Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 4 - Evidence - Meeting of June 22, 2005
OTTAWA, Wednesday, June 22, 2005
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 12:15 p.m. to consider an oath of allegiance to Canada.
Senator David P. Smith (Chairman) in the chair.
[English]
The Chairman: Honourable senators, before moving to our agenda item for today, we are reviewing whether we have received the necessary form on membership. It is my understanding that a decision has been made in the caucus of the official opposition that the successor to Deputy Chairman Senator Lynch-Staunton, who has retired, will be Senator Johnson. I think that is great.
I was going to ask for a motion to that effect at the outset, but it may be that we do not yet have the paperwork.
Senator Andreychuk: I do not know what paperwork we need because, technically and legally, this committee elects its own chair and deputy chair. We may seek guidance, but the only thing we need to know is whether Senator Johnson has been added as a member of the committee.
The Chairman: That is what we are checking, and she has been added.
Senator Andreychuk: I move that Senator Johnson be deputy chair of this committee.
The Chairman: Will those in favour so indicate?
Hon. Senators: Agreed.
The Chairman: Carried.
Welcome, Senator Johnson.
The item on our agenda today is consideration of an oath of allegiance. We have a working paper prepared by Megan Furi from the Library of Parliament.
Senator Lavigne, would you like to hear the précis of the report before making your remarks?
Senator Lavigne: Ms. Furi may proceed.
Ms. Megan Furi, Researcher, Law and Government Division, Parliamentary Information and Research Service, Library of Parliament: Honourable senators, I will provide an outline of the current situation in Canada.
Pursuant to section 128 of the Constitution Act, 1867, all parliamentarians are required to swear an oath of allegiance to the Crown before they take their seat. Senator Lavigne's motion would not affect the wording of the oath required by the Constitution Act, as his motion seeks to amend the Rules of the Senate.
The Canadian House of Commons has dealt with this issue a few times. In the Thirty-seventh Parliament, Bill C-408 attempted to amend the Parliament of Canada Act. It was debated. One concern raised during the debate was that an oath to Canada would be redundant given that the oath of allegiance to the Queen is actually an oath to Canada because the Queen is our head of state.
Another argument in favour of the amendment was that more Canadians than ever before identify their origin as Canadian, and it is a very symbolic measure to take the oath of allegiance actually to Canada.
In all of the provincial legislatures, as required by the Constitution, the members have to take an oath of allegiance to the Crown before taking their seat. In Quebec, members are required to take an oath of loyalty to Quebec. In the territories, members take an oath of office to the territory in addition to taking the oath of allegiance.
In the Australian House of Representatives and the Australian Senate, they also take an oath of allegiance to the Queen. In three of the Australian states — Queensland, the Australian Capital Territory and the Northern Territory — they take oaths of allegiance to the Queen and oaths of office to the state. As well, in Western Australia and New South Wales, there is movement to take an oath of office to the country.
In New Zealand, parliamentarians are required to take an oath of allegiance to the Queen, but they are in the process of modernizing various oaths, including the parliamentary oath which would require an oath to the Queen or to the Crown as well as an oath of loyalty to New Zealand. The wording is as follows: ``I will be loyal to New Zealand and will respect its democratic values and the rights and freedoms of its people.''
The Chairman: I did ask the clerk to see if Mr. Audcent is around in case anyone wanted to ask legal questions.
Are there questions for Ms. Furi?
[Translation]
Senator Robichaud: I saw a report on television about a swearing-in ceremony in Toronto. In the text of the oath, the people swore or solemnly affirmed allegiance or at least referred to the Queen and also to Canada. We could perhaps base our oath on this, and look into its origin, development and implementation.
[English]
Ms. Furi: I did follow up with the City of Toronto and was unable to find an answer as to what exactly the text of the oath was and what procedures they have. I called twice. I spoke to someone last week and then followed up again this morning, and no one has returned my call yet. We are in the process of finding out.
The Chairman: Was this the City Council as opposed to the legislature that you were thinking of?
