Is there perhaps a silent prayer sweeping stealthily across the ranks of Canada’s constitutional experts? “Please, Lord, let the duchess of Cambridge be delivered of a fine, healthy heir. And if you could see to it, let it be a boy. Or, if it’s a girl, make sure she only has younger sisters.”
When St. James’s Palace announced on Dec. 3 that the wife of HRH Prince William was great with child, the machinery of the Commonwealth was ready. The heads of government in the Queen’s various realms had, in October 2011, already agreed to a co-ordinated change in their statutes that will allow the Prince’s children to succeed in order of seniority, irrespective of sex. The necessary changes to British law, which affect acts as far back as 1351, are ready for parliamentary approval and scheduled to go through as early as possible in the new year, with the Canadian ones to follow. There is nary a whisper of dissent from any quarter.
But on Dec. 4, a couple of troublemakers—University of Ottawa professor Philippe Lagassé and graduate student James Bowden—took to the pages of the Ottawa Citizen to chirp a warning. Since 1931, Canada has had an independent throne that happens to be occupied by the same person who occupies the U.K.’s. This is a fine point on which all monarchists agree; indeed, they get positively snippy when someone refers to our “British” sovereign.
And it’s universally recognized that Canada must separately ratify any change to the succession of Canada’s throne. The U.K. no longer makes law for us. The Privy Council Office has announced specific plans to implement the change in federal Parliament, and the government has a promise of enthusiastic support from the New Democratic Opposition.
But the Constitution Act of 1982 says that any amendment to Canada’s Constitution “in relation to the office of the Queen” has to have the unanimous consent of the provincial legislatures as well as the Senate and the House of Commons. The natural meaning of the phrase “office of the Queen,” Bowden and Lagassé point out, would seem to include succession arrangements. (Their position has found support from the University of Sydney’s Anne Twomey, who argues that the same problem exists in Australia with regard to its states.) Certainly the old U.K. laws now being amended have always been considered part of the Canadian Constitution.
So do the provinces need to sign off on the trendy change in favour of gender equality? And could one province block it, either now or in the distant future?
The Privy Council Office’s view is “no.” PCO spokesman Raymond Rivet acknowledges that “there are a lot of opinions being put forward about that,” but says the official view is that “there are no constitutional implications” involved in the succession change. The Canadian legislation, says Rivet, merely “signals Parliament’s agreement” to the changes being made in the U.K.
As the Ottawa scholars note in the Citizen, there is pretty much just one piece of Canadian case law relevant to the issue: O’Donohue v. Canada, a 2003 case from Ontario’s Superior Court in which a Roman Catholic challenged the Act of Settlement of 1701 on the grounds that the exclusion of Catholics from the throne was discriminatory. Unfortunately, Justice Paul Rouleau did not exactly succeed in making the issue clearer. He confirmed that the royal succession rules are part of the Constitution: that’s a point explicitly against the view the PCO is now trying to carry off. He also noted that the preamble to the old British North America Act of 1867 guarantees that we will have the same monarch as Great Britain—a “symmetry” that is “axiomatic” to our Constitution.
Score one for the PCO. But at another point Rouleau appears to question the axiom; he suggests that if Canada had not ratified the 1936 abdication of Edward VIII—which it did—it might not have been in force here, raising the possibility that the Canada-U.K. personal union of thrones could be broken unless all the i’s are dotted and the t’s are crossed. After all, if the common identity of the sovereign is “axiomatic,” why was any action by Canada’s Parliament necessary when Edward quit?
The good news is that the current order of succession is all male (not counting the person at the top) through the life of 30-year-old Prince William. The oddball possibility of a vexatious provincial challenge to the succession arises if his wife has a baby girl first, followed at some point by a boy. Many subjects are probably hoping this will come about; there has been good luck with female monarchs since Mary I. But from the standpoint of the law, a boy would be . . . just . . . easier, okay?