Movatterモバイル変換

CANADIANINDEPENDENCE

(C)Andrew Heard 1990

           Canada's transitionfrom a self-governing British colony into a fully independent state was anevolutionary process, which arose in such a gradual fashion that it isimpossible to ascribe independence to a particular date. The Supreme Court of Canada reflected thisuncertainty when it said inRe Offshore Mineral Rights of British Columbiathat Canada's "sovereignty was acquired in the period between its separatesignature of the Treaty of Versailles in 1919 and the Statute of Westminster,1931..."^[1] However, the development of thisindependence had its roots before 1919, and was not actually completed untilwell after 1931. As Frank Scott hasargued, "Never at any time in [1919-39] was the full internationalpersonality of the Dominions, as distinct from Great Britain, establishedbeyond equivocation".^[2]  Indeed, symbolically-important legal tracesof Canada's colonial status were only shed with the passing of the Canada Act^[3]by the British Parliament in 1982. ThatAct not only provided for the first time a process by which Canada's basicconstitutional laws could be legally amended without action by the BritishParliament, but it also declared that no British law passed thereafter wouldapply to Canada. There are still twofinal vestiges of colonialism to be eliminated, those found in ss.55 and 56 ofthe 1867 Constitution Act which provide for the reservation and disallowance offederal legislation. Of course Canadahas been an independent nation for a number of decades, and these shadows ofher former status are nothing more than anomalies which illustrate how thelegal provisions of the Canadian constitution failed to keep pace with thepolitical developments which propelled Canada to full statehood.

           At its inception in1867, Canada's colonial status was marked by political and legal subjugation toBritish Imperial supremacy in all aspects of government - legislative,judicial, and executive. The ImperialParliament at Westminster could legislate on any matter to do with Canada andcould override any local legislation, the final court of appeal for Canadianlitigation lay with the Judicial Committee of the Privy Council in London, theGovernor General had a substantive role as a representative of the Britishgovernment, and ultimate executive power was vested in the British Monarch -who was advised only by British Ministers in its exercise. Canada's independence came about as each ofthese subordinations was eventually removed. 

           What is remarkableabout this whole process is that it was achieved with a minimum of legislativeamendments. Much of Canada'sindependence arose from the development of new political arrangements, many ofwhich have been absorbed into judicial decisions interpreting the constitution- with or without explicit recognition. Canada's passage from being an integral part of the British Empire tobeing an independent member of the Commonwealth richly illustrates the way inwhich fundamental constitutional rules have evolved through the interaction ofconstitutional convention, international law, and municipal statute and caselaw. 

                                             LegislativeIndependence

           When the Dominion ofCanada was created in 1867 it was granted powers of self-government to dealwith all internal matters, but Britain still retained overall legislativesupremacy. This imperial supremacycould be exercised through several statutory measures. In the first place, the Constitution Act of1867 provides in s.55 that the Governor General may reserve any legislationpassed by the two Houses of Parliament for "the signification of HerMajesty's pleasure", which is determined according to s.57 by the(British) Queen in Council. Secondly, s.56provides that the Governor General must forward to "one of Her Majesty'sPrincipal Secretary's of State" in London a copy of any federallegislation that has been assented to; within two years after the receipt ofthis copy, the (British) Queen in Council can disallow an Act. Thirdly, four pieces of Imperial legislationconstrained the Canadian legislatures. The Colonial Laws Validity Act of 1865 provided that no colonial lawcould validly conflict with, amend or repeal Imperial legislation whichexplicitly or by necessary implication applied directly to that colony; theMerchant Shipping Act, 1894 as well as the Colonial Courts of Admiralty Act,1890 required reservation of Dominion legislation on those topics for approvalby the British Government; and, the Colonial Stock Act of 1900 provided for thedisallowance of Dominion legislation which the British government felt wouldharm British stockholders of Dominion trustee securities. Most importantly, however, the BritishParliament could exercise the legal right of supremacy it possessed at common lawto pass any legislation on any matter affecting the colonies.

                     TheDisallowance and Reservation of Federal Legislation

           It is a curious anomalyof the Canadian Constitution that the Imperial powers of reservation anddisallowance still exist in legal form; neither have ever been repealed oramended. Had these powers been used aswidely as were those in relation to provincial legislation, the Imperialimprint would have been felt very firmly in Canada.^[4] However, both powers were first greatlyrestricted and then neutered by convention. Only one Canadian Act, the Oaths Act of 1873, was disallowed by theBritish government, and the last time the Governor General exercised the powerof reservation was in 1886. Thesepowers subsequently fell into desuetude and firm conventions have developedagainst their use. Even before these powers werenullified, however, their practical exercise was greatly restricted; asCassault J. of the Quebec Superior Court said in 1879, "Ce désaveu ne peutêtre prononcé par la Reigne que lorsequ'une loi sanctionée par le GouverneurGénéral empiète sur les prérogatives du Souverain ou du ParlementImpérial..."^[5] The reservation of Dominionlegislation on the initiative of the Governor General was nullified by aconvention agreed to at the first Colonial Conference convened by Britain in1887.^[6] By the time of the 1926 Imperial Conference,opinion had clearly solidified against an exercise of reservation ordisallowance, and a qualified statement was made to that effect. The report of the 1929 Conference statedquite plainly, "The Conference agree that the present constitutionalposition is that the power of disallowance can no longer be exercised inrelation to Dominion legislation". With regard to reservation, the report stated that the Britishgovernment's advice to the King would never be "against the views of theGovernment of the Dominion concerned"; thus a Governor General'sreservation would be totally ineffective. With the adoption of these resolutions by the full Imperial Conferencein 1930, the powers of disallowance and reservation of Dominion legislation canbe said to have been totally nullified by convention. The Imperial Conferences of 1929 and 1930 also led to the repealby the 1931 Statute of Westminster of the provisions of the Colonial Courts ofAdmiralty Act, 1890 and the Merchant Shipping Act, 1894 which had required thereservation, for British government approval, of Dominion legislation onrelated topics.^[7] 

           If the powers ofreservation and disallowance of federal legislation were ever to be consideredby a court it is not entirely clear what its verdict would be. Certainly in 1938, these powers relating tofederal legislation were said to be subsisting and unfettered in law by amajority of the Supreme Court, in answer to reference questions about thereservation and disallowance of provincial statutes.^[8] As Cannon J. declared, "The ImperialConferences ...could not and did not change the law".^[9] However, several developments since thenhave occurred which might lead to a different conclusion. The Canadian Governor General continued atthe time to forward copies of all federal legislation to the BritishGovernment, in fulfillment of his obligations under s.56 of the 1867Constitution Act and the Letters Patent of 1931; however, this practice stoppedin 1942.^[10] In 1947, the new Letters Patent which wereissued constituting the office of Governor General omitted a provision, foundin all previous Letters Patent, which mentioned the requirement to forward legislation;that same year, the federal Parliament repealed a Canadian statute of 1925^[11]which also provided for the forwarding of legislation to Britain. Since the power of disallowance may only beexercised after the receipt by the British minister of the Canadianlegislation, the practice of not forwarding legislation has effectivelyneutered the power of disallowance. 

           However, the actualpowers of disallowance or refusing assent to a reserved bill might also bedeclared by the courts to be spent even in law, because of the inability of theBritish government to advise the Queen on Canadian matters. This inability grew, as we shall see later,purely out of political practice, but it would be a most regrettable display offormalist legal theory if Canadian judges were to hold that even in the fullflower of Canadian independence British Ministers still retain these rights inlaw.

                         TheLegislative Supremacy of the British Parliament

           The unfettered legalpower of the British Parliament to enact laws for Canada was gradually reducedby a combination of convention and statute law; to the point that it could onlybe legitimately exercised in 1982, the date of its final extinction, in orderto give effect to a Canadian request to amend the various British North AmericaActs. A convention against theunilateral exercise of the power dates at least from the Colonial Conference of1887, where it was agreed that Britain should only legislate for a Dominionwith its consent.^[12] This convention solidified with time, and by1928 Corbett and Smith described a `well established convention' that "thelegal supremacy of Parliament should only be employed with the consent of theDominions in order to enact legislation which the Dominions are unable to enactthemselves".^[13] In the remarkableCopyright Ownerscase decided in 1958, the High Court of Australia relied in part upon theconventions restraining the legislative power of the British Parliament to rulethat the Copyright Act of 1928 was not in force in Australia. The absence of a request by Australiaindicated that the Act had not been intended to extend there:

Constitutional practice governing the politicalrelations between the United Kingdom and the Commonwealth, as at that time,could not but enter into the question whether the Act of 1928 was intended tooperate in Australia. The rule ofconstruction which found its source in the political and constitutionalrelations between the United Kingdom and the Commonwealth before the Statute ofWestminster would raise a presumption that the Act of 1928 was not intended tooperate of its own force in this country.^[14]

           The 1929 ImperialConference recommended that the British Parliament pass legislation which wouldfurther restrict the applicability of British law in the Dominions; theserecommendations were approved by the Imperial Conference a year later and wereembodied in the Statute of Westminster in 1931. Britain's legislative superiority was restricted by both aformulation of the existing convention in the preamble and in a furtherre-statement of this rule in s.4 of this Act: "No Act of the Parliament ofthe United Kingdom passed after the commencement of this Act shall extend, orbe deemed to extend, to a Dominion as part of the law of that Dominion, unlessit is expressly stated in that Act that that Dominion has requested, andconsented to, the enactment thereof". 

