PROPOSAL FOR THE PATRIATION OF HEAD OF STATE

By Rod Germaine

There are two common responses to the suggestion that Canada should reconsider its relationship with the monarchy.

First, it is not a priority. Politicians are especially prone to this view, and it is entirely valid. There are many—too many— vitally important issues in these tumultuous times. The reality, however, is that the monarchy is unlikely to ever become a priority in that sense. There will always be serious fires to be extinguished urgently. Yet it is an issue that cannot be deferred forever. It has to be examined some time, and there are accumulating indications that now is the time. Recently, for example, in a piece entitled “King Charles’s Coronation: Should Canada Become a Republic?”, Philip Resnick, Professor Emeritus, University of British Columbia, asked, “Should we retain a British monarch as our official head of state?”1

Second, the required constitutional amendment process is a can of worms that is best left sealed. Professor Resnick called it a “long constitutional process”. As the process is presently structured, he is correct. It is not only long, but also problematical and potentially futile because it may well revive old constitutional grievances. But modification of the existing process could moderate the risk of a constitutional debacle.

The obstacles inherent in these responses can be overcome by means of a formula that does not require an abrupt break with the monarchy and instead involves an evolutionary shift in the sensible style of a good Canadian compromise.

A Canadian Solution

This, then, is a proposal to repatriate the office of head of state of Canada by a process which:

• recognizes the historical significance of the monarchy;

• preserves the office of Governor General; and

• maintains the country’s form of constitutional parliamentary democracy.

How? By ending the representational capacity of the Office of Governor General. It is that simple.

In reality, it is not so simple because a constitutional amendment is required and the unanimity formula applies. But the point is that if the Governor General does not represent the Crown, the Governor General is the head of state. The effect in practice would be minimal.

Nor is it necessary for the amendment process to be long and painful. The proposal is a purpose-designed process that would seek to elicit the required unanimity before submitting the question to the majority will of Canadians. A federal statute defining the amendment could defer the referendum until after the amendment has been accepted and adopted by every province, subject to the referendum. Tabulating the referendum results nationally rather than by jurisdiction would enhance the integrity of the process.

The substantive effect would be relatively minor, precisely the least required to accomplish the change. The Governor General would continue to perform the same role, but as head of state. And, as a process designed for this single purpose, it would be less likely to provoke demands for unrelated amendments.

The Form of Amendment

The amendment would:

• terminate the representational role of the Office of Governor General, provide the Governor General with the authority to exercise all former royal prerogatives and endow the Governor General with all of the former royal powers and responsibilities in relation to Canada and its Indigenous peoples;

• provide that the role and authority of the Office of Governor General is otherwise unchanged and expressly confirm that the Governor General is thus the head of state of Canada;

• adopt a long title for the Office of the Governor General that includes words such as “historically the representative in Canada of the Monarch of the United Kingdom”;

• define the process for the appointment and term of office of the Governor General in terms such as the following:

• before appointing a Governor General, the prime minister shall consult with a Head of State Appointments Committee comprising of not more than five eminent Canadians whose membership on the committee has been approved by an allparty joint committee of Parliament; and

• the term of office of the Governor General shall be six years, which may be extended for up to six years in accordance with the procedure set out above;

• if necessary, amend the Office of Lieutenant Governor in order to ensure consistency with the patriation of the head of state; and

• include transitional and interpretive provisions to ensure that all references to the King or the Crown, or any variation thereof, and any related provision, whether in the constitution or other laws, shall be construed to reflect the Governor General as head of state.

The Process

The federal government would enact legislation—the Patriation of the Head of State Act, perhaps—adapting the scheme of the Referendum Act to define the unique process governing this amendment question. The Act would:

• settle the text of the question for the referendum in terms consistent with the constitutional amendment proposed above, and in the manner provided under s. 4 of the Referendum Act;

• provide for a pause in the referendum procedure upon the final settlement of the text of the question in the manner provided under s. 5 of the Referendum Act;

• provide that the pause remains in effect until the Senate, the House of Commons and the legislative assembly of every province has made a commitment to accept and be guided by the result of a national referendum;

• provide that, upon the commitment of every jurisdiction, the Writs of Referendum shall be issued in the manner provided under s. 6 of the Referendum Act; and

• modify the Canada Elections Act to require that the results of the referendum shall be tabulated nationally rather than by jurisdiction and only the consolidated results from all electoral districts shall be published.

