Madam Speaker, I rise today to address Bill C-347, an act to amend the Constitution Act, 1867 regarding the oath of office. The bill would, as its proposer said a moment ago, if enacted, amend section 128 of the Constitution Act, 1867 to allow individuals who have been elected to the House of Commons or appointed to the Senate to select between three different oaths of office.
The first option would be, “I ... do swear that I will carry out my duties in the best interest of Canada while upholding its Constitution”; the second option would be the oath of office that has been required since Confederation, which is, as the member noted, “I ... do swear, That I will be faithful and bear true Allegiance to [His Majesty King Charles III]”; and the third option would be to take both oaths.
I have personal views on this subject, but I am going to put them on hold, because I think it is important to address the constitutional technicality of how the bill is being proposed.
Let me start by observing that a version of the current oath is contained in the fifth schedule to the Constitution Act, 1867, where it is written as follows: “I A.B. do swear, That I will be faithful and bear true Allegiance to Her Majesty Queen Victoria.” The following wording is also contained in the fifth schedule: “The Name of the King or Queen of the United Kingdom of Great Britain and Ireland for the Time being is to be substituted from Time to Time, with proper Terms of Reference thereto.”
The fifth schedule is referenced in section 128 of the Constitution Act, 1867, which declares, “Every Member of the Senate or House of Commons of Canada shall before taking his Seat therein take and subscribe before the Governor General or some Person authorized by him ... the Oath of Allegiance contained in the Fifth Schedule to this Act”.
The next legal technicality to remember is that the Constitution Act, 1867 is a part of the Constitution of Canada, and therefore any change to the act, including a change to section 128, to the fifth schedule or to both can only be made if it conforms to the amending formulae that govern how such constitutional amendments can be made. These amending formulae are contained in sections 38 to 49 of the Constitution Act, 1982. There are five different amending formulae.
The most restrictive amending formula applies to a narrow list of subjects that can be amended only by means of identical resolutions adopted in Parliament and in the legislatures of all the provinces. A second formula provides that in other cases the Constitution can be amended by means of identical resolutions adopted in Parliament and in the legislatures of at least seven provinces with at least, together, half the population of the country. A third formula provides that in the case of amendments that affect some provinces but not others, the Constitution may be amended by means of identical resolutions in Parliament and in the legislatures of the affected provinces, but not in the rest of the provinces.
A fourth formula is of particular interest. Section 44 of the Constitution Act, 1982 states, “Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.” Finally, section 45 provides for the legislatures of each province to have the ability to “exclusively make laws amending the constitution of the province.”
Although the assertion is nowhere made in Bill C-347, it is clear that a claim is implicitly being made that this amendment to the Constitution would be made under the authority of the section 44 amending formula, as the oath of office is, in essence, asserted to be an aspect of the Constitution in relation to the House of Commons and Senate of Canada, which, as we will recall, was specifically referenced in section 44. Thus, the claim is being made that the oath can be altered by means of a simple act of Parliament.
I can certainly understand why this is being asserted, but I am not certain that this assertion is accurate. I note that a similar claim was made only a little over a year ago, when on December 9, 2022, the National Assembly of Quebec enacted a bill that abolished the traditional oath of allegiance to the monarch, the wording of which was identical to the oath for MPs and senators. As with the federal oath, the oath for provincial legislatures is mandated in section 128 of the Constitution Act, 1867 and is spelled out in the fifth schedule to the act. The Quebec law replaced this with something very similar to the federal oath proposed in Bill C-347: “I, (name of the Member), declare under oath that I will be loyal to the people of Québec and that I will perform the duties of Member honestly and justly in conformity with the constitution of Québec.”
This was not an uncontroversial bill. Constitutional experts lined up on either side of a dispute as to whether or not the Quebec legislature could, under authority of section 45 of the Constitution Act, 1982, unilaterally amend the oath of office. Some experts said yes, some said “no, you cannot actually do that without resorting to one of the other amending formula” that require broader consent.