                           TheLegislative Powers of Canadian Legislatures

           Until the passage ofthe Statute of Westminster, no Dominion legislature had the power to pass eitherlaws with normal extra-territorial effect or laws purporting to amend or repealImperial laws which expressly or necessarily applied to it; the need for thischange was demonstrated in 1925 when the Australian High Court had ruledinoperative sections of an Australian Commonwealth Act which contradictedprovisions of the Imperial Merchant Shipping Act.^[15] Section 2 of the Statute of Westminster isperhaps the most significant legal provision relating to Canada's acquisitionof legislative sovereignty, because it accorded both Parliament and theprovincial legislatures the power to pass any laws amending or repealinglegislation of the Imperial Parliament; also, no Canadian law passed thereaftercould be held void because it conflicted with Imperial legislation.^[16] Even if the Imperial Parliament passed abill against the wish of a Canadian government, it could be repealed by thelocal legislature. However, none ofthese provisions related to the British North America Acts. This exclusion had been made at the requestof a Dominion-Provincial Conference in 1931, because the Canadian firstministers could not agree on a method to amend the constitutionthemselves. Section 3 of the Statutealso gave the Dominion Parliament "full power to make laws of extra-territorialoperation"; but this provision did not apply to provincial legislatures,and they still lack this general power.^[17] In 1933, the Canadian Parliament passed anAct which provided that all federal Acts already in force would have theextra-territorial force they would have had if passed after the Statute ofWestminster.^[18]  6 

           These provisions givingall Canadian legislatures the ability to amend or repeal Imperial legislationand the Canadian Parliament the power to pass extraterritorial laws form thefoundation of Canada's acquisition of legislative independence. The transition between the formerlegislative regime and that prevailing after 1931 is reflected in a 1933 courtcase dealing with the Canada Shipping Act. This Act was declared inoperative because it had been passed prior tothe Statute of Westminster and had not received the formal approval of theBritish Government required under the UK Merchant Shipping Act;^[19]the following year the Canadian Parliament replaced the inoperative Canada ShippingAct and repealed all the British Acts dealing with Canadian Shipping.^[20] 

                         ConventionsSupporting the Statute of Westminster

           In recent decades muchhas been made of the passage of the Statute of Westminster and how it gavelegislative sovereignty to the Dominions. However, the specific provisions of the Act are not nearly sograndiose. Most especially, theexclusion of the British North America Acts from any provisions of the Statutecontinued the British government's complete legal supremacy over the Canadianconstitution. And, as K.C. Wheare wrotein 1933, the Statute of Westminster did not end Britain's legislativesovereignty, "indeed the passage of the act is proof of itsexistence".^[21] He went on to add:

It certainly does not make equal the powers ofDominion Parliaments, or the powers of the Parliaments of all the members ofthe Commonwealth. The ImperialParliament possesses a right which is not shared and cannot be shared with anyother Parliament in the Commonwealth, the right to pass legislation extendingthroughout the Commonwealth.^[22]

The Statute of Westminster did not place any legal impediment in the wayof the Imperial Parliament passing laws for the whole Empire. As Wheare later argued, the provisions ofs.4 actually only form a rule of construction, and not a restriction on theImperial Parliament's power:

It is not directed to the United KingdomParliament; it is directed to the courts. ...it does not render it legallyimpossible for the United Kingdom Parliament to legislate for a Dominionwithout the request and consent of the Dominion. ...It is not necessary for the United Kingdom Parliament torepeal section 4 of the Statute explicitly. It merely has to legislate for a Dominion, and that legislation frees itfrom the restriction voluntarily accepted and expressed in section 4.^[23]

F.R. Scott, also echoed these views in 1945 when he wrote that the mainprovisions of the Statute of Westminster were:

a mere extension of existing authority ratherthan an irrevocable transfer of sovereignty, and ...a self denying ordinanceestablishing a rule of construction rather than a binding restriction on thefuture powers of the Imperial legislature. Hence the Statute of Westminster could be, and was interpreted by manyauthorities as not affecting the previous indivisibility of the Crown ordiminishing the legal sovereignty of the Parliament which enacted it.^[24]

           In 1982, the CivilDivision of the English Court of Appeal demonstrated the fragility of theimpediment found in s.4 of the Statute of Westminster, when it ruled that aBritish Act only had to contain a phrase saying that Canada had consented tothe legislation for it to be valid; it need not be true at all that the consenthad in fact been sought and given.^[25] 

           The only general restraintupon the Imperial Parliament not to legislate as it wished for Canada remaineduntil 1982 theconventional rule, reaffirmed in the preamble of theStatute of Westminster, that Britain legislation would only extend to aDominion at its request and consent. The preamble of the Statute of Westminster also stated a more specificconventional rule which had been first agreed to by the 1929 ImperialConference: "any alteration in the law touching the Succession to theThrone or the Royal Style and Titles shall hereafter require assent as well ofthe Parliaments of all the Dominions as of the Parliament of the UnitedKingdom". 

           Although the BritishParliament was conventionally bound to legislate for Canada only on her requestand consent, there is strong evidence that the British did not feel anobligation to enact any request so made. K.C. Wheare wrote in 1953 that the British Parliament "was notbound by convention to alter the [B.N.A.] Act if and when the DominionGovernment or Parliament requested it to do so".^[26] Much more recently, the report of theBritish parliamentary committee which investigated issues arising out of PierreTrudeau's threatened unilateral efforts to patriate the Constitution concludedthat although the British Parliament was bound to act only upon a request fromCanada, it was not bound to act upon every request from the federal governmentand Parliament alone; however, the motivation behind this lack of automaticaction was to ensure that Canadian conventions concerning the request forBritish legislation had been complied with.^[27] The Supreme Court of Canada decided that arequest for an amendment of the British North America Acts that changedprovincial powers could only be properly made, according to convention, with a"substantial measure of provincial consent".^[28] However, there is much to suggest that theCourt was mistaken in not finding that the unanimous consent of the provinceswas needed.^[29] 

           A subject which hasbeen much debated since the passage of the Statute of Westminster is whetherany of the powers conferred upon the Dominion legislatures or the restrictionsagainst the application of future Imperial legislation could be subsequentlyrepealed by the British Parliament.^[30] Some difficulties concerning the finality ofthe grant of powers under this Statute arise from the common law rules whichbuttress the principle of parliamentary sovereignty in the Britishconstitution. The most basic rulesupporting this principle is that no parliament may tie the hands of a futureparliament; what one parliament has done another can undo. It is not at all clear whether the Britishcourts might be forced to alter established views of parliamentary sovereigntyif the Statute of Westminster were unilaterally amended or repealed.^[31] However, it does appear that this Statutehas acquired a special place among British constitutional documents, and it issafe to say that a convention has existed to protect it from destructiveamendment.^[32] In 1935, Viscount Sankey commented inBritishCoal Corp. v. The King, that while the Imperial Parliament could "as amatter of abstract law", alter or repeal provisions of the Statute,"that is theory and has no relation to realities".^[33] Two years later R.T.E Latham concluded that"the repeal of the Statute is not a practical possibility to be reckonedwith..."^[34] 

           This conventional ruleprotecting the Statute of Westminster appears to be the ultimate conveyor oflegislative supremacy to the Dominions. Even the provision of the Canada Act 1982 which supposedly extinguishedthe British Parliament's jurisdiction over Canada, might in strict theory berevoked by the Westminster Parliament; but again, this event is not in therealm of practical possibilities.^[35]

