McAteer v. Canada (Attorney General)
Between
Michael McAteer, Simone E.A. Topey and Dror Bar-Natan,
Applicants, and
The Attorney General of Canada, Defendant
Michael McAteer, Simone E.A. Topey and Dror Bar-Natan,
Applicants, and
The Attorney General of Canada, Defendant
[2013] O.J. No. 4195
2013 ONSC 5895
Court File No. 05-CV-301832-PD3
Ontario Superior Court of Justice
E.M. Morgan J.
Heard: July 12, 2013.
Judgment: September 20, 2013.
Court File No. 05-CV-301832-PD3
Ontario Superior Court of Justice
E.M. Morgan J.
Heard: July 12, 2013.
Judgment: September 20, 2013.
(113 paras.)
Counsel:
Peter Rosenthal, Michael Smith, Selwyn Pieters and
Reni Chang, for the Applicants.
Kristina Dragaitis and Ned Djordjevic, for the Defendant.
1 E.M. MORGAN J.:-- Under section 3(1)(c) of the
Citizenship Act, R.S.C. 1985, c.
C-29 (the "Act"), a person over 14 years old must take an oath of
citizenship in order to become a Canadian citizen. Section 12(3) of the Act
provides that a certificate of citizenship issued to a new Canadian by the
Minister of Citizenship and Immigration does not become effective until the
oath is taken.
2 The
form of oath is authorized and set out in section 24 of the Act and the
Schedule thereto, as follows:
·
I swear
(or affirm) that I will be faithful and bear true
allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her
Heirs and Successors, and that I will faithfully observe the laws of Canada and
fulfill my duties as a Canadian citizen.
3 The
Applicants submit that the oath to the Queen violates sections 2(b) (freedom of
expression), section 2(a) (freedom of religion), and section 15(1) (equality
rights) of the Canadian Charter of Rights and Freedoms, Constitution Act, 1982, Schedule B to the Canada Act, 1982 (UK), 1982, c. 11 (the "Charter"). They further submit that the oath does not constitute a
reasonable limit on those rights under section 1 of the Charter. The Respondent takes the position that what the Applicants are
seeking is a positive right to citizenship, which is not a right protected by
the Charter; accordingly, the
Respondent submits that the oath to the Queen does not violate any of the
constitutional rights of the Applicants.
4 For
the reasons that follow, the Application is dismissed. The oath to the Queen,
as required by the Act, is a form of compelled speech that prima facie infringes the Applicants' freedom
of expression under section 2(b) of the Charter. At the same time, the oath is a reasonable limit on the right of expression
and is therefore saved by section 1. The oath does not violate either section
2(a) or section 15(1) of the Charter.
I. The Applicants' claims
5 All
three of the Applicants are permanent residents of Canada who wish to become
Canadian citizens. Other than their failure to take the oath of citizenship,
they have each resided in Canada for more than the number of years required to
become new citizens and depose that they have otherwise qualified for
citizenship under the Act.
6 The
Applicant, Michael McAteer, immigrated to Canada from Ireland. He deposes that
his family fought for Irish independence from the British Crown and that he
holds republican beliefs that prevent him from 'taking an oath of allegiance to
a hereditary monarch who lives abroad ..." He further states in his
affidavit that swearing an oath to the Queen, as required by the Act, would
amount to "a betrayal of my republican heritage and impede my activities
in support of ending the monarchy in Canada."
7 The
Applicant, Simone Topey, immigrated to Canada from Jamaica. She explains in her
affidavit that she adheres to the Rastafarian faith. She deposes that to
Rastafarians, the "current society is Babylon" and that the Queen is
regarded as the "head of Babylon". She further states that it would
violate her religious belief to take an oath to the person who is the head of
such a society.
8 The
Applicant, Dror Bar-Natan, immigrated to Canada from Israel. He deposes that
the oath is "repulsive" to him because "it states that some
people, the royals and their heirs, are born with privilege." He further
states that "it is a historic remnant of a time we all believe has
passed", and that it would violate his belief in equality of all persons
to swear allegiance to "a symbol that we aren't all equal and that some of
us have to bow to others for reasons of ancestry alone."
9 The
Application was initiated by Charles Roach, a prominent Ontario lawyer who
passed away in October 2012. He had immigrated to Canada from Trinidad and
Tobago in 1955 and became a lawyer in 1963. Cullity J. set out the salient
features of Mr. Roach's case in a reported decision in his judgment denying
certification of the present claim as a class action. Roach
v. Canada (Attorney General) (2009), 74 C.P.C. (6th) 22,
at paras 18-21; aff'd 84 C.P.C.
(6th) 276 (Ont. Div. Ct).
10 In
1988, Mr. Roach was informed by the Law Society of Upper Canada that he had to
become a citizen by July 1, 1989 in order to continue practicing law in
Ontario. Mr. Roach applied for citizenship at the time and went so far as to
attend a citizenship ceremony, during which he asked the presiding judge
whether he could become a citizen without swearing an oath to the Queen. He
received a negative answer whereupon, due to his conscientious objection, he
refused to take the oath and the certificate of citizenship was withheld from
him.
11 As
it turned out, before the expiry of the Law Society's deadline the Supreme
Court of Canada rendered its decision in Andrews v. Law
Society of British Columbia, [1989] 1 S.C.R. 143
striking down the requirement of Canadian citizenship for those seeking to be
called to the bar. Under amendments to the Law Society
Act that came into force on February 27, 1989, the
criteria for admission to the Ontario bar were amended to bring the law into
compliance with the Andrews
ruling. Mr. Roach was therefore permitted to continue practicing law despite
not having sworn the requisite oath to become a citizen of Canada.
12 It
is fair to say that Mr. Roach's stance as an objector to the oath, although not
successful in its previous legal iterations, see Roach
v. Canada (Minister of State for Multiculturalism & Culture) (1994), 113 D.L.R. (4th) 67 (Fed CA); Roach
v. AG Canada, supra, brought prominence to the issue at hand. He was very active in the
political movement to abolish the monarchy for Canada. In addition, the case of
Charles Roach illustrates that there are real costs to a long-time member of
Canadian society remaining a permanent resident rather than becoming a citizen.
As Cullity J. pointed out, at para. 22 of his judgment:
·
He has turned down an invitation
to apply for appointment as a provincial judge because of a requirement to take
the oath of allegiance, he is unable to vote or run for public office, he is no
longer eligible for Canada Council grants that, as a poet, he previously
received, and he is unable to travel on a Canadian passport.
II. Legislative history
13 Although
the concept of Canadian citizenship itself originated in 1947 with the Canadian Citizenship Act, S.C. 1946, c. 16, s.
1 (the "1947 Act"), the taking of an oath to the sovereign by new
subjects of the Crown pre-dates Confederation. The Québec
Act, 1774, 14 Geo III c. 83, enacted in the wake of the
transfer of Lower Canada from the French monarch to the English Crown, took
into account the sensitivities of the Roman Catholic population of Québec to
the fact that the form of oath at the time made reference to the Protestant
faith. It provided a secular alternative for the first oath specific to persons
newly naturalized in Canada: "I [name] do sincerely
promise and swear, that I will be faithful, and bear true Allegiance to his
Majesty King George ..."
