Not Even Close

I said I would stop writing about the Québec Charter of Values for a while, but I’ll break that promise already, albeit only to report that a number of law professors have given their views on it in the last couple days. Their verdict is almost unanimous: the proposed Charter’s key part, the prohibition on state employees wearing “conspicuous” religious symbol is certainly unconstitutional.

First, there is this discussion in the Globe. Ten of the eleven participants (mostly professors, but also a couple of barristers) argue that the proposed Charter is unconstitutional. One of them goes so far as to say that “[t]he only question is how polite the court will be in stating so.” The lone dissenting voice is that of Daniel Turp, who these days teaches constitutional law at Université de Montréal. However, although the Globe does not say this, prof. Turp is a partisan ― he is both a former Bloc Québécois MP and and a former PQ member of Québec’s legislature. Prof. Turp is also rather fond of far-fetched constitutional arguments. His comments, which cite a number of decisions of the European Court of Human rights, but none of the Supreme Court of Canada, just aren’t persuasive.

And second, there is this op-ed by a distinguished group of law professors in the Journal de Montréal, arguing that it is unclear what purpose the ban on religious symbols serves or how it is connected to that purpose, and that it is, in any event, disproportionate. It “very unlikely” that it would be upheld by the courts.

My own conclusion, which I presented here, is exactly the same. The ban on religious symbols is unconstitutional. It’s not even close.

Of Course Not

The Québec government’s proposal for a “Charter of Québec Values” is now official. It’s not much of a proposal, actually ― there is no bill, and there isn’t going to be for months yet ― but we do have a fancy website on which the government explains what the Charter will do. (The English version isn’t all in English, but I don’t suppose one can expect better from the PQ government.)

The highlight proposal is, as had long been known, a prohibition on “conspicuous religious symbols” ― Jewish skullcaps, Muslim veils of any kind, Sikh Turbans, and large crosses, though not small ones (the government isn’t saying how large is large and how small is small) ― for any government employees, as well as those of public schools, public or subsidized childcare centres, universities, and hospitals. Some of the institutions affected (universities, hospitals, and municipalities) would have the right to exempt themselves from the application of this measure for renewable periods of five years. Others (notably schools) would not. Québec’s “heritage” would also be exempt from this measure ― so the rather conspicuous crucifix hanging in the National Assembly will stay right where it is. (There is no ban on prayer in municipal councils either ― though the government doesn’t even pretend to have a reason for that.)

Many nasty things have been said and will be said about this project. I will say some too here in the coming days. (UPDATE: Come to think of it, I have already been saying nasty things about it in my last post.) But, for the moment, I will start with a constitutional analysis, hopefully a relatively dispassionate one. La Presse has one here, concluding that the constitutionality of the government’s project is “far from certain”; the CBC, after much equivocation, concludes that “[w]hen the debate centres around religion, it’s fair to say the devil is in the details.” For my part though, I see little place for nuance. The ban on “conspicuous” religious symbols is obviously unconstitutional.

There can be no question that it is a breach of the Charter’s guarantee of “freedom of conscience and religion” (s. 2(a)). As Justice Dickson (as he then was) said in R. v. Big M Drug Mart,  [1985] 1 S.C.R. 295,

[t]he essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.

And it does not matter whether some “official” interpretation of a religion says that “conspicuous” symbols are not mandatory. As the Supreme Court held in Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, if a person sincerely believes that she must wear the veil, or that he must wear the turban, then she or he has a constitutional right to do so.

Like all other Charter rights, the freedom of religion is “subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (s. 1). This means that restrictions on religious liberty must have some “pressing and substantial” objective, that they must be “rationally connected” to that objective, that they must be as limited as possible to achieve that objective, and that their overall positive effects must outweigh the negative ones. The ban on religious symbols will not pass this test.

