Chapter 21Private Members’ Business

Votable and Non-votable Items

Mandate of the Subcommittee on Private Members’ Business of the Standing Committee on Procedure and House Affairs

No item of Private Members’ Business may be taken up by the House until a determination is made as to whether or not it should remain votable.¹²⁶

As soon as practicable after the order of precedence has been established or replenished, the Subcommittee on Private Members’ Business of the Standing Committee on Procedure and House Affairs must meet to determine whether or not any of the items placed in the order of precedence are non-votable according to the criteria adopted by the Standing Committee.¹²⁷ When a private Member’s public bill originating in the Senate has been read a first time, the Subcommittee must also meet to determine if the bill should be designated non-votable pursuant to the Standing Orders.¹²⁸ The fact that a bill or a motion has been accepted as votable should not be construed as a guarantee that the House will adopt the bill or motion.

The following items are automatically placed in the order of precedence and remain votable:

private bills;¹²⁹
notices of motions (papers);¹³⁰
bills reported from committee (or deemed to have been reported from committee);¹³¹
bills at the third reading stage;¹³² and
Senate amendments to bills.¹³³

Members may wish only to have their item debated without it coming to a vote. No later than the ordinary adjournment hour on the second sitting day after the item has been added to the order of precedence, Members may inform the Clerk of the House in writing that they wish to have their item designated as non-votable. Items may also be designated as non-votable by the Subcommittee on Private Members’ Business, though such a decision is subject to review and appeal processes.¹³⁴

If the Subcommittee sees no reason to designate an item as non-votable, it files a report to that effect with the clerk of the Standing Committee on Procedure and House Affairs. Such a report is deemed to have been concurred in by the Committee and is presented to the House by a member of the Committee, usually the Chair, at the next earliest opportunity.¹³⁵ The report is deemed concurred in by the House upon its presentation.¹³⁶ Debate may then proceed on the item when it reaches the top of the order of precedence. Exchanges may also be made to allow the item to reach the top of the order of precedence more quickly. If the Subcommittee feels that an item should be designated as non-votable, it reports that decision to the Standing Committee and, if concurred in by the Standing Committee, the sponsor of the item may avail himself or herself of the appeal process or substitute another item as defined in the Standing Orders.¹³⁷ The item may not be considered by the House until the appeal process is complete, unless the sponsor of the item waives his or her right to appeal.¹³⁸

If an item reaches the top of the order of precedence before its votable status has been confirmed or before the appeal process has concluded, then the item is automatically dropped to the bottom of the order of precedence.¹³⁹

Criteria for Determining Non-votability

Since 1986, the Committee has based its determination of votable and now non-votable items on specific criteria, the list of which has been modified occasionally throughout the years.¹⁴⁰ The most recent list of criteria to determine non-votability of bills and motions originating in the House of Commons is as follows:¹⁴¹

bills and motions must not concern questions that are outside federal jurisdiction;
bills and motions must not clearly violate the Constitution Acts, 1867 to 1982, including the Canadian Charter of Rights and Freedoms;
bills and motions must not concern questions that are substantially the same as ones already voted on by the House of Commons in the current session of Parliament, or as ones preceding them in the order of precedence; and
bills and motions must not concern questions that are currently on the Order Paper or Notice Paper as items of government business.

It should be noted that, when applying these criteria, the Subcommittee on Private Members’ Business only assesses bills against other bills, and motions against other motions.

In the case of a private Member’s public bill originating in the Senate, the only ground on which such a bill can be designated non-votable is its similarity to a bill voted on by the House in the same Parliament.¹⁴²

Once it has determined that an item should be designated non-votable, the Subcommittee on Private Members’ Business presents its report to the clerk of the Standing Committee on Procedure and House Affairs.¹⁴³

Review by the Standing Committee on Procedure and House Affairs

A Member who disagrees with the decision of the Subcommittee on Private Members’ Business designating the Member’s item non-votable may, within five sitting days of the Subcommittee’s report being presented to the Standing Committee on Procedure and House Affairs, appear before that Committee and/or present a written argument to the Committee with reasons why the item should be votable.¹⁴⁴

If the Committee agrees with the Member that the item should remain votable, a report to this effect is presented to the House and deemed concurred in, and the item remains votable.¹⁴⁵ If the Committee agrees with the Subcommittee, it presents a report to the House stating that the item should not be votable.¹⁴⁶

Appeal to the House

Within five sitting days of the presentation of a report from the Standing Committee on Procedure and House Affairs that an item of Private Members’ Business in the order of precedence be designated non-votable, the sponsor of the item may file an appeal with the Speaker, in the form of a notice of motion, that the item remain votable. In addition to the sponsor, five other Members representing the majority of the recognized parties in the House must sign the appeal.¹⁴⁷

If the appeal is in order, the Speaker calls for a vote by secret ballot to be held over the course of two sitting days during the hours of sitting of the House.¹⁴⁸ A ballot box is placed on the Table in the Chamber for this purpose. The Speaker announces the results of the vote at the next sitting of the House.

