N’importe quoi

Les partis d’opposition à l’Assemblée nationale n’aiment pas le lieutenant-gouverneur du Québec. Peut-être pas personnellement, mais la fonction, qui, selon eux, ne devrait pas exister. Et la CAQ pense avoir trouvé une solution au problème que serait l’existence même de cette fonction dans notre ordre constitutionnel (j’expliquerai ci-dessous où exactement la CAQ a fait cette trouvaille) : puisqu’on ne veut pas de lieutenant-gouverneur, eh bien, il suffit de ne pas en nommer un lorsque le détenteur actuel du poste quittera ses fonctions. Or, tout comme l’approche du gouvernement de Stephen Harper (ainsi que du NDP de Thomas Mulcair) au « problème » du Sénat, qui consistait à ne pas nommer de sénateurs, cette « solution » est inconstitutionnelle, en plus d’être pernicieuse.

Il faut dire que non seulement le respect, mais même la connaissance de la constitution canadienne ne semblent pas être le fort de la CAQ. Sa proposition originale (disponible ici, à la p. 12) déclare qu’ «[u]n gouvernement de la Coalition Avenir Québec prônera l’abolition de la fonction de lieutenant-gouverneur. Il laissera en déshérence cette charge jusqu’à ce que […] cette fonction soit définitivement abolie » par un amendement constitutionnel. Or, il n’appartient pas à un gouvernement provincial de « laisser en déshérence » une charge dont le titulaire est nommé par le gouvernement fédéral, en vertu de l’art. 58 de la Loi constitutionnelle de 1867. Quelqu’un à la CAQ semble avoir fini par lire la Constitution, toutefois, puisque ― selon un article du Devoir paru aujourd’hui ― il s’agit désormais de « convaincre Ottawa de ne plus nommer de représentant de la Couronne à Québec ».

Mais il y a plus. Dans l’explication qui accompagne sa proposition, la CAQ prétend citer la Loi constitutionnelle de 1867, plus précisément l’ « article 67 amendé » de celle-ci. Or, si l’article 67 est bien, comme la CAQ l’affirme, la disposition qui permet au gouvernement fédéral de nommer « un administrateur » qui peut exercer les fonctions du lieutenant-gouverneur lorsque celui-ci ne peut le faire, cet article n’a jamais fait l’objet d’un amendement, et le texte cité par la CAQ n’est pas celui qui figure dans la Loi constitutionnelle. La CAQ y va ensuite de l’affirmation suivante:

La «suppléance» de l’administrateur de la province vise en principe à pallier une situation temporaire. Rien n’empêche cependant que cette suppléance se prolonge indéfiniment, en particulier, suivant l’alinéa de l’article 67 amendé de la constitution canadienne, «lorsque le suppléant est une personne expressément nommée à l’avance en cette qualité.» (Statuts révisés du Canada, janv. 1991).

Encore une fois, le texte cité n’est pas celui de l’article 67. En fait, tout ce paragraphe ― et l’idée même de la proposition de la CAQ, y compris le mot « déshérence » ― semblent tout droit tirés d’un texte intitulé « Une solution pragmatique à la fonction de lieutenant-gouverneur », publié à une date incertaine, mais apparemment avant 2012, par Gilles Laporte, un professeur d’histoire au CÉGEP du Vieux-Montréal. La CAQ ne le mentionne pas, ce qui fait drôlement ressembler sa position à du plagiat. (Quant à la source dont M. Laporte a tiré ses opinions constitutionnelles non-orthodoxes, il pourrait s’agir d’une page web du Ministère de la justice fédéral consacrée à la rédaction de textes législatifs en français, où le même langage apparaît. D’où vient-il? Mystère, pour moi… )

Bref, les affirmations de la CAQ ne tiennent pas la route. Supposons, cependant, qu’un hypothétique gouvernement caquiste propose à son homologue fédéral de collaborer à son projet. Que devrait répondre le gouvernement fédéral?

Tout d’abord, que ne pas nommer de lieutenant-gouverneur est tout simplement inconstitutionnel. L’article 58 de la Loi constitutionnelle de 1867 exige qu’il y ait un lieutenant-gouverneur (le texte anglais, seul officiel d’ailleurs, est encore plus clair à cet effet que la version française: « For each Province there shall be an Officer, styled the Lieutenant Governor […] ». Tout comme M. Harper agissait en flagrante violation de la constitution en refusant de nommer des sénateurs, malgré l’exigence claire du texte constitutionnel à cet effet, un gouvernement fédéral enfreindrait la constitution en se laissant convaincre par la proposition de la CAQ.

Par ailleurs, M. Laporte fait, dans son texte, un parallèle révélateur entre sa proposition et la nomination de sénateurs élus dans des élections provinciales. Or, dans le Renvoi relatif à la réforme du Sénat, 2014 CSC 21, [2014] 1 R.C.S. 704, la Cour suprême s’est dite d’avis que la transformation du Sénat en organe élu qui résulterait de la généralisation de cette pratique serait une modification de l’ « architecture » de la constitution, et ne pourrait se faire que par un amendement constitutionnel. De la même façon, l’abolition détournée de la charge du lieutenant-gouverneur, que vise ouvertement la proposition de la CAQ, est un amendement constitutionnel, qui ne pourrait être adopté qu’en suivant la procédure appropriée (en l’occurrence, celle prévue par le paragraphe 41(a) de la Loi constitutionnelle de 1982).

