April 24, 1901

CON

William Barton Northrup

Conservative (1867-1942)

Mr. NORTHRUP.

May be referred to the courts. The point I take in this case is that there was no return, or double return, or undue return, but that there was no election at all. I say that the writ issued on the 10th of November was wholly void, and all proceedings under that writ were necessarily void also.

I therefore hold that the returning officer has returned a gentleman as a member of this House for Nipissing when as a matter of law he had no more power to make that return than he would have had if the writ of election had been issued by an usher of this House; and if the writ was illegally issued, then it is perfectly clear that the seat of Nipissing in this House is still vacant.

As to the power of hon. gentlemen to issue that writ on the loth of November, we shall all agree, I presume, that these writs were issued originally as a lbatter of prerogative. All must admit, I presume, that the many assemblies of the nature of parliaments that were held from the days of the old Witanagemote which first met in the forests of Germany or under the oaks of England down to the 13th century, must have been called by royal prerogative. The first parliament itself must have been called by royal prerogative, since there was no statute under which it could be called. But from the very beginning there was a struggle between the Crown and the parliament as to the privileges of parliament. As long ago as the reign of Queen Elizabeth, as laid down by the historian Hallam, parliament succeeded for the first time in wresting from the sovereign the admission that parliament was entitled to full control over its own proceedings and elections. The power of prerogative of course still exists: but we all know that the prerogative of the Crown can be taken away, not only by express words, but by necessary implication. I am quite aware that in the ordinary text books the doctrine is laid down broadly that the Crown cannot be bound by any statute unless it is distinctly named; but this, like many legal rules, is one that with many exceptions. No one can contest the soundness of the rule, but there are so many exceptions to it that the rule might almost be as well stated the other way.

To illustrate the point I am making, it is well known that before constitutional powers of self-government are given to a conquered colony, the Crown has a prerogative right to govern that colony ; but as soon as constitutional powers of self-government are given to the colony, the very giving of those powers, by implication, even although the Crown is not named, deprives the Crown of its prerogative to the extent of the constitutional powers so given. We know too that the Crown is entitled to all the minerals in a colony; but a grant of land to the Canadian Pacific Railway would deprive the Crown itself of that right unless it were directly named. Again, we all know that

Topic:   SUPPLY-NIPISSING ELECTION.
Permalink
IND
CON

William Barton Northrup

Conservative (1867-1942)

Mr. NORTHRTJP.

I am quoting from May, page 723. It will be seen that the case which I bring before the House to-day is very closely like that of Sir Sydney Waterloo in principle. The question whether the sitting member was a government contractor or not could have been ventilated before The courts and there was no reason why it 1154

should not be fought out there ; but it was not. But, when parliament's attention was called to the fact that a gentleman was occupying a seat who, for some reason should not fill it, parliament took action and the seat was vacated. In this ease, if the view of. the law I am submitting be wrong, if the Parliamentary Committee decide that the issue of the writ of 10th November was legal, no harm is done-the country knows that the hon. gentleman who was returned was entitled to the seat, and can retain it. If, on the other hand, it is decided that the writ was illegal, I am sure that no gentleman on the other side would for a moment think of abrogating the privileges of the people and lowering the dignity of the House by retaining as a member a gentleman whom the committee has solemnly decided should not be here. I know that hon. gentlemen will raise objections to having this matter brought before the committee, on the ground that it is a partisan body, and that party politics are bound to have weight there. It will be said that this has always been the case. But in 1882 Hon. Edward Blake, one of the most distinguished men [DOT]who ever sat in this House, giving his opinion on this point, stated that he had sat on many parliamentary elections committees, and had always found that, no matter whose seat was at slake, the committee endeavoured to do justice. I hope the right hon. gentleman who leads the House will see the impropriety of a Liberal government refusing to protect the privileges of this House and the rights of the people. A fossil Tory government might be accused of a want of consideration for the rights of the people, but surely it will not be said at the beginning of this century and in our Canada that a Liberal government backed by an enormous majority, as the right hon. gentleman's government is, are unwilling to do justice to the people and to the House, that they feared to have a matter of this kind referred to a committee, and, by a hostile vote have shut off an opportunity to investigate and consider this case, and so prevent justice being done. I shall not occupy further time of the House, but will submit the motion of which I gave notice the other day :

That all the words after the word ' That ' In the proposed motion be left out and the following substituted therefor :

At the general election of members to serve in the House of Commons for the Dominion of Canada which was held on the 31st October and the 7th November, A.D. 1900, a writ for the election of a member of the House of Commons for the electoral district of Nipissing was duly issued to H. C. Varin, sheriff of said district, as returning officer for such district.

That the returning officer received such writ and duly posted in the said district his proclamation in the form and manner required and prescribed by section 24 of the Election Act, 1900, more than eight days before the 31st day of October, 1900, being the day fixed for the nomination of candidates at such election.

That the returning officer alleges that on or about the 18th October, 1900, he came to Ottawa and consulted with the Secretary of State, the Hon. R. W. Scott, as to what lists should he procured by him and used in the said election, and that he was instructed to use those of 1898.

That subsequently the returning officer further alleges that on the 23rd day of October, he wrote to the Secretary of State touching the voiters' lists, and on the 26th October received a telegram from him in the following words :-

* H. C. Varin,

' North Bay.

* You have been authorized to use voters' list, 1900, already prepared or in course of preparation in the unorganized district of Nipissing- official letter goes up to-nght. Notify all parties interested. This will supersede lists for 1898 where more recent ones have been prepared.

[DOT] (Sgd.) R. W. SCOTT.' That the returning officer further alleges that on the 28th of October aforesaid he came to Ottawa, called on .the Reform candidate, Mr. C. A. McCool, and with him again interviewed the Secretary of State regarding said lists.

That in accordance with a report purporting to be signed on the 25th of October, A.D. 1900, by four members of the government, an order in council was passed bearing date the 26th of October, A.D. 1900, instructing the sheriffs of Algoma and of Nipissing to prepare voters lists for such districts, a copy of which order in council is alleged to have been received on the 30th of October, A.D. 1900, by the sheriff of Nipissing, who was the returning officer aforesaid. . _

That on the 31st day of October, A.D. 1900, the returning officer posted notices up near the court-house door, and in the court-room where, under his proclamation, the nomination was to be held, which notices postponed the said election tp a future day to be hereafter fixed and were in the words following :-

'[DOT]By order to me directed from His Excellency, dated 26th October, 1900, to take the necessary steps to put in force and effect the_ 1900 unorganized voters' list for Nipissing district, by virtue of said order I hereby adjourn the nomination and election, as per my proclamation dated 10th October, 1900, and will issue new proclamation as soon as His Honour the district judge certifies to said list, or sooner if possible.

' (Sgd.) H. C. YARIN,

' Returning Officer for the District of Nipissing.

* Dated at North Bay,

' 30th day of October, 1900.'

That it is alleged that one J. B. ICloclc and his agent attended the said court-room on the 31st day of October, 1900. at the time fixed by the returning officer's proclamation for the nomination of candidates, haying with them a duly executed nomination paper and his deposit of $200, which they desired and intended to give to the returning officer, but neither that officer nor tlie election cleric attended at said

time or place. , ,

That tlie returning officer lias admitted that with the object of preventing any nomination being made on the said 31st day of October, 1900, he took his election clerk, one Flannery to his own house and there both lay concealed during the day fixed for said nomination.

