State v. Conscience

Freedom of conscience, state authority, and the case of the citizenship oath

As I had already mentioned, last week I spoke at a discussion on freedom of conscience that the Runnymede Society organized at McGill on Tuesday. It was a lot of fun, and as always at McGill there were some great questions from the students who came out. For those of my readers who weren’t there though, I thought I’d post my prepared remarks. I ended up moving a few things around in the presentation, but this is close enough to the substance of what I said. Those of you who have followed my posts on the citizenship oath probably won’t find much that’s new here, but if you’ve missed them, this is a flavour.

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The idea of freedom of conscience has been in conflict with state authority for as long as it existed, which is to say about 500 years. (Since it’s the Runnymede Society that has invited us here, I would have loved to say something about the Magna Carta ― but although freedom of the Church is the very first article of the Great Charter, there is nothing there about freedom of conscience, or for that matter about other “fundamental rights” protected by section 2 of its Canadian descendant. Indeed, the development of the very idea of conscience is associated with Aquinas, who was only born 10 years after the Magna Carta was issued.)

Lord Acton puts the idea of freedom of conscience beautifully and concisely. It is the belief that “the knowledge of good and evil is not the sublime prerogative of states, nations, and majorities. … Its action is to limit power by causing the sovereign voice within to be heard above the expressed will and settled custom of surrounding men.” Needless to say, the man or woman who seeks to live by his or her own lights is bound to clash with the state, which wants to reserve the prerogative of defining good and evil for itself, for reasons both righteous (of which Hobbes and Locke remind us) and corrupt, of which Lord Acton does: “The passion for power over others can never cease to threaten mankind, and it is always sure of finding new and unforeseen allies in continuing its martyrology.”

The conflict is ineradicable, but the weapons by which it is waged change. We have forced the state to abandon the executioner’s sword, and we have now at our disposal the instrument of judicial review of legislation. When Henry VIII became the first monarch to demand that all of his subjects swear allegiance to him (in his newfound capacity as the head of the Church of England), Sir Thomas Moore, who refused, was beheaded. When people who seek to become Canadian citizens refuse to swear that they will “be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors,” they are allowed to go to court and to challenge the requirement that they take the oath.

As some of you may know, recently a group of would-be Canadians did just that. They lost, however, both at the Superior Court of Justice and at the Court of Appeal for Ontario. The Supreme Court refused to hear their appeal. Still, we thought that it might be interesting to come back to this case, as an illustration of the conflict between the authority of the state and the conscience of individuals. The case, I should note, was litigated under the heading of freedom of expression, not freedom of conscience. But although I believe that the applicants should have prevailed on that claim too, I think that it fails to capture the really interesting and distinctive feature of the problem of the oath, which is the way in which it is tied up with conscience.

Originally, swearing an oath meant incurring a religious obligation, but the idea of an oath persists, even in a secular state, cut off from its religious roots. Any oath, as the Supreme Court has recognized, is an attempt to “get a hold” of the conscience of the person who swears it. Breaking an oath would be immoral, even if one doesn’t believe that it would result in damnation―and regardless of any criminal sanction that might follow. But an oath typically involves morality at another level as well, in that its performance is almost always a matter of moral judgment. This is not a conceptual truth―some oaths are not of that sort―but the law tends to require oaths in those situations where it cannot describe and therefore impose the obligations it would like to demand because they are vague, subjective, and ultimately appeal to the conscience of the person who is to perform them.

I’ll mention just one example other than the citizenship oath itself, drawn from the oath that you will swear when you are called to the bar. Those of you who will be called in Ontario, and perhaps in other provinces too, will swear, among other things, to “seek to ensure access to justice”. This is not a straightforward obligation. Discharging it will require you to think about just what your duties really are; a judgment that is no doubt partly intellectual, but also, to a considerable extent, moral. Ensuring access to justice is, for a single lawyer and for the profession as a whole, a matter of degree, and you must decide how far to go. Should you limit your fees? How much pro bono work should you do? Can you “ensure access to justice” while being a member of a state-enforced cartel whose raison d’être is to increase the cost of legal services? The oath does not answer these questions; there is no rule to guide you; you must figure these things out for yourselves, in conscience. What the oath does―if you take it seriously, and not just as an ancient ritual, which in fairness it might be―is it “gets a hold” of your conscience and directs you to ask yourselves some very hard questions.

