be a member of a Senate. Section 34 also gives the Governor General the power to remove the Speaker. Similarly, s 96 confers a power on the Governor General to appoint judges of superior courts of the provinces, subject to qualifications set out in ss 97 and 98. Subsection 99(1) gives the Governor General the power to remove judges of the superior courts “on Address of the Senate and the House of Commons”. Section 59 gives the Governor General the power to remove the lieutenant governor of a province, subject to the requirement that reasons be given to Parliament if the removal occurs within five years of appointment. Each of these provisions partially displaces the prerogative of appointment or removal, as the case may be.

Provisions that confer a power on the Governor General in Council impose the condition that the power be exercised by the Governor General on advice. (The same follows for provisions that confer a power on the Lieutenant Governor in Council.) Since this raises what would otherwise be a convention applicable to the exercise of a prerogative power to a legal requirement, it imposes a condition. Section 58 gives the Governor in Council the power to appoint the lieutenant governor of a province and section 67 the power to appoint an administrator to carry on the government of a province during a lieutenant governor’s “Absence, Illness, or other Inability”. These provisions partially displace the prerogative of appointment and removal. “Until Parliament otherwise provides”, s 131 gives the Governor in Council the power to “appoint such Officers as the Governor General in Council deems necessary or proper for the effectual Execution of this Act”. To the extent that s 131 continues to provide authority,^[96] it would seem to displace the prerogative to appoint federal civil servants.

Since constitutional provisions giving plenary power to make laws and to amend the Constitution of Canada are subject to procedural conditions and substantive limits, they fully displace the prerogative power of legislation, understood as the power to alter rights or impose obligations on citizens. (The Crown in its executive capacity can use the legislative form to structure the exercise of other prerogatives, particularly those related to honours and privileges, such as the issuance of passports.^[97])

Sections 91 to 95 of the Constitution Act, 1867, ss 44 and 45 of the Constitution Act, 1982 and other constitutional provisions confer legislative power on Parliament, which expressly includes the Queen,^[98] and the provincial legislatures, which includes the lieutenant governors as the Queen’s representatives.^[99] Sections 38, 41 and 43 of the Constitution Act, 1982 and the other provisions dealing with constitutional amendments made by proclamation similarly confer power on the Governor General (and, in one case, the Queen), subject to the requirement that proclamation be authorized by appropriate resolutions and that the necessary advice be given by the Queen’s Privy Council for Canada.^[100] These provisions fully displace the power to alter rights and impose obligations. The Crown’s legislative capacity rests solely on the Constitution.

To the extent that royal assent can be understood as a prerogative power distinct from the prerogative power of legislation (which seems doubtful since assent is the expression of the Queen’s role in the legislative process),^[101] ss 55 to 57 and 90 of the Constitution Act, 1867 make the Governor General and lieutenant governor’s powers related to assent subject to conditions. Their power of royal assent and related powers thus displace the prerogative of royal assent.^[102]

Dissolution is another prerogative power.^[103] Section 50 of the Constitution Act, 1867 refers to the Governor General’s power to dissolve Parliament, though arguably makes it subject to a five-year limit. Section 85 similarly provides for the Lieutenant Governors of Ontario and Quebec, arguably subject to a four-year limit (since overtaken by s 4(1) of the Charter). I say arguably because there is some basis to wonder whether ss 50 and 85 require dissolution after the expiry of the time period they provide or simply provide for dissolution by operation of law at the expiry of that period.^[104] To the extent that they require dissolution after a time, they displace the prerogative of dissolution.^[105]

There are some provisions that overlap with prerogative powers, but do not impose conditions or limitations, apart from the fact that they confer the power on the Governor General or the lieutenant governor of a province, rather than the Queen. For instance, s 11 of the Constitution Act, 1867 gives the Governor General the power to appoint and remove members of the Queen’s Privy Council for Canada. Section 63 similarly gives the Lieutenant Governors of Ontario and Quebec the power to appoint and remove members of the Executive Councils of the provinces. Summoning is another prerogative power.^[106] Section 38 gives the Governor General the power to summon and call together the House of Commons.

The question whether these provisions impose conditions or limitations turns on their construction in light of the relationship between the Queen and her representatives in Canada. If that constitutional relationship implies that the Queen can exercise a power expressly conferred on the Governor General or a lieutenant governor, then there is no real condition or limitation. If, on the other hand, the Queen is barred from exercising such a power, then it would seem to impose a condition or limitation.

As I explained earlier, ss 9 and 15 continue and vest in the Queen the prerogatives associated with the “Executive Government and Authority of and over Canada” and “Command in Chief of the Land and Naval Militia, and of all Naval and Military Forces”. A provision that continues and vests Crown prerogatives in the Queen does not impose any conditions or limitations on those prerogatives, so would seem to leave them intact.

That said, the treatment of other institutions, notably the superior courts of the provinces, whose existence and essential features (referred to as their “core jurisdiction” or more misleadingly as their “inherent jurisdiction”) are protected by s 96 of the Constitution Act, 1867 in spite of its narrow wording, may give pause.^[107] If the Governor General’s power to appoint the judges of superior courts of the provinces would lose its meaning if those superior courts were deprived of their essential features,^[108] can it not be said that the Queen’s executive capacity contemplated by ss 9 and 15 would lose its meaning if certain core prerogatives were abolished?^[109]

At the very least, the possibility is worthy of further attention, particularly with reference to constitutions that contain similar provisions enacted against a like backdrop, notably Australia, but also the Irish Free State, the Union of South Africa and their successor states.^[110]

Relationship with Procedures for Constitutional Amendment

Developments in the law of constitutional amendment in Canada raise further questions on the extent to which Parliament and the provincial legislatures can abolish or limit (at least some) Crown prerogatives.^[111]

From the outset, the provincial legislatures’ jurisdiction to amend the constitution of the province did not extend to the “office of lieutenant governor”.^[112] The “office” of lieutenant governor embraced the lieutenant governor’s constitutional powers, such as the power to give (or refuse) royal assent.^[113] But there were also suggestions that the “office” might embrace certain prerogative powers.

In Ontario v OPSEU, Beetz J, writing for a majority of the Court, referred to the possibility that the “office” could include the “principle of responsible government”, which “depends on…important royal powers”, including “the power of the Lieutenant-Governor to dissolve the legislature [and]…[the] power to appoint and dismiss ministers”.^[114] Although the powers to dissolve the legislature and to appoint ministers are (arguably) constitutional powers in Ontario (and Quebec),^[115] they remain prerogative powers in several provinces.^[116] Yet Beetz J’s point does not seem to have been grounded in the fact that the power to dissolve the legislature and appoint ministers are (arguably) constitutional powers in Ontario and Quebec. Beetz J can thus be taken to suggest that at least some prerogative powers can form part of the office of lieutenant governor.

The Constitution Act, 1982 confirms that neither Parliament nor the provincial legislatures have the power to amend the “office of the Queen, the Governor General and the lieutenant governor of a province”.^[117] In Motard, the Quebec Court of Appeal held that the “office of the Queen” refers to the Queen’s “powers, status and constitutional role”.^[118] It follows that the office of Governor General and the office of lieutenant governor presumably include their powers, status and constitutional role. Although the Supreme Court denied leave in Motard, the holding that the “offices” of the Queen and her representatives in s 41(a) of the Constitution Act, 1982 refer to their powers, status and constitutional role is consistent with the Supreme Court’s approach to changes to other national institutions.

In the Reference re Supreme Court Act, ss 5 and 6, the Supreme Court opined that amendments to provisions of the Supreme Court Act require the use of the unanimity procedure if they concern the Court’s “composition” and the general amending procedure if they relate to the Court’s essential features.^[119] In the Reference re Senate Reform, the Supreme Court added that enacting a new law whose effect would be to gradually turn the Senate into an elective institution is tantamount to amending the “method of selecting Senators”, even if no changes were made to the provisions of the Constitution Act, 1867 concerning the Senate.^[120]

The implication from the Reference re Supreme Court Act, ss 5 and 6 and Reference re Senate Reform is that legal changes to the essential features of national institutions must made by constitutional amendment, usually under the general amending procedure, but sometimes under the unanimity procedure, as with the composition of the Supreme Court.^[121] This is so even if those essential features were originally set out not in a constitutional provision, but in another legal instrument, such as an Act of Parliament.^[122] Other changes to national institutions that do not affect their essential features can be made by Act of Parliament.^[123]

This understanding is consistent with another line of cases dealing with the limits on Parliament and the provincial legislatures’ power to alter the essential features of provincial superior courts. The powers of superior courts are a mix of statutory and common law powers, including, as I explain below, certain Crown prerogatives, but the case law makes clear that a constitutional amendment would be required to alter the essential features of superior courts or confer their historical exclusive jurisdiction on another court or body.^[124]

The limited case law concerning the offices of the Queen, Governor General and lieutenant governor confirms that the constitutional powers of the Queen and her representatives generally form part of the offices.^[125] But the powers of the Queen, the Governor General and the lieutenant governors are only partly set out in the Constitution. To the extent that a Crown prerogative is essential to the constitutional role performed by the Queen, the Governor General or a lieutenant governor, such as the power to dissolve a legislature (in those provinces where that power has not been constitutionalized), it likely can only be abolished or limited by constitutional amendment.^[126] Further work is needed on the distinctly Canadian question of what can fairly be considered to be essential to the offices of the Queen and her representatives.