That the returning officer has admitted that he gave instructions to his deputy at his office

Topic:   SUPPLY-NIPISSING ELECTION.
Permalink
CON

William Barton Northrup

Conservative (1867-1942)

Mr. NORTHRUP.

on the said day to say to inquiries that he had left town, and it is alleged that he also compelled or induced his wife on the said day to reply to inquiries made for him at his house that he was not at home and she did not know where he was.

That in consequence, as it is alleged of the matters aforesaid, the said Kloclc was unable to secure a uomination on the 31st day of October, as he desired.

That on the 10th day of November, 1900, the returning officer is alleged to have received from Ottawa a telegram in the following words :-

* Return election writ, endorsing on It reasons for omission to hold election. New writ goes up to-day, dated 10th of November, nomination 28th November. On this information you can proceed with posting a proclamation.'

That shortly thereafter the returning officer received a new writ of election for the said electoral district of Nipissing, bearing date the 10th day of November, 1900, accompanied by a letter from the Clerk of the Crown in Chancery in the following words :-

H. C. Varin, Esq.,

' Returning Officer,

' North Bay, Ont.

' Sir,-I beg to transmit herewith a new writ dated this day, returnable 27th December next, and fixing the 28th November as nomination day, for a candidate in the electoral district of Nipissing. Please return first writ when acknowledging receipt of this.

' I have the honour to be, &c.,

' H. C. LaMOTHE,

* ' Clerk of the Crown in Chancery.'

That although the new lists referred to in the returning officer's notice postponing the election liad not been prepared and the returning officer could not procure any other lists than those available on the 31st of October then past, he proceeded to hold an election under the new writ, posted up his proclamation, received a nomination paper and deposit on behalf of the said A. C. McCool, and no other nomination having been made, he returned the said A. C. MOCool as a member of this Honourable House for the electoral district of Nipissing, and the said A. C. McCool now occupies a seat in this House.

That in view of the matters herein set forth, the question of the validity of the writ of election bearing date 10th November, 1900, and the conduct of the said returning officer be referred to the Committee of Privileges and Elections for the purpose of inquiring into all the circumstances of the case and reporting on the validity of the said election and on the action of the returning officer, and that the House do also order that the Clerk of the Crown in Chancery do attend the said committee with all writs, papers and documents relating to the said election.

I think, Sir, that enough has been said to show that an inquiry should certainly be held in regard to the conduct of the returning officer. I think enough has been said to show that, to put it the least strongly, there is grave doubt as to the power of the government to issue this writ that was issued on the 10th of November. There is another grave reason why this matter should he referred to a committee. Hon. gentlemen are aware that a case lias been before the courts

in connection with this first election; but a perusal of the records in that case will show that there was no action brought before the judges which could possibly have resulted in unseating the present occupant of the seat of Nipissing. It was an action brought by Mr. Kloek against the returning officer to declare that he, Mr. Kindt, had duly made his nomination deposit and filed his papers on the 31st of November, and therefore was entitled to be returned member under the first writ. That was the only question considered there at all. Therefore I feel justified in saying that the questions that we ask to have referred to the Committee on Privileges and Elections, the validity of the second writ-for we are not bothering about the first writ-and the conduct of the returning officer, are . cases that have not been before the courts, and therefore are fit cases to go before the committee. One further argument in conclusion I may be permitted to allude to, and it is this : In this case which was brought before .Sir Alexander Boyd and Mr. Justice McMahon, an official of one of the departments in Ottawa produced a record showing that a minute was passed in council authorizing these new lists to be prepared, which necessitated a postponement of the election. Now we all know that the rules require that there should be four ministers present at a meeting of council, and the names of four ministers were given in court there as the ministers who were present when this order in council was signed. Now I am quite prepared to admit that, I do not for one moment impugn on the floor of this House the honour of the ministers who were stated to be in Ottawa on the 25th of October and to have joined in that order in council ; but the fact remains, the people outside are apt to comment upon it, for it had been made public property through this trial, that these four ministers who were present and joined in that order in council, are found, by a reference to the newspapers of that day, and at a time when movements of the ministers were very naturally observed and chronicled -for it was within a few days of the elec tion-we find, I say, that the leading Reform newspapers gave accounts of visits made by these ministers and meetings addressed by them in various parts of the country, which accounts, if they were true, and if these ministers were indeed attending these meetings, would have shown that it was quite impossible for them to have been in Ottawa on the 25tli of October. But I do not for one moment accuse the ministers of not having been here. I only say in justice to themselves, this matter having become public property, being a matter of public notoriety and comment, I think that is an additional reason why hon. gentlemen opposite should wish to have this case referred to the Committee on Privileges and Elections in order that charges such as these, which no doubt are ill-founded, may

be disproved, and doubt thereby removed from the public mind.

Topic:   SUPPLY-NIPISSING ELECTION.
Permalink
?

The SOLICITOR GENERAL (Hon. Charles Fitzpatrick).

I have listened, and I am quite sure that all the members of this House have listened with considerable pleasure and a great deal of profit, to the interesting and instructive address that has just been presented to the House by my hon. and learned friend from 'Hastings. (Mr Northrup). I am quite sure that notwithstanding all that he has said in support of thq motion which he has offered to the House, shorn of all its legal technicalities, that motion may he reduced to this statement, that he asks this House to refer to the Committee on Privileges and Elections a question of the validity of the writ that was issued -on the 10th of November last, and also a question of the conduct of the returning officer appointed to carry on the proceedings with respect to the Nipissing election. Now I have always understood that the object of a reference to the Committee on Privileges and Elections was to provide an easy and convenient means of getting evidence in support of some question that is submitted for the consideration of the House. I think lit will be admitted, I think it is an undoubted legal proposition, that it is in the power of the House to summon before it the returning officer or any other official of whose conduct the House has occasion to complain, and having summoned that officer before the House, it would be competent for the House to examine witnesses for the purpose of inquiring into all the circumstances attending the offence complained of. Now in order to save the necessity for adopting that proceeding it has been sanctioned by parliamentary usage that a committee should be appointed to which the duty would be assigned of making an inquiry that the House itself would have the right to make. While that committee lias been appointed for the purpose of making that inquiry, the House has retained the inherent power to conduct the inquiry itself. Let me draw my hon. friend's attention to this fact, that while the Committee on Privileges and Elections was appointed for the purpose of making inquiries into matters of this sort, it is not to be overlooked that in 1873 parliament determined that questions affecting elections should be detenmied by the courts. I am not going to state, I have no desire to state, I think it would be improper for me to state, that parliament has divested itself of power to deal with matters of this sort ; on the contrary, I submit that while parliament has delegated to the courts the right and duty to inquire into matters affecting elections, it. has still retained the power to deal with the conduct of returning officers, who are officers of the House, and also to deal with any matter which may affect the position of a member of the House. But while it has re-