Par ailleurs, le gouvernement fédéral pourrait ajouter que, même sans égard à son inconstitutionnalité, la proposition de la CAQ est une bien mauvaise idée. L’ « administrateur » qui remplace le lieutenant-gouverneur du Québec pendant son absence est un juge de la Cour d’appel. Qu’un juge puisse exercer temporairement des fonctions vice-royales qui ne sont aucunement discrétionnaires ne pose pas de problème. Cependant, toutes les fonctions d’un lieutenant-gouverneur ne sont pas de cette nature. Le représentant de la Reine peut être appelé à exercer un jugement indépendant, notamment lorsqu’il s’agit de décider à qui confier la formation d’un gouvernement dans une situation où aucun parti n’a de majorité à l’Assemblée nationale. Un tel jugement est aussi, bien entendu, susceptible d’être controversé et critiqué sur le plan politique. Placer un juge dans l’obligation de porter un tel jugement, c’est compromettre son indépendance et l’exposer à des critiques n’ayant strictement rien à voir avec sa fonction première.

J’ai déjà écrit que la décision de M. Harper et l’intention de M. Mulcair témoignaient d’une désobéissance flagrante à la constitution et d’un mépris profond pour la primauté du droit. Si j’hésite à qualifier la position de la CAQ de la même manière, c’est uniquement parce que son ignorance de la constitution semble si profonde qu’on ne saurait l’accuser de chercher à y désobéir sciemment. Mais à défaut d’être une forme perverse de désobéissance civile prônée par un parti qui aspire à gouverner le Québec, et donc à y faire respecter la loi et l’ordre, c’est tout simplement du n’importe quoi.

All or Nothing

I want to come back, briefly, to the crazy idea I put forward last weekend, about the Governor General starting to appoint Senators without waiting for Prime Ministerial advice if it becomes clear that such advice is not and will not be forthcoming. Actually, maybe it wasn’t such a crazy idea because, as Aniz Alani pointed out to me, it was already raised, although not advocated, by experts who testified at a Senate committee hearing regarding a bill that had been proposed ― during Stephen Harper’s previous fit of non-appointment pique ― to force the Prime Minister to appoint a Senator within six months of a vacancy arising.

My post provoked an unusual (for me) number of responses on Twitter (and elsewhere). Most of them were to the effect that my idea was not a good one, because if the Governor General thinks that the Prime Minister is acting unconstitutionally, he should simply dismiss him and appoint a different one, who will give him constitutional advice. (I am too lazy to track them down and link to them now, so you’ll have to trust me on this being the consensus, or at least the majority, view.)

My initial reaction, I confess, was surprise. I had raised this possibility in my post, but thought dismissing a Prime Minister (and his cabinet) would be a “dramatic,” an “extreme” solution to a problem which, although serious, is nothing like, say, an attempt by a ministry to cling to office despite losing Parliament’s confidence. Besides, I wonder about the practicability of this solution. If the dismissed ministry commanded a Parliamentary majority, there would likely be no majority ready to support whatever alternative the Governor General could ask to form a cabinet. The only way out would be a dissolution, following which a dismissed ministry could be re-elected (quite possibly on the strength of a populist appeal against the interference of an unelected Governor General in defence of an unelected Senate!), and we would be back to square one.

On further reflection, however, I also see the logic behind my (friendly) critics’ position. The idea is, I think, that it is so important that the Governor General always act on ministerial advice that it would be wrong for him or her to start acting autonomously even if that advice (or lack thereof) is arguably unconstitutional. The solution to the problem of unconstitutional advice is not to ignore it, but to get a different adviser. It is a powerful argument. The conventions of responsible government, which require the Governor General to follow ministerial advice, are arguably the most important rules in our constitution. To weaken them might mean going back 300 years in our constitutional development.

And as a descriptive matter, this “constitutional position” is almost certainly the generally accepted one in Canada. It explains, for instance, Governor General Michaëlle Jean’s actions during the 2008-09 prorogation crisis, when she accepted the Prime Minister’s advice to prorogue Parliament, even though it was transparently intended to stave off (successfully as it turned out) a Parliamentary vote that would have confirmed that the government had lost the confidence of the House of Commons and triggered its resignation.