V. Exercise of Crown prerogatives

In this section, I examine who can exercise the Crown’s prerogatives and what powers they can exercise.

Exercise by the Queen, the Governor General and the Lieutenant Governors

To the extent they have not been overtaken by statute or the Constitution, the Crown’s remaining prerogatives can be personally exercised by the Queen (with the notable exception of certain prerogatives related to justice). The Queen’s delegation of prerogatives to the Governor General and lieutenant governors does not prevent her from exercising them personally.^[127]

The Crown’s prerogatives can also be exercised by the Governor General and the lieutenant governors of the provinces (again, with the exception of certain prerogatives related to justice).^[128] The Governor General and lieutenant governor’s authority to exercise Crown prerogatives flows from their commissions as representatives of the Queen and is subject to her instructions.^[129] Although the office of Governor General is defined by letters patent, a given Governor General’s legal authority to exercise Crown prerogatives flows from their commission to occupy that office.^[130]

The Letters Patent Constituting the Office of Governor General and Commander-in-Chief delegate authorities in broad terms, “authoriz[ing] and empower[ing] [the] Governor General, with the advice of [the Queen’s] Privy Council for Canada or of any members thereof or individually, as the case requires, to exercise all powers and authorities lawfully belonging to [the Queen] in respect of Canada, and for greater certainty…to do an execute, in the manner aforesaid, all things that may belong to his office and to the trust [the Queen] ha[s] reposed in [the Governor General] according to the several powers and authorities granted or appointed [the Governor General] by virtue of The British North America Acts, 1867 to 1946 and the powers and authorities hereinafter conferred in these Letters Patent and in such Commission as may be issued to [them] under [the] Great Seal of Canada and under such laws as are or may hereinafter be in force in Canada”.^[131]

The delegation is of “all powers and authorities lawfully belonging [to the Queen] in respect of Canada”, whatever their source. Notably, this extends to the Queen’s common law authorities as they relate to the federal government, including, most importantly for present purposes, Crown prerogative.^[132] As the reference to “powers and authorities hereinafter conferred in these Letters Patent” indicates, the Letters Patent also specifically delegate authorities to the Governor General.

The Sovereign specifically authorizes the Governor General “to constitute and appoint in [the Queen’s] name and on [the Queen’s] behalf, all such Judges, Commissioners, Justices of the Peace and other necessary Officers (including diplomatic and consular officers) and Ministers of Canada, as may be lawfully constituted or appointed by [the Queen]”.^[133] This supplies the Governor General a residual authority to appoint officials, and to create (“constitute”) new public offices.^[134]

The Letters Patent also provide that the Governor General, “so far as [the Queen] lawfully may, upon sufficient cause to [them] appearing, to remove from…office, or to suspend from the exercise of [office], any person exercising any office within Canada, under or by virtue of any Commission or Warrant granted, or which may be granted, by [the Queen] in [their] name or under [their] authority”.^[135] This supplies the Governor General a residual authority to remove officials.

The Governor General has the authority “to exercise all powers lawfully belonging to [the Sovereign] in respect of summoning, proroguing or dissolving the Parliament of Canada”.^[136]

Under the Letters Patent, the Governor General has the authority “as he shall see occasion, in [the Queen’s] Name and on the [Queen’s] behalf, when any crime or offence against the laws of Canada has been committed for which the offender may be tried thereunder, to grant a pardon to any accomplice, in such crime or offence, who shall give such information as shall lead to the conviction of the principal offender, or of any one of such offenders if more than one”.^[137]

The Letters Patent also authorize the more familiar power “to grant to any offender convicted of any such crime or offence in any Court, or before any Judge, Justice or Magistrate, administering the laws of Canada, a pardon, either free, or subject to lawful conditions, or any respite of the execution of the sentence of any such offender, for such period as to [the] Governor General may seem fit, and to remit any fines, penalties, or forfeitures which may become due and payable to [the Crown]”.^[138]

Finally, the Governor General has the authority “to issue Exequaturs, in [the Queen’s] name and on [the Queen’s] behalf, to Consular Officers of foreign countries to whom Commissions of Appointment have been issued by the Heads of States of such countries”.^[139]

Compared to the Letters Patent, the lieutenant governors’ commissions and instructions are laconic.^[140] The lieutenant governor’s commission “authorize[s] and empower[s] and command[s]…[the lieutenant governor] in due manner to do and execute all things that shall belong to [the lieutenant governor’s] said command, and the trust…[the Queen] has reposed in [the lieutenant governor], according to the several powers, provisions and directions granted or appointed in [the lieutenant governor] by virtue of…[the Constitution Act, 1867], and of all other statutes in that behalf and of th[e]…present commission, according to such instructions as are herewith given to [the lieutenant governor] and hereunto annexed or which may from time to time be given to [the lieutenant governor], in respect of the said Province…under the sign manual of [the] Governor General of Canada, or by order of [the Queen’s] Privy Council for Canada and according to such laws as are or may be in force within the said Province…”.^[141] In contrast to the Letters Patent, the commission has not been updated in step with constitutional developments,^[142] but as I explain further below, its legal effect appears to be very similar to the Letters Patent, despite the lack of express language delegating authority to the lieutenant governor.

As a practical matter, the Queen continues to exercise a limited set of prerogatives, including the appointment and removal of a Governor General, the amendment of the Letters Patent constituting the office of Governor General and the creation of honours.^[143] The remaining prerogatives are exercised either by the Governor General or the lieutenant governor (or their lawful delegates).

Exercise on Advice

The Queen, the Governor General and the lieutenant governors are nearly always required to exercise the Crown’s prerogatives on advice.^[144] The requirement that the Queen exercise prerogatives on advice is founded in constitutional convention.

The requirement that the Governor General and lieutenant governors exercise prerogatives on advice is partly legal, but largely conventional.^[145] For instance, the Letters Patent Constituting the Office of Governor General require that the Governor General exercise the prerogative of mercy on advice of a member of the Queen’s Privy Council for Canada.^[146] Since the Letters Patent are the source of the Governor General’s legal authority to exercise the prerogative of mercy, advice is a legal condition that must be met before the Governor General can exercise that authority.

At the federal level, the body with the legal responsibility to advise the Queen and the Governor General is the Queen’s Privy Council for Canada.^[147] By convention, only its active members, who make up the Cabinet and are answerable to the House of Commons, advise the Crown.^[148] To use the example of the prerogative of mercy, it is a legal requirement that it be exercised on advice of a member of the Privy Council, but remains a conventional requirement that the advice come from the active members of Council.

At the provincial level, the body with the conventional responsibility to advise the Queen and the lieutenant governor is the executive council. In contrast to the Queen’s Privy Council for Canada, the membership of the executive council of a province and its cabinet are equivalent.