Should the sponsor not file an appeal within five sitting days, then the report is deemed adopted and the item is designated as non-votable.¹⁴⁹

Substitution of Another Item

A Member may also choose to substitute another item for an item that has been deemed non-votable. The Member must give notice of his or her intent to substitute within five sitting days of the presentation to the House of the report of the Standing Committee on Procedure and House Affairs designating an item as non-votable.¹⁵⁰

The Member may substitute any other of the Member’s items already on the Order Paper or Notice Paper. If this is the case, the Member informs the Clerk of the House in writing of the item to be substituted, which then takes the place of the original item in the order of precedence.¹⁵¹ If the Member does not already have a notice of motion on the Order Paper or Notice Paper or a bill on the Order Paper for consideration at the second reading stage, the Member has 20 calendar days from the presentation of the report of the Standing Committee to have a motion placed on notice or a bill introduced. The Member also informs the Clerk of the House in writing that this is the item to be substituted and it is then placed at the bottom of the order of precedence.¹⁵² If the Member fails to place an item on the Order Paper or Notice Paper within the 20 calendar days, the Member’s name is dropped from the order of precedence.¹⁵³

Any substituted item is reviewed by the Subcommittee on Private Members’ Business to determine if it should remain votable.¹⁵⁴

Figure 21.1, “Process to Designate an Item of Private Members’ Business as Votable or Non-Votable”, illustrates the process for the consideration of items placed in the order of precedence by the Subcommittee on Private Members’ Business to determine whether they should remain votable, the subsequent review by the Standing Committee on Procedure and House Affairs, and the appeal or substitution process related to an item that has been designated non-votable.

