A Moore modern monarchy

A Moore modern monarchy
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Try to talk about the monarchy with a Canadian politician and he’ll likely spit that it’s “not a priority.” There are so many other, endlessly more pressing matters to attend to, he’ll say with great stagy exasperation, please don’t worry my important brain with something so trivial.

But recently Canada’s politicians have decided to worry themselves with something very trivial indeed. Last Thursday, James Moore, Prime Minister Harper’s minister of heritage, announced that Canada would be introducing legislation to amend England’s royal Act of Settlement, the thing that determines in which order the various princes and princess ascend to the throne. We already know who’s going to rule for at least the next 70 years, but what about after? We need closure!

Under the terms of the current succession order, which was drafted in the aftermath of Britain’s Glorious Revolution, boy children of the reigning monarch always take priority over their sisters. A woman like Elizabeth was only able to become queen because she had no brothers. Also because she didn’t marry a Catholic; that’s against the rules as well.

Now, back in 2011 you may recall that the various Commonwealth despots agreed-in-principle to turf these rules per the demands of Britain’s Prime Minister Cameron, who apparently has nothing else to worry about. This consultation was deemed necessary under the terms of the 1931 Statute of Westminster, which declares that any country sharing “common allegiance to the Crown” — even Barbados — has to assent to “any alteration in the law touching the Succession to the Throne.” But the Westminster statute also says that agreements-in-principle don’t go far enough, there has to be full “assent as well of the Parliaments of all the Dominions.”

So here we are. Minister Moore’s bill, which was passed unceremoniously by the House of Commons this morning, is a short one, and says little more than “Canada assents to this thing Mr. Cameron wants.” Moore says now the monarchy can be “a vital and modern institution that reflects Canadian ideals,” which I guess almost makes sense, so long as you accept the absurd premise that an institution as inherently sexist, racist, and discriminatory as a system of hereditary birthright within a single British family can ever be brought in sync with an inclusive 21st century western democracy.

What’s most interesting about all this from a Canadian angle, however, is the possibility that our government has just passed a brazenly unconstitutional law.

As I noted in my HuffPo column today, there’s a fair number of constitutional scholars in this country willing to argue that the rules of the monarchy in Canada (or the “Canadian monarchy,” if you’re one of those people) cannot be modified by mere statute alone. As someone who’s debated this issue endlessly in the media, I can’t count the number of times some monarchist has beaten me over the head with the claim that cutting Canada’s ties to the royal family is, for all intents and purposes, “constitutionally impossible,” so strict are our laws governing it.

The debate basically centers around two questions. First, article v, s.41(a) of the Canadian Constitution Act explicitly states that any changes to the “office of the Queen” require a formal constitutional amendment, approved unanimously by the legislatures of all 10 provinces.

Presumably, this “office of the Queen” really means “office of the monarch,” since no one expects the piles of Canadian law that make mention of “the Queen’s” powers to suddenly become invalid once Elizabeth II passes and we get a king. But if that’s the case, doesn’t deciding who gets to be queen alter “the office of the Queen?”

Think about it this way: would some new law setting a five year term limit for all future monarchs alter “the office of the Queen?” How about a rule that Elizabeth will have to run for re-election as monarch of Canada in 2016?

Question two is even thornier. Is Britain’s 1701 Act of Settlement, the law Mr. Cameron wants Canada to change, itself part of the Canadian constitution?

Back in 2003, a republican-minded Toronto city councillor named Tony O’Donohue launched a quixotic legal challenge against the Act of Settlement, on the grounds that as a member of the Catholic faith, it was unfair for Canada to have a law on the books that explicitly discriminated against Catholics. Especially since our Charter of Rights promises freedom from “discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability,” and declares that laws that contradict such progressive sentiments shall have “no force or effect.”

But the supreme court of Ontario threw Tony’s case out on the pretext that the Act of Settlement was no any ordinary statute, but rather one of the cornerstones of Canada’s entire political regime. “These rules are by necessity incorporated into the Constitution of Canada,” said the judge, and you can’t use one part of the constitution to declare another part invalid, no matter how bigoted it may be.

I’d be curious to hear what any budding constitutional scholars in my readership think, but personally, I’m leaning towards judging the Harper government’s actions as unconstitutional for the reasons stated above. It may be a gigantic legal nightmare to go through Canada’s hellish constitutional amending formula just to ratify a couple uncontroversial changes to an archaic piece of British legislation, but them’s the breaks.

Canada supposedly wants to be an independent monarchy, tied to London only through a “personal union” with Elizabeth II herself. Which is all well and good, but that requires some sacrifices as well. Colonies blindly ratify a foreign capital’s legislation; independent countries pass their own, on their own terms, using their own domestic procedures.

