[1994] 2 F.C. 406
A-249-92
Charles C. Roach (Appellant)
v.
The Minister of State for Multiculturalism and Citizenship (Respondent)
Indexed as: Roach v. Canada (Minister of State for Multiculturalism and Citizenship) (C.A.)
Court of Appeal, MacGuigan, Linden and McDonald, JJ.A.—Toronto, November 4, 1993; Ottawa, January 20, 1994.
Citizenship and Immigration — Status in Canada — Citizens — Appeal from decisions under R. 419 striking out declaration as disclosing no reasonable cause of action — Appellant seeking Canadian citizenship but unwilling to swear allegiance to Queen because of republican views — Whether oath of allegiance in Citizenship Act unconstitutional — Nature of oath explained — Taking of oath not coercive burden infringing appellant’s Charter rights — Comparison between citizens by birth and non-citizens seeking citizenship through naturalization meaningless — Plain and obvious appellant having no chance of success at trial.
Constitutional law — Charter of Rights — Appellant alleging violation of Charter rights based on requirement in citizenship application to take oath or make affirmation of allegiance to Queen — Oath of allegiance binding so long as Constitution unamended — Not diminishing exercise of fundamental freedoms in Charter, s. 2(b), (c), (d) — Appellant having no chance of success at trial — Constitution ultimate criterion measuring laws, actions, discriminatory burdens.
This was an appeal from the judgment of Joyal J. sustaining the decision of Giles A.S.P. under Rule 419 striking out the appellant’s declaration on the ground that it disclosed no reasonable cause of action. The appellant, a Toronto lawyer born in Trinidad and Tobago who has been a permanent resident of Canada and British subject for more than 34 years, applied for Canadian citizenship but, because of his republican views, he was unwilling to swear allegiance to the Queen, which is required as part of the oath-taking ceremony. He alleged that being required to take an oath or make an affirmation of allegiance to the Queen was a violation of his Charter rights. For that reason, he sought a declaration that he was entitled to a grant of citizenship without having to take the oath or affirmation of citizenship in its present form. The Trial Judge held that the oath or affirmation was to the Queen as Head of State, that the requirement for such oath or affirmation could not be challenged on Charter grounds and that the appellant’s remedy lay in the political realm. The issue in this appeal was whether the oath of allegiance to the Queen contained in the Citizenship Act could be considered as a violation of the appellant’s constitutional rights under the Charter.
Held (Linden J.A. dissenting in part), the appeal should be dismissed.
Per MacGuigan J.A.: An oath is a solemn declaration before God or on something sacred that a statement is true; an affirmation fills the same role for those who do not wish to take an oath. The oath of allegiance to the Queen as Head of State for Canada is binding in the same way as the rest of the Constitution of Canada so long as the Constitution is unamended in that respect. Given that the appellant did not advocate revolutionary change, that is change contrary to the Constitution itself, his freedom of expression, freedom of peaceful assembly and freedom of association under section 2 of the Charter could not be limited by the oath of allegiance which in no way diminishes the exercise of those freedoms. It was “plain and obvious” and “beyond doubt” that the appellant would have no chance of success at trial in that regard. In arguing that the process to obtain citizenship requires from non-citizens an oath of allegiance to the Queen, which Canadian citizens by birth are not required to take, the appellant made a meaningless comparison of groups. Birth-citizens are not required to take an oath of allegiance because they need not submit to a process to obtain the citizenship they already have. Oaths or affirmations express a solemn intention to adhere to the symbolic keystone of the Canadian Constitution, thus pledging an acceptance of the whole of our Constitution and national life. The appellant could hardly complain that, in order to become a Canadian citizen, he had to express agreement with the fundamental structure of our country. The Constitution is itself the ultimate criterion by which all laws, actions and discriminatory burdens are measured.
Per Linden J.A. (dissenting in part): One of the main reasons behind the high threshold for striking out a statement of claim (or declaration) as disclosing no reasonable cause of action is to prevent a court from embarking on a resolution of factual issues raised in a case in the absence of any evidence. It is only in the most obvious cases that the opportunity to present evidence and full legal argument should be denied a litigant. With respect to both freedom of conscience and freedom of religion, the appellant had to show that the burden imposed on him by the oath was more than trivial or insubstantial. The appellant has not raised a plausible argument about the imposition of a coercive burden on his conscientiously-held views which bridle at swearing an oath to anyone but a Supreme Being. His real objection was not to the method of oath making but to its content. His claim under paragraph 2(a) of the Charter regarding freedom of conscience should therefore be struck out. Similarly, his allegation that the oath of citizenship restricts his freedom of religion since the Queen is the “Head of the Anglican Church” must be struck out. The oath requires no statement of allegiance to Anglicanism nor to the Queen in relation to her role in the Church of England. The appellant’s claim with respect to effects on his freedom of religion did not disclose a burden which is more than trivial or insubstantial. The relationship between an oath of allegiance to the Queen in her capacity of Head of State and the appellant’s religious practice and beliefs was too remote. Although freedom of thought, belief and opinion in paragraph 2(b) of the Charter is distinct from freedom of conscience, much of the same analysis could be applied to these freedoms: there must be some coercive burden flowing out of the impugned law. Given that, nowadays, freedom to criticize the monarchy and other Canadian institutions is guaranteed by the Charter and that, by taking this oath, the appellant might feel inhibited to some extent in his anti-monarchy activities, his claim with respect to freedom of thought should not be struck out. While there was no evidence to suggest that the purpose of the oath or affirmation of citizenship is to curtail freedom of expression, strict adherence to the oath or affirmation of loyalty to the Queen might be felt by the appellant to prevent him from expressing his republicanism, even though it might not in law actually do so. The appellant’s claim that the oath or affirmation abridges his freedom of expression as guaranteed by paragraph 2(b) of the Charter should, therefore, not be struck out. Freedom of peaceful assembly was geared toward protecting the physical gathering together of people and was not intended to protect the objects of an assembly that is organized to foster freedom of thought, belief, opinion or expression, or freedom of association, for that would be protected independently. The portion of the appellant’s declaration relating to freedom of peaceful assembly should, therefore, be struck out. With respect to freedom of association under paragraph 2(d) of the Charter, it could not be said at this stage that the appellant, given the opportunity to adduce evidence and arguments, could not succeed on that point and, therefore, this portion of the declaration should not be struck out. The standard for cruel and unusual treatment under section 12 of the Charter is whether the treatment outrages standards of decency. The consequences to the appellant of not swearing the oath or making the affirmation could not be said to outrage standards of decency and therefore, this portion of the declaration should be struck out.
The appellant’s claim that the oath or affirmation is contrary to subsection 15(1) of the Charter could be justified by the fact that a permanent resident desiring to become a naturalized citizen is required to take the oath while people who are Canadian citizens by birth are not. Non-citizens would be denied equality under the law in that the Citizenship Act appears to draw a distinction between two groups, namely people who attain citizenship automatically by birth and people who must apply for citizenship. In addition to the differential treatment, the appellant would have to demonstrate at trial that any inequality under the law is discriminatory. The appellant’s claim under section 27 of the Charter should also be struck out as that provision is merely an aid to interpretation and not a substantial provision that can be violated.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2, 12, 15(1), 27.
Citizenship Act, R.S.C., 1985, c. C-29, ss. 2, 5 (as am. by R.S.C., 1985 (3rd Supp.), c. 44, s. 1), 10, 12(3), 24.
Citizenship Regulations, C.R.C., c. 400.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 9, 10, 11, 12, 13, 14, 15, 16, 17, 101.
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 41(a), 52.
Criminal Code, R.S.C., 1985, c. C-46, s. 131 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 17).
Federal Court Rules, C.R.C., c. 663, R. 419.
CASES JUDICIALLY CONSIDERED
APPLIED:
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 142; (1989), 56 D.L.R. (4th) 1; [1989], 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255.
