John Earnshaw; Maurice Vellacott, M.P.
This is a revised version of a presentation to the 26th Canadian Regional
Seminar of the Commonwealth Parliamentary Association held in Iqaluit on
October 16-19, 2003.
Normally the Speaker of the House of Commons does not vote;
however, in the event of a tie the Speaker votes to break the tie. Although it
is rare, such an event occurred in September 2003 when Speaker Peter Milliken
cast the deciding vote on an amendment to a Canadian Alliance motion relating
to the definition of marriage. This article looks at the legal basis and conventions
that have developed surrounding the use of the casting vote.
basis of the casting vote is found in section 49 of the Constitution Act
(BNA Act), 1867. It states: “Questions arising in the House of
Commons shall be decided by a Majority of Voices other than that of the
Speaker, and when the Voices are equal, but not otherwise, the Speaker shall
have a Vote.” The words “but not otherwise” mean that in no other
circumstance is the Speaker permitted to vote.
Standing Order 9 of the House of Commons provides that “The
Speaker shall not take part in any debate before the House. In case of an
equality of voices, the Speaker gives a casting vote, and any reasons stated
are entered in the Journals.”
For the House to function properly members must have confidence
in the Speaker’s impartiality, so it is important that he or she not take sides
in partisan debate. When there is an evenly split vote, and the Speaker casts
the deciding vote, this could involve the presiding officer in taking a
partisan stance. Thus the casting vote creates the danger of making the Speaker
appear partisan. Certain conventions have developed to shield the Speaker from
the appearance of partisanship (even though in theory the Speaker has the same
freedom as other members to vote according to conscience).
Conventions to Avoid Partisanship by the Chair
Even before Confederation, there are examples of a Speaker
casting the deciding vote and giving reason for his vote: “…in case of an
equal division, the practice was, that the Speaker should keep the question as
long as possible before the House in order to afford a further opportunity to
the House of expressing an opinion upon it.”1
This meant that the Speaker was to vote, if possible, in a way
that would put the issue under debate back and in the hands of the other
members rather than deciding an issue with his vote. Thus it was a form
of deferring to the other members rather than “casting the deciding vote” as we
usually understand that phrase. This convention has been summarized by
saying that the Speaker should vote to maintain the status quo.
Marleau and Montpetit have described what this entails as
- whenever possible, leaving the matter open for future
consideration and allowing for further discussion by the House;
- whenever no further discussion is possible, taking into account
that the matter could somehow be brought back in the future and be decided by a
majority of the House;
- leaving a bill in its existing form rather than having it
Another parliamentary authority has put it this way. John George
Bourinot explains the convention by stating that if voting one way would settle
the issue once and for all, and voting the other way would not settle the issue
but leave it unsettled and still before the House then the Speaker should avoid
settling the matter with his vote. In some cases the casting vote would decide
with finality the matter under debate, such as determining whether or not a
bill should progress. In that case the Speaker may refuse to cast the deciding
vote, which would stop the bill from progressing.3
It would be the equivalent of voting nay. The House could always
bring a new measure for consideration in the future. The point is that the
passage of any such bill would be the responsibility of the House, not the
Because the conventions relating to the casting ballot have not
been codified, Speakers have been left on their own to interpret the
conventions of the casting vote. This has led to questions of inconsistency.
For example one Speaker voted for a three-month hoist amendment
to the motion for 3rd reading of a bill “to keep the Bill before the House.”
Yet another Speaker voted against a hoist amendment for the same reason
(to give the House a further opportunity for consideration).4
In two instances Speakers voted against amendments to clauses of
a bill “in order to leave the matter open”. Yet another Speaker voted for an
amendment (without giving a reason). One Speaker voted against a motion
for second reading of a bill (without giving a reason). Another Speaker voted
against a dilatory motion to rise, report progress and ask leave to sit again.
