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House of Commons Procedure and Practice

Second Edition, 2009

 
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4. The House of Commons and Its Members

Photo of high relief entitled “Vote” from the British North America Act series of the Heritage Collection in the Chamber of the House of Commons.

Composition of the House

 

Figure 4.1   Representation Since 1867

*    Representation

Historical Perspective

Current Formula

Figure 4.2   Calculating Representation in the House of Commons

 

Electoral Boundaries

 

*    Historical Perspective

*    Readjustment of Electoral Boundaries

Appointment of Electoral Boundaries Commissions

Drawing of Boundaries

Consideration by the House

Representation Order

*    Naming of Constituencies

*    Suspension of the Readjustment Process

 

Rules of Membership for the House

 

*    Historical Perspective

*    Qualifications for Membership

 

Electoral Process

 

*    Issue of the Writs of Election for a General Election

Figure 4.3   The Writ of General Election

*    Issue of Writ for a By-election

Figure 4.4   Notice of Election

*    Return of the Writ

*    Contested Elections

 

Chief Electoral Officer

 

*    Responsibilities

Responsibilities at Time of a General Election or a By-election

Relationship with Members

 

The Oath or Solemn Affirmation of Allegiance

 

*    Historical Perspective

Great Britain

Canada

*    Swearing-in Process

*    Breach of the Oath of Allegiance

 

Entrance in the House

 

Assignment of Seats in the House

 

*    Crossing the Floor

 

Responsibilities and Conduct of Members

 

*    Attendance

*    Conflict of Interest Code for Members of the House of Commons

Historical Perspective

Rules of Conduct for Members

Inquiries

*      Initiating an Inquiry

*      Conduct of Inquiry

*      Report on Inquiry

*      Statement by Member

*      Consideration of Inquiry Report

*    Conflict of Interest Act and the Code of Conduct for Public Office Holders

*    Parliamentary Committees and Conflict of Interest Matters

 

Conflict of Interest and Ethics Commissioner

 

*    Appointment Process

*    Responsibilities

 

Remuneration, Pensions and Entitlements

 

*    The Sessional Allowance

*    Pension

*    Budgetary Entitlements

 

Vacancies in Representation

 

*    Death of a Member

Death of a Member Following a General Election

*    Resignation of a Member

Acceptance of an Office of Profit or Emolument Under the Crown

Election to a Provincial Legislature or Municipal Council

*    Contested Election Result

*    Expulsion

 

We use the words “House of Commons” very often without pausing to reflect upon what those words mean…. The word “Commons” means the people. This is the house of the people. Sitting on both sides of this house and on both sides of the Speaker are representatives of every constituency of Canada. Collectively, those of us who meet in this chamber represent all Canadians. That is our responsibility; that is our duty.

George Drew, Leader of the Opposition

(Debates, June 4, 1956, p. 4644)

The House of Commons is the elected assembly of the Parliament of Canada. Its 308 Members are elected by popular vote at least once every five years.[1] For this purpose, the country is divided into electoral districts, also known as ridings or constituencies, and each is entitled to one seat in the House of Commons. The composition of the House has grown considerably since 1867 when 181 Members were elected for the first time.

The Canadian electoral system is known as the single-member, simple-plurality voting system, or “first-past-the-post” system.[2] In this system, Canadian citizens 18 years of age or older are eligible to vote.[3] Elections at the federal level are simultaneous and nation-wide. Voting is by secret ballot and an elector may vote only once[4] and for only one person on the ballot. To be elected, the candidate who obtains the most votes wins, even if he or she has received fewer than half of the votes.[5]

The electoral process, rules regarding membership, and the number and distribution of seats are governed by various acts of Parliament. The main body of Canadian election law is found in the Canada Elections Act,[6] which sets down the conditions in which parties and candidates engage in the election process and ensures the free expression of political choice by electors. The Representation Act, 1985[7] and the Electoral Boundaries Readjustment Act[8] establish the processes for determining the number of Members each province is entitled to and the boundaries of each electoral district. The Constitution Act, 1867[9] and the Parliament of Canada Act[10] include provisions governing membership in the House and the various responsibilities and obligations of Members. The Standing Orders of the House of Commons, the Conflict of Interest Code for Members of the House of Commons, and the By‑laws of the Board of Internal Economy also set down rules and regulations affecting the conduct and responsibilities of Members. These matters are discussed in detail in this chapter.



[1] Although the Constitution Act, 1867 (R.S. 1985, Appendix II, No. 5, s. 50) states that the maximum duration of the House of Commons is five years, the Canada Elections Act (S.C. 2000, c. 9, s. 56.1) provides for a general election on the third Monday in October in the fourth calendar year following a previous election, subject to an earlier dissolution of Parliament. See also S.C. 2007, c. 10. The first general election to be held pursuant to this provision in the Canada Elections Act was scheduled for Monday, October 19, 2009 (s. 56.1(2)). However, the Thirty‑Ninth Parliament was dissolved on September 7, 2008 (Canada Gazette, Part II, Vol. 142, Extra, September 8, 2008). The 40th general election took place on October 14, 2008. For further information, see Chapter 8, “The Parliamentary Cycle”.

[2] For a description of various electoral systems, see Jackson, R.J. and Jackson, D., Politics in Canada: Culture, Institutions, Behaviour and Public Policy, 6th ed., Toronto: Pearson Prentice Hall, 2006, pp. 427-35. In 2005, further to an order of reference of the House, the Standing Committee on Procedure and House Affairs recommended a process to engage citizens and parliamentarians in an examination of the current electoral system. See the Committee’s Forty-Third Report, presented to the House on June 22, 2005 (Journals, p. 958). The government endorsed the Committee’s recommendations, although not the proposed timelines for the study (Government Response to the Forty-Third Report, tabled on October 7, 2005 (Journals, p. 1154)). The Thirty-Eighth Parliament was dissolved before the recommendations could be implemented.

[3] Canada Elections Act, S.C. 2000, c. 9, s. 3.

[4] Canada Elections Act, S.C. 2000, c. 9, ss. 7 and 163.

[5] The number of Members a party elects to sit in the Commons does not necessarily reflect the proportion of votes it received, as has been clearly demonstrated in numerous general elections. For example, in 1984, the Progressive Conservative Party polled 50 percent of the votes cast and won 75 percent of the seats in House (Dawson, R.M., Dawson’s The Government of Canada, 6th ed., edited by N. Ward, Toronto: University of Toronto Press, 1987, p. 85). In 1997, the Liberal Party received 38 percent of the votes, but won 51 percent of the seats in the Commons (Jackson and Jackson, 6th ed., p. 432).

[6] S.C. 2000, c. 9.

[7] S.C. 1986, c. 8.

[8] R.S. 1985, c. E-3.

[9] R.S. 1985, Appendix II, No. 5.

[10] R.S. 1985, c. P-1.

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Canada is divided into 308 electoral districts, each of which sends one Member to the House of Commons.[11] An electoral district can be defined as any place or territorial area in Canada entitled to return a person to serve in the House of Commons. Following each decennial census, the number of seats to be apportioned among the provinces is decided on the basis of population figures. The boundaries of each electoral district are then determined by provincial electoral boundaries commissions.

The composition of the House has expanded greatly since 1867. At the time of Confederation, representation was based on Quebec having the same number of seats that it had in the Legislature of the Province of Canada with the other provinces being granted representation in proportion to that number. At the opening of the First Parliament, 181 Members sat in the House of Commons, representing the following provinces: 82 for Ontario, 65 for Quebec, 19 for Nova Scotia and 15 for New Brunswick.[12]

Soon after, new provinces began to seek admittance to Confederation. Representation in Parliament was considered negotiable and often did not reflect representation by population.[13] When Manitoba joined Canada in 1870, four seats were added to the membership of the House.[14] British Columbia and Prince Edward Island each got six seats upon joining Confederation in 1871 and in 1873 respectively.[15] In 1886, the Northwest Territories received four seats and in 1902, the Yukon Territory was granted one seat.[16] When Saskatchewan and Alberta were established out of the Northwest Territories in 1905, they were allotted 10 and seven seats respectively; the Northwest Territories no longer had a seat in the House.[17] In 1947, the electoral district of Yukon–Mackenzie River, comprising all of the Yukon Territory plus the western portion of the Northwest Territories, known as the Mackenzie District, was created and allotted one seat.[18] Newfoundland joined Confederation in 1949 and was granted seven seats.[19] In 1952, the electoral district of Yukon–Mackenzie River was revoked; the Mackenzie District of the Northwest Territories was granted one seat and the original Yukon electoral district was restored.[20] In 1962, the Representation Act was amended to give the entire Northwest Territories one seat.[21] In 1975, the number of seats in the Northwest Territories grew to two.[22] On April 1, 1999, the Nunavut Territory was established out of the eastern portion of the Northwest Territories and was given one of its two seats.[23]

Today, there are 308 Members from 10 provinces and three territories: 36 for British Columbia, 28 for Alberta, 14 for Saskatchewan, 14 for Manitoba, 106 for Ontario, 75 for Quebec, 10 for New Brunswick, 11 for Nova Scotia, four for Prince Edward Island, seven for Newfoundland and Labrador,[24] and one each for the Yukon Territory, the Northwest Territories, and Nunavut (see Figure 4.1 for changes in representation from 1867 to the present).

 

Table image depicting the changes in the number of seats in the House of Commons from 1867 to 2004. Each row corresponds to a different year and follows across the page showing the number of seats in Canada, Ontario, Quebec, Nova Scotia, New Brunswick, Manitoba, British Columbia, Prince Edward Island, Saskatchewan, Alberta, Newfoundland and Labrador, Northwest Territories, the Yukon Territory and Nunavut.

*   Representation

In 1867, the Fathers of Confederation adopted the principle of representation by population. On the basis of this principle, a formula was derived to calculate the number of seats each province would be allocated in the House of Commons. Ontario, New Brunswick and Nova Scotia were each allotted a number of seats on the basis of their share of the total population in relation to that in the province of Quebec, which had been guaranteed 65 seats, the same number it had in the Province of Canada Legislature.[25] As provinces and territories joined Canada and the country’s population distribution evolved, Parliament amended the formula for calculating the number of seats on numerous occasions.

Historical Perspective

At Confederation, the Constitution Act, 1867 stipulated that in order for the population of each province to be accurately represented in the House of Commons, the number of seats for each province was to be recalculated after each decennial census, starting with the census of 1871.[26] The total number of seats was to be calculated by dividing the population of each province by a fixed number referred to as the “electoral quota” or “quotient”. This quotient was determined by dividing the population of the province of Quebec by 65. There was one exception to this formula, known as the one‑twentieth rule: no province could lose seats unless its share of the national population had decreased by at least 5% (one‑twentieth) between the last two censuses.

Because of the growing population of the country, the one‑twentieth clause caused no problems for the first 25 years of Confederation. In 1872, representation in the House increased after the decennial census of 1871: Ontario received six additional seats, Nova Scotia two, and New Brunswick one. Following the 1881 census, Ontario received four extra seats and Manitoba one, bringing the total to 211 Members. However, in 1892, the three Maritime Provinces lost four seats in total, causing some concern, particularly in Prince Edward Island. Although the population was growing in the Maritime Provinces, it was becoming relatively smaller in proportion to the national total. In 1903, the readjustment of representation saw the number of seats for Prince Edward Island further reduced. In arguments before the Supreme Court, Prince Edward Island claimed that it should be entitled to the six seats it was allocated when it joined Confederation. The Supreme Court subsequently upheld that representation must be based on the total population of Canada and that no exception could be made for Prince Edward Island.[27]

Despite the Supreme Court ruling, there was dissension among some of the provinces whose population was declining. A constitutional amendment was proposed in 1914 to protect the smallest provinces from losing additional seats because of a declining population and it was adopted the following year. Still in effect today, the “senatorial clause”, as it is referred to, guarantees that no province can have fewer seats in the House of Commons than it does in the Senate.[28]

Following the census of 1941, a constitutional amendment was adopted to postpone the redistribution process until the first session of Parliament after the end of the war because the Western provinces were concerned that the displacement of population caused by the war would affect their representation.[29] Many of the provinces were also dissatisfied with the redistribution rules, which would have seen four of the nine provinces being allocated representation in accordance with their population while the other five provinces would have been guaranteed extra seats either because of the senatorial clause or the one‑twentieth formula.[30] The demand for representation by population, in particular by Quebec, led to the repeal of the one‑twentieth clause in 1946.[31] The total number of seats was fixed at 255, one for the Yukon and the other 254 divided among the provinces on the basis of their share of the country’s total population, rather than on the average population per electoral district in Quebec.[32]

However, under this new formula, it was soon discovered that with provincial populations not increasing at the same rate, representation would be reduced in Nova Scotia, Manitoba and Saskatchewan. Thus, in 1952, the Constitution Act, 1867 was amended again to prevent a rapid decline in the number of seats of these provinces.[33] In this instance, the amendment stipulated that no province could lose more than 15% of the number of seats it was entitled to under the last readjustment, nor could a province have fewer seats than a province with a smaller population. Nonetheless, after the 1961 census, these same three provinces as well as Quebec lost seats and following the 1971 census, Newfoundland was added to the list of provinces slated to lose seats.

In 1974, the Representation Act, 1974 provided a new formula, known as the amalgam formula, for calculating the number of seats in the House to ensure that no province lost any seats.[34] As in the original representation formula, Quebec was allocated a set number of seats, 75, and its average constituency population was used to calculate the number of seats in the other provinces. In each subsequent readjustment, Quebec would automatically receive four seats to compensate for population growth and to decrease its average constituency population, the basis on which the allocation of seats among the other provinces would be calculated. In addition, three categories of provinces were created: large provinces (population of 2.5 million or more); intermediate provinces (population between 1.5 and 2.5 million); and small provinces (population under 1.5 million). Only the large provinces were allocated seats in strict proportion to Quebec; separate rules for calculating the number of seats were established for the small and intermediate provinces.[35] The amalgam formula was applied only once, in 1976, establishing 282 seats in the House.

Following the 1981 census, calculations revealed that there would be substantial increases in the representation in the House both immediately and after subsequent censuses. Indeed, it was projected that, by the year 2001, there would be 396 Members in the House. The Standing Committee on Privileges and Elections was mandated to study the issue of representation in both the Thirty‑Second (1980‑84) and Thirty‑Third (1984‑88) Parliaments,[36] and new representation legislation was passed in 1986. It is still in force today.

Current Formula

In amending section 51 of the Constitution Act, 1867, the Representation Act, 1985 set down a formula for calculating representation, starting with 282 seats as established by the 1976 amalgam formula (see Figure 4.2):[37]

1.      One seat each is allocated to the Northwest Territories, Nunavut[38] and the Yukon.

2.      The total population of the 10 provinces is divided by 279 to obtain the electoral quotient.

3.      The number of seats to be allocated to each province is calculated by dividing the total population of the province by the electoral quotient. If the result leaves a remainder higher than 0.50, the number of seats is rounded off to the next whole number.

4.      Once the number of seats per province is obtained, adjustments are made by applying the senatorial and grandfather clauses. The senatorial clause guarantees that no province has fewer Members than it has Senators while the grandfather clause ensures that no province has fewer seats than it had in 1986 when the Representation Act, 1985 came into force.[39]

As a result of this formula, the House grew to 295 seats after the 1988 federal election and to 301 seats following the 1997 election. As a result of the 2001 decennial census, the number of seats in the House was readjusted to 308 for the 38th general election held in 2004. The next readjustment is scheduled to occur after the 2011 census.[40]

 

282 Seats


I
Northwest
Territories

I
Nunavut

I
Yukon

=

279

Population of Provinces

÷

279

=

Electoral Quotient

Provincial Population

÷

Electoral Quotient

=

Provincial Seat Allocation

 

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[11] Constitution Act, 1867, R.S. 1985, Appendix II, No. 5, s. 40. Until the 1968 general election, some electoral districts were entitled to return two Members to the House of Commons. In each two‑Member constituency, voters were entitled to cast two votes; the two candidates with the most votes won. For further information, see Ward, N., “Voting in Canadian Two‑Member Constituencies”, Voting in Canada, edited by J.C. Courtney, Scarborough, Ontario: Prentice‑Hall of Canada Ltd., 1967, pp. 125‑9.

[12] Constitution Act, 1867, R.S. 1985, Appendix II, No. 5, s. 37.

[13] Ward, N., “A Century of Constituencies”, Representation and Electoral Systems: Canadian Perspectives, edited by J.P. Johnston and H.E. Pasis, Scarborough, Ontario: Prentice‑Hall Canada Inc., 1990, p. 207.

[14] An Act to amend and continue the Act 32 and 33 Victoria, chapter 3; and to establish and provide for the Government of the Province of Manitoba, S.C. 1870, c. 3.

[15] Journals, March 31, 1871, p. 198; May 20, 1873, p. 402.

[16] North-West Territories Representation Act, 1886, S.C. 1886, c. 24; The Yukon Territory Representation Act, 1902, S.C. 1902, c. 37.

[17] An Act to readjust the Representation of the Provinces of Saskatchewan and Alberta in the House of Commons, and to amend the Representation Act, S.C. 1907, c. 41.

[18] The Representation Act, 1947, S.C. 1947, c. 71.

[19] An Act to approve the Terms of the Union of Newfoundland with Canada, S.C. 1949, c. 1.

[20] British North America Acts, 1867 to 1952, S.C. 1952, c. 15; The Representation Act, 1952, S.C. 1952, c. 48.

[21] An Act to amend the Representation Act, S.C. 1962, c. 17.

[22] Northwest Territories Representation Act, S.C. 1974-75-76, c. 28.

[23] Nunavut Act, S.C. 1993, c. 28; An Act to Amend the Nunavut Act and the Constitution Act, 1867, S.C. 1998, c. 15.

[24] In 2001, the province’s name was changed to Newfoundland and Labrador (Journals, October 30, 2001, p. 764). See also the Constitution Amendment, 2001 (Newfoundland and Labrador), SI/2001‑117.

[25] In 1865, at the time of the Confederation debates, then Attorney General John A. Macdonald (later Canada’s first Prime Minister) explained that Quebec was chosen as the pivotal province because it was “the best suited for the purpose, on account of the comparatively permanent character of its population and from its having neither the largest nor the least number of inhabitants …” (Canada, Legislative Assembly, Parliamentary Debates on the Subject of the Confederation of British North American Provinces, 3rd Session, 8th Provincial Parliament of Canada, Québec: Hunter, Rose & Co., Parliamentary Printers, 1865 (hereinafter referred to as Confederation Debates), February 6, 1865, p. 38).

[26] R.S. 1985, Appendix II, No. 5, s. 51. A less detailed census takes place every five years. See also Constitution Act, 1982, R.S. 1985, Appendix II, No. 44, ss. 41, 42 and 44.

[27] Ward, N., The Canadian House of Commons: Representation, Toronto: University of Toronto Press, 1950, pp. 39‑41.

[28] Constitution Act, 1867, R.S. 1985, Appendix II, No. 5, s. 51A. This clause was enacted as the Constitution Act, 1915, R.S. 1985, Appendix II, No. 23. Prince Edward Island was guaranteed four seats and Nova Scotia and New Brunswick 10 each. At the time of Confederation, the Senate had 72 appointed members, 24 members each from Quebec, Ontario and the Maritimes (12 for Nova Scotia and 12 for New Brunswick). When Manitoba joined Confederation in 1870, it was given two Senators; in 1871 British Columbia received three and in 1873 Prince Edward Island four (two from each of the other Maritime Provinces); Alberta and Saskatchewan were granted four Senators each in 1905. The Senate was reconstituted at 96 by the Constitution Act, 1915 (R.S. 1985, Appendix II, No. 23). Six more Senators were added when Newfoundland joined Canada in 1949 and one Senator each was added for the Yukon Territory and the Northwest Territories in 1975. In 1999, one Senator was added for the new territory of Nunavut. The Senate ordinarily has 105 members.

[29] Journals, July 5, 1943, pp. 582‑4.

[30] Only the provinces of Quebec, Manitoba, Saskatchewan and British Columbia would have had seats in proportion to their population. See Ward, The Canadian House of Commons: Representation, p. 53.

[31] British North America Act, 1946, R.S. 1985, Appendix II, No. 30. For further information, see Ward, The Canadian House of Commons: Representation, pp. 54‑5.

[32] The entry of Newfoundland in 1949 increased this total to 262.

[33] Constitution Act, 1952, S.C. 1952, c. 15, s. 1. This was the first constitutional amendment passed by the Parliament of Canada after the amending procedure for the Constitution was modified in 1949.

[34] S.C. 1974‑75‑76, c. 13. The President of the Privy Council, Mitchell Sharp, noted during second reading of this bill: “The amalgam method was devised as a means of ensuring that the population size of constituencies in Canada would not grow to a point where a Member’s ability to represent his constituents would be impaired, nor the access of constituents to their Member unduly restricted” (Debates, December 2, 1974, p. 1846). For further information, see Dawson, 6th ed., p. 91.

[35] See Debates, December 2, 1974, pp. 1845‑7 where Mitchell Sharp, President of the Privy Council, outlined the amalgam formula.

[36] Journals, January 13, 1981, pp. 1138‑9; July 8, 1982, pp. 5132‑3; October 1, 1985, p. 1051; November 21, 1985, p. 1251.

[37] S.C. 1986, c. 8, s. 2.

[38] As enacted by An Act to Amend the Nunavut Act and the Constitution Act, 1867, S.C. 1998, c. 15, s. 25.

[39] In April 1994, the Standing Committee on Procedure and House Affairs was instructed to prepare and bring in a bill respecting the system of readjusting electoral boundaries and to consider a formula to cap or reduce the number of seats in the House of Commons (Journals, April 19, 1994, pp. 368‑70). In its Fifty‑First Report, presented to the House on November 25, 1994 (Journals, p. 939), the Committee concluded that a cap or reduction in the size of the House would not be feasible because of certain constraints set out in the Constitution, notably the senatorial clause, which can only be changed with the unanimous agreement of all provinces. Capping or reducing the size of the House, while maintaining the senatorial floor, would lead to certain provinces losing a significant number of seats while others would be protected. In addition, capping the size of the House would require repealing the grandfather clause which guarantees that provinces with declining populations maintain the same number of seats they had in 1986 (Standing Committee on Procedure and House Affairs, Minutes of Proceedings and Evidence, November 25, 1994, Issue No. 33, pp. 5‑11).

[40] During the First Session (2006-07) of the Thirty-Ninth Parliament, the government introduced legislation to amend the constitutional formula for the decennial readjustment of seats with the intent of improving representation for the faster-growing provinces while protecting the number of seats for the provinces with slower-growing or declining populations (Bill C-56, An Act to amend the Constitution Act, 1867 (Democratic Representation) and Journals, May 11, 2007, p. 1394). The session was prorogued shortly thereafter. The bill was re-introduced in the Second Session (2007-08) as Bill C-22 (Journals, November 14, 2007, p. 151) and was debated at second reading on one occasion (Journals, February 13, 2008, pp. 433-4). The Thirty-Ninth Parliament was dissolved on September 7, 2008 without the House proceeding further on the bill.

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While section 51 of the Constitution Act, 1867 sets out the formula for the allocation of seats in the House of Commons among the provinces after each decennial census, the Electoral Boundaries Readjustment Act provides for the drawing of constituency or electoral district boundaries within each province by an electoral boundaries commission.[41] The boundaries of electoral districts need to be adjusted whenever a province’s representation changes or when there have been significant population fluctuations within a province, such as movement from rural to urban areas. The readjustment of boundaries is a federal matter controlled by Parliament.

*   Historical Perspective

In the early years of Confederation, after each decennial census, the government would introduce a bill describing the boundaries of each electoral district and then have the bill adopted like any other piece of legislation. This was subject to criticism as being a highly biased task focused on maximizing the governing party’s electoral successes, often referred to as “gerrymandering”.[42] In 1903, Prime Minister Sir Wilfrid Laurier altered this procedure by placing the readjustment of constituency boundaries in the hands of a special committee of the House of Commons on which Members from all parties were represented.[43] Each time a redistribution of seats was scheduled to occur, as provided for by the Constitution Act, 1867 and the latest census, the government brought in a bill which did not contain any details about the boundaries of individual ridings. After the bill was read a second time, it was referred to a special committee instructed to “prepare schedules to contain and describe the several electoral divisions entitled to return Members to this House”.[44] This process remained highly partisan and Members were not provided with guidelines upon which to base their decisions.[45] This system remained in place until 1964 when non‑partisan electoral boundaries commissions were established to draw and readjust the boundaries of electoral constituencies.

Even before Confederation, suggestions had been made to place the drawing of electoral boundaries into the hands of an impartial body, and not with Members.[46] This continued to be a concern after Confederation and, on a number of occasions, it was recommended that the process be placed instead into the hands of judges.[47] In 1963, the government introduced legislation to assign the drawing of electoral boundaries to non‑partisan commissions operating under specified general principles and, in 1964, the Electoral Boundaries Readjustment Act was passed.[48]

*   Readjustment of Electoral Boundaries

Appointment of Electoral Boundaries Commissions

As soon as possible after the completion of each decennial census, the Chief Statistician provides the Chief Electoral Officer, an Officer of Parliament who is responsible for the administration of federal elections, with the population figures.[49] The Chief Electoral Officer then calculates the total number of House of Commons seats and their distribution among the provinces and territories.[50] After this information is published in the Canada Gazette,[51] the process begins to appoint the members of each commission.

An electoral boundaries commission is appointed for each province by the Governor in Council within 60 days of the Chief Electoral Officer receiving the population figures.[52] No commission is appointed for the Yukon Territory, the Northwest Territories or Nunavut as these territories are allotted only one seat each. Each commission consists of a chairperson, normally a provincial court judge who is appointed by the chief justice of the province,[53] and two other individuals appointed by the Speaker of the House of Commons “from among such persons resident in that province as the Speaker deems suitable”.[54] No sitting member of the Senate or of the House of Commons or of a provincial or territorial legislature can be appointed to a commission.[55]

As soon as the electoral boundaries commissions have been established, the Chief Electoral Officer provides each chairperson with the population figures. The commission has up to one year from that date to recommend constituency boundaries.[56]

Drawing of Boundaries

Each commission is required to draw constituency boundaries in such a way that the population of each constituency is as close as possible to the quotient obtained by dividing the provincial population by the number of seats allocated to the province. No constituency is permitted to have a population smaller than 75% of this figure or greater than 125%, although in extraordinary circumstances a commission may exceed these limits. Commissions may vary the size of constituencies within this range on the basis of special geographic considerations, such as density of population in various regions of the province, and the accessibility, size and shape of such regions. Because accessibility, transportation, and communications are often seen as obstacles both to effective representation and to ease of campaigning, electoral boundaries commissions generally draw boundaries so that there are fewer voters in rural constituencies than in urban constituencies. Variations may also occur on the basis of a special community of interest or the historical background of a particular district.[57]

Before writing its report, each commission publishes in the Canada Gazette, as well as in newspapers in the province, a map or drawing showing the proposed electoral boundaries for the province and invites electors and Members of the House of Commons to public meetings held in locations that will encourage the attendance of as many interested people as possible. The commission’s proposals must be published at least 60 days before the date of the first hearing. Interested persons wishing to make a representation must submit their notice in writing to the commission within 53 days after the date of publication of the commission’s advertisement.[58]

Following the hearings, each commission reviews its proposals, prepares a report and forwards it to the Chief Electoral Officer before the end of its one‑year mandate, unless the Chief Electoral Officer has granted an extension of not more than six months.[59] The Chief Electoral Officer transmits a copy of each report to the Speaker of the House of Commons who tables them in the House and ensures that they are referred to a committee designated to deal with electoral matters, currently the Standing Committee on Procedure and House Affairs.[60] If reports are received between sessions, the Speaker of the House will have the reports published in the Canada Gazette and a copy of that Canada Gazette will be sent to the Members representing the electoral districts in that province.[61]

Consideration by the House

Members have 30 days following the tabling or publication of the reports to file objections in writing with the clerk of the Standing Committee on Procedure and House Affairs. Members must specify the provisions objected to in the reports and the reason for the objection. These representations are made in the form of a motion signed by at least 10 Members.[62] Following the filing deadline, the Committee has 30 sitting days to review the Members’ representations,[63] unless the Committee asks the House for an extension.[64] At the conclusion of its consideration of the reports and the objections thereto, the Committee returns the reports to the House along with a copy of the objections and its minutes of proceedings.[65] The reports and attached documents are then sent by the Speaker to the Chief Electoral Officer for distribution to the various electoral boundaries commissions.[66] No discussion of the reports or the objections thereto takes place in the House.[67]

The commissions must consider the objections but they are not compelled to make any changes as a result of the objections. Each commission then submits a final report, with or without amendment, to the Chief Electoral Officer who forwards it to the Speaker of the House.[68] Tabled in the House by the Speaker,[69] the commission’s decision is final and without appeal.

Representation Order

After each commission has submitted its final report, the Chief Electoral Officer prepares a draft representation order. The draft representation order specifies the number of Members to be elected in each province and territory, divides each province and territory into electoral districts, describes the boundaries of each district and specifies the population of and the name to be given to each district.[70] The Chief Electoral Officer forwards the draft representation order to the Minister designated by the Governor in Council as being responsible for implementing the Electoral Boundaries Readjustment Act, and it must be proclaimed by the Governor in Council within five days of its receipt.[71] The new boundaries cannot be used at the time of an election unless one year has passed between the date the representation order was proclaimed and the date that Parliament is dissolved for a general election.[72] The representation order and the proclamation declaring it to be in force must be published in the Canada Gazette within five days of the issue of the proclamation.[73]

The Electoral Boundaries Readjustment Act also stipulates that maps showing the new electoral district boundaries resulting from the readjustment process must be prepared and printed.[74]

*   Naming of Constituencies

At the time of Confederation, the electoral districts for each province were established in the Constitution Act, 1867.[75] The electoral districts existing at that time were named after counties, cities, parts of cities, and towns in each province. From 1872 to 1964, the names of the ridings were provided in legislation to enact seat redistributions and fix electoral boundaries.

