There are two legal challenges that could threaten Canada’s status as a constitutional monarchy. Individually, neither challenge is particularly ground-breaking. Even put together, there is not much of a legal threat to the Monarchy, but with support for the Monarchy down to about 28%, these two cases might actually get more people thinking about g-filing this antiquated institution.
First, we have three new Canadians challenging the oath of citizenship. The inherently offensive oath demands that all new citizens swear (or affirm) allegiance to “Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors…”. It doesn’t take much to see how that could offend people’s religious beliefs. It should also be understandable that an Irish immigrant whose family has been oppressed by the Queen and her predecessors wouldn’t be too comfortable with declaring such allegiance.
Other Commonwealth nations have changed their oaths to eliminate a specific reference to the Queen, and there is nothing stopping Canada from doing the same. The oath is mainly symbolic and it would be easy enough to eliminate the offensive wording without changing the spirit of the oath.
Of course, monarchists far and wide are up in arms over this triviality. As Supriya Dwivedi notes:
Defenders of the citizenship oath can generally be categorized into three groups: (1) sincere traditionalists who have a deep respect and admiration for our constitutional monarchy and the Canadian citizenship process; (2) indifferent citizens who are bound by the Crown due to apathy and their love for the status quo; and (3) the overtly xenophobic “if you don’t like the way things are done in this country then go back to yours” type.
Regardless of the merits of the complaint, I can see few legal reasons to uphold the challenge. The Queen is the head of state. It’d be odd to suggest that the very essence of the sovereignty of Canada is essentially unconstitutional. As Ms. Dwivedi notes, this is a matter that should really be addressed at the political level.
The next issue that has arisen is that of succession. As some may recall, Britain “recently” changed its succession laws so that women and Roman Catholics could become monarch. Stephen Harper’s government decided that Canada would merely assent to this change in succession laws. Two Laval University Professors have objected, claiming that there must be a more substantive change to Canadian law in order to change the rules of succession.
Writing in Maclean’s, Philippe Lagasse argues that the monarchist government actually dealt a grievous blow to the notion of a separate Queen of Canada by creating this short-cut to amend the rules of succession:
Heritage Minister James Moore laid out the government’s thinking at a press conference this past Wednesday. According to the minister, succession to the throne is not a matter of Canadian law. Instead, succession is a question of British law alone. Only the British Parliament can set the rules for who ascends to the throne, while the Canadian Parliament’s only authority lies in assenting to the changes. Put differently, the authority to legislate the rules of succession belongs with the British Parliament because the Canadian constitution does not address matters of succession. The legal pretext for this interpretation is the preamble to the 1931 Statute of Westminster, which states that the United Kingdom will obtain the assent of the Dominions when altering succession to, and royal titles and styles of, their shared Crown.
The defense that I have tended to hear from monarchists when someone objects to being ruled by the British crown is that it’s not the British crown, it’s the Canadian crown. However, I do not understand how we can have a separate crown if the rules of succession are dictated by Britain rather than Canada. At his blog, Prof. Lagasse lists a series of questions that should help to define the nature of Canada’s head of state depending on the court’s ruling. (In a separate post, Prof. Lagasse describes the various roles and definitions of the crown, the Queen and the Sovereign… I won’t argue with his interpretation, but it seems to me that the convoluted nature of it all is, in itself, an argument against the institution(s).)
Neither of these cases should be a decisive blow against the monarchy, but we are seeing defenders of monarchy twist and turn as they try to defend the indefensible. The “Queen” isn’t dead, but she might as well be.