oath – Double Aspect

Why Couldn’t They?

Quebec probably can abolish the requirement that Members of the National Assembly swear allegiance to the King

The Quebec government has made news, even on this side of the pond, by introducing Bill 4, which purports to amend the Constitution Act, 1867 “by inserting the following section after section 128: ‘128Q.1. Section 128 does not apply to Quebec'”. Section 128 provides, in part, that

Every Member of the Senate or House of Commons of Canada shall before taking his Seat therein take and subscribe before the Governor General or some Person authorized by him, and every Member of a Legislative Council or Legislative Assembly of any Province shall before taking his Seat therein take and subscribe before the Lieutenant Governor of the Province or some Person authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act.

No more oath of allegiance to King Charles, then, for members of the National Assembly? Not so fast, say a number of people whose judgment I regard highly. A province (or for that matter Parliament) cannot unilaterally change this provision’s application to itself, though, as Lyle Skinner notes, there seems to be some division of views on what the appropriate procedure would be.

But I’m not sure I see what it is that stops a province from proceeding unilaterally; or at any rate, I have not seen the relevant evidence yet, though I admit I haven’t followed this whole controversy closely. I should also note that I what I am about to say does not endorse Quebec’s predilection for purporting to inscribe amendments to its provincial constitution into the Constitution Act, 1867. I think this way of doing things is self-indulgent and silly, and I don’t know whether it is lawful either. Perhaps Bill 4 could be attacked on this ground, but I leave this question aside and focus on its substance.

The authority for Bill 4, if it exists, must come from section 45 of the Constitution Act, 1982, which provides that “[s]ubject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.” Legislation must, satisfy two obvious criteria to be valid under this provision: it must be concerned with “the constitution of the province” and it must not trench on matters protected section 41 of the Constitution Act, 1982.

The first test is explained in Justice Beetz’s majority judgment in Ontario (Attorney General) v OPSEU, [1987] 2 SCR 2. It has two branches. First,

is the enactment constitutional in nature? In other words, is the enactment in question, by its object, relative to a branch of the government of [the province] or, to use the language of this Court in Attorney General of Quebec v Blaikie, [1979] 2 SCR 1016, at p. 1024, does “it [bear] on the operation of an organ of the government of the Province”? Does it for instance determine the composition, powers, authority, privileges and duties of the legislative or of the executive branches or their members? Does it regulate the interrelationship between two or more branches? Or does it set out some principle of government? (38-39)

The existence, contents, and abolition of an oath to be sworn by members of the legislative assembly obvious meets this test, bearing as it does on the composition and duties of the members of the legislative branch. The fact that s 128 lies outside the part of the Constitution Act, 1867 entitled “Provincial Constitutions” is neither here nor there. It is the substance that matters here, as Justice Beetz pointed out.

The second branch of the OPSEU test is the one that those who believe Quebec lacks the authority to enact Bill 4 have in mind. It says that

provisions relating to the constitution of the federal state, considered as a whole, or essential to the implementation of the federal principle, are beyond the reach of the amending power bestowed upon the province … Furthermore, other provisions of the Constitution Act, 1867 could be similarly entrenched and held to be beyond the reach of s. 92(1), not because they were essential to the implementation of the federal principle, but because, for historical reasons, they constituted a fundamental term or condition of the union formed in 1867. (39-40)

Now, I think it’s obvious that the oath of allegiance has nothing to do with the federal principle and the distribution of powers among Parliament and the provincial legislatures, or with “the constitution of the federal state, considered as a whole”. On the contrary, part of the point of Canadian federalism is that Parliament and the provincial legislatures function autonomously. They are elected in separate elections, pursuant to different electoral legislation (and, potentially, with a different franchise, though subject to s 3 of the Canadian Charter of Rights and Freedoms); they have different privileges and different internal procedures.

If the second branch of the OPSEU test prevents provinces from abolishing the oath of allegiance for their legislators, it must be because this oath “constituted a fundamental term or condition of the union formed in 1867”. And… I just have a hard time thinking that that’s the case, whether for reasons of form or substance.

So far as form is concerned, it is true that s 128 mentions federal and provincial legislators in the same provision, indeed in the same sentence. But I don’t think it follows that they cannot be disaggregated. Consider s 96 of the Constitution Act, 1867, which provides in part that “the Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province”. Here too, federal and provincial institutions are mentioned ― and indeed, not merely mentioned in parallel as in s 128, but intertwined. Yet that did not stop the provinces from exercising their s 92(14) power over “the Constitution, Maintenance, and Organization of Provincial Courts” to abolish District and County courts.

As for substance, the example to which Justice Beetz points in OPSEU is s 133 of the Constitution Act, 1867, which imposes the requirement of legislative and judicial bilingualism on both Parliament and the Quebec legislature. This is the provision considered in Blaikie. The Supreme Court referred to the judgment of the Quebec Superior Court “[o]n matters of detail and of history”. (1027) That judgment, for its part, quoted at some length from the Confederation Debates, where John A. Macdonald noted that it “was proposed by the Canadian Government … and it was assented to by the deputation from each province that the use of the French language should form one of the principles upon which the Confederation should be established”. Meanwhile, Georges-Étienne Cartier added that

The members of the [Quebec] Conference had wanted that this [French-Canadian] majority [in Quebec] be unable to enact the abolition of the use of the English language in the local legislature … just as the English majority in the Federal legislature would be able to do it to the French Language.

This is what a fundamental term of confederation looks like. A quick skim through PrimaryDocuments.ca doesn’t suggest any equivalent attention having been paid to the oath of allegiance. It was only a quick skim and it’s entirely possible that I have missed something, of course. But unless and until someone points to specific facts that suggest that the oath had any sort of comparable importance, I will not be persuaded that it was a “fundamental term or condition” without which Confederation would not have happened.

Thus, I don’t think that the OPSEU test prevents a province from changing or abolishing the oath of allegiance the members of its legislature must subscribe. There remains, though, the other restriction on section 45: section 41 and, specifically, the restriction that a province may not amend its constitution so far as it relates to “the office of the Queen, … and the Lieutenant Governor”.

