Canada’s Constitutional Clusterf*ck

Our northern neighbor could be facing a major constitutional headache soon. Two law professors from Quebec have lodged a challenge to the Succession to the Throne Act, claiming that it is unconstitutional.

The Succession to the Throne Act is Canada’s attempt to implement the Perth Agreement, wherein the Prime Ministers of the 16 Commonwealth Realms where Queen Elizabeth II is head of state agreed to change the law of succession. Male-preference primogeniture is to be abandoned, and the Sovereign will be free to marry a Roman Catholic (though the Sovereign will still have to be in communion with the Church of England).

The most straightforward way for a realm to implement the agreement is to enact its own version of the Succession to the Crown Act that the British Parliament passed in April. That is exactly what Australia and New Zealand are doing. However, Canada tried to take a shortcut. Instead of specifically enacting the changes in their own law, they just passed a bill that essentially says “we agree with the British legislation.”

The Harper government maintains that the Sovereign of the United Kingdom is automatically the Sovereign of Canada. Therefore, the succession is, strictly speaking, the domain of British law. However, as James W. J. Bowden has pointed out on his excellent blog Parliamentum, this approach is inconsistent with the Canadian government’s actions during the Abdication Crisis of 1936. Although the British Parliament had passed His Majesty’s Declaration of Abdication Act, Prime Minister Mackenzie King recognized that it wouldn’t bind Canada unless the government ‘opted-in’ under section 4 of the Statute of Westminster 1931. If it hadn’t done so, Edward VIII would have remained the Canadian Sovereign.

But the current government of Canada can’t ‘opt-in’ like its predecessor since section 4 of the Statute of Westminster no longer applies and the British Parliament has surrendered its right to legislate for Canada. In 1982, at the request of the Canadian government, it passed legislation that explicitly relinquished its vestigial authority over Canadian affairs. The relevant section is pretty damn unambiguous: “No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law.” So it’s hard to see how the British Succession to the Crown Act could have any legal force in Canada whatsoever.

There’s also the troublesome matter of the Canadian constitution. Under section 41 of the Constitution Act 1982, any constitutional amendment “to the office of the Queen” requires the agreement of all the provinces plus the federal Parliament. The Harper government claims that section 41 only applies to changes that affect the Queen’s constitutional status or her powers. Therefore, changing the law of succession doesn’t require a constitutional amendment.

But Canadian academics have questioned that reasoning. Writing in Maclean’s, Philippe Lagassé, an assistant professor of public and international affairs at the University of Ottawa, argued that since the Crown is a corporation sole, there can be no distinction between the office and the officeholder. He went on to quote the great English jurist William Blackstone, who had this to say about corporations sole:

Corporations sole consist of one person only and his successors, in some particular fashion, who are incorporated in law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense, the king is a sole corporation. [Emphasis mine]

Because of the fusion of office and officeholder inherent in a corporation sole, the government’s contention that the succession is somehow separate from the office seems hard to swallow.

Leaving aside the Crown’s status as a corporation sole, there is also case law that suggests that the law of succession is actually part of the constitution. In 2002, a Toronto politician named Tony O’Donohue mounted a legal challenge to the Act of Settlement 1701 on the grounds that it discriminated against Roman Catholics and was therefore incompatible with the Canadian Charter of Rights and Freedoms. The Ontario Superior Court of Justice dismissed the challenge, holding that the Act of Settlement was part of Canada’s constitution and could not be overruled by the Charter. Mr. Justice Rouleau also suggested that striking the discriminatory portions of the Act of Settlement could itself be unconstitutional since it would amount to changing the office of the Queen without following the procedures set out in section 41 of the Constitution Act 1982.

Curiously, Mr. Justice Rouleau seemed to have difficulty with the idea of the divisibility of the Crown. On the one hand, he held that the law of succession was part of Canada’s constitution, yet he also suggested that Canada was “united under the Crown of Great Britain.” But if Canada is subject to the British Crown, it seems hard to see how the law of succession could be part of the Canadian constitution. The fact that Canada can alter the office of the Queen by a constitutional amendment seems to me to be pretty conclusive proof that the Crown is now a Canadian institution.

The Quebecois law professors are going to put the Harper government in a very uncomfortable position when their case finally comes before the Quebec Superior Court. Not only do they allege a violation of section 41 of the Constitution Act 1982, they also claim that the act is contrary to the Charter of Rights and Freedoms because it restricts the monarch’s choice of religion. This puts the government between Scylla and Charybdis. If it argues that the religious provisions are not justiciable because they are part of the constitution, it essentially confirms the section 41 challenge. But if the law of succession is outside the constitution, then the religious provisions could be in conflict with the Charter!

If the Succession to the Throne Act is ultimately ruled unconstitutional, Canada will likely have to amend its constitution in order to implement the Perth Agreement, and that could get messy. Since the amendment would need the backing of all the provinces, Quebec could use it as a bargaining chip to try to win sovereignty-related concessions. Should Canada fail to implement the Perth Agreement for whatever reason, the other Commonwealth Realms could find themselves stuck. The original plan was for the changes to take effect on the same day across all sixteen realms (that is why the UK’s act doesn’t come into force until the Lord President makes a commencement order), but if there isn’t unanimity, the other governments might decide to back away rather than create a situation where a woman becomes Queen of fifteen of the realms but her younger brother becomes King of Canada.

On the other hand, it’s possible that fears of a Quebecker monkey wrench being thrown into the works could be overstated. I don’t know if Stephen Harper would be willing to engage in much horse trading over a constitutional amendment. Given that the first two people in line for the throne are both men, changing the succession is hardly urgent. If Quebec tried to block the amendment, Harper might be content to call their bluff, secure in the knowledge that the changes don’t need to take effect anytime soon (plus, Quebec wouldn’t actually gain anything by blocking the amendment). So if push comes to shove, Quebec might just hold its nose and vote for the amendment.