Defying Shame

A number of institutions in Québec, notably Montreal’s Jewish General Hospital and the English Montreal School Board, have announced their intention to defy the Charter of Shame prohibiting their employees from displaying “conspicuous” religious symbols ― if, that is, the Charter is ever enacted. In other words, these institutions are threatening to engage in civil disobedience, in response to what they see as a law that goes against their core values. Although I fully agree, and have argued at length in previous posts too numerous to link to, that this law would be a great iniquity, I think that institutional civil disobedience in response to it would raise difficult questions, which have not so far been discussed.

Some of these questions are of the kind anyone who considers engaging in civil disobedience ought to address. The most general and fundamental one is what is it that justifies one in defying democratically enacted law. Of course, that question has been answered before ― perhaps most famously by Henry David Thoreau and Martin Luther King Jr. Interestingly, both Thoreau and King gave fairly elaborate (and quite different) explanations of what they regarded as the government’s proper role, in addition to saying why they thought the governments to which they were subject strayed so far from it as to justify disobedience. However vague, these explanations make it possible to judge their actions. As has been said on a grander but similar occasion, “a decent respect to the opinions of mankind requires that they should declare the causes which impel them” to take the positions they do.

But there is also a more specific question to be answered by those who would defy the Charter of Shame. Are they justified in engaging in civil disobedience in a situation where they can, instead, address themselves to the courts and have the law they intend to defy struck down? Thoreau’s differences with government of the United States were not of the justiciable kind; King faced a judiciary that was unwilling to give him the justice to which he was entitled under the U.S. Constitution. By contrast, there is every reason to believe that the The Charter of Shame will be invalidated by the courts. Why break the law, then, rather than use the procedure it puts at one’s disposal to obtain the result one seeks? It is a quicker way to that result, perhaps, but if one believes in the Rule of Law, must one not sometimes take the longer, but lawful road? It is one thing to engage in civil disobedience when that road is blocked; it is another one, and arguably subject to a heavier burden of justification, to do it when the road is wide open.

And then there questions which arise because those who now proclaim their intention to defy the Charter of Shame are not individuals, but organizations. Does it even make sense for an organization to engage in civil disobedience? Civil disobedience is closely linked to conscience ― and a organization might not have a conscience, as we are frequently reminded these days by those, on the American left, who angrily insist that corporations can have no right to free speech or free exercise of religion. Now, Thoreau at least had no doubts in this respect (though the point, I think, is rather tangential to his argument): “[i]t is truly enough said,” he wrote, “that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience,” and I am inclined to agree with him. However, this position is not entirely free from difficulties, some of them similar to those I discussed here. And note that my rhetorical move of speaking of limits on the government rather than individual rights, which I suggested as a solution to the corporate rights conundrum, does not work in the case of civil disobedience, which is very much an exercise of individual freedom, not the imposition of a limit on the government.

Perhaps more importantly, though, even if one concludes, as I think one should, that organizations ― Thoreau’s “corporations with a conscience” ― can, in abstracto, engage in civil disobedience, one should still think about their moral responsibilities in doing so. A person who engages in civil disobedience must be prepared to go to prison for it, as Thoreau and King were. But if such a person is indeed put to prison, the cost of his standing on his conscience is borne by him alone ― and maybe by his family. An organization such as the English Montreal School Board or the Jewish General Hospital cannot be imprisoned. But they can be deprived of funding, and perhaps even dissolved, both of which would hurt their employees whom they are trying to defend, and the people taking care of whom is their main job. As a quip in Soviet times had it, “Galileo’s neighbour scientist also knew that the Earth moved, but he had a family.” A principled stand that is commendable in a solitary individual like Thoreau, might not be for those with responsibilities to others, and especially for organizations with responsibilities to thousands of vulnerable people.

All that is not to say, conclusively, that the English Montreal School Board and the Jewish General are wrong ― only that their position raises questions worthy of serious thought. Of course, it may well be that this position is nothing but posturing, cost-less so long as the Charter of Shame is not enacted, which hopefully it never will be. But it might be, alas, and anyway, civil disobedience is a serious matter, which should not be threatened, I think, without having thought through its moral implications.

Say It Ain’t So

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., [1986] 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, [2004] 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, [1989] 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.

