The Canadian Citizenship Oath: Exposed

The tide appears to be turning in Mr. Charles Roach’s fifteen year struggle to challenge the requirement that new Canadians pledge allegiance to Queen Elizabeth II. On May 17, 2007, Justice Belobaba from the Ontario Superior Court of Justice gave a green light to a class action suit that Roach is leading, which challenges the constitutionality of a portion of the Canadian Citizenship oath, as it is set out in s. 24 of the Citizenship Act,. R.S.C. 1985 c. C-29. On Feb 19, 2008, the Ontario Court of Appeal dismissed the appeal by the federal government and confirmed that Roach can continue with his class action suit.

Fifteen years ago, the Toronto lawyer was unsuccessful at trial where the judge found no reasonable cause of action. On appeal in 1994, the Federal Court of Canada also struck down Roach’s motion to eliminate the citizenship oath requirement in Roach v. Canada (Minister of State for Multiculturalism and Citizenship) [1994] 2 F.C. 406. MacGuigan J.A. (McDonald J.A concurring )summarized his reasoning as follows:

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.

Linden J.A. dissented in part. He acknowledged that some aspects of the claim were valid, such as the argument that the coerciveness of the impugned law violated freedom of thought, belief and opinion in para 2(b) of the Charter. Other aspects of the claim, however, in particular the infringement of the freedom of conscience, religion and peaceful assembly were struck out. Linden J.A. clarified that “[i]t is only in the most obvious cases that the opportunity to present evidence and full legal argument should be denied a litigant”.

This dissenting voice might have provided further steam for Mr. Roach as he commenced an application under Rule 14.05(3)(g.1) and the Class Proceedings Act 1992, S.O. 1992, c.6 to challenge the constitutionality of that portion of the Canadian citizenship oath. The issue for Mr. Roach has always been that as a requirement for Canadian citizenship, swearing an oath or allegiance “to be faithful and bear true allegiance to Her Majesty the Queen” violates section 2 of the Charter and equality rights under s.15(1) of the Charter. In the current application, Mr. Roach and the applicants are asking for a “declaration to this effect, an injunction restraining the respondent from denying citizenship if the applicants choose not to take this portion of the oath, and a $5000 damages award for each of the members in the class” [3].

One way that the citizenship oath violates section 2 of the Charter is in preventing the applicants from advocating constitutional reform that would eliminate such an “undemocratic vestige of a colonial experience that has no place in a modern and independent Canada” [10]. The applicants believe in a republican form of government and they cannot advocate for this, they say, if they are required to swear an oath to be “faithful and bear true allegiance to Her Majesty the Queen” [11]. The citizenship also arguably violates section 15(1) of the Charter by discriminating “between birth citizens, who are not required to take this oath, and new citizens for whom the oath to the Queen is a pre-condition for citizenship” [12].

Belobaba J. in Roach v. Canada (Secretary of State), (2007) 86 O.R. (3d) 101, concluded that the application should not be struck out because it is not “plain and obvious” and “beyond reasonable doubt” that the action or application is “certain to fail” and has “no chance of success”: Hunt v. Carey Canada Inc., 1990 CanLII 90 (S.C.C.), [1990] 2 S.C.R. 959 (S.C.C.); R.D. Belanger & Assoc. Ltd. v. Stadium Corp. of Ontario Ltd. 1991 CanLII 2731 (ON C.A.), (1991), 5 O.R. (3d) 778 (C.A.)” [15]. In fact, Belobaba J. found that “[t]he possibility that the impugned portion of the citizenship oath may be in violation of sections 2 and 15 of the Charter of Rights has been acknowledged by at least one appellate judge and has been thoughtfully argued by legal commentators: see, for example, the dissenting opinion of Linden J.A. in Roach v. Canada (Minister) and the Charter analysis set out in Edwards, “Let Your Yea be Yea: The Citizenship Oath, the Charter, and the Conscientious Objector” (2002) 60 U.T. Fac. L. Rev. 39” [16].

