Canada’s Royal Succession Bill

In 2011, at a meeting of the Commonwealth Heads of Government held in Perth, Australia, the 16 countries which have Queen Elizabeth as their head of state agreed to modernize the rules of royal succession. The proposed changes would put an end to three current practices:

  • male children inheriting the throne ahead of their older, female siblings.
  • a ban on a monarch or direct heir to the throne marrying a Roman Catholic.
  • the requirement for all descendants of George II to obtain the monarch’s permission to marry or else have their marriage declared void.

The Canadian government recently introduced Bill C-53, An Act to assent to alterations in the law touching the Succession to the Throne. A motion was moved, and agreed to unanimously, to give the bill second and third reading the same day, and it is now before the Senate.

For many, however, the Canadian bill is problematic and potentially even unconstitutional. Essentially, it merely assents to the Bill currently before the UK Parliament. You can track the progress of the UK bill as well as read it in its current form here. By merely assenting to the UK bill, Canada is merely agreeing with whatever changes are ultimately adopted by the UK Parliament.

Many constitutional experts are arguing that this approach is not sufficient, and that Canada would actually be required to amend its Constitution in order to adopt these changes. The constitutional amendment would also require the support of all of the provinces.

I am by no means a constitutional expert, and so I will  link to articles written by people far better qualified to explain this complex issue.

1. For an excellent overall background piece, please read Janyce McGregor’s Canada’s royal baby bill risks constitutional complications. McGregor explains how this issue came about, and provides an overview of the main constitutional arguments in a very accessible way.

2. For a more detailed discussion of the constitutional questions raised by Bill C-53, please read Prof. Philippe Lagassé’s The Queen of Canada is dead; long live the British Queen:

If the United Kingdom cannot legislate the rules of succession for the Canadian Crown, it follows that Canada must have the power to determine the rules of succession for its Sovereign and head of state. At present, the Canadian rules of succession are those that were inherited from the United Kingdom. And an argument might be made that they must mirror those of Great Britain absent a constitutional amendment, owing to the preamble of the Constitution Act, 1867. But mirroring the British rules does not mean Canada can simply assent to British bills to bring its succession into line with the United Kingdom’s. If Canada is a sovereign state and has an independent Crown, the Canadian legislatures—Parliament and the provincial legislatures—must pass substantive legislation to ensure that Canada’s rules of succession reflect those of Great Britain, not merely assent to a British law. Here again, the Governor General’s granting of Crown consent to the Canadian bill indicates the government is at least partially aware the British and Canadian Crowns cannot be affected by the same British law.

3. Australian constitutional expert Anne Twomey is also baffled by the Canadian government’s approach, as she explains in The royal succession and the de-patriation of the Canadian Constitution:

Hence, all that the Canadian Bill appears to do is to agree to a change in the law of succession in relation to the British Crown that does not in any way affect, or purport to affect, the succession to the Crown of Canada. The consequence would be that if the eldest child of the Duke and Duchess of Cambridge was a girl and a later child was a boy, the girl would become Queen of the United Kingdom and the boy would become King of Canada (assuming that neither jurisdiction had become a republic by that time).

(…)

Likewise, s 2 of the Canada Act 1982 provides:

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.

It would therefore seem to be abundantly clear that a Canadian law that simply ‘assents’ to a British law that changes succession to the British throne, does not and cannot affect succession to the throne of Canada.

Similarly, the Canadian Royal Heritage Trust argues:

Queen Elizabeth II was proclaimed in Canada as the Sovereign and “Supreme Liege Lady in and over Canada to whom we acknowledge all faith and constant obedience” before she was proclaimed Sovereign in the United Kingdom. Of course Elizabeth II had become the Queen of both countries the instant that her father had died, by virtue of the laws of Succession. Her sovereignty was announced to her peoples, not granted, by the respective Accession Proclamations, but Canadians were able to recognize who their Sovereign was without reference to any proclamation of recognition in the United Kingdom because the laws of Succession in the two countries produced the same Sovereign. If there were no laws of Succession in Canada the Canadian Accession Proclamation in 1952 could not have been issued first. For the record, it was the already proclaimed Queen of Canada who was then proclaimed as Queen of the United Kingdom.

Of course, not everyone agrees with these arguments. For example, Prof. Mark Walters of Queen’s University dismisses these concerns:

The question has produced controversy — but it shouldn’t.  The short answer is simple: under the law of the Constitution of Canada, the king or queen of Canada is whoever happens to be the king or queen of the United Kingdom. Although the government of Canada introduced a bill into the Canadian Parliament this month that, when enacted, will express “assent” to the changes to the rules of royal succession to be made by the British Parliament, this assent will be given as a matter of constitutional practice or convention only; it is not required by, and it will have no effect within, Canadian constitutional law. Again, the rule of Canadian constitutional law is simply that the Crown in Canada is worn by whoever wears the Crown in the United Kingdom. While British rules on who wears the Crown in Britain are complex and open to change from time to time, the Canadian rule on who wears the Crown in Canada is simple and, for the time being, fixed.

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