2019 QCCA 1826, 2019 QCCA 1826

Motard v. Attorney General of Canada 2019 QCCA 1826 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-09-009233-161 (200-17-018455-139) DATE: OCTOBER 28, 2019 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. CLAUDE C. GAGNON, J.A. JOCELYN F. RANCOURT, J.A. GENEVIÈVE MOTARD PATRICK TAILLON APPELLANTS – Applicants v.

ATTORNEY GENERAL OF CANADA RESPONDENT – Defendant and ATTORNEY GENERAL OF QUEBEC CANADIAN ROYAL HERITAGE TRUST THE HONOURABLE SERGE JOYAL IMPLEADED PARTIES – Interveners JUDGMENT [*] Unofficial English translation of the judgment of the Court. [ 1 ] The appellants appeal against a judgment rendered on February 16, 2016 by the Superior Court, District of Quebec (the Honourable Mr. Justice Claude Bouchard), that dismissed their application for a declaratory judgment. [†] [ 2 ] For the reasons of Rancourt, J.A., with which Kasirer and Gagnon, JJ.A. concur, THE COURT : [ 3 ] DISMISSES the appeal, with legal costs.

NICHOLAS KASIRER, J.A. CLAUDE C. GAGNON, J.A. JOCELYN F. RANCOURT, J.A. Mtre André Joli-Coeur Joli-Coeur, Lacasse For the appellants Mtre Julien Fournier Consulting attorney for the appellants Mtre David Lucas Mtre Warren Newman Department of Justice Canada For the respondent

Mtre Dominique Rousseau Mtre Marie-Catherine Bolduc Lavoie, Rousseau (Justice – Québec) For the impleaded party, Attorney General of Quebec Mtre Michel Boulianne For the impleaded party, Canadian Royal Heritage Trust Mtre Catherine Mathieu Woods, LLP Consulting attorney for the impleaded party, Canadian Royal Heritage Trust Honourable Serge Joyal Impleaded party Date of hearing: February 19, 2018 REASONS OF RANCOURT, J.A. 1.

Context [ 4 ] At a meeting in Perth, Australia, in October 2011, the 16 Commonwealth heads of state agreed to propose amendments to the rules of succession to the British throne. [ 5 ] The Perth Agreement, signed on October 28, 2011, provided for the repeal of the rule of male preference primogeniture. This rule gives the sovereign’s eldest legitimate son priority of succession to the throne. In other words, the sovereign’s eldest son is first in line to the throne even if the eldest child in the family is a daughter.

With the Perth Agreement, this rule was repealed, such that, henceforth, the sovereign’s eldest child, regardless of gender, would be first in line to the throne. [ 6 ] It also repealed the rule whereby a person could not succeed to the Crown if his or her spouse were a Roman Catholic. [ 7 ] Within this perspective, on December 13, 2012, the Government of the United Kingdom tabled a Bill before the British Parliament entitled “Succession to the Crown Bill” which provided, in particular, for an order of succession to the Crown determined regardless of gender and for an end to the incapacity to reign due to the successor’s marriage to a Roman Catholic. [ 8 ] Before passing this Bill, the Parliament of the United Kingdom complied with the constitutional convention described in the

preamble to the Statute of Westminster , [3] which was enacted in 1931. As the convention required, it sought Canada’s assent to the amendments to the rules of succession to the throne. [ 9 ] It is with this in mind that on January 31, 2013, the Government of Canada tabled Bill C-53 entitled “

An Act to assent to alterations in the law touching the Succession to the Throne ” [4] (the “ 2013 Canadian Assent Act ”). [ 10 ] The Bill passed all stages in both Houses and received Royal Assent on March 27, 2013. [ 11 ] The Act is short and its s. 2 reads as follows: 2. The alteration in the law touching the Succession to the Throne set out in the bill laid before the Parliament of the United Kingdom and entitled A Bill to Make succession to the Crown not depend on gender; to make provision about Royal Marriages, and for connected purposes is assented to. 2.

Assentiment est donné aux modifications apportées à la loi concernant la succession au trône, énoncées dans le projet de loi déposé devant le Parlement du Royaume-Uni et intitulé A Bill to Make succession to the Crown not depend on gender; to make provision about Royal Marriages, and for connected purposes . [ 12 ] The British Parliament adopted the act entitled “ Succession to the Crown Act ” [5] (the “ 2013 British Act ”) which received Royal Assent on April 25, 2013. [ 13 ] The 2013 British Act and the 2013 Canadian Assent Act came into force on March 26, 2015. [6] 2.

The appellants’ challenge [ 14 ] The appellants filed a motion for a declaratory judgment on June 6, 2013. [ 15 ] They asked the Superior Court to declare the 2013 Canadian Assent Act unconstitutional. They argued that it had not been enacted in accordance with the amending procedure set out in s. 41(

a) of the Constitution Act, 1982 . [7]

[ 16 ]

Section 41(

a) of the Constitution Act, 1982 provides that an amendment to the “office of the Queen” must first be authorized by resolutions of the Senate, the House of Commons and the legislative assembly of each province. [ 17 ] The appellants contended that the 2013 Canadian Assent Act changed the rules for designating the federal and provincial heads of state and thereby amended the office of the Queen.

Consequently, before enacting this statute, the Canadian Parliament was required to follow the procedure set out in s. 41( a) , which it did not do, leading to the request for the declaration of unconstitutionality. [ 18 ] The appellants also raised two subsidiary grounds. [ 19 ] First, they submitted that even if the 2013 Canadian Assent Act could be enacted without following the procedure set out in s. 41( a ), it violated ss. 2 and 15 of the Canadian Charter of Rights and Freedoms [8] (the “ Canadian Charter ”). [ 20 ] In this regard, they referred to the 2013 British Act which maintained the requirement that the Queen or King of the United Kingdom (and therefore the Queen of Canada) be a member of the Church of England.

