There’s a good deal to like about the Ontario Court of Appeal’s ruling on the citizenship oath. Judge Weiler upheld Judge Morgan’s finding that the oath is taken to the Queen as a symbol of sovereign authority in Canada. In addition, the judgement found that the meaning of the “Queen of Canada” has evolved to represent Canadian democracy and the institutions of Canadian government. When new citizens swear their oath to the Queen of Canada, therefore, they are stating that they will respect Canada’s constituted authority and recognize the legitimacy of Canada’s system of government.
However, I do think that Judge Weiler went a bit too far. In insisting that the Queen of Canada is a mere symbol of sovereign authority, Weiler seems to imply that the Crown is a representation of Canada’s constituted authority rather than its repository. Stated differently, one gets the sense that the Crown and the Queen are being interpreted as covers for a more fundamental authority that belongs elsewhere. I am probably being unfair here, but I would have preferred to see a clearer statement that the Crown is the state and that the Queen is the legal personality of the state and the executive, not just symbols of the state and the executive. The distinction may appear trifling, but I’d argue that there’s an important distinction between the Crown and Queen as the state and the sovereign authority versus the Crown and Queen as symbols of the state and sovereign authority.
Monarchists and royalists would do well to think twice before celebrating the ruling, too. In stating that the oath is to the Queen of Canada as a symbol of government and not to Queen Elizabeth II as a natural person, both Weiler and Morgan are implying that the office of the Queen and the holder of that office, Queen Elizabeth II, can be disaggregated. Now, it would be interesting to see if they believe that this is true in law, which I doubt, but if they did, they’d effectively be saying that the Canadian Crown and the Queen of Canada can be divorced from the monarch and the royal family. Once one goes down that road, it’s not hard to imagine scenarios where the Canadian Crown and the Queen of Canada can be said to exist independently of the monarch that personifies them. And if we accept that, then it’s not a stretch to think of an interpretation of the Queen of Canada that allows the office to exist without an office-holder, or with someone other than those in the British line of succession as the holder of that office. In fact, it might even be possible to argue that the Governor General could hold the office of the Queen, as I’ll be examining in a forthcoming book chapter.
So why is this bad news for monarchist and royalists? Because the ruling could be read to mean that the Queen of Canada is a mere legal entity, one that happens to be linked to the British monarch but not necessarily so. (Interestingly, Weiler also seems to be saying that while the Queen of Canada is evidently Canadian, Queen Elizabeth II is British, which is why the oath shouldn’t be read literally. I’ve argued in favour of this before as well.) Put bluntly, the ruling can be read as a step toward the hollowing, or at least a de-royalizing, of the Canadian Crown. Weiler cites David E. Smith regarding the idea that the Canadian Crown and the monarchy are growing apart.
The finding that the Queen of Canada and Queen Elizabeth II are not necessarily fused as part of the oath, moreover, fuels frustrations with Canada’s citizenship guide. The guide’s description of the oath and the role of the Queen in Canada arguably relies on the notion that the office of the Queen and the Queen as a natural person are synonymous. Weiler and Morgan, on the other hand, are saying that, for the purposes of taking the oath anyway, that’s not the case. At the very least, this suggests that the citizenship guide should be tweaked.
Finally, I admit that the ruling helps the government’s case on the constitutionality of the Succession to the Throne Act, 2013. A few defenders of the Act have argued that the office of the Queen and the Queen as a natural person could be treated separately, despite the argument that they are linked in law owing to the Queen being a corporation sole. The citizenship oath ruling suggests that my interlocutors may be correct: the courts are willing to treat the office and the office-holder as separate. If this is the case, then it becomes far easier to argue that changes to the royal succession do not fall under the constitutional amending formula in section 41(a), since that provision deals specifically with the “office of the Queen.” Likewise, it becomes simpler to argue that matters of royal succession are solely a question of British law, since they might be said to only affect the office-holder as a natural person. I have misgivings about all of this –although truth be told I’ve been more than a little inconsistent on this question– but the oath ruling does suggest that the courts are open to the idea.