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Chapter II — Members

Standing Orders [ 151617181920212223 ]

Introduction

Although the presiding officers are bound to maintain the dignity and decorum of the House, a large measure of responsibility for good behaviour rests with the Members themselves. The Standing Orders in this chapter outline these basic responsibilities.

Standing Order 15
Attendance required.
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.

Commentary — Standing Order 15

Attending the sittings of the House when it is in session is only one of a Member’s duties. Because the House sits during prime working hours, scheduling conflicts with other parliamentary or official commitments (committee meetings for example) frequently prevent Members from being present in the House at all times. Indeed, the Chair has often discouraged any references to the absence of any individual Member because “there are many places that Members have to be in order to carry out all of the obligations that go with their office”. [1]

Nevertheless, to prevent abuses by anyone who might fail to attend for long periods without adequate justification, the Parliament of Canada Act provides for deductions for non-attendance from the Member’s sessional indemnity. [2]

Historical Summary — Standing Order 15

Prior to 1994, this rule read that every Member was bound to attend the service of the House “unless leave of absence has been given him or her by the House”. [3] The requirement for leave was strictly enforced in the decade following 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 also commonly given. [4] The need to attend was taken so seriously that on one occasion in 1873 when the Prime Minister, Sir John A. Macdonald, was absent, an order was issued that he be taken into custody and brought to the Bar of the House. He duly appeared but was quickly released when a colleague, Charles Tupper, M.D., produced a medical certificate saying the Prime Minister had been absent to preserve his health. [5]

After 1878, however, the rule was not applied; the House apparently chose instead to rely on statutory provisions which provided for monetary penalties for non-attendance. [6] Nevertheless, at various times thereafter attempts were made to revive the rule. In 1906 for instance, the establishment of a formal register of attendance was proposed but quickly rejected. [7] Similarly, a 1964 proposal to enforce committee attendance [8] failed to gain House approval. On numerous occasions the rule was cited in the House in reference to the absence of particular Members, again to no avail. [9]

Though the Standing Order was clearly obsolete, [10] it was not until 1994 that the present wording was adopted. [11] The requirement for a leave of absence was removed and it was formally acknowledged that Members could be attending to parliamentary business without being present in the House.

Standing Order 16(1)
Decorum.
16.
(1)
When the Speaker is putting a question, no Member shall enter, walk out of or across the House, or make any noise or disturbance.

Commentary — Standing Order 16(1)

In order that Members may be able to vote having heard the question, and so that during a recorded division the names can be called by the Clerk in an orderly manner, Members are not allowed to enter, leave or move about the Chamber, or engage in noisy behaviour of any kind, from the time the Speaker begins to put the question until the announcement of the results of the vote is made. Practice has further held that Members who enter the Chamber while the question is being put, or after it has been put, cannot have their vote counted. [1] It has also happened that Members’ votes have been questioned because they left the Chamber immediately after voting (before the vote results were announced by the Clerk), [2] or because they did not remain seated throughout the process. [3]

Historical Summary — Standing Order 16(1)

Until 1955, the matter of decorum during the putting of a question was not entirely addressed by the Standing Order. In that year the prohibition against entering the House while the question was being put was added to the rule, which had hitherto remained unchanged since 1867. This omission had not, however, prevented a dual practice from evolving, both on the matter of walking out of or across the House, and on the matter of entering the House, while the question was being put.

As early as 1869, the propriety of Members leaving before the announcement of vote results was raised in the House by Alexander Mackenzie. [4] In 1881, the Speaker’s attention was called to a Member crawling out of the House before the end of a division; the Member’s vote was disallowed because it was felt he had contravened the rule. [5] A few years later, in 1889, the validity of another Member’s vote was called into question when he too left the Chamber before the result had been announced. This time, however, the Speaker intimated that while the rules of decorum had been breached, “In order to deprive a member of his right to vote there must be a clear disposition of the law, and certainly I would not undertake to reject the vote of a member on that rule.” [6]

At about the same time, questions were being raised about the propriety of Members who voted after entering the House mid-way through, or after the putting of the question. In an 1891 case, after two Members’ votes had been questioned for this reason, the Speaker took the view that, “If a member is not present in the House when the question is put by the Speaker, he cannot have his vote recorded.” [7]

With these various rulings, the House settled on a practice that essentially required Members to remain in their seats throughout the taking of a recorded division. Members who left or walked across the Chamber during the putting of the question or the taking of the vote were called to order. Those entering late were asked whether or not they had heard the Speaker put the question in its entirety; [8] an answer in the negative led to a Member’s vote being struck from the division list. [9] In the years that followed, the practice remained the same, with the Speaker occasionally reminding Members to maintain the decorum necessary for the Clerk to count the names. [10]

