O'Donohue v. Canada
Encyclopedia
O'Donohue v. Canada was a legal challenge to the exclusion of Roman Catholics from the throne of Canada
. The applicant sought a declaratory judgment
that certain provisions of the Act of Settlement 1701
violate the equality-rights section
of the Canadian Charter of Rights and Freedoms
. In 2003 the Ontario Superior Court of Justice
dismissed the case, finding the matter non-justiciable. In 2005 that decision was upheld on appeal.
The application was brought by Tony O'Donohue
, a civil engineer
, former Toronto City Council
lor and member of Citizens for a Canadian Republic
, after over two decades of pursuing reform of the succession
by constitutional amendment
.
Currently Canada's head of state
is Elizabeth II
, Queen of Canada
; a legally distinct position from the Queen of the United Kingdom
, though embodied in the same person. As a sovereign nation, Canada is free to alter its own laws, but its Constitution
includes the 1931 Statute of Westminster
, which set out the convention that all of the Commonwealth realms must have symmetrical lines of succession to the throne, to maintain the unity of the Crown (See: Commonwealth realm - Sovereignty of the realms). Thus the constitutional law that predominantly governs the line of succession to the throne, the 1701 Act of Settlement
, must remain identical to the same law in the other realms, including the United Kingdom. The Act of Settlement, in turn, forbids Catholic
s from becoming King or Queen of Canada.
O'Donohue argued that this law was discriminatory, and attempted to have it repealed. As a sovereign country, Canada, it was argued, should be free to change any laws regarding who becomes the country's head of state. The Court File (NO.: 01-CV-217147CM) stated:
ruled in favour of the respondents—who were named as Her Majesty the Queen in right of Canada, Her Majesty the Queen in right of Ontario
. The judgement was subsequently upheld by the Court of Appeal for Ontario on March 16, 2005. It read as follows:
[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:
[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 justiciable and there is no serious issue to be tried. Public interest standing should not be 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."
Monarchy in Canada
The monarchy of Canada is the core of both Canada's federalism and its Westminster-style parliamentary democracy, being the foundation of the executive, legislative, and judicial branches of the Canadian government and each provincial government...
. The applicant sought a declaratory judgment
Declaratory judgment
A declaratory judgment is a judgment of a court in a civil case which declares the rights, duties, or obligations of one or more parties in a dispute. A declaratory judgment is legally binding, but it does not order any action by a party. In this way, the declaratory judgment is like an action to...
that certain provisions of the Act of Settlement 1701
Act of Settlement 1701
The Act of Settlement is an act of the Parliament of England that was passed in 1701 to settle the succession to the English throne on the Electress Sophia of Hanover and her Protestant heirs. The act was later extended to Scotland, as a result of the Treaty of Union , enacted in the Acts of Union...
violate the equality-rights section
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. In 2003 the Ontario Superior Court of Justice
Ontario Superior Court of Justice
The Superior Court of Justice is the superior court of general jurisdiction for the Province of Ontario, Canada. It is the successor to the former Ontario Court of Justice , and was created on April 19, 1999...
dismissed the case, finding the matter non-justiciable. In 2005 that decision was upheld on appeal.
The application was brought by Tony O'Donohue
Tony O'Donohue
Anthony "Tony" O'Donohue is a former municipal politician in Toronto, Ontario.-Early life:Born in The Burren, County Clare, Ireland , O'Donohue graduated as a civil engineer from University College, Galway in 1954...
, a civil engineer
Civil engineering
Civil engineering is a professional engineering discipline that deals with the design, construction, and maintenance of the physical and naturally built environment, including works like roads, bridges, canals, dams, and buildings...
, former Toronto City Council
Toronto City Council
The Toronto City Council is the governing body of the city of Toronto, Ontario, Canada.Members represent wards throughout the city, and are known as councillors....
lor and member of Citizens for a Canadian Republic
Citizens for a Canadian Republic
Citizens for a Canadian Republic is a not-for-profit Canadian organization founded in 2002 that advocates the replacement of the Canadian monarchy with a head of state who would either be chosen through a general election or elected by parliament...
, after over two decades of pursuing reform of the succession
Order of succession
An order of succession is a formula or algorithm that determines who inherits an office upon the death, resignation, or removal of its current occupant.-Monarchies and nobility:...
by constitutional amendment
Constitutional amendment
A constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
.
Currently Canada's head of state
Head of State
A head of state is the individual that serves as the chief public representative of a monarchy, republic, federation, commonwealth or other kind of state. His or her role generally includes legitimizing the state and exercising the political powers, functions, and duties granted to the head of...
is Elizabeth II
Elizabeth II of the United Kingdom
Elizabeth II is the constitutional monarch of 16 sovereign states known as the Commonwealth realms: the United Kingdom, Canada, Australia, New Zealand, Jamaica, Barbados, the Bahamas, Grenada, Papua New Guinea, the Solomon Islands, Tuvalu, Saint Lucia, Saint Vincent and the Grenadines, Belize,...
, Queen of Canada
Monarchy in Canada
The monarchy of Canada is the core of both Canada's federalism and its Westminster-style parliamentary democracy, being the foundation of the executive, legislative, and judicial branches of the Canadian government and each provincial government...
; a legally distinct position from the Queen of the United Kingdom
Monarchy of the United Kingdom
The monarchy of the United Kingdom is the constitutional monarchy of the United Kingdom and its overseas territories. The present monarch, Queen Elizabeth II, has reigned since 6 February 1952. She and her immediate family undertake various official, ceremonial and representational duties...
