The Supreme Court has denied leave to appeal in a case challenging the constitutionality of the Canadian citizenship oath, meaning that the decision of the Court of Appeal for Ontario which found the oath constitutional, McAteer v. Canada (Attorney General), stands and has become final. (I have summarized that decision over at my blog, Double Aspect.) The part of the oath which was being challenged in McAteer is the promise to « be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, » which some people who would like Canada to sever its ties with the monarchy find strongly objectionable.

Some monarchists will be relieved that what they saw as a challenge to their cherished form of government being dismissed. They shouldn’t be. The challenge to the oath was never about the monarchy, even though those who brought it were anti-monarchists ”• it was about the oath itself. It was about whether the state had sufficient reasons to coerce people to say things they did not want to say and, even more importantly in my view, to attempt to bind the would-be citizens’ conscience.

It is perfectly possible to be a monarchist and to answer this question with a firm ”œno.” As I have argued both in blog posts (for example when commenting on the Court of Appeal’s profoundly misguided decision) and in a paper recently published by the National Journal of Constitutional Law, the Oath is a violation of the freedom of conscience of those required to swear it. The government’s justifications for it are feeble at best, when not incoherent.

I will give you just one example. In court, the government argued, successfully, that those who challenge the oath misunderstand it. The « Queen » to whom the oath refers, it claimed, is not a physical person, as the challengers believed, but a symbol of freedom, equality, and the Rule of Law ”• in short, the values to which Canada and Canadians ought to be committed. Yet the government’s own guide for prospective citizens proclaims that

[i]n Canada, we profess our loyalty to a person who represents all Canadians and not to a document such as a constitution, a banner such as a flag, or a geopolitical entity such as a country.

I fail to see what it is that we gain nothing at all by forcing new Canadians to swear an oath which, under the government’s misdirection, they misunderstand ”• when they think at all about what it means instead of regarding it as a mere quaint ritual.

I will not go through the rest of the argument here. I will, though, address two counterclaims. One is the suggestion, made for example by co-blogger Philippe Lagassé, that

those who want to change the citizenship oath to the Queen should do what they always should have done: pressure Parliament to do it.

It is, of course, possible to say the exact same thing in response to any claim brought under the Canadian Charter of Rights and Freedoms. If prof. Lagassé thinks that we should get rid of the Charter, fair enough. But to the extent that he suggests that this specific claim, as opposed to some others, should have been made through the political process rather than litigation, I do not understand why that would be true.

And then, there are always those, such as Naomi Lakritz, who say that if you don’t like the way we do things here, you should get the hell out. It is easy to say this sort of thing about a rule that only imposes burdens on others, and not on you. But before you do that, ask yourself how far you are willing to take that logic. Would it be ok to make citizenship conditional on a promise always to vote for whatever party happens to be in power on the day you get it, and say that, well, that’s just a rule we have around here? The very idea of citizenship implies some conditions on getting it. But these conditions cannot amount to violations of constitutional rights which citizens hold: neither the right to vote for whom one pleases, nor the right to, say, racial equality ”• nor the freedom of conscience and the freedom of expression.

Leonid Sirota
Leonid Sirota teaches constitutional law at the Auckland University of Technology Law School. He is a graduate of the Faculty of Law, McGill University and the New York University School of Law. His main interests are Canadian constitutional law, other areas of public law and legal theory.

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