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Speech in Senate Chamber: Senator Cools moves an amendment to Bill S-7, An Act respecting the declaration of royal assent by the Governor General in the Queen's name to bills passed by the Houses of Parliament, and also the need for the Royal Consent before it proceeds in the Senate.

On the Order:

 

Resuming debate on the motion of the Honourable Senator Lynch-Staunton, seconded by the Honourable Senator Kinsella, for the second reading of Bill S-7, respecting the declaration of royal assent by the Governor General in the Queen's name to bills passed by the Houses of Parliament.—(Honourable Senator Cools).

 

Hon. Anne C. Cools: Honourable senators, I rise to speak to Bill S-7. I had spoken to this bill's identical predecessor, Bill S-15, on June 9, 1998.

Honourable senators, I believe in Canada's Constitution, constitutional monarchy, its institutions and Her Majesty, Queen Elizabeth II. In this Senate, I took the Oath of Allegiance to Her Majesty. It is my sworn duty to uphold Her Majesty's rights and interests as the third constituent element of the Parliament of Canada. The Constitution Act, 1867, section 17, states:

  

There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.

 

Honourable senators, I thank the Honourable Senator Lynch-Staunton for this timely debate, more so with the outcome of the Australian referendum on the monarchy. On November 6, 1999, Australians voted 55 per cent to 45 per cent to maintain Queen Elizabeth II as their monarch. Bill S-7 is about Her Majesty's Royal Prerogative in respect to her Royal Assent to bills that have been passed by the Senate and the House of Commons. Its subject is this Royal Assent, which gives passed bills the force of law. Bill S-7 poses an important and pressing constitutional question. How can Royal Assent, the very action which gives a bill the force of law, itself become the subject of a bill which must then obtain that same Royal Assent to receive the force of law?

 

Honourable senators, the Royal Prerogative is the foundation of ministerial cabinet government and makes responsible government possible. The Royal Prerogative is so pivotal that the 1931 Statute of Westminster declared that any United Kingdom's alterations to the royal succession, style and titles must be agreed to by the Parliaments of the Dominions, of which Canada was one. The Statute of Westminster stated in part:

  

And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom:

 

Honourable senators, in September there were media reports about the outgoing Governor General Roméo LeBlanc's actions on the viceregal crest, its lion and the lion's tongue. The President of the Heraldry Society of Canada, B.C., Yukon Branch, Rean Meyer, wrote to the National Post on September 8, 1999. In this letter headlined "Ill-advised", he wrote:

  

Readers of the National Post should be aware of a few facts about the so-called viceregal crest. The crest in question is not Roméo LeBlanc's "official crest" as stated, but that of the Royal coat of arms used in Canada, commonly and erroneously referred to as the Canadian coat of arms. Similarly, this same crest cannot be correctly called a viceregal one because it is part of Her Majesty's arms in right of Canada, as borne out in the 1921 proclamation.

 

Continuing in his next line about another former Governor General's action in removing royal insignia at Government House, Mr. Meyer wrote:

  

The late Jeanne Sauvé, during her tenure as governor-general, rid Rideau Hall writing paper, flatware and Government House sentry boxes of the crown that had been used since Confederation. In its place she substituted what her minions described as the "viceregal lion", i.e. the crest that is the subject of Mr. LeBlanc's dissatisfaction. After adopting and discarding two personal coats of arms for her own use, Mme. Sauvé eventually settled on a version that included on her shield the same creature that has now lost both its tongue and its claws thanks to this governor-general's capriciousness.

 

Honourable senators, too often some ministers advocate ending the monarchy in Canada whilst they eagerly exercise their full ministerial powers of the Crown under the Royal Prerogative powers that are not reviewed by Parliament. Others assert that the monarchy is undesirable in Quebec. Still others claim that the Royal Assent ceremony for bills is purely perfunctory, a mere formality, an ornament, saying that since Royal Assent is only a formality and an ornament, it is entirely unnecessary and wholly disposable. Some say that it is a total inconvenience and a nuisance to the House of Commons. It is simply too inconvenient for ministers to attend. It became too inconvenient for the Prime Minister to attend, then so for the ministers, then for the members, then, too, for the Supreme Court of Canada Justices. Humbug! Yet honourable senators attend Royal Assent faithfully in this, our own Senate, the House of the Royal Assent.

