When I became a Canadian citizen, more than 10 years ago now, I had, a according to the Citizenship Act, to affirm
that I [would] 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 fulfil my duties as a Canadian citizen.
Most new citizens are probably not very enthusiastic about swearing allegiance to Her Majesty; I certainly wasn’t at the time, though my views have since changed. But a hardy few outright refuse to swear the oath, and are trying to challenge its constitutionality, as the Globe and Mail reports.
It is, in a way, an old story. Charles Roach, who led the effort to have the oath declared unconstitutional until his death last year, had his first attempt to do so struck by the Federal Court of Appeal in Roach v. Canada (Minister of State for Multiculturalism and Citizenship),  2 F.C. 406, as disclosing no reasonable cause of action. More than a decade later, Mr. Roach and a number of others renewed the attack, this time in the Superior Court of Ontario. This time, the challenge was framed as a class action on behalf of all those “who for reasons of conscience, object to taking an oath of allegiance to her Majesty … and who because of their said objection have not become citizens of Canada or became citizens by taking the oath under duress.” The federal government failed in its attempt to have their application struck, while the applicants’ attempt to proceed by way of class action was denied in Roach v. Canada (Attorney General), (2009) 185 CRR (2d) 215. That decision, if I understand correctly, also struck their claim for damages.
What is left, then, at least if there have been no substantial amendments to the application in the intervening four years, is a claim that the oath as it is set out in the Schedule to the Citizenship Act is a violation of the “fundamental freedoms” protected by s. 2 of the Canadian Charter of Rights and Freedoms (freedom of conscience and religion; freedom of thought, belief, opinion and expression; freedom of assembly; and freedom of association), and of the equality guarantee in s. 15(1) of the Charter (amounting to discrimination between citizens and non-citizens, the latter not having to swear allegiance to the Queen in order to enjoy the benefits of citizenship). According to the Globe, the applicants say that they are quite willing to swear to observe Canadian laws, but, because of political or religious convictions, will not swear an oath to the Queen.
I will say a few words here about the Federal Court of Appeal’s 1994 Roach decision, and will try to have some substantive comments on the merits of the new challenge in a separate post.
The Court of Appeal was split, with Justice MacGuigan writing for the majority and Justice Linden dissenting. The dissent is rather more elaborate than the brief majority judgment, so it is worth starting with it. It is important to keep in mind, however, that because the case was an appeal from a motion to strike, the question was only whether it was plain and obvious that the Charter challenge had no chance of success, so Justice Linden’s opinion that it was not does not necessarily mean he thought Mr. Roach should ultimately prevail.
Justice Linden’s observes that
[a]n oath or affirmation … is not a matter to be taken lightly; when, for reasons of conscience, a person feels he or she cannot swear a certain oath or make a certain affirmation, one must carefully consider that position, for it shows that that person takes the oath seriously, something we wish to support.
As for Mr. Roach’s claims, he would have held that it is not “plain and obvious” that the oath of loyalty to the Queen does not prevent its taker from holding, expressing, and acting on anti-monarchist beliefs, even though such an interpretation (which the majority endorses) “makes sense”; thus there is at least a chance that a claim based s. 2(b) of the Charter, which protects the freedom of opinion and expression, would succeed. Similarly, Justice Linden thinks there is at least a chance that Mr. Roach would prevail in his freedom of association claim, on the basis that taking the oath would prevent him from associating with fellow republicans. Finally, Justice Linden would also have let stand the claim that the oath breached the Charter’s equality guarantee (s. 15), because the oath is only required of would-be naturalized citizens, and not of people born in Canada. He agrees with the majority in rejecting claims based on freedom of conscience and religion, freedom of assembly, and protection against cruel and unusual punishment.
The majority, however, concludes that none of Mr. Roach’s claims had any chance of success. It holds that
the oath of allegiance has to be understood to be binding in the same way as the rest of the Constitution of Canada not forever, nor in some inherent way, but only so long as the Constitution is unamended in that respect [and that] [i]t is a matter of common sense and common consent that it is neither unconstitutional, nor illegal, nor inappropriate to advocate the amendment of the Constitution.
The oath thus only binds the person who takes it to respect the constitution as it stands at the time the oath is taken, while leaving him or her entirely free to advocate change, at least so long as the change would be done in accordance with the constitution itself. Thus the “fundamental freedoms” claims have no chance of success. Nor does the equality claim. For one thing, the burden of actually taking the oath is trivial. For another, since the oath does not curtail one’s freedom to work for constitutional change,
what our country may come to be … is for millions of Canadian citizens to work out over time, a process in which the appellant can himself share, if he only allows himself to do so.
The disagreement between majority and dissent, then, is largely about the import of the oath. What does it mean to “be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second”? And, importantly, does it matter that the person who refuses to take the oath takes a different view of what it entails than Parliament and/or the judiciary? These are not easy questions. I will try to have more to say about them, and the others that the case brings up, shortly.