Prince George. Prince George.! I can't stop saying it. It is an awful lot of fun to think that the new royal baby carries the name of our fair city. But royalty has become a kind of enigma in the 21st century and, so along with the gentle playfulness that has emerged on social networks, by this I mean the picture of Catherine and William holding a swaddled Mr. PG, there has also come questions about the role of the monarchy in modern democracies.
Canada is a constitutional monarchy and that means that our head of state is the Queen, represented here in Canada by the Governor General, David Johnston and by Lieutenants Governor in the Provinces. The head of state is bound by the rules of the constitution. Canada's head of government is the Prime Minister. The whole point of this hierarchy is to create a separation of power. I have argued over the last few months about the importance of the institutions that frame our political life, including the Senate. I have made these arguments primarily because these institutions structure our politics; they provide a set of rules by which state and individual power is held in check.
Curiously the birth of Prince George (I really do like saying that) has created a constitutional conundrum in Canada. The problem would have been more acute if the baby had been born Princess Georgina. You see the government in Britain passed a new succession law that would allow a princess, born first into the line of succession, to become Queen over a prince born second in line in the royal lineage. This law also allows a potential monarch to marry a Roman Catholic. All of the Commonwealth countries have to pass a similar law, including Canada. The federal government passed the law in March but now there is a challenge being mounted by the Quebec government and two Quebec law professors. You may wonder if these professors believe that a woman should not take the throne but this has little, in fact, nothing to do with the challenge. The challenge is the result of the "rule to change the rules" or the "amending formula" in the Constitution Act, 1982.
When I teach my students about constitutional amendments I sometimes use a baseball analogy. I like the idea of making my dad proud. He'll know that our weekends spent at Blue Jay games were not for naught. Anyway, I'm going to use the example of the recent All Star Game to help explain the challenge to the succession law.
As you might know, there was discussion at the last week's All Star Game about the "prize" that comes with winning the game: the winning league (American or National) gets home team advantage in the first games of the World Series. Now let us assume that Major League Baseball decided to change the rule and withdraw the prize of home field advantage. That might be ok if they asked all the leagues BEFORE the game but it would surely be unfair, if, after the American League won the game, the reward was rescinded. It would be particularly galling if the only people who were asked about the decision to change the rules were members of the National League. You see my point is that if you have a rule AND if you have rules about how to change the rules, you can't pick and choose when the rules apply and when they don't. Making the rules and the rule to change the rules explicit is a key element of justice and fairness.
The two professors from Universit Laval argue that the Federal Government cannot change the rules of succession without consulting the provinces because the rule to change the rule says that, "An amendment to the Constitution of Canada in relation to the following matters may be made...only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province." And, one of the eligible amendments is to "the office of the Queen." Quebec's argument is that there is an explicit "rule to change the rules" of succession and it includes asking the provinces. The worry, I am sure, is less about this particular case and more about the precedent it would set if the federal government made the amendment without, as Quebec sees it, following the rules.
