April 24, 1901

LIB

Thomas Osborne Davis

Liberal

Mr. DAVIS.

The hon. gentleman practically said it. I have nothing against the Canadian Pacific Railway, but the settlers in the west have been suffering for years. The hon. gentleman says that this road was built for our benefit. But, we know it was built for the purpose of connecting British Columbia with this country in order to carry out the terms of confederation, and a great portion of our land was handed over to this company and exempted from taxation. Its terminals, rolling stock, &c., are exempt for ever from taxation, and by this very wise contract made with them, they are permitted to tax us just as much as they please in the way of railway freight. They charge us three times more than they have the right to do, and because we get up and protest, we are told that we are traducing this company. I do not look at it in that way at all. We are only doing our duty to the people in pointing out these discriminations and overcharges in connection with freight rates, and in showing that they charge twice as much west of Lake Superior as they do east.

Topic:   SUPPLY-NIPISSING ELECTION.
Subtopic:   CANADIAN PACIFIC RAILWAY COMPANY.
Permalink
?

The MINISTER OF PUBLIC WORKS.

The Canadian Pacific Railway are charging less freight than their American rivals are doing in the corresponding territory. I state that here, and it is true.

Topic:   SUPPLY-NIPISSING ELECTION.
Subtopic:   CANADIAN PACIFIC RAILWAY COMPANY.
Permalink
LIB

Thomas Osborne Davis

Liberal

Sir. DAVIS.

I have pointed out that they are charging double what they are doing in the States of the Union. There may he certain places where they are charging more, but if they are doing wrong in the United States, that is no reason why they should

3G98

do wrong in this country. They are discriminating against the people of the west, and surely we can raise our voices in protest without being accused of traducing this great company,- which has conferred such wonderful benefits on the people-this company which got $110,000,000 in cold cash and land for constructing a road not worth more than $92,000,000, which got more than the whole road was worth to build it, and got besides a free hand to tax the people of the west to its heart's content. It is easy to build up great corporations by such generous gifts. I am not blaming the government for that contract. My hon. friends opposite may console themselves with the fact that if the bargain was a bad one, it is their party which is responsible.

Progress reported.

Topic:   SUPPLY-NIPISSING ELECTION.
Subtopic:   CANADIAN PACIFIC RAILWAY COMPANY.
Permalink

CONSIDERED IN COMMITTEE-THIRD READING.


Bill (No. 22) respecting the Columbia and Western Railway Company.-Mr. Morrison. Bill (No. 87) to amalgamate the Northern Pacific and Manitoba Railway Company, the Winnipeg Transfer Railway Company (Limited), the Portage and North-western Railway Company and the Waskada and North-eastern Railway Company, under the name of the Manitoba Railway Company.- Mr. McCreary. Bill (No. 73) respecting the Vancouver, Westminster. Northern and Yukon Railway Company.-Mr. Morrison.


SIMILKAMEEN AND KEREMEGS RAILWAY COMPANY.


House in committee on Bill (No. 39) to incorporate the Similkameen and Keremeos Railway Company.-Mr. Galliher.


CON

Thomas Simpson Sproule

Conservative (1867-1942)

Mr. SPROULE.

I think it a great pity they have not selected a somewhat easier and more euphonious name, for I do not see how people are going to pronounce this.

Bill reported, read the third time, and passed.

Topic:   SUPPLY-NIPISSING ELECTION.
Subtopic:   SIMILKAMEEN AND KEREMEGS RAILWAY COMPANY.
Permalink

SUPPLY-THE NIPISSING ELECTION.


House resumed debate on motion of the Minister of Finance (Hon. Mr. Fielding) that the Speaker do now leave the Chair.


CON

Samuel Barker

Conservative (1867-1942)

Mr. SAMUEL BARKER (Hamilton).

