Mahsi, Mr. Speaker.
Laws Applicable in the Northwest Territories
Charter of Rights and Freedoms.
Canada’s Charter of Rights and Freedoms
provides that every citizen has the right to vote in elections for Members to the House of Commons or Legislative Assembly and to “be qualified for membership therein.” However, the right to run for office may be limited in ways justifiable in a free and democratic society. Court decisions to date show that such restrictions, when challenged, will be carefully scrutinized to determine if they are absolutely necessary to ensuring confidence in the election process. Within those parameters, provinces and territories may set criteria for candidates running for election.
Eligibility for Office in the Northwest Territories Legislative Assembly
Provisions of the Elections and Plebiscites Act and the Legislative Assembly and Executive Council Act define who is an eligible candidate for election and who may serve in the Legislative Assembly.
Generally, a person is eligible to be a candidate if he/she is a Canadian citizen, is at least 18 years old, and has been a resident of the Northwest Territories for at least 12 months.
Current legislation disqualifies candidates or Members convicted and imprisoned as a result of a criminal offence; the disqualification ends with the term of imprisonment. The legislation is silent on offences that do not result in jail sentences. Such matters fall to the Legislative Assembly’s rules, code of conduct, and the use of parliamentary privilege to discipline or expel its Members.
Elections and Plebiscites Act
Legal precedents set elsewhere in Canada have sometimes led to changes to NWT legislation. For example, in 1995 the Elections Act was amended to allow persons imprisoned in a correctional facility to vote if serving a sentence of less than two years. The law was also changed to ensure that prisoners remained ineligible to run for office (also a provision of the Canada Elections Act). This led to questions about what would happen in the event of an offence by a sitting member. Such circumstances were subsequently addressed in the Legislative Assembly and Executive Council Act, discussed below.
The Elections and Plebiscites Act also includes a five-year prohibition of anyone convicted of a major election offence from being elected or sitting as a Member, voting, or holding office appointed by the Commissioner or Legislative Assembly. These offences include such conduct as voting more than once, intentional miscounts, knowingly making false statements about a candidate’s character, attempting to intimidate or compel a person not to run for election, and others.
Legislative Assembly and Executive Council Act
The Legislative Assembly
and Executive Council Act sets out requirements for Members’ and Ministers’ conduct, including conflict of interest provisions and a Member’s general obligation to “arrange his or her private affairs in such a manner as to maintain public confidence.”
Since its inception, the act has been amended respecting offences that would prevent a Member from continuing to serve. In 1995, following changes to the Elections Act and the adoption of a zero tolerance motion the year before, the Legislative Assembly and Executive Council Act was amended to disallow a Member from serving if convicted of an indictable Criminal Code offence involving violence or sexual exploitation of a child. Expulsion was not automatic if a Member was convicted of a less serious summary offence. In such cases, the Legislative Assembly would determine if expulsion or discipline was necessary. However, the act did not specify particular criminal offences, left important issues open to interpretation, and ignored other potentially serious offences that might tarnish the public confidence, trust, and integrity of a Member. This provision was therefore repealed in 2006 and replaced with the requirements that exist today.
Currently, any Member who would no longer be eligible to be a candidate for election is not permitted to continue in office, and his or her seat is deemed vacant. In the event of a conviction or imprisonment of a Member, a suspension from office allows for legal appeals to be resolved before full disqualification takes place.
Other Relevant Legislation
Canada Elections Act
Under this Act, a person who is imprisoned in a correctional institution is not eligible to be a candidate. In addition, any person convicted of an offence that is an illegal or corrupt (election) practice under the act is not entitled to be elected to or sit in the House of Commons for five or seven years, respectively.
Legislative Assembly and Executive Council Act (Nunavut)
Nunavut’s legislation sets out the circumstances which will lead to a Member’s loss of his or her seat. Under Nunavut’s Legislative Assembly and Executive Council Act, a Member cannot serve if they are convicted of an offence under the Criminal Code prosecuted by indictment (typically, a serious offence). The law also sets out a discretionary provision to consider whether it is in the public interest and in the interest of the Assembly to expel a Member convicted of a lesser (summary) offence. Nunavut’s regime has not been challenged in court and is similar to the Northwest Territories’ restrictions in place from 1995 to 2006.
House of Assembly Act (Nova Scotia)
The laws of several provinces prevent a person imprisoned on conviction of an indictable offence from sitting as a Member or running for the office. This limitation generally expires when the term of imprisonment ends, as it does in the Northwest Territories.
In Nova Scotia, it is possible in certain circumstances for the prohibition from candidacy or holding office to be longer than the actual sentence imposed. This could occur if a person was convicted of a serious offence punishable by imprisonment of more than five years, but sentenced to a shorter term. In such a case, the person is ineligible to be nominated as a candidate for a period of five years from the date of conviction. With that, Mr. Speaker, I would like to pass the report on to Minister Sebert.