Queen’s Counsel Appointments

“Her Majesty’s Counsel, learned in the law, for the Province of Alberta”

The designation of Queen’s Counsel was bestowed recently on some members of the Alberta Bar. Though the tradition of recognizing outstanding expertise, work and contributions in a lawyer’s public life has ceased in some Canadian jurisdictions, being appointed a QC is worthy of congratulations.

The legislative authority for Queen’s Counsel appointments exists in Alberta, British Columbia, New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, and Saskatchewan

Quebec stopped making Queen’s Counsel appointments in 1976, and Ontario stopped the practice in 1985. The federal government discontinued federal Queen’s Counsel appointments in 1993.

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Comments

  1. It is far from clear why the government should have a special award of merit for lawyers, when no other trade or occupation stands to get one.

    It is certainly the case that at least some of the people who get a QC deserve recognition for their talent or service. Most provinces have some general purpose award, similar to the Order of Canada, that everyone (including lawyers) is eligible for. Since Queen’s Counsel have no special relationship with the Crown, any more (or ever, in Canada) – except that in some systems they earned their QC by currying favour with the government of the day – it makes little sense to perpetuate the ‘honour’ of a lawyers-only designation.

    Can it be said that the system for handing out QCs in all the provinces that have them (less than 50% of Canadian lawyers) are now free of any allegation of political influence in who gets them?

  2. My greatest disappointment as a lawyer was not being named a Q.C. in 1985.

    Following the criteria of the previous governments, I had all the right credentials – I was employed by a corporation, I did not appear in court, I had been called to the Bar for 10 years, and now had friends in government.

    I was clearly as undeserving as many other recipients, but had the bad luck to have friends in a government that sought to end what had become a meaningless “honour”.

  3. The continuing use of QC designations in jurisdictions that no longer provide for this honorific has always troubled me a little. The QC designation may provide for qualitative comparisons as between lawyers, or be perceived as extending some expertise or special influence in particular matters, both of which are usually frowned upon by legal professional bodies. I have always thought that, on this basis, the continuing use of such honorifics by senior members of the profession should be discontinued as a matter of both collegiality and professionalism.

  4. Ontario twice introduced legislation in the 1980s, under the title (if I recall correctly) of the Barristers Amendment Act, to ban the use of QC in the practice of law. This was motivated by a desire not to give those with QCs an unfair advantage over those who were just as meritorious but not longer able to get them. However, the government did not proceed with the bills and they were not passed.

    After all this time, I doubt that having a QC in Ontario gives a competitive advantage any more. These days an Ontario lawyer’s QC is just a label meaning ‘old fart’. Well, some got federal QCs up to 1993 when the feds stopped appointing them, so it might mean ‘fairly old fart’.

  5. In this year of Her Majesty’s Diamond Jubilee, I hope (after nearly four years) I will be able to have the Queen’s Counsel Act [BSBC 1996] Chapter 393 amended to include a “revocation clause for cause” and establish legal precedent in a Royally Unpalatable: Wrong Without A Remedy. On March 25, 2011 “we the people of Canada” was read in the House of Commons petitioning the House of Commons (reference number 403-1673) to act to protect and defend Her Majesty’s Letters Patent from misuse and abuse by:
    a. any provincial and/or territiorial government.
    b. any office of the Attorney General, and
    c. any Law Society in the provinces and/or territories who fails in their duty to disclose a lawyer’s professional records and status to the Attorney General prior to granting a Queen’s Counsel appointment.

    How can a lawyer, with a history of professional misconduct, while under investigation by the Law Society be appointed to Her Majesty’s Counsel?
    How can a Law Society fail to disclose this information to the AG prior to the appointment?
    How can the AG (with full knowledge of the events) decide not to act to amend the flawed legislation to ensure a remedy exists to correct the problem?
    How can two Governor Generals of Canada (The Queen’s Representatives)ignore how Quite Corrupt the process and procedures are that allow unfit lawyers to receive these historical and prestigious appoints using Her Majesty’s Royal Prerogative in the form of Her Letters Patent without any accountability?
    Is it legally possible for a B.C. lawyer Q.C., convicted of a crime, to retain his QC will serving out his sentence?
    How can the public interest be served when the public is being deceived by those with the power and duty to act on this matter?

    In this mini-constitutional crisis, the Monarchy’s Letters Patent can and must be defended on rational grounds, in support of common law and our chater to prevent deception, misrepresentation and/or falsity against the public at large.

    If the integrity of Her Majesty’s Letters Patent is not considered important enough to be protected in British Columbia, then the government should cease and desist making Q.C. appointments forever.

