Introduction

Since December 2012, Professor Philippe Lagassé and I have put forward some arguments on the nature of the Crown of Canada as a corporation sole and all that this legal concept entails for the royal succession and the emergence of the Crown of Canada as a separate legal entity from the Crown of the United Kingdom. Perhaps we have engaged in a futile academic exercise, but I believe that the historical evidence supports our claims.

The Government of Canada in 2013 has acknowledged that the Crown of Canada is a separate legal person relative to the Crown of the United Kingdom; however, the Department of Justice also insists that the preamble of the Constitution Act, 1867 has created a “principle of symmetry” out of the personal union such that the Queen of the United Kingdom automatically becomes the Queen of Canada without any Canadian intervention. In effect, the only Canadian law relating to succession is the preamble of the Constitution Act, 1867. This is a false argument. From the primary and secondary sources that I have gathered thus far, I can make the following hypothesis on why succession to the Crown lost its clear place in Canadian law and in the Constitution of Canada. First, the Trudeau government shifted the constitutional focus from the patriation of the British North America Act and establishing an indigenous amending formula to entrenching a bill of rights. Consequently, most constitutional questions since the 1980s have centered on the Charter, and any talk of amending the constitution has become anathema to Canadian politics since the failure of the Charlottetown Accord in 1992. Canadian political observers even refer to amending the constitution as “opening” the constitution – with the obvious allusion to perils that await those who dare open Pandora’s Box. Second, the Department of Justice and the Privy Council Office lost vital institutional memory and expertise on the nature of the Crown of Canada.

I have presented several primary sources on this blog in order to refute the Government of Canada’s main argument that Canada has no law on succession. In fact, Canada has several laws on succession, which now falls under “the office of the Queen” under section 41(a) of the Constitution Act, 1982. In this entry, I present the following documents that complement Prime Minister King’s arguments of January 1937:

• Attorney-General Lapointe (1937-03-19) Application of British Statutes in Canada
• Ollivier (1945) British Statutes Applicable Under Canadian Law
• Chretien and Strayer (1981-02-05) Application of s.52 and Constitution

1937: Attorney-General Ernest Lapointe Explained How the Statute of Westminster Gave Canada Control Over British Statutes That Apply as Part of Canadian Law

In a debate on the Foreign Enlistment Act, Justice Minister Lapointe explained to the Commons the status of British statutes under Canadian law on19 March 1937. Prior to 1931, several British statutes automatically applied to Canada as part of Canadian law because the Westminster Parliament exercised legislative sovereignty over the Crown colonies. The Colonial Laws Validity Act, 1865 gave British statutes paramount force over all colonial statutes; as such, any colonial statutes that were “repugnant to” a British statute automatically became void to the extent of its repugnancy. However, section 2 of the Statute of Westminster repealed the Colonial Laws Validity Act and thus gave the self-governing Dominions the power to repeal or amend any Imperial statute that applied as part of their laws. Section 4 of the Statute of Westminster stated that the British Parliament would then only legislate for a Dominion at its request and with its consent. Some scholars, like Andrew Heard and Arthur Berriedale Keith, have interpreted section 4 as a mere “self-denying ordinance,” such that the Westminster Parliament could have continued to legislate for the Dominions even without their request and consent. Strictly speaking, this is true. However, the Dominion Parliament could then simply invoke section 2 of the Statute of Westminster and repeal such a law through whichthe British Parliament claimed the authority to apply to the Dominions outside of the procedure under section 4. This is why the Statute of Westminster did in fact grant the Dominions independence.

Lapointe explained: “Under the Statute of Westminster, any dominion may re-enact, repeal, or amend any statute already applying to it.”[1] As such, he introduced a bill to amend the Foreign Enlistment Act, a British statute that applied to Canada as part of its law, which the Parliament of Canada could then amend by virtue of the Statute of Westminster. Lapointe also deemed the Parliament of Canada to have accepted the principle of his bill, because the British statute had already become part of Canadian law as well. 

