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I am 100% aware of what a no confidence motion is. This is emphatically not what I am referring to.

Impeachment is an unambiguous right of the Parliament of the United Kingdom to have, having been used for centuries even though nobody has been convicted in the last 200, starting in the Good Parliament of 1376 with the impeachment of Baron Latimer. The Commons can impeach and the Lords can convict anyone except the King of anything which is illegal under the laws. The King can pardon fines and imprisonment but cannot pardon the bar from office if the Lords applies such a thing as per the 1701 Act of Settlement.

Nobody has ever been impeached before in Canada.

Canada clearly has words in the Constitution to make its own similar in principle to that of the United Kingdom of Great Britain and Ireland, and impeachment was attempted only 19 years before confederation in 1848. The accused survived a Commons vote, but nobody doubted the legal authority of the Commons was still valid.

Assume that the speaker either goes along with it, or else is sacked by the Commons and a pro impeachment speaker put in their place, or the Commons resolves to amend the rules letting them bypass a speaker who is an opponent of impeachment.

Then what?

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  • Wouldn't a conviction by act of Parliament violate Section 11 of the Canadian Charter of Rights and Freedoms, which prescribes that a person is innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal? Aug 7, 2023 at 5:39
  • en.wikipedia.org/wiki/Bill_of_attainder also mentions that Canadian parliamentary practice disallows bills of attainder. Aug 7, 2023 at 5:40
  • @NateEldredge The US has Bill of Attainder provisions in its constitution, yet that hasn't stopped impeachments in the US. While I'm generally not too familiar with US law, I understand this is because both impeachment and the provision against bills of attainder are constitutional, and one part of the constitution generally doesn't overrule another. The same concept could be at play in Canada: If impeachment is constitutional, then the Charter (also constitutional) probably would not override it.
    – DPenner1
    Aug 7, 2023 at 16:18
  • Maybe the question is what OP means by saying "convict". In the US system, the "conviction" by the Senate following impeachment is something fundamentally different than conviction of a crime in the ordinary sense; it only results in the removal of the convicted official from their office, and it does not and cannot, in itself, result in depriving them of their life, liberty or property. "No bills of attainder" means that Congress does not even possess the latter power. Aug 8, 2023 at 14:28
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    So if OP here is using the word "convict" in its ordinary criminal sense (since I'm not aware that Canadian law recognizes any other sense), then Section 11 and "no bills of attainder" answers the question. If they mean it in the sense of the US impeachment process, then maybe the question should be rephrased as "Does Parliament have the power to remove officials from office?" Aug 8, 2023 at 14:31

2 Answers 2

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Section 18 of the Constitution Act 1867 states:

The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.

Note that the Parliament of Canada is responsible for defining the privileges of its houses, and there is no default fallback. The Parliament of Canada Act 1985 define the privileges in section 4 as

The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise:
(a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, in so far as is consistent with that Act; and
(b) such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of the passing of the Act, held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof.

So in theory, the Canadian House of Commons could impeach someone right now, as an inherited power from the UK HoC, but if this was tried the Commons could fall foul of the Canadian Charter of Rights and Freedoms, and the Senate would be under pressure not to try the individual impreached.

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  • Sure, the Senate could choose not to hold the trial, but if they did, then what? And how would it fall foul of the Charter if the Senate only sentenced them to being barred from public office and being sacked from their current office? Aug 5, 2023 at 3:55
  • Section 9 (the right not to be arbitrarily detained or imprisoned) would likely be violated by the Commons/Senate, as the Commons must take into custody the person to be tried.
    – Noch
    Aug 5, 2023 at 5:50
  • If impeachment power does indeed exist via inheritance from the UK as specified by the Constitution Act 1867, then your suggestion that it might violate the Charter is suspect: Both are constitutional, and as I detail here, the unwritten constitutional power of the House to manage itself by excluding outsiders was found to not be overridden by the Charter. That said, the more recent Toronto v. Ontario possibly overrules the previous case law.
    – DPenner1
    Aug 5, 2023 at 19:22
  • "as the Commons must take into custody the person to be tried": I haven't found any evidence that Lord Melville was taken into custody.
    – phoog
    Aug 6, 2023 at 6:42
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The Canadian Parliament cannot “impeach” someone

They can, however, punish them for breach of privilege or contempt

Any disregard of or attack on the rights, powers and immunities of the House and its Members, either by an outside person or body, or by a Member of the House, is referred to as a “breach of privilege” and is punishable by the House.[116] There are, however, other affronts against the dignity and authority of Parliament which may not fall within one of the specifically defined privileges. Thus, the House also claims the right to punish, as a contempt, any action which, though not a breach of a specific privilege, tends to obstruct or impede the House in the performance of its functions; obstructs or impedes any Member or officer of the House in the discharge of their duties; or is an offence against the authority or dignity of the House, such as disobedience of its legitimate commands or libels upon itself, its Members, or its officers.

The last time this occurred was against a RCMP officer in 2008. The punishment imposed was simply the fact that they had been found in contempt.

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    The Canadian Parliament hasn´t impeached someone, but that doesn´t mean they can´t. There is obvious precedent in Britain for how its done, but nobody has tried in Canada besides a couple of MPs who got shot down by the speaker but never as a serious motion. It´s not expressly legal or illegal in Canada. Jul 30, 2023 at 22:44
  • The Parliament of Canada Act states that the Canadian HoC have all the powers of the UK HoC as of 1867, which means that Canadian HoC may have the power to impeach.
    – Noch
    Aug 5, 2023 at 6:10

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