The “office of The Queen” includes the Sovereign’s constitutional status, powers
and rights in Canada. Neither the ban on the marriages of heirs to Roman
Catholics, nor the common law governing male preference primogeniture, can
properly be said to be royal powers or prerogatives in Canada. Thus, they do not
affect the “office of The Queen” in Canada. The line of succession is determined
by UK law and not by the Sovereign or Canadian law.
Canada’s
Constitution provides that the Sovereign of the UK is also the Sovereign of
Canada. The preamble to and s.9 of the Constitution Act, 1867, when read
together, provide that The Queen exercising sovereign authority over Canada in
1867 was the reigning monarch of the UK. The legal rules relating to the
succession to the Throne are established by UK statute (the Act of Settlement,
1701, is but one of them) and the common law. Those rules and provisions do have
constitutional implications, in that they determine the selection of the person
who is the Sovereign of the United Kingdom, which in turn is recognized as the
Sovereign of Canada (as contemplated by the preamble to and s.9 of the
Constitution Act, 1867). That is different from stating that the UK laws of
succession are themselves part of the Constitution of Canada.
Moreover,
the Act of Settlement of 1701 and other UK statutes relating to the succession
to the Throne are not amongst the statutes declared by s.52 of the Constitution
Act, 1982 and the schedule thereto to be part of the Constitution of Canada.
There is no Canadian law of succession in that sense. This was confirmed by the
Ontario Superior Court in O’Donohue v. Canada, 2003, wherein Justice Rouleau
found that “Canada’s structure as a constitutional monarchy and the principle of
sharing the British monarch are fundamental to our constitutional framework.” In
light of the preamble of the Constitution Act, 1867 and its “clear statement
that we are to share the Crown with the United Kingdom,” he held that “it is
axiomatic that the rules of succession must be shared and be in symmetry with
those of the United Kingdom and other Commonwealth countries.”
That does
not make the Crown any the less Canadian. Nor does it mean that Canada does not
have a role to play in the changes to the laws governing succession. The
Preamble to the Statute of Westminster reflects the convention that the assent
of all Dominion Parliaments to alterations to the laws of succession must be
sought. This is not inconsistent with Canada’s sovereignty or the concept of the
Crown in Canada, but rather, is fully expressive of it. Indeed, the overarching
goal of the Statute of Westminster was to confirm the full equality of all of
the Dominions, rather than any colonial status. The convention expressed in the
preamble to the Statute of Westminster reflects the free choice of all of Her
Majesty’s realms to share one Sovereign chosen under one set of rules.
The 1982 repatriation did not incorporate the UK laws of succession into
either Canada’s Constitution or laws or amend the preamble to the Statute of
Westminster. That deliberate choice is a reflection of the decision to leave the
question of succession to be determined by UK law as opposed to establishing a
Canadian law of succession. The UK is not legislating on Canada’s behalf in this
regard, which it can no longer do thanks to the repatriation and the
Constitution Act, 1982. There remains a Crown in Right of Canada, and, as
before, the person occupying that office is determined in accordance with the UK
laws of succession.
There is no doubt that Canada remains fully capable
of choosing its own Sovereign, or indeed, of choosing not to have a Sovereign.
In such a case, of course, Canada would be required to amend the Constitution,
so as to clarify that The Queen referenced in s. 9 Constitution Act, 1867 would
now be chosen by rules other than those in place in the UK from time to time. In
such a scenario, Canada would be deliberately choosing to no longer share a
Sovereign with the other realms, and hence Canada would not be bound by the
convention expressed by the preamble to the Statute of Westminster, 1931. Such a
change would clearly be amending Canada’s Constitution. Such an amendment would
trigger the unanimity formula under s.41(a) of the Constitution Act, 1982, as
this would constitute a change to the office of The Queen.
This is not just the position of the MLC, but of the Government of Canada. I noticed that members of the Senate looking into this have some real concerns around the government's legal position, though there seems to be unanimous consensus that a constitutional amendment would not be required.
ReplyDeleteHi
ReplyDeleteI have read all your posts on this issue and it makes for *absolutely fascinating* reading--especially as I am a royalist based in London and have only basic understanding of the constitutional framework in other countries sharing the Crown. Thanks so much for that.
I noticed that there seems to be a lot of reluctance to end the personal union of crowns between Canada and the UK. But wouldn't be better, in the decades (and possibly centuries) ahead for Canada to develop its own country-based monarchy and Royal Family, separate from the UK, say from a branch of the current Royal Family (which would not diminish the historical links with Britain)? A monarchy usually can only survive if it develops a true human, emotional, social link with the country it represents--which is the reason the English monarchy survives still--and that can only be accomplished by a monarch living among his/her people.
Are there any particular reasons why having a monarchy based in the Canada would be a problem for Canadians (besides being distasteful to US neighbours, though tough luck on that)? I personally have always believed that the *ONLY* way monarchy will be able to survive into the 22nd century in Canada, Oz, NZ is to turn it into a local institution. Am I wrong in thinking that? Would love to know more about it as, from a UK perspective, Canada is always viewed as the most solid royalist country after own own. Many thanks for any info.
Alex David
http://happyandgloriousblog.blogspot.co.uk/
I'm a Canadian, and I can only speak for myself, but I haven't the slightest desire to see personal union broken. The link between the Crown Commonwealth countries is very important to me, not just for historical reasons, but continuing into the 21st century. There are advantages to a resident monarch, but we already have viceroys that do a similar job, while keeping our connection to Britain and the former Dominions beyond the Seas. It's like having the best of both worlds.
ReplyDeleteJust my thoughts.
Cheers, Matt
I would name your blog the dreamland! While Santa knocks at mens tie, bridesmaid dresses 2013, top wedding dresses our door just once per year, you blog is open the whole year – wow!
ReplyDeleteI will not pretend to understand much of this debate, but a couple of thoughts did come to mind.
ReplyDelete1. The UK and Canadian constitutions will, if I understand the debate correctly, agree upon the succession for many decades yet--the reigns of Charles III and William V as well as Elizabeth II's remaining years. That suggests plenty of time to sort this out: What am I missing?
2. I'm inclined to disagree with those who call the original initiative in the UK Parliament an act of trendiness. Elizabeth II is but the latest of several talented female monarchs the UK has had. Female leaders, while still rare are not unknown in the Commonwealth--a look at the list of Prime Ministers to the right of this page illustrates that as do the top ranks of many international corporations. With an heir freshly married and starting his own family, this debate seems to have come none too soon.