In 1955, apparently to make the rule consistent with the practice at least as far as decorum requirements were concerned, the prohibition against entry during the putting of the question was finally included in the then Standing Order 12(2) (now 16(1)). [11] There are several post-1955 examples of breaches of decorum, both during the putting of a question and during the count. On several occasions, Members’ votes were disallowed when they entered late. [12] On other occasions, when disorder occurred while the names were being called, the Speaker merely drew the attention of the House to the rule so that it might in future be better observed. [13] Speakers have also threatened to strike the votes of Members who persist in disorderly conduct during the taking of divisions. [14] In at least one case, a Member was formally granted permission to leave before the vote result was announced. [15] Extraordinarily lengthy voting sessions have also led to several breaches of decorum. [16]

Standing Order 16(2), (3) and (4)
 
16.
(2)
When a Member is speaking, no Member shall pass between that Member and the Chair, nor interrupt him or her, except to raise a point of order.
 
 
(3)
No Member may pass between the Chair and the Table, nor between the Chair and the Mace when the Mace has been taken off the Table by the Sergeant-at-Arms.
 
 
(4)
When the House adjourns, Members shall keep their seats until the Speaker has left the Chair.

Commentary — Standing Order 16(2), (3) and (4)

Sections (2), (3) and (4) regulate the behaviour of Members during debate and when the House rises at the end of a sitting. They ensure speeches are not interrupted unnecessarily and that House proceedings generally are carried out with a fitting degree of ceremonial order.

During debate, Members are not allowed to interrupt the Member speaking, unless it is to raise a point of order. Despite this interdiction, it sometimes happens that a Member addressing the House voluntarily gives way to another Member who may wish clarification of a matter raised in the former’s speech or to ask a specific question arising out of it. The Member allowing the question is under no obligation to reply, and is often reluctant to do so, as the time taken up in this way is subtracted from his or her time for speaking. Most often, such questions are asked at the end of those speeches, within the period set out for this purpose (see Standing Order 43). At the same time, the Speaker usually turns a blind eye to the many incidental interruptions, such as applause or shouts of approval or disapproval or heckling that sometimes punctuate speeches. Excessive interruptions, however, are swiftly curtailed, particularly when the Member speaking requests the assistance of the Chair. The Speaker similarly maintains order by reprimanding Members who distract the Member speaking by passing between him or her and the Chair. [1]

The Mace rests on the Table while the House is sitting, and when the House rises, it is carried on the shoulder of the Sergeant-at-Arms, who precedes the Speaker in leaving the Chamber. In both cases, nothing should come between the Speaker and the symbol of his or her authority; hence the prohibition against Members passing between the Chair and the Mace. In addition to its symbolic importance, this rule also serves the interests of decorum and order, which, under section (4), further obliges Members to remain seated when the Speaker leaves the Chair at the end of a sitting.

Historical Summary — Standing Order 16(2), (3) and (4)

Although the rule prohibiting interruptions during a Member’s speech (unless the Member speaking voluntarily gives way to allow a question) has existed virtually unchanged since 1867, it has from the beginning been routinely ignored. Interjections, heckling and worse were an integral part of the boisterous, noisy atmosphere characteristic of the nineteenth century House. [2] With time, the number of such interruptions declined, if only slightly, as Members began to complain. In 1910, for instance, a Member was interrupted several times before he finally wondered aloud “whether it is of set purpose, to break up my argument, that I am interrupted.” [3] Although there were many such instances, and despite successive Speakers’ reprimands, interruptions persisted, almost as an accepted characteristic of the House’s ambiance. However, in 1982, as a result of a general desire to be able to question the Member speaking, the House agreed to a question-and-comment period after most speeches, and the number of questions posed during speeches subsequently declined (see Standing Order 43). Other interjections, such as heckling, continued and even today routinely attract the Speaker’s attention. [4]

There are few early references in the Debates to Members being reprimanded for passing between the Member speaking and the Chair, though many undoubtedly did. [5] Instead, one must look to more recent sessions for examples of the Speaker calling attention to this particular breach of the rule. [6] Similarly, although decorum has certainly improved since the early years after Confederation, the rule against passing between the Chair and the Mace has not always been observed, even in modern times. [7]

As to Members remaining seated “until the Speaker has left the Chair”, the generally raucous demeanour of the early House again allows the assumption that the rule was frequently broken. In 1906, when Sir Wilfrid Laurier alluded to the confusion caused by Members hurrying out at the adjournment, his comments were quickly endorsed by Robert Borden, who added that “it would be more becoming if members would remain in the House and thus pay due respect to the Speaker instead of leaving their seats and scurrying out in advance.” [8] Even today it is rare that Members remain seated until the Speaker and Mace have left the Chamber, although out of respect, most Members do pause, whether standing or sitting, during the procession out of the Chamber. In one particularly serious breach in 1991, a Member grabbed the Mace as it was carried out of the Chamber at the hour of adjournment. The Speaker found this to be a prima facie breach of privilege and a motion was adopted to call the Member to the Bar of the House to be reprimanded by the Speaker. [9]

Sections (3) and (4), both of which have existed since 1867, have never been amended.

