How Canada can (and likely will) block reform of the "British" monarchy

In 1931, the British monarchy evolved into something less specific. Rather than a single monarchy throughout the British Empire, from 1931 on a single monarch has worn several separate crowns - one for each realm (or soverign country) over which the monarch is sovereign. Under the same statute, the realms must all share the same monarch and any changes to the succession must be approved by all of the realms' parliaments.

This is where it gets tricky. Prior to 1982, Canada's parliament could have consented to a change in succession by a simple majority vote in both houses. However, under section 42 of the Canada Act 1982 (i.e. the Constitution), changes "in relation to the office of the [monarch]" can only be made with the unanimous consent of all provinces.

Notwithstanding one-off amendments that only affect a single province, since the adoption of the constitution in 1982 it has only been successfully amended once. And that was under the relatively easy formula which demands the consent of 7 provinces representing 50% of the population. And even that was way back in 1983. It has never been successfully amended using this unanimous formula despite two high profile attempts.

If we look to the lessons of Meech and Charlottetown, it seems unlikely that we will ever be able to get any amendment that requires the broad provincial consent of the 7-50 forumla adopted, let alone through the unanimous one. As I wrote in my earlier post on Senate and constitutional reform:

I suspect (though I'm not sure) that the federal and provincial first ministers and attorneys general looked to the American constitution when they came up with the amendment formula. The US constitution requires 3/4s of states to approve, while ours requires 2/3s of provinces. But ours is more difficult to attain. Why? There are 50 states, but only 10 provinces. That means that it only takes four provinces to stall constitutional reform in Canada, while it would take 13 states to do the same in the USA. It is pretty easy to get 4 premiers, who ordinarily can count on a rubberstamp from their legislatures where they likely hold a majority, to agree to a set of demands. It is much harder to get 13 governors, with legislatures who won't automatically agree with them, to do the same.

The result is ridiculous exercises like the Meech Lake Accord and Charlottetown Accord: provinces band together and get all kinds of quasi-related or completely unrelated demands tagged on to the actual issue at hand in exchange for their support.

Comedic-historian Will Ferguson summed it up best when he described Meech as (I'm paraphrasing from memory) "Provinces: gimme, gimme, gimme" and Charlottetown as "Provinces, women's groups and Aborignal groups: gimme, gimme, gimme, gimme."

Thus, while the British press often write about (and even sue to implement) the idea of (and MPs and Lords try to legislate the) amending the succession either to allow for Catholics to sit on the throne, or to allow an elder daughter to succeed rather than her younger brother, they seem to forget one thing: Canada must agree.

And it doesn't look likely that Canada ever will.

Indeed, even Edward VIII's abdication back in 1936 would be impossible in present day Canada. A constitutional amendment would have to pass 12 legislative bodies (the Commons, Senate and 10 provincial legislatures) before a British King or Queen could step down. So the idea of the Crown skipping Charles for William is just as unlikely.

Yet another reason why I think we need to change the amending provisions. As I wrote in that same post:

The first constitutional amendment we need is one that would prohibit constitutional amendments that aren't addressing one specific issue. That would allow us to have intelligent debate and discussion on constitutional change without adding in everything but the kitchen sink.

Yes I know, never gunna happen. I continue to dream.

How to fix the Senate

Today, word is leaking out about the Stephen Harper's first Senate reform plans that have a hope of passing.

I am a strong proponent of Senate reform, however I disagree with the prime minister's approach.

Stephen Harper's piecemeal approach to Senate reform completely ignores its real problems and would only serve to give democratic legitimacy to a broken body while risking national unity in the process.

One must remember why Canada got a Senate in the first place. As part of the bargain of Confederation, the Senate was made to temper the possibility of wild swings in voter preference from a fickle electorate and to allow smaller regions to have a place where their concerns would have weight.

If Canadians like the monarchy because it differentiates us from our American friends, why wouldn't they like an unbroken Senate? I think they would.

So what is *really* broken with the Senate? Its membership, and more specifically how its members are chosen, and is distribution of seats across the country.

Harper's proposals would try to tackle the membership question in an uneven way (some provinces could choose not to hold elections for Senators) while ignoring the seat distribution question. That's a problem.

Back to the history lesson...

Nationbuilders tend to be either very naïve or (to be more generous) very opptomistic.

