ALBERTA

First Nations lawyers, law student fight against swearing allegiance to oppressors

Next spring when Anita Cardinal takes her oath to practise law in Alberta, she’s confident it won’t include swearing allegiance to the king or his heirs and successors.

Cardinal is one of three Indigenous women engaged in legal action against the province and the Law Society of Alberta, the self-governing body that sets standards for Alberta lawyers, to ensure that doesn’t happen.

“That oath in itself is disregarding the full meaning of the treaties and how that was between two sovereign nations. As Indigenous people, we cannot swear (allegiance) because that would be admitting the Crown is our sovereign and the Crown is not. We are our own sovereign people,” said Cardinal, a member of the Woodland Cree First Nation. “No allegiance to each other is necessary to practice law.”

Beyond that, she says, the Crown symbolizes the genocide of Indigenous people in Canada.

“You’re asking people who are victims of genocide…(You’re) asking us to swear allegiance and subjugate ourselves to an institution that has been…a tool of that oppression,” said Cardinal, who is presently articling with the Edmonton-area firm Cooper Regel LLP.

There are Indigenous lawyers in the province, and Cardinal is quick to say, “They’ve done what they’ve had no choice to do so they can go and practise law, because without swearing that you cannot practise law…in Alberta.”

Cardinal is joined in her legal action by Janice Makokis of Saddle Lake Cree Nation and Rachel Snow of the Wesley First Nation.

According to the statement of claim filed Sept. 7, neither Snow nor Makokis, both having graduated with law degrees from different universities outside of the province, have been called to the bar in Alberta. Snow says she will not swear an oath “to the system that has caused generational and ongoing harms to her people,” while Makokis says such an oath is “an affront to her beliefs, laws and conscience.”

Both women want to practise their profession in Alberta.

“The oath requirement,” reads the statement of claim, “breaches their Treaty rights and/or their rights to religious freedom and equality as protected by the Charter of Rights and Freedoms.”

Further, says the statement of claim, the women either seek an exemption from the existing oath or “seek to provide an oath that does not infringe their inherent and Treaty rights, their beliefs or otherwise perpetuate the discrimination against them as Indigenous people…”

A week after filing their statement of claim, the women filed for intervenor status in a similar case already before the Alberta Court of King’s Bench.

In that case, introduced in July, articling student Prabjot Singh Wirring challenged the oath of allegiance as incompatible with his religious beliefs as an Amritdhari Sikh.

However, intervenor status was not granted to the women as the Wirring action was viewed as supporting the Cardinal et al case instead of providing a unique take on the proceedings.

“It was disappointing. Obviously, we were very invested in the outcome because it could affect us for sure. Being able to help in anyway to change that, to be allies in that sense, to support one another in that sense, is going to be helpful to one another for both of our claims,” said Cardinal.

She adds that if Wirring wins, “it will help set a precedent for sure.”

Wirring was scheduled to be heard on Sept. 29 but has been adjourned until Nov. 24 and Nov. 25.

Wirring’s action was supported by law professors from the universities of Alberta and Calgary in an open letter to Justice Minister Tyler Shandro. In that letter, the professors suggested an amendment of the Legal Profession Act to make the oath of allegiance optional. They called it an “uncontroversial step that the Government of Alberta can take to promote diversity, equality and inclusion in the legal profession and across the communities where lawyers serve.”

Hadley Friedland, academic director of Wahkohtowin Law and Governance Lodge at the University of Alberta, was one of the signatories of that letter.

“The importance of the oath is to say you’re going to uphold the law and you’re going to be a good and ethical lawyer. So having to swear you’re going to uphold the queen, and now the king, is not necessarily necessary. I think with the history and ongoing harms of colonialism, asking Indigenous peoples to have to swear allegiance and uphold the sovereign does create a crisis of conscience for many,” she said.

Friedland points to other provinces, such as Ontario and British Columbia, which have either changed their oaths or made them optional.

“I feel it’s a very simple fix, to be honest, and it hasn’t had any negative effects in the provinces that removed that part of the oath. So I feel as if Alberta doesn’t respond to that, it’s likely more political than principled,” she said.

In an email response to Windspeaker.com, Justice spokesperson Katherine Thompson said Shandro acknowledged the concerns raised in the letter by the law professors, but “since the matter is the subject of active litigation involving the province of Alberta, it would be inappropriate to comment on the substance of those concerns.”

Earlier this month, Shandro changed the name of Alberta’s provincial court to the Alberta Court of Justice through an order-in-council. However, Thompson said an oath change isn’t as easy. A Cabinet decision to change the name of the court is set out in the Provincial Court Act, but the same process is not available to change an oath in either the Legal Profession Act or the Oaths of Office Act.

