The Swearing Show

Niqabs at citizenship oath swearing ceremonies are a big deal. Not really a big deal, mind you, because, as Radio-Canada reports, according to Citizenship and Immigration Canada, there have been exactly two women since 2011 who refused to go through with the oath because of the ban on the niqab which the government had illegally decreed. But politically a big deal. Yet while the niqab and the citizenship oath are the hot new celebrity couple of Canadian politics, all the attention is focused on the niqab, even though all that there was to say about it has already been said some time ago, by Emmett Macfarlane and by Tabatha Southey. If there was anything left to add, Andrew Coyne has added it. The oath, for its part, languishes in obscurity. I would like to remedy that.

You might think that focusing on the oath is a waste of time; that it is only a pretext for the Conservatives to score some political points by attacking the infinitesimal minority of Muslim women who wear the niqab. But why was this particular pretext chosen? After all, the same party is apparently uninterested by banning niqabs from the polling stations ― and yet you’d think that this would be at least as much of a bigot-vote-winner as banning them from citizenship oath ceremonies. So I think it is worth asking what is special about the oath.

There are two ways of seeing the citizenship oath. One is presented in the judgments of the Ontario courts that have upheld its reference to the Queen against a constitutional challenge by some anti-Monarchists who refused to swear “true allegiance” to Elizabeth II, her heirs and successors. The persons challenging the oath argued that the Queen symbolized inequality, privilege, and oppression. Not so, held the Superior Court of Justice in McAteer et al. v. Attorney General of Canada, 2013 ONSC 5895: “the oath to the Queen is in fact an oath to a domestic institution that represents egalitarian governance and the rule of law.” [65] For its part, the Court of Appeal for Ontario, in McAteer v. Canada (Attorney General), 2014 ONCA 578, held that the oath represented “a symbolic commitment to our form of government and the unwritten constitutional principle of democracy.” [62]

As I explained in a paper arguing that, contrary to the courts’ findings, the citizenship oath is indeed an unconstitutional violation of freedom of conscience, the other way of seeing the Canadian citizenship oath, as all loyalty oaths, is as an expression of the state’s fear of its new citizens’ disloyalty. I wrote that

if there is an implicit logic that can justify imposing the oath of allegiance on all would-be naturalized citizens, it is that they are all people whose commitment to Canada is doubtful (their decision to seek Canadian citizenship notwithstanding!), if not potential traitors. (158)

Otherwise, why is the oath even necessary? The government and the courts never answered this question (in part, one must admit, because the people challenging the oath did not dare ask it ― they accepted the principle of the oath unquestioningly).

To me at least, the role that the citizenship oath has come to play in the niqab controversy suggests that my jaundiced view of the oath is closer to reality than the courts’ optimistic one. If the oath were about equality, it would not be seen as an opportunity for singling out a minuscule unpopular group for legal retribution and public opprobrium. If it were about the Rule of Law, it would not be the occasion for bending legal procedures and ignoring legal advice in order to score political points. If it were about respecting our form of government, it would not be the scene of a blatant violation of the Canadian Charter of Rights of Freedoms. On the other hand, if what the oath really represents is a fear of the outsiders, of those who are different ― whether they think differently (like the anti-Monarchists) or dress differently (like the women who wear the niqab) ― and who are therefore said to stand against Canadian values and deemed disloyal despite the absence of any evidence of their disloyalty, then it makes a lot of sense for the oath to be treated in these ways.

We would do well, I submit, to ask ourselves again why exactly it is that we need an oath of citizenship. Mr. Coyne writes that “[n]o one else’s life is made the poorer because, somewhere in Canada, a women is swearing allegiance to this country with her face covered.” Nor are anyone’s rights infringed. That is true of course. But the same thing would be true if one simply became a citizen upon having satisfied a citizenship judge that one has met the legal requirements. The theatre of the oath-swearing can be dispensed with. The actors do not even understand their lines, and now we’re fighting over their costumes too. There are other shows in town more deserving of everyone’s time and attention.

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