The Ad Hoc East Toronto Republican Constitution Committee has prepared some preliminary working notes on a draft strategy for shorter-term republican political reform and longer-term constitutional reform in Canada. If you would like to comment or raise queries use the form at the end of the text below.

The notes focus on retiring the current elusive “constitutional monarchy” with dignity and dispatch. The process proposed may seem all too complicated. The main problem is not that abolishing the monarchy is complicated, but that Canada itself is a complicated place, as a result of a haphazard political and constitutional history that is now almost 140 years old.

Constitutionally, Canada today is both a still quite new and a rather old place at the same time. It started with what is now called the Constitution Act 1867, which was then added to and renewed by the Constitution Act 1982, some 115 years later. Canada today is also probably still a bit too complicated a place for its real circumstances in the world. And one purpose of political and constitutional reform in the early 21st century is to make the “free and democratic society”prescribed in the Constitution Act 1982 easier for all Canadians (and anyone else who might be interested) to understand.

1. IMMEDIATE SHORT-TERM OBJECTIVE: Democratic Reform of the Office of Governor General of Canada, within the current five-year term of the excellent Mme Michaelle Jean. Deadline: September 2010.

1.1. It is not just the 1788 Constitution of the United States of America that begins with “We the People of the United States.” The 1950 Constitution of the modern independent Republic of India also begins with “We the People of India.” As in the case of India, giving we the Canadian people of today our own independent Canadian head of state does not involve any change in the British-modeled or “Westminster-style” parliamentary government that Canada inherited some 140 years ago, in what is now called the Constitution Act 1867.

1.2. Such early 21st century parliamentary democracies as India and Ireland have already shown how former British colonial governor generals can be converted into independent republican heads of state, while retaining all the essential virtues of Westminster parliamentary government. These virtues continue to include, e.g., the ability to quickly change heads of government who have lost the support of the peoples’ elected representatives.

1.3. The office of governor general of Canada as currently constituted cannot serve as a new independent Canadian head of state, because the current method of having the prime minister of Canada alone appoint the governor general lacks fundamental democratic credibility.

1.4. There are various conceivable approaches to reforming the selection method for the office. As proposed here, by way of example, the practical mechanics of turning the present office of governor general into a suitable prototype for a new Canadian republican head of state – exploring options and precedents already set by other parliamentary democratic republics – will be studied by a cross-Canada Citizens Assembly, established by the Canadian House of Commons.

1.5. This federal Citizens Assembly will be modeled on the recent British Columbia Citizens Assembly on provincial electoral reform (another version of which will also be looking into provincial electoral reform in Ontario this year). It will conclude its work by recommending several options for selecting all subsequent holders of the democratically reformed office of the governor general of Canada.

1.6. A committee of members of Canada’s federal and provincial parliaments, appointed by the prime minister and the provincial premiers, will then choose two options for democratic reform from the larger number recommended by the Citizens Assembly. These two options will be submitted to the Canadian people in a cross-country referendum. The governor general who follows the excellent Mme Jean, and all subsequent governors general, will be selected according to the winning option in this referendum.

1.7. Legally and constitutionally, the new selection method will draw on the prime minister’s current appointment power. Future prime ministers will be enjoined to follow the new selection method for future appointments in ordinary federal legislation, but no formal constitutional amendments will be required to implement this initial stage of democratic reform.

1.8. The Citizens Assembly will also discuss and report to the Canadian House of Commons on the advisability of writing down some account of the current role and responsibilities of the governor general of Canada, in legislation or otherwise, and on the future of the 21st century Canadian governor general’s last remaining ties to the monarchy in the United Kingdom.

COMMENT: Is all this possible by September 2010? Any serious jaded observer of Canadian politics has to say probably not. But the federal elections of 2004 and 2006 have brought fresh reforming energy to the current scene, as well as two successive minority governments. And Canada in the early 21st century just may be ready for change.

2. THE NEXT STEP – LONG-TERM OBJECTIVE, INTERIM ALTERNATIVE: Turning the democratically reformed office of the governor general into a new Canadian republican head of state, one way or another. Deadline: 150th Birthday of Canadian Confederation in 2017.