CONSIDERED:
R. v. Swain, [1991] 1 S.C.R. 933; (1991), 75 O.R. (2d) 388; 71 D.L.R. (4th) 551; 63 C.C.C. (3d) 481; 5 C.R. (4th) 253; 3 C.R.R. (2d) 1; 125 N.R. 1; 47 O.A.C. 81; Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735; (1980), 115 D.L.R. (3d) 1; 33 N.R. 304; Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12 Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; Benner v. Canada (Secretary of State), [1994] 1 F.C. 250; (1993), 155 N.R. 321 (C.A.); R. v. Bannerman (1966), 55 W.W.R. 257; 48 C.R. 110 (Man. C.A.); R. v. Morgentaler, [1988] 1 S.C.R. 30; (1988), 44 D.L.R. (4th) 385; 37 C.C.C. (3d) 449; 62 C.R. (3d) 1; 31 C.R.R. 1; 82 N.R. 1; 26 O.A.C. 1; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; (1986), 35 D.L.R. (4th) 1; 30 C.C.C. (3d) 385; 87 CLLC 14,001; 55 C.R. (3d) 193; 28 C.R.R. 1; 71 N.R. 161; 19 O.A.C. 239; Schachtschneider v. Canada, [1994] 1 F.C. 40; (1993), 154 N.R. 321 (C.A.); United States v. Schwimmer, 279 U.S. 644 (1929); Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d) 417; 94 N.R. 167; West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943); Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; (1987), 78 A.R. 1; 38 D.L.R. (4th) 161; [1987] 3 W.W.R. 577; 51 Alta. L.R. (2d) 97; 87 CLLC 14,021; [1987] D.L.Q. 225; 74 N.R. 99.
REFERRED TO:
Omychund v. Barker (1744), 26 E.R. 15; R. v. Khan, [1990] 2 S.C.R. 531; (1990), 59 C.C.C. (3d) 92; 79 C.R. (3d) 1; 113 N.R. 53; 41 O.A.C. 353; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295; (1985), 60 A.R. 161; 18 D.L.R. (4th) 321; [1985] 3 W.W.R. 481; 37 Alta. L.R. (2d) 97; 18 C.C.C. (3d) 385; 85 CLLC 14,023; 13 C.R.R. 64; 58 N.R. 81; Schneiderman v. United States, 320 U.S. 118 (1943); R. v. Keegstra, [1990] 3 S.C.R. 697; (1990), 114 A.R. 81; [1991] 2 W.W.R. 1; 77 Alta. L.R. (2d) 193; 61 C.C.C. (3d) 1; 3 C.P.R. (2d) 193; 1 C.R. (4th) 129; 117 N.R. 284; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045; (1987), 40 D.L.R. (4th) 435; [1987] 5 W.W.R. 1; 15 B.C.L.R. (2d) 273; 34 C.C.C. (3d) 97; 58 C.R. (3d) 193; 31 C.R.R. 193; 75 N.R. 321; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161; R. v. Turpin, [1989] 1 S.C.R. 1296; (1989), 48 C.C.C. (3d) 8; 69 C.R. (3d) 97; 39 C.R.R. 306; 96 N.R. 115; 34 O.A.C. 115; Symes v. Canada, [1993] 4 S.C.R. 695; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; (1989), 59 D.L.R. (4th) 321; [1989] 4 W.W.R. 193; 58 Man. R. (2d) 161; 26 C.C.E.L. 1; 10 C.H.R.R. D/6183; 89 CLLC 17,012; 45 C.R.R. 115; 94 N.R. 373; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252; (1989), 59 D.L.R. (4th) 352; [1989] 4 W.W.R. 39; 58 Man. R. (2d) 1; 25 C.C.E.L. 1; 10 C.H.R.R. D/6205; 89 CLLC 17,011; 47 C.R.R. 274; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; (1990), 111 N.R. 161; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; (1991), 82 D.L.R. (4th) 321; 37 C.C.E.L. 195; 91 CLLC 14,026; 125 N.R. 241; R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577; (1991), 7 C.R. (4th) 117; 128 N.R. 81; Schachter v. Canada, [1992] 2 S.C.R. 679; (1992), 93 D.L.R. (4th) 1; 92 CLLC 14,036; 10 C.R.R. (2d) 1; 139 N.R. 1; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; (1993), 107 D.L.R. (4th) 342; 158 N.R. 1; R. v. Seaboyer (1987), 61 O.R. (2d) 290 (C.A.); R. v. Chief, [1990] N.W.T.R. 55; [1990] 1 W.W.R. 193; (1989), 39 B.C.L.R. (2d) 358; 51 C.C.C. (3d) 265; [1990] 1 C.N.L.R. 92; 74 C.R. (3d) 57; 44 C.R.R. 122 (Y.T.C.A.).
AUTHORS CITED
Abella, Irving M. A Coat of Many Colours: Two Centuries of Jewish Life in Canada. Toronto: Lester & Orpen Dennys, 1990.
Canada. Prime Minister. The Constitution and the People of Canada. Ottawa: Government of Canada, 1969.
Gochnauer, M. “Oaths, Witnesses and Modern Law” (1991), 4 Can. J. Law & Jur. 67.
Levinson, Sanford. “Constituting Communities Through Words That Bind: Reflections on Loyalty Oaths” (1986), 84 Mich. L. Rev. 1440.
MacKinnon, Frank. The Crown in Canada. Calgary: Glenbow-Alberta Institute, 1976.
Morton, Frederic. The Rothschilds: A Family Portrait. New York: Atheneum, 1962.
APPEAL from Trial Division decision ([1992] 2 F.C. 173; (1992), 53 F.T.R. 241 (T.D.)) sustaining decision of Associate Senior Prothonotary striking out the appellant’s declaration under Rule 419 on the ground that it disclosed no reasonable cause of action. Appeal dismissed.
COUNSEL:
Charles C. Roach on his own behalf.
Bonnie J. Boucher for respondent.
SOLICITORS:
Charles C. Roach, Toronto, on his own behalf.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
MacGuigan J.A.: In my view, Joyal J. as Trial Judge [[1992] 2 F.C. 173] and, before him, Giles A.S.P. were right in striking out the whole of the appellant’s declaration under Rule 419 [Federal Court Rules, C.R.C., c. 663] on the ground that it disclosed no reasonable cause of action.
I have had the opportunity of reading the reasons for judgment of my brother Linden and I am in agreement with his explanation of the legislation, of the test for disclosing no reasonable cause of action, and of the nature of an oath, and with his striking out the appellant’s claim with respect both to cruel and unusual treatment or punishment (section 12 of the Charter) [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] and to the multicultural heritage of Canadians (section 27). I am also in agreement with his reasons for striking out the appellant’s declaration in relation to the freedom of conscience and religion (paragraph 2(b)), except that in my opinion the oath of allegiance could not be even a trivial or insubstantial interference with the appellant’s exercise of those freedoms. I am not in agreement with the rest of my colleague’s reasons for decision or with his disposition of the case.
An oath is a solemn declaration before God or on something sacred that a statement is true; an affirmation fills the same role for those who do not wish to take an oath. The oath of allegiance required under the Citizenship Act [R.S.C., 1985, c. C-29] is to the effect that the oath-taker (or affirmer) “will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors.” Although there is an immemorial common law tradition behind the role of the monarch as Head of State, that is now subsumed by section 9 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]], which provides with respect to executive power that “The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen,” and by section 17, which provides with respect to legislative power that “There shall be One Parliament for Canada, consisting of the Queen, or Upper House styled the Senate, and the House of Commons.” Since Canada is a constitutional and not an absolute monarchy, the Queen does not rule personally, but rather may be said to “reign” by constitutional convention, through the advice of ministers drawn from the party with an actual or presumed majority in the House of Commons.[1]
If the provisions of the Constitution Act, 1867 and any others dependent on them (such as sections 10-16) were repealed or amended so as, for example, to substitute some differently designated person for the monarch, it cannot be doubted that the monarch would no longer be the Head of State for Canada, provided of course that the constitutional amendment were properly made under Part V of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], since “the office of the Queen” is specifically made amendable by paragraph 41(a) of the Constitution Act, 1982 “by resolutions of the Senate and House of Commons and of the legislative assembly of each province.”
Against this constitutional background, the oath of allegiance has to be understood to be binding in the same way as the rest of the Constitution of Canada not forever, nor in some inherent way, but only so long as the Constitution is unamended in that respect.
