I wrote yesterday about the decision of the Superior Court of Ontario in McAteer v. Canada (Attorney General), 2013 ONSC 5895, which upheld the constitutionality of the reference to the Queen in the oath of allegiance which would-be Canadian citizens must take. As I said in that post, believe that the decision is wrong. Here is why.
Most of Justice Morgan’s opinion deals with the infringement of the applicants’ freedom of expression by having to make a statement which they do not wish to make, and which is indeed contrary to their sincerely held convictions. Although Justice Morgan recognizes the infringement, he holds that it is justified under s. 1 of the Charter as a reasonable limit acceptable in a free and democratic society. In my view, he goes wrong at just about every step of the way in his s. 1 analysis.
To begin with, his preliminary comments about the quality of the proof which the government must adduce under s. 1 are misguided. It is true, of course, that proof in the realm of policy might be different from proof of ordinary facts in private law litigation. But, contrary to Justice Morgan’s assertion, it is not the case that just because freedom from incarceration is not at issue, the rights infringement “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.,  2 S.C.R. 713 at 776). The passage Justice Morgan quotes deals with “[l]egislative choices regarding alternative forms of business regulation [which] do not generally impinge on the values and provisions of the Charter,” not government action outside the criminal law context. The use he makes of it is misleading if not intellectually dishonest.
Justice Morgan’s acceptance of the government’s asserted objective of the citizenship oath is uncritical, which is perhaps unfortunate, given the doubts about such oaths which Liav Orgad raises in this article, about which I wrote here. However, since the applicants themselves accepted the idea of some form of citizenship oath, Justice Morgan probably could not have questioned it. In any case, this is the least important step of the analysis.
The next and more significant step is to ascertain the existence of a rational connection between the objective of the oath and the reference to the Queen. Justice Morgan claims that it would have been rational for Parliament to include a reference to any of the institutions of the Canadian constitution, of which the Queen is one, in the oath that is a public expression of commitment to that constitution. Really? Just imagine, for a moment, having to promise to “be faithful and bear true allegiance to” bilingualism or bijuridicalism. Would it make any sense? And if not, then how is the monarchy special? Philippe Lagassé, in a post commending Justice Morgan for his “clear understanding of the theory and nature of the Crown,” argues “that the Crown is the state and the source of all sovereign authority,” which does make it very special indeed, but that’s not Justice Morgan’s justification at the rational connection stage.
But it is at the next stage, that of minimal impairment, that Justice Morgan really goes badly astray. He says that the applicants overestimate the degree to which their freedom of expression is impaired because they misunderstand the nature and significance of the Crown in Canadian law. If they only understood that the Crown stands for the Rule of Law and equality, they’d realize that their freedom of expression is minimally impaired. One problem with this argument is that it avoids completely responding to the applicants’ point that Australia, where the position of the Crown is exactly the same as it is in Canada, avoids imposing making a reference to the Queen in its citizenship oath, which suggests that Canada has no need to do it either, and thus the Canadian oath is not as little impairing of freedom of expression as possible. But more importantly, there is something unfair, if not absurd, to expect laypersons to understand the subtleties of Crown law which, as prof. Lagassé notes, seem beyond the understanding even of some judges. The applicants’ understanding of the oath might be incorrect, but isn’t it incumbent on Parliament to produce an oath which doesn’t require a law degree to understand? If the reference to the Queen really stands for the Rule of Law and equality, then why doesn’t the citizenship oath say so? An oath that did might be minimally impairing; one that speaks in legal fictions is not.
Justice Morgan is similarly on the wrong track with his balancing of the deleterious and salutary effects of the citizenship oath. He dismisses the gravity of forcing people to state the oath contrary to their convictions because, he says, their convictions are “a fundamental misapprehension” (par. 80). This is wrong. Justice Morgan refers to Syndicat Northcrest v. Amselem, 2004 SCC 47,  2 S.C.R. 551, but still insists that what matters most is the “objective” weight of the statement the applicants are being compelled to make. Yet Amselem rejects the very notion of measuring objective burdens. Now there is a real difficulty here. Amselem was a case about freedom of religion. In the case of freedom of expression, the majority’s reasons in Slaight Communications Inc. v. Davidson,  1 S.C.R. 1038, which held that forcing a person to make a statement of true facts regardless of his belief in those facts could be justified under s. 1 suggests that objective weight matters. However, I think that this case, although Justice Morgan approaches it only under the heading of freedom of expression, is more like Amselem. The statement the applicants are being forced to make is not one of fact. It is an oath, which is intended to implicate conscience, and thus requires belief. Therefore the Amselem rule that only subjective belief matters (provided that it is sincere) should apply. Justice Morgan also errs, I think, in describing the salutary effects of the oath. Even if there is any benefit to making a public commitment to a symbol of equality, the Rule of Law, and freedom of dissent, surely there would be an even greater benefit to making a public commitment to these things directly, and not to a symbol the meaning of which, however clear in law, is contested as a matter of politics.
I also want to say a few words about Justice Morgan’s take on the freedom of religion issue. Frankly, I find it bizarre. Justice Morgan claims that the assertion that swearing an oath to the Queen is a violation of an applicant’s religious freedom is an attempt to invoke the rights of that applicant to deny the rights of other Canadians, which the Queen symbolizes. But of course, again, the symbol is not the thing. I simply fail to see how removing the reference to the Queen from the citizenship oath would impair anybody’s rights. Does Justice Morgan mean to suggest that Parliament could not change the oath so that it doesn’t mention the Queen? Surely not. Furthermore, if this logic held true for freedom of religion, why doesn’t it for freedom of speech? Yet Justice Morgan accepts that there is an infringement of freedom of expression, and says nothing about any impairment of the rights of others under that heading.
Justice Morgan’s opinion isn’t all bad. He is right, in particular, to give short shrift to the government’s claim that since there is no “right” to citizenship, Parliament can impose whatever conditions it wants on accessing it. However, the core of his decision on s. 1 is rotten. It is wrong to require people to step over their conscience on the basis of a judicial say-so that many, and perhaps most, citizens would have a hard time understanding.