Wirring v Law Society of Alberta, 2023 ABKB 580

Court of King’s Bench of Alberta Citation: Wirring v Law Society of Alberta, 2023 ABKB 580 Date: 20231016 Docket: 2203 08972 Registry: Edmonton Between: Prabjot Singh Wirring Plaintiff - and - Law Society of Alberta and His Majesty the King in right of Alberta Defendants _______________________________________________________ Reasons for Judgment of the Honourable Justice B.B.

Johnston _______________________________________________________ [ 1 ] The Plaintiff, Prabjot Singh Wirring, claims that the portion of the oath mandated by the Legal Profession Act , RSA 2000 c L-8 [ LPA ], as set out in the Oaths of Office Act , RSA 2000, C 0-1 [ OOA ], which includes an oath of allegiance to the sovereign, violates his rights to religious freedom and equality guaranteed by sections 2(

a) and 15 of the Canadian Charter of Rights and Freedoms and is not justified under

section 1 . [ 2 ] The Defendant, His Majesty the King in right of Alberta (“Alberta”), applies to strike or alternatively to summarily dismiss the claim.

[ 3 ] Mr. Wirring opposes Alberta’s application to strike or summarily dismiss the claim. He applies for

summary judgment. [ 4 ] The Defendant, the Law Society of Alberta (“Law Society”), takes no position on the applications. Background [ 5 ] Mr. Wirring obtained a law degree from Dalhousie University and completed his articles. In order to be admitted to the Law Society and practice law in Alberta, the LPA requires an applicant to swear various oaths in open court before a judge. [ 6 ] On June 9, 2022, Mr. Wirring filed a Statement of Claim challenging the oath of allegiance.

No concerns are raised with respect to the other oaths. [ 7 ] The oath of allegiance requires an applicant to swear or affirm that “I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors, according to law.” [ 8 ] Mr. Wirring is an amritdhari Sikh. He has pledged an absolute oath of allegiance to Akal Purakh, the divine being in the Sikh tradition. Mr. Wirring asserts that the oath of allegiance to the Queen is incompatible with the oath he has sworn to Akal Purakh. [ 9 ] Alberta filed a Statement of Defence on July 15, 2022. The Defence asserts that Mr.

Wirring’s religious objection is based on a misunderstanding of the oath of allegiance. Alberta’s position is that the oath of allegiance is a secular oath that is a symbolic commitment to the democratic system of governance, the Constitution of Canada and to unwritten constitutional principles including the rule of law. It is not an oath to Her Majesty Queen Elizabeth the Second as a sovereign or an entity. [ 10 ] On July 12, 2022, the Law Society filed a Statement of Defence confirming the statutory requirements relating to the oaths.

On August 4, 2022, the Law Society replied to a Notice to Admit Facts. [ 11 ] Mr. Wirring filed an application for

summary judgment on June 10, 2022. [ 12 ] Alberta filed an application to strike, or alternatively summarily dismiss Mr. Wirring’s claim, on July 15, 2022. Alberta also filed a response to a Notice to Admit Facts on August 10, 2022. Demise of the Queen [ 13 ] Her Majesty the Queen in right of Alberta was named in the Statement of Claim. The Queen died on September 8, 2022.

Styles of cause that named Her Majesty the Queen in right of Alberta as a party are deemed to be amended to His Majesty the King in right of Alberta: Master Order Relating to the Demise of the Queen (Alberta Court of King’s Bench, 17 October 2022). [ 14 ] On November 16, 2022, the oath of allegiance was amended to refer to His Majesty King Charles the Third: Demise of The Crown (Statutes) Amendment Regulation , Alta Reg 217/2022, s 163. [ 15 ] The pleadings were filed prior to September 8, 2022. My decision will therefore refer to the oath of allegiance as written when the pleadings were filed.

Legislative Framework [ 16 ] The requirements to be admitted as a barrister and solicitor in Alberta are prescribed by

section 44 of the LPA . [ 17 ] Once the Law Society approves their enrolment, an applicant must appear in open court and take: (

a) an oath of allegiance in the form prescribed by the Oaths of Office Act , (

b) the official oath prescribed by the Oaths of Office Act , and (

c) any other oath prescribed by the rules. s 44(2), LPA [ 18 ] The oath of allegiance and official oath are set out in the OOA and provide: Oath of Allegiance 1(1) When by a statute of Alberta a person is required to take an oath of allegiance it shall be taken in the following form: I, _______ , swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors, according to law. So help me God. [“Oath of Allegiance”] ... Official Oath

2 When by a statute of Alberta a person is required to take an official oath on (

a) being appointed to an office other than that of judge or justice of the peace, or (

b) being admitted to a profession or calling, the oath shall be taken in the following form: I, ________, swear that I will diligently, faithfully and to the best of my ability execute according to law the office of ______ . So help me God. [“Official Oath”] [ 19 ] An applicant may affirm rather than swear the oath, in which case the words “so help me God” may be omitted: s 4, OOA . [ 20 ] The “other oath prescribed by the rules” comes from the Rules of the Law Society (“LSA Rules”): LSA Rules 2021 v7 .

Rule 67(7) requires an applicant for enrollment as a member of the Law Society to take and subscribe to the following oath: I will as a Barrister and Solicitor conduct all causes and matters faithfully and to the best of my ability. I will not seek to destroy anyone’s property. I will not promote suits upon frivolous pretences. I will not pervert the law to favour or prejudice anyone, but in all things will conduct myself truly and with integrity.

I will uphold and maintain the Sovereign’s interest and that of the public according to the law in force in Alberta. [“LSA Oath”] [ 21 ] In practice, the three oaths (the “Oaths”) are recited one after another at a bar call ceremony. History of the Oaths Legislative History [ 22 ] The first Legal Profession Act was proclaimed in 1907:

An Act Respecting the Legal Profession in the Province of Alberta and to establish the Law Society of the Province of Alberta , SA 1907, c 20 [ 1907 LPA ]. The 1907 LPA did not contain any oath requirement. [ 23 ] In 1912, a long form oath was introduced through an amendment to the 1907 LPA which stated: 35a. Every person before being enrolled shall take and subscribe before a judge or judges of the Supreme Court of Alberta, in open court, the following oath of affirmation: I, ....................... , do without equivocation, mental evasion or secret reservation, sincerely promise and swear: 1.

That I will be faithful and bear true allegiance to His Majesty King George the Fifth (or the reigning sovereign for the time being) as lawful sovereign of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the Seas; and that I will defend Him to the utmost of my power against all traitorous conspiracies or attempts whatsoever which may be made against his person, crown and dignity; and that I will do my utmost endeavour to disclose and make known to His Majesty, his heirs or successors, all treasons, traitorous conspiracies or attempts which I may know to be made against him or any of them; 2.

That I will, as a barrister and solicitor, conduct all causes and matters faithfully, and to the best of my ability; I will not seek to destroy any man's property; I will not be guilty of champerty or maintenance; I will not promote suits upon frivolous pretences; I will not pervert the law to favour or prejudice any man, but in all things conduct myself truly and with integrity, in fine, the King's interest and my fellow citizens' I will uphold and maintain according to the law in force in this province.

Statute Law Amendment Act , SA 1911-12, c 4 , s 29(3). [ 24 ] This form of oath remained in place for over forty years, though the reference to King George the Fifth was amended to Queen Elizabeth the Second after the King’s passing. [ 25 ] In 1958, amendments to the Legal Profession Act changed the oath requirement: Legal Profession Act , RSA 1955, c 173 , s 63 as amended by An Act to amend the Legal Profession Act, SA 1958, c 35 , s 5 [ 1958 Amended LPA ].

Section 63 of the 1958 Amended LPA now required “an oath of allegiance” along with the “official oath”: The Oaths of Office Act , RSA 1955, c 226 as amended by The Statutes Corrections Act, SA 1958, c 82 [ 1958 Amended OOA ]. [ 26 ] The oath of allegiance and official oath from the 1958 Amended OOA stated: Oath of Allegiance

I . .................................................. do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors, according to law. So help me God. Official Oath I . ................................................... do swear that I will diligently, faithfully and to the best of my ability execute according to law the office of .......... ............ ........... So help me God. 1958 Amended OOA at Schedule, Form A and Form B. [ 27 ] The 1958 Amended LPA then added the following wording to the official oath: 63.

