Royal Succession and the Canadian Crown as a : A Critique of ’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 share the same person tested in Quebec’s Superior Court in the coming as .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 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 , 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 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. Th us, when it is said that Canada and the the Crown depends on the line of succession. United Kingdom share the same Queen, this is a Succession is a necessary part of the offi ce of a reference to the monarch as a natural person, not corporation sole. their distinct Sovereigns as legal personalities. Canada and the United Kingdom share Queen Perpetuity and seamless succession, in fact, Elizabeth II as monarch in a personal union, not were the underlying motives behind the gradual a legal one; the Queen as a natural person holds establishment of the Sovereign as a corporation the distinct offi ces of the Canadian and Brit- sole. Under early English feudalism, there was ish Sovereigns, but the legal separation of those no need to distinguish between the monarch as offi ces, and therefore of the Canadian and British a natural person and legal entity. Th e authorities Crowns, is not erased as a consequence. Insofar and rights of the monarch were personal, as were as the Canadian and British Crowns are distinct the ties of fi delity and service that bound indi- corporations sole, Canada and the United King- viduals to the monarch, and vice versa. As the dom are able to maintain that their Sovereigns English state and system of laws grew more com- are separate legal persons while having the same plex, it became necessary to bring greater stabil- natural person as the holder of their respect ity and continuity to the Crown. Th is was done monarchical offi ces.21 by distinguishing between the monarch in a per- sonal capacity, on the one hand, and in a political Th e signifi cance of this point should not be capacity, on the other.17 Known as the doctrine of understated. Because the Crown serves as the the “king’s two bodies,” the conceptual separation concept of the state in Canada and the Cana- between the monarch’s “” and “body dian state is the legal person called Her Majesty natural” allowed the authority of the Crown in Right of Canada,22 stating that Canada and and royal dignity to be preserved and protected the United Kingdom have the same Sovereign during successions. While the monarch’s natu- as a legal person, or that Canada and the United ral body could die, the body politic could not. Kingdom are under a common Crown, implies Although the two bodies doctrine would later be that the two countries are not separate and dis-

Constitutional Forum constitutionnel 19 tinct sovereign states. Stated plainly, if Her Maj- which says that Canada is “federally united into esty in Right of Canada and Her Majesty in Right One Dominion under the Crown of the United of the United Kingdom are the same legal per- Kingdom of Great Britain and Ireland,” erects a son, then Canada and the United Kingdom are “principle of symmetry” in constitutional law, the same state. Indeed, it is for this reason that in such that the Queen of the United Kingdom is ex 1981 the English Court of Appeal, in answering offi cio the same person as the Queen of Canada.25 the question of whether Canada or the United Finally, it has been submitted that matters of Kingdom was bound by First Nations treaties, royal succession belong to British law alone and were careful to note that the Crowns of Canada are not part of the laws of Canada at all; hence, it and the United Kingdom had been multiplied is for the British Parliament alone to decide the aft er the Imperial Conference of 1926, and that succession to the throne.26 “In matters of law and government the Queen of the United Kingdom is entirely independent and Each of these arguments is open to critique. distinct from the Queen of Canada.”23 Th e Australian and New Zealand decision to alter the rules of royal succession in their law, For Canada, therefore, the Sovereign as a rather than assenting to a British law, casts doubt corporation sole not only ensures the perpe- on the notion that matters of succession belong tuity of the state and governing authority, but to British law alone and that the preamble to also provides the legal and constitutional logic the Statute of Westminster is a suffi cient mecha- behind the Canadian state’s independence from nism to alter the succession for the former self- the United Kingdom. Canada is only a de jure governing Dominions. If this convention