Swearwords

I have written at great length recently about a challenge, now before the Superior Court of Ontario, to the constitutionality of the requirement that would-be Canadian citizens swear an oath of allegiance to the Queen (my posts on the topic are all here). For those who want to read more on the topic, Liav Orgad’s recent paper called “Liberalism, Allegiance, and Obedience: the Inappropriateness of Loyalty Oaths in a Liberal Democracy” is both timely and very interesting. As the title suggests, Prof. Orgad argues that oaths of allegiance ― whether to the Queen, to the nation, or to the constitution ― are something liberal states should not be requiring of their new citizens (or anyone else). It is a rather more radical argument than that advanced by the applicants in the current challenge, and deserves careful consideration.

Prof. Orgad observes that the requirement of an oath of allegiance as a part of the process of naturalization is a widespread one, although the oaths themselves are quite varied. Yet it is not quite clear what the purpose of the oath is. It stands to reason that “the fact that nations require loyalty to an object implies that a difference exists between allegiance and obedience to the law. Both citizens and noncitizens must obey the law yet only citizens owe an additional duty of allegiance” (6). But both the meaning of the concept of allegiance and the significance of an oath in this context are not obvious. Prof. Orgad argues that allegiance means “devotion to the best interest of” as well as “identification” with its object; it involves treating its object as paramount over one’s other duties and interests. It is a very onerous duty. As for the oath, it can mean (and has historically been understood as) one of three things: an expression of a contractual undertaking; a “political test”; or a “symbol of nation-building.” Yet it is not particularly clear which of these meanings the modern oaths of allegiance have, and thus just what purpose they serve.

Furthermore, argues prof. Orgad, while the purpose and thus the benefits of the oaths are uncertain, their drawbacks are significant. First, they are problematic from a Rule of Law standpoint, because they are so vague that the oath-taker cannot really know what obligations he or she incurs as a consequence of taking one. Second, they infringe the oath-taker’s freedom of conscience. An oath is not just “a command what to do” but “a command what to believe” (30); it works not only in the realm of action (as a law’s prescriptions do) but also in the realm of morality. And third, oaths discriminate between naturalized and natural-born citizens, subjecting the thoughts and actions of the former to scrutiny which the latter avoid, with potentially dire consequences.

Prof. Orgad’s final verdict is, accordingly, damning:

 It is not clear enough what loyalty is, why it is justified politically, and why it is legitimate to be burdened with a duty of loyalty as distinct from the duty to obey the law. Neither is it clear what moral goals loyalty oaths serve nor whether any empirical evidence supports the idea that oaths rationally serve their putative purpose. In light of that, it may be the right time to say goodbye to loyalty oaths as a legal institution. (34)

There is much that is interesting in this article; it would not have been possible for me to cover it all here, especially the rich historical details. (For those interested in the history of the use and abuse of the citizenship oath in the United States, I heartily recommend an excellent book that I ought to have mentioned earlier, The Sovereign Citizen by Patrick Weil. I should add, for transparency’s sake, that I know prof. Weil and have done some work for him, including a little ― very little ― for this book.)

I do have a couple of objections to prof. Orgad’s arguments. The first is that he seems to assume that, whatever its exact meaning, loyalty or allegiance is an onerous, momentous obligation. It might not be. As I explain in my prior posts, the majority of the Federal Court of Appeal in Roach v. Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 F.C. 406, thought that the oath of allegiance to the Queen was little more that an acknowledgement of the current constitution, which did not prevent the person who took it to work for constitutional change. Prof. Orgad recognizes this possibility (31), but perhaps does not give it enough attention. Somewhat similarly, my second objection is that prof. Orgad seems to take it for granted that taking an oath of allegiance imposes an actual legal obligation, albeit one the contents of which is ill-defined. This has sometimes been the case, as in the American examples he invokes (and which prof. Weil discusses in greater detail), where citizens were “de-naturalized” for having been Communists, Nazis, or pacifists ― in contravention, it was said, to their oath of allegiance to the constitution of the United States. But, as prof. Weil explains, such de-naturalizations are no longer possible in the United States; nor are they possible in Canada. Any obligation one incurs as a result of taking an oath of allegiance might be symbolic, or at least conscientious, but not legal, which would undermine, at least to some extent, prof. Orgad’s arguments based on the Rule of Law and also on equality. In any case, despite these quibbles, prof. Orgad’s paper is most interesting, and his arguments based freedom of conscience are, in my view, very persuasive.

