The CCR proposal may look good on first appearance, but it soon pales when subjected to close scrutiny. This reform calls upon the prime minister to alter his or her procedure for making nominations to the Queen regarding the appointment of any new governors general. As such, the prime minister alone has the power of life or death over the proposal. If he or she does not care for the idea, it’s dead. Stephen Harper, of course, showed no interest in this proposal, and neither has Prime Minister Justin Trudeau or any of the other federal leaders as of 2017. Even if such prime ministerial support for this idea could be found, the proposal still faces major obstacles. If the selection of the governor general is to be left to the federal Parliament, there will be inevitable complaints from the general public that the process is closed and elitist, while premiers will contest that they and their provinces are being shut out of this important decision-making. But even if the selection process is expanded to include all elected parliamentarians in Ottawa and all ten provincial legislative assemblies, the charge of rule by elites will still be in the air. The alternative, though — the direct election of the governor general — opens up all the questions and problems we have already assessed. Partisan or non-partisan election? What threshold for victory? Should there be socio-demographic rules of candidate eligibility respecting the rotation of the office between French and English Canadians; males and females; white, visible minority, and indigenous Canadians?
The problems here, moreover, are merely the superficial ones. The CCR proposal also inevitably runs into constitutional problems in at least two ways. If systems were ever put into practice, with the prime minister obligated to recommend to the sovereign the nominee selected either by the parliamentary body or by the Canadian people through an election, the new process could be challenged as a violation of section 41 of the Constitution Act, 1982 in that the method of appointing the governor general had been changed without having followed the procedures for amendment set down in that section. In their decision in the 2014 Senate Reference case, the Supreme Court of Canada unanimously ruled that legislative proposals emanating from the federal government alone, designed to alter the way the prime minister makes appointments to the Senate by enabling him or her to appoint senators on the basis of proposed popular consultative elections, were tantamount to constitutional amendments through the back door, and as such were illegal. The key problem for the judges of the Supreme Court was that this proposed appointment process for the Senate sought to establish procedures to regulate and structure prime ministerial discretion in such appointment-making without these new rules being ratified by a valid constitutional amendment involving the provinces.[14] Substantial alterations regarding how appointments countenanced by the constitution are to be made must be subject to consultation and ratification through the prescribed rules of amendment outlined in the constitution. This ruling would likely be the case for vice-regents as well. The de facto elimination of prime ministerial discretion to recommend governor general nominees to the sovereign would be unconstitutional. But even if this assessment is erroneous, and such a process did get established in Canadian political practice, once the Queen dies the proposal still requires that there be a constitutional amendment to abolish the monarchy in Canada and to establish the governor general/president as Canada’s head of state, subject to this newly established method of selection/election.
Even though the CCR seeks to gloss over the procedural issues here, making brief mention of the need for provincial consent to these changes followed by popular ratification through a “simple referendum,” both of these matters would pose huge difficulties for the republican cause, for all the reasons canvassed above.
Given the rigours of confronting section 41, some republicans have been searching for ways to rid ourselves of the monarchy that do not require constitutional amendment. Perhaps the most intriguing of these approaches was put forward by the late Edward McWhinney, political scientist and former Liberal member of Parliament. He surmised that the monarchy could be eliminated by the federal government simply refusing to recognize Charles as king once Elizabeth II passes away. McWhinney’s proposition, published in 2005, specified that once the Queen dies, the government of Canada could “sever the last Imperial constitutional ties” to the United Kingdom “by simply failing to proclaim any legal successor to the Queen in relation to Canada.”[15] Upon the death of a sovereign, the Canadian federal government has always been in the tradition of “proclaiming” the new monarch as the country’s next head of state. But the federal government doesn’t have to do this, and if not, McWhinney argued: “The ‘office of the Queen’ would thus remain but remain inactive and like very many other ‘spent’ sections of the Constitution Act, 1867, presumably wither away and lapse by convention.” The governor general would then assume the role of head of state, and Canada would become a de facto if not a de jure republic. Needless to say, the CCR has endorsed this idea as a way forward. Monarchical rule would be ended and Canada established as a republic, all by the simple expedient of leaving the throne with respect to Canada vacant, with this action not requiring any constitutional change under section 41.[16]
Alas, this elegantly simple, apparently brilliant, exit is too good to be true. D. Michael Jackson and Ian Holloway, both legal scholars, have torn massive holes into it, arguing that McWhinney’s proposal betrays a gross misinterpretation of the Canadian constitution and the common law understanding of royal succession. The monarchy is embedded within the constitution through the constitution acts of 1867 and 1982. These documents entrench the monarchy within this country, and the 1982 amendment procedure implies that the monarchy is owned equally by the federal and provincial governments, since all of their agreements are necessary to make any change to the institution.
