The case against the constitutionality of Canada’s Succession to the Throne Act, 2013 is fairly straightforward. Three arguments have been levelled against it.

1) In December 1936, the Canadian Cabinet requested and consented that the British Parliament extend His Majesty’s Declaration of Abdication Act, 1936 to Canada using section 4 of the Statute of Westminster. Royal succession has been part of Canadian law since then. After 1982, section 4 of the Statute of Westminster was no longer in force, which means that the British Parliament can no longer legislate for Canada in matters of royal succession. Hence, the Succession to the Throne Act, 2013, which merely expresses assent to a British statute, has no effect in Canadian law, and therefore cannot change rules of royal succession that were incorporated into Canadian law in 1936.

2) The Queen of Canada is a corporation sole. As a corporation sole, the office of the Queen includes successors by definition. The Constitution Act, 1982 states that matters affecting the office of the Queen require unanimous consent of Canada’s legislatures to amend. Since succession deals with the office of the Queen by definition, changes to the rules of royal succession require a unanimous constitutional amendment.

3) Australia and New Zealand are not using the preamble to the Statute of Westminster to change the rules of succession for the Queen of Australia or the Queen of New Zealand. Instead they are passing their own legislation to alter their own rules of succession. This belies the notion that the Statute’s preamble is sufficient to alter the succession for Canada or that there is a convention found in the preamble that allows the former self-governing colonies to assent to British legislation to accept changes to the royal succession. Australia and New Zealand further highlight that the rules of succession are not a matter of British law alone.

Now, in spite of all this, the political ramifications of declaring the Succession to the Throne Act, 2013 unconstitutional would be inconvenient. It would mean that the United Kingdom might not be willing to declare their changes to the succession effective until Canada sorts out the issue. Alternatively, it might mean that Canada’s line of succession could be out of sync with the United Kingdom were a series of tragic, but not impossible events, to occur. And worst of all from a Canadian point of view, it would force the federal government and provinces to amend the constitution to avoid these possibilities.

So, politically speaking, it is highly likely that the courts are going to figure out a way to uphold the Succession to the Throne Act, 2013. What will be especially interesting is to see how they’ll defend the law. In particular, I look forward reading how the courts will resolve the tensions found in the case law that supports the government’s position.

Let’s take a look at these tensions.

Here’s the justice minister’s position on matters of royal succession and Canada’s approach to the succession act:

It is a fundamental rule of our constitutional law that the Queen of Canada is the Queen of the United Kingdom, or to put it another way, whoever, at any given period, is the Queen or King of the United Kingdom is at the same time the Queen or King of Canada. That rule is embodied in the preamble to the Constitution Act of 1867 and in the provisions of that act. The preamble states that Canada will be “united into One Dominion under the Crown of the United Kingdom, with a Constitution similar in Principle to that of the United Kingdom.”

The British bill is amending the United Kingdom laws that define who may become the sovereign of the United Kingdom in the future. It is our Canadian Constitution that provides that the sovereign of the United Kingdom is the sovereign of Canada.

It is important to note, Mr. Chair, that Bill C-53 does not amend the Constitution of Canada in relation to the office of the Queen. The constitutional status of the Queen as the sovereign of Canada and her powers, rights and prerogatives under the Constitution are not affected in any way by this bill.

This aligns with what the Ontario Superior Court of Justice argued in O’Donohue (2003):

This portion of the preamble [Constitution Act, 1867] confirms not only that Canada is a constitutional monarchy, but also that Canada is united under the Crown of the United Kingdom of Great Britain. (para 21)

In the result, these rules are by necessity incorporated into the Constitution of Canada. (para 24)

Unilateral changes by Canada to the rules of succession, whether imposed by the court or otherwise, would be contrary to the commitment given in the Statute of Westminster, would break symmetry and breach the principle of union under the British Crown set out in the preamble to the Constitution Act, 1867. Such changes would, for all intents and purposes, bring about a fundamental change in the office of the Queen without securing the authorizations required pursuant to s. 41 of the Constitution Act, 1982. (para 33)

By virtue of our constitutional structure whereby Canada is united under the Crown of Great Britain, the same rules of succession must apply for the selection of the King or Queen of Canada and the King or Queen of Great Britain. (para 36)