Since 1964 and the adoption of the modern process for drawing electoral boundaries, the names of electoral districts are decided by the electoral boundaries commissions and included in their reports. The names are set down in the representation orders giving legal effect to these reports. The alteration to the name of an electoral district after the publication of the representation order can be effected by the passage of legislation. A Member usually introduces a bill to change the name of the electoral district in response to concerns expressed by constituents that the name does not accurately describe the boundaries of the riding.[76] Such a bill is usually entitled “An Act to change the name of the electoral district of (electoral district)”. Such bills are often dealt with quickly, typically being deemed read a second time, considered in a Committee of the Whole, reported without amendment, concurred in at the report stage, read a third time and adopted in the same sitting by unanimous consent.[77] While name changes are typically effected by a private Member’s bill, exceptionally in 2004 a government bill was introduced to change the names of 38 electoral districts; the bill passed through all stages in the House the same day.[78]

*   Suspension of the Readjustment Process

In each decade between 1960 and 2000, Parliament adopted legislation either to suspend or to amend the redistribution process for one reason or another. After both the 1971 and 1981 censuses, the readjustment process was suspended to permit amendments to section 51 of the Constitution Act, 1867 setting out the formula for representation in the House and to make some changes to the readjustment process itself.[79] The redistribution process was suspended twice following the 1991 census.

In 1992, Parliament agreed that in light of the proposed changes to the Canada Elections Act recommended by the Royal Commission on Electoral Reform and Party Financing, as well as the probability that the readjustment process could not be completed before the next federal election, the Electoral Boundaries Readjustment Act should be suspended.[80] In 1994, the government believed that it was time for a full review of the Act, given the dissatisfaction being expressed by Members about certain aspects of the process and the continual increase in the number of seats in the House after each census.[81] The readjustment process was subsequently suspended by the Electoral Boundaries Readjustment Suspension Act, 1994, which provided for the suspension of the readjustment process until the earlier of the enactment of new electoral boundaries readjustment legislation or June 22, 1995. It also temporarily discharged the existing electoral boundaries commissions of their duties once their reports to the House of Commons on electoral districts had been completed.[82] In the interim, the Standing Committee on Procedure and House Affairs was instructed to draft a bill respecting the system of readjusting electoral boundaries.[83] The Committee was also asked to consider a formula to cap or reduce the number of seats in the House and to review the method of appointing members to electoral boundaries commissions, the rules surrounding their powers and methods of proceeding, and the involvement of the public and the House of Commons in the work of the commissions.

On November 25, 1994, the Standing Committee on Procedure and House Affairs presented its report which included draft legislation to repeal the existing statute and to abolish the electoral boundaries commissions.[84] While the Committee did not recommend a change in the manner of assigning seats among the provinces after each decennial census nor a formula for capping the number of seats in the House, it did propose a new method of drawing electoral boundaries. As a result, Bill C‑69, Electoral Boundaries Readjustment Act, 1995, was introduced by the government on February 16, 1995.[85] The objective of the bill was to stop the redistribution plans and to start the process all over again, allowing the next election to be held on the basis of the 1981 boundaries. The bill would have also brought about a redistribution every five years in provinces where the shift in population warranted it, a new triggering mechanism for holding a decennial redistribution which would have eliminated an unnecessary redistribution in provinces without a significant change in population, and parliamentary oversight of appointments to electoral boundaries commissions. However, amendments subsequently proposed to the Bill by the Senate and rejected by the House prevented the Bill from being passed.[86] Since new electoral boundaries readjustment legislation had not been passed by the stipulated June 22, 1995 deadline, the Speaker tabled the reports of all the electoral boundaries commissions in the House as required and the electoral boundaries were adjusted accordingly.[87] The general election of 1997 was held on the basis of the post‑1991 redistribution and revision of boundaries.

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[41] R.S. 1985, c. E-3, s. 3.

[42] Gerrymandering is the manipulation of riding boundaries by the government party to ensure that the opposition’s vote is concentrated in as few constituencies as possible. John McMenemy explains in The Language of Canadian Politics: A Guide to Important Terms and Concepts (4th ed., Waterloo: Wilfrid Laurier University Press, 2006, p. 151) that the term “gerrymander” comes from such a manipulation in Massachusetts in 1812 by the party of Governor Elbridge Gerry, which resulted in constituencies whose configurations resembled those of a salamander. In his book, The Canadian House of Commons: Representation, Professor Norman Ward briefly describes the 1872, 1882 and 1892 redistributions as being affected by gerrymandering (pp. 26‑9).

[43] Journals, April 14, 1903, p. 116.

[44] Journals, February 19, 1914, p. 153; March 25, 1924, p. 81; November 25, 1932, p. 148; February 24, 1947, pp. 122‑3; June 28, 1952, p. 618.

[45] For a more detailed look at the history of readjustment up to the 1960s, see Ward, “A Century of Constituencies”, pp. 207‑20.

[46] Ward, “A Century of Constituencies”, p. 211.

[47] Debates, May 25, 1933, pp. 5468‑9; February 21, 1947, pp. 698‑9. Between 1958 and 1962, a private Member, Frank Howard (Skeena), annually introduced a bill to assign this task to an independent body.

[48] S.C. 1964‑65, c. 31. The bill took more than a year to go through Parliament because of disagreements over some of the major clauses (Ward, “A Century of Constituencies”, pp. 212‑6). The Act has not been amended significantly since its adoption in 1964. Since 2000, the Standing Committee on Procedure and House Affairs has recommended on numerous occasions that the Act be amended (Sixteenth Report, presented to the House on April 2, 2004 (Journals, p. 264) and presented again as its Seventh Report on October 22, 2004 (Journals, pp. 135-6) and the government’s response tabled on March 21, 2005 (Journals, p. 528); Thirty‑First Report, presented to the House on February 7, 2007 (Journals, p. 978) and the government’s response tabled on June 5, 2007 (Journals, p. 1477)). See also “Enhancing the Values of Redistribution—Recommendations from the Chief Electoral Officer of Canada Following the Representation Order of 2003”, tabled by the Speaker on May 18, 2005 (Journals, p. 767), which proposed changes to the Act.

[49] The Office of the Chief Electoral Officer is discussed in detail later in this chapter.

[50] Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑3, ss. 13 and 14.

[51] The Canada Gazette is a periodical publication of the Government of Canada containing orders in council, proclamations, regulations and other statutory instruments, and Acts of Parliament.

[52] Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑3, s. 3(1). In 2004, the Federal Court of Canada ruled that the Electoral Boundaries Commission for New Brunswick had incorrectly applied the rules governing the establishment of boundaries with respect to two ridings in 2003 (Raîche v. Canada (Attorney General), 2004 FC 679). The Court set aside the Commission’s recommendations pertaining to the boundaries of the two ridings for one year. Subsequently, on October 19, 2004, the government used the Inquiries Act (R.S. 1985, c. I-11) to create an electoral boundaries commission outside the normal decennial process to review the boundaries of the Acadie–Bathurst and Miramichi ridings and to propose changes.

[53] If the chief justice of the province does not or cannot appoint someone for whatever reason, the Chief Justice of the Supreme Court may make the appointment (Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑3, s. 5). This occurred in 1993 when the Chief Justice of the Supreme Court appointed the chairman of the British Columbia electoral boundaries commission. Originally, there was a fourth person appointed to each commission, a representation commissioner. The office of Representation Commissioner was abolished in 1979 when the incumbent retired and most of his duties were transferred to the Chief Electoral Officer.

[54] Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑3, ss. 4 to 6. After the Electoral Boundaries Readjustment Act was passed in 1964, many Members expected the Speaker to consult with party leaders prior to making appointments to the electoral boundaries commissions. Instead, the Speaker consulted with the chief justice in each province and the chairman of each commission, and generally appointed a university professor in political science and a citizen whose professional employment indicated some semblance of impartiality such as the clerk of a legislature (Ward, “A Century of Constituencies”, p. 216). See also the Thirty-First Report of the Standing Committee on Procedure and House Affairs, presented to the House on February 7, 2007 (Journals, p. 978), par. 51 to 57.

[55] Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑3, s. 10.

[56] Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑3, s. 20(1).

[57] Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑3, s. 15. In 2004, the Federal Court of Canada ruled that the Electoral Boundaries Commission for New Brunswick had not complied with this section of the Act when determining the boundaries of two ridings in the province following the 2001 census. This decision provided guidance as to the interpretation of “community of interest” (Raîche v. Canada (Attorney General), 2004 FC 679, in particular par. 66 to 82). The Commission’s recommendations were suspended and a new electoral boundaries commission was established to review the boundaries of the two ridings in question. The new Commission’s preliminary report was tabled in the House on December 3, 2004 and referred to the Standing Committee on Procedure and House Affairs (Journals, p. 292). In its Nineteenth Report presented to the House on December 7, 2004 (Journals, pp. 311‑2), the Committee reported that it had not received any objections to the Commission’s recommendations. The Commission’s final report was tabled in the House on December 9, 2004 (Journals, p. 323) and on December 10, 2004, legislation to change the boundaries of the two ridings was introduced and subsequently passed through all stages in the House the same day (Journals, pp. 338-9). The bill received Royal Assent on February 24, 2005 (Journals, p. 479). See Electoral Boundaries Readjustment Act, S.C. 2005, c. 6. See also the Fifth Report of the Standing Committee on Official Languages, presented to the House on April 9, 2003 (Journals, p. 672), in which the Committee recommended that electoral boundaries commissions consider official language minority communities when drawing boundaries. The government supported the recommendation (Journals, September 15, 2003, pp. 959-60).

[58] Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑3, s. 19.

[59] Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑3, s. 20(2).

[60] Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑3. s. 21(1). If the House is not sitting, the reports are tabled on any of the first five sitting days when the House returns. On June 10, 1994, the Standing Orders were amended to designate the Standing Committee on Procedure and House Affairs as the parliamentary committee responsible for electoral matters (Journals, June 10, 1994, p. 563; Twenty‑Seventh Report of the Standing Committee on Procedure and House Affairs, Minutes of Proceedings and Evidence, June 9, 1994, Issue No. 16, pp. 7‑8). See also Standing Order 108(3)(a)(vi).

[61] Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑3, s. 21(2).

[62] Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑3, s. 22.

[63] Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑3, s. 22. In 1995, because of the large number of objections filed, the Standing Committee on Procedure and House Affairs established four regional subcommittees to hear from Members and to make recommendations to the Committee (Standing Committee on Procedure and House Affairs, Minutes of Proceedings and Evidence, October 17, 1995, Issue No. 52, pp. 25‑6). In 2002, the Committee established one subcommittee to deal with 85 objections (Standing Committee on Procedure and House Affairs, Minutes of Proceedings, November 7, 2002, Meeting No. 6).

[64] See, for example, Journals, October 4, 1995, p. 1990; May 29, 2003, p. 826; June 12, 2003, p. 915.

[65] Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑2, s. 22(1) and (2). For the Committee’s final report on the 1995 readjustment of electoral boundaries, see Journals, November 29, 1995, p. 2188; Standing Committee on Procedure and House Affairs, Minutes of Proceedings, November 28, 1995, Issue No. 53, pp. 16‑118, in particular pp. 18‑26. In 2003, the Committee presented nine reports to the House on the readjustment of boundaries (Journals, February 5, 2003, p. 374; March 19, 2003, p. 518; May 8, 2003, p. 754; June 3, 2003, p. 837; June 5, 2003, p. 860; September 15, 2003, pp. 958-9).

[66] Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑2, s. 22(3).

[67] Until 1986, the Electoral Boundaries Readjustment Act contained provisions which allowed Members to discuss their objections to a report of an electoral boundaries commission on the floor of the House. Four debates—in 1966, 1973, 1976 and 1988—were held under the Act’s provisions (S.C. 1964‑65, c. 31, s. 20). Within 30 days of the tabling in the House of such a report, a motion for consideration of an objection to the report signed by not less than 10 Members could be filed with the Speaker. The motion would detail the provisions of the report objected to and the reasons for the objection. Within 15 days of the filing of the motion, time would be set aside under Government Orders for Members to voice their concerns about the report. Upon the conclusion of consideration of the objections, the Speaker was required to refer the objections and the relevant Debates pages back to the commission. In 1986, the Act was amended to provide for the current procedure (Representation Act, 1985, S.C. 1986, c. 8, ss. 9 and 10).

[68] Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑3, s. 23(1).

[69] Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑3, s. 23(2). See, for example, Journals, March 4, 1996, p. 36; June 13, 2003, p. 933; September 15, 2003, pp. 952, 959.

[70] Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑3, s. 24.

[71] R.S. 1985, c. E‑3, s. 25(1).

[72] Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑3, s. 25(1). In 2003, the representation order set August 25, 2004 as the date when the new electoral boundaries were to come into effect. The Act respecting the effective date of the representation order of 2003 (S.C. 2004, c. 1) changed the date to April 1, 2004 to ensure that the order was effective on the first dissolution of Parliament that occurred on or after that date. See the remarks of Don Boudria (Government House Leader) at second reading of the Bill (Debates, September 17, 2003, pp. 7464‑5).

[73] Electoral Boundaries Readjustment Act, R.S. 1985, c. E‑3, s. 26.

[74] R.S. 1985, c. E‑3, s. 28.

[75] R.S. 1985, Appendix II, No. 5, s. 40. See also Schedules 1 through 4. For an historical perspective on the naming of constituencies, see Courtney, J.C., “Naming Canada’s Constituencies”, Canadian Parliamentary Review, Vol. 23, No. 2, Summer 2000, pp. 31‑3.

[76] See, for example, Debates, June 27, 1989, pp. 3730‑3.

[77] See, for example, Journals, June 27, 1989, pp. 468‑70; September 16, 1992, pp. 2000‑1; December 2, 2004, p. 285. See also Journals, November 8, 1996, p. 856; December 12, 1996, pp. 1007, 1010 where one private Member’s bill altered the names of 22 electoral districts (An Act to change the names of certain electoral districts, S.C. 1996, c. 36). In 1998, a private Member introduced a similar bill to alter the names of a number of electoral districts. By unanimous consent, the bill passed through all stages without debate or amendment the same day (Journals, May 28, 1998, p. 902). See also S.C. 1998, c. 27.

[78] Journals, February 23, 2004, pp. 111-2. It received Royal Assent on May 14, 2004 (Journals, p. 423). See S.C. 2004, c. 19. During Senate consideration of the bill in committee, concerns were expressed about the process of changing riding names by means of a government or private Member’s bill. The Senate committee recommended that amendments be made to the Electoral Boundaries Readjustment Act to address objections to a proposed electoral district name. See the Eighth Report of the Standing Senate Committee on Legal and Constitutional Affairs, presented to the Senate on May 6, 2004 (Journals of the Senate, pp. 519-21). See also the Seventh Report of the Standing Senate Committee on Legal and Constitutional Affairs, presented to the Senate on June 22, 2000 (Journals of the Senate, pp. 770-1, 781-3) and Recommendation 9 in the Thirty‑First Report of the Standing Committee on Procedure and House Affairs, presented to the House on February 7, 2007 (Journals, p. 978).

[79] Representation Act, 1974, S.C. 1974‑75‑76, c. 13; Representation Act, 1985, S.C. 1986, c. 8.

[80] Debates, May 1, 1992, pp. 9995‑8. Bill C‑67, the Electoral Boundaries Suspension Act was subsequently granted Royal Assent on June 18, 1992 (Journals, p. 1800). See also S.C. 1992, c. 25.

[81] Debates, March 21, 1994, pp. 2518‑20.

[82] Initially, when the House passed the Bill at the third reading stage, the legislation stipulated that the electoral boundaries commissions would cease to exist and the operation of the Electoral Boundaries Readjustment Act would be suspended for 24 months on the day the Act was assented to. However, the Senate amended the legislation to allow the commissions to hold public hearings on their proposals and fixed February 6, 1995, as the date on which the suspension would end (Journals, May 25, 1994, p. 478). The House concurred in the amendments proposed by the Senate with the exception of the February 6, 1995 date. The date was pushed back to June 22, 1995 and the legislation was eventually adopted by both Houses and assented to on June 15, 1994. See Journals, June 3, 1994, p. 528, Debates, pp. 4811‑2; Journals, June 9, 1994, p. 557; June 14, 1994, p. 585.

[83] Journals, April 19, 1994, pp. 368‑70.

[84] Journals, November 25, 1994, p. 939; Standing Committee on Procedure and House Affairs, Minutes of Proceedings and Evidence, November 25, 1994, Issue No. 33, pp. 5‑40.

[85] Journals, February 16, 1995, p. 1141.

[86] Journals, June 8, 1995, pp. 1600‑1; June 14, 1995, pp. 1748‑9; June 19, 1995, pp. 1786‑8; June 20, 1995, pp. 1817‑21. See also Debates, June 14, 1995, pp. 13854‑5. The Senate objected to the provision whereby a commission would not be established in a province where there had not been a significant change in population, the reduction of the maximum deviation from the electoral quotient to 15 percent from 25 percent, parliamentary oversight of appointments to electoral boundaries commissions and the proposed definition of “community of interests”. The Senate also opposed the next election being held on the basis of electoral boundaries drawn after the 1981 census and not on the basis of electoral boundaries required to be redrawn after the 1991 census. See also Journals of the Senate, June 8, 1995, pp. 998‑1001, Debates of the Senate, pp. 1725‑7, 1730‑5.

[87] Journals, June 22, 1995, p. 1867.

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With few exceptions, anyone who is qualified to vote can seek election to the House of Commons. The qualifications and disqualifications for candidacy in a federal election are set down in the Canada Elections Act,[88] the Parliament of Canada Act[89] and the Constitution Act, 1982.[90]

*   Historical Perspective

The qualifications for candidacy for persons seeking election to the House of Commons have been revised on numerous occasions and have always been closely linked with the right to vote. During periods when classes of persons were disenfranchised, they were also disqualified from seeking election. In 1867, the Constitution Act stated that all laws in force in the provinces respecting qualifications and disqualifications of persons seeking election to provincial legislatures would apply to the election of Members to the House of Commons until the Parliament of Canada enacted its own legislation.[91] Although the Constitution Act, 1867 did stipulate (as did the provincial laws) that voters had to be male, British subjects, at least 21 years of age and property owners,[92] the qualification provisions for candidates in each province were not necessarily the same and there was no uniformity of qualifications for the first Members returned to the House. Indeed, candidates did not have to reside in the country and until 1873, some Members sat not only in the House of Commons, but also in the legislative assemblies of Ontario and Quebec.[93] In 1874, Parliament passed its own legislation providing for the election of Members. The Dominion Election Act abolished the property qualification for candidates and declared that any British‑born or naturalized male subject of Great Britain, Ireland, or Canada or one of its provinces was eligible for candidacy in an election.[94]

There were few changes to the electoral laws respecting qualifications for candidacy until the early twentieth century. In 1919, women received the franchise and the right to be candidates in an election.[95] In 1948, the Dominion Elections Act was amended to ensure that candidates were Canadian residents and qualified electors; amendments also eliminated disqualification from voting on the basis of race (status Indians excepted), which in turn opened up candidacy to people of Oriental origin, in particular to Japanese‑Canadians.[96] In 1950, Inuit people were given the franchise and the right to seek a seat in the House of Commons[97] and in 1955, revisions to the Act gave the franchise to various religious groups, in particular to Doukobours, who had previously been disenfranchised because they were conscientious objectors.[98] Aboriginal persons received the right to vote and seek election in 1960.[99] In 1970, the voting age was lowered to 18 as was the age requirement for candidacy.[100]

In addition to disqualifications based on the franchise, individuals were prevented from seeking election if they were government employees or held a government contract. This disqualification was based on the principle of “independence of Parliament”. Professor Norman Ward noted: “It is an ideal of democratic government that representation should be independent of undesirable forces that might bias their judgement on public matters. In particular, they should be free of the executive, at least insofar as direct pecuniary benefit is concerned”.[101] Thus, in 1867, the Parliament of Canada re‑enacted 1857 legislation from the Province of Canada which disqualified from eligibility as a Member of the Assembly or from sitting or voting therein, any person who had accepted or held “any office, commission or employment in the service of the Government of Canada at the nomination of the Crown, to which an annual salary or any fee, allowance, or emolument in lieu of an annual salary from the Crown [was] attached”.[102] This provision also disqualified Members appointed to the Cabinet: Cabinet Ministers had to resign their seat and seek re‑election in order to obtain the approval of the electors in their constituencies. Also disqualified from eligibility were government contractors and officers of the navy and militia. In 1878, the Act was amended to exempt from disqualification Members already holding a ministerial position and to further disqualify sheriffs, registrars of deeds, clerks of the peace, and county Crown attorneys.[103] In 1931, an amendment to the Senate and House of Commons Act freed Ministers appointed after an election from the necessity of vacating their seats and seeking re‑election.[104]

In 1992, the Royal Commission on Electoral Reform and Party Financing, also known as the Lortie Commission, recommended the removal of the office of profit or emolument disqualification from the Canada Elections Act, arguing that public officers and employees had the right to a leave of absence to seek a nomination and contest an election.[105] Once elected to the House of Commons, the individual’s employment with the Crown would then be deemed terminated in order to avoid any conflict of interest issues. In regard to the eligibility of a candidate holding a government contract, the Lortie Commission recommended the removal of this disqualification, reasoning that, if elected, the Member would then have to bring the contractual relationship in line with the rules governing the conduct of Members. In 1993, these recommendations were included in legislation introduced, and subsequently passed, to amend the Canada Elections Act.[106]

*   Qualifications for Membership

As stated in the Charter of Rights and Freedoms, “every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein”.[107] Thus, with few exceptions, any Canadian citizen at least 18 years of age on polling day, who is qualified as an elector, is eligible to be a candidate in an election.[108] A candidate must have established residency somewhere in Canada but not necessarily in the constituency where he or she is seeking election.[109] The candidate is not required to have the backing of a registered political party. In addition, a candidate may seek election in only one electoral district.[110]

The Canada Elections Act also sets out a series of disqualifications for electoral candidacy. Inmates of penal institutions are disqualified from seeking election.[111] Certain officials such as sheriffs, clerks of the peace, and county Crown Attorneys may not seek election.[112] Similarly, federally‑appointed judges (citizenship judges excepted) and election officials are disqualified from seeking election.[113] Members of provincial and territorial legislatures are also ineligible to run in federal elections.[114] Furthermore, any person who had been a candidate in a previous election but who did not file required election documents with the Chief Electoral Officer is not eligible to seek election.[115]

A person found guilty of an offence that is a corrupt practice under the Canada Elections Act, such as voting more than once, obstructing an election officer, or offering a bribe, is disqualified from seeking election for seven years following the date of the conviction.[116] A person guilty of an offence that is an illegal practice under the Canada Elections Act, such as exceeding election expense limits, obstructing the electoral process or taking a false oath, is disqualified from seeking election for five years from the date of conviction.[117]

Senators must resign their seats to seek election to the House; similarly, if a Member accepts an appointment to the Senate,[118] or an appointment to the office of Governor General, a judgeship or any other such public office, his or her seat will be declared vacant.[119]



[88] S.C. 2000, c. 9, s. 65.

[89] R.S. 1985, c. P‑1, ss. 21 to 24.

[90] R.S. 1985, Appendix II, No. 44, s. 3.

[91] R.S. 1985, Appendix II, No. 5, s. 41. See Confederation Debates, February 6, 1865, p. 39, where Attorney General John A. Macdonald said: “Insuperable difficulties would have presented themselves if we had attempted to settle now the qualification for the elective franchise”. Between 1867 and 1885, five federal general elections were held with the electorate varying from province to province under the provincial election laws then in force. In all provinces, there were nonetheless three basic conditions: electors had to be male, 21 years of age and British subjects either by birth or naturalization (Office of the Chief Electoral Officer of Canada, A History of the Vote in Canada, 2nd ed., www.elections.ca, 2007, p. 45). In 1885, control of the federal franchise was shifted to the federal level (Electoral Franchise Act, S.C. 1885, c. 40) and then back to the provinces in 1898 (The Franchise Act, 1898, S.C. 1898, c. 14). It was only in 1920 that Parliament regained control (A History of the Vote in Canada, 2nd ed., p. 40).

[92] R.S. 1985, Appendix II, No. 5, s. 41. Property qualifications in terms of real estate ranged at Confederation from $100 in New Brunswick to $150 in Nova Scotia to $300 in Ontario and Quebec. Citizens were allowed to vote in each area in which they owned property. See Ward, The Canadian House of Commons: Representation, pp. 63‑5.

[93] Bourinot, J.G., Parliamentary Procedure and Practice in the Dominion of Canada, South Hackensack, New Jersey: Rothman Reprints Inc., 1971 (reprint of 1st ed., 1884), pp. 124‑8. Twenty‑five Members from Ontario and Quebec also sat in their provincial legislatures and, in both provinces, a majority of the Cabinet held federal seats. In 1873, a private Member successfully sponsored a bill to make the practice of dual representation illegal (An Act to render Members of the Legislative Councils and Legislative Assemblies of the Provinces now included, or which may hereafter be included within the Dominion of Canada, ineligible for sitting or voting in the House of Commons of Canada, S.C. 1873, c. 2). Two members of the Legislative Assembly of Prince Edward Island were elected to the House after dual representation was abolished: S.F. Perry in 1874 and J.E. Robertson in 1883. Mr. Perry was allowed to maintain his seat in the House while the House rejected Mr. Robertson’s election. For a historical perspective, see Ward, The Canadian House of Commons: Representation, pp. 65‑9.

[94] S.C. 1873‑74, c. 9, s. 20. These provisions were so widely accepted that they were only included in the statute when the Senate insisted on an amendment to the legislation stipulating that candidates be British subjects by birth or naturalization. Section 40 of the Act also stipulated that all persons qualified to vote in provincial elections were eligible to vote in federal general elections.

[95] Dominion By‑Election Act, S.C. 1919, c. 48, s. D. See also Dominion Elections Act, S.C. 1920, c. 46, s. 38 which provided universal access to the vote without reference to property ownership. In 1917, when Parliament passed the Military Voters Act (S.C. 1917, c. 34), some 2000 military nurses received the right to vote. The War‑time Elections Act (S.C. 1917, c. 39) conferred the right to vote on spouses, widows, mothers, sisters, and daughters of any persons who had served or were serving in the Canadian forces provided they met the age, nationality and residence requirements for electors in their respective provinces or the Yukon. Women received the franchise to vote in provincial elections in the following sequence: Manitoba (January 28, 1916); Saskatchewan (March 14, 1916); Alberta (April 19, 1916); British Columbia (April 5, 1917); Nova Scotia (April 26, 1918); Ontario (April 24, 1919); Prince Edward Island (May 3, 1922); Newfoundland (May 13, 1925); New Brunswick (March 9, 1934); Quebec (April 24, 1940). The general election of 1921 was the first one open to all Canadians, men and women, over the age of 21. Four women ran but only one was elected. Agnes Campbell MacPhail became the first woman elected to the House of Commons when she won a seat as an independent Member for the riding of Grey Southeast in Ontario. She was re‑elected four times. Between 1920 and 1945, only five women sat in the House (Fraser, J.A., The House of Commons at Work, Montreal: Les Éditions de la Chenelière inc., 1993, p. 67). Ellen Louks Fairclough became the first female Cabinet Minister on June 21, 1957, when she was appointed Secretary of State. In 2004, 65 women were elected to the House of Commons; 64 women were elected in 2006 and 69 in 2008. For further information on women and the franchise, see A History of the Vote in Canada, 2nd ed., pp. 59‑68.

[96] An Act to amend the Dominion Elections Act, 1938, S.C. 1948, c. 46, ss. 6 and 12. For further information on racial exclusions, see A History of the Vote in Canada, 2nd ed., pp. 79-81. The residency requirement had long been a matter of concern in the House. See, for example, Debates, April 11, 1890, cols. 3197‑8, where a Member explained to the House that although he had moved his residence to England, he did not intend to resign his seat in the House.

[97] An Act to amend the Dominion Elections Act, 1938, S.C. 1950, c. 35, s.1. Peter Ittinuar (Nunatsiaq) was the first Inuit elected to the House in the general election of May 22, 1979.

[98] An Act to amend the Canada Elections Act, S.C. 1955, c. 44, s. 4(1). For further information on religious exclusions, see A History of the Vote in Canada, 2nd ed., pp. 81‑3.

[99] An Act to amend the Canada Elections Act, S.C. 1960, c. 7, s. 1. Aboriginals were no longer required to give up their treaty rights or Indian status to vote in federal elections. The first Aboriginal person to be elected to the House of Commons was Leonard S. Marchand (Kamloops–Caribou) on June 25, 1968. The first native woman elected to the House was Ethel Blondin‑Andrew (Western Arctic) on November 21, 1988. It is interesting to note that Métis people were never disenfranchised and the first Métis Members (Angus McKay (Marquette) and Pierre Delorme (Provencher)) were elected to the House on March 2, 1871. Two years later on October 13, 1873, Louis Riel (Provencher) was elected for the first time. For further information on Aboriginals and the vote, see A History of the Vote in Canada, 2nd ed., pp. 83‑7.

[100] Canada Elections Act, S.C. 1969‑70, c. 49, s. 14. The youngest person to sit in the House of Commons was Claude-André Lachance (Lafontaine) who was 20 years, 3 months and 3 days old when he was first elected in 1974. Sean O’Sullivan (Hamilton–Wentworth) was a close second at 20 years, 9 months and 30 days upon his election in 1972.

[101] Ward, The Canadian House of Commons: Representation, p. 83.

[102] An Act further securing the independence of Parliament, S.C. 1867, c. 25. In 1871, the words “permanent or temporary” were added after the phrase “office, commission or employment” (Independence of Parliament Act, S.C. 1871, c. 19).

[103] An Act further securing the Independence of Parliament, S.C. 1878, c. 5. For a historical perspective, see Bourinot, 1st ed., pp. 128‑37.

[104] S.C. 1931, c. 52. See also Parliament of Canada Act, R.S. 1985, c. P-1, s. 33.

[105] In November 1989, the government appointed a five‑person Royal Commission on Electoral Reform and Party Financing to inquire into and report on the process for electing Members to the House of Commons and the financing of political parties and candidates’ campaigns. Its report was tabled in the House on February 13, 1992, and contained 267 recommendations, including draft legislation (Journals, p. 1016). Following the tabling of this report, the Special Committee on Electoral Reform was established to conduct a comprehensive review of the report and to report its recommendations for changes in the Canada Elections Act. Its report also included the removal of the office of profit or emolument disqualification (Special Committee on Electoral Reform, Minutes of Proceedings and Evidence, December 11, 1992, Issue No. 7, pp. 3‑5, 29).

