In Canada, all citizens are subject to the ordinary laws of general application, both criminal and civil. There is no exemption for parliamentarians, nor is there any immunity or special rights related to their parliamentary functions, outside the narrowly defined application of parliamentary privilege.1
Whenever a member of the Senate or the House of Commons is charged with or convicted of a criminal offence, questions invariably arise as to the effect of such charges or convictions on the person's right to continue as a member of the Senate or the House.
In general, the laying of criminal charges against a member of the Senate or the House of Commons has no immediate legal implications with respect to their right to remain in office, with the exception of a procedure applicable to senators in certain situations. However, in the case of a conviction for a criminal offence, the legal implications with respect to the parliamentarian's right to keep their seat and their future eligibility are more serious. In all cases, both houses of Parliament retain the power to expel members, whether or not they have been convicted of a criminal offence.
This publication discusses measures that may be taken by the Senate and the House of Commons when criminal charges are laid against a parliamentarian, the implications of a conviction for criminal conduct, and the power to expel a parliamentarian under parliamentary privilege.
Although the legislation does not provide for any automatic consequences following the laying of criminal charges against a senator or a member of Parliament, both houses of Parliament may take preventive disciplinary action to protect the dignity and integrity of the institution.
Both the Senate and the House of Commons have the authority to order a leave of absence or to suspend a member for a period that may extend to the life of a parliamentary session.2 Criminal charges need not be laid for a member to be placed on leave or suspended. Since its creation, the Senate has ordered two leaves of absence and four suspensions.3 In the House of Commons, no member has ever been suspended because of criminal charges laid against them.
The Senate has a procedure in place that is automatically followed if a senator is charged with a criminal offence for which he or she may be prosecuted by indictment. Under the Rules of the Senate,4 a senator in this situation is granted leave with pay during which he or she may not attend sittings of the Senate or its committees. This leave of absence lasts until one of the following conditions is met:
This procedure was followed in the case of Senator Raymond Lavigne. In June 2006, Senator Lavigne was expelled from the Liberal caucus for allegedly misusing Senate funds for personal use. Upon a referral from the Senate, the Royal Canadian Mounted Police launched an investigation in which Mr. Lavigne was charged with fraud over $5,000, breach of trust and obstruction of justice. After the charges were laid, Senator Lavigne was granted a leave of absence in accordance with the procedure set out in the Rules of the Senate.6 He was therefore unable to sit in the Senate or participate in committee proceedings during his trial.
On 11 March 2011, the Ontario Superior Court convicted Mr. Lavigne of fraud over $5,000 and breach of trust.7 On 21 March 2011, he resigned from the Senate. He was sentenced to six months' imprisonment and six months' house arrest.8
No procedure for an automatic leave of absence exists in the House of Commons.
The Constitution Act, 1867,9 the Canada Elections Act 10 and the Rules of the Senate set out rules that automatically apply when a senator or member of Parliament is convicted of certain criminal charges. In general, there are two categories of legal consequences: those affecting a parliamentarian's right to hold his or her seat, and those affecting his or her eligibility to hold a seat in Parliament.
A few legal provisions specifically address the consequences of a conviction on a parliamentarian's right to hold his or her seat.
Section 750(1) of the Criminal Code,11 which applies to members of both the Senate and the House, stipulates the following:
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.
Parliamentarians automatically lose their seat if they fall within the terms of this section. This has happened only once, in 1946: after MP Fred Rose was convicted and sentenced to six years' imprisonment, the House declared his seat vacant and ordered a new election.12
It is important to note that section 750 of the Criminal Code applies only in cases where a member of the House of Commons or the 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 subject to a maximum term of imprisonment of less than two years, section 750 does not apply. If a parliamentarian is charged with a hybrid offence (where the Crown can choose whether to proceed summarily or by indictment) and the decision is made to proceed by indictment, it is the actual sentence imposed that is relevant, not the potential penalty.
