In The Name Of Her Majesty’s Criminal Law

Monday is Her Majesty Queen Elizabeth II’s 60th anniversary of her coronation. The Diamond Jubilee will be celebrated with yearlong events throughout the Commonwealth, including Canada. Canada still has close ties to the Monarchy as the titular Head of State. Our criminal law, in particular, reflects these ties through the stylistic form, or style of cause, used when charging an offender in the name of the Her Majesty the Queen or “Regina.”

There is an understanding in legal circles the Queen’s position in criminal law is purely symbolic: in reality it is the State or Federal Government, through the authority of s.91(27) of the Constitution Act, 1867, has the power to create and enforce criminal law. Despite this, there are a number of areas in the Criminal Code, which use “Her Majesty” as an anchor, both procedurally and substantively.

Going beyond the style of cause, which of course changes to “Rex” when a male Monarch ascends the throne, is the numerous references in the Forms of the Criminal Code. For example, most Orders under the Code, such as an Order to take bodily substances for a DNA analysis, commands, in “Her Majesty’s name,” the attendance of the person named in the Order for the purposes of taking the sample. So too, when an accused is summoned to appear in court, she is commanded to do so in “Her Majesty’s name.”

The police are also commanded in “Her Majesty’s name,” when executing an arrest warrant, to “forthwith” arrest an accused and bring her before the court “to be dealt with according to law.” If bail is denied, “Her Majesty” guarantees safe passage: the police are commanded in “Her Majesty’s name” to safely convey the prisoner into custody.

The troubling part is when the accused is granted bail or is released by an officer in charge. In those instances, the accused must:

acknowledge that [her or she] owe[s] $ (not exceeding $500) to Her Majesty the Queen and deposit herewith (money or other valuable security not exceeding in amount or value $500) to be forfeited if I fail to attend court as hereinafter required.

This leads one to wonder: how much money is owed to Her Majesty? Even though the forfeited money is actually deposited in the Provincial Treasury, and not actually deposited into Her Majesty’s bank account, the hope is the government is using the funds to maintain the criminal justice system. Of course, when the accused fails to pay a fine, there is no longer a Debtor’s Prison, per se, but a sentencing court may impose imprisonment in default of payment of a fine.

Outside of criminal procedure, Her Majesty is a “person” under the criminal law. Specifically, she can be “alarmed,” sold “defective stores” be defrauded, and misrepresented. A person can commit High Treason, one of the most serious offences in the Criminal Code and historically punishable by death, for hurting or causing the death of Her Majesty. Furthermore, a mutinous or traitorous member of the Armed Forces can criminally disappoint Her Majesty.

Despite these possibly criminal acts against Her Majesty, she may, in her munificence,under s. 748 of the Criminal Code:

extend the royal mercy to a person who is sentenced to imprisonment under the authority of an Act of Parliament, even if the person is imprisoned for failure to pay money to another person.

It seems we do need Her Majesty after all.