King Charles or King William?

[g_bambino]

And what happens if we need a new GG appointed and William signs the papers?

The person who's name is on the papers is not governor general.

You are thinking of the letter of the law and I am thinking about how the law could enforced. I don't see the law as something that would be enforced.

The laws are enforced according to how they are written, not according to dreampt up on a whim alternate ideas that run counter to the law.

[TimG]

The person who's name is on the papers is not governor general.

So? If he/she is recognized as GG he/she will be GG. The only question is whether the SCC would throw out laws signed by the GG. My feeling is the SCC would not do that if constitutional discussions were deadlocked because of one or more intransigent parties.

The laws are enforced according to how they are written, not according to dreampt up on a whim alternate ideas that run counter to the law.

It would be no whim. It is would the considered decision of the SCC that took into account the political and social implications of its ruling. There are plenty of precedents for a delay in implementation after a ruling. 5 years is longer than most but I explained why it would be a sensible delay.

In any case, this is a hypothetical discussion that would only come it play if a province refused to co-operate with a quick amendment. I would hope it would never come to that.

Edited November 22, 2010 by TimG

[g_bambino]

So? If he/she is recognized as GG he/she will be GG.

Only if the laws are in order. In your situation, they are not.

It would be no whim. It is would the considered decision of the SCC that took into account the political and social implications of its ruling. There are plenty of precedents for a delay in implementation after a ruling. 5 years is longer than most but I explained why it would be a sensible delay.

Whether there's a delay of implementation or not is irrelevant. You're still talking about the Supreme Court ignoring the constitution to give justification to the Cabinet's ignoring the constitution so as to recognise a different monarch to the one law says is actually on the throne. This means that the Supreme Court and Cabinet are together re-writing the constitution by virtually removing not only the sections of the Statute of Westminster and Act of Settlement that relate to the succession, but also that in the Constitution Act 1982 which guides how changes to the constitution are to be made. That is well beyond the power of both the court and the Cabinet; you're talking about the kind of thing that goes on in tin pot dictatorships. Only parliament has the right to amend laws (that's in the constitution, too) and the law says that, to amend the succession, the agreement of the federal and all the provincial parliaments must be obtained.

In any case, this is a hypothetical discussion that would only come it play if a province refused to co-operate with a quick amendment. I would hope it would never come to that.

It's hard to say what would happen, of course. But, Canada does seem ill-prepared for a situation wherein the monarch is incapacitated, or a minor, or refuses to carry out his duties - we have no regency laws. Still, nothing you suggest would take place. The parliaments would have to rush to get some amendment passed, and hope the governor general doesn't die in the meantime.

[M.Dancer]

Omigod....like clockwork we get the comparison to America....no matter how irrelevant. Welcome aboard!

PS: Presidents Ford, Carter, and Reagan did not have "mistresses".

Reagan did....then he married her, just like Chuck...

[bush_cheney2004]

Reagan did....then he married her, just like Chuck...

He wasn't president yet.....

[TimG]

Whether there's a delay of implementation or not is irrelevant. You're still talking about the Supreme Court ignoring the constitution to give justification to the Cabinet's...

Actually, am not now. I am saying the SCC would find some way to allow the government to move forward in the face of a constitutional deadlock. A delay of implementation with the acceptance of 'temporary' measures would accomplish that goal and there would be no need to repudiate the constitution as currently written.

In any case, the government has other options to avoid a crisis including asking Charles to rubber stamp the GG and LG appointments while William takes over all of ceremonial duties. I doubt Charles would object to that.

Edited November 22, 2010 by TimG

[ToadBrother]

What you are saying makes no sense. The law cannot possibly compel Charles to serve has King if he does not want to. If he says he does not want to be King he will not be King. The legal framework(s) will have to adapt to whatever decision he makes.

I suppose if Charles truly wanted to abdicate, or be passed over, he could, but the law as it is written means that extraordinary steps would have to be taken. The last time someone decided they didn't want to be king, it required all the Parliaments of all the Realms to agree to the abdication and to the alteration in the line of succession.

Charles cannot simply just say "I don't want to be king." There is an enormous amount of work behind it. It's largely the reason that Churchill tried to encourage Edward VIII to stay on.

Those in the line of succession are not just citizens. The job of King isn't like your day job. These people are bound by constitutional requirements to their position. To alter that is to essentially alter the constitution (as happened with the abdication of Edward VIII). It's an enormous undertaking, and I do not get the impression at all that Charles is the silly man that his great-uncle was. He has never made a signal that he wants to be passed over, it's just some loud mouths who think going straight to William would somehow be good for the Monarchy.

