Friday 13 March 2015

Swearing an oath to the Queen

In Canada, the United Kingdom and other commonwealth countries, swearing an Oath to the Queen is a common practice in some instances such as citizenship ceremonies. Applicants for citizenship over the age of 14 are required to give the Oath in citizenship ceremonies which is 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.”  unquote

Actually the Queen does not govern Canada or its citizens and others but many things are done in the name of the Queen.  For example, if anyone is charged with a criminal or quasi-criminal offence, the heading of the document says; Her Majesty the Queen v. John Blow or whatever.    

Why the Queen instead of Canada v. John Blow in Canadian criminal cases and The Province of Ontario v, John Blow in provincial offences cases?        
 The monarchy of Canada is the core of both Canada's federalism and its Westminster-style parliamentary democracy, being the foundation of the  executive, legislative and judicial branches of the federal  and  each provincial government.                                                                                          

The current Canadian monarch, since the 6th of February 1952, is Queen Elizabeth II. As the sovereign, she is the personal embodiment of the Crown in Canada. Although the person of the sovereign is equally shared with fifteen other independent countries within the Commonwealth of Nations, each country's monarchy is separate and legally distinct.

As a result, the current monarch is officially titled Queen of Canada and, in this capacity, she, her consort, and other members of the Royal Family undertake public and private functions domestically and abroad as representatives of the Canadian state. This does not mean that she speaks for Canada with respect to the manner in which the governments of Canada and the provinces run their affairs. However her acting on behalf of Canada is in the form of goodwill. If for example, Canada has a problem with another commonwealth nation, she will not speak to either one because it is not her role to act as an intermediator.

Most of the royal governmental and ceremonial duties in Canada are carried out by the Queen's representative, the governor general. In each of Canada's provinces, the monarch is represented by a lieutenant governor, while the territories are not sovereign and thus do not have a viceroy who governs. They are governed in provincial matters by their provincial leaders and in matters involving Canada, they are governed by the federal government.  

The Crown today primarily functions as a guarantor of continuous and stable governance and a nonpartisan safeguard against the abuse of power with the sovereign acting as a custodian of the Crown's democratic powers and a representation of the “power of the people above government and political parties.” Obviously, the citizens of Canada have the ultimate power because it is they who elect the leaders of Canada, the provinces and its territories. The Queen and the Governor General and the Lieutenant Governor Generals are figure heads and figure heads do not govern but they are listened to.

Michael McAteer, Simone E.A. Topey and Dror Bar-Natan objected to the following portion of the oath: “I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors.”

Quite frankly, it is not unlike being faithful to and bearing true allegiance to the Canadian flag. If the queen entered a room they were in, they would be expected to at least stand up as a sign of curtesy. Nothing more from them would be expected.

They claimed that it was a violation of their rights under ss. 2(a) (freedom of conscience and religion), 2(b) (freedom of expression), and 15(1) (equality) of the Charter of Rights and Freedoms. They argued that the government cannot justify any such violation as a reasonable limit in a free and democratic society under section 1. (which guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.) If successful, they wanted to get a court declaration making the impugned portion of the citizenship oath optional.

The appellants’ arguments were based on a literal “plain meaning” interpretation of the oath to the Queen in her personal capacity. Adopting  a positive approach to interpretation mandated by the Supreme Court of Canada, led to the conclusion that their interpretation was incorrect because it was inconsistent with the history, purpose and intention behind the oath. For this reason the appellants’ incorrect interpretation of the meaning of the oath could not be used as the basis for a finding of unconstitutionality.

The purpose of the oath is not to compel an 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 condemnation is not warranted. Thus, there is no violation of the appellants’ freedom of expression. For this reason, the oath doesn’t conflict with the edicts of Canada’s Charter of Rights and Freedoms.

There was 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.

Mr. Charles Roach, (who I once had on my TV show as a guest) who initiated the present application and passed away in October 2012, was a committed republican who 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. 

The appellant Mr. Michael McAteer is a committed republican who deposes 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. Similarly, the appellant Mr. Dror Bar-Natan states that the oath would violate his conscience because it is a symbol of a class system.

The appellant Ms. Simone Topey is a Rastafarian who regards the Queen as the head of Babylon. She deposed that it would violate her religious beliefs to take any kind of oath to the Queen. She further deposed that on account of the oath, she would feel bound to refrain from participating in anti-monarchist movements. The evidence of Mr. Howard Gomberg, a former plaintiff in those proceedings, is that taking an oath to any human being is contrary to his conception of Judaism.

I wouldn’t feed that kind of hogwash to pigs. It is so repugnant, even the pigs would turn away from the trough.

The appellants submit that the plain meaning of the words “Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors” expresses allegiance to the Queen as an individual. They claimed that the notion of personal fidelity to this foreign monarch is antiquated, undemocratic and elitist in that it perpetuates hereditary privilege and is contrary to their conception of equality. For similar reasons, they objected to pledging allegiance to the Queen’s heirs and successors, even if those successors prove to be benevolent rulers or never become head of state at all.

They further asserted that the requirement that the Queen whose religion is  Anglican makes the oath supportive of one religion to the exclusion of all others, and that they are constrained by their religious or conscientious beliefs from swearing an oath to any person or to a foreign monarch. They further submit that it is antithetical to minorities’ identities and rights and is a divisive message forced into the mouths of those wishing to become Canadians. The appellants also asserted that the oath is political belief discrimination under section 15 of the Charter (Every individual is equal before and under the law etc) and that it discriminates against them on account of their non-citizen status, place of national origin and religious beliefs. They also argued that the Queen is a symbol of hereditary privilege that connotes British ethnic dominance in Canada and is adverse to minorities’ rights.

WOW! Their hogwash is really filling up the pig’s trough.

As Canada developed as an independent federalist state, the conception of the Queen (commonly referred to as the Crown) evolved. Unlike the unitary role of the Crown at the height of the British Empire, its role in Canada is divided into three distinct roles. First, the Queen of Canada plays a legislative role in assenting to refusing assent to, or reserving bills of the provincial legislature or Parliament—a role that is performed entirely through the Governor General and the Lieutenant Governors. Second, the Queen of Canada is the head of executive authority pursuant to sections 9 and 12 of the Constitution Act, 1867. Third, the Queen of Canada is the personification of the State, i.e., with respect to Crown prerogatives and privileges. Further, the oath is a universal requirement that applies to everyone, without regard or reference to religion. 

The effect of granting a judicial exemption would be to undermine the societal value of a universal oath, such a remedy would be inconsistent with the intent of Parliament and would be an unacceptable intrusion into the legislative sphere. It would fundamentally change the nature of the legislation and would not be an appropriate remedy.

The oath to the Queen of Canada does not violate the anyone’s 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.

The decision of the Court of Appeal was that the appellants’ incorrect understanding of the meaning of the oath cannot be used as grounds for a finding of unconstitutionality. The court dismissed the three appellant’s appeal.

I feel that if an immigrant refuses to swear an oath to the Queen in a citizenship ceremony, they don’t deserve to be Canadian citizens in Canada. This doesn’t mean that they should be turfed from Canada. They can simply remain as residents of Canada. 

I would be less than honest if I didn't mention that I personally think that Canada should have a better oath of allegiance to swear to rather than the one we have. I would like to see it presented to those wishing to become Canadian citizens as follows;

"I swear that to become a Canadian citizen, I make this commitment that I will uphold the laws in Canada and respect all people in their diversity  and work towards the common well-being  of all  persons in Canada and I will owe my prime allegiance to Canada. above all other nations."  

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