Scott Reid

[Amendments to the Standing Orders of the House of Commons, April 29th, 2024]

Mr. Speaker, I actually have no comments on government legislation. As I observed in my remarks, my goal is to deal with programming motions of closure and time allocations, as they relate to motions to amend the Standing Orders, and absolutely nothing else.

There is an argument that, because of the volume of business before the House, we need to have a limited time for each debate. That is the basis on which each of the successive restrictions on the length of debates were justified in 1913, 1969 and 1991. That may or may not have legitimacy vis-à-vis legislation and other matters before the House; however, vis-à-vis discussions of the Standing Orders, I think there should be no programming motions whatsoever.

The only solution is consensus. That involves taking the time to find consensus and showing the willingness to compromise that may be necessary.

[Amendments to the Standing Orders of the House of Commons, April 29th, 2024]

moved:

That:

(a) in the opinion of the House,

(i) the ability to propose amendments to the Standing Orders is essential to adapt and improve parliamentary procedures and to the rights of members,

(ii) it is crucial to maintain open and transparent debate on proposed changes to the Standing Orders, free from undue procedural restrictions by the government or a subset of members,

(iii) all Members of the House, not the government nor a subset of members, should be the final authority as to how long proposed changes to the Standing Orders should be considered;

(b) it be an instruction to the Standing Committee on Procedure and House Affairs to undertake a study on the advisability of amending the Standing Orders as follows:

(i) by adding, after Standing Order 56.1(1)(b), the following new Standing Order:

“56.1(1)(c) For greater certainty, this Standing Order does not apply to proceedings that propose amendments to the Standing Orders.”,

(ii) by adding, after Standing Order 57, the following new standing order:

“57(2) This Standing Order does not apply to proceedings that propose amendments to the Standing Orders. For greater certainty, the question cannot be put on a motion pursuant to Standing Order 57 that would apply to proceedings that propose amendments to the Standing Orders.”,

(iii) by adding, after Standing Order 61, the following new standing order:

“61(3) This Standing Order does not apply to proceedings that propose amendments to the Standing Orders. For greater certainty, the question cannot be put on a motion pursuant to Standing Order 61 that would apply to proceedings that propose amendments to the Standing Orders.”,

(iv) by adding, after Standing Order 66(2)(c), the following new section:

“66(2)(d) Notwithstanding any other standing order, a motion for the concurrence in a report from a standing or special committee wherein the report proposes amendments to the Standing Orders shall:

(i) in the first instance, be considered until no member wishes to speak, upon which the Speaker shall put all questions necessary to dispose of the motion without further debate or amendment, or until debate is adjourned or interrupted, or for three hours, whichever is earlier, upon which time debate on the motion shall be resumed at the ordinary hour of daily adjournment on the day designated pursuant to paragraph (a) of this section, and

(ii) in the second and any subsequent instances, be considered until no member wishes to speak, upon which the Speaker shall put all questions necessary to dispose of the motion without further debate or amendment, or until debate is adjourned or interrupted, or for an additional three hours, whichever is earlier, upon which time debate on the motion shall again be resumed at the ordinary hour of daily adjournment on the day subsequently designated pursuant to paragraph (a) of this section.”,

(v) by adding, after Standing Order 81(13), the following new section:

“81(13)(b) If the motion proposes amendments to the Standing Orders, a question on the referral of the matter to the Standing Committee on Procedure and House Affairs is deemed put at the end of the debate and, if resolved in the affirmative, it shall become an order of reference to the committee to consider the motion and to report observations and recommendations on the motion back to the House not later than 75 sitting days after the referral”;

(vi) in Standing Order 93(1)(a), by adding, at the end, the following: “If the motion proposes amendments to the Standing Orders, a question on the referral of the matter to the Standing Committee on Procedure and House Affairs is deemed put at the end of the debate and, if resolved in the affirmative, it shall become an order of reference to the committee to consider the motion and to report observations and recommendations on the motion back to the House not later than 75 sitting days after the referral”; and

(c) the committee report its findings to the House no later than 75 sitting days following the adoption of this motion.

