Was noodling around on Wikipedia and found an interesting section on Canada’s political evolution in the “Dominion” article: Canadian Confederation and the evolution of the term Dominion. Too long to quote here, but a couple of interesting passages by academic writers:
[QUOTE=Andrew Heard]
What is remarkable about this whole process is that it was achieved with a minimum of legislative amendments. Much of Canada’s independence arose from the development of new political arrangements, many of which have been absorbed into judicial decisions interpreting the constitution—with or without explicit recognition. Canada’s passage from being an integral part of the British Empire to being an independent member of the Commonwealth richly illustrates the way in which fundamental constitutional rules have evolved through the interaction of constitutional convention, international law, and municipal statute and case law.
[/QUOTE]
[QUOTE=F.H. Buckley]
[Canada’s] example of a peaceful accession to independence with a Westminster system of government came to be followed by 50 countries with a combined population of more than 2-billion people.
[/QUOTE]
You probably know that I’m just spitballing here, but wouldn’t male preference primogeniture be a violation of the Charter (the Canadian version of the Bill of Rights) under the theory that a female who would otherwise ascend to the throne is being denied her right/privilege solely on the basis of gender?
Fair question, but no, because the Crown is part of the Canadian Constitution, and that includes the definition of who is eligible to inherit the Crown. It’s not possible to use one part of the Constitution to challenge another part of the Constitution.
Along the same lines, the Ontario Court of Appeal dismissed a Charter challenge to the requirement that Roman Catholics are barred from the throne on this basis a few years ago (also dismissed it on lack of standing):
[QUOTE=Ontario Court of Appeal]
“The rules of succession are a part of the fabric of the constitution of Canada and incorporated into it and therefore cannot be trumped or amended by the charter, and Mr. Teskey does not have any personal interest in the issue raised (other than being a member of the Roman Catholic faith) and does not meet the test for public interest standing,” the Appeal Court wrote in its decision.
[/QUOTE]
To give an American comparison, a Californian can’t challenge Wyoming’s two senators on equal protection grounds: the Constitution gives Wyoming two senators regardless of comparative populations of the states, so it cannot be an equal protection violation.
[QUOTE=The opinion]
“The rules of succession are a part of the fabric of the constitution of Canada and incorporated into it and therefore cannot be trumped or amended by the charter, and Mr. Teskey does not have any personal interest in the issue raised (other than being a member of the Roman Catholic faith) and does not meet the test for public interest standing,” the Appeal Court wrote in its decision.
[/QUOTE]
Emphasis Added.
Interesting. So how can male preference primogeniture be changed? If the rules of succession may not be changed, even by an amendment to the charter, how could a mere law eliminate it?
The language of “can’t be amended by the Charter” dates back to one of the earlier Charter cases, where it was alleged that the enactment of the Charter had implicitly limited another provision of the Constitution, relating to religious schools. The Supreme Court declined to accept that the Charter had impliedly repealed or amended another part of the Constitution; explicit amendment was needed. Hence the phrase, “the Charter doesn’t amend another part of the Constitution”.
The Charter isn’t the part of the Constitution that contains the amending formula; that’s found in the Constitution Act, 1982. So it is certainly possible for the federal government and the provinces, acting together, to change the “office of the Queen”, but unanimous consent is required, as Really Not All that Bright points out.
The issue that is being litigated is whether a change to the succession is a change to the “office of the Queen”, which would require unanimous consent, not just a federal statute? or is a change to the succession part of the constitution that can be amended by the federal Parliament only, under the Statute of Westminster 1931, which requires that the Commonwealth realms have to consent to a change to the succession?
The only precedent is the abdication crisis: the federal Parliament there passed a statute, consenting to the change in the succession caused by the British Abdication Act. The federal Parliament presumably acted under the Statute of Westminster and the “peace, order and good government” clause of its legislative powers.
No-one at the time questioned whether the federal Parliament could unilaterally accept the change to the succession on behalf of Canada, but the issue has now arisen, in light of the 1982 amending formula, which has the unanimity requirement for changes to the “office of the Queen.”
