Judge:  Addy J.

 

Counsel:  W.G. How, Q.C., for appellant.

F. Chenoweth as amicus curiae.

 

Subject:  Immigration

 

Aliens, Immigration and Citizenship — Citizenship — Requirements for grant of citizenship — Miscellaneous requirements.

 

Citizenship appeal — Appellants stating they will take oath of allegiance only under reservation that they would not participate, directly or indirectly, in any war effort — Canadian Citizenship Act, R.S.C. 1970, c. C-19, s. 10(1)(f) — Canadian Bill of Rights, S.C. 1960, c. 44 — Freedom of Religion Act, S.C. 1851, c. 175.

 

Appellants, people of deep religious faith who would otherwise be highly suitable candidates for citizenship, stressed that, in taking the oath of allegiance, they would do so only under the reservation that, even if required by law, they would categorically refuse to take part in, or contribute, directly or indirectly, to any war effort. Their application was refused, and they appealed.

 

Held, the appeal is dismissed. Section 10(1)(f) of the Canadian Citizenship Act requires that the Court be satisfied that the applicant intends to comply with the oath of allegiance requiring allegiance to the Queen, faithful observance of Canada's laws, and fulfillment of duties of citizenship. The Court is not prepared to declare that the law has changed to the extent that a citizen is not obliged to faithfully contribute directly to the prosecution of a war in which Canada may be engaged because he objects to war on moral or religious grounds. To come to the aid of one's country in time of war and to help bring about the defeat of its enemies has, from the beginning of our history, been regarded as one of the most fundamental, important and basic duties of a subject, and the Court is convinced that such duty continues to exist, and will do so until changed by Parliament.

 

In re Almaas, [1968] 2 Ex.C.R. 391, distinguished. Girouard v. United States (1945) 328 U.S. 61, discussed.

 

Citizenship appeal.

 

The following are the reasons for judgment rendered in English by Addy J.:

 

1     The appellants in these two appeals from the Citizenship Court, which refused to grant citizenship, are married to each other and are both represented by the same counsel. At the opening of the hearing, he moved that both appeals be heard together on common evidence. The motion was granted.

 

2     Both parties testified and the husband also called another witness. The wife, who testified last, adopted as her own all of the views, religious convictions and statements of the husband with the exception of one minor matter to which I shall refer later.

 

3     They come from Denmark, having immigrated here in 1955, and have seven children who were all present in Court during the hearing.

 

4     Both appellants impressed me as being good, honest people with a deep religious faith which they translate into action in their daily lives. They are members of the movement known as Jehovah's witnesses, the husband being an ordained minister of that faith. He fulfills his duties as a minister without remuneration of any kind. He is a painter by trade and has apparently made a financial success of it. Both he and his wife are apparently strong believers in the work ethic and have never taken advantage of the social benefits provided for in our society. They are both interested in helping their fellow man and in preserving family ties and the sanctity of marriage and they are so motivated by reason of their faith. It was amply demonstrated how they, with some degree of success, constantly seek to rehabilitate alcoholics and other persons who, in their view, have strayed from the path of righteousness. Their children are exceptionally clean-cut and alert and the family from all appearances is a model one.

 

5     As to the suitability of the appellants as citizens in time of peace, I entertain not the slightest doubt or reservation, even though they profess that their faith precludes them from taking part or being interested in politics or political activity of any kind. Lack of willingness to participate in politics or to exercise the right to vote, through religious conviction, is not a reason to refuse citizenship if there is a true willingness to obey the laws of the country and carry out the normal duties of a law-abiding Canadian citizen.

 

6     The difficulty in the present case arises out of the insistence of the appellants that they would not take part either directly or indirectly in the prosecution of any war.

 

7     When questioned on this point, the husband stated that in taking the oath of allegiance he would be doing so under the strict reservation that, even if required to do so by law,

 

(1) he would refuse to be a member of the Armed Forces even in an entirely non-combatant role such as that of a stretcher bearer employed solely in picking up casualties on the battlefield or in treating the wounded;

 

(2) he would refuse to be employed in any way in any factory or plant involved in the manufacture of weapons, ammunitions or war materials of any kind. He would refuse, for instance in his capacity as a painter, to paint a cannon. He stated, however, that he would not refuse to paint the windows of any factory manufacturing cannon as he believed that this might be sufficiently remote from any war effort, although his wife made a specific point of stating that she would refuse to do so;

 

(3) in his view, there has never been a just war since the wars of the Old Testament where Jehovah ordered His people, the Israelites, to fight for Him. He also maintains that there can never be under any circumstances a just war in the future. He will therefore refuse categorically to take part in or to contribute to any war effort. Even if Canada were invaded in a non-provoked attack by an enemy, he would refuse to take part in any way whatsoever in the defence of Canada or in the prosecution of the war effort for two reasons:

 

(i) because he believes that all wars are intrinsically evil, and

 

(ii) that nations as well as individuals must, as nations, strictly follow the teaching of Jehovah and return good for evil.