[106] Bill C‑114, An Act to amend the Canada Elections Act, received Royal Assent on May 6, 1993 (Journals, p. 2935). See also Parliament of Canada Act, R.S. 1985, c. P‑1, s. 32. Also included in the legislation was an amendment to allow persons confined to an institution because of mental illness to vote, and by extension, to be candidates during the period of confinement or while under the protection and supervision of a guardian (S.C. 1993, c. 19, s. 23(3)).

[107] Constitution Act, 1982, R.S. 1985, Appendix II, No. 44, s. 3. The Chief Electoral Officer and the Assistant Chief Electoral Officer are prohibited from voting in a federal election (Canada Elections Act, S.C. 2000, c. 9, s. 4).

[108] Canada Elections Act, S.C. 2000, c. 9, ss. 3 and 65.

[109] As an example, there have been occasions when party leaders who were not Members of Parliament have sought a seat in the House of Commons in a riding where they did not live. In these instances, the sitting Member resigned his or her seat and a by‑election took place. In 1983, Brian Mulroney was elected leader of the Progressive Conservative Party of Canada. Later that year, Elmer McKay resigned his Central Nova seat and Mr. Mulroney won a by‑election in the riding. In 1990, Jean Chrétien was elected to the leadership of the Liberal Party of Canada. Fernand Robichaud resigned his Beauséjour seat shortly thereafter and Mr. Chrétien won the seat in a by‑election. In 2000, Scott Brison resigned his Kings–Hants seat to allow Joe Clark, the leader of the Progressive Conservative Party, to run for a seat in the House.

[110] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 21. Until 1919, candidates were permitted to contest more than one seat in a general election. In 1920, legislation was adopted to put an end to this practice (An Act to amend the House of Commons Act, S.C. 1920, c. 18. s. 1). See the remarks of the Bill’s sponsor, S.W. Jacobs (George‑Étienne Cartier) at second reading (Debates, September 18, 1919, p. 439). If a Member was returned for two constituencies, he had to formally resign one of the seats. It was the practice of party leaders routinely to seek two seats in an election. In the general election of 1878, at a time when the polls were not confined to one day exclusively due to geographic and other factors, Sir John A. Macdonald contested three seats. He was defeated in Kingston, Ontario on September 17, yet was elected two days later in Marquette, Manitoba. Pursuant to the law at that time, upon his acceptance of the office of Prime Minister, he vacated this seat and was subsequently elected to represent Victoria, British Columbia on October 21. In 1896, Sir Wilfrid Laurier won his own safe seat in Quebec East and also captured Saskatchewan (NWT) from the opposition. He resigned the latter seat. In 1908, Sir Robert Borden won a safe seat in Carleton (Ontario) and a doubtful one in Halifax, Nova Scotia. He relinquished Carleton. Party leaders, who successfully ran in more than one riding, resigned one of the seats immediately in only six of the 14 instances. See Ward, The Canadian House of Commons: Representation, pp. 81‑2. However, if one of the elections was contested, the Member could not resign from either. This happened to Sir John A. Macdonald in 1882 and to Sir Wilfrid Laurier who held two seats from 1911 to 1917.

[111] Canada Elections Act, S.C. 2000, c. 9, s. 65(g). See also section 4(c) which prohibits inmates serving sentences longer than two years in a correctional institution from voting. In 2002, the Supreme Court of Canada struck down this provision, declaring that all prison inmates who are otherwise eligible to vote in a federal election may vote regardless of the length of their sentences (Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519). The government has yet to introduce statutory amendments to reflect the Court’s decision. The Chief Electoral Officer currently uses his adaptation power to provide a process to allow federal prisoners to vote by special ballot. See the Thirteenth Report of the Standing Committee on Procedure and House Affairs, presented to the House on June 22, 2006 (Journals, p. 344), in particular Recommendation 1.15 of the Chief Electoral Officer, and the government’s response tabled in the House on October 20, 2006 (Journals, p. 558). For further information, see A History of the Vote in Canada, 2nd ed., pp. 97‑9.

[112] Canada Elections Act, S.C. 2000, c. 9, s. 65(d).

[113] Canada Elections Act, S.C. 2000, c. 9, s. 65(f) and (h). It has only been since 1993 that judges have had the right to vote (S.C. 1993, c. 19, s. 23).

[114] Canada Elections Act, S.C. 2000, c. 9, s. 65(c). This prohibition can also be found in the Parliament of Canada Act, R.S. 1985, c. P‑1, s. 22. Similarly, most provincial and territorial electoral statutes and/or statutes regulating the composition and conduct of these legislatures prohibit Members of the House of Commons from seeking election to a provincial or territorial legislative assembly without first resigning their seats. For further information, see the section in this chapter entitled “Vacancies in Representation”. The Parliament of Canada Act also contains provisions declaring a Member’s election void and his or her seat vacant if the Member is elected to the legislature of any province (R.S. 1985, c. P-1, s. 23).

[115] Canada Elections Act, S.C. 2000, c. 9, s. 65(i).

[116] S.C. 2000, c. 9, ss. 65 and 502(2) and (3). See also Standing Order 23(2).

[117] S.C. 2000, c. 9, ss. 65 and 502(1) and (3).

[118] Constitution Act, 1867, R.S. 1985, Appendix II, No. 5, s. 39. As an example, Robert de Cotret was appointed to the Senate on June 5, 1979. He resigned from the Senate on January 14, 1980 to run, unsuccessfully, as a candidate in the February 18, 1980 general election. On October 26, 2000, Bernie Boudreau, who had been appointed to the Senate on October 4, 1999, resigned to seek a seat in the House of Commons in the general election of November 27, 2000. He was unsuccessful. Michael Fortier was appointed to the Senate on February 27, 2006. He resigned his seat on September 7, 2008 to seek a seat in the House in the general election of October 14, 2008. He was not elected.

[119] Parliament of Canada Act, R.S. 1985, c. P-1, s. 35. For further information, see the section in this chapter entitled “Vacancies in Representation”.

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A dissolution of Parliament terminates all business in the Senate and in the House of Commons and is followed by a general election. Unless Parliament is dissolved earlier, the date of a general election is set in accordance with the provisions of the Canada Elections Act which stipulates that each general election must be held on the third Monday of October in the fourth calendar year following polling day for the last general election.[120]

The election process has evolved considerably since 1867. The Constitution Act, 1867 stated that electoral laws in force at the time in the provinces would apply to the election of Members until such time as Parliament enacted its own legislation.[121] Thus, in 1867 and in 1872, polling days were held on different days in different locations over several weeks:[122] in 1867, elections were held on different dates in different ridings over a period of six weeks; the 1872 election lasted three months.[123] Moreover, with the exception of elections in New Brunswick where the secret ballot had been adopted in 1855, voting was done orally.[124] In 1874, Parliament passed electoral legislation which stipulated that votes had to be cast on the same day in all electoral districts and by secret ballot.[125] A number of administrative and process amendments were made to the legislation over the following decades and in 1920 a new statute was enacted. Among other matters, the Dominion Elections Act created the office of the Chief Electoral Officer to oversee the election process.[126] In 1929, the Act was amended to establish Monday as polling day, unless that day was a statutory holiday, in which case the election was held the next day.[127] Statutory provisions to limit the length of an election were only introduced in 1982 when the electoral period was set at a minimum of 50 days;[128] in 1993, the election period was shortened to a minimum of 47 days.[129] In 1996, amendments to the Canada Elections Act introduced a permanent register of electors, reduced the minimum time required between the issue of the election writs and polling day to 36 days and staggered the hours of voting across Canada’s six time zones with polling stations open 12 hours in each region.[130] In 2000, the Canada Elections Act was repealed and replaced with an identically titled new statute which modernized the organization and terminology of electoral legislation.[131] In addition, the new statute repealed the Dominion Controverted Elections Act which dealt with disputed election results; new provisions for resolving such matters were added to the Canada Elections Act. The Corrupt Practices Inquiries Act (1876) and the Disfranchising Act (1894) were also repealed.[132] In 2007, the Act was amended to provide for fixed elections every four years.[133]

*   Issue of the Writs of Election for a General Election

The Prime Minister begins the process of calling a general election by presenting the Governor General with an Instrument of Advice recommending that Parliament be dissolved. Once the proclamation dissolving Parliament has been issued, the Prime Minister presents an Order in Council to the Governor General recommending that writs of election be issued and fixing the date of the election as well as the date for the return of the writs. The Governor General then issues a proclamation for the issuance of writs of election.[134]

When a general election is called, the Chief Electoral Officer issues each returning officer a writ of election.[135] A writ is a formal written order instructing the returning officer in each electoral district to hold an election for a Member of Parliament. The writ specifies the polling date and the date on which the writ, with the name of the successful candidate noted on the back, is to be returned to the Chief Electoral Officer.[136] The date of the issue of the writ, the polling day and the date for the return of the writ are the same for each electoral district[137] (see Figure 4.3).

The returning officer is responsible for the conduct of an election within an electoral district.[138] One returning officer is appointed by the Chief Electoral Officer for each electoral district following a competitive process.[139] The Chief Electoral Officer establishes the qualifications for returning officers as well as the appointment process and reports these to the Speaker, who tables the report in the House.[140] The returning officer is appointed for a term of 10 years.[141]

 

Image of the text of a Writ of General Election.

The writs of election cannot be issued or dated later than the 36th day before polling day, making the minimum length of a federal election campaign 36 days.[142] After the returning officer receives the writ, he or she prepares a notice of election that indicates the deadline for the receipt of nominations, the date for polling day, the date and time for the validation of the results and the address of the returning officer’s office[143] (see Figure 4.4).

No later than 2:00 p.m. on nomination day, which is Monday, the 21st day before polling day,[144] each candidate must file with the returning officer several documents, including the nomination paper, a declaration signed by the candidate stating that he or she accepts the nomination, a declaration of acceptance signed by the candidate’s official agent and a statement of acceptance signed by the candidate’s auditor. A $1,000 deposit is also required to ensure the candidate’s intention to stand as an official candidate.[145] Candidates who change their mind have until 5:00 p.m. on nomination day to withdraw.[146]

Where only one candidate has been officially nominated for an electoral district, the returning officer immediately returns the writ of election to the Chief Electoral Officer stating that the candidate is duly elected for that electoral district.[147]

*   Issue of Writ for a By-election

Whenever a vacancy in the representation of the House occurs during a Parliament, for whatever reason, the Speaker addresses a warrant (a written authorization) to the Chief Electoral Officer for the issue of a writ of election to fill the vacancy.[148] The writ for a by‑election must be issued between the 11th day and the 180th day after the receipt of the warrant by the Chief Electoral Officer.[149] While the Parliament of Canada Act requires by‑elections to be called within six months of a seat becoming vacant, there is no limit on how far in the future the actual date of the by‑election may be set. The date of the by‑election is fixed by the Governor in Council and must be at least 36 days after the issue of the writ.[150] More than one by-election may be held on the same day.

A writ for a by‑election is superseded and withdrawn if Parliament is dissolved prior to the date set for the by-election.[151]

 

Image of the text of a notice of election prepared by a returning officer.

*   Return of the Writ

After the close of the polls on election day, the ballots in each polling station are counted in the presence of the poll clerks and any candidates or their representatives.[152] The results are sealed in ballot boxes and sent to the returning officer for validation.[153] In the notice of election that each returning officer issues upon receipt of the writ of election, the time and date for the validation of the election results are indicated; that date must not be later than seven days following the polling date.[154] Normally, no later than six days following the completion of the validation of the results, the returning officer is required to complete the form on the back of the writ, declaring a candidate elected.[155] The returning officer returns the writ of election along with a post‑election report and all other election documents to the Chief Electoral Officer.[156]

A judicial recount of the ballots is requested automatically by the returning officer whenever the winning candidate is separated from any other candidate by less than one one‑thousandth (1/1000) of the total votes cast.[157] A recount may also take place if, within four days of the validation of the results, an elector applies to a judge for a recount, claiming that there were irregularities in the addition of the ballots; the application must include an affidavit of a credible witness to the counting.[158] The judicial recount is conducted by a judge and must take place no later than four days after the application has been received.[159] The judge conducts the recount by adding the number of votes reported in the statements of the vote prepared by the deputy returning officers on the night of the election or by counting all valid votes.[160]

As soon as the recount is completed, the judge prepares a certificate setting out the number of votes cast for each candidate and delivers it to the returning officer.[161] The results of the recount are final. The returning officer completes the return of the writ for the candidate who received the majority of the votes and sends the writ to the Chief Electoral Officer.[162]

If the recount results in two candidates receiving the same number of votes, the Chief Electoral Officer informs the Speaker that no candidate has been declared elected because of the equality of the vote.[163] In such case, a by-election must be held in that district.

The Chief Electoral Officer publicizes the name of each candidate declared elected in the Canada Gazette.[164] In addition, the Chief Electoral Officer is required to publish a report of the official voting results of each polling division without delay following a general election and within 90 days of a by-election.[165] The Chief Electoral Officer also provides Parliament with a report on the conduct of a general election within 90 days of the date set for the return of the writs and within 90 days of the end of the calendar year for any by-election held that year.[166]

The Chief Electoral Officer provides the Clerk of the House with a certified list of Members returned to serve in the House of Commons. The list is tabled in the House by the Clerk at the beginning of the first session of the new Parliament and is included in the Journals.[167]

The official agents of all candidates must provide the Chief Electoral Officer with an electoral campaign return within four months of polling day.[168] If an elected candidate fails to submit the return within the prescribed time, he or she will not be permitted to sit or vote in the House until the report is filed.[169]

*   Contested Elections

An election may be contested (i.e., challenged) if there are allegations that irregularities affected the outcome of the election in a particular riding or if there are grounds to believe a candidate was not eligible to seek election.[170]

Prior to Confederation, Nova Scotia, New Brunswick and the Province of Canada followed the example of the British Parliament in dealing with electoral matters in their own legislatures. After Confederation, between 1867 and 1873, the Speaker of the House of Commons regularly appointed six Members to serve on the General Committee of Elections to adjudicate contested elections.[171] This Committee routinely passed judgement on cases of bribery and corruption in electoral contests, usually on partisan grounds and regardless of any findings of corrupt practices. Indeed, only one election was ever voided.[172] In 1873, the House transferred to the provincial courts exclusive jurisdiction over matters relating to the election of its Members.[173] A candidate or any qualified elector who wished to contest the result of an election filed an election petition with the provincial or territorial court designated in the Dominion Controverted Elections Act to hear such cases. Trials were conducted without jury by two superior court justices for the province in which the disputed election took place. The judges would award the election to a candidate other than the one who was declared elected by the returning officer, or declare the election null and void, or dismiss the petition (i.e., confirm the original result). With the introduction of the secret ballot, simultaneous elections across the country, and the enactment of new election laws, the number of contested elections gradually dropped.[174] Since 1949, only five elections have been declared void, all on the grounds that a number of ballots were unlawfully cast.[175] In 2000, the Dominion Controverted Elections Act was repealed and modern provisions for dealing with contested elections were included in the Canada Elections Act.[176]

Any elector who was eligible to vote in the electoral district or any candidate in that district may submit an application to contest the election before a judge in a designated provincial or territorial court.[177] If the basis for the application is that irregularities occurred in the election, the application must be filed no later than 30 days after the publication of the election result in the Canada Gazette or within 30 days of the applicant being first aware that an irregularity had occurred.[178] The judge will hear the application and either dismiss it if there is no evidence to support the allegation or declare the election null and void if the allegation is substantiated.[179]

The court sends a copy of the decision to the Speaker; the Speaker will also be informed if an appeal has been filed.[180] If no appeal has been filed, the decision is tabled in the House.[181] An appeal to the Supreme Court of Canada must be filed within eight days of the decision being rendered and is heard without delay.[182] The Supreme Court’s decision is transmitted to the Speaker who tables it in the House.[183] If the election is declared null and void, the Speaker addresses a warrant to the Chief Electoral Officer for the issue of a writ for a new election.[184]

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[120] S.C. 2000, c. 9, s. 56.1. It is important to note that the Canada Elections Act does not affect the powers of the Governor General, including the discretionary power to dissolve Parliament at any time (s. 56.1(1)). If the Chief Electoral Officer is of the opinion that the third Monday in October is not suitable, for cultural, religious or other reasons, he or she may recommend another date to the Governor in Council (s. 56.2(1)). The alternate day must either be the Tuesday immediately following the Monday that would otherwise be polling day or the Monday of the following week (s. 56.2(4)). For further information, see Chapter 8, “The Parliamentary Cycle”.

[121] R.S. 1985, Appendix II, No. 5, s. 41.

[122] Jackson and Jackson (6th ed., p. 437) states that this allowed the government to control the timing of elections in each region: “Elections were held first in those areas where the government was the most popular, moving to areas of lesser support only later”. This system even allowed a candidate who lost in one riding to run again in another riding (A History of the Vote in Canada, 2nd ed., p. 43).

[123] A History of the Vote in Canada, 2nd ed., p. 43. See also Appendix 12, “General Election Results Since 1867”.

[124] A History of the Vote in Canada, 2nd ed., p. 43.

[125] An Act respecting the Elections of Members of the House of Commons, S.C. 1874, c. 9.

[126] S.C. 1920, c. 46, in particular s. 19.

[127] An Act to amend the Dominion Elections Act, S.C. 1929, c. 40, s. 15.

[128] An Act to amend the Canada Elections Act, S.C. 1980-81-82, c. 96, s. 2. The government had originally proposed a 47-day campaign period. Prior to 1982, campaigns averaged about 60 days because of the time needed to prepare and finalize the voters’ list. See the comments of Donald S. Macdonald (President of the Privy Council) in 1970 at second reading of Bill C-215, An Act respecting the franchise of electors and the election of members to the House of Commons (Debates, May 27, 1970, pp. 7391-4) and of David Collenette (Parliamentary Secretary to the President of the Privy Council) in 1981 at second reading of Bill C-58, An Act to amend the Canada Elections Act (Debates, April 14, 1981, pp. 9279-81).

[129] An Act to amend the Canada Elections Act, S.C. 1993, c. 19, s. 3.

[130] An Act to amend the Canada Elections Act, the Parliament of Canada Act and the Referendum Act, S.C. 1996, c. 35. See also Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy: Final Report, Vol. 2, Ottawa: Minister of Supply and Services Canada, 1991, p. 79, tabled in the House on February 13, 1992 (Journals, p. 1016). Prior to the passage of the 1996 amendments, the enumeration or collection of names of voters was done after an election was called. Since mid‑campaign enumeration is no longer required because of the establishment of a permanent register of electors, it was feasible to shorten the election campaign period to 36 days. In addition, the staggered hours of polling rectified the long‑standing grievance of western voters who heard election results from eastern and central Canada while the polls in the west were still open. For further information, see A History of the Vote in Canada, 2nd ed., pp. 103-4.

[131] Canada Elections Act, S.C. 2000, c. 9. The new statute reflected recommendations made by the Royal Commission on Electoral Reform and Party Financing in 1991, by the Chief Electoral Officer in his reports to Parliament and by the Standing Committee on Procedure and House Affairs in 1998 (Thirty-Fifth Report, presented on June 18, 1998 (Journals, September 21, 1998, p. 1039)). See also the remarks of Don Boudria (Government House Leader) during debate on the motion to refer the Bill to committee before second reading (Debates, October 19, 1999, pp. 307‑9).

[132] The Corrupt Practices Inquiries Act was adopted in 1876 and provided for the establishment of a commission of inquiry to investigate the existence of corrupt or illegal practices at the election of Members of the House of Commons (S.C. 1876, c. 9 and c. 10). The Disfranchising Act was enacted in 1894 and provided for the presentation to the courts of a petition alleging bribery in an election and for the disenfranchment of electors who had taken bribes (S.C. 1894, c. 14).

[133] An Act to amend the Canada Elections Act, S.C. 2007, c. 10. Further information on the evolution of the electoral process can be found on the Elections Canada Web site at www.elections.ca. See also Chapter 8, “The Parliamentary Cycle”.

[134] Canada Elections Act, S.C. 2000, c. 9, s. 57(1). See, for example, Canada Gazette, Part II, Vol. 139, Extra, December 1, 2005; Part II, Vol. 142, Extra, September 8, 2008. The Governor in Council may order the withdrawal of the writ for an electoral district if the Chief Electoral Officer advises that it would be impractical to conduct an election because of a flood, fire, or other disaster. The new polling day must be within three months after the issue of the new writ (s. 59).

[135] Canada Elections Act, S.C. 2000, c. 9, ss. 57(1.2)(a) and 58.

[136] Canada Elections Act, S.C. 2000, c. 9, ss. 57(1.2)(b) and (c) and 57(2)(c).

[137] Canada Elections Act, S.C. 2000, c. 9, s. 57(2).

[138] Canada Elections Act, S.C. 2000, c. 9, s. 24(2).

[139] Canada Elections Act, S.C. 2000, c. 9, s. 24(1). Each year between January 1 and January 20, the Chief Electoral Officer publishes in the Canada Gazette the name of the returning officer for each electoral district in Canada (s. 25). See also S.C. 2006, c. 9, ss. 174 and 175. Prior to 2007, returning officers were appointed by Governor in Council.

[140] Canada Elections Act, S.C. 2000, c. 9, ss. 535.2 and 536. See, for example, Journals, February 6, 2007, p. 965.

[141] Canada Elections Act, S.C. 2000, c. 9, s. 24(1.3). The appointment may be terminated if the electoral district changes as a result of redistribution, if the returning officer moves outside the riding or resigns, or is removed by cause by the Chief Electoral Officer (s. 24(4) and (7)). For further information on the qualifications and appointment of returning officers, see section 24(1.1) to (1.5).

[142] Canada Elections Act, S.C. 2000, c. 9, s. 57(1.2)(c). Since 1996, general elections have not gone beyond the minimum 36 days, with the exception of the 39th general election which lasted 55 days as it included the December holiday period.

[143] Canada Elections Act, S.C. 2000, c. 9, s. 62.

[144] Canada Elections Act, S.C. 2000, c. 9, ss. 69 and 70.

[145] Canada Elections Act, S.C. 2000, c. 9, ss. 66 and 67.

[146] Canada Elections Act, S.C. 2000, c. 9, s. 74.

[147] Canada Elections Act, S.C. 2000, c. 9, s. 63.

[148] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 28(1). See, for example, Journals, October 16, 2007, pp. 1-2; April 7, 2008, pp. 654-5. In the absence of the Speaker, any two Members may address the warrant to the Chief Electoral Officer (see s. 28(2)). See also the section in this chapter entitled “Vacancies in Representation”.

[149] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 31(1).

[150] Canada Elections Act, S.C. 2000, c. 9, s. 57(1.1) and (1.2).

[151] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 31(3). The Chief Electoral Officer publishes the notice of the withdrawal of the writ and the cancellation of the election in the Canada Gazette (Canada Elections Act, S.C. 2000, c. 9, s. 551). See, for example, Canada Gazette, Part I, Vol. 142, Extra, September 8, 2008.

[152] Canada Elections Act, S.C. 2000, c. 9, s. 283.

[153] Canada Elections Act, S.C. 2000, c. 9, ss. 288 and 293.

[154] Canada Elections Act, S.C. 2000, c. 9, s. 62(c).

[155] Canada Elections Act, S.C. 2000, c. 9, s. 313(1). If the date set for the official addition of the votes is the day immediately following polling day, then the earliest the writs could be returned would be seven days following the general election.

[156] Canada Elections Act, S.C. 2000, c. 9, s. 314(1).

[157] Canada Elections Act, S.C. 2000, c. 9, s. 300(1). During the early years of Confederation, if a returning officer was unable to determine which of two or more candidates had been elected, each of the Members‑elect was entitled to be sworn in, but neither could sit in the House nor vote until the matter had been resolved. See Bourinot, Sir J.G., 4th ed., edited by T.B. Flint, Toronto: Canada Law Book Company, 1916, pp. 135‑40, where special and double returns are described. See also Journals, March 27, 1871, p. 152; April 19, 1872, p. 27; April 25, 1872, pp. 44‑6; May 13, 1872, p. 104; May 18, 1872, pp. 124‑5.

[158] Canada Elections Act, S.C. 2000, c. 9, s. 301(1) and (2).

[159] Canada Elections Act, S.C. 2000, c. 9, s. 301(4). Further information on the judicial recount process can be found on the Elections Canada Web site at www.elections.ca.

[160] Canada Elections Act, S.C. 2000, c. 9, s. 304.

[161] Canada Elections Act, S.C. 2000, c. 9, s. 308.

[162]Canada Elections Act, S.C. 2000, c. 9, s. 316(2).

[163] Canada Elections Act, S.C. 2000, c. 9, s. 318. See also Parliament of Canada Act, R.S. 1985, c. P-1, s. 29(1.1). If the Office of Speaker is vacant, the Chief Electoral Officer is required to advise two Members of the House or two duly‑elected candidates, as the case may be. Prior to 2000, the returning officer cast the deciding vote in the event of a tie after a judicial recount.

[164] Canada Elections Act, S.C. 2000, c. 9, s. 317(b).

[165] Canada Elections Act, S.C. 2000, c. 9, s. 533.

[166] Canada Elections Act, S.C. 2000, c. 9, s. 534. The report is submitted to the Speaker for tabling in the House (see, for example, Journals, October 21, 2004, p. 129; May 12, 2006, p. 169; March 28, 2007, p. 1169).

[167] See, for example, Journals, October 4, 2004, pp. 1-7; April 3, 2006, pp. 1‑7; November 18, 2008, pp. 1‑7. In 1988, Parliament met on December 12, 1988, three weeks after the general election of November 21, 1988, to deal with a bill to implement a free trade agreement between Canada and the United States. This was also the date set for the return of the writs. The list of Members elected and the accompanying certificate of the Chief Electoral Officer was not tabled until December 15, 1988, the fourth sitting day of the session (Journals, pp. 26‑33).

[168] Canada Elections Act, S.C. 2000, c. 9, s. 451.

[169] Canada Elections Act, S.C. 2000, c. 9, s. 463(2). See also the remarks of the Chair of the Standing Committee on Procedure and House Affairs with respect to the consequences of not filing election expenses returns on time (Evidence, Meeting No. 5, October 26, 2004).

[170] Canada Elections Act, S.C. 2000, c. 9, s. 524(1). See also section 65 for a list of disqualifications.

[171] Journals, November 21, 1867, pp. 26‑7; May 4, 1869, p. 57; March 1, 1871, p. 39; October 27, 1873, pp. 120‑1.

[172] For a historical perspective on contested elections, see Bourinot, 1st ed., pp. 117‑23, and Ward, N., “Electoral Corruption and Controverted Elections”, The Canadian Journal of Economics and Political Science, Vol. 15, No. 1, February 1949, pp. 74‑86.

[173] Controverted Elections Act, S.C. 1873, c. 28. The following year a new law was passed establishing the provincial supreme courts as election courts (Dominion Controverted Elections Act, 1874, S.C. 1874, c. 10). See also Dominion Controverted Elections Act, R.S. 1985, c. C‑39.

[174] Patrick Boyer notes in Election Law in Canada: The Law and Procedure of Federal, Provincial and Territorial Elections (Vol. 2, Toronto and Vancouver: Butterworths, 1987, p. 1067): “The offences which have traditionally given rise to election petitions—bribery, treating, conveying voters to the poll and the like—have been on the statute books for quite some time, and those in the election process have generally become aware of the tolerable levels for campaign activities and the limits of the law in this regard”.

[175] In 1949: Annapolis–Kings, Nova Scotia (Journals, March 6, 1950, pp. 68‑84); in 1957: Yukon (Journals, October 23, 1957, pp. 37‑44); in 1962: St. John’s West, Newfoundland (Journals, November 8, 1962, pp. 231‑46); in 1968: Comox–Alberni, British Columbia (Journals, February 14, 1969, pp. 701‑6); in 1988: York North, Ontario (Journals, June 7, 1990, pp. 1850‑1). In the latter case, the Progressive Conservative candidate, Michael O’Brien, had initially been declared the winner in the riding of York North in the 1988 federal election. Three days later, as a result of a recount, the Liberal candidate, Maurizio Bevilacqua, was declared the winner. Mr. O’Brien sought a judicial recount, was declared the winner by 99 votes, was sworn in, and participated in the Canada‑U.S. free‑trade agreement debate in the short‑lived First Session of the Thirty‑Fourth Parliament. Mr. Bevilacqua appealed the recount and was subsequently declared the sitting Member by 77 votes (Journals, April 3, 1989, pp. 2‑3). Mr. O’Brien then filed an election petition. Two Ontario Supreme Court judges found that the number of irregularly cast ballots in the 1988 election had exceeded Mr. Bevilacqua’s 77‑vote plurality over Mr. O’Brien. The election was subsequently voided. In a by‑election held December 10, 1990, Mr. Bevilacqua was declared the winner.

[176] In 1998, the Standing Committee on Procedure and House Affairs recommended that the Dominion Controverted Elections Act be repealed and its provisions incorporated into the Canada Elections Act (Thirty‑Fifth Report of the Standing Committee on Procedure and House Affairs, presented on June 18, 1998 (Journals, September 21, 1998, p. 1039)). The recommendation was also made in the Report of the Chief Electoral Officer of Canada entitled “Canada’s Electoral System—Strengthening the Foundation”, tabled in the House by the Speaker on February 29, 1996 (Journals, p. 17).

[177] Canada Elections Act, S.C. 2000, c. 9, ss. 524 and 525.

[178] Canada Elections Act, S.C. 2000, c. 9, s. 527. The Parliament of Canada Act provides that a Member, who has been declared elected, may not resign his or her seat while his or her election is being contested (R.S. 1985, c. P-1, s. 27(2)).

[179] Canada Elections Act, S.C. 2000, c. 9, s. 531(2). Two applications were brought before the Saskatchewan Court of the Queen’s Bench following the 38th general election. There being no evidence to support the claims of irregularities, the applications were eventually withdrawn by the applicants (see page 89 of the Report of the Chief Electoral Officer of Canada on the 38th General Election held on June 28, 2004, tabled in the House by the Speaker on October 21, 2004 (Journals, p. 129)).

[180] Canada Elections Act, S.C. 2000, c. 9, s. 531(3).

[181] Canada Elections Act, S.C. 2000, c. 9, s. 531(4).

[182] Canada Elections Act, S.C. 2000, c. 9, s. 532(1) and (2).

[183] Canada Elections Act, S.C. 2000, c. 9, s. 532(3) and (4).

