John Fraser is master emeritus of Massey College at the University of Toronto, and founding president of the Institute for the Study of the Crown in Canada at Massey College. D. Michael Jackson is the current president of the Institute and editor of its latest book, Royal Progress: Canada’s Monarchy in the Age of Disruption (Dundurn, 2020). Serge Joyal is a former Liberal senator from Quebec and Institute board member, and intervened on the side of the Attorney-General of Canada in the challenge to the succession legislation. Michael Valpy is a senior fellow in public policy at the University of Toronto’s Munk School of Global Affairs and Public Policy, and an NDP candidate in the 2000 federal election.
Politics is not the only human endeavour to make strange bedfellows. For instance – as an April judicial ruling makes clear – some supporters of the Crown in Canada can sometimes find themselves in uncomfortably close quarters with Quebec nationalists.
In that ruling, the Supreme Court of Canada upheld the Quebec Court of Appeal’s decision on the validity of Canada’s Succession to the Throne Act, 2013. The Act in question, which had been passed unanimously by Parliament, gave Canada’s approval to British legislation ending male primogeniture – male heirs to the throne outranking female heirs – and repealing an outdated provision discouraging heirs to the throne from marrying Roman Catholics (in which case they would be removed from the line of succession). The heads of government of the 15 Commonwealth realms that share the Queen as head of state, among them Canada, agreed on these measures at a 2011 meeting in Australia.
What were the objections to such apparently sensible legislation?
Two Laval University law professors challenged Canada’s succession statute in the Quebec courts on the grounds that assent to alterations proposed in a British law could not change the rules of royal succession in Canada. This, they argued, required not only a constitutional amendment, but one triggering the “unanimity” section 41 (a) of the Constitution Act, 1982. This stipulates that the House of Commons, the Senate and all 10 provincial legislative assemblies must consent to changes to the office of the Queen – a process that would be fraught with delay and have the potential for constitutional mischief-making.
The Canadian government responded by contending that the changes to the royal succession were fully in accordance with a constitutional convention that, through the principle of “symmetry,” the reigning monarch of the United Kingdom is automatically recognized as the sovereign of Canada. While British laws no longer apply to Canada, changes to the rules of royal succession require the consent of all the realms, which is what Canada granted through its 2013 Act.
The court challenge was, unsurprisingly, backed by the Government of Quebec. But oddly enough, certain supporters of the monarchy joined them in advocating for it, too. That’s because of the core argument to the appeal: the claim that two venerable British statutes essential to determining the rules of succession to the throne, the English Bill of Rights and the Act of Settlement, were part of the Canadian constitution and therefore required amendment.
In 2016, however, the Quebec Court concluded they were not, and did not. Instead, it recognized – as had the Supreme Court in earlier cases – that the principles underlying these two statutes were incorporated into the Constitution of Canada through the preamble of the Constitution Act, 1867, which records the desire of the originating provinces to be “federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom.” This preamble carries into the Canadian constitutional framework a principle of recognition that the King or Queen of the United Kingdom is automatically the Sovereign of Canada, a principle complemented by that of hereditary succession. A similar principle is found in the preamble to the Statute of Westminster of 1931, where the Commonwealth realms agreed that, though the same monarch notionally wears several Crowns, each is the symbol of a distinct sovereignty and exercises executive and legislative power according to each country’s constitutional framework.
After that 2016 Quebec Superior Court ruling upholding the Canadian position, three justices of the Quebec Court of Appeal agreed in 2019. The Supreme Court of Canada has now made that the definitive ruling.
Another objection to the 2013 Act was the argument that Canada effectively reverted to colonial status by assenting to a British law rather than passing its own law of succession, as Australia and New Zealand had done. But Mark Walters, now dean of law at Queen’s University, wrote in 2015 that the Canadian “rule of Crown identification” – recognizing the current British monarch as Canada’s sovereign – is equally as valid as the Australian and New Zealand “incorporated law of royal succession” – passing their own legislation. The various realms achieved the same end in different ways, and all of them made their own decisions as fully independent sovereign states. In the Constitution Act, 1982, Canada purposefully entrenched the principle of a constitutional hereditary monarchy. There was nothing colonial in that decision either.
By endorsing the 2013 succession legislation without a constitutional amendment, there was also concern on the part of some monarchists that courts were gutting the unanimity provisions in the 1982 Act designed to protect the historic institution of the Crown against the whims of transitory politicians. The Quebec Appeal Court, however, noted that the unanimity formula in section 41 (a) of the 1982 Act recognizes and confirms Canada as a constitutional monarchy; it does not address the procedural rules that identify the persons next in line to the throne. In other words, section 41 (a) continues to guarantee both the existence of the monarchy in Canada and what the Queen does. It is a British law agreed to by Canada that defines who the Queen is.
The beneficial influence of the Canadian Crown continues to backstop our nation’s constitutional order. Despite its detractors, most Canadians seem content with the situation as it stands – the Crown as a guarantor of our evolutionary system of parliamentary government, with a dignified upholder of our constitutional roots and history at the top. The Crown is key to the relationship with Indigenous peoples, and it’s useful in our cultural moment, as we reckon with racism. It’s a better mantle to wear during a prolonged period of still shaky reconciliation than a republican system which would ride roughshod over Indigenous aspirations of nation-to-nation evolution.
Fervent supporters of the Crown likely account for 15 per cent of the country; Republicans who feel the shame and indignity of the perceived constitutional stranglehold of the “British Crown” probably account for the same number of 15 per cent. In between are most Canadians, who are content to avoid tangling up the present situation, are appalled at the state of republicanism south of the border, and are respectful of the sense of service rendered by the holders of the Crown and the uncomplicated compromise our system offers with a monarch, a national governor general, and provincial lieutenant governors.
The Canadian approach to royal succession is the right one for a mature country that has, by design and by luck, maintained a successful system of governance that has stood the test of time and spared the country a recipe for perpetual discord. With this latest ruling against a challenge by a strange coalition, the Canadian Crown can continue that work.
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