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Decentralized Democracy

House Hansard - 272

44th Parl. 1st Sess.
January 31, 2024 02:00PM
moved that Bill C-347, An Act to amend the Constitution Act, 1867 (oath of office), be now read a second time and referred to a committee. He said: Madam Speaker, I am pleased to rise in the House today to introduce my bill, Bill C-347. This bill proposes to amend the Constitution Act, 1867 regarding the oath to the monarch. For Canadians who are listening, this bill is simply and more specifically intended to add an option for members elected to the House of Commons and all senators appointed to the Senate when they take their oath. Let me reassure my colleagues here that Bill C-347 is not about whether or not someone is a monarchist or a republican; it is not about eliminating the monarchy in Canada. Even before I introduced this bill at first reading this past June, I made sure that we did not have to create a constitutional storm in this country in order to make this small but meaningful change. It is simply about adding a second option to the oath of office that parliamentarians and senators are obliged to take before they take their seat and exercise their functions. That is all. To those who think this is too complicated, I intend to demonstrate that the oath has never been static in Canada and has evolved over time. Allow me to delve into the origins of the oath, which comes to us directly from the English Parliament. For transparency's sake, the historical overview I am about to share comes straight out of our very own manual, our bible, as it were, the House of Commons Procedure and Practice, third edition, 2017, by Bosc and Gagnon. For starters, such an oath did not exist in England until the 16th century. The oath arose as a result of the political and religious conflicts in England, in particular the separation of the Church of England and the struggle between Protestants and Catholics for power. That is the actual origin of the oath to the monarch. In response to these religious conflicts, England adopted the Act of Supremacy in 1563. That was during the reign of Queen Elizabeth I. Her Act of Supremacy required elected members to swear an oath to the sovereign attesting that she held supreme power in the realm in both ecclesiastical and temporal matters. The oath was primarily directed at preventing Roman Catholics from holding public office. In 1678, England added to this oath a declaration against transubstantiation to prevent Roman Catholics from sitting in Parliament. In 1701, the Jacobites tried to restore Catholicism in England. By all accounts, this did not please the Protestants at the time since they immediately brought in three oaths. I am talking about the Jacobites here because I am referring to James II, who I will talk about later. I was saying that following this religious war, three new oaths were devised. There was the oath of allegiance to the monarch of England; the oath of supremacy, denouncing Catholicism and papal authority; and the oath of abjuration, which repudiated all rights of James II, a Catholic, and his descendants to the English throne. Without going too deeply into historical weeds, Catholics were basically required to swear an oath to the monarch and denounce their own religion and papal authority. Since the oath of abjuration also had to be taken in the name of the Christian faith, it also prevented Jews from taking the oath. I will spare members the genesis of what would eventually become the Canada of today. Suffice it to say that Nova Scotia was the province that had its first popular assembly elected in 1758. It agreed to adopt the same oath as that of England, thus preventing Catholics and Jews from voting or running for office. Incidentally, it is through the oath of allegiance to the sovereign that England still bears, and always will bear, the shame of the heinous deportation of the Acadians, ancestors of mine and of many colleagues who sit here in this Parliament. It was a sad chapter in our history. England tried to deport an entire people and exterminate those who wanted to stay in Acadia. Over the course of our pre-Confederation history, the oath of allegiance to the sovereign evolved in much the same way in each province. The objective was always to prevent Catholics and Jews from voting or entering prestigious occupations as lawyers, judges, mayors, government officials and so on. However, the way that the oath was administered in each province before Confederation varied. One by one, between 1820 and 1850, the provinces relaxed the terms of the oath to finally allow Catholics to vote and run for election. These changes came later for Jews, between 1832 and 1846. Then came the Canadian Confederation, on July 1, 1867, the same day that our Constitution Act took effect. Section 128 of the Constitution Act, 1867 reads as follows: Every Member of the Senate or House of Commons of Canada shall before taking his Seat therein take and subscribe before the Governor General...the Oath of Allegiance contained in the Fifth Schedule to this Act; Section 128 refers us to the fifth schedule, which reads as follows: I A.B. do swear, That I will be faithful and bear true Allegiance to Her Majesty Queen Victoria. Obviously, there is a note that tells us that the name of the monarch can change over time. That is where the requirement for members of Parliament and senators to take the oath originates. I will not get into talking about the legislative amendments that were made to ensure that the name of the monarch changes to reflect the events of the time, but in this year of Canadian Confederation, members