LEGISLATIVE ASSEMBLY OATH OF ALLEGIANCE ACT, 1995 / LOI DE 1995 SUR LE SERMENT D'ALLÉGEANCE DES DÉPUTÉS À L'ASSEMBLÉE LÉGISLATIVE
Wednesday 10 April 1996
Legislative Assembly Oath of Allegiance Act, 1995, Bill 22, Mr Agostino / Loi de 1995 sur le serment d'allégeance des députés à l'Assemblée législative, projet de loi 22, M. Agostino
Dominic Agostino, MPP
Monarchist League of Canada
Garry Toffoli, chairman, Ontario division
Dr Richard Toporoski, Toronto branch
STANDING COMMITTEE ON THE LEGISLATIVE ASSEMBLY
Chair / Président: Arnott, Ted (Wellington PC)
Vice-Chair / Vice-Président: Hastings, John (Etobicoke-Rexdale PC)
*Arnott, Ted (Wellington PC)
*Bartolucci, Rick (Sudbury L)
*Boushy, Dave (Sarnia PC)
Cooke, David S. (Windsor-Riverside ND)
*DeFaria, Carl (Mississauga East / -Est PC)
*Froese, Tom (St Catharines-Brock PC)
Grimmett, Bill (Muskoka-Georgian Bay / Muskoka-Baie-Georgienne PC)
*Hastings, John (Etobicoke-Rexdale PC)
Johnson, Ron (Brantford PC)
*Miclash, Frank (Kenora L)
*Morin, Gilles E. (Carleton East / -Est L)
*O'Toole, John R. (Durham East / -Est PC)
Silipo, Tony (Dovercourt ND)
*Stewart, R. Gary (Peterborough PC)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Gilchrist, Steve (Scarborough East/-Est PC) for Mr Johnson
Martin, Tony (Sault Ste Marie ND) for Mr Silipo
Shea, Derwyn (High Park-Swansea PC) for Mr Grimmett
Clerk / Greffière: Lisa Freedman
Staff / Personnel:
Peter Sibenik, procedural research clerk, Office of the Clerk
The committee met at 1534 in room 228.
LEGISLATIVE ASSEMBLY OATH OF ALLEGIANCE ACT, 1995 / LOI DE 1995 SUR LE SERMENT D'ALLÉGEANCE DES DÉPUTÉS À L'ASSEMBLÉE LÉGISLATIVE
Consideration of Bill 22, An Act to provide for an Oath of Allegiance for the Members of the Legislative Assembly / Projet de loi 22, Loi prévoyant le serment d'allégeance pour les députés à l'Assemblée législative.
The Chair (Mr Ted Arnott): I call this meeting of the standing committee on the Legislative Assembly to order. Members of the committee, we have a report from the subcommittee that we have to deal with first.
"Your subcommittee met on Tuesday, April 2, 1996, and agreed to the following:
"That the committee will consider Bill 22, An Act to provide for an Oath of Allegiance for the Members of the Legislative Assembly, on Wednesday, April 10, 1996."
Do I have a motion to adopt?
Mr Frank Miclash (Kenora): So moved.
The Chair: All in favour of the motion? Those opposed? The motion's carried.
Mr Agostino, welcome to the standing committee on the Legislative Assembly. We look forward to hearing your presentation on the private member's bill that you put forward in this Legislature.
Mr Dominic Agostino (Hamilton East): I'm pleased to make a presentation today on a bill that has now received second reading in the Legislature of the province of Ontario and hopefully, with the approval of this committee, can move on to the House for a third and final reading. First of all, I want to thank members of the House on all sides who supported the bill when it came for second reading. Bill 22 was dealt with in the House on December 14, 1995.
I'm pleased to be here and let me reassure all members of the committee that my intent with the introduction of this bill was not to in any way, shape or form take away from the historical significance of the monarchy, of the role that the monarchy plays, has continued to play and hopefully will continue to play for many, many more years to come in the history of this country. I very much believe it is an important part of Canada, it's an important tradition, it's an important heritage we must maintain and pass on to our children and grandchildren.
I was not born in Canada. My parents chose to make Canada a country to raise a family and make a living. I am pleased they did that, because it has been a tremendous opportunity for all of us. It is an opportunity I know we would not have had in the country of my birth, and I very much respect the institutions and traditions of this country and want to continue to maintain those.
As a country, we have evolved over the years, we have evolved and changed. I think any of us would acknowledge the fact that this is not the Canada of 100 or 125 years ago, the country today made up of many different people of many different backgrounds. All of us come here with a common purpose and a common goal and all of us come here to try to share in the values and beliefs of Canada.
As the country has evolved and as we have changed over the years, our institutions, I believe, must change and must reflect that. We have gone through unity crisis after unity crisis in this country. I believe one of the problems we are facing and we have faced as Canadians over the years is that often we don't speak out loudly enough, clearly enough and focused enough on behalf of Canada. We have over the years been shy to wave a Canadian flag. We've been shy to talk about things that make Canada what I believe is the greatest country in the world.
I think it is has been that reluctance -- we as Canadians know the kind of country we live in, the kind of country we have, but we tend to be very quiet about it. You can compare our difference to the United States very clearly. Maybe they take flag-waving and patriotism to an extreme on the other hand, but I think in Canada we don't do enough of that.
I find that most people I've spoken to are shocked at the fact that the oath of office for elected officials does not include a direct oath to Canada. I understand very clearly that there will be those of my friends here today who will say when you're swearing the oath of allegiance to Queen Elizabeth II, you're in effect swearing an oath of allegiance to Canada. That I understand, that I accept.
I would ask my friends: What damage, what danger, what harm do you see to Canada, to our institutions, to our Parliament if we allowed our elected members to swear allegiance to Her Majesty Queen Elizabeth II, of course, first, and to Canada as well, to have the two combined? I don't believe it takes anything away from the heritage, from the monarchy. I think what it does is add: it adds to what we've built upon over the years. It does not take anything away or diminish the role of the monarchy in any way, shape or form. It simply allows us to express one more time, gives us one more opportunity to say "Canada" in an oath of office.
I found it astonishing as an elected official that I could not take my seat here if I chose to swear allegiance to Her Majesty and to Canada at the same time. I think in most countries around the world we would find the same astonishment. Frankly in most countries you could not hold elected office unless you swore allegiance to the country which you served in and you chose to serve in.
Let me remind members of the committee that I very much disagreed with the move of the previous government to remove from the oath of office for police officers the reference to the Queen. As a member of Hamilton city council at that time, I sponsored a resolution and supported it, and we were able to carry a resolution urging the government to reconsider that decision. We very much felt that removing the Queen from the oath of office was the wrong way to go about it and was the start of destroying an institution and a very important part of Canada, Canadian history and everything we stand for as part of the Commonwealth.
I'm very supportive of the monarchy and I've very supportive of the move of this government when they changed that to give police officers that option and that choice. At that time I sent a note over to the Solicitor General congratulating him for the move. I felt it was the right move and felt that is the way to go. So there already is a precedent. This government in a sense already has done that and has accepted the precedents of both the oath to the monarchy, to Queen Elizabeth II, and the oath to Canada, and that has been done as a result of the change that was made to the oath for police officers to take.
I'm pleased also that both the Premier and Mr Runciman have publicly supported a change to the oath of office, Premier Harris in an article on July 1 in the Toronto Sun and Mr Runciman in an interview with Roy Green, and I'll just read from that.
The interview was based on the change to the police oath, and the question was: "Bob, would I then by extension assume that you'll be in favour of Dominic Agostino's motion/bill to include Canada in the oath of allegiance for provincial politicians?"
The response from Mr Runciman was: "Yes, I am. I think that's appropriate, and I indicated to Dominic yesterday" -- in the House -- "that I was. He sent me over a note in the Legislature congratulating me on the statement I made in reaction to the government and asking how I felt about his resolution, and I said he's got my support." That is from the Solicitor General, Mr Runciman.
I don't want to belabour the point. I don't want to go too long. I've given speeches in the House on it. My track record on this is clear. My historical support of both the monarchy and of including Canada in the oath is very clear. I had the opportunity and the pleasure to be pretty well the first elected official at the municipal level to be able to do it and was allowed to take that oath of office. In Hamilton-Wentworth it has been followed by the regional council and the city council, following that in 1994, also swore an oath of allegiance to both the Queen and Canada. I hope we will approve this motion today and allow it to go forward, and we will become the first Legislature in this country to require elected officials to swear both.
Let me just remind you, there's one other Legislature that does it, and I believe for the wrong reasons. The Constitution allows provincial legislatures to add to the oath of allegiance as long as the first one is not touched. The oath as prescribed in the Constitution we do not have the power to touch or tamper with, but we have the power to have a second oath. In Quebec they have a second oath, an oath to the province of Quebec. They're the only other Legislature.
Let us be the first Legislature to not only respect, understand and support the role of the monarchy but also put a second oath in, with the second oath to Canada, and that will be the first for this country. It will be historic for this Parliament, and I hope I can have the support of the committee members for what is really a non-partisan issue. We have the support of the Premier, we have the support of the Solicitor General, and I hope we have the support of the committee today. I'll be happy to answer any questions.
The Chair: Are there any questions for Mr Agostino with regard to his presentation?
Mr John O'Toole (Durham East): The first question I have is, what's the problem with the current one? I haven't heard of it being a problem until last fall after the election. Mr Agostino had a photo opportunity and he had some difficulty with the long-serving traditions of this province. I don't know whether it was a photo op, a personal leadership opportunity, and I'm wondering what the problem is. That's really what it is.
Mr Agostino: If I can answer that, first of all, I will make this non-partisan. I don't plan on taking shots at the committee members today. The question of the oath to Canada is not a new controversy. My friend will remember the uproar that occurred in this province in 1991 when there was an attempt to change the oath in regard to police officers. It has been discussed at the federal level and private members' bills have been introduced at the federal level a number of times to change this oath. I took the same stand on Hamilton city council and was successful in convincing my colleagues to add "Canada" to our oath. We did it and were not challenged on it.
I very much believe that as an evolution of the country, the oath as it now stands is a good one. Our historical ties to the monarchy should not be diminished and should not be swept away. What I'm asking is simply to add the word "Canada" to the oath that we now have without taking away, in any way, shape or form, the initial oath, the one that has been place since 1867. We have evolved. We have changed the country. We have gone through a number of crises, as I said earlier, on national unity, and I think one of the reasons is because as Canadians we haven't done enough like the rallies in Montreal, we haven't done enough flag-waving. We haven't spoken out loudly and clearly enough about how much we love this country, what this country means to us.
I really think there is something wrong when an elected official cannot swear allegiance to Canada as well as to Her Majesty the Queen, simply say the words "and to Canada" or a second oath that says "to Canada." I do not, for the life of me, understand how one believes it's going to take away from what we now have. I believe it will add to what we have and it'll make us even prouder to be Canadians.
The Chair: I'm going to go in rotation among the parties.
Mr Rick Bartolucci (Sudbury): On a point of order, Mr Chair: I refrained from interjecting after Mr O'Toole finished, because I wanted Mr Agostino to give his answer, but I honestly believe Mr O'Toole was out of order with his comment.
The Chair: In what way?
Mr Bartolucci: I believe he imputed motive with regard to the reason and the rationale behind the action Mr Agostino took at his swearing in. I believe Mr Agostino deserves the right to qualify his actions, although they weren't necessary as far as I'm concerned. I would ask, Chair, that you rule that comment with regard to the photo op out of order, because indeed it was and is still an out-of-order comment.
The Chair: I would like Mr O'Toole to have an opportunity to respond to that before I rule, if he's interested in doing so.
Mr O'Toole: I'll explain: When I was sworn in, it was a very important occasion, a very personal occasion, and I didn't invite the press. I'm wondering if the Toronto Star just happened to be walking by. How much of it was opportunistic and how much was a personal, conscious, quiet decision? I mean that sincerely. The papers were not just walking by. If it's a personal choice, I completely support the sentiment, the secondary sentiment here, of being about to enunciate certain loyalties over and above the oath that's prescribed today. I don't have a problem with it. I think that is a personal conscience thing. That part of it I certainly recognize.
The Chair: As members of this committee know, it is against the rules and the traditions of the House to impute motive in the chamber and the committees. I would ask all members to observe that.
Mr O'Toole: I'll withdraw, if I'm imputing a motive out of context.
