The Heredity Oath in Canada's Citizenship Act Must Be Declared Optional on Appeal: The Fatal Errors Made in McAteer v. Attorney General of Canada, 2013 ONSC 5895

Abstract

Canada's Citizenship Act requires aspiring citizens to express allegiance to the hereditary Queen and her heirs and successors as part of an oath of citizenship. In September 2013, Ontario's Superior Court of Justice ruled that the forced regal oath is a justifiable limit on free speech under Canada's Charter of Rights and Freedoms. An appeal of the decision is currently before Ontario's Court of Appeal. This paper examines the flaws in the lower court ruling in detail. First, the paper examines recent Canadian public opinion about the Charter and the monarchy. Second, the paper sets out the missing legislative history of the oath and similar Ontario oaths from 1945-2010, a crucial period that received insufficient attention from the lower court. This period includes the years after 1982, when the Charter became part of Canada's constitution and Ontario lawmakers across the political spectrum removed forced regal oaths in other noteworthy contexts to respect free speech under the Charter. Third, the paper sets out the key provisions of the Citizenship Act and Citizenship Regulations for the purpose of the appeal. Fourth, the paper methodically discusses each part of the Supreme Court of Canada's test for a justifiable limit on free speech, indicating at each stage why the forced regal oath is not justifiable. The paper concludes by explaining why the appropriate remedy is to declare the regal oath optional, effective immediately.