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I wanna be… Canarchy?

Did Canada really patriate its constitution in ’82? The official answer: not quite.


 

The troublemakers are back. Philippe Lagassé and James Bowden have taken to the University of Alberta’s august Constitutional Forum journal with their argument against the government’s whistling-past-the-graveyard approach to changes in the royal succession. You will recall that when the government of the UK decided to go ahead with the changes, which will treat princes and princesses of the blood on an equal footing from now on, Canada’s Parliament passed an ordinary statute “assenting” to the new order. It’s called the Succession to the Throne Act: you can read it here and battle with the fine details yourself. The law-review article is fun, according to my weird idea of fun, and instructive.

I suppose everybody is familiar with the existential queasiness that goes along with thinking about fiat currency. You realize it’s all just paper supported by nothing by a common undertaking of the species, one which in its turn is accepted mostly out of habit and ignorance; and you get a little scared. The debate over how Canada gets new rules for deciding who’s to be the next monarch is much like that. As Lagassé and Bowden emphasize, the Canadian Crown literally is the Canadian state; the succession question is, at its ultimate root, the question of whose utterances are law and whose aren’t. But it turns out that there is a disturbing infinity of opinions on how the office of monarch transfers, as it is supposed to do continuously and automatically.

The view taken by the government is that the parliament of the UK makes succession law for all of the Queen’s realms, and the Canadian parliament’s place is merely to assent in advance. In this case, our representatives assented to a law that had not yet attained its final written form. It is not clear that the government regards its succession statute, let alone an amendment to the Constitution, as strictly necessary—what on earth, one wonders, is their theory about what would happen if we did not, or could not, pass one?

This seems to be an official acknowledgment that the UK, despite the alleged patriation of the Constitution, actually can still make binding law for Canada, and that our state is in one sense still contained within Britain’s. (Some scholars answer this objection by basically just saying “Yep, that’s right.” Feeling nauseous and weirded out yet?) But the right to legislate for Canada is one that the Old Country has formally renounced; and other dominions, notably Australia and New Zealand, have stated that the UK cannot make succession law for them, and have acted according to that belief.

The whole mess has the flavour of an idle theoretical exercise, a question of counting how many future queens can dance on the head of a pin. But Lagassé and Bowden point out one scenario in which the idle theorizing would suddenly have the intensity of a comet impact.

…if the courts accept that British law alone decides matters of royal succession for Canada, or that Canada remains under the sovereignty of the British Crown owing to the preamble of the Constitution Act 1867, then this interpretation raises the issue of how a transition to a republican constitution in the United Kingdom would affect Canada. …the very constitutional amending process that the Succession Act is meant to avoid could be triggered by the legal logic that underpins it.

The authors describe this “Britain abandons the monarchy first and pulls the rug from under us” scenario as “highly unlikely”. This strikes me as rank optimism. Over hundreds of years, the probability of a republican outburst somewhere in the Commonwealth naturally approaches 1. And active hostility toward the monarchy is very much stronger in the country that has to foot most of the bill for one.

Canada has republicans, ones convinced of the curious idea that being a constitutional monarchy somehow makes us less than “adult” as a polity. (It is never clear how having an older, better-tested style of government should make us less mature, or why sustaining our cultural, ethnic, and intellectual ties to Britain should be less grown-up than imitating the Americans in a fit of little-brother envy; yet the republicans think this way all the same.) But our republicans are a pretty passive, harmless bunch. They do not tend to regard the Queen personally as a sinister parasite and a moral absurdity, the way millions of Englishmen (and especially Irishmen of English nationality) seem to.

If the Canadian Crown is separate from the UK’s, which is what we have all been taught and what we have all professed for a long time, a fit of republican madness in Britain that did not take hold in Canada would pose no particular theoretical problem. We could carry on with the establish rules of succession, and we might end up with a resident monarchy in the bargain. But the new theory being espoused by our government eliminates that option. If the unity of the Canadian Crown and the British one is in some way a legal axiom of our system, an act of British law that vacated the throne or transferred sovereignty to some republican office or assembly would presumably be valid for us.

At the very least it would require us to re-establish a separate monarchy or republican alternative on an emergency basis, presumably through some improvised national witenagemot without pre-established rules and without any basis of legal legitimacy. This would get ugly in a hurry. It might turn violent, or at least rancorous; it would certainly lead to political opportunism and abominable mistakes. We are unprepared for it, and it is the sort of thing that, in the very long run, we ought to be prepared for. God bless the troublemakers for at least perceiving the possibility.


 

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