T-460-91
Charles C. Roach (PlaintiffslAppellant)
v.
The Minister of State for Multiculturalism and
Citizenship (DefendantlRespondent)
INDEXED AS.' ROACH V. CANADA (MINISTER OF STATE FOR
MULTICULTURALISM AND CULTURE) (TD.)
Trial Division, Joyal J.—Toronto, November 18,
1991; Ottawa, January 21, 1992.
Citizenship — Appeal from decision striking statement of
claim for failure to disclose reasonable cause of action —
Action for declaration oath or affirmation of allegiance to
Queen prescribed in Citizenship Act, s. 24 unconstitutional as
violation of Charter guaranteed rights — Queen as Head of
State integral part of Constitution — Citizenship Act enacted
pursuant to Parliament's exclusive authority to legislate as to
Naturalization and Aliens under Constitution Act, 1867, s.
91(25) — Proper for Parliament to require that citizenship
applicants swear or affirm loyalty to Head of State — Laws
reflecting religious tradition, culture and values still secular or
positivistic in nature — To grant exemptions claimed by appel
lant would permit imposition of private beliefs on laws of gen
eral application contrary to principles of secular state —
Appeal dismissed — Relief sought matter for Parliament or
constitutional amendment.
Constitutional law — Charter of Rights — Citizenship Act,
s. 24 requiring oath or affirmation of allegiance to Queen —
Citizenship applicant's submission that oath violating Charter
ss. 2(a),(b), 12, 15 and 27 — Queen's presence as Canada's
Head of State integral part of Constitution — No part of Con
stitution paramount over another — Oath of allegiance to
Queen equivalent to oath of allegiance to Canada's Head of
State — Proper to require that citizenship applicants swear or
affirm loyalty to Head of State who legitimizes laws of Canada,
which provide for peace, order and good government of citi
zens —Arguments oath violation of freedom of religion (Queen
head of Church to which applicant does not belong), and free
dom of expression (in regard to republicanism) lacking legal or
constitutional content — If against applicant's conscience to
make oath to all but Supreme Being or to principles of truth,
freedom, equality, justice and rule of law, Citizenship Act per
mitting affirmation in alternative — As to rejection of notion
Queen should be Head of State or that Canada should have
Head of State, concept of Head of State reposing in Queen
clearly established in Constitution, supreme law of land — To
grant exemptions claimed by applicant would permit imposi-
tion of private beliefs on laws of general application contrary
to principles of secular state.
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. 2(a),(b), 12, 15, 27.
Citizenship Act, R.S.C., 1985, c. C-29, s. 24.
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, 17, 91(25).
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44],
ss. 41, 52(1) ,(2)(a).
Federal Court Rules, C.R.C., c. 663, R. 419.
CASES JUDICIALLY CONSIDERED
APPLIED:
Reference re an Act to Amend the Education Act (1986),
53 O.R. (2d) 513; 25 D.L.R. (4th) 1; 13 O.A.C. 241
(C.A.); R. v. Eldorado Nuclear Ltd, [1983] 2 S.C.R. 551;
(1983), 4 D.L.R. (4th) 193; 7 Admin. L.R. 195; 8 C.C.C.
(3d) 449; 77 C.P.R. (2d) 1; 50 N.R. 120; 1 O.A.C. 243.
REFERRED TO:
O'Sullivan v. M.N.R., [1992] 1 F.C. 522; (1991), 91 DTC
5491 (T.D.).
AUTHORS CITED
Brun, Henri and Tremblay, Guy, Droit constitutionnel, 2e
éd., Editions Yvon Blais Inc., Cowansville, 1990.
COUNSEL:
Christopher Black for plaintiff/appellant.
Bonnie J. Boucher for defendant/respondent.
SOLICITORS:
Roach, Schwartz & Associates, Toronto, for
plaintiff/appellant.
Deputy Attorney General of Canada for
defendant/respondent.
