4. The House of Commons and Its Members

Before a duly elected Member may take his or her seat and vote in the House of Commons, the Member 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). When a Member swears or solemnly affirms allegiance to the Queen as Sovereign of Canada, he or she is also swearing or solemnly affirming allegiance to the institutions the Queen represents, including the concept of democracy. Thus, a Member is making a pledge to conduct him-or herself in the best interests of the country. The oath or solemn affirmation reminds a Member of the serious obligations and responsibilities he or she is 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. ^[207]  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.” ^[208]  As an alternative to swearing the oath, Members may make a solemn affirmation, by simply stating: ^[209]  “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.”

Great Britain

During the Middle Ages, there was no legal requirement for the taking of oaths of allegiance in the British Parliament. ^[210]  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, both in ecclesiastical and in temporal matters. ^[211]  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. ^[212] 

In 1701, in an attempt to strengthenProtestantism in response to the attempt by Jacobites, supporters of James II, to restore Catholicism in England, English authorities devised three oaths of state designed to exclude Catholics and Jacobites from public office. The first was one of allegiance to the King of England; the second, known as the oath of supremacy, denounced Catholicism and papal authority; and the last, the oath of abjuration, repudiated all rights of James II and his descendants to the English throne. ^[213] 

More than one hundred years later, the British Parliament passed the Roman Catholic Relief Act of 1829, which replaced the declaration against transubstantiation with a simple declaration of allegiance to the Crown and provided a special form of oath acceptable to members of the Roman Catholic Church. In 1858, the oaths of supremacy, allegiance and repudiation 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. ^[214]  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. ^[215] 

Canada

The requirement that Members of the Canadian 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; Catholics and Jews were not allowed to vote or seek election. ^[216]  The legislative assembly abolished religious discrimination in voter eligibility criteria in 1789, enabling Catholics and Jews to vote. ^[217]  In 1823, the Nova Scotia Assembly adopted a resolution which granted the right to Catholics to take a seat in the Assembly without taking the Declaration against Transubstantiation. ^[218]  The Quebec Act, 1774, which was passed by the British Parliament 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. ^[219]  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. ^[220]  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. ^[221]  At Confederation, the requirement for Members of the House of Commons, Senate 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 ^[222]  and were later duplicated in section 5 of the Oaths of Allegiance Act ^[223]  passed in 1867, these provisions did not apply to Members of the House of Commons and the Senate. 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”. ^[224] 

Following a general election, the Chief Electoral Officer files a certificate with the Clerk of the House of Commons which lists Members duly elected to serve in the new Parliament. Once this certificate is received by the Clerk of the House, the process of administering the oath of allegiance commences. ^[225] 

According 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. Up 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, and Sergeant-at-Arms have been given this authority, although this function is normally carried out by the Clerk. ^[226] 

The present 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. ^[227]  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. ^[228] 

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 pictures 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 pictures 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 any entitlements. ^[229]  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. ^[230] 

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. ^[231]  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. ^[232]  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”. ^[233]  No further action was taken.