Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 4 - Evidence - Meeting of June 28, 2005
OTTAWA, Tuesday, June 28, 2005
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:37 a.m. to give consider to oath of allegiance to Canada.
Senator David P. Smith (Chairman) in the chair.
[English]
The Chairman: Colleagues, our witness this morning has been very generous in coming on fairly short notice. Mr. James Ross Hurley, a distinguished retired public servant, has studied at Dalhousie University, Strasbourg University, Queen's University and Pembroke College, Oxford, as well as in Italy.
Mr. Hurley has served as a professor of political science at the University of Ottawa. He was the founding director of the parliamentary internship program of the House of Commons, which was a very worthwhile exercise. I know many young people who have had a great start there. He has also been constitutional adviser in the Privy Council Office under six prime ministers and is the author of Amending Canada's Constitution: History, Processes, Problems and Prospects, which was published in 1996.
Mr. Hurley, I believe you have had an opportunity to review the transcripts of the discussions we had last week. We have before us a motion, made by Senator Lavigne in the Senate and referred to this committee, which I believe most of us are approaching with an open mind. However, it would have to be implemented properly without getting us into any constitutional quagmires, and we invite your input on it. Please proceed, Mr. Hurley.
Mr. James Ross Hurley, as an Individual: I will begin with a few initial comments to clarify the issue and set up the discussion.
The Constitution Act, 1867 melded three British North American colonies into a colonial federation. Canada did not become a sovereign and independent state until the Balfour report of 1926, de facto, and the Statute of Westminster of 1931, de jure. Even then, jurisdiction over the amendment of Canada's Constitution remained at Westminster until 1982. It is in this context that one must read section 128 of the Constitution Act, 1867 and the fifth schedule to that act.
Canada is a constitutional monarchy; and in political theory, sovereignty in such a regime derives from the Crown, not from the Constitution or the people. This is no doubt a difficult concept for many to grasp in 2005, especially since the entrenchment of the Canadian Charter of Rights and Freedoms in 1982, which has taken on a life of its own in the hearts and minds of many Canadians.
Oaths, including oaths of allegiance, predate the adoption of modern democratic states. Oaths are intended to circumscribe or limit the liberty or freedom of the individual. In the case of judicial proceedings, the oath to tell the truth is justified in the interest of having an honest and transparent examination of the facts before the court and sanctions are provided for perjury. Oaths not to reveal state secrets may be justified in the interest of protecting the security of the state and sanctions may be provided for violating such oaths.
Such limits on the liberty of individuals may be characterized as ``such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,'' to use the words in the preamble to the Canadian Charter of Rights and Freedoms, which, among other things, guarantees the right of everyone to freedom of thought, belief, opinion and expression.
The position of the monarchy is guaranteed not by any oath of allegiance, but by section 9 of the Constitution Act, which stipulates that the executive government, an authority of and over Canada, is hereby declared to continue to be vested in the Queen. Any constitutional amendment to the office of the Queen requires the consent of Parliament and of all the legislative assemblies of the provinces. That is what forms the basis for the protection of the role of the monarchy in Canada's system.
Section 122 of the Constitution Act, 1867 provides a condition, an oath of allegiance, before a member may take a seat in a legislative body in Canada — the Senate, House of Commons or provincial legislature. The requirement to take the oath itself does not constitute part of the office of the Queen — it is a requirement for sitting in the chamber — and, as such, could be amended under the terms of section 44 of the Constitution Act, 1982, which allows Parliament acting alone to make laws amending the Constitution of Canada in relation to the executive government of Canada, or the Senate and the House of Commons.
There is no sanction provided for advocating a position that contradicts the oath of allegiance. Thus, as you are very much aware, a few years ago a minister of the Crown was able to advocate the abolition of the monarchy, even though he had sworn to be ``faithful and bear true allegiance'' to Her Majesty the Queen.
Oaths without sanctions are largely symbolic. It is a question of playing with mirrors, to a certain extent, but, at the same time, one should never underestimate the importance of symbolism in the national life of a country. Symbolism plays a significant role in governance. Any attempt to impose sanctions for advocating a position contrary to an oath, such as an oath of allegiance, would constitute a limit on the freedom of expression of an individual to advocate change by peaceful and constitutional means and would have to meet the test of ``reasonable limits'' in the Charter and could be challenged before the courts.
Finally, on the issue of oaths, it may well be that in 2005, in light of the work of the Gomery commission, Canadians would be interested in legislators taking an oath to act in an ethical and transparent manner to avoid conflicts of interest and to not use public office for personal gain. In other words, if there is a substantive purpose for taking an oath, it may be that in this day and age it is the behaviour of the incumbent and not necessarily allegiance to the country or to the sovereign that becomes the focus of an oath. I just put that out for consideration.