The following are the reasons for judgment ren
dered in English by
JOYAL J.:
BACKGROUND
The appellant filed an action for a declaratory
judgment with this Court on February 22, 1991. He
claimed that he was entitled to a grant of citizenship
without having to take the oath of citizenship in its
present form which is:
I swear (or affirm) that I will be faithful and bear true allegi
ance 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 appellant's claim is that the citizenship oath in
its present form violates certain rights and fundamen
tal freedoms guaranteed under the Canadian Charter
of Rights and Freedoms [being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982,
c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. He
believes that the citizenship oath violates his free
doms under paragraphs 2(a), 2(b) as it is against his
conscience to make oaths to all but the Supreme
Being and to principles of truth, freedom, equality,
justice and the rule of law. He further states that tak
ing the oath would have the effect of hindering his
freedom to express his sentiments in regards to
republicanism. Finally, he argues that the oath vio
lates his freedom of religion under paragraph 2(a)
inasmuch as Her Majesty the Queen is head of the
Anglican Church and he is not of that faith.
The appellant makes the further arguments that
compelling him to take the oath as a prerequisite to
citizenship amounts to a violation of his section 12
right against cruel and unusual punishment.
The appellant claims that section 15 guaranteeing
equality before and under the law is infringed inas
much as the Citizenship Act [R.S.C., 1985, c. C-29]
creates a distinction between native-born Canadians
and naturalized citizens. Furthermore, he states that
the requirements of the Citizenship Act are also in
violation of section 15 in that it sets a class of human
beings, namely the Royal Family or the House of
Windsor apart from others.
Finally, the appellant argues that the Act is con
trary to the spirit of section 27 of the Charter, which
provides that the Charter shall be interpreted in a
manner consistent with the preservation and enhance
ment of the multicultural heritage of Canadians.
The Prothonotary, without giving reasons, struck
out the statement of claim pursuant to Rule 419 of the
Federal Court Rules [C.R.C., c. 663] on the ground
that it disclosed no reasonable cause of action.
The appellant appeals this decision to this Court.
FINDINGS
The' Canadian Charter of Rights and Freedoms
was made part of the Constitution of Canada by vir
tue of paragraph (2)(a) of section 52 of the Constitu
tion Act, 1982 [Schedule B, Canada Act 1982, 1982,
c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], as
were the pre-existing British North America Acts,
1867 to 1975 (renamed as Constitution Acts, 1867 to
1975 by the Schedule) by virtue of paragraph (2)(b)
of section 52. As a result, it is all of these Acts that
are proclaimed to be part of the Constitution of
Canada. Subsection 52(1) in turn qualifies this Con
stitution as the "supreme law of Canada" (see Refer
ence re an Act to Amend the Education Act (1986), 53
O.R. (2d) 513 (C.A.), at pages 565-566).
The essence of the appellant's claim is that the
oath as prescribed in the Citizenship Act is unconsti
tutional as it violates the various rights and freedoms
as guaranteed in the several sections to which I have
already referred.
Canada can be called a constitutional monarchy in
the sense that its Head of State, i.e. the Queen, is a
person chosen along hereditary lines. However, since
1926 there exists a king or queen of Canada, distinct
at law from the British Monarch and there is now a
distinction between the king or queen of Great Brit-
ain and the king or queen as Head of State for
Canada (see Brun, H. and Tremblay, G., Droit consti-
tutionnel, 2nd ed., Les éditions Blais Inc., at pages
340-342).
The Queen's presence as Canada's Head of State is
an integral part of our Constitution as evidenced by
sections 9 and 17 of 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]] and sec
tion 41 of the Constitution Act, 1982:
III. EXECUTIVE POWER
9. The Executive Government and Authority of and over
Canada is hereby declared to continue and be vested in the
Queen.
IV. LEGISLATIVE POWER
17. There shall be One Parliament for Canada, consisting of
the Queen, an Upper House styled the Senate, and the House of
Commons.
41. An amendment to the Constitution of Canada in relation
to the following matters may be made by proclamation issued
by the Governor General under the Great Seal of Canada only
where authorized by resolutions of the Senate and House of
Commons and of the legislative assembly of each province:
(a) the office of the Queen, the Governor General and the
Lieutenant Governor of a province;
As was stated in Reference re an Act to Amend the
Education Act, supra [at page 5661:
No part of the Constitution is made, by virtue of s. 52, para
mount over any other. Each provision which is part of the Con
stitution of Canada, must be read in light of the other provi
sions, unless otherwise specified.