The Chair: Thank you very much. I recognize Mr Miclash.
Mr Frank Miclash (Kenora): As Mr Agostino has indicated, he has certainly received a lot of support for this motion. He indicated in his comments that he has the support of the Solicitor General and the Premier. As you know, it had the support of the House as well when he presented it as a private member's resolution. I think when we as a committee take a close look at what we're going to do in terms of this act, we should respect that support that he has gathered from the Premier and the Solicitor General, along with the majority of the House.
Mr Tony Martin (Sault Ste Marie): I'd like to go on record on behalf of myself and my colleagues in support of this bill. I think it's a timely one and one we should all be willing to give some serious consideration to and actually listen intently, as I have, to our constituents re their feelings, their sentiments, their sense of whether at this point in our history we are, as a provincial jurisdiction and as a country, willing to stand up and operate on our own two feet and become more and more identified with Canada as opposed to some historical roots that still remain important and will be forever there as an important part of our heritage. I think it's time we recognize and begin to give some respect to the fact that we are an independent country with all of the infrastructure that goes with that; I think it only right that we would.
Mr Agostino, in this bill, has tried to be as sensitive as possible to those who still feel quite strongly, although I suggest to you that if you listen to your constituents out there and have spent any time in conversation about this kind of thing -- and some of you may have, because as Mr Agostino said in his remarks, we've been through in the last number of years, and most dramatically in the last half a year, some very critical time in our history as a country, as a people who pledge allegiance to one another, to our past and, most importantly, to our future together. In light of that, it becomes probably even doubly important, critically important that we, in every way we can, show that we are proud to be Canadians and that being Canadian means something both formally and informally in the communities we live in, in the jurisdictions we govern in and within the borders that are this great country of Canada that goes, as I think we should say more often because it's true and it's quite unique for a country, from sea to sea to sea.
I personally see this as a step forward. I think we'll find ourselves going down this road even farther as time unfolds, and as the discussion on who we are as a country, the makeup of that country, the way we govern ourselves in this country continues, we will probably at some point go even beyond the bill that we have in front of us now presented by Mr Agostino in this House.
He's done it in a fairly public way. I have no difficulty with that. I've been here for six years and there isn't too much that I do down here that I don't do in some very public way, particularly to let the people who have voted for me back home know that I'm here, that I'm acting on their behalf, that I'm taking seriously the responsibility given to me at election time and that I'm bringing forward some of the thoughts and ideas and really strong sentiments of my constituents. They should know about that.
Every time I get up in the Legislature to make a statement, to ask a question, to respond to a minister or give a speech, the second thing I do -- and I'm not apologetic about this -- is I call my community. I call the press. I call some of the leadership. I call anybody in the community who might have an interest in the particular subject or topic that I'm speaking on, and they listen. They have an opportunity to encourage me or praise me, or to criticize me or to challenge me, or to want to sit down with me when I come back home and have a further discussion so that I might clarify more fully the position I'm taking and why I'm doing it. It's fundamental to the institution that we all serve, that we're all part of. If we should in any way suggest that's not correct or proper, I think we should be questioning that as well.
I came to Canada, my new home, in 1960, the eldest of seven children born in Ireland. I had, when I came, no preconceived notions about the connection Canada might have with that dear country close to the country I came from, England, and its ruling authority, and became a very active and proud Canadian. It was only five years, almost to the day, after we arrived, Mom and Dad and my five sisters and my brother, that we marched almost in lockstep down the main drag of Wawa, where we lived, to pledge allegiance to this new country that became our home.
I now am married to a woman of Italian descent. Her mother came to Canada from Italy as a teenager to look for work. Her father's parents came to Canada as a young couple to work at Algoma Steel. All of them have claimed Canada as their home. We don't, I suggest to you, along with my four children, who are proud to be Canadian, spend a whole lot of time around our supper table talking about the monarchy or our sense that the monarchy is really all that meaningful any more in any direct or indirect way in our life. Not that I would suggest for a second that my kids in any way diminish the importance of the monarchy to the history of this country, to some of the traditions that we continue to have and work through as we govern each other and make laws and act respectfully in that effort. I don't think this bill takes away in any significant way from that recognition either.
It's important we remember we are a country founded on, as they say, two nations, but with a third nation we have to recognize and make room for. Mind you, they made room for us in the early days of our arrival, and I think it's important that today we do everything we can in our jurisdiction to make sure we make room for them as they make efforts to be all they have the potential to be and to contribute and to live fully in the way our first nations people choose to live in this country.
This is in one respect a rather simple bill we're being asked to consider here today, but in many other respects it's fairly complicated and sophisticated, because of the long history that we have and the uncoupling that is going on now and the struggle, that we're going through as a people together to try and define who we are. I think it's really important.
As I said in my opening few comments, Mr Agostino is being very sensitive and very careful and considered in his presentation of this bill. He's not saying that we totally remove the oath to Her Majesty; he's saying that we simply add another piece. As we pledge to be faithful and to do the best we can in this job and the work we entertain here, in this instance, continue to recognize the important place the Queen has played and the monarchy has played and our British ancestry, which is part of our heritage here in Canada, has played in our being where we are today and the fact we can consider some of the things we consider in such a peaceful, democratic manner as we evolve as a country, and add to that simply a statement of our allegiance to the country we all claim as our own.
I'll be supporting this bill on behalf of my colleagues in the New Democratic caucus and I would hope that all of you across the way will, in the spirit that I know you come here with and in looking ahead at this wonderful country of ours as it evolves, find it within your willingness to support it as well.
Mr Derwyn Shea (High Park-Swansea): Chairman, I must confess, something happened. This may be a point of order, before I begin. I was so enamoured by the points being raised by Mr Agostino and then taken with great pleasure to listen to my good friend the member for Sault Ste Marie -- and I always like to listen to him -- unfortunately what happened is that I looked down to go through my notes -- I'm subbing on the committee today and I apologize -- trying to get up to speed very quickly. As I looked down, suddenly the voice had gone from Mr Agostino over to my good friend from Sault Ste Marie and I didn't get a chance to ask Mr Agostino questions. So I'm in your hands. Can we at some point ask Mr Agostino to go back on the list so I might at least have the opportunity to ask him a couple of questions?
The Chair: If you wish to ask him a question at this time, by all means.
Mr Shea: If that's in order, I'd be pleased to do that. I appreciate that courtesy. I'd like to come back to Mr Martin as well, because he piqued my curiosity on a couple of points. I will warn him now I'll come back to his Italian connection and his Irish roots; we won't let that one go without some discussion.
Mr Agostino, could I just ask you for a moment -- my good friend Mr Morin will forgive me; oh, he's appeared, so he really will have to forgive me. I can now say it. For others who are very fluent in the beautiful language of French, you'll excuse me if I say, "L'État est moi." I assume that you do not accept the reality of that statement or you see there's some separation of those words.
Mr Agostino: You'll have to excuse me. Unfortunately, I don't speak French and I don't understand.
Mr Shea: I apologize. It's a historical statement made by Louis XIV, essentially saying, "I am the state." I'm wondering if that is something with which you disagree now in terms of the constitutional role of the Canadian monarch. Do I assume you do not agree that the Canadian monarch is the state?
Mr Agostino: I agree with the constitutional role. I agree with the evolution over the years that has occurred. I've said very clearly in my statements that I've very much supported it in my history and my track record of supporting the monarchy and the heritage and the beautiful history of this country and the significant role that the monarchy has played and continues to play in Canada and Canadian history. It's part of our lives and I very much support that role. I would never advocate the abolition of that role. I would never advocate the removal of that role. This oath doesn't do that.
What I think is important for us and for our kids and for our grandchildren is to be able to say in some small way that Canada and the word "Canada" and what that really stands for for all of us as a country are also very important and that we shouldn't be afraid, embarrassed or shy about it. I think they are going to change the oath federally to add "Canada." I made it clear when Mme Robillard had initially made the comment that she wanted to remove the reference to Her Majesty from the oath; I spoke out against my federal cousins in Ottawa, and I said at that point as well that I didn't agree with that and that the reference to Her Majesty should not be removed but that we should add "Canada" as well. It's the same position I take here. I really see it, I honestly and sincerely see it as an enhancement of what we have. I don't see it as a diminishment and I would never ever want to minimize the role of the monarchy and the history it has played in this country.
Mr Shea: I want to make it very clear that I don't take it from your comment that you do. I think you're trying to be very clear about that. But I'm perplexed by it, so I need to explore it a bit more. When you look at the flag of Canada and you look at the Queen, perhaps out of two eyes at the same time, do you see something different?
Mr Agostino: I see the two as symbolizing the same. I see the Queen representing Canada. I see the flag being as well a very visible representation of our country.
Mr Shea: There was an interesting comment. Let me just ask: Are you generally in agreement with Mr Robertson's submission to the committee?
Mr Agostino: Which submission is that? I'm sorry.
Mr Shea: Mr Robertson is the researcher who has provided the details --
Mr Agostino: Oh, the background.
Mr Shea: Do you generally agree with the documentation that is provided?
Mr Agostino: I received this documentation about an hour or an hour and a half ago.
Mr Shea: I confess you're ahead of me by about an hour and 25 minutes.
Mr Agostino: I flipped through it. I understand the history of it. I have read the history of the oath. I understand very clearly that we cannot change the federal; the oath is to the Constitution and it would take an act of the federal Parliament to change that.
Mr Shea: Is there anything in this submission with which you would disagree?
Mr Agostino: I have not looked at it in the sort of detail that I would be able to comment on that at this point.
Mr Shea: Obviously some of the background material ought to figure into some of our discussion in the committee then. Clearly we should have time to review this. I don't know how the Chairman wants to guide us, whether there's a chance to continue this debate for one more meeting, but clearly it's important for people to digest some of this research. Mr Robertson presents some very interesting arguments.
Mr Agostino, can you for my edification advise me, because clearly this is a matter of great importance to you and you've done some research, on the swearing of oaths. For example, let me just pick on four countries -- set aside Canada -- France, Germany, Italy and the USA. Have you a sense of how the oath of allegiance is taken in each of those countries?
Mr Agostino: I am not aware of the wording for each country, I don't know exactly what they say, but I'm pretty sure that in the United States of America you swear allegiance to the United States.
Mr Shea: To the United States. I see.
The final question would involve the motto of the province of Ontario. To whom does that motto refer, in your opinion?
Mr Agostino: It kind of refers to all Ontarians.
Mr Shea: In what way? Could you explain?
Mr Agostino: In a sense, when you are referring to the motto of the province, anything that we do here --
Mr Shea: To whom does the motto refer?
Mr Agostino: I'm sorry. I don't quite understand if I wasn't starting to answer the question. To whom does it refer?
Mr Shea: Yes, to whom does the motto of this province refer?
Mr Agostino: I'm sorry. To whom it refers? Oh, you're referring to the actual motto itself?
Mr Shea: Yes. To whom is it referring in terms of its loyalty?
Mr Agostino: I presume it would be to Her Majesty Queen Elizabeth II and, through extension, to the country and to the province.
Mr Shea: So to its sovereign?
Mr Agostino: Yes.
Mr Shea: I don't have any other questions. I thank you, Mr Chairman. I would like to talk, when the time comes, with my good friend from Sault Ste Marie.
Mr Bartolucci: My comments will be rather brief. What we have here is someone trying to make an oath of allegiance a lot more meaningful to Ontarians, to Canadians. Ultimately, what I see here is a correlation where we're bringing not only Ontario, not only Canada and not only the monarchy in isolation, but we're trying to bring them together so that when we swear the oath of allegiance, we will have more respect for the allegiance to the Queen, because it will be tied in with Canada.
If you look at it from a student's point of view, you can find out that what would happen with that is there would be a far greater appreciation during history classes or during civics classes of trying to draw in the importance of tying in Canada with the monarchy so that the Governor General, whose position as the Queen's representative is extremely important in Canada but oftentimes goes unnoticed, would be tied in.
What we have here is a bringing together of allegiance, of importance, so that everyone understands clearly that when we swear allegiance to the Queen, we include Canada in that. Ontarians can take a lead here. This is not a dramatic change. This is not a slight to the monarchy in any way; at least I don't read it and don't see it as that. What I see it as is a strengthening of our very, very strong loyalty to the monarchy, our allegiance to the monarchy, through Canada, through our oath. I see this as being very, very good and making it much stronger in importance and in meaning, and that's why I'll be supporting it.
