The Citizenship Oath and the Nature of the Crown in Canada

The constitutionality of requiring new Canadian citizens to swear an oath to the Queen was upheld this week. Although I wasn’t surprised by the result, what impressed me was the judge’s knowledge of the Crown. I’ve been reading quite a few rulings related to the monarchy of late and have noticed that many judges have a rudimentary grasp of the concept.  (A good example of the confusion certain judges show regarding the nature of the Crown in Canada is found in this case.) It’s therefore heartening to see a judge who has a clear understanding of the theory and nature of the Crown.

There are a few observations by Judge Morgan regarding the Crown that deserve particular attention, since they are rarely highlighted.

In paragraph 16, Morgan notes that the monarch is the repository of sovereignty and that the “Crown sits at the sovereign apex of the legal and political system.” In making this observation, the judge avoids the tendency to reduce the Sovereign and Crown to the head of state function alone. This shows an appreciation that the Crown is the state and the source of all sovereign authority.

In the two paragraphs that follow, the judge notes that the Crown as the executive power is distinct from the Crown-in-Parliament, i.e. the Crown in its legislative function. And it is further acknowledged that, while the Crown’s ministers now control almost all royal powers, the Sovereign does retain certain personal and reserve powers.

In paragraph 20, the judge correctly states that the Sovereign is an institution of the state, not merely a natural person, and that the Sovereign is the embodiment of the Crown. This becomes particularly important when the judge discusses the applicants’ claim that they should not be forced to swear “personal fidelity” to a monarch. Citing the Roach case, the judge notes that the oath should not be understood as a reference to the Queen as a person “but to the institution of the state that she represents.”

Making what strikes me as a rather direct rebuke of the applicants’ case, the judge goes on to state that “It would seem, however, that the Applicants’ problem is not so much that they take the oath seriously. Rather their problem is that they take it literally.” Put differently, the issue is that the applicants have failed to understand what the Sovereign is, and refers to, in a constitutional context. They believe they are being forced to swear fidelity to a natural person when, in fact, they are being asked to demonstrate loyalty to the Crown as Canadian state, the source of Canada’s laws, and authority behind Canada’s democratic institutions.

This is further reinforced in paragraph 60, when the judge states: “Her Majesty the Queen in Right of Canada (or Her Majesty the Queen in Right of Ontario or the other provinces), as a governing institution, has long been distinguished from Elizabeth R. and her predecessors as individual people.” (For my take on this question, see this post.)

The judge then uses the distinction between the Sovereign as an institution versus Elizabeth R. as a natural person to belie the notion that new citizens are being asked to swear allegiance to a British woman of privilege: “Not only is the Canadian sovereign not foreign, as alleged by the Applicants in identifying the Queen’s British origin, but the sovereign has come to represent the antithesis of status privilege.” Because the Crown is the Canadian state and locus of sovereign authority, “the oath to the Queen is in fact an oath to a domestic institution that represents egalitarian governance and the rule of law.”

Finally, in summing up this part of the ruling, the judge goes to the heart of the debate about the monarchy in Canada:

The normative clash forms the essence of [the applicants’] position is premised on a misunderstanding born of literalism. Once the Queen is understood, in context, as an equality-protecting Canadian institution rather than as an aristocratic English overlord, any impairment of the Applicants’ freedom of expression is minimal. 

Counterintuitive though it may be, in Canada Her Majesty does not refer to the woman who owns Balmoral Castle.

So, what do I hope people take away from this case:

First, references to the Sovereign are not to the Queen as a British woman, but to the Crown as the fount of Canadian sovereign authority. The Sovereign in a legal capacity is not Elizabeth R. as a natural person.

Second, the Sovereign is the fount of executive, legislative, and judicial authority in Canada, and the Crown as the source of this authority must be Canadian if Canada is a sovereign state.

Lastly, those opposed to Canada’s constitutional monarchy do themselves a disservice when they insist on literal readings of references to Her Majesty.

Looking ahead, it will be interesting to see if the judge in the upcoming challenge to the Canada’s 2013 succession act will show the same degree of astuteness and understanding of the nature of the Crown in Canada.

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13 Comments

  1. Thanks for this, Professor,

    Although I understand why you focused where you did in this post, given your interests and expertise, I think there are a few other things worth noting in the judgment that are relevant to the debates over the oath which took place, if you will permit me a rather long response.

