Battle Royal

by David Johnson

  If most Canadians want this change, how can it be achieved, and what is the likelihood of success? In looking at these questions and their constitutional and political answers — some very hard and fast, others more speculative — Canadian republicans face their greatest difficulties. Given that the institution of the monarchy is entrenched in the Canadian constitution by virtue of the Constitution Act, 1867, any move to abolish the monarchy and reconstitute Canada as a republic with a Canadian as head of state requires a constitutional amendment. This reform has to be undertaken subject to the rules set forth in the Constitution Act, 1982. Here, in these rules and the enormous political obstacles they create for republicans, monarchy finds its greatest line of defence. If most Canadians are ambivalent, if not outright hostile, to the idea of Canada remaining a monarchy after the death of Elizabeth II, monarchists can take comfort in the fact that the legal and political manoeuvres necessary to abolish the monarchy and replace it with a made-in-Canada republican form of government are so complicated and unlikely of success that the continuation of the monarchy in this country is essentially guaranteed.

  In 1981, when Liberal prime minister Pierre Elliott Trudeau and nine of ten premiers agreed to the package of constitutional reforms that came to be embodied in the Constitution Act, 1982, they assented to a series of procedures by which the Canadian constitution could be amended. Most general amendments would be achieved with the support of the federal government and Parliament, and the assent of seven provincial governments and legislatures representing at least 50 percent of the total population of Canada. These constitution drafters, however, also included five subject matters for possible future constitutional amendments that were considered of such great national importance that any amendment addressing these topics could only be ratified with the unanimous consent of the federal government and Parliament, and all ten provincial governments and their legislative assemblies. One of these privileged matters, listed in section 41, was any amendment to “the office of the Queen, the Governor General and the Lieutenant Governor of a province.”[3] This clause stipulates that any amendment to the institutions of the monarchy in Canada, including the position and role of the sovereign and the appointment, status, and function of both the governor general and the provincial lieutenant governors, can be “made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and the House of Commons and of the legislative assembly of each province.” In other words, the prime minister and every premier possess a veto over any change to the status of the monarchy in Canada.

  Although section 41 provides for a method by which the monarchy in Canada can be abolished, it is important to examine how such an amendment would have to play out in the real world of Canadian politics and government. To begin, we need to recognize that the formal amendment procedure found in section 41 is elitist and centralized. It places effective political and constitutional power in the hands of first ministers, their governments, and the parliamentary bodies within which they sit. Only they have the authority to formally initiate constitutional reform proposals and to ratify them. Next, we need to understand that while public opinion is important to any and all constitutional reform initiatives, and the public may become involved in gauging the popular support for constitutional proposals by means of referenda, such popular consultation is not legally required.

  Constitutional Law Meets Constitutional Politics

  Given the predominant position of first ministers and their governments in the constitution-making process, any initiative to abolish the monarchy in Canada must ultimately come from them. While the currents of Canadian public opinion have at times flowed quite strongly against the continuation of the monarchy, especially during the 1990s and the first decade of the twenty-first century, at no time did any first minister ever make the abolition of the monarchy a primary plank in any electoral platform or a major policy objective once in power. This statement even applies to Parti Québécois premiers in Quebec. While federal Liberal cabinet minister John Manley mused about abolishing the monarchy prior to the advent of the new millennium, Prime Minister Jean Chrétien disavowed this as a policy goal. In fact, no prime minister has ever advocated for the abolition of the monarchy, and no premier has ever used his or her political capital to make it a key objective of constitutional reform.

  The trend toward avoiding this tangled discussion persists. Under Stephen Harper’s government, the monarchy witnessed the prime minister as a staunch ally, with this Conservative administration raising the profile of the governor general, promoting the royal family, defending the Queen as Canada’s head of state, and reinstating the “royal” titles to the Canadian navy and air force. While the federal New Democratic Party has passed resolutions at its policy conventions calling for New Democrats to promote discussions on the abolition of the monarchy in Canada, the party leadership has never embraced these initiatives as serious matters of public policy upon which the NDP would campaign in federal elections. Likewise, the federal Liberal Party in the early years of the twenty-first century has never raised the issue of the abolition of the monarchy in any way as a major or even minor issue. In the 2015 federal election campaign, Justin Trudeau never spoke of monarchy abolition as any type of priority for a new Liberal government. Once in power, one of Prime Minister Trudeau’s first international visits was to London to visit the Queen. In other words, at both national and provincial levels of politics and government, the major actors who control access to the levers of the constitutional amendment process have shown no interest in opening up the constitution to promote the monarchy’s abolition. Even among the general population, most Canadians for the better part of the past half century have never been persuaded that the monarchy/republic issue is one of great concern to them. When Canadians are asked to list the major issues of public policy that concern them, they consistently flag, in varying order, the economy, health care, law and order, tax policy, environmental protection, leadership, and accountability and ethics in government as the greatest issues facing the country. What such surveys have never found at any time in Canadian history is a majority of Canadians vigorously articulating the idea that the abolition of the monarchy in Canada and its replacement with a Canadian republican form of government is “the” issue galvanizing Canadians.[4] Were it otherwise, the monarchy would have died in this country decades ago.