“They can’t unilaterally change it,” said Orlagh O’Kelly, legal counsel for the three Indigenous women. “The oath is legislated…so either it’s amended by (Premier) Danielle Smith and crew or the court strikes it down.”

Cardinal says an optional oath would be determined by working with Elders and could be personalized depending on the nation and the treaty area.

“It certainly is a very exciting thing to think about and that is something we would definitely take our time with and something that would be so meaningful to us,” she said.

Cardinal says there is support for the change even if the province isn’t ready to get on board yet.

“I only think it’s a matter of time and I understand it’s going to be a fight. We’ve been fighting for a very long time and, no matter how long it takes, we’re not going to give up…Us as Indigenous people, we’ll persevere,” said Cardinal.

If the requirement doesn’t change by the time she is called to the bar, Cardinal said, “I’m going to stand there and say everything but the oath.”

Whether that means she won’t be able to practise in Alberta, she said, “Who knows? It all depends because…there have been other students who haven’t said it and they’ve gone through. It all depends.”

The Law Society of Alberta (LSA) could not confirm for Windspeaker.com if that has been the case.

“We do not oversee administration of the oath and have no authority to grant exemptions,” said LSA spokesperson Avery Stodalka in an email.

In an updated statement issued Sept. 28, the LSA said, “While it is not within the power of the Law Society to amend legislation, we support an amendment to the Oaths of Office Act that would create flexibility for articling students by making the oath of allegiance to the King optional.”

Such a change, says LSA, “would remove inequitable barriers to the practice of law in our province.”

No date has been set yet as to when the Cardinal, Snow and Makokis action will be heard.

Windspeaker.com

By Shari Narine, Local Journalism Initiative Reporter, Windspeaker.com, Windspeaker.com

BIEN VUE

Second Quebec opposition party refuses constitutionally required loyalty oath to King

QUEBEC — Members of a second Quebec opposition party have refused to swear allegiance to King Charles III, as required by the Canadian Constitution, putting their ability to sit in the legislature into question.


Second Quebec opposition party refuses constitutionally required loyalty oath to King

© Provided by The Canadian Press

The three Parti Québécois members elected to the province's legislature Oct. 3 took an oath of loyalty to the people of Quebec, but not to the monarch, as they were sworn in Friday morning.

Leader Paul St-Pierre Plamondon said he believes the oath of office should be meaningful and sincere — which he says isn't the case with an oath to a monarchy that Quebecers never consented to.

The oath is a "straitjacket that condemns each elected representative of the people of Quebec to hypocrisy," St-Pierre Plamondon said in a speech. "A straitjacket that forces democrats of all parties to take an oath they do not believe in and therefore to perjure themselves, to sully the value of their word and to do that in the first act they are called on to take as representatives of citizens."

Members of all provincial legislatures and the federal Parliament are required to swear an oath to the Crown before taking office, while the second oath to the people of Quebec is required under provincial law.

Earlier this week, the 11 members of Québec solidaire — which like the PQ supports Quebec sovereignty — also refused to swear allegiance to the King.

Spokesman Gabriel Nadeau-Dubois said at the time that he'd been told members of the party would not be allowed to sit in the legislature, participate in debates or vote, but would have access to their legislative offices and budgets.

Related video: PQ leader wants oath to Canada’s monarch to be optional

Speaking to reporters after the swearing-in, St-Pierre Plamondon said he now wants to meet with the leaders of the other parties to find a way for his members to sit in the legislature without having to take the oath.

He said he believes a simple motion in the province's national assembly could allow the members to sit.

He cited an Ontario Court of Appeal ruling that found the oath to the queen sworn by a new Canadian citizen was not to the queen herself, but to the institutions and the government. "So based on that judgment of 2014, once we've taken an oath towards the people of Quebec and the constitution of Quebec, we have fulfilled that standard," he said.

On Tuesday, Justice Minister Simon Jolin-Barrette said it will take more than a motion to allow the members to sit — but he believes the oath could be eliminated if the assembly passes a bill.

Asked if he would swear the oath if negotiations do not advance, or if the PQ members would attempt to sit without making the pledge, St-Pierre Plamondon said he wasn't ruling anything out.

Constitutional scholars differ on whether the Quebec legislature has the power to allow members to participate in legislative debates and votes without taking the oath.

Benoît Pelletier, a constitutional law professor at the University of Ottawa, said he believes the legislature could allow the dissident members to sit by passing a motion. Pelletier said he believes Quebec could change the oath through the power provinces possess to change their own constitutions, but other experts believe it would require the consent of all provinces and the two houses of Parliament.

This report by The Canadian Press was first published Oct. 21, 2022.

— By Jacob Serebrin in Montreal.

The Canadian Press