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Constitutional challenge to remove the Oath to Monarchy from the Canadian Citizenship Act

McAteer et al. v. AGC - The decision in the long-standing Charter challenge to the requirement of taking an oath of allegiance to the Queen in order to obtain Canadian citizenship was rendered by the Court of Appeal for Ontario on Wednesday August 13, 2014 C57775 - McAteer v. Canada (Attorney General) 2014 ONCA 578. The Court of Appeal dismissed the Appeal and granted the Crown's Cross-Appeal.

The Appellants, Michael McAteer, Simone Topey and Dror Bar-Natan, questioned the constitutional validity of the Oath or Affirmation of Citizenship prescribed by section 24 of the Citizenship Act R. S.C. 1985, c.C-29 and the regulations made pursuant thereto at the Court of Appeal for Ontario on a date and time to be announced. The part of the oath at issue reads: 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 fulfill my duties as a Canadian citizen.

The Citizenship Act requires applicants for citizenship to swear or affirm that they will bear true allegiance to Queen Elizabeth the Second and her Heirs and Successors. Many people who feel that the monarchy is an anti-democratic relic of the past conscientiously object to taking such an oath and feel that it should suffice to take an oath to Canada.

Twenty years ago, the late civil rights lawyer Charles Roach launched a Charter challenge to this oath in the Federal Court; he lost. In 2005, Mr. Roach started a similar case in Ontario's Superior Court. The Attorney General of Canada argued that this case should not be heard because of the earlier dismissal by the Federal Court. However, it was ruled that, as a result of changes in Charter jurisprudence in the past twenty years, the case could go ahead.

Mr. Roach died on October 2, 2012. The case is now proceeding on behalf of three new applicants: Michael McAteer (retired former journalist for the Toronto Star), Simone Topey (of the Black Action Defence Committee) and Dror Bar-Natan (Professor of Mathematics at the University of Toronto). They are appealing the dismissal of their application by the Superior Court of Justice.

For reasons of conscience and/or religion, the applicants feel that they cannot take the oath. They are arguing that the oath requirement violates their rights to freedom of religion and conscience pursuant to section 2(a) of the Charter, their right to freedom of expression provided by section 2(b) of the Charter, and their equality rights guaranteed by section 15(1) of the Charter. The Attorney General of Canada maintains that "The inability to enjoy the benefits of citizenship - to hold a Canadian passport and to vote - are amongst the costs reasonably borne by individuals whose personal beliefs run counter to Canada's foundational heritage."

COURT OF APPEAL FOR ONTARIO DOCUMENTS

Notice of Appeal, October 17, 2013

Notice of Cross-Appeal, October 31, 2013

Appeal Book and Compendium, November 12, 2013

Appellant Factum, November 12, 2013

Respondent Attorney General Factum, January 2014

SUPERIOR COURT OF JUSTICE

September 20, 2013 decision in the Constitutional challenge of Citizenship Act (Superior Court) McAteer, Topey, Dror-Natan v. Canada (Attorney General) 2013 ONSC 5895 (ON S.C.).

See also, Colin Perkel, Required Oath to Queen for new Canadians constitutional, court rules, CP, September 20, 2013

BACKGROUND MATERIAL

Roach v. Canada (Attorney General), 2012 ONSC 3521 (CanLII)
Superior Court of Justice — Ontario
oath — motion — gomberg — proposed — relief

Roach v. Canada (Attorney General), 2009 CanLII 7178 (ON SC)
Superior Court of Justice — Ontario
class — oath — citizenship — allegiance — proceeding

Roach v. Canada, 2008 ONCA 124 (CanLII)
Court of Appeal for Ontario — Ontario
motion — straightforward — handling — officials — constitutional

Roach v. Canada (Secretary of State), 2007 CanLII 17373 (ON SC)
Superior Court of Justice — Ontario
swear allegiance — class — abuse of process — forum — constitutional

Roach v. Canada (Attorney General), 2007 CanLII 21594 (ON SC)

Roach v. Canada ( Minister of State for Multiculturalism and Citizenship ), 1994 CanLII 3453 (FCA)

The Lawyers for the Appellants are

Peter Rosenthal
Michael Smith
Selwyn Pieters
Reni Chang

Lawyers for The Attorney General of Canada is

Kristina Dragaitis