It is more than a little foolish to say – as the federal Conservative website does – that “Stephane Dion … lets the unelected, unaccountable Liberal insiders in the Senate boss him around on issues ranging from crime bills to Senate reform.” And Hugh Segal, a Conservative appointed by former Liberal prime minister Paul Martin, is walking evidence that the unreformed Senate of Canada still has some high-minded virtue in 2008.

Yet even Senator Segal’s actions sometimes demonstrate why Prime Minister Harper can so aptly call the present upper house of the Canadian Parliament “a relic of the 19th century.” The Bill S-231 that Mr. Segal tabled just before the chamber’s Easter recess is a case in point. It proposes to use the “notwithstanding clause” in the Constitution Act 1982 to override any imminent judicial decision that the present Canadian citizenship oath of allegiance to the old colonial British monarchy violates the Canadian Charter of Rights and Freedoms. Even some among the monarchist minority in Canada today are worried that this will do their cause more harm than good. And they are probably right.

The progress of Charles Roach’s citizenship oath class action in the Ontario courts …

According to reliable sources in Mr. Segal’s home Senate division of Kingston, Ontario, he has brought Bill S-231 forward in direct response to a class action that seems about to gain a foothold in the Ontario courts. This action has been filed by the Toronto civil rights lawyer Charles Roach, on behalf of himself and a diverse assortment of individuals similarly situated.

Mr. Roach and his fellow class members object to the part of the current Canadian citizenship oath that requires new citizens of Canada to swear (or affirm) that they will “bear true allegiance to Her Majesty Queen Elizabeth … Her Heirs and Successors.” They contend that this part of the current oath violates their rights to freedom of conscience and the equality rights guaranteed by sections 2 and 15 of the Canadian Charter of Rights and Freedoms in the Constitution Act 1982.

The 74-year-old Mr. Roach and some of his fellow class members are immigrants who have lived in, paid taxes, and otherwise contributed to Canada for many decades now, but have not felt able to swear this part of the citizenship oath on grounds of conscience. Other class members are immigrants who have in fact sworn the current oath to gain the many advantages of citizenship, but under duress – again on grounds of conscience.

There are various reasons of conscience for objecting to that part of the current Canadian citizenship oath which requires new citizens to swear allegiance to the British monarch. One of them is that Mr. Roach and his fellow class members agree with the 55% of established Canadian citizens who told Angus Reid pollsters just this past February that they would “support … Canada ending its formal ties to the British monarchy.” (Only 34% said they would actually oppose this proposition. Another 11% said they were “not sure.”)

SOURCE: Angus Reid Strategies, March 12, 2008.

As Ontario Justice Edward Belobaba put the point last spring, in the first of several failed attempts by the present Attorney General of Canada to have the case summarily shut down: “Mr. Roach and the other members in this proposed class action would like to become Canadian citizens. But they … also want to advocate a constitutional reform that would eliminate the British Queen as the Canadian head of state. They cannot do this, they say, if they are required to swear an oath that they will be faithful and bear true allegiance to Her Majesty the Queen.'”

The present class action, it is similarly worth noting, has largely been shepherded through the courts by Mr. Roach’s daughter, Kikeola Roach, who is also an Ontario lawyer – and a born-in-Canada Canadian citizen. It has been actively supported by other born-in-Canada citizens, who share Charles Roach’s longstanding Canadian republican beliefs. (Such as myself, I should make clear. And, of course, no born-in-Canada citizens are required to swear oaths to the British monarch to become Canadian citizens.)

Bill S-231

Senator Segal would seem to agree that, as a strictly legal matter in the year 2008, Mr. Roach and his fellow class members may very well be right. But Senator Segal is also, he has confessed to his local newspaper, the venerable Kingston Whig Standard, “an unreconstructed monarchist.”

Senator Segal wants new Canadian citizens to continue to be required to swear allegiance to the British monarch – even though, as Justice Belobaba has explained as well, there “is nothing in the Constitution Act that requires … a new citizen must swear allegiance to the Queen.”

(And, Justice Belobaba goes on: “It is interesting to note that in Australia, also a constitutional monarchy,” as Canada still is, for the time being, legally and constitutionally of course, “new citizens are required to take a pledge of commitment’ to Australia and its peopleand laws'” that “makes no reference to Her Majesty the Queen.”)

So Senator Segal has now introduced Bill S-231 in the Senate of Canada. As alluded to above, it simply uses the so-called “notwithstanding clause” in section 33 of the Constitution Act 1982, to require that new Canadian citizens must still swear allegiance to the British monarch, notwithstanding any violation of the Canadian Charter of Rights.

Or, to cite virtually the full text of Senator Segal’s elegantly simple bill: The provisions of the present Canadian Citizenship Act “relating to the taking of the oath of citizenship and the form of that oath operate notwithstanding the provisions of sections 2 and 15 of the Canadian Charter of Rights and Freedoms.”

