Constitutional rules, amendment, and the rule of law

A decision by some Quebec politicians to forgo an oath to the King flouts a clear constitutional rule and renders them ineligible to sit in the National Assembly. Section 128 of the Constitution Act, 1867 requires all those who wish to sit in the federal House or Senate and in each of the provincial legislative assemblies to take the prescribed oath in the Fifth Schedule to the Act. (Note: the linked story incorrectly describes this as a rule of the National Assembly. It is in fact a constitutional requirement).

The ensuing controversy raises the question of whether the Assembly will simply allow those individuals to sit as members regardless of the constitutional requirement, or whether the Assembly will assert the authority, via motion or law, to either change the oath or abandon the requirement entirely. This raises an even bigger problem, because no province can unilaterally disregard or change a clear requirement of the Constitution of Canada.

Some have argued that as a matter of parliamentary privilege the Assembly is free to set its own rules on membership. Yet no part of the constitution can overrule another part. And as the Supreme Court recently ruled, unwritten principles of the constitution, like parliamentary privilege, cannot be used independently to invalidate a statute, let alone a clear constitutional provision.

The explicit requirement of section 128, binding on the federal and provincial legislatures alike, can only be amended via one of the procedures in the amending formula. In this instance, as a rule that binds Parliament and all legislatures, that is most likely the general amending procedure, with its 7/50 rule (requiring the approval of the House of Commons, the Senate, and at least seven provinces representing at least 50 percent of the population). You might make the argument it should require unanimous agreement because it is an oath to the monarch, and therefore touches upon the office of the king, but this is probably a stretch. An alternative, for changes affecting only one or some but not all provinces, might be the bilateral amending procedure - but at the very least it is abundantly clear that Quebec cannot effect this change unilaterally.

This opinion apparently puts me offside my friend Phil Lagassé, as well as constitutional scholar Patrick Taillon, who think a change to oath could be effected by section 45 as a simple alteration to the provincial constitution of Quebec. My view is that entrenchment of the explicit requirement, including the wording of the oath, in the national constitutional text means that the requirement and the oath are indeed part of the national constitution and thus not solely part of the provincial one. Indeed, section 128 is housed in the same part of the Constitution Act, 1867 as section 133, which imposes bilingualism on the Quebec National Assembly and which the Supreme Court has ruled is not unilaterally amendable as a feature of its provincial constitution. [This is also entirely unlike the abolition of the National Assembly’s upper house (the Legislative Council), which was created by an establishing provision in the ‘Provincial Constitutions’ section of the 1867 Act and which was rendered impliedly repealed by that change to Quebec’s provincial constitution.]

The controversy comes on the heels of Quebec’s unconstitutional attempt under Bill 96 to unilaterally insert new provisions into the Constitution Act, 1867 that would establish French as its sole official language and recognition as a nation. For a detailed analysis of why this is impermissible (as well as a discussion of section 133 and the Legislative Council), see my paper forthcoming in the Osgoode Hall Law Journal, here.

I remain a bit mystified why more constitutional experts and legal scholars do not seem alarmed by the flouting of Canada’s constitutional amendment rules, especially in the context of Bill 96. The wording of the oath may seem relatively trivial. To many it may also seem archaic, even offensive. But my concern is not that we shouldn’t debate changing it, or that we shouldn’t change it if we conclude we should; my concern is that we follow the prescribed rules of the constitution for doing so.

When elected representatives flout clear rules of the constitution - even its more trivial or symbolic aspects - it is a fundamental rule of law problem. The federal government, and Prime Minister Trudeau specifically, shy away from this issue because of obvious political sensitivities around Quebec, but that is no excuse.

The apparent acquiescence to Bill 96 is dangerous, especially in light of disreputable nonsense emanating from other provinces like Alberta and Danielle Smith’s ‘Alberta Sovereignty Act’. If we cannot count on people to speak out about this stuff, the country and its constitution are potentially in big trouble.