By Heidi J. T. Exner, CFE
Originally published in The Lawyer’s Daily, © LexisNexis Canada Inc.
On May 27 of this year, the Sex Pistols released a new music video for their song “God Save the Queen,” to celebrate this year’s Platinum Jubilee. The revamp combines 1977 footage from original-release performances with, according to one report, “exclusive footage of some of the earliest, most important and influential women fans of the band including Vivienne, Jordan, Debbie and Tracey, Catwoman, Helen of Troy,” and others. If you are like me, your feminist and punk rock heart would have been overjoyed when this new release dropped.
If you’re like many Albertan law students, you might have found the new release of this song fitting to your present circumstances. Within a month of this new video release, news that Edmonton student-at-law Prabjot Singh Wirring attempted to sue the law society and the province of Alberta to allow for him to swear an alternative oath at his bar Call. Wirring is a devout Amritdhari Sikh, and he could not in good conscience swear allegiance to the Queen, as he had already committed himself unquestionably to Akal Purakh, the divine being in the Sikh faith. Wirring told CBC News, “For me, it's a fundamental part of who I am as a person. The requirement to take that oath of allegiance would require me to renege on the vows and the oath that I've already made and [do] a lot of damage to who I am as a person and to my identity.” And frankly, why should he have to do this?
The above-quoted news report indicates Wirring attempted to negotiate with the law society before he discovered this entity’s hands were tied. Per s. 44 of the Legal Profession Act, all lawyers must declare in open court before a judge or judges “an oath of allegiance in the form prescribed by the Oaths of Office Act,” which is a provincial enactment. The law society told Wirring that he would therefore have to take his case up with the province of Alberta. So far, he is unsuccessful in his battle, despite a large show of support from the law society and legal community.
The law society’s support seems positive, but I have to wonder why the language in s. 44 of the Legal Profession Act cannot be changed to include an alternative oath. Why must it specify this oath of allegiance and not provide other options to its new members? The law society is pointing to the Oaths of Office Act and overlooking the option that the Legal Profession Act is what demands a specific type of pledge within this Act.
Like many other professionals, before a student-at-law is admitted to the bar in Alberta, they must swear an oath. Unlike other professionals (yes, I checked with friends who are doctors, engineers, accountants and even one architect), the lawyers’ oath in Alberta specifically must contain the Oaths of Office Act’s language as follows: they shall “be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors according to law. So help me God.” It is the Legal Profession Act of Alberta that dictates this specific language within the Oaths of Office Act though.
Oaths, in general, make me uncomfortable: one should not need to promise anyone but oneself to do and be their best. If a group of people require assurances to this effect, then where is the trust? This particular oath takes my discomfort a step further, though. It is pretty Christian-y sounding and steeped in colonialism. Section 4 of the Oaths of Office Act provides an interesting alternative, that “[a] person who is required by a statute of Alberta to take an oath prescribed by this Act may make a solemn affirmation instead of taking the oath,” whereby one is “permitted” to substitute “‘solemnly affirm’ for the word ‘swear,’” and omit the “God” nonsense. Could the law society not allow for this reasonable substitute? Even if it did, this allegiance to the Queen would still be a colonial pledge in solemnly affirmed clothing. It is interesting that it seems the law society was not at least providing latitude here, though.
Whether a new lawyer is “swearing” or “affirming” this oath, however, makes little difference. Every lawyer who repeats these words before a judge is a cog in the broken machine from the outset. Why are lawyers not swearing to promote justice, to seek truth, or promote the public good? What does Queen Liz have to do with being a good lawyer?
And our figurehead is not what she seems
Queen Elizabeth II wears a lot of hats, literally and figuratively. The two figurative hats I am concerned about are the heaviest ones: her role as head of the United Kingdom and the Commonwealth (the “Empire” — but we don’t use that word anymore) and her role as head of the Church of England.