    First, Justice Morgan rejected the argument that (my paraphrase) ‘citizenship is a privilege, so if you don’t like it, don’t become a citizen’ (at paras 27-34). In particular, he notes that, for the purposes of the freedom of expression argument,

    “(i)t does not matter that there is no constitutional right to citizenship per seCharter challenges to citizenship criteria or to the citizenship application process do not seek citizenship, they seek an end to a burden imposed on a recognized Charter right. Citizenship cannot, in effect, be a prize that the Act rewards to application who give up a right such as freedom of expression that exists outside the citizenship process.”

    As such, it is “as much of a Charter violation to compel speech by denying a statutory benefit as it is to censor speech by imposing a statutory punishment” (at para 33).

    Second, he did not rule (in the vein of Adler v. Ontario, [1996] 3 SCR 609), that because of the status of the Crown in the Canadian constitutional order, this challenge was an attempt to invalidate one part of the constitution with another, as many have argued (even after the ruling came down). This is presumably because, as some have pointed out, no one was challenging the status of the monarchy in the constitutional order, or any other provision of the constitution, but rather a legislatively imposed oath which is no where to be found in the constitution, and that is not necessitated by it. If Morgan J. had so found, there would have been no violation of 2(b) and no need for a section 1 analysis. (Interestingly, he seems to slip into that reasoning in discussion ss 2(a) & 15, but that’s another matter I will leave aside for now.)

    Third, he rejects, at para 26, the “surprising” argument that the violation is trivial or de minimis, but rather recognized the burden on the applicants expression interests as “real and substantial” (although he, admittedly, gives the constitutional interests a diminished weight at the section 1 stage).

    Fourth, he did in fact find a violation of section 2(b), notwithstanding assurances by many that the challenge was risible. Thus, the real constitutional argument is whether the limitation on that Charter freedom is demonstrably justified in a free and democratic society. This is, of course, a difficult exercise, and one that can go in many directions. It might be worth noting just how deferential the analysis was, with Morgan J. stressing time and again it is not an ‘exact science’, that ‘common sense’ should be relied upon, and that the government’s position required only a ‘reasoned demonstration’. This may be the correct posture, but a reviewing court may think slightly more is warranted in this context.

    There are also other arguments on the other side – particularly at the minimum impairment stage – that are I think compelling. For instance, I will note that Morgan J. acknowledges but does not assess the viability of alternative oaths that would (arguably) achieve exactly the same objective in the exact same measure. Instead, on my reading anyway, he seems content with telling the applicants why they are wrong to think what they think, and therefore misguided to want the freedom to (not) express themselves in a particular way. Respectfully, I do not think that is relevant at this stage, having already found that a Charter violation occurred. We don’t ask, at the minimal impairment stage, whether claimants are in any sense reasonable (much less objectively correct) to want to exercise their freedom in a certain way, but whether there are reasonable alternatives that would be less violative of that freedom, an analysis it could be argued Morgan J. did not undertake. Indeed, he finds that it is not surprising that the applicants “perceive the oath to represent a maximal rather than a minimal impairment of their rights” but that “any impairment of the Applicants’ freedom of expression is minimal” (at paras 67 & 68). This is, I think, not quite the correct question. Rather, the “test at the minimum impairment stage is whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner” (Alberta v. Hutterian Brethren of Wilson Colony , 2009 SCC 37 at para 55). It is difficult to conduct this analysis without even considering the alternative means to determine if they are less drastic, but would still achieve the state objective in a real and substantial manner.

    That is to say that even a very minimal invasion of protected constitutional interests may fail at this stage, if the same objectives can be accomplished without impairing the right or freedom at all. Arguably, Australia has such an oath. Pointing out that the applicants may be mistaken in their assumptions does not detract from their freedom of expression with respect to those assumptions. Indeed, section 2(b) protects demonstrably inaccurate speech (R. v. Zundel, [1992] 2 SCR 731), and it will not suffice at this stage of the analysis to point out that the speech is misguided or unwise, however eloquently. Once a violation of the freedom is established, the question is whether the pressing and substantial legislative goal can be accomplished in a way that does not impinge upon that freedom, not whether the freedom is exercised thoughtfully.

    There are aspects of the ss. 2(a) and 15 analyses that I would like to take issue with – in particular that an alternative oath would somehow give the applicants a “platform from which to strike down the rights” or “undermine the equality and unity” of others (at paras. 90 & 108) – but I think I’ve said enough for now. In short, this may be a victory for the long-suffering Monarchists, but the Judge’s reasons also expressly or impliedly reject most of the arguments that have been floated as to why the challenge is “baseless” or “absurd”. To the extent that Morgan J. accepts the arguments against the challenge, at the section 1 stage, I think those findings can be subject to reasonable disagreement.

