On September 20, 2013, Justice Edward Morgan of the Ontario Superior Court of Justice (the “ONSC“) released his decision in McAteer et al v. Attorney General of Canada, 2013 ONSC 5895 (“McAteer“). McAteer involved a constitutional challenge to the citizenship oath requirement on the grounds that the requirement violates the constitutional protections of freedom of expression, freedom of religion, and equality that are found in The Canadian Charter of Rights and Freedoms (the “Charter“). Ultimately, while the ONSC determined that the citizenship oath requirement does indeed violate s. 2(b) of the Charter‘s right to freedom of expression, the ONSC ultimately found that the breach was justified under the reasonable limits test under s. 1. The ONSC also held that the citizenship oath requirement does not breach either s. 2(a) or 15 of the Charter, which protect freedom of religion and equality.
In reaching its decision, the ONSC interpreted the citizenship oath’s references to the queen in a very different way than I think most people do. It is this interpretation that is going to be the subject of this blog post, as I think the McAteer decision can provide some meaning and significance to potential oath takers. (For those interested in reading a summary of how Justice Morgan analysed the Charter challenges, including his application of the Oakes test, I suggest you read this wonderfuly concise 12 paragraph summary.)
The Citizenship Oath
Section 3(1)(c) of the Citizenship Act, RSC 195, c C-29 (the “Citizenship Act“), provides that:
Subject to this Act, a person is a citizen if the person has been granted or acquired citizenship pursuant to section 5 or 11 and, in the case of a person who is fourteen years of age or over on the day that he is granted citizenship, he has taken the oath of citizenship
Section 12(3) of the Citizenship Act goes on to provide that a citizenship certificate does not become effective until a permanent resident takes the oath. In 2011, the Government of Canada also made it a requirement that citizenship judges be able to see the faces (specifically the lips) of people taking the oath.
The citizenship oath is:
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.
Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors
In my experience, most people who are about to take the citizenship oath do so with great excitement at the prospect of finally becoming Canadian citizens. However, they are unsure what to make of the oath’s references to Her Majesty Queen Elizabeth. While the appellants in McAteer may have been uniquely outraged by the requirement to pledge loyalty to the queen, most find the requirement simply bemusing. (One client even jokingly commented that he would bow to Kate Middleton any day.)
To paraphrase Justice Morgan, however, our “problem” might be that we are taking the oath literally. As Justice Morgan noted, however, a purposive interpretation of the citizenship oath shows that the references to the queen are not literally to an elderly lady with a unique wave, but are rather refer to loyalty to Canada’s constitutional monarchy / democracy. As Justice Morgan noted:
Her Majesty the Queen in Right of Canada (or Her Majesty the Queen in Right of Ontario or the other provinces), as a governing institution, has long been distinguished from Elizabeth R. and her predecessors as individual people. Thus, for example, Canada has divided sovereignty, with both the federal and provincial Crowns represented by the Her Majesty.
Justice Morgan also noted that the Crown (as symbolized by Her Majesty Queen Elizabeth) sits at the sovereign apex of Canada’s legal and political system. In our system of constitutional monarchy, the sovereign, like all institutions of state, exercises power within constitutional limitations. However, there is no doubt that Her Majesty the Queen is Queen of Canada, the embodiment of the Crown in Canada, and the head of state.
Hence, on whether or not people are being forced to pledge loyalty to a foreign lady of privilege, Justice Morgan stated:
Not only is the Canadian sovereign not foreign, as alleged by the Applicants in identifying the Queen’s British origin, but the sovereign has come to represent the antithesis of status privilege.
Accordingly, when one is pledging loyalty to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, one is not literally pledging loyalty to the woman who appears on our currency. Rather, to paraphrase Justice Morgan, oath takers are pledging loyalty to Canada’s domestic institutions that represent egalitarian governance and the rule of law.
A Summary on Freedom of Expression
In its Charter s. 2(b) analysis, the ONSC broadly summarized Supreme Court of Canada jurisprudence on freedom of expression. I found it to be a helpful summary of how “freedom of speech” in Canada works, and have reproduced it below (removing case citations).
As the Supreme Court of Canada pointed out in one of its earliest judgments under section 2(b) of the Charter, “[t]he content of expression can be conveyed through an infinite variety of forms of expression: for example, the written or spoken word, the arts, and even physical gestures or acts.” Certain behaviours such as a labour strike, acts of criminal violence, and the display of commercial wares have been specifically excluded from the ambit of the constitutional right; otherwise, “s. 2(b) of the Charter embraces all content of expression irrespective of the particular meaning or message sought to be conveyed.”
Accordingly, “if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee”. Protected speech therefore includes not only the spoken word but the choice of language, and the right to receive or hear expressive content as much as the right to create it. Section 2(b) also guarantees the right to possess expressive material regardless of how repugnant it may be to others or to society at large.
Most significantly, “[f]reedom of expression encompasses the right not to express views.” As explained by Lamer J. (as he then was) in Slaight Communications Inc. v Davidson, “[t]here is no denying that freedom of expression necessarily entails the right to say nothing or the right not to say certain things. Silence is in itself a form of expression which in some circumstances can express something more clearly than words could do.” A statutory requirement whose effect is “to put a particular message into the mouth of the plaintiff” would run afoul of section 2(b) of the Charter.
Indeed, the right not to express the government’s preferred point of view extends to those who oppose socially positive messages such as health warnings, and includes even the right to refrain from expressing objective, uncontested facts. As Chief Justice Lamer explained in Committee for the Commonwealth of Canada v Canada, individuals are not only protected from having to articulate a message with which they disagree, but are also guaranteed the correlative right not to have to listen to such a message.