The Decibel - Why Charles III won’t be the last King of Canada

Episode Date: May 5, 2023

On Saturday, King Charles III will be crowned in a ceremony at Buckingham Palace in London. This is the first coronation of a British monarch in 70 years and it’s brought up questions from Canadians about why a democratic country like Canada still maintains ties with the monarchy. A recent Angus Reid Poll found that 52 per cent of respondents do not want to continue as a constitutional monarchy. But leaving isn’t that easy.Errol Mendes is a lawyer, author and constitutional and international law professor at the University of Ottawa. He’s on the show to explain how Canada’s constitution makes leaving the monarchy almost impossible.Questions? Comments? Ideas? E-mail us at [e-mail]

And so you will not be watching the coronation on Saturday? Oh, I will. I think it's historically significant. And I'm very excited to watch it just because I think it's an important moment in history where we can watch the continuation of the despots as they flutter themselves about for the entire world to ogle at. So no, I'm pretty excited. This Saturday is the coronation of King Charles. There will be pomp and circumstance through the streets of London. People will lunch on coronation quiche and Canada's new head of state will officially be crowned. But what do Canadians

think about all this? We sent our Decibel interns to find out. They spoke to people in Toronto, Calgary, and Vancouver. I think Canada has long established itself as its own independent country, and I don't see what being a part of the UK is, how is that affecting my life or the life of everyday Canadians? I don't see that it makes really much of a difference. I think we'd be stronger just forging ahead just independently. There's a part of history which comes with the monarchy. It's a part of Canadian culture. It's almost like trying to abolish old Canada, I think. I believe monarchy is sort of a central power

that is centralized in the hands of one person and is not really spread to the people. So democracy goes very much against the monarchy. No, I'm not excited for the coronation. I feel more sad the closer it comes because I feel like the death of the queen and the potential of a new coronation was a great opportunity to have a conversation about whether we should have a monarchy at all and as the coronation draws closer i feel like

we are missing that opportunity more than half of canadians don don't want Canada to continue as a constitutional monarchy for generations to come, according to an Angus Reid poll from last month. But the thing is, no matter what we think of the British monarchy, the act of leaving might be, well, nearly impossible. Errol Mendez is a lawyer, author, and a professor of constitutional and international law at the University of Ottawa. He'll help us understand what Canada would need to do to leave the monarchy and why it's so difficult. I'm Maina Karaman-Wilms and this is The Decibel from The Globe and Mail. Errol, thank you so much for speaking with me today.

You're very welcome. So, of course, King Charles is being crowned on Saturday. I'm just curious, are you going to be watching the coronation? Yes, if I wake up in time. It's early. If I wake up in time, but I'll try to see at least the most major parts of it, which is obviously the coronation itself. OK, so let's get into this question of the monarchy's role in Canada. We have the governor general at the federal level and lieutenant governors at the provincial level. And those are stand-ins for the crown in Canada.

But they're mostly symbolic roles. And, you know, combine that with the growing apathy for the crown, it does seem like a fair question to consider Canada potentially leaving. So, Errol, you're a constitutional expert. And I know that you've argued that leaving the monarchy is actually a lot harder than it might seem, though, because of our constitution. So what are the specific constitutional hurdles in Canada? Well, this goes back to how we actually repatriated our constitution from the UK. So when the former Prime Minister Pierre Elliott Trudeau decided that we should have our own constitution, not one which is based on a UK statute, the British North America Act of 1867. We went through this very long process.

It actually started in the 1960s, but through many, many negotiations, commissions, he managed to get the consent of all the provinces but Quebec, which included the Charter of Rights and Freedoms in 1982. But in addition, there was also a desire to have an amending formula so we don't have to go back to the UK to get our constitution amended. So... Sorry, this is the idea kind of bringing the constitution home, right? To give Canada control of those changes. That's right. So we had amending formulas in the Constitution of 1982.

However, there were various levels of the requirements to amend certain parts of the Constitution which required a lesser amount of provinces agreeing to it, but some which would require unanimity of all 10 provinces. Well, you can guess which one would require the majority, all the provinces to consent before it could happen. And one of them was the crown. Okay, so any change to the crown, the role of the king or the queen, it basically requires all 10 provinces, the House of Commons, the Senate of Canada. Can you give me an idea, Errol? Is that a high bar? How difficult would that be to get? Well, one reason why I'm on record on saying, let's basically be realistic. The chances of us getting all 10 provinces to agree to a change in the role of the monarch based on what we've experienced in the recent past with the Meech Lake Accord and the Charlottetown Accord, where we try to get unanimity. It failed. It failed at Meech Lake Accord was in 1990. It was essentially trying to get Quebec to endorse the Constitution. And then the Charlottetown Accord was two years later in 1992 when they tried again.

