At the time this article was
written Edward McWhinney was a Professor of Constitutional Law at Simon Fraser
university in British Columbia. His article is a revised version of a
constitutional opinion furnished to the Speaker of the British Columbia
Legislative Assembly in December 1987.
In 1987 a Member of the British
Columbia Legislative Assembly was convicted for counselling a local printing
firm to alter an invoice so that another firm could write off the costs of an
election brochure. The relevant sections of the Canadian Criminal Code were
sections 324 and 325 (forgery, making a false document knowing it to be false),
and section 422 (counselling other persons to commit offences). The Member was
fined $1,500.00 and placed upon probation for ninety days. The conviction was
upheld, on appeal, by the Court of Appeal of the Province, in 1988. The case
raised the question of the meaning that ought to be given, in a contemporary
context, to precisely drafted language, of respectably ancient constitutional
lineage, contained in constitutional charters or similar basic laws that have
failed to be up-dated so as to accord with contemporary conditions and demands.
The Constitution Act of British
Columbia contains the following express provision as to forfeiture of the seat
of a member of the Legislature:
54. "If a member of the
Legislative Assembly ... becomes a bankrupt, an insolvent debtor or a public
defaulter or is convicted of treason, or felony or any infamous crime. ...his
election becomes void and the seat of the member shall be vacated. A writ shall
issue, within 6 months after the time when the seat of the member became
vacated, for a new election."
Section 54 represents a
codification of the constitutional law of Great Britain, as it existed in the late
Victorian era at the time of the original enactment of the Constitution Act of
British Columbia. As such, section 54 is a blend of old English Common Law
constitutional law dating back to mediaeval times, and some latter day English
statutory innovations like the several additions effected under the Bankruptcy
Acts of 1812 and 1869.
The task in interpreting section 54
of te Constitution Act of British Columbia today is to give a contemporary
meaning and application to words used, originally, more than a century ago.
Since constitutional texts do not operate in a social vacuum, they cannot be
interpreted in the abstract. Their legal operation today must turn upon an
examination of their original social context and the community policies to
which they responded over the long course of historical evolution from
mediaeval to Victorian England.
Their legal operation must also be
conditioned by the degree and quality of "reception" in British
Columbia in the late l9th century not merely of the words and phrases used by
English law makers and judges in earlier times, but also of the changing
community policies to which those English jurists had responded in developing
their distinctive English jurisprudence. For the process of historical
"reception" from one constitutional-legal culture to another cannot
be a purely mechanical one, producing an automatic carry-over of the whole
corpus of rules and principles and processes, but must involve, instead, a
conscious form of testing and selection, with only those elements of the
"foreign" law accepted that are manifestly relevant and applicable in
the new society in the light of its own distinctive conditions and needs.
The process of legal
interpretation, and especially constitutional-legal interpretation, involves no
necessary and inevitable surrender to the dead-hand control of past history. As
Oliver Wendell Holmes remarked, it is revolting to have no better reason for a
rule of law than that it was laid down in the time of Henry IV. Lord Sankey
expressed Holmes' truth in a specifically Canadian context when, on behalf of
the Privy Council, he spoke of the Canadian constitution as a "living tree
capable of growth and expansion within its natural limits".(1)
Thus, in rendering full value to
the words as originally used in section 54, with their own original (English)
historical connotations, we mst seek to give them a fully contemporary
application that will respond in measure to the contemporary political and
social reality in Canada and in British Columbia in particular.
The Meaning of Felony
One of our first discoveries, in
approaching the interpretation of the phrase, in section 54 -- "convicted
of treason, or felony or any infamous crime", is that the concept of
"felony" is legally anachronistic in terms of Canadian law, having
lapsed into desuetude and been suppressed altogether in the modern definitions
and generic classifications of crime under the contemporary Canadian Criminal
Code. Even within that English law from which the concept of "felony"
was originally "received" or derived for purposes of the Constitution
of British Columbia, its meaning had become blurred and the underlying social
policies confused or lost, well before the late Victorian era, -- the actual
time of "reception" in British Columbia.
