By Myrna El Fakhry Tuttle

Reposted from LawNow 45(4) with permission

In 1931, Canada became part of the British Commonwealth. It remains one of 54 Commonwealth nations to this day. Canada is a constitutional monarchy, which means it is headed either by a King or Queen. The patriation of Canada’s Constitution from Britain in 1982 gave Canada full independence. This did not change the Queen’s role as monarch of Canada, but it did restrict her powers in government.

Presently, the Queen is the head of state in 16 countries, counting the United Kingdom, Australia, Canada, New Zealand, and other countries in the Caribbean and Pacific Ocean. However, the recent claims of racism within the British monarchy, and the history of this monarchy, made me think twice about whether Canadians want to keep the Queen as head of state.

Discrimination, Colonialism and Slavery

In 1701, England’s Act of Settlement secured a Protestant succession to the throne and prohibited Roman Catholics, and anyone married to a Roman Catholic, from inheriting the throne. Old succession laws also stated that, under male primogeniture, a younger brother took priority over an elder daughter in the line of succession. Only when there were no sons, as in the case of Queen Elizabeth II, did the crown pass to the eldest daughter.

Gender and faith discrimination in the succession to the throne did not end until 2013. At that time, the British Parliament enacted the Succession to the Crown Act.

The Succession to the Crown Act ended the male preference primogeniture by amending the provisions of the Bill of Rights and the Act of Settlement. Under the new rules, the British monarch’s first-born child succeeds to the throne, regardless of their gender. This Act also allows those in the line of succession to marry Roman Catholics. The Act applies to those born after the 28th of October 2011 and came into force in 2015.

However, the ban against heirs who are Roman Catholics from ascending the throne remains untouched.

In addition to discrimination, there is also the history of the British monarchy’s involvement in slavery. Queen Elizabeth I was associated with Britain’s slave trade in the 1500s where the “monarch supported Captain John Hawkins, who captured 300 Africans and exchanged them for hides, ginger, and sugar in 1562”. The current Queen Elizabeth II has never commented on her predecessors’ actions and never apologized on behalf of the monarchy. However, in 2018, Prince Charles described Britain’s role in the slave trade as an “atrocity”.

I do not believe Canadians want, in the year 2021, a head of state who represents a colonial power that was connected to discrimination and slavery. Canadians want government officials to guarantee government institutions take measures on discrimination and racism by respecting and representing all citizens. This raises the question of whether Canada should split from the monarchy which would require amending the Constitution and discussing treaties signed with Indigenous peoples.

Amending the Constitution

The role of the Queen, including her representatives in Canada (the Governor General and the provincial Lieutenant Governors), is enshrined in the Canadian Constitution.

The Constitution Act, 1867 states that the “Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into one Dominion under the Crown of the United Kingdom”, with “a Constitution similar in Principle to that of the United Kingdom”.

Article 9 of the 1867 Constitution Act states that “Executive Power of which and over Canada is hereby declared to continue and be vested in the Queen”. Article 10 provides that the Governor General “[carries] on the Government of Canada on behalf and in the name of the Queen”.

Article 17 mentions that the Parliament of Canada consists of the Queen, the Senate and the House of Commons. Article 24 allows the Governor General to summon Senators in the Queen’s name. These are just a few examples. There are more articles in the Constitution related to the Queen.

According to Lagasse & Baud:

The Canadian constitution operates according to a ‘rule of recognition’ or a ‘principle of symmetry’ which states that whoever is the Queen of the United Kingdom is the Queen of Canada. There are several possible constitutional sources for such a rule or principle. It may be that Canada remains connected to the British Crown despite the Canada Act 1982, that the preamble to the Statute of Westminster, 1931 has legal force or that Canada simply follows British law of succession by convention. But no matter the source, the result is the same: matters of royal succession are determined by the United Kingdom and any change to this practice requires a paragraph 41(a) amendment.

The Constitution Act, 1982 did not change the office of the Queen or the Governor General and retained Queen Elizabeth II as Canada’s Head of State. However, there are ways to change that.

According to article 41(a) of the Constitution Act, 1982, amendments to “the office of the Queen, the Governor General and the Lieutenant Governor of a province” require the unanimous consent of “the Senate and House of Commons and of the legislative assembly of each province”.

Under this article, the office of the Queen, the Governor General and the Lieutenant Governor of a province cannot be touched unless all the provinces and the federal government agree to do so. This includes getting rid of the monarchy. Clearly, this might be challenging to accomplish.

It is important to note that before any constitutional amendment, there should be a national referendum approved upon by the prime minister and cabinet, on whether to sever ties with the monarchy.

Treaties with Indigenous Peoples

If Canada were to remove the Queen as its head of state, this could have a significant impact on treaties between the Crown and Indigenous peoples.

Starting in 1701 in the British colonies of North America, the Crown entered into treaties with Indigenous groups to support “peaceful economic and military relations”. According to the Government of Canada, there are 70 historic treaties in Canada signed between 1701 and 1923.

Royal historian Carolyn Harris said “if Canada were to transition to a different form of government, it could reopen some of these treaties”.

The governor general, who is the Queen’s representative in Canada, is responsible for those treaties. But according to poet and activist El Jones, governors general have not done much regarding Indigenous reconciliation. She stated that “if the governor general were actually working towards Indigenous sovereignty and working with Indigenous nations in order to use the Crown position to, for example, solve land claims or to intervene on cases where Indigenous people are challenging pipelines or environmental issues, then I think the office would have a role”.

Associate professor at the University of Manitoba Niigaan Sinclair said that in many Indigenous communities, there is “reverence for the Queen”. He explained that “ending the relationship between the Crown and Indigenous groups would involve a new approach to Indigenous land claims, in addition to constitutional amendment”. He added: “Indigenous peoples are invested in working with the relationship as it stands today, as opposed to blowing it all up and starting again”.

In February 2021, and after the resignation of former governor general Julie Payette, the Confederation of Treaty Six registered an official complaint with Buckingham Palace about the position being left vacant.

Indigenous people might have serious concerns if Canada wants to drop the Queen as its head of state. Perhaps a way to manage a transition would be close consultations with these groups considering their historical relationships with the Crown. Also, any constitutional amendment must take into consideration Indigenous rights and access to their lands, territories and resources.

Canada Can Discuss Its Next Head of State

In September 2020, Barbados announced it will remove the Queen as its head of state in November 2021. “The time has come for us to leave our colonial past behind,” said Governor General Sandra Mason.

In January 2021, and after the resignation of Julie Payette, who was accused of causing a toxic workplace environment, there were calls in Canada to leave the monarchy. A February 2021 poll found that 45 per cent of Canadians would prefer an elected head of state.

After recent allegations about the Royal Family, a poll indicated fifty-three per cent of respondents are of the opinion that the British monarchy “no longer has its place in the 21st-century”. They believe Canada should drop the monarchy. Also, forty-three per cent of respondents said “the recent events show the Royal Family holds racist views”.

In Australia, also after the claims against the Royal Family, there have been talks about a new referendum (the first one took place in 1999) to drop the Queen as head of state. Former Australian Prime Minister Malcolm Turnbull reiterated his calls to cut ties with the British monarchy.

At the time of writing this article, thirty-three nations in the Commonwealth identify as republics. More countries will presumably follow Barbados in stepping away from the monarchy’s history of discrimination and colonialism. Will Canada do the same?