Charles Cahan, a Conservative MP and former Minister of the Crown under the Bennett government, agreed with Lapointe’s interpretation. In fact, Cahan went further and added with great enthusiasm that he and Conservative Opposition Leader R. B. Bennett embraced “the purpose and intent of the bill to take additional measures to exercise the rights of nationality and sovereignty which we believe are now inherent in the Parliament of Canada.”[2] King, Lapointe, Bennett, and Cahan would probably all look on what the Harper government did in 2013 with shame and incredulity, because today’s government has denied several decades of history and precedent into to avoid “opening” the Constitution. This is what the Government’s supporters now call a “practical” approach — with the clear implication that Lagassé, Toffoli, and I are mere woolly-browed academics who simply cannot grasp the complexities of modern government.

Cahan also noted that in his practice as a lawyer, he “was astonished to find that the judges presiding in the courts had no idea that any such acts [of the British Parliament] were in existence extending to and applicable to Canada.”[3] Sadly, many lawyers and judges today would not cease to astonish Cahan with their ignorance of this subject, mainly because most law schools offer only a superficial overview of Crown law in this post-Charter era.

Lapointe and Cahan accurately described the constitutional position as of 1937: the Statute of Westminster had placed the British acts that applied as part of Canadian law under “the legislative jurisdiction of the Parliament of Canada.”[4] While the Parliament of Canada alone could have legislated on this matters between 1931 and 1982, it no longer possesses this authority. Those statutes relating to “the office of the Queen” which then fell within the exclusive jurisdiction of the federal Parliament and are now subject to the Constitution Act, 1982. In effect, the Government of Canada wasted the easy opportunity to consolidate Canada’s laws relating to the Crown within those 50 years.

Cahan once requested (presumably when he served in the Cabinet) “a return from the Department of External Affairs showing the existing statutes of the parliament of the United Kingdom which extend to this dominion.”[5] He continued, “From my personal research, I have tabulated scores of such statutes which then and still apply to Canada, although under the act of 1867 they are now within the legislative jurisdiction of the parliament of Canada.” Lapointe replied, “I have a list of 150” British statutes that apply to Canada as part of the laws of Canada.[6] Cahan suggested that the Departments of Justice and External Affairs compile an exhaustive list of all British statutes that “extend to and are applicable to Canada,” publish that list, and recommend which acts be repealed and which be retained.[7]

Unfortunately, the King Government did not aggressively pursue that policy. While J.E. Read, a government lawyer in the Department of External Affairs, did produce such a list in 1943, neither King nor St. Laurent introduced a bill to rationalize the Imperial laws that Canada had inherited. The Trudeau government also neglected the issue when it patriated the British North America Acts in 1982.

1943: Read Consolidates Lapointe’s List of British Statutes That Apply to Canada As Part of the Laws of Canada

Maurice Ollivier served as a law clerk in the House of Commons in the mid-20^th century and wrote three books on Canada’s transition from self-governing colony to independent, sovereign state. In Problems of Canadian Sovereignty, he included an appendix of “Enactments of the Parliament of Great Britain Which By Their Express Terms or By Necessary Implication Apply to the Dominion of Canada.”[8] The footnote indicates that Mr. J.E. Read, a government lawyer in the Department of External Affairs, compiled this “tentative list” and updated it to 1943. This may be the same list to which Lapointe alluded in 1937.

This list includes several British statues governing succession to the throne that apply as part of the laws of Canada, such as the Bill of Rights, 1689, the Act of Settlement, 1701, the Royal Marriages Act, 1774, as well as the various Crown Private Estates Acts and Demise of the Crown Acts. Crucially, His Majesty’s Declaration of Abdication Act, 1936 also forms part of Canadian law because the Government of Canada requested and consented that the British Parliament extend it to Canada pursuant to section 4 of the Statute of Westminster.

In 1938, Canadian constitutional scholar W.P.M. Kennedy defined the Constitution of Canada as a hybrid amalgam of codified and uncodified elements:

The unwritten constitution includes all the great landmarks in British history in so far as they are working principles – Magna Carta, the Petition of Right, the Bill of Rights, the Habeus Corpus Act, the Act of Settlement – as well as the generally recognized conventions and usages. The written constitution is found in a series of Acts known and quoted as the British North America Acts, 1867-1915.[9]

The laws and principles governing the succession to the Crown of Canada certainly fall under the category of “working principles”, and the Bill of Rights, 1689 and the Act of Settlement, 1701 both deal with succession; Kennedy is arguing that Canada has received these British statutes, and thus the royal succession itself, into its law. Kennedy thus corroborates Read’s list with respect to succession to the Crown.