Mr Skinner, in the tweet linked to above, says he “ha[s] not seen anyone suggest” that this restriction applied, but this overlooks obiter dicta in Blaikie. In responding to Quebec’s contention that s 133 was similar to certain other provisions of the Constitution Act, 1867 in being part of the provincial constitution despite not being included in the part entitled “Provincial Constitutions”, the Court had considered s 128. It said, however, that it “raises a different issue, referable to the office of the Governor-General and of the Lieutenant-Governor and touching the position of the Crown in respect of members of the legislative chambers, so long as such chambers exist”. (1024) But the Court did not fully canvass this issue, stating that “[i]t does not seem necessary to come to a determination whether s 128 is part of the Constitution of the Province and amendable as such”. (1025)

For my part, I find it difficult to accept the Court’s suggestion. I do not think that an abolition of the oath of allegiance affects “the office” of the monarch. The highest authority we have on the meaning of this phrase is Motard v Attorney General of Canada, 2019 QCCA 1826, where the Quebec Court of Appeal held that it referred to “the powers, status or constitutional role devolved upon the Queen”. [92] While I suspect that that judgment was wrong in its key holding ― that the rules of succession to the throne were not also part of the royal “office” ― I do not see the existence or otherwise of the oath as pertaining to “the powers, status or constitutional role” of the sovereign. It is a constraint on members of the legislature, not a privilege or power of the King.

In short, subject to better historical evidence on the importance of the oath of allegiance as a condition of Confederation coming to light, I think that a province has the power to dispense with it unilaterally. That does not make such a dispensation a good idea, though I have argued elsewhere that similar oaths are useless at best and pernicious at worst. It is arguable that legislators are in a different position than would-be citizens or would-be lawyers, but I don’t know how compelling these arguments are. And, of course, even the desirability of abolishing the oath requirement, let alone the constitutionality of doing so, has nothing to do with the desirability of preserving the monarchy. God save the King!

One’s Own Self, Like Water

The Law Society’s demand for a “Statement of Principles” is a totalitarian values test

In my last post, I outlined the scope of the Law Society of Upper Canada’s demands that all lawyers subject to its regulation, including those who are retired or working outside Ontario, produce a “Statement of Principles that acknowledges” a purported “obligation to promote equality, diversity and inclusion” ― not only in the practice of law but “generally”. I also explained that no such obligation exists at present, because none is imposed by the Rules of Professional Conduct or other rules applicable to lawyers, as they now stand, and that it is doubtful whether the Law Society could lawfully impose such an obligation under its enabling statute.

I have not seen meaningful responses to these concerns. On the contrary, they have been echoed in an op-ed in the Globe and Mail by Arthur Cockfield. Instead, those who defend the Law Society argue that whatever limitation of our rights the Law Society’s demands produce, the limitation is justified if analysed under the proportionality framework of s 1 of the Canadian Charter of Rights and Freedoms. They also point to the fact that lawyers are already required, by s 21(1) of Law’s Society’s By-Law 4, to swear an oath upon entry into the profession.

I agree with the Law Society’s defenders that the “Statement of Principles” that it wants us to produce is indeed similar to an oath, and in particular to the oath required by s 21(1), which I will refer to as “the lawyers’ oath”. They are similar in nature, in purpose ― and in their uselessness and questionable constitutionality. I will discuss these points below, drawing heavily on the criticisms of the Canadian citizenship oath (and, specifically, of its reference to the Queen) that I have developed over the course of four years of blogging on this topic, and especially in an article on this issue published in the National Journal of Constitutional Law. (Indeed, though it was not the focus of my argument, I briefly discussed the lawyers’ oath in the article.) Some of those who defend the Law Society have sought to accuse its critics of hypocrisy over our purported failure to object to oaths, and especially to oaths of allegiance to the Queen. Whatever the rhetorical value of such accusations ― and I think that it is nil, since they do not refute our substantive objections ― this topic is not new to me.

Start, then, with the nature of the oath or “Statement of Principles”. Both are forced expressions of commitment to acting in certain ways. Though a “Statement of Principles” might, depending on the way in which it is formulated, ostensibly stop just short of being a promise, I think that any distinction between acknowledging an obligation and promising to fulfill an obligation is one without a difference in this context. In his National Post op-ed criticizing the Law Society’s demands, Bruce Pardy treated the “Statement of Principles” as a forced expression of support of support for the Law Society’s policies, which I think is quite right. As Prof. Pardy pointed out, in National Bank of Canada v Retail Clerks’ International Union, [1984] 1 SCR 269, the Supreme Court has condemned such demands as “totalitarian and as such alien to the tradition of free nations like Canada”. (296) Although in Slaight Communications Inc v Davidson, [1989] 1 SCR 1038 the Court made it clear that this holding did not apply to compelled statements of fact, this (wrongheaded, in my view) narrowing of the National Bank holding is not relevant here. But, as I have argued in my blog posts and article, coerced commitments are more than expressions of opinion. They are impositions not only on the freedom of speech of those who must make them, but also on their freedom of conscience. Oaths, as the Supreme Court explained in R v Khan, [1990] 2 SCR 531 work by “getting a hold on [the] conscience” of those who take them, notably ― but not only, as I shall presently explain ― by making the thing sworn to a matter of moral, and not merely legal, obligation. The “Statement of Principles” is similar, in that it is an attempt to make every lawyer embrace, as a matter of his or her personal morality, and thus conscience, the principles set out in that statement.

