On October 3, 2022, the province of Quebec held a general election.
To take a seat in the Quebec National Assembly (a component part of the Quebec Legislature) it is necessary that newly elected members take two oaths. The Act respecting the National Assembly, requires members to declare “I, (name of the Member), declare under oath that I will be loyal to the people of Québec and that I will perform the duties of Member honestly and justly in conformity with the constitution of Québec.” In addition to this oath the Constitution Act, 1867 section 128 requires that
Every Member of the Senate or House of Commons of Canada… and every Member of a Legislative Council or Legislative Assembly of any Province shall before taking his Seat therein take and subscribe before the Lieutenant Governor of the Province or some Person authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act
That oath now provides “I A.B. do swear, That I will be faithful and bear true Allegiance to His Majesty King Charles the Third.”
While all newly elected MNAs were prepared to swear the oath required by the Act respecting the National Assembly some nationalist members refused to take the Oath of Allegiance to the King. As a result, the Speaker of the Assembly refused to allow the members to take their seats. In order to resolve the impasse, Bill 190 was introduced that would amend the Act Respecting the National Assembly to only require the oath under that Act, but not the Oath of Allegiance, to be taken before a member could take their seat. The Bill proposed a seemingly simple one line provision following the requirement to take the oath contained in the Act. The new provision would provide “No other oath may be required of a Member to sit in the Assembly.” On December 9, 2022 a government Bill to the same effect was introduced and passed by the Assembly. Bill 4, as adopted provided:
1. The Constitution Act 1867 is amended by the insertion after section 128 the following:
s.128Q.1 Section 128 does not apply to Quebec. est modifiée par l’insertion, après
There can be no doubt that the amendment to the Act Respecting the National Assembly is, on its face, unconstitutional since it is an attempt to remove the constitutional requirement that all members elected to a provincial legislative assembly take the Oath of Allegiance. Since the Oath of Allegiance requirement is found in the Constitution Act, 1867, the only way the requirement can be overcome would be by way of a consitutional amendment in accordance with Part V of the Constitution Act, 1982.
Part V of the Constitution Act, 1982 sets out three possible relevant formulae for constitutional amendment, depending on how one views the requirement that members of legislative assemblies take the Oath of Allegiance before they can sit in the Assembly. No doubt the Quebec government will argue that the provision of the Act Respecting the National Assembly falls within the ambit of s. 45 of the Constitution Act, 1982. This section provides “Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.” Since the proposed amendment to the Act Respecting the National Assembly only affects the ability of Quebec elected members to sit in the Quebec National Assembly, the “amendment” could be seen by some as amending only the constitution of Quebec.
However, there are indicators in the constitution and in the jurisprudence that would suggest that the issue is one that requires a broader agreement among the provincial legislative assemblies and the House of Commons and Senate. First, the requirement for the Oath of Allegiance is found in the Constitution Act, 1867 which is the constitution of Canada as a whole and which contains, with a few notable exceptions, provisions that apply to all of the constitutional architecture and principles that underpin the national government and all provinces. Among these are the principles of government in the name of the Crown, and the nature of Westminster government that requires legislation to be enacted by the King (or his representative) in Parliament or a Legislature. Equally important is a recognition that the King or his representative participate in the formation of government by appointing the Prime Minister and Premiers, the dismissal of governments if required, and the dissolution and prorogation of Parliament and Legislatures. The King’s representative is also responsible for authorizing all Bills that involve taxation and the spending of public funds. And notably, although exercised rarely, there is a constitutional power in the King’s representatives to withhold Royal Assent to a Bill, and in the case of Lieutenant-Governors reserve the granting of assent, and to refer the Bill to the Governor- General for potential disallowance. These are real aspects of the architecture of constitution of Canada which has the Crown at the centre, playing an integral part in all aspects of governance, including the formation of government, the life of legislative assemblies, the enactment of legislation and the exercise of powers of the executive.
Taking the Oath of Allegiance is an act that ties those who sit in a legislative assembly, along with the Lieutenant-Governor as the Legislature, to the entire system of governance and the various constitutional roles that the Crown plays. The Oath, among other things, recognizes and accepts the authority that the Crown exercises in the business of the Legislature, the government, and the State.
