Why Canada will stop the Commonwealth from changing the rules of Succession

“Amendment by unanimous consent

41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:

(a)   the office of the Queen, the Governor General and the Lieutenant Governor of a province;”

  • Constitution Act, 1982, Part V – PROCEDURE FOR AMENDING CONSTITUTION OF CANADA

“Canada supports updating royal succession rules so that a daughter of Prince William can take the throne one day, a spokesman for Prime Minister Stephen Harper says.”

  • Canada supports royal succession rule change, By Laura Payton, CBC News, Posted: Oct 13, 2011 12:31 PM ET

One could sit down and argue about the need of the monarchy. But I will not. For one thing is obvious, the Harper Government will not deal with the issue of the Rules of Succession for the Monarchy. This might seem like an extreme position to take. However, I assure you that the truth and the reasoning is simple: Mr. Harper does not want to have to amend the Canadian Constitution. In the early eighties, Mr. Harper was an aide to a Progressive Conservative Member of Parliament. Under the Mulroney years, he saw the hardship that can come with amending the constitution.

In dealing with other constitutional issues, including Senate Reform, Mr. Harper has chosen to side step the General Amending Procedure. So why would Mr. Harper take on the harder task of amending Canada’s head of state. Updating this part of the Constitution is a huge mind field and this Prime Minister is not brave enough to take it on.  However, to understand this let us look at the history.

In the 1930’s, Canada was a part of the self-governing polity of the English Empire. So updating of English Constitutional Law, at the time, had some effect on us. English Constitutional Law was being changed for a number of reasons. For example, to contend with the growing calls of the Dominions for more power, the Statute of Westminster was passed in 1931. It allowed for Dominions within the British Empire to largely administer themselves.

Then there was the case of Wallis Simpson. That simple love affair led to the Abdication of Edward VIII through the Abdication Act (i.e. His Majesty’s Declaration of Abdication Act 1936). Passed by the British Parliament, this act allowed the Throne to be passed to Prince Albert, Duke of York, who became King George VI. For me, the most interesting part of this story was the Canadian Reaction. Our Federal Government acted differently than every other Dominion in the Commonwealth. The Irish, for example, passed the Executive Authority (External Relations) Act 1936. Or put differently, the Irish changed their rules of succession. On the other hand, Australia, the Union of South Africa, and New Zealand gave their consent. Yet, Canada did something different.

In 1936, the Canadian Government gave consent to the actions of the British Parliament. They passed an Order-in-Council to authorize their consent. This was the law and was legal. However, in 1937, the Canadian Parliament passed the Succession to the Throne Act. This act ensured that Canadian Jurisprudence was in line with other jurisdictions.

Unlike other parts of Canadian Law, the Crown was defined in clear terms. No longer would Canada have to refer to English Constitutional Law, Precedence or Tradition; as the Canadian Parliament declared a Canadian line of succession. The problem for the Harper Government is that this law is now a part of the Canadian Constitution.

For, as far as I can tell, the Succession to the Throne Act is still in force. Nothing in the SCHEDULE to the CONSTITUTION ACT, 1982 mentions it; nor do any previous constitutional amendment mentions it either.  If this is the case, then a whole set of problems ensue. Or put differently, when the Constitution Act, 1982 came into force; it crystalized the existing powers of the crown. The problem is one of those powers is the line of succession as described by the Succession to the Throne Act, 1937. For some proof, just look at the original British North America Act. Section two of the act started that “the provisions of this Act referring to Her Majesty the Queen extend also to the Heirs and Successors of Her Majesty, King and Queens of the United Kingdom of Great Britain and Ireland.” While that portion of the act was repealed in 1893, the sentiment still remains as a part of Canadian Law. For, we still keep track of the order of succession. So when Prince William, Duke of Cambridge, came to Canada, we understood he is second in line to the Crown, as per the Act of Settlement of 1701 (UK) and the Succession to the Throne Act, 1937 (Canada).

Consequently, a change to the order of succession is a change to the office. And by section 41 (a) of the Constitution Act, 1982, any change to the “office of the Queen, the Governor-General and the Lieutenant-Governor of a province” requires the consent of the federal Parliament and all provincial legislatures.

Given that Stephen Harper has not been willing to go to various provinces to seek consent to change the Senate, one could assume he will not go to the provinces over changes to the succession of the crown. However, in the unlikely case that he does, one could not see the Right Honourable Stephen Harper getting unanimity and there are two reasons for this. Firstly, it is hard to see how ten provinces could come together on any issue right now. Alberta and BC, for example, are required to hold referendums on any constitutional changes. Without some form of Senate reform, those two western provinces are not likely to agree to any changes to the Crown. The National Assembly, in Quebec, is not likely to approve any changes to the crown without some quid pro quo; while Ontario has a minority government. This does not bode well for the changes that need to be made.

The second reason for my conclusion comes from Stephen Harper himself. His government has not been known for its “conciliatory” nature. Stephen Harper is brash and has offended a number of Canadians. BC, Newfoundland and Prince Edward Island have all been given ultimatums from the Federal Government over RCMP policing contracts. Ottawa has demanded the return of HST harmonization money from BC. Mr. Harper’s government has taken on various unions and the Parliamentary Budget Officer. He has fired Linda Keen, the Canadian Nuclear Safety Commission chair, for doing her job. This does not include the recent changes to federal health expenditures or provincial discontent over changes to the Criminal Code. Mr. Harper has not shown himself to be a negotiator like previous PM’s like Trudeau or Mulroney. So why would Mr. Harper want to take on a monumental Constitutional challenge now? Or, who would support him?