36J9

tained that power iii Its own hands by the choice that it has made, or rather by the delegation it has made to the courts, it has decided that this is the preferable course to pursue ; that is to say, a preferable course, in the opinion of parliament when it passed the Elections Act of 1873, was to have these matters inquired into by the courts of the land. Now what would be the result of a reference to the Committee on Privileges and Elections ? The result of a reference to the Committee on Privileges and Elections would be a report on all the facts connected with the issuing of the writ of the 10th of November, and on all the facts connected with the conduct of the returning officer who refused to hold the election as directed to do by the writ. For the purpose of that inquiry it will be open to the Committee on Privileges and Elections to summon before it all those witnesses who might be able to give evidence, and all those witnesses who might be able to produce documents for the purpose of enlightening- the committee. My hon. friend said, in the course of his argument, at least I understood him to say, that the committee would decide this, or would decide that. The committee can decide nothing. All that the committee can do is to inquire and to make a report to the House, and the House decides upon that report. Under the circumstances of this case why refer this matter to the Committee on Privileges and Elections V The matter has been before the court. All the facts have been inquired into on the petition which was a petition to seat Mr. Klock. because it was not a petition to contest the election. It was a petition by virtue of which it was attempted to seat Mr. Klock as the member for Nipissing, after he had failed to obtain the sanction of the electors. That was the object of the petition and that was the petition that was dismissed. In connection with that petition you had all the facts inquired into, all the facts connected with the conduct of the returning officer, with the conduct of the election clerk, and in respect to every question connected with the issuing of the writ, we have the facts here. There can be no dispute about that. Under the Contested Elections Act, these facts having been inquired into in the manner I have described, the judges are obliged to report, not only their finding, but they are obliged to report the evidence upon which their finding is based to the Speaker, and as a matter of fact, these facts having all been made the subject of a judicial inquiry, the evidence is here now at the disposal of the House and the finding of the judges also. Now, how much better off would we be if we had at the present time, another inquiry held before the Committee on Privileges and Elections ? What would be the use of it ? Of what avail would it be ? It would be of no use, it would be a sheer Mr. FITZPATRICK.

waste of time on the part of the committee and on the part of the House. We have all the facts before us, and therefore, being in possession of these facts, I cannot see what is the use of having this reference to the Committee on Privileges and Elections. Now, my learned friend said that the question of the validity of the writ issued on the 10th November was not before the courts. It was before the courts, but it was not decided. I have the report of the proceedings here, and I will ask my hon. friend to listen to me while I read from page 163 of the official record. The question is whether the validity of the writ of the 10th of November was before the court. Here is what the Chancellor says, addressing Mr. Macpherson who appeared for the petitioner :

As to your statement as to the power of the Crown to withdraw its writ and issue another, the legal position, assuming your petition to be provgd as to the legal effect resulting from it by way of demurrer from the petition, &c.

He asks for argument on that very point. It is true that he does not find on the point, but the question was argued before him. Dealing with that question, the writs for the general election were issued on the 9th October. I have forgotten the return dky, but it was after the 7th November at all events. Nomination day was fixed for the 31st October, and the 7th November was the day fixed for voting. By the act of the returning officer, with which act I shall take occasion to deal later on, that writ was null and of no effect. That is to say, rightly or wrongly, by his act, no election was held on the 7th November, and no nomination was held on the 31st October, although, by the writ, he was empowered to hold an election on the 7th November. What was the result ? If you adopt the argument of the hon. gentleman the result would be that the constituency would be disqualified. The result is that the constituency will be unrepresented. My hon. friend has dealt with the case of' a byelection. My hon. friend, in all the cases he referred to, dealt with the cases of by-electious, where a writ was issued by the Speaker of the House pending a parliament, but you must remember that there is no parliament, that this is at a time when parliament is dissolved. You had no House, you had no Speaker. The conditions were at a time when there was no authority to whom you could appeal for the purpose of issuing the writ. Now, I admit that there is no case in point; at least. I have not been able to find a case in point. Perhaps my hon. friend, who has certainly given this matter a great deal of care and study, has found a case, but, as far as I am concerned, there is no case in point. Then, let us reason by analogy. In the Election Act it is provided that the Governor General issues the writ. Section 11 says :

This person to whom a writ is addressed, as hereinbefore provided, shall be the returning officer at the election to which such writ relates: Provided always, that if the person to whom the writ has been addressed refuses, or is disqualified or unable to act, the Governor General may appoint another person to be such returning officer.

That is to say, that if the returning officer to whom the writ is addressed, refuses to act, it is optional with the Governor General to appoint another returning officer. Now, here, the returning officer refuses to act at the eleventh hour and returns his writ when it is impossible to appoint another returning officer for the purpose of carrying on the election, and if, at the last moment, immediately previous to nomination, the returning officer, by his act, makes it impossible to carry on the election, is it conceivable that this constituency is to be disfranchised and that it is not in the power of the Governor General-because if it is not in his power there is no power in the land-to deal with it-but that the whole matter must remain open until parliament is convened for the purpose of dealing with it ? I submit that it is a very delicate and intricate legal question. It is a question which is not at all free from doubt, but, bringing to bear upon it. not only the legal acumen that some people are supposed to possess, but common sense, is it to be assumed that this constituency, by the tortuous act of the returning officer, is to remain disfranchised, and that there is no remedy ? The only remedy is the one that is adopted in this instance here. But, before I pass from that question, assuming that we did refer it to the Committee on Privileges and Elections, what information could we get that the House is not now in possession of at the present time ? What information could we get which will enable us to come to a conclusion more satisfactorily than we can come to with the information we have now got ? In so far as that question is concerned it is undoubted that the writ was issued on the 10th November, it is undoubted that the writ issued by the action of the Governor General, and it is undoubted that there is no provision in the statute which prevents the issue of the writ. These being the facts, what benefit could we get from a reference of this matter to the Committee on Privileges and Elections, and has the House at the present time not sufficient information to enable it to come to a conclusion?

I come now to the second question; that is the question in respect to the returning officer. What is the position in respect to that official ? The writ issued on the 9tli of October, under section 10 of the Election Act, the nomination was fixed by the election writ for the 31st October, and the voting day for the 7th November. On the lOtii October, the day after the writ issued, the returning officer issued his proclamation.

He immediately applied ior the lists under section 22 of the Act, and it should be borne in mind, when dealing with this returning officer, that Nipissing is geographically one of the largest constituencies in the province of Ontario. It is 250 miles from east to west, and 200 miles from north to south. The proclamation had to be posted in the whole of that area within eight days after the proclamation issued.

Not only have you this large territory to cover, but in addition to that there were within the limits of the district, sixty-one polling divisions; three in the county of Renfrew, twenty in the district of Algoma and thirty-eight in Nipissing proper. Of these sixty-one, twenty-eight polling divisions were within what we call the unorganized territory. Now, within the limit of this unorganized territory there are 2,206 voters, the total vote of the constituency being something under 9,000. Upon inquiry the returning officer found that there were no legal lists in force for the whole of the unorganized territory; that is to say, that if he had proceeded to hold an election on the 7th of November, as he was directed to do by the writ, 2,200 voters out of something under 9,000 would be disqualified, or practically one-fourth of the voters of the constituency would not have been able to exercise their franchise at all. The returning officer finding that to be the case, applied to the authorities at Ottawa for the purpose of endeavouring to have this difficulty removed. It appears that under the law as we have it in the province of Ontario, the lists in force in the unorganized territory were those which had been made in 1898 under the provincial law. A provision was made by 62 Vic., that the lists in that territory so made in 1898 would be available for all purposes until such time as the Lieutenant Governor in Council would determine to make new lists. When this election writ was issued, the lists then in force were those made in 1898. They were, therefore, lists that were more than a year old, and being lists more than a year old, under section 9 of our Franchise Act, they were not available for the election then pending. At the same time the lists for that territory were being prepared and at a subsequent date would be available. Now, previous to the Election Act of 1900, if this writ had been issued to the returning officer it would have been in his power to fix the nomination and the voting day; he might of his own motion have postponed the nomination and voting day to meet the difficulty that occurred. As a result of the Election Act of 1900, with respect to the district of Nipissing this power was taken from him. Further than that, if there had been any unforeseen accident or delay, or any other cause why the proclamation had not been posted within the delay required or in the case of the death of a candidate, it would be within the power of the returning

officer under section 30 to postpone the elec-1 tion. The returning officer having this power to postpone under the conditions that I pointed out, finding that this large pro-porton of the electorate would be disqualified took upon himself to determine that the writ would not follow its due course or have its effect, and he returned the writ to Ottawa making thereupon a special return. I am not here to say that the returning officer had a right to do that I am not here to say that he was legally technically right. On the contrary, I admit that the returning officer had not power to suspend the operation of this writ, that he had not pow-er to suspend this election. I admit all that. But under the circumstances, lie having acted in perfect faith, he having done what under those circumstances would apparently be perfectly justifiable; what are we going to do about it. Are we going to condemn him now ? He having-acted under the conditions I pointed out, are we going to proceed to condemn the returning officer because under the circumstances, in the exercise of the discretionaiy power which he thought he was vested with, postponed the election, are we going to determine that he was guilty of a wrong and punish him. Why, if the returning officer was guilty of wrong-doing, if any offence can be traced to him we have provided machinery which enables hon. gentlemen to punish him. That machinery is provided under sections 19 and 20 of the Act, by which he can be made liable to a penalty of $500 in addition to all damages if he committed any wrong whatever in respect to the return of the writ.