Not that a republican like me would have much to complain about if the Canadian government’s rushed approval of Mr. Cameron’s bill is allowed to stand, of course. It’s fun to think what other changes to the monarchy the Canadian parliament could pass unilaterally someday…


  1. dhkendall

    It seems, contrary to the little beaver in your cartoon (which it seems from his previous appearances, I should take to representing "all Canadians" or "the majority of Canadians" or "the average Canadian", that the prevailing opinion re: monarchy in Canada isn't that we want to be a republic, we would have heard much more noise about that by now if we would have, but more that the monarchy doesn't really have any affect in our lives, we should have a more Canadian style of government from the top down (which means, yes, turfing the royals), but it would cost a lot of money (which btw has Queen Lizzie's face on it, you know how much it would cost to redesign all our money? Especially so soon after our last design? And that's just one of the enormous costs turfing the royals would do). We're not concerned with how much work it would be revising our constitution and laws, we're more concerned with how much money it would cost! (To that end, surprised Harper hasn't done it already, the man won't pass up on an opportunity to throw money out the window).

    In short, it would be nice, but more work and cost than it's worth it.

    (I'm wondering if there's an example of another country that has been a constitutional monarchy for a long time, only to ditch them, and see how much it cost them. 150 under the British royals really makes it costly for us. The only other example I can think of is Nepal (although our economies are quite different), I don't knkow how much it costthem to turf their royals (who were resident of the country, to boot. Maybe we should watch Jamaica, as it's making more serious noise than we are about ditching the British royals. Let's see what happens there before we jump into anything.)

  2. Jake_Ackers

    Canada isn't Jamaica or Nepal. Canada doesn't depend on the UK. Moreover, I'm pretty sure Canadian relations would improve with Britain as it doesn't feel its under UK's thumb. What possible benefit does being a part of the British Commonwealth in a grand scale offer than avoiding the process of getting a visa? Nothing. Canada will do so much more being independent than being under the thumb of the UK. Even if it is a just figurative thumb.

    Jamaica's problem with going independent was because its poor and wasn't ready. Canada been running itself just fine.

  3. SES

    "What possible benefit does being a part of the British Commonwealth in a grand scale offer than avoiding the process of getting a visa?"

    It doesn't even keep you from needing a visa. Canadians don't need visas for tourism because Canada is a wealthy and stable country that isn't going to flood Britain with refugees or illegal immigrants. Other Commonwealth countries are not so lucky (and plenty of non-Commonwealth countries are). Jamaicans can't even go visit their own queen without getting visas.

  4. dhkendall

    Actually, you're kind of missing my point and not really up on the latest history. Both Jamaica and Canada are independent nations, but they also both have the Queen as their head of state. Jamaica's been making very serious talk lately about getting rid of the Queen and going it as a republic, to date they haven't, but I wouldn't be surprised if they do in the next year or so, and I'd like to see what they do.

    I do agree that we need to be truly Canadian with our representatives, but my main concern is the cost that is associated with it, which is undoubtedly huge (which is another reason why I want to see what kind of costs it would be to Jamaica if it goes Republican, and what kind of costs Nepal had when they broke their 300 year old monarchy link a few years back). If there's a choice between keeping the status quo and spending a *lot* of money to change it, maybe it's the fiscal conservative in me, but I'll forgo on the huge money thing, if it will cost us way more to ditch it. Let's wait until we can afford it.

  5. Taylor

    I'd compare it to the recent "Maritime Union" proposals. Yes, it would eventually result in savings; yes, it's probably, objectively, the best thing to do. Problem is, it would take 15 years of commissions, meetings, bickering, and haggling to get it done.

  6. J.J. McCullough

    I don't think it will cost much more than updating all the portraits, coins, stamps, letterheads, etc with the face of King Charles once Queen Elizabeth dies.

  7. dhkendall

    That's probably the best way to go about it, make the change to a republic effective when Charles takes the throne because, as you said, we'd be having those costs anyways. Problem is, that could be tomorrow, that could be 5 or 10 years from now. (I wouldn't say much later than that, Lizzie is getting up there … ) We definitely coudln't do it tomorrow, 5 or 10 years maybe if we started the debate now, but we don't seem to want to have this debate now, and with Taylor's guess of 15 years in committee (which seems reasonable), Charles will definitely be on the throne by then, and we'd have passed our chance.

  8. Taylor

    More the endless commissions regarding selection of a new head of state, commissions regarding Aboriginal interpretations (right or wrong, it'd have to be done), complete remodeling of the role of the Queen legally, legislation redrafting, etc. It wouldn't be that clean.