[184] Parliament of Canada Act, R.S. 1985, c. P-1, s. 28(1).

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The Chief Electoral Officer is an Officer of Parliament appointed by resolution of the House of Commons. As head of Elections Canada, an independent, non‑partisan agency, he or she is responsible for the administration of federal elections and referendums, and the registration of political entities and electors. This Officer also provides support to the independent electoral boundaries commissions which carry out the periodic readjustment of electoral boundaries.

The position of Chief Electoral Officer was created in 1920 with the adoption of the Dominion Elections Act.[185] The position was created largely to prevent political partisanship in the administration of elections (prior to 1920, election officials were appointed by the government of the day). The first incumbent of the position was specifically named in the Act: Oliver Mowat Biggar held the position of Chief Electoral Officer until 1927.[186] In 1927, when Mr. Biggar announced his intention to vacate the office, the Act was amended to remove any reference to a specific office holder and to establish that the Chief Electoral Officer would be appointed by resolution of the House rather than by the government of the day.[187] Since that time, the position has been independent of the government and political parties, with the incumbent reporting directly to the House of Commons. The Chief Electoral Officer communicates with the Governor in Council through a member of the Queen’s Privy Council designated by Governor in Council for that purpose.[188]

There have been six incumbents of this office.[189] With the exception of Mr. Biggar who was appointed by statute, all the incumbents have been chosen by way of a resolution of the House after consultations among the various parties in the House.[190] A motion setting out the appointment was moved by the Prime Minister in 1927 and 1949, after written notice appeared on the Order Paper.[191] A motion was moved by unanimous consent on behalf of the Prime Minister in 1966[192] and by the Minister of Justice and Attorney General in 1990.[193] In all four cases, the motion was debated only briefly and agreed to by all parties. In 2007, in accordance with new House rules, the name of the proposed appointee was referred to the Standing Committee on Procedure and House Affairs for consideration. After the Committee reported back to the House favourably on the nomination, the Government House Leader moved that the appointment be ratified by the House the same day. The motion was adopted without debate or amendment.[194]

The Chief Electoral Officer’s appointment is without term. He or she serves until the age of 65, unless he or she retires, resigns or is removed for cause by the Governor General following a joint address of the House of Commons and Senate.[195]

*   Responsibilities

The Chief Electoral Officer has the rank and power of a deputy head of a government department.[196] While the original focus of the job was the general direction and supervision of federal elections, today the Chief Electoral Officer also administers federal referendums,[197] provides support to commissions established to study the readjustment of electoral boundaries,[198] monitors election spending by candidates and political parties, examines and discloses their financial reports and reimburses their expenses.[199] The Chief Electoral Officer is also responsible for the registration of political entities and the establishment and maintenance of an automated register of Canadians who are qualified electors.[200] In addition, the Chief Electoral Officer oversees the work of the Commissioner of Canada Elections who ensures that all provisions of the Canada Elections Act and Referendum Act are complied with and enforced,[201] as well as that of the Broadcasting Arbitrator who allocates paid and free broadcasting time for political parties during a general election and for referendum committees during a referendum.[202] Finally, the Chief Electoral Officer implements public education and information programs on the electoral process and is empowered to undertake studies on electronic or alternate voting processes.[203]

The Chief Electoral Officer chairs an advisory committee composed of representatives of registered political parties and Elections Canada officials. The advisory committee is a forum for sharing information, fostering good working relationships and resolving administrative issues that do not require legislative change but that may have an impact on parties and candidates.

Responsibilities at Time of a General Election or a By-election

The Chief Electoral Officer supervises and directs the conduct of federal elections and by‑elections when vacancies occur in the House.[204] As soon as the election date is known, the Chief Electoral Officer issues a writ of election to each returning officer who is responsible for conducting the election within the electoral district.[205] The Chief Electoral Officer directs each returning officer to hire staff and prepare for an election. The Chief Electoral Officer also provides each returning officer with a preliminary list of electors for each polling division in the electoral district and publishes the number of names appearing in the revised list of electors for each district in the Canada Gazette seven days before polling day.[206]

Following polling day, when the Chief Electoral Officer receives the return of the writ of election of a Member from a returning officer, he or she enters it in a book kept for that purpose and immediately gives notice of the name of the candidate elected in either an ordinary or special issue of the Canada Gazette.[207] Furthermore, the Chief Electoral Officer sends the Clerk of the House the certificates of election for Members as they become available. The Chief Electoral Officer also provides the Clerk with a final certified list of Members elected to the House of Commons; the list is tabled in the House at the beginning of a Parliament.[208]

Within 90 days of the date set for the return of the writs, the Chief Electoral Officer prepares a narrative report to Parliament containing information on the conduct of the election.[209] The report is submitted to the Speaker of the House who tables it in the House.[210] The Chief Electoral Officer prepares a similar report within 90 days of the end of the calendar year covering all by-elections held during the previous year.[211]

The Chief Electoral Officer retains for at least one year all election documents and the returned writs; if an election has been contested, the documents are kept for one year following the resolution of the contestation.[212]

After each general election, the Chief Electoral Officer also prepares and publishes a report of official voting results. This report contains, poll by poll, the number of votes cast for each candidate, the number of rejected ballots and the number of names on the final list of electors together with any other relevant information.[213] A similar report is prepared for a by‑election within 90 days of the return of the writ.

As soon as possible after a general election, the Chief Electoral Officer may also prepare a report for transmittal to the Speaker, recommending amendments to the Canada Elections Act that he or she believes are warranted.[214]

Relationship with Members

The Chief Electoral Officer provides advice and assistance to the Standing Committee on Procedure and House Affairs, which is responsible for reviewing and reporting on matters relating to the election of Members.[215] The Chief Electoral Officer and his staff provide the Committee with technical assistance and, at the Committee’s request, assist in the drafting of amendments to the Canada Elections Act[216] and the Electoral Boundaries Readjustment Act.[217] The Chief Electoral Officer also appears before the Committee at its invitation to discuss the main estimates of Elections Canada[218] and the reports on general elections.[219]

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[185] S.C. 1920, c. 46, ss. 18 and 19. Prior to 1920, the Dominion Elections Act, 1874 (S.C. 1874, c. 9, ss. 64 to 67) assigned to the Clerk of the Crown in Chancery some of the duties now carried out by the Chief Electoral Officer. The Clerk of the Crown in Chancery was always present at the Table of the House of Commons at the commencement of a new Parliament to hand to the Clerk of the House the roll or return book containing the list of Members elected. He issued writs for elections, submitted certificates to the House of the return of Members and performed other functions relating to elections. For further information on the role of the Clerk of the Crown in Chancery, see Bourinot, 4th ed., pp. 188‑9.

[186] Dominion Elections Act, S.C. 1920, c. 46, s. 19.

[187] An Act to amend the Dominion Elections Act, S.C. 1927, c. 53, s. 1. See also Canada Elections Act, S.C. 2000, c. 9, s. 13(1). The Senate plays no role in the appointment.

[188] Canada Elections Act, S.C. 2000, c. 9, s. 15(4). The designated Minister is currently the Government House Leader.

[189] Oliver Mowat Biggar (1920‑27), Jules Castonguay (1927‑49), Nelson J. Castonguay (1949‑66), Jean‑Marc Hamel (1966‑90), Jean‑Pierre Kingsley (1990‑2007), and Marc Mayrand (2007 to present).

[190] Debates, April 12, 1927, pp. 2313‑5; April 14, 1927, p. 2499; October 4, 1949, pp. 489‑91; June 6, 1966, pp. 6049‑51; February 16, 1990, pp. 8453‑6; February 21, 2007, p. 7134.

[191] Journals, April 14, 1927, p. 560; October 4, 1949, p. 61.

[192] Journals, June 6, 1966, p. 615.

[193] Journals, February 16, 1990, p. 1234.

[194] Journals, February 9, 2007, p. 987; February 21, 2007, pp. 1042-3. The government motion was seconded by representatives of the three opposition parties (Debates, February 21, 2007, p. 7134). Pursuant to Standing Order 111.1, whenever the government intends to appoint an Officer of Parliament, the name of the proposed appointee is deemed referred to the appropriate committee and the committee may consider the appointment if it so chooses. Not later than 30 days following the tabling of the biographical notes, the government places a motion to ratify the appointment on the Notice Paper under Routine Proceedings, whether the committee has reported back to the House or not. In 2007, the ratification motion was placed on notice by the Government House Leader the same day that the nominee’s biographical notes were referred to the Standing Committee on Procedure and House Affairs (Order Paper and Notice Paper, February 12, 2007, p. III). The nominee appeared before the Committee on February 20, 2007 to answer questions (Standing Committee on Procedure and House Affairs, Minutes of Proceedings, February 20, 2007).

[195] Canada Elections Act, S.C. 2000, c. 9, s. 13. In the event of the death, incapacity or negligence of the Chief Electoral Officer when Parliament is not sitting, a substitute may be appointed by the Chief Justice of Canada. The appointment is effective until 15 days after the beginning of the next session of Parliament (s. 14(1) and (2)).

[196] Canada Elections Act, S.C. 2000, c. 9, s. 15(1). His or her salary is equivalent to that of a judge of the Federal Court (s. 15(2)).

[197] Referendum Act, S.C. 1992, c. 30.

[198] Electoral Boundaries Readjustment Act, R.S. 1985, c. E-3.

[199] Canada Elections Act, S.C. 2000, c. 9, Part 18.

[200] Canada Elections Act, S.C. 2000, c. 9, ss. 44(1) and 366. The Chief Electoral Officer also maintains a registry of political parties (s. 374).

[201] Canada Elections Act, S.C. 2000, c. 9, s. 509. The Commissioner is appointed by the Chief Electoral Officer.

[202] Canada Elections Act, S.C. 2000, c. 9, s. 332. The Arbitrator is appointed by the Chief Electoral Officer after consultations with representatives of registered political parties.

[203] Canada Elections Act, S.C. 2000, c. 9, ss. 18 and 18.1.

[204] Canada Elections Act, S.C. 2000, c. 9, s. 16.

[205] Canada Elections Act, S.C. 2000, c. 9, ss. 24(2) and 58. See also ss. 112 to 115.

[206] Canada Elections Act, S.C. 2000, c. 9, ss. 93(1) and 105(2). The number of names appearing on the preliminary list of electors is also published in the Canada Gazette.

[207] Canada Elections Act, S.C. 2000, c. 9, s. 317.

[208] See, for example, Journals, April 3, 2006, pp. 1-7.

[209] Canada Elections Act, S.C. 2000, c. 9, s. 534(1).

[210] Canada Elections Act, S.C. 2000, c. 9, s. 536. See, for example, Journals, March 19, 2001, p. 186; October 21, 2004, p. 129; May 12, 2006, p. 169. The report is then referred permanently to the Standing Committee on Procedure and House Affairs (Standing Orders 32(5) and 108(3)(a)(vi)).

[211] Canada Elections Act, S.C. 2000, c. 9, s. 534(2). See, for example, Journals, March 28, 2007, p. 1169.

[212] Canada Elections Act, S.C. 2000, c. 9, s. 540(1).

[213] Canada Elections Act, S.C. 2000, c. 9, s. 533. This report can be found on the Elections Canada Web site at www.elections.ca.

[214] Canada Elections Act, S.C. 2000, c. 9, s. 535. See, for example, Report of the Chief Electoral Officer of Canada following the 37th General Election entitled “Modernizing the Electoral Process”, tabled in the House by the Speaker on November 27, 2001 (Journals, p. 855); Report of the Chief Electoral Officer of Canada following the 38th General Election entitled “Completing the Cycle of Electoral Reforms”, tabled in the House by the Speaker on September 29, 2005 (Journals, p. 1061). See also the Thirteenth Report of the Standing Committee on Procedure and House Affairs, presented to the House on June 22, 2006 (Journals, pp. 344-5) and the government response tabled on October 20, 2006 (Journals, p. 558).

[215] Standing Order 108(3)(a)(vi). See, for example, Standing Committee on Procedure and House Affairs, Minutes of Proceedings, April 27, 2006, Meeting No. 3; September 13, 2007, Meeting No. 63.

[216] See, for example, Standing Committee on Procedure and House Affairs, Minutes of Proceedings and Evidence, October 3, 1995, Issue No. 52, pp. 30‑1; Minutes of Proceedings, November 15, 2007, Meeting No. 4; December 4, 2007, Meeting No. 9.

[217] See, for example, Standing Committee on Procedure and House Affairs, Minutes of Proceedings and Evidence, March 24, 1994, Issue No. 6, pp. 7‑8; June 7, 1994, Issue No. 15, pp. 5‑6.

[218] See, for example, Standing Committee on Procedure and House Affairs, Minutes of Proceedings and Evidence, May 9, 1995, Issue No. 50, pp. 4‑5; Minutes of Proceedings, April 28, 1998, Meeting No. 22; May 5, 2005, Meeting No. 33; April 29, 2007, Meeting No. 46.

[219] See, for example, Standing Committee on Procedure and House Affairs, Minutes of Proceedings, November 20, 1997, Meeting No. 6; February 26, 1998, Meeting No. 14; October 26, 2004, Meeting No. 5; November 23, 2004, Meeting No. 10.

Move Up

 

Before taking their seats and voting in the House of Commons, duly-elected Members must take an oath or make a solemn affirmation of allegiance or loyalty to the Sovereign and sign the Test Roll (a book whose pages are headed by the text of the oath or affirmation). When Members swear or solemnly affirm allegiance to the Queen as Sovereign of Canada, they are also swearing or solemnly affirming allegiance to the institutions the Queen represents, including the concept of democracy. Thus, Members are making a pledge to conduct themselves in the best interests of the country. The oath or solemn affirmation reminds Members of the serious obligations and responsibilities they are assuming.

The obligation requiring all Members of Parliament to take the oath is found in the Constitution Act, 1867, with the text of the oath itself outlined in the Fifth Schedule.[220] The Act states: “Every Member of the … 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 wording of the oath is as follows: “I, (Member’s name), do swear, that I will be faithful and bear true Allegiance to Her Majesty Queen Elizabeth the Second”.[221] As an alternative to swearing the oath, Members may make a solemn affirmation, by simply stating:[222] “I, (Member’s name), do solemnly, sincerely, and truly declare and affirm that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second”.

*   Historical Perspective

Great Britain

During the Middle Ages, there was no legal requirement for the taking of oaths of allegiance in the British Parliament.[223] The taking of an oath by a Member of Parliament as a legal prerequisite first arose as a result of the political and religious conflicts in Great Britain in the sixteenth century, in particular the breach with Rome and the struggle between Protestants and Catholics for power. The first oath was imposed upon Members in 1563 following the adoption of the Act of Supremacy during the reign of Queen Elizabeth I. The Act of Supremacy appointed the Sovereign the head of the Church: before taking their seat in the House of Commons, Members of Parliament were required to testify to their belief that the Sovereign was the only supreme governor of the realm, in both ecclesiastical and temporal matters.[224] Indeed, the oath of supremacy was primarily directed at preventing Roman Catholics from holding public office. To this was added, in 1678, a declaration against transubstantiation which, with the oath of supremacy, effectively barred Roman Catholics from Parliament.[225]

In 1701, Jacobites, supporters of James II, attempted to restore Catholicism in England. In an effort to strengthen Protestantism, English authorities responded by devising three oaths of state designed to exclude Catholics and Jacobites from public office. In addition to taking the declaration against transubstantiation, Members had to swear an oath of allegiance to the King of England; an oath of supremacy, denouncing Catholicism and papal authority; and an oath of abjuration, repudiating all rights of James II and his descendants to the English throne.[226] The oath of abjuration also included the words “on the true faith of a Christian”, which prevented Jews from taking the oath.[227]

More than one hundred years later, the British Parliament passed the Roman Catholic Relief Act of 1829, which abolished the declaration against transubstantiation and provided a special form of oath acceptable to members of the Roman Catholic Church. In 1858, the oaths of supremacy, allegiance and abjuration were replaced by a single oath for Protestants, and later the same year the British Parliament passed another law allowing Jews to be admitted as Members of Parliament.[228] By 1866, the British Parliament had established a single oath for Members of all religious beliefs and, by 1888, it permitted those objecting to the taking of the oath on religious grounds to make a solemn affirmation.[229]

Canada

The requirement that Members of the House of Commons take an oath of allegiance before assuming their seats in the Chamber stems from British practice; however, the oath taken in the Canadian colonies was a very different one from the anti‑papal oath taken by Members in the British House of Commons.

In 1758, the first election for a popular assembly was held in Nova Scotia. In keeping with penal and electoral laws then in force in England, Catholics and Jews were not allowed to vote or seek election. Members were required to swear three oaths of state: the oath of allegiance to the King, the oath of supremacy denouncing Catholicism and papal authority, and the oath of abjuration, repudiating all rights of James II and his descendants to the English Throne.[230] The House of Assembly abolished religious discrimination in voter eligibility criteria in 1789, thus enabling Catholics and Jews to vote.[231] Nonetheless, Catholics were not permitted to sit in the Assembly without first taking the declaration against transubstantiation; Jews were also barred from sitting in the Assembly because of the oath of abjuration. In 1823, the Nova Scotia Assembly adopted a resolution which granted Catholics the right to take a seat in the Assembly without taking the declaration against transubstantiation; the state oaths still applied to non-Catholics.[232] In 1846, the state oath was abolished in Nova Scotia.[233]

In 1780, the Legislative Assembly of Prince Edward Island, the only other colony with representative government at that time, restricted the franchise to Protestants.[234] It was not until 1830 that Catholics received the right to vote and seek office.[235] In 1846, when the state oaths were replaced with a single oath of allegiance, Jews were allowed to seek office.[236]

New Brunswick was established as a colony in 1784 and the first election was held in 1785. Although all white males over the age of 21 who agreed to take an oath of allegiance were allowed to vote in the first election, the votes of Catholics were disallowed the following year when the Assembly resolved that voting by Catholics was illegal and contrary to the laws in England. When the colony passed its first electoral laws in 1791, Catholics and Jews were denied the vote and thus the right to seek election to the Assembly because voters had to agree to take the state oaths. In 1810, Catholics and Jews received the right to vote when the requirement to take the mandatory oaths before voting were replaced with a simple oath of allegiance. However, it was only in 1846 when the state oaths were abolished as a prerequisite for sitting in the Assembly that Jews could seek election.[237]

In 1763 when the Province of Quebec was established, the Governor was instructed to summon an assembly as soon as conditions in the province permitted and the persons elected were required to take the oath of allegiance, the oath of supremacy and the declaration against transubstantiation. The province remained, however, without a representative assembly.[238] Passed by the British Parliament, the Quebec Act, 1774 provided, among other matters, that Roman Catholics no longer had to take the oath of supremacy, substituting an oath of allegiance, should they wish to assume public office.[239] The oath of abjuration still prevented Jews from assuming public office. The Constitutional Act, 1791 divided the original province of Quebec into two provinces—Lower Canada and Upper Canada. Each was provided with a Legislative Council and an elected Assembly; Members had to swear an oath of allegiance to the King before sitting in either the Legislative Council or Assembly.[240] Jews were still effectively barred taking a seat because of the requirement to swear an oath of allegiance on the New Testament.[241] In 1832, Lower Canada passed a law which gave Jews the same rights and privileges as other citizens, the first jurisdiction in the British Empire to do so.[242] When the United Province of Canada was established, the provisions of the Constitutional Act, 1791 regarding the oath of allegiance were carried over into the Union Act, 1840.[243] At Confederation, the requirement for members of the Senate, House of Commons and provincial legislative assemblies to swear an oath of allegiance was included in the Constitution Act, 1867.

While provisions for a solemn affirmation existed in the Province of United Canada pursuant to the Union Act, 1840[244] and were later duplicated in section 5 of the Oaths of Allegiance Act[245] passed in 1867, these provisions did not apply to members of the Senate and the House of Commons. Members of Parliament were not permitted to make a solemn affirmation until 1905 when the Governor General was “authorized to administer the oath of allegiance or affirmation to persons who shall hold places of trust in Canada in the form provided by an Act passed in the thirty‑first and thirty‑second years of the Reign of Queen Victoria intituled: 'An Act to amend the law in relation to Promissory Notes'”.[246]

*   Swearing-in Process

Following a general election, the Chief Electoral Officer sends the Clerk of the House certificates of election for Members of the House as they become available. Once the Clerk receives a certificate of election, the process of administering the oath of allegiance to those Members listed on it commences.[247]

Pursuant to section 128 of the Constitution Act, 1867, the Governor General “or some person authorized by him” may administer the oath of allegiance. Commissioners for this purpose are appointed through Orders in Council. Until August 1949, this was accomplished by naming specific persons to hold this commission but since that time, the appointment has been made by virtue of office, thus avoiding the need to repeat the Order in Council. The offices of Clerk of the House of Commons, Deputy Clerk, Clerk Assistant, Law Clerk and Parliamentary Counsel, and Sergeant‑at‑Arms have been given this authority, although this function is normally carried out by the Clerk.[248]

The swearing‑in procedure followed by the House is not governed by rules but has always been defined by practice and precedent. Traditionally, Members have been sworn in on an individual, rather than collective, basis.[249] The Clerk of the House invites each Member to make an appointment to be sworn in and sign the Test Roll, a book whose pages are headed by the text of the oath or affirmation, prior to the opening day of the new Parliament. The Test Roll is signed by the Member in witness to his or her having taken the oath of allegiance as required by the Constitution Act, 1867 or made the solemn affirmation. The Test Roll is signed immediately after the oath or affirmation has been taken.[250] After the swearing-in ceremony, photographs are taken and Members receive procedural texts and a distinctive lapel pin.[251]

Most Members take the oath either in the office of the Clerk or in another room in the Parliamentary Precinct designated for the ceremony. Members may invite guests to attend the short private ceremony and arrange for photographs to be taken. Members who have not been sworn in prior to the opening day of a new Parliament may do so on the opening day itself. This ceremony is performed in the Commons Chamber at the Clerk’s Table prior to the time designated for all the Members to assemble for the opening of Parliament. On this occasion, guests are not invited nor are photographs taken. After the first day of a new Parliament, the swearing‑in ceremony takes place in the Clerk’s office. Following by‑elections, new Members take the oath and sign the Test Roll in the office of the Clerk.

If a Member fails or refuses to swear the oath of allegiance or make a solemn affirmation, the Member may not be allowed to take his or her seat in the Chamber and may be deprived of his or her sessional allowance.[252] Thus, it is the taking of the oath or affirmation which enables a Member to take his or her seat in the House and to vote.[253]

*   Breach of the Oath of Allegiance

Breaking the oath of allegiance is a serious offence and any Member whose conduct has been determined by the House to have violated the oath could be liable to punishment by the House.[254] Although there have been no cases of a Member having been found guilty of breaching the oath of allegiance, the Speaker was asked in 1990 to rule on the sincerity of a Member’s solemn affirmation.[255] Speaker Fraser ruled that the Chair was “not empowered to make a judgement on the circumstances or the sincerity with which a duly‑elected Member takes the oath of allegiance. The significance of the oath to each Member is a matter of conscience and so it must remain”. Since the Member stated very clearly in the House that he had “never mocked the Canadian Parliament nor the Queen”, the Speaker concluded that, in keeping with convention that the House accepts as true the word of the Member, there was no breach of privilege. He did note, however, that “only the House can examine the conduct of its Members and only the House can take action if it decides action is required”.[256] No further action was taken.



[220] R.S. 1985, Appendix II, No. 5, s. 128.

[221] Constitution Act, 1867, R.S. 1985, Appendix II, No. 5, Fifth Schedule. Found below the Fifth Schedule is a note which reads as follows: “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”.

[222] Affirmation is not mentioned in the Constitution. See Beauchesne, A., Rules and Forms of the House of Commons of Canada, 4th ed., Toronto: The Carswell Company Limited, 1958, pp. 13‑4.

[223] Perceval, R.W. and Hayter, P.D.G., “The Oath of Allegiance”, The Table, Vol. XXXIII, 1964, pp. 85‑90. The authors state that the oath of allegiance taken by barons during the Middle Ages is not historically connected to the oath of allegiance now required before Members may take their seats in the Commons.

[224] Redlich, J., The Procedure of the House of Commons: A Study of its History and Present Form, Vol. II, translated by A.E. Steinthal, New York: AMS Press, 1969 (reprint of 1908 ed.), p. 62.

[225] Redlich, Vol. II, p. 63. Transubstantiation, according to the Roman Catholic church, is the conversion in the Eucharist of the whole substance of the bread into the body and of the wine into the blood of Christ, with only the appearance of bread and wine remaining. See Browning, A. (ed.), English Historical Documents 1660‑1714, London: Eyre & Spottiswoode, 1953, pp. 391‑4.

[226] A History of the Vote in Canada, 2nd ed., p. 6. See May, T.E., A Treatise Upon the Law, Privileges, Proceedings and Usage of Parliament, South Hackensack, New Jersey: Rothman Reprints Inc., 1971 (reprint of 1st ed., 1844), pp. 461‑3, for the wording of the three oaths.

[227] Wilding, N. and Laundy, P., An Encyclopaedia of Parliament, 4th ed., London: Cassell & Company Ltd., 1972, p. 503.

[228] Redlich, Vol. II, p. 63. Twenty‑seven years earlier, in 1831, the Legislative Assembly of Lower Canada had passed a bill allowing Jews who were natural‑born British subjects the right to seek public office and the following year, the legislation was approved by the British Parliament. See O’Brien, G., “Pre-Confederation Parliamentary Procedure: The Evolution of Legislative Practice in the Lower Houses of Central Canada, 1792-1866”, Ph.D. thesis, Carleton University, 1988, pp. 139‑42.

[229] Redlich, Vol. II, pp. 63‑4. According to Wilding and Laundy (4th ed., pp. 10‑1, 53‑4), the right to make an affirmation was given by the Promissory Oaths Act, 1868. However, there were some objections when a new Member, Charles Bradlaugh, an atheist, attempted to affirm instead of taking an oath on the Bible. The Member was excluded from the House and unseated. On three separate occasions, he was re‑elected to the House and subsequently excluded when he attempted to affirm. On the fifth occasion in 1886, the Speaker would not listen to any objections when the Member took the oath in the ordinary form. In 1888, the Member succeeded in having the Oaths Act adopted.

[230] Garner, J., The Franchise and Politics in British North America 1755‑1867, Toronto: University of Toronto Press, 1969, pp. 131‑2. Jews experienced exclusion indirectly because they refused to take the oath in the name of the Christian faith.

[231] A History of the Vote in Canada, 2nd ed., pp. 9, 11.

[232] Garner, pp. 141‑3. See also Beck, J.M., The Government of Nova Scotia, Toronto: University of Toronto Press, 1957, pp. 51‑2. See also Province of Nova Scotia, House of Assembly, Journal and Proceedings of the House of Assembly of Nova Scotia, April 3, 1823, pp. 292‑3.

[233] Garner, p. 148.

[234] Garner, p. 132.

[235] Garner, pp. 138-40.

[236] Garner, p. 148.

[237] A History of the Vote in Canada, 2nd ed., pp. 15-8; Garner, pp. 136-8.

[238] Bourinot, 4th ed., pp. 2-3.

[239] R.S. 1985, Appendix II, No. 2, s. 7. The Act made no provision for an elected assembly; government was entrusted to a governor and a legislative council, both appointed by the Crown. See also Garner, p. 133. Protestants were still required to take the state oaths and the declaration against transubstantiation.

[240] R.S. 1985, Appendix II, No. 3, s. 29.

[241] In 1807, Ezekiel Hart became the first Jew elected to a Canadian legislature but he was not allowed to take his seat in the Lower Canada Assembly because he swore the oath on the Book of Moses. He won a seat again for the electoral district of Trois-Rivières in a by-election in 1808 and took the oath on the New Testament in the same manner as other members. However, the Assembly adopted a motion declaring that members of the Jewish faith were not allowed to sit or vote in the House and he was expelled again. For further information on Ezekiel Hart, see Garner, pp. 148-50 and Dictionary of Canadian Biography Online on the Library and Archives Canada Web site at www.biographi.ca.

[242] An Act to declare persons professing the Jewish Religion entitled to all the rights and privileges of the other subjects of His Majesty in this province, Statutes of Lower Canada, 1832, c. 57.

[243] R.S. 1985, Appendix II, No. 4, s. 35.

[244] R.S. 1985, Appendix II, No. 4, s. 36.

[245] S.C. 1867‑68, c. 36. Section 3 of the Act specified that the form of the oath described in the Act did not supersede the oath described in the Constitution Act, 1867 for Members of Parliament. Section 5 further clarified that the affirmation could be made in lieu of the oath in civil cases. No mention is made of the solemn affirmation for Members of Parliament. See also Oaths of Allegiance Act, R.S. 1985, c. O‑1.

[246] Beauchesne, 4th ed., p. 13. See also Instructions to the Governor General dated June 15, 1905, as found in S.C. 1907, pp. lviii-lx.

[247] When the House meets for the first time for the dispatch of business, the Clerk lays upon the Table a final list of duly‑elected Members certified by the Chief Electoral Officer. The certificate and list are published in the Journals (see, for example, Journals, April 3, 2006, pp. 1‑7). On one occasion, because Parliament was summoned to meet only three weeks after the general election, the list of elected Members was not tabled until the fourth sitting day (Journals, December 15, 1988, pp. 26‑33). Prior to 1888, Members were permitted to take the oath and their seats on production of the certificate of the returning officer in advance of the certificate of the Clerk of the Crown in Chancery, but this practice was discontinued owing to the risk of numerous legal difficulties (Bourinot, 4th ed., p. 149).

[248] The 1949 Order in Council authorized the Clerk of the House, the Clerk Assistant and the Sergeant-at-Arms to administer the oath of allegiance. In 1988, an Order in Council added the positions of Deputy Clerk and Law Clerk and Parliamentary Counsel to the list of officials authorized to administer the oath. For the Thirty-Eighth Parliament (2004-05), the Clerk of the House of Commons, the Deputy Clerk, the Sergeant-at-Arms, the Law Clerk and Parliamentary Counsel, and a Clerk Assistant swore in the new Members (Journals, October 4, 2004, p. 1). For the Thirty-Ninth Parliament (2006-08), the Clerk of the House of Commons, the Deputy Clerk, the Law Clerk and Parliamentary Counsel, and a Clerk Assistant were so commissioned (Journals, April 3, 2006, p. 1). In 2008, the Clerk and the Deputy Clerk administered the oath to Members (Journals, November 18, 2008, p. 1).