Accordingly, Canada will not change its Constitution and by the rules of the Commonwealth Crown, if one realm will not change its governing law; the law cannot be changed in all realms. So the English are dependent on Canada to amend the Act of Settlement. Yet Canada will not act. Now do you see why Canada will prevent the modernization of the British Commonwealth?

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8 thoughts on “Why Canada will stop the Commonwealth from changing the rules of Succession

    1. Dear Anyoldiron, while the British People have not been asked the Liberal Democrats in the UK have made it clear that they wish to see a change in the line of succession. Furthermore, the UK Coalition Government has taken this issue up at several Commonwealth Meetings. If and when that Government wants to make a change it can simply put the Legislation before the English Parliament for approval. However the same is not true for Canada. In the Canadian case, all of the provinces and the federal government need to be in agreement to make changes to the monarcy. Therefore, Canadian federal-provincial relations could derail a Commonwealth attempt to change the monarchy. The scary thing is that federal-provincial relations are not getting any better, they are only getting worse. Given the British would not likely update the monarchy without the unanimity of the Commonwelth, we are likely to have the old rules for sometime to come.

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  1. The situation is similar in Australia. My understanding is that the British parliament can amend the Act of Settlement and that there will be a flow-on affect throughout the Realms.However, according to the Statute of Westminster the only requirement is for the Realms to provide their consent.

    There is therefore considered to be no actual change to the Canadian (or Australian) constitution. As far as Canada is concerned, I an open to being informed that I am wrong, but I don’t think so.

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    1. Yes, the British Parliament can amend the Act of Settlement on its own. However, those changes would only effect the British due to the Statute of Westminster and other legislation. For, in most of the Commonwealth, Consent would likely mean a constitutional amendment. Well, at least, that is the case in Canada.

      Or put differently, “Consent”, in Canada, in my view, would still require a Constitutional Amendment. For our Constitution requires us to have a Constitutional Amendment when changing the powers of various institutions including the Crown. That type of Consent in Canada would require provincial permission/consent. Given that our present Federal Government is having issues with the provinces, it is unlikely that any changes to the crown in general will occur. That is -unless- the Commonwealth is willing to split the monarchy. Which i don’t see.

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  2. I understand that the leaders of all realms, including Canada, have now agreed in principle to the passage of legislation through their parliaments consenting to change to both the rule of primogeniture and the Act of Settlement.

    Philip Benwell

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    1. Dear Philip,

      There is a two part answer to your question. Based on your English, I am going to guess you are from the UK. Under the British System, the Constitution is changed by Parliament alone. Canada, fortunately or not, is a federation. Under our Constitution, each province and the federal government is required to approve any changes to “the office of the Queen, the Governor General and the Lieutenant Governor of a province”. (Constition Act, 1982). In my opinion, a change to the line of succession would be a change to the office of the Queen – at least in Canada.

      With this in mind, given the fractious nature of Federal and Provincial relations right now, I don’t think the Federal Government will get that consent. As a result, the question becomes what happens if Canada doesn’t ratify the change.

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      1. Many thanks for your comment. Actually, I am the National Chairman of the Australian Monarchist League and have been involved in blocking proposals to amend the Act of Settlement via the House of Lords on two occasions.

        Both Labour prime ministers Tony Blair and Gordon Brown dropped proposals for change as they ultimately considered it too difficult and divisive and yet David Cameron is perusing this with a vengeance.

        Following the agreement of the heads of government at CHOGM last year, the Australian government accepted our submission that the Australian States must also consent because they are constitutionally individual sovereign States within a federation. Most States have their own Royal Style and Titles Acts and, unlike the case in Canada, our Governors are appointees directly by The Queen. We also submitted that a referendum of the people should be held, but this was rejected.

        Five of our six State premiers have now agreed to defer the right of their States to vote to the Federal parliament. We have commenced a campaign against these premiers for abrogating the sovereign rights of the people in their respective States.

        My concerns are that politicians are rushing to change what are essentially the founding Acts of the current dynasty without any thought of the potential consequences.

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      2. I am truly honoured that you follow my posts.

        I do agree that we should be careful with all Constitutional changes. With that being said, my concerns with the change do not come from a Monarchist perspective. While, I am proud of our Constitutional History and Institutions, the proposed changes are not material in nature. Therefore, the change to the order of succession will not materially effect the institution.

        My concern, though, is that our Federal Government will try to ignore proper Constitutional procedure. For Prime Minister Harper – the Prime Minister of Canada – and his government have angered a variety of Provincial Governments and Legislatures. Therefore, I believe he could not get the support required. This is especially true given that two provinces (ie. Ontario and Quebec) have a minority government and Quebec’s Government is one that favours Sovereignty.

        Given his dictatorial nature, my guess is he will try to use the Privy Council to approve the change – a strategy used before the 1982 Constitutional Amendments. My understanding of the Constitution Act of 1982, he should now have to go to Parliament and each provincial legislature. My hope is that my own party will not let him avoid the “Rule of Law” and call him on it. The Rule of Law is one of the best parts of the Westminster System. I should know my parents come from Barbados and Jamaica. So I know the value of the Rule of Law.

        Either way, I hope to keep in contact with you and that you continue to enjoy the posts.

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