I was pleased to see this Konrad Yakabuski op-ed in the Globe today.
My underlying concern with the royal succession case are well-articulated by Yakabuski: Canada’s handling of this question betrays a willingness avoid the constitution at all costs, even if that means breaking with past precedent, fudging the distinction between the Crown in right of Canada and the Crown in right of the United Kingdom, and sowing the seeds of future controversy around the pre-eminent institution of the Canadian state.
As someone who studies institutions and how they change, though, I realize that Canada’s handling of the monarchy has always been political and shaped by institutional constraints.
From the end of the First World War to 1978, Liberal governments used the Crown to advance a nationalist agenda. The Crown was progressively Canadianized and cast as a separate institution from the British monarchy. Like the flag and other national symbols, it was important to forge a distinctly Canadian Crown to advance the idea of an independent Canada.
After the constitution was patriated in 1982, however, there was no more need to use the Crown to push Canadian independence. Canada’s standing as a wholly sovereign state was provided by the Canada Act, 1982. That project was now complete and the Crown was no longer needed as a vanguard of Canadian sovereignty.
Instead, the Crown became something to be diluted or downplayed. The Constitution Act, 1982 included a Charter of Rights and Freedom and constitutional amending formula that threatened to make the Crown a source of misery for the federal government. Charter challenges involving the Queen were one headache (see the recent challenges to the citizenship oath), but the bigger problem has been that changes to the monarchy require the unanimous consent of the provinces. In the royal succession case, the Canadian government and federal Parliament decided that it was better to deny that Canada has any laws for determining its head of state rather than risk having to ask the provinces to approve change to that law. (For those who deny that Canada ever thought it had laws of royal succession, what law of succession was Bill C-60 of 1978 referring to when it said the Queen’s sovereignty would be passed down according to law?)
Simply put, the federal government will twist and contort the meaning of the Crown in whatever way necessary to avoid a conflict between monarchy and the Charter, or the prospect of having to engage in constitutional negotiations with the provinces.
The courts have gone along with this strategy since 1982 and I don’t expect them to stop anytime soon. Judges aren’t politicians, but they’re politically aware. I doubt any of them will force Canada into a unanimous constitutional amendment over something as inconsequential as ending male primogeniture in the laws of royal succession.
Still, as Yakabuski notes, there’s something pathetic about our inability to confront our constitution. If we can’t even debate who should be our national figurehead, how are we going to handle larger constitutional problems down the road?