One last shoe to drop

“Today, Liberals have to be courageous in dealing with two bills that are before the House of Commons: C-7 (Senate Reform Act) and C-53 (Succession to the Throne Act, 2013). I say that we have to be courageous not because I oppose those Bills, but because the Government is not following the “rule of law”. Or put differently, as the Harper Government is trying to change the Constitution without going through the proper procedures. While we – the Liberal Party – have largely stood silent.”

  • I wish I was a lawyer…, by Russell Scantlebury,, February 7, 2013

So back in February of 2013, I made a couple of claims. I noted that the Harper Government was trying to change the Constitution in an illegal manner. The House of Commons alone could not amend the Senate or the order in which anyone can succeed to the Crown. It would seem that the recent Supreme Court decision has backed up one of my arguments. I am just waiting for the Succession to the Throne Act (2013) to be ruled unconstitutional.

For if one forgets, the Harper Government claimed that “no constitutional amendment is required for Canada to give its assent to this U.K. legislation. The legislation introduced today is in keeping with the Preamble to the Statute of Westminster, 1931, which provides that any changes to the laws governing succession require the assent of Dominion Parliaments. The Government of Canada is working in collaboration with all parties to ensure swift passage of the bill.” (Harper Government Introduces Legislation to Give Canadian Assent to Changes to the Laws Governing the Royal Line of Succession, Government Press Release, OTTAWA, January 31, 2013)

In fact, the Honourable James Moore, the Minister of Canadian Heritage and Official Languages, at the time, claimed “since the Commonwealth Heads of Government Meeting in 2011, Canada has been working with the other 15 Realms to amend the rules governing the line of succession to the Throne. This new legislation will ensure that the Canadian Crown remains a vital and modern institution that reflects Canadian ideals.”

At the time, he argued that the Parliament of Canada alone could end the practice of placing male heirs before their elder sisters in the line of succession. It was passed on January 31, 2013 and received Royal Assent on 27 March of the same year.

However, there is a problem. The Courts have already indicated since O’Donohue v. Canada (2003) “that the rules of succession are essential to the proper functioning of the monarchy and are therefore, by necessity, incorporated into the Constitution of Canada. The structure of the Canadian Constitution as a constitutional monarchy … and the principle of sharing the British monarch, are fundamental to our constitutional framework with the result being that the rules of succession must be shared and in symmetry with those of the United Kingdom and other Commonwealth countries.” (Teskey v. Canada (Attorney General), 2013)

Consequently, we already know that the Succession to the Throne Act (2013) is unconstitutional. However, the Courts understanding of constitutional power and constitutional amendments was reaffirmed in the last couple of weeks with the rulings in Reference re: Supreme Court Act ss. 5 and ss.6 (2014) and Reference re: Senate reform (2014).

So the only question is who is going to get the nightmare of a Supreme Court Decision striking down the Succession to the Throne Act (2013). When that act is struck down it will have a large amount of repercussions. If one remembers the abdication crisis caused by Edward VIII, one will know that an unknown or unanticipated event could leave us with a set of issues. Or put differently, every law, regulation and by-law subject to the Government of Canada is put into force in the name of the Crown. Without the ascent of the proper Sovereign of Canada – the King or Queen of Canada – no law has effect.
Consequently, if this law is struck down twenty years from now, the Supreme Court of Canada will have to determine the recourse for the Government.

There are a number of examples that come to mind. There are ridiculous ones: like say, an affair was had and a genetic test was needed to sort out the line of succession. Or there are simple ones: like a future abdication crisis. Either situation could lead to two possible lines of succession. English History is full of such examples. Either way, it is possible that the Courts of Canada could find that because the laws were not passed properly that a whole set of laws are then invalidated. Those could be treaties or criminal laws. They could be pardons or they could be regulations. Either way, Canadian Society will find itself in a state were legal certainty might not be easy to find.

But that is only the beginning. This type of situation would affect the governance of fifteen other Commonwealth members as well. For example, due to the Statute of Westminster (1931), if Canada has not properly assented to the change in Head of State, British Courts could find that it had a knock on effect. In other words, it could be that under British Law, the actions of the Canadian Government have an undesired effect. While these examples are profoundly speculative, they also are a warning: we should understand the line of succession of the Canadian Crown. It should be clear. Today, I fear it is not.

As I learned a long time ago, if I fear something I should say so. Consequently, I am. I ask my party again to be brave and courageous because I don’t have the resources to do so on my own. Liberals need to be willing to explain to Canadians that a line of succession change has to be done correctly or we might find ourselves with an unwanted monarch. If I was a lawyer, I would have taken it years ago. It is true that I have been railing about Mr. Harper’s cowardly attempts to change the Senate and the Monarchy. But to date, my railings have been proven to have merit.

As Liberals, we have always stood for reform. We have also stood against the ills that can be generated against our fellow citizens. This vision has provided society with the ability to defend individuals – even the most heinous of us – and provided a society that measures its accomplishments by uplifting all of us. For our history has shown us that a society that provides the best benefit to the majority cannot simply do so at the cost of individuals or minorities. Thereby, in defending the “Other”, we are defending ourselves and our own interests. Even, if this means defending the Crown.

In standing for the “Other”, we have always found that Objective Goals are always the most helpful. For, how can we know that we have improved society without the measures to show us that we have? Or how will we know when we have to switch or question methods. Therefore, our credo has been simple: courage, science, objectivism and pragmatism. My only hope is we will take on those words again and allow the last shoe to drop.

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