and senators still have to swear allegiance to the head of the Protestant Church, which still continues to offend the conscience of Canadians of other faiths, including French-speaking Catholics and Irish Catholics, among others. If I am telling members about this history of the oath over time, it is to show it has never been static and that, on the contrary, it has adapted to the realities of the time and to the sensitivity of our society to make our country a place where everyone feels at home, notwithstanding his allegiances or profession of faith. Following the Constitution Act, 1867, Canadian society continued to evolve, and the oath that members of Parliament and senators have been required to take since 1905 is no longer exactly mandatory as set out in our Constitution. I am sure most members are unaware of the fact that we can now make a solemn affirmation instead, without any constitutional amendment required. Instead of taking an oath to the Queen, we can make a solemn affirmation, which is what I did each of the three times I was elected. However, the 1867 Constitution has not yet been amended. How did that happen? It is thanks to a 1905 law, which did not amend the Constitution and seems to have been unanimously approved, without any objections. It occurred by royal instruction in the form provided by An Act to amend the law in relation to Promissory Notes, which was passed in England in the 31st and 32nd years of the reign of Queen Victoria. The takeaway here is that, since 1905, our Parliament has never questioned the fact that, without a constitutional amendment, MPs and senators had the option to take an oath of allegiance to the monarch, as set out in the Constitution, or to make a solemn affirmation. This is the case even though section 128 of the Constitution Act, 1867, and its fifth schedule have never changed and still refer to an oath of allegiance to the monarch. More recently, in 2022, members of the 43rd legislature of the National Assembly of Quebec unilaterally amended section 128 of the Constitution Act, 1867, to exempt Quebec MNAs from the requirement to swear an oath of allegiance to the monarch once elected. This is another sign that our society continues to evolve and become more inclusive for elected members in this country. It is in this spirit of continuum, inclusiveness and, above all, as a proud Canadian that I propose to officially modify, with the flavour of the 21st century, section 128 of the Constitution Acts, 1867 and its fifth schedule. My Bill C‑347 would, for the first time in our history, allow MPs and senators to swear an oath of office that would be added to the fifth schedule. The oath would be as follows: “I, A.B., do swear that I will carry out my duties in the best interest of Canada while upholding its Constitution.” I will repeat it in English. This addition to the fifth schedule of the Constitution Act would read as follows: “I, A.B., do swear that I will carry out my duties in the best interest of Canada while upholding its Constitution.” Section 128 as we know it would remain unchanged but would become subsection 128(1), and subsection 128(2) would be added. It seems like section 128 has been lonely since 1867, so we are giving it a brother or sister that would say, “Notwithstanding subsection (1), every Member of the Senate or House of Commons of Canada may take and subscribe the Oath of Office contained in the Fifth Schedule to this Act instead of the Oath of Allegiance or may take and subscribe both.” What could be more inclusive for our future MPs or senators than to let them decide, before they fulfill their noble duty, whether or not to swear an oath of allegiance to the monarch, based on their choice, their conscience, their religion or their ethnic origin? At the same time, they could subscribe to an oath of office. For the first time in our history, when members arrive here, they would be able to take an oath of office, committing to work in the best interest of our country and in accordance with the Constitution. As I said at the beginning of my speech, before introducing this bill at first reading, I made sure that we would not cause a constitutional storm in this country or have to seek the approval of every legislature in Canada, of Parliament and the Senate to make this change. We are able to do this through section 44 of our Constitution Act, 1982. Section 44 states: Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons. On that note, I will end my speech and answer any questions.
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  • Jan/31/24 7:15:50 p.m.
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Madam Speaker, I must admit that I really enjoyed my colleague's speech. I liked the fact that he drew from history to support his argument. It will come as no surprise to anyone that the Bloc Québécois is by no means opposed to eliminating the obligation to swear an oath to the British monarch. I have immense respect for my colleague's reasons for introducing this bill. Given his Acadian ancestry, it is entirely understandable that he is no less averse to swearing an oath to the monarch than we Quebec separatists are. I was not entirely comfortable, however, with his proposed amendment concerning the best interest of Canada. I think it could be open to different interpretations. As far as the Bloc Québécois is concerned, for example, the best interest of Canada would be to become an excellent neighbour of Quebec, as two separate countries. I wonder if my colleague would agree that, instead of swearing an oath in the best interest of Canada, we should be swearing an oath to the people in our ridings.