Edited November 24, 2010 by ToadBrother

[ToadBrother]

I think you have the onus wrong. All Charles has to do is decide to go. After that it is up to politicians to figure out how to get the constitutional nicities sorted out (i.e. it is not Charles' problem). I suspect it would be a non-issue in most places and if it is polictically impossible to open the consititution the government would simply ignore the law and leave it up to the supreme court to resolve the matter with the common sense it has shown on a number of occasions.

The Supreme Court can only make judgments based on the Constitution. It cannot invent new constitutional rules. You seem to have the order of things wrong here. The SCC has no unilateral power to alter the succession any more than it has a unilateral power to remove freedom of expression from the Charter. SCC's do not invent constitutions, they merely interpret.

If a provincial government attempted to block the alteration of the line of succession, it would create a constitutional crisis, which would likely mean the Lieutenant Governor of that province would be forced to step in and override the Provincial government. It would be an ugly, messy thing, just like every other time a Vice-regal representative in the Commonwealth has felt compelled to override the Government, but it would certainly be necessary under the circumstances.

Edited November 24, 2010 by ToadBrother

[ToadBrother]

Actually, am not now. I am saying the SCC would find some way to allow the government to move forward in the face of a constitutional deadlock. A delay of implementation with the acceptance of 'temporary' measures would accomplish that goal and there would be no need to repudiate the constitution as currently written.

The SCC can only rule on the constitution as it stands. This deadlock would not be solved by the Supreme court.

In any case, the government has other options to avoid a crisis including asking Charles to rubber stamp the GG and LG appointments while William takes over all of ceremonial duties. I doubt Charles would object to that.

And what would be the point to that?

[Rue]

He wasn't president yet.....

But did he have Alzheimer's at that point? You ask me surely he could have done better then Nancy. She looked like the Joker in drag.

Let's get serious. One should only rule if they are good looking. Charles is a hideous product of incest. His wife is a man in drag.

Willy is a goofy looking dude but he is in good physical shape and unlike his father he is not a wimp and he is marrying a babe so that is all that counts. Its a no brainer. Kate is a babe Camilla Parker is a bowels or whatever her last name is.

As for Ronnie, he called his wife Mommy. Clearly he was a sick perv.

As for Nixon, it wouldn't surprise me if he had a golden showers fetish and had some fat call girl on call to pee on him.

That reminds me. Can you imagine if Charlie Sheen were elected President of the U.S.?

Seriously, Chuck is a goof. The thought of that drag queen wife of his being referred to as the Queen of Canada is ridiculous. There is only one queen of the United Kingdom who I have advised of repeatedly and that Queen already owns a residence outside Toronto-Elton John.

[Wilber]

It's a non issue except for the Royals. Charles will be King unless he decides not to be or croaks before his mom. No one will stand in his way if he decides to abdicate.

[ToadBrother]

And what happens if we need a new GG appointed and William signs the papers?

That person is not the GG. The Constitution is clear, the GG is appointed by the King/Queen-in-council. Until Charles is dead or rendered incapable of doing his duties as King of Canada, William would have no formal role in Canada. He's the heir to the Canadian throne, not a king, and certainly not invested with any of the executive powers that come along with it.

[ToadBrother]

It's a non issue except for the Royals. Charles will be King unless he decides not to be or croaks before his mom. No one will stand in his way if he decides to abdicate.

As the example of Edward VIII shows, it's not just as simple as "I don't want to be king". It would require the agreements of all the Commonwealth Parliaments (as per the Statute of Westminster).

What I'm suspecting isn't required is the Provinces to agree. While the constitution does require alterations to the Crown be unanimously accepted by the Provinces, that's more, as I understand it, to do with changes to the Prerogatives and Reserve Powers, or possibly to the ending of the Queen and her descendants as the Sovereign in Canada (ie. Canada becoming a monarchy). The Statute of Westminster doesn't mention any lesser legislature in any of the Commonwealth countries, like the state legislatures in Australia or the provinces in Canada, so I think a pretty good argument can be made that if it's Charles refusing the throne and everyone agreeing (the best Charles can do is say "I'd like to abdicate", he doesn't have the power to actually do it), it would ultimately be the Federal Parliament alone making the decision. Since the Statute of Westminster is still considered to be in full force, and since later constitutional acts in Canada have not sought in any way to alter it, I think that leaves Parliament alone to make the call. The provinces only become involved if there's something material to be changed in the powers of the Crown.

[Wilber]

As the example of Edward VIII shows, it's not just as simple as "I don't want to be king". It would require the agreements of all the Commonwealth Parliaments (as per the Statute of Westminster).

