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House of Commons Procedure and Practice

Second Edition, 2009

 
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*   Mandate of the Subcommittee on Private Members’ Business of the Standing Committee on Procedure and House Affairs

No item of Private Members’ Business may be taken up by the House until a determination is made as to whether or not it should remain votable.[111]

As soon as practicable after the Order of Precedence has been established or replenished, the Subcommittee on Private Members’ Business of the Standing Committee on Procedure and House Affairs must meet to determine whether or not any of the items placed in the Order of Precedence are non-votable according to the criteria adopted by the Standing Committee.[112] When a private Member’s public bill originating in the Senate has been read a first time, the Subcommittee must also meet to determine if the bill should be designated non-votable pursuant to the Standing Orders.[113] The fact that a bill or a motion has been accepted as votable should not be construed as a guarantee that the House will adopt the bill or motion.

The following items are automatically placed in the Order of Precedence and remain votable:

*       private bills;[114]

*       notices of motions (papers);[115]

*       bills reported from committee (or deemed to have been reported from committee);[116]

*       bills at the third reading stage;[117] and

*       Senate amendments to bills.[118]

Members may wish only to have their item debated, without it coming to a vote. No later than the adjournment hour on the second sitting day after the item has been added to the Order of Precedence, Members may inform the Clerk of the House in writing that they wish to have their item designated as non-votable. Items may also be designated as non-votable by the Subcommittee on Private Members’ Business, though such a decision is subject to an appeal process.[119]

If the Subcommittee sees no reason to designate an item as non-votable, it files a report to that effect with the clerk of the Standing Committee on Procedure and House Affairs. Such a report is deemed to have been concurred in by the Committee and is presented to the House by a member of the Committee, usually the Chair,[120] at the next earliest opportunity. The report is deemed concurred in by the House upon its presentation.[121] Debate may then proceed on the item when it reaches the top of the Order of Precedence. If the Subcommittee feels that an item should be designated as non-votable, it reports that decision to the Standing Committee and, if concurred in by the Standing Committee, the sponsor of the item may avail him or herself of the appeal process or substitute another item as defined in the Standing Orders.[122] The item may not be considered by the House until the appeal process is complete, unless the sponsor of the item waives his or her right to appeal.[123]

If an item reaches the top of the Order of Precedence before its votable status has been confirmed or before the appeal process has concluded, then the item is automatically dropped to the bottom of the Order of Precedence.[124]

*   Criteria for Determining Non-votability

Since 1986, the Committee has based its determination of votable and now non-votable items on specific criteria, the list of which was occasionally modified throughout the years.[125] The most recent list of criteria to determine non-votability of bills and motions originating in the House of Commons is as follows:[126]

*       bills and motions must not concern questions that are outside federal jurisdiction;

*       bills and motions must not clearly violate the Constitution Acts, 1867 to 1982, including the Canadian Charter of Rights and Freedoms;

*       bills and motions must not concern questions that are substantially the same as ones already voted on by the House of Commons in the current session of Parliament, or as ones preceding them in the Order of Precedence; and

*       bills and motions must not concern questions that are currently on the Order Paper or Notice Paper as items of government business.

It should be noted that the Subcommittee on Private Members’ Business, in applying these criteria, only assesses bills against other bills and motions against other motions.

In the case of a private Member’s public bill originating in the Senate, the only ground on which such a bill can be designated non-votable is its similarity to a bill voted on by the House in the same Parliament.[127]

Once it has determined that an item should be designated non-votable, the Subcommittee on Private Members’ Business presents its report to the clerk of the Standing Committee on Procedure and House Affairs.[128]

*   Appeal Process

Appeal to the Standing Committee on Procedure and House Affairs

A Member who disagrees with the decision of the Subcommittee on Private Members’ Business designating his or her item non-votable may, within five sitting days of the Subcommittee’s report being presented to the Standing Committee on Procedure and House Affairs, appear before that Committee and/or present a written argument to the Committee with reasons why the item should be votable.[129]

If the Committee agrees with the Member that the item should remain votable, a report to this effect is presented to the House and deemed concurred in, and the item remains votable.[130] If the Committee agrees with the Subcommittee, it presents a report to the House, stating that the item should not be votable.[131]

Appeal to the House

Within five sitting days of the presentation of a report from the Standing Committee on Procedure and House Affairs that an item of Private Members’ Business in the Order of Precedence be designated non-votable, the sponsor of the item may file an appeal with the Speaker, in the form of a notice of motion, that the item remain votable. In addition to the sponsor, five other Members, representing the majority of the parties in the House, must sign the appeal.[132]

If the appeal is in order, the Speaker calls for a vote by secret ballot to be held over the course of two sitting days during the hours of sitting of the House.[133] A ballot box is placed on the Table in the Chamber for this purpose. The Speaker announces the results of the vote at the next sitting of the House.