The purpose of Motion No. 109 is to ensure that no future government would be able to amend the Standing Orders without the consent of all recognized parties. In the time allocated to me, I will attempt to lay out the case for this motion in three parts.

First, I will explain the mechanics of how Motion No. 109 would eliminate the power to make non-consensual changes to the Standing Orders.

Second, I will explain, in a few words, the danger that exists whenever a majority government has the ability to unilaterally change the Standing Orders, as it currently does. This demonstration will consist of a brief history of unilateral changes to our Standing Orders, in the course of which I will quote some of the warnings given by MPs of all parties during past debates in which closure was used to ram through non-consensual changes to the rules.

Third, I will explain how I propose to ensure that the suggested amendments contained in Motion No. 109 are not themselves forced upon the House in a peremptory vote following the two hours of debate that is typical for a private member's motion. This is, after all, a technically complex issue worthy of discussion, review and perhaps expert testimony at a parliamentary committee.

Now, let us start with the first of these three topics.

Motion No. 109 contains a proposal to amend the Standing Orders in several places, modifying existing provisions that permit the government to unilaterally terminate debate and force a vote. The goal is to create a situation in which it will no longer be possible to apply these debate-limiting clauses to any vote to amend the Standing Orders, but not to limit the existing provisions for closure and time allocation in any other way.

Specifically, Motion No. 109 places limiting clauses immediately after the following existing Standing Orders: Standing Order 56.1(1)(b), Standing Order 57, Standing Order 61 and Standing Order 66(2)(c). The practical result is that if Motion No. 109 is adopted, it will never again be possible for a government to bring to a conclusion the debate on a proposed amendment to the Standing Orders unless there is all-party consent for the debate to end and for a vote to be taken. In the absence of consent on any future change to the Standing Orders, debate would simply continue indefinitely. Knowing this to be the case, future governments would find it necessary to obtain such consent: in other words, to build a consensus.

To be clear, Motion No. 109 does not create a situation in which unanimous consent would be required for future changes to the Standing Orders. As a practical matter, the mechanism of delay that I propose is only available to organized groups of a certain size. A group of MPs with a dozen members, which under our rules is the minimum size to achieve party status, is big enough to deny consent, but an individual MP does not have the stamina needed to hold up debate on a motion that has the support of all of his or her colleagues. Numerous examples exist to prove this point.

The description I have just given, as to how Motion No. 109 would achieve its goal, is as antiseptic and as neutral as I can make it, but of course I am an enthusiastic advocate for that goal. Therefore, let me now, in the second part of this three-part discussion, lay out the case for stripping the government of its power to unilaterally change the Standing Orders.

I have to start by emphasizing the enormous importance of the Standing Orders. The Standing Orders are the de facto constitution of the House of Commons. They are the rules of the game, so to speak. Our Standing Orders descend from those of the House of Commons in Westminster, which were already centuries old when they were imported to Canada in 1791, with the first sittings of the legislative assemblies of Upper and Lower Canada. When new constitutions were adopted in 1841 and 1867, the pre-existing Standing Orders were re-adopted, with suitable amendments. For example, when the brand new House of Commons met for the very first time, on November 6, 1867, its first order of business was to adopt what were styled the “Rules, Orders, and Forms of Proceeding of the Legislative Assembly of [the former province of] Canada”.

The Standing Orders have continued evolving since 1867, and, as would be expected of a set of rules that have been steadily adjusted and improved for such a vast span of time by so many participants, they are, in many respects, the best rules of order in the world.

During the long history, on Canadian soil, of our Standing Orders, a convention has developed that governments ought not to amend the Standing Orders without all-party consent. Most governments, most of the time, have respected this convention. Regrettably, however, this convention has never quite jelled, unlike, for example, the confidence convention.

On several occasions over the course of the past century or so, governments have changed the rules unilaterally. They have placed time limits on debate in order to force a vote in which the government's majority ensures that the desired change will occur, despite the absence of a consensus.

