A royal boy
L. Ian MacDonald on succession politics
What if it had been a girl rather than a boy? You know, the royal baby. What if it had been Princess Diana rather than Prince George?
Well, then, it would have been a very interesting constitutional question, rather than what turns out to be a mostly hypothetical one for now, about gender in the royal succession. At least, here in Canada anyway. Canada is one of 16 Commonwealth countries that joined Westminster in passing legislation “to ensure,” as the Canadian bill puts it, “that succession does not depend on gender and to end the disqualification arising from marrying a Roman Catholic.”
All parties in the House supported Canada’s Succession to the Throne Act, 2013, which assents to the U.K. legislation — even the Bloc Québécois. But two Quebec professors have taken Ottawa to court, challenging the law on constitutional grounds. With exquisitely bad timing, the Quebec government chose the day of the prince’s birth to announce it was joining the two Laval University profs in their case. And they’ve got a point. Article 41 of the Constitution Act, 1982, requires unanimous consent of Ottawa and the provinces to amend the Constitution relating to “the office of the Queen, the Governor-General or the LieutenantGovernor of a province.”
Changing the rules of succession arguably affects “the office of the Queen.”
How did this get in the Constitution? The general amending formula requires the consent of Ottawa and seven provinces representing 50 per cent of the population: the 7/50 formula.
But changing the office of the Queen requires unanimity.
It happened on the night of Nov. 4, 1981 in a meeting at 24 Sussex between Richard Hatfield and Pierre Trudeau. Hatfield, the premier of New Brunswick, was one of only two premiers supporting Trudeau’s patriation of the Constitution with a Charter of Rights. The other was Bill Davis of Ontario, who was also there.
Trudeau had called a first ministers’ conference after the Supreme Court ruled constitutional convention required a consensus of provinces, and after three days they made a deal: Trudeau got patriation and the Charter and the dissenting premiers got the notwithstanding clause and the 7/50 amending formula.
But Hatfield wanted to make sure it would take unanimous consent to change the office of the Queen. In essence, he was protecting the Crown from abolition. Trudeau, who owed Hatfield for his support, had no problem with it. It was one of those things in every deal that didn’t cost anyone anything.
“I got the Queen in there,” Hatfield said over drinks back at his hotel suite later that famous night, remembered in Quebec as “the night of long knives” for the abandonment of René Lévesque by his erstwhile allies in the Gang of Eight.
That part of Section 41 of the 1982 Constitution could be called the Hatfield clause.
Had the new royal heir been a girl, the question of “the office of the Queen” would have been anything but obscure. In the event, it will be at least three generations before the matter comes up in practice.
When Rob Nicholson was still justice minister, the government was confident of its case, and at the time hadn’t ruled out sending it directly to the Supreme Court. Since the cabinet shuffle, Peter MacKay’s new office at Justice has decided to leave it in the Quebec Superior Court, which will hear arguments in August.
Pauline Marois might have some explaining to do on why she’s joining a case opposing gender equality, not to mention non-discrimination on religious grounds. But the question for the court is whether the changes to the succession are also changes to the office of the Queen. If the answer is yes, and upheld by the higher courts, then Ottawa would have to ask the provinces for a resolution in the 10 legislatures. And Quebec, under the present separatist government, could well refuse.
In other constitutional news this week, Saskatchewan Premier Brad Wall went to the premiers’ annual summer retreat at the Council of the Federation, seeking support for abolition rather than reform of the Senate.
This is very interesting. Any province can initiate a constitutional amendment and the 7/50 amending formula applies to “the powers of the Senate and the method of selecting Senators.” He can’t count on Quebec’s support for that. As a spokesperson for Marois put it, somewhat understating the case: “Our government doesn’t have a goal of reforming federal institutions.”
Meanwhile, the Conservative government has a reference pending in the Supreme Court in which it asks half a dozen questions, including the constitutionality of term limits, how to elect senators and how to abolish the Senate. To make matters more interesting, Quebec has a case in the Court of Appeal which essentially holds that an elected Senate would change “the method of selecting Senators” under Section 42 of the 1982 Constitution and requires a 7/50 amendment. The case was launched by the previous Charest government.
Only in Canada, you say? Definitely.