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.

As Expected

The Superior Court of Ontario has ruled yesterday that the Canadian citizenship oath, which requires would-be citizens to promise “allegiance” to the Queen, is constitutional, thus rejecting the challenge of a group of anti-monarchists who argued that it infringed their freedoms of speech and of religion, as well as their equality rights under the Canadian Charter of Rights and Freedoms. The decision, McAteer v. Canada (Attorney General), 2013 ONSC 5895, is quite interesting, though I think it is ultimately wrong. I will summarize it in this post, and then discuss my own take on it in a separate one.

Justice Morgan notes that the citizenship oath requirement imposes a real burden on those who refuse to take the oath and are, for that reason alone, unable to become citizens. The applicants’ opposition to the oath (in its current form) is sincere, and they would have to make a statement with which they deeply disagree in order to become citizens. The government’s claim that this isn’t a real burden at all since they are able to go on living in Canada indefinitely as permanent residents is “surprising” (par. 26).

Furthermore, it does not matter that there is no “right” to citizenship, or that obtaining citizenship is something people would be free to do but for the government’s interfering with their freedom. The applicants are not asking for an entitlement to citizenship, but only for the removal of an obstacle to their getting something for which they would otherwise be qualified. In any case, “the courts have already determined that citizenship criteria are subject to Charter scrutiny” (par. 32). The government cannot make Canadian citizenship “a prize” for giving up a Charter right (par. 32).

The right at issue here is freedom of expression. This includes not only being able to say what one pleases, but also to refrain from saying something one doesn’t want to say ― silence can be a form of very eloquent expression. By forcing the applicants to say something they would rather not say in order to obtain citizenship, Parliament has infringed their freedom of expression guaranteed by s. 2(b) of the Charter.

The question then becomes whether this infringement can be saved under s. 1 of the Charter as a “reasonable limit[] … demonstrably justified in a free and democratic society. Justice Morgan holds that it can.

He begins his s. 1 analysis by asserting that, although the burden of proof at this stage is on the government, it is not proof “in the usual courtroom sense of the word” (par. 35). Furthermore, since this case does not concern criminal law, and no one’s freedom from incarceration is at risk, the government’s measure “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).

With respect to the objective of the oath of allegiance, including the reference to the Queen, Justice Morgan seems to accept the government’s submission that it is to express a symbolic commitment to Canada and its constitution. The applicants argued that the reference to the Queen did nothing to achieve that objective, but that, says Justice Morgan, is an argument about rational connection, not about the objective itself. Since the applicants do not contest the value of having an oath expressing commitment to the constitution,  they cannot prevail on this point.

Is there, then, a rational connection between making a commitment to the constitution, and pledging allegiance to the Queen? The applicants say there is none, because the Queen is an alien, inegalitarian, and undemocratic figure. But, says Justice Morgan, though the applicants might want this to change, the fact remains that the monarchy is a part of the constitution. Therefore, “it is certainly rational for Parliament to have embraced an oath that references in a direct way Canada’s official head of state” (par. 46), just as it would have been rational for Parliament to chosen to referenced any other distinctive element of the constitution ― bilingualism, bijuridicalism, federalism, etc.

The next stage in the analysis is whether the oath of allegiance is a “minimal impairment” of the applicants’ freedom of expression. The applicants claimed the Queen represents inequality and colonialism, and is at odds with the ideals of modern Canadian society. Furthermore, other democratic states, including Australia, of which the Queen is also the head, make do without oaths to their heads of state. But the applicants, Justice Morgan says, misunderstand the meaning of the reference to the Queen and the significance of the oath. The oath of allegiance is neither an expression of loyalty to Elizabeth II as a person nor even an unbreakable commitment to the monarchy as an institution. The Queen to which the oath refers is only a symbolic representation of the constitution itself, not the physical person living in Buckingham palace. She represents the Rule of Law, not arbitrariness; equality, not privilege; Canada, not the U.K. The applicants argued they simply take the “plain meaning” of the citizenship oath seriously, but Justice Morgan finds that their “problem is not so much that they take the oath seriously. Rather, their problem is that they take it literally” (par. 59), in a manner “that is the exact opposite of what the sovereign has come to mean in Canadian law” (par. 67). It is because of this that the applicants perceive the oath as a serious infringement of their freedom of expression. If the oath is understood correctly, it is minimally impairing of this right.