The first occasion on which limits on debate were used in order to force through non-consensual amendments to the Standing Orders was in 1913. Closure has since been used to do the same thing in 1969, in 1991 and several times under the current government. It is worth noting that there is a pattern to such votes. Closure has consistently been used when the goal is to enact changes to the Standing Orders that would give new tools to the government to more effectively limit the amount of debate that takes place in the House of Commons.

When this happens, open debate is constrained in the short run in the service of giving the government greater powers to constrain debate in the long run. It goes without saying that such changes restrict the ability of the House of Commons to perform its constitutional role of limiting the power of the executive. I would note that this is a power our predecessors had to fight for and, in some cases, to die for, both in England in the 1600s and on these shores in the rebellions of 1837.

As noted a moment ago, the first time that restrictions on debate were applied to a vote on the Standing Orders was in 1913. A previously unused standing order that had existed since 1867 was employed to curtail the debate on the vote that had introduced a new standing order, Standing Order 57. Ever since, this particular standing order has made it possible for the government of the day to impose drastic time limits on the debate on any motion.

Standing Order 57 is what we MPs most frequently refer to when we speak of closure. The section 57 closure rule was used in 1969 to force a vote on the adoption of Standing Order 78, which permits the government to apply a new version of closure in debates on legislation; this form of closure is known as time allocation. In 1991, closure was used once more to impose Standing Order 56.1, which permits the government to apply yet another new version of closure, this time to motions regarding routine proceedings. Under the current Prime Minister, closure has been used repeatedly to force the House to adopt non-consensus amendments to the Standing Orders.

Specifically, closure has been used to curtail debate and to force votes on the following four occasions: May 26, 2020; November 25, 2021; June 23, 2022; and June 15, 2023. Aside from the comments I made a moment ago about the martyrs of parliamentary democracy from the 17th and 19th centuries, I do not propose today to deal with whether closure and time allocation are good or bad things or whether closure or time allocation are used judiciously or too much; I specifically want to avoid participating in comparisons of the records of the current government and the last one regarding the use of closure.

Other figures more prominent than I have already weighed in on these matters: In 1932, Mackenzie King described closure as the “most coercive and arbitrary” measure a government could enforce. In 1962, John Diefenbaker put the abolition of closure into the throne speech, only to have his government fall before it could be voted on.

I can only observe that Motion No. 109 would not reduce, eliminate or otherwise affect closure and time allocation in any way other than to prohibit their application to debates on changing the Standing Orders themselves. However, I do propose to suggest that it is very unwise to allow a situation to persist under which the Standing Orders, the rules by which all business is conducted in this place, are subject to amendment without the consent of all parties. It is simply wrong that debate on such amendments can be curtailed by a closure motion, by reference to the previous question or by any other means.

We can imagine how unfair any sport would be if, in mid-game, one side had the ability to change the rules to its own advantage for the duration of the game. It does not matter which sport, whether hockey, soccer, baseball or tennis. We can think of how meaningless our constitutional division of power with the provinces would be if the federal government could unilaterally amend the Constitution. There is, in short, a good reason for the protection of organic or constitutional laws by means of rules requiring more than mere majority consent, such as the federal Constitution's requirement that most amendments be approved only if agreed to by Parliament and by seven provincial legislatures.

It is time to extend similar protections to the rules governing the House of Commons, and that is what Motion No. 109 seeks to do.

However, members should not take my word for it; they can consider instead what the leaders of the two largest opposition parties said in 1969 when, without the support of a single opposition MP, the government gave itself the ability to curtail debate on any bill and then curtailed debate on the new standing order giving it this power. Robert Stanfield, who was then leader of the opposition, warned:

The use of closure to force through rule changes [that] are opposed by every member of the opposition [would establish] the precedent that the majority in this house can change the rules so as to permit, if it chooses, only the most nominal consideration of legislation by this house. Backed by closure the majority could put through changes in the rules that would eliminate all stages of discussion except one.

Tommy Douglas, who was then the leader of the New Democratic Party, expressed his alarm as follows:

If a majority can at any time use its weight of numbers in the House of Commons to change the rules, how long will the rights of the minority in Parliament continue to exist? If the government unilaterally can change the rules, as it is seeking to do now, what can it do next session and the session after that?

