Charles and the Canadian Constitutional Straitjacket

If discussion over reforming or replacing the monarchy continues to advance in Canada, Canada will have yet another reason to regret the way it cut corners to get patriation done in 1982.

Oct 04, 2022

Canada’s constitution, originally called the British North America Act of 1867, took 115 years to be “patriated,” or controlled by Canadian institutions instead of being an act of the United Kingdom parliament. Many Canadians were so relieved that it finally happened that they failed to realize why it took so long. The constitutional debates of the 1970s and 1980s focused so much on addressing Quebec and the question of Canadian duality, but Quebec was not what delayed patriation. It was the question of an amending formula. Before 1982, the constitution did not have one. Instead, Westminster made amendments at Canada’s request, and it remained vague what represented “Canada’s request.”

Formally, the House of Commons in Ottawa voted to petition for changes, but only with some level of provincial consent. There was no formal requirement for unanimity among all provinces, but it was sometimes the only way to guarantee that provincial consent existed. The most blatant example of this was federal-provincial agreements of 1940 that supported an amendment to the British North America Act to give the federal government the jurisdiction to establish unemployment insurance. The expectation that amendments required unanimity guided Quebec’s objection to patriation and the 1982 Constitution Act, enacted over the opposition of the Government of Quebec. In the Patriation Reference of 1981, the Supreme Court of Canada ruled that while constitutional amendment required some form of provincial acceptance, there had never been a requirement for unanimity. After patriation, Quebec continued to insist that patriation remained illegitimate because it had happened without its consent, either because unanimity was inherently necessary, or perhaps because as the political expression of half of the Canadian duality, it had a veto over constitutional change.

Even without Quebec’s participation, the 1982 Constitution Act accepted the principle of amendment by unanimity, at least in places. Many amendments would only require the agreement of seven provinces representing fifty percent of the Canadian population, but other matters, per Section 41, the legislatures of all ten provinces must give consent for amendments. Section 41(a) states that “the office of the Queen” (it ought to have stated “the monarch,” “the Crown,” ot the “head of state”) is one such area.

With the death of Elizabeth II and the ascension of Charles III to the throne, the republican debate in certain members of the Commonwealth of Nations has been revived. The high personal regard in which so many held Elizabeth was enough to keep the issue of switching to a republic off the table, and the succession has been enough to reopen public discussion. Australia and New Zealand have their own issues to overcome, with Australia conceivably closer to taking the step, but the process of ending the monarchy will be the most arduous in Canada, given the state of Canadian domestic politics and the unanimity requirement. Quebec, pointing to the unresolved 1982 issues and still-raw feelings about the failure of the Meech Lake Accord in 1990, is unlikely to agree to any amendment regardless of the content, and constitutional amendment is readily linked to other federal-provincial disputes like gun control or the funding of the single-payer health system. In addition, the First Nations have a treaty relationship with the Crown that a shift to a republic would disrupt. In addition, once a consensus emerged among the provinces in favor of a republic, the particulars of replacement institutions to succeed The Crown would need to be worked out.

Many Canadians were happy to see patriation take place, and the codification of an amending formula with a high bar seemed to be a small price to pay to get the deed done. Meech Lake was only the first hint that the unanimity requirement for changes to core parts of the constitution could amount to a constitutional straitjacket when the time came for an amendment that enjoyed substantial support. If discussion over reforming or replacing the monarchy continues to advance in Canada, Canada will have yet another reason to regret the way it cut corners to get patriation done in 1982.

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https://www.abc.net.au/news/2022-09-16/australia-may-achieve-republic-after-queen-death/101445270

https://academic.oup.com/book/4668/chapter-abstract/146850560?redirectedFrom=fulltext

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https://www.1news.co.nz/2022/09/21/queen-elizabeth-iis-death-sparks-nz-republic-debate/