           Peter Hogg has arguedthat regardless of the views of British courts on the ability of the ImperialParliament to repeal legislation such as the Statute of Westminster or the 1982Canada Act, "it is inconceivable that the Supreme Court of Canada wouldaccept the resuscitated power and uphold the new law".^[36] In 1937, the Appeal Division of the SouthAfrican Supreme Court heard a case in which the view was forwarded that theBritish Parliament could repeal the Statute of Westminster; but the courtdeclared unanimously: "We cannot take this argument seriously. Freedom once conferred cannot berevoked".^[37] Slattery has argued strenuously that it isthe judicial acceptance of such a new grundnorm pervading Canadian case lawwhich has been the basis of Canada's legal independence.^[38]

           In summary then,Canadian legislative independence was achieved in several steps. The powers of the Imperial Parliament tomake, amend, or repeal any law at will for the whole Empire became restrictedby conventional rules which required that legislation applying to theself-governing Dominions be consented to by them; in addition the powers ofImperial reservation and disallowance have been nullified by convention. The passage of the Statute of Westminstergave Canadian legislatures the power to amend and repeal any Imperial legislationexcept the British North America Acts; at the same time, the previousconventional rule restricting the Imperial legislative power was given somelegal effect in the form of a rule of construction that required Britishlegislation to contain a clause stating that a Dominion had requested andconsented to an act before it was valid law in that Dominion. The final legal step was achieved in 1982with the passage of the Canada Act, which contained another rule ofconstruction declaring that no future British Act would have effect in Canada;furthermore, the power of the British Parliament to amend the formalconstitution of Canada was passed to a new legislative authority vested in theGovernor General, who can now proclaim amendments when authorized by a varyingnumber of provincial legislatures and Parliament.^[39] However, conventional rules have continuedto play a crucial role in enlarging and protecting these legal provisions. First, a convention required that Dominionconsent actually be sought and given to British legislation applying to theDominions. Secondly, the unilateralBritish repeal of the provisions of the Statute of Westminster, or the CanadaAct has been barred by a fundamental convention protecting the independence ofCanada and the other Dominions. Thereis no doubt that this convention would be upheld in substance, if not in name,by Canadian courts.

                                                 JudicialSovereignty

           The Constitution Act of1867 failed to provide a specific court of appeal for Canada. Instead, appeals went from the superiorcourts of the provinces to the Judicial Committee of the Privy Council inLondon, as they had before Confederation.^[40] The judicial powers of this committee hadtheir origins in the power of the Norman kings of England to dispense justice; however,this prerogative power gained some statutory basis in the Judicial CommitteeActs of 1833, and 1844. In essence, theLaw Lords sat as a committee of the British Privy Council to hear appeals fromall over the Empire;^[41]the idea was not only just to provide a final court of appeal, but also toprovide some sense of unity to the law being applied in the many colonies.^[42] For decades after Confederation, theultimate interpreter of Canadian law was this Imperial institution. 

           Although the JudicialCommittee of the Privy Council is formally only a body which `advises' theQueen in Council of their `opinions' onthe legal matters referred to them, it is not doubted that it is in fact acourt of law. As Viscount Sankeyclearly stated, the Judicial Committee has been able to operate as a finalcourt of appeal because of constitutional conventions:^[43]

It is clear that the committee is regarded inthe Act as a judicial body or court, though all it can do is to report orrecommend to His Majesty in Council, by who the Order in Council which is madeto give effect to the report of the Committee is made. But according to constitutional conventionit is unknown and unthinkable that His Majesty in Council should not giveeffect to the report of the Judicial Committee, who are thus in truth anappellate Court of law, to which by the statute of 1833 all appeals withintheir purview are referred.

           In 1875, the CanadianParliament exercised the power granted by s.101 of the 1867 Constitution Act toestablish "a General Court of Appeal for Canada, and for the Establishmentof any additional Courts for the better Administration of the Laws ofCanada"; and created the Supreme Court of Canada.^[44] However, the Supreme Court was not the finalcourt of appeal for Canada, as a case could be appealed from there to theJudicial Committee; furthermore, appeals from the provincial superior courtscould still be taken directly to the Judicial Committee, bypassing the SupremeCourt of Canada. Regardless of whatstatutory provisions might be made in Canada concerning judicial appeals,litigants could petition the Judicial Committee to exercise the ancient royalprerogative power to hear an appeal and dispense justice. In 1888, the Canadian Parliament tried toabolish appeals to the Judicial Committee in criminal cases; nevertheless,appeals continued to be heard under the prerogative of the British Crown. In the 1926 caseNadan v. The King,the Judicial Committee ruled ultra vires the provision in the Criminal Code ofCanada which ostensibly abolished Privy Council Appeals.^[45] It held that this measure was not within thepower of the Canadian Parliament, because it attempted in effect to regulatethe exercise of the prerogative power in Britain and to repeal theapplicability of the Judicial Committee Acts with respect to Canada;^[46]since the Canadian Parliament could neither make laws to operate outside ofCanada, nor could it amend or repeal Imperial legislation, the appeals to theJudicial Committee could not be abolished by Canadian statutes.

           The passage of theStatute of Westminster, however, provided the Canadian Parliament with theneeded legislative powers. ThusParliament once again enacted a provision to abolish appeals in criminal cases,and this was upheld by the Judicial Committee^[47] on thegrounds that the Statute of Westminster now provided the authority which it wassaid to lack inNadan. In 1947,the Judicial Committee decided that the Canadian Parliament could abolishappeals to the Privy Council of civil cases from provincial courts, whichcontinued to be given under the prerogative power to allow appeals; thisprerogative was said to be a `fetter' on the power of the Canadian Parliamentwhich could be removed due to the Statute of Westminster.^[48] In this decision, Lord Jowitt also lookedbeyond the provisions of the Statute of Westminster to the statements ofequality declared by the various Imperial Conferences and stated, "It isnot consistent with the political conception which is embodied in the BritishCommonwealth of Nations that one member should be precluded from setting up, ifit so desires, a Supreme Court of Appeal having a jurisdiction both ultimateand exclusive of any other member".^[49] Because of this decision, an Act was passedin 1949 which ended appeals of all Canadian cases to the Privy Council.^[50] Thus, Canada finally gained completesovereignty over the interpretation and enforcement of Canadian law. Only in this aspect of the acquisition ofCanadian independence from Britain was each step essentially built uponspecific developments in positive law, rather than conventional rules based onpolitical practice or agreement.^[51] 

                                              ExecutiveIndependence

           In contrast, Canada'sindependence from the British executive was marked by significant politicaldevelopments and few changes in positive law. The original Constitution Act of 1867 declared in its preamble that thefour federating provinces desired to be "united into One Dominion underthe Crown of Great Britain and Northern Ireland"; furthermore, s.9 of theAct stipulated that "The Executive Government and Authority of and overCanada is hereby declared to continue and be vested in the Queen". The new Dominion of Canada was a colony;albeit self-governing in domestic matters, but still a colony. British ministers alone had the right toadvise the monarch. The GovernorGeneral was appointed on the advice of the British government and initially hada substantive role as its representative in Canada. Canadian legislatures were incompetent as a matter of common lawto legislate on any issue relating to the Monarch's office or any of the royalprerogatives which did not concern the internal governance of Canada.^[52] Thus the King or Queen over Canada was theperson who was the monarch of Britain, according to the laws of Britain, andheld whatever title was granted under British law. Most importantly, Canada's subordination to the Imperial Crownmeant that the British government initially determined all matters of foreignpolicy. Canada was just one part of thewhole British Empire, and the foreign policy of the Empire was conducted onbehalf of the British Crown by British ministers. 

           The main stumblingblock in the way of Canada acquiring an executive power which was trulyindependent of Britain's was the pervasive acceptance of the doctrine that theCrown was indivisible throughout the Empire. The monarch could only act as one, and thus could only be directlyadvised by the British government. Canada was only able to escape these colonial bonds and assert anexecutive power, independent of Britain's, when this doctrine of indivisibilitywas eroded by political practices reflecting the growing demands of theDominions to be able to direct their own affairs.    

                                  TheGovernor General and the Monarch

           The Governor Generalwas originally appointed by the monarch on the advice of the British cabinet,and only British individuals were appointed to the position. The Governor General was perceived as arepresentative of the British government and, although advised by Canadianministers on most matters, was ultimately responsible to the Colonial Secretary- later, the Secretary for the Dominions. Canadian government ministers could only deal with Britain through theGovernor General. However, with thestrengthening of the traditions of self-government in Canada, Governors Generalcame gradually to lose any substantive role in actively representing theBritish and Canadian governments to each other; they became merely conduits forcommunications. By the time of the 1926Imperial Conference, matters had solidified sufficiently for the report adoptedat that meeting to state:

In our opinion it is an essential consequenceof the equality of status existing among the members of the BritishCommonwealth of Nations that the Governor General of a Dominion is therepresentative of the Crown, holding in all essential respects the sameposition in relation to the administration of public affairs in the Dominion asis held by His Majesty the King in great Britain, and that he is not therepresentative or agent of His Majesty's Government in Great Britain or of anyDepartment of that Government.

