McAteer et al. v. Canada (Attorney General)

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Weiler, Lauwers and Pardu, JJ.A.
• Citation: 2014 ONCA 578,(2014), 324 O.A.C. 163 (CA)
• Date: 08 April 2014

McAteer v. Can. (A.G.) (2014), 324 O.A.C. 163 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. AU.008

Michael McAteer, Simone E.A. Topey and Dror Bar-Natan (applicants/appellants/respondents by way of cross-appeal) v. The Attorney General of Canada (respondent/respondent/appellant by way of cross-appeal)

(C57775; 2014 ONCA 578)

Indexed As: McAteer et al. v. Canada (Attorney General)

Ontario Court of Appeal

Weiler, Lauwers and Pardu, JJ.A.

August 13, 2014.

Summary:

The applicants claimed that the requirement in the Citizenship Act (ss. 3(1)(c), 12(3) and 24) that they swear or affirm allegiance to the Queen in order to become a Canadian citizen was a violation of their rights to freedom of conscience and religion (Charter, s. 2(a)), freedom of expression (s. 2(b)) and equality (s. 15). They applied for declaratory relief under the Charter.

The Ontario Superior Court, in a decision reported [2013] O.T.C. Uned. 5895, dismissed the application. The court held that the oath to the Queen, as required by the Act, was a form of compelled speech that prima facie infringed the applicants' freedom of expression under s. 2(b) of the Charter. However, the oath was a reasonable limit on the right of expression and was therefore saved by s. 1. The oath was found not to violate either s. 2(a) or s. 15(1) of the Charter. The applicants appealed and the Attorney General of Canada cross-appealed.

The Ontario Court of Appeal held that the applicants' rights under ss. 2(a), 2(b) and 15(1) had not been violated. The court dismissed the applicants' appeal and allowed the Attorney General's cross-appeal.

Aliens - Topic 2528

Naturalization - Qualifications - Oath of citizenship - The applicants claimed that the requirement in the Citizenship Act (ss. 3(1)(c), 12(3) and 24) that they swear or affirm allegiance to the Queen in order to become a Canadian citizen was a violation of their rights to freedom of conscience and religion (Charter, s. 2(a)), freedom of expression (s. 2(b)) and equality (s. 15) - The Ontario Court of Appeal held that there was no violation of the applicants' rights under ss. 2(a), s. 2(b) or 15(1) - See paragraphs 63 to 129.

Aliens - Topic 2528

Naturalization - Qualifications - Oath of citizenship - The applicants claimed that the requirement in the Citizenship Act (ss. 3(1)(c), 12(3) and 24) that they swear or affirm allegiance to the Queen in order to become a Canadian citizen was a violation of their Charter rights - The Ontario Court of Appeal interpreted the meaning of the oath - In doing so, the court traced the history of the oath in detail - The court held that the reference to the Queen in the oath was not to the individual - The court concluded that "Although the Queen is a person, in swearing allegiance to the Queen of Canada, the would-be citizen is swearing allegiance to a symbol of our form of government in Canada. This fact is reinforced by the oath's reference to 'the Queen of Canada', instead of 'the Queen'. It is not an oath to a foreign sovereign. Similarly, in today's context, the reference in the oath to the Queen of Canada's 'heirs and successors' is a reference to the continuity of our form of government extending into the future" - See paragraphs 23 to 54.

Aliens - Topic 2528

Naturalization - Qualifications - Oath of citizenship - The Citizenship Act required persons who wanted to become Canadian citizens to swear an oath of allegiance to the Queen - The Ontario Court of Appeal interpreted the meaning of the oath - See paragraphs 23 to 62 - The court concluded "Applying a purposive and progressive approach to the wording of the oath, with regard to its history in Canada and the evolution of our country, leads to the conclusion that the oath is a symbolic commitment to be governed as a democratic constitutional monarchy unless and until democratically changed. Inasmuch as the oath to the Queen is a requirement in the Constitution for members of Parliament and is seen as an oath to our form of government, the harmonization principle supports the conclusion that the oath to the Queen in the Citizenship Act be given a consistent interpretation. This interpretation of the oath, as a symbolic commitment to our form of government and the unwritten constitutional principle of democracy, is supported by the legal norms of rationality and coherence" - See paragraph 62.

Civil Rights - Topic 395

Freedom of conscience and religion - Infringement of - Citizenship oath - The applicants claimed that the requirement in the Citizenship Act (ss. 3(1)(c), 12(3) and 24) that they swear or affirm allegiance to the Queen in order to become a Canadian citizen was a violation of their right to freedom of conscience and religion (Charter, s. 2(a)) - The applicants argued that their right to freedom of religion was violated by the requirement that they swear an oath of allegiance to the Queen of Canada - They further argued that the requirement that the Queen be Anglican made the oath supportive of one religion to the exclusion of all others - The Ontario Court of Appeal held that s. 2(a) was not violated - The court held that the oath to the Queen of Canada did not violate the applicants' right to freedom of religion and freedom of conscience because it was secular; it was not an oath to the Queen as an individual but to our form of government of which the Queen was a symbol - See paragraphs 103 to 120.

