By: Howard Kislowicz
Case Commented On: Wirring v Law Society of Alberta, 2023 ABKB 580 (CanLII)
PDF Version: Religious Freedom and the Oath to the Sovereign
In Wirring v Law Society of Alberta, 2023 ABKB 580 (CanLII), Justice Barbara Johnston for the Alberta Court of King’s Bench granted summary judgment in favour of His Majesty the King in Right of Alberta. The case concerns the objections of Prabjot Singh Wirring to “the portion of the oath mandated by the Legal Profession Act… as set out in the Oaths of Office Act… which includes an oath of allegiance to the sovereign” (at para 1). A person must take the oath to be admitted to the Law Society of Alberta and be entitled to practice law in Alberta. Wirring, who had “obtained a law degree from Dalhousie University and completed his articles” (at para 5) claimed that taking the oath violated his right to freedom of conscience and religion and his right to equality, as protected by ss 2(a) and 15 of the Canadian Charter of Rights and Freedoms. Wirring said that, as an Amritdhari Sikh, “oath of allegiance to the Queen is incompatible with the oath he has sworn to Akal Purakh, [the divine being in the Sikh tradition]” (at para 8).
In granting summary judgment against Wirring, the Court held that, while Mr. Wirring had a sincerely held religious belief prohibiting him from swearing allegiance to any entity living or dead, he had misapprehended the nature of the oath. The oath in question read, at the relevant time: “I… swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors, according to law. So help me God” (at para 18; the oath has been updated to refer to His Majesty King Charles the Third). As the Court notes, “[a]n applicant may affirm rather than swear the oath, in which case the words ‘so help me God’ may be omitted” (at para 19). In the Court’s view, despite its potential appearance, the oath should be regarded “not as an oath to the Queen as a person, but as a symbolic oath to our constitutional democracy by those seeking to be barristers and solicitors… Future lawyers are being asked to commit themselves to upholding the rule of law, which is a bedrock of our constitutional democracy” (at para 117). Because Wirring’s evidence, in the Court’s view, did not establish a religious prohibition on swearing an oath to an abstract concept, he had failed to establish an infringement of s 2(a) of the Charter. For similar reasons, his claim based on equality failed because it did not “establish a disparate impact based on religion” (at para 194).
Commentary
The outcome and reasoning in this case are unsurprising. Litigants have made similar arguments with respect to the very similar citizenship oath in the Federal Court (see Roach v Canada (Minister of State for Multiculturalism and Citizenship) (CA), 1994 CanLII 3453 (FCA), [1994] 2 FC 406) and in the Ontario courts (see McAteer v Canada (Attorney General), 2014 ONCA 578 (CanLII)). The appellate court in each of these jurisdictions followed a very similar line of reasoning, and both decisions were relied upon by Justice Johnston. Like those courts, Justice Johnston found the reference to the Queen (or now, King) in the current oath to be “purely symbolic” (at para 131); the oath has evolved away from referring to a specific individual, and has “become a symbolic reflection of our form of government, a constitutional monarchy” (at para 131). So while the Alberta Court of King’s Bench may not formally be bound by these decisions, it seems to have been persuaded by them.
And, indeed, there seems to be a good deal at stake for the Court and other state institutions in validating such oaths. After all, as the Court notes, Canada’s relation to the monarchy is a long-standing practice with specific textual reference in the Constitution (see The Constitution Act, 1867, 30 & 31 Vict, c 3 at s 9) and in other institutions of government. It is no accident, after all, that Crown lawyers frequently appear at the Court of King’s Bench. These symbols do important work in how we imagine and relate to the state (for a provocative discussion of the approach to symbols among the judiciary, religious and otherwise, see this excellent piece by Prof. Benjamin Berger). If we are to participate in the shared project of self-governance through the state, might we need this shared set of symbols to ground us? And how could it be unconstitutional to require a prospective lawyer to make an oath to something enshrined in the Constitution itself?
And yet, we may see this from a different perspective. Wirring, and the Roach and McAteer decisions on which it relies, demonstrate that in religious freedom cases, courts often must make determinations of social meaning. (These ideas are developed more thoroughly in a recent conference paper co-authored with Prof. Dia Dabby and presented at the “Evolving Approaches to Constitutional Interpretation in Canada” conference hosted by The uOttawa Public Law Centre, the University of Alberta Faculty of Law, and the York Research Chair in Pluralism and Public Law at Osgoode Hall Law School.) Such findings go beyond the purely factual – who did what, and when – but stop short of legal determinations. They are determinations about what words, objects or actions mean in a social context; the legal analysis and consequences then follow. For example, in Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 (CanLII) (Multani SCC), the Supreme Court of Canada was asked to determine whether a kirpan was primarily a religious symbol or a weapon. There was no avoiding answering the question, the only choice the Court could make was from whose perspective the question would be answered. The Supreme Court, unlike the Quebec Court of Appeal (see Commission scolaire Marguerite-Bourgeoys c Singh Multani, 2004 CanLII 31405 at para 89), emphasized the religious aspect of the kirpan in arriving at the conclusion that it was improperly excluded from a public high school (Multani SCC at para 79).
