Is September 19th a public holiday in New Brunswick to mourn the passing of the Queen?

Is September 19 a Public Holiday
 in New Brunswick?

On September 13, 2022 the Prime Minister of Canada announced that September 19 will be a public holiday to mourn the passing of her late majesty Queen Elizabeth II. 

"We have ... chosen to move forward with a federal holiday on Monday [Sept. 19]," Trudeau said in New Brunswick, where he is attending a Liberal caucus retreat. 

"We will be working with the provinces and the territories to try and see that we're aligned on this. There are still a few details to be worked out, but declaring an opportunity for Canadians to mourn on Monday is going to be important."

The federal Interpretation Act states that a holiday includes "any day appointed by proclamation to be observed as a day of general prayer or mourning or day of public rejoicing or thanksgiving;"

Similarly the Bills of Exchange Act   for the purposes of bill payments states that under subsection 42(a)(iii):

• (iii) any day appointed by proclamation to be observed as a public holiday, or as a day of general prayer or mourning or day of public rejoicing or thanksgiving, throughout Canada, and

Of note is the Canada Labour Code does not list a day by proclamation by the Governor General as a paid holiday.

The Canada Gazette published an extra edition on September 13, 2022 issuing the following proclamation by the Governor General requesting "that the people of Canada set aside September 19, 2022 as the day on which they honour the memory of Her late Majesty Queen Elizabeth the Second"

This proclamation is of interest as it represents a marked departure from prior proclamations declaring the death of the Monarch as a day of general mourning.

For example, after the passing of George VI, the federal proclamation the Administrator of the Government of Canada uses the operative language of "appoint and set apart Friday the fifteenth instant as a Public Holiday to be observed as a Day of General Mourning by all persons throughout Canada." 

The deaths of Queen Victoria in 1901, Edward VII and George V use similar language of a "Public Holiday".  

There is a question as to whether the proclamation is sufficient to trigger a Day of General mourning. The Prime Minister did declare a public holiday but  there is a distinction between a statutory holiday and a holiday by proclamation? If in fact despite using a different form and language, in law this proclamation triggers a public holiday then it will have an impact on many provinces where many provincial Legislatures automatically recognize a day of general mourning 

New Brunswick Holidays

New Brunswick's Interpretation Act declares that a holiday includes a "Proclamation of the Governor-General or of the Lieutenant-Governor as a general holiday within the Province". This means that either the Governor General acting on the advice of the federal cabinet or the Lieutenant Governor acting on the advice of their provincial cabinet can declare a day to be a holiday.

By this logic any proclamation by the Governor General declaring a holiday in New Brunswick will automatically become a provincial holiday without any involvement from the Provincial Cabinet. This is specifically because the New Brunswick Legislature has chosen to do so. To repeat even if the Governor General has not declared a general day of mourning, the provincial government has the legal authority to do so if it wishes. In past occurrence, the provincial cabinet may have issued a proclamation as in 1910 (above) but this did not displace the federal proclamation of a holiday.

This definition of a holiday has implications for example on when provincial courts are open. Of importance for most New Brunswickers is that under the Days of Rest Act, a day proclaimed by the Governor General or the Lieutenant Governor is automatically a prescribed day of rest.

"(k) any day appointed by any Statute in force in the Province or by Proclamation of the Governor General or Lieutenant-Governor as a general holiday within the Province;"

This means that with certain significant exceptions, no person shall conduct retail business or admit members of the public on a prescribed day of rest.

4(2)Subject to subsections (3) and (4), no person shall, on a prescribed day of rest,

(a) carry on retail business, or

(b) admit the public to any premises where a retail business is carried on.

Individuals who violate this section commit a category C provincial offence where they are liable to  a fine of not less than $140 and not more than $1,100.

However a proclaimed holiday by the Governor General or the Lieutenant Governor does not result in an automatic paid public holiday under the Employment Standards Act. In this manner a holiday in relation to mourning the passing of the Queen is similar to Thanksgiving or Boxing Day in New Brunswick. 