An interesting question is how they might affect the current challenge to the Canadian citizenship oath. Prof. Orgad’s paper will be published in the Canadian Journal of Law and Jurisprudence, and may well be read by judges deciding the case, especially if it makes its way to the Court of Appeal and the Supreme Court. The “problem” is that it proves rather more than the applicants want. They insist that they are fine with a citizenship oath, so long as the Queen is no part of it. This might seem like a prudent position ― it is usually best to make one’s arguments the least radical possible ― but Prof. Orgad shows that a court adopting it would be making an unprincipled compromise. At the same time, a court presumably cannot go further than the applicants ask and strike down the citizenship oath completely. I’m not quite sure what the way out of this conundrum is.

In any event, prof. Orgad’s paper shows, I think, that oaths of allegiance are like swearwords ― significant yet meaningless, and not something to be said in polite company.

H/T: Larry Solum

Ask Not

I have written more than enough about the oath of allegiance to Queen that would-be Canadian citizens have to take, but I have thought of an analogy that I like and which just might help us think the matter through. The Canadian citizenship is like marriage ― not necessarily in some romantic or esoteric way, though there is perhaps that too ― but in that it is a legal status into which anyone who fulfills some conditions prescribed by law is entitled to enter upon making a solemn, public statement before an official. For citizenship, the statement in question is the oath of allegiance. For marriage, it is the exchange of vows. The text of both the oath and the vows (for civil marriage) is prescribed by statute.

So let’s assume that the vows prescribed for civil marriage include a promise of fidelity, as the vows prescribed for religious marriages do. And imagine a couple of swingers who want to get married ― but keep their swinging lifestyle. The state tells them they must promise to be faithful to each other ― otherwise, no marriage. Would they be justified in challenging the constitutionality of the vows the state imposes on them, arguing that they could not in good conscience keep their preferred lifestyle after making such vows? (I am assuming that swinging in itself would be constitutionally protected by the liberty guarantee of s. 7 of the Charter ― just as “loitering” is: see R. v. Heywood, [1994] 3 S.C.R. 761.) Some might say that the vows of fidelity, properly understood, do not preclude a swinging lifestyle with the consent of the other spouse. But, as I explained yesterday, the Supreme Court has held that courts must respect people’s understandings of their conscientious duties. That holding, in Syndicat Northcrest v. Amselem2004 SCC 47, [2004] 2 S.C.R. 551, was in a religious context, but I’m not sure that there ought to be a difference here. What we are talking about is a solemn vow, not just a business contract (for which a court can impose its own interpretation on a party). I, for one, would be inclined to think that the such a constitutional challenge should succeed.

Now as it happens, the solemn statement required of a party to a civil marriage in a Canadian province contains no promise of fidelity or indeed any other vow. (Ontario’s, which seems fairly typical of common law provinces, only says “I do solemnly declare that I do not know of any lawful impediment why I, AB, may not be joined in matrimony to CD.”) I know very little about family law, so I have no idea whether there is a particular reason why, unlike the religious vows, this statement does not contain any promises, but perhaps this is for the reason I am trying to get at with my analogy: the state should not extract any promises from citizens, beyond of course a standing undertaking to keep the law. Since there is no law against swinging or adultery (and if there were, such a law would surely be unconstitutional), the state would not be justified in demanding that people forbear from it as a condition for acquiring a status that is otherwise open to them.

I think it is the same for citizenship. Since not feeling “true allegiance” to the monarchy is not against the law, the state should not be imposing it as a condition for acquiring it. Whether or not you like swingers and republicans, there are things you ought not to be demanding of them.

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.

True Allegiance

When I became a Canadian citizen, more than 10 years ago now, I had, a according to the Citizenship Act, to affirm

that I [would] be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.

(The requirement to make this affirmation or to swear an oath is flows from par. 3(1)(c) of the Act; the text is in the Schedule.)

Most new citizens are probably not very enthusiastic about swearing allegiance to Her Majesty; I certainly wasn’t at the time, though my views have since changed. But a hardy few outright refuse to swear the oath, and are trying to challenge its constitutionality, as the Globe and Mail reports.

