T-388-79
In re Citizenship Act and in re Werner Willi
Peter Heib (Appellant)
Trial Division, Collier J.—Victoria, May 18; Van-
couver, June 13, 1979.
Citizenship — Appellant was denied grant of citizenship by
Citizenship Judge because of his refusal to subscribe to oath
of allegiance in form specified — Appellant met all other
requirements for citizenship — Whether or not appellant is
required to take oath of allegiance in form set out in order to
become a citizen — Citizenship Act, S.C. 1974-75-76, c. 108,
ss. 3, 5(1),(3), 11, 23, Schedule — Citizenship Regulations,
SOR/77-127, ss. 19(1),(2), 20.
Although the appellant met all the requirements of section
5(1) of the Citizenship Act, he was denied his grant of citizen
ship by a Citizenship Judge because he refused to subscribe to
the oath of allegiance. The Citizenship Judge held that an
applicant for citizenship must be prepared to take the oath in
the form specified. The issue is whether or not the appellant is
required to take the oath in the form set out.
Held, the appeal is dismissed. Although there is no specific
provision in the statute, as distinguished from the Regulations,
that a person seeking a grant of citizenship must take the oath,
there is a strong implication of such a requirement. Even
though the appellant has complied with everything set out in
section 5(1) of the Act, and even though that section provides
that the Minister "shall", on application, then grant citizenship,
section 3(1)(c) indicates that a grant does not make the appel
lant a citizen unless he takes the designated oath. The Citizen
ship Regulations make it clear that a person who has been
granted citizenship pursuant to section 5(1) of the Act must
nevertheless subscribe to the oath of citizenship. On reading the
statute and the Regulations as a whole, there is a binding
requirement in respect of the prescribed oath.
APPEAL.
COUNSEL:
J. S. Carfra, amicus curiae.
SOLICITORS:
J. S. Carfra, c/o Jones, Emery & Carfra,
Victoria, amicus curiae.
The following are the reasons for judgment
rendered in English by
COLLIER J.: The appellant is 39 years old. He
came from West Germany to Canada in 1961. He
has lived and worked here ever since. He married a
Canadian citizen here. He intends to stay here. He
considers this country his home.
On August 25, 1978, he applied for a grant of
citizenship.
At the time he made his application, he indicat
ed he did not wish to take the oath of allegiance in
the form it appears in the Schedule to the Citizen
ship Act. He did not object to taking some other
kind of oath. On November 27, 1978 his applica
tion for a grant of citizenship came before a
Citizenship Judge. At that hearing he again stated
his objections to the prescribed oath. But he com
plied, in all other respects, with the requirements
of the statute.
The Citizenship Judge did not approve the
appellant's application. Her reasons were that an
applicant, such as the appellant, must be prepared
to take the oath in the form specified.
This appeal followed.
The appellant, accompanied by his wife,
appeared in person. Mr. J. S. Carfra acted as
amicus curiae. Mr. Carfra was very helpful.
Mr. Heib is a layman—a machinist. So far as I
can tell, he would make an excellent citizen. He
made an affecting and able plea. He said he could
have, at the hearing before the Citizenship Judge,
taken the designated oath, but with mental reser
vations. His conscience, however, would not allow
him to do that. He interprets the oath as a binding
promise by him to bear allegiance to a living
person, Queen Elizabeth, and to her successors. He
says he cannot bring himself to swear allegiance to
any living person. He would have no hesitation in
swearing allegiance to this country, or to its flag.
Mr. Carfra before the hearing of this appeal,
and I during it, discussed with Mr. Heib the
philosophical aspects of the oath of allegiance. We
suggested, the oath can be regarded, not as a
promise to a particular person, but as a promise to
the theoretical political apex of our Canadian par
liamentary system of constitutional monarchy. I
need not set out the details of the discussion. Mr.
Heib obviously understood, and respected, the
points of view suggested to him. But he could not,
in his conscience, adopt them. I respect and salute
him for his convictions.
The issue before me is whether the appellant is
required to take the oath in the form set out. My
answer is "Yes". There is a further consideration:
whether there can be any waiver, or other relief
given? My reluctant answer is "No".
The new Citizenship Act' is not, I suggest, as
clear as it might be in respect of the requirement
of an oath of allegiance.
I propose to examine portions of the statute and
the Regulations.