It is a matter of common sense and common consent that it is neither unconstitutional, nor illegal, nor inappropriate to advocate the amendment of the Constitution. The proponents of the Meech Lake and Charlottetown Accords did not walk with trepidation in their advocacy of those amendments at least not on that score. Paragraph 41(a) of the Constitution Act, 1982 itself “dares” constitutionally to legitimize the abolition of the monarchy. All that is required for constitutional legitimacy is that the constitutionally provided amending formula be followed.
Given that the appellant does not advocate revolutionary change (i.e., change contrary to the Constitution itself),[2] his freedom of expression (paragraph 2(b)), freedom of peaceful assembly (paragraph 2(c)) and freedom of association (paragraph 2(d)) cannot conceivably be limited by the oath of allegiance, since the taking of the oath of allegiance in no way diminishes the exercise of those freedoms. The fact that the oath “personalizes” one particular constitutional provision has no constitutional relevance, since that personalization is derived from the Constitution itself. As it was put by Professor Frank MacKinnon, The Crown in Canada, Glenbow-Alberta Institute, 1976, at page 69, “Elizabeth II is the personal expression of the Crown of Canada”. Even thus personalized, that part of the Constitution relating to the Queen is amendable, and so its amendment may be freely advocated, consistently with the oath of allegiance, either by expression, by peaceful assembly or by association.
This is sufficient to dispose of the appellant’s challenge to the oath of allegiance on the basis of section 2 of the Charter. No facts would be pleaded that would prove the appellant’s allegation. It is “plain and obvious” and “beyond doubt” that the appellant has no chance of success at trial in this regard.
The appellant also claims that the oath or affirmation is contrary to subsection 15(1) of the Charter, which reads as follows:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The authorities show that in addition to differential treatment, a complainant must establish that any such denial of equality is discriminatory: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 142; R. v. Swain [1991] 1 S.C.R. 933.
Andrews is particularly helpful for the case at bar in this respect since it also dealt with the position of non-citizens. In Andrews, where a law society denied admission to the practice of law to non-citizens, discrimination was found to exist for two reasons: (1) a burden was imposed on non-citizen applicants for legal practice in the form of a three-year delay, the period of residence required for citizenship; (2) this burden was imposed in relation to non-citizenship, which was held to be an analogous category to those specifically enumerated in subsection 15(1).
In the case at bar it is not precisely citizenship which is in question, but rather the process required for citizenship. The appellant’s objection is not even that a process is required for citizenship, but only that the process requires an oath of allegiance to the Queen, which Canadian citizens by birth are not required to take.
This is a meaningless comparison of groups. Birth-citizens are not, of course, required to take an oath of allegiance because they need not submit to a process to obtain the citizenship they already have. Their exemption, as it were, is not one from the oath itself, but from the citizenship process.
Moreover, the burden imposed on the appellant is only the minuscule one of the time and the effort involved in the uttering of the twenty-four words of allegiance. To hold this to be a coercive burden that would trigger the invocation of subsection 15(1) would in my opinion be to trivialize the Charter.
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.
What our country may come to be, on the other hand, as I have suggested in relation to section 2 of the Charter, is for millions of Canadian citizens to work out over time, a process in which the appellant can himself share, if he only allows himself to do so. He cannot use his dream of a republican Constitution as a legal basis for denying the legitimacy of the present form of government. The present Constitution could indeed evolve into his ideal republic, provided that the intervening political process were peacefully constitutional. If the appellant, idiosyncratically, were to feel that thus pledging his allegiance to the existing Constitution were a “burden”, this would not be a burden of which the law could take any cognizance. The Constitution, as it exists at any given time, cannot be unconstitutional, nor can it be constitutionally burdensome. It is itself the ultimate criterion by which all laws, actions and discriminatory burdens are measured.
Any remaining aspects of the appellant’s claim under subsection 15(1) have already been disposed of in my consideration of section 2.
The Court raised with the parties the question of its jurisdiction under section 101 of the Constitution Act, 1867, to issue a declaration in such a case, and allowed them additional weeks after the hearing to submit argument on this question. I did not find these arguments, as presented, helpful, and, as the appellant’s declaration is being struck out in any event, I do not find it necessary to resolve this issue as well.
The appeal must therefore be dismissed with costs.
McDonald J.A.: I agree.
* * *
The following are the reasons for judgment rendered in Englisy by
Linden J.A. (dissenting in part): The issue on this appeal is whether the oath of allegiance to the Queen contained in the Citizenship Act, R.S.C., 1985, c. C-29, might, in the circumstances of this case, be found to be unconstitutional. More particularly, the appellant, a republican, claims that being required to take an oath of allegiance to the Queen is a violation of his constitutional rights guaranteed by several different sections of the Canadian Charter of Rights and Freedoms. His declaration was struck out pursuant to Rule 419 [Federal Court Rules, C.R.C., c. 663] as disclosing “no reasonable cause of action” by the Associate Senior Prothonotary, which decision was affirmed by the Trial Division. He now appeals to this Court.
The appellant, a member of the Ontario Bar, who was born in Trinidad and Tobago, has been a permanent resident of Canada as a British subject for more than 34 years. The appellant alleges that, over the years, his rights as a British subject and permanent resident have been eroded such that he can no longer vote in elections, stand for public office, or be employed in the Public Service. The appellant applied for and is eligible for Canadian citizenship. Prior to commencing this litigation, the appellant sought from various Government Ministers an exemption from the oath of citizenship in its present form. He was unsuccessful in his requests. The appellant is willing to take an oath to be a loyal Canadian citizen, to obey the laws of Canada and to fulfil his citizenship duties. However, because of his republican views, he is not willing to swear allegiance to the Queen, something which is currently required as part of the oath-taking ceremony.
The appellant commenced an action for declaratory relief against the Crown by filing a declaration, seeking a declaration that he is entitled to a grant of citizenship without having to take the oath or affirmation of citizenship in its present form. In the alternative, the appellant sought a declaration that he is entitled to an exemption from being required to take the citizenship oath or affirmation in its present form. In particular, the appellant alleged that being required to take an oath or make an affirmation of allegiance to the Queen is a violation of his Charter rights.
THE CITIZENSHIP ACT PROVISIONS
The eligibility requirements for Canadian citizenship are set out in section 5 [as am. by R.S.C., 1985 (3rd Supp.), c. 44, s. 1] of the Citizenship Act. When those requirements are met, the Minister must issue a citizenship certificate. According to subsection 12(3), however, the certificate does not take effect until the person to whom it has been issued complies with the requirements of the Act and the Citizenship Regulations, C.R.C., c. 400, respecting the oath of citizenship. An oath or affirmation of citizenship is the last step in attaining Canadian citizenship. Section 24 of the Act states:
24. Where a person is required under this Act to take the oath of citizenship, the person shall swear or affirm in the form set out in the schedule and in accordance with the regulations.
The Schedule to the Citizenship Act contains the oath or affirmation itself, in the following form:
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 fulfil my duties as a Canadian citizen.
The Minister is empowered by paragraph 5(3)(b) of the Citizenship Act to waive the requirement that a person take an oath of citizenship in the case of any person under a disability. It reads as follows:
5. …
(3) The Minister may, in his discretion, waive on compassionate grounds,
…
(b) in the case of any person under a disability … the requirement that the person take the oath of citizenship.
Disability is defined in section 2 of the Citizenship Act as the incapacity of a minor or of a person who is mentally incompetent. The appellant, consequently, is not a person under a disability within the meaning of the Citizenship Act, so that the Minister is not authorized to waive the requirement of the citizenship oath for him. Were the Minister or the Citizenship Court more broadly authorized by Parliament to waive the requirement of the citizenship oath in appropriate cases, this litigation might have been avoided. However, as the legislation stands, the Court must consider the appellant’s contention that the oath of citizenship is unconstitutional, at least in relation to his situation.
JUDGMENTS BELOW
The motion to strike was heard before the Associate Senior Prothonotary who granted the motion “without prejudice to the plaintiff’s right to file a claim or declaration outlining a complete cause of action devoid of irrelevant material within the jurisdiction of the Court” (see page 22, Case). Costs of the motion were awarded against the appellant in any event of the cause.
