Beneath the Law
If “No One is Above the Law,” then everyone is beneath it. Beneath the Law is a frank discussion between two lawyers who have lived and breathed the legal system in Canada for over 30 years.
In this podcast hosts Stephen Thiele and Gavin Tighe of Gardiner Roberts, examine the arguments made in some highly contentious, and public cases, with a focus on the intersection between law and politics and where courtrooms become part of the political arena. In each episode Beneath the Law digs into interesting and current legal topics or legal battles and provides insight and commentary on the law and its application in our society.
Law is at its core the expression of the fundamental framework of any organized society – it is the fine print of the social contract. Courts play a fundamental role in any democracy, getting underneath the surface and beneath the law requires an understanding of not only what courts are doing but why.
Beneath the Law
Can Religion Overrule the Rule of Law?
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Can a single oath determine who gets to practise law in Canada?
Gavin Tighe and Stephen Thiele unpack a fascinating Alberta Court of Appeal decision that struck down a mandatory oath of allegiance for lawyers as unconstitutional.
Through the case of Amarjeet Singh Dhariwal, a Canadian born Sikh lawyer who refused to swear allegiance to the Crown on religious grounds, the discussion explores how freedom of religion, the rule of law, and professional licensing collide.
They examine why sincerity of belief mattered, how the Law Society of Alberta failed to justify the oath under the Charter, and what this ruling means for lawyers, regulators, and professional bodies across the country.
Along the way, they raise deeper questions about tradition, citizenship, and whether symbolic rituals still have a place in modern legal practice.
Listen For
:01 Are religious convictions absolutely protected under the Canadian Charter?
2:32 Can a professional oath be unconstitutional?
5:30 Does being born in Canada change the obligation to swear allegiance?
9:43 How do courts assess sincerity of religious belief?
15:07 Why did Alberta lose the Charter challenge?
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Contact Us
Gardiner Roberts website | Gavin email | Stephen email
Gavin Tighe (00:00):
This was a true religious conviction. It is problematic because true religious convictions are absolutely protected by the Charter, and any liberal Western democracy protects the freedom of religion and the freedom to exercise and hold the beliefs that you hold true. There is no doubt that this gentleman did hold them true and did very much believe that he was constrained from giving this oath by his true and deeply held religious beliefs.
Hello and welcome to the next episode of Beneath the Law. Gavin Tighe here with Stephen Thiele. How are you, sir?
I am doing pretty good. How are you doing?
I am okay. I have still got my broken hand here from last time, but it will heal. I am not a southpaw, so it is not that bad. I can survive and thrive. It is just kind of a pain in the neck.
Stephen Thiele (00:51):
Now, is it broken or is it just ligament damage?
Gavin Tighe (00:54):
Ligament damage. Old guy, old guy. I have fallen and I cannot get up. That is the problem.
Stephen Thiele (01:03):
Well, you will need one of those pendants you wear around your neck.
Gavin Tighe (01:08):
Right now I just bleat like a wounded goat.
Stephen Thiele (01:12):
So can I ask you, is that actually worse than a break?
Gavin Tighe (01:16):
No, I do not think so. I do not really want to find out to compare, but if I do, I will let you know the difference. I would not wish it on anyone. It is about a million times better than it was a week ago.
Stephen Thiele (01:38):
Well, I wish you a quick, speedy, and complete recovery very shortly. Please do not fall down and continue to hurt yourself.
Gavin Tighe (01:42):
Most people will be angry that I did not break the ligaments in my tongue, so I never shut up. Unfortunately it was my thumb. My hitchhiking days are numbered, but my talking days are apparently not. At least not until we hit the time limits of the podcast.
Today we are going to talk about a very interesting topic, one that I find almost existentially interesting.
Stephen Thiele (02:14):
It is a fascinating case when you think about it.
Gavin Tighe (02:19):
It really is on so many levels. Stephen, why do you not give the facts so the factual matrix of where this all comes from?
Stephen Thiele (02:32):
This podcast is about an Alberta Court of Appeal decision which declared a provision of the Legal Profession Act in Alberta of no force or effect, in other words unconstitutional under the Charter. The provision required lawyers who wanted to become members of the Law Society of Alberta to take an oath of allegiance.
