The Canadian Monarchy

ToadBrother · October 14, 2011

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.

I think you'd best read that ruling again, as it explicitly dealt with the issue of the legitimacy of the Act of Settlement as per the Charter of Rights and Freedoms. The Act of Settlement, being a written part of our constitution, cannot by definition by bound by the Charter. The Charter can only be enforced against ordinary legislation, and I think it's very clear here that any change to the Act of Settlement would require the Section 41 amending formula. If Parliament were to simply pass a new Act of Settlement and proclaim it as changing the succession, well, the Charter isn't at issue here, it's the fact that it is unconstitutional because it was not ratified as required by Section 41 of the Constitution Act, 1982.

The Charter of Rights and Freedoms has a very specific domain, and in effect it can only apply to ordinary legislation and to the powers that such legislation may grant or delegate to the various levels of government within Canada. A constitutional precept, whether written or unwritten, falls outside the domain of the Charter. The Charter was never meant to apply to other portions of the Constitution. If it had been, then there would have been amending or revocation language in the Charter sections of the Constitution Act, 1982. Because there is no such language, the Act of Settlement remains inviolate, and any amendment to that is not bound by the Charter either. In effect, you can have two aspects of the same constitution that seem to have divergent principles.

An example south of the border would be, for instance, a constitutional amendment banning the burning of the American flag. On the face of it, that would violate the First Amendment protections, but the First Amendment, like any constitutional statement, cannot be applied to other portions of the constitution in a way as to override it. Yes, this means some absurd situations could occur in any constitution, and perhaps, to some extent, the ability to pass a new Act of Settlement which still violates the Charter would seem absurd, and yet it would still stand.

If this fails, it won't be because of Charter challenges, as Section 41 pretty much gives Parliament and the provincial legislatures carte blanche powers over changes to the Crown, providing they can all agree, and because the precedent is already there that Catholics are denied the throne, your case becomes even weaker.

ToadBrother · October 14, 2011

I'm curious as to the ethnic descent, of those that DO support the monarchy in this thread. Yours is clear to us now, and thus self-explanatory.

Anyone else who's a staunch monarchist care to share your ethnic descent with us? Just curious...

Not a staunch Monarchist, as I've said, but my descent is German, Irish and a bit of French.

Smallc · October 14, 2011

French, Ukrainian, Scottish, a tiny amount of aboriginal heritage.....all wrapping up into a Manitoba Metis. I am not, btw, some kind of strong monarchists, but I don't see a reason to change what works.

Rupert S. Lander · October 14, 2011

I think you'd best read that ruling again, as it explicitly dealt with the issue of the legitimacy of the Act of Settlement as per the Charter of Rights and Freedoms. The Act of Settlement, being a written part of our constitution, cannot by definition by bound by the Charter. The Charter can only be enforced against ordinary legislation, and I think it's very clear here that any change to the Act of Settlement would require the Section 41 amending formula. If Parliament were to simply pass a new Act of Settlement and proclaim it as changing the succession, well, the Charter isn't at issue here, it's the fact that it is unconstitutional because it was not ratified as required by Section 41 of the Constitution Act, 1982.

The Charter of Rights and Freedoms has a very specific domain, and in effect it can only apply to ordinary legislation and to the powers that such legislation may grant or delegate to the various levels of government within Canada. A constitutional precept, whether written or unwritten, falls outside the domain of the Charter. The Charter was never meant to apply to other portions of the Constitution. If it had been, then there would have been amending or revocation language in the Charter sections of the Constitution Act, 1982. Because there is no such language, the Act of Settlement remains inviolate, and any amendment to that is not bound by the Charter either. In effect, you can have two aspects of the same constitution that seem to have divergent principles.

An example south of the border would be, for instance, a constitutional amendment banning the burning of the American flag. On the face of it, that would violate the First Amendment protections, but the First Amendment, like any constitutional statement, cannot be applied to other portions of the constitution in a way as to override it. Yes, this means some absurd situations could occur in any constitution, and perhaps, to some extent, the ability to pass a new Act of Settlement which still violates the Charter would seem absurd, and yet it would still stand.

