Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 32 - Evidence for March 20, 2013
OTTAWA, Wednesday, March 20, 2013
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-53, An Act to assent to alterations in the law touching the Succession to the Throne, met this day at 4:17 p.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon. Welcome, honourable senators, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. We are meeting today to begin our consideration of Bill C-53, An Act to assent to alterations in the law touching the succession to the throne.
Bill C-53 gives its assent to the United Kingdom succession to the Crown bill, which is currently before the British Parliament. The British bill seeks to end the practice of placing male heirs before their elder sisters in the line of succession and also removes legal provisions that deem heirs who marry Roman Catholics to be ineligible to succeed to the throne. Bill C-53 seeks to provide the assent of the Canadian Parliament to these alterations to the succession to the throne in Britain.
As a reminder to those watching these committee hearings, they are open to the public and are also available via webcast on the parl.gc.ca website. As well, you can find more information on the schedule of witnesses on the website under "Senate Committees."
To begin today's deliberations, I am pleased to introduce to the committee Benoît Pelletier, professor in the Faculty of Law at the University of Ottawa, and appearing via video conference, Andrew Heard, who is an associate professor in the Department of Political Science at Simon Fraser University.
Welcome, gentlemen. We will begin with Professor Heard, who is appearing from Victoria, British Columbia.
Andrew Heard, Associate Professor, Simon Fraser University, as an individual: Thank you very much for the opportunity to appear before you.
In my view, Bill C-53 does not affect changes to the royal succession but simply consents to changes being made in the U.K. Canadian consent to those changes is only required as a matter of convention, not as a matter of either Canadian or British law. However, a question does arise as to whether changes to the royal succession can be done in this manner or whether they have to be expressly enacted in Canada. If it is in Canada, then there is the issue of whether this can be done by the Canadian Parliament acting alone, or whether this is a matter requiring unanimous consent because it touches on the office of the Queen.
The main stumbling block is the Canada Act, 1982, which declares in section 2 that no act of the Parliament of the United Kingdom shall extend to Canada's part of its law after effectively 1982. Similar provisions relating to Australia and New Zealand have led those countries to take a different course of action than is being followed in Canada. They are enacting their own statutes governing royal succession. In effect, they are creating distinct Australian and New Zealand royal families.
However, I do not believe that this declaration in the Canada Act should be taken as an absolute literal truth as there are still ways in which future British laws on various subjects will be recognized and enforceable in Canada. This is known as incorporation through reference, in which a domestic legal rule provides that such and such foreign law is to function as part of our law.
I believe our law incorporates present and future U.K. legislation on royal succession. In short, the Canadian law governing our head of state is that whoever is the British monarch is our head of state.
I must pause here and recognize that this position runs counter to that of the Ontario Court of Appeal in the O'Donohue case. This decision affirmed the position taken by a lower court judge who held that the laws of succession are a part of Canada's constitutional law. If this position were to be taken at face value, it would lend weight to the argument that changes to royal succession would have to be undertaken through the formal amending procedures here in Canada. However, a judgment of one provincial appeal court is not definitive for all of Canada, and I feel that aspects of this decision misstate matters.
Some commentators have mentioned also that we have a Queen of Canada and therefore any changes to the law of succession must be made within Canada to have effect here. However, I believe this confuses the significance of the Queen's title as Queen of Canada enacted by the Canadian Parliament in 1953. This was only a title, a label, and not a reformulation of the whole office of the Queen of Canada. It did not create a distinct Canadian monarchy. While we have seen political and cultural construction of a Queen of Canada in recent decades, this remains only a political notion rather than a legal one.
What we do have that is distinctly Canadian is a legal fiction, the Crown in Canada. In law, we have a unique legal entity, the Queen in right of Canada, through which the business of the Canadian government is conducted. There are also similar legal entities for each of the provinces, but one must not overstate these legal personas. The existence of a Canadian Crown is in law distinct from the laws governing which individual is monarch. Our Canadian law is that whoever occupies the U.K. throne is our head of state. That individual then embodies the legal powers of the Crown in right of Canada, of Manitoba, of British Columbia, et cetera.
We could change the situation at any time by making changes through the relevant amending formula to enact our own rules of royal succession. We would then effectively create a distinct Canadian royal family and unique Canadian monarchy, but Bill C-53 does not attempt any of this and is a valid expression of Canada's consent to the changes being made in the United Kingdom.
The Chair: Thank you, Mr. Heard.
[Translation]
Benoît Pelletier, Professor, Faculty of Law, Civil Law Section, University of Ottawa, as an individual: Honourable senators, thank you for inviting me to discuss this bill which is brief but of fundamental significance as it deals with the selection of the person who could become the king or queen of Canada.
Before I make my official presentation, allow me to say that I value the monarchy as being best suited to the needs of Canada. This is based on the role of the Prime Minister, government, and on the historic role monarchy has played within the Canadian system.
I am therefore one of the Quebecers — I do not know how many there are of us — who are in favour of the monarchy. The presentation I will be delivering to you in a moment comes from a purely legal standpoint, it is not influenced by the political mainstream, it is meant to be fully objective.
I have already emailed you a set of documents. Today there are two more documents that have been circulated to you, one is the text of my presentation along with a ruling which is not of singular importance, but that I had failed to send in my initial email. There is also a second document, a British statute, the Interpretation Act.
The comments I will be making today refer to one of the documents I have given you. In other words, if I refer to you a decision or an act, you will know that I have had it sent to you, and you received it either by email, or in today's documents. I will now proceed to my presentation.
[English]
There is no need to apply the procedure for amending the Canadian Constitution that is provided for in Part V of the Constitution Act, 1982. For reasons that will be explained more in details below, some British laws, like the Bill of Rights and the Act of Settlement — laws that would be amended by Bill 81 in the United Kingdom — are not covered by Part V.
In particular, there is no application of subsection 41(a) of the Constitution Act, 1982, pertaining to amendments to the office of the Queen. Bill C-53 does not affect the constitutional status, powers and rights in Canada of the sovereign. No royal powers or prerogatives are involved by Bill C-53. Clearly, this bill does not affect the office of the Queen.
The Canadian Parliament can pass an act concerning the line of succession to the throne on the basis of its residuary power. There is no need for the Canadian Parliament or government to consult the Canadian provinces or, a fortiori, to obtain their consent. The precedents of 1937, 1947 and 1952 indicate that the provinces were not involved with amendments concerning succession to the throne or the royal styles and titles. The provinces did not react either. No constitutional rule, including constitutional conventions, requires the participation of the provinces whatsoever. In Canada, there is one sovereign under one set of rules, belonging to the federal order of government only, except when subsection 41(a) of the Constitution Act, 1982, applies.
However, it would have been a good thing, in terms of federal courtesy and in regard to the federal nature of our system, that the federal government officially informs the provinces and even consults them on the current issue.
We are not sure that the way things are done in Bill C-53 is adequate. Two solid theses could be advanced. The first one is that an assent given in accordance with the preamble to the Statute of Westminster, 1931, would be sufficient. The other is that the Canadian Parliament should not only give consent to the passing of Bill 81 in the United Kingdom but should also adopt a law that would mirror the British law.
The first thesis could be supported by the following arguments.
First, the preamble to the Constitution Act, 1867, speaks of "One Dominion under the Crown of the United Kingdom of Great Britain and Ireland . . . ." On this basis, it may be argued that the sovereign in the United Kingdom is also automatically the sovereign of Canada. The United Kingdom determines the selection of the person who is a sovereign of the U.K., and that person becomes ipso facto the sovereign of Canada.
