In Praise of the Queen’s Counsel

• Author: Adam Dodek
• Date: February 08, 2016

For many lawyers, December is a month filled with anticipation as most of the provinces announce coveted Queen’s Counsel (QC) appointments prior to Christmas. For federal government lawyers, they waited for an announcement that never came.

In 2013, the Harper government revived the federal QC after a two-decade hiatus. In 2015, the new Trudeau government appears to have quietly abandoned this practice. Or it may simply not have been a priority for a busy new government. Whatever the explanation, if the Trudeau government wants to recognize the value of public service, it should continue the practice of awarding QCs to federal lawyers.

Historically, Queen’s Counsel (or King’s Counsel when the reigning monarch is male) have been awarded in the United Kingdom and some Commonwealth countries to senior members of the bar. In Canada, both the federal government and the provinces have the constitutional authority to award QCs. Perhaps not surprisingly, this issue was decided in 1897 by the Judicial Committee of the Privy Council when the federal government challenged upstart Ontario’s power to award QCs. It is so Canadian to have a Privy Council division of powers decision on this issue.

Over the years, there were highs and lows to the Canadian QC. One of the highs was the 1934 appointment of Helen Alice Kinnear as the first female King’s Counsel in the British Empire. The list of QCs and KCs includes many past greats of the Canadian legal profession: John Robinette, Newton Rowell, John Diefenbaker, Louis St. Laurent, Lincoln Alexander and Bora Laskin. I enjoy the idea that Bora Laskin likely received his QC in 1956 at least partially on the strength on his Constitutional Law casebook.[i] Of course, many worthy lawyers never received QCs. And others of questionable merit received their designation more on the basis of service to the party in power than service to the profession. Because of political patronage, some provinces overhauled the process of appointing QCs and others (Manitoba, Ontario and Quebec) abandoned it altogether. The federal government fell into this latter category, abandoning the process altogether in 1993.

The Government of Canada revived the QC in 2013 but decided – rightly in my view – to restrict the award to lawyers who are literally “the Queen’s Counsel”, i.e. federal government lawyers. Minister of Justice Peter MacKay revived the practice in December 2013 on the occasion of the anniversary of the Statute of Westminster and the end of...