On behalf of the government of Quebec, the Minister of Justice, Simon Jolin-Barrette, declared on Tuesday that a motion of the National Assembly would not be enough to allow members who refuse to subscribe and take an oath of allegiance King Charles III to sit in the National Assembly. We believe this position is legally wrong.
The Minister of Justice says a motion cannot change the Constitution of Canada. It is an error of perspective. If the objective, as should be the case, is to allow deputies who will not take an oath of allegiance to King Charles III to occupy their seat in the National Assembly, it is by no means this case to modify article 128 of the Constitution Act of 1867 nor to suspend its application. Rather, it is a question of specifying that failure to take the oath of allegiance provided for in this article does not prevent one from sitting in the National Assembly.
The Constitution Act of 1867 does not specify the consequences of refusing to take the oath. Whatever these consequences, the democratic principle, which is a structural principle of the Constitution according to the Supreme Court of Canada, must clearly prevail.
This is clearly a matter of internal management of the National Assembly and a matter falling under the so-called institution of parliamentary privilege, which recognizes the principle of the full autonomy of a legislative assembly over its internal management, as ruled by the Supreme Court of Canada in 1993 in the case New Brunswick Broadcasting v. New Scotland. The motion that would be adopted would therefore not be subject to constitutional review. Relying on the judgment rendered in 2011 by the Quebec Court of Appeal in the case Quebec (Attorney General) v. Confederation of National Trade Unions (CSN)the National Assembly itself stated in the fourth edition of its work on Parliamentary procedure in Quebec that “[e]Because of the privilege of governing their internal affairs without outside interference, the courts cannot intervene in the deliberations of a legislative assembly, since the latter exercises exclusive control over its internal procedure”.
A law, on the contrary, would be subject to judicial review. The government is in danger of getting bogged down in a fruitless legal debate, in particular on the amendment that we would like to make to section 128 of the Constitution Act, 1867 (or the addition that we would like to insert therein) and the procedure for modification that would apply to it. Needless to say, the debates on the adoption of a law and its legal challenge could last for several years and deprive the deputies whose election has been confirmed from taking their seat in the National Assembly.
The government has also recalled that it has already succeeded in amending the Constitution of Canada unilaterally through Bill 96. Nothing is less certain. This law is currently the subject of numerous challenges in the courts. The Government of Quebec is circulating a version of the Canadian Constitution that is different from that which is current in the rest of Canada. The risk of a new constitutional challenge to another law passed by the National Assembly of Quebec is real.
The Minister of Justice also says that Quebec laws will be at risk if a motion is adopted rather than a law. Exactly the opposite is likely to happen. Passing a law that is probably unconstitutional will solve nothing. A motion will recall that the National Assembly is a political and non-judicial body that is not bound by foreign precedents.
The National Assembly need only take into account the fact that section 128 is undemocratic, obsolete and inapplicable in today’s Quebec. The same would apply to a possible intervention by the Lieutenant-Governor in this matter.
The Government of Quebec must therefore revise its position and consider tabling, when work on the 43e Legislature and from the first period of Routine Proceedings, a motion allowing the Members of the Parti Québécois and Québec solidaire to take their seats in the Assembly.
Acting in this way will give primacy to the democratic principle, and would also be respectful of the will of Quebeckers who, according to a recent survey by the firm Léger, are of the opinion, in a proportion of 65%, that people who refuse to to take the oath of allegiance to the King upon taking office should be allowed to sit.