  9. MJA

    You're vastly overstating the amount of work needed to appoint a head of state. We already have one: the Governor-General.

    I also don't think it's at all apparent that any legislation (aside from the core constitutional stuff) would need to be redrafted. The changes needed would be so trivial that you could do 95% of it in a single omnibus. ("all references to 'the crown' and its subsidiary bodies shall, in future, be interpreted as referring to the Office of the Governor-General". Done.)

    As to aboriginal interpretations, you're forgetting a key fact: if an aboriginal band doesn't want to play ball with a Republican Canada, they're welcome to try and persuade the British to honour the treaties. And, yeah, good luck with that.

  10. Taylor

    I'm "overstating" the amount of work it would take to get 10 provinces, aboriginals (whom we would have a duty to consult on this matter notwithstanding your bizarre "key fact"), and the political parties to completely reform the way the government of Canada works.

    Did you see how many panels, investigations, etc. went into saying Quebec was distinct and changing the veto a bit? It took three years and pretty much tore the country apart.

  11. MJA

    "you know how much it would cost to redesign all our money?"

    The British recently redesigned all their coins. The design cost slightly more than $70,000 CAD, implementation costs were minor (the equipment used to manufacture coins is replaced on a regular basis anyhow: replacing it with a new, rather than old, design represents a trivial expenditure), and aside from promotional materials, there were no other substantial expenditures associated with the change.

    In fact, it probably costs more to "turn over" parliament between governments (print new business cards, issue new name badges, replace the door signs, build new websites, all that stuff) than it would to redesign the coins. We do the former much more often than the latter, yet the country hasn't yet gone bankrupt. Funny, that.

  12. Xander77

    Monarchy is "sexist and racist"? Why are you bringing up 20th century objections to a matter that was perfectly handled in the 18th?

    The institution of monarchy is at odds with Liberté, égalité and fraternité. Should a "King Ralph" style plot play out and the next reigning monarch be located in Barbados, that would change nothing about how democracies/republics shouldn't have kings. I really don't think that any, uh, young person who doesn't care about that last bit would be moved to outrage by the racism and sexism inherent in the system.

  13. Jake_Ackers

    So many say it's not a problem, that the monarchy as it's pretty much useless. So if its useless, then why have it? This seems nothing more than some nostalgia for the golden age of the British Empire.

  14. Taylor

    We have it because the system generally works. We're a first world democratic country. Why completely gut our legal system and our long-held, working form of government?

  15. MJA

    Because it doesn't. At least, not really.

    Perfectly acceptable potential citizens have been denied residency and citizenship because they refused to swear an oath of undying loyalty to what amounts to a foreign monarch. Civil servants and police officers have been refused employment on the same basis.

    Not for a refusal to uphold the law, or a refusal to participate within the state, or a refusal to acknowledge the institutions that govern the country, just a refusal to pledge permanent loyalty to a single, specific person–and a person, I might add, who every monarchist tumbles over themselves to portray as insignificant and irrelevant to governance.

  16. Hentgen

    Honestly, if potential citizens or public servants are turned off by the notion of pledging loyalty to a singular person, particularly our Queen, then they're kind of batty. They would have to pledge to *something* no matter what, like a constitution, a flag, a nation, or a God. They are pledging their loyalty to a symbol, what does it matter if it's a Queen?

    The Queen herself made an oath to "govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa, Pakistan and Ceylon, and of your Possessions and other Territories to any of them belonging or pertaining, according to their respective laws and customs?"

    Frankly, I'm no monarchist, but if THIS is the best reason to throw the country into years of constitutional upheaval, that is to say, as a nation we lose out to a bunch of knee-jerk anti-authority types, I'll pass.

  17. Sarah

    It's hardly batty not to want to pledge allegiance to an unelected authority. I think you'll find that there are 300 million people directly to Canada's south who wouldn't make that pledge. In the United States, we pledge our allegiance to the flag yes but also to the REPUBLIC for which it stands. It's quite different to pledge allegiance to a system of government in which you are a full citizen with equal rights to every other citizen and the ability to participate in your government than to an individual person who is given rights that don't apply to any other citizen.

  18. MJA

    And I'm also continually perplexed by this monarchist insistance that getting rid of the monarchy will "gut" our legal system.

    Because, like… it demonstrably won't. Nothing would need to change except the oaths. Everything else can be carried over fully intact.

  19. Taylor

    A) I'm not a "monarchist".

    B) "demonstrably"? How are you demonstrating that? We're both talking about a hypothetical.

