Inside Politics

Royal baby bill 'no harm and no foul'... but 'almost servile'?

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Boy or girl, the first-born child of the Duchess of Cambridge, expected in July, will be in direct line to become Canada's king or queen. (Toby Melville/Reuters)

On Monday evening, Marjory LeBreton, the Government Leader in the Senate, tried to ease fears expressed at a Senate committee last week that Canada might be about to buy a pig in a poke: assenting to British legislation to change the rules for the royal line of succession before the final wording of that law is set in stone.

"Barring something highly unusual... the substance of the U.K. bill cannot be amended at this point," LeBreton said of the U.K. bill awaiting third reading in the House of Lords April 22.

C-53 was reported back from committee and debate on third reading was adjourned.

Quebec Liberal Senator Joan Fraser repeated the point she made in committee last Thursday: noting again that the wording of Canada's bill describes assenting to the bill "laid before" Parliamentarians at Westminster, instead of a legislation "as passed" in the U.K.

"The bill was amended in the House of Commons in London... It is a substantive and excellent amendment, clarifying the position of children of the people in the line of succession to the throne who marry twice," Fraser reminded the Senate.

"It strikes me that there is something not in law perhaps but in spirit -- something almost servile -- about saying we will assent to whatever they do at Westminster," she concluded. "These things do not happen very often but next time, I truly hope we do a better job."

Liberal Senators are expected to speak again and may yet propose changes at third reading during the bill's final hours of debate this week.

Last Wednesday, the Senate legal and constitutional affairs committee heard from two academics with constitutional expertise: Andrew Heard from Simon Fraser University and Benoit Pelletier from the University of Ottawa, as well as two representatives from the Canadian Royal Heritage Trust.

Their reviews for the legislation were far from a ringing endorsement, although none urged major amendments to the bill.

Australian and New Zealand's approach better?

Heard explained to the committee how Australia and New Zealand's approach to reforming the monarchy will have the effect of creating distinct Royal Families for those two Commonwealth countries, instead of simply seeing the U.K.'s monarch as their own.

Nevertheless, Heard said that despite some legal precedence that could suggest the contrary, his view was that the British monarch is automatically the Canadian head of state.

The idea of Queen Elizabeth being the Queen of Canada is a "political notion," not a legal one, Heard explained, because the office of the monarch in Canada is a "limited construction" based only on the Queen's role in Canada's political system. 

Unlike other commentators, Heard says neither the 1953 legislation that gave Queen Elizabeth the title of "Queen of Canada," nor the repatriation of the Constitution in 1982, gave Canada its own monarch unique from the United Kingdom's.

On Monday night, Fraser was still reflecting on the legal debate Heard outlined in his testimony.

"It would have been infinitely preferable if Canada had done what I understand Australia and New Zealand are doing. Instead of passing a bill to assent to another parliament's legislation, they are passing their own, standalone legislation," Fraser said.

Both academics portrayed C-53 as being of political and symbolic value -- a "nicety," Heard called it -- more than a constitutional or legal requirement for Canada to change the rules around who can become its head of state. 

Pelletier said that although arguments remain in favour of needing a Canadian law to enact changes to the royal line of succession, he supports the Harper government's approach.

Need to consult provinces?

Pelletier's testimony also noted a view held by some that provincial governments should have been included in the changes, because they have their own distinct relationship with the office of the Queen through provincial lieutenant governors and the Crown's role in providing final assent to provincial legislation in areas of provincial jurisdiction.

When C-53 was introduced on Jan. 30, Heritage Minister James Moore said that the Harper government had signalled what it was going to do back in 2011, and although provinces were free to raise their opposition to the changes in the months since "none have spoken."

"It would have been a good thing [to consult with the provinces] as a courtesy," Pelletier said during his committee testimony, while noting he could see no legal obligation for the federal government to consult or obtain the permission of the provinces.

"The provinces did not react," Pelletier said.

Although both the Bloc Québécois in Ottawa and Quebec's Parti Québécois government expressed an initial disappointment at the lack of consultation, they have not mounted any significant objection to the bill's progress in the weeks since.

C-53 not enough?

The Canadian Royal Heritage Trust told senators that based on its view of the legal precedents, Canada should change or add to its own domestic law of succession from 1936's abdication crisis, not merely agree to the U.K.'s changes. 

The group's executive director Garry Toffoli said in his testimony last Wednesday that C-53 provides only a "courtesy assent."

"The bill may be passed as it is because there is no harm and no foul," Toffoli said.

"But if the purpose of the Parliament is to change the rules of succession for Canada, then the bill also provides no goal," he said, adding that if a different approach had been taken it would be open for debate whether Parliament needs to consult with the provinces on a constitutional amendment.

"Liberalizing" access to the office of the Queen affects the office, the trust's vice-chairman Paul Benoit told the committee.

"We have to do something else beyond just assenting," he said. "We have not been through the process of consent yet. And since 1982 we have established a formula for going through that process which we have to confront now."

The group also said the wording of the bill could be improved in at least one place between its English and French versions. The committee noted that this kind of a wording fault might have been avoided if the House of Commons had done its own clause-by-clause review.

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