John Holtby was chief of staff to
the Special Committee on the Reform of the House of Commons and author of
several articles on parliamentary affairs.
The expulsion of Billy Joe MacLean
from the Nova Scotia Legislature on October 30, 1986, after his guilty plea to
four Counts of issuing false receipts for his expenses as a Member of the
Legislature was seen by many persons associated with political life in Canada
as an appropriate response to a violation of the "code" which
regulates life around parliaments. 'All members are honourable" is a
strict doctrine governing not only debate in the chamber, but all aspects of
parliamentary life. Mr. MacLean's admission that he had violated the code was
more significant to politicians than to the law courts. His sentence from the
Court was one day imprisonment, deemed to be served by his appearance in Court,
and a fine of $6,000. The response of his political peers was the passage of a
bill depriving Mr. Maclean of his right to sit in the House.
The Nova Scotia Assembly was reconvened
on October 30, 1986, in extraordinary session to deal with the matter. In one
day, without a dissenting vote, Mr MacLean was deprived of his seat in the
assembly. The Bill, introduced by the government, not only expelled Mr.
MacLean, but included a provision to prohibit any person from being a candidate
in an election for membership in the House of Assembly for five years if that
person had been convicted of an indictable offence punishable by imprisonment
for more than five years. The legislation was made retroactive to include Mr.
Nova Scotia legislators might have
hoped that by expelling him and barring him from running for re-election, they
had dealt a fatal blow to the political future of Billy Joe MacLean. And they might
have been correct five years ago. Before the Canadian Charter of Rights and
Freedoms was passed five years ago. But Mr. MacLean decided to look to the
Charter of Rights and the Courts to redress what he felt was an excessive
response to his malfeasance. The code of the club was in conflict with the
rights of an individual Canadian and the electorate.
On December 22, 1986, J. E. Sexton,
Douglas Caldwell, and J. E. Fichaud, counsel for Mr. MacLean, appeared in the
Trial Division of the Supreme Court of Nova Scotia, before the Honourable Chief
justice Constance R. Glube. The Attorney General, represented by Reinhold and
Alison Scott responded to the action.
Plaintiff MacLean challenged the
validity of the Membership Act. His counsel pointed out that the Act exceeded
in harshness any similar legislation in Canada. Several jurisdictions
disqualify persons from sitting in parliaments when sentenced to certain terms.
In Saskatchewan the Legislative Assembly Act permits the House to suspend a
member who has been convicted of an indictable offence and sentenced to
imprisonment for two or more years. In Manitoba, the law disqualifies from
membership a person who is sentenced to a term of five years or more. In New
Brunswick a person who is an inmate of a penal institution is ineligible to
vote or be a candidate. The Criminal Code of Canada Section 682 prohibits. a
person who is sentenced to prison for a term exceeding five years from sitting
in Parliament or in the legislatures while undergoing the punishment. All of
these laws speak of the sentence actually imposed by the Court. The Nova Scotia
bill disqualified Mr. Maclean on the basis of the maximum sentence which was
available to the Court, rather than the actual sentence handed down by the
"It is the intent of this
legislation to establish standards of eligibility for members of the House of
Assembly now and in the future ... The legislation also deals specifically with
the situation regarding the member for Inverness South who has been convicted
on four counts of using forged documents, all indictable offences all of which
carry a maximum punishment of more than five years imprisonment. The
legislation effectively expels the member for Inverness South. " (Hon.
George Moody, Chairman of the Management Board, Nova Scotia House of Assembly,
October 30, 1986.)
In his submission, Mr. Sexton
pointed out that the Membership Act would disqualify from membership anyone
convicted of stealing cattle, mischief in relation to property, or the
alteration, removal or concealment of a navigation marker or signal. All of
these offences carrying sentences of more than five years imprisonment.
However, it would not exclude someone convicted of influence peddling, breach
of trust, or selling public offices.