Still, there is a paradox here, which makes me reluctant to accept that this constitutional position, albeit dominant, is also a normatively desirable one. At the risk of repeating myself, dismissing a ministry which enjoys the confidence of the House of Commons is a radical, spectacular step for a Governor General to take, and no viceroy in his or her right mind will embark on it without hesitation. It is also, obviously a dramatic departure from the principles of responsible government ― a bigger one, it seems to me, than ignoring that ministry’s advice on one specific point. That’s why I’m finding it strange that, in the face of unconstitutional advice a Governor General is entitled to go for the “nuclear option” of dismissal but not for a carefully circumscribed show of defiance. But this contradiction is, admittedly, more apparent than real. In reality, a Governor General will not dismiss a Ministry, except I suppose in the absolutely clearest of cases. For any constitutional transgression that does not obviously warrant dismissal, the lack of any alternative is simply the equivalent of a get-out-of-jail free card for a rogue Prime Minister, which is exactly what happened during the prorogation crisis.

So although I understand why this is the case, I am not at all sure that a rule that vice-regal interventions against a Prime Minister or cabinet who act unconstitutionally must be all-or-nothing propositions is a good thing. It seems, however, to be the generally accepted understanding of the conventions of responsible government in Canada, and I wanted to highlight the fact that my critics were right about that.

Constitutional Defiance

In news which perhaps did not receive the attention it deserved, the federal leader of the opposition, Thomas Mulcair, announced that, if he becomes Prime Minister following the next federal election, he would imitate the current Prime Minister and refuse to appoint any Senators. La Presse quotes him as saying that

[t]he Senate is like a grape that you leave out to dry on the vine. It’s not good any more after that. We’ll leave it out to dry, it will be over, and it won’t be there anymore. [Translation mine]

Mr. Mulcair is, supposedly, “determined to work with all of the provinces on the Senate’s abolition,” and firmly set on never appointing Senators ever. As for Stephen Harper, he has not, to my knowledge, foreclosed the possibility of doing so if he wins the next election, but is also apparently uninterested in filling out the current 16 vacancies in the Senate until then. A Vancouver lawyer, Aniz Alani, has launched a lawsuit, apparently claiming that failure to appoint Senators is an infringement of section 32 of the Constitution Act, 1867, which provides that “[w]hen a Vacancy happens in the Senate … the Governor General shall by Summons to a fit and qualified Person fill the Vacancy.”

The legal merits of this claim, Mr. Alani’s standing to bring it and, most of all, its justiciability all make for very interesting questions, and I might yet return to them. For now though, perhaps as a result of consuming too much alcohol as part of New Year’s celebrations, I want to suggest a different, crazier, remedy. Arguably, at some point, if the Prime Minister fails to advise the Governor General to summon new Senators, the Governor General should just do it himself, without waiting for advice that he knows will not come.

Regardless of the availability of legal remedies for its breach, section 32 of the Constitution Act, 1867 clearly imposes a responsibility on the Governor General, since it uses the imperative “shall” (instead, for example, of the permissive “may”). Constitutional conventions dictate that the Governor General discharges this responsibility, and similar ones (for example for appointing judges) only pursuant to the ministerial advice. As the Supreme Court recently explained in Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704,

constitutional convention requires the Governor General to follow the recommendations of the Prime Minister of Canada when filling Senate vacancies. [50]

Conversely, so long as he has received no recommendation from the Prime Minister, the Governor General may not fill such vacancies. Yet that prohibition arguably presupposes that the Prime Minister will in fact act to advise the Governor General to appoint some “fit and qualified person” to fill the vacant Senate seat. What if the Prime Minister has made it clear that he will not do so?

In the Senate Reform Reference, the Supreme Court recognized that the Senate, disliked though it is by many Canadians, has a number of important functions. It is “a complementary legislative body of ‘sober second thought'” [56], in addition to providing representation for Canadian regions and “various groups that were under-represented in the House of Commons,” notably “ethnic, gender, religious, linguistic, and Aboriginal groups” [16]. It stands to reason that the shorter the Senate is of its full complement, the less effectively it can fulfill these roles.

Still in the Senate Reform Reference, the Court took the position that a course of action that would “weaken the Senate’s role of sober second thought” [60] would amount to a constitutional amendment, even though it did not modify the constitutional text. Arguably, the course of action at issue there, the enactment of (federal and, possibly, provincial) legislation that would set up purportedly “consultative” elections of Senators, would have had a clearer effect than a gradual reduction in the number of Senators. Then again, that effect too would only have been achieved gradually, as elected members would slowly have replaced appointed ones.

In any case, even if the difference might matter from a strictly legal perspective, I do not think that it does from a political one, which is what interests me here. There can be political remedies, as well as ― and even instead of ― legal ones when the government acts in violation of the constitution. Most obviously, of course, the government can be voted out of office. But that’s not the only possibility. As the Supreme Court pointed out in the Patriation Reference, Re: Resolution to amend the Constitution, [1981] 1 S.C.R. 753, if a government refuses to resign after losing a general election, “the Governor General … would be justified in dismissing the ministry and in calling on the opposition to form the government.” (882) This is an extreme case, because the ministry’s behaviour would be “a fundamental breach of convention, one so serious indeed that it could be regarded as tantamount to a coup d’état.” (882) Failure to appoint Senators is surely a less serious matter. (Though consider what happens when the Senate dwindles below its quorum, and no statutes can pass Parliament at all ― something that may conceivably happen under Mr. Mulcair’s approach, if he is unable to goad the provinces into agreeing on abolition before then.)

