Freedom of Association and Assembly / Protests, Political Expression, Religious Expression
The Case of Mikhlif Al-Shammari
Closed Contracts Expression
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The Court of Appeal for Ontario upheld the decision of the Superior Court of Justice for Ontario that while taking an oath of citizenship in order to become a Canadian citizen is a form of compelled expression, it is a reasonable limitation on the freedom of expression, justifiable in a free and democratic society.
The Applicants were permanent residents of Canada. Under Section 24 of Canada’s Citizenship Act, the Applicants were required to affirm allegiance to the Queen of Canada.
The Applicants objected to the requirement, claiming that it was in violation of their freedom of religion, expression, and equality guaranteed under Canada’s Charter of Rights and Freedoms.
The Superior Court of Justice of Ontario dismissed the Applicants’ challenge. It found that while the oath violated the right to freedom of expression by compelling the Applicants to affirm allegiance to the Queen, it was a reasonable limitation permissible under Section 1 of the Charter.
Subsequently, the Applicants appealed the dismissal to the Court of Appeal for Ontario.
Justice Weiler delivered the opinion of the Court. The Court considered whether the oath violated the Appellants’ freedom of expression under Section 2(b) of Canada’s Charter of Rights and Freedoms.
The Applicants argued that the Court should utilize the ‘plain language’ method of interpretation when both evaluating the meaning of the oath, and considering its constitutionality. The Court, however, rejected this argument, reasoning that the approach fails to incorporate the ‘purposive approach’ adhered by the Supreme Court of Canada, upon which the history, purpose, and intention behind the law is also taken into consideration.
By using the purposive approach, the Court rejected the Applicants’ claim that the allegiance to the Queen of Canada connotes the British ethnic dominance in country. Rather, the Court interpreted that the oath to the Queen is “an oath to [Canada’s] form of government, as symbolized by the Queen as the apex of [the] Canadian parliamentary system of constitutional monarchy.”
The Court then proceeded to see whether the oath violated the Applicants’ freedom of expression. They contended that affirming allegiance to the Queen compels them to convey a message with which they disagree, and it would adversely affect their ability in abolishing the monarchy in future.
The Court utilized an analytical approach outlined by the Supreme Court of Canada, when dealing with an alleged violation of one’s freedom of expression. Under this approach, it must be determined: 1) whether the activity being forced upon is a form of expression; 2) whether the law aims at controlling expression. If the purpose is not to control expression, then the complainant bears the burden of showing that the law has an adverse effect on expression.
First, the Court concluded that taking the citizenship oath is a form of expression because it obligates individuals to swear or affirm allegiance. Second, the Court found that the underlying purpose of the oath is not to control a form of expression. Rather, its purpose is “to inquire into prospective citizens’ willingness to accept the rights and responsibilities of citizenship.”
Lastly, the Court agreed with the Superior Court’s ruling that the oath has the incidental effect of compelling the prospective citizens to express certain words in order to obtain citizenship status. However, the Court ruled that such incidental effect does not warrant the oath as unconstitutional mainly because affirming allegiance to the Queen of Canada is a symbolic reference to the form of government, and it furthers the broader public interest.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this decision, the Court of Appeal for Ontario recognized that taking oath for citizenship has the incidental effect of compelling the prospective citizens to express certain opinions. However, it is a reasonable limitation on freedom of expression because it furthers the broader public interest, and its purpose is not to control a form of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
“Everyone has the freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”
The Supreme Court of Canada in this case established a two-step process to see whether a law violates the freedom of expression guaranteed under Article 2(b) of the Canadian Charter of Rights and Freedoms.
Case significance refers to how influential the case is and how its significance changes over time.
The case was decided by the Court of Appeal for Ontario, the highest court in the Ontario. All of its decisions are binding on all lower courts in the province.
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