In my view, courts called upon to make such determinations should be guided by the purposes underlying the Charter and the particular Charter rights at issue. The values underlying the Charter include the limitation of government power in the name of the rights it protects (see Hunter et al v Southam Inc, 1984 CanLII 33 (SCC), [1984] 2 SCR 145 at 156), and the values underlying s 2(a) in particular include safeguarding human dignity by being free from coercion in matters of conscience and religion (see R v Big M Drug Mart Ltd, 1985 CanLII 69 (SCC), [1985] 1 SCR 295 at paras 94-97). These values favour an approach that privileges a sincere claimant’s characterization the oath’s meaning for the limited purpose of assessing the religious freedom infringement. This is consistent with the Court’s general rule of approaching religious obligations from the subjective perspective of the claimant (Syndicat Northcrest v Amselem, 2004 SCC 47 (CanLII) at para 56). Opposing parties, and even the court, need not personally adopt the view expressed by the claimant; rather, in light of the claimant’s fundamental freedoms, they must act in a way that respects the claimant’s sincere beliefs. This does not make the right to religious freedom absolute or conditional only upon the claimant’s say-so. The claimant must still fully explain their perspective in a way a court can understand, establishing objectively how the government rule interferes with their subjectively held belief (see SL v Commission scolaire des Chênes, 2012 SCC 7 (CanLII) at paras 22-24). What’s more, the government (or other defender of the limitation) still can justify any rights infringement under s 1 of the Charter, which permits reasonable limits on rights and freedoms that are demonstrably justified in a free and democratic society.
Consider, for example, if the facts were just slightly different, and Wirring had presented evidence that there was a specific prohibition in his religious tradition of uttering the specific words contained in the oath. The answer given by the Court in this case – that he had misunderstood the oath – would amount to a rejection of this religious belief. But the difference between the cases is one of degree rather than kind. This is because Wirring’s view of the meaning of the practice is intertwined with his religious views. He has concluded, based on his interpretation of his religious obligations, that he is prohibited from taking the oath as it is currently written. That the oath may have a different meaning as a matter of legal interpretation is somewhat beside the point, because the oath’s meaning as a matter of state law may be different from its meaning as a matter of religious law or practice.
It is perhaps telling that, as the Court notes, the Oaths of Office Act, RSA 2000, C 0?1 allows an applicant to affirm rather than swear the oath, and omit the words “so help me God” (at s 4(2)). This accommodation reveals that the legislature has accepted that certain phrases and actions (swearing and referring to God) have religious connotations for some, even if they do not for others. The legislature might have declined to offer the affirmation accommodation, or at least required affiants to refer to God, for the same reasons that they are required to refer to the sovereign. Indeed, the Supreme Court of Canada has held that the reference to the “supremacy of God” in the Charter’s preamble “articulates the ‘political theory’ on which the Charter’s protections are based,” (Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 (CanLII), [2015] 2 SCR 3 para 147) which is not far off from how the courts have interpreted the reference to the monarch in Wirring, Roach, and McAteer. But the legislature seems to have accepted in this regard that the same words might bear different meanings for different applicants, leading some to encounter religious issues with particular forms of an oath. The same ought to hold true for references to the monarch, as long as the claimant is sincere in their assertion that the oath conflicts with their religious beliefs. The question should not be whether the applicant has interpreted the oath correctly, but whether they have explained why this oath creates religious issues for them. In this case, the applicant’s explanation tracks closely with the literal meaning of the words in the oath. With great respect for the Court, this should have been sufficient to ground a finding of infringement of s 2(a).
Of course, this would not guarantee the applicant’s ultimate success. It may be that the Attorney General could offer a compelling justification for choosing this form of the oath under s 1 of the Charter, having to do with Canada’s identity as a constitutional monarchy and the need for lawyers to commit to upholding the rule of law. He may be able to show that this form of oath was consistent with the requirement that infringing laws minimally impair Charter rights (see R v Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103). But we will not be able to test the strength of such a claim unless an infringement is recognized, and the potential exclusion of members of a religious minority from the legal profession demands at least that.
With thanks to Profs. Benjamin Berger and Jennifer Koshan for helpful comments on earlier drafts
This post may be cited as: Howard Kislowicz, “Religious Freedom and the Oath to the Sovereign” (22 November 2023), online: ABlawg, http://ablawg.ca/wp-content/uploads/2023/11/Blog_HK_Wirring.pdf
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