I note that in favour of Quebec having acted constitutionally, we see that, in the literature I was able to consult, Leonid Sirota, Patrick Taillon and Frédéric Bérard all think this was constitutionally warranted. Ian Peach, Emmett Mcfarlane, André Binette, Yan Campagnolo, Errol Mendes, Steve Chaplin and James Bowden feel differently. They think this was not, in fact, constitutionally done.
I recognize that the issues in the Quebec bill and Bill C-347 are not identical. They refer to similar but not identical sections of the Constitution Act, 1982. Nonetheless, they are obviously very similar, and it would be reasonable, in advance of approving this bill at third reading, for some of the experts who weighed in on Quebec's legislation, both for and against, to be invited to testify in committee on Bill C-347.
In the event that the resulting expert testimony does not produce a consensus that it is permissible to make such a change under authority of the unilateral section 44 amending formula, it might make sense to take the additional precaution of submitting a reference question to the Supreme Court of Canada. A reference question is a seeking out of an advisory opinion from the court as to whether a proposed law is in fact constitutionally permissible.
This would not be the first time that a government of the day has sought an advisory opinion from the court as to which amending formula is appropriate to use in this or that circumstance. For example, in 2014, when the government of the day was considering changing the Constitution with regard to how senators are selected, the Supreme Court ruled that in respect of some of the changes that were being proposed, the unilateral section 44 formula would work and in other cases, the formula that requires the consent of seven provinces would be required.
At that time, to be honest, I did not agree with all of the opinions offered by the court in its ruling, but that is not the point. The value of having a Supreme Court is not that the court is always right, it is that the court's opinion is always final. Having rules that are of indisputable authority is the key attribute of the rule of law.
To be sure, it may well be the case that all of this is only of technical importance. One could point out, quite accurately, the fact that some members of Quebec's National Assembly, right now, have been sworn in on the basis of an oath that may have been unconstitutionally adopted but that this does not keep them from carrying out their duties as MNAs and that nobody doubts they are legitimate officeholders. This would, presumably, also be true of MPs swearing the oath that is described in Bill C-347. That these MPs would be legitimate officeholders would remain true even if, at some future date after they are sworn in, the Supreme Court were to rule that Bill C-347 had been enacted by means of the wrong amending formula and therefore their oaths of office had been invalid all along.
How do I know this? Well, I know it because a version of this exact problem actually arose, once upon a time. In 1875, an embarrassed House of Commons discovered that George Turner Orton had been sitting for some time as the member for Wellington Centre, despite having never sworn the oath of office. According to the relevant footnote in the House of Commons Procedure and Practice manual, Mr. Orton explained “that, because he had already sworn the oath, he did not realize that he had to be sworn in again upon his re-election.”
The matter was submitted to a committee, and on March 8, 1875, the committee noted:
that, since neither the Constitution Act, 1867,...nor any other statute provided a penalty in the event a Member omitted to take and subscribe the oath, the Member’s seat was not affected by the oversight. However, the Committee recommended that the votes taken by the Member before he took the oath be struck from the records.
I think life would probably go on as before, even if Bill C-347 were enacted and subsequently found to be invalid because it had been enacted in the wrong manner, and even if the oaths of some sitting MPs were thereby found be likewise invalid.
Canadians are sensible people and we are good at finding ways out of absurd legal conundrums, as we did in 1984 when the Supreme Court found that all laws passed in the Manitoba legislature in English only, for a full century, were invalid and that therefore it was necessary to re-enact them all in a bilingual format. Rather than simply saying there are no laws here, the proposal was made to allow for a staged reformulation of those laws and re-enactment of those laws.
There is a way out of this, but it would be best to actually find out what the law requires of us, what the Constitution requires, and for that reason, I will be urging all of us, if this gets through second reading, to make sure we get a clear indication of the legal authorities prior to going to third reading as to whether this is valid.
