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Royal Succession and the Canadian Crown As a Corporation Sole: a Critique of Canada’S Succession to the Th Rone Act, 2013

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Royal Succession and the Canadian Crown As a Corporation Sole: a Critique of Canada’S Succession to the Th Rone Act, 2013 Royal Succession and the Canadian Crown as a Corporation Sole: A Critique of Canada’s Succession to the Th rone Act, 2013 Philippe Lagassé James W.J. Bowden* Th e constitutionality of Canada’s Succession to stitution Act, 1867 ensures that Canada and the Th rone Act, 2013 (Succession Act) will be the United Kingdom share the same person tested in Quebec’s Superior Court in the coming as monarch.1 Th is view has been supported by months. In a case brought by two law professors Peter Hogg, Benoit Pelletier, Robert Hawkins, from Laval University, with the government of and other prominent constitutional lawyers.2 Quebec as an intervener, the Quebec Superior An opposing view has been off ered by Anne Court will consider whether the Parliament of Twomey and the Canadian Royal Heritage Trust Canada’s assent to a British statute is suffi cient to (CRHT). Twomey points out that since the West- change the rules of royal succession for Canada. minster Parliament can no longer legislate for If the court deems the issue justiciable, which is Canada, the distinction between the Canadian by no means certain, the case will likely turn on and British Crowns implies that changes to royal three interrelated questions. First, does the pre- succession must be accompanied by a Canadian amble to the Constitution Act, 1867, which states law if they are to have any eff ect in Canada.3 that Canada is federated under the “Crown of CRHT argues that royal succession was incorpo- United Kingdom of Great Britain and Ireland” rated into Canadian law during the Abdication imply, constitutionally, that Canada and the Crisis of 1936 and that the existence of a separate United Kingdom must have the same person as Canadian Crown means that Canada cannot rely monarch? Second, does royal succession form on British law to change the succession to the part of Canadian law, or does British law deter- uniquely Canadian throne.4 In addition, CRHT mine the rules that govern who will be the Sov- suggests that the wording of s.41(a) makes it ereign of Canada? Th ird, if royal succession is a likely that royal succession does fall under the matter of Canadian law, do changes to the law of offi ce of the Queen. succession aff ect the “offi ce of the Queen,” which can only be altered by the unanimous consent of In anticipation of both the Quebec Superior the House of Commons, Senate, and provincial Court case and a possible appeal to the Supreme legislative assemblies under section 41(a) of the Court, we examine an aspect of the debate that Constitution Act, 1982? has received little attention thus far. Specifi cally, we argue the Queen of Canada’s status as a corpo- According to the federal Department of ration sole undermines the federal government’s Justice, matters of royal succession are strictly interpretation of the law and constitutionality of a matter of British law that does not form part royal succession in Canada. Since the Queen of of Canadian law, and the preamble of the Con- Canada is a corporation sole separate and dis- Constitutional Forum constitutionnel 17 tinct from the Queen of the United Kingdom, in Right of Canada,” or “the Sovereign” pertain to the rules governing the succession of the Crown this legal, or corporate, personality.8 of Canada can only be altered through a change to Canadian law. Hence, the succession to the Canadian Crown does not change automatically Constitutionally, having the Queen of Can- when the British Parliament alters the rules gov- ada as a corporation sole means that this legal erning succession to the British Crown. In turn, person personifi es the Canadian state and acts as the guarantor of the rule of law and the underly- the Canadian Parliament cannot merely assent 9 to a British statute to change the laws of royal ing authority behind Canada’s institutions. Th e succession for Canada. Further, since the Crown Canadian state is legally a person and all state of Canada is a corporation sole, matters of suc- and governing authority is said to fl ow from this legal personality; the Crown remains “a supreme cession by defi nition form part of the “offi ce of 10 the Queen,” and thus fall under s.41(a) of the entity in which all functions of the State reside.” As a legal person, the Crown can hold property Constitution Act, 1982. Th e Queen of Canada’s 11 status as a corporation sole, therefore, comple- and enter into contracts. In fact, it is for this ments the arguments put forth by Twomey and reason that the state and the executive can legally the CRHT. act as a person. Similarly, as a legal person the Canadian state and government are “capable of Th is paper elaborates on