James W. J. Bowden (of Parliamentum fame) has co-authored an interesting article with Philippe Lagassé that contends that the Canadian Crown’s status as a corporation sole could render the Succession to the Throne Act 2013 unconstitutional. I’ve discussed these arguments before on my personal blog, but the article still makes for interesting reading.
In a nutshell, their contention is that the succession to the Canadian Throne can only be changed by a constitutional amendment. Section 41 of the Constitution Act 1982 states that amendments relating to “the office of the Queen” must be made by a proclamation of the Governor General following resolutions of both Houses of the federal Parliament as well as the Legislative Assemblies of each province. The Canadian government argues that changes to the succession don’t affect “the office of the Queen” (i.e. only amendments that touch upon her rights and privileges as Sovereign of Canada are subject to the requirements of section 41), but Lagassé and Bowden argue that the Crown’s status as a corporation sole makes it impossible to draw a distinction between succession to the office and the office itself.
Even if you don’t believe that a constitutional amendment is necessary to change the succession, the Succession to the Crown Act 2013 is still problematic. The act only has one substantive provision:
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.
This provision is modeled after the Succession to the Throne Act 1937 (Can) by which the Canadian Parliament ratified the Cabinet’s consent to His Majesty’s Declaration of Abdication Act 1936 (UK). But the constitutional landscape is much different than it was in 1937. In 1982, the United Kingdom Parliament passed the Canada Act 1982, which terminated their remaining legislative authority over Canada. Since a British statute cannot extend to Canada, the core of the Canadian Succession to the Throne Act 2013 seems legally unsound.
This might seem like a purely academic question, but the validity of the act is currently being challenged in the Canadian courts. If the courts strike it down, the other Commonwealth Realms won’t be able to implement the succession changes until Canada sorts things out.