Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 5 - Evidence - Meeting of November 15, 2005
OTTAWA, Tuesday, November 15, 2005
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:35 a.m. to consider an oath of allegiance to Canada.
Senator David P. Smith (Chairman) in the chair.
[English]
The Chairman: Honourable senators, the business before us this morning relates to the motion that was originally presented by Senator Lavigne, that the Rules of the Senate be amended by adding, after rule 135, the following: “Every senator shall, after taking his or her Seat, take and subscribe an oath of allegiance to Canada, in the following form,” et cetera. Since then, we also have two amendments, one from Senator Day that “shall” be changed to “may,” and another one from Senator Joyal. I believe that our witness this morning is probably familiar with that. I will say a few words and then ask Senator Joyal to introduce the witness, because they are well acquainted.
Father Jacques Monet is the president of Regis College in Toronto and also a prominent Canadian historian. I live about three blocks from Regis College, so I walk by it every now and then. I will have to cross from now on in a Baptist way. Father Monet has written numerous scholarly articles in both English and French, and he has contributed entries to the Dictionary of Canadian Biography and the Encyclopedia Britannica. His books include The Last Cannon Shot: a Study of French Canadian Nationalism, The Canadian Crown, and La première Révolution tranquille. He has also been an on-camera narrator on CBC television on several programs, and he has produced and authored 16 lectures on the lives of Canada's Prime Ministers, which were aired in French on Radio-Canada in 1982. Welcome to our committee. We appreciate your coming. We invited several witnesses, and a few of them, who were prominent constitutional authorities, did not think they had any wisdom to give us, but we also have Professor David Smith, my namesake, coming. I think that between you and Professor Smith, we will get a balanced background.
Senator Joyal, do you have some comments to welcome our witness?
Senator Joyal: I have to declare my personal interest because when I was Secretary of State many years ago, I had the opportunity to call upon Father Monet to give the Secretary of State advice on the protocol, so I have known Mr. Monet for a long time.
The only other element I would like to add is that Father Monet is a specialist in the history of Canada in the middle of the 19th century especially, which is at the period of the famous La Fontaine-Baldwin duel. He has written the key reference work on the evolution of Canada from a colonial government to a responsible government. We have had debates on other occasions on that, so I wanted to add that, besides the fact that Mr. Monet has been a board member of the Historic Sites and Monuments Board of Canada for many years.
The Chairman: None of your disclosures constitute a conflict of interest, so you can still participate in the discussion.
Senator Joyal: Thank you, Mr. Chairman.
The Chairman: Professor Father Monet, the floor is yours. We look forward to your comments. We will certainly have a question and answer session. Please proceed.
Father Jacques Monet, SJ: Thank you Mr. Chair. In case I am accused of being here under false pretences, I must say I am no longer president of Regis College. I was a while ago, doubtless at the time when whatever reference you were looking at was printed, but I have not been now for several years. However, thank you for the reference. As you pass in front of it, drop in some time. I am still there.
[Translation]
It is a great honour for me to be here this morning. Thank you for inviting me to appear before the committee. I hope that my brief remarks will help you tackle the thorny question before you for your consideration.
[English]
If I may be allowed a personal note, the last time I met a committee of the Senate, it was a committee chaired by Senator John Connolly in 1975 that discussed the themes that could be illustrated in the clerestory of the Senate chamber. We had a fantastically interesting discussion about these themes and about what could be reproduced in those windows. Here we are 30 years later, and the windows have not changed. I hope that the discussions we have today might bring results more immediately than what happened in 1975. It was, however, a wonderful experience for me to be part of that.
The best thing this morning is to plunge right in. I have a few remarks that I will make briefly so that we might be able to have an exchange or questions and answers, or at least attempts at answers. I would like to say something as a historian of constitutional history as well as political history, about the oath of allegiance to the Queen, the role of the Crown in Canada's constitutional structure and what I consider to be the uniqueness of the Canadian Crown.
I see and I have read that you have been discussing the notion of allegiance, that is, the duty and obligation of loyalty. You have referred to the Oaths of Allegiance Act and to the Citizenship Act, and you have looked at what is done in the other countries about oaths of allegiance. The reaction of this historian is to underline that from the first coming of European settlers in this part of the world, and therefore throughout every moment of Canadian history, our Canadian allegiance has always been to a person, whether the King of France or the King or Queen of England or Great Britain. Our ancestors knew no other form of allegiance. Certainly, when given the choice, they very definitely and loyally defended their allegiance.
In a monarchy, whether a constitutional monarchy or not, and we have always been a monarchy, the allegiance is to the sovereign. The allegiance to the sovereign is a reciprocal obligation. It is an allegiance to a person. The Queen herself, speaking in Toronto some years ago, defined it as “the personal and living bond between you and me.” Because of our allegiance, we have civic duties and obligations, and, so by her Coronation oath receiving that allegiance, the Queen has duties towards us. More even than her Coronation oath, her oath of accession on the very first day that the sovereign becomes king or queen enumerates the sovereign's duties towards their people.
