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PostPosted: Mon Feb 04, 2013 5:18 pm
 


Filibuster Cartoons
Title: A Moore modern monarchy (click to view)
Date: February 4, 2013
Try to talk about the monarchy with a Canadian politician and he'll likely spit that it's "not a priority." There are so many other, endlessly more pressing matters to attend to, he'll say with great stagy exasperation, please don't worry my important brain with something so trivial.

But recently Canada's politicians have decided to worry themselves with something very trivial indeed. Last Thursday, James Moore, Prime Minister Harper's minister of heritage, announced that Canada would be introducing legislation to amend England's royal Act of Settlement, the thing that determines in which order the various princes and princess ascend to the throne. We already know who's going to rule for at least the next 70 years, but what about after? We need closure!

Under the terms of the current succession order, which was drafted in the aftermath of Britain's Glorious Revolution, boy children of the reigning monarch always take priority over their sisters. A woman like Elizabeth was only able to become queen because she had no brothers. Also because she didn't marry a Catholic; that's against the rules as well.

Now, back in 2011 you may recall that the various Commonwealth despots agreed-in-principle to turf these rules per the demands of Britain's Prime Minister Cameron, who apparently has nothing else to worry about. This consultation was deemed necessary under the terms of the 1931 Statute of Westminster, which declares that any country sharing "common allegiance to the Crown" — even Barbados — has to assent to "any alteration in the law touching the Succession to the Throne." But the Westminster statute also says that agreements-in-principle don't go far enough, there has to be full "assent as well of the Parliaments of all the Dominions."

So here we are. Minister Moore's bill, which was passed unceremoniously by the House of Commons this morning, is a short one, and says little more than "Canada assents to this thing Mr. Cameron wants." Moore says now the monarchy can be "a vital and modern institution that reflects Canadian ideals," which I guess almost makes sense, so long as you accept the absurd premise that an institution as inherently sexist, racist, and discriminatory as a system of hereditary birthright within a single British family can ever be brought in sync with an inclusive 21st century western democracy.

What's most interesting about all this from a Canadian angle, however, is the possibility that our government has just passed a brazenly unconstitutional law.

As I noted in my HuffPo column today, there's a fair number of constitutional scholars in this country willing to argue that the rules of the monarchy in Canada (or the "Canadian monarchy," if you're one of those people) cannot be modified by mere statute alone. As someone who's debated this issue endlessly in the media, I can't count the number of times some monarchist has beaten me over the head with the claim that cutting Canada's ties to the royal family is, for all intents and purposes, "constitutionally impossible," so strict are our laws governing it.

The debate basically centers around two questions. First, article v, s.41(a) of the Canadian Constitution Act explicitly states that any changes to the "office of the Queen" require a formal constitutional amendment, approved unanimously by the legislatures of all 10 provinces.

Presumably, this "office of the Queen" really means "office of the monarch," since no one expects the piles of Canadian law that make mention of "the Queen's" powers to suddenly become invalid once Elizabeth II passes and we get a king. But if that's the case, doesn't deciding who gets to be queen alter "the office of the Queen?"

Think about it this way: would some new law setting a five year term limit for all future monarchs alter "the office of the Queen?" How about a rule that Elizabeth will have to run for re-election as monarch of Canada in 2016?

Question two is even thornier. Is Britain's 1701 Act of Settlement, the law Mr. Cameron wants Canada to change, itself part of the Canadian constitution?

Back in 2003, a republican-minded Toronto city councillor named Tony O'Donohue launched a quixotic legal challenge against the Act of Settlement, on the grounds that as a member of the Catholic faith, it was unfair for Canada to have a law on the books that explicitly discriminated against Catholics. Especially since our Charter of Rights promises freedom from "discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability," and declares that laws that contradict such progressive sentiments shall have "no force or effect."