Oaths of allegiance are similar in that they enlist the conscience of those who swear them; they require these persons to ask themselves what it means to be loyal to that to which they pledge allegiance, and what that duty of loyalty that they impose might require in various circumstances. The oath of allegiance is not reducible to those obligations that state imposes by law―for example with the provisions of the Criminal Code regarding treason. If it were, there would be no need for it. The reason an oath is required is that something more―namely, a moral commitment that goes beyond legal obligation―is thought to be necessary.

The people who challenged the citizenship oath―unlike, I suspect, most of those who swear it but regard it as a mere meaningless formality (myself included, I confess)―have thought about it would mean to “bear true allegiance to Elizabeth II, Queen of Canada.” They think that would mean being personally loyal to the monarch and politically loyal to the monarchy, both of which they regard as intolerable. And the courts that have passed on their claim implicitly agree that the state could not actually impose this sort of condition on acquiring Canadian citizenship. But, they have said, this is all a misunderstanding. Swearing allegiance to the Queen of Canada does not mean swearing allegiance to Elizabeth R. personally; nor does it mean endorsing the monarchy as a system of government. If only the people who are challenging the oath understood it correctly, they’d realize that it is not the sort of imposition that they imagine it to be.

Now, I take it from Philippe Lagassé, who spoke at McGill not long ago, that the courts are right as a matter of Crown law. The Queen of Canada to whom the oath refers is the personification of the Canadian state, and an entirely distinct entity from the head of the Church of England, for instance. But, I submit, the state―and keep in mind that the courts are a branch of the state―cannot have it both ways. It cannot ask people to swear an oath, and thus to work out for themselves, as a matter of conscience, what their obligations are, and then turn around and say that those who have done this exercise got the answer wrong. The state can impose legal obligations by statute, in which case people’s misunderstanding of the law cannot ground a constitutional challenge to it, as the Supreme Court has held in Khawaja. A statute merely tells you what to do or not to do; it does not have anything to do with your conscience. But if the state, instead of enacting a statute, exacts an oath, and thus appeals to conscience, must respect the conscientious judgment of the people whose morality it seeks to enlist. In this instance, it means that the courts should have recognized the burden on the persons who challenged the oath to the Queen, and required the state to justify the imposition of this burden under section 1 of the Charter.

I don’t have the time to go through the complete section 1 analysis, which is unfortunate because there is a lot to say there, both about the futility of loyalty oaths generally and about the defects of ours in particular. I’ve gone over that in more detail in an article. I will only make one point that has to do directly with freedom of conscience. At the last stage of the Oakes justification test, we have to consider the impact of the infringement on the claimant. If we think only of the oath’s infringement of freedom of expression, as the Ontario courts have done, that impact is very limited. But if we consider the oath as an enlistment of the conscience of those who swear it for the rest of their lives, it is, I believe a rather more serious business.

Ultimately, the Canadian state does not care very much about the oath it exacts from its new citizens. One of the people who had challenged the oath to the Queen withdrew from the proceedings, swore the oath, and became a citizen. He then proceeded to write to the government telling it that he recanted the oath he just swore. The government wrote back saying that this didn’t matter. Now imagine, for a second, that you are testifying in court, and decide to tell the judge that you recant your oath to tell the truth ― and the judge tells you that this is fine, and just go on. Still, it is a reminder of the conflict between conscience and authority ― even if authority may not be inclined, in this instance, to fight as hard as it once did.

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In case you want to see more of my thinking on the matter of the citizenship oath, the paper I mention above is here. As for the Lord Acton quotes, they are drawn from his magnificent Lectures on Modern History.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading. View all posts by Leonid Sirota