Question of swearing oath to the monarchy headed to Supreme Court

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The question of whether would-be lawyers in Alberta should have to swear an oath of allegiance to the reigning monarch is headed to the Supreme Court of Canada.

The Court recently granted leave to appeal a decision from the Alberta Court of Appeal, which found the requirement unconstitutional because it violates the freedom of religion of some individuals, preventing their call to the bar. In the wake of that decision late last year, the Alberta government decided it wanted the country’s top court to weigh in on the question of constitutionality.

The challenge to the practice was brought by Prabjot Singh Wirring, an Amritdhari Sikh, who objected to swearing an oath to “bear true allegiance" to the reigning monarch, their heirs and successors. He argued that his religious convictions barred him from swearing true allegiance to any other entity or figure. He had no issue with the two other oaths required during the swearing-in of lawyers in the province — the Law Society oath and the official oath. 

The oath of allegiance has long been considered necessary for lawyers because the sovereign is a symbolic representation of the Canadian state, which includes the justice system. The Crown acts as the fountain of justice, from which courts and judges derive their authority, and lawyers are expected to acknowledge their loyalty to the organizing constitutional principles, including the rule of law, represented by the king.

That has been slipping in recent years, however. While the courts have upheld the requirement to swear allegiance to the king as part of the citizenship oath, in 2022, Quebec passed legislation that made it optional for elected members in the province by amending the application of section 128 of the Constitution Act, 1867. 

While that should be unconstitutional, it has not yet been challenged in the courts.

Several provinces have made the oath of allegiance optional or removed the requirement for lawyers to swear it as part of their call. It’s optional in Nova Scotia, New Brunswick, Ontario and Yukon, while British Columbia, Saskatchewan, and Prince Edward Island have done away with it entirely. 

“Few people appreciate why we still have the oath and why it matters,” says Philippe Lagassé, the Barton Chair in International Affairs at Carleton University and an expert on the Crown in Canada.

“I don't see that changing.”

He says challenges to the oaths reflect a general disinterest in the Crown, skepticism about the monarchy's relevance, and a desire for a more contemporary conception of Canada and its institutions. 

In Wirring’s case, the judge found that because the oath of allegiance is not actually directed to the king, but to the rule of law and Canada’s system of constitutional government, Wirring should have been able to take it despite his religious beliefs, particularly as he felt he could swear an oath to an “abstract principle” like the rule of law. The Court of Appeal, while upholding this interpretation of the oath itself, disagreed, noting that Alberta is one of only a handful of provinces where the oath of allegiance is mandatory.

It struck down the requirement and offered three options for the Alberta legislature to pursue: keep the current wording of the oath of allegiance but make it optional; revise the wording to remove the requirement to “be faithful and bear true allegiance”; or remove the oath of allegiance entirely.

'A moral conundrum'

During the appeal, Wirring’s lawyers approached the BC Civil Liberties Association about intervening. Veronica Martisius, BCCLA litigation staff counsel, says they were happy to advance arguments around section 2(a) of the Charter’s collective and individual components, and the importance of section 27's interplay in the context of barriers to participation in Canadian society, especially in the practice of law, where swearing an oath of allegiance poses a moral conundrum for people of different religious faiths and backgrounds.

She noted the Court of Appeal's upholding of the precedent that the oath of allegiance is not to the king but to the system of government is a problem for her. If the oath is intended for prospective lawyers to state their commitment to the rule of law and the Constitution, then it should explicitly say so.

“For people who may not have to face this conundrum in their lives, it might be easy to come to that opinion on that matter. But for people for whom there is a conflict, it’s not apparent by the wording that it has some other meaning,” Martisius says.

She says the Court pointed to other oaths prospective lawyers take that encapsulate respect for the rule of law and a commitment to uphold the laws of Canada.

Lagassé says the Court's finding that the oath is not to the king is to be expected, given the precedent on the issue, with repeated attempts to challenge it by would-be Canadian citizens.

“To my mind, the distinction raised … between an oath of citizenship and an oath to practice law is important,” he says. 

“Infringing on religious beliefs to practice a profession is understandably different than citizenship and allegiance to Canada and its system of government.”

The fact that this oath isn’t required to become a lawyer in other parts of Canada reinforces that point. 

“Other provinces don’t see an oath as essential to practice law, whereas all new citizens must swear an oath,” Lagassé says.

In a statement, Elizabeth Osler, KC, CEO and executive director of the Law Society of Alberta, said the LSA did not take a position on the matter and will follow the Court of Appeal’s direction to ensure compliance with the Charter.

'Massive conflict of interest'

The oath of allegiance is also an issue for prospective First Nations lawyers in Alberta. As sovereign treaty people, being forced to swear to the monarchy creates a massive conflict of interest.

University of Windsor law professor Janice Makokis, a Cree from Saddle Lake Cree Nation in Alberta, who hasn’t been called to the bar in the province because of the required oath, also intervened in the case.

“Her view of the treaty relationship is that it requires the Cree people to be able to continue their own way of life, with their own laws and own governance, and [the oath] requires a subjugation to His Majesty,” says Makokis’ lawyer Orlagh O’Kelly, founding lawyer with O’Kelly Law in Edmonton. 

“We filed a parallel claim on her behalf and of two other First Nations women in Alberta, which was based on some of the similar issues to Wirring under the Charter, but also section 35 of the Constitution, which protects Aboriginal treaty rights.”

O’Kelly says the Court of Appeal implicitly rejected their principles as intervenors, which were based on an interpretation of the oath as one directly to the king rather than to the constitutional order. Still, the outcome works in Makokis’ favour by striking down the law.

Lagassé says people could legitimately ask why they’re being asked to swear an oath to the Crown, when their relationship to the Crown is based on a treaty relationship, rather than an allegiance. 

“This speaks to the underlying tensions that surround treaties and Crown sovereignty in Canada.”

Steadfast despite separatism push

Of the three options presented by the Court of Appeal, O’Kelly says that making the oath optional or removing the requirement entirely would be best for her client. Revising the wording is a non-starter.

“The key being that you have to be faithful but not bear true allegiance to the king maintains the same issues for First Nations in terms of this being two peoples peacefully coexisting,” she says.

“One is being subjected to the other, which is completely contrary to the treaties.”

She wonders why Alberta would want an oath of allegiance, especially in light of the separatist movement the government is enabling, which seeks to make the province a republic. 

“It’s very strange to my clients why they are set on this requirement while everything [the Alberta government] is doing is undermining the relationship with the monarchy, which my clients don’t want to do at all—that’s a solemn covenant.”