Second, section 9 of the Constitution Act, 1867, provides that the executive government and authority of and over Canada is hereby declared to continue and be vested in the Queen. Therefore, it may be argued that the Queen exercising sovereign authority in 1867 was the reigning monarch of the United Kingdom, that it is still that person, and that it will be in the future that person and its successors, as chosen by the rules in place in the United Kingdom from time to time.
The third argument is the repeal of section 2 of the Constitution Act, 1867, by the Statute Law Revision Act, 1893. Section 2 provided that "the provisions of this act" — the British North America Act, 1867 — "referring to Her Majesty the Queen extend also to the Heirs and Successors of Her Majesty, Kings and Queens of the United Kingdom of Great Britain and Ireland." Section 2 was repealed on the basis that it was redundant because the Interpretation Act, 1889, a British statute, provided that the references to the sovereign at the time an act was made should "unless the contrary intention appears be construed as referring to the Sovereign for the time being."
The last and fourth argument is something that I will explain below about the decisions of the Court of Appeal of British Columbia and the Supreme Court of Canada in the Farrell case.
As for the second thesis, the thesis that supports the mirror law, it is supported by the following arguments.
First, in 1937 when the Parliament of Canada passed An Act Respecting Alteration in the Law Touching the Succession to the Throne, section 4 of the Statute of Westminster, 1931, was applied. It means that it was presumed by the federal Parliament and government that the British Abdication Act was to be part of Canadian law. Even if such a presumption did not exist at the time, the recourse to section 4 of the Statute of Westminster, 1931, probably had the effect of integrating the Abdication Act into Canadian law.
The second argument: In Rex v. Hess, the British Columbia Court of Appeal declared that Magna Carta, 1215, the Petition of Right, 1627, and the Act of Settlement, 1701, which is not at issue here, were part of the Canadian Constitution through the preamble to the Constitution Act, 1867.
In Farrell, the Supreme Court of British Columbia used Magna Carta to declare invalid a provision of a B.C. law. However, it should be noted that this decision has been overruled by the Court of Appeal of British Columbia. The Supreme Court of Canada confirmed the latter decision. Both the B.C. Court of Appeal and the Supreme Court of Canada did not apply nor even mention Magna Carta. Consequently, it may be argued that these two courts impliedly rejected, at the time, the view that Magna Carta forms part of the Canadian Constitution. Of course, Magna Carta is not involved in the present issue, but the conclusions of the courts about the inclusion or not of Magna Carta into Canadian law may be an indication of how they would consider the Bill of Rights and the Act of Settlement.
Fourth, in Chapman and Currie, a District Court in Ontario declared that the Habeas Corpus Act, 1679, a British law, applied to Canada. It should be noted that this decision from the District Court was affirmed by Justice Stewart of the High Court of Justice on August 11, 1970. Justice Stewart came to the conclusion that the Habeas Corpus Act was in full force and effect in Ontario. Even if the Habeas Corpus Act had nothing to do with the line of succession to the throne, a question may be asked as to whether or not we should come to the same conclusion as that of the District Court and the High Court of Justice, above mentioned, with regard to the Bill of Rights and the Act of Settlement.
Fifth, in Ganapathi, Justice Hume from the Provincial Court of Justice applied Magna Carta as if it were part of the Canadian Constitution. However, the Supreme Court of British Columbia, to which the decision of Justice Hume had been appealed, did not want to determine whether the Magna Carta did effectively apply to British Columbia. Justice Hinkson from the Supreme Court of British Columbia had these very interesting comments:
Thus even if Magna Carta is in force in British Columbia, it, like any other statute, is subject to amendment by the Legislature . . . . The only requirement in these circumstances is that the legislation be clear and unmistakable.
In 1973, in Calder, the Supreme Court of Canada said what follows with regard to the Royal Proclamation of 1763:
Its force as a statute is analogous to the status of Magna Carta which has always been considered to be the law throughout the Empire. It was a law which followed the flag as England assumed jurisdiction over newly- discovered or acquired lands or territories. It follows, therefore, that the Colonial Laws Validity Act applied to make the Proclamation the law of British Columbia.
In the Patriation Reference of September 1981, the Supreme Court of Canada unanimously declared that the Bill of Rights of 1689 — now we have the Bill of Rights here, which is supposed to amend it in this issue — is "undoubtedly in force as part of the law of Canada."
In 1993, in New Brunswick Broadcasting Co., Madam Justice McLachlin said what follows concerning the preamble to the Constitution Act, 1867:
. . . it is clear that, absent specific reference, the wording of the preamble should not be understood to refer to a specific article of the English Bill of Rights. This is not to say that that (sic) principles underlying art. 9 of the English Bill of Rights of 1689 do not form part of our law . . .
Finally, in O'Donohue, the Ontario Superior Court of Justice came to the conclusion that the rules governing succession in general and the Act of Settlement in particular were part of Canada's Constitution in such a way that they were not subject to Charter scrutiny.
If ever the Senate retains the second thesis, that is, the mirror law, then it will have to answer to three questions. First, if the Bill of Rights and the Act of Settlement are part of Canada's Constitution, why do we not apply the procedure for amending the Constitution of Canada that is provided for in Part V of the Constitution Act, 1982? Second, under what basis could the federal Parliament adopt a law that would amend the Bill of Rights and the Act of Settlement? Third, would the act passed by the federal Parliament be subject to Charter scrutiny?
The answer to the first question is that many definitions could be given to the Constitution of Canada. For example, in its widest sense, it includes many British, federal, and provincial laws; the common law; constitutional conventions; customs; decisions from Parliament or the legislatures; decisions from the federal and provincial governments; doctrine; different constitutional underlying principles; and even domestic treaties, such as Aboriginal treaties.
A stricter definition of the Constitution of Canada is given in the Patriation Reference of 1981. In this opinion, the Supreme Court of Canada said that the Constitution of Canada is composed of laws, common law and conventions.
An even more strict definition of the Constitution of Canada is given by subsection 52(2) of the Constitution Act, 1982, and its annex. This definition is related to the application of the procedure for amending the Constitution of Canada that is provided for in Part V of the Constitution Act, 1982. This relationship between the definition of the Constitution of Canada that is given by subsection 52 on the one hand, and Part V of the Constitution Act, 1982 on the other hand, is well illustrated by subsection 52(3), which provides that "Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada."
It appears that the Bill of Rights and the Act of Settlement are not explicitly covered by subsection 52(2) of the Constitution Act, 1982. Even if the definition of the Constitution of Canada that is given by this subsection is not exhaustive, as the word "includes" in subsection 52(2) indicates, we doubt very much that such a definition could be extended to the point of including statutes like the Bill of Rights or the Act of Settlement. In other words, we do not think that these two statutes are covered by subsection 52(2) of the Constitution Act, 1982. Therefore, they are not covered either by the provisions of Part V of the Constitution Act, 1982. It follows that if the Bill of Rights and the Act of Settlement were to be considered as being part of the Constitution of Canada, it would be in the widest sense of the latter expression or in the sense that was given to it in the Patriation Reference, and not in the sense of subsection 52(2) of the Constitution Act, 1982.
As for the second question, the answer is section 2 of the Statute of Westminster, 1931, which allows Parliament, and the legislatures when applicable, to repeal or amend British acts that are not covered today by subsection 52(2) of the Constitution Act, 1982, such as the Bill of Rights and the Act of Settlement.
