As was front page news worldwide, a baby boy was born Monday to Catherine and William Mountbatten-Windsor. We congratulate the couple and wish the newborn a happy and healthy life.
Of course, this is no ordinary child. Under the British rules of succession, Prince George is destined to inherit regency over the remnants of the British Empire. And, under Canada’s present Constitution, he may become King of Canada and our country’s head of state as well.
While this is obviously a proud moment for the new parents, the birth of this potential monarch should also trigger a national conversation about what role the monarchy should serve in 21st century Canada.
We argue that the monarchy in Canada should be abolished. Whatever Canada’s historic ties to Britain, the symbolism of a hereditary monarch is antithetical to a modern democracy that aspires to meritocratic advancement and guarantees equality before the law. Politically, Canadians would never accept the actual exercise of the powers of our head of state by the King or Queen of Britain. We are no longer a British colony and the law must evolve to reflect this change.
Of course, the Dominion of Canada was created by an act of British parliament. Until 1931, Britain had final say over Canadian foreign policy. Until 1949, the Judicial Committee of the Privy Council had final say on Canadian law. Until 1982, we required the consent of the British parliament to amend our own constitution.
We are undoubtedly richer because of the British tradition of parliamentarianism and that country’s common law institutions. But Canada has rightly evolved a separate national destiny. We are now a sovereign country.
The Canada of the 21st century is a country made up of Aboriginal peoples and immigrants from every corner of the globe engaged in a unique multicultural experiment. The freedom of religion enshrined in our Constitution prohibits the state from enacting laws with a religious purpose. The equality rights, also guaranteed in our Constitution, prohibit discrimination on the basis of one’s religion or national origin.
Yet the British rules of succession require our head of state – arguably the most symbolically important role in our political system – to be British and Anglican. Functionally, he or she cannot be Muslim, Jewish, Buddhist or atheist. Explicitly, she or he cannot be Catholic. And he or she must be a British national. Canada’s head of state can never be a resident Canadian.
Three permanent residents are currently challenging the requirement that they pledge allegiance to the Queen in order to become Canadian citizens. Notwithstanding the unfairness that native-born Canadians do not need to swear such an oath to obtain their citizenship, it should strike any thinking Canadian as archaic that our citizenship should require a personal oath to a woman (and her heirs) who owes her position to the lottery of birth.
The argument that the abolition of the monarchy would leave a vacuum is nonsensical. Any intervention into Canadian political process today by a British monarch would no doubt trigger a political crisis. Were Elizabeth II and her descendants deposed from Canada’s throne, our political institutions would be unaffected.
Conceptually, Canadian sovereignty does not require a hereditary monarch as our head of state. The crown need not be worn in order for the authority of the Crown to be exercised. Our federal and provincial governments are sovereign within their respective jurisdictions. The signature on our statutes is that of the representative of the Crown, not the Queen herself.
Functionally, Canada does require some person to be head of state. Presently, cabinet de facto appoints the Governor General. If Canada were to abolish the monarchy, we could simply legalize the status quo by making the Governor General the head of state and vest the power of appointment in cabinet.
Certainly some might advocate a different process for appointing the Governor General. However, this issue is separate from that of a hereditary monarch as our head of state. The discussion of whether there are appropriate restraints on our executive is an important one, but it is for another day. These distinct issues should not be conflated.
Somewhat ironically, it may be the Harper government’s attempt to amend the Canadian rules of succession (though only to remove the sexism, while leaving the religious discrimination intact) that provides the impetus for the dissolution of the monarchy. This past March, the federal government passed a piece of legislation (Bill C-53) without provincial consultation or consent.
Two law professors in Quebec have initiated a constitutional challenge to Bill C-53. They argue that our Constitution requires provincial consent to any changes to the status of the monarchy in Canada. They also argue that the continuing religious discrimination of the rules of succession and the bill’s reliance on an act of the British parliament are also unconstitutional.
The outcome of the case is a matter for our courts, but this litigation should remind Canadians that our elected federal and provincial legislatures can also amend our Constitution to abolish the monarchy.
Yes, the reasons to do this are symbolic. But symbols matter. The British monarchy, reigning by right of hereditary privilege and barring non-Anglicans from the throne, is the wrong symbol for 21st century Canada. We are a sovereign, multicultural democracy where equality before the law is among our highest values. We congratulate the royal couple on their new arrival, but the monarchy in Canada should end with the present Queen.
Jessica Prince is a litigator at Polley Faith LLP in Toronto. Grant Bishop is a graduate from law at the University of Toronto.
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