In our system, and in that system of constitutional monarchy, there is only one allegiance. It is in the nature of the concept of allegiance in that system that there is only one. We cannot serve two masters, to coin a phrase. Therefore, the Crown plays a critical — I would even say essential — constitutional role in what we refer to now as the Westminster model of parliamentary democracy. This model is the constitutional structure that our forebears fashioned into the Canadian reality we now know today in which the sovereign is the embodiment of the nation, and from her flow all the power of law and order, of peace, order and good government. That is parliamentary structure and the Canadian reality that we know today. The Queen, the Crown, is the unifying principal, the fountain and origin of all three branches of Parliament. The principles behind the Westminster model flow from that concept.
Other constitutional models, for example, the American one, the French one or others in other countries, have different principles that flow from that. The concept and the principle of the separation of powers, which the Americans see as their main bulwark against autocracy and against arbitrary power, is not a principle that is part of the Westminster model. The powers of the state in our model are unified and not separate. They are unified because they all flow from the one crown. We have a principle, which is the principle of responsible government, which the Americans, for example, know nothing about and cannot understand.
If I may be allowed a personal anecdote, when I have talked about Canadian political and constitutional history in the United States, the students have tremendous trouble with the idea of responsible government — that the Prime Minister is in the legislature and is responsible to the legislative body — because it is totally foreign to their system. When I was invited some years later to offer lectures and courses in France, I thought, these are all foreigners and they will not understand responsible government, so I better spend some time on this. I prepared to do so. They got responsible government just like that, because, of course, they have a distinction between the head of state and the head of government, and they had no questions about that at all. However, they could not understand the federal system. “You mean to say you have two governments at the same time that overlap each other. How can you do that?” They do not know anything about a federation. The Americans have no problems with federation because they are a federal union.
We are the first country to combine the monarchical system and the Westminster model with a federal government, and that makes the Canadian Crown very different from the Crown of Great Britain, for example, and other Crowns. The principles that flow from the constitutional structure take their meaning and life from the way the structure and history have evolved and formed the Constitution for us.
We have a constitutional system. We have unified and coordinated powers. We have responsible government. We know the system that distinguishes between the headship of the state and the headship of government.
In that model, the Crown plays an essential role. In Parliament, the Crown represents all the people. The government represents the majority in the House of Commons, and sometimes the majority in the whole population. In any event, the government represents the majority. The Crown represents not just the majority but all the minorities as well.
When the Crown, or representatives of the Crown, give Royal Assent to a law that has been passed by the majority, they are saying that all the minorities in a country that follows the rule of law realize that the majority rules. They accept this law that comes from the majority, hoping that, perhaps, some day they will be the majority and will reverse it, if they do not like it. However, they agree to the rule of law. What is said when there is Royal Assent is that everybody assents to this government measure.
In the legislature, the Crown plays that unifying role, which is a unifying role, too, obviously, between the Senate and the House of Commons.
As we all know, in the executive it is the prerogative of the Crown that is the strength of the Prime Minister's office. In the judiciary, in which the Crown is the fountain of justice, judges are appointed in the name of the Queen to decide on and interpret the bills that have become law by Royal Assent.
In this context, not only the judges but the executive, the Prime Minister and the cabinet, all the members of both Houses of the legislature, take the same oath of allegiance. They are unified under the Crown by that same oath of allegiance.
Again, the Crown is the unifying principle to all branches of government. I guess the oath of allegiance in that context means, “I believe in the coordination of all three powers of government dedicated to serving the country.”
I know you have discussed the meaning of the oath of allegiance, which is much richer than the exact words, “I pledge faithful allegiance to Queen Elizabeth II,” and so forth. There is meaning behind those words. In this context, I suppose the meaning is, “We believe in the coordination of powers. We also believe in the dedication of all these people who take the oath to serving the country,” which is what the Queen is dedicated to, “and serving all the people in the country, not just the majority.”
All these people, whether they are the judges, the legislators or the executives, come to office by taking that oath of allegiance. That is one role of the Crown.
Another role is this unifying role of the Crown which unites the three powers of government. We share that with other countries whose democracy and constitutional structure follows, as we do, the Westminster model. There is another one to which I referred a minute ago that makes the Canadian Crown unique. I refer to the fact that our Crown is the unifying principal of the federation. There is one Crown and the sovereignty of that one Crown is exercised by different people over different subjects.
The British North America Act, or the Constitution Act, 1867, enumerates the subjects of which the federal government will take care. It also enumerates the subjects for which the provincial governments will take care. It enumerates the subjects that are common and so forth.