14 An
oath to the Queen as a condition of naturalization across the country was
introduced in the very first parliamentary session following Confederation.
Section 4(2) of An Act respecting Aliens and
Naturalization, 31, V, c. 66 (1869), provided that every
alien, in order to be naturalized as a British subject resident in Canada, had
to swear (or affirm) "that I will be faithful and
bear true allegiance to Her Majesty Queen Victoria, as lawful Sovereign of the
United Kingdom of Great Britain and Ireland, and of the Dominion of Canada ..."
15 The
requirement of taking an oath to the Queen as a condition of citizenship was
re-enacted and imposed on every applicant for citizenship, whether a British
subject or not (except for a limited class of British subjects who had already
been resident in Canada for 5 years and were 'grandfathered' as automatic
Canadian citizens), when Canadian citizenship was first introduced in the 1947
Act. Thirty years later, the oath was once again reconfirmed in the revisions
brought about by the Citizenship Act, S.C. 1974-75-76, c. 108. It is this version of the Act that
contains the oath of citizenship in its current form.
16 As
for the Queen's stature as head of state, the ancient common law recognized the
monarch as the repository of English sovereignty prior to the Norman conquest.
The courts elaborated on and confirmed monarchial authority in the late middle
ages in response to a series of questions posed to them by Richard II. See
Stanley Bertram Chrimes, "Richard II's questions to the judges 1387",
72 Law Q Rev 365-90 (1956). This took into account the limits on royal powers
imposed by Magna Carta, 1215, which was itself followed by the gradual
emergence of habeas corpus and
other relevant enactments and common law restraints on royal power. See 9 W.
Holdsworth, A History of English Law 112 (1926). With all of this, the courts nevertheless confirmed in Godden v. Hales (1686), 2 Shower 475 (KB) that
the Crown sits at the sovereign apex of the legal and political system.
17 The
monarch as head of state was further entrenched by the Act
of Settlement, 1701, 12 & 13 Will III, c. 2, which
set out the rules for succession to the Crown of the United Kingdom (Great
Britain and Scotland). This conception of sovereignty and executive authority
was inherited by Canada in the Constitution Act, 1867, 30 & 31 V, c. 3, section 9, which provides that, "[t]he
Executive Government and Authority of and over Canada is hereby declared to
continue and be vested in the Queen". The role of Her Majesty as sovereign
has also been reinforced in section 41(a) of the Constitution
Act, 1982, which requires unanimity of the federal and
all provincial legislatures in order to enact any amendment to the
constitutional status of "the office of the Queen, the Governor General
and the Lieutenant Governor of a province".
18 Of
course, sovereign powers in the Anglo-Canadian tradition reside not in the
executive alone but in the legislature as well, as reflected in William
Blackstone's articulation of the "king-in-parliament". Sovereignty,
according to this view, vests "in the king's majesty, sitting there in his
royal political capacity, and the three estates of the realm; the lords
spiritual, the lords temporal ... and the commons". W. Blackstone, I Commentaries 149. Again, this conception of
executive and legislative sovereign authority was inherited by Canada in its
founding constitution. Section 17 of the Constitution
Act, 1867 provides that, "[t]here shall be One
Parliament for Canada, consisting of the Queen, or Upper House styled the
Senate, and the House of Commons."
19 Actual
royal power, certainly, has "gradually relocated from the Monarch in
person to the Monarch's advisors or ministers". Black
v Canada (Prime Minister) (2001), 199 D.L.R. (4th) 228, at para. 32 (Ont. C.A.). Nevertheless,
the Queen retains authority over "the prerogative of mercy, the grant of
honours, the dissolution of Parliament and the appointment of ministers"
and other matters commensurate with her stature as national sovereign, Council of Civil Service Unions v. Minister for the Civil Service, [1985] 1 A.C. 374, 418 (HL), even if most of the prerogative powers
are today exercised on advise of the Prime Minister and subject to the Charter. Canada (Prime
Minister) v. Khadr, [2010] 1 S.C.R. 44, at para. 36.
20 The
preamble to the Statute of Westminster, 1931, 22 Geo V, c. 4 (UK) identifies Canada as one of "His Majesty's
Governments". Likewise, the recently enacted Succession
to the Throne Act, 2013, S.C. 2013, c. 6 describes
Canada as one of "the Realms of which Her Majesty is Sovereign". In
Canada's system of constitutional monarchy, the sovereign, like all
institutions of state, exercises power within constitutional limitations. But
there is no doubt that Her Majesty the Queen is Queen of Canada, the embodiment
of the Crown in Canada, and the head of state. Royal
Title and Styles Act, R.S.C. 1985, c. R-12, section 2.
III. Freedom of Expression
21 As
the Supreme Court of Canada pointed out in one of its earliest judgments under
section 2(b) of the Charter,
"[t]he content of expression can be conveyed through an infinite variety
of forms of expression: for example, the written or spoken word, the arts, and
even physical gestures or acts." Irwin Toy Ltd. v.
Québec (Attorney General), [1989] 1 S.C.R. 927, at para.
43. Certain behaviours such as a labour strike, Reference
Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, acts of criminal
violence, RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, at 588, and the display of commercial wares, R. v. Sharma (1991), 77 D.L.R. (4th) 334, at
para. 19 (Ont CA), have been specifically excluded from the ambit of the
constitutional right; otherwise, "s. 2(b) of the Charter
embraces all content of expression irrespective of the particular meaning or
message sought to be conveyed." R. v. Keegstra, [1990] 3 S.C.R. 697.
22 Accordingly,
"if the activity conveys or attempts to convey a meaning, it has
expressive content and prima facie falls within the scope of the guarantee". Irwin Toy, supra, at p. 969. Protected speech therefore includes not only the spoken
word but the choice of language, Ford v. Québec
(Attorney General), [1988] 2 S.C.R. 712, and the right
to receive or hear expressive content as much as the right to create it. Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120. Section 2(b) also guarantees the right to
possess expressive material regardless of how repugnant it may be to others or
to society at large. R. v. Sharpe,
[2001] 1 S.C.R. 45.
23 Most
significantly, "[f]reedom of expression encompasses the right not to express views." Rosen v. Ontario (Attorney General) (1996),
131 D.L.R. (4th) 708, at para. 16 (Ont CA) [emphasis added]. As explained by
Lamer J. (as he then was) in Slaight Communications Inc.
v. Davidson, [1989] 1 S.C.R. 1038, at para. 95,
"[t]here is no denying that freedom of expression necessarily entails the
right to say nothing or the right not to say certain things. Silence is in
itself a form of expression which in some circumstances can express something
more clearly than words could do." A statutory requirement whose effect is
"to put a particular message into the mouth of the plaintiff" would
run afoul of section 2(b) of the Charter. Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, at 267.