I listened with much interest and attention to the speech of the hon. member for North Simcoe (Mr. McCarthy) just before six o'clock. The hon. gentleman entered into several questions that have been so fully debated by previous speakers that I do not intend to occupy the time of the House in following him in regard to them. But the legal aspect of the question which was presented by that hon. gentleman, can, I think, be answered in a very few words. The hon. gentleman, with a great deal of confidence, asserted that parliament had

divested itself of jurisdiction over such questions as we have been dealing with, and he made that assertion with a vehemence and a defiance of contradiction that seem rather surprising on the part of a legal gentleman when dealing with subjects so very grave. The Solicitor General has the misfortune, evidently,- to differ from that hon. gentleman. The Solicitor General tells us that the House has not divested itself of the right to deal with this question, but the hon. member for Simcoe says it has. After repeating again and again that the House had divested itself of this jurisdiction, the hon. gentleman, however, went on to say that the House still reserved the right to deal with the subject. I confess that I do not quite understand what the hon. gentleman means. If the House has divested itself of the right to deal with a particular question, I fail to understand how it can reserve to itself the right to deal with it. I think I will have to leave the hon. gentleman to answer himself on that point, and to settle with the Solicitor General any little difference of opinion that may exist between them. Then he goes on to point out that the whole question is in a nutshell ; the whole question he says is this : Was the second writ that was issued valid or was it not? Now, Sir, on this point, so far, I entirely agree with the hon. gentleman. There can be no doubt that this House has a right to inquire into the conduct of a returning officer as an official of the government ; but such an enquiry would not, I think, cover the main subject which we are called upon to consider this evening. The principal question, the matter in the nutshell, is, has this House the right to inquire into the validity of the second writ ? The hon. gentleman was very confident on that point, as he was upon the other. He defied hon. gentlemen on this side to say that he was not correct in asserting that under section 5 of the statute, which he read, the courts of the land have the power to deal with the question whether that writ was valid or not. The hon. gentleman read that section of the statute two or three times, and defied anybody to say that there could be any doubt but that the courts of the land had jurisdiction to deal with this question, the power to remedy a wrong if any has been done. He was so very confident that I would have hesitated to express my own opinion in contradiction to his ; but I will take the liberty of reading a few words written by a gentleman, for whose opinion, I think, the member for North Simcoe will have some respect; I shall read a few words from the judgment of the Chancellor of Ontario, who gave the formal judgment of the court of trial judges in this Nipissing case. The Chancellor expresses in a very few words the judgment of the court upon this very point concerning which the hon. member for North Simcoe was so very confident. The Chancellor says :

It does not form part of our duty under the statute to investigate or pronounce upon the constitutional right of the executive to direct the issue of a new writ in the circumstances of this case. That is a matter, not for the election judges, but for the House of Commons, to whom the ministers are responsible, if there was not plenary power and prerogative in the Governor General to act summarily upon the return to the first writ.

I do not think I need say anything more to my learned friend from North Simcoe (Mr. McCarthy) on that point. The fact that the hon. gentleman happens to differ not only from the hon. Solicitor General, hut from one of the ablest judges in this Dominion, conveys to this House, I think, a subject for consideration far beyond the mere question whether he was right or wrong. The hon. Solicitor General says : We have all the facts before us, and we can decide the question here. What does the hon. member for North Simcoe say to that now ? What does this hon. gentleman who has so rashly given his opinion here, who has given judgment upon this question without very much consideration, what does he say to taking a catch vote in the House without further enquiry ? Does the hon. gentleman think that this question should not be referred to the Committee on Privileges and Elections so that all the precedents can be looked into and the whole question fully and calmly considered, not in a debate of this House, but by a committee tthich' would take the trouble and care to look into the subject from every point of view ? Surely the hon. gentleman, when he has found out how rash he has been in the opinion he delivered before six o'clock, will now agree with us that this is a subject which ought to be referred to a committee and that it should receive, at the hands of such a committee, most careful consideration. The hon. gentleman, X am sure, will vote with its. He cannot do otherwise. There are a large number of laymen in this House. These hon. gentlemen are called upon to decide a very serious and grave question. They have heard legal gentlemen standing up and expressing these opinions on this subject and differing in these opinions. We have heard a legal gentleman standing up and In the most optimistic manner declaring that there is no question about the law upon this subject, and yet that gentleman's opinion Is opposed to the solemn judgment of one of the highest courts in the land. Are hon. gentlemen who are not of the legal profession, but who want honestly to deal wTith this question, prepared at a moment's notice to pronounce upon this subject ? The hon. member for Jacques Cartier (Mr. Monk) has pointed out, in words which I think hon. gentlemen cannot dissent from, the very grave character of the question before the House. It is not merely a question affecting one of the members of this House. It is not a question