That shows the division between the federal government and the provincial governments, their responsibilities and their autonomies. At the same time, they all pledge allegiance in the same words. As you well know, the words are in the Constitution. The same oath of allegiance is taken by all governments, by all members of the executive, by all the legislatures in all 10 provinces, as well as in the federal government. Again, the Crown is the constitutional link between the federal government and the provinces. That is why in 1982 it was decided that it would take unanimous consent to change anything that affected the office of the Queen, the Governor General or the lieutenant governors. Canada's is a unique situation. We were the first in the world to have a federal monarchy. Later, the Australians and the Union of South Africa imitated us. It was not exact, but they took their inspiration from what had been done in Canada.
In Canada, the Crown is represented by 12 people. They are the Queen, the Governor General and 10 lieutenant governors. It is a team that represents the sovereignty of the Crown in this country.
You have talked about symbols. For many people, these symbols are quaint rituals, or even empty ones. I know it has been said here because I read some of the discussions you have had. In fact, symbols are very powerful. They express precious realities, often sacred realities. The flag Canadians carried over Vimy Ridge, the unknown soldier, Christmas presents and engagement rings are symbols. However, they reflect and express true and strong realities. The national anthem is a symbol. At the head of our state we have a team of people. In my view, Canada is much too rich in experience and much too constitutionally complex a country to be represented by a single symbol.
A good example of that is when the Canadian flag was proclaimed in 1965. Within two years, eight provinces that did not have flags all decided on a provincial flag. Because one Canadian flag was not enough to express their reality they had to run up a provincial flag next to it. That is one example. However, there are many other examples such as that where it takes a multiplicity of symbols to express the Canadian reality.
There is a uniqueness to the Canadian Crown in the way it is represented and in the way, especially, that, constitutionally it is what unites in the Constitution the federal government and the provinces. Again, the oath of allegiance that is taken by all the people in this system means that it will promote the integrity and unity of this country.
We all take exactly, word for word, the same oath of allegiance, even though there are all different autonomies in the way in which our allegiance is expressed.
That is something we need to reflect on when talking about changing the oath of allegiance. It is something for the lawyers to decide, if not the Supreme Court, whether it belongs to the prerogatives of each of the Houses, the Senate or the House of Commons, to change its oath as a question of internal practice. The other thing to reflect on is that it is in fact something that touches the Crown and has an essential link to the role of the Crown in this country and therefore to the office of the Queen, the Governor General and the lieutenant-governors. You can see from what I have just said what side of that question I am on, but it is something that needs to be thought through.
As a footnote, it might be argued that since 1982, when there has been an amending formula, and with the patriation of the Constitution there is a written document that gives procedures and so forth about the role of the Crown, that constitutional document is what binds the provinces together rather than the sovereignty of the Crown exercised differently by these different representatives. However, I am willing to argue, and it would be a long argument here this morning, that the document does not bind the provinces together. It is still the Crown that binds them together because, as the Supreme Court decided at the time, it did not take unanimity of the provinces to bring home the Constitution; it took an important majority, which ended up being more than seven provinces, if I remember correctly.
Again, it was not on the basis of provincial autonomies that the patriation was done, as most of us remember.
I think it is still safe to say that sovereignty of the Crown binds the provinces together into this country with the federal government.
When we touch the oath of allegiance we should be careful. It may be a symbol in the minds of many people, and it is a symbol, but the reality it symbolizes is one that has been costly. It is one that thousands of our forebears have sacrificed and died for. It is about the freedom and integrity of this country and what binds us together.
I am not blind and deaf yet, and I am not insensitive to the thousands, if not millions, of Canadians who do not understand the structures and principles of our institutions and our Constitution. Many do not understand, and for many the Queen is the Queen of England, which is a title, by the way, that has not existed since 1801. In all events, considering the Queen as the Queen of Canada is something that is either difficult for them or of which they are ignorant.
Coming from the university world, I must say that school and university textbooks are woefully irresponsible, if not ignorant, in their treatment of Canadian constitutional history, and of civics and matters related to them. I know there is a crying need for an affirmation of Canada, and to affirm our loyalty and love to the integrity of the country that is the gift we have received from our ancestors. My own conviction about our constitutional monarchy is that we do not celebrate it enough. Especially, we do not take seriously enough the role of the sovereign in the team of people who are at the head of our state and who represent the Canadian Crown, which is a unique Crown.
By not celebrating enough the hereditary part or the sovereign in the team, we deprive the institution at the head of our state of an aspect that appeals to our best values. It calls for, as I said at the beginning, an allegiance to a real person who reminds us that our traditions and ideals are not disembodied principles, philosophy or a set of abstract political principles, but that our traditions and ideals are the result of the work and sacrifice of real people who were born, lived, died and passed things on to us. Because the Queen is there by hereditary right, the sovereign expresses the continuity and creates the community. Because she has ancestors and descendants, she gives recognition to our ancestors and affirms our descendants.