Section 502 of the Canada Elections Act sets out other situations in which a conviction automatically results in the loss of the right to sit in the House of Commons. Under section 502(3), any person who is convicted of an illegal practice listed in section 502(1) (e.g., knowingly exceeding the election expenses limit) or a corrupt practice listed in section 502(2) (e.g., making a false statement to have a person deleted from the Register of Electors) becomes ineligible to sit in the House of Commons for five years (in the case of an illegal practice) or seven years (in the case of a corrupt practice).
With respect to the Senate, the Rules of the Senate provide that a senator who is convicted of a criminal offence in proceedings by indictment is automatically suspended from the time of the sentence (Rule 15‑5(1)) and ceases to receive a sessional allowance (Rule 15‑3(1)), unless he or she is discharged.13 The suspension continues until one of the following conditions is met:
Section 31 of the Constitution Act, 1867, prescribes other circumstances in which a senator's seat becomes vacant: bankruptcy, absence from two consecutive sessions of Parliament, or being convicted of treason or “of Felony or of any infamous Crime.” To date, no seat in the Senate has been declared vacant on the grounds that a senator has been convicted of treason, felony or an infamous crime. It is therefore somewhat unclear which criminal offences are contemplated by these terms. Section 33 of the Constitution Act, 1867, however, provides that it is for the Senate, not the courts, to make this determination.
Losing a seat in Parliament as a result of a criminal conviction does not, on its own, prohibit a parliamentarian from seeking a new mandate. However, some legislative provisions prescribe circumstances in which a person is considered to be ineligible to hold a seat owing to a criminal conviction.
Section 750(2) of the Criminal Code 15 provides that a person referred to in section 750(1) – that is, a public office holder 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, to sit as a member, to vote in the Senate or the House of Commons or to exercise any right of suffrage. It should also be noted that, to the extent that section 750(2) disqualifies a person from voting, it could possibly be challenged as a violation of section 3 (democratic rights of citizens) of the Canadian Charter of Rights and Freedoms (the Charter),16 as have been the provisions of the Canada Elections Act restricting the voting rights of some prison inmates.17
In addition, the Canada Elections Act prohibits certain categories of people from standing for election. Section 65 of the Act lists these categories, two of which relate to criminal offences:
Under this provision, individuals who are imprisoned in correctional institutions are currently disqualified from being candidates in an election for the House of Commons. Thus, a person who is 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.
In fact, however, it may be difficult to prevent a former member of Parliament from standing for election, even if he or she has been convicted of criminal acts. In 1986, the Nova Scotia House of Assembly enacted a law disqualifying persons convicted of certain criminal offences from being nominated as candidates or standing for election to the legislature for a period of five years. The law was passed after William (“Billy Joe”) MacLean was expelled from the Nova Scotia legislature after pleading guilty to four counts of issuing false receipts for his expenses as a member of the House of Assembly. Mr. MacLean succeeded in having the law struck down by the Nova Scotia Supreme Court as a violation of his Charter rights and the rights of the voters who would have been denied the chance to vote for him.18
Although the rights and immunities of parliamentarians under parliamentary privilege include freedom from arrest in civil actions, they offer no protection against the laying of criminal charges. On the other hand, the doctrine of parliamentary privilege includes disciplinary powers that give the Senate and the House of Commons the right to expel their members, whether or not they have been convicted of a criminal offence.19 To do so, the chamber in question must pass a resolution to this effect.
The power of the Senate and the House of Commons to expel members was described by Chief Justice Beverley McLachlin (then McLachlin J.) of the Supreme Court of Canada, in her concurring reasons in Harvey v. New Brunswick,20 a case involving a member of the provincial legislature who was expelled after being found guilty of corruption under the New Brunswick Elections Act:
If democracies are to survive, they must insist upon the integrity of those who seek and hold public office. They cannot tolerate corrupt practices within the legislature. Nor can they tolerate electoral fraud. If they do, two consequences are apt to result. First, the functioning of the legislature may be impaired. Second, public confidence in the legislature and the government may be undermined. No democracy can afford either.
When faced with behaviour that undermines their fundamental integrity, legislatures are required to act. That action may range from discipline for minor irregularities to expulsion and disqualification for more serious violations. Expulsion and disqualification assure the public that those who have corruptly taken or abused office are removed. The legislative process is purged and the legislature, now restored, may discharge its duties as it should.