The English Common Law connotation
of "felony" does not, it is clear, stem from any consistent logical
development, but from history, including historical accidents, of development
of particular categories of crimes and even particular crimes themselves. The course
of English legal history bases a definition of "felonies" either in
terms of consequences -- the general atteint, and forfeiture of land or goods
or both, attaching to convicted felons; or in terms of incidents and procedures
-- the facts that a suspected felon could be arrested by a private person
without judicial authority, and that, in an actual trial for felony, the
accused could exercise a right of peremptory challenge of jurors (up to twenty
in number) and could not be tried in absentia, and that, in the case of peers
of the realm, there was the special rule as to trial by the King-in-Parliament.
Medley notes that in early mediaeval times, felony was any crime that could be
prosecuted by appeal to battle ("wger of battle").(2)
If the meaning of "felony"
is to be sought either in the definition-in-terms-of-consequences or in the
definition-in-terms-of-incidents-and-procedures, then these English historical
prescriptions are manifestly inapplicable and unsuitable to societal conditions
in Canada, and therefore incapable of legal "reception", either in
late l9th century or contemporary terms.
The meaning of "felony",
for present Canadian purposes, must therefore be sought elsewhere -- in its
intrinsic elements, rather than through pursuit of extrinsic,
historically-based considerations. The classical English texts on criminal law
-- Kenny, for example, in his successive editions(3) -- classified crimes
according to their technical degree of importance as either Indictable Offences
(admitting of trial by jury) and Petty Offences (those which could only be
tried summarily, by justices of the peace sitting without a jury); and broke
down indictable Offences into the three categories -- Treasons, Other Felonies,
and Misdemeanours. Among the various "Other Felonies" that developed
historically -- leaving aside, for present purposes, the consequences of
adjudgment in felony that we have already discussed of forfeiture of property
-- a dominant element seems to have been their deemed gravity or heinousness in
their particular societal context, distinguishing them thereby from mere
Misdemeanours. Thus, the earliest use of the term felony appears to have been
to denote breaches of what might be called the feudal bond, obligating the
vassal in service to his lord.(4) This was followed, in the course of the
twelfth and thirteenth centuries, in the historical development of the English
Common Law, by the addition of homicide, rape, arson, larceny, robbery,
burglary and kindred offences.
According to Medley, by the end of
the thirteenth century there were some seven or eight definite crimes that came
under the head of "felony".(5) Very much later, through statutory
intrusion on the Common Law, counterfeiting the coin of the realm (which had
originally been treason) had been legislated into a felony; while forgery of
most documents (a misdemeanour at Common Law) also had been made a felony
through statute law. Maitland concluded that the original common denominator of
the Common Law felonies, at the time when the Common Law was first taking shape
in the thirteenth century, was that they were all considered as
"peculiarly grave"; and that they were, broadly speaking, capital
crimes (save petty larceny or stealing to less value than 12 pence).(6)
If there was this common core, so
to speak, in the earliest historical period of the Common Law, the legal purity
or integrity of the felony concept soon became corrupted by highly pragmatic
considerations. The obvious financial benefits occurring to the feudal
authorities from the resultant widespread forfeiture of properties of those
adjudged guilty in felony, led to an abusive expansion of the categories of
felonies;(7) and, paradoxically, the excessive severity and cruelty of the
punishments led, by a form of "pious perjury", to the progressive
extension of the "benefit of clergy" (and consequent exemption from
legal penalties) to ever-widening classes of people.(8) A great deal of the
creative energies of the Tudor monarchs had thereby to be devoted to special
statutes cutting down on the "benefit of clergy" by, in effect,
limiting it to ordained clerks and removing it altogether in respect to certain
categories of offences, -- as, for example, piratical offences, highway
robbery, horse-stealing, stealing from churches, and, in 1576, rape.
