Mandatory Oath to King for New Lawyers Unconstitutional, Alberta Appeals Court Rules

The Calgary Courts Centre pictured in Calgary, on May 6, 2024. The Canadian Press/Jeff McIntosh

Alberta’s highest court has determined a provincial mandate requiring aspiring lawyers to swear an oath to the King to be able to practise law is unconstitutional because it violates religious freedom.

Three Court of Appeal judges unanimously ruled on Dec. 16  the law should either be repealed or amended following a years-long legal challenge initiated by Prabjot Singh Wirring, a devout Amritdhari Sikh.

Alberta law mandates that attorneys take an oath to “bear true allegiance” to the current monarch, along with their heirs, and successors.

Wirring initiated legal action against the Alberta government and the Law Society of Alberta in June 2022, arguing the requirement violated his right to religious freedom as a Sikh. Wirring argued that he had already sworn an oath and dedicated himself to Akal Purakh, the divine entity in Sikhism, and is restricted from pledging allegiance to any other authority or ruler.

Alberta argued the oath pertained to unwritten unconstitutional principles rather than the monarch themselves, while the law society refrained from taking a position.

Wirring’s challenge was rejected by the Court of King’s Bench in October 2023. The judge sided with the province, saying the oath was merely symbolic and did not constitute a genuine oath to the monarch as a political or religious figure and therefore did not violate religious freedom.

Wirring was able to avoid swearing an oath to the Crown by becoming a member of the Saskatchewan bar in 2023, where the oath was removed from the process. The ruling noted the requirement has also been removed in British Columbia and Prince Edward Island and is not mandatory in Ontario, New Brunswick, Nova Scotia, or Yukon.

Wirring was then able to become a member of the Alberta bar through an interprovincial licence transfer.

The appeals court found that Wirring’s workaround made his appeal moot, but the three-judge panel opted to rule anyway because it determined the case to be one of “public importance.”

The judges unanimously determined that Justice Barbara Johnston of the Court of King’s Bench made “palpable and overriding errors” in her decision to dismiss Wirring’s case.

“The requirement to take the Oath of Allegiance forced the appellant to choose between following his religious convictions or practicing law in his home province: he could not have both,” Chief Justice Ritu Khullar, Justice Bernette Ho and Justice Joshua Hawkes wrote in their decision. “This was a clear and significant infringement of his religious freedom.”

The judges indicated three possible courses of action for the province to resolve what they described as a “constitutional defect.” They said Alberta can either discard the oath completely, make it optional, or modify its phrasing.

Provincial Response

Alberta Justice Minister Mickey Amery’s office issued a media statement indicating the province is in the process of reviewing the ruling, but did not provide any additional comments.

The government of Alberta has 60 days to file an appeal with the Supreme Court of Canada.

The province has already been under pressure to amend the oath requirement following two lawsuits alleging that the regulation violates religious and spiritual rights.

Janice Makokis, part of a group of three aspiring indigenous attorneys who are suing the province, took on the role of intervenor in Wirring’s appeal. The BC Civil Liberties Association (BCCLA) also supported his appeal.

The Law Society of Alberta has already expressed its support for making the oath optional. The society, a self-governing authority that determines the standards for attorneys, linked the oath requirement to “systemic discrimination in the legal profession and the justice system” and said in a statement it was committed to addressing all equity and diversity concerns.

“While it is not within the power of the Law Society to amend legislation, we support an amendment to the Oaths of Office Act that would create flexibility for articling students by making the oath of allegiance to the King optional,” the society said in the statement.

“A change of this nature would be consistent with the approach taken in several other Canadian jurisdictions and would remove inequitable barriers to the practice of law in our province.”