Introduction

In 2013, the Government of Canada has claimed that succession does not form part of Canadian law, except inasmuch as the preamble of the Constitution Act, 1867 contains an implied principle of symmetry such that the Sovereign of the United Kingdom is automatically the Sovereign of Canada. Therefore, any alteration to the laws on succession that the British Parliament adopts automatically applies to Canada by virtue of the preamble of the Constitution Act, 1867. This political trickery has allowed the Government of Canada to acknowledge the fact that the British Parliament can no longer legislate for Canada. The Government of Canada maintains that no other laws or principles of succession form part of Canadian law and that therefore Canada cannot alter any law on succession, whether by statute or by a constitutional amendment.

Warren Newman, Senior General Counsel in the Department of Justice, explained before the Senate Standing Committee on Legal and Constitutional Affairs the principle behind Bill C-53, the Canadian succession to the Crown bill that “assents to” the British legislation:

The purpose of this bill, this Canadian legislation, is not to alter the law of succession but simply to assent to the principles in the U.K. bill. […]

The constitutional rule [in Canada] is a fundamental one. The sovereign of the United Kingdom is the sovereign of Canada, and the sovereign of the United Kingdom is determined by the law of the United Kingdom.  

However, the Government of Canada’s own primary-source documents on abdication, succession, and the Royal Style and Titles between the years 1936 and 1953 (inclusive) contradict the Government of Canada’s current position on succession. In short, all three of these precedents show that alterations to the British laws on succession and the Royal Style and Titles post-1931 do not apply automatically in Canada, which shows that this so-called “principle of symmetry” does not exist. The Government of Canada created this doctrine sometime after 1953.

In this entry, I shall present an argument on succession to the Crown that the Government of Canada in 2013 may find compelling: the Government of Canada’s position on succession in 1936-1937.

I will devote a subsequent entry to the two sets of alterations to the Royal Style and Titles in 1947-1948 and 1952-1953. You can read all the documents referred to in this entry on this page.

Background on the Abdication Crisis of 1936

The Abdication Crisis of 1936 came about when Edward VIII declared his intention to marry Wallis Simpson, a twice-divorced American. From around the mid-19^th century to the mid-20^th century, strong social norms against divorce (in the United Kingdom, Canada, Australia, and New Zealand) made marrying a divorcee politically impossible – particularly for a King.[1] While no statute law prohibited the King from marrying a divorcee, the King of the United Kingdom also serves as the Supreme Governor of the Church of England, which during that period strongly opposed divorce and helped enforce the social norms against it.

At this stage, contemporary critics will consider themselves witty by pointing out that Henry VIII, whose Reformation Parliament established Henry VIII as Supreme Head of the Church of England in 1534 through the Act of Supremacy, broke with Rome specifically so that he could sanctify his own divorce from Catherine of Aragon. But anyone who brings up the historical origins of the Church of England would, rather than being clever, in fact have missed the point entirely, because social norms, not laws, prevented Edward VIII from marrying a divorcee.

Edward VIII became King upon the death of George V on 20 January 1936. The Abdication Crisis unfolded in December 1936. British Prime Minister Stanley Baldwin expressed his and his cabinet’s displeasure with Edward VIII’s intent to marry Wallis Simpson and suggested that he and his government would resign in protest. Edward VIII countered that he would abdicate, which eventually he did. The Archbishop of Canterbury, who fulfills a key function in the coronation of the Sovereign and in presiding over the marriages of members of the Royal Family, also opposed Edward VIII’s intent to marry Wallis Simpson.

Prime Minister King told the Commons that British Prime Minister Baldwin had contacted him and the five other Dominion Prime Ministers and asked for their opinion on three options:

1. Allowing Edward VIII to marry Wallis Simpson outright;
2. Permitting a morganatic marriage (which would have deprived any of their issue of right of inheritance of the Crown, and thus taken them out of the line of succession and still required an alteration to the laws on succession); or,
3. Prohibiting Edward VIII from marrying Wallis Simpson at all and forcing his abdication, which would also require an alteration to the laws on succession.

At the urging of Baldwin, King decided on December 8 1936, decided that His Majesty’s Canadian Government should rely a message directly to Edward VIII, some other Dominions had done. The King government drafted a message to Edward VIII and sent it to the Palace via the Governor General.[2] The Government of Canada supported the third option.

On 8 December 1936, the Government of Canada advised Edward VIII to abdicate if he intended to marry Wallis Simpson. Essentially, the message said, “His Majesty should put His duty to the Crown and Empire before His personal preference and thus abdicate.” The Government of Canada’s official message read as follows:

My colleagues and I desire to have Your Majesty made aware of the deep sympathy we feel for you in the momentous decision which, at the present time, you are being called upon to make.