24 Indeed,
the right not to express the government's preferred point of view extends to
those who oppose socially positive messages such as health warnings, RJR. McDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 124, and includes even the right to
refrain from expressing objective, uncontested facts. Slaight
Communications, supra, at para. 95. As Chief Justice Lamer explained in Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, at para. 18, individuals are not only
protected from having to articulate a message with which they disagree, but are
also guaranteed the correlative right not to have to listen to such a message.
25 The
Applicants submit that imposing on them, as a condition of citizenship, a
requirement to swear an oath with which they do not agree curtails their
expression in the very way that the courts have said it may not be curtailed.
As Cullity J. pointed out in Roach v. AG Canada, supra, at para. 22
quoted above, the burden that the oath places on their speech, or their desire
not to speak the words prescribed in the Act, is a rather steep one. In a
celebratory statement issued in 2011, the then Minister of Immigration and
Citizenship reconfirmed the weight of that burden, declaring that "[f]ew
things in this world are more precious to us than our Canadian
citizenship." Statement - Minister Kenney
celebrates Citizenship Week, Citizenship and Immigration
Canada, October 17, 2011, http://www.cic.gc.ca/english/department/media/
statements/2011/ 2011-10-17.asp.
26 Despite
the Respondent's surprising argument to the contrary in its factum, the
inability to become a citizen is not the kind of "state-imposed cost or
burden [that is] ... not prohibited [because] ... the burden is trivial or
insubstantial." R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at para. 97. The fact that the Applicants can
remain in the country as permanent residents does not devalue the benefit that
they are unable to access without speaking words they do not wish to speak.
Iacobucci J. put as high a price as possible on it in Benner v. Canada (Secretary of State), [1997] 1 S.C.R.
358 at para. 68: "I cannot imagine an interest more fundamental to full
membership in Canadian society than Canadian citizenship." The burden on
the Applicants' speech -- putting citizenship out of their grasp -- is real and
substantial.
27 The
Respondent contends that the Applicants' Charter claim in effect seeks a "positive right" rather than a
"negative right", and that section 2(b) guarantees only the latter
form of right. Quoting the Supreme Court of Canada in Baier
v. Alberta, [2007] 2 S.C.R. 673, at para. 41, the
Respondent submits that here "what is sought is 'positive government
legislation or action as opposed to freedom from government restrictions on
activity in which people could otherwise freely engage ...'"
28 It
is literally correct to say, as the Respondent does in its factum, that
"the status of citizenship is not an 'activity' in which [the Applicants]
could otherwise freely engage without government enablement". That,
however, does not mean that the burden imposed on their expression is not a
coercive one.
29 L'Heureux-Dubé
J. pointed out in Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995, at para. 79, that "[t]he distinctions
between ... positive and negative entitlements, are not always clearly made,
nor are they always helpful." That observation certainly describes the
arguments made here.
30 On
one hand, the Respondent is right that the Applicants' Charter challenge strives to attain a legislative change permitting them to
access a government-created "platform" -- the hallmark of an
unprotected "positive right". Baier, supra, at para. 36.
On the other hand, the Applicants' challenge strives to avoid being coerced
into words of fidelity to the Queen -- the "platform" of citizenship
is not the goal of their speech/silence but rather represents the club or
carrot which the government holds out to them.
31 The
current challenge is analogous to that in Libman v.
Québec (Attorney General), [1997] 3 S.C.R. 569, where
the challenger sought to fundraise for his cause during the Québec referendum.
The governing regulations denied him the benefit of access to any officially
sanctioned committee that would permit regulated expenses to be incurred during
the referendum period. As with the present Applicants, the challenger sought to
express his view (there through funding a political cause, here through
non-reference to the Queen in the citizenship oath), independent of any
government activity -- but was denied a government-created benefit if he did
so.
32 While
the positive/negative question can thus be looked at in two ways -- i.e. either
as an access-to-platform claim or a denial-of-benefit claim -- the courts have
already determined that citizenship criteria are subject to Charter scrutiny. It does not matter that
there is no constitutional right to citizenship per se. See Lavoie v. Canada,
[2000] 1 F.C. 3, at para. 11 (Fed CA); aff'd [2002] 1 S.C.R. 769. Charter challenges to citizenship criteria or to the citizenship application
process do not seek citizenship, they seek an end to a burden imposed on a
recognized Charter right.
Citizenship cannot, in effect, be a prize that the Act rewards to applicants
who give up a right such as freedom of expression that exists outside of the
citizenship process.
33 It
is as much of a Charter violation
to compel speech by denying a statutory benefit as it is to censor speech by
imposing a statutory punishment; the former "positive"-looking right
is really just the flip side of the latter "negative"-looking right.
A person who cannot access the benefit of citizenship as a consequence of a
rights-infringing provision in the Act deserves a constitutional remedy unless
the impugned provision is saved by section 1. Augier v.
Canada (Minister of Citizenship and Immigration), [2004]
FC 613, at para. 25 (Fed TD).
34 Accordingly,
the guarantee of freedom of expression contained in section 2(b) of the Charter is prima facie infringed by the statutory requirement that the Applicants recite an
oath to the Queen in order to acquire citizenship. The oath of citizenship is a
form of compelled speech that is only permissible if it can be shown to be a
reasonable limit on the right of expression within the meaning of section 1 of
the Charter.
IV. The citizenship oath as a reasonable limit on
expression
35 Since
the Applicants have established that the Act's requirement of an oath to the
Queen is a prima facie breach of
section 2(b) of the Charter, it
is for the Respondent to show that it the oath is, in the words of section 1,
demonstrably justifiable in a free and democratic society. Needless to say, the
proof at this stage of the analysis need not be definitive; indeed, it probably
could not be in the usual courtroom sense of the word "proof". The
Supreme Court of Canada has acknowledged that, ""[d]ecisions on such
matters must inevitably be the product of a mix of conjecture, fragmentary
knowledge, general experience and knowledge of the needs, aspirations and resources
of society". McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at 301.
36 Nevertheless,
the court is mandated under section 1 to investigate the justifications for a Charter breach. The present case does not, of
course, involve criminal justice or entail the potential incarceration of any
person, but rather represents a choice made by Parliament in fashioning the
process of citizenship acquisition. It therefore need not, and probably could
not, be "tuned with great precision in order to withstand judicial
scrutiny". R. v. Edwards Books & Art Ltd., [1986] 2 S.C.R. 713, at 776. The Respondent must, however, provide
what McLaghlin CJC has called a "reasoned demonstration" that the
breach is a justifiable one. RJR. MacDonald, supra, at para. 129.
37 In
order to establish a section 1 justification, the Respondent must first
establish that there is a sufficiently important objective sought to be
accomplished by the measure in issue -- i.e. the oath. Reference
re sections 193 & 195.1(1)(c) of the Criminal Code (Canada) (Prostitution Reference), [1990] 1 S.C.R. 1123, at para. 90. It must then demonstrate that
this measure is designed to achieve its objective, and is not based on
arbitrary, unfair, or irrational considerations. Following that, the Respondent
must show that, even if rationally connected to its objective, the oath impairs
"as little as possible" the Applicants' right or freedom. R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R.