The objectives invoked by the Québec government ― the need for common rules, state neutrality, and equality of men and women ― sound important enough. In any case, the Supreme Court has almost always been very deferential to governments at that stage of the test. The same is true of the “rational connection” stage. Yet here already, the government’s case might begin to crumble. It is by no means clear, for instance, how gender equality is served by prohibiting not only the veil (which even Bernard Drainville, the author of the government’s proposals, recognizes isn’t necessarily a symbol of oppression), but also the yarmulke and the turban, or indeed how banning Muslim women from the public service will advance the cause of their equality. Still, it is likely enough that courts will find that these measures are rationally connected at least to the objective of state neutrality, and also to that of having common rules.

The ban will, however, fail the “minimal impairment” stage of the test. Common rules, of course, can be permissive as well as restrictive. A blanket ban on religious symbols is by no means the least restrictive measure that can achieve this aim. As for state neutrality, it is important to note that the government, which bears the burden of proof under s. 1 of the Charter, has no evidence at all of any problems with the neutrality of civil servants or state institutions. (Much like Stockwell Day, who justified the federal government’s “tough on crime” legislative agenda by an alleged increase in “unreported crime,” Mr. Drainville claims that people are too reluctant to report such incidents.) The Supreme Court has sometimes “relied on logic, reason and some social science evidence in the course of the justification analysis” (Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, at par. 78), but, as Chief Justice McLachlin wrote in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, at par. 18, “one must be wary of stereotypes cloaked as common sense, and of substituting deference for the reasoned demonstration required by s. 1.” And the Québec government doesn’t even have the fig leaf of social science evidence which the federal government had in Harper. In addition, the blanket ban proposed by the government is overbroad, because it applies even to state employees who are not in contact with the public or could not be said, by any reasonable person, to represent the authority of the state (say school janitors or hospital cooks). At the same time, the fact that the government is willing to make exceptions for many employees suggests that a blanket ban isn’t actually necessary. In short, I fail to see how the government might succeed in demonstrating that the ban is “minimally impairing” of its employees’ rights.

Finally, when it comes to balancing the salutary and the deleterious effects of the policy, the latter clearly prevail. Because there is no real problem with a lack, or even a perception of a lack, of neutrality in state institutions. Furthermore, because of its patchwork nature, the ban achieves very little, except symbolically. On the other hand, those who challenge it will have no difficulty in demonstrating that its negative effects, notably in forcing people to choose between their faith and their employment ― a choice that will lead to people being forced out of their jobs ― will be considerable.

Thus it is quite clear to me that the ban on state employees wearing religious symbols is an unconstitutional violation of religious freedom. I am also pretty confident that it is a breach of equality rights protected by s. 15 of the Charter, because it has a disproportionate effect on the members of those religions whose symbols are “conspicuous,” which happens to exclude the numerically and politically dominant groups in Québec (the Catholics and the non-religious). Its burden falls squarely on minorities who have faced a history of discrimination, and the courts do not look kindly on such things.

The Québec government insists that it will not use the “notwithstanding” clause if and when it enacts the “Charter of values”, because it is confident that its constitutionality will be upheld. It will not be. Of course not.

UPDATE: Pour ceux qui voudraient lire une analyse en français, je recommande cet article de Radio-Canada explorant la question avec le doyen de la faculté de droit civil de l’Université d’Ottawa, Sébastien Grammond.

Challenging Succession

Parliament made many people unhappy when it enacted the Succession to the Throne Act, S.C. 2013 c. 6, “assent[ing] to” the British legislation allowing a woman to succeed to the Crown despite having a younger brother, or a person to succeed to the Crown despite being married to a Catholic. Among those unhappy was one Bryan Teskey, who rushed to challenge the law ― which has not yet come into force ― before the Superior Court of Ontario, on the basis that by not allowing a Catholic to succeed to the throne, the legislation infringed the equality guarantee of s. 15 of the Canadian Charter of Rights and Freedoms. Last week, the Court dismissed his challenge, in Teskey v. Canada (Attorney General), 2013 ONSC 5046, an interesting but, in my view, flawed, albeit ultimately correct, decision, Justice Hackland holding that Mr. Teskey’s challenge failed because it was not justiciable and because Mr. Teskey lacked standing to bring it.