The report went on to recommend that in future the governments of theDominions be able to communicate directly with the British government, ratherthan through the Governor General; and starting July 1, 1927 Dominion ministersdealt directly with their British counterparts.^[53] Writing in 1929, Noel Baker mentioned that aconvention had already arisen by that time whereby the British government wouldonly nominate an individual to be Governor General after consulting with theDominion government.^[54] However, the 1929 Imperial Conference made arecommendation, subsequently adopted by the full Conference in 1930, that fromhenceforth the appointment of Governors General should only be the concern ofthe Dominion governments alone. Thesections of this report bear quoting at length for they illustrate howconcisely conventions may be phrased:

1. The parties interested in the appointment ofa Governor General are His Majesty the King, whose representative he is, andthe Dominion concerned.

2. The constitutional practice that His Majestyacts on the advice of responsible Ministers applies also in this instance.

3. The Ministers who tender and are responsiblefor such advice are His Majesty's Ministers in the Dominion concerned.

4. The Ministers concerned tender their formaladvice after informal consultation with His Majesty.

With these passages, the Imperial Conference created brand newconventional rules. The report went onto recommend that each Dominion could choose the manner of communicating withthe King and how the instrument appointing the Governor General might bephrased. In the event, it was not until1931 that Dominion governments actually communicated directly with the King;^[55]in the intervening period, correspondence was conducted through Britishministers who acted as passive channels of communication. The Letters Patent and Instructions for theCanadian Governor General were re-issued in 1931 on the appointment of LordBessborough, the first made entirely on Canadian advice, in order to remove anyreferences to British ministers; and in 1939 the Canadian Parliament passed theSeals Act providing a complete set of official seals which would be kept in thecustody of Canadian ministers.^[56]  These minimal changes were the only oneseffected in legal documents to accompany the transfer of the control of theexecutive offices from the British government to responsible Canadian ministers. The Canadianisation of the office ofGovernor General was completed in 1952 with the appointment of the firstCanadian to the position, Vincent Massey.

           The role of the monarchwith respect to Canada has also evolved slowly over the years. At first the Monarch's only dealings withrespect to Canada were conducted solely on the advice of Britishministers. In the 1920s, Canadianministers first acquired the informal right to advise the king on internationalaffairs, albeit initially through the intermediacy of British ministers. The agreement of the 1930 ImperialConference that Governors General should be appointed solely on the advice ofDominion ministers led to the assertion in 1931, first by the Irish and then byall Dominion Governments, of a right of direct access to the King. 

           The major alterationcame in 1947 with the issuance of new Letters Patent which authorized theCanadian Governor General "to exercise all powers and authorities"belonging to the monarch with respect to Canada, except the amendment of theLetters Patent.^[57] Despite this complete delegation of powersin legal form, the monarch has continued to perform several functions denied inpractice to the Governor General. Until1977, the issuance of all commissions for Canadian Ambassadors and the receiptof foreign Ambassadors' Letters of Recall were functions reserved to the Queen;these functions have since been performed by the Governor General.^[58] The single area in which the Queen presentlyplays any substantive on-going role is in the appointment of a new GovernorGeneral; however, it appears that even this function could be performed by theretiring Governor General if so advised by the Prime Minister.^[59] Nevertheless, the Queen continues to be keptabreast of Canadian affairs through weekly communications with the GovernorGeneral. The Queen may still exerciseany of her powers personally when so advised. Thus the Queen has opened sessions of Parliament in 1957 and 1977, andshe proclaimed the 1982 Constitution Act into force during a royal visit thatyear.^[60] It should be emphasised that although theGovernor General is empowered to exercise the Queen's powers, there is no legalbar to the Queen exercising them;^[61]the only impediments are conventional rules which presently limit her to only afew activities. Furthermore, theLetters Patent are not sufficient to alter the express provisions of the formalConstitution relating to the Queen. Thedelegation of powers contained there, such as her position as Commander in Chiefof the Armed Forces, cannot amount to a final abdication of those powers by themonarch in favour of the Governor General.^[62] 

                                          TheDivisibility of the Crown

           The question of whetheror not the British Crown was divisible among the various territories of theEmpire was one which dogged the Dominions' development of an executiveauthority independent of Britain. Rightup to the early 1920s, constitutional opinion solidly supported the notion thatthe Crown was an indivisible unity. AsA.H. Lefroy wrote in 1918, "The Crown is to be considered as one andindivisible throughout the Empire; and cannot be severed into as many kingshipsas there are Dominions, and self-governing colonies".^[63] The practical consequences of thisindivisibility are underlined in a variety of court cases from around theEmpire.^[64] Not only could colonial governments claimthe prerogative powers of the Crown needed for the purposes of governing thecolony - such as pardoning^[65]and precedence over other creditors^[66] - but alsothe forfeiture of a felon's property owed to a colonial government wassatisfied with property in England;^[67] soldiers whoenlisted in New South Wales to fight in the Boer War were paid by the BritishGovernment at a rate less than half of that promised by their colonialgovernment.^[68] 

           Nevertheless, thecourts were also forced to pay attention to the fact that the Crown could be aparty to legal action between various colonial governments; this was especiallyunderlined in cases brought in Canada and Australia, where the federal systemsensured a continuous stream of suits between governments.^[69] One issue of these distinct legalpersonalities was the effect of legislation purporting to bind "theCrown". In 1918, the Supreme Courtof Canada ruled that provincial legislation could not bind the Crown in rightof the Dominion except "by express terms or necessary intendment";^[70]thus a distinction was underlined between the legal personalities of the Crown,and legislation of one Canadian jurisdiction had to specifically mention thatthe Crown in right of the other level of government was to be bound by thelegislation.^[71] References to the indivisibility of theCrown became tempered with statements such as one by the Viscount Haldane in1919 that the Crown in Australia "acts in self-governing States on theinitiative and advice of its own ministers in these States".^[72] The recognition of the fact that the Crownacts on the advice of different sets of ministers and legislators led to cleardistinctions being drawn between the control of, and access to, revenues in thevarious jurisdictions of the Empire. In1932, the Privy Council firmly drew a line between the provincial and federaltreasuries in Canada: "It is true there is only one Crown, but as regardsCrown revenues and Crown property by legislation assented to by the Crown thereis a distinction to be made between the property in the Province and therevenues and property in the Dominion. There are two purses."^[73] 

           The divisibility of theCrown was forcefully underlined in 1982 when several Canadian native Indiangroups failed in legal actions in British courts to block the passage of the1982 Constitution Act. Lord Denningclearly stated in one decision that the political developments of the twentiethcentury had fundamentally altered the legal position of the Crown:

Hitherto I have said that in constitutional lawthe Crown was single and indivisible. But that law was changed in the first half of this century, not bystatute, but by constitutional usage and practice. The Crown became separate and divisible, according to theparticular territory in which it was sovereign. This was recognised by the Imperial Conference of 1926. ...Thenceforth the Crown was no longersingle and indivisible. It was separateand divisible for each self-governing Dominion or province or territory.^[74]

Thus the courts have come to recognise that the Crown can and does actin distinct and separable manners in each of the jurisdictions of the formerEmpire; and the recognition in case law of these different legal personalitieswas largely based upon the actual practices of government which had evolvedacross the Empire. 

           The divisibility of theCrown was further advanced by legislation relating to the royal style andtitles, regency, and succession. Thepower to legislate on the title of the monarch originally reposed solely withBritain. In 1901, the BritishParliament authorised a change in the title to included specific reference tothe "British Dominions". In1926, the Imperial conference agreed that a further change was necessitated bythe separation of the Irish Free State from the United Kingdom. The report of this conference gave unanimousapproval to the change required, but first noted that "it would be inaccord with His Majesty's wishes that any recommendation should be submitted tohim as a result of the discussion at the Conference". This precedent saw the emergence of a newconvention requiring the approval of all the Dominions before the BritishParliament authorized alterations to the royal style and titles. This convention was recognized and amplifiedby the 1929 Imperial Conference report; as noted previously, the BritishParliament was said to require the assent of the Dominion Parliaments beforelegislating upon either the royal style and titles or succession to thethrone. After approval by theConference in 1930, this convention was included in the preamble of the Statuteof Westminster.  

