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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I wanna be… Canarchy?

  1. Our system is now so complex and bureaucratic that it no longer functions for the people. We couldn’t even get equality right int he charter as any decent governance should have equality as immutable in taxations, services and law. These laws, if written right would be simplified and are designed to protect the people. But ours is written to protect the statism bloat of government managing us for bailout and uncommon good buddies.

    Revolutions are meant to clean up this kind of statism mess, so are we going to get some real leadership in this country or live with the decay of this political nonsense?

  2. I would argue that the utilization of fiat currency is a habit based on faith rather than laziness, intellectual or otherwise. The same cannot be said of the presence and role of the Crown in Canada’s system of government. The continuing presence of the monarchy is a quaint holdover from times past. That the Queen is of two bodies is not that scary for someone raised to believe in a system with at its head the Holy Trinity. For most of us, the monarchy and the office of the Governor General are merely ceremonial posts, mostly useless but mostly harmless, and like the mace in Parliament and the wigs and the robes of judges and lawyers, are there for show, much like the costumes of the priests back when Sunday mass was the best theatre in town. When we realize that the Governor General is appointed by Her Majesty herself on the advice of the Canadian Prime Minister, we should indeed ask what would happen if there was no monarch to name said Governor General, and who would fill the void in Canada, since he or she serves at the pleasure of a no longer existing monarch. Time to wake up the slumbering republican in us all: Aux armes citoyens!

  3. The whole system is a legal fiction. We know that. We just don’t choose to give it much thought.

    There is nothing special about the Queen…..she may be a nice elderly lady….but she has no ‘blue blood’, no special genes, and there is no such thing as ‘royal’. In theory the progeny of war lords, in reality the product of a bunch of geneological fudges. Queen of GB till she’s halfway across the Atlantic and then ZAP! and she’s suddenly Queen of Canada….not an English senior citizen at all. If she leaves from our west coast for Australia….halfway there another ZAP! occurs and she’s no longer English or Canadian….but an Ozzie. It’s like Superman and his phone booth…..but with jewellery.

    Anyway…..Britain determines all this. If they choose Charles as the next monarch, we’re stuck with him. If they choose William instead…..that’s who we get. For that matter it could be George….but the point is….Brits decide it. Not us. If they toss the entire monarchy…..ours is tossed as well.

    ANY monarch chosen can’t be RC…..even though that violates our Charter. Have they even bothered to fix the ‘firstborn’ clause if it’s a girl?

    Anyway……our money is the same…..whatever the govt says it will back. We could return to playing cards for that matter.

    None of our rituals and customs are set in cement, carved in marble, ordained by God or exist for time and all eternity.

    Poof. And it’s gone.

    And in history, lots of things have suddenly gone ‘poof’,

  4. I don’t disagree with the analysis. Au contraire. But the question posed by Colby’s text remains, what about the after-poof?

    • Same thing that’s happened in other countries….we go to a president/pm system or a straight presidential one. We could even have a uniquely Canadian one. The GG becomes head of state and represents the sovereignty of Canada, not the sovereign of another country, to us.

      The GG could be chosen by our Order of Canadians…..to serve for 5 years.

  5. “Irishmen of *British* nationality,” surely.

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