Short of such a dramatic step, I would like to suggest that, faced with a cabinet and a Prime Minister determined on acting in clear, if perhaps not legally sanctionable, defiance of the constitution, the Governor General may be wise to break the convention that requires him to appoint Senators only on the advice of the Prime Minister. Yes, breaking the convention is also acting in defiance of the constitution, even though this step may not be amenable to a legal remedy. But, unlike the temper tantrum of a Prime Minister who refuses to replenish the Senate simply because he does not like the way this institution operates under the existing constitution or because he does not want to attract attention his record of questionable appointments, it is a constitutional violation intended, and arguably necessary, to prevent another such violation.

Indeed, substantively, it might be a very positive step for the Senate and for Canada. The Governor General would be free from the partisan incentives that have too often prevented Prime Ministers from appointing Senators capable of providing genuine “sober second thought,” and thus might help the Senate fulfill its role as a complementary legislative chamber. Senators appointed not by an elected official but by a person who is himself an appointee would not have the problematic legitimacy to oppose the democratic will of the House of Commons, yet they would be more likely to have the capacity for independent thought which partisan hacks too often lack. They would offer a counterargument, but not a counterweight, to the House of Commons, which I think was exactly what the Senate was originally meant to do.

To be sure, even if it were to bring about a desirable result, a vice-regal assertion of independent power would be troubling and problematic. If I’m not the only one to think that this idea even deserves some thought, that would be strong evidence of something being rotten in the state of our democracy. But I for one do smell rot, when I hear the Prime Minister and the man who would be Prime Minister set out on a course of disregarding both our Parliamentary institutions and our constitution itself not only apparently without questioning the constitutional propriety of such a course, but indeed suggesting that it is the right thing to do.

UPDATE: Philippe Lagassé has pointed out to me that, pursuant to section 4 of the Federal Documents Regulation, a Senator’s commission must be signed by the Registrar ― who also happens to be a cabinet minister (specifically, Industry Minister, as prof. Lagassé explains). So presumably a defiant Governor General couldn’t just act on his own ― the Registrar would not go along. The constitutionality of this regulation, insofar as it interferes with the Governor General’s execution of the powers of his office might be questionable, but there it is. And, of course, in reality, a Prime Minister can always give the Queen a call and have her fire a defiant viceroy. In short, as Paul Wells tweeted, “the Governor General won’t help you.” And yet…

Challenging Succession, Round 2

Yesterday, in Teskey v. Canada (Attorney General), 2014 ONCA 612, the Court of Appeal for Ontario rejected a Charter challenge to the Succession to the Throne Act, 2013, a law that purports to “assent[] to” the changes to the rules of royal succession laid out in a British bill (and agreed to by the heads of government of the Commonwealth). This decision upholds the one issued by the Superior Court of Justice last year, about which I wrote here. In my view, like that decision, that of the Court of Appeal may well reach the correct outcome, although its reasoning is deeply flawed. And to the extent that it is correct, it only strengthens a different challenge to the Succession to the Throne Act.

The appellant, who represented himself (as he had done at first instance), argued that the continued exclusion of Catholics from the line of succession, which the Succession to Throne Act does nothing to address, infringes the equality rights guaranteed by the Charter. But, like the Superior Court, the Court of Appeal concludes that the case

does not raise justiciable issues and that Mr. Teskey lack[s] standing to bring the application. The rules of succession are a part of the fabric of the constitution of Canada and incorporated into it and therefore cannot be trumped or amended by the Charter, and Mr. Teskey does not have any personal interest in the issue raised (other than being a member of the Roman Catholic faith) and does not meet the test for public interest standing.

I agree with the Court on the matter of standing. Even under the relaxed public interest standing test, a claimant’s capacity to develop his argument in a manner that will be helpful to the court is a relevant consideration, and it’s not clear that Mr. Teskey had such a capacity; nor is it clear, as the Court says, what his interest in the issue is.

However, there are several problems with the Court’s reasoning. One is that, assuming that the Succession to the Throne Act is not subject to the Charter because succession rules “are incorporated into [the Constitution] and therefore cannot be trumped” by it, this is not a matter of “justiciability.” As I explain in my post on the decision at first instance,

[j]usticiability is a slippery concept, but it has to do with a court’s ability to answer the sort of question at issue in a case. The question here is the constitutionality of an Act of Parliament ― something the courts deal with all the time. Even if the Charter does not apply to that Act of Parliament, that does not mean that its constitutionality could not be called into question in a judicial proceeding, albeit on a different basis.

An issue that does go to justiciability, at least in a broad sense, is whether the Court can address a constitutional challenge to a statute which has not even been proclaimed into force. I’m not aware of any such case, and I have serious doubts about a court’s power to entertain such a challenge ― but here, the Court of Appeal does not even raise this question.

And then, there is the matter of the grounds for the Court’s assertion that the rules of succession are a part of the Constitution. The Court doesn’t explain why this is so ― yet these rules are certainly not an explicit part of any enactment which s. 52 of the Constitution Act, 1982 lists as being part of the Constitution.

