Double Aspect

It is, or at least was, fairly common practice in Canada to require people to take an oath to “be faithful and bear true allegiance to” the Sovereign, his heirs and successors. The single largest group of people who must swear the oath of allegiance are naturalized citizens, of whom I am one. Another fairly numerous group that used to be, and in some provinces still is, required to swear this oath consists of lawyers. It has also been a somewhat common practice for people to object to the oath of allegiance, and in some cases to challenge its constitutionality. Such challenges failed in Roach v Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 FC 406 (FCA) and McAteer v Canada (Attorney General), 2014 ONCA 578, the challenges failed. In Wirring v Law Society of Alberta, 2025 ABCA 413 one has finally succeeded.

To put my cards on the table: I have long believed that the oath requirements are unconstitutional. I have argued as much in “True Allegiance: The Citizenship Oath and the Charter” (2014) 33:2 Nat’l J Const L, which was focused on the citizenship oath and the McAteer litigation. (I have also blogged about that case, notably here.) So I am pleased with the outcome of Wirring, though, as I explain below, I think the Court of Appeal’s reasoning is all wrong, even implausible. But the Court of Appeal did not refer to my piece or indeed to any scholarship, which I think is too bad. Call it bruised ego, but I think there is a broader point here as well: judges, with some regularity, tell academics to do less theoretical work that will assist them in resolving actual disputes. I agree that there is something to this concern, though it can be overstated. But it rings hollow when appellate courts simply ignore practical scholarship that is directly on point and would assist them in dealing with a case, whether or not they ultimately agree with the approach proposed there. To be clear, I’m not dunking on the Wirring bench, which may have been pressed for time, insufficiently informed by lawyers, etc.; but I am making a point about the judiciary’s revealed preferences.

The applicant in Wirring was a devout Sikh. As the Court of Appeal saw things, his understanding of his faith was that he had “made an oath of allegiance to [the creator] which required him to devote his life” to the faith and its teachings, and “prevented him from making an oath of allegiance to anything else”. [62] (There was actually a dispute about just what the applicant’s beliefs were, and the court below interpreted them differently from the Court of Appeal. I am skipping all this, though there is food for thought there for readers with an interest in law and religion, notably in relation to the difficulties a court might face in interpreting somewhat confused evidence about the nature of unfamiliar religious belief.) He argued that requiring him to swear an oath of allegiance in order to become a lawyer meant declaring a higher, or alternative, loyalty, contrary to his religious undertaking, and thus in effect forcing him out of his faith, in violation of the freedom of religion protected by s 2(a) of the Canadian Charter of Rights and Freedoms.

Having ascertained, and taking as a given, the applicant’s subjective beliefs about the nature of his religious obligations, the Court proceeds to an objective assessment of whether the challenged law interferes with them. Here, the applicant’s say-so is not sufficient; the court must come to its own conclusion. When it comes to oaths specifically, “[t]he oath requirement infringes s 2(a) only if making the oath, as correctly interpreted using the tools of statutory interpretation, conflicts with the person’s religious beliefs.” [53] Thus, in Roach and McAteer, the applicants had been republicans who objected to swearing allegiance to the Sovereign. They were met with the rejoinder that they misunderstood what was required of them, since the oath was not about a personal loyalty, but in effect about commitment to the constitution, so their beliefs were not being interfered with.

The Court of Appeal reiterates this point so far as allegiance to the Sovereign is concerned, but this is not, in its view, the key issue. The case turns, rather, on the meaning of allegiance itself. The Court asks: “What kind of commitment does that involve?” [82] And the answer it gives is quite remarkable. In its view, “the Oath of Allegiance involves making a commitment that overrides the oath-taker’s personal and religious commitments”. [84] The Court of Appeal explains that

“allegiance” and its synonyms refer to a commitment to something that goes beyond ordinary support. Allegiance does not waver when there are conflicting interests at play. A person is not devoted to an ideal if they are willing to compromise it for an adequate reason. The adjective “true” in the Oath of Allegiance reinforces this contrast between “allegiance” and ordinary support. [85]

It also notes that “lawyers have special responsibilities to practice in ways that serve the ideals of constitutional government and the rule of law”, and argues that “[a]gainst that background, it is appropriate to read the language of ‘true allegiance’ in the Oath of Allegiance as an overriding professional commitment to those ideals”. [87] The Court also adds that Roach and McAteer not instructive on this point, not only because they did not turn on or indeed discuss the concept of allegiance, but also because “[i]t may be appropriate that the words ‘be faithful and bear true allegiance‘ have different significance in a bar admission ceremony than they do in a citizenship ceremony”. [89]