The matter is not justiciable, says Justice Hackland, because the rules of royal succession are part of the Constitution, and one part of the Constitution cannot be used to challenge another. Justice Hackland points out that

[t]he prohibition against Catholics succeeding to the throne has been part of our law since the Act of Settlement, 1701.  This Act itself is an imperial statute which ultimately became part of the law of Canada.

And, in a prior challenge to the constitutionality of this prohibition, O’Donohue v. Canada, the Superior Court of Ontario had held (as summarized by Justice Hackland)

that the rules of succession are essential to the proper functioning of the monarchy and are therefore, by necessity, incorporated into the Constitution of Canada.  The structure of the Canadian Constitution as a constitutional monarchy … and the principle of sharing the British monarch, are fundamental to our constitutional framework with the result being that the rules of succession must be shared and in symmetry with those of the United Kingdom and other Commonwealth countries. (Par. 12)

Because the Charter cannot be used to abrogate or modify another part of the constitution, the case is simply not one that a court can entertain.

Furthermore, says Justice Hackland, Mr. Teskey lacks standing to challenge the Succession to the Throne Act. The Act obviously does not affect his own rights. Nor can he have public interest standing. His claim is not justiciable; it is not clear what his own interest in the matter is; and the issue he raises is purely hypothetical and lacks a proper factual matrix that could help the court address it. Mr. Teskey challenge thus cannot go forward.

This may well be the right result. On the issue of standing, it is, indeed, unclear whether Mr. Teskey, who represented himself, is an appropriate person to raise such a serious constitutional challenge. And Justice Hackland’s conclusion that royal succession is part of the constitution, and thus cannot be subject to the Charter is arguably correct ― but things are not so simple as he would have us believe.

First, though, a terminological quibble. I think that Justice Hackland is wrong to describe the argument that this case involves an attempt to apply the Charter to another part of the constitution as being about justiciability. Justiciability is a slippery concept, but it has to do with a court’s ability to answer the sort of question at issue in a case. The question here is the constitutionality of an Act of Parliament ― something the courts deal with all the time. Even if the Charter does not apply to that Act of Parliament, that does not mean that its constitutionality could not be called into question in a judicial proceeding, albeit on a different basis ― as indeed it is, a point to which I will come back shortly.

Now to the substance of Justice Hackland’s reasoning. He argues (as did Justice Rouleau in O’Donohue) that the rules of royal succession are part of the constitution because they were codified in the Act of Settlement, 1701, which, in turn, is somehow incorporated into the Canadian constitution by the Preamble of the Constitution Act, 1867, which refers to a “Dominion under the Crown of the United Kingdom of Great Britain and Ireland.” Actually, it is not at all clear that the Act of Settlement is really part of the constitution of Canada. The Supreme Court has never said it was, despite having ample opportunity to do so when discussing judicial independence, which the same Act first established in the United Kingdom. The Act of Settlement informs the interpretation of the constitution, including its underlying principles, but it is not clear that it is part of the constitution.

However, this might not matter much, because the rules of succession to the throne are arguably incorporated into the constitution not (only) through the Preamble of the Constitution Act, 1867, but by the entrenchment, in s. 41(a) of the Constitution Act, 1982, of “the office of the Queen.” Though the precise scope of the term “office” is not exactly clear, it arguably includes the rules on who can come to hold that office from time to time, at least in a case where, like with the monarchy, these rules are, arguably again, its defining characteristic. Justice Hackland, may well be right ― but not for the reasons he gave.

His being right, however would have interesting implications. If it is indeed the case that the rules of royal succession are part of the constitution of Canada, then it should follow that changing them requires a constitutional amendment. If these rules are part of “the office of the Queen,” then s. 41(a) of the Constitution Act, 1982, requires requires unanimous provincial consent to their amendment. This, I take it, is the substance of another constitutional challenge to the Succession to the Throne Act, launched by a group of academics and supported by the government of Québec. It may well be that, in dismissing one such challenge, Justice Hackland has given additional ammunition to another.