(1) A person before being enrolled as a barrister or solicitor shall take and subscribe before a judge or judges of the Supreme Court of Alberta, in open court, (

a) an oath of allegiance in the form prescribed by the Oaths of Office Act , and (

b) the official oath prescribed by the Oaths of Office Act , to which shall be added the following: That I will as a Barrister and Solicitor conduct all causes and matters faithfully and to the best of my ability; I will not seek to destroy any man's property; I will not be guilty of champerty or maintenance; I will not promote suits upon frivolous pretences; I will not pervert the law to favour or prejudice any man; but in all things conduct myself truly and with integrity; in fine, the Sovereign's interest and that of my fellow citizens I will uphold and maintain according to the law in force in this Province. [ 28 ] In lieu of swearing the oaths, a candidate could make a solemn affirmation: 1958 Amended OOA , s 6. [ 29 ] The only relevant substantive change to the 1958 Amended LPA or the 1958 Amended OOA prior to 1990 was the removal of the promise not to be guilty of champerty or maintenance.

There were also minor changes to modernize phrasing. [ 30 ] In 1990, a new consolidation of the Legal Profession Act came into force, with the oath requirements now at s 44: Legal Profession Act , SA 1990, c L-9.1 , s 44 [ 1990 LPA ]. The 1990 LPA required a candidate to swear the oath of allegiance, the standard official oath, and the oath prescribed by the LSA Rules, which was identical to the amended wording that had previously been added to the official oath. [ 31 ] No substantive changes have been made to the legislative requirements for the oaths since the early 1990s.

However, there were further modernizations in wording as well as the change relating to the demise of the Queen. In 2000, there was a further consolidation that resulted in the current LPA . Evidence [ 32 ] Mr. Wirring filed an affidavit on June 10, 2022 (“Wirring Affidavit”) and a supplemental affidavit on July 22, 2022 (“Wirring Supplemental Affidavit”). [ 33 ] The affidavit of Dr. Harjeet Grewal was filed in support of Mr. Wirring’s application on June 10, 2022 (“Grewal Affidavit”). [ 34 ] No evidence was filed by Alberta or the Law Society. [ 35 ] There were no cross examinations on the affidavits.

Preliminary Objections to Evidence [ 36 ] Alberta opposes the admission of the Grewal Affidavit. Alberta further challenges portions of the Wirring Supplemental Affidavit. Objection to Expert Evidence

[37] Alberta opposes the Grewal Affidavit on the basis that it includes an unqualified expert opinion. Alberta argues that noapplication has been brought to have Dr. Grewal qualified as an expert; his evidence does not comply with rule 5.34 of the Rules ofCourt; there is no completed Form 25, and any expert evidence needs to be introduced as it would be at trial: Alberta Rules of Court, AltaReg 124/2010, vol 1, rule 5.34 [Rules of Court]. [38] Mr. Wirring disagrees and notes that rule 6.11(1)(

a) of the Rules of Court permits the filing of expert evidence. [39] Both parties rely on ANC Timber Ltd v Alberta (Minister of Agriculture and Forestry), 2019 ABQB 653 [ANC]. In ANC,the Court considered an application to strike an affidavit that contained expert opinion evidence. The Court noted that opinion evidenceis generally inadmissible, but an exception is made for matters requiring specialized knowledge: White Burgess Langille Inman vAbbott and Haliburton Co, 2015 SCC 23 at paras 14-15.

Courts are to perform an analysis of opinion evidence, “comparing the benefitsto the potential harm to the trial process that may flow from the admission of the evidence”: ANC at para 100. [40] Rule 6.11 permits expert evidence to be admitted on interim motions and in affidavit form: ANC at paras 113-114. The onusis on the party tendering expert opinion evidence to establish its admissibility: ANC at para 115.

Further, “expert evidence ought to beintroduced as it would at trial: the proposed expert's qualifications and scope of opinion should be precisely defined, and the substance oftheir opinion clearly expressed. Doing so will not only avoid surprise, it will also avoid any call for judicial sleuthing or intervention”:ANC at para 124. [41] In this case, Dr. Grewal set out his qualifications and the scope of his opinion in his affidavit. They are impressive. Dr.Grewal holds a PhD from the University of Michigan in Asian Languages and Cultures. His area of expertise is Religious Studies, with afocus on the Sikh faith.

He is an Adjunct Assistant Professor in the Department of Classics and Religion at the University of Calgary. Hehas written academic articles, contributed chapters to books and spoken at conferences on a variety of topics related to Sikhism. He hastaught courses at post secondary institutions on numerous topics including religion and an introduction to Sikhism. He is currently theassociate editor of Sikh Formations: Religion, Culture, Theory and is a member of several organizations including the World SikhOrganization. [42] In his affidavit, Dr.

Grewal deposes that he was retained “as an expert witness to provide context to Sikhi and the practices ofcertain members of the faith and their significance to them, including submission to the Akal Purakh or divine being in Sikhi as a part ofthe Khande ki Pahaul ceremony to enter the Khalsa to become amritdhari Sikhs.” [43] There is no doubt that Dr. Grewal’s opinion provides information that is both necessary, as it outside the expertise of thisCourt, and relevant to Mr. Wirring’s ability to swear the oath based on the tenets of his faith: R v Mohan, [1994] 2 SCR 9 at 23, (SCC).

There is no exclusionary rule engaged. [44] I have no concerns with Dr Grewal’s qualifications, nor were any raised by Alberta. He is a properly qualified expert. Theaffidavit was filed months before the hearing, so there was no element of surprise. Alberta chose not to bring a motion to challenge theevidence, nor did it seek to cross-examine Dr. Grewal. The scope of his opinion is clearly articulated.

He has certified that he is aware ofhis duty as an expert to assist the Court and not to be an advocate to any party. [45] There would be significant benefit to admitting the evidence with no corresponding harm. [46] I therefore find the Grewal Affidavit is admissible. Objection to Wirring Supplemental Affidavit [47] Alberta opposes portions of the Wirring Supplemental Affidavit, including Exhibits 1 and 3, paragraph 12 and paragraphs 17-21. [48] Exhibit 1 is a document containing the text of the oaths for the bar admission ceremony in Alberta. Alberta argues Exhibit 1 ishearsay and therefore inadmissible.

Similar concerns about hearsay are raised with paragraph 12 and Exhibit 3 of the WirringSupplemental Affidavit. Exhibit 3 states that it is the minutes from a 1983 meeting of the Law Society of British Columbia regardingtheir oath of allegiance. Paragraph 12 purports to summarize the contents of Exhibit 3. [49] I agree with many of the concerns raised by Alberta. [50] Hearsay is inadmissible in an affidavit being used to dispose of all or part of a claim.

Such affidavits must be sworn based onpersonal knowledge: rule 13.18(3); Attila Dogan Construction and Installation Co v AMEC Americas Ltd, 2015 ABQB 120 at paras55-63 [Attila Dogan]; Pure Environmental Waste Management Ltd v Lonquist Field Service (Canada), ULC, 2022 ABQB 30 at paras45-47. This ensures that the evidence being considered to finally dispose of legal rights is limited to evidence that would be admitted attrial.

As this Court noted in Attila Dogan at paras 59-60: ... rule 13.18 recognizes that where an application concerns disposition of some or all claims in a case, as here, the Court requiresevidence to meet the standards required at trial.

As Veit J. states in Murphy v Cahill, 2012 ABQB 793 (Alta Q.B.) at para 25: It's a sensible rule because litigants shouldn't be vulnerable to having their rights finally determined by evidence that would not beadmissible at trial, and relying on inadmissible evidence is like having no evidence at all. ... 13.18(3) clearly provides that an affiant must support his or her sworn statements in a final application with "personal knowledge."This requirement embodies the common law rule against hearsay – an affiant must be capable of being tested by cross-examination onhis or her own knowledge. [51] Even if this were an interlocutory application, where an affidavit can be sworn on information and belief, the source of theinformation must be disclosed.

Although business records may fall under an exception to the hearsay rule, authentication is typically

required: Attila Dogan at paras 80-86 citing R v Schwartz, [1988] 2 SCR 443 at 476, (SCC); R v Monkhouse, 1987ABCA 227 at para 24. [52] Exhibit 3 may be a business record, but its source and authentication are not clear. It also appears this may be an excerpt of arecord. Therefore, Exhibit 3 and Mr. Wirring’s

summary of the contents of Exhibit 3 at paragraph 12 of the Wirring SupplementalAffidavit are inadmissible. [53] Although Exhibit 1 suffers from the same frailties, the contents of Exhibit 1 are already before this Court. The Oaths are setout in the legislation and in the LSA Rules described above. For that reason, I decline to strike Exhibit 1. [54] Alberta also challenges paragraphs 17-21 of the Wirring Supplemental Affidavit on the basis that Mr. Wirring has providedlegal opinion and argument based on his

interpretation of the legislative history of the various oaths. [55] This type of evidence is generally considered improper, as deponents are restricted to giving evidence on matters of personalknowledge on the facts in issue. In Sahaluk v Alberta (Transportation and Safety Board), 2013 ABQB 683 at paras 35-36, the Courtnoted: There is no dispute between the parties as to the nature of the general rule – affidavit evidence should not include argument or theopinion of lay persons. Alberta Human Rights Commission v.

