Why the oath to the sovereign matters as a requirement of the practice of law

The requirement to take an oath of allegiance to the sovereign remains a requirement for being called to the Bar in some provinces, including Alberta.   

Does it violate deeply held religious beliefs? Can it even violate those beliefs? Past decisions out of Ontario dealing with the oath as a condition of acquiring Canadian citizenship can offer some guidance.

In McAteer v. Canada (AG), a series of individuals objected to taking the oath of allegiance to the sovereign (then Elizabeth II) as a condition of acquiring Canadian citizenship on various Charter-based grounds. They argued, unsuccessfully, that taking such an oath conflicted with their deeply held religious beliefs or political convictions. Not that their beliefs were unworthy of protection. But the purpose of the oath was secular ––directed at the symbolic head from which the principles of democracy, the rule of law and egalitarianism flow. Canada's constitutional underpinnings provide the very support for their freedom to hold and exercise their beliefs. In sum, there is no, and arguably cannot be any conflict between a sincere adherence to republicanism, egalitarianism or Rastafarianism (the grounds of opposition in McAteer) on the one hand and an oath referencing the symbolic embodiment of the Canadian state on the other.

As put succinctly by Justice Edward Morgan of the Ontario Superior Court, the problem was not that the applicants took the oath seriously, but that they took it literally. Modern principles of statutory interpretation lean heavily against the purely literalist approach the applicants espoused. 

They were not being asked to submit to the sovereign as a person or as an arbitrary, hereditary ruler, as their literalist view of the oath would have it. The sovereign embodies the contrary –– the loyalty being asked of the applicants was to Canada's organizing constitutional principles, both written and unwritten, which include egalitarian governance, democracy, the rule of law, respect for minorities and others (see: Reference re: Secession of Quebec). A legal tool, the modern approach to statutory interpretation, which is contextual, functioned here to leverage an understanding of what the sovereign has evolved to represent in Canadian society today. 

These applicants misconceived what form of loyalty was being asked of them, and a misconception of legislation cannot ground a Charter breach.   

One may ask what harm allowing an individual exemption would pose, accepting the burden of their sincerely held feelings about taking the oath. This would ignore that the oath is rights-enhancing and is not violative of rights. As the Court of Appeal noted, "[p]urposively interpreted, the oath exemplifies the very principle s. 2(a) [of the Charter of Rights] was intended to foster." As stated by Justice Morgan, an accommodation of an applicant's religious objection to a purely secular, rights-affirming oath would itself undermine the values in s. 2(a) of the Charter. Their misconceived understanding of the oath is the exact opposite of what the sovereign has come to mean in Canadian law. To that extent, an exemption would be an incoherent response to their refusal to take the oath. Incoherence within the law is not a tenable outcome.  

Put otherwise, permitting an exemption on religious grounds to a requirement that is secular and rights-enhancing would make one religion 'more equal' than others, undermining the values the Charter is meant to foster. 

Another response that ties in with the applicants' misunderstanding of the oath is found in the Court of Appeal's finding that making reference to the sovereign optional would be a superficial cure. The applicants' real complaint would not be answered: any oath of allegiance to the laws of Canada necessarily includes "the very foundation for the enactment of those laws — the Constitution Acts — and would be an indirect reference to the Queen" in any event.    

Does the foregoing have application to an objection on religious grounds to taking the oath to the sovereign as a requirement of being called to the Bar? One may infer from the discussion above that there is no constitutionally based conflict between a religious belief, however deeply and sincerely held, and declaring a secular allegiance to the rights-enhancing values represented by Canada's form of government and its laws which guarantee and protect an individual's religious adherence. When properly understood in context, taking such an oath does not require foreswearing one's religious adherence, as there is no conflict between the two. 

Including an oath to the sovereign as the symbolic representative of the Canadian state is only rational. The state includes our judicial system. As D. Michael Jackson and Philippe Lagasse wrote: '...the authority that courts wield descends to [judges] from the Crown as the fount of justice….though the judiciary ensures the rule of law, justice is administered in the name of the Sovereign" in Canada. It is incumbent on prospective law practitioners to acknowledge their loyalty to the organizing constitutional principles, such as egalitarian governance, democracy and respect for minorities, in addition to the rule of law, represented by Canada's head of state.

Taking a page from the Ontario Court of Appeal's decision in McAteer, there is nothing impairing about requiring a public avowal of a prospective lawyer's willingness to accept rights and responsibilities within Canada's judicial system, which emanates from the Crown, in exchange for the privilege of being able to practice law in a province. Such rights and responsibilities are secular in nature and are not violative of rights, but rather rights-enhancing. Those rights embrace differences, including those based on religious belief. Taking such an oathwould not conflict with a deeply held religious belief but would instead be consistent with and supportive of it.  

Views expressed are thee writer's own and do not represent the views of the Department of Justice or the Government of Canada.