All Quiet on the Western Front

The confrontation between freedom of expression and protection of individual reputation by the law of defamation is as good an example of interminable global legal trench warfare as any. (Well, except in the United States, where one battle proved largely decisive in favour of free speech.) In Canada, freedom of expression has made some gains since the entrenchment of the Canadian Charter of Rights and Freedoms, but the protection of reputation has proven quite resilient, even scoring a rhetorical victory of its own when the Supreme Court dubbed it a “quasi-constitutional” right ― whatever that means ― last year in Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, [2012] 1 S.C.R. 636. Another battle of this war was recently fought in British Columbia, where the province’s Supreme Court, in Northwest Organics, Limited Partnership v. Maguire, 2013 BCSC 1328  rejected an attempt by defendants to impose additional burdens on plaintiffs for their defamation lawsuits to go forward.

The plaintiffs in Northwest Organics are a group of companies developing a composting facility. The defendants are a group of concerned local residents and activists, who have been campaigning against the building of the facility. The plaintiffs say the reports, pamphlets, and internet materials they have distributed as part of that campaign are defamatory. The defendants say the suit against them is a SLAPP ― strategic litigation against public participation ― intended to silence them.

The defendants sought to have the action dismissed, notably by asking that the Court apply a new test to defamation actions in which the defendant claims there is no genuine issue to be tried. In such cases, the defendants argued, interpreting the rules of civil procedure or the inherent powers of the court in accordance with the Charter value of freedom of expression should lead courts to require plaintiffs to show that the action is worth pursuing, despite the chilling effect it will have on the defendants’ freedom of expression, instead of defendants having to demonstrate that the case is frivolous or that there is no genuine issue to be tried (as is normally the case when a defendant seeks to have an action against dismissed). Plaintiffs could discharge this burden by showing that their claim “(a) is to compensate a significant injury to reputation; (b) has a significant likelihood of success, and (c) is the only practicable response to the alleged defamatory speech” (par. 28), a requirement which the defendants later abandoned.

Justice Savage refused to interpret the Supreme Court Civil Rules or the court’s inherent power in this way. Although, as all parties accepted, they had indeed to be interpreted in accordance with Charter values, such interpretation could not have the effect of changing substantive law. The Rules were enacted pursuant to a delegation of power to make rules with respect to procedure and evidence. A provision that dealt with substantive law would be ultra vires. Similarly, the superior courts’ inherent jurisdiction is meant to safeguard the integrity of the judicial process, but cannot be used to change substantive law. And that is precisely what the defendants were asking the court to do:

… [T]he defendants are proposing a substantive change to the law of defamation, not simply a change in the rules of civil practice. The substantive law, as it now stands, is that once the plaintiff commences its claim by asserting the publication of a defamatory statement, the onus shifts to the defendant to prove truth, to prove fair comment, to prove qualified privilege or to prove responsible publication. If the defendant pleads fair comment, then the burden lies on the plaintiff to prove malice. What the defendants are proposing are not changes to procedural rules that would apply only in the case of SLAPP lawsuits, but changes to the substantive law of defamation that go to the merits of those claims. (Par. 76).

In reality, the defendants seek to get rid of the presumptions of falsity and damage that have been part of the common law of defamation for centuries. “This,” says Justice Savage, “is not so much an incremental change to the common law as a wholesale change, something normally undertaken by the legislature or by higher courts with a full evidentiary record” (par. 80). It is too much for a court to read into the rules of procedure, and in the context of a motion without a full factual record to boot.

I think that Justice Savage is absolutely right. The presumptions that any person deserves a good reputation and is deprived of that right by defamatory publications are crucial to the way in which the law protects reputation ― a “quasi-constitutional” right, according to the Supreme Court’s latest pronouncement on the issue. To get rid of them, or to allow defendants to circumvent them by shouting “SLAPP!”, would effectively destroy the law of defamation ― an outcome which the Supreme Court has diligently (if not always elegantly) laboured to avoid. Indeed, one wonders if it is not precisely because they know this that the defendants here have sought to disguise frontal attack on the law of defamation as a mere procedural skirmish.