[Translation]
“Continuity helps to shape great nations”.
[English]
That was said by Ernest Renard. This continuity is what is expressed in that member of the team. It is not symbolized in the same way in the office of Governor General or lieutenant-governors because they are transient characters. They are not there because of their ancestors and because of the assurance of their descendants. That element in the monarchical system that we have in the parliamentary monarchy and constitutional monarchy is neglected when we neglect the role of the Queen in the team. Because she is there over the years, she can appeal over a period of time to the ideals of honour, duty, caring and generosity that are all part of her oath of office and of the immortal dignity of the human person. Because she lives outside the country, which is a problem for many people, she reminds us that our institutions have their roots outside our country and go back to very long ago. In that sense she expresses a transcendence in our country that our values overflow our borders, or, if you will, that there is something spiritual and transcendent in the forming of civic community.
I think of what the Queen herself said in Quebec in 1964.
[Translation]
“The role of a constitutional monarchy is to personify the constitutional state.”
[English]
Again, this might come up in discussion when we talk about the possibility that people can take their oath of allegiance to the Queen and still advocate the break up of the country, her declaration again in Quebec in 1964.
[Translation]
“I do not wish for any of my peoples to be thus constrained”.
[English]
Again, that is part of that overarching and transcendent view of political and constitutional reality that we need to be reminded of and that only the sovereign can do.
When we swear allegiance to the Queen, we witness that reality as well. That is why I say that is something we should do with care and caution as we discuss it. That is a good place for me to stop.
The Chairman: I sense that we have here a purist approach. I am approaching this with an open mind. I would characterize myself as someone who believes in and supports the monarchy, but I am not a fanatic. I have never joined the Monarchist League. My instincts tell me that when the current incumbent is no longer on the throne, a lively debate will occur. I do not really know what the outcome of that debate will be. Mind you, if she lives as long as her mother, that is many years off, and I think it would be great.
Many Canadians do not relate to a non-Canadian person as head of state. I was the person who got the bill through one Friday afternoon to change Dominion Day to Canada Day, much to the annoyance of Erik Nielsen. I know the roots that ye shall have Dominion from sea to sea. I was intrigued that no man can serve two masters, “Choose this day whom you will serve,” I think that is the King James version. I better look up the Catholic one. You referenced touching, and I remember another verse from my Sunday school days that says, “touch not the Lord's anointed.”
Is it all or nothing? Is there middle ground? I truly have an open mind on this. Is what Senator Lavigne suggested, and amendments suggested by Senator Day and Senator Joyal, incompatible with your characterization of the sanctity of the monarchy as all or nothing? Can some gestures be made?
One reason I was keen on changing Dominion Day to Canada Day was that there were many Canadians who did not come from all British stock, from which I came, who did not identify with that. Yet they can all identify with Canada Day. Is there some similarity here in terms of the nuances behind these delicate questions?
Father Monet: Canadians have been good at adapting these institutions and finding Canadian solutions to them, as we did with the federal system. We used the monarchy to be the principle that binds the provinces together.
The question before you is: How do we express something that is clearly, in the minds of people, a Canadian concept or a loyalty to Canada with the present text of the oath of allegiance? There is a way in which we are bowing to a certain amount of ignorance because the Queen is the Queen of Canada. The Canadian Crown is a different Crown from the Crown of Great Britain; there is no doubt about that.
What is important is that, in making changes, we respect not only the constitutional order, but the principles of the constitutional structure that we have, and not to create a body or a formula in this case that is not compatible with the rest of the system.
I read some of the proceedings of this committee in the last few months. There have been suggestions of having a second oath, which could be like an oath of office that people would take to defend the integrity of Canada and to promote Canadian interests. The wording of the second oath would need to exclude the word “allegiance.” Allegiance in our system is to a person. The sovereign's role in the team of people at the head of our state is to bring out that personal connection, that personal reality in our Constitution. I would be wary to change that.
The Chairman: The word “allegiance” sticks for you. As you know, the Senate by itself cannot change the Constitution.
Father Monet: That is another practical thing, too. If the courts, for example, decide that it is a constitutional amendment that requires unanimous consent, it will not happen.
The Chairman: No, we appreciate that.
Father Monet: It is better to find another way to proclaim our attachment to Canada and our determination to defend its integrity.
Another suggestion was that when senators or members of the House of Commons take their oath of allegiance, the Speaker or the clerk would read to them, or welcome them with, an explanation of the meaning of the oath. The emphasis would be on loyalty to Canada and the importance of defending the country and its integrity. Gradually, people will get it into their minds, if they hear it often enough. I do not mean honourable senators, but I mean the public will realize the meaning of the oath and it is not an oath to a foreign monarch. Things such as that can be done.
