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T-460-91
Charles C. Roach (PlaintiffslAppellant) v.
The Minister of State for Multiculturalism and Citizenship (DefendantlRespondent)
INDEXED AS.' ROACH V. CANADA (MINISTER OF STATE FOR MULTICULTURALISM AND CULTURE) (TD.)
Trial Division, Joyal J.—Toronto, November 18, 1991; Ottawa, January 21, 1992.
Citizenship — Appeal from decision striking statement of claim for failure to disclose reasonable cause of action — Action for declaration oath or affirmation of allegiance to Queen prescribed in Citizenship Act, s. 24 unconstitutional as violation of Charter guaranteed rights — Queen as Head of State integral part of Constitution — Citizenship Act enacted pursuant to Parliament's exclusive authority to legislate as to Naturalization and Aliens under Constitution Act, 1867, s. 91(25) — Proper for Parliament to require that citizenship applicants swear or affirm loyalty to Head of State — Laws reflecting religious tradition, culture and values still secular or positivistic in nature — To grant exemptions claimed by appel lant would permit imposition of private beliefs on laws of gen eral application contrary to principles of secular state — Appeal dismissed — Relief sought matter for Parliament or constitutional amendment.
Constitutional law — Charter of Rights — Citizenship Act, s. 24 requiring oath or affirmation of allegiance to Queen — Citizenship applicant's submission that oath violating Charter ss. 2(a),(b), 12, 15 and 27 — Queen's presence as Canada's Head of State integral part of Constitution — No part of Con stitution paramount over another — Oath of allegiance to Queen equivalent to oath of allegiance to Canada's Head of State — Proper to require that citizenship applicants swear or affirm loyalty to Head of State who legitimizes laws of Canada, which provide for peace, order and good government of citi zens —Arguments oath violation of freedom of religion (Queen head of Church to which applicant does not belong), and free dom of expression (in regard to republicanism) lacking legal or constitutional content — If against applicant's conscience to make oath to all but Supreme Being or to principles of truth, freedom, equality, justice and rule of law, Citizenship Act per mitting affirmation in alternative — As to rejection of notion Queen should be Head of State or that Canada should have Head of State, concept of Head of State reposing in Queen clearly established in Constitution, supreme law of land — To grant exemptions claimed by applicant would permit imposi-
tion of private beliefs on laws of general application contrary to principles of secular state.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 2(a),(b), 12, 15, 27.
Citizenship Act, R.S.C., 1985, c. C-29, s. 24.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 9, 17, 91(25).
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 41, 52(1) ,(2)(a).
Federal Court Rules, C.R.C., c. 663, R. 419.
CASES JUDICIALLY CONSIDERED APPLIED:
Reference re an Act to Amend the Education Act (1986), 53 O.R. (2d) 513; 25 D.L.R. (4th) 1; 13 O.A.C. 241 (C.A.); R. v. Eldorado Nuclear Ltd, [1983] 2 S.C.R. 551; (1983), 4 D.L.R. (4th) 193; 7 Admin. L.R. 195; 8 C.C.C. (3d) 449; 77 C.P.R. (2d) 1; 50 N.R. 120; 1 O.A.C. 243.
REFERRED TO:
O'Sullivan v. M.N.R., [1992] 1 F.C. 522; (1991), 91 DTC 5491 (T.D.).
AUTHORS CITED
Brun, Henri and Tremblay, Guy, Droit constitutionnel, 2e éd., Editions Yvon Blais Inc., Cowansville, 1990.
COUNSEL:
Christopher Black for plaintiff/appellant. Bonnie J. Boucher for defendant/respondent.
SOLICITORS:
Roach, Schwartz & Associates, Toronto, for plaintiff/appellant.
Deputy Attorney General of Canada for defendant/respondent.