Discussion

Other New Brunswick and other provinces through their press releases seem to imply that it is in fact a National Day of Mourning and a Public Holiday:

British Columbia: Our government will follow the lead of the federal government and join with other provinces in observing the national day of mourning to mark the Queen’s funeral.

“The national holiday will be observed Monday, Sept. 19 by federal employees. We have advised provincial public-sector employers to honour this day in recognition of the obligations around federal holidays in the vast majority of provincial collective agreements.

In New Brunswick, the provincial press release also seems to interpret September 19 as a National Day of Mourning by federal proclamation: 

 

FREDERICTON (GNB) – Government offices and schools in New Brunswick will be closed on Monday, Sept. 19, as part of the National Day of Mourning for the passing of the Queen.

This one-time provincial and national holiday is intended to honour the Queen and pay respect to her life of service to Canada and to the Commonwealth of Nations on the day of her funeral.

The day will be treated as any other holiday for management and non-union employees in Parts I, II and III of the provincial public service. This includes central government departments and agencies, as well as the anglophone and francophone public school systems. Collective agreement terms and conditions for holidays will apply to unionized employees in Parts I, II and III. While government offices and public schools will be closed, this holiday will be optional for private sector businesses and employers.

The issue with this press release is that under the Days of Rest Act, the holiday isn't optional for the private sector, it would be a prescribed day of rest.  It would require a legislative amendment for the Government to not declare September 19th a prescribed day of rest. Further, it would also require a legislative amendment to make September 19th a paid holiday under the Employment Standards Act

So is September 19th a provincial holiday that is binding on the private sector in New Brunswick? It would appear so  although this may be accidental but the press release by government does refer to a National Day of Mourning. The wording of the federal proclamation does cause significant confusion. The federal government absent a legislative amendment does not have the authority to declare September 19th a (paid) public holiday for federally regulated workers in the private sector per the Canada Labour Code. However, New Brunswick has chosen itself to automatically cause a federal proclamation of a holiday to be provincial holiday without any involvement of the provincial cabinet.

Granted this situation appears to be inadvertent so employees looking to rely upon September 19 as a provincial holiday would be well advised to check with their employer first. The requirement for holidays represent the minimum that is legally required. An individual's particular employer may chose to offer a paid holiday on September 19 if they choose to do so or a unionized employee's collective agreement may have a specific criteria for proclaimed holidays.

The Demise of the Crown in New Brunswick

On September 8th, 2022, Canada's Queen Elizabeth II passed away ending a 70 year reign. Unlike the passing of a Lieutenant Governor, the passing of a Sovereign has very little impact on the Constitution of New Brunswick due to several laws which provide for an automatic transition in law.

Most visibility are the changes of the name of New Brunswick's Superior Courts from the Court of Queen's Bench to King's Bench, Queen's Counsel now becomes King's Counsel and the official printer of Government is called the King's printer despite its act being named Queen's Printer.

No dissolution of the New Brunswick Legislative Assembly 

At Common Law, the death of a Monarch, or more formally, the demise of the Crown results in the automatic dissolution of a Legislative Assembly.

This form of dissolution occurred as the result of the death of King George III. Although the King passed in January 1820, the Assembly was only dissolved in May. Difficulties in transatlantic communication at the time resulted in the odd situation where that the Spring session was convened in the name of the departed monarch as the Assembly was only dissolved on May 15, 1820

The Assembly was also dissolved in late 1830 after the death of George IV. The final dissolution due to the demise of the Crown occurred in August 1837 upon the death of William IV in June. Transatlantic communication delays resulted in the Assembly sitting again in the name of the departed King. Of note to constitutional scholars is this summer session of 1837 resulted in the Crown surrendering control of the civil list to the Assembly which is an important development of representative government in pre Confederation New Brunswick.