The other way in which oaths typically impinge on conscience, and also a point of similarity between the lawyers’ oath and the “Statement of Principles” is that, because they typically impose vague obligations that go well beyond the requirements of any positive law, they demand frequent if not constant exercise of moral judgment about the precise scope of the duties being sworn to. As I wrote in my article, the lawyers’ oath

requires lawyers, among other things, to “protect and defend the rights of interests” of their clients; to “conduct all cases faithfully”; not to “refuse causes of complaint reasonably founded, nor [to] promote suits upon frivolous pretences”; to “seek to ensure access to justice”; and to “champion the rule of law and safeguard the rights and freedoms of all persons.” These (and the other requirements of the oath) are not straightforward obligations. Discharging them requires lawyers to think about just what their duties are. … [T]o a considerable degree, the judgment required is a moral one. In some cases, that is because the lawyers’ duties are couched in moral terms (like “faithfulness” …). In other cases, the degree to which one can and ought to fulfill these duties must necessarily be left to individual conscience. (How far must one go to “ensure access to justice”: does it require one to limit one’s fees? How much pro bono work need one do? Can one “ensure access to justice” while being a member of a state-enforced cartel devoted to raising the cost of legal services?) In other cases still, it is because the lawyers’ duties can conflict (for instance, when the defence of a client’s interests might suggest launching a “suit upon frivolous pretences”), requiring moral judgment about which is to prevail. In short, a lawyer must constantly, or at least frequently, rely on his or her conscience to determine just what it is that his or her oath requires. (152)

The “Statement of Principles” would be meant to do the same thing, requiring lawyers (those, at least, who take it seriously) to be constantly asking themselves what their general “obligation to promote equality, diversity and inclusion” requires. It is no answer that the requirement is merely to comply with relevant human rights legislation. Not only is no “Statement of Principles” necessary to achieve that, but this legislation does not actually apply to many lawyers, such as those who are retired and not engaged in the sorts of relationships or activities which such legislation covers. The whole point of a “Statement of Principles” is to go beyond the positive law.

These impositions on freedom of conscience ― and, of course, the compelled expression of opinion that the lawyers’ oath and “Statement of Principles” also are ― require justification. I do not think that any exists. In my article, I take the Canadian citizenship oath through the Oakes proportionality analysis, and find that it fails at every step. (Interestingly, as I also note in the article, the Law Society itself dropped the mandatory oath to the Queen due to constitutional concerns.) Of course, the issues with the lawyers’ oath and the “Statement of Principles” are not the exactly same. Yet there are also some common points.

In particular, both supposedly serve the sort of “[v]ague and symbolic objectives” of which the Supreme Court told us to be wary in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519 while having a tenuous relationship to these objectives. The lawyers’ oath is unlikely to make many lawyers more ethical, or more committed to the Rule of Law. One is ethical, or a “champion of the Rule of Law”, because one believes in these things ― not because one was made to swear to them. Similarly, even the Law Society’s defenders tend to acknowledge that requiring us to produce a the Statement of Principles is not going to do much to make the legal profession more diverse or inclusive. A symbolic expression of commitment to a set of values, no matter how attractive, is no more necessary than a symbolic expression of commitment to one’s country, no matter how great ― which, I explain in the article on the citizenship oath, and as Liav Orgad explained in more detail in his study of loyalty oaths, is to say not necessary at all.

This is all the more so since the Law Society explicitly states that the requirement to produce a “Statement of Principles” can be satisfied by the simple expedient of “adopting” one of the sample “Statements” supplied by the Law Society itself. Indeed, the Law Society’s defenders suggest that since we could easily “adopt” one of those sample statements, regardless of whether we believe in them, or some other “Statement” so vague and bland that, as Annamaria Enenajor put it to me on Twitter, “a closet [sic] neo-nazi lawyer could get down with” it, the whole thing is really no big deal. This again is similar to the lawyers’ oath. I have no doubt that if Justice Abella chooses to re-join the bar after her retirement from the Supreme Court, she will feel no compunctions about promising to “champion the rule of law” ― even though it is a matter of public record that “[t]he ubiquitous phrase ‘rule of law’ annoys her“, and that she prefers something called “the rule of justice”. But to the extent that the Law Soceity’s fellow-travellers are right, it is difficult to see how the “Statement of Principles” is meaningfully addressing a pressing and substantial concern, and it must fail the proportionality test for that reason.

There is, however, another possibility. As with the citizenship oath and the lawyers’ oath, while most people may be content to make a pretended commitment to ideas or principles they do not understand or indeed secretly despise, some are not. They take a thing of that nature, whether called an oath or a Statement of Principles, seriously. They agree with Robert Bolt’s Thomas More that “[w]hen a man takes an oath … he’s holding his own self in his own hands. Like water. And if he opens his fingers then—he needn’t hope to find himself again”. And, just like More refused to falsely swear an oath to regard Henry VIII as head of the Church, they will not tick off box on the Law Society’s form to acknowledge an obligation to promote ideals the Law Societey’s interpretation of which they do not share, or indeed the Law Society’s authority to impose which they reject. As to such people ― as to those who refuse to live in the closet ― the Law Society’s demand is not a trivial, if useless, imposition. As prof. Pardy argues, and as the Supreme Court has long accepted, forcing people to endorse opinions that they do not share is totalitarian ― or at any rate no less oppressive than the government of Henry VIII. As to such people, the Law Society’s demands will, at all events, fail the “proportionality strictu sensu” test, because totalitarian demands for ideological compliance always impose a greater cost than whatever benefit the state (or, in this case, the Law Society) can hope to obtain by imposing them.

Beyond the dry terminology of proportionality analysis, it is important to understand that what is at stake here is neither more nor less than a values test for the practice of law. While some have resisted this implication (going so far as to argue that a requirement to produce a “Statement of Principles” is not a values test even though a requirement to provide it to the Law Society would be one!), others among the Law Society’s fellow travellers are quite comfortable with it. In their view, there is nothing wrong with a legal profession in which only people who hold the right values ― and those who are sufficiently unprincipled to dissemble about theirs ― are welcome to remain, while those who are deemed to be wrong, and who refuse to hide in the closet in response, are shown the door. The undesirables are not yet pushed out ― it may be that the Law Society’s policy is nothing more than a paper tiger, a “demand” that will not be meaningfully enforced. But it could also be a warning, and a test. Even if the Law Society does not try coercion now, acquiescence to its demands it will embolden it do so in the future. As others have argued, it will also show that the legal profession is supine enough to comply with the authorities’ attempts to impose orthodoxy on it. And this leads me to a final question for those who support the Law Society. Are you really so confident of always being among those whose orthodoxy will be imposed on others? Thomas More ― the historical one, the one who confiscated books and rejoiced in the burning of heretics ― was so confident. May you fare better than he did.