Standing Order 17
Rising to be recognized.
17.
Every Member desiring to speak is to rise in his or her place, except during proceedings pursuant to Standing Orders 38(5), 52 and 53.1, and address the Speaker.

Commentary — Standing Order 17

This Standing Order lists three conditions, each of which must be met by any Member wishing to participate in debate. A fourth unwritten requirement concerns the attire of Members.

The first two conditions require Members both to stand and to be in their designated place while speaking. These stipulations are a practical necessity and are designed to avoid the difficulties Chair occupants might experience in recognizing Members if each Member were free to speak while seated in a different place every time he or she addressed the House. Exceptions to these conditions have occurred, usually when a Member is ill, injured or disabled. [1] The requirement to be in one’s seat does not apply in Committee of the Whole, during take-note debates under Standing Order 53.1, during emergency debates (S.O. 52) or during proceedings on the adjournment motion (S.O. 38(5)). [2]

The third condition is that Members are required to address the Speaker during debate. In this way Members are perhaps less apt to engage in direct heated exchanges and personal attacks when their comments are made to the Speaker rather than to another Member.

Finally, there is also an unwritten rule requiring a jacket and tie as standard dress for male Members. Successive Speakers have rigourously upheld the dress code, although not indiscriminately. [3] No specific dress code, written or unwritten, exists for female Members.

Historical Summary — Standing Order 17

A form of this rule has been in place since 1867 and only recently has it been modified. The degree to which its conditions have been applied (and been adhered to) has varied only slightly. In the first years after Confederation, Members were careful to address their remarks to the House through the Speaker while standing in their places. This contrasted with a more boisterous pre-Confederation atmosphere, where in one case a Member was reprimanded for not addressing the Chair and for crossing from one side of the House to the other while speaking. [4] Nonetheless, Members sometimes forgot the correct procedure. In 1881 for instance, a Member was indignant at having lost the floor because he had left his seat to get a glass of water, a Page having been delayed in bringing it. The Member claimed he had “the right to speak from no matter what part of the House”, even from the gallery. The Speaker, reading the rule aloud, quickly corrected the Member and debate resumed with another Member taking the floor. [5]

Members have usually observed the condition that speeches must be made while standing. Nonetheless, throughout Canadian parliamentary history, Speakers have reminded Members that making observations while seated is not allowed. [6] At the same time, exceptions to the rule have been made for Members unable to stand due to illness, injury or disability. [7] In one case, a Member was even permitted to read questions for a colleague who, though present, could not speak owing to a bronchial infection. [8]

Members have been less consistent in observing the condition that they speak from their places. [9] Often, Members have been prompted by a remark across the aisle to rise while not in their place. [10] At other times sheer forgetfulness has led Members to rise from the wrong seat. [11] On at least three occasions consent of the House was granted to Members, during Private Members’ Hour, to move to a seat closer to the centre of the House in order to be better heard. [12] In 2001, the Standing Order was amended so that Members need not be in their assigned seats for take-note debates, emergency debates and adjournment proceedings. It was felt this change would make for a more informal setting and facilitate exchanges between Members. [13]

The condition Members most often violate is the one requiring them to address the Speaker in debate. After 1900, this condition was violated more and more frequently, [14] and even today the Speaker intervenes regularly to remind Members to address their remarks to the Chair. [15]

Until 1994, the Standing Order also contained a rule concerning a dress code, requiring that Members be “uncovered” when they rose in debate. [16] This was clearly anachronistic, as Members had long-since stopped wearing hats in the House. In fact, even in the nineteenth century House, few Members wore hats. As Sir John A. Macdonald put it, “In England the common habit is for Members to wear their hats. In the Canadian Parliament this is not so common, and in the old Province of Lower Canada, French politeness did not allow Members to wear their hats at all.” [17] Still, Members have in recent years donned hats for special occasions, or to bring attention to a problem or issue. [18] In 1983, a Member twice failed to remove her hat when speaking. She explained to the House that she was only shielding her eyes from the blinding television lights, but this argument did not convince the Chair, and the Member had to remove her hat. [19] Even with the recent rule change, hats remain quite uncommon in the House. [20]

Of greater dispute in matters of dress has been the custom requiring male Members to wear a jacket and tie in order to be recognized by the Chair. In earlier days, poor ventilation in hot weather prompted some Members to remove their jackets; each time the Speaker maintained that a jacket should be worn. [21] In recent years, ascots, kilts, t-shirts and other informal or unusual forms of dress have caught the Speaker’s eye as departures from the acceptable standard. [22] While the dress code is strictly enforced during debate, on occasion male Members not wearing a tie have been allowed to vote. [23] As with the requirement to stand while speaking, the Chair has also relaxed the dress code for Members due to illness or injury. [24]

Standing Order 18
Disrespectful or offensive language. Reflection on a vote.
18.
No Member shall speak disrespectfully of the Sovereign, nor of any of the Royal Family, nor of the Governor General or the person administering the Government of Canada; nor use offensive words against either House, or against any Member thereof. No Member may reflect upon any vote of the House, except for the purpose of moving that such vote be rescinded.