Topic:   SUPPLY-THE NIPISSING ELECTION.
Permalink
CON

Samuel Barker

Conservative (1867-1942)

Mr. BARKER.

whether Mr. McCool is or is not entitled to sit in this House ; it is a question affecting the rights and privileges of parliament and of the people of Canada. It is a question whether the government of the day can issue a writ and hold an election for one member in a particular constituency outside of the general provisions of the statute law. It is also a question whether, on some future occasion, a government, having a narrow majority and knowing a dozen or more doubtful constituencies, could withdraw writs or not issue writs, and later on, hold by-elections, and so control the country improperly. What may happen on one side may later on happen on the other, and hon. gentlemen should deal with the question, not as affecting a seat here, but as a question affecting the whole future of parliament, and they should not rashly deal with it in the inconsiderate way in which the hon. member for North Simcoe has done. There is a committee especially appointed for the purpose, the Committee on Privileges and Elections, and if ever there was a case that should be sent to the committee, then, surely, it is this one. Hon. gentlemen seem to think that we have divested ourselves of the right to interfere in such matters. That committee is appointed year after year for the purpose of dealing with such questions and when one of this kind comes up and we have legal gentlemen on the opposite side of the House differing in opinion, when we have one of these legal gentlemen differing from the judgment of one of the highest courts of the land, then, I say, instead of submitting the decision to a catch vote of parliament, the whole matter should be referred to the Committee on Privileges and Elections, so that the precedents may be brought before them and the question, after careful investigation, submitted to this House for consideration and a proper vote on so momentous a subject.

Topic:   SUPPLY-THE NIPISSING ELECTION.
Permalink
CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN (Halifax).

Mr. Speaker, I think that the question which has been brought before the House by my hon. friend from Hastings (Mr. Northrup), is oue which deserves a little more consideration at the hands of the government than has been given to it. In the first plaee, It is not a political question at all, properly viewed. It is a question entirely as to the relations which should exist between the House of Commons and the executive of this country. It is a question as to whether or not the powers which properly belong to the House of Commons have ben usurped by the executive. I assume that the right hon. gentleman who leads the government (Sir Wilfrid Enurier) will not deny that a question of that kind is deserving of fair treatment and of fair consideration at the hands of this House. Arguments have been made against referring a question of this kind to the Committee on Privileges and Elections. In the

first place the lion. Solicitor General (Mr. Fitzpatrick) says that we have all the facts now before the House. Surely the hon. gentleman, if he were in his place now, would not pretend for a moment that matters of this kind should not be referred to the Committee on Privileges and Elections for the very purpose of considering what the privileges and powers of parliament are on the one hand and what the privileges and powers of the executive are on the other hand. In the case of the Queen's, N.B., election which has been referred to in this House, a motion was made toy an hon. member belonging to the party which now occupy the Treasury benches that a certain return to the writ of election should be amended by this House without any reference to the Privileges and Elections Committee, and it was moved in amendment by the late Sir John Thompson, who then led the government, that the matter should not be dealt with in that manner but that the return to the writ should be referred to the Committee on Privileges and Elections for the very purpose for which my hon. friend from Hastings has asked that this question shall be referred. I may say to my hon. friend from North Simcoe (Mr. McCarthy) that a very eminent lawyer in this House, for whose opinions he lias a great deal of regard and an hon. gentleman for whose opinions all of us have a great deal of regard, the late Dalton McCarthy, supported that motion. That gentleman was a member of that committee ; he thought it was a proper question to be referred to the Committee on Privileges and Elections, and further than that he formed one of a sub-committee to which was referred the task of investigating precedents in regard to that particular question and reporting upon them to the main committee. I have before me the proceedings of the committee and the proceedings of, the subcommittee, and I find that the view which was taken by that eminent gentleman, to whom 1 have referred, is in exact contrast to the view which has been presented by the hon. member for North Simcoe to-day. I am sure that if my hon. friend from North Simcoe had looked into the proceedings of that committee, he might have seen fit to modify the opinion which he has offered to the House with a great deal of confidence that this is not a proper question to be referred to the Committee on Privileges and Elections. This House is not in a position to deal with a matter of this kind as well as the professional men forming the Committee on Privileges and Elections would be able to do. The task which that sub-committee took upon themselves and which appears in this report which I have in unhand was a most important task and a task they very ably performed. I find, on looking at the proceedings of the committee, that the right hon. leader of the government was inclined at that time to assign to parliament, or the committee which had this

