Quebec is trying to unilaterally amend the Constitution, again
The government of Quebec has just tabled a bill proposing that they start ignoring the 155-year-old Constitutional mandate requiring Canadian lawmakers to swear an oath to the sovereign.
This is the second time in two years that Quebec has tried to unilaterally edit the text of the Constitution of Canada, and it's still not entirely clear if they can.
The British North America Act, the 1867 British legislation that created Canada, is pretty explicit that nobody in Canada gets to take their seat as a provincial legislator before first swearing allegiance to the monarch.
“Every Member of a ... Legislative Assembly of any Province shall before taking his Seat therein take and subscribe ... the Oath of Allegiance,” reads Section 128 of the Act.
To this, Quebec's solution is simply to send Ottawa a note saying that they're not going to listen to that part of the Constitution anymore. “Section 128 does not apply to Quebec,” reads the proposed amendment, which Quebec is asking to immediately be slipped into the Constitution.
Typically, it's not nearly this easy to amend the Constitution of Canada. Any change to the text is supposed to require the approval of the House of Commons, the Senate and at least two thirds of the provinces.
And for really foundational changes to the Constitution, it requires unanimous provincial support. Abolishing the “office of the Queen,” for instance, would need a sign-off from all 10 provincial legislatures — making Canada the hardest country in the commonwealth in which to abolish the monarchy (the Brits, by contrast, would only need an Act of Parliament).
But starting last year, the government of Quebec Premier François Legault embraced the idea that it could start rewriting sections of the British North America Act on its own.
The Constitution allows legislatures to amend their own provincial constitutions without federal approval. As the Constitution states, “each province may exclusively make laws amending the constitution of the province.”
But unlike, say, British Columbia, Quebec doesn't have its own written constitution. Just like Canada, the province's founding document is the British North America Act.
And so, in 2021 legal scholar Patrick Taillon publicly proposed that Quebec could simply start rewriting the Quebec-specific parts of the British North America Act and nobody would be able to stop them.
The Legault government seized on the idea, and within weeks they had sent a package of amendments to Ottawa rewriting the BNA Act to identify Quebec as a “nation” and to include a caveat that “the only official language of Québec is French.”
Although nobody had ever tried unilaterally rewriting the BNA Act before, the move quickly got the green light from Prime Minister Justin Trudeau, who said at the time it was “perfectly legitimate for a province to modify the section of the Constitution that applies specifically to them.” The leaders of all other major parties at the time quickly signalled their assent.
Of course, just because the changes didn't receive any political pushback doesn't mean that they're constitutional. In a scathing critique of the 2021 changes, Mcgill University constitutional scholar Ian Peach said that permitting legislatures to change the “constitution of the province” only means they can alter their “small-c” constitution; the set of written and unwritten laws which govern provincial affairs. It doesn't mean they can just start slipping edits into the national “big-c” Constitution.
“Simply reading the text of the Constitution Act, 1982, as well as surveying the history of previous amendments to the Constitution since patriation, provides one with the clear answer that Quebec cannot do so,” wrote Peach.
The Oath of Allegiance has been a controversial requirement among Quebec legislators ever since the 1960s, although hardcore Quebec nationalists have typically gotten around the provision by crossing their fingers during the oath, or by appending it with the clause, “until the people of Quebec are free.”
Right now, the entire three-member caucus of the Parti Québécois is refusing to take their seats in the Quebec National Assembly in order to dodge the requirement to swear allegiance to King Charles III.