Tuesday, July 09, 2013

Constitutional challenge to remove the Oath to Monarchy from the Canadian Citizenship Act in Ontario Superior Court of Justice

The original Freedom 5 plaintiff’s 
(Charles Roach, Howard Gomberg, Michael McAteer, Ashok Charles and advisor Randall White) 

Update: September 20, 2013 Justice Morgan decision in the Constitutional challenge of Citizenship Act (Superior Court) McAteer v. Canada (Attorney General) 2013 ONSC 5895 (ON S.C.) . See also, Colin Perkel, Required Oath to Queen for new Canadians constitutional, court rules, CP, September 20, 2013; Colin Perkel, Citizenship oath to the Queen violates free speech, but isn't unconstitutional, Ontario court rules, National Post, September 20, 2013.

McAteer et al. v. AGC - The Applicants, Michael McAteer, Simone Topey and Dror Bar-Natan,  questioned the constitutional validity of the Oath or Affirmation of Citizenship prescribed by section 24 of the Citizenship Act R. S.C. 1985, c.C-29 and the regulations made pursuant thereto at the Ontario Superior Court of Justice on Friday, July 12, 2013 at 10:00 a.m. courtroom 5-0 at 330  University Avenue, Toronto, Ontario.

The Citizenship Act requires applicants for citizenship to swear or affirm that they will bear true allegiance to Queen Elizabeth the Second and her Heirs and Successors. Many people who feel that the monarchy is an
anti-democratic relic of the past conscientiously object to taking such an oath and feel that it should suffice to take an oath to Canada.

Twenty years ago, the late civil rights lawyer Charles Roach launched a Charter challenge to this oath in the Federal Court; he lost. In 2005, Mr. Roach started a similar case in Ontario's Superior Court. The Attorney
General of Canada argued that this case should not be heard because of the earlier dismissal by the Federal Court. However, it was ruled that, as a result of changes in Charter jurisprudence in the past twenty years, the case could go ahead.

Mr. Roach died on October 2, 2012. The case is now proceeding on behalf of three new applicants: Michael McAteer (retired former journalist for the Toronto Star), Simone Topey (of the Black Action Defence Committee) and Dror Bar-Natan (Professor of Mathematics at the University of Toronto).

For reasons of conscience and/or religion, the applicants feel that they cannot take the oath. They are arguing that the oath requirement violates their rights to freedom of religion and conscience pursuant to section 2(a)
of the Charter, their right to freedom of expression provided by section 2(b) of the Charter, and their equality rights guaranteed by section 15(1) of the Charter. The Attorney General of Canada is arguing that "The
inability to enjoy the benefits of citizenship - to hold a Canadian passport and to vote - are amongst the costs reasonably borne by individuals whose personal beliefs run counter to Canada's foundational

Peter Rosenthal, one of the lawyers representing the applicants, said: “Like the present applicants, Charles Roach really wanted to become a citizen of Canada but his conscience would not allow him to take an oath to a person that symbolized inequality. I hope that that this case will vindicate Mr. Roach's extraordinary efforts to promote equal dignity of all human beings.”

For more information, contact any of the applicants or Peter Rosenthal :
Michael McAteer, mrpmcateer@bell.net ; Simone Topey,
racquiah@hotmail.com; Dror Bar-Natan,
drorbn@math.toronto.edu ; Peter Rosenthal, rosent@math.toronto.edu

- 30 -

The Lawyers for the Applicants are

Peter Rosenthal
Michael Smith
Selwyn Pieters
Reni Chang

Lawyers for  The Attorney General of Canada are

Kristina Dragaitis
Sharon Stewart Guthrie

A copy of the court documents in this case are to be found here


Jeff Gray, The Globe and Mail ‏Would-be Canadian citizens set to fight oath to Queen, Published on Thu Jul 11 2013

Bob Hepburn Politics, Toronto Star, Stephen Harper’s love for Canada’s colonial past Published on Thu Jul 11 2013

Colin Perkel, The Canadian Press Would-be citizens set to fight oath to Queen  via @metrotoronto Published on Thu Jul 11 2013

  • Roach v. Canada (Attorney General), 2009 CanLII 7178 (ON SC)
    Superior Court of Justice — Ontario
    class — oath — citizenship — allegiance — proceeding
  • Roach v. Canada2008 ONCA 124 (CanLII)
    Court of Appeal for Ontario — Ontario
    motion — straightforward — handling — officials — constitutional

    Roach v. Canada (Secretary of State)2007 CanLII 17373 (ON SC)
    Superior Court of Justice — Ontario
    swear allegiance — class — abuse of process — forum — constitutional
Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago). A significant portion of Selwyn's work involves representation of persons in racial discrimination / harassment / profiling cases in the Federal and Provincial Courts and the Human Rights Tribunal of Ontario. Selwyn has appeared at all levels of courts, including the Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post(2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383 and Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20. His current cases include the competing rights case of Taylor-Baptistev. Ontario Public Service Employees Union, 2012 HRTO 1393 that is at the reconsideration stage at the HRTO; Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act.


Christopher Wilson said...

We swear allegiance to the queen in right of Canada as she is the titular head of government. It you have any doubt as to her entitlement to be head of this country check out who actually owns more than 90 per cent of this country. More than 90 per cent of all of the land in Canada is owned directly by the Crown. That's the Queen. It is from her every land title descends. The government of Canada raises taxes on that land and you to run the country. Irishmen have damned good reasons for not liking so called British Monarchy, starting with William the Bastard sending over the Butlers, going through To Elizabeth getting rid of an inconvenient boyfriend who murdered thousands over there and continuing with the terrible behaviour of the British in this century. But this has nothing to do with Canada's Queen who is a completely different legal entity to the British Queen, just happens to be the same person which means the Brits get to pay for her not us. Works for me. So why swear oaths at all to anyone? The old theory was the rulers were divided into lords spiritual and lords temporal, bishops and archbishops on the one hand and lords and kings on the other. We swear oaths to the Lord Temporal, the King or Queen because she is supposed to receive entitlement to rule over earthly matters by right of God. The Divine right of Kings and Queens to rule suffered a set back when Charles 1 got his head cut off for insisting on it but it is that divine right which enabled Europeans including the British to justify taking over this and other countries in the first place. The theory was that rulers ordained by God were superior to rulers who got there by more democratic processes, like tribal council nominations. So if we now say it is all bollocks we pretty much give up the right to occupy this country except by force. Bottom line: suck it up, you've enjoyed the benefits of this unequal deal, taken someone else's property and you have to continue to pay homage to the legal entity.

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