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  • Jan/31/24 7:17:11 p.m.
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Madam Speaker, I thank my colleague for his excellent question. The purpose of the oath is to give any future newly elected members of the House of Commons and newly appointed senators an option that respects all faiths, all historical baggage and all origins. I also think that there is something very true and unequivocal about saying “in the best interest of Canada while upholding its Constitution” when people come to serve here in Parliament, our country's centre of democracy. I understand where the Bloc Québécois member is coming from and why he has reservations, but the fact that the Bloc Québécois is able to serve in this Parliament today is because of our Constitution, and that is why he should be happy to support this bill.
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  • Jan/31/24 7:18:10 p.m.
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Madam Speaker, I would like to thank the member for the very detailed history lesson that he gave about the oath of allegiance. I would have liked to hear even more about that. I would say that section 128 of our Constitution needs a twin, rather than a son, a godfather or a sister. It needs a twin section. I like the way he approached this subject. Could my colleague give us some examples of what is being done in other provinces in terms of oaths? Has he looked carefully at what the other provinces and territories are doing with regard to oaths or solemn affirmations?
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Madam Speaker, I rise today to address Bill C-347, an act to amend the Constitution Act, 1867 regarding the oath of office. The bill would, as its proposer said a moment ago, if enacted, amend section 128 of the Constitution Act, 1867 to allow individuals who have been elected to the House of Commons or appointed to the Senate to select between three different oaths of office. The first option would be, “I ... do swear that I will carry out my duties in the best interest of Canada while upholding its Constitution”; the second option would be the oath of office that has been required since Confederation, which is, as the member noted, “I ... do swear, That I will be faithful and bear true Allegiance to [His Majesty King Charles III]”; and the third option would be to take both oaths. I have personal views on this subject, but I am going to put them on hold, because I think it is important to address the constitutional technicality of how the bill is being proposed. Let me start by observing that a version of the current oath is contained in the fifth schedule to the Constitution Act, 1867, where it is written as follows: “I A.B. do swear, That I will be faithful and bear true Allegiance to Her Majesty Queen Victoria.” The following wording is also contained in the fifth schedule: “The Name of the King or Queen of the United Kingdom of Great Britain and Ireland for the Time being is to be substituted from Time to Time, with proper Terms of Reference thereto.” The fifth schedule is referenced in section 128 of the Constitution Act, 1867, which declares, “Every Member of the Senate or House of Commons of Canada shall before taking his Seat therein take and subscribe before the Governor General or some Person authorized by him ... the Oath of Allegiance contained in the Fifth Schedule to this Act”. The next legal technicality to remember is that the Constitution Act, 1867 is a part of the Constitution of Canada, and therefore any change to the act, including a change to section 128, to the fifth schedule or to both can only be made if it conforms to the amending formulae that govern how such constitutional amendments can be made. These amending formulae are contained in sections 38 to 49 of the Constitution Act, 1982. There are five different amending formulae. The most restrictive amending formula applies to a narrow list of subjects that can be amended only by means of identical resolutions adopted in Parliament and in the legislatures of all the provinces. A second formula provides that in other cases the Constitution can be amended by means of identical resolutions adopted in Parliament and in the legislatures of at least seven provinces with at least, together, half the population of the country. A third formula provides that in the case of amendments that affect some provinces but not others, the Constitution may be amended by means of identical resolutions in Parliament and in the legislatures of the affected provinces, but not in the rest of the provinces. A fourth formula is of particular interest. Section 44 of the Constitution Act, 1982 states, “Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.” Finally, section 45 provides for the legislatures of each province to have the ability to “exclusively make laws amending the constitution of the province.” Although the assertion is nowhere made in Bill C-347, it is clear that a claim is implicitly being made that this amendment to the Constitution would be made under the authority of the section 44 amending formula, as the oath of office is, in essence, asserted to be an aspect of the Constitution in relation to the House of Commons and Senate of Canada, which, as we will recall, was specifically referenced in section 44. Thus, the claim is being made that the oath can be altered by means of a simple act of Parliament. I can certainly understand why this is being asserted, but I am not certain that this assertion is accurate. I note that a similar claim was made only a little over a year ago, when on December 9, 2022, the National Assembly of Quebec enacted a bill that abolished the traditional oath of allegiance to the monarch, the wording of which was identical to the oath for MPs and