Senator Robichaud: I think it had to do with the chief of police. It must have been with the council of the City of Toronto.
[Translation]
Senator Lavigne: You said there was a reference to the Queen of Canada in the documents you sent us. When senators are sworn in, there is no reference to the Queen of Canada, but to Queen Elizabeth II. You say that in New Zealand people swear allegiance to the Queen, but not to the country. However, you mention states where allegiance is sworn to the country. They include Malaysia, the Czech Republic, India, Jamaica, Liberia, Namibia, Nigeria, Pakistan and others.
You also say that if senators were free to choose the oath of allegiance, that would create two categories of senator. Since the Charter of Rights and Freedoms guarantees freedom of choice for Canadians, it is quite reasonable to let each senator decide on the type of allegiance he or she prefers, whether it is to the country, the Queen or both. I do not think that would create two types of senator.
I tabled a motion in the Senate that was supported by 554,800 people. They recommended that an oath be sworn to the country. I am surprised to see that these documents were not distributed to committee members for everyone's information about countries where people swear allegiance to the country. These people who wrote in support of my initiative represent all backgrounds, age groups and provinces. The sovereignist pressure in Quebec strengthens my desire to have this motion brought forward.
In the certificate we received, there is a reference to ``Her Majesty Queen Elizabeth II.'' When we are sworn in as senators, the word ``Canada'' is mentioned six times in the preamble, but when we take the oath, we never say the word ``Canada'' once. I am sad that we swear allegiance to the Queen but not to our country. So many Quebeckers are seeking a country. And yet, we have one, and we should be concerned about it. It is up to us as representatives of the people of Canada in the Upper Chamber to take the first step.
[English]
The Chairman: I am wondering whether that is more of a speech, or is it a question to Ms. Furi?
Senator Lavigne: There were two questions and then there was a speech.
Ms. Furi: Regarding the comments about whether there would be two classes of senators, I am not presuming that is the case. That was just put there for areas that you may want to consider when you are deciding procedurally where this would fit in. That is a question for the senators. I was not presuming that there would be two classes. That was just something put out there for consideration.
Mr. James R. Robertson, Principal, Law and Government Division, Parliamentary Information and Research Service, Library of Parliament: With respect to Senator Lavigne's point about other countries that do have an oath which includes an oath to the country, there was some preliminary research prepared for Senator Lavigne that we did not include in this briefing note. We were dealing more with the usual Commonwealth countries. We are getting copies of the longer briefing note that includes the oath of loyalty or oath of allegiance taken in other countries around the world. We will have that available by the end of the meeting or it will be circulated this afternoon.
The Chairman: I imagine what you will find is that for member states the Queen is recognized as the head of the Commonwealth but not as the head of state.
I have one other question on his preamble. Perhaps it is not fair to ask Ms. Furi these questions. Have we located Mr. Audcent yet?
Mr. Blair Armitage, Clerk of the Committee: His deputy is on the way.
The Chairman: In the preamble to Senator Lavigne's question, I think the reference was that senators would have a choice; but as I understand the Constitution Act, we do not have a choice. We must take the oath of allegiance to the Queen. As to whether you can also take another oath, which the rules would provide for, without reopening the Constitution Act, do you agree with that?
Senator Lavigne: Yes.
Mr. Chairman, judges swear an other to the Queen and to Canada. All new immigrants swear an other to our country, Canada. We are senators and we do not swear an oath. That is hard to understand.
Senator Maheu: I did not like what I read in some of this briefing from the Library of Parliament.
As an anglophone from Quebec, we feel a lot differently from many anglophones elsewhere in the country. I have lived almost as a francophone, being frustrated by the fact that half of our population feels the way Senator Lavigne feels and the way I feel, by the way. I know exactly where he is coming from. I fought the battle of the Canadian flag on post offices. I am still fighting it. Every time I pass a post office with a ratty Canadian flag, I stop and give them another one and make sure they put it up.
