Prime Minister Stephen Harper rebuked Governor General Michaëlle today after the Governor General referred to herself as Canada’s head of state at an executive meeting of UNESCO in France. He is correct: Canada’s head of state is Elizabeth II, Queen of Canada. That Canada shares a monarch with the United Kingdom is a vestige of our colonial heritage. As Canada approaches her 150th birthday, perhaps it’s time to seriously consider reforming the Canadian monarchy to bring it in line with modern realities of Canadian society. To wit, I believe the time has come to sever the unity of the Crown and adopt new rules governing succession in Canada.

Although embodied in the same person, the Queen of Canada and the Queen of the United Kingdom have distinct legal personality. This curious relationship is the result of the Statute of Westminster 1931 (U.K.) 22 Geo. V, c. 4, which forms a part of the constitution of Canada in virtue of the Schedule to the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. This statute generally establishes Canada’s sovereignty from the United Kingdom. Part of the preamble to the Statute of Westminster reads as follows:

[…] inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom […]

This was interpreted as a sort of treaty between the Commonwealth countries in O’Donohue v. Canada [2003] 109 C.R.R. (2d) 1, [2003] CanLII 41404 (Ont. S.C.), aff’d [2005] CanLII 6369 (Ont. C.A.). That case involved a constitutional challenge to the Act of Settlement 1701, which governs succession to the Throne, insofar as it precludes Roman Catholics from holding the office of monarch. In his reasons for decision, Rouleau J. stated at para. 33:

As a result of the Statute of Westminster it was recognized that any alterations in the rules of succession would no longer be imposed by Great Britain and, if symmetry among commonwealth countries were to be maintained, any changes to the rules of succession would have to be agreed to by all members of the Commonwealth. This arrangement can be compared to a treaty among the Commonwealth countries to share the monarchy under the existing rules and not to change the rules without the agreement of all signatories. While Canada as a sovereign nation is free to withdraw from the arrangement and no longer be united through common allegiance to the Crown, it cannot unilaterally change the rules of succession for all Commonwealth countries. Unilateral changes by Canada to the rules of succession, whether imposed by the court or otherwise, would be contrary to the commitment given in the Statute of Westminster, would break symmetry and breach the principle of union under the British Crown set out in the preamble to the Constitution Act, 1867. Such changes would, for all intents and purposes, bring about a fundamental change in the office of the Queen without securing the authorizations required pursuant to s. 41 of the Constitution Act, 1982.

In other words, the Parliament of Canada could, by a constitutional amendment, change the rules of succession to the Crown. In order to do so, Parliament would have to invoke the Constitution Act, 1982 s. 41(a), which requires the unanimous consent of the provinces (note that the general amendment procedure in s. 38, which requires just two-thirds of the provinces representing half the population of Canada, would not apply in this situation).

What would a reformed Canadian monarchy look like? I think that a moderate proposal would be to simply treat the Governor General as Queen of Canada. In other words, the Governor General would exercise the same powers she does today, but would do so as Queen. In order to safeguard our democratic institutions against unwarranted interference by the Queen, we could re-write the rules of succession. Rather than being hereditary, we could appoint our Queen through a transparent and non-partisan process. My recommendation would be for the House of Commons to appoint the Queen of Canada to a fixed, non-renewable 7-year term, on recommendation from a three-person committee consisting of the Prime Minister, the Leader of the Opposition, and the Chief Justice of Canada.

Since we are tinkering with the fundamental underpinnings of the Canadian monarchy anyway, we might as well also implement my recommendation to delegate some power from the Governor General to the Chief Justice whenever the former is called upon to render decisions of constitutional importance. For example, when a government loses the confidence of the House of Commons, the Chief Justice could give constitutional advice to the Governor General regarding whether Parliament should be dissolved or whether a coalition of opposition parties should be given the opportunity to form a government.

Are these changes to Canada’s constitution realistically possible? All we need is the unanimous consent of Parliament and the provincial legislatures. Who’s with me?