As I have said, the election was postponed and my hon. friend (Mr. Northrup) says that the conduct of the returning officer on the day of the nomination was such as to merit condemnation. Well, if a man is to be condemned for being a man of peace, then I admit the returning officer ought to be condemned. On the nomination day the returning officer, knowing how people were excited about this election, decided he would conveniently keep at home and keep out of the way of the persons who had come for the nominations to North Bay. He kept out of the way. That is all that took place. He having decided to postpone the nomination, kept out of the way, because on that day not only Mr. Ivlock, but Mr. McCool were both in North Bay, both having their nomination papers and their deposits ready. They were both there for the purpose of proceeding with the election. Notice having been given to both of them that the nomination would not be proceeded with, the returning officer, knowing that he had no duty to perform, conveniently kept out of the way. It may be that the hon. gentleman (Mr. Northrup) and others would have acted differently, but after all, we are not here to determine the courage or valour of the returning officer; we ai*e here to de-Mr. FITZPATRICK

termine how far his conduct was proper or improper in connection with the election. My hon. friend (Mr. Northrup) said a great injustice had been done to the electors, I say respectfully that no injustice had been done at all. A great injustice would have been done them if the elections had taken place on the 7th of November, because then a large proportion of the electorate would have been disqualified, and as they became qualified at the time the election took place no injustice was done anybody. On the contrary, even-handed justice was meted out to all.

Topic:   SUPPLY-NIPISSING ELECTION.
Permalink
CON

Frederick Debartzch Monk

Conservative (1867-1942)

Mr. MONK.

I would like to call the attention of the Solicitor General to the allegation in the motion; that the new list was not prepared, but that the election nevertheless was held upon the old lists.

Topic:   SUPPLY-NIPISSING ELECTION.
Permalink
?

The SOLICITOR. GENERAL.

That is the allegation in the motion. The answer to it is in-the certificate which I have got here, giving the date at which the voters' lists were made available for the election, and I find on reference to that certificate that they were all available before the nomination. The certificate gives the date at which the voters' lists for the different portions of the unorganized territories were available, and the statement is as follows :

Airey, Sabine and Lyell, November 26; Dryden, Neelon, McClelland and Carson, November 24 ; Chisholm and Boulter, October 30; township of Chisholm, October 30; MacLennan, Rathburn and Street. November 13 ; Murchison, Lyell and Preston, November 26;' township of Hugel, November 7; Casey, Harris, Hilliard, Brethour and Ingram, October 30; Blezzard and Halmr, November 24; Sabine and Lyell, November 7; Long Sault, October 30; Lauder and Wilks, ;

Montreal River and Temiscamingue, October 30; Field, Badgerow, Gibbons, Grant, Bastedo and Crerar, November 13; township of Buck, October 30 ; Peck, Hunter, Canisby and McLaughlin, November 26; Hagar, Loughrin, Aurey and Hawley, November 28; Casimer, Appleby and Jennings ; Kirkpatrick, Badgerow, Appleby and Casmier, November 26 ; Dymond, Harris, Harley, Hudson and Kearns, October 30.

Topic:   SUPPLY-NIPISSING ELECTION.
Permalink
CON

Frederick Debartzch Monk

Conservative (1867-1942)

Mr. MONK.

What is the hon. gentleman reading from ?

Topic:   SUPPLY-NIPISSING ELECTION.
Permalink
?

The SOLICITOR GENERAL.

A certificate I got from the Secretary of State. Now, it is to be noticed that after the writ had been returned to Ottawa, a new writ issued ; and if it had been the desire of Mr. Klock to offer himself as a candidate, it was open to him to do so. Why did he not avail himself of the opportunity offered to him, as the sitting member did ? Why did he not have his nomination paper prepared, so that he might offer himself as a candidate under the new writ ? He did not choose to do that. But, my hon. friend says it was not open to him to contest the election with Mr. McCool on the second writ. There I take issue with him. Under the new writ, it was open to Mr. Klock, as it was to any other elector of the electoral district, to contest the election with Mr. APEIL 24, 1901

McCool, because there had been an undue return. If there had been no writ, there had been no election, and the whole issue would have been tried out ; and I submit that, having contested the election, and not having raised any question at the time, Mr. Klock and his friends practically acquiesced in the election of Mr. McCool ; and the raising of this question of the validity of the second writ is a complete afterthought ; because if they had no confidence in it at the time, they would have submitted it to the courts for adjudication, as it was open to them to do.

Topic:   SUPPLY-NIPISSING ELECTION.
Permalink
CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

I would like to ask the hon. gentleman what date he refers to in making the statement in this document ? It says the date of final certificate- what does that mean ?

Topic:   SUPPLY-NIPISSING ELECTION.
Permalink
?

The SOLICITOR GENERAL.

It means the final certificate of the legal custodian in possession of the lists-the certificate fixing the date when they came into force.

Topic:   SUPPLY-NIPISSING ELECTION.
Permalink
CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

I do not know that my hon. friend quite meets the difficulty I have about this. Do these dates mean the dates on which -the lists were finally completed by the officer having charge of them ?

Topic:   SUPPLY-NIPISSING ELECTION.
Permalink
?

The SOLICITOR GENERAL.

Yes ; there was nothing more to be dealt with. Now, my hon. friends have not thought proper to test this question of the validity of the election in the courts, and now they seek to have it tested in this House of Commons. Substantially, the position I take is this.

I say that the reference to the Committee on Privileges and Elections, asked for by this motion, will be absolutely of no avail, because we are now in possession of all the facts that might be made available to us by the committee ; and being in possession of these facts, it is for this House to determine whether or not, in the first place, the writ of the 10th of November was a valid writ legally issued ; and, in the second place, whether, on the facts stated-and I think my hon. friend and myself have substantially stated in the same words the facts with reference to the returning officer-it would be justifiable for this House to take action with respect to him. After all, it must be borne in mind that the returning officer, if guilty of wrong-doing, is liable to be proceeded against under the Elections Act. and liable to be condemned in a very heavy penalty. Under these circumstances, I submit that there is nothing further to be inquired into, that there is no possible reference to the Committee on Privileges and Elections which can be of any avail, and that the House is now in possession of all the information it requires to enable it to come to a conclusion.

Topic:   SUPPLY-NIPISSING ELECTION.
Permalink
CON

George Oscar Alcorn

Conservative (1867-1942)

Mr. GEO. O. ALCORN (Prince Edward).