senators. As with the federal oath, the oath for provincial legislatures is mandated in section 128 of the Constitution Act, 1867 and is spelled out in the fifth schedule to the act. The Quebec law replaced this with something very similar to the federal oath proposed in Bill C-347: “I, (name of the Member), declare under oath that I will be loyal to the people of Québec and that I will perform the duties of Member honestly and justly in conformity with the constitution of Québec.” This was not an uncontroversial bill. Constitutional experts lined up on either side of a dispute as to whether or not the Quebec legislature could, under authority of section 45 of the Constitution Act, 1982, unilaterally amend the oath of office. Some experts said yes, some said “no, you cannot actually do that without resorting to one of the other amending formula” that require broader consent. I note that in favour of Quebec having acted constitutionally, we see that, in the literature I was able to consult, Leonid Sirota, Patrick Taillon and Frédéric Bérard all think this was constitutionally warranted. Ian Peach, Emmett Mcfarlane, André Binette, Yan Campagnolo, Errol Mendes, Steve Chaplin and James Bowden feel differently. They think this was not, in fact, constitutionally done. I recognize that the issues in the Quebec bill and Bill C-347 are not identical. They refer to similar but not identical sections of the Constitution Act, 1982. Nonetheless, they are obviously very similar, and it would be reasonable, in advance of approving this bill at third reading, for some of the experts who weighed in on Quebec's legislation, both for and against, to be invited to testify in committee on Bill C-347. In the event that the resulting expert testimony does not produce a consensus that it is permissible to make such a change under authority of the unilateral section 44 amending formula, it might make sense to take the additional precaution of submitting a reference question to the Supreme Court of Canada. A reference question is a seeking out of an advisory opinion from the court as to whether a proposed law is in fact constitutionally permissible. This would not be the first time that a government of the day has sought an advisory opinion from the court as to which amending formula is appropriate to use in this or that circumstance. For example, in 2014, when the government of the day was considering changing the Constitution with regard to how senators are selected, the Supreme Court ruled that in respect of some of the changes that were being proposed, the unilateral section 44 formula would work and in other cases, the formula that requires the consent of seven provinces would be required. At that time, to be honest, I did not agree with all of the opinions offered by the court in its ruling, but that is not the point. The value of having a Supreme Court is not that the court is always right, it is that the court's opinion is always final. Having rules that are of indisputable authority is the key attribute of the rule of law. To be sure, it may well be the case that all of this is only of technical importance. One could point out, quite accurately, the fact that some members of Quebec's National Assembly, right now, have been sworn in on the basis of an oath that may have been unconstitutionally adopted but that this does not keep them from carrying out their duties as MNAs and that nobody doubts they are legitimate officeholders. This would, presumably, also be true of MPs swearing the oath that is described in Bill C-347. That these MPs would be legitimate officeholders would remain true even if, at some future date after they are sworn in, the Supreme Court were to rule that Bill C-347 had been enacted by means of the wrong amending formula and therefore their oaths of office had been invalid all along. How do I know this? Well, I know it because a version of this exact problem actually arose, once upon a time. In 1875, an embarrassed House of Commons discovered that George Turner Orton had been sitting for some time as the member for Wellington Centre, despite having never sworn the oath of office. According to the relevant footnote in the House of Commons Procedure and Practice manual, Mr. Orton explained “that, because he had already sworn the oath, he did not realize that he had to be sworn in again upon his re-election.” The matter was submitted to a committee, and on March 8, 1875, the committee noted: that, since neither the Constitution Act, 1867,...nor any other statute provided a penalty in the event a Member omitted to take and subscribe the oath, the Member’s seat was not affected by the oversight. However, the Committee recommended that the votes taken by the Member before he took the oath be struck from the records. I think life would probably go on as before, even if Bill C-347 were enacted and subsequently found to be invalid because it had been enacted in the wrong manner, and even if the oaths of some sitting MPs were thereby found be likewise invalid. Canadians are sensible people and we are good at finding ways out of absurd legal conundrums, as we did in 1984 when the Supreme Court found that all laws passed in the Manitoba legislature in English only, for a full century, were invalid and that therefore it was necessary to re-enact them all in a bilingual format. Rather than simply saying there are no laws here, the proposal was made to allow for a staged reformulation of those laws and re-enactment of those laws. There is a way out of this, but it would be best to actually find out what the law requires of us, what the Constitution requires, and for that reason, I will be urging all of us, if this gets through second reading, to make sure we get a clear indication of the legal authorities prior to going to third reading as to whether this is valid.
