Who takes the Crown?

A court case over the rules of succession has divided both the country’s corps of constitutional lawyers and its monarchists

The current hearing in a Quebec Superior Court over how someone gets to be King or Queen of Canada is a case that monarchists, such as myself, find fascinating, but would rather not by taking place in the public spotlight.

If the court decides that the Harper government acted correctly two years ago when it changed the succession rules with a simple Act of Parliament to say that Canada will do what the British do, people who think the monarchy in Canada is no more than an ongoing, unacceptable relic of our colonial past will say, “Aha!”

If the court says — as ultimately I hope it does — that the monarchy in Canada is not the same as the monarchy in Britain or anywhere else, and the succession rules for this country can only be changed in this country by a constitutional amendment requiring the assent of Parliament and all 10 provincial legislatures, we will trigger the four most paralyzing words in our political lexicon: opening up the Constitution. In this case, too, the republican hounds will be unleashed in a dreary, baying debate over whether Canada should retain the monarchy at all.

Thus, not surprisingly, the hearing has divided both the country’s corps of constitutional lawyers and its monarchists (there’s a monarchist group on each side in the Quebec court hearing). Plus the Quebec government has intervened on the side of the challengers. And those who wish that the outcome will be a muchneeded public education in the real and unique nature of monarchy in Canada are, in all probability, whistling in the wind. There are too many no-win elements to this and the public’s attention span on the constitutional intricacies of the monarchy is clinically short.

University of Laval law professors Patrick Taillon and Geneviève Motard, who initiated the court challenge and made it into a class project for their students, are to be commended for their pedagogical imagination.

The backstory is that, in 2011, the heads of government of the 16 countries where the Queen is head of state agreed to change the rules of succession to end the primacy of male offspring and to cease excluding royal offspring who either become or marry Roman Catholics from the line of succession (these rules directly affect two Canadians: Montreal’s Autumn Kelly, married to Princess Anne’s son, and Newfoundland’s Sylvana Tomaselli, married to the son of the Queen’s first cousin). The rules change also specifies that only the first six persons in line for the Throne need the Sovereign’s permission to marry.

The Parliament of Australia, which is a federation like Canada, accepted that its six constituent state governments have an independent interest in the Crown and enacted enabling legislation with their consent.

The Parliament of Canada took a unilateral approach without seeking the cooperation of the provinces and enacted Bill C-53 expressing Parliament’s assent to changes in British succession law — despite the Constitution saying that changes to “the office of the Queen” require the consent of Parliament and the legislatures of all 10 provinces with the result that the government of Quebec has objected to what it sees as Ottawa’s one-sided constitutional tinkering where the amending formula says it can’t tinker.

The federal government cites the preamble of the Constitution Act, 1867 — expressing the desire of the Canadian provinces “to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland” — as justification for its position that who gets to the Throne remains a matter for the British to decide and all that’s required is for the federal Parliament to assent.

The challengers for their part have several cool arguments.

They cite Canadian court decisions stating that the rules of succession dating back to 1700 and earlier have been embedded in (“received into”) Canadian constitutional law.

They point out that the Crown has been divisible — one person as separate sovereigns for the U.K., Canada, Australia and so forth — since the Statute of Westminster of 1931. They argue that the authority for Canada’s Parliament to give assent to U.K. legislation — initially embodied in Section 4 of the Statute of Westminster — ended with the passage of the Constitution Act, 1982 (and Section 4’s repeal).

And finally there’s University of Ottawa constitutional law scholar Philippe Lagassé’s argument that since the Crown in Canada is a “corporation sole” (meaning a legal entity), the determination of who gets to personify it by definition refers to “the office of the Queen.”

The students of professors Taillon and Motard are reporting on the court proceedings by Twitter; the Quebec and British press are giving the greatest amount of coverage — actually, the only coverage; and Taillon has said that he and his colleague don’t object to the rules change, they simply want the Constitution adhered to. The Harper government’s aversion to a constitutional amendment is understandable, but them’s the rules.

One way or another, the outcome will create a lot of noise on an issue that (as former governor general Edward Schreyer once reputedly said), on a list of 100 things that should concern Canadians and their politicians, ranks 101.