    After 60 years of service, Her Majesty’s Letters Patent deserves far more respect and protection than the Olympic Patent received in B.C. in 2010.

  6. As a technical constitutional matter, is the federal Crown in a position to prohibit the use of the Crown’s prerogative by the provincial Crown? Does the rule of paramountcy apply to prerogative actions?

    Is the subject matter of a statute dealing with any use of a reference to Her Majesty so clearly of federal pith and substance to be valid in itself and to be able to be paramount over inconsistent provincial legislation on the same topic for provincial purposes?

    I would have thought the answers to all these questions is No.

    So: it would probably be more fruitful at law trying to insist on the appropriate standards of appointment at the provincial level.

    Next question: can the grant of a designation under a statute that is silent on the point be revoked on any ground? at pleasure? If the designation is made under the prerogative power, is the answer different?

  7. I presented similiar questions to an expert on Royalty and the response was that, in principle (according to my extensive research, this has never been tested in Canada or anywhere else in the Commonwealth for that matter but why not?), there was no reason why Privy Council, Crown Law Office or similar agencies could not have a general oversight role (in fact they should) and that it was up to the Ministers to ensure that there is adequate supervision. Furthermore, the Governor-General and the monarch both have a general oversight of the standard of government. “In theory they could alert Ministers to failings in the appointment or supervision process. The same is true of the law societies.” The problem is that there would be no consequences for failure to hold the system to account (unconstitutional). Only the Ministers, through Parliament, would be accountable. I have repeatedly alerted every level of government and agency to the problem.

    If the Order of Canada can be revoked for cause (remedy by Charter Standards)then why not a Q.C.?

    If a provincial government and other agencies repeatedly ignore their responsiblity to act to remedy a Charter violation then who has ultimate legal jurisdiction to protect and defend the integrity of the Crown?

  8. For the Manitoba perspective, see this government news release from January 2001.

  9. I wanted to mention that I did write the Governor Generals (one of many letters) asking if it was possible to have the Federal government obtain an “order-in-council” which would have the authority to prevent Her Majesty’s Letters Patent from misuse and/or abuse in B.C. and if necessary, in other provinces and/or territories.
    At the time, I felt this legislation would guarantee the same standard of practice and enforcement (“revocation clause for cause”) which applied to recipients of the Order of Canada. No response.

    When the Attorney General exercises the prerogative and issues Her Majesty’s Letters Patent, it is a legal distinction recognized across Canada and throughout the Commonwealth of Nations. The United kingdom has a remedy to revoke a QC appointment from an unfit lawyer and so does Alberta, Saskatchewan, Nova Scotia and Ontario only B.C. and Newfoundland do not.

    Sadly, I have been the sole voice (even drafting a Royal Bill which I hope will be presented in the Senate soon….) to “protect and defend Her Majesty’s Letters Patent wherein, this protection has not existed in British Columbia, under current provincial legislation and practices, for fifteen years.”

  10. If I were advising the government of Canada (and they haven’t asked me), I would say to stay well away from any attempt to regulate the provincial distribution of honours, even in the Queen’s name. Let the province mind its own business, and the feds theirs. The Order of Canada is the feds’ business. The Queen in her actions in the right of a province, not so much. Why get involved in a test case on such a question?

    Ontario’s measure does not have the government doing anything. The 2006 amendment to the Barristers Act simply provides that a QC is revoked if its holder is disbarred (has his/her licence revoked, in the new language of Ontario legal practice). The holding of a QC is not affected by behaviour that does not have that result.

    I would think that a law society would have a remedy, even in the absence of such a provision, if a disbarred lawyer continued to use the title of QC. That would suggest to me the unauthorized practice of law, or the holding oneself out as authorized to practice, which is probably illegal in itself.

    I am not sure I understand the concern about a Charter breach, as the Charter does not apply to private activity. How could an individual lawyer violate the Charter?

  11. m. diane kindree

    John, I will do my best (non-legal opinion) to answer your probing questions on the doctrine of paramountcy surrounding Royal Prerogative Powers and “federal pith and substance” as this relates to the Crown in Right of Canada (Monarchy of Canada). Will I be able to convince you to change your no response into a maybe?

    What is the operational incompatibility? The Q.C. legislation is inconsistent and in some cases inadequate to ensure the validity and merit of these appointments nationally, let alone throughout the Commonwealth realms. Furthermore, it is undemocratic and disturbing that these appointments (B.C.) are beyond public representation, scrutiny or redress. In the case of B.C., I was advised by the AG, in 2008, that this issue would be reviewed but it has never even appeared on the Legislative Agenda.

