In a move that rocked the royal family and media landscapes on both sides of the Atlantic, Prince Harry and Meghan, Duchess of Sussex have made a move to Canada, settling, at least for now, on Vancouver Island. But as the royal couple makes its transition to North America, a dispute over the framework of royal succession in Canadian law has two Quebec academics making headlines as they appeal their case to the Supreme Court. Professors Genevieve Motard and Patrick Taillon claim that a 2013 federal law changing the rules of succession to the Canadian throne violated the Constitution.
That law made it possible for first-born women to become monarchs in their own right and repealed an antiquated rule that forbade royal heirs from marrying Catholics. Previously, a woman could only become sovereign if she had no younger brothers who could inherit the crown instead.
Elizabeth II was able to become queen because she had only a younger sister.
Motard and Taillon do not object to "the modernization of the rules of royal succession," but insist that, constitutionally, the "unanimous consent of the provinces" is necessary to pass such a change — a step the federal government bypassed in 2013.
"In essence," they write on their website, "we believe that changing the rules of succession to the Canadian throne should be done in accordance with the Constitution of Canada, with respect to Canada’s sovereignty and the principles of federalism. That is why the unanimous consent of the Canadian provinces is required."
Speaking to MTL Blog, the professors' associate, lawyer Julien Fournier, suggested that the 2013 federal law undermines Canada's independence from the United Kingdom.
"Politically, of course, we want the Queen of the other Commonwealth realms to be our Queen. But in law, the Constitution has to be respected. The rules that select our Head of State cannot be determined by the British Parliament, because it abdicated its power over Canada in 1982."
Fournier said that "the timing" of the appeal "has nothing to do with the arrival of the Duke and Duchess of Sussex."
(He does claim, however, that because "only the Queen is recognized" in Canadian law, "the situation of Prince Harry in Canadian law is uncertain.")
But he does outline the potential consequences of a failure to obtain unanimous provincial consent in the appeal team's understanding of the law.
"If the federal government and the provinces fail to negotiate successfully, it will result in two different monarchs for Canada and the rest of the Commonwealth in the event that the heir is married to a Catholic or is the first-born woman."
"But, as the Duchess of Cornwall (Camilla) is not Catholic, nor the Duchess of Cambridge (Kate Middleton), the federal [government] and the provinces would have normally at least 40 years," a few generations, "to negotiate on an amendment to the Canadian Constitution."
Prince Harry, Meghan, and son, Archie, will split their time between Canada and England but will drop their royal titles and become financially independent in an apparent deal struck with the Queen. Their retreat from the UK was widely viewed as an attempt to escape from the scrutiny of British tabloids.
But if Motard and Taillon are successful, that peace will be shortlived, as Canada plunges into what would surely be a raucous debate over the future of the monarchy.