It is hard to be a federalist in Quebec. I know where Senator Lavigne is coming from. He has refused, the way I have, to assist at citizenship ceremonies until they put up a Canadian flag.
The Library of Parliament is giving us things for consideration. If the motion is amended to replace the word ``shall'' with ``may,'' I think that is where you are forming two classes of senators. It has nothing to do with Senator Lavigne's proposition. If some of us say ``may'' and some of us say ``shall,'' you have two classes of senators. I totally agree.
Senator Andreychuk: That is Senator Day's amendment, not hers.
Senator Maheu: I am sorry. It is not an amendment. It is a suggestion, if we amend, and just opens that hypothesis. My question is, why would the Library of Parliament put forward something like this for consideration? We have come to appreciate what the library does for us. It bothers me to read something like this.
Ms. Furi: We put it in there because it was a suggestion that came up during debate. All we were trying to do was to provide the information that this was out there. It is something for your consideration. It is not meant to prompt any decision either way.
Senator Robichaud: It was not a suggestion. It was something moved in the Senate that we consider. It is before us.
The Chairman: It was there properly for them to respond to because of the motion.
Senator Eggleton: Ms. Furi, I understand the necessity of complying with the Constitution Act and swearing allegiance to the Queen, but I take it that the possibility of a second oath, such as the one that is used in Quebec, is not a violation of the Constitution.
The Chairman: Mr. Audcent's deputy is now with us and I would ask him to join us at the table. If we are getting into legal questions, I think it is fair that he be part of the group.
Will you repeat your question?
Senator Eggleton: I understand the need to comply with the Constitution Act and swear allegiance to the Queen, but is having a second oath such as they have in Quebec a violation of the Constitution? Is there any reason why we could not have a second oath?
Mr. Michel Patrice, Parliamentary Counsel, Legal Services: I will speak to this motion and this requirement. I would not want to answer for the provincial legislature and the way it passes laws and whether its laws are valid.
If we look at the motion, there is an argument putting a further requirement in the body of laws or in the Rules of the Senate that what is required in the Constitution would be contrary to the Constitution.
The text of the motion reads: ``after taking his or her seat.'' The text of the Constitution reads: ``before taking his or her seat.'' Basically, the senator will be entitled to take his or her seat regardless of whether he or she took that oath.
I do not know if committee members are still at the ``shall'' or the ``may'' aspect of the motion, whether a senator has the discretion to take the particular oath. However, an individual will be qualified to sit as a senator if he or she takes the oath included in the Constitution, because it is before taking his or her seat. In this scenario, it is after taking the seat, so the senator has the right to sit.
If the motion were amended to say ``shall'' and the senator refused to take the seat, then it would be a matter for the senator consider. It would be for the Senate to determine whether the senator is in contempt of the Rules of the Senate, but he or she would still be entitled to take the seat. I do not know if that answers the question.
Senator Eggleton: Not really, but let me ask another question.
When I first received a communication from Senator Lavigne about this matter, he was endeavouring to add to the existing oath the words ``and to my country, Canada.'' Is there anything unconstitutional about adding those words to the oath?
Mr. Patrice: If it was to be added to the fifth schedule of the Constitution of Canada, then an amendment to the Constitution itself would be required.
Senator Cools: Of course.
Senator Eggleton: Are you saying that adding the words ``and to my country, Canada'' is offensive to the Constitution?
Mr. Patrice: The Constitution provides specifically the oath that is to be taken. By adding words to the oath of allegiance, you would want to add to the formula provided in the Constitution.
Senator Eggleton: You are still saying the words that are in the Constitution. You are still saying those words. These would be add-on words.
Mr. Patrice: Yes, but they are clear words, and it is a clear formula that needs to be said. You are basically changing the formula. Although it may be quite consistent with the formula, it would still be changing the words of the formula, so you need to amend the Constitution.
Senator Fraser: The point is, just for affirmation, that Senator Day's amendment did not come to a vote. It is on the floor, along with everything else.
