Several interpretations of the oath of allegiance of the deputies were repeated by the protagonists of the debate to refuse to take it. The majority of these interpretations are wrong or inaccurate in law, because they have already been rejected by the courts in numerous previous judgments.
In four different cases from 1992 to 2015, nine judgments rendered by courts in Ontario (yes, who would have thought?) ruled on each of the objections recently raised to refuse to take the required oath . The state of the law is therefore clear in Canada on this subject.
The argument most often heard is that which reads in the text of this oath an allegiance to the very person of the sovereign, an incongruity today; the nine judgments rendered all rejected this literal interpretation of the text of the oath.
According to the courts, allegiance should no longer be interpreted as being to the very person of the king, but to the symbolic recognition of our form of government and of the democratic principle served by the system of parliamentary constitutional monarchy.
The other oft-repeated argument is that the sovereign is a foreigner, in this case a Briton who is not a Canadian citizen. The courts have also rejected this argument. Since 1953, with the adoption by Canada of a law on royal titles, the sovereign mentioned in the oath has been the monarch of Canada, quite distinct in its legal existence from that of the United Kingdom, even if it it is the same person who wears both Crowns. It is to the Crown that the oath refers and not to the natural person; the nine judgments mentioned have all confirmed this interpretation.
An additional argument is that the oath violates freedom of conscience and religion, and freedom of expression (protected in s. 2 of the Charter). The courts have also rejected this argument. The explanation is simple: by swearing allegiance to the currently prevailing constitutional order, the member recognizes the validity of the protection from which he benefits under the Charter, and, consequently, can freely express republican or secular positions against the order as established.
On the other hand, according to the courts, the fact that the sovereign is, in the United Kingdom, head of the Anglican Church has no effect in Canada, since there is no church established in the country which enjoys recognized constitutional status.
In the text of the oath, the word “King” must be interpreted as equivalent to “State”, and “Crown” in the abstract sense of the term. In other words, it is to the principle of the constitutional order that is parliamentary democracy as constituted in Canada, and to the rights and freedoms which are recognized and protected therein, that the oath aims to bring recognition.
In no way is the political reality relating to the sovereign as it exists in the United Kingdom covered or included in the oath of allegiance provided for in the Constitution Act 1867. As for the argument that the original text is only in English, Quebec refused in 1998 to join a procedure aimed at adopting an official French version of the law of 1867, and of the oath it contains.
Passing a motion to suspend the operation of the law requiring the oath would have no legal effect: the legal way to suspend the operation of a law is to pass another law, unless there is a specific provision allowing it, which is not the case here.
The approach that would seek through provincial legislation to amend section 128 (which provides for the oath) and to change its text is problematic; this is an amendment that engages the overall constitutional order applying to all the provinces and to the federal government and could not be validly adopted in the current state of the law without the unanimity of the governments concerned (art. 41, law of 1982).
If Quebec decides to proceed in this way, it would be wise to send the question to the Court of Appeal beforehand to avoid the subsequent nullity of all the laws which could have been adopted in the meantime. The Forest affair in Manitoba saw all the laws of this province (more than a thousand!) adopted since 1890, annulled in 1979 by the Supreme Court!
Legal chaos is not what one wants under the circumstances. The rule of law that frames political debate remains the guarantee of the exercise of our freedoms.