is said independent and sovereign state if the Crown of to exist by virtue of the Statute of Westminster, Canada is a corporation sole separate and dis- it is worth asking why Australia and New Zea- tinct from the Crown of the United Kingdom. land do not recognize it, or rely on it, to alter the rules of successions to their respective crowns, the Crown of Australia and the Crown of New II. Th e Canadian Crown and Zealand. On the contrary, New Zealand’s royal Royal Succession succession law denies that such as a convention exists. Th e Government of New Zealand pro- Canada’s Succession to the Th rone Act, 2013 does vided comments on its bill, explaining “Changes not purport to alter the rules of royal succession to the United Kingdom succession laws do not in Canadian law. Instead, the statute assents to automatically apply to New Zealand, so the changes to the laws of royal succession for the Royal Succession Bill is necessary.”27 In April United Kingdom that have been passed by the 2013, the Premiers of the six Australian states British Parliament. Although this approach dif- and the Prime Minister of the fers from the one taken in Australia and New of Australia agreed that Australia would alter Zealand, where their parliaments are enacting its laws on succession to the throne through legislation to alter their own laws of royal suc- section 51(38) of the Commonwealth of Aus- cession rather than assenting to a British law, the tralia Constitution Act, 1901, which allows the legitimacy of the Canadian act has been defended state parliaments to delegate their authority to on four grounds. First, it has been argued that the federal parliament so that it can legislate the Canadian statute accords with a convention for all of Australia.28 Th e state of Queensland set forth in the second recital of the preamble fi rst introduced its Succession to the Crown Bill, to the Statute of Westminster, 1931, which states whose preamble also rejects the Canadian inter- that the assent of the Dominion parliaments is pretation: “It is necessary for the Parliament of required in order to make “any alteration in the the State to enact legislation for these purposes law touching Succession to the Th rone or the as no Act passed by the Parliament of the United Royal Style and Titles.”24 Second, the govern- Kingdom aft er the commencement of the Aus- ment of Canada and Peter Hogg have argued tralia Acts extends to the State as part of the law that the preamble of the Constitution Act, 1867, of the State.”29

20 Volume 23, Number 1, 2014 Analyzing the Succession to the Th rone Canadian Crown does not automatically adhere Act, 2013 from the perspective of the Cana- to British laws of royal succession. Moreover, the dian Crown as corporation sole reinforces and mechanism allowing the British Parliament to extends this critique. As a corporation sole, mat- legislate for matters of royal succession in Can- ters of succession are inherent to the Canadian ada, section 4 of the Statute of Westminster, was Crown by defi nition. Th is must be the case if the repealed by the Canada Act, 1982. corporation is to achieve its primary purpose: to ensure the perpetuity of the Crown and seamless Notwithstanding His Majesty’s Declara- succession to the offi ce of Sovereign. Th e ques- tion of Abdication Act, 1936 and the Succession tion, then, is where the laws governing the suc- to the Th rone Act, 1937, it has been argued that cession for the Canadian Crown are to be found the rules of succession to the Canadian Crown and what legislative power is responsible for mirror those of the British Crown by conven- formulating them. Th e Canadian government’s tion. Th e existence of this convention was put position is that the Canadian Crown recognizes forth by the Ontario Superior Court in the case 33 the rules of succession of another, separate, and of O’Donohue v. Canada. As noted above, this distinct corporation sole, the British Crown, as convention is said to exist by virtue of the pream- determined by the British Parliament. Unfortu- ble to the Constitution Act, 1867, which speaks nately, the government’s position faces a signifi - of Canada being federated under the Crown of cant problem: there is no legal precedent indicat- the United Kingdom and Ireland. Of course, this ing that the laws of succession to the Canadian was the case in 1867 when Canada was under the Crown are determined by the British Parliament, sovereignty of the British Crown and there was either by design or by default. no independent Canadian state. Th e purpose of this wording was to identify the authority under which Canada was created and where the ulti- On