New Swearwords

The Prime Minister wants to make a meaningless addition to our unconstitutional citizenship oath

As the CBC reports, the Prime Minister’s mandate letter to the new Minister of Immigration, Refugees and Citizenship directs him to “[w]ork in collaboration with the Minister of Indigenous and Northern Affairs to make changes to the Oath of Canadian Citizenship to reflect the Truth and Reconciliation’s [sic] Calls to Action.” What the Truth and Reconciliation Commission suggested was adding the clause “including Treaties with Indigenous Peoples” to the undertaking to “faithfully observe the laws of Canada”. This addition is silly ― and, meanwhile, the oath remains unconstitutional, as I have long argued here and in an article published in the National Journal of Constitutional Law.

Having new citizens undertake to “faithfully observe … Treaties with Indigenous Peoples” is meaningless exercise in symbolic politics. The treaties in question do not bind citizens. Citizens trying to ascertain the duties they subscribe by taking the oath in this form would find none. The treaties do not require them to do or not to do anything. They impose obligations on (and give rights to) the Crown ― i.e. the government. An individual citizen can no more “observe” these treaties than he or she can fail to do so.

The addition of meaningless language further devalues the citizenship oath ― though admittedly it is already not worth very much. Many citizens, new and old alike, including indeed the authors of the guidebook used to help prepare would-be citizens for their citizenship test, misunderstand the reference to the Queen in the existing oath, thinking that it means that “we profess our loyalty to a person”. What is more, as the Court of Appeal for Ontario observed in the course of dismissing a challenge to the constitutionality of the reference to the Queen, in McAteer v. Canada (Attorney General), 2014 ONCA 578, 121 OR (3d) 1,

a former plaintiff in this proceeding who had taken the oath of the citizenship, has publicly recanted the oath to the Queen while, at the same time, confirming the remainder of the oath. Mr. Charles was informed by the Minister of Citizenship and Immigration that his recantation had no effect on his citizenship status.

The government of Canada, in other words, thinks that the oath means nothing at all (imagine, by contrast, a judge’s reaction to a witness telling her that he “recants” his promise to say nothing but the truth), and goodness knows what those who take the oath think it means. The Prime Minister’s new plan does not change that.

Nor does it address the unconstitutionality of the oath in its current form. While it has upheld the oath, I have argued here that the McAteer decision is a “parade of judicial horribles“. It misreads the relevant precedents and relies on conclusory assertions about the value of the citizenship oath while ignoring the oath’s history as an embodiment of distrust and the distinctive way in which an oath (contrary to a statutory command) operates by enlisting the conscience of the person who takes it. As I explain in more detail in my article, the citizenship oath in its current form is an imposition on individual conscience that is not justified by any pressing and substantial objective, is not rationally connected to the purposes it supposedly serves, is not minimally restrictive (since it could easily be re-written to accommodate the scruples of those who object to it), and is not proportional to the harms it inflicts on objectors. It is, in short, contrary to s 2(a) of the Canadian Charter of Rights and Freedoms, and cannot be “saved” by s 1.

This is what the Prime Minister ought to have asked the Immigration, Refugees and Citizenship Minister to address. Instead, he chose to focus on a meaningless gesture. I have written here that “oaths of allegiance are like swearwords ― significant yet meaningless, and not something to be said in polite company”. Another feature of swearwords is that their precise contents matters very little; only the emotions they convey are of any significance, as this latest news confirms.

State v. Conscience

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Events Next Week

I’ll be visiting McGill and Yale next week. Come say hello!

Next Tuesday, the 29th, I’ll be taking part in a discussion on “Conscience and the Constitution in Canada” at the McGill Faculty of Law (specifically, in NCDH 101). I will be speaking on the conflict between freedom of conscience and state authority, in particular as it played out in the litigation about the constitutionality of the Canadian citizenship oath, about which I have written a great deal here. The other participant will be Brian Bird, a doctoral candidate at McGill, who will be speaking about the legal history of freedom of conscience in Canada. The fun starts at 1PM and goes on until 2:15.

By the way, this event is organized by the Runnymede Society, which is a new group that aims at fostering conversations and debates on matters constitutional in Canadian law schools, and in particular at presenting students with a broader range of views and perspectives than they might otherwise be exposed to. I think it is a very exciting and useful project, and I am very excited to be taking part in one of their first events. Thanks to the Runnymede Society’s president, Joanna Baron, for inviting me!

And next Thursday, the 31st, I will be moderating a panel on “Popular Sovereignty and a Québec Constitution” at the Symposium on Does Québec Need a Written Constitution?,which will be taking place at Yale, in Luce Hall (LUCE), Room 203. The proceedings start at 9:45, and the panel that I’ll be chairing ― and on which Maxime St-Hilaire (a sometime guest here at Double Aspect), Mark Walters, and Nelson Wiseman will be speaking starts at 1PM. Many thanks to Richard Albert, the convener of the Symposium, for inviting me to do this.

If you are able to attend either event, please come say hello!

The Swearing Show

Niqabs at citizenship oath swearing ceremonies are a big deal. Not really a big deal, mind you, because, as Radio-Canada reports, according to Citizenship and Immigration Canada, there have been exactly two women since 2011 who refused to go through with the oath because of the ban on the niqab which the government had illegally decreed. But politically a big deal. Yet while the niqab and the citizenship oath are the hot new celebrity couple of Canadian politics, all the attention is focused on the niqab, even though all that there was to say about it has already been said some time ago, by Emmett Macfarlane and by Tabatha Southey. If there was anything left to add, Andrew Coyne has added it. The oath, for its part, languishes in obscurity. I would like to remedy that.

