A legal challenge that threatens to capsize changes to Canada’s royal succession laws could put the state of the monarchy in disarray. As the Commonwealth awaits news on whether Prince William and Kate Middleton will give birth to a boy or a girl, there is a rush to rewrite the laws of succession to allow either a first-born boy or girl to join the line to the throne.
But with questions surrounding the legality of Canada’s new change, there are some that think a court challenge could put Britain’s own royal succession changes into doubt.
It all seemed so simple. Britain wanted to update the Royal succession rules so, regardless of gender, Will and Kate's child could become the eventual heir.
They called on the 16 realms of the Commonwealth to update their laws as well and, for the most part, it has gone off without a hitch.
New Zealand and Australia, specifically, are moving forward with legislation. Australia, which has a similar governing structure to Canada, also corralled each of its state governments to sign on to the change.
Then Canada introduced and passed legislation that said, in essence, that if Britain changes its head of state, so does Canada. But a new legal challenge threatens to upend that legislation and could throw a wrench into the entire plan.
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A court challenge accuses Canada’s new legislation of being illegitimate because it did not seek a Constitutional amendment – a move that would require unanimous consent from provincial governments. Yes, even Quebec.
This not only threatens to force Canada back to the drawing board but, according to those starting to take notice in the U.K., it could hamper the entire Commonwealth.
As the U.K.'s Daily Express writes:
In Britain, the Succession to the Crown Act, enacting the reforms, was brought into law in April.
But it will not come into force unless all 16 realms agree the same changes, under what is known as a commencement order which needs to be made by Deputy Prime Minister Nick Clegg in his role as Lord President of the Privy Council.
Canada's legislation was tabled in January and passed unanimously by the House of Commons in April. The legal challenge was submitted to Quebec Superior Court on Friday, although Justice Minister Rob Nicholson could call for it to simply be heard by the Supreme Court in order to avoid years of court delays and appeals.
CBC News reports Andre Binette, a lawyer for the challenge, feels there was a clear attempt to avoid establishing a process for amending the Constitution. He suggests the decision to avoid amending the Constitution in this case opens to door for the government to duck such responsibility in the future.
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When the legislation was tabled, Heritage Minister James Moore said it would not require a constitutional amendment "since the laws governing succession are U.K. laws and not part of Canada's constitution."
Not all were in agreement. The Canadian Royal Heritage Trust raised doubt about that in February and much of what their stated at that time has come to light again in the Quebec legal challenge.
[T]he assent of the Parliament of Canada to the British Bill (and subsequent Act) is, in itself, insufficient to change the rules of Succession for Canada. A second action is legally required, and if it is not taken then the current rules of Succession will remain the law for Canada after the rules have been changed for the United Kingdom.
In short, The Constitution Act separated Canadian from English law, meaning any change that happens there after 1982 has no effect here. As such, a bill that says, "we're cool with following Britain on this one" doesn't supersede Canada's Royal secession laws, which wouldn't change to allow a first-born girl to rise to the throne.
Or at least that is the argument.
On the other hand, there is an argument that, since Canada has already passed its law, the Commonwealth-wide movement can proceed as if we are already signed on.
Binette suggests against that, telling the Daily Express things would get complicated if his legal challenge succeeds.
This whole thing is awfully messy; we’ll have to wait and see how things play out. The government is confident the law will stand, so this all could measure up to nothing. On the other hand, this could be the first time Canada has had any real effect on the monarchy.