It is, in a way, an old story. Charles Roach, who led the effort to have the oath declared unconstitutional until his death last year, had his first attempt to do so struck by the Federal Court of Appeal in Roach v. Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 F.C. 406, as disclosing no reasonable cause of action. More than a decade later, Mr. Roach and a number of others renewed the attack, this time in the Superior Court of Ontario. This time, the challenge was framed as a class action on behalf of all those “who for reasons of conscience, object to taking an oath of allegiance to her Majesty … and who because of their said objection have not become citizens of Canada or became citizens by taking the oath under duress.” The federal government failed in its attempt to have their application struck, while the applicants’ attempt to proceed by way of class action was denied in Roach v. Canada (Attorney General), (2009) 185 CRR (2d) 215. That decision, if I understand correctly, also struck their claim for damages.

What is left, then, at least if there have been no substantial amendments to the application in the intervening four years, is a claim that the oath as it is set out in the Schedule to the Citizenship Act is a violation of the “fundamental freedoms” protected by s. 2 of the Canadian Charter of Rights and Freedoms (freedom of conscience and religion; freedom of thought, belief, opinion and expression; freedom of assembly; and freedom of association), and of the equality guarantee in s. 15(1) of the Charter (amounting to discrimination between citizens and non-citizens, the latter not having to swear allegiance to the Queen in order to enjoy the benefits of citizenship). According to the Globe, the applicants say that they are quite willing to swear to observe Canadian laws, but, because of political or religious convictions, will not swear an oath to the Queen.

***

I will say a few words here about the Federal Court of Appeal’s 1994 Roach decision, and will try to have some substantive comments on the merits of the new challenge in a separate post.

The Court of Appeal was split, with Justice MacGuigan writing for the majority and Justice Linden dissenting. The dissent is rather more elaborate than the brief majority judgment, so it is worth starting with it. It is important to keep in mind, however, that because the case was an appeal from a motion to strike, the question was only whether it was plain and obvious that the Charter challenge had no chance of success, so Justice Linden’s opinion that it was not does not necessarily mean he thought Mr. Roach should ultimately prevail.

Justice Linden’s observes that

[a]n oath or affirmation … is not a matter to be taken lightly; when, for reasons of conscience, a person feels he or she cannot swear a certain oath or make a certain affirmation, one must carefully consider that position, for it shows that that person takes the oath seriously, something we wish to support.

As for Mr. Roach’s claims, he would have held that it is not “plain and obvious” that the oath of loyalty to the Queen does not prevent its taker from holding, expressing, and acting on anti-monarchist beliefs, even though such an interpretation (which the majority endorses) “makes sense”; thus there is at least a chance that a claim based s. 2(b) of the Charter, which protects the freedom of opinion and expression, would succeed. Similarly, Justice Linden thinks there is at least a chance that Mr. Roach would prevail in his freedom of association claim, on the basis that taking the oath would prevent him from associating with fellow republicans. Finally, Justice Linden would also have let stand the claim that the oath breached the Charter’s equality guarantee (s. 15), because the oath is only required of would-be naturalized citizens, and not of people born in Canada. He agrees with the majority in rejecting claims based on freedom of conscience and religion, freedom of assembly, and protection against cruel and unusual punishment.

The majority, however, concludes that none of Mr. Roach’s claims had any chance of success. It holds that

the oath of allegiance has to be understood to be binding in the same way as the rest of the Constitution of Canada not forever, nor in some inherent way, but only so long as the Constitution is unamended in that respect [and that] [i]t is a matter of common sense and common consent that it is neither unconstitutional, nor illegal, nor inappropriate to advocate the amendment of the Constitution.

The oath thus only binds the person who takes it to respect the constitution as it stands at the time the oath is taken, while leaving him or her entirely free to advocate change, at least so long as the change would be done in accordance with the constitution itself. Thus the “fundamental freedoms” claims have no chance of success. Nor does the equality claim. For one thing, the burden of actually taking the oath is trivial. For another, since the oath does not curtail one’s freedom to work for constitutional change,

what our country may come to be …  is for millions of Canadian citizens to work out over time, a process in which the appellant can himself share, if he only allows himself to do so.

