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The House’s often unique methods of proceeding are the result of centuries of practice[82]—the unwritten rules of procedure which developed over time and came to be accepted as the normal way of proceeding. The first representative assemblies on Canadian soil were inspired mainly by British parliamentary tradition,[83] and to a lesser degree by American practice.[84] Until recently, the British influence was explicitly recognized by the House in its Standing Orders[85] and, to this day, in instances where internal precedents do not provide the necessary guidance, the Speaker is given full authority to go beyond the House’s jurisprudence “in cases not provided for hereinafter”.[86] The Speaker may thus turn to provincial or foreign precedents, typically those of Commonwealth legislative bodies, “so far as they may be applicable to the House”.[87] In some areas (e.g., the conduct of Question Period), almost all procedures are based on practice augmented by decisions and statements of the Chair;[88] in other areas, some practices are born without the active participation of the Speaker.[89] There has been a tendency for the House to codify in the Standing Orders many procedures which have originated and evolved as unwritten practices. For example, although for many years representatives of the recognized parties had been permitted to respond to ministerial statements, it was only in 1964 that the practice was written into the Standing Orders.[90] A more recent example is the adoption of the Standing Order incorporating the long‑standing practice of the pairing of Members unable to be present in the House for recorded divisions.[91] [82] May distinguishes between modern and ancient practice and describes in the following terms their relationship: “[T]he function of modern practice, besides that of applying … the rules of the ancient usage to changing conditions, is to supplement the standing orders and to harmonize them with each other and with the general body of practice” (May, 22nd ed., p. 5). [83] Soon after their establishment, the assemblies of both Lower and Upper Canada chose to be guided by British practice in unprovided cases. See Province of Lower Canada, Legislative Council, Journals of the Legislative Council of the Province of Lower Canada, December 22, 1792, p. 48; January 16, 1793, p. 124; Province of Upper Canada, House of Assembly, Journal and Proceedings of the Province of Upper Canada, June 22, 1802, p. 286. [84] With regard to American influence in Upper Canada, O'Brien explains: “Jefferson’s Manual, disguised as Thomson’s Manual, became the Assembly’s chief procedural textbook in 1828. The Speaker was not wigged, as in Britain: instead he wore a cocked hat”. Other examples of American influence include the use of pages in the Chamber, roll‑call votes and desks for Members (O'Brien, p. 114, see also pp. 62‑4, 407‑8). It is important to note that in 1793, when Lower Canada's Assembly adopted 71 rules, the British House had a mere six Standing Orders dealing with public business, only one of which was adopted as is by the Lower Canada Assembly. The rules were not copied from any one source, but rather inspired by such authorities as Hatsell’s Precedents (British), Jefferson’s Manual (American) and Petyt’s Lex Parliamentaria (British). See O'Brien, Chapter 3, note 40. [85] Until 1986, Standing Order 1 read as follows: “In all cases not provided for hereafter or by sessional or other orders, the usages and customs of the House of Commons of the United Kingdom of Great Britain and Northern Ireland as in force at the time shall be followed so far as they may be applicable to this House”. [86] Standing Order 1. [87] Standing Order 1. See also Debates, March 16, 1998, p. 4902. From time to time when necessary, the Speaker and procedural advisors also look to the practices of the provinces, the United Kingdom and those countries possessing Westminster‑style Parliaments, particularly Australia, India and New Zealand. In March 2001, a point of order was raised regarding the availability in both official languages of documents consulted by the Speaker in considering the practices of other jurisdictions. Speaker Milliken stated: “[I]f … a situation arises that is not covered by our practices or by the practices of the United Kingdom, I would be required … to consult the practices of other jurisdictions. In such circumstances, the availability of documents in either of our official languages is not a consideration” (Debates, March 15, 2001, pp. 1726‑7). [88] See, for example, statements made by Speaker Jerome (Journals, April 14, 1975, pp. 439‑41) and Speaker Bosley (Debates, February 24, 1986, p. 10879). [89] The division of speaking time between two Members provides a good illustration of a practice which became a Standing Order without much intervention from the Speaker. See, for example, Debates, March 14, 1991, p. 18439. Standing Order 43(2), which codified this practice, was adopted on April 11, 1991 (Journals, p. 2910). It was modified provisionally on February 18, 2005 (Journals, pp. 451‑5) as the accepted practice for the division of speaking time continued to evolve. The Standing Order was subsequently adopted permanently on October 25, 2006 (Journals, pp. 577‑9). [90] See the Third Report of the Special Committee on Procedure and Organization, concurred in on May 7, 1964 (Journals, p. 297, Debates, pp. 3007‑10, particularly the comments of Stanley Knowles). [91] See Standing Order 44.1, adopted by the House on April 11, 1991 (Journals, pp. 2910‑1). |
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