           The legislativeconfusion which followed the abdication of King Edward VIII in December of 1936was an important step in the evolution of Dominion status, because itdemonstrated that the Imperial Crown could be an entirely divisible entity inlaw. All the Dominion governments hadbeen warned that the King was about to abdicate the throne; indeed, theCanadian government sent a cable urging him to put his duty as King ahead ofhis desire to abdicate and marry Wallace Simpson. The news that the Instrument of Abdication had been signed wascabled to all the Dominion governments. Australia's Parliament was in session at the time and gave its formalassent to British legislation, as required by the convention recited in thepreamble of the Statute of Westminster. The governments of New Zealand, Canada, and South Africa gave theirconsents as their Parliaments were not in session; the British Parliamentpassed an Abdication Act on the following day, December 11th, that gave legaleffect to the Instrument of Abdication and brought George VI to the throne.^[75] 

           The divisibility of theCrown became a matter of law in some jurisdictions, however, through theactions of two Dominion Parliaments. The Irish Free State passed an Act declaring that the abdication tookeffect on December 12th, while the South African Parliament later passed an Actthat declared that the abdication had taken effect in South Africa on December10th. When the Canadian Parliament metin the new year, it passed an Act^[76]giving its assent to the British legislation. The assumption of this legislative authority was legally redundantbecause the British Act was undoubtedly already in force in Canada; it compliedwith the requirements of s.4 of the Statute of Westminster by containing areference to the fact that it was being enacted with the request and consent ofCanada, and a proclamation announcing that the accession to the Throne had alsobeen duly made by the Governor General.^[77] But as Clokie observed about the CanadianAct, "Whether necessary or not, it was clearly designed to demonstrateCanada's equality with Britain in the British Commonwealth and to display theCanadian aspect of the monarchy".^[78] Even though the courts in South Africa andthe Irish Free State would recognise the divisibility of the Crown and theauthority of their own laws on the succession, these measures had nopractical effect outside those twoDominions. As far as Canada, NewZealand, and Australia were concerned, the Crown remained a legal unity sincetheir new monarch came to the throne through British legislation.

           In 1937, the BritishGovernment informed the Dominions that it would be introducing legislation toprovide for a regency in the event of the new King's incapacity. Although it is not clear whether regency isproperly a matter of `succession' upon which Britain must conventionally seekDominion consent before passing any legislation, the British government stillmade this effort. However, the DominionPrime Ministers at a conference in 1935 declined to have such legislationextend to them, because they felt that the Governors General could perform anyroyal task required during a monarch's incapacity.^[79] In the event neither the 1937 Regency Actnor subsequent Regency Acts passed in 1943 and 1953 were passed with anyreference to Dominion assent. Thereforethey have not had the force of law in Canada, because they fail the rule ofconstruction found in s.4 of the Statute of Westminster.^[80] Since the new Letters Patent were issued in1947 authorizing the Canadian Governor General to exercise all the monarch'spowers there would be no function required of a Regent which relates to Canada;even the appointment of a new Governor General could be accomplished by theincumbent. 

           When India gainedindependence, two changes were required to be made to the Royal Style andTitles in effect around the Commonwealth, which had last been amended by theBritish Government in 1927. In 1948,the British Government and all the remaining Dominions agreed to remove`Emperor of India' from the title; in so acting they were following theconvention recited in the preamble to the Statute of Westminster. However, when India decided to become arepublic but still remain in the Commonwealth, the Indian governmentacknowledged the Queen as the Head of the Commonwealth, a title which had notpreviously existed. Within a few yearsseveral other colonies were on the verge of following India to independence anda meeting of the heads of Commonwealth governments in 1952 decided that theRoyal Style and Titles needed to be changed more substantially. This meeting declared, "...it would bein accord with established constitutional practice that each member countryshould use for its own purposes a form of title which suits its own particularcircumstances but retains a substantial element which is common to all". In 1953 the Canadian Parliament passed aRoyal Style and Titles Act which gives the Queen her official title in Canada:"Elizabeth the Second, by the Grace of God, of the United Kingdom, Canada,and Her Other Realms and Territories, Queen, Head of the Commonwealth, Defenderof the Faith". K.C. Wheare hasunderlined how much the Canadian government at the time stressed the Britishelement of the Crown.^[81] In the debate on this Bill, Prime MinisterSt. Laurent told the House:

Her Majesty is now Queen of Canada but she isthe Queen of Canada because she is Queen of the United Kingdom... It is not a separate office ...it is thesovereign who is recognised as the sovereign of the United Kingdom who is ourSovereign...^[82]

           The agreement of theCommonwealth Heads of Government in 1952 has effectively ended the previousconvention that any changes in the Royal Style and Titles should only be madewith the assent of all Commonwealth countries who retain the Queen as Head ofState.^[83] Indeed the Australian Parliament changed theformulation in 1973 from one similar to Canada's to simply "Elizabeth theSecond, Queen of Australia and Her Other Realms and Territories, Head of theCommonwealth".^[84]      Itdoes not seem that a Canadian Parliament could now amend the Canadian title tosomething like the Australian one. TheCanadian title clearly emphasises that the Canadian sovereign is one and thesame as the British monarch, whereas the Australians deliberately eliminatedthis connection. Now that the office ofthe Queen is protected by the amending provisions of the 1982 Constitution Act,such an alteration in the royal title would appear to require the unanimousapproval of all the provincial legislatures as well; the elimination of theclear connection with Britain seems to be a significant change in the office ofthe Canadian monarch and not just a simple change in title.^[85]

                                                   ForeignRelations

           One important aspect ofthe historic indivisibility of the Crown lay in the conduct of foreignaffairs. Originally, if the monarch signeda treaty or declared war, all the Empire was effected by that action. The final assumption of independent controlover these powers of the Crown overcame Canada's last impediments to effectivenational sovereignty. In many respects,the legal ability to conduct foreign relations is the ultimate test of anation's sovereign statehood. Theprocess by which Canada acquired a complete and independent internationalpersonality was characterised by the evolution of new political arrangements,rather than changes in positive law. Although the acquisition of international sovereignty resulted fromchanges in political practice, important consequences may be seen for Canadianconstitutional law. 

           Canada's entry onto theinternational stage was marked by several clear innovations in politicalpractice.^[86] The participation of Sir John A. MacDonaldas part of the British delegation which negotiated the Treaty of Washington in1871 marked the first step towards Canada's international capacity. Especially in bilateral trade issues,Canadian representatives played an increasingly dominant role in negotiatinginternational agreements for Canada.^[87] However, British participation was alsonecessary to give any formal ratification to the agreements reached. Thus British government signatures wererequired on a commercial treaty Canadian representatives negotiated with Francein 1907. Canada continued to negotiatedirectly with foreign states, and in 1911 the Canadian government reached aReciprocity Agreement with the US. Thatsame year Canada began to send separate delegations to multi-lateralnegotiations, on a US invitation to a conference on industrial property inWashington. Then the King signedseparate powers for Dominion plenipotentiaries to international conferences onradio broadcasting in 1912 and on safety at sea in 1913. However, the significance of thesedevelopments should not be overstated. Although Canada had acquired a separate international profile, it wasstill very much regarded as a constituent part of the British Empire. 

           The First World Warbrought political developments which gave the Dominions an important step uponto the international stage. Becauseof their contributions to the war effort, they demanded to be separately representedin the negotiations leading up to the peace treaties. In 1919, plenipotentiaries for each of the Dominions signed theTreaty of Versailles, although the King signed once as High Contracting Partyfor the whole Empire. This treaty alsoestablished the League of Nations, in which each of the Dominions had aseparate membership. These developmentsare easy to exaggerate, as Lloyd George did when opening the 1921 ImperialConference by declaring that, "British Dominions have now been acceptedfully into the community of nations".^[88] But, as James Crawford has pointed out:"The League Covenant allowed the admission of any `fully self-governingstate, Dominion, or Colony'(Art.1), with the inference that Dominion status wassomething between that of `Colony' and `State'".^[89] In 1923, Canada concluded its first majortreaty without a countersignature by a British minister, the Halibut Treatywith the US. An Imperial Conference washeld later that same year to deal with the negotiation of internationalagreements by the Dominions, and it was agreed Dominion representatives couldnegotiate and sign treaties entirely on their own; however, it was agreed thatefforts should be made to ensure cooperation among the Dominions and Britainwhen negotiating matters which effected more than one party. This ability of Dominions to negotiate andsign treaties on their own was an important development in their road toindependence, which developed as other foreign countries expressed theirwillingness to deal directly with them and as Britain acceded to Dominiondemands that they be able to handle their own negotiations.