On a different note, the Attorney General argued that this application amounts to relitigating a case that Mr. Roach had lost in front of the Federal Court of Appeal in 1994 and that this is an abuse of process. Belobaba J. responded to this argument by repositioning the case within the ambit of class proceedings. Mr. Roach is not the only litigant and the other applicants should not be denied the opportunity to bring the same challenge because of an older two-to-one decision on this issue. “And, given that more than fifteen years have passed since the last time this issue was litigated,” Belobaba J. added, “the Charter arguments today will almost certainly be different, or at least more refined [24]”.

The final argument by the Attorney General was that “in the circumstances of this case, this court should decline to hear the matter and yield jurisdiction to the Federal Court” [29]. The reason the respondent cited was because the Federal Court has “exclusive jurisdiction under the Citizenship Act over appeals and other matters pertaining to citizenship, and it has acquired considerable expertise in this area” [30]. However, Belobaba J. reasoned that this case is not an immigration case nor is it a matter involving the “steps taken or not taken by government officials” in their handling of citizenship files. No one is caught up in federal immigration procedures; no one is appealing a denial of citizenship or complaining about delays in the processing of citizenship papers” [32]. This case, according to Belobaba J. is a “straightforward Charter-based constitutional challenge of a federal law.”

Belobaba J. dismissed the motion to stay the application, finding that the case is neither frivolous nor vexatious. The Court of Appeal for Ontario agreed and dismissed a further appeal by the government in Roach v. Canada, 2008 ONCA 124. The importance of this case lies in its symbolism. To a great extent, this case tells the immigrant story from a position of empowerment. The “immigrants” involved in this particular case are exercising agency with respect to an issue that has profound effect on the civic life of all Canadians. This is a narrative in the legal domain that symbolizes many things. This case is a powerful declaration that “permanent residents” can respect the law and challenge it in the proper arena, but not necessarily abide by what might be considered hypocritical requirements placed upon them in a free and democratic society.

This case is also unique because it involves the litigation of section 2 of the Charter rights by “non-citizens” (and “citizens” who were coerced into taking the oath) outside the ambit of immigration law. At an immediate level, this case exemplifies how the Charter can be put to use by “non-citizens”. Beyond the surface though, this case is about the Canadian identity and its intimate connection to the histories of its inhabitants. The issues raised by Mr. Roach’s challenge are ground breaking and should be considered by all Canadians, judges or not.

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15 Responses

  1. Tremaine Lea says:

    I am a little flabbergasted that both the Supreme Court and the wonderfully learned folks who wrote the piece are ignoring or failing to address what I see as a central problem to this case.

    The lawyer in this case is advocating that the oath should not be required to obtain citizenship.

    The applicants believe in a republican form of government and they cannot advocate for this, they say, if they are required to swear an oath to be “faithful and bear true allegiance to Her Majesty the Queen”

    You know what? There’s a nifty little republic just to the south of us.

    More seriously in my opinion, is the apparent legal lobbying from outside Canada, or those unwilling to accept the burden of Canadian citizenship to change the very requirements of citizenship. In my not even vaguely humble opinion, this is something that should be decided *by* Canadians. If we choose to no longer be a constitutional monarchy, that is the choice of Canadians and not anyone else. Whether it’s a foreign citizen or foreign government, we should not be tolerant of outside pressures to change our citizenship requirements. That should be strictly a Canadian choice and decision.

  2. Diana Younes says:

    Allow me to begin by pointing out that Mr. Roach and the similarly situated applicants are not advocating the “that the oath should not be required to obtain citizenship”, rather, they are challenging the constitutionality of a portion of the citizenship oath that pledges allegiance to Queen Elizabeth II. This is not a dramatically extraordinary issue. Australia, a constitutional monarchy as well, demands that new citizens take a ‘pledge of commitment’ to Australia and its people and laws. The United States citizenship oarth requires new citizens to “bear true faith and allegiance” to the constitution and laws of the United States.