In his comments at your last meeting, Senator Joyal referred to it as add-ons that might have references to ethical behaviour. In the last analysis, provided no sanctions are provided for behaviour inconsistent with the oath, oaths of allegiance are largely symbolic. I accept that symbolism is terribly important and you can have a roaring debate on what should and should not be in the oath, independent of whether it would have any effect in practice. Now that Canada accepts dual citizenship, one never knows what oaths people might have taken as members of another state that may be in contradiction with the oath taken in Canada. Is there any contradiction in taking an oath of allegiance to Canada and an oath of allegiance to another country such as Syria? However, as long as there is no sanction, it is largely symbolic and the question does not arise.
The Chairman: Senator Lavigne suggested that the add-on could be done through the rules, and Mr. Patrice will be giving us his opinion on that approach. The committee is contemplating a variation on that suggestion from Senator Joyal and whether there are fundamental constitutional problems with that.
Mr. Hurley: I do not think there is any constitutional problem. Section 128 and the schedule to which it refers can be amended by a simple act of Parliament. It is part of the executive government of Canada amendable under section 44. Adding anything either by an act of Parliament or by internal regulations would not be unconstitutional.
Senator Di Nino: Mr. Hurley, you have alleviated some of my confusion on this issue. I agree with you that an oath of allegiance is symbolic. If it were not symbolic, whatever you take away or add would be subject to interpretation. As Senator Joyal said, the addition of a comment about ethical behaviour would likely lead to numerous contradictory interpretations of ``ethical behaviour.''
Could you envision different oaths of allegiance in each House?
Mr. Hurley: That is an interesting proposition. If they were to contradict one another, there might be a problem. However, I would not see a problem with one House having a more extensive oath than the other. Although it may be almost silly, you could include proper behaviour or proper dress in an oath of office. The oath of allegiance is basically your union card to take your seat. You cannot take your seat without having taken the oath of allegiance. That is the true importance.
In Quebec City, when the Parti Québécois was first elected, the members did not want to take the oath of allegiance. The clerk said they could not take their seats if they did not, so they took the oath of allegiance. It seems to me that if they were diametrically opposed, there would be a logical problem. However, adding something to one oath of allegiance would not necessarily make it contradict the other.
For example, if in the Rules of the Senate you were to add the requirement that the person swear allegiance to Canada, to ethical behaviour or to something else, I see no reason why that could not stand on its own. It would be supplementary but it would not contradict the oath taken in the other place.
Senator Di Nino: Is the oath of allegiance exactly the same in the two Houses of Parliament and the provincial and territorial legislatures?
Mr. Hurley: I am not certain about the territories, but The Fifth Schedule of the Constitution Act, 1867 provides the actual words for the oath of allegiance, and so they are currently the same.
Senator Di Nino: As far as you know, no other jurisdiction has changed the oath of allegiance?
Mr. Hurley: That is correct.
The Chairman: Senators take an oath before taking their seats in the Senate, and Senator Joyal's suggestion is a kind of postscript to that.
[Translation]
Senator Robichaud: You are most certainly aware of the amendments made to The Rules of the Senate, of the amendment moved by Senator Lavigne in the Senate, according to which the word ``shall'' will be replaced by the word ``may.'' You say that an oath is symbolic. Therefore, would it be contradictory to take an oath of allegiance to the Queen, and yet make the oath optional? Does making the oath optional diminish the importance of swearing allegiance to the Queen, and vice versa?
Mr. Hurley: In the second case, by making the oath optional, it would serve as an add-on to the oath of allegiance to the Queen.
Senator Robichaud: Can it be done or not?
Mr. Hurley: It would be a bit strange, somewhat asymmetrical, for instance if half of the senators would swear the second oath of allegiance, whereas the other half decided not to. Last, there are all sorts of examples of asymmetry in the world. It is not impossible, but it does not look good from the symbolic point of view.
[English]
Senator Andreychuk: I am intrigued by your comment that the oath is symbolic only. The oath is a requirement and therefore it seems to me that it is more than symbolic. We do many things in this place that are based on tradition or symbolism, but the oath is a prerequisite.
Mr. Hurley: When I said ``symbolic,'' I was talking about enforceability. In the case of the National Assembly in Quebec City, the Parti Québécois members were told that they could not take their seats unless they swore the oath of allegiance. It is a requirement for taking a seat, but what does it mean? What happens to a minister of the Crown who starts to advocate the abolition of the monarchy after he has sworn to be faithful and bear true allegiance to Her Majesty the Queen? If there is no sanction for behavioural conduct that contradicts the oath of allegiance, one must say that in terms of its substantive meaning it is largely symbolic.
Senator Andreychuk: Although the taking of the oath of allegiance to the Queen, our constitutional monarchy, is a prerequisite for me sitting as a senator, once I take the oath the enforcement of my words comes from my peers. We have a collective responsibility to ensure that those words have meaning, have we not?
Mr. Hurley: That is an interesting point. There are many cases, anecdotal and public, of members of the House of Commons stating clearly that they held their noses and took the oath because it does not reflect their views, but it was a requirement for taking their seat. As I said, a minister of the Crown who was a candidate for the leadership of his party, who therefore could have become Prime Minister of the country, was advocating the abolition of the monarchy even though he had sworn to be faithful and bear true allegiance. If he cannot be punished for violating the oath of allegiance, one must say that, in substantive terms, it is largely symbolic, but it is a condition that you must meet.