    In B.C., the Q.C. Act sets out the procedure to effect the appointment of a Q.C. under Her Majesty’s prerogative power to grant honors. If B.C. opted to use the title Senior Counsel (S.C.), as Manitoba has, the prerogative power would not be exercised and therefore, accountability would not be a shared provincial/federal matter under common law. The case law I presented to the AG of B.C./Canada for consideration was of a former Federal Court Judge in New South Wales. His Q.C. was revoked for cause even though there was no specific legislation pertaining to Q.C. revocation other than a recognition that Her Majesty has a prerogative power to revoke a Q.C.
    Even in the absence of defined legislation (either provincial or federal)corrective action can be taken. My repeated question to the AG of Canada has been. If B.C. hasn’t acted (in 15 years) to defend and protect these important powers when does it become the responsibility and duty of the Federal Government to Act?
    The pillars of our Constitutional Monarchy consists of Parliament, the Senate and the Queen. The Federal Government has been entrusted with the legal right to exercise Her Majesty’s Prerogative Powers which, under common law, still remain absolute. It may be of some interest to know that at the same time the Executive Power exercised the Royal Prerogative Powers, in Foreign Affairs, in their case against Mr. Khadr I was trying to have either the provincial or federal government exercise these same powers to protect and defend Her Majesty’s Letters Patent. I have oftened wondered if the SCC would have found this situation as incomprehensible, incompatible and unjust as I did.

    How can you detach Her Majesty’s Letters Patent from its constitutional, common law and colonial background? The use of Letters Patent, a form of law making legislation with the accepted procedures of the rule of law, must conform to our Charter to be valid in a democratic society.

  12. m. diane kindree

    What I outlined above is the B.C. legislative flaw that seems to offer no protection or defence for Her Majesty’s Letters Patent contrary to spirit of our Charter. I have always believed that accountability lies at the heart of good governance and that citizens entrust their elected and appointed representatives and the judiciary with implementing and reforming policies that serve the greater public good. In turn, citizens must play a role in reporting the alleged unwise use of power which does not respond to concerns by citizens to investigate and change the ways in which it carries out its executive function. I would love to see all stakeholders, including public representatives (currently there are none) collaborate to imnprove the nomination, selection and appointment process and procedures for selecting B.C. lawyers for this honor.
    To answer you question: The lawyer was merely the catalyst (patronage vs. merit) which helped redirect my attention and concerns to what I see as a much bigger problem remaining to be solved.

  13. Well, Diane, I expect that this thread has already overtaxed the legendary patience of Slawians for legal and historical arcana. A thorough response to your points in the past couple of posts would take a law review article, and I am not inclined to write one, or outline one here. However … a couple of thoughts:

    The Crown in a federation is divisible. The exercise of the Royal Prerogative by the Crown in right of the province is not clearly reviewable by the Crown in right of Canada. Its exercise in the context of a clearly provincial power – the regulation of a profession within the province – is not likely to be overridden by some federal prerogative.

    The Royal prerogative cannot be both ‘absolute’(as you put it) and subject to the Charter. The prerogative is in any event entirely subject to being overridden by the legislature; it survives at the benign neglect of the people.

    While the exercise of the prerogative is probably subject to the Charter to some degree (so a policy of not giving QCs to members of a group protected by section 15 would be problematic), it is not clear what remedy would be appropriate, beyond a declaration by a court that the policy was invalid. Could appointments made under such a policy be themselves held void? A court could not make supplementary appointments to make up the gap.

    I do not believe that the conduct of the holder of letters patent issued under the Royal prerogative can cause the exercise of that prerogative to become retrospectively invalid, on Charter grounds or otherwise.

    I do think there may be a good argument that a grant of a title by letters patent under the prerogative can be revoked by the exercise of the same prerogative. (One could also check what the applicable Interpretation Act says about the power to appoint at pleasure, and the power to revoke appointments.)

    The desirability of revoking a QC appointment because of the behaviour of the appointee is a political not a legal question, in the end. If the political will exists to revoke it, I expect the power can be found (and in a pinch, created, as Ontario did it or otherwise.)

    Further, if the honour of the Crown can survive the conduct of some members of the Royal Family, it can withstand the actions of a few holders of letters patent in the far reaches of the Commonwealth. We are an institutional not a personal monarchy, for legal purposes.

    BTW I don’t understand why the Law Society of Manitoba either needed or wanted statutory power – and conditions – to honouring some of its members. The Law Society of Upper Canada created the Law Society Medal shortly after Ontario stopped appointing QCs, with no special statutory authority. It issues them in small numbers (fewer than 10 a year) and some respect goes along with them. The Ontario Bar Association and the Advocates Society also have awards of distinction for their members.

