The Meaning of Her Majesty in Canadian Law – Part 1

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The Meaning of Her Majesty in Canadian Law – Part 1

Canada uses Her Majesty in the legal sense as meaning all Canadians. Her Majesty is legally present in Canada at all times despite being physically elsewhere. The law does this through a corporation sole. One way to form a corporation sole is being an individual who is holding an office. The law considers individuals holding an office as artificial persons. In contrast, the law treats individuals not holding an office as natural or private persons.

Canada uses Her Majesty in the legal sense as meaning all Canadians. Her Majesty is legally present in Canada at all times despite being physically elsewhere. The law does this through a corporation sole. One way to form a corporation sole is being an individual holding an office. The law considers individuals holding an office as artificial persons. In contrast, the law often considers individuals not holding an office as natural or private persons.

Summary

Canada uses Her Majesty in the legal sense as meaning all Canadians. Her Majesty is legally present in Canada at all times despite being physically elsewhere. The law does this through a corporation sole. One way to form a corporation sole is being an individual holding an office. The law considers individuals holding an office as artificial persons. In contrast, the law often considers individuals not holding an office as natural or private persons.

Her Majesty Represents All Canadians

Canada uses Her Majesty to legally represent all Canadians. The following quote is from page 2 of Discover Canada: The Rights and Responsibilities of Citizenship, which is the only official study guide for Canada’s citizenship test. It says,

“In Canada, we profess our loyalty to a person who represents all Canadians… in our constitutional monarchy, these elements are encompassed by the Sovereign (Queen or King). It is a remarkably simple yet powerful symbol: Canada is personified by the Sovereign just as the Sovereign is personified by Canada.”

But how can Her Majesty legally personify Canada if she is physically in England most of the time?

How Her Majesty Can be in Two Places at Once

The Star Trek transporter is a fictional device that allows for almost instantaneous transportation. The law goes one step better: it allows for instant teleportation so Her Majesty is legally in two or more places at the same time!

Her Majesty as Two Legal Persons

Paragraph 35 of the 1957 Ontario Court of Appeal case, The Queen v. The Canadian Broadcasting Corporation, shows how the Queen is legally in two or more places at the same time:

35 It is important that at the outset we should understand the connotation of the words “Her Majesty” in the Act. When Parliament names Her Majesty in a statute it means Her Majesty, not in her capacity as a natural person but in her capacity as a corporation sole, a persona ficta (Latin for artificial person). In Salmond on Jurisprudence, 9th Ed. at p. 444, the author refers to this dual capacity as follows:

He (the King) has a double capacity, being not only a natural person but a body politic, that is to say, a corporation sole. The visible wearer of the crown is merely the living representative and agent for the time being of this invisible and underlying persona ficta, in whom by our law the powers and prerogatives of the government of this realm are vested.

The Two Legal Persons who are Legally Indivisible

The Queen v. The Canadian Broadcasting Corporation continues at paragraph 36:

36 It is in that capacity that the Queen as sovereign, exercises her executive powers. The statute that regulates the conduct of persons within Canada, – in the instant case, The Lord’s Day Act, – could have no application to natural persons outside of Canada and therefore would not apply to Her Majesty in her capacity as a natural person because in that capacity she is outside of Canada.

The legal fiction which recognizes this duality of persons in Her Majesty must also recognize that in her capacity as a corporation sole Her Majesty at all times is in every part of her realm. In those parts of her realm in which she is not physically present she is represented by her constitutional agents.

Her Majesty’s Constitutional Agents

Her Majesty’s constitutional agents are individuals holding the offices of the Governor General and of the Provinces’ Lieutenant Governors. Individuals holding these offices wield the title, power and duties of these offices. This is because the office and the office holder are legally indivisible.

Conceptually Divisible but Legally Indivisible

Peter Boyce’s book, The Queen’s Other Realms, says the office and the office holder, while conceptually divisible, are legally indivisible. This means the law also considers the property of the office and the property of the office-holder as one and the same. What belongs to the holder of the office also belongs to the office itself.

Apu’s Theory Discusses Corporations Sole

The law seems to ignore corporations sole. Apu’s Theory discusses corporations sole in Chapter 7, Corporations: Aggregate or Sole, and also in Chapter 8, Corporations Sole: Formed by Filling an Office.

Part 2

Part 2 will cover:

  • Her Majesty and Crown property, such as Crown land
  • Some public servants are no longer swearing an oath to Her Majesty
  • The true meaning of Her Majesty’s office holder’s loyalty to the Crown
  • Why Canadians can also have dual legal capacity through holding an office

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