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.