 

Honourable senators, I challenge those who assert that Royal Assent is a mere formality. They are wrong. I say that their false or wrong assertion cannot, by repetition, become true or right. Benjamin Disraeli, United Kingdom Prime Minister in the late 1800's, in his 1852 book Lord George Bentinck: A Political Biography described the true force and meaning of Royal Assent by the Queen. He wrote:

  

As a branch of the legislature whose decision is final, and therefore last solicited, the opinion of the sovereign remains unshackled and uncompromised until the assent of both houses has been received. Nor is this veto of the English monarch an empty form. It is not difficult to conceive the occasion when, supported by the sympathies of a loyal people, its exercise might defeat an unconstitutional ministry and a corrupt parliament.

 

Honourable senators, that is the true position, the true constitutional position, of Royal Assent in our constitutional monarchy of ministerial responsibility. Royal Assent is that parliamentary stage, and the only stage in our parliamentary legislative process, where Parliament as a whole, in its three constituent parts, comes together as the one Parliament of Canada in the enacting process of law-making, transforming measures into statute law. The Royal Assent is that quintessential act in our responsible ministerial government system known as the Queen in Parliament — that defining moment in the parliamentary law-making process. Royal Assent is no mere formality. It is a vital procedure. It is final and unshackled. It is the most visible act of the Queen in Canada, which since Confederation has been given in this Senate for sound constitutional reasons. Senators must protect the visibility of the Queen's actual role in Canada's Parliament and Constitution.

 

Honourable senators, this Senate is the House of Parliament. The Senate Clerk is the Clerk of the Parliaments. The Clerk of the House of Commons is the Under-Clerk of the Parliaments. Our lady Usher of the Black Rod is the Queen's personal messenger, who acts in that relationship between the Queen and the two Houses in the Queen's performance of her parliamentary functions. The constitutional functions of the whole Parliament of Canada can only be performed in this Senate House. The whole Parliament assembles here for the Throne Speech, previously the Royal Speech. Until about 1947, Canada's Governor General held office in the East Block of these buildings. Until quite recently, the Governor General attended here in this Senate to prorogue and to dissolve Parliament — important parliamentary functions which were exercised visibly until administrative convenience drove prorogation and dissolution to the privacy and invisibility of Government House at Rideau Hall, concealed from public view, knowledge and understanding. Our country has been systematically deprived — robbed — of the knowledge and view of its own political language, culture and customs as the position of the monarch as the lynchpin has been diminished. Administrative convenience is no fit ground on which to found the dismantling of vital constitutional practices. Former prime minister Pierre Elliott Trudeau described the current Quebec nationalist strategy of "creeping independence," of "étapisme", the concept coined by the late Quebec Separatist Premier René Lévesque. In an October 8, 1998, Ottawa Citizen article "Shades of Duplessis," he described "étapisme" thus:

  

They want to take this power now, then that power, and eventually Quebecers will feel that they govern more from Quebec than from Ottawa and then they take the last step and do it all.

 

This same "étapisme", or gradualism, is working on Canada's monarchy: the certain removal of a departmental name here, an insignia there, a custom here and there.

 

Honourable senators, Senator Lynch-Staunton believes that his proposed alteration to Royal Assent requires a bill. He is correct. A bill is required for such a fundamental change to Her Majesty's and the Senate's constitutional order in Canada. He proposes a profound and fundamental change to the Senate constitution and to the longstanding constitutional role and practices of this Upper House as the House of Royal Assent and the House of Parliament. He would also alter the manner, form and style of Royal Assent itself, by which Her Majesty, the final and high constituent element of Parliament, gives agreement to bills passed by the other two constituent elements. The good senator proposes to alter Her Majesty's Royal Prerogative in respect of her Royal Assent to bills. This alteration is a limitation. Bill S-7 is a limitation on the exercise of the Royal Prerogative in Royal Assent and, simultaneously, is a limitation on the constitution of the Senate. An alteration to the Royal Prerogative of this magnitude can only be undertaken by bill with due regard to constitutional practice, parliamentary law and usage.

