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Queen of Canada and Not of Babylon: The Constitutional Status of the Crown in Canada and Freedom of Religion
Published online by Cambridge University Press: 10 April 2015
Extract
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. In one decision, Teskey v Canada (Attorney General), the court denied that the UK legislative changes to the succession rules to which Canada agreed 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) 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’.
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References
1 Constitution Act 1982, being Schedule B to the United Kingdom's Canada Act 1982.
2 2014 ONCA 612 (CanLII).
3 Succession to the Crown Act 2013 (UK) 2013, c 20. See also Morris, B, ‘Succession to the Crown Bill: possible untoward effects?’, (2013) 15 Ecc LJ 186–191Google Scholar; Hill, C, ‘Succession to the Crown Act’, (2013) 15 Ecc LJ 332–334Google Scholar.
4 Succession to the Throne Act 2013, SC 2013, c 6 (not yet in force). The agreement by the prime ministers of the 16 Commonwealth nations occurred in October 2011 (the ‘Perth Agreement’) to ensure the necessary legislation as required by s 2 of the Statute of Westminster 1931.
5 2014 ONCA 578 (CanLII).
6 Citizenship Act, RSC 1985, c C-29, s 3(1)(c) and Schedule. The words to which the complainants took offence are: ‘I swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors’.
7 2013 ONSC 5046 (CanLII).
8 2003 CanLII 41404 (ONSC), affirmed in 2005 CanLII 6369 (ONCA).
9 O'Donahue at para 21.
10 Ibid at para 27.
11 Ibid at para 29.
12 Ibid at para 31.
13 Teskey at para 15.
14 Ibid at paras 17–18.
15 Ibid at para 6.
16 See Roach v Canada 1994 CanLII 3453 (FCA); Roach v Canada (Secretary of State) 2007 CanLII 17373 (ONSC); Roach v Canada (Attorney General) 2007 CanLII 21594 (ONSC); Roach v Canada (Attorney General) 2007 CanLII 49186 (ONSCDC); Roach v Canada 2008 ONCA 124 (CanLII); Roach v Canada (Attorney General) 2009 CanLII 7178 (ONSC); Roach v Canada 2012 ONSC 3521 (CanLII).
17 2013 ONSC 5895(CanLII) at paras 13–20.
18 The concept of Canadian citizenship dates from 1947; see Canadian Citizenship Act, SC 1946, c 16, s 1.
19 McAteer at para 20.
20 Ibid at paras 81–82.
21 Ibid at para 79.
22 Ibid at para 85.
23 Ibid at para 86.
24 Ibid at paras 90–91.
25 Ibid at paras 92–94.
26 Ibid at paras 96–100.
27 Ibid at para 101–108.
28 McAteer at paras 28–54.
29 Ibid at para 54.
30 Ibid at paras 55–62.
31 Ibid at paras 85–87.
32 Ibid at paras 108–115.
33 Ibid at paras 119–120.
34 Ibid at paras 117–118.
35 Ibid at para 121.
36 Ibid at para 122.
37 Ibid at paras 127–128.
38 S 41 of the Constitution Act 1982 contains provisions requiring the assent of the federal and all the provincial legislatures to all changes concerning the Crown. It is widely accepted that the requirement for unanimity of the legislatures in Canada makes it very unlikely that any changes to the monarchy will occur.