The New Nationalism in 21^st-Century Quebec

The recent demise of the Crown from Queen Elizabeth II to King Charles III has made the occasional flare ups of active derision toward constitutional monarchy the new normal state of affairs in Quebec and has merged with the powerful current of unilateral autonomism already flowing through Quebec’s politics. Charles III happened to ascend to the throne and become the King of Canada during Quebec’s most recent provincial general election, which provided nationalists and secessionists long tired of the oath of allegiance to the Crown that MNAs-elect must swear to become full-fledged MNAs the perfect political opportunity. The oath of allegiance to the Sovereign in 128 of the Constitution Act, 1867 has become the latest flashpoint in this New Nationalism in Quebec.

In my view, nationalism in Quebec has gone through three distinct stages since Patriation in 1982. This is how I perceive the evolution of Quebec’s politics over the last forty years as a bilingual but not bicultural English-speaker peering in on another world, so you should ingest as many grains of salt as you think fit.

Quebec nationalists, led by Liberal Premier Robert Bourassa, initially reacted to Patriation by working within the new amending procedures contained in the Constitution Act, 1982. They tried to persuade the rest of Canada to recognise Quebec as a distinct society (and accept the asymmetrical federalism that would come along with it) and pursued the Meech Lake Accord between 1987 and 1990 and Charlottetown Accord in 1992 under the unanimity amending procedure. English-speaking Canadians largely abandoned Compact Theory, the idea that Confederation represented a bargain between two founding British and French settler populations,[1] after Canadians as a whole (including over 56% of Quebeckers) defeated the Charlottetown Accord in the referendum held on 26 October 1992.[2] The inter-governmental and legislative defeat of the Meech Lake Accord in 1990 and the popular rejection of the Charlottetown Accord in 1992 showed Quebec nationalists that they could not achieve their aims within Canada. Some of them, such as Mario Dumont (formerly the head of the Liberal Party of Quebec’s youth wing) joined the secessionists and supported a second referendum to secure Quebec’s distinctiveness unilaterally as an independent, sovereign state. Yet this, too, failed when Quebeckers narrowly rejected this approach in October 1995 and the “No” (Remain) side eked out a small victory thanks to what Premier Jacques Parizeau denounced as “money and ethnic votes.”

After a few years of disarray, nationalists and secessionists re-grouped in the 21^st century and adopted a third strategy of aggressive unilateral autonomism, bearing some resemblance to Duplessis’s pre-Quiet Revolution posture: they have resigned themselves to remaining within Canada (at least for now), and – crucially – they simply no longer concern themselves in the slightest with obtaining recognition from the rest of Canada.

This approach started to become apparent in Quebec’s general election of 2007 when Mario Dumont rose to prominence on a program of autonomisme to the point where his Action démocratique du Québec (ADQ) held Jean Charest’s Liberals to a plurality of seats and a minority government. Dumont unleashed the forces which eventually pierced through the half-century of malaise and stagnation created by l’alternance libérale-péquiste, but the nascent autonomist movement suffered some setbacks over the next decade. Charest won another majority in his snap election of 2008 but lost to the Parti québécois of Pauline Marois in 2012. The ADQ merged with the Coalition pour l’avenir du Québec (CAQ) that same year under the leadership of former Péquiste cabinet minister and businessman François Legault. The Péquistes then lost to another Liberal majority under Philippe Couillard in 2014.

François Legault finally led this party (now officially going by the curiously ungrammatical moniker Coalition Avenir Québec) to victory and brought this aggressive unilateral autonomism to power in October 2018. The Coalition secured a second consecutive and even larger parliamentary majority on 3 October 2022, winning 90 out of 125 seats. Nationalists now simply assert Quebec’s autonomy and distinctiveness unilaterally yet within Canada. Even the Bloc Québécois mimicked this unilateral autonomism federally earlier this year by tabling Bill C-246, which would have granted Quebec one-quarter of MPs in the House of Commons irrespective of its population. The bill would have relied on the unilateral federal constitutional amending procedure under Section 44 of the Constitution Act, 1982, when in fact only a constitutional amendment under the General Amending Procedure could disturb the principle of representation by population and grant a province a fixed percentage of MPs.