Should the sponsor not file an appeal within five sitting days, then the report is deemed adopted and the item is designated as non-votable.[134]

*   Substitution of Another Item

A Member may also choose to substitute another item of Private Members’ Business for an item that has been deemed to be non-votable. The Member must give notice of his or her intent to substitute within five sitting days of the presentation of the report of the Standing Committee on Procedure and House Affairs designating an item as non-votable.[135]

The Member may choose to substitute any other of his or her items already on the Order Paper or Notice Paper. If this is the case, the Member informs the Clerk of the House in writing of the item to be substituted, which then takes the place of the original item in the Order of Precedence.[136] If the Member does not already have a notice of motion on the Order Paper or Notice Paper or a bill on the Order Paper for consideration at the second reading stage, the Member has 20 calendar days from the presentation of the report of the Standing Committee to have a motion placed on notice or a bill introduced. The Member also informs the Clerk of the House in writing that this is the item to be substituted and it is then placed at the bottom of the Order of Precedence.[137] If the Member fails to place an item on the Order Paper or Notice Paper within the 20 calendar days, his or her name is dropped from the Order of Precedence.[138]

Any substituted item is subject to review by the Subcommittee on Private Members’ Business to determine if it should remain votable.[139]



[111] Standing Order 91.1(1).

[112] Standing Order 91.1.

[113] Standing Order 92(1)(a).

[114] The Subcommittee has no mandate to examine private bills and thus such bills are votable.

[115] Standing Order 97(2). The Subcommittee cannot designate motions for papers as non-votable items since Standing Order 97(2) already requires such motions to come to a vote.

[116] Standing Order 89.

[117] Standing Order 89.

[118] Standing Order 89. When a private Member’s public bill is returned to the House after having been amended in the Senate, the order for its first consideration at this subsequent stage appears at the bottom of the Order of Precedence.

[119] Standing Orders 91.1 and 92.

[120] See, for example, the Fourteenth Report of the Standing Committee on Procedure and House Affairs (items to remain votable), presented to the House by Marcel Proulx (Hull–Aylmer) for Joe Preston (Chair of the Committee) on March 31, 2008 (Journals, p. 618). See also the Forty‑Eighth Report of the Standing Committee on Procedure and House Affairs (Bill C‑447 designated as non‑votable), presented to the House by Geoff Regan (Halifax West) for Peter Adams (Chair of the Committee) on October 10, 2003 (Journals, p. 1125); Seventh Report of the Standing Committee on Procedure and House Affairs (Bill C‑450 designated as non‑votable), presented to the House by Marcel Proulx (Hull–Aylmer) for Peter Adams (Chair of the Committee) on February 27, 2004 (Journals, p. 142).

[121] Standing Order 91.1(2). See, for example, the Eighth Report of the Standing Committee on Procedure and House Affairs (items in the Order of Precedence following its establishment), Journals, May 30, 2006, pp. 207‑8; Fifth Report (items in the Order of Precedence following a replenishment), Journals, December 6, 2007, p. 269; Thirty‑Ninth Report (addition of a bill originating in the Senate to the Order of Precedence), Journals, May 29, 2007, p. 1188.