the contrary, the fact that the Canadian mate sovereign authority for and over Canada government requested and consented that the was found – with the British Crown-in-Parlia- British Parliament extend His Majesty’s Declara- ment. Starting in 1926 with the Balfour Report, tion of Abdication Act, 1936 to Canada, using the however, a distinctly Canadian Crown began to now defunct section 4 of the Statute of Westmin- form. From that point forward, the reference to ster, indicates that merely assenting to British law the Crown in the Constitution Act, 1867 evolved was not, and is not, suffi cient to change the rules to mean the Crown of Canada. Furthermore, we of succession for Canada.30 In March 1937, more- know that the preamble to the Constitution Act, over, the directly imported 1867 did not pertain to matters of royal succes- the rules governing succession and incorporated sion, since this issue was specifi cally addressed in them into the laws of Canada through the Succes- section 2 of the Constitution Act, 1867, an inter- sion to the Th rone Act, 1937, which assented retro- pretive clause which was repealed by the Brit- actively to His Majesty’s Declaration of Abdication ish Parliament in 1893: “Th e Provisions of this Act, 1936, and more importantly, incorporated it Act referring to Her Majesty the Queen extend as part of the laws of Canada by including it as also to the Heirs and Successors of Her Majesty, an appendix.31 Th e extension of the His Majesty’s Kings and Queens of the United Kingdom of Declaration of Abdication Act, 1936 to Canada Great Britain and Ireland.” and the enactment of the Succession to the Th rone Act, 1937 by the Canadian Parliament to Canada To establish that the preamble Constitution demonstrates that the Canadian Crown has its Act, 1867 provides that Canada and the United own rules of succession. Hence, the fact that the Kingdom must share the same monarch today, it laws of succession were purposefully extended to is therefore necessary to make two tenuous argu- Canada belies the argument that matters of royal ments. succession are not part of Canadian law.32 Addi- tionally, the fact that Canada could not merely Th e fi rst is that the preamble remains literally assent to British law to alter the laws of royal true: that Canada is still under the sovereignty of succession for Canada in 1936 indicates that the the British Crown, and Canada and the United

Constitutional Forum constitutionnel 21 Kingdom must share the same monarch for this In the absence of greater evidence or prec- reason.34 Since the Crown is the state for both edents, it is unclear how, or on what grounds, a countries, this would mean that Canada’s stand- foreign legislature sets the rules governing the ing as a sovereign state independent from the corporate legal personality that is the Canadian United Kingdom is a political reality but not a state. Th e Canadian advocates of this hypothesis legal or constitutional one. Th is would not only have failed to explain why the principle of sym- mean that Her Majesty in Right of Canada and metry applies only to the United Kingdom and Her Majesty in Right of the United Kingdom are Canada and not to the United Kingdom and Aus- not separate and distinct, despite what British tralia and not to the United Kingdom and New law lords found in 1981, but would also imply Zealand. Th ey have equally failed to explain how that Canada did not attain de jure independence this convention overrides the rules of succession and sovereignty from the United Kingdom in that were incorporated into Canadian law via His 1982, which would contradict the fi nding of the Majesty’s Declaration of Abdication Act, 1936 and the Succession to the Th rone Act, 1937. English Court of Appeal.35 Assuming that the succession to the Cana- Th e second argument would be that section dian Crown is part of Canadian law and that Par- 2 of the Constitution Act, 1867 still applies, or liament cannot merely assent to a British statute should be understood to apply via the preamble, to change the rules of succession for Canada, despite the fact that it was repealed. Regard- the next issue that must be addressed is whether less of why the British Parliament repealed this succession is a matter that relates to the “offi ce provision, the fact remains that it was repealed. of Queen,” which would fall under the consti- Hence, an attempt to revive section 2 as a con- tutional amending formula outlined in s. 41 of vention graft ed onto the preamble would appear the Constitution Act, 1982. Two arguments can to be a highly questionable eff ort to get around be made against the idea that succession does