 

8     There can therefore be no question of legitimate self-defence.

 

9     Section 10(1)(f) of the Canadian Citizenship Act states that the Court must be satisfied that the applicant intends to comply with the oath of allegiance, the text of which is set out in Schedule II of the Act. The oath, in addition to requiring allegiance to The Queen, requires the applicant to undertake to faithfully observe the laws of Canada and to fulfill his duties as a Canadian citizen.

 

10     One need not return to the days of the crusades to find firmly implanted in our laws the very basic principle that an oath of allegiance always includes a pledge to bear arms in defence of the realm. This service on the part of every subject or citizen has always been considered a very solemn, fundamental and important if not a sacred duty, the breach of which leads to the severest of penalties.

 

11     In very recent years, because of the increasing recognition, which a few countries of the Western World afford to the religious beliefs and moral convictions of individuals even where these beliefs come into conflict with certain objectives of the State, there has developed a certain reluctance to forcibly impose the obligation to bear arms, where it is clearly against the subject's moral convictions or religious beliefs. By the same token the status of conscientious objector has lost its social stigma and some states have created an exception for this category of individual from the duty normally imposed on every able-bodied citizen to take up arms in time of war.

 

12     This trend is evident in society in the United States and in Canada and has been reflected in certain court decisions.

 

13     In the United States, all decisions of its Supreme Court, until the case of Girouard v. United States[FN1] had held that there was imposed by the Constitution of that country on every one of its citizens the implied legal duty to bear arms and take part as an active combatant in any conflict in which the country may become involved. Persons who, on religious grounds or for moral considerations or otherwise, refused to recognize the existence of this solemn duty were refused citizenship.

 

14     The Girouard case, supra, reversed these previous decisions and held that there was no such implied duty under the Constitution. It is extremely important to note however that the Girouard case specifically recognized that the State has the right to impose such a duty and to note also that the decision was strictly limited to the question of the obligation of a United States' citizen to bear arms; it in no way suggested that a citizen would not be obliged to perform a non-combatant role in the prosecution of any war effort. In the Court's reasons we find the following statement at page 64:

 

The bearing of arms, important as it is, is not the only way in which our institutions may be supported and defended, even in times of great peril. Total war in its modern form dramatizes as never before the great cooperative effort necessary for victory. The nuclear physicists who developed the atomic bomb, the worker at his lathe, the seamen on cargo vessels, construction battalions, nurses, engineers, litter bearers, doctors, chaplains — these, too, made essential contributions. And many of them made the supreme sacrifice. Mr. Justice Holmes stated in the Schwimmer case (279 U.S. p. 655) that "the Quakers have done their share to make the country what it is." And the annals of the recent war show that many whose religious scruples prevented them from bearing arms, nevertheless were unselfish participants in the war effort. Refusal to bear arms is not necessarily a sign of disloyalty or a lack of attachment to

our institutions. One may serve his country faithfully and devotedly, though his religious scruples make it impossible for him to shoulder a rifle. Devotion to one's country can be as real and as enduring among non-combatants as among combatants. One may adhere to what he deems to be his obligation to God and yet assume all military risks to secure victory.

 

15     In Canada, the only case on this subject appears to be the more recent decision of Kerr J., formerly of this Court when he was a judge of its predecessor Court, the Exchequer Court of Canada, namely in the case of In the matter of Bjarne Almaas[FN2] . Kerr J. in that case was dealing also with the oath of allegiance and with the same provisions of the Canadian Citizenship Act as in the case at bar. He held that the oath of allegiance as worded in the Act did not impose on a person taking it the obligation to become a member of the Armed Forces.

 

16     Without commenting on whether I would agree with that finding, I wish to emphasize that the specific issue in the case was whether there was a duty to join the Armed Forces and not with a total refusal to participate in any way in an activity which would contribute directly to the prosecution of a war, such as in the present case. Furthermore, the decision purports to be founded on the same general principles regarding what is required of a good citizen as those stated in the Girouard case, supra.

 

17     In his decision in the Almaas case the learned Judge states at page 398:

 

In considering in connection with the appeals before this Court the decisions of the Supreme Court of the United States one must bear in mind that they relate to the laws of that country and that the qualifications for citizenship and the form of the oath of allegiance there are expressed differently from the corresponding qualifications and oath of allegiance in Canada; but I do not think that there is a significant difference in the principles and the concept of good citizenship upon which the respective laws are based. [The underlining is mine.]

