Ontario Civil

Constitutional Law

Rules of succession not subject  to Charter scrutiny

Applicant brought application for declaration that Constitution Act, 1982, prevented Canada from consenting to legislation passed by Parliament in United Kingdom to change rules of succession for Crown. At meeting in Australia, Prime Ministers of 16 commonwealth nations that recognized Queen as head of state, including Canada, agreed in principle that they would work to bring forward necessary measures to give effect to two changes to rules governing succession to throne. First, was to end system of male preference where younger son could displace older daughter in line of succession. Second, was to remove legal provision that anyone who married Roman Catholic should be ineligible to succeed to Crown. United Kingdom government drafted bill and government of Canada confirmed it was in agreement with bill. Bill was passed and received royal assent. Succession to the Throne Act, 2013 (Can.), would be proclaimed. Applicant relied on Canadian Charter of Rights and Freedoms, to challenge long-standing rule that prohibited Catholics and those married to Catholics from becoming monarchs. Applicant objected to proposed changes to royal succession rules that left rule in place. Applicant sought declaration that all legislative provisions or rules that prohibited Catholics and those married to Catholics from ascending to Crown of Canada were of no force and effect. Application dismissed. Court was bound by O’Donohue v. Canada (2003), 124 A.C.W.S. (3d) 63 (Ont. S.C.J.), aff’d (2005), 137 A.C.W.S. (3d) 1131 (Ont. C.A.), which held that rules of succession and requirements that they be same as Great Britain were necessary for proper functioning of constitutional monarchy. Rules of succession were not subject to Charter scrutiny and were not justiciable in sense that they were beyond review jurisdiction of court. Applicant also lacked standing.

Teskey v. Canada (Attorney General) (Aug. 9, 2013, Ont. S.C.J., Charles T. Hackland R.S.J., File No. Ottawa 13-56569) 231 A.C.W.S. (3d) 950.

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