Given the imminent arrival of Prince Charles and Camilla, several members of the Canadian
commentariat have weighed in on the issue of the monarchy most, like the
Globe and Mail’s Jeffrey Simpson and the
Ottawa Citizen’s Janice Kennedy - who are pretty ‘normal’ examples of the mainstream opinion - demonstrating a high degree of contempt for the Constitution.
Simpson says:
”Canada has the luxury, assuming the Queen remains in good health – long may she reign! – to prepare for the transition to making the Office of the Governor-General the office of the head of state, period. No constitutional debates about whether the Queen or G-G is head of state, de jure or de facto, distinctions that leave all but the most discerning foreigner, to say nothing of ordinary Canadians, baffled.
There is no golden formula for executing this move, although options abound. The head of state could be selected by Parliament, the people, or the 150 Companions of the Order of Canada, a representative sample of the best citizens the country has produced.
We need only to make the decision that we should make a decision, and then figure out the modality to executing it. Polls, for what they are worth, suggest that Canadians in the majority would be prepared for a change, sensing that, yes, the time is right.”
Kennedy says:
”It is time to say goodbye to our indisputably British monarch. And it's time to replace that monarch with an indisputably Canadian head of state -- legally, culturally, constitutionally and no longer merely the "de facto" noted recently by Rideau Hall.
Predictably, conservative alarmists warn of dire consequences for such rashness, as if we'd be severing the limb of our own past and then bleeding to death. Some, like Calgary Herald columnist Naomi Lakritz, actually predict that a monarchy-free Canada would "only be able to identify itself as U.S. Lite." Except that it's not a limb we're severing. We won't bleed to death.
The power of the monarch -- yes (sigh), our official head of state -- is primarily and effectively symbolic, like the power associated with heads of state in numerous modern democracies around the world. So worrying about the modalities of choosing a head of state is pointless.
In Canada, if we ever got off our duffs and decided to add symbolic independence to actual independence, we could even maintain the process we have now for finding governors general, with governments appointing well-regarded Canadians to the post for fixed terms.
Those figures' authority would derive from and reside permanently in the people and nation of Canada, not in an anachronistic echo of our history.”
That’s all true enough and it’s all well and good, as far as it goes but along comes uncommonly sensible Norman Spector to remind them and us, in this article, reproduced under the Fair Dealing provisions (§29) of the Copyright Act from today’s
Globe and Mail web site, that we DO have a Constitution and that matters:
We're stuck with Chuck
Norman Spector
Saturday, October 31, 2009
On the eve of the Royal visit, I’m afraid that the antis will just have to suck it up. For the dwindling number of monarchists among us, on the other hand, there’s some good news: it doesn’t really matter what Canadians think about the institution. All the talk (including all the ink being spilled) about nuking the monarchy is just that — talk.
According to the Constitution Act, 1867 (once known, by the way, as the British North America Act, 1867), “The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.” In other words, the Queen (or the future King) is our Head of State. As Prime Minister Stephen Harper recently reminded the Governor-General.
Far from changing that provision when our Constitution was brought home from London, prime minister Pierre Trudeau was forced to agree to the premiers’ preferred amending formula in order to cut the deal. And, let’s be frank: that amending formula has cast the monarchy in stone. For the ages.
According to section 41 of the Constitution Act, 1982, it would take “resolutions of the Senate and House of Commons and of the legislative assemblies of each province” to cut our ties to the monarchy. Forget about Senate obstruction: If we learned anything from the failure of the Meech Lake accord, it’s that it’s virtually impossible to get unanimous agreement of governments in this country even on the time of day. And the Charlottetown accord taught us that opening the constitution is a recipe for everyone to put forward his or her shopping list of reforms. Which is why no government — even Québec — wants to do it.
So get over it. The monarchy is here to stay. The majority of us, I suspect, will get on with our lives. As to those with strong feelings on either side of the issue, here’s my advice: Make the best of the situation. As I hope Prince Charles and his Royal Consort will do as they travel our magnificent country in the coming days.
But, Spector is wrong to say that we are “stuck, for the ages.”
There
IS a provision to change the Constitution. While I agree with Spector that there is NO political will to do that, it means that the
possibility of changing the
form of the head-of-state is
Constitutionally possible. Although getting rid of the monarch (but not the monarchy,
per se) is a bigger ‘deal’ than getting rid of British
honours (lordships and knighthoods, etc) we did that in 1919 without ever passing a law – the
Nickle Resolution asked the sovereign to stop awarding titles to Canadians and the sovereign is
obliged – by the really, really important and wholly unwritten parts of the Constitution - to obey the will of her Canadian parliament; and the British parliament in Westminster is, equally,
obliged to respect Canada’s sovereignty in
all matters related to the Throne of Canada.
A simple resolution saying, for example, that Canada does not recognize the UK’s various Acts of Succession and Settlement (which discriminate against Roman Catholics and, therefore, offend our Charter values) will be sufficient to prevent Charles from claiming or ascending to the Throne of Canada on the sad day when his mother, our most gracious sovereign lady Elizabeth, dies – as she will. There will still be a Throne of Canada, not one word of the Constitution Act (1867 or 1982) will have been changed, and we will, explicitly, remain a constitutional monarchy, the
’property’ of the lawful heirs and successors of Queen Victoria. But, since we will, on a fine Constitutional point,
disagree with the UK and Australia and several other countries about just who those
lawful heirs and successors might be, the new King of Australia and, separately, of new King the United Kingdom will not be the new King of Canada because he and his mother, respecting the will of Canada’s parliament as, Constitutionally, they
must, will have surrendered
his claim to
our crown.
The situation that will obtain is that we will not have a
named sovereign. Our sovereign will be absent. Our sovereign will exist, somewhere, we will suppose, but we will be unsure about who (s)he may be. Constitutionally we will all
assume that, eventually, we will get around to naming a sovereign but, in the interim – a long, long, long interim, we will
select (somehow) a
Regent1 of Canada. The regent – we can call him or her whatever we want, governor general, president, whatever, just not king or queen, and we can select him or her in pretty much any way we want – will be
both the
de facto and
de jure head-of-state.
----------
1. The Wikipedia article is useful because it links (by FN 1) to the OED’s definition - which specifies that a regent may 'protect' the throne during the
absence of the monarch - and it shows the long list of regents in current and former monarchies, demonstrating that regencies are not abnormal.