Exercise by Ministers of the Crown

To the extent that they are not reserved by constitutional convention to the Queen and her representatives, the Crown’s prerogatives can seemingly be exercised directly by ministers of the Crown.^[149] In Black, the Ontario Court of Appeal confirmed that the Prime Minister and other federal ministers could not only advise the Queen and the Governor General on the exercise of Crown prerogatives, but personally exercise them as well.^[150] These observations carry over to the provincial level. The Supreme Court seemed to be of the same view in Khadr when it accepted that the Prime Minister or the Minister of Foreign Affairs had made representations to the United States government in the exercise of the Crown prerogative over foreign affairs.^[151]

The Queen, the Governor General or the lieutenant governor can specifically authorize a particular minister to exercise a Crown prerogative. For instance, the Governor General regularly authorizes ministers to enter into international treaties on behalf of Canada.^[152] But in Black and Khadr, the courts seemed to accept that ministers could exercise (at least some) Crown prerogatives without specific authorization.^[153]

In Black, the Court of Appeal tied this to the Prime Minister and other ministers’ role as members of the Queen’s Privy Council for Canada.^[154] From a strictly legal perspective, this is not the most satisfying explanation, as the Privy Council’s role – even if one focuses only on its active members – is essentially advisory.^[155] From a conventional point of view, however, the exercise of Crown prerogatives by ministers can be understood to rest on a presumption that advice tendered to the Governor General on the exercise of the prerogative would be accepted in the normal course of things.^[156]

An alternative explanation is that ministers of the Crown are Crown agents and can thus act on behalf of the Queen’s representatives.^[157] In their capacity as agents appointed by commission under the Great Seal, they can personally exercise Crown prerogatives that could otherwise be exercised by the Queen, the Governor General or lieutenant governor. In Ross River, the Supreme Court accepted that the Crown’s prerogative to establish reserves could be exercised by an agent of the Crown.^[158] Similarly, in PS Knight, the Federal Court of Appeal explained that the Crown’s prerogative to print and publish statutes could be exercised by the government of a territory, presumably in its capacity as an agent of the Crown.^[159]

At the federal level, with the notable exception of the Prime Minister,^[160] ministerial responsibilities, and, consequently, the scope of their agency, are largely defined by statutes that provide that their “powers, duties and functions…extend to and include all matters over which Parliament has jurisdiction, not by law assigned to any other department, board or agency of the Government of Canada” relating to a given subject matter.^[161] The reference in these provisions to “matters over which Parliament has jurisdiction”, rather than existing enactments or laws, is sufficiently broad to encompass both statutory and non-statutory authorities, including Crown prerogatives.^[162]

For their part, attorneys general exercise certain Crown prerogatives related to justice.^[163] These prerogatives serve as the basis for prosecutorial powers.^[164] The attorneys general have the authority to “initiat[e], manag[e] and terminat[e]…private and public prosecutions”.^[165] The attorneys general do so on the Crown’s behalf by virtue of their “general role as official legal advisor to the Crown”.^[166] Here too the theory seems to be one of advice that would presumptively be accepted if it were formally tendered. In contrast to other Crown prerogatives, prosecutorial powers must be exercised independently from the rest of the executive.^[167]

Distribution of Crown Prerogatives

Having examined who can exercise Crown prerogatives generally, the remaining question is just which powers they can exercise and on what basis.

The modern understanding seems to be that the division of executive powers – an expression which includes at least the Crown prerogatives related to the Crown’s executive capacity^[168] – follows the division of legislative powers.^[169] In Alberta v Canadian Transport Commission, Laskin CJ, writing for a majority of the Court, explained that “[t]he Constitution of Canada distributes legislative power between a central Parliament and provincial Legislatures and prerogative or executive power (which is formally vested in the Queen) is similarly distributed to accord with the distribution of legislative power”.^[170]

On this view, a Crown prerogative that relates to a subject matter over which Parliament or a provincial legislature has exclusive jurisdiction can be exercised by the Queen or the Governor General on advice of federal ministers or by the Queen or lieutenant governor on advice of provincial ministers.^[171] For instance, Parliament’s exclusive authority to make laws in relation to defence implies that the Crown prerogatives related to defence and the armed forces can be exercised by the Governor General.^[172] Similarly, the provincial legislatures have jurisdiction over lands, so Crown prerogatives concerning lands and precious metals belong to the provincial order of government.^[173]

Despite the general rule, it is possible for a Crown prerogative to belong equally to the government of Canada and of the province.^[174] For instance, given Parliament and the provincial legislatures’ jurisdiction over public servants, it follows that the prerogative power to manage public servants belongs equally to the federal and provincial governments.^[175] Likewise, the similarities in the functioning of Parliament and the provincial legislatures mean the prerogative to print and publish statutes is equally that of the federal and provincial governments.^[176] The same would follow for prerogatives of summoning, prorogation and dissolution.

Changes to the division of powers can imply changes to the division of executive powers. When Parliament gained the power to legislate extraterritorially in the Statute of Westminster 1931, the implication was that the prerogatives related to extraterritorial action would belong to the government of Canada (though in practice the government of Canada had already begun to conduct foreign relations and the Balfour Declaration confirmed its capacity to do so).^[177]

The rule that the division of executive powers, including the Crown prerogatives, follows the division of legislative powers is reasonably clear. Its source less so.

In Liquidators of the Maritime Bank, Lord Watson explained that what is now known as the Constitution Act, 1867 “distribut[ed], between the Dominion and the provinces, all powers executive and legislative…which had previously belonged to the provinces; so that the Dominion Government should be vested with such of these powers…as were necessary for the due performance of its constitutional functions, and that the remainder should be retained by the provinces for the purposes of provincial government”.^[178] This formulation suggests that the Constitution Act, 1867 itself brought about the distribution of the Crown’s prerogatives. To put it in modern terms, the distribution of the Crown’s prerogatives would be necessarily implied by the structure of the Constitution.^[179]

In Bonanza Creek, Viscount Haldane initially seems to echo that point, noting that what is now the Constitution Act, 1867 “made a distribution between the Dominion and the provinces which extends not only to legislative but to executive authority”. But Viscount Haldane goes on to suggest that the Constitution Act, 1867 is a necessary, but not sufficient basis for this distribution of executive powers.

Bonanza Creek refers to three categories of executive power: (1) executive power under pre-1867 imperial and colonial statutes, the distribution of which follows the division of legislative powers by virtue of ss 12, 64 and 65 of what is now the Constitution Act, 1867,^[180] (2) executive power under express provisions of what is now the Constitution Act, 1867, which does not necessarily follow the division of powers and include “what would otherwise remain prerogative powers”,^[181] and (3) prerogative powers delegated by the Queen to the Governor General and lieutenant governors through their commissions.^[182]

Bonanza Creek expresses doubt about the view that “the Governor-General and the Lieutenant Governors of the provinces, excepting so far as the Royal prerogatives have been reserved expressly or by necessary implication, have the right to exercise them, as though by implication completely handed over and distributed in such a fashion as to cover the whole of the fields to which the self-government of Canada extends”, such that the Governor General and lieutenant governors would be “viceroys”, rather than “representatives of the Sovereign” whose authority is limited by their commissions.^[183]

Although he does not definitively reject it, Viscount Haldane suggests that arriving at such an interpretation would require express language providing for the exercise of prerogatives by the Governor General, as found in the Constitution of Australia.^[184] Viscount Haldane adds that, in any event, the view that the Governor General and lieutenant governors can exercise prerogatives apart from their commissions would appear inconsistent with provisions, such as ss 9, 14, 15 and 16 of the Constitution Act, 1867, which “appear to preserve prerogative rights of the Crown”.^[185] To state the obvious, constitutional text places an outer limit on the scope of any necessary implication.^[186]

In Viscount Haldane’s view, the delegation of Crown prerogatives is not implied by the Constitution Act, 1867 alone. The Governor General and lieutenant governors exercise Crown prerogatives solely by virtue of their commissions. The branch of what was originally colonial law dealing with the authority of colonial governors is now part of Canadian public law.^[187]

But all this leaves unanswered the central question of which Crown prerogatives the Governor General and the lieutenant governors can exercise (and who can advise on the exercise of those prerogatives). Viscount Haldane points to both the commissions as the Queen’s representatives and the Constitution Act, 1867.^[188] The Governor General’s commission is to hold an office established by letters patent whose function the Constitution Act, 1867 describes as “carrying on the Government of Canada on behalf of and in the Name of the Queen”.^[189] The lieutenant governor’s commission is to hold an office established by the Constitution Act, 1867, whose function the Constituion describes as “carrying on the Government of the Province”.^[190]

Once the Governor General and lieutenant governors have received their commissions, they presumptively have the power to exercise the Crown’s prerogatives in relation to the government of Canada and of their respective province.^[191] The Constitution, especially the division of powers, is the reference point for what relates to the government of Canada and of a province.^[192] The presumption is subject to the express terms of their commissions (which in the Governor General’s case, refer to the letters patent),^[193] the Constitution and statute.

The Constitution also serves as the outer limit of the authority that can be delegated by commission.^[194] The Queen cannot, on advice of her federal ministers, alter the letters patent constituting the office of Governor General (or a particular Governor General’s commission) so as to confer a prerogative on the Governor General that relates to an exclusively provincial subject matter.^[195] The same would follow for a provincial lieutenant governor and an exclusively federal subject matter.

Exercise by the Courts

I mentioned above that the Crown has, in addition to its executive and legislative capacities, a judicial capacity. In contrast to the Crown’s legislative capacity, which is wholly sourced in the Constitution, the Crown’s judicial capacity is largely preserved by the Constitution. More so than the Crown’s executive capacity, its source remains in the common law and statutes.