  2. Thanks for this great comment, John. I think you are right: the judge gave far more credence to the applicants’ rights claim than many, including myself, predicted. Similarly, as you point out, the judge did not accept the idea that the applicants’ were trying to use the Charter to undermine another aspect of the constitution, the Crown. In light of the points you rightly make, I don’t think we should too easily dismiss the possibility that the Supreme Court of Canada might take a different view, should they accept to review the case.

    It is also quite possible that Morgan J.’s finding that the oath does constitute a rights limitation will compel either the NDP or LPC to propose a change to the oath or an alternative oath for those who would rather not swear to Her Majesty.

    All that said, I would be wary of interpreting this ruling as a moral victory for the applicants. In my view, the judge effectively told the applicants that they fundamentally understood the nature of the oath, owing to the nature of the Crown in Canada. That’s not only a victory for monarchists, but also for those who advocate for a deeper respect and appreciation of our governing institutions.

    1. Professor,

      Thanks for the thoughtful response. And I certainly understand and at times am sympathetic to your preference that such changes should occur through the political process (if at all), for a number of reasons, and that a ruling like this might encourage a debate towards that end.

      I also agree that Morgan J. did us all a service to spell out with some care the place of the Crown in the constitutional order, and exactly why an oath in its present form is an important commitment, but it is perhaps not the commitment the applicants believe it is, or at least not necessarily so. I also found his explication of the concept (e.g. connection to the rule of law), buttressed by history, extremely informative. I think you might have drawn the right judge for this type of case.

      The other issue that I will just note, because it has been nagging me, is if this oath is a violation of 2(b), it seems to me that any oath would be. The fact of compelled expression – regardless of content – is sufficient. While changing this oath may satisfy these applicants, I do not see how the 2(b) analysis changes under another oath (i.e. of the Australian variety), until you get to the section 1 stage. So, unlike with a typical violation of religious freedom (e.g. imagine an oath which included the words “under God”) which can be quite easily cured – i.e. by removing any religious connection (i.e. the term “under God”) – changing this oath only cures the constitutional deficiency with respect to these particular applicants, that is, until someone else doesn’t want to say the alternative oath. Unless the courts are prepared to say that no oath is acceptable, I wonder if the nature of the 2(b) violation here will, almost by necessity, draw the Courts into an analysis of which oath is acceptable based on the content of the oath, at the section 1 stage. And if the content of the oath is understood as Morgan J. understands it, then one could argue it would be no less objectively acceptable or offensive than, say, the Australian oath.

      I am not sure if I am making this point clearly, or if it makes sense, but it might have been what Morgan J. had in mind in explaining in some detail why the applicants were, in his opinion, objectively wrong in their interpretation of the oath. A proper understanding of the nature of the Crown in Canada doesn’t alone change the fact that 2(b) is abridged by forcing someone to swear to it, but coupled with a finding that some oath is acceptable, one might argue (following the understanding put forward by Morgan J., yourself, and others) that this one is not inherently more objectionable than any other oath. As such, and from a legal standpoint, I am not sure it is obvious that requiring the government to adopt an oath that is less impairing of the expressive freedom of these applicants (i.e. that includes content they are comfortable with) is the best way to look at the issue, on the assumption that no single oath will be subjectively acceptable to everyone equally. In other words, maybe the violation is in requiring someone to say an oath at all, and the question is whether an oath is permissible under section 1, instead of giving each present or future applicant a veto over the content of the oath. Perhaps this is what Morgan J. was getting at, and I missed it.

      In any event, it looks like the lawyers intend to appeal, so we can have these same arguments and discussions all over again at that time.

  3. I tend to agree with you on your final point. Presumably, it’s the very act of taking an oath that could be seen as compelled speech. If that’s the case, then this is really a debate about what kind of obligations we can or can’t expect of citizens (if any at all.) To my mind, asking people to swear to the state or a constitution is an acceptable request; it’s a minor form of reciprocity for the benefits and protections provided by the state and law. Putting on my Hobbes hat, I’d even argue that, in the end, citizens are swearing an oath to themselves, as the sovereign authority is fundamentally an a repository of their own individual rights and interests.

  4. Citizenship is a right, acquired citizenship later in life is not. The states have signed numerous treaties to avoid statelessness and people born in a jurisdiction where their parents legally reside usually can get at least that one citizenship (except with a few countries like Latvia and Israel, in exceptional circumstances).

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