Mr R. Gary Stewart (Peterborough): I have a couple of questions. You made a comment that Quebec did it a different way. Can you tell me what that is? Is there one? Maybe it's already in here and I haven't found it.
Mr Agostino: Simply, they have to, by constitutional legislation, swear the prescribed oath of allegiance that's in the Constitution. Then they've added a second oath which, in effect, swears allegiance to the province of Quebec. It's not something I would support.
Mr Stewart: It's the second oath that they do.
Mr Agostino: Yes.
Mr Stewart: And what you're suggesting in this one is all one oath.
Mr Agostino: No, no, it would be second. Legally, we cannot tamper in any way, shape or form with the first one. We only have the ability to change the second portion or to add a second one. That's what the bill in effect has done. It has kept the first one identical, as prescribed in the Constitution.
Mr Stewart: You're saying it can't be changed, the first part?
Mr Agostino: It would be through the federal government to change the actual original oath as prescribed in the Constitution. It would take a constitutional amendment. I'm not sure what sort of process it would take and I certainly would not encourage the federal government to change that oath.
Mr Stewart: I won't say what I was going to say. Okay, that's fine. Just a comment that I would make -- and I'm not going to get very long-winded -- my family has been in this great country for seven generations and I can assure you I'm a very dedicated and a diehard Canadian. I'll ask you this: In the allegiance that you're proposing, is your thought still that we are going to swear allegiance to the Queen first or are we going to swear allegiance to Canada first?
Mr Agostino: Exactly as outlined in the bill, it would be allegiance to the Queen first. You would finish that oath and then swear a second one to Canada following that.
Mr Stewart: Then I would like it on record, sir, that I think you should be reversing it.
Mr Agostino: We can't, though. Let me just explain to you: Legally, we have absolutely no power to change that.
Mr Stewart: I appreciate that. But then tell me this: You're saying to me then that you must swear allegiance to the Queen first.
Mr Agostino: Absolutely, yes. That's under the federal Constitution.
Mr Stewart: Then I think we should look at the whole bill, personally.
Mr Steve Gilchrist (Scarborough East): I'm going to disagree with Mr Stewart.
Mr Stewart: Lots of people do.
Mr Gilchrist: Interestingly enough, my reasons for disagreeing are much the same. The same rationale he provides for his argument I would provide in the alternative. I'm not going to get caught up in any kind of debate about what makes for a better Canadian. I'll just simply put on the record that as somebody who was raised in this constitutional monarchy, I am immensely proud of my British heritage. I don't say that in terms of any one group of people having an extra close affiliation with the Queen, but by the same token I will stand very resolute against any diminution or any attempt to revise history.
We are a country that was founded by two linguistic groups, two nationalities. One prevailed and it is the one that provided the form of government we have today. Constitutional monarchy is very much the creation, at least in its current format around the world, of the British. Starting from that assumption and given the fact that it is entrenched in the federal Constitution, I appreciate the motives behind your bill, Mr Agostino, but I have a great difficulty supporting something that in and of itself presupposes or tries to circumvent what is the legal requirement of an act that we don't have the power to change. We might as well try to do something to revise the laws of gravity. We'll have about equal effect.
I note your reference, or the reference adduced by Mr Stewart which you then spoke to, that in the National Assembly -- a misnomer if there ever was one -- in the province of Quebec, their oath or solemn affirmation does not talk about Canada. Their supplementary oath, and it is supplementary, swears that they will be loyal to the people of Quebec and they will perform the duties of a member honestly and justly in conformity with the Constitution of Quebec, another interesting turn of phrase.
I guess if your bill was to be asking us if we, having already sworn our allegiance to the Queen, standing as the representative for everything that Canada is, as our ultimate lawgiver -- if you were asking, supplementary to that, whether I as an individual was prepared to swear that I would abide by my specific responsibilities in this Legislature, I would be quite sympathetic to that. But I can't support anything that replaces the Queen, and unless you've made a revision to the bill that's been handed out as part of the packet here, there is no mention of the Queen any more.
Mr Agostino: I am sorry. If I can interrupt, that may be the wrong packaging, because the bill itself clearly has reference to --
Mr Gilchrist: This was which tab?
Mr Agostino: The bill is in your package, Bill 22.
Mr Gilchrist: This is was what was handed out to me here today.
Mr Agostino: Just for clarification, Mr Chair, just to explain: The oath itself, we cannot touch the first one, so therefore it is not part of this. This is in addition to, and that is why it is not referred to in Bill 22. That was the way legally it was drawn up by people in the legislative end. My request was to have both of them outlined in the bill, but since it is not affecting or touching the first one and we have no power to do so, it is not part of this bill. So this is clearly a supplementary to the oath that we now take, and that cannot be changed in any way, shape or form. That will always be there unless the federal government changed the Constitution.
The Chair: I'd just like ask the researcher to clarify this for the Chair's benefit.
Mr Peter Sibenik: The oath that members currently swear or affirm was originally in place in 1867 as part of the Constitution Act of 1867, which was not a federal statute; it was an imperial statute passed by Westminster. The current bill of course is a bill that is currently before the Legislative Assembly. It is completely separate from the other oath, so they stand in a sense side by side.
Mr Gilchrist: I understand that, and thank you for that attempt at clarification, but -- and it's a big but -- you use the word "clearly" this is thus and so. I would submit to you that it is anything but clear. It makes no reference to the other legally required oath. Again, we're asking people at large, not people who will have had the opportunity here today to hear you at first hand. So whether it's some minor fine-tuning that needs to be done to the wording of your clause, it really has to say that this is supplementary to the existing oath.
Secondly, I can't support something that puts the word "Canada" in there, because the Queen is Canada. There is no if, and or but about it; she is the embodiment of our country. You cited other symbols such as the flag, but in terms of what we do in this House, the Queen is the ultimate lawgiver, and we are swearing to abide by her laws, or her heir's at such time as that changes to another king or queen. But by putting the word "Canada" in there, you are at best duplicating what we've already sworn to do, and at worst you're undermining the importance of swearing allegiance to the Queen.
I would be totally sympathetic if your bill was amended to put the word "Ontario" and refer to Ontario statutes and to be in effect some kind of explicit undertaking by a prospective member that we were going to comport ourselves properly in this chamber. But I'm sorry; as it's written here now, I don't think I'll be able to support that.
I look forward to hearing the submissions from the Monarchist League, and if they don't have a problem, then maybe I'll soften my stance. But, Mr Agostino, I don't think I could say strongly enough that I really believe anything we do to diminish the appearance of the pre-eminence of the Queen is in fact a slight and something I don't think it would be appropriate for me to support.
The Chair: Mr Agostino, do you care to respond to that?
Mr Agostino: Yes, just briefly. I'm having a bit of a difficult time understanding what is wrong with reinforcing or repeating Canada more directly. I always thought it was good to reinforce and repeat and pass on how proud we are of Canada, so I have a difficult time understanding what would be damaging in saying "Canada" indirectly the first time, for the first oath that we take, and then saying "Canada" directly through a second oath that we take. I always thought repetition was good and it was always done in school that you learned things by repeating them. I certainly don't understand what would be damaging to this country.
I also want to remind that the decision made by the cabinet and by Mr Runciman in a sense gave people those two options, and I certainly did not hear Mr Gilchrist speak out against that decision made by the government, which I believe was an appropriate decision and a right decision and one that I supported and spoke out publicly in favour of, which in a sense has done what this bill will do.
The Chair: Mr Shea, you had an additional comment?
Mr Shea: I just want ask the question of research, because I don't want to miss that opportunity, but I gather that if this -- I'd rather pass and I'll come back and ask Mr Martin some questions when my time comes up.
The Chair: Any further questions of Mr Agostino from committee members?
Mr Shea: I want to go back to the imperial issue, but I'll deal with that later.
MONARCHIST LEAGUE OF CANADA
The Chair: We have representatives of the Monarchist League of Canada with us today, and I would invite their spokesmen to come forward and make their presentation to committee members at this time. Welcome to the standing committee on the Legislative Assembly. Please identify yourselves for the purposes of Hansard.
Mr Garry Toffoli: I should begin by introducing the two of us so you know, when you come to questions after, which is which. My name is Garry Toffoli. I'm the Ontario chairman of the Monarchist League. My college is Dr Richard Toporoski, who is the past chairman of the Toronto branch of the league and has done considerable work for us on the question and the history of oaths of allegiance in the Canadian and the Commonwealth tradition, which is why we asked him to be with us in this presentation today.
I gave the clerk a copy of our presentation which I believe has been distributed. I'd like to make it as an oral presentation but with the copies you'll have to refer to when and if you have questions you wish to put to us.
Mr Chairman, honourable members of the standing committee on the Legislative Assembly, on behalf of the Ontario members of the Monarchist League of Canada, I would like to thank the committee for this opportunity to appear before it as it considers Bill 22, which would establish a second, compulsory oath of allegiance for members of the Legislative Assembly of Ontario.
In introducing his private member's Bill 22, Mr Dominic Agostino stated that it was not his intent to attack the monarchical character of Canada; it was his intent to promote national unity and Canadian patriotism. The Monarchist League of Canada is aware of the support Mr Agostino demonstrated for the Canadian monarchy when he was a councillor in the city of Hamilton and therefore accepts in good faith this explanation of his purposes.
By the same token, however, to oppose his bill is not to oppose patriotism. To vote against it is not to vote against Canada. Those of us who oppose the bill love Canada as much as Mr Agostino does and care as deeply for national unity. While other organizations may have done as much, no organization in Canada has done more for national unity, within the resources that we have at our disposal, than has the Monarchist League of Canada, which has members in every province and territory, from both language groups and from virtually every ethnic community. I might add that native-born Canadians and immigrants to Canada belong to the league, and we have members from each of your political parties.
It is because we love Canada and support national unity that we oppose this bill. We oppose it because it is a bad bill that will not do the good Mr Agostino maintains it will do but will have numerous negative effects. We ask this committee to reject it for these reasons.
One point must be made very clear at the outset and it is crucial to the debate. The current oath of allegiance taken by members of the Legislative Assembly is already an oath to the national state of Canada and, I might add, to the provincial state of Ontario. The Queen is the legal embodiment of the state at both the national and the provincial levels. There is no other legal embodiment. That is why the oath is taken to the Queen. It is not taken because she is an admirable person in her own right or because it is a nice tradition to maintain. It is taken to the Queen because she is our sovereign and it is the role of the Queen, recognized by the constitutional law of Canada, to embody the state. Some may not like this fact, but it is not a matter of personal opinion and it cannot be changed by the Legislative Assembly of Ontario.
The CBC is owned by the Queen in right of Canada. GO Transit is owned by the Queen in right of Ontario. Accused persons are tried in court on behalf of the Queen. Provincial contracts are made in the name of the Queen. It is the Canadian way of expressing our existence as a community and it is distinctive to Canada in a North America dominated by the American republic and the Americans' way of expressing their identity. This bill flies in the face of 500 years of Canadian practice, and one does not promote Canada by dismissing Canadian practice.
If the purpose of Bill 22 is to provide allegiance to the Canadian state, it is an unnecessary bill, because that allegiance is already embraced by the present oath. The Queen is the state. If members truly believe, as they say, that they do not wish to challenge our monarchical institutions, then they cannot support legislation that challenges the Queen's role as the legal embodiment of Canada and Ontario.
It must also be noted at this time that, with all due respect for Mr Agostino, the purpose of the MPPs' oath of allegiance is not to promote national unity or love of country, as important as national unity may be and as strong as our love of country may be. The purpose of the oath is to ensure that the members of the Legislative Assembly are faithful and loyal to Her Majesty the Queen. This commitment protects the people of Ontario by tying the members to the Queen's coronation oath. At her coronation, the Queen took an oath to "cause law and justice, in mercy, to be executed" and to govern the people of Canada "according to their laws and customs." Her Majesty legislates by and with the advice and consent of the Legislative Assembly of Ontario. By swearing to be faithful and bear true allegiance to the Queen as legislators, you are therefore bound by the oath that you are taking to act in accordance with the Queen's promise to the people of Canada.
It is also important to remember that the oaths are reciprocal. The Queen takes an oath to Canadians, and Canadians swear allegiance to the Queen. Except through the person of the Queen, Canada cannot take an oath to Canadians in return. It doesn't exist in the sense that it can take an oath. It is fundamental to our tradition of law and freedom that the commitments made by the people are reciprocated by the state. Reciprocal oaths are essential to our Canadian concept of government. Bill 22 proposes an oath that cannot be reciprocal and therefore it is unacceptable.