Finally, the answer to the third question is yes. The third question concerns Charter scrutiny. Even after the passing of Bill 81 by the British Parliament and of a mirror law by the Canadian Parliament, there would be some discrimination against Catholics. However, it would be very doubtful that a court declares the said mirror law unconstitutional on the grounds of the Charter of Rights and Freedoms. The most chances are that the mirror law in question be saved by section 1 of the Charter. However, there would still be a risk, although extremely slight, that the mirror law does not pass the test of section 1 of the Charter and be partly declared ultra vires.
The Chair: We will begin our questioning with the deputy chair of the committee, Senator Fraser.
Senator Fraser: I have two questions, one for each of you. I know the chair will be rigorous about time, so I will ask you to reply as succinctly as you can.
First, Professor Heard, I betray the fact that I am not a lawyer here. The Statute of Westminster, when it is talking about the law of succession, says that the "assent" of the dominions is required, and elsewhere, when it is talking about other laws, it says that the "consent" of dominions may be required. Is this a distinction without a difference? Is there anything meaningful in the use of the two words, assent and consent?
Mr. Heard: I do not think I would put any stock in the difference between the two words, no. I think that they are much the same.
[Translation]
Senator Fraser: Professor Pelletier, my question concerns your experience as both a lawyer and a parliamentarian. I was somewhat puzzled when I noted that the bill before us would grant consent to amendments brought to a bill tabled in the UK parliament, in other words, we are being asked to consent to a foreign bill before it has even received passage and even if it may have been amended.
When we are told that our consent is required for a bill that has already been tabled, does this limit us to the tabled version or could the bill potentially be the subject of amendments?
Mr. Pelletier: Allow me to answer in three parts. First, consent in the Westminster Statutes' preamble refers to consent to the principles of passage of legislation.
Of course, this bill may yet receive amendments. Her Majesty the Queen will probably wait until the 15 other countries involved in the process give their consent before proclaiming the new act in the United Kingdom. We are dealing with consent to the principles of an act. In the case before us, the bill deals with changes to the succession to the throne.
Second, there is a major difference between consent in the Westminster Statutes' preamble and what is provided in section 4 of the statute. Section 4 applies when British law becomes applicable in Canada. Since 1931, no British law has been applicable in Canada unless Canada agreed to consent to it and request it.
However, that should be set out specifically in the British legislation. The British act could apply in Canada providing these two conditions were met. Since 1982, under the Constitution Act of Canada, no British legislation can be applied in Canada. While the vast majority of people view the preamble as simply being a conventional type of consent, the difference is significant.
Unfortunately, I do not agree with what Mr. Heard has said because, in my opinion, there is a difference between the two. In addition, there is the whole issue of the mirror legislation. I said earlier that it was very difficult to make any guarantees to senators that the procedure provided for in Bill C-53 was completely adequate and would protect legislation from some type of prosecution before the courts.
Madam Senator, that means that I am absolutely sure that there are no constitutional amendments. Moreover, I am not completely sure that there is no duty to consult the provinces, although I did say that it would be proper to do so.
Nor am I sure that this procedure is completely watertight, although I do admit that I tend to agree with the federal position, namely, without being able to provide any guarantees, my analysis leads me to believe that the person who will be named king or queen of the United Kingdom will eventually at the same time become the king or queen of Canada.
Senator Joyal: Mr. Pelletier, welcome to the committee. Mr. Heard, I would like to qualify what you said about the Statute of Westminster.
[English]
If you do not have the translation, Mr. Heard, I will repeat it in English.
I have a nuance about the statement you made about the Statute of Westminster. The Statute of Westminster, in my opinion, is more than a convention or an expression of good intention. If you read section 52(2)(b) of the Constitution, it says clearly that:
The Constitution of Canada includes;
(b) the Acts and orders referred to in the Schedule;
If you look at Item 17 of the Schedule to the Constitution Act, 1982, it is clear: "Statute of Westminster," "insofar as they apply to Canada." Therefore, the Statute of Westminster, insofar as it applies to Canada, is part of the Constitution of Canada. It has the same constitutional impact as any other section of the Constitution. Of course, in relation to Bill C-53, it is clear that it is the preamble that refers to the succession.
I will read the preamble because I do not believe you mentioned this, Mr. Pelletier: ". . . any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom; . . . ."
This is part of the Constitution of Canada; it is more than a convention. It is a responsibility of the federal Parliament — of the Parliament of the dominion — to consent to any change to the "Royal Style and Titles" or to the "Succession to the Throne."
It seems to me that it is pretty clear that our Constitution, as enshrined in disposition of the Statute of Westminster in the schedule according to section 52(2)(b) of our Constitution, that when the federal Parliament legislates in relation to expressing a consent to changes, it exercises a mere constitutional responsibility. Therefore, I do not think the question of the Bill of Rights and the law of succession is essentially as dubious as you might say. It might be a very interesting question, even though, as I mentioned to you, the preamble is quite clear. The preamble of the Constitution Act, 1867, says "a Constitution similar in Principle to that of the United Kingdom."
We all know that the Bill of Rights, the law of succession and the Act of Settlement are part of the Constitution of the United Kingdom. In fact, they are the foundational documents of the Constitution of the United Kingdom. Therefore, even though the letter of the Bill of Rights and law of succession are not part of the Constitution of Canada, because they are not in Item 17 of the Schedule to the Constitution Act, 1982, as the judges have said in many instances, nevertheless their principles are part of the Constitution of Canada. That is where there is a nuance that reconciles your doubt about the importance of those documents in understanding our Constitution.
Mr. Pelletier: With all due respect, Senator Joyal, I did not say the Statute of Westminster was conventional. I said that the consent that is provided for in the preamble was conventional. The Statute of Westminster is clearly part of Canada's Constitution by virtue of Item 17 of the Schedule to the Constitution Act, 1982. There is no doubt about it.
However, I am not the only one who says that the consent provided for in the preamble is conventional. Many authors say so. Why do they say so and why do I say so? If it were not conventional, any of the 16 countries involved in the process could apply a veto against a change to the rules of succession to the throne. Historically, the understanding was that such consent was conventional.
However, again, I did not say that the Statute of Westminster was not part of the Constitution of Canada; it is.
Senator Joyal: It is part, in my opinion.
Mr. Pelletier: It is. If you want to change the Statute of Westminster, then you probably have to proceed through Part V of the Constitution Act, 1982.
It is not what I said. I said that the consent provided for in the preamble — and I could refer you to different authors eventually, if you like — is considered as being conventional. I do not say that it is something that should be misused or that is not important. That consent is important.
However, the will, probably, of those who enacted the Statute of Westminster was not to give a veto to a dominion over the change of the succession to the throne.
Senator Joyal: Certainly not.
Would you care to comment, Mr. Heard? That is why Professor Pelletier and I have spoken in English — so you could join the discussion.
Mr. Heard: Thank you.
Yes, I agree with what Professor Pelletier is saying. I think it is important to distinguish between the part of the Statute of Westminster that is in the preamble and that which is in substantive clauses. The reference to our consent being needed to change the law of succession is just in the preamble and, as such, has not nearly the same weight as something contained in the body of the statute.
It is also important to remember that those statements in the preamble were coming out of a succession of agreements from the Imperial Conferences from 1926 to 1930. In those conferences, they agreed that in particular circumstances the United Kingdom could proceed without consent with respect to succession and, if necessary, obtain consent after the fact.