295, at para. 139. Finally, the Respondent must then explain to the court's
satisfaction the "proportionality between the effects of the [required
oath] ..., and the objective which has been identified as of 'sufficient
importance'". R. v. Oakes,
[1961] 1 S.C.R. 103, at para. 70.
a. The pressing and substantial objective
38 Counsel
for the Respondent describes the objective of the citizenship oath as follows:
·
The purpose of the oath
requirement including an oath of allegiance to the Queen is to ensure a public,
symbolic avowal of commitment to this country's constitutionally entrenched
political structure and history, during the solemnities of the citizenship
ceremony, as a condition of acceding to full membership in the Canadian polity.
The language of the oath reflects Canada's current political reality and constitutional
order.
39 The
Applicants respond by submitting polling data suggesting that for contemporary
Canadian society the Queen may not serve the symbolic function that the oath
seeks to reinforce. In oral argument, counsel for the Applicants supported this
approach by asking, rhetorically, why it is pressing and substantial objective
to swear allegiance to the Queen as opposed to an oath to Canada or its
constitution. Similar sentiments are expressed by the Applicants in their
affidavits. Each indicate that they object to the monarch finding her way into
the citizenship oath, but that they would have no objection to swearing an oath
to Canada or its laws.
40 With
respect, the argument presented by the Applicants does not establish the
conclusion that they draw. Nothing in the Applicants' argument takes issue
with, or counters, the objective of ensuring during the citizenship ceremonies
"a public, symbolic avowal of commitment" to the country and its
established order. Indeed, the Applicants and the Respondents appear to share
that objective, but each seeks to achieve it with a different form of words.
41 The
Applicants may disagree with the oath as a viable method of accomplishing the
legislative objective. That disagreement will be discussed below in terms of
whether the means used by Parliament are appropriate or proportional to the
ends it seeks to accomplish. However, as indicated above, the Applicants take
no real issue with the legislative objective of expressing commitment to the
country, or with its characterization as pressing and substantial; frankly, it
is difficult to see how anyone could argue with the pressing and substantial
nature of that objective, given the context of the Act in which the oath is set
out and the ceremony at which it is administered.
b. The oath as a rational measure
42 The
Applicants argue that the Queen stands for social hierarchy and elitism, and
that there is no rational basis for her presence in a statement of allegiance
to the nation. Their contention is that the notion of personal fidelity to the
monarch is so antiquated and antithetical to modern Canada that the oath
alienates new Canadians more than it reflects their membership in the polity or
binds them to it in a community of status. They therefore argue that it is an
arbitrary and irrational way to accomplish the stated objective that motivates
the citizenship oath.
43 The
Applicants' affidavit material addresses this view, describing their perception
of the monarchy as essentially undemocratic, inegalitarian, and a figure that
runs counter to what they conceive as the essence of Canadian society. They
also submit statistical data showing that the percentage of new Canadians of
British descent has decreased dramatically since the early decades after
Confederation, and they surmise that the personal oath to a monarch of British
heritage sends a divisive and elitist rather than a unifying and all-inclusive
message.
44 The
Applicants may not be in favour of the continuing historic arrangement, but in
analyzing the rationality of Parliament's choice of an oath to the Queen one
cannot ignore the fact that the monarch is Canada's constitutional head of
state. Whereas in analyzing the prima facie infringement of their rights the Applicants are entitled to insist
on remaining silent even with respect to objectively unassailable facts, in
making a section 1 rational connection argument those objective facts -- the
foremost of which is the Queen's constitutional status -- must be taken into
account.
45 In
Chainnigh v. Canada (Attorney General), 2008 FC 69, the Federal Court had occasion to consider, and
dismiss, similar arguments in the context of a Canadian Forces officer who
challenged various expressions of loyalty required during the course of his
military service. As Barnes J. put it, at para. 49, "the fact remains that
our present ties to the British monarchy are constitutionally entrenched and
unless and until that is changed there is legitimacy within our institutional
structures for demanding, in appropriate circumstances, expressions of respect
and loyalty to the Crown."
46 It
is certainly rational for Parliament to have embraced an oath that references
in a direct way Canada's official head of state. Whatever problems the
Applicants think are associated with the monarchy, it is not irrational for
Parliament to have selected a figure that has been throughout the country's
history, and continues to be until the present day, a fixture of its
constitutional structure.
47 Whether
or not there is reliable polling data to suggest what Canadians' current
attitude toward the Queen might be is not a relevant consideration here. By way
of analogy, French and English are Canada's official languages, and given their
constitutionally entrenched status it is rational for Parliament to require the
oath of citizenship in either of those languages. That would remain true even
if polling data could be produced showing that some other language has become
more prevalent among new Canadians.
48 The
constitution contains universal rights that exist in most liberal societies,
such as freedom of expression, as well as "a unique set of constitutional
provisions, quite peculiar to Canada", that in many ways define the
nation. Attorney General of Québec v. Québec Protestant
School Boards, [1984] 2 S.C.R. 66, at 79. Among the
latter are any number of clauses that privilege foundational aspects of
Canadian society: French-English bilingualism, common law-civil law
bijuridicalism, a parliamentary system, federalism, aboriginal treaty rights,
and the status of Her Majesty, to name but a few. It would be entirely rational
for Parliament, if it so desired, to fashion an oath of citizenship that
referenced any such defining element established by the country's most
fundamental law.
c. The minimal impairment of rights
49 While
the citizenship oath is a rational choice, is it one that impairs expression as
little as possible?
50 To
reiterate what was said at the outset of the section 1 discussion, this inquiry
is not an exact science. The Supreme Court of Canada has observed that,
"[t]he analysis under s. 1 of the Charter must be undertaken with a close attention to context." Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at para. 87. Thus, while the Court has made it
clear that "Parliament is not required to choose the absolutely least
intrusive alternative", R. v. Downey, [1992] 2 S.C.R. 10, at 37, the question remains whether there is
some other method available that would be less intrusive on the Applicants'
rights but "which would achieve the objective as effectively". R. v. Chaulk, [1990] 3 S.C.R. 1303, at 1341.
51 The
Applicants' affidavits are replete with descriptions of how reference to the
Queen is contrary to their conception of equality and democracy, how it
perpetuates hereditary privilege, how it connotes British ethnic dominance in
Canadian society, and how it is antithetical to minorities' identity and
rights. They concede that some form of oath might be acceptable, but they
submit that it must contain a message that they can pronounce in good
conscience so that their right to free expression is not so severely impaired.
As it is, the Applicants state that while they could physically mouth the words
of the oath, they cannot do so if they are to take the message of the oath
seriously and adhere to it faithfully.
52 The
Applicants' record contain examples of citizenship oaths from other democratic
nations such as the United States, and even Australia where the Queen is
likewise titular head of state, where the expression of fidelity is to the
country, its laws, and its heritage, but not to a person of any special,
elevated status. Counsel for the Applicants contends that the fact that other
comparable societies manage to confer citizenship without an oath that is
personalized to a national figure, is indicative that the means chosen by
Parliament to accomplish its goal does not represent a minimal impairment of
freedom of expression.