2.1. Constitutional Amendment

Removing the modern Canadian democracy’s very last and now extremely vague colonial ties to the United Kingdom – by ending all remaining legal and constitutional relationships between the democratically reformed office of governor general of Canada and the monarch in the United Kingdom – will finally require a formal amendment to the Constitution of Canada. Under section 41 of the Constitution Act 1982 this amendment must be “authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province.”

2.2. Charlottetown Accord 1992

It is sometimes said that the federal and all 10 provincial legislatures will never agree on anything. And thus abolishing the constitutional monarchy in Canada today is close to a practical political impossibility.

Contemporary Canadian history shows that this is not exactly true. The federal and all 10 provincial legislatures agreed on an extensive series of amendments to the Constitution of Canada in the 1992 Charlottetown Accord. The Accord was then defeated in a cross-Canada popular referendum. But it was the Canadian people, and not any failure to agree among federal and provincial governments, that finally said no to the proposed constitutional amendments.

2.3. Continuing Difficulties

The requirement for unanimous agreement of the federal and all 10 provincial legislatures still makes a constitutional amendment abolishing the monarchy – and converting the democratically reformed office of governor general into the office of president of the new Canadian parliamentary republic – a big enough practical political challenge.

Canada could not fully amend its constitution by itself until the Constitution Act 1982, in the wake of the first Quebec sovereignty referendum in 1980. Prior to 1982 certain aspects of the Constitution of Canada could still only be amended by an act of the Parliament of the United Kingdom. There have not as yet been many (or any major) subsequent Canadian constitutional amendments. (CLICK HERE for a list of minor amendments.) The failure of the last attempt to modernize and reform Canadian political institutions in the Charlottetown Accord, continues to breed doubts about the wisdom of repeating this kind of adventure any time too soon.

2.4. An Interim Alternative?

There may be a way of effectively abolishing the current relationship between the democratically reformed office of the governor general of Canada and the monarch in the United Kingdom, that stops short of a formal constitutional amendment.

This leans on the traditional “unwritten” and conventional side of Canada’s now almost 140-year-old version of what the Constitution Act 1867 calls “a Constitution similar in Principle to that of the United Kingdom.” Barbara Yaffe of the Vancouver Sun has reported that, according to the Canadian constitutional scholar Edward McWhinney, the federal government in Ottawa might end the governor general’s ultimate legal status as the monarch’s local representative by simply failing to declare Queen Elizabeth II’s successor as the monarch in Canada.

In at least the unwritten law of Canadian constitutional development, this would also effectively abolish the monarchy and turn the democratically reformed office of governor general into the sole official Canadian head of state.

Another Canadian constitutional scholar, Peter Hogg, has apparently indicated that this is not an entirely unreasonable proposal. It could prove the best that can be done by the 150th anniversary of the Canadian confederation in 2017.

3. LONG-TERM OBJECTIVE, ULTIMATE PERMANENT ACTION: Ending the monarchy as part of a new constitutional amendment package that would reconfigure the Charlottetown Accord to succeed at last. Deadline: Uncertain (but hopefully 2017).

3.1. Even if some use is finally made of an unwritten and conventional interim alternative for effectively abolishing the current relationship between the democratically reformed office of the governor general of Canada and the monarch in the United Kingdom, it will still ultimately take a formal constitutional amendment to complete the job in a permanent and enduring way.

3.2. Exactly when and how the practical political opportunity for making this constitutional amendment may arise remains unclear and uncertain. But it seems highly arguable that it is most likely to come in connection with other constitutional amendments, which relate to fresh assaults on the still unfinished work of the failed Charlottetown Accord of 1992.

3.3. Alone among all the provinces of Canada, e.g., Quebec has still not formally “signed” the Constitution Act 1982. Persuading the Government of Quebec to “sign the new constitution” was the original motivation behind the ultimately failed federal-provincial constitutional amendment agreement of the late 1980s known as the Meech Lake Accord. This did fail as a result of federal-provincial disagreement. And it was then broadened into the 1992 Charlottetown Accord, which finally was agreed to by the federal and all 10 provincial governments but then failed in a popular referendum.