Nationalism in Quebec Takes Refuge in Unilateral Autonomism and the Section 45 Amending Procedure

Quebec pioneered a procedural innovation in June 2022 where the Section 45 Amending Procedure, which always provincial legislatures to amend the constitution of the province unilaterally as normal statute, has become the new instrument for expressing its unilateral autonomism. For instance, Quebec used the Section 45 Amending Procedure to insert two new sections that recognise Quebecers as a nation the only official language of which is French directly into the part of Quebec’s provincial constitution housed in the Constitution Act, 1867.[3] Through the Act respecting French, the Official and Common Language of Quebec, the legislature of Quebec inserted new sections 90.Q1 and 90.Q2 directly into section 90 of the Constitution Act, 1867, which outlines “Provincial Constitutions”; the new provisions declare, respectively, that “Quebeckers form a nation” and that “French is the only official language of Quebec and the common language of the Quebec nation.”[4] The “Q” in the numeration of these new sections presumably stands for Quebec. Prior to 2022, provinces had only impliedly repealed or amended provisions in Part V (“Provincial Constitutions”) of the Constitution Act, 1867 through organic statutes without necessarily invoking the Section 45 Amending Procedure. But Quebec charted a new course, which Saskatchewan has now emulated with a bold declaration of its own autonomy against Ottawa through the Saskatchewan First Act.[5]

But the Legault ministry went one step further this week by tabling a bill which purports to amend the Constitution Act, 1867 directly outside of the Part V, which covers provincial constitutions. Bill 4, La Loi visant à reconnaître le serment prévu par la Loi sur l’Assemblée nationale comme seul serment obligatoire pour y siéger, would amend section 128 of the Constitution Act, 1867 – the provision which makes reciting the oath of allegiance to the Sovereign a necessary condition for becoming an MP and taking one’s seat in an assembly – by adding provision 128.Q1: “L’article 128 ne s’applique pas au Québec.” Section 128 does not apply to Quebec. In other words, the legislature of Quebec would exempt itself from the requirement that MNAs-elect must recite the oath of allegiance to the King before becoming MNAs. Instead, the alternate and secondary republican oath of allegiance that Quebec enacted in 1982 under its Loi sur l’Assemblée nationale (National Assembly Act) shall become the only oath of allegiance that MNAs-elect must swear to become MNAs proper.

ANNEXE I

(Article 15)

SERMENT DU DÉPUTÉ

Je, (nom du député), déclare sous serment que je serai loyal envers le peuple du Québec et que j’exercerai mes fonctions de député avec honnêteté et justice dans le respect de la constitution du Québec.[6]

SCHEDULE I

(Section 15)

OATH OF A MEMBER

I, (name of the Member), declare under oath that I will be loyal to the people of Québec and that I will perform the duties of Member honestly and justly in conformity with the constitution of Québec.[7]

Members-elect of the National Assembly will soon only swear an oath of allegiance to the people of Quebec – a dangerous and fundamentally illiberal idea in principle. A sound republican oath would recognise only the rule of law itself, not the people, and thus have elected representatives swear their loyalty to the constitution itself, like the American oaths of allegiance. “Je jure ma fidelité à la constitution du Québec” would make a much better and oath because it recognises the rule of law rather than the nation.

Interestingly, Sol Zanetti, a MNA from Quebec Solidaire, had already introduced Bill 190, which aims to abolish the oath of allegiance to the King in a softer and less controversial way. Bill 190 purports to amend only the National Assembly Act would therefore only amend section 128 of the Constitution Act, 1867 by necessary implication. It says:

1. La présente loi a pour objet de reconnaître le serment des députés envers le peuple du Québec comme seul serment obligatoire à leur entrée en fonction. LOI SUR L’ASSEMBLÉE NATIONALE

2. L’article 15 de la Loi sur l’Assemblée nationale (chapitre A-23.1) est modifié par l’ajout, à la fin, de ce qui suit : « Aucun autre serment ne peut être exigé d’un député pour siéger à l’Assemblée. Ce serment est reçu par le secrétaire général.