Well, although the changes that Stanfield and Douglas feared were not implemented in the next session, nor in the session after that, the unilateral changes that were imposed in 1991 and then by the current government showed that their words were prophetic.

I will now read a few observations made during the truncated debate on the most recent set of non-consensual changes from 2023. All the following comments were made by hon. members who still sit in this place.

The member for Hamilton Centre, who is a New Democrat, asked:

If this [set of amendments to the Standing Orders] was such a priority, why was it not introduced a bit earlier, which perhaps would have provided for a fullness of discussion and debate and might not have forced us into closure and would have allowed for all of these nuances and democratic principles to be fully fleshed out?

The member for Kitchener Centre, who sits for the Greens, stated:

there is not even a chance to propose amendments. It is already a take-it-or-leave-it approach, and on top of that, we are now being limited in our debate.... I can speak for myself in saying that I am still researching, reading and listening to inform my own vote on this measure.

The member for Montcalm, who sits for the Bloc Québécois, described the proposed changes to the Standing Orders as “despicable”; he added, “Doing it with a closure motion is even more despicable.” He went on to state that the Government House Leader “should have consulted us instead of unilaterally doing what he is doing today. I would like him to have this done to him when he is on the other side of the House after the next election just to see how he likes it.”

Of course, Mr. Speaker, the goal of Motion No. 109 is to guarantee that, whichever party forms government following the next election, unilateral changes to the Standing Orders will never take place again and no MP will ever again have to express this kind of frustration.

I will now turn to the third of the three topics of this talk and take a few minutes to describe how Motion No. 109 ensures that the amendments to the Standing Orders written into the text of the motion are not themselves the subject of only two hours of debate in this place, followed by a peremptory vote.

Motion No. 109 is divided into three parts. The first section is a preamble, explaining the rationale of the motion. The second part provides the text that I am proposing to add to the Standing Orders and states that “it be an instruction to the Standing Committee on Procedure and House Affairs to undertake a study on the advisability of amending the Standing Orders”. The third section instructs the committee to report its findings to the House no later than 75 days following the adoption of this motion. At that time, the House would have the opportunity to vote on the committee's report.

Regrettably, as the Standing Orders now exist, they do not permit the same rules to be applied to the vote on Motion No. 109 as Motion No. 109 would cause to be applied from that point onward. There is, therefore, a certain inadvertent irony. It is not impossible that, in the vote on Motion No. 109, party discipline will be applied by one or more of the parties and that the motion could pass with one party voting unanimously against it.

I have no antidote for this except to encourage all parties to adopt the approach that was used in 2015 when a motion that I had proposed to amend the Standing Orders to allow for the election of the Speaker by preferential ballot was referred to the committee on procedure and House affairs and then was reported by that committee to the House. In the vote that followed, the whips of all parties allowed their MPs to vote freely, and every single caucus in the House split, with some voting in favour and others against but, of course, the majority voting in favour. This was the only truly free vote for every single MP in the House in the entire four-year life of the 41st Parliament, and I hope that it will serve as the model for the vote that may eventually take place on Motion No. 109.

[Questions Passed as Orders for Returns, April 10th, 2024]

With regard to penitentiary farm and agriculture and agri-food operations at the Joyceville Institution and the Collins Bay Institution: (a) what funds have been spent on Public Services and Procurement Canada fees and disbursements and professional project management services, including, but not limited to, concept design, project leaders, tender packages, geo-technology, hydrogeology, engineering, and architectural consultants, broken down by fiscal year since 2018; (b) what funds have been spent on feasibility studies, public consultations, online consultations, and contracts with Goss Gilroy and Monachus Consulting during the feasibility and consultation phase of the penitentiary farm project, between January 1, 2016 and December 31, 2018; (c) prior to the reinstatement of the penitentiary farm program, what revenues were earned by Correctional Service Canada from rental agreements for the penitentiary farmland at the Collins Bay Institution and the Joyceville Institution, broken down by year for each year from 2013 to 2018; (d) of the revenues earned from penitentiary agriculture programming since 2018, what is the breakdown by source and year; (e) how many offenders are currently employed in penitentiary agriculture programming, broken down by location; and (f) of the offenders who have been employed in penitentiary agriculture programming since it was reintroduced in 2018, how many have been released, and, of those released, how many obtained jobs in the agriculture sector?