The Court’s assertion is, however, probably correct because, I wrote last year, the “office of the Queen” entrenched by par. 41(a) of the Constitution Act, 1982, “arguably includes the rules on who can come to hold that office from time to time, at least in a case where, like with the monarchy, these rules are, arguably again, its defining characteristic.” Since then, the Supreme Court has held, in L’affaire Nadon, that the “composition” of the Supreme Court (entrenched by a different paragraph of s. 41) includes the eligibility criteria for judges, a conclusion which I think suggests (although probably does not require) that the phrase “the office of the Queen” should also be interpreted to include eligibility criteria.

But if the rules of succession to the throne are indeed “a part of the fabric of the constitution of Canada and incorporated into it and therefore cannot be trumped or amended by the Charter,” it follows that, a fortiori, they cannot be amended by an ordinary act of parliament, such as the Succession to the Throne Act. If they are part of the constitution, they must be changed by a constitutional amendment. If I am right that they are part of the constitution by virtue of par. 41(a) of the Constitution Act, 1982, this amendment requires the unanimous consent of the provinces. I take it that Mr. Teskey did not make this argument, and that the Court could therefore not consider it, but it is at the heart of a challenge launched by a group of constitutional law professors in Québec. Like the Superior Court before it, the Court of Appeal has given that challenge additional ammunition. When it is finally heard ― not before next summer, apparently ― it will become clear that, just like with its Senate reform project, and the appointment of Justice Nadon, the federal government chose to take a shortcut to avoid formal constitutional amendment ― and has ended up violating the constitution.

A Monarchist’s Lament

If you’ve read my bitter vituperations against the decisions of the Ontario courts upholding the constitutionality of the citizenship oath, which requires would-be Canadians to swear “true allegiance to Elizabeth II, Queen of Canada, her heirs and successors,” you might have concluded that I am a flaming republican. But I am, in fact, a monarchist; I believe that Lord Acton was quite right when he described (in his fabulous Lectures on the French Revolution) constitutional monarchy as “the richest and most flexible of political forms.” I oppose the citizenship oath nonetheless and, with respect, think those who are approve of it, including my fellow monarchists (such as Gabriel Grantstein over at Slaw, or Konrad Yakabuski in the Globe and Mail), as well as Justices Morgan and Weiler, miss the point of the challenge to its constitutionality.

Those who defend the oath think that the case it is about the concept of the “Queen” to which the oath refers. They insist that because the Queen symbolizes a  political and constitutional system that honours equality, democracy, the Rule of Law, and even the freedom to dissent, the oath, far from disparaging or denying these ideals, honours them too. They argue that because those who refuse to take the oath misunderstand the history and the nature, both legal and political, of the Canadian Crown, their challenge must be rejected

But the key to understanding the challenge to the oath is not the notion of the “Queen”. It is the notion of an oath. An oath ― any oath ― is an appeal to the conscience of the person who swears it. It is an attempt both to make that person figure out what it is that his or her duty under the oath means, just as he or she does with any moral or conscientious duty (to love one’s neighbour, to give to each his own, etc.), and do to bind that person’s conscience actually do this duty. Because an oath is an appeal to conscience, it is not enough to say that those opposed to it misunderstand it. Understanding an oath and figuring out one’s duty arising out of swearing it is a matter of conscience, and as such, it is entitled to respect, be it ever so unreasonable.

(I would add, however, that some of the oath’s defenders, such as Mr. Yakabuski, would really do well to lose their contemptuous tone towards those who interpret it as a personal commitment to a person Mr. Yakabuski himself describes as “a tiny unelected octogenarian with a matching hat and purse.” Mr. Yakabuski asserts that “only … if you have no knowledge of our history … could you take the oath at face value and get hung up on its plain, or literal, meaning.” But he should spare a thought for those who rely on a guidebook produced by the Canadian government, which tells prospective citizens that “[i]n Canada, we profess our loyalty to a person who represents all Canadians and not to a document such as a constitution, a banner such as a flag, or a geopolitical entity such as a country” (2).)

The scope of our legal duties can and must be authoritatively settled by (judicial) authority. The law, whether provisions regarding treason and sedition or those relating to jury duty etc., already defines the responsibilities of citizenship. Courts can, if need be, enforce their interpretations of these duties against those who disagree. The oath, which the government itself seems to consider legally meaningless, adds nothing in this respect. What it does is attempt to go beyond the realm of law, and reach into consciences.

Yet if we wish to call ourselves free, our moral, conscientious duties must be for ourselves to work out. Monarchists do their ― and my ― cause no favours by supporting a legal requirement that people suppress their own moral opinions and blindly accept the judgment of authority as to the scope of their conscientious duties. The constitutional monarchy I believe in is, indeed, a form of government that embraces freedom, dissent, and diversity of views. It goes against these principles, and only gives ammunition to its opponents, when it fails to respect individual conscience.