Alberta Blue Cross Plan, 1983 ABCA 207 , 48 A.R. 192, 193(C.A. 1983) ("affidavits ought to be confined to evidence"); Alberta Treasury Branches v. Leahy, 1999 ABQB 185 , 234 A.R.201, 228 (Q.B. 1999) ("The purpose of affidavit evidence is to place the necessary facts before the court and should not containargument, opinions or conclusions"); ...The deponent who gives evidence of which he or she has personal knowledge and is restricted tothe facts-in-issue provides the court with material which will assist it to discharge its fact-finding role.

Seldom will it be the case that alayman in constitutional litigation can provide an opinion which will be reliable and assist the court. ...Paragraphs 19, 20, 24, 25 and 26 of Mr. Savage's affidavit and paragraphs 6, 11 and 18 of Mr. Pearse's affidavit incorporated opinionsand argument which are best left to counsel based on facts established in accordance with the rules of evidence. Canada Post Corp. v.Smith, (ON SC), 20 O.R. (3d) 173, 188 (Div. Ct. 1994) (the striking of an entire affidavit of a lawyer not qualified asan expert was upheld); Bell Canada v.

Canadian Human Rights Commission, (FC), [1991] 1 F.C. 356, 361 (Tr. Div.1990) ("The respondents may instruct their counsel to posit such

interpretations of the statute in oral or written argument but therespondent qua deponent ... cannot be permitted to give ... her

interpretation of the statute law")... [56] Notwithstanding such concerns, I decline to strike paragraphs 17-21 of the Wirring Supplemental Affidavit because Mr.Wirring’s subjective religious beliefs are a required element in the

section 2(

a) Charter analysis: Syndicat Northcrest v Amselem, 2004SCC 47 at paras 65 and 69 [Amselem]. Although the impugned paragraphs are a personal

interpretation of the Oath of Allegiance,including Mr. Wirring’s

interpretation of the nature and legislative purpose of the Oath of Allegiance, such

interpretation is part of whatgrounds Mr. Wirring’s Charter claim. Mr. Wirring’s concerns with the Oath of Allegiance are based on the interaction between hissubjective religious beliefs and his

interpretation of the Oath of Allegiance. Mr. Wirring’s

interpretation of the Oath of Allegiance istherefore essential to understanding Mr. Wirring’s claim that his Charter rights have been violated. Affidavit Evidence Wirring Affidavit [57] The Wirring Affidavit provides helpful context for Mr. Wirring’s claim. [58] Mr. Wirring was born and raised in Edmonton, Alberta, where he continues to reside with his family. His parents wereimmigrants to Canada. Mr. Wirring was raised in accordance with the tenets of his Sikh faith. He regularly attended the Gurdwara, whichis the spiritual assembly for Sikhs. At age 13, Mr.

Wirring participated in the initiation ceremony called Khande ki Pahaul, where hecommitted himself to living in strict accordance with his faith. [59] By participating in the initiation ceremony, Mr. Wirring was granted membership in the Khalsa and thereby became anamritdhari Sikh. His grandparents are also amritdhari Sikhs. Mr. Wirring received much guidance from his grandfather. [60] Mr. Wirring has a law degree and has completed his articles. He has met the requirements for admission to the LSA.However, the bar admission ceremony requires he swear the Oath of Allegiance. [61] Mr.

Wirring deposes, in part, that: As a member of the Khalsa that collectively represents the Guru, it is not possible for me to swear an oath of allegiance to QueenElizabeth or any other religious or political entity as doing so would forsake my vows and identity, and would constitute a desecration ofthe 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.

The submission to the Guru and the Khalsa at the Khande ki Pahaul ceremony includes an oath that every amritdhari Sikh must take.The oath is a prerequisite to being able to participate in the initiation ceremony. Every candidate is questioned whether they are ready tocommit their life to the Guru and Khalsa and asked to confirm they will not pledge allegiance or submit to any other figure or entity -whether religious, political, or otherwise. This is a commitment to the Guru and Khalsa, requiring one to surrender themselves to theircollective will.

We sacrifice our individual identity, and desires and interests, to become members of the Khalsa and commit to the goalof sarbat da bhala. There is nothing above this commitment. Our sole allegiance is declared as belonging to the Guru and Khalsa. 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. My devotion to the Akal Purakh through my unwavering allegiance to the Guru and Khalsa must be absolute if I am to remain an amritdhari Sikh ... However, the oath I made to Akal Purakh through the Guru and Khalsa at the Khande ki Pahaul ceremony means that I cannot pledge an oath of allegiance to any other sovereign, as is required to become a lawyer in Alberta.

By swearing or affirming an oath of allegiance to Queen Elizabeth the Second, her heirs and successors, I would be denouncing the oath I have already made to the Guru and Khalsa. Wirring Affidavit at paras 14-19. [ 62 ] Mr. Wirring further deposes that if he is required to take the Oath of Allegiance, he may have to relocate to another province, away from his extended family and community, where an oath of allegiance to the Crown is either not required or an alternative is available. [ 63 ] Further, Mr.

Wirring deposes that being required to take the Oath of Allegiance conveys that he is not equal to others in Alberta because of his faith. He states that the Oath of Allegiance reinforces 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. Wirring Supplemental Affidavit [ 64 ] The Wirring Supplemental Affidavit addresses aspects of Alberta’s application to strike. Mr.

Wirring reiterates that it does not matter if the Oath of Allegiance is spiritual or secular because he cannot pledge an oath of allegiance to any entity other than Akal Purakh. [ 65 ] In his affidavit Mr. Wirring defines the Official Oath and LSA Oath singularly as the “LSA Oath”, likely because they are recited together at the bar call ceremony. However, for consistency I will used the defined terms set out above. [ 66 ] Mr. Wirring deposes that the Official Oath and LSA Oath are consistent with his religious beliefs and values, as they are not an oath of allegiance to an entity other than Akal Purakh. Mr.

Wirring notes “[r]ather, the [Official Oath and the LSA Oath are] an oath to act faithfully and competently as a lawyer, and to respect the rule of law and advance the public interest” and are “a commitment to the betterment of my community through my work as a lawyer.” [ 67 ] Although he respects the contents of the Official Oath and LSA Oath and is willing to commit himself to the obligations those oaths impose on him as a Barrister and Solicitor, he “cannot provide the [Oath of Allegiance] because it contravenes the oath [he made] to Akal Purakh” and prevents him from “continuing to live as an amritdhari Sikh and a member of the Khalsa, which forms the core of [his] identity and sense of self.” [ 68 ] Further, Mr.

Wirring notes that: I do not and cannot view the [Oath of Allegiance] as a symbolic commitment to the constitution of Canada and its system of democratic governance. It is an oath of allegiance to the Queen, and her heirs and successors. It is evident that this is the nature of the oath based on the language found in the [Oath of Allegiance]. ... [Alberta] can claim that the [Oath of Allegiance] is something other than how I interpret it based on the language found and presence of the [LSA Oath and the Official Oath]. However, my faith and devotion to Akal Purakh requires me to be true to my conscience.

I cannot consider the [Oath of Allegiance] to be anything other than an oath of allegiance to the Queen and her heirs and successors ... Wirring Supplemental Affidavit at paras 18 and 21. [ 69 ] Mr. Wirring reiterates that he is willing to take the other oaths which he states are “an oath or commitment that Barristers and Solicitors will practice in accordance with the rule of law, which underpins Canada’s system of governance, and serve both the Sovereign’s and the public’s interest by working diligently, faithfully and competently in their capacity as lawyers.” Grewal Affidavit [ 70 ] Dr.

Grewal provides background on the origins, development and basic tenets of Sikhism including with respect to a group of Sikhs known as the Khalsa, who adhere to a more stringent code that requires strict maintenance of the oath they have given to Akal Purakh. [ 71 ] Dr. Grewal deposes that, in his opinion, Mr. Wirring has accurately represented in his affidavit the reason that he cannot pledge an oath of allegiance to the Queen or Crown. [ 72 ] Specifically, Dr.