But that was rejected in a referendum. But help me understand this then, Earl. So the Meech Lake Accord, that attempt to open up the Constitution failed. Why does that have relevance to what we're talking about now with the monarchy? Well, it has relevance because there were parts of the Meech Lake Accord which did require unanimous consent. The majority of provinces agreed to the amendments, except for Manitoba and Newfoundland. In Manitoba, however, there was a disagreement, especially amongst the indigenous peoples,

that they weren't given enough recognition in the package. And Clyde Wells in Newfoundland, the premier at that time, had objections to the distinct society clause in the Mishlake Accord, which would give Quebec the status of a distinct society. And he felt that that would endanger the rights in the Charter of Rights and Freedoms. And he had an ally, which coincidentally was Pierre Elliott Trudeau. So with Meech Lake, was this one of these situations where we needed unanimous consent of all 10 provinces and the two houses in order to get something through? Yes, and we didn't get it. And in fact, there were still indications that even if

we just had kept the less rigorous amending formula, the seven provinces representing 50% of the population, even that could potentially have had been in trouble. So what we saw with the Meech Lake Accord then, like that really showed us that as a country, we had trouble getting that unanimous consent for something like when we tried to do this with the Meech Lake Accord. So I guess that would suggest that if we're trying to do it again with the monarchy, we might have trouble getting that consent even now. Yeah, given what happened at Meech Lake and Charlottetown, the probability of getting all 10 provinces, in my view, is

impossible, but for another reason, not just because it's about the monarchy. My prediction that what would happen is very similar to what happened with both Meech Lake and Charlottetown. The moment you have any form of amendment to the Constitution of Canada, you will have the provinces requiring other things to be added on. And we saw that not only in Beach Lake, but also in Charlottetown, where the provinces were kept on demanding more and more amendments to the constitution to give them more power, to take a lot of power away from the federal government. Can I just ask you, though, what about the idea of a referendum? Like, if there's a sense that Canadians are in favor of maybe leaving the monarchy, couldn't we just have a referendum, a countrywide vote on this?

Well, there was a referendum at Charlottetown where Prime Minister Mulroney did manage to get all 10 provinces to agree to the Charlottetown agreement. But in the referendum, which it was agreed upon that it could only go forward if there was an agreement by Canadians, it failed. And the reason why it failed, it goes back to what I was saying, that there was a feeling by Canadians that by the provinces demanding more and more from this one amendment, it would probably endanger the federal government itself. Well, I predict the same thing would happen again if you had a referendum on changing the monarchy. So that's my view, that based on recent history, the same thing would happen, and even if we had a referendum, it would definitely fail. We'll be back after this message. I think it's easier than perhaps the government is making it out to be or that people think it is. And I think there's just a lot of resistance from people who are used to the status quo.

But if you're asking about the monarchy in general, I'd say that my feelings towards it are the same as my feelings towards daylight savings time, and that I'd be happier without it, but it's such a hassle to get rid of it. Let's talk about this idea of opening up the Constitution. So in order to make this change with getting rid of the monarchy, we would need to open up our Constitution. And Errol, you were alluding to the fact there that if we did this, it might be kind of like opening up a can of worms. So what could be the drawbacks here? Well, as we saw with both Meech Lake and Charlottetown, it's a Pandora's box. You don't

know what is going to come out of it once you open up that box. And it is now clear, based on those past events, that yes, you would have that on one of the major parts of the amendment process, but no doubt there would be many others. And so therefore, you would enter into the same type of battle between the federal government and the provinces on not just the monarchy, but a whole bunch of other stuff. In addition, I'm not sure that most Canadians fully understand why we're actually doing this, because going back to your original questions about if the role of the monarch in Canada is purely ceremonial, why are we bothering to fix it? Because essentially, much of the powers of the limited, limited powers that the monarch has in Canada is basically

exercised by a Canadian called the Governor General of Canada. Okay. I just want to go back to the idea of opening up the Constitution. And you said, you know, different provinces might have different requests or things that they want to bring up do you do you have an example of i guess i don't know a concern or something that a province might bring to the table in this kind of situation well they'll probably resurrect the same type of demands that happened with both meech lake and charlottetown so the western provinces basically wanted to take back almost all the powers over mining, forestry, other forms of resources, etc., including, however, communications. of immigration and a whole bunch of restrictions on the federal government's ability to spend its revenues to assist in areas such as healthcare and others, etc. I can predict that if we ever were to have a negotiation or a referendum on the monarchy,