Commentary — Standing Order 18

This Standing Order prohibits the use of disrespectful or offensive language in debate and reflections on votes of the House, including the reintroduction of a question already decided.

The first prohibition applies specifically to objectionable language toward the Sovereign, the Royal Family, the Governor General, the Administrator (in the absence of the Governor General), the House of Commons or the Senate as entities, Senators and, finally, Members of the House of Commons. The Sovereign, the Governor General or the person administering the Government of Canada, and the Royal Family are, by their rank and position, entitled to respect from Members. By the same token, to guard the independence of the House, an unwritten rule prohibits references by Members to the Sovereign, Royal Family, Governor General or Administrator, when the intention appears to be to influence or interfere in the work of the House. [1] Disrespectful reflections on the House or Senate as component parts of Parliament are equally unacceptable. Members and Senators, too, are protected by this Standing Order.

What is acceptable depends largely on the circumstances, but personal attacks, insults, obscene language or words which question a Member’s or a Senator’s integrity, honesty, or character are not in order. To reduce the possibility of personal references, convention further requires Members to refer to each other by title, position or constituency name. [2] Likewise, the Senate is usually “the other place”, and Senators, “Members of the other place”, although generally references to Senate debates and Senators are discouraged altogether. [3] A further long-standing practice also protects the judiciary from disrespectful or offensive attacks. [4]

Nonetheless, breaches of the Standing Order do occur. When they do, the Speaker typically intervenes, requesting a correction or withdrawal of the unparliamentary word or phrase, and resorting to naming if the offending Member persists in refusing to retract. [5]

The second prohibition — reflecting on a vote of the House or recalling a question previously decided — applies to all decisions of the House. There is, however, an exception: any Member, by giving due notice of a motion to that effect, may propose that a vote be rescinded. This allows the House to reconsider an earlier resolution or order and, if the original resolution or order is in fact rescinded or discharged, to make a second decision on the same question. [6]

Historical Summary — Standing Order 18

Since Confederation, this Standing Order has repeatedly been breached: first, by the use of objectionable references to persons and institutions listed in the rule or to which the House has considered the rule to apply and second, by reflection on House decisions. Conversely, the Standing Order has rarely been invoked to rescind a vote of the House.

Disrespectful language has been used in reference to the Governor General and both Houses of Parliament. In 1873, when the Governor General was accused of sending despatches to the House “for a purpose”, the Speaker sustained the Prime Minister’s objection that “no Honourable Member had a right to say that the Representative of the Sovereign sent down certain despatches for the purpose of influencing debate.” [7] A few years later the Speaker cautioned a Member who had accused the Governor General of interfering in the dispute between Canada and British Columbia, [8] while in another case a Member was called to order for referring to the Senate as “a useless appendage to the Parliament of this country, a packed body of partisans.” [9] The prohibition against disrespectful language was also extended to include other individuals not specifically mentioned in the rule. Attacks on judges, for instance, have repeatedly been proscribed, [10] and in the late 1950s discourteous references to Lieutenant-Governors were also ruled out of order. [11] Since 1867 it has also been a practice not to refer to the proceedings in the Senate, nor even to refer to the Senate by name, [12] although this practice is less stringently adhered to today. [13]

Offensive references to Senators or Members have been much more frequent. From the earliest days of Confederation, Members have referred to each other and to their fellow parliamentarians in the Senate as “a bag of wind” or “a pompous ass”, and have questioned each other’s character with accusations of lying, spinelessness and clownery. [14] In most cases, Members graciously withdraw such words, but there have been times when the unparliamentary language was not withdrawn and the Speaker had ultimately to name the offending Member as a result. [15] In other cases, unparliamentary language went unchecked, as in the closing minutes of the 1878 session, when the last utterance was “That fellow Smith is the biggest liar I ever met!”, or as in the case of an irreverent comparison between certain Senators and Santa’s reindeer, in December 1983. [16] All these instances have occurred and continue to occur despite a long-established practice of Members addressing each other as “the Member for” or “the Hon. Minister of” or “the Right Hon. Prime Minister” or some other appropriate form of address. [17] Following a number of particularly offensive remarks by certain Members in 1991, the government introduced a motion calling for the Speaker to enforce Standing Order 18 vigorously and calling on all Members to eliminate offensive and abusive language. [18] A special advisory group of Members established during the same time period recommended expanding the Standing Order to include stronger penalties for unparliamentary or discriminatory remarks, but no changes were made. [19]