Grewal opines: In the process of being given Khande ki Pahaul, one surrenders the complete self to Akal Purakh and pledges to live according to the teachings and wisdom of Sri Guru Granth Sahib. The individual participating in the initiation must accept Akal Purakh as the True Sovereign, or Sacha Patshah, and pledges to serve only that being by protecting Truth and Justice in the world. Khanda ki Pahaul is conducted by five Singhs, who for the purposes of the ceremony symbolizes the sovereign authority of Akal

Purakh. The initiate is required to give their head to the Guru, which implies, and signifies, that the individual must surrender their complete self – including the mind, body, and being to Akal Purakh. This is accomplished by using a broadsword to mix sweetened water over which specific verses are recited. The water is then administered to the initiate where upon they swear strict fealty to the One True Sovereign. From that point on the individuals live in accordance with Hukam, study the Guru Granth Sahib daily, and practice martial arts to defend the weak and promote justice.

It is not possible for a member of the Khalsa to pledge allegiance to any other entity because of the implications of the Khande ki Pahaul ceremony are such that doing so would break the oath given to Akal Purakh. The initiate relinquishes all other worldly allegiances in order to enter the Khalsa. For a member of the Khalsa, pledging allegiance to any other entity, living or dead, would be tantamount to reneging on the vows already made.

Once the individual has entered the Khalsa they are not able to commit themselves or make abiding pledges upon any other figure or entity as it would excommunicate from them from the Khalsa. I have read the affidavit of the Applicant Prabjot Singh Wirring (“Wirring”). It is my opinion that the information in Wirring’s affidavit accurately captures the reason why he is unable to pledge an oath of allegiance to the Queen or Crown due to being a member of the Khalsa.

Wirring’s explanation reflects the aspect of the Sikh tradition that I have set out above: to swear an oath of allegiance to any other entity aside from the Akal Purakh would be contrary to the beliefs in Sikhi that Wirring subscribes to and result in his ex- communication from the Khalsa. Wirring would have to denounce religious commitments and leave the Khalsa to swear the oath of allegiance and become a member of the Law Society of Alberta. Grewal Affidavit at paras 21-25. [ 73 ] Although Dr. Grewal does not reference which of the Mr.

Wirring affidavits he is referring to, I note his affidavit was affirmed June 8, 2022. Given the Wirring Supplemental Affidavit was not affirmed until July 22, 2022, it is clear Dr. Grewal is relying on the Wirring Affidavit. Issues [ 74 ] The issues in this case are: 1) Should the Statement of Claim be struck? 2) Alternatively, should the Court grant

summary judgment? a. What is the meaning of the Oath of Allegiance? b. What is Mr. Wirring’s objection to the Oath of Allegiance? c. Does the Oath of Allegiance violate

section 2(

a) of the Charter ? d. Does the Oath of Allegiance violate

section 15 of the Charter ? e. Are any violations justified pursuant to

section 1 of the Charter ? f. If not, what is the appropriate remedy? Analysis Application to Strike or for

Summary Judgment [ 75 ] Alberta applies to strike Mr. Wirring’s claim pursuant to rule 3.68 for not disclosing a reasonable claim. They argue Mr. Wirring’s claims have been resolved in law and therefore have no prospect of success. [ 76 ] Alternatively, Alberta asks that Mr. Wirring’s claim be summarily dismissed as there is no merit to the claim. [ 77 ] Mr. Wirring asks the court to grant

summary judgment in his favour. Application to Strike [ 78 ] Rule 3.68 states:

(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: (

a) that all or any part of a claim...be struck out; ...

(2) The conditions for the order are one or more of the following: (

b) a...pleading discloses no reasonable claim...;

...

(3) No evidence may be submitted on an application made on the basis of the condition set out in subrule (2)(b). [79] In an application to strike because no evidence is admissible the review is generally limited to the pleadings: Rana v Baker,2022 ABCA 180 at para 5; rule 3.68(3).

Therefore, a court must determine whether, assuming the facts plead are true, there is areasonable prospect that the claim will succeed: R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at para 21. [80] A pleading will be struck where it has “no reasonable prospect of success” or it is “plain and obvious that the claim cannotsucceed”: HOOPP Realty Inc v Guarantee Co of North America, 2015 ABCA 336 at para 21; Tottrup v Alberta (Minister ofEnvironment), 2000 ABCA 121 at para 7. [81] The approach is a generous one; courts should err against striking a novel but arguable claim: Imperial Tobacco at para 21. [82] Alberta argues that Mr.

Wirring is mistaken as to the meaning of the Oath of Allegiance and therefore his claim cannotsucceed. Alberta does not challenge Mr. Wirring’s standing as a devout Sikh who has taken an oath to a divine spiritual figure; rather,Alberta challenges Mr. Wirring’s

interpretation of the Oath of Allegiance as an oath to a sovereign, or a political figure or entity. [83] Alberta’s argument rests on case law from two Canadian courts that interpreted a similar oath under the Citizenship Act, RSC1985, c C-29, s 24,

Schedule [Citizenship Act]. [84] In Roach v Canada (Minister of State for Multiculturalism & Citizenship), (FCA), [1994] 2 FC 406 leave to appeal to SCC denied, 113 DLR 4th 67n [Roach FCA], the Federal Court of Appeal considered the constitutionality of the citizenshipoath which read “I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen ofCanada, Her Heirs and Successors.”[1] [85] Mr. Roach argued that the oath violated his freedom of conscience and freedom of religion under the Charter. Mr.

Roach wasopposed to the content of the oath and stated that his freedom of religion was violated because the Queen was also the head of theAnglican church, and he was not of the Anglican faith. [86] The Attorney General brought an application to strike Mr. Roach’s claim. The Federal Court struck the claim, concluding: The appellant must be aware that Canada is a secular state, and although many of its laws reflect religious tradition, culture, and values,they are, nonetheless, secular, or positivistic in nature.

To grant exemptions of the kind claimed by the appellant would be to permit theimposition of private beliefs, religious or otherwise, on laws of general application, a condition which would be in contradiction with theprinciples of a secular state. ... Roach v Canada (Minister of State for Multiculturalism & Citizenship), (FC), [1992] 2 FC 173 at para 20 [RoachFC]. [87] The Federal Court of Appeal dismissed Mr. Roach’s appeal.

The majority interpreted the oath not as a pledge of allegiance toa monarch, but instead as “a solemn intention to adhere to the symbolic keystone of the Canadian Constitution as it has been and is, thuspledging an acceptance of the whole of our Constitution and national life.” Therefore, “[t]he appellant can hardly be heard to complainthat, in order to become a Canadian citizen, he has to express agreement with the fundamental structure of our country as it is”: RoachFCA at para 93. [88] A similar challenge to the citizenship oath was dismissed by the Ontario Court of Appeal in McAteer et al v Canada(Attorney General), 2014 ONCA 578, leave to appeal refused [2014] SCCA No 444 [McAteer].

In McAteer, the appellants again soughtto challenge the citizenship oath on the basis that swearing the oath would violate their Charter rights to freedom of conscience, religion,and equality. The text of the oath was the same as in Roach FCA. [89] The Court of Appeal rejected the appellants’

interpretation of the citizenship oath and noted that the Supreme Court hasmandated a purposive approach to statutory

interpretation: McAteer at para 6. In applying a purposive approach, the Court found that theliteral

interpretation advanced by the appellants was inconsistent with the history, purpose, and intention behind the oath: McAteer atpara 6. Further, the appellants’

interpretation was divorced from Canada’s history and evolution as a nation and a proper

interpretation ofthe reference to the Queen must be informed by the “evolution of Canada from a British colony into an independent nation anddemocratic constitutional monarchy”: McAteer at para 48. [90] Ultimately, the Court of Appeal opined that the oath was properly understood as an inquiry into “whether a prospectivecitizen is willing to abide by this country’s form of government, a democratic constitutional monarchy ...”: McAteer at para 61.