There is no doubt in our minds that a recognition by Your Majesty of what as king is owing by you to the throne and Your Majesty’s subjects in all parts of the British commonwealth should, regardless of whatever the personal sacrifice may be, be permitted to outweigh all other considerations.[3]      

Procedure for Altering the Succession in Canada in 1936

In fact, Canada incorporated succession into its law by invoking section 4 of the Statute of Westminster in December 1936.

Prior to the enactment of the Statute of Westminster in 1931, the British Parliament legislated for Canada and the other Dominions (and Crown colonies) by passing statutes that “extended to a Dominion as part of the law of the Dominion.” The British Parliament legislated Canada’s constitution through the Constitutional Act, 1791, the Act of Union, 1840, and the British North America Act, 1867. After the Imperial Conferences of 1926 and 1930, the British Parliament agreed to relinquish its power to legislate for the Dominions except at the request and with the consent of a Dominion through section 4 of the Statute of Westminster:

No Act of Parliament of the United Kingdom passed after the commencement of this act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in the Act that the Dominion has requested, and consented to, the enactment thereof.

The marginal notation accompanying section 4 states, the “Parliament of the United Kingdom not to legislate for Dominion except by consent.” In other words, the British Parliament could only legislate for Canada (i.e., pass a statute that “extends to [Canada] as part of the laws of [Canada]”) after 1931 only at the request and with the consent of Canada. Once Canada so indicated its request and consent, the British legislation would also “extend to Canada as part of the law of Canada.”

On 10 December 1936, the Government of Canada passed P.C. 1936-3144, an “Order-in-Council regarding Canadian Request and Consent for Enactment of United Kingdom Legislation Altering Succession,” and sent it to London by diplomatic cable. The King government declared:

That, in order to insure that the requirements of the fourth section of the Statute [of Westminster] are satisfied, it is necessary to provide for the request and consent of Canada to the enactment of the proposed legislation; and, in order to insure compliance with the constitutional convention expressed in the second recital of the preamble, hereinbefore set forth, it is necessary to make provision for securing the assent of the Parliament of Canada thereto.

On 10 December 1936, the Government of Canada signified Canada’s request and consent that the British Parliament “extend to Canada as part of the laws of Canada” the His Majesty’s Declaration of Abdication Act and all the customs and laws on succession through the Order-in-Council PC 3144. Since His Majesty’s Declaration of Abdication Act also amended the Act of Settlement and the Royal Marriages Act, those statutes have formed part of Canada’s laws since at least 11 December 1936. (Alternatively, they became part of Canada’s laws even earlier through the Doctrine of Reception. But in either case, they form part of Canadian law just as they form part of British law, Australian law, and New Zealand law). The British Parliament passed that act on 11 December 1936 and promulgated the demise of the Crown and succession of the Duke of York as King George VI for the United Kingdom, Canada, Australia, and New Zealand. The law noted in its preamble that it also applied to Canada, Australia, and New Zealand as part of their laws:

And whereas, following upon the communication to His Dominions of His Majesty’s said declaration and desire, the Dominion of Canada pursuant to the provisions of section four of the Statute of Westminster, 1931, has requested and consented to the enactment of this Act, and the Commonwealth of Australia, the Dominion of New Zealand, and the Union of South Africa have assented thereto.

As of 1936, only Canada had ratified the procedure under section 4; Australia and New Zealand had not. So the British Parliament legislated for Canada at the higher threshold of “request and consent,” while it legislated for Australia and New Zealand automatically and only with their parliaments’ assent. On 31 March 1937, the Parliament of Canada  then retroactively assented to that act and the incorporation of all those principles of succession in to the laws of Canada through the Succession to the Throne Act, 1937, which should be regarded as a non-enumerated statute under s.52(2) of the Constitution Act, 1982.

The positive law under section 4 of the Statute of Westminster required the “request and consent” of the Dominion, while the preamble of the Statute of Westminster suggested that the parliaments of the Dominions also give their “assent” by convention. The His Majesty’s Declaration of Abdication Act promulgated the changes “as part of the law of [Canada]” under section 4 in December 1936, while the Parliament of Canada only passed the Succession to the Throne Act, 1937 retroactively in March 1937 as a symbolic gesture of the “assent” mentioned in the preamble of the Statute of Westminster.

