You may have already noticed that bill C-1 and S-1 are not located anywhere in the Status of Government Legislation posts featured on this blog. There is actually a good and very interesting reason for this. In this post we will examine the practical purpose of bills C-1 and S-1 in each session of Parliament and briefly review the historical perspectives of these bills.
Each session of Parliament begins with the formal opening of said Parliament with a Speech from the Throne delivered by the Governor-General on behalf of the reigning Monarch (monarchs have delivered this speech in Canada on various occasions) in the Senate Chamber. However, before the session begins, before all of the MPs make the trek from the House of Commons to the Senate and before all of the Senators and Justices of the Supreme Court take their seats before a filled regal chair in the Senate Chamber the entire Parliament is summoned by the Governor-General on the advice of the Prime Minister. The summoning of Parliament is a formal requirement in accordance with our constitution and established conventions on the opening of a session of parliament. The Summons itself is a Crown prerogative that on convention is exercised on the advice of the Prime Minister and is the literal formation of a particular Parliament by the Crown-in-Canada. This fact is important, the formation of our democratically elected House of Commons and appointed Senate into a particular Parliament with all of the powers, authorities and privileges required to conduct the democratic will of Canadians is rested upon the ordering of certain persons to Ottawa by the Crown. The glaring authority of the Crown in the formation of Parliament is made obvious in the direction the Crown gives to the Usher of the Black Rod to collect Members of Parliament from the House of Commons and summon them, on their feet before the Bar of the Senate, to listen to the Crown’s priorities and objectives for the government and the upcoming parliamentary session.
At the end of the Speech from the Throne, MPs return to the House of Commons and Senators continue business in the Senate. In the House of Commons bill C-1 is normally proposed by the Prime Minister and is titled An Act respecting the Administration of Oaths of Office. In the Senate, bill S-1 is proposed by the Senator representing the Government and is titled An Act relating to Railways. Each bill is considered to be pro forma, in that their mere form represents the historical purpose of the proposed legislation. Each is given a first reading and then is never moved again. And each bill has nothing to do with the title, in fact in recent times the bill itself it not even printed or published. But they are arguably the most important pieces of legislation in each session of parliament. These bills represent the automous nature of Parliament and specifically of each House of parliament. Regardless of what reason the Crown gives in the Senate during the Speech from the Throne for why the Parliament has been summoned and regardless of what priorities the Crown has established for the Government, both Houses assert their independence and ability to set their own business. Without these bills, the Houses may be compelled to conduct only business strictly related to that outlined in the Speech from the Throne, or at least historically that would have been the case.
Each bill is a carry over practice from the British Parliament. In the UK, each session of Parliament begins with the presentation of the Speech from the Throne (albeit with the actual reigning Monarch) and when MPs return to the House of Commons, the government presents C-1, the Outlawries Bill. Like our own C-1 and S-1, the bill is read a first time and then never again dispensed with during the session. Rarely is the bill printed today. And just like the Canadian custom, the bill signifies the independence of Parliament from the Crown. During a review of House of Commons practice in 2002, the Procedure Committee reviewed the practice and determined that it had historical significance with little impact on other business and therefore had no reason to be removed from practice.
You will not see bill C-1 and bill S-1 on the Status of Government Legislation series on this blog because there is little reason to list it constantly in Second Reading in the House of Commons and the Senate respectively. However, that does not undermine their importance. Bills C-1 and S-1 are a constant reminder of the independence of parliament and the democratic authority that we mandate to our elected representatives in Ottawa. Their importance in a free and democratic society cannot be overstated.
The recent nomination of Justice Rowe and the new approach that the Liberal government has taken to the appointment of members of the Supreme Court of Canada has invoked a lot of discussion around constitutional conventions. In this post we are going to examine the nature and usage of constitutional conventions in Canada with an eye toward their historical development.
Our Constitution: Written and Unwritten
From a legal perspective, the constitution of Canada does not encompass any one or two documents but a host of documents spanning from the Royal Proclamation, 1762 to the Canada Act, 1982 (the latter of which repatriated our constitution from the United Kingdom and established the Charter of Rights and Freedoms). The Constitution Act, 1982 provides for a list of documents to be considered as “constitutional documents” including the Canada Act, 1982 and the Constitution Act, 1867. However, the Supreme Court has maintained that several pre-Confederation acts (include the Quebec Act, 1774) and other acts (provisions of the Elections Canada Act, for example) ought to be considered with similar weight as specifically listed documents in the schedule of the Constitution Act, 1982. It is worth noting that even in the application and understanding of what documents ought to be considered of a constitutional nature and what documents should not includes forces from both the written and unwritten (or blended) parts of our state structure.
