After I named my sons Louis, Charles and Jacques, my sister-in-law seemed skeptical: “Really? All names of kings?”
You can be sure that she, like most members of my extended family in Quebec, couldn’t care less what the name of the next British king will be, either – or whether Kate Middleton will bear a girl or boy, for that matter. Despite the cult following of the Duchess and Prince William in the global fanzine trade, support for the monarchy has actually declined in Quebec over the past few years. Less than a quarter of Quebeckers think the Crown has any relevance to Canadian history.
And yet, there is now a legal challenge, filed in Quebec Superior Court, fighting what appears to be a battle on behalf of the monarchical status quo. The challenge seeks to overturn the federal government’s approval of the Succession to the Throne Act, designed to end the age-old British practice (enshrined in laws dating from the 17th century) of male primogeniture in the Royal Family.
Have Quebeckers come out of the closet as monarchists? Not quite. Geneviève Motard and Patrick Taillon, the Laval University legal scholars behind the challenge, are involved in a much more significant dispute about the nature of federalism. Invoking the example of Australia, where all six member states approved the Succession Act, and Section 41 of Canada’s Constitution Act of 1982, they claim that any change to the Queen’s role needs the explicit approval of every provincial legislature, including the National Assembly. (They also claim, while they are at it, that the federal government cannot agree to a British law that discriminates on the basis of religion – since no Catholic may be heir to the British throne – and that the statute must be translated into French to be approved under Canadian law.)
Ottawa, meanwhile, claims that it is not meddling with British law, just doing its “constitutional duty” as a member of the Commonwealth. But a precedent exists since Canada did, in fact, approve earlier modifications to the Succession Act upon the abdication of Edward VIII in 1936.
The petitioners are probably not all that interested in the Royal Family, past or present. Even Pauline Marois’s Parti Québécois government has made clear it has other things to worry about, such as its reference on Senate reform in the Quebec Court of Appeal.
Together, these two legal challenges raise important questions about the role of the provinces in the federation, and whether Quebec can still exert a “veto” on amendments to the Constitution.
This is the main thrust of the case on succession. It is also the motive behind the support of constitutional expert Henri Brun, best known for representing Quebec’s legal challenge to the 1981 patriation and for describing it as a “coup d’état.”
Prof. Brun, a member of the PQ’s “brain trust” on sovereignty, has acknowledged that reopening the 1982 Constitution on the basis of the patriation process is “judicially impossible,” but he sees the succession challenge as a viable strategy to force Ottawa to engage with the provinces on constitutional matters. The irony is palpable: Sovereigntists are basing a challenge to the federal government, and an attempt to shore up Quebec’s veto, on the argument that the monarch is the “Queen of Quebec.”
While the majority of Quebeckers remain unsympathetic to the Queen – or her senators in Ottawa – they may soon become very interested in these vestiges of royal rule, which could have a direct impact on Quebec’s constitutional future, and whether the question of succession has an eventual impact on secession.
Antonia Maioni is an associate professor at McGill University.
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