The Chairman: Senator Joyal's suggestion, which avoids the use of the word, “allegiance,” would give you more comfort. I am not asking for total comfort, but more comfort. Is that correct?
Father Monet: It would give me almost total comfort.
Senator Andreychuk: The way you have framed the historical context of this subject is what I was taught in school. I was shocked with the conversations we have had around the table here that the historical context seems to be lacking from much of our debate.
For example, I was consciously told over and over again that ours is the Queen of Canada, not the Queen of England. I also had professors and teachers who went one step further who said: “Thank God we do not swear allegiance to any Canadian, for example, such as a president in the United States, because the Crown is neutral, whereas if we did it in the way that is done in France or in the U.S., that would politicize it.” That was their editorial context beyond that. Nonetheless, that is what I was taught.
After listening to some senators here, I have gone back to my province to find out whether we are still taught that way. I am not sure we are; that is the problem. I lament what many historians have said that we no longer teach our history and understand it fully.
There is a modern feeling about Canada that seems to be more of the public relations of the day. My problem is whether we separate the allegiance part and take another oath in this modern commercial setting that we are in. What is Canada when we do something to Canada as opposed to symbols within our Constitution? Are we not buying into this, that somehow there is this distinct Canada we have never paid allegiance to, and that we are still bound in some old system? I do not know if I am making myself clear.
Swearing an oath of allegiance and then having the Speaker or someone start talking about Canada is something with which I have trouble. It seems to diminish our Constitution. We are doing by the backdoor what we say we should not do by the front door.
I do not know if you have a response or not.
Father Monet: I am trying to pull together your question, senator.
In history and law there is no distinction between the Queen of Canada and Canada. However, in the popular mind there is. As I said, education is woefully deficient in recent years.
Having a second oath, or an explanation that would be reiterated and so forth every so often, would go a long way to clarifying the meaning of the oath of allegiance.
If I understand your question, you are saying, that is second best or it would be like divorcing — do I understand you correctly? It would be like separating the Queen from Canada and that would not be a good thing.
Senator Andreychuk: No, I think it is even more fundamental than that. If we say there is this common feeling that somehow Canada is something divorced from all our structures, then my fear is that we will take an oath of allegiance and, if it is followed immediately by someone talking about Canada, then that would diminish and further confuse the public. In other words, if you say something after about Canada, are you not by inference supporting the popular myth?
Father Monet: There is a division, yes.
Senator Andreychuk: It would seem to me that having something in the ceremony before the allegiance to explain that this is the way we swear allegiance to Canada would be better than taking two oaths.
Father Monet: You are expressing it very well, I think.
The details of the ceremony are something to be worked out. It might be better to have the explanation before rather than after. It might be better for there to be some symbol that is given to the senators, in this case, when they take their oath of allegiance that is clearly a Canadian symbol.
I am ignorant here. I know the members of the House of Commons wear a round pin with a mace on it. Do senators as well?
The Chairman: We have red ones, yes.
Father Monet: You already have a symbol. Perhaps it could be something of that nature. We would have to sit down and get our imaginations working. There could be a symbol. I am thinking off the cuff here. A short time ago at the installation of the Governor General, the colours of the different Canadian orders were presented to her. The Great Seal of Canada of which she is the custodian was presented to her. Again, these are all symbols, but they represent rich reality. They Canadianize the office. There could be something like that that would Canadianize the oath and give a Canadian meaning to it.
Senator Andreychuk: I take my duties in the Senate seriously, as I am sure all honourable senators do. I have already sworn my oath of allegiance. Now we will come along and say to new senators, “Here is what you have to do. There is an oath of allegiance and then some other oath to take.” That begs the question: Do we all have to take the second oath? If I take a second oath, I am admitting that I was lacking in some allegiance to Canada, which I do not think I was. I think it is an admission of something that troubles me.
Father Monet: I am not promoting a second oath. Perhaps a second oath would do it, but perhaps it is better to have some other affirmation of our duties to the integrity of the country that can be represented in the induction of senators. It could be a good model for other bodies, too. We would need a think tank on it.
Senator Andreychuk: I like the moves we were making by having Canadians as Governors General. I am thoughtfully thinking of how we change all our capacities without tampering with the essence of them. That is what I would look for if we go the route of Canadianizing the allegiance.
Father Monet: Those moves are all according to the genius of the Constitution we have. They are not things that are brought in from another system and tacked on.
I have been trying to say this morning that we have to respect the principles of the constitutional structure. There, allegiance to the sovereign and to a person is the important thing.
[Translation]
Senator Losier-Cool: I have a question for our invited historian. As an Acadian, when someone talks about the oath of allegiance, my thoughts go back in time. At one time, Acadians refused to swear an oath of allegiance. This decision had some very grave repercussions and shaped the lives and history of the Acadian people. Getting back to the present, could this requirement have consequences of some kind for a person who has already sworn another oath of allegiance? Acadians did not have a choice to refuse to swear allegiance, because there was no charter or Constitution to invoke.