an inconvenient historical fact. Furthermore, pertain to the offi ce of the Queen. First, the case even if section 2 had not been repealed, we have might be made that s. 41 only addresses changes good reason to think that it would either be made to the Constitution Acts and the statutes interpreted to refer to Her Majesty in Right of included in the schedule. Since royal succession is not mentioned in either Constitution Act, mat- Canada today or be considered obsolete. Section ters of succession do not involve an amendment 2 of the Commonwealth of Australia Constitution to the “Constitution of Canada.” Second, it has Act states “Th e provisions of this Act referring been posited that alterations to the rules of suc- to the Queen shall extend to Her Majesty’s heirs cession aff ect the offi ce-holder of the offi ce of and successors in the sovereignty of the United Sovereign, not the offi ce itself.37 Kingdom.” Notwithstanding that this provision remains in place, Australia does not consider Both of these arguments are undermined by that the laws of succession for the Australian the fact that the Canadian Crown is a corpora- Crown are set by the British Parliament or that a tion sole. Although Canada’s constitution acts do convention of symmetry exists between the Aus- not refer to succession explicitly, references to the tralian and British monarchs. Because Her Maj- Queen in the constitution acts refer to the Her esty in Right of Australia is separate and distinct Majesty in Right of Canada, the legal personal- from Her Majesty in Right of the United King- ity and corporation that, by defi nition, includes dom, section 2 no longer applies.36 Were sec- the current monarch and successors. Indeed, it is tion 2 of the Constitution Act, 1867 still in place, precisely because the Queen is a corporation sole the same would surely hold in Canada, unless it that references to the Queen in the Constitution could be shown that the Canadian state failed to Acts applied to the kings that succeeded Queen achieve the same degree of independence from Victoria, and will apply to the kings and queens the United Kingdom that Australia and New that succeed Queen Elizabeth II. Because the Zealand did. Queen as a sole corporation includes successors,

22 Volume 23, Number 1, 2014 matters of succession are implied in references Freedoms. Indeed, it is probably to avoid consti- to the Queen in Canada’s Constitution Acts. Th e tutional challenges that the federal government Queen as a corporation sole, moreover, belies the chose to approach the Succession Act in the way notion that matters of succession relate only to that it did. Seen from this vantage point, its aim the current offi ce-holder and not to the offi ce. should outweigh the questionable legal and con- Corporations sole fuse offi ces and offi ce-hold- stitutional grounds upon which it rests. ers in law into one corporate personality, which then merely possesses dual capacities. Any stat- As tempting as it is to use this logic to dismiss ute that seeks to aff ect the offi ce-holder necessar- the legal and constitutional issues surrounding ily aff ects the offi ce, and vice versa. Nor would it the Successsion Act , such an approach ignores the be logical to suggest that succession aff ects the conceptual damage to Canada’s standing as a de offi ce-holder alone. Royal succession deals with jure independent and sovereign state. However who will legally be fused with the offi ce. antiquated or abstract it may appear, it remains that the Crown is the concept of the state in Can- Finally, although this argument has not ada, and that the state is a legal person known yet been made, it could be argued that matters as Her Majesty in Right of Canada by virtue of of succession do not relate to the offi ce of the the Crown’s status as a non-statutory corporation Queen because succession regulates the choice of sole. Claims that the laws governing this Cana- which natural person becomes monarch, rather dian corporation fall under the authority of the than the legal personality known as Her Majesty British Parliament, or that the legal personal- in Right of Canada. However intuitive this rea- ity of the Canadian state is still the same as the soning may be, it fails to appreciate the logic of legal personality of the British state, undermines royal succession laws. In our time, the rules of the independence and sovereignty that Canada royal succession deal with qualifi cations to hold began to enjoy aft er 1926 and could fully claim a public offi ce. Th eir purpose is to determine aft er 1982. which natural person meets the criteria to serve as the holder of that offi