Nothing in the constitution suggests that the federal government, on its own, could in any way terminate the effective life of the monarchy simply by refusing to make a ceremonial proclamation. “For the government to do what McWhinney urges,” writes Holloway, “however clever it might seem on paper, would be contrary to the plain purpose of those who framed our system of government.”[17] Any such action, or more appropriately non-action, of the federal government in refusing to proclaim the new monarch would require the authorization of the prime minister. Given the dubious legal grounds for undertaking this initiative and the likely criticism from various provincial governments that the federal government was seeking the unilateral alteration of the status of the monarchy in Canada without a formal constitutional amendment, thereby rendering the federal action unconstitutional, it is hard to imagine any prime minister of any political party engaging in such reckless political behaviour. Jackson also points out the logical fallacy in McWhinney’s proposal. If McWhinney was correct and the federal government on its own can eliminate the effective role of the monarch in Canadian constitutional life, the country would be left without a government. By the terms of the Constitution Act, 1867, the monarch is a legally required constituent element of Parliament; therefore, without the monarchy, there would be no Parliament. With the absence of the monarch, moreover, the prime minister would not be able to appoint a governor general because the legal power to do so resides in the monarch alone.[18]
Beyond these obvious problems, matters that should have been known to McWhinney, his “No Proclamation” proposal is fatally flawed by its misunderstanding of the practice of royal succession. According to English common law dating back to the Middle Ages, succession occurs instantaneously upon the death of the old monarch. The very moment Elizabeth II dies, Charles becomes king, immediately acquiring all the rights, responsibilities, privileges, and powers accruing to the monarch throughout all his realms. In British law, with its English antecedents, there can never be a single second when the throne is vacant, when the country is without a sovereign ruler. The later official proclamation of the new sovereign’s accession to the throne is simply a ceremonial recognition of a succession that has alr
eady taken place due to the death of the former sovereign, with the proclamation itself in no way affecting the legal status of the new sovereign. The reverse would also hold true. Even in the absence of such a proclamation in Canada, the new sovereign would continue to be the king of Canada. The succession, Holloway affirms, “does not depend upon the positive action of either the Privy Council or Parliament. That is why the old saying ‘The king is dead; long live the king’ represents an accurate statement of the law.”[19] As long as there is no amendment to the Canadian constitution abolishing the monarchy prior to the death of Elizabeth II, the succession will occur automatically, independent of any wishes or protests in Canada. Charles, Prince of Wales, is the man who will be king, and, at some point in the future, provided that he does not predecease his mother, the words will be spoken: “The Queen is dead; long live the King.”
Facing this pending reality, the CCR has grasped at supposed succession-blocking straws. They have questioned the grammar of the Constitution Act, 1982: “[I]t’s not entirely clear,” the CCR asserts, “whether ‘the Office of the Queen’ in section 41(a) of the amending formula of our constitution, applies to a king.”[20] With this observation, they aim to suggest that the Canadian constitution only recognizes female monarchs and that Charles can never rise to be our sovereign because he is male. The CCR does nothing to bolster its credibility by advancing such juvenile claims. Under British and Canadian law, any constitutional reference either to “the Queen” or “the King” is understood as applying to the monarch in general and any successor, be that successor male or female. The Constitution Act, 1867, vested full executive authority in and over Canada “in the Queen” at the time Victoria. Upon her death in 1901, and the succession to the throne of Edward VII, the Constitution Act, 1867, did not need to be rewritten to take account of the fact that a king now sat on the throne rather than a queen. The federal Interpretation Act, 1985 is the current source of this legal understanding in Canada, and its section 35 states: “In every enactment, ‘Her Majesty,’ ‘His Majesty,’ ‘The Queen,’ ‘The King,’ or ‘the Crown’ means the Sovereign of the United Kingdom, Canada and Her or His other Realms and Territories, and Head of the Commonwealth.”[21]
Will and Kate and the Succession to the Throne Act, 2013
The most recent republican challenge to the constitutional status of the monarchy in Canada is an object lesson in how good intentions respecting monarchical reform across the Commonwealth can quickly become a constitutional problem in this country. In 2011 British prime minister David Cameron announced plans to modernize the rules of succession to the Crown by ending the rule of male primogeniture and abolishing the prohibitions on anyone married to a Roman Catholic ascending the throne. These new rules were designed, in part, to ensure that if the firstborn of Catherine, Duchess of Cambridge, were a girl, she would have precedence over any later-born male sibling. As it happens, the baby she was carrying at the time was male, but the wheels were set in motion for important changes. The British Parliament passed legislation, the Succession to the Crown Act, 2013, confirming these changes in British law. The British government subsequently requested that all the other governments of the Commonwealth realms establish their own legislation acquiescing to what the British had done in order to ensure consistency with the line of royal succession. Here the Canadian story becomes predictably fuzzy.
