O'Donohue v. Canada
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O'Donohue v. Canada was a legal challenge to the exclusion of Roman Catholics from the throne of Canada. The applicant sought a declaratory judgment that certain provisions of the Act of Settlement 1701 violate the equality-rights section of the Canadian Charter of Rights and Freedoms. In 2003 the Ontario Superior Court of Justice dismissed the case, finding the matter non-justiciable. In 2005 that decision was upheld on appeal.
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[edit] Background
The application was brought by Tony O'Donohue, a civil engineer and former Toronto City Councillor, after over two decades of pursuing reform of the succession by constitutional amendment.
Currently Canada's head of state is Elizabeth II, Queen of Canada; a legally distinct position from the Queen of the United Kingdom, though embodied in the same person. As a sovereign nation, Canada is free to alter its own laws, but because of this shared aspect of the Monarchy, Canada, along with the other Commonwealth Realms, adopted the Statute of Westminster, 1931, as a part of the Constitution. This Statute set out the convention that all of the Commonwealth Realms must have symmetrical lines of succession to each other, to maintain the unity of the Crown (See: Commonwealth Realm - Sovereignty of the Realms). Thus the law within the Canadian Constitution that predominantly governs the line of succession to the throne, the Act of Settlement, 1701, must remain identical to the same law in the other Realms, including the United Kingdom, and vice versa. The Act of Settlement, however, forbids Catholics from becoming King or Queen of Canada.
O'Donohue argued that this law was discriminatory, and attempted to have it repealed. As a sovereign country, Canada, it was argued, should be free to change any laws regarding who becomes the country's head of state. The Court File (NO.: 01-CV-217147CM) stated:
- The applicant. Tony O’Donohue, has brought the present application for a declaration that certain provisions of the Act of Settlement, 1710 [sic], are of no force or effect as they discriminate against Roman Catholics in violation of the equality provisions of the Canadian Charter of Rights and Freedoms. Pursuant to the order of Mr. Justice Spiegel dated May 29, 2002. only the issues of standing and justiciability are to be dealt with at this point. Should I grant the applicant standing and find justiciability the matter will proceed to be heard on the merits; if not, the application will be struck.
Her Majesty the Queen in Right of Canada and Her Majesty the Queen in Right of Ontario were named as respondents in the case.
From tonyodonohue.com:
O'Donohue, who's fighting the legislation in court, feels that it's not only a personal affront to him as a Roman Catholic but, by restricting Canada's head of state to only members of one particular religious sect, it's also a flagrant contravention of Canadian law. Section 15(1) of The Charter of Rights and Freedoms expressly forbids discrimination on the basis of "race, national or ethnic origin, colour, religion, sex, age or mental or physical disability".
The judgment of Justice Rouleau, of the Ontario Superior Court of Justice, was rendered on 2003-06-26. It was upheld by the Ontario Court of Appeal on 2005-03-16.
[edit] Interpretation
A few have interpreted Justice Rouleau's ruling as implying that the Constitution of Canada remains subordinate to external legislation, despite the 1982 patriation of the Constitution. As support for their argument they point to certain extracts of the ruling, such as:
- [36] The impugned positions of the Act of Settlement are an integral part of the rules of succession that govern the selection of the monarch of Great Britain. By virtue of our constitutional structure whereby Canada is united under the Crown of Great Britain, the same rules of succession must apply for the selection of the King or Queen of Canada and the King or Queen of Great Britain. As stated by Prime Minister St. Laurent to the House of Commons during the debate on the bill altering the royal title:
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- "Her Majesty is now Queen of Canada but she is the Queen of Canada because she is Queen of the United Kingdom... It is not a separate office, it is the sovereign who is recognized as the sovereign of the United Kingdom who is our Sovereign..." Hansard February 3, 1953, page 1566.
Further, he wrote:
- [38] In the present case the court is being asked to apply the Charter not to rule on the validity of acts or decisions of the Crown, one of the branches of our government, but rather to disrupt the core of how the monarchy functions, namely the rules by which succession is determined. To do this would make the constitutional principle of Union under the British Crown together with other Commonwealth countries unworkable, would defeat a manifest intention expressed in the preamble of our Constitution, and would have the courts overstep their role in our democratic structure.[1]
Others have found that the language of the judgment reinforces the principle of equality between the Commonwealth Realms, and makes clear that the Crown in Right of Canada, including the Office of the Queen, the line of succession, etc., is a legal entity separate but equal to the Crown in Right of the United Kingdom. This is illustrated in the Justice's words:
- [33] As a result of the Statute of Westminster it was recognized that any alterations in the rules of succession would no longer be imposed by Great Britain and, if symmetry among commonwealth countries were to be maintained, any changes to the rules of succession would have to be agreed to by all members of the Commonwealth. This arrangement can be compared to a treaty among the Commonwealth countries to share the monarchy under the existing rules and not to change the rules without the agreement of all signatories. While Canada as a sovereign nation is free to withdraw from the arrangement and no longer be united through common allegiance to the Crown, it cannot unilaterally change the rules of succession for all Commonwealth countries. Unilateral changes by Canada to the rules of succession, whether imposed by the court or otherwise, would be contrary to the commitment given in the Statute of Westminster, would break symmetry and breach the principle of union under the British Crown set out in the preamble to the Constitution Act, 1867. Such changes would, for all intents and purposes, bring about a fundamental change in the office of the Queen without securing the authorizations required pursuant to s. 41 of the Constitution Act, 1982. [emphasis added]
Also:
- [34] The operation of this commitment to symmetry and union of Canada under the British Crown was demonstrated by the adoption in 1937 of the Succession to the Throne Act, I Geo. VI, c.16. This Canadian statute effected changes to the rules of succession in Canada to assure consistency with the changes in the rules then in place in Great Britain. The changes were necessary in light of the abdication of Edward VIII in 1936. Absent this Canadian statute, the statutory change in Great Britain to account for Edward VIII’s abdication would have been contrary to Great Britain’s commitment in the Statute of Westminster. Arguably, without this statute, Edwards VIII’s abdication would not have been effective in respect of the Crown of Canada. [emphasis added]
And:
- [38] In the present case the court is being asked to apply the Charter not to rule on the validity of acts or decisions of the Crown, one of the branches of our government, but rather to disrupt the core of how the monarchy functions, namely the rules by which succession is determined. To do this would make the constitutional principle of Union under the British Crown together with other Commonwealth countries unworkable, would defeat a manifest intention expressed in the preamble of our Constitution, and would have the courts overstep their role in our democratic structure. [emphasis added]
Justice Rouleau's numerous references to "symmetry", "consistency", "association", etc., in regard to the Monarchy are also cited as examples which point towards a voluntary sharing of the Crown rather than any dominance of a "British" Crown over the other Realms.
It is uncontested that the case clearly demonstrated that legislation regarding succession of the Crown in Canada is of a constitutional character.
