The Constitution and Statutes

Canadian parliamentary institutions took shape well over 250 years ago. Successive British statutes adopted specifically for the colonies which later formed Canada, most notably the Constitutional Act, 1791 and The Union Act, 1840, came to prescribe, in increasing detail, several basic procedural provisions.12 Many of these provisions were later included in the Constitution Act, 1867, which stated in its preamble that Canada shall have a constitution similar in principle to that of the United Kingdom, which is what governed each of the founding provinces before Confederation.13

Sections of the Constitution Act, 1867 which can be traced back to The Constitutional Act, 1791 stipulate that all questions arising in the House are to be decided by a simple majority, with the Speaker having a casting vote in the case of a tie, and that all Members must take a prescribed oath before being allowed to take their seat in the House.14 Those sections of the Constitution Act, 1867 which can be traced back to The Union Act, 1840 stipulate that on first assembling, the House must elect a Speaker, that it must also proceed to elect another Speaker in the case of a vacancy in that office due to death, resignation or some other cause, that the Speaker shall preside at all meetings of the House, that the quorum of the House shall be 20 Members, and that all requests for the raising or spending of money must originate in the House of Commons and must be recommended to the House by the Governor General.15

In some cases, the inclusion of a constitutional provision was predated by a practice already in place. Beginning in 1758, the Nova Scotia House of Assembly, for example, followed the practice of electing a Speaker as the first order of business of a new legislature, despite the absence of a constitutional provision to that effect.16 Similarly, both Upper and Lower Canada’s legislative assemblies followed the same practice of electing a Speaker17 and had quorum provisions in their rules before a quorum of 20 was statutorily provided for in The Union Act, 1840.18

In other cases, a procedural difficulty experienced in a previous assembly led to the inclusion of specific constitutional provisions. For example, section 47 of the Constitution Act, 1867, which provides for the House to elect another of its Members to exercise the functions of the Speaker during the latter’s absence, sought to anticipate the possible recurrence of a situation that had arisen when, on at least one occasion between 1840 and 1866, the Legislative Assembly of the Province of Canada had to adjourn due to the illness of the Speaker.19

Perhaps the most procedurally significant parts of the Constitution Act, 1867, however, are those which provide a statutory basis for the privileges enjoyed by the House. The Constitution Act provides that “the privileges, immunities, and powers to be held, enjoyed and exercised” by the House and its Members are to be “defined by Act of the Parliament of Canada”, with the proviso that such privileges, immunities and powers may not exceed those enjoyed by the British House of Commons and its Members.20 In addition, the Supreme Court of Canada has affirmed that the Preamble to the Constitution Act, 1867 confers upon the House of Commons the inherent privileges necessary to carry out its functions.21 Therefore, the House of Commons has acquired as one of its more important privileges the exclusive right to regulate its own internal affairs and to control its own agenda and proceedings.

Within these constitutional parameters, the Parliament of Canada enacted a number of procedurally important statutory provisions, many of which are found today in the Parliament of Canada Act.22 Of procedural significance to the House, it provides for: the power of the House and its committees to administer oaths to witnesses appearing either at the Bar of the House or before a committee;23 procedures to be followed when Members resign or when seats are otherwise vacated;24 conflict of interest rules applicable to Members;25 a Deputy Speaker’s ability to act in the Speaker’s absence;26 the existence and remuneration of Parliamentary Secretaries;27 the remuneration of Members of Parliament;28 the existence and management of the Library of Parliament;29 and the establishment of the Board of Internal Economy to act on all financial and administrative matters respecting the House.30 In addition to the Parliament of Canada Act, other statutes enable the House to undertake some action or provide for particular forms of proceedings of the House.31