The appellant appealed to the Trial Division, where his appeal was dismissed. Mr. Justice Joyal stated that, in Canada, the Queen is equivalent to “State” or “Crown” and that the oath or affirmation of citizenship requires an oath or affirmation to this country’s Head of State. He held that it was not constitutionally significant that our Head of State is a monarch and an Anglican. Further, the appellant was free to make an affirmation if to make an oath was contrary to his conscience.
Mr. Justice Joyal concluded as follows [at page 179]:
The appellant must be aware that Canada is a secular state and although many of its laws reflect religious tradition, culture and values, they are nonetheless secular or positivistic in nature. To grant exemptions of the kind claimed by the appellant would be to permit the imposition of private beliefs, religious or otherwise, on laws of general application, a condition which would be in contradiction with the principles of a secular state.
Mr. Justice Joyal stated that, in his view, the oath or affirmation could not be challenged on Charter grounds, and indicated that the appellant’s remedy lay in the political realm. He dismissed the appeal with costs.
THE TEST FOR DISCLOSING NO REASONABLE CAUSE OF ACTION
The governing test for dismissing an action or striking out a claim as disclosing no reasonable cause of action is a difficult one to meet. Our Courts are rightly reluctant to snuff out potentially meritorious actions prematurely. We try to err on the side of giving each person a day in court, striking out claims only in the plainest and most obvious cases. As Mr. Justice Estey wrote for the Supreme Court of Canada in Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735, at page 740:
On a motion such as this a court should, of course, dismiss the action or strike out any claim made by the plaintiff only in plain and obvious cases and where the court is satisfied that “the case is beyond doubt”. [Emphasis added.]
This standard was adopted by the Supreme Court of Canada in the context of a Charter claim in Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441. Madam Justice Wilson, in concurring reasons, stated, at page 486:
The law then would appear to be clear. The facts pleaded are to be taken as proved. When so taken, the question is do they disclose a reasonable cause of action, i.e. a cause of action “with some chance of success”. [Emphasis added.]
The majority in Operation Dismantle, supra, led by Chief Justice Dickson, cited Inuit Tapirisat, supra, and then quoted the concurring reasons of Madam Justice Wilson with approval.
In Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Madam Justice Wilson did an extensive survey of the law on striking out claims for disclosing no reasonable cause of action. She concluded, writing for the Court, at page 980:
[A]ssuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat”. [Emphasis added.]
Consequently, if it is “plain and obvious” or “beyond doubt” that the appellant cannot succeed, the declaration should be struck out, but if there is “some chance of success” or “a chance that the plaintiff might succeed”, the action should be allowed to proceed to trial.
A document such as a statement of claim or, as in this case, a declaration does not contain the evidence required to prove the facts that the plaintiff alleges. The facts alleged may or may not be proven at the trial—that is, it may or may not be shown that the appellant holds the views he alleges he holds and it may or may not be shown that the potential negative consequences will actually transpire. One of the driving reasons behind the high threshold for striking out a statement of claim for disclosing no reasonable cause of action is to prevent a court from embarking on a resolution of factual issues raised in a case in the absence of any evidence. The danger of such a course is obvious: there is an inadequate record upon which to make the factual determinations necessary to the disposition of a case. Further, a statement of claim contains only a skeleton of a legal argument, which will be fleshed out in submissions before the trial Court. It is only in the most obvious of cases, therefore, that the opportunity to present evidence and full legal argument should be denied a litigant.
In applying this standard to the appellant’s declaration, it should be borne in mind that these reasons are not in any way relevant to whether the appellant’s action will or should succeed at trial; they are limited only to a consideration of whether he might succeed at trial. Consequently, these reasons must not be read as expressing any views, one way or the other, on the ultimate merits of any of the appellant’s allegations.
THE APPELLANT’S CLAIM
The appellant’s declaration alleges that the oath of citizenship is contrary to several sections of the Charter, including paragraphs 2(a), 2(b), 2(c), 2(d), section 12, and subsection 15(1). The appellant also claims that these Charter rights should be interpreted in accordance with section 27, which encourages the preservation and enhancement of the multicultural heritage of Canadians. I will deal with each of the appellant’s arguments in turn.
It should be noted that the appellant has not distinguished in his declaration between taking an oath and making an affirmation. The religious character of taking an oath is not an issue for the appellant and this is rightly so given the availability of the affirmation. In other words, the form of the oath is not in issue, only its content. The appellant is objecting to making any commitment of loyalty or allegiance to Her Majesty the Queen that is binding on his conscience, whether that commitment be evinced by way of oath or affirmation. Therefore, the word “oath” as used in the declaration should be read as referring to both an oath and an affirmation.
THE NATURE OF AN OATH
Through an oath or affirmation, a person attests that he or she is bound in conscience to perform an act or to hold to an ideal faithfully and truly. An oath “relies on the individual’s inner sense of personal worth and what is right”. It engages the “will and conscience of the taker of the oath.” (See Gochnauer, Oaths, Witnesses and Modern Law (1991), 4 Can. J. Law & Jur. 67, at pages 71-73.) In the past it invariably invoked the aid of the Supreme Being as “rewarder of truth” and as “avenger of falsehood.” (See Omychund v. Barker (1744), 26 E.R. 15, at page 32).
Nowadays, however, simple affirmations are generally accepted. Being allowed to affirm instead of swearing an oath was a major human rights achievement for our society. Minority religious groups in the past were denied rights because of their inability or unwillingness to swear the oath. For example, Professor Irving Abella in his fascinating book, A Coat of Many Colours, (1990), at page 20, tells how Ezekiel Hart, a person of the Jewish faith, ran and won an election as member of the Legislative Assembly of Quebec for Three Rivers in 1807. However, because he took the oath on the Old Testament with his head covered, rather than on the New Testament, he was barred from taking his seat and was replaced by the runner-up in the election. Hart ran and was elected again in 1808 and, though this time he indicated a willingness to swear the oath on the New Testament, he was again denied his seat on the basis that he would not be bound by such an oath and that he would “thereby profane the Christian religion”. It was not until 1832 that Jewish people won the right to hold elected office in Quebec. The situation was worse in England, where it took 26 more years for Jews to be able to hold elected office. A similar sorry saga had to be enacted by Lionel de Rothschild, who had to be elected six times between 1847 and 1858 in the city of London before he was finally allowed to take his seat in the House of Commons, after swearing the oath on the Old Testament according to the Jewish tradition with his head covered. (See Morton, The Rothschilds: A Family Portrait, (1962), at page 163.) This problem, fortunately, no longer shames us.
We require oaths or affirmations as a method of binding the conscience in various circumstances such as testifying in Court, being admitted as a member of the Bar, as a Member of Parliament, on entering the Public Service, and, of course, there is also the oath of citizenship which is at issue in this appeal. These are all circumstances in which we seek to ensure certain paramount goals such as fidelity to the truth or loyalty to the country. As I stated in Benner v. Canada (Secretary of State), [1994] 1 F.C. 250 (C.A.), at page 281:
Swearing an oath as a prerequisite to citizenship is a common practice followed in many countries. It is, in essence, a simple inquiry as to whether an individual is committed to the country and shares the basic principles or ideals upon which the country was founded.
This view was dramatically proclaimed in the American context, by Justice Felix Frankfurter (see, Levinson, Constituting Communities Through Words That Bind: Reflections on Loyalty Oaths (1986), 84 Mich. L. Rev. 1440, at page 1441):
American citizenship implies entering upon a fellowship which binds people together by devotion to certain feelings and ideas and ideals summarized as a requirement that they be attached to the principles of the Constitution.
There is some jurisprudence on the relationship between oaths and the conscience of the oath-taker in the context of swearing to tell the truth in court proceedings. For example, in R. v. Bannerman (1966), 55 W.W.R. 257 (Man. C.A.), at page 284, Dickson J. (as he then was) stated that the “object of the law in requiring an oath is to get at the truth relative to matters in dispute by getting a hold on the conscience of the witness.” This fundamental relationship between the oath and the swearer’s conscience has been reiterated in several Supreme Court decisions (see, for example, R. v. Khan, [1990] 2 S.C.R. 531, and R. v. B. (K.G.), [1993] 1 S.C.R. 740).
Criminal sanctions may even follow when persons who swear to tell the truth perjure themselves (see Criminal Code, R.S.C., 1985, c. C-46, section 131 [as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 17]). In addition, a person’s citizenship may be forfeited if someone obtains it “by false representation or fraud or knowingly concealing material circumstances” (see section 10, Citizenship Act, supra).