A Parade of Horribles

I wrote yesterday about the decision of the Court of Appeal for Ontario in McAteer v. Canada (Attorney General), 2014 ONCA 578, which upheld the constitutionality of the oath of allegiance to the Queen which would-be Canadian citizens are required to swear. As I said in that post, I believe that that the Court’s decision is profoundly wrong, as was that of the Superior Court (McAteer v. Attorney General of Canada, 2013 ONSC 5895). In my view, the Court of Appeal (and the Superior Court before it) was wrong to focus on the applicants’ mistaken interpretation of the oath of allegiance as a commitment to the person of the monarch rather the notion of a (constitutional) Crown. The fact that the applicants misunderstand the oath and they exaggerate the obligations that taking it would impose on them cannot end the inquiry into the oath’s constitutionality.

Before explaining why this is so, however, I want to highlight two problems with the Court’s discussion of the meaning of the oath. These problems might not be fatal. I take the point that, as for example Philippe Lagassé explains, the reference to the Queen in the citizenship oath really is a reference to “the state and the source of all sovereign authority,” so that the Court of Appeal is right about the oath’s legally correct meaning. My objection is, as I will explain below, that this is really beside the point. Still, some of the Court’s arguments are problematic, and may colour the rest of its analysis, so they are worth pointing out.

One problem I see is with the Court’s discussion of the history of the oath of allegiance and its place in our constitutional structure is incomplete in that it begins with the Royal Proclamation of 1763 and the Quebec Act, 1774 ― and thus ignores the history of oaths of allegiance in England. The Court uses this history to present the oath as egalitarian and inclusive by virtue of its lack of religious test, while masking its authoritarian origin in the times of Henry VIII and his struggle to assert not only his religious, but also his secular power following his break with Rome, detailed in an excellent recent paper by Liav Orgad. This is, in my view, something of a historical whitewashing. The oath of allegiance is certainly less burdensome now than it used to be, but if one relies on its historical significance, one cannot ignore its origins.

The other point I want to make here concerns the Court’s invocation of the “principle of harmonization” to “suggest” ― although not, as I read the decision, to hold ― “that the oath to the Queen in the Citizenship Act cannot be a violation of rights under the Charter” (par. 58) because it is virtually identical to an oath which the Constitution Act, 1867 requires members of Parliament to swear and which, being constitutionally entrenched, cannot be invalidated on Charter grounds. The Court is simply wrong here. On its logic, since a house of a legislature is authorized to exclude media by virtue of its constitutionally entrenched parliamentary privilege, there would be no constitutional difficulty with a court doing so either; yet the Supreme Court has held that the exclusion of the media from a courtroom infringes s. 2(b) of the Charter, and that while the existence of a discretionary power to exclude is justified under s. 1, this power must be exercised with the Charter in mind. Immunity from Charter review conferred by constitutional entrenchment is an exception, and there is no reason to extend it to rules which are not constitutionally entrenched.

Whatever role these errors have played in its reasoning, the crucial, fatal flaw in the Court of Appeal’s decision is the weight it gives to the applicants’ misunderstanding of the oath. The Court repeatedly cites a passage from R. v. Khawaja, 2012 SCC 69, at par. 82, where the Supreme Court held that “a patently incorrect understanding of a provision cannot ground a finding of unconstitutionality,” but it is inapposite. Even assuming that this holding applies beyond the context of allegations chilling effect, in which it was specifically made (the full sentence, from which the Court only cited an excerpt, is: “a chilling effect that results from a patently incorrect understanding of a provision cannot ground a finding of unconstitutionality” (emphasis mine)), it does not apply to the oath because the oath is not a “provision.” An oath, as I argue in a forthcoming paper, is not a simple statutory command to do or not to do something. It is an appeal to a the oath-taker’s conscience; it requires the oath-taker to work out the exact nature and scope of the duties it imposes. Oaths are typically (although admittedly not always) required when these duties are impossible to delineate with sufficient specificity, and thus cannot be codified in a statutory provision. The duty of loyalty imposed by the oath of allegiance is a perfect example. The Citizenship Act does not define what it means for citizens to be loyal, to “bear true allegiance” in the words of the oath. Citizens must do that themselves. So while it makes sense to reject an idiosyncratic interpretation of a statutory command, one cannot so easily dispose of a subjective understanding of an oath. The failure to appreciate this taints the Court’s analysis under s. 1 of the Charter, and is at least partly responsible for its rejection of the applicants’ claims that the oath infringes their right to freedom of conscience and religion.

However, before it gets there, the Court commits another blunder by finding that the imposition of the oath does not infringe the freedom of expression of those who must swear it. It the Court’s view, the purpose of the oath is not to “control expression,” while its effects on freedom of expression are merely incidental and do not deserve disapprobation. The claim that a requirement to make a statement with an obvious expressive content does not aim at “controlling expression” is astonishing. The Court asserts that “[t]he substance of the oath and the history of its evolution also support the conclusion that the oath does not have a purpose that violates the Charter” (par. 74), but however innocuous or even worthy the contents of the oath might be, there is no getting away from the fact that the requirement to swear it is a requirement to engage in expression. Indeed, as the Court itself says with approval, “[t]he application judge held … that the purpose of the oath ‘is … one of articulating a commitment to the identity and values of the country'” (par. 72; emphasis added). How one can find that requiring people to a articulate a commitment does not control their expression is beyond me.