 

18     Notwithstanding the above statement, it is important to note that in the Almaas case no attempt seems to have been made to deal with the distinction between serving in the Armed Forces in a combatant role and serving in a non-combatant role such as clearly was done in the Girouard case. Reference is made to the previously quoted paragraph in the Court's decision in the latter case. It, in effect, states that a conscientious objector would not be excused from performing any non-combatant role in a war whether as a member of the Armed Forces or not.

 

19     It is trite to say that where a legal duty is imposed, the principle of freedom of worship as recognized by our law does not imply the right to subordinate that duty to any religious belief. Although the common law has always recognized the supremacy of God and, although that principle is now enshrined in the preamble of the Canadian Bill of Rights[FN3] , the common law does not grant nor does the Canadian Bill of Rights give to any citizen the right to invoke his own interpretation of the will of God, or of any of His precepts, as a valid motive for avoiding the duties of a citizen as they are defined and imposed by the state and it matters not whether the interpretation originates from the individual himself or from the precepts of a recognized religion.

 

20     It is clear that the Freedom of Religion Act[FN4] invoked by counsel for the appellants must be read with that governing principle in mind. The Act itself in fact states that the freedoms therein mentioned may not be used as:

 

...a justification of practices inconsistent with the peace and safety of the Province....

 

In order to maintain its peace and safety and indeed its very existence, Canada like any other nation may well have to go again to war.

 

21     It is equally trite to say that the duties of a citizen exist in both war and peace and that in time of war they are much more onerous and vital for the security of the nation. It is not sufficient for a citizen to say in effect that if he faithfully and truly performs all of the duties imposed upon him in time of peace he will not be obliged to perform all of those additional duties imposed upon him in time of war.

 

22     The argument of counsel for the appellants to the effect that in the last 110 years there have been but ten years of war merely begs the question. It bears some resemblance to the case of a subject who would declare that he would be willing to obey 100 out of every 110 laws. Quantum obviously does not enter into the picture where there is a firm declaration that none of the laws imposing any duty to directly contribute to a war effort will be complied with. Furthermore, the oath of allegiance itself where it states:

 

...I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.

 

clearly is intended to include all of the laws and all of the duties both present and future.

 

23     The mere fact that during the 1939-45 War the National Selective Service Mobilization Regulations 1942 exempted certain classes of citizens such as judges, members of the clergy or of a religious order, or, in the discretion of the Board, bona fide candidates or students for the ministry of a religious denomination eligible to supply chaplains to the Armed Forces, does not advance the appellants' case in any way, because they have stated in effect that if any law or regulation in any future war does not exempt them, they definitely would not comply with it. Their statement amounts to a categorical refusal to recognize the right of Parliament to legislate on the subject, in so far as they are concerned.

 

24     Finally, counsel referred to the Nürnberg War Crimes Trials[FN5] in support of his argument, on which I have already commented, to the effect that the question is really a moral one and that where law and morality clash the latter should prevail. At the Nürnberg Trials there was indeed a general recognition on an international basis and a specific application in many cases of the principle that compliance by a citizen with the laws of his State does not absolve him from responsibility towards humanity for those heinous actions which are deemed to be crimes against humanity. But I know of no nation which affords recognition to the principle that for a citizen to participate actively in a war effort and to bear arms in a war in which his country is engaged, constitutes a crime against humanity. On the contrary, international conventions such as the Geneva Convention still regard such participation as the solemn duty of every citizen and require that active combatants who are made prisoners of war not be treated as felons or criminals nor subjected to any punishment for having taken up arms against or for having killed combatants of the country who captured them.

 

25     For the above reasons, I am not prepared, as counsel for the appellants has invited me to do, to declare that our law has changed to the extent that a citizen is not obliged to faithfully contribute directly to the prosecution of a war in which Canada may be engaged because he objects to war on moral or religious grounds. To come to the aid of one's country in time of war and to help bring about the defeat of its enemies has, from the beginning of our history, been regarded as one of the most fundamental, important and basic duties of a subject and I am not prepared by judicial decision, to state that that duty no longer exists for I am convinced that it does and will continue to do so until changed by Parliament.

 

26     For the above reasons the appeal is dimissed.

 

 

Solicitors of record:

 

W. Glen How, Q.C., Toronto, for appellant.

Frederick W. Chenoweth, Toronto, as amicus curiae.

 

 

FN1. (1945) 328 U.S. 61.

 

FN2. [1968] 2 Ex.C.R. 391.

 

FN3. S.C. 1960, c. 44.

 

FN4. S.C. 1851, c. 175.

 

FN5. XXVII Canadian Bar Review 761 (in Retrospect).