Battle Royal

by David Johnson

  Electing Vice-Regents: Confronting Quagmire

  If Canada were ever to move to a system where we have an elected head of state, a whole new host of questions would have to be resolved prior to rewriting the constitution. Putting aside for the moment the concern that any initiative to have an elected head of state would require the prior abolition of the monarchy in this country, the establishment of an elected head of state would require Canadians first to agree on a wide variety of procedural issues regarding how such head of state elections would work. If there were to be elections for the position of governor general/president, would candidates run with the official endorsement of political parties, thus offering Canadians a clear understanding of their political and ideological beliefs? Or would such elections be officially non-partisan, with candidates prohibited from having direct party affiliations? Canadians are intimately acquainted with the nature of partisan elections, but there can be such things as official non-partisan elections. In municipal politics, for example, most candidates for councillor and mayoral positions do not run for office with official political party endorsement. While some local candidates may be very well known as supporters of one political party or another, most will campaign with non-partisan or possibly bi-partisan platforms, seeking to appeal to people from across various political and ideological divides.

  Would Canadians wish for the same type of non-partisan dynamic in possible elections for our head of state? Or would we want the comfort and simplicity of traditional partisan elections where we would know from the start who is the Conservative, Liberal, New Democrat, and Green candidate? Partisan elections would also necessitate multiple candidates running in such an election. The non-partisan approach would be new in Canadian national politics, which might militate against Canadians adopting it for head of state elections. But if we were to opt for the familiar partisan approach, would we be comfortable with a governor general/president elected as a direct representative of an established political party? If the position of head of state is to represent all Canadians and be seen as a ceremonial embodiment of the Canadian nation, can a partisan head of state achieve these goals? Will Canadians rally around a head of state and show that person any degree of respect and admiration if more than half of Canadians have voted for other candidates? In times of constitutional crisis emanating from a hung Parliament, would Canadians be comfortable, say, with a Conservative head of state acquiescing to the advice, however questionable, of a Conservative prime minister? If, in such circumstances, the head of state is to exercise the reserve powers from a vantage point independent of the prime minister, would most Canadians believe such independence truly existed if the head of state and the prime minister were officially or unofficially members of the same party?

  All of these questions can of course be resolved through discussion and debate. Other countries have successfully navigated challenges related to parliamentary presidencies and varying degrees of partisan election. Germany and Italy are two examples. The basic point here is that Canadians have never engaged with these questions regarding the future nature of an elected head of state; if republicans wish to advance this cause, they, and we, must begin to discuss these matters. We must also recognize that these types of questions are only the beginning. The foregoing paragraphs hinted at one of the other big issues Canadians will have to agree upon if we wish to see an elected governor general/president: what should be the threshold of victory in such an election? Do we opt for the first-past-the-post/plurality rule, where an electoral victor is that candidate who has won the most votes of any candidate, even if he or she has not won a majority of the votes cast by all electors? This rule has governed all Canadian federal and provincial elections, and most municipal elections, since before Confederation. As such, it is the system Canadians are most familiar with. But it usually results in a person and party winning an election having won as little as 40 percent of the vote, and sometimes even less. Such results have been coined by political scientist Peter Russell as “false majorities,” where a candidate has won a seat and a party has won a majority government on a minority of votes cast.[10] Would Canadians want this simple plurality rule to apply to elections for the head of state? Would most Canadians be happy with a governor general/president elected on, say, 40 percent of the vote, while some 60 percent of Canadians had voted for other candidates? Would such an elected head of state be able to claim that he or she truly represented and embodied all Canadians?

  If we want something better than the first-past-the-post rule for declaring a victor in a head of state election, a clear alternative presents itself. If we want to ensure that the head of state truly represents a majority of Canadians, we could stipulate in a revised constitution act that a victor in a head of state election must win a majority of votes cast nationwide. The easiest method of achieving this goal would be the use of preferential ballots. With these, voters rank their preferred candidates in numerical order. If a candidate wins over 50 percent of the vote on the first count, he or she is declared elected. But if no candidate gains this winning threshold, the candidate with the fewest votes is eliminated from further consideration, and his or her ballots are reallocated according to their second choice preferences. Following this second count, if a surviving candidate has gone over 50 percent, he or she is declared elected. But again, if no candidate reaches this winning number, the lowest placed contender is eliminated, and the ballots are again reallocated. Eventually a candidate will gain the winning threshold and be declared elected.