           Nonetheless, thedevelopment of an independent capacity to enter into international agreementsdid not mean that the Dominions were freed of their Imperial constraints. This new capacity of the Dominionsco-existed with the power of the British Government to take action in foreignrelations which also effected the Dominions. In 1922, Britain declared war for the Empire against Turkey over theChanak crisis and brought this to a close with the Treaty of Lausanne in 1924,which it negotiated on its own. However, the over-riding power of the British government was limited byconvention when the Imperial Conference met in 1926. There it was agreed that a government must, "before takingany steps which might involve the other governments in active obligations,obtain their definite assent". 

           The right of thevarious Dominion governments to advise the King was also stressed at thisconference: "The plenipotentiaries for the various British units shouldhave full powers, issued in each case by the King on the advice of theGovernment concerned, indicating and corresponding to the part of the Empirefor which they are to sign". Thefirst permanent diplomatic missions were established 1927 when the King actedon the advice of the Canadian government to appoint Vincent Massey as Canadianrepresentative in Washington; the Irish Free State also had a representativeappointed to Washington that year, and the American government responded bysending ambassadors to Ottawa and Dublin. This right of the Dominions to offer individual advice to the King wastaken to an important conclusion in 1928 when he signed the Kellog-Briand Pacton the renunciation of war separately for each of the Dominions; previousmulti-lateral treaties had just been signed once by the King for the wholeBritish Empire. The separate capabilityto conduct independent relations with other foreign countries continued tosolidify to the point that Alan Gotlieb asserted: "By 1931, Canada was infull control of its own treaty-making, which it carried out as an independentmember of the international community".^[90] However, Canada still continued to conductthese relations within her membership in the British Empire. Thus the 1936 treaty on naval disarmamentaccorded the Empire a single quota; but both South Africa and the Irish Freestate refused to ratify this treaty on the grounds that their separateidentities were not bring recognised. The Imperial Conference of 1937 then resolved that "each membertakes part in a multi-lateral treaty as an individual identity, and, in theabsence of express provision in the treaty to the contrary, is in no wayresponsible for the obligations undertaken by any other member".^[91] 

                                              TheDeclaration of War

           Even though each of theDominions was asserting and practising the right to conduct independent (thoughco-operative) foreign policies by the late 1930s, one crucial Imperial tieremained to be severed. Right up untilthe outbreak of the Second World War, it was not certain that the Dominionscould take any independent stance on the declaration of war or neutrality. In this one vital aspect the unity of theBritish Empire lingered on, and it was based for the most part on the doctrineof the indivisible Imperial Crown; it was felt that anything less than theunity of the Empire would mean that the King could be advised to declare war onhimself with respect to another of his territories. It was not at all certain that Britain had lost its unique rightto advise the King on matters of war and peace for the whole Empire.^[92] The consequences of this power wereunderlined by Mackenzie King in a speech to the Commons in 1924 about theTreaty of Lausanne which ended the war with Turkey: "When His Majestydeclared war, Canada was brought into the war as a consequence of thedeclaration, and when the King ratifies the treaty, Canada will be brought outjust as she went into the war by the action of the sovereign without any consultationwith our ministers in that regard".^[93] These views continued to hold sway in bothBritain and Canada until well into the next decade. Kennedy wrote in 1937 that, "in the final test ofsovereignty - that of war - Canada is not a sovereign state ...and it remainsas true in 1937 as it was in 1914 that when the Crown is at war, Canada islegally at war".^[94] In 1938 Berriedale Keith continued to arguethat "issues of war or neutrality still are decided on the final authorityof the British Cabinet".^[95] However, Ollivier has claimed that in 1938the British Secretary of State for the Dominions gave a speech in Toronto inwhich he suggested that Canada could in fact make independent decisions aboutwar and peace.^[96] He may well be mistaken about what wasactually said on that occasion, because both Mackenzie King and his JusticeMinister, Ernest Lapointe, made long speeches to the House of Commons in March1939 in which they strongly stated that Canada had no accepted capacity todeclare war independently of Britain. They did, however, re-affirm the position taken by Canadian governmentssince the Boer War: although Canada's belligerency would be determined byBritish action, the extent of Canada's contribution to the war effort, if anyat all, was a matter to be decided by Canada.^[97]

           In any event, thisquestion was settled later in 1939, following Britain's declaration of waragainst Germany on September 3. BothNew Zealand and Australia assumed that Britain's declaration had put the wholeEmpire at war. Australia's PrimeMinister Menzies stated on the occasion, "It is my melancholy duty toannounce officially that in consequence of Germany's persistence in herinvasion of Poland, Britain has declared war and as a result Australia is atwar also".^[98] Frank Scott claims that, "In Canada,belligerency of September 3 was automatically accepted by most people, andapparently at first by the government..."^[99] However, the Canadian cabinet came underpressure when the United States President left Canada out of the list of belligerentcountries in his declaration of neutrality on September 5.^[100] The Canadian Parliament met on September 7and debated the speech from the throne, in which Parliament was asked toprovide authority for Canada to make every effort to defend itself; but it wasnot framed as an explicit declaration of war. After Parliament approved this motion in the evening of September 9, theCabinet met and cabled a petition to the King that a declaration be made onbehalf of Canada, which was done the next morning. Meanwhile South Africa had made a separate declaration of war onSeptember 6, while the Irish Free State declared its neutrality - a position itmaintained throughout the war. Thepractice around the Empire became more uniform when declarations were madelater against Italy, Rumania, Hungary, Finland, and Japan; in these instancesAustralia joined the other Dominions in securing separate declarations from theKing. 

           These separatedeclarations of war and neutrality were final proof of the complete functionaldivisibility of the Crown. As Scottconcluded in a paper written towards the end of the war, "Today it isfirmly established as a basic constitutional principle that, so far as relatesto Canada, the King is regulated by Canadian law and must act only on theadvice and responsibility of Canadian ministers".^[101] However, the Canadian ministers' ability toadvise the King on this matter was acquired entirely through informal politicalarrangements and not through any legal change. 

                             TheInternational Competence of the Provinces

           The divisibility of theCrown, achieved through the assumption by Canadian ministers of the right toadvise the monarch on Canadian foreign relations, raises importantconstitutional issues for the division of powers within Canada. As the British government allowed anincreasing role for Canadian representatives, the federal government assumedthat it was the only Canadian government competent to direct internationalrelations. Canadian plenipotentiarieswere selected by the federal government, the King advised on their appointmentby Canadian ministers, and when formal ratification of Canadian-negotiatedtreaties was required, this was performed by the King on the advice of thefederal ministers. However, ever sincethese roles were assumed by the federal government, there has been a sporadicbut recurring debate as to whether the provincial governments also have a rightto conduct their own relations with foreign states. The argument in favour of a provincial competence stems from thenotion that the provinces are essentially sovereign within their legislativespheres and that they have the right to advise the Crown with respect to anyaffairs relating to the conduct of their governmental powers. 

           The federal governmenthad initially tried to assume complete control of treaty-making andimplementation, based on s.132 of the 1867 Constitution Act; this sectionprovides Parliament with the power to enact legislation to give effect toEmpire treaties, regardless of whether the subject matter would normally bedealt with exclusively by the provinces. The Judicial Committee heard three cases in the 1930s which have formedthe legal basis for the constitutional division of treaty-implementing powers;the first two cases settled that Parliament could implement treaties on radiobroadcasting^[102]and aviation.^[103] However, the Judicial Committee laterdistinguished these cases as not finally settling the general topic ofimplementing treaties which were not truly Empire Treaties. 

           In the 1937 LabourConventions case, Lord Atkin declared that the legislature which couldimplement a treaty was the one which would normally deal with the subjectmatter domestically: "the Dominion cannot, merely by making promises toforeign countries, clothe itself with legislative authority inconsistent withthe constitution which gave it birth".^[104] Thus, if the treaty matter was normally asubject dealt with provincially, then only provincial legislatures could enactlaws to implement the treaty.