This meant that a non-believer or a member of any other religion could not become the Queen of Canada. [ 21 ] According to the appellants, this requirement is discriminatory and violates the freedom of conscience and religion as well as the right to equality, respectively enshrined in ss. 2 and 15 of the Canadian Charter . [ 22 ] Second, they submitted that the 2013 Canadian Assent Act assented to a British statute drawn up only in English.

Since the 2013 British Act did not have a French version, this resulted in a violation of s. 133 of the Constitution Act, 1867 [9] which requires that laws be enacted in both official languages. 3.

The judgment under appeal [ 23 ] In a detailed judgment, [10] the judge identified the first disputed issue, which was to determine whether the 2013 Canadian Assent Act had to be enacted in accordance with the procedure set out in s. 41 of the Constitution Act, 1982 . [11] To answer this question, the judge stated that he had to decide whether the British rules of succession to the throne were part of Canadian constitutional law.

If they were a part thereof, he then had to determine whether their amendment was subject to the amending procedure set out in s. 41 of the Constitution Act, 1982 . [12] [ 24 ] He then had to decide whether the 2013 Canadian Assent Act infringed freedom of religion and whether it violated the obligation set out in s. 133 of the Constitution Act, 1867 . [13] [ 25 ] As regards the first question, the judge was of the opinion that these rules of succession to the throne did not form part of Canadian constitutional law.

According to him, the British laws dealing with these rules, namely, the Bill of Rights and the Act of Settlement, had not been incorporated ex proprio vigore (by their own force) into the Canadian Constitution. [ 26 ] He supported his reasoning as follows: [ translation ] [141] In

summary, because Canada is a constitutional monarchy, the King or Queen of the United Kingdom is the King or Queen of Canada. This principle flows from

section 9 of the 1867 Act , in light of the

preamble, which provides that Canada is “under the Crown of the United Kingdom... with a Constitution similar in Principle to that of the United Kingdom”. [142] This principle was not amended by the enactment of the Statute of Westminster in 1931, as the Parliament of the United Kingdom preserved the power to legislate and amend the rules governing succession to the throne, subject to the fact, however, that under the

preamble of this statute, it must by constitutional convention obtain the assent of the other member countries of the Commonwealth. [143] In this respect, it falls to each of these countries to give its assent or not to an amendment of the rules of succession to the throne, pursuant to its own procedure. Here, under its residual power set out in the introductory paragraph of

section 91 of the 1867 Act , the Parliament of Canada has jurisdiction to enact a law assenting to the amendments to the British law concerning succession to the throne. [144] In 1936, during the abdication of King Edward VIII and the accession of a new King, Canada first requested and consented to these changes by availing itself of the procedure under

section 4 of the Statute of Westminster , which provides that it must request and consent to the application of the British law for it to apply. Subsequently, it gave its assent to an amendment to the rules of succession to the throne by enacting a statute to this effect. [145] In this respect, the Court believes that the use of the procedure in

section 4 of the Statute of Westminster (1931), if it was even necessary, concerned only that part of the British law relating to the abdication of the King and the accession of a new King and took place in a specific context characterized in particular by its exceptional nature in terms of the principle of hereditary succession determined by the United Kingdom, which is part of the backdrop to the Constitution of Canada. [146] Moreover, Canada did not need to amend either its laws or its Constitution for the British rules of royal succession to be amended and effective; pursuant to the

preamble to the Statute of Westminster and the convention therein, assent to these amendments sufficed. Besides, the rule of symmetry meant that the person designated King or Queen of the United Kingdom was also designated as such for Canada. [147] Similarly, neither the order in council passed on December 10, 1936, nor the 1937 Act respecting alteration in the law touching the Succession to the Throne amended the Canadian constitution.

[148] Accordingly, since the British Acts and the provisions relating to royal succession in the Bill of Rights and the Act of Settlement in particular are not part of the Canadian Constitution, they did not need to be amended to adapt to the British changes to the order of succession. [149] The Statute of Westminster is still part of the Canadian Constitution as patriated in 1982, and its

preamble provides for Canada’s assent in the event of an amendment to the rules of royal succession.

The difference in the 1982 Act , however, is in the formula to amend the Canadian constitution, where it is expressly provided that an amendment pertaining to the “office of the Queen” requires the unanimous consent of the Senate and House of Commons and of the legislative assembly of each province. [150] In this case, the Court is of the view that an amendment to the rules of royal succession in the United Kingdom does not constitute an amendment to the Constitution of Canada in relation to the “office of the Queen” because it must be distinguished from amendments to the powers, status and constitutional role of the Crown. [ 27 ] The judge then answered the question of whether the 2013 Canadian Assent Act infringed the provisions of the Canadian Charter prohibiting discrimination based on freedom of religion.

In this regard, he noted that the 2013 British Act is not subject to the Canadian Charter . [14] He stated that the principle in the

preamble to the Constitution Act, 1867 by which the Queen of the United Kingdom is the Queen of Canada is an organizing constitutional principle.

Consequently, he continued, the Canadian Charter [ translation ] “cannot invalidate this type of organizing constitutional principle, because the former cannot claim hierarchical superiority over the latter”. [15] [ 28 ] Lastly, with respect to the violation of s. 133 of the Constitution Act, 1867 relating to legislative bilingualism, the judge was of the opinion that the 2013 Canadian Assent Act [ translation ] “did not give force of law to the 2013 British Act or extend its application to Canada, either directly or through incorporation by reference”. [16] According to him, therefore, there was no violation of s. 133 of the Constitution Act, 1867 . 4.

The issues in dispute [ 29 ] The dispute raises the following issues:

(1) Did the judge err by concluding that the British rules of succession to the throne do not form part of the Canadian Constitution?