Senator McIntyre: The Minister of Justice and the Attorney General of Canada introduced Bill C-53 in the House of Commons on January 31 this year. On February 4, the House of Commons adopted, by a single motion, Bill C-53, at all stages, without any debate. On February 5, it was introduced and read the first time in the Senate.
I was somewhat surprised to see that there were no debates in the House of Commons regarding this bill. As noted by Senator Joyal in the Senate recently, Bill C-53 is an important bill because in fact we are choosing our head of state.
I understand there was some debate in the British Parliament and in the House of Lords. Are you aware of any debates in other countries of the Commonwealth, and are you aware of any opposition to the U.K. crown bill in the other countries of the Commonwealth?
Mr. Heard: I am not aware of any opposition. There has been widespread support given by all the heads of government of the Commonwealth realms, the only differences being questions of how to proceed over this. As I mentioned, both New Zealand and Australia have decided to enact their own versions of laws on royal succession. Most of the other parliaments of the other countries are not in session at this moment, so we have not been able to see what they are about to introduce. They may well be waiting for the U.K. act to complete its journey before they act on it themselves.
Mr. Pelletier: I am not aware of any opposition; I think that everyone agrees with the principle.
Among the documents I sent to you is one written by Paul Bowers for the House of Commons of Great Britain. It is entitled Succession to the Crown Bill, 2012-13. In this document he explains that even if all the countries agree with the principle, they do not proceed the same way because of their Constitutions and the different modalities that apply in the different countries.
In the case of Canada, the situation we are facing is that there is only assent; that may be sufficient. I said earlier that I agreed with the federal position, although I know there are arguments against it.
However, in other countries, there may be different ways to proceed — even in some cases through constitutional amendments. If section 2 of the Constitution Act, 1867, had not been repealed in our history, we possibly would have had to go through a formal constitutional amendment, but it had been repealed.
[Translation]
Senator Rivest: Welcome to the Senate, Mr. Pelletier; at the end, you referred to the religious issue, which is historically tied to the British Crown, and you said that there may be a slight problem but that you did not feel that it would be a significant factor under section 1 of the charter. Given all of the legal, institutional and conventional precedents between Canada and Great Britain, do you feel that the fact that Catholics do not have access to the throne in England would constitute a reasonable limitation? Is this what you mean when you say that the charter test could be passed?
Mr. Pelletier: Yes, I wrote that there was a slight possibility. This is more a cautionary measure than anything else. I am pretty well convinced that this would pass the charter test. I am referring to Bill C-53 as it is currently drafted.
First of all, 16 countries are going to adopt the same amendments, perhaps not the same way, but they will essentially adopt the same amendments. It would be difficult to say later on that this is not reasonable and justifiable in a free and democratic society, particularly since this is based on historic grounds. We are familiar with the history of Great Britain, the United Kingdom, with respect to Catholics. We know that the king or queen becomes the head of the Church of England.
In my opinion, there are no risks under the Charter and should anyone challenge this, I do not believe that the matter would get very far.
[English]
Mr. Heard: The aspect of the establishment of the church in the U.K. is something very distinct from our own relationship with the Crown. There is no issue here about the connection between the Crown and the church. The only concern would be the religious discrimination issue, which Professor Pelletier has dealt with very well.
Senator Fraser: Perhaps I am just obsessed and it is not a problem, but I do have a difficulty with the notion that this Parliament, this sovereign Parliament, is being asked to assent to a bill that has been, in English, "laid before," in French, "déposé devant," the Parliament of another sovereign country before we know the final form of that bill. My obsession is compounded by the use of these words "laid before" and "déposé devant." This strikes me as a very strange way to proceed, one that could conceivably lead to difficulties if the sovereign Parliament of the United Kingdom in its wisdom chose to amend the bill. It would no longer be in the form in which it had been "laid before," "déposé devant," that Parliament. Am I crazy, or do we have a potential problem here?
Mr. Pelletier: You are absolutely right.
Senator Fraser: Either or both of you.
Mr. Pelletier: It refers to the way in which Canada proceeded in 1937 in the case of the abdication. Canada sent a cable. When I say "Canada," I mean the Government of Canada. It sent a cable consenting to the adoption of the Abdication Act in the U.K. and then after the fact passed a law. I noted that Canada invoked section 4 of the Statute of Westminster exactly as if it considered that the British law was part of Canada or should be part of Canada, because if it was not the case, there was no reason for invoking section 4 of the Statute of Westminster.
In this case, it could have been done the same way, and maybe should have. Should the Government of Canada have first expressed its consent? It did. Then, after the fact, maybe support the law, but then it would be through a mirror law. If you have only a law that assents to the passing of a British law, it must be before its adoption.
Mr. Heard: I think one needs to consider the timeline here as well. We have the requesting and the consenting occurring at the same time. The normal process would have been for us to request beforehand and consent to what was occurring, but the Statute of Westminster is framed in terms of request and consent being given prior to a bill being tabled or being passed by the United Kingdom Parliament. The wording of section 4 of the Statute of Westminster quite clearly indicates that the request and consent would normally be conceived as coming before the passage of the bill by the U.K. Parliament.
I believe the procedure is correct as far as the Statute of Westminster is concerned, but you are right, Senator Fraser, that it seems odd one is consenting to a bill that one does not see the final form on. In that sense, what we are doing with Bill C-53 is relating to the issues that are to be covered there, the end of male progenitors, the end of the Royal Marriages Act, and the restriction to just six degrees of relationship. We are stipulating in there the issues that we are concerned with and consenting to.
As well, Senator LeBreton mentioned in the Senate chamber that if changes were to occur to the United Kingdom Act after Bill C-53 were passed here, there is still a safeguard in terms of the procedures here in Canada. This act would not come into effect unless proclaimed by the Governor General. If really substantive changes went against the spirit of what had been agreed to by the Parliament of Canada, then presumably the Government of Canada could reintroduce another bill to either amend this or revoke its assent and introduce its own issues or its own rules of royal succession.
Senator Baker: On the same point, I presume that the final words of the bill, "This Act comes into force on a day to be fixed by order of the Governor in Council" would be the trigger mechanism to reintroduce a new bill if in fact the present bill is not approved in its present form in the British house. You have everyone saying, "Okay, we will pass this bill and allow the Governor-in-Council to set a date," and of course if there is a major change, then they would not proclaim it but they would introduce a new bill. Is that your understanding?
Mr. Heard: That is what I understand, yes.
Senator Joyal: The proviso is that the same session cannot vote twice on the same issue. That would be a legal problem. It is a rule of our procedure. We cannot vote twice in the same Parliament on the same issue. That would create another hurdle to face if that were to ever happen. However, that was not my question.
Senator McIntyre: I note that October 28, 2011, is an important date. First, the meeting of Commonwealth Heads of Government was held in Perth, Australia, on October 28, 2011. Second, if I am not mistaken, according to Bill C-53, the new rule regarding succession to the throne applies to heirs born after October 28, 2011. In your respective opinions, should a date other than October 28, 2011, have been chosen?
Mr. Pelletier: I am not sure I understand the question.
Senator McIntyre: October 28, 2011, was an important date; it applies to heirs born after that date. We know that the U.K. bill will not come into force until it goes through the 16 countries of the Commonwealth and the U.K. Parliament. Of course, the Queen has to consent and sign. Do you think that the date should be chosen once the Queen has signed the final documents?
Mr. Pelletier: I think it should be, but it is a very theoretical issue because of the fact that there will be no child probably born before the assent by the Queen. If there were one, of course the bill would be retroactive in order to cover that child, who would have been born between the assent to the bill and the date that you mentioned.