The following are the reasons for judgment ren dered in English by
JOYAL J.:
BACKGROUND
The appellant filed an action for a declaratory judgment with this Court on February 22, 1991. He claimed that he was entitled to a grant of citizenship without having to take the oath of citizenship in its present form which is:
I swear (or affirm) that I will be faithful and bear true allegi ance 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 appellant's claim is that the citizenship oath in its present form violates certain rights and fundamen tal freedoms guaranteed under the Canadian Charter of Rights and Freedoms [being Part I of the Constitu tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. He believes that the citizenship oath violates his free doms under paragraphs 2(a), 2(b) as it is against his conscience to make oaths to all but the Supreme Being and to principles of truth, freedom, equality, justice and the rule of law. He further states that tak ing the oath would have the effect of hindering his freedom to express his sentiments in regards to republicanism. Finally, he argues that the oath vio lates his freedom of religion under paragraph 2(a) inasmuch as Her Majesty the Queen is head of the Anglican Church and he is not of that faith.
The appellant makes the further arguments that compelling him to take the oath as a prerequisite to
citizenship amounts to a violation of his section 12 right against cruel and unusual punishment.
The appellant claims that section 15 guaranteeing equality before and under the law is infringed inas much as the Citizenship Act [R.S.C., 1985, c. C-29] creates a distinction between native-born Canadians and naturalized citizens. Furthermore, he states that the requirements of the Citizenship Act are also in violation of section 15 in that it sets a class of human beings, namely the Royal Family or the House of Windsor apart from others.
Finally, the appellant argues that the Act is con trary to the spirit of section 27 of the Charter, which provides that the Charter shall be interpreted in a manner consistent with the preservation and enhance ment of the multicultural heritage of Canadians.
The Prothonotary, without giving reasons, struck out the statement of claim pursuant to Rule 419 of the Federal Court Rules [C.R.C., c. 663] on the ground that it disclosed no reasonable cause of action.
The appellant appeals this decision to this Court.
FINDINGS
The' Canadian Charter of Rights and Freedoms was made part of the Constitution of Canada by vir tue of paragraph (2)(a) of section 52 of the Constitu tion Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], as were the pre-existing British North America Acts, 1867 to 1975 (renamed as Constitution Acts, 1867 to 1975 by the Schedule) by virtue of paragraph (2)(b) of section 52. As a result, it is all of these Acts that are proclaimed to be part of the Constitution of Canada. Subsection 52(1) in turn qualifies this Con stitution as the "supreme law of Canada" (see Refer ence re an Act to Amend the Education Act (1986), 53 O.R. (2d) 513 (C.A.), at pages 565-566).
The essence of the appellant's claim is that the oath as prescribed in the Citizenship Act is unconsti tutional as it violates the various rights and freedoms
as guaranteed in the several sections to which I have already referred.
Canada can be called a constitutional monarchy in the sense that its Head of State, i.e. the Queen, is a person chosen along hereditary lines. However, since 1926 there exists a king or queen of Canada, distinct at law from the British Monarch and there is now a distinction between the king or queen of Great Brit- ain and the king or queen as Head of State for Canada (see Brun, H. and Tremblay, G., Droit consti- tutionnel, 2nd ed., Les éditions Blais Inc., at pages 340-342).
The Queen's presence as Canada's Head of State is an integral part of our Constitution as evidenced by sections 9 and 17 of Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]] and sec tion 41 of the Constitution Act, 1982:
III. EXECUTIVE POWER
9. The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.
IV. LEGISLATIVE POWER
17. There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.
41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:
(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;
As was stated in Reference re an Act to Amend the Education Act, supra [at page 5661:
No part of the Constitution is made, by virtue of s. 52, para mount over any other. Each provision which is part of the Con stitution of Canada, must be read in light of the other provi sions, unless otherwise specified.
In the Canadian context the Queen is equivalent to "State" and "Crown" as evidenced by this passage by Dickson J. [as he then was] in R v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551, at page 562:
In Canada, the head of state is Her Majesty the Queen, the reigning monarch of the United Kingdom. By providing that "no enactment is binding on Her Majesty ... except only as therein mentioned or referred to", Parliament has put the state, commonly referred to as the Crown, beyond the reach of Acts of Parliament....
