Between straitjacket and shield


According to recent polls, in the wake of the death of Queen Elizabeth II, 60% of Canadians would be in favor of a referendum on the scrapping of the monarchy. And 70% of them say they have no emotional connection with the British Crown.

On paper, the idea of ​​an amicable divorce with the monarchy therefore seems to be based on a broad consensus. Would it be so easy to find common ground on an alternative formula for replacing a Head of State made in Canada to King Charles III? It is far from certain.

However, the main reason why there will not be a plebiscite on the issue has more to do with constitutional mechanics than with the inability to agree on another model. Even if three quarters of Canadians rallied to the idea of ​​abolishing the monarchy within the framework of a popular consultation, it would be enough for a majority in one or a few Canadian provinces to cling to it to abort the debate.

It is because, according to the Constitution, a change of this order requires the assent of all the provinces. Faced with the desire of a majority of his electors to retain the parliamentary monarchy, would a provincial premier dare to defend the contrary position at the constitutional table? To ask the question, is to answer it.

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It is undoubtedly in Quebec that the foreseeable fishtail end of the next chapter of the debate on the monarchy is likely to be the most disappointing. It is not new that the place of the institution in the Canadian political picture is decried there.

But before deploring the rigidity of the amending formula of the Canadian Constitution, we should still consider certain advantages resulting from its constraints.

This is the case, for example, of the provision that allows the provinces and the federal government to exempt laws from the application of certain sections of the Canadian Charter of Rights and Freedoms. Already at the time of patriation, in 1982, this concession made by Prime Minister Pierre Elliott Trudeau to the provinces to obtain their consent to his draft charter had been criticized in many circles outside Quebec.

The feeling that the notwithstanding clause distorts the Charter of Rights is particularly widespread within the federal Liberal Party. So much so that, during the debate in English during the 2006 federal campaign, Paul Martin had startled his Quebec candidates by promising, if he were returned to power, a law to prohibit the use of this provision at the federal level. The Liberal strategists thus hoped to consolidate the party’s support against Stephen Harper’s Conservatives in Ontario.

From Quebec’s point of view, the main result of a change in the allocation of seats in the Upper House would be to accelerate the reduction of its weight in federal institutions.

Since the government of François Legault invoked this provision (known as the « notwithstanding clause ») in an attempt to shield Laws 21, on secularism, and 96, on language, from challenges based on Charter, the movement to repeal it has gained momentum.

These days, a good number of intellectuals from outside Quebec openly hope that the Supreme Court will seize, in favor of its possible examination of these two Quebec laws, the opportunity to mark out this recourse.

If critics of the notwithstanding clause pin so many hopes on the legal process, it is because the path of a constitutional amendment to repeal it is little more promising than in the case of the monarchy. The current provincial consensus is rather in favor of maintaining it.

In recent years, the requirements of the amending formula have served as a bulwark against a status quo which benefits Quebec on two other fronts. In particular, they have stymied the Conservative dream of a Senate whose distribution of seats would better correspond to Canadian demographics.

From Quebec’s point of view, the main result of a change in the allocation of seats in the Upper House would be to accelerate the reduction of its weight in federal institutions.

In the debate on the composition of the Senate, Quebec can count on the provinces of the Atlantic region, which all benefit from a large overrepresentation in relation to their demographics, to block the road to a constitutional amendment. The same regional dynamic means that Alberta’s dream of eliminating the very principle of equalization from the Constitution is bound to come up against a federal-provincial wall.

So most of the time, the straitjacket of the amending formula of the Constitution also acts as a shield.

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