Constitution and Statutes
Relationship Between Procedural Sources
The authority of the Chair is no greater
than the House wants it to be. When the rules are clear and offer precise
guidance to the Speaker, the authority of the Chair is absolute and
unquestioned, for this is the will of the House. On the other hand, when there
are no rules to fall back on, the Speaker must proceed very cautiously indeed.
The most the Chair can do is to lay the matter before the House which can then
itself create a new precedent.
Speaker Jeanne Sauvé
(Debates, March 18, 1982, p. 15556)
Parliamentary procedure has been described as a “means of reaching
decisions on when and how power shall be used”.
According to such a definition, procedure is at once the “means” used to
circumscribe the use of power and a “process” that legitimizes the exercise of,
and opposition to, power. Parliamentary procedure has also been described as “a
combination of two elements, the traditional and the democratic”.
In other words, parliamentary procedure based on the Westminster model stems
not only from an understanding and acceptance of how things have been done in
the past, but is embedded in a particular culture that evolves along democratic
principles. These principles, known as “parliamentary law”, were summarized in
the following manner by John George Bourinot, an authority on parliamentary
procedure and Clerk of the Canadian House of Commons from 1880 to 1902:
The great principles that lie at the basis
of English parliamentary law have … been always kept steadily in view
by the Canadian legislatures; these are: To protect the minority and restrain
the improvidence and tyranny of the majority, to secure the transaction of
public business in a decent and orderly manner, to enable every member to
express his opinions within those limits necessary to preserve decorum and
prevent an unnecessary waste of time, to give full opportunity for the
consideration of every measure, and to prevent any legislative action being
taken heedlessly and upon sudden impulse.
Commentators of Canadian parliamentary
history have argued that, over the years, the ideal of “protecting the
minority” has had to adapt to the modern dictates of an efficient legislative
Closure and time allocation rules, adopted in 1913 and 1969 respectively, as
well as other rules adopted by the House, have long since given the government
majority greater ability to advance its legislative program over the objections
of the minority. Nevertheless, it remains true that parliamentary procedure is
intended to ensure that there is a balance between the government’s need to get
its business through the House, and the opposition’s responsibility to debate
that business without completely immobilizing the proceedings of the House.
In short, debate in the House is necessary, but it should lead to a decision in
a reasonable time.
The proceedings of the House of Commons are
regulated by a vast body of parliamentary rules and practices—practice being
that part of procedure which developed spontaneously and became regarded as the
usual or regular way of proceeding, though not written into the rules (the
As described in Chapter 1, many of these rules and practices originated in
the United Kingdom, while others were inspired by pre-Confederation legislative
and subsequently adopted in Canada. According to May, “some [of the
forms and rules of practice] were no doubt invented in Parliament itself, but
others have been traced to analogies in the medieval courts of law and in the
councils of the Church”.
Some rules have remained virtually unchanged for the last four hundred years;
others have evolved to become, in time, conventional practices. Finally, the
origins of some of the earliest practices of parliamentary procedure “are lost
As will be seen in this chapter, the
parliamentary procedures and practices of the House of Commons are founded on
the Constitution and statutes, the Standing Orders of the House, Speakers’
rulings and House practice.
 Franks, C.E.S., The Parliament of Canada, Toronto: University of Toronto Press, 1987, p. 116.
 Wilding, N. and Laundy, P., An Encyclopaedia of Parliament,
4th ed., London: Cassell & Company Ltd., 1972, p. 605.
 Black, H.C., Black’s Law Dictionary, 8th ed., edited by
B.A. Garner, St. Paul, Minnesota: Thomson West, 2004, p. 1148,
defines parliamentary law as “[t]he body of rules and precedents governing the
proceedings of legislative bodies and other deliberative assemblies”.
Bourinot, J.G., Parliamentary Procedure and Practice in the Dominion of
Canada, 2nd ed., rev. and enlarged, Montreal: Dawson Brothers,
Publishers, 1892, pp. 258‑9.
 According to C.E.S. Franks, three modern developments have led to a
more rigid set of rules: the ever increasing amount of business before the
House; the Member’s job becoming a full‑time occupation; and the
increasing willingness on the part of the opposition to use dilatory tactics (Franks,
 In 2007, during the minority Thirty-Ninth Parliament (2006‑08),
Speaker Milliken stated: “… neither the political realities of the
moment nor the sheer force of numbers should force us to set aside the values
inherent in the parliamentary conventions and procedures by which we govern our
deliberations” (Debates, March 29, 2007, p. 8136).
 May, T.E., Erskine May’s Treatise on The Law, Privileges,
Proceedings and Usage of Parliament, 23rd ed., edited by Sir W. McKay,
London: LexisNexis UK, 2004, pp. 3‑4.
 In testimony to the validity of pre‑Confederation
experiences, a few days into the First Parliament, a special committee was
appointed to assist the Speaker in framing permanent rules and regulations for
the House and, in its deliberations, was to study the “Rules and Standing
Orders of the Imperial House of Commons, of the Legislative Assembly of the
late Province of Canada, and of the Houses of Assembly of the Provinces of Nova
Scotia and New Brunswick” (Journals, November 15, 1867,
 May, T.E., Erskine May’s Treatise on The Law, Privileges,
Proceedings and Usage of Parliament, 22nd ed., edited by Sir D. Limon
and W.R. McKay, London: Butterworths, 1997, p. 4.
 See, for example, Sir Thomas Smith’s 1560 “De Republica
Anglorum”, which contains an impressive list of procedural rules and practices
that, after more than 430 years, have barely changed. Quoted in Redlich, J., The
Procedure of the House of Commons: A Study of its History and Present Form,
Vol. I, translated by A.E. Steinthal, New York: AMS Press, 1969
(reprint of 1908 ed.), pp. 26‑51.
 Griffith, J.A.G. and Ryle, M., Parliament: Functions,
Practice and Procedures, 2nd ed., edited by R. Blackburn and A. Kennon
with Sir M. Wheeler‑Booth, London: Sweet & Maxwell, 2003,