Editing Monarchy of Canada (section)

====Legal aspects of succession====
[[File:Act of Settlement 3323.jpg|thumb|A copy of the ''Act of Settlement, 1701'']]

The relationship between the Commonwealth realms is such that any change to the rules of succession to their respective crowns requires the unanimous consent of all the realms. Succession is governed by statutes, such as the ''[[Bill of Rights 1689|Bill of Rights, 1689]]'', the ''[[Act of Settlement, 1701]]'', and the ''[[Acts of Union, 1707]]''.
[[File:KingPrince1924.jpg|thumb|Prime Minister of Canada [[William Lyon Mackenzie King|Mackenzie King]] (left) and [[Edward VIII]] (right; when Prince of Wales) in [[Ottawa]], 1924. In 1936, [[Abdication of Edward VIII|Edward abdicated the Canadian throne]] and he and any of his descendants were removed from the line of succession by Order-in-Council PC 3144 and the ''[[Succession to the Throne Act, 1937]]''.]]

[[Edward VIII abdication crisis|King Edward VIII abdicated]] in 1936 and any possible future descendants of his were excluded from the line of succession.<ref>{{Citation |url=http://www.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?ls=c53&Parl=41&Ses=1&source=library_prb&Language=E#a9 |author=Parliament of Canada |title=Legislative Summary of Bill C-53: Succession to the Throne Act, 2013 |publisher=Queen's Printer for Canada |archive-url=https://web.archive.org/web/20151125110823/http://www.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?ls=c53&Parl=41&Ses=1&source=library_prb&Language=E#a9 |archive-date=25 November 2015 |url-status=dead}}</ref> The [[Government of the United Kingdom|British government]] at the time, wishing for speed so as to avoid embarrassing debate in Dominion parliaments, suggested that the governments of the Dominions of the British Commonwealth—then Australia, New Zealand, the [[Irish Free State]], the [[Union of South Africa]], and Canada—regard whoever was monarch of the UK to automatically be monarch of their respective Dominion. As with the other Dominion governments, the Canadian Cabinet, headed by Prime Minister [[William Lyon Mackenzie King]], refused to accept the idea and stressed that the laws of succession were part of Canadian law and, as the Statute of Westminster 1931 disallowed the UK from legislating for Canada, including in relation to succession,<ref>{{Harvnb|MacLeod|2015|p=37}}</ref> altering them required Canada's request and consent to the British legislation (''[[His Majesty's Declaration of Abdication Act 1936|His Majesty's Declaration of Abdication Act, 1936]]'') becoming part of Canadian law.<ref name=Twomeyvid>{{Cite AV media |people=[[Anne Twomey (academic)|Anne Twomey]] |title=Professor Anne Twomey – Succession to the Crown: foiled by Canada? |medium=Digital video |publisher=University College London |location=London |date=18 September 2014 |url=http://vimeo.com/108335929 |access-date=1 August 2022 |archive-date=8 January 2021 |archive-url=https://web.archive.org/web/20210108124158/https://vimeo.com/108335929 |url-status=live}}</ref> Sir [[Maurice Gwyer]], [[Office of the Parliamentary Counsel (United Kingdom)|first parliamentary counsel]] in the UK, reflected this position, stating the ''Act of Settlement'' was a part of the law in each Dominion.<ref name=Twomeyvid/> Thus, Order-in-Council P.C. 3144<ref>{{Citation |url=https://jameswjbowden.files.wordpress.com/2013/06/pc-1936-3144.pdf |author=Edward VIII |title=Order-in-Council regarding Canadian Request and Consent for Enactment of United Kingdom Legislation altering Succession (1936) |publisher=James Bowden |access-date=26 November 2015 |archive-date=4 March 2016 |archive-url=https://web.archive.org/web/20160304135103/https://jameswjbowden.files.wordpress.com/2013/06/pc-1936-3144.pdf |url-status=live}}</ref> was issued, expressing the Cabinet's request and consent for ''His Majesty's Declaration of Abdication Act, 1936'', to become part of the laws of Canada and the ''[[Succession to the Throne Act, 1937]]'', gave parliamentary ratification to that action, together bringing the ''Act of Settlement'' and ''[[Royal Marriages Act 1772|Royal Marriages Act, 1772]]'', into Canadian law.<ref>{{Citation |url=http://crht.ca/wp-content/uploads/2013/02/CRHT-Background-Paper-on-Canadas-Law-of-Succession.pdf |last=Toffoli |first=Gary |title=Is There a Canadian Law of Succession and Is There a Canadian Process of Amendment? |date=9 February 2013 |pages=3–4 |publisher=Canadian Royal Heritage Trust |access-date=12 February 2013 |archive-url=https://web.archive.org/web/20131127005340/http://crht.ca/wp-content/uploads/2013/02/CRHT-Background-Paper-on-Canadas-Law-of-Succession.pdf |archive-date=27 November 2013 |url-status=dead}}</ref><ref>{{Cite book |first=Robert |last=Macgregor Dawson |author-link=Robert MacGregor Dawson |title=The Government of Canada |url=https://archive.org/details/governmentofcana0000macg |url-access=registration |edition=5th |location=Toronto |publisher=University of Toronto Press |date=1970 |page=[https://archive.org/details/governmentofcana0000macg/page/63 63] |isbn=978-0-8020-2046-8}}</ref> The latter was deemed by the Cabinet in 1947 to be part of Canadian law.{{#tag:ref|Gary Toffoli of the Canadian Royal Heritage Trust stated that the approval given by the Queen in her Canadian Council in 1981 to the marriage of [[Charles, Prince of Wales]], and [[Diana, Princess of Wales|Lady Diana Spencer]]<ref name=Boyce81/> separately to the same approval given by the Queen in her British Council illustrated the existence of the ''Royal Marriages Act'' in Canadian law.<ref>{{Cite AV media |people=Various |title=In Committee from the Senate: Legal and Constitutional Affairs - March 20, 2013 |medium=Digital video |publisher=CPAC |location=Ottawa |date=20 March 2013 |url=http://www.cpac.ca/en/digital-archives/?search=succession%20throne&orderby=relevance |url-status=dead |archive-url=https://web.archive.org/web/20150413142423/http://www.cpac.ca/en/digital-archives/?search=succession%20throne&orderby=relevance |archive-date=13 April 2015}}</ref> In 1947, the King in his Canadian Council gave the same consent to the marriage of Princess Elizabeth to Philip Mountbatten, again separate from the approval he gave in his British Council.<ref name=Boyce81/>|group=n |name=Marriages}}<ref name=Boyce81>{{Harvnb|Boyce|2008|p=81}}</ref> The [[Department of Foreign Affairs, Trade and Development|Department of External Affairs]] included all succession-related laws in its list of acts within Canadian law.