Similar considerations apply at the last stage of the s. 1 analysis, a comparison between the salutary and the deleterious effects of the oath of allegiance. The applicants contended that its deleterious effects were great, because taking the oath prevented them, in conscience, from continuing their anti-monarchist activities. But that too, says Justice Morgan, is a misunderstanding. Justice Morgan expounds at great length on the “loyalist myth” according to which the United Empire Loyalists who came to Canada after the American Revolution were personally and unquestioningly loyal to the British King, and to which, in his view, the applicants’ position is similar. No, political dissent and opposition were always part of the Canadian tradition.  Those taking the oath of allegiance can oppose the monarchy, provided only that theirs remains a “loyal opposition.” The applicants’ beliefs, however sincere, as misguided, so that the harm to their freedom of conscience is outweighed by the benefits of requiring new citizens to affirm “fidelity to a head of state symbolizing the rule of law, equality, and freedom of dissent” (par. 80). The citizenship oath is a limit on freedom of expression, but one that is “appropriate for a free and democratic society that is Canada” (par. 81).

Finally, Justice Morgan holds that the citizenship oath infringes neither the applicants’ freedom of religion nor their equality rights. Because the Queen symbolizes equality and the Rule of Law, the oath of allegiance is “rights-enhancing” (par. 90). The freedom of religion claim, in his view, “runs up against the settled notion that the rights of some cannot be a platform from which to strike down the rights of others” (par. 90). The oath itself is secular, and accommodating religious beliefs in the context of a secular ceremony would be tantamount to state sponsorship of religion, which is itself contrary to the Charter guarantee of religious freedom. As for equality, to the extent that it is religious or racial equality that is at issue, there is no evidence of any disparate effect that the current oath might have on minorities. And insofar as the allegation is one of discrimination on the basis of citizenship status, it cannot succeed because it is the very definition of citizenship status that is at issue.

The citizenship oath survives. In an earlier post, I said that I wouldn’t have bet on the contrary result, and it seems like I was right. I also argued, however, that this result is wrong. For the reasons which I will explain tomorrow, Justice Morgan has not persuaded me of the contrary.

UPDATE: My comment on Justice Morgan’s decision is here.

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.

Against the Queen’s Oath

Just a brief post to note that the Globe has published an op-ed by Peter Rosenthal, the lawyer representing the applicants in the challenge against the constitutionality of Canada’s citizenship oath because of its reference to the Queen and her heirs and successors, about which I have written a great deal in the last couple of weeks. (The posts on this topic are all collected here.) Nothing really new there, but it provides a useful summary of the applicants’ claims. In particular, it emphasizes that the challenge is not to monarchy itself, but merely to its inclusion in the text of the oath. Prof. Rosenthal also stresses that “[a]ll three applicants would gladly affirm that they will faithfully observe the laws of Canada and fulfill their duties as citizens.” They do not challenge the idea of a citizenship oath ― though as I have written here, it is not clear how to justify one at all.

Prof. Rosenthal concludes:

I hope that even most monarchists feel that new Canadians should be allowed to take an oath to Canada rather than to the Queen, and that Parliament will amend the legislation. Should this not be realized, I hope the courts find the oath to the Queen unconstitutional and require Parliament to eliminate it.

I wish him luck, though I would rather that we got rid of the citizenship oath altogether.

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.

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.

À quoi sert le lieutenant-gouverneur?

Le Globe and Mail a publié une chronique intéressante de Carolyn Harris, une historienne (et auteure d’un blogue sur l’histoire de la monarchie), réagissanat aux récents propos de Pauline Marois concernant la monarchie canadienne et, plus spécifiquement, l'(in)utilité du lieutenant-gouverneur dans la structure constitutionnelle québécoise.    Selon ce que rapporte Mme Harris, Mme Marois aurait affirmé (je n’arrive pas à trouver le texte de ses remarques) que le lieutenant-gouverneur est un gaspillage d’argent, qu’il ne fait que signer des lois avec lesquelles il n’a rien à voir et dissoudre l’Assemblée nationale à la demande du premier ministre, et n’est qu’une relique du passé qu’il faudrait défier.