3.4. However long it may take to revisit these premature major constitutional amendment adventures of the late 1980s and early 1990s, Canada cannot go on forever without its geographically largest and second most populous province formally agreeing to its present Constitution. The concept of further sovereignty referendums is still quite alive in Quebec. And the other two key constitutional issues taken up in the Charlottetown Accord – Senate reform and aboriginal rights – continue to dangle somewhat urgently in present-day Canadian public debate.

3.5. Though several provincial premiers remain sceptical, the new federal minority government elected on January 23, 2006 still seems resolved to take some first steps towards Senate reform that do not require constitutional amendments – in a way that parallels the initial democratic reform of the office of governor general, proposed in section 1 above. The Assembly of First Nations is now discussing “reforms such as an aboriginal auditor-general and a one-person-one-vote system for electing the national chief,” to strengthen its position in ongoing negotiations with the federal government on aboriginal policy reform. And the new prime minister of Canada has agreed that: “Ultimately, there will have to be constitutional changes, not just to accommodate Quebec but also to accommodate demands we have from the West and from other parts of the country – and from the population of Canada.”

3.6. All this suggests some longer-term future constitutional amendment package with four main ingredients:

(1) ABOLISH MONARCHY. End the constitutional relationship between the democratically reformed office of the governor general of Canada and the monarch who lives in the United Kingdom – and declare the reformed office of the governor general (probably renamed president of the Canadian republic, or some other such new term) as Canada’s only official head of state, ultimately accountable to the Canadian people, and no one else.

(2) RECOGNIZE QUEBEC. Constitutionally declare that the Canadian people who are the ultimate sovereign authority in the resulting new Canadian republic, in theory as well as practice, recognize that the predominantly French-speaking Canadian province of Quebec is not a province like the others. (There is already some precedent for this in the creation of the new territory of Nunavut in 1999.) The people of Quebec are equal to but different from the people of the other provinces, since as part of the country’s rich and diverse heritage they have chosen to preserve and protect a provincial society where the majority of the population customarily speaks the other official language of Canada. (And because alone among all the provinces Quebec follows the old Roman civil law rather than the old English common law.)

(3) REFORM SENATE. Create a fully reformed elected, effective, and regionally representative federal Senate of Canada, to supplement strict representation by population in the Canadian House of Commons with more adequate representation for all of the vast and sprawling geography of the geographically second-largest country in the world – and provide for the expression inside federal institutions of regional interests that can now only find expression through too much conflict between federal and provincial governments.

(4) CLARIFY ABORIGINAL RIGHTS. Clarify the more exact meaning of the declaration in section 35 of the Constitution Act 1982 that “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed” – and its implications for the ongoing government of Canada, including aboriginal land claims and the future of the present system of Indian reserves, which is still accountable to the department of the federal bureaucracy now known as Indian and Northern Affairs Canada, in Ottawa.

3.7. This example of a future constitutional amendment package that would start with the declaration of an independent Canadian head of state leans very heavily on the key issues dealt with in the 1992 Charlottetown Accord. It may be that continuing public debate and discussion will somewhat broaden or otherwise shift the ultimate scope of any such package that finally comes together in the real world of Canadian politics. (The broad array of democratic reform issues currently being discussed by the Fireweed Democracy Project may be one case in point?)

3.8. Following the precedent already established by the Charlottetown Accord, any future constitutional amendment package that would start with the declaration of an independent Canadian head of state will ultimately have to be ratified in a cross-country popular referendum. On this scenario, in the real world of Canadian practical politics the sovereign Canadian people will most likely finally vote on abolishing the constitutional monarchy at the same time that they vote on several other major constitutional issues of at least equal importance.

COMMENT: Wouldn’t it be simpler just to have a referendum on an amendment abolishing the monarchy and leave the other issues for another time? Yes of course, but … this is still the Canada that has had a haphazard history and remains a too complicated place. There have as yet been no successful major Canadian constitutional amendments under the new independent amending formula in the Constitution Act 1982. Former Supreme Court of Canada Justice John C. Major, who recently retired in his mid 70s, has said that he does not think there will be any such amendments in his lifetime, because the amending formula is so demanding.

