House of Commons Procedure and Practice

Second Edition, 2009

House of Commons Procedure and Practice - 4. The House of Commons and Its Members - Vacancies in Representation

Vacancies in Representation

Once elected, Members are expected to serve for the duration of a Parliament. Nonetheless, vacancies in representation may, and often do, occur. A person ceases to be a Member of the House of Commons when:

that person dies;

that person resigns his or her seat;

that person has accepted an office of profit or emolument under the Crown;

that person has been elected to sit in a provincial or territorial legislative assembly or on a municipal council;

the Member’s election has been overturned in accordance with the Canada Elections Act; or

the House has, by order, declared that the Member’s seat is vacant and has ordered the Speaker to address a warrant to the Chief Electoral Officer for the issue of a writ of election for a new Member.

Death of a Member

Should a Member die while in office, a Member may rise in his or her place and advise the House of the death;^{^[449]} alternatively, two Members may notify the Speaker in writing.^{^[450]} On being informed of the vacancy, the Speaker advises the House, typically at the beginning of the sitting, that a communication has been received giving notice of a vacancy in representation and that a warrant has been addressed to the Chief Electoral Officer for the issue of a writ for the election.^{^[451]}

In the absence of the Speaker, or if there is no Speaker, or if the seat vacated is that of the Speaker, two Members may alert the Chief Electoral Officer in writing of the death of the Member. The Chief Electoral Officer is then authorized to issue a new writ for the election of a Member to fill the vacancy.^{^[452]}

Death of a Member Following a General Election

If, following a general election but before the first session of the new Parliament and before the election of a Speaker, a vacancy occurs in the representation of the House because of the death of a Member, any two Members may alert the Chief Electoral Officer in writing of this vacancy.^{^[453]} The Chief Electoral Officer is then authorized to issue a new writ for the election of a Member to fill the vacancy. On the opening day of the first session, after the election of a Speaker and after the House has returned from hearing the Speech from the Throne in the Senate, the House is advised of the vacancy at some point during the day’s proceedings.^{^[454]}

Resignation of a Member

A Member may notify the Speaker of his or her intention to resign his or her seat immediately by making a statement on the floor of the House.^{^[455]} Following this announcement, the Speaker addresses a warrant to the Chief Electoral Officer for the issue of a writ for the election of a Member to fill the vacancy.^{^[456]} A Member may also resign his or her seat by delivering to the Speaker a written declaration of intention to resign signed before two witnesses. On receiving the declaration, the Speaker addresses a warrant to the Chief Electoral Officer for the issue of a writ for the election of a Member to fill the vacancy.^{^[457]}

A Member who wishes to resign when there is no Speaker or when the Speaker is absent from Canada may deliver to any two Members his or her signed declaration of intention to resign. The same applies when a Speaker wishes to resign as a Member.^{^[458]} On receiving the declaration, these two Members address a warrant to the Chief Electoral Officer for the issue of a writ for the election of a Member to fill the vacancy.^{^[459]}

Once a Member has tendered his or her resignation, the seat is deemed to be vacated and the individual ceases to be a Member of Parliament.^{^[460]} No Member, however, may tender his or her resignation while his or her election is being contested or until after the expiration of the time during which the election may be contested on grounds other than corruption or bribery.^{^[461]}

Acceptance of an Office of Profit or Emolument Under the Crown

No person may hold an office of profit or of emolument under the Crown and become or remain a Member of Parliament. Thus, the seat of a Member who has accepted an appointment to the Senate, the office of the Governor General, a judgeship or any other such public office is automatically vacated.^{^[462]} This provision does not apply to Members who occupy positions as Ministers or who are appointed to the Ministry in the course of a session.^{^[463]} In the event a Member accepts an office after a general election but before Parliament first meets, any other Member may notify the Chief Electoral Officer of the vacancy. The Chief Electoral Officer will then issue a writ for an election of a Member to fill the vacancy.^{^[464]}

Election to a Provincial Legislature or Municipal Council

No Member may be elected to a provincial or territorial legislature or municipal council and remain a Member of Parliament.^{^[465]} In most provinces and territories, Members of the House of Commons are disqualified from being nominated as a candidate to a provincial or territorial legislature unless they first resign their seat before the close of nominations for the election.^{^[466]} In some provinces Members are also prohibited from seeking election to a municipal council.^{^[467]} As soon as the Member has resigned his or her seat, the Speaker issues a warrant to the Chief Electoral Officer to hold an election to fill the vacancy.

