Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament

Issue 4 - Evidence - Meeting of June 29, 2005

OTTAWA, Wednesday, June 29, 2005

The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 12:15 p.m. to examine and report upon establishing a new system of numbering for Senate bills and an oath of allegiance to Canada.

Senator David P. Smith (Chairman) in the chair.


The Chairman: Colleagues, our first item will be the draft fifth report, which is in front of you. I will simply read the actual recommendation, because we have had a pretty thorough discussion of this in a previous meeting:

Your committee recommends that, beginning with the next session of Parliament, the Senate adopt a system for numbering Senate bills as follows:

S-2 to S-200 will be reserved for bills introduced by the Government;

S-201 to S-1000 will be reserved for Senate public bills introduced by individual senators; and

S-1001 and up will be reserved for private bills.

If you go through the memo, you will see in point 7 that Bill S-1 would continue to be the pro forma bill that is introduced at the beginning of each session of Parliament. The Commons has taken this approach. If the number has a ``C'' or ``S'' in front of it, you will know instantly if it is a government bill, a public bill introduced by individual senators or a private bill. The clear consensus was that we would go this route. This report was prepared, which basically reflects what we decided.

Are there any questions?

Senator Di Nino: I move adoption of the report.

The Chairman: All in favour?

Hon. Senators: Agreed.

The Chairman: It is agreed, so I will be tabling this today.

Before we hear from Mr. Patrice, there was a question raised about whether oaths had to be taken upon the change of a monarch. Mr. Robertson did some research on this and there was a memo, which was not circulated, so he will summarize it.

Mr. James R. Robertson, Principal, Law and Government Division, Parliamentary Information and Research Service, Library of Parliament: The Interpretation Act was amended in 1967 to provide that holders of offices under the Crown and right of Canada are unaffected by the demise of the Crown and are not required to be reappointed or to take a new oath of office or allegiance. A document prepared by the Privy Council Office indicated that prior to 1967, members of Parliament had taken a new oath of allegiance, although there was no legal requirement to do so.

Privy councillors, likewise, had not been required to take a new oath of allegiance, but many had done so in the past, following the requirement which, before 1967, applied to ministers. The new statutory provision — that is, the new 1967 provision — exempts privy councillors, ministers and parliamentarians from the requirement for a new oath of office or allegiance.

I will quote from section 46(1):

Where there is a demise of the Crown, (a) the demise does not affect the holding of any office under the Crown in right of Canada; and (b) it is not necessary by reason of the demise that the holder of any such office again be appointed thereto or, having taken an oath of office or allegiance before the demise, again take that oath.

The Chairman: Let us hear now from Mr. Michel Patrice, who is parliamentary counsel. He has a presentation, and will explain to you what he has looked into and what he has concluded.

Mr. Michel Patrice, Parliamentary Counsel, Legal Services, Senate of Canada: Honourable senators, after this presentation, a written report will be provided to the committee.

The committee requested that I look into the proposals that were discussed during the last meeting to ensure that initiatives such as these are done constitutionally, without breaking any rules or being subject to court challenges. I was also asked to consider whether the fifth schedule of the Constitution, which prescribes the oath of allegiance, could be amended pursuant to section 44 of the Constitution by an act of Parliament.

Can an oath to Canada or other form of expression of commitment in the Rules of the Senate coexist with the oath prescribed by section 128 of the Constitution Act, 1867? The short answer is yes. However, in my view, within reason.

When dealing in the area of constitutional law, any analysis must take into consideration historical context and evolution. Canada and its Constitution have changed significantly: from a colony established and governed by an act of the United Kingdom to an independent country with its own Constitution. This progression has been the result, in part, of the ``living tree'' doctrine that recognizes the British North America Act as an organic statute capable of adapting to contemporary realities.

In order to assess the legal implications of this question, one has to consider the nature and meaning of the oath of allegiance that is prescribed in the Constitution. An oath is a formal expression by a person that he or she is bound in conscience to act in a certain way: to serve, to be loyal or to perform an act.

In a decision of the Federal Court of Appeal, Roach v. Canada (Minister of State for Multiculturalism and Culture), it is stated:

An oath ``relies on the individual's inner sense of personal worth and what is right.'' It engages the ``will and conscience of the taker of the oath.''

It can be seen that an oath or affirmation is a solemn matter whose function in our society is to secure important goals such as truth, justice, good government and national security. As Gochnauer has explained:

As far back as we can trace the oath, it performs the social function of publicly committing the speaker to something in the strongest possible way. In the extremity of the undertaking it is equalled only by vows.

Some members of society have never sworn or affirmed an oath. Others may have been required to take one or more oaths: Members of Parliament take an oath of allegiance; lawyers, doctors and some members of the public service have to take an oath.