Then there is the question of national unity. Even if Mr Agostino were justified in claiming that the purpose of the oath of allegiance is to promote national unity, his bill does not fulfil its stated purpose of doing so. The current oath, as an added benefit, does support national unity because all senators, MPs, MPPs, MNAs, MHAs and MLAs in Canada take the same oath. There is no difference from Newfoundland to British Columbia. Mr Agostino would give us a crazy-quilt system with each province having its own second oath.
While there are grievances across the country, it is only in Quebec the unity of the country itself is at issue. No one doubts that Ontario's MPPs are committed to national unity. But Quebec will never adopt this new oath of loyalty to Canada, even under a non-separatist government, so Mr Agostino's bill would only result in legislators outside of Quebec proclaiming loyalty to Canada and those inside Quebec not proclaiming such loyalty.
The Parti québécois government removed the national flag from the Quebec National Assembly when it took office in the 1970s, but the Liberal government did not restore it when it returned to office in the 1980s.
This bill would foster and highlight disunity, not unity. If the Ontario Parliament wishes to promote unity, it should direct its energies to reaffirming, explaining and promoting the current oath of allegiance to the Queen, which all legislators, including those in Quebec, must take.
Dr Richard Toporoski: Mr Agostino also maintains that his bill is not meant to attack the monarchy, but there is a great gap between intent and effect. The bill would hurt the monarchy because it would diminish the role of the Queen. It presumes that the Queen is not the legal embodiment of Canada and thus diminishes the significance of Her Majesty.
It attempts to create a dichotomy between Queen and country, which does not now exist. This is also unacceptable. The monarchy is not an add-on to Canada; it is the constitutional basis of the country. The Queen is not just an admirable woman; she is the face of Canada.
Finally, what does loyalty to Canada mean separate from loyalty to Canada embodied in the Queen? Does it mean loyalty to Canada in its entirety, to all its people and ideologies? That is the most obvious meaning. But no one can say that he or she is loyal to all that is Canada and no one should be asked to say that or to be that.
Are the New Democrats and Liberals on this committee loyal to the Conservatives' policies and vice versa? Of course not. But that is what loyalty to Canada in its entirety would mean, because conservatism, liberalism and socialism are all part of Canada, and Canada includes much that is not even worthy of loyalty.
In addition to being the home of undoubted virtues, there is racism, crime, poverty in Canada. There are bigots and criminals among our fellow Canadians as well as honest and generous people. Canada includes all that makes up the country: good, bad and indifferent. To deny that is to deny obvious truth.
Supporters of this bill will argue perhaps that that's a silly statement. They may say that we are not loyal to what we recognize as bad, rather we are loyal to what we consider good in Canada, but that means we are not loyal to Canada as it really exists but only to our own subjective view and definition of "Canada."
In other words, we are really being loyal to ourselves as individuals, and once you start qualifying the definition of "Canada" by excluding those things and people that exist here but which you reject, you start down the slippery yet inevitable slope of classifying those who hold different views as not really being part of Canada. You start on the path to a committee on un-Canadian activities, a path which our equally well-meaning American neighbours travelled with disastrous results.
What does that leave? Is it not that when we say we are loyal to Canada, we mean we are loyal to the politically impartial Canadian state which must serve us all? That is a proper loyalty, and that is what the Fathers of Confederation understood when they established the oath of allegiance in 1867, and what generations of Ontario parliamentarians have understood in maintaining it.
The state, as such, holds no political views and can embrace us all. In Ontario in the past decade, it has had a Liberal, a Socialist and now a Conservative outlook, but it is the same state. That brings us back to where we started. We have an oath of loyalty to the Canadian state, and Canadian constitutional law defines the state as the Queen.
Mr Toffoli: There are also many questions concerning Bill 22's constitutional validity. These need to be fully investigated. Mr Agostino and others correctly noted during the debate on second reading that the current oath of allegiance cannot be changed by the Legislature of Ontario. Some MPPs incorrectly stated, however, that it was up to the Parliament of Canada to change the oath. In fact, the oath is part of the Constitution of Canada, provided by section 128 and schedule 5 of the Constitution Act, 1867. It can only be changed by amending the Constitution. That would require the support of the Senate, the House of Commons and at least seven provinces. Under the recent decision by the House of Commons, any amendments to the Constitution require virtual unanimity. Since the oath relates to the office of the Queen, it probably requires the unanimous consent of the Senate, House of Commons and all provincial assemblies to amend it, as provided by the Constitution Act, 1982, section 41. Section 41 uses the broad term "in relation to the following matters" when referring to the office of the Queen. That includes not just the existing law, but the subject the law deals with as well.
Therefore, can the Ontario Parliament create a second compulsory oath of allegiance such as Bill 22, which clearly attempts to legislate in an area of existing constitutional legislation? Section 128 does not say "an" oath of allegiance; it says "the" oath of allegiance. Is there a constitutional basis for two oaths of allegiance?
I might mention at this point, and we can discuss it later, the situation in Quebec was mentioned, but Quebec has not been unknown to pass unconstitutional legislation in the past 20 years.
The Constitution also provides that there shall be a Lieutenant Governor for Ontario appointed by the Governor General. Do you believe that Ontario could pass a law establishing an elected provincial president in addition to the Lieutenant Governor and maintain that it did not contravene the Constitution because it was in addition? Bill 22 is an attempt to avoid the intent of the Constitution and there is no way to pretend it does not. It is ironic that the bill would have members swear to perform their duties in conformity with the Constitution and yet flout that very Constitution.
Was the oath of allegiance, by being put into the Constitution, not purposely removed from ordinary provincial jurisdiction? That is what constitutional law does. By what authority does a Legislative Assembly presume to create its own oath? While the Legislature may establish the qualifications and disqualifications of MPPs, subject to the Charter of Rights, does that include oaths of allegiance? We would draw your attention to section 84 of the Constitution Act, 1867. Section 84 provides for election laws existing in the province of Canada prior to Confederation to continue after Confederation in the new province of Ontario until its Legislature otherwise provides.
Among these laws are those "...relative to the following matters or any of them, namely, -- the qualifications and disqualifications of persons to be elected or to sit or vote as members of the Assembly of Canada, the qualifications and disqualifications of voters, the oaths to be taken by voters...." Notice that the oaths to be taken by legislators is not included.
It is clear that the expression "qualifications and disqualifications of MPPs" in this section does not include oaths, because the two categories are listed separately for voters in the same section of the Constitution.
Also, assuming it could establish a second oath, can the Legislature establish an oath of loyalty to Canada without first establishing a legally binding definition of "Canada"? Can you have laws without the law being defined? It is not good enough to say that we know what it means. We do not know what it means. I have talked to many people who have said they want an oath to Canada, and every one of them has given me a different definition of what they mean by "Canada." Trying to establish such a binding definition will lead to enormous disunity.
I might add at this point, if you have a law that says "must be loyal to Canada," that implies your ability to expel a member from this assembly who does not hold that oath. So oaths are not just pious statements, they have to be enforceable, and that's why you need a definition of what you mean by "Canada" if you're going to put that in, so that you can then enforce it against people who are charged with not being loyal to Canada. We know what it means to be loyal to the Queen. That has been defined in Canadian law.
Would such an oath, not being part of the Constitution itself and thus subject to the Charter of Rights, not violate the charter by placing an additional impediment on the democratic rights of Ontarians? Section 3 of the charter states, "Every citizen of Canada has the right to vote in an election of members of the House of Commons or of the Legislative Assembly and to be qualified for membership therein." An oath to an undefined Canada, which could and probably does imply a commitment to certain ideological values, cannot be imposed on a Canadian citizen before allowing the citizen to take a seat in this assembly.
What should the Legislative Assembly do? The current oath to the Queen is an oath to Canada, so there is no need for a new oath. All that is needed perhaps is a better understanding of the existing oath. That seems to me what Mr Agostino has really been talking about, at least initially, in why he felt the need to take a second oath. There are no constitutional impediments to doing this, and it will serve national unity better by strengthening the oath that all legislators in Canada are required to take.
We would like to express to this committee our agreement with the suggestion put forward at second reading by the Premier's parliamentary assistant, Julia Munro, MPP. Her suggestion was that when administering the oath of allegiance, the clerk who administers the oath could describe the significance of the oath with a statement such as:
"Her Majesty, the Queen, is the sovereign authority of Canada and Ontario. At her coronation, Her Majesty took an oath to govern the people of Canada according to their laws and customs and to cause law and justice, in mercy, to be executed in all her judgements. You are now asked to take the oath of allegiance by which you will be binding yourself to Her Majesty's oath to the Canadian people, and through Her Majesty, committing yourself to serve the people of Ontario."
Such an introduction would accomplish, we believe, all the purposes Mr Agostino has given for his private member's bill, it would affirm the monarchical nature of Canada which Mr Agostino and others who support his bill have said they wish to do, and it would not violate the Constitution of Canada. It is the course we strongly urge this committee to follow, to live up to the motto by which Ontario society has always lived: "Loyal She Began; Loyal She Remains," loyal, that is, to the sovereign.
The Chair: Thank you very much for your presentation. I'd like to now inquire if members have questions on the presentation we've just heard from the presenters.
Mr Stewart: I have one. It's a comment, I guess, more than anything else. It's on page 3, the last line of paragraph 3. I don't mean this, sir, in a critical manner. Certainly the Queen is a most admirable woman, but your comment that she is the face of Canada, I have difficulty with that one, because the face of Canada is the Canadian people who live in this great country. I have a grave bit of difficulty with a statement like that. You don't seem to give very much -- whatever -- to the Canadians. She didn't build this country, they did, and your reference to her still being the face of this province or this country I have difficulty with. I'm not trying to be nasty. I just am a Canadian through and through, and that type of statement I have difficulty with, sir.
Mr Toffoli: I take your point that you're not trying to be insulting or whatever. I quite understand that. In fact, it leads to a point I would like to raise myself, because it was raised by Mr Agostino in previous questions.
To say that the Queen is the face of Canada is not to say that the people of Canada have nothing to do with the country or that there's a contradiction between the two. As one who was born in Canada and has a mixed background -- on one side, I can trace my family back to the 19th century in Canada, and on the other, to immigrants from Italy in this century, so I don't see the contradiction between the two.
To say that the Queen is the face of Canada is that the Queen is the constitutional face. The Queen is the image that projects Canada to the rest of the world. The Queen speaks for Canada when she speaks to the representatives of other states. This does not mean that the people of Canada are somehow excluded.
The point that brings me to is that Mr Agostino mentioned, and the question was raised, about the Quebec oath that they have added, and also the question of oaths taken in other countries. Mr Agostino was referring -- in sincerity, I'm sure, but mistakenly, and then it was corrected by someone -- that the oath that was added in Quebec is not to Quebec, is to the people of Quebec.
That is a very important constitutional distinction. If it is possible to have a second oath and if one insisted on having it -- I don't think it is necessary -- clearly the oath would have to be, as they did it in Quebec to the people of Quebec, to the people of Canada, to the people of Ontario. The Queen is Quebec in constitutional law; the Queen is Canada; the Queen is Ontario. If you try to have a second oath that says, "We are loyal to Canada," you've already said it. You either mean the Queen therefore is not Canada, which is unconstitutional, or you are repeating yourself, which is meaningless. When Quebec wanted to proceed in this form, they quite properly, if they were going to have such an oath, added to it "the people of Quebec," which is distinct from "the state of Quebec," which is the Queen.
I won't say there are no countries, because there are probably countries we haven't seen the evidence for, but to the best of our knowledge, no country in the world has an oath to the country. The American oath is not to the United States; it is to the Constitution of the United States. We checked with the high commissions and embassies of various countries and every country told us they either do not have an oath or the oath is to the constitution or some way of expressing the country. No country that we consulted had an oath to the United States, to France, to Germany etc.
Mr Gilchrist: Thank you very much for your presentation. You've raised a number of excellent points, including one I hadn't noticed and I think it's a pretty compelling one, that section 128 of the Constitution Act refers to the subject of concern that brought about all this as "the" oath of allegiance. While we in this House sometimes play fast and loose with the English language in terms of the rhetoric of debate, I don't think there is much disputing that "the" is specific. It does not say "one of" the oaths of allegiance. It is it, and so I agree with you on that point wholeheartedly.