The law of defamation survives to fight another battle. But the grinding war between freedom of expression and the protection of reputations is certain to go on.

Vies Communes

Il y a quelques jours, je parlais des promesses que l’État peut ou ne peut pas exiger de gens à l’occasion de leur mariage. Cependant, dans les faits, les provinces de common law n’exigent pas que les gens qui se marient civilement promettent quoi que ce soit au sujet de leur vie future. Le Québec, lui non plus, n’exige pas de promesses ― il impose tout simplement les règles. Suivant l’alinéa 1 de l’article 374 du Code civil, « [l]e célébrant [d’un mariage] fait lecture aux futurs époux, en présence des témoins, des dispositions des articles 392 à 396 », qui réglementent « les droits et les devoirs des époux ». Or, il y a lieu, selon moi, de se demander si ces règles sont constitutionnelles.

C’est l’article 392 du Code civil qui est probablement le plus important ici, les suivants en étant, en partie, une sorte d’élaboration. Cet article dispose que

Les époux ont, en mariage, les mêmes droits et les mêmes obligations.

Ils se doivent mutuellement respect, fidélité, secours et assistance.

Ils sont tenus de faire vie commune.

Si le législateur avait sans doute le pouvoir d’adopter le premier alinéa, qui met en oeuvre, dans le contexte du régime juridique du mariage, le droit à l’égalité garanti par la constitution, les deuxième et troisième alinéas me semblent plus douteux.

Ainsi, il me semble qu’imposer un devoir de « respect » heurte le droit à la liberté de la pensée et d’opinion protégé par l’article 2(b) de la Charte canadienne des droits et libertés. Le gouvernement pourrait certes tenter de justifier cette atteinte en vertu de l’article premier de la Charte, au nom de quelque chose comme la promotion de l’harmonie familiale, mais je ne suis pas sûr qu’un objectif aussi vague justifie le contrôle non seulement d’actes, mais aussi de la pensée des individus.

L’imposition d’un devoir de fidélité me semble aussi constitutionnellement douteuse, comme je l’ai dit dans mon précédent billet.  Le droit à la liberté protégé par l’article 7 de la Charte ne s’étend pas seulement à la liberté physique. Comme l’a conclu la Cour suprême dans Blencoe c. Colombie-Britannique (Human Rights Commission), 2000 CSC 44, [2000] 2 R.C.S. 307, au par. 49, il « est en cause lorsque des contraintes ou des interdictions de l’État influent sur les choix importants et fondamentaux qu’une personne peut faire dans sa vie ». Comme l’explique la Cour suprême dans les paragraphes suivants, ces choix importants et fondamentaux incluent, par exemple, l’éducation et les soins que les parents donnent à leurs enfants, la décision d’une femme d’avorter (une position d’abord défendue par la seule juge Wilson dans R. c. Morgentaler, [1988] 1 R.C.S. 30) ou même le choix de « flâner » dans un certain lieu. Il me semble plutôt évident que les choix qu’une personne fait dans sa vie sexuelle et amoureuse en font également partie, et que, par conséquent, l’imposition d’un devoir de fidélité porte atteinte à l’article 7 de la Charte. Comme de telles atteintes ne sont pratiquement jamais justifiables en vertu de l’article premier, elle est inconstitutionnelle.