The Queen (and her representatives) cannot exercise judicial functions personally.^[196] Those functions are instead vested in judges appointed by the Crown. The relationship between the Crown and the courts is especially clear for the superior courts of the provinces, whose judges are appointed by the Governor General under s 96 of the Constitution Act, 1867. The superior courts have long been recognised as the descendants of the English royal courts of justice and described as the “Queen’s courts”.^[197]

Like ministers of the Crown, judges hold an office under the Crown.^[198] Just as the Governor General and lieutenant governor’s commissions empower them to exercise many of the Crown’s prerogatives, so too does a superior court judge’s commission empower them to exercise certain of the Crown’s prerogatives related to justice. For instance, where they have not been overtaken by statute,^[199] Crown prerogatives are the source of the superior court’s parens patriae jurisdiction and its power to issue the prerogative writs, such as certiorari, habeas corpus and prohibition.^[200]

To the extent that the exercise of these prerogatives formed part of the exclusive jurisdiction of the superior courts in New Brunswick, Nova Scotia and the Province of Canada in 1867, they may benefit from constitutional protection flowing from s 96.^[201] They may also form part of the essential features or “core jurisdiction” of superior courts, which cannot be removed, absent a constitutional amendment.^[202] These constitutional protections limit the power of Parliament and the provincial legislatures to modify or abolish these prerogatives as they are exercised by judges of the superior courts.^[203]

Once appointed to judicial office, the judges of superior courts enjoy the express protections of ss 99 and 100 of the Constitution Act, 1867, which guarantee the tenure and salary of superior court judges.^[204] To these, one can add the implied protections flowing from the constitutional principle of judicial independence.^[205] Together, these protections provide a great measure of insultation for the judges of the superior courts against interference by the Crown in its other capacities.

VI. Conclusion

In this article, I aimed to provide an overview of the (1) the reception of Crown prerogatives into Canadian law and their continuation to the present, (2) the relationship between Crown prerogatives and entrenched constitutional provisions whose subject matter overlaps with them and (3) the distribution of Crown prerogatives between the federal and provincial orders of government (and further distribution within those orders). Together, these three issues point to the need for more distinctive Canadian scholarship on Crown prerogatives and their relationship with Canada’s constitutional settlement and greater engagement with debates in other countries, particularly Australia, where similar issues arise and where case law and scholarship wrestling with them may be more developed.

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1. See Alexander Bolt & Philippe Lagassé, “Beyond Dicey: Executive Authorities in Canada” (2021) 3 J Commwth L 1. See also R (Miller) v Secretary of State for Exiting the European Union (Miller I) [2017] UKSC 5, [2018] AC 61 [49], [54].

2. See The Queen v Bank of Nova Scotia (1885), 11 SCR 1 at 18; Liquidators of the Maritime Bank v The Queen (1888) 17 SCR 657, 661; PS Knight Co Ltd v Canadian Standards Association 2018 FCA 222 [121].

3. In Canada, see Ross River Dena Council Band v Canada, 2002 SCC 54, [2002] 2 SCR 816 [54]. In the United Kingdom, see Miller I (n 1) [48].

4. In Canada, see Black v Canada (Prime Minister) (2001) 54 OR (3d) 215 [26]; PS Knight (n 2) [126]. In the United Kingdom, see R (Miller) v Prime Minister (Miller II) [2019] UKSC 41, [2020] AC 373 [35].

5. In Canada, see Black (n 4) [46]; Copello v Canada (Minister of Foreign Affairs) 2003 FCA 295 [16]-[18]; Hupacasath First Nation v Canada (Foreign Affairs and International Development) 2015 FCA 4 [66]; Canada (Prime Minister) v Khadr 2010 SCC 3, [2010] 1 SCR 44. See also Jennifer Klinck, “Modernizing Judicial Review of the Exercise of Prerogative Powers in Canada” (2017) 54 Alberta L Rev 997. In the United Kingdom, see Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL); R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61, [2009] 1 AC 453 [35]; Miller II (n 4) [35].

6. See Ross River (n 3); Keatley Surveying Ltd v Teranet Inc, 2019 SCC 43, 437 DLR (4th) 567.

7. Jackson v Her Majesty’s Attorney General [2005] UKHL 56, [2006] 1 AC 262 [9] (Bingham LJ). But see nuances made in AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46, [2012] 1 AC 868 [50]-[51] (Hope LJ); R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, [2014], 1 WLR 324 [207].

8. Constitution Act, 1982, s 52(1); Reference re Pan-Canadian Securities Regulation 2018 SCC 48, [2018] 3 SCR 189 [56]-[57].

9. Galati v Canada (Governor General) 2015 FC 91, [2015] 4 FCR 3 [47]; PS Knight (n 2) [122].

10. See Black (n 4) [29]; Ross River (n 3) [64]-[66]. In the statutory context, see Alissa Malkin, “Government Reorganization and the Transfer of Powers: Does Certainty Matter?” (2008) 39 Ottawa L Rev 537, 564-569.

11. For a few recent examples, see Robert French, “Executive Power in Australia: Nurtured and Bound in Anxiety” (2018) 43 U West Austl L Rev 16; Peter Gerangelos, “Section 61 of the Commonwealth Constitution and an ‘Historical Constitutional Approach’: An Excursus on Justice Gageler’s Reasoning in the M68 Case” (2018) 43 U West Austl L Rev 103; Catherine Dale Greentree, “The Commonwealth Executive Power” (2020) 43 UNSW LJ 893; Anne Twomey, “The Prerogative and the Courts in Australia” (2021) 3 J Commwlth Law 55.

12. See eg Colin HN McNairn, Governmental and Intergovernmental Immunity in Australia and Canada (Toronto 1977); Peter W Hogg, Patrick Monahan & Wade K Wright, Liability of the Crown, 4th ed (Carswell 2011).

13. Clyde River (Hamlet) v Petroleum Geo-Services Inc 2017 SCC 40, [2017] 1 SCR 1069 [28], quoting Town Investments Ltd v Department of the Environment [1978] AC 359 (HL) 397 (Simon LJ); McAteer v Canada (Attorney General), 2014 ONCA 578 [51]-[52].

14. Quebec (Attorney General) v Labrecque [1980] 2 SCR 1057, 1082; Clyde River (n 13) [28]; Mikisew Cree First Nation v Canada (Governor General in Council) 2018 SCC 40, [2018] 2 SCR 765 [23], [44] (Karakatsanis J) (referring to the “Crown qua sovereign”), [128] (Brown J). See Constitution Act, 1867, preamble; Statute of Westminster, 1931, preamble.

15. See R v Secretary of State for Foreign and Commonwealth Affairs [1982] 1 QB 892 (CA), cited with approval by Mitchell v Peguis First Nation [1990] 2 SCR 85, 101 (Dickson CJ, concurring).

16. Liquidators of the Maritime Bank of Canada v New Brunswick (Receiver General [1892] AC 437 (PC) 441; Re Silver Brothers Ltd [1932] AC 514 (PC) 524; Mitchell v Peguis First Nation [1990] 2 SCR 85, 101 (per Dickson CJ, concurring). See e.g. Manitoba Act, 1870, s 30; Alberta Act, s 21; Saskatchewan Act, s 21. See also Sue v Hill (1999) 199 CLR 462 (HCA) 501.

17. Constitution Act, 1867, ss 9, 17; Mikisew (n 14) [128]-[133] (Brown J).

18. Mikisew (n 14) [129]-[132] (Brown J).

19. R v Clark, ex rel Tolfree (1943) 3 DLR 684 (ONCA).

20. See Mikisew (n 14) [128] (Brown J). See also Jaundoo v Guyana (Attorney General) [1971] AC 972 (PC) 984-985; Canada v Prince Edward Island [1978] 1 FC 533 (CA) [547]-[548] (Jackett CJ).

21. Constitution Act, 1867, s 96. See also R v Thomas Fuller Construction Co (1958) Ltd [1980] 1 SCR 695, 713; Canada (Attorney General) v Law Society of British Columbia [1982] 2 SCR 307, 326-327; Windsor (City) v Canadian Transit Co, 2016 SCC 54, [2016] 2 SCR 617 [32]; Reference re Code of Civil Procedure (Que), art 35, 2021 SCC 27 [29], [31], [35]-[36], [38], [43]-[45].

22. Reference re Supreme Court Act, ss 5 and 6, 2014 SCC 21, [2014] 1 SCR 433 [83]-[84], citing R v Gardiner [1982] 2 SCR 638 [404] and Hunt v T & N plc [1993] 4 SCR 289, 318.

23. See Attorney General v Times Newspapers Ltd [1974] AC 273 (HL) 311 (Lord Diplock); Nova Scotia Presiding Justices of the Peace Association v Nova Scotia (Attorney General) 2013 NSSC 40 [24]. See also Privy Council Office, Responsibility in the Constitution (Minister of Supply and Services Canada 1993) 11.

