The point of constitutional contention starts with this:

“I swear (or affirm)
That I will be faithful
And bear true allegiance
To His Majesty
King Charles the Third
King of Canada
His Heirs and Successors
And that I will faithfully observe
The laws of Canada
Including the Constitution
Which recognizes and affirms
The Aboriginal and treaty rights of
First Nations, Inuit and Métis peoples
And fulfil my duties as a Canadian citizen.”

This is the Citizenship Oath for new Canadians.  An oath of allegiance to the King is also required for admission to the bar in certain provincial jurisdictions.

The Supreme Court of Canada has agreed to hear a challenge to the requirement that lawyers swear an oath of allegiance to the Monarch.  The challenge is based on the premise – which I hope I am stating fairly – that an individual’s religious beliefs provide that their loyalty to a divine being requires not swearing allegiance to any earthly being, such as the King of Canada.

The few brave readers of this blog, will remember that I am no fan of a foreign head of state (remember: NO to KFC – davidbeattie.ca).  But this screed is not about who should be Head of State for Canada. 

There will be many permutations in the legal arguments, but I would like to consider just one aspect: whether a religious belief should override a lawful constitutional requirement.

Religious freedom is guaranteed in Section 2 of the Canadian Charter of Rights and Freedoms: “2 Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; …”.  If the religion precludes swearing an oath to an earthly individual, it can be argued that religious freedom overrides the requirement for an oath.

I take issue with that view.  My position is that the existence of the State, or of a system of governance, is a necessary condition for the existence of religious rights, indeed any human rights.  Therefore, you cannot claim a religious right unless you first recognize the supremacy of the State.

Let me build the case.  Let’s start with the position that there are no absolutes in the material world.  Thanks to quantum physics, not even the classical laws of thought are absolutes.  Human rights are thought creations of human beings: they are abstractions, ideas, not testamentary tablets.

Human rights cannot exist as moral, political, juridical or constitutional rights without the existence of some order of governance to ensure that such rights exist.  In the state of nature, life is “poor, nasty, brutish and short” (Hobbes).  Governance brings laws, rules and rights.

This applies equally to indigenous rights, which exist (or were violated) within the context of governance within indigenous nations.  Similarly, the precepts of common law – even prior to “habeas corpus” – depended on some system of governance, however cruel and demanding.  The Charter of Rights and Freedoms itself limits the applicability of the rights it grants, “subject to such reasonable limits prescribed by law …”.

Consider the possible consequences of asserting the primacy of religious rights.  Who is to judge the legitimacy of a religious claim?  In such a world, anyone could claim rights as a ‘sovereign citizen’.

You have no sovereign right to reject the Constitution of Canada, however imperfect.  What the law is, is one thing; its goodness or badness, another thing.  All Constitutions are choices, as they must be.  Democratic Government requires that there must first be Government; it is authorized and controlled by a Constitution.  A Constitution may grant human rights.  But the human rights granted are pursuant to a government extant, to which one may reasonably be required to swear an oath of fealty, consistent with the terms of the Constitution.

So there.