Il en va de même, selon moi, de l’obligation « de faire vie commune » imposée par le 3e alinéa de l’article 392 du Code civil. L’expression « vie commune » pourrait peut-être avoir un sens abstrait aussi bien que concret, mais le texte anglais de cette disposition (« [the spouses] are bound to live together ») et peut-être aussi la référence au choix commun de la résidence familiale à l’article 395 me semblent indiquer que c’est bien le second que le législateur lui donne. (En pratique, cette disposition semble surtout être invoquée comme motif de nullité de mariage par lesquels un des époux visait, à l’insu de l’autre, d’acquérir le statut de résident permanent au Canada, un contexte qui ne nous renseigne pas nécessairement sur son sens précis.) Or, l’État peut-il forcer des personnes de « faire vie commune », c’est-à-dire de vivre ensemble? Encore une fois, il me semble qu’il s’agit d’un de ces choix importants, fondamentaux et personnels avec lesquels il ne peut interférer. Un arrêt de la Cour suprême, Godbout c. Longueuil (Ville)[1997] 3 R.C.S. 844, est pertinent ici. La Cour y a conclu à l’invalidité d’un règlement qui obligeait les fonctionnaires de Longueuil à résider dans la municipalité. La Cour a unanimement conclu que le règlement violait l’article 5 de la Charte des droits et libertés de la personne (qui s’applique évidemment au Code civil), qui protège le droit à la vie privée. Trois juges ont également conclu que le règlement violait l’article 7 de la Charte canadienne (les autres ont préféré ne pas se prononcer sur la question). La question n’est pas tout à fait identique, mais je crois que si l’État ne peut dicter à un fonctionnaire vivre, il ne devrait pas pouvoir dicter à des citoyens qu’il doivent vivre avec leur époux. Certes, la grande majorité des couples mariés choisira de vivre ensemble. Cependant, les circonstances personnelles peuvent varier, surtout dans ce monde où les gens doivent souvent se déplacer pour le travail ou les études. Le législateur n’a aucun droit de regard sur les choix que font les gens dans ce contexte.

Ce qui me semble être l’inconstitutionnalité plutôt claire de certaines obligations imposées par le Code civil au époux illustre le que, si le droit est souvent, et à juste titre, le reflet des pratiques courantes de la société, il ne peut l’être toujours. On ne peut toujours ériger la normalité (entendue dans un sens sociologique, mathématique, de la pratique du plus grand nombre) en norme. Il ne faut pas régler la vie commune sur les vies communes.

The Crown and the Oath

A friend comments on my earlier post, in which I argued that the oath of allegiance to the Queen which would-be Canadian citizens are required to swear is unconstitutional:

The wording of the oath of allegiance found in the Citizenship Act flows directly from the preamble and various sections of the Constitution Act, 1867 which clearly established the Queen as the head of state and Canada being a nation under the Crown. One part of the constitution cannot (the Charter) cannot be used to attack an act that is clearly authorized by another part of the constitution. The courts used this reasoning to dismiss attacks on separate Catholic School boards before. On a more basic level, it’s inconceivable that an oath of allegiance to the constitutionally appointed head of state can be found to be unconstitutional. You might say that is a tautology.

With respect, I think this is wrong.

It is true, as my friend says, that one part of the constitution cannot be invoked to challenge another. So, for instance, the Supreme Court has held in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, that the Charter did not apply to an exercise of Parliamentary privilege, because privilege is itself a part of the constitution. For the same reason, as my friend points out, courts have rejected Charter-based challenges to Catholic schools. That example illustrates the precise ― and fairly narrow ― scope of this doctrine. Catholic schools are specifically protected by subs. 93(1) of the Constitution Act, 1867. Their existence is effectively made part of the constitution.

The oath of allegiance is not. The Crown is part of the constitution of course (it is the nominal holder of the executive power pursuant to s. 9 of the Constitution Act, 1867 and a constituent component of the legislative power, pursuant to s. 17). But the Constitution Act, 1867 nowhere mentions or even implies the existence of an oath of allegiance for new citizens. It does mention oaths to be taken by voters (ss. 41 and 84), Lieutenant-Governors (s. 61), and members of Parliament and provincial legislative assemblies (s. 128) ― but not new citizens, even though it specifically contemplates “naturalization” as a legislative power of Parliament (s. 91(25)).  This suggests that the oath of allegiance is a mere creature of statute, and thus fully subject to the Charter.