matter in hand, much greater latitude than has been suggested by my hon. friend the Solicitor General and by the hon. member for North Simcoe.

Topic:   SUPPLY-THE NIPISSING ELECTION.
Permalink
?

The PRIME MINISTER.

What case was that ? .

Topic:   SUPPLY-THE NIPISSING ELECTION.
Permalink
CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

That was the case from Queen's, N.B. I will point out to my right hon. friend what I mean. The hon. member for Simcoe (Mr. McCarthy) has stated with a great deal of positiveness that there is no question at all but that the courts of this country have the right to consider whether a writ of election was properly issued by the executive of this country, and to set it aside. If his argument means anything it means that. I would not have thought that the words of the statute could be construed to that extent, and I am inclined to think that if my hon. friend (Mr. McCarthy) gives that matter a little more consideration than he apparently has done so far, he may be inclined to arrive at the same conclusion. What I desire to point out to the right hon. gentleman is that when a matter admittedly within the jurisdiction of the courts came before this House, my right hon. friend was of the opinion that it might not only be dealt with by the House, but that it was the duty of the House to deal with it, although the time for dealing with it in the courts had passed by. It was not the opinion, I admit, of the majority of the House or of the majority of the committee, because that was so distinctly a matter within the cognizance of the courts under the Controverted Elections Act, that parliament said it should hold its hand because that case did out come within the class of cases in respect to which parliament should continue to act. The class of cases in respect to which parliament should continue to act is well known to gentlemen who have made matters of this kind a study. Parliament does not hold its hand where an improper person has been returned; parliament does not hold its hand where a person has been returned who has no right to sit in parliament, and it declares the seat vacant. But outside of that parliament does hold its hand in case the courts have been given jurisdiction. Now, have the courts been given jurisdiction in this case ? I have not seen any authority-and I will ask any gentleman on the other side of the House to submit any authority if he has it-I have not seen any authority which would show that the validity of a writ of election can be inquired into by the courts. The argument of the hon. gentleman from Simcoe (Mr. McCarthy) would lead to extraordinary results ; the Solicitor General did not go as far as he did. Suppose a writ has been issued under a resolution of the House of Commons, would my hon. friend from Simcoe say that the court should inquire as to whether that resolution had been really passed by the House of Commons ? Would die say that the courts should inquire as to whether Mr. Speaker had properly counted the votes ? Where would he stop ? Questions of that kind have not been submitted to the courts. What has been submitted to the courts, as declared by text writers, is this: The proceedings under a writ of election can be inquired into, but the validity of the exercise by the executive of its powers in that respect cannot be inquired into ; and so it has been declared by Mr. Chancellor Boyd. It is not only his opinion, but it is the opinion of Mr. Justice MacMahon, another eminent judge of that court, because the judgment referred to by my hon. friend from Hamilton (Mr. Barker) was the judgment not of one but of both. Even if we are to admit that the opinion of my hon. friend from Simcoe (Mr. McCarthy) is deserving of every respect-and I am sure I will give it every respect, because I know that hon. gentleman is eminent in his profession- nevertheless, if we have the text books on the other side; if we have the opinion- although it may be but the dictum-of two eminent judges of the courts of Ontario on the other side also, will my hon. friend from Simcoe say that with that difference of opinion between him on the one hand and those judges and text writers on the other hand, we should accept without question his opinion and not refer this matter to the tribunal which has been appointed by this House for the purpose of determining questions of that kind. I find in Todd's Parliamentary Government in England, page 354, this :