Canada has clearly always had laws on succession, contrary to the Government of Canada’s claims in 2013. British statutes form part of Canadian law and the Constitution of Canada

1981: Jean Chretien and Barry L. Strayer Explain that Section 52(2) Incorporates Non-Enumerated Statutes

The primary sources show that in 1937, the Government of Canada believed that succession formed part of Canadian law, just as in 2013, the Governments of Australia and New Zealand understand that succession forms part of their countries’ respective bodies of law. The Government of Canada maintained that position in 1947-1948 and 1952-1953 after enacting alterations to the Royal Style and Titles. But for whatever reason, the Government of Canada never affirmed its long-held position in 1982 by adopting an Imperial Laws Application Act to replace the Colonial Laws Validity Act, as Australia and New Zealand had done in the 20^th century. Barry L. Strayer, a former judge and Assistant Deputy Minister of Justice, recently wrote an autobiography on his involvement in patriating the constitution in the 1960s, 1970s, and 1980s. Perhaps Canada never passed equivalent legislation because section 52(2) of the Constitution Act, 1982 “maintain[ed] the continuity of our system” by “reaffirming the constitutional supremacy principle” that before 1982 resided in section 7(1) of the Statute of Westminster and section 2 of the Colonial Laws Validity Act.[10] Strayer explained that section 2 of the Colonial Laws Validity Act, 1865 (a British statute) ensured that an Imperial law (passed at Westminster) would supersede a colonial law to the extent that they conflicted with one another. Until 1982, the British North America Acts served as Canada’s written constitution and existed as Imperial laws. Section 7(1) of the Statute of Westminster “saved” the British North America Acts and made them supreme over all federal and provincial Canadian statutes. Since Canada repealed section 4 and section 7(1) of the Statute of Westminster in 1982, and then made that amended act part of Canada’s constitution, the Constitution Act, 1982 needed to ensure the continuity of the principle of constitutional supremacy through section 52(2). In other words, section 52(2) of the Constitution Act, 1982 should therefore guarantee that the British statutes that applied to Canada as part of the laws of Canada before 1982 continued to do so after 1982. The Patriation of the Constitution did not alter their status. As such, section 52(2) does not limit itself to an exhaustive definition of the Constitution of Canada; instead, it declares that the Constitution “includes” the statutes in the schedule – but it is not limited only to those statutes. In Canadian law and legislative drafting, “includes” means “including but not limited to”.

This means that if we can demonstrate that if the Government of Canada regarded certain British statutes as part of Canadian law before 1982, it should continue to regard those statutes as part of the Constitution.  In fact, Assistant Attorney General Strayer and Attorney General Jean Chretien confirmed this interpretation before the Special Joint Committee on the Constitution in 1982! One of the Conservative MPs on the committee, Mr. John Munro, asked Chretien and Strayer about “certain omissions in Schedule I” of the Constitution Act, 1982.[11] Munro based his question on Maurice Ollivier’s other book, British North America Acts and Selected Statutes, 1867-1962, and the heading “Federal Statutes of Constitutional Significance.”[12] Under that category, Ollivier placed the Succession to the Throne Act, 1937, the Seals Act, the Governor General’s Act, and various other statutes – most of which the Schedule to the Constitution Act, 1982 now lists. But for whatever reason, the Department of Justice opted to exclude some of these statutes of constitutional character from the Schedule. Munro criticized these “selective omissions” and argued that the Schedule should include the Succession to the Throne Act, 1937, The Demise of the Crown Act, 1901, the Seals Act, the Governor General’s Act, and the Royal Style and Titles Act, 1953. Chretien referred to the Supremacy Clause, section 52(2): “The Constitution of Canada includes (a) the Canada Act, 1982, including this Act; (b) the Acts and orders referred to the schedule; and (c) any amendment to any Act or ordered referred to in paragraph (a) or (b).” Chretien also replied that the Succession to the Throne Act, 1937 would form part of the Constitution of Canada under section 52(2).