How do you feel about the choice that Acadians made? At this time, Acadians are discussing possible reparation for the harm they suffered. How do you feel about allowing people to choose between several oaths of allegiance? By allowing this, do we not also run the risk of creating two categories of senators, one where senators swear the current oath of allegiance, and a second where they ask to swear the new oath?
Father Monet: Your second question is easier to answer. It would not be good to have two categories of senators. As for the matter of the Acadians, if memory serves me well, the Acadians refused to swear an oath of allegiance because that would have meant taking up arms against the French and they were a French people. In some respects they were being faithful to the first oath of allegiance sworn to the King of France.
Unfortunately for the Acadians, there was neither the imagination nor the political will to distinguish the oath of allegiance to the king from the responsibility to take up arms or the duty to take up arms. Otherwise, I believe the Acadians would have readily sworn allegiance after the 1774 Treaty of Utrecht, as French Canadians did after 1760.
At that time, Monsignor Brillant had proclaimed a Te Deum in honour of King Georges III and French Canadians celebrated the marriage of the new king even before the signing of the Treaty of Paris. This incident spawned a real debate in Quebec. A distinction was drawn between the oath of allegiance and the duty to take up arms. However, such a distinction was not made thirty years earlier in Acadia.
Today, everyone considers this historical event to be reprehensible. However, it clearly demonstrates the importance of an oath of allegiance and the importance of being able to decide whether or not to swear that oath of allegiance. This act is no mere symbol or empty ritual, as is clearly borne out by the history of the Acadian people.
Senator Losier-Cool: I understand full well the importance of the oath of allegiance and the refusal to take up arms. The issue is this: a senator is required to swear an oath of allegiance. However, what consequence would he or she face for refusing to do so?
Father Monet: Currently, a senator is required under the Constitution to swear an oath of allegiance before he or she can take a seat in the Senate.
Senator Joyal: Father Monet, you gave a very expansive definition of an oath of allegiance, with the emphasis on the concept and meaning of allegiance. However, in response to Senator Andreychuk's question, let me just say this:
[English]
I would think there is no incompatibility to have an oath of office along with the oath of allegiance. As a matter of fact, when ministers of the Crown are sworn in as a minister of the Crown, they takes the oath of allegiance, which is provided for in the Oath of Allegiance Act, and they are invited to take an oath of office, which is a commitment to assume the new responsibility to the best of their knowledge and ability. That does not diminish whatsoever the oath of allegiance because it has nothing to do with allegiance. It is a commitment to perform a duty to the best of one's ability, knowledge and so on. In other words, I do not see an incompatibility in having an oath of allegiance and an oath of office as a complement to the commitment of the person to serve the integrity of the constitutional authority of the country as it is constituted, which is represented by the person of the Queen. An oath of office would commit the person taking the oath to perform the duty that he or she takes on to the best of his or her knowledge.
I think we could, to a point, take into account the points made by Senator Andreychuk. In my opinion, they are valid. You cannot confuse the concept by having two oaths side by side, and seem to put emphasis on one. I will not say it is at the expense of the other, but it would seem to forget the first one because of a myth, interpretation or lack of knowledge of history, saying, “That is the old days. Now, we are Canada and we have nothing to do with the Crown.”
I totally agree with that. On the other hand, in my opinion, there is a possibility to have an oath of office with the oath of allegiance, that could be added in the proper form.
Father Monet: Yes, I agree, definitely. When I said I also agree with the fact that if the other oath was only to Canada or to the integrity of Canada, it might give the impression that there are two realities, whereas in fact there are not two realities in our system. Certainly, oaths of office are frequent, and members of the Privy Council take an oath of office. Mayors of cities take oaths of office. There is no incompatibility that way.
This oath of office, or whatever term is used, that senators would take would certainly talk about Canada, but it also might remind all Canadians what the Senate is for, how the Senate came about and the responsibilities of senators to represent the regions, minorities, and historical debates around Confederation for creating a Senate. Again, the professor in me will say that the Quebec conference that set up what became the British North America Act lasted four days. Almost three days were spent discussing the Senate. The rest, the federal government, the confederation, buying the Hudson's Bay territories, all these other huge things all went through quickly. The discussion on the Senate was a critical deal breaker in the Quebec conference: whether it would represent provinces or regions, whether it would be elected or appointed, and on and on.
Finally, the Senate is a unique body. No other countries have it. There are the House of Lords and the Senate in Australia, but the Canadian Senate is the result of a lot of reflection by the Fathers of Confederation. An allusion to those arguments that were made in creating the kind of Senate that we have and the responsibilities of senators and so forth would make a wonderful oath. It would be educational for most Canadians about how important it is to be a senator, and here are the duties. It would be like an oath of office that way. I think that would be, as far as I am concerned, a happy solution. There are others too, I am sure.