But the supreme court of Ontario threw Tony's case out on the pretext that the Act of Settlement was no any ordinary statute, but rather one of the cornerstones of Canada's entire political regime. "These rules are by necessity incorporated into the Constitution of Canada," said the judge, and you can't use one part of the constitution to declare another part invalid, no matter how bigoted it may be.

I'd be curious to hear what any budding constitutional scholars in my readership think, but personally, I'm leaning towards judging the Harper government's actions as unconstitutional for the reasons stated above. It may be a gigantic legal nightmare to go through Canada's hellish constitutional amending formula just to ratify a couple uncontroversial changes to an archaic piece of British legislation, but them's the breaks.

Canada supposedly wants to be an independent monarchy, tied to London only through a "personal union" with Elizabeth II herself. Which is all well and good, but that requires some sacrifices as well. Colonies blindly ratify a foreign capital's legislation; independent countries pass their own, on their own terms, using their own domestic procedures.

Not that a republican like me would have much to complain about if the Canadian government's rushed approval of Mr. Cameron's bill is allowed to stand, of course. It's fun to think what other changes to the monarchy the Canadian parliament could pass unilaterally someday...


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PostPosted: Mon Feb 04, 2013 5:21 pm
 


Nice to see you folks taking your constitution as seriously as we take ours. [B-o]


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PostPosted: Mon Feb 04, 2013 5:39 pm
 


In before "Why should we care what some old piece of paper says?! We decide our own Constitution!"

Of course you do; that's why you have an amendment process. Now go use it.


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PostPosted: Mon Feb 04, 2013 5:39 pm
 


I happen to support the monarchy but want for more reaching change than just a facelift in image.


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PostPosted: Mon Feb 04, 2013 6:36 pm
 


Yes, still get it, JJ, you hate the monarchy.


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tl;dr for sandorski and others who hate my posts; this is not an argument about constitutional ramifications because that argument has been settled. The whole Republican vs Monarchist debate does not fit within the scope of the Constitution, nor the duties of the Judicial branch. Below is a purely legal explanation; my own opinions are on the fence, as usual.

Quote:
Question two is even thornier. Is Britain’s 1701 Act of Settlement, the law Mr. Cameron wants Canada to change, itself part of the Canadian constitution?


Yes. Like the treaties, the Canadian Charter of Rights and Freedoms, and various other documents, it was incorporated as a referenced document into our Constitution. O'Donohue v. Canada resulted in precedence being set; not only was it part of the Constitution, but as a part of that Constitution, claims of breaches of the equality rights section were dismissed.

Given you answered this in your own response, that wasn't really a valid question. The answer is utterly obvious, no matter how much you want to include the image if viable legal discontent. I'll explain more later.

Hence:

Quote:
What’s most interesting about all this from a Canadian angle, however, is the possibility that our government has just passed a brazenly unconstitutional law.


This is entirely incorrect. It follows the constitution and its derived precedence. The only way it would be unconstitutional was, if, say, we didn't have a monarchy. We got rid of the penny, not the Queen on the back of it. Stating a defeated case as precedence for your position that it is possibly unconstitutional is an odd argument.

"Driving yourself is legal... but some say it should be illegal, so changing speed limits is against the law!"

Right now, it is entirely constitutional viable. A failed constitution case in Ontario does not meet the standard of weight to match your claims quoted here.

As for your Huffpo article reference:

Quote:
145 years since Confederation and we can't even agree on what "The Crown" means, let alone what the Governor General is supposed to do.


Here. Let me help you.

We all agree on what the crown is, and who her legitimate representative is. The problem is that legal considerations are pigeon holed to the back pages for basic political science concepts. The only problem was that modern precedence has simply given increased power to the PMO and the legislative body, so there is less efficacy to the Crown. Natives were promised the ability not to be impacted by Canadian populism, which we are now reneged on since we have more power as Canadians versus what the crown had before.