This case was brought by a lawyer named Amarjeet Singh Dhariwal. He argued that he could not take the oath of allegiance because it was contrary to his religious values and beliefs. Because he could not take that oath, he had to go to another province to become a lawyer. He challenged the oath as unconstitutional because it violated his freedom of religion. The Court of Appeal agreed.
Gavin Tighe (03:52):
The oath of allegiance in question was, “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.”
In the Canadian context, the Crown is the embodiment of the state. When you hear in the United States “State versus so and so,” in Canada it is “Regina versus so and so.” The Queen represents the state.
So when we talk about allegiance to the Queen, we are really talking about allegiance to Canada itself.
Now, Stephen, was this gentleman born in Canada or did he immigrate?
Stephen Thiele (05:30):
He was born in Edmonton.
Gavin Tighe (05:32):
That changes things somewhat. I think there is a distinction between choosing to immigrate to a country and being born here. Citizenship carries both rights and responsibilities.
With officers of the court, licensed to practise law, the question becomes whether refusing to pledge allegiance to the state is problematic. Where does that end? What if your religion permitted conduct that violated the law? Could that be a defence?
Stephen Thiele (07:04):
That is part of what makes this case fascinating. The oath, although phrased as allegiance to the monarch, has been interpreted as allegiance to the rule of law.
And that is exactly what lawyers do every day. The rule of law is supreme under the Canadian Charter.
Gavin Tighe (08:20):
But is that not a distinction without a difference? Practising law is a privilege, not a right. If you do not uphold the law, your licence is revoked. Is the act of becoming a lawyer not already a promise to uphold the rule of law?
Stephen Thiele (09:01):
In Alberta, this oath was one of three. The issue for the Court of Appeal was the language “faithful and bear true allegiance.”
The applicant was a member of the Sikh community, and his religious belief prevented him from making that pledge.
Gavin Tighe (09:43):
No one questioned the sincerity of his beliefs. That is important to say clearly.
Stephen Thiele (10:36):
Correct. And sincerity is part of the test. The second part is whether the state action interferes in a non trivial way with the individual’s ability to practise their religion.
At first instance, the chambers judge misunderstood the evidence and concluded his religion allowed him to take the oath. That was incorrect.
Gavin Tighe (13:03):
What is fascinating is that he became a member of the Saskatchewan Bar and then transferred back to Alberta without taking the oath. That back door is a problem.
Stephen Thiele (13:36):
I agree. It undermines the justification for the requirement.
Gavin Tighe (14:08):
And it raises a broader concern. Do rules apply except where religion says they do not? If the rule of law is supreme, how can it be trumped?
Stephen Thiele (15:07):
Alberta did not lead evidence under section one of the Charter. That was fatal.
Gavin Tighe (20:57):
I think that extra provincial route was the death blow to their defence.
Stephen Thiele (22:49):
Ontario has made the oath optional. Other provinces have eliminated it entirely.
Gavin Tighe (23:02):
Frankly, the act of becoming a lawyer and subjecting yourself to discipline is far more meaningful than reciting words. This individual took it seriously enough to uproot his life rather than pretend.
Stephen Thiele (24:06):
The Court of Appeal also distinguished between the citizenship oath and the professional oath.
Gavin Tighe (24:31):
I think that distinction makes sense. Citizenship by birth is different from citizenship by choice.
Stephen Thiele (25:44):
This decision may cause other professional bodies to review their requirements.
Gavin Tighe (25:51):
Engineers pledge allegiance to the laws of physics. Lawyers to the rule of law.
Stephen Thiele (26:47):
The Alberta Court of Appeal would agree with you.
Gavin Tighe (27:00):
Stephen, always a fascinating discussion. This case raises deep questions about what it means to be Canadian and what it means to be a Canadian lawyer.
I think the rule of law is alive and well in Canada, and sometimes tradition must evolve while still respecting where we came from.
That brings us to the end of another episode of Beneath the Law. Thanks to our listeners and to our producer Doug Downs.
And always remember, if no one is above the law, everyone is beneath it.
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