the fundamental acquiring rights and liabilities under common meaning of the Queen as a corporation sole and law or statute law, capable of suing and being examines how the corporate status of the Crown sued, and bound by the decisions of courts and 12 undermines the logic of the Succession to the other properly constituted tribunals.” Th rone Act, 2013. It begins with an examination of the Canadian Crown as a corporation sole and Yet having the Crown as a corporation sole the purpose of granting the Sovereign of Canada serves a more critical purpose: it ensures the this status. Next, the paper explores how the perpetuity of the state and governing author- Canadian Crown’s standing as a corporation sole ity.13 Because the Queen of Canada is a corpo- strengthens the case that matters of succession ration sole, all the decisions, authorities, and are part of Canadian law and likely fall under s. constraints that surround the Crown as the state 41(a) of the Constitution Act, 1982. and executive, such as those found in the Con- stitution and in statute, are preserved as succes- sive natural persons occupy the offi ce of Sover- I. Th e Canadian Crown as eign. Moreover, the Queen of Canada’s status as Corporation Sole a corporation sole ensures that all references to the Queen, the King, Her Majesty, His Majesty, According to the federal Department of Justice’s and the Crown over time are synonymous and volume Crown Law, the Crown of Canada is “a thus refer to the same legal personality.14 Conse- non-statutory corporation sole.”5 Essentially, “a quently, there is no need to reaffi rm the powers corporation sole creates a corporation out of an of the Crown, or the constraints on those author- offi ce. Once the corporation is established, there ities, upon a demise of the Crown and the acces- is no distinction between the [offi ce-holder] sion of a new natural person as the next reigning and the offi ce itself.”6 Although the offi ce and Sovereign. Nor is there any need to rewrite any offi ce-holder retain dual capacities, “namely its laws or clarify that previous decisions to bind the corporate capacity, and its individual or nat- Crown are still binding.15 As a corporation sole, ural capacity,”7 they are inseparably fused in law. the Sovereign never dies in law; while natural Accordingly, while it is possible to speak of Queen persons who serve as monarch pass on, the legal Elizabeth II as a natural person alone, and while personality they embodied lives on. Hence, it is most discussion of the Queen tends to invoke the the corporate character of the offi ce of the Sover- monarch as a natural person, in matters of Cana- eign which ensures that the authority of the state dian law, references to “the Queen,” “Her Majesty and executive continue uninterrupted as succes- 18 Volume 23, Number 1, 2014 sive natural persons occupy the offi ce of Sover- used to distinguish between the property mon- eign. As Blackstone observed: archs held as the Sovereign opposed to a natural person, the original, and still essential, purpose of Corporations sole consist of one person only making the Crown a corporation sole was to fuse and his successors, in some particular station, monarchical predecessors and successors into a who are incorporated by law, in order to give single, immortal legal personality.18 As Kanto- them some legal capacities and advantages, rowicz demonstrated, the Crown as a corpora- particularly that of perpetuity, which in their natural persons they could not have had. In tion originally developed as a means of ensuring this sense, the king is a sole corporation […] automatic hereditary succession upon the death of one reigning Sovereign and the accession of Th e king, for instance, is made a corporation another, which in turn created a perpetual legal to prevent in general the possibility of an personality.19 Th e continuity of peace, order, and interregnum or vacancy of the throne, and to good government depended upon the “rex qui preserve the possessions of the crown entire; nunquam moritur, a ‘king that never dies.’”20 for immediately upon the demise of one king, his successor is, as we have formerly seen, in In a Canadian context, the corporate charac- full possession of the regal rights and dignity.16 ter of the Crown serves another purpose as well: Succession is thus integral to the Crown as a it allows the Crown of Canada, the legal person corporation sole because the Crown can never be known as Her Majesty in Right of Canada, to be vacant. Th e Crown cannot be disembodied from separate and distinct from the British Crown, the a natural person, which means that its very exist- legal person known as Her Majesty in Right of the ence as a corporation sole and central institution United Kingdom, while maintaining the same of government depends upon the chain of per- natural person the holder of both monarchical sons who succeed to the offi ce; in other words, offi ces.
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