The [[Supreme Court of Canada]] declared unanimously in the 1981 ''[[Patriation Reference]]'' that the ''Bill of Rights, 1689'', is "undoubtedly in force as part of the law of Canada".<ref>{{Cite web |url=http://senparlvu.parl.gc.ca/Guide.aspx?viewmode=4&categoryid=-1&eventid=8763&Language=E |last=Senate of Canada |title=LCJC Meeting No. 74 |date=20 March 2013 |publisher=Queen's Printer for Canada |access-date=24 March 2013 |url-status=dead |archive-url=https://web.archive.org/web/20130614215631/http://senparlvu.parl.gc.ca/Guide.aspx?viewmode=4&categoryid=-1&eventid=8763&Language=E |archive-date=14 June 2013}}</ref><ref>{{Citation |author=Supreme Court of Canada |title=Re: Resolution to amend the Constitution, [1981] 1 SCR 753 |date=28 September 1981 |page=785 |publisher=Queen's Printer for Canada}}</ref> Furthermore, in ''[[O'Donohue v. Canada]]'' (2003) the [[Ontario Superior Court of Justice]] found that the ''Act of Settlement, 1701'', is "part of the laws of Canada" and the rules of succession are "by necessity incorporated into the Constitution of Canada".<ref>{{Cite court |litigants=O'Donohue v. Her Majesty The Queen in Right of Canada and Her Majesty The Queen in Right of Ontario |opinion=41404 |pinpoint=paragraphs 3 and 24 |court=Ontario Superior Court of Justice |date=26 June 2003 |url=http://canlii.ca/en/on/onsc/doc/2003/2003canlii41404/2003canlii41404.html |reporter=CanLII |vol=2003}}</ref> Another ruling of the Ontario Superior Court, in 2014, echoed the 2003 case, stating that the ''Act of Settlement'' "is an imperial statute which ultimately became part of the law of Canada."<ref name=Court>{{Cite court |litigants=Bryan Teskey v. Attorney General of Canada |opinion=Hackland R.S.J. |court=Ontario Superior Court of Justice |date=9 August 2013 |url=http://canlii.ca/en/on/onsc/doc/2013/2013onsc5046/2013onsc5046.pdf}}</ref> Upon dismissing appeal of that case, the Court of Appeal of Ontario stated "[t]he rules of succession are a part of the fabric of the constitution of Canada and incorporated into it".<ref>{{Cite court |litigants=Teskey v. Canada (Attorney General) |vol=C57588 |opinion=Blair, R.A.; Pepall, S.E.; Hourigan, C.W. |pinpoint=S.6 |court=Court of Appeal for Ontario |date=28 August 2014 |url=http://www.canlii.org/en/on/onca/doc/2014/2014onca612/2014onca612.html |archive-date=7 April 2015 |archive-url=https://archive.today/20150407012150/http://www.canlii.org/en/on/onca/doc/2014/2014onca612/2014onca612.html |url-status=live}}</ref>