Contested Election Result

A vacancy in the representation of the House may occur as a result of a contested election. An election may be contested (i.e., challenged) if there are allegations that irregularities affected the outcome of the election in a particular riding or if there are grounds to believe a candidate was not eligible to seek election under section 65 of the Canada Elections Act.^{^[468]} If the election is declared null and void by a provincial court, or by the Supreme Court of Canada if an appeal was filed, the return of the person first declared elected is voided and the Speaker is advised accordingly.^{^[469]} In this case, the Speaker informs the House of the decision and then addresses a warrant to the Chief Electoral Officer to issue a writ for the election of a Member to fill the vacancy.^{^[470]}

Expulsion

Once a person is elected to the House of Commons, there are no constitutional provisions and few statutory provisions for removal of that Member from office. The statutory provisions rendering a Member ineligible to sit or vote do not automatically cause the seat of that Member to become vacant.^{^[471]} By virtue of parliamentary privilege, only the House has the inherent right to decide matters affecting its own membership. Indeed, the House decides for itself if a Member should be permitted to sit on committees, receive a salary or even be allowed to keep his or her seat.^{^[472]}

The power of the House to expel one of its Members is derived from its traditional authority to determine whether a Member is qualified to sit. A criminal conviction is not necessary for the House to expel a Member; the House may judge a Member unworthy to sit in the Chamber for any conduct unbecoming the character of a Member. Even the laying of a criminal charge against a Member has no effect on his or her eligibility to remain in office. If convicted of an indictable offence, a formal resolution of the House is still required to unseat a Member.^{^[473]} Expulsion terminates the Member’s mandate: the House of Commons declares the seat vacant and orders the Speaker to address a warrant to the Chief Electoral Officer for the issue of a writ of election.^{^[474]}

Given that the determination of whether a Member is ineligible to sit and vote is a matter affecting the collective privileges of the House, a motion to expel a Member is initiated without notice and is given precedence over all other House business.^{^[475]} When there has been a criminal conviction, the House of Commons has acted only when sufficient evidence against a Member has been tabled (i.e., judgements sentencing the Member and appeals confirming the sentence).^{^[476]} Any Member may move a motion to expel a Member and have his or her seat declared vacant.^{^[477]} If the motion is adopted, the Speaker addresses a warrant to the Chief Electoral Officer for the issue of a writ of election.

Since Confederation, there have been four cases where Members of the House of Commons were expelled for having committed serious offences.^{^[478]} Three cases involved criminal convictions: Louis Riel (Provencher) was expelled twice, in 1874^{^[479]} and in 1875,^{^[480]} for being a fugitive from justice; and Fred Rose (Cartier) was expelled in 1947 after having been found guilty of conspiracy under the Official Secrets Act.^{^[481]} In 1891, Thomas McGreevy (Quebec West) was expelled after having been found guilty of contempt of the authority of the House.^{^[482]}

Expulsion does not disqualify a Member from standing for re‑election, unless the cause of the expulsion constitutes in itself a disqualification to seek election to the House (for example, such as being convicted of an illegal or corrupt election practice).^{^[483]} Indeed, on two occasions a Member who had been expelled from the House sought re‑election: following his first expulsion from the House in April 1874, Louis Riel was re‑elected in a by‑election in September 1874; Thomas McGreevy was re‑elected to the House in a by‑election on April 17, 1895.^{^[484]}

[449] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 28(1). See, for example, Debates, September 19, 1994, pp. 5811‑4; February 3, 1997, pp. 7581‑3.

[450] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 28(1).