Given the serious nature of an oath, no person should be placed in the position of having to take conflicting oaths.

The oath of allegiance taken by senators is to ``Her Majesty Queen Elizabeth II,'' the Queen, a natural person, who is also Canada's head of state. As stated by the Federal Court Appeal Division in upholding the decision in Roach v. Canada (Minister of State for Multiculturalism and Culture):

Canada can be called a constitutional monarchy in the sense that its head of state, i.e., the Queen, is a person chosen along hereditary lines. However, since 1926, there exists a King or Queen of Canada, distinct at law from the monarch, and there is now a distinction between the king or queen of Great Britain, and the king or queen as head of state.

The Queen's presence as Canada's head of state is an integral part of our Constitution, as evidenced by ss. 9 and 17 of the Constitution Act, 1867...

In a sense, we can say that the Queen and our Constitution are indivisible, subject to an amendment to the Constitution pursuant to section 41. When swearing allegiance to the Queen, the head of state, it encompasses the Constitution and what it represents.

In the Federal Court of Appeal, Justice MacGuigan stated:

Although there is an immemorial common-law tradition behind the role of the monarch as head of state, that is now subsumed by s. 9 of the Constitution Act, 1867, which provides with respect to executive power that ``[t]he Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen,'' and by s. 17... Since Canada is a constitutional and not an absolute monarchy, the Queen does not rule personally, but rather may be said to ``reign'' — by constitutional convention, through the advice of ministers...

Against this constitutional background, the oath of allegiance has to be understood to be binding in the same way as the rest of the Constitution of Canada — not forever, nor in some inherent way, but only so long as the Constitution is unamended in that respect.

It is a matter of common sense and common consent that it is neither unconstitutional, nor illegal, nor inappropriate to advocate the amendment of the Constitution.

In my view, to swear an oath of allegiance to the Queen is also swearing adherence to the Constitution and it expresses ``a solemn intention to adhere to the symbolic keystone of the Canadian Constitution as it has been and is, thus pledging an acceptance of the whole of our Constitution and national life.''

What are the legal consequences of the oath of allegiance? It is well established in jurisprudence and parliamentary procedure that, with respect to the oath of allegiance required to be taken pursuant to section 128 of the Constitution Act, 1867, the Houses have exclusive jurisdiction over the conduct of their members and their right to sit and vote.

In Edwards vs. Attorney General for Canada, the ``persons case,'' the Judicial Committee of the Privy Council said:

[T]he Senate possesses sole and exclusive jurisdiction to pass upon the claims of any person to sit and vote as a member thereof, except in so far as that jurisdiction is affected by statute. That, I think, is clearly the result of sec. 33, combined with the Imperial Act of 1875, and the subsequent Canadian legislation.

Also, in the other place a question of privilege was raised over an alleged breach of the oath of allegiance by a member of the House. It was to do with a member of the Bloc Québécois. The ruling of Speaker Fraser confirmed that:

Only the House can examine the conduct of its members and only the House can take action if it decides action is required.

Sanctions for a breach of the oath of allegiance lie exclusively within the jurisdiction of the House. There is no penalty provided in the Constitution Act, 1867, or in any other statute in relation to the oath prescribed by section 128 of that act.

I was asked to provide my comments on the proposal. One question was whether such an inclusion in the rules would be subject to court challenge.

I submit that if the rules are amended to provide for an oath or some form of expression of commitment to Canada and its Constitution, such a provision would be protected from court challenge by virtue of the privilege of the house to control its proceedings, to establish rules of procedure and to enforce those rules.

However, it is suggested that any concepts expressed in such a declaration should be consistent with the substance of the oath of allegiance that must be taken by senators so as not to create any perceived conflicts between them.

At a more technical level, the committee should consider if the oath should be taken immediately after the senator takes his or her seat. This is conceptual. When we say ``take his seat,'' it means that the senator is allowed to sit and vote.

On another point, what about sitting senators? Will a signed form be required? Will they have to subscribe to the oath? The same applies. Those are more questions that the committee might want to consider.

In terms of the amending formula that would be required to amend the fifth schedule of the Constitution Act, 1867, two possible options exist: amendment by unanimous consent through section 41, or unilateral amendment by Parliament under section 44.

If the modification sought is perceived as an amendment ``in relation to'' ``the office of the Queen, the Governor General and the Lieutenant Governor of a province,'' then section 41 would apply, the unanimity formula.

There are no judicial decisions as to which amending formula applies to section 128 and/or the fifth schedule. However, the Supreme Court did make reference to section 128 in Blaikie v. Quebec (Attorney General). In that case, the court had to consider what constitutes ``the Constitution of the Province'' to determine whether 92(1), which is the predecessor of section 45, could be used by the province to amend section 133, which relates to the use of French language and English language in the proceedings in the legislature of Quebec and in the courts, as well as at the federal level.

