Changing house: the law affecting a move between elected offices.

AuthorWebb, Heather
PositionCanada Elections Act and Parliament of Canada Act

This paper identifies, by jurisdiction, statutory provisions that affect holders of elected office intending to stand as candidates for another legislative (or local) office. It is hoped this compact account of dual-office law will be of particular use to those interested in moving into or out of provincial politics.

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It is not surprising that legislators will pursue several goals in the course of their political lifetimes; politics is a vocation and the political life can be a strongly held taste. Many provincial legislators have become Members of Parliament (MPs) or vice versa, and some have moved from provincial party leadership--sometimes from the office of the premier--to federal party leadership. Municipal office holders of all stripes have entered provincial and federal politics, sometimes finding their way into cabinet, while members of the Ontario legislature have resigned to run for mayoral office.

The move from one political career to another is often governed by statute, although the rules vary depending on the jurisdictions and offices concerned. Legislators considering their options might care to know if they may keep their current seat if they are unsuccessful in their attempt to be elected to another legislature or council. In other words, may the cushion of their present seat be held to soften a possible fall, or must it be given up before the jump is made? (1)

In some cases, candidates must resign their current seats before the new vote takes place or even before declaring their candidacy; in others they must resign only before they take a seat elsewhere. Looking at Canada's federal government and each of its provinces and territories, this article identifies provisions that affect holders of elected office who seek candidacy for another legislative (or local) office.

The Law in Canada

From a Provincial Legislature to the House of Commons

Senators are not eligible to be elected to, or to sit or vote in, the House of Commons. (2) Likewise, the following two federal statutes render ineligible members of provincial legislatures from candidacy to the House of Commons:

* The Canada Elections Act states that members of provincial legislatures are not eligible, while members, to be candidates for election to the Commons and the election of a person declared ineligible is void. (3)

* The Parliament of Canada Act states that a person who is a member of a provincial legislature on the day of nomination for a Commons seat may not be nominated, voted, or eligible for Commons membership. If such a person is nevertheless elected, the election is void. (4)

From the House of Commons to a Provincial Legislature

In the first few years after Confederation it was possible for Members of Parliament to simultaneously sit in provincial legislatures. The first House of Commons had about 25 dually-elected members; indeed, a majority of the provincial cabinet ministers in Ontario and Quebec were also simultaneously federal members. (5) Today, however, a Member of Parliament who is elected to a provincial legislature and actually takes the provincial seat will void his or her election to the House of Commons. (6)

An exception to this rule may be made where the MP (i) was elected provincially without knowing of or consenting to the election, and (ii) resigns the provincial seat within 10 days of being notified of the election. (7) It would be impossible today to be elected without knowing about it, but when this provision was first enacted in 1873, an MP might not find out until after the fact that he had been successfully run in a provincial riding. (8)

A person declared ineligible to be an MP must forfeit $2,000 for each day he or she sits or votes in the House of Commons. (9)

The Law in the Provinces and Territories

Even if federal statute did not preclude a person from holding a provincial and a federal seat at the same time, many provincial and territorial election statutes would narrow or eliminate the opportunities for doing so. As for provincial and territorial members becoming MPs, although the Canada Elections Act makes the matter moot, some jurisdictions also address the issue in statutes.

The provincial and territorial statutes also address Senate membership and local office, and are dealt with in greater detail below.

British Columbia

If a member of the British Columbia Legislative Assembly sits or votes as a member of the House of Commons of Canada, the person ceases to be a member of the Legislative Assembly and, for as long as the person is a member of the House...

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