[451] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 28(1). See, for example, Debates, November 23, 1989, p. 6067; February 26, 1993, p. 16511; September 20, 1994, p. 5900; February 4, 1997, p. 7615; January 31, 2005, p. 2819; September 26, 2005, p. 7979; September 18, 2006, p. 2867. On December 9, 1998, Shaughnessy Cohen (Windsor–St. Clair) collapsed on the floor of the House of Commons and later died in hospital. The following day, tributes were paid to the Member (Debates, December 10, 1998, pp. 11123‑6) and an entry announcing the vacancy was published in the Journals (December 10, 1998, p. 1431). Four Members have died in the Parliamentary Precinct: Bowman Law during the fire which destroyed the Centre Block (Debates, February 7, 1916, pp. 590‑1); John L. MacDougall (Debates, June 6, 1956, p. 4786); Owen Trainor (Debates, November 28, 1956, pp. 114‑5); and Joseph Gour (Debates, March 24, 1959, p. 2209; March 25, 1959, pp. 2213‑5).

[452] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 28(2).

[453] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 28(2). There have been 10 instances since Confederation where a Member has been elected to the House but has died before the opening of Parliament: Adelbert Edward Hanna (1918); Peter McGibbon (1921); Joseph Marcile (1925); Benoit Michaud (1949); John Ernest McMillan (1949); Gordon Graydon (1953); Azra Clair Casselman (1958); Colin Cameron (1968); Rt. Hon. John Diefenbaker (1979); and John Dahmer (1988).

[454] See, for example, Debates, October 9, 1979, p. 7; December 12, 1988, p. 11. For further information, see Chapter 8, “The Parliamentary Cycle”.

[455] See, for example, Debates, September 24, 1990, p. 13215; October 11, 2002, p. 632. On occasion, Members have announced their intention to resign by making a statement in the House; their official resignation has often occurred weeks later. See, for example, Debates, June 19, 2007, pp. 10830-1; June 20, 2007, pp. 10901-3; December 12, 2007, pp. 2091‑2; June 17, 2008, pp. 7071-2.

[456] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 25(1)(a). See, for example, Journals, September 25, 1990, pp. 975‑6, Debates, p. 13269; Journals, October 11, 2002, p. 62, Debates, p. 633. In the 1990 example, the Speaker informed the House that he had addressed the warrant to the Chief Electoral Officer the day after the Member had announced his resignation in the House.

[457] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 25(1)(b). See, for example, Journals, January 29, 2007, p. 921; February 23, 2007, p. 1065; October 16, 2007, pp. 1-2; April 7, 2008, pp. 654‑5.

[458] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 26(1).

[459] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 26(2). See, for example, Journals, October 1, 1986, p. 25, Debates, p. 15.

[460] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 27(1).

[461] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 27(2).

[462] Parliament of Canada Act, R.S. 1985, c. P‑1, ss. 28(1) and 32(1). See, for example, Debates, October 1, 1986, p. 15 (appointment to the office of Lieutenant Governor of Newfoundland); June 1, 1988, p. 16010 (acceptance of public office); November 23, 1994, p. 8165 (appointment to the Senate); October 12, 1999, p. 6 (acceptance of public office; appointment to the Senate); September 15, 2003, p. 7305 (appointment to the Senate). In 1984, Speaker Sauvé resigned her seat upon her appointment as Governor General. She addressed her resignation letter to the Clerk of the House (Journals, January 16, 1984, p. 72). Following the election of Lloyd Francis as Speaker, the vacancy in the representation for her seat was announced to the House (Journals, January 16, 1984, p. 74).

[463] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 33(2).

[464] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 29. See, for example, Journals, October 9, 1979, pp. 17‑8.

[465] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 23(1). For examples of Members announcing their intention to seek election to a provincial legislature or municipal council, see Debates, February 1, 1993, p. 15167; April 2, 1998, pp. 5718-20; September 20, 2006, pp. 3024-5.

