Rupert S. Lander

Well, it appears that under Cameron's proposal it will be more of a non-Anglican prohibition since the British monarch is head of the Church of England. I think as big if not the bigger issue is not the question of favouritism and/or discrimination between denominations - the succession issue challenges a core Canadian value - our belief in the separation of church and state. England wants to maintain a Protestant succession because, while England today tolerates different religious faiths, it maintains an established church and the monarch heads that church. So, putting a Catholic or any non-Anglican on the British throne would be awkward to say the least. The role of the Canadian Parliament in this debate isn't to tell the British what to do, it's to defend our values. To keep our succession perfectly symmetrical with the British proposal Parliament would need to enact a succession law that restricts the Canadian throne to Anglicans only. Not only does that endorse religious discrimination, it endorses the values of a foreign nation, specifically, their rejection of the separation of church and state. In my view, this sort of disrespect for Canadian values is simply unacceptable.

You misunderstand me. I didn't say the Statute of Westminster had been repealed, I noted that subsequent legislation, especially the Constitution Act, 1982, reaffirms Canadian independence. The Statute of Westminster may be a part of the constitution. But I do think Parliament, in concert with the ten legislatures, can enact any amendment they please, notwithstanding the Statute of Westminster (or the Charter). They could enact an amendment to alter the succession, they could enact an amendment that replaced the whole constitution with a republican version. Or does the Statute somehow bar that?

If the Charter's irrelevant then what does the Statute of Westminster have to do with this? Basically, you're saying the Statute of Westminster is as toothless as the Charter of Rights in this matter. I was discussing succession reform enacted a potential amendment of the constitution that had unanimous consent of the provinces. Clearly, if a constitutional amendment can contravene the tenets of the Charter (and I never intended to say they couldn't) then it can just as easily contravene the tenets of the Statute of Westminster. Besides, even if Parliament did infringe on repudiate the Statute of Westminster by means of a constitutional amendment, that wouldn't mean we were repudiating our independence since the Statute has been superseded by the Constitution Act, 1982.

Cameron's letter to the other PM's explicitly deals with the prohibitions on heirs marrying Catholics and growing up as Catholics. Because the British monarch is also Supreme Governor of the Church of England, he or she cannot as it stands be a Catholic (or any other denomination besides Anglican it would seem).

As hard as trying to sell a succession amendment that bars Catholics in Parliament would be, selling a succession amendment that bars all non-Anglicans would be 1000 times harder still. And yes making this whole issue primarily about separating church and state is better than looking like you're just trying to resolve the gripe of one particular denomination, especially if it's really not just their gripe anymore.

The Charter would indeed be a non-issue if headlines like this are accurate: http://www.catholicculture.org/news/headlines/index.cfm?storyid=12054 Harper should clarify his position on Catholic succession ASAP. Certainly, since the Canadian head of state plays no ecclesiastical role, there is absolutely no justification whatsoever for the Parliament of Canada to enact a new Succession to the Throne Act that places restrictions on the religious affiliation of the Soveriegn. Should the U.K. Parliament resolve to amend the succession as currently proposed by Cameron, the logical recourse of the Canadian Parliament would be to enact a succession amendment removing the gender preference altogether and removing the religious restrictions altogether. If provincial consent be required for that change, I doubt it would be a problem. Yes, that would technically make the succession in Canada (slightly) different from that of the U.K. in breach of established custom, but that is fine. As others have posted, Parliament in concert with the ten legislatures could most certainly change the succession however way they like, irrespective of the wishes in other Commonwealth Realms. Customs are not the law.

The issue is whether amending the succession alters "the office of the Queen" - the PMO seems to be taking the position that it doesn't. I am not a lawyer - but it wouldn't take a legal whiz to argue that a new law that may affect the succession three generations after the demise of the current Sovereign will not in any way affect the rights, the duties, the privileges and/or the perogatives of Elizabeth II, Queen of Canada. The problem isn't that some provinces might not agree, it's that ONE might not agree. It only takes one. The Premiers of the two largest provinces both happen to be Catholic.

So you are suggesting that there is in fact only one way to amend the succession and that is to amend the constitution under Section 41. Yet if you read this G&M article: http://www.theglobeandmail.com/news/politics/ottawa-notebook/harper-backs-british-pms-plan-to-modernize-royal-succession/article2199964/ OF COURSE an amendment under Section 41 would not be subject to Charter scrutiny (I never suggested otherwise), BUT - it seems pretty clear the PMO does NOT favour a constitutional amendment. And for good reason - the odds that all ten provinces will ratify an amendment that elimiantes the sexism and allows heirs to marry Catholics yet still blatantly discriminates against future Catholics acceeding to the throne are less than zero. In any event, it seems quite clear Harper is not willing to reopen the Constitution over this. The PMO view appears to be that if Parliament can pass a law that amends the succession to the Crown, that in itself does not alter the rights and perogatives of the Soverign, it simply alters who the future Sovereign might be. And that, in the apparent view of the PMO, does not require a constitutional amendment. But any new Act of Succession that does not amend the Constitution is, in fact, ordinary legislation that is bound by the Constitution, including the Charter. Of course, a succession amendment enacted by ordinary Parliamentary legislation that both eliminated gender preferences AND permitted heirs to accede to the Canadian throne regardless of their religious affiliation, including Catholic heirs, would have no trouble with the Charter. Whether it would withstand a challenge under Section 41 of the Constitution - the PMO seems to think it would - personally I do not know.

As far as I can see, so far as Canada is concerned updating the laws governing succession to the Canadian Throne without completely removing the restrictions on Catholics (not just relaxing them as PM Cameron proposes) is a complete non-starter. From a political standpoint, it's an unjustifiable position in this country. Perhaps more importantly, it would be blatantly unconstitutional. There are two possible ways to change the Crown's succession in Canada. One would be to amend the Constitution and get all ten provinces to ratify the change. Obviously, predominantly Catholic provinces like Quebec are not going to ratify any change to the succession that explicitly promotes discrimination against Catholics. And Harper is clearly in no mood to reopen the Constitution over this. The other way is to simply enact a new Act of Succession in Parliament. This seems to be the PMO's preference - apparently they believe that a law that simply changes the succession to the Crown (without altering the rights and perogatives of the monarch) does not require a constitutional amendment that would need unanimous approval. But - if that view is correct, any new Act of Succession will still have to pass constitutional muster. Most importantly, the Act would have to conform to the Canadian Charter of Rights and Freedoms, which quite clearly prohibits discrimination based on religious affiliation. Going back to the O'Donoghue v. Canada case that challenged the Act of Settlement, that case was dismissed only because it was deemed non-justicable - the Act of Settlement was deemed part of the "unwritten" part of the Constitution which made it immune to the Charter. On the other hand, any new Act of Succession passed by Parliament alone would be, in effect, an ordinary law and would have no such immunity from Charter challenges.