Bill 190 would therefore in some ways continue Quebec’s current system of dual and contradictory oaths of allegiance; it would make the oath of the people of Quebec the de facto primary oath and the only oath for MNAs-elect who would prefer not to swear allegiance to the King, yet it would also give MNAs-elect the option of also reciting the oath the King in accordance with section 128 of the Constitution Act, 1982. Section 2 of the bill says that “no other oath can be required,” but it does not outright exempt Quebec from section 128 as Legault’s bill does.

Bill 190 would probably still be unconstitutional because it impliedly amends section 128 unilaterally, but it still seems much less obviously offensive and looks like a smarter, perhaps more Machiavellian method of achieving the same goal that Legault has declared so brashly.

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 Quebec nationalists and secessionists who do not wish to pledge allegiance to “the King of England.” We should pledge allegiance to the King of Canada and 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 Sovereign of Canada’s title and tacking on the phrase “and 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.

The Constitutionally Correct Way of Amending the Oath of Allegiance

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. By the process of elimination, the best view is that section 128 and its schedule fall under the General Amending Procedure.

The Unanimity Amending Procedure under section 41 of the Constitution Act, 1982 only applies to the five specific things that it lists, and the oath of allegiance is not one of them. Swearing an oath of allegiance to the King does not fall under “the office of the King” per se because it does not affect the existence or operation of the authorities of the office of the king. The oath recognises the foundations of our political system, but they still exist without the oath. 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 128 and its corresponding Fifth Schedule therefore fall outside the narrow ambit of Section 44, which allows the Parliament of Canada alone to amend the Constitution of Canada “in relation to the executive government of Canada or the Senate and House of Commons,” apart from matters already listed under the Unanimity and General Amending Procedures. Similarly, Section 45, which allows legislatures to “exclusively make laws amending the constitution of province” does not apply because section 128 and the Fifth Schedule of the Constitution Act, 1867 form part of the “Constitution of Canada” – not even the part pertaining to “Provincial Constitutions – and thus not the “constitution of the province.”

Finally, 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.

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

The Prime Minister already indicated a few weeks ago that Ottawa would not interfere with Quebec’s plans to exempt itself from the oath of allegiance to the King. So Quebec will enact this statute under the wrong amending procedure, which will make it unconstitutional. And yet it will stand for the time being.

Furthermore, the day that the Lieutenant Governor of Quebec signs this bill into law, the Government of Quebec will release the 3^rd edition of its “Administrative Consolidation of the Constitution Act, 1867 and the Canada Act, 1982” showing Section 128.Q1 underneath section 128. Quebec released the 2^nd edition of this document on 1 June 2022 to assert the legitimacy of sections 90.Q1 and 90.Q2.[8] which even in its 1^st edition of 2021 already differed from the federal Department of Justice’s “Consolidation of the Constitution Acts, 1867-1982.” The Moe ministry chose to recognise the legitimacy of sections 90.Q1 and 90.Q2, so the Saskatchewan First Bill would add section 90S.1(1) after sections 90.Q1 and Q2. If Saskatchewan’s unilateral direct amendment of the Constitution Act, 1867 receives Royal Assent before the National Assembly passes Bill 4, then perhaps the Government of Quebec will extend mutual diplomatic recognition to the Saskatchewan and include both Section 90.S1 and Section 128.Q1 in the 3^rd edition of its consolidation.

Perhaps this inevitably happens in a country which gave up on the multilateral General Amending Procedure and the Unanimity Procedure thirty years ago. A new generation of politicians rejects the status quo of the Constitution of Canada unamendable at the two highest thresholds and has responded to the constitutional stagnation by unilaterally expanding the scope of the existing unilateral amending procedures. The “post-national State” of Canada has now, perhaps rather fittingly, given itself a post-modern Constitution: we cannot agree on what the Constitution Acts say because we cannot agree on where the unilateral versus multilateral amending procedures apply. Without a proper legal understanding of the scope of each constitutional amending procedure, multiple versions of the Constitution Acts now compete and will continue to proliferate for validity and supremacy based on political and diplomatic gambits where provinces mutually recognise or Ottawa unrecognises constitutional amendments. Even when Quebec published the 1^st edition of its consolidation in January 2021, it already differed from the federal Department of Justice’s consolidation because Quebec rejects the doctrine of indirect amendment. Now multiple competing consolidations of the Constitution Acts, 1867-1982 have begun to proliferate. This arbitrary political approach calls into question the legitimacy of the constitutional order itself. In particular, no one seems to know – or is willing to enforce – what falls under the bilateral and general multilateral amending procedures versus the respective unilateral federal and provincial procedures.