What I'm suspecting isn't required is the Provinces to agree. While the constitution does require alterations to the Crown be unanimously accepted by the Provinces, that's more, as I understand it, to do with changes to the Prerogatives and Reserve Powers, or possibly to the ending of the Queen and her descendants as the Sovereign in Canada (ie. Canada becoming a monarchy). The Statute of Westminster doesn't mention any lesser legislature in any of the Commonwealth countries, like the state legislatures in Australia or the provinces in Canada, so I think a pretty good argument can be made that if it's Charles refusing the throne and everyone agreeing (the best Charles can do is say "I'd like to abdicate", he doesn't have the power to actually do it), it would ultimately be the Federal Parliament alone making the decision. Since the Statute of Westminster is still considered to be in full force, and since later constitutional acts in Canada have not sought in any way to alter it, I think that leaves Parliament alone to make the call. The provinces only become involved if there's something material to be changed in the powers of the Crown.

Not debating the constitutionality of it, just my opinion that if Charles wants to abdicate, Parliament ('s) will not stand in his way. Personaly I think he would make a good king if he wants it but it would be stupid to force him to do a job he doesn't want. Maybe William doesn't want it either but that would be for him and his dad to hash out between them because one of them will have to do it if they want the Monarchy to survive.

[Wilber]

Frankly, I think Charles will be King because he will see it as his duty whether he likes the idea or not. His mother is big on duty and I think it rubbed off.

[Rue]

The provinces only become involved if there's something material to be changed in the powers of the Crown.

I would agree and add this on to the end of your sentence...that could adversely impact on their jurisdictional powers.

As well the United Kingdom could pass a law in its parliament allowing Charles to abdicate not withstanding the objections of Canada and that would make Canada's forcing the issue a moot point, so in practical reality of Charles wanted to abdicate or in fact never succeed Liz, a law would easily be rubber stamped. No parliament is going to question it realizing the U.K. could act unilaterally and then what? Chuck remains King of Canada but not the U.K.?

Let's get real. Mr. Bambino you know I appreciate your constitutional knowledge but pratice trumps theory when it comes to the constitution and its many protocols and doctrines.

[TimG]

It would ultimately be the Federal Parliament alone making the decision. Since the Statute of Westminster is still considered to be in full force, and since later constitutional acts in Canada have not sought in any way to alter it, I think that leaves Parliament alone to make the call. The provinces only become involved if there's something material to be changed in the powers of the Crown.

There you go. Your own analysis uncovered an ambiguity in the law with the SCC could use to justify a decision that accepted the federal parliament's selection for monarch. This is really my point: there are multiple interpretations to issues like this that give the SCC leaway and I am certain the SCC would use whatever loopholes it could find to ensure there is no 'constitutional crisis' over this issue. Edited November 24, 2010 by TimG

[ToadBrother]

There you go. Your own analysis uncovered an ambiguity in the law with the SCC could use to justify a decision that accepted the federal parliament's selection for monarch. This is really my point: there are multiple interpretations to issues like this that give the SCC leaway and I am certain the SCC would use whatever loopholes it could find to ensure there is no 'constitutional crisis' over this issue.

There's no ambiguity so far as I can tell. The Crown, as referred to in the Constitution, is not the Sovereign, but rather the state itself. The Sovereign is the embodiment, but not solely the Crown. This is a critical error people often make during these sorts of debates, the mixing of terms. The intention in the Constitution Act, 1982 was not about altering the person of the Crown, but rather the powers, or even the existence of the Crown (if we chose to become a republic). It was a safeguard put in place to assure that Ottawa could not unilaterally remove the Queen as head of state to be replaced with some other head of state (as had been pondered by Trudeau and his cabinet in the 1970s).

The SCC has really no leeway. The Statute of Westminster binds it just like it does every other organ of state throughout the Commonwealth. If Charles were to request being passed it over, it is for the Parliaments of the Realms to decide. I'll stand by my theory that if a Province attempted to foil the works by insisting that they get a say on the change in the succession, they would be going beyond their constitutional powers:

41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assemblies of each province:

(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;

This makes it clear that it is the office of the Sovereign and the vice-regals that counts here, not the person. The Statute of Westminster, every bit as much a part of the Constitution as the Constitution Act, 1982, deals with the person of the Sovereign:

And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom:

As I said, the common mistake here is to mistake the office of the Sovereign with the person of Sovereign. They are two different things. Section 41.a of the Constitution Act, 1982 deals specifically with the regal and vice-regal offices, the Statue of Westminster is dealing specifically with the person of the Sovereign, and the Statue of Westminster makes no provision for the provinces of Canada or the states of Australia in regards to the person actually occupying the Throne. To make it clearer, the Statute does specifically mention the Australian states and Canadian provinces on the matters of their powers afforded by the Australian and Canadian constitutions.

(You can find the text of the Statute of Westminster, 1931 at http://www.solon.org/Constitutions/Canada/English/StatuteofWestminster.html ).

Edited November 24, 2010 by ToadBrother

[TimG]

There's no ambiguity so far as I can tell.

You just acknowledged ambiguity with the statement:

I *think* that leaves Parliament alone to make the call. The provinces only become involved if there's something material to be changed in the powers of the Crown.

