Law grad plans appeal after royal succession challenge dismissed

A Superior Court judge may have told him he doesn’t have standing to challenge the royal succession rules, but a recent law graduate says he’s not giving up his fight against a provision that bars Catholics from ascending to the throne.

Last month, Superior Court Justice Charles Hackland said the court doesn’t have jurisdiction to alter the rules and Bryan Teskey can’t argue the case because, in essence, he can’t become king anyhow.

“He deposes that he is a member of the Catholic faith but that appears to be his only interest in the issues raised in this application. He has no connection to the Royal Family,” wrote Hackland in Teskey v. Canada (Attorney General) last month.

“He raises a purely hypothetical issue which may never occur, namely a Roman Catholic Canadian in line for succession to the throne being passed over because of his or her religion. Should this ever occur, a proper factual matrix would be available to the court to deal with a matter of this importance.”

But for Teskey, who grew up in a “very Catholic” home, the issue is an important one that sets “a dangerous precedent.”

“It says politicians can choose who gets rights. It’s very odd that the government of Canada says Catholics and only Catholics cannot become heads of state,” says Teskey, a recent University of Ottawa law graduate.

In a 2011 meeting, leaders of 16 Commonwealth nations decided to change two discriminatory rules for succession. They agreed “to end the system of male preference primogeniture under which a younger son can displace an elder daughter in the line of succession” and “to remove the legal provision that anyone who marries a Roman Catholic shall be ineligible to succeed to the Crown.”

But even the altered rule, which received royal assent in Canada in March, doesn’t say a Catholic could ascend to the throne. Dressed in a grey suit and a matching tie, Teskey talks passionately about the significance of the rules binding Canada as a constitutional monarchy.

“Just because something is symbolic and complex, it doesn’t mean it’s not important,” he says.

He adds: “Even the idea, for example, that black people can’t ride in the front of the bus, is there a right being denied there? Is there an economic harm suffered? No. Is it very, very symbolic? Yes. Is it very powerful? Yes.”

While he admits he may not be the ideal person to take the issue to court, Teskey says he should still have standing to argue it as a Catholic. In the meantime, he’s looking for senior lawyers to help him appeal the matter.

For his part, Hackland found Teskey was asking him to change the Constitution instead of protecting it.

“In the present case, the applicant submitted an argument that Canada could and should adopt different succession rules from those which pertain in Great Britain with the possibility of recognizing a different monarch,” wrote Hackland, who rejected that argument.

Lawyer Peter Rosenthal, who has previously acted for people who refused to the take the citizenship oath, says Teskey has a valid argument.

The rule has implications for Catholics in Canada in the sense that “it suggests they are of a lesser value somehow,” according to Rosenthal.

Rosenthal says he doesn’t agree with Hackland’s decision that Teskey didn’t have standing. “I think Mr. Teskey should have standing as a Catholic person whose religion is slighted by this fact about the head of state,” he says.

The court in Teskey found that succession rules had constitutional status, which means it can’t use the Charter of Rights and Freedoms to amend it. But Rosenthal suggests the succession rule doesn’t appear to have constitutional status and therefore the Charter should trump it.

Rosenthal is unsure why authorities didn’t entirely eliminate the limitation against Catholics when they amended the rules. “The king or queen, by the virtue of that office, is also the head of the Anglican church,” says Rosenthal. “So maybe they’re thinking they don’t want a Catholic head of the Anglican church. I’m not sure why . . . but I agree with Mr. Teskey that it should be unconstitutional to have that limitation.”

Teskey isn’t the only person to challenge the government on the succession rules following the swift approval of the recent amendments. Two University of Laval professors, Geneviève Motard and Patrick Taillon, also launched a challenge in Quebec that argues the changes are unconstitutional and in violation of the Charter for various reasons.

The religious requirement is one issue Motard and Taillon have raised with the altered succession rules. They also say the prime minister didn’t receive approval from all provinces as is necessary with constitutional amendments.

Quebec lawyer André Binette, who’s representing the professors, says it’s unlikely his clients’ challenge will have similar outcome to Teskey’s. “On the issue of standing and justiciability, we’re in a stronger position than Mr. Teskey because the two law professors that we represent will be perceived by the court as representing the public interest in a way a private citizen may not be.”

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