Huffington Post Canada

Oath to Queen is a political question, not a legal one

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is the Queen, and the law requiring the oath is a statute which has been passed by Parliament (and can thus also be repealed by Parliament).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.

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Guelph Mercury

Should Canada be at ease with its judicial activism?

The Canadian Constitution, the supreme law of the land, allows judges to invalidate laws that are unconstitutional.

Constitutionality rulings can be thorny, as they often involve significant value judgements that pit constitutional rights against the objectives of legislatures. For example, earlier this summer a British Columbia judge gave permission for a terminally ill woman to commit suicide with the assistance of a physician. The case is currently on appeal to the B.C. Court of Appeal.

Assisted suicide is a criminal offence and physicians are deterred from providing it by current law. Justice Lynn Smith, in her ruling on the constitutionality of the prohibition on physician-assisted suicide, noted Canadians travel to Switzerland for assisted suicide at high cost and possible risk of criminal prosecution for relatives.

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Guelph Mercury

Supreme Court ruling on wiretapping could have gone further

The Supreme Court of Canada recently released a landmark ruling in Regina-versus-Tse that strikes down the constitutionality of a section of the Criminal Code that allows police to intercept private communications in exceptional circumstances.

The court — ruling on a 2006 British Columbia drug-related kidnapping case — was unanimous in its decision, and the reasons were authored by Prime Minister Stephen Harper’s two recent appointees. This case is interesting, since one of these appointees, Justice Michael Moldaver, sided with the Crown more often than his peers while sitting on the Ontario Court of Appeal.

The contested part of the Criminal Code allows police to intercept private communications without prior authorization by a judge if the officer believes on reasonable grounds that the interception is required immediately to “prevent an unlawful act that would cause serious harm.”

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