Whether the provinces are entitled to block this change requires an interpretation of the constitution. It is not stated clearly. Edited November 24, 2010 by TimG

[ToadBrother]

You just acknowledged ambiguity with the statement:

Whether the provinces are entitled to block this change requires an interpretation of the constitution. It is not stated clearly.

The more I review the Statute of Westminster and the amending rules in the Constitution Act, 1982, the less and less I think there's any role for anything below the Parliaments of the Realms. The Statute makes it very clear that changes to the succession (which is what any attempt by Charles to be bypassed would constitute) is clearly marked out in the Statute as the prerogative of Parliament. As I said, further down in the Statute specific mention of the Canadian provinces and Australian states is made, so if the authors of the Statute had wanted to afford them some say in the case of alteration of the succession, they would have done so. There's no ambiguity. The Canadian provinces and Australian states do not have any say in the succession. That is specifically within the federal Parliaments of those two countries.

I'll reiterate what I said. Section 41.a of the Constitution Act, 1982 deals specifically with the regal and vice-regal offices. The preamble of the Statute of Westminster, 1931 deals specifically with the Throne itself (the person of the Sovereign). These are two quite separate constitutional entities, and thus the Constitution Act, 1982 does not give the provinces any say so far as the alterations to the succession, but rather to the powers that the Monarch possesses.

Edited November 24, 2010 by ToadBrother

[TimG]

These are two quite separate issues, and thus the Constitution Act, 1982 does not give the provinces any say so far as the alterations to the succession, but rather to the powers that the Monarch possesses.

IOW - The constitution makes sense. It would be silly to give provinces such powers. Now my ramblings on this thread started because bambino said that Charles could not step down unless he convinced all 10 premiers to let him. It struck me as a crazy a situation and that there had to be a work around even thought I did not know what it was. Fortunately, it appears that bambino may be wrong and it is just the feds which makes it a trivial issue.

[ToadBrother]

IOW - The constitution makes sense. It would be silly to give provinces such powers. Now my ramblings on this thread started because bambino said that Charles could not step down unless he convinced all 10 premiers to let him. It struck me as a crazy a situation and that there had to be a work around even thought I did not know what it was. Fortunately, it appears that bambino may be wrong and it is just the feds which makes it a trivial issue.

It's an interesting question and one that helped me clarify my own understanding. I have to admit that I've never had so much cause to dig into our constitution as since I joined MLW. These sorts of questions help clarify things in my head.

That being said, I still doubt very much that Charles is going to attempt to remove himself. He's spent much of his life preparing to be king. As it is, unless the Queen's health takes a sudden precipitous decline, I imagine he will be near or over 70 by the time he ascends the Throne, so I doubt his reign would hit twenty years, so William won't be an old codger when he gets the job.

[g_bambino]

Section 41.a of the Constitution Act, 1982 deals specifically with the regal and vice-regal offices. The preamble of the Statute of Westminster, 1931 deals specifically with the Throne itself (the person of the Sovereign). These are two quite separate constitutional entities, and thus the Constitution Act, 1982 does not give the provinces any say so far as the alterations to the succession, but rather to the powers that the Monarch possesses.

Well, that's not how the Ontario Superior Court interpreted it. Accodring to a ruling made by that court in 2003, S.41 of the Constitution Act 1982 does indeed apply to changes made to the Act of Settlement, which, as we know, governs the line of succession:

The office of the Queen is such a fundamental part of our constitutional structure that amendments to the Constitution in respect of that office require the unanimous consent of the federal and provincial governments.

Since the Queen occupies such a central place in the Canadian Constitution, the respondents submit that the rules governing the succession to the throne are themselves essential to the proper functioning of this branch of our constitutional scheme. In the result, these rules are by necessity incorporated into the Constitution of Canada...

Unilateral changes by Canada to the rules of succession, whether imposed by the court or otherwise, would be contrary to the commitment given in the Statute of Westminster, would break symmetry and breach the principle of union under the British [sic] Crown set out in the preamble to the Constitution Act, 1867. Such changes would, for all intents and purposes, bring about a fundamental change in the office of the Queen without securing the authorizations required pursuant to s. 41 of the Constitution Act, 1982.

O'Donohue v. Canada

Charles could not abdicate the throne without the consent of the federal and all ten provincial parliaments.

[fix quotation]

Edited December 7, 2010 by g_bambino

[Oleg Bach]

Give the handsome kid the throne...Charles is eccentric and inbreed - William is the product of an improved set of genes - and the little red haired bastard younger brother is a product of adultery and Ritalin.

[TimG]

Charles could not abdicate the throne without the consent of the federal and all ten provincial parliaments.

The key word is 'interpretation'. I am sure the SCC would have a different interpretation if it is faced with a constitutional deadlock as a result of an abdication.