Recent Example of the Casting Vote
On September 16, 2003 the Canadian Alliance used an
Opposition Supply Day to bring in a motion relating to the Definition of
Marriage. The motion stated:
That, in the opinion of this House, it is necessary, in light of
public debate around recent court decisions, to reaffirm that marriage is and
should remain the union of one man and one woman to the exclusion of all others
and that Parliament take all necessary steps within the jurisdiction of the
Parliament of Canada to preserve this definition of marriage in Canada.
During the debate it became clear that the entire cabinet was prepared
to oppose the motion, however, several private members on the government side
might be prepared to support it if the last part of the motion was deleted
since some viewed those words as directing Parliament to use the
Notwithstanding Clause to maintain the traditional definition of marriage.
Since some members did not want to open that door a Canadian Alliance
member, Vic Toews, introduced an amendment to delete the words and
that Parliament take all necessary steps within the jurisdiction of the
Parliament of Canada to preserve this definition of marriage in Canada in
order to make the motion more palatable to these MPs.
The vote on this amendment was evenly split (134-134). The
Speaker voted against the amendment (i.e. to retain the original, longer
version of the motion) saying:
The Clerk has announced that there is an equality of votes for
and against the motion. In these circumstances the duty of the casting vote, as
it is called, now falls on me as your Speaker.
I should make it clear that I am casting my vote tonight on
purely procedural grounds. The precedence and practice of the House of Commons
are designed to ensure that if the House cannot make a definitive decision on a
question, the possibility should be left open for the question to come again
before the House if members so choose.
Therefore, since the House has been unable to take a decision
tonight, I will vote so that members may be given another opportunity to
pronounce themselves on the issue at some future time and accordingly, I cast
my vote in the negative. I declare the amendment defeated.5
The question was then put on the main motion, which was defeated
132-137. The Speaker’s casting vote ruling seems to conform to the convention
of “leaving a bill [in this case a motion] in its existing form rather than
having it amended.”
1. See Journals of the Legislative Assembly of
the United Province of Canada, August 19, 1863, p. 33. Also John George
Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada
4th edition edited
by Thomas Barnard Flint, Canada Law Book Company, Toronto, 1916, p. 384.
Robert Marleau and Camille Montpetit, House of Commons Procedure and
Practice, Chenelière/McGraw, Montreal, 2000, pp. 268-269.
3. See Bourinot, op cit.
4. In 1870 Speaker James Cockburn did not follow convention properly. He
seems to have voted according to his own opinion. Mr. Bellerose moved 3rd reading of a bill that
was controversial because it set an interest rate of 8%. The members could not
agree on what the rate should be or that it should even be set. Mr.
Oliver, an opponent, moved the three months hoist, which would have killed the
bill for that session. The votes were equal on the hoist. The Speaker said that
since he wanted to keep the bill before the House he should therefore vote yea.
Mr. Ross asked, “Is the Bill then still before the House.” The Speaker
replied, “It will be before the House next session.” There was great laughter
and cheers. He essentially killed the bill for the current session. See
House of Commons Debates, May 6, 1870, col 1401-2.
On February 28, 1889 Speaker Speaker J-A
Ouimet followed convention properly and voted in a way that deferred to the
House. Mr. Brown moved that the House consider Bill no. 3 (concerned with
cruelty to animals) in the Committee of the Whole. He wanted to explain his
bill to members in the context of this Committee to satisfy the concerns of
some members. If they were not satisfied, he would be willing to modify the
bill. Mr. Tisdale, an opponent, wanted to dispose of the bill and moved in
amendment that the words after “That” be struck and the following substituted:
“Bill no. 3 be considered this day six months.” He complained that the original
motion, if defeated, could be brought back to the House. To avoid that he
wanted to dispose of the bill. There was a tie vote The Speaker said, “There
being a tie, I shall vote nay, so as to leave the question before the House.”
Now that Mr. Tisdale’s amendment was defeated, they returned to the original
motion of Mr. Brown. It passed. See House of Commons, Debates,
February 28, 1889, 368.
5. House of Commons, Debates, September