Whew, I almost forgot an important birthday today. Facebook, which regularly reminds me of all sorts of anniversaries of people I scarcely know, dropped the ball completely, but thankfully, my Google calendar saved the day, highlighting Monday, December 11 as the 86th birthday of the Statute of Westminster. (the 1931 version, not the ones of the same name from 1275 and 1285 )
Unless you are a constitutional law nerd you could be forgiven for wondering why this birthday is important. Well, the Statute of Westminster is in fact one of the pillars of the Canadian Constitution, as important as the British North America Act or the Constitution Act of 1982. By rights, we should probably be celebrating Canada Day today, rather than the 1st of July, since December 11th 1931 was the day that Canada truly became a sovereign, independent nation, ending the paramountcy of acts of the British parliament over our affairs. We can be thankful for the wisdom of the Fathers of Confederation for realizing that a July long weekend makes much more sense for a family BBQ, but still, we should honour the day more than we do.
Of special interest to the legal profession, The Statute gave Canada the option of abolishing the use of the Judicial Committee of the Privy Council as the country’s court of last appeal, but as with most things in the profession, change came at a glacial pace, and it wasn’t until 1949 that we actually got around to it.
A fun factoid for all my fellow closet monarchists – the Statute of Westminster played merry hell with the laws governing succession to the British Throne, which, in July of 2013 had constitutional scholars holding their breath, lest the future Queen of England not be the future Monarch of Canada . The crisis was averted when the Duchess of Cambridge produced a male heir in the person of Prince George of Cambridge, but it was a close call.
OK, so constitutional scholars don’t get out much, and tend to light their hair on fire over fine points of statutory interpretation that put the rest of us to sleep, so let me give you the Cole’s Notes version:
Section 2(2) of the statute gives Canada the sole right to amend the laws of royal succession, as they apply to Canada, meaning that any subsequent changes made to the laws of royal succession of Great Britain would no longer apply to us.
Then, in 2013 the game was afoot as the British Parliament started messing around with those laws of royal succession by enacting the Succession to the Crown Act, which stipulates that the crown no longer goes to the first-born male heir, but simply to the first born, regardless of gender. In doing so, they gave the appropriate tip of the hat to the Statute of Westminster, by declaring that the law expressly exempted Canada.
The immediate result was that, while the UK had adopted the modern doctrine of absolute primogeniture, the law in Canada remained that the monarch of Canada was to be selected using the old-fashioned male preference primogeniture. To enact a change in the Canadian law would have required the unanimous consent of the Provinces, so the Canadian government wimped out and passed the Throne Bill 2013 – literally a one liner that simply said Canada assented to the K UK Succession to the Crown Act.
Experts agree pretty universally that our legislation was completely ineffective, since it purported to assent to an Act which expressly exempted Canada . So, had the order of birth of Prince George and Princes Charlotte been reversed, Charlotte would have become Queen of England , while George became King of Canada. No wonder the academics were holding their breaths waiting for Kate to deliver !
Now, you have to admit, any legislation with the ability to crate such havoc deserves to be properly recognized on its birthday, so maybe we should give consideration to making State of Westminster Day a national holiday – the weather is lousy for barbecuing, but maybe we could combine the holiday with Black Friday and really have a party !