You might think that focusing on the oath is a waste of time; that it is only a pretext for the Conservatives to score some political points by attacking the infinitesimal minority of Muslim women who wear the niqab. But why was this particular pretext chosen? After all, the same party is apparently uninterested by banning niqabs from the polling stations ― and yet you’d think that this would be at least as much of a bigot-vote-winner as banning them from citizenship oath ceremonies. So I think it is worth asking what is special about the oath.

There are two ways of seeing the citizenship oath. One is presented in the judgments of the Ontario courts that have upheld its reference to the Queen against a constitutional challenge by some anti-Monarchists who refused to swear “true allegiance” to Elizabeth II, her heirs and successors. The persons challenging the oath argued that the Queen symbolized inequality, privilege, and oppression. Not so, held the Superior Court of Justice in McAteer et al. v. Attorney General of Canada, 2013 ONSC 5895: “the oath to the Queen is in fact an oath to a domestic institution that represents egalitarian governance and the rule of law.” [65] For its part, the Court of Appeal for Ontario, in McAteer v. Canada (Attorney General), 2014 ONCA 578, held that the oath represented “a symbolic commitment to our form of government and the unwritten constitutional principle of democracy.” [62]

As I explained in a paper arguing that, contrary to the courts’ findings, the citizenship oath is indeed an unconstitutional violation of freedom of conscience, the other way of seeing the Canadian citizenship oath, as all loyalty oaths, is as an expression of the state’s fear of its new citizens’ disloyalty. I wrote that

if there is an implicit logic that can justify imposing the oath of allegiance on all would-be naturalized citizens, it is that they are all people whose commitment to Canada is doubtful (their decision to seek Canadian citizenship notwithstanding!), if not potential traitors. (158)

Otherwise, why is the oath even necessary? The government and the courts never answered this question (in part, one must admit, because the people challenging the oath did not dare ask it ― they accepted the principle of the oath unquestioningly).

To me at least, the role that the citizenship oath has come to play in the niqab controversy suggests that my jaundiced view of the oath is closer to reality than the courts’ optimistic one. If the oath were about equality, it would not be seen as an opportunity for singling out a minuscule unpopular group for legal retribution and public opprobrium. If it were about the Rule of Law, it would not be the occasion for bending legal procedures and ignoring legal advice in order to score political points. If it were about respecting our form of government, it would not be the scene of a blatant violation of the Canadian Charter of Rights of Freedoms. On the other hand, if what the oath really represents is a fear of the outsiders, of those who are different ― whether they think differently (like the anti-Monarchists) or dress differently (like the women who wear the niqab) ― and who are therefore said to stand against Canadian values and deemed disloyal despite the absence of any evidence of their disloyalty, then it makes a lot of sense for the oath to be treated in these ways.

We would do well, I submit, to ask ourselves again why exactly it is that we need an oath of citizenship. Mr. Coyne writes that “[n]o one else’s life is made the poorer because, somewhere in Canada, a women is swearing allegiance to this country with her face covered.” Nor are anyone’s rights infringed. That is true of course. But the same thing would be true if one simply became a citizen upon having satisfied a citizenship judge that one has met the legal requirements. The theatre of the oath-swearing can be dispensed with. The actors do not even understand their lines, and now we’re fighting over their costumes too. There are other shows in town more deserving of everyone’s time and attention.

No Blurred Lines

Last week, I published a lament for the Charter challenge to the Canadian citizenship oath, which the Supreme Court refused to hear, over at the Policy Options blog. Philippe Lagassé has published a thoughtful response, arguing that contrary what I have been saying all along, the case really was about “the legitimacy of the Crown” as a part of the Canadian constitution, so that its rejection was a good thing, because it prevented this legitimacy from being undermined. In particular, prof. Lagassé argues that

[h]ad the courts found that the appellants’ individual interpretation of the oath should trump the constitutional sense, the line between personal views and legal fact would have been blurred. The Crown would no longer have any definitive meaning; instead of personifying the Canadian state, the Queen could plausibly be whatever anyone believes she might be. Suffice it to say, we would not accept this with respect to other public institutions. Individuals are not free to interpret parliamentary statutes in any way they want, for example. Similarly, we expect court rulings to be respected, notwithstanding our personal disagreements with their reasoning. It’s unclear why we shouldn’t afford the Crown the same standing, except for the fact that the monarchy is contentious. If the case had gone the other way, the Crown would arguably have become a lesser part of the constitution as compared to Parliament and the judiciary, one that can be disregarded if it clashes with our personal beliefs.

As I’ve already stated here, I am a monarchist myself, and have no wish to see the Crown a lesser part of the constitution. Fortunately, however, that would not have been the consequence of a judgment in favour of those challenging the oath.

Indeed, there are two ways of arguing this point. One is to say that the government coercing speech is, regardless of that speech’s content a violation of the freedom of expression, which must be justified under s. 1 of the Charter. I will not elaborate on this point here, partly because I am hoping that Ben Oliphant will do so over at Policy Options (no pressure!), and mostly because I think that, although legally correct and sufficient, this argument obscures what is really going on with the citizenship oath.

The other response to prof. Lagassé’s concerns, which I find more attractive, addresses instead of avoiding the content of the oath. Indeed, it focuses on what is really distinctive about it. As I argue in greater detail in a paper published last year, an oath requires the oath-taker to work out for him- or herself the precise nature of the obligations he or she subscribes as a result of taking it. The oath will typically describe those obligations in inherently terms ― such as “allegiance” in the case of citizenship oath ― which are not only inherently vague but also require moral judgment in order to applied to specific situations.

This is in contrast to statutory commands and judicial decisions, to which prof. Lagassé compares the citizenship oath. The contrast with judicial decisions is perhaps most obvious. Court orders tell those at whom they are aimed exactly what to do. Pay the plaintiff 10 000$. Stop dumping your factory’s waste into the river. Re-write the statute within a year or see it become unenforceable. Indeed, impossibility to formulate a precise order can be reason for a court to refuse to intervene in a dispute.