Senator Andreychuk: Supplementary to Senator Joyal, when you proposed the question, did you take into account that we are called by warrant, but we cannot take our seat in the Senate until we take the oath? That is what I have always taken as my duties, the offices. In fact, I like that process to be different than privy counsellors and the executive arm. Are you intending to change that kind of education? When I visit high schools, I explain to the students that until I take the oath, I have no right to sit in the Senate and do the business of the Senate. Did you take that into account when you suggested a second oath in respect of our duties?
Senator Joyal: No, the letter of the Constitution is clear, and I have quoted the command many times. It is a Constitutional obligation to be present once you have taken the oath. The Constitution contains a provision in section 36 such that if you do not attend, you are disqualified. I will quote section 31 of the Constitution at the first motive of disqualification:
The Place of a Senator shall become vacant in any of following Cases:
1. If for Two consecutive Sessions of Parliament he fails to give his Attendance in the Senate;
The obligation of the command is for a senator to be here. This is the nature of our obligation and we cannot assume the legislative responsibility unless we have an oath of allegiance. This oath is the Constitutional link of a senator's obligation as confirmed by the first reason for the disqualification of a senator. If we had an oath of office, it would be an oath of commitment to use all our knowledge and expertise to express the views and consent that we are requested to give. Our obligation is to express the advice and consent, as the Constitution states. Legislation cannot be enacted without the advice and consent of the Senate.
My obligation is twofold: to leave all else behind in order to attend, otherwise I would be disqualified; and to give my advice and consent to proposed legislation. That is essentially the Constitutional duty. The rest is complementary but not essential to the definition of the role of the Senate. In expressing my consent and advice, I commit myself to using the best of my knowledge and ability. I could envision having such a commitment that would come after but not before. A sequence to the constitutional order must be followed because, as you know better than I, the Constitution is a rational structure. There is nothing contradictory in the Constitution. All elements complement the architectural structure of the exercise of power vested in the crown, be it legislative, executive or judicial. I do not see an oath of office as a contradiction to the duty of senators to do their work to the best of their capacity, knowledge and expertise. That then commits senators more to the exercise of responsibility. That is the way I see this, although I might be mistaken. That is my definition of an oath of office related to the constitutional duty of advice and consent. Privy counsel gives advice and consent to the executive of government, while a legislator gives advice and consent to the House. The House as a whole expresses views to the Crown so that the Crown can enact legislation. It is a step-by-step approach.
I have another question concerning your opening remarks. You said that allegiance is a reciprocal obligation, which is difficult to understand in today's world. Can you be more specific about the concept of reciprocal obligation of the Crown versus citizens — “subjects” no longer exists as a concept in our Constitutional law — and the reality of today's role of the Crown in terms of obligation.
Father Monet: Yes, the obligation of allegiance on the part of citizens is to be faithful to the lord or the monarch. However, the monarch has duties toward the people. Traditionally, the main duties were to defend the integrity of the country; to see to the prosperity of the people, those who have pledged allegiance; to defend them; and to see to the peace, order and good government of the country, as was instituted in the British North America Act. Historically, wars have occurred because one country claimed that people were taken hostage by, or annexed to, another country and so it fought to bring them back to their rightful country. A monarch has definite duties, and that is what I meant by “reciprocal relationship.”
On occasion throughout British history during the revolution of 1688, there was an argument about whether King James II performed his obligations to his people. Those who thought he was negligent called on the next in line, Mary and William of Orange, to assume the throne in his stead. During the first couple of years of the French Revolution, when people were trying to readjust the monarchy without abolishing it, some claimed that King Louis XVI had not fulfilled his duties to his people and so there should be changes. That concept of mutual responsibility, one to the other, exists in the whole notion of allegiance.
Senator Joyal: Chair, may I ask another question?
The Chairman: Yes, sir.
Senator Joyal: The Royal Titles Act was adopted in 1953, wherein the sovereign was described as:
Elizabeth the Second, by the Grace of God of the United Kingdom, Canada and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the faith.
[Translation]
In English, it says: “Elizabeth the Second, by the Grace of God of the United Kingdom, Canada and the other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith.”
[English]
Could you explain why it is that in 1953 the concept of the monarchy was defined in terms of titles and domain. Why were those elements retained at that time? In the Constitution, the oath of allegiance is only to Elizabeth II. What link do you make between the oath and the titles of the monarch in the bill, the Royal Style and Titles Act of 1953?
Father Monet: You are asking me for an opinion. If I wanted to prove it, I am willing to do more research and bring out some research.