In the Canadian context the Queen is equivalent to
"State" and "Crown" as evidenced by this passage by
Dickson J. [as he then was] in R v. Eldorado Nuclear
Ltd., [1983] 2 S.C.R. 551, at page 562:
In Canada, the head of state is Her Majesty the Queen, the
reigning monarch of the United Kingdom. By providing that
"no enactment is binding on Her Majesty ... except only as
therein mentioned or referred to", Parliament has put the state,
commonly referred to as the Crown, beyond the reach of Acts
of Parliament....
Where the Citizenship Act requires that a person
take an oath of citizenship to Her Majesty Queen
Elizabeth the Second, Queen of Canada, Her Heirs
and Successors, it is requiring an oath to this coun-
try's Head of State. Subsection 91(25) of the Consti
tution Act, 1867 confers upon Parliament the exclu
sive authority to legislate with respect to
Naturalization and Aliens and the Citizenship Act
might be said to be legislation under this authority.
It is, in my view, quite proper for Parliament to
require of persons wishing to become Canadian citi
zens that they swear or affirm their loyalty to our
Head of State. That the Head of State should be
found in the person of Her Majesty the Queen might
be a matter for debate but it is nevertheless as much
of a part of our constitutional framework as are the
provisions of the Charter. Furthermore, the personi
fied symbol of Her Majesty the Queen as Head of
State is not, in terms of our long constitutional heri
tage, a latter-day invention of some imaginative or
manipulative spinner of tales but the result of con
stantly evolving constitutional principles which are
cloaked in constitutional conventions in the United
Kingdom and partly codified, in Canada, in the Con
stitution Act, 1982.
The Head of State, as Her Majesty is so defined, is
the very embodiment of the freedoms and liberties
which the appellant has inherited and which he now
enjoys. In a legal sense, the Head of State legitimizes
the laws of Canada which in concrete terms, provide
for the peace, the order and the good government of
its citizens.
Constitutionally speaking, Canada's Head of State
could be a Muslim or an Atheist; the Head of State
could be someone picked at random from a 6/49 kind
of lottery. The Head of State could conceivably be
anyone or anything. One recalls that the Goddess of
Reason was so anointed in the course of the French
Revolution.
In that sense, the argument raised by the appellant
that Canada's Head of State is the Queen, when he
speaks of republicanism, that she is Anglican, when
he professes some other faith, is evidence to me of a
dialectic which is bereft of any legal or constitutional
content. Similarly, if the appellant feels that it is
against his conscience to make oaths to all but the
Supreme Being or to principles of truth, freedom,
equality, justice and the rule of law, the statute does
not impose an oath of allegiance. Indeed, out of
respect for individual consciences an affirmation of
allegiance will do as well. I fail to see where such an
obligation could conceivably run counter to para
graph 2(a) of the Charter.
The same applies to the appellant's other pleas for
exemption, namely that he rejects the notion that the
Queen should be Head of State or that Canada should
have a Head of State at all. The concept, however, of
the Head of State reposing in the person of the
Queen, is clearly established in the Constitution and
is part of the supreme law of the land. It is the same
law which, on a balance of values in our society,
guarantees to the appellant the right to pursue his
greater happiness through advocating or pushing for
some other form of constitutional structure.
The appellant must he aware that Canada is a secu
lar state and although many of its laws reflect relig
ious tradition, culture and values, they are nonethe
less 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. I should refer in this
respect to the seminal reasons for judgment of my
colleague Muldoon J. in O'Sullivan v. M.N.R., [1992]
l F.C. 522 which deals with other claims for exemp-
tion and in which the true secular basis of Canada's
Constitution is reviewed at length.
The appellant of course, is perfectly free to push,
in Parliament, for the elimination of the oath of
allegiance, or for a change in its wording, or to advo
cate other changes more in keeping with his beliefs. I
should only wish to stress that the statutory provision
for an oath or affirmation of allegiance in section 24
of the Citizenship Act cannot, in my view, be chal
lenged under Charter grounds. It seems clear to me,
on the strength of the Ontario Court of Appeal's deci
sion in the Reference re an Act to Amend the Educa
tion Act (supra) that the relief sought is a matter for
Parliament or for constitutional amendment in accor
dance with the amendment formula set out in section
41 of the Constitution Act, 1982.
CONCLUSION
In conclusion, the learned Associate Senior Pro-
thonotary was right in striking the appellant's claim
and the appeal is accordingly dismissed, with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.