This bill has already received first reading in the Senate, and will apparently be considered at some point soon enough, now that Parliament’s Easter recess has come to an end. It is quite arguably unlikely that it will receive majority support even in the Senate – let alone in the Canadian House of Commons, as would be required for Bill S-231 to become the law of the land.

But the minority of all Canadians, coast to coast to coast, who are still, like Senator Segal, unreconstructed monarchists may see his bill as a noble parting gesture to another relic of the 19th century, quite appropriately made in the unreformed Senate of Canada. Meanwhile, many among the rest of us, even among the many fans of Senator Segals’s many other good works, will see all this as just another reason why the present Senate does need to be much more democratically reformed – or just abolished at the very least?

The more exact democratic politics of the case …

Setting the fate of the Senate itself aside, Senator Segal has two particular objections to Charles Roach’s citizenship oath class action. They are worth probing a little further, because they misperceive the precise democratic facts of the case in the year 2008.

First, as explained in the Kingston Whig Standard, Senator Segal urges that: “Putting the wording of the oath under the notwithstanding clause would mean that courts could not change the wording.” And “Segal argues that is the right thing to do, saying if someone wants to change the wording, they should do so through the political process, such as by running for office or petitioning MPs to make changes, not by going through the courts.”

Yet Mr. Roach’s class action is not exactly asking the courts to change the wording of the current citizenship oath. As Justice Belobaba has already explained: “Mr. Roach and the proposed class of similarly situated applicants say that the requirement in the Canadian citizenship oath to be faithful and bear true allegiance to Her Majesty the Queen’ violates their freedoms of conscience, speech, and association as guaranteed by ss. 2(a), (b) and (d) of the Charter of Rights and Freedoms, and their equality rights under s. 15(1) of the Charter. In the application they ask for a declaration to this effect,” and “an injunction restraining the respondent” [i.e. the Government of Canada] “from denying citizenship if the applicants choose not to take this portion of the oath.”

Mr. Roach and his colleagues, in other words, are just asking the courts to declare that they can become Canadian citizens without taking the part of the citizenship oath which refers to the British monarchy across the seas. And this request is actually about giving the applicants fair and equal access to the political process in our present-day “free and democratic” Canadian society.

As the current Angus Reid opinion polls suggest, e.g., there is already a political debate about the future of the British monarchy in Canada. Moreover, Canada-wide, those who want to end the country’s traditional colonial relationship with this monarchy are now, it seems clear enough, in at least a modest (if also gently growing) majority.

In this context, to insist that all new citizens must nonetheless still swear allegiance to the British monarch is to force a political position on them, in a matter of legitimate current debate – and a minority political position at that.

This quite arguably (to say the least) does violate their freedoms of conscience, speech, and association as guaranteed by ss. 2(a), (b) and (d) of the Charter. It tries to put them in a situation where, in principle, they cannot in good conscience act politically in support of the majority of established citizens in Canada today, who want to end the country’s relationship with the British monarchy, because as new citizens they have had to swear allegiance to this monarchy.

Similarly, those of us who already are citizens because we were born in Canada have not had to swear allegiance to the British monarchy to become citizens. We are free to act politically to end the monarchy’s (nowadays not at all necessary) role in our parliamentary democracy, without breaking a legal and presumably binding oath that we have been forced to take as a condition of our citizenship. And this, again, to say the least quite arguably, violates at least some new citizens’ equality rights under s. 15(1) of the Charter.

(All of this by the way has also been argued – quite independently of Mr. Roach’s class action in the courts – by the young Canadian lawyer Bryce Edwards, in a 2002 article entitled “Let Your Yea be Yea: The Citizenship Oath, the Charter, and the Conscientious Objector,” published by the University of Toronto Faculty of Law Review.)

New citizens who support the monarchy – and there no doubt are a few such people in Canada today – of course do not have this political problem. They can in good conscience swear the present oath in its entirety. But why must the new citizens who, e.g., stand on my side of the broader political debate (like the 55% of established Canadian citizens who have just told Angus Reid pollsters they support Canada ending its formal ties to the British monarchy) be forced to swear to a political position that neither they nor I agree with, in the real world as we know it in 2008? Isn’t this exactly one of the repressive forms of government interference with our political freedoms that we have a Charter of Rights to protect us from?

(And it is not just the freedom of new citizens that is being interfered with here, it seems to me. It is also my freedom to urge new citizens to join me and other already established citizens so inclined, in working to end Canada’s formal ties to the British monarchy, through the ordinary free and democratic political process.)

