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Two law professors from Quebec have sought to challenge the Canadian legislation that would allow the first-born child to ascend the throne, regardless of gender.
In 2011, the heads of government of the 16 Commonwealth countries that share Queen Elizabeth II as head of state announced that they had agreed to change the law relating to the royal succession to do away with male-preference primogeniture. Although the British Parliament passed legislation to implement the changes last May, the changes will not actually take effect until the 15 other Commonwealth Realms have agreed to them as well.
This is necessary because the 16 Commonwealth Realms technically have their own separate monarchies. So in Canada, for example, Elizabeth II reigns as ‘Queen of Canada,’ not ‘Queen of the United Kingdom.’ In order to maintain the personal union between the various Crowns, changes to the law of succession need to be agreed by all of the realms.
Rather than introduce a separate version of the British Succession to the Crown Act, the Canadian government chose to pass a short bill that essentially said “we accept the British legislation.” However, in 1982, the British Parliament surrendered its remaining legislative authority over Canada (section 2 of the UK’s Canada Act explicitly states that “No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law”).
Genevieve Motard and Patrick Taillon, two law professors at Laval University in Quebec, have asked the Quebec Superior Court to strike down the federal Parliament’s Succession to the Throne Act on the grounds that it is unconstitutional. They claim that changes to the royal succession require a constitutional amendment, and under section 41 of Canada’s Constitution Act 1982, constitutional amendments touching “the office of the Queen” require the unanimous consent of the provinces as well as the federal government.
The Canadian government’s official view is that a constitutional amendment is not necessary to change the rules of succession. In a statement accompanying the bill’s introduction back in January, the Minister for Canadian Heritage, James Moore, said that “[t]he laws governing succession are UK law and are not part of Canada’s constitution.” Furthermore, he claimed that the Constitution Act’s reference to “the office of the Queen” only referred to her “constitutional status, powers and rights in Canada.”
“Neither the ban on the marriages of heirs to Roman Catholics, nor the common law governing male preference primogeniture, can properly be said to be royal powers or prerogatives in Canada,” he continued.
His sentiments were echoed by Andrew Heard, a professor of political science at Simon Fraser University, who was quoted in Toronto’s National Post as saying that “whoever is the sovereign in the U.K. acts as the sovereign in Canada.”
But other academics disagree. Writing in Maclean’s, Philippe Lagassé, an assistant professor of public and international affairs at the University of Ottawa, emphasized that the British and Canadian Crowns are separate entities. “Any claim that Canada and Britain share a Crown in the legal or constitutional sense is therefore incompatible with the complete sovereignty that Canada achieved in 1982.”
Lagassé argued that, because the Canadian Crown is a corporation sole, references to “the office of the Queen extends not only to the current office holder, but to those who will succeed to the office.”
This will not be the first time that royal succession-related issues have come before the Canadian courts. In 2002, a politician named Tony O’Donohue tried to have the ban on Roman Catholic monarchs declared unconstitutional, but the Ontario Superior Court held that the law of succession was also part of Canada’s constitutional settlement, and so the Charter of Rights and Freedoms could not take precedence over it. Although a higher court could ultimately disagree with the Ontario Superior Court’s findings, the ruling suggests that the courts might take a dim view of the federal government’s claim that the law of succession is not part of the Constitution.
If the Canada’s Succession to the Throne Act is struck down and Canada is forced to seek a constitutional amendment to change the law of succession, the process might get bogged down by political squabbling between separatist-minded Quebec and the rest of Canada. And if the end result is that Canada cannot agree to the changes, the other Commonwealth Realms might be forced to scrap them as well in order to preserve the personal unions between their respective Crowns.
Photo Courtesy of Cory Gurman