[122] Standing Order 92(1) and (2). From 2003 to 2008, the Subcommittee reported seven items as non-votable: Bill C‑447, An Act to protect the institution of marriage (Grant Hill (Macleod), introduced on September 18, 2003 (Journals, p. 993), placed in the Order of Precedence September 23, 2003); Bill C‑450, An Act to amend the Marriage (Prohibited Degrees) Act in order to protect the legal definition of “marriage” by invoking section 33 of the Canadian Charter of Rights and Freedoms (Jim Pankiw (Saskatoon–Humboldt), introduced on September 23, 2003 (Journals, p. 1026), placed in the Order of Precedence on February 2, 2004); Bill C‑268, An Act to confirm the definition of marriage and to preserve ceremonial rights (Rob Moore (Fundy Royal), introduced on November 5, 2004 (Journals, pp. 202‑3), placed in the Order of Precedence on November 15, 2004); Bill C‑291, An Act to amend the Criminal Code (injuring or causing the death of a child before or during its birth while committing an offence) (Leon Benoit (Vegreville–Wainwright), introduced on May 17, 2006 (Journals, p. 187), placed in the Order of Precedence on May 17, 2006); Motion M‑322 concerning the Court Challenges Program (Stéphane Dion (Saint‑Laurent–Cartierville), placed on notice on April 19, 2007 (Order Paper and Notice Paper, April 20, 2007, p. v), placed in the Order of Precedence on April 20, 2007); Bill C‑415, An Act to amend the Canada Labour Code (replacement workers) (Mario Silva (Davenport), introduced on March 22, 2007 (Journals, p. 1142), placed in the Order of Precedence on April 23, 2007); Bill C‑482, An Act to amend the Official Languages Act (Charter of the French Language) and to make consequential amendments to other Acts (Pauline Picard (Drummond), introduced on November 20, 2007 (Journals, p. 177), placed in the Order of Precedence on November 23, 2007).

[123] See, for example, the letter from Leon Benoit (Vegreville–Wainwright) to the Speaker dated June 13, 2006, stating that he would not appeal the report of the Standing Committee on Procedure and House Affairs concerning Bill C‑291. The Tenth Report of the Committee had been presented to the House on June 7, 2006 (Journals, p. 244) and was deemed concurred in on June 13, 2006, following the receipt of Mr. Benoit’s letter (Journals, p. 275). On June 14, 2006, Bill C‑291 was debated for one hour and then dropped from the Order Paper (Journals, p. 278). See also the letter from Stéphane Dion to the Speaker dated May 9, 2007, stating that he waived his right of appeal of the report of the Standing Committee concerning Motion M‑322. The Fiftieth Report of the Committee had been presented to the House on May 9, 2007 (Journals, p. 1377) and was deemed adopted on May 10, 2007, following the receipt of Mr. Dion’s letter (Journals, p. 1390).

[124] Standing Order 91.1. See the Speaker’s statements on February 27, 2004 (Journals, p. 142, Debates, pp. 1164‑5, Order Paper and Notice Paper, p. 13); May 29, 2007 (Journals, p. 1439, Debates, p. 9912, Order Paper and Notice Paper, p. 35); and June 18, 2008 (Journals, p. 1019, Debates, pp. 7136-7, Order Paper and Notice Paper, p. 45). In each case, Private Members’ Business was cancelled on the day scheduled for consideration of the item.

[125] From 1986 to 2003, most items of Private Members’ Business were automatically designated non-votable; a standing committee was charged with choosing from the Order of Precedence a certain number of “selected” (or “votable”) items. Extensive criteria were adopted to determine if an item should be votable. See Journals, May 23, 1986, pp. 2200‑1; October 21, 1987, pp. 1717‑8. Objections were raised regarding the Committee’s selection of votable items (see Debates, November 19, 1986, pp. 1325‑34 and Speaker Fraser’s ruling, Debates, December 4, 1986, pp. 1759‑60; see also Debates, April 18, 1997, pp. 9919‑20; November 4, 1998, pp. 9836‑7). In March 2003, the House agreed to a recommendation that all items should be votable unless a panel judged them to be non‑votable according to a few very specific criteria. See the Third Report of the Special Committee on the Modernization and Improvement of the Procedures of the House of Commons, presented to the House on February 28, 2003 (Journals, p. 492) and, pursuant to the Order adopted by the House on February 28, 2003 (Journals, p. 492), deemed concurred in on March 17, 2003 (Journals, p. 495). These new rules were made permanent, with several modifications, in 2005. See the Thirty‑Seventh Report of the Standing Committee on Procedure and House Affairs, presented to the House and concurred in on May 11, 2005 (Journals, pp. 738‑9). In March 2003, the Standing Committee on Procedure and House Affairs recommended a short list of criteria for making items of Private Members’ Business non-votable. See the Twenty‑Fourth Report of the Standing Committee on Procedure and House Affairs, presented to the House on March 26, 2003 (Journals, pp. 569‑70). In 2006, the Subcommittee on Private Members’ Business undertook a review of the criteria for non-votability and recommended minimal changes. The Standing Committee on Procedure and House Affairs accepted these recommendations, reported them to the House and they were concurred in. See the Forty‑Ninth Report of the Standing Committee on Procedure and House Affairs, presented to the House and concurred in on May 9, 2007 (Journals, pp. 1377‑8).

