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Tony O'

COURT FILE NO.: 01-CV-217147CM

DATE; 2003-06-26






Applicant  James C Morton for the Applicant







Vanessa Yolles

for the Respondent Her Majesty the

Queen in right of Ontario


Christine Mohr

Joseph K . Cheng

for the Respondent Her Majesty the

Queen in right of Canada

HEARD: April 17, 2003


[1] The applicant. Tony O’Donohue, has brought the present application for a declaration that certain provisions of the Act of Settlement, 1710, are of no force or effect as they discriminate against Roman Catholics in violation of the equality provisions of the Canadian Charter of Rights and Freedoms. Pursuant to the order of Mr. Justice Spiegel dated May 29, 2002. only the issues of standing and justiciabilitv are to be dealt with at this point. Should I grant the applicant standing and find justiciabilitv the matter will proceed to be heard on the merits; if not, the application will be struck.


[2] Mr. O’Donohue is a Canadian citizen and a Roman Catholic. He believes that certain provisions of the Act of Settlement are clearly discriminatory against Roman Catholic people and offensive to the Roman Catholic faith. For many years he has tried, through various political means, to have the Act of Settlement changed. He has had no success,

[3] The Act of Settlement is an imperial statute adopted by the United Kingdom in 1701. By its terms it provides that it is an act "established and declared" in the "Kingdoms of England, France and Ireland, and the dominions thereunto belonging". As a result it became and remains part of the laws of Canada.

[4] The Act of Settlement contains several provisions but one in particular addresses the difficult succession issues that led to civil war in England in the latter part of the 17th century. This provision in effect provides that Roman Catholics cannot accede to the Crown of England, nor be married to someone who holds the Crown. The statute provides, in part, as follows:

And it was thereby further enacted, that all and every person and persons that then were. or afterwards should be reconciled to, or shall hold communion with the see or Church of Rome, or should profess the popish religion, or marry a papist, should be excluded, and are by that Act made for ever incapable to inherit, possess or enjoy the Crown and government of this realm, and Ireland, and the dominions thereunto belonging, or any part of the same, or to have, use, or exercise any regal power, authority, or jurisdiction within the same: and in all and every such case and cases the people of these realms shall he and are thereby absolved of their allegiance; and that the said Crown and government shall from time to time descend to and be enjoyed by such person or persons, being Protestants, as should have inherited and enjoyed the same, in case the said person or persons, so reconciled, holding communion, profession or marrying, as aforesaid, were naturally dead.

[5} Mr. O’Donohue brings the present application to have those parts of the Act of Settlement, insofar as they refer to Roman Catholics and limit their rights, declared to be in breach of s. 15(1) of the Canadian Charter of Rights and/Freedoms and of no force or effect. Since he is not directly affected by this legislation he also seeks public interest standing to bring the application. As directed by the Order Mr. Justice Spiegel, this motion will deal with the issues of public interest standing and justiciability.


[6] The Supreme Court of Canada in Canadian Council of Churches v Canada (Minister of Employment and Immigration). [19921 1 5CR. 236 at p. 253 set out three areas of consideration when deciding whether to grant public interest standing. They are as follows:

1. Is there is a serious issue raised as to the invalidity of the legislation in question;

2. Has it been established that the applicant is directly affected by the legislation or if not does the applicant have a

genuine interest in its validity: and,

3. Is there another reasonable and effective way to bring the issue before the court.

[7] The decision whether to grant public interest status is a discretionary one and the applicant bears the onus of demonstrating that the requirements for granting public interest standing have been met (see [{Hy and Zel' s Inc. et al v Ontario (Attornev General). [193) 3 SCR. 675 at 688).



[8] The purpose of granting public interest standing is to prevent the immunization of legislation or public acts from challenge. In the present case Mr. O’Donohue maintains that no one in Canada is likely to be affected by the Act of Settlement, and in that sense it is only by granting him public interest standing that the matter will come before the courts. The suggestion that someone may challenge the legislation in England is of little or no relevance given that it is the Act of Settlement as a Canadian statute that is being challenged and that the challenge is based on the Canadian Charter of Rights and Freedoms which does not apply in England. In Mr. O’Donohue’s submission there is no other reasonable and effective manner by which the issue can he brought before the courts (see Canada v. Borowski, [1981] 2 S.C.R. 575 at 598).

[9] The respondents maintain that the application should he struck at this stage as it is not justiciable and the criteria for granting public interest standing have not been met.