Mr. Speaker, I desire to offer a few observations on the motion made by the hon. member

for East Hastings (Mr. Northrup) with reference to the Nipissing election. The charge is, as I understand it, that the executive has no power by statute or prerogative to issue the second writ, which has been referred to by both the hon. gentlemen who have addressed the House. It appears to be admitted that they had no such power by statute ; and I submit, carrying the argument a little further than the hon. member for East Hastings has done, that considering the facts and circumstances which surrounded this case, even if the right to exercise the prerogative does exist, it was not proper for the government in this case to exercise it; because if we examine the antecedent facts and circumstances which preceded the issue of the second writ, it will be found, that it was the government themselves who created that condition of affairs, which they rely upon as creating the necessity for them to exercise the right of the prerogative in the issue of the second writ. In other words, I would put the case in this way-that it is not competent for the government to exercise that right, because the government would then be in a position of taking advantage of their own wrong ; and I think it is a sound principle of law that a man or a corporate body or a government cannot take advantage of their own wrong. If we examine the facts, we shall find that the report of council on which the order of the 26th of October was based, contains the foundation on which the government acted, apparently, in issuing the second writ. I am aw-are that it may be said that there is no necessary connection between the report of council on the order in council, and the issue of the second writ. But, I submit that that is not a fair view of the case. I think this House is justified in investigating, and the country will require that we should investigate, the entire facts and circumstances which preceded the issue of that writ, and on which the government must have relied for their legal excuse for issuing it. Either that order in council must have been and must now be relied upon as the foundation for exercising the prerogative right, or the government must take the other horn of the dilemma, that they were prepared to fix the date of the election, and in fact did fix the date of the election, at a time when they must have known that it was impossible for the lists in the unorganized territory in Ontario to be ready. So that, in either case, I submit, their action was unjustified. Looking at the first ground, I may premise that the office of a returning officer is a semi-judicial office. He is not in any sense the agent or servant of the administration which appoints him. He is largely in the position of a judge crying- a ease. His duties are minutely laid down in the various statutes, and he is bound to guide himself, in the exercise of his office, by the best construction which he or his counsel may be able to place upon those

statutes. X am aware, of my own knowledge, that the late Conservative administration absolutely refused to advise or direct returning officers, acting under writs issued, as to the course they should pursue when difficulties presented themselves. I know that applications for advice or direction were made and were met with point blank refusal, the Conservative government holding that a returning officer is a semi-judicial officer, and must be guided by the statute law and the precedents which have grown up from time to time. But the course pursued by this government was entirely the opposite. From the time of the first visit of the returning officer to Ottawa, to which the hon. member for Bast Hastings (Mr. Northrup) has referred, on the 15th November, from that time forward the course of dealings between this administration and the returning officer was that of an agent or servant and his master throughout the entire transaction.

On the 15th October the returning officer came to Ottawa and consulted the Secretary of State with regard to what lists he should use. But the statues are explicit on that point, and I submit that no advice or direction should have been given him by the Secretary of State. The Franchise Act, section 5, subsection (c), lays down what lists shall be used, and provides that they shall be the lists which were then in force or which were last in force iu the electoral district to which the writ applied. Clearly in the district of Nipissing, even in the unorganized territory, there was a last list in force, and that was the list of 1898. The answer given by the Secretary of State on the 15th October was that the list of 1898 should be used. The returning officer went home and apparently intended to proceed upon that advice. But it is clear, in the light of the subsequent facts, that this administration, becoming particularly seized of the situation in Nipissing, conceived the plan, whicli'they eventually carried out, of stealing a seat from the opposition. It was well known that Mr. Kloclc had held that seat by a very large majority in previous elections, and that, in the ordinary course of events, he would again succeed on the 7th November ; but by postponing the election and bringing it on as a byelection, the administration would then be enabled to put their whole force and power into that fight, and have a far better chance of gaining the seat. That was the plan which they made known to the returning officer on October 15, and which they applied themselves to carry out. As proof that the administration, throughout this transaction, dealt with the returning officer as their servant and agent by whom they hoped to manipulate this contest, let me point to a telegram of October 26 :

_ You have been authorized to use the voters' lists of 1900, already prepared or in course of preparation, in unorganized districts of Nipis-Mr. ALCORN.

sing. Official letter goes up to-night. Notify all parties interested. This will supersede lists of 1899, where more recent ones have been prepared.

(Sgd.) R. W. SCOTT. There we have the plainest possible evidence that the administration were dealing with this semi-judicial officer, who should have been guided entirely by the statute, as their servant for the accomplishment of the object they had in view. Then we find this returning officer again making a visit to Ottawa and having an interview with the Secretary of State, and on that occasion he was accompanied by the government candidate, as appears by the evidence in the trial of the election petition. Surely that was a most extraordinary proceeding. The officer of the law, who should have been guided by the statute alone, considers it consistent with propriety to not only seek the advice of the government- which he had no right to do-but to bring with him to an Interview with the Secretary of State, the candidate of the government. During the trial of that election petition, we had the admission of the solicitor for the returning officer, which admission was made in these words :

The solicitor for the returning officer admits that the returning officer made the special return to the first writ on order received from the Clerk of the Crown in Chancery, in which same communication was also contained a second writ of election.

That order was in the form of a telegram dated the 10th November, as follows :-

Return election writ, endorsing on it reasons for omission to hold election. New writ goes up to-day, dated 10th November. On this information you can proceed to post proclamation. Nothing could be more explicit as showing the relations between the government and this officer. I understood the hon. the Solicitor General (Mr. Fitzpatrick) to say that the necessity for the issue of the second writ arose through the act of the returning officer. I hold that this telegram and the admission of the solicitor are the very best possible evidence that the necessity for the issue of the second writ did not arise from any act of the returning officer, but from the act of the government themselves in sending this telegram, in accordance with which that return was made. I say that the plan formulated by the government, consequent upon the visit of the returning officer on October 15, is clearly proved and appears in the order In council to which reference has been made, an extract from which I would like to read :

On a report dated 25t,h October, 1900, from the Secretary of State,, stating that the Ontario Act 62 Vic. (2), chap. 4, Intituled ' An Act respecting Voters' Lists in Unorganized Territories,' provides (1) that Part III. of the Ontario Voters' List Act is suspended for two years from the passing of the Act unless when otherwise ordered by the Lieutenant-Governor in Council, and (2) that until a new voters' list has been pre-

pared for unorganized territories under the said Part III. or under any other enactment of the legislature of the province, the voters' lists prepared and certified under the said Part III. in the year 1898, shall in any election to the legislative assembly be the lawful voters' lists for the polling subdivision for which such lists are applicable.

Now, the argumentative part of the report proceeds :

Topic:   SUPPLY-NIPISSING ELECTION.
Permalink
?

Part III.

of the Ontario Voters' Lists Act, here referred to, is that part of the Act which provides for the preparation annually of voters' lists for the unorganized territories where there are no assessment rolls, and under it the voters' lists would normally be prepared at regular intervals within the meaning of section 9 of the Franchise Act, 1898. During the two years suspension of Part III., the law of the province does not make provision for the preparation of these lists at regular intervals, but (in the words of section 9 of the Franchise Act), only ' at such times as are fixed by the Lieutenant Governor in Council,' and as the lists prepared and certified in 1898 are more than a year old, it becomes necessary for Your Excellency in Council to take the action prescribed by section 9 aforesaid for the preparation of new lists for the territory for which Part III. applies, for the purposes of a general election about to be held.