Political circumstances can always change. But as matters stand it seems unlikely that a cross-country referendum would be held on just one major constitutional issue, when several other major issues are also still dangling so obviously in the breeze. How could you have a referendum on a major amendment just abolishing the monarchy when, e.g., the future of Quebec in the confederation remains unclear? Canada is a different kind of country than Australia, and the 1999 Australian single-issue republican referendum is not a helpful model for the Canadian case

4. VERY LAST STEPS (AND A FEW RELATED THINGS THAT COULD ALSO BE DONE MUCH SOONER). Deadline: Uncertain (but hopefully 2017 – and in some cases much sooner).

4.1 Democratizing the language of the Constitution Act 1867

The Constitution Act 1867 is written in a kind of secret code – in the anachronistic style of the later 19th century English Constitution on which it is based. In this code words seem almost deliberately designed not to mean what they first appear to mean. The important term “Governor General in Council,” e.g., practically means the federal cabinet, or even all too often nowadays the federal prime minister acting alone. But neither the cabinet nor the office of the prime minister is mentioned anywhere in the Constitution Act 1867.

When section 9 of the Constitution Act 1867 says that “The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen,” that does not mean that Queen Elizabeth II – to say nothing of Queen Victoria in 1867 – has any practical or any other role whatsoever in the executive government of Canada today. When the Queen last visited Canada, the governor general of the day, on sound advice, refused to let her even ceremonially sign an act of the Alberta provincial legislature into law.

Citizens of a properly constituted free and democratic society today ought to be able to understand their constitution without taking advanced courses in 19th century British politics. And the very last steps on the long journey to the Canadian parliamentary democratic republic almost certainly ought to include some significant revising of the Constitution Act 1867, to bring the theory of today’s independent Canadian democracy more into line with its actual practice.

Following the democratic republican style of the modern independent Republic of India, the Preamble to the revised Constitution Act 1867 could even begin with “We the People of Canada” – and still remain within the Westminster parliamentary democratic tradition, and what section 91 of the Constitution Act 1867 characterizes as modern Canada’s own tradition of “Peace, Order, and good Government.”

4.2. Reforming Oaths of Allegiance

Under section 128 of the Constitution Act 1867 in its present form all elected members of federal and provincial legislatures are required to swear oaths of allegiance to the monarch in the United Kingdom, rather than to Canada and the sovereign Canadian people who elected them.

Legally changing these oaths will require a constitutional amendment, as part, e.g., of the kind of ultimate amendment package sketched above. Until this becomes possible there seems no good reason why elected members of federal and provincial legislatures cannot also swear allegiance to Canada and the Canadian people, as recently proposed by members of the unreformed Senate of Canada.

Canadian official practice still requires the swearing of oaths of allegiance to the Queen in a dwindling number of other contexts, that do not appear to be necessary under even the present unamended Constitution. The almost certainly most egregious of these cases is the swearing of oaths by new citizens of Canada.

The grass-roots organization Citizens for a Canadian Republic has held annual Victoria Day Citizenship Oath Recantation events at Queen’s Park in Toronto since 2004. At these events naturalized Canadian citizens who have in the past sworn oaths of allegiance to the Queen at citizenship ceremonies formally recant that part of their oaths that relates to the Queen, while reaffirming that part of their oaths that relates to Canada alone.

Canadian federal government officials have informed such oath recanters that their actions do not compromise or otherwise affect their status as Canadian citizens. There appears to be no good reason why the Citizenship Act in Canada should not be changed to remove the current need for new citizens to swear oaths of allegiance to the Queen, as has already been done in Australia. This could also be done in the immediate short term, without raising any constitutional issues.

Public servants at all three levels of government in Canada have traditionally been required to swear oaths of allegiance to the British monarch of the day as well. As of December 2005 federal public servants are no longer required to swear such oaths. It seems likely that the practice will also be fading elsewhere over the next number of years.