If this fails, it won't be because of Charter challenges, as Section 41 pretty much gives Parliament and the provincial legislatures carte blanche powers over changes to the Crown, providing they can all agree, and because the precedent is already there that Catholics are denied the throne, your case becomes even weaker.

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.

Smallc · October 14, 2011

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.

Be its very definition, and new act of succession would amend the Constitution. I agree that Section 41 would probably need to be used, but there care some that argue it isn't necessary.

I don't really agree with the idea that the provinces wouldn't be willing to go along with something like the proposed changes, either. EVen if it isn't going as far as some would like towards equality, it's still doing something to bridge the gap, and that's the way that much of the change has occurred with regards to increasing equality.

Rupert S. Lander · October 14, 2011

Be its very definition, and new act of succession would amend the Constitution. I agree that Section 41 would probably need to be used, but there care some that argue it isn't necessary.

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.

I don't really agree with the idea that the provinces wouldn't be willing to go along with something like the proposed changes, either. EVen if it isn't going as far as some would like towards equality, it's still doing something to bridge the gap, and that's the way that much of the change has occurred with regards to increasing equality.

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.

Edited October 14, 2011 by Rupert S. Lander

Shwa · October 14, 2011

And pray tell what exactly is being hindered by the Statute of Westminster?

As SB clearly pointed out, the problem is not with the Statute of Westminster because, as we have seen, there are no prohibitive measures in the Statute that prevents it from being evolved into the stuff of a republic. What is prohibitive is the "tradition" of the system as it occupies the minds of it's adherents. You yourself often lament the lack of understanding of our government system by Canadians. Curiously, you also say that most people are apathetic, suggesting a linkage of some sort.

Shwa · October 14, 2011

Christ, we have children hungry...

Ah, the invocation of the starving children from a guy who incessantly whines about a few bloody noses in Caledonia.

Simply perfect.

ToadBrother · October 14, 2011

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.

I doubt it will be an issue. I think if there is to be an issue, it will be about the Monarchy entire, not just about the prohibition against Catholics.

ToadBrother · October 14, 2011

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.

The Act of Settlement is an integral part of our constitution, so whether or not it is deemed to require the Section 41 amending formula, it is not regular legislation, so again, the Charter does not apply. The Charter is not an issue in this debate, what is an issue is whether a change in the succession constitutes a change to the office of the Queen. Now I'll freely admit that the language here is very loose, but I still lean towards the provinces having to pass the amendment in each of their legislatures.

However, if it came to it, the Supreme Court could look at the Statute of Westminster and state that it effectively gave the Parliaments of the Realms the power to alter the Act of Settlement, in which case it could very well be that Harper is right, and this does not cross that threshold into actually changes to the office.

A wiser PM would reach out to the provinces, or at the very least get a reference opinion from the Supreme Court.

But I will reiterate, a change to the succession, no matter how many legislative assemblies are required to pass it in all the realms, is in none of them regular legislation. And amendment to the Act of Settlement is by definition a constitutional amendment. Now who exactly has the power to amend it, that's the point of possible contention.

Edited October 14, 2011 by ToadBrother

ToadBrother · October 14, 2011

As SB clearly pointed out, the problem is not with the Statute of Westminster because, as we have seen, there are no prohibitive measures in the Statute that prevents it from being evolved into the stuff of a republic. What is prohibitive is the "tradition" of the system as it occupies the minds of it's adherents. You yourself often lament the lack of understanding of our government system by Canadians. Curiously, you also say that most people are apathetic, suggesting a linkage of some sort.

I suspect most people in most countries have at best a fairly unreliable grip on how they are governed. Look at the election of George W. Bush in the US, and how many Americans were unaware of the nature of the Electoral College and its role in electing presidents.

capricorn · October 14, 2011

Ah, the invocation of the starving children from a guy who incessantly whines about a few bloody noses in Caledonia.

Simply perfect.

Get a clue Shwa.

Sam Gualtieri, 56, has been left brain-damaged and physically disabled. The Caledonia resident is not the same man to Sandra, his wife of 34 years, and their three grown daughters.
---

The 22-year-old Six Nations resident was convicted Friday of aggravated assault, and break and enter with intent to commit an indictable offence.