When you use the word ‘includes,’ and the way that ‘c’ is drafted, it means that if ever there is another thing related to the Canadian constitution as part of it, should have been there, or might have been there, it is covered. So we do not have to renumerate [sic] the ones that you are mentioning.[13]  

Munro then asked whether the Department of Justice listed only some of Ollivier’s selected statutes because the Government intended to entrench only those acts enumerated in the schedule, and subject them to one of the amending formulas under Part V, and thus leave the omitted acts subject to the authority of the Parliament of Canada alone. Strayer explained that the Department of Justice did not take that view.

[…] that is certainly not the intention, nor is it, I think, the effect of the schedule the way it is.

The purpose was to identify the main instruments of the Constitution of Canada, but, as the Minister [Chretien] pointed out, Clause 52(2) is not an exhaustive definition of the Constitution of Canada so that while we have certain things listed in the schedule which are clearly part of the constitution, that does not mean that there are not other things which are part of the constitution. […] [The schedule] is not an exhaustive list.[14]

Chretien agreed with Strayer’s explanation, declaring: “You cannot get a better answer than that one.” Strayer then argued that the Letters Patent Constituting the Office of Governor General of 1947 form part of the Constitution of Canada under section 52(2) – even though this prerogative instrument does not appear in the schedule. Strayer reiterated his earlier argument: “The point of Clause 52(2) is that it does not purport to list exhaustively the whole Constitution.”[15]

Barry Strayer – then an Assistant Deputy Minister in the Department of Justice and one of the main architects of the Constitution Act, 1982 – argued cogently and precisely that the Supremacy Clause “includes” various statutes that do not appear in the schedule, which “does not purport to list exhaustively the whole of the constitution.” Strayer also explained in his autobiography Canada’s Constitution Revolution that he designed section 52(2) to replace the Colonial Laws Validity Act, 1865 and section 7(1) of the Statute of Westminster, 1931, which “saved” the British North America Acts and left them within the jurisdiction of the British Parliament until Canada devised an indigenous amending formula. Logically, section 52(2), the Supremacy Clause, must now incorporate several British statutes into the Constitution of Canada because it replaced the Colonial Laws Validity Act, through which the British Parliament used to exercise its sovereignty over the Crown colonies to ensure that several British statutes automatically applied to Canada as part of the laws of Canada by necessary implication or their express terms. Attorney General Lapointe confirmed this interpretation as early as 1937.

Robert Macgregor Dawson – the most underappreciated Canadian constitutional scholar of the 20^th century – offers a potential explanation why the Department of Justice jettisoned its own sound legal interpretations of the mid-20^th century: the Government’s lawyers simply forgot about succession, and the Department lost its expertise on the subject through attrition and retirement. Dawson explains, “the Canadian constitution also includes a number of British statutes expressly referring to Canada or to the empire.”[16] Dawson corroborates Prime Minister King and Attorney General Lapointe; he also argues that His Majesty’s Declaration of Abdication Act, 1936 applies to Canada as part of the laws of Canada because the King Government requested and consented that the British Parliament apply it to Canada pursuant to section 4 of the Statute of Westminster, 1931.

The surviving British statutes of major constitutional importance are few indeed. They are, as of 1970, the British North America Act and its amendments […] and the Statute of Westminster together with any acts which may have been passed at the express request of the Canadian government. The Declaration of Abdication Act, for example, is in the last group.[17]

Dawson predicted that the Government of Canada would resolve the status of all the British statutes that apply to Canada as part of the law of Canada “when the British North America Act is ‘patriated’ to Canada.”[18] Unfortunately, the Department of Justice in 1982 focused on entrenching the Charter of Rights and Freedoms into the Constitution and neglected this equally important issue – even though the Government should have built upon the work of eminent lawyers like Ernest Lapointe and J.R. Read. Barry Strayer argues that the Supremacy Clause resolved this issue; in reality, however, the Department of Justice’s Great Neglect of 1981-1982 now means that the courts would have to adjudicate on whether section 52(2) “includes” x or y statute and incorporates it into the Constitution. The Government of Canada should have drawn up an “Imperial Laws Application Act” and included it in the schedule of the Constitution Act, 1982.