24. Labrecque (n 14) 1082; Clyde River (n 13) [28].

25. Compare reasons of Crighton JA and Slatter JA in Anglin v Resler 2020 ABCA 184.

26. Ontario v Criminal Lawyers’ Association of Ontario 2013 SCC 43, [2013] 3 SCR 3 [27]-[31]; Mikisew (n 14) [128] (Brown J); British Columbia (Attorney General) v Provincial Court Judges’ Association of British Columbia 2020 SCC 20 [65].

27. Krieger v Law Society of Alberta 2002 SCC 65, [2002] 3 SCR 372 [29]-[30], [32]; Ontario (Attorney General) v G 2020 SCC 38 [97].

28. See Klinck (n 5) 1002-1010; Bolt & Lagassé (n 1).

29. William Blackstone, Commentaries on the Laws of England, vol 1 (OUP 2016) 155.

30. AV Dicey, The Law of the Constitution (JWF Allison, ed, OUP 2013) 188.

31. Compare Reference as to the effect of the Exercise by His Excellency the Governor General of the Royal Prerogative of Mercy upon Deportation Proceedings [1933] SCR 269 [272]-[273] and Khadr (n 5) [34] with Verreault (JE) & Fils Ltée v Canada (Attorney General) [1977] 1 SCR 41, 47-49 and Labrecque (n 14) 1082-1083.

32. See Reference re Anti-Inflation Act, [1976] 2 SCR 373, 433-435; Verreault (n 31) 47-49; Labrecque (n 14) 1082-1083; Ontario (Attorney General) v Fatehi [1984] 2 SCR 536, 551-552; Wells v Newfoundland [1999] 3 SCR 199 [20]-[31]; Dunsmuir v New Brunswick 2008 SCC 9, [2008] 1 SCR 190 [95]-[97]. See also Pharmaceutical Manufacturers’ Association of Canada v British Columbia (1997) 149 DLR (4th) 613, 38 BCLR (3d) 175 (CA) [27]; R v Secretary of State for Work and Pensions, ex parte Hooper [2005] UKHL 29, [2005] 1 WLR 1681 [46]; R (New London College) v Secretary of State for the Home Department [2013] UKSC 51, [2013] 1 WLR 2358 [28].

33. See Canada (Attorney General) v Thouin 2017 SCC 46, [2017] 2 SCR 184 [16]-[17].

34. Roncarelli v Duplessis [1959] SCR 121, 141-142; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of the Provincial Court of Prince Edward Island [1997] 3 SCR 3 [10]; Reference re Secession of Quebec, [1998] 2 SCR 217 [71]; British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49, [2005] 2 SCR 473 [59]; Dunsmuir (n 32) [28].

35. Mikisew (n 14) [110] (Brown J).

36. Reference re Resolution to amend the Constitution [1981] 1 SCR 753, 880; Reference re Objection by Quebec to a Resolution to amend the Constitution, [1982] 2 SCR 793, 803.

37. Black (n 4) [31]; Galati (n 9) [46].

38. Reference re Resolution to amend the Constitution (n 36) 880-883; Quebec Secession Reference (n 34) [98]; BC v Provincial Court Judges (n 26) [67].

39. See Babcock v Canada (Attorney General) 2002 SCC 57, [2002] 3 SCR 3 [18]-[19]; Reference re Senate Reform, 2014 SCC 32 [50]-[51], 62; BC v Provincial Court Judges (n 26) [67], [96]-[98].

40. Hupacasath First Nation v Canada (Foreign Affairs and International Trade Canada) 2015 FCA 4 [32]; Sebastian Payne, “The Royal Prerogative” in Maurice Sunkin & Sebastian Payne, eds, The Nature of the Crown: A Legal and Political Analysis (OUP 1999) 106-107.

41. Peter Cane, Controlling Administrative Power: A Historical Comparison (Cambridge 2016) 25-27.

42. Canadian Broadcasting Corporation v Ontario (Attorney General) [1959] SCR 188, 196 (Rand J); R v Eldorado Nuclear Ltd; R v Uranium Canada Ltd [1983] 2 SCR 551, 563-564. William Wade, “Crown, Ministers and Officials: Legal Status and Liability” in Maurice Sunkin & Sebastian Payne, eds, The Nature of the Crown: A Legal and Political Analysis (OUP 1999) 24-25.

43. Case of Prohibitions (1607) 12 Co Rep 63, 77 ER 1342; Case of Proclamations (1610), 12 Co Rep 74, 77 ER 1352; Miller I (n 1) [41].

44. Miller II (n 4) [35].

45. Miller II (n 4) [30].

46. Miller I (n 1) [50]-[51]; Miller II (n 4) [38], [40].

47. Miller I (n 1) [41], [43].

48. Geoffrey Marshall, Constitutional Conventions (OUP 1986) 21-23; Vernon Bogdanor, The Monarchy and the Constitution (OUP 1995) 129-132.

49. Miller I (n 1) [45]; Miller II (n 4) [30], [46].

50. The Bill of Rights 1689 and Act of Settlement 1701 have been held not to be part of the Constitution of Canada, though some of the principles they establish are: R v Montague 2010 ONCA 141 [15]; Motard v Canada (Attorney General) 2019 QCCA 1826 [55]-[66], citing New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly) [1993] 1 SCR 319, 353 (Lamer CJ) 374 (McLachlin J).

51. PS Knight (n 2) [115]. See also Noel Cox, The Royal Prerogative and Constitutional Law: A Search for the Quintessence of Executive Power (Routledge 2021) 106-107.

52. The Queen v Bank of Nova Scotia (n 2) 18; Liquidators of the Maritime Bank (n 2) 661; PS Knight (n 2) [121].

53. Reference re Resolution to amend the Constitution (n 36) 790; Campbell v Hall (1774) 1 Cowp 204, 98 ER 1045 (KB); Colonial Laws Validity Act 1865 (UK), 28 & 29 Vict, c 63, s 2.

54. Bonanza Creek Gold Mining Co v The King [1916] 1 AC 566, 581. See also Union Act, 1840 (UK), 3 & 4 Vict, c 35, s 42 (requiring that assent be given by Queen to bills that “shall in any Manner relate to or affect Her Majesty’s Prerogative touching the granting of Waste Lands within the said Province”, implying that it would not have been beyond the powers of the legislature to do so).

55. See Union Act, 1840 (UK), 3 & 4 Vict, c 35, ss 37-39.

56. Union Act, 1840 (UK), 3 & 4 Vict, c 35, s 3.

57. Campbell v Hall (n 53); Colonial Laws Validity Act 1865 (UK), 28 & 29 Vict, c 63, s 3; R (Bancoult) (n 5) [36]. See generally Enid Campbell, “Colonial Legislation and the Laws of England” (1965) 2 U Tasmania L Rev 148.

58. See James WJ Bowden, “Canada’s Legal-Constitutional Continuity, 1791-1867” (2020) 14 J Parl & Politcal Law 581.

59. Constitution Act, 1867, s 129 (emphasis added). The parenthetical proviso “(except with respect to such as are enacted by or exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland)” was never repealed, but it can be fairly considered to be spent because the Statute of Westminster, 1931 provides that “the powers of the Parliament of a Dominion shall include the power to repeal or amend any…Act [of the Parliament of the United Kingdom], order, rule or regulation in so far as the same is part of the law of the Dominion” and extends that power to the provincial legislatures: Statute of Westminster, 1931, ss 2(2), 7(2), (3).

60. Peter W Hogg, Constitutional Law of Canada (Carswell 2014) 2-11–2-12.

61. McAteer (n 13) [51]; PS Knight (n 2) [115]-[116].

62. Proulx v Quebec (Attorney General) 2001 SCC 66, [2001] 3 SCR 9 [87]-[89] (L’Heureux-Dubé J, dissenting, but not on this point); PS Knight (n 2) [116].

63. PS Knight (n 2) [122].

64. See R v British Coal Corporation [1935] AC 500, 519-520; PS Knight (n 2) [122]. This was originally subject to the possibility of disallowance or reservation, which is now almost certainly foreclosed by convention: Constitution Act, 1867, ss 55-57, 90; Reference re the Power of the Governor General to Disallow Provincial Legislation and the Power of Reservation of a Lieutenant Governor of a Province [1938] SCR 71; Reference re Manitoba Language Rights [1985] 1 SCR 721, 753-754; Ontario Hydro v Ontario (Labour Relations Board) [1993] 3 SCR 327, 371-372.

65. Colonial Laws Validity Act 1865, s 3, made no longer applicable to Canada by Statute of Westminster 1931, ss 1-2(1); Statute of Westminster 1931, ss 2(2), 7(3).

