“Amendment by unanimous consent
41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:
(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;”
- Constitution Act, 1982, Part V – PROCEDURE FOR AMENDING CONSTITUTION OF CANADA
“Canada supports updating royal succession rules so that a daughter of Prince William can take the throne one day, a spokesman for Prime Minister Stephen Harper says.”
- Canada supports royal succession rule change, By Laura Payton, CBC News, Posted: Oct 13, 2011 12:31 PM ET
One could sit down and argue about the need of the monarchy. But I will not. For one thing is obvious, the Harper Government will not deal with the issue of the Rules of Succession for the Monarchy. This might seem like an extreme position to take. However, I assure you that the truth and the reasoning is simple: Mr. Harper does not want to have to amend the Canadian Constitution. In the early eighties, Mr. Harper was an aide to a Progressive Conservative Member of Parliament. Under the Mulroney years, he saw the hardship that can come with amending the constitution.
In dealing with other constitutional issues, including Senate Reform, Mr. Harper has chosen to side step the General Amending Procedure. So why would Mr. Harper take on the harder task of amending Canada’s head of state. Updating this part of the Constitution is a huge mind field and this Prime Minister is not brave enough to take it on. However, to understand this let us look at the history.
In the 1930’s, Canada was a part of the self-governing polity of the English Empire. So updating of English Constitutional Law, at the time, had some effect on us. English Constitutional Law was being changed for a number of reasons. For example, to contend with the growing calls of the Dominions for more power, the Statute of Westminster was passed in 1931. It allowed for Dominions within the British Empire to largely administer themselves.
Then there was the case of Wallis Simpson. That simple love affair led to the Abdication of Edward VIII through the Abdication Act (i.e. His Majesty’s Declaration of Abdication Act 1936). Passed by the British Parliament, this act allowed the Throne to be passed to Prince Albert, Duke of York, who became King George VI. For me, the most interesting part of this story was the Canadian Reaction. Our Federal Government acted differently than every other Dominion in the Commonwealth. The Irish, for example, passed the Executive Authority (External Relations) Act 1936. Or put differently, the Irish changed their rules of succession. On the other hand, Australia, the Union of South Africa, and New Zealand gave their consent. Yet, Canada did something different.
In 1936, the Canadian Government gave consent to the actions of the British Parliament. They passed an Order-in-Council to authorize their consent. This was the law and was legal. However, in 1937, the Canadian Parliament passed the Succession to the Throne Act. This act ensured that Canadian Jurisprudence was in line with other jurisdictions.
Unlike other parts of Canadian Law, the Crown was defined in clear terms. No longer would Canada have to refer to English Constitutional Law, Precedence or Tradition; as the Canadian Parliament declared a Canadian line of succession. The problem for the Harper Government is that this law is now a part of the Canadian Constitution.
For, as far as I can tell, the Succession to the Throne Act is still in force. Nothing in the SCHEDULE to the CONSTITUTION ACT, 1982 mentions it; nor do any previous constitutional amendment mentions it either. If this is the case, then a whole set of problems ensue. Or put differently, when the Constitution Act, 1982 came into force; it crystalized the existing powers of the crown. The problem is one of those powers is the line of succession as described by the Succession to the Throne Act, 1937. For some proof, just look at the original British North America Act. Section two of the act started that “the provisions of this Act referring to Her Majesty the Queen extend also to the Heirs and Successors of Her Majesty, King and Queens of the United Kingdom of Great Britain and Ireland.” While that portion of the act was repealed in 1893, the sentiment still remains as a part of Canadian Law. For, we still keep track of the order of succession. So when Prince William, Duke of Cambridge, came to Canada, we understood he is second in line to the Crown, as per the Act of Settlement of 1701 (UK) and the Succession to the Throne Act, 1937 (Canada).
Consequently, a change to the order of succession is a change to the office. And by section 41 (a) of the Constitution Act, 1982, any change to the “office of the Queen, the Governor-General and the Lieutenant-Governor of a province” requires the consent of the federal Parliament and all provincial legislatures.
Given that Stephen Harper has not been willing to go to various provinces to seek consent to change the Senate, one could assume he will not go to the provinces over changes to the succession of the crown. However, in the unlikely case that he does, one could not see the Right Honourable Stephen Harper getting unanimity and there are two reasons for this. Firstly, it is hard to see how ten provinces could come together on any issue right now. Alberta and BC, for example, are required to hold referendums on any constitutional changes. Without some form of Senate reform, those two western provinces are not likely to agree to any changes to the Crown. The National Assembly, in Quebec, is not likely to approve any changes to the crown without some quid pro quo; while Ontario has a minority government. This does not bode well for the changes that need to be made.
The second reason for my conclusion comes from Stephen Harper himself. His government has not been known for its “conciliatory” nature. Stephen Harper is brash and has offended a number of Canadians. BC, Newfoundland and Prince Edward Island have all been given ultimatums from the Federal Government over RCMP policing contracts. Ottawa has demanded the return of HST harmonization money from BC. Mr. Harper’s government has taken on various unions and the Parliamentary Budget Officer. He has fired Linda Keen, the Canadian Nuclear Safety Commission chair, for doing her job. This does not include the recent changes to federal health expenditures or provincial discontent over changes to the Criminal Code. Mr. Harper has not shown himself to be a negotiator like previous PM’s like Trudeau or Mulroney. So why would Mr. Harper want to take on a monumental Constitutional challenge now? Or, who would support him?
Accordingly, Canada will not change its Constitution and by the rules of the Commonwealth Crown, if one realm will not change its governing law; the law cannot be changed in all realms. So the English are dependent on Canada to amend the Act of Settlement. Yet Canada will not act. Now do you see why Canada will prevent the modernization of the British Commonwealth?