There’s no official French version of the 1867 Constitution Act. So is taking the oath to the King in French valid?

FILE: King Charles III (Photo: Dan Marsh/Flickr, CC BY-SA 2.0)

Since the election of the first Parti Québécois legislators in 1970, controversy over Québec MNAs swearing an oath to the sovereign before taking their seats in the National Assembly has stirred emotion and sparked heated debate.

PQ leader Paul St-Pierre Plamondon recently fuelled the controversy by stating loudly and clearly that he will not swear allegiance to King Charles. His PQ colleagues followed suit as did Québec solidaire MNAs, who have since changed their minds.

On Nov. 2, the president of the National Assembly, François Paradis, issued a ruling that unequivocally stated MNAs cannot take their seat in the National Assembly without first swearing an oath to the King. He further ordered the sergeant-at-arms to expel any member who refused to comply.

On Dec. 1, the PQ MNAs were consequently denied entry to the National Assembly’s Blue Room, the chamber where the debates and the votes take place.

Meanwhile, the CAQ government of François Legault has pledged to table a bill in the National Assembly that would allow Québec MNAs to opt out of the obligation to swear an oath to the King.

However, it’s unclear whether Québec’s legislature has the ability to unilaterally amend the relevant provision of the Constitution.

As constitutional scholars and language rights experts, we have been motivated by heightened interest in this issue to explore another question that is often ignored: is the parliamentary practice of Québec MNAs and federal MPs swearing an oath to the King in French constitutional?

Only the English version is official

The question arises because the obligation to swear an oath to the sovereign originates in Sec. 128 of the 1867 Constitution Act, passed by the Parliament of the United Kingdom in English only. The official English version states that every member of a legislative assembly must take the oath by repeating the following:

“I (Member’s name) do swear that I will be faithful and bear true allegiance to (His) Majesty (King Charles).”

There are unofficial French versions of the 1867 Constitution Act, published on the websites of the Department of Justice Canada and Québec’s Secretariat for Canadian Relations, where the oath has been translated. But these translations lack the force of law.

The fact that no official French version of the 1867 Constitution Act exists in 2022 is nothing short of an aberration. This situation is all the more troubling given that Sec. 55 of the 1982 Constitution Act requires the federal justice minister to draft a French version of the parts of Canada’s Constitution that, like the 1867 act, were enacted in English only for strictly historical reasons.

Once the French version has been drafted, which was done by 1990, it must be put forward for immediate enactment. However, the French version must be passed according to the constitutional amendment procedure. In the case of the 1867 Constitution Act, enacting the full French version requires the consent of all members of the federation.

Forty years after the patriation of the Constitution, this level of consent has still not been achieved due to a lack of political will.

The option of taking the oath in French

Despite the problems described above, both the House of Commons and the National Assembly allow their members to take the oath in French. In Québec, this practice dates back to the 1791 Constitutional Act, which specified in its original English version that new members of the legislative assembly of Lower Canada were to take an oath to the sovereign “in the English or French Language” (Sec. 29).

The Journal of the House of Assembly of Dec. 17, 1792, confirms that French-speaking members were allowed to take the oath in French.

Although the option of taking the oath “in the… French Language” is not explicitly enshrined in the 1840 Union Act or the 1867 Constitution Act, the practice of allowing members of legislative assemblies to take the oath in French has been maintained publicly on a peaceful and continuous basis without protest.

Is this practice constitutionally justifiable, or should one conclude that the oath taken in French by members of legislative assemblies since the advent of the Canadian federation is invalid because of a technical defect?

Such a conclusion would have dramatic consequences, to say the least, as it would call into question the validity of the votes in which these members participated, and the validity of the laws passed under their leadership.

Taking the oath in French is constitutional

In our view, the practice of allowing Québec MNAs and federal MPs to take their oaths in French is constitutional. The 1867 Constitution Act must be interpreted in light of Canada’s linguistic duality.

One of the objectives of the union of the British colonies into a federation was to grant the French-speaking minority a legislature in which its members would be in the majority and could legislate, in French, on important matters such as education, culture and private law.

Several provisions of the Constitution aim to protect minority rights. For example, Sec. 133 of the 1867 Constitution Act gives Québec MNAs and federal MPs the right to use either French or English in parliamentary debate. It would make little sense for this same law to require Québec MNAs and federal MPs to swear an oath in English as a prerequisite to using the official language of their choice in legislative proceedings.

It should also be noted that Sec. 128 of the 1867 Constitution Act does not state that the oath must be taken in English. To the extent that any ambiguity exists regarding the language of the oath, it must be resolved in a manner consistent with the constitutional principle of respect for minorities (recognized by the Supreme Court of Canada in its Reference re Secession of Quebec judgment) while taking into account the primary purpose of this provision.

What really matters under Sec. 128 is the member’s affirmation of loyalty to the sovereign — who personifies the Canadian state — and not the official language in which the oath is taken.

Since 1982, Sec. 16(1) of the Canadian Charter of Rights and Freedoms has eliminated any ambiguity at the federal level by providing that:

“English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.”

Given that English and French have equal legal status in the House of Commons, it follows that federal MPs are able to swear the oath to the King in either language.

For these reasons, we believe that Québec MNAs and federal MPs can validly take their oaths in French, even though only the English version of the 1867 Constitution Act has official status.

Yet the fact remains that the patriation of the Constitution will remain an unfinished task as long as the members of the federation fail to fulfil their duty to pass French versions of English-only constitutional legislation.

Yan Campagnolo, Professor of Constitutional Law, L’Université d’Ottawa/University of Ottawa and François Larocque, Professor, Research Chair in Language Rights, Faculty of Law | Professeur, Chaire de recherche Droits et enjeux linguistiques, Faculté de droit. 2021 Fellow, Fondation Pierre Elliott Trudeau Foundation, L’Université d’Ottawa/University of Ottawa

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