    Mr. Roach and many of the applicants have lived in Canada for a very long time. Mr. Roach himself arrived to Canada in 1955, he studied law at UfT and was in turn called to the Ontario bar in 1963. For this reason alone, I disagree with the comment’s characterization that this is an “apparent legal lobbying from outside Canada”. However, regardless of how long or who is launching this case, the issues highlighted in my post and the issues that were flagged in the comment are for everyone to think about.

    I should not have to start by saying that Canada is founded on two main movements of people, one is an influx of immigrant population (starting from Western Europe and slowly incorporating the world) and the second is the vicious genocidal attempts to annihilate the aboriginal population originally occupying and making use of Turtle Island as their home. We know that racism in Canadian Immigration law and practice taint the general history of the painful birth of the Canadian nation.
    I mention this introduction to point out the fragility of the Canadian Identity and to question who is Canadian and according to the above comment, who deserves to decide if Canada should continue being a constitutional monarchy or not.

    Remember this: minutes before swearing an oath one is a permanent resident, or a foreigner to this land, then 5 minutes into the ceremony, one becomes as Canadian as can be. Your rights are their rights (mostly).

    On a less theoretical level, Citizenship requirements are different from Immigration requirements. The former are more stylistic and procedural. In order to get to the stage of demanding citizenship, people have to go through the rigorous demands of their immigration class and pay high dues. In fact, Canadian citizens by birth do not have to engage in either set of requirement and one can argue, against the comment content above, that they have no stake in the issues. However, everyone is to some extent a stakeholder in issues that pertain to our Canadian Identity and as stakeholders we all have a responsibility to engage with our personal history and Canada’s history. As stakeholders, I would further encourage that we all investigate notions of ‘multiculturalism’ and ‘tolerance’ and to expose the limitations of the current discourse on Canadian identity.

    It is unfortunate that in our system, the law is born at the expense of people’s lives, jobs and reputations. Mr. Roach and the applicants (also refugees and immigrants) are doing a commendable job and are bearing the burden in their personal struggles to help explore the complexities of the Canadian society. Instead of invoking an exclusionary imaginary barrier to silence people, the project should instead be to imagine ways we can all invite these conversations to our circles and be inclusive of all stakeholders.

  3. Douglas Creamer says:

    This argument is taking place in the wrong place, this isn’t a matter for the courts. As it now stands we are a constitutional monarchy and as such pledge allegiance to the queen, period. If you want to be Canadian you need to make some sacrifices and this is one of many.
    If we as a people no longer wish to pledge allegiance then we must do away with the monarchy portion of our constitution. IMO Mr. Roach is wasting the courts time and our tax dollars to satisfy his own ego.

  4. Tremaine Lea says:

    Hi Diana,

    I appreciate your extended reply. I’m a bit concerned that you seem to be characterizing my reply as racist in some way however. I wholeheartedly support immigration to Canada. My wife is an immigrant. If there is one thing Canada needs more of, it’s educated people from other countries.

    In fairness, I invited a certain amount of your reply by being less than clear. I feel that *all* Canadians should have a say in a change as significant as this pledge. I think if the pledge for Canadian citizenship is to be altered to remove something central to Canada and it’s history, it should be something brought about by internal debate and legislation.

    It’s perhaps been some time since people took pledges seriously, but citizenship is about as important as it gets. To remove a portion of the existing pledge, particularly one that is highly indicative of the fact we are a constitutional monarchy, should involve all Canadians.