  Another range of questions regarding the future nature of possible head of state elections also requires attention. If we wish to elect our governor general/president, should there be any consideration given to establishing rules governing socio-demographic requirements for candidates? Since 1952 those holding the governor generalship have alternated between English Canadians and French Canadians. Would Canadians wish to see this rotation continue in future with an elected head of state? If so, the constitution would have to be amended to require that such a rotation became a legal necessity. It is not hard to imagine most French Canadians supporting such a constitutional amendment; it is also not hard to envisage that a significant number of English Canadians might simply profess the argument that there should be no restriction on the type of person who can run for this office and that the majority of the Canadian people themselves should decide whom they want as their head of state. In a similar vein, since 1984 and the appointment of Jeanne Sauvé as governor general, Canada has witnessed some remarkable women serving in this position. If we were to have an elected head of state, should there be a requirement that this position alternate between a man and a woman? It is not hard to contemplate that many feminists would support such a constitutional rule, and such a legal requirement could easily be written into an amended constitution. But there would be those opposed to this idea, again stressing that such a rule would amount to “social engineering” and that Canadians should be completely free to select whom they want as their head of state.

  And there is more. If we do wish to make provision for the rotation of the head of state between French and English Canadians, and/or between male and female persons, it is likely that other socio-demographic groups will come forward, asking, if not demanding, similar treatment. Should the head of state alternate between a white person and a person in a visible minority group? Should the head of state alternate between a white person, a person in a visible minority group, and an indigenous Canadian? Members of these socio-demographic groups, and others, can all make strong and passionate arguments as to why the head of stateship and the country would benefit from such inclusive and representational rules for sharing the tenure of this office. Rules regulating the eligibility of head of state candidates for particular election cycles could be written into the constitution, but again there would be resistance from some Canadians who would stress that the majority alone should decide who should be their head of state.

 
Once again, what we see here is just a glimpse of the difficulties that will arise if and when Canadians seek to reopen the constitution so as to abolish the monarchy and establish an elected head of state. Numerous public opinion surveys over the past three decades show substantial numbers of Canadians, and sometimes a majority, supporting the abolition of the monarchy and the establishment of an elective Canadian head of state. These survey questions, though, have always been asked in the abstract, without any consideration of the electoral/constitutional details of just how a head of state should be elected. Once these details come to be addressed, the likelihood is that public opinion on the desirability of such changes will begin to fragment, all to the consternation of the republican cause.

  This cause, moreover, faces yet more constitutional challenges. So far, we have strictly considered the issues that surround changing the constitution to allow for the election of the Canadian head of state. If the monarchy in this country is to be abolished, such abolition not only affects the future role and status of the governor general but also of every lieutenant governor in every province. If we were to enter upon such a period of constitutional change, everything we have looked at with regard to the various revisions to the nature and working of the governor generalship applies equally to every province and its lieutenant gov­ernorship. Should the monarchy be abolished, what are the odds that the premiers, their legislative assemblies, and their provincial populations would continue to consent to their lieutenant governors being officially appointed by the governor general/president on the advice of the prime minister? If the monarchy were to go, every province would then face the same set of questions regarding the future of their provincial head of state as found at the national level.

  The issues to be addressed if Canada is ever going to abolish the monarchy are many and complex, requiring Canadians to think deeply about what would come after such abolition. We would need to consider how the offices of the governor general and lieutenant governors would be reformed and improved, how they could be made more open, representative, and democratic. There is no certainty that Canadians would ever come to agreement on these matters. Given that the abolition of the monarchy and the creation of a Canadian head of state require a constitutional amendment, the republican cause looks unachievable. This prediction is good news for monarchists. But is the republican cause as gloomy as this analysis suggests?

  Current Republican Options and Constitutional Gymnastics

  Republican activists in Canada are well aware of the constitutional difficulties that the amendment procedure presents to their cause. Indeed, the constitution has a built-in bias in favour of maintaining the status quo. Nevertheless, republicans are emboldened by strong public opinion findings showing that substantial numbers of Canadians, sometimes more than half the population, wish to see the end of the monarchy in this country. They wish to see a Canadian as head of state and do not want to see the current Prince of Wales ascending the throne as King Charles III. Given the strength of the republican cause within Canadian public opinion, republicans have endeavoured to find ways to promote their objective of monarchy abolition without first having to engage the formal process of constitutional amendment. Republicans have proven themselves to be inventive in devising initiatives to transmit the repub­lican message to Canadians in the hope of building a foundation of public support that first ministers and their governments will be unable and unwise to ignore.