(2) Did the judge err by concluding that the British rules of succession to the throne do not form part of the “office of the Queen” of Canada?

(3) Does the 2013 Canadian Assent Act infringe the freedom of conscience and religion enshrined in s. 2(

a) of the Canadian Charter ?

(4) Does the 2013 Canadian Assent Act infringe s. 133 of the Constitution Act, 1867 and s. 18 of the Constitution Act, 1982 dealing with the obligation to enact laws in both of Canada’s official languages? 5.

Analysis 5.1 Did the judge err by concluding that the British rules of succession to the throne do not form part of the Canadian Constitution? 5.1.1 The British rules of succession to the throne [ 30 ] The British rules of succession to the throne originate from the 1689 Bill of Rights [17] and the 1701 Act of Settlement . [18] [ 31 ] In 1685, James II, a Roman Catholic, succeeded his brother and became King of England. His reign was marked by unpopular measures and his vague desire to ensure a Roman Catholic succession to the throne.

This worried the English, and William, who was married to Mary, the daughter of James II, made his way to England from Holland with an army to fight against the reign of James II. [ 32 ] James II fled England and took refuge in France. The British Parliament then declared the abdication of King James II and entrusted the throne jointly to William and Mary who henceforth were called William III and Mary II. In return, in an agreement, William III and Mary II undertook to defend the Bill of Rights. [ 33 ] The Bill of Rights was a major piece of legislation passed by the Parliament of England.

It limited the monarch’s powers by introducing the principle of a parliamentary monarchy. It granted the kingdom’s citizens several fundamental rights.

It set out the royal succession rules pursuant to which the throne would devolve first to the descendants of Mary II and William III, and then to her sister Anne. [ 34 ] The British Parliament met in 1700 to adopt new rules of royal succession because Mary II died in 1694 without heirs, William III did not remarry and Anne’s sole surviving child died in 1700. [ 35 ] Fearing the possibility that there would be no Protestant heir, the British Parliament adopted the Act of Settlement which also contained provisions enshrining the principle of parliamentary sovereignty.

The Act of Settlement reiterated the rule whereby only a person of the Protestant faith could accede to the throne. It also excluded accession to the throne by a person married to a Roman Catholic.

[ 36 ] Since William III and Anne had no descendants, Parliament sought to ensure that the members of the Protestant family of Hanover would accede to the throne. Consequently, after Anne, who became Queen following the death of William III in March 1702, the Crown was to pass to Princess Sophia of Hanover and to her Protestant descendants. [ 37 ] Sophia of Hanover died in 1714, six weeks before Anne who had no descendants. The Crown passed to the son of Sophia of Hanover, George I, who became King of England in 1714.

George I is the first of the royal lineage we know today of which Queen Elizabeth II is the descendant. 5.1.2 The British rules of succession to the throne and the Canadian Constitution [ 38 ] The appellants are of the view that the judge erred by recognizing the existence of a rule of royal succession determined by the United Kingdom within our Canadian constitutional law. [ 39 ] They question the principle of symmetry accepted by the judge pursuant to which the King or Queen of the United Kingdom is also the King or Queen of Canada.

According to them, this principle is inconsistent with the text of the Canadian Constitution. They claim that the provisions of the Bill of Rights and the Act of Settlement dealing with royal succession were imposed ex proprio vigore on the colonies and are an integral part of the Canadian Constitution. To justify the incorporation of the British rules of royal succession in Canadian constitutional law, they rely on the precedent created by the abdication of King Edward VIII in 1936.

Lastly, they are of the opinion that the rules of royal succession form part of the expression “office of the Queen” which is protected by s. 41(

a) of the Constitution Act, 1982 , such that the 2013 Canadian Assent Act should have been enacted in accordance with the requirements of that provision. [ 40 ] Let us consider these arguments. 5.1.2.1 The principle of symmetry and the Constitution [ 41 ] The judge determined that certain principles underlying the rules of succession to the throne form part of the Canadian Constitution.

In that regard, he identified the principle of recognition whereby the King or Queen of the United Kingdom is the King or Queen of Canada, as well as the principle of hereditary succession established by the United Kingdom. [19] [ 42 ] Contrary to the argument put forth by the appellants, the principle of symmetry between the Queen of the United Kingdom and the Queen of Canada is firmly rooted in the Canadian Constitution. [ 43 ] To be convinced of this, it is useful to go back to the Constitution Act, 1867 , Canada’s founding text. [ 44 ] The

preamble to the Constitution Act, 1867 clearly states that Canada’s founding provinces are uniting federally into one dominion under the crown of the United Kingdom of Great Britain and Ireland. It reads as follows: WHEREAS the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland , with a Constitution similar in Principle to that of the United Kingdom. [Emphasis added] [ 45 ] Moreover,

section 9 of the Constitution Act, 1867 declares that the executive government and authority of and over Canada continues and is vested in the Queen.

Section 17 of the Constitution Act, 1867 establishes that Parliament is comprised of the Queen, an upper house styled the Senate, and the House of Commons.

Section 91 of the Constitution Act, 1867 confers upon the Queen, by and with the advice of the Senate and the House of Commons, the power to make laws for the peace, order and good government of Canada. Lastly, the oath of allegiance that members of the Senate or the House of Commons must take and subscribe, in accordance with

section 128 and the fifth

schedule to the Constitution Act, 1867 , is addressed specifically by name to Her Majesty Queen Victoria. [ 46 ] The Queen referred to in the Constitution Act, 1867 can therefore only be the Queen of the United Kingdom. [ 47 ] Canadian constitutional law experts Mark D. Walters, [20] Benoît Pelletier [21] and Peter W.

