INTRODUCTION
In August 2014 the Court of Appeal for Ontario handed down two decisions concerned with the constitutional status of the Crown in Canada in relation to freedom of conscience and religion pursuant to the Canadian Charter of Rights and Freedoms.Footnote 1 In one decision, Teskey v Canada (Attorney General),Footnote 2 the court denied that the UK legislative changes to the succession rulesFootnote 3 to which Canada agreedFootnote 4 constituted an infringement of the religious equality rights of a Canadian Roman Catholic pursuant to section 15 (the equality provision) of the Charter. In the other decision, McAteer v Canada (Attorney General) Footnote 5 the court denied that the statutory requirement that a person take an oath to Her Majesty as Queen of Canada to obtain Canadian citizenship constituted an infringement of the freedoms of conscience, religion and expression provisions in sections 2(a) and 2(b) of the Charter of persons who regarded her as an ‘Anglican Queen’.Footnote 6
Neither decision was without precedent as there have been several litigants over the past 25 years who have repeatedly asked the courts, in various ways, to rid Canada of the monarchy by invoking the freedom of religion and equality provisions in the Charter as the mechanism for so doing. The courts have consistently rebuffed these litigants and the significance of the two most recent cases lies in their careful and thoughtful articulation of the nature of the monarchy in Canada and of the irrelevance of Charter arguments based on religion to the status of the Crown in the Canadian Constitution. Review of both Teskey and McAteer reveals constitutional arguments of relevance not only in Canada but also in the UK, as this matter is likely to be litigated again (if not increasingly) in the future in both jurisdictions, if for different reasons: in Canada because of the small republican faction in the country and in England by those anxious to disestablish the Church of England on religious equality grounds.
This comment will review and assess these decisions in the belief that they offer compelling constitutional reasons to affirm the constitutional status of the Queen both as Queen of Canada and as Supreme Governor of the Church of England.
THE CASES
Teskey is a Canadian Roman Catholic who objected to the agreement of the Government of Canada to the Commonwealth consensus about the recent changes to the royal succession rules. He applied for declarations that the Canada Act 1982 prevented Canada from consenting to the UK legislation changing the rules of succession and that all legislative provisions prohibiting Roman Catholics from ascending to the throne of Canada are of no force and effect. In the Ontario Superior Court of Justice, the merit of these positions was not argued; rather the two issues were their justiciability and whether Teskey had standing. Hackland RSJ found that the rules of succession were not justiciable or subject to Charter review and that the complainant lacked standing to sue.Footnote 7
The issue of justiciability was resolved by application of principles set out in an earlier challenge to the provision of the Act of Settlement 1701 prohibiting Roman Catholics from ascending the throne, O'Donohue v Canada.Footnote 8 In that case, Rouleau J confirmed that the Act of Settlement 1701 was part of the law of Canada and that the preamble to the Constitution Act 1867 established that Canada was a constitutional monarchy ‘with a Constitution similar in Principle to that of the United Kingdom’. As such, Canada shared a monarch with the UK and the other Commonwealth countries as ‘at the root of our constitutional structure’.Footnote 9 Rouleau J further confirmed that rules of succession are essential to a monarchy and ‘must be shared and in symmetry with those of the United Kingdom and other Commonwealth countries’.Footnote 10 A court cannot change a fundamental constitutional structure.Footnote 11 Rather, changes to the rules of succession could only occur pursuant to the preamble to the Statute of Westminster 1931, requiring the assent of all the Parliaments of the Commonwealth.Footnote 12 In Teskey, Hackland RSJ adopted these principles and added that the rules of succession are also not subject to Charter scrutiny and not justiciable because they are beyond the jurisdiction of a court.Footnote 13
In relation to Teskey's standing to sue, Hackland RSJ characterised Teskey's argument as purely hypothetical because he had no connection to the Royal Family. He thought that the appropriate time for a court to consider the question would be if a Canadian Roman Catholic in the line of succession to the throne was passed over on religious grounds. In short, Teskey was neither directly affected by the legislation nor did he have a genuine interest in its validity.Footnote 14