It can be seen that an oath or affirmation is a solemn matter whose function in our society is to secure important goals such as truth, justice, good government and national security. As Gochnauer, supra, at page 99, has explained:
As far back as we can trace the oath, it performs the social function of publicly committing the speaker to something in the strongest possible way. In the extremity of the undertaking it is equalled only by vows.
The appellant’s declaration alleges that he adheres to this view of the oath. He states in paragraph 16: “The appellant believes that a public oath is the most solemn rite and that its terms must be faithfully observed.”
An oath or affirmation, therefore, is not a matter to be taken lightly; when, for reasons of conscience, a person feels he or she cannot swear a certain oath or make a certain affirmation, one must carefully consider that position, for it shows that that person takes the oath seriously, something we wish to support.
THE FUNDAMENTAL FREEDOMS
The appellant contends that his fundamental freedoms will be violated if he is made to take the oath of loyalty to the Queen. Section 2 of the Charter protects what are referred to as fundamental freedoms:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
The appellant contends that each of these provisions are applicable in his case. I shall deal with them in turn.
(a) Freedom of conscience and religion
The appellant’s first claim is that the citizenship oath in its present form violates his freedom of conscience under paragraph 2(a) since it is against his “conscience to make oaths to all but the Supreme Being and to principles such as truth, freedom, equality, justice and the rule of law.” The appellant also claims that the oath or affirmation in its present form violates his freedom of religion under paragraph 2(a) inasmuch as the Queen is the “Head of the Anglican Church and the [appellant] is not of the Anglican faith.”
There is little authoritative jurisprudence on freedom of conscience under paragraph 2(a) of the Charter. However, the concurring reasons of Madam Justice Wilson in R. v. Morgentaler, [1988] 1 S.C.R. 30, at page 179, are instructive in their approach to freedom of conscience. She stated:
It seems to me, therefore, that in a free and democratic society “freedom of conscience and religion” should be broadly construed to extend to conscientiously-held beliefs, whether grounded in religion or in a secular morality. Indeed, as a matter of statutory interpretation, “conscience” and “religion” should not be treated as tautologous if capable of independent, although related, meaning.
It seems, therefore, that freedom of conscience is broader than freedom of religion. The latter relates more to religious views derived from established religious institutions, whereas the former is aimed at protecting views based on strongly held moral ideas of right and wrong, not necessarily founded on any organized religious principles. These are serious matters of conscience. Consequently the appellant is not limited to challenging the oath or affirmation on the basis of a belief grounded in religion in order to rely on freedom of conscience under paragraph 2(a) of the Charter. For example, a secular conscientious objection to service in the military might well fall within the ambit of freedom of conscience, though not religion. However, as Madam Justice Wilson indicated, “conscience” and “religion” have related meanings in that they both describe the location of profound moral and ethical beliefs, as distinguished from political or other beliefs which are protected by paragraph 2(b).
In my view, with respect to both freedom of conscience and freedom of religion, the appellant will have to show that the burden imposed on him by the oath is more than trivial or insubstantial. As Dickson C.J. wrote in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at page 759:
The purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being. These beliefs, in turn, govern one’s conduct and practices. The Constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably be threatened. For a state-imposed cost or burden to be proscribed by s. 2(a) it must be capable of interfering with religious belief or practice. In short, legislative or administrative action which increases the cost of practising or otherwise manifesting religious beliefs is not prohibited if the burden is trivial or insubstantial.
The impact of a law or government action on freedom of conscience or religion has been called a “coercive burden” in cases such as Edwards Books, supra. In Edwards Books, supra, Chief Justice Dickson was discussing the state-imposed cost of Sunday-closing legislation on retailers who for religious reasons observe a sabbath or day of rest other than Sunday.
A similar analysis should be employed in assessing any interference with freedom of conscience. This would require a claimant to show that his or her conscientiously held moral views might reasonably be threatened by the legislation in question, and that the coercive burden on his or her conscience would not be trivial or insubstantial.
In my view, the appellant has not raised a plausible argument about the imposition of a coercive burden on his conscientiously held views which bridle at swearing an oath to anyone but a Supreme Being. Based on the facts as disclosed in the declaration and the statutory law, the appellant is not required to swear an oath to the Queen as he alleges, nor to anyone but a Supreme Being, if he chooses to swear. Moreover, he may decide to affirm rather than to swear, if that is objectionable to him. His real objection is not to the method of oath making, but to its content. His claim under paragraph 2(a) of the Charter regarding freedom of conscience should, therefore, be struck out. (This is not to say that the appellant might not have made a valid argument regarding freedom of conscience had he articulated a conscientious objection to the content of the oath or affirmation.)
Similarly, the appellant’s allegation that the oath of citizenship restricts his freedom of religion since the Queen is the “Head of the Anglican Church” must be struck out. As Mr. Justice Joyal found, Parliament’s purpose in framing the oath or affirmation was to require a statement of loyalty to Canada’s head of state and its institutions, not to interfere with religious freedom. There is no mention in our Constitution nor in this oath of the Queen in her capacity as Head of the Church of England. The oath requires no statement of allegiance to Anglicanism nor to the Queen in relation to her role in the Church of England. Indeed, the Anglican Church of Canada is governed, not by the Queen, but by an independent Synod established in Canada. Therefore, the purpose of the oath or affirmation is not to interfere with the guarantee of freedom of religion, because its purpose was not in any way to insist upon loyalty to the Anglican Church.
Nor is the oath restrictive of the appellant’s freedom of religion in its effects. The Supreme Court decided in R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295, and Edwards Books, supra, that not only the purpose, but also the effects of legislation are relevant to determining its constitutionality. As Dickson C. J. stated in Edwards Books, supra [at page 752]:
Even if a law has a valid purpose, it is still open to a litigant to argue that it interferes by its effects with a right or freedom guaranteed by the Charter.
I summarized the test under paragraph 2(a) with respect to effects on freedom of religion in my reasons in Schachtschneider v. Canada, [1994] 1 F.C. 40 (C.A.), at pages 65-66:
Yet while any law that involves a so-called coercive burden on an individual’s practice of their religion—which really means no more than that the law has some influence on their religious practice—may potentially fall within the ambit of paragraph 2(a), it is clear that not all such laws contravene that paragraph. A trivial or insubstantial interference with religion is insufficient to violate paragraph 2(a). There must be a substantial enough interference that one’s religious practice might reasonably or actually be threatened.
Edwards Books, supra, made it clear that the same can be said of a reasonable or actual threat to a religious belief as well as to a religious practice (at page 759).
The appellant’s claim with respect to effects on his freedom of religion does not disclose a burden which is more than trivial or insubstantial. The relationship between an oath of allegiance to the Queen in her capacity of Head of State and the appellant’s religious practice and beliefs is too remote. Basically, the appellant is objecting to the religion of the Queen, which cannot affect him in any way. Ironically, rather than the oath interfering with his freedom of religion, it might be said that the appellant wants to limit the religious freedom of the monarch. This view reflects the conclusion of Mr. Justice Joyal who found that the appellant’s arguments regarding the Queen as head of the Anglican Church involved a “dialectic which is bereft of any legal or constitutional content” (at page 179). The appellant’s allegation that the oath violates his freedom of religion must, therefore, be struck out.
(b) Freedom of thought, belief, opinion and expression
The appellant claims that swearing an oath or making an affirmation of loyalty to the Queen abridges his freedom of thought, belief, opinion and expression under paragraph 2(b) of the Charter. There is a discrete body of jurisprudence on freedom of expression, and therefore I will treat that issue separately later.
Freedom of thought, belief and opinion is distinct from freedom of conscience. Freedom of thought, belief and opinion encompasses many ideas and principles that are not matters of conscience, nor of right or wrong; what is involved here are political, social, economic or cultural ideas. We are dealing here in the realm of reason, not of faith, nor of morality. It is obvious that there are no sharp dividing lines here; these matters may blur into one another, making them difficult to differentiate.
