I have just come across an excellent illustration of the complex ― I am tempted to say schizophrenic ― relationship between our constitutional law and the monarchy, which is at the heart of the litigation about the constitutionality of the reference to thee Queen in the Canadian citizenship oath. On the one hand, as Justice Morgan explains in his decision in McAteer v. Canada (Attorney General), 2013 ONSC 5895 holding the oath constitutional (which I summarized here), and as Philippe Lagassé further explains, the Queen symbolizes the institution of the monarchy, which, in turn, symbolizes Canada’s constitution ― including its values of freedom, equality, and the Rule of Law. On the other hand, for the applicants in McAteer, and for many other Canadians, the Queen is primarily the kindly old lady whose portraits the federal government is obsessed with hanging all over the place; and this, naturally, raises questions about why exactly this particular old lady, kindly though she is, should be so important to our citizenship and our constitution.
So here is the wonderful illustration of this dichotomy that I wanted to share with you. It comes from, of all places, C.S. Forester’s Hornblower and the Atropos (for those who do not know, one of a long series of novels about a naval officer, Horatio Hornblower, set during the Napoleonic wars). After having been presented to His Majesty George III, Captain Hornblower reflects on the difference between his own feelings about this kindly old gentleman on a throne, and those of his wife:
Hornblower himself fought for his country; it might be better said that he fought for the ideals of liberty and decency against the unprincipled tyrant who ruled across the Channel; the hackneyed phrase “for King and Country” hardly expressed his feelings at all. If he was ready to lay down his life for his King that really had no reference to the kindly pop-eyed old gentleman with whom he had been speaking this morning; it meant that he was ready to die for the system of liberty and order that the old gentleman represented. But to Maria the King was representative of something other than liberty and order; he had received the blessing of the Church; he was somebody to be spoken about with awe.
Now, I doubt that Stephen Harper and the members of his government, much less other Canadians, and least of all the applicants in McAteer, attach a great significance to the monarch’s anointment. However, what they share with Maria Hornblower is that they think of her first and foremost as an actual human being ― not as a legal entity or a constitutional symbol.
This conception, Justice Morgan and prof. Lagassé tell us, is not legally correct. It is, in my view, not correct as a matter of political values ― my own monarchism is like Hornblower’s. But as I have argued in my comment on the McAteer decision, the real issue in considering the constitutionality of the citizenship oath is whether it should matter at all which legal and political conception of the Queen is correct ― whether it is reasonable or fair “to expect laypersons to understand the subtleties of Crown law which, as prof. Lagassé notes, seem beyond the understanding even of some judges.”
What the Hornblower passage tells us is that the views of applicants in McAteer are not just a product of a few hypertrophied consciences, as Justice Morgan seems to suggest. They belong to a very old current of thought, albeit now inflected by very different values than those which originally shaped it. (These egalitarian values, indeed, are closer to those of the rather anachronistic Hornblower than of his wife.) And, judging by its portrait fixation, the current government is ill-positioned to argue that these views are not entitled to concern and respect.
Double Aspect 