Similar Posts:

• How Would We Amend or Abolish the Oath of Allegiance to the King in Constitution Act, 1867 ? (October 2022)
• The Section 45 Constitutional Amendment Becomes a Vehicle for Provincial Autonomism (November 2022)
• Review of Donald F. Bur’s Laws of the Constitution (October 2022)
• Who Decides What the Constitution Is and Says? Quebec Modifies the Text of the Constitution Act, 1867 (June 2022)
• The Strange Taboo Against Constitutional Amendment in Canada (May 2022)

Notes

[1] Paul Romney, Getting It Wrong: How Canadians Forgot Their Past and Imperilled Confederation (Toronto: University of Toronto Press, 1999).

[2] Curtis Cook, “Table 1: Provincial Vote, Referendum of 26 October 1992”, in Constitutional Predicament: Canada After the Referendum of 1992, edited by Curtis Cook, 2-24 (McGill-Queen’s University Press, 1994), 7. Majorities in British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, and Nova Scotia voted against the Charlottetown Accord, while majorities in Ontario, New Brunswick, Prince Edward Island, and Newfoundland and Labrador supported it. Fully 56.7% of Quebeckers rejected it.

[3] Unlike the interpretative “Canada Clauses” in the Meech Lake and Charlottetown Accords, these new provisions should not affect how federal courts interpret the Constitution Acts overall. The Government of Quebec started issuing its own consolidations of the Constitution Acts in 2021 and issued the second edition of its consolidation in June 2022 to take sections 90.1 and 90.2 of the Constitution Act, 1867 into account. The federal Department of Justice issued its most recent Consolidation of the Constitution Acts, 1867 to 1982 on 1 January 2021, before this bill became law. The federal Department of Justice will have to decide whether it regards the Legislature of Quebec’s constitutional amendment under the Section 45 Procedure as legitimate direct amendments to the text of the Constitution Act, 1867 and therefore whether it will list these sections 90.1 and 90.2 in its next consolidation. Québec. Secrétariat du Québec aux relations canadiennes, Codification administrative de la Loi constitutionnelle de 1867 et de la Canada Act 1982 (Gouvernement du Québec, 2021). Indeed, it is telling that the Government of Quebec refuses to use the term “Constitution Act, 1982”, given that the Government of Canada patriated the Constitution Acts over Quebec’s objections; Québec. Secrétariat du Québec aux relations canadiennes, Codification administrative de la Loi constitutionnelle de 1867 et de la Canada Act 1982, 2^e ed (Gouvernement du Québec, le 1^e juin 2022).

[4] Québec. Secrétariat du Québec aux relations canadiennes, Codification administrative de la Loi constitutionnelle de 1867 et de la Canada Act 1982, 2^e édition (Gouvernement du Québec, Lois codifiées au 1^e juin 2022).

[5] Saskatchewan, Bill No. 88, An Act to Assert Saskatchewan’s Exclusive Legislative Jurisdiction and to Confirm the Autonomy of Saskatchewan, 29^th Legislature, 3^rd Session, 1 November 2022, at pages 1-2.

[6] La loi sur l’assemblée nationale, chapitre A-23.1, à annexe I.

[7] National Assembly Act, chapter A-23.1, at Annex I.

[8] Québec. Secrétariat du Québec aux relations canadiennes, Codification administrative de la Loi constitutionnelle de 1867 et de la Canada Act 1982, 2^e édition (Gouvernement du Québec, Lois codifiées au 1^e juin 2022).