www.canadianreferendum.ca
THE PEOPLE AS THE COLLECTIVE HEAD OF STATE
A proposal for a citizens' constitutional referendum
Constitutional Referendum 1982-2024
Binding Living Document
FOOD FOR THOUGHT: Canada calls itself independent, yet the Constitution still vests "the Executive Government and Authority of and over Canada" in the Crown (Constitution Act, 1867, s. 9). Canadians have never been asked, in a vote, who should hold that final authority.
WHAT WE ARE PROPOSING
We propose that citizens and Indigenous Peoples, together, become the final decision-makers of Canada: a collective head of state, in partnership. This is a proposal for the future, not a claim about the law as it stands today. Under the Constitution Act, 1982, s. 41(a), any change to the office of the Crown requires the agreement of Parliament and every provincial legislature. Each First Nation would choose for itself whether, and on what terms, to take part.
The Time Is Now!
CROWN CORPORATION DEFINITIONS
Elements of a Corporation's Constitution
One of the main elements in a corporation's legal constitution is the continuity of its identity. This means that the original members and their successors are viewed as one. When an obligation or liability arises during the tenure of the original members of an aggregate or sole corporation, it remains binding on all subsequent successors, even if they are not yet named.
TWO KINDS OF CORPORATION, AND WHY THEY MATTER
The law recognizes two kinds of corporation. Understanding them explains how the Crown works today, and what a people's alternative could look like.
1. A CORPORATION SOLE: one office, held by one person at a time
A corporation sole is a legal office that continues even as the person holding it changes. The office never dies; it passes to each successor. The classic example is the Crown. This is why, in law, "the King never dies": the moment one monarch's reign ends, the next begins, and the Crown's rights and obligations carry on without a break.
(Sources: William Blackstone, Commentaries on the Laws of England, Book 1, ch. 18, "Of Corporations"; F.W. Maitland, "The Crown as Corporation" (1901) 17 Law Quarterly Review 131, which famously criticised the idea.)
2. A CORPORATION AGGREGATE: many members acting as one body
A corporation aggregate is a body made up of many members at the same time, which acts as one legal person with continuing existence. Examples include municipalities, universities and companies. Its members change, but the body continues, and its obligations continue with it.
WHY CONTINUITY MATTERS: OBLIGATIONS BIND SUCCESSORS
In both kinds of corporation, obligations taken on in the past continue to bind those who come after. Applied to the Crown, this is the foundation of a principle the Supreme Court of Canada has repeatedly affirmed: the honour of the Crown. Treaties and promises made by the Crown in the past still bind the Crown today (Haida Nation v. British Columbia, 2004 SCC 73; Manitoba Metis Federation v. Canada, 2013 SCC 14). In 1982, the English Court of Appeal also confirmed that the Crown's treaty obligations to First Nations in Canada had passed to the Crown in right of Canada (R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta, [1982] QB 892).
THE IDEA BEHIND OUR PROPOSAL
Today, final authority in Canada rests in a corporation sole: one office, held by one person, who is not chosen by Canadians. We propose that it rest instead in the people acting together, citizens and Indigenous Peoples as one continuing body, with the same continuity, and the same binding obligations, that the Crown carries today, including every treaty promise.
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