The preamble of the Constitution Act, 1867 calls for a parliament similar in nature to that of the United Kingdom. Ironically, writing down such a provision within a document to be considered the new country’s constitution was actually a departure from British parliamentary tradition. In the United Kingdom, the constitution is entirely unwritten and only recently have written documents such as provisions for the devolvement of state powers within the realm been given the weight of the unwritten provisions of the constitution (similar to how we have arranged ourselves in Canada). At any rate, however, the Dominion of Canada was founded on the premise that the state and the government within parliament be executed in similar fashion to that of the Mother Parliament. For this reason, unwritten provisions of our constitutional fabric were adopted from the United Kingdom. Provisions such as the formation of government visa a vise a Prime Minister and cabinet and the inherent privilege of Members of Parliament, including Senators, in order to properly execute their functions as representatives of Canadians. None of these provisions are mentioned in any constitutional documents, and they did and do not have to be because Canada does function in similar nature to that of the United Kingdom and our early leaders understood how the government of the UK functioned (and if they slipped, the Queen’s Privy Council was not very far). This is markedly different from the positive law of the United States or, even more so, that of Germany. In those systems, it would be impossible to enforce unwritten rules because the entire structure of law is based on the premise that the law must be made clear for citizens. Which begs the question, why do we still have unwritten portions of our constitution?
Conventions: Constitutional Mortar
There are serious advantages to having constitutional conventions and it can even be argued that no state truly functions without at least some unwritten portions of their governing documents. There are significant conventions which dictate the democratic nature of our government, such as the convention of responsible government which is executed when the Governor-General invites the leader with the plurality of seats in the House of Commons to form government and for the executive to be drawn from the ranks of parliamentarians (primarily the House of Commons). There are mundane conventions that keep the government running smoothly and, most importantly, predictably in the interest of Canadians. An easy way to understand the importance of conventions is to think of an agreement that you have made between you and a friend over a repayment of some money. You agree to pay your friend five dollars each week until your twenty dollar owed balanced in paid in full. You write down this agreement clearly and you both sign the document. What you did not include in the document was that weeks consider to start on Monday, you get paid on Thursdays so you expected to provide payment each Thursday and if you did not pay you would have to renegotiate a new agreement or your friend could ask for the full money back immediately. These unwritten understandings between you and your friend are similar to that of conventions within the formation of the state. They have a strong benefit in that they can be changed without having to reopen the original agreement (say, for example your employer starts to pay you on Monday rather than Thursday half way through the payment period). This is important in a national sense, especially in a federation, because grand agreements of the state (i.e. the constitutional documents) are usually agreed upon at a certain time and place and it would represent near-chaos to reopen discussion on amendments at a particular time (this is especially true in Canada given the Meech Lake and Charlottetown accords).
Constitutional conventions, interestingly enough, are not enforceable in the courts (although they will acknowledge their existence and function in our governing system). This is important. A key element of constitutional conventions is that they exist so long as the parties involved believe them to be relevant and applicable. Who these “parties” are can vary but will almost always include the government and the official opposition. Canada would be outraged if the Governor-General refused to invite the duly elected leader of the party with a plurality of seats in the House of Commons to form government. And this would not change the convention regardless of the fact that the Governor-General, by written law, has the right to appoint who-ever they wish to form government, it would incite a constitutional crisis on the merits of the violation of the convention. However, take for example the recent announcement of the Trudeau government to look beyond the regional convention pertaining to the appointment of members of the Supreme Court. This is a convention that the government claims is weak and has no relevance in Canada because it ought to be the most qualified (albeit and apparently functionally bilingual) candidate who should be selected. The convention could very well be changing before us, and this is how they do change, especially when the general public does not raise a stink about the issue being changed (and in this case they actually seem to strongly support the Trudeau government position in the Supreme Court matter).
The Inevitable Unwritten
An appropriate closing is the reflection and observation that it is impossible to truly have a pure written constitution with all functions of the government being entrenched in mandated law. There will always be agreements or what some might call “common sense” and “obvious” functions of the state and government that will go beyond what is written but will not violate it. Additionally, each provision of the constitution calling on a particular state actor to act would require unwritten elements regardless the nature of the conduct of this act. It would certainly be burdensome and inappropriate to list each and every aspect of a certain function of state within the constitution documents.
Recent events within parliament surrounding bill C-14 have cast a light on the possibilities of the two houses of parliament stuck at a deadlock. In actuality, any theorizing was dubbed moot because the House of Commons rejected the proposals from the Senate on bill C-14 and the Senate duly accepted the rejection from the Lower Chamber. Democracy, as the pundit would say, was saved for the day. But there is something inherently wrong in claiming that having an Upper Chamber capable of overriding the Lower Chamber on legislative affairs is an outright offence of democracy and democratic values in Canada. It is certainly worth taking a closer look at the legislative process in Canada in comparison to the democratic process– most people, I wager, would be surprised to understand a difference between the two.
