Oath of Allegiance (Canada)

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The Canadian Oath of Allegiance is a promise (or declaration) of fealty to the Canadian monarch taken, along with other specific oaths of office, by new occupants of various governmental positions, including federal and provincial viceroys, appointees to the Queen's Privy Council, Supreme Court justices, Members of Parliament, Members of provincial parliaments, as well as Canadian Forces and Royal Canadian Mounted Police personnel. The Oath of Allegiance may also form a part of oaths taken by new members of provincial and municipal police forces.

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[edit] Purpose and composition

The oath serves to "remind the individual taking it of the serious obligations and responsibilities that he or she is assuming."[1] Given this, the locus of allegiance is the monarch as he or she is vested with all powers of the state, and is seen as one who "personifies the State and is the personal symbol of allegiance, unity and authority for all Canadians,"[2] and who, in the military context, is the Commander-in-Chief.[3] The oath is not seen as one to the monarch as an individual so much as one to the Crown; the sovereign is a representative of the state, both nationally and provincially, or "the embodiment of a democratic and constitutional form of government."[1] The form of the oath derives from that which was, and still is, taken by parliamentarians in the United Kingdom.[1]

The relationship between the oath taker and the monarch is a complex one with roots reaching back to historical periods when a monarch ruled and accepted an oath of fealty from subjects. The modern oath remains reciprocal, but now the oath taker places their allegiance to the continuing state, its laws, etc., as embodied by the monarch. As the legal personality of the state, the monarch has obligations to the oath taker, the monarch's acceptance of which is symbolized by the Coronation Oath, where he or she promises "to govern the Peoples of... Canada... according to their respective laws and customs."[4] It has been said of this mutual verbal contract: "except through the person of the Queen, Canada cannot take an oath to Canadians in return. It doesn't exist in the sense that it can take an oath. It is fundamental to our tradition of law and freedom that the commitments made by the people are reciprocated by the state. Reciprocal oaths are essential to our Canadian concept of government."[5] Within the context of the Canadian Forces, the oath is "the soldier's code of moral obligation."[6]

The oath, in its present form, is:

I, ……………, do Solemnly swear (affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors according to law, forever. So help me God.

A person may choose to replace the word swear with affirm and to omit the phrase "so help me God." This person is also given the option of swearing on a bible or not.

The oath for Senators and Members of Parliament has stood the same since Confederation; according to Section 128 of the Constitution Act, 1867: "Every member of the Senate and the House of Commons of Canada shall before taking his Seat therein take and subscribe before the Governor General or some Person authorized by him, and every Member of a Legislative Council or Legislative Assembly of any Province shall before the Lieutenant Governor of the Province or some Person authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act."[7] The oath set out therein, along with the further instruction that "the name of the King or Queen of the United Kingdom of Great Britain and Ireland for the Time being is to be substituted from Time to Time, with Proper Terms of Reference thereto," reads as follows:[8]

I, ……………, do swear, that I will be faithful and bear true Allegiance to Her Majesty Queen Victoria.

For those Parliamentarians whose religion prohibits the swearing of oaths, there exists a compromise affirmation from 1905:

I, ……………, do solemnly, sincerely and truly affirm and declare the taking of an oath is according to my religious belief unlawful, and I do also solemnly, sincerely and truly affirm and declare that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second.

The Oath of Allegiance also forms a part of the Oath of Citizenship taken before citizenship can be granted, as well as the Oath of the Members of the Privy Council.[9]

[edit] Administration of the oath

The oath is administered to both new and returning Members of Parliament by the Clerk of the House, or a designate. Failure to take the oath of allegiance constitutes an absolute bar to sitting or voting in parliament or the provincial legislatures of Canada, along with a denial of the associated salary; this does not mean the person ceases to be a member of the house, simply that they cannot sit in it.[10] In 1875 George Turner Orton, member for Wellington Centre, inadvertently failed to swear the oath. Though Orton did eventually take the oath, the matter was referred to the Select Standing Committee on Privileges and Elections, which found that the votes Orton cast in the House prior to his being called to swear the oath were rendered invalid.[1] The only way to change this would be to amend the constitution, though it is not entirely clear whether this could be done under the general amending formula (through resolutions of parliament and of the legislatures of at least two-thirds of the provinces having at least 50% of the population) or whether it would necessitate the undivided agreement of all the parliamentary houses of Canada, as required for any constitutional alteration that affects the Crown.