           However, what is ofinterest here is which level of government has the power to enter into treatieswith foreign governments. In the LabourConventions case, Atkin clearly stated that he was not going to deal withtreaty-making powers.^[105] However, he referred approvingly in anobiter dictum^[106]to the opinion of Duff C.J.C in Supreme Court's earlier decision on this case,in which Duff laid down that only the federal government had any internationalcompetence. Duff had declared that thenational government alone had acquired the power to enter into internationalagreements; in reaching this conclusion he relied heavily upon the politicalpractices which had already become evident:

As a rule, the crystallization ofconstitutional usage into a rule of constitutional law to which the courts willgive effect is a slow process extending over a long period of time; but theGreat War accelerated the pace of development in the region with which we areconcerned, the practice, that is to say, under which Great Britain and theDominions enter into agreements with foreign countries in the form ofagreements between governments and of a still more informal character, must berecognised by the Courts as having the force of law.^[107]

Duff then went on to add:

As regards all such international agreements,it is a necessary consequence of the respective positions of the Dominionexecutive and the provincial executives that this authority resides in theParliament of Canada. The LieutenantGovernors represent the Crown for certain purposes. But, in no respect does the Lieutenant Governor of a provincerepresent the Crown in respect of relations with foreign governments.^[108]

The opinions of two other judges also stated that the federal executivealone had acquired the right to conduct foreign relations;^[109] thus aclear majority of the Canadian Supreme court held that the federal governmenthad acquired the exclusive power of treaty-making through the politicalpractices which had arisen. For all ofthese judges, the established pattern whereby foreign states had negotiatedonly with the federal government was a crucial factor; but Duff also reliedupon the idea that executive powers should match an exclusive federalcompetence to enact treaty legislation - a power which the Privy Council deniedon appeal.

            However, the Ontario government argued beforethe Judicial Committee that provincial governments have the power to advise theCrown, as represented by their Lieutenant Governors to conclude agreements withforeign governments:

The Province has the right to advise the Crownin matters where legislative powers apply. Ontario has the right to enter into an agreement with another part ofthe British Empire or with a foreign state. So far as the legislative and executive authority are concerned theGovernor General and the Lieutenant Governors of the Provinces are equal instatus.^[110]

Several Quebec governments have also argued since then that they possessthe competence to conduct foreign relations.^[111]      Theseclaims for provincial competence to conduct foreign relations relating tomatters within their legislative jurisdictions appear to be founded upon solidlegal grounds. The provincial argumentsrely on the fact that original treaty-making powers for Canada were vested bycommon law in the Imperial Crown and directed in practice by the Britishgovernment. And, according to theJudicial Committee's judgment inThe Liquidators of the Maritime Bank v. theReceiver General of New Brunswick, a Lieutenant Governor, "whenappointed, is as much the representative of Her Majesty for all purposes ofprovincial government as the Governor General is for all purposes of DominionGovernment".^[112] Thus Lieutenant Governors should be capableof receiving any prerogative power relevant to provincial government whichoriginally belonged to the Imperial Crown. Furthermore, the Judicial Committee has decided that the distribution ofexecutive powers in Canada must follow the distribution of legislative powers;^[113]and, as already noted, treaty-implementing powers were held to be distributedaccording to the subject matter of the treaty. And in 1971 the English Court of Appeal dramatically underlined theposition of the provinces, although not without exaggeration: 

The British North America Act 1867 gave Canadaa federal constitution. Under it thepowers of government were divided between the Dominion government and theprovincial governments. Some of thosepowers were vested in the Dominion government. The rest remained with the provincial governments. Each provincial government, within its ownsphere, retained its independence and autonomy, directly under the Crown. The Crown is the sovereign in New Brunswickfor provincial powers, just as it is sovereign in Canada for Dominion powers:seeMaritime Bank of Canada (Liquidators) v. Receiver-General of NewBrunswick. It follows that theProvince of New Brunswick is a sovereign state in its own right, and entitled,if it so wishes, to claim sovereign immunity.^[114]

Even without this eccentric conclusion of Lord Denning, the other casesclearly support the contention that a provincial executive does possess thelegal powers, formerly possessed by the British Crown alone, to make treatiesdealing with subjects normally within its exclusive legislative jurisdiction.

           However, thepreponderance of published opinion overwhelmingly supports the federalgovernment's claim to exclusive jurisdiction to make treaties. Essentially, the political arguments aremade that a state needs a single international personality, and that thepractice has always been for the federal government to assert overall directionof all dealings between foreign and Canadian governments; in addition, there isthe fear that an international competence for the provinces would unleashcentrifugal forces of separatism. Several legal arguments have also been forwarded to justify exclusivetreaty-making powers for the federal government. It is said that legislative power to deal with treaty-making should properly belong tothe federal level of government through the peace, order, and good governmentpowers, because treaty-making does not fall within the enumerated powers of theprovinces of s.92 of the Constitution Act, 1867. However, it is not clear that treaty-making can always beseparated as a power distinct from treaty-implementation; wherelegislative jurisdiction exists to enact laws on a subject, full executivepowers (which treaty-making has always been in anglo-canadian constitutionallaw) are assumed to reside in that level of government with respect to thatsubject matter. It is difficult toestablish conclusively that treaty-making is in fact an independent subjectmatter that can be separated from general powers given to the provinces. 

           Another legal argumentproposed by proponents of an exclusive federal power is that the 1947 LettersPatent empowered the Governor General to exercise all powers belonging to theMonarch "in respect of Canada". Hogg argues, "This language undoubtedly delegates to the federalgovernment of Canada the power to enter into treaties binding Canada".^[115] This argument seems most unsatisfactory,however, because its logical conclusion is that the federal government couldlegally exercise any prerogative power vested in the Queen with respect to theprovinces; the broad language of the Letters Patent would appear to include thedelegation of every single prerogative power already existing with respect toprovincial as well as federal government.

           It is unlikely that theSupreme Court would ever support such a broad interpretation of the powersexercisable by the federal cabinet, as it declared in a 1987 case thatexecutive powers "must be adapted to conform to constitutionalimperatives".^[116] Any conclusion that the federal governmentcould exercise prerogative powers belonging to the provincial Crown would bemost destructive to the fundamental principle of federalism embedded in theCanadian constitution. The federalgovernment cannot simply acquire a prerogative power which belongs to the Crownin right of a province simply by advising the Queen to issue Letters Patent.

           Moreover, this argumentfor exclusive federal jurisdiction also relies upon the purely conventionalbarriers against provincial governments directly advising either the Queen orthe Governor General. The LettersPatent actually state in Article II that the powers delegated to the GovernorGeneral are to be exercised "with the advice of Our Privy Council forCanada or of any members thereof individually, as the caserequires...". Since John Buchananis a member of the Canadian Privy Council he could legally advise the GovernorGeneral and lead Nova Scotia in an independent foreign policy, if Hogg'sargument based on the Letters Patent were valid.^[117] 

           Perhaps the strongestlegal ground cited for an exclusive federal right to conclude treaties is foundin s.3 of the Statute of Westminster which gives Parliament, but not provinciallegislatures, the power to legislate extra-territorially. However, this power was conferred to extendParliament's power to deal with Canadian subjects abroad, such as theprovisions of the National Defence Act which stipulate that the whole ofCanadian military law applies to members of the Forces outside thecountry. This is somewhat differentfrom the power of making agreements which have legal effects outside theterritorial limits. Such a power tomake legal agreements with extra-territorial partners is not exclusive to thefederal government, since provincial governments are constantly making bindingagreements (with legal effects) with each other, the federal government and itsagencies, as well as out-of-province and overseas corporations.^[118] It is this ability to reach legal agreementswith extra-territorial parties that appears the most applicable for the conductof foreign relations. 

           However, a fundamentalflaw in any argument based upon the possession of extra-territorial legislativepower is that it completely ignores the fact that the federal government'streaty-making powers had been recognised and exercised for several years priorto the passage of the Statute of Westminster. Furthermore, s.7(3) of the Statute also stipulated that the new powersconferred upon Parliament by the Statute "shall be restricted to matterswithin the competence of the Parliament of Canada..."; thusextraterritoriality was not a new head of power, but a territorial extension ofthe applicability of the laws Parliament was already competent to pass.

           While there are solidlegal grounds for the exercise of treaty-making powers by the federalgovernment, the evidence is far too unsettled to support anexclusivelegal power. Indeed there are stronglegal arguments that the provincial executives are competent to conduct foreignrelations. The exclusive exercise ofthis power by the national government has not been founded upon law but upondomestic conventions and the external practice of other foreign countries. There is simply no bar in international lawagainst treaty-making powers for the constituent states of a federal country.^[119] The federal government has so far beensuccessful in dissuading other states from dealing with provincial governmentsas if they had separate international identities, but successive Frenchgovernments have evidenced an unrealized willingness to treat Quebec otherwise. The constitutional convention barringcomplete international competence to the provinces is an important rule, whoseabsence might seriously alter the nature of the Canadian federal system. But it is essential to recognise that theprovinces have been constrained on this matter by constitutional convention andthe practice of foreign states, rather than by law.   

