In February last year, we considered the application of the UK Succession to the Crown Bill 2013  to Canada through Bill C-53, which had been introduced into the Canadian House of Commons and which now forms the Canadian Succession to the Throne Act, 2013. Sensitivity to the role of the Monarch in Canada is evident inter alia from challenges in the courts to the 2013 Act, here and here, and in the more recent case McAteer v. Canada (Attorney General), 2014 ONCA 578 in which four individuals challenged the Oath of Allegiance from different perspectives.
Permanent residents of Canada over 14 years old who wish to become Canadian citizens are required to swear an oath or make an affirmation. Subject to limited discretionary exceptions, a certificate of citizenship issued by the Minister of Citizenship and Immigration does not become effective until the oath is taken, as follows:
“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”
The appellants objected to the italicized part of the citizenship oath on a number of grounds:
- Mr Charles Roach, a committed republican, believed that to swear fealty to a hereditary monarch would violate his belief in the equality of human beings and his opposition to racial hierarchies. He initiated the present application, but had died in October 2012.
- Mr Michael McAteer, also a committed republican, deposed that “taking an oath of allegiance to a hereditary monarch who lives abroad would violate [his] conscience, be a betrayal of [his] republican heritage and impede [his] activities in support of ending the monarchy in Canada.” He further deposed that taking an oath to the Queen perpetuates a class system and is anachronistic, discriminatory and not in keeping with his beliefs of egalitarianism and democracy.
- Mr Dror Bar-Natan similarly stated that the oath would violate his conscience because it is a symbol of a class system.
- Ms Simone Topey, by contrast, is a Rastafarian who regards the Queen as the head of “Babylon”: degenerate Western society that is in opposition to “Zion”. She deposed that it would violate her religious beliefs to take any kind of oath to the Queen. She further deposed that if she took the oath she would feel bound to refrain from participating in anti-monarchist movements.
- Mr Howard Gomberg, a former plaintiff in these proceedings, had given evidence that taking an oath to any human being is contrary to his conception of Judaism.
Dismissing the appeal and allowing the cross-appeal, Ontario Court of Appeal Justice Karen Weiler held as follows:
- “The appellants’ arguments are based on a literal “plain meaning” interpretation of the oath to the Queen in her personal capacity. Adopting the purposive approach to interpretation mandated by the Supreme Court of Canada leads to the conclusion that their interpretation is incorrect because it is inconsistent with the history, purpose and intention behind the oath. The oath in the Act is remarkably similar to the oath required of members of the Commons and the Senate under The Constitution Act, 1867. In that oath, the reference to the Queen is symbolic of the Canadian form of government and the unwritten constitutional principle of democracy. The harmonization principle of interpretation leads to the conclusion that the oath in the Act should be given the same meaning” [para 6].
- “The appellants’ incorrect interpretation of the meaning of the oath cannot be used as the basis for a finding of unconstitutionality. The approach to analyzing claims under s. 2(b) was set out by the Supreme Court in Irwin Toy Ltd. v. Quebec (Attorney General),  1 S.C.R. 927, and requires the court to determine: 1) whether what is in issue is expression; 2) whether the purpose is to compel expression; and 3) whether there is an effect on expression that warrants constitutional disapprobation. Applying this approach, there is no issue that the oath is expression. I hold that the purpose of the oath is not to compel expression but to obtain a commitment to our form of government from those wishing to become Canadian citizens. Although the oath has an effect on the appellants’ freedom of expression, constitutional disapprobation is not warranted. Thus, there is no violation of the appellants’ freedom of expression. In the alternative, if there is a violation or the appellants’ right to freedom of expression, it is justified under s. 1 of the Charter.There is no violation of the appellants’ right to freedom of religion and freedom of conscience because the oath is secular and is not an oath to the Queen in her personal capacity but to our form of government of which the Queen is a symbol. Nor is the oath a violation of the appellants’ equality rights when the correct approach to statutory interpretation is applied” [para 7].
The issues raised by the parties on this appeal were:
- whether the oath violates freedom of expression, freedom of conscience or religion or the right to equality under sections 2(b), 2(a) and 15(1) of the Charter of Rights and Freedoms; and
- if it did violate the Charter, were these saved under section 1?
With regard to religious freedom, the court noted that the oath dated back to
“… the historical compromise of the Quebec Act … [1774 14 Geo III c 83] in which the British Crown introduced a secular oath to the Queen to secure the loyalty of the French Canadians by recognizing their freedom to practise their religion. The intent behind the introduction of a secular oath was to create a religious-neutral way of permitting individuals to become citizens. In so doing, the new oath permitted French Canadians to vote and participate in public life in a way that was previously precluded because of the religious nature of the oath that had existed until that time” [para 103].
In Roach v. Canada ( Minister of State for Multiculturalism and Citizenship) ( C.A.)  2 F.C. 406 Linden JA stated that:
“Parliament’s purpose in framing the oath or affirmation was to require a statement of loyalty to Canada’s head of state and its institutions, not to interfere with religious freedom. There is no mention in our Constitution nor in this oath of the Queen in her capacity as Head of the Church of England. The oath requires no statement of allegiance to Anglicanism nor to the Queen in relation to her role in the Church of England. Indeed, the Anglican Church of Canada is governed, not by the Queen, but by an independent Synod established in Canada. Therefore, the purpose of the oath or affirmation is not to interfere with the guarantee of freedom of religion, because its purpose was not in any way to insist upon loyalty to the Anglican Church”.
Summarizing the position in the instant case, Weiler JA held that:
“Purposively interpreted, the oath exemplifies the very principle s. 2(a) of the Charter was intended to foster. This conclusion is equally applicable to both the appellants’ freedom of religion claims and their freedom of conscience claims [para 119].
The oath to the Queen of Canada does not violate the appellants’ right to freedom of religion and freedom of conscience because it is secular; it is not an oath to the Queen as an individual but to our form of government of which the Queen is a symbol” [para 120].
She noted that a Charter challenge to the religious requirements for the office of the Queen [ie Queen of Canada] was scheduled to be argued before the court in August 2014:
“However, as this issue was not addressed in the case before us, I will limit my s. 2(a) (and s. 15) analysis on this aspect of the appellants’ argument to examining whether the religious requirement for the office of the Queen renders the reference to the Queen in the oath unconstitutional” [para 107].
Which was, of course, entirely right and proper – and we await the outcome of the further case on the “religious requirements for the office of the Queen” with something approaching baited breath. But as we do so, we bear in mind that in Teskey v. Canada (Attorney General), 2013 ONSC 5046 Hackland RSJ was
“… in respectful agreement with this court’s decision in O’Donohue, affirmed by the Court of Appeal which held that the rules of succession and the requirement that they be the same as those of Great Britain, are necessary to the proper functioning of our constitutional monarchy and, therefore, the rules are not subject to Charter scrutiny and are not justiciable in the sense that they are beyond the review jurisdiction of this court” [para 15].
In short, in Canada there does not appear to be a human right to be Queen… yet.
 As it then was. Royal Assent, 25 April 2013.