The famous British case of John
Wilkes was cited. The House of Commons expelled Wilkes in 1764, following his
conviction for seditious libel. He was re-elected. The House resolved that he
was incapable of being re-elected. The election was declared to be void, but
Wilkes was again re-elected, and once again the election was declared void and
a new writ issued. Erskine May's account continues: "A new expedient was
now tried; Mr. Luttrell, then a member, accepted the Chiltern Hundreds, (in
effect quit the House) and stood against Mr. Wilkes at the election, and being
defeated, petitioned the House against the return of his opponent. The House
resolved that, although a majority of the electors had voted for Mr. Wilkes,
Mr. Luttrell ought to have been returned, and they amended the return
accordingly. Against this proceeding the electors of Middlesex presented a
petition, without effect, as the House declared that Mr. Luttrell was duly
elected . . . . (But) on 3 May, 1782, the resolution of 17 February, 1769 was
ordered to be expunged from the Journals, as "subversive to the rights of
the whole of the electors of this Kingdom."
Mr. Sexton recalled a number of
instances when persons who had been convicted of offences had run for
re-election, some successfully. "It is submitted that whatever the
justification for expulsion, there is no justification for disqualifying Mr.
MacLean from running in a by-election. The expulsion may trigger the
'democratic" process. The democratic process should then have its way. The
people of Inverness South should decide who is to be their
The Nova Scotia Attorney General's
counsel argued that the House had every right to expel one of its members.
Further, they had the right to set qualifications for membership. The central
argument for both sides was the application of the Charter of Rights and
The Court released its decision on
January 5, 1987. After dealing with a number of preliminary issues, Chief
justice Glube rejected the Crown's contention that the matter before the Court was
part of an amendment to the Constitution and beyond the review of the Court. 1
conclude that since the Charter, any provincial law purporting to deal with the
eligibility of persons to be elected to individual provincial legislative
assemblies must comply with s. 3 of the Charter and the Court has the power to
review the legislation and, if necessary, to test the legislation under s. 1.
1f it were otherwise, a province
could, for example, amend its constitution by passing a law that only
blue-eyed, brown-haired persons could qualify for membership in the legislative
assembly, and there would be no way to challenge the law. Amendments to
provincial constitutions must be capable of being tested and the challenge must
take place in the courts."
Chief justice Glube then dealt with
the right of the Assembly to expel one of its members, and the procedure used
by the House. The court cited the traditional parliamentary texts, Bourinot,
Beauchesne, and May, each authority supporting the other, that in the words of
Beauchesne, "There is no question that the House has the right to expel a
Member for such reasons as it deems fit." "The purpose of
expulsion," say the 20th edition of Erskine May, 1s not so much
disciplinary as remedial, not so much to punish Members as to rid the House of
persons who are unfit for membership. . . ."
Mr. MacLean's counsel had argued
that while there had been a historic right to expel, this had now been
qualified by the Charter. He had been expelled by the use of a bill enacted
into law by the House. (In a unicameral system this causes few problems, but in
bicameral parliaments, there could be difficulty if one chamber did not proceed
in harmony with the other House). Is expulsion by resolution still valid?
1n my opinion, the power to expel a
person by resolution of the Assembly remains a valid function of the Assembly,
and if by resolution, would not normally be reviewable by the Court." The
Chief justice concluded that the section of the Membership Act which expelled
Mr. MacLean could stand on its own and was severable from the part of the act
which dealt with the prohibition against being a candidate in a subsequent
election. There would be no interference with the expulsion, whether it was
achieved 13v resolution or by statute.
The next question was the issue of
illegibility as a candidate in a subsequent election for a period of five
years. The Membership Act contains a preamble which the Court felt was an
admission by the framers of the Act that its purpose was unconstitutional. "The
Act uses the words of S. 1 of the Charter which only needs to occur if there
has been a violation of the Charter rights.
"The defendant (the Attorney
General) suggests the legislation is both protective and disciplinary. If it is
disciplinary, expulsion would accomplish that and anything more would be
excessive and not demonstrably justified in a free and democratic society.
Expulsion will protect the integrity of the House. The offences in which Mr.
