Madam Speaker, I am pleased to speak on Bill C-201 which was tabled by the hon. member for Carleton-Gloucester. Constitutionally speaking, I have a problem with this bill. Pursuant to section 52 of the Constitution Act, 1982, "the Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect".
What exactly is the relationship between the Constitution of Canada and the oath of allegiance? The provisions respecting the oath of allegiance are contained in section 128 of the Constitution Act, 1867 which I will take the liberty of reading. Section 128 of the Constitution Act, 1867, which most of us know as the British North America Act, reads as follows:
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, and every Member of a Legislative Council or Legislative Assembly of any Province shall before taking his Seat therein take and subscribe before the Lieutenant Governor of the Province or some Person authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act.
The fifth schedule reads as follows:
I, A.B. do swear, that I will be faithful and bear true Allegiance to Her Majesty Queen Victoria.
Of course, in accordance with the law governing succession to the throne, the reference to Queen Victoria includes all of her heirs and successors. This is the sole requirement for sitting in this House that is set out in the Constitution of Canada. And, as we have seen, the Constitution is the supreme law of Canada.
The hon. member for Carleton-Gloucester is proposing, through a simple bill, to amend section 27.1 of the Parliament of Canada Act by the addition of the following: "No person holding a seat in the House of Commons shall sit therein nor shall any funds be made available to such a person for the carrying out of parliamentary functions unless the person, in writing, has taken the oath or made the solemn affirmation provided for in Schedule II before the Governor General or any person authorized by the Governor General to administer such oath or solemn affirmation".
Schedule II of Bill C-201 reads as follows:
I, --, swear that I will be loyal to Canada and that I will perform the duties of a member of the House of Commons honestly and justly in conformity with the Constitution of Canada.
Clause 27.1 of this bill states very clearly that no member can sit in this House unless he or she takes this oath. Enacting a statutory law is certainly not the way to go about changing the oath of allegiance. What we need to do is amend the Constitution of Canada, just as a member of Parliament, Mr. Keyes, attempted to do during the third session of the 34th Parliament with Bill C-270, An Act to amend the Constitution Act, 1867 (oath of allegiance).
It is clear that unless the Constitution of Canada is amended, and since section 128 applies not only to the federal government, but to the provinces as well, the amending procedure that applies here is unquestionably the one set out in section 38 of the Constitution Act, 1982, that is the 7/50 rule which requires approval of seven provinces representing 50 per cent of the population. Curiously enough, we are not moving in that direction. We therefore have before us a bill that would be futile at best since it would contradict Canada's existing Constitution.
Some of the comments made by the hon. member for Carleton-Gloucester about the merits of his bill surprised me a little. He told us that the oath of loyalty to the Crown prescribed in Schedule V of the 1867 Constitution could apply to His or Her Majesty as head of the Commonwealth. There is a timing problem. When we look at the situation, we see that there is an anachronism somewhere for, when the Constitution Act of 1867 was enacted, the Commonwealth did not exist. How could it have been possible in 1867 to consider a measure applying to the Queen as head of the Commonwealth when the Commonwealth was formed almost 100 years later?
It also ignores the whole evolution of the monarchy in Canada, from the imperial conferences of 1926 and 1930 and the 1931 Statute of Westminster to the Constitution Act of 1982 that definitely Canadianized the monarchy.
It is now clear that the monarchy in Canada is solely dependent on the will of the Canadian Parliament and the Canadian people. We are not subjected to any foreign monarchy. Our oath of loyalty to the Queen is undoubtedly directed at the Queen of Canada, and only Canadian parliamentarians can swear allegiance to the Queen of Canada. This oath is not required of parliamentarians in Australia, Great Britain or New Zealand who swear allegiance to their Queen; we are the only ones affected.
Canada is not a republic where the official oath is usually directed at the state. It would be rather surprising to see French parliamentarians, for example, swearing allegiance to President Mitterrand. They have to swear allegiance to the institutions of the Fifth Republic. It is the same thing in the United States of America.
In a monarchial system of government like ours, the Sovereign, the Queen of Canada, is the embodiment of the state as the official head of the Canadian state.
Like Louis XIV, Her Majesty the Queen could say, "I am the state," subject, of course, to the limits imposed by the Constitution since we live in a constitutional monarchy.
Swearing allegiance to Her Majesty Queen Elizabeth II as Queen of Canada is the same as swearing allegiance to Canada, everyone having their own definition of Canada. Is it the Canada of 1867 with its four provinces? Is it the Canada that existed prior to 1949 without Newfoundland? If this oath had existed, would it have been possible to allow Newfoundland to join the Canadian federation if we had sworn to keep the oath's status quo? Is this a way of singling out the members of the Official Opposition, who want to promote and eventually achieve Quebec's sovereignty in a democratic fashion and by respecting
clearly established constitutional conventions and the right of peoples to self-determination?
Those are questions I ask myself and to which I have no answer. We have always been comfortable since we have always said that we would respect the current system as long as it remains unchanged, as well as its institutions. We are showing it every day in this House, and such an oath, even though it can be voluntary, cannot in my opinion encroach on the provisions of the 1867 Constitution which are unusually clear.