Judicial decisions threaten to overturn the independence of the Canadian monarchy

Queen Elizabeth II is Canada’s longest reigning post-Conquest monarch. She surpassed Queen Victoria’s tenure on September 9, 2015. Owing to their longevity, a woman has been sovereign of Canada for the majority of its post-Confederation history. Moreover, next to George III, whose Royal Proclamation of 1763 still structures the Crown-First Nations relationship, these two women occupied the throne during the most important legal developments of the Canadian state.

Victoria reigned when the Canadian colonies won responsible government. She granted royal assent to the British North America Act, 1867, which established the confederated Dominion of Canada. But self-government and union did not mean autonomy or independence. Victoria wore an imperial crown. Her personage reminded Canadians that they were part of the British Empire. The idea of a distinct Canadian Crown or Queen of Canada did not apply during her reign. Indeed, it would have been a fringe notion at the time.

Elizabeth II was the first monarch to be styled and titled the Queen of Canada. When Louis St-Laurent introduced the title of Queen of Canada in 1953, he told the House of Commons that, in spite of the new designation, the Queen of Canada was not a separate office from the Queen of the United Kingdom. Over the next 30 years, however, the Canadian Crown developed a legal status all its own. On the day she signed the proclamation of the Constitution Act, 1982 on Parliament Hill, Elizabeth II did so as the holder of a uniquely Canadian office, as recognized by a ruling of an English court the year before. In the Alberta Indians case, Lord Justice May of the English Court of Appeal found: “In matters of law and government the Queen of the United Kingdom is entirely independent and distinct from the Queen of Canada.” Even before the British Parliament legislated Canadian independence, a distinct Queen had made Canada a separate state.

The monarchy has continued to evolve since Canada patriated its constitution. Interestingly, though, the trajectory of this evolution suggests that Elizabeth II may be the first and last genuine Queen of Canada.

On March 27, 2013, royal assent was granted to the Succession to the Throne Act, 2013. The statute expresses Canada’s support of alterations to the British law of royal succession, notably the ending of male primogeniture. In principle, this should mean that there is a greater likelihood that Canada will again have a queen in the future. However, soon after it became law, the royal succession act was challenged in the courts by two Université Laval law professors, with the Quebec government as an intervenor. The professors argue that any change to the rules of succession for Canada requires an alteration of Canadian law, not simply an acceptance of changes to British law. They cite Ottawa’s insistence that Canadian law be amended during the abdication of Edward VIII in 1936 as the key precedent behind this interpretation. Moreover, they contend that changes to the rules of royal succession affect the office of the Queen. Under paragraph 41(a) of the Constitution Act, 1982, this office can be altered only by a unanimous constitutional amendment. The agreement of the House of Commons, the Senate and all provincial legislatures would be needed to update the law of royal succession in Canada. Absent such an amendment, the rules of royal succession remain unaltered for Canada, meaning that male primogeniture is still the law here. Consequently, the rules of royal succession would apply differently in Canada and the United Kingdom, with the Canadian law favouring male heirs and the British one treating the sexes neutrally. Considering that the next three heirs are already male, this would further diminish the chances of having another woman ascend to the Canadian throne.

In defending the Succession to the Throne Act, 2013, the federal government has argued that the preamble to the Constitution Act, 1867 provides that Canada and the United Kingdom share the same monarch. The preamble provides that Canada be united under the “Crown of the United Kingdom of Great Britain and Ireland,” ensuring that whoever is monarch in the United Kingdom is automatically the sovereign in Canada. As per the preamble to the Statute of Westminster, 1931, furthermore, the Canadian Parliament’s only role in matters of royal succession is to assent to changes made by the British Parliament. No Canadian law or constitutional amendment is required to alter the rules of succession for Canada, since royal succession is not a matter of Canadian law.

Given that the Crown and the Queen are legally synonymous, the federal government’s position holds that St-Laurent was right all along: the Queen of Canada is not a separate office from the Queen of the United Kingdom. If the courts accept this reasoning, it will reverse the decades-long progression toward a legally distinct Canadian sovereign. The Queen of Canada will revert to being the British queen acting for Canada, rather than a formally separate and distinct office. Under this understanding of the monarchy, it would no longer be incorrect to say that the Queen of the United Kingdom is Canada’s head of state.

Another recent court challenge has further undermined Elizabeth II’s standing as the Queen of Canada. In 2013 the constitutionality of Canada’s citizenship oath was challenged in Ontario Superior Court. The appellants argued that the requirement to swear “true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada,” violates their rights to free expression, freedom of religion and equality found in the Charter of Rights and Freedoms. Justice Edward Morgan found that the oath did limit the appellants’ freedom of expression, but that this infringement was justified under section 1 of the Charter. Specifically, Morgan noted that while the oath was compelled speech, it was reasonable for Parliament to require new citizens to swear allegiance to Canada’s head of state. “There is no doubt,” Morgan found, “that Her Majesty the Queen is Queen of Canada, the embodiment of the Crown in Canada, and the head of state.” The ruling thus solidified Elizabeth II’s status as the Queen of Canada.

On appeal, however, the office was dealt a conceptual blow. In denying that the oath involved any rights violations, Justice Karen Weiler of the Ontario Court of Appeal found that “although the Queen is a person, in swearing allegiance to the Queen of Canada, the would-be citizen is swearing allegiance to a symbol of our form of government. This fact,” Weiler continued, “is reinforced by the oath’s reference to ‘the Queen of Canada,’ instead of ‘the Queen.’ It is not an oath to a foreign sovereign.” According to Weiler, then, the Queen of Canada is merely a symbolic office, one that is not meaningfully connected to the person holding it. The Queen of Canada is a figurative head of state, while Elizabeth II is a foreign sovereign. By this logic, Canada is a Potemkin monarchy; the Queen of Canada is a mere symbol, not an office of significance, and it is unclear whether Elizabeth II holds the title in any meaningful sense.

Elizabeth II’s surpassing of Victoria as the longest-reigning monarch, therefore, coincides with a hollowing out of the Canadian title she was given at her coronation. While the line of royal succession may eventually place another woman on the throne, it will not be by virtue of Canadian law, nor will she occupy a uniquely Canadian office. As with the oath that new citizens will swear to her, she will be Queen of Canada in symbolic terms only.

Or so it will be unless the courts find that the Queen of Canada is a separate and distinct office, and that Canadian law determines which literal person occupies the position. In that case, Elizabeth II will be the first veritable Queen of Canada, but perhaps not the last.

Philippe Lagassé is associate professor of public and international affairs at the University of Ottawa. He is co-editor of The Crown and Parliament (Montreal: Éditions Yvon Blais, 2015).

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