In 2013, the Conservative government of Stephen Harper drafted a short piece of legislation essentially recognizing and affirming the British law, accepting the new rules of succession, and ensuring that whoever is the sovereign of the United Kingdom would also be the sovereign of Canada. This Canadian act explicitly referenced the British legislation, stipulating that the legal language found in this British act would be accepted as amendments to the rules of succession as understood and approved by the Parliament of Canada. The Canadian legislation, the Succession to the Throne Act, 2013, was passed by the House of Commons on February 4, 2013, without debate. It received royal assent on March 23, 2013. In the lead-up to this passage, the federal minister of Justice had consulted with all the premiers, and they had agreed to these changes being made by virtue of one piece of federal legislation. According to the federal government and all ten provincial governments, the reforms to the line of succession were mere housekeeping matters of reform designed to ensure that all Commonwealth realms recognized the same line of succession as found in the United Kingdom. These changes would not touch upon the “office of the Queen” and the powers and status of the monarch. Federal Minister of Justice Rob Nicholson explained:
The changes to the laws of succession do not require a constitutional amendment. The laws governing succession are UK laws and are not part of Canada’s constitution…. Furthermore, the changes to the laws of succession do not constitute a change to the “office of the Queen,” as contemplated in the Constitution Act, 1982. The “office of the Queen” includes the Sovereign’s constitutional status, powers and rights in Canada. Neither the ban on the marriages of heirs to Roman Catholics, nor the common law governing male preference primogeniture, can properly be said to be royal powers or prerogatives in Canada. As the line of succession is therefore determined by UK law and not by the Sovereign, The Queen’s powers and rights have not been altered by the changes to the laws governing succession in Canada.[22]
A number of legal and academic commentators, however, were quick to take exception to this position. They stressed that the British and Canadian Crowns are distinct, and that the alterations to the succession found in this act do constitute an amendment to the “office of the Queen” requiring ratification subject to the rules of section 41 of the Constitution Act, 1982. Garry Toffoli and Paul Benoit of the Canadian Royal Heritage Trust argued that the Act of Settlement, 1701 and the Royal Marriages Act, 1772, setting forth the rules of succession, have been long incorporated into Canadian law as old imperial statutes governing the operation of the constitution in Canada and the monarchy’s role within this constitution. The separate role that Canada can play in overseeing the working of the monarchy in this country, moreover, was recognized by both the British and Canadian governments when the Canadian Parliament was called upon to ratify the abdication of Edward VIII in 1936. The necessity for separate Canadian legislation to deal with this matter signified that Britain alone could not legislate this change in the status of the monarch for Canada, and that the Canadian Parliament had a vital role to play in managing the line of succession. According to Toffoli and Benoit, this precedent signifies that Canada possesses its own rules of succession, derived from the United Kingdom but now enshrined in Canadian law and practice. Also, since 1982 and the patriation of the constitution from the United Kingdom, the British Parliament has lost any ability to legislate for Canada on any matter, including any alterations to the rules of royal succession. For the Canadian Parliament in 2013 to simply affirm the text of the British Succession to the Crown Act, 2013 is therefore constitutionally dubious. No British act can have any effect on Canadian rules of succession, even if the Canadian Parliament consents to that act, because the British Parliament has no right to legislate for Canada. What the Canadian government needed to have done, Toffoli and Benoit suggested, was to have drafted their own legislation affirming the end of male primogeniture and the elimination of the prohibition of the monarch being married to a Roman Catholic, rather than simply accepting a British act to this effect. Indeed, such independent legislative courses of action were followed by Australia and New Zealand.[23]
Philippe Lagassé, a constitutional expert at the University of Ottawa, also challenged the federal government’s logic that a mere alteration to just some of the rules of succession does not rise to the level of a fundamental change to the “office of the Queen” requiring a formal constitutional amendment. According to Lagassé, the Constitution Act, 1982 states that matters affecting the Queen require unanimous consent of Canada’s legislatures to amend. Since succession deals with the office o
f the Queen by definition, changes to the rules of royal succession require a unanimous constitutional amendment.[24] If this is true, however, and Canada was unable to secure an amendment establishing the same rules of succession in Canada as found in the United Kingdom and the rest of the Commonwealth, the effect could be that the latter states would possess a law of succession rooted to the new rules of gender equality while Canada would continue to be governed by the ideas of male primogeniture. Depending on the circumstances of the royal family, at some point in time the United Kingdom and the rest of the Commonwealth could recognize a female heir to the sovereign as queen while Canada would have to recognize her younger brother as king. To visualize the problems here, just imagine if the genders of William and Catherine’s first two children had been reversed.
Two constitutional law professors from Université Laval, Geneviève Motard and Patrick Taillon, agreed with Lagassé’s conclusion. They went so far as to bring a constitutional challenge against the legality of the Succession to the Throne Act, 2013 before the Quebec Superior Court, asking the court to rule the act unconstitutional. In this litigation, Motard and Taillon asserted that the terms of this act do constitute an amendment to the Constitution Act, 1982 in that it did seek to define “the head of state of both federal and provincial orders of government,” but this amendment “does not follow the amending procedure and no resolution has been passed by the legislative assembly of any province.”[25] As of September 2017, this case was on appeal before the Quebec Superior Court. The federal government was defending the relevant legislation and the manner by which it was authorized as fully constitutional, alleging that this act did not in any way touch upon the “office of the Queen,” and thus did not require ratification through section 41 of the Constitution Act, 1982.
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