Philippe Lagassé is associate professor and Barton Chair at Carleton University.
There has been a demise of the Crown: Queen Elizabeth II is dead. Charles is now King, not only of the United Kingdom, but of Canada and the Crown’s other realms.
Charles’s coronation will not take place for some time, and an Accession Council has not yet met to recognize the new monarch, but these are ceremonial events, not legal ones. Accession happens automatically and instantaneously; the coronation and Accession Council will merely formalize what has already occurred.
Since the Canadian Constitution is silent about royal succession and accession, it is worth reiterating how we know that Charles is King of Canada and what this entails in Canadian law.
Canada follows British laws of royal succession. Canadian courts have held that Canada’s monarch is determined by British law, owing to a “principle of symmetry.” Accordingly, Charles became King of Canada because he was the successor to the British throne under British law. Yet the written laws of succession only tell us so much. To better understand how succession and accession operate, we must look at the nature of the Crown in the Constitution and at common law.
The Crown serves as Canada’s concept of the state. It is the source of executive and judicial power, and it is one part of Parliament and provincial legislatures. The sovereign authority of the Crown is exercised through different capacities, as per Canadian federalism and the separation of powers. Hence, we can differentiate between Her Majesty in right of Canada and Her Majesty in right of Ontario, and we know that the Crown-in-Council exercises executive authority, while the Crown-in-Parliament is the legislative power.
The Crown, moreover, is understood to be a legal person. The attributes of this legal personality explain how accession and succession work.
British and Canadian courts have recognized that the Crown is a “non-statutory corporation sole,” which means that the Crown is a fictional person with two capacities: one legal, the other natural. The legal personality of the Crown is immortal and unchanging. No matter who wears the crown, the legal personality remains the same in law. Conversely, the natural capacity is the mortal person who serves as the monarch.
As a corporation sole, these legal and natural capacities are connected as an office. The Crown is an official legal personality with various powers and functions, and the office is held by a natural person who exercises these powers and performs these functions.
Treating the Crown as a corporate office ensures that all mentions of the sovereign in law and in the Constitution refer to the enduring legal personality. In practical terms, this means that legal or constitutional references to Her Majesty, the Queen, and in some cases Queen Elizabeth II apply to and bind her successor.
Similarly, there is no need to rewrite laws, renegotiate agreements, or transfer state property when a monarch passes, because the Crown’s legal capacity remains unchanged. Canada’s Interpretation Act, furthermore, provides that the demise of the Crown does not affect any office-holders, oaths of allegiance, or court proceedings. The Parliament of Canada Act also specifies that the federal legislature will not be dissolved following the demise, as occurred historically. Similar provisions are found in provincial statutes.
King Charles, therefore, has the same legal personality that Queen Elizabeth II did. Given that the Crown is both our concept of the state, the executive power, and one part of Parliament, having this legal personality in place brings continuity and stability to government. Equally important, any claims that Charles is not King because the Canadian Constitution refers to a Queen, or because Canadian laws do not yet recognize him as such, overlook how the common law treats the Crown.
We know Charles is King of Canada, then, owing to the laws of royal succession in the United Kingdom and the immediate accession to the throne provided by common law. Canada does not need to change any legislation, update any agreements, or take any other legal steps to recognize Charles as King or bind the Crown in right of Canada or a province.
In fact, the only question now is whether the Canadian Privy Council will be assembled to formally recognize our new monarch, whether Canada will send representatives to the British Accession Council, and whether the symbolism of the Canadian Crown, such as coinage, will be eventually updated to include the new King.
Regardless, the legal matter is settled: The Queen is dead; long live the King!
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