The Superior Court of Ontario has ruled yesterday that the Canadian citizenship oath, which requires would-be citizens to promise “allegiance” to the Queen, is constitutional, thus rejecting the challenge of a group of anti-monarchists who argued that it infringed their freedoms of speech and of religion, as well as their equality rights under the Canadian Charter of Rights and Freedoms. The decision, McAteer v. Canada (Attorney General), 2013 ONSC 5895, is quite interesting, though I think it is ultimately wrong. I will summarize it in this post, and then discuss my own take on it in a separate one.
Justice Morgan notes that the citizenship oath requirement imposes a real burden on those who refuse to take the oath and are, for that reason alone, unable to become citizens. The applicants’ opposition to the oath (in its current form) is sincere, and they would have to make a statement with which they deeply disagree in order to become citizens. The government’s claim that this isn’t a real burden at all since they are able to go on living in Canada indefinitely as permanent residents is “surprising” (par. 26).
Furthermore, it does not matter that there is no “right” to citizenship, or that obtaining citizenship is something people would be free to do but for the government’s interfering with their freedom. The applicants are not asking for an entitlement to citizenship, but only for the removal of an obstacle to their getting something for which they would otherwise be qualified. In any case, “the courts have already determined that citizenship criteria are subject to Charter scrutiny” (par. 32). The government cannot make Canadian citizenship “a prize” for giving up a Charter right (par. 32).
The right at issue here is freedom of expression. This includes not only being able to say what one pleases, but also to refrain from saying something one doesn’t want to say ― silence can be a form of very eloquent expression. By forcing the applicants to say something they would rather not say in order to obtain citizenship, Parliament has infringed their freedom of expression guaranteed by s. 2(b) of the Charter.
The question then becomes whether this infringement can be saved under s. 1 of the Charter as a “reasonable limit[] … demonstrably justified in a free and democratic society. Justice Morgan holds that it can.
He begins his s. 1 analysis by asserting that, although the burden of proof at this stage is on the government, it is not proof “in the usual courtroom sense of the word” (par. 35). Furthermore, since this case does not concern criminal law, and no one’s freedom from incarceration is at risk, the government’s measure “need not, and probably could not, be ‘tuned with great precision to withstand judicial scrutiny'” (par. 36; quoting R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 at 776).
With respect to the objective of the oath of allegiance, including the reference to the Queen, Justice Morgan seems to accept the government’s submission that it is to express a symbolic commitment to Canada and its constitution. The applicants argued that the reference to the Queen did nothing to achieve that objective, but that, says Justice Morgan, is an argument about rational connection, not about the objective itself. Since the applicants do not contest the value of having an oath expressing commitment to the constitution, they cannot prevail on this point.
Is there, then, a rational connection between making a commitment to the constitution, and pledging allegiance to the Queen? The applicants say there is none, because the Queen is an alien, inegalitarian, and undemocratic figure. But, says Justice Morgan, though the applicants might want this to change, the fact remains that the monarchy is a part of the constitution. Therefore, “it is certainly rational for Parliament to have embraced an oath that references in a direct way Canada’s official head of state” (par. 46), just as it would have been rational for Parliament to chosen to referenced any other distinctive element of the constitution ― bilingualism, bijuridicalism, federalism, etc.
The next stage in the analysis is whether the oath of allegiance is a “minimal impairment” of the applicants’ freedom of expression. The applicants claimed the Queen represents inequality and colonialism, and is at odds with the ideals of modern Canadian society. Furthermore, other democratic states, including Australia, of which the Queen is also the head, make do without oaths to their heads of state. But the applicants, Justice Morgan says, misunderstand the meaning of the reference to the Queen and the significance of the oath. The oath of allegiance is neither an expression of loyalty to Elizabeth II as a person nor even an unbreakable commitment to the monarchy as an institution. The Queen to which the oath refers is only a symbolic representation of the constitution itself, not the physical person living in Buckingham palace. She represents the Rule of Law, not arbitrariness; equality, not privilege; Canada, not the U.K. The applicants argued they simply take the “plain meaning” of the citizenship oath seriously, but Justice Morgan finds that their “problem is not so much that they take the oath seriously. Rather, their problem is that they take it literally” (par. 59), in a manner “that is the exact opposite of what the sovereign has come to mean in Canadian law” (par. 67). It is because of this that the applicants perceive the oath as a serious infringement of their freedom of expression. If the oath is understood correctly, it is minimally impairing of this right.
Similar considerations apply at the last stage of the s. 1 analysis, a comparison between the salutary and the deleterious effects of the oath of allegiance. The applicants contended that its deleterious effects were great, because taking the oath prevented them, in conscience, from continuing their anti-monarchist activities. But that too, says Justice Morgan, is a misunderstanding. Justice Morgan expounds at great length on the “loyalist myth” according to which the United Empire Loyalists who came to Canada after the American Revolution were personally and unquestioningly loyal to the British King, and to which, in his view, the applicants’ position is similar. No, political dissent and opposition were always part of the Canadian tradition. Those taking the oath of allegiance can oppose the monarchy, provided only that theirs remains a “loyal opposition.” The applicants’ beliefs, however sincere, as misguided, so that the harm to their freedom of conscience is outweighed by the benefits of requiring new citizens to affirm “fidelity to a head of state symbolizing the rule of law, equality, and freedom of dissent” (par. 80). The citizenship oath is a limit on freedom of expression, but one that is “appropriate for a free and democratic society that is Canada” (par. 81).
Finally, Justice Morgan holds that the citizenship oath infringes neither the applicants’ freedom of religion nor their equality rights. Because the Queen symbolizes equality and the Rule of Law, the oath of allegiance is “rights-enhancing” (par. 90). The freedom of religion claim, in his view, “runs up against the settled notion that the rights of some cannot be a platform from which to strike down the rights of others” (par. 90). The oath itself is secular, and accommodating religious beliefs in the context of a secular ceremony would be tantamount to state sponsorship of religion, which is itself contrary to the Charter guarantee of religious freedom. As for equality, to the extent that it is religious or racial equality that is at issue, there is no evidence of any disparate effect that the current oath might have on minorities. And insofar as the allegation is one of discrimination on the basis of citizenship status, it cannot succeed because it is the very definition of citizenship status that is at issue.
The citizenship oath survives. In an earlier post, I said that I wouldn’t have bet on the contrary result, and it seems like I was right. I also argued, however, that this result is wrong. For the reasons which I will explain tomorrow, Justice Morgan has not persuaded me of the contrary.
UPDATE: My comment on Justice Morgan’s decision is here.
Double Aspect 
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