Succession to the Throne Act, 2013

"[3] On 28 October 2011, at the Commonwealth Heads of Government Meeting held in Perth, Western Australia, the heads of government of the 16 Commonwealth realms announced that they would introduce legislation to end the primacy of males over females and the disqualification of persons married to Catholic spouses in the succession to the Crown.

[4] In a letter to the other realms' heads of government, prior to the Perth Agreement, British Prime Minister David Cameron additionally proposed to limit the requirement to obtain the monarch's permission to marry to the first six people in line to the throne.

[5] Harper stated in October 2011 that, "at some point, we will table legislation in the House of Commons and it would be my hope that that would be approved quickly."

[17][18] There, on 20 and 21 March, the committee heard from Associate Professor Andrew Heard of Simon Fraser University; Professor of Law Benoît Pelletier, from the University of Ottawa; Vice-Chairman Paul Benoit and Executive Director Garry Toffoli of the Canadian Royal Heritage Trust;[19] Rob Nicholson; Karen Audcent, Donald Piragoff, and Warren Newman from the Department of Justice; and Joe Wild, Assistant Secretary to the Cabinet.

[2] The act was brought into force by order-in-council by the Governor General on 26 March 2015,[24] the same day as the other Commonwealth realms that required their own legislation.

Neither the ban on the marriages of heirs to Roman Catholics, nor the common law governing male preference primogeniture, can properly be said to be royal powers or prerogatives in Canada.

[30] Another ruling of the Ontario Superior Court, in 2014, echoed the 2003 case, stating that the Act of Settlement "is an imperial statute which ultimately became part of the law of Canada.

[32] Under section 41 of the Constitution Act, 1982, changes to the office of the monarch require unanimous consent of all the provinces and the federal Parliament.

[37] The precedent in question does not specify whether non-unilateral alterations to the rules of succession would also be considered a fundamental change in the office of Queen, requiring a constitutional amendment under the unanimous consent procedure.

The only response came from Andrew Swan, Manitoba's attorney general, who stated in a letter dated 6 March 2013 that, although the Government of Manitoba held no opposition to the proposed changes themselves, "alterations to the constitutional and legal framework of our nation require consultation with and participation by provinces and territories that is timely and meaningful" and stressed that the way in which Bill C-53 was proceeding would not be considered "a precedent for the process to be followed should other circumstances arise in the future.

"[38] Aside from the Minister of Justice, there were three presentations made to the Standing Senate Committee on Legal and Constitutional Affairs regarding Bill C-53.

Gary Toffoli and Paul Benoit of the Canadian Royal Heritage Trust outlined how the British and Canadian governments agreed during the abdication crisis in 1936 that whoever is monarch of the UK is not automatically monarch of Canada and, thus, the alteration of the succession in Britain by British law would not extend to Canada without the latter's request and consent that it do so.

[39][42] He claimed the Canadian Parliament could possibly alter Canada's succession laws simply by amending Schedule 2 of the 1937 act.

[51] Following the passage of the bill through Parliament, Lee Ward, an associate professor of Political Science at the University of Regina, wrote that the government's proposed method of altering the line of succession in Canada dissolved "the decades-old notion that the British Crown and Canadian Crown are separate legal entities, as Canada's government concedes that the British Parliament will decide in the 21st century who will be our head of state", thereby possibly "requir[ing] radical reconsideration of the position of the monarchy in the Canadian constitution".

Ward did, however, acknowledge the political desire to avoid embarking on amending the constitution with Canadian law, which would require the approval of all the provinces.

[56] In the hearing of an application to the Ontario Superior Court of Justice, presented on 7 March 2013, Bryan Teskey argued that the Succession to the Throne Act, 2013. was unconstitutional, being in violation both of section 2 of the Canada Act, 1982 (as it endeavoured to allow a British law to have force in Canada), and of section 15 of the Charter of Rights and Freedoms (as it assented to a law that does not eliminate the prohibition of Roman Catholics from the royal line of succession).

[31][57][58] Citing the earlier Ontario Superior Court case O'Donohue v Canada, in which section II of the Act of Settlement was challenged, Justice Charles Hackland on 9 August dismissed Teskey's case, stating the rules of succession are both a part of the constitutional law of Canada, and thus cannot be invalidated by another part of the constitution (the charter), and beyond the review of the court.

[60][61] On 7 June 2013, two professors from Laval University, Geneviève Motard and Patrick Taillon,[62] reported as representing a group with "a broad spectrum of political views in Quebec: some sovereigntist, some federalist, some supportive of the monarchy and others with more republican views",[63] filed a motion with the Superior Court of Quebec asking for the Succession to the Throne Act, 2013, to be ruled unconstitutional.

It stated that its aim was not to contest the political decision to amend the rules regarding the designation of the head of state, but instead argued the act endeavours to amend the constitution—specifically the parts designating "the head of state of both federal and provincial orders of government"[62]—but its enactment did not follow the constitutional amending formula set out in section 41 of the Constitution Act, 1982; if the act does not amend the constitution, it is in violation of the Canadian Charter of Rights and Freedoms because it assents to a bill that does not repeal those provisions of the Act of Settlement disallowing Roman Catholics from becoming monarch of Canada; and it also approves of a British bill not written in both French and English, as required of Canadian legislation by the constitution.

[65] In May 2015, Motard and Taillon's lawyer asserted that the federal government's position is that "British law applies automatically in Canada", which he described as "colonial".

[77] On 23 April 2020, the Supreme Court of Canada declined the application for leave to appeal, bringing the matter to a close.

[78][79] Twomey in 2017 wrote, "from an outsider's perspective, [the Canadian government's approach] looks like a stark case of short-term political pragmatism taking priority over fundamental constitutional principle", done to avoid the question of whether changes to the rules of royal succession affect the office of the monarch in order to avoid any need to obtain approval from the parliament of Quebec.

"[80] She also took issue with Bouchard's ruling, arguing five points: 1) It did not address whether statutes that expressly stated they applied to Britain's colonies are part of the laws (as opposed to the constitution) of Canada.

[81] Warren J. Newman asserted that, "far from 'de-Canadianizing' the Crown, 'de-patriating' the Canadian constitution, or retreating from the implications of Canada's independence as a sovereign state, as some of its detractors have claimed, the Succession to the Throne Act, 2013, is a clear expression of that independence—the signifying of the solemn assent of a sovereign Canadian Parliament to changes agreed to and concurred in by the members of a 'free association' of states united by 'a common allegiance to the Crown.