The effect of these changes was to
introduce a further legal refinement to the classification of felonies,
dividing them between "clergyable" and "unclergyable".(9)
The various statutory innovations, over the centuries, however, did much to attenuate,
or destroy, the key element of "heinousness" inthe identification of
the nature and character of a felony, rendering increasingly arbitrary and
illogical the demarcation of felonies from misdemeanours. As late as 1786,
killing of a horse in an unlicensed place was made a felony, rather than a
misdemeanour. The gravity of a criminal offence, for purposes of Canadian law,
can gain little today by reference to the vagaries and varieties of English
statute-law classifications of felonies/misdemeanours.
Parliamentary Consequences of
Felony Convictions in England
The convicted felon, under English
Common Law constitutional law, lost any office or pension. He could not vote
for, or sit in Parliament or hold military or civil or ecclesiastical office,
until after he had been pardoned or had worked out his sentence. These
disqualifications did not apply to persons convicted of misdemeanours.
Parliament could, however, always opt to expel, on its own grounds of unfitness
and by its own vote, any member who might happen to be convicted of a
There are historical examples of
the objection of felony being raised as a ground of disqualification for
election to Parliament, going back to the reign of James I. The case of
Goodwin, an outlaw who, in defiance of the King's special writ forbidding the
election of bankrupts and outlaws as knights of the shire, had been returned
for Buckinghamshire in 1604 is interesting in that the House of Commons pleaded
that, even if he were an outlaw, a fact which they disputed, there were
precedents for persons of that category as Members of the House.(10) The
latter-day English constitutional cases, however, tended to concern the
eligibility of previously convicted felons who had already served their
sentences, to sit in the House of Commons. Medley thought that the House of
Commons, in such cases, might always try to exercise its power to expel for
unfitness, as it could certainly do in the lesser case of conviction for
misdemeanour.(11) The matter was, however, resolved beyond possibiliy of legal
doubt in 1870, and in a way beneficial to previously convicted felons, by
statute law declaring such persons who had already served their term or
received a pardon to be legally eligible for seats in the House of Commons.(12)
The change in community policies
evident in this amelioration of the positive law as to disqualification from
Parliamentary honours of convicted felons seems not merely a consequence of the
increasing acceptance of the artificiality and arbitrariness of the old
felony/misdemeanours dichotomy, with the absolute bar in the one case and the
purely discretionary, facultative approach (leaving any action to the
initiative of Parliament itself) in the other case. Rather, the effects of the
democratisation of the English constitutional system in the course of the l9th
century, and the marked, further opening up of the adult male franchise with
the passage of the Second Reform Bill of 1867 on Parliamentary representation,
should not be discounted.
Combined with the long-range
effects of the Septennial Act of 1716 (13) which brought to an end the system
of near-perpetual "long" Parliaments that had characterised the
Yorkist and then Stuart reigns by enforcing periodicity of elections to the
Commons,(14) this meant a substantially representative and
democratically-elected legislature that would present itself to its
constituents at regular intervals for further constitutional legitimation or
renewal. Why not leave to an ultimately sovereign electorate, in this way, the application
of any moral or political sanctions that might be deemed appropriately to
attach to any past or present acts of felony? The 1870 statute, in positively
removing the constitutional stigma and also the practical constitutional-legal
impediment in the case of past conviction for felony that had already been
purged or pardoned, confirmed that it had become, by the late l9th century, a
formal and not a substantial bar surviving from a mediaeval past. These policy
considerations seem reinforced, i modern times, by the passage from the
Septennial Act stipulation for general elections of Parliament at a maximum of
seven-year intervals, to the present maximum, in Great Britain, of five-year
The following general constitutional
conclusions may be made as to the contemporary meaning and interpretation of
section 54 of the Constitution Act (B.C.):
Section 54 of the Constitution Act,
in speaking of conviction of "felony", employs language that is, by
now, legally anachronistic in relation to Canada and British Columbia, and, in
any case, that has historical incidents and consequences that are inapplicable
and inappropriate under distinctive local conditions.