A breach of the oath can also be seen as an act punishable by refusal to continue to sit in the House of Commons. Actions such as making treasonous comments in a time of war could be considered a break of the oath, as the oath to the monarch is considered an oath to the country.[11] Expressing anti-Confederation sentiments, however, is not, as long as the proponent continues to work for their cause within the laws and customs of Canada, and the Queen could remain the head of any new state formed after succession from Canada.[1] As early as 1867 this notion was tested; Joseph Howe opposed Confederation but was elected to the House of Commons and took the Oath of Allegiance, though he continued to work to dissolve the union.[12] Later, in 1976, members of the Quebec Parti Québécois were elected to the National Assembly of Quebec. According to press reports, some of these persons swore the oath with their fingers crossed,[13] though this had no effect on the enforcement of the oath itself.[1]

[edit] Those required to take the oath

The following is a list of persons in Canada who must take the Oath of Allegiance before occupying a governmental, military, police, or judicial post. Generally, these persons are appointed by the monarch or relevant viceroy, meaning they serve at Her Majesty's pleasure, and are charged with creating or administering the law.

[edit] Federal

[edit] Provincial

[edit] Variants

[edit] Voluntary organizations

[edit] Opposition and augmentation

In 1970 the recently elected members of the separatist Parti Québécois refused to recite the oath of allegiance before taking their seats in the National Assembly of Quebec. At the time, all the other parties in the assembly agreed the oath was outdated and needed to be amended.[14] The Act Respecting the National Assembly of Quebec was granted Royal Assent in 1982, in which a supplementary oath pledging loyalty to the people of Quebec was included.[15] The Members' Manual of the National Assembly outlines that this additional oath is to the people and constitution of Quebec, distinct from the Oath of Allegiance, which is an oath to the country via the Queen,[16] though some saw the Queen as representative of the Quebec state and not of Canada,[1] taking into account Canada's "divisible" Crown. Later, in 1989, Susan Eng, when appointed as chair of the Toronto Police Services Board, refused to take the full Oath of Allegiance, omitting the promise to "well and truly serve Her Majesty the Queen"; Eng's insurgence eventually led to a change in the oath taken by all new Toronto Police Service recruits.[17]

Ontario MPP Dominic Agostino proposed in 1996 that the Ontario Legislative Assembly follow that of Quebec and add another requisite oath of allegiance to Canada, to be taken by MPPs following the oath to the monarch. However, the Standing Committee on the Legislative Assembly found that the monarch referred to in the Oath of Allegiance was already the personification of the Canadian state, and thus it was redundant to swear allegiance to both the Queen and to Canada.[5]

Amendments have also been proposed at the federal level, however the same difficulty in altering the constitution thwarted any real changes. Members of Parliament thus have tabled various bills that sought to alter the Parliament of Canada Act; none have been successful, though certain MPs have recited further pledges in the presence of their constituents or added their own pledge after reciting the Oath of Allegiance.[18] In 2005, Senator Raymond Lavigne uttered the words "and to my country, Canada," at the end of the Oath of Allegiance. Doing so raised questions from other senators, and Lavigne was instructed to take the oath again, without the amendment. Following this, Lavigne proposed that the Senate rules be changed to add an oath to Canada after the oath to the sovereign, in the form of: "I, (full name of the Senator), do swear (or solemnly affirm) that I will be faithful and bear true allegiance to Canada." The motion never passed.[19]

All members of the Civil Service were previously required to take the Oath of Allegiance before being officially hired. This stipulation led Pierre Vincent, a civil servant of Acadian descent who refused to swear the oath, to undertake a three year legal challenge against the Public Service Commission. The Commission found that Vincent could keep his job with the Civil Service, and, though the Supreme Court found that civil servants continued to be employees of the Canadian monarch,[20] Royal Assent was granted to the Public Service Modernization Act in 2003, which removed the necessity for bureaucratic civil servants to take the oath to their employer.