The suggestion on page 6 that having a preamble to the oath of allegiance, or something where the Clerk would recite a passage to a member and your response will be the oath of allegiance -- your confirmation that everything you've just heard from the Clerk meets with your approval -- I think is an excellent one. Are you comfortable? Is this a proposed wording that the Monarchist League would be happy with?
Mr Toffoli: Yes, this is a proposed wording. That's obviously what we would be happy with, but something very close to that. If I may respond, I agree; obviously we agree, because we submitted it. If the feeling is that people don't understand what you are swearing to, what the oath is, what this is all about, what commitments you are making, I don't see how taking an oath, "I am loyal to Canada," clarifies that in any way.
If the oath to be loyal to the Queen is not clear enough, the oath to be loyal to Canada when, as I have said, there are so many interpretations of that, surely if the members hear the coronation oath, which is the source of all those in Canada, the significance of what they are doing would achieve the legitimate concerns of Mr Agostino. I think he has legitimate concerns. I just think his solution is improper.
Other MPPS might well have that same concern, and I would think something like that in the way of a preamble would achieve all that purpose. It would be repeated every time and yet it wouldn't require any concern about whether or not this is legal, whether or not this is constitutional; it would avoid all the problems.
Mr Gilchrist: Let me just ask you for clarification on one other point. Reference has been made, and you have made reference as well, to the second affirmation or oath taken within Quebec. This one does not use the word "allegiance" or the words "pledge allegiance" a second time. It merely states, as I said earlier, that their first obligation as elected officials within Quebec is to the people of the province who elected them. I find nothing odious about that, I think it's quite appropriate and I know I would vote for something similar here if that were on the table.
Have you discovered any jurisdiction where there is a second affirmation of any kind that uses the word "allegiance"? In other words, there might be supplementary undertakings made in the course of swearing in. In fact I note in the Quebec one, and this may be subject to interpretation from the French, over and above the mandatory oath they have added, "Her heirs and successors according to law, so help me God." That is not contained in the Constitution Act. To some extent, we may find examples of where people have put suffixes on to the original. Have you found any jurisdiction where they come out and make a second allegiance? Can you serve two masters, in other words?
Mr Toffoli: Not to my knowledge.
Dr Toporoski: This isn't quite a parallel, but you may have read about the controversy in Australia of no longer requiring persons who are going to acquire Australian citizenship to swear allegiance to the Queen. The last government was very nasty on that subject. Because there were legal problems about this, they simply ask new Australians now to pledge a fuzzy -- they don't use the word "allegiance" precisely because the lawyers tell them. Some people are questioning: "Have these new Australians in fact become Australians? Have they fulfilled the law?" They certainly haven't sworn any kind of allegiance precisely.
Mr Gilchrist: I note that there was recently an election and that the government which did that was just thrown out on its keister. The new Liberal government, which is really their Conservative government, has indicated there is no longer a march towards republicanism, and we may very well see a reversal on that one as one.
Mr Toffoli: Your point that Quebec does not use the word "allegiance" in the second one -- I didn't have it handy in front of me; I didn't want to refer to that specifically. You have highlighted, and there's the example of Australia and the problem there and in other countries, that the real problem is using the words "allegiance" and "Canada" because allegiance is owed to the state and the state is already defined. So yes, if you put in a second oath that didn't use the word "allegiance" and talked about the people of Ontario -- that's the next question: Why not include the people of Ontario? Those are the people you're serving, not the people of British Columbia or the people elsewhere, so there's that whole point. But removing the word "allegiance" and referring to the people would certainly alleviate much of our concern on that specific point.
Mr John Hastings (Etobicoke-Rexdale): I had taken your presentation, and I hope you'll take it in the right comparative light, as being almost similar to a strict American constitutional constructionist view of the Constitution, if you were living back during the Civil War, just prior to the breakup of that country. I'm wondering how you come up with the statement that Canada could be defined in so many ways. Were you referring to those ways as being geographical and psychological or cultural?
Mr Toffoli: I wouldn't exclude any of what you said, and Richard may want to speak to this as well. Because our tradition has been to leave much freedom for interpretation and understanding of what the community is under the crown, we have not tried to define what Canada is. The essence of our constitutional approach has been that we have a very narrow and specific definition of "allegiance" to the sovereign, who is the state. Once we have what you can call a minimalist approach, it's the essence of our democracy that you have to have some focus of loyalty, of allegiance to hold a country together. But you want to make that as defined, as narrow, as strict as possible to allow the greatest flowering, understanding and appreciation of the country. That has been our tradition. So yes, we have a very narrow definition of "allegiance" to allow the greatest definition of what Canada means. I would include all those. I think Canada includes the geographical boundaries, but what happens if those boundaries change? Mr Agostino made the point, a very valid one, "I'm a product of that change in Canada," that the Canada of today has evolved. The Canada of today is not the Canada of the 1940s, the 1950s or the 1960s.
Does that mean the nature of your allegiance is changing? If we had had an oath to Canada in the 1950s, would that have meant that the people who took the oath to Canada as it then existed are precluded from seeing that Canada change? That's what the words mean. If you take an oath to Canada as it exists today, does that mean, if someone wants to change Canada, that you somehow must stop that, or if you want that, that you are against Canada? When I hear debates in the Legislature, I hear opposition members, whoever is the opposition at the time, saying that the government is destroying the country, that their policies will ruin what stands in Canada, the values. At present, if you remove certain government programs, this is destroying the country. I assume that the people who make these accusations and the people who defend against the accusations in each case are sincere in what they are saying. If they are sincere, then the opposition is accusing the government, or vice versa, of being against Canada every day in the House. That's what it means, and as legislators you deal with words. Ideas and words mean what they say. You can't escape the logic of words.
Mr Hastings: Let me ask you this question. I originally supported getting this to committee and I didn't have a problem with hearing the debate, but I was starting to reflect back that maybe one of the reasons -- I'd like to hear your comments on this: To what would you ascribe this tendency or trend to want to have a swearing of the oath to a country? My first impression is that possibly part of this muddled thinking -- I'm not attributing it to Mr Agostino at all, but in general -- is attributable to a fundamental lack and absence of teaching history in our schools any more, and particularly the utter failure of ministries of education, including that of this government, to place an appropriate stress on the role of the sovereign, the Queen, whether you agree with that or not in terms of what you see with what has emerged in the thinking in Australia, where new citizens in the last three years don't even know if they're really true Australians. Is there some validity to my impression that it is due to the failure of history being taught in the curriculum any more in terms of the Constitution and the evolution of Canada?
Mr Toffoli: I'll ask Richard. Richard is an associate professor at university. It's his field.
Dr Toporoski: But in classics. If I could speak personally, a little bit from the heart, I think that's absolutely right. There is a failure in our educational system. Canadians don't know how they got to be Canadians and why they are Canadians. If I can think back to 1970, when the Parti québécois was elected for the first time and the referendums that came later, I thought to myself, "No, nothing's going to happen; everything will be the same." It was only in the middle of last October that I thought to myself, "Uh-oh, look at those polls; things look bad," and suddenly the utter chaos and confusion was upon us. I think the desire is on the part of people to say something positive about Canada, about Canadian unity. The problem is, as Mr Toffoli has pointed out, what does this fuzzy concept of Canada mean?
I have come to the conclusion, and this is my thinking now -- I am prepared to be argued out of this as time goes on, as we see developments, and I would have beaten Richard Gwyn into print had the issue of Monarchy Canada in which I said this gotten out sooner -- that ultimately we have to try to do the best we can to keep Quebec united with the rest of Canada and maybe we're going to have some kind of Austria-Hungary relationship. That's what he said. Later on he came up with an idea I hadn't thought of, that maybe we need a Wallonia-Flanders relationship as in Belgium. It's interesting that in both of those cases the link between them is the sovereign who presides over both, who in a sense is both because he is neither, if you like.
I have thought of another one: the relationship that existed for 90 years between Sweden and Norway. Quebec wants to keep so many things in common. Norway had its own consular service but it was represented by the ambassadors of the King of Sweden. Maybe we're going to have to have some very loose relationship but keep as many things as we can talk Quebec into wanting to share with us.
If I were to present myself as a candidate for election to the Legislature of Ontario and these were known to be my views, would someone say: "You can't sit here; you don't believe in the Canada I believe in," because I couldn't in conscience swear to this absolutely united Canada because at this point I'm plumping for a kind of extreme, asymmetric federalism? I think that might be the only thing we can talk them into ultimately -- try to talk them into as many things as possible, but maybe they won't go along with too much.
On the other hand, there are a lot of Canadians who say: "Yes, yes, I can swear this oath. I believe in Canada, but if those Quebeckers get out, well, get out. They can't share our citizenship; they can't share anything." I would say those people aren't really loyal to the Canada they want to be loyal to. Who is to choose which of us is being loyal to this concept of Canada, because it is so undefinable?
Mr Hastings: That's why you're advocating Ms Munro's possibility as some way of trying to reflect our esteemed member for Hamilton East in dealing with the problem, although I'm sure he has a completely different viewpoint on it. I'd like to hear his views on her suggestion and your reaffirming that.
Mr Toffoli: As I said at the beginning, we know Mr Agostino supported the retention of the Queen in the police oath in Hamilton. He had a good record from our point of view, not that we were there to judge him per se, but we had no problem with Mr Agostino and I appreciate his concerns. It's his solution that we have a problem with, not the concerns. The point we emphasize each time -- we repeat, but you can come at it from many different perspectives and you still get the same problem.
I can give you another example: What you take an oath to is that which is beyond debate. In the House, for instance, we mention that you take an oath to the Queen, and the Queen's representative is the Lieutenant Governor, as you all know as members of the assembly. When the speech from the throne is read, either here or in Ottawa, you do not debate the speech from the throne, because that would be challenging the Lieutenant Governor, questioning him, criticizing him. The Lieutenant Governor reads the speech from the throne, then the government reads its response to the speech and then the opposition attacks the government's response. That's a form, if you will. It's perhaps a formality, but the concept is the same. Because you have taken an oath to the Queen, you cannot attack the Queen's representative.
If you've taken an oath to Canada, you cannot attack Canada. But you are attacking some aspect of Canada every day in the House. That's why we have a Legislature. If we all knew what Canada meant, if we all agreed, we wouldn't need a Legislative Assembly, we wouldn't need democracy, we wouldn't need any government. Everything would be set out for us. Why would we be sitting here?
We are debating right now the whole notion of what Canada is. You don't put that which you want to debate, which you want to have open for discussion, for growth, for change -- what was relevant 50 years ago is not relevant today, so we change it. We're now different. You want to have that freedom. You can say this is just a PR statement, but it's going to be a law. Laws must be obeyed. If you expect people to obey the laws that affect our daily lives, we will expect legislators to obey the laws they set for themselves. So yes, you will have to obey the law. That's why you don't try to put in something as broad as an oath to that.
Mr Agostino: Just a question to the gentlemen. I appreciate the tone of the paper. We've agreed on issues in the past. We disagree on this one, but certainly I appreciate the role that you continue to play.
The first question is, do you agree with what the Conservative government did in reference to the oath police officers take when they get sworn in as police officers? Do you agree with the change they made that police officers now have the choice to swear either to the Queen or to Canada?
Mr Toffoli: No, we do not.
Mr Agostino: You felt that the government should not have restored --
Mr Toffoli: What we submitted to the government was that -- well, there were a couple of changes. Actually the old oath that the police took was not an oath of allegiance, to start with, it was an oath of service. We thought that distinction should have been restored, that no one had asked police officers to take an oath to the Queen or anybody else before; they were asked to take an oath to serve the Queen.
Our suggestion was along the line -- I don't have the actual thing we submitted, but I can tell you it was to the effect that the oath should have referred to serving the people of Ontario. Again, we wanted it not to be an oath of allegiance so we suggested the oath should have been something along the lines of the police officers swearing to faithfully serve Her Majesty the Queen and Her Majesty's people in Ontario -- I've forgotten the exact words -- and all people under Her Majesty's protection in this province.
