Why citizenship requires an oath to the Queen

We take far too much for granted in this country, and we ask far too little of our citizens. Now, three permanent residents are challenging the citizenship oath as violating their freedom of expression and their freedom of religion. They object to swearing an oath to the Queen and they want a court in Toronto to strike down the oath as unconstitutional.

Such objections to the citizenship oath are not only legally baseless but they also risk further diminishing the value of Canadian citizenship.

The Oath of Affirmation of Citizenship is not onerous. It requires those who wish to become Canadian citizens to take the final step of declaring allegiance to this country by publicly stating: “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.”

Challenges to the wording of the oath are not new. In 1994, the Federal Court rejected an almost identical challenge as the current one. Apparently, former prime minister Jean Chrétien seriously considered “modernizing” the oath during his tenure. Whether we should change the wording of the oath is a matter for political decision, not judicial declaration.

Simply put, swearing an oath to the Queen cannot be unconstitutional.

The current wording of the oath is entirely consistent with our Constitution. Canada is a constitutional democracy. This means that our Constitution provides the rules for how our democracy operates. Under our system of government “the Crown” legally holds all power. And the Crown also symbolizes the state itself. It represents Canada as an enduring state, not the political party in power. The Queen is our head of state, legally, constitutionally and symbolically.

Thus, in the proceedings before him last week, the judge hearing the challenge to the oath noted that the Queen is also a symbol of the Canadian political system and of the state itself (see the back of a loonie or of any Canadian coin).

Here is the basic problem with the constitutional challenge to the oath: in challenging the Queen, the applicants are challenging a central part of our Constitution.

Swearing an oath to the Queen of Canada is not a commitment of personal fidelity or friendship, but an acknowledgment and acceptance of our constitutional democracy.

The Supreme Court has clearly stated that you cannot use one part of the Constitution you like to strike down another part of the Constitution you do not like. The provisions of the Constitution must read consistently with each other.

Now, the applicants are not actually trying to have the Queen declared unconstitutional. But make no mistake about it, their legal challenge is an indirect attempt to do so. If the oath is unconstitutional, then so is all of our money, many stamps, numerous parks and streets and perhaps the City of Regina.

Swearing an oath to the Queen of Canada is not a commitment of personal fidelity or friendship, but an acknowledgment and acceptance of our constitutional democracy.

Canadians cannot opt out of laws that they don’t like. Swearing an oath to abide by the laws of the land means recognizing the Crown as the legitimate holder of legal power while also being able to challenge the Queen through the political process.

For nearly 150 years Canada has attracted immigrants from all over the world precisely because of our constitutional values and democratic institutions. Our Constitution speaks of “Peace, Order and Good Government.” I doubt many can identify this phrase, but I suspect many immigrants have been attracted to Canada by some combination of these ideas.

Our constitutional monarchy has been an essential part of why Canada has continued to work for nearly a century-and-a-half while other countries have been beset by civil war, violence and disintegration.

It is great that those challenging the oath feel so passionate about this issue. That is to be commended. In a Citizen op-ed on Saturday, Catherine McKenna implored Canadians to get involved in politics. Those challenging the oath should address their concerns through the political process and attempt to convince the government to change the oath.

My personal view is that we need more public declarations of our common Canadian values. Patriotism is the glue that helps keep countries together. Nationalism is the scourge that risks tearing them apart. We need more of the former to protect against the latter.

The issue isn’t why new citizens are required to swear an oath to the Queen, it’s why new immigrants and all Canadians don’t as well.

Adam Dodek is a founding member of the University of Ottawa’s Public Law Group and the author of The Canadian Constitution (Dundurn 2013).