Professor Philippe Lagassé and I have co-authored “Succeeding to the Canadian Throne” for the Ottawa Citizen. In this column, we explain why the Crown of Canada is a hereditary corporation sole and why succession to the Crown falls under the “Office of Queen,” and therefore under the unanimity formula under s.41(a) of the Constitution Act, 1982.
Succeeding to the Canadian Throne
James W.J. Bowden and Philippe Lagassé
We learned this week that the Duke and Duchess of Cambridge are expecting their first child. The news was greeted with the usual mix of republican derision, monarchist fawning, and celebrity gossiping. In governments across the Commonwealth, a more serious discussion has been taking place. News of the ‘royal baby’ has highlighted the importance of changing the rules of succession.
At the 2011 meeting of the Commonwealth heads of government, member states agreed that the rules of succession should be amended to repeal the penalty of marriage to a Catholic and replace the principle of male primogeniture with equal (i.e. gender-neutral) primogeniture. This will ensure that that if royal couple’s first child is female, she will be third in line for the succession, regardless of whether they have a son in the future.
Since the Glorious Revolution of 1688, the English Parliament – rather than the monarch – has controlled the line of succession to the throne through legislation, such as the Act of Settlement, 1701. There is therefore no question that the British Parliament must enact a law to affect the rules of succession. But what of Canada? Must we do the same? Indeed, we must, a reality that dispels any notion that the Crown is a mere symbol of Canada’s history as a British colony, and that highlights how deeply entrenched the Crown is in the Canadian constitution.
The Statute of Westminster, 1931 made the British Crown divisible by establishing the Crowns of Canada, Australia, New Zealand, etc. as legally and constitutionally separate corporations. As such, the “British monarch” has not been Canada’s head of state since 1931. Although the 16 independent Crowns are represented by the same individual through a “personal union”, legally speaking they each have distinct Sovereigns as their head of state.
One woman, Elizabeth Windsor, holds sixteen different offices of Queen, embodying sixteen distinct sovereign authorities. She is separately the Queen of the United Kingdom, the Queen of Canada, and the Queen of fourteen other realms. As a result, each state whose unique Crown is personified by their particular Queen must change their line of succession pursuant to their own laws and/or constitutions.
By most accounts, it will be relatively simple for Canada to change the rules of succession to the Canadian Crown. Parliament will enact a bill and the matter will be settled – at least that’s the hope. Unfortunately, there are good reasons to think that it might be more complex.
In the 2003 O’Donohue case, Justice Rouleau ruled that the Act of Settlement forms part of the Constitution of Canada, since as Peter Hogg noted, “The rules of succession to the throne were essential to the proper functioning of the system of government.” A change to the rules of succession necessarily amends the constitution, whether implicitly or explicitly. The question is whether the federal Parliament alone can do so without consulting the provinces.
According to s.41(a) of the Constitution Act, 1982, any amendment to the “office of the Queen” requires the unanimous consent of Parliament and the provincial legislatures. Arguably, the succession to the throne touches on the office of the Queen because the Crown is a corporation sole.
The Crown as corporation sole means that the office and officer-holder, Crown and Queen, are conceptually divisible but legally indivisible. The office cannot exist without the office-holder; the hereditary principle of automatic succession ensures that the Crown immediately transfers to the next person in the line of succession upon the demise of the Sovereign. The Crown is never disembodied, as it were.
Succession must therefore pertain to the office of the Queen because any change to the rules that govern the line of succession affects who will one day personify the Crown, and because the office and office-holder are one and the same under the law.
Of course, admitting that succession falls under s.41(a) invites all sorts of unwanted political complications. It would allow any provincial legislature to block or slow a change to Canada’s rule of succession, and there is one particularly antimonarchical provincial government that might see this as a perfect occasion to create controversy.
Thankfully, this is unlikely to happen and would not cause all that much harm in the short term, since the Prince of Wales and Duke of Cambridge will be next in line for the throne regardless. What’s more, any legislature that attempted to stonewall such a self-evident and pro forma constitutional amendment would look rather crass. And if the aim is to undermine the monarchy, opposing the change would have the ironic effect of highlighting the centrality of the Crown in the Canadian constitution.
James W.J. Bowden and Philippe Lagassé are, respectively, an MA candidate and assistant professor at the University of Ottawa.
- The Line of Succession: Coordinating Amendments to the Act of Settlement Across 16 Realms
- The Maple Crown and the Commonwealth Realms
- Why Altering the Succession Requires a Constitutional Amendment
- The Queen’s Annual Christmas Message
- Succeeding to the Australian Throne
- The Monarchist League of Canada on Succession to the Crown
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I agree that the Succession to the Throne Act, 2013, is unconstitutional both because (1) it purports to assent to–and thereby incorporate into Canadian law–a law enacted by the Parliament of the United Kingdom, a foreign power; and, (2) it is not effectuated by counterpart enactments by the Legislative Assemblies of the ten Provinces pursuant to s.41(a) of the Constitution Act, 1982. And, when Motard and Taillon’s lawsuit gets certiorari from the Quebec Superior Court to the Supreme Court of Canada, that it will be, inter alia, on these bases that the Court will hold the Act unconstitutional.
But the wrinkle thrown into the mix is the opinion handed down by the Ontario Superior Court in O’Donohue v. Canada, 2003 CanLII 41404 (ON SC). Rouleau, J., writing for the Court, seems to have held, albeit in dicta: “[t]he preamble to the Constitution Act, 1867, (U.K.) 30 & 31 Victoria, c.3, as amended, provides as follows:
Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom … ” O’Donohue v. Canada, 2003 CanLII 41404 (ON SC), at 20.
“[t]his portion of the preamble confirms not only that Canada is a constitutional monarchy, but also that Canada is united under the Crown of the United Kingdom of Great Britain. A constitutional monarchy, where the monarch is shared with the United Kingdom and other Commonwealth countries, is, in my view, at the root of our constitutional structure.” O’Donohue v. Canada, 2003 CanLII 41404 (ON SC), at 21.
No one, of course, can debate the words of the Preamble within the Constitution Act, 1867. And, in fairness to Justice Rouleau, he does not ignore the significance of the Statute of Westminster 1931, elsewhere in the opinion.
But my question is, why did O’Donohue not hold that that the lawful successor to the Crown of the United Kingdom of Great Britain is the Crown of Canada? Even the second sentence seems valid, that “[a] constitutional monarchy, where the monarch is shared with the United Kingdom and other Commonwealth countries, is, in my view, at the root of our constitutional structure”.
Legal scholars reading O’Donohue might, rationally and logically, conclude that the present (and by that I mean the post-1982) Crown of the United Kingdom of Great Britain and Northern Ireland holds currency in Canada. And, that when “the Crown in Right of Canada” or “the Crown in Right of Ontario” is referred to, the word “Crown”, in that context, means “the Crown of the United Kingdom of Great Britain and Northern Ireland”, when–legally–it obviously does not and cannot.
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