TheCourt of Appeal further explained that: [a]pplying a purposive and progressive approach to the wording of the oath, with regard to its history in Canada and the evolution of ourcountry, leads to the conclusion that the oath is a symbolic commitment to be governed as a democratic constitutional monarchy unlessand until democratically changed. ...This

interpretation of the oath, as a symbolic commitment to our form of government and theunwritten constitutional principle of democracy, is supported by the legal norms of rationality and coherence. McAteer at para 62. [91] The Court of Appeal concluded that the appellants’ claims should be dismissed as their

interpretation of the oath was based onan incorrect understanding of the oath, which could not form the basis of a Charter challenge for unconstitutionality: McAteer at para 63citing to R v Khawaja, 2012 SCC 69 [Khawaja]. [92] Alberta submits that two appellate courts have considered the proper

interpretation of an oath of allegiance to the Queen and

rejected a plain meaning

interpretation of the oath. They argue that, as in the Roach FCA and McAteer cases, Mr. Wirring’s freedom of religion is not engaged because the Oath of Allegiance is not to an individual, sovereign or entity, but is a commitment to a set of values. Alberta submits that the law is clear and therefore Mr. Wirring’s claim must be dismissed for showing no reasonable chance of success. [ 93 ] Mr. Wirring argues that his case arises in a different context from the citizenship cases and that the purposive approach to

interpretation requires a separate

interpretation of the Oath of Allegiance under the LPA . I agree. [ 94 ] The constitutionality of s 44(2)(

a) of the LPA has never been considered and is a novel question. Although the text of the oath in the Citizenship Act is similar, the purpose, history and context of the provisions differ. Alberta suggests as much in their Reply Brief, noting that in the context of the LPA , the Oath of Allegiance may be better interpreted as requiring an applicant to “express agreement with the legal structure of our country as it is,” with the Queen being the source of all laws in Canada. Therefore, Alberta submits a proper

interpretation might be an oath to confirm one’s commitment to the law. [ 95 ] I agree that the context of the Oath of Allegiance in this case is different. Roach FCA and McAteer are not determinative. [ 96 ] Further, where a Charter argument does not appear to be specious, courts should be hesitant to dismiss claims in their early stages without granting the applicant an opportunity to develop their argument: R v Sappier , 24 FTR 78, [1990] CNLR 90 (Fed Ct Tr Div) at para 8 . [ 97 ] In this case, assuming the facts plead are true, there is a reasonable prospect that the claim could succeed. [ 98 ] I therefore dismiss Alberta’s application to strike. Application for

Summary Judgment [ 99 ] Both parties assert that this case is appropriate for

summary judgment. I agree. [ 100 ]

Summary judgment is appropriate when there is no genuine issue requiring a trial, and where the process permits fact-finding and the application of the law to those facts in a proportionate, timely and cost-effective manner: Hryniak v Mauldin, 2014 SCC 7 at para 49 . [ 101 ] Rule 7.3(1) provides that: A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded.

(2) The application must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met. ... [ 102 ] The case before me is primarily one of legal

interpretation. Alberta does not dispute the sincerity of Mr. Wirring’s religious beliefs. Alberta did not file any evidence and there were no cross examinations on the affidavits. As such, there is no material conflict in the evidence. Therefore, a fair and just outcome can be achieved using the

summary judgment procedures: Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 at para 47 . Meaning of the Oath of Allegiance [ 103 ] At the heart of this decision is the meaning of the Oath of Allegiance. [ 104 ] In considering the meaning of the Oath of Allegiance, it must first be recognized that Canada is a constitutional democracy. The monarch is both the head of state and a symbol of sovereignty: Cirillo v Ontario , 2019 ONSC 3066 at para 11 . [ 105 ] The monarch’s role is evident in the Constitution Act 1867 (UK), 30 & 31 Vict, c 3 , reprinted in RSC 1985, Appendix II, No 5 which states:

Preamble Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom... … Declaration of Executive Power in the Queen 9 The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen. …

Constitution of Parliament of Canada 17 There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons. … [106] In interpreting the Oath of Allegiance this Court is also guided by jurisprudence interpreting similar oaths in the context of theCitizenship Act. [107] In Re Heib, the Federal Court considered the appellant’s conscience-based objection to swearing the Citizenship Act oath, andconcluded that “the oath can be regarded, not as a promise to a particular person, but as a promise to the theoretical political apex of ourCanadian parliamentary system of constitutional monarchy”: Re Heib (1979), (FC), 104 DLR (3d) 422 (Fed Ct TD) atpara 8. [108] In Roach FCA, the majority of the Federal Court of Appeal likewise opined that the oath, properly understood, was anexpression of agreement with “the fundamental structure of our country as it is”: Roach FCA at paras 37 and 93. [109] The Court of Appeal of Ontario in McAteer concluded that notwithstanding the Queen is a person, “in swearing allegiance tothe Queen of Canada, the would-be citizen is swearing allegiance to a symbol of our form of government” and “the unwrittenconstitutional principle of democracy”: McAteer at para 54 and 62. [110] The conclusion in McAteer was partly based on the Court’s historical overview and findings relating to the Queen’s role inCanada over time: McAteer at paras 33-54.

The Court found that as Canada evolved into an independent nation with a constitutionalmonarchy, the reference to the Queen in the citizenship oath also evolved in meaning: The evolution of Canada from a British colony into an independent nation and democratic constitutional monarchy must inform theinterpretation of the reference to the Queen in the citizenship oath. As Canada has evolved, the symbolic meaning of the Queen in theoath has evolved. ... ...Viewing the oath to the Queen as an oath to an individual is disconnected from the reality of the Queen's role in Canada today.

Duringthe heyday of the Empire, British constitutional theory saw the Crown as indivisible. At that time, there was no need to distinguishbetween the sovereign's role as an individual and as the head of the executive; nor was there any need in unitary Great Britain todifferentiate between the roles that the Crown plays. … However, as Canada developed as an independent federalist state, the conception of the Queen (commonly referred to as the Crown)evolved.

Unlike the unitary role of the Crown at the height of the British Empire, its role in Canada is divided into three distinct roles.First, the Queen of Canada plays a legislative role in assenting to refusing assent to, or reserving bills of the provincial legislature orParliament — a role that is performed through the Governor General and the Lieutenant Governors. Second, the Queen of Canada is thehead of executive authority pursuant to ss. 9 and 12 of the Constitution Act, 1867.

Third, the Queen of Canada is the personification ofthe State, i.e., with respect to Crown prerogatives and privileges: Laskin, at pp. 119-20. … As the application judge noted, the Queen of Canada fulfils these varying roles figuratively, not literally. ... Although the Queen is a person, in swearing allegiance to the Queen of Canada, the would-be citizen is swearing allegiance to a symbolof our form of government in Canada. This fact is reinforced by the oath's reference to "the Queen of Canada", instead of "the Queen". Itis not an oath to a foreign sovereign.

Similarly, in today's context, the reference in the oath to the Queen of Canada's "heirs andsuccessors" is a reference to the continuity of our form of government extending into the future. McAteer at paras 48, 50-52, and 54. [111] Another important factor in the Court’s reasoning was the principle of harmonization: McAteer at para 61. The Court inMcAteer considered not just the oath from the Citizenship Act, but also the oath of allegiance in

section 128 of the Constitution Act,1867, noting they were “remarkably similar”: McAteer at para 43. [112]

Section 128 of the Constitution Act, 1867, requires an oath of allegiance be taken by legislative members as follows: Every Member of the Senate or House of Commons of Canada shall before taking his Seat therein take and subscribe before theGovernor General or some Person authorized by him, and every Member of a Legislative Council or Legislative Assembly of anyProvince shall before taking his Seat therein take and subscribe before the Lieutenant Governor of the Province or some Personauthorized by him, the Oath of Allegiance contained in the Fifth

Schedule to this Act; ... [113] The form of oath required by

section 128 is set out in the Fifth

Schedule of the Constitution Act, 1867: I A.B. do swear, That I will be faithful and bear true Allegiance to Her Majesty Queen Victoria. Note. — The Name of the King or Queen of the United Kingdom of Great Britain and Ireland for the Time being is to be substitutedfrom Time to Time, with proper Terms of Reference thereto. [114] The Court of Appeal noted in McAteer that: “[t]he harmonization principle supports the

interpretation that the oath to the Queenof Canada in the Citizenship Act is the response to the implicit inquiry of whether the prospective citizen is willing to abide by thiscountry’s form of government, a constitutional monarchy...”: McAteer at para 61. [115] The principal of harmonization means that “[t]he

interpretation given to a statutory provision must produce harmony bothwithin the statute itself and with other legislation dealing with the same subject matter”: Onyskiw v CJM Property Management Ltd,2016 ONCA 477 at para 43.

[116] In interpreting the Oath of Allegiance in this case, the harmony, coherence, and consistency between statutes dealing with thesame subject matter should also be considered: Bell ExpressVu Ltd Partnership v Rex, 2002 SCC 42 at para 27 citing R v UlybelEnterprises Ltd, 2001 SCC 56 at para 52. [117] The Oath of Allegiance in this case has similar origins as the oaths in the Citizenship Act and the Constitution Act, 1867 and hassimilarly evolved in meaning over time.

