Parliament made many people unhappy when it enacted the Succession to the Throne Act, S.C. 2013 c. 6, “assent[ing] to” the British legislation allowing a woman to succeed to the Crown despite having a younger brother, or a person to succeed to the Crown despite being married to a Catholic. Among those unhappy was one Bryan Teskey, who rushed to challenge the law ― which has not yet come into force ― before the Superior Court of Ontario, on the basis that by not allowing a Catholic to succeed to the throne, the legislation infringed the equality guarantee of s. 15 of the Canadian Charter of Rights and Freedoms. Last week, the Court dismissed his challenge, in Teskey v. Canada (Attorney General), 2013 ONSC 5046, an interesting but, in my view, flawed, albeit ultimately correct, decision, Justice Hackland holding that Mr. Teskey’s challenge failed because it was not justiciable and because Mr. Teskey lacked standing to bring it.
The matter is not justiciable, says Justice Hackland, because the rules of royal succession are part of the Constitution, and one part of the Constitution cannot be used to challenge another. Justice Hackland points out that
[t]he prohibition against Catholics succeeding to the throne has been part of our law since the Act of Settlement, 1701. This Act itself is an imperial statute which ultimately became part of the law of Canada.
And, in a prior challenge to the constitutionality of this prohibition, O’Donohue v. Canada, the Superior Court of Ontario had held (as summarized by Justice Hackland)
that the rules of succession are essential to the proper functioning of the monarchy and are therefore, by necessity, incorporated into the Constitution of Canada. The structure of the Canadian Constitution as a constitutional monarchy … and the principle of sharing the British monarch, are fundamental to our constitutional framework with the result being that the rules of succession must be shared and in symmetry with those of the United Kingdom and other Commonwealth countries. (Par. 12)
Because the Charter cannot be used to abrogate or modify another part of the constitution, the case is simply not one that a court can entertain.
Furthermore, says Justice Hackland, Mr. Teskey lacks standing to challenge the Succession to the Throne Act. The Act obviously does not affect his own rights. Nor can he have public interest standing. His claim is not justiciable; it is not clear what his own interest in the matter is; and the issue he raises is purely hypothetical and lacks a proper factual matrix that could help the court address it. Mr. Teskey challenge thus cannot go forward.
This may well be the right result. On the issue of standing, it is, indeed, unclear whether Mr. Teskey, who represented himself, is an appropriate person to raise such a serious constitutional challenge. And Justice Hackland’s conclusion that royal succession is part of the constitution, and thus cannot be subject to the Charter is arguably correct ― but things are not so simple as he would have us believe.
First, though, a terminological quibble. I think that Justice Hackland is wrong to describe the argument that this case involves an attempt to apply the Charter to another part of the constitution as being about justiciability. Justiciability 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 ― as indeed it is, a point to which I will come back shortly.
Now to the substance of Justice Hackland’s reasoning. He argues (as did Justice Rouleau in O’Donohue) that the rules of royal succession are part of the constitution because they were codified in the Act of Settlement, 1701, which, in turn, is somehow incorporated into the Canadian constitution by the Preamble of the Constitution Act, 1867, which refers to a “Dominion under the Crown of the United Kingdom of Great Britain and Ireland.” Actually, it is not at all clear that the Act of Settlement is really part of the constitution of Canada. The Supreme Court has never said it was, despite having ample opportunity to do so when discussing judicial independence, which the same Act first established in the United Kingdom. The Act of Settlement informs the interpretation of the constitution, including its underlying principles, but it is not clear that it is part of the constitution.
However, this might not matter much, because the rules of succession to the throne are arguably incorporated into the constitution not (only) through the Preamble of the Constitution Act, 1867, but by the entrenchment, in s. 41(a) of the Constitution Act, 1982, of “the office of the Queen.” Though the precise scope of the term “office” is not exactly clear, it 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. Justice Hackland, may well be right ― but not for the reasons he gave.
His being right, however would have interesting implications. If it is indeed the case that the rules of royal succession are part of the constitution of Canada, then it should follow that changing them requires a constitutional amendment. If these rules are part of “the office of the Queen,” then s. 41(a) of the Constitution Act, 1982, requires requires unanimous provincial consent to their amendment. This, I take it, is the substance of another constitutional challenge to the Succession to the Throne Act, launched by a group of academics and supported by the government of Québec. It may well be that, in dismissing one such challenge, Justice Hackland has given additional ammunition to another.