Yan Campagnolo, L’Université d’Ottawa/University of Ottawa
October 19, 2022
The leader of Québec’s Parti Québécois, Paul St-Pierre Plamondon, sparked controversy by stating that he and the two other elected members of his party will not swear an oath of allegiance to King Charles III, as required by the Constitution Act, 1867, before taking their seats in the Québec National Assembly.
Québec Solidaire followed, with the 11 elected members of their party also refusing to swear an oath to the King.
In the wake of these statements, a number of constitutional experts made comments suggesting that it was possible to refuse taking the oath. They proposed various interpretations and solutions that would, in their view, enable the PQ leader to sit as a Member of the National Assembly (MNA) without swearing allegiance to the King. As a constitutional scholar, I do not share this view.
An interpretation based on 155 years of practice
The wording of section 128 of the Constitution Act, 1867, is clear:
Every Member of a … Legislative Assembly of any Province shall before taking his Seat therein take and subscribe before the Lieutenant Governor of the Province … the Oath of Allegiance contained in the Fifth Schedule to this Act (“I (Member’s name) do swear, That I will be faithful and bear true Allegiance to (His) Majesty (King Charles III)”).
As the Court of Appeal for Ontario recognized in 2014 in McAteer v. Canada (AG), the oath of allegiance is “clearly constitutional.”
In this context, the verb “shall” imposes an obligation; it indicates that an action “must” be taken. In other words, a person cannot sit as a member of a legislature without first swearing the oath. This is a condition for assuming the position. This interpretation is based on 155 years of practice and precedents across the country.
The authorities on parliamentary law are clear: since 1867, all members of legislative assemblies, regardless of their political loyalties, have at one point or another sworn the oath of allegiance. A member who refuses to do so cannot sit in the legislature or vote. That is the consequence of refusing to swear the oath.
Could the National Assembly ignore section 128?
Some experts remarked that St-Pierre Plamondon was duly elected by the voters of the riding of Camille-Laurin and that, in keeping with the principle of democracy, the National Assembly should let him sit without having to take the oath of allegiance.
Moreover, they said that such a decision by a legislative body regarding its internal affairs could not be challenged before the courts owing to the doctrine of parliamentary privilege.
Yet, for a legislative assembly to ignore the clear wording of section 128 would be contrary to two other fundamental principles: constitutionalism and the rule of law. These principles require state officials to follow the Constitution and the law. If the National Assembly had decided to ignore section 128, which in the end it did not, it would have acted unconstitutionally, although this decision could potentially have been sheltered from judicial review.
The principle of democracy does not override the written Constitution
In 1998, in the Reference re Secession of Québec, the Supreme Court of Canada pointed out that the principle of democracy must be reconciled with these two other principles. As a result, it concluded that Québec cannot unilaterally declare independence, even if a clear majority of Quebeckers, in response to a clear referendum question, voted to secede unilaterally.
Since the secession of a province would involve a major change to Canada’s Constitution, it could not occur without good-faith negotiations with the other members of the federation, consistent with the constitutional amendment process set out in Part V of the Constitution Act, 1982.
This advisory opinion from the highest court therefore shows that the principle of democracy, as important as it is, does not give permission to disregard the written provisions of the Constitution.
Could Québec amend section 128 unilaterally?
Other experts implied that the National Assembly could pass a law to amend section 128 or Schedule V of the Constitution Act, 1867, to abolish the oath of allegiance or change its wording to make it more acceptable to those who, like the PQ leader, do not wish to pledge allegiance to the King.
A duly adopted amendment to section 128 or Schedule V would be consistent with the principles of constitutionalism and the rule of law. Québec may be able to make such an amendment unilaterally under section 45 of the Constitution Act, 1982, as it would apply only in a prospective manner to its own MNAs.
However, such an amendment could potentially still be subject to the stringent procedure provided by section 41(a) of the Constitution Act, 1982. Under this provision, any change to “the office of the (King), the Governor General and the Lieutenant Governor of a province” requires the consent of the Senate, the House of Commons and the legislative assemblies of all the provinces. Since it is the duty of the Lieutenant Governor (or their designee) to administer the oath of allegiance to members of the legislature, abolishing the oath could affect their “office.” This action would also likely undermine the symbol the King represents in the Canadian constitutional order.
In any case, contrary to the PQ leader’s suggestion, the National Assembly could not simply adopt a motion exempting its members from the obligation to swear an oath to the King in order to escape the requirements of the Constitution Act, 1867.
An oath to the King is an oath to our system of government
It is important to remember that King Charles III, in his role as King of Canada — a different role from that of King of the United Kingdom — personifies the Canadian state. Furthermore, because the Canadian Crown is divisible, the monarch also personifies the Québec state.
An oath to the King is not an oath to the person who wears the crown at a given time; rather, it is an oath to an institution that symbolizes our system of government, a democratic constitutional monarchy. An oath to the King is therefore an oath to our system of government and homeland, not an oath to a foreign monarch.
In the same vein, the Court of Appeal for Ontario ruled in McAteer that an individual cannot, for reasons of conscience and personal belief, refuse to swear the oath of allegiance required by section 24 of the Citizenship Act to become a Canadian citizen. It would make little sense that an elected official seeking to become part of the state could be exempted from this requirement, especially since it is imposed by the Constitution, the king of all legal rules and norms.
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Of course, some individuals, such as St-Pierre Plamondon, oppose the monarchical aspect of our country, which many feel is anachronistic. Canada may one day renounce the monarchy and become a republic, as several other Western democracies have done. However, until then, the principles of constitutionalism and the rule of law require elected officials to uphold the Constitution — Canada’s supreme law — and the system of democratic constitutional monarchy it establishes.
Yan Campagnolo, Professor of Constitutional Law, L’Université d’Ottawa/University of Ottawa
This article is republished from The Conversation under a Creative Commons license. Read the original article.
