More is needed to change the rules of succession for Canada.

• Author: Toffoli, Garry
• Position: Report

This article argues that, since the 1931 Statute of Westminster, Canada has developed its own distinct process for amending its constitution. Altering the rules of succession to the Throne, which are fundamental to our constitution, are part of that process. The Succession to the Throne Act, 2013, is an important first step, but one that does not satisfy our current constitutional requirements.

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The intent behind the Succession to the Throne Act, 2013, passed by the Parliament of Canada is not at issue. Canadians generally agree with the citizens of the Queen's other realms in supporting the changes to the laws of succession, hence the unanimous support in the House of Commons and the Senate.

The problem with the act is not what it does but what it does not do. While it gives moral support to the Parliament of the United Kingdom, its assent is not legally necessary for the British Parliament to change the laws of succession for the United Kingdom, and its assent to a British act does not actually change the laws of succession for Canada. So the act is an acceptable first step as it confirms that Canada agrees with the changes, but more needs to be done.

The assumptions that this act is all that is necessary are:

(1) that it follows the precedents of 1937, 1947 and 1953;

(2) that, although the Act asserts in its preamble (1) that the Crown of Canada is separate from the Crown of the United Kingdom, the Government claims that the monarch of the United Kingdom is automatically the monarch of Canada by virtue of the preamble to the Constitution Act, 1867;

(3) that there is no law of succession for Canada;

(4) because of the first three, changes to the laws of succession are determined solely by United Kingdom legislation.

None of these assumptions are supported by the facts of Canadian history, constitutional development or law. It should be noted that of the four oldest and major realms of the Queen, three (the United Kingdom, Australia and New Zealand) have determined that they must change their domestic laws. Canada is the odd country out.

Let us consider the "precedents" of 1937, 1947 and 1953. Instead of following what happened in those years, the Succession to the Throne Act, 2013 is fundamentally different because it gives assent to an act of the Parliament of the United Kingdom which it acknowledges does not extend to Canada.

When King Edward VIII abdicated in 1936 the Canadian Government passed an order-in-council requesting and consenting that the United Kingdom Parliament extend its legislation into the laws of Canada, a power held by Westminster at the time but repealed in 1982. Otherwise the abdication would not have applied to Canada. (2) Therefore, when the Canadian Parliament passed the Succession to the Throne Act, 1937 it did not merely assent to the passage of the British act. It complemented and confirmed the original...