Senator Andreychuk: To take it one step further as the devil's advocate, I do not think it is contradictory to do everything you are required to do while peacefully and lawfully advocating change in the constitutional monarchy. Unless a person were flaunting the law or not doing their job, I would not find it a contradiction. You find it contradictory simply to say, ``I want to change the constitutional monarchy.'' From time to time, we have all said that we want to change the constitutional monarchy in one way or another. I do not think that makes us disloyal. If we proceeded by means that are degrading to our system or outright unlawful, I would understand your point. However, I do not see it as a contradiction.
Mr. Hurley: I do not think we are in disagreement. You are agreeing with what I said earlier, that is, that under the Charter you have the right to express your views as long as you advocate change in a peaceful, legal and lawful fashion. However, if you swear to be faithful and bear true allegiance, you have limited your possibilities. That is a limit, in principle, on your freedom of expression. I am suggesting that if you swear allegiance, you do not, in principle, have the option of advocating abolition. There is no sanction for advocating a position in contradiction to the precise words ``to be faithful and bear true allegiance.''
Let us put in the word ``Canada'' instead of ``the Queen'' — ``to be faithful and bear true allegiance to Canada.'' If you then advocate the separation of a province from Canada, in principle most people would say that you are contradicting your oath, but there is no penalty for the contradiction.
Senator Andreychuk: Was passing the Clarity Act a contradiction?
Mr. Hurley: The Clarity Act sets out the process for evaluating the outcome of a referendum in a province.
Senator Andreychuk: I think it was more than that, but I will leave it at that.
You have said that you could take this oath and comply with the existing system and that there would be nothing wrong with swearing other oaths later. I agree with that. However, do you not think it would be confusing to the public? In the school systems with which I am familiar, teachers try to explain very carefully what a constitutional monarchy is, and in the end the constitutional monarchy is Canada. If we swear allegiance to the constitutional monarchy and then later swear allegiance to Canada, will we not do a disservice to Canadians by confusing them about our system? There is already confusion. In common parlance we talk about Canada. Only political science students and a few others understand a constitutional monarchy. Would we not be adding to the confusion that already exists?
Mr. Hurley: I think we agree on everything, even where it may appear that we have slight differences. I talked about symbolism. Of course, if oaths of allegiance are, above all, about symbolism, if there are no penalties for inconsistent behaviour, having one oath of allegiance across the board at one time, however big or however many elements it includes, contributes to clarity. There is nothing procedurally or constitutionally wrong with doing it in stages and having different oaths, but I agree that it does not assist in clarity.
Senator Joyal: Mr. Hurley, listening to you this morning after so many years brings back some good memories.
I should like to go carry on with the point raised by Senator Andreychuk, then come back to section 128, and then ask a question relating to succession.
The Constitution is a coherent, constitutional architecture. It contains fundamental principles on which a structure is built, and that structure is coherent in all its parts. If we add elements to the Constitution, such as oaths, they have to be coherent within the structure, for the very reason that Senator Andreychuk has explained. We are a constitutional monarchy, and the powers are vested in Her Majesty, the executive power and the legislative power. It is Her Majesty who enacts legislation, after having received the advice and consent of both Houses of Parliament. The business of the government is performed under Her Majesty's ``direction.'' That is why there are privy councillors and ministers who take the decisions. The same is true in the administration of justice. The three essential elements of powers of the state are vested in Her Majesty. That is our structure and principles.
Throughout the years, there have been all types of readjustments. The prerogatives previously exercised by Her Majesty were passed to Parliament. We legislated some prerogative and the domain of Her Majesty with regard to prerogatives has receded. It has recently been suggested in the British House of Commons and the Lords that all the prerogatives should be legislated.
When we add an element to the structure, it must be remain coherent with the structure. If we add an oath, as I believe we can, the substance must remain symbolically coherent with the rest. I do not agree entirely with your opinion that it is only symbolic and not very important. The flag is only symbolic, but if I burn it, there are consequences. It is only a piece of cloth, but it has more meaning than merely white and red cloth.
Mr. Hurley: I do agree, and I did say that symbolism is important.
Senator Joyal: It is the way that people identify themselves with the legitimacy of the government, which is what Senator Lavigne is after.
Canada is defined in section 3 of the Constitution, and section 4 of the Constitution states:
Unless it is otherwise expressed or implied, the Name Canada shall be taken to mean Canada as constituted under this Act.
Therefore, there is a meaning, if we add an oath in the context of the Constitution, that uses the word ``Canada.''
However, as you very properly said, the powers are vested in Her Majesty personally. It is not the Queen of Canada; the oath does not say that. It says Her Majesty, Queen Elizabeth II, period. The title was changed in 1953 with the Titles Act, but the oath is a personal oath to Her Majesty. If we are to express allegiance in the context of a constitutional monarchy fundamentally as it is provided for by The Fifth Schedule, and if we add an oath to Canada, we will have, in my opinion, used the right words to express our commitment to Canada.