In its analysis to determine the scope of ``the Constitution of the Province,'' the court inquired whether section 128, dealing with the oath of allegiance, was within that category. The court stated:

Section 128, referring to the taking of a prescribed Oath of Allegiance... raises a different issue, referable to the Office of the Governor General and of the Lieutenant Governor and touching the position of the Crown...

Unfortunately, since it was not necessary in the case, the court did not come to a conclusion on this question. However, their characterization of section 128 as raising issues ``referable to the Office of the Governor General and of the Lieutenant Governor and touching the position of the Crown...'' suggests that an amendment to section 128 and to the fifth schedule might arguably fall within the scope of section 41 and require unanimous consent.

However, by section 44, if the amendment sought was to the fifth schedule of the Constitution to provide for a distinct formula for the oath of allegiance for members of Parliament, keeping one intact and setting a separate formula for members of Parliament, would it be in order to proceed under section 44?

In interpreting the application of the different formula, one must consider the ``pith and substance'' of the proposed amendment. The purpose of section 44 is to allow Parliament to amend the Constitution of Canada by way of an act of Parliament so long as the pith and substance of the amendment is a federal matter and does not encroach on provincial powers or constitutional principles. Peter Hogg has stated that the pith and substance analysis is not to be technical or formalistic.

If the objective, the pith and substance, of the amendment, was to ``modernize'' the language of the oath of allegiance without affecting the office of the Queen — the Governor General and so on — or its position, a good argument could be made in favour of the appropriateness of using section 44. Indeed, such an amendment, if coherent with the existing oath of allegiance, could clearly be understood as ``in relation to the executive government of Canada or the Senate and House of Commons.''

However, if the amendment sought affected substantially the substance of the existing oath of allegiance provided in the fifth schedule, then section 44 would not be the appropriate amending formula to use.

This analysis is also applicable with regard to a province that would want to amend the fifth schedule — what is good for the goose is good for the gander.

That concludes my remarks, honourable senators, and I am open to questions.

The Chairman: With regard to the referral, there were actually two that were before us. There was the original one from Senator Lavigne and then there was the variation on that theme, something like Brahms' variation on a theme by Haydn. This would be Joyal's variation on a theme by Lavigne; so we have two.

Do you have any comment vis-à-vis the differences between the two?

Mr. Patrice: Frankly, it is a decision of the committee in terms of with which one it feels more comfortable.

So as not to create any sort of conclusion, I would avoid using the word ``allegiance.'' It could be an oath of service or something like that, if you decide to proceed to amend the rules and include such an oath.

The Chairman: Does the word ``allegiance'' have baggage?

Mr. Patrice: You do take an oath of allegiance pursuant to the Constitution. It would depend on the wording you choose. If you have another oath of allegiance, using ``allegiance'' twice may cause some senators to perceive conflicts. It depends on the rest of the words.

The Chairman: That reminds me of that scripture: No man can serve two masters. Choose ye this day whom you will serve.

Senator Lavigne: Would it change something if senators swore allegiance to the Queen and to Canada at the same time, without senators taking their seats and coming back?

Mr. Patrice: What is important is that you take the oath in the fifth schedule, which basically stops at Her Majesty Elizabeth II. When we say ``after taking a seat'' and proceed to the other one, it is conceptual. It does not mean you have to leave where you are and sit down. It is saying that as a condition for you to take your seat, which is the right to sit and vote, you need to swear that oath. It does not mean that you need to go physically from point A to B.

Senator Milne: I have a simple question. If this additional optional oath is in the Rules of the Senate, the Constitution would not have to be amended, would it?

Mr. Patrice: No, you are correct.

Senator Milne: The question does not really arise. What arises as a question is if that gives you two classes of senators: some who have taken both oaths and some who have just taken the oath of allegiance.

Mr. Patrice: That is one question it raises, yes.

Senator Joyal: First, I would like to thank Mr. Robertson for his information about the question of the need to take a new oath. It puts the issue to rest. It is important that we are aware of it.

Second, I would like to commend Mr. Patrice for his contribution this morning. I learned something, for which I am grateful, especially when you touch the issue of the consequences for ``an alleged breach of the oath.'' I think you raise an important point. You bring the solution in sight: the privileges or rights of Parliament to deal with matters that relate to its own members. It is a good qualification to what we were told yesterday that there is nothing that can happen if you breach your oath. You heard my position on that yesterday. I had reservations on the perception that you can take an oath and do whatever you want about it, that there is nothing that can follow from it. I am of the opinion that when you take an oath you pledge yourself, you commit yourself to a certain way of conducting yourself; that is, to tell the truth or to use your best knowledge and capacity to serve, et cetera, such as with the professional oaths taken by doctors and lawyers that you mentioned. I welcome that point. It is an important additional aspect that we have to consider in this matter.