This proposal, then, is for an incremental approach to the ultimate maturation of Canada as an independent nation. It preserves the legacy of the monarchy while elevating the Office of Governor General to head of state. It embraces the unanimity formula but engages a unique process in which waiting for unanimity to materialize would precede the referendum rather than follow it. It turns on the will of the people of Canada as a whole by tabulating the referendum results nationally rather than by jurisdiction. The process would have the added advantage of avoiding the disruption and expense of a referendum if unanimity is not attainable.

Why?

This proposal attempts to persuade by advancing a careful and measured formula for achieving the result. It avoids the question of whether Canada should dispose of the monarchy.

If, however, the question must be confronted, then why would Canada wish to make the change? Canada’s link to the monarchy is historically important. It has widespread support among Canadians. There is no loud clamour for its termination. Canadians value the continuity. And for 70 years the monarchy has provided Canada with a head of state who performed the role impeccably.

That said, there are reasons for reviewing the status of the monarch as Canada’s head of state. Consider this comparison of the proposed system with the current system.

By elevating the Office of Governor General to head of state, the country’s head of state would be selected in Canada by the prime minister after consultation with eminent Canadians.

This is a fundamental change. Since Canada’s foundation, its head of state has been an office that is inherited. The first born of the reigning monarch inherits the monarchy and becomes head of state for the U.K., Canada and other Commonwealth nations. Thus, Queen Elizabeth II inherited the office of Canada’s head of state when her father, King George VI, died. This means the rules of succession for a family that is among the most privileged and entitled in the world determine who is head of state for Canada. These rules, incidentally, are not fixed, and Canada’s role in any revision is limited and formally non-existent.

History dictates that there is no guarantee the dignified and unimpeachable performance of Queen Elizabeth II will be repeated by her successors. It is beyond argument that King Charles III will not emulate his mother. He is too old to ever celebrate a golden jubilee on the throne. More to the point, it is uncontroversial that, given his personal history, he is precluded from achieving his mother’s gloriously unblemished stature. As well, the current conflicts within the royal family do not augur terribly well. And if the past is a reliable guide to the future, the reigns of Charles I and Charles II are sufficient to illustrate the risks of selecting our head of state in this manner.

The proposal contemplates regular renewal of the incumbent head of state. The term of office of the Governor General is six years. The possibility of an extension addresses the risk of emergency circumstances and is unlikely to be invoked very often. The office would therefore be in- fused at regular intervals with fresh and contemporary Canadian talent and perspectives.

Under the prevailing system, the only assurance that the incumbent will change is that the monarch cannot live forever. The extent to which the monarch reflects Canadian interests and values is necessarily diffused by the number of countries for which the monarch is head of state, not to mention the reality that the U.K. demands priority. It is also dependent on the inclinations of the monarch, although Canada has no complaint about this aspect of the system in recent decades.

For these reasons, it is respectfully submitted that a domestic head of state as proposed would serve the country more effectively. It is time for Canada to consider patriation of its head of state.

Questions

Several questions can be anticipated on the basis of comments received in response to drafts of this proposal.

Won’t any proposal for repatriation of the head of state be controversial and become a surrogate for other conflicts leading to intractable divisions that are likely to defeat the objective? Is it realistic to think that either Quebec or Alberta would agree to end the role of the monarchy without dealing with other constitutional grievances and conflicts?

These questions are aimed at the same issue and, given Canada’s experience with constitutional amendments, they are also entirely valid. And there is no bullet-proof answer. The proposal seeks to minimize the incentive for other constitutional grievances to interfere by adopting an incremental approach and limiting the scope of the required amendment. The unique legislative foundation should also reduce this potential problem. But only by implementing the plan will it be possible to ascertain its success in this respect.

