Yesterday, the Court of Appeal for Ontario ruled that the requirement that naturalized Canadian citizens swear an oath of allegiance to the Queen is constitutional. In McAteer v. Canada (Attorney General), 2014 ONCA 578, it found that the oath infringed neither the freedom of expression, nor the freedom of conscience and religion, nor yet the equality rights of those who are made to swear it. It further found that, even if the oath violated the freedom of expression, that violation would have been justified under s.1 of the Canadian Charter of Rights and Freedoms. I will summarize the Court’s opinion (written by Justice Weiler) in this post, and keep all the nasty things I think about it for the next one.
Much like Justice Morgan, who decided this case at first instance (in McAteer v. Attorney General of Canada, 2013 ONSC 5895), the Court of Appeal devotes a lot of attention to the meaning of the oath, finding that the applicants’ objections to taking it were based on a misunderstanding, which cannot be the basis of a finding of unconstitutionality. The applicants interpret the oath literally, taking “the Queen” to whom it refers to be a person. In the Court’s view, however, “[a] ‘plain-meaning’ approach to interpretation is inappropriate because it fails to recognize the history and the context in which the oath exists in this country” (par. 32).
The Court traces the history of the oath in Canada to the Royal Proclamation of 1763, which required an oath of allegiance rejecting the Catholic religion, and the Quebec Act, 1774, which did away with this religious requirement and introduced a secular oath. It then outlines the constitutional history of Canada, pointing out that under the Constitution Act, 1867, the Queen is both the holder of the executive power and a constituent part of Parliament. In its view,
[t]he evolution of Canada from a British colony into an independent nation and democratic constitutional monarchy must inform the interpretation of the reference to the Queen in the citizenship oath. As Canada has evolved, the symbolic meaning of the Queen in the oath has evolved.
Viewing the oath to the Queen as an oath to an individual is disconnected from the reality of the Queen’s role in Canada today. (Par. 48 and 50.)
The Court concludes that “in swearing allegiance to the Queen of Canada, the would-be citizen is swearing allegiance to a symbol of our form of government in Canada” (par. 54).
The Court also points out that members of Parliament are obliged to take an almost-identical oath of allegiance. This requirement, being part of the constitution by virtue of s. 128 of the Constitution Act, 1867, cannot be unconstitutional, because the Charter cannot invalidate another provision of the constitution. This, it finds, suggests that the oath which new citizens are required to take, cannot be unconstitutional either:
[i]nasmuch as the oath for members of Parliament is specifically required by the Constitution, and the Constitution cannot itself be unconstitutional, the harmonization principle and the legal norms of rationality and coherence suggest that the oath to the Queen in the Citizenship Act cannot be a violation of rights under the Charter. (Par. 54)
Moving on to the Charter analysis, the Court finds ― contrary to Justice Morgan at first instance ― “that the requirement to recite an oath to the Queen of Canada in order to become a Canadian citizen does not violate the appellants’ right to freedom of expression” (par. 68). Although swearing the oath is an expressive activity, its purpose, in the Court’s view, is not “to control expression” (par. 71), but rather “to inquire into prospective citizens’ willingness to accept the rights and responsibilities of citizenship” and their “loyal[ty] to the values represented by Canada’s form of government” (par. 73). Thus,
[r]ather than undermining freedom of expression, the oath amounts to an affirmation of the societal values and constitutional architecture of this country, which promote and protect expression. (Par. 74)
Nor is the oath’s “incidental effect on expression” “worthy of constitutional disapprobation” (par. 75). For one thing, an objector can disavow the contents of the oath. Indeed, one of the original applicants, who swore his oath and became a Canadian citizen, subsequently recanted his oath to the Queen and “was informed by the Minister of Citizenship and Immigration that his recantation had no effect on his citizenship status” (par. 79). The fact that the applicants believe that taking the oath would prevent them, in conscience, from continuing their anti-monarchist activities, is irrelevant. They are simply mistaken, and their mistake is no basis for a finding of unconstitutionality. Furthermore, even if the explicit reference to the Queen were eliminated from the oath, “any oath that commits the would-be citizen to the principles of Canada’s government is implicitly an oath to the Queen,” (par. 82) since these principles are those of a constitutional monarchy.
Despite its finding that the oath does not infringe the objectors’ freedom of expression (or any other right), the Court also concludes that, even if an infringement had been made out, it would have been justified under s. 1 of the Charter. The Court finds that “[r]equiring would-be citizens to express a commitment to the quintessential symbol of our political system and history serves a pressing and substantial objective” (par. 92). It also considers that it is rational to make citizens pledge allegiance to the Queen rather than some other element of the constitutional structure. While many citizens, and even the manager of Citizenship Legislation and Program Policy at the Department of Citizenship and Immigration, seem to share the applicants’ (mistaken) understanding of the meaning of the reference to the Queen, this only means
that the government needs to better equip those involved in citizenship policy to understand and convey the meaning and significance of the phrase, ‘the Queen of Canada, Her Heirs and Successors'” (par. 94).
On the question whether the oath is minimally impairing of the applicants’ rights, the Court seems mostly to endorse Justice Morgan’s reasons at first instance, and concludes that, considering that a restriction must be found to be minimally impairing if it falls within a range of reasonable alternatives, the oath to the Queen passes this test even though the oath could also have referenced some other element of the constitution. The Court also endorsed Justice Morgan’s finding regarding the balancing of the positive and deleterious effects of the oath, to the effect that the former were substantial, while the latter were not, so long as the oath is properly understood.
The Court then considers the applicants’ claim that the oath infringed their freedom of conscience and religion. It holds that the purpose of the oath is secular, and the fact that the Queen herself must, by law, by an Anglican is irrelevant to it and does not restrict the religious liberty of those who swear the oath. It further concludes that granting the applicants an exemption from the requirement to take the oath “would undermine the societal value or common good derived from a universal religious-neutral declaration” (par. 116). Similar considerations apply to the applicants’ conscientious opposition to the oath and the monarchy in general.
Finally, the Court also rejects the claim that the oath infringes the equality rights of those required to swear it. The very concept of citizenship presupposes that some people do not have it and must satisfy certain criteria to acquire it. These criteria cannot in themselves discriminate on the ground of citizenship. Nor does the fact that swearing allegiance to a person contradict the beliefs of some make the oath, properly understood as expressing a commitment to the Canadian system of government, a form of religious discrimination.
Like Justice Morgan’s, the judgment of the Court of Appeal is based on its conclusion that the people who object to taking the oath misunderstand it. The oath does not mean what it says, and if the objectors, as well as any number of Canadians, including some government officials responsible for citizenship, are wrong about what it means, that’s too bad for them. With respect, it is the Court itself that is badly wrong about this, as I will argue in my next post.