Ontario Superior Court Justice Alan Whitten revoked Smoke’s bail and ordered him into custody until his scheduled Oct. 28 sentencing.

http://www.thespec.com/news/local/article/588854--caledonia-builder-s-attacker-convicted

Bloody nose indeed.

g_bambino · October 14, 2011

The Act of Settlement is an integral part of our constitution, so whether or not it is deemed to require the Section 41 amending formula, it is not regular legislation, so again, the Charter does not apply.

I believe what Rupert is saying (though, he can certainly correct me if I'm wrong) is that if Harper attempted to do an end-run around the constitution (which he's been known to try) and change the succession law merely through an Act of Parliament, that Act, as simply a piece of legislation, would find itself subject to the Charter.

However, more important to that possibility is the fact that a mere Act of Parliament can't supersede the constitution, and so, despite what the hypothetical Act said about who was to be monarch, the law in force would still be that the King or Queen of Canada must be the most direct, non-Catholic descendant of Sophia, Electress of Hanover. (Rather like how the constitution still allows the governor general to call an election at any time, on the advice of the prime minister, despite the amendment to the Canada Elections Act that "fixed" election dates.)

[W]hat is an issue is whether a change in the succession constitutes a change to the office of the Queen. Now I'll freely admit that the language here is very loose, but I still lean towards the provinces having to pass the amendment in each of their legislatures.

I share the same opinion: a change to how the occupant of the office is selected is a change to the office itself, and therefore Section 41 of the Constitution Act 1982 comes into effect. It would be troubling if the Supreme Court found that Section 41 doesn't apply and the succession to the Canadian throne can be altered merely by the federal parliament alone. That would seem to open the door to the inane republican idea that Canada can rid itself of the monarchy simply by having parliament in Ottawa declare the throne vacant.

ToadBrother · October 14, 2011

I believe what Rupert is saying (though, he can certainly correct me if I'm wrong) is that if Harper attempted to do an end-run around the constitution (which he's been known to try) and change the succession law merely through an Act of Parliament, that Act, as simply a piece of legislation, would find itself subject to the Charter.

However, more important to that possibility is the fact that a mere Act of Parliament can't supersede the constitution, and so, despite what the hypothetical Act said about who was to be monarch, the law in force would still be that the King or Queen of Canada must be the most direct, non-Catholic descendant of Sophia, Electress of Hanover. (Rather like how the constitution still allows the governor general to call an election at any time, on the advice of the prime minister, despite the amendment to the Canada Elections Act that "fixed" election dates.)

I understand what he's trying to say, but ultimately, if, tomorrow, Parliament passed an amendment to the Act of Settlement, it would be in one of two states:

1. A legitimate constitutional amendment.

2. An unenforceable and ultimately incomplete amendment to the constitution that cannot be enforced until the ten provinces also pass it in their legislatures.

There is no third state of being regular legislation. Regular legislation, cannot, by definition, amend the constitution. In fact, I could well imagine the current Governor General, being a man of some knowledge in this area, would, unless he had assurances (ie. a reference opinion from the Supreme Court), possibly refuse Royal Assent. But even if the GG did, it would still ultimately rest upon either the provinces acceding to it or the Supreme Court ruling it was within Parliament's domain to make a change to the Act of Settlement.

I share the same opinion: a change to how the occupant of the office is selected is a change to the office itself, and therefore Section 41 of the Constitution Act 1982 comes into effect. It would be troubling if the Supreme Court found that Section 41 doesn't apply and the succession to the Canadian throne can be altered merely by the federal parliament alone. That would seem to open the door to the inane republican idea that Canada can rid itself of the monarchy simply by having parliament in Ottawa declare the throne vacant.

Well, in this particular case, it would be a fairly narrow reference point, in particular to whether the instrument for altering the succession that the Statute of Westminster effectively created can be used solely by the Federal Parliament to amend the Act of Settlement. It certainly doesn't open any other door that I can see. It is a very narrow question.