To be frank, I am not really at ease with this question. Maybe Mr. Heard could give you more details.
Mr. Heard: Essentially, that date is given because that is the moment at which all the Commonwealth realms gave their agreement to this change in succession, and they believed it should take effect from that moment forward. In a sense, there is a retroactive dating, but it covers the period from when the Commonwealth realms agreed through their heads of government to this change in succession.
[Translation]
Senator Joyal: Mr. Pelletier, I would like to go back to the issue of the applicability of section 41. Professor Patrick Taillon, who teaches at the Laval University law faculty, published an article last February 3 on the succession bill. In his article, he maintained that the bill in question, and I quote:
. . . directly affects the office of the Queen, which is protected under the Constitution Act of 1982.
His entire theory and interpretation throughout the article he published is based on the fact that section 31 provides that any changes to the office of the Queen must clearly be subject to the formula of unanimity. He ended his article by saying that the provinces therefore each had to give their consent to the changes contained in Bill C-53.
Could you tell us again why you believe Professor Taillon is wrong in his interpretation that the changes brought forward by Bill C-53 would impact the office of the Queen, as defined under section 41(1) of the Constitution?
Mr. Pelletier: Yes, with all due respect for Mr. Taillon, who is a great legal expert, I do not agree with him at all.
Section 41 is on "the office." In my opinion, this refers to the monarch's power, status and constitutional role, but not the issue of the royal line of succession.
If this was something that required amending our Constitution, then, in 1937, Canada should not have used section 4 and should instead have asked London to amend the Canadian Constitution, so that abdication could be granted. That is not how things went. We are not dealing here with a constitutional amendment.
However, serious and credible legal experts say that we are. I am convinced that if this was referred to the Supreme Court of Canada, to find out whether the provinces could veto the issue, the court would say no. This is in part because there is no direct relationship between the lieutenant-governors and the Queen. The lieutenant-governors are not appointed by the Queen, they are appointed by the Governor General. The relationship between the Queen and the lieutenant-governors here in Canada and those in Australia is different, for example.
This is why I said, earlier, that we have a Crown that is subject to rules and I do not believe that the intent was to give each province a veto — particularly because the relationships between the provinces, the lieutenant-governor and Her Majesty are so indirect.
[English]
Senator Joyal: Mr. Heard, did you hear the answer of Professor Pelletier to the question? Does Bill C-53 have any impact on the office of the Queen as per section 41 of the Constitution?
Mr. Heard: I do not think it has. An answer to this depends on how you view the office of the Queen as existing under our current Constitution. In my view, it is constructed in such a way that the Canadian constitutional provision is that whoever is monarch of the United Kingdom is our Queen or King. If the office of the Queen, as constituted in Canada, directly included these rules of succession, which we are trying to change in Canada, then I would agree with the argument made in the article. This is one of the disagreements and perhaps misunderstandings about the nature of what the office of the Queen is in Canada and how it is constituted. It is important to underline that the office is a limited construction in comparison to the office of the Queen in the United Kingdom. Our office of the Queen contains certain powers under the Constitution Act, 1982, that are necessary to the functioning of our government. However, inherent in that office is a fundamental rule of recognition that the person who occupies this position is determined by the U.K. rules of succession. Those rules of succession are not part of our office. Our office is saying that those rules of succession are determined by the United Kingdom Parliament.
Senator Fraser: On a supplementary for greater certainty on this matter, everyone thinks about this bill as it affects the right of a girl to inherent the throne. Obviously, the Queen cannot determine the sex of her descendants. The bill also limits sharply one real power that she retains: to veto the marriages of many people — all the descendants, except six of George II. Some of those people may be Canadians; who knows? I am not aware that she has exercised this power in relation to any Canadians, but for legal purposes, I want to be very sure and have it on the record that you do not think that that is part of the office of the Queen, even if the United Kingdom bill that we are about to approve makes reference to it.
Mr. Heard: No, I do not think so.
[Translation]
Mr. Pelletier: I do not believe so either. I do not believe that the Queen has this authority under Canadian law. Secondly, even if she did, I do not believe it would fall under the office of the Queen within the meaning of section 41(a) of the Constitution Act of 1982.
Senator Fraser: That is right.
[English]
Senator Buth: Could you comment on what the result would be if the bill were not to pass?
Mr. Heard: My belief is that the British law would have effect regardless of what occurs with this bill. This bill is a political conventional requirement — a nicety, as it were. However, it is not essential in any legal way to determining a change in the succession to the throne in the United Kingdom and who subsequently would be our head of state. A number of commentators in Britain have expressed the opinion that this change will take effect regardless of the consent given by the Commonwealth realms.
As far as the Canadian situation goes, it will have no impact. Therefore, the consent is a political, symbolic statement of agreement, but it is not a legal necessity and would not change the outcome if it had not been passed or if this bill were to fail.
Mr. Pelletier: I agree with this opinion. I said earlier that I think the consent provided for in the preamble to the Statute of Westminster is only a conventional one.
Second, the preamble to the Constitution Act, 1867, says that the sovereign of the United Kingdom is the sovereign of Canada. If ever there is a change in the sovereign of the United Kingdom, that change will be reflected in Canada.
However, again, is there a need here for a change in Canadian law? I do not think there is, but there are arguments in favour of it. I support the position of the federal government.
[Translation]
Senator Joyal: Mr. Pelletier, can you be more specific as to what the office of the Queen means under section 41?
Mr. Pelletier: Yes. For example, senator, there is the issue of Senate appointments which is provided for under section 24 of the Constitution Act of 1867. If we no longer wanted the Governor General to play a role in appointing senators, we would have to amend section 24 and this would fall under section 41(a). The same is true for the Governor General's power to grant royal assent and section 55 of the Constitution Act of 1867. The same is also true for the role of the lieutenant-governors and the abolition of the monarchy. The abolition of the monarchy must go through the rule set out under section 41(a).
What we are dealing with here are the powers and prerogatives of the Queen which are enshrined in Constitution, because some are not. They are enshrined in the Constitution through one act mentioned in section 52(2) of the 1982 Act. If it is one of Her Majesty's or of Her Majesty's representatives' powers in the Constitution Act, 1867, the amendment will involve 41(a).
Senator Joyal: Would you include the Queen's legislative authority, because the Queen proclaims legislation on the advice and consent of the Senate and of the House of Commons? If the Senate were to be withdrawn from the sovereign's exercise of legislative powers would this not affect section 41?
Mr. Pelletier: You are assuming Senate abolition?
Senator Joyal: Yes, for instance.
Mr. Pelletier: I do not think that would affect the Queen's status under 41(a) because the Queen would continue to be a component of the Canadian Parliament. But some legal experts would tell you that the procedure for constitutional amendments would have to be changed and that the unanimity rule under 41(e) would have to be applied. But that is a debate among legal experts. Either you apply 41(e), the unanimity rule, or 42(b), which deals with the powers of the Senate.
But at the very least, I believe Senate abolition would require the 7/50 procedure and perhaps even unanimity.
Senator Joyal: Yes but section 17 does state that the Parliament of Canada consists of the Queen, the Senate and the House of Commons. So the Queen, in exercising her legislative powers does so as a constituent of Parliament on the basis of the advice she must have received from both places.
If you change the exercise of her legislative power, in my opinion it may impact on the office of the Queen, as mentioned in section 41.
Mr. Pelletier: Two things, Senator: first, the assumption you have put forward is Senate abolition and I told you that I did not believe it would affect the office of the Queen, which remains a component of the Parliament of Canada pursuant to section 17 and section 91 of the Constitution Act, 1867.