Reflections on votes of the House, have occurred less frequently. Still, when they have, the Chair has been quick to call attention to them. [20]

Finally, instances of the House rescinding an earlier decision have been infrequent. In one case in 1868, a “motion to rescind” was proposed but later withdrawn. [21] A different procedure — the discharge of an order of the House — was followed a few years later when the House wished to revoke an earlier decision. [22] Journals entries — one an Address to the Governor General for papers, and another an Order for Return — were both rescinded, in 1885 and 1950 respectively. [23]

Standing Order 19
Point of order. Speaker may allow a debate.
19.
Any Member addressing the House, if called to order either by the Speaker or on a point raised by another Member, shall sit down while the point is being stated, after which he or she may explain. The Speaker may permit debate on the point of order before giving a decision, but such debate must be strictly relevant to the point of order taken.

Commentary — Standing Order 19

When a Member addresses the House, he or she is expected to do so in accordance with House rules and practices. Unfortunately, departures from the Standing Orders and customary procedures sometimes occur. When they do, the Speaker is obliged to intervene immediately. [1] Often, however, Members themselves are the first to raise points of order to complain about rule violations. [2] They are able to do so at virtually any time in the proceedings, provided the point of order is raised and concisely argued [3] as soon as the irregularity occurs. [4] Naturally, a point of order breaks the even flow of House proceedings, and when the Member speaking is thus interrupted, he or she must sit down while the point is made, but may respond to it afterwards. A brief debate on the point of order is possible at the Speaker’s discretion but the Chair’s decision, which concludes any discussion, is final. In doubtful cases, Members’ opinions are more likely to be heard and considered before a decision is reached.

Historical Summary — Standing Order 19

As one of the rules carried over at Confederation from the Legislative Assembly of the Province of Canada, Standing Order 19 — Rule 12 in 1867 — came with a meaning and interpretation already familiar to many Members of the newly constituted House: any question of order was to be discussed before the Speaker ruled. [5] However, because the Standing Order had for some time been imprecisely worded, it did not accurately reflect this prevailing custom, nor did it specify who called Members to order. [6] In fact, practice and rule did not coincide for the next 40 years — only in 1906 were the two made consistent in an amended rule. [7] As one Member put it, paraphrasing Shakespeare, “The old rule was more observed in the breach than in the observance.” [8] The change was eventually made because, according to Prime Minister Laurier, “We have thought it better to put it in the rules of the House which may be understood by everybody.” [9] Thus the custom was legitimized: points of order continued to be debated and it was made clear that both the Speaker and other Members could call another Member to order for transgressing the rules. It was perhaps inaccurate in 1906 to suggest that one Member could call another to order for the practice had already evolved to the point where only the Speaker had such authority. It was true that in the early years after Confederation, Members did call each other to order, [10] but this method had given way to the less direct method of Members raising points of order for decision by the Speaker. It was not until 1925 that a special House committee recognized that “This rule seems to state that a Member may be called to order by another Member….” [11] The committee recommended clarification of the rule. The recommendation was eventually adopted in 1927 in another Parliament. [12]

After a period of relative calm, increasingly prolonged discussions on points of order once again began in the early 1980s, and Chair occupants felt compelled to intervene and sometimes to refuse to recognize Members on points of order. [13] These new developments sometimes prompted angry reactions from Members, one of whom was ejected from the House over the issue. [14] In another instance, the Leader of the Opposition was so incensed that he attempted to move a motion essentially critical of the Chair. [15] Despite the pressure from Members, successive Speakers relied more and more on the literal meaning of Standing Order 19 and, while still allowing debates on points of order, limited these considerably. One Speaker declared, “I only have an obligation to hear, on a point of order, the person presenting the point of order…”. [16] Since 1986, however, the Chair has relaxed this approach.

Well before the difficult 1980s period, the Chair had begun to restrict the time when points of order could be raised. Beginning in 1975 for instance, in response to a committee report advocating the change in practice, the Speaker consistently refused to accept points of order during Question Period, a practice which has since been codified in a Standing Order. [17] It happened, as well, that Speakers refused to hear points of order during proceedings on the adjournment motion. [18] Similarly, Members were refused attempting to move motions while rising on a point of order, or attempting through points of order to impede their own motions. [19]

The wording of the Standing Order has not changed since 1927, except for minor consequential, syntax and gender amendments in 1927, 1953 and 1982.

Standing Order 20
When a Member shall withdraw.
20.
If anything shall come in question touching the conduct, election or right of any Member to hold a seat, that Member may make a statement and shall withdraw during the time the matter is in debate.

