C.A.C. 49/73; 50/73
In re the Canadian Citizenship Act and in re
Thorbjorn Brink Jensen and in re Benth E. Jensen
(Appellants)
Citizenship Appeal Court, Addy J.—Toronto,
February 17; Ottawa, April 8, 1976.
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 other
wise 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 Cana-
da'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. Gi-
rouard v. United States (1945) 328 U.S. 61, discussed.
CITIZENSHIP appeal.
COUNSEL:
W. G. How, Q.C., for appellant.
F. Chenoweth as amicus curiae.
SOLICITORS:
W. Glen How, Q.C., Toronto, for appellant.
Frederick W. Chenoweth, Toronto, as amicus
curiae.
The following are the reasons for judgment
rendered in English by
ADDY J.: 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.
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.
They come from Denmark, having immigrated
here in 1955, and have seven children who were all
present in Court during the hearing.
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 demonstrat
ed how they, with some degree of success, con
stantly seek to rehabilitate alcoholics and other
persons who, in their view, have strayed from the
path of righteousness. Their children are excep
tionally clean-cut and alert and the family from all
appearances is a model one.
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.
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 pros
ecution of any war.
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 treat
ing 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, how
ever, 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 Jeho-
vah 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 intrinsi
cally evil, and
(ii) that nations as well as individuals must, as
nations, strictly follow the teaching of Jehovah
and return good for evil.
There can therefore be no question of legiti
mate self-defence.
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 alle
giance, 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.
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, fundamen
tal and important if not a sacred duty, the breach
of which leads to the severest of penalties.
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.
This trend is evident in society in the United
States and in Canada and has been reflected in
certain court decisions.
In the United States, all decisions of its
Supreme Court, until the case of Girouard v.
United States' 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 consider
ations or otherwise, refused to recognize the exist
ence of this solemn duty were refused citizenship.
The Girouard case, supra, reversed these previ
ous decisions and held that there was no such
implied duty under the Constitution. It is extreme
ly important to note however that the Girouard
case specifically recognized that the State has the
1 (1945) 328 U.S. 61.
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.
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 predeces
sor Court, the Exchequer Court of Canada,
namely in the case of In the matter of Bjarne
Almaas 2 . 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.
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
2 [1968] 2 Ex.C.R. 391.
good citizen as those stated in the Girouard case,
supra.
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.]
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 para
graph 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-comba
tant role in a war whether as a member of the
Armed Forces or not.
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 3 , 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.
It is clear that the Freedom of Religion Act 4
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 men
tioned may not be used as:
3 S.C. 1960, c. 44.
4 S.C. 1851, c. 175.
... 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.
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.
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 ques
tion. 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.
The mere fact that during the 1939-45 War the
National Selective Service Mobilization Regula
tions 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 chap
lains 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.
Finally, counsel referred to the Nurnberg War
Crimes Trials' 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 Nurnberg 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 prin
ciple 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 conven
tions 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.
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.
For the above reasons the appeal is dimissed.
5 XXVII Canadian Bar Review 761 (in Retrospect).
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