There is no question that if you are reading a blog such as this, and a post such as this, that you have a basic understanding of how laws are made within parliament in Canada. Bills are proposed as Acts of Parliament in either the House of Commons or the Senate. Some bills are “special” compared to others because they originate from the executive– or government (which resides in the House of Commons). The Senate is composed of Senators who are appointed by the Prime Minister of the day (or more technically by the Governor-General on advice from the Prime Minister of the day). Bills are read a certain number of times in each house and are sent to committee for a clause-by-clause review. Each reading stage of the legislative process (there are three in total within each house), have a specific purpose and scope of debate. At the end of the reading stages, each house puts the bill to question (that is to say they vote) and it is moved on the to next step in the process. The final step being Royal Assent, where the Governor-General signs the bill which thus becomes an Act of Parliament and the law-of-the-land. Where things get murky in the process, however, is when legislation is moved between the House of Commons to the Senate and visa-versa. Obviously, all government bills will originate in the House of Commons and be sent to the Senate for further review and eventual approval. But what happens if the Senate rejects a bill proposed by the House of Commons, and more specifically, generated by the government of the day?
Canadians saw this process unfold somewhat between the House of Commons and the Senate recently on bill C-14. The House of Commons passed the bill on Third Reading and sent it to the Senate for further review (never minding the deadline issue at this moment). The debate in the House of Commons on the bill was substantial and focused on the constitutional nature of the bill. In the Senate, the Senators heard testimony from constitutional experts that the bill would have violated Canadian law. The Senators proposed amendments similar to what was proposed by the opposition in the House of Commons in order to avoid a conflict with the Charter. Surely, however, the Senate would be out of line for proposing such amendments over the government and the House of Commons because unlike the Lower Chamber, they are unelected! This is where the debate gets sidetracked by the introduction of the democratic process. The problem is that both processes are separate from one another, and should not mix as closely as it being attempted in this sort of debate.
The democratic process in Canada serves one purpose: the composition of the House of Commons. About every four years (a maximum of five as mandated in the constitution), Canadians participate in a general federal election. Which more accurately should be called federal general elections, because in reality there are over three hundred elections happening across the country during the single general election. The purpose of these elections is to select individual Members of Parliament to serve in Ottawa on behalf of a geographical boundary drawn up based on population (and mandated representation requirements). Once the MPs are selected across the country, they are sent to Ottawa and a government is formed from among their ranks by appointment of the Governor-General. Note, that Canadians play no part in the formation of their government aside from the indirect manner of electing Members of Parliament. A key component of responsible government is that members of the cabinet, the executive body, are appointed from among a pool of elected MPs. This is exactly where the democratic process ends and the legislative process begins. Once a parliament is formed, and more specifically once the House of Commons is formed, the democratic process ends and the legislative process kicks in to full swing. From the basis of responsible government, which sustains a particular ministry through the maintenance of the confidence of the entire House of Commons, the government can participate and dominate the legislative process. This dominance is scalable based on the size of their influence within the House of Commons (the formation of majority or minority governments, for example). The continuance of responsible government permits the appointment of agents of the state such as Senators, who are empowered through the constitution to participate in the legislative process alongside the duly elected government and House of Commons. And while mandates will shift between ministries, generally those agents of state remain empowered within the legislative process, intentionally made to be immune from the democratic process. This is an essential balance between the elite and the populist, and is a key feature of any Westminster parliamentary system.
It is therefore not undemocratic for the Senate to reject any piece of legislation coming from the House of Commons, especially legislation coming from the government benches, because there is nothing that should permit the democratic process from interfering with the legislative process. While principles of democracy are inherent in the system (MPs for example vote by majority, as do Senators), the process itself, the democracy-in-Canada (to fancy a label on it), is not a part of the legislative process. That process exists when the people elect their individual Member of Parliament. The rest is the entire system working as it ought to and churning out lawful decisions of the state in a predictable and stable manner.
The Canadian parliament is not a single institution, rather it is a collection of institutions that work together to craft legislation and implement executive functions of the state. Parliament in Canada can be broadly divided into three distinct yet interconnected institutions; the Crown (represented in the Governor-General), the Senate and the House of Commons. In this post we will briefly examine each institution in light of one another.
In the public law of Canada, the monarch plays a double role as part of parliament and has having “Executive Government” power. The Queen is Canada’s “official head of state” (Public Law: 2006, Craik et al., 153). In practice however the powers of the Queen are exercised by the Governor-General which was formalized in letters patent issued by George VI in 1947. These prerogative powers are governed almost exclusively by constitutional conventions and dictate the relations between the Prime Minister of the day and the Governor-General.
The current reigning Canadian monarch is Queen Elizabeth the Second. Although the identity of the monarch is determined in the United Kingdom, the Crown-in-Canada is a constitutionally and legally distinct entity and thus the Crown is solely Canadian in nature. This is starkly evident when we consider that the Queen cannot act in Canada on powers granted in the UK and she cannot act in the UK on powers granted in Canada. Although many powers and customs concerning the Crown-in-Canada were imported from the UK, Canada has diverted from the UK as a sovereign entity and all of the powers and customs vests in the Crown-in-Canada contain uniquely Canadian conventions that dictate their implementation. This distinction cannot be stressed enough in light of anti-monarchist rhetoric that link the British Crown to Canada.
