Three permanent residents in Canada recently challenged the requirement to swear an oath to the Queen in order to obtain citizenship, claiming that it violated their Charter rights to free expression and religion, and that it discriminated against people of other national origins. A very similar case has, in fact, already been heard in federal court in 1994 in Roach v. Canada, where all of these claims were struck down.
Challenging Canadian citizenship laws should be done through Parliament, rather than the courts. The dispute is a political one: the appellants are, in effect, disagreeing with Canada’s political structure as a constitutional monarchy. The Head of State is the Queen, and the law requiring the oath is a statute which has been passed by Parliament (and can thus also be repealed by Parliament). However, the appellants clearly have much broader concerns and would feel stymied by any interaction with the Crown. They must certainly feel wronged by living in a country in which the Monarch’s representative must assent to all laws passed by Parliament. It is spelled out in the Constitution that the Governor General declares:
[…] according to his Discretion […] either that he assents thereto in the Queen’s name, or that he withholds the Queen’s Assent, or that he reserves the Bill for the signification of the Queen’s Pleasure.
All provincial laws must also be granted assent by the Queen’s provincial representatives, the Lieutenant Governors.
Surely, the applicants in this case must be offended merely by being physically present in Canada. By setting foot in the country, these individuals have consented to be bound by the laws of the land. And, ironically, all laws of the land are scrutinized, albeit symbolically, by the Crown. Section 17 of the Constitution states that “there shall be one Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.” Section 9 declares that the executive power is “vested in the Queen.” The Queen is the Commander in Chief of the Armed Forces. Section 91, an important clause granting powers to the federal government, begins:
It shall be lawful by the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada
The applicants are more than welcome to rally for constitutional change. Modifying the relationship of the Crown in Canada is not something that can be properly implemented through the courts. The courts, while possessing broad powers to nullify laws, cannot nullify the Constitution. For matters which affect the office of the Queen, Governor General, or Lieutenant Governors, resolutions must be passed in all provincial legislatures and both houses of the federal Parliament.
The citizenship oath has also been challenged on the grounds that it is discriminatory: the applicants allege that persons born in Canada are automatically Canadian citizens, and that the oath is an “additional burden” on those born outside of Canada. The majority in the federal court case noted that:
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.
The majority also stated that to consider the exemption a “coercive burden” would be akin to trivializing the Charter.
Additionally, it is incorrect to claim that swearing an oath of allegiance to the Queen would prevent an individual from engaging in political activities. The Constitution allows the office of the Queen or her representatives to be modified. There is thus a legitimate constitutional method to modify or abolish the relationship between Canada and the Crown. The majority in the Roach case found that:
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.
Advocating for such change, the judge stated, would be constitutionally protected and would not violate the oath to the Queen. Taking the oath in no way prevents individuals from advocating for the abolition of the monarchy, so long as the method is not violent or revolutionary.
Becoming a Canadian citizen is a privilege, not a right, and it comes with rules and responsibilities. If the appellants are insulted by the oath and Canada’s constitutional monarchy, there is nothing forcing them to stay here.