  One initiative, promoted by Toronto Star writer Bob Hepburn, is to take the issue of monarchy abolition directly to the Canadian people via a national referendum. “Ottawa,” Hepburn wrote in 2012, “should hold a national referendum on a Yes-or-No question: ‘Should Canada sever ties with the British monarchy?’ A simple majority would be sufficient to proceed further.” If the Yes side were victorious in this vote, as it probably would be given the nature of the question posed, this proposal then envisages the federal government establishing a commission, with a one-year mandate, to develop proposals on how Canada would select a head of state. Once the commission had completed its work, “a second referendum would be held on the commission’s top two recommended methods of choosing the next head of state.” Hepburn concludes his defence of this idea with the little sentence: “The entire process, including the formality of each province agreeing to the necessary constitutional amendments, should take just two years.”[11]

  The idea here is clever, with its appeal of simplicity. Let’s just ask the Canadian people the first little question, see what they say, and go from there. If a majority of us want to “sever ties with the British monarchy,” our leaders should respect our democratic wishes and get on with it. This proposal is designed to clearly articulate majority public support for the abolition of the monarchy, at the very outset of the process, by asking Canadians the type of question that Australian republicans wished they had been asked in 1999. If and when this question gets answered in the affirmative, with most Canadians likely happily voting to end ties to a “British” institution, senior officials and first ministers are then simply tasked with doing the technical work of designing the new system for selecting the head of state, with the people having the final say on this. In the second referendum, the abolition of the monarchy is a foregone conclusion, with Canadians simply called upon to affirm how we want the new Canadian governor general/president selected.

  What first appears as clever simplicity, however, soon gives way to being simplistic nonsense, showing a gross misunderstanding of how Canadian constitutional politics work. The first problem resides in the very heart of this idea: the first referendum. Only the prime minister and his or her government can call such a national referendum. And, as we have seen, no prime minister in Canadian history has ever contemplated holding such a referendum, and no one should be under any illusion that this reality will change any time soon. Also, even if such a referendum were to be held, as was the case in Australia, the exact wording of the question would not be in the control of republicans. Rather, it would be in control of the prime minister.

  It is also far from certain that a simple national majority would suffice for a declaration of victory for the Yes side. Given that the future of monarchy in Canada rests on this question, with all provincial governments and legislative assemblies being required to eventually ratify such a result, there is a precedent, dating from the 1992 referendum on the Charlottetown Accord, that the Yes side would have to win a majority nationally as well as in every single province. All of a sudden, the likelihood of such a referendum question being victorious falls dramatically. But say the Yes side does win such a vote. What then? The proposal calls for a federal commission to study the various methods of selecting a new head of state. Any such study, however, is a study of ways and means by which the Constitution Act, 1982 should be amended. Rest assured that if any federal government initiated this project, the premiers would demand seats at this negotiating table. If the prime minister granted such demands, a formal round of constitutional negotiations would commence, with no guarantee that the subject matter of negotiations would be narrowly confined to the issue of the monarchy. If any prime minister, though, refused the premiers’ demands for involvement in this study, most likely the prem­iers would denounce such action as federal arrogance and challenge the legitimacy of the procedure and resulting outcome. A second referendum would then become problematic, with premiers possibly refusing to participate and claiming not to be bound by the referendum’s results. Any subsequent round of constitutional negotiations, which Hepburn views as a mere formality, would probably be anything but — and would come with no guarantee of success.

  Fully conscious of how quickly any initiative involving the reopening of first ministers’ negotiations to amend the constitution can become mired, the leadership of Citizens for a Canadian Republic have suggested a much more modest proposal for promoting the eventual creation of an elected Canadian head of state. This proposal is rooted in reform to the manner by which the pr
ime minister appoints the governor general that does not require any change to the constitution. While the CCR has accepted that there should be no initiative to abolish the monarchy in this country while Elizabeth II is still on the throne, this organization supports “a process of democratizing the office of the governor general and redefining his or her role in government. In effect, we could have a parliamentary or even a direct popular election for the governor general, which, unlike the decision on who is our head of state, is one that does not require a constitutional amendment to implement.”[12] The idea here is that the prime minister still retains the right to recommend to the sovereign who should be appointed as the next governor general. But now, rather than being guided by his or her own judgment and advice coming from the Advisory Committee on Vice-Regal Appointments, the prime minister would be obligated to recommend the person nominated by Parliament or approved by the Canadian people in a direct national election. The immediate benefit of adopting this procedure now, according to the CCR, is that during these last years of Elizabeth II’s reign, Canadians would get used to a process by which the governor general is, in effect, either selected by Parliament or, better yet, directly elected by the Canadian people, with the prime minister’s role being simply to notify the Queen whom to officially appoint to this position. As Canadians grew accustomed to seeing the governor general selected in this way, they would get used to this process and its democratic basis. Once the inevitable happens and Elizabeth II passes away, Canada would have a ready-made democratic system for selecting a Canadian head of state. The CCR envisions a plan for the future in which, once the Queen has died, the country will have a referendum on severing the link with the British monarchy, with the mechanics of a democratically selected head of state already in place. “The real benefit to applying this procedure to the Governor General’s position now,” the CCR states, “is that it eliminates the main obstacle to a republican success in a national referendum on the head of state — namely who do you replace it with. Approval by the provinces would still have to take place but with all of the divisive issues already resolved, only a simple referendum on just who our head of state should be would remain.”[13]