53 A
similar argument was put forward by an applicant for citizenship in Re Heib (1980), 104 D.L.R. (3d) 422 (Fed Ct
TD). Like the Applicants here, the appellant in Re Heib "interprets the oath as a binding promise by him to bear
allegiance to a living person, Queen Elizabeth, and to her successors. He says
he cannot bring himself to swear allegiance to any living person."
Likewise, Charles Roach in his Federal Court litigation held fast to the view
that "a public oath is the most solemn rite and that its terms must be
faithfully observed." Roach v. Canada (FCA), supra, at para.
21 (per Linden J.A., dissenting).
54 Much
as this high respect for the oath of citizenship is admirable, it becomes
problematic if the oath itself is misinterpreted. This court has no reason to
doubt, and no inclination to inquire into, the bona
fides of the Applicants' beliefs and viewpoints. That,
however, does not mean that a misunderstanding on the Applicants' part must be
taken as being true.
55 The
Federal Court in Re Heib viewed
that appellant's similar objection to the oath as misguided. Collier J., at
para. 8, preferred the interpretation that "the oath can be regarded, not
as a promise to a particular person, but as a promise to the theoretical
political apex of our Canadian parliamentary system of constitutional
monarchy." Likewise, the Federal Court of Appeal in Roach read the reference to the Queen as a
reference not to the person but to the institution of state that she
represents. Macguigan JA, for the majority, indicated at para. 93 that the
oath, properly understood, required a citizenship applicant to simply
"express agreement with the fundamental structure of our country as it
is."
56 The
Appellants have rejected these interpretations, opting to apply a "plain
meaning" to the reference to the Queen in the citizenship oath.
57 It
appears that the Applicants have not embraced the prevalent view that eschews
"plain meanings" as an approach to legal texts. Contemporary
jurisprudence has for the most part seen so-called plain meaning
interpretations as misleading, concluding that, where such plain meanings are
invoked, it is as often as not the case that "the context and background
[drive] a court to the conclusion that 'something must have gone wrong with the
language.'" Chartbrook Limited v. Persimmon Homes
Limited, [2009] UKHL 38, at para. 14. In the Applicants'
view, however, the meaning of the citizenship oath -- in particular the
reference to the Queen -- is in need of no further interpretation. They simply
object to the meaning which they view as plain on the face of the oath.
58 In
fact, as indicated above, the Applicants take the plain words of the oath with
much solemnity. They adopt the same posture as the appellant in Re Heib, who, at para. 7, "said he could
have, at the hearing before the Citizenship Judge, taken the designated oath,
but ... [h]is conscience ... would not allow him to do that." As counsel for
the Applicants states in his factum: "[t]he insistence on the Oath to the
Queen is an obstacle only to those who, like the Applicants, do not support the
Monarchy and also take oaths very seriously."
59 It
would seem, however, that the Applicants' problem is not so much that they take
the oath seriously. Rather, their problem is that they take it literally.
60 In
the first place, Her Majesty the Queen in Right of Canada (or Her Majesty the
Queen in Right of Ontario or the other provinces), as a governing institution,
has long been distinguished from Elizabeth R. and her predecessors as
individual people. Thus, for example, Canada has divided sovereignty, with both
the federal and provincial Crowns represented by the Her Majesty. In R. v. Secretary of State for Foreign and Commonwealth Affairs, ex
parte Indian Association of Alberta, [1982] QB 892, at
916 (CA), Lord Denning explained that "the Crown was no longer single and
indivisible", but rather had Canadianized as "was separate and
divisible for each self-governing dominion or province or territory."
61 One
would presume that the Applicants understand that, despite the words used in
our constitutional practice, there has never been a literal dicing or
replication of the Queen. She "may for one aspect and for one purpose fall
within Sect. 92 [and] may in another aspect or another purpose fall within
Sect. 91," Hodge v. The Queen (1883), 9 App Case 117, at 127 (PC), but she does so figuratively,
not literally.
62 Moreover,
at least since the writings of A.V. Dicey and Walter Bagehot in the latter half
of the nineteenth century, the Crown as a symbol of the constitutional monarchy
is not generally conceived as an arbitrary authority. In fact, "[t]he
Queen is only at the head of the dignified [i.e. formal] part of the
Constitution. The Prime Minister is at the head of the efficient [i.e.
political] part." W. Bagehot, The English
Constitution (1st edn. 1877) (New York: Cosimo Classics,
2007), at 296. Together, these institutional embodiments of legal sovereignty
are more accurately conceived as representing "the rule of law as a
fundamental postulate of our constitutional structure." Roncarelli v. Duplessis, [1959] S.C.R. 121, at
142.
63 Not
only is the Canadian sovereign not foreign, as alleged by the Applicants in
identifying the Queen's British origin, but the sovereign has come to represent
the antithesis of status privilege. For one thing, the Crown is, inter alia, the repository of responsibility
toward aboriginal peoples. Guerin v. The Queen, [1984] 2 S.C.R. 335, at 376.
64 The
Royal Proclamation of 1763, for example, was described by Laskin J. (as he then
was) as a form of "Indian Bill of Rights". Calder
v. Attorney General of Canada (1973) 34 D.L.R. (3d) 145,
at 203 (SCC). It was therefore the Crown, or the royal sovereign, that first
acknowledged aboriginal rights in Canada. In Ex parte
Indian Association of Alberta, supra, at 916, Lord Denning concluded that "the obligations to which
the Crown bound itself in the Royal Proclamation of 1763" continue apace
in "the territories to which they related and [are] binding on the Crown
... in respect of those territories."
65 As
indicated above, the Applicants depose that they find it "repugnant"
to swear an oath to a foreign person that represents hierarchical authority and
privileged status. It is more plausible, however, that the oath to the Queen is
in fact an oath to a domestic institution that represents egalitarian
governance and the rule of law.
66 In
fact, the Canadianization of the Crown, along with all the other institutions
of constitutional government, "was achieved through legal and political
evolution with an adherence to the rule of law and stability. The proclamation
of the Constitution Act, 1982
removed the last vestige of British authority over the Canadian Constitution
and re-affirmed Canada's commitment to the protection of its minority,
aboriginal, equality, legal and language rights, and fundamental freedoms ..."
Reference re Secession of Québec,
[1998] 2 S.C.R. 217, at para. 46.
67 In
interpreting the oath in a literalist manner, the Applicants have adopted an
understanding that is the exact opposite of what the sovereign has come to mean
in Canadian law. Little wonder, then, that they perceive the oath to represent
a maximal rather than a minimal impairment of their rights.
68 The
normative clash that forms the essence of their position is premised on a
misunderstanding born of literalism. Once the Queen is understood, in context,
as an equality-protecting Canadian institution rather than as an aristocratic
English overlord, any impairment of the Applicants' freedom of expression is
minimal.
