George Brown of the Globe, 1818—1880.

At the end of the 1864 Quebec conference that forged the constitutional beginnings of the  confederation of 1867 George Brown, founder of the old Toronto Globe and early Canadian Grit/Liberal/Reform political leader, wrote a hasty letter to his wife.

He reported : “You will say our constitution is dreadfully Tory –  and it is – but we have the power in our hands (if it passes) to change it. Hurrah!”

Some among us, 150 years later, will still take George Brown’s “dreadfully Tory” constitution that can nonetheless be changed as the key message from the recent Ontario Court of Appeal decision, on the current mandatory Canadian citizenship oath to a monarch far away.

Justice Karen Weiler wrote the decision, on behalf of herself and two other Ontario Court of Appeal colleagues. She largely endorsed and followed the particular logic of the earlier decision under appeal, written by Justice Edward Morgan. And Justice Morgan is a former international law professor at the University of Toronto, appointed to the Ontario Superior Court of Justice by the monarchy-revivalist Harper government in 2012.

New Canadians take oath of citizenship, and “bear true allegiance to Her Majesty Queen Elizabeth the Second ... Her Heirs and Successors,” at ceremony in Thorold, Ontario, June 14, 2013. JEFF BLAY/Thorold Niagara News/QMI Agency Niagara.

The crux of the Court of Appeal decision is that forcing all new Canadian citizens to swear allegiance to the British monarch does not violate their rights under the Canadian Charter of Rights and Freedoms, in the Constitution Act, 1982.  And the present citizenship legislation does not have to be changed or even just legally reinterpreted on that account.

Since Justice Weiler’s decision was handed down there has been some comment in the media, applauding its stress on understanding the  Canadian citizenship oath to the British monarch as something deeply rooted in Canadian history. Yet many among us (and I am one) will see the history alluded to here as a very particular “British Tory” and even ideologically monarchist reading of the real Canadian past. (And, with all due respect to the learned justices, their  views on what history means can finally be no more authoritative than those of any other citizen of what the Constitution Act, 1982 calls our “free and democratic society” in Canada today.)

Our modern “document that affirms the rights of the people”

Greater Sudbury in Northern Ontario welcomed 48 new Canadian citizens during a ceremony on March 21, 2012. Some were new to the country, while others had been living there for as long as 45 years. Photo by Heather Campbell.

For what they believe are their own good reasons, both Justices Morgan and Weiler virtually ignore the earliest modern history of what is now called Canada – from the first contacts between Aboriginal and European and Other peoples, in the long 16th century that launched today’s world economy, to the middle of the 18th century, in the generation before the American and French revolutions..

All this, their honours seem to be saying, just has no bearing on what is “legal” in Canada today. Yet the word Canada itself arose during this early period, and so did the first people who called themselves Canadians. The Canadian polity today is as much an heir of this “French and Indian” multiracial history, as it is of the later British imperial history that began in the early 1760s.

(And for some quite serious legal and constitutional exploration of one quite radical side of this argument, see law professor Brian Slattery’s 1996 paper in the Osgoode Hall Law Journal, “The Organic Constitution : Aboriginal peoples and the evolution of Canada.”)

On July 1, 1947 the post office issued a stamp to celebrate the new Canadian Citizenship Act.

The Court of Appeal similarly concentrates on what some might reasonably see as a largely Tory monarchist reading of what is now known as the Constitution Act, 1867. (Formerly called the British North America Act – a law of the British Parliament at Westminster, not finally “patriated” by the Canadian Parliament in Ottawa, and nine of 10 provincial governments, until 1982).

You may come away from reading Justice Weiler’s decision as well, without being aware that there was no such legal status as that of a Canadian citizen until as recently as the first Canadian Citizenship Act of 1947. (From the early 1760s down to the end of the Second World War, Canadians were just British subjects resident in Canada.)