As to my friend’s “more basic point,” it is similar to what the majority of the Federal Court of Appeal Roach v. Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 F.C. 406, seems to be saying:

Of course, the total consequences of the swearing or affirming of these twenty-four words (as opposed to their nominal burden) are not at all trivial. Not only are the consequences as a whole not contrary to the Constitution, but it would hardly be too much to say that they are the Constitution. They express a solemn intention to adhere to the symbolic keystone of the Canadian Constitution as it has been and is, thus pledging an acceptance of the whole of our Constitution and national life. The appellant can hardly be heard to complain that, in order to become a Canadian citizen, he has to express agreement with the fundamental structure of our country as it is.

But I do not think that the equation of the oath of allegiance to the Queen with the Crown and the constitution itself works. Not every country requires oaths of allegiance to the head of state as opposed to the state itself or its constitution. The United States do not require its citizens to swear allegiance to the president. Even a country with “a constitution similar in principle” to Canada, Australia, does not require new citizens to swear an oath of allegiance to the Queen. Now if Canada also required an oath to the constitution and somebody challenged it on the basis that the constitution is monarchical, the argument might have more strength. As it is though, I do not think that it succeeds.

Empty Promise

I wrote yesterday about the challenge now being considered by the Superior Court of Ontario to the constitutionality of the wording of the oath of allegiance that would-be Canadian citizens must swear or affirm. The oath requires one to promise loyalty and fidelity to the Queen, her heirs, and successors. As I explained, the Federal Court of Appeal rejected a similar challenge almost 20 years ago, in Roach v. Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 F.C. 406 . But Charter jurisprudence has developed a good deal since then. Enough to make the new challenge succeed? Maybe not, but I tend to think it should.

The claimants argue that requiring them to pledge faithful allegiance to Queen as a condition for granting them their Canadian citizenship is a violation of their fundamental freedoms of conscience and religion, opinion and expression, assembly, and association, protected rights under the various subsections of s. 2 of the Charter, and of their equality rights under s. 15. Some of these claims strike me as implausible. This is especially the case of the argument based on freedom of assembly ― I have a hard time seeing how it might be implicated, especially in any way distinct from freedom of speech and association. The claim based on the freedom of association, in turn, also seems largely derivative of the one based on freedom of opinion and expression.

The equality claim, at first glance, might seem more serious. People born into Canadian citizenship are not required to swear the oath of allegiance as people who seek naturalization are. This might be treated as a distinction on the ground of citizenship, which the Supreme Court has long held was “analogous” to those specifically mentioned in s. 15 and thus an impermissible ground of discrimination. In his dissent in Roach, Justice Linden suggested that the oath requirement might amount to discrimination between anti-monarchists who want to become citizens and those who already are and thus need not swear allegiance to the Queen. But keep in mind that the claimants are not saying that requiring them to take the oath is in itself discriminatory. On the contrary, they emphasize the fact that they are prepared to take an oath to respect Canadian laws ― just not an oath to be faithful to the Queen. Their objection is thus not really to a distinction between citizens and non-citizens, but to the content of oath. This is not a claim about equality.

The essence of the claim is, in my view, somewhere at the intersection of the freedom of expression and freedom of conscience. The claimants say that they are made to say something that they do not believe and that will bind them in conscience not to express or act on their beliefs in the future. I think that it is at least arguable that this is a breach of subs. 2(b) (expression) and 2(a) (conscience) of the Charter.

A case that comes to mind on this point is Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, in which an arbitrator ordered the appellant to provide the respondent a reference letter the terms of which were specified by the arbitrator. The Court agreed that this order breached the appellant’s freedom of expression. Over a vigorous (and in my view compelling) dissent by Justice Beetz, the majority of the Court said that the breach was justified under s. 1 of the Charter, but one important point in its reasoning was that the compelled statements were limited to largely uncontested facts ― the appellant was not made to state an opinion. Of course the context of this case (a labour arbitration) is quite different from that of the citizenship oath, but I think it is relevant nonetheless.

There are also two serious arguments against the applicability of subs. 2(b) and 2(a) here.