The uniquely Canadian nature of the Crown can also be seen in the heraldry used in Canada which includes Canadian maple leaves and Canadian designs. A common misconception concerns the Royal Coat of Arms of Canada which are actually a symbol of the monarchy in Canada, and not simply a symbol of Canada (see inlay photo).
The Crown-in-Parliament refers to one aspect of the Crown-in-Canada, specifically it’s function as a parliamentary institution. The Crown summons parliament at the start of a new parliament and at each session within. The Crown gives Royal Assent to bills which have been approved in both Houses of parliament (each their own separate institution within parliament as well). The Crown also gives authority to the Speaker and to Officers of Parliament which is signified in the presence of the Mace and the powers of the Sergeant-at-Arms. The Crown also plays an important role in the formation of government, as it is the Governor-General who summons a Member of Parliament to form government and recommend Ministers of the Crown to join the Privy Council of Canada. The Crown also receives the writs of election for each Member of Parliament and oversees their swearing-in through the Speaker of the House of Commons.
In the physical Parliament of Canada buildings, the Crown resides in the Senate Chamber, although is rarely present for sessions of the Senate.
The Senate of Canada
The composition of the Senate is clearly established in the Constitution Act, 1867. It calls for a Chamber of Senators appointed by the Governor-General (on the advice of the Prime Minister). These members must meet certain residency and financial qualifications but for the most part, whomever the Prime Minister of the day recommends to the Governor-General becomes a Canadian Senator until the age of 75. The Senate was best described by John A. MacDonald during a debate on the proposals for confederation as the “Chamber of sober second thought.” Although it can be argued that the Chamber has been nothing more than an organ of partisan holdings.
The modern Senate has done great for work Canada however has also been the subject of some of the most significant scandals in recent memory.
The Senate has a legislative role in parliament that permits it to propose bills and motions that are also brought before the House of Commons for consideration. The Senate also forms committees which examine legislation that originate in it’s Chamber and from the House of Commons. In the past, Senate committees have championed reports on subjects that would have otherwise received little or not attention in the House of Commons because of a lack of partisan political will. The Senate cannot veto legislation brought to it from the House of Commons. If the Senate refuses to support legislation from the House of Commons, it is sent back to the House and reaffirmed and then it, conventionally, receives Royal Assent. More often than not, legislation being considered by the Senate is often amended over being outright objected upon because Senators acknowledge that they have not been elected by Canadians.
The Speaker of the Senate is appointed by the Governor-General on the advice of the Prime Minister of the day. The Speaker is the chair of all sittings of the Senate and take a seat at the head of the Chamber forward of the Canadian Throne (which belongs to the Governor-General). Some Prime Minister’s have opted to appoint a Senator who has first been elected by the Senate to be Speaker, however most recently, Prime Minister Justin Trudeau opted to advise the Governor-General on an appointment without consulting the Senate. The Speaker of the Senate, like the Speaker of the House of Commons, is the head of the Senate and is their official spokesperson. Together with the Speaker of the House of Commons, the Speaker of the Senate is responsible for security within the parliamentary precinct.
Procedure in the Senate is dictated through the Rules of the Senate of Canada. The Senate Chamber is physically located in Centre Block on Parliament Hill. It is important to note that the Senate is a separate institution of parliament and therefore Senators are subject to codes of conduct and procedure which are determined by the Senators themselves alone. This is an important power of the Senate which gives it authority to investigation and act on its own will without interference from any other institution in parliament, including the Crown and the Cabinet.
The House of Commons
When listing the three institutions of parliament, it is common to leave the House of Commons until the last, however in the scheme of how parliament functions from a democratic standpoint, the House of Commons is the central institution. Within the House of Commons are the elected Members of Parliament who represent Canadians across the entire country. Also, because Canada is a fused-Executive system, the government of the day resides and is held accountable within the House of Commons. For most Canadians, the most engaged institution in parliament will be the House of Commons.
This is evident when Canadians head to the polls in a General Election where candidates run on campaigns across the country for seats in the House of Commons, the outcome of which is used by the Governor-General to determine who forms government.
The head of the House of Commons is the Speaker. They are elected by Members of Parliament following the opening of the first session of each parliament by secret ballot. The Speaker traditionally comes from the government benches, although this is not always the case, especially in a minority parliament where the government of the day does not wish to weaken their partisan position in the House. The Speaker takes their chair at the head of the Chamber forward of the Table where the Clerk of the House of Commons resides.
The House of Commons is the central legislative body in parliament and it is where government bills are introduced. In Canada, the Executive is composed (for the most part) of persons who have been elected to a seat in the House of Commons. In order for a leader to form government in Canada, they must hold the confidence of the House of Commons and thus are subject to scrutiny at all times by all members of the House. This is an important concept in Canadian democracy. Ministers of the Crown serve at the pleasure of the Prime Minister of the day (through the Governor-General) but collectively they are responsible to parliament for their actions (or inaction). This concept is appropriately called responsible government, and it is a key component of Canadian democracy.