Edited October 14, 2011 by ToadBrother

wyly · October 14, 2011

I'm no constitutional expert but if the constitution needs to visited in order to change the rules of succession abolishing the monarchy in canada will be brought to the table as well

Smallc · October 14, 2011

I'm no constitutional expert but if the constitution needs to visited in order to change the rules of succession abolishing the monarchy in canada will be brought to the table as well

And if it is, you won't get agreement on it, nor should you, given the mess it would create.

g_bambino · October 14, 2011

I'm no constitutional expert but if the constitution needs to visited in order to change the rules of succession abolishing the monarchy in canada will be brought to the table as well

Abolishing the monarchy has been brought to the table on more than one occasion during constitutional talks, the most recent being in 1982. When the reality of what's involved becomes apparent, the idea quickly dies.

ToadBrother · October 14, 2011

I'm no constitutional expert but if the constitution needs to visited in order to change the rules of succession abolishing the monarchy in canada will be brought to the table as well

As others have noted, it was before, and it is as unlikely that all the provinces would agree now as it was unlikely thirty years ago, and whatever the status of amending the Act of Settlement, 1701, one thing is for sure, abolishing the Monarchy would require Parliament and all ten provinces to agree.

Rupert S. Lander · October 14, 2011

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.

wyly · October 14, 2011

And if it is, you won't get agreement on it, nor should you, given the mess it would create.

will harper chance that? the royal butt licker that he is harper wants no opportunity for the anti-monarchists to bring forth it's case, with every generation the number of non-british non-royalist population grows in canada, 70% and still growing...the moment the constituion needs to be opened to visit the issue of succession so will be the issue of abolishment...

the mess it would create is vastly over stated by the monarchist crowd in order to keep their kowtowing ways...

Tilter · October 14, 2011

And if it is, you won't get agreement on it, nor should you, given the mess it would create.

Is this whole package of royal shit even something that should be considered at any time by anyone? There is a possibility that the guy who is 2nd in line for the thrown may have a kid who may be an oldest offspring female who, (if the whole royalty hasn't been chucked by that time) could be considered an heir to the silly thing called the "THRONE"

Let's see what we are dealing with here.

1) the Queen isn't about to give up the throne to bigears--- that will only happen "over her dead body" so-- let's say she lasts another 10 years.or till 2021 AD. Then-

2) Big ears takes over the job & lasts for about 25 years, about 2046 AD

3) Willie takes over then & let's say he lasts another 25 years--- till about 2071 AD--- I really don't think the royalty bit will outlast bigears much less Willie so, even if it does happen, all of us will be dead & I really don't give a damn what the population of the UK of 2071 AD wastes their money on.

Why doesn't the government waste their time on stuff like the economy?

Edited October 14, 2011 by Tilter

wyly · October 14, 2011

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.

10 legislatures...you think quebec is going to play ball? that's optimistic more than any other province the people of quebec want the royalty out of canada...

g_bambino · October 14, 2011

with every generation the number of non-british non-royalist population grows in canada, 70% and still growing...

Bullshit. Not one shred of evidence to support that inane claim. On a republican's best day, the poll shows somewhere around 50% looking for abolition; and, even then, the question put to the respondents is usually some misleading tripe about Canada "severing ties" (as if we were bound against our will) to the "British monarchy" (as though the Statute of Westminster and Constitution Act 1982 never happened), and not even a suggestion of what the alternative might be. Face it: most people just don't care enough to know anything about the Crown, let alone eliminate it.

[+]

Edited October 14, 2011 by g_bambino

Smallc · October 14, 2011

the mess it would create is vastly over stated by the monarchist crowd in order to keep their kowtowing ways...

No it isn't. You saying something over and over doesn't make it true.

ToadBrother · October 14, 2011

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.

It would violate the tenets of the Statute of Westminster. This isn't a matter of custom (or more properly convention), but in our system of government, those customs deemed to be of a constitutional nature are as locked into amending formulas as those written down. There is no lesser class of constitutional precepts, the only difference being into which areas of Confederation they intrude; so that some require only Parliament, some require only Parliament and the provinces effects, some require the 7+50 formula (two thirds of the provinces representing at least 50% of the population) and some requiring Parliament and the legislatures.

Even "unwritten" conventions like the Royal Prerogatives still, if they were changed or revoked, would still require amendments based upon which domains to which they intruded.

If Canada, or any realm, wishes to break away from the others, they will have to repudiate the Statute of Westminster, which will mean constitutional amendments.

Edited October 14, 2011 by ToadBrother