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Gavin Guthrie
Sir:
While Edward McWhinney (Guest Editorial, Autumn 2005 issue) is correct
that the legal ties between the Canadian and UK governments have withered
away, and that for over fifty years we have had a Canadian Governor General
to represent the Sovereign in Canada, it appears, that the knowledgeable
scholar is somewhat misguided in his belief that constitutional developments
over the past century have pushed Canada to a point where we are but one
step away from becoming a republic with our Governor General as the de
facto president.
I say this because McWhinney's theories seem to be formed on not only an
inability to recognize that the Crown and the UK government are distinctly
separate entities, but also on the incorrect assumption that the Sovereign's
role in Canada has somehow been reduced to nothing more than giving formal
consent, in consultation with her UK Privy Council no less, to the Canadian
Prime Minister's recommendation for the Governor General, and on the mistaken
belief that the line of succession to the Crown lies solely within control
of the UK Parliament. By claiming all of the above, he is not-so-subtly
suggesting that the Crown has almost no authority left in Canada, and that
last remaining link to the Queen makes Canada's government still subservient
to the British.
But, in fact, he has it all backwards; the Canadian Constitution continues
to vest all executive authority in the Crown, and the British government
has no influence in our affairs whatsoever.
It was with the 1931 Statute of Westminster that the UK's ability to legislate
for Canada effectively ended, and the last constitutional ties between
our governments were completely severed with the Canada Act of 1982. As
the Constitution Act 1867 still creates Canada as a nation unified under,
and with all executive authority vested in the Crown Canada is therefore
now a wholly independent constitutional monarchy which, though it happens
to willingly share its Crown in a symmetrical fashion with fifteen other
nations, still has a Queen of Canada who performs her constitutional functions
within Canadian jurisdiction completely apart from her constitutional role
in the UK, or any other Commonwealth Realm, including appointing her Governor
General, on the sole advice of her Canadian Prime Minister, and under the
Great Seal of Canada, to represent her federally.
As no Act of the UK Parliament has effect in this country, the Crown in
Right of Canada is under the control of the Canadian Parliament alone,
including, with the 1701 Act of Settlement a part of our Constitution,
the line of succession to it (hence the Statute of Westminster outlines
the convention that no Realm, including the UK, can alter their line of
succession without the consensual adoption of the same change by all the
other Realm parliaments). And though the 1947 Letters Patent issued by
His Late Majesty King George VI do allow the Governor General to exercise
the Royal Prerogative and reserve powers of the Crown, it is only on the
Sovereign's behalf; since they still clearly state that the powers lawfully
belong to the Monarch, in no way have the Letters stripped the Queen of
her constitutional authority.
So, the Gordian Knot has indeed long since been cut, on a basis of mutual
consensus and joint, reciprocal action between London and Ottawa. But,
that was between our governments and parliaments only, and the process
actually served to make Canada a sovereign constitutional monarchy, not
some pseudo colony. Thus, legally there is actually much left to be changed
before Canada can exist without the Crown, an institution that is far more
deeply rooted in our nation than simply in the minds of aging veterans.
Our Parliament could certainly engage in the legal acrobatics that McWhinney
suggests. It would cut our ties to the Crown without undertaking the Herculean
task of constitutional reform. But without the Crown actually being removed
by the proper amending process the country would merely become some bizarre
pseudo republic with a president who still constitutionally derived their
power from the Sovereign they continued to legally represent. I doubt either
republicans or monarchists would accept such changes, and so, until the
constitution is opened for the purpose of creating a republic, the Crown
will continue indefinitely with the sentimental, as well as the legal,
attachments still firmly in place.
Gavin McGill Guthrie
Toronto
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