Conclusion

Despite all the primary-source evidence that Lagassé and I have gathered on succession to the Crown and Royal Style and Titles and despite the secondary sources on the Crown as corporation that we have put forward, I can now only come to the depressing conclusion that nothing that we uncover and argue will sway the Government of Canada and the scholars who support the lawyers in the Department of Justice. Even the Government of Canada of 1937 and 1943 cannot convince the Government of Canada of 2013 to see reason. The Harper Government has morphed this pure legal-constitutional issue into a political question – and in politics, the Orwellian tactics of assertion and mendacious rhetoric count for more than do facts and clearly historical precedents.

I have provided several pieces of evidence that disprove the Department of Justice’s assertion – yet these facts have not dissuaded the Government’s greatest supporters. In fact, Canada does possess its own laws on succession: Canada has not only received British statute pertaining to the succession like the Bill of Rights and Act of Settlement, but in 1936, the King Government invoked section 4 of the Statute of Westminster and requested and consented that the Westminster Parliament legislate for Canada. Consequently, His Majesty’s Declaration of Abdication Act, 1936 applies as part of Canadian law – since that is what “to legislate on behalf of” means. Furthermore, the Parliament of Canada even assented retroactively to this British statute in March 1937 through the Succession to the Throne Act, 1937, which also incorporated the His Majesty’s Declaration of Abdication Act, 1936 into Canadian law a second time by listing it as a statutory schedule. The Commons Debates from 1937 clearly show that Prime Minister Mackenzie King and Justice Minister Ernest Lapointe made the necessary decisions to ensure that the Abdication Acts applied to Canada as part of Canadian law, because they sought to affirm the “equality of status” that the Statute of Westminster had codified in 1931. (In “The Government of Canada’s Position on Succession in 1937,” I laid out all these arguments in more detail). In 1937, Lapointe explained to the Commons that various British statutes form part of the laws of Canada, and that the Parliament of Canada could now amend, repeal, or re-enact of such British statute by virtue of section 2 of the Statute of Westminster, which repealed the Colonial Laws Validity Act, 1865. Lapointe also alluded to the Government of Canada’s compilation of the various British statutes that form part of Canadian law. In 1943, J.E. Read, a government lawyer working in the Department of External Affairs, forwarded his list of British statutes that apply as part of Canadian law by necessary implication or by express enactment to Maurice Ollivier, a law clerk at the House of Commons. Finally, in 1981, Chretien and Strayer explained that the Supremacy Clause would cover the Succession to the Throne Act, 1937 and the Letters Patent Constituting the Office of Governor General and Commander-in-Chief of 1947. All the historical evidence shows that the Government of Canada believed – at least between 1937 and 1981 – that succession forms part of Canadian law because Canada has received the Bill of Rights, 1689 and the Act of Settlement, 1701 and because the British parliament passed His Majesty’s Declaration of Abdication Act, 1936 for the United Kingdom, Australia, New Zealand, and Canada.

I doubt that anyone will pay this evidence any attention; the proponents of the Government of Canada’s position of 2013 may remark that I have “nicely lain out” my argument or acknowledge that these primary sources are “interesting” – but they would probably also dismiss them as “irrelevant” (without properly explaining why, of course!). I, however, will continue to adhere to the Government of Canada’s position on succession of 1936-1981. Alternatively, they will praise the Government’s approach as “practical” – a choice of words that betrays their fear of facing the consequences if Lagassé and I are right that succession to the Crown falls under section 41(a) of the Constitution Act, 1982 because it pertains to “the office of the Queen,” since the Crown is a corporation sole.

Thankfully, Canada will have several decades to bring its laws on succession in line with those of the United Kingdom, Australia, and New Zealand. The succession to the British Crown now operates on equal primogeniture, while the succession to Canada’s Crown has thus far retained the male-preference cognatic primogeniture that gives preference to younger sons over older daughters. However, the distinct British and Canadian laws on succession will not come into conflict for at least three generations: as Prime Minister Harper remarked when a reporter first asked him about this subject during the federal election of 2011, the heir to the throne – the Prince of Wales – is a man, and the next heir to the throne – the Duke of Cambridge – is a man. In July 2013, the Duke and Duchess of Cambridge were safely delivered of a son, which means that the third heir to the throne – Prince George – will also be a man. Given that Canada can “open” the constitution at the opportune moment in order to alter the law on succession at any point over the next few decades, the court in Quebec currently reviewing this case should not impose any undue constraints on itself, consider all the available historical evidence, and treat this issue with the dignity and diligence that it deserves and so desperately needs.

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