126.: Standing Order 91.1(1).
127.: Standing Order 91.1.
128.: Standing Order 92(1)(a).
129.: The Subcommittee has no mandate to examine private bills and such bills are therefore votable.
130.: Standing Order 97(2). The Subcommittee cannot designate motions for papers as non-votable items since Standing Order 97(2) already requires such motions to come to a vote.
131.: Standing Order 89.
132.: Standing Order 89. Exception is made for bills requiring a royal recommendation that still do not have one when the House is ready to rule on the third reading motion. For further information on the royal recommendation, see Chapter 16, “The Legislative Process”, and Chapter 18, “Financial Procedures”.
133.: Standing Order 89. When a private Member’s public bill is returned to the House after having been amended in the Senate, the order for its first consideration at this subsequent stage appears at the bottom of the order of precedence.
134.: Standing Orders 91.1 and 92.
135.: See, for example, Twelfth Report of the Standing Committee on Procedure and House Affairs, presented to the House by Joe Preston (Chair of the Committee) on May 12, 2014 (Journals, p. 946); Second Report of the Standing Committee on Procedure and House Affairs, presented to the House by Tom Lukiwski (Regina—Lumsden—Lake Centre) for Joe Preston (Chair of the Committee) on October 25, 2013 (Journals, p. 100).
136.: Standing Order 91.1(2). See, for example, Sixth Report of the Standing Committee on Procedure and House Affairs (items in the order of precedence following its establishment), presented to the House on October 19, 2011 (Journals, p. 347); Thirty-First Report (items in the order of precedence following a replenishment), presented to the House on January 29, 2015 (Journals, p. 2069); Seventeenth Report (addition of a bill originating in the Senate to the order of precedence), presented to the House on September 26, 2014 (Journals, pp. 1494–5).
137.: Standing Order 92(1) and (2). From 2003 to 2014, the Subcommittee reported 10 items as non-votable: Bill C-447, An Act to protect the institution of marriage, 2nd Sess, 37th Parl, 2003 (Grant Hill (Macleod), introduced on September 18, 2003 (Journals, p. 993), placed in the order of precedence on September 23, 2003); Bill C-450, An Act to amend the Marriage (Prohibited Degrees) Act in order to protect the legal definition of “marriage” by invoking section 33 of the Canadian Charter of Rights and Freedoms, 2nd Sess, 37th Parl, 2003 (Jim Pankiw (Saskatoon—Humboldt), introduced on September 23, 2003 (Journals, p. 1026), placed in the order of precedence on February 2, 2004); Bill C-268, An Act to confirm the definition of marriage and to preserve ceremonial rights, 1st Sess, 38th Parl, 2004 (Rob Moore (Fundy Royal), introduced on November 5, 2004 (Journals, pp. 202–3), placed in the order of precedence on November 15, 2004); Bill C-291, An Act to amend the Criminal Code (injuring or causing the death of a child before or during its birth while committing an offence), 1st Sess, 39th Parl, 2006 (Leon Benoit (Vegreville—Wainwright), introduced on May 17, 2006 (Journals, p. 187), placed in the order of precedence on May 17, 2006); Motion M-322 concerning the Court Challenges Program (Stéphane Dion (Saint-Laurent—Cartierville), placed on notice on April 19, 2007 (Order Paper and Notice Paper, April 20, 2007, p. V), placed in the order of precedence on April 20, 2007); Bill C-415, An Act to amend the Canada Labour Code (replacement workers), 1st Sess, 39th Parl, 2007 (Mario Silva (Davenport), introduced on March 22, 2007 (Journals, p. 1142), placed in the order of precedence on April 23, 2007); Bill C-482, An Act to amend the Official Languages Act (Charter of the French Language) and to make consequential amendments to other Acts, 2nd Sess, 39th Parl, 2007 (Pauline Picard (Drummond), introduced on November 20, 2007 (Journals, p. 177), placed in the order of precedence on November 23, 2007); Bill C-486, An Act respecting the negotiation and conclusion of treaties, 2nd Sess, 40th Parl, 2009 (Bernard Bigras (Rosemont—La Petite-Patrie), introduced on December 2, 2009 (Journals, p. 1119), placed in the order of precedence on February 11, 2011); Bill C-292, An Act to amend the Corrections and Conditional Release Act (victims’ restitution and monetary awards for offenders, 1st Sess, 41st Parl, 2011 (Guy Lauzon (Stormont—Dundas—South Glengarry), introduced on September 28, 2011 (Journals, p. 282), placed in the order of precedence on October 4, 2011); Motion M-408 on discrimination (Mark Warawa (Langley), placed on notice on September 26, 2012 (Order Paper and Notice Paper, September 27, 2012, p. VII), placed in the order of precedence on February 28, 2013). In this last case, see Forty-Seventh Report of the Standing Committee on Procedure and House Affairs presented to the House on March 28, 2013 (Journals, p. 2954), as well as the letter to the Committee from the sponsor of the item availing himself of the possibility to appear before the Committee.
138.: See, for example, the letter from Leon Benoit (Vegreville—Wainwright) to the Speaker dated June 13, 2006, stating that he would not appeal the report of the Standing Committee on Procedure and House Affairs concerning Bill C-291, An Act to amend the Criminal Code (injuring or causing the death of a child before or during its birth while committing an offence), 1st Sess, 39th Parl, 2006 (Tenth Report of the Committee was presented to the House on June 7, 2006 (Journals, p. 244), and was deemed concurred in on June 13, 2006, following the receipt of Mr. Benoit’s letter (Journals, p. 275)). On June 14, 2006, Bill C-291 was debated for one hour and then dropped from the Order Paper (Journals, p. 278). See also the letter from Stéphane Dion to the Speaker dated May 9, 2007, stating that he waived his right of appeal of the report of the Standing Committee concerning Motion M-322 (Fiftieth Report of the Committee, presented to the House on May 9, 2007 (Journals, p. 1377), and deemed concurred in on May 10, 2007 (Journals, p. 1390), following the receipt of Mr. Dion’s letter).