  5. Hicham Safieddine says:

    Mr. Roach should call upon the learned folks Douglas Creamer and Treemaine Lea (respondent above) as witnesses for his case.
    Mr. Creamer says: “If we as a people no longer wish to pledge allegiance then we must do away with the monarchy portion of our constitution,” which is precisely what Mr. Roach is trying to do!!!
    If you learned folks had carefully read the quote posted by Treemaine Lea, the applicant is challenging the constitutionality of bearing allegiance PRECISELY because he wishes to do away with the monarchy portion. For if he decides to do so, he would be undermined by his earlier pledge (which he did not make voluntarily) to be faithful to the queen. He cannot pledge allegiance to the queen and seek to call for abolishing her nominal rule later without being a liar and a traitor and a deceiver of Canadians and so he is asking that he be absolved of such a fate!!! This is the “ego” of Mr. Roach at work.
    As to making sacrifices if you wish to become a Canadian and this is one of many, Mr. Creamer is absolutely right. The sacrifices include usurping indigenous land and resources if you come early and the shade of your skin is not too dark, and working this land and those resources for the same people who usurped it if you come late and regardless of your sking colour, but specially if your skin colour is dark enough.
    As for Treemaine Lea, she would also do Mr. Roach a favour by appearing in court, as she/he would certainly endear the judges given her/his accurate and legal understanding of who is a Canadian and who is not which would clearly indicate the superfluousness of swearing allegiance to the queen when it comes to knowing the duties of a “true” and “non-foreign” citizen of this country.
    Finally, i suggest that we don’t scrap the oath, but replace it with the following:
    Long live our Queen who cares about every soul of her subjects despite the thousands of miles of oceans and the millions of dollars worth of fences and gardens and palace walls that separate her from them.

  6. OMER says:

    I did pledge allegiance! I take my pledge very seriously, as it was the law of the land when I committed myself to obseve it. However, the question that had been lingering in my mind ever since I pledged that allegiance was a “WHAT IF” scenario!

    What if, God forbids, Her Majesty The Queen as Commander-In-Chief of the British Army authorized the invasion of Canada!! Where does the class who pledged the allegiance stand; as opposed to the comparative group of fellow citizens who were not required to pledge, including my 3 kids?!

    In my layperson opinion, I submit that the only recourse the learned class has is to hide some place, and secretly persuade their kids to go defend their country, Canada, that is! Simply, because if they choose to fight on the side of Canada, they will be in breach of their pledge of allegiance to her Majesty the Queen and if they fight on the side of Her Majesty the Queen, they can easily be charged with treason and imprisoned for life!!

    I hope the readers can visualize the dangers of creating more than one CLASS of citizenship and the perils emboddied in the extreme example used for illustration!!

  7. Bill says:

    An oath to a foreigner is long out of date. We need a passport to get to England. The new should have an oath to Canadians and Canada, the place we believe in and know.

    Most politicians even would not be able to explain the difference between crown/public/government land. Terms used interchangedly in terms of forest tenure. Let’s end the facade and do some straight talking here.

    Fusty old British stuff belongs in Britain. Perhaps if our pols could understand what they are talking about, the level of debate in Parliament would increase. Now MPs and MLAs are just pawns on a chessboard the PM or premier moves around at will. We need to Canadianize more of our government.

  8. Why would anyone in their right mind bear allegiance to another person holding an office she inherited and did nothing to earn except be born into a historical family. Monarchs were mostly dictators and parasites at best who lived off the life blood of their subjects.

    Would it not be far more conscious to pledge allegiance to the highest principle of loving awareness and align with the true sources of all of creativity instead of pledging allegiance to a corruptible human being.

    Remember that swearing allegiance to the queen is swearing to who she represents; allegiance to the oligarchs of the Temple Crown on Fleet Street and the Bank of England that hold the ruling powers of the fiat fractional banking system that is designed with great greed and unsustainability as we are witnessing in today’s economic melt down.

    I pledge allegiance to the highest consciousness in loving, to a free state, in creativity and in our humanity as a people self governing by the people for the people and not acquiescing our freedoms and powers of money creation to the corrupt oligarchs via the monarch and her governor general.

    Thus KARMA is spelled STUPID.

    Stupid is as stupid does… and we have acted stupid for centurys.

    Cut out the sentimental monarchy/oligarchical middle man and as a true independent nation we will thrive beyond belief.

    Is it not time to wake up and move towards our true destiny of freedom and sharing our great wealth with all of our people and stop worshiping the false idols of fabricated elitism nurtured by the British or rather Brutish Empire.

    We need to act like Gandhi who led the Salt March to free his people from the clutches of the British Empire through Satyagraha, truth through action and non-violence.