, though embodied in the same person. As a sovereign nation, Canada is free to alter its own laws, but its Constitution
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
includes the 1931 Statute of Westminster
Statute of Westminster 1931
The Statute of Westminster 1931 is an Act of the Parliament of the United Kingdom. Passed on 11 December 1931, the Act established legislative equality for the self-governing dominions of the British Empire with the United Kingdom...
, which set out the convention that all of the Commonwealth realms must have symmetrical lines of succession to the throne, to maintain the unity of the Crown (See: Commonwealth realm - Sovereignty of the realms). Thus the constitutional law that predominantly governs the line of succession to the throne, the 1701 Act of Settlement
Act of Settlement 1701
The Act of Settlement is an act of the Parliament of England that was passed in 1701 to settle the succession to the English throne on the Electress Sophia of Hanover and her Protestant heirs. The act was later extended to Scotland, as a result of the Treaty of Union , enacted in the Acts of Union...
, must remain identical to the same law in the other realms, including the United Kingdom. The Act of Settlement, in turn, forbids Catholic
Catholic
The word catholic comes from the Greek phrase , meaning "on the whole," "according to the whole" or "in general", and is a combination of the Greek words meaning "about" and meaning "whole"...
s from becoming King or Queen of Canada.
O'Donohue argued that this law was discriminatory, and attempted to have it repealed. As a sovereign country, Canada, it was argued, should be free to change any laws regarding who becomes the country's head of state. The Court File (NO.: 01-CV-217147CM) stated:
- The applicant. Tony O’Donohue, has brought the present application for a declaration that certain provisions of the Act of Settlement, 1710 [sic], 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 justiciability are to be dealt with at this point. Should I grant the applicant standing and find justiciability the matter will proceed to be heard on the merits; if not, the application will be struck.
Judgment
On June 26, 2003 the Ontario Superior Court of JusticeOntario Superior Court of Justice
The Superior Court of Justice is the superior court of general jurisdiction for the Province of Ontario, Canada. It is the successor to the former Ontario Court of Justice , and was created on April 19, 1999...
ruled in favour of the respondents—who were named as Her Majesty the Queen in right of Canada, Her Majesty the Queen in right of Ontario
Monarchy in Ontario
By the arrangements of the Canadian federation, Canada's monarchy operates in Ontario as the core of the province's Westminster-style parliamentary democracy. As such, the Crown within Ontario's jurisdiction is referred to as the Crown in Right of Ontario, Her Majesty in Right of Ontario, or the...
. The judgement was subsequently upheld by the Court of Appeal for Ontario on March 16, 2005. It read as follows:
[36] "The impugned positions of the Act of Settlement
Act of Settlement 1701
The Act of Settlement is an act of the Parliament of England that was passed in 1701 to settle the succession to the English throne on the Electress Sophia of Hanover and her Protestant heirs. The act was later extended to Scotland, as a result of the Treaty of Union , enacted in the Acts of Union...
are an integral part of the rules of succession that govern the selection of the monarch of Great Britain
British monarchy
The monarchy of the United Kingdom is the constitutional monarchy of the United Kingdom and its overseas territories. The present monarch, Queen Elizabeth II, has reigned since 6 February 1952. She and her immediate family undertake various official, ceremonial and representational duties...
. By virtue of our constitutional structure
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
whereby Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
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
British monarchy
The monarchy of the United Kingdom is the constitutional monarchy of the United Kingdom and its overseas territories. The present monarch, Queen Elizabeth II, has reigned since 6 February 1952. She and her immediate family undertake various official, ceremonial and representational duties...
. As stated by Prime Minister St. Laurent
Louis St. Laurent
Louis Stephen St. Laurent, PC, CC, QC , was the 12th Prime Minister of Canada from 15 November 1948, to 21 June 1957....
to the House of Commons during the debate on the bill altering the royal title:
-
- “Her MajestyMajestyMajesty is an English word derived ultimately from the Latin maiestas, meaning "greatness".- Origin :Originally, during the Roman republic, the word maiestas was the legal term for the supreme status and dignity of the state, to be respected above everything else...
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 sovereignSovereignA sovereign is the supreme lawmaking authority within its jurisdiction.Sovereign may also refer to:*Monarch, the sovereign of a monarchy*Sovereign Bank, banking institution in the United States*Sovereign...
who is recognized as the sovereign of the United KingdomUnited KingdomThe United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
who is our Sovereign. . .” HansardHansardHansard is the name of the printed transcripts of parliamentary debates in the Westminster system of government. It is named after Thomas Curson Hansard, an early printer and publisher of these transcripts.-Origins:...
. February 3, 1953, page 1566."
- “Her Majesty
[37] "These rules of succession, and the requirement that they be the same as those of Great Britain
Great Britain
Great Britain or Britain is an island situated to the northwest of Continental Europe. It is the ninth largest island in the world, and the largest European island, as well as the largest of the British Isles...
, 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
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
, one of the branches of our government, but rather to disrupt the core of how the monarchy
Monarchy
A monarchy is a form of government in which the office of head of state is usually held until death or abdication and is often hereditary and includes a royal house. In some cases, the monarch is elected...
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
Commonwealth
Commonwealth is a traditional English term for a political community founded for the common good. Historically, it has sometimes been synonymous with "republic."More recently it has been used for fraternal associations of some sovereign nations...
countries unworkable, would defeat a manifest intention expressed in the preamble
Preamble
A preamble is an introductory and expressionary statement in a document that explains the document's purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the subject of the statute...
of our Constitution
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
, and would have the courts overstep their role in our democratic
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
structure."
[39] In conclusion, the lis raised in the present application is not justiciable and there is no serious issue to be tried. Public interest standing should not be 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."