Hogg are of the view that the principle of symmetry, resulting from the harmonization of the political will to share the same monarch, is part of our Canadian constitutional law. [ 48 ] Professor Hogg writes that Canada has never had Canadian rules of succession to the throne, but rather a rule of recognition whereby the monarch of the United Kingdom is also the monarch of Canada. He states the following: What Canada has is a rule of recognition: Canada automatically takes as its monarch whoever is the monarch of the U.K. [22] [ 49 ] In O’Donohue v.

Canada , Rouleau, J. of the Ontario Superior Court of Justice had the following to say about the principle of symmetry: […] it is axiomatic that the rules of succession for the monarchy must be shared and be in symmetry with those of the United Kingdom and other Commonwealth countries. One cannot accept the monarch but reject the legitimacy or legality of the rules by which this monarch is selected. [23] [ 50 ] It is therefore mistaken to state that the principle of symmetry has no legal basis and is inconsistent with the Canadian Constitution.

[51] The appellants also argue that the rule of monarchic symmetry goes against the constitutional principles of the rule of law andfederalism. [52] With all due respect, there is nothing in the record to show how the rule of symmetry contradicts the principle of the rule of law,a principle that “vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs”, as the Supreme Court noted in the Reference re Secession of Quebec.[24] Nor do we see how the principle of symmetry clasheswith the principle of federalism which “recognizes the diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction”.[25] [53] In the present matter, the judge’s logic regarding the recognition of a principle of monarchic symmetry that is compatible withthe text of the Constitution is beyond reproach. 5.1.2.2 The British rules of succession to the throne and the Canadian Constitution [54] According to the appellants, the provisions dealing with the British rules of royal succession set forth in the Bill of Rights and inthe Act of Settlement are incorporated in Canadian constitutional law ex proprio vigore.

Thus, the appellants claim, Canada has its ownrules of succession to the throne. Their integration in the Canadian Constitution means that any amendment to said rules requirescompliance with the amending procedure set out in the Constitution Act, 1982, which procedure was not followed in the instant case. [55] The judge was of the opinion that it is not the provisions of these British statutes dealing with the rules of succession to the throne that form part of the Canadian Constitution, but rather the principles underlying those rules.[26] [56] He is correct. [57] The

preamble to the Constitution Act, 1867 provides for a Canadian Constitution similar in principle to the British Constitution.Professor Benoît Pelletier writes that the 1867 constituents spoke of a “principle”, not entire British laws. He states the following: [translation] It should be noted here that the 1867 constituents spoke of principles and not necessarily of entire British laws.

This distinction is notinsignificant, since the principles in question do not always stem from laws, and since, as we have just said, it is not so much these laws that have been introduced into Canadian law as it is the principles they contain.[27] [58] In the same vein, the Supreme Court of Canada has always been cautious not to transplant into Canadian domestic law thespecific provisions of the Bill of Rights and the Act of Settlement, two fundamental British laws.

It is the principles underlying theselegislative texts that form part of the Canadian constitutional architecture, not their specific provisions. [59] In New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly),[28] the Supreme Court had to determinewhether the Canadian Charter applied to the parliamentary privileges of a House of Assembly that had decided to prohibit cameras inthe House. [60] In response to the argument that the

preamble to the Constitution Act, 1867 incorporates

article 9 of the Bill of Rights, whichdeals with legislative privileges, Lamer, C. J. stated the following: The second argument posed by the appellant and interveners in support of the appellant is as follows. They argue that the

preamble of theConstitution Act, 1867 in referring to “a Constitution similar in Principle to that of the United Kingdom” incorporates art. 9 of theEnglish Bill of Rights of 1689, and thereby incorporates the privileges of legislative bodies. I do not think that the wording of thepreamble of the Constitution Act, 1867 can be taken to refer to so specific an

article of the Constitution of the United Kingdom. Whilethe Constitution of Canada is undoubtedly founded upon many of the same broad principles as is the Constitution of the United Kingdom, the two are far from identical.

Article 9 cannot be directly transplanted without specific reference.[29] [Emphasis added] [61] McLachlin, J. shared the same point of view. She wrote: In respect of the second argument, it is clear that, absent specific reference, the wording of the

preamble should not be understood to referto a specific

article of the English Bill of Rights. This is not to say that the principles underlying art. 9 of the English Bill of Rights of1689 do not form part of our law and inform our understanding of the appropriate relationship between the courts and legislative bodies in Canada: Reference re Resolution to Amend the Constitution, (SCC), [1981] 1 S.C.R. 753, at p. 785.[30] [62] In Reference re Secession of Quebec,[31] the Supreme Court also analyzed the value of the four underlying constitutionalprinciples (federalism, democracy, constitutionalism and the rule of law, and the protection of minorities): 51.

Although these underlying principles are not explicitly made part of the Constitution by any written provision, other than in somerespects by the oblique reference in the

preamble to the Constitution Act, 1867, it would be impossible to conceive of our constitutionalstructure without them. The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood. 52. The principles assist in the

interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights andobligations, and the role of our political institutions. Equally important, observance of and respect for these principles is essential to theongoing process of constitutional development and evolution of our Constitution as a “living tree”, to invoke the famous description inEdwards v. Attorney-General for Canada, (UK JCPC), [1930] A.C. 124 (P.C.), at p. 136. As this Court indicated in

New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), (SCC), [1993] 1 S.C.R. 319, Canadians have long recognized the existence and importance of unwritten constitutional principles in our system of government.[32] [63] In Reference re Remuneration of Judges of the Provincial Court (P.E.I.),[33] the Supreme Court dealt with the constitutionalprinciple of judicial independence whose roots date back to the Act of Settlement of 1701: 83. Notwithstanding the presence of s. 11(

d) of the Charter, and ss. 96-100 of the Constitution Act, 1867, I am of the view thatjudicial independence is at root an unwritten constitutional principle, in the sense that it is exterior to the particular sections of theConstitution Acts. The existence of that principle, whose origins can be traced to the Act of Settlement of 1701, is recognized and affirmed by the

preamble to the Constitution Act, 1867.[34] [64] The appellants’ claim to the effect that the British laws of succession to the throne have been incorporated into the CanadianConstitution is not mindful of the Supreme Court’s approach which consists in identifying underlying constitutional principles ratherthan recognizing the integration of specific provisions of British laws. [65] Moreover, we cannot overlook the fact that the Canadian Parliament did not see fit to include these British laws in the list oflaws set out in the definition of the Constitution of Canada in s. 52(2) of the Constitution Act, 1982. [66] In short, the trial judge did not commit a reviewable error in concluding that the British rules of succession have not beincorporated ex proprio vigore in Canada.