Notice, for example, that our sovereignty was not attacked, but that they had every right for the Crown to be there, even if no power could be exercised by said Crown. Hence, the GG being there? Entirely valid. Having no power? Entirely valid. An attack on our sovereignty? Not at all. The Queen knew her boundaries and told them the GG was her representative; note her precedence was to say "hello" and hand over native rights issues to Canadian PM's anyways, as it was with Chretien (I noted this in the linked post, to one of your other threads).

Quote:
The debate basically centers around two questions. First, article v, s.41(a) of the Canadian Constitution Act explicitly states that any changes to the “office of the Queen” require a formal constitutional amendment, approved unanimously by the legislatures of all 10 provinces.
Presumably, this “office of the Queen” really means “office of the monarch,” since no one expects the piles of Canadian law that make mention of “the Queen’s” powers to suddenly become invalid once Elizabeth II passes and we get a king. But if that’s the case, doesn’t deciding who gets to be queen alter “the office of the Queen?”
Think about it this way: would some new law setting a five year term limit for all future monarchs alter “the office of the Queen?” How about a rule that Elizabeth will have to run for re-election as monarch of Canada in 2016?


Um, setting criteria for monarchical succession really doesn't stop them from being a monarch.

Let's make this very clear; lines of succession being decided on by a great many people does not stop them from being lines of succession and, hence, a monarch, unless you depend on an oddly skewed definition (which you might have?) of what a monarch is. A constitutional monarchy means we have a constitution, and a monarchy. There are definitions and limits on the powers and duties of the monarch by that constitution. Note, here, that they are still a monarch. Changing those restrictions? Still a monarch.

Other historic alterations has not stopped monarchs from being monarchs. A monarch bowing to public pressure to step down, or those who left voluntarily, like Edward of England or the more recent woman in Denmark (I believe), does not change their status as monarchs.

Second, yes, we are aware that HRH will die one day. I trust in the fact that it will not lead to the collapse of the legal system, as people in law tend to have some base level of rationality and will be able to recognize that the interpretation of the term for legal utility is not "one of the royalish vagina thingamajiggers..."

Quote:
But the supreme court of Ontario threw Tony’s case out on the pretext that the Act of Settlement was no any ordinary statute, but rather one of the cornerstones of Canada’s entire political regime. “These rules are by necessity incorporated into the Constitution of Canada,” said the judge, and you can’t use one part of the constitution to declare another part invalid, no matter how bigoted it may be.


Okay, so let's first fix your terminology; Ontario has a "Superior Court." Not a Supreme Court. You are north of the border, this isn't the USA. Second, the highest court in Ontario is the Appeals Court, which also ruled in the Queen's favour. This was on changing the manifest intent of the preamble of our Constitution; one that includes that we wanted a system similar to the UK, one that included a monarchy. The court ended up stating that it felt to was outside of the jurisprudence of the legal experts of our country to make that decision unilaterally for all Canadians in addition, as it "would have the courts overstep their role in our democratic structure." Entirely legitimate in not changing Canada entirely from behind an unelected bench. Third, such a decision, like treaties, would inherently impact numerous other Commonwealth countries and undermine a system that unites us without justifiable cause. Finally, for a change to occur, there must be a public interest, which did not exist.

"It has been seen that when public interest standing is sought, consideration must be given to three aspects. First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the court?"

The above is necessary for Constitutional considerations. Keep in mind that there are rights BALANCING portions of our constitution, based on the harms and benefits of the system. The harm of a historical artifact being kept around is minor in contrast to removing it, regardless of perceived injustices on all believing they can't be queen (when all can be PM).

A number of other systems, such as royal prerogatives and various functioning of the Canadian government, are tied into our current system. Demanding the removal of the Queen would require a fundamental reshifting of a great deal of our legal structure, one that, legitimately, is not worth it and would never be accepted by the majority of the provinces; especially Quebec, who would use this as a method of attempting to make future changes to the Constitution.

