The Harper Government’s (Probably Unconstitutional) Bill on Succession to the Crown

The Parliament of Canada has just updated the Notice Paper of the House of Commons. The Minister of Justice will soon table a bill relating to succession to the Crown called An Act to assent to alterations in the law touching the Succession to the Throne.

The wording of the title of the bill alone confirms the statements of the British House of Commons Library and the spokesman from the Privy Council Office: the Harper Government believes that the Statute of Westminster somehow still allows Canada to signal its “assent” to British legislation, even though Canada repealed s.4 and s.7(1) of that Act upon Patriation in 1982.

If Canada merely “assents to” a British law, this bill will severely undermine the Crown of Canada over the long term. First and foremost, if the Crown of Canada is not a separate corporation sole from the Crown of the United Kingdom, then Canada is not an independent, sovereign country. The Harper Government’s method of clinging to an inoperative provision (section 4) and a defunct, moot preamble of the Statute of Westminster will turn Canada into a Crown colony once again. Second, if succession falls outside of the Constitution of Canada as the Harper Government has claimed, then the succession to the Crown immediately becomes subject to the Charter. Someone could then easily challenge the Protestant succession, or even the hereditary principle itself, in court as “discrimination.” And of course, any challenge to the hereditary principle undermines constitutional monarchy itself, because it depends upon hereditary succession, as prescribed by law.

I shall provide a full analysis after the Parliament of Canada has uploaded a copy of the bill online. For now, I would direct you to my previous posts on the subject, particularly, Why Altering the Succession Requires a Constitutional Amendment.

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About J.W.J. Bowden

My area of academic expertise lies in Canadian political institutions, especially the Crown, political executive, and conventions of Responsible Government; since 2011, I have made a valuable contribution to the scholarship by having been published and cited extensively. I’m also a contributing editor to the Dorchester Review and a member of the editorial board of the Journal of Parliamentary and Political Law.
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7 Responses to The Harper Government’s (Probably Unconstitutional) Bill on Succession to the Crown

  1. Timothy Gassin says:

    Whilst I am not entirely convinced that it is absolutely necessary for the Canadian government to receive the support of the provinces in changing the succession, the method adopted by the Harper government seems dubious.

    Their approach is based on the assumption that there is a single Crown for all of the Commonwealth realms, that the succession can only be determined by the United Kingdom Parliament (albeit with the consent of the other realms), and that legislation passed by Westminster today can have force in Canada. At best, this approach is undignified for a nation that claims to be independent and an equal partner in the Crown with the United Kingdom. At worst, it could leave Canada in a position in which it could fall out of personal union with the other realms, if Canadian courts later found the UK legislation had no effect on the Canadian Crown and that therefore the old succession rules were still in place.

    The provisions of the Statute of Westminster on which the Harper government are relying may still be in force, but I would not like to rely on that. Surely, they would be on safer ground if their legislation stated that Canada assented to the changes being made in the United Kingdom and other realms and then included the same provisions relating to the succession that are found in the UK bill. Therefore, the succession would depend on Canadian not UK legislation, whilst acknowledging that it was to the same effect as the legislation in other realms.

    What has astonished me throughout this whole process has been the highly questionable legal advice that government throughout the Commonwealth realms have been receiving on these changes. This is not just a Canadian problem, as is shown by the current complications in Australia.

    It seem no one at any time from the UK government, which first pushed the changes, or the NZ government, which was left in charge of co-ordinating the change throughout the Commonwealth, bothered to discuss the matter with the Australian states, which unlike Canadian provinces retain a direct link to the Crown. Given that any change to the succession would require their assent, just as much as that of any the national governments of the realms, it is remarkable that they should have announced the changes had received the agreement of all relevant parties before apparently even discussing it with them.

    Equally astonishing has been what has occurred in Australia itself. The Commonwealth government has taken the position that there is a single Crown within Australia and that therefore the succession legislation should be passed by the Commonwealth parliament, albeit with enabling legislation passed in each state. All of the states except Queensland have agreed to this. Queensland insists there are seven separate Crowns in Australia and therefore that separate legislation is needed in each state.