Consequently, compliance with the amending procedure in

Part V of the Constitution Act,1982 was not required in order to act upon the amendments to the British rules of succession adopted in the 2013 British Act. It wassufficient for the Canadian Parliament to enact a statute giving its assent, as it did in 2013. 5.1.2.3 The 1931 Statute of Westminster and the precedent created by the abdication of King Edward VIII [67] In 1931, the Imperial Parliament enacted the Statute of Westminster. Canada became independent.

This statute also enshrinedthe existence of a Canadian Crown distinct from the British Crown, even if both states designate the same individual. [68] The following are the relevant sections of the Statute of Westminster:[35] […] And whereas it is meet and proper to set out byway of

preamble to this Act that, inasmuch asthe Crown is the symbol of the free associationof the members of the British Commonwealth ofNations , and as they are united by a commonallegiance to the Crown, it would be in accordwith the established constitutional position of allthe members of the Commonwealth in relationto one another that any alteration in the lawtouching the Succession to the Throne or theRoyal Style and Titles shall hereafter require theassent as well of the Parliaments of all theDominions as of the Parliament of the UnitedKingdom: […] 2. Validity of laws made by Parliament of aDominion. 28 & 29 Vict. c. 63.

(1) The Colonial Laws Validity Act, 1865, shallnot apply to any law made after thecommencement of this Act by the Parliament ofa Dominion. Attendu : […] qu’il convient, puisque la couronne est lesymbole de la libre association de tous lesmembres du Commonwealth britannique etqu’ils sont unis par une commune allégeance àcelle-ci, de déclarer en préambule que seraitconforme à leur situation constitutionnellel’obligation d’assujettir désormais toutemodification des règles de succession au trône etde présentation des titres royaux à l’assentimentdes parlements des dominions comme à celui duParlement du Royaume-Uni; […] 2. Validité des lois d’un dominion 28-29 Vict.,ch. 63

(1) La loi de 1865 sur la validité des loiscoloniales, intitulée Colonial Laws Validity Act,1865, ne s’applique pas aux lois adoptées par leparlement d’un dominion après l’entrée en

(2) No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion. […] 4. Parliament of United Kingdom not to legislate for Dominion except by consent.

No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to the enactment thereof. […] 7. Saving for British North America Acts and application of the Act to Canada.

(1) Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder.

(2) The provisions of

section two of this Act shall extend to laws made by any of the Provinces of Canada and to the powers of the legislatures of such Provinces.

(3) The powers conferred by this Act upon the Parliament of Canada or upon the legislatures of the Provinces shall be restricted to the enactment of laws in relation to matters within the competence of the Parliament of Canada or of any of the legislatures of the Provinces respectively . vigueur de la présente loi.

(2) Les lois ou dispositions législatives adoptées par le parlement d’un dominion après l’entrée en vigueur de la présente loi ne sont pas invalides ni inopérantes du fait de leur incompatibilité soit avec le droit de l’Angleterre, soit avec les lois existantes ou ultérieures du Parlement du Royaume-Uni ou leurs textes d’application, le parlement du dominion ayant parmi ses pouvoirs celui d’abroger ou de modifier ces lois ou textes dans la mesure où ils font

partie du droit du dominion. [ … ] 4. Application des lois britanniques aux dominions Les lois adoptées par le Parlement du Royaume- Uni après l’entrée en vigueur de la présente loi ne font

partie du droit d’un dominion que s’il est expressément déclaré dans ces lois que le dominion a demandé leur édiction et y a consenti. [ … ] 7. Restriction : Canada

(1) La présente loi ne s’applique pas à l’abrogation ni à la modification des Lois de 1867 à 1930 sur l’Amérique du Nord britannique ou de leurs textes d’application.

(2) L’article 2 s’applique aux lois des provinces du Canada et aux pouvoirs de leurs législatures.

(3) Les pouvoirs conférés par la présente loi au Parlement du Canada et aux législatures des provinces se limitent à l’édiction de lois dont

l’objet relève de leurs compétences respectives . [Emphasis added] [ 69 ] Section 2(1) of the Statute of Westminster rendered the Colonial Laws Validity Act, 1865 [36] inapplicable for the future; the latter statute provided, inter alia , for the nullity of laws adopted by a colony that conflicted with those of the Imperial Parliament. The power to repeal or amend such laws is described in s. 2(2) of the Statute of Westminster .

Section 4 states that the laws adopted by the British Parliament after the coming into force of the Statute of Westminster will not form part of the dominion’s law. There is one exception: they can form part thereof if the British laws expressly declare that the dominion has requested and consented to such enactment. Section 7(1) contains restrictions for Canada, including one stating that the Statute of Westminster does not “apply to the repeal, amendment or alteration of the British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder”. [37] [ 70 ] The

preamble to the Statute of Westminster contains a particular element specifically targeting the amendment of the British rules of succession to the throne.