In 1842 the New Brunswick Legislature passed the first law stating that the duration of a Legislative Assembly would remain unaffected by the demise of the Crown. Although given Queen Victoria's long reign, this provision was only relied upon when the Queen passed in 1901. The current Legislative Assembly Act continues this law under subsection  3(1) stating that the Legislative Assembly shall not be affected by the demise of the Crown. 

This issue of automatic dissolution is interesting from a modern context as it would trigger an unscheduled election without any involvement by political actors. It is easy to imagine how disruptive this would be to Legislative Proceedings and Government.  In 2021 Quebec's Legislature quickly passed a law to state that its National Assembly would not be affected by the demise of the Crown after the PQ government of Rene Levesque removed this reference to the Monarchy in the 1980s unaware of its legal significance.

Queen's Counsel or King's Counsel? The automatic renaming of various titles, offices and laws.

The death of the Queen means that Prince Charles automatically becomes King Charles III. This change from a female to male Sovereign requires the renaming of many aspects of New Brunswick's Constitutional structure. Most evident is the Court of Queen's Bench now becoming the Court of King's Bench or the newly named King's Printer. Many members of the legal community have inquiries as to the status of the designation of Queen's Counsel pursuant to the Queen's Counsel and Precedence Act and whether they retain the use of Queen's Counsel. The answer is interesting as there will be a departure of what is true in law versus what is true in reality.  Section 37 of the Interpretation Act  helpfully illustrates that every reference to the words "Queen" or "Her Majesty" when forming the name, or title of any court or division, or of any office, officer, or other functionary, appear said words shall, when the reigning sovereign is a King, be read and construed as the corresponding form of the words "King" and "His Majesty" respectively. 

What this means is that although words the letters patent of a lawyer appointed as Queen's Counsel or the words of the Judicature Act stating the Superior Court of New Brunswick is the Court of Queen's Bench, in either case, those actual words, through legal magic, are to be read as being King's Counsel or the Court of King's Bench respectively. Future appointments under the Queen's Counsel and Precedence Act will now be King's Counsel and any lawyer appointed as Queen's Counsel is now automatically a King's Counsel despite what their letter patent actually says.

This provision of the Interpretation Act was passed in 1952 to address the death of George VI and has remained relatively unchanged.

What is important to note is that although s.37 of the Interpretation Act is the current text that is relied upon for its obvious clarity when there is a change from a King to a Queen or vice versa, it is not the sole legal authority. For example the change between Queen's Counsel and King's Counsel in 1901 preceded s.37.  In reviewing the Consolidated Statutes of New Brunswick 1903, it references back to the prior consolidation without amendment.  This change is likely do the passing of an Act Respecting Public Officers on the Demise of the Crown 1901  and other sections of the Interpretation Act

The Demise of the Crown Act

When Queen Victoria died in 1901, it created a particular legal problem.  At Common Law public servants, and other individuals who held employment in the New Brunswick Government or exercised a profession by virtue of a Commission held such employment under the name of the specific monarch. The death of the monarch would result in their employment or commission being automatically terminated and a new commission to continue employment would have to be issued. New Brunswick's Attorney General William Pugsley noted that an immediate termination of employment was saved due to several imperial statutes which were passed during the reigns of Ann, George III and William IV. In this manner, Pugsley introduced an  Respecting Public Officers on the Demise of the Crown 1901 to allow for the continuance of officials in office.

  Obviously, in 1901 New Brunswick's public service was significantly larger than in 1837  In this case the Legislature by passing the act deemed that the death of Queen Victoria would not impact the employment. Further any actions taking between the death of the Queen and the passing of the remedial statute would be valid. Of interest is that the law still required individuals to take an oath of allegiance to King Edward VII. However the failure to take the oath would not invalidate any actions but the individual would be fined 5 dollars. The funds collected would then be sent to provide assistance to the poor of the parish in which the individual resides.

In this case the legal continuity of appointment for a Queen's Counsel to King's Counsel in 1901 would have relied on this provision. 