The harmonization principle suggests the Oath of Allegiance under the LPA should beinterpreted in a similar manner; not as an oath to the Queen as a person, but as a symbolic oath to our constitutional democracy by thoseseeking to be barristers and solicitors. In this case, the Oath of Allegiance is a requirement for admission as a member of the Law Societyof Alberta.

Future lawyers are being asked to commit themselves to upholding the rule of law, which is a bedrock of our constitutionaldemocracy. [118] I find that, in this sense, the Oath of Allegiance in the LPA is even more profound than the oath to become a citizen. The Oathof Allegiance represents not only a promise to abide by Canada’s form of government, but a promise to maintain and uphold the rule oflaw and the Canadian constitutional system. [119] Lawyers are a vital conduit through which citizens access the courts, and the law: British Columbia (Attorney General) vChristie, 2007 SCC 21 at para 22.

The important role that lawyers play in ensuring access to justice and upholding the rule of law hasrepeatedly been reinforced by the Supreme Court of Canada: Andrews v Law Society of British Columbia, [1989] 1 SCR. 143 at 187, (SCC) [Andrews]; MacDonald Estate v Martin, (SCC), [1990] 3 SCR 1235 at 1265; Fortin v Chretien,2001 SCC 45 at para 49; Law Society of British Columbia v Mangat, 2001 SCC 67 at para 43. [120] Several examples illustrate the significance of such a role within our constitutional democracy. [121] For example, the right to counsel is constitutionally entrenched: Charter

section 10(b). As the Supreme Court of Canada inWood v Schaeffer, 2013 SCC 71 [Wood] explained: Everyone is entitled to seek the advice of a lawyer. This freedom also reflects the importance of the societal role of lawyers in a countrygoverned by the rule of law. Lawyers represent people, communicate legal information, and give advice. The execution of thesefunctions contributes to the maintenance of the rule of law. Indeed, these functions are deemed so important that they are often protectedby strong privileges of confidentiality that are linked to our basic values and constitutional rights.

Wood at para 103. [122] The treatment of solicitor-client privilege within our legal system also underscores the significant role that lawyers play in theadministration of justice and in upholding the rule of law under our constitution. [123] Solicitor-client privilege is now considered a rule of substance. It is a privilege that has acquired constitutional dimensions asboth a principle of fundamental justice and as a part of a client’s fundamental right to privacy.

Solicitor-client privilege is indispensableto the continued existence and effective operation of Canada’s legal system: Canada (National Revenue) v Thompson, 2016 SCC 21 atpara 17; Alberta (Information and Privacy Commissioner) v University of Calgary, 2016 SCC 53 at paras 20 and 41 [U of C].

As asubstantive rule, solicitor-client privilege must remain as close to absolute as possible: U of C at para 43. [124] In U of C the Supreme Court of Canada described solicitor-client privilege this way: It is indisputable that solicitor-client privilege is fundamental to the proper functioning of our legal system and a cornerstone of access tojustice (Blood Tribe, at para. 9). Lawyers have the unique role of providing advice to clients within a complex legal system (McClure, atpara. 2).

Without the assurance of confidentiality, people cannot be expected to speak honestly and candidly with their lawyers, whichcompromises the quality of the legal advice they receive (see Smith v. Jones, (SCC), [1999] 1 S.C.R. 455, at para. 46).It is therefore in the public interest to protect solicitor-client privilege.

For this reason, “privilege is jealously guarded and should only beset aside in the most unusual circumstances.” U of C at para 34. [125] The integral role that a member of the Law Society plays in upholding the rule of law and in ensuring the administration ofjustice is not impugned is further reflected in the Law Society’s Code of Conduct.

For example, rule 5.6-1 states that “A lawyer mustencourage public respect for and try to improve the administration of justice”: Code of Conduct (Calgary: Law Society of Alberta, 2023),ch 5.6-1. [126] The Oath of Allegiance is the symbolic commitment made by prospective lawyers to this important role within ourconstitutional democracy. [127] Chief Justice Green, formerly of the Supreme Court of Newfoundland and Labrador, explained the symbolic nature of the Oathof Allegiance taken at a bar call this way: The other oath or affirmation which you have taken here today is the oath of allegiance to Her Majesty the Queen.

The significance ofthis public declaration does not involve some feudal notion of personal fealty to a sovereign. That concept was repudiated by the EnglishBarons at Runnymede at the time of the issuance of Magna Carta. In the Canadian context, whether one believes in a constitutionalmonarchy or in a republic, or some other form of democratic government, the fact remains that the Queen is the constitutional head ofthis country.

The Constitution Act federally united the provinces into one dominion “under the Crown of the United Kingdom”(preamble), executive government and authority was “vested in the Queen” (s. 9) and the legislative power was defined as consisting ofQueen, the Senate and the House of Commons (s. 17). …

As I have noted, the consequence of swearing an oath or affirming allegiance to the Queen does not involve a declaration of one’s personal belief in the appropriateness of constitutional monarchy as opposed to some other form of democratic system; rather, it represents an acknowledgement that person [sic] such as lawyers, who are given a special place within our constitutional system of government, pledge to support our constitution and the rule of law which it represents.

Quoted in “The Swearing of Oaths,” by Sheri Wicks, Squid pro quo , (Winter 2003) at 23. [ 128 ] As the courts in Roach FCA and McAteer concluded in the context of the citizenship oath, I also find that the Oath of Allegiance is not an oath to the Queen as a person but an oath to uphold the rule of law in accordance with our constitutional form of government. [ 129 ] I have considered Mr. Wirring’s argument regarding the

interpretation of the Oath of Allegiance based on its legislative history. Indeed, the oath as it existed until 1958 included wording that implied notions of allegiance to the sovereign as an individual, such as defending the sovereign from “traitorous conspiracies ... against [his/her] person, crown and dignity” and “disclos[ing] ... all treasons, traitorous conspiracies or attempts ... against [him/her] ...”. [ 130 ] However, that form of the oath of allegiance was changed in 1958 when the oath moved from the Legal Profession Act to the Oaths of Office Act : 1958 Amended LPA; 1958 Amended OOA.

At that time, the oath was shortened and the wording pledging protection for the Queen from treason or traitors was removed. [ 131 ] I agree with the Court of Appeal in McAteer that, as Canada evolved from a British colony into an independent nation with a constitutional monarchy, the meaning given to “the Queen” in oaths of allegiance has also evolved. The reference to the Queen may have once been to an individual, but over time has become a symbolic reflection of our form of government, a constitutional monarchy: McAteer at paras 48, 50-52, 54 .

In this case, I also find the reference to the Queen in the Oath of Allegiance has evolved and is purely symbolic. [ 132 ] Mr. Wirring also argues that the Oath of Allegiance must have a different meaning from the LSA Oath.

He argues it would be contrary to the principle against tautology to have the Oath of Allegiance and the LSA Oath both require candidates to commit to our form of government and to uphold the law, noting the LSA Oath asks a candidate to “uphold and maintain the Sovereign’s interest and that of the public according to the law in force in Alberta.” The principle against tautology presumes that legislature would not draft legislation in a redundant manner: Placer Dome Canada Ltd v Ontario (Minister of Finance) , 2006 SCC 20 at para 45 . [ 133 ] I disagree. The oaths at issue are now from different sources.

The Oath of Allegiance is in the OOA , which is drafted by the legislature, whereas the LSA Oath is drafted by the Law Society. The “legislature” is therefore not drafting both oaths. In any event, I see any duplication as more of a historical anomaly related to the evolution of the provisions as discussed above. Mr. Wirring’s Objection to the Oath of Allegiance [ 134 ] As will be discussed below, the law relating to freedom of religion under the Charter requires this Court to consider Mr. Wirring’s subjective religious beliefs: Amselem at para 43 . Regard must be had to Mr.

Wirring’s own evidence to understand his subjective beliefs. [ 135 ] Mr. Wirring deposes that “it is not possible for me to swear an oath of allegiance to Queen Elizabeth or any other religious or political entity...” and that “I cannot swear allegiance or subservience to another sovereign”: Wirring Affidavit at paras 14 and 17. [ 136 ] Nevertheless, Mr. Wirring deposes that he has no issue swearing the LSA Oath, which includes that he will “uphold and maintain the Sovereign’s interest and that of the public according to the law in force in Alberta”: Wirring Supplemental Affidavit at para 8. [ 137 ] Mr.