Finally, Senator Segal’s argument that the courts should not be intervening in such an essentially political matter would be much more impressive, if what Mr. Roach and his fellow class members were asking the courts to do was to settle the political debate about the future of the British monarchy in Canada. That is indeed a political matter, requiring a constitutional amendment under both Canada’s most ancient Constitution Act 1867 and its much more recent Constitution Act 1982. The courts do have no business in becoming involved in this matter.

As Justice Belobaba has also pointed out, however, Charles Roach and the similarly situated members of his class action are “not challenging the fact that Her Majesty the Queen is Canada’s head of state. The fact that the Queen is Canada’s head of state is constitutionally prescribed by ss. 9 and 17 of the Constitution Act, 1867. Canada is a constitutional monarchy.”

To change this is indeed a political matter, again. The present constitutional monarchy in Canada can only be changed by political means. All Mr. Roach and even those of us already born-in-Canada citizens who strongly support him are asking for from the courts is a level political playing field. Even unreconstructed monarchists like Senator Segal should not be able to use the courts and the federal bureaucracy – to say nothing of the notwithstanding clause in the Constitution Act 1982 – to arbitrarily recruit new-citizen supporters to their side, in the contemporary public debate about the future of the British monarchy in Canada.

What (or even who?) is the “host culture” in Canada nowadays anyway?

Senator Segal, as the Kingston Whig Standard has explained as well, “also objects to non-citizens attempting to change an oath … New arrivals to the country, who are not citizens of Canada, do not get to change the words of the oath of citizenship,’ he said … That is not the way it is done’ … He also said he was disturbed that the case could see one foundation of Canada – the Charter of Rights and Freedoms – being used to strike down another – the monarch – calling it an ultimate irony and a serious dilution of the host culture.'”

Much of this will strike those with more first-hand knowledge of Charles Roach and his fellow class-action members as rather wide of the mark in the real world. It is true, e.g., that Mr. Roach himself is a “non-citizen” immigrant, who came to Canada from Trinidad and Tobago in 1955. But he was born a British subject in Trinidad. I myself was born a British subject in Canada, in 1945. And there are many other born-in-Canada Canadian citizens over 60 years old nowadays in similar circumstances – as well as many born-in-Canada Canadian citizens under 30 years old who in some obvious ways have more in common with Mr. Roach than Mr. Segal.

In fact, there was no such legal status as a “Canadian citizen” until 1947. Up to that point people born in Canada, just like people born in the British West Indies, were legally and constitutionally British subjects – in the old imperial global village on which the sun never dared to set. It is a further complication of Mr. Roach’s case that until 1977 British subjects in Canada could enjoy many of the rights of Canadian citizens. So Mr. Roach was in Canada for some two decades when his legal status suddenly changed, through no fault or other action of his own.

Mr. Roach has now lived in Canada for more than half a century. As alluded to earlier, he has children who are born-in-Canada Canadian citizens – one of whom is the lead lawyer for his current class-action Charter challenge of the oath to the Queen.

Mr. Roach himself has made some notable contributions to Canadian public life. He is a founder of the annual Caribana festival in Toronto, which brings enough tourism dollars to his present-day Canadian hometown to attract the support of the old Bank of Nova Scotia. He has been a leading Toronto advocate of what Professor David Smith from the University of Saskatchewan has called The Republican Option in Canada since the 1990s. And he has led public commemorations of the hangings of Samuel Lount and Peter Matthews for their roles in the Upper Canadian Rebellion of 1837. (How many other Canadian residents nowadays, citizens or otherwise, pause to commemorate these abused 19th century figures, who gave their lives for the nascent free and democratic people of Canada 170 years ago?)

Charles Roach’s two leading class members in his current Charter challenge of the citizenship oath to the Queen, Michael McAteer and Ashok Charles, are immigrants who have now lived and worked in Canada for similarly long periods.

Mr. McAteer came to Canada from Ireland as a young man, and eventually spent many years as religion columnist for the Toronto Star. Like Mr. Roach, Mr. McAteer has long wanted to become an official Canadian citizen, but, as a principled republican, he has also long objected to swearing an oath to the British monarch.

Mr. Charles came as a child from the temple city of Madurai in south India, and spent some time in Northern Ontario before embarking on his adult career as a freelance photographer in Toronto. He actually became a Canadian citizen as a young man some 30 years ago now. But he swore the oath to the Queen under duress. In the midst of his more recent mature Canadian republican convictions he has publicly recanted the part of his citizenship oath that relates to the British monarch – while reaffirming the parts that relate to Canada alone. And he has a letter from Citizenship and Immigration Canada, indicating that this recantation in no way affects the status and good standing of his Canadian citizenship today.

Whatever else might be said about these individuals of conscience and high principle, they cannot seriously be described as what Senator Segal calls “new arrivals to the country.” In the case of Ashok Charles – and others like him among Charles Roach’s fellow class-action members – they already are and have been for many years Canadian citizens. (And, again, they are strongly supported by other born-in-Canada Canadian citizens as well, who have never had to swear allegiance to the British monarchy to secure their citizenship, under duress or otherwise!)