Now, the Act referred to in that order in council is there properly epitomized. It is chapter 4 of the Ontario Act of 1898, and it simply suspends the operation of Part 3 of the Ontario Voters' List Act, which is that part dealing with the making of lists in unorganized territory, and providing, by the second section, that until new lists for such territories are made the lists for 1898 shall he the lists for electoral purposes. Now, by the Dominion Franchise Act of 1898, as hon. members are aware, it is provided that the Dominion adoptts the provincial franchise for all purposes. Therefore, as to the unorganized territories, the provincial franchise is adopted, and the Act 62 Victoria would apply, and, until new lits are made, the lists of 1898 would be the proper lists. Then, having reference to section 9 of the Franchise Act, I would like to call the attention of the House to its provisions :

Where under the laws of a province the voters' lists for any provincial electoral district or division or any of them are prepared not at regular intervals, but at such times as are fixed by the Lieutenant Governor in Council or some other provincial or local authority, or only from time to time for the purpose of a general or other election in immediate contemplation, the last preceding voters' lists, so prepared shall be used for the purpose of any Dominion election in the territory comprised in such provincial electoral district or division or the parts thereof for use in which they were prepared, if such lists have been prepared not more than one year before the date of the writ for such Dominion election.

Now, it is perfectly evident that the argument made in the report upon which the order in council of October 26 is based, is that section 9 of the Franchise Act applies to the making of the lists in unorganized territory in Ontario. But

I submit, Sir, that whatever may have been the intention in framing that section, its terms do not effect that object ; and I think section 9 applies only to the making of the manhood franchise voters' lists, which, under a recent enactment in Ontario, are made in the cities and county towns of that province. If I am correct in that view, section 9 has only the meaning and application I submit it has, and if it does not apply to the making of the lists in unorganized districts, I submit that the entire fabric built up by the government with regard to this election, falls to the ground, and with it the return of the gentleman who now holds the seat for the district of Nipissing. There are a number of reasons which suggest themselves in support of the proposition which I have made. Referring to the order in council itself, it speaks of the lists to be made ' at such times as are to be fixed by the Lieutenant Governor in council,' and says that the Governor General has a right to go on and prepare lists in cases in which the Lieutenant Governor of Ontario is called upon by the law there, to fix a time for making the lists. Thus, it must he inferred that the Lieutenant Governor in council is the officer who would call the lists in unorganized districts in Ontario into existence, and therefore we must assume that we would find, when we refer to Part 3 of the Voters' List Act, that it contains such a provision. But if hon. gentlemen will refer to that portion of the statute, they will find that such is not the case-that the Lieutenant Governor in Ontario is not concerned with the making of the lists in unorganized territories, which are made annually in the month of June by the sheriff or police magistrate of the county in which they lie. Therefore, one of the grounds laid by the order in council- that section 9 of the Dominion Franchise Act refers to cases in which the Lieutenant Governor in council in Ontario fixes the time for making the lists-fails. And that fact I cite as corroborative of and leading up to the conclusion that I ask this House to draw-that section 9 of the Dominion Franchise Act does not deal with the making of the lists in unorganized territories, but only with the manhood franchise lists. Then, it is apparent, from several portions of the [DOT] order in council in question, that the government did not expect as a matter of fact, that the new lists would be complete in the unorganized districts even for use at the time fixed by the second writ for holding the election in the riding. They were prepared, as the report of council shows, to not only go on and hold the election in the absence, or probable absence, of the lists or portions of lists relative to that constituency, hut they were prepared to override the provisions of the electoral laws of Ontario as to the preparation of those lists by way of shortening the time and otherwise. And, therefore, we find that the tele-

gram to which I have referred, the telegram of the 20th of October, referring to the sending of the second writ, concludes with this sentence : ' This will supersede lists for 1899, where more recent ones have been prepared '-the inference being that where more recent lists have not been prepared, you may use the lists which are in existence, independent of the lists which will come into existence in 1900. Then, referring to the order in council, we find this expression used :

In consequence, however, of the limited time available for the work

That is for making new lists for 1900 in the unorganized territory.

-it is not possible that the delays provided for by Part III.

That is the Ontario Franchise Act.

-should be observed in connection with the preparation and revision of the new lists.

As I have said, the government were not only prepared to go on without the preparation of new lists, but they were prepared to go on contrary to the provision of the Ontario statutes with regard to the preparation of these lists. The report concludes :

The minister is of opinion that the work so far done under provincial direction may properly be adopted for the purpose of the coming election, and he so recommends that Your Excellency should intimate to all concerned that, under the circumstances, only ten more days' notice for the hearing of such appeals is to be required.

That is in line with the observation that I have just now made, that the government were careless whether the election law was observed or not so long as they secured the postponement of the election to a subsequent date. Then I submit, when we come to examine the phraseology of section 9 of the Franchise Act, it contains in itself evidence of the truth of the contention which I raise, namely, that it points to the franchise lists solely, and not to the lists in the unorganized territories. The lists in the unorganized territories are made, as 1 stated, at regular intervals, therefore they do not fall under the classification first adverted to in section 9, of cases in which the lists, or any of them, are prepared, not at regular intervals, but at such times as may be fixed by the Lieutenant Governor in Council. I have already pointed out that the Lieutenant Governor in Council is not concerned in the preparation of the lists in unorganized territories, nor do the lists in unorganized territoires fall under the second class,-the only remaining class,-of cases referred to in section 9, namely, ' lists which are prepared only from time to time for the purpose of a general or other election.' These words eminently and aptly do apply to the case of the perpetration of the manhood franchise lists, because they are ' prepared from time to time in immediate contemplation of an election about to be held,' but they Mr. ALCORN.

do not refer to the preparation of an annual list in the unorganized districts. Therefore, Mr. Speaker, I submit that the argument that 1 have laid down is well founded upon the language of section 9 itself,-that these descriptive terms are entirely inapplicable,- the preparation of lists in the unorganized districts, and they are directly applicable to the making of the manhood franchise lists. Then, Sir, we find that the Dominion Franchise Act containing this section 9 was assented to on the 13th of June, 1898, while the Act 02 Vic., which the order in council relies upon as doing away with the existence of lists in the unorganized territory, and therefore authorizing the Governor in Council to make new lists in those territories and so leading up to the necessity of issuing a new writ and holding by-elections -that Act was not assented to until the 1st of April, 1899. Therefore, it follows that the exceptional case arising under the latter statute could not have been in contemplation when the former Act was passed.

But, Sir, if it be necessary to establish by the most direct testimony the correctness of this contention, I would refer the House to the words of the right hon. the premier, as reported in the ' Hansard ' of 1898, volume 2, page 5702. On that occasion section 9 of the Franchise Act was under discussion in Committee of the Whole; and I may state that the particular matter under consideration was a motion proposed by the hon. member for West Toronto (Mr. Clarke) asking that the period of one year as to the ave of the lists should be reduced to six months. Speaking to that motion, the right hon. gentleman said :

This amendment to section 0 is intended to apply to these constituencies in Ontario in which there is registration, and when there is registration this Bill provides that if the registration has taken place more than twelve months before the time for a Dominion election, then new lists will be prepared; if it be less than twelve months, then the old list will serve. That is the Bill such as it is framed now. I understood my hon. friend from West Toronto (Mr. Clarke) to ask that six months should be substituted for twelve months, and I was agreeable to that on the advice of my hon. friend the Solicitor General.