  

Honourable senators, the law of Parliament is well established that any change to the Royal Prerogative by Parliament, any bill affecting Royal Prerogative, requires the Royal Consent prior to passage in Parliament. All the parliamentary authorities agree on this. About the Royal Consent, Alpheus Todd, in the 1892 edition of Parliamentary Government in England, Volume II, wrote:

  

Where the rights of the crown, its patronage or prerogative, are specially concerned...a special royal message...is necessary to signify that her Majesty is pleased to place at the disposal of parliament her interests, etc., in the particular matter.

 

About the Royal Consent, Beauchesne states at paragraph 726(1), 6th edition, that:

  

The consent of the Sovereign (to be distinguished from the Royal Assent to Bills) is given by a Minister to bills (and occasionally amendments) affecting the prerogative, hereditary revenues, personal property or interest of the Crown.

 

Honourable senators, there is an example of étapisme of our monarchy. That very paragraph has been altered over time to delete the words "King", "Queen" and "royal" from a previous Beauchesne paragraph 283(1), 4th edition. Étapisme is the certain, persistent deletion of the language of the constitutional monarchy of Canada.

  

Honourable senators, about the stage of proceedings for Royal Consent, Beauchesne paragraph 726(2), 6th edition, states:

  

The Royal Consent is generally given at the earliest stage of debate. Its omission, when it is required, renders the proceedings on the passage of a bill null and void.

 

About Royal Consent and second reading, Beauchesne paragraph 727(1) states, in part:

  

The consent of the Crown is always necessary in matters involving the prerogatives of the Crown. This consent may be given at any stage of a bill before final passage; though in the House it is generally signified on the motion for second reading.

  

Honourable senators, Her Majesty's advisors, government ministers and privy councillors, acting under responsibility, are constitutionally competent to obtain the Royal Consent. Consequently, during consideration of a bill affecting the Royal Prerogative, they can be expected reliably to signify the Royal Consent.

  

However, for a private member the situation is quite different. For a private member on the opposition benches, the situation is also interesting. If that opposition member's bill is supported by the government, then the situation would be constitutionally peculiar, for Her Majesty's ministers, her pre-eminent advisors, by declining legislatively and parliamentarily to uphold and defend Her Majesty's prerogative, would imperil that very prerogative from which they derive their ministerial authority, power and pre-eminence. That could have the makings of a constitutional crisis. My point here, however, is private members, and their position in respect of their bills to alter the Royal Prerogative.

Honourable senators, the necessary communication to obtain Her Majesty's Royal Consent was confirmed by the fourth report of the Standing Committee on Privileges, Standing Rules and Orders, introduced in the Senate on November 6, 1985. I believe that committee was chaired by Senator Gildas Molgat. The report's recommendation No. 3 said, at page 1469:

  

That representatives of the Senate meet with representatives of the House of Commons to draft a resolution for a joint Address of both Houses to be presented to Her Excellency the Governor General, praying that she approve such changes to the Royal Assent ceremony as described in this Report.

  

The operative words are "address" and "praying that she approve."

  

All authorities agree that the House must receive Royal Consent for any bill which alters the Queen's Royal Prerogative before it is passed in that House. The Royal Consent is required by the law of Parliament. Failure to obtain that consent will invoke the law of Parliament to withdraw the bill.

  

Honourable senators, about the position of private members and their obligation to the House on like bills, Alpheus Todd, in the work already cited, wrote that:

  

This intimation should be given before the committal of the Bill. But where a public bill of this description is proposed to be initiated by a private member, and not upon the responsibility of ministers, the House ought to address the crown for leave to proceed thereon, before the introduction of the same...