Once allegiance is understood as an overriding loyalty set above one’s religious commitments, it is, of course is incompatible with the applicant’s understanding of his religious duty, and amounts to a limitation of his right to religious freedom. What is left is the question of whether such a limitation is justified in a free and democratic society. The Court of Appeal answers in the negative, both because “an oath of ordinary support” [103] for the rule of law and the constitution would do just as well as one of allegiance, and because, without producing any apparent benefit, the oath requirement resulted in the applicant having “felt alienated from the legal system for forcing this choice on him but not on his peers”, experiencing “considerable stress and anxiety” and “[p]erhaps[] most importantly, question[ing] his own self worth”. [109] The requirement is, therefore, unconstitutional.

The Court of Appeal concludes by suggesting a number of possible ways in which the legislature could respond. It could make the oath optional, like Ontario, Nova Scotia, and New Brunswick. It could abolish it, like British Columbia, Saskatchewan, and Prince Edward Island. (The Court does not mention Quebec, but so far as I can tell, there is no provision for any oaths in the Act respecting the Barreau du Québec either.) Or it could rewrite the existing oath and tone it down from demanding allegiance to something less onerous. [114]

As I said above, I think there are very serious flaws in the Court of Appeal’s reasoning, though I agree with the outcome. I will address these flaws from least to most fundamental, though as it happens this is the reverse order from that in which they emerge. I will then say something about the consequences of the decision and the commentary it has provoked in some quarters.

To begin with a comparatively minor point, I think the Court was quite wrong to analyze the deleterious effects of the oath requirement in terms of its subjective impact on the applicant, and especially on the applicant’s feelings, be it stress, alienation, or lack of self-worth. Without getting into a broader dispute about whether the balancing of positive and deleterious effects should even be part of assessing whether a limitation on rights is demonstrably justified in a free and democratic society, this cannot rest on purely subjective claims about how badly a rights-limiting law has made someone feel. Allowing such claims would only invite an escalation of grievance talk, while telling us nothing about how far-reaching or trivial the laws at issue actually are. Nor is this required (or I think even invited) by the cases. Again, I won’t do a deep dive, but consider that in R v Oakes, [1986] 1 SCR 103 Chief Justice Dickson wrote that

Some limits on rights and freedoms protected by the Charter will be more serious than others in terms of the nature of the right or freedom violated, the extent of the violation, and the degree to which the measures which impose the limit trench upon the integral principles of a free and democratic society. (139-140)

That’s the kind of deleterious effects the focus should be on, if courts undertake the balancing analysis at all. Not how any of this makes people feel.

Second, I think the Court of Appeal’s interpretation of allegiance is simply implausible. I agree that “allegiance” is stronger than “ordinary support”, but it does not follow that it requires utterly inflexible and uncompromising fidelity. Staying in the realm of the rule of law, I do not think that a lawyer or even a judge who sacrifices a rule of law value in a hard case to what he or she sees as the requirements of justice thereby defaults on his or her allegiance. Consider, for instance, R v R, [1992] AC 599, where the courts abolished what had been supposed to be a common law rule preventing a husband from being found guilty of rape against his wife. I think there is a strong argument to be made that this was a violation of the requirements of the rule of law, notably non-retroactivity of (criminal!) law and legal certainty. There is also, of course, a strong argument to be made that, in the circumstances, these requirements had to give way to concerns about women’s autonomy and equality. However you think these arguments should have played out, a lawyer making such a case, and a judge accepting it, do not break their allegiance to the rule of law.

Be that as it may, I certainly do not think that “allegiance” is something that overrides people’s personal and religious commitments. In this respect, the Court of Appeal’s attempt to exclude the analogy to citizenship, and I suppose, implicitly, other circumstances where oaths of allegiance are required, such as becoming a Senator or Member of Parliament, is feeble. The phrase “true allegiance” is an old one, and its use across different contexts strongly suggests — absent evidence to the contrary, of which there is none — that its meaning is the same across the board. This is consistent with the explanation for the oath that I develop in my article: that it is an attempt to guide and constrain the exercise of otherwise unconstrollable discretion and autonomy; it is a mark of suspicion, often — as in the case of lawyers, as well as members of Parliament — of people exercising power, but sometimes, as with naturalized citizens, in the face of mere foreignness. But I do not think that we can expect a Member of Parliament to set aside all personal and even religious commitments in the face of an overriding duty to the constitution. Still less can we put such an expectation on an ordinary citizen, naturalized or otherwise (and keep in mind that natural-born citizens are simply deemed to owe allegiance to the Sovereign). The constitution itself protects the freedom of conscience and religion, ad the possibility of making an affirmation instead of a religious oath shows that this was, at least after a fashion, the case long before the enactment of the Charter. The Court of Appeal does not consider any of this, and its reasons are, accordingly, very weak, as well as potentially having far-reaching consequences, to which I return below.