One is allegiance, which is to a person. Essentially it is a personal link in the context of the constitutional tradition of the British Parliament. At the beginning of the Constitution we read:
... a Constitution similar in Principle to that of the United Kingdom.
This means something. As you know, the Supreme Court has interpreted that in many decisions.
If we add ``Canada'' as the substance of an oath, we must choose the proper way of pledging our commitment to Canada. I am of the opinion that the word ``allegiance,'' as used in The Fifth Schedule of the Constitution, should not be duplicated in our commitment to Canada because it adds confusion in terms of the constitutional structure and coherence that the system must maintain. We can add an oath of service, as I have proposed, and that is a totally separate matter.
In terms of commitment to Canada and to its system of government, which is a constitutional monarchy, the terms used to pledge our commitment must be chosen with respect to the coherence of the system.
It is important to maintain coherence in the Constitution. In fact, the coherence of the Constitution with the oath is reflected by section 128 of the Constitution. Further to what Senator Di Nino's said, section 128 provides that the same oath will be taken by a member of the Senate, a member of the House of Commons, and a member of a legislative council or legislative assembly of any province. In other words, there was coherence in the definition of the domain in the original oath. It has to be everywhere in the system. Just as the Lieutenant Governor represents Her Majesty the Queen in relation to the powers exercised by the province, the Governor General represents her in the federal government. All that flows naturally in the overall ramifications of the system.
It is important to maintain that coherence in the system so that, as Senator Andreychuk mentioned, citizens who study the system and pledge allegiance to it recognizes its legitimacy and recognize that it operates on similar commitments. To me, sanctions for contravening the oath are entirely different, and they come after.
I totally agree that a minister of the Crown who is a Privy Councillor or a member of the Senate can call for a different system of government on the basis that the Constitution provides clearly how to change the system of government, even the question of the constitutional monarchy, and that is by unanimity. The Constitution itself, in section 41, provides for how to change the monarchy. A minister of the Crown who advocates changing the monarchy is using section 41 of the Constitution and is not in contravention of his oath. He is exercising both parts of the Constitution which, as the Supreme Court has said, are not contradictory. They have to be reconciled, as you know from the famous Donahoe decision.
In other words, I do not see that as a contradiction of the importance of the oath. On the contrary, the oath is essentially to respect the rule of law. In other words, if you want to abolish the monarchy in Canada, section 41 of the Constitution provides the way in which that should be done. There is an implied recognition of that.
I do not think we should see free debate in Parliament on changing the Constitution as a breach of the oath. On the contrary; we are here to provide advice and consent to Her Majesty on the way in which Her Majesty would change the Constitution if her two chambers so advised and consented.
I believe that the architecture is logical and coherent. We must maintain that coherence when we add something or when we want to complement an aspect of current political life in Canada. That is why I propose wording that would not add confusion to the symbolism, which is very important. The Constitution is full of symbolism and there is still a lot of symbolism in Parliament. The costume of the Black Rod and the Speaker is symbolism. They could perform those jobs without that dress, and we could abolish it tomorrow, but we have maintained it for obvious reasons.
That is why I think the words ``allegiance to Her Majesty'' should be kept, meaning allegiance to the system where Her Majesty presides, but we want to commit ourselves to Canada, and must choose the proper words in order not to contradict or confuse. Some may be confused by swearing allegiance to the Queen as well as to Canada. On one side of our banknotes we have the Queen and on the other side we have Canada. Which is the good side of the banknote?
Mr. Hurley: Senator, you talked about coherence, which I interpreted to mean uniformity by having the same oath throughout. Coherence and uniformity are not quite the same. You can have coherence without having uniformity.
Sections 44 and 45 allow the Parliament of Canada or the legislatures to change the oath if they so desire. The fact that none have done so does not mean it could not be done. That may end up with lack of coherence or lack of uniformity, but it is certainly consonant with our constitutional amending formula. It is possible.
If swearing to be faithful and bear true allegiance means anything, you have limited your right to act in a way that is not consistent with that. I said that you are breaking your oath of allegiance if you advocate change, but in our system we accept that we have freedom of expression. There is no penalty if, after swearing an oath to be faithful and bear a true allegiance, you decide that we should change the system.
We have become unclear about oaths of allegiance. The Acadians took the oath of allegiance seriously and paid heavily for it. They were told by the British that they had to swear allegiance to the British Crown, and they would not do it, so they were ordered deported. The oath was very important, and there were consequences for not taking it.
When you become a member of Parliament, you swear the oath without necessarily understanding what it means. No one asks whether you will be faithful and bear true allegiance. We are all saying the same thing. It is very important symbolically, but if you act in a manner inconsistent with what you have sworn and there are no consequences, and perhaps understandably so, you can end up advocating change.
It is clear that if you swear to be faithful and bear true allegiance, you are in principle limiting your capacity to act in any other way. However, that is not the way it works in our system. I do not criticize that, but it should be clear that the oath is your union card that allows you into the legislature. However, once you are in the legislature, you can advocate things that are inconsistent with what you have sworn.
