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Edward McWhinney
Sir:
My Guest Editorial on the future of the Crown in Canada (Autumn 2005) endeavoured
to clear away some unnecessary confusions and occasional emotion attending
consideration of reform and modernization of our constitutional institutions
and processes in their distinctively Canadian aspects today. It is surely
not creeping republicanism (“one step away from becoming a republic” as
Mr. Guthrie comments in his letter in the Winter issue), however, to suggest
now that it would be helpful to everyone – in Ottawa and also in London,
if the Canadian Prime Minister, who has effectively chosen our Governor
General for the last seventy years and has chosen only Canadian citizens
for that office for the last fifty-three years, should, from now on, accept
the full political responsibility for those choices, in the bureaucratic
formalities as well as in the fact.
The suggestion is not new. It came to notice in 1975 immediately after
the Whitlam-Kerr conflict of that year in Australia, when the politically
unseemly and embarrassing possibility always existed that the British Government
and the Queen might be called upon to intervene in a purely domestic Australian,
partisan political conflict and to dismiss a Governor General at the request
of a Prime Minister trying to forestall a preemptive political strike against
him by the same Governor General.
It was discussed with British officials in London at the time the Trudeau
constitutional “Patriation” package, which later became the Constitution
Act of 1982, was before the British Government and the British Parliament.
Everyone agreed there was an awkward gap in the constitutional system
which might lead to even more awkward inter-governmental confrontations
or exchanges at some future occasion. It might conceivably have arisen
in the Canadian minority government scenario of 2004-5, though the main
political players here at all times demonstrated enough common-sense and
civility and enough respect for the political and constitutional “rules
of the game” to ensure its remaining purely academic as an issue. A change
could be made, easily enough, by having the Canadian Prime Minister’s choice
of the Canadian Governor General promulgated by Order-in-Council in Canada.
One may confidently suggest that no one in Whitehall, and least of all
the Queen, would lose any sleep over it. (It has also been suggested that
it would be more in line with democratic constitutionalism to have the
Canadian Prime Minister’s choice of the Governor General submitted to ratification
vote of our House of Commons – perhaps for a two-thirds majority vote to
ensure an all-Party consensus).
An interesting recent case in Canada demonstrated, again, how much elemental
principles of comity and goodwill in our relations with Great Britain have
come to be accepted as necessary modernising forces, not merely at the
Cabinet level, but also by other coordinate institutions of government.
The case involved the ancient Act of Settlement enacted by the Parliament
at Westminster in 1701 as a British statute applying not merely to Great
Britain itself but equally to the British colonial territories overseas
(including present-day Canada). Is it, or should it be, Canadian law today?
Reflecting the extreme religious passions and intolerances of its age,
immediately after the “Glorious Revolution” of 1688, the Act of Settlement
anathematises the Roman Catholic church and religion in terms clearly in
conflict with the “equality” clauses of the Canadian Charter of Rights
of 1982. It specifically disqualifies from the succession to the British
throne any persons who “shall be reconciled to, or shall hold communion
with, the See or Church of Rome, and shall profess the Popish religion,
or shall marry a Papist.” Asked to rule on the issue of the Act of Settlement’s
constitutionality in Canada today, an Ontario Superior Court judge, responding
to a legal complaint from a Canadian citizen rejected the legal challenge
though on somewhat technical grounds. These involved the territorial limits
of application of the Canadian Charter’s “equality” stipulation – that
is, as not extending to Great Britain. It is an example of a constitutionally
wise and prudent judge consciously and deliberately choosing not to rule
on the substance of a law enacted, in some earlier, bygone age, by what
is now today a sovereign, independent state in relation to Canada and one
with which, for long-time historical reasons, we maintain the warmest of
relations. The comity observed by sovereign states with each other, and
International Law itself, would enjoin no less, however objectionable that
ancient British Imperial law might appear to be to our contemporary multi-cultural
Canada.
It may sensibly be left to the British government and the British Parliament
to “correct” injustices or absurdities in their ancient laws, if the occasion
or need should arise in a concrete case. British constitutional and ecclesiastical
lawyers who have discussed the Ontario court ruling in recent months feel
that such an occasion will be provided, if not under British law then under
the new European law to which Great Britain is now also subject. Is that
not the best way to handle issues such as this in the future, without any
need for regrets or recriminations, or backward glances and criticisms,
as to our rich constitutional-legal legacy from Great Britain and the Empire?
Edward McWhinney
Vancouver
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