Finally, although not considered directly, the duties of our monarch are, in part, religious, as she is the head of the Church of England. The case was inherently irrelevant as a result, like demanding Catholics be allowed to head up United Churches, or Mosques on the basis of "bigotry." This is because the Queen of Canada is also the Queen of the United Kingdom, and as stated in the decision, "it is not a separate office." The end result is that we all have the ability to change the duties of the Queen, but they must be ratified by all of us under that union; just like treaties, and we must respect the beliefs of others in what this particular one entails; and for the British, it is a religious one.

Hence, English case law was used and the challenge was defeated. Canadians decided to have the Queen, and our Constitution reflects that relationship. We don't lose sovereignty from having the same Queen as another nation, or if any is loss, it's significance is not of import for domestic or international purposes. The body is, after all, ceremonial.

Quote:
Canada supposedly wants to be an independent monarchy, tied to London only through a “personal union” with Elizabeth II herself. Which is all well and good, but that requires some sacrifices as well. Colonies blindly ratify a foreign capital’s legislation; independent countries pass their own, on their own terms, using their own domestic procedures.


Why did Moore do it through our parliament, and why did he wait a year or two after the decision to even make a statement of support for the 2011 idea? Seems to me we fit fine into the independent standpoint.

We didn't "blindly" ratify it, and it passed with little ceremony and almost no time because it's not as much of a sacrifice as you think? It's a minor change to the succession laws -- they can't even do it if Canada doesn't ratify it. Let's go batshit nuts over it. Unless, like most Canadians, you aren't an active anti-Monarchist. This wasn't so much "rushed" as it was completely lacking in contention with no harms and little else to do but vote it in.

This isn't the place to make the Republican stand, JJ. It's entirely irrelevant to Canadians as a whole, even to monarchists, and a minor perfunctory change to Canadian law. Let it go and fight a more interesting battle. You want to get rid of the monarchy? Go for it. Frankly? I don't care. But it's definitely not going to be removed on the basis you have set. Constitutional law does not provide the precedence, and this post is directly focused on that and that alone.


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PostPosted: Mon Feb 04, 2013 8:56 pm
 


Canada should stage a one man coup, overthrow the current government by having one man say "I am now the new government", then lay out a new constitution that established Canada as a republic. The whole mess of the monarchy needs to die off.

A simple new law that reads basicly 'Anything that needed the queen to be legal is now legal but with the government acting as the queen. Fuck you lawyers you know what we mean, go die in a fire if are thinking about making a legal case to argue over how it's not actualy legal, it is now.'

That way we can keep all our current laws without paying to pay the lawyers to waste everyone's time being pedantic nit-picky tards over it.


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PostPosted: Mon Feb 04, 2013 9:10 pm
 


Xort wrote:
Canada should stage a one man coup, overthrow the current government by having one man say "I am now the new government", then lay out a new constitution that established Canada as a republic. The whole mess of the monarchy needs to die off.

A simple new law that reads basicly 'Anything that needed the queen to be legal is now legal but with the government acting as the queen. Fuck you lawyers you know what we mean, go die in a fire if are thinking about making a legal case to argue over how it's not actualy legal, it is now.'

That way we can keep all our current laws without paying to pay the lawyers to waste everyone's time being pedantic nit-picky tards over it.


or we can reform the current system. A little less drastic than your plan, but reform tends to freak less people out than coups do.


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PostPosted: Mon Feb 04, 2013 10:40 pm
 


Xort wrote:
Canada should stage a one man coup, overthrow the current government by having one man say "I am now the new government", then lay out a new constitution that established Canada as a republic. The whole mess of the monarchy needs to die off.

A simple new law that reads basicly 'Anything that needed the queen to be legal is now legal but with the government acting as the queen. Fuck you lawyers you know what we mean, go die in a fire if are thinking about making a legal case to argue over how it's not actualy legal, it is now.'