Having two oaths -- if I were a police officer, say, or appointed to a police commission -- I'm not looking for an appointment, so I'm not expecting one -- but if, for instance, I was found in that situation, I couldn't take the police oath as presently constituted, because to my mind it would mean that I would be taking an oath that the Queen and Canada are not the same, or that the "Canada" incorporates things I do not believe in. If I were asked to take an oath to serve the people of Ontario as a police officer, I'd have no problem taking that. So the short answer is no, for the same reasons that we object here, we objected to that specific change.
Mr Agostino: Most police officers across Ontario, I think, welcomed the change and saw it as a change that was necessary.
Mr Toffoli: I think because they wanted to take the oath. It's an improvement in appearance, because they wanted to take the oath to the Queen, but constitutionally I think there are a lot of problems with the way it was worded.
Mr Agostino: Just a small point on this -- I understand the concerns. What I guess I still have a difficult time understanding is if we kept the initial oath in place as it was, as it is and as we have no authority to change, and added a second one that would repeat -- even if I grant to you that it does repeat what the first one does and that second one repeats -- but says the word "Canada," can you tell me what your objection to saying "Canada" in the second oath would be, why you're opposed to the word "Canada" in our oath of allegiance, our second oath that we take?
Mr Toffoli: The second oath, yes. Two specific points: One, we don't know what you mean by "Canada" and that's the whole crux of this discussion. If by "Canada" in the second oath you mean the state, then you would be asking me to take an oath that I considered the Queen and the state to be two separate things. Because I'm taking an oath to the Queen and then I'm taking an oath to the state, I'm thereby acknowledging that the Queen and the state are not one and the same. I do not believe that. I could not take that oath.
If, on the other hand, you say "Canada" in that context does not mean the state but means something else, then all right, I can accept that. What else? Unless I know what else -- if I take the oath, I won't be the one defining it. Some judge or some Legislature may come along and say, "You took an oath to Canada, this is what `Canada' means, and you are not abiding by that," and I say, "Well, that's not what I meant; that's not what I thought I meant," who's going to define? Unless it's predefined. If you want an oath to Canada, define "Canada" first, then ask me whether I'll take an oath to it. I guess that would be my response. If you want me to take it, I have to know in advance what exactly you mean by it, because we agree we have different views what it means.
Mr Agostino: I think what makes this country what it is is the fact that we don't have one defined, boxed definition of what Canada is, and I hope to God we never get to that point. I think it's important, because the beauty is that we can do that and Canada can mean to all of us the freedom of expression, the freedom of principles that we choose, the freedom to live our lives the way we want to, and that is what makes Canada. To me, taking that second oath to Canada gives you that opportunity to define Canada in your mind the way you want it to be and the way you envision Canada. I don't want Canada to be a box where we all must think this way and this is exactly what Canada should be like. If you want the clearest vision to me of Canada and what symbolizes Canada to me, that is the maple leaf and the Canadian flag, and that is the first thing that comes to mind when you want to talk about Canada. What symbolizes it is that maple leaf and that Canadian flag, to me, and that's what defines us around the world.
Mr Toffoli: Mr Agostino, if I may respond, we are in entire agreement, at least with most of what you were saying there, about the diversity of what Canada means, and I think that was the most eloquent argument why not to have the oath.
If you're saying you're taking the oath for what it means to you, there's nothing to prevent you from doing that. You are able to take a second oath. What you are trying to introduce is a compulsory oath that every member must take. You were told you cannot change the existing oath, but everyone is free to take another oath. You took a second oath. The Bloc québécois members in Ottawa took another oath themselves afterwards. There's nothing to prevent us as individuals from taking oaths as to what we believe in. That's entirely a personal decision and on that level, if a member now feels he wants to take an oath to something else, it's not a legally required thing, but you are able to do it. There's nothing to prevent you, there's nothing to prevent any other member from also taking an oath to that or taking an oath to national unity. There's nothing to prevent that right now.
Mr Carl DeFaria (Mississauga East): I understood you saying that "Her Majesty the Queen" means "Canada."
Mr Toffoli: The legal embodiment of the state of Canada, the Canadian state.
Mr DeFaria: Right. If that's true, what's the difference in the proposed oath that just substitutes "Her Majesty the Queen" for the word "Canada"? Wouldn't it be the same oath from your interpretation of it?
Mr Toffoli: Then why have a second oath?
Mr DeFaria: Why not?
Mr Toffoli: Do you have redundant laws, repetitive? Is that what it means or is it an attempt to give another meaning, to say that the Queen is not the state? That's the question there. The one oath has already established that the Queen is Canada. We are suggesting that be clarified as a preamble to the oath. It seems to me that's a better way of dealing with it, a clarification of what it means. There's no problem with that. It's just when you come to the actual oath itself, because to me Canada doesn't mean that. Canada to me means all the things Mr Agostino spoke about. So when I say "Canada," that's what it means to me, in that context.
Mr DeFaria: But at the same time you say that you don't understand what Canada means?
Mr Toffoli: No. I'm saying Canada means everything that constitutes Canada, and that's why I can't take an oath to all that because I would admit that there are ideologies within Canada that I think are perfectly legitimate points of view for people to hold, but I don't personally hold them. There are religions in Canada, all of which are legitimately Canadian religions, but I have my own particular religion that I believe in. I respect the beliefs of others, but I don't share them.
When you take an oath of allegiance, you mean you are sharing not just the freedom to be different, but that there are no differences. I think it does the reverse of that. I get the sense that the members want diversity reflected, but an oath to Canada narrows the diversity, it doesn't expand it.
Mr DeFaria: Isn't your argument just an opposition to change? Aren't you just opposed to the change of someone preferring to use the word "Canada" to the words "Her Majesty the Queen"?
Mr Toffoli: But the Constitution already establishes the oath to the Queen, and the purpose of that is because the Queen is the state, so this Legislature cannot change the meaning of that. If this Legislature puts in a second oath, it has to mean something different from the first oath. The current oath is not an act of this Legislature, it's part of the Constitution. The significance of the first oath can only be changed by constitutional amendment, so if you're putting in a second oath, it has to mean something different from the first oath. You're not in a position to change the meaning of the first oath.
Mr DeFaria: So if we are not in a position to change it by adding the other oath, aren't we not changing anything other than repeating the same oath twice?
Mr Toffoli: There's no need to change the existing oath. The danger is, you're saying if you put in an oath to Canada it's going to mean whatever you're claiming. The point that we are making is one doesn't know what it's going to mean, because such oaths have not existed in our constitutional law. Therefore, a judge might well rule that it means something completely different from what you may think it means today. That happens all the time, especially with the courts ruling on constitutional matters. You can't guarantee to me that it's going to mean what you say it's going to mean today.
Mr DeFaria: I just don't understand what the word "Canada" can mean that would be adversely affecting the province or the country. The word "Canada" is just Canada. Canada may mean different things to different people, but the oath of allegiance that anyone serving in Canada takes is clearly to this country, although it's made to Her Majesty the Queen as representing the country. But the oath is still an oath of allegiance to Canada.
Dr Toporoski: But it's an oath of allegiance to Canada only in respect to the sovereign of Canada. Suppose someone having taking this putative oath to Canada held the view that the new relationship in Canada should be Canada-Quebec. Has he broken this oath? You made him take an oath to Canada, and he says, "My view of Canada and the only way we're going to survive is Canada-Quebec," like Austria-Hungary, like Sweden-Norway. I would have thought he'd broken the oath.
Mr DeFaria: Say that again.
Dr Toporoski: You have said you think that people could take an oath to Canada, whatever that means. Suppose someone in this current national crisis or binational crisis says, "I think the only solution, and I'm going to fight for this because I think it's the only way to preserve as much as we have, is for Canada-Quebec, and we'll call it that," and yet that's not what he took his oath to. I presume you feel he's broken the oath. A member of this Legislature not allowed to hold that position.
Mr Toffoli: In other words, say your colleague next to you felt that Quebec should be allowed to secede -- I'm not saying he does, but let's just say for argument's sake -- or somebody in the House got up and said, "I think the country should be broken up, that Quebec should secede." Should that member be then thrown out of the Legislature because he's disloyal to Canada?
Mr DeFaria: What does it matter what oath the person took?
Mr Toffoli: But if the person took an oath to Canada and then said, "I think Quebec should be allowed to go," which would break up Canada, is that breaking their oath to Canada? Does Canada mean the geographical boundaries of Canada today, and if you then say Quebec should leave, you are then breaking your oath to Canada? That's one interpretation.
Mr DeFaria: What if somebody took an oath to the Queen?
Mr Toffoli: The Queen is embodied both in the state, the provincial and the federal level, so that Canada has changed its geographical boundaries throughout. For instance, there was the province of Canada which separated into Ontario and Quebec. Ontario was founded by the separation from Quebec.
In the House of Commons in Westminster, British MPs got up during the American Revolution and said: "The American rebels are right. They should have their freedom. We shouldn't be keeping the 13 colonies part of the British Empire." They got up and said that. None of them were expelled from the British Parliament for saying in effect that the United States should go its own way. Irish nationalists stood up in the British Parliament and were not thrown out for that reason.
I must admit, we had the Bloc québécois in Ottawa who I think should have the freedom to say what they're saying. The United States, by contrast, when the 13 colonies were created, if you didn't support independence you were expelled from the Congress. All these things could be used against -- you don't know what it's going to mean; that's our whole point.
Mr DeFaria: So you're saying it's more palatable for someone who took an oath of allegiance to the Queen to agree to back separating than to somebody --
Mr Toffoli: I must admit, it's not breaking your oath to the Queen if you happen to support changes.
Dr Toporoski: What you are committing yourself to in an oath to the Queen is not to plot against her person, her crown or her dignity, so I think you would be maintaining that she should remain the Queen of that portion of Canada called Quebec. You would be fighting for a fundamental part of Canadian unity in fact.
Mr DeFaria: You are saying that it's more palatable for someone who took an oath of allegiance to the Queen --
Dr Toporoski: How do you mean "more palatable"?
Mr DeFaria: -- to go on record agreeing to separation of Quebec.
Dr Toporoski: Are you saying that in a free and democratic society a person isn't allowed to hold the opinion that there should be a looser or indeed a separate relationship between Quebec and the rest of Canada?
Mr DeFaria: I think they are not understanding what oath they take.
Dr Toporoski: But if you've made them take this oath to Canada, then you've limited their ability even to discuss or to explore the matter.
Mr DeFaria: No, because Canada can evolve, just like our Constitution has evolved. A lot of things have changed in our Constitution.
Dr Toporoski: Yes, but the sovereigns change by death normally, so the oath passes on to a new sovereign, so why is it a necessity to have this oath to an undefined -- I can't tell now whether it's an ideology or a piece of geography. We're back to our original argument; we don't know what it means.
Mr Toffoli: The problem is we're getting into so many convoluted things and that's our whole point, that if you pass a law and it says you cannot drive through a red light, you know what that means. There's a red light; if you drive through it, you get charged and you're fined or you cause an accident, whatever. You have a specific law that's easily definable and you know what the punishments are if you break that law, and therefore everyone knows where they stand. That's what law should be.
Our point is, from this discussion nobody knows what we're talking about. Everyone here seems to have a different idea of what we're talking about when you say what the oath is going to be, what the punishments are going to be. I want to know what you mean. What are the punishments. How are people punished by not abiding by this law?
Mr O'Toole: I know it's a very convoluted argument, so I won't protract it any longer than necessary. I just want to go on record as saying at this time in Canada it's extremely important that we all recognize the tenuous nature of Canada and the importance of Canada remaining as one country. That's my starting position. I don't have a problem with the fundamental premise of Mr Agostino's bill.
I do have some questions to work through, I suppose, and I'm sure this will get a little further debate, but I think we're subverting, in some ways, the very constitutional law aspect of this whole thing by introducing this definition of Canada. I could go on to say, "I've defined the Queen or the monarchy," if you will, and then I go on to define Canada, then I go on to define Ontario, or at least in my oath priorities I'd say I'd be right down to defining Durham East, right down to defining the particulars within my constituency group which may be cultural or religious. So subtly I could be subverting the whole thing by saying, first of all, yes, and go right down the list.