    Both are legitimate positions, as the matter was deliberately not clarified in the Australia Acts, which established the independence of the states from the UK. The reason why it was not clarified was because the states insisted there were multiple Crowns and the Commonwealth that there was only one national Crown. Such a distinction is of great significance in discussing whether the states are sovereign entities in and of themselves. However, it seems that in the years since that the law officers of the various states, except Queensland, have forgotten the position their own states had previously taken and the significance of this and have just accepted what the Commonwealth has told them.

    What all of this seems to reveal is that those giving legal advice to governments throughout the Commonwealth realms have a questionable understanding of their relationship with the Crown and its significance and the constitutional development of the various parts of the Commonwealth.


  2. Vince MacNeil says:

    I admit I was doubtful when I first heard that the government intended to proceed by Act of Parliament, but I am now persuaded they have a very strong, if not unassailable, footing. I don’t want to get into an argument about whether or not the law of Succession to the Canadian Crown ought to involve other countries. There are valid opinions on both sides of that question. Let me simply set out how I see the government’s position having a coherent legal and constitutional basis.

    The Statute of Westminster, except for two sections, but including the preamble that describes the method of changing the Succession, forms part of the Constitution of Canada. (See item 17 in the Schedule to the Constitution Act, 1982.) For brevity’s sake, let’s call this the “assent” method.

    I had the same instinct you did: to look to the amending formula describing a requirement for unanimity in matters relating to “the office of the Queen.” But consider that this provision was created by the same constitutional Act (1982) that formally incorporates the Statute of Westminster in the Constitution of Canada. Consider that both the unanimity formula and the assent method are constitutional provisions, and apply the rule of construction that the specific overrides the general. Since the unanimity formula does not specifically mention the Succession, it must give way to the constitutional provision that does, namely the assent method set out in the preamble to the Statute of Westminster.

    It is also striking, now that I look for it, to discover that Part V of the 1982 Act (the “amending formula”) does not contain a provision to the effect of “the Constitution may not be amended except in accordance with this Part.” The only provision of this kind is found in Part VII, “General” , which does not limit amendments to the processes described in the “amending formula”, but rather says something considerably more broad in subsection 52(3): “Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.” My analysis of the legal and constitutional footing of Bill C-53 is entirely consistent with this provision.


  3. Aaron Clausen says:

    I’m still not convinced that the “office” Section 41(a) is really intended as an override to the Statute of Westminster, and thus while I understand your thesis, I’m not really convinced that an alteration to the Succession does trigger 41(a).

    The intent of that section was never to override or create conditions to the Statute of Westminster. The “office” is section 41(a) makes the most sense when referring to the position and powers of the Queen.

    Where I do agree with you is that where there is some question as to the legitimacy of the Federal Parliament alone altering the Succession agreement should be sought with the Provinces. Certainly Australia is doing that, though the wrinkle with the Queensland government wanting more time demonstrates why Harper likely prefers not to kicking up hornets nests. To my mind, there is never a better time to do it. The most substantial roadblock is the Quebec legislature, but seeing as the PQ have a minority, I doubt they’re going to want to be backed into a corner over the Succession and would probably just want to move it through the National Assembly as quickly as they can.


  4. Jason says:

    I look forward to your longer-than-Twitter comments on James Moore’s announcement today.


  5. Cal Rogers says:

    Your points are well-founded. If the government continues on this path they will, either by design or accident, give folks like Duff grounds to challenge our system of government. The government is either lazy or ignorant, neither would surprise!


  6. Kevin Gillespie says:

    You should write letters explaining this to the PMO, the Governor General, & the Queen. Obviously the GG and the Queen cannot unilaterally act over this issue, but one and/or the other might raise the issue with the PMO. Plus you will more likely get a reply from the PMO if they are aware that you have also contacted the direct representatives of the Crown.


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