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…