[249] Following the 36th general election and prior to the opening of Parliament, three of the opposition parties (i.e., the Reform Party, the New Democratic Party (NDP) and the Progressive Conservative Party) opted to have a collective swearing‑in ceremony for their Members. Each ceremony took place in a committee room in the Centre Block. The leader of the party was sworn in first and then the Members recited the oath of allegiance or solemn declaration. Each Member was then invited by the Clerk to sign the Test Roll. The ceremonies were broadcast on the parliamentary channel. In 2008, following the 40th general election, the NDP caucus was sworn in one after another in a group ceremony. In June 1985, the Special Committee on the Reform of the House of Commons recommended that public awareness of the swearing‑in ceremony be increased by broadcasting the ceremony on national television in a similar fashion as is done for the swearing‑in of a new cabinet. Members would also be required to take the oath individually (Third Report of the Special Committee on the Reform of the House of Commons, presented to the House on June 18, 1985 (Journals, p. 839), pp. 57‑8). In its response to the Committee’s Report, the government suggested that the House refer this matter to the Board of Internal Economy for consideration and decision (Government Response to the Second and Third Reports of the Special Committee on the Reform of the House of Commons, tabled in the House on October 9, 1985 (Journals, p. 1082), p. 10). No subsequent action was taken at that time.

[250] Louis Riel was duly elected in the riding of Provencher, first in a by‑election in 1873 and then in the general election of 1874. While avoiding arrest, he travelled to Ottawa and succeeded in taking the oath of allegiance and signing the Test Roll before the Clerk noticed the signature on the Roll (Bosc, M., (ed.), The Broadview Book of Canadian Parliamentary Anecdotes, Peterborough, Ontario: Broadview Press Ltd., 1988, pp. 22‑3).

[251] Each pin has a unique number engraved on its underside. Circular in shape with the words “House of Commons/Chambre des communes” in relief around the border, the centre of the pin features a gold mace superimposed on a silver maple leaf. The pin was first presented to Members by Speaker Jerome in 1979.

[252] Beauchesne, 4th ed., p. 14. There do not appear to be any cases of Members refusing to take the oath of allegiance. In 1988, following the 34th general election, one Member‑elect, John Dahmer (Beaver River) was hospitalized. Arrangements were made to have the Deputy Clerk fly to his bedside to swear him in, but the Member‑elect died before the swearing‑in ceremony could take place.

[253] In 1875, the Speaker brought to the attention of the House that a Member who had been duly elected in a by‑election had sat and voted in the Chamber without having first taken and subscribed the oath of allegiance (Debates, February 22, 1875, p. 260). George Turner Orton (Wellington Centre) had first been elected in the general election and had been sworn in. Subsequently, his election was overturned. The Member explained that, because he had already sworn the oath, he did not realize he had to be sworn in again upon his re‑election (Bourinot, 4th ed., pp. 150‑1). The matter was referred to the Select Standing Committee on Privileges and Elections (Journals, February 25, 1875, p. 129). See also Debates, February 24, 1875, pp. 322‑3; February 25, 1875, pp. 324‑5. In its report presented to the House on March 8, 1875, the Committee noted that since neither the British North America Act 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 (Journals, March 8, 1875, p. 176). The report was never considered by the House.

[254] Beauchesne, 4th ed., p. 14. Beauchesne expounds further that, for example, if a Member, during a state of war, were to make a statement, either outside of the House or on the floor of the Chamber, that was damaging to Canada, but favourable to the enemy, the House as a whole could decide to suspend or even expel the Member. Indeed, the House did expel a Member in 1947 when he was found guilty of treason (Journals, January 30, 1947, pp. 4‑8). For further information, see the section in this chapter entitled “Expulsion”. See also Chapter 3, “Privileges and Immunities”.

[255] That year, a new political party, the Bloc Québécois, was founded and its first Member was elected in a by‑election. As required, Gilles Duceppe (Laurier–Sainte‑Marie) made a solemn affirmation and signed the Test Roll before taking his seat in the House; he also made another statement, similar to the oath required to be sworn by members of the Quebec National Assembly, outside the Chamber expressing his loyalty to the people of Quebec. Jesse Flis (Parkdale–High Park) rose on a question of privilege concerning the meaning of the oath of allegiance and the duties and obligations of Members relating thereto (Debates, October 3, 1990, pp. 13736‑42).

[256] Debates, November 1, 1990, pp. 14969‑70. Since 1990, private Members have introduced bills to require newly-elected Members to swear an oath of allegiance to Canada and the Constitution as well as swearing allegiance to the Queen (see, for example, Debates, October 16, 1990, p. 14189; September 18, 1991, p. 2320; February 12, 1993, p. 15850; January 20, 1994, p. 72; June 18, 1996, p. 3989; September 25, 1997, p. 57; October 7, 2002, p. 367; March 17, 2003, p. 4251). In 2003, one private Member’s bill (Bill C-408, An Act to amend the Parliament of Canada Act (oath or solemn affirmation)) was read a second time and referred to the Standing Committee on Procedure and House Affairs (Journals, May 13, 2003, pp. 777-8). The Committee’s consideration of the Bill was interrupted by a prorogation. Although the Bill was referred to the Committee again in the next session, it was not considered (Journals, February 2, 2004, pp. 2‑3).

Move Up

 

After a Member’s election certificate has been received by the Clerk of the House and he or she has sworn the oath of allegiance or made an affirmation and signed the Test Roll, the Member is ready to take his or her seat in the Chamber. Members, whether they be newly elected or not, are not formally introduced to the House at the opening of a new Parliament. Customarily, only Members elected to the House in by‑elections receive a formal introduction to the House.[257] The introduction of a Member is ceremonial[258] and a convention not mandated by any statute or Standing Order of the House of Commons.[259] The right of a Member to sit and vote in the House is in no way affected if an introduction does not take place.[260]

Introductions typically are done at the beginning of a sitting or before Question Period. When a Member is to be introduced, the Speaker begins by advising the House: “I have the honour to inform the House that the Clerk of the House has received from the Chief Electoral Officer a certificate of the election and return of (Member’s name), Member for the electoral riding of (Member’s riding)”. The Member, escorted by two Members of the House (normally the leader of the Member’s party and the senior party representative from his or her province), is then ushered from the Bar of the House up the centre aisle of the Chamber to the Table.[261] At this point, the party leader will state: “Mr. (Madam) Speaker, I have the honour to present to you (Member’s name), Member for the Electoral District of (Member’s riding), who has taken the oath (or made an affirmation), signed the Roll and now claims the right to take his (her) seat”. The Speaker directs: “Let the Member take his (her) seat”. The Member then approaches the Chair and exchanges greetings with the Speaker. The Member is directed, by the party whip, to his or her seat. If other Members are to be introduced during the same sitting, the process is repeated.[262] Customarily, if the Member being introduced is a party leader, he or she is escorted by two leading Members of the party and the House allows the other party leaders to offer some brief words of welcome.[263]



[257] Bourinot, 4th ed., pp. 149‑53. For examples of introductions, see Debates, February 22, 1995, p. 9941; April 21, 1998, p. 5901; June 6, 2005, p. 6657; December 12, 2006, p. 5982; March 31, 2008, p. 4242. In a departure from this tradition, a newly-elected Member from the Northwest Territories was formally introduced to the House on the fourth sitting day of the First Session of the Thirty‑Fourth Parliament. Because the House had come back quickly after a general election, the Member’s election return had not arrived at the Office of the Chief Electoral Officer in time for the opening (Debates, December 15, 1988, pp. 92‑3). In 1980, when the election return of another Member from the Northwest Territories was received late, the Member was not introduced in the House, although the notice of the election return was indicated in the Journals (April 18, 1980, p. 47). In 1989, on the opening day of the Second Session of the Thirty‑Fourth Parliament, the Speaker informed the House that the Clerk had received a substitute return of election. The Member was subsequently introduced in the House (Journals, April 3, 1989, pp. 2‑3, Debates, p. 1).

[258] This is a very old practice dating back to the seventeenth century in England (Hatsell, J., Precedents of Proceedings in the House of Commons, Vol. II, South Hackensack, New Jersey: Rothman Reprints Inc., 1971 (reprint of 4th ed., 1818), p. 85).

[259] Beauchesne, 4th ed., p. 17.

[260] In 1878, Speaker Anglin resigned his seat between sessions. He was re‑elected in a by‑election held before the new session began. When the new session opened, Mr. Anglin, along with several other Members, took the oath, signed the Roll and was in his seat for the election of the Speaker. When Prime Minister Alexander Mackenzie moved that Mr. Anglin be elected Speaker, the Leader of the Opposition, Sir John A. Macdonald, protested the validity of the proceeding, claiming that Mr. Anglin had not been introduced to the House and could not be introduced until a Speaker had been elected and, thus, Mr. Anglin was not a Member and could not be elected Speaker. Mr. Mackenzie contended that, contrary to British practice, the practice in Canada had been that once a Member had been sworn in and signed the Roll, he was entitled to enter the House and take his seat. This view prevailed and the motion to elect Mr. Anglin was adopted shortly thereafter (Debates, February 7, 1878, pp. 2‑12).

[261] In the case of an independent Member, Members of one of the opposition parties assume the ceremonial duties.

[262] The Members have either been introduced in alphabetical order (see, for example, Debates, April 15, 1996, p. 1461; May 21, 2002, pp. 11554-5; September 15, 2003, pp. 7330-1) or by party (see, for example, Debates, November 29, 1999, p. 1865; October 16, 2007, p. 1).

[263] See, for example, Debates, February 20, 1969, pp. 5741‑3; September 12, 1983, pp. 26984‑6; January 15, 1991, pp. 16981-3; September 19, 2000, pp. 8365-8 (two party leaders introduced the same day); May 21, 2002, pp. 11555-6.

Move Up

 

Members are allocated seats and desks in the House under the authority of the Speaker but on the advice of the Whips of the recognized parties (usually those parties with 12 or more Members[264]) following negotiations. In order to be recognized by the Speaker to participate in the business of the House and to vote in any recorded division, a Member must be in his or her designated seat.[265]

Members representing the governing party traditionally occupy those seats to the right of the Chair, with the Prime Minister and the other Ministers seated in the front rows. Private Members, otherwise known as backbenchers, representing the governing party are customarily seated according to their seniority or length of service in the House within their caucus. If the number of Members representing the governing party exceeds the number of desks on the right side, the overflow, or “rump”, of government Members occupies those seats across the aisle. This section may, at the discretion of the Speaker, be near the Chair or at the far end of the Chamber.[266]

Members who represent parties in opposition to the government are usually seated to the left of the Chair.[267] The Leader of the Official Opposition is seated immediately opposite the Prime Minister and is flanked by Members of his or her party. Other opposition Members sit, according to party, in the remaining seats: the second‑rank opposition party gets the first choice of seats after the Official Opposition, the third‑rank party the next choice and so on.[268] The leading Members of the opposition parties, including House Leaders, Whips and critics, sit in the front rows of their designated area.[269]

Those Members who do not have a party designation[270] or who represent a party not recognized by the House are seated subject to the discretion of the Speaker in the remaining seats. These Members typically occupy the desks to the left of the Speaker along the back rows, often but not necessarily near the end of the Chamber. The Speaker allocates the seats for these Members pursuant to their seniority as elected Members, while at the same time retaining a degree of latitude in determining these arrangements.[271]

Typically, three desks are reserved near the Speaker’s Chair for the Deputy Speaker and the other Chair Occupants when they are not presiding over the House.[272] There is no seat reserved for the Speaker.[273]

The seating plan is modified frequently during a Parliament, sometimes following changes within a party, sometimes as a result of negotiations among the parties. Any changes in the seating of a Member or Members within a party are made by the Whip who then notifies the Speaker. If a Member is expelled from his or her party, or chooses to leave to sit as an independent Member, the Speaker reassigns him or her a new seat.[274]

*   Crossing the Floor

Although most Members are elected with a party affiliation (a very small percentage of them are elected without a party banner), Members are not obliged to retain that party label during the whole of their mandate. “Crossing the floor” is the expression used to describe a Member’s decision to break all ties binding him or her to a particular political party.[275] A Member who changes party allegiance is under no obligation to resign his or her seat and stand for re‑election; entitlement to sit as a Member is not contingent upon political affiliation.[276] If a Member decides to cross the floor and sit with another party, the Member’s new party Whip determines the seating arrangement for the Member.



[264] For further information on recognized parties, see Chapter 1, “Parliamentary Institutions”.

[265] This rule does not apply when the House is conducting its proceedings as a Committee of the Whole, or during the Adjournment Proceedings, an emergency debate or a take-note debate where Members may sit and speak from any seat in the House. See Standing Order 17. For further information, see Chapter 13, “Rules of Order and Decorum”, and Chapter 19, “Committees of the Whole House”.

[266] For example, during the Thirty‑Fifth Parliament (1994‑97) and Thirty-Seventh Parliament (2001‑04), the overflow of government Members sat to the immediate left of the Speaker. During the Twenty‑Fourth Parliament (1958‑62), the overflow of government Members sat to the left of the Speaker at the far end of the Chamber. During the Thirty‑Third Parliament (1984‑88) when there were 211 government Members, the overflow of government Members was situated both immediately to the left of the Chair and in the desks at the far end of the left‑hand side of the Chamber, effectively splitting the overflow of government Members to book‑end those Members of the opposition parties.

[267] During the Fortieth Parliament (2008‑present), the New Democratic Party (NDP) caucus was seated on both the government and opposition sides of the House at the far end of the Chamber. During the Twenty‑Fifth Parliament (1962‑63), Thirty-Eighth Parliament (2004‑05), and Thirty‑Ninth Parliament (2006‑08), NDP Members sat on the government side of the House at the far end of the Chamber. During the Thirty‑First Parliament (1979), the five Members of the Social Credit Party sat on the government side of the House at the far end of the Chamber.

[268] In response to a point of order, Speaker Parent explained the process followed in assigning seats to parties (Debates, September 30, 1998, pp. 8584‑5). If a Member is unable to occupy a desk due to a disability or physical restriction (such as a wheelchair), alternate seating arrangements may be made. See Standing Order 1.1, which permits the Speaker to make such arrangements as may be required. In 2004, a quadriplegic Member (Steven Fletcher (Charleswood–St. James–Assiniboia)) was elected to the House. A desk was removed and he was seated on the opposition side of the House in the front row near the Speaker. In 2006 and 2008, he was re-elected and seated in the front row on the government side of the House near the Bar of the House, accompanied in the Chamber by an aide who sat beside him.

[269] In 1994, at the beginning of the Thirty‑Fifth Parliament (1994‑97), the leader of the Reform Party (Preston Manning) chose to sit in the second row of seats; he eventually moved to the front benches.

[270] From time to time, independent candidates have been elected to the House of Commons. For example, in 1997, John Nunziata (York South–Weston) was given a seat in the back row on the opposition side of the House. In 2004, Chuck Cadman (Surrey North) was seated in the back row of the opposition benches. In 2006 and 2008, André Arthur (Portneuf–Jacques‑Cartier) was seated on the government side of the House in the back row. After being elected as an independent Member in 2008, Bill Casey (Cumberland–Colchester–Musquodoboit Valley) was seated in the back row on the opposition side of the Chamber.

[271] Debates, September 24, 1990, pp. 13216‑7. In 1963, a number of Social Credit Party Members from Quebec formed a new party, the Ralliement des Créditistes. As a result, Speaker Macnaughton was asked to decide a number of issues, including the recognition of parties and a new seating arrangement for the Chamber. In a statement given September 30, 1963, the Speaker informed the House that he believed the Chair should not be placed in a position to decide matters affecting the character or existence of a party because those decisions could be mistaken as political decisions. He concluded that the House itself had to resolve the various issues which had arisen as a result of the emergence of a new party. The House subsequently adopted a motion to refer these matters to the Standing Committee on Privileges and Elections (Journals, September 30, 1963, pp. 385‑8). In its Second Report to the House, the Committee recommended that the New Democratic Party (NDP) (which had become the third largest party in the House) be seated next to the Official Opposition; that the Social Credit Party be seated to the left of the NDP; and that the new party occupy the seats to the left of the Social Credit Party (Journals, October 9, 1963, p. 423). The Report was concurred in on October 21, 1963 (Journals, pp. 465‑6). At the beginning of the Thirty‑Fifth Parliament (1994‑97), independent Members included representatives of the NDP (nine Members), the Progressive Conservative Party (two Members), and independent Members (originally just one Member, but the numbers grew to four over the life of the Parliament). Speaker Parent assigned each independent Member a seat according to his or her precedence in the House. Later, as the result of a point of order regarding the party status of the NDP, the Speaker modified the seating plan to allow the NDP and Progressive Conservative caucuses each to be seated together and identified as such. The other independent Members were assigned the remaining seats according to their seniority. See Debates, June 16, 1994, pp. 5437‑40, in particular p. 5439. In 2001, 8 Members of the Canadian Alliance joined together with 12 Members of the Progressive Conservative Party to form the Progressive Conservative/Democratic Representative (PC/DR) Coalition. Among other matters, the Members requested that their designation and slate of House officers be recognized and that they be allowed to sit together (Debates, September 19, 2001, pp. 5296-306). Speaker Milliken ruled that he could find “no procedural objection to the request that members who share the PC/DR designation and the leadership of these officers should be seated together in the configuration that their whip may determine” (Debates, September 24, 2001, pp. 5489‑92, in particular p. 5491).

[272] During the Thirty-Eighth Parliament (2004‑05), the Deputy Speaker, a Conservative Member, was allocated a seat with his party on the left side of the Chamber while the two other Chair Occupants, both government Members, sat with their party. During the Second Session (2007‑08) of the Thirty-Ninth Parliament, the seating arrangements for the Chair Occupants were modified on numerous occasions. At the beginning of the session, they were seated on the government side of the House between Conservative Members and NDP Members. A few weeks later, their seats were relocated to the last two rows on the government side close to the Speaker’s Chair. In the spring of 2008, they were seated on the opposition side of the House close to the Speaker’s Chair. During the First Session of the Fortieth Parliament (2008), the Assistant Deputy Chair of the Whole House, a New Democratic Party Member, sat with her party.

[273] It appears from seating plans for the Chamber that the Speaker, normally a government Member, used to be assigned a desk on the government side near the Chair. No desk has been assigned to a Speaker since the Thirty‑First Parliament (1979) when, following a change of government, Speaker Jerome was elected to a second term, becoming the first opposition Member to be nominated by the governing party to preside over the House (Beauchesne, A., Beauchesne’s Rules & Forms of the House of Commons of Canada, 6th ed., edited by A. Fraser, W.F. Dawson, and J.A. Holtby, Toronto: The Carswell Company Limited, 1989, p. 37).

[274] See, for example, Debates, February 18, 1965, p. 11457; August 29, 1966, pp. 7731‑2; December 3, 1969, p. 1532; June 27, 1978, pp. 6777‑8; May 14, 1986, p. 13268; February 2, 2004, p. 1. In many instances, no record of the change in the party affiliation or status appears in the Debates or the Journals. The Speaker is advised of the change through correspondence or by means of a press release issued by the Member.

[275] For examples of Members changing parties, see Debates, March 13, 1972, p. 745; March 7, 1979, p. 3910. On April 20, 1977, an opposition Member, Jack Horner (Crowfoot), crossed the floor to the governing party and was appointed Minister without Portfolio the following day. On May 17, 2005, Belinda Stronach (Newmarket–Aurora) crossed the floor to the governing party and was appointed Minister of Human Resources and Skills Development and Minister responsible for Democratic Renewal. David Emerson, who had been elected as a Liberal in the riding of Vancouver–Kingsway on January 23, 2006, was sworn in as Minister of International Trade in the Conservative Cabinet on February 6, 2006. In the latter case, three Members requested the Ethics Commissioner to investigate, pursuant to the Conflict of Interest Code for Members of the House of Commons, whether Prime Minister Stephen Harper had induced Mr. Emerson to cross the floor in exchange for a Cabinet position. The Ethics Commissioner concluded that neither Mr. Emerson nor Mr. Harper had contravened the Code (Report of the Ethics Commissioner entitled “The Harper-Emerson Inquiry”, dated March 2006, tabled in the House on April 4, 2006 (Journals, p. 15)). The decision of Members to leave the party under which they were elected to form a new group has occurred on at least three occasions since Confederation. In February 1943, three Members from Quebec defected from the Liberal Party to form the Bloc populaire canadien in response to the introduction of conscription (Debates, February 10, 1943, pp. 309‑13; February 18, 1943, pp. 532‑7, 542‑5). In 1963, Members of the Quebec wing of the Social Credit Party broke away to form a new group called the Ralliement des Créditistes (Journals, September 30, 1963, pp. 385‑8). In 1990, in response to the failure of the Meech Lake Accord, eight Members of different political affiliations formed a new party, the Bloc Québécois (Debates, May 18, 1990, pp. 11615‑7; May 22, 1990, pp. 11631, 11662‑4; June 26, 1990, pp. 13087‑8, 13121‑3).

[276] On several occasions, Peter Stoffer (Sackville–Eastern Shore) introduced a bill to amend the Parliament of Canada Act to provide that the seat of a Member who has crossed the floor be vacated and a by-election called (Debates, March 13, 2000, p. 4398; February 5, 2001, p. 229; October 4, 2002, p. 321; February 2, 2004, p. 10; November 1, 2004, pp. 1012-3; April 6, 2006, p. 60; November 21, 2008, pp. 116‑7).

Move Up

 

Members sit in the House of Commons to serve as representatives of the people who have elected them to that office. They have wide‑ranging responsibilities which include activities in the Chamber, committees, and their constituencies. As Professor C.E.S. Franks has noted:

The member of parliament represents his constituency through service in the House of Commons. This does not mean, however, that he spends most of this time sitting in the House, or even that attendance there is the most important part of his work. An MP spends far more of his working life outside the House than in it. … The job is people‑oriented, involving talking about and listening to ideas, proposals, and complaints, reconciling opposing viewpoints, explaining party or government policy to citizens and citizens’ views to party and government, getting action out of the government on problems of constituents, and examining how the government uses or abuses the power it exercises on behalf of the people of Canada.[277]

Besides participating in debates in the Chamber and in committees, and conveying their constituents’ views to the government and advocating on their behalf, Members also have responsibilities in many other areas:

*       they act as ombudsmen by providing information to constituents and resolving problems;

*       they act as legislators by either initiating bills of their own or proposing amendments to government and other Members’ bills;

*       they develop specialized knowledge in one or more of the policy areas dealt with by Parliament, and propose recommendations to the government; and

*       they represent the Parliament of Canada at home and abroad by participating in international conferences and official visits.

Members, once elected and sworn in, are bound to observe certain rules of conduct in carrying out their parliamentary functions. Although there is no statute which dictates a code of conduct for parliamentarians at the federal level, some provisions regarding the conduct of Members and conflict of interest matters exist in the Standing Orders of the House (including the Conflict of Interest Code for Members of the House of Commons),[278] the Parliament of Canada Act[279] and the Criminal Code.[280] Also in place is the Conflict of Interest Act[281] which governs the ethical conduct of public office holders, including Cabinet Ministers and Parliamentary Secretaries. A number of these provisions are discussed later in this chapter.

*   Attendance

One of the Member’s primary duties is to attend the sittings of the House when it is in session, unless the Member has other parliamentary or official commitments, such as committee meetings, constituency work or parliamentary exchanges. This obligation is enshrined in Standing Order 15: “Every Member, being cognizant of the provisions of the Parliament of Canada Act, is bound to attend the sittings of the House, unless otherwise occupied with parliamentary activities and functions or on public or official business”.[282] The Speaker has traditionally discouraged Members from signalling the absence of another Member from the House because “there are many places that Members have to be in order to carry out all of the obligations that go with their office”.[283]

The Parliament of Canada Act provides for deductions for non‑attendance from the Member’s sessional allowance.[284] At the end of each month and at the end of each session, each Member is required to provide the Clerk of the House with a statement of the number of days of attendance during the month or session, as the case may be.[285] For the purposes of this declaration, those days on which a Member was absent due to illness, a military commitment, the adjournment of the House or because the Member was on “public or official business”, are considered days of attendance.[286] Since there is no regulatory mechanism to monitor Members’ attendance, calculations of Members’ allowances are made on the basis of their statements and deductions are made only where absences exceed 21 sitting days.[287]

While the Parliament of Canada Act gives the House the power to impose more stringent regulations respecting Members’ attendance or deductions from sessional allowances,[288] the presence of Members in the Chamber is largely a function of politics, not procedure or law. Consequently, it has fallen to the Whips to ensure an adequate representation of Members in the Chamber for debates and votes. Thus, through the use of a roster system and other controls, the Whips are able to regulate the attendance of Members in the Chamber, in committees and for other parliamentary functions.

*   Conflict of Interest Code for Members of the House of Commons

On being elected, Members of the House of Commons become trustees of public confidence. Members must place the public’s interests over their private interests and derive no personal benefit or gain from their decisions. A number of statutory provisions and guidelines governing aspects of conflict of interest exist. The Parliament of Canada Act contains several conflict of interest provisions for Members pertaining to compensation for services rendered and trusts established by Members on being elected,[289] and the Conflict of Interest Act establishes conflict of interest rules for public office holders, including Ministers, Ministers of State and Parliamentary Secretaries.[290] In addition, all parliamentarians and public office holders are subject to the general provisions in the Criminal Code pertaining to corruption, including bribery, influence-peddling and breach of trust.[291]

In 2004, the House of Commons adopted the Conflict of Interest Code for Members of the House of Commons to guide Members in the ethical discharge of their duties. The Code also applies to Ministers, Ministers of State and Parliamentary Secretaries when they are acting as Members of the House and not as public office holders.[292] It sets down what constitutes private interests, potential conflicts of interest and disclosure requirements for both Members and their families. It also establishes the rules of conduct and procedures for resolving conflicts. The Code has four objectives:

(a) maintain and enhance public confidence and trust in the integrity of Members as well as the respect and confidence that society places in the House of Commons as an institution;

(b) demonstrate to the public that Members are held to standards that place the public interest ahead of their private interests and to provide a transparent system by which the public may judge this to be the case;

(c) provide greater certainty and guidance for Members in how to reconcile their private interests with their public duties and functions; and

(d) foster consensus among Members by establishing common standards and by providing the means by which questions relating to proper conduct may be answered by an independent, non-partisan adviser.[293]

The establishment of the Code is a manifestation of the House’s right to regulate its internal affairs and to discipline its Members for misconduct. The Code forms part of the Standing Orders of the House[294] and oversight responsibility for the Code has been delegated to the Standing Committee on Procedure and House Affairs.[295]

Historical Perspective

Since the early 1970s, there have been various attempts to define what constitutes a conflict of interest, and to devise rules prohibiting Members from improperly using their influence and insider information, and from furthering their private interests. In 1973, the federal government issued a green paper on “Members of Parliament and Conflict of Interest”.[296] During the next Parliament, the green paper was referred to the Standing Committee on Privileges and Elections, which reported it back to the House with numerous recommendations.[297] In 1978, the government introduced legislation which would have extended the provisions in the green paper and incorporated some of the recommendations made by the Committee.[298] The bill was referred to the Standing Committee on Privileges and Elections after second reading,[299] but Parliament was dissolved before the Committee could report back to the House.

In 1983, the government established a Task Force on Conflict of Interest to devise a conflict of interest regime whereby public confidence would be ensured and the integrity of the political process protected. In May 1984, the Task Force identified nine activities which involved conflicts of interest and recommended that these forms of conduct be dealt with, depending on the severity of the conflict, by means of a code of conduct.[300]

In 1985, the Standing Committee on Management and Members’ Services was asked to consider matters related to the establishment of a Register of Members’ Interests.[301] The Committee concluded that such a register was not warranted and that the then current conflict of interest laws were adequate.[302]

At the end of 1987 came the Report of the Parker Commission of Inquiry on Conflict of Interest regarding the allegations of conflict of interest involving Sinclair Stevens, the former Minister of Regional Industrial Expansion. Mr. Justice Parker made a number of recommendations, in particular a requirement that conflict of interest guidelines include public disclosure of a Minister’s assets, interests and activities. In 1988, the government introduced legislation which was referred to a legislative committee after second reading,[303] but Parliament was dissolved before the committee could report back.

Another conflict of interest bill was introduced during the Second Session (1989‑91) of the Thirty-Fourth Parliament[304] but was not proceeded with. Two similar bills were introduced during the Third Session (1991‑93): Bill C‑43, Members of the Senate and House of Commons Conflict of Interests Act;[305] and Bill C‑116, Conflict of Interests of Public Office Holders Act.[306] The House of Commons gave second reading to Bill C‑116 and referred it to the Special Joint Committee of the Senate and of the House of Commons on Conflict of Interests on March 30, 1993.[307] On June 3, 1993, the Special Joint Committee recommended to the House that the bill not be proceeded with.[308] The Thirty-Fourth Parliament was dissolved shortly thereafter.

Each bill provided for an annual declaration of the private interests of Senators, Members of the House of Commons, their spouses and dependent children to an independent three‑member conflict of interests commission. The bills also contained rules prohibiting the improper use of influence for personal ends; rules on gifts and on post‑employment conduct; and special rules for Ministers respecting their outside professional or business activities. Proposed penalties for non‑compliance ranged from fines to loss of the Member’s or Senator’s seat, but their imposition remained in the hands of the member’s chamber.

During the First Session (1994‑96) of the Thirty-Fifth Parliament, a special joint committee of the Senate and of the House of Commons was established to develop a code of conduct to guide parliamentarians in reconciling their official responsibilities with their personal interests, including their dealings with lobbyists.[309] The committee was re-established during the Second Session (1996‑97) and reported to the House on March 20, 1997 with the recommendation that the Senate and the House of Commons adopt a “Code of Official Conduct”.[310] The Thirty-Fifth Parliament was dissolved a month later, before the report, commonly known as the Milliken-Oliver Report after its Chairs, Peter Milliken (Kingston and the Islands) and Senator Donald Oliver, could be concurred in.

