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On February 16, 2016, the Quebec Superior Court upheld the Succession to the Throne Act, 2013, an Act of the federal Parliament that gave Canada’s assent to an Act before the Parliament of the United Kingdom that changed the rules of succession for the British monarchy such that the system of male preference primogeniture under which a younger son could displace an elder daughter in the line of succession was to be ended and also such that the rule that rendered anyone who married a Catholic became ineligible to succeed to the Crown was similarly removed. In Motard v. Procureur general du Canada et al., 2016 QCCS 588, Justice Claude Bouchard examined the question as to whether the amendments to the royal succession, and Canada’s assent to them, were changes to Canada’s constitution and, if so, whether Part V of the Constitution Act, 1982 was therefore engaged.

The judgment is fascinating, reviewing the history of the royal succession rules back to the Bill of Rights of 1689 that established William and Mary as King and Queen and limited the succession to their heirs with the proviso that, if their heir was Catholic or married a Catholic, their heir would be ineligible to succeed to the throne.

I recommend reading the judgment to all (I note that it is principally in French except for its reproductions of English texts). Not only does Justice Bouchard do a masterful job of reviewing the history of royal succession (including a most interesting discussion of the constitutional crisis caused by Edward VIII’s abdication and the succession of his brother George V both in the United Kingdom but also (and most importantly) here in Canada), but his analysis of the law and the legal arguments posed by the various parties and interveners is exceptional.

Justice Bouchard concluded that Canada is a constitutional monarchy in which the constitutional principle of symmetry is such that the King or Queen of Canada is the King or Queen of the United Kingdom. He determined that this principle was not modified by the Statute of Westminster, 1931 but rather that that statute simply created a constitutional convention pursuant to which the Parliament of the United Kingdom still retained the power to modify the rules of succession but would exercise those powers after seeking the assent of the other member countries of the Commonwealth (including Canada). He held that the rules of succession themselves are not part of the Constitution of Canada and therefore not subject to the Part V procedures of the Constitution Act, 1982. The learned justice ruled that the change in the rules of succession in the United Kingdom did not constitute a change to the “office of the Queen” which would require a formal constitutional amendment under Part V.

I would like to thank my friend Greg Tardi for alerting me to this decision.

I remain

Constitutionally yours,

Arthur Grant