Statutory commands aren’t always as definitive, because they can use standards as well as bright-line rules, the standards used in statutes normally appeal to understandings that are widely shared and the subject of substantial agreement among those whose behaviour is regulated (whether the society at large or some specific group). Perfection in this regard is unattainable, but complete failures ― statutes that fail to guide behaviour to the point of not lending themselves to meaningful judicial debate ― can be declared unconstitutional. We may have to consult a lawyer to figure out the meaning of statute, but we need not consult our consciences.

Swearing the citizenship oath requires one (if one takes the oath seriously, which admittedly most of those who take it probably do not) to do just that. Indeed the oath would be quite unnecessary if it did not. A citizen is already bound by laws regarding treason and others which set out his or her legal obligations to the state (or to Her Majesty as its embodiment). If the oath ― not just the specific oath to the Queen, but any form of citizenship oath ― is not to become entirely redundant, it must be regarded as imposing not legal obligations, but conscientious ones.

Once this is understood, the response to prof. Lagassé’s concerns becomes clear. Our legal system does not impose its own understandings on people’s consciences. And sometimes ― though not always ― it makes exceptions to its own rules in order to accommodate people’s conscientious objections. This does not mean that the rules to which we make exceptions lack a definitive meaning, or have a lesser standing than others, or that we blur the line between personal views and legal fact.

Consider the case of a Sikh student who wants to wear a kirpan to school. Let’s say the school considers the kirpan to be a weapon. The student, however, considers it to be a religious object, and wearing it a religious duty. The school can have a general rule prohibiting weapons ― but, as the Supreme Court has decided in Multani v. Commission scolaire Marguerite‑Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6, it must still allow the student to bring his kirpan. Now in Multani, the general prohibition did not define a weapon. But what if had done so, and the kirpan clearly fell within that definition? Surely, it would ― and should ― have made no difference to the Court’s decision. That decision would not have meant that the definition was unclear or unimportant, or that the student’s views could replace the “legal fact” of its meaning. What it would have meant is that, because of the conflict between legal fact and conscientious belief, the state had to justify (under s. 1 of the Charter) its insistence on overriding such belief, and that in this particular case, the state’s justification was unpersuasive.

Similarly, in the case of citizenship oath, the question is not whether the Crown has a definitive meaning in Canadian law, but whether the state has sufficient justification to impose this legal meaning on people whose conscientious understanding of a duty of allegiance to that Crown differs from the legal one. To acknowledge that the state doesn’t have good reason to do so would not have compromised the position of the Crown in Canadian law.

What Does This Mean?

Those of you who have been following this blog for a while will recall that I take a lot of interest in oaths; especially, but not exclusively, citizenship oaths. A paper of mine arguing that the Canadian citizenship oath is unconstitutional as an unjustified infringement of the freedom of conscience came out in the last issue of the National Journal of Constitutional Law. The key move in my argument is to say that, since oaths generally implicate the conscience of the persons who take them, their subjective interpretations of the obligations oaths impose on them are determinative, in the same way as religious believers’ interpretations of the requirements of their faith are, and courts are not entitled to tell them that they simply mistaken about the duties they subscribe by swearing the oath. You will also recall that Canadian courts have not seen it fit to embrace that viewpoint. Both Ontario’s Superior Court and its Court of Appeal (as well as, once upon a time, the then-Appellate Division of the Federal Court) have found that the citizenship oath is constitutional, holding that the anti-monarchists who objected to taking it were wrong to understand it as preventing them from holding their beliefs or engaging in pro-republican activities.

So of course I found Orin Kerr’s recent post over at the Volokh Conspiracy about the meaning of an oath, required of U.S. federal employees, to “defend the Constitution of the United States against all enemies … and … bear true faith and allegiance” to it very interesting. Interesting, but also, to me, unsatisfying.

Prof. Kerr notes that

[o]n its face, it’s not totally clear what it means to “defend the Constitution” and “bear true faith” to it. For example, some people support a constitutional amendment to repeal Citizens United, which would cut back on First Amendment protections. If you took the oath, are you obligated to oppose that amendment in order to faithfully defend the Constitution? Or imagine you work in a federal building and there’s a Christmas display that you think violates the Establishment Clause. Does your oath obligate you to take steps to stop the violation, and if so, what steps?

The first of these questions, especially, mirrors the dilemma faced by republicans asked to swear allegiance to the “Queen of Canada,” who must ask themselves whether this allegiance prevents them from holding on to and working to promote their reformist views.

But prof. Kerr accepts, unquestioningly so far as I can tell, that there is a truth of the matter about these questions; and, further, that this truth can be established by reference to history. Now this history is very interesting. The current wording of the oath, prof. Kerr explains, goes back to the aftermath of the Civil War, when the oath in that form was only required of former Confederate soldiers. Others could swear a more general ― though no less vague ― oath to “support” the Constitution. This seems to provide evidence for Liav Orgad’s claim, made in his excellent paper on loyalty oaths, that “the history of the oath is a history of fear,” specifically a fear of disloyalty ― a claim that I endorse and develop in my article. Only later was the obligation to take the oath to defend the Constitution extended to other federal employees, though prof. Kerr does not explain why.

Prof. Kerr concludes that this “historical context suggests” that the oath does not require federal employees

to oppose constitutional amendments or to take down questionable Christmas displays … [It] is probably best understood in its historical context as a promise to oppose political reforms outside the Constitution. You have to stay loyal to the government that is based on the Constitution, and you can’t support a rebellion or overthrow of that government.

This is more or less what the Canadian courts have concluded regarding the meaning of our citizenship oath. But, as I explain in greater detail in my other posts, and in my paper, this approach ignores the distinctive character of an oath. An oath is not a statutory command (though it is of course prescribed by statute). It is an imposition of vague obligations, whose precise significance the oath-taker has to work out for him- or herself, as a matter of conscience. Statutes can and must be authoritatively interpreted by courts, possibly with reference to the historical context in which they were enacted. But no court, in a free society, can tell a person what his or her conscientious duty is, for conscience is an internal tribunal, not answerable to any external one. If a person wants to look to history, or to law, or to anything else, in working out the meaning, to him or her of the oath ― that is to say, his or her conscientious duties ― good and well. But that’s his or her choice, and not, in Lord Acton’s words, the “sublime prerogative assigned to states, or nations, or majorities” ― or to judges.

