O'Donohue V. Canada
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''O'Donohue v Canada'' was a legal challenge to the exclusion of
Roman Catholic Roman or Romans most often refers to: *Rome, the capital city of Italy * Ancient Rome, Roman civilization from 8th century BC to 5th century AD * Roman people, the people of ancient Rome *'' Epistle to the Romans'', shortened to ''Romans'', a let ...
s from the throne of Canada. The applicant sought a
declaratory judgment A declaratory judgment, also called a declaration, is the legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding preventive by which a party involved in an actual or possible legal ma ...
that certain provisions of the Act of Settlement 1701 violate the equality-rights section of the ''
Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part ...
''. In 2003 the Ontario Superior Court of Justice dismissed the case, finding the matter
non-justiciable Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party ...
. In 2005 that decision was upheld on appeal. The application was brought by
Tony O'Donohue Anthony "Tony" Edward O'Donohue (March 22, 1933 – February 20, 2022) was a former municipal politician in Toronto, Ontario, Canada. Early life Born in The Burren, County Clare, Ireland (then Irish Free State), O'Donohue graduated as a civil eng ...
, a civil engineer, former
Toronto City Council Toronto City Council is the governing body of the municipal government of Toronto, Ontario. Meeting at Toronto City Hall, it comprises 25 city councillors and the mayor of Toronto. The current term began on November 15, 2022. Structure The c ...
lor, 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 the succession by constitutional amendment. At the time of the legal challenge, Canada's
head of state A head of state (or chief of state) is the public persona who officially embodies a state Foakes, pp. 110–11 " he head of statebeing an embodiment of the State itself or representatitve of its international persona." in its unity and l ...
was
Elizabeth II Elizabeth II (Elizabeth Alexandra Mary; 21 April 1926 – 8 September 2022) was Queen of the United Kingdom and other Commonwealth realms from 6 February 1952 until her death in 2022. She was queen regnant of 32 sovereign states during ...
,
Queen of Canada The monarchy of Canada is Canada's form of government embodied by the Canadian sovereign and head of state. It is at the core of Canada's constitutional Canadian federalism, federal structure and Westminster system, Westminster-style Parliamentar ...
, a legally distinct position from the
Queen of the United Kingdom The monarchy of the United Kingdom, commonly referred to as the British monarchy, is the constitutional form of government by which a hereditary sovereign reigns as the head of state of the United Kingdom, the Crown Dependencies (the Bailiw ...
, though embodied in the same person. As a sovereign nation, Canada is free to alter its own laws, but its
constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these princ ...
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. 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
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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:


Judgment

On June 26, 2003 the Ontario Superior Court of Justice 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: 6"The impugned positions of the
Act of Settlement The Act of Settlement is an Act of the Parliament of England that settled the succession to the English and Irish crowns to only Protestants, which passed in 1701. More specifically, anyone who became a Roman Catholic, or who married one, bec ...
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 Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
is united under the
Crown of Great Britain The monarchy of the United Kingdom, commonly referred to as the British monarchy, is the constitutional monarchy, constitutional form of government by which a hereditary monarchy, hereditary sovereign reigns as the head of state of the United ...
, 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 The House of Commons is the name for the elected lower house of the bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of parliament. T ...
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 ''Hansard'' is the traditional name of the transcripts of parliamentary debates in Britain and many Commonwealth countries. It is named after Thomas Curson Hansard (1776–1833), a London printer and publisher, who was the first official prin ...
. February 3, 1953, page 1566." 7"These rules of succession, and the requirement that they be the same as those of
Great Britain Great Britain is an island in the North Atlantic Ocean off the northwest coast of continental Europe. With an area of , it is the largest of the British Isles, the largest European island and the ninth-largest island in the world. It i ...
, are necessary to the proper functioning of our constitutional monarchy and, therefore, the rules are not subject to Charter scrutiny." 8"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 is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has different ...
, one of the branches of our government, but rather to disrupt the core of how the
monarchy A monarchy is a government#Forms, form of government in which a person, the monarch, is head of state for life or until abdication. The legitimacy (political)#monarchy, political legitimacy and authority of the monarch may vary from restric ...
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 A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accorda ...
overstep their role in our democratic structure." 9In 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."


See also

* List of Canadian lower court cases


External links


Text of Ontario Superior Court of Justice judgment at the Canadian Legal Information Institute
* ttps://web.archive.org/web/20090808052403/http://www2.canada.com/national/features/democracy/story.html?id=%7B1f3ef50e-2a74-401b-883e-ad27a04b271a%7D Newspaper article, Ottawa Citizen, 2002-10-02 {{DEFAULTSORT:ODonohue v Canada Monarchy in Canada Section Fifteen Charter case law 2003 in Canadian case law Canadian law articles needing infoboxes Catholicism in Canada Court of Appeal for Ontario cases 2003 in Ontario