May a professional obligation to swear an Oath of Allegiance to one’s Head of State violate one’s rights to religious freedom and equality? That was the question before the Court of King’s Bench of Alberta in Wirring v Law Society of Alberta 2023 ABKB 580 (CanLII).
Mr Wirring is an amritdhari Sikh. He graduated in law from Dalhousie University, completed his articles and applied to be admitted to the Law Society and practise law in Alberta. The Legal Profession Act RSA 2000 requires an applicant for admission as a solicitor in Alberta to swear various oaths in open court before a judge including the Oath of Allegiance, which required the applicant to swear or affirm at the time in question that “I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors, according to law.”
On 9 June 2022, he filed a Statement of Claim challenging the obligation to swear the Oath of Allegiance, though no concerns were raised with respect to the other oaths [1-7]. He argued that as an Amritdhari (ie initiated) Sikh he had pledged an absolute oath of allegiance to Akal Purakh, the divine being in the Sikh tradition, and that the Oath of Allegiance to the Queen was incompatible with his religious oath .
In his deposition, Mr Wirring set out his claim as follows:
“As a member of the Khalsa that collectively represents the Guru, it is not possible for me to swear an oath of allegiance to Queen Elizabeth or any other religious or political entity as doing so would forsake my vows and identity, and would constitute a desecration of the Khalsa and the Guru.
As an amritdhari Sikh, I have an unwavering devotion to both Guru Granth Sahib and the Khalsa, and live to serve their aims … As an amritdhari Sikh, I cannot swear allegiance or subservience to another sovereign. My sovereign is the Guru and Khalsa. I can no longer be an amritdhari Sikh if I swear an oath of allegiance to any entity aside from the Guru and Khalsa” .
He further deposed that should he be required to take the Oath of Allegiance, he might have to relocate to another province, away from his extended family and community, where an oath of allegiance to the Crown was either not required or an alternative was available . He also argued that being required to take the Oath of Allegiance meant that he was not equal to others in Alberta because of his faith and that the requirement reinforced “the racial discrimination and violence he has experienced in his life because of his identity, his turban, his beard, and the colour of his skin” .
The Law Society of Alberta argued that Mr Wirring was mistaken as to the meaning of the Oath of Allegiance. It did not challenge his standing as a devout Sikh who had taken an oath to a divine spiritual figure and it contested his interpretation of the Oath of Allegiance as an oath to a sovereign or to a political figure or entity .
B B Johnston J said that the Oath of Allegiance in this case had similar origins to the oaths in the Citizenship Act 1985 and the Constitution Act 1867 and had similarly evolved in meaning over time. The harmonization principle suggested that the Oath of Allegiance under the Legal Profession Act should be similarly interpreted: not as an oath to the Queen as a person but as a symbolic oath to constitutional democracy by those seeking to be barristers and solicitors . In that sense, the Oath of Allegiance in the Legal Profession Act was even more profound than the oath to become a citizen: it represented not only a promise to abide by Canada’s form of government but also to maintain and uphold the rule of law and the Canadian constitutional system .
As to Mr Wirring’s claim that his religious freedom under sections 2(a) and 15 of the Canadian Charter of Rights and Freedoms had been infringed, he found that the state had not objectively interfered with his religious beliefs or practices. . To establish that his section 2(a) rights had been breached, he had to prove that the state had infringed his freedom of religion on a balance of probabilities, using facts that could be established objectively . Because the Oath of Allegiance was symbolic, he was not required under the Legal Profession Act to pledge allegiance to a spiritual or secular entity other than Akal Purakh. Therefore, there had been no objective interference with his freedom of religion by the state . Nor did the Oath of Allegiance requirement breach his right to equality under section 15 of the Charter . Claim dismissed.
[With acknowledgements to Howard Friedman at Religion Clause.]