The formulation of a code of conduct did not resurface until 2002 during the Thirty-Seventh Parliament. Prime Minister Chrétien announced an eight-point plan of action on government ethics which, among other matters, called on Senators and Members to support a stand-alone code of conduct inspired by the 1997 Milliken-Oliver Report.[311] Later that year, a parliamentary ethics initiative was tabled in draft form in both chambers.[312] The initiative included a proposed code of conduct for parliamentarians as well as a draft bill amending the Parliament of Canada Act to establish the position of Ethics Commissioner. The initiative and draft legislation were considered by the Standing Committee on Procedure and House Affairs which concluded that a conflict of interest code should be adopted and administered by an Ethics Commissioner. However, the Committee proposed amendments to the draft legislation with respect to the appointment and tenure of the Ethics Commissioner.[313]

In April 2003, the government introduced legislation to amend the Parliament of Canada Act to establish the offices of the Senate Ethics Officer and the House of Commons Ethics Commissioner.[314] The duties and functions of these Officers of Parliament were to be determined by their respective chambers, and both Officers would enjoy the privileges and immunities of Parliament and its Members when carrying out those duties and functions. Eventually, in the spring of 2004, the legislation received Royal Assent.[315] The first Ethics Commissioner for the House of Commons was appointed on May 17, 2004.[316]

During this period, the Standing Committee on Procedure and House Affairs continued its consideration of the proposed code of conduct for Members of the House of Commons and presented four reports on the matter in 2003 and 2004.[317] The House adopted the Conflict of Interest Code for Members of the House of Commons on April 29, 2004.[318] It came into effect at the beginning of the Thirty-Eighth Parliament (2004‑05).

Rules of Conduct for Members

The provisions of the Conflict of Interest Code for Members of the House of Commons apply to all Members when they are carrying out their parliamentary duties and functions.[319] Members may not act in any way to further their private interests, or improperly further or influence another person’s or entity’s private interests.[320]

Within 60 days of the publication of the notice of their election in the Canada Gazette, Members must file with the Conflict of Interest and Ethics Commissioner a confidential statement disclosing all private interests such as assets, liabilities and outside activities as well as those of their family members.[321] The Commissioner prepares a summary of each Member’s confidential disclosure and the summary is available for public inspection upon request.[322]

If a matter in which a Member has a private interest is being discussed in the Chamber or in a committee of which he or she is a member, the Member must, if present during consideration of the matter, disclose at the first opportunity the general nature of the matter either orally or in writing to the Clerk of the House. The disclosure is recorded in the Journals and forwarded to the Commissioner who files it with the Member’s public disclosure statements.[323]

Members may not participate in debate or vote on questions in which they have a private interest.[324] Matters of general application or that affect Members or others as part of a broad class of the public are not included in this prohibition. Even voting a pay increase to Members themselves does not constitute a private interest because it applies to all Members.[325] As well, if a Member is a party to a legal action related to his or her activities as a Member, he or she may continue to debate and vote on related matters.[326] In the event the Member does vote on a matter in which he or she has a private interest, the vote may be questioned and eventually disallowed.[327]

In addition, the Code prohibits Members and members of their families from accepting gifts or benefits that are related to the Member’s position, with the exception of courtesy or protocol-related gifts and hospitality which Members would normally enjoy.[328]

Members are sometimes called upon to travel outside Canada in their capacity as Members of the House of Commons. When the travel costs exceed $500 and are not paid for wholly or substantially out of the Consolidated Revenue Fund, by Members personally, their political party or an interparliamentary association or group recognized by the House, Members are required to disclose the trip to the Conflict of Interest and Ethics Commissioner within 60 days.[329] By January 31 of each year, the Commissioner prepares a list of all sponsored travel for the previous calendar year and this list is tabled in the House by the Speaker at the first opportunity.[330]

If requested in writing, the Conflict of Interest and Ethics Commissioner will provide Members with confidential written opinions on their obligations under the Code.[331]

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Inquiries

*   Initiating an Inquiry

The Conflict of Interest and Ethics Commissioner may be called upon to conduct an inquiry into a Member’s compliance with the Conflict of Interest Code for Members of the House of Commons. Such an inquiry may be initiated in one of the following three ways.

First, if a Member has reasonable grounds to believe that another Member has not complied with the Code, he or she may ask the Conflict of Interest and Ethics Commissioner to conduct an inquiry into the matter.[332] The request must be made in writing, identify the alleged non-compliance and set out the reasonable grounds for the belief that the Code has not been complied with.[333]

Second, the House may adopt a motion directing the Commissioner to conduct an inquiry to determine a Member’s compliance with the Code.[334]

Third, if the Commissioner has reasonable grounds to believe that a Member has not complied with the Code, he or she may initiate an inquiry.[335]

In 2006, before the opening of the Thirty-Ninth Parliament (2006‑08), the Commissioner was asked to conduct two inquiries. Before undertaking the inquiries, the Commissioner had to address two issues: one, whether the Conflict of Interest Code for Members of the House of Commons remains in force during a dissolution of Parliament; and two, given that Members cease to exist constitutionally when Parliament is dissolved, when do they regain the capacity to request inquiries. With respect to the first issue, the Commissioner determined that the Code remains in effect during a dissolution of Parliament because Members’ offices remain open in order to provide services to constituents and Members continue to receive certain salaries and benefits until the date of the general election. The Commissioner noted: “… it follows that Members should be expected to conduct themselves in a manner that is consistent with the requirements of the Code. To do otherwise would be to accept that Members are free to further their private interests once Parliament is dissolved”.[336] With regard to the second issue, the Commissioner reasoned that once an individual’s notice of election has been published in the Canada Gazette, that person is recognized to be an “official” Member of Parliament and may make a request to the Commissioner to conduct an inquiry.[337]

*   Conduct of Inquiry

Upon receipt of a request from a Member to conduct an inquiry, the Commissioner forwards the request to the Member who is the subject of it and the Member has 30 calendar days to respond.[338] Upon receipt of the response, the Commissioner has 10 working days to conduct a preliminary review of the request and the response and to advise both Members whether or not there are reasonable grounds to proceed with an inquiry.[339] If, in the opinion of the Commissioner, the request is frivolous or vexatious or has not been made in good faith, the Commissioner will dismiss the request and report accordingly to the Speaker.[340] The Commissioner may recommend that action be considered against the Member who made the request.[341]

When the Commissioner is instructed by means of a resolution of the House to conduct an inquiry into a Member’s compliance or non-compliance with the Code, the Commissioner proceeds immediately with the inquiry; the preliminary review process does not occur.

In the case of an inquiry initiated by the Commissioner, the Member is given written notice of the Commissioner’s concerns and 30 calendar days to respond to them.[342] Upon receipt of the Member’s response, the Commissioner may conduct an inquiry to determine the compliance or non-compliance with the Code.[343]

The Code compels the Commissioner to conduct an inquiry in private and in a timely manner.[344] The Commissioner is required to give the Member whose conduct is under investigation a reasonable opportunity to be present and to make representations to the Commissioner in writing, in person or by counsel or other representative.[345]

The Commissioner shall immediately suspend an inquiry if there are reasonable grounds to believe that the Member has committed an offence under an act of Parliament; the Commissioner will also notify the proper authorities.[346] The Commissioner must also suspend the inquiry if he or she learns that the matter is under investigation by another authority or if a charge has been laid against the Member.[347] The Commissioner may only continue the inquiry after the outside investigation has concluded or the charge has been disposed of.[348]

Prior to June 2007, the Code prohibited Members from commenting on inquiries being undertaken by the Commissioner. The Speaker had to remind Members of this provision on a number of occasions during Question Period.[349] The Standing Committee on Procedure and House Affairs recommended that this provision be deleted as it was both “unenforceable and an unwarranted restriction on freedom of speech” and the House agreed.[350]

*   Report on Inquiry

Upon completion of an inquiry, the Commissioner presents his or her report to the Speaker who tables it in the House; the report is also made available to the public.[351] The Commissioner is required to report one of three possible outcomes and to include reasons for any conclusions and recommendations.[352]

If the Commissioner concludes that the Code was not contravened, he or she reports accordingly.[353] If the Commissioner finds that there was a mitigated contravention of the Code (i.e., the Member either took all reasonable measures to prevent the non-compliance or that the non-compliance was trivial, occurred through inadvertence or an error in judgement made in good faith), he or she may recommend in the report that no sanctions be imposed.[354] If the Commissioner concludes that a Member has not complied with the Code, and that none of these mitigating circumstances apply, he or she may recommend appropriate sanctions.[355]

In his or her report, the Commissioner may include any recommendations arising from the matter that concern the general interpretation of the Code and any recommendations for revision of the Code that the Commissioner considers relevant to its purposes and spirit.[356]

*   Statement by Member

Within 10 sitting days of the tabling of the report, the Member who is the subject of such a report may make a statement in the House. The Member notifies the Speaker of his or her intention to do so on a given sitting day. Following Question Period on the designated day, the Speaker recognizes the Member who may speak for no more than 20 minutes. No other Members are permitted to participate.[357]

*   Consideration of Inquiry Report

Inquiry reports may be considered by the House. A motion to concur in either a report where no contravention of the Code has been found or in a report where there is a mitigated contravention of the Code may be moved by any Member. The motion is moved under the rubric “Motions” during Routine Proceedings after 48 hours’ notice.[358] Members may speak only once and for no longer than 20 minutes; each 20‑minute speech is followed by a 10‑minute period for questions and comments.[359] If debate is adjourned or interrupted, the motion is transferred to Government Orders.[360] Debate may be resumed at the prerogative of the government within 30 sitting days of the tabling of the report. If debate is not resumed by the expiry of the 30 sitting days, a motion to concur in the report is deemed to have been adopted.[361]

If no concurrence motion is moved with respect to a report where there is either no contravention of the Code or a mitigated contravention of the Code, a motion to concur in the report is deemed to have been moved and adopted at the time of adjournment on the 30th sitting day following the tabling of the report.[362]

In the case of a report where an unmitigated contravention has been found, a Member may move a motion respecting the report under the rubric “Motions” during Routine Proceedings after 48 hours’ notice.[363] The motion is considered for no more than two hours, after which the Speaker interrupts the debate and puts all questions to dispose of the motion and any amendment forthwith. During debate, Members may speak only once and for no longer than 10 minutes.[364] Each 10-minute speech is followed by a five‑minute questions and comments period.[365] If no motion respecting such a report is moved and disposed of before the 30th sitting day following the tabling of the report, a motion to concur in the report will be deemed to have been moved on the 30th sitting day under the rubric “Motions” during Routine Proceedings. The Speaker puts every question necessary to dispose of the motion at that time.[366]

The House may refer a report back to the Commissioner for further consideration with instructions.[367] The Commissioner reconsiders the report in light of the concerns expressed by the House and provides the Speaker with a response which is tabled in the House.[368]

*   Conflict of Interest Act and the Code of Conduct for Public Office Holders

From 1973 until 2004, Prime Ministers issued conflict of interest guidelines for Ministers and other public office holders at the beginning of their term in office, although there was no statutory requirement to do so.[369] Also known as the Prime Minister’s Code, the Conflict of Interest and Post‑Employment Code for Public Office Holders was voluntary and applied to Cabinet Ministers, Secretaries of State, Parliamentary Secretaries and other senior public office holders (full‑time Governor in Council appointees). While the Code varied slightly with each new administration, it required, in general, that, on appointment to one of these offices, the office holders were to arrange their private affairs so as to prevent real, potential or apparent conflicts from arising. They were not to solicit or accept money or gifts; not to assist individuals in their dealings with government in such a way as to compromise their own professional status; not to take advantage of information obtained because of their positions as insiders; and, after they left public office, not to act so as to take improper advantage of having held that office. After leaving office, Ministers and other public office holders were prohibited for a set period of time from certain activities in order to ensure neutrality while in office and to avoid preferential treatment upon leaving office. These guidelines were administered by an ethics counsellor who was a public servant reporting directly to the Prime Minister.[370]

In 2004, the Parliament of Canada Act was amended to require the Prime Minister to establish ethical principles, rules and obligations for public office holders and to table them before each House of Parliament within 30 days of assuming office. The position of Ethics Commissioner was created to administer these rules.[371] On July 9, 2007, the non-statutory Conflict of Interest and Post-Employment Code for Public Office Holders was replaced by the Conflict of Interest Act.[372]

The Conflict of Interest Act establishes conflict of interest and post-employment rules for public office holders, which include Ministers, Ministers of State, Parliamentary Secretaries, ministerial staff and advisers, and certain Governor in Council appointees.[373] The Act defines “conflict of interest”;[374] outlines the general duties of public office holders; identifies prohibitions with respect to political and fundraising activities; and sets down rules respecting the acceptance of gifts, hospitality and other benefits.[375] In addition, the Act establishes compliance measures and disclosure requirements.[376] Finally, the Act fixes rules for post-employment activities.[377] The Act does not prohibit a public office holder, who is also a Member of the House of Commons, from engaging in activities he or she would normally carry out as a Member.[378] Public office holders who contravene certain provisions of the Act are liable to an administrative monetary penalty not exceeding $500.[379]

The Conflict of Interest and Ethics Commissioner is responsible for administering and enforcing the Conflict of Interest Act.[380] The Commissioner ensures that each public office holder has met his or her obligations under the Act and is in compliance with its disclosure requirements.[381] The Commissioner may also conduct an examination into the conduct of a public office holder at the request of a member of the Senate or the House of Commons or on his or her own initiative.[382] At the conclusion of the inquiry, the Commissioner prepares a report for the Prime Minister and provides the public office holder who is the subject of the report with a copy. The report is also made public.[383]

*   Parliamentary Committees and Conflict of Interest Matters

Two standing committees have mandates with respect to conflict of interest matters.[384] In accordance with the Parliament of Canada Act, the Conflict of Interest and Ethics Commissioner performs his or her functions as they relate to Members of the House of Commons under the general direction of a committee designated by the House for this purpose.[385] Pursuant to the Standing Orders, the Standing Committee on Procedure and House Affairs has the mandate to review and report on all matters relating to the Conflict of Interest Code for Members of the House of Commons and on the annual report of the Commissioner with respect to his or her responsibilities relating to Members.[386] In addition, the Committee is charged with undertaking a comprehensive review of the Code’s provisions and operations every five years.[387]

The Standing Committee on Access to Information, Privacy and Ethics has the mandate to review and report on the management, operations and estimates of the Office of the Conflict of Interest and Ethics Commissioner.[388] This Committee also reviews and reports on any of the Commissioner’s reports with respect to his or her responsibilities relating to public office holders.[389] In addition, when the government intends to appoint a Conflict of Interest and Ethics Commissioner, the Committee considers the proposed appointment.[390] In cooperation with other committees, this Committee has the mandate to review and report on federal legislation and regulations as well as any Standing Order which impacts on the ethical standards of public office holders.[391] Finally, the Committee’s mandate includes the “proposing, promoting, monitoring and assessing of initiatives which relate to … ethical standards relating to public office holders”.[392]

The Conflict of Interest Act requires that there be a five-year comprehensive review of the Act by a committee of either or both Houses of Parliament.[393]

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[277] Franks, C.E.S., The Parliament of Canada, Toronto: University of Toronto Press, 1987, p. 87. For additional information on the role of the Member, see Fraser, pp. 58‑63; Commission to Review Allowances of Members of Parliament, Supporting Democracy, Vol. 2, Ottawa: Minister of Public Works and Government Services, 1998, pp. 59‑83.

[278] Standing Orders 15 to 23. The Conflict of Interest Code for Members of the House of Commons is appended to the Standing Orders and contains provisions requiring Members to register foreign travel in certain instances and disclose any private interest in a question before a vote, among other matters. A number of other obligations, including dress code and decorum, are discussed in Chapter 13, “Rules of Order and Decorum”.

[279] R.S. 1985, c. P‑1. For example, the Parliament of Canada Act prohibits Members from entering into a contract directly with the Government of Canada or from receiving any benefit under contract with the Government of Canada (s. 32(1)).

[280] R.S. 1985, c. C‑46. The most serious breaches of ethical behaviour (bribery, influence peddling and breach of trust) are dealt with in the Criminal Code.

[281] As enacted by S.C. 2006, c. 9, s. 2.

[282] Prior to 1994, Standing Order 15 read as follows: “Except as otherwise provided in these Standing Orders, every Member is bound to attend the service of the House, unless leave of absence has been given him or her by the House”. This Standing Order had remained unchanged since 1867. During the early years of Confederation, a Member who wanted permission to be absent from the House sought the necessary leave through another Member, who moved a motion to that effect. The usual reason for seeking leave was illness, but other family and personal reasons were commonly given (see, for example, Journals, May 8, 1868, p. 301; February 15, 1871, p. 10; April 13, 1877, p. 257). The last time a Member was granted a formal leave of absence was in 1878 when it was done by means of a resolution (Journals, April 26, 1878, p. 220). After 1878, the rule was no longer applied; the House chose to rely instead on statutory provisions which provided for monetary penalties for non‑attendance (An Act respecting the Senate and the House of Commons, R.S. 1884, c. 10, s. 26). In 1994, the Standing Committee on Procedure and House Affairs expressed concern that the Standing Order was obsolete and did not reflect that Members are often prevented from attending a sitting of the House because of committee meetings or other parliamentary or constituency commitments (Standing Committee on Procedure and House Affairs, Minutes of Proceedings and Evidence, March 24, 1994, Issue No. 5, pp. 32‑4; May 24, 1994, Issue No. 12, p. 6; June 9, 1994, Issue No. 16, p. 3). See also the transcript of the unpublished meeting of May 3, 1994, pp. 1‑10. On June 10, 1994, the House concurred in the Twenty‑Seventh Report of the Standing Committee on Procedure and House Affairs which included the amended wording for Standing Order 15 (Journals, June 8, 1994, p. 545; June 10, 1994, p. 563).

[283] Debates, April 3, 1987, p. 4875. See also Debates, February 18, 1994, pp. 1553‑4; June 21, 1994, p. 5674; December 5, 1995, pp. 17207‑8; April 19, 2005, p. 5281.

[284] R.S. 1985, c. P‑1, s. 57(1). The deduction of $120 is made from the Member’s sessional allowance for each day beyond 21 days in the session in which a Member does not attend a sitting for reasons other than illness or official business.

[285] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 65(1).

[286] Parliament of Canada Act, R.S. 1985, c. P‑1, ss. 57(3) and 58.

[287] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 57(1).

[288] R.S. 1985, c. P‑1, s. 59.

[289] R.S. 1985, c. P‑1, ss. 41 and 41.1 to 41.5. Contravening these provisions may result in a fine between $500 and $2000. In the event that a Member is found guilty of accepting compensation for services rendered, the Member is also disqualified from sitting in the House of Commons or holding any government office. Members are also required to disclose to the Conflict of Interest and Ethics Commissioner every trust from which they could, currently or in the future, either directly or indirectly, derive a benefit or income. The Commissioner is required to order a trust terminated, if possible, or at least order the Member not to use any benefit or income for nomination, leadership or election campaign expenses.

[290] As enacted by S.C. 2006, c. 9, s. 2.

[291] R.S. 1985, c. C‑46, ss. 121, 122, 124 and 125. For example, a breach of trust occurs when a Member pays a person for work not performed, accepts payment from a person in return for hiring that person as an employee or contractor, or uses public funds for private travel. Should a person be convicted of one of these offences and sentenced to not more than five years of imprisonment, that person is incapable of being elected or sitting or voting as a Member of Parliament. In addition, the Criminal Code provides for 14 years’ imprisonment for a parliamentarian who accepts or attempts to obtain any form of valuable consideration for doing or omitting to do anything in his or her official capacity (s. 119). Since 1960, a number of Members have been charged under the Criminal Code with fraud, bribery, influence‑peddling and breach of trust in their official capacity as a Member. In many instances, the charges were either dropped, the Member was acquitted, or the Member was found not guilty. In the few cases where a Member has been found guilty of one of these charges (in some instances only after the Parliament in which they were charged had been dissolved), only one Member has resigned his seat (Debates, May 24, 1989, pp. 2095‑7; May 30, 1989, p. 2321); the others chose either not to seek re‑election or were defeated in the following general election.

[292] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 4.

[293] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 1.

[294] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 34.

[295] Standing Order 108(3)(a)(viii).

[296] Journals, July 17, 1973, p. 485. A green paper is a document containing government policy proposals, issued for discussion purposes.

[297] Journals, November 27, 1974, p. 149; December 10, 1974, pp. 183‑4; June 10, 1975, pp. 615‑8.

[298] Journals, October 16, 1978, p. 22 (Bill C‑6, An Act respecting the independence of Parliament and conflicts of interests of Senators and Members of the House of Commons and to amend certain other Acts in relation thereof or in consequence).

[299] Journals, March 8, 1979, pp. 454‑5.

[300] Task Force on Conflict of Interest, Ethical Conduct in the Public Sector, Ottawa: Minister of Supply and Services Canada, May 1984, tabled on May 28, 1984 (Journals, p. 484).

[301] Journals, November 25, 1985, pp. 1266‑7.

[302] Journals, March 26, 1986, p. 1926. See also Standing Committee on Management and Members’ Services, Minutes of Proceedings and Evidence, March 19, 1986, Issue No. 4, pp. 5‑7.

[303] Journals, September 1, 1988, p. 3508 (Bill C‑114, Members of the Senate and House of Commons Conflict of Interest Act).

[304] Journals, November 9, 1989, p. 842 (Bill C‑46, Members of the Senate and House of Commons Conflict of Interest Act).

[305] Journals, November 22, 1991, pp. 715‑6, 717‑8; June 10, 1992, p. 1677. See also the Special Joint Committee of the Senate and House of Commons on Conflict of Interests, Minutes of Proceedings and Evidence, June 9, 1992, Issue No. 17.

[306] Journals, March 11, 1993, pp. 2618‑9.

[307] Journals, March 30, 1993, pp. 2742‑3.

[308] Journals, June 3, 1993, p. 3107.

[309] Journals, June 19, 1995, pp. 1801‑3.

[310] Journals, March 12, 1996, pp. 83‑4; March 20, 1997, p. 1325; Second Report of the Special Joint Committee on a Code of Conduct (Proceedings, March 20, 1997, Issue No. 6, pp. 7‑21).

[311] Debates, May 23, 2002, pp. 11636-7. The plan of action broadly outlined an initiative to strengthen and shore up ethics throughout Parliament, the Cabinet and the public service. The guide for Ministers and Ministers of State, which had existed since 1993 and outlined the guiding standards of ethical conduct, was to be made public, as were the guidelines governing ministerial fundraising for political purposes. The government also proposed fundamental changes to the Canada Elections Act governing the financing of political parties and candidates for office as well as changes to the Lobbyists Registration Act to enhance clarity, transparency and enforcement.

[312] Journals of the Senate, October 23, 2002, pp. 83‑4, Journals, p. 99.

[313] Twenty-Seventh Report of the Standing Committee on Procedure and House Affairs, presented to the House on April 10, 2003 (Journals, p. 678).

[314] Journals, April 30, 2003, p. 715.

[315] Journals, March 31, 2004, p. 243.

[316] In 2007, the title of this position was changed to Conflict of Interest and Ethics Commissioner. For further information, see the section in this chapter entitled “Conflict of Interest and Ethics Commissioner”.

[317] Journals, June 13, 2003, p. 934 (Fortieth Report); October 30, 2003, pp. 1208-9 (Fifty‑First Report and Fifty-Second Report; see also Journals, November 3, 2003, p. 1221); April 27, 2004, p. 319 (Twenty-Fifth Report).

[318] Journals, April 29, 2004, pp. 348-9. In 2007 and 2008, the House adopted amendments to the Code. See the Fifty-Fourth Report of the Standing Committee on Procedure and House Affairs, presented to the House on June 11, 2007 and concurred in the same day (Journals, p. 1503) and the supply day motion adopted on June 5, 2008 (Journals, pp. 918-21). The Code does not affect the jurisdiction of the Board of Internal Economy to determine the propriety of the use of goods, funds, services, or premises that are made available to Members to carry out their parliamentary functions (Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 6).

[319] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 4. For greater clarity, section 5 states: “A Member does not breach this Code if the Member’s activity is one in which Members normally and properly engage on behalf of constituents”. In addition, the Code further stipulates that a Member who is neither a Minister nor a Parliamentary Secretary may continue certain professional or business activities outside of Parliament as long as the Member is able to fulfill his or her obligations under the Code (s. 7).

[320] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, ss. 3(2) and 8 to 11. See also ss. 16 to 19 which discuss Members’ obligations with respect to government contracts, ownership of securities in public corporations and interests in partnerships and private corporations.

[321] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, ss. 20 and 21. Members must also report any material change in this information to the Commissioner within 60 days.

[322] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, ss. 23 and 24. See also the Seventh Report of the Standing Committee on Procedure and House Affairs, presented to the House on May 19, 2006 (Journals, p. 200), in which disclosure guidelines were provided to the Commissioner. The House concurred in the report on May 30, 2006 (Journals, p. 209).

[323] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 12(1) and (3). If the Member becomes aware at a later date that he or she should have disclosed a private interest, the Member will advise the Clerk immediately (s. 12(2)). See, for example, Journals, May 14, 2008, p. 822. In circumstances other than the consideration of a matter in the House or in a committee in which a Member has a private interest, the Member advises the Commissioner in writing (s. 12(4)).

[324] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 13. See also Conflict of Interest Act, S.C. 2006, c. 9, ss. 6(2) and 21. Section 6(2) states: “No minister of the Crown, minister of state or parliamentary secretary shall, in his or her capacity as a member of the Senate or the House of Commons, debate or vote on a question that would place him in a conflict of interest”.

[325] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, ss. 3(3)(a), (b) and (c) and 13.1. This interpretation also applies to Ministers and Parliamentary Secretaries (see the definition of “private interests” in section 2 of the Conflict of Interest Act (S.C. 2006, c. 9)). This topic is also discussed in Chapter 13, “Rules of Order and Decorum”.

[326] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 3(3)(b.1). In November 2007, David Tilson (Dufferin–Caledon) asked the Conflict of Interest and Ethics Commissioner to determine whether Robert Thibault (West Nova) had breached his obligations under the Code (specifically paragraph 3(2)(a), section 8, subsections 12(1) and (4) and section 13) by participating in debate and voting on motions in connection with the review being conducted by the Standing Committee on Access to Information, Privacy and Ethics into the settlement former Prime Minister Brian Mulroney had received from the government in 1997 (Mr. Mulroney had successfully sued the government for libellous comments with respect to the purchase of Airbus airplanes by Air Canada in 1988). Mr. Mulroney had instituted legal proceedings against Mr. Thibault for comments he had made about the former Prime Minister in a television broadcast prior to the start of the Committee’s review. Mr. Tilson believed that Mr. Thibault should have recused himself from the Committee’s proceedings because of these legal proceedings. After review, the Commissioner determined that Mr. Thibault had a private interest in the proceedings before the Committee and, by failing to disclose the matter or recuse himself, he had not complied with certain sections of the Code. The Commissioner observed, however, that Mr. Thibault made an “error of judgement … in good faith” and invited the House of Commons to consider whether Members wished to amend the Code. See Report of the Conflict of Interest and Ethics Commissioner entitled “The Thibault Inquiry”, tabled in the House on May 7, 2008 (Journals, p. 783). Some Members expressed concern that if being a defendant in a libel suit was considered having a private interest in a matter, Members’ privilege of freedom of speech could be limited by the filing of lawsuits. See the question of privilege raised by Derek Lee (Scarborough–Rouge River) on May 26, 2008 (Debates, pp. 6006-10). On June 5, 2008, the House debated and subsequently adopted a motion amending the Code to clarify that a Member is not considered to be furthering his or her own private interests if he or she participates in debate on a matter while being a party to a legal action related to that matter. In addition, the House referred the Report back to the Commissioner for reconsideration. See Journals, June 5, 2008, pp. 918-21. On June 17, 2008, the Speaker tabled the Commissioner’s response in which she concluded that Mr. Thibault would not have failed to comply with the Code had the amendment been part of the Code at the time of the investigation (Journals, p. 1000). See also Speaker Milliken’s ruling on Mr. Lee’s question of privilege and the motion subsequently adopted by the House (Journals, June 17, 2008, pp. 1003, 1006, Debates, pp. 7072‑4).

[327] Prior to October 2004 when the Conflict of Interest Code for Members of the House of Commons came into force, Standing Order 21, since deleted, prohibited Members from voting on a matter in which they had a pecuniary interest. When a Member’s vote was questioned, his or her word usually prevailed (see, for example, Debates, June 4, 1900, cols. 6607‑8), although the Member’s vote could have been challenged by way of a motion to disallow it. The only time this was attempted, the question was not proposed to the House (Debates, May 22, 1956, pp. 4244‑5). While no Member’s vote has been disallowed by the House on grounds of direct pecuniary interest, several Members have either voluntarily refrained from voting (see, for example, Debates, September 10, 1985, p. 6473; November 25, 1985, p. 8794; May 27, 1996, p. 3041; June 12, 2003, p. 7178) or had their votes questioned (see, for example, Debates, May 3, 1886, p. 1011; June 21, 1982, pp. 18708‑9). In December 1997, the Minister of Finance (Paul Martin) rose on a point of order to indicate that in the process of the House agreeing to apply the results of one vote to another vote, he had been registered as voting for the third reading of a bill in which he had an interest (Bill C‑9, Canada Marine Act). He asked for and received the unanimous consent of the House to have his vote deleted from the record (Debates, December 9, 1997, pp. 3007‑9, 3011).

[328] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 14(1) and (2). If the gifts or benefits exceed $500 or if the total value of all gifts and benefits from one source exceeds $500 in a 12-month period, the Member must disclose this information to the Commissioner within 60 days (s. 14(3)).

[329] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 15(1) and (2). Prior to the adoption of the Code in 2004, Standing Order 22, since deleted, required Members to register trips and the name of the sponsoring individual or organization with the Clerk of the House who kept a public record of this information.

[330] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 15(3). See, for example, Journals, January 31, 2005, p. 360; April 4, 2006, p. 15; January 31, 2007, p. 945; January 31, 2008, p. 365.

[331] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 26.

[332] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 27(1).

[333] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 27(2).

[334] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 27(3).

[335] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 27(4).

[336] Report of the Ethics Commissioner entitled “The Gallant Inquiry”, dated June 2006, tabled in the House on June 21, 2006 (Journals, p. 335), p. 9. To support this conclusion, the Commissioner also referred to section 20 of the Conflict of Interest Code which requires Members to file disclosure statements within 60 days of the notification of their election appearing in the Canada Gazette as well as to section 28(3) which requires the Commissioner to make inquiry reports public after a dissolution of Parliament. See also Report of the Ethics Commissioner entitled “The Harper-Emerson Inquiry”, dated March 2006, tabled in the House on April 4, 2006 (Journals, p. 15), p. 10.