Senator Joyal: I do not dispute that. As I said, section 41 explains how to change the monarchy in Canada.
Mr. Hurley: I agree. I am only saying if you have sworn on a Bible that you will be faithful and bear true allegiance and then decide that you do not want to be faithful or bear true allegiance, that you want a new system, for which the Constitution provides, you are contradicting what you swore to. That is quite feasible. It happens in our system, and there is no penalty for it. It is very important symbolically, but there is no penalty for acting in a way that contradicts the substance of what you have sworn to do.
Senator Joyal: There are penalties if you are found guilty of treason under the Criminal Code. However, section 41 of the Constitution of Canada sets out an option to change the constitutional status of the Queen in Canada. That is done by unanimity, which, as you well know, also applies to the number of members of the House of Commons and the use of the English and French languages.
However, at a certain point, transgression of the oath becomes the crime of treason. If you are guilty of treason, you have gone beyond the freedom of expression provided for under the Constitution, and there are sanctions for that. Treason, according to the definitions in the Criminal Code and the jurisprudence, is more than contravention of the oath.
Mr. Hurley mentioned section 128 of the Constitution. Section 128 provides the same oath for the Senate, the House of Commons, and the provincial legislatures. An opinion has been expressed that, since this section of the Constitution deals with both the provincial and federal legislatures, the concurrence of the provinces would be required under section 43 of the Constitution.
Mr. Hurley: Senator Joyal, you can get lawyers to argue any position on any issue, as you well know. When people in the Department of Justice want to win an argument, they say, ``But the better view is...''
One could argue that this is very closely tied to sections 44 and 45, which deal with the capacity of Parliament acting alone, by legislation, to change the Constitution of Canada with respect to the executive government of Canada, the House of Commons and the Senate. It is a membership rule. Similarly, the provinces could act in the same way.
Senator Joyal: When the issue of the oath was raised in the Senate, our colleague Senator Murray, who was an important player in the negotiation of Meech Lake, raised the question of whether the concurrence of the provinces is required under section 128. He said that if the oath could be changed by a mere resolution of the Senate and the House of Commons, it might have been done before now.
Mr. Hurley: I do not think that people have focused on this before.
I took a glance through Peter Hogg's third edition before coming here. It is a thick volume, but I could find nothing on the oath of allegiance. One of the leading authorities on the Constitution of Canada did not think it worth mentioning the oath of allegiance. I personally was raised very strictly to honour what I have sworn to do, but I have spoken to senior constitutional authorities in Canada who say that oaths are not taken very seriously. If Peter Hogg, in an enormous volume covering all aspects of the Government of Canada, has not deemed it important to clarify the issue of section 128, I would suggest that people have not focused on the issue.
As you know, you can make any argument for any case. If you challenge it before the Supreme Court of Canada, it is the court that will decide whether it is amendable by Parliament acting alone with respect to its application to Parliament, or by any province individually with respect to its application to that province. That is a matter that would ultimately have to be tested before the Supreme Court.
[Translation]
Senator Lavigne: Senator Andreychuk raised the point about confusion. On the day that I was sworn in as senator, I pledged an oath to the Queen and to my country, Canada. The next morning, Senator Murray contested my swearing in because I had taken an oath of allegiance to my country, Canada. The galleries in the Chamber were overflowing with people, the clerks were in their seats signing papers and overseeing my swearing in. How is it that no one noticed that I had sworn allegiance to my country, Canada. Yet, all the people present applauded. How is it that over the course of one year, I received 551,000 e-mails and letters from people across Canada, among which approximately 350,000 e-mails and letters came from Quebec — a province some would label separatist — these e-mails and letters were signed by people who were proud to see that I had taken an oath of allegiance to the Queen and to my country, Canada. Of the 551,000 people who wrote me, only one person said that mention of the Queen should be eliminated. Only one. I am convinced that had I continued counting the number of e-mails and letters that I received over two years, more than one million people would have told me to what extent it was extraordinary to pledge allegiance to the Queen and to her country, Canada.
I would not change absolutely anything about the Constitution. The issue seems to be about the Constitution. Such is not the case at all; the issue is about the rules of the Senate, which we want to amend by adding section 135.1. I want to know what this add-on would change; senators come here to serve a country they call Canada. When the Prime Minister appoints senators, he asks them the following, ``Would you like to serve your country, Canada?''. He does not ask them, ``Would you like to serve Queen Elizabeth II?.''
When I was appointed to the Senate and when I took an oath of allegiance to Queen Elizabeth II there was no mention of my country in my swearing in. I find that troubling. My question is the following: In your opinion, how is it that 551,000 people have written to me about this subject? Why do we complicate things when it could be as simple as taking an oath of allegiance to my Queen, and my country, Canada? Why complicate things?
Mr. Hurley: Senator, you underscore the importance of symbolism. If so many Canadians supported you, that means that this issue is important to Canadians. From that symbolic point of view, it is considered very important. We talked about consistency in our constitutional arrangements; nothing is preventing the Senate from building into its rules an oath of allegiance to Canada. In principle, one can pledge allegiance to one's province, as well as one's country, as senators represent the provinces. Members of the House of Commons represent citizens in their ridings. We can do all sorts of things.