Civil Rights - Topic 395.3

Freedom of conscience and religion - Infringement of - Allegiance to the Queen - [See Civil Rights - Topic 395 ].

Civil Rights - Topic 1800

Freedom of speech or expression - General principles - General - The Ontario Court of Appeal stated that in analysing claims that the freedom of expression (Charter, s. 2(b)) had been violated the court had to consider whether the activity in which the plaintiff was being forced to engage was expression; whether the purpose of the law was aimed at controlling expression and if it was, a finding of a violation of s. 2(b) was automatic - If the purpose of the law was not to control expression, then in order to establish an infringement of a person's Charter right, the claimant had to show that the law had an adverse effect on expression - In addition, the claimant had to demonstrate that the meaning he or she wished to convey related to the purposes underlying the guarantee of free expression, such that the law warranted constitutional disapprobation - See paragraph 69.

Civil Rights - Topic 1846.1

Freedom of speech or expression - Limitations on - Allegiance to the Queen (incl. citizenship oath) - The applicants claimed that the requirement in the Citizenship Act (ss. 3(1)(c), 12(3) and 24) that they swear or affirm allegiance to the Queen in order to become a Canadian citizen was a violation of their right to freedom of expression (Charter, s. 2(b)) - The applicants claimed that the oath compelled them to convey a message with which they disagreed and it constrained their future expression by precluding them from working towards the abolition of the monarchy - The Ontario Court of Appeal held that the applicants' freedom of expression was not violated - The oath was an expression, but its purpose was not to control expression - While the oath had an incidental effect on expression in that it compelled prospective citizens to say the words of the oath to obtain citizenship status, that effect was not worthy of constitutional disapprobation - The court opined that even if the freedom of expression was violated, the violation was justified under s. 1 - See paragraphs 65 to 102.

Civil Rights - Topic 5671.2

Equality and protection of the law - Citizenship - Citizenship oath - The applicants claimed that the requirement in the Citizenship Act (ss. 3(1)(c), 12(3) and 24) that they swear or affirm allegiance to the Queen in order to become a Canadian citizen was a violation of their equality rights (Charter, s. 15) - The applicants argued that the oath to the Queen discriminated against them on the grounds of national origin, religion and the analogous ground of citizenship (i.e., on the basis of the applicants' status as non-citizens) - The Ontario Court of Appeal held that there was no violation of s. 15 - See paragraphs 121 to 129.

Civil Rights - Topic 8348

Charter - Application - Exceptions - Reasonable limits prescribed by law (s. 1) - The applicants claimed that the requirement in the Citizenship Act (ss. 3(1)(c), 12(3) and 24) that they swear or affirm allegiance to the Queen in order to become a Canadian citizen was a violation of their right to freedom of expression (Charter, s. 2(b)) - The Ontario Court of Appeal held that s. 2(b) was not violated - However, in the event that the court was wrong in that conclusion, the court conducted a s. 1 analysis and determined that if s. 2(b) was violated, the violation was justified under s. 1 - See paragraphs 88 to 102.

Civil Rights - Topic 8581.2

Canadian Charter of Rights and Freedoms - Practice - Judicial review (incl. standard of review) - At issue on this appeal was whether the requirement in the Citizenship Act (ss. 3(1)(c), 12(3) and 24) that applicants swear or affirm allegiance to the Queen in order to become a Canadian citizen was a violation of their rights to freedom of conscience and religion (Charter, s. 2(a)), freedom of expression (s. 2(b)) and equality (s. 15) - The Ontario Court of Appeal stated that the standard of review from the applications judge's decision on these issues was correctness - See paragraph 22.

Constitutional Law - Topic 5.2

General - General principles - Unwritten constitutional principles - Democracy - The Ontario Court of Appeal stated that democracy is an unwritten constitutional principle - The unwritten constitutional principles inform and sustain our Constitution, the roles of our political institutions and the scope or rights and obligations in our country - See paragraph 60.

Constitutional Law - Topic 5.2

General - General principles - Unwritten constitutional principles - Democracy - [See third Aliens - Topic 2528 ].

Statutes - Topic 2617

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Harmonization of statutes (incl. presumption of coherence) - [See third Aliens - Topic 2528 ].

Cases Noticed:

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 7].

Roach v. Canada (Minister of State for Multiculturalism and Culture), [1992] 2 F.C. 173; 53 F.T.R. 241 (T.D.), refd to. [para. 11].

Roach v. Canada (Minister of State for Multiculturalism and Culture), [1994] 2 F.C. 406; 164 N.R. 370 (F.C.A.), refd to. [para. 12].

Roach v. Canada (Minister of State for Multiculturalism and Culture) (2007), 230 O.A.C. 83 (Div. Ct.), refd to. [para. 18].

