The debate persists. Why are Canadians, citizens of a democracy, required to swear oaths of allegiance to a monarch? The answer of course is that a monarch, i.e. King Charles III, is our head of state. So, quoting from the House of Commons website, “When a Member swears or solemnly affirms allegiance to the … Sovereign of Canada, he or she is also swearing or solemnly affirming allegiance to the institutions the [Sovereign] represents, including the concept of democracy.”

Swear allegiance to the monarch, swear allegiance to the country. Not a very convincing proposition. King Charles isn’t the country, he isn’t even a Canadian. He’s a foreigner. And, as for representing the institution of democracy, he became head of state by birthright, not by election, not even by merit. Indeed, monarchy is in itself a fundamentally undemocratic institution.

Consequently, many Canadians, and I count myself among them, take umbrage at swearing fealty to Charles Philip Arthur George Windsor, even if he is a very nice bloke.

Indeed, many Canadians find that having a foreign, unelected head of state is in itself inappropriate for a mature democracy. According to an Angus Reid survey, almost half of us do not want Canada to continue indefinitely as a constitutional monarchy and think the royals represent outdated values. About two-thirds oppose swearing an oath to the King.

We might consider abandoning monarchy for something more appropriate for a democracy; unfortunately there’s that constitution thing. The Constitution Act, 1867, declares “The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen/King.” And changing the Constitution is simply too exhausting an enterprise to seriously consider.

But does changing the oaths require constitutional change? A couple of cases currently before the courts are debating just that.

In 2022, Quebec abolished the mandatory Oath of Allegiance to the King for members of the province’s National Assembly. Now a constitutional lawyer is seeking to strike down the Quebec law, arguing that the provincial government overstepped its constitutional powers.

Lawrence David, a University of Ottawa law professor, has filed a case in Quebec Superior Court on behalf of the Public Interest Litigation Institute, naming the Attorney General of Quebec as the respondent and the Attorney General of Canada as an interested party.

The lawsuit argues that abolishing the oath required a change to the constitution which Quebec had no right to do. Furthermore, because politicians who do not take the oath are not qualified to serve as MNAs, the law also violates the Canadian Charter of Rights and Freedoms, which guarantees the right to effective representation.

As it happens, the Supreme Court of Canada is just about to hear a similar case. The hearing comes after Alberta’s Court of Appeal decided that a provincial law requiring prospective lawyers to swear an oath of allegiance to the Crown violated the Constitution and infringes on religious freedom.

The Court of Appeal ruled that the oath forced Prabjot Wirring to choose between practising law in Alberta and his faith as an Amritdhari Sikh. Wirring had challenged the oath, arguing that he swore an allegiance to Akal Purakh, the Creator in the Sikh faith, and couldn’t swear allegiance to any other entity.

In the Quebec case, regarding legislators, the odds would seem to be in David’s favour. The Constitution does in fact require all members of the House of Commons, Senate and provincial legislatures to swear an oath to the Crown before taking their seats (Section 128). It will prove interesting if David wins and members of the Quebec National Assembly are once again required to swear allegiance to an English chap.

Wirring could also win, because the Constitution says nothing about lawyers. Since Alberta’s oath was struck down by the Court of Appeal, no province imposes a mandatory oath of allegiance to the monarch for prospective lawyers. In other provinces, the oath is either optional or has simply been eliminated.

Wirring has said he has no issue with the two other oaths required during the swearing-in of lawyers in the province—the Law Society oath and the public interest oath. And surely that’s enough. As long as a lawyer commits to the rule of law and upholding the laws of Canada, we need ask for nothing more.

As for demanding an oath to the Crown from our legislators that, too, should be replaced. They should take an oath to serving us, not a British king. So if we ever get around to amending the Constitution …