I believe that Senator Joyal is slightly concerned about consistency; it is a matter of setting out the things to be included in the oath of allegiance, the Constitution, the Rules. As I said in my presentation, symbolism is important for Canadians. In the case of senators from Quebec, they not only represent Quebec, but they also represent an electoral district, in the province of Quebec.
Senator Chaput: When the Prime Minister called me two years ago, to ask if I would agree to serve in the Senate, the Prime Minister at the time, Mr. Chrétien, asked me if I would agree to serve my country. I came to the Senate to serve my country, Canada. I have no difficulty pledging allegiance to the Queen. It is part and parcel of who we are, our Constitution, our history. I have always been respectful of those things. To my mind, we would be adding something special that I personally would find moving if we were to create the possibility of taking an oath of loyalty to Canada.
If I understand correctly, you are telling us this morning that it would be possible to do both. Is that correct?
Mr. Hurley: Yes. When I gave my presentation, perhaps I was not so clear when I said that Canada was not a sovereign country in 1867, it was a group of colonies. Therefore it was clear at the time that the only oath of allegiance possible was to the monarch, who was head of the empire, and the Crown had power over the colony. But Canada changed, it is now an independent country. We repatriated the Constitution, we have a flag, and a national anthem. These are all very important symbols of progress in the evolution of our country. If we want to add other elements to the oath of allegiance today, it simply reflects the country's transformation over the years.
[English]
Senator Milne: Mr. Hurley, I found your presentation this morning very interesting, and I will review the transcript of it. It is important for us to keep your reasoning in the back of our minds. However, I believe that your argument that a minister of the Crown who advocates getting rid of the monarchy is inconsistent with his oath is in itself inconsistent. This morning sections 41, 42, 44, 45 and 46 of the Constitution have been quoted. Why would those sections have been included in the Constitution originally unless it was contemplated that members of Parliament have freedom of expression on the matter of the monarchy? It seems to me that as per your reference to the meaning of the oath, those sections are redundant and should not have been included in the first place.
Mr. Hurley: That is a good point and is similar to Senator Joyal's point. I will return to my initial remarks. In 1867, Canada was a reorganization of the three colonies — the union of Upper and Lower Canada with New Brunswick and Nova Scotia — and the oath of allegiance to the sovereign was put into the Constitution at that time. We have evolved since then.
The freedom you speak of was established in the Constitution in 1982, not that long ago, and it does put a new gloss on the way we behave. All I was saying is that the Constitution provides that you can swear an oath that is quite clear in terms of what you are swearing and then advocate doing away with the institution.
Senator Milne: If you can do it, you have to be able to talk about it.
Mr. Hurley: Precisely. The only reason I emphasis that is that if you put in an oath of allegiance to Canada, you must understand that a separatist who is elected on the platform of the break-up of the country will swear the oath having no intention of being loyal to Canada. You must accept that the Constitution provides for the freedom of expression. I only wanted to clarify the issue of behaviour that seems to contradict what you have sworn to in an oath.
Senator Milne: We have had Her Majesty's Loyal Opposition wanting to break up the country.
Mr. Hurley: That is precisely my point.
Senator Milne: You do say that this can be done within the Rules of the Senate?
Mr. Hurley: Yes.
Senator Milne: This can be done with no problem whatsoever within the Rules of the Senate. We then return to Senator Joyal's point about coherence and the whole system fitting together.
Mr. Hurley: Yes. As I mentioned in dealing with Senator Joyal's comments a moment ago, there is a difference between coherence and uniformity. If the House of Commons did not adopt the same procedure, there would be asymmetry between the obligations to take oaths in the two houses, but there would not necessarily be incoherence.
Senator Di Nino: My earlier question dealt with specifically that point. Are you saying that it is not necessary to have the consent of the provinces of the other House of Parliament in order to change the oath of allegiance?
Mr. Hurley: Are you asking whether different jurisdictions could have different regimes?
Senator Di Nino: Yes, that is the question.
Mr. Hurley: Senator Andreychuk was worried about the symbolic value for teachers and people who are trying to inculcate young people into the political values of our political system. If you had different oaths in the different jurisdictions, including the two Houses of Parliament, it would become difficult to inculcate youth into a coherent vision of their country.
Senator Di Nino: In your opinion would our Constitution would allow that?
Mr. Hurley: In my opinion, although lawyers may disagree, sections 44 and 45 would provide for that possibility. For example, Nova Scotia could amend the application of section 122 to have an oath of allegiance to the province or people of Nova Scotia.
Senator Robichaud: This is provided they respect the Constitution and swear allegiance to the Crown?
Mr. Hurley: In principle, you could abolish the oath of allegiance to the Crown and substitute something completely different. As we have just discussed, the Constitution is amendable. The Constitution sets up rules for amending the Constitution. If the oath of allegiance is subject to section 44 with its application to Parliament and section 45 with respect to its application to the provinces, they could abolish the oath of allegiance to the Crown or to the Queen and substitute an oath of allegiance to Canada. I am not advocating it and, to my knowledge, no one is at the present time.