Member of Parliament are elected in a first-past-the-post election (currently) 338 ridings across the country. Canadian is a parliament democracy that uses the party system which means that the leader of the party with a plurality of seats in the House of Commons is conventionally invited to form the government following an election. In accordance with the Constitution Act, 1982, the longest term for a parliament is five years but legislation brought forward in 2007 made changes to the Canada Election Act and required election on the third Monday of October every four years.
The rules of procedure within the House of Commons are governed through the Standing Orders of the House of Commons. The House of Commons Chamber is physically located within Centre Block on Parliament Hill. Like the Senate, the House of Commons is an independent institution of parliament. Members vote on their own salaries, benefits, official expenses and procedure. The is largely conducted through the Board of Internal Economy which is chaired by the Speaker of the House of Commons.
There are some great resources available to the public that concern the function of parliament. Your first stop should always be the Parliament of Canada website. From there you an access PARLinfo which has a lot information on the current parliament as well as many in the past. You can follow legislation as it moves though parliament at LEGISinfo. The Governor-General’s website has great outreach information on his role in Canada and his day to day activities with Canadians. I also recommend the parliamentary procedure documents website if you are a procedure wonk at heart like me.
The Oath of Allegiance in Canada has a colourful history. Tracing its origins from the United Kingdom, the young British colonies that would eventually become Canada inherited deep European religious and social tensions that were reflected within the statutory oath of the particular time. In this post we will briefly explore the British roots of the oath of alligiance in Canada and we will trace the historical development of the modern oath.
A Snapshot of the Times: The Victorian Era British Oath
The first British North American colony to gain an elected assembly in what would become Canada was Nova Scotia. This historical body met for the first time in 1758 and, as a result of the fact that a Canadian law had not yet diverged from British statutory and common law, members swore the same oathes of office as MPs of the British parliament in London, England. At that time there were three oaths required of members who had gained elected office; “the oath of allegiance to the King, the oath of supremacy denouncing Catholicism and papal authority, and the oath of abjuration, repudiating all rights of James II and his descendants to the English Throne” (House of Commons Procedure and Practice 2nd Ed, 2009). Naturally, these oaths prevented Catholics and Jews from seeking elected office in the legislative assemblies of the British colonies. The cause of existence of each oath lay in a paranoid monarchy attempting to galvanize the Church of England against Papal authority. To some extent, these fears came with European settlers into the New World (even dipping toward modern times, for example the Kennedy campaign had to address his Catholic faith) but it is safe to conclude that the importance of personal religious faith was low to most British North American settlers. However, the English statutory requirement for the oaths remained and hence their introduction in immature legislative assemblies of British North America.
Prior to the establishment of elected legislative assemblies in North America, London passed the Popish Recusants Act of 1605 which established a new oath of allegiance establishing the spiritual authority of the English Crown. It read:
I, A.B., do truly and sincerely acknowledge, that our sovereign lord, King James, is lawful and rightful King and that the pope neither of himself nor by any authority of Church or See of Rome, or by any other means with any other, has any power to depose the king etc, or to authorize any foreign prince to invade him, or to give licence to any to bear arms, raise tumults, etc. Also I do swear that notwithstanding any sentence of excommunication or deprivation I will bear allegiance and true faith to his Majesty. And I do further swear that I do from my heart abhor, detest, and abjure, as impious and heretical this damnable doctrine and position,–that princes which be excommunicated by the pope may be deposed or murdered by their subjects or by any other whatsoever. And I do believe that the pope has no power to absolve me from this oath. I do swear according to the plain and common sense, and understanding of the same words. (King James VI and I and the Reunion of Christendom, 2000)
In addition to the oath of allegiance, elected members were required to swear the oath of supremacy (preventing Catholics from seeking office):
I, A. B., do utterly testify and declare in my conscience that the Queen’s Highness is the only supreme governor of this realm, and of all other her Highness’s dominions and countries, as well in all spiritual or ecclesiastical things or causes, as temporal, and that no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, pre-eminence or authority ecclesiastical or spiritual within this realm; and therefore I do utterly renounce and forsake all foreign jurisdictions, powers, superiorities and authorities, and do promise that from henceforth I shall bear faith and true allegiance to the Queen’s Highness, her heirs and lawful successors, and to my power shall assist and defend all jurisdictions, pre-eminences, privileges and authorities granted or belonging to the Queen’s Highness, her heirs or successors, or united or annexed to the imperial crown of this realm. So help me God, and by the contents of this Book [the Bible]. (Life in Elizabethan England)
A third, and final, oath was required, the oath of abjuration (preventing Jews from seeking office):
I ..; Do abjure and renounce the Pope’s Supremacy and Authority over the Catholic Church in General, and over my self in Particular; And I do believe that there is not any Transubstantiation in the Sacrament of the Lords Supper, or in the Elements of Bread and Wine after Consecration thereof, by any Person whatsoever; And I do also believe, that there is not any Purgatory, Or that the consecrated Host, Crucifixes, or Images, ought to be worshipped, or that any worship is due unto any of them; And I also believe that Salvation cannot be Merited by Works, and all Doctrines in affirmation of the said Points; I do abjure and renounce, without any Equivocation, Mental Reservation, or secret Evasion whatsoever, taking the words by me spoken, according to the common and usual meaning of them. So help me God. (British History Online)
The Canadian Model: Nova Scotia and the Oaths of Office
When the first legislative assembly met, it had conducted business in similar fashion to that of the Mother Parliament, and thus the three oaths of office were a requirement in order for elected members to take their seats. The result was that Catholics and Jews who were unwilling to take the public oath (and most were) did not take their elected seats or otherwise did not bother with standing for election. At any rate, until 1789 Catholics and Jews were not permitted to vote in the British colonies and “Catholics were not permitted to sit in the Assembly without first taking the declaration against transubstantiation; Jews were also barred from sitting in the Assembly because of the oath of abjuration” (House of Commons Procedure and Practice 2nd Ed, 2009). All of the British colonies at one point had a policy which prevented Catholics and Jews from seeking officer and/or voting in the legislative assembly as a result of the oaths of office.