·
d. Proportionality of the oath's
objective to its effects
69 As
with other cases involving expression in a political context, stacking the
citizenship oath up against the rights of those who disagree with it poses a
problem that is, once again, "difficult, if not impossible, to measure
scientifically". Harper v. Canada (Attorney
General), [2004] 1 S.C.R. 827, at para. 79. The court,
however, is entitled not only to consider the evidence in its proper context,
but to apply some common sense to the analysis. It is certainly relevant to
consider whether, as the Applicants argue, the oath mandated by the Act is
"so arbitrary and unreasonable that it detracts from the value of Canadian citizenship." Lavoie
v. Canada, [2002] 1 S.C.R. 769, at para. 59 [emphasis in
original].
70 The
key to the proportionality test under section 1, as with the test for arbitrary
deprivations of the section 7 right to life, liberty, and security of the
person, is to combine logic with empirically discernible facts -- i.e. "to
evaluate the issue in the light, not just of common sense or theory, but of the
evidence." Chaoulli v. Québec (Attorney General), [2001] 1 S.C.R. 791, at para. 150. While the legal onus is on the
Respondent to establish that the legislation falls within reasonable limits,
the risk of empirical uncertainty with respect to the section 1 evidence is, in
effect, shared by both parties. See Sujit Choudhry, "So what is the real
legacy of Oakes? Two decades of proportionality analysis under the Canadian Charter's section 1" (2006), Sup Ct L Rev
501, at 530.
71 Accordingly,
the government party must provide evidentiary support for its position about
the salutary effects of its actions. On the other hand, the challenging party
must demonstrate that its position as to the deleterious effects of the state
action has a modicum of credibility, or at least makes logical sense. Dagenais v. Canadian Broadcast Corporation,
[1994] 3 S.C.R. 835, at 884, 888.
72 The
Applicants are of the view that the oath to the Queen is not only itself an
instance of compelled speech but that it will, if taken seriously, forever
restrict their freedom to express dissenting views. One of the Applicants, Dror
Bar-Natan, sums up this viewpoint succinctly in his affidavit, deposing that if
he is compelled to take the oath, "I will be bound in allegiance to the
monarchy, and unlike born-Canadians, I will be morally bound to support
it."
73 With
all due respect, the notion that the citizenship oath represents a restriction
on dissenting expression, including any expression of dissent against the Crown
itself, is a misapprehension of Canadian constitutionalism and Canadian
history. Differences of opinion freely expressed are the hallmarks of the
Canadian political identity, and have been so since the country's origins. As
Rand J. put it in Boucher v. The King, [1951] S.C.R. 265, at 288: "[f]reedom in thought and speech
and disagreement in ideas and beliefs, on every conceivable subject, are of the
essence of our life."
74 Although
the Applicants correctly perceive the oath as a vow of loyalty, they
misconceive the notion of loyalty in Canada. Ironically, they appear to adopt
what historians have labeled the 'loyalist myth' about the founding of the
country, and characterize the citizenship oath in terms reminiscent of the
traditional characterization of the country's 18th century 'loyalist' settlers.
This myth of supposed blind faith in royal authority, and the explosion of that
myth, is important to understanding Canadian nationhood; indeed, it reflects
"the value system of a society writ metaphorically." Jo-Ann Fellows,
"The Loyalist Myth in Canada", in: Historical
Papers, 1971, Canadian Historical Association 94, at
104.
75 As
historians explain it, the 'loyal' half of the continent that received its
first constitution, the Constitution Act, 1791, 31 Geo 3 c. 31, in the wake of the American Revolution, and that
eventually formed an independent confederation under the Constitution Act, 1867, was not founded on
uncritical acceptance of Empire or loyalty to the Crown. J.M. Bumsted, Understanding the Loyalists (Sackville, NB:
Centre for Canadian Studies, Mount Allison University, 1986), at 12. Rather,
the loyalists shared with their counterparts to the south the ethos of dissent
against authority - albeit democratic rather than revolutionary dissent. Arthur
Johnson, Myths and Facts of the American Revolution (Toronto, 1908), at 188.
76 History
teaches that what distinguished those who remained with the Crown was not
thoughtless fidelity to the monarch: "[b]oth patriots and loyalists had
grievances against the King, George the Third." Constance MacRae-Buchanan,
"American Influence on Canadian Constitutionalism", in: J. Ajzenstat,
ed., Canadian Constitutionalism 1791-1991, Canadian Study of Parliament Group (1991), at 154. Rather, what
distinguished these proto-Canadians from their southern counterparts was their
notion of loyal opposition -- i.e. the ability to dissent from within the fold.
Ibid., at 147.
77 Those
living in, and fleeing to, the colonial precursors to Canada remained 'loyal'
to the concept that loyalty and dissent can live together. Janice Potter,
"The Lost Alternative: the Loyalists in the American Revolution"
(1976), 27 Hum Assoc Rev 89. The earliest Canadians, it turns out, "looked
... to a pluralistic society and produced the first significant justification
of partisanship in American political thought." MacRae-Buchanan, supra, at 154. As one historical study puts
it, the 'loyalists' who became Canadians were (and one could say still are)
"cursed with an open mind." Wallace Brown and Hereward Senior, Victorious in Defeat: the Loyalists in Canada
(Toronto, 1984), at 15.
78 One
of the Applicants, Simone Topey, deposes that if she were to take the oath of
Canadian citizenship she "would feel bound by that oath to refrain from
participating in such [anti-monarchist] political movements". That belief
is doubtless sincere, but it is premised on a mistake. The nation was born in
debate rather than revolution, reflecting a commitment to engagement even while
disagreeing with each other and with the governing Crown. Ged Martin,
"Introduction to the 2006 Edition", in: Confederation
Debates in the Province of Canada, 1865, P.B. Waite, ed.
(Montreal: McGill-Queen's University Press, 2nd edn., 2006), at vii, ix.
79 It
is in this light -- a heritage of debate and dissent -- that one can best
understand Canada's tradition of permitting all viewpoints, including advocacy
directly contrary to the existing constitutional order. Thus, for example, not
only is advocating abolition of the monarchy explicitly permitted, Committee for the Commonwealth of Canada, supra, but the prospect of separation from the
United Kingdom and secession of a province both form the subject of legitimate
legal discourse. Reference re Resolution to Amend the
Constitution ("Patriation
Reference"), [1981] 1 S.C.R. 753; Reference re Secession of Québec, [1998] 2
S.C.R. 217. Moreover, a political party dedicated to constitutional fracture
can form Her Majesty's Loyal Opposition in Canada's Parliament. David E. Smith,
Across the Aisle: Opposition in Canadian Politics (Toronto: University of Toronto Press, 2013), at 85-86.
80 I
accept that the Applicants' beliefs are subjectively sincere, and so the
deleterious effect of the oath is not nil. Syndicat Northcrest
v. Amselem, [2004] 2 S.C.R. 551, at para. 68. Given that
these beliefs about the oath to the Queen reflect a fundamental
misapprehension, however, it is difficult to attribute them great objective
weight. On the other hand, the salutary effect of an expression of fidelity to
a head of state symbolizing the rule of law, equality, and freedom to dissent,
is substantial.