  Constitutional Horror Stories

  As with the republicans’ defeat in the Australian referendum, the spectacular failures in Canada of the Meech Lake and Charlottetown Accords in the early 1990s have served as cautionary tales for first ministers and their governments, warning them of the quagmire of constitutional negotiations. Prime Minister Brian Mulroney witnessed his government’s popularity destroyed, in part, by his fixation with broad-based constitutional reform. Since Mulroney, no prime minister has been at all keen to reopen the constitution to deal with any matter of public policy reform. Their reticence, shared by the premiers, is grounded in a well understood fear of constitutional politics. Constitutional reform of one type or another is easy to propose, but exquisitely difficult to achieve. It is extremely hard to keep constitutional initiatives limited to even a small number of desired reforms, let alone a single matter such as the abolition of the monarchy. Once constitutional negotiations begin, a natural tendency arises for first ministers to bring a variety of issues and reforms to the table so as to appeal to the widest array of their voting publics. But the larger the agenda, the more difficult it is to gain agreement across all first ministers. If the level of agreement required is unanimity, the difficulty quotient becomes huge.

  The legacy of failure with the Meech Lake and Charlottetown Accords lies heavily upon republicans advocating for the reopening of the constitution now or at some time in the not-too-distant future so as to abolish the monarchy. Any initiative to reopen the constitution to address the monarchy requires a first minister to ma
ke such a motion. No first minister has ever been prepared to do so. Moreover, if any first minister ever did come to believe in the cause of monarchy abolition, she or he would have to believe in her or his personal capacity to convince every first ministerial colleague on its rightness and political viability. But any single first minister could kill the idea in its infancy simply by exercising his or her veto power, saying that the abolition of the monarchy is not a constitutional priority of his or her government. How easy would it be, and popular back home, for a premier from Newfoundland and Labrador, or Prince Edward Island, the most loyalist of provinces, to veto such a plan. Or would other first ministers be likely to say that, since the constitution is being reopened, they have other more pressing reform issues to bring to the table — issues that trump the importance of monarchy abolition such as Senate reform, indigenous self-government, strengthening the Charter of Rights, or reforming federal-provincial equalization policy. Given the unlikelihood of gaining unanimous consent from the first ministers to a stand-alone amendment involving the monarchy, the republican option for abolition appears to be next to hopeless. Why would any first minister ever expend precious political capital on a venture presenting the highest probable degree of failure?

  Basic Republican Options: Under the Constitutional Microscope

  The constitutional problems for the republican option do not end with the challenge of the nearly assured failure of the project in its infancy. Rather, considerations of the substance of republican reform options serve to raise more questions than they answer. Even if first ministers were prepared to enter into discussions on the abolition of the monarchy, the next logical question becomes, what would replace the monarchy in Canada were it to be abolished?

  A variety of republican systems of government could be available to a post-monarchical Canada. One option would be for Canadians to fully break with their political traditions of parliamentary rule and establish an American congressional system of government with a president serving as chief executive and head of state. This option would necessitate a fundamental rewriting of the Canadian constitution; given the complexity involved here, it is unlikely that most Canadians and any first ministers would be interested in pursuing such major constitutional change. Even most Canadian republicans, including the Citizens for a Canadian Republic (CCR), are not in favour of a de-monarchized Canada that mimics the American constitution. The CCR calls for a head of state functioning within a continued parliamentary system of government.[5]

  If this type of constitutional change is what most Canadians wish for, then any number of parliamentary republics such as Germany, India, Italy, South Africa, or Israel can serve as models for how a Canadian republic could be organized. If Canada were to follow the path toward a parliamentary republic, certain questions regarding the status of the head of state would have to be addressed. Would the head of state of a new Canadian republic continue to be known as the governor general or governor, or would the more internationally recognizable title of “president” be used to identify this office-holder? Far more important than the name, Canadians and their first ministers would have to agree on the manner by which the head of state would be selected. Here the options come down to some form of appointment versus some form of election. In the lead-up to the 1999 Australian referendum, the Republic Advisory Committee recommended that Australians be asked to vote on whether they wanted a republic with a head of state appointed by their federal Parliament, with the prime minister in charge of making the nomination in consultation with the leader of the opposition, and the nominee requiring the support of two-thirds of the members of Parliament. This method of parliamentary selection, which could be followed in Canada, places key authority in the hands of the prime minister, with the leader of the opposition having some significant influence on the nomination, while elected parliamentarians have the final vote on the appointment. In Australia, a majority of people rejected this form of parliamentary selection as being too closed and elitist. Within Canada, it is highly likely that such a parliamentary form of selection would also fail to attract the support of most Canadians.

