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House of Commons Procedure and Practice

Second Edition, 2009

 
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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).

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