With regard to section 128, I thank you for quoting the Blaikie v. Quebec (Attorney General) decision. Some senators here might have read it; I am thinking of Senator Fraser. I remember that case very well. It was about section 133. One thing that is important to remember is that if you look into the Constitution, it is in the chapter titled ``General.'' The first section under that heading is the oath. It goes on to other sections and then closes with section 133.

In other words, the place where that issue is located in the Constitution has a general meaning, not a particular one. If it were particular, it would not be in that section of the Constitution. It would be in another section that would deal, for instance, only with New Brunswick or Newfoundland, because we know in the Constitution there are different clauses that deal with the status of those provinces when they joined Canada.

The court's interpretation of section 128, which we were discussing yesterday, provides the same oath for all the legislatures and the federal Parliament; namely, the House of Commons and the Senate. It is an important element of interpretation as to how we can change the text of the oath. That is the way I have read it, and until we have a final decision of the court, we might not know. However, to me, the text of the oath is an integral part of the architecture of the Constitution, as I mentioned yesterday, which vested the power in the Queen.

The executive, section 9, and then the legislative powers, sections 17, 91 and 92, are vested in the Queen. If you change something that relates to the Queen, you have changed something fundamental in the Constitution, and then you come back to the general application that you need unanimity to do that. The court confirmed that in the Blaikie v. Quebec (Attorney General) decision to which you referred. It is helpful to us.

Personally, when I made my own oath, I was in exactly the position of Senator Lavigne. I met with Mr. Audcent, as most of us have met with him, and he gave me the text of the oath. When I looked at it, I said, ``At least, I want to swear to the Queen of Canada,'' because, to me, the Queen is the Queen of Canada for the very distinction you have mentioned; namely, that there are two legal Queens. There is the Queen of England and the Queen of Canada, and the Queen of Canada can sue the Queen of England. In fact, it is the same person. It is like talking to yourself in practical terms but, in reality, they are two constitutional entities. In fact, if Canada were to sue Great Britain, it would be, essentially, the Queen of Canada against the Queen of Great Britain.

The Chairman: Over submarines, for example.

Senator Joyal: Those are concepts that seem to be fancy, but in fact they cover reality, which is important.

I said to Mr. Audcent that I did not want to swear to the Queen; rather, I wanted to swear to the Queen of Canada. He said that if I did that, I would put myself in trouble. To change the oath is a constitutional issue, so one can introduce a resolution to change the Constitution, but he told me to please stick to it because, legally, I would be on uncertain ground.

Senator Milne: That is what I was told when I tried to affirm.

Senator Joyal: You are on uncertain ground, and you might not want to enter the Senate and create a problem on the first day you are there.

Senator Lavigne raised exactly the same issue. How can we address the preoccupation of Senator Lavigne in the context of the Constitution?

What Mr. Patrice suggested to us makes a lot of sense. According to what Mr. Hurley mentioned yesterday, pledging to uphold the Constitution of Canada is not challenging our oath of allegiance to the Queen. According to your reading, when we pledge allegiance to the Queen, we pledge allegiance to the constitutional order as defined in the BNA Act, the Constitution Act of 1982 and all the other amendments.

We would be more precise in our pledge. My only concern regards using the word ``allegiance,'' because ``allegiance'' in the context that you have described has a particular meaning, constitutionally.

You come in the Senate and have the option of taking an oath, or not, on the Constitution of Canada. Either we have it, or we do not. Otherwise, it sends a different signal to the population, that it is not that important because you have the option.

The Chairman: I would like to ask Mr. Patrice one question to see if I can clear something up. I always think it is helpful when lawyers can talk in non-legal terms for the rest of the world.

Senator LeBreton: Is that possible?

The Chairman: That is what I will try to do. The first thing we have to do is see if we have a consensus on if it is an important statement for this body, the Senate, to provide Canadians who come here with the ability to have an oath to Canada as well as to the monarch, which is required, so long as they are incompatible.

If the answer to that is yes, it seems to me that there are three ways to do it. The first would be through the rules, which might not have the same punch, but in a way it might have more: it is impervious to being challenged by the courts because it is in the field of privilege. The second way would be the unanimous consent, under section 41, which is just a nightmare to even think about, legislatively. The third way would be under section 44 where Parliament as a whole does it — both Houses — but it can be done. Are we down to those three?

Mr. Patrice: Yes.

The Chairman: Assuming that there is a consensus that we should go down this road, is it fair to say that the first one, the rules route, although not perfect, is the easiest to do?