It appears to me, however, that much the same analysis could be applied to these freedoms as to freedom of conscience and freedom of religion. There must be some coercive burden flowing out of the impugned law. The appellant claims that, if he swore allegiance to the Queen, he would feel honour-bound to refrain from thinking and expressing beliefs and opinions about the abolition of the monarchy; hence, he argues, a coercive burden would be placed on the exercise of his freedom of thought, belief and opinion.
The interpretation of most people would not so restrict the freedom of one who swore allegiance to the Queen. The views expressed by my brother MacGuigan as to the current meaning of the oath of allegiance make sense. It may well be the correct interpretation. Obviously, the newly-elected Bloc Québécois Members of Parliament had no difficulty swearing the oath of allegiance to the Queen, even though they are committed to working democratically to achieve a monarch-less independent state.
But it is not, with respect, plainly and obviously the meaning of the oath at this time. It must be recalled that there was a time when criticism of the monarchy was viewed as treason. Happily, that is no longer the case. Nowadays, freedom to criticize the monarchy and other Canadian institutions is obviously guaranteed by the Charter. It is unlikely that criminal proceedings for perjury would be undertaken against someone who violated his or her oath, but is it certain that steps might not be taken to cancel the citizenship of someone who, after swearing allegiance to the Crown, engages in activity which seeks to abolish it totally? If the oath of loyalty permits one to demonstrate that loyalty to the Crown by advocating its abolition, what is the point of that oath? Is that loyalty or is it disloyalty? Is the oath merely a meaningless formality? Is there any commitment to its content required? Does it have any purpose at all? If all the oath of allegiance achieves is to get someone to promise not to violate the criminal law and to avoid subversive and illegal political methods, something they are already obligated to do, is it of any value?
In my view, it is arguable, at least, that the oath of allegiance has some meaning other than merely promising to obey the criminal law and to use legitimate means for political change. What is involved here is not the mere utterance of a few words, as my brother MacGuigan suggests, but the expression of 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” as he also recognizes. If someone is fundamentally opposed to a significant aspect of that Constitution, and wishes to work toward its abolition, not merely its reform, it is arguable that that person may violate the oath by words and conduct in furtherance of that goal. It may not be unreasonable for the appellant, if he truly holds the beliefs he claims to hold, to feel that, by taking this oath, he is inhibited to some extent in his anti-monarchy activities. In other words, his serious view of the oath might be taken seriously. It may be that, after a trial, it might be concluded that the appellant was being made to choose between his political principles and his enjoyment of Canadian citizenship, something the Charter is supposed to prevent. It may be that Mr. Justice MacGuigan’s view would prevail. It may be that section 1 might be invoked to justify any prima facie violation of the Charter, or it might not. In light of the uncertainty surrounding this question, it would be advisable, before resolving this matter, to have the benefit of factual underpinnings and full legal argument based on those facts.
On the applicability of freedom of thought to oaths of citizenship, I would like to refer to United States v. Schwimmer, 279 U.S. 644 (1929). In that case, a woman who was a conscientious objector was denied American citizenship since she stated that she would refuse to take up arms in defence of the United States, which was required by the citizenship oath at that time. In his dissenting reasons, Mr. Justice Holmes took the majority to task in ringing terms, at pages 654-655:
[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate. I think that we should adhere to that principle with regard to admission into, as well as to life within this country.
Mr. Justice Holmes’ statement, protecting “freedom for the thought that we hate”, which has carried the day in subsequent decisions of the United States Supreme Court, buttresses my conclusion that the appellant’s claim with respect to freedom of thought should not be struck out (see, e.g., Schneiderman v. United States, 320 U.S. 118 (1943)).
Turning to freedom of expression, the appellant alleges that taking an oath or making an affirmation of loyalty to the Queen would, in the future, hinder him from expressing his republicanism. The leading case on freedom of expression is Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, in which the Supreme Court outlined the steps to be undertaken in analyzing an allegation of interference with freedom of expression.
The first step is whether the activity falls within the protected sphere of expression in that it is an activity that attempts to convey meaning. The declaration, while poorly drafted, appears to contemplate expression in the form of speech. This would obviously pass the first step, since this speech would be an attempt to convey a message of republicanism. The content of the speech is irrelevant at this first stage in deciding whether the speech is protected under paragraph 2(b) (see, e.g., R. v. Keegstra, [1990] 3 S.C.R. 697, and R. v. Butler, [1992] 1 S.C.R. 452).
The second step is to determine whether the purpose or effect of the government action is to restrict freedom of expression. There is no evidence, nor do I think any could be led, to suggest that the purpose of the oath or affirmation of citizenship is to curtail freedom of expression.
Turning to the effect of the legislation, the burden will be on the appellant to show that the effect of the oath or affirmation is to restrict his freedom of expression and that his expression seeks to promote at least one of the principles underlying freedom of expression, namely seeking and attaining the truth, participation in social and political decision-making or individual self-fulfilment and human flourishing. Promoting republicanism likely falls within these parameters. Thus, strict adherence to the oath or affirmation of loyalty to the Queen might be felt by the appellant to prevent him from expressing his republicanism, even though it might not in law actually do so.
The appellant’s claim that the oath or affirmation abridges his freedom of expression as guaranteed by paragraph 2(b) of the Charter should, therefore, not be struck out.
The appellant might also have argued that being compelled to make a statement of allegiance to the Queen is itself a violation of his freedom of expression, just as the United States Supreme Court held in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943). In that case a compulsory salute to the American flag was found to be a violation of freedom of expression. Mr. Justice Jackson wrote, at page 642 this oft-quoted passage:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion … or act their faith therein.
However, the appellant has not made this argument before this Court.
Before leaving this topic, it should be mentioned that one might argue that the appellant’s personal feelings of inhibition regarding his belief in and expression of his republicanism are not constitutionally or legally irrelevant. An argument might be made that there is no nexus between the oath of citizenship and the appellant’s freedom to believe in and to express his republicanism. It might be said that it is the appellant’s republicanism, when combined with his belief that the terms of an oath must be faithfully observed, that prevents him from getting citizenship, and not the oath itself. This is not unlike the argument that was put before the Supreme Court in Edwards Books, supra, to the effect that it was the religion of Saturday observing retailers that imposed a burden on those retailers, and not the Sunday-closing laws. Chief Justice Dickson rejected this argument by comparing the relative positions of Saturday and Sunday observers in the absence of the impugned law (which were found to be the same), and then demonstrating that the law imposed on Saturday observing retailers a choice between breaking their sabbath or suffering a competitive disadvantage. Thus it was held that the law imposed a coercive burden on the free exercise of their religion by Saturday observers.
It may be contended that a careful analysis of the situation in the present appeal shows that it is equally wrong to say that it is the appellant who is inhibiting himself and not the law which is inhibiting him. Our courts must obviously beware of individuals who complain constantly that their freedom is threatened when it is not. However, one should compare the situation of someone born to Canadian citizenship and someone who is in all respects eligible for Canadian citizenship and faces only the oath as the final hurdle. Suppose that both of these people are republicans, who are extremely committed to their political beliefs, but they also believe that having sworn an oath of allegiance to an institution it would be wrong to advocate the abolition of that institution. In the absence of the oath of citizenship, both republicans would become citizens (the one on birth, the other through naturalization) and their positions would be equivalent. If the oath of citizenship is introduced by law for people seeking Canadian citizenship through naturalization, however, the republican who was not born a citizen appears to face a choice imposed by law between adhering to his or her beliefs, and thereby foregoing Canadian citizenship, or violating his or her beliefs as to the meaning of an oath of allegiance after swearing one.
It may be said, then, that the law requiring an oath of allegiance may deny the appellant the freedom to believe in a political principle, if he is able to prove the facts alleged at trial. Of course, if the appellant succeeds in establishing that a limit has been placed on his freedom under paragraph 2(b), that limit may be justified pursuant to section l, but that is a question that is not at issue in this appeal, as I shall explain below.
(c) Freedom of peaceful assembly
The appellant next alleges that the oath or affirmation in its present form abridges his freedom of peaceful assembly under paragraph 2(c) of the Charter.