My opinion is that the Royal Style and Titles Act defines the role of the Queen in Canada. It is the Queen's Canadian title, and she is the Queen of Canada. Canada would then have been mentioned in the oath of allegiance, if the text of the oath of allegiance had been modified at the time to say, “I pledge allegiance to Elizabeth II, Queen of Canada,” and even enumerate the titles, and then it would have been clear that it was the Queen of Canada and not the Queen of Great Britain.
My own opinion — I would have to look up to see if there are any papers to prove this — is that they neglected to do it. The text was in the British North America Act. Nobody thought of adjusting it to the new reign, except by putting the Queen's name instead of Queen Victoria, which was in the original. If they had, it would have saved some of us debate at this time or even earlier. However, it is not there and they did not do it. In a sense, we are stuck with it. It will not change because making a constitutional amendment over that will not happen.
There we are. That is why I think you have this committee to see if one can bring out the Canadian reality of the Crown, despite the fact that the terminology of the Constitution dates back to the 1860s. I regret that, but there we are.
In my opinion, it would have been better to adjust it at the time. The Citizenship Act and the other oaths of allegiance, not the ones that are prescribed in the Constitution, carry the Queen of Canada. They also mention the heirs and successors, which is the dimension that I think is important to continuity, that the symbol of the crown expresses the history and the future because it is a family that is there. Speaking of the duties of the sovereign, one of them is to provide heirs, precisely for the continuity of the state.
I do not know if that answers your question, Senator Joyal, but I think that the oath would be clearer if the titles of 1953 were in there rather than the old one.
Senator Joyal: Can we contend that the Royal Style and Titles Act is a complement to the constitutional definition of the Crown as stated in the oath of allegiance and the other parts of the Constitution Act.
Father Monet: I would say that. I do not have the text of Mr. St. Laurent's speech in the House and have not looked at it lately. I looked at other parts but not that one. When he presented the bill, if memory serves me correctly, he alluded to the fact that at the beginning of this new reign — and there had been a Commonwealth conference, too, about how the title, “Head of the Commonwealth,” was the new title that was being added as well as Canada — that there was a need to update the titles of the monarch of the sovereign, and this was an updating of what had been there before.
When King George VI succeeded, he was proclaimed as King in Canada, but they kept the same nomenclature as they had for George V, and Edward VIII in between the time. They did not make any change in Royal Style and Titles Act since Edward VII.
In 1953, it was an update. One would interpret, if that is your question, the oath of allegiance in the Constitution in the light of the Royal Style and Titles Act.
Senator Andreychuk: It seems to me I recall dates having been involved at one time in Government House and protocol, et cetera, that you use all her titles to properly identify her.
Father Monet: The person, yes.
Senator Andreychuk: That is why we have all those other names. It was not intended that those names to be used in Canada. That was how we identified the person, and that is why I think it was put in the 1953 act. It was explained to me by the protocol office in that sense. That is what she goes by, and, therefore, we simply left out the part that is used in Canada. She has a title that goes beyond what is Canadian, but it identifies her Canadian responsibilities and her Canadian title. That is what I was told.
The Chairman: We cleared that up. Have you completed, Senator Joyal?
Senator Joyal: We have asked previous witnesses whether, if or when there is a new monarch, there is a need for members of Parliament or senators to take a new oath of allegiance. What is your answer to that question?
Father Monet: I know the decision, and it is recognized by the courts, that holders of office do not need to take a new oath of office as they used to back in the nineteenth century. I think that decision would illustrate the fact we talked about, that it is the titles of 1953 that we are pledging allegiance to in the text of the Constitution because it is to the heirs and successors as well, and, therefore, we do not need a new oath.
Senator Joyal: In other words, we can continue to maintain the same oath we took when we took our seat in the Senate.
Father Monet: You are implicitly making an oath to the Queen's heirs and successors.
Senator Joyal: To the integrity of the system, implicitly.
The Chairman: We have completed this within our allotted time. It has been helpful. I think zeroing in on the allegiance — Senator Joyal had also zeroed in on the same thing — is helpful. Speaking for myself, some of us who are comfortable with the current monarchy system, but at the same time, willing to massage to the extent that more Canadians can identify with the oath without watering the wine, so to speak, that is something that I am open-minded toward.
We never want to water the wine, but we do like to massage.
Senator Joyal: We want to wine the water.
The Chairman: We will meet next Tuesday, and Professor Smith has confirmed that he will come. That will probably take up the allotted time. We may even get into the topic.
Just as a housekeeping matter, can we now confirm that we can have the subcommittee meet on Wednesday with regard to the use of Aboriginal languages and the translation on appropriate notice ahead of time?
We have been talking to all those senators who might on occasion wish to avail themselves of that. I think we will plan on that for Wednesday.
We could invite those members to attend who have indicated they may on occasion wish to make use of a Canadian Aboriginal language in the chamber.
I do not know if you are aware of this, professor, but we will tell you about it if it intrigues you.
The committee adjourned.