So, I’ve sat through the Standing Senate Committee on Legal and Constitutional Affairs first hearing by webcast. The music on their livefeed is surprisingly jazzy! Anyway, down to brass tacks.
The government approach
To recap, there are two key parts to the government’s argument. First: there is no Canadian law of succession and that the Queen of Canada is the queen because she is the Queen of the United Kingdom. Adherents point to the Constitution Act 1867 where the preamble noted that:
Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom:
This also is supported by the fact that section 2 of the Constitution Act 1867 stated the law of succession to the throne but was repealed before 1900 because it was seen to be redundant.
This was obviously before the Statute of Westminster and the division of the Crown, but even after that the principle was adapted to the new constitutional reality and as expressed by the then-prime minister Louis St Laurent:
Her Majesty is now the Queen of Canada, but she is the Queen of Canada because she is the Queen of the United Kingdom and because the people of Canada are happy to recognize as their sovereign the person who is the sovereign of the United Kingdom. … It is not a separate office … it is the sovereign who is recognized as the sovereign of the United Kingdom who is our Sovereign.
This was reflected in the Royal Styles and Titles Act 1953 where the Queen had the title of:
Elizabeth the Second, by the Grace of God of the United Kingdom, Canada and Her other Realms and Territories….
This was again echoed in the case of O’Donohue v Canada (2003) where the judge repeated this assertion in his closing argument.
Second: the Statute of Westminster’s amending formula still applies. This formula is expressed in the preamble to the statute:
And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom:
And whereas it is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend to any of the said Dominions as part of the law of that Dominion otherwise than at the request and with the consent of that Dominion:
This formula was used when passing the Succession to the Throne Act 1937 which indicated the Canadian parliament’s assent to the new line of succession. First, the request-and-consent procedure mentioned in the second paragraph was provided by Order-in-Council, then later parliament passed the act giving assent (the first paragraph) to the change in the line of succession.
Arguments against the government
On the first point, it was noted that the King had to add to the Instrument of Abdication the words “and the British Dominions beyond the Seas” implying it was not enough for him to abdicate as King of the United Kingdom. It raises the question of whether King Edward VIII was still King of Canada between his abdication in the UK and the making of the Canadian Order-in-Council consenting to the change.
If it was then the assent procedure is a formality and the government is correct in saying that our monarchs are the same. If not, then the two are not automatically linked and the government’s argument is in much more murky territory.
Also the Succession to the Throne Act 1937 included in its schedule the relevant UK acts, potentially bringing the law of succession into Canadian law by the use of the assenting procedure. It could be argued that many Canadian courts at all levels have concluded that laws from before Confederation, or indeed Canada itself, apply in Canada subject to amendment by the local legislatures.
Also, O’Donohue v Canada (2003) stated that the relevant UK Acts were part of the constitution of Canada.
As to the third, although the preamble is invoked to allow the request-and-consent procedure, the Canada Act 1982 (UK) included a provision that 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, implicitly repealing the assenting provision of the Statute of Westminster in UK law as it applies to Canada. In Canadian law, the Constitution Act 1982 repealed the assenting provision directly from Canadian law and explicitly forebode subsequent UK law from extending to Canada.
However, it is possible by reference for Canadian law to import foreign law into Canada’s statute books, and it is not clear that this would be in contradiction of the provision in the Constitution Act 1982.
It is very difficult to see how the assenting procedure has any effect in Canada.
The Canadian Royal Heritage Trust approach
The CRHT argument contains three key points:
First: that the law of succession is part of the Constitution. The evidence for this is provided above as the judgment in O’Donohue v Canada (2003) in which it was determined that the Royal Marriages Act 1772, the Act of Settlement and the Common Law are part of the constitution of Canada.
Second: that the amending formula in section 41(a) – provincial and federal unanimity – may apply to the law of succession – they were equivocal about this in the committee. The argument hinges on whether the proposed changes are “in relation … to the office of the Queen” to quote the Constitution Act 1982. They argue that the broad interpretation implied by those words means that it is possible that the unanimity provision applies and thus resolutions of the House and Senate and each province must be passed before a proclamation can be made by the Queen changing the constitution.
There are those that argue the office of the Queen automatically implies the succession to the Crown too because the Crown is a corporation sole.
Third: in the event that section 41(a) must be invoked to amend the constitution, a proclamation must be issued by the Queen personally rather than by the Governor General in Her name. They argue it would be inappropriate for a proclamation affecting the office of the Queen to be proclaimed by a representative of the Queen and that if the constitution does not currently allow that, it should be amended so that it is allowed.
Arguments against the CHRT
With regard to the first point, Andrew Heard says that this is only one provincial court and that he believes the court misstated several aspects of this.
On the second point, Senator Joyal argued that a statement of Jake Epp, a minister at the time, meant the intent of the provision in the Constitution Act 1982 did not apply to these changes and was merely to cover:
the status of the Crown in Canada, the powers of the Crown in Canada and the rights of the Crown in Canada
Courts have also ruled that statutes such as the Bills of Rights and the Act of Settlement are part of Canada’s constitution subject to the amendments of Canada’s legislative assemblies though as they are not part of the schedule to the Constitution Act it is possible they can be amended without invoking an amendment formula.
After that, I’m definitely coming down on the side of Toffoli and Benoit; more legislation (whether by amending this bill or a whole new bill) is required to enact the changes.
On a lighter note, the committee was light-hearted, friendly and non-partisan. That’s genuinely lovely.
Time limits. God the time limits. You could hear Garry Toffoli rushing himself as he spoke, and Senator Fraser again was hurrying him to get the answer out (needlessly as it turned out). Are such strict time limits necessary? It can’t be good for Senators’ understanding of the issues to have to cut off questioning when members have more questions.
Also, I can’t help but think the (lengthy) preambles aren’t always necessary. If the committee distributed the witnesses’ submissions before their appearance before the committee, we would get the entirety of their preamble and leave more time for questioning. Of course, this is only a big issue because of time limits.
Tomorrow the Justice Minister (Rob Nicholson) and some of his officials are before the committee, then they move on to clause-by-clause consideration. I’ll be watching all of it, of course.
EDIT 21/03/13: The government’s response and clause-by-clause
Well, Minister Nicholson said nothing particularly new. There was a rash of soft-ball questions, though. Also, the assumption from the chair was that the bill would not be amended (he said that they wanted to get this sent for third reading in the Senate, which only happens when the committee doesn’t amend a bill). Perhaps unsurprisingly it was not amended, although Senator Fraser reserved the right to come back with amendments at third reading.