[337] Report of the Ethics Commissioner entitled “The Harper-Emerson Inquiry”, dated March 2006, tabled in the House on April 4, 2006 (Journals, p. 15), pp. 9-10.

[338] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 27(3.1).

[339] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 27(3.2).

[340] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 27(6).

[341] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 27(6).

[342] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 27(4). In 2005, Deepak Obhrai (Calgary East) raised a question of privilege with respect to an inquiry that had been undertaken by the Ethics Commissioner. The Member alleged that the Commissioner had not advised him in writing of an inquiry into his conduct pursuant to s. 27(4) of the Code. He also accused the Commissioner of not following other proper processes (Debates, September 26, 2005, pp. 8025-7). Speaker Milliken ruled that since neither the Parliament of Canada Act nor the Code provided a protocol for the resolution of such complaints, it would be beneficial for both the House and the Commissioner if the Standing Committee on Procedure and House Affairs considered the matter. Consequently, the Speaker ruled that the issue constituted a prima facie matter of privilege and it was referred by the House to the Procedure and House Affairs Committee (Journals, October 6, 2005, p. 1119, Debates, pp. 8473-4). After investigation, the Committee found that the Ethics Commissioner was in contempt of the House. However, the Committee did not recommend any sanction or penalty because the Commissioner’s non‑compliance with the Code had not been deliberate or intentional (Fifty-First Report of the Standing Committee on Procedure and House Affairs, presented to the House on November 18, 2005 (Journals, pp. 1289-90)).

[343] See, for example, Report of the Ethics Commissioner entitled “The Obhrai Inquiry”, dated March 2007, tabled by the Speaker on March 30, 2007 (Journals, p. 1195).

[344] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 27(7). In addition, section 27(5.1) of the Code prohibits the Commissioner from commenting publicly on any preliminary review or inquiry.

[345] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 27(7).

[346] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 29(1)(a).

[347] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 29(1)(b).

[348] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 29(2). See, for example, Report of the Ethics Commissioner entitled “The Obhrai Inquiry”, dated March 2007, tabled in the House on March 30, 2007 (Journals, p. 1195), p. 5.

[349] See, for example, Debates, April 19, 2005, p. 5284; June 6, 2005, p. 6657; June 7, 2005, pp. 6737-8.

[350] Fifty-Fourth Report of the Standing Committee on Procedure and House Affairs, presented to the House on June 11, 2007 and concurred in the same day (Journals, p. 1503), par. 24.

[351] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 28(1). See, for example, Journals, June 22, 2005, p. 957; March 30, 2007, p. 1195. If Parliament is adjourned, prorogued or dissolved, the Commissioner sends the report to the Speaker and then makes it public (s. 28(2) and (3)). The report is included in the Journals on the first sitting day thereafter. See, for example, Journals, April 4, 2006, p. 15; September 18, 2006, p. 370.

[352] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 28(7).

[353] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 28(4). See, for example, Report of the Ethics Commissioner entitled “The Obhrai Inquiry”, dated March 2007 (Journals, March 30, 2007, p. 1195); Report of the Ethics Commissioner entitled “The Smith Inquiry”, dated December 2005 (Journals, April 4, 2006, p. 15).

[354] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 28(5). See, for example, Report of the Ethics Commissioner on an inquiry in relation to the Honourable Member for Newton–North Delta (Journals, June 22, 2005, p. 957); Report of the Ethics Commissioner entitled “The Vellacott Inquiry”, dated June 2006 (Journals, September 18, 2006, p. 370); Report of the Conflict of Interest and Ethics Commissioner entitled “The Thibault Inquiry”, dated May 7, 2008 (Journals, May 7, 2008, p. 783).

[355] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 28(6).

[356] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 28(8). See, for example, Report of the Conflict of Interest and Ethics Commissioner entitled “The Thibault Inquiry”, tabled by the Speaker on May 7, 2008 (Journals, p. 783), p. 24.

[357] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 28(9). See, for example, Journals, September 21, 2006, p. 413, Debates, pp. 3095‑8; Journals, April 19, 2007, p. 1239, Debates, pp. 8456-7. No period for questions and comments follows the speech.

[358] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 28(10).

[359] Standing Order 43(1)(b).

[360] Standing Order 66.

[361] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 28(10).

[362] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 28(10). See, for example, Journals, April 28, 2006, p. 108; September 28, 2006, p. 471; September 29, 2006, p. 477; April 27, 2007, p. 1275.

[363] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 28(11). The motion could be other than the usual motion to concur in the report, e.g., that Recommendation 1 be adopted but Recommendation 2 be negatived.

[364] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 28(11).

[365] Standing Order 43(1)(c).

[366] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 28(12).

[367] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 28(13). See, for example, Journals, June 5, 2008, pp. 918-21. When a report is referred back to the Commissioner for further consideration, any motions on the Order Paper to concur in the report are removed since the report is no longer in the possession of the House.

[368] See, for example, Journals, June 17, 2008, p. 1000.

[369] The first conflict of interest code was issued by Prime Minister Pierre Trudeau in the early 1970s, while another version was introduced by Prime Minister Joe Clark in 1979. Prime Minister Brian Mulroney issued The Conflict of Interest and Post‑Employment Code for Public Office Holders in September 1985 (Debates, September 9, 1985, pp. 6399‑402) and it was modified by Prime Minister Jean Chrétien in 1994. In 2002, Prime Minister Chrétien tabled three documents respecting ethical standards for Ministers (Journals, June 11, 2002, p. 1564).

[370] Office of the Prime Minister, “Prime Minister Appoints Canada’s First Ethics Counsellor, Announces Integrity Measures”, News Release, June 16, 1994. Prior to June 1994, the Assistant Deputy Registrar of Canada performed the functions of the Ethics Counsellor.

[371] S.C. 2004, c. 7, s. 4. Ethical guidelines were tabled twice in the House of Commons pursuant to this provision (Journals, October 7, 2004, p. 31; April 6, 2006, p. 30).

[372] As enacted by S.C. 2006, c. 9, s. 2 and in force July 9, 2007 (SI/2007-75). Part 1 of the Federal Accountability Act, which received Royal Assent on December 12, 2006, provided for the enactment of the Conflict of Interest Act. The Act added a number of elements to the existing Code.

[373] S.C. 2006, c. 9, s. 2(1).

[374] Conflict of Interest Act, S.C. 2006, c. 9, s. 4 states: “For the purposes of this Act, a public office holder is in a conflict of interest when he or she exercises an official power, duty or function that provides an opportunity to further his or her private interests or those of his or her relatives or friends or to improperly further another person’s private interests”.

[375] Conflict of Interest Act, S.C. 2006, c. 9, Part 1.

[376] Conflict of Interest Act, S.C. 2006, c. 9, Part 2.

[377] Conflict of Interest Act, S.C. 2006, c. 9, Part 3.

[378] Conflict of Interest Act, S.C. 2006, c. 9, s. 64(1).

[379] Conflict of Interest Act, S.C. 2006, c. 9, s. 52. See also ss. 53 to 62.

[380] Parliament of Canada Act, R.S. 1985, c. P-1, ss. 85 and 87.

[381] Conflict of Interest Act, S.C. 2006, c. 9, s. 28.

[382] Conflict of Interest Act, S.C. 2006, c. 9, ss. 44 and 45.

[383] Conflict of Interest Act, S.C. 2006, c. 9, ss. 44(7) and (8), and 45(3) and (4).

[384] On March 3, 2008, the Chair of the Standing Committee on Access to Information, Privacy and Ethics, Paul Szabo, rose on a point of order concerning proceedings in the Committee. In particular, Mr. Szabo expressed concern that the Committee’s decision to investigate the fundraising activities of the Liberal Party went beyond its mandate as the motion adopted by the Committee did not include any reference to the Conflict of Interest Code for Members of the House of Commons or to any ethical standards for public office holders. He argued that this matter fell more properly under the mandate of the Standing Committee on Procedure and House Affairs which has the responsibility to review and report on all matters related to the election of Members (Debates, pp. 3549-51). On March 14, 2008, Speaker Milliken returned to the House with a ruling on the matter. The Speaker reviewed the mandates of the two committees with respect to ethical matters, and underscored the power of all committees to initiate studies within their mandates. Furthermore, he reminded the House that each committee is expected to respect its mandate and to be “judicious in the exercise of their powers”. Speaker Milliken went on to say that, measured against these standards, he found it difficult to determine if the Standing Committee on Access to Information, Privacy and Ethics had acted appropriately. Noting that Speakers have traditionally been reluctant to intervene in the proceedings of a committee, and acknowledging that he was not in a position to determine what interpretation the Committee might give to the motions it had adopted, he concluded that he could not find sufficient evidence “to usurp the role of committee members in regulating the affairs” of the Committee. However, he advised the House that if the Committee presented a report on the investigation and if Members still had concerns at that time about the Committee’s mandate, he would revisit the matter. See Debates, March 14, 2008, pp. 4181-3. Two months later, the Committee presented a report to the House on a different matter in which it recommended amendments to the Conflict of Interest Code for Members of the House of Commons (Journals, May 14, 2008, p. 818). Jay Hill (Secretary of State and Chief Government Whip) argued that the report was inadmissible because the Committee’s mandate did not include reviewing and reporting on the Code (Debates, May 14, 2008, pp. 5856‑60). Speaker Milliken subsequently ruled that the subject matter of the report was not within the mandate of the Committee. The report was deemed withdrawn and two notices of motions to concur in the report standing on the Order Paper were removed (Journals, May 15, 2008, p. 827, Debates, pp. 5924‑5). A few weeks later, Mr. Hill rose again on a point of order to ask the Speaker to intervene in the affairs of the Committee. The Committee had adopted a motion to study the election expenses of Conservative candidates during the 39th general election which, he argued, was beyond the mandate of the Committee. After interventions by other Members, Speaker Milliken ruled that he could not intervene in the business of the Committee until it presented a report on the matter to the House (Debates, June 20, 2008, pp. 7203-10).

[385] R.S. 1985, c. P-1, s. 86(3) and (4).

[386] Standing Order 108(3)(a)(vii) and (viii). See, for example, Standing Committee on Procedure and House Affairs, Minutes of Proceedings, May 9, 2006, Meeting No. 5; October 19, 2006, Meeting No. 23. See also the Committee’s Seventh Report, presented to the House on May 19, 2006 (Journals, p. 200) and concurred in on May 30, 2006 (Journals, p. 209). In both the Thirty‑Eighth and Thirty-Ninth Parliaments, the Committee established a subcommittee to deal with specific conflict of interest issues (Minutes of Proceedings, October 14, 2004, Meeting No. 14; November 7, 2006, Meeting No. 28; November 22, 2007, Meeting No. 6). It should also be noted that the Standing Committee on Procedure and House Affairs does not have the power to review inquiry reports prepared by the Commissioner. A report from the Commissioner regarding a Member’s compliance with the Code is dealt with by the House itself (Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 28).

[387] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 33.

[388] Standing Order 108(3)(h)(iii). See, for example, Standing Committee on Access to Information, Privacy and Ethics, Minutes of Proceedings, May 10, 2005, Meeting No. 25; June 28, 2005, Meeting No. 34; November 1, 2006, Meeting No. 14.

[389] Standing Order 108(3)(h)(iv). See, for example, Standing Committee on Access to Information, Privacy and Ethics, Minutes of Proceedings, November 3, 2005, Meeting No. 44; November 24, 2005, Meeting No. 48. The Committee does not consider inquiry reports respecting the conduct of a public office holder. These reports are not tabled in the House; they are given to the Prime Minister and made public (Conflict of Interest Act, S.C. 2006, c. 9, ss. 44(7) and (8), and 45(3) and (4)).

[390] Standing Order 111.1. See, for example, Standing Committee on Access to Information, Privacy and Ethics, Minutes of Proceedings and Evidence, June 14, 2007, Meeting No. 54. See also Journals, June 12, 2007, p. 1507; June 14, 2007, p. 1532.

[391] Standing Order 108(3)(h)(v).

[392] Standing Order 108(3)(h)(vi). On November 20, 2007, Pat Martin (Winnipeg Centre) attempted to move a motion in the Standing Committee on Access to Information, Privacy and Ethics with respect to the government’s inquiry into the Mulroney Airbus libel settlement. The Chair of the Committee, Paul Szabo, expressed concern that the subject matter of the motion was not within the Committee’s mandate. He advised that he would first seek the advice of the Clerk of the House before allowing the motion to be moved (Standing Committee on Access to Information, Privacy and Ethics, Evidence, November 20, 2007, Meeting No. 2). At the next meeting of the Committee, Mr. Szabo explained that his concerns were specifically about the definition and scope of the term “initiatives” in the Standing Order and whether or not it allowed the Committee to review initiatives not undertaken by the Committee itself or by the Conflict of Interest and Ethics Commissioner. Having consulted with procedural staff and legal counsel, he ruled that the motion was admissible (Standing Committee on Access to Information, Privacy and Ethics, Minutes of Proceedings and Evidence, November 22, 2007, Meeting No. 3).

[393] S.C. 2006, c. 9, s. 67.

Move Up

 

The Conflict of Interest and Ethics Commissioner is an Officer of Parliament responsible for administrating the Conflict of Interest Code for Members of the House of Commons and the Conflict of Interest Act for public office holders. The Commissioner also provides confidential advice to public office holders, to Members of the House of Commons, and to the Prime Minister on conflict of interest and ethical matters. In addition, the Commissioner conducts inquiries into Members’ compliance with the Conflict of Interest Code for Members of the House of Commons and into possible breaches of the Conflict of Interest Act by public office holders.

When the first guidelines for public office holders were introduced in 1973, a senior public servant, the Assistant Deputy Registrar of Canada, reporting directly to the Prime Minister, was responsible for administering them. In 1994, Prime Minister Chrétien appointed an Ethics Counsellor to administer the Code of Conduct for Public Office Holders.[394] In 2004, the Parliament of Canada Act was amended to create the position of Ethics Commissioner.[395] This official was appointed to perform the duties and functions assigned by the House of Commons regarding the conduct of its Members and to administer any ethical principles, rules or obligations established by the Prime Minister for public office holders. In 2006, the title of the position was changed to Conflict of Interest and Ethics Commissioner with the adoption of the Federal Accountability Act.[396] The first Conflict of Interest and Ethics Commissioner was appointed in July 2007.[397]

*   Appointment Process

The Conflict of Interest and Ethics Commissioner is appointed by Governor in Council after consultations with the leaders of all recognized parties in the House of Commons and the adoption of a resolution by the House.[398] Pursuant to the Standing Orders, when the government intends to appoint a Conflict of Interest and Ethics Commissioner, the appointee’s biographical notes are tabled in the House by a Minister (or Parliamentary Secretary) and referred to the Standing Committee on Access to Information, Privacy and Ethics.[399] The Committee has the option of considering the name of the proposed appointee. If it chooses to do so, the Committee has 30 calendar days following the tabling of the biographical notes to consider the proposed appointment and report back to the House.[400] Before this 30-day period expires, a notice of motion to ratify the appointment is placed on the Notice Paper for consideration under the rubric “Motions” during Routine Proceedings, whether the Committee has reported back to the House or not.[401] The motion, when moved, is to be decided without debate or amendment.[402]

The Parliament of Canada Act establishes the qualifications for the Conflict of Interest and Ethics Commissioner. In order to be eligible for appointment to this office, the candidate must be a former superior court judge or a former provincial court judge; a former member of a federal or provincial board, commission or tribunal with demonstrated expertise in matters of conflict of interest, financial arrangement, professional regulation and discipline or ethics; or, a former Senate Ethics Officer or former Ethics Commissioner.[403]

The Commissioner’s appointment is for seven years, unless he or she is removed for cause by the Governor in Council following a resolution of the House of Commons.[404] The appointment may be renewed for one or more terms up to seven years each.[405]

*   Responsibilities

This Officer of Parliament has the rank of a deputy head of a government department and is responsible for the control and management of the Office of the Conflict of Interest and Ethics Commissioner.[406] The mandate of the Commissioner is two-fold: to administer the Conflict of Interest Code for Members of the House of Commons[407] and to administer the Conflict of Interest Act for public office holders.[408]

The Commissioner provides confidential advice to public office holders with respect to their obligations under the Conflict of Interest Act.[409] The Commissioner also provides confidential opinions to Members of the House of Commons about their obligations under the Conflict of Interest Code.[410] In addition, the Commissioner provides confidential advice to the Prime Minister about the application of the Conflict of Interest Act to individual public office holders and confidential policy advice to the Prime Minister on conflict of interest and ethics issues in general.[411]

The Commissioner meets with the Standing Committee on Procedure and House Affairs at its request to discuss issues of concern or areas in the Code which need clarification.[412] The Commissioner may also meet with the Standing Committee on Access to Information, Privacy and Ethics to discuss conflict of interest matters relating to public office holders or the management and operation of his or her Office.[413]

The Commissioner prepares a summary of required confidential disclosure statements for both Members of the House of Commons and public office holders and maintains a public registry of these summaries.[414] The Commissioner also prepares procedural and interpretative guidelines and forms relating to the Code for submission to the Standing Committee on Procedure and House Affairs.[415]

In addition, the Commissioner submits two annual reports to Parliament: one on the administration of the Conflict of Interest Code for Members of the House of Common,[416] and one on the administration of the Conflict of Interest Act,[417] no later than June 30 each year. The Commissioner also prepares a list of all sponsored travel by Members of the House of Commons by January 31 each year; the list is tabled in the House.[418]

The Commissioner conducts inquiries into whether a Member has contravened the Conflict of Interest Code at the request of another Member, by resolution of the House, or on his or her own initiative.[419] At the request of a Senator or a Member or on his or her own initiative, the Commissioner may also conduct an examination into whether a current or former public office holder has breached the Conflict of Interest Act.[420] If the Commissioner finds that a public office holder has violated certain sections of the Act, he or she may impose on the office holder an administrative monetary penalty not exceeding $500.[421]

Finally, the Commissioner is mandated to organize educational activities for Members and the general public regarding the Code and the role of the Commissioner.[422]



[394] Howard Wilson held this position from 1994 until 2004. He was also responsible for the Lobbyists’ Code of Conduct and for administering the Lobbyists’ Registration Act.

[395] S.C. 2004, c. 7, s. 4. Bernard Shapiro, Principal and Vice-Chancellor Emeritus of McGill University, was appointed Ethics Commissioner on May 17, 2004 by Order in Council after his nomination was ratified by the House of Commons (Journals, April 21, 2004, p. 285; April 27, 2004, p. 319; April 29, 2004, p. 348). In 2005, a motion of non-confidence in the Ethics Commissioner was moved and negatived in the Standing Committee on Access to Information, Privacy and Ethics (Minutes of Proceedings, June 28, 2005, Meeting No. 34). Mr. Shapiro resigned on March 30, 2007.

[396] Federal Accountability Act, S.C. 2006, c. 9, ss. 27 and 28. The appointment process and the mandate of this office are set out in the Parliament of Canada Act (R.S. 1985, c. P-1, ss. 81 and 85).

[397] Mary Dawson was appointed Conflict of Interest and Ethics Commissioner on July 9, 2007 after her nomination was ratified by the House of Commons (Journals, June 12, 2007, p. 1507; June 14, 2007, p. 1532; June 18, 2007, pp. 1549-53).

[398] Parliament of Canada Act, R.S. 1985, c. P-1, s. 81(1).

[399] Standing Order 111.1(1). See, for example, Journals, June 12, 2007, p. 1507.

[400] Standing Order 111.1(1). In 2007, the Committee invited the appointee to appear before it, make a statement and answer questions (Standing Committee on Access to Information, Privacy and Ethics, Minutes of Proceedings and Evidence, June 14, 2007, Meeting No. 54). See also Journals, June 14, 2007, p. 1532.

[401] Standing Order 111.1(2). See, for example, Order Paper and Notice Paper, June 13, 2007, p. III. Notice was given by the Government House Leader.

[402] Standing Order 111.1(2). See, for example, Journals, June 18, 2007, pp. 1549-53.

[403] Parliament of Canada Act, R.S. 1985, c. P-1, s. 81(2).

[404] Parliament of Canada Act, R.S. 1985, c. P-1, s. 82(1). In the event of the absence or incapacity of the Commissioner, or if the office is vacant, the Governor in Council may appoint an interim Commissioner for a term not exceeding six months (s. 82(2)).

[405] Parliament of Canada Act, R.S. 1985, c. P-1, s. 81(3).

[406] Parliament of Canada Act, R.S. 1985, c. P-1, s. 84(1). The Commissioner’s salary is set by Governor in Council (s. 83(1)).

[407] Parliament of Canada Act, R.S. 1985, c. P-1, s. 86(1). The duties and functions of the Commissioner as they relate to the Conflict of Interest Code are carried out under the general direction of the Standing Committee on Procedure and House Affairs (s. 86(3)). See also Standing Order 108(3)(a)(vii) and (viii).

[408] Parliament of Canada Act, R.S. 1985, c. P-1, s. 87.

[409] S.C. 2006, c. 9, s. 43(b). The Act requires the Commissioner to review annually with each public office holder his or her obligations under the Act and any information contained in the confidential disclosure reports (s. 28).

[410] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 26.

[411] Conflict of Interest Act, S.C. 2006, c. 9, s. 43(a); Parliament of Canada Act, R.S. 1985, c. P‑1, s. 85(b).

[412] Standing Order 108(3)(a)(vii) and (viii). See, for example, Standing Committee on Procedure and House Affairs, Evidence, October 14, 2004, Meeting No. 2.

[413] Standing Order 108(3)(h)(iii) and (iv).

[414] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 23; Conflict of Interest Act, S.C. 2006, c. 9, s. 51(1).

[415] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 30(1).

[416] Parliament of Canada Act, R.S. 1985, c. P-1, s. 90(1)(a). See, for example, Journals, June 20, 2008, p. 1031.

[417] Parliament of Canada Act, R.S. 1985, c. P-1, s. 90(1)(b). See, for example, Journals, June 13, 2008, pp. 985-6.

[418] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 15(3). See, for example, Journals, January 31, 2008, p. 365.

[419] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 27(1), (3), and (4). For further information, see the section in this chapter entitled “Inquiries”.

[420] Conflict of Interest Act, S.C. 2006, c. 9, ss. 44(1) and 45(1). The report is presented to the Prime Minister; a copy is given to the public office holder or former public office holder who is the subject of the report and the report is also made public (ss. 44(7) and (8), and 45(3) and (4)).

[421] Conflict of Interest Act, S.C. 2006, c. 9, s. 52.

[422] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 32.

Move Up

 

Members of the House of Commons are entitled to a sessional allowance, a pension plan, and relocation benefits. They also have access to several comprehensive medical, dental and life insurance plans that provide a broad range of coverage. Moreover, Members are provided with an office budget, travel resources and a fully‑equipped office in the Parliamentary Precinct in order to carry out their parliamentary functions.

*   The Sessional Allowance

The sessional allowance, the equivalent of a salary, is stated as an annual amount and is paid monthly.[423] Additional salaries are payable to Members of the House of Commons occupying certain offices and positions. These include the Prime Minister, Ministers, the Speaker and other Chair Occupants, the leaders of recognized opposition parties, House Leaders and Deputy House Leaders, Whips and Deputy Whips, Parliamentary Secretaries, Caucus Chairs, and Chairs and Vice-Chairs of standing, special, standing joint and special joint committees.[424] The sessional allowance and additional salaries are adjusted each year on April 1; the adjustment is based on the index of the average percentage increase in base-rate wages for the calendar year in Canada resulting from major settlements negotiated in the private sector.[425]

Newly-elected Members receive a sessional allowance as of the date of their election as certified on the return of the writ[426] and this allowance continues until a Member ceases to hold office. Members continue to receive the sessional allowance between the day of dissolution and the day before an election.[427] The sessional allowance continues uninterrupted when Members are re-elected.

*   Pension

The pension plan for Members was first established in 1952. At that time, Prime Minister St-Laurent expressed concern about the reluctance of some people to run for a seat in the House of Commons because of their belief that long years spent in public service would not allow them to provide adequately for their later years. The Prime Minister believed that the establishment of a pension plan would strengthen the parliamentary institution and attract the right kind of person to public service.[428] Under the Members of Parliament Retiring Allowances Act, a retiring allowance (pension) is payable to former Members who have contributed to the pension plan for a minimum of six years and who have attained age 55.[429] Should a Member retire with less than six years of service, the Member receives a withdrawal allowance in a single payment.[430]

Former Members who are not eligible for an immediate pension may be entitled to a severance allowance equal to 50% of the sessional allowance and any additional annual salary payable to Members occupying certain offices (such as that of a Minister, House Leader, Whip, or Parliamentary Secretary).[431]

The provisions of the Members of Parliament Retiring Allowance Act continue to apply between the day of dissolution and election day. Contributions cease as of election day for Members who are not re‑elected.

*   Budgetary Entitlements

The Parliament of Canada Act authorizes the Board of Internal Economy to make by‑laws with regard to the use of funds, goods, services and premises provided to Members.[432] The By‑laws were first enacted by the Board of Internal Economy in 1993 and are a series of guidelines regulating the use of parliamentary resources made available to Members to help them perform their parliamentary functions. The term “parliamentary functions” is defined as “duties and activities related to the position of Member of the House of Commons wherever performed and includes public and official business and partisan matters but does not include the private business interests of a Member or a Member’s immediate family”.[433]

Each year, the Board of Internal Economy publishes a Finance By‑law (By‑law 501) which establishes the financial provisions for the fiscal year (April 1 to March 31). These include the Member’s Office Budget, House Officers’ Budgets[434] and Committees’ Budgets.

Each Member is provided with a Member’s Office Budget which is comprised of a Basic Budget, and for some Members an Elector Supplement, and/or a Geographic Supplement.[435] Members who represent constituencies listed in Schedule 3 of the Canada Elections Act also receive a supplement.[436] The Member’s Office Budget is used to pay expenses for the Member’s offices, in Ottawa and in the constituency, including staff salaries. The House of Commons also provides Members with modern office equipment and services such as extensive long‑distance calling, electronic mail and Internet facilities, wireless devices, internal mail and messenger services, printing, security and language training.[437] Members may spend their budgets, or use the House services provided, as they choose so long as they conform to the regulations prescribed by the Board of Internal Economy.

The Board determines the terms and conditions of managing and accounting for the funds by Members and has exclusive authority to determine whether their use is or was proper.[438] Other By‑laws set out the terms governing Members’ use of their budgets and other benefits provided by the House, including travel points, printing privileges, staff, and the purchase of goods. In the event the By‑laws are contravened, the Board of Internal Economy may pursue a number of options, including withholding money from one of the Member’s budgets or allowances, or freezing any budget or allowance or payment that may be available to the Member.[439]

Each Member is the employer of all his or her employees and has the prerogative to recruit, hire, promote and release employees.[440] A Member is allowed full discretion in the direction and control of the work performed on his or her behalf by employees and is subject only to the authority of the Board of Internal Economy and the House of Commons in the exercise of that discretion. Members determine the duties to be performed, hours of work, job classifications and salaries, and are responsible for employee relations.[441] Subject to specific terms and conditions, Members may enter into contracts for services with individuals, agencies or organizations and use a portion of the Member’s Office Budget for the payment of these contractors. Members may not hire or enter into a contract for consulting and professional services with members of their immediate family (spouses and children and their spouses and children) or their parents.

Members have free mailing privileges, often referred to as “franking” privileges.[442] “Franking” is the process by which Members of the House of Commons, by affixing their signatures to an addressed piece of mail, may have that mail delivered postage‑free anywhere in the country. It is available only for mail that is addressed to places in Canada and may not be used for parcels, special delivery or other special services offered by Canada Post. Mail addressed to Members is also delivered free of charge if sent to a Parliament Hill address. These mailing privileges begin on the day the notice of the Member’s election is published by the Chief Electoral Officer in the Canada Gazette and end 10 calendar days after a dissolution of Parliament or 10 days after that person ceases to be a Member.[443]

Once each Parliament, Members may relocate their primary residence or establish a secondary residence in the National Capital Region at any time following their election to the House of Commons.[444] Members are also allocated a Travel Status Expenses Account to offset the cost of meals, incidentals and accommodation expenses incurred while on official business more than 100 kilometres from their principal residence. This budget also helps Members offset some of the costs involved in maintaining two households, one in their constituency and one in Ottawa. Members are also allowed up to 64 regular return trips to travel between Ottawa and the constituency and on occasion elsewhere in Canada.[445]

When Parliament is dissolved, Members of the House of Commons are discharged from their responsibility to attend the sittings of the House and cease to be Members of Parliament. However, between the date Parliament is dissolved and the day of the election, budgetary funds, goods, services and premises made available by the House to its Members are to be used to assist Members in providing services to their constituents, although some services may be modified or suspended.[446] Constituency offices remain open to provide services to constituents; they may not be used for election-related purposes. In addition, Members are entitled to one return trip per week between their constituency and Ottawa during this time.[447]

Members who are defeated or who did not seek re‑election are provided with travel benefits to come to Ottawa to close their office. If a Member resigns before Parliament is dissolved, his or her travel benefits cease as of the day of resignation.

On behalf of the Board of Internal Economy, the Speaker tables in the House an annual public report of Members’ expenses. This report discloses each Member’s expenses pertaining to office operations, employee salaries, contracting, advertising, and travel costs and the costs of goods supplied by the House Administration. Members receive a copy of their annual expenditures prior to disclosure.[448]



[423] Parliament of Canada Act, R.S. 1985, c. P‑1, ss. 55.1 and 56. In 1867, Members received a sessional allowance of six dollars a day if a session did not extend beyond 30 days; if the session continued longer, Members received a sessional allowance of $600 (Bourinot, 4th ed. pp. 153‑6). For an overview of the evolution of the sessional allowance, see Supporting Democracy, Vol. 2, pp. 32‑3. Until 2001, Members also received an incidental expense allowance which was non‑accountable (i.e., Members did not have to document their use of the allowance with receipts) and it was not subject to income tax. From 1975 until 2001 when it was amended (S.C. 2001, c. 20, s. 9), the Parliament of Canada Act required that within two months after the date fixed for the return of the writs for a general election, the Governor in Council appoint a commission to determine the adequacy of indemnities and various allowances payable to members of the Senate and the House of Commons and to report back with recommendations, if deemed necessary, within six months. The commission’s report was tabled in the House by a Minister, typically the Government House Leader, and permanently referred to the Standing Committee on Procedure and House Affairs. Following the tabling of each commission’s report, the government would introduce legislation respecting the allowances of Members of Parliament. The last such report was tabled in the House on May 29, 2001 (Journals, p. 449).