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Madam Speaker, what is the point of the monarchy? Qu'ossa donne? I want to apologize to the interpreters. I doubt it is easy to translate those words from Yvon Deschamps, but, in all honesty, that pretty much sums up my thoughts. In 2024, Canada's head of state is a king. In 2024, Canada's King is represented by the Governor General. In 2024, Canada has lieutenant governors. In 2024, new Canadian citizens must swear allegiance to His Majesty. In 2024, Canada has colonial institutions. Elected officials must swear allegiance to the King, except in Quebec. Thanks to the stubbornness, determination and insubordination of Parti Québécois MNAs, the members of Quebec's National Assembly, elected by the people, no longer have to swear an oath to the King of England in order to take their seats. It was about time. It has been a year already. The Canadian monarchy has existed since France took possession of the St. Lawrence lowlands in the name of King Francis 1 in 1534. It is now 2024. That was 490 years ago. The only thing that has changed since then is that, instead of swearing allegiance to the King of France, we now have to swear allegiance to the King of England. We are still talking about the same archaic system based on unequal, hereditary privileges. Should we be proud of that? Should we be proud of an aristocratic system based on privilege, a system that classes citizens based on their birth? That does not make me proud. It does not make sense that this is still how the head of state is chosen in 2024. I cannot understand why this country celebrates and wants to continue with a system from the Middle Ages. What we want—what we are fighting for—is greater equality, greater justice and an opportunity for people to rid themselves of the shackles of the past. Meanwhile, we still have a foreign head of state who holds office not because of merit, effort, competence or democratic choice. No, Canada's head of state is a man who was born lucky. That is the only reason we still give him special treatment. He will be on our stamps and our currency. Places and buildings will be named in his honour, even though, at the end of the day, what has he done besides being born? As I said off the top, “qu'ossa donne?” What is the point of the monarchy? There is not much point at all, to be honest. It is fun when they come to Ottawa with the horses, the army, the carriages and all that jazz, but that is really just for show and a total waste of money, as I saw for myself last year. I was part of a Commonwealth Parliamentary Association mission, and His Majesty Charles III received us at Westminster Abbey. What the heck was a Bloc member doing there? It might have been good fodder for online platforms, but that is all. Last year, I surveyed people in my riding about being part of a monarchy. My constituency office was flooded with responses from people in Laurentides—Labelle. It was incredible. People are dead set against it. I was really surprised, not to see that people are against it, but to see that this topic mobilized so many people in my riding. People no longer want it. As I see it, the monarchy serves very little purpose, except to mobilize people against it, as we are seeing tonight. In a democracy, the power of elected representatives comes from the people, the citizens who vote for their representatives. Therefore, as elected officials, it is from these citizens that we derive our legitimacy. In a democracy, elected officials serve the people, not His Majesty and not a colonialist, paternalistic and downright anti-democratic system. In Bill C‑347, the new oath would read as follows: I, A. B., do swear that I will carry out my duties in the best interest of Canada while upholding its Constitution. This makes far more sense than swearing allegiance to a foreign monarch. Members of Parliament and senators could swear an oath to Canada and its Constitution. We also have to keep in mind that Quebec has still not signed the Constitution. A change like this would be a significant democratic improvement. We in the Bloc Québécois oppose all expressions of such an archaic system of government as monarchism and its underlying philosophy. I mentioned earlier that I belong to the Commonwealth Parliamentary Association, which is a genuine forum for nation-to-nation dialogue. Do my colleagues know how many Commonwealth countries are now republics that left the archaic monarchy behind? That would be 37 countries that are now republics and members of the Commonwealth. In other words, 66% of member states deliberately and democratically decided to sever ties with the British monarchy. Madam Speaker, there is a loud noise, but I will try to focus and continue with my speech.