[10] While the respondents argue that the applicant has satisfied none of the three considerations listed in Canadian Council of Churches, supra, their submissions focus principally on the first of these, whether there is a serious issue to be tried. Their position in this regard is that there is no serious issue to be tried since:

1. The issues are not justiciable;

2. The issues raised are purely hypothetical and speculative; and

3. The remedy sought will have no practical effect since it cannot affect the legislation in the United Kingdom.

[1I] The respondents also maintain that the applicant does not have a genuine interest in the issue and that the matter would more properly be brought before the English courts.

[12] The Order of Mr. Justice Spiegel directed that, in addition to standing, the issue of justiciability he dealt with as part of the present motion. Since justiciability is a component of the public interest standing analysis it will he incorporated as part of that analysis,


i) Introduction

[13] As stated by Dickson C.J.C. in Canada (Auditor General v. (Canada Minister of Energy, Mines and Resources), [1989] 2 5CR. 49 at 90-91, the determination of whether a matter is justiciable "is, first and foremost, a normative enquiry into the appropriateness as a matter of constitutional judicial policy of the courts deciding a given issue or, instead, deferring to other decision-making institutions of the polity.’ Dickson C.J.C. recognized that "there is an array of issues which calls for the exercise of judicial judgment on whether the questions are properly cognizable by the courts. Ultimately, such judgment depends on the appreciation by the judiciary of its own position in the constitutional scheme."

[14] The constitutional scheme of our democratic government consists of four branches: the Crown, the legislative body, the executive and the courts. As set out in New Brunswick Broadcasting Co. v Nova Scotia (Speaker of the House of Assembly). [1993] 1 S.C. R. 319 at 389, "it is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other."

[15] In the present case all parties acknowledge that if the impugned portions of the Act of Settlement have constitutional status then the matter is not justiciable. It is well settled that the Charter cannot be used to amend or trump another pad of our constitution (See Reference Re Bill 30, an Act to amend the Education Act (Ontario), [1987] S.C.R. 1148 at 1197 and New Brunswick Broadcasting Co. v Nova Scotia, supra at 373).

[16] The respondents maintain that even if the impugned provisions of the Act of Settlement are not part of the Constitution, they clearly are part of the Rules of Succession. They argue that a finding that the Rules of Succession are justiciable would run contrary to the intent of Parliament and constitutional convention among the Commonwealth nations, and would he beyond the proper role of the courts within our constitutional framework.

ii) Constitutional Status of the Monarchy

[17] The impugned portions of the Act of Settlement are a key element of the rules governing succession to the British Crown. They were enacted following a long period of civil and religious strife. They confirmed that only the Protestant heirs of Princess Sophia, the Electoress of Hanover, are entitled to assume the throne. The Act of Settlement together with other statutes establish the legitimate heir to the British Crown. (Sec also Bill of Rights of 1689, (Eng.) 1 Will. & Mar. sess.2. c) Crown and Parliament Recognition Act, 1689, (Eng.) 2 Will. & Mar. chap.2; Act of Union (Scotland), 1706, chap. 7, Article ii; Union with England, 1706, chap 7, Article 11 Treaty of Union (Ireland), 1800, chap.67. Article 11; Accession Declaration Act, 1910, (U.K.) chap.29; Coronation Oath Act, 1688, (Eng.) 1 Will. & Mar. chap.6, s. 3.)

[18] Canada was established as a constitutional monarchy. This fundamental aspect of our constitutional structure is both recognized and maintained by the Constitution Act, 1982, being Schedule B to the Canada Act /982 (U.K.) 1982. c.l1. It is found, among other p]aces. in the preamble to the Constitution.

[19] It is well recognized that the preamble to the Constitution identifies the organizing principles of our Constitution and can be used to fill in gaps in the express terms of the constitutional text (see Reference re Remuneration of Judges of the Provincial Court of PEI, [1997] 3 SCR. 3 at p. 75).

[20] The preamble to the Constitution Act, 1867 (U.K.) 30 & 31 Victoria, c.3, as amended, provides as follows:

Whereas the Provinces of Canada. Nova Scotia, and New

Brunswick have expressed their Desire to be federally united into

One Dominion under the Crown of the United Kingdom of Great

Britain and Ireland, with a Constitution similar in Principle to that

of the United Kingdom….

[21] This portion of the preamble confirms not only that Canada is a constitutional monarchy, but also that Canada is united under the Crown of the United Kingdom of Great Britain. A constitutional monarchy, where the monarch is shared with the United Kingdom and other Commonwealth countries, is, in my view, at the root of our constitutional structure.