The Amercians never foresaw that their grand plan to choose the federal executive through an electoral college would fail in their own lifetimes. The electoral college was meant to have state legislators chose a panel of elders who would in turn select presidents who are above politics and make their chief rivals vice-president a heartbeat away from the presidency. Within 10-15 years, the process was overtaken by partisanship and had to be amended. A few years after that, the whole electoral college process was made a rubberstamp.

At the same time it didn't seem to occur to our own Fathers of Confederation that a body of "sober" statesmen and scholars appointed by the prime minister would quickly evolve to a body of prime ministers' friends and supporters.

However, their idea was pretty good on principle. We have an elected and representative House of Commons. But some times voters do get buyer remorse and in a system with few checks on the executive power, a distinct second legislative body could be helpful. But an elected Senate wouldn't be distinct, it would be a clone of the other place. And thus a waste of money.

If only we had some kind of proven means to neutrally select and recognize preeminent Canadians. If we did, maybe we could get them to be Senators?

Wait! We do! There is the Order of Canada.

There are 165 companions of the Order of Canada and 105 Senators (later I will suggest this should be 120). From among these we could likely put together a geographically representative Senate filled with the sorts of folk that it was always meant to be filled with. If 105 (or 120) Senators couldn't be drawn from among them for reasons of geography or willingness, one could always turn to the officers (2nd tier) members. The companions could elect the Senators in the same way heritary peers did when they were largely phased out in Britain. This would remove political interference and cronyism from Senator selection while still allowing for a body of sober second thought.

Now onto the Senate's composition. The idea was to have regions with equal power in the Senate. At first, this was adhered to. Ontario, Quebec and the Maritimes each got 24 seats. When PEI joined, Nova Scotia and New Brunswick became the only provinces in history to lose Senate seats as their numbers were reduced by 2 each to give PEI their 4.

Later, Senate seats were added haphazardly without regard to regions. This broke the regional representation model of the Senate.

This model should be restored in the following fashion:

• Maritimes (24) + Newfoundland (6) should make a new 24-member Atlantic region;


• The Ontario region (24) and the Quebec region (24) would remain unchanged;


• The West (24) + Yukon (1) + NWT (1) + Nunavut (1) should be split into a Prairie region of 24-members and a Pacific and Arctic region of 24-members.

This is how the results could break out by Senate seats by province:

• Ontario and Quebec - 24 each


• British Columbia - 21*


• Alberta - 10


• Saskatchewan, Manitoba, New Brunswick, Nova Scotia and Newfoundland - 7 each


• PEI - 3


• Yukon, NWT and Nunavut - 1* each

* - the constitution should make an allowance for each of the territories to get 3 seats should they become provinces, to be offset by BC gradually going to 15 seats.

This all sounds pretty easy right? If it were, I suspect Stephen Harper would take an approach like this. But it isn't. The problem? The constitutional amendment mechanism.

I suspect (though I'm not sure) that the federal and provincial first ministers and attorneys general looked to the American constitution when they came up with the amendment formula. The US constitution requires 3/4s of states to approve, while ours requires 2/3s of provinces. But ours is more difficult to attain. Why? There are 50 states, but only 10 provinces. That means that it only takes four provinces to stall constitutional reform in Canada, while it would take 13 states to do the same in the USA. It is pretty easy to get 4 premiers, who ordinarily can count on a rubberstamp from their legislatures where they likely hold a majority, to agree to a set of demands. It is much harder to get 13 governors, with legislatures who won't automatically agree with them, to do the same.

The result is ridiculous exercises like the Meech Lake Accord and Charlottetown Accord: provinces band together and get all kinds of quasi-related or completely unrelated demands tagged on to the actual issue at hand in exchange for their support.

Comedic-historian Will Ferguson summed it up best when he described Meech as (I'm paraphrasing from memory) "Provinces: gimme, gimme, gimme" and Charlottetown as "Provinces, women's groups and Aborignal groups: gimme, gimme, gimme, gimme."

The first constitutional amendment we need is one that would prohibit constitutional amendments that aren't addressing one specific issue. That would allow us to have intelligent debate and discussion on constitutional change without adding in everything but the kitchen sink.

Then we should have a sensible discussion about a second constituional change to fix the Senate.

Yes, I know that this will never happen. One can dream.