Mamadosewin (meeting place, walking together)

Laws of Succession

Laws of Succession

Laws of Succession

Laws of Succession

Published on 17 February 2016 Hansard and Statements by Senator Serge Joyal

Hon. Serge Joyal:

Honourable senators, yesterday the Honourable Claude Bouchard from the Superior Court of Quebec in Quebec City released his judgment in a case that is of particular interest to the Senate as a whole.

Senators will remember that three years ago, in March 2013, we adopted a bill introduced by the government at the time that expressed Parliament’s consent to changes to the British Succession to the Throne Act. Those changes aimed to abolish the male preference in the line of succession and to allow the sovereign to marry a Catholic without being barred from ascending to the throne. Those changes were endorsed by all 16 Commonwealth countries that have Queen Elizabeth II as a monarch.

Following the adoption of that act by Parliament, two constitutional law professors from Laval University contested the validity of the legislation, arguing that this would be a change to the “Office of the Queen,” as provided in section 41 of the Constitution and, as such, required the concurrence of the 10 provincial legislatures. This is what we call the unanimity formula of amendment to the Constitution, which is the highest level of consent and, needless to say, the most difficult one.

The issue potentially had a lot of consequences for the status of constitutional monarchy in Canada. If the petitioners were right in their allegations, any province refusing to concur with the changes would prevent the maintenance of the similarity of the identity of the person entitled to wear à la fois, the British Crown, and the Canadian Crown. This means that the Canadian monarch could potentially be a different person than the reigning monarch in the United Kingdom.

I was personally convinced that the federal Parliament alone was competent in expressing its consent to the changes to the British laws of succession. That is why I personally decided to seek authorization from the Superior Court of Quebec to intervene formally in support of the government and of our legislation. I tabled a brief, pleaded in person in court over the course of an entire week last June, and provided additional written arguments last fall.

For the sake of transparency, let me say that I personally assumed the costs of those interventions in court.

The Attorney General of Quebec intervened in support of the professors challenging the law, and quite astonishingly so did the Canadian Royal Heritage Trust.

The Attorney General of Canada was the defendant, and I sided with him. There were 11 lawyers in court, arguing on various grounds. I am proud to report that the court recognized clearly that changes to the laws of succession to the Throne that affect Canada are the sole purview of the federal Parliament.

A final note that will be of interest to my colleague and dear friend Senator Baker, let me remind you that the Senate was the only house of Parliament that debated and studied that bill, sent it to the Standing Senate Committee on Legal and Constitutional Affairs, and heard and questioned expert witnesses. Some of that testimony was quoted at length in the judgment, as well as excerpts from my own brief.

Honourable senators, it is extremely important for the Senate to exercise its full responsibility to review legislation and to provide sober second thought, even though at first sight a bill may seem innocuous and receive no interest in the other place.

I am personally grateful to all the honourable senators who expressed their support for me in defending this case.

Thank you, honourable senators.

Hon. Senators: Hear, hear!