66. Statute of Westminster 1931, ss 1, 3; R v British Coal Corporation (n 64) 516.

67. PS Knight (n 2) [117]-[118].

68. Reference re Resolution to amend the Constitution (n 36) 876-877, citing Reference as to the Effect of the Exercise of the Royal Prerogative of Mercy upon Deportation Proceedings [1933] SCR 269 and Bonanza Creek (n 54). See also Irvin Studin, The Strategic Constitution: Understanding Canadian Power in the World (UBC 2014) 17.

69. Bonanza Creek (n 54) 587; Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada 2020 FCA 100 [79], leave to appeal to SCC granted 39418 (April 22, 2021).

70. McAteer (n 13) [51]; Angus v Canada [1990] 3 FC 410 (CA) 423-424; Galati (n 9) [41]; Roach v Canada (Attorney General) 2009 CanLII 7178 (ONSC) [11].

71. Reference re Representation of Certain Provinces in the House of Commons (1903) 33 SCR 475, 585-586 (Mills J).

72. Reference re Resolution to amend the Constitution (n 36) 805-806.

73. Eldorado Nuclear (n 42) 556-558; Alberta Government Telephones v Canada (Canadian Radio-Television and Telecommunications Commission) [1989] 2 SCR 225, 281; Friends of the Oldman River Society v Canada (Minister of Transport) [1992] 1 SCR 3, 50; Ross River (n 3) [54]; Thouin (n 33) [20]-[21].

74. Ross River (n 3) [54]; Interpretation Act, RSC 1985, c I-21, s 17. See also Canada (Attorney General) v British Columbia Investment Management Corp 2019 SCC 63 [48].

75. Ross River (n 3) [58]-[61]; PS Knight (n 2) [134]-[135].

76. Ross River (n 3) [54], quoting Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508 (HL) 526; Miller I (n 1) [48].

77. Black (n 4) [47]. See also R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] AC 513 (HL) 552-553; Miller I (n 1) [112]; R Miller II (n 4) [27].

78. See Ross River (n 3) 816 [4]-[5] (Bastarache J, dissenting); Craig Forcese, “The Executive, the Royal Prerogative and the Constitution” in Peter Oliver, Patrick Macklem & Nathalie Des Rosiers, eds, The Oxford Handbook of the Canadian Constitution (OUP 2017) 157-158.

79. Canada (Prime Minister) v Khadr 2010 SCC 3, [2010] 1 SCR 44 [35]; Department of Foreign Affairs and International Trade Act, RSC 1985, c E-22, s 10, repealed by the Economic Action Pan 2013 Act, No 1, SC 2013, c 33, s 199.

80. Constitution Act, 1982, s 52(2) & Schedule. See also Constitution Act, 1867, s 146 (giving orders admitting British Columbia, Prince Edward Island and Rupert’s Land and the North-Western Territory the status of Acts of the imperial Parliament).

81. Constitution Act, 1867, s 146; British Columbia (Attorney General) v Canada (Attorney General); An Act Respecting the Vancouver Island Railway (Re) [1994] 2 SCR 41, 97-98. See also Paul Gérin-Lajoie, Constitutional Amendment in Canada (Toronto 1950) 122-123.

82. Constitution Act, 1871, s 2; Reference re s 17 of the Alberta Act [1927] SCR 364, 373-374; Saskatchewan (Attorney General) v Canadian Pacific Railway [1953] AC 594 (PC) 615 (Viscount Simon); Manitoba (Attorney General) v Canadian Pacific Railway [1958] SCR 744, 754.

83. Constitution Act, 1982, ss 52(1), (2)(a), (b), 53(1) & Schedule; Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd, [1986] 2 SCR 573 at para 25.

84. Constitution Act, 1982, s 52(1), (2)(c), (3).

85. As B. Thomas Hall pointed out, it seems unlikely that the federal Interpretation Act (and by extension, the provincial interpretation acts) apply to the Constitution: B Thomas Hall, “Section 2 of the British North America Act, 1867: Is It Part of the Constitution of Canada?” (2019) 12 J Parl & Political Law 779, 780. The contrary argument could be made that at least those portions of the Constitution that were enacted by Parliament are subject to the Interpretation Act: see, somewhat analogously, Alberta v Canada 2018 FCA 83 [36].

86. Lenoir v Ritchie (1879) 3 SCR 575, 633-636. As Beetz J noted in Ontario (Attorney General) v OPSEU [1987] 2 SCR 2, Lenoir was implicitly overruled by Canada (Attorney General) v Ontario (Attorney General) [1898] AC 247 (PC), but not on this point.

87. The Queen v Bank of Nova Scotia (n 2) 18-19.

88. Maritime Bank of Canada (n 16) 441.

89. Bonanza Creek (n 54) 587.

90. Canada (Attorney General) v Higbie [1945] SCR 385, 407-408.

91. Bonanza Creek (n 54) 586.

92. Hunter v Southam [1984] 2 SCR 145, 155.

93. See R v Comeau 2018 SCC 15, [2018] 1 SCR 342 [23]-[26].

94. Reference re Resolution to amend the Constitution (n 36) 805-806.

95. Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown and the Relative Duties and Rights of the Subject (Butterwort, 1820) 80-83.

96. The opening words “until Parliament otherwise provides” indicate that s 131 confers a power liable to become spent. R v Comeau (n 93) [74]-[76].

97. Canadian Passport Order, SI/81-86; Entertainment Software Association (n 69).

98. Constitution Act, 1867, s 17.

99. Reference re Referendum and Initiative Act [1919] AC 935; The King v Caroll [1948] SCR 126.

100. Constitution Act, 1982, ss 38-43, 47-48, 54-55, 59.

101. Chitty (n 95) 74.

102. Galati v Canada (Governor General) 2015 FC 91, [2015] 4 FCR 3 [56]; PS Knight (n 2) [122].

103. Chitty (n 95) 72.

104. See James WJ Bowden, “When the Bell Tolls for Parliament: Dissolution by Efflux of Time” (2017) 11 J Parl & Political Law 129.

105. See Conacher v Canada (Prime Minister) 2009 FC 920, [2010] 3 FCR 411 [53], aff’d 2010 FCA 131, [2011] 4 FCR 22.

106. Chitty (n 95) 68.

107. See Provincial Court Judges Reference (n 34) [88]; Trial Lawyers Association of British Columbia v British Columbia (Attorney General) 2014 SCC 59, [2014] 3 SCR 31 [29]; Windsor (City) (n 21) [32]; Reference re Code of Civil Procedure (n 21) [41], [63]-[69].

108. McEvoy v New Brunswick [1983] 1 SCR 704, 719.

109. See Philippe Lagassé, “The Crown’s Powers of Command-in-Chief: Interpreting Section 15 of the Constitution Act, 1867” (2013) 18 Rev Const Studies 189.

110. Commonwealth of Australia Constitution Act, ss 61, 68; South Africa Act 1909 (UK), c 9, ss 8, 17; Constitution of the Irish Free State (Saorstát Éireann) Act, 1922, art 51.

111. See Julien Fournier and Amélie Binette, “La Couronne: vecteur du fédéralisme canadien” (2017) 58 Cahiers de droit 625, 636, n 52; Philippe Lagassé & Patrick Baud, “The Crown and Constitutional Amendment” in Emmett Macfarlane, ed, Constitutional Amendment in Canada (Toronto 2016) 248; Klinck (n 5) 998.

112. British North America Act, 1867, s 92(1), repealed by Constitution Act, 1982, s 53(1) & Schedule, Item 1 and replaced by Constitution Act, 1982, s 45.

113. Reference re Referendum and Initiative Act [1919] AC 935 (PC) 943-944; R (ex rel Tolfree) (n 19) 689 (Henderson JA). See also Manitoba Language Reference (n 64) 777.

114. OPSEU (n 86) [108].

115. Constitution Act, 1867, ss 63, 85.

116. See Askin v Law Society of British Columbia 2013 BCCA 233 (power to appoint ministers in British Columbia); Engel v Prentice 2020 ABCA 462 (power to dissolve the Legislative Assembly of Alberta).

117. Constitution Act, 1982, s 41(a). On the logic of the Reference re Authority of Parliament in relation to the Upper House, [1980] 1 SCR 54, Parliament almost certainly did not have the authority to make laws in relation to the office of the Queen, the Governor General and lieutenant governor of a province under the British North America Act, 1867, s 91(1), as enacted by the British North America Act, 1949 (No 2) and as repealed by Constitution Act, 1982, s 53(1) & Schedule.