Except in the trial of election petitions questioning returns to writs of election

Not questioning writs of election, but questioning returns to writs of election.

-which are now tried by the judges under the Act of 1868, the House still retains its ancient jurisdiction to determine all questions affecting the seats of its members not arising out of controverted elections.

I think there can be no doubt that there is some question here which might properly be referred to some tribunal, and I know of no tribunal to which it can be referred except the Committee on Privileges and Elections, because the argument to the contrary must go to this extent: That the question as to the rights and privileges of the House of Commons on the one hand, and the rights of the executive on the other hand, must be determined not by this House which has always been jealous of its privileges in that respect, but by the courts of the country. Is there a single word in the Controverted Elections Act which says that this House has deprived itself of the right and the duty of inquiring whether its powers have been usurped by the executive o.f this country. If there is a word In the Controverted Elections Act which goes that far, I would be glad if some hon. gentle-Mr. BORDEN (Halifax).

man would point it out, because up to this I have not been able to find it in that statute.

There are other curious circumtances connected with this. As has been pointed out by my hon. friend from Hastings (Mr. Northrup), certain provisions have been enacted by parliament under which writs of election can be issued. My hon. friend (Mr. Northrup) has established, by his argument, a reasonable case for showing that except in these stated cases, parliament must direct the issue of the writ. At all events whether my hon. friend has made out a conclusive case for that or not, he has made out a reasonable case for inquiry. But there is a further point to which my hon. friend (Mr. Northrup) has not referred, and it is this: Under what authority did the executive government of this country see "fit to issue a new writ of election before the other writ was returned. On what principle are you to have two writs of election outstanding at the same time. This is what was done. A telegram was sent to the sheriff to return the writ on the 10th of November, and before that writ was returned, on that very 10th day of November, a new writ was issued and forwarded to the sheriff. I would like to know on what ground that can be justified. I would further like to know on what ground you can justify the fact that a new writ was issued, although the return to the writ was obviously a bad return, as has been established by | my friend from Hastings, and as lias not been contradicted by my hon. friend the Solicitor General or by my hon. friend from North Simcoe. These are proper questions for the consideration of the Committee on Privileges and Elections.

But, there is another matter which has been very lightly touched in this debate, either by the Solicitor General or by the hon. member (Mr. McCarthy), and that is the question of the conduct of the returning officer. In the Queen's, N.B., case, the conduct of the returning officer came in question, and how was it dealt with ? It was dealt with in this way: That the whole question was referred to the Committee on Privileges and Elections, which examined precedents and reported to this House upon these precedents. And having regard to these precedents, that committee reported to the House that the conduct of the returning officer should be inquired into, and that he should be summoned to the bar of the House. He was summoned to the bar of the House, and liis conduct was inquired into, and if I remember the facts rightly, he was censured. Now, in what respect has the returning officer in this case been guilty of misconduct ? I will touch ou that in one moment, but before doing so I would like to point out to the right liou. gentleman this : It was laid down in 1&S7 by eminent men in this House, and not contradicted by any one of the eminent lawyers who were

then members of this House, that with respect to the returning officer there are three courses that might be pursued-three forms in which yon might have a remedy against him for misconduct. In the first place, you might punish him criminally if his conduct came within the meaning of the criminal code; in the next place, you might sue him for the penalties and damages provided by the Election Act; and, in the third place, inasmuch as he is an officer of this House, you might call him to the bar of this House and inquire into his conduct and punish him as such.