4.3. Reforming Canadian Currency and Stamps

Modern Canadian decimal currency predates the 1867 confederation. It began under the old united Province of Canada (the southern parts of present-day Ontario and Quebec). According to the official Bank of Canada history, “Silver and bronze coins, denominated in cents and bearing the word Canada,'” were “issued for the first time in 1858. This marked the birth of a distinctive Canadian currency.” All these coins bore the image of Queen Victoria.

The first Province of Canada paper bank notes, however, were not issued until 1866. At least some of this currency did not bear images of the British monarch. Similarly: “Following Confederation in 1867, Parliament confirmed its control of currency with legislation and began to issue Dominion of Canada notes. Notes issued by both the government and the chartered banks were in common use for many years, until … the Bank of Canada was created in 1934 and given sole responsibility for issuing paper currency in Canada.” The first Dominion of Canada $1 bill issued in 1870 bore “a portrait of Jacques Cartier.”

Canadian coinage has continued to bear the image of the monarch of the day, down to the present. But the first paper bank notes issued by the Bank of Canada in 1935 “featured a portrait of a member of the royal family or of a former Canadian prime minister.” A new series of notes issued in 1937 “saw the portrait of King George VI replace those of other members of the royal family on all denominations except the $100 and $1,000 bank notes, which pictured former Canadian prime ministers” (Macdonald and Laurier respectively).

Intriguingly, a third series of Bank of Canada Notes introduced in 1954, after the 1952 coronation of Queen Elizabeth II in the United Kingdom, “is the only series on which the portrait of the Queen appears on all denominations.” In a fourth so-called 19691979 series: “Originally, the Queen’s portrait was to appear on all denominations. However, the Minister of Finance requested the inclusion of portraits of former Canadian prime ministers on the new bank notes to enhance national identity.” With the subsequent replacement of $1 and $2 bills by coins, this has led to the present situation where the Queen appears on only the $20 bill.

The modern history of Canadian stamps also begins in the united Province of Canada in the 1850s. What is apparently “the first Canadian stamp” of 1851 bears the image of a beaver. Many but by no means all subsequent Canadian stamps bore and have continued to bear images of the British monarch of the day. But probably the most common Canadian stamps in use today bear images of the independent Canadian maple leaf flag adopted in 1965.

There would seem to be no present constitutional reasons why images of the British monarch must appear on any Canadian currency or stamps. Section 91 of the Constitution Act 1867 puts the federal government in charge of both “Currency and Coinage” and “Postal Service,” but says nothing about the design of currency or stamps. There seems no good reason why Canadian politicians of the very near future should not emulate the late 1960s federal finance minister who “requested the inclusion of portraits of former Canadian prime ministers on the new bank notes to enhance national identity” – and remove all remaining images of the British monarch from all present-day Canadian currency and stamps.

4.4. The Concept of the Crown and the Office of Lieutenant Governor

There are at least two other aspects of movement towards an independent democratically reformed Canadian head of state by the 150th birthday of the present Canadian confederation in 2017 that require further public discussion and debate.

First, on some accounts of the current Canadian constitutional order, the concept of “the Crown” plays a key role in many different parts of Canadian federal and provincial government and in the wider Canadian legal system. It seems arguable that it might be convenient (and even economical) to retain this usage, even after the monarchy in Canada has been abolished by a formal constitutional amendment.

In this case the new Canadian republican “Crown” would be worn by the Canadian people – and serve as a short-form expression for the Canadian people as the ultimate source of sovereignty in the new republic. It might also serve as a reminder of Canada’s heritage of democratic political stability – somewhat parallel to the brief preamble to the Canadian Charter of Rights and Freedoms in the Constitution Act 1982 (“Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law”).

Some future strongly republican Canadians, on the other hand, may object to retaining the concept of the Crown in this way on very strict grounds of republican principle. And there are no doubt ways of getting around whatever key role the concept plays in the Canadian legal system. Another more philosophically appropriate term might be substituted for “the Crown” and so forth. The subject requires and deserves further public discussion and debate.

