The Canadian Crown and Canada’s Succession to the Throne Act, 2013

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

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9 Comments

  1. Reblogged this on Until Philosophers are Kings… and commented:
    10 questions that the Superior Court of Quebec will hopefully answer regarding the Canadian Crown, written by Philippe Lagassé.
    One other question that should be answered is: Is Canadian succession law governed by statutes such as the Act of Settlement, 1701, etc., that have been naturalised into Canadian law, or is it governed by the principle that “whoever sits on the British throne is the monarch of Canada”.

  2. The Constitution Act, 1964 (formerly the British North America Act, 1964, 12-13 Eliz. II, c. 73 [U.K.]) contains the following words: “WHEREAS the Senate and House of Commons of Canada in Parliament assembled have submitted an Address to Her Majesty praying that Her Majesty may graciously be pleased to cause a measure to be laid before the Parliament of the United Kingdon for the enactment of the provisions hereinafter set forth”. Do the words “Her Majesty” in this paragraph refer to one person or two?

    1. I’d suggest it’s the Canadian Queen-in-Parliament requesting that the British Queen-in-Parliament legislate for Canada. Unless of course the law lords were wrong in 1981 and that the Queen of Canada and Queen of the UK are not entire separate in matters of law and government. If that’s your position, I’d imagine that you’d also claim that the British Queen still has treaty obligations toward First Nations in Canada.

      1. I didn’t take a position so I don’t know why you brought up treaty obligations. I wanted to bring this Constitution amendment wording to your attention as something possibly underlying the Government’s position. But I don’t see how it can be interpreted as referring to the “Queen-in-Parliament”; addresses are made to the Queen outside Parliament. And the Queen causes a measure to be laid before the UK Parliament through her ministers in one of the houses. Enactment of legislation is by the Queen in Parliament.

      2. I’ll leave the parliamentary technicalities to you, Thomas! But I still do not see anything in that passage which precludes the interpretation and legal reality that Her Majesty in right of Canada transmitted a request to Her Majesty in right of the UK.

        I bring up the treaties because I know that you support the government’s position that the Queens are one and the same. I’m asking if you would extend this interpretation to other areas, such as First Nations treaties. I could also ask if the citizenship oath is sworn to the Queen of the UK as well as the Queen of Canada if they are seen as the same legal person. I’m asking you to test the theory in other cases to see if it holds up.

  3. I thought this wording might illustrate (support?) the Government’s position that the same person is both Queen of Canada and Queen of the UK. I would say that the “Queen in right of Canada” refers (under Responsible Government) to the person exercising the Crown’s rights and prerogatives on the advice of the Canadian Privy Council (or PM), while the “Queen in right of the UK” is the same physical person acting on the advice of the UK Privy Council. Canadian sovereignity is expressed through the power to advise the Queen to act. So I would answer both your questions (First Nations, citizenship oath) in the negative.

    I also agree with you that a change to the office of the Queen requires a Constitutional amendment under s. 41(a). If the Government’s position is that the same physical person is Queen of both countries (which I do agree with), that’s only part of the problem. They still must explain how a change in the order of succession can be carried out for Canada: a question you have answered. I think I know how the Government will do this, and although I’m rather favourable to what I think their argument will be, I still have reservations. But even if the courts accept the Government’s position, I don’t agree that that would imply Canada is not sovereign.

    1. Ah, I think I see where we diverge now. Because I see the Crown/Queen as the state, I can’t see the distinction between the Queens are merely a political one. Hopefully the courts will address it!

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