81 In
requiring a vow of commitment to national values at the moment of citizenship,
the Act, as indicated earlier in these reasons, places a limit on free speech;
but it does so in a way that is appropriate to the free and democratic society
that is Canada. Indeed, the Act, with its mandatory oath, restricts a Charter right in a way "that reflects the
very purpose for which rights were entrenched", Lorraine E. Weinrib,
"The Supreme Court of Canada and Section 1 of the Charter" (1988), 10
Sup Ct L Rev 469, at 494. As a statement that embraces constitutional values,
it is a rights-enhancing measure that is justified under section 1 of the Charter.
82 Accordingly,
notwithstanding that it is a prima facie violation of section 2(b) of the Charter, the oath to the Queen is constitutionally valid.
V. Sections 2(a) and 15(1) of the Charter
83 Unlike
the challenge under section 2(b) of the Charter, the Applicants have not established that the citizenship oath rises
to the level of a prima faci e
infringement of either section 2(a) (freedom of religion) or section 15(1)
(equality rights).
84 In
evaluating a claim of freedom of religion, it is important to keep in mind
that, "both purpose and effect are relevant in determining
constitutionality; either an unconstitutional purpose or an unconstitutional
effect can invalidate legislation." R. v. Big M
Drug Mart Ltd., supra, at para. 80. It is equally important to recall that,
"[f]reedom in a broad sense embraces both the absence of coercion and
constraint, and the right to manifest beliefs and practices." Ibid., at para. 95.
85 No
one contends, and it could not seriously be argued, that the citizenship oath
has a religious purpose. While the Applicants complain that there are religious
limitations on who can become the monarch (the Act of
Settlement still prohibits Roman Catholics from
ascending to the throne), the purpose of the oath in Canada is the strictly
secular one of articulating a commitment to the identity and values of the
country.
86 The
Applicant, Simone Topey, however, deposes that the effect of the oath is to
infringe her religious freedom by forcing a choice between citizenship and
making a vow that is contrary to her faith. To be clear, there is no contention
that the Act, in mandating the oath, singles out any one Applicant or is aimed
at any one religion; rather, the point is that its universal application to all
citizenship candidates has a detrimental impact on Ms. Topey.
87 The
Supreme Court of Canada addressed this type of claim in Alberta
v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R.
567, where members of a minority religious community claimed that the province
of Alberta's requirement of a photo on a drivers' license violated a tenet of
their faith. In a description that could be equally apt in the present case,
McLaughlin CJC stated, at para. 39: "Much of the regulation of a modern
state could be claimed by various individuals to have a more than trivial
impact on a sincerely held religious belief. Giving effect to each of their
religious claims could seriously undermine the universality of many regulatory
programs ..."
88 In
Hutterian Brethren, the
government conceded that its legislation breached the challengers' religious
freedom for the purpose of enhancing public safety. The simple solution
articulated by the court, at para. 96, was for those effected by the impugned
law to "hire people with drivers' licenses for this purpose, or to arrange
third party transport to town for necessary services, like visits to the
doctor". Since the case was seen as pitting the utility and security of
the many against the disutility and inconvenience of the few, the court readily
concluded that the license requirement constituted a proper balance that was
justifiable under section 1.
89 The
citizenship oath has much in common with the drivers' license photograph in
that it is equally a universal requirement of the state applied to applicants
without regard or reference to religion. The oath, however, presents an even
stronger case for upholding the state action since the challengers' section
2(a) objection -- the deleterious effect on a sincerely held religious belief
-- runs counter to the very object of holding up constitutional values for new
citizens. The freedom of religion challenge here illustrates the observation by
Abella J. in Bruker v. Markovitz,
[2007] 3 S.C.R. 607, at para. 2, that "[n]ot all differences are
compatible with Canada's fundamental values and, accordingly, not all barriers
to their expression are arbitrary."
90 To
the extent that the oath to the Queen reflects a commitment not to inequality
but to equality, and not to arbitrary authority but to the rule of law, it is
not only a unifying statement but a rights-enhancing one. In taking the
position that the mere recitation of the oath is an infringement of her
subjectively held religious belief, Ms. Topey runs up against the settled
notion that the rights of some cannot be a platform from which to strike down
the rights of others.
91 The
Supreme Court of Canada embraced this notion in addressing the Charter arguments in Reference
re Same-Sex Marria ge, [2004] 3 S.C.R. 698. The court
stated emphatically, at para. 46, that "[t]he promotion of Charter rights and values enriches our society
as a whole and the furtherance of those rights cannot undermine the very
principles the Charter was meant
to foster." Likewise, an oath of citizenship that references a symbol of
national values enriches the society as a whole, and does not undermine the
rights and freedoms that the society and its head of state foster and
represent.
92 Accordingly,
while the section 2(a) challenge here bears resemblance to the section 2(a)
challenge in Hutterian Brethren,
the analysis need not proceed to section 1. Rather, it suffices to say that
while the subjective religious beliefs of the Applicants (or at least one of
them) may be effected, the court could not order an accommodation of Ms.
Topey's or any of the other Applicants' religious particularity in the face of
the secular universality of the Act and the oath. The Applicants' desired
remedy would itself undermine the values enshrined in section 2(a) of the Charter.
93 An
accommodation of religion such as that sought here -- taking account of Ms.
Topey's personal religious beliefs in the context of a non-religious
citizenship procedure -- would be analogous to a public school board
accommodating a religious group by de-secularizing its curriculum. In other
words, it would amount to a form of accommodation that the Supreme Court has
said is impermissible. S.L. v. Commission scolaire des
Chênes, [2012] 1 S.C.R. 235. After all, it stands to
reason that, "state sponsorship of [or support for] one religious
tradition amounts to discrimination against others." Ibid., at para. 17.
94 Accordingly,
the Act does not amount to a prima facie violation of freedom of religion in the way that it does for freedom
of expression. As Deschamps J. put it in S.L., at para. 23, "it is not enough for a person to say that his
or her rights have been infringed ..." Freedom of religion under section
2(a) of the Charter has both a
subjective and an objective, societal component, both of which must be shown to
be infringed before moving on to section 1. The Applicants have not satisfied
that test.
95 Turning
to the section 15(1) claim raised by the Applicants, two of the three of them
(Mr. McAteer and Mr. Bar-Natan) identify the ground of discrimination against
them as one of political belief. Mr. McAteer states that he believes in
republicanism, while Mr. Bar-Natan states that he believes in a
non-hierarchical society. Ms. Topey, as noted above, claims interference with
freedom of religion; and although she bases her argument more on section 2(a)
than section 15(1), she raised the issue in a way that is closely related to a
claim of discrimination on religious grounds. Further, Cullity J. made it clear
in Roach, supra, at para. 17, that an opposition to the entrenchment of "racial
hierarchies", and thus to racial discrimination, was a significant part of
Charles Roach's original claim in this case.
