The decision taken on 1er December by the new President of the National Assembly, Nathalie Roy, on the royal oath is based on an error of law and distorts the writings of our colleague Henri Brun.
In 2018, the Supreme Court ruled on parliamentary privilege in the Chagnon case, named after a president of the National Assembly. The latter had dismissed security guards without following the procedure prescribed by the Labor Code. Jacques Chagnon had maintained that he was exempt from it by parliamentary privilege. He was represented by Mr.e Siegfried Peters, the current Secretary General of the Assembly.
The Supreme Court reaffirmed the constitutional importance of the privilege, but decided that it did not confer immunity in the non-parliamentary functions of the president. She described the privilege as an exceptional immunity from legal challenge to the decisions of the Assembly in matters of internal management of its members: “The immunity against external review which the privilege provides is an important component of our constitutional structure and the law that governs it. Judicial review of the exercise of parliamentary privilege, even for Charter compliance, could effectively nullify the necessary immunity that this doctrine purports to confer on the legislature. »
Using its parliamentary privilege, the House of Commons has enshrined in its internal regulations that a member who does not pledge allegiance to the King of Canada cannot sit. This provision cannot be reviewed by the courts because the House is sovereign as far as it is concerned in matters of parliamentary law.
This is the case with the National Assembly. It may at its discretion take the opposite position since section 128 of the Constitution Act, 1867, which requires the oath, does not specify the consequences of refusing to take it. These consequences are a matter of parliamentary privilege. The latter has already been used for more than a century to translate the oath into French, which is not provided for by the Constitution of Canada, which is thus adapted.
In The democratic institutions of Quebec and Canada (2013), Professor Henri Brun has written that the internal management of the National Assembly is a matter of parliamentary privilege, an institution enshrined in the Constitution which allows the Assembly not to modify the constitutional law (article 128 for example ), but to specify the internal effects. In the 2014 edition of the fundamental work by Professors Brun, Tremblay and Brouillet, Constitutional rightthe authors make the same point.
These authors were misquoted by the current president of the National Assembly, Nathalie Roy, and her predecessor, François Paradis, in their decisions on the oath to the king. The presidents refuse to make the essential distinction between the modification of article 128 and the delimitation of its effects. Both base their decisions to expel the deputies on a passage from the second of these two works which deals exclusively with the power to repeal or modify article 128 (“to remove the obligation to take the oath”).
They fail to consider the possibility of simply not applying this section to the Members involved, in light of the parliamentary privilege which the book otherwise fully deals with. Such an examination would have prevented them from taking this decision of expulsion, which is in no way based on the passage relied on.
Unlike parliamentary privilege, an oath law is subject to judicial review. The validity of a law on the oath is far from certain, even if it claims to be based on provincial jurisdiction over the internal constitution of Quebec. This precarious thesis finds no support in constitutional jurisprudence. It is amazing to see the government taking the less legally safe route.
Based on the only Canadian precedent of a nineteenth-century Member of Parliament inadvertently failing to take the oath to Queen Victoria, the consequence of declaring an oath law invalid would be no not the invalidity of all the laws on which a Republican congressman would have voted, but rather simply the invalidation of his individual votes. The fact remains that a declaration of invalidity of the law could lead to unsuspected political consequences.
If the oath to the King prescribed by the Constitution Act, 1867 is to be made optional, it is infinitely better to proceed by an internal modification, even tacit, of parliamentary practice than by a legislative modification or, worse, by a formal modification of supreme Canadian law.