Unwilling to swear
Ottawa champions an oath some new Canadians reject
Joseph Brean, National Post Published: Tuesday, February 19, 2008
The government of Canada will be in the Ontario Court of Appeal today, attempting to get a class-action lawsuit tossed out. At issue is whether the Charter rights of new Canadians are violated by the requirement to swear an oath to the Queen.
The case's very existence is remarkable, given that it was already fought at the Federal Court of Appeal in 1994, when Charles Roach, the Trinidadian-Canadian lawyer who believes forcing blacks to swear to the British monarch is like forcing Jews to swear to Hitler, lost a split decision.
But that was an appeal of a mere citizenship court ruling, sparked in 1987 when the Law Society of Upper Canada required lawyers to be Canadian citizens, and Mr. Roach, a permanent resident after emigrating to Saskatchewan from the Caribbean island in 1955, asked for an exemption.
Now, with the case re-framed as a Charter breach, the government is pulling out all the stops in defence of Her Majesty, Canada's head of state, to whom new citizens -- but, notably, not native-born ones -- must promise to "be faithful and bear true allegiance." In the past year, government lawyers have tried and failed in lower courts to have the case judged frivolous, doomed or already decided. They have argued that removing the oath would require a wholesale constitutional change, on par with abolishing constitutional monarchy. So if they win today against Mr. Roach and his loyal band of republican followers, all eyes will turn to the Supreme Court's schedule.
Represented by his lawyer and daughter Kikelola Roach, Mr. Roach, 74, is an unusual plaintiff, and not just because he is a lawyer himself. A prominent black activist and founder of Toronto's Caribana festival, he has in the past sued police for false arrest and won $512 in damages. He sued a local politician and NOW Magazine, a free Toronto weekly, for libelling him as anti-Semitic. He successfully defended his friend and fellow activist Dudley Laws on a sexual-assault charge and led the campaign to label former Ontario NDP premier Bob Rae a racist for bringing the Barnes Exhibit to Toronto in 1994, because Dr. Albert Barnes' significant collection of African art was not included in the popular show.
Now, in uniting the causes of African slavery, Irish and Indian repression, and casual republicanism, his case has drawn into focus the ancient conundrum of governments forcing people to declare things they do not mean.
As such, Mr. Roach is the latest in a tradition of objectors that stretches back at least to George Fox, the 17th-century founder of the Quakers, who, like Mennonites, have long refused oaths due to their scriptural prohibition against swearing.
In federal court last month, for example, a judge ruled in the case of Captain Aralt Mac Giolla Chainnigh of the Royal Military College in Kingston, who, being Irish, objected to outward displays of loyalty to the Queen at regimental functions. The judge ruled that opting out of such protocols would lead to a "chaotic and unworkable situation."
U.S. presidents Franklin Pierce and Herbert Hoover both "affirmed," rather than swore, to God at their inaugurations. And when she was sworn in as Toronto's police commissioner in 1989, Susan Eng promised to do her job faithfully, but not to "well and truly serve Her Majesty the Queen." Her refusal eventually led to a change in the police oath.
Early on in Mr. Roach's campaign, a citizenship judge suggested that if he were to "do it in a large group, you won't even have to move your lips." This is a commonly proposed solution to objectionable oaths, but a strange one: that it is best to just hold one's nose and recite a meaningless vow.
A precedent of sorts was set in 1880, when the atheist Charles Bradlaugh was elected an MP in Britain but refused to swear the religious oath of allegiance, preferring to affirm it, or to recite it without meaning it "as a matter of form." Instead, he was imprisoned for trying to take his seat unlawfully, and after getting re-elected four times, managed to rewrite the Oaths Act with the option to affirm.
Today, some of the most culturally important oaths still retain a streak of duplicity. Most doctors do not literally believe in the pantheon of Greek deities, but few if any object to the Hippocratic Oath, in which they swear "by Apollo Physician and Asclepius and Hygeia and Panaceia and all the gods and goddesses." Boy Scouts in Canada swear to do their duty to both God and the Queen, even though those with diverse religious and political views are accepted. Girl Guides, on the other hand, swear to either God or "faith," and Canada, not the Queen.
After decades of legal wrangling, Canada's oath to the Queen is lurching toward a crisis. As Mr. Roach declared yesterday in a letter to supporters, "If we win this class action, a centuries-old tradition would begin to unravel."
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