The Queen heads back to court

The Queen is facing two new legal challenges in Canada.

First, the constitutionality of the Queen’s appointment of Mary Simon as Governor General is being challenged because the vice-regal representative isn’t fluent in French. Her appointment could be held to violate section 20 of the Charter, as a result.

Second, an oath to the Queen required by the Law Society to Alberta to practice law is being challenged on the grounds that it violates a would be lawyer’s religious freedom.

Normally, I would say that neither of these cases stand a chance. The Queen’s appointment of the Governor General would normally be understood to be a discretionary prerogative of the monarch and, in the past, it would have been unlikely to have been considered justiciable or subject to review for Charter compliance. Likewise, oaths to Queen have been challenged a number of times in Canadian courts and these challenges have all failed.

Lately, though, it’s hard to know where the courts are going to land on Crown questions. The appointment of a unilingual Lieutenant Governor in New Brunswick was found to violate by Charter’s official languages provisions for New Brunswick. A recent BC ruling on that province’s fixed-date election law was also quite unorthodox, arguing that the Crown’s prerogative to dissolve the legislature was not a constitutional power belonging to the office of the Lieutenant Governor, but is now provided by statute.

In a forthcoming book chapter in a volume edited by Kate Puddister and Emmett Macfarlane, Canadian courts have tended to gravitate toward the most political expedient answer when the the constitutionality of the Queen or her powers are in question.

These days, it’s hard to know what courts will find or how they’ll get there. If someone were to ask me know I think the result of these new challenges will be, all I can answer is  “who knows?”

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