However, under the logic of having a Constitution that is amendable, with procedures for the amendment of it, it is possible to do away with it and substitute something else.
Senator Robichaud: Yes, but there are conditions to amending the Constitution. A province cannot amend it on its own.
Mr. Hurley: I believe that sections 44 and 45 are held by many people to be the operative sections of the amending formula.
Section 44 reads:
Subject to the 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 the House of Commons.
We are talking about a condition for membership in the House of Commons or the Senate. It is not something that deals with the distribution of powers. It is not related to the office of the Queen in a direct and real sense. Therefore, it is argued that it comes under section 44.
Section 45 reads:
Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.
The only thing they cannot change, which goes back not to coherence but to uniformity, is the position of lieutenant governor. With that one exception, the provinces can amend their constitutions. If this is a condition for taking a seat in the provincial legislature, it is argued that it comes under section 45, unilateral action. A province could say that section 128 is hereby amended to remove the existing oath of allegiance and substituting something else.
Senator Andreychuk: I am still somewhat confused, because the more we talk, the more options we have. If we exercised the option in this section to change our Constitution in a way that would only affect the Senate, we could change the oath to one of allegiance to Canada.
Mr. Hurley: Yes.
Senator Andreychuk: However, that is not what is being proposed, as I understand. We are somewhere between keeping what we have, for all the reasons stated, and adding another oath. That is where I get confused. If we wanted to swear allegiance to Canada rather than to Her Majesty, we would have to define Canada. However, if we want to continue to swear allegiance to Her Majesty in addition to swearing allegiance to Canada, I am concerned that confusion will arise.
When I swear allegiance to the Queen, to me it follows that that is my commitment to Canada. However, if you are going to swear allegiance to the Queen followed by an oath to Canada, and perhaps make it optional, what would Canada be in that case, and what is Her Majesty's oath?
Mr. Hurley: Those are good points, senator. Canadians can be dual citizens, so you can already have dual oaths of allegiance. To avoid having a dual oath of allegiance, one to the sovereign and one to the country, the second oath could be an oath to uphold the Constitution of Canada, which includes the Charter of Rights and Freedoms, the monarchy and even the mechanism for changing the Constitution, which is the amending formula.
Senator Andreychuk: How do you define ``Canada''?
Mr. Hurley: If you say ``the Constitution of Canada,'' it is included in the Constitution Act, 1867.
Senator Andreychuk: We have been using the term ``Canada'' for at least an hour. What do you mean by that word?
Mr. Hurley: That is a moot point, and it will get messy if you try to include a complicated definition. An oath of allegiance is largely symbolic and thus should sing, fly and take flight on its own wings, so to speak. If start defining the terms, you have missed the point. Go for something that flies on its own and appeals to the hearts and minds of Canadians. The moment you get technical and legalistic and define your terms, it is no longer a symbolic oath. You will be getting into something where you should be providing for sanctions for lack of respect for what you are swearing to.
Senator Joyal: The question has been raised in this debate of whether senators or members of the House of Commons need to take a new oath of allegiance when the successor to Her Majesty is crowned. What is your opinion on that? Do we continue to perform our duties under the oath of allegiance in The Fifth Schedule, or should we be called upon to take another oath?
Mr. Hurley: That is a very interesting point, senator. In principle, if you take an oath of allegiance to the sovereign, it is not just to the person but the institution. As with so many things, you could argue both sides of the coin. One is that when you have sworn your oath of allegiance to the Queen it is to the institution of the monarchy, and if there is a change in monarch, the oath carries on.
I do not believe that in 1952 members of the House of Commons and the Senate swore a new oath. That would certainly be the precedent. If members did not swear a new oath in 1952, you could make the argument that once you have sworn to the monarch, it is to the monarch as an institution and includes their successor.
Under ``Oath of Allegiance'' in The Fifth Schedule it says:
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.
So there is the notion that there is continuity.
Senator Joyal: There is no doubt that there is continuity in the note. However, I raise the question because some are of the opinion that to sit constitutionally members should retake the oath with the Clerk of the Senate or the House of Commons. Perhaps it would be worthwhile to check what is happening in Westminster.
Mr. Hurley: As I said before, the oath is a union card to take your seat. Once you have taken your seat, you have it. Your seat cannot be taken away just because there has been a change of monarch. People are confused about what the oath actually means. You swear specific words, but its purpose is to take your seat in the institution. Once you have it, it is yours; run with it. I do not mean to be sarcastic or flippant, but it seems to me that once you are in the Senate, you do not have to take another oath. It is a moot point and it is worth looking into.
The Chairman: Our researcher is taking note. You might also check in 1936. There were two then, both since the Statute of Westminster, one in January and one in December.
[Translation]
Senator Robichaud: In the briefing notes that we have received, it is mentioned that section 128 of the 1867 Constitution Act provides for members of a provincial legislative assembly to take an oath of allegiance, as stipulated in annex five. Quebec is the only province that requires its members to pledge an oath of loyalty to its people, in addition to the oath contained in the 1867 Constitution Act. You seem to be saying that a province can change its oath and not be bound to section 128?