It is arguable that a change to the succession doesn’t affect the “office of the Queen”, because the powers of the Crown don’t change depending on who sits on the throne, and certainly not with the gender of the monarch: Queen Elizabeth has the same powers under the Canadian Constitution as King George had. Whether the Crown goes to the first-born male, or the first-born child, is irrelevant to the constitutional powers of the Crown, which may suggest that a change to the succession is not a change to the “office of the Queen”.
So, if I understand correctly, Supreme Law in Canada is: 1) The Constitution, 2) The Charter and then 3) ordinary statute, whereas in the United States, it would be #1 and then #3?
I understand that the “notwithstanding clause” allows a mere statute to override the charter, but I assume that it could never override the Constitution?
Further, the Constitution may only be amended by unanimous consent of the federal government and the provinces, but the charter can be amended by some lesser formula?
Canada did not inherit parliamentary supremacy from the UK? It is my understanding that the UK Parliament could mandate child sex slavery tomorrow and such a thing would be the law with no judicial review. Not in Canada?
No, the Charter is part of the Constitution and therefore part of the supreme law. The Constitution must be interpreted harmoniously as a complete document, so one part of the Constitution cannot supercede or repeal another part, unless it is a constitutional amendment under the amending formula.
The notwithstanding clause allows an override of specific provisions of the Charter, and the Charter is part of the Constitution, so yes, it does allow a statutory override of parts of the Constitution. It does not allow an override of the rest of the Charter, nor of any other part of the Constitution.
Some parts of the Constitution need unanimous consent to amend, such as the guarantee that each province has a minimum number of seats in the House of Commons, the offices of the Queen, GovGen and LtGovs, the composition of the Supreme Court, and the equal status of English and French at the federal level. Since there are guarantees of English and French at the federal level in the Charter, that means that some parts of the Charter can only be amended by unanimous consent.
Other parts of the Constitution, for example the division of legislative authority between Parliament and the provinces, and most of the Charter, can only be amended by the consent of the federal government and 7/10 of the provinces, together having at least 50% of the national population.
Other constitutional provisions that protect rights but only apply to one or more provinces, but not all can only be amended by the province(s) in question and the federal government acting together. Some of the guarantees of rights in the provincial constitutions would come into this category, as well as language rights and alterations to provincial boundaries.
The federal Parliament can unilaterally amend certain parts of the Constitution which only apply to the federal government, for example, the number of seats in the Commons (subject to the guarantee of a minimum number of seats for each province, mentioned above).
Each province can unilaterally amend certain parts of the Constitution which only apply to that province, such as the composition of each province’s Legislative Assembly.
From 1867 onwards, there has always been judicial review of the powers of the federal Parliament and the provinces, to ensure each stay within their assigned legislative powers. However, if a matter was within the constitutional authority of the Parliament or the provincial Legislatures, the courts could not review it further, and the principle of parliamentary supremacy applied.
Since 1982, with the enactment of the Charter, there is now judicial review based on the individual rights set out in the Charter, for the actions of both the federal government and the provinces.
Thank you Northern Piper for your fascinating and very clear explanations of all this stuff.
Ref the snippet above I have one side question.
It seems shortsighted to have an “office of the Queen” rather than an “office of the Monarch” enshrined in your Constitution / Charter. If one had to bet on the gender of the next 5 monarchs = 200ish years, one would assume males would predominate. Not that they should as a matter of divine right, but that they’re likely to as a matter of ancient tradition as codified in the current succession law you’ve done so much to explain.
I’m a bit surprised the apparently sensible folks in charge in your fine country missed that. Or maybe it was a mighty and subversive blow for female primogeniture.
It’s standard legislative drafting in Canada to refer to the current holder of the throne in that way, so other statutes passed between Victoria and Elizabeth would refer to the King. It’s understood that a reference to the Queen includes a King, and a reference to the King includes then Queen.
