The debate on the oath of deputies to the king is important. Although symbolic, this oath reveals the deep nature of our institutions as well as the ambiguity they cultivate between the democratic sovereignty of the people, then the institutional and historical sovereignty of the Crown. However, this debate deserves better than a partisan standoff organized in the haste of the circumstances, even in improvisation. In this regard, the leader of Québec solidaire, Gabriel Nadeau-Dubois, and that of the Parti québécois, Paul St-Pierre Plamondon, are right to call for discussion with the other parties.
Do we need a motion, a law, a regulation, a decision of the presidency? The procedural solutions are numerous insofar as the virtues and limits of each are circumscribed. One thing is certain, the obligation to take an oath exists. Even if Quebec does not reproduce the oath in its laws or in the Standing Orders of the National Assembly, this obligation is provided for in section 128 of the Constitution Act, 1867.
Given the determination of many MPs not to submit to this exercise, short-term solutions must be distinguished from long-term ones. In the long term, a lasting response requires an amendment to section 128 of LC1867. There are several ways to proceed — some have more chances of success than others — but, in the meantime, it will still be necessary to decide on the fate of recalcitrant deputies.
Short-term solutions
Since the penalty for non-compliance with the obligation is not explicitly provided for in the texts, it is up to the National Assembly, in accordance with its institutional autonomy as well as its parliamentary privileges and immunities, to establish the consequences associated with the choice not to not take an oath.
One can imagine a whole gradation of consequences. At first glance, the most obvious sanction, even if it breaks with our democratic values, would be the impossibility of sitting, while retaining the other advantages of the office of deputy. However, this solution is not unique. A tough — and unprecedented — line would be to deprive MPs of their access to the Parliament Building, their benefits and allowances, including budgets associated with the organization of their constituency office. Manifestly disproportionate, this sanction nevertheless remains conceptually possible.
Conversely, several responses appear to be much more weighted. For example, until a long-term solution is adopted, the deputies concerned could retain their access to the Assembly, their right to speak, but without having their votes counted. In short, it will be up to the Assembly to decide.
However, if they are excluded from the debates in the chamber, the deputies will quickly come up against the following problem of procedural fairness: they will have no representative within the Assembly to “pleading” their case. Without a motion, without a call to order, without a ruling from the Chair, the excluded Members will not be able to make the necessary formal representations on the consequences associated with their refusal to take the oath. If the other political parties shun the question (as they have long shunned the file of Yves Michaud), those who will be stuck outside risk staying there for a long time.
To avoid this situation, two ways of passage seem possible. They obviously require the collaboration of the National Assembly. However, such collaboration would be easier to obtain if the leaders of the political parties took the time together to take stock of the issue.
Before taking the oath, the Assembly could consider itself satisfied with the use of synonyms. As Serge Joyal explained recently in these pages, Canadian jurisprudence has completely reversed the historical meaning of the oath. It has removed the dimension of personal loyalty to the king and replaced it with an institutional meaning. This case law certainly does not stand up to historical analysis; it nevertheless corresponds, today, to the state of contemporary law in Canada. This equivalence between the monarchy, the State, its institutions and its laws offers the National Assembly a margin of interpretation which it would do well to exploit.
The other solution, downstream of the swearing-in ceremonies, would consist in minimizing the legal consequences associated with the refusal of several deputies to lend themselves to such an exercise. In this respect, the deprivation of MPs’ right to vote as well as the maintenance of their right to speak could be a proportionate sanction. To date, the fact that the Assembly is prepared to organize ceremonies devoted solely to the oath to the people is already the sign of a reasonable and conciliatory attitude.
Long term solutions
To abolish the obligation to take the oath to Charles III, a legal act which modifies the state of the law will, sooner or later, be necessary. Unless the Assembly considers itself satisfied with the use of synonyms to the Crown, which are already recognized by Canadian case law applicable to the oath of citizenship, Quebec will have to exercise its constitutional autonomy, the part of the constituent power that has reaffirmed by section 45 of the Constitution Act 1982.
To do this, Quebec can act indirectly, by adopting a bill or an amendment to the Standing Orders of the National Assembly which would set out a more recent standard than that provided for by the 1867 text. This is how Quebec proceeded. in 1968, when it abolished its Legislative Council and, at the same time, restricted the prerogatives of the king or the lieutenant-governor to appoint its members.
That said, Quebec would do well to do things more clearly by explicitly modifying the 1867 text. Like the adoption of sections 90.Q1 and 90.Q2 of 1867 in Bill 96, it could pose a unequivocal gesture of affirmation, in full view of the entire federation.
Whether the modification of the 1867 text is direct or indirect, voices will undoubtedly be raised to cast doubt on this way of doing things and to advocate the requirement of unanimous consent from the federal government and the provinces. Serge Joyal’s letter published in these pages as well as the Liberal Party’s opposition to the adoption of Sol Zanetti’s bill testify to this. However, this controversy has had its day.
In truth, Quebec has the capacity to reform its institutions as long as it does not modify the essential and fundamental characteristics of the monarchy. Obviously, the explicit mention of King Charles III is not an essential characteristic or a fundamental historical compromise of the federation. An oath to the people of Quebec, combined with a commitment to our laws and our institutions (which obviously include the monarchy), would be an amendment perfectly consistent with the share of constituent power that Quebec has unilaterally.