Despite its finding that the oath does not infringe s. 2(b) of the Charter, the Court of Appeal moves on to a s. 1 analysis. This draws heavily on the judgment at first instance, and my criticism of that decision applies to that of the Court of Appeal. The Court’s “reasoning” is largely conclusory, such as its bald, unexplained assertion that “[r]equiring would-be citizens to express a commitment to the quintessential symbol of our political system and history serves a pressing and substantial objective” (par. 92). It ignores the alternative forms of the oath that would do a better job of letting people express commitment to Canada and its constitution because they would be better understood. It notes but fails to seriously address the pervasive misunderstanding of the current oath, which extends to government officials, and does not question the capacity of such a widely misunderstood oath to have any meaningful positive effects on those who take it or for their fellow citizens.

Then again, perhaps the Court reveals (albeit unwittingly) its true opinion of the worth of the oath when it notes complacently that a person who swears it is free to recant it without any sort of consequence. Imagine, for a second, a witness who recants his oath to tell the truth; and then imagine, further, a judge who tells him that this doesn’t really matter. The Court is oblivious to the incoherence of asserting that the oath is not a real imposition on citizens because it is meaningless and can be dismissed while arguing that it serves a pressing and substantial objective and has obvious salutary effects.

Finally, the Court also errs in its treatment of the freedom of conscience religion claims. For one thing, because it fails to appreciate the way in which the oath differs from an ordinary statutory command by enlisting the conscience of the person who swears it, the Court again overemphasizes the applicants’ misunderstanding of the oath. As I explain at greater length my paper, in matters of conscience and religion, subjective understandings are determinative, even if mistaken by some external standard. For another, the Court is wrong both to reject the remedy of exempting those who object to the oath from the obligation to take on the ground that such an exemption would undermine its secular character, and to implicitly conclude that since the applicants’ proposed remedy is unavailable, their substantive claim must be rejected. First, exemptions for religious (and arguably conscientious) objectors have been granted and considered by the Supreme Court, without any argument to the effect that they undermined the secular nature of the rules involved. The fact that Sikh students can wear their kirpans to school in derogation to the general rules prohibiting weapons does not undermine the secular character of these rules. But even if an exemption were not a permissible remedy, the obvious alternative is to invalidate the requirement for everyone, not to maintain it. (This is the Supreme Court’s approach in cases of cruel and unusual punishment ― the Court regards exemptions to mandatory minimum sentences as inappropriate in that context, and requires the mandatory minimum to be struck down.)

The applicants have already said that they would appeal to the Supreme Court. Adam Dodek has tweeted that he expects the Supreme Court to deny leave and, for what it’s worth, I suspect that he is right. But it would be nice if we were wrong. The decision at first instance in this case was bad, and the Court of Appeal’s is, if anything, even worse. It is a parade not merely of mistakes, but of judicial horribles. A cynic who wanted to argue that it is the product of a purely result-oriented reasoning would have some evidence to back up his claim. Regardless, this ruling ought not to be left to stand.

You’re Wrong

Yesterday, the Court of Appeal for Ontario ruled that the requirement that naturalized Canadian citizens swear an oath of allegiance to the Queen is constitutional. In McAteer v. Canada (Attorney General), 2014 ONCA 578, it found that the oath infringed neither the freedom of expression, nor the freedom of conscience and religion, nor yet the equality rights of those who are made to swear it. It further found that, even if the oath violated the freedom of expression, that violation would have been justified under s.1 of the Canadian Charter of Rights and Freedoms. I will summarize the Court’s opinion (written by Justice Weiler) in this post, and keep all the nasty things I think about it for the next one.

Much like Justice Morgan, who decided this case at first instance (in McAteer v. Attorney General of Canada, 2013 ONSC 5895), the Court of Appeal devotes a lot of attention to the meaning of the oath, finding that the applicants’ objections to taking it were based on a misunderstanding, which cannot be the basis of a finding of unconstitutionality. The applicants interpret the oath literally, taking “the Queen” to whom it refers to be a person. In the Court’s view, however, “[a] ‘plain-meaning’ approach to interpretation is inappropriate because it fails to recognize the history and the context in which the oath exists in this country” (par. 32).

The Court traces the history of the oath in Canada to the Royal Proclamation of 1763, which required an oath of allegiance rejecting the Catholic religion, and the Quebec Act, 1774, which did away with this religious requirement and introduced a secular oath. It then outlines the constitutional history of Canada, pointing out that under the Constitution Act, 1867, the Queen is both the holder of the executive power and a constituent part of Parliament. In its view,

[t]he evolution of Canada from a British colony into an independent nation and democratic constitutional monarchy must inform the interpretation of the reference to the Queen in the citizenship oath. As Canada has evolved, the symbolic meaning of the Queen in the oath has evolved.