In a meeting of the Special Joint Committee on the Constitution during the process of [[Patriation|patriating]] the Canadian constitution in 1981, [[John Munro (Canadian politician)|John Munro]] asked then-Minister of Justice [[Jean Chrétien]] about the "selective omissions" of the ''Succession to the Throne Act, 1937'', the ''[[Demise of the Crown Act 1901|Demise of the Crown Act, 1901]]'', the ''Seals Act'', the ''Governor General's Act'', and the ''Royal Style and Titles Act, 1953'', from the schedule to the ''[[Constitution Act, 1982]]''. In response, Chrétien asserted that the schedule to the ''Constitution Act, 1982'', was not exhaustive, outlining that section 52(2) of the ''Constitution Act, 1982'', says "[t]he Constitution of Canada includes [...] the acts and orders referred to the schedule" and "[w]hen you use the word 'includes' [...] it means that if ever there is another thing related to the Canadian constitution as part of it, should have been there, or might have been there, it is covered. So we do not have to renumerate [sic] the ones that you are mentioning."<ref name=committee>{{Citation |author=((Parliament of Canada; 32nd Parliament (1st Session))) |title=Minutes of the Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada |date=5 February 1981 |volume=54 |edition=106 |publisher=Queen's Printer for Canada}}</ref> In the same meeting, Deputy Attorney General [[Barry Strayer]] stated: "Clause 52(2) is not an exhaustive definition of the Constitution of Canada so that while we have certain things listed in the schedule which are clearly part of the constitution, that does not mean that there are not other things which are part of the constitution [...] [The schedule] is not an exhaustive list."<ref name=committee/>
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Leslie Zines claimed in the 1991 publication, ''Constitutional Change in the Commonwealth'', that, though the succession to Canada's throne was outlined by common law and the ''Act of Settlement, 1701'', these were not part of the Canadian constitution, which "does not contain rules for succession to the throne."<ref>{{Citation |url=https://books.google.com/books?id=sWzgzAd6wtAC |last=Zines |first=Leslie |title=Constitutional Change in the Commonwealth |page=29 |date=1991 |publisher=Cambridge University Press |location=Cambridge |isbn=978-0-5214-0039-8}}</ref> Richard Toporoski, writing three years later for the [[Monarchist League of Canada]], stated, "there is no existing provision in our law, other than the ''Act of Settlement, 1701'', that provides that the king or queen of Canada shall be the same person as the king or queen of the United Kingdom. If the British law were to be changed and we did not change our law [...] the person provided for in the new law would become king or queen in at least some realms of the Commonwealth; Canada would continue on with the person who would have become monarch under the previous law."<ref name=Toporoski1998>{{Cite journal |last=Toporoski |first=Richard |title=The Invisible Crown |journal=Monarchy Canada |publisher=Monarchist League of Canada |location=Toronto |date=1998 |url=http://www.monarchist.ca/mc/invisib2.htm |access-date=15 March 2010 |archive-url=https://web.archive.org/web/20080224145943/http://www.monarchist.ca/mc/invisib2.htm |archive-date=24 February 2008}}</ref>