Ruling an international network of land acquired by force and coercion doesn’t win one any popularity contests in 2022. Nobody is buying the divine right line that made for an appropriate response for centuries to the question “Why?” If I sent my henchmen into your home to steal your children, declare your kitchen mine and proceeded to use it for baking goods that turned a profit for me, and if my only justification was that I had some “divine right” to do it (oh, and because you are a lowly “savage,” of course), then you might have a problem with that. It is common knowledge these days that the Commonwealth was built over hundreds of years of similar behaviour. Subjugating the inhabitants of the land that looked most profitable to the Brits, over the span of hundreds of years, is precisely how this grand “Empire” was built. The carnage and generational trauma of this process is an open wound, and Canada is making great strides to tend to this wound, but it will take time and work to correct some wrongs. Queen Liz doesn’t even actively rule Canada these days (the Governor General does, in her stead), but she sure does collect money from Canadian taxpayers.
Now let’s talk about the church. This “God” that is supposedly helping new lawyers is not just any God; it is a Christian one. You know the one. “He” is often depicted as the old dude wearing a (rather pagan-looking) robe and sandals. White complexion and long, gray-blond beard. Sits on clouds and looks down on everyone (nope, no metaphor about being judged there). This cartoon character is the one that supposedly gave the “divine right” to Queen Liz to call the Commonwealth her own.
What is it about practising law that warrants a pledge to this figurehead and her God? To answer that question, it is helpful to examine the history of the legal profession. If you are a 1L, you will learn a bit about this soon during your first Foundations course. If you are a 2 or 3L, this is a refresher — and a reminder that history usually provides important pieces of all kinds of puzzles.
Oh, God save history. God save your mad parade here
Without the Crown, the legal profession as we know it would not exist. Courts as we know them are, in many ways, symbols of society’s evolution away from the direct rule of the monarch. However, our judicial system originally served, and arguably still serves, as a proxy to the Crown. The original Court of King’s Bench was literally a bench in the King’s court, in which criminal matters were heard. The Court of Common Pleas, which primarily dealt with civil cases, was mandated per the Magna Carta, which is largely considered one of the first constitutional documents. However, the Catholic Church had a huge hand in its drafting, of course. By about the late 17th century, we saw the English Bill of Rights. This document, in theory, gave power back to the people by making the voice of Parliament more prominent. No more cruel or unusual punishment! No more taxing people without Parliament’s approval! [Free speech* (*in Parliament only)!] You get the idea.
As Parliament legislated and statutes emerged, it was lawyers and judges who would hear challenges from those who were subject to various pieces of legislation. Somehow, over the next few centuries, we shifted from the law acting as a proxy to the Crown to the law acting as a proxy to the government. The idea is that the law should be created by and for the “people.” Alas, here we are in 2022, in this strange place where we still have a “King’s/Queen’s Bench” and must pledge allegiance to the Queen and the God that supposedly justifies her existence as though lawyers are still proxies to the Crown.
We mean it, man
The legal maxim, “Ubi jus ibi remedium” is a fitting way to conclude this article. It translates to, “Where there is a right, there is a remedy,” and it is often used as a reminder that the law or the courts are intended to be the servants of the people. Where law establishes a right of some sort, the law ought to provide a way to remedy the harm that infringement on that right might cause. When the legal profession itself infringes on the rights of lawyers to live free from trauma or feelings of segregation, or prevents lawyers from worshipping as they please, how do we remedy this? I have a few ideas, but the law society and the province of Alberta do not sound ready to hear them.
Heidi J. T. Exner is a Certified Fraud Examiner (CFE) and a J.D. and MBA candidate at the University of Calgary. She is also currently preparing for the CFA exams. She is a published academic, journalist, the Canada bureau chief at JURIST Legal News and Commentary, editor-in-chief of the Moot Times, and the executive director of a non-profit that addresses white-collar crime in Canada. Heidi can be reached on LinkedIn, or follow her on Twitter: @theheidikins.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
