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.