118. Motard (n 50) [91]-[92].

119. Supreme Court Reference (n 22) [74], [90]-[91], [94].

120. Senate Reform Reference (n 39) [64]-[67].

121. Senate Reform Reference (n 39) [77]-[78].

122. Reference re Supreme Court Act, ss 5 and 6, 2014 SCC 21, [2014] 1 SCR 433 at para 94; Senate Reform Reference (n 39) [48]. See Adam Dodek, “Uncovering the Wall Surrounding the Castle of the Constitution: Judicial Interpretation of Part V of the Constitution Act, 1982” in Emmett Macfarlane, ed, Constitutional Amendment in Canada (Toronto: University of Toronto Press, 2016) 42 at 48-49.

123. Constitution Act, 1867, ss 91, 101; Constitution Act, 1982, s 44; Jones v New Brunswick (Attorney General) [1975] 2 SCR 182, 189; Oldman River Society (n 73) 74-75; Supreme Court Reference (n 22) [101]; Senate Reform Reference (n 39) [47]-[48], [75], [87], [90], [91].

124. See MacMillan Bloedel Ltd v Simpson [1995] 4 SCR 725 [37].

125. Manitoba Language Reference (n 64) 777 (lieutenant governor’s power of assent); Conacher (n 109) [53]. But see Renvoi relatif au projet de loi fédéral relatif au Sénat 2013 QCCA 1807 [61] (Governor General’s power to appoint members of the Senate).

126. See Dodek (n 122) 52-53; Lagassé & Baud (n 111) 248.

127. Canada v Ontario (n 86) 468. See also Christopher McCreery, “Myth and Misunderstanding: The Origins and Meaning of the Letters Patent Constituting the Office of the Governor General, 1947” in Jennifer Smith & D Michael Jackson, eds, The Evolving Canadian Crown (McGill-Queen’s 2011) 43.

128. Windsor & Annapolis Railway Co v The Queen (1888) 10 SCR 335, 388-389 (Strong J, dissenting); Higbie (n 90) 408 (Rinfret J); The King v Carrol, [1950] SCR 73, 79; Quebec (Attorney General) v Blaikie [1981] 1 SCR 312, 319; Ross River (n 3) [63]; Hinse v Canada (Attorney General) 2015 SCC 35, [2015] 2 SCR 621 [28]. See also Canada (Attorney General) v Cain [1906] AC 542 (PC) 545-546.

129. Canada v Ontario (n 86) 468; Bonanza Creek (n 54) 580-581, 585-587.

130. See Letters Patent Constituting the Office of Governor General and Commander-in-Chief of Canada; Proclamation Announcing the Appointment of the Governor General, SI/2021-41 (Queen “in and by…[the Governor General’s] Commission, authorized, empowered and commanded [the Governor General] to exercise and perform all and singular powers and directions contained in the Letters Patent”). The distinction is somewhat elided in Ross River and Hinse.

131. Letters Patent Constituting the Office of Governor General and Commander-in-Chief of Canada, art II. In my quotations of the Letters Patent, I have replaced possessives referring to the Queen, i.e. the use of “We”, “Our”, etc., to refer to the offices in question. I have done so with the objective of making it easier to compare the Letters Patent to the relevant constitutional provisions.

132. Ross River (n 3) [63]. See also Alison Quentin-Baxter & Janet McLean, This Realm of New Zealand: The Sovereign, the Governor-General and the Crown (Auckland University Press 2017) 147-151.

133. Letters Patent Constituting the Office of Governor General and Commander-in-Chief of Canada, art IV.

134. Quentin-Baxter (n 132) 151-153.

135. Letters Patent (n 133 art IV.

136. Ibid art VI.

137. Ibid art XII.

138. Ibid.

139. Ibid art XIII. An exequatur, in the diplomatic context, is the “official recognition of a consul or commercial agent by the government of the country to which he is accredited, authorizing him to exercise his power”: Oxford English Dictionary, 2nd ed, sub nom exequatur.

140. Christopher McCreery, “The Provincial Crown: The Lieutenant Governor’s Expanding Role” in D Michael Jackson & Philippe Lagassé, eds, Canada and the Crown: Essays on Constitutional Monarchy (McGill-Queen’s 2014) 144.

141. Reproduced in John T Saywell, The Office of Lieutenant-Governor: A Study of Canadian Government and Politics (Toronto 1957) Appendix C.

142. McCreery, “The Provincial Crown” (n 140) 144.

143. McCreery, “Myth and Misunderstanding” (n 127) 52.

144. Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics (2nd edn, OUP 2014) 39.

145. See Mark D Walters, “Judicial Review of Ministerial Advice to the Crown” (2016) 25 Constitutional Forum 33, 37.

146. Letters Patent Constituting the Office of Governor General, art XII.

147. Constitution Act, 1867, s 11. See Walters (n 145) 37.

148. Ross River (n 3) [63].

149. Anne Twomey, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (Cambridge 2018) 6-7.

150. Black (n 4) [33]. See also Schreiber v Canada (Attorney General) [2000] 1 FC 427 [27]-[28]; Khadr v Canada (Attorney General), 2006 FC 727, [2007] 2 FCR 218 [95].

151. Khadr (n 5).

152. Hupacasath (n 40) [32]-[33], [55], [57].

153. Black (n 4) [32]. See also Khadr v Canada, 2006 FC 727, [2007] 2 FCR 218 [42].

154. Black (n 4) [32].

155. See Constitution Act, 1867, ss 11-13, 58, 67.

156. Alexander J Braden, “Decision Instruments of the Federal Cabinet: Legally Exercising the ‘War’ Prerogative” (2021) 3 J Commwlth Law 157, 182-189.

157. See Letters Patent Constituting the Office of Governor-General of New Zealand, SR 1983/225, art 3 (“authoriz[ing] and empower[ing] [the] Governor-General, except as may be otherwise provided by law, – (a) to exercise on Our behalf the executive authority of Our Realm of New Zealand, either directly or through officers subordinate to Our Governor-General…)” (emphasis added).

158. Ross River (n 3) [6] (Bastarache J, concurring), [64]-[66] (LeBel J).

159. PS Knight (n 2) [133]. See Northwest Territories v Public Service Alliance of Canada (1999) 183 DLR (4th) 175 (FC) [31]-[33], rev’d 2001 FCA 162, [2001] 3 FC 566; Nunavut Tunngavik Incorporated v Canada (Attorney General) 2008 NUCJ 11 [84], aff’d 2009 NUCA 2.

160. See Black (n 4) [33] (noting that the Prime Minister’s powers are “not enumerated in any statute”).

161. See Department of Agriculture and Agri-Food Act, RSC 1985, c A-9, s 4; Department of Citizenship and Immigration, SC 1994, c 31, s 4; Department of Crown-Indigenous Relations and Northern Affairs Act, ss 6-7, 13, enacted by Budget Implementation Act, 2019, No 1, SC 2019, c 29, s 337; Department of Canadian Heritage Act, SC 1995, c 11, 4; Department of Employment and Social Development Act, SC 2005, c 34, s 5; Department of Environment Act, RSC 1985, c E-10, s 4; Department of Foreign Affairs, Trade and Development Act, s 10, enacted by Economic Action Plan 2013 Act, No 1, SC 2013, c 33, s 174; Department of Health Act, SC 1996, c 8, s 4; Department of Indigenous Services Act, s 6, enacted by Budget Implementation Act, 2019, No 1, SC 2019, c 29, s 336; Department of Industry Act, SC 1995, c 1, s 4; Department of Justice Act, RSC 1985, c J-2, ss 4, 5; Department of Natural Resources Act, SC 1994, c 41, ss 5-6; Department of Public Safety and Emergency Preparedness, SC 2005, c 10, s 4; Department of Public Works and Government Services Act, SC 1996, c 16, ss 6-7; Department of Transport, RSC 1985, c T-18, s 7; Department of Veterans Affairs Act, RSC 1985, c V-1, s 4; Department for Women and Gender Equality Act, s 4, enacted by Budget Implementation Act, 2018, No 2, SC 2018, c 27, s 661. See also Financial Administration Act, RSC 1985, c F-11, s 15 (wording for Minister of Finance is slightly different). But see National Defence Act, RSC 1985, c N-5, s 4.

162. See, by analogy, Operation Dismantle v The Queen, [1985] 1 SCR 441 [28] (Dickson CJ), [50] (Wilson J); Black (n 4) [46]; Veffer v Canada (Minister of Foreign Affairs) 2007 FCA 247, [2008] 1 FCR 641 at [23].

163. See e.g. Department of Justice Act, RSC 1985, c J-2, s 5; Director of Public Prosecutions Act, s 3(3), (4), enacted by Federal Accountability Act, SC 2006, c 9, s 121.

164. R v Power [1994] 1 SCR 601, 621-623 (L’Heureux-Dubé J); Krieger v Law Society (n 27) [24], [43]; R v Anderson, 2014 SCC 41, [2014] 2 SCR 167 [44]-[45].

