How Would We Amend or Abolish the Oath of Allegiance to the King in the Constitution Act, 1867 ?


The Leaders’ Debate and the Demise of the Crown

During Radio-Canada’s leaders’ debate on 22 September 2022, the moderator Patrice Roy barely suppressed his own condescending laughter to ask the leaders of five political parties, “Should we still, in Quebec, swear allegiance to the British Crown, thus ‘Charles III’?” to become a Member of the National Assembly. He also noted that Québec solidaire (a left-wing secessionist party) had tabled legislation in the previous National Assembly to make swearing the oath optional.

Premier François Legault said that he wouldn’t mind studying the question and possibly making changes but that he did not regard it as a priority; Liberal leader Dominique Anglade and Conservative leader Éric Duhaime circumvoluted less elegantly and less succinctly to the same effect. But Paul St. Pierre Plamondon, the leader of the Parti Québécois, and Gabriel Nadeau-Dubois, the “male spokesperson” of Québec solidaire, denounced unambiguously what they regard as the absurdity of the oath, St. Pierre Plamondon on republican and secessionist principle and Nadeau-Dubois on the “because it’s 2022” teleology. No one on the stage seemed to take the oath of allegiance seriously, and even moderator Patrice Roy let out some incredulous chuckles whilst putting the question to the four party leaders and one male spokesperson.

François Legault led his Coalition Avenir Québec to a second consecutive and even larger parliamentary majority on 3 October 2022, winning 90 out of 125 seats. And on 18 October, Legault rejected St. Pierre Plamondon’s unconstitutional idea of passing a simple motion that would permit the three Péquistes elected to take their seats in the National Assembly without swearing the oath of allegiance on the grounds that a mere motion of a legislative body cannot supersede a provision of the Constitution Act, 1867.[1] Being a lawyer himself, Paul St. Pierre Plamondon should already understand that concept.

What the Constitution Act, 1867 Says on the Oath of Allegiance

Section 128 of the Constitution Act, 1867 states that all Members of Parliament-elect and Senators-designate in Ottawa, as well as all members-elect of the legislative assemblies of the ten provinces, must swear or affirm an oath of allegiance to the King before taking their seats in these legislative bodies to become MPs, Senators, MHAs, MNAs, MPPs, or MLAs representing their constituents. This provision therefore applies equally to both the federal and provincial orders of government. If they do not swear the oath of allegiance, then these victorious candidates cannot become members of the legislative body to which they were elected and thus cannot benefit from parliamentary privilege. Reciting the oath of allegiance is quite simply a necessary condition for becoming a member of parliament or of a legislative assembly in Canada. 

128. Every Member of the Senate or House of Commons of Canada shall before taking his Seat therein take and subscribe before the Governor General or some Person authorized by him, and every Member of a Legislative Council or Legislative Assembly of any Province shall before taking his Seat therein take and subscribe before the Lieutenant Governor of the Province or some Person authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act; and every Member of the Senate of Canada and every Member of the Legislative Council of Quebec shall also, before taking his Seat therein, take and subscribe before the Governor General, or some Person authorized by him, the Declaration of Qualification contained in the same Schedule.

The Fifth Schedule of the Constitution Act, 1867 then prescribes the form of the oath of allegiance as follows:

THE FIFTH SCHEDULE

 Oath of Allegiance

I A.B. do swear, That I will be faithful and bear true Allegiance to Her Majesty Queen Victoria.

Note. — The Name of the King or Queen of the United Kingdom of Great Britain and Ireland for the Time being is to be substituted from Time to Time, with proper Terms of Reference thereto.

MPs-elect would now recite the oath as, “I, A.B., do swear, that I will be faithful and bear true allegiance to His Majesty King Charles III.”

We really should have updated the note specifying how the form of the oath changes upon patriation in 1982, because the Imperial Crown multiplied into a personal union in 1931, which means that Canadian MPs-elect now pledge allegiance to the King of Canada, or the King in his Canadian capacity, and no longer to the King in his British or Imperial capacity. Yet the Constitution Act, 1867 remains littered with all sorts of bizarre unenforceable and defunct artifacts like this note in the Fifth Schedule and references to “the British Empire” (like in the preamble and in section 132), which no longer exists as such. Unfortunately, our failure to update the note in this Fifth Schedule in 1982 lends some credence to the assertions of St. Pierre Plamondon and other Quebeckers that they do not wish to pledge allegiance to “the King of England.” I agree, because we should pledge allegiance to the King of Canada. We should also have updated the oath of allegiance for parliamentarians in line with the oaths of allegiance for naturalised citizens and members of the Canadian Armed Forces by adding in the phrase “his heirs and successors.” Ironically, the wording in the note about the “King or Queen of the United Kingdom of Great Britain and Ireland” no longer even accurately reflects the title of the “King of the United Kingdom of Great Britain and Northern Ireland” used since the 1920s.