Similarly again, according to the now retired University of Guelph political science professor Frederick Vaughan, for example : “The Constitution Act, 1982 was the instrument that, with one stroke, severed Canadians from their ancestral monarchical foundations. With the Charter, Canada began a new life as a nation, a republican nation. The Charter is based upon republican principles. It is the closest Canadians have ever come to a document that affirms the rights of the people.”

Moving on with Charles Roach’s long campaign

The late great Canadian republican Charles Roach didn’t think the British monarch should still be appearing on Canadian money in the 21st century either.

Justice Weiler’s decision marks the latest and possibly the last stage in the late Toronto civil rights lawyer Charles Roach’s long legal campaign to Canadianize the Canadian citizenship oath of the 21st century, by removing old references to “bear true allegiance to Her Majesty Queen Elizabeth the Second …  Her Heirs and Successors.”

(While keeping references to such more crucial and democratic things as the  “laws of Canada and … my duties as a Canadian citizen.”)

The working hypothesis of Mr. Roach’s long legal campaign was that Canadian courts, under the new dispensation of the 1982 Charter of Rights, just might be prepared to acknowledge at least some of Professor Vaughan’s kind of ”Canadian republican” argument.

What the April 13, 2014 decision of the Ontario Court of Appeal now seems to have almost definitively shown those of we established Canadian citizens who have supported the likes of both Mr. Roach and Mr. Vaughan is that, even after the Constitution Act, 1982, Canadian courts are congenitally at least “small-c” conservative, and sometimes even still in the spirit of George Brown’s “dreadfully Tory” constitution of 1867.

Three permanent residents of Canada – l to r : Dror Bar-Natan, Simone Topey, and Michael McAteer – have carried on with Charles Roach’s Charter challenge of the compulsory oath to the British monarch for new Canadian citizens.

They are not about to legally bless any even mild and vague hints of Frederick Vaughan’s “republican principles” of 1982 in the real world of politics. That remains the job of the elected, democratic branches of The Government of Canada.

In fact, almost all the current jurisprudence on the matter does agree that all it takes to change the present Canadian citizenship oath is a simple act of the federal parliament. And it is probably time  for those of us who want to see the oath changed to focus our efforts in this direction – especially with a 2015 federal election already in the air.

Doesn’t it eventually have to mean something that only a minority of established Canadian citizens today still support the monarch to whom the oath is being sworn by new citizens ????

More successors of the late great Charles Roach. Lawyers for citizenship oath protestors Dror Bar-Natan, Simone Topey, and Michael McAteer – l to r : Selwyn Pieters, Reni Chang, and Peter Rosenthal.

Not too long ago, Chantal Hébert was arguing : “It is hard to think of a stance that would go a longer way to reconnect the federal Liberals with Quebec and with many of the constituencies that make up the New Canada than the offer of a strong post-monarchy vision of the country.”

This has apparently proved too big a stretch for the new party of Justin Trudeau. But what about the other new progressive federal party of Thomas Mulcair?

And/or – for either of the current main opposition parties – what about a much more modest commitment to just give new Canadian citizens the option of including the present references to “bear true allegiance to Her Majesty Queen Elizabeth the Second …  Her Heirs and Successors” in their citizenship oaths or not?

(While insisting on the references to such more crucial and democratic things as the  “laws of Canada and … my duties as a Canadian citizen”?)

Members of Parliament with new Canadian flag during the flag debate, Ottawa, 1964 (courtesy NAC/PA-142624).

Put another way, now that the courts have almost definitively (and many will say, quite properly) bowed out, what part of our democracy today is going to speak for the 55% of Canadians who, according to a Harris-Decima  poll last year, “want change to Canadian head of state instead of continuing with any member of the British royal family”?

Note too that “79% of people in Quebec want this change, as do more than 60% of people younger than age 34.”Â  And : “Only 34% want royal family member to continue to be Canada’s head of state.” These kinds of numbers have been around for a while now. At some point they will have to start to add up – one way or another.