Second, the few decisions in jurisprudence to date regarding Constitutional amendments — there are some but none from the Supreme Court I must add — do not allow us to apply procedures in such an indirect manner.
I will give you an example. In the case of the Quebec school system becoming non-confessional, some may have claimed it would affect Ontario because there was a type of compromise between Ontario and Quebec on the matter. The Quebec Court of Appeal refused to apply the procedure so indirectly.
It leads me to believe that the court would not go as far as you would suggest, but I will say again that many experts have written that Senate abolition is 41(e). So, either way it is unanimity.
[English]
Senator Joyal: Mr. Heard, would you have additional comments on the definition of the "office of the Queen," of what we should understand by the expression "the office of the Queen" as stated in section 41?
Mr. Heard: Yes, I think the "office of the Queen" referred to there is a very narrow vessel. I know that a number of scholars argued that it should encompass all aspects of the Queen and the Queen's powers, but I do not think that is either practical or what was intended. In my view, it includes the existence of the monarchy — so abolition would certainly be covered in this way — but also, after that, really only the specific powers that are mentioned in the constitutional documents included in that list in the section 52 of the 1982 act. Therefore, I do not believe that all powers of the Queen are part of the "office of the Queen" in this sense. I will explain that.
Very important powers of the Queen are the common law prerogatives. I think it is a great mistake to view those common law prerogatives to be part of the supreme law of the Constitution that cannot be affected by any ordinary legislation and must only be changed through a formal amending procedure. I think it has been a well-established rule of our Constitution coming from the British position that the common law prerogative powers of the monarch are subject to amendment, repeal and change by legislation in an ordinary legislative process.
Following from that logic, my argument is that there is really a very narrow vessel for the "office of the Queen."
The Chair: Mr. Heard and Mr. Pelletier, thank you very much for very informative contributions to our deliberations. We appreciate it.
Our next witnesses are from the Canadian Royal Heritage Trust, which is a national educational charity with a mandate to preserve, present and enhance the royal heritage of Canada. It was founded in 1994. It maintains an archive and library, a museum and display galleries and a website. The trust provides educational assistance to students and the general public. It conducts historical research and offers community presentations and public lectures.
The witnesses appearing today are Garry Toffoli, Executive Director of the trust, and Paul Benoit, Vice-Chairman.
Gentlemen, one of you, I am assuming, has an opening statement.
[Translation]
Paul Benoit, Vice-Chairman, Canadian Royal Heritage Trust: On behalf of the Canadian Royal Heritage Trust, I want to thank you for having invited us to participate in the debate on this bill that may, to the general population, seem a bit removed from their daily concerns.
As Senator Joyal so aptly noted in the Chamber the other day, I believe this issue goes to the very heart of our Constitution. It is in a way a mirror of us as Canadians, and is what makes our society a civil society.
I would like to begin by reading two small quotes from the Statute of Westminster. It was referred to in testimony we just heard, and I believe the matter may still remain somewhat unclear. In the Statute of Westminster, the wording is quite specific and unlike other witnesses, we believe there is a vast difference between assent and consent.
You are all familiar with the second paragraph of the Statute of Westminster, which is to be found in Bill C-53. The third paragraph of the preamble reads as follows:
[English]
And whereas it is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend to any of the said Dominions as part of the law of that Dominion otherwise than at the request and with the consent of that Dominion:
[Translation]
This very idea of consent is to be found in section 4 of the Statute of Westminster. I will now read you section 4.
[English]
No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.
[Translation]
On this basis, I will now turn over the floor to my colleague, Mr. Garry Tiffoli, who will give you a summary of our brief.
[English]
Garry Toffoli, Executive Director, Canadian Royal Heritage Trust: In our brief, we gave a more detailed explanation of our position, but to give some of the highlights, the premise that Bill C-53 is sufficient is based on four assumptions: one, that the Queen of the United Kingdom is automatically the Queen of Canada; two, that the United Kingdom controls the succession law and can extend that to Canada; three, that there is no Canadian law of succession; and four, that the Crown of the United Kingdom of Great Britain and Ireland, as referred to in the preamble of the Constitution Act, 1867, today means the Crown of the United Kingdom of Great Britain and Northern Ireland and not the Crown of Canada.
These four theories were rejected in 1936 at the abdication of King Edward VIII. The Canadian government and Parliament of Canada, the Government of the United Kingdom and the Parliament of the United Kingdom all agreed that there was no automatic transfer of succession from the abdication of Edward VIII to the accession of George VI. When Edward VIII did the draft of his instrument of abdication, initially it only referred to the United Kingdom. Once the dominions agreed, the instrument of abdication as it finally appeared refers to his abdication as the United Kingdom and the British dominions.
Then the question was how to apply this abdication and George's succession to the different dominions. This is the difference between assenting to the bill or the act and request and consent. It was agreed by the United Kingdom Parliament and the Canadian government and Canadian Parliament that the law had to be extended into the law of Canada. The process by which this was done was a Canadian order-in-council requesting that the Parliament of the United Kingdom extend the act of the alteration of the succession to the law of Canada as part of the law of Canada, not just to apply to Canada but to become part of the law of Canada. That is what section 4 states and what was invoked.
It is worth remembering that there were five dominions in 1936, and four different processes were used to apply the abdication to those five dominions. It was only in Canada that the request and consent that the act be extended to the law of Canada was invoked. Canada was unique, and we can go into that, if you wish, in questions. It is in our brief why it was not done for the other four dominions.
The assent of the parliaments, which is referenced in the preamble, is a courtesy; it is not a legal requirement. In fact, no parliament of the dominions gave their assent before it took place: It was how it applied to the parliaments. The Canadian Parliament's assent was given three months later, on March 31, 1937, retroactively. In fact, the assent of the Canadian Parliament was given in the name of King George VI, who was already the sovereign in law, to the change in succession, which obviously would not make any sense if that were a requirement. The act in the United Kingdom is in the name of King Edward VIII.
The actions of 1936 confirmed it was not automatic: It had to come into the laws of Canada. This was confirmed in 1952-53 with the accession of the Queen. We point out, for instance, that the Chief Justice of Canada and the Queen's Privy Council for Canada proclaimed Her Majesty as sovereign of Canada before she was proclaimed as sovereign in the United Kingdom. If the sovereign in the United Kingdom becomes the sovereign of Canada, the Chief Justice could not have issued that proclamation first. It would not make any sense. I do not suggest that the Chief Justice acted improperly in 1952 — quite the contrary.
Another less significant occasion, perhaps, was that in 1981 the Queen applied the Royal Marriages Act to Canada. With the marriage of the Prince of Wales to Diana, who became the Princess of Wales, in 1981 the Queen, under the Royal Marriages Act, proclaimed her consent to that marriage to the Queen's Privy Council for Canada, in addition to having proclaimed it to the Queen's Privy Council in the United Kingdom.
A point has been made about the Canadian Crown. The Canadian Crown has evolved from the Crown of Great Britain and Ireland that is referred to in the British North America or Constitution Act, 1867. There is no statute that has created the Canadian Crown. All the DNA, if you will, of the Crown of 1867 is in the Crown of Canada. The notion that the Crown referred to in 1867 means a Crown of the modern United Kingdom is not true for purposes of Canadian law. The Crown of Canada is the inheritor of the Crown of the United Kingdom referred to in the British North America Act and should be read that way.
