L’abolition unilatérale du serment au roi par le Québec est-elle constitutionnelle ?

Abstract

Did Quebec have the power to exempt the members of the National Assembly from the obligation to swear an oath to King Charles III, as required under section 128 of the Constitution Act, 1867, by unilaterally amending the text of the Canadian Constitution? This article answers in the negative. Without calling into question the legitimacy of the political choice Quebec made, the article examines the constitutional validity of that choice. It argues that the legislation to abolish the oath to the King is problematic both in form and in substance. With respect to form, Quebec cannot directly amend the text of the Constitution Act, 1867, by inserting a provision—section 128Q.1—whose purpose is to exempt the members of the National Assembly from the obligation to swear an oath to the King. Pursuant to section 45 of the Constitution Act, 1982, Quebec may unilaterally amend only its own provincial constitution. With respect to substance, abolishing the oath to the King requires the consent of all the partners in the federation, by virtue of section 41(a) of the Constitution Act, 1982, and current precedents, since such an amendment concerns the “office of the [King]” insofar as it affects the “status of the Crown,” as that concept has been defined by the courts. In the event of a judicial challenge, the courts could therefore declare the legislation to abolish the oath to the King to be invalid, which would render null the votes of members who did not swear the oath. This consequence may appear minor at a time when only seven sitting members have not sworn the oath. However, the impact could be much greater after the next general election, should a majority of members refuse to take the oath. In such a case, invalidating the legislation to abolish the oath to the King would call into question the validity of all legislation passed by those members.