96 Race
and religion are specifically enumerated grounds of prohibited discrimination
under section 15(1) of the Charter. Furthermore, the Supreme Court of Canada reasoned in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, at 219, that a ground of discrimination is an
analogous Charter ground if it is
based on characteristics that are immutable, or changeable only at an
unacceptably high cost to personal identity. Recent case law has suggested that
section 15(1) of the Charter can
be invoked "to protect against discriminatory treatment of a person on
account of having a political belief." Condon v.
Prince Edward Island (2002), 214 Nfld. & P.E.I. Rep
244, at para. 49 (P.E.I.S.C.); aff'd on other grounds 253 Nfld. & P.E.I. Rep 265 (P.E.I.C.A.).
97 Whether
the Applicants' claim is based on racial discrimination, religious
discrimination, or the somewhat more novel ground of political belief
discrimination, there is sufficient evidence in the record to consider a
section 15(1) challenge alleging that the oath to the Queen violates equality
rights.
98 The
claims of discrimination on the grounds of religion and race are raised as
purely subjective matters by Ms. Topey (and formerly by Mr. Roach). There is no
discriminatory purpose in requiring the oath, and there is likewise no
objective evidence that it has a discriminatory effect -- that is, no
statistical evidence or demographic data to establish that the requirement of
an oath to the Queen has a disparate impact on religious or racial minorities.
Absent evidence of discriminatory purpose or impact, there is no basis on which
a Charter challenge based on
unequal treatment can succeed. Trinity Western
University v. British Columbia College of Teachers,
[2001] 1 S.C.R. 772, at para. 35.
99 As
for the claim of political belief discrimination raised by Mr. McAteer and Mr.
Bar-Natan, this claim is equally unsubstantiated in the evidentiary record.
These two Applicants no doubt feel that the impact of the citizenship oath is
discriminatory toward those with their republican and anti-hierarchical
beliefs, but there is no evidence that any particular political movement or
group has been adversely impacted by these measures. Indeed, if anything the
evidence in Canada, where there are many dissenting political groupings and
movements -- including, as indicated above, a thriving anti-monarchist movement
-- is to the contrary.
100 What
the claim of political belief discrimination really reduces to is a claim that
the oath discriminates against those who object to the oath. It is self-evident
that a claim under section 15(1) cannot be so finely tuned to the very measure
being challenged lest every enactment be labeled discriminatory.
101 That
said, the Applicants' argument here is closely allied with their overall claim
that they are discriminated against on the grounds of their non-citizenship
status. They submit that since persons who are Canadian citizens by birth do
not need to take an oath to the Queen, applicants for citizenship by naturalization
are inherently discriminated against by requiring them to take an oath. Those
who, like the Applicants, hold political beliefs that oppose the content of the
oath, are the ones who feel this discrimination the most.
102 The
Applicants' claim of discrimination on the ground of (non-)citizenship,
however, attempts to prove too much. While it is impermissible for government
to distinguish between citizens and non-citizens in certain other contexts that
are not intrinsically related to citizenship, Andrews, supra, the very
concept of citizenship is premised on there being a legal distinction between
citizens and others. "Citizenship", according to Rand J. and just
about every other jurist who has written about the issue, "is membership
in a state". Winner v. S.M.T.,
[1951] S.C.R. 887, at 918. Needless to say, the very existence of a category of
membership also signifies the existence of non-members.
103 For
this reason, the courts in Canada have perceived citizenship to be a status
that is "determined by Parliament under subsection 91(25) of the British
North America Act, 1867 ... and is a political prerogative derived from the
sovereignty of the nation." Lavoie (FCA), supra, at para.
11. If an immigrant and a citizen were required to be treated equally within
the meaning of section 15(1) of the Charter, the concept of citizenship would disappear. Accordingly, "one
cannot even speak of the possibility of a breach of the equality principle when
comparing the privileges of citizenship to those accorded to immigrants." Ibid., at para. 9.
104 Citizenship,
as Linden JA indicated in Lavoie,
at para. 125, "is a cherished privilege, not for the pecuniary benefits
which accrue to its holders, but for the bonds that it creates." Likewise,
when Lavoie reached the Supreme
Court, the plurality judgment by Bastarache J. emphasized, at para. 57, that
"citizenship serves important political, emotional and motivational
purposes ... it fosters a sense of unity and shared civic purpose amongst a
diverse population." In much the same way, the oath of citizenship is an
articulation of the value-laden glue of which those bonds are composed.
105 Bonds
by definition separate people within from people without. This fact has been
the subject of critique by political theorists and legal scholars, who have
pointed out that the political and material advantages given to birthright
citizens raises for some a "moral disdain against acquisition and transfer
rules that systemically exclude prospective members on the basis of ascriptive
criteria." Ayelet Shachar and Ran Hirschl, "Citizenship as Inherited
Property" (2007), 35 Political Theory 253, at 255. It is this sentiment
that is reflected in, for example, Mr. Bar-Natan's testimony that the oath is a
form of initiation ritual that is "tantamount to hazing."
106 Nevertheless,
one simply cannot have citizens without non-citizens, or members of the state
without non-members; and since the non-citizens define the citizens, their very
status cannot be discriminatory within the meaning of section 15(1) of the Charter. As Arbour J. said in her separate
concurrence in Lavoie, at para.
110, "it is the essence of the concept of citizenship that it
distinguishes between citizens and non-citizens and treats them differently ...
Were the differences ... eliminated so that all rights available to citizens
were also immediately and equally available to non-citizens, the notion of
citizenship would become meaningless."
107 Thus,
in challenging the disparate impact of the oath on non-citizens as opposed to
birthright citizens, the Applicants in effect challenge citizenship itself. In
doing so, they impugn the unimpugnable. In Canada, the courts have been
directed to "accord the state a ... wide latitude in determining some of
the special rights of citizenship." Lavoie (SCC, per Arbour J.), at para. 116. One such right, or determining
factor, is that Parliament can determine the admission criteria such as an oath
without being subject to equality rights analysis on the grounds of the
challengers' citizenship itself.
108 In
enacting the oath, Parliament has sought "to enhance the meaning of
citizenship as a unifying bond for Canadians." Lavoie (SCC, per Bastarache J.), at para. 57. As with the freedom of
religion claim, the Applicants cannot use section 15(1) as a means of
undermining the equality and unity of others. To put it another way,
"[t]he mere recognition of the equality rights of one group cannot, in
itself, constitute a violation of the rights of another." Reference re Same-Sex Marriage, supra, at para. 46.
109 Accordingly,
there is no violation of either section 2(a) or 15(1) of the Charter in requiring new citizens to take an
oath to the Queen.
VI. Disposition
110 The
Application is dismissed.
111 The
citizenship oath to the Queen, as set out in the Act, infringes section 2(b) of
the Charter as a form of
compelled expression, but is saved by section 1 as being a reasonable limit on
the right of expression that is justifiable in a free and democratic society.
112 The
oath does not violate section 2(a) (freedom of religion) or section 15(1)
(equality rights) of the Charter.
113 The
parties have agreed not to seek costs against each other, and none are ordered.
E.M. MORGAN J.
No comments:
Post a Comment