The disagreement between majority and dissent, then, is largely about the import of the oath. What does it mean to “be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second”? And, importantly, does it matter that the person who refuses to take the oath takes a different view of what it entails than Parliament and/or the judiciary? These are not easy questions. I will try to have more to say about them, and the others that the case brings up, shortly.

Religious Freedom Is (a) Right

The Globe’s Doug Saunders has produced a very unfortunate op-ed this morning, arguing that “religious freedom” is at best redundant, at worst positively harmful, and that Canada should not be in the business of promoting it. The occasion for his outburst is the upcoming creation of the Office of Religious Freedom within the Department of Foreign Affairs. That may well be a poor idea, even a sop by the government to religious conservatives. Even if Canada should be in the business of promoting individual rights abroad, there is no reason why religious freedom should be privileged over other fundamental liberties. Yet Mr. Saunders’ arguments are confused and go too far. It is one thing to say that the Office of Religious Freedom is a bad idea; it is another to claim, as he does, that “religious freedom” is either a useless concept or a slogan for religious bigotry and repression.

Mr. Saunders points out that “[t]he phrase ‘religious freedom’ is evoked [sic―I wonder if he meant ‘invoked’]” by all manner of intolerant groups who, in fact, want the state to repress other religious groups with whom they disagree. He argues that “the most important religious freedom is freedom from religion”―the freedom not to have someone else’s religion imposed on you by the state. As for the freedom of belief and worship, it is sufficiently “protected in constitutional freedoms of speech, thought, conscience, assembly and basic equality.” The additional category of “freedom of religion” is hopelessly vague and in any event unnecessary. Indeed, says Mr. Saunders,

the core values of our common culture, the things that make us Western and modern – democracy, equality, the rule of law – were forged through the rejection of religion and the overthrow of spiritual authority.

If there’s anything we should be doing abroad, he concludes, it’s ensuring the separation of church and state. Not fighting for “religious freedom,” whatever that means.

One wonders whether Mr. Saunders has seriously engaged with what has been said and written about religious freedom in the last 300-odd years. His claims about the history and meaning of religious freedom are badly mistaken.

Start with the history. It is not the case that democracy, equality, and the Rule of Law developed in opposition to religion. Arguably the most influential defender of such values was also one of the first great champions of religious freedom―John Locke. So were the American Founders. It would have been much more accurate to say that these values developed in parallel, indeed that religious freedom was historically the first individual freedom. The sovereignty of the individual was first asserted in matters of faith, well before it was thought of asserting it in the realm of politics too.

Now to the meaning of “religious freedom”. Like that of any other individual right, it can be said to be vague. It is not exactly clear what “freedom of expression” means, or “equality”, or “liberty”. That said, it is indisputable that freedom of religion has a negative aspect―that it is, among other things, a right not to have the faith of others imposed on you. The very first Supreme Court case dealing with freedom of religion, R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, was about that. Other rights, by the way, have a similar “negative” aspect―freedom of speech, for instance, is (or should be, notwithstanding the Supreme Court’s decisions to the contrary) not just the freedom to say what you want, but also the freedom not to say what the government wants you to say. That doesn’t detract from the importance of the “positive” side of the right. In the case of religion, we might speak, following the U.S. First Amendment, of the “free exercise” of religion, to go along with non-establishment. And free exercise of religion is not reducible to the other rights on which Mr. Saunders wants to rely for its protection (except maybe freedom of conscience, but this happens (unfortunately) to be poorly theorized and, insofar as it has a modicum of clear meaning, it refers to a protection for specifically non-religious conscientious beliefs). For example, the Sikh boy who felt a religious duty to wear a kirpan to his public school wasn’t exercising a right to free speech (his kirpan was hidden inside his clothing, he wasn’t displaying it to send a message to anyone), or freedom of association (it wasn’t about his right to associate with coreligionists, or anyone else for that matter). It was straightforwardly a claim of religious freedom―a claim, in Lord Acton’s words, “to be unhindered by man in the fulfillment of duty to God.”

That such claims by others can be abusive or self-serving does not mean that we should renounce our commitment to religious freedom. Whether it is a good idea to single it out for promotion abroad is an entirely separate question.