There is scant case law on the guarantee of freedom of peaceful assembly. However, what little there is would appear to indicate that freedom of peaceful assembly is geared towards protecting the physical gathering together of people. Nothing in the oath or affirmation prevents the appellant from assembling with others. In my opinion, paragraph 2(c) of the Charter was not intended to protect the objects of an assembly that is organized to foster freedom of thought, belief, opinion or expression, or freedom of association, for that would be protected independently. The portion of the appellant’s declaration relating to freedom of peaceful assembly should, therefore, be struck out.
(d) Freedom of association
With respect to freedom of association under paragraph 2(d) of the Charter, the appellant’s argument is that to uphold his pledge of loyalty to the Queen in the oath or affirmation of citizenship, he could not join republican associations or participate in any republican rallies or meetings. The appellant submits that he is a republican and that in order to adhere to an oath or affirmation of loyalty to the Queen, he would feel bound to abstain from joining republican associations or participating in the lawful activities of republican associations.
The leading case on paragraph 2(d) of the Charter is Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313. McIntyre J., who wrote for the majority, at page 393, did not discuss whether incapacitating an individual from joining certain political associations would violate freedom of association. However, he did set out a description of the function of freedom of association in a democratic society:
Freedom of association is one of the most fundamental rights in a free society. The freedom to mingle, live and work with others gives meaning and value to the lives of individuals and makes organized society possible. The value of freedom of association as a unifying and liberating force can be seen in the fact that historically the conqueror, seeking to control foreign peoples, invariably strikes first at freedom of association in order to eliminate effective opposition. Meetings are forbidden, curfews are enforced, trade and commerce is suppressed, and rigid controls are imposed to isolate and thus debilitate the individual.
McIntyre J.’s broad statement of the purpose of paragraph 2(d) recognized that freedom of association is indispensable to the proper functioning of democracy. This could certainly comprehend the notion that a forced statement of loyalty to the Queen as representative of monarchism would violate freedom of association if, in fact, that oath of allegiance prevented an individual from joining an association of an anti-monarchical nature.
In particular, paragraph 2(d) protects the appellant’s right to exercise his constitutional right to freedom of thought, belief, opinion and expression in combination with others. As McIntyre J. explained at page 409, supra:
It follows from this discussion that I interpret freedom of association in s. 2(d) of the Charter to mean that Charter protection will attach to the exercise in association of such rights as have Charter protection when exercised by the individual. Furthermore, freedom of association means the freedom to associate for the purposes of activities which are lawful when performed alone.
Freedom of association, therefore, protects the collective aspect of the exercise of individual freedoms such as freedom of thought, belief, opinion and expression. The sharing of ideas and activities with others strengthens and nourishes the individual’s convictions, and ultimately provides for vital developments and needed changes in a democratic society.
It may be argued that it strikes at the very heart of democracy to curtail collective opposition and incentive for change by demanding loyalty to a particular political theory. Similarly, it may be said that it is wrong to build a barrier to joining associations dedicated to a different political theory. The appellant, though perhaps not legally forbidden to do this, might well feel so circumscribed, given the primitive state of the law at this time. Therefore, I cannot say at this stage that there is no chance that the appellant, given the opportunity to adduce evidence and arguments, could succeed on this point, and, therefore, this portion of the declaration should not be struck out.
SECTION 12—FREEDOM FROM CRUEL AND UNUSUAL PUNISHMENT
Section 12 of the Charter is a legal right and guarantees freedom from cruel and unusual punishment or treatment:
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
The appellant contends that compelling him to take the oath or make the affirmation in its present form against his conscience under threat of exposure to loss of residential status and denial of citizenship is cruel and unusual treatment. This argument has no merit.
The standard for cruel and unusual treatment is whether the treatment outrages standards of decency (see R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045, at page 1072, and Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711). The consequences to the appellant of not swearing the oath or making the affirmation cannot be said to outrage standards of decency. He may not obtain citizenship, something that is most unfortunate, but this is hardly something that could be classified as “cruel and unusual treatment.” This portion of the appellant’s declaration should be struck out.
SUBSECTION 15(1)—EQUALITY RIGHTS
The appellant claims that the oath or affirmation is contrary to subsection 15(1) of the Charter which reads as follows:
15. (1) Every individual is equal before and under the law and has the right to the equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The appellant alleges that the oath or affirmation of citizenship is contrary to subsection 15(1) in three ways. First, a permanent resident desiring to become a naturalized citizen is required to take the oath while people who are Canadian citizens by birth are not. Second, a permanent resident who wishes to become a Canadian citizen and thereby attain full political rights is obliged to take the oath while residents who are citizens by birth are not required to take the oath to attain full political rights. Finally, the appellant claims that the oath sets up a class of human beings (“the Windsor family”) who are represented as being perpetually superior to other human beings, which conflicts with the appellant’s belief in the equality of all human beings because it prevents people born outside of Great Britain from attaining the highest office in Canada. I will address these allegations in reverse order.
The third claim under subsection 15(1) must be struck out. It is the monarchy itself, and not the oath or affirmation, which elevates the Windsor family to its exalted position. It is the traditions of the monarchy that also prevent people born outside of Britain from attaining the highest office in this country. As for the appellant’s claim that the oath conflicts with his belief in the equality of all human beings, this is more properly a claim that might have been brought under paragraph 2(a) or 2(b) but was not.
The second claim under subsection 15(1) must also be struck out. There are no facts presented in the declaration which, if true, would support the appellant’s allegation that “residents who are not citizens by birth” cannot attain full political rights in Canada. There is no factual basis in the declaration for this claim.
I am of the opinion, however, that the appellant’s final claim under subsection 15(1) should not be struck out. Chief Justice Lamer summarized the proper approach under subsection 15(1) in R. v. Swain, [1991] 1 S.C.R. 933, at page 992:
The court must first determine whether the claimant has shown that one of the four basic equality rights has been denied (i.e., equality before the law, equality under the law, equal protection of the law and equal benefit of the law). This inquiry will focus largely on whether the law has drawn a distinction (intentionally or otherwise) between the claimant and others, based on personal characteristics. Next, the court must determine whether the denial can be said to result in “discrimination”. This second inquiry will focus largely on whether the differential treatment has the effect of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to opportunities, benefits and advantages available to others. Furthermore, in determining whether the claimant’s s. 15(1) rights have been infringed, the court must consider whether the personal characteristic in question falls within the grounds enumerated in the section or within an analogous ground, so as to ensure that the claim fits within the overall purpose of s. 15—namely, to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society.
The appellant’s declaration discloses that people who become Canadian citizens by birth are not required to take the oath or make the affirmation of citizenship. Conversely, non-citizens who wish to become Canadian citizens through the process of naturalization are required, in addition to being otherwise qualified, to take the oath or make the affirmation of citizenship. Therefore, taking the facts in the declaration as true, it is possible to say that non-citizens are denied equality under the law in that the Citizenship Act appears to draw a distinction between two groups, namely people who attain citizenship automatically by birth and people who must apply for citizenship. The Government is not required to provide for automatic citizenship upon birth in Canada or to Canadian parents. However, having created two legal categories of people (those who do obtain automatic citizenship and those who must apply for citizenship), the Government must not deny equality under the law to either of these two groups.
This does not mean that it is not permissible to set up a process for new citizens; it must not, however, be a discriminatory process. Thus, in addition to the differential treatment, the appellant will have to demonstrate at trial that any inequality under the law is discriminatory. As Lamer C.J. stated in Swain, supra, to establish discrimination, the claimant must show that there is differential treatment which imposes a burden or withholds a benefit on the basis of a personal characteristic that is related to one of the grounds enumerated in subsection 15(1) or an analogous ground. However, a claimant will not succeed in showing discrimination by merely pointing to a disadvantageous distinction drawn on the basis of a personal characteristic related to an enumerated or analogous ground. Courts must also ensure that the claim falls within the primary purpose of subsection 15(1), which is mainly “to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society” (Swain, supra, at page 992). As Madam Justice Wilson stated in R. v. Turpin, [1989] 1 S.C.R. 1296, at page 1332:
A finding that there is discrimination will, I think, in most but not all cases, necessarily entail a search for disadvantage that exists apart from and independent of the particular legal distinction being challenged.
Taking the facts in the appellant’s declaration as true, the differential treatment of non-citizens with respect to the oath of citizenship may be said to withhold citizenship from a person who, because of his or her beliefs, feels he or she cannot swear the oath. This, it may be argued, constitutes a denial of a benefit (citizenship) from someone, a benefit that apparently would not be withheld from a person of similar beliefs who was born a Canadian citizen.