That way we can keep all our current laws without paying to pay the lawyers to waste everyone's time being pedantic nit-picky tards over it.



So basically you want Canada to be Fiji.


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PostPosted: Mon Feb 04, 2013 11:54 pm
 


monapublican wrote:
Xort wrote:
Canada should stage a one man coup, overthrow the current government by having one man say "I am now the new government", then lay out a new constitution that established Canada as a republic. The whole mess of the monarchy needs to die off.

A simple new law that reads basicly 'Anything that needed the queen to be legal is now legal but with the government acting as the queen. Fuck you lawyers you know what we mean, go die in a fire if are thinking about making a legal case to argue over how it's not actualy legal, it is now.'

That way we can keep all our current laws without paying to pay the lawyers to waste everyone's time being pedantic nit-picky tards over it.



So basically you want Canada to be Fiji.



or China.


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PostPosted: Tue Feb 05, 2013 4:24 am
 


Gunnair wrote:
Yes, still get it, JJ, you hate the monarchy.
Maybe because it's anathema to the very idea of freedom.

A monarchy determined by birthright is an incredibly backwards thing to exist in the 21st century.

Even if it's just a figurehead position, a grand amount of respect is given to the position, and to the person holding it. And why? Because that person's ancestor, a long time ago, told everyone that he had been, one way or another, chosen by God to rule the country, along with his family. Unless they did something that he didn't like.

I mean, Kate Middleton had to convert from Catholicism in order to marry Prince William, effectively because Henry VIII decided 500 years ago to tell the Pope to shove it.

So, if you are fine with the monarchy, you agree that members of a specific family must continue to be lavishly subsidized by the government, and abide by ancient, arbitrary rules, because said rules and subsidies were gifts from a God that you may not even believe in.

Honestly. Oireland and 'Murica figured this one out a while ago.


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PostPosted: Tue Feb 05, 2013 7:01 am
 


Murray_Smith wrote:
Maybe because it's anathema to the very idea of freedom.


That depends on how you define freedom. Is it the monarchy itself not free or the monarchy making the country not free? I can call foul to both because that depends on how legally restricted on a fundamental level a monarchy itself is and how a monarchy, specifically a ceremonial constitutional monarchy, can be able to restrict the rights of the people in it's respective nations.

Quote:
A monarchy determined by birthright is an incredibly backwards thing to exist in the 21st century.


The modernist argument against monarchy is getting pretty old. What exactly makes it backwards? Many things that we take for granted can be considered "birthrights". Even if it is backward, it doesn't mean we can't improve and update it's functions. Do you honestly think that the republics existing today are the same back in Ancient times or even 200 years ago?


Quote:
Even if it's just a figurehead position, a grand amount of respect is given to the position, and to the person holding it. And why? Because that person's ancestor, a long time ago, told everyone that he had been, one way or another, chosen by God to rule the country, along with his family. Unless they did something that he didn't like.


No. A monarchy's grand amount of respect given to the position depends solely on the current monarch holding it. Few people take notice of her predecessors to give such respect to Elizabeth II. I don't recall the first monarch of the current dynasty in Sweden (unrelated to the older ones) claim he and his family were chosen by god. In fact he used to be a republican. A monarch can just as well instantly gain disrespect, regardless of what family they're in. Woes regarding Prince Charles show this.

Quote:
I mean, Kate Middleton had to convert from Catholicism in order to marry Prince William, effectively because Henry VIII decided 500 years ago to tell the Pope to shove it.


No, effectively because protestant Whigs during the late 17th and early 18th centuries were against royal absolutism and thought a Catholic was most likely to return Britain to that.

Quote:
So, if you are fine with the monarchy, you agree that members of a specific family must continue to be lavishly subsidized by the government, and abide by ancient, arbitrary rules, because said rules and subsidies were gifts from a God that you may not even believe in.


