CLF files intervention factum with the Alberta Court of Appeal, proposing ways to clarify Canada’s legal test for religious freedom claims and ensure its proper application.
Christian Legal Fellowship (CLF) has filed its intervention factum in the appeal of Wirring v. Law Society of Alberta (oral argument scheduled for October 31, 2024). This case raises an important constitutional question: how should courts “objectively” assess whether a claimant’s conscience has been violated, contrary to the Canadian Charter’s guarantee of freedom of conscience and religion in s. 2(a)?
The appeal arises from a dismissal of a religious freedom claim related to the oath of allegiance required of candidates for admission to the Alberta bar. The claimant, Mr. Wirring, is an otherwise eligible candidate who, as an Amritdhari Sikh, cannot swear an oath of allegiance to a person or entity other than the Creator in the Sikh tradition.
The Chambers Justice ruled that, despite the oath’s literal wording (“I will be faithful and bear true allegiance to His Majesty King Charles the Third, his heirs and successors, according to law”), the ‘correct’ meaning of the oath was a “symbolic commitment” to uphold the rule of law, and not a literal oath of allegiance to a person. As such, the Court concluded that the oath did not “objectively” interfere with Mr. Wirring’s conscientious beliefs, relying on the second branch of the s. 2(a) inquiry.
The proper application of that branch – which “requires an objective analysis of the interference caused by the impugned state action” – is a central issue in the appeal.
canada’s Test for religious freedom Needs Clarification
In its factum, CLF submits that the concerns raised in this case are illustrative of a larger, doctrinal issue in need of clarification: the analytical tension inherent in the section 2(a) test, which requires courts to objectively assess the impact of state action on a claimant’s “profoundly personal” (subjective) religious commitments. This tension leads to potential confusion in distinguishing between what is the proper focus of the objective analysis, and what is a subjective or spiritual question beyond its scope. Courts must avoid this confusion, and the risk of “unjustifiably entangl[ing] the court in the affairs of religion.”
Although this specific tension has not yet been considered by an appellate court, scholars have emphasized that the second branch of the s. 2(a) test demands closer attention and have raised concerns about its “under-theorized understanding.” And at least two courts have observed that there is a lack of specification about how exactly this part of the test is to be applied. This case presents an opportunity for an appellate court to bring much-needed clarity to the proper application of the section 2(a) test.
The second stage of the s. 2(a) test, sometimes referred to as the “objective step”, is ultimately concerned with ensuring that a claim is “more than trivial or insubstantial.” The Supreme Court has explained that a concern of this branch is to avoid “allow[ing] persons to conclude themselves that their rights had been infringed and thus to supplant the courts in this role.” This requirement is an appropriate one, as courts should not automatically accept a bald assertion that an impugned requirement violates a claimant’s religion or conscience. More is clearly needed.
However, there is lack of specification surrounding what exactly is needed in practice. As the B.C. Court of Appeal recently observed, “the jurisprudence does not extensively explore the requirement to show that interference with religious freedom must be more than trivial or insubstantial.” As a result, the nature and scope of the inquiry is not always clear, leading to situations where adjudicators have arguably gone too far, applying the test to effectively make “objective” judgments about the normative meaning of an impugned exercise or requirement. Thus, there exists a risk of the s. 2(a) inquiry sliding from its proper role of assessing whether state action might reasonably implicate a claimant’s beliefs to more problematic inquiries into the reasonableness of a claimant’s understanding of the spiritual significance of state action.
Symbolic and Legal Meanings: What does “objective” require?
The decision under review in this case essentially concluded that the impugned oath has a different symbolic meaning than its plain-language interpretation and therefore did not conflict with the Appellant’s conscience in the way he believed. But the meaning of an oath to the person who swears it is not a purely “objective” question, underscoring the need for clarity on the proper analytical framework. That the law might deem an oath to be a symbolic commitment to uphold a constitutional concept does not necessarily mean that an affiant’s conscience will – or can – be bound to the same understanding.