MacLean was involved were offences directly related to his role as a member of
the House. He was defrauding the House of Assembly by claiming and obtaining
funds for alleged expenses as a member by using forged documents. For that, the
House chose to expel him. The argument that the House must declare in advance that
a person who is a member should not forge documents or he will be expelled is
not necessary. The law is found in the Criminal Code, namely, that a person
shall not forge documents. Until Mr. MacLean pleaded guilty, he was charged,
but innocent until proven guilty. In my opinion, expulsion before conviction or
before his guilty plea would have been wrong and no doubt could have been
challenged. What the House did in expelling him, met their stated purpose of
protecting the integrity of the House and was demonstrably justified in a free
and democratic society."
"As to the conditions for
nomination and election contained in s. 1 of the Act, these have been made
retroactive. At the time Mr. MacLean pleaded guilty there were no statutory
standards in place. Standards must be prescribed by law and clearly set out so
that they can be known to all. Mr. MacLean could not know of the limitations
found in s. 1 of the Act on October 3rd, 1986. (When he pleaded guilty to the
. . ."the reason for the
legislation was protective . It is said that the legislature should be able to
set its own standards and determine what people it does not want to have in the
House. The content of s. 1 of the Act affects Mr. MacLean and others run and be
elected. It also impinges on the rights of voters to elect a member of their
choice by a majority vote. Surely the citizens of this province should be given
credit for having the sense to determine who is a proper member. The voters now
know the facts about Mr. MacLean and should he choose to run, it should be the
voters who decide whether he is the person they want to represent them in the
House. The legislation is paternalistic and excessive and under the
proportionality test is unnecessary to protect society.
"The prohibition has turned
from protection to punitive. The defendant (the Attorney General) even suggests
the Act has merely set minimum acceptable standards and conduct essential to
lend finality to the expulsion. However, the criteria proposed would eliminate
people who are not involved in breaching the trust of the House."
The Court found that the
prohibition from being a candidate 1s penal and not demonstrably justified in a
free and democratic society."
This is not to suggest that the
legislature cannot pass valid legislation qualifying membership in the
legislature. I believe it can. It is not appropriate for the Court to
speculate, nor suggest particular legislation but the Court can say that: the
legislation must not be retroactive; the legislation must be reasonable for the
stated purpose; that for the stated purpose it may only be necessary to include
a few specific offences.
"Naturally, any legislation
would have to be analysed, after it was drafted, in light of s. 1 of the
Charter." The Court thus made a nullity of the unanimous decision of the
Nova Scotia Legislature intended to bar Mr. MacLean from running in the next
election. The haste of the members to rid themselves of one who had broken the
code resulted in a violation of the rights of not only Billy Joe MacLean, but
the electorate and other persons who might wish to be candidates.
"I understand there is a
doctrine of parliamentary sovereignty, that the Parliament may pass whatever
laws it likes, within the sphere of its legislative authority. But it is also clear
that this problem has been limited by our new Constitution Act of 1982, the
supreme law of Canada and there are certain things no legislature can, do.
There is no longer a tyranny of a Legislature where a government, by its
control of the legislative majority, can pass any laws it chooses, even those
designed solely to rid itself of a politically undesirable colleague."
(Billy Joe MacLean, Nova Scotia House of Assembly, October 30, 1986.)
The Court has also recognised the
right of the Legislature to expel members by resolution which is not subject to
question under the provision of the Charter. Likewise, should an assembly use
legislation to expel a member, the Court has refused to interfere with that
action, continuing to respect the jurisdiction of the assembly in its internal
workings, regardless of the Charter.
For politicians who saw the Charter
as an intrusion by the Courts into parliamentary life, the case of Billy Joe
MacLean has shown that the Courts continue to respect the rights and privileges
of the House. For Canadian Citizen William Joseph MacLean, the Charter of
Rights and Freedoms gave him the ability to be a candidate in the next election
and to receive the verdict of the electors.
Postscript: On February 24, 1987,
the electors of Inverness South returned Billy Joe MacLean to the Nova Scotia
House of Assembly. Mr. MacLean won over his Liberal opponent by 165 votes, with
the Progressive Conservative candidate coming third.