TORONTO – Ontario’s top court is set to grapple with whether forcing would-be Canadians to take an oath to the Queen, her heirs and successors is constitutional.
Three long-time permanent residents argue the citizenship requirement is discriminatory and violates their rights to free speech, a position the government rejects.
In fact, documents filed with the Ontario Court of Appeal, which is scheduled to hear the case on Tuesday, show Ottawa intends to fight any adverse decision.
“Should the result of this court’s ruling be to strike down the oath to the Queen, the (government) requests that the order be stayed pending its application for leave to the Supreme Court,” the attorney general of Canada states.
In September, Ontario Superior Court Justice Edward Morgan ruled the oath requirement is constitutional even if it does violate free-speech rights.
Ottawa is appealing that part of the ruling – it says Morgan was wrong to find any free-speech violation – while the trio of permanent residents is appealing his conclusion that the oath does not violate their religious or equality rights.
The Citizenship Act requires applicants for citizenship to swear or affirm they will be “faithful and bear true allegiance to Queen Elizabeth the Second, Queen of Canada, her heirs and successors.”
The permanent residents oppose the oath on religious or conscientious grounds. They say it should be optional, that pledging allegiance to Canada should be enough to become citizens.
“The oath requirement imposes a coercive burden on the appellants to express meaning and content to which they are fundamentally opposed,” they say in their Appeal Court filing.
The residents also note that people born in Canada or abroad to Canadian parents are automatically citizens and don’t have to make any pledge.
In his ruling, Morgan said the oath to the Queen is actually one made to a “domestic institution that represents egalitarian governance and the rule of law.”
The permanent residents argue that assessment was wrong.
“A plain reading of the oath to the Queen implies allegiance to Queen Elizabeth the Second as an individual, to her heirs, whether or not they ever become head of state, and to her successors, regardless of how despotic successors may be.”
For its part, the government maintains the three are in Canada voluntarily, and their religious and political views – even if anti-monarchy – enjoy constitutional protection.
The Queen, Ottawa argues, is at the top of Canada’s constitutional order and therefore represents the right to dissent.
“Each of the appellants objects to taking the oath because of their subjective belief that the Queen, Canada’s constitutional head of state, is a symbol of tyranny, colonial oppression, racial prejudice and similar attributes,” the government says in its factum.
“The court below found that these views were mistaken and were based on a misinterpretation of the meaning of the oath to the Queen.”
One of the applicants, Michael McAteer, who immigrated almost 50 years ago, has said his father was persecuted in Ireland for supporting Irish independence and swearing allegiance to the Queen would violate his conscience and betray his republican heritage.
Jamaican-born Simone Topey, a Rastafarian who regards the Queen as the “head of Babylon,” and Israeli Dror Bar-Natan, are the other applicants.
In siding with the government, Morgan called the residents’ interpretation of the oath somewhat extreme and showed a misunderstanding of its purpose.