Prime Minister King and former Prime Minister R.B. Bennett explained that section 4 of the Statute of Westminster allowed the Government of Canada to take action and did not require that the Parliament of Canada assent to His Majesty’s Declaration of Abdication Act beforehand. Bennett – who was Prime Minister in 1931 – explained, “The Statute of Westminster provides that no act passed by the parliament at Westminster shall have effect in this dominion without the request and assent of the dominions.”[4] Bennett meant to say, “request and consent” rather than “assent”, because he was alluding to the wording of section 4 of the SoW. Bennett argued that section 4 of the Statute of Westminster says “at the request and with the consent of the Dominion” (which allows the Government to act) instead of “parliament of the Dominion” (which would have precluded the Government from acting in the name of the Dominion) “for the purpose of meeting an emergency which might arise, just as an emergency arose in this case.”[5] The delegates at the Imperial Conference of 1930 had explicitly rejected an amendment adding “parliament of the Dominion” to the clause that became section 4 of the SoW.[6]

Contrary to Andrew Heard’s assertion before the Senate Committee on Legal and Constitutional Affairs on 20 March 2013, I would put stock in the clear difference between the constitutional convention contained in the second recital of the preamble of “assent” versus the former statutory provision on the request and “consent” in the Statute of Westminster. An “assent” can be either pro-active or retro-active, though it should normally be the latter. For instance, the Sovereign or Governor gives Royal Assent after both houses have passed a bill. In contrast, “consent” is necessarily pro-active and forms an essential prerequisite step in a legal process. For instance, a bill affecting the powers of the Crown must first receive Royal Consent, or else it cannot proceed further.

Prime Minister Mackenzie King Explains the Government of Canada’s Position on Succession upon the Abdication Crisis of 1936

Prime Minister King stated that his administration sought to balance “national autonomy and, on the other, the equal importance of laying emphasis upon imperial unity.” On the evening of 9 December 1936, the Government of Canada received its “first definite word” that Edward VIII would issue an Instrument of Abdication. Prime Minister Mackenzie King explained that Edward VIII had transmitted originals of his Instrument of Abdication and message to the Governor General of Canada on 10 December 1936, who in turn immediately forwarded them to the King government.[7] The Palace sent originals “to each of the governments of the self-governing dominions.”[8]

When the Government of Canada passed the Order-in-Council PC 1936-3144, the Parliament was not sitting. Parliament resumed as scheduled on 14 January 1937. King then explained that he decided not to summon Parliament for an emergency sitting “before receiving the definite word” on abdication on 9 December 1936 because that decision would have presumed the King’s abdication before he had confirmed his intention to do so.[9] In addition, Parliament would not have convened until at least 6 days after the summons went out, and the Parliament of Canada could not possibly have passed legislation simultaneously with or before the British Parliament.[10]

Prime Minister King then acknowledged in the following statement that His Majesty’s Declaration of Abdication Act would not have extended to Canada as part of its law automatically. In so doing, King also unwittingly contradicted the position that the Government of Canada has taken in 2013.

“If we had waited for a week for Canada’s parliament to assemble and act,” King explained, the delay would have “made Canada’s apparent separation from the other members of the commonwealth so marked to all the world. That was the real alternative.”[11]

In other words, King took for granted that the British Parliament could no longer legislate for Canada unless Canada had “request and consented” under section 4 of the Statute of Westminster. Since the Parliament of Canada could not take action in December 1936, the Government of Canada did so instead and provided Canada’s necessary request and consent pursuant to section 4. King made clear that if Canada had taken no action, or had waited an extra week for the Parliament of Canada to reconvene, then Edward VIII would have remained as King of Canada even after he had abdicated as King of the United Kingdom; there is simply no other interpretation of King’s reference to “Canada’s apparent separation from the other members of the Commonwealth.”

Based on the evidence from Hansard and King’s reasoning contained therein, King would probably have introduced a bill signifying Canada’s request and consent to the enactment of His Majesty’s Abdication Act, 1936 so that it extended to Canada as part of Canada’s law under section 4 of the SoW if Parliament had been sitting in December 1936.

King later reiterated the Government of Canada’s position that only by invoking section 4 of the Statute of Westminster could Canada have ensured that His Majesty’s Declaration of Abdication Act applied to Canada as part of Canada’s laws.

The Government was acting entirely within the provisions of the Statute [of Westminster] when by order-in-council it communicated its request and consent, and secured the insertion of “the request and consent of” Canada in the preamble of the abdication bill, thereby making the provisions of that applicable also to our dominion when the statute was enacted.[12]

On 19 January 1937, Prime Minister King offered further explanation for the Government of Canada’s decision of the previous December. King explained:

Until 1931, this power to alter the succession was vested solely in the parliament of the United Kingdom. In that year formal recognition was given to the fact that the succession to the throne was a matter of direct and deep concern to all members of the British Commonwealth of Nations. That recognition is set forth in the Statute of Westminster, both in section 4, and in the preamble.[…]

As the parliament of the United Kingdom could not, under the terms of the Statute of Westminster, pass an abdication act which would extend or be deemed to extend to Canada unless the dominion had requested such legislation in advance and consented thereto, steps were taken in the most expeditious and appropriate manner to convey that request and consent and to secure their expression in the United Kingdom Act.[13]

Prime Minister King then affirmed the Government of Canada’s position in PC 1936-3144. His Majesty’s Declaration of Abdication Act, 1936 extended to Canada as part of the laws of Canada pursuant to the Government of Canada’s “request and consent” under section 4 of the Statute of Westminster, and thus promulgated the demise of the Crown of Canada and subsequent accession of George VI to the throne of Canada, while the Canadian Succession to the Throne Act, 1937 gave the Parliament of Canada’s “assent” retroactively, pursuant to the second recital of the preamble of the Statute of Westminster.