The Ontario Court of Appeal expressly considered the substantive issue to be whether the prohibition on a Roman Catholic monarch was discriminatory and an infringement of section 15(1) of the Charter, which provides: ‘Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination … based on religion.’ However, the court briefly dismissed the appeal and adopted the reasons given by the trial judge that there was no justiciable issue because the rules of succession are a part of the fabric of the Constitution and cannot be trumped by the Charter, and because Teskey had no personal interest in the matter, lacking standing to sue.Footnote 15
McAteer presented more complex facts for consideration. The three applicants in this case sought to take the citizenship oath without the statutory requirement of pledging allegiance to the Queen. The applicants included an Irish immigrant who wished to be true to his family's republican heritage, a Jamaican immigrant who as a Rastafarian regarded the Queen as Queen of Babylon and an Israeli immigrant who regarded the oath as repulsive because it implies that some people are privileged, as a remnant from the past and as a violation of his belief in the equality of all people. The original applicant, who had died, had a long litigation history of refusing to swear allegiance to the Crown on equality grounds, both to become a member of the Bar of Ontario and to become a Canadian citizen:Footnote 16 he was an immigrant from Trinidad and Tobago. The applicants had satisfied all of the other requirements to become citizens. They argued that the requirement violated sections 2(a), 2(b) and 15(1) of the Charter, namely freedom of religion, freedom of expression and their equality right.
In the Ontario Superior Court of Justice, Morgan J found that there was no violation of section 2(a) or section 15(1), but that there was a violation of section 2(b), freedom of expression, which was saved by section 1: that is, the violation was demonstrably justifiable in a free and democratic society. In reaching these conclusions, the trial judge reviewed the legislative history of citizenship oathsFootnote 17 and their historical precedents in the oaths required of new subjects of the Crown since the Quebec Act 1774.Footnote 18 He identified the Crown as the repository of sovereignty, albeit now exercised within constitutional limitations, and the Queen as Queen of Canada and head of state in Canada.Footnote 19 He characterised the applicants' position that the oath was to a person as a misapprehension and the oath as an expression of fidelity to a head of state who symbolised the rule of law, equality and freedom to dissent. The oath was a vow of commitment to national values and as such constitutionally valid.Footnote 20 The oath did not prohibit public debate about the monarchy, but rather expressed loyalty to a constitutional settlement which permitted all viewpoints in a heritage of debate and dissent.Footnote 21
The freedom of religion complaint of the applicants was not clearly set out but appeared to hinge on the fact that they were not Anglicans and that there are religious limitations on who can become monarch. Nevertheless, the trial judge characterised the purpose of the oath as ‘the strictly secular one of articulating a commitment to the identity and values of the country’.Footnote 22 As such, it is a universal requirement applied to all applicants for citizenship without regard to religion, although it may be perceived detrimentally by some applicants.Footnote 23 The oath represents a commitment to equality and the rule of law rather than inequality and arbitrary authority, and it references a symbol of national values, the Crown, thereby enriching society as a whole.Footnote 24 The trial judge rejected re-interpreting the oath to the Queen in accordance with the subjective religious beliefs of the applicants.Footnote 25
In addition to rejecting the section 2(a) claim, the trial judge also rejected the section 15(1) claim, which had been framed as one of discrimination both on the basis of political belief (that is, the republicanism of one of the applicants) and on the basis of religious discrimination. The rejection was again on the ground that the citizenship oath is essentially a neutral oath which cannot be re-interpreted in accordance with the subjective views of everyone who objects to it.Footnote 26 The court further rejected a related argument based on the fact that citizens born in Canada do not take an oath, that the oath requirement therefore discriminated against the applicants on the basis of their non-citizenship. Morgan J observed that this argument constituted an attack on the concept of citizenship itself and dismissed it as such a challenge; Parliament can determine admission requirements for citizenship such as the oath without being subject to an equality rights review.Footnote 27
