What exactly are the issues surrounding Canada’s Succession to the Throne Act, 2013?
Beyond asking whether alterations to royal succession require a constitutional amendment under section 41(a) of the Constitution Act, 1982, it’s worthwhile appreciating what the case brought before the Superior Court of Quebec by two Université Laval law professors will (hopefully) tell us about the Crown in Canada.
Here are ten questions about the Crown in Canada that the court challenge to the Succession to the Throne Act, 2013 will ideally answer:
1) Is the succession a matter of British or Canadian law?
2) Is the constitutional convention regarding succession found in the preamble to the Statute of Westminster still operative? And, if so, does it allow Canada to assent to a British law, instead of passing a substantive succession act as Australia and New Zealand are doing?
3) Why did the government of William Lyon Mackenzie King believe that Canada needed to request and consent that British law be extended to Canada to give effect to the abdication in 1936? The language of PC3144 indicates that the WLMK government did not think that assenting to the British law was sufficient to alter the succession for Canada; it also required the use of s.4 of the Statute of Westminster to come into force in Canadian law. Put differently, why did Canada require a substantive law to change the succession in 1936, but only needs to assent in 2013?
4) Are Canada and the United Kingdom under the same Crown? If not, are they under the same Sovereign? If so, how does the notion that Canada and the United Kingdom have the same Sovereign accord with Lord Justice May‘s finding in 1981 such that the Queen of the United Kingdom and the Queen of Canada are entirely independent and distinct in matters of law and government?
5) If Canadian and British Crowns are distinct corporations sole, meaning that the Canadian Crown and Queen of Canada are treated as a single entity in law, separate and distinct from the fused British Crown and Queen of the United Kingdom, how can the Crown of Canada be distinct from the British Crown, but the Queen be the same?
6) If Canada and the United Kingdom are under a single Crown and Sovereign, how can they be separate states, strictly speaking? Since the Crown is the concept of the state in the Westminster tradition, does this mean that Canada’s independence from the United Kingdom is merely conventional/political rather than legal? And if it is political/conventional rather than legal, does this mean that Canada has not achieved the legal independence from the United Kingdom that Australia and New Zealand have?
7) If Canada and the United Kingdom are only under a personal union, where their distinct offices of Queen are separate but held by the same natural person, how can British legislation affect changes to the uniquely Canadian office?
8) Although Australia and New Zealand recognize the personal union, they both feel that their parliaments must pass substantive laws to ensure that the personal union remains in place when the United Kingdom alters its succession laws. Why does the personal union automatically alter the Canadian succession, but not the Australian and New Zealand successions?
9) If Canada’s Succession to the Throne Act, 1937 is part of the Canadian constitution, as Minister of Justice Jean Chrétien suggested in 1981, do matters of succession fall under the office of the Queen?
10) What would be the consequences of accepting that Canada and the United Kingdom are still under a single Crown? What would be the consequences of accepting that they have distinct Crowns, but a shared office of the Queen? What would be the consequences of British courts holding that the Canadian Crown and Queen are entirely distinct and independent, while Canadian courts hold that either the Crown or Queen (or both) are not entirely distinct and independent?
These are the questions that were in my mind when I wrote about the succession law in Macleans and in the Ottawa Citizen. For much more on Canada and the succession, visit James W.J. Bowden’s blog www.parliamentum.org