Senator Jaffer: You mentioned a number of republics that had adopted a statement, but as Senator Smith said, they do not consider the Queen their head of state. That is why they can mention it. That is a little different.
Senator Lavigne: Some swear to the Queen and swear to the country.
Senator Jaffer: For example, Pakistan is a republic. The Queen is not the head of state.
Senator Joyal: I have tried to reconcile many elements involved in Senator Lavigne's proposal, especially on the basis of what Senator Eggleton has mentioned about how to differentiate between the various oaths that someone can take before taking his or her seat.
I started with the original wording of the Constitution, which is pretty clear. As mentioned in the document provided by the library, the wording in the text of the Constitution is a legal formula. Being a legal formula, you are bound by it. You cannot change it unless you go through the constitutional process, and everyone around this table knows what that means. The wording of the Constitution says quite clearly: ``I do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II,'' the present formula.
To me, the key word is ``allegiance.'' The Constitution requires that we swear our allegiance to the Queen. You must understand what the word ``allegiance'' means, because the word is constitutional. The concept of the words we are using is constitutional. It is not the plain language. It is the word ``allegiance'' in the constitutional context. Words and Phrases, third edition 1998, London: Butterworths, defines ``allegiance'' as follows:
Allegiance is by statute due to the Sovereign, whether the rightful heir to the Crown or not, and the subjects are bound to serve in war against every rebellion, power, and might reared against the Sovereign, and are protected in so doing from attainder of high treason and from all forfeitures and penalties.
That is the origin of the word ``allegiance'' in our Constitution. The question which is a corollary to your own questions is, can we have two allegiances constitutionally?
Senator Cools: No.
Senator Joyal: My answer to that question is no. You have one allegiance in the present Constitution.
Then we come to Senator Lavigne's question. Can we have an oath to Canada? My answer is yes. We can have an oath to Canada, but to me, constitutionally, we cannot use the word ``allegiance'' to Canada.
I then asked myself, what is the proper word? The proper word, according to the legal definition, is ``loyalty.'' The word ``loyalty'' has a different meaning. The word ``loyalty'' means that which adheres to the law, or that which sustains an existing government. That is essentially Senator Lavigne's idea, to sustain Canada, its integrity and its institutions. The way I understand his intervention, that is what he has in mind.
In my opinion, we could swear or pledge our loyalty to Canada and, I would add, to uphold its Constitution, which is then, of course, a second oath. You would pledge your loyalty to Canada and you would uphold its Constitution. You can add a third element to the oath, which would be that you will serve its people with honesty and integrity to the best of your ability.
That is a possible way, in my opinion, to meet Senator Lavigne's objective, which is essentially to commit ourselves to the country in the respect of the Constitution.
The Chairman: What we might do is have Mr. Patrice react to that comment.
Senator Joyal: I can circulate the text.
The Chairman: Certainly.
Mr. Patrice, have you chance to look at the text yet?
Mr. Patrice: No, I have not.
[Translation]
Senator Corbin: Is it not true, Mr. Patrice — and I maintain it is — that individuals who take the constitutional oath must, by definition, be Canadian citizens?
Mr. Patrice: That is true.
Senator Corbin: And is it not accurate to say that this citizenship is acquired naturally by being born in Canada or by taking an oath of citizenship?
Mr. Patrice: Yes.
Senator Corbin: I come now to my second question. In Quebec, there is no Quebec citizenship as such, under the Constitution. All citizens of Quebec are Canadian citizens.
Mr. Patrice: That is correct.
[English]
The Chairman: That completes our list of questioners, and we will now turn to comments.
Senator Eggleton: I would hope we could find a way to do this within the Constitution Act and without detracting from the oath that we take to the Queen. It is appropriate to give allegiance to the Queen.
I like what Senator Joyal has been talking about. He has researched the matter and come up with words. I hope those words will prove to be acceptable to the lawyers: ``I do swear or solemnly affirm that I pledge my loyalty to Canada and I will uphold its Constitution, that I will serve its people with honesty and integrity, to the best of my ability.'' It is a good phrase to adopt in addition to that which is required.