Although the Oath is cast in terms of personal fealty to King Charles the Third, the courts have consistently held that although somewhat anachronistic in its wording, the Oath is now a shorthand for an Oath of Allegiance to the Constitutional norms, principles, and governance upon which the constitution and its system of government rests. As recently as 2014, applicants for citizenship challenged the same oath in the context of its requirement fir becoming a citizen on the basis that they could not take an oath to a monarch of a colonizing British empire. The Ontario Court of Appeal in McAteer v. Canada (Attorney General), 2014 ONCA 578 wrote:
 Applying a purposive and progressive approach to the wording of the oath, with regard to its history in Canada and the evolution of our country, leads to the conclusion that the oath is a symbolic commitment to be governed as a democratic constitutional monarchy unless and until democratically changed. Inasmuch as the oath to the Queen is a requirement in the Constitution for members of Parliament and is seen as an oath to our form of government, the harmonization principle supports the conclusion that the oath to the Queen in the Citizenship Act be given a consistent interpretation. This interpretation of the oath, as a symbolic commitment to our form of government and the unwritten constitutional principle of democracy, is supported by the legal norms of rationality and coherence.
The argument that an amendment to the Act Respecting the National Assembly should be seen as constrained to the particular provincial institution, and therefore amendable using section 45 of the Constitution Act, is not dissimilar to the argument used by the federal government when it attempted Senate reform. The federal government had proposed to both limit the rems of Senators and to allow for consultative elections to determine who the Prime Minister should consider recommending for appointment to the Senate by the Governor General. The federal government argued that they had the authority to legislate these changes unilaterally based on section 44 of the Constitution Act, 1982 that allows Parliament to amend the constitution unilaterally “in relation to the executive government of Canada or the Senate and House of Commons.” In Reference re Senate Reform, 2014 SCC 32 this position was rejected by the Supreme Court of Canada for various reasons, including the fact that the changes would fundamentally change the nature of the Senate, which is a body that has the consitutional function of, among other things, protecting regional and provincial interests. As such the changes would have an effect on, or engage, the interests of the provinces. If so, then the federal government could not act alone in amending the Senate. This last point was specifically considered in light of particular Senate appointment criteria for Quebec which the court found could only be amended with the consent of Quebec. These findings of the court were made by examining not only the provisions in question but by placing the proposed change within its context and in light of its overall affects on the consitutional architecture and the system of government in which the Senate operates.
With these constitutional principles and jurisprudence in mind, it is very difficult, if not impossible to see the changes contemplated by Bill 190 as an amendment restricted to the constitution of Quebec, and not captured in any other amending formula in Part V of the Constitution Act, 1982.
The general amending formula is found in section 38 of the Constitution Act, 1982. This formula requires a resolution of the House of Commons and the Senate and the resolution of the legislative assemblies of seven provinces which have a combined population of more than fifty percent of the population of Canada. This formula is to apply as a default where no other formula is applicable. Most interestingly, listed in section 38 are certain types of amendment that clearly address the internal workings of legislative assemblies. Section 38 (2) states:
An amendment made under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1). [emphasis added]
It can be argued that this particular subsection is designed to address a situation like the one presented by the Quebec legislation. The determination of the ability of a member to sit following an election is one of the historic rights or privileges of a Legislature. The privilege of determining the constitution of an assembly (rules and participation) is one that has been recognized by the courts both prior to and after confederation, and at least two of these cases involved the requirement of Members to take an oath prior to taking their seats. In the leading case of Bradlaugh v Gosset (1884) 12 QBD 271, the English courts determined that they would not interfere in the issue of whether a member could be refused the ability to take an oath because to do so would interfere with the rights and privileges of the House of Commons. A similar case occurred in Northern Ireland when Irish separatists refused to take the oath but wanted certain benefits of being members. The Speaker refused the benefits. Again, the courts refused to become involved since do so would interfere in the privileges of the Assembly. What is clear is that the issue of oaths and taking seats is one that falls within the rights and privileges of legislatures. While these cases have been cited subsequently in order to protect the Legislature from interference in their rights and privileges, they do not protect assemblies from the constitution.
That the s.38 amending formula is the one that might be appropriate in the circumstances is supported by the fact that amendments that are made under s.38(2) relating to the rights and privileges of Legislatures can be opted out of by provinces that do not want the amendment to apply to them using the mechanism under s.38(3). The application of this formula is designeded to allow what Quebec is attempting to do with its legislation. Section 128 of the Constitution Act 1867 would be amended such that Quebec would be able to opt out of its requirements.