ce. Hence, unlike matters While the blurring of Canada’s de jure inde- of inheritance, royal succession laws do not deal pendence and sovereignty may seem a trifl ing with the relationship between natural persons; point compared with amending the Constitution instead royal succession rules establish a rela- of Canada, it should be noted that the Federal tionship between an offi ce and an offi ce-holder. Government’s interpretation of the law of royal In a Canadian context, this means that the law succession could invite equally complicated of royal succession addresses the qualifi cations troubles. Th e English Court of Appeal’s fi nd- to succeed to the offi ce of the Queen of Canada. ing that the Queen of Canada and the Queen of the United Kingdom are separate and distinct III. Conclusion ensured that First Nations treaties were not bind- ing on the British government. If this distinction In evaluating the constitutionality and eff ect of between the Queens is confused, it is not impos- Canada’s Succession to the Th rone Act, 2013,(Suc- sible that this question could be revisited. More cession Act) it is tempting to have recourse to the problematically, if the courts accept that British dictum that “where the law and the facts collide, law alone decides matters of royal succession it is the law which must be brought into confor- for Canada, or that Canada remains under the mity with the facts.”38 Although the legality and sovereignty of the British Crown owing to the constitutionality of the Succession Act are quite preamble of the Constitution Act, 1867, then this problematic, the fact is that this statute repre- interpretation raises the issue of how a transition sents an economical way of preserving the per- to a republican constitution in the United King- sonal union between the Crowns of Canada and dom would aff ect Canada. Although it is high the United Kingdom – one that avoids a consti- unlikely, should this ever occur, the very con- tutional amendment and challenges to the law stitutional amending process that the Succession of succession under the Charter of Rights and Act is meant to avoid could be triggered by the

Constitutional Forum constitutionnel 23 legal logic that underpins it. Hence, although it Execution of Deeds and Documents by or on would surely take time and eff ort, it would argu- Behalf of Bodies Corporate (: Ministry of ably be preferable for the courts to acknowledge Justice, 1998) at 26, online: Th e Law Commission that royal succession is a matter of Canadian law [Law Commission]. 6 Industry Canada, “Corporate and Insolvency Law Policy: Corporations Sole,” online: . Notes 7 Law Commission, supra note 5. 8 Peter Hogg, “Th e Crown,” Constitutional Law * Philippe Lagassé is an associate professor of public of Canada. 5th ed (Toronto: Th omson Reuters, and international aff airs at the University of 2012): 10-1 to 10-2 [Hogg Constitutional]; R v Ottawa. James W.J. Bowden is an M.A. candidate Zornes, [1923] SCR 257(QL); Founders Square Ltd at the University of Ottawa. v Nova Scotia (Attorney General), 175 NSR (2d) 1 Succession to the Th rone Act, 2013, SC 2013, c 6, 391 at para 5 (QL), 33 CPC (4th) 202; Founders Preamble. Square Ltd v Nova Scotia (Attorney General), 2001 2 Canada, Standing Senate Committee on Legal NSCA 49 at para 88, 192 NSR (2d) 127; R v British and Constitutional Aff airs, Proceedings, 41st Columbia, 1992 CanLII 164 (BC SC) at 5, ) 66 Parliament, 1st Sess, No 32 (20 March 2013) BCLR (2d) 84 (QL); Rochon (Litigation Guardian (Benoit Pelletier); Robert E Hawkins, “‘Th e of) v British Columbia, 2007 BCSC 1060 at para 19, Monarch is Dead; Long Live the Monarch’: [2007] BCJ No 1634; Melnyk v Wiwchar, [2007] Canada’s Assent to Amending the Rules of SKQB 118 para 9, 295 Sask R 125; Th e Queen v Th e Succession” (2013) 7 Journal of Parliamentary and Canadian Broadcasting Corporation, 1958 CanLII Political Law [Hawkins]; Peter Hogg, “Succession 14 (ON CA) at paras 60-61, [1958] OR 55-85 (QL); to the Th rone” (2014) 33 NJCL [forthcoming Irving Shipyard Inc v Canada (Attorney General), in 2014] [Hogg Succession] ; Canada, Standing 2009 FCA 116 at para. 21, 314 DLR (4th) 340; Senate Committee on Legal and Constitutional Montana Band v Canada (TD), [1998] 2 FC 3, Aff airs, Proceedings, 41st Parliament, 1st Sess, No [1997] FCJ No 1486. 32 (20 March 2013) (Submission, Mark Walters’ 9 McAteer et al v Attorney General of Canada, 2013 written submission on legal and constitutional ONSC 5895 at paras 16-18, 20, 60, 62, 65, 290 CRR aff airs concerning bill C-53, 5 March 2013). (2d) 332 [McAteer]. 3 Anne Twomey, “Th e royal succession and 10 Canada, Law Reform Commission of Canada, de-patriating the Canadian Constitution,” Working Paper 40: Th e Legal Status of the Federal Constitutional Critique (4 February 2013), online: Administration (Ottawa: 1985) at 6. Th e University of Sydney . 12 Hogg Constitutional, supra note 5. 4 Garry Toff oli, “Is Th ere a Canadian Law of 13 Th omas Hobbes, Leviathan: Or Th e Matter, Forme Succession and Is Th ere a Canadian Process and Power of a Commonwealth Ecclesiasticall and of Amendment?” (9 February 2013), online: Civil, ed Edwin Curley (Cambridge, MA: Hackett Canadian Royal Heritage Trust

