By TOM GODFREY
The late lawyer and civil rights activist, Charles Roach, would be disappointed.
After months of deliberations, Ontario has ruled that permanent residents will have to swear allegiance to the Queen before they can become citizens.
The legal challenge that Roach began 12 years ago was carried on by Toronto residents Michael McAteer, Simone Topey and Dror Bar-Natan, who also questioned the constitutional validity of the Oath or Affirmation of Citizenship.
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.
“The appellants’ arguments are based on a literal ‘plain meaning’ interpretation of the oath to the Queen in her personal capacity,” the Court of Appeal for Ontario said in a decision last week. “The reference to the Queen is symbolic of our form of government and the unwritten constitutional principle of democracy.”
The August 13 ruling to dismiss the challenge was endorsed by three judges of the court.
“I hold that the purpose of the oath is not to compel expression but to obtain a commitment to our form of government from those wishing to become Canadian citizens,” the judges wrote.
Roach, who passed away in October 2012, 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”.
“They (appellants) claim 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,” the judges said.
“They further submit that the oath is antithetical to minorities’ identities and rights and is a divisive message forced into the mouths of those wishing to become Canadians,” they said in their decision.
“The appellants argue that the Queen is a symbol of hereditary privilege that connotes British ethnic dominance in Canada and is antithetical to minorities’ rights,” the decision said.
The judges disagreed stating objections to the oath are borne out of their insistence on a “plain-meaning” interpretation that is divorced from Canada’s history and evolution as a nation.
“Viewing the oath to the Queen as an oath to an individual is disconnected from the reality of the Queen’s role in Canada today,” said the judges. “During the heyday of the Empire, British constitutional theory saw the Crown as indivisible.”
Peter Rosenthal, the lead Toronto lawyer representing the group, said he would recommend his clients seek leave to appeal their case to the Supreme Court of Canada.
“I wish Charley Roach was here to join me in continuing the fight,” Rosenthal told Share. “Of course it is disappointing. But I think the Supreme Court will see it very differently.”
Roach spent his own money and a decade trying to remove reference of the Queen in the Oath.
In 1992, he launched an unsuccessful Charter challenge of the Oath in the Federal Court of Canada.
Roach started a similar case in Ontario’s Superior Court in 2007. The Attorney General of Canada argued the 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 the Charter of Rights jurisprudence in the past 20 years, the case could go ahead.
The case is proceeding with McAteer, a retired Toronto Star journalist; Topey, a Rastafarian and member of the Black Action Defense Committee and Bar-Natan, a Math Professor at the University of Toronto.
Bar-Natan, in an affidavit, said the “monarchy is a symbol of inequality”. He called the Oath a relic of times bygone where “peasants were peasants and slaves were slaves, indefinitely”.
McAteer objected to the Oath because his father fought in the Irish civil war for independence from Britain.