Wednesday, October 22, 2014

Ontario Court Upholds Citizenship Oath's Allegiance to the "Queen of Canada"

The Canadian Citizenship Act (“Act”) requires permanent residents who wish to become Canadian citizens to swear an oath or make an affirmation in the following form:


I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada Her Heirs and Successors and that I will faithfully observe the laws of Canada and fulfill my duties as a Canadian citizen. 


In the case of McAteer v. Canada (Attorney General), 2014 ONCA 578, the appellants objected to the portion of the oath that referred to being faithful and bearing true allegiance to the Queen, her heirs and successors.  They asserted that the requirement to swear or affirm allegiance to the Queen in order to become a Canadian citizen violated their rights of freedom of conscience and religion, freedom of expression and equality under the Charter of Rights and Freedoms.  They argued that the government could not justify any such violation as being a reasonable limit in a free and democratic society and sought a declaration that the impugned section of the Citizenship oath was optional. 


The appellants lost their application before Mr. Justice Morgan of the Ontario Superior Court.  They appealed from that decision to the Ontario Court of Appeal.  The Attorney General of Canada cross-appealed Justice Morgan’s finding that the oath violated the appellants’ right to freedom of expression (although Justice Morgan found that such violation was justified under Section 1 of the Charter). 

The application had been initiated by Charles Roach, a well-known human rights lawyer.  Mr. Roach died in October 2012.  Originally from Trinidad, Mr. Roach was a committed republican who believed that to swear fealty to a hereditary monarch violated his belief in the equality of human beings and his opposition to racial hierarchies.  When Mr. Roach died, Michael McAteer, also a committed republican took up the torch.  Mr. McAteer deposed that taking an oath of allegiance to a hereditary monarch who lived abroad would violate his conscience, betray his republican heritage and impede his activities in support of ending the monarchy in Canada.  Mr. McAteer further deposed that taking an oath to the Queen perpetuated a class system and was anachronistic, discriminatory and not in keeping with his beliefs of egalitarianism and democracy.


Other appellants supported Mr. McAteer’s position.  Dror Bar-Natan deposed that the oath violated his conscience because it was a symbol of a class system.  Simone Topey was a Rastafarian who regarded the Queen as the head of Babylon.  She deposed that it would violate her religious beliefs to take any kind of oath to the Queen.  She further deposed that on account of the oath she would feel bound to refrain from participating in anti-monarchist movements.  Howard Gomberg, a former applicant, deposed that taking an oath to any human being was contrary to his concept of Judaism. 


The Ontario Court of Appeal (Justices Weiler, Lauwers and Pardu) dismissed the appellants’ appeal and allowed the cross-appeal of the Attorney General of Canada.  The court found that the appellants’ arguments were based on a literal, “plain meaning” interpretation of the oath to the Queen in her personal capacity.  The court held that the correct approach was the "purposive" interpretation mandated by the Supreme Court of Canada, which led the court to the conclusion that the appellants' interpretation was incorrect because it was inconsistent with the history, purpose and intention behind the oath. 

Justice Weiler, writing for the court, held that the oath in the Act is remarkably similar to the oath required of members of Parliament and the Senate under the Constitution Act (1967).  In that oath, the reference to the Queen is symbolic of Canada’s form of government and the unwritten constitutional principle of democracy.  She held that the harmonization principle of interpretation leads to the conclusion that the oath in Act should be given the same meaning.   

Further, the Court of Appeal found that the appellants’ incorrect interpretation of the meaning of the oath could not be used as the basis for a finding of unconstitutionality.  The approach to analysing such claims as set out by the Supreme Court, requires the court to determine:


  1. whether what is in issue is expression;
  2. whether the purpose is to compel expression; and
  3. whether there is an effect on expression that warrants constitutional disapprobation.  


Applying this approach, the Court of Appeal found that there was no issue that the oath was expression.  The purpose of the oath was not to compel expression but to obtain a commitment to Canada’s form of government from those wishing to become Canadian citizens.  Although the oath had an effect on the appellants’ freedom of expression, constitutional disapprobation was not warranted.  Thus, there was no violation of the appellants’ freedom of expression.  In the alternative, if there was a violation of the appellants’ right to freedom of expression, it was justified under Section 1 of the Charter.


The court held that there was no violation of the appellant’s right to freedom of religion and freedom of conscience because the oath is secular and is not an oath to the Queen in her personal capacity but to Canada’s form of government of which the Queen is a symbol. 


Finally, the court found that the oath was not a violation of the appellants’ quality rights when the correct approach to statutory interpretation was applied. 







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