The appellant applied for a grant of citizenship
under subsection 5(1) of the statute:
5. (I) The Minister shall grant citizenship to any person
who, not being a citizen, makes application therefor and
(a) is eighteen years of age or over,
(b) has been lawfully admitted to Canada for permanent
residence, and has, within the four years immediately preced
ing the date of his application, accumulated at least three
years of residence in Canada calculated in the following
manner:
(i) for every day during which he was resident in Canada
before his lawful admission to Canada for permanent
residence he shall be deemed to have accumulated one-half
of a day of residence, and
(ii) for every day during which he was resident in Canada
after his lawful admission to Canada for permanent resi
dence he shall be deemed to have accumulated one day of
residence;
(c) has an adequate knowledge of one of the official lan
guages of Canada;
(d) has an adequate knowledge of Canada and of the respon
sibilities and privileges of citizenship; and
(e) is not under a deportation order and is not the subject of
a declaration by the Governor in Council made pursuant to
section 18.
The appellant met all those requirements.
I also set out subsection 5(3):
5....
(3) The Minister may, in his discretion, waive on compas
sionate grounds,
(a) in the case of any person, the requirements of paragraph
(I)(c) or (d); and
(b) in the case of any person under a disability, the require
ment respecting age set forth in paragraph (l)(a), the
requirement respecting length of residence in Canada set
forth in paragraph (1)(b) or the requirement that the person
take the oath of citizenship.
The waiver powers, there given to the Minister
in respect of a person under a disability, are
!S.C. 1974-75-76, c. 108.
directed to some of the pre-requisites, specified in
subsection 5(1), before citizenship can be granted.
But there is no requirement, in subsection 5(1),
that an applicant take the oath of citizenship. One
must look elsewhere.
Paragraph 3(1)(c) of the statute seems to con
template two things: A grant of citizenship pursu
ant to section 5 or section 10, 2 and the taking of an
oath. In those circumstances, an applicant then
"is" a Canadian citizen. The section appears to
distinguish between the status of a person with a
grant of citizenship, and those with the status of a
"citizen".
I now set out section 11:
11. (1) Subject to any regulations made under paragraph
26(i), the Minister shall issue a certificate of citizenship to any
citizen who has made application therefor.
(2) Where an application under section 5 or 7 or subsection
10(1) is approved, the Minister shall issue a certificate of
citizenship to the applicant.
(3) A certificate issued pursuant to this section does not take
effect until the person to whom it is issued has complied with
the requirements of this Act and the regulations respecting the
oath of citizenship.
Where an application, such as that made by the
appellant, is approved, a certificate of citizenship
shall issue. But it does not take effect until the
applicant "has complied with the requirements of
this Act and the regulations respecting the oath of
citizenship".
Finally, I set out section 23, and the oath there
referred to:
23. Where a person is required under this Act to take the
oath of citizenship, he shall swear or affirm in the form set out
in the schedule and in accordance with the regulations.
SCHEDULE
OATH OR AFFIRMATION OF CITIZENSHIP
I swear (or 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 and
that I will faithfully observe the laws of Canada and fulfil my
duties as a Canadian citizen.
2 I confine my comments, in respect of section 3, to non-citi
zens, or former citizens, who apply for a grant of citizenship.
Nowhere in the statute itself, as distinguished
from the Regulations, is there a specific provision
a person seeking a grant of citizenship, or resump
tion of citizenship, must take the oath. There is,
however, because of the sections I have referred to,
a strong implication of such a requirement.
It is instructive to compare some of the provi
sions of the former Act. 3
Under that legislation, a non-citizen could apply
to the Minister for a grant of a certificate of
citizenship. The applicant had to meet certain
requirements (see, for example, subsection 10(1)).
That subsection further required, in paragraph (f),
the following:
10. (1)...
(J) he has an adequate knowledge of the responsibilities and
privileges of Canadian citizenship and intends to comply with
the oath of allegiance set forth in Schedule II; ...
Section 12 further provided that a certificate of
citizenship granted by the Minister did not take
effect until the oath was taken. Nor did the appli
cant become a Canadian citizen until the oath was
taken:
12. A certificate of citizenship granted to any person under
this Part, other than to a minor under the age of fourteen years,
shall not take effect unless that person has taken the oath of
allegiance set forth in Schedule II, and that person shall
become a Canadian citizen upon the granting to him of the
certificate of citizenship or on his, taking the oath of allegiance,
whichever later occurs.
Section 32 was very clear:
32. When a court decides that an applicant for a certificate
of citizenship is a fit and proper person to be granted such a
certificate, or the Citizenship Appeal Court reverses the deci
sion of a court in respect of an application, a certificate of
citizenship, may, in the discretion of the Minister, be granted to
the applicant and the certificate shall be delivered to the
applicant and the oath of allegiance taken by him as prescribed
by regulation.