Mme Harris critique ces affirmations. Elle rappelle que la monarchie fait partie de l’histoire québécoise tout autant que de l’histoire du reste du Canada; la Nouvelle-France était, après tout, une colonie de la monarchie française. Les grands personnages de son histoire, les Champlain, Talon et Frontenac, étaient des représentants des rois de France. Quant au rôle du lieutenant-gouverneur dans la structure constitutionnelle du Québec contemporain, il est plus imporant que Mme Marois ne le laisse entendre, puisque le représentant de la couronne exerce les pouvoirs de prérogative, notamment ceux de dissoudre ou de proroger l’Assemblée nationale.

Il y a une part d’exagération dans les propos de Mme Haris, puisque, normalement, ces pouvoirs de prérogative sont exercés sur l’avis du premier du premier ministre ou du cabinet. Et, à mon avis, elle réécrit quelque peu l’histoire lorsqu’elle prétend que “[t]he current political structure of the province where Ms. Marois aspires to become premier has its origins in the guarantee of French-Canadian culture by the British Crown,” puisque c’est la législation – impériale, avec l’Acte de Québec de 1774, puis canadienne, – et non la Proclamation royale de 1763, qui a protégé la culture canadienne-française.

Cependant, le rôle du lieutenant-gouverneur est, en fait, encore plus important que Mme Harris ne le dit. Car il y a des pouvoirs que le lieutenant-gouverneur peut et doit exercer seul, et non sur l’avis du premier ministre. Il s’agit, notamment, du pouvoir de nommer le premier ministre lui-même. D’habitude, on ne remarque pas l’importance de ce pouvoir. La convention constitutionnelle exige que le lieutenant-gouverneur nomme la personne la plus susceptible d’avoir la confiance de l’Assemblée nationale. Si un parti a une majorité à l’Assemblée nationale, cette personne sera le chef de celui-ci. Le choix du lieutenant-gouverneur est dicté par les résultats de l’élection. Cependant, si aucun parti n’est majoritaire, les choses se comliquent. Récemment, tant au niveau provincial qu’au fédéral, le représentant de la couronne invitait le chef du parti ayant fait élire le plus grand nombre de députés à former le gouvernement. Mais la convention ne dit pas que ce doit être le cas. Si, par exemple, les partis arrivés 2e et troisième forment une coalition (comme c’est arrivé en Ontario en 1985), c’est le chef de cette coalition qui pourrait obtenir la confiance de l’Assemblée. C’est le lieutenant-gouverneur qui joue le rôle d’arbitre dans l’éventualité d’un conflit. C’est aussi le lieutenant-gouverneur qui décide d’accéder ou non à une demande de dissolution ou de prorogation de l’Assemblée nationale présentée par un premier ministre à la tête d’un gouvernement minoritaire, surtout un gouvernement minoritaire récemment élu (comme, au fédéral, respectivement, dans l’affaire King-Byng de 1926 et lors de la crise de la prorogation à l’hiver 2008-09).

Ainsi, le lieutenant-gouverneur continue de jouer un rôle crucial dans notre système constitutionnel. Il est un arbitre neutre et indépendant qui a le pouvoir de régler les crises constitutionnelles susceptibles de survenir lorsqu’aucun parti n’obtient la majorité de sièges à l’Assemblée nationale à la suite d’une élection. Or, un tel scénario est justement susceptible de se produire à la prochaine élection. Quelles que soient leurs opinions sur l’avenir constitutionnel du Québec, les chefs des partis ont, selon moi, une responsabilité envers les électeurs de bien comprendre et de bien expliquer les arrangements constitutionnels tels qu’ils sont à présent. Mme Marois ne s’en est pas acquittée.