Some people may argue that when you take the oath of allegiance to the Queen, you are in effect making it to Canada. I think most Canadians would not understand it in that context. Most Canadians would prefer to see, if they care at all about this, an oath to Canada. Most people, when they become citizens or are doing something else in regard of taking an oath, would understand an oath of loyalty to the country. I believe we should reflect what most citizens would think would be the right thing to do.
I certainly do not want to get into a constitutional problem here because we know that is a messy situation. We certainly want to abide by the Constitution. I do not see why we cannot have an oath of this nature that will show loyalty to our country and to serving its people. It is most appropriate and I hope that we will adopt it.
The Chairman: It is my understanding that, in terms of our legal officers, it has been Mr. Patrice who has done the research on this rather than Mr. Audcent. It is the right thing for him to be here.
You have Senator Joyal's suggestion in front of you. You do not have to give a definitive opinion off the top of your head because I do not think we will complete this item today. We may be reconvening next Tuesday. Perhaps we could have a written opinion then, and you can give it some thought. We will invite you to give your reaction.
Senator Fraser: I, too, am a federalist from Quebec, like others in this room. I have spent many years dedicating all my energies to the preservation of this country. For that reason, I have an emotionally favourable response to this proposal. However, when I think about it in terms of the Senate, then I start to have doubts. I cannot say that I am adamantly opposed to it, but I have serious doubts.
Let me say in parentheses, if we go forward with this motion, I would like to use Senator Joyal's proposal for the wording, which I think avoids some pitfalls.
If we go with the original motion, the oath that Senator Lavigne or Senator Joyal proposes becomes compulsory, which is a shift of a very high order. This is not just a little rule about conduct and the Senate regulating its business internally. This is in effect setting up a whole new condition for membership in the Senate. It does not have to do with organizing your financial affairs appropriately or turning up for committees. This goes to the heart of what you believe and affirm.
It is what I believe and am willing to affirm on all occasions, but I have qualms about deciding by a simple change to the Rules of the Senate on what amounts to a new qualification for membership.
I am not the one who raised this issue in the chamber, but if it is not obligatory to take this oath, I think it is very pertinent that we go to the two classes of citizenship. Again, those of us who have lived in Quebec know what that climate is like. Are you a true Canadian or not?
There could be many reasons why people would choose not to take an oath. That does not mean this person was an insipient traitor. They are making an oath to the Queen. Maybe they just do not like taking oaths. Maybe they will do the minimum, but they do not want to take any oaths they do not have to take. Some people just do not believe in taking oaths.
What we are considering here is something more profound in institutional terms than the simple affirmation of loyalty to the country that we all find attractive.
Senator Andreychuk: I am confused as to where we are going on this topic. The committee had a motion referred to it and we were to talk about whether it complies or does not comply.
If we are going to try to modernize the oath to appease a certain constituency that does not understand the Queen of Canada, then I think we have opened up a whole new debate, as Senator Fraser has said, which has all kinds of consequences for the Senate, for senators and for citizens. I am perfectly willing to get into that debate, but I am wondering whether we are doing it the right way.
Since we are talking about the legislative arm of our system, I think that citizens would have an awful lot to say and should have a say about how we change our senators and their obligations and allegiances than by simply moving motions. We need to have a true debate about that in Canada.
I think Australia has had that debate. They hit it dead on by addressing whether it is a republic or not. Everyone was engaged, and they came up with their own answers. Perhaps it was not satisfactory to everyone.
I am wondering how we are going to conduct our business so we can talk to each other as opposed to bringing in new issues all the time.
At some point I would like to deal with what Senator Joyal has said. I have a different point of view from the one he has expressed, and perhaps we will need a host of constitutional lawyers to assist us.