If Paul St-Pierre Plamondon wants to take his seat in the National Assembly and serve his constituents, he must pledge allegiance to King Charles III. If he refuses and wants instead to martyr himself for the cause of secessionism, then he shall not become a Member of the National Assembly in the 43rd Parliament. St-Pierre Plamondon would blaze a new trail of principled secessionist opposition and break with the purely instrumentalist mentality that both the Parti Quebecois and Bloc Quebecois have adopted since 1970. He would instead follow the precedents of Sinn Fein MPs-elect in Northern Ireland, who never take their seats in the Westminster Parliament because they refuse to pledge allegiance to the King of the United Kingdom of Great Britain and Northern Ireland.

In other words, St-Pierre Plamondon will soon fold, mutter “Sa majesté le Roi Charles III” under his breath whilst crossing his fingers behind his back, and become the Member of the National Assembly for Camille-Laurin in the 43rd Parliament. He will close his eyes and think of Quebec.

Amending or Repealing the Oath of Allegiance to the King

In any case, St-Pierre Plamondon’s protestations raise an interesting and pertinent question of how, precisely, a provincial legislature or the Parliament of Canada would go about amending or repealing the oath of allegiance that MPs-elect must take.

Amending or repealing both section 128 and its corresponding Fifth Schedule would fall under the same amending procedure since they are inextricably linked.

Section 41 of the Constitution Act, 1982, the Unanimity Amending Procedure, only applies to the five specific things that it lists, and the oath of allegiance is not one of them. I would argue that swearing an oath of allegiance to the King does not fall under “the office of the King” but merely recognises the paramountcy of the Sovereign. Whether the oath of allegiance exists or not and whatever wording it contains does not affect the existence or operation of the authorities of the office of the king. The executive government and authority in and over Canada will continue to vested in the King of Canada even if we abolish the oath of allegiance altogether. The Westminster Parliament has established oaths of allegiance in statute over the centuries both before and after colonising North America, and the Parliament of Canada has unilaterally modified or created oaths of allegiance in other areas, such as for naturalised citizens and members of the Canadian Armed Forces.

Section 42 of the Constitution Act, 1982 lists six specific areas to which the General Amending Procedure must apply and reinforces the general enumeration of the General Amending Procedure in section 38. Section 42 does not list the oath of allegiance amongst its classes of subjects.

The Section 43 Amending Procedure uses the multilateral procedure of concurring resolutions adopted by the requisite legislative bodies promulgated by a proclamation of the Governor General and applies to “An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces […]”. In full, the clumsy English version of section 43 of the Constitution Act, 1982 says:

Amendment of provisions relating to some but not all provinces 

43 An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including

(a) any alteration to boundaries between provinces, and

(b) any amendment to any provision that relates to the use of the English or the French language within a province,

may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.

The French version of section 43 contains wording both more artful and clear.

43 Les dispositions de la Constitution du Canada applicables à certaines provinces seulement ne peuvent être modifiées que par proclamation du gouverneur général sous le grand sceau du Canada, autorisée par des résolutions du Sénat, de la Chambre des communes et de l’assemblée législative de chaque province concernée. Le présent article s’applique notamment :

a)aux changements du tracé des frontières interprovinciales;

b)aux modifications des dispositions relatives à l’usage du français ou de l’anglais dans une province.

The Section 43 Amending Procedure applies to an existing provision of the Constitution of Canada that affects one or some but not all provinces, and not to a proposed amendment that would affect one or some but not all provinces. Since section 128 and the Fifth Schedule of the Constitution Act, 1867 applies not only to all ten provinces but also to Ottawa, it therefore logically cannot fall under the ambit of the Section 43 Amending Procedure. In other words, since section 128 applies equally to all ten provinces (and Ottawa), we could not use the Section 43 Amending Procedure to split section 128 after the fact and amend or repeal section 128 for one or some but not all provinces.

The Section 45 Amending Procedure allows the provincial legislatures to amend their own provincial constitutions unilaterally:

Amendments by provincial legislatures

 45 Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.

But section 128 and the Fifth Schedule of the Constitution Act, 1867 form part of the “Constitution of Canada,” not the “constitution of the province.” They would therefore not fall under the ambit of the Section 45 Amending Procedure.

Similarly, the Section 44 Amending Procedure gives the Parliament of Canada a limited authority to amend the Constitution of Canada under narrow circumstances:

Amendments by Parliament 

44 Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.

(Interestingly, the French version of Section 44 uses slightly different wording. It says in English that “Parliament has exclusive competence to modify the provisions of the Constitution of Canada” instead of simply “the Constitution of Canada”. But section 128 of the Constitution Act, 1867 is, in any case, a provision of the Constitution of Canada).

I suggested nine years ago in “An Oath of Allegiance If Necessary, But Not Necessarily to the Queen” that the Parliament of Canada could amend or repeal the oath of allegiance for federal MPs-elect and Senators-designate under the Section 44 Amending Procedure. Today, I am no longer so sure.

