He may not be the first Irishman to take on the Queen of England, but Tony O'Donohue is taking his fight with the crown all the way to one of the highest courts in Canada.

Mr. O'Donohue, a former Toronto City Councillor, and a native of Fanore, County Clare, where his family still runs a pub, wants to do nothing short of changing the Canadian constitution. Canada did not get its own constitution until 1982, but it still includes a 302-year-old British statute, the Act of Settlement 1701, which excludes Roman Catholics from ascending to the British throne. Mr. O'Donohue would like nothing more than to see the law struck down.

The Act includes the provision that "All and every person?[who] shall hold communion with the see or Church of Rome, or should profess the popish religion, or marry a papist, should be excluded, and are by that Act made for ever incapable to inherit, possess or enjoy the Crown and government of this realm."

For Mr. O'Donohue, himself a Catholic, such a piece of legislation in this day and age is "discriminatory."

In June, Judge Paul S. Rouleau of the Ontario Superior Court ruled against the Councillor's lawsuit in the case of O'Donohue vs. Her Majesty the Queen. The judge ruled that "One cannot accept the monarch but reject the legitimacy or legality of the rules by which this monarch is selected." Judge Rouleau continued by writing in his decision that "Canada could arguably reanimate the debate regarding the heir to the throne, an argument that was resolved by the Act of Settlement. This would clearly be contrary to settled intention, as demonstrated by our written Constitution, and would see the courts changing rather than protecting our fundamental constitutional structure."

The ruling however, dealt only with the mechanical details of his suit and not the merits of Mr. O'Donohue's arguments. In light of this, Mr. O'Donohue is not giving up. He intends to take his case all the way to the Supreme Court of Ontario, where it will likely be heard sometime in December. "This is so backwards," Mr. O'Donohue said recently during an interview in his Toronto office. "Tony Blair said he would get rid of it?and now they're saying it would open up old wounds?It's time we cleaned up our act. It should have been scrapped a long time ago. I know it is going to change sometime, but it is a question of who is going to have the ability to change it."

Mr. O'Donohue also feels that if the current Canadian government is able to change the definition of marriage, from the traditional concept of a union between a man and a woman to a more inclusive one that includes same-sex marriages, then they should be able to change this "medieval" Act. A court in Ontario ruled this past summer that the current traditional definition of marriage was discriminatory to gays and lesbians.

Mr. O'Donohue brought suit against the Queen because he feels that the Act is specifically in violation of the equality provisions of the Canadian Charter of Rights and Freedoms, which are, essentially, Canada's Bill of Rights. The suit was the culmination of a 23-year letter writing campaign to various Canadian politicians. Among the more supportive letters he received was from Deputy Prime Minister John Manley. A well-known anti-monarchist, who controversially recommended dropping the British monarch as Canada's head of state before Queen Elizabeth's state visit last year, Mr. Manley wrote to Mr. O'Donohue in 1997. In the letter, Mr. Manley, who had just recommended that Canada's next head of state should be Canadian, wrote "I am certain the new [Canadian] institution would not be limited to Protestants?as is the case with the British succession." Other letters though have ranged from standard form letters to condescending denunciations.

In a letter dated December 4th, 1995, Peter Donolo, the Director of Communications for Prime Minister Jean Chretien recommended that, "given the other important issues we are faced with, I believe it is legitimate to ask whether or not it would really be constructive to raise the Monarchy at this moment."

Brian Mulroney, Canada's Prime Minister from 1984 to 1993, made much of his Irish heritage on the campaign trail, but distanced himself from this controversy.

Writing on Mr. Mulroney's behalf on January 17th, 1989, special assistant Ann Walker wrote that "the Act of Settlement is an act of the British Parliament and, therefore, it would be inappropriate for the Prime Minister to interfere." Ms. Walker then instructed Mr. O'Donohue to contact then British Prime Minister Margaret Thatcher.

"I just got the runaround from all of these guys," he said of these dismissive letters. A letter from the British Home Office though, dated March 19th, 1998 does attempt to address some of Mr. O'Donohue's concerns. The letter, written by one D. Richards of the office's Constitutional and Community Policy Directorate's Constitutional Unit, pointed out that the British monarch also serves as the head of the Church of England, and that it would be incompatible, religiously and otherwise, to have a Catholic fulfill both functions simultaneously.

Nonetheless, while the letter notes that "the Government is alive to concerns about religious discrimination," it reiterates that the "Government has no present plans to repeal the Act."

The specter of discrimination may have also played a hand in one of Councillor O'Donohue's most public defeats in the past. In 1972, he ran for the Mayor's chair. At the time, the Toronto establishment was still very much controlled by the Orange Order and a largely British Protestant majority. As a Roman Catholic born in Ireland, he faced not only political but religious obstacles among the city's voters.

"It was very much so an Orange Order town. Toronto at that time always had a big Orange parade on July 12th," he remembers. "That slowly sort of melted away. It's really an international city now."

After leaving politics in 1994, Mr. O'Donohue returned to the private sector. Currently, he is the President of Environmental Probe Ltd., and has a new book on city infrastructure and the environment due out at the end of the month.