Joseph Brean, Canwest News Service, February 20, 2008
TORONTO—The Queen’s place in Canada is going to trial, now that the federal government has failed to stop a Charter of Rights and Freedoms challenge of the citizenship oath’s reference to the monarchy.
Three judges of the Ontario Court of Appeal on Tuesday denied the federal attorney general’s request to dismiss the case.
Brought by Charles Roach, a Toronto lawyer who objects to the monarchy’s connection to slavery, the case has rallied the diverse forces of Canadian republicanism, from Irish and Indian nationalism to casual distaste for monarchies.
Without even hearing from Roach’s lawyer and daughter Kikelola Roach, the judges upheld an earlier ruling, and dismissed the government’s appeal, calling the case a “straightforward, charter-based constitutional challenge of a federal law,” and not a dispute over the conduct of federal officials.
As Associate Chief Justice Dennis O’Connor put it: “There’s nothing, quote, citizenshippy about it.”
To overturn this ruling, the government would now have to go to the Supreme Court of Canada.
Roach was in Trinidad Tuesday, and not available for comment.
Tuesday’s ruling means the class action, in which damages of $5,000 are being sought for people who have refused to swear the oath or swore it under duress, now can proceed in the Ontario Superior Court.
As the test case, Roach, 74, a permanent resident of Canada who was born a British subject in Trinidad and emigrated to Canada more than 50 years ago, argues the requirement to swear an oath to the Queen violates the charter’s freedom of conscience provision.
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.
Kristina Dragaitis, a lawyer for the attorney general, argued before three judges of the Ontario Court of Appeal that Roach is now “forum shopping” after losing a similar case in the Federal Court of Appeal in 1994. Regardless, she said, Federal Court is where citizenship disputes are settled, not provincial court.
She argued a lower court judge, who last year denied the government’s request to dismiss the case as an abuse of process, was wrong to conclude that “this is not an immigration matter. . . . No one is caught up in federal immigration procedures; no one is appealing a denial of citizenship, or complaining about delays in the processing of citizezenship papers.”