    If the queen cared, truly cared for her people she would expose the criminal cabal that she works for. But hey she’s getting billions in perks for her and her family to live above us. It is more than disgusting to hear that it is the law to pledge allegiance to this form of ancient tyranny so cleverly cloaked with nauseating velvet over an iron fist.

    We are not an independent nation nor is the Crown merely ceremonial it is the other way around, our parliament is ceremonial, the GG, the Queen and the Bank of England, the Anglo, Dutch Financiers who really run this country.

    Wake up Canada you have not yet declared your independence.

  9. Gerry Laarakker says:

    When I became a Canadian Citizen I had my fingers crossed behind my back during the oath. Does that let me off the hook?

  10. John says:

    I don’t wish to engage in personal attacks on anyone. Least of all the British Monarch who should be accorded the respect her office merits as a representative of her people. However, I respectfully suggest that the time has come for Canadians to have an oath of allegiance to their own country.

    “I swear (or affirm) that I will be faithful and bear true allegiance to the nation of Canada, that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.”

  11. mark says:

    Stephen Harper’s new Conservative Party of Canada is the only major federal political party in the country today that has upholding the “constitutional monarchy”


  12. Daniel says:

    I think most people debating this issue would benefit from understanding that the Queen of Canada is just that. She is not a foreigner but could be better compared to as a non-resident citizen of Canada. One must remember that the Queen of England (U.K.) is not the Queen of Canada, it just happens that the same person holds both positions.

    When someone seeking citizenship swears allegiance to the Queen they are in fact confirming their allegiance to Canada, as she represents our nation as the Head of State.

    Similarly I disagree entirely that those seeking citizenship in Canada should have any say in what constitutes the requirements for citizenship.

    Born-citizens need not declare their allegiance as it is in theory already confirmed by nature of being born in Canada, which Queen Elizabeth is the head. Which

    Also I think an argument that Canada would magically become a different nation and be better off without the Monarchy seems to be quite ill though out, and baseless in most logical thought progressions. The only point that the Queen ‘may’ use her power would be in times of extreme political emergency and instability.

  13. Simon Coakeley says:

    I tend to agree with Daniel: the Queen to whom we pledge allegiance is the Queen of Canada, not the Queen of England. However, while it may be a question of hats–or crowns–the fact remains that only one head wears them so pushing the distinction too far can be almost as disingenuous as deliberately ignoring the disctinction.

    Having been born in the UK I notionally owe allegiance to the Queen of England; having become a Canadian citizen, I have sworn allegiance to the Queen of Canada. This doesn’t trouble me, although I can easily conceive that it could be otherwise and that the Queen of Canada could be replaced by a President. The challenge though is to devise a way of selecting a President that would preserve the good things about our current constitutional construct.

    A full-fledged Head of State appointed on the whim of the current sitting Prime Minister might be seen to be beholden to the Prime Minister if a crisis were to develop in Parliament. An elected President–even if it is clear the role grants no more authority than a Queen (or King) would have–may feel that s/he has a more robust “mandate” to keep an eye on and limit the actions of nefarious politicians than would any Governor General representing the Monarch. Apparently German Presidents have exercised their power to refuse to approve legislation recently; in Canada, the UK and other countries over which Elizabeth II “reigns”, I suspect things would have to have come to a pretty pass before the words “La Reyne s’avisera” could be uttered without jeopardising the institution of the monarchy.

    Could we find a replacement for the Queen of Canada? Of course we could; we would need to look to countries that have somewhat similar parliamentary systems and a President (Ireland, Germany, Israel come to mind). Have we figured out all of the ramifications, though? Even less than the ramifications of an elected Senate!

  14. stella says:

    hey you all seem to know so much about this immigration process.learning a lot from you all.and also the article was definitely fantastic

  15. Leon Oneil says:

    I will not swear allegiance to a King or Queen, nor to their successors. It eats away at the very heart of my basic freedoms. Alas I can not yet be a Canadian Citizen.

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