These two lion, gentlemen taking part in that discussion should be aware wbat was in their minds, and in the minds of the committee at that time, and whether I am correct in the contention which I have made that this section 9 lias the application which 1 submit it lias. But at all events, there is the express declaration of the right bon. Prime Minister upon which I submit we have a right to rely. It appears to me. Mr. Speaker, that the hon. the Secretary of State, upon my construction of the statute, was correct in the advice which he first tendered, though improperly, to the returning officer to use the lists of 1S98, and that he was incorrect in the statement of law which is spread out upon the face of the

report of council of the 25th of October,

With certain exceptions, of which Nipissing

and which it is plain was Drought into existence for the purpose of effecting the object to which I have referred. But there is another view of the ease which supports the contention that 1 have submitted, and it is that the executive themselves had power to fix the date of the election. They fixed the date when the nomination and election should take place, and it was a dereliction of duty on their part, and an evidence of gross carelessness-because they are charged with official knowledge of the Act 02 Vie., and of the results and effects of that Act taken in connection with their own Franchise Act-I say it is an instance of gross carelessness on their part to have made the writ returnable and to have fixed the day of nomination upon a date when, having regard to the Ontario Act, they [DOT]must have been well aware that the lists in the unorganized territory could not have been in existence and therefore could not have been used. I say also with regard to that, that the government are estopped by their own wrong in that respect from taking refuge in the exercise of the prerogative right to issue the second writ. I think this assertion is founded upon the well known principle of law, that no man can take advantage of his own wrong. If that is the case, then even though the prerogative right may exist, yet, as I have had the honour of pointing out, under the circumstances of this case and by virtue of the two contentions I have raised, the government had no right to protect themselves by that exercise of assumed prerogative right in this particular case.

I assume. Mr. Speaker, that it will not be contended that the government have any statutory power to postpone this election ; I assume also. Sir, notwithstanding the remarks of the lion. Solicitor General, that it will hardly be contended that the returning officer had any statutory, or any other, power to postpone this election. He could have had none but statutory power, and he had no statutory power to postpone it. The only two cases in which he could have the power to jiostpone are those laid down in the two sections adverted to by the bon. Solicitor General. I do not desire to detain the House with any lengthy references to the sections of the Act appertaining to that power, or to other matters in this election, but I would like to say that these powers governing the general conduct of the election, so far as the returning officer is concerned, are contained in sections 27 to 30, both inclusive, of the Election Act, in section 39 and in section 50. Let me state shortly the effect of these sections. By section 27 the Governor General, by his writ- it is personal in himself-fixes the day of nomination :

At every general election he shall fix one and the same day tor the nomination of candidates in all the electoral districtis not one.

The day so fixed by the Governor General shall be named in the writs of election.

By section 29, the returning officer, in certain constituencies, of which Nipissing is not one, fixes the day of nomination. Then, we have section 30, which allows the returning officer, under certain circumstances, therein detailed, and which do not affect the present case, to postpone the day of nomination. That section cannot be cited as any authority for the action of the returning officer in this' case. Then, the other case adverted to by the hon. Solicitor General is section 39, if the candidate dies, which, of course, is not applicable here. Then, we have section 50, to which I may call attention :

Except as hereinbefore provided, the day for holding the poll shall be the 7th day next after the expiration of the day fixed for the nomination of candidates

The exception being in the four constituencies in which the nomination is to be fixed by the returning officer.

These, then, are the statutory provisions and it cannot be*fcontended, nor, I think, will it be contended, that either the returning officer or the executive can derive from these sections of the statute, or from any other statutory source, any power to take the action which was taken here, of postponing the election and holding a by-election under the writ of the 10th of November.

Then, Sir, upon the other portion of the motion, I would like to call attention to the strongly partisan action of the returning officer in regard to this case. I have adverted to the circumstance, that he brought with him the government candidate to Ottawa on the occasion of his visit on the 15tii of October, shortly preceding the time of nomination. We find by the evidence at the trial which I have referred to, that on the 27th, the returning officer wrote to the government candidate advising him that he was authorized by the government to use the lists of 1900. Now, there could be only one conclusion drawn by the government candidate from the communication of such a fact, and that was that it was the intention of the government to postpone the election, because, otherwise, it would be perfectly evident that the lists of 1900 could not possibly be used. I submit that this was a most improper action. Then, we have the fact also appearing from the evidence, that Mr. Klock, and his financial agent, Mr. McNamara, made repeated applications to this officer to be shown a copy of the order in council which he asserted he had in his possession. As often they were refused. All the information which the returning officer vouchsafed to Mr. Klock, or to Mr. McNamara. was the exhibition of a copy of an alleged letter which that officer said he had written to the Secretary of State, asking .which lists he was to-use. Manifestly that

[DOT]conveyed no information, because tbe letter might not have been answered, and that officer should have done, in regard to Mr. Klock and Mr. McNamara, what he has been shown to have been done in the case of the government candidate, namely, be should have shown him the order in council, and the other communications which he had from the government. There is the further fact that no notification of the intended postponement of the nomination on the 31st of October was made until the day preceding that postponement. Surely, in a matter of such importance, in a matter involving the interests which were involved in that nomination, as soon as the government came to the conclusion to advise their officer, because they treated him as an officer, of the intended postponement, an official announcement of that decision should have been made. But, we find again from the evidence, that the only notice given was on the day preceding the nomination, and that consisted merely of a written notice posted up in the office of the sheriff of the district. Then, as lias been referred to, both the returning officer and his clerk-and the evidence shows that the alerk acted under the order of the returning officer-were hidden during the entire day fixed for the nomination and the succeeding night, so as to make it an absolute impossibility that a legal nomination of candidates could be held upon that day. The evidence furthef shows that Mr. Klock was in attendance with his financial agent at the proper time and place, pursuant to the notice contained in the proclamation, that he then and there deposited his nomination paper and the proper sum of money. It further appears that the returning officer, although hidden in his residence, as he admits, together with his election clerk, was informed by the deputy sheriff that the nomination paper and deposit had been produced by Mr. McNamara, and left in his office. He says that being so informed, he after dark visited his office and nailed up the windows, thereby evincing the fact that be had qualms of conscience consequent upon being officially entrusted with the nomination paper and money. Although he states that he would refrain from touching the money or the paper, he evidently considered himself responsible for their safe-keeping, and took the step which 1 have pointed out. The returning officer purposely refrained from communicating to Mr. Klock the fact that a postponement of the nomination was intended. That fact, it appears, was well knowm amongst other gentlemen resident in North Bay connected with the returning officer, because we have the evidence of a witness named Robinson, who, upon the trial of this election petition, swore that Mr. Peter Proulx. the deputy to the sheriff, who was also the returning officer, told him on the 27th. in North Bay, of this plan to be carried into effect, that the nomi-Mr.- ALCORN. *

* nation was to be postponed, that there would be a by-election, and that the Liberal can. didate would, in consequence, win. Mr. i Peter Proulx was in court, and was within ? hearing of the giving of that evidence, and 1 he was not called to contradict it. Then,