Viewing the oath to the Queen as an oath to an individual is disconnected from the reality of the Queen’s role in Canada today. (Par. 48 and 50.)

The Court concludes that “in swearing allegiance to the Queen of Canada, the would-be citizen is swearing allegiance to a symbol of our form of government in Canada” (par. 54).

The Court also points out that members of Parliament are obliged to take an almost-identical oath of allegiance. This requirement, being part of the constitution by virtue of s. 128 of the Constitution Act, 1867, cannot be unconstitutional, because the Charter cannot invalidate another provision of the constitution. This, it finds, suggests that the oath which new citizens are required to take, cannot be unconstitutional either:

[i]nasmuch as the oath for members of Parliament is specifically required by the Constitution, and the Constitution cannot itself be unconstitutional, the harmonization principle and the legal norms of rationality and coherence suggest that the oath to the Queen in the Citizenship Act cannot be a violation of rights under the Charter. (Par. 54)

Moving on to the Charter analysis, the Court finds ― contrary to Justice Morgan at first instance ― “that the requirement to recite an oath to the Queen of Canada in order to become a Canadian citizen does not violate the appellants’ right to freedom of expression” (par. 68). Although swearing the oath is an expressive activity, its purpose, in the Court’s view, is not “to control expression” (par. 71), but rather “to inquire into prospective citizens’ willingness to accept the rights and responsibilities of citizenship” and their “loyal[ty] to the values represented by Canada’s form of government” (par. 73). Thus,

[r]ather than undermining freedom of expression, the oath amounts to an affirmation of the societal values and constitutional architecture of this country, which promote and protect expression. (Par. 74)

Nor is the oath’s “incidental effect on expression” “worthy of constitutional disapprobation” (par. 75). For one thing, an object can disavow the contents of the oath. Indeed, one of the original applicants, who swore his oath and became a Canadian citizen, subsequently recanted his oath to the Queen and “was informed by the Minister of Citizenship and Immigration that his recantation had no effect on his citizenship status” (par. 79). The fact that the applicants believe that taking the oath would prevent them, in conscience, from continuing their anti-monarchist activities, is irrelevant. They are simply mistaken, and their mistake is no basis for a finding of unconstitutionality. Furthermore, even if the explicit reference to the Queen were eliminated from the oath, “any oath that commits the would-be citizen to the principles of Canada’s government is implicitly an oath to the Queen,” (par. 82) since these principles are those of a constitutional monarchy.

Despite its finding that the oath does not infringe the objectors’ freedom of expression (or any other right), the Court also concludes that, even if an infringement had been made out, it would have been justified under s. 1 of the Charter. The Court finds that “[r]equiring would-be citizens to express a commitment to the quintessential symbol of our political system and history serves a pressing and substantial objective” (par. 92). It also considers that it is rational to make citizens pledge allegiance to the Queen rather than some other element of the constitutional structure. While many citizens, and even the manager of Citizenship Legislation and Program Policy at the Department of Citizenship and Immigration, seem to share the applicants’ (mistaken) understanding of the meaning of the reference to the Queen, this only means

that the government needs to better equip those involved in citizenship policy to understand and convey the meaning and significance of the phrase, ‘the Queen of Canada, Her Heirs and Successors'” (par. 94).

On the question whether the oath is minimally impairing of the applicants’ rights, the Court seems mostly to endorse Justice Morgan’s reasons at first instance, and concludes that, considering that a restriction must be found to be minimally impairing if it falls within a range of reasonable alternatives, the oath to the Queen passes this test even though the oath could also have referenced some other element of the constitution. The Court also endorsed Justice Morgan’s finding regarding the balancing of the positive and deleterious effects of the oath, to the effect that the former were substantial, while the latter were not, so long as the oath is properly understood.

The Court then considers the applicants’ claim that the oath infringed their freedom of conscience and religion. It holds that the purpose of the oath is secular, and the fact that the Queen herself must, by law, by an Anglican is irrelevant to it and does not restrict the religious liberty of those who swear the oath. It further concludes that granting the applicants an exemption from the requirement to take the oath “would undermine the societal value or common good derived from a universal religious-neutral declaration” (par. 116). Similar considerations apply to the applicants’ conscientious opposition to the oath and the monarchy in general.

Finally, the Court also rejects the claim that the oath infringes the equality rights of those required to swear it. The very concept of citizenship presupposes that some people do not have it and must satisfy certain criteria to acquire it. These criteria cannot in themselves discriminate on the ground of citizenship. Nor does the fact that swearing allegiance to a person contradict the beliefs of some make the oath, properly understood as expressing a commitment to the Canadian system of government, a form of religious discrimination.

Like Justice Morgan’s, the judgment of the Court of Appeal is based on its conclusion that the people who object to taking the oath misunderstand it. The oath does not mean what it says, and if the objectors, as well as any number of Canadians, including some government officials responsible for citizenship, are wrong about what it means, that’s too bad for them. With respect, it is the Court itself that is badly wrong about this, as I will argue in my next post.