The Ontario Court of Appeal built upon the foundation set by the trial judge. Speaking for a unanimous court, Weiler JA first addressed the issue of interpretation of the oath and adopted a purposive rather than plain-meaning, literal approach. This permitted the court to recognise the history and context of the oath, which the court reviewed in some detail,Footnote 28 drawing the conclusion that the oath was to a symbol of the Canadian form of government, to the ‘Queen of Canada’ and not to the Queen as a person.Footnote 29 Such an interpretation produced harmony with other legislative contexts where oaths of loyalty to the Crown are also required, such as to become a member of the House of Commons or Senate.Footnote 30 To the argument that taking the oath violated the applicants' freedom of expression pursuant to section 2(b) of the Charter, the court concluded that the purpose of the oath was not to compel expression but to inquire into a would-be citizen's commitment to the Canadian form of government. While there is an effect on their freedom of expression, this did not justify overturning the requirement to take the oath for five reasons:
i. The applicants continue to be able to express their views about a republican government;
ii. The effect on their expression flows from their misunderstanding of the nature of the oath to the Queen of Canada;
iii. The remedy sought does not resolve their real concern that the Queen is the head of state in Canada;
iv. Their argument ignores the role of the Queen as part of Canada's cultural heritage; and
v. The reference to the Queen is a symbolic reference to the fact that Canada is a democratic constitutional monarchy which promotes the values in the Charter. Thus, there is no section 2(b) violation and, if there were, it would be saved by section 1.Footnote 31
To the argument that taking the oath violated the applicants' freedom of conscience and religion pursuant to section 2(a) of the Charter because the constitutional requirement that the Queen be Anglican makes the oath supportive of one religion to the exclusion of all others, the court responded that the oath was secular as an oath to the Canadian form of government of which the Queen is a symbol and not to the Queen as an individual. The Court of Appeal adopted the analysis of the trial judge,Footnote 32 in essence, that the oath exemplifies the very principle of freedom of religion because it is to a form of government in which the Charter values are enshrined.Footnote 33 The same response was also given to a distinctive freedom of conscience claim as well.Footnote 34
To the argument that taking the oath violated the applicants' equality rights pursuant to section 15 of the Charter because it amounted to discrimination on the basis of political belief, the court again adopted the position of the trial judge to find that there was no section 15 violation. There was no objective evidence of political belief discriminationFootnote 35 or of discrimination based on non-citizenship since Parliament could determine the admission criteria for citizenship without being subject to an equality rights analysis on the grounds of the applicants' citizenship status. Section 15(1) could not be used to undermine the rights of others.Footnote 36 In any case, and once again, the oath was to the Queen as a symbol of the Canadian form of government, not to Her Majesty as an individual, and to a form of government which enshrined the equality rights of all regardless of political or religious beliefs.Footnote 37 The applicants' case was dismissed.
CONCLUSION
Teskey and McAteer are the simplest of cases. Yet the constitutional principles that they express are of the utmost importance to defining the monarchy and parliamentary democracy, notwithstanding how often they are repeated in first-year constitutional law classes. The significance of these cases is that these principles are now expressly a part of the common law after the advent of the Charter and similar bills of rights, and, as such, protect the form of government in Canada and other Commonwealth countries founded on similar principles for the foreseeable future.