  

Honourable senators, Senator Lynch-Staunton has placed this bill before us three times in as many years, S-15, S-26 and now S-7. At no time has he indicated how he intends to proceed to seek and obtain Her Majesty's Royal Consent for this house, an absolute prerequisite to Senate consideration and passage of this bill. Senator Lynch-Staunton has a duty to move an address to Her Majesty the Queen asking her agreement to our consideration of this bill. It is on such motion for that address that the public and parliamentary debate will ensue.

 

Motion in Amendment

  

Hon. Anne C. Cools: Having said that, honourable senators, I should like to move an amendment to the motion. I move:

  

That Bill S-7 be not now read a second time, but be read a second time when its sponsor fulfills the condition required by the law of Parliament that is necessary and preliminary to the passage in Parliament of a private member's bill altering the Royal Prerogative, that preliminary condition being the signification of Her Majesty's Royal Consent to Parliament's consideration of Her Majesty's interests in Bill S-7's proposed limitation and alteration to the manner, form, and style of Her Majesty's Royal Assent in Canada, which is simultaneously an alteration to the constitution of the Senate.

  

Hon. Eymard G. Corbin: Honourable senators, I wonder if I may be allowed a question and a comment arising out of the speech made by Senator Cools.

  

She referred at one point in her remarks to the staff of the residence or the office of the Governor General as "minions."

  

Senator Cools: As what? I have never done that.

  

Senator Corbin: You said that.

  

Perhaps I should quote from the Concise Oxford Dictionary, 9th edition, the meaning of the word "minion." It is a noun and it is usually used in a derogatory fashion to mean, first, a servile agent; a slave; second meaning, favourite servant, animal; third meaning, a favourite of a sovereign, in the sense of the French "mignon."

  

Our parliamentary practice always prohibited slanderous remarks on the person of the Queen and the Governor General. Surely, this ought to extend to the house staff of Her Majesty or, indeed, the Governor General. I am sure Senator Cools went beyond her thoughts when she used that word. It is not for me to tell her or to remind her about the propriety of the use of such terms, but the meaning is clear in everyone's mind.

  

I wonder if Senator Cools would not want to withdraw that word. In the same way that we would not wish to use that adjective with respect to our own staff here in the Senate. I do not think we should speak of the staff and servants of the residence of the Governor General with that kind of bias.

  

Senator Cools: Honourable senators, I should like to thank Senator Corbin for his particular question. I should like to point out that his question and his allusion to me is mistaken and very wrong.

  

I should like to say very clearly to all here in this chamber that I am probably the greatest supporter in this chamber that the monarch and the Governor General have. I should like to make it quite clear that those words were not my words.

  

Senator Stratton: Are you demeaning the rest of us?

  

Senator Cools: If you would like to take the floor, you are quite welcome.

  

Those words were not my words. As I said before, they were the words of a Mr. Rean Meyer, President of the Heraldry Society of Canada, British Columbia, Yukon Branch. I was reading to honourable senators from a letter that Mr. Meyer wrote to the National Post on September 8, 1999.

  

Should Senator Corbin like a copy of that newspaper article, I would be happy to provide it to him so that he can examine it and see that those words were the words of the author of the letter and not mine.

  

I would like to make it crystal clear that I am so strongly committed to the office of the Governor General that I would love to have the Governor General come here every time Royal Assent is required. The purpose of my words today are to encourage the Governors General of Canada to exercise their full powers as the personal representative of Her Majesty the Queen.

  

This bill has its supporters, as it certainly has its opponents. I am told that there are some former governors general who are not entirely happy with some of the proposals in this bill.

  

I again thank Senator Lynch-Staunton for bringing forward this debate because Royal Assent is a matter of the constitution of this place. When I came to this place, I took an oath to be loyal to Her Majesty and I swear to God that I intend to be. That is exactly what I am doing at this moment.

  

The remainder of this day's Senate Debates available here.