Death of Queen Elizabeth means legal terminology changes

It will now be 'King's Counsel' and 'Court of King's Bench'

Death of Queen Elizabeth means legal terminology changes

The passing of Queen Elizabeth II last week will mean changes to some of the terminology used in the Canadian legal system.

Most significantly, four provinces have already renamed their highest trial courts. It is now the Court of King’s Bench of Alberta, Court of King’s Bench for Saskatchewan, Court of King’s Bench of Alberta and Court of King’s Bench of New Brunswick.

In addition, provinces that have for decades handed out “Queen’s Counsel” designations to prominent lawyers will now need to switch to “King’s Counsel.” While signage and documents will soon be changed to reflect King Charles III’s ascension following his mother’s death, that may take a while.

“Our beloved sovereign dedicated her life to her people and to the institutions that are the safeguards of our parliamentary democracy and liberties,” wrote Tyler Shandro, ECA Minister, in a letter to the Law Society of Alberta.

“I, along with all Albertans, honour her life and legacy. It is this very legacy that has accredited the esteemed honourary title of Queen’s Counsel (QC) – a title for which has been bestowed on various members of the bar throughout the Queen’s 70-year reign as monarch.”

He noted, however, that “the term, QC, is not defined, and the Queen’s Counsel Act (QCA) does not include a provision that expressly provides that those appointed will be titled QC.”

His letter pointed out that s. 56 of the Judicature Act contains provisions on the demise of the Crown. “It provides that the holding of office, the right or capacity to engage in a profession, any oaths, and the legislature continue as if the demise did not occur.” Since the position of QC is considered an office, the provisions in the JA that continue holding an office will apply to QCs.

“Hence, there being no need to reappoint current QCs,” Shandro says, adding that the provisions of the Interpretation Act provide that references to “The Queen” or “The King” in statutes are interchangeable terms, “all referring to the current monarch.”

Therefore, he wrote, there is no need to reappoint those given QC designations – they will automatically become KC.

Since there is no need to reappoint current QCs, his letter states, as the honourary QC designation will automatically transfer to become KC, new letters patent will not be re-issued either. If any have their QC designation on their notary public seal, they will need to acquire a new seal that replaces the QC designation with KC.

A similar notice went out in Saskatchewan, with a notice on the government’s website saying that under the Queen’s Bench Act and the Legislation Act, “the name of the Court of Queen’s Bench changes automatically upon the succession of the King. It is now the Court of King’s Bench, and should be referred to by that name henceforth.”

Pleadings and legal documents filed with the court under “Queen’s Bench” remain valid, the notice states. “There is no need to amend or re-file the documents. Henceforth, the term ‘King’s Bench’ should be used in all pleadings and legal documents.”

As for those awarded a QC, “the succession does not affect existing appointments as Queen’s Counsel or seniority at the bar.” Also, there is no need for existing patents of appointment to be re-issued. And there is no change to the French abbreviation – the title “conseiller du roi” remains correct, as does the acronym “c.r.”

Manitoba courts posted Thursday afternoon on Twitter that “pursuant to s. 3 of The Court of Queen’s Bench Act, the court in name and in all documents and proceedings shall be designated and described as the Court of King’s Bench.”

The act says during the reign of a Queen, it shall be called the “Court of Queen’s Bench of Manitoba” and, during the reign of a King, the “Court of King’s Bench of Manitoba.”

In New Brunswick, Chief Justice Tracey DeWare of the Court of King’s Bench, sent out a statement that gave condolences to the Queen’s family and said she had a “life well lived.” It also noted that upon the Queen’s death, the “Court of Queen’s Bench of New Brunswick immediately became the Court of King’s Bench of New Brunswick by virtue of section 37 of the Interpretation Act . . . and subsection 2(1) of the Judicature Act.”

The chief justice added that all court matters would continue to proceed as scheduled.

Section 1 of the Demise of the Crown Act says all justices of the Court of King’s Bench continue to hold office. Anyone who has a notice of appearance, a notice of hearing, a notice of trial or a summons issued by The Court of Queen’s Bench is required to attend before the court as set out in the notice, which remains in full force and effect.

“The changing of the name of the court following Her Majesty’s passing has no impact on the operations of the court nor the orders and directives issued by the court.”

Eight of Canada’s ten provinces still award the QC designation. Quebec stopped doing so in 1975, and Ontario stopped in 1985. In the past, critics said those who received one depended mainly on political affiliation. However, in those provinces that continue to appoint lawyers with the title, committees composed of bench and bar representatives typically screen candidates and advise the relevant attorney general on appointments based on merit and community service.

The federal government stopped appointing Queen’s Counsel in 1993 but resumed the practice in 2013 under the government of Stephen Harper. Since the government of Justin Trudeau, federal designation of the title has been limited to the Attorney General of Canada. Jody Wilson-Raybould was appointed as Queen’s Counsel (now King’s Counsel) when she served as Attorney General, and David Lametti also has the title.

Eugene Meehan, now KC, of Supreme Advocacy in Ottawa, says he will be partially affected – “change of letterhead, change on our website, change to business cards, change to email signature, change on the brass plate outside the front door.  But still, not very much.”

The real burden of the change from a Queen to a King will be borne by court staff and legal assistants, Meehan says, “who will have to update and keep a sharp eye out for a misspelled court name or style of cause.”

And in the criminal law context, he adds “presumably the names of cases will change from Regina to Rex.” However, although the Queen has passed on, “her juridical memory will live on in our decisions and precedents – and some outdated court forms.”

And as for whether the rock band Queen will need a name change, Meehan quips, “well you would have to ask them.”

Lawyer Carley Parish, now a KC in New Brunswick and president of the province’s law society, says she was “extremely saddened” to hear of Queen Elizabeth’s passing. “I was actually at the CBA National Board meeting when I heard.  She was a wonderful leader, and it was an absolute honour having been appointed as Queen’s Counsel during her lifetime.”

Parish adds: “We will need to change our letterhead, court documents, stamps, emails and so forth!  It will also take some time to get used to addressing the Court as Court of King’s bench and His Majesty the King.”

Geoffrey Budden, a KC based in Newfoundland and Labrador says he heard the news while in England. “I was having dinner at a colleague’s house which had been built in 1816. It was interesting, while in that setting, to reflect on all the changes which the Queen had experienced in her long life,” and how she and the country had “both changed and shown such continuity” over the 70 years of her reign.

As for practical changes for Budden “and the other lawyer at my firm who also is a Q…. um, a KC,” stationery, business cards and the firm’s website will have to be changed.

“It sounds so strange even to say ‘KC’ but we’ll get used to that too, in time.”

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