[Member for Bécancour—Nicolet—Saurel, April 10th, 2024]

Mr. Speaker, I would like to say a few words about our colleague from Bécancour—Nicolet—Saurel, who has served our country and the people of his riding for 40 years.

It is a matter of coincidence that the man whose record the member is breaking is a man named John Graham Haggart, who was a Conservative member of Parliament elected in Canada's second election, in 1871, and who served until his death in 1913 under every prime minister from Sir John A. Macdonald to Sir Robert Borden.

By coincidence, John Graham Haggart served in the ancestor of my own riding, and by an even more extraordinary coincidence, he lived in the same house that I now live in. Therefore I feel I am better qualified than anybody else to channel his ghost, so on behalf of the man whom he is bettering today, John Graham Haggart, let me just say “well done” to our colleague.

I congratulate him.

May he serve much longer indeed, and do so as nobly as he has done in the past.

[Points of Order, March 22nd, 2024]

Madam Speaker, my point is that at the end of his intervention, complaining about the unparliamentary behaviour of a previous member, the member for Timmins—James Bay added, gratuitous to the comment, that those are unfit comments from “a member as low as that member”. That, I think, is unparliamentary. I might be wrong, but I think that was an unparliamentary addition to the debate by the member for Timmins—James Bay.

[Points of Order, March 22nd, 2024]

Madam Speaker, I rise on the same point of order. First of all, I agree that nobody should have been speaking during the member's intervention. I am happy to say I was not one of those people.

With regard to the point of order raised by the member for Timmins—James Bay, he ended it by making a personal aspersion against the member. He said that the previous member, and I am not even sure which member it was, had been speaking in an unparliamentary way. That may or may not be true; I was not here to hear it. However, I do know that one cannot then add “by someone as low as that member”.

If it is unparliamentary, it is unparliamentary. We do not have the sort of category where certain members are beneath contempt and can say so freely, as the member has just done, and others are not okay. That is just ridiculous. I would encourage him to reconsider that kind of language.

[Privilege, March 20th, 2024]

Mr. Speaker, I am told it was five minutes, but the point is this. In the normal course of business, we present a motion in one language only. We do not stop the proceedings for an hour, as has actually happened, to give the opportunity for the second language to be produced. We would return to the debate and, if members could get the matter to you, Mr. Speaker, in both languages prior to the expiration of the debate, then you would end things. You do not halt things and allow members to get around to producing things at their convenience.

I think that rule would indicate that the wrong approach was taken here, and your guidance in your ruling, Mr. Speaker, for future situations of the same sort would be most helpful.

[Privilege, March 20th, 2024]

Mr. Speaker, I want to point out something that I think is highly relevant but has not been mentioned in the previous submissions. I think it will be of use to you in coming to a decision.

We know that it was one minute, more or less, before the end of the debate that this was raised—

[Business of Supply, March 18th, 2024]

Mr. Speaker, the key thing here is that we cannot expand the scope to take in more subject matter than was in the original motion. We see that one of the amendments proposed by the government would expand to deal with settlements on the West Bank. This is not a motion about the West Bank. It is about Gaza. Indulging in a discussion about aspects of Israeli policy that deal with some other area, with Lebanon, Jordan, Egypt, Syria and the occupation of the Golan, is outside the original scope.

It is very nice that the government would like to add the settlements on the West Bank. Perhaps they should have been in the original motion, but they are not. They are part of a separate topic. The government cannot now violate parliamentary practices based on the fact that its members think they should have been included.

The government should have debated this before introducing the motion and not change it now at the end of debate. That is well beyond the scope of the original motion.

[Constitution Act, 1867, January 31st, 2024]

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.