Does Legality Always Capture the Purpose? the Example of the Granting of Citizenship

We have several expressions denoting the relationship of a set of circumstances to the law: does they conform to “the letter of the law”? Should we apply “black letter law”? Or do they not meet the strict confines of the law, but are in “the spirit of the law? Is the law permitting or proscribing this particular set of circumstances? Of course, there are many other words and phrases associated with law. In this post, I consider whether simple legality really captures the purpose or sense of granting citizenship.

Under the current requirements, those who satisfy the qualifications for citizenship, who have passed the citizenship test (it is possible to take the test online), if they are required to take it, and have passed an interview, if they are required to be interviewed, attend a citizenship ceremony.

(Not everyone has to take the test and not everyone has to be interviewed. For example, adults 18 to 54 years of ago must both pass the test and go for an interview; adults 55 and over do not have to take the test, but must attend an interview; minors don’t take a test, but depending on age and other factors, may or may not be required to go to an interview. See these requirements here.)

The last step is taking the oath of citizenship at a ceremony, which will be virtual (for most people) or in-person.

Those taking the oath online will see each other and will take the oath together (the format will be familiar to anyone who has attended a Zoom meeting). The government introduced the virtual ceremony at the point during the Covid pandemic when in-person activities were cancelled, but they have continued when the government reinstituted in-person ceremonies and they constitute the majority of ceremonies.

The virtual ceremony is similar to the in-person ceremony in the sense that everyone taking the oath will do so together. However, depending on where it is held, family and friends may attend an in-person ceremony. Regardless of format, the oath is taken before a citizenship judge. (See here and here for information about in-person ceremonies.)

The benefits of an (perhaps ideal) in-person ceremony can be seen in a video here. For a description of an actual in-person ceremony held at the University of Toronto’s Mississauga campus see here.

Immigration, Refugees and Citizenship Canada has plans to allow prospective citizens to take their oath online themselves, without being in the presence of a judge (“self-administration of the Oath of Citizenship”). The government explains that this could reduce delays in processing times and would be more convenient for candidates since most ceremonies take place during the day, requiring people to take time from work. (The reasons and process are explained in the Canadian Gazette.) This process will be optional, although those choosing it will become citizens more quickly than those selecting the current processes.

In-person and virtual ceremonies provide a picture of the diversity of Canada’s citizens. In an example of what a cynic might consider 1984 speak but someone identifying diversity as a multifaceted concept, the government explains in the Gazette that

This proposal would also benefit clients by providing greater flexibility in client service and promote inclusivity by allowing them to take the Oath of Citizenship in a manner that works best and at a time that is most convenient for them during the allocated time frame. The regulatory changes could result in less impact on clients, including financial impact, because they would be able to arrange to take the Oath outside of their scheduled work hours. (Emphasis added)

The Citizenship Regulations would refer only to the self-administered oath, with the virtual and in-person options described in the guide. Currently, the Citizenship Regulations explain the “Ceremonial Procedures of Citizenship Judges” (s.17(1)). The procedures “shall be appropriate to impress on new citizens the responsibilities and privileges of citizenship”, including emphasizing the milestone nature of the ceremony and “promot[ing] good citizenship, including respect for the law, the exercise of the right to vote, participation in community affairs and intergroup understanding”. This will not happen with the self-administered oath.

Now for a personal disclosure: when I became a Canadian citizen, as a British subject I did not need to pass a test or attend a ceremony in any real sense. I made an appointment in Hamilton with an official and took the oath. (The official raised her eyebrow when I rushed through the loyalty to the Queen part, but the whole thing was over very quickly.) (Now British citizens go through the same process as everyone else.) For me, the process was functional; I wanted to enter academia and Canadian citizens had priority for faculty positions. Once a citizen, however, I gradually developed an affection for and commitment to Canada, with all its flaws (lots to say about those, but not here).

I mention this because I have not had the personal experience of a citizenship ceremony, unlike John Ivison who described his in today’s National Post. The print edition of the paper had a large photo of a small boy dressed very smartly in a crisp white shirt, black pants, pink waistcoat and bowtie high-fiving someone who appears to be the citizenship judge. A very big illustration of support for the in-person ceremony.

The headline for the Ivison “Comment” is “Would you deny this boy the pomp of being proclaimed a Canadian?”, which misses the point. A different photo and headline appear in the online version: a citizenship ceremony that took place before the Blue Jays game on July 1st with the Immigration Minister administering the oath and two judges as witnesses (not a lot of pomp, since all the future citizens wore red blue jays shirts) under the heading “The Liberals are too eager to erode the singular power of the citizenship oath”. The ceremony isn’t exactly pomp but the power of the oath is enhanced by the ceremony.

As an article in Policy Options explains, there have been negative responses to the proposal, among public figures and those who commented during the government’s consultation. Among citizens 94% and among immigrants 66% were opposed to the proposal, but among applicants (those undergoing the process, I note) only 33% opposed the self-administered oath with ceremonies optional.

To return to my topic, someone taking a self-administered oath would be a legal Canadian citizen. And the benefits and disadvantages of citizenship would apply regardless of the method selected. It is the oath that makes it legal, however, it is taken.

Yet does the self-administered oath, this legal construct, really suffice? The ceremony is a way of bringing the subtext of the oath to the fore. It heightens the sense of joining a community. It stresses that citizenship is not (or should not be) a solo or isolated activity. Up to this point, prospective citizens have undertaken the steps to citizenship mostly by themselves, albeit perhaps in conjunction with another family member, or with help from a friend in preparing for the test. Now they join with others from many different countries, all of whom will make the same commitment to their new country.

It is true that people who are born in Canada do not have to undergo this same process. It is assumed that they will learn about Canada and citizenship in school (as someone who has taught people who have graduated from Canadian universities, never mind public or high schools, I can say one can only wish in some cases). Has my own experience, motivated as it was and taking the oath alone, meant I missed something? I felt little at the time, my sense of being Canadian evolved. Yet even that parsimonious experience did bring home to me that something was changing in my life.

The ceremony enlarges the law. It is a celebration of a legal act. The new citizens see before them a microcosm (somewhat skewed admittedly) of the country to which they are swearing or affirming loyalty. The remarks they hear from the citizenship judge and speakers reinforce the aspirations that define Canada to the realization of which they can contribute.

A self-administered oath, admittedly more convenient and financially manageable for both the government and the future citizen, will contribute to the atomization of Canadian society, a process that the government is promoting by placing the process at the centre of amended Citizenship Regulations and scuttling virtual and in-person ceremonies to the sidelines in “guidance documents made available on the Department’s website”.

Sometimes the law needs more than its mere observance. This is one of those occasions when the purpose of the legal act is best brought home before it begins to have its actual impact on the lives of those involved and the lives of those with whom they will interact.

The post Does Legality Always Capture the Purpose? the Example of the Granting of Citizenship appeared first on Slaw.

Related Posts