Another new development has just emerged in the ongoing narrative of royal succession. Earlier today, four professors of law at the University of Ottawa co-authored a column in Le Devoir and explained their constitutional objections to the Government of Canada’s approach to succession. However, I disagree with some parts of my colleagues’ analysis.
In their column, Professors Thibault, Theriault, Robitaille, Sylvestre argue that only a constitutional amendment to the “office of the Queen” under section 41(a) of the Constitution Act, 1982 can alter the succession to the Crown of Canada. This unanimity procedure requires that the House of Commons, Senate, and the assemblies of all 10 provinces pass concurring resolutions. The procedure does not require the consent of the “Parliament of Canada,” (Queen, Senate, and Commons), which would instead involve a law passed by both houses and given Royal Assent, rather than joint resolutions of the two houses. In so doing, they therefore reject the Government of Canada’s argument that the preamble of the Constitution Act, 1867 contains an implied principle of symmetry and guarantees that the Sovereign of the United Kingdom is automatically the Sovereign of Canada. But they also argue that the Protestant succession (the requirement in all 16 Realms that the Sovereign be a Protestant) is unconstitutional under sections 2(a) and 15 of the Charter. This is where I disagree with their analysis.
If succession falls under the ambit of the Constitution of Canada in general and section 41(a) of the Constitution Act, 1982 in particular (which the authors believe), then the rules of succession are not subject to the Charter because, as the Supreme Court of Canada has upheld in various rulings, one part of the Constitution cannot abrogate another. In other words, the Charter could only invalidate the Protestant succession as discriminatory if succession did not fall under the Constitution. Since the authors have already argued that succession pertains to section 41(a), they cannot invoke the Charter argument. The argument as to whether the Protestant succession would satisfy the Reasonable Limits Test under section 1 of the Charter therefore does not apply to this question of royal succession. At this stage, the authors are presenting a republican argument against constitutional monarchy itself rather than a pure criticism of the process by which the Government of Canada sought to alter the rules of succession to the Crown of Canada; the authors freely acknowledge that they “do not agree with the principles and basis of monarchy.” Rather than acting as an argument against the Government of Canada’s position on succession, the logical extension of this contention would amount to nothing less than the disestablishment of the entire constitutional system of this Dominion by using sections 2(a) and 15 of the Charter to make succession to the Crown unconstitutional. If this contention were correct, then the Crown of Canada itself would have been unconstitutional since the adoption of the Charter in 1982.
They have also accepted the Government of Canada’s incorrect assertion that the Succession to the Crown Bill, 2013 followed the precedents set on abdication and succession in 1936-1937 and on the Royal Style and Titles in 1947-1948 and 1952-1953. They countered that these “precedents are of no utility, because section 41(a) was not in force at the time” and because the ‘office’ includes the person who occupies it. They are absolutely right on the second point because the Crown of Canada is a corporation sole, but they are not quite right on the first point, if only because the Government of Canada of 2013 has misrepresented the position of the Government of Canada in 1937. In 1936-1937, the Government of Canada believed that His Majesty’s Declaration of Abdication Act had extended succession to Canada as part of its laws, which the Succession to the Throne Act, 1937 affirmed retroactively. The professors are correct that Patriation removed the possibility of allowing the Westminster Parliament to legislate for Canada under section 4 of the Statute of Westminster, as it did in 1936, and that the Constitution Act, 1982 imposes a new set of legal-constitutional requirements that did not exist prior to its adoption.
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
- Andre Binette and Rob Nicholson on Motard & Taillon’s Challenge to the Succession Law
- Anne Twomey on Succession to the Crown & Good Evidence of the Personal Union
- Prime Minister King and the Government of Canada’s Position on Succession in 1937
- Succession to the Crowns in Australasia and Succession as Part of Canadian Law
James Bowden's Blog 
Have you written any articles on the legal question of swearing an oath to the Queen and her heirs contained in the Citizenship Act?. If not, do you intend to?
LikeLike
The points as to alternative applicability are well taken; however, it is actually not that Motard and Taillon are “legally incorrect” in what they have plead before the Quebec Superior Court in Motard and Taillon v. Attorney General of Canada. Political scientists would not be expected to be on notice of the rules pertaining to code pleading in the alternative. However, in seeming to cumulatively plead that the religious-affiliation aspects of the Succession to the Throne Act, 2013 are subject to both the Constitution Act, 1982, in particular §41(a), and the Canadian Charter of Rights and Freedoms, they are actually alleging to the Court that these provisions may be alternatively subject to §41(a) or the Charter.
Therefore, the reality is that Motard and Taillon are aware of the alternatives that might be available in the law informing the Court as to the decision sought of it–that is, that the Act is unconstitutional–and are simply bringing all of the possible alternative legal bases for the declaratory judgment sought to the Court’s attention. That is, they are alleging to the Court that if the Act is unconstitutional, such could be, as a matter of Canadian Constitutional law, for possibly alternative reasons.
It should also should be remembered that, potentially, were the Court to disallow the religious-affiliation aspects of the Succession to the Throne Act, 2013, such would constitute a judicial abrogation of the Perth Agreement on Canada’s behalf.
Also, the significance ought not escape scholarly attention that this action, brought by members of the Quèbec Bar, before the Quèbec Court, constitutes both a defence of, and an attempt to vindicate, the Constitution of Canada both as a matter of Quèbec law and of Canadian law–a judicial proclamation of constitutional national unity.
LikeLike
I agree that they are wrong about their Charter arguments, especially after the O’Donohue ruling dealt with exactly that subject matter. I find it hard to believe that these law professor would be unaware of that ruling. Could it not be possible that they do indeed realise the shaky foundation for their Charter arguments, but are proceeding with them anyway in order to give the Court an opportunity to be politic and to rule partly in their favour (with regards to the more important issue of s. 41(a)) and partly in the Government of Canada’s favour (by affirming that succession to the throne is not subject to the Charter)?
LikeLike