| O'Donohue v Canada | |
|---|---|
| Court | Ontario Superior Court of Justice |
| Decided | June 26, 2003 |
| Defendants | Her Majesty the Queen in right of Canada, Her Majesty the Queen in right of Ontario |
| Plaintiff | Tony O'Donohue |
O'Donohue v Canada was a legal challenge to the exclusion ofRoman Catholics from thethrone of Canada. The applicant sought adeclaratory judgment that certain provisions of theAct of Settlement 1701 violate theequality-rights section of theCanadian Charter of Rights and Freedoms. In 2003 theOntario Superior Court of Justice dismissed the case, finding the matternon-justiciable. In 2005 that decision was upheld on appeal.
The application was brought byTony O'Donohue, acivil engineer, formerToronto City Councillor, a founding member of Republic Now, and, at the time, a member of Citizens for a Canadian Republic, after over two decades of pursuing reform of thesuccession byconstitutional amendment.
At the time of the legal challenge, Canada'shead of state wasElizabeth II,Queen of Canada, a legally distinct position from theQueen of the United Kingdom, though embodied in the same person. As a sovereign nation, Canada is free to alter its own laws, but itsconstitution includes the 1931Statute of Westminster, which set out the convention that all of theCommonwealth realms must have symmetrical lines of succession to the throne, to maintain the unity of the Crown. 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, forbidsCatholics 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O'Donohue argued that this law was discriminatory, and attempted to have it repealed.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.
On June 26, 2003 theOntario Superior Court of Justice ruled in favour of the respondents—who were named asHer Majesty the Queen in right of Canada,Her Majesty the Queen in right of Ontario. The judgement was subsequently upheld by theCourt of Appeal for Ontario on March 16, 2005. It read as follows:
[36] "The impugned positions of theAct of Settlement are an integral part of the rules of succession that govern the selection of themonarch of Great Britain. By virtue ofour constitutional structure wherebyCanada is united under theCrown of Great Britain, the same rules of succession must apply for the selection of theKing or Queen of Canada and theKing or Queen of Great Britain. As stated byPrime Minister St. Laurent to theHouse 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 ofGreat Britain, are necessary to the proper functioning ofour 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 ofthe Crown, one of the branches of our government, but rather to disrupt the core of how themonarchy functions, namely the rules by which succession is determined. To do this would make the constitutional principle of Union under theBritish Crown together with otherCommonwealth countries unworkable, would defeat a manifest intention expressed in thepreamble ofour Constitution, and would have thecourts overstep their role in ourdemocratic structure."
[39] In conclusion, thelis 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."