A Monarchist’s Lament

If you’ve read my bitter vituperations against the decisions of the Ontario courts upholding the constitutionality of the citizenship oath, which requires would-be Canadians to swear “true allegiance to Elizabeth II, Queen of Canada, her heirs and successors,” you might have concluded that I am a flaming republican. But I am, in fact, a monarchist; I believe that Lord Acton was quite right when he described (in his fabulous Lectures on the French Revolution) constitutional monarchy as “the richest and most flexible of political forms.” I oppose the citizenship oath nonetheless and, with respect, think those who are approve of it, including my fellow monarchists (such as Gabriel Grantstein over at Slaw, or Konrad Yakabuski in the Globe and Mail), as well as Justices Morgan and Weiler, miss the point of the challenge to its constitutionality.

Those who defend the oath think that the case it is about the concept of the “Queen” to which the oath refers. They insist that because the Queen symbolizes a political and constitutional system that honours equality, democracy, the Rule of Law, and even the freedom to dissent, the oath, far from disparaging or denying these ideals, honours them too. They argue that because those who refuse to take the oath misunderstand the history and the nature, both legal and political, of the Canadian Crown, their challenge must be rejected

But the key to understanding the challenge to the oath is not the notion of the “Queen”. It is the notion of an oath. An oath ― any oath ― is an appeal to the conscience of the person who swears it. It is an attempt both to make that person figure out what it is that his or her duty under the oath means, just as he or she does with any moral or conscientious duty (to love one’s neighbour, to give to each his own, etc.), and do to bind that person’s conscience actually do this duty. Because an oath is an appeal to conscience, it is not enough to say that those opposed to it misunderstand it. Understanding an oath and figuring out one’s duty arising out of swearing it is a matter of conscience, and as such, it is entitled to respect, be it ever so unreasonable.

(I would add, however, that some of the oath’s defenders, such as Mr. Yakabuski, would really do well to lose their contemptuous tone towards those who interpret it as a personal commitment to a person Mr. Yakabuski himself describes as “a tiny unelected octogenarian with a matching hat and purse.” Mr. Yakabuski asserts that “only … if you have no knowledge of our history … could you take the oath at face value and get hung up on its plain, or literal, meaning.” But he should spare a thought for those who rely on a guidebook produced by the Canadian government, which tells prospective citizens that “[i]n Canada, we profess our loyalty to a person who represents all Canadians and not to a document such as a constitution, a banner such as a flag, or a geopolitical entity such as a country” (2).)

The scope of our legal duties can and must be authoritatively settled by (judicial) authority. The law, whether provisions regarding treason and sedition or those relating to jury duty etc., already defines the responsibilities of citizenship. Courts can, if need be, enforce their interpretations of these duties against those who disagree. The oath, which the government itself seems to consider legally meaningless, adds nothing in this respect. What it does is attempt to go beyond the realm of law, and reach into consciences.

Yet if we wish to call ourselves free, our moral, conscientious duties must be for ourselves to work out. Monarchists do their ― and my ― cause no favours by supporting a legal requirement that people suppress their own moral opinions and blindly accept the judgment of authority as to the scope of their conscientious duties. The constitutional monarchy I believe in is, indeed, a form of government that embraces freedom, dissent, and diversity of views. It goes against these principles, and only gives ammunition to its opponents, when it fails to respect individual conscience.

A Parade of Horribles

I wrote yesterday about the decision of the Court of Appeal for Ontario in McAteer v. Canada (Attorney General), 2014 ONCA 578, which upheld the constitutionality of the oath of allegiance to the Queen which would-be Canadian citizens are required to swear. As I said in that post, I believe that that the Court’s decision is profoundly wrong, as was that of the Superior Court (McAteer v. Attorney General of Canada, 2013 ONSC 5895). In my view, the Court of Appeal (and the Superior Court before it) was wrong to focus on the applicants’ mistaken interpretation of the oath of allegiance as a commitment to the person of the monarch rather the notion of a (constitutional) Crown. The fact that the applicants misunderstand the oath and they exaggerate the obligations that taking it would impose on them cannot end the inquiry into the oath’s constitutionality.

Before explaining why this is so, however, I want to highlight two problems with the Court’s discussion of the meaning of the oath. These problems might not be fatal. I take the point that, as for example Philippe Lagassé explains, the reference to the Queen in the citizenship oath really is a reference to “the state and the source of all sovereign authority,” so that the Court of Appeal is right about the oath’s legally correct meaning. My objection is, as I will explain below, that this is really beside the point. Still, some of the Court’s arguments are problematic, and may colour the rest of its analysis, so they are worth pointing out.

One problem I see is with the Court’s discussion of the history of the oath of allegiance and its place in our constitutional structure is incomplete in that it begins with the Royal Proclamation of 1763 and the Quebec Act, 1774 ― and thus ignores the history of oaths of allegiance in England. The Court uses this history to present the oath as egalitarian and inclusive by virtue of its lack of religious test, while masking its authoritarian origin in the times of Henry VIII and his struggle to assert not only his religious, but also his secular power following his break with Rome, detailed in an excellent recent paper by Liav Orgad. This is, in my view, something of a historical whitewashing. The oath of allegiance is certainly less burdensome now than it used to be, but if one relies on its historical significance, one cannot ignore its origins.