[22] The role of the Queen is provided for in s. 9 of the Constitution Act, 1867, which reads as follows:

9. The Executive Government and Authority of and over Canada is hereby declared to continue and he vested in the Queen.

[23] The office of the Queen is such a fundamental part of our constitutional structure that amendments to the Constitution in respect of that office require the unanimous consent of the federal and provincial governments (see s.41(a) of the Constitution Act, 1982).

iii) The rules of succession are essential to the proper functioning of the monarchy

[24] Since the Queen occupies such a central place in the Canadian Constitution, the respondents submit that the rules governing the succession to the throne are themselves essential to the proper functioning of this branch of our constitutional scheme. In the result, these rules arc by necessity incorporated into the Constitution of Canada.

[25] In New Brunswick Broadcasting Co. v. Nova Scotia, supra, the Supreme Court of Canada dealt with the issue of unwritten concepts being imported into our constitutional regime. In that ease the issue was whether the exercise of parliamentary privilege to prohibit the use of television cameras in the Nova Scotia House of Assembly was subject to Charter scrutiny. The Court determined that parliamentary privilege fell within the group of principles constitutionalized by virtue of the preamble, and was therefore not subject to Charter scrutiny. Writing for the majority, Madam Justice McLachlin (as she then was) addressed the argument that since by virtue of the Constitution Act, 1982 Canada has reduced to writing the constitutional structure under which the country is to operate, caution should he exercised in the recognition of unwritten or unexpressed constitutional powers. She confirmed that a cautious approach should he taken but went on to say at p.377:

I do not understand the entrenchment of written rights guarantees, or the adoption of specific written instruments, to negate the manifest intention expressed in the preamble of our Constitution that Canada retain the fundamental constitutional tenets upon which British parliamentary democracy rested. This is not a case of importing an unexpressed concept into our constitutional regime, but of recognizing a legal power fundamental to the constitutional regime, which Canada has adopted in its Constitution Acts,1867 to1982.

[26] The Supreme Court of Canada then went on to find that the legislature of Nova Scotia was recognized in the written constitution and, since the preamble stated that our Constitution was modeled on the Parliament of the United Kingdom, that it should possess those inherent constitutional privileges necessary for the efficient operation of the legislative body. Although those powers and privileges were not made part of the written constitutional text, the Court found that they fell within the group of principles constitutionalized by virtue of the preamble. They were concepts necessary to give effect to the intention expressed in the Constitution itself It followed, therefore, that decisions made pursuant to these powers and privileges were not subject to Charter challenge. In other words, if the power to control attendance in the legislature is a privilege necessary for the proper functioning of the legislature, the courts cannot enter into an inquiry as to whether exercises of that power accord with the Charter.

[27] Applying that reasoning to the present case, it is clear that Canada’s structure as a constitutional monarchy and the principle of sharing the British monarch are fundamental to our constitutional framework. In light of the preamble’s clear statement that we are to share the Crown with the United Kingdom, it is axiomatic that the rules of succession for the monarchy must be shared and be in symmetry with those of the United Kingdom and other Commonwealth countries. One cannot accept the monarch but reject the legitimacy or legality of the rules by which this monarch is selected.

[28] By analogy with the facts in New Brunswick Broadcasting Co. v. Nova Scotia, supra, the rules of succession areas essential to the proper functioning of the shared monarchy principle as the ability to control its proceedings is to the proper functioning of the Nova Scotia legislature. Neither the inherent privileges of the Nova Scotia Legislature nor the rules of succession are part of the written constitution, but they are, in my view, part of the unwritten or unexpressed constitution and are therefore not subject to the Charter.

[29] If the courts were free to review and declare inoperative certain parts of the rules of succession, Canada could break symmetry with Great Britain, and could conceivably recognize a different monarch than does Great Britain. In fact, Canada could arguably reanimate the debate regarding the heir to the throne, an argument that was resolved by the Act of Settlement. This would clearly be contrary to settled intention, as demonstrated by our written Constitution, and would see the courts changing rather than protecting our fundamental constitutional structure.

iv) The operation a/the rules a/succession within the Commonwealth

[30] The fact that the rules of succession are part of our constitutional fabric is further supported by an analysis of the way in which these rules of succession have functioned within the Commonwealth.