First, though, let me deal with my third point, which explains why I agree with the outcome of Wirring even though I think the Court of Appeal’s central argument for it is wrong. In my view, the Court’s approach to the case — looking for the objective meaning of “true allegiance” and determining its compatibility with the applicant’s religious beliefs — is wrong too. The Court approaches the oath in the same manner it would ordinary statutory language, whose meaning falls to be determined by the court, such that a claim of Charter infringement cannot be based on a citizen’s subjective (mis)understanding of what the law requires (as the Supreme Court confirmed, sensibly, in R v Khawaja, 2012 SCC 69). But, as I explain in my article, oaths are not like ordinary statutes. The whole point of requiring an oath instead of simply imposing a statutory duty is to enlist the oath-taker’s consience and make him or her work out just what some difficult endeavour, such as maintaining “allegiance”, performing the duties of an office, or even truth-telling, might require from time to time.

This means that the meaning of an oath cannot be analyzed objectively, in the manner of ordinary statutory language. At least within some broad reasonableness bounds, an oath means what the oath-taker thinks it means; it is definitionally, necessarily subjective. If Mr. Wirring thinks that allegiance is the sort of overarching, all-consuming, and exclusive loyalty he describes, then that’s what an oath of allegiance means to him, and his freedom of conscience and religion is interfered with by a statutory requirement that he take one, even though the Court of Appeal is quite wrong to attribute this meaning to allegiance as an objective matter. Then the question becomes one of whether the legislature has good reasons for this interference, and, despite the above-mentioned flaw in its balancing analysis, the Court of Appeal is right that there is none.

This brings me to some concluding thoughts on the consequences of the decision. There has been some pearl-clutching about it on Twitter, along the lines of “if the legislature cannot even demand allegiance, what’s the world coming to?” But the fact of the matter is that there will be no practical consequences, though there might be some legal ones.

I have already hinted at the latter: in my view, the Court of Appeal’s attempt to distinguish Wirring from the citizenship oath cases is unserious. If that’s right, then the citizenship oath that was upheld in Roach and McAteer is unconstitutional after all, and will have to go once it is challenged by an objector armed with the Wirring‘s reasoning. Other oaths of allegiance, except the one for parliamentarians prescribed by section 128 of the Constitution Act, 1867, which cannot be overridden by the Charter, will also have to go. Some people will clutch their pearls all the stronger, but consider: if allegiance really has the meaning the Court of Appeal attributes to it, how can the state possibly demand it of anyone? It is a totalitarian idea that does not belong in a free and democratic society. And if it doesn’t, as I have argued, does the oath matter?

In practice, surely not. So far as the lawyers are concerned, as we have already seen, the oath of allegiance is either optional or not even that in most provinces, including the biggest legal markets; Alberta is merely the last domino to fall, with all due respect to the holdouts in Manitoba and Newfoundland. Has anyone even noticed? Why would they have? As I have written before, in the citizenship context, oath-taking is just a form of theatre in which the actors do not even understand their lines. And as for citizenship, recall this little gem from McAteer:

a former plaintiff in this proceeding who had taken the oath of the citizenship[] has publicly recanted the oath to the Queen while, at the same time, confirming the remainder of the oath. [He] was informed by the Minister of Citizenship and Immigration that his recantation had no effect on his citizenship status. [79]

This too shows just how unserious the whole business is, how little it matters, and why getting rid of oath requirements, whether legislatively, as most provinces have done, or through litigation, is the right thing to do.

Let me end by quoting the last paragraph of my article, which refers to Noah Webster, of lexicographical fame, and his argument against oaths of allegiance:

As Webster recognized, the person arguing for the abolition of an oath of allegiance “will be asked, how shall we distinguish between the friends and enemies of the government?” His answer was perhaps a little optimistic: “A good constitution, and good laws, make good subjects. I challenge the history of mankind to produce an instance of bad subjects under a good government.” There will be, our jaundiced age will say, bad subjects under any government. But will those who are bad subjects in spite of good laws become good subjects because of a bad oath? (168; references remomved)