Chris Selley: The Crown is Canada. Tell the lawyers refusing to swear allegiance to it

Well, who needs some silly old king anyway? He’s only the head of state, right?

On Tuesday (pending appeal, one hopes), Alberta became the latest province in which lawyers called to the bar needn’t swear allegiance to the monarch. Prabjot Singh Wirring argued the requirement to “be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second,” as the oath read when he challenged it, violated his religious freedoms. His strict Amritdhari Sikh faith prevented him from pledging fealty to anyone or anything other than God, he argued.

And on Tuesday, the Alberta Court of Appeal unanimously backed him up. “The requirement to take the oath of allegiance forced the appellant to choose between following his religious convictions or practising law in his home province: he could not have both,” the judges concluded.

They gave the Law Society of Alberta three options: ditch the monarchy-tainted oath entirely, as three other provinces have; make said oath optional, as three other provinces also have; or remove the words “bear true allegiance” from the oath.

The whole thing is preposterous, all the way down. In essence, the Alberta Court of Appeal has excused a lawyer from pledging allegiance to Canada.

When new lawyers, new citizens or anyone else pledges allegiance to the monarch, they’re not pledging allegiance to the man or woman currently wearing the Crown. That’s why we don’t have to redo everyone’s oaths when a monarch dies. Rather they are pledging allegiance to the Crown itself, which is the embodiment of Canada, including its legal system.

Wirring’s challenge to the oath failed in the lower court on precisely these grounds. “I have found that (Wirring’s) inability to take the oath of allegiance is caused by (his) misunderstanding of the oath of allegiance, not his religious beliefs,” ruled Justice B.B. Johnston of the Court of King’s Bench of Alberta. “Thus, I cannot reasonably infer that the oath of allegiance causes or contributes to a disparate impact on Amritdhari Sikhs generally based on their religion.”

In this, Johnston relied on Wirring’s own affidavit: “I do not and cannot view the (oath of allegiance) as a symbolic commitment to the constitution of Canada and its system of democratic governance,” he averred.

Well, too bad, Johnston essentially ruled, because that’s what it is.

This is not a controversial view of the Crown; in fact, the appeal court judges say as much in the ruling: “We agree with the chambers judge that, correctly interpreted, the oath of allegiance is not directed at the Queen as a person; its object is the rule of law and the Canadian system of constitutional government.”

And then they let him off the hook anyway.

There’s an argument to be made that this doesn’t really matter. Wirring is already a member of the Alberta bar via an automatic licence-transfer process for those called to the Saskatchewan bar, which Wirring was in 2023 (although he didn’t practise in Saskatchewan).

Saskatchewan is one of the provinces where you don’t have to swear allegiance to the monarch. The matter was therefore “moot,” the Alberta Court of Appeal observed, but then it decided to rule on it anyway. (It’s brilliant, being a judge: The mootness of a proceeding can justify either abandoning it or pursuing it, whichever feels best!)

Furthermore, an oath is just an oath, not an incantation or a guarantee. Wirring might be a terrific lawyer despite his strange and incorrect hangup about the oath. Conversely, we know very well there are lots of crummy lawyers out there who happily took the oath without a moment’s thought.

But it feels like recent Canadian history has involved saying “meh, it doesn’t really matter” an awful lot. And we’re not better off for it. Canadian lawyers aren’t just advocates for their clients, but officers of the court, duty bound (don’t laugh! It’s not funny!) to “constantly reflect on what they are doing, and why, and (to) appreciate how their actions affect the client, the legal system, and the public at large,” David Layton and Michel Proulx write in Ethics and Criminal Law.

It’s a good general principle that courts shouldn’t try to judge the sincerity of religious beliefs, but rather take people at their word unless there’s compelling reason not to. But few rights in Canada are absolute, for better or worse. And again, in vouchsafing Wirring’s misapprehension about what the oath means, the Alberta Court of Appeal has essentially excused a lawyer from pledging allegiance to the law.

It may be “symbolic,” but “symbolic” is by no means a synonym for “worthless.” Our fairly robust constitutional monarchy is proof enough of that.

National Post
cselley@postmedia.com