When looking at the modern 2009 Demise of the Crown Act, it is much more straightforward the demise of the Crown has no impact on the holding of any office under Crown and unlike the 1901 statute no longer requires the taking of an oath of allegiance. Of historical note, the obligation but not the penalty to take an oath of allegiance continued until the original statute's repeal in 2009.

The definition of terms under the Interpretation Act

Section 38 of the Interpretation Act defines the following terms as interchangeable:

“Her Majesty” , “His Majesty” , “the Queen” , “the King” or “the Crown” means the Sovereign of the United Kingdom, Canada and Her other Realms and Territories, and Head of the Commonwealth;(Sa Majesté), (la Reine), (le Roi), ou (la Couronne)

What this means is that any use of the words the Queen or Her Majesty in an Act or Regulation, is automatically deemed to refer to the Sovereign. Similarly, the use of His Majesty and the King also refer to the Sovereign. This has the practical effect of these terms is that documents, especially legal documents referring to the Queen are not invalidated as they should now be referring to the King in both instances they refer to the same thing. Prior to the death of Queen Victoria, New Brunswick's Interpretation Act was referred to as the Interpretation of Terms. Explanations and General Provisions 

Section 1(22) defined "Her Majesty" or "The Queen" as including Her Heirs and Successors. This creates a legal continuity where any act referring to Queen Victoria automatically refers to King Edward VII.

This was amended at some point between 1901 to 1903 under the new Interpretation Act to refer to the King and his heirs and successors.

This creates an interesting discussion point where both s.37 and s.38 essentially refer to the same legal concept and operate concurrently; however, s.37 is more specific in certain legal contexts. The definition of Queen's Counsel and King's Counsel can rely on both with an additional reference to the Demise of the Crown Act.

When do statutes become updated?

Because the Interpretation Act uses legal magic to declare that the word Queen actually means King as they both mean the Sovereign, it is not necessary in law to immediately update all Acts and Regulations. In a legal text, the reference to a male or female Monarch is essentially stylistic.  The King's Printer (formerly the Queen's Printer) will slowly make changes to legal texts when the Acts or Regulations are consolidated. Section 6 of the Queen's Printer Act allows for the King's Printer to make changes to the "form and style" of any Act or regulation without changing the substance. Obviously a good start would be to change the enabling statute for the King's Printer. This is what occurred both in the consolidations of 1903 and in 1952 after a change from a Queen to a King and King to a Queen.

The Legislature

All new bills introduced in the Legislative Assembly will now contain references to His Majesty. This is a legal requirement under section 2 of the Interpretation Act:

all Acts shall be enacted in the name of Her Majesty, and the enacting clause may be in the form following: “Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Many New Brunswickers may be unaware that bills also contain a reference to the year of the reign of the Sovereign. This is referred to as the Regnal Year and coincides when the Monarch succeeds to the Throne. Because the 1st session of the 60th Legislature has not been prorogued, it has continued for 3 Regnal Years of Queen Elizabeth. Any Bills introduced going forward will now have the 1st Regnal year of Charles III.

This will also impact the Chapters of the Annual Statutes of New Brunswick where any acts passed in 2022 in the fall will be physically separate from those Acts passed under the Queen's reign.

On June 10, 2022, the Lieutenant Governor of New Brunswick verbally granted Royal Assent to bill 101 using the form "it is the Queen's wish. La reine le veut". It will be quite some time before those words are said again in the Legislative Assembly. Going forward the Lieutenant Governor will use the words "it is the King's wish. Le roi le veut."

Conclusion

Most substantive changes related to the demise of the Crown happen automatically and today any potential negative legal impacts related to the death of the Sovereign are minimal. This means that a lot of the process in relation to the passing of Queen Elizabeth are commemorative or symbolic in nature. These are still important and confer meaning. We will learn in the coming days if the Governor General will proclaim a public holiday for a day to be observed for general mourning in relation to the National Ceremony of Mourning for Her Late Majesty. If such a proclamation occurs, it will automatically be a provincial holiday by virtue of the Interpretation Act. I cannot think of a more fitting intersection between ceremony and law.