Roach v. Canada (Attorney General) (2009), 74 C.P.C.(6th) 22 (Ont. Sup. Ct.), refd to. [para. 19].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 29].

Canada 3000 Inc. (Bankrupt), Re, [2006] 1 S.C.R. 865; 349 N.R. 1; 212 O.A.C. 338; 2006 SCC 24, refd to. [para. 29].

William v. British Columbia et al. (2014), 459 N.R. 287; 2014 SCC 44, refd to. [para. 29].

Tsilhqot'in Nation v. British Columbia - see William v. British Columbia et al.

Reference Re Supreme Court Act (2014), 455 N.R. 202; 2014 SCC 21, refd to. [para. 30].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 47].

R. v. Foreign Secretary; Ex parte Indian Association of Alberta, [1982] Q.B. 892 (C.A.), refd to. [para. 51].

R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867; 275 N.R. 201; 206 Nfld. & P.E.I.R. 304; 618 A.P.R. 304; 2001 SCC 56, refd to. [para. 55].

Bell ExpressVu Limited Partnership v. Rex et al. (2002), 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 55].

House of Commons et al. v. Vaid et al., [2005] 1 S.C.R. 667; 333 N.R. 314; 2005 SCC 30, refd to. [para. 57].

R. v. Khawaja (M.M.) (2012), 437 N.R. 42; 301 O.A.C. 200; 2012 SCC 69, refd to. [para. 63].

Lavigne v. Ontario Public Service Employees' Union et al., [1991] 2 S.C.R. 211; 126 N.R. 161; 48 O.A.C. 241, refd to. [para. 70].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 74].

Reference Re Same-Sex Marriage, [2004] 3 S.C.R. 698; 328 N.R. 1; 2004 SCC 79, refd to. [para. 74].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 76].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 88].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 88].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 98].

Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827; 320 N.R. 49; 348 A.R. 201; 321 W.A.C. 201; 2004 SCC 33, refd to. [para. 98].

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201, refd to. [para. 100].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 101].

O'Donohue v. Canada et al., [2003] O.T.C. 623 (Sup. Ct.), affd. [2005] O.A.C. Uned. 162 (C.A.), refd to. [para. 106].

Bruker v. Marcovitz, [2007] 3 S.C.R. 607; 270 N.R. 1; 2007 SCC 54, refd to. [para. 110].

Lavoie et al. v. Canada et al., [1995] 2 F.C. 623; 95 F.T.R. 1 (T.D.), affd. [2000] 1 F.C. 3; 242 N.R. 278 (F.C.A.), affd. [2002] 1 S.C.R. 769; 284 N.R. 1, refd to. [para. 122].

Statutes Noticed:

Citizenship Act, R.S.C. 1985, c. C-29, sect. 3(1)(c), sect. 12(3), sect. 24 [para. 1].

Authors and Works Noticed:

Ajzenstat, ed., Canadian Constitutionalism: 1791-1991 (Canadian Study of Parliament Group: 1991), pp. 153, 154 [para. 38].

Côté, Pierre-André, Interpretation of Legislation in Canada (3rd Ed. 2000), p. 308 [para. 28].

Dicey, A.V., Introduction to the Study of the Law of the Constitution (7th Ed. 1908), pp. 8 to 10 [para. 51, footnote 4].

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.) (2014 Update), pp. 1-18 to 1-22 [para. 51, footnote 4].

Holdsworth, William Searle, A History of English Law (1909), pp. 350, 351 [para. 51, footnote 4].

Laskin, Bora, The British Tradition in Canadian Law (1969), pp. 117 [para. 50]; 118 [paras. 50, 52]; 119 [paras. 50, 51]; 120 [para. 51].

MacRae-Buchanan, Constance, American Influence on Canadian Constitutionalism, in J. Ajzenstat, ed., Canadian Constitutionalism: 1791-1991 (Canadian Study of Parliament Group: 1991), pp. 153, 154 [para. 38].

Marleau, Robert, and Montpetit, Camille, House of Commons Procedure and Practice (1st Ed. 2000), p. 176 [paras. 56, 59].

Report of the Royal Commissioners for Inquiring into the Laws of Naturalization and Allegiance (1869), Appendix, pp. 10 to 12 [para. 40].

Sharpe, R.J. and Roach, K., The Charter of Rights and Freedoms (5th Ed.), pp. 425, 426 [para. 116].

Smith, David E., The Invisible Crown: The first Principle of Canadian Government (2013), generally [para. 51, footnote 3].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 1 [para. 31].

Counsel:

Peter Rosenthal, Selwyn Pieters and Reni Chang, for the appellants;

Kristina Dragaitis and Sharon Guthrie, for the respondent.

This appeal was heard on April 8, 2014, before Weiler, Lauwers and Pardu, JJ.A., of the Ontario Court of Appeal. The following decision was released for the court on August 13, 2014, by Weiler, J.A.