  20. Hentgen

    Easiest answer: there does not exist a viable political coalition that can get the reform process off of the ground. Let's not forget that getting rid of the crown raises the question of what we would replace it with. Should we replace the GG with an equally powerless elected figurehead president? Well, jeez, then, why bother with costly elections? A president with powers? What kind, and what Prime Minister would agree to that? Would Senate reform be part of the package?

    I doubt there's real consensus among would-be Canadian republicans on what to replace the crown with, and I think they'd have a hard time finding popular support for reforms that dramatically alter the political landscape of this country.

  21. Taylor

    I would say no, it doesn't require an amendment. Reading 41, it states that unanimous consent is required if "an amendment to the Constitution of Canada" is made along those lines, not any change at all.

    41 only takes effect if something is purporting to be a Constitutional amendment.

    Removing the monarchy would require a constitutional amendment. Changing the order of secession doesn't.

  22. Taylor

    Also, you're misreading the decision. The main weight the justice put on it is in Paragraph 33: That it would break the link to the Crown that is part of the general structure of CA 1867.

    Using that logic, NOT passing the law would be unconstitutional.

    Should note O'Donoughe is before the Superior Court of Ontario (Ontario doesn't have a Supreme Court), and it's a court of first instance. Not a lot of weight there, but it is a well written decision.

  23. J.J. McCullough

    That sounds like circular logic. "You only need to pass a constitutional amendment if you want to pass a constitutional amendment." Fine, so I just want to abolish the monarchy with an ordinary bill. Why can't I do that?

  24. Taylor

    I would say because you would need to explicitly change the Constitution Acts 1867 and 1982 to get rid of the Crown itself.

    The argument would be if the chance of succession does or doesn't require an amendment. I don't think it does. I would have preferred a more assertive bill, though.

    Again, this is pretty subjective. Phil Lagassé wrote an excellent piece in Maclean's that's hard to argue with, and he helpfully pointed me to some other interesting articles on the subject.

    I just really think that the CA 1867 language in the preamble and basically, until edited otherwise, points to the UK monarch being the monarch of Canada as the guiding principle of the whole mess. It might also stem from my belief that the "Queen/King of Canada" distinction isn't that substantive.

  25. SES

    The section of the Statute of Westminster allowing Canada to British consent to legislation was explicitly repealed in 1982.

    Statute of Westminster, 1931, 22 Geo. V, c. 4 (U.K.)

    "In so far as they apply to Canada,

    (a) section 4 is repealed; and

    (b) subsection 7(1) is repealed."

    Section 4 is the part that says "No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof."

  26. SES

    I meant "allowing Canada to consent to British legislation."

  27. Taylor

    That still doesn't prohibit Canada passing similar legislation to the UK, it just prevents the government of Canada from OK'ing a law passed in the UK Parliament to apply to Canada.

    If the UK banned Red Hats, and Canada banned Red Hats, that's perfectly fine.

    All the repeal does is prevent Canada from simply consenting and applying the UK Parlaiment's red hat ban in Canada without particular Canadian legislation to undergrid it.

  28. Taylor

    To be more on topic, though the legislation just does "assent" to the changes, It's not directly applying those changes from the UK legislation, it's using the UK law as shorthand, in a sense.

    Close to the line, but not over it.

  29. Hentgen

    Even if the legislation is unconstitutional, and that's not necessarily the case, who's going to be the obstructionist jerk who challenges a law that ends gender and religious discrimination in our succession process? It's not going to win the republicans any fans with the average Joe.

  30. Joe King

    I'm against the change because it's ageist. For example, I am the 4th child in my family. My sister is the oldest, then I have 2 older brothers. If we were the royal family, this change would make my sister Queen rather than my brother King. Screw that, why shouldn't I be King? Because I was born later? That's an even dumber reason than the kind of genitalia we happen to be sporting.

  31. Pat Dominick Balster

    Whatever determination is to be cast on the argument dare I say over 'Monarchal' rule,it seems hilariously beautiful that eloquent words can be used to prop up one of the two most prevalent of ways the majority of people choose to live by as a country in this world. If;and in most places, country has some documentation they refer to as 'Constitution', which is a total adoption in itself enforced by those given authority to abdicate such on behalf of their nations only makes the reality that there are have's and have nots in this world who find themselves in positions they are not satisfied with. If people ponder the dissolution of such and rape the books in order to find an exact reform that may be logical due to their deeming something illogical, then to what does any form of spouting off(if the respective country has freedom of speech) at there malcontent for the representation s/elected on behalf of the people,for if they pro-port"For the people", then all is what?