Legal meaning can only be given to
the language of section 54, in a contemporary Canadian and British Columbia
context, by discarding the casual, accidental elements of "felony"
arising, in time past, in response to special historical conditions in English
society, and concentrating, instead, on the key, continuing element -- the
insistence, (in spite of some idiosyncratic, seemingly even absurd examples
emerging at particular time periods), on a common core of heinousness of the
The insistence that conviction for
felony can only be interpreted meaningfully, in contemporary terms, as
conviction for a heinous offence, is confirmed by reading the purported
"criminal" bar in its entirety -- conviction of "treason, or
felony or any infamous crime". The ordinary rules of statutory construction,
and application of the ejusdem generis rule, would interpret "felony"
in its statutory context as deriving its connotation from, and being influenced
and limited by, "treason" and "any infamous crime", and
therefore denoting only criminal offences of extreme gravity.
1. The timing of initiation of any
action. On the assumption that the substantve test of conviction of
"treason, or felony or any infamous crime" is met, when can the
remedial action envisaged under s. 54 be legally initiated? In the Wilson
affair, in the Legislative Assembly of Manitoba in December, 1980,(15) the
Legislative Assembly voted to expel the Member concerned after his conviction
and sentencing to seven years imprisonment on charges of conspiracy to import
and traffic in marijuana, although at the time of the Legislative Assembly's
action an appeal against the criminal conviction had already been filed and the
Member concerned was released on bail. Such legislative action -- literally,
"jumping the gun" on the final determination by the courts of law of
the guilt or innocence of the Member concerned for the crime with which he was
originally charged and which formed the basis of the Legislature's own action
-- would seem capable, only with extreme difficulty, of being reconciled with
the Canadian Charter of Rights and Freedoms' general constitutional guarantees
of due process of law (Legal Rights, sections 7-14). The conclusions by Chief
Justice Glube of the Supreme Court of Nova Scotia (Trial Division),(16) that
the Charter of Rights and Freedoms does indeed apply to establish judicially
enforceable constitutional limits to a Provincial Legislature's dispositions as
to eligibility of its Members, seem constitutionally persuasive in this regard.
Nor does the statutory arrière-pensée by the Manitoba Legislature, in
retroactively amending its own Legislative Assembly Act, after it had purported
to dispose of the Wilson affair by expulsion of the Member, so as to provide,
in effect, for reinstatement of a Member and for a (discretionary)
reimbursement of Parliamentary salaries if the Member's appeal against criminal
conviction should eventually be upheld by the courts,(17) appear to accord any
better with contemporary constitutional standards of due process to which
legislative prescriptions such as s. 54 of the Constitution Act (.C.) must
Any remedial action of the
Legislative Assembly of B.C., in terms of s. 54, in regard to the conviction by
a Member for "treason, or felony or any infamous crime", could
therefore, it is submitted, only be constitutionally initiated after the final
exhaustion of all appeals or the expiry of the time in which such appeals may
be brought; and the Member concerned would remain constitutionally entitled to
all his Parliamentary rights and privileges, including salary and allowances,
pending final termination of the appeals processes.
2. The effect to be given to an
unconditional discharge, if granted, on appeal from sentence, if the original
criminal conviction should itself be upheld. As we have noted above, the
English constitutional-legal bar to eligibility for seats in Parliament,
arising from conviction for felony, was not an absolute one, but lasted only so
long as the term applied by the courts had not been served or the person
concerned had not received a pardon. The criminal penalty once purged, the
constitutional rights and privileges of the person concerned revived. While
there is no apparent legislative precedent, one way or another, going to the
legal effect of an unconditional discharge on conviction for "treason, or
felony or any infamous crime", it seems difficult not to accord to it the
quality of effectively purging the offence.