139.: Standing Order 91.1. See the Speaker’s statements on February 27, 2004 (Journals, p. 142, Debates, pp. 1164–5, Order Paper and Notice Paper, p. 13), and on June 17, 2009 (Journals, p. 663, Debates, p. 4752, Order Paper and Notice Paper, p. 32). In each case, Private Members’ Business was cancelled on the day scheduled for consideration of the item.
140.: From 1986 to 2003, most items of Private Members’ Business were automatically designated non-votable. A standing committee was charged with choosing from the order of precedence a certain number of “selected” (or “votable”) items. Extensive criteria were adopted to determine if an item should be votable (Journals, May 23, 1986, pp. 2200–1; October 21, 1987, pp. 1717–8). Objections were raised regarding the Committee’s selection of votable items (Debates, November 19, 1986, pp. 1325–34; Speaker Fraser’s ruling (Debates, December 4, 1986, pp. 1759–60)). See also Debates, April 18, 1997, pp. 9919–20; November 4, 1998, pp. 9836–7. In March 2003, the House agreed to a recommendation that all items should be votable unless a panel judged them to be non-votable according to a few very specific criteria (Third Report of the Special Committee on the Modernization and Improvement of the Procedures of the House of Commons, presented to the House on February 28, 2003 (Journals, p. 492), and deemed concurred in on March 17, 2003 (Journals, p. 495) pursuant to the Order adopted by the House on February 28, 2003 (Journals, p. 492)). These new rules were made permanent, with several modifications, in 2005 (Thirty-Seventh Report of the Standing Committee on Procedure and House Affairs, presented to the House and concurred in on May 11, 2005 (Journals, pp. 738–9)). In March 2003, the Standing Committee on Procedure and House Affairs recommended a short list of criteria for making items of Private Members’ Business non-votable (Twenty-Fourth Report of the Standing Committee on Procedure and House Affairs, presented to the House on March 26, 2003 (Journals, pp. 569–70)). In 2006, the Subcommittee on Private Members’ Business undertook a review of the criteria for non-votability and recommended minor changes. The Standing Committee on Procedure and House Affairs accepted these recommendations, reported them to the House and they were concurred in (Forty-Ninth Report of the Standing Committee on Procedure and House Affairs, presented to the House and concurred in on May 9, 2007 (Journals, pp. 1377–8)).
141.: Forty-Ninth Report of the Standing Committee on Procedure and House Affairs, presented to the House and concurred in on May 9, 2007 (Journals, pp. 1377–8).
142.: Standing Order 92(1)(a); First Report of the Special Committee on the Modernization and Improvement of the Procedures of the House of Commons, recommendation 15, presented to the House and concurred in on February 20, 2003 (Journals, p. 439).
143.: Standing Order 92(1)(a). On occasion, the Chair of the Subcommittee has also presented the report at the next meeting of the Committee. See, for example, Standing Committee on Procedure and House Affairs, Minutes of Proceedings, May 8, 2007, Meeting No. 49; December 6, 2007, Meeting No. 10.
144.: Standing Order 92(2). Where the Subcommittee has reported that an item should be designated non-votable, the sponsor has often opted to appear before the Standing Committee to explain why the item should be votable. See, for example, Standing Committee on Procedure and House Affairs, Minutes of Proceedings, March 27, 2013, Meeting No. 68, Evidence, p. 1–2. At other times, the Members concerned chose not to appear. This was the case, in 2007, of Stéphane Dion (Saint-Laurent—Cartierville), whose Motion M-322 concerning the Court Challenges Program was designated non-votable (Standing Committee on Procedure and House Affairs, Evidence, May 8, 2007, Meeting No. 49, pp. 12–3). In 2011, Guy Lauzon (Stormont—Dundas—South Glengarry) did not appear following the designation of his item (Bill C-292, An Act to amend the Corrections and Conditional Release Act (victims’ restitution and monetary awards for offenders), 1st Sess, 41st Parl, 2011, as non-votable by the Subcommittee (Standing Committee on Procedure and House Affairs, Minutes of Proceedings, October 27, 2011, Meeting No. 6).
145.: Standing Order 92(3)(b). See, for example, Eighth Report of the Standing Committee on Procedure and House Affairs, presented to the House on December 13, 2007 (Journals, p. 319). See also Twenty-Eighth Report of the Standing Committee on Procedure and House Affairs, presented to the House on March 23, 2011 (Journals, p. 1397).
146.: Standing Order 92(3)(a); Fiftieth Report of the Standing Committee on Procedure and House Affairs, presented to the House on May 9, 2007 (Journals, p. 1377), and deemed concurred in on May 10, 2007 (Journals, p. 1390). See also Forty-Seventh Report, presented to the House on March 28, 2013 (Journals, p. 2954).
147.: Standing Order 92(4)(a).
148.: Standing Order 92(4)(b).
149.: Standing Order 92(4)(a).
150.: Standing Order 92.1. See, for example, Forty-Seventh Report of the Standing Committee on Procedure and House Affairs, presented to the House on March 28, 2013 (Journals, p. 2954); Status of House Business at prorogation, September 13, 2013, p. 147.
151.: Standing Order 92.1(3).
152.: Standing Order 92.1(4). See, for example, Forty-Seventh Report of the Standing Committee on Procedure and House Affairs, presented to the House on March 28, 2013 (Journals, p. 2954); Journals, April 18, 2013, p. 2996; Status of House Business at prorogation, September 13, 2013, pp. 106–7; Order Paper and Notice Paper, April 19, 2013, p. 50.
153.: Standing Order 92.1(5).
154.: Standing Order 92.1(3) and (4). See, for example, Forty-Eighth Report of the Standing Committee on Procedure and House Affairs, presented to the House on April 25, 2013 (Journals, p. 3034). The Report followed on from the Forty-Seventh Report of the Standing Committee on Procedure and House Affairs, presented to the House on March 28, 2013 (Journals, p. 2954), in which the Committee designated an item non-votable. The sponsor substituted the item for another (Status of House Business at prorogation, September 13, 2013, pp. 106–7). The substituted item was reviewed by the Subcommittee on Private Members’ Business to determine whether it should remain votable.

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