[466] Constitution Act, R.S.B.C. 1996, c. 66, s. 32(b) (British Columbia); Elections Act, R.S.A. 2000, c. E-1, s. 56(e) (Alberta); Legislative Assembly and Executive Council Act, S.S. 2007, c. L-11.3, s. 11(1)(e) (Saskatchewan); Elections Act, C.C.S.M. c. E30, s. 53(2)(a) (Manitoba); Legislative Assembly Act, R.S.O. 1990, c. L.10, s. 7 (Ontario); House of Assembly Act, R.S.N.S. 1989 (1992 Supp.), c. 1, s. 17 (Nova Scotia); Elections Act, R.S.P.E.I. 1988, c. E-11, s. 36(c) and Legislative Assembly Act, R.S.P.E.I. 1988, c. L-7, s. 16(1) (Prince Edward Island); Legislative Assembly Act, R.S.Y. 2002, c. 136, ss. 4 and 5 (Yukon); Elections and Plebiscites Act, S.N.W.T. 2006, c. 15, s. 4(b) (Northwest Territories); Nunavut Elections Act, S.Nu. 2002, c. 17, s. 11(2)(a) (Nunavut). In Quebec and New Brunswick, Members of the House of Commons are not excluded from being nominated but, if elected, they nonetheless cannot sit in the legislature (Election Act, R.S.Q., c. E‑3.3, s. 235(4) (Quebec); Legislative Assembly Act, R.S.N.B. 1973, c. L‑3, s. 22(1) (New Brunswick)). In Newfoundland and Labrador, neither the Elections Act (S.N.L. 1992, c. E-3.1, s. 67) nor the House of Assembly Act (R.S.N.L. 1990, c. H‑10) specifically disqualifies a Member of the House of Commons from being nominated as a candidate at an election.

[467] Municipal Elections Act, S.N.L., 2001, c. M-20.2, s. 5(a) (Newfoundland and Labrador); Municipal Elections Act, 1996, S.O. 1996, c. 32, s. 29(1.1) (Ontario).

[468] S.C. 2000, c. 9, s. 524(1). For further information, see the section in this chapter entitled “Contested Elections”.

[469] Canada Elections Act, S.C. 2000, c. 9, ss. 531(3) and 532(3).

[470]Canada Elections Act, S.C. 2000, c. 9, ss. 531(4) and 532(4); Parliament of Canada Act, R.S. 1985, c. P-1, s. 28(1).

[471] Maingot, J.P.J., Parliamentary Privilege in Canada, 2nd ed., Montreal: House of Commons and McGill-Queen’s University Press, 1997, pp. 22‑3. See also the Canada Elections Act (S.C. 2000, c. 9, s. 502(3)) which stipulates that a person who has been found guilty of an illegal or corrupt practice cannot be elected to or sit and vote in the House of Commons. Similarly, the Criminal Code (R.S. 1985, c. C-46, s. 750) provides that a Member convicted of an indictable offence, for which the sentence is two or more years of imprisonment, may not be elected to or sit or vote in the House. Nonetheless, neither statute contains provisions declaring the Member’s seat vacant.

[472] Maingot, 2nd ed., pp. 188, 247. See also Speaker Lamoureux’s ruling, Debates, March 1, 1966, pp. 1939‑40.

[473] Maingot, 2nd ed., p. 188.

[474] See, for example, Journals, April 16, 1874, p. 71; February 24, 1875, pp. 124‑5; September 29, 1891, p. 561; January 30, 1947, p. 8.

[475] Maingot, 2nd ed., p. 247. Standing Order 20 permits a Member whose conduct is in question to make a statement and then withdraw from the Chamber while the motion respecting him or her is being debated.

[476] Maingot, 2nd ed., pp. 188‑9, 212. See, for example, Journals, February 22, 1875, p. 111; January 30, 1947, pp. 4‑8. In 1874, only an indictment for Louis Riel’s arrest was tabled (Journals, March 31, 1874, pp. 11‑2).

[477] In 1989, after giving the required one hour’s notice to the Speaker, Svend Robinson (Burnaby–Kingsway) rose on a question of privilege with respect to the conduct of Richard Grisé (Chambly) who had pleaded guilty to charges of breach of trust and fraud. Mr. Robinson stated that if the Speaker found the matter to be prima facie, he would move a motion that Mr. Grisé be expelled from the House and his seat declared vacant (Debates, May 25, 1989, pp. 2119-29). Speaker Fraser took the matter under advisement. Before he could render his decision, Mr. Grisé resigned his seat. In announcing the vacancy, the Speaker read into the record Mr. Grisé’s letter of resignation (Debates, May 30, 1989, p. 2321).