Commentary — Standing Order 20

On occasion a Member’s conduct, [1] election [2] or right to hold a seat in Parliament has come into question. On the assumption that each Member should have an opportunity to respond to whatever may have been brought to bear against him or her, the long-standing principle that “the Member complained of should have notice of the charge, but not of all the arguments, and then be heard and withdraw,” [3] has been made to apply. This Standing Order reflects that principle.

The rule does not set out the conditions or circumstances under which such matters may be raised in the first place (see Standing Order 48). However, the Chair has interpreted “conduct” to refer to actions which, if proven, could result in the expulsion of a Member from the House on grounds that he or she is unfit for membership, as opposed to actions which could lead to a Member being named. [4]

Historical Summary — Standing Order 20

Beginning in 1867, a House order, ancestor to the present Standing Order 20, required any Member whose return or election was questioned to withdraw from the Chamber if the matter was being discussed in the House. [5] In 1887, for instance, Mr. Baird, whose return was being challenged, made a lengthy statement and then withdrew while the House continued to debate the matter. [6] In another case some years earlier when a Member’s rightful election was questioned, the Member did not take his seat until the matter was settled in his favour. [7] Other instances include one in 1913 in which a Member accused of having been a party to an impersonation scheme in a Montreal by-election made a statement of denial and withdrew; [8] and another in 1926 where the Speaker called attention to the withdrawal rule even though the Member whose election was in doubt was not present. [9]

The rule also required withdrawal in cases of double returns; that is, where two Members were returned for a single-Member constituency owing to a tie vote. [10] It obliged the Members concerned to withdraw, not only during discussion of the double return, but also until the House could determine which of the two should be declared elected. One such case occurred in 1872, when the riding of Marquette, in Manitoba, returned two Members, Angus McKay and James Lynch. [11] Each of these gentlemen in turn made an appearance in the House, only to be asked to withdraw until the return could be determined. [12] Prorogation and then dissolution intervened before this could be done and the matter did not proceed further.

Still, questions touching on the election or return of Members were not the only circumstances under which a Member might be required to withdraw from the House. In 1876, when the conduct of Mr. Daoust came into question due to a forgery case, documents containing the substance of the facts against him were read aloud by the Clerk; Mr. Daoust then withdrew from the House after having made a statement in his own defence. [13] In 1891, when improper conduct was alleged against Mr. Cochrane, the Member for Northumberland, he too made explanations and withdrew. [14] There were yet other instances where Members responded to charges: in 1894, 1903, 1911 and 1924, but there is no evidence in these cases that the Members withdrew from the House after their statements. [15]

Eventually in 1927, the old House order (it had since become a Standing Order) [16] was revised to incorporate the practice used in cases of misconduct in a new, comprehensive Standing Order. This amended rule now required withdrawal in instances where questions were raised about “the conduct of any Member, or his election, or his right to hold his seat…,” and also codified the practice of allowing the Member to make a statement after he or she had heard the accusation. In addition, the old reference to double returns, long since outdated, was dropped. [17]

Following the 1927 change, comparatively fewer Members were formally challenged, and the statement withdrawal procedure was rarely resorted to. [18] Still, one case occurred in 1953 when Mr. George, the Member for Westmoreland, was informally challenged for alleged irregularities in his indemnity claims as a Member. Although absent when the allegation was made, Mr. George made a statement a few days later and then withdrew, ostensibly so the House could debate the matter. [19] As the House was not seized of any motion however, the incident went no further. Three years later, there was some question that the rule should be made to apply to an instance where a Member had misconducted himself in Committee of the Whole. The Speaker refused to allow this on the grounds that the Standing Order did not relate to conduct in that sense of the word, and then went on to cite the 1953 example in support of his ruling. [20] In a more recent case, the Member whose conduct was being questioned remained in the House during debate and even voted on the motion. [21]

Since 1953, there have been no instances where the coming into question of something touching on the conduct or election of a Member, or on his or her right to a seat, has led to a statement by a Member prior to his or her withdrawal.

Standing Orders 21 and 22
 
21.
Deleted (October 4, 2004).
 
22.
Deleted (October 4, 2004).

Commentary — Standing Orders 21 and 22

At the moment of its deletion, Standing Order 21 read, “No Member is entitled to vote upon any question in which he or she has a direct pecuniary interest, and the vote of any Member so interested will be disallowed.” Standing Order 22 read, “The Clerk of the House shall maintain a public registry of foreign travel by Members of Parliament in which Members shall register all visits they make outside Canada, arising from or relating to their membership in the House of Commons where the cost of any such travel is not wholly borne by the Consolidated Revenue Fund, the Member personally, any interparliamentary association or friendship group recognized by the House of Commons and any recognized party, together with the name of the sponsoring person or organization which paid for travel to and or from Canada.” As both these matters are now covered by the Conflict of Interest Code for Members of the House of Commons, these Standing Orders are superfluous. [1]

Standing Order 23(1)
Offer of money to Members.
23.
(1)
The offer of any money or other advantage to any Member of this House, for the promoting of any matter whatsoever depending or to be transacted in Parliament, is a high crime and misdemeanour, and tends to the subversion of the Constitution.