    That is as it should be. The government does not need to tell doctors who should be made Fellows of the College of Physicians and Surgeons, and the accountants manage without state encouragement to create FCAs, FCGAs and FCMAs.

    Lawyers, who like to pride themselves in their independence from government, should not depend on the Crown to declare them worthy.

  14. Although neither Ottawa nor Queen’s Park has appointed Queen’s Counsel for years now, Sir Oliver Mowat and Sir John A. Macdonald fought for decades over the right to appoint them. The Judicial Committee’s view of the matter can be found in Reference re: Ontario Act, 53 Vict. c. 13, [1898] A.C. 247, [1897] J.C.J. No. 2. There is a nice case comment, too, by Albert Swindlehurst, “Status of Canadian Queen’s Counsel”, Law Quarterly Review 14:195 (1898) (Hein).

  15. John, thank you for interesting queries and helpful comments.

    My two final points for your consideration on this topic are:

    1. I have found no evidence of a legal divison of the application of Her Majesty’s Letters Patent other than in the legal constituting of Her Letters Patent in establishing the Office of the Governor General of Canda.
    2. Her Majesty is still constitutionally the head of state, Queen of Canada and still takes precedence in the form of Royal Prerogative powers invested in a fully Canadian Crown. This constitutional distinction (rather than an arbitrary application of prerogative to bestowing provincial Q.C. honors) seems to favor a Federal jurisdiction in this important matter.

    I contend that if there is clear and convincing evidence of misrepresentation and, a remedy under provincial legislation has not been enacted then who is ultimately accountable to Right this Wrong?

    Finally, I support professional worthiness/merit over B.C.’s current practices based on an annual 7% quota system.

  16. The relationship (according to my research) between Letters Patent (1947), Royal Prerogative and “absoluteness” is unique. Letters Patent is one of the most important documents which respects our Canadian Crown. Her Majesty’s Letters Patent “cannot be altered or repealed by parliament since they are a creation of the Monarch’s Royal Prerogative”. Under statute and common law they remain absolute unless we amend the Constitution and the very nature of the Canadian Crown. The Canadian Oath of Allegiance (also the first part of the Oath of Citizenship), an oath of government/judicial office, administered in the presence of the Governor General, is “a promise or declaration of fealty to the Canadian monarch”.

    The Queen is the sovereign of the Order of Canada (1967) and the Order of the Military Merit (1972) and therefore, de facto any Queen’s Counsel Honors as well. The G.G. is the Chancellor of this Canadian System of honors. While Sovereignty is divided between federal and provincial jurisdiction, it is the Queen who unites these elements in her own person (Letters Patent), to embody our fully Canadian Crown. Therefore, “to protect and defend” is not a political,constitutional or legal option, rather it is a necessity since the failure to do so places the Canadian Crown in disrepute.

  17. It might be interesting to compare the ability and duty of a provincial minister to deal with QCs held by people thought unworthy of them, to how the Royal Prerogative works these days in England. The former head of the Bank of Scotland lost his knighthood last month because his conduct in his job was considered unsatisfactory (not illegal).

    Note that Her Majesty acted on advice from the political side. Presumably she could have declined to follow it. Whether she could have (or would ever in practice have, which comes to the same thing) taken that step on her own initiative, without advice (not to say contrary to it), is a different question.

    I think that the risk of bringing the Crown into disrepute is such a vague concern that its application requires judgment, not some automatic action taken on the mere allegation – or even evidence-backed allegation – that the risk exists. As in the UK, so too here that judgment by the responsible politician is not likely to be reviewed by the courts, even though our courts do have to decide when the administration of justice may suffer the same fate (but they are experts in the administration of justice in a way that they are not in the Honour of the Crown, aboriginal treaty compliance excepted…)

  18. Section 2 of the Barristers Act, R.S.O. 1990, c. B.3 (CanLII) expressly authorizes appointments “during pleasure”. The Queen’s Counsel Act, R.S.B.C. 1996, c. 393 (CanLII), however, is silent on the question of tenure. There’s no doubt that the custom has generally been to make appointments during pleasure. I did a quick check for specimens. Thomas Rymer’s Foedera, volume 9, part 3, page 88 (archive.org), has a note of the appointment of Thomas Levingston in 1641: “Rex, tricesimo primo dic Julii, constituit Thomam Levingston Armigerum, unum Consiliariorum suorum ad legem durante beneplacito.” Somebody ought to be able to provide a more recent example from B.C.

