CANADIAN HOUSE OF COMMONS
James R. Robertson
Law and Government Division
OATHS AND THE HOUSE OF COMMONS
FAILURE OR REFUSAL TO TAKE THE OATH
BREACH OF AN OATH OF ALLEGIANCE
CASES INVOLVING OTHER LEGISLATURES
CASES IN OTHER COUNTRIES
WHAT CONSTITUTES A VIOLATION OR BREACH OF THE OATH?
CANADIAN HOUSE OF COMMONS
Every member of the Senate and the House of Commons of Canada shall before taking his Seat therein take and subscribe before the Governor General or some Person authorized by him, and every Member of a Legislative Council or Legislative Assembly of any Province shall before the Lieutenant Governor of the Province or some Person authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act; …
I, A.B. do swear, That I will be faithful and bear true Allegiance to Her Majesty Queen Victoria.Note. The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the Time being is to be substituted from Time to Time, with Proper Terms of Reference thereto.
I, ……………., do solemnly, sincerely and truly affirm and declare the taking of an oath is according to my religious belief unlawful, and I do also solemnly, sincerely and truly affirm and declare that I will be faithful and bear true allegiance to her Majesty Queen Elizabeth the Second.
It is not the Oath that makes a person a Member of the House. The person must be a Member before being sworn in. Unless first duly elected under the terms of the Canada Elections Act, R.S.C. 1985, c. E-2, one cannot take the Oath. The object of the Oath is to allow the Member to sit in the House. In accordance with this interpretation of the law, Members-elect, as soon as their election is reported to the Clerk by the Chief Electoral Officer, may receive such requisites as are necessary for the performance of their public duties. But if, for some reason or other, a Member were precluded from taking the Oath and sitting in the House, the person would be deprived of any such allowances.(2)
For the purpose of this section, … a person shall be deemed to have become a member of the House of Commons on the day last fixed for the election of a member of the House of Commons for the electoral district represented by the person.
Your Committee are therefore of opinion that the seat of Mr. Orton, the member of Centre Wellington, is not affected by his having sat and voted in Your Honourable House before he took the Oath provided, as aforesaid.Your Committee is further of opinion that the votes of Mr. Orton, before he took the prescribed Oath, should be struck out of the Division List and Journals of Your Honourable House, as he had no right to sit and vote until he had taken that Oath.(4)
Mr. Bradlaugh therefore sat and voted subject always to the risk that the law officers of the Crown might proceed against him for penalties incurred and prove to the satisfaction of a jury that having no religious belief he had not taken the oath within the meaning of the Parliamentary Oaths Act.(8)
Should a member violate his oath he would be amenable to the penalty of not being allowed to sit in the House of Commons. He may be suspended from taking part in the sittings while still remaining a member of Parliament, or, in a case of extreme gravity, a Bill might be passed to annul his election. It may happen, when a state of war exists, that a member of Parliament makes, either outside or on the floor of the House, statements detrimental to Canada and favourable to the enemy. This would be in violation of this oath because allegiance to the King means allegiance to the Country, and the offence would be liable to punishment by the house. The power of dealing with treason is inherent in the Parliament of every country.(9)
Despite Howe’s threats in his private letters to England, he assured Major General Hastings Doyle, who was soon to replace Williams as governor, that he would use only constitutional methods to gain repeal. Howe, thus, intended to obey the law of the land, a law which included the act of union. He was not only prepared to take his seat in the Canadian Parliament but he also borrowed $1,000 from W.J. Stairs to enable him to make the trip to Ottawa.(10)
I, (full name of the Member), swear (or solemnly affirm) that I will be loyal to the people of Québec and that I will perform the duties of Member honestly and justly in conformity with the constitution of Québec.
Writers on parliamentary law (Beauchesne, 4th ed) state that the oath of allegiance to the Queen required by section 128 of the British North America Act refers to allegiance to the country, while the oath required by section 15 of the National Assembly Act is an oath of allegiance to the people and Constitution of Quebec.(18)
Having, by serious and disloyal utterances at a public meeting … been guilty of conduct unfitting him to remain a Member of this House and inconsistent with the oath of allegiance which he has taken as a Member of this House … .(20)
the fact that an Honourable Member holds views which are vigorously opposed by other Honourable Members can in no sense be allowed to detract from his right to present them.A historical perspective on Parliament here in Canada and in Great Britain reveals ample precedent for the presence in the House of duly elected Members whose ultimate goal may be at odds with, even inimical to, the constitutional status quo.Only the House can examine the conduct of its Members and only the House can take action if it decides action is required. Should the House decide that an Honourable Member has in some way committed a contempt, then it is for the House to take appropriate steps.(22)