There are other amending formulae that could also apply depending on how far one wanted to press for the requirement of unanimity, rather than the percentage formula in s, 38. For example, if one were take the position that the taking of the Oath to the King in the context of the Legislature affected the “office of the King, the Governor General or the Lieutenant Governor of a province” s. 41 requires a resolution of all provincial legislative assemblies, the House of Commons and the Senate.
The formula in section 43 is also an amending formula that could be considered, but would require unanimity. Section 43 provides:
43 An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including (a) any alteration to boundaries between provinces, and (b) any amendment to any provision that relates to the use of the English or the French language within a province, may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies. [qualifying phrase highlighted]
Although the phrase “but not all” is included in the provision, it would seem quite odd, and not constitutionally sound, that the intent of the drafters of the provision would have required consent of an affected province in the case of it being specially identified, but not in a case where its interests are equally affected but as a member of a group of all provinces. In the present case, s. 128 of the Constitution Act, 1867 applies to all members of every provincial legislative assembly, the House of Commons, and the Senate. Giving section 43 the necessary broad and purposive interpretation that the courts give to other constitutional provisions, a serious case could be made that even the general amending formula of s.38(1) and allowing Quebec to use s.38(2) to opt out is not appropriate when all provinces are specifically implicated by a provision of the Constitution.
In light of the above, it is likely that the legislation will be struck down as unconstitutional and the change proposed will require a consitutional amendment with the support of at least seven provinces, the House of Commons and the Senate.
While the constitutionality of the Quebec legislation works itself out, likely through a court challenge, the risk exists that some members of the National Assembly will take their seats without complying with the constitutional precondition to do so. What the consequences of this could be are unknown. There is no precedent that I am aware of. One could argue that permitting such members to openly take their seats would mean that the Assembly is not properly constituted and as a result any legislation adopted is potentially at risk. The other possibility would be that any votes by the members in question would be expunged and the tally of votes of properly seated members would be recalibrated so as to not unnecessarily invalidate otherwise valid legislation. Since these would be a questions of constitutional validity the jurisprudence in Picken v British Railways Board  UKHL 1 and Mikisew Cree v Canada (Attorney General) 2018 SCC 40 that limit the courts from examining parliamentary proceedings would not be applicable since the question would not involve the procedures followed or the content of debate but rather the validity of the proceeding itself; that is, whether the meeting was a constitutionally valid proceeding.
Regardless of the outcome, the perception that the Oath is both personal and written from a British colonial perspective and therefore susceptible to criticism or ridicule has been rekindled. For many, who have come from countries where colonialism was real and oppressive, or from countries without any connection to British history, the royal family is remote, and they cannot see King Charles III as King of Canada as opposed to the King of England. They believe they have come to a country that is a model for liberal democracy not a vassal colonial state, yet they must swear an Oath to a “foreign” King. The abstract notion of an invisible Crown that is historically and continually English but yet uniquely Canadian is unfathomable. Yet it is the constitutional glue that holds everything together. The Oath as interpreted and understood by the courts, the law and the constitution is straightforward and simple. Some, however, only see the words and feel the political and personal confusion.
Although the Quebec legislation seeking to eliminate the Oath of Allegiance to the King may seem a final way to purge the Quebec psyche of English dominance and conquest, and thereby to challenge the underpinnings of a Canadian constitution, it may in fact provide an opportunity for the rest of Canada to come to terms with itself as a modern, liberal and inclusive democracy, albeit with a complex history. The challenge presented by the legislation is not just something to be navigated through the minefield of constitution amending formulae. It is an opportunity to establish an Oath that respects the constitution as it is, a mixture of history, written and unwritten content, and an evolving democratic society based on the rule of law. This can be done without a complete overhaul of the constitution. One need only change the Oath required by section 128 and in all other contexts to one whereby one “swears to abide by and uphold the constitution of Canada and the values and principles that sustain it.” In the meantime, the existing Oath will have to do the heavy lifting required of it, as it has evolved through the maturation of Canada from the unification of four British colonies to the multi-cultural federal, liberal democratic state that it has become.