Wirring’s affidavits clearly state that his “concern is not that the Queen is a spiritual or secular being, but that an oath of allegiance must be pledged to an entity other than Akal Purakh...”: Wirring Supplemental Affidavit at para 5. Mr. Wirring further deposes that he cannot consider the Oath of Allegiance as anything other than an oath to the Queen in a literal sense, based on his review of the legislative history and present legislation: I do not and cannot view the [Oath of Allegiance] as a symbolic commitment to the constitution of Canada and its system of democratic governance.

It is an oath of allegiance to the Queen, and her heirs and successors. It is evident that this is the nature of the oath based on the language found in the [Oath of Allegiance]. It is also evident that this is the nature and purpose of the [Oath of Allegiance] given the existence and content of the [LSA Oath and the Official Oath].

The [LSA Oath and the Official Oath are] an oath or commitment that Barristers and Solicitors will practice in accordance with the rule of law, which underpins Canada’s system of governance, and serve both the Sovereign’s and the public’s interest by working diligently, faithfully, and competently in their capacity as lawyers. The [Oath of Allegiance] serves a different purpose based on the language contained and it does not seem plausible or reasonable that an individual would be required to provide two different oaths that serve the same purpose to be permitted to practice law in Alberta.

The experience of other jurisdictions also leads me to believe that the [Oath of Allegiance] and [the LSA Oath and the Official Oath] serve different purposes, with the latter reflecting a commitment to practice my profession while upholding the public interest and rule of law, which underpins Canada’s system of governance, while the former is an oath of allegiance to the Queen. [Alberta] can claim that the [Oath of Allegiance] is something other than how I interpret it based on the language found and presence of the [LSA Oath and the Official Oath].

However, my faith and devotion to Akal Purakh requires me to be true to my conscience. I cannot consider the [Oath of Allegiance] to be anything other than an oath of allegiance to the Queen and her heirs and successors given the rational I have set out above...

I am happily willing to take the [LSA Oath and the Official Oath]... Wirring Supplemental Affidavit at paras 18-22. [138] In addition to Mr. Wirring’s clearly stated belief that he cannot swear allegiance to an entity other than Akal Purakh, Mr.Wirring’s counsel also asserted in argument that Mr. Wirring cannot pledge allegiance to a concept. [139] Alberta disagrees that Mr. Wirring’s evidence suggested that he could not pledge allegiance to a concept. Alberta argues thatthe use of the word “entity” in his affidavits made clear that Mr.

Wirring was referring to a figure with a physical existence rather than toan ethereal concept. Alberta relies on the Cambridge Dictionary definition of “entity” that includes “something that exists apart fromother things, having its own independent existence.” [140] Counsel for Mr. Wirring argues that Alberta’s

interpretation of “entity” is too narrow. He submits that an entity means anythingthat exists independently from anything else, including an object or subject, physical being, abstraction, concept, or “literally anything.”The Webster’s Dictionary definition of “entity” includes the following

definitions: entity: 1 a: independent, separate, or self-contained existence; b(1): the existence of something as contrasted with its attributes orproperties, (2): the essence, fundamental nature, or real being of something; 2: something that has objective or physical reality anddistinctness of being and character; something that has independent or separate existence; something that has a unitary and self-containedcharacter; 3: an abstraction, ideal, conception, object of thought, or transcendental object.

Webster’s Third New International Dictionary of the English Language Unabridged (Springfield, MA: Merriam-Webster, 2002) subverbo “entity”. [141] Counsel for Mr. Wirring notes the third definition includes “an abstraction, ideal, conception, object of thought, ortranscendental object.” [142] Alberta acknowledges that entity could include such meaning. However, in the context of Mr. Wirring’s affidavits, and his useof the terms “any other entity, living or dead,” a “sovereign,” a “figure,” or “Queen Elizabeth or any other religious or political entity,”Alberta argues that Mr.

Wirring was clearly using “entity” to refer to the second definition, as “something that has objective or physicalreality .... [or] independent or separate existence ... [or] a unitary and self-contained character.” [143] I accept Alberta’s submissions on this point. Mr. Wirring’s own evidence does not indicate that he is unable to swear an oath toan abstract concept. Mr. Wirring’s affidavits do not use the word “concept” and do not use the word “entity” in a manner consistent withan entity being an abstraction or conception.

The Grewal Affidavit also uses the word “entity” in the sense of the first and seconddefinitions from Webster’s Dictionary. The Grewal Affidavit does not use the word “concept” and instead refers to a prohibition fromswearing allegiance to a “created being,” a “figure or entity,” an “... entity, living or dead,” or to an “entity aside from Akal Purakh”. [144] Mr. Wirring’s affidavits and the Grewal Affidavit, viewed holistically, make clear that Mr.

Wirring’s objection to the Oath ofAllegiance is premised on it being sworn to an entity in the traditional sense: something with an objective or physical reality, anindependent or separate existence, or a unitary and self-contained character. Mr. Wirring’s concern with the Oath of Allegiance is that itis an oath of allegiance to the Queen, and he “do[es] not and cannot view the [Oath of Allegiance] as a symbolic commitment to theconstitution of Canada and its system of democratic governance.” [145] Given Mr.

Wirring’s stated willingness to swear the other oaths, which reference abstract concepts like the Sovereign’s interest,the public interest, and the rule of law, it is evident that he is not religiously prohibited from swearing oaths to “literally anything.” [146] I therefore find that Mr. Wirring’s subjective religious belief based on his evidence, is that he cannot swear an oath ofallegiance to an entity, living or dead, secular, or spiritual, other than to Akal Purakh.

Section 2(

a) of the Charter– Freedom of Religion Scope of Freedom of Religion [147] In accordance with

Section 2(

a) of the Charter, everyone possesses the fundamental freedom of conscience and religion. [148] The tenets of freedom of religion were first articulated by Dickson J in R v Big M Drug Mart Ltd, [1985] 1 SCR 295, (SCC) [Big M Drug Mart] where he noted: ... The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right todeclare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship andpractice or by teaching and dissemination. But the concept means more than that.

Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will ofanother to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot besaid to be truly free. ... Freedom in a broad sense embrace both the absence of coercion and constraint, and the right to manifest beliefsand practices.

Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or thefundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience. Big M Drug Mart at 336-337.

[149] Accompanying the freedom from coercion is the concept of a duty of neutrality by the state. This means that while the staterecognizes and protects the importance of religion and religious practices in many people’s lives, the role of the government is to act as aneutral intermediary that does not prioritize one religion over another, or religious belief over non-belief.

The goal is to ensure a neutralpublic space that allows individuals to live freely in a multicultural society and participate in public life regardless of their beliefs:Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 at paras 71-72 and 74-75. [150] In order to establish that a claimant’s freedom of religion under

section 2(

a) has been infringed, a two-step test is engaged. First,a claimant must demonstrate that he or she sincerely believes in a practice or belief that has a nexus with religion. Second, the claimantmust demonstrate objectively that the impugned state conduct interferes with his or her ability to act in accordance with that practice orbelief in a non-trivial manner: Amselem at para 65 and Ktunaxa Nation v British Columbia (Forests, Lands and Natural ResourceOperations), 2017 SCC 54 at para 68. [151] If a claimant cannot satisfy this test,

section 2(

a) is not engaged. If the test is satisfied, a court will consider whether theinfringement is justified under

section 1 of the Charter.

Section 2(

a) Principles [152] The Supreme Court in Amselem discussed the principles that apply when considering the

section 2(

a) analysis. [153] The protected right to religious freedom is focused on an individual’s freedom of religious belief. The protection extends to anindividual’s subjective belief that a particular practice or conviction is a part of their spiritual faith and their connection to the divine.Claimants do not need to prove the “objective validity of their beliefs” by comparison to other members of the same religion, nor is itappropriate for a court to make such an inquiry: Amselem at para 43.

A claimant must only show a “sincerity of belief” and not that aparticular belief is valid: Amselem at para 43. [154] Importantly, courts should not inquire whether a particular practice or belief is mandatory, as it is not the state’s role to become“the arbiter of religious dogma.” Further, courts should avoid “judicially interpreting and thus determining, either explicitly or implicitly,the content of a subjective understanding of religious requirement[s]”: Amselem at para 50. [155] Although expert evidence is not necessary to establish a claimant’s subjective belief: [a] claimant may choose to adduce expert evidence to demonstrate that his or her belief is consistent with the practices and beliefs ofother adherents of the faith.

While such evidence may be relevant to a demonstration of sincerity, it is not necessary. ... Amselem at para 54. [156] Once a claimant’s religious freedom is triggered, they must then establish there has been “enough of an interference” toconstitute an infringement under the Charter: Amselem at para 57.