Mr. Patrice: Yes, that is for sure.

Senator Andreychuk: I am certainly looking forward to reading the briefing, because it will be important to catch the nuances of what you are saying, Mr. Patrice.

If I am clear, yesterday, Mr. Hurley reduced taking an oath to that of a union membership. You adhere to the conditionality and you get into the club.

You have put it on an entirely different basis. You have quoted cases in your brief. Are there other cases in Britain or other places where we can look at the consequences of the oath?

Mr. Patrice: My research has been limited, up to this point, to Canada. I could look elsewhere in other jurisdictions to see if there is case law related to this issue Obviously, they are swearing an oath in different contexts. As you know, there is an oath for court, which is provided, and then there is perjury, et cetera. This is a different type of oath, not because it is not important but because it is at another level. It is really a question of conscience.

Frankly, if someone were to breach the oath of allegiance, it would carry a much stronger penalty. The person would not be charged with breaching the oath of allegiance, but would probably be charged with high treason because it carries a higher penalty than just a breach of an oath being perjury, et cetera.

I could look at other jurisdictions to see if there is more material to consider.

Senator Andreychuk: I appreciate your putting in there the point that I made as a lawyer but in a non-legal way. I said we have peer evaluation and peer responsibility for the conduct of all of us. Mr. Hurley did not put much weight on that. I take it that you do.

Mr. Patrice: Yes, and it is more peer evaluation. I think it is a responsibility of the collective body to ensure that the members have the proper qualifications.

Senator Andreychuk: You made the point that we could do something within the confines of our rules. However, I think you raised a warning that it should not be in conflict with the oath we now take. For legal reasons, but also for practical reasons, there would be confusion.

When I took the oath to the monarch, I took it knowing full well that it was an oath to my country. It may have been the terms used but the oath embodied everything this country is about. It is the Constitution. The oath is to the head of our system and what that implies. If we now hive off and try to clarify some portion of it, are we opening a can of worms?

Second, is it confusing to the public? I have tried to explain, as have other senators and political scientists, that it is not the Queen of England, it is the Queen of Canada. All these oaths mean pledging allegiance to Canada. The term ``Canada'' is what we use in ordinary parlance, but the legal term refers to the monarch.

Mr. Patrice: To the Crown; that is right.

Senator Andreychuk: If we say we pledge allegiance to the monarch and then to Canada, we have a conundrum, which leads me to ask how we define the term ``Canada''?

Mr. Patrice: These are excellent questions, senator. I do understand the meaning the oath had for you when you took it. There is an element of the oath that is a bit subjective: your conscience and what you understand it to be. It could well be that the second oath provided in the rules would mean exactly the same thing to you. So the question is: Would you be taking the same oath? Maybe. It depends on what you decide and on the perception of every individual.

In terms of it being confusing to the public, that is most likely, but there are other issues that are confusing to the public, such as what is the place of Her Majesty Queen Elizabeth II. We understand her as being the Crown and head of state, but some people may have another understanding. Yes, there may be confusion to the public also, but it may mean going into a bit more explanation.

Senator Andreychuk: How do you define ``Canada''?

Mr. Patrice: If you look at the Interpretation Act, Canada is defined as a geographical area. Canada is also a concept. In common parlance when you talk about ``my country of Canada,'' you are not necessarily talking about Red Deer, Alberta or Chicoutimi, Quebec. You are talking about the concept of Canada as the state as opposed to a geographical area.

Senator Joyal: ``Canada'' could be interpreted as defined in section 3 of the Constitution. Perhaps you could read that for the benefit of Senator Andreychuk and others.

Senator Andreychuk: Around this table and from witnesses who use the term ``Canada,'' I have heard the term mean different things. As a preface to your brief, it would be interesting to know what we mean when we use the term ``Canada,'' in order to put it in context.

The Chairman: Give me an example of the different things they mean by it, because I am mystified by the problem.

Senator Andreychuk: If we have an oath that says we swear allegiance to the sovereign, it is incumbent on me to explain my allegiances, and I start by saying that it is the definition of my entire obligation and duty to this country, Canada. Then I go on to explain the various legal parts and why it is better to swear an oath to the monarch. Otherwise, I am leading myself into what? A republic? What I want to know is this: When you say ``Canada,'' what is it you are swearing to? You may be befuddled.

The Chairman: I know what ``Canada'' means.

Senator Andreychuk: You do?

The Chairman: I think I do.

Senator Andreychuk: I know what it means when I use it in a particular context, but I have difficulty when it is put next to my oath of allegiance to the sovereign. It then begs the question: If that is not the oath to Canada, in a broad sense, then what is it?