According to the appellant, this differential treatment of non-citizens as a group is drawn on the basis of a personal characteristic (citizenship) which is also an analogous ground under subsection 15(1). As I stated in my concurring reasons in Schachtschneider, supra, one must distinguish between a ground of discrimination and the group enduring discrimination. For example, women as a group may endure discrimination on the ground of sex. The Supreme Court has recently recognized in the context of subsection 15(1) that a so-called sub-group may also experience discrimination on the basis of a broader ground (Symes v. Canada, [1993] 4 S.C.R. 695). This had already been accepted by the Supreme Court in the context of human rights legislation in Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219, and Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252. I applied the reasoning in these cases to subsection 15(1) of the Charter in my reasons in Schachtschneider, supra, and the Supreme Court has also done so in Symes, supra. Thus non-citizens seeking Canadian citizenship through naturalization, as a group, may experience discrimination on the ground of citizenship.
Further, it is possible that non-citizens as a group are disadvantaged independently of the distinction at issue in this appeal and that the appellant may therefore be successful in showing the “indicia of discrimination such as stereotyping, historical disadvantage or vulnerability to political and social prejudice” (Turpin, supra, at page 1333). The Supreme Court has already held in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 142, that citizenship is an analogous ground under subsection 15(1) of the Charter and that non-citizens constitute a politically disadvantaged group in Canadian society that can be characterized as a “discrete and insular minority”. The appellant’s claim may, therefore, arguably fall within the ambit of subsection 15(1).
Before leaving my discussion of subsection 15(1), I would like to add that the analysis under subsection 15(1) differs from the analysis under paragraph 2(a). Under paragraph 2(a), a plaintiff must show a coercive burden on his or her freedom of conscience or religion that is more than trivial or insubstantial. This is not the case with respect to subsection 15(1). As I stated in my reasons in Schachtschneider, supra, at page 79:
Unlike the guarantee of freedom of religion in paragraph 2(a) of the Charter, however, the promise of equality in section 15 does not exclude claims on the basis that the violation is minuscule, trivial or insubstantial.
This follows from the decision of the Supreme Court in Andrews, supra. As McIntyre J. wrote, at page 182:
Where discrimination is found a breach of s. 15(1) has occurred and—where s. 15(2) is not applicable—any justification, any consideration of the reasonableness of the enactment; indeed, any consideration of factors which could justify the discrimination and support the constitutionality of the impugned enactment would take place under s. 1. This approach would conform with the directions of this Court in earlier decisions concerning the application of s. 1 and at the same time would allow for the screening out of the obviously trivial and vexatious claim.
Consequently, even if it turns out that subsection 15(1) is violated by the requirement of the citizenship oath, it may be a reasonable limit, demonstrably justified in a free and democratic society. The respondent will bear the burden of proving this aspect of the case, at the trial.
For these reasons, the appellant’s first claim under subsection 15(1) should not be struck out.
SECTION 27—MULTICULTURAL HERITAGE
The appellant raises section 27 of the Charter which states:
27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
The appellant argues that the idea of an English hereditary monarchy precludes full participation in governing Canada by members of many different racial and multicultural groups. As with the appellant’s other points, this argument is poorly framed since it appears to challenge the monarchy itself. Impliedly, however, the appellant is arguing that the oath of citizenship works against the preservation and enhancement of the multicultural heritage of Canadians in that it requires allegiance to an exclusively British institution that may be in conflict with the ideals of persons of non-British backgrounds.
It is not necessary to plead this provision. Nor is it a substantive provision that can be violated. Since section 27 does not protect a particular right or freedom, it being relevant only as an aid to interpretation, it should not be pleaded in the way it has been. His claim under section 27 should, therefore, be struck out.
SECTION 1
The appellant is not required in his declaration to anticipate or rebut the Government’s arguments with respect to section 1 of the Charter. The likelihood of justification under section 1 for the oath or affirmation in its present form is, therefore, not relevant to this application to strike out the declaration, and I will, consequently, not consider at this stage any substantive arguments with respect to whether any potential Charter violations raised in the appellant’s declaration are saved under section l.
SUMMARY OF CONCLUSIONS ON THE CHARTER
The appellant’s claim with respect to freedom of conscience and religion under paragraph 2(a), his claim under paragraph 2(c), his claim under section 12, the second and third of his claims under subsection 15(1), and his claim under section 27 should be struck out. The remainder of the appellant’s declaration, involving arguments under paragraphs 2(b) and 2(d), and his first claim under subsection 15(1) while not a model of clarity in drafting nor of comprehensiveness in facts and law, cannot be said, plainly and obviously, to disclose no reasonable cause of action and should not be struck out at this preliminary stage.
REMEDIES
In order for the appellant’s declaration not to be struck out, he must have requested a remedy that is within the jurisdiction of the Court. The Court cannot declare, as the appellant has requested, that the appellant is entitled to a grant of citizenship without having to take the oath in its present form, since the appellant has no right or entitlement to citizenship.
The appellant has also requested a constitutional exemption from the taking of the oath. The submissions of the parties on this issue are distinctly lacking in analysis, particularly given the highly contentious subject of constitutional exemptions. Suffice it to say that it is unclear that a constitutional exemption is available in a case such as this, where the appellant seeks primarily to challenge not government action under a constitutional law, but the constitutionality of the very law itself. A constitutional exemption is a remedy available under subsection 24(1) of the Charter. But, where legislation is found to be unconstitutional, the proper remedial course is normally under section 52 of the Constitution Act, 1982, which provides that a law that is inconsistent with the Constitution is of no force and effect. Cases such as R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577; Schachter v. Canada, [1992] 2 S.C.R. 679; and Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, all appear to indicate that, where a law has been found unconstitutional and there is no delayed declaration of invalidity, a constitutional exemption may not be available. There exists also contrary authority (R. v. Seaboyer (1987), 61 O.R. (2d) 290 (C.A.); R. v. Chief, [1990] N.W.T.R. 55 (Y.T.C.A.)). Because of the uncertainty surrounding the matter at this time, I would leave the question of the appropriate remedy, if any, to the Trial Judge.
I note that the appellant’s request for a declaratory judgment that he is entitled to an exemption from the requirement of taking the citizenship oath in its present form could also be read as a request to sever the offending portion from the oath. This sort of remedy under section 52 of the Constitution Act, 1982 has been permitted by the Supreme Court in Schachter, supra.
CONCLUSION
In conclusion, I would affirm the Trial Court in part and allow the appeal in part and order that the appellant’s claim under paragraphs 2(a) and 2(c), his claim under section 12, the second and third of his three claims under subsection 15(1) and his claim under section 27 be struck out. The claims under paragraphs 2(b) and 2(d) and the first claim under subsection 15(1) would, therefore, survive. A fresh statement of claim or declaration, consistent with these reasons and containing greater particularity, may be delivered within 30 days of the issuance of these reasons, if the appellant chooses to do so.
These reasons can, in no way, affect the possible merits of the remaining claims of the appellant. They merely indicate that it is not “plain and obvious” that some of them cannot ultimately succeed; they may or may not, depending on the evidence adduced and the arguments presented to the Trial Judge. Moreover, these reasons have not and cannot take into account any evidence offered or arguments that may or may not be made on behalf of the Government under section 1 of the Charter to justify any potential infringement of the appellant’s Charter rights. All that has been done here is to identify those of the appellant’s claims which had no chance of success, and to strike them out, and those that may have had a chance of success, and to refrain from striking them out, at this stage, leaving them for disposition after a trial.
[1] The conventions of the Canadian Constitution are endowed with constitutional authority by virtue of the words in the preamble of the Constitution Act, 1867, that Canada have “a Constitution similar in Principle to that of the United Kingdom.” They could, of course, be specified or amended by constitutional amendment. The principal proposal to provide a realistic statement of the conventions underlying the Canadian system was that by then Prime Minister Trudeau, The Constitution and the People of Canada, published by the Government of Canada in 1969, and was never adopted.
[2] If he did advocate revolutionary change, such advocacy could not, of course, receive constitutional protection, since it would be by definition anti-constitutional.