Why would Canada’s Indigenous peoples agree to the patriation of the head of state if they don’t have any role in the decision-making process? Why would Indigenous peoples agree to the Governor General title for head of state given the historic record of the federal government with respect to Indigenous peoples?

How would this process work in the context of reconciliation? How would the process for achieving consensus take into account the reconciliation process? Would the legislation and the repatriation process be legitimate if Indigenous peoples are not actively involved in some way?

All of these questions address an issue of utmost importance. Canada’s Indigenous peoples must be involved. But there is no attempt to exclude Indigenous peoples from the proposed process. For example, subsection

3(5) of the Referendum Act, which would be emulated in the proposed legislation, provides that the referendum question shall be available “in such aboriginal languages” after consultation with Indigenous peoples’ representatives. The input of Indigenous peoples is invited and, inevitably, it will bear on both the process and the substance of the amendment.

If the federal government enacts the proposed Patriation of the Head of State Act unilaterally, wouldn’t there be push back from segments of civil society as well as other governments and Indigenous peoples? How would the process attain buy-in from other levels of government and Indigenous peoples?

Only one element of these questions has not been answered above: the unilateral character of the proposed federal legislation. In this respect, the proposed Patriation of the Head of State Act would be no different than the Referendum Act, which is the existing federal legislation respecting constitutional amendments.

Does the monarchy have a role in the process?

Yes, but it is a formality. As matters now stand, the reigning monarch appoints the Governor General on the advice of the prime minister. The reason this is a formality is that, by convention, there is no option for the monarch to refuse the advice. Under the proposed amendment, this role of the monarchy would disappear. The prime minister, after consulting the Head of State Appointments Committee, would simply appoint the Governor General as head of state.

Why keep the Governor General office and/or title? Why not adopt “President of Canada” or other title that clearly communicates the break from colonial tradition? If the change is merely symbolic, shouldn’t the symbol be more clearly indicated?

Again, the philosophy of the plan is to keep it as simple as possible in order to avoid the complexities as well as the emotional provocation of a full-tilt republican proposal. It assumes that bringing home the office of head of state will be less controversial if titles and offices are not radically altered.

The proposal contemplates the appointment of the head of state by the prime minister, a highly undemocratic process that centralizes the power in the hands of one politician. Why go through the trouble of a constitutional amendment in order to perpetuate such an elitist process?

To repeat, the proposed question and process are based on the notion that Canada is likely to prefer an evolutionary shift away from the monarchy rather than a blunt and brutal transformation. As far as the elitism of the process is concerned, the introduction of a Head of State Appointments Committee and the requirement that the prime minister consult with the committee before making an appointment are substantive improvements. The prime minister currently is not bound to consult beyond the Cabinet before the Governor General is appointed.

If the proposal for a minimalist process is intended to avoid backlash, is it worth the trouble in order to achieve so little?

Some backlash is probably inevitable. Only adoption and implementation of the plan will reveal its extent. For the reasons given above, the proposal is designed to reduce the backlash to a minimum. To address the descriptor “little”, it is not accurate to dismiss the patriation of Canada’s head of state as only a little achievement. One must not mistake the significance of the proposed change. Canada would have its own head of state. This is not a matter of little consequence.

Is it conceivable that the Senate, the House of Commons and all the provinces would bind themselves to abide by the outcome of the referendum? Governments may lose elections between making the commitment and the referendum. What form of commitment would suffice? How would the referendum campaign be organized? Who could campaign? How would the campaigns be financed? What happens if the results of the referendum are very close?

Many details of the proposed process will demand greater consideration and, perhaps, refinement, possibly even further legislative attention. It is not possible to anticipate every potential contingency. But initiating the process would ensure issues are addressed and resolved.

Why would ordinary citizens find the proposal compelling or exciting?

Precisely because it heralds the full maturity of the country as an independent nation with its own head of state.

Endnote

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