It also aligns with what the Ontario Superior Court of Justice found last year in Tesky (2013):

The prohibition against Catholics succeeding to the throne has been part of our law since the Act of Settlement, 1701. This Act itself is an imperial statute which ultimately became part of the law of Canada. (para 8)

As noted, I am in respectful agreement with this court’s decision in O’Donohue, affirmed by the Court of Appeal which held that the rules of succession and the requirement that they be the same as those of Great Britain, are necessary to the proper functioning of our constitutional monarchy and, therefore, the rules are not subject to Charter scrutiny and are not justiciable in the sense that they are beyond the review jurisdiction of this court. (para 15)

So far, so good. According to the federal government and Ontario’s Superior Court of Justice, Canada is under the Crown of Great Britain (despite the Court of Appeal for England ruling otherwise in 1981, but I digress), so the preamble to the Constitution Act, 1867 means that the United Kingdom determines the rules of royal succession for Canada.

Things got a bit stranger this week, though, when the Ontario Court of Appeal ruled on Tesky:

The rules of succession are a part of the fabric of the constitution of Canada and incorporated into it and therefore cannot be trumped or amended by the Charter… (para 6)

Now, this line could mean that the court agrees that the decision to follow the British rules of succession is part of Canada’s constitutional fabric. But it could also mean that the rules of royal succession are part of the Constitution of Canada. If that’s the case, then the notion that changing those rules doesn’t affect the office of the Queen is harder to defend.

However, another Ontario Court of Appeal ruling arguably makes things even stranger. In the recent citizenship oath case, the court found that:

The Constitution Act, 1982 completed the “Canadianization” of the Crown. As the Supreme Court has explained, “the proclamation of the Constitution Act, 1982 removed the last vestige of British authority over the Canadian Constitution”: Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 46. (para 47)

However, as Canada developed as an independent federalist state, the conception of the Queen (commonly referred to as the Crown) evolved. Unlike the unitary role of the Crown at the height of the British Empire, its role in Canada is divided into three distinct roles. First, the Queen of Canada plays a legislative role in assenting to refusing assent to, or reserving bills of the provincial legislature or Parliament – a role that is performed through the Governor General and the Lieutenant Governors. Second, the Queen of Canada is the head of executive authority pursuant to sections 9 and 12 of the Constitution Act, 1867. Third, the Queen of Canada is the personification of the State, i.e., with respect to Crown prerogatives and privileges: Laskin, at pp. 119-20.

Although the Queen is a person, in swearing allegiance to the Queen of Canada, the would-be citizen is swearing allegiance to a symbol of our form of government in Canada. This fact is reinforced by the oath’s reference to “the Queen of Canada,” instead of “the Queen.” It is not an oath to a foreign sovereign.

So, the Crown was completely Canadianized in 1982, and there is no vestige of British authority over the Canadian Constitution.

But haven’t the courts told us that Canada is under the Crown of Great Britain? And didn’t the courts also tell us that the rules of succession are part of Canada’s constitutional fabric but set by the British Parliament?

And how can the Queen of Canada be the Queen of the United Kingdom, as the justice minister claims, yet not be a foreign sovereign and the Queen of the United Kingdom, as the Ontario Court of Appeal found?

These are awkward inconsistencies, to say the least.

To spell them out a bit more clearly:

The Act of Settlement is part of Canadian law, and the rules of royal succession are part of the Constitution of Canada, but the Act of Settlement and rules of royal succession are determined by the British Parliament —except that the British Parliament no longer has any authority over Canada.

The Crown was completely Canadianized in 1982, but Canada remains under the Crown of the United Kingdom of Great Britain and Northern Ireland.

The Queen of Canada is the Crown in Canada, and the Crown of Canada was Canadianized in 1982, but Canada remains under the Crown of the United Kingdom, and yet the Queen of Canada is not the Queen of the United Kingdom.

The Constitution of Canada holds that the Queen of Canada is the Queen of the United Kingdom. But the Queen of Canada is not the Queen of the United Kingdom in the citizenship oath.

It will be interesting to see how the courts, and hopefully the Supreme Court, untangle this mess.