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What comes after the Supreme Court ruling on Royal Succession?

4/27/2020

 
PictureBadge of the Supreme Court of Canada
Last Thursday the Supreme Court 
of Canada upheld a ruling by the 
Quebec Court of Appeal on the 2013
Succession to the Throne Act. The 
decision upholds the act as being 
constitutional. Without getting too 
far into the legal arguments the 
point of contention was whether 
changes to royal succession require 
an act of the federal parliament or 
the consent of every province in Canada. This ruling upheld 
the first interpretation. Monarchists were divided over this 
question with the Monarchist League of Canada supporting 
the ruling and the Canadian Royal Heritage Trust joining the
challenge to the act. While there were valid concerns on
both sides, today I'm more interested in what this means for 
​the future.

PictureThe Queen and her heirs
The good news is that no matter which
way the courts had ruled the succession
would not be affected in the near future.
The bad news, in the view of some
monarchists, is that changes to the
succession potentially don't need the
consent of the provinces and may only
need the federal parliament to pass the
​necessary acts. This situation ultimately
came about because Canada doesn't
have a succession law and from the way
in which the Canadian Crown split off
from the British Crown. In place of a
succession law we have a 'principle of symmetry' where the
monarch of Britain is also the monarch of Canada. This of
course raises the question of what happens if Britain abolishes
their monarchy? I have mentioned before that similar laziness
resulted in Canada not having a regency act.

Some monarchists are uncomfortable with the possibility the
federal parliament could change the succession on its own.
This is because while republicans taking over the House of
Commons is, in practice, difficult but republicans taking every
parliament and legislature is, in practice, impossible. And
when it comes to protecting the monarchy making it
impossible to attack is preferable for many monarchists to
making it difficult to attack.

But I'd argue this is a tad unhistorical. Ever since the Glorious Revolution the principle in the UK has been that parliament
ultimately decides who the monarch is. This was a rejection of
the idea that the succession was divinely immutable. Canada
meanwhile has come to a place where succession to the throne
is no longer constitutionally immutable. It is a tad
uncomfortable but it does present a potential course of action
that can be taken now that could not before. The ruling seems
to suggest that the Canadian Parliament could pass both a
succession law and a regency act on its own. Both would be
welcome laws to have. We can only put off passing key laws
in this country for so long before we end up in a crisis and
being a bit more proactive would be a good thing.

Loyally Yours,
A Kisaragi Colour

A Misguided Legal Challenge, A Stubborn Prime Minister, And The Governor General Stuck In The Middle 

8/1/2015

 
PictureGovernor General David Johnston
If you've been paying attention
to national news at all over the
last few years you'd know the
Canadian Senate is currently
stuck in a never-ending scandal
regarding expenses. The scandal
has produced a number of
possible remedies. Prime
Minister Stephen Harper upped
the ante last week by saying he
would not appoint anymore
senators in an effort to try and
bring the provinces to the table
(their support being needed if
the Upper Chamber is to be
changed in any meaningful way).
Given how much the Senate Scandal has burned the Prime
Minister I can't imagine he is in any hurry to appoint anyone
else to that body. However, this strategy is already being
challenged in court by Aniz Alani, a BC lawyer. He is
seeking to get the courts to rule on whether the Prime
Minister is constitutionally required to name senators or not.

So what does the constitution say on the matter? Section 24
states that "The Governor General shall from Time to Time,
in the Queen’s Name, by Instrument under the Great Seal of
Canada, summon qualified Persons to the Senate; and,
subject to the Provisions of this Act, every Person so
summoned shall become and be a Member of the Senate and
a Senator." Note that the constitution refers only to the
Governor General, not the Prime Minister. This is a vital fact
being lost in the whole story. Mr. Alani's court challenge
focuses on whether the Prime Minister has to render advice to
the Governor General. However, this advice is a convention,
not a law or legal precedent. And as any student of Canadian
law will tell you the courts don't rule on conventions. So it
would appear that the main thrust of the court challenge will
fail. The courts may weigh in on another issue though. The
courts may well state that the Governor General must make
appointments to the Senate. This would be in line with what
the constitution actually says. The courts have already stated
that the Senate cannot be allowed to simply whither away 
through non-appointment. Another ruling would cement this
principle.
Picture
So where would this leave us? If the Prime
Minister still refuses to advise the Governor
General we may witness the rarest of political
birds: the death of a convention. Governor
General David Johnston would be the one in the 
position of having to create a new rule for Senate
appointments. Normally, when the Governor
General has to act outside of established convention it either
provokes, or is caused by, a constitutional crisis. In this case
the sheer unpopularity of the Senate and the slow pace of
Senate appointments gives His Excellency some breathing
room to find a solution. Here is how it would possibly go:

Picture
The Governor General tries to convince the Prime
Minister to reconsider and give him names. He might
even mention that by long tradition he has a Right to be
Consulted. His Excellency could warn the Prime Minister that
his actions were set to trigger a constitutional crisis. And His
Excellency could encourage the Prime Minister to appoint
new senators (hopefully men & women of higher moral fibre).
In short, the Governor General would make use of Bagehot's
Three Rights of the Crown.

