André Binette and Rob Nicholson on Motard & Taillon’s Legal Challenge to the Succession Law

CTV News

André Binette, the lawyer representing Professors Motard and Taillon, appeared on CTV News on 11 June 2013 to discuss their application challenging the constitutionality of Canada’s succession law.

Binette pointed out that this case will ultimately rest on whether the courts agree with the Government of Canada’s absurd position that succession to the Crown of Canada does not form part of the laws of Canada at all. Binette argued that succession most certainly does form part of Canadian law and falls under “the office of the Queen” of section 41(a) of the Constitution Act, 1982.

It’s about the legal status of the monarchy in Canadian law under the Constitution of 1982, and ultimately, it’s about Canadian independence from the United Kingdom. The issue here is whether the laws related to the monarchy are part of Canadian law or not. 

Unfortunately, the comments beneath CTV’s article illustrate several examples of logical fallacies and incorrect assertions, such as the tautology, “Canada is not Australia,” and the thinly veiled anti-Quebec prejudice that no one should pay any attention to this case because Binette, Motard, and Taillon are all Quebeckers. Some of the commenters made the laughable suggestion that the Constitution Acts do not apply to Quebec because the Levesque government did not agree with the Patriation package of 1982. They also demonstrate a disturbing level of apathy toward the Crown of Canada. I have no doubt that the Government of Canada took into account these political considerations and elevated them above the constitutional facts of succession.

CBC News

The CBC provided some additional coverage of Andre Binette and also cited some of Minister Nicholson’s comments on 12 June 2013.

Binette alluded to the nature of the Crown of Canada as a corporation sole: “To me, the office can’t be seen to be separate from the rules around the office-holder.” As Phil Lagassé and I have argued, one indeed cannot seperate the “office of the Queen” under s.41(a) from the office-holder. And more importantly, the corporation sole also includes the successors to the office.

Suddenly Phil Lagassé and I look more prescient and less strident, since we first raised this argument in December 2012 in our column to the Ottawa Citizen. I expect that certain individuals will now claim that they agreed with us all along as our arguments gain legal momentum… And who says that only politicians demonstrate that level of cynicism?

Binette also correctly pointed out that this debate touches upon the independence of Canada as a sovereign state itself. I agree, and I raised this issue in another column to the Ottawa Citizen in February 2013.

Minister Nicholson repeated his refrain from the Senate Committee on Legal and Constitutional Affairs: “We’re on solid ground on this. We’ve had excellent advice on this.” Someone who has to insist that he’s on solid ground without providing any explanation is not on solid ground at all.

Nicholson also relied on this superficial appeal to authority and circular logic throughout the one parliamentary committee before which he relunctantly appeared on this subject. (Do “ctrl-F” for “advice” in the transcript). When presented with contrary evidence, Nicholson glanced tentatively at Warren Newman, the senior lawyer at the Department of Justice, “That is not the advice I have been given.” Then when a Senator asked a question with whose premise he agreed, Nicholson, rather than providing a proper explanation, appealed to authority in the affirmative: “That is the advice I have been given.”

Nicholson also reiterated the blatant falsehood that Canada’s Succession to the Throne Act, 2013, which “assented” to British law as if section 4 of the Statute of Westminster still applied, is “consistent with all other Commonwealth countries who have the Queen as head of state have done.” In reality, New Zealand will pass its own law on succession instead of attempting to invoke a defunct procedure in the Statute of Westminster that has not applied to Canada since 1982 and has not applied to Australia and New Zealand since 1986. New Zealand incorporated the Act of Settlement and other consequential acts into its own laws and will amend them accordingly. Australia will also amend its own laws under s.51(38) of its Constitution Act, which mimics the old procedure under s.4 of the Statute of Westminster. The six Australian states will authorize the Commonwealth Parliament to legislate on succession for all of Australia, at the federal and states levels. In addition to that procedure, Queensland has decided to also enact the legislation directly into its state law.

The proponents of the Government’s position are finally facing some proper opposition, and they don’t like it much.

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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.
This entry was posted in Corporation Sole, Crown (Powers and Office), Succession (Sovereign). Bookmark the permalink.

9 Responses to André Binette and Rob Nicholson on Motard & Taillon’s Legal Challenge to the Succession Law

  1. Pretty! This was an extremely wonderful post. Thanks for providing these details.


  2. Pingback: Lagassé and Bowden on the Crown as Corporation Sole and Royal Succession | James W.J. Bowden's Blog

  3. Pingback: The Government of Canada’s Position on Succession in 1937, 1943, & 1981 | James W.J. Bowden's Blog

  4. Pingback: Law Professors from the University of Ottawa on Succession to the Crown | James W.J. Bowden's Blog

  5. Pingback: Succession to the Crowns in Australasia & Succession as Part of Canadian Law | James W.J. Bowden's Blog

  6. Pingback: Prime Minister King and the Government of Canada’s Position on Succession in 1936-1937 | James W.J. Bowden's Blog

  7. Pingback: Anne Twomey on Succession to the Crown of Canada and Good Evidence of the Personal Union | James W.J. Bowden's Blog

  8. Pingback: Roundup: Denying consent for transparency | Routine Proceedings

  9. This applicant, apparently, hopes for the abolition of the monarchy on the basis that it is British and not Canadian. Many Canadians do not want to be a republic, however. If this applicant objects to the status quo, from a desire for Canadian independence from the UK, why doesn’t he consider changing the succession to require Canada’s Heir Apparent to be resident in and unique to Canada. We could go down the current line of succession until we found someone who is eligible under these new requirements. Canada would then be independent of the British Crown as soon as our Heir succeeds the current monarch. Canada would then have the opportunity to show the world an example of Constitutional Monarchy, divorced from the chattels of Medieval Europe. The appearance of potential conflict of interest for a shared monarch would be removed. A modern monarchy must be seen to be our’s, working for us to be of value to their citizens. Those Canadians who defend constitutional monarchy will finally be able to extol virtues not previously enjoyed by Canadians because of our absentee, increasingly foreign monarchy.


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