As opposed to members of a specific family every 4 to 8 years must continue to be lavishly subsidized by the government, and abide by old, arbitrary rules and convention, because said rules and subsidies were gifts to the member choosing by a minority portion of his/her county's population in a popularity contest and he promised to a piece of paper and from a God that you may not even believe in?

Quote:
Honestly. Oireland and 'Murica figured this one out a while ago.


And it worked wonders for them both I'm sure.


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PostPosted: Tue Feb 05, 2013 7:58 am
 


Murray_Smith wrote:
Gunnair wrote:
Yes, still get it, JJ, you hate the monarchy.
Maybe because it's anathema to the very idea of freedom.

A monarchy determined by birthright is an incredibly backwards thing to exist in the 21st century.

Even if it's just a figurehead position, a grand amount of respect is given to the position, and to the person holding it. And why? Because that person's ancestor, a long time ago, told everyone that he had been, one way or another, chosen by God to rule the country, along with his family. Unless they did something that he didn't like.

I mean, Kate Middleton had to convert from Catholicism in order to marry Prince William, effectively because Henry VIII decided 500 years ago to tell the Pope to shove it.

So, if you are fine with the monarchy, you agree that members of a specific family must continue to be lavishly subsidized by the government, and abide by ancient, arbitrary rules, because said rules and subsidies were gifts from a God that you may not even believe in.

Honestly. Oireland and 'Murica figured this one out a while ago.


True, monarchies are somewhat backwards, but they are a link to our past. It's of course ironic you as an American would think that as you slavishly follow the outdated bit of your Constitution to the detriment of all, but that's beside the point. As for respect to the figure, well yes, because they are related by bloodline to a series of royal figures they gain that respect; whereas in your country, royalty is based upon popularity, so lavish attention is poured upon figures not because of their bloodline, but at how well they can market their lack of talent. Hence the royalty of the Hiltons, Kardashians, and now that cute little princess, Honey Boo Boo. These creatures weren't chosen by God, but were chosen by you (Americans) which is a bit of a sad commentary maybe on your society? :wink:

So yes, the Royal Family will continue to be lavished upon by government and they will abide by ancient arbitrary rules.... however, they serve the people and I'm trying to recall the last time one of your royals, a Hilton, Kardashian, a Jersey Shore duchess, or one from the Honey Boo Boo barony ever served in the military as is expected of our royals.

Hmmmmm..... :lol:


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PostPosted: Tue Feb 05, 2013 9:21 am
 


Gunnair wrote:

True, monarchies are somewhat backwards, but they are a link to our past. It's of course ironic you as an American would think that as you slavishly follow the outdated bit of your Constitution to the detriment of all, but that's beside the point. As for respect to the figure, well yes, because they are related by bloodline to a series of royal figures they gain that respect; whereas in your country, royalty is based upon popularity, so lavish attention is poured upon figures not because of their bloodline, but at how well they can market their lack of talent. Hence the royalty of the Hiltons, Kardashians, and now that cute little princess, Honey Boo Boo. These creatures weren't chosen by God, but were chosen by you (Americans) which is a bit of a sad commentary maybe on your society? :wink:

So yes, the Royal Family will continue to be lavished upon by government and they will abide by ancient arbitrary rules.... however, they serve the people and I'm trying to recall the last time one of your royals, a Hilton, Kardashian, a Jersey Shore duchess, or one from the Honey Boo Boo barony ever served in the military as is expected of our royals.

Hmmmmm..... :lol:
PDT_Armataz_01_37


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PostPosted: Tue Feb 05, 2013 9:57 am
 


Khar wrote:
tl;dr for sandorski and others who hate my posts; this is not an argument about constitutional ramifications because that argument has been settled. The whole Republican vs Monarchist debate does not fit within the scope of the Constitution, nor the duties of the Judicial branch. Below is a purely legal explanation; my own opinions are on the fence, as usual.

yadda.


Very elucidtaing post, Khar, thanks.


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