The Parliament of the United Kingdom undertook, pursuant to a constitutional convention, to subject any amendment of such rules to the assent of the dominions. [ 71 ] According to the appellants, the precedent created by the abdication of King Edward VIII in December 1936 and the adoption by the Parliaments of the United Kingdom and Canada of legislative texts to follow up thereon confirm the existence of Canadian rules of succession to the throne. [ 72 ] A very brief historical overview is in order here. In January 1936, King Edward VIII acceded to the throne after the death of his father, George V.

A few months later, he caused a constitutional crisis by proposing marriage to Wallis Simpson, an American divorcee who was in the process of divorcing her second husband.

Faced with the hostility of the Church of England and of the political authorities who did not accept the idea of this union, and remaining firm in his plan to marry, Edward VIII abdicated the Crown on December 10, 1936. [ 73 ] The British Parliament in turn hastily prepared a bill dealing with His Majesty’s abdication. [ 74 ] Needless to say, the context was unique and the situation urgent. [ 75 ] The Canadian Parliament was not sitting at the time of the abdication.

The Committee of the Privy Council, however, met on December 10, 1936 and adopted an order in council recommending: (1) that the adoption of the British bill be approved; (2) that the statute that was about to be enacted be as consistent as possible with the bill; and (3) that once it was enacted, the British statute be brought before the Parliament of Canada so that the latter could take the necessary measures in accordance with the provisions of the Statute of Westminster . [38] In the introduction to the order in council, the Committee referred both to the

preamble and to s. 4 of the Statute of Westminster to justify its approach. [ 76 ] The Act to give effect to his Majesty’s declaration of abdication was enacted by the British Parliament on December 11, 1936. It contains a

preamble and two sections, which it is appropriate to cite: Whereas His Majesty by His Royal Message of the tenth day of December in this present year has been pleased to declare that He is irrevocably determined to renounce the Throne for Himself and His descendants, and has for that purpose executed the Instrument of Abdication set out in the

Schedule to this Act, and has signified His desire that effect thereto should be given immediately: And whereas, following upon the communication to His Dominions of His Majesty’s said declaration and desire, the Dominion of Canada pursuant to the provisions of

section four of the Statute of Westminster 1931 has requested and consented to the enactment of this Act, and the Commonwealth of Australia, the Dominion of New Zealand, and the Union of South Africa have assented thereto: 1. Effect of His Majesty’s declaration of abdication.

(1) Immediately upon the Royal Assent being signified to this Act the Instrument of Abdication executed by His present Majesty on the tenth day of December, nineteen hundred and thirty-six, set out in the

Schedule to this Act, shall have effect, and thereupon His Majesty shall cease to be King and there shall be a demise of the Crown, and accordingly the member of the Royal Family then next in succession to the Throne shall succeed thereto and to all the rights, privileges, and dignities thereunto belonging.

(2) His Majesty, His issue, if any, and the descendants of that issue, shall not after His Majesty’s abdication have any right, title or interest in or to the succession to the Throne, and

section one of the Act of Settlement shall be construed accordingly.

(3) The Royal Marriages Act 1772 shall not apply to His Majesty after His abdication nor to the issue, if any, of His Majesty or the descendants of that issue. [39] 2.

Short title. This Act may be cited as His Majesty’s Declaration of Abdication Act 1936. [ 77 ] A few months later, the Canadian Parliament enacted the 1937 Act respecting alteration in the law touching the Succession to the Throne (the “ 1937 Canadian Act ”). In doing so, it assented to the British statute regarding Edward VIII’s declaration of abdication. The

preamble to the Canadian statute refers to s. 4 of the Statute of Westminster as well as to the constitutional convention included therein. The following is the text of the

preamble and the sole

section of this statute enacted by the Parliament of Canada: [40] WHEREAS his former Majesty, King Edward VIII, by His Royal Message of the tenth day of December, in the year of Our Lord one thousand CONSIDÉRANT qu’il a plu à Sa ci-devant Majesté le roi Edouard VIII, par Son message royal du dixième jour de décembre mil neuf cent

nine hundred and thirty-six, was pleased to declare that He was irrevocably determined to renounce the Throne for Himself and His descendants, and that He had for that purpose executed the Instrument of Abdication, which is set out in

Schedule One to this Act, and signified his desire that effect thereto should be given immediately; AND WHEREAS, following upon communication to His Majesty’s Government in Canada of his former Majesty’s said declaration and desire, the request and consent of Canada, pursuant to the provisions of

section four of the Statute of Westminster, 1931, to the enactment of His Majesty’s Declaration of Abdication Act, 1936, which is set out in

Schedule Two to this Act, was communicated to His Majesty’s Government in the United Kingdom; AND WHEREAS the following recital is set forth in the

preamble to the Statute of Westminster, 1931: “AND WHEREAS it is meet and proper to set out by way of

preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom”; and accordingly it becomes necessary to declare the Assent of the Parliament of Canada to the alteration in the law touching the Succession to the Throne set forth in His Majesty’s Declaration of Abdication Act, 1936.

