Last week, I published a lament for the Charter challenge to the Canadian citizenship oath, which the Supreme Court refused to hear, over at the Policy Options blog. Philippe Lagassé has published a thoughtful response, arguing that contrary what I have been saying all along, the case really was about “the legitimacy of the Crown” as a part of the Canadian constitution, so that its rejection was a good thing, because it prevented this legitimacy from being undermined. In particular, prof. Lagassé argues that
[h]ad the courts found that the appellants’ individual interpretation of the oath should trump the constitutional sense, the line between personal views and legal fact would have been blurred. The Crown would no longer have any definitive meaning; instead of personifying the Canadian state, the Queen could plausibly be whatever anyone believes she might be. Suffice it to say, we would not accept this with respect to other public institutions. Individuals are not free to interpret parliamentary statutes in any way they want, for example. Similarly, we expect court rulings to be respected, notwithstanding our personal disagreements with their reasoning. It’s unclear why we shouldn’t afford the Crown the same standing, except for the fact that the monarchy is contentious. If the case had gone the other way, the Crown would arguably have become a lesser part of the constitution as compared to Parliament and the judiciary, one that can be disregarded if it clashes with our personal beliefs.
As I’ve already stated here, I am a monarchist myself, and have no wish to see the Crown a lesser part of the constitution. Fortunately, however, that would not have been the consequence of a judgment in favour of those challenging the oath.
Indeed, there are two ways of arguing this point. One is to say that the government coercing speech is, regardless of that speech’s content a violation of the freedom of expression, which must be justified under s. 1 of the Charter. I will not elaborate on this point here, partly because I am hoping that Ben Oliphant will do so over at Policy Options (no pressure!), and mostly because I think that, although legally correct and sufficient, this argument obscures what is really going on with the citizenship oath.
The other response to prof. Lagassé’s concerns, which I find more attractive, addresses instead of avoiding the content of the oath. Indeed, it focuses on what is really distinctive about it. As I argue in greater detail in a paper published last year, an oath requires the oath-taker to work out for him- or herself the precise nature of the obligations he or she subscribes as a result of taking it. The oath will typically describe those obligations in inherently terms ― such as “allegiance” in the case of citizenship oath ― which are not only inherently vague but also require moral judgment in order to applied to specific situations.
This is in contrast to statutory commands and judicial decisions, to which prof. Lagassé compares the citizenship oath. The contrast with judicial decisions is perhaps most obvious. Court orders tell those at whom they are aimed exactly what to do. Pay the plaintiff 10 000$. Stop dumping your factory’s waste into the river. Re-write the statute within a year or see it become unenforceable. Indeed, impossibility to formulate a precise order can be reason for a court to refuse to intervene in a dispute.
Statutory commands aren’t always as definitive, because they can use standards as well as bright-line rules, the standards used in statutes normally appeal to understandings that are widely shared and the subject of substantial agreement among those whose behaviour is regulated (whether the society at large or some specific group). Perfection in this regard is unattainable, but complete failures ― statutes that fail to guide behaviour to the point of not lending themselves to meaningful judicial debate ― can be declared unconstitutional. We may have to consult a lawyer to figure out the meaning of statute, but we need not consult our consciences.
Swearing the citizenship oath requires one (if one takes the oath seriously, which admittedly most of those who take it probably do not) to do just that. Indeed the oath would be quite unnecessary if it did not. A citizen is already bound by laws regarding treason and others which set out his or her legal obligations to the state (or to Her Majesty as its embodiment). If the oath ― not just the specific oath to the Queen, but any form of citizenship oath ― is not to become entirely redundant, it must be regarded as imposing not legal obligations, but conscientious ones.
Once this is understood, the response to prof. Lagassé’s concerns becomes clear. Our legal system does not impose its own understandings on people’s consciences. And sometimes ― though not always ― it makes exceptions to its own rules in order to accommodate people’s conscientious objections. This does not mean that the rules to which we make exceptions lack a definitive meaning, or have a lesser standing than others, or that we blur the line between personal views and legal fact.
Consider the case of a Sikh student who wants to wear a kirpan to school. Let’s say the school considers the kirpan to be a weapon. The student, however, considers it to be a religious object, and wearing it a religious duty. The school can have a general rule prohibiting weapons ― but, as the Supreme Court has decided in Multani v. Commission scolaire Marguerite‑Bourgeoys,  1 S.C.R. 256, 2006 SCC 6, it must still allow the student to bring his kirpan. Now in Multani, the general prohibition did not define a weapon. But what if had done so, and the kirpan clearly fell within that definition? Surely, it would ― and should ― have made no difference to the Court’s decision. That decision would not have meant that the definition was unclear or unimportant, or that the student’s views could replace the “legal fact” of its meaning. What it would have meant is that, because of the conflict between legal fact and conscientious belief, the state had to justify (under s. 1 of the Charter) its insistence on overriding such belief, and that in this particular case, the state’s justification was unpersuasive.
Similarly, in the case of citizenship oath, the question is not whether the Crown has a definitive meaning in Canadian law, but whether the state has sufficient justification to impose this legal meaning on people whose conscientious understanding of a duty of allegiance to that Crown differs from the legal one. To acknowledge that the state doesn’t have good reason to do so would not have compromised the position of the Crown in Canadian law.