House of Commons Procedure and Practice

Second Edition, 2009

House of Commons Procedure and Practice - 4. The House of Commons and Its Members - Rules of Membership for the House

Rules of Membership for the House

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

Historical Perspective

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

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

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

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

Qualifications for Membership

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

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

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

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

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

[89] R.S. 1985, c. P‑1, ss. 21 to 24.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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