TORONTO - The government's practice of requiring new Canadian citizens to swear an oath to an "offshore queen," even if they do it with just "a wink and a nod," may well violate the Charter of Rights and Freedoms, an Ontario judge said yesterday.
In a hearing about a potential class-action lawsuit brought by a Toronto criminal lawyer, the government asked Mr. Justice Edward Belobaba to dismiss the case as frivolous and doomed to fail.
But the judge instead grilled the government lawyer, and called the case "a fascinating issue, to say the least," with a clear cause of action and potential for success.
The judge's comments came as the Queen herself concluded her U.S. tour yesterday with a visit to the National World War II Memorial in Washington.
Charles Roach, 73, who was born a British subject in Trinidad and Tobago and is now a permanent Canadian resident, said in an interview that he expects his case will survive until September, when he can apply to certify it as a class action. He argues that the mandatory oath violates the Charter's freedom of conscience provision.
"I feel that we [blacks] were colonized as a people by the British throne, and we were enslaved as a people by the British throne and, to me, taking an oath to the monarch of Great Britain, without any disrespect to the Queen herself as a person, is like asking a Holocaust survivor to take an oath to a descendant of Hitler," he said.
Judge Belobaba reserved his decision yesterday.
But every indication was that the government had lost in its bid to have the case dismissed.
"You have the uphill struggle here," the judge told Vanita Goela, counsel for the Attorney- General. Throwing out a Charter case is "a very high, strong hurdle to clear. I don't know if you'll succeed today.
Ms. Goela called Mr. Roach's case a "relitigation," because he made similar arguments 15 years ago in federal court -- he went on to lose an appeal by a 2-1 decision -- and because citizenship is a federal matter. She said some paragraphs in the current lawsuit have even been cut-and-pasted from 1992 court documents.
"Fifteen years is a long time in the evolution of Charter rights," the judge said, citing for example the status of gays and lesbians. "Are you saying we should throw this out because of what was decided by two of the three judges in 1992?"
After a brief hesitation, Ms. Goela replied, "Yes."
Mr. Justice Belobaba said he is willing to cede jurisdiction to the federal court on immigration issues, but "this is not an immigration case, this is a freedom of conscience case," he said. "It's the content of this oath that is being challenged, and even lowly Superior Court judges can get their heads around that."
With exemptions only for the disabled, new Canadian citizens must swear an oath to "be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors ..." Citizenship then permits people to vote, serve on juries, get a passport, run for office, leave Canada with the right to return and pass citizenship to their children born elsewhere.
Mr. Roach came to Canada in 1955 to study at the University of Saskatchewan. He has actually sworn allegiance to the monarchy twice before: first while training as a reservist in the 1950s, and again when he became a lawyer in 1963, but he says his views had not fully matured.
In 1988, when the Law Society of Upper Canada required barristers and solicitors to be Canadian citizens, he applied for citizenship, but asked the judge if he could modify the oath to omit reference to the monarchy.
That judge said no, and this class action is the culmination of a 15-year campaign -- beginning in federal court, then moving behind the scenes to the ministerial level, and now into provincial court -- to swear that modified oath. Until then, he remains a permanent resident in Canada.
He seeks token damages of $5,000 for people, such as himself, who have refused on grounds of conscience to swear the oath, or others who have sworn it under duress.
That figure is somewhat arbitrary and is specified only because class-action law requires a specific number.
"But there are some real money damages that are involved," Mr. Roach said, citing fees for non-Canadians to cross the U.S. or European borders, or ineligibility for various Canadian grants, such as from the Canada Council.
Two members of the proposed classes were in court yesterday.
Michael McAteer, 72, a retired journalist with the Toronto Star, came to Canada in 1964 from Dublin. He never made the oath, and so is not a citizen.
"In general, I don't like monarchies. If they would require me to take an oath to be faithful to Canada, that would be fine. But as a democrat, I think the monarchy is an undemocratic system that serves no purpose whatsoever," Mr. McAteer said.
He said the oath would also lend his approval to whatever the Queen or her successor does in the future, which is unacceptable.
Ashok Charles, 51, a commercial photographer, took the oath at 22 but renounced the reference to the Queen in 2004, and even got an acknowledgement from the federal Ministry of Citizenship and Immigration.
"I feel it was done under duress," he said of the oath. He said that, as an Indian-born Canadian resident with plans to travel in Europe, he would have needed a visa for every country.
"I needed the advantages and benefits of a Canadian passport," he said. "I didn't see any alternative."
The judge's decision on whether to dismiss the case is expected within a few weeks.
Miss P, your story should have been entitled "When in Rome, do as the Romans do. Oh yea, do we?"
That's the dilemma so many of us face when we leave our homelands. Do we adopt all the customs carte blanche of the new land, or do we hang on as much as we can to our principles from our native lands?
In many ways the answer to this basic question becomes the foundation of how we live our lives and function in these new societies.