Senator Milne: If I have heard you correctly, you are saying basically the same things that Mr. Hurley said yesterday. The oath that we swear to the sovereign presently includes everything that Senator Lavigne wants to put in his motion to add to the rules. It is basically included within that oath that we do swear.

Mr. Patrice: Yes.

Senator Milne: Members of the House of Commons are allowed to affirm that oath, which is not in schedule 5, section 128. They use wording to solemnly swear or solemnly affirm, I believe. I was not allowed to affirm the oath when I became a member of the Senate, even though I asked to do that. Is that legal?

I like the wording of Senator Joyal's version, that if you cut it down to, ``I, so and so, do swear or solemnly affirm that I will uphold the Constitution of Canada, and I will serve its people with honesty and integrity,'' it is a pledge to uphold the Constitution rather than to pledge your loyalty to Canada, which is included within the oath you have already taken.

Mr. Patrice: In respect to what the other House is doing and whether or not it is legal, I would prefer not to answer that question. It is the other place, so I recognize the exclusive jurisdiction of what they are doing.

Senator Fraser: By way of almost an aside in the matter of breaching our oath of allegiance, one serious way to do that is to swear allegiance to a foreign power. If we do that, we lose our seat in the Senate. That is a fairly significant sanction, it seems to me. It is not the only way to break your oath, but it is a blatant way.

Senator Robichaud: What if you have dual citizenship?

Senator Fraser: If you have it before you arrive, that is fine, but if you take dual citizenship after you get here, you are in trouble.

I am grateful to all for the excellent briefings. The reference to the Blaikie v. Quebec (Attorney General) decision really gives me pause. Those who were here last week will remember that I was taking the line that we could and should only do this if we could do it in the Constitution. If we simply do it through our rules and make it obligatory, we are setting up a new qualification for becoming a member of the Senate, and I thought that was exceeding our appropriate role, not to mention perhaps our powers. If it were to be a voluntary oath, I would have great trouble with it, because in that way lie witch hunts — loyalty oaths in general and who has taken them — of who is a true Canadian and who is not and all that stuff. It is serious trouble.

I was quite intrigued by the notion of a simple statute that would not replace the present oath but expand it by adding some form of words similar to what Senator Lavigne is proposing. Listening today, I am struck by the notion that that would be in a sense redundant, because the core of what we would be swearing allegiance to is not a given packet of soil but the Constitution. In swearing allegiance to the Queen, we already do that. I am becoming more and more leery about proceeding down this road, but I wonder if it might be worth considering an alternative avenue of attack.

The way the ceremony in the chamber works now is that you come in and the clerk swears you in. Then you go up to the Speaker and you shake hands and he says nice words like, ``Welcome to the Senate,'' and then you go to your seat. If, at the point you went to the Speaker, he had a formal statement that he read as an instruction to every senator, pointing out that the oath just taken embodies the whole of the Constitution of Canada and that you have bound yourself to serve it loyally, I wonder if that might have some of the same effect. That is just a thought.


Senator Lavigne: In Canada, do judges not take an oath of allegiance to the Queen and to our country, Canada?

Mr. Patrice: I would have to look into that, because there are various levels of judge: there are provincial court judges and Supreme Court judges. I will check on that.

Senator Lavigne: To whom and to what do immigrants arriving in Canada take an oath of allegiance?

Mr. Patrice: I have the oath taken by new immigrants here with me.


The Chairman: You mean when they become a citizen?

Mr. Patrice: When they become a citizen.


We can move on to another question while I look for that.

Senator Lavigne: I agree with Senator Andreychuk when she says that if we have two oaths of office, one to Queen Elizabeth II and another to our country, Canada, people will have trouble understanding and will see a conflict between the two oaths.

I received a reply from 551,000 Canadians, including lawyers, accountants and seniors to a letter I sent them — a copy of which I sent to all of you — regarding the oath of office I took to Queen Elizabeth II, and I added: to my country, Canada. These 551,000 people wrote to me to support my idea that we should be swearing an oath of allegiance to our country, Canada. They do not want to remove the name of the Queen. All they say is that we should be swearing an oath of allegiance to our country, Canada. Not to the Constitution of Canada, but to our country, Canada. They talk about the country, about our country. I have no conflict with my country. My country is Canada, and Canada is composed of the ten provinces and three territories.

I think it is reasonable that we in the upper chamber of the country should swear or affirm an oath of allegiance to our country. I won three elections by 21,000 votes, and I just do not understand this.

I was appointed senator, and I have to swear or affirm an oath of allegiance to Queen Elizabeth II in order to play my role as a senator, to do my work. That I understand. However, the average person on the street does not understand that Queen Elizabeth II is the Queen of Canada. They think she is just the Queen of England.

At school, we have to be taught what a country is and that the Queen of England is also the Queen of Canada. When I was at university, I never learned that the Queen of England was the Queen of Canada. I only learned that when I arrived here.

