Glenn Blackett is a Calgary-based civil rights lawyer working with the Justice Centre for Constitutional Freedoms network of lawyers.The rule of law in Canada has taken its most recent gut punch in the Alberta Court of Appeal’s recent decision in Wirring v. Alberta Law Society. Alberta’s highest Court determined that the requirement that Alberta lawyers maintain absolute loyalty to the Constitution and to clients was an unreasonable infringement of Sikh freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms.This is a shocking outcome, without even considering the more shocking contents of the Court’s reasons.Rights, Charter rights included, are nothing but empty words on paper without the rule of law working to ensure those rights are realized. The Charter itself acknowledges this. It starts with the words: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.”.RZEPA: Finding my voice — when my country seems to be losing its own.The rule of law is the breath of life to our Constitution.The rule of law, in turn, does not operate unless its operators (including police, lawyers and judges) are loyal to the law. Loyalty to the law (as well as loyalty to the client) is an essential requirement for lawyers in a free and democratic society.While we should all welcome the Court’s robust vision of religious freedom – one I will welcome when my Christian client’s freedom of religion claim is considered by the Court next year – individual rights are necessarily limited where they undermine freedom and democracy. “Your right to swing your arm stops at the end of my nose,” and all that.Here, the plaintiff’s Charter right of undivided loyalty to Guru and Khalsa either yields to an essential professional credential (loyalty) or the very structure that supports that Charter right (the rule of law) is corrupted; our Charter rights vanish, the plaintiff’s included.The reasons reveal even more cause for concern..Once a plaintiff makes out a Charter infringement, the burden of proof shifts to the government to demonstrate the infringement is reasonable under the Charter’s section 1. In this case, the government could have presented evidence, could have cross examined the plaintiff, and could have made arguments like those above. But the government did none of those things: “it made brief written submissions on s 1, which did not address the infringement actually in play …” In addition to the many obvious arguments the government failed to advance, it could have put in evidence. For example, that tens if not hundreds of thousands of Sikhs have willingly sworn an oath which uses the exact same problem phrase to become citizens of Canada. Having no one in Court to adequately defend the rule of law, the Court was arguably compelled to strike down professional loyalty as unconstitutional. But, then again, Canadian courts are now in the habit of taking “judicial notice” (i.e. a judge accepts a fact as true without proof) of the most extraordinary factual claims. .QUESNEL: The price of ‘mushy nationalism’ — why Canada needs a stronger citizenship standard in the age of diaspora power.For example, the Supreme Court of Canada – in what I think is an abuse of the concept – has ordered lower courts to take judicial notice, “of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.”Surely, then, it was well within the Court’s jurisdiction to take judicial notice of facts within its immediate experience and expertise, especially facts confirmed in caselaw: that a lawyer’s loyalty to the client and the law is essential to the functioning of our legal system. Instead, the Court gave no, “significant weight” to the idea that an oath was important. The Court could have – and I would argue, it was the Court’s constitutional duty to have – determined that a candidate’s firm refusal to take an oath of loyalty to the Constitution definitely demonstrates a fatal shortcoming in that candidate’s qualifications.The last tragedy I will comment on from the reasons, although there are many more, is the way the Court differentiated the oath of loyalty it struck down from other oaths a lawyer must still swear – and about which oaths the plaintiff had no present complaint. .The Court reasoned that those other oaths – including an oath not to “pervert the law” – did not imply “loyalty or devotion”, did not mean being “faithful or steadfast”, could “waver when there are conflicting interests at play”, and could be “compromise[d] … for an adequate reason.”So, it would appear to be the Court’s view that a lawyer still “keeps her oath” even if she perverts the law, as long as it is for an “adequate reason.” Let us apply that vision of “oath” in another context: “I, take you, to be my wife, to have and to hold from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, to love and to cherish, until we are parted by death or until I have an adequate reason not to.”How romantic.As it turns out, the Court shares this kind of atrophied view of commitment with the statutory regulator of Alberta lawyers – the Law Society of Alberta (LSA). According to the LSA’s own “Regulatory Objectives” (currently unavailable on its website), its own commitment to the “rule of law” may yield to other objectives like – you guessed it – diversity, equity and inclusion..CARPAY: Ottawa's assault on our internet freedoms must stop now.Here is where we are headed folks – and with no one even reaching for the brakes: Canadian lawyers will soon work like lawyers in communist China. The LSA’s “key resources” expressly advocate for Chinese communist “perspectives on advocacy” to be incorporated in Canadian legal education. Chinese lawyers also operate under a written constitution which also claims to operate by the rule of law and claims to protect freedom of speech. But, in reality, the law, lawyers, and judges either yield to Chinese ideology (“socialism with Chinese characteristics”) or find themselves in the crosshairs of the Chinese Communist Party.Chinese ideology operates in the interests of the “people” whereas socialism with Canadian characteristics will operate in the “public interest.”The government can still salvage the rule of law in Alberta with immediate, decisive action. The LSA maintains ideological objectives, including ideological definitions of professional competence and ethics. Assuming Bill 13 (Regulated Professions Neutrality Act) bans ideological professional regulation, the Minister of Justice should now demand the LSA’s compliance with that legislation and, failing compliance, should take decisive corrective action.Glenn Blackett is a Calgary-based civil rights lawyer working with the Justice Centre for Constitutional Freedoms network of lawyers.