It was not until the capture of Quebec City that the British Crown began to review the requirement for the oaths of office and offered a concession to the Catholic majority in the former French colony. In 1774, “the Quebec Act 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. The oath of abjuration still prevented Jews from assuming public office” (House of Commons Procedure and Practice 2nd Ed, 2009).
In 1832, Lower Canada passed a law which gave Jews the same rights and privileges as other citizens, the first jurisdiction in the British Empire to do so. 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. At Confederation, the requirement for members of the Senate, House of Commons and provincial legislative assemblies to swear an oath of allegiance was included in the Constitution Act, 1867. (House of Commons Procedure and Practice 2nd Ed, 2009)
The Modern Era: Canadian House of Commons
Regardless of the colourful past of the oaths of office in Canada which were inherited from our European parents, the Canadian House of Commons never had a discriminatory oath for Catholics or Jews. By 1867, and the passage of the British North America Act which established the Dominion of Canada among Upper Canada, Lower Canada and a handful of maritime colonies, the English parliament had departed from the practice of barring Catholics from office in North America. The legislative assemblies in turn broke down restrictions placed on people of the Jewish faith. A year after Confederation, the British parliament passed Promissory Oaths Act, 1868 which established a simple oath, void of references to religious faith. The oath read as follows:
I, (Insert full name), do swear that I will well and truly serve Her Majesty Queen Victoria in the office of (Insert office of). So help me God. (Promissory Oaths Act, 1868)
Conclusion: Why Have an Oath?
It would seem odd that we even have an oath of office given the struggle for human rights when looking in the past. But the reason for the oath is simple and it is contained within a clause of the Magna Carta:
Once the terms had been finalised on 19 June, the rebels again swore allegiance to King John. The later Bill of Rights (1689) included the Oath of Allegiance to the crown, which was required by Magna Carta to be taken by all crown servants and members of the judiciary. (British Library)
Members elected to form a new parliament following an election must meet within one year of the dissolution of the previous parliament. In the case of the recent election, parliament would have had to have met by 2 Aug 16. The Canadian Parliament is summoned by the Governor-General of Canada on the recommendation of the Prime Minister. The summons itself does not just occur following an election, it also happens following prorogation of parliament, however the mechanism remains the same with the Governor-General issuing the proclamation on the recommendation of the Prime Minister.
The 42nd Parliament of Canada was summoned by Governor-General David Johnston 13 Nov 15 for members retuned from the 42nd General Election to “appear in person, on Thursday, the third day of December, 2015, at one in the afternoon, at Our City of Ottawa, for the DISPATCH OF BUSINESS, to treat, do, act and conclude on those things that Our Parliament of Canada may, by the Grace of God, ordain” (Canada Gazette, 2015). This proclamation was issued on recommendation provided by Justin Trudeau who commands a Liberal majority in the House of Commons. Trudeau was summoned to form government on 20 October 2015 after the Governor-General had met with outgoing Prime Minister Stephen Harper who “signalled his intention to resign as prime minister” (Rideau Hall Press Release, 2015). On 4 November 2015, the Governor-General swore Justin Trudeau and his 30 person cabinet into office and the 29th Canadian Ministry had been formed.
Members who won seats in the House of Commons meanwhile take the Oath or Solemn Affirmation of Alliance and register on the Test Roll. Following an election, returns are made from the Chief Electoral Officer to the Clerk of the House of Commons that officially recognize a person as having won a certain electoral district in Canada. The notice is published in the Canada Gazette, an example of which can be found here. After notice is given, the members make the oath and sign the Test Roll before the Clerk at a time pre-arranged between the member and office of the Clerk or during a ceremony held prior to the opening of parliament (House of Commons Procedure and Practice 2nd Ed, 2009). The Clerk of the House of Commons issues the Oath or Solemn Affirmation of Allegiance and members sign the Test Roll at the Table of the House of Commons. From this point on, members are permitted to rise and speak in the House of Commons and cast a vote in questions put before it. Every member returned to the House in the previous election takes the oath and signs the Test Roll for each parliament formed following an election (House of Commons Compendium of Procedure, 2015). Thus, each Test Roll is unique to each Canadian Parliament.
