Court action that questions statute allowing eldest daughter to become monarch of UK – and head of state in Canada – has broader ramifications, say plaintiffs

A law enacted in Canada to ensure the Duke and Duchess of Cambridge’s first-born child could become head of state regardless of gender was unconstitutional and smacked of colonialism, a Canadian court will hear.



Almost two years after the birth of Prince George, two law professors from Quebec’s Laval university are to challenge a law enacted to ensure that, had the duchess given birth to daughter, the child could become Queen.

The case, which starts on Monday in a court in Quebec, will examine the constitutional history of Canada and its legal relationship with the UK.



Geneviève Motard and Patrick Taillon, both professors of constitutional law, will argue that, although the British monarch is Canada’s head of state, the UK is a foreign country, and the Canadian parliament merely “assented” to the changes made by the British parliament and did not properly amend Canadian law.



“The position seems to be that, still, British law applies automatically in Canada, which we consider to be a colonial position, and it’s a throwback to ancient times,” said André Binette, one of the legal team representing Motard and Taillon.



The case stems from 2011, when the Duke and Duchess of Cambridge were newly married and expected to start a family. The 15 member countries of the Commonwealth where the Queen is head of state hastily agreed to modernise succession laws. The changes allowed a first-born child, regardless of gender, to succeed to the throne and for a sovereign to marry a Catholic.



Those 15 countries then introduced laws to reflect the changes and, in 2013, the Canadian parliament adopted an act “assenting” to the alteration of the British royal succession. But, the professors will claim, it did so without consulting with the 10 provinces that make up Canada.



The plaintiffs are not arguing whether an older daughter should have precedence over her younger brother in the line of succession. “It’s not really about the content of the legal change. Of course, everybody agrees with gender equality,” Binette said.



Rather, the object of the case was to determine to what extent the federal parliament could amend the constitution without the participation of the provinces, he said.



Motard and Taillon, supported by the Quebec government, and Canadian Royal Heritage Trust, a monarchist organisation, contend that, because Canada is a sovereign state with its own constitution, its parliament must alter Canadian law to implement the royal succession reform.

They will argue there is a Canadian law regarding succession, which determines who can become Canada’s head of state. In 1931, the statute of Westminster gave legal recognition to an independent Canada, but the British parliament had retained, at Canada’s request, the power to alter royal succession law. In 1982, however, the Canada Act severed any residual jurisdiction that the British parliament had over Canadian law, including Canadian royal succession, the plaintiffs will claim.

“While Australia, New Zealand and the other Commonwealth members involved have made changes in their own laws in parallel to the British law, Canada has chosen simply to assent to the British law,” Binette said.



“We believe that the 1982 Canada Act has severed all remaining legal ties with the UK and that includes the monarchy.”



The hearing, before Justice Claude Bouchard, of the superior court of Quebec, is expected to last 10 days. If the case succeeds, it could take three years for Canada to obtain the consent of all 10 provinces to enable it to change its royal succession law.

“But now there is no urgency because Princess Catherine had a boy,” Binette said.