I Sir, as a most significant circumstance, we have the fact that this returning [DOT] officer, having been advised that it would be proper for him to obtain some apparently independent legal advice upon the question, applied to a legal gentleman in North Bay for such an opinion. Who was that gentleman ? He was a local officer of the Ontario government. He was the clerk of the peace and County Crown Attorney for that district, a gentleman who held his office by virtue of his ardour in supporting the Liberal cause. That gentleman strangely enough, by a letter dated the 27th of October, advised the returning officer that he could legally postpone the election; the letter was put on file at the trial of the petition. I would call the attention of the House to the fact that on the date of this letter, the 27tli of October, it is perfectly evident that the returning officer was on the train coming to Ottawa, because he admits that he arrived here on the morning of Sunday the 28th, and in that case the letter could not have been communicated to him until the 30th October, the very day before the nomination should have taken place. Before that date, it is perfectly apparent (from the fact that the order in council of the 25th of October had been communicated to the returning officer), that he was well aware of the intention of the government to postpone the election. I therefore submit that upon these two grounds, I am justified in saying that even though the government had the right to exercise in general this power of prerogative, yet under the particular circumstances of this case, it was illegal and improper and incompetent for this government to avail Itself of that power, if that power exists, which I do not admit. I may say, Mr. Speaker, that the facts disclosed in this case give another instance of the apparent practice under Liberal rule in this country to attempt to govern Canada by orders in council. The order in council of the 25th of October is the foundation upon which the issue of the second writ was based by the government. We have recent cases similar to this. In the face of the existence of a standing order in council that no minister shall expend more than $5,000 of the public money without the sanction of parliament, we have had brought down to this House as completed transactions, the Yukon deal, the Drummond County deal, and only yesterday the Clergue transaction, all of which involved the expenditure of enormous sums of the public money, and all of which were based on orders in council. In this very transaction before tbe House, we have the

government even going further than that, because by this order in council they have created lists of voters for use in this election contrary to the machinery provided by their own Franchise Act. They seem to have been quite indifferent as to whether their own Franchise Act was really observed or not. We have had a most striking instance of this kind of Liberal rule recently oh the part of the Ontario government. The right lion, the Prime Minister has referred to the government of Ontario as his strong right arm, and that strong right arm at a recent session of the legislature assumed to pass a law unheard of before, by which they sought to set aside the sacred constitution of this country, so as to prolong the life of the legislature and incidentally the life of the government. Such practices as we are now discussing, and which are entirely contrary to our constitution, merit the condemnation of this House. The passage of this order in council in the Nippising case was an attempt to lay out a plan by which the majority of the government in this House would be increased, and such being the case, it should not be approved of. I submit, Sir, that for the sake of preserving inviolate the laws of this 'country and the free exercise of the franchise by our people, the motion of the hon. gentleman (Mr. Northrup) should be adopted by this House.

Topic:   SUPPLY-NIPISSING ELECTION.
Permalink
LIB

Charles Marcil

Liberal

Mr. OHAS. MARCIL (Bonaventure).

I have not the necessary qualification to discuss this question from a legal point of view, but I shall call the attention of the House to a precedent which occurred in the county of Huntingdon under the good old Conservative regime of ten years ago. The general elections occurred on the 5th of March, 1891, and the good people of Huntingdon who had stood by Mr. Scriver, who represented that county for thirty years in this House, awoke one fine morning to learn that the election would not take place in that county on the same day as in all the other counties of the Dominion. We never knew exactly the reason why that election was delayed. We were told that it was on account of the illness of the returning officer who refused to act, but for one reason or other the election in Huntingdon was postponed for a fortnight, and a very strong suspicion existed that the postponement was an attempt to defeat Mr. Scriver by hook or crook, as they knew they could not defeat him in a general election. However, Mr. Scriver did not do as Mr. Klock did in Nipissing, but fifteen days after the Conservatives had been sustained in power he went to the polls like a man, and in spite of the united efforts of the Conservative party, led by the late Mr. Chaoleau and by Sir Charles Hibbert Tupper. Mr. Scriver was elected for Huntingdon by over 300 majority. In the Huntingdon case a second returning officer had been appointed. The Huntingdon case, I believe, has a bearing

on the present case, and it shows at all events that there are precedents for delaying an election. I remember very well that election in Huntingdon, and I would remind my hon. friend from East Simcoe (Mr. Bennett) that I, with other Liberals, had the pleasure on nomination day to speak for one of the noble thirteen who was elected by a great majority on that occasion.

Topic:   SUPPLY-NIPISSING ELECTION.
Permalink
CON

Frederick Debartzch Monk

Conservative (1867-1942)

Mr. F. D. MONK (Jacques Cartier).

This question has been very fully dealt with, and I do not feel disposed to take up unnecessarily the time of the House. Nevertheless, I believe it to be my duty to state the principle ground on which I support the present motion. Let me say at once that the hon. member for Bonaventure (Mr. Marcil) has not touched upon what I consider to be a very important point in this question. 1'he Huntingdon case does not stand on all fours with the present one. In the Huntingdon case, the hon. gentleman will not contend that the Crown exercised the prerogative of recalling the writ for the election, and issuing a new one. It was the returning officer, who, under a different law from that in force at present, took upon himself to postpone the election. That makes a very essential difference between that case and the present one. Those who listened to this discussion will bear me out when I say that they with me must have reflected that at the beginning of this century we have indeed immense guarantees of liberty, when, with a question of such vast importance as this brought before the House, there are so few members- at any rate on the other side-who pay any attention to it whatever.

Topic:   SUPPLY-NIPISSING ELECTION.
Permalink
LIB
CON

Frederick Debartzch Monk

Conservative (1867-1942)

Mr. MONK.

To my mind it applies to any one who was not prepared to listen to an argumeut which, I agree with the Solicitor General, was most interesting. For my own part, I rest my reason for voting for this motion on the ground that the precedent set by the government in this case is clearly an invasion of the privileges of this House. By recalling the first writ and issuing the second one, the government have made a step backward, and have invaded the privileges of this House which it took so many years in England to obtain and consecrate. The hon. member for East Hastings, and the hon. gentleman who spoke last, alluded to the prerogative of the Crown. Those who have studied constitutional history know that for centuries in England the Crown retained, in addition! to the prerogative of calling parliament, proroguing parliament, and dissolving parliament, very often at its own caprice, the prerogative of withholding writs, recalling writs, changing writs, and creating new constituencies. That is no news to hon. members who have studied constitutional history. I regret to say that I have not had time to give this matter sufficient attention in that connec-

tion ; but anybody who takes the trouble to look into Stubbs' Constitutional History of England, will find numberless instances of these things, and the efforts made during more than three centuries by the Commons of England to obtain absolute control of the time and manner in which elections to parliament should be held. Any one who looks into the work of Count Franque-ville, who went to England and spent considerable time there, and wrote three admirable volumes on the British constitution, will find in the second volume, I think, whole sets of the instances in which the Commons of England have vindicated the very right which to my mind has been invaded in this case. If lion, members will turn to the law on this point-I do not wish to read the sections, because that has been done already-and examine the sections relating to the issue of the writ, sections 27, 28, 29 and 30, they will find In the very wording of those sections, that the intention of the Commons is clearly to withhold from the Crown the right to issue the writ on which an election is held except in a clearly specified case. The reason is that that very right, which the government has arrogated to itself in this case, has been so often abused in the past. Let the House consider how far we shall be taken if we admit this right in this instance, and the extent to which it might operate in some other case, even against lion, gentlemen opposite. Is it not easy to suppose a number of circumstances in which the Crown might avail itself of the right to recall a writ and issue a new one ? Suppose the case of the total destruction of the lists and no list being available, and the Crown having the right to recall the writ, and that right being consecrated by this House, how long could the Crown withhold the issue of the second writ ? Suppose the returning officer had left the country, or bad died- these cases are not provided for by the statute-would the Crown have the right to recall the writ, and how long would it have the right to withhold it ? The principle is. to my mind, a most grave and serious one ; and the moment we allow the slightest latitude to the Crown outside ,of the strict words of the statute, we open the door to immense abuses-abuses which it has taken centuries to correct in England. That is the ground on which I for my part feel disposed to refer this case to the Committee on Privileges and Elections.

Now, there is more than that important principle, which we should be so jealous of, that, even if the facts were not as strong as they are in this case, the moment a member alleges facts which would lead us to suppose that any of our privileges had been Invaded, we should be ready to refer the matter to a committee, which in this ease is not hostile to the present government. There is more than that : there is the conduct of the returning officer. The return-

Topic:   SUPPLY-NIPISSING ELECTION.
Permalink

April 24, 1901