Uneasy lies the head that wears the Crown | Heather MacIvor

By Heather MacIvor

Law360 Canada (September 9, 2022, 3:07 PM EDT) --
Heather MacIvor
Heather MacIvor
The death of Queen Elizabeth II is a sad milestone for everyone (myself included) who admired her strength and relished her occasional displays of mischievous wit. For 70 years, she reigned over an increasingly divided country (and an ever more fractious Commonwealth) without embroiling herself in political controversy — an astonishing feat of discretion and self-discipline. The Queen accepted the constraints of her constitutional role as the embodiment of the Crown. It is not entirely clear that King Charles III will prove equally restrained.

Since the Middle Ages, European monarchs have been said to have “two bodies:” a natural or human body, and a symbolic sovereign body — quite literally, a “body politic.” The human body dies, but the sovereignty is immortal. The Crown passes to the lawful successor at the very moment of the monarch’s demise, hence the phrase “the King (or Queen) is dead; long live the King.” The formal accession and coronation merely confirm and make public a transfer of sovereignty which has already taken place in private.

The doctrine of the imperishable sovereign body is inherent in the English common law and codified in Canadian statutes. For example, the federal Interpretation Act provides (in s. 46) that “a demise of the Crown” does not affect the validity of public appointments or stay court proceedings where the Crown is a party. Similarly, Quebec’s Act respecting the demise of the Crown states that the death of the monarch does not terminate or interrupt “the activities of the Parliament of Québec, the Government or the courts.”

The Quebec statute also provides that “Oaths of allegiance or office need not be retaken due to the demise of the Crown.” Such oaths remain valid and binding, notwithstanding their reference to a previous monarch, precisely because of the distinction between the human being and the Crown that he or she embodies. For the past 70 years, everyone wishing to become a citizen of Canada had to swear or affirm that they would “be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, [and] Her Heirs and Successors.” The requirement to swear fealty to the reigning monarch does not violate the Charter guarantees of religious and expressive freedom or the right to equality. As the Ontario Court of Appeal explained, “Viewing the oath to the Queen as an oath to an individual is disconnected from the reality of the Queen's role in Canada today. … The oath to the Queen of Canada is an oath to our form of government, as symbolized by the Queen as the apex of our Canadian parliamentary system of constitutional monarchy.” (McAteer v. Canada (Attorney General) [2014] O.J. No. 3728 at paras. 50 and 52.)

The doctrine of the sovereign body also obviates the need to amend thousands of laws beginning with the phrase “Her Majesty, by and with the advice and consent of [the relevant legislative body] enacts as follows.” All Canadian jurisdictions have laws similar to s. 87 of Ontario’s Legislation Act, 2006: “’Her Majesty’, ‘His Majesty’, ‘the Queen’, ‘the King’ or ‘the Crown’ means the Sovereign of the United Kingdom, Canada and Her other Realms and Territories, and Head of the Commonwealth.” This is not to diminish the impact of the change in nomenclature: while the home pages of the superior courts in four provinces changed from “Queen’s Bench” to “King’s Bench” in less than 24 hours, other adjustments will take considerably longer. (Luckily, it appears that King Charles III will be succeeded by his older son and grandson, so we won’t have to switch back.)

The late Queen fully grasped the distinction between herself as a human being and the Crown which she embodied. Whatever her own personal views on the issues of the day might have been, she rarely if ever expressed them publicly. She understood the limits of her constitutional role. In her weekly private audiences with successive British prime ministers, she may well have exercised her conventional rights to advise, to encourage and to warn. But as far as we know, she never threatened to withhold Royal Assent to a Bill with which she personally disagreed. Nor did she openly question the wisdom of her ministers or their policies. While she was manifestly intelligent, sensible and exceptionally well-informed — attributes sadly lacking in some of the leaders who acted in her name — she did not openly attempt to impose her preferences or override their judgment.

The personality of King Charles III is strikingly different. He may share his late mother’s sense of duty and service, but he has sometimes lacked her discretion and her deference to those who were duly elected to conduct the people’s business. In the early 2000s he wrote a series of letters to British cabinet ministers, known as the “black spider memos” because of the Prince’s spiky handwriting. The letters were eventually published by The Guardian newspaper in 2015, following a lengthy battle with the British government. (See R. (on the application of Evans) and another v. Attorney General [2015] UKSC 21.) The then Attorney General had overturned a decision by the Upper Tribunal appointed under the Freedom of Information Act 2000 to disclose some of the letters. In his stated reasons for blocking the release of the letters, the Attorney General observed that anyone reading them would infer that the Prince of Wales “disagree[d] with government policy. Any such perception would be seriously damaging to his role as future Monarch, because if he forfeits his position of political neutrality as heir to the Throne, he cannot easily recover it when he is King.”

Well, quite. The letters show a sustained pattern of direct and often insistent lobbying by the then Prince of Wales. His opinions are stated explicitly and often at some length, and he expresses impatience with various perceived obstacles to his favoured outcomes. His advocacy for rural and agricultural interests is particularly forceful and detailed. All in all, the black spider memos depict a stubborn and somewhat arrogant personality, certain of his own intellectual superiority and rather puzzled that anyone would disagree with him.

Of all the causes he espoused as Prince of Wales, Charles’ environmentalism is the most significant. His decades-long campaign to raise the alarm about pollution and climate change, formerly ridiculed as “cranky,” is now widely and justly applauded. It may seem fortuitous that he has become King at the very moment when the ravages of climate change have forced an environmental reckoning. Cometh the hour, cometh the man.

But the new King’s passionate environmental advocacy also raises constitutional risks. On Sept. 8, just before Buckingham Palace let it be known that the Queen was dying, newly appointed British PM Liz Truss announced her energy policy in the House of Commons. As part of her efforts to reduce the cost of natural gas to British consumers, Truss pledged to resume fracking on British soil. People living next to shale gas deposits are strongly opposed to fracking, which was halted in 2019 after it triggered earth tremors strong enough to damage nearby homes.

Aside from the greenhouse gas implications, fracking could disrupt rural communities, contaminate land, water and crops and weaken heritage buildings. It’s hard to imagine a policy more precisely tailored to offend King Charles III. What would he do if he were asked to give Royal Assent to a pro-fracking bill? How would he react if fracking were resumed by executive decree? Would he act as the neutral embodiment of the Crown, as his mother did? Or would he allow his personal certainties to override his constitutional duties? Which of the King’s “two bodies” would prevail?

In his first speech as King, Charles solemnly promised to uphold the principles of the British constitution. There is no reason to question the sincerity of that pledge. But there is every reason to expect that it will be sorely tested, perhaps sooner rather than later.

Heather MacIvor is a content development associate at LexisNexis Canada. She is co-author, with the Honourable Stephen Goudge, of Halsbury’s Laws of Canada — Public Inquiries (2019) and Commissions of Inquiry (2019).

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, 
The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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