The Oath or Solemn Affirmation of Allegiance
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 Sovereign, they are also swearing or solemnly affirming allegiance to the institutions the Sovereign 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: “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”.225
The current 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”.226 As an alternative to swearing the oath, Members may make a solemn affirmation by simply stating: “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”.227
During the Middle Ages, there was no legal requirement for the taking of oaths of allegiance in the English Parliament.228 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 England in the 16th 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.229 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.230
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.231 The oath of abjuration also included the words “on the true faith of a Christian”, which prevented Jews from taking the oath.232
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.233 In 1866, the British Parliament allowed Members to make a solemn affirmation in some circumstances. Finally, in 1888, it permitted those objecting to the taking of the oath for any reason to make a solemn affirmation.234
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. It was decided to apply the penal and electoral laws then in force in Great Britain. Consequently, Catholics and Jews were not allowed to vote or seek election, and Members were required to swear the 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.235 The House of Assembly abolished religious discrimination in voter eligibility criteria in 1789, thus enabling Catholics and Jews to vote.236 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. However, the state oaths still applied to non-Catholics.237 In 1846, the state oath was abolished in Nova Scotia.238
In 1780, the Legislative Assembly of Prince Edward Island, the only other colony with representative government at that time, restricted the franchise to Protestants.239 It was not until 1830 that Catholics received the right to vote and seek office.240 In 1846, when the state oaths were replaced with a single oath of allegiance, Jews were allowed to seek office.241
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 Great Britain. 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.242
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.243 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, and would substitute an oath of allegiance, should they wish to assume public office.244 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.245 Jews were still effectively barred from taking a seat because of the requirement to swear an oath of allegiance on the New Testament.246 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.247 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, 1840.248 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, 1840,249 and were later duplicated in section 5 of the Oaths of Allegiance Act250 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’ ”.251
Following a general election or by-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.252
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, Clerks Assistant, Law Clerk and Parliamentary Counsel, and Sergeant-at-Arms have been given this authority.253
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.254 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.255 After the swearing-in ceremony, photographs are taken and Members receive procedural texts and a distinctive lapel pin.256
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 can be 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, the elected Members also 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.257 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.258
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.259 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.260 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”.261 No further action was taken.