Our problem is not with the bill itself but with the talking points and notes that have accompanied it. The United Kingdom bill that is being passed does not claim to apply or extend to Canada. Bill C-53, in itself, does not claim to extend the United Kingdom bill to Canada or to change the laws of succession for Canada, since in fact it does nothing. It provides a courtesy assent that was not legally necessary in 1936. There is no reason why it should not be given, but that in effect does not do anything in terms of the laws of succession. One might say that the bill may be passed as is because there is no harm and no foul. However, if the purpose of Parliament is to change the succession rules for Canada, then Bill C-53 also provides no goal.
To change the succession requires a domestic Canadian act. Whether that is an act of the Parliament of Canada or requires a constitutional amendment and the consent of the provinces, we agree, is open to debate. We think there is a strong case for provincial consent, but it is not definitive and absolute. It may well be that Parliament can act without provincial consent.
We have suggested that the one thing the assent of the Canadian Parliament in 1937 did do was create the Succession to the Throne Act in Canadian law as a Canadian statute, in addition to Britain extending it to Canada. Therefore, there is a mechanism that we would recommend, that Parliament amend the 1937 Succession to the Throne Act, which incorporates all of the laws of succession. Whether or not that would require a constitutional amendment we agree may not be the case and may be the way forward.
The Chair: Thank you, Mr. Toffoli.
We have about 20 minutes, so I encourage members and witnesses to be as concise as possible so we can accommodate as many senators as possible with their questions.
Senator Fraser: The 1937 act you are referring to is the act respecting alteration in the law touching the succession to the throne.
Mr. Toffoli: The 1937 act is the Succession to the Throne Act of Canada, which gave its assent to His Majesty's abdication in 1936.
Senator Fraser: It may not be the same one I am looking at. The one I am looking at was assented to by the Governor General on March 31, 1937, and is all about King Edward VIII.
Mr. Toffoli: That is right.
Senator Fraser: How would we go about amending that to meet your purposes here?
Mr. Toffoli: In Schedule 1 of the act, it put in the fact that descendants of Edward VIII are not able to succeed. That brings the point of succession into Canadian law. Then the three parts of Schedule 2 are brought into Canadian law. The first part deals with really the rule of primogeniture because it refers the next heir in line to the throne, who was George VI.
Senator Fraser: I know the chair will cut me off here.
Mr. Toffoli: I am suggesting that could be done by amending Schedule 2, the three parts referring to the Act of Settlement, the Royal Marriages Act and succession could be further amended to make the changes proposed.
The Chair: Keep going if you have another question.
Senator Fraser: I was trying so hard to follow your strictures about being brief.
The Chair: You are the only name on my list at the moment.
Senator Fraser: I was also in deference to my colleague. I can come back for a second round, if you have one.
Senator Joyal: The U.K. Parliament has the authority and is the master of the law of succession in Britain and the United Kingdom. Given the principle of symmetry in our Constitution, whoever happens to be the King or the Queen of the U.K. becomes the King or Queen of Canada. Therefore, is it your position that Bill C-53 would be redundant?
Mr. Toffoli: Our position would be that the latter part of your statement is not correct. Whoever is the sovereign of the United Kingdom is not automatically the sovereign of Canada.
For instance, had Parliament not extended the abdication of Edward VIII to Canada, he would have remained the King of Canada. It is not automatic. Our position is that Bill C-53 does nothing. We do not object to it in a sense. There are a couple of technical things that misquote the Constitution Act in the English, but aside from that, it does not actually change the succession. It is giving a sense, but it is not doing anything. We do not object to it.
Our point is if that is all we do, and then say Prince Harry marries a Catholic, he would be excluded from succession to the throne in Canada, even though he had not been excluded.
A more likely scenario is if the Duchess of Cambridge has a daughter this summer and then a son a year from now, the son will be the rightful King of Canada 50 years from now. We will not have to deal with it because we will probably all be dead when William and Catherine's son or daughter comes to the throne, but we will pass on a problem to future generations because we will not have changed the law in Canada simply by passing Bill C-53. We need to do more. We do not object to the bill, but we need to do more.
In 1936 we did two things: Parliament retroactively gave its assent, but it was not the assent of Parliament that changed the succession for Canada. It was the request and consent by the Canadian Privy Council asking the U.K. Parliament to extend the change into the law of Canada. That is what changed it for Canada, not the assent.
As I mentioned, no parliament gave its assent at the time. At the time New Zealand's Parliament was not sitting, South Africa said, "We do not need to do it," and Ireland did not want to do it. In Australia, they had an internal fight so only passed resolutions of the Senate and Commons. In Canada, Parliament was not sitting.
Assent is nice, but it does not do anything. You have to apply the law to the country in whichever way is appropriate. That is what New Zealand and Australia are doing this time. They are not just giving assent; they are changing the laws in their countries. I presume the other dominions will do that as well.
Senator Joyal: One would have to remember that section 4 of the Statute of Westminster was in force at that time.
Mr. Toffoli: That is correct.
Senator Joyal: As you know, it has not been applicable in Canada since 1982.
If Britain cannot legislate for Canada, then Canada must express some form of consent to changes or agreement to changes.
Mr. Toffoli: That would be by changing the domestic law, which is what New Zealand and Australia are doing. They are giving their assent by changing the law of New Zealand to conform with the law of the United Kingdom. They are giving their assent because they are changing the domestic law.
Our position is that because Parliament in 1936 brought a succession law into the law of Canada, this gives us a means. Whether one chooses to use that or to pass a new, completely separate act, this is up to Parliament. Canada must either pass an act of Parliament, if it is under the authority of Parliament alone; or a constitutional amendment, if in fact the provinces do have a say under section 41 to do this. Simply giving assent to the U.K. Parliament will not do it for any of the realms because none of them are under section 4 anymore. Any realm will have to do what their domestic law says.
Our most recent domestic law is the 1937 Succession to the Throne Act. We have an act that at least deals with it. We can work with that if you want to do so or create a new act. Parliament has a right to create a new act if they think it is too complicated to work with the 1937 act, but that law is the most recent. We have a law of succession in Canada, the 1937 act of succession. It is in the law. That is not theory. It was brought into part of the law of Canada by Parliament doing that.
Senator Joyal: Your position is that we should adopt a complete law of succession that would include the changes that are contemplated in the bill presently in front of Westminster?
Mr. Toffoli: Our position is that we believe, as was suggested by Mr. Justice Rouleau, that whether or not it is constitutional, prior to 1936 the succession law by inheritance was brought into Canada. If there is any doubt about that, in 1936 there was a specific act that did it. If it did not exist prior to 1936 as part of the law of Canada, it has existed since 1936 by bringing amendments to the Act of Settlement. Canadian law cannot amend the Act of Settlement if the Act of Settlement is not brought into Canadian law. The amendments to the Royal Marriages Act, the Act of Settlement and the rule of primogeniture in Canadian law were extended in 1936 by both the U.K. Parliament and the confirmatory act by the Canadian Parliament. We could not have amended them if we were not bringing them in. By amending the Act of Settlement for the purposes of Canada, we acknowledged that the Act of Settlement was brought into the law of Canada by the 1936 action of the U.K. Parliament. Our view is that it has been part of our law since 1936. We have the power and the right to amend it.
You are probably right that we cannot get the U.K. Parliament to do it anymore. We could have up to 1982, had the U.K. Parliament superseded the 1937 act. That cannot be done. Had that been done prior to 1982, it would be different. Now our position is that, if nothing else, we have got what was brought in back in 1936. We have to work with that and we can work with that. That is what Parliament should do.
