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True Allegiance: The Citizenship Oath and the Charter

(2014) 33:2 National Journal of Constitutional Law 137

28 Pages Posted: 7 May 2014 Last revised: 22 Jan 2015

Leonid Sirota

AUT Law School

Date Written: May 4, 2014

Abstract

Would-be Canadian citizens are required to swear an oath, which includes a promise of “true allegiance” to the Queen. For some, swearing allegiance to a what they regard as a person embodying inequality, colonialism, and oppression goes against their deeply-held republican or egalitarian values. However, Canadian courts have so far rejected Charter challenges to the citizenship oath.

This article argues that the oath is, nevertheless, unconstitutional, albeit on a basis different from that mostly canvassed by the courts which have considered it. Rather than an infringement of freedom of expression, the citizenship oath should be analyzed as a violation of the freedom of conscience of those required to take it. Like most oaths, it is an attempt not only to impress the importance of the obligation it imposes on those who take it, but also to enlist their sense of right and wrong ― that is to say, their conscience ― in the service of the state’s objectives.

Because the citizenship oath is a violation of freedom of conscience, it is irrelevant that those who object to it may be misunderstanding its true significance, or the real nature of “the Queen” in Canadian law. As in freedom of religion cases, courts must recognize their subjective conception of their conscientious obligations, and the extent to which taking the oath conflicts with them. With this in mind, it becomes apparent that the reasons advanced to justify the oath under s. 1 of the Charter cannot do so.

Keywords: Canada, Charter, citizenship, freedom of conscience, oath, constitutional law, monarchy

Suggested Citation

Sirota, Leonid, True Allegiance: The Citizenship Oath and the Charter (May 4, 2014). (2014) 33:2 National Journal of Constitutional Law 137. Available at SSRN: https://ssrn.com/abstract=2433711 or http://dx.doi.org/10.2139/ssrn.2433711

Leonid Sirota (Contact Author)

AUT Law School ( email )

AUT City Campus
Private Bag 92006
Auckland, 1142
New Zealand
+64 9 921 9999 ext 5531 (Phone)

HOME PAGE: http://doubleaspect.blog

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