I am from a poor family, where there were 14 children. I had never travelled in Canada. I started travelling when I became a senator.

I found it very difficult when I came to the Senate to find that I was swearing an oath of allegiance to Queen Elizabeth II only, and not to my country. I have trouble accepting the idea that I was elected in a country called Canada, and yet I cannot swear an oath of allegiance to my country.

I have given tours of the Senate to students in political science from the University of Ottawa, and they do not even know what we do in the Senate. They did not understand that despite the fact that we are an independent country, that we have patriated the Constitution, that we swear an oath of allegiance to Queen Elizabeth II only, and not to our country.

I gave them some brochures explaining what the Senate is. They told me that they had learned more in one day with me at the Senate than they had learned at university.

The average person on the street has a great deal of trouble understanding the long speeches they hear politicians making. However, the fact of swearing or affirming an oath of allegiance to one's country, Canada, is not hard to understand. When we talk about the Constitution, many people do not know what it is. People say that we have had an independent country since the Constitution was patriated. Why is it that we must take an oath of allegiance to Queen Elizabeth II of England?

When 500,000 people from all over Canada take the time to write to me, that tells me that what I am doing is very important.


The Chairman: Thank you.

Senator Johnson: I would like to ask Senator Lavigne a question in terms of the questionnaire that he did. How did you pose the question to the people that you surveyed? What was the exact wording of the question?

Senator Lavigne: I sent everyone a package, explaining what I did when I was sworn in as a senator.

Senator Johnson: How did you frame the question?

Senator Lavigne: I asked them, ``Do you think I did swear an oath to the Queen and to my country, Canada? Do you think we should do that in the Senate when we come in and take an oath of allegiance?'' They said, yes, that we should do that. I will send you all the papers relating to the questionnaire, if you need them.

Senator Johnson: Obviously, you will get that answer when you ask the question the way you did. I am a political scientist by training; my honours degree was on the Canadian Constitution. I speak to students all the time in high schools. It is not that they just do not understand about pledging allegiance to the Queen. They do not understand Canadian government. You are not dealing just with finite issues like this; you are talking about the whole system we are working with, in terms of education in Canada.

I have worked in a lot of polling situations, which is why I am curious about the scientific methodology you used. If you ask the question a certain way, you will get the answer you are looking for.

Senator Joyal: Mr. Patrice, if you take the draft that I have been preparing, there are three elements to the proposal of the oath. The first is that you swear or affirm, to answer the preoccupation of Senator Milne, that ``I pledge my loyalty to Canada''; second, that ``I will uphold its Constitution''; and third, that ``I will serve its people.'' To me, they are three different components.

When you say, ``I pledge my loyalty to Canada,'' your interpretation or point of view is that that is included in the oath of allegiance to Her Majesty Queen Elizabeth II. The second one is that ``I will uphold its Constitution''; to me, there is a nuance in that one. ``Uphold'' means you will defend it; you will fight to maintain it. The third one, that you will ``serve its people,'' is totally new.

If we followed your interpretation strictly, and Mr. Hurley's interpretation from yesterday, then we could remove ``I pledge my loyalty to Canada'' on the basis that it is included in the oath of the Constitution. We could add an oath through which a senator will swear to uphold the Constitution of Canada; we would add the word ``Canada'' to the Constitution, because it is gone from the first part of the phrase, and ``that I will serve its people with honesty and integrity to the best of my ability.''

In order not to be redundant, we could keep the last two components of the proposal and delete the first one. Do you agree with that?

Mr. Patrice: If your objective is not to be redundant, obviously, you could do that. I am going to add that being redundant is not necessarily a bad thing. For example, the quorum of the Senate is contained in the Constitution and I think it is contained in the rules also. The problem of the redundancy probably lies elsewhere.

Senator Joyal: It is not confusing either. If we keep the first one, ``I pledge my loyalty to Canada,'' you contend it is included in the official oath, but that it does not contradict or confuse it.

Mr. Patrice: I think it is consistent with the oath.

Senator Joyal: The only question to be resolved is the one from Senator Fraser, which is that if we add this, we are creating an obligation on a senator; and if we create an obligation, we have to see the mechanism to implement it or the consequences if a senator fails to abide by it. What are the consequences and how do we go after it?

Mr. Patrice: If a senator failed to uphold the oath, it is the general process that exists right now. Basically, you raise the issue as one of contempt or a question of privilege and then it is for the house to deal with it. I do not think you have to provide a specific procedure.

The Chairman: I am looking at the clock. What we need to do, Senator Joyal, is get a feel for what we have a consensus on. I might go around the room and ask, ``Do something or keep the status quo?'' If we are going to do something, we will have to massage every single word and have a three-person committee over the summer, perhaps, that will talk and then come back with a proposal in the fall after massaging every word with the appropriate authorities.