Members who were appointed by the Governor-General on the recommendation of the Prime Minister to become members of the 29th Canadian Ministry and Privy Counsellors took an additional oath at Rideau Hall in the presence of the Governor-General. That oath reads as follows:
I, __________, do solemnly and sincerely swear (declare) that I shall be a true and faithful servant to Her Majesty Queen Elizabeth the Second, as a member of Her Majesty’s Privy Council for Canada. I will in all things to be treated, debated and resolved in Privy Council, faithfully, honestly and truly declare my mind and my opinion. I shall keep secret all matters committed and revealed to me in this capacity, or that shall be secretly treated of in Council. Generally, in all things I shall do as a faithful and true servant ought to do for Her Majesty. So help me God. (Rideau Hall Swearing-in Ceremony Fact Sheet, 2015)
Additionally, Privy Counsellors and members of Trudeau’s cabinet who are not officially appointed Privy Counsellors (for example, Secretaries of State who assist certain Ministers) take the Oath of Office which reads:
I, _________, do solemnly and sincerely promise and swear (declare) that I will truly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as… So help me God. (Rideau Hall Swearing-in Ceremony Fact Sheet, 2015)
Members who do not wish to swear an oath may replace “swear” with “declare” and the phrase “so help me God” is removed.
The opening of the 42nd Parliament of Canada will immediately follow the summons which will include a Speech from the Throne delivered by Governor-General David Johnston in the Senate Chamber. We will explore that process in a later post.
Image: Prime Minister Justin Trudeau signing the Register after taking the Oath of Office. With Governor-General David Johnston. Source.
The wake of the 42nd General Canadian election the House of Commons has returned a majority Liberal government under the leadership of Justin Trudeau. As we discussed earlier, one of his first priorities is the appointment of the 29th Canadian Ministry and what will become the Liberal government cabinet (set to happen on 4 Nov 15 with a Swearing-in Ceremony at Rideau Hall). These collective appointments will become the executive arm of government, one of the most important parliamentary institutions, so let’s take a look at what goes into building a modern Canadian cabinet, and the procedure and law that surrounds its creation.
House of Commons Procedures and Practice 2nd Ed explains executive authority as “vested in the Sovereign and exercised by the Governor in Council.” It goes on to further explain that this authority is exercised “by and with the advice and consent of the Queen’s Privy Council for Canada; in practice, it is the Governor General acting with the advice and consent of the Prime Minister and Cabinet.” Privy Councillors are appointed by the Governor General on the advice of the Prime Minister and these appointees are styled “Honourable” for life (the Prime Minister being styled “Right Honourable” for life).
Although the terms “Ministry” and “Cabinet” are commonly used interchangeably, in fact a Ministry is composed of both Cabinet Ministers and Secretaries of State. Most Cabinet appointees are designated Ministers in charge of government departments (or ministries) although some may be given responsibility for an important policy portfolio. Secretaries of State are assigned to assist Cabinet Ministers in specific areas within their portfolios. They are members of the Ministry (sworn to the Privy Council) but not of Cabinet. In addition, the Parliament of Canada Act provides for the appointment of Parliamentary Secretaries (Members who assist Cabinet Ministers but who are not members of the Ministry). Finally, provision may be made for the appointment of an Acting Minister in the event a Minister is absent or incapacitated, or the office is vacant.
The appointments made in the formation of the Ministry and cabinet represent one of the most important decisions made by a governing Prime Minister. Justin Trudeau has an 184 member strong caucus from which to draw his Ministry and build a cabinet. He has already begun to inform Canadians on how he will approach the formation by the inclusion of 50/50 men and women and a reach out to aboriginal Canadians. Considering that the Liberal party swept through 4/5 Canadian regions, Trudeau will have a significant pool of people to draw experience and representation on his cabinet. House of Commons Procedure and Practice 2nd Ed explains the Prime Minister’s prerogative regarding the formation and composition of the cabinet:
A Prime Minister’s choice of Ministers is influenced by political considerations respecting, for example, geography, gender and ethnicity. However, the Prime Minister alone decides on the size of the Ministry and what constitutes an appropriate balance of representation.
The exact size of Canadian Ministries and cabinets have fluctuated and for the most part have grown over the course of Canada’s history. Pierre Trudeau remarked in his Memoirs in a caption for a photo showing his cabinet that the photo was from a “time when cabinets could fit around a single table.” In the featured image for this post, Prime Minister John Diefenbaker is seen with Her Majesty Queen Elizabeth II, Prince Philip, Governor General Vincent Massey and the entire 18th Canada Ministry (National Film Board of Canada, MG01/XVII/JGD438). The inline photo is from the swearing-in ceremony of the 28th Canadian Ministry chaired by Stephen Harper. You can see the significant difference in size and visible representation from 1957 to 2006.
