Bill C-8: An Act to amend the Citizenship Act (Truth and Reconciliation Commission of Canada’s call to action number 94)
Tabled in the House of Commons, December 10, 2020
Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.
A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.
A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.
The Minister of Justice has examined Bill C-8, An Act to amend the Citizenship Act, for inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.
What follows is a non-exhaustive discussion of the ways in which Bill C-8 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.
The preamble of the Bill considers that the Constitution Act, 1982 recognizes and affirms the Aboriginal and treaty rights of First Nations, Inuit and Métis peoples. The preamble also sets out the commitment of the Government of Canada to respond to the Truth and Reconciliation Commission’s call to action number 94 to include in the oath of citizenship a solemn promise to faithfully observe the laws of Canada including Treaties with Indigenous Peoples.
Oath or Affirmation of Citizenship
Clause 1 of Bill C-8 would replace the current schedule in the Citizenship Act to include, in the oath or affirmation of citizenship, a solemn promise to respect the Aboriginal and treaty rights of First Nations, Inuit and Métis peoples. The oath or affirmation would require those persons taking it to observe faithfully the laws of Canada, including the Constitution, which recognizes and affirms the Aboriginal and treaty rights of First Nations, Inuit and Métis peoples. The remainder of the oath or affirmation would remain unchanged.
Section 15 of the Charter
Amending the oath or affirmation of citizenship to include a solemn promise to respect the Aboriginal and treaty rights of First Nations, Inuit and Métis peoples promotes the values that underpin equality rights protected under subsection 15(1) of the Charter. Subsection 15(1) provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, including on the basis of race and ethnic origin. The proposed oath or affirmation promotes respect and helps to foster reconciliation with Indigenous peoples as a response to the Truth and Reconciliation Commission’s call to action number 94. The proposed oath or affirmation is consistent with the core values that underpin section 15 and the Charter generally.
Section 2(b) of the Charter
Amending the oath or affirmation of citizenship to include a solemn promise to respect the Aboriginal and treaty rights of First Nations, Inuit and Métis peoples may engage freedom of expression under section 2(b) of the Charter. Section 2(b) provides that everyone has the following fundamental freedoms: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. The requirement to take the oath or affirmation in order to become a citizen may be considered to be compelled expression.
The following considerations support the consistency of the proposed oath or affirmation of citizenship with freedom of expression. The validity of the citizenship oath has been previously upheld against a constitutional challenge under section 2(b) of the Charter. Although the requirement to take the oath or affirmation compels expression, its purpose is not to control it but rather to affirm Canada’s social values and constitutional architecture, which promote and protect expression. Even after reciting the oath or affirmation, the citizenship applicant remains free to express different views to those expressed in the oath or affirmation.
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