A second issue of this sort is the future of the provincial lieutenant governors. They play the same ceremonial and reserve constitutional role for the provincial governments that the governor general plays for the federal government. According to section 58 of the present Constitution Act 1867, the provincial lieutenant governors are “appointed by the Governor General in Council.” And in practice this has come to mean that they are appointed by the federal prime minister.

Once the office of the governor general of Canada has been democratically reformed as proposed in section 1 above, it may be more appropriate to transfer the power to appoint provincial lieutenant governors directly to the reformed office of the governor general. (And in the shorter term at least it would seem possible to do this without a constitutional amendment, on the same principles as those involved in reforming the office of governor general itself.)

On the other hand again, as an early 20th century account of the modern government of Ontario explained long ago : “Within the limitations prescribed by” what is now the Constitution Act 1867, each province of Canada “is a sovereign state.” Canadians who are especially concerned to protect and even enhance this general provincial sovereignty may prefer a selection method for lieutenant governors that parallels the selection method for the democratically reformed office of the governor general.

On this view, e.g., if the governor general is going to be directly elected by the people of Canada, then a lieutenant governor also ought to be elected by the people of the province in question. This would arguably imply a degree of provincial sovereignty in the Canadian confederation considerably greater than what is implied by the present Constitution Act 1867. In any case, again, the subject requires and deserves further public discussion and debate.

A POSTSCRIPT ON PERSONAL POINTS OF VIEW …

No one can of course reliably predict just how any kind of longer-term political future might unfold. The only purpose of the exercise here is to try to make the broadest shape of the journey that still lies ahead somewhat clearer.

The main practical point for the moment is just to get the ball rolling,  as outlined in section 1 above. Without opening up any immediate constitutional issues at all, Canadians can take a big first step in the right direction by democratically reforming the present office of the governor general of Canada – within the five-year term of the current excellent incumbent Mme Michaelle Jean (and in time for a dignified retirement of the British monarchy in Canada at the end of the reign of the good Queen Elizabeth II).

What the Ad Hoc East Toronto Republican Constitution Committee would most like to see itself is a cross-country referendum on a new selection method for the governor general/head of state of Canada no later than 2009 (and probably in conjunction with a federal general election, as an economy measure). In this referendum the Committee would also like to see the Canadian people asked to choose between two options:

OPTION A. REPUBLIC OF INDIA MODEL. The governor general/head of state will be chosen by a majority vote of the popularly elected members of the federal and provincial legislatures (or as matters stand, by the members of the Canadian House of Commons and the provincial legislatures, but not by the unelected members of the present unreformed Senate of Canada);

OPTION B. REPUBLIC OF IRELAND MODEL. The governor general/head of state will be directly elected by the people of Canada – in a way that adapts the Irish method of doing this so as to retain the essentially ceremonial and reserve constitutional role of the present governor general. (And that avoids, e.g., the kind of very politically powerful elected office of Chief of State in the present Fifth French Republic, which was “tailor made for General de Gaulle” some time ago, and may soon itself have to be reformed in some new Sixth French Republic).

Even in the shorter term what finally actually happens may of course prove to be quite different. The ultimately important point is just that something ought to happen on this issue – and increasingly sooner than later. As troubling news from around the world continues to show, online, on TV, and in print, the interesting new age of the global village is getting tougher every day. Canada and the Canadian people need to be better prepared for the challenges that lie ahead. In theory as well as in practice, taking our own future into our own hands at last will be a sign to ourselves and anyone else who may be inmterested that we are better prepared. The time to get started is now.

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For deeper background on the historical evolution of the de facto republican democracy Canada already has CLICK HERE.

The new prime minister has said it’s time for Canadians to start “writing, e-mailing, faxing and telephoning their MPs.” One excellent big question to ask is: do the current members of the Canadian House of Commons have the right stuff to put their shoulders to this wheel at last and really start standing up for the future of Canada? For a list of all the elected members of the current Parliament of Canada, complete with postal and email addresses and fax and telephone numbers, CLICK HERE.

To return to Democracy in Rideau Hall, CLICK HERE.