Moreover, it certainly seems to me, as one of these born-in-Canada Canadian citizen supporters of Mr. Roach and Mr. McAteer and Mr. Charles and all their other class-action colleagues, similarly misplaced to say, as Mr. Segal does, that the successful conclusion of this legal proceeding “could see one foundation of Canada – the Charter of Rights and Freedoms – being used to strike down another – the monarch” in “an ultimate irony and a serious dilution of the host culture” in Canada today.

As already noted above, this class action is not asking the courts to abolish the British monarchy in Canada, on the grounds that this institution itself – which is constitutionally provided for in the Constitution Act 1867 (formerly known as the British North America Act) – contradicts the Charter of Rights in the Constitution Act 1982. It is simply asking, again, that the courts ensure a level playing field in the current political debate about the future of the British monarchy in Canada.

Moreover, in the early 21st century, to say that this monarchy itself is a “foundation” of Canada is to take a particular position in this broader political debate. And to, as it were, force such individuals as Mr. Roach and Mr. McAteer and Mr. Charles to take an oath of allegiance to this monarchy is to force them to take this same monarchist political position – even if this conflicts with their own principles and the dictates of their conscience.

* 52% if rounded numbers for strongly and moderately support are summed. The Angus Reid pdf file reports 51% – which presumably reflects a rounding of the sum of the un-rounded strongly and moderately support numbers.

SOURCE: Angus Reid Strategies, March 12, 2008.

As the table above indicates, there remain a few parts of Canada today where a majority of the free and democratic and indeed even practically sovereign Canadian people of 2008 still do support the British monarchy as what Mr. Segal calls a “foundation” of Canada. But even if a majority in the country at large supported the institution in this way, it would still be a violation of the Charter of Rights (certainly in my view at any rate) to force new citizens to proclaim allegiance to only one side in a broad contemporary Canadian political debate of this sort.

And in fact, unless you are prepared to entirely dismiss such evidence as Angus Reid opinion polls, you must at least accept that at this exact point in time the majority of today’s sovereign Canadian people at large no longer see the British monarchy as some defining foundation for the country’s future. In this sense too, whatever else may or may not be true, the “host culture” in Canada can no longer be reasonably said to honour the British monarchy – in the way that it perhaps did, in at least some degree, 100 years ago.

In this sense as well, Mr. Roach and Mr. McAteer and Mr. Charles and all their other class-action colleagues cannot reasonably be said to aspire towards some “serious dilution of the host culture” as we know it now. They are doing something much more positive and forward-looking. They are standing up for Canada – as opposed to the old colonial culture of the empire on which the sun never dared to set. And that is why I at any rate strongly support them.

As for Charles Roach himself, as a Canadian civil rights lawyer of long experience he has confessed to being inspired by the late Rosa Parks in the United States – as well as the present Lord Mayor of London in the United Kingdom (whose sparkling birthday party for the 50th anniversary of the independence of Ghana Mr. Roach was pleased to attend last year).

Some celebrated words from Ms. Parks also aptly enough summarize the message of Mr. Roach’s citizenship oath class action for all of we the sovereign people of Canada in 2008: “Stand for something or you’ll fall for anything. Today’s mighty oak is yesterday’s nut that held its ground.”

Or, if we really do want an independent Canadian future in the challenging 21st century, we are going to have to start working for it ourselves. Whatever else may or may not be true, in your or my opinion, the British monarchy is no longer able to do that for us.

Randall White is the author of a number of books on Canadian history and politics, including Ontario 1610-1985: A Political and Economic History, and Voice of Region: The Long Journey to Senate Reform in Canada. He is also the author of a research paper in support of Charles Roach’s citizenship oath class action.

CW EDITORS’ UPDATE: There was some modest debate on second reading of Bill S-231 in the Senate of Canada on April 10, 2008. This came to an end with the intervention of Hon. Gerald J. Comeau (Deputy Leader of the Government), who declared:

“Honourable senators, I listened carefully to Senator Segal’s speech. I agree that this is an extremely important matter. I am also impressed at how well he presents his case for his private member’s bill. However, I have some reservations that I feel I must present to this chamber. In fact, this matter is currently before the courts. It would be highly unusual for this place to intervene in this matter before the courts have had a chance to render some kind of decision.

“Without discussing the subject matter, which I do not intend to do, I need to speak about how we, in this chamber, should handle cases that are before the court. However, I will need some time to reflect and prepare my notes on the subject so that we know how to deal with such issues.

“I propose the adjournment of this debate for the balance of my time.”

The official record then reads: “On motion of Senator Comeau, debate adjourned.”