One could argue by the strict wording of Section 44 that the oath of allegiance forms part of the “Constitution of Canada […] in relation to the Senate and House of Commons” and that the Parliament of Canada could amend or repeal the oath of allegiance for MPs-elect and Senators-designate unilaterally. Yet it would also seem deeply unfair and faintly absurd to bifurcate the amendment of section 128 of the Constitution Act, 1867 into an easy unilateral amending procedure for Ottawa but force the provinces to subject themselves to the veto of other provinces and Ottawa under the general multilateral amending procedure. I would argue today that this would also violate the grammatical meaning of the provision.

Section 128 groups together the House of Commons, Senate, and legislative assemblies of all ten provinces into one provision and subjects these twelve legislative bodies to the same unified oath of allegiance to the King. The subordinate clause at the end of the first independent clause “the Oath of Allegiance contained in the Fifth Schedule to this Act” modifies equally the clauses beginning “Every Member of the Senate or House of Commons of Canada” and “every Member of a Legislative Council or Legislative Assembly of any Province”.

In a second independent clause, section 128 then groups together “every Member of the Senate of Canada and every Member of the Legislative Council of Quebec” with respect to “the Declaration of Qualification.” (Since Quebec abolished its Legislative Council in 1968, we really should have struck out the clause “and every Member of the Legislative Council of Quebec” in 1982!) Grammatically speaking, if we can split section 128 in any way into multiple provisions, it could only logically be split into these two hypothetical provisions 128A and 128B:

“128A. Every Member of the Senate or House of Commons of Canada shall before taking his Seat therein take and subscribe before the Governor General or some Person authorized by him, and every Member of a Legislative Council or Legislative Assembly of any Province shall before taking his Seat therein take and subscribe before the Lieutenant Governor of the Province or some Person authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act.”

“128B. Every Member of the Senate of Canada and every Member of the Legislative Council of Quebec shall also, before taking his Seat therein, take and subscribe before the Governor General, or some Person authorized by him, the Declaration of Qualification contained in the same Schedule.”

In other words, “every Member of the Senate or House of Commons of Canada” and “every Member of a Legislative Council or Legislative Assembly of any Province” constitute one entity, not something that can be chopped up piecemeal for up to twelve separate legislative bodies with different requirements and different oaths of allegiance by way of the Section 44 and Section 45 Amending Procedures. Section 128 is therefore best understood as a provision of the Constitution of Canada in relation to the House of Commons, Senate, and ten legislative assemblies simultaneously – not merely as a provision of the “Constitution of Canada […] in relation to the Senate and House of Commons” alone, as the Section 44 Amending Procedure says. It falls outside the narrow ambit of Section 44.

Therefore, exempting or singling out some but not all of the twelve legislative bodies now covered by section 128 would change the meaning of section 128 as a whole. Since section 128 deliberately groups together all federal and provincial legislative bodies, it really ought to fall entirely under the General Amending Procedure.

Conclusion

Perhaps a plausible argument exists that the unilateral amending procedures suffice and allow either Ottawa or the provinces to amend or repeal the oath of allegiance. Political expediency would certainly demand taking refuge in the unilateral amending procedures instead of resorting to the multilateral general procedure. I find the legal-constitutional case for the unilateral amending procedure less convincing than that for the general multilateral procedure; that said, I would be curious to read other considered opinions on this question and remain open to changing my viewpoint.

In conclusion, I would argue that the best and most logical answer is that amending or repealing both the text of section 128 and the Fifth Schedule to the Constitution Act, 1867 as they apply to the various legislative bodies of the provinces and Ottawa now falls under the General Amending Procedure and section 38 of the Constitution Act, 1982. The House of Commons, Senate, and at least seven of the ten provincial legislative assemblies representing at least one half of the total population of the provinces would have to adopt concurring resolutions to amend or repeal the oath of allegiance – even only for one province. Neither Ottawa nor any one province can amend or repeal the oath of allegiance for itself unilaterally but remains subject to the veto of other legislative bodies.

St. Pierre Plamondon might have better luck in convincing Quebeckers to turn Quebec into an independent, sovereign republic than in convincing legislative bodies across Canada to allow Quebec to abolish the oath of allegiance to the King.

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Notes

[1] Patrick Bellerose, « Serment au roi : le gouvernement Legault rejette la solution de PSPP », Le Journal de Québec, le 18 octobre 2022.

About J.W.J. Bowden

My area of academic expertise lies in Canadian political institutions, especially the Crown, political executive, and conventions of Responsible Government; since 2011, I have made a valuable contribution to the scholarship by having been published and cited extensively. I’m also a contributing editor to the Dorchester Review and a member of the editorial board of the Journal of Parliamentary and Political Law.
This entry was posted in Amending Formulas, Constitution (Written), Crown (Powers and Office), Oaths of Allegiance. Bookmark the permalink.

2 Responses to How Would We Amend or Abolish the Oath of Allegiance to the King in the Constitution Act, 1867 ?

  1. Jim Whyte says:

    One might reflect that M. Roy and Me. St. Pierre Plamondon were talking about the “King of England”, and the most recent one of those was that hero of old Orange Ontario, King Billy….

    Like

  2. David Winner says:

    Thank you for you insight on Canadian politics. I always look forward to your blog!

    Like

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