Now, therefore, His Majesty by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: trente-six, d’affirmer Sa détermination irrévocable de renoncer au trône pour Elle- même et ses descendants et qu’Elle a souscrit à cette fin l’acte d’abdication énoncé dans la première

annexe de la présente loi, en exprimant le désir qu’il prît immédiatement effet: CONSIDÉRANT que, sur communication de ces affirmation et désir de Sa ci-devant Majesté, faite au Gouvernement de Sa Majesté au Canada, la demande et le consentement du Canada, conformément aux dispositions de l’article quatre du Statut de Westminster (1931.), pour ce qui concerne l’adoption de la

Loi sur la déclaration d’abdication de Sa Majesté (1936), énoncée dans la seconde

annexe de la présente loi, ont été transmis au Gouvernement de Sa Majesté dans le Royaume- Uni: CONSIDÉRANT que l’exposé de motif suivant est énoncé dans le préambule du Statut de Westminster (1931): «CONSIDÉRANT qu’il est utile et opportun, puisque la Couronne est le symbole de la libre association des membres de la Communauté des nations britanniques et qu’elles se trouvent unies par une allégeance commune à la Couronne, d’exposer, sous forme de préambule à la présente loi, qu’il serait conforme au statut constitutionnel consacré de tous les membres de la Communauté, dans leurs rapports réciproques, de déclarer que toute modification de la

loi sur la succession au trône ou sur la dignité royale et les titres royaux doit recevoir désormais l’assentiment des Parlements de tous les Dominions aussi bien que celui du Parlement du Royaume-Uni)»; et qu’il devient nécessaire, en conséquence, de déclarer l’assentiment du Parlement du Canada à la modification apportée à la loi concernant la succession au trône, contenue dans la

Loi sur la déclaration d’abdication de Sa Majesté (1936). A CES CAUSES, Sa Majesté, sur l’avis et du consentement du Sénat et de la Chambre des communes du Canada, décrète: 1. Est par les présentes approuvée la modification apportée à la loi concernant la succession au trône, énoncée dans la loi du Parlement du Royaume-Uni intitulée:

Loi sur la déclaration d’abdication de Sa Majesté (1936).

1. The alteration in the law touching the Succession to the Throne set forth in the Act of the Parliament of the United Kingdom intituled “His Majesty’s Declaration of Abdication Act, 1936” is hereby assented to. [ 78 ] For the appellants, the reference in this Canadian statute to s. 4 of the Statute of Westminster entails the following consequence: Canada incorporated the British rules of succession to the throne into its domestic law.

According to them, this could not be otherwise, because Canada requested that His Majesty’s Declaration of Abdication Act be enacted and consented thereto, which conditions necessarily led to its integration in our law. Having been so incorporated into Canadian constitutional law, any subsequent amendment to the British rules of succession to the throne, such as the one in the 2013 British Act , required compliance with the amending procedure provided for in s. 41 of the Constitution Act, 1982 . [ 79 ] The judge did not share this opinion.

He explained himself as follows. [ 80 ] He noted that Canada had followed a two-step process. First, in December 1936, in the context of an emergency, the Privy Council adopted an order in council dealing with the abdication and the accession to the throne of a new monarch. In the judge’s view, resorting to the procedure in s. 4 of the Statute of Westminster confirmed Canada’s acceptance of that immediately applicable change and abided by the principle of monarchic symmetry. [ 81 ] Second, the judge referred to the enactment, a few months later, of the 1937 Canadian Act .

The sole purpose of that statute was to give Canada’s assent to the amendment to the British law touching the succession to the throne set forth in His Majesty’s Declaration of Abdication Act, 1936 . Even though the 1937 Canadian Act also referred to the procedure in s. 4 of the Statute of Westminster , the judge did not see this as a sign of a constitutional amendment. In this regard, he relied on the opinion of Professor Benoît Pelletier who was of the view that an amendment to the Canadian Constitution would have required a formal request to the Parliament of the United Kingdom.

The judge was also of the opinion that it was not necessary to resort to the use of that provision, because a mere assent was sufficient. [ 82 ] These conclusions contain no reviewable errors. They are based on a detailed analysis of the numerous exchanges of correspondence between the main political actors of the time, on an in-depth study of the parliamentary debates at the time the decisions were made and on a review of the concomitant doctrinal texts.

The judge also had the benefit of carefully reviewing the expert reports and hearing the experts who testified about their understanding of the events. [ 83 ] It was never the intention of the Canadian Parliament on that occasion to incorporate the British rules of succession to the throne into its domestic law. [ 84 ] By adopting the order in council on December 10, 1936, the intention was to urgently respond to the exceptional situation created by the abdication of King Edward VIII and the accession to the throne of his brother, George VI.

It cannot be inferred from this response that Canada expressed its willingness to adopt the British rules of succession, much less to amend its Constitution. [ 85 ] As for the 1937 Canadian Act , it contains only one section, whereby Parliament assents to His Majesty’s Declaration of Abdication Act . It contains no reference to the fact that the British law of royal succession is being incorporated into the Canadian Constitution. [ 86 ] Furthermore, by using the constitutional convention set forth in the

preamble to the Statute of Westminster and resorting to the procedure provided for in its s. 4, Canada arguably acted out of abundant caution, because it is far from certain that the abdication of Edward VIII and the accession of George VI to the throne brought about an amendment to the British rules of succession. Why is that? [ 87 ] Section 1(1) of the Act to give effect to his Majesty’s declaration of abdication provides that as soon as the instrument of abdication signed by Edward VIII receives Royal Assent, he ceases to be King, which results in the transfer of the Crown (“demise of the Crown”).

The text then deals with the successor, stating that “ accordingly the member of the Royal Family then next in succession to the Throne shall succeed thereto and to all the rights, privileges, and dignities thereunto belonging”. [41] Section 1(2) prevents King Edward VIII and his descendants from succeeding to the throne and specifies: “and

section one of the Act of Settlement shall be construed accordingly”. [42] [ 88 ] There is no indication that this statute altered the rules of succession described in the Act of Settlement . First, by abdicating and transferring his Crown (demise of the Crown), King Edward VIII was deposed and it goes without saying that his descendants could not accede to the throne. Next, the Act to give effect to his Majesty’s declaration of abdication indicates that Edward VIII’s successor, in the circumstances his younger brother George VI, is the next in succession to the throne.