The power to expel members for disciplinary reasons has seldom been exercised, partly because it is so extreme. In the 1870s, Louis Riel was expelled on two occasions from the House of Commons, and in 1891, Thomas McGreevy was expelled after being judged to be guilty of contempt of the House.21
In the Senate, no senator has ever been expelled for disciplinary reasons, although the Senate has declared seats to be vacant in the past, usually because the senator missed two consecutive sessions. Questions have arisen about whether the Senate has the right to expel members for disciplinary reasons, mainly because this basis does not appear in section 31 of the Constitution Act, 1867, which specifies the circumstances in which the Senate may disqualify a senator and declare the seat vacant. However, it is not clear whether the list contained in section 31 is exhaustive.
This issue was addressed by the Standing Senate Committee on Ethics and Conflict of Interest for Senators in a May 2017 report.22 The report dealt with the sanctions to be imposed on Senator Don Meredith based on the findings of the Senate Ethics Officer and the committee that the senator had engaged in an inappropriate sexual relationship with a teenage girl. On the basis of a legal opinion, the committee argued that the Senate had the power to expel members and recommended that “Senator Don Meredith be expelled from the Senate and that his seat be declared vacant.” 23 However, Senator Meredith resigned from the Senate before the report was adopted. The report therefore became unnecessary and was discharged from the Order Paper.24
The power to expel is generally considered to be a discretionary privilege that is absolute, although it may be somewhat restricted by the Charter. In Harvey, the Supreme Court of Canada looked closely at the matter of parliamentary privilege in the context of the consequences of criminal convictions. It was argued that the member's expulsion and disqualification from holding office in the future violated his section 12 Charter rights, because these consequences constituted cruel and unusual treatment or punishment (section 12 guarantees individuals protection from cruel and unusual punishment in Canada). The Court rejected this argument. While Justice Gérard La Forest, writing for the majority, found that the consequences did not amount to cruel and unusual punishment, Justice McLachlin expressed the view that “the disqualification for office raised in this case falls within the historical privilege of the legislature and is hence immune from judicial review.” 25
In summary, the laying of criminal charges against a member of the Senate or the House of Commons generally carries no immediate legal implications. However, in the case of the Senate, a procedure for automatically granting a leave of absence is in place when the Crown proceeds by indictment. If a member of the House of Commons is convicted, he or she may continue to sit, unless sentenced to a term of imprisonment of two years or more. In the Senate, there is an automatic procedure for suspension, which can lead to expulsion, when a senator is convicted of a criminal offence in proceedings by indictment.
In all cases, the House of Commons and the Senate have the power to expel members who are facing criminal charges or are convicted, even if they are not sentenced to a term of imprisonment of two years or more. However, this power is rarely used and may be somewhat restricted by the Charter.
* This publication is a revised version of publication 2012‑38‑E, Criminal Charges and Parliamentarians, prepared by Erin Virgint, Parliamentary Information and Research Service, and James Robertson, formerly of the Library of Parliament. [ Return to text ]
† Papers in the Library of Parliament’s In Brief series are short briefings on current issues. At times, they may serve as overviews, referring readers to more substantive sources published on the same topic. They are prepared by the Parliamentary Information and Research Service, which carries out research for and provides information and analysis to parliamentarians and Senate and House of Commons committees and parliamentary associations in an objective, impartial manner. [ Return to text ]
(2.88 mB, 321 pages), June 2015, p. 21. [ Return to text ] (1.74 mB, 214 pages), September 2017, Rule 15-4. [ Return to text ] (1.09 mB, 40 pages), No. 113, 1st Session, 39th Parliament, 22 June 2007, p. 1848. Letter from Senator Lavigne addressed to the Clerk of the Senate notifying him of criminal charges that had been laid against him. [ Return to text ]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.[ Return to text ]
(736 kB, 14 pages), 1st Session, 42nd Parliament, 2 May 2017, p. 8. [ Return to text ] (371 kB, 8 pages), No. 119, 1st Session, 42nd Parliament, 10 May 2017, p. 2061. [ Return to text ]
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