Senator Joyal: What is your position in relation to the office of the Queen at section 41? Is it your position that the concurrence of the provinces is needed to adopt such legislation as the one that you are contemplating?
Mr. Toffoli: We think there is a strong case that it does. Our view is that it depends. If one uses the 1937 act, it was an act of the Parliament of Canada. We agree that is not directly or specifically part of the Constitution Act. Therefore, the question is: With the passage of the Constitution Act, 1982, was the Succession to the Throne Act in 1937 brought under the scrutiny of section 41(a)? We agree it is an open question. If the amending formula in the Constitution Act applies to particular Canadian statutes, then it would. The question really comes down to this: Does the 1937 act fall under section 44 of the Constitution Act for the amending formula or under section 41(a)? We are not certain about that. We think there is a strong case, because it does affect the provinces, that they might have that position. However, Parliament could proceed with an ordinary act of Parliament and if no province objects, that might be considered as giving concurrence or it may not be necessary for a constitutional amendment. Perhaps a resolution could be given from the provincial assembly saying that they have no objection to Parliament amending the 1937 act to alter the succession.
This is an interesting question in Australia. They are arguing that it is different in Australia. The Australian Parliament, the Commonwealth parliament, has asked the states to pass laws specifically allowing Parliament to do something that normally would require the states as well. We do not have that provision, but they are doing that. The State of Queensland has objected and is passing its own legislation to bring the law into effect in Queensland. They are in a constitutional row in Australia over how to apply it. The only one that is straightforward right now is New Zealand because they are a unitary state.
Mr. Benoit: As part of this debate about whether or not the provinces should be involved, it seems to me that part of the Constitution Act, 1982, which deals with the amending formula in citing the office of the Queen, speaks of "related" to the office of the Queen — and I point out that "chargé" in French has a slightly narrower connotation than the "office of the Queen."
I would make this analogy. In the international trade area, when you talk about access to a market, a market is certainly determined and affected by the access that one has to it. In a way, what we are contemplating substantively here is a liberalization of access to an office. It is the central office. It is the office that we all recognize. It is at the heart of our Constitution. Essentially, it boils down to a liberalization of access to an office. Over time Parliament has decided, through a number of acts, to restrict that access. Now there is a tidal change to perhaps liberalizing that access, which all the heads of government of the Commonwealth realms have agreed to. That is what we are doing. In liberalizing access to the office, to my mind it certainly affects that office, and the analogies are common throughout other areas of international law.
That is just part of this secondary debate that one can have about the extent to which the provinces are involved or not. However, the main point is that we have to do something else beyond just assenting. I agree that you assent to a statement that someone else is making. I assent to it. Consent, as an age of consent, implies a whole maturation and self-determination. We have not been through the process of consent yet. Since 1982 we have established a formula for going through that process, which we have to confront now.
Mr. Toffoli: In terms of the office of the Queen, I should clarify the mention I made that Bill C-53 misquotes the Constitution. Having thrown that hand grenade out, I suppose I should clarify. The English preamble states, "Whereas the Constitution Act, 1867 provides that the executive government and authority of and over Canada is vested in Her Majesty the Queen". The French text has it correct — "declaré." The Constitution Act does not provide; it declares the authority. That is an important concept. Section 9 and section 15, which deals with the command of the militia, are explicit. They are declaratory sections. The Constitution did not grant the Queen authority. The authority of the Constitution comes from the Queen. The words missing in the Constitution Act are "declared to continue and be vested." The concept was that it is a declaratory statement and there was no new Queen created. The authority of the Queen or the office of the Queen, or however you want to define it, came from before Confederation and continued into it. The English and French are both incorrect by leaving out the word "continue." The English is incorrect by saying "provides" when it should be "declared" as in the French "declaré." That is our concern. It is a misunderstanding of the status of the Crown.
This goes to our point about how the Crown has evolved. No new Crown was created by the BNA Act. It is the Crown that existed before the BNA Act. At that time it was thought of as one Crown and it has now multiplied into several Crowns, as the preamble suggests. The several Crowns are not creations of the one Crown. The BNA Act says Canada is under the sovereignty of the Crown of the United Kingdom, not the Crown of Canada is under the sovereignty. That is why our contention is that there is no Crown of the United Kingdom and Ireland today. There is no such kingdom. That Crown evolved. If you believe it became the Crown of the United Kingdom of Great Britain and Northern Ireland, then it could become, as it did, the Crown of Canada. That is why our contention is you do not read that as meaning Canada is under U.K. laws of the U.K. Crown. There is a Crown of Canada, but it came out of that Crown; it was not a new creation. It is sort of like the Crown of 1867 is like our grandparents who may be dead or our great-grandparents who may be dead. We are cousins. We are all the inheritors of that. We are each independent of one another, but we carry the DNA of our ancestors. That Crown is gone; it does not exist. You cannot refer to that. You have to refer to the modern Crowns.
Senator Joyal: I would be tempted to concur because the English text of section 9 of the Constitution is pretty clear:
The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.
In the French text, because it helps sometimes, as Mr. Benoit has mentioned with the office:
À la Reine continueront d'être et sont par la présente attribués le gouvernement et le pouvoir exécutifs du Canada.
It means that it pre-existed the Constitution.
Mr. Toffoli: Exactly. This is not just a linguistic thing. If you go to section 17 of the Constitution Act, 1867, it creates the Parliament. Because the Parliament of Canada is a new creation, it did not "continue." The language changes in section 17. It becomes, "There shall be One Parliament for Canada, consisting of the Queen . . . the Senate, and the House of Commons." So the language's executive authority is "declaratory," dealing with it. It is not "provided." The legislation is creating the legislative body.
Senator Joyal: We did not draft Bill C-53, as you know. We received it from the other place the way it is. In the other place they did not study it. They did not think it was important enough for them to consider it for at least 10 minutes. However, that is another issue.
I want to withdraw my statement, Mr. Chair.
Why do you think the constituents in 1982 did not include the law of succession in the schedule of the Constitution?
Mr. Toffoli: I am not sure. It may be that no one thought about it, to be quite frank. That is always a possible explanation. They may have also thought that it did not need to be included because it was brought in in 1936.
I mentioned that there were the four different reasons, and maybe this would answer that question. In 1936, Australia and New Zealand had not passed section 10 of the Statute of Westminster, which implemented section 4 for them, so they were not covered by section 4. Therefore, when the law of succession was changed by the U.K. Parliament, it automatically applied to Australia and New Zealand in 1936, because they did not have the independence that Canada did. They passed those sections in 1942 and 1947. When Australia and New Zealand then passed the equivalent of our Constitution Act, 1982, they actually did put things in that provided for the succession law to be extended to them because that had never happened in 1936.
When I look at the two, that is my explanation. In our case, we did it in 1936, so we did not have to do it in 1982. Australia and New Zealand had not done it in 1936; therefore, they had to do it before they could remove section 4, or else they would have been in a situation where they had no way of dealing with this.
The fact that they did it then, I think that is the answer, or at least that is the effect. Whether that was the intent, the effect is that we did it in 1936. It was not necessary do it in 1982. Whether or not that was the reason it was not done, it was not necessary to do it in 1982 for Canada because we had already done it.
Senator Fraser: My question was answered. I was going to ask about the provinces.
The Chair: We have reached our time limit. Gentlemen, thank you very much for a most interesting presentation. We appreciate your assistance in our deliberations.
I remind members of the steering committee that we will have a brief meeting following the conclusion of this meeting.
(The committee adjourned.)