When I pledged allegiance to the Queen, I thought that I was pledging allegiance to Canada and everything that means to me. Therefore, I am not as certain as is Senator Joyal. I think there is a difference between the word ``loyalty'' and the word ``allegiance.'' The question is, where do they overlap and what do they mean to us? When I swear allegiance, I also give my loyalty. I think it is a very fundamental question.
In addition, if I am going to pledge my loyalty to Canada, what does the term ``Canada'' mean in this case? We will have to have a definition of Canada. Is it the Government of Canada? Is it the head of state of Canada?
I am getting a hint of where Senator Joyal wants to go with that definition because he is talking about upholding the Constitution. It seems to me that is what allegiance to the head of state means; Canada, the rule of law and the Constitution. There are many ways of looking at this issue.
Senator Joyal's wording states that ``I will serve its people with honesty and integrity.'' I question why we would put it that way if I am pledging my loyalties to the best of my ability, which I think inherently is doing the best I can.
Why have we singled out honesty? Are there those who pledged allegiance but did not pledge to do their job to the best of their ability? I would have hoped that is what the pledge of allegiance is all about.
Senators, this is a massive topic, and I would like the chair's direction as to how we are going to go about our business.
I appreciate that today is an airing of the issue, but we need to zero in on our objective. Is it the motion alone or is it a discussion of modernization?
The Chairman: That is the subject.
Senator Andreychuk: It is a massive one, then.
The Chairman: It is massive, but it is properly before us. Senator Joyal has given some thought to what might be referred to as an alternative approach on basically the same subject. It would be good for us to find out where everyone's heads are.
When you were talking about allegiance, I was thinking that allegiance might be like beauty in the eye of the beholder. Some of these things are almost rhetorical questions by nature.
[Translation]
Senator Chaput: I would like us to find a solution that is not too complicated which nevertheless takes into account the constitutional aspect. To begin with, I have no trouble taking an oath of allegiance to the Queen. However, at the same time, I would like to be able to affirm our loyalty to our country. I liked very much what Senator Joyal said. Of course, I am not as familiar with the Constitution as you, I do not have all the experience you have. It seems to me there must be a way of doing this.
When the offer of a Senate appointment was made to me, the Prime Minister telephoned me and asked me whether I was prepared to serve my country. I came to the Senate with the firm intention of serving my country to the best of my knowledge, even though I knew that I would have to swear allegiance to the Queen.
I would like to congratulate Senator Lavigne for raising this very broad subject. I would like to thank Senator Joyal for his explanations, which helped me understand the constitutional aspect of the process. I would like us to find a solution that allows us to affirm our loyalty toward both our country and our Queen. I confess that I would have difficulty understanding how a person could accept a position as senator and not affirm their loyalty to Canada at the same time. We are in the Senate to serve Canadian men and women.
[English]
Senator Cools: I would like to situate myself among the group of people questioning both this motion and the very fact that it is before us. Senator Joyal's proposal, though attractive, does not meet the constitutional requirements of senators. To my mind, were it to be adopted, it would cause many problems.
I have done a lot of work on the BNA Act over the years. It is wrong to claim that the BNA Act prescribes an oath of allegiance. What the BNA Act prescribes is the form of the oath of allegiance. In other words, the notion of allegiance and the law of allegiance predates the BNA Act. Section 9 of the BNA Act states:
The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.
The intention of the BNA Act was to preserve the current state of affairs.
I would hasten to add, honourable senators, that the office of Governor General in Canada is not constituted by the BNA Act. It is mentioned in the act, but the office of the Governor General is constituted by Royal Letters Patent directly from Her Majesty or His Majesty in England. This is a matter that is quite often overlooked.
The term ``allegiance'' originates from the Norman French term ``liege Lord.'' A liege was a lord to whom allegiance and service were due under feudal law. Jewitt's Dictionary of English Law defines allegiance as the natural, lawful and faithful obedience which every subject owes to the supreme magistrate, who will not overstep his or her prerogative. It is the tie or ligamen that binds the subject to the sovereign in return for that protection which the sovereign affords the subject.
