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ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHARLES C. ROACH
Applicant
-
and-
HER MAJESTY QUEEN ELIZABETH II
represented by
THE ATTORNEY GENERAL OF CANADA
Respondent
APPLICATION
1.
This action is brought
by Charles Roach as plaintiff, on his own behalf and on behalf
of a class of people similarly situated, seeking injunctive and
declaratory relief, requiring the defendant to observe the
fundamental freedoms and rights of the eligible applicants and
desist from coercing them to take an oath that is against their
conscience and implement administrative relief to the victims
from coercion of conscience including, but not limited to:
1.1.
An Order that the oath
or affirmation contained in s. 24 of the Citizenship Act,
R.S. 1985, c. C-29 violates sections 2(a), 2(b), 2(d) and 15(1)
of the Canadian Charter of Rights and Freedoms (the
“Charter) and does not constitute a reasonable limit under s. 1
of the Charter, and are therefore of no force and effect.
1.2.
a declaratory judgment
that the Applicants be entitled to an exemption from the
requirement of taking the citizenship oath or affirmation with
the words “and be faithful to Her Majesty the Queen Elizabeth
the Second, Queen of Canada, her Heirs and Successors.”
1.3.
For a preliminary and
permanent injunction restraining the Defendants from withholding
the applicants grant of citizenship on the ground that they
choose not to take the oath or affirmation;
1.4.
Such further or other
relief as to this Honourable Court deems just.
2.
The grounds for the
application are:
2.1.
The Applicant, Charles
C. Roach, is a barrister and solicitor who resides in the City
of Toronto in the Province of Ontario.
2.2.
The Applicant is a
permanent and lawful resident of Canada and has lived in
continuously in Canada for more than fifty years. He served in
the Canadian Armed Forces in 1956, 1957 and 1958.
2.3.
The Applicant has four
adult children who were born in Canada and who are Canadian
citizens. The said children of the Applicant have attained full
political rights and have not had to take the citizenship oath.
2.4.
As a British subject
in Canada, the Applicant, on becoming a landed immigrant in
Canada, enjoyed the full rights of a citizen for many years.
2.5.
These full rights
included the right to stand for public office, the right to
vote, the right to be employed as a public employee and
generally, the right to enjoy all the benefits of a Canadian
citizen.
2.6.
Starting in about 1977
and thereafter, the relevant laws were changed so that he was
retrospectively stripped of the aforesaid rights;
2.7.
At the present time,
the Applicant does not enjoy the right to stand for public
office or the right to vote in federal, provincial or municipal
elections, and the right to be employed as a public employee.
2.8.
The Applicant has not
been allowed to become a Canadian citizen.
2.9.
The Applicant applied
for, and is eligible for, Canadian citizenship.
2.10.
The Applicant has
attempted to seek exemption from taking the oath or affirmation
in its present form from the Defendant and various responsible
government ministries without success.
2.11.
The Applicant has also
requested of two citizenship judges that he be relieved of
taking the oath or affirmation insofar as it requires him to
swear to “be faithful to Her Majesty Queen Elizabeth the Second,
Queen of Canada, her Heirs and Successors.” But the said
citizenship judges informed him that the oath or affirmation
would not be administered to him without the inclusion of those
particular words.
3.
The Applicant takes
issue with the form, content and religious character of the
oath. Specifically, the Applicant objects to the making of any
commitment of loyalty or allegiance to Her Majesty the Queen
Elizabeth II her heirs and successors that is binding on his
conscience, whether that commitment be evinced by way of oath or
affirmation.
4.
The Applicant is
willing to take a modified affirmation to be a loyal Canadian
citizen, to obey the laws of Canada and to fulfill his
citizenship duties.
5.
The Applicant believes
that a public oath is the most solemn rite and that its terms
must be faithfully observed. However, the citizenship oath in
its present form violates his Charter rights in the following
ways:
5.1.
Section 2(a)
guarantees freedom of conscience and protects the rights of
individuals to hold views based on strongly held moral ideas of
right and wrong. The Applicant holds such a view which prevents
him from swearing or affirming allegiance to the Her Majesty
Queen Elizabeth II, her Heirs and Successors.
5.2.
The Applicant seeks to
celebrate and enjoy his culture, heritage and historical
traditions; taking of the citizenship oath in its present form
is anathema to the celebration of his heritage;
5.3.
Further, the
requirement to declare allegiance to the future heirs and
successors of Her Majesty Queen Elizabeth II, requires
oath-takers to blindly bind themselves to all future policies of
the monarchy, an equally repugnant requirement.
5.4.
section 2(b)
guarantees freedom of thought, belief, opinion and expression
and protects individuals from being compelled into making
statements contrary to their personal beliefs and opinions. The
oath in its current form forces the Applicant into expressing
fealty to the monarchy, an institution that he has strong moral
convictions against supporting. The continued existence of a
monarchy system violates his passionate belief against racial
superiority and in the equality of all human beings. The oath,
therefore, is a state-compelled violation of his freedom of
expression. Taking the oath would have the effect of hindering
the Applicant for the rest of his life from freely expressing
his sentiments regarding republicanism. Additionally, the
current oath forces the Applicant into a law-imposed choice
between remaining faithful to his spiritual and political
beliefs or hypocritically taking the oath to gain the
opportunity to enjoy Canadian citizenship.
5.5.
The said oath is a
pledge to the person who is head of state and not to the state
itself; the symbol of the head of state is so integrally
identified with the Windsor family and privilege by birth that
it offends the applicants commitment to values of equal dignity
and equal liberty.
5.6.
Section 2(d) of the
Charter guarantees freedom of association. The Applicant,
upon taking the oath in its present form, would be barred from
joining any republican associations or participating in any
republican rallies or meetings. The curtailment of collective
opposition and incentive for change that results from demanding
loyalty to a particular theory strikes at the very heart of
democracy and breached s. 2(d) of the Charter.
5.7.
Section 15 guarantees
that every individual is equal before and under the law inasmuch
as it requires permanent residents who are naturalized Canadian
citizens to have taken the said oath in order to attain full
political rights, while the law does not require persons born
in Canada to take the aforesaid oath in order to attain full
political rights.
6.
The Plaintiff
commences this action as representative plaintiff on behalf of
the members of that class of persons with common issues of fact
and law pursuant to the Class Action Proceedings Act RSO 1992,
1992, c. 6, s. 5 (1).
7.
The members of the
said class of applicants have different ethnic and national
backgrounds but each is eligible for a grant of citizenship and
each objects to having to take the said oath or affirmation on
the grounds of violation of their Charter Right to
freedom of conscience inter alia.
8.
The Plaintiff is able
to advance this proceeding on behalf of the class and does not
have, on the common issues for the class, an interest in
conflict with the interests of other class members.
9.
The following
documentary evidence will be used at the hearing of this
application:
9.1.
The affidavit of
Charles Roach to be filed
9.2.
Sundry affidavits
from class participants, to be filed;
9.3.
Such further and
other evidence counsel may advise and this Honourable Court may
permit.
Dated at Toronto, Wednesday,
December 07, 2005
__________________________________
ROACH, SCHWARTZ & ASSOCIATES
Barristers and Solicitors
688
St. Clair Avenue West
Toronto, Ontario M6C 1B1
Tel:
(416) 657-1465
Fax:
(416) 657-1511
Solicitor for the Applicant
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