Swearwords without Borders

One rather remarkable feature of the debate about the constitutionality of the citizenship oath, and more specifically of its promise of “true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada,” is that those who believe that the oath is constitutional  insist that the oath really does not mean very much. Those who refuse to take the oath tend to do so because they believe that swearing allegiance to the Queen will impose on them a conscientious obligation not to hold or act on their republican convictions. According to the federal government, which defends the oath, and the judges who have accepted its position (most recently Justice Morgan in McAteer v. Canada (Attorney General), 2013 ONSC 5895), that is not so. Taking the oath does not engage a person to forswear republicanism; it most, it is a commitment to advancing republicanism by constitutional means ― by working to convince Canadians to enact the requisite constitutional amendments.

Interestingly, a similar dynamic seems to exist in the United States. As Josh Blackman explains, a would-be American citizen must swear the following oath (among others):

I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen.

This would seem unambiguously to require a newly naturalized American to “renounce” any other citizenship that he or she might have. Yet as prof. Blackman notes, American law doesn’t prohibit dual citizenship, including for naturalized Americans. If you like your other citizenship, says uncle Sam, you can keep it ― and never mind the oath.

In this post discussing oaths of allegiance, I said that they “are like swearwords ― significant yet meaningless.” It is a common characteristic of foul language or invective that it is neither intended to be nor is taken literally ― and the oaths of allegiance are like that too. As I concluded then, they are “not something to be said in polite company.” 

True Allegiance

I have blogged at great length about the Canadian citizenship oath, which requires naturalized Canadians to swear “true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, [and] Her Heirs and Successors”. So I’m happy to report that all this blogging has led me to produce a (hopefully) scholarly paper, which I will be presenting at a conference on Emerging Issues in Canadian Public Law at the University of Ottawa exactly two weeks from today. I have posted the draft paper on SSRN, and would welcome any feedback. Here is the abstract:

Would-be Canadian citizens are required to swear an oath, which includes a promise of “true allegiance” to the Queen. For some, swearing allegiance to a what they regard as a person embodying inequality, colonialism, and oppression goes against their deeply-held republican or egalitarian values. However, Canadian courts have so far rejected Charter challenges to the citizenship oath.

This article argues that the oath is, nevertheless, unconstitutional, albeit on a basis different from that mostly canvassed by the courts which have considered it. Rather than an infringement of freedom of expression, the citizenship oath should be analyzed as a violation of the freedom of conscience of those required to take it. Like most oaths, it is an attempt not only to impress the importance of the obligation it imposes on those who take it, but also to enlist their sense of right and wrong ― that is to say, their conscience ― in the service of the state’s objectives. 

Because the citizenship oath is a violation of freedom of conscience, it is irrelevant that those who object to it may be misunderstanding its true significance, or the real nature of “the Queen” in Canadian law. As in freedom of religion cases, courts must recognize their subjective conception of their conscientious obligations, and the extent to which taking the oath conflicts with them. With this in mind, it becomes apparent that the reasons advanced to justify the oath under s. 1 of the Charter cannot do so.

You can download the full paper here.

One of the excuses I give myself for spending so much time on this blog is that it will, one day, help my scholarship. Well, here’s the first evidence that this is not entirely wishful thinking. However, as I have now found out, there is quite a way to go between even a series of posts and an academic paper. It is certainly not a matter of stitching the posts together and sprinkling them with scholarly-looking footnotes. My thinking has changed somewhat in the process of writing, and there is, hopefully, more depth to the paper than to the blog posts that preceded it. (This is a lesson, also, for those who might be tempted to appraise blog posts as if they were mini-papers, and to criticize them for not living up to that standard. It is not a standard that blog posts, even relatively long and researched ones, such as many of mine, are meant to attain. The two media are really quite different.) Still, I know that I would never had written this paper if I hadn’t done the preliminary reading and thinking as part of my blogging, and the posts really were helpful in developing my ideas. On the whole, then, a positive experience.

Hornblower and the Oath

I have just come across an excellent illustration of the complex ― I am tempted to say schizophrenic ― relationship between our constitutional law and the monarchy, which is at the heart of the litigation about the constitutionality of the reference to thee Queen in the Canadian citizenship oath. On the one hand, as Justice Morgan explains in his decision in McAteer v. Canada (Attorney General), 2013 ONSC 5895 holding the oath constitutional (which I summarized here), and as Philippe Lagassé further explains, the Queen symbolizes the institution of the monarchy, which, in turn, symbolizes Canada’s constitution ― including its values of freedom, equality, and the Rule of Law. On the other hand, for the applicants in McAteer, and for many other Canadians, the Queen is primarily the kindly old lady whose portraits the federal government is obsessed with hanging all over the place; and this, naturally, raises questions about why exactly this particular old lady, kindly though she is, should be so important to our citizenship and our constitution.

So here is the wonderful illustration of this dichotomy that I wanted to share with you. It comes from, of all places, C.S. Forester’s Hornblower and the Atropos (for those who do not know, one of a long series of novels about a naval officer, Horatio Hornblower, set during the Napoleonic wars). After having been presented to His Majesty George III, Captain Hornblower reflects on the difference between his own feelings about this kindly old gentleman on a throne, and those of his wife:

Hornblower himself fought for his country; it might be better said that he fought for the ideals of liberty and decency against the unprincipled tyrant who ruled across the Channel; the hackneyed phrase “for King and Country” hardly expressed his feelings at all. If he was ready to lay down his life for his King that really had no reference to the kindly pop-eyed old gentleman with whom he had been speaking this morning; it meant that he was ready to die for the system of liberty and order that the old gentleman represented. But to Maria the King was representative of something other than liberty and order; he had received the blessing of the Church; he was somebody to be spoken about with awe.

Now, I doubt that Stephen Harper and the members of his government, much less other Canadians, and least of all the applicants in McAteer, attach a great significance to the monarch’s anointment. However, what they share with Maria Hornblower is that they think of her first and foremost as an actual human being ― not as a legal entity or a constitutional symbol.

This conception, Justice Morgan and prof. Lagassé tell us, is not legally correct. It is, in my view, not correct as a matter of political values ― my own monarchism is like Hornblower’s. But as I have argued in my comment on the McAteer decision, the real issue in considering the constitutionality of the citizenship oath is whether it should matter at all which legal and political conception of the Queen is correct ― whether it is reasonable or fair “to expect laypersons to understand the subtleties of Crown law which, as prof. Lagassé notes, seem beyond the understanding even of some judges.”

What the Hornblower passage tells us is that the views of applicants in McAteer are not just a product of a few hypertrophied consciences, as Justice Morgan seems to suggest. They belong to a very old current of thought, albeit now inflected by very different values than those which originally shaped it. (These egalitarian values, indeed, are closer to those of the rather anachronistic Hornblower than of his wife.) And, judging by its portrait fixation, the current government is ill-positioned to argue that these views are not entitled to concern and respect.

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.

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.

Swearwords

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

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

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

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

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

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

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

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

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

H/T: Larry Solum

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.

Ask Not

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

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

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

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

Empty Promise

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

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

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

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

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

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

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

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

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

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

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

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