Commentary — Standing Order 23(1)

One of the privileges of individual Members entitles them to carry out their parliamentary duties freely, without intimidation or interference. An attempt to tamper with this privilege through bribery undermines the independence of Members and, by extension, of the House itself, and amounts to a contempt of Parliament. As such, this Standing Order, in referring to an attempt at bribery as “a high crime and misdemeanour” tending to the “subversion of the Constitution”, underlines the gravity with which the House views the offence.

Few recorded instances of attempted bribery exist. In an early instance, a Member rose in the House to say that someone had attempted to buy his vote. The House immediately ordered the accused party taken into custody, but Parliament was prorogued before the individual could be questioned at the Bar, and the matter was never again taken up. [1] In a more recent instance, it was alleged that a bribe had been offered to a Member on condition that he change his party allegiance by crossing the floor of the House. The Standing Committee on Privileges and Elections was ordered to study and report on the charge, but on investigation concluded that the allegation was unfounded, and the matter went no further. [2]

Instances where a Member accepts the offer of a bribe or even arranges for one in consideration of his or her work in Parliament are not foreseen by the rule, although such actions could also be viewed as a breach of privilege. This could also be seen as a violation of the Conflict of Interest Code for Members, appended to the Standing Orders, which prohibits Members from furthering their private interests in the execution of their duties. [3] The Parliament of Canada Act makes illegal the attempt at bribery and the acceptance of a bribe and sets out penalties where the law has been broken. [4]

Historical Summary — Standing Order 23(1)

There are no reported instances where the House has agreed that this Standing Order has been breached. In two cases, however, allegations to this effect were made. The first occurred on November 3, 1873, when Mr. Cunningham, the Member for Marquette, stated in the House that he had been approached by Ottawa Alderman Heney, with an offer of a large sum of money if he voted with the government in an impending division. Upon hearing this, the House immediately ordered the Sergeant-at-Arms to take Mr. Heney into custody. [5] When the Sergeant-at-Arms appeared with him the next day, the House, being in the midst of a heated debate on the Pacific Scandal charges, merely ordered that Heney “remain in attendance until called”. [6] Three days later, a motion was finally moved that he be brought to the Bar. At that moment Black Rod arrived to summon the House to hear a prorogation speech. A new government had found it necessary to prorogue because of the great number of vacancies created upon the assumption of office of the new ministry. [7] Soon after, Parliament was dissolved, and when the new House was returned, it did not further investigate the affair.

It was not until 1964 that another formal allegation of attempted bribery was made. [8] In this case, a Member rose on a question of privilege and gave an account of a meeting he had had with an organizer from another party. The organizer, he said, had offered him “a fat electoral fund” if he crossed the floor. [9] The matter was allowed to stand over to the next day, when another Member claimed that if accurate, the alleged incident constituted an attempt to bribe a Member of the House. [10] The allegation was referred to the Standing Committee on Privileges and Elections for study, which found no evidence of attempted bribery when it reported several weeks later. [11]

Apart from these two incidents, there have been many other cases in which allegations of accepting bribes in exchange for favours or influence formed the substance of motions against Members by their colleagues. [12] As such, the Standing Order, which specifies only the “offer” of bribes and not their acceptance, did not come into play. Instead, the Parliament of Canada Act pointed to the illegality of certain Members’ actions. [13] Although corruption in the execution of a Member’s duties is nevertheless a breach of privilege, [14] the distinction between the Standing Order and the Act prevails today; i.e., the Act applies both to the offer and acceptance of a bribe, whereas this Standing Order mentions only the former. In addition to the provisions of the Act, since 2004, a Conflict of Interest Code for Members has been appended to the Standing Orders. Among other things, the Code specifies that Members may not further their private interests in the execution of their duties. [15]

The Standing Order’s content has not changed since 1867, although its designation has varied twice. From 1867 to 1876 it was put forward at the beginning of each session as a Sessional Order. Between 1876 and 1906 it was an unnumbered Standing Order, after which time it was assigned a number.

Standing Order 23(2)
Bribery in elections.
23.
(2)
If it shall appear that any person has been elected and returned a Member of this House, or has endeavoured so to be, by bribery or any other corrupt practices, this House will proceed with the utmost severity against all such persons as shall have been wilfully concerned in such bribery or other corrupt practices.