Allegiance in a monarchy is about that very individual and peculiar relationship or bond that is supposed to exist between the sovereign and subject. For this reason, there is always a place within our British systems of Parliament where that subject can petition Her Majesty or His Majesty, particularly in all the Commonwealth systems.
A fair amount of literature has been written on the question of the law of allegiance. These were not simple matters. If you look to documents such as The Articles of Capitulation following the battle on the Plains of Abraham, you find the tossing out of the law of allegiance in those documents.
Honourable senators, we are in a little over our heads. The oath of allegiance is only half of the total process. The other half is the coronation oath. The oath of allegiance prescribes what the subject owes to the sovereign, and the coronation oath prescribes what the sovereign owes to the subject.
For the most part, for as long as Canada has existed, the form of the oath has been included in most constitutional documents prior to the BNA Act. It was in the Act of Union of 1840. If you go back even earlier, it was in the Quebec Act and the Constitution Act of 1791.
This is not a simple matter, nor is it a matter of mere sentiment. Those senators who think it would be very nice for Canadians to take an oath to Canada are expressing sentiment. The fact of the matter is that there is no limit to where the borders of the country we call Canada will be.
The notion is that allegiance rests with the sovereign, whatever the boundaries of the realm may be. This allegiance is connected to a whole host of other issues, such as who can press men and women into action to fight, who can raise taxes or who can try you in a court of law. We are talking about an entire system.
I would submit, honourable senators, that before we get ourselves into deeper water, we need to look at some of these questions. I believe that the proposal before us is one more step in the persistent and consistent undermining of the constitutional system of Canada.
Honourable senators should note that this form of oath does not say ``and to the heirs and successors,'' as the traditional oath used to say. There are reasons for that. This particular oath, as prescribed for MPs and for senators in the BNA Act, is supposed to last the lifetime of the sovereign. If there is a demise of the sovereign, members of Parliament are expected to take a new oath. This practice has a long history, and it is in place for a number of reasons. I would submit that we are treading into sentiment.
I would like to refer back to Bill C-20, called the clarity bill, which was passed before us. Many senators in this place, of whom I was one, believed that Bill C-20 was treasonous. However, the bill was still passed. Bill C-20 made it clear that the boundaries of Canada are not fixed.
Bill C-20 provided a formula under which Canada as a country could be dismantled. The mere fact that Bill C-20 became law signifies that the Canada of today may not be the Canada of yesterday, and it may not be the Canada of tomorrow. It is wrong and unlawful to suggest for sentimental reasons that you can take an oath of allegiance or a pledge of loyalty to a country that you admit by your other laws is changing or is capable of changing.
Consider those my initial thoughts on the matter. I believe that what we are doing here is quite unconstitutional.
The Chairman: Freedom of speech is not unconstitutional.
Senator Andreychuk: Senator Joyal and Senator Cools have done a excellent job outlining the history of this matter. I appreciate hearing from both perspectives.
I have heard compelling reasons from a Quebec point of view as to why this may be helpful. However, there is a compelling reason not to do this without full public disclosure and discussion, and that is the Aboriginal community. Aboriginals have always held a very special bond with the Queen, and that is how they interpret their rights, allegiances and loyalties. If we are going to add or subtract, I would like to reflect on what it will mean to the Aboriginal community, because a willingness to modernize our obligations has an impact on the Aboriginal community. We well know that from our constitutional debates, which some of us are old enough to remember. That is another dimension of the issue we had better canvass.
The Chairman: Senator Lavigne, do you want to give a one-minute response?
Senator Lavigne: Yes. I wrote a letter to all the senators who were appointed a few months ago asking them if they want to swear allegiance to Canada. They all answered in the affirmative. Some of them wrote to the leader and to the clerk saying that they wanted to swear allegiance to Canada, and the leader and the clerk had to explain why we do not do that. Senator Eggleton was one who wrote to the leader and the clerk.