Canada, with the other Commonwealth realms, committed to the 2011 [[Perth Agreement]], which proposed changes to the rules governing succession to remove male preference and removal of disqualification arising from marriage to a Roman Catholic. As a result, the Canadian Parliament passed the ''[[Succession to the Throne Act, 2013]]'', which gave the country's assent to the ''[[Succession to the Crown Act 2013|Succession to the Crown Bill]]'', at that time proceeding in the Parliament of the United Kingdom. In dismissing a challenge to the law on the basis that a change to the succession in Canada would require unanimous consent of all provinces under section 41(a) of the ''Constitution Act, 1982'', Quebec Superior Court Justice Claude Bouchard ruled that Canada "did not have to change its laws nor its constitution for the British royal succession rules to be amended and effective" and [[Constitutional convention (political custom)|constitutional convention]] committed Canada to having a line of succession symmetrical to those of other Commonwealth realms.<ref>{{Cite news |title=Deux profs de l'Université Laval déboutés dans la cause du "bébé royal" |url=http://www.lapresse.ca/le-soleil/actualites/justice-et-faits-divers/201602/16/01-4951299-deux-profs-de-luniversite-laval-deboutes-dans-la-cause-du-bebe-royal.php |access-date=16 February 2016 |newspaper=Le Soleil |date=16 February 2016 |archive-url=https://web.archive.org/web/20160217095139/http://www.lapresse.ca/le-soleil/actualites/justice-et-faits-divers/201602/16/01-4951299-deux-profs-de-luniversite-laval-deboutes-dans-la-cause-du-bebe-royal.php |archive-date=17 February 2016 |url-status=dead}}</ref><ref name=quebecappeal>{{Cite news |title=La cause du "bébé royal" en appel |url=http://www.lapresse.ca/le-soleil/actualites/societe/201603/14/01-4960730-la-cause-du-bebe-royal-en-appel.php |last=Sèguin |first=Rhèal |date=15 March 2016 |newspaper=Le Soleil |access-date=15 March 2016 |archive-url=https://web.archive.org/web/20160316042540/http://www.lapresse.ca/le-soleil/actualites/societe/201603/14/01-4960730-la-cause-du-bebe-royal-en-appel.php |archive-date=16 March 2016 |url-status=dead}}</ref> The ruling was upheld by the [[Quebec Court of Appeal]].<ref>{{Cite news| last1=Marin| first1=Stephanie |title=Quebec Court of Appeal hearing case about who can inherit Canada's Crown |url=https://montreal.ctvnews.ca/quebec-court-of-appeal-hearing-case-about-who-can-inherit-canada-s-crown-1.3809400 |access-date=26 April 2018 |publisher=CTV News |agency=Canadian Press |date=19 February 2018 |archive-date=27 April 2018 |archive-url=https://web.archive.org/web/20180427183851/https://montreal.ctvnews.ca/quebec-court-of-appeal-hearing-case-about-who-can-inherit-canada-s-crown-1.3809400 |url-status=live}}</ref> The Supreme Court of Canada declined to hear an appeal in April 2020.<ref name=scc>{{Cite news| last1=Lagassé| first1=Philippe |title=Lagassé: Who cares about the monarchy? Certainly not the Supreme Court of Canada |url=https://ottawacitizen.com/opinion/lagasse-who-cares-about-the-monarchy-certainly-not-the-supreme-court-of-canada/wcm/3e444e9f-837e-4b24-9435-e4cf5e8502b9 |access-date=28 April 2020 |newspaper=Ottawa Citizen |date=26 April 2020 |archive-date=16 August 2021 |archive-url=https://web.archive.org/web/20210816081101/https://ottawacitizen.com/opinion/lagasse-who-cares-about-the-monarchy-certainly-not-the-supreme-court-of-canada/wcm/3e444e9f-837e-4b24-9435-e4cf5e8502b9 |url-status=live}}</ref>

Constitutional scholar Philippe Lagassé argues that, in light of the ''Succession to the Throne Act, 2013'', and court rulings upholding that law, section 41(a) of the ''Constitution Act, 1982'', which requires a constitutional amendment passed with the unanimous consent of the provinces, applies only to the "office of the Queen", but not who holds that office, and that therefore "ending the principle of symmetry with the United Kingdom can be done with the general amending procedure, or even by Parliament alone under section 44 of the ''Constitution Act, 1982''."<ref name=scc/><ref name=lagasse>{{Cite journal| last1=Lagassé| first1=Philippe |title=Monarchy's rights, privileges, and symbols in Canada can be changed |journal=Policy Options |date=21 January 2010 |url=https://policyoptions.irpp.org/magazines/January-2020/monarchys-rights-privileges-and-symbols-in-canada-can-be-changed  |access-date=28 April 2020 |archive-date=15 August 2021 |archive-url=https://web.archive.org/web/20210815054631/https://policyoptions.irpp.org/magazines/january-2020/monarchys-rights-privileges-and-symbols-in-canada-can-be-changed  |url-status=live}}</ref>