[126] Forty‑Ninth Report of the Standing Committee on Procedure and House Affairs, presented to the House and concurred in on May 9, 2007 (Journals, pp. 1377‑8).

[127] Standing Order 92(1)(a). See the First Report of the Special Committee on the Modernization and Improvement of the Procedures of the House of Commons, recommendation 15, presented to the House and concurred in on February 20, 2003 (Journals, p. 439).

[128] Standing Order 92(1)(a). On occasion, the Chair of the Subcommittee has also presented the report at the next meeting of the Committee. See, for example, Standing Committee on Procedure and House Affairs, Minutes, May 8, 2007, Meeting No. 49; December 6, 2007, Meeting No. 10.

[129] Standing Order 92(2). In all but one instance where the Subcommittee has reported that an item should be designated non‑votable, the sponsor has opted to appear before the Standing Committee to explain why the item should be votable. In one case the Member appearing sought the consent of the Committee to hear from a member of the public, but consent was refused (Standing Committee on Procedure and House Affairs, Evidence, June 6, 2006, Meeting No. 10, pp. 1‑3). On another occasion, the sponsor of the item as well as another Member appeared as witnesses before the Committee (Standing Committee on Procedure and House Affairs, Minutes, December 11, 2007, Meeting No. 11, Evidence, pp. 10‑22). In the single instance where the Member opted not to appear (Stéphane Dion (Saint‑Laurent–Cartierville), Motion M‑322 concerning the Court Challenges Program) this information was initially conveyed to the Committee by one of its associate members. On May 8, 2007, the Chair of the Subcommittee presented its Third Report to the Committee designating Mr. Dion’s motion non‑votable. In the meeting, Paul Szabo (Mississauga South) gave an undertaking that if the Committee concurred in the Report, and this was reported to the House, then Mr. Dion would not appeal the decision and would accept the decision that his item was non‑votable (Standing Committee on Procedure and House Affairs, Evidence, May 8, 2007, Meeting No. 49, pp. 12‑3). The Committee did as the Member suggested and presented its Fiftieth Report to the House on May 9, 2007 (Journals, p. 1377). On the same day, Mr. Dion wrote the Speaker stating that he would not appeal the designation of his item. The Speaker informed the House of this on May 10, 2007 (Debates, pp. 9287‑8) and, pursuant to Standing Order 92(4)(a), the Report was deemed concurred in (Journals, p. 1390).

[130] Standing Order 92(3)(b). See the Fifty‑First and the Eighth Reports of the Standing Committee on Procedure and House Affairs, presented to the House on May 30, 2007 (Journals, pp. 1446‑7) and on December 13, 2007 (Journals, p. 319) respectively, and deemed concurred in.

[131] Standing Order 92(3)(a). See the Forty‑Eighth Report of the Standing Committee on Procedure and House Affairs, presented to the House on October 10, 2003 and deemed concurred in on October 24, 2003 (Journals, pp. 1125, 1165); the Seventh Report, presented to the House on February 27, 2004 and deemed concurred in on March 12, 2004 (Journals, pp. 142, 179); the Sixteenth Report, presented to the House on November 26, 2004 and deemed concurred in on December 3, 2004 (Journals, pp. 264, 295); the Tenth Report, presented to the House on June 7, 2006 and deemed concurred in on June 13, 2006 (Journals, pp. 244, 275); and the Fiftieth Report, presented to the House on May 9, 2007 and deemed concurred in on May 10, 2007 (Journals, pp. 1377, 1390).

[132] Standing Order 92(4)(a).

[133] Standing Order 92(4)(b).

[134] Standing Order 92(4)(a).

[135] Standing Order 92.1.

[136] Standing Order 92.1(2).

[137] Standing Order 92.1(3).

[138] Standing Order 92.1(4).

[139] Standing Order 92.1(2) and (3).

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