  The CCR has long supported the direct election of a Canadian head of state. It is also fair to say that the more closed parliamentary form of selection would never get the support of any Canadian premier, since the premiers would be completely frozen out of the decision-making. The premiers have never had any formal role in the prime minister’s recommendation to the sovereign regarding the appointment of the governor general. If constitutional negotiations were ever initiated among first ministers regarding the establishment of a Canadian republic and the manner of selecting a new Canadian head of state, rest assured that the premiers would be unanimous in demanding the maximum amount of power and influence they could possibly achieve in negotiations with the prime minister on how a new governor general/president would be chosen, if he or she was to be chosen by parliamentarians rather than by a direct election.

  There are, however, options for selecting a head of state that exclude parliamentary approval. In 2009, the editorial board of the Globe and Mail endorsed the suggestion that, short of direct election of the governor general, the prime minister should establish a vetting process for vice-regal appointments modelled on the Advisory Council of the Order of Canada. Such an advisory body, so the Globe argued, would be chaired by the chief justice of Canada, and should include the clerk of the Privy Council, the chair of the Council of the Federation (representing the premiers), the speaker of the House of Commons (representing Parliament), the national chief of the Assembly of First Nations, the president of the Royal Society of Canada, and “leaders representing other diverse aspects of Canadian society.”[6] This committee would provide a list of recommended names to the prime minister, who would in turn decide on one nominee to be forwarded to the sovereign for appointment. This idea has the merit of not requiring a constitutional amendment to effect the desired reform in that it structures but does not fetter prime ministerial discretion.

  In 2010, when Prime Minister Stephen Harper recommended David Johnston as the next governor general to succeed Michaëlle Jean, he did so having accepted advice tendered to him by an ad hoc advisory committee specially appointed by the prime minister to assist him in making this recommendation to the Queen. The committee consisted of the secretary to the governor general, a small number of academics known for their loyalty to the institution of the monarchy as well as to the prime minister, and the private secretary to the lieutenant governor of Nova Scotia. In 2012, Harper formalized this procedure with the creation of an Advisory Committee on Vice-Regal Appointments, although this committee was not nearly as broad-based or representative as the one proposed by the Globe and Mail. The members of this committee, all of whom served for a limited time, had the duty of assisting the prime minister in drawing up names of persons eligible and capable of serving in a vice-regal capacity, vetting highly recommended potential nominees, and providing advice to the prime minister on a preferred nominee.

  No committed republican was enamoured of Prime Minister Harper’s advisory committee. How could they be when it represented nothing but a minor reform to the manner by which a prime minister structures his or her absolute control over the appointment of Canada’s vice-regents? Governor General David Johnston’s term in office expired in the fall of 2017 and, on July 12 of that year, Prime Minister Trudeau named Julie Payette, a former Canadian astronaut, as this country’s twenty-ninth governor general. This appointment, respecting the tradition of alternating between French and English Canadians, and perhaps now also between men and women, was initially greeted with widespread favour in the media.[7] The native Montrealer, superbly well-educated, capable of speaking six languages, seemed a perfect choice for vice regent. But concerns were soon raised about the process used by the prime minister.

  In the weeks following the announcement of her appointment it was noted in the media that Ms. Payette had once, while driving, struck an
d killed a pedestrian. Investigative journalism also revealed that she had once also faced second-degree assault charges in Maryland in 2011. These charges were subsequently dismissed by state prosecutors, with the case being expunged from the record; with respect to the motor vehicle incident, police found Ms. Payette to be not at fault and no charges were ever laid.[8] Through these stories, however, the focus of the media was not so much on Ms. Payette as it was on the prime minister. Was the prime minister aware of these issues in Ms. Payette’s past when he made the appointment? And what type of process had the prime minister used prior to announcing the new vice-regent?

  In addressing these queries, Prime Minister Trudeau affirmed that he had made the decision to appoint Ms. Payette on his own initiative and that he had not used any advisory panel to assist him in this decision. So, gone was the Harper process. Trudeau had simply relied on support from within his own Prime Minister’s Office, with the appointment decision firmly resting in his hands. He also stressed that the rigorous vetting procedure used by the federal government in assessing all major executive appointments had not revealed any concerns in Ms. Payette’s past.[9] Prime Minister Trudeau’s behaviour here was fully within the constitutional powers of any prime minister, but the fact that his vetting process failed to reveal some potentially significant facts about Ms. Payette’s past life gives pause for thought. This story lends support to the idea that an advisory committee such as that developed by former prime minister Harper has much to commend it to prime ministers looking for seamless transitions to new vice-regents.