Thursday Thinkpiece

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Royal Succession and the Canadian Crown as a Corporation Sole: A Critique of Canada’s Succession to the Throne Act, 2013
Philippe Lagassé and James W.J. Bowden
Constitutional Forum constitutionnel Volume 23, Number 1, 2014

(Excerpt: pp. 19, 20)

I. The Canadian Crown as Corporation Sole

. . . .

Perpetuity and seamless succession, in fact, were the underlying motives behind the gradual establishment of the Sovereign as a corporation sole. Under early English feudalism, there was no need to distinguish between the monarch as a natural person and legal entity. The authorities and rights of the monarch were personal, as were the ties of fidelity and service that bound individuals to the monarch, and vice versa. As the English state and system of laws grew more complex, it became necessary to bring greater stability and continuity to the Crown. This was done by distinguishing between the monarch in a personal capacity, on the one hand, and in a political capacity, on the other.[17] Known as the doctrine of the “king’s two bodies,” the conceptual separation between the monarch’s “body politic” and “body natural” allowed the authority of the Crown and royal dignity to be preserved and protected during successions. While the monarch’s natural body could die, the body politic could not. Although the two bodies doctrine would later be used to distinguish between the property monarchs held as the Sovereign opposed to a natural person, the original, and still essential, purpose of making the Crown a corporation sole was to fuse monarchical predecessors and successors into a single, immortal legal personality.[18] As Kantorowicz demonstrated, the Crown as a corporation originally developed as a means of ensuring automatic hereditary succession upon the death of one reigning Sovereign and the accession of another, which in turn created a perpetual legal personality.[19] The continuity of peace, order, and good government depended upon the “rex qui nunquam moritur, a ‘king that never dies.’”[20]

In a Canadian context, the corporate character of the Crown serves another purpose as well: it allows the Crown of Canada, the legal person known as Her Majesty in Right of Canada, to be separate and distinct from the British Crown, the legal person known as Her Majesty in Right of the United Kingdom, while maintaining the same natural person the holder of both monarchical offices. Thus, when it is said that Canada and the United Kingdom share the same Queen, this is a reference to the monarch as a natural person, not their distinct Sovereigns as legal personalities. Canada and the United Kingdom share Queen Elizabeth II as monarch in a personal union, not a legal one; the Queen as a natural person holds the distinct offices of the Canadian and British Sovereigns, but the legal separation of those offices, and therefore of the Canadian and British Crowns, is not erased as a consequence. Insofar as the Canadian and British Crowns are distinct corporations sole, Canada and the United Kingdom are able to maintain that their Sovereigns are separate legal persons while having the same natural person as the holder of their respect monarchical offices.[21]

The significance of this point should not be understated. Because the Crown serves as the concept of the state in Canada and the Canadian state is the legal person called Her Majesty in Right of Canada,[22] stating that Canada and the United Kingdom have the same Sovereign as a legal person, or that Canada and the United Kingdom are under a common Crown, implies that the two countries are not separate and distinct sovereign states. Stated plainly, if Her Majesty in Right of Canada and Her Majesty in Right of the United Kingdom are the same legal person, then Canada and the United Kingdom are the same state. Indeed, it is for this reason that in 1981 the English Court of Appeal, in answering the question of whether Canada or the United Kingdom was bound by First Nations treaties, were careful to note that the Crowns of Canada and the United Kingdom had been multiplied after the Imperial Conference of 1926, and that “In matters of law and government the Queen of the United Kingdom is entirely independent and distinct from the Queen of Canada.”[23]

For Canada, therefore, the Sovereign as a corporation sole not only ensures the perpetuity of the state and governing authority, but also provides the legal and constitutional logic behind the Canadian state’s independence from the United Kingdom. Canada is only a de jure independent and sovereign state if the Crown of Canada is a corporation sole separate and distinct from the Crown of the United Kingdom.

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17 The British Crown emerged as a corporation sole through common law rather than by act of parliament, and the Crown of Canada inherited this characteristic after it branched off from the Imperial Crown upon the passage of the Statute of Westminster, 1931 (UK), 22& 23 Geo V, c 4. Lordon thus describes them as “non-statutory” corporations sole. See Lordon, supra note 5. In contrast, the Governor General of Canada is a statutory corporation sole by virtue of the Governor General’s Act, RSC 1985, c G-9, and all the provincial legislatures have also all passed laws making their provincial Lieutenant Governors statutory corporations sole. The Governor General of Canada first became a corporation sole in 1868: “The Governor General of Canada […] and his successors shall be a Corporation sole.” An Act Respecting the Governor General, the Civil List, and the Salaries of certain Public Functionaries, 1868 (UK), 31 Vict, c 33, s 1.

18 Ernest H Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton: Princeton University Press, 1957).

19 Ibid at 316.

20 Ibid.

21 Supra, note 9 at paras 60, 63, 65.

22 Crown Liability and Proceedings Act, RSC 1985, c
C-50, s 2.

23 R v Secretary of State for Foreign and Commonwealth AffairsEx p Indian Association of Alberta,, [1982] Q.B. 892 (C.A.) at 87 (WL), [1982] 2 WLR 641.