Senator Andreychuk, perhaps you can deal with what you wanted to say, and then I will invite 30-second comments from everyone on whether or not we do want to do something. Changing the rules is certainly easier than changing an act of Parliament. To discuss this and do nothing has its downside too.

Senator Andreychuk: I will put my question, which is really building on what Senator Joyal was saying. If we do anything by virtue of the rules, and if we say they are not inconsistent with our first oath, then what we do in the second oath had better be as inclusive as the first oath. Otherwise, we are going to be subject to the criticism that we have narrowed what the oath was. If we elaborate only certain points, then we restrict the interpretation of the first oath. Therefore, I want to know what that means in parliamentary interpretation. If we put in A, B and C in the second rule —

The Chairman: What it may mean is you are volunteering to serve on the subcommittee.

Senator Andreychuk: I find it a little difficult to answer your question as to status quo or moving that way. I really need to see the brief in writing because I think it was very good. I was following it through. To come to the conclusion would be unfair to Senator Lavigne but also unfair to the work done, to put it in black and white terms.

The Chairman: I am happy to go around the room and ask if we should do something or nothing. Or should we do something now so that a little group can try to come back in the fall and say, ``This is as good as you can get; make a decision.''? That is what I need. If you want to say, ``Do not do anything,'' then say it.

Senator Milne: I am not saying we should not do anything. I think it is too complex for us to deal with it right now. I think we should deal with it in the fall, but I do not think we need a committee sitting over the summer to do it. There is not that much of a rush.

Senator Joyal: I would suggest we invite Mr. Jacques Monet, who is a well-known expert on the constitutional monarchy issue. It cannot hurt to hear him in one single session of this committee.

The Chairman: We invited him. However, we have not heard back from him, as far as I know.

Senator Joyal: That would be my next step.

Senator Fraser: I was trying to be helpful and get the round table started. I do not think we have a consensus around this table about anything at all, so I do not think there is anything with which a working group can work.

I would like to see the briefing notes, particularly the ones from Mr. Patrice, which are long, dense and very useful.

Mr. Patrice: I can have them to you by the end of the week.

Senator Fraser: I would like to leave on the table my suggestion of an alternative approach, which is basically an instruction from the Speaker to new senators saying, ``You have just sworn an oath to do these things.''


Senator Robichaud: I think we should continue our discussion, but I see that the more we talk about this, the more we find ways to do nothing. Perhaps we should focus a little more on trying to find a solution. I do not think that the Rules of the Senate can in any way impact on the Constitution of Canada. It is completely separate. This is something that we will include in our rules, and only there. I supported the motion, and I would like us to move forward, and to keep the issue as simple and as down-to-earth as possible.

Of course, this is our task, and we are going to consider the meaning of the words, but people like things to be simple, to go directly to the point. In addition, I would like us to move forward and to actually change the Rules along the lines suggested by Senator Lavigne.

Senator Chaput: I would like us to continue and to make progress in our discussions, to try to simplify things and come up with a solution. I think there must be a solution, and I do not think it is necessary for this to be so complicated. I leave all that in your hands.


Senator Andreychuk: We need more information to continue the discussion.

Senator Di Nino: I agree. I am certainly not ready to make a decision. Maybe I should not be the one who raises this — and I am not implying this with regard to our colleague, Senator Lavigne — but the spectre of the monarchy will come up in these discussions, as to whether there is a hidden agenda about the value and the retention of the monarchy; that argument has some support across the country on both sides.

I would like to know from Mr. Patrice how many people or groups of people actually pledge allegiance. Also, since 1867, have any of these pledges taken by various groups changed?


Senator Lavigne: I think it is important that we study this aspect of the question. I would like to have information about judges and the way in which they are sworn in. I have been told that judges took an oath to the Queen and to Canada and that immigrants took an oath to our country, Canada. I think we must consider that and simplify the text so that people understand it properly. This is a very important motion. I think that the people who wrote to me respect their country and would like us to change the Rules on this.


The Chairman: I think we have a consensus to keep this issue alive; that we need not set up a committee over the summer; and that we will resume discussion of it in the fall when we will have Mr. Monet and one or two other obvious authorities before us.

Senator Lavigne: May I invite the people who wrote to me to come to the committee and tell us why they want us to swear an oath to Canada?

Senator Di Nino: That will be a lot of people.

Senator Lavigne: There are some associations.

The Chairman: Senator Lavigne, that is up to you. To overly tax the patience of your colleagues could be counterproductive. If there are a couple of logical and credible people, that is fine, but overkill can be counterproductive.

The committee adjourned.