[478] For further information, see Chapter 3, “Privileges and Immunities”. A Member was expelled from the Nova Scotia Legislative Assembly in 1986 by reason of the Member’s conviction on four counts of using forged documents in respect of money received by him in his capacity as a Member. In that case, the Court held that the Legislature had the power to expel a Member by resolution and that this was not normally reviewable by the Courts. It was also held that the establishment and enforcement of proper standards for Members of the House was not a breach of section 3 of the Charter of Rights and Freedoms (MacLean v. Nova Scotia (Attorney General) (1987), 35 D.L.R. (4th) 306 (N.S.S.C.)). See also Holtby, J., “The Legislature, The Charter and Billy Joe MacLean”, Canadian Parliamentary Review, Vol. 10, No. 1, Spring 1987, pp. 12-4. In 1991, a Member of the New Brunswick Legislative Assembly was expelled after he was convicted of committing an illegal practice under the New Brunswick Elections Act (the Member had induced an underage person to vote in the election, knowing that she was not eligible to vote). The appellant challenged the constitutionality of certain sections of the Election Act which prevented him from voting at any election or being elected to or sitting in the Assembly for five years. The Supreme Court upheld that the Elections Act was valid legislation and that the Member’s disqualification was a legitimate exercise of parliamentary privilege (Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876).

[479] In April 1874, the House ordered that Louis Riel, “having been charged with murder, and a Bill of Indictment for said offence having been found against him, and warrants issued for his apprehension, and the said Louis Riel having fled from justice, and having failed to obey an Order of this House that he should attend in his place on Thursday, the 9th day of April, 1874, be expelled [from] this House”. A second motion was subsequently adopted ordering the Speaker to issue a warrant for an election to fill the vacancy. See Journals, March 31, 1874, pp. 10‑3; April 1, 1874, pp. 17‑8; April 8, 1874, pp. 25‑6; April 9, 1874, pp. 32‑9; April 15, 1874, pp. 64‑5; April 16, 1874, pp. 67‑71.

[480] In the by‑election held to fill the vacancy resulting from the expulsion of Louis Riel, he was once again elected. On February 22, 1875, the Prime Minister tabled a court ruling finding Mr. Riel guilty of murder (Journals, p. 111). Two days later, motions were adopted to effect the expulsion of Mr. Riel. First, the Prime Minister moved that the court ruling tabled two days earlier be read. After the motion was adopted, the Clerk read the judgement into the record (Journals, February 24, 1875, pp. 118‑22). The Prime Minister then moved that “it appears from the said Record that Louis Riel, a Member of this House, has been adjudged an outlaw for felony”. The House adopted the motion. This motion was followed by another motion ordering the Speaker to issue a warrant for a new writ of election (Journals, February 24, 1875, pp. 122‑5).

[481] On January 30, 1947, the Speaker tabled court judgements, including copies of court of appeal judgements, in connection with the imprisonment of Fred Rose (Cartier). The Prime Minister then moved that the Member had become incapable of fulfilling his parliamentary duties and that the Speaker be ordered to issue a warrant to the Chief Electoral Officer to make out a writ of election to fill the vacancy. The motion was adopted (Journals, January 30, 1947, pp. 4‑8).

[482] In this instance, there was no conviction before a criminal court. In 1891, a private Member moved a motion to establish a select committee to enquire into allegations of corruption against the Member for Quebec West, Thomas McGreevy (Journals, May 11, 1891, pp. 55‑60). The Member refused to answer questions in the committee and the committee subsequently found the Member guilty of the charges made against him (Journals, September 16, 1891, p. 512). After adopting the committee’s report (Journals, September 21, 1891, pp. 522‑3; September 22, 1891, p. 523; September 24, 1891, pp. 527‑31), the House resolved, on September 29, 1891, that Thomas McGreevy be expelled from the House. This resolution was followed by the adoption of a motion ordering the Speaker to issue a new writ of election (Journals, September 29, 1891, p. 561).

[483] Bourinot, 4th ed., p. 64. Any disqualification imposed by the Criminal Code ceases when the sentence has been served or a pardon has been granted (Maingot, 2nd ed., p. 212).

[484] Unlike Louis Riel, Thomas McGreevy did not suffer a further expulsion, but was defeated in the general election of 1896.