Of course, there is nothing improper with a court interpreting the legal meaning of a statutory requirement, and determining that, for the purposes of its application in law, it may mean something different than its literal connotation. Such a legal interpretation is precisely what courts are regularly called upon to do, and the Chambers Justice’s inclination to do so in this case was understandable. However, that type of legal analysis is not the proper focus of this stage of the s. 2(a) inquiry, which asks not how the law conceives of an obligation for legal purposes, but whether the obligation interferes with the sincerely held beliefs of a claimant, who may have reason to understand that obligation differently (i.e. literally) for spiritual purposes (e.g. consequences for his soul).
There are indeed many examples where something has a different legal meaning than its literal meaning (such as the legal fiction of corporate “personhood”, or the legal construct of “imputed knowledge” versus “actual knowledge”). Similarly, things can have different meanings for legal rather than spiritual purposes. For example, a kirpan, or the emblems of the Eucharist, or the building materials of a succah, may all be technically viewed in law as chattels, but have great spiritual significance to the claimant. To insist that a (secular) legal meaning is the only one relevant to the constitutional analysis, or to superimpose that meaning on the claimant’s understandings, could overlook what is truly at stake for the claimant, and deprive the s. 2(a) framework of the considerations that might matter most to the inquiry.
All of this underscores that the “more than trivial or insubstantial” analysis must focus on asking, in the words of the Supreme Court, whether there is an objective basis to conclude that the Appellant’s “religious beliefs or conduct might reasonably or actually be threatened” by an impugned requirement (R v Edwards Books and Art Ltd, at para 97).
Summary of CLF’s submissions
CLF has included the above analysis in its written submissions to the Court of Appeal. CLF has also argued that, while certain challenges in applying this analysis may be unavoidable, they can be mitigated through the following principles, discussed in detail in our factum:
The “more than trivial” inquiry must be consistent with an overarching principle in the s. 2(a) analysis: judicial non-entanglement in religious and spiritual questions.
The “objective” analysis, then, should be limited to verifying what the state practically requires and whether that could reasonably burden a person with the claimant’s beliefs; it is not for the court to question the claimant’s understanding of the requirement’s spiritual significance nor its implications for his conscience.
Rules of statutory interpretation, therefore, are ill-suited for determining the ‘correct’ or ‘objective’ meaning of state-mandated action alleged to implicate a claimant’s spiritual or religious beliefs because the legal meaning ascribed to an impugned requirement is not determinative at this stage of the inquiry.
Because an oath binds the conscience of the person swearing it and its meaning to him or her is inherently subjective, the conscientious obligations it imposes should be ascertained from the affiant’s perspective for s. 2(a) purposes.
While members of CLF’s community may not hold the same religious or conscientious position as the appellant, we share a core commitment to practicing law as integrated religious professionals in fidelity to our core beliefs. This appeal engages those commitments as it may determine the extent to which a lawyer’s religious beliefs are to be accommodated by a state regulator.
CLF is uniquely poised to speak to these questions as a community at the intersection of the legal profession and religious sphere. Through its extensive work in this space, CLF possesses a distinct understanding of the relationship between law and religion, and the dynamics involved in the expression of one’s religious identity within a regulated profession. CLF hopes our arguments assist the court and are a thoughtful contribution to how the section 2(a) test can be developed and applied in cases such as this one.
CLF’s factum also notes that nothing in our submissions necessarily require that an oath – or any other act, rule, or activity – be constitutionally invalidated. The government must still have the opportunity to demonstrate whether such requirements are justifiable under s. 1 of the Charter. CLF’s position is simply that, where a claimant advances a reasonable explanation as to how state action seriously interferes with their religion or conscience, the government should be required to establish why such interference is demonstrably justified and cannot be accommodated. CLF’s factum acknowledges that there may very well be constitutionally-sound justifications for a mandatory oath. However, an interpretation which essentially asserts to a conscientious objector that “the words you must personally swear as truthful don’t mean what they literally appear to mean, nor what you think they mean” is surely not one of them.
Read more:
Read the Alberta Court of Appeal’s decision granting leave to CLF to intervene in Wirring v Law Society of Alberta.
Read CLF’s Factum, filed with the Alberta Court of Appeal on June 28, 2024.