  19. The Interpretation Act of BC (R.S.B.C. 1996 c. 238, says this:

    20 (1) An authority under an enactment to appoint a public officer is authority to appoint during pleasure.

    So we just have to decide whether a lawyer appointed as Queen’s Counsel is a public officer. Section 1 is not helpful: “public officer” includes a person in the public service of British Columbia.

    The BC Act says that QCs are ‘provincial officers’, as does the Ontario Act (BC gives them a capital P.) That is a relatively rare term in Ontario statutes; most of its uses seem to apply to official inspectors, e.g. of farms or the environment. Are provincial officers public officers for the purpose of the appointment power? Probably…

    Well, something else we would have to decide: was the appointment made during pleasure? Having the authority to appoint someone on those terms does not mean that the authority was so exercised.

  20. There’s also section 4 of the Constitution Act, R.S.B.C. 1996, c. 66 (CanLII) to consider:

    4 (1) The appointment to public office under the government of British Columbia, whether vacant or created and whether salaried or not, is vested in the Lieutenant Governor, with the advice of the Executive Council, with the exception of the appointment
    (a) of the officials who are also appointed members of the Executive Council, which appointments are vested in the Lieutenant Governor alone, or
    (b) for which other provision is expressly made by an Act.

    (2) All officers appointed by the Lieutenant Governor, whether by commission or otherwise, remain in office during pleasure only.

    It’s pretty clear that sections 1 and 15 of the Public Service Act, R.S.B.C. 1996, c. 385 (CanLII) exclude Queen’s Counsel from the definition of “employee” in that act and, consequently, from the definition of “employee” in the Public Service Labour Relations Act, R.S.B.C. 1996, c. 388 (CanLII).

    I agree, of course, that we need to see a copy of the letters patent in question. Presumably the Provincial Registrar of British Columbia could be applied to.

  21. John, thank you for raising the bar on some interesting and challenging questions as Canada begins a four month celebration of Her Majesty’s Diamond Jubilee.

    #1. Lawyers are public officers and public defenders (legal aid) in their role as officers of the courts which is a publicly recognized status which is also implied under this legislation. Furthermore, the primary mandate of Law Societies across Canada is to serve the public inerest which parallels the official duty and responsibility of the AG. If a Notary Public is a public officer, constituted by law, to serve the public in non-contentious matters, a lawyer is considered the legal tier qualified to represent the public.
    #2. A comprehensive catalogue (available in Britain not Canada) does exist and covers some of the following major areas related to the application of prerogative powers.
    1. Power relating to legislature (eg. legislating by Order in Council (eg. in relation to civil service) or by letters patent…..)
    2. Powers relating to judicial system encompassing function of the AG.
    3. Powers in foreign affairs (I have commented fairly extensively on this matter (problems arising in the Khadr case) on thecourt.ca).
    4. Powers related to armed forces
    5. Powers related to appointments and honours

    To my knowledge, the British Government has never suggested any legal changes to the prerogative of the Crown on the Monarch’s constitutional or personal prerogatives. For that matter, neither has Canada.

    I will contend that “pleasure” carries with it a duty of fairness (protect and defend), owed to Her Majesty, in the issuing of Her Letters Patent to unfit lawyers. That duty of fairness is absent in B.C.’s Q.C. Act legislation (no revocation clause for cause)and thus, not only invalidates the legitimacy of these honors (for last 16 years) but places the Crown (Office of the AG) in disrepute (failure to act fairly and responsibly to correct flawed legislation). In this case, “fairness” is the legal heavy weight champion and “pleasure” is a wet sponge.

    Unfortunately, I have had to narrow my approach in addressing this problem (due to an abundant lack of interest, concern or accountability by the provincial government)to paragraph 25, section c of the Constitution of the Order of Canada (in considering a possible federal solution) which deals with revocation of the Order of Canada for cause. Four people have had their Orders revoked and two more are under review: Conrad Black and Garth Drabinsky (some members have circumvented the process and resigned voluntarily). In my mind, there is little doubt that the federal gov’t (since I have reported this matter to the AG of Canada) has jurisdiction to act immediately to protect and defend Her Majesty’s Letters Patent from any further misuse and abuse if he considers the problem serious enough to do so. I have been waiting 8 months for his reply.

    In my humble experience, the most logical and rational approach would be to spend millions on a party after the precedence has been set to protect and defend Her Majesty’s Letters Patent (preferably before she arrives in Canada). Otherwise, this is just one great big display of hypocracy with a big price tag.