Mr. Hurley: Application of section 128 to a province can be amended by the provincial legislature.
Senator Robichaud: That would mean then that the Constitution of the country would no longer be complied with. There is a formula, and it is very specific. That is where you lose me.
Mr. Hurley: The formula to amend section 128 can be found in sections 44 and 45. The Parliament of Canada may amend the application of section 128 to the Parliament of Canada through an act of Parliament without necessarily having to consult the provinces, and any province is free to amend the application of section 128 under section 45, without necessarily having to consult other provinces or the federal government.
The Parliament of Canada has the ability to amend the Constitution by way of sections 41 and 42 and the provinces' power to amend their own constitutions is provided for in section 41. Therefore, provinces cannot change the lieutenant-governor's responsibilities, but provinces may amend the provincial constitution. The goal of the oath of allegiance is to establish a condition allowing one to take his or her seat in the assembly of a provincial parliament.
Senator Robichaud: I understand that very well. It will take me a while to absorb all that.
Mr. Hurley: Symbolism is important. The Government of Quebec changed the name of its legislative assembly, and it is now called the Assemblée nationale. In Newfoundland, the legislative assembly is called The House of Assembly. The name of a legislature varies from one province to the next. Provinces may have different terminology because of their ability to amend their provincial constitutions.
[English]
The Chairman: There are four different versions.
Senator Joyal: A province can decide to call their house a ``house of the provinces,'' or ``house of the province of,'' but that does not change the Constitution Act, 1867 or 1982. If they want that change to have meaning in the Constitution of Canada, that would have to be changed in the Constitution of Canada. As long as the text of the Constitution of Canada applies to Canada, the name of the national assembly of Quebec is the legislature of the Province of Quebec. That is the constitutional name. Otherwise, any province could make any change without resorting to the amending formula.
Mr. Hurley: The one thing a province cannot do is change the office of the lieutenant governor.
Senator Joyal: I agree. However, section 128 speaks of the legislative assembly of any province. The constitutional name of a provincial legislature is the Legislative Assembly of the Province of Ontario, Quebec, Saskatchewan, et cetera. A province can decide internally to call it the national assembly, but the constitutional name of the legislature is the Legislative Assembly of the Province of Quebec.
Mr. Hurley: Senator, one could argue that is a generic name to apply to all provinces, but is not necessarily the formal name in any one province. If the name is changed to ``National Assembly'' or ``House of Assembly,'' that becomes the formal designation for the institution, but generically the institution is a legislative assembly. In other words, this does not say ``the Legislative Assembly of Ontario, Quebec, Nova Scotia,'' et cetera. It is only ``legislative assembly,'' which we know is a generic term, as opposed to ``legislative council,'' which was a generic term.
The point is that constitutional amendment resolutions adopted by the provinces are formal constitutional documents. If the province expresses its consent to an amendment using the name ``National Assembly'' or ``House of Assembly,'' one is accepting the constitutional right of the province to designate its legislative assembly by a particular name. However, that is not terribly important.
Senator Joyal: Internally they can do that.
[Translation]
Senator Lavigne: In the motion I tabled, it reads —
[English]
— after taking their seat; after swearing to the Queen.
[Translation]
They were mistaken. Senator Andreychuk is right. They have to take their seat and come back...
[English]
— swear to Canada. It looks like some people do not know what they are doing. After swearing to the Queen, you swear to Canada, but you do not go to your seat. It is better than taking your seat and coming back to swear allegiance to Canada, which would not look good.
[Translation]
Senator Robichaud: When we look at section 128, all members of Parliament must swear allegiance to the Queen by swearing what is set out in the fifth schedule of the act. People who do not do so are in no way authorized to sit or to vote in Parliament or in the provincial legislative assemblies of Canada. What you are telling us, is that a provincial legislature can change the formula by which these persons become members of that provincial institution. Section 128 is not interpreted in the same way as I see it before me because it goes on to say ``...as a result of section 128, only those persons who have sworn or affirmed their allegiance are able to hold office in a legislature.'' That seems to contradict what you have stated, which is to say that under sections 44 and 45, the provinces could unilaterally change the oath.
Mr. Hurley: The way to establish the conditions for sitting in a legislature is an internal question for each of the legislative assemblies. For example, Canada could, through federal legislation, concur in an insertion stating that an oath of allegiance to the Queen must be sworn, as well as an oath of support for the Constitution of Canada. That would be a unilateral change.
Senator Robichaud: Now you are adding to that.
Mr. Hurley: As soon as you accept the possibility of changing to add something, you are accepting the principle that you can make changes.
Senator Robichaud: Not make changes, but add something.
[English]
The Chairman: On behalf of all members of our committee, Mr. Hurley, I would like to thank you very much. This has been very helpful. We appreciate your appearance and I am sure you will follow what we do with interest. We will keep you informed.
Senators, we will meet tomorrow at our regular time in our regular place.
The committee adjourned.