Prepared by James R. Robertson
Law and Government Division
CRIMINAL CHARGES AND PARLIAMENTARIANS
Whenever members of the House of Commons or the
Senate are charged or convicted of criminal offences, questions
invariably arise as to the effect of such charges and convictions
on the person's right to continue as a member of the House or Senate.
The laying of a criminal charge against a member
of the House of Commons or Senate has no effect in terms of his
or her eligibility to remain in office. Even if convicted, a Parliamentarian
will automatically lose his or her seat only if sentenced to a term
of imprisonment of two years or more. (Until 3 September 1996, Parliamentarians
had to be sentenced to term of imprisonment exceeding five years
before they automatically lost their seats.) In other cases, however,
the House or Senate could take action to expel the member.
In the case of the House of Commons, the Parliament
of Canada Act and the Canada Elections Act make certain people ineligible
for membership. Those convicted of a corrupt or illegal practice
under the Canada Elections Act within the previous five years,
those not qualified to vote, or those who hold certain offices (such
as judges, sheriff, Crown Attorney, member of the Council of the
Yukon or the Northwest Territories) are prohibited from being candidates
in an election. It is not possible to be a member of both the House
of Commons and a provincial legislature at the same time.
In the Senate, the Constitution Act, 1867 provides
certain requirements of age, citizenship, residency and property
that Senators must meet in order to be appointed, and continue to
meet in order to retain their seats. Section 31 of the Constitution
Act, 1867 prescribes other circumstances in which a Senator loses
his or her seat: bankruptcy, absence from two consecutive sessions
of Parliament, being convicted of treason or "of Felony or
of any other infamous Crime."
Once a person is elected to the House of Commons,
there are no constitutional provisions and few statutory provisions
regarding the ousting of the member. (The Parliament of Canada
Act states, however, that a member who is elected to a provincial
legislature automatically loses his or her seat in the Commons.)
Section 750 of the Criminal Code, which applies
to both members of the Senate and the House, provides:
750. (1) Where a person is convicted of an indictable
offence for which the person is sentenced to imprisonment for
two years or more and holds, at the time that person is convicted,
an office under the Crown or other public employment, the office
or employment forthwith becomes vacant.
(2) A person to whom subsection (1) applies
is, until undergoing the punishment imposed on the person or
the punishment substituted therefor by competent authority or
receives a free pardon from Her Majesty, incapable of holding
any office under the Crown or other public employment, or of
being elected or sitting or voting as a member of Parliament
or of a legislature or of exercising any right of suffrage.
It is important to note that this section applies
only in cases where a member of the House of Commons or Senate is
convicted of an indictable offence and sentenced to a term of imprisonment
of two years or more. Thus, if a Parliamentarian is charged with
a summary offence, or an indictable offence with a maximum imprisonment
of less than two years, the section has no application. A Parliamentarian
may be charged with a hybrid offence (where the Crown can elect
whether to proceed summarily or by indictment); if the decision
is for indictment, it would still be the actual sentence that was
relevant, not the potential penalty.
Section 750(2) provides that a person who is convicted
of an indictable offence and sentenced to a term of imprisonment
of two years or more is barred from being a member of Parliament.
He or she is not entitled to be elected, or to sit as a member,
or to vote. Thus, Parliamentarians will lose their seats if they
come within the terms of the section. The only example of this occurred
in 1946; after Fred Rose had been convicted of treason and sentenced
to six years imprisonment, the House declared his seat vacant
and ordered a new election.
(To the extent that section 750(2) disqualifies
a person from voting, it could possibly be challenged as a violation
of section 3 of the Canadian Charter of Rights and Freedoms, as
have been the provisions of the Canada Elections Act, which restrict
the right to vote of some prison inmates.)
Notwithstanding the legal provisions, however,
by virtue of parliamentary privilege, the Senate and the House of
Commons have the right to expel their members. This is a power that
has seldom been exercised, partly because it is so extreme. On two
occasions in the 1870s Louis Riel was expelled from the House of
Commons and in 1891 Thomas McGreevy was expelled after being judged
to be guilty of a contempt of the House. In the Senate, the procedure
for removing a Senator appears to be somewhat different, since Senators
are summoned by the Governor General. The Senate has declared seats
to be vacant in the past -- usually on the basis that the Senator
missed two consecutive sessions -- but it seems that an address
to the Governor General seeking the removal of a Senator might also
In the past, the authority of the House over its
members was considered to be absolute; it was said that the House
could expel a member "for such reasons as it deems fit."
This discretion may have been somewhat circumscribed with the advent
of the Canadian Charter of Rights and Freedoms. It is arguable that
the House would have to proceed in a reasonable and fair manner,
giving the member involved an opportunity to answer any charges.
A Parliamentarian who is convicted of a summary
criminal offence or an indictable offence carrying a sentence of
less than two years could, therefore, still be expelled from the
House or Senate, but expulsion would require a resolution of the
chamber, rather than being automatic.
Someone who is in jail for an extended period of
time is unlikely to be able to carry out his or her parliamentary
functions or serve constituents properly. (A Senator who was sentenced
to a lengthy prison term would risk having his or her seat declared
vacant on the basis of missing two consecutive sessions.) Before
taking action, however, the House or the Senate might want to await
the outcome of any appeals. Whether or not the crime pertained to
the Parliamentarians parliamentary functions might also be
relevant, although making such a distinction is not always easy
It should be noted that currently persons imprisoned
in correctional institutions are disqualified from being candidates
in an election for the House of Commons. Thus, a person imprisoned
for less than two years could remain a member of the House of Commons
but could not stand for re-election while still in prison.
While members can be expelled from Parliament,
it is not easy to prevent their running for re-election in any resulting
by-election or election. In 1986, the Nova Scotia House of Assembly
enacted a law disqualifying persons convicted of certain criminal
offences from being nominated as a candidate or standing for election
to the legislature for a period of five years. The law had been
precipitated by the case of William ("Billy Joe") MacLean,
who challenged it and succeeded in having it struck down by the
Nova Scotia Supreme Court as a violation of his Charter rights and
those of the voters who would have been denied a right to cast their
ballots for him.
In summary, the laying of criminal charges against
a member of the House of Commons or Senate carries no implications.
If a member is convicted, he or she can continue to sit unless sentenced
to a term of imprisonment of two years or more. The House and the
Senate could choose to expel a person in other circumstances, but
this power is very rarely used. Certain provisions of the Canadian
Charter of Rights and Freedoms might be relevant in such cases.