the first thing that many of the provinces would basically require is a curtailment of the spending power of the federal government so that they would require the federal government to give them all the money that it possibly has, but they would have complete jurisdiction to do whatever they want in health care, in a whole bunch of other areas which Canadians care deeply about. Essentially, the concern would be that provinces would demand more power, essentially, to do with what they would want in their own province and not be directed so much by the federal government. Exactly. Now, keep in mind, too, that the unfulfilled requirements of the indigenous peoples, which were sought after both at Michelek and Charlottetown,

would also be there, too. So you would also have, rightly so, our First Nations also demanding much more say in the way in which government in Canada is basically carried out. Well, let's talk then about the relationship between the Crown and Indigenous people because there are 70 historic treaties, and those treaties are specifically between Indigenous people and the Crown, so the monarchy, the king now. If Canada were to leave the monarchy, what would happen to those treaties? Well, because they are regarded as essentially agreements between the First Nations who signed those treaties and the crown, they actually attach a lot of significance to that,

which actually requires government to go as even beyond the wording of those treaties, to act not just with the letter of those treaties, but the spirit of those treaties. And they keep on using this phrase all the time, and it's now in our legal language. These treaties have to be observed to have the honor of the crown fully fulfilled. And that notion of the honor of the crown is so important to the First Nations that to have taking away the crown as being the other major party to those treaties would be of immense concern. But, I mean, are these treaties being upheld in that way now, though? Like, maybe could there possibly be a benefit to opening them up and revisiting them?

Well, I think many First Nations would say they're not being fully implemented even now. Let's think about, God forbid, what could replace the crown, because that would be part of the almost endless negotiations that would take place. What do we replace the crown with? Do we replace the crown with a president?

How is the president going to be elected? I can predict that that could go on not just for months, probably years and probably decades. Errol, we've heard about other Commonwealth countries that have either left the monarchy, like Barbados did in 2021, or had a national conversation like Australia did. They had a referendum on the issue in 1999. I guess the question is, like, why are these countries able to do that? And we in Canada, we're not.

Well, it all goes back to how these different countries negotiated their independence. So with Barbados, which just recently became an independent republic, unlike us with our complex amending formula, which we brought back in 1982, Barbados managed to simply get the UK to agree that an auditing council would be allowed to pass a statute giving Barbados independence. And so therefore, any changes to that could basically take the place of an amendment to that statute. So it was very simple. And so it wasn't just happened recently. After decades of discussion and a commission in Barbados, they decided, look, it's time for us to just change that statute

so that we can give ourselves a true Republican framework. What about Australia, though? Well, Australia, as you know, in 1999, they did have a referendum, which failed. Under Australian constitutional law, they have to have a referendum, a majority of Australians plus a majority of the states. So that again, could possibly create problems there too. Even if it is only a ceremonial role in Australia and in Canada for the monarchy, I mean, isn't there still an argument of progress to abolish it that like, you know, this is it's kind of an antiquated thing at this point in time? Well, I do share some of the concerns about having a foreign monarch as our head of

state. But what I would prefer that we have in Canada is a discussion of how can we improve our union, because we are still a collection of provinces which agreed to come together. And in Charlottetown, we decided to create a confederation, which would try and get the strengths of all parts of Canada to be a united, independent country. It's time we had a more general discussion on is do we need to update our constitution? We need reforms, for example, in our electoral system, maybe moving away from first-past-the-post to having proportional representation. Do we need to have more say, for example, on whether or not our charter on rights is in danger because of the use of the override clause?

We've seen it in Ontario, where the use of the notwithstanding clause is now being used more frequently. It has been used in the West. So there's a bunch of stuff that needs to be asked, but not focus only on the monarchy. Because I think if we focus on that, my God, Pandora's box would throw up a whole bunch of other issues, which would actually strangle us for the next, I would say, not just months, probably years. Errol, thank you so much for joining me today. You're very welcome. That's it for today. I'm Mainika Raman-Wilms. Our interns are Wafa El-Rayis, Andrew Hines,

and Tracy Thomas. Our producers are Madeline White, Cheryl Sutherland, and Rachel Levy-McLaughlin. David Crosby edits the show. Adrian Chung is our senior producer, and Angela Pachenza is our executive editor. Thanks so much for listening, and I'll talk to you next week.