COMMENT
Although the principles stated in these cases about the status of the Crown and its relationship to freedom of religion are not novel or even interesting to constitutional lawyers, the fact that a senior Commonwealth appellate court has now enshrined them in the case law is. They stand as barriers to future litigants who may wish to use the courts to overturn constitutional structures of many centuries' standing and redirects them to the political realm, where they properly belong. Taking Teskey and McAteer together, it is possible to state those principles as follows.
i. The proper approach to the interpretation of constitutional legislation is a purposive approach in light of the context and history of the matter under consideration and not a subjective approach in light of the subjective views of a complainant;
ii. The constitutional status of the Crown as the apex of Anglo-Canadian constitutional democracy is not justiciable in the courts, but rather falls within the jurisdiction of the legislative branch, namely Parliament;
iii. In Canada, the constitutional status of the Crown is not subject to review pursuant to the Charter, an entrenched constitutional document;
iv. In Canada, the Crown is both an inherited and constitutionally entrenched part of the constitutional structure by virtue of the reception of the Act of Settlement 1701 and the Constitution Act 1867;
v. Since the Crown in Canada is the same Crown as in the UK and other Commonwealth countries where the Queen is Queen of that country, its constitutional status cannot be changed except in accordance with the Statute of Westminster 1931, which is tantamount to an international treaty, requiring the assent of the Parliament of all these countries to all proposed changes;
vi. Even if individual litigants could challenge the constitutional status of the Crown in the courts, they would only enjoy standing if they are directly affected personally by some aspect of the monarchy: for example, exclusion from the succession on religious grounds;
vii. Oaths of allegiance to the Crown, such as citizenship oaths, or oaths to become an MP or Senator or a member of the Bar, are to the Crown, the Queen, as Queen of Canada, a symbol of the form of government in Canada, and to the values enshrined in that form of government, including those codified in the Charter. The oath is to uphold the national values of Canada;
viii. The values enshrined in the Canadian form of government permit public debate about the status of the Crown in Canada, Canadian constitutional monarchy and its possible reform;
ix. An oath to the Crown does not infringe on the freedoms of conscience, religion or expression because it is an oath to uphold those values as constitutionally entrenched, including the freedom to be of a different religion from the Queen as a person and to advocate publicly for constitutional reform;
x. An oath to the Crown does not infringe on equality rights in relation to political beliefs or religion because it is not only an oath to uphold equality rights but also an oath to the Queen as Queen of Canada in a constitutional sense, and not in a personal, religious sense.
These principles implicitly contain several broader conclusions. First, the Crown has been completely insulated from challenge except through formal constitutional processes. It is not subject to Charter challenge, judicial review or the subjective complaints of individual litigants. The constitutional status of the Crown may only be changed by the legislative branch acting in accordance with accepted constitutional customs and legislation, whether of historical or recent origin, whether the Act of Settlement 1701 or the Charter of 1982.Footnote 38 This should put an end to the intermittent stream of litigation which has occurred in Canada since the early 1990s of challenges to the constitutional status of the Crown, especially the exclusion of Roman Catholics from the succession and the throne.
Secondly, the cases indirectly clarify the position for Canada of how the Queen as Supreme Governor of the Church of England should be understood in Canada: that is, as most constitutional lawyers have assumed, the monarch's status in relation to the Church of England is a complete irrelevancy in Canadian constitutional law. By characterising the Queen as the symbol of the Canadian state, which has been a secular state from the start, the courts have confirmed that her role as apex of both state and established church in England is not duplicated in Canada, where the Crown is the head of state only. The preamble to the Constitution Act 1867 stated that the Canadian Constitution is to be similar in principle to that of the UK, not identical in all aspects.
Thus, thirdly, the Crown is free to be exclusively the symbol of the Canadian state and of the national values represented by the state, including those enshrined in the Charter – of freedom of conscience, religion and expression and of equality. This third implication is also applicable in the UK insofar as the role of the Crown as head of the Church of England has occasioned concerns about freedom of religion and equality under the law for those who are not members of the Church of England. These cases judicially confirm longer-standing constitutional understandings that the secular and religious roles of the Crown can be conceptually separated without endangering either role in its respective sphere. Indeed, by emphasising the role of the Crown as symbolising the values of the state, the position of the Crown may well be strengthened, not only within the state but also within the Church of England because each role is both clarified constitutionally and independent of the other.