[[Ted McWhinney]], another constitutional scholar, argued that a then-future government of Canada could begin a process of phasing out the monarchy after the [[death of Elizabeth II]] "quietly and without fanfare by simply failing legally to proclaim any successor to the Queen in relation to Canada". This would, he claimed, be a way of bypassing the need for a constitutional amendment that would require unanimous consent by the federal Parliament and all the provincial legislatures.<ref>Yaffe, Barbara; "Ditching royals is easy, expert says 
When Queen ends her reign, Canada can just fail to proclaim Charles as the king"; ''The Vancouver Sun''; 17 February 2005</ref> However, Ian Holloway, Dean of Law at the [[University of Western Ontario]], criticized McWhinney's proposal for its ignorance of provincial input and opined that its implementation "would be contrary to the plain purpose of those who framed our system of government."<ref>{{Citation |last=Holloway |first=Ian |date=2005 |editor-last=Ed. Staff |editor-link=Monarchist League of Canada |title=Liberal Stalking Horse for Stealth Ending of Monarchy? |periodical=Canadian Monarchist News |volume=Spring 2005 |issue=23 |page=2 |location=Toronto |publisher=Monarchist League of Canada |url=http://www.monarchist.ca/cmn/2005/Spring_2005_CMN.pdf |access-date=18 May 2009 |url-status=dead |archive-url=https://web.archive.org/web/20090226172807/http://www.monarchist.ca/cmn/2005/Spring_2005_CMN.pdf |archive-date=26 February 2009}}</ref>

Certain aspects of the succession rules have been challenged in the courts. For example, under the provisions of the ''Bill of Rights, 1689'', and the ''Act of Settlement, 1701'', Catholics are barred from succeeding to the throne; this prohibition has been upheld twice by Canadian courts, once in [[O'Donohue v Canada|2003]] and again in 2014.{{Refn|<ref name=ctvteskey>{{Cite news |title=Royal succession law not subject to ''Charter'' challenge: court |url=http://kitchener.ctvnews.ca/royal-succession-law-not-subject-to-charter-challenge-court-1.1977651 |date=26 August 2014 |publisher=CTV News |access-date=29 August 2014 |archive-date=2 November 2021 |archive-url=https://web.archive.org/web/20211102185257/https://kitchener.ctvnews.ca/royal-succession-law-not-subject-to-charter-challenge-court-1.1977651 |url-status=live}}</ref><ref>{{Cite news |url=https://www.thestar.com/news/gta/2013/09/04/markham_law_graduate_fighting_catholic_ban_on_royal_succession.html |last=Gallant |first=Jacques |title=Markham law graduate fighting Catholic ban on royal succession |date=4 September 2013 |newspaper=Toronto Star |access-date=4 September 2013 |archive-date=14 August 2021 |archive-url=https://web.archive.org/web/20210814081808/https://www.thestar.com/news/gta/2013/09/04/markham_law_graduate_fighting_catholic_ban_on_royal_succession.html |url-status=live}}</ref><ref>{{Cite news |url=https://ottawacitizen.com/news/king+uOttawa+grad+challenging+succession+rules/8829959/story.html |last=Yogaretnam |first=Shaamini |title=The boy who won't be king: uOttawa law grad challenging succession rules |date=24 August 2013 |newspaper=Ottawa Citizen |access-date=4 September 2013 |url-status=dead |archive-url=https://web.archive.org/web/20130827112731/http://www.ottawacitizen.com/news/king+uOttawa+grad+challenging+succession+rules/8829959/story.html |archive-date=27 August 2013}}</ref><ref>{{Cite court |litigants=Teskey v. Canada (Attorney General) |opinion=Blair, Pepall, and Hourigan |court=Court of Appeal for Ontario |date=26 August 2014 |url=http://www.canlii.org/en/on/onca/doc/2014/2014onca612/2014onca612.html |archive-date=7 April 2015 |archive-url=https://archive.today/20150407012150/http://www.canlii.org/en/on/onca/doc/2014/2014onca612/2014onca612.html |url-status=live}}</ref>}} Legal scholar Christopher Cornell of the [[Dedman School of Law|SMU Dedman School of Law]] concluded "that the prohibition on the Canadian Monarch being Catholic, while discriminatory, is perfectly-if not fundamentally-constitutional" and that if the prohibition is "to be changed or removed it will have to be accomplished politically and legislatively through another multilateral agreement similar to the Perth Agreement rather than judicially through the courts."<ref>{{Cite journal |last1=Cornell |first1=Christopher |title=Succession to the Throne and the Canadian Charter of Rights and Freedoms |journal=Law and Business Review of the Americas |date=2015 |volume=21 |issue=2 |pages=205 |url=https://scholar.smu.edu/lbra/vol21/iss2/6 |access-date=March 17, 2024 |archive-date=18 March 2024 |archive-url=https://web.archive.org/web/20240318011546/https://scholar.smu.edu/lbra/vol21/iss2/6 |url-status=live}}</ref>