The Oath of Allegiance within the Oath of Citizenship was also challenged by Toronto lawyer Charles Roach, who, after his case before the Federal Court was ruled against, and his appeal to the Supreme Court denied,[21] on December 7, 2005, filed, along with sixteen others, a class action lawsuit in the Ontario Superior Court of Justice, claiming the requirement to swear allegiance to the monarch of Canada violated the freedom of conscience clauses of the Charter,[22][23] and opining that requiring Black people to swear an oath to the monarch of Canada was akin to forcing Jews to swear an oath to Adolf Hitler.[17] Some members of the activist group Citizens for a Canadian Republic also ceremonially "recant," each Victoria Day, the portion of the Oath of Citizenship that promises allegiance to the monarch. Though there has been no final ruling on this case, a similar one in the United Kingdom, wherein Martin McGuinness refused to swear the Oath of Allegiance to the British monarch, was refused his seat in the British House of Commons, and took his case to the European Court of Human Rights in 1997. The application was deemed inadmissible on the basis that the requirement of an oath of allegiance to a reigning monarch is "reasonably viewed as an affirmation of loyalty to the constitutional principles which support... the workings of representative democracy in the respondent State."[24]

Further information: Opposition to the Oath of Citizenship
See also: Alteration and augmentation to the New Zealand Oath of Allegiance

[edit] See also

[edit] External links

[edit] Footnotes

  1. ^ a b c d e f g Robertson, James R.; Oaths of Allegiance and the Canadian House of Commons; Library of Canada; September, 2005
  2. ^ Department of Canadian Heritage: The Crown in Canada
  3. ^ Dickenson, Ron A.; Joyce, C. Tony; The Military as a Profession: An Examination; prepared for the Canadian Forces Leadership Institute; May, 2002; pg. 20
  4. ^ The Form and Order of Service that is to be performed and the Ceremonies that are to be observed in the Coronation of Her Majesty Queen Elizabeth II in the Abbey Church of St. Peter, Westminster, on Tuesday, the second day of June, 1953
  5. ^ a b Committee Transcripts: Standing Committee on the Legislative Assembly - April 10, 1996 - Bill 22, Legislative Assembly Oath of Allegiance Act, 1995
  6. ^ Report of the Somalia Commission of Inquiry
  7. ^ Constitution Act, 1867; IX.128
  8. ^ Constitution Act, 1867; Fifth Schedule
  9. ^ Governor General of Canada: Oaths of Office
  10. ^ Fraser, Alistair ; Dawson, W. F.; Holtby, John A.; Beauchesne's Rules & Forms of the House of Commons of Canada; Sixth Edition; The Carswell Company Limited; Toronto, 1989; p. 68
  11. ^ Beauchesne, Arthur; Rules & Forms of the House of Commons of Canada; Fourth Edition; The Carswell Company Limited; Toronto, 1958; p. 14
  12. ^ Pryke, Kenneth George; Nova Scotia and Confederation, 1864-1870; Doctoral Dissertation; Duke University, 1962; p. 147
  13. ^ Lynch, Charles; The Ottawa Citizen: Bloc Québécois: Members Make Oaths of Office Seem Ridiculous; July 29, 1990
  14. ^ CBC Archives: René, The Queen and the FLQ
  15. ^ An Act Respecting the National Assembly of Quebec; Schedule I, Section 15
  16. ^ Manuel des membres de l'Assemblée nationale; Quebec, National Assembly; 1986; 2.1, p. 2
  17. ^ a b Brean, Joseph; National Post: Unwilling to swear; February 19, 2008
  18. ^ House of Commons, Debates, 14 March 1994, at 1140 (Ted White, MP); House of Commons, Debates, 5 May 2003, at 1730 (Eugène Bellemare, MP)
  19. ^ Senate, Debates, 16 April 2002, No. 104, at 1520 (Question Period)
  20. ^ Smith, David E.; The Invisible Crown; University of Toronto Press; 1995; p. 79
  21. ^ CBC News: Lawyer allowed to challenge citizenship oath; May 18, 2007
  22. ^ Citizens for a Canadian Republic: Canada's Citizenship Act target of class action lawsuit; December 10, 2005
  23. ^ Ontario Superior Court of Justice: Charles C. Roach vs. Her Majesty Queen Elizabeth II
  24. ^ McGuiness v. United Kingdom; Application No. 39511/98, unreported judgment February 18, 1999