A legislature is not prohibited from imposing any burdens on thepractice of religion; only “non-trivial” burdens or impositions on religious practice are prohibited: Amselem at para 58. [157] In Alberta v Hutterian Brethern of Wilson County, 2009 SCC 37 [Hutterian Brethren], McLachlin C.J., described trivialinterference this way: “Trivial or insubstantial” interference is interference that does not threaten actual religious beliefs or conduct. As explained in [EdwardsBooks], per Dickson C.J.: The purpose of s. 2(

a) is to ensure that society does not interfere with profoundly personal beliefs that govern one's perception of oneself,humankind, nature, and, in some cases, a higher or different order of being. These beliefs, in turn, govern one's conduct and practices.The Constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually bethreatened. For a state-imposed cost or burden to be proscribed by s. 2(

a) it must be capable of interfering with religious belief orpractice. In short, legislative or administrative action which increases the cost of practising or otherwise manifesting religious beliefs isnot prohibited if the burden is trivial or insubstantial: see, on this point, R. v. Jones, (SCC), [1986] 2 S.C.R. 284, perWilson J. at p. 314. Hutterian Brethren at para 32. [158] Any interference must be “objective” interference; a claimant’s assertion of interference is insufficient to ground a claim.

AsDeschamps J. explained in SL v Commission scolaire des Chênes, 2012 SCC 7 at para 23 [SL], a claimant must prove the infringementon a balance of probabilities based on facts that can be established objectively. It is up to the court to objectively analyze the rule, eventor act and decide if there is interference with the exercise of the freedom: It follows that when considering an infringement of freedom of religion, the question is not whether the person sincerely believes that areligious practice or belief has been infringed, but whether a religious practice or belief exists that has been infringed.

The subjective partof the analysis is limited to establishing that there is a sincere belief that has a nexus with religion, including the belief in an obligation toconform to a religious practice. As with any other right or freedom protected by the Canadian Charter and the Quebec Charter, provingthe infringement requires an objective analysis of the rules, events or acts that interfere with the exercise of the freedom. SL at para 24. Is There an Infringement of Mr. Wirring’s Freedom of Religion? [159] This Court must consider Mr. Wirring’s claim in the context of the two-step analysis.

Sincerity of Belief [ 160 ] Alberta accepts that Mr. Wirring is sincere in his beliefs and that he is a devout amritdhari Sikh. I agree. His two affidavits confirm his lifelong devotion to his faith. I note that the Sikhi values of service to community and the pursuit of justice motivated Mr. Wirring’s decision to pursue a career in law. [ 161 ] Further, Mr. Wirring has shown he is a committed Sikh who has demonstrated his absolute devotion to Akal Purakh through the Khande ki Pahaul ceremony. Mr.

Wirring deposes that he sincerely believes that he may not pledge allegiance or subservience to another sovereign or to another entity due to his religious faith. Mr. Wirring states that if he pledges allegiance to another entity, he would no longer be an amritdhari Sikh and he could not live or practice his faith in the manner that he desires. I accept that is his honestly held belief. [ 162 ] Although not necessary, the Grewal Affidavit also confirms that Mr.

Wirring’s beliefs are consistent with the Sikh faith and are consistent with the beliefs of amritdhari Sikhs. [ 163 ] Earlier in this decision, I considered Mr. Wirring’s objection to the Oath of Allegiance. I examined Mr. Wirring’s affidavits, in which he explains his religious beliefs and the requirements those beliefs impose on him. Mr. Wirring’s affidavits spoke to a prohibition from swearing an oath of allegiance to an entity other than Akal Purakh, which I accept. [ 164 ] I found that the evidence did not support that Mr. Wirring is unable to swear an oath to an abstract concept.

In doing so, I am not in any way “determining, either explicitly or implicitly, the content of a subjective understanding of religious requirement[s]”: Amselem at para 50 . Analyzing a claim under s 2(

a) requires the courts to determine that a claimant has a “practice or belief, having a nexus with religion, which calls for a particular line of conduct...”: Amselem at para 56 . While courts are “in no position to be ... the arbiter of religious dogma,” the first stage of the religious freedom analysis requires that courts be capable of understanding the nature of a claimant’s religious practices and/or beliefs as described in the claimant’s own words in affidavits submitted by the claimant: Amselem at para 50 . [ 165 ] I also accept Mr.

Wirring’s own words that he can only see the Oath of Allegiance as an oath to the Queen. However, and importantly, I do not find that portion of his evidence to be part of his sincerely held religious belief. The conclusion that the Oath of Allegiance is an oath to the Queen is Mr. Wirring’s own legal

interpretation. As he deposes, “[Alberta] can claim that the [Oath of Allegiance] is something other than how I interpret it [but] I cannot consider the [Oath of Allegiance] to be anything other than an oath of allegiance to the Queen and her heirs and successors”: Wirring Supplemental Affidavit at para 21. [ 166 ] However, as discussed below, the

interpretation of the Oath of Allegiance is an objective exercise performed by the Court: SL at para 24. Objective Interference by the State [ 167 ] Having found that Mr. Wirring is sincere in his religious beliefs and practices, this Court must next determine whether the state has objectively interfered with those beliefs or practices. For the following reasons, I find that the state has not objectively interfered with Mr. Wirring’s religious beliefs or practices, and therefore Mr. Wirring’s religious freedom has not been infringed. [ 168 ] For Mr. Wirring to establish that his

section 2(

a) rights have been breached, he must prove that the state has infringed his freedom of religion on a balance of probabilities, using facts that can be established objectively: SL at para 23. Without this element of the test, claimants could “conclude themselves that their rights had been infringed and ... supplant the courts in this role”: SL at para 24.

The test therefore requires a court’s “objective analysis of the rules, events or acts” that are alleged to interfere with the exercise of freedom of religion: SL at para 24. [ 169 ] This Court must therefore analyze whether the LPA ’s requirement that prospective lawyers swear the Oath of Allegiance has objectively and non-trivially interfered with Mr. Wirring’s sincerely held religious beliefs or practices. I have found, based on Mr. Wirring’s affidavits, that Mr. Wirring has a sincere religious belief that he cannot swear allegiance to any religious or political entity other than Akal Purakh.

This Court must therefore objectively analyze whether the LPA requires Mr. Wirring to swear an Oath of Allegiance to a religious or political entity other than Akal Purakh. [ 170 ] Mr. Wirring has asserted that the Oath of Allegiance requires him to swear a literal oath to the Queen as a person, and to her heirs and successors. He has explained the reasons why he believes this in his evidence. His

interpretation is based on the language present in the Oath of Allegiance; his understanding that the oath is no longer required in some other jurisdictions; and his conclusion that the Oath of Allegiance must mean something different than the Official Oath and LSA Oath: Wirring Supplemental Affidavit at paras 18-20. [ 171 ] Earlier in these reasons, I considered the meaning of the Oath of Allegiance. I found the Oath of Allegiance is symbolic, not literal, and rejected Mr. Wirring’s

interpretation. I found the Oath of Allegiance is not to the Queen as an individual, nor to her heirs and successors as individual s, but is instead a symbolic oath to uphold the rule of law in accordance with our constitutional form of government. [ 172 ] Because I have found the Oath of Allegiance to be symbolic, Mr. Wirring is not required under the LPA to pledge allegiance to a spiritual or secular entity other than Akal Purakh . Therefore, there is no objective interference with Mr. Wirring’s freedom of religion by the state. [ 173 ] I agree with Alberta that it is Mr.

Wirring’s misunderstanding of the Oath of Allegiance’s meaning, and not the requirement to take the Oath of Allegiance, which is preventing him from admission to the legal profession in Alberta. [ 174 ] As McLachlin C.J. stated in Khawaja at para 82 , a “patently incorrect understanding of a provision cannot ground a finding of

unconstitutionality.” Mr. Wirring’s subjective beliefs about the nature of the Oath of Allegiance, no matter how strongly held, cannot ground a Charter breach if those beliefs are based on an incorrect understanding. [ 175 ] On this point, I agree with the reasoning of the Federal Court of Appeal in Roach FCA and the Ontario Court of Appeal in McAteer .

In both of those cases, the Courts found that any interference with the applicants’ religious beliefs or practices was based on a misunderstanding of the nature of the Citizenship Act oath, rather than the oath itself. [ 176 ] Likewise, in Servatius v Alberni School District No 70 , 2022 BCCA 421 [ Servatius ], the British Columbia Court of Appeal considered a constitutional claim that was based on a claimant’s sincere but mistaken belief. In Servatius , an evangelical Protestant mother claimed that her freedom of religion was infringed when her children’s school hosted a demonstration of Indigenous cul

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