3. The rôle, if any, of the
Legislative Assembly. The Legislative Assembly of B.C., as a lineal descendant
of the English Parliament, inherits its not inconsiderable inherent judicial
powers and functions stemming from the mediaeval "High Court of
Parliament". Mr. Justice Dryer of the Supreme Court of British Columbia,
in a 1978 judgment, referred to the "old dualism [that] remains
unresolved" as to the respective rôles of the Legislature and the Courts
in interpreting the constitutional-legal ambit of Parliamentary privileges.(18)
In Reference re Amendment of the Constitution of Canada, in late 1981,(19) the
Supreme Court of Canada majority referred, in passing, to the "`court'
aspect of Parliament and the immunity of its processes from judicial
review." Chief Justice Glube of the Supreme Court of Nova Scotia, in the
opinion, in 1987, in the Maclean case, cited this dictum with approval in going
on to rule, nevertheless, that the constitutional Charter of Rights and
Freedoms, adopted in 1982, operates legally to limit Provincial Legislatures,
-- by virtue of Charter s. 3, -- in their purported dealings with the
eligibility of their Members. This would appear to provide an excellent
contemporary Canadian constitutional rationale of the relation between the
Legislature and other, coordinate constitutional institutions like the Courts
in the interpretation and application of the rights and privileges of Members.
On this view, the Courts should sensibly defer to the Legislative judgment in
such matters, though the Democratic Rights (sections 3-5) established in the
Charter remain in reserve, for judicial application if need be, in case of
allegedly politically abusive action by the Legislature.
The provisions of s. 54 of the
Constitution Act (B.C.) are not self-executing, and can only be activated by Resolution
of the Legislative Assembly.
It is for the Legislative Assembly
to determine the meaning of conviction of "treason, or felony or any
infamous crime" in s. 54.
In a contemporary Canadian and B.C.
context "treason, or felony or any infamous crime" is limited, in its
connotation, to crimes of a particularly heinous character.
Unless the Legislative Assembly
should resolve that this substantive test of heinousness has been met, then no
action under s. 54 would arise.
Any action, or non-action, by the
Legislative Assembly in regard to s. 54 should not be judicially reviewable
except as to the one point as to any incidents, by way of further penalty or
disability (present or future), sought to be attached by the Legilative
Assembly beyond the voiding of election and vacating of seat envisaged, in
terms, under s. 54. In particular, no condition could, compatibly with the
Canadian Charter of Rights and Freedoms, legally be attached to any Resolution
that would bar the Member concerned from presenting himself as a candidate for
re-election in the resultant by-election or at any future general election.
1. Edwards, v. Attorney General for
Canada,  A.C. 124 (P.C.).
2. Medley, English Constitutional
History, (4th ed., 1907), p. 355.
3. Kenny, Outlines of Criminal Law
[1902; l5th rev. ed., (by G. Godfrey Phillips, 1942], p. 104.
4. Kenny, op. cit., p. 106.
5. Medley, op. cit.
6. Maitland, The Constitutional
History of England (1909), p. 229.
7. Medley, op. cit.
8. Maitland, op. cit.
9. Hallam, Constitutional History
of England (1876), vol. 3; Stephen, History of Criminal Law, vol. 2.
10. Prothero, Statutes and
Constitutional Documents. 1559 - 1625, pp. 325-331.
11. Medley, op. cit., p. 193.
12. 33 & 34 Vict. c.23, s.2.
13. Dicey, Law of the Constitution
[1885; 9th ed. (by E.C.S. Wade), 1939], p. 44; Maitland, op. cit., p. 292.
14. Medley, op. cit., p. 263.
15. Discussed in Mackintosh,
"The Right of Legislatures to expel Members: a Manitoba case study",
Canadian Parliamentary Review, vol. 4, no. 4, (1981-82), p. 18.
16. Maclean v. Attorney General of
Nova Scotia, (Supreme Court of Nova Scotia, Trial Division), decision of 5
17. Legislative Assembly Act
(Manitoba), s. 19(1) (as amended); discussed in Mackintosh, Canadian
Parliamentary Review, vol. 4, no. 4, at p. 24.
18. Wallace v. Attorney General of
British Columbia,  1 W.W.R. 411, 413.
19. 25 D.L.R. (3d) 1 (1982).