One is that the applicants aren’t actually compelled to take the oath. They do not have to become citizens. If they do not want to take the oath, they can simply go on living in Canada as permanent residents, as the late Mr. Roach did until his death. Indeed, it might be said that citizenship is not a right but a privilege, so one cannot complain about the terms on which it is granted. The latter argument would be mistaken though. Surely it would be unconstitutional for Parliament to bar people from being naturalized on the basis of, say, their race or national origin. Why then could it do so on the basis of their political opinions? But it remains the case that coercion is not so clear in this situation as it was, for instance, in Slaight. Yet I’m not sure that that should matter. The Citizenship Act speaks of a “right to citizenship”, and provides that “[t]he Minister shall [emphasis mine] grant citizenship to any person who” meets the statutory conditions. The taking of the oath is a requirement that a person who is already entitled to citizenship must fulfill. In the United States, if I understand correctly, there is a doctrine of “unconstitutional conditions” that prevents legislatures from restricting people’s rights as a condition to obtaining something to which a statute otherwise entitles them. The Supreme Court of Canada, so far as I remember, has never considered such a doctrine, but it is at least arguable that it should be part of our law too.

The other argument against the claimants is that, as the majority of the Federal Court held in Roach, they simply misconstrue the oath and its import, and that, understood correctly, it is nothing more than an expression of loyalty to the existing constitutional order, which would not prevent the claimants from continuing to work for a constitutional change that would transform Canada into a republic. I think this argument has great force. The Queen and the Windsor dynasty are only symbols for the government and the constitution. It is in this capacity, for example, that the Queen is named as a party to every criminal case. She does not personally rule, so there is no way in which a Canadian citizen might be meaningfully said to be loyal or disloyal to her, rather than to the government or the Constitution. One might also add that the claimants accept to swear an oath to respect Canadian laws ― yet chances are that they find at least a few of those unjust. That doesn’t prevent them from swearing the oath and then working to have those laws changed. Why is monarchy different?

The problem with this argument is that, reasonable though this interpretation of the oath might be, it is not that of the claimants. And, in matters of religion, the Supreme Court has held (rightly in my view) that it is not some officially correct or objective view of religious duty that courts must apply ― it is the claimant’s own view of his or her duties, provided that it is sincerely held. If this rule is extended to matters of (non-religious) conscience, then we must accept the claimants’ position, which is surely sincere even if unreasonable, that the oath would bind them in conscience to stop their anti-monarchist activities, and thus is a breach of their freedom of opinion and expression.

Thus I am actually inclined to think that the oath requirement should be found a breach of subs. 2(a) and/or 2(b) of the Charter, though I suspect that courts might be loth to reach this conclusion. Of course, even if they do, there still remains the possibility of a justification under s. 1 of the Charter, that would “save” the infringement of the claimants’ rights and make it constitutional. Indeed, in most cases under subs. 2(a) and 2(b), that’s where “the action” really is.

But this case is different, I believe. Monarchist though I am, I fail to see any good arguments that the government might invoke to justify the current wording of the citizenship oath. To begin with, it’s not even clear whether the oath serves any “pressing and substantial” objective, the first prong of the s. 1 test. Whatever purpose the oath serves is evidently not so pressing as to make it mandatory for the vast majority of Canadians who are simply born into their citizenship. Even if the oath has some kind of symbolic purpose such as expressing the importance of citizenship, it is not clear how the reference to the Queen specifically is connected to that purpose. As a matter of both law and practical reality, we are citizens of Canada, not subjects of Her Majesty (as was the case before the introduction of the Canadian citizenship distinct from the status of British subject in 1947). Finally, the current oath is not surely not minimally impairing (assuming, of course, that it is at all impairing) of the claimants’ rights, since even Australia, a fellow Commonwealth realm of which the Queen is the head of state ― does not require an oath of loyalty to the Queen.

Enough. As I suggested above, I wouldn’t bet on the citizenship oath being found unconstitutional, but I think that it is a close and difficult question. On balance, I believe that the claimants should prevail. The oath either means too little or requires too much. Either way, it is an empty promise.