What if I just started by saying, "I want a second oath," and it says I only support this new thing, whatever this new thing is? "I'll do the Queen, I'll do Canada, but I want this new one, this new one that says I only support this other thing." I think we're subverting. Do you know what I mean? Somewhere down that priority list -- my point is this, if I could make a point, and perhaps you could respond: Your argument seems to be premised on the view that we found at the highest order some undefined or defined shared value, ie, the monarchy. The moment you move down to the next order of protocol, ie, Canada, it's in the definition legally of what is that. Is that not the premise of your whole argument? If I move down to Ontario -- well. Do you know what I'm saying? If I move down to my own constituents -- really, I'm here representing them theoretically but I subjugate my beliefs for the greater good of all of Ontario; indeed, I suppose, Canada. Can you respond to that sort of --
Mr Toffoli: Yes, I think I agree with that. I would say, yes, that the Queen is an objectively definable --
Mr O'Toole: Common system.
Mr Toffoli: Common system, yes -- and that what we believe, not just we personally, what Canadians have always believed, is that within that there are many --
Mr O'Toole: Cultures, beliefs, whatever.
Mr Toffoli: -- cultures, many levels, and you want as much diversity and as much freedom to express and define that in the way you want. Therefore, every time you try to define another portion you narrow it. Definition, by its nature, excludes. If you define something, if you say, "Define Canada as this," you mean it is not "that." So the more definition you put in, the more exclusive you become. We think Canada should not be narrowed in that way; it should remain as broad as possible, and that's why we don't get into trying to --
Mr O'Toole: I won't go on, but I think one of the best -- one of the cutouts was the one on the Bouchards and their requirement to take a secondary oath, in their view. A bloc group took a secondary oath which trivialized, in my view, the first. In that respect, it's a subtle disrespectful statement. I'm not suggesting for one moment yours are, but as time moves on -- I'm no person who would be classified as resistant to change, but we have a shared system and I think the subtle compromise here might be to recognize the members' ability to choose to take a second oath. That may be Canada, it may be something else. I'm sure in the year 2010 we'll be still talking about what I'm elected to represent. Jeez, I don't want to narrow that down too much. I'm supposed to be here to represent all the people, regardless of their culture, ethnicity and all the rest of it. It's everyone. Greater good for the common --
Mr Toffoli: And, as we said earlier, that option to take a second oath already exists. This bill would create a compulsory second oath that would be the same for everyone that they would all have to take.
Mr Shea: I really have to make sure I start reading the minutes of this committee from now on with greater diligence. This is intriguing, and I pray that somehow the minutes of this meeting don't get to some graduate students in Canadian history. There would be some intriguing discussions going on.
I have to, for the purpose of the minutes, dissociate myself from some of the comments of my very fine and distinguished colleague Mr Stewart, but it does raise a point that two of my colleagues, who I think have focused upon inadvertently in their questioning -- and it goes back to the comment I tried to raise earlier -- I want to come back to this question on it now, because my good friend Mr Morin is now here -- when I did such a poor piece of French speaking when I said, "L'État est moi," which was surely Louis XIV's classic --
Mr Gilles E. Morin (Carleton East): "L'État, c'est moi."
Mr Shea: There you go, you're quite right, and now I've got it right. That's why I needed you here to correct me, and I appreciate that. I will never forget that from now on. I will use that in every second speech in the House from now on.
But that point is at the heart of what we're about at this moment in this discussion. How do you, as the Monarchist League, respond to the observations, outbursts, exhortations or puzzlement that are put to you by these two colleagues on this side of the room who do not understand that issue in the British tradition? They are expressing a view that becomes more prevalent, so how do you deal with that?
Mr DeFaria: Mr Chair, on a point of order: I wonder if Mr Shea was referring to me.
Mr Shea: No, I was referring to a number of comments in terms of the British traditions, the history.
Mr DeFaria: You indicated that someone doesn't understand the British --
Mr Shea: May not understand that significance. They may or may not, but the interpretation may be somewhat different. You may disagree with that interpretation.
Mr DeFaria: And I disagree with your comment.
The Chair: I don't think it's a point of order. It's a point of disagreement, perhaps, between members.
Mr Toffoli: To your question, Mr Shea, perhaps I should make a historical note that as far as the record goes, Louis XIV never said, "L'État, c'est moi." Historically, Louis never said it, but Elizabeth II could say, "L'État, c'est moi," because it is true. This gets into a very, I won't say convoluted as much as a complex issue, and I shall try to summarize the significance of that.
I think it is one of the great protections of democracy and one of the weaknesses of the republican system that in our system the Queen is the state and the people are not the state. The reason for that is that when you have a society such as ours where we recognize that the Queen, not the people, is the state, it therefore allows the people to stand apart from the state, to criticize the state, to not take responsibility for what the state may have done. It has been pointed out that in a regime where it is considered that the people themselves are the state, to oppose the state is to oppose the people, and when you do that, you cease to be the people. If the people and the state are synonymous and to oppose the state is to oppose the people, you put yourself beyond the pale; you're no longer one of the people.
A professor of history at McGill, who has studied the Russian system considerably, has pointed out that it was perfectly logical in Russia -- the Soviet Union, I mean, Communist Russia -- to send people to insane asylums when they opposed the government. Because the people are the state and to oppose the state is to put yourself beyond the people, therefore you're a non-person; it's a logical progression.
It is not a dictatorial concept that the Queen is the state. It is saying that the state and the people make up the country, and the people are independent free agents who can react to the state. That's very important.
Along the same line, there is another jurisdiction right now that's talking about putting in an oath to the country, and that is in Hong Kong, where Beijing is trying to have an oath to China put in for the legislators of Hong Kong.
Mr Shea: That's prior to 1997.
Mr Toffoli: Yes, prior to 1997, and the legislators in Hong Kong are resisting it with great strength because they know an oath to China means an oath to the Communist regime. I'm not suggesting that here, but that's why people don't have oaths. That's the importance of the Queen as the state. It provides the freedom of us.
Mr Shea: And that is certainly an interpretation within British history tradition. That is not necessarily a universal interpretation of allegiance or --
Mr Toffoli: It's within British tradition and many monarchical -- not all of them, but certainly British.
Dr Toporoski: Just in case this issue should come up, I came along with Arthur Berriedale Keith. Those of us who are old enough to have studied Canadian constitutional history when we were undergraduates will run into books like this, and maybe it's a book that younger people ought to run into. Berriedale Keith in this has collected a number of documents showing the growth, as he subtitles the book, from self-government -- when we were self-governing colonies at the end of the 19th century and beginning of the 20th century -- to national sovereignty. By 1931, the realms of the Empire had become independent countries. Now, what did that mean? He still calls them the dominions, because that was the language then. "The dominions are sovereign international states in the sense that the King in respect of each of his dominions is such a state in the eyes of international law." Up to that point, the British King was a state throughout the British Empire. Obviously, once we were independent, then he, presently the Queen, has become an independent state in respect of each of her independent realms. This is an international law concept.
Mr Shea: Let's turn our attention to what Mr Agostino is asking for. He wants what could be referred to as the Canada 2 oath, and let's pick up on that for a moment. Does it really matter, if an oath of allegiance is in the first instance taken in its existing form, which you agree is perfectly acceptable, if one then says that a member, or anyone else for that matter, may have a choice of doing any other oath afterwards or any series of oaths afterwards? Does it really matter?
Dr Toporoski: May I draw a historical parallel? Mr Agostino mentioned that Canada today is not the Canada of 100 years ago. Let's throw ourselves back to 100 years ago, to 1896. Interestingly, there were lots of problems of national unity then. The Conservative government in Ottawa was trying to defend Catholic schools in Manitoba, and it was falling apart. That's another issue. There was a great movement among the self-governing colonies of the Empire -- which in a sense were rather like the provinces of Canada at the time and ran all their own affairs; Britain wasn't running anybody's affairs -- and a lot of people who thought: "Wouldn't it be better if we had more unity within the Empire, not just a formal diplomatic unity with the rest of the world, but a closer unity? Perhaps we should have a central Parliament that can legislate on issues of concern to the whole Empire." As you know, this was the Imperial Federation movement at the time. Suppose someone had stood up in the Ontario Legislature and said, "In addition to the oath to Queen Victoria, I think we should taking an oath of loyalty to the British Empire." Where would we be now? We would have all said at that time: "What do you mean by `the British Empire'? What do you mean by such an oath? Do you mean a particular political project? You must mean that."
Mr Shea: But if we agree that the world is changing, and certainly the perspective of the world is changing in Canada -- and you've heard some questions and observations made even from this side of the room today that would indicate there are different ways of interpreting history -- does it really matter? If you first of all agree upon the first one and for whatever reason you say you will take that oath, whether it's for convenience or because you must do it, that it's in the rules and you have to do it, or if it's because you truly and heartfelt mean it, does it really matter what else you do subsequent to that, except if it's absolutely contrary to the first oath? Surely you wouldn't say the oath that's done in the National Assembly is repugnant.
Dr Toporoski: Suppose some person in Quebec complains to his member of the National Assembly, "You're not doing what I want you to do." Has he broken part of his oath because he isn't representing all the people, is opposed to a particular desire --
Mr Shea: To answer Mr Stewart's concern -- he spoke in a great populist feeling about the people -- if you were to say, instead of the one Mr Agostino's suggesting, that number 2 becomes, "I swear that I will be loyal to the people of Ontario," does that create any problems for you?
Mr Toffoli: There are two points here, one in particular. First, is it a compulsory oath or an optional oath? That's one question.
Mr Shea: It's an optional oath. We're talking about that right now, as number 2.
Mr Toffoli: That's right. It's my understanding -- I stand to be corrected -- that there is nothing to prevent a member of this Legislature from taking a second oath at his own discretion.
Mr Shea: And that would have no effect upon the first one.
Mr Toffoli: No. My opinion certainly would be that a second oath or a third oath or a fifth oath, if those oaths did not contravene the constitutionally required oath and if they were optional -- that is, you take your oath to the Queen, and then if you want to make a pledge to something else personally -- presumably you do that when you get elected; you're making a pledge to certain policies. If you want to renounce that, I personally don't have any problem. I can't see any legal or constitutional --
Mr Shea: So a member could have a menu of choices as number 2, but the first one is the primary --
Mr Toffoli: The Clerk might have some concern at the time this would take. But this is not what we're talking about; this is a compulsory second oath.
Mr Shea: So that's very clear. Finalizing that, the first one is the principal one, and Mr Agostino's motion is not negating that at all. As I understand his motion, that stays in place, and the optional one is the one he wants to deal with, which is the Canada 2 option. You're saying it seems to be saying the same thing all over again.
Mr Toffoli: Except that this bill would make it a compulsory second oath for everyone. People would not have the option of not taking it. That is the problem.
Mr Shea: So you concern is because it's compulsory.
Mr Toffoli: Because it's compulsory. My understanding is that Mr Agostino already took the second oath and was not prevented, once he made it a second oath.
Mr Shea: Got it. Thank you very much.
The Chair: Are there any further comments or questions by committee members at this time? Mr Agostino, do you wish to sum up?
Mr Agostino: I appreciate the discussion today. Very simply, my intent here is to allow within provincial legislation all members of the House that opportunity to ensure that when we swear an oath of allegiance, we maintain our tradition; that we also acknowledge the new Canada, acknowledge our own country, very directly. I think it sends out a very positive message to kids, to new Canadians and to the people who elected us to serve here as to our own feelings about this country. It is not harmful. It is an enhancement, an addition, and would really make a historic thing.
This bill cannot pass without the support of government members, and I want to assure you that this is not a partisan, political thing. When, hopefully, we get this bill passed through, I will very publicly, very clearly acknowledge that it could not pass without the support and the full consent of the government of the day, and that is why it has gotten as far as it has. I appreciate that, and I appreciate the fact that the government members supported the bill in the House and spoke in support of the bill today.
It really is an issue that crosses all political lines and has nothing to do with politics. There is clearly a change and evolution in our country, and one that most Canadians, from the calls I receive -- and I've had calls from coast to coast, and letters, hundreds. I've never had such an outpouring of public support on any issue. The most moving calls and letters came from veterans, people who fought for Canada during the wars, people who spoke and wrote very eloquently how important to them it was that elected officials mention Canada in their oath of office.
The Chair: Thank you, Mr Agostino, and thank you, gentlemen, for your presentation this afternoon. It's been very helpful to the committee in its deliberations.
At this time it is appropriate to move to a vote on this bill, if there's no further --
Mr O'Toole: Mr Chair, I move that we adjourn.
The Chair: All in favour of the motion to adjourn?
Mr Shea: On a point of order, Mr Chairman: Do I gather that Mr Agostino or no one else wants to have particularly Mr Robertson, who provided the research material, here to answer and comment? I gather that's the case.