Picture
If Prime Minister Stephen Harper still refused to
appoint senators the Governor General may decide to
wait him out. Perhaps the next Prime Minister would be
willing to advise the Crown on this matter. This strategy has
two flaws though. 1. The party most likely to take over from
the governing Conservatives doesn't want to appoint senators
either (for that matter they don't want the Senate to exist). 2.
The Governor General can't delay on this matter forever. They
may have to do something before a more cooperative Head of
Government appears.

Picture
With all options for maintaining the current convention
exhausted the Governor General (and it may not even be
David Johnston at this point) would have to act on their own.
They could act on their own accord in making appointments
but this is unlikely. A non-elected official appointed members
of an unelected chamber no one likes would cause too much
damage to the vice-regal office. It may even damage the
monarchy. Any occupant of the Governor General's office who
respects said office would shy away from this option. And this
is assuming the newly-appointed senators were high quality.
If they were caught misusing public funds the damage would
be magnified. There is no political 'victory' with senate
appointments. The Governor General would need a different
strategy.

Picture
The Governor General could request Parliament render
advice on senate appointments. However, with two of
Canada's main parties opposing senate appointments this
may not work. If not the last foreseeable resort would be to
ask the provincial premiers for advice. There is one last option
that might be open to the Governor General but I will leave
that to another article.

His Excellency's job may well be about to become quite a bit
more interesting. All because of an upstart lawyer, a stubborn
prime minister, and a scandal-plagued senate.

Loyally Yours,
A Kisaragi Colour

Supreme Court Will Not Hear Appeal Regarding Canada's Citizenship Oath

2/27/2015

 
The Supreme Court delivered the final blow against an effort by three republicans to strike down Canada's citizenship oath as being unconstitutional. The Supreme Court has decided not to hear an appeal of the ruling delivered by the Ontario Superior Court of Justice. As per tradition the Supreme Court did not give their reasons for denying the application. Below is the summary from the Supreme Court of Canada website:
36120


Michael McAteer, et al. v. Attorney General of Canada

Charter of Rights – Freedom of expression – Freedom of religion – Freedom of conscience – Right to equality – Citizenship – Legislation – Interpretation – Does a statutory requirement that compels a ceremonial oath or pledge have the purpose of “controlling expression” – Does this Court’s Amselem test apply to a freedom of conscience claim and, if so, how – What evidence or rationale does the government need to constitutionally justify its requirement for a ceremonial oath or pledge – Citizenship Act, R.S.C. 1985, c. C-29, ss. 3(1)(c) and 12(3) – Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47.

The three applicants are permanent residents of Canada. Although they wish to become Canadian citizens, they each object to the statutory requirement under the Citizenship Act to take an oath of allegiance to the Queen. Michael McAteer emigrated from Ireland and argues taking the oath would be a betrayal of his republican heritage and impede his activities in support of ending the Canadian monarchy. Simone Topey emigrated from Jamaica and claims that it would violate her religious beliefs as a Rastafarian to make an oath to the person who is the head of Babylon. Dror Bar-Natan emigrated from Israel and argued that it would violate his belief in equality of all persons to swear allegiance to a symbol of inequality where some must bow to others for reasons of ancestry. They seek a declaration that an oath requiring them to bear true allegiance to “Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors” violates their rights under sections 2(a), (b) and 15(1) of the Charter and are not saved by s. 1.

The Ontario Superior Court of Justice dismissed the application, holding: i) there was no violation of sections 2(a) and 15(1) of the Charter; ii) the oath was a form of compelled speech that prima facie violates s. 2(b) Charter rights; and iii) the violation was justified under s. 1 of the Charter. The Court of Appeal for Ontario dismissed the applicants’ appeal but allowed the respondent’s cross-appeal and set aside that part of the lower court judgment holding that the oath violates s. 2(b) of the Charter.

The Supreme Court is right to reject this appeal. The legality
of the oath has already been affirmed. Beginning in 1994
Charles Roach attempted to argue the oath violated sections
2(b), 2(d), and 15 of the Canadian Charter of Rights and
Freedoms. This latest attempt (starting in 2012) differs only
in the addition of a challenge based on section 2(a) of the
Charter (Freedom of Conscience). It would appear that
appealing to the Charter a piece at a time is not an effective
strategy for republicans. I somehow doubt this is the last
we've seen of particular waste of taxpayers money however.

It should be remembered that the Canadian Citizenship oath
is reciprocal with the Queen's Coronation Oath. The
Citizenship Oath provides that the new citizen "will be faithful
and bear true allegiance to Her Majesty Queen Elizabeth II,

Queen of Canada, Her Heirs and Successors..." and that they will "faithfully observe the laws of Canada and fulfill my
duties as a Canadian citizen." In return Her Majesty
promises in her Coronation Oath "to govern the Peoples of
Canada according to their respective laws and customs." As
long as one side of this arrangement carries out their duties
the other side is obligated to as well. It is an
acknowledgement that the state (personified by the monarch)
cannot act in an arbitrary manner. And that the state and the
citizen are in a direct, mutual relationship. There is a
sublime equality in that I feel.

Loyally Yours,
A Kisaragi Colour

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    This website is intended to be a resource for those arguing in favour of Canada's monarchy, researching Canada's royal past, or wondering what the various vice-regal representatives of the Canadian Crown are up to currently. As well, articles about other monarchies may appear from time to time. 

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