I surveyed 554,000 people on this matter. In any survey done in Canada it is normal to inquire of 3 per cent or 4 per cent of the population. I conducted this survey over about eight months, and I included only a couple of organizations.
I am sure that all the people of Canada would like to know why we do not swear allegiance to our country, which belongs to us.
Senator Andreychuk said that Aboriginal people will be confused with this oath. I do not think so. I think they like both the Queen and the country.
The Chairman: Mr. Patrice, would you like to give us your initial reaction to both proposals, or would you prefer to do so in a considered way in a written report?
Mr. Patrice: I will take the time to reflect and look at both proposals.
The Chairman: That is wise.
I sense that most members of the committee, although not all, would like this matter resolved, but it must be done constitutionally, without breaking any rules and becoming subject to court challenges. Therefore, we will invite a report.
Perhaps after Question Period today Senator Johnson, Senator Joyal and I could huddle to discuss whether we might like to hear from one or two authorities. We may not necessarily do that, but we could chat about it. Whatever we do should be well thought out, well considered and well informed.
Senator Joyal: I want to add two points to the question raised by Senator Andreychuk. The oath of allegiance presently in the Constitution says: ``I do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II.'' There is no title included; it says only ``Queen Elizabeth II,'' not ``Queen of Canada.'' It is a personal oath.
Senator Andreychuk: Absolutely, to the head of state.
Senator Joyal: That is why I believe it is important to understand the starting point. Section 128 of the Constitution provides very clearly that every member of the Senate shall, before taking his seat therein, take and subscribe the oath of allegiance contained in the fifth schedule. It is clearly stated in the Constitution.
Second, ``loyalty'' has a definitive legal meaning. The Constitution says, ``Loyalty: Attachment to the person of the reigning sovereign does not complete the idea of loyalty but, as the word itself imports, attachment to the law and to the Constitution of the realm.''
Therefore, loyalty is a concept that expresses the attachment to the realm, the realm being the domain over which the Queen exercises her sovereignty, and, of course, attachment to the law, to the Constitution; in other words, the convention, the system of Parliament, and everything else.
The words ``I pledge my loyalty to Canada'' mean that I will express my attachment to the law and to the Constitution as it is in Canada with all its traditions, conventions, et cetera.
The word ``loyalty'' certainly has a different meaning than ``allegiance.'' As Senator Cools has properly said, ``allegiance'' is really attachment to the person, while the word ``loyalty'' imports attachment to the law and to the constitution of the realm.
I think the two concepts can live together. When we say ``uphold this Constitution,'' it upholds everything that is included in the Constitution of Canada, 1982. If you say that will you uphold the Constitution of Canada, you uphold a constitutional monarchy, which Canada is. You do not need to say that you will defend the constitutional monarchy; you say that you will uphold its Constitution. It encompasses the entire system of how sovereignty is exercised in Canada and entrenched in our various institutions.
As Senator Andreychuk said, many concepts are included, and when you try to enshrine them in a limited number of terms, you must be precise in your choice of wording to ensure that you do not overlap and contradict yourself.
Senator Andreychuk: The dilemma is that we have taken one oath, and there is a body of law, an understanding and a convention as to what it means. If we introduce this new oath, we had better be certain about what it means and it consequences because there will be a debate on the two pledges.
Senator Fraser: My problem with using the rules to set up a new qualification for membership in the Senate might be addressed if, in the course of your deliberations and planning, you check out the possibility of changing the constitutional oath that senators take. I think it is possible for Parliament to amend portions of the Constitution that apply only to Parliament.
I am not a lawyer. I do not know. Please check that out.
Senator Cools: No, we could not touch that. That is crazy.
The Chairman: That is a hard sell, Senator Fraser. Mr. Patrice has heard it and we will have his report next Tuesday.
I had hoped to deal with the report on the new numbering system, but we do not have time to do that today. It would not
come into effect until the next session anyway, so it does not matter if we deal with it next week or, frankly, in September.
The committee adjourned.