The Supreme Court of Canada declined to hear a Charter challenge against the oath to the Queen that’s required of new citizen. My fellow blogger Léonid Sirota was unimpressed with the decision. He also didn’t think much of my quip that efforts to change the oath should have focused on Parliament to begin with. Unfortunately, as the SCC’s refusal to hear a Charter challenge to the law of royal succession further highlights, attempts to use one part of the constitution to undermine another are ill-fated. And while I understand Sirota’s contention that the case didn’t aim to undermine the legitimacy of the Crown, I think that was the underlying issue. I suspect the courts believed this, too. Nonetheless, the ONCA has given Parliament a compelling reason to alter the oath, and the ruling has left us with a poorer understanding of the Crown in Canada.
Why are new citizens asked to swear an oath to the Queen? The answer is complex.
Our constitution doesn’t have a concept of the state, per se. Instead, the Crown is our concept of the state. All sovereign authority in and of Canada (be it legislative, executive or judicial) flows from the Crown, and what we call Canada is understood to be the ”˜body politic‘ of Her Majesty in right of Canada. Moreover, the Crown and Her Majesty in right of Canada are treated as a single entity. So, Canada is the body politic of the Crown and Her Majesty in right of Canada is the fount of all sovereign authority in and of Canada. In addition, Her Majesty in right of Canada is a fictional legal person. This means that the state in Canada is a legal person, which explains how the Canadian state holds property, contracts, employs civil servants, and commissions military officers.
Although Her Majesty in right of Canada is a fictional legal person, she is also a real physical person, the woman we know as Queen Elizabeth II. The physical Queen Elizabeth II makes manifest the fictional Her Majesty. Put differently, Queen Elizabeth II embodies and gives a physical form to the legal entity that is Her Majesty in right of Canada. Together the physical Queen and fictional Her Majesty form a single corporation with two capacities, one natural, the other legal.
Now, all this helps us understand the oath. The Crown is our concept of the state and fount of sovereign authority. Her Majesty in right of Canada is synonymous with the Crown. Queen Elizabeth II embodies Her Majesty in right of Canada. Hence, Queen Elizabeth II is the physical manifestation of the Canadian state and the sovereign authority in and of Canada. When new citizens swear an oath to the Queen, they are being asked to swear to the state and the source of all legitimate legal and governing authority. They are, in effect, being asked to swear loyalty to what ”˜Canada’ actually is in law and under our constitution.
The appellants challenged the oath on the grounds that the Queen represented something different to them. For instance, according to Simone Topey, who is a Rastrafarian, the Queen represents the head of Babylon. Swearing an oath to her would therefore be contrary to Topey’s religious convictions. In ruling against the appellants, the ONCA ruled that they had misunderstood the oath: they were being asked to swear to the Queen as understood in the context of the constitution and Canadian law. Whatever their personal interpretation of who or what the Queen is, the court found that when it comes to swearing the oath, it’s the definition of the Queen in Canadian law that matters.
This is why the case was ultimately about the legitimacy of the Crown in the constitution. Had the courts found that the appellants’ individual interpretation of the oath should trump the constitutional sense, the line between personal views and legal fact would have been blurred. The Crown would no longer have any definitive meaning; instead of personifying the Canadian state, the Queen could plausibly be whatever anyone believes she might be. Suffice it to say, we would not accept this with respect to other public institutions. Individuals are not free to interpret parliamentary statutes in any way they want, for example. Similarly, we expect court rulings to be respected, notwithstanding our personal disagreements with their reasoning. It’s unclear why we shouldn’t afford the Crown the same standing, except for the fact that the monarchy is contentious. If the case had gone the other way, the Crown would arguably have become a lesser part of the constitution as compared to Parliament and the judiciary, one that can be disregarded if it clashes with our personal beliefs.
Thankfully, that’s not what happened. The ONCA rightly found that people can believe and say whatever they want about the Queen and the monarchy, but that when comes time to become a Canadian citizen, they can be required to swear loyalty to what the Crown means in Canadian law. To become a Canadian, new citizens must swear an oath to what Canadians have chosen to retain as their concept of the state, the Queen. So far as we can tell, the SCC agrees "at least enough that it wasn’t willing to reconsider the merits of the case.
However, the ONCA ruling was not all bad news for those who oppose the oath. When describing what the Queen refers to, the court focused on the fictional legal personality alone. The court implied that the oath doesn’t refer to the Queen in her natural capacity. As well, the court noted that ”œthe oath is a symbolic commitment to be governed as a democratic constitutional monarchy unless and until democratically changed.” This suggests two things. First, that there is no compelling reason for Parliament to retain a reference to the Queen in her natural capacity in the oath. The oath could be rewritten to make reference to more anodyne terms, such as the Crown, Her Majesty in right of Canada, or simply Canada (as Australia has done) without taking away from the symbolism. Second, by stressing that the Queen is a mere symbol, the ONCA arguably gives Parliament a reason to rewrite the oath. Simply put, why retain an oath that offends certain new citizens if it’s merely symbolic?
Indeed, I’d argue that the ONCA went a bit too far in scrubbing the Queen of any substance. The logic behind swearing an oath to Queen Elizabeth II is that the Queen, Her Majesty in right of Canada, and the Crown are bound together in law. Denying that new citizens are being asked to swear an oath to the Queen in her natural capacity misrepresents the nature of the Crown. New citizens are being asked to swear to the Queen in both her natural capacity and her legal capacity, since her natural and legal capacities are intertwined. That’s the best way to explain why an oath to Queen Elizabeth II is an oath to Canada or to the state. Otherwise, we’re stuck with the strategy that the ONCA employed, stating that a plain reading of the oath is incorrect, despite the fact that Canada’s citizenship guide emphasizes a plain reading.
A literal reading of the oath isn’t wrong. It actually tells us more about our constitution than the symbolic reading the ONCA offered. But defending a literal reading of the oath requires accepting that Canada is a constitutional monarchy in more than a symbolic sense. Since the courts may not be willing or able to do that anymore, those who challenged the oath may have won after all.