The action of December 10 was designed to secure immediate legal effect to the change. The present legislation is designed to carry out the constitutional convention expressed in the preamble to the Statute of Westminster.[14]

The Minister of Justice, Ernest Lapointe, also explained the necessity of PC 1936-3144: “If we had to do anything it had to be done immediately or there would have been chaos in Canada.”[15] In addition, His Majesty’s Declaration of Abdication Act ensured the following:

first, to make the abdication and the accession of George VI effective; second, to alter the law touching the succession to the throne. In so far as the contemplated legislation would related to the abdication and succession it would extend at once to the dominion as part of the law of that dominion, and would consequently require the previous request and consent of the dominion to the enactment thereof, in accordance with section 4 of the Statute of Westminster.[16]

Conclusion

Prime Minister Mackenzie King, Minister of Justice Ernest Lapointe, and thus the Government of Canada, believed that His Majesty’s Instrument of Abdication Act and the Succession to the Throne Act, 1937 extended succession to the Crown as part of Canadian law.

The Government of Canada’s position on succession in 1936 contradicts the Government of Canada’s position on succession in 2013. Succession forms part of Canadian law, as Prime Minister King made clear more than once in the Commons.

Pursuant to section 4 of the Statute of Westminster, His Majesty’s Declaration of Abdication Act, 1936 “extended to Canada as part of the laws of Canada” not only the abdication but also the Act of Settlement and Royal Marriages Act by necessary implication and incorporation by reference. The Canadian Succession to the Throne Act, 1937 affirmed this explicit reception of the laws on succession. Upon the Patriation of the Constitution in 1982, the laws on succession became constitutionally entrenched under section 41(a) of the Constitution Act, 1982 and the “office of the Queen” Today, only a constitutional amendment can alter succession to the Crown of Canada.

The Succession to the Throne Act, 1937 assented to incorporating the British laws on succession into Canadian law, and the Constitution Act, 1982 entrenched the laws on succession to the Crown of Canada as part of the Constitution of Canada under s.52(2) and made them subject to the amendment formula of s.41(a). Even M. Olliver’s British North America Acts and Selected Statutes (from 1964) lists the Succession to the Throne Act, 1937 under the section “Acts of Canada Relating to Federal Constitutional Matters.” Most of the acts that Olliver listed made their way to the schedule of the Constitution Acts.

As Garry Toffoli of the Canadian Royal Heritage Trust argues:

The Succession to the Throne Act of 1937 is the statutory repository of the law of Succession for Canada, so it is irrelevant whether or not the patriation of the Constitution  in 1982 specifically incorporated the UK laws of succession into Canadian law, as that had already been done in 1937, and it was not necessary in 1982 to create a Canadian law of Succession since one already existed.[17]

The Succession to the Throne Act, 1937 removed any doubt that succession formed part of Canadian law, because our domestic legislation included His Majesty’s Instrument of Abdication Act, 1936 (which initially promulgated the demise of the Crown and the accession of George VI in the UK, Canada, Australia, and New Zealand on 11 December 1936) as part of the schedule. (The schedule to an act forms part of the law; for example, the schedule to the Constitution Act, 1982 contains a non-exhaustive list of other statutes that form part of the Constitution of Canada).

I cannot fathom why the Government of Canada has since repudiated and abandoned its own position and in so doing lent credence to the anti-monarchist arguments that Canada will remain a colony of the United Kingdom unless it becomes a federal republic. You (you know who you are) simply cannot acknowledge, on the one hand, that the Crown of Canada is a legal person separate of and independent from the Crown of the United Kingdom and then, on the other hand, cling to the Government of Canada’s absurd notion that succession does not exist under Canadian law. These two propositions are mutually exclusive. You can’t have it both ways.

Similar Posts:

• Succession to the Crown
• Succeeding to the Canadian Throne
• Why Altering the Succession Requires a Constitutional Amendment
• The Monarchist League of Canada’s Flip-Flop on Succession
• Why the Harper Government’s Succession Bill Is Unconstitutional
• Succession Falls Under “Office of Queen”
• Professors of Law Motard & Taillon Challenge Canada’s Succession Law
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