165. Krieger v Law Society (n 27) [25].

166. Ibid.

167. Ibid [29]-[30], [32]; R v Beaudry 2007 SCC 5 5, [2007] 1 SCR 190 [48]; Miazga v Kvello Estate 2009 SCC 51, [2009] 3 SCR 339 [46]; R v Nixon 2011 SCC 34, [2011] 2 SCR 566 [20]; R v Cawthorne 2016 SCC 32, [2016] 1 SCR 983 [23]-[27]; Ontario (Attorney General) v Clark 2021 SCC 18 [28]-[33].

168. See Higbie (n 90) 410 (Rinfret CJ); Air Canada v British Columbia (Attorney General) [1986] 2 SCR 539 [12].

169. Canada v Prince Edward Island [1978] 1 FC 533 (CA) 549; Reference re Resolution to amend the Constitution (n 36) 820 (Martland & Ritchie JJ (dissenting, but not on this point)); Peguis Indian Band (n 15) 101 (Dickson CJ, concurring); PS Knight (n 2) [123]. See similarly Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922), 31 CLR 421 (HCA) 437-439; Davis v Commonwealth (1988) 166 CLR 79 (HCA) 93-94.

170. Alberta v Canadian Transportation Commission,[1978] SCR 61, 71.

171. Since Parliament has plenary authority over the territories, all Crown prerogatives in the territories belong to Her Majesty in right of Canada: PS Knight (n 2) [125], [133]. See also Northwest Territories (Commissioner) v Canada 2001 FCA 220, [2003] 3 FC 641 [39].

172. Constitution Act, 1867, s 91(7).

173. Constitution Act, 1867, ss 92(5), (13), (16), 109; Constitution Act, 1930; St Catherine’s Milling & Lumber Co v The Queen (1889) 14 App Cas 46 (PC); British Columbia (Attorney General) v Canada (Attorney General) (1889), 14 App Cas 295 (PC); R v Farwell (1894), 22 SCR 553, 558-561, overruled on other grounds by McNamara Construction (Western) Ltd v The Queen [1977] 2 SCR 654, 661; British Columbia (Attorney General) v The King (1922), 63 SCR 622.

174. PS Knight (n 2) [131]-[132].

175. Constitution Act, 1867, ss 91(8), 92(4), 102, 106, 126, 131. See also Thomson v Canada (Deputy Minister of Agriculture) [1992] 1 SCR 385.

176. PS Knight (n 2) [131]-[132].

177. See Reference re The Weekly Rest in Industrial Undertakings Act, The Minimum Wages Act and the Limitation of Hours of Work Act [1936] SCR 461, 473-477 (Duff CJ); Reference re Resolution to amend the Constitution (n 36) 776-778.

178. Liquidators v New Brunswick (n 16) 442-443.

179. See Toronto (City) v Ontario (Attorney General) 2021 SCC 34 [56].

180. Bonanza Creek (n 54) 578; Constitution Act, 1867, ss 12, 64-65. See also Prince Edward Island Terms of Union; British Columbia Terms of Union, Term 16; Alberta Act, s 10; Saskatchewan Act, s 10; Newfoundland Act, Schedule, Terms 11(b), 13; In re Sproule (1886), 12 SCR 140 at 206 (per Strong J (as he then was)). Section 12 of the Constitution Act, 1867 applies to each province admitted to Canada after 1867 or established in territory previously admitted to Canada: Manitoba Act, 1870, s 2; Prince Edward Island Terms of Union; British Columbia Terms of Union, Term 10; Alberta Act, s 3; Saskatchewan Act, s 3, except Newfoundland and Labrador for which a more specific provision was enacted: Newfoundland Act, Schedule Terms 11(a), 12.

181. Bonanza Creek (n 54) 578, 587. See also Constitution Act, 1867, ss 96, 132.

182. Bonanza Creek (n 54) 577-579. See also Windsor & Annapolis Railway Co (n 128) 388-389 (Strong J, dissenting).

183. Bonanza Creek (n 54) 585-587, citing Musgrave v Pulido (1879) 5 App Cas 102 (PC).

184. Bonanza Creek (n 54) 579, 586-587, citing Commonwealth of Australia Constitution Act, s 61.

185. Bonanza Creek (n 54) 586-587.

186. See Toronto v Ontario (n 179) [56], [75], [81]-[82].

187. See, by analogy, Mitchell v Minister of National Revenue 2001 SCC 33, [2001] 1 SCR 911; R v Desautel 2021 SCC 17 [68] (describing transformation of colonial law of Aboriginal rights into common law of Aboriginal rights).

188. Bonanza Creek (n 54) 586-587.

189. Constitution Act, 1867, s 10; The King v Carroll [1948] SCR 73, 129. Government refers here to the “action of ruling and directing the affairs of a state”: Oxford English Dictionary, 2nd ed, sub verbo “government”.

190. Constitution Act, 1867, ss 58, 62; Carroll (n 189) 129. See Saywell (n 141) 281-283.

191. Bonanza Creek (n 54) 586-587.

192. Bonanza Creek (n 54) 579, 587.

193. The commissions also refer to the possibility that further instructions could be issued.

194. Bonanza Creek (n 54) 587; British Columbia Power Corporation v British Columbia Electric Company [1962] SCR 642, 644-645; Operation Dismantle (n 162); Air Canada (n 168) 545-546, 548-549; Khadr (n 5) [36]-[37].

195. Andrew Heard, “The Provincial Crown and Lieutenant Governors” in D Michael Jackson, ed, Royal Progress: Canada’s Monarchy in the Age of Disruption (Dundurn 2020) 61.

196. Case of Prohibitions (n 43); Case of Proclamations (n 43); Miller I (n 1) [41].

197. Valin v Langlois (1879) 3 SCR 1, 19 (Ritchie CJ); Canada v Law Society (n 21) 326-327; Ontario v Criminal Lawyers’ Association (n 26) [17]; Reference re Code of Civil Procedure (n 21) [32]-[33], [84].

198. Wells (n 32) [31]-[32].

199. Canada (Human Rights Commission) v Canadian Liberty Net [1998] 1 SCR 626 [38]; Ordon Estate v Grail, [1998] 3 SCR 437 [46]; Canada (Attorney General) v TeleZone Inc 2010 SCC 62, [2010] 3 SCR 585 [42].

200. Molson v Lambe (1888) 15 SCR 253, 266-267 (Henry J); In Re Storgoff, [1945] SCR 526; Kempf v Kempf [1945] 4 DLR 723 (SKCA) [7]; Skogman v The Queen [1984] 2 SCR 93, 98-99; LS v British Columbia (Ministry of Children and Family Development) 2004 BCCA 244, 238 DLR (4th) 655 [38]; Auton (Guardian of) v British Columbia (Attorney General) 2002 BCCA 538 [60]; Yassin v Loubani, 2006 BCCA 509, 277 DLR (4th) 79 [1]; JESD v YEP 2018 BCCA 286 [76]; LT v DT Estate 2020 BCCA 328 [37]. See also MacDonald v Montreal (City) [1986] 1 SCR 460 [48]; Charkaoui v Canada (Citizenship and Immigration) 2007 SCC 9, [2007] 1 SCR 350 [28]; R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [2019] 2 WLR 1219 [60].

201. Reference re Residential Tenancies Act [1981] 1 SCR 714; Sobeys Stores Ltd v Yeomans [1989] 1 SCR 238; Reference re Young Offenders Act (Prince Edward Island), [1991] 1 SCR 252; R v Ahmad 2011 SCC 6, [2011] 1 SCR 110; Reference re Code of Civil Procedure (n 21).

202. MacMillan Bloedel v Simpson (n 124); Babcock v Canada (Attorney General) 2002 SCC 57, [2002] 3 SCR 3; R v Ahmad 2011 SCC 6, [2011] 1 SCR 110; Trial Lawyers Association (n 107); Reference re Code of Civil Procedure (n 21).

203. See, as concerns judicial review of administrative action, Quebec (Attorney General) v Farrah [1978] 2 SCR 638, 649, 656; Noël v Société d’énergie de la Baie-James 2001 SCC 39, [2001] 2 SCR 207 [27]; Dunsmuir (n 32) [31]; Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65 [24]; Reference re Code of Civil Procedure (n 21) [51], [68].

204. Toronto v York [1938] AC 415 (PC) 426; Valente v The Queen [1985] 2 SCR 673, 693; The Queen v Beauregard [1986] 2 SCR 56, 81-82; Provincial Court Judges Reference (n 34) [84]; Ell v Alberta 2003 SCC 35, [2003] 1 SCR 857 [31].

205. Provincial Court Judges Reference (n 34); BC v Provincial Court Judges (n 26).