24 Volume 23, Number 1, 2014 regulates the conduct of persons within Canada,— legislation.govt.nz/bill/government/2013/0099/ in the instant case, Th e Lord’s Day Act,—could latest/DLM5025805.html>. have no application to natural persons outside 28 Austl, Commonwealth, Council of Australian of Canada and therefore would not apply to Her Governments, COAG Communique (Canberra: Majesty in her capacity as a natural person because 19 April 2013) at 4, online: Council of Australian in that capacity she is outside of Canada. Th e legal Governments fi ction which recognizes this duality of persons . in Her Majesty must also recognize that in her 29 Succession to the Crown 2013 (Qld), Schedule 1. capacity as a corporation sole Her Majesty at all 30 JR Mallory, Th e Structure of Canadian Government times is in every part of her realm. In those parts (Toronto: Macmillan, 1971) at 34-36. of her realm in which she is not physically present 31 House of Commons Debates (Hansard), 18th Parl, she is represented by her constitutional agents.” 2nd Sess, Vol 1 (19 January 1947) at 80 (Hon Ernest 16 Blackstone, supra note 5 at 469. Lapointe).; House of Commons Debates (Hansard), 17 Th e British Crown emerged as a corporation 18th Parl, 2nd Sess, Vol 1 (19 January 1947) at 67 sole through rather than by act of (Mr Mackenzie King). parliament, and the Crown of Canada inherited 32 House of Commons Debates (Hansard), 18th this characteristic aft er it branched off from the Parl, 2nd Sess, Vol 1 (18 January 1937) at 43 (Mr Imperial Crown upon the passage of the Statute Mackenzie King). of Westminster, 1931 (UK), 22& 23 Geo V, c 4. 33 O’Donohue v Canada, [2003] CanLII 41404 Lordon thus describes them as “non-statutory” (ONSC), [2003] OJ No 2764. corporations sole. See Lordon, supra note 5. 34 Interestingly, this logic would apply to the In contrast, the Governor General of Canada relationship between the Canadian Crown and is a statutory corporation sole by virtue of the the crowns of Canada’s provinces. Th e Queen of Governor General’s Act, RSC 1985, c G-9, and all Quebec, for instance, is and must be the same the provincial legislatures have also all passed laws natural person as the Queen of Canada, because making their provincial Lieutenant Governors the province of Quebec is under the ultimate statutory corporations sole. Th e Governor General sovereign authority of the Crown of Canada. of Canada fi rst became a corporation sole in 1868: On the indivisibility of the Canadian Crown, see “Th e Governor General of Canada […] and his Henri Brun, Guy Tremblay & Eugénie Brouillet, successors shall be a Corporation sole.” An Act Droit Constitutionnel, 5e édition (Cowansville, Respecting the Governor General, the Civil List, and QC: Éditions Yvon Blais, 2008) at 89. the Salaries of certain Public Functionaries, 1868 35 Supra note 23. (UK), 31 Vict, c 33, s 1. 36 Austl, Commonwealth, Australian Constitutional 18 Ernest H Kantorowicz, Th e King’s Two Bodies: A Commission, Final Report of the Constitutional Study in Mediaeval Political Th eology (Princeton: Commission 1988 (Canberra: Australian Princeton University Press, 1957). Government Publishing Service, 1988) at 81, 19 Ibid at 316. online: Th e University of Melbourne ; Sue v Hill, (1999), 199 CLR 462 23 R v Secretary of State for Foreign and Commonwealth at para 93, [1999] HCA 30. Aff airsEx p Indian Association of Alberta,, [1982] 37 Memorandum from Robert Blackburn (November Q.B. 892 (C.A.) at 87 (WL), [1982] 2 WLR 641. 2011) written evidence submitted to the Political 24 Hawkins, supra note 2. and Constitutional Reform Committee on the 25 Canada, Standing Senate Committee on Legal Rules of Royal Succession, online: Parliament and Constitutional Aff airs, Proceedings, 41st UK . Succession, supra note 2. 38 Quentin Skinner, Th e Foundations of Modern 26 Hawkins, supra note 2. Political Th ought: Volume 1, Th e Renaissance 27 New Zealand, Bill 99-2, Royal Succession Bill, 2013, (Cambridge: Cambridge University Press, 2007) online: Parliamentary Council Offi ce

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