Commentary — Standing Order 23(2)

This Standing Order condemns bribery in elections, thus reiterating one of the fundamental privileges of the House: its right to determine questions affecting the manner by which it is constituted. At the same time, Parliament has over the years passed several statutes touching on bribery and corruption in elections, delegating to the courts the authority to decide breaches of this kind when they occur. [1] As such, where a candidate has engaged in bribery or some other form of corruption in being or in attempting to be elected, severe penalties, including several years’ disqualification from candidacy and voting in subsequent elections, are provided for. [2]

Because the statutes are so thorough in specifying the illegality of election corruption and in providing for sanctions when the laws are broken, the House has shown a marked reluctance to pursue investigations in such instances (see Historical Summary). Rulings from the Chair have sustained the view that the House is precluded from taking action because the applicable statute, now the Canada Elections Act, gives the courts exclusive jurisdiction in deciding the validity of election results when these are contested. [3] Still, the House has never relinquished its power to act in matters affecting its membership in instances other than those related to controverted elections, although the House could in theory deal with an offending Member through other means (by expulsion for example). In addition, the House can always “receive petitions setting forth grievances and praying for a remedy, provided they do not question the return of a Member….” [4]

Historical Summary — Standing Order 23(2)

Between 1867, when this Standing Order was first adopted, and 1873, when the Dominion Controverted Elections Act was passed, the House itself, via election committees, [5] adjudicated controverted elections and hence routinely passed judgment on cases of bribery and corruption in electoral contests. [6] Shortly before the 1873 Act was passed, however, a different procedure was followed when a major bribery scandal was revealed.

It was alleged in early April of that year that several Ministers and government supporters had received large sums of money from Sir Hugh Allan of Montreal during the 1872 election, with which the electorate had been bribed, and in exchange for which it had been agreed that Allan would be awarded the charter for the building of the Pacific Railway. The motion alleging these facts, which called for the formation of an investigatory committee composed of Members from both the government and opposition sides of the House, was defeated. [7] A few days later the Prime Minister came to the House with a motion of his own seeking the establishment of a special committee to “inquire into and report upon” the allegations. Some months later, after the committee had been rendered powerless and a Royal Commission appointed in its place, the matter came to a head when the Opposition, unhappy with the course taken, moved a motion of censure of the government. [8] After several days’ debate, the government resigned and a new administration was formed.

The following year, after the Dominion Controverted Elections Act had come into effect, the Speaker refused to accept what amounted to an election petition after it was argued that the matter could be dealt with only by the courts, as provided by statute. [9] This principle continued to guide the House in subsequent cases, although concerns were expressed that the Dominion Controverted Elections Act did not provide for action to be taken on judges’ reports of corruption in electoral contests. [10] In 1876 this was remedied when Parliament passed two Acts dealing with inquiries into corrupt practices in elections. [11] In 1879 a petition for an inquiry of this kind was received, but it was merely referred to the Committee on Privileges and Elections for study, and no report was issued. [12]

The question of whether or not the House could properly act on petitions concerning controverted elections remained unsettled, and several cases in the 1880s and 1890s did little to clear up the uncertainties on this point. For instance, in 1881 the Speaker decided the House could not get involved in such cases and refused to accept a petition, [13] while in 1887 one was accepted and referred to the Privileges and Elections Committee on a motion by the Minister of Justice, who felt that while the committee could not and should not decide on the contested return, it should nevertheless be free to investigate the matter. [14] A similar case arose in 1888. [15] In 1892 the House went further than on other occasions. When serious allegations of widespread bribery in several Quebec constituencies during the 1891 election were raised, it was decided not only that the matter should be looked into, but that this should be done by a Royal Commission. It was nevertheless agreed that the Commission would not be required to arrive at a judgment, but would merely take evidence. [16] After the evidence was reported, the House subsequently decided against taking further action by voting down an amendment to a Supply motion. [17]

In 1901 the Nipissing case was dealt with in a slightly different manner. It was decided that while the House could refer an election matter to the Privileges and Elections Committee for inquiry if it wished, there would be no benefit in doing so, as the courts were already seized of the case. [18] By 1913, in the Coderre case, the consensus was decidedly against having the Privileges and Elections Committee inquire into election irregularities, [19] a feeling reiterated in 1926 when the Peace River election was questioned. [20]

Since 1926 the House has not been asked to investigate claims of corruption or bribery in elections, although suggestions have been made from time to time to have it do so. [21] On at least one occasion, the House granted leave for an emergency debate to discuss corruption in a specific election. [22]

Quite separately, judges’ reports on corrupt practices in elections were, in 1927 and 1942, dealt with by the House via a referral to the Privileges and Elections Committee. [23] Over time, the Dominion Controverted Elections Act was amended to remove virtually all need for the House to concern itself with corruption and bribery in elections. Several other statutes passed by Parliament over the years also touched on election practices and provided for a variety of penalties where breaches occurred. In 2000, a new Canada Elections Act was adopted that repealed these various acts, incorporating or replacing their provisions in one single statute. [24] Still, the Standing Order has remained unchanged since Confederation. [25]

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