The government should amend the Legal Profession Act to remove it or to make it optional.
First Peoples Law report: The Canadian Bar Association – In April 2022, the Law Society of Alberta acknowledged that systemic discrimination exists in the province’s justice system and legal profession. Two months later, a Sikh articling student launched a lawsuit, challenging the oath that articling students take when they become lawyers. His lawsuit was followed by a second challenge, started by three Indigenous women. These lawsuits have framed their legal arguments in terms of Charter rights, Aboriginal rights and Treaty rights, but they can also be understood as a challenge to one instance of systemic discrimination embedded in the legal profession. The good news is that there is a straightforward fix to this issue, if the Government of Alberta chooses to amend the Legal Profession Act.
Upon being called to the bar, articling students in Alberta must swear three oaths. They swear an oath of allegiance to “be faithful and bear true allegiance to [His Majesty King Charles the Third].” They swear to do their legal work “diligently, faithfully and to the best of [their] ability.” And they swear to avoid a long list of bad conduct, including destroying property, promoting frivolous lawsuits and perverting the law. The first two oaths are required by statute, the Legal Profession Act and the Oaths of Offices Act. The third is set out in the Rules of the Law Society of Alberta.
The mandatory oath of allegiance has been challenged in two separate lawsuits.
In June 2022, Prabjot Singh Wirring started a lawsuit challenging the oath of allegiance on the basis that it violates his rights under the Canadian Charter of Rights and Freedoms to religious freedom (section 2a) and equality (section 15). Wirring is an amritdhari Sikh and has pledged allegiance to the divine being in Sikh tradition. He is religiously precluded from making an oath of allegiance to another entity, including King Charles. He is asking the court to strike down the mandatory oath of allegiance as unconstitutional and to allow him to swear an alternative oath consistent with his religious obligations and Charter rights.
In September 2022, Anita Cardinal, Rachel Snow and Janice Makokis started a second lawsuit challenging the oath of allegiance. All three plaintiffs are Indigenous. Cardinal and Makokis are nêhiyaw (Cree) women from Nations in Treaty 8 and Treaty 6 territory. Snow is an Iyârhé Nakoda woman from a Nation in Treaty 7 territories. They take issue with swearing the oath of allegiance because it is inconsistent with their commitments to their respective beliefs, laws, lands and peoples. A second basis for their objection, as set out in their statement of claim, is that the sovereign “represents the head of the institution that colonized, removed [their] people from their traditional lands and territories, committed acts of genocide, and played a role in destroying the laws of [their] people and Nation[s] through the Indian Act.” Like Wirring, they argue that the mandatory oath of allegiance violates their Charter rights, namely their freedoms of religion and conscience, as well as their equality rights. Additionally, they argue that the oath violates their right to practise their Indigenous beliefs and laws, as protected by inherent Aboriginal rights, Treaties 6, 7 and 8, and affirmed in section 35 of the Constitution Act, 1982.
Both lawsuits have named the Alberta government and the Law Society of Alberta as defendants. The Alberta government has responded to Wirring’s lawsuit by applying to have it struck or summarily dismissed. According to the government’s argument, the mandatory oath of allegiance does not violate Wirring’s Charter rights because “[i]f the Plaintiff chooses not to swear the oath of allegiance, this does not deprive him of the ability to maintain his religious beliefs and practices, it simply means he cannot be admitted to the bar in Alberta.” Law Society of Alberta benchers released a statement in support of Mr. Wirring and have filed a statement of defence in the litigation indicating that they take no position. As of the writing of this article, neither the government nor the Law Society had yet to respond to Cardinal, Snow and Makokis’s lawsuit, beyond asking for further particulars.
The government could resolve the problems created by the mandatory oath of allegiance immediately by amending the Legal Profession Act. Other provinces have already opted to get rid of the oath of allegiance or to make it optional. For example, in British Columbia, lawyers swear to “uphold the rule of law, the rights and freedoms of all persons according to the Laws of Canada and of the Province of British Columbia.” Section 14(2) of the Legal Profession Act, 2017 in the Yukon makes the oath of allegiance optional. In Ontario, the law society made the oath of allegiance optional following a legal challenge brought in 1988 by the late Indigenous lawyer and law professor, Patricia Monture-Angus.
Alberta’s oath has been amended before to reflect the changing nature of the legal profession. In 1989, two women challenged the gender-specific language contained in the segment of the oath that is now contained in the Rules of the Law Society of Alberta. In response to their challenge, the oath was updated to include gender-neutral language. Those two women were Jennifer Koshan, now a professor at the University of Calgary, Faculty of Law, and Justice Sheilah Martin, who now sits on the Supreme Court of Canada.
But what about tradition? Traditions can be valuable reminders of important shared values and histories, but they can equally become antiquated, unwelcome anchors to a time when different values and beliefs predominated. Traditions can reinforce problematic hierarchies. It is not always easy for people, who benefit from those hierarchies, to recognize when traditions have become outdated. Jared Wesley, a professor of political science at the University of Alberta, has observed that “tradition is comfortable, particularly for those in privileged positions.” In 1989, women challenged gender-specific language in the Law Society’s oath because it worked to exclude them from the profession. Now, the oath of allegiance is being challenged because it is excluding Indigenous and amritdhari Sikhs from practising law in the province.
It is often said that there is strength in diversity. The Law Society of Alberta’s regulatory objectivesrecognize that “it is in the public interest for the legal profession to be representative of the population it serves,” because “the public should have a meaningful choice in who represents them… particularly… in the case of groups who might be underrepresented in society, have cultural or language barriers to working with certain lawyers or firms, or simply feel more comfortable having someone who understands their culture representing them…”
The plaintiffs in the oath lawsuits exemplify the value of a diverse bar. They bring a wealth of different life experiences. They have excelled in mainstream Canadian legal arenas. Wirring clerked at the Alberta Court of Queen’s Bench. Cardinal won multiple awards during her time at law school. Makokis teaches at the University of Windsor’s faculty of law. And each plaintiff has demonstrated a genuine commitment to serving their communities and the broader public. Snow has been working with Indigenous communities for 20 years. Anita Cardinal’s motivation for attending law school, as described in her statement of claim, includes “a profound desire to practice in her Treaty area (Treaty 8) and to advocate on behalf of Indigenous peoples in Alberta against the bias and injustice that she faced.” In an affidavit filed in his lawsuit, Wirring describes choosing a career in law because he saw it as a way of fulfilling his religious obligation to “defend the marginalized and advocate for social justice.”
The current iteration of the oath of allegiance should be a concern to all of us practising law in Alberta, because it prevents law students from specific racial, Indigenous, and religious backgrounds from becoming lawyers. When the Law Society of Alberta released its acknowledgment of systemic discrimination, their definition included: “policies, procedures and practices… that result in disproportionate … disadvantages for people with a common set of characteristics such as age, culture, disability, gender, race, religion, sexual orientation, and/or socio-economic status.” The oath of allegiance is a form of systemic discrimination. It keeps promising lawyers out of the profession and denies all Albertan’s access to the benefits of a diverse, inclusive bar. The solution is straightforward and has already been implemented, without issue, in many other Canadian jurisdictions. The government could resolve this issue by amending the Legal Profession Act to remove the oath of allegiance or to make it optional. Such an amendment would meaningfully promote equity, diversity and inclusion in the legal profession and across the province. Instead, it litigates.
BY ANNA LUND