The constitutional challenge argues Quebec was not authorized to remove the oath requirement
Two months ahead of Quebec’s general election, a University of Ottawa law professor and the advocacy organization he founded are mounting a constitutional challenge against a Quebec law that lets provincial legislators skip a requirement to take an oath of allegiance to the king.
The requirement is outlined in s. 128 of the Constitution Act, 1867, and applies to members of Parliament and Canada’s provincial legislatures.
In a lawsuit filed with the Superior Court of Quebec on Monday, Lawrence David and the Public Interest Litigation Institute alleges that Quebec’s Bill 4, which passed in December 2022, unlawfully amended the Constitution Act, 1867 to exempt Quebec legislators from the requirement.
Since Bill 4 became law, four newly-elected members of Quebec’s National Assembly have declined to take the oath, the lawsuit noted.
“Quebec passed this law unilaterally, but any amendments that affect the office of the king or the lieutenant governor can only be done unanimously by Parliament and the 10 [provincial] legislatures,” David told Canadian Lawyer on Wednesday. The law professor argues Bill 4 is not valid because it was not approved by Canada’s other legislatures.
Accordingly, the individuals who are elected to the National Assembly during Quebec’s general election this fall, and who opt not to take the oath, will not have valid power in the provincial legislature “because they haven’t fulfilled a condition required for them to sit and vote in the National Assembly,” David says.
“This legal action is not about monarchy or republicanism,” he adds. “It’s simply about if they want to abolish the oath, follow the rules for constitutional amendment.”
Quebec’s National Assembly unanimously passed Bill 4 months after the province’s last general election. The legislation had been tabled by the Coalition Avenir Québec government, which faced pressure from the Parti Québécois, a separatist party. In late 2022, several Parti Québécois members were denied entry to the legislature after refusing to swear an oath to King Charles; another party, Québec Solidaire, had temporarily opted not to include an oath to the king during their members’ swearing-in ceremonies.
According to the lawsuit, Quebec’s Minister Responsible for Democratic Institutions, Canadian Relations, and the Canadian Francophonie relied on s. 45 of the Constitution Act, 1982 to support the province’s right to enact Bill 4. Under s. 45, provincial legislatures have the authority to amend their own constitutions.
However, s. 41 of the Constitution Act, 1982 notes that amendments to Canada’s constitution in certain matters can be made via proclamation by the governor general, but only with the agreement of the Senate, the House of Commons, and each provincial legislature.
The lawsuit argues that s. 45 does not authorize any province, including Quebec, to unilaterally change the Constitution Act, 1867; the provision only allows each province to unilaterally amend the parts of their provincial constitution “that are not also indivisible from the Constitution of Canada.”
The legal action also claims Bill 4 infringes on Quebecers’ right to vote and effective representation, which are protected under the Canadian Charter of Rights and Freedoms, because it results in Quebec residents voting for politicians who cannot actually serve in the National Assembly if they refuse to take the oath of allegiance.
In a post on X, Parti Québécois leader Paul St-Pierre Plamondon denounced the lawsuit, stating that Quebec's elected officials are loyal to the people of Quebec, not the monarchy. He further argued that Canadian institutions will continue to challenge the province's decisions even when they're unanimous, as long as Quebec is not independent.
Provincial efforts to amend Canada’s constitution are not new. David points to s. 93A of the Constitution Act, 1867, which abolished the right to publicly funded denominational and separate schools in Quebec and was enacted bilaterally in the 1990s. But he argues Bill 4 represents a “mismatch.”
“Quebec is saying that they can modify the constitution unilaterally, when in fact the applicable formula is unanimity requiring consent of Parliament and the 10 legislatures,” David says, adding the issues underlying Bill 4 impact every province in Canada.
In 2024, Parliament killed a bill to amend the constitution so that Parliamentarians could opt out of swearing the oath of allegiance to the king.
The Attorney General of Quebec and the Attorney General of Canada did not immediately respond to requests for comment.