Where the Citizenship Act requires that a person take an oath of citizenship to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, it is requiring an oath to this coun- try's Head of State. Subsection 91(25) of the Consti tution Act, 1867 confers upon Parliament the exclu sive authority to legislate with respect to Naturalization and Aliens and the Citizenship Act might be said to be legislation under this authority.
It is, in my view, quite proper for Parliament to require of persons wishing to become Canadian citi zens that they swear or affirm their loyalty to our Head of State. That the Head of State should be found in the person of Her Majesty the Queen might be a matter for debate but it is nevertheless as much of a part of our constitutional framework as are the provisions of the Charter. Furthermore, the personi fied symbol of Her Majesty the Queen as Head of State is not, in terms of our long constitutional heri tage, a latter-day invention of some imaginative or manipulative spinner of tales but the result of con stantly evolving constitutional principles which are cloaked in constitutional conventions in the United Kingdom and partly codified, in Canada, in the Con stitution Act, 1982.
The Head of State, as Her Majesty is so defined, is the very embodiment of the freedoms and liberties which the appellant has inherited and which he now enjoys. In a legal sense, the Head of State legitimizes the laws of Canada which in concrete terms, provide for the peace, the order and the good government of its citizens.
Constitutionally speaking, Canada's Head of State could be a Muslim or an Atheist; the Head of State could be someone picked at random from a 6/49 kind of lottery. The Head of State could conceivably be anyone or anything. One recalls that the Goddess of Reason was so anointed in the course of the French Revolution.
In that sense, the argument raised by the appellant that Canada's Head of State is the Queen, when he speaks of republicanism, that she is Anglican, when he professes some other faith, is evidence to me of a dialectic which is bereft of any legal or constitutional content. Similarly, if the appellant feels that it is against his conscience to make oaths to all but the Supreme Being or to principles of truth, freedom, equality, justice and the rule of law, the statute does not impose an oath of allegiance. Indeed, out of respect for individual consciences an affirmation of allegiance will do as well. I fail to see where such an obligation could conceivably run counter to para graph 2(a) of the Charter.
The same applies to the appellant's other pleas for exemption, namely that he rejects the notion that the Queen should be Head of State or that Canada should have a Head of State at all. The concept, however, of the Head of State reposing in the person of the Queen, is clearly established in the Constitution and is part of the supreme law of the land. It is the same law which, on a balance of values in our society, guarantees to the appellant the right to pursue his greater happiness through advocating or pushing for some other form of constitutional structure.
The appellant must he aware that Canada is a secu lar state and although many of its laws reflect relig ious tradition, culture and values, they are nonethe less secular or positivistic in nature. To grant exemptions of the kind claimed by the appellant would be to permit the imposition of private beliefs, religious or otherwise, on laws of general application, a condition which would be in contradiction with the principles of a secular state. I should refer in this respect to the seminal reasons for judgment of my colleague Muldoon J. in O'Sullivan v. M.N.R., [1992] l F.C. 522 which deals with other claims for exemp-
tion and in which the true secular basis of Canada's Constitution is reviewed at length.
The appellant of course, is perfectly free to push, in Parliament, for the elimination of the oath of allegiance, or for a change in its wording, or to advo cate other changes more in keeping with his beliefs. I should only wish to stress that the statutory provision for an oath or affirmation of allegiance in section 24 of the Citizenship Act cannot, in my view, be chal lenged under Charter grounds. It seems clear to me, on the strength of the Ontario Court of Appeal's deci sion in the Reference re an Act to Amend the Educa tion Act (supra) that the relief sought is a matter for Parliament or for constitutional amendment in accor dance with the amendment formula set out in section 41 of the Constitution Act, 1982.
CONCLUSION
In conclusion, the learned Associate Senior Pro- thonotary was right in striking the appellant's claim and the appeal is accordingly dismissed, with costs.
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