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Madam Speaker, first of all, I also want to thank my colleague from Madawaska—Restigouche for this very simple, well designed and precise bill, which addresses a rather important concern. It is important because symbols are important, even though I agree with my colleague from Rosemont—La Petite‑Patrie that there are likely other issues that are of greater concern. There is the monetary system that puts wealth into the hands of a few, for instance, or inflation, which is affecting our constituents across the country. We know, perhaps better than anyone, that here in politics symbols are very important. I think that oaths are important, that they should not be taken lightly and should not be taken grudgingly. I truly believe that no person duly elected by their constituents to represent them in the House should be reluctant to swear an oath to take their seat, reluctant to do it for various reasons. There may be various reasons to be reluctant to swear an oath to a foreign monarch, as one of my Bloc Québécois colleagues said. For various reasons, namely historic ones, there are some people here who will have a hard time swearing an oath to an institution that may leave a bad taste in their mouth. There are many different identities represented here in the House of Commons, much like the people we represent. I think that if we can find a way to take our seat by swearing an oath that respects the sensibilities of every individual while honouring the historic reality that my colleague from Madawaska—Restigouche described so well by giving the option, that would be a good thing. That is exactly the purpose of Bill C‑347. As I said, it offers a very elegant solution, the option to swear an oath of office that I will read as written in my colleague's bill, an oath that would be added to the one we swear now. It says that we will carry out our duties “in the best interest of Canada while upholding its Constitution”. That, to me, is a much more inclusive oath. There have been several attempts to change the oath of allegiance that members of Parliament must swear. As I was reading in Marc Bosc's green book, such attempts occurred in 1990, 1991, 1993, 1994, 1996, 1997, 2002 and 2003. I think that my colleague from Madawaska—Restigouche's Bill C‑347 offers a very simple and effective way to do this. That is what I want to focus on in my speech. If we were to look into the origins of this obligation to take an oath to assume office and take our seat in Parliament, we would see that it dates to the 16th century. This oath was originally intended to exclude Roman Catholics, among others. Initially, the aim was to bar them from Parliament. It evolved over time to include more people or exclude others, but it is clear that, today, section 128 of the Constitution sets out the obligation for members and senators to take an oath. That oath can be found in the fifth schedule and reads as follows: “I, A.B., do swear, That I will be faithful and bear true Allegiance to [His Majesty King Charles III].” Bill C-347 simply adds to section 128 another section that would allow elected members to take another oath, a solemn declaration. This other section states, “Notwithstanding subsection (1), every Member of the Senate or House of Commons of Canada may take and subscribe the Oath of Office contained in the Fifth Schedule to this Act instead of the Oath of Allegiance or may take and subscribe both.” That oath I just read would be added to the fifth schedule. I was listening to my Conservative Party colleague talk about constitutionality, and I think that is the crux of the problem for those who may oppose this bill. We are not preventing anyone from swearing an oath to the monarchy. We are just offering another option for those who, like me, as a member from Quebec, are uncomfortable or have reservations about swearing allegiance to a foreign monarch. However, when it comes to amending the Constitution, we must refer to section 44, among others, which states, “Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.” That is exactly what this is about. Now we have to check sections 41 and 42 to see if there is something there that could prevent this. I will spare my colleagues a reading of that long list. Bill C‑347 has no impact on section 42. There may be something in section 41. According to section 41 of the Constitution, anything affecting “the office of the Queen, the Governor General and the Lieutenant Governor of a province” would require the unanimous consent of the legislative assemblies of each province, the House of Commons and the Senate. Is the office of the Queen or the Governor General affected by Bill C‑347? In my opinion, no. Nothing about the office of the Governor General will change. She must listen to an oath, and it is up to parliamentarians to decide which oath to swear. Oaths have certainly evolved over time to reflect society's values; that is key to our democracy. I think that Bill C‑347 adapts the oath to reflect Canada's values.
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