The Chair: I don't think that's a point of order, Mr Shea.
Mr Shea: Then in the form of a point of order, will the Chair explain to me why the researcher who has provided the documentation for the committee is not present?
The Chair: I don't know that that's the case.
Mr Sibenik: Mr Robertson is an official with the library of the Parliament in Ottawa.
Mr Shea: I see. Are you prepared to answer for him?
Mr Sibenik: No. It's just a background document that was available.
Mr Shea: That answers my question.
The Chair: There's a motion to adjourn this committee. All in favour of that motion? All opposed? The motion is defeated.
We now move to a vote on the bill. Shall sections 1 through 3 of the bill carry? All in favour?
Mr Stewart: You're moving a little too fast for some of us slow fellows. I want to know what we're voting on, sir.
The Chair: You're voting on the bill, sections 1 through 3.
Mr Hastings: Before you do that, Mr Chair, I'm wondering if it would be in order to make amendments.
The Chair: Are there any amendments members would like to propose?
Mr Martin: You called the vote.
Mr Shea: You never even called for amendments.
The Chair: I apologize. The Chair made a mistake, and I would ask the members' indulgence. I did not ask for amendments and I should have done so. Are there any members who wish to put forward amendments to this bill?
Mr Hastings: Yes. Mr Gilchrist, I believe, wanted to propose an amendment.
Mr Gilchrist: Actually, a number of amendments. Not having sat on this side when amendments were proposed, do we do them one at a time? Are we doing these clause by clause, and if so, where are we?
The Chair: We would start with probably section 1. Lisa would like to address that.
Clerk of the Committee (Ms Lisa Freedman): The process would be that we would find out what sections your amendments are to. If your first amendment, for example, is section 3, we would then put the question on sections 1 and 2. If your first amendment is to section 1, we would deal with the amendment and then we would deal with the section. We just have to know the sections.
Mr Gilchrist: Okay. My amendments will be to section 1, the insertion of new section 2, the changing of the title, and amendments to the schedule.
The Chair: Do you have them in writing at this point?
Mr Gilchrist: Scribbling, yes.
The Chair: It would be helpful to have them in writing.
Mr Gilchrist: I'm told that despite asking our resource person outside to call me if there was a vote -- what's the normal procedure, since we've just said we don't want to adjourn?
Clerk of the Committee: There are a couple of procedures you can do. First of all, amendments are usually in writing, and often we have legislative counsel available in the committee room to assist in drafting amendments. Legislative counsel is on call until 6 o'clock tonight. If you don't need the assistance of legislative counsel, we would need the amendments in writing. The members have to know what they're voting on.
Mr Gilchrist: When are we mandated to go till, 6 o'clock?
The Chair: Yes, we are.
Mr Gilchrist: So if I ask for a 15-minute recess, it's much the same as a motion to adjourn.
The Chair: I'm advised that it's not appropriate to ask for a recess when there's no question on the floor.
Mr Gilchrist: Okay. But I'm told that amendments can be made orally. I don't want to do anything that's more troublesome than necessary, but they are significant and they will involve considerable debate.
The Chair: Would you like to put forward the first amendment.
Mr Gilchrist: One section at a time?
The Chair: Yes. Lisa will take it down, and we can have discussion on that amendment.
Mr Gilchrist: Do I start with the title or start with section 1?
The Chair: Section 1.
Mr Gilchrist: I would amend by deleting the word "schedule," and put in the words "Constitution Act, 1867, as amended."
The Chair: Would you care to explain?
Mr Gilchrist: I would be more than happy to. Making reference to the submissions made by the Monarchist League and the references we've derived from the research assistant, there is no doubt in my mind that there can only be one oath of allegiance. The enabling legislation in the Constitution Act speaks to "the" oath of allegiance. English grammar class was a long time ago, but not that long that I fail to make a distinction between "a" and "the." "The" is very specific. It indicates in this case that it is the only oath that may be taken by a member, and therefore I would find anything that leaves any confusion in the minds of the members or prospective members who are going to be asked to take this oath --
Mr Bartolucci: On a point of order, Mr Chairman, please: I have a great deal of respect for the Chair, you understand that, so my comments are not directed to you personally, but they are directed to procedure, because I feel it's very, very important.
We were in the middle of a vote. By any rules of procedure, once the vote has commenced, it must be completed. According to the rules of procedure that I've lived by at municipal council, at regional council and here up until this point, I always thought that was the procedure. Not that I want to scuttle the amendment process, but I honestly feel that if we're in the middle of the vote, the vote should take place. I think that's essential. Anything less slants or skews what is being debated here, and I don't know that that's the intent of anybody around here. So I must suggest that someone will have to rule on this. Clearly, if we were in the middle of a vote, the rules of procedure say that vote must take place.
The Chair: On that point of order, Mr Gilchrist, did you --
Mr Gilchrist: Yes, I do, most definitely. First off, I can speak from firsthand experience sitting in the chair of a similar case where the clerk had given me incorrect advice, and in the middle of another act, namely, a vote, I was corrected and we followed the appropriate course. It was not in that case to go to amendments, but it had been another procedural step that had been left out. So I can suggest that there have been cases where human error has been reflected by the appropriate action of the Chair.
Secondly, I think it bears comment that all of these submissions were received minutes before the committee started sitting today. Both sides have indicated in the commentary when Mr Agostino was making his presentation and in fact Mr Agostino himself commented that he hadn't read the submissions made in here. I would not think it likely that Mr Agostino would go into the House and vote on bills not knowing what he was voting for and not knowing the legality of what he's proposing to do, and I think that's exactly what we're being asked to consider here.
I can't speak to the Chair's motive in -- not motive; forgive me -- to why there was a failure to ask for amendments, but that is the appropriate course of action. So we've got two conflicting precedents in this case. You may say that once a vote starts, it continues, but it's also absolutely the case that you ask for amendments before you call for a vote on any bill. So I think this may require the wisdom of Solomon, but at the end of the day I think, given that you now do know that there is an interest in introducing amendments to this bill, you have to operate on that assumption.
The Chair: Solomon is not in the chair. Any other comments to this point of order?
Mr Bartolucci: Again, nothing personal, because that's the last thing I'd ever want this to be understood as, but clearly -- I think Lisa is trying to get a legal interpretation here, and so we're just going to fill in time while she gets this legal interpretation -- I believe that once the vote is commenced, regardless of what happens before, the vote has to proceed.
The Chair: Mr Shea, on the same point of order or a new one?
Mr Shea: It may be slightly different. I must confess that my experience in other committees may very well be different from this, where the Chairman normally would canvass the committee: Are they ready to vote, are they ready to take the sections and so forth? Unless I was dozing at the time, and I was not, I didn't hear that. We were suddenly into a final vote, and I was not ready because indeed I wanted to make some amendments as well. I am perplexed by the procedure, and I would think it appropriate -- I do take what the member is saying with great seriousness, because he's quite right: In the usual manner, once you have started into the vote, you stay with the vote. I don't disagree with that. That is the procedure.
I think the issue before us is, did we start into the vote in error? That's the issue before us, and I think some are saying that we were waiting to make amendments, didn't even get into that or the final debate on the substantiveness. We just barely heard what the Monarchist League had to offer us, and then no chance to engage in the committee discussions.
With that in mind, it is my point of order, with all due delicateness, that you may have just been a little precipitous in bringing us to that vote. I applaud your diligence and speed, but I certainly would hope you might reconsider that and that members might allow us a chance to debate this bill with some more detail.
The Chair: Thank you, Mr Shea. I would say again that the Chair was in error in moving to the vote without specifically requesting whether there were amendments. Given the fact that some members of the committee have indicated an interest in moving amendments, I think it's only fair that the Chair admit his error and that we go back to allowing the amendments and the discussion on the amendments to take place. That's my ruling.
Mr Shea: I accept the mea culpa.
Mr Gilchrist: To try and pick up wherever I left off, the point is that in this first section the Constitution Act specifies there will be one oath. It does it by saying, "The oath of allegiance is," and then goes on to specify the text. I believe the bill before us here today is extremely confusing. It makes no reference anywhere, directly or indirectly, to the other oath, namely, the one that everyone has said orally around this table here today we still will continue to take. In fact, the very title of the bill, "An Act to provide for an Oath of Allegiance" etc, does not say "a second oath," it does not say "a supplementary oath," it does not say "an oath to clarify the fact we love Canada."
It is extremely confusing. On reading this the first time -- and I admit, along with my colleague Mr Shea, that I am subbing in the committee here today and just coming up to speed, but I think that in one way has given me an advantage. Having simply read the text and not heard the preambles and the discussions that have gone on before this, there is no doubt that this is a very confusingly worded bill. Accordingly, I think it is critically important that there be reference in this bill to the oath that Mr Agostino and everyone else has said will still be a mandatory course of action for every member who wants to participate in the actions of the Legislative Assembly in Ontario. To do otherwise leaves this bill open to a lot of criticism and looking at it from Mr Agostino's perspective, a degree of confusion and a degree of conflict that would almost guarantee its defeat at third reading, again by people who will only look at the text and will not have had the opportunity to hear the oral debate that has gone on and probably will not have had an opportunity to read Hansard.
I think it is indisputable -- it has been recognized by the Monarchist League -- that every other jurisdiction in Canada, including the province of Quebec, I stress, hardly a bastion of monarchical support, has continued to utilize the oath which was subject to criticism by Mr Agostino at the time of his swearing in and which was the inspiration for the bill before us here today. I think that adds considerable weight to the argument that if every other jurisdiction, federal and provincial, recognizes the import, recognizes the authority, recognizes the pre-eminence of the clause in the Constitution Act, it is arrogant in the extreme to suggest that Ontario is the sole repository of greater constitutional wisdom than all the rest of the provinces and the federal government put together.
I think it is critical and it will have great bearing on the other sections that I bring forward in terms of a new section 2 that I will be proposing as an amendment. I hope to come back to -- I know I really should keep my comments to section 1, but just as a means of explanation, to achieve the same aims and goals that Mr Agostino was outlining in his bill, namely, a very tacit undertaking that the members of this assembly do believe in the laws of the country, do believe in the importance of representing the people of Ontario and of Canada, but having said that, that the authority for the lawmaking we will do is derived from Queen Elizabeth II.
Along the lines of the suggestion made by our colleague Julia Munro, as is repeated in the submission by the Monarchist League, what really needs to occur is that the members being sworn in have a clear understanding of what that oath means, the significance of who the Queen is, what she represents, so that hopefully this debate will never come up again. We will be able to resolve once and for all the authority of the Queen we are referring to in the oath, the fact that she is the embodiment of the laws of this country, the fact that she is standing in the name of all the legislation we will pass, and obviously, therefore, it is appropriate that our allegiance be to her.
It is also important to note, as was also mentioned by the Monarchist League, that we can't serve two masters. We clearly, if we have sworn allegiance to Queen Elizabeth II, cannot then turn around and swear allegiance to someone or something else. Even if you were to argue that the jurisdictions which that second person or second group represents are somehow distinct from those represented by Queen Elizabeth, it really does not follow in the context of what this oath is all about.
I may be wrong in my interpretation, but the inspiration for the amendment I am proposing is very much the fact that I take this as my promise that while wearing the hat of lawmaker in the province of Ontario, I recognize the authority and the legitimacy of Queen Elizabeth II as the ultimate arbiter, the ultimate decision-maker for any of the actions that are taken in this House.
It is important to remember that at no time does the Premier of this province sign off on a bill. Our authority is merely to make recommendations to the Lieutenant Governor, who is sitting in this building as a representative of Her Majesty, and it is he who then signs off and gives royal assent to the bill. The legislation has no meaning, it has no import, it has no force of law until the Queen or her representative has signed off on that bill. I think it is, as I mentioned earlier, arrogant in the extreme to suggest that it is appropriate or legitimate for us to be either proposing a second oath of allegiance or in any way bringing confusion or conflict to the existing oath that is already required of every member.
Seeing that it is 6 o'clock, Mr Chair, I move adjournment.
The Chair: It being 6 of the clock, this committee stands adjourned until next Wednesday, April 17.
Mr Agostino: On a point of order, Mr Chairman: Can you adjourn in the middle of an amendment before a vote has taken place?
The Chair: It being 6 of the clock, the committee stands adjourned until April 17 at 3:30.
The committee adjourned at 1758.