What was I getting at with this tweet yesterday?

“N.B. According to the federal government’s interpretation of royal succession in Canada, we could arguably make Harry the King of Canada with a simple parliamentary statute or a section 44 (ie unilateral) constitutional amendment.”

My understanding of the federal government’s logic when it comes to royal succession in Canada is as follows:

a) Matters of royal succession are determined by British law; there is no Canadian law of royal succession.

b) Instead of Canadian laws of royal succession, we have a ‘rule of recognition’ or ‘principle of symmetry’ that simply states that whoever is the monarch in the UK is the monarch of Canada.

c) This means that changes to the law of succession do not engage the ‘office of the Queen’ mentioned in paragraph 41(a) of the Constitution Act, 1982; the ‘office of the Queen’ only deals with the powers of the office, and Canada’s status as a monarchy, rather than the rules that determine who holds the office of Sovereign.

d) The ‘rule of recognition’ means that Canada does not need to change any laws or amend the Canadian constitution when the British laws of royal succession are altered.

e) When the UK makes changes to their laws of royal succession, all Canada needs to do is express its assent, as per the preamble to the Statute of Westminster, 1931.

f) We know that this ‘rule of recognition’ exists by virtue of either the preamble to the Constitution Act, 1867, which states that Canada was confederated under the “Crown of the United Kingdom of Great Britain and Ireland,” or thanks to section 9 of that same Act, which provides that “The Executive Government and Authority of and over Canada is hereby declared to continue to be vested in the Queen,”

g) Proponents of the ‘rule of recognition’ also point to section 2 of the Constitution Act, 1867 that used to state: “The Provisions of this Act referring to Her Majesty the Queen extend also to the Heirs and Successors of Her Majesty, Kings and Queens of the United Kingdom of Great Britain and Ireland.” (The problem is that this section was repealed in 1893, and its existence calls into question the idea that the preamble and section 9 provide a ‘rule of recognition’, i.e. why would the preamble and section 9 provide a rule that section 2 provided? If anything, section 2 demonstrates that the preamble and section 9 were never meant to provide such a rule, but I digress.)

h) So, my understanding is that the ‘rule of recognition’ is tied to the preamble and/or section 9 of the Constitution Act, 1867, with the repealed section 2 telling us that rule says. I may be wrong, but I haven’t seen an argument linking the ‘rule of recognition’ to the ‘office of the Queen’ precisely because the office is said to not include the rules that determine who holds the office.

i) This then raises the question: what would Canada need to do to end the ‘rule of recognition’ and craft its own laws of royal succession?

j) If we accept that the ‘office of the Queen’ does not deal with the rules that determine who holds the office, then we would not need to follow the unanimous amending formula identified in section 41.

k) If the preamble to the Constitution Act, 1867 is what protects the ‘rule of recognition’, then perhaps the general amending formula would be sufficient.

l) But if the rule is actually provided by section 9 alone, then one could make the case that the amending formula found in section 44, which allows Parliament to act alone, could be sufficient. Specifically, since section 9 deals with the Queen as the executive power and section 44 allows for amendments to the federal executive power, it might follow that section 44 would suffice.

m) Indeed, even proponents of the ‘rule of recognition’ have suggested that, if Canada does need an actual constitutional amendment to give effect to the changes enacted by the UK in 2013, then a section 44 amendment would be sufficient, since Parliament would merely be keeping Canada aligned with the UK laws, as per the convention of the Statute of Westminster.

n) We could also think of hypothetical scenarios that would favour a section 44 approach. If the UK suddenly became a republic, how would Canada ensure the continuity of its system of government? To avoid having to completely overhaul the monarchy under section 41, the case would probably be made that section 44 would allow Parliament to establish Canadian laws of royal succession in the absence of a British monarch to mirror as our own.

o) If we accept all this, though, we could also then make the case that a section 44 amendment could provide new Canadian laws of royal succession right now, hence the hypothetical ability for Parliament to make Harry the King of Canada without involving the provinces.

p) As for a regular parliamentary statute, you could further argue that nothing prevents Parliament from legislating for royal succession today, save for the convention outlined in the Statute of Westminster. That convention, however, isn’t a law. Moreover, the convention has been disregarded by Australia and New Zealand, so its continued existence is doubtful. Specifically, Australia and New Zealand didn’t assent to anything to change their laws of succession; they simply altered their relevant laws.

q) In fact, as long as Parliament passed laws of royal succession that accorded with the ‘rule of recognition’ they wouldn’t be unconstitutional. Parliament could also pass a law of royal succession that broke from the ‘rule of recognition’, but it would only last until a court struck it down as being unconstitutional.

r) A section 44 amendment is the only viable option at this stage, though, given that the lower courts have ruled that the ‘rule of recognition’ is part of the Constitution of Canada.

So that’s the point I was making with my tongue in cheek tweet.

What’s the counterargument?

One could argue that the ‘rule of recognition’ is protected by the ‘office of the Queen’, and that any move away from the ‘principle of symmetry’ would require a unanimous constitutional amendment.

To get there, however, one needs to admit that the ‘office of the Queen’ does deal with the rules that determine who holds the office. Frankly, this should be obvious to anyone who looks seriously at the issue. And I suspect defenders of the ‘rule of recognition’ will admit as much privately.

The ‘office of the Queen’ came about in reaction to Bill C-60, the legislation the P.E. Trudeau government introduced in 1978 to amend the constitution. Section 30 of Bill C-60 provided that “The sovereign head of Canada, Her Majesty the Queen, who shall be styled the Queen of Canada and who sovereignty as such shall pass to heirs and successors in accordance with law.” The reference to succession according to law must have meant Canadian law, not British law, given the aim of Bill C-60 was to provide a wholly Canadian monarch and constitution. The laws in question were likely those that would have previously applied to Canada by paramount force, such as the Act of Settlement and the Royal Marriages Act, and the His Majesty’s Abdication Act, 1936 which was explicitly extended into Canadian law by the British Parliament in December 1936. Under section 30 of Bill C-60, Canada would have had the authority to alter those laws to set the rules of succession for the Queen of Canada, just as Australia and New Zealand do for the Queen of Australia and Queen of New Zealand today.

Bill C-60 was opposed by those who saw it as potentially severing the link between the British and Canadian Crown. Their counterproposal was the language of the ‘office of the Queen’ that ended up in the Constitution Act, 1982. A key motivation for introducing the ‘office of the Queen’ was to ensure that Parliament couldn’t change the monarchy, including the rules of royal succession, without provincial consent.

Up until 2013, furthermore, authorities such as Peter Hogg and advocates such as the Monarchist League took it for granted that the ‘office of the Queen’ dealt with the identification of who held the office. They only changed their tune when they had to defended the federal government’s argument that the ‘office of the Queen’ did not touch on the identity of the office-holder.

Now that the ‘rule of recognition’ has been held up by courts in Ontario and Quebec, I remain puzzled as to why defenders of this ‘rule’ don’t simply say that it’s shielded by the ‘office of the Queen’.

The only reason I can come up with is that they want to protect Parliament’s ability to alter the ‘rule of recognition’ via section 44. Indeed, the courts may force them to do just that as the succession case makes its way through the Quebec Court of Appeal and perhaps the Supreme Court of Canada.

Put differently, if the courts do find that a constitutional amendment is needed to give effect to the changes in the laws of royal succession undertaken by the UK in 2013, the federal government will surely argue that it can use section 44. This precisely the power I was suggesting Parliament has with my tweet.