[424] Parliament of Canada Act, R.S. 1985, c. P‑1, ss. 62.1 to 62.3. The amount of the additional salary varies with the position and commences with the date of appointment. See also Salaries Act, R.S. 1985, c. S-3, s. 4.1.

[425] Parliament of Canada Act, R.S. 1985, c. P‑1, ss. 55.1(2)(b) and 67.1; Salaries Act, R.S. 1985, c. S‑3, s. 4.2. This index is published by the Department of Human Resources and Social Development Canada within three months of the end of the calendar year. The salaries are rounded down to the nearest hundred dollars. See the remarks of Tony Valeri (Government House Leader) at second reading of Bill C-30, An Act to amend the Parliament of Canada Act and the Salaries Act and to make consequential amendments to other acts, on December 8, 2004 (Debates, pp. 2461-3).

[426] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 55(2).

[427] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 69. The additional salaries of certain House Officers (the Speaker, the Deputy Speaker, leaders and House Leaders of opposition parties and the Chief Whips of all parties) and positions (Prime Minister and Ministers) also continue through dissolution.

[428] Debates, June 25, 1952, pp. 3678‑80.

[429] R.S. 1985, c. M‑5, ss. 16 and 17. Since 2001, Members contribute 7 percent of their sessional allowance towards their retirement benefits. Members receiving additional salaries or allowances for extra duties such as House Officers, Whips, Ministers and Parliamentary Secretaries may contribute 7 percent of their additional allowances. Contributions under the Act are ordinarily mandatory, but were made optional for Members of the Thirty‑Fifth Parliament (1994‑97) (S.C. 1995, c. 30, s. 2). In 1998, amendments to the Members of Parliament Retiring Allowance Act permitted Members who opted out of the pension plan during the Thirty‑Fifth Parliament to opt back in (S.C. 1998, c. 23, s. 10). For Members who chose not to opt back in, a supplementary severance allowance is provided. In 2000, the Act was amended to make contributions again mandatory and to permit those Members who had opted out of the plan to buy back their years of service (S.C. 2000, c. 27). See the remarks of Don Boudria (Government House Leader) at second reading of Bill C-37, An Act to amend the Parliament of Canada Act and the Members of Parliament Retiring Allowances Act (Debates, June 12, 2000, pp. 7851‑4).

[430] Members of Parliament Retiring Allowance Act, R.S. 1985, c. M‑5, s. 18. The withdrawal allowance is the return of the pension contributions plus interest.

[431] Parliament of Canada Act, R.S. 1985, c. P‑1, ss. 70 and 71.

[432] R.S. 1985, c. P‑1, s. 52.5(1)(b). For further information on the Board of Internal Economy, see Chapter 6, “The Physical and Administrative Setting”.

[433] By‑laws of the Board of Internal Economy of the House of Commons, By‑law 101.

[434] House Officers include leaders of parties, House Leaders, Whips, the Speaker and other Presiding Officers, former Prime Ministers and caucus Chairs (By‑laws of the Board of Internal Economy of the House of Commons, By-law 302).

[435] Electoral and geographic supplements, where applicable, are made available to Members and are integrated into the Member’s Office Budget. The electoral supplement is a graduated supplement available to Members who represent densely populated constituencies where the number of electors exceeds 70,000. The geographic supplement is also a graduated supplement available to Members who represent constituencies where the geographic area to be served is 500 sq. km. or more. See By‑laws of the Board of Internal Economy of the House of Commons, By‑law 501. In 2004, the Standing Committee on Procedure and House Affairs recommended that the Board of Internal Economy review the resources needed by Members representing rural or remote ridings according to a formula that accounts for riding size, riding population and the provincial quotient (Seventeenth Report of the Standing Committee on Procedure and House Affairs, presented to the House on April 2, 2004 (Journals, p. 264)).

[436] S.C. 2000, c. 9.

[437] In 2001, Deborah Grey (Edmonton North) rose on a question of privilege claiming that her password-protected computer files which had been stored on the Alliance server in a group named “CA Leader”, a position the Member no longer held, had been frozen and shut down by the Canadian Alliance. Furthermore, she argued that without negotiation or representation from her office, the House of Commons Information Services Directorate had given permission to a staff member of the Alliance Whip’s Office to access her computer files. The Member believed that there had been an infringement of her responsibilities as a Member and she asked the Speaker to respond to her concerns (Debates, September 27, 2001, pp. 5672-4). Speaker Milliken found cause for disquiet in the fact that an officer of the Alliance, on the request of the Canadian Alliance Whip, was granted access to the disputed files to review and determine their appropriate disposition. The Speaker added that while this error might well have been an honest mistake, the fact remained that the action taken could have been viewed as potentially damaging to the Member’s ability to represent her constituents. Subsequently, he directed that the remaining disputed files being held on the Alliance server be returned immediately to the Member. Furthermore, he directed the Administration of the House to establish new protocols to ensure that files and data belonging to Members, including caucus officers, be kept as originally intended on Members’ servers and not on caucus servers (Debates, October 15, 2001, pp. 6081-2).

[438] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 52.6(1). In its Fourth Report presented to the House and concurred in on June 1, 1990, the Special Committee on the Review of the Parliament of Canada Act proposed amendments to the Act to clarify the jurisdiction and the authority of the Board of Internal Economy (Journals, pp. 1797‑804). In particular, the Special Committee wanted to ensure that Members would not be exposed to charges or proceedings based on a misunderstanding of the nature of their work or the structure and rules of the House of Commons.

[439] By‑laws of the Board of Internal Economy of the House of Commons, By-law 102.

[440] In 1913, secretarial assistance was first made available to Members for a few days at a time. Beginning in 1916, Members shared a pool of secretaries who were laid off during periods of recess and dissolution. In 1958, secretaries became dedicated to individual Members. In 1968, each Member was authorized to hire one full‑time secretary. In 1974, a second full‑time secretary was authorized for each Member. The same year, constituency offices were established. In 1978, each Member received a staff budget of $58,000, including at least $12,000 for constituency staff, to be used at the Member’s discretion for staffing requirements. A maximum annual salary and the terms and conditions of employment are set down in the By‑laws of the Board of Internal Economy of the House of Commons, By‑law 501.

[441] By‑laws of the Board of Internal Economy of the House of Commons, By-law 301. The Board has established three categories of employees for Members and House Officers: regular employees (who are employed full-time or part-time for a period of more than six months); short‑term employees (who are employed for six months or less, either full-time or part-time); and on-call employees (who are employed as needed).

[442] Canada Post Corporation Act, R.S. 1985, c. C‑10, s. 35(2) and (3). On occasion, questions of privilege have been raised alleging the misuse of these privileges. The Speaker has ruled that the breach of mailing and householder guidelines does not obstruct in any way a Member from carrying out the activities for which he or she was elected (Debates, March 18, 1987, pp. 4301‑2; April 13, 1989, p. 458; December 4, 2008, pp. 605‑6). The Chair has indicated, however, that a question of privilege could exist if the content of the communication sent out under the frank “worked against the right of Members to free expression and the carrying out of their obligations as Members” (Debates, October 16, 1986, pp. 405‑6). In the spring of 2005, a question of privilege was raised by Brian Masse (Windsor West) about the distribution in his riding by another Member of inaccurate and misleading information in a bulk mailing. Speaker Milliken ruled that the distribution of misleading information may have affected that Member’s ability to function and unjustly damaged his reputation with voters in his riding. He found the matter to be prima facie and it was referred to the Standing Committee on Procedure and House Affairs (Journals, April 18, 2005, pp. 642, 645, Debates, pp. 5214-5). The Committee reported back that the Member’s privileges had been infringed but inadvertently because of an error in labelling at the Post Office (Thirty-Eighth Report of the Standing Committee on Procedure and House Affairs, presented to the House on May 11, 2005 (Journals, p. 738)). Three additional questions of privilege were raised that spring by Members regarding householders, other mailings, and misuse of franking privileges. In each instance, the Speaker felt that further investigation was warranted and thus ruled that there was a prima facie case of privilege; the matters were referred to committee (Debates, May 3, 2005, pp. 5548-9, 5584-5; May 10, 2005, pp. 5885-9). The Procedure and House Affairs Committee considered the three cases together and reported back that the Members’ privileges had not been breached (Forty-Fourth Report of the Standing Committee on Procedure and House Affairs, presented to the House on June 22, 2005 (Journals, p. 958)). A similar question of privilege was raised in October 2005 and again the Speaker found a prima facie case of privilege (Debates, October 27, 2005, pp. 9190-3; November 3, 2005, pp. 9489‑90). The House defeated the motion to refer the matter to committee (Journals, November 15, 2005, pp. 1273-4). See also Debates, April 23, 1990, pp. 10522‑8 and May 17, 1990, pp. 11561‑3 where a question of privilege was raised alleging the misuse of parliamentary stationery by a former Member. The Speaker ruled that the matter was arguably one of contempt rather than privilege. For further information, see Chapter 3, “Privileges and Immunities”.

[443] Canada Post Corporation Act, R.S. 1985, c. C‑10, s. 35(5).

[444] By‑laws of the Board of Internal Economy of the House of Commons, By‑law 303.

[445] Travel provisions have changed dramatically since Confederation. In 1867, travel expenses were authorized at $.10 per mile for a return trip, once per session, between Ottawa and the constituency and in 1903, free rail transportation, without limitation, was made available to Members, their spouses and dependent children. Access to free rail transportation ended as of July 1, 1996 with the repeal of the Canadian National Railway Act. Nonetheless, Members, their spouses and dependants are entitled to free VIA train transportation in Canada in accordance with VIA Rail Canada’s policy. These rail travel privileges cease as of the date of dissolution. For information on air transportation provisions, which were first authorized in 1948, see Commission to Review Allowances of Members of Parliament, Democratic Ideals and Financial Realities: Paying Representatives in the 21st Century, Ottawa: Minister of Supply and Services Canada, 1994, pp. 57‑9.

[446] By‑laws of the Board of Internal Economy of the House of Commons, By‑law 305. For example, mailing, franking, and householder production services are only available for 10 days following a dissolution of Parliament.

[447] By‑laws of the Board of Internal Economy of the House of Commons, By-law 305.

[448] By‑laws of the Board of Internal Economy of the House of Commons, By-law 102. This report is tabled at the same time as the Public Accounts of Canada, typically in the fall. See, for example, Journals, September 28, 2006, p. 469; October 17, 2007, p. 8.

Move Up

 

Once elected, Members are expected to serve for the duration of a Parliament. Nonetheless, vacancies in representation may, and often do, occur. A person ceases to be a Member of the House of Commons when:

*       that person dies;

*       that person resigns his or her seat;

*       that person has accepted an office of profit or emolument under the Crown;

*       that person has been elected to sit in a provincial or territorial legislative assembly or on a municipal council;

*       the Member’s election has been overturned in accordance with the Canada Elections Act; or

*       the House has, by order, declared that the Member’s seat is vacant and has ordered the Speaker to address a warrant to the Chief Electoral Officer for the issue of a writ of election for a new Member.

*   Death of a Member

Should a Member die while in office, a Member may rise in his or her place and advise the House of the death;[449] alternatively, two Members may notify the Speaker in writing.[450] On being informed of the vacancy, the Speaker advises the House, typically at the beginning of the sitting, that a communication has been received giving notice of a vacancy in representation and that a warrant has been addressed to the Chief Electoral Officer for the issue of a writ for the election.[451]

In the absence of the Speaker, or if there is no Speaker, or if the seat vacated is that of the Speaker, two Members may alert the Chief Electoral Officer in writing of the death of the Member. The Chief Electoral Officer is then authorized to issue a new writ for the election of a Member to fill the vacancy.[452]

Death of a Member Following a General Election

If, following a general election but before the first session of the new Parliament and before the election of a Speaker, a vacancy occurs in the representation of the House because of the death of a Member, any two Members may alert the Chief Electoral Officer in writing of this vacancy.[453] The Chief Electoral Officer is then authorized to issue a new writ for the election of a Member to fill the vacancy. On the opening day of the first session, after the election of a Speaker and after the House has returned from hearing the Speech from the Throne in the Senate, the House is advised of the vacancy at some point during the day’s proceedings.[454]

*   Resignation of a Member

A Member may notify the Speaker of his or her intention to resign his or her seat immediately by making a statement on the floor of the House.[455] Following this announcement, the Speaker addresses a warrant to the Chief Electoral Officer for the issue of a writ for the election of a Member to fill the vacancy.[456] A Member may also resign his or her seat by delivering to the Speaker a written declaration of intention to resign signed before two witnesses. On receiving the declaration, the Speaker addresses a warrant to the Chief Electoral Officer for the issue of a writ for the election of a Member to fill the vacancy.[457]

A Member who wishes to resign when there is no Speaker or when the Speaker is absent from Canada may deliver to any two Members his or her signed declaration of intention to resign. The same applies when a Speaker wishes to resign as a Member.[458] On receiving the declaration, these two Members address a warrant to the Chief Electoral Officer for the issue of a writ for the election of a Member to fill the vacancy.[459]

Once a Member has tendered his or her resignation, the seat is deemed to be vacated and the individual ceases to be a Member of Parliament.[460] No Member, however, may tender his or her resignation while his or her election is being contested or until after the expiration of the time during which the election may be contested on grounds other than corruption or bribery.[461]

Acceptance of an Office of Profit or Emolument Under the Crown

No person may hold an office of profit or of emolument under the Crown and become or remain a Member of Parliament. Thus, the seat of a Member who has accepted an appointment to the Senate, the office of the Governor General, a judgeship or any other such public office is automatically vacated.[462] This provision does not apply to Members who occupy positions as Ministers or who are appointed to the Ministry in the course of a session.[463] In the event a Member accepts an office after a general election but before Parliament first meets, any other Member may notify the Chief Electoral Officer of the vacancy. The Chief Electoral Officer will then issue a writ for an election of a Member to fill the vacancy.[464]

Election to a Provincial Legislature or Municipal Council

No Member may be elected to a provincial or territorial legislature or municipal council and remain a Member of Parliament.[465] In most provinces and territories, Members of the House of Commons are disqualified from being nominated as a candidate to a provincial or territorial legislature unless they first resign their seat before the close of nominations for the election.[466] In some provinces Members are also prohibited from seeking election to a municipal council.[467] As soon as the Member has resigned his or her seat, the Speaker issues a warrant to the Chief Electoral Officer to hold an election to fill the vacancy.

*   Contested Election Result

A vacancy in the representation of the House may occur as a result of a contested election. An election may be contested (i.e., challenged) if there are allegations that irregularities affected the outcome of the election in a particular riding or if there are grounds to believe a candidate was not eligible to seek election under section 65 of the Canada Elections Act.[468] If the election is declared null and void by a provincial court, or by the Supreme Court of Canada if an appeal was filed, the return of the person first declared elected is voided and the Speaker is advised accordingly.[469] In this case, the Speaker informs the House of the decision and then addresses a warrant to the Chief Electoral Officer to issue a writ for the election of a Member to fill the vacancy.[470]

*   Expulsion

Once a person is elected to the House of Commons, there are no constitutional provisions and few statutory provisions for removal of that Member from office. The statutory provisions rendering a Member ineligible to sit or vote do not automatically cause the seat of that Member to become vacant.[471] By virtue of parliamentary privilege, only the House has the inherent right to decide matters affecting its own membership. Indeed, the House decides for itself if a Member should be permitted to sit on committees, receive a salary or even be allowed to keep his or her seat.[472]

The power of the House to expel one of its Members is derived from its traditional authority to determine whether a Member is qualified to sit. A criminal conviction is not necessary for the House to expel a Member; the House may judge a Member unworthy to sit in the Chamber for any conduct unbecoming the character of a Member. Even the laying of a criminal charge against a Member has no effect on his or her eligibility to remain in office. If convicted of an indictable offence, a formal resolution of the House is still required to unseat a Member.[473] Expulsion terminates the Member’s mandate: the House of Commons declares the seat vacant and orders the Speaker to address a warrant to the Chief Electoral Officer for the issue of a writ of election.[474]

Given that the determination of whether a Member is ineligible to sit and vote is a matter affecting the collective privileges of the House, a motion to expel a Member is initiated without notice and is given precedence over all other House business.[475] When there has been a criminal conviction, the House of Commons has acted only when sufficient evidence against a Member has been tabled (i.e., judgements sentencing the Member and appeals confirming the sentence).[476] Any Member may move a motion to expel a Member and have his or her seat declared vacant.[477] If the motion is adopted, the Speaker addresses a warrant to the Chief Electoral Officer for the issue of a writ of election.

Since Confederation, there have been four cases where Members of the House of Commons were expelled for having committed serious offences.[478] Three cases involved criminal convictions: Louis Riel (Provencher) was expelled twice, in 1874[479] and in 1875,[480] for being a fugitive from justice; and Fred Rose (Cartier) was expelled in 1947 after having been found guilty of conspiracy under the Official Secrets Act.[481] In 1891, Thomas McGreevy (Quebec West) was expelled after having been found guilty of contempt of the authority of the House.[482]

Expulsion does not disqualify a Member from standing for re‑election, unless the cause of the expulsion constitutes in itself a disqualification to seek election to the House (for example, such as being convicted of an illegal or corrupt election practice).[483] Indeed, on two occasions a Member who had been expelled from the House sought re‑election: following his first expulsion from the House in April 1874, Louis Riel was re‑elected in a by‑election in September 1874; Thomas McGreevy was re‑elected to the House in a by‑election on April 17, 1895.[484]



[449] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 28(1). See, for example, Debates, September 19, 1994, pp. 5811‑4; February 3, 1997, pp. 7581‑3.

[450] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 28(1).

[451] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 28(1). See, for example, Debates, November 23, 1989, p. 6067; February 26, 1993, p. 16511; September 20, 1994, p. 5900; February 4, 1997, p. 7615; January 31, 2005, p. 2819; September 26, 2005, p. 7979; September 18, 2006, p. 2867. On December 9, 1998, Shaughnessy Cohen (Windsor–St. Clair) collapsed on the floor of the House of Commons and later died in hospital. The following day, tributes were paid to the Member (Debates, December 10, 1998, pp. 11123‑6) and an entry announcing the vacancy was published in the Journals (December 10, 1998, p. 1431). Four Members have died in the Parliamentary Precinct: Bowman Law during the fire which destroyed the Centre Block (Debates, February 7, 1916, pp. 590‑1); John L. MacDougall (Debates, June 6, 1956, p. 4786); Owen Trainor (Debates, November 28, 1956, pp. 114‑5); and Joseph Gour (Debates, March 24, 1959, p. 2209; March 25, 1959, pp. 2213‑5).

[452] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 28(2).

[453] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 28(2). There have been 10 instances since Confederation where a Member has been elected to the House but has died before the opening of Parliament: Adelbert Edward Hanna (1918); Peter McGibbon (1921); Joseph Marcile (1925); Benoit Michaud (1949); John Ernest McMillan (1949); Gordon Graydon (1953); Azra Clair Casselman (1958); Colin Cameron (1968); Rt. Hon. John Diefenbaker (1979); and John Dahmer (1988).

[454] See, for example, Debates, October 9, 1979, p. 7; December 12, 1988, p. 11. For further information, see Chapter 8, “The Parliamentary Cycle”.

[455] See, for example, Debates, September 24, 1990, p. 13215; October 11, 2002, p. 632. On occasion, Members have announced their intention to resign by making a statement in the House; their official resignation has often occurred weeks later. See, for example, Debates, June 19, 2007, pp. 10830-1; June 20, 2007, pp. 10901-3; December 12, 2007, pp. 2091‑2; June 17, 2008, pp. 7071-2.

[456] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 25(1)(a). See, for example, Journals, September 25, 1990, pp. 975‑6, Debates, p. 13269; Journals, October 11, 2002, p. 62, Debates, p. 633. In the 1990 example, the Speaker informed the House that he had addressed the warrant to the Chief Electoral Officer the day after the Member had announced his resignation in the House.

[457] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 25(1)(b). See, for example, Journals, January 29, 2007, p. 921; February 23, 2007, p. 1065; October 16, 2007, pp. 1-2; April 7, 2008, pp. 654‑5.

[458] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 26(1).

[459] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 26(2). See, for example, Journals, October 1, 1986, p. 25, Debates, p. 15.

[460] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 27(1).

[461] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 27(2).

[462] Parliament of Canada Act, R.S. 1985, c. P‑1, ss. 28(1) and 32(1). See, for example, Debates, October 1, 1986, p. 15 (appointment to the office of Lieutenant Governor of Newfoundland); June 1, 1988, p. 16010 (acceptance of public office); November 23, 1994, p. 8165 (appointment to the Senate); October 12, 1999, p. 6 (acceptance of public office; appointment to the Senate); September 15, 2003, p. 7305 (appointment to the Senate). In 1984, Speaker Sauvé resigned her seat upon her appointment as Governor General. She addressed her resignation letter to the Clerk of the House (Journals, January 16, 1984, p. 72). Following the election of Lloyd Francis as Speaker, the vacancy in the representation for her seat was announced to the House (Journals, January 16, 1984, p. 74).

[463] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 33(2).

[464] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 29. See, for example, Journals, October 9, 1979, pp. 17‑8.

[465] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 23(1). For examples of Members announcing their intention to seek election to a provincial legislature or municipal council, see Debates, February 1, 1993, p. 15167; April 2, 1998, pp. 5718-20; September 20, 2006, pp. 3024-5.

[466] Constitution Act, R.S.B.C. 1996, c. 66, s. 32(b) (British Columbia); Elections Act, R.S.A. 2000, c. E-1, s. 56(e) (Alberta); Legislative Assembly and Executive Council Act, S.S. 2007, c. L-11.3, s. 11(1)(e) (Saskatchewan); Elections Act, C.C.S.M. c. E30, s. 53(2)(a) (Manitoba); Legislative Assembly Act, R.S.O. 1990, c. L.10, s. 7 (Ontario); House of Assembly Act, R.S.N.S. 1989 (1992 Supp.), c. 1, s. 17 (Nova Scotia); Elections Act, R.S.P.E.I. 1988, c. E-11, s. 36(c) and Legislative Assembly Act, R.S.P.E.I. 1988, c. L-7, s. 16(1) (Prince Edward Island); Legislative Assembly Act, R.S.Y. 2002, c. 136, ss. 4 and 5 (Yukon); Elections and Plebiscites Act, S.N.W.T. 2006, c. 15, s. 4(b) (Northwest Territories); Nunavut Elections Act, S.Nu. 2002, c. 17, s. 11(2)(a) (Nunavut). In Quebec and New Brunswick, Members of the House of Commons are not excluded from being nominated but, if elected, they nonetheless cannot sit in the legislature (Election Act, R.S.Q., c. E‑3.3, s. 235(4) (Quebec); Legislative Assembly Act, R.S.N.B. 1973, c. L‑3, s. 22(1) (New Brunswick)). In Newfoundland and Labrador, neither the Elections Act (S.N.L. 1992, c. E-3.1, s. 67) nor the House of Assembly Act (R.S.N.L. 1990, c. H‑10) specifically disqualifies a Member of the House of Commons from being nominated as a candidate at an election.

[467] Municipal Elections Act, S.N.L., 2001, c. M-20.2, s. 5(a) (Newfoundland and Labrador); Municipal Elections Act, 1996, S.O. 1996, c. 32, s. 29(1.1) (Ontario).

[468] S.C. 2000, c. 9, s. 524(1). For further information, see the section in this chapter entitled “Contested Elections”.

[469] Canada Elections Act, S.C. 2000, c. 9, ss. 531(3) and 532(3).

[470]Canada Elections Act, S.C. 2000, c. 9, ss. 531(4) and 532(4); Parliament of Canada Act, R.S. 1985, c. P-1, s. 28(1).

[471] Maingot, J.P.J., Parliamentary Privilege in Canada, 2nd ed., Montreal: House of Commons and McGill-Queen’s University Press, 1997, pp. 22‑3. See also the Canada Elections Act (S.C. 2000, c. 9, s. 502(3)) which stipulates that a person who has been found guilty of an illegal or corrupt practice cannot be elected to or sit and vote in the House of Commons. Similarly, the Criminal Code (R.S. 1985, c. C-46, s. 750) provides that a Member convicted of an indictable offence, for which the sentence is two or more years of imprisonment, may not be elected to or sit or vote in the House. Nonetheless, neither statute contains provisions declaring the Member’s seat vacant.

[472] Maingot, 2nd ed., pp. 188, 247. See also Speaker Lamoureux’s ruling, Debates, March 1, 1966, pp. 1939‑40.

[473] Maingot, 2nd ed., p. 188.

[474] See, for example, Journals, April 16, 1874, p. 71; February 24, 1875, pp. 124‑5; September 29, 1891, p. 561; January 30, 1947, p. 8.

[475] Maingot, 2nd ed., p. 247. Standing Order 20 permits a Member whose conduct is in question to make a statement and then withdraw from the Chamber while the motion respecting him or her is being debated.

[476] Maingot, 2nd ed., pp. 188‑9, 212. See, for example, Journals, February 22, 1875, p. 111; January 30, 1947, pp. 4‑8. In 1874, only an indictment for Louis Riel’s arrest was tabled (Journals, March 31, 1874, pp. 11‑2).

[477] In 1989, after giving the required one hour’s notice to the Speaker, Svend Robinson (Burnaby–Kingsway) rose on a question of privilege with respect to the conduct of Richard Grisé (Chambly) who had pleaded guilty to charges of breach of trust and fraud. Mr. Robinson stated that if the Speaker found the matter to be prima facie, he would move a motion that Mr. Grisé be expelled from the House and his seat declared vacant (Debates, May 25, 1989, pp. 2119-29). Speaker Fraser took the matter under advisement. Before he could render his decision, Mr. Grisé resigned his seat. In announcing the vacancy, the Speaker read into the record Mr. Grisé’s letter of resignation (Debates, May 30, 1989, p. 2321).

[478] For further information, see Chapter 3, “Privileges and Immunities”. A Member was expelled from the Nova Scotia Legislative Assembly in 1986 by reason of the Member’s conviction on four counts of using forged documents in respect of money received by him in his capacity as a Member. In that case, the Court held that the Legislature had the power to expel a Member by resolution and that this was not normally reviewable by the Courts. It was also held that the establishment and enforcement of proper standards for Members of the House was not a breach of section 3 of the Charter of Rights and Freedoms (MacLean v. Nova Scotia (Attorney General) (1987), 35 D.L.R. (4th) 306 (N.S.S.C.)). See also Holtby, J., “The Legislature, The Charter and Billy Joe MacLean”, Canadian Parliamentary Review, Vol. 10, No. 1, Spring 1987, pp. 12-4. In 1991, a Member of the New Brunswick Legislative Assembly was expelled after he was convicted of committing an illegal practice under the New Brunswick Elections Act (the Member had induced an underage person to vote in the election, knowing that she was not eligible to vote). The appellant challenged the constitutionality of certain sections of the Election Act which prevented him from voting at any election or being elected to or sitting in the Assembly for five years. The Supreme Court upheld that the Elections Act was valid legislation and that the Member’s disqualification was a legitimate exercise of parliamentary privilege (Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876).

[479] In April 1874, the House ordered that Louis Riel, “having been charged with murder, and a Bill of Indictment for said offence having been found against him, and warrants issued for his apprehension, and the said Louis Riel having fled from justice, and having failed to obey an Order of this House that he should attend in his place on Thursday, the 9th day of April, 1874, be expelled [from] this House”. A second motion was subsequently adopted ordering the Speaker to issue a warrant for an election to fill the vacancy. See Journals, March 31, 1874, pp. 10‑3; April 1, 1874, pp. 17‑8; April 8, 1874, pp. 25‑6; April 9, 1874, pp. 32‑9; April 15, 1874, pp. 64‑5; April 16, 1874, pp. 67‑71.

[480] In the by‑election held to fill the vacancy resulting from the expulsion of Louis Riel, he was once again elected. On February 22, 1875, the Prime Minister tabled a court ruling finding Mr. Riel guilty of murder (Journals, p. 111). Two days later, motions were adopted to effect the expulsion of Mr. Riel. First, the Prime Minister moved that the court ruling tabled two days earlier be read. After the motion was adopted, the Clerk read the judgement into the record (Journals, February 24, 1875, pp. 118‑22). The Prime Minister then moved that “it appears from the said Record that Louis Riel, a Member of this House, has been adjudged an outlaw for felony”. The House adopted the motion. This motion was followed by another motion ordering the Speaker to issue a warrant for a new writ of election (Journals, February 24, 1875, pp. 122‑5).

[481] On January 30, 1947, the Speaker tabled court judgements, including copies of court of appeal judgements, in connection with the imprisonment of Fred Rose (Cartier). The Prime Minister then moved that the Member had become incapable of fulfilling his parliamentary duties and that the Speaker be ordered to issue a warrant to the Chief Electoral Officer to make out a writ of election to fill the vacancy. The motion was adopted (Journals, January 30, 1947, pp. 4‑8).

[482] In this instance, there was no conviction before a criminal court. In 1891, a private Member moved a motion to establish a select committee to enquire into allegations of corruption against the Member for Quebec West, Thomas McGreevy (Journals, May 11, 1891, pp. 55‑60). The Member refused to answer questions in the committee and the committee subsequently found the Member guilty of the charges made against him (Journals, September 16, 1891, p. 512). After adopting the committee’s report (Journals, September 21, 1891, pp. 522‑3; September 22, 1891, p. 523; September 24, 1891, pp. 527‑31), the House resolved, on September 29, 1891, that Thomas McGreevy be expelled from the House. This resolution was followed by the adoption of a motion ordering the Speaker to issue a new writ of election (Journals, September 29, 1891, p. 561).

[483] Bourinot, 4th ed., p. 64. Any disqualification imposed by the Criminal Code ceases when the sentence has been served or a pardon has been granted (Maingot, 2nd ed., p. 212).

[484] Unlike Louis Riel, Thomas McGreevy did not suffer a further expulsion, but was defeated in the general election of 1896.

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