Challenging Succession, Round 2

Yesterday, in Teskey v. Canada (Attorney General), 2014 ONCA 612, the Court of Appeal for Ontario rejected a Charter challenge to the Succession to the Throne Act, 2013, a law that purports to “assent[] to” the changes to the rules of royal succession laid out in a British bill (and agreed to by the heads of government of the Commonwealth). This decision upholds the one issued by the Superior Court of Justice last year, about which I wrote here. In my view, like that decision, that of the Court of Appeal may well reach the correct outcome, although its reasoning is deeply flawed. And to the extent that it is correct, it only strengthens a different challenge to the Succession to the Throne Act.

The appellant, who represented himself (as he had done at first instance), argued that the continued exclusion of Catholics from the line of succession, which the Succession to Throne Act does nothing to address, infringes the equality rights guaranteed by the Charter. But, like the Superior Court, the Court of Appeal concludes that the case

does not raise justiciable issues and that Mr. Teskey lack[s] standing to bring the application. The rules of succession are a part of the fabric of the constitution of Canada and incorporated into it and therefore cannot be trumped or amended by the Charter, and Mr. Teskey does not have any personal interest in the issue raised (other than being a member of the Roman Catholic faith) and does not meet the test for public interest standing.

I agree with the Court on the matter of standing. Even under the relaxed public interest standing test, a claimant’s capacity to develop his argument in a manner that will be helpful to the court is a relevant consideration, and it’s not clear that Mr. Teskey had such a capacity; nor is it clear, as the Court says, what his interest in the issue is.

However, there are several problems with the Court’s reasoning. One is that, assuming that the Succession to the Throne Act is not subject to the Charter because succession rules “are incorporated into [the Constitution] and therefore cannot be trumped” by it, this is not a matter of “justiciability.” As I explain in my post on the decision at first instance,

[j]usticiability is a slippery concept, but it has to do with a court’s ability to answer the sort of question at issue in a case. The question here is the constitutionality of an Act of Parliament ― something the courts deal with all the time. Even if the Charter does not apply to that Act of Parliament, that does not mean that its constitutionality could not be called into question in a judicial proceeding, albeit on a different basis.

An issue that does go to justiciability, at least in a broad sense, is whether the Court can address a constitutional challenge to a statute which has not even been proclaimed into force. I’m not aware of any such case, and I have serious doubts about a court’s power to entertain such a challenge ― but here, the Court of Appeal does not even raise this question.

And then, there is the matter of the grounds for the Court’s assertion that the rules of succession are a part of the Constitution. The Court doesn’t explain why this is so ― yet these rules are certainly not an explicit part of any enactment which s. 52 of the Constitution Act, 1982 lists as being part of the Constitution.

The Court’s assertion is, however, probably correct because, I wrote last year, the “office of the Queen” entrenched by par. 41(a) of the Constitution Act, 1982, “arguably includes the rules on who can come to hold that office from time to time, at least in a case where, like with the monarchy, these rules are, arguably again, its defining characteristic.” Since then, the Supreme Court has held, in L’affaire Nadon, that the “composition” of the Supreme Court (entrenched by a different paragraph of s. 41) includes the eligibility criteria for judges, a conclusion which I think suggests (although probably does not require) that the phrase “the office of the Queen” should also be interpreted to include eligibility criteria.

But if the rules of succession to the throne are indeed “a part of the fabric of the constitution of Canada and incorporated into it and therefore cannot be trumped or amended by the Charter,” it follows that, a fortiori, they cannot be amended by an ordinary act of parliament, such as the Succession to the Throne Act. If they are part of the constitution, they must be changed by a constitutional amendment. If I am right that they are part of the constitution by virtue of par. 41(a) of the Constitution Act, 1982, this amendment requires the unanimous consent of the provinces. I take it that Mr. Teskey did not make this argument, and that the Court could therefore not consider it, but it is at the heart of a challenge launched by a group of constitutional law professors in Québec. Like the Superior Court before it, the Court of Appeal has given that challenge additional ammunition. When it is finally heard ― not before next summer, apparently ― it will become clear that, just like with its Senate reform project, and the appointment of Justice Nadon, the federal government chose to take a shortcut to avoid formal constitutional amendment ― and has ended up violating the constitution.

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