Tuesday, June 28, 2011

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.

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