[31] By the Statute of Westminster, 1921 (U. K.) 22 and 23 Geo.5, c.4 the United Kingdom agreed that it would no longer impose British statutes on the Various dominions without their accord. It also provided that the British monarch would continue to be the monarch of various Commonwealth countries including Canada. In order to recognize that the United Kingdom would no longer impose British statutes on the dominions. but also to ensure that the rules of succession which had previously been imposed by the United Kingdom on those Commonwealth countries continued to he consistent, the British Parliament set out in the preamble to the Statute of Westminister the following:

And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown. it would he in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well as of the Parliaments of all the Dominions as of the Parliament of the United Kingdom:

[32] The Statute of Westminster is a part of the Constitution of Canada by virtue of it being listed in the schedule to the Constitution (Constitution Act, 1982, s. 52(2)(b)).

[33] As a result of the Statute of Westminster it was recognized that any alterations in the rules of succession would no longer be imposed by Great Britain and, if symmetry among commonwealth countries were to he maintained, any changes to the rules of succession would have to be agreed to by all members of the Commonwealth. This arrangement can be compared to a treaty among the Commonwealth countries to share the monarchy under the existing rules and not to change the rules without the agreement of all signatories. While Canada as a sovereign nation is free to withdraw from the arrangement and no longer be united through common allegiance to the Crown, it cannot unilaterally change the rules of succession for all Commonwealth countries. Unilateral changes by Canada to the rules of succession, whether imposed by the court or otherwise, would be contrary to the commitment given in the Statute of Westminster, would break symmetry and breach the principle of union under the British Crown set out in the preamble to the Constitution Act, 1867. Such changes would, for all intents and purposes, bring about a fundamental change in the office of the Queen without securing the authorizations required pursuant to s. 41 of the Constitution Act, 1982.

[34] The operation of this commitment to symmetry and union of Canada under the British Crown was demonstrated by the adoption in 1937 of the Succession to the Throne Act, I Geo. IV, c.16. This Canadian statute effected changes to the rules of succession in Canada to assure consistency with the changes in the rules then in place in Great Britain. The changes were necessary in light of the abdication of Edward VIII in 1936. Absent this Canadian statute, the statutory change in Great Britain to account for Edward V111’s abdication would have been contrary to Great Britain’s commitment in the Statute of Westminster. Arguably, without this statute, Edwards VIII’s abdication would not have been effective in respect of the Crown of Canada.

v) Adoption into Ontario Law

[35] Further support for the respondent’s position that the rules of succession (and, in particular. the Act of Settlement) have constitutional status can be found in the treatment of that Act in the Revised Statues of Ontario of 1897. The Revised Statues show two categories of imperial statutes, i.e. laws from Great Britain that apply to Ontario. The two categories are described as "constitutional acts’ and "certain imperial statutes of general practical utility in force in Ontario ex poprio vigore". The fact that the Act of Settlement was indexed among the constitutional acts is a further indication that, despite the fact that it was not listed in the Schedule to the Constitution Act, 1982. the Act of Settlement was intended to he a component of our constitutional enactments (see Revised Statutes of Ontario, 1897, vol. III. appendix Part I).


[36] The impugned positions of the Act of Settlement are an integral part of the rules of succession that govern the selection of the monarch of Great Britain. By virtue of our constitutional structure whereby Canada is united under the Crown of Great Britain, the same rules of succession must apply for the selection of the King or Queen of Canada and the King or Queen of Great Britain. As stated by Prime Minister St. Laurent to the House of Commons during the debate on the bill altering the royal title:

"Her Majesty is now Queen of Canada but she is the Queen of Canada because she is Queen of the United Kingdom. . . It is not a separate office, .it is the sovereign who is recognized as the sovereign of the United Kingdom who is our Sovereign. . ." Hansard February 3, 1953, page 1566.

[37] These rules of succession and the requirement that they be the same as those of Great Britain, are necessary to the proper functioning of our constitutional monarchy and, therefore, the rules are not subject to Charter scrutiny.

[38] In the present case the court is being asked to apply the Charter not to rule on the validity of acts or decisions of the Crown, one of the branches of our government, but rather to disrupt the core of how the monarchy functions, namely the rules by which succession is determined. To do this would make the constitutional principle of Union under the British Crown together with other Commonwealth countries unworkable, would defeat a manifest intention expressed in the preamble of our Constitution, and would have the courts overstep their role in our democratic structure.

[39] In conclusion, the lis raised in the present application is not justiciablc and there is no serious issue to he tried. Public interest standing should not he granted. Given my ruling on these issues I need not deal with the other considerations that apply to the granting of public interest standing. The application is dismissed.

[40] If the parties cannot agree as to costs, the respondents are to provide me with brief written submissions within 10 days hereof and the applicant his submissions within 5 days thereafter.


DATE: 20030626





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© 2003 Tony O'Donohue