The predecessor statute was, to my mind, much
more explicit as to the oath of allegiance
requirement.
I turn now to the Regulations made under the
present Act [SOR/77-127]. Paragraph 26(h) of
3 Canadian Citizenship Act, R.S.C. 1970, c. C-19,
the statute empowers the Governor in Council to
make regulations "respecting the taking of the
oath of citizenship". I set out subsections 19(1)
and (2), and section 20 of the Regulations:
Oath of Citizenship
19. (1) Subject to subsection 5(3) of the Act and section 22
of these Regulations, a person who has been granted citizenship
under subsection 5(1) of the Act shall take the oath of citizen
ship by swearing or affirming it before a citizenship judge.
(2) Unless the Minister otherwise directs, the oath of citi
zenship referred to in subsection (1) shall be taken at a
citizenship ceremony.
20. (1) Subject to subsection 5(3) of the Act and section 22
of these Regulations, a person who is fourteen years of age or
over on the day that he has been granted citizenship under
subsection 5(2), 5(4) or 10(1) of the Act shall take the oath of
citizenship by swearing or affirming it
(a) if in Canada, before a citizenship judge; or
(b) if in a country other than Canada, before a foreign
service officer.
(2) Where a person is to take the oath of citizenship pursu
ant to subsection (1), the Registrar shall
(a) if the oath is to be taken in Canada, forward a certificate
of citizenship to a citizenship officer of a citizenship court
that he considers appropriate in the circumstances, or
(b) if the oath is to be taken in a country other than Canada,
forward a certificate of citizenship to a foreign service officer
in that country
and the citizenship officer or foreign service officer shall notify
the person of the date, time and place at which he is to appear
and take the oath of citizenship.
Those Regulations make it clear, in my view,
that a person who has been granted citizenship
pursuant to subsection 5(1) of the Act, must
nevertheless subscribe to the citizenship oath.
I am satisfied, on reading the statute and Regu
lations as a whole, there is a binding requirement
in respect of the prescribed oath.
The appellant could be, as I see it, in a some
what anomalous situation. He complies with every
thing set out in subsection 5(1) of the legislation.
The Minister, then "shall", on application, grant
citizenship. But any grant does not make Mr.
Heib, unless he takes the designated oath, a citizen
(see paragraph 3(1)(c)):
PART I
THE RIGHT TO CITIZENSHIP
3. (1) Subject to this Act, a person is a citizen if
(a) he was born in Canada after the coming into force of this
Act;
(b) he was born outside Canada after the coming into force
of this Act and at the time of his birth one of his parents,
other than a parent who adopted him, was a citizen;
(c) he has been granted or acquired citizenship pursuant to
section 5 or 10 and, in the case of a person who is fourteen
years of age or over on the day that he is granted citizenship,
he has taken the oath of citizenship;
(d) he was a citizen immediately before the coming into
force of this Act; or
(e) he was entitled, immediately before the coming into
force of this Act, to become a citizen under paragraph
5(1)(b) of the former Act.
In summary then, on the main issue, I affirm
the decision of the Citizenship Judge. The appel
lant must take the oath in the form in which it
appears. Failing the taking of the oath, he cannot
become a citizen of Canada as provided in subsec
tion 3(1) of the new Act.
I also agree with the Citizenship Judge the
waiver provision by the Minister, earlier set out,
does not apply to the appellant. Mr. Heib agrees.
He is not a person under a disability.
The Citizenship Judge chose not to make a
favourable recommendation in respect of subsec
tion 5(4) of the statute:
5....
(4) In order to alleviate cases of special and unusual hard
ship or to reward services of an exceptional value to Canada,
and notwithstanding any other provision of this Act, the Gover
nor in Council may, in his discretion, direct the Minister to
grant citizenship to any person and, where such a direction is
made, the Minister shall forthwith grant citizenship to the
person named in the direction.
I, too, make no recommendation. It may be the
appellant himself can request the Governor in
Council to direct the Minister to grant him, in the
circumstances here, citizenship.
DECISION
On appeal by the appellant, dated January 3,
1979, from the decision of Her Honour Frances H.
Elford, Citizenship Judge, pronounced November
28, 1978 whereby the said Citizenship Judge did
not approve the appellant's application for a grant
of citizenship; And this appeal having been heard
at Victoria, B.C. on May 18, 1979.
THIS COURT ORDERS AND ADJUDGES that the
appeal be dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.