This, in any event, is already provided for in the Act of Settlement . The order of succession is merely being respected and it cannot validly be argued that the rules of succession were thus altered. As Professor Mark D. Walters notes: Whether section 1(2) was legally necessary is doubtful (a point as we shall see, made by the Leader of the Opposition in Canada). Once the statute provided for a “demise” of the Crown and the accession of the person next in line to the throne, any future children of Edward (there would be none) would have been excluded automatically.

It is arguable, then, that the Abdication Act did not alter the law of succession to the throne at all but merely advanced the Crown one step through the existing line of succession before it would otherwise have done so. [43] [ 89 ] The appellants’ ground of appeal based on the precedent created by the abdication of King Edward VIII is unfounded.

The particular context of the abdication and the absence of intention on the part the Parliament of Canada to incorporate the British rules of royal succession into its domestic law are sufficient to establish that the trial judge’s intellectual stance contains no reviewable error. In

addition, the approach used by the Canadian Parliament may have been superfluous given that the Imperial Parliament did not formally amend its own rules of succession. 5.2 Did the judge err by concluding that the British rules of succession to the throne do not form part of the “office of the Queen” of Canada? [ 90 ] The appellants argue that the British rules of royal succession are part of the “office of the Queen” protected in s. 41(

a) of the Constitution Act, 1982 . According to them, the office includes the rules for designating the head of state, the status and role of the monarch and some of his powers, including the principle of a hereditary Protestant royal succession with male preference primogeniture. [ 91 ] Relying on the opinion of Professors Benoît Pelletier and Andrew Heard, the judge determined that the “office of the Queen” refers to the powers, status and constitutional role of the monarch in the Canadian Constitution.

He distinguished this concept from the rules of succession that [ translation ] “refer to the person who occupies the position of Queen or King of the United Kingdom”. [44] He was of the opinion that the constitutional protection set forth in the first paragraph of s. 41 of the Constitution Act, 1982 is designed to protect the powers, status and role conferred upon the monarch and that an amendment to the British rules of succession has no effect on these attributes. [45] [ 92 ] The Court agrees with this statement by the trial judge. Simply put, s. 41(

a) of the Constitution Act, 1982 protects the institution of the monarchy, not the procedural rules by which a person accedes to the throne. The amendments made by the British Parliament to the rules of royal succession did not have any impact on the “office of the Queen” in Canada. The 2013 Canadian Assent Act did not alter the powers, status or constitutional role devolved upon the Queen. Thus, it did not pertain to the “office of the Queen”. 5.3 Does the 2013 Canadian Assent Act infringe the freedom of conscience and religion enshrined in s. 2(

a) of the Canadian Charter of Rights and Freedoms ? [ 93 ] Subsidiarily, the appellants argue that the prohibition against Catholics holding the office of Queen is discriminatory and infringes freedom of religion and the state’s duty of religious neutrality. [ 94 ] The following are the relevant sections of the Canadian Charter : 2. Everyone has the following fundamental freedoms: (

a) freedom of conscience and religion; […] 15.

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 2. Chacun a les libertés fondamentales suivantes:

a) liberté de conscience et de religion;; […] 15.

(1) La loi ne fait acception de personne et s’applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe, l’âge ou les déficiences mentales ou physiques. [ 95 ] The judge did not commit an error with respect to religious discrimination.

He concluded that Canada does not have rules of succession to the throne save for the unwritten constitutional principles of symmetry and hereditary succession determined by the United Kingdom.

Since the rule of symmetry did not have the effect of incorporating the 2013 British Act into Canadian law, the Canadian Charter cannot apply thereto. 5.4 Does the 2013 Canadian Assent Act infringe s. 133 of the Constitution Act, 1867 and s. 18 of the Constitution Act, 1982 dealing with the obligation to enact laws in both of Canada’s official languages? [ 96 ] According to the appellants, the purpose and effect of the implementation of the Perth Agreement was to incorporate the 2013 British Act into Canadian law, without an official French version having been enacted.

They argue that this is contrary to the obligation of bilingualism provided for by the combined effect of s. 18 of the Constitution Act, 1982 and s. 133 of the Constitution Act, 1867 . [46] [ 97 ]

Section 133 of the Constitution Act, 1867 reads as follows:

133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec. The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages. 133.

Dans les chambres du parlement du Canada et les chambres de la législature de Québec, l’usage de la langue française ou de la langue anglaise, dans les débats, sera facultatif; mais dans la rédaction des archives, procès-verbaux et journaux respectifs de ces chambres, l’usage de ces deux langues sera obligatoire; et dans toute plaidoirie ou pièce de procédure par-devant les tribunaux ou émanant des tribunaux du Canada qui seront établis sous l’autorité de la présente loi, et par-devant tous les tribunaux ou émanant des tribunaux de Québec, il pourra être fait également usage, à faculté, de l’une ou de l’autre de ces langues.

Les lois du parlement du Canada et de la législature de Québec devront être imprimées et publiées dans ces deux langues. [ 98 ] Furthermore, s. 18 of the Constitution Act, 1982 provides as follows: 18.

(1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative. […] 18.

(1) Les lois, les archives, les comptes rendus et les procès-verbaux du Parlement sont imprimés et publiés en français et en anglais, les deux versions des lois ayant également force de loi et celles des autres documents ayant même valeur. […] [ 99 ] The trial judge committed no error regarding the obligation of bilingualism because, based on his logic, the 2013 British Act was not incorporated into Canadian law. Consequently, it was not necessary to present an official French version of that statute. In any event, as the judge pointed out, the 2013 Canadian Assent Act was enacted in French and in English.

Furthermore, when the bill was tabled, a French version of the draft 2013 British Act , prepared by the Department of Justice of Canada, was filed in the House of Commons. [47] This reflects Canada’s obvious concern to comply with its obligations regarding bilingualism. [ 100 ] That being said, I would dismiss the appellants’ appeal, with legal costs. JOCELYN F. RANCOURT, J.A.