The results of 42nd Canadian General Election. Liberal candidates from across the country were elected to 184 seats in the House of Commons, earning a majority government under the leadership of Prime Minister in-waiting Justin Trudeau. The Conservative Party of Canada saw candidates elected in 99 ridings and will form the Official Opposition in the 42nd Parliament of Canada. Trudeau will (within the next two weeks) appoint the 29th Canadian Ministry from among his 184-strong caucus. The NDP was reduced to third party status with 44 seats and the Bloc next in line with 10 seats. Green Party leader Elizabeth May held her Saanich–Gulf Islands riding on Vancouver Island. But the results of this election are probably not news to you. The question is what happens now that the election has finished and we have a new majority government in Canada?
First let’s understand what has happened in parliament as a result of the election. Most importantly, the 41st Parliament of Canada has given way to the 42nd Parliament. This is the largest parliament in Canadian history with 338 seats distributed evenly across ridings roughly equally representing over 35-million electors. The direct result of casting a ballot on 19 Oct 15 was the formation of this parliament. This is why you were not handed a ballot with the name Justin Trudeau, Thomas Mulcair, Stephen Harper or Elizabeth May on it (unless you lived in their particular riding of course).
As a result of the formation of the 42nd Parliament of Canada, a new ministry is now required. Through responsible government, the Governor-General is compelled to appoint persons who have been duly elected into parliament to form the Canadian Ministry and who gets appointed to lead it depends on who can command the confidence of the House of Commons. Once a new parliament is formed, convention dictates that the Governor-General assess parliament to determine the potential requirement for new ministry (or the continuance of the current) and designates a Prime Minister, if required. Justin Trudeau is currently technically the Prime Minister in-waiting because he has not been designated by the Governor-General (that I know of as of this being posted), but that is a really technical detail; Justin Trudeau will lead the next ministry and will become Prime Minister with a majority government. During this entire period, the current Prime Minister has not been relieved of his responsibility as the leader of the country. Stephen Harper at the time of this publication is (was) still Prime Minister of Canada and leader of the 28th Canadian Ministry. Justin Trudeau has indicated that he will appoint a new cabinet in two weeks which will start with a swearing-in ceremony at Rideau Hall overseen by the Governor-General of Canada. This will be the official start of the 29th Canadian Ministry under Justin Trudeau.
This all might seem very technical but there are some implications for our country. Suppose, for example, that something tragic happened in the country, no doubt Stephen Harper would be legally permitted to issue orders if required. He might listen to input from Trudeau, as the Prime Minister designate, but whether there is an exact requirement is legally dubious. On the flip side, suppose for some reason Justin Trudeau was unable to fulfill his duties as an MP and thus as Prime Minister (for example, a major illness suddenly discovered). A new person could be appointed by the Liberal caucus and eventually elected by the party membership to take his place. This could happen at any time during the ministry as well, however it would start a new ministry (and Trudeau would be required to resign). But these are topics for other posts, the important thing is that the Prime Minister from a legal standpoint is just the person who can marshal command of the House of Commons (all major federal parties have developed internal mechanisms for how this person is elected and legitimized within the party and parliament through convention).
Now, we may not know to what extant Harper may still exercise power as out-going Prime Minister but we do know that Trudeau and his soon-to-be ministry are moving in on parliament. In the coming two weeks Harper will move his office out of the Langevin Block (home of the PMO and Privy Council) and Justin Trudeau will move in. There are already indications that public servants at the Privy Council (the bureaucratic arm of the PMO) have begun to comb through the Liberal platform to present options on how to implement their promises. In short order, briefing material will be created for each soon-to-be-appointed minister that will include a letter from the leader explaining his vision for their portfolio and sometimes a letter from the Clerk of the Privy Council of Canada. Most of this material has most likely already begun to be put together by civil servants across the country.
Trudeau himself will be busy combing through his caucus to build a representative government. Cabinet-making in Canada has always been a particular art. All of the way back to the United Province of Canada when cabinet required an absolute balance between French and English (often with two leaders speaking different policy agendas). In modern political times the cabinet must still be balanced with representation from Quebec, but also from Eastern Canada (where the Liberals preformed very strongly), Central Canada and Western Canada. The cabinet will also have to include a proportional number of woman and aboriginals reflecting the values of Canadians. The Liberal government will need new-Canadians and people of all perspectives in order to build a cabinet which is representative of the people. And we also cannot forgot competency, which is required of every minister in order to quarterback the leaders’ vision for the government and implementation of policy within their respective departments.
So the short answer to the question of what is happening post-election is that Harper remains Prime Minister until the new ministry is sworn-in and the Liberals, in particular Justin Trudeau, are extremely busy.