The other point I want to make here concerns the Court’s invocation of the “principle of harmonization” to “suggest” ― although not, as I read the decision, to hold ― “that the oath to the Queen in the Citizenship Act cannot be a violation of rights under the Charter” (par. 58) because it is virtually identical to an oath which the Constitution Act, 1867 requires members of Parliament to swear and which, being constitutionally entrenched, cannot be invalidated on Charter grounds. The Court is simply wrong here. On its logic, since a house of a legislature is authorized to exclude media by virtue of its constitutionally entrenched parliamentary privilege, there would be no constitutional difficulty with a court doing so either; yet the Supreme Court has held that the exclusion of the media from a courtroom infringes s. 2(b) of the Charter, and that while the existence of a discretionary power to exclude is justified under s. 1, this power must be exercised with the Charter in mind. Immunity from Charter review conferred by constitutional entrenchment is an exception, and there is no reason to extend it to rules which are not constitutionally entrenched.

Whatever role these errors have played in its reasoning, the crucial, fatal flaw in the Court of Appeal’s decision is the weight it gives to the applicants’ misunderstanding of the oath. The Court repeatedly cites a passage from R. v. Khawaja, 2012 SCC 69, at par. 82, where the Supreme Court held that “a patently incorrect understanding of a provision cannot ground a finding of unconstitutionality,” but it is inapposite. Even assuming that this holding applies beyond the context of allegations of chilling effect, in which it was specifically made (the full sentence, from which the Court only cited an excerpt, is: “a chilling effect that results from a patently incorrect understanding of a provision cannot ground a finding of unconstitutionality” (emphasis mine)), it does not apply to the oath because the oath is not a “provision.” An oath, as I argue in a forthcoming paper, is not a simple statutory command to do or not to do something. It is an appeal to a the oath-taker’s conscience; it requires the oath-taker to work out the exact nature and scope of the duties it imposes. Oaths are typically (although admittedly not always) required when these duties are impossible to delineate with sufficient specificity, and thus cannot be codified in a statutory provision. The duty of loyalty imposed by the oath of allegiance is a perfect example. The Citizenship Act does not define what it means for citizens to be loyal, to “bear true allegiance” in the words of the oath. Citizens must do that themselves. So while it makes sense to reject an idiosyncratic interpretation of a statutory command, one cannot so easily dispose of a subjective understanding of an oath. The failure to appreciate this taints the Court’s analysis under s. 1 of the Charter, and is at least partly responsible for its rejection of the applicants’ claims that the oath infringes their right to freedom of conscience and religion.

However, before it gets there, the Court commits another blunder by finding that the imposition of the oath does not infringe the freedom of expression of those who must swear it. It the Court’s view, the purpose of the oath is not to “control expression,” while its effects on freedom of expression are merely incidental and do not deserve disapprobation. The claim that a requirement to make a statement with an obvious expressive content does not aim at “controlling expression” is astonishing. The Court asserts that “[t]he substance of the oath and the history of its evolution also support the conclusion that the oath does not have a purpose that violates the Charter” (par. 74), but however innocuous or even worthy the contents of the oath might be, there is no getting away from the fact that the requirement to swear it is a requirement to engage in expression. Indeed, as the Court itself says with approval, “[t]he application judge held … that the purpose of the oath ‘is … one of articulating a commitment to the identity and values of the country'” (par. 72; emphasis added). How one can find that requiring people to a articulate a commitment does not control their expression is beyond me.

Despite its finding that the oath does not infringe s. 2(b) of the Charter, the Court of Appeal moves on to a s. 1 analysis. This draws heavily on the judgment at first instance, and my criticism of that decision applies to that of the Court of Appeal. The Court’s “reasoning” is largely conclusory, such as its bald, unexplained assertion that “[r]equiring would-be citizens to express a commitment to the quintessential symbol of our political system and history serves a pressing and substantial objective” (par. 92). It ignores the alternative forms of the oath that would do a better job of letting people express commitment to Canada and its constitution because they would be better understood. It notes but fails to seriously address the pervasive misunderstanding of the current oath, which extends to government officials, and does not question the capacity of such a widely misunderstood oath to have any meaningful positive effects on those who take it or for their fellow citizens.

Then again, perhaps the Court reveals (albeit unwittingly) its true opinion of the worth of the oath when it notes complacently that a person who swears it is free to recant it without any sort of consequence. Imagine, for a second, a witness who recants his oath to tell the truth; and then imagine, further, a judge who tells him that this doesn’t really matter. The Court is oblivious to the incoherence of asserting that the oath is not a real imposition on citizens because it is meaningless and can be dismissed while arguing that it serves a pressing and substantial objective and has obvious salutary effects.

Finally, the Court also errs in its treatment of the freedom of conscience and religion claims. For one thing, because it fails to appreciate the way in which the oath differs from an ordinary statutory command by enlisting the conscience of the person who swears it, the Court again overemphasizes the applicants’ misunderstanding of the oath. As I explain at greater length my paper, in matters of conscience and religion, subjective understandings are determinative, even if mistaken by some external standard. For another, the Court is wrong both to reject the remedy of exempting those who object to the oath from the obligation to take on the ground that such an exemption would undermine its secular character, and to implicitly conclude that since the applicants’ proposed remedy is unavailable, their substantive claim must be rejected. First, exemptions for religious (and arguably conscientious) objectors have been granted and considered by the Supreme Court, without any argument to the effect that they undermined the secular nature of the rules involved. The fact that Sikh students can wear their kirpans to school in derogation to the general rules prohibiting weapons does not undermine the secular character of these rules. But even if an exemption were not a permissible remedy, the obvious alternative is to invalidate the requirement for everyone, not to maintain it. (This is the Supreme Court’s approach in cases of cruel and unusual punishment ― the Court regards exemptions to mandatory minimum sentences as inappropriate in that context, and requires the mandatory minimum to be struck down.)

The applicants have already said that they would appeal to the Supreme Court. Adam Dodek has tweeted that he expects the Supreme Court to deny leave and, for what it’s worth, I suspect that he is right. But it would be nice if we were wrong. The decision at first instance in this case was bad, and the Court of Appeal’s is, if anything, even worse. It is a parade not merely of mistakes, but of judicial horribles. A cynic who wanted to argue that it is the product of a purely result-oriented reasoning would have some evidence to back up his claim. Regardless, this ruling ought not to be left to stand.