                                                 TheCommonwealth

           The acquisition ofindependence by Canada and the other Dominions corresponded with the evolutionof the British Empire into the Commonwealth. Although the British Empire contained several self-governing colonies,it was a single juristic unit over whom the British institutions of governmentwere supreme, and which functioned in international law as a single entity. Even as the Dominions gained their initialindependence of action in the 1920s and 1930s, the governments of Britain andmost of the Dominions adhered to theinter se doctrine; this principleheld that the relations between these governments were constitutional relationswithin the Empire and not international relations.^[120] As the Dominions acquired first greaterautonomy and then independence from Britain, the Empire evolved into theCommonwealth, with a voluntary and equal membership of independent states. The disintegration of the Empire and theformation of the Commonwealth was achieved largely through the informaldevelopments which have been reviewed in the discussions above about Canadianindependence. There was no legalextinction of the Empire, and it is difficult to point with certainty to thecreation of the Commonwealth.

           In an effort to tracethe evolution from Empire to Commonwealth several constitutional authoritieshave looked to the evolution of the terms used to describe meetings of Britishministers and representatives from the overseas territories.^[121] The first meeting held between the Britishgovernment and the first ministers from colonies which exercised responsiblegovernment was held in 1887 and called a Colonial Conference. These meetings were held with someregularity, and in 1907 it was agreed that in the future they would be calledImperial Conferences, consisting of Britain and the self-governing`Dominions'. Prior to the disappearanceof Imperial Conferences, however, increasing currency was given to the term`British Commonwealth', which consisted of Britain and the Dominions as a groupwithin the Empire. The 1926 ImperialConference approved a report containing the classic formulation of therelations between Britain and the self-governing Dominions: "They areautonomous Communities within the British Empire, equal in status, in no waysubordinate to one another in any aspect of their domestic or external affairs,though united by a common allegiance to the Crown, and freely associated asmembers of the British Commonwealth of Nations". At least until the outbreak of World War Two, the BritishCommonwealth was still assumed to be an informal association within the Empire;the last formal meeting of British and Dominion Prime Ministers to be stillcalled an Imperial Conference was held in 1937. The final assertions of independence brought by the declarationsof war in the next few years precluded any re-assertion of bonds of Empire betweenBritain and the Dominions in the post-war period; thus the informal meetingsheld in 1944 and 1946 between British and Dominion Prime Ministers were nottermed Imperial Conferences. The finalindependence of India in 1947, and its subsequent assumption of a republicanform of government, precipitated a meeting of British and Dominion PrimeMinisters in 1949, which Sir William Dale has called the foundation of themodern Commonwealth.^[122] After noting India's desire to become arepublic, the meeting concluded:

The Government of India have, however, declaredand affirmed India's desire to continue her full membership of the Commonwealthof Nations and her acceptance of the King as the symbol of the free associationof its independent member nations and as such the Head of the Commonwealth. Accordingly the Untied Kingdom, Canada,Australia, New Zealand, South Africa, India, Pakistan and Ceylon, herebydeclare that they remain united as free and equal members of the Commonwealthof Nations, freely co-operating in the pursuit of peace, liberty and progress.

With this declaration, the British Commonwealth became the Commonwealthof Nations, a term which was soon superseded by simply `the Commonwealth'. 

           This 1949 declarationalso created a new position for the British monarch as Head of the Commonwealth. But a Minute of this conference alsorecorded that "the meeting agreed that it should be placed on record thatthe designation of the King as Head of the Commonwealth does not denote anychange in the constitutional relations existing between the members of theCommonwealth, and, in particular, does not imply that the King discharges anyconstitutional functions by virtue of the Headship".^[123] Nevertheless, the Queen has come to acquiresome symbolically-important roles as Head of the Commonwealth. Her formal functions include opening theCommonwealth Heads of Government meetings, and giving her Christmas Daybroadcast to the Commonwealth. She iskept informed of political developments in Commonwealth countries throughaudiences with the heads of government at those meetings, or when they are inLondon. Furthermore, she is suppliedwith much information by the Commonwealth Secretariat in London. This body was created in 1965 by the mutualagreement of all Commonwealth members, essentially to aid inter-governmentalco-operation. The Agreement creatingthe Secretariat warned that it should not "arrogate to itself executivefunctions".^[124] The Secretary General, who heads it, holdsinfrequent audiences with the Queen, but he and his Deputies do have manyon-going discussions with the Queen's Private Secretary. Nevertheless, the purpose of these meetingsis only to keep the Queen informed, and any attempt, let alone right, to offerformal advice to the Queen is strenuously denied.^[125] The possibility of the Queen receivingadvice from this quarter was raised by the events following the first coup inFiji in 1986; the deposed Prime Minister met with the Secretary General afterbeing refused a direct audience with the Queen and turning down an offer of a meetingwith her Private Secretary instead. When it comes to the Queen's role as Head of State of any Commonwealthcountry, it would be most improper indeed for anyone other than the PrimeMinister or Governor General of that state to try to offer binding advice tothe Queen.^[126] 

           The Queen mayoccasionally play an informal, independent role in matters which concern theCommonwealth as a whole. In 1979 shewas said to have made a substantial impression upon several heads of governmentat the Commonwealth meeting convened to deal with the Zimbabwe-Rhodesia issue;the tone of her meetings with the heads of state before the formal start of theconference, and at the opening dinner, reportedly helped foster the necessarywill and conciliation. Her traditionalChristmas Day broadcasts to the Commonwealth created a minor controversy whenEnoch Powell strongly criticized the one made in 1983 and demanded that theBritish government shoulder responsibility for the matter. However, this episode underlined the factthat the British government has no right to advise the Queen on her activitiesperformed as Head of the Commonwealth. Lord Blake wrote to theTimes and formulated the conventionalrules surrounding the offering of advice to the Queen on these matters in the followingterms:

1. TheQueen's Christmas broadcast and Commonwealth Day message in March are the onlyoccasions when she speaks without ministerial advice and responsibility. This has always been the convention.

2. Allother speeches which she makes in the UK are made on the responsibility of UKministers.

3. Allspeeches which she makes in a Commonwealth monarchy, for example Canada orAustralia, are made on the advice and responsibility of the prime minister ofthe country concerned.

4. Allspeeches which she makes when visiting a Commonwealth republic, e.g. recentlyKenya, Bangladesh and India, are made on the advice and responsibility of UKministers. This convention is fullyunderstood by the presidents and governments of those republics.^[127]

           There are, however, anumber of potential conflicts between the Queen's roles she plays as the Headof State of several Commonwealth countries and as Head of theCommonwealth. For instance, oneCommonwealth government over whom she is Queen may wish her make a certainspeech in another country she is visiting which would conflict with thepolicies of either Britain, the host country, or another Commonwealthcountry. There is no particular reasonwhy the Queen should travel in Commonwealth republics or non-Commonwealthcountries only as the Queen of Britain under British ministerial advice, andnot as the Queen of one of the other Commonwealth countries she heads. The controversy which erupted in Britain in1986, over an alleged disagreement between the Queen and Prime MinisterThatcher over policies towards South Africa, also illustrated that the Queenmight be put in a difficult position if the policies she is advised to sanctioncould severely damage the Commonwealth association. However, the public discussion of this particular issue clearlydemonstrated that the consensus of opinion lies with the requirement that theQueen's constitutional obligation to act on ministerial advice is supreme overher customary role as Head of the Commonwealth; naturally she has the right toexpress her reservations and misgivings before acting.^[128]  Unfortunately, there is little guidance forthe Queen should she be given conflicting advice by her governments in two ormore different states.

                                                       Conclusions

           Even though Canada onlygained control of its own constitutional amendment in 1982 and the very lastlegal traces of its colonial past have yet to be formally extinguished, it isquite evident that Canada has been a fully independent state for a number ofdecades. The persistence of thesevestiges of Canada's former status illustrate how much Canada owes itsindependence from Britain to political developments, rather than legal changesin the formal constitution. The legalamendments made to the Canadian constitution were important and necessary tothe acquisition of sovereign independence, but these changes were notsufficient to convey independence on their own. Britain's legislative supremacy over Canada was greatlyrestrained by convention long before the passage of either the Statute ofWestminster or the Canada Act. AndCanada's complete control over the Monarch's prerogative powers was gainedincrementally through the evolution of political practices which replaced theMonarch's British advisers with Canadian ministers. This fundamental transfer of executive power, which brought withit complete independence in foreign relations, was achieved almost entirely byconstitutional convention. Anunderstanding of Canada's acquisition of full independence continues to havecritical bearing on modern constitutional debates, especially with respect tothe international competence of provincial governments. What international personality the provinceshave the legal power to assert is not simply a matter of international politicalpractice; it is a matter of domestic constitutional law. In any attempt to establish what the law ofthe Canadian constitution is on this issue, one must appreciate that thetransfer of the executive powers currently exercised by the federal governmentwas brought about almost entirely by political practice.

                                                           Notes