Is there anything in the conduct of this particular officer which calls for inquiry by this House ? I think my right hon. friend, the leader of the government, will be disposed to conclude with me that there is ; because it is not alone a question of a seat in this House. The seat of Nipissing is immaterial to one side or the other side of this House, so far as political purposes are concerned. The government of the day holds a large majority in this House, and the possession of the seat of Nipissing is not the important question which this House has to consider. The important question is. what might be the possible result of conduct of this character on the part of a returning officer ? What was his conduct ? He deliberately absented himself on the 31st of October, 1900, for the purpose, as he admits, of preventing any nomination being made. My hon. friend the Solicitor General thinks that is a light matter. Is it a light matter ? Suppose this government or a succeeding government should bring on a general election, and some party heelers, with or without collusion or instigation on the part of the government, should go to the returning officers in a dozen doubtful constituencies, and prevail upon them, by bribery or otherwise, to absent themselves on nomination day, so that no nomination in those constituencies could be made. Hoes not my right hon. friend see the consequences which that might lead to ? Does he not think that the conduct of a returning officer pointing to results such as that should be inquired into ? My hon. friend the Solicitor General dealt with this point very airily ; he said you could fine him $500. What would be the sum of $500 in each of a dozen constituencies conqiared to a result which might be produced by the means I have referred to 7 But the returning officer was not content with absenting himself. I have his evidence here under my hand, and every statement I make I am prepared to substantiate by references to his own admissions under oath. He went to his election clerk and deliberately prevailed upon him to go into hiding. He took him into his own house, because there was a possibility that in hi's own absence a nomination might be made before the election clerk. So that, these two worthy gentlemen, by the admission of the returning officer, went into hiding

for the purpose of preventing a nomination being made on the 31st day of October. Is that not a matter worthy of being inquired into by this House 1 Is an officer of this House to be permitted, for no just purpose, so far as we can see, to deal with his duties under an election writ in that way ? If conduct of that kind is to be passed over by this House, is to be condoned by the government of the country refusing to submit it to an. inquiry by the Committee on Privileges and Elections, then, Sir, the consequences in the future may be more serious than hon. gentlemen on the other side of the House seem to imagine.

We have the returning officer's admission that he was guilty of other minor misconduct in this matter. What is the meaning of this gentleman going with the Iuberal candidate, Mr. McCool, to consult the Secretary of State in regard to this election ? What is the meaning of the fact that although he refused to show this order in council to Mr. Klock, he said he was perfectly willing to show it to Mr. McCool ? It is perfectly clear that from first to last he was in very close communication with Mr. McCool ; and it is also clear that from first to last he had the design, for some purpose or other, of preventing any nomination being made on the 31st day of October.

It may be said in reply-in fact, it was said by my hon. friend, the Solicitor General -that if a nomination had been made on the 31st day of October, it would have resulted in injustice. That is a rather curious remark to come from the law officer of the Crown, because if it means anything, it means that this returning officer is not to obey the mandate of the Governor General to him in a writ of election, but, forsooth, is to say : ' It would be just or unjust to do a particular thing, according ns I deem it right or wrong, and when I receive the mandate of the Governor General in a writ addressed to me, I am to judge whether it is .expedient for me to do or not to do my duty.'

But, Sir. there is even a stronger circumstance upon which I have heard no explanation from the other side of the House, and it is this. Why is it that this government, which -has seen fit to enact a Franchise Act containing certain provisions, to which I shall call attention, was derelict in its duty in not causing the lists to be prepared at the proper time ? My hon. friend the Solicitor General tells us that these lists were prepared in proper time for the election which was eventually held. If my hon. friend were in his place, I would like to ask him, under the statute which he himself framed and passed, eft what time have those lists to be ready when they are prepared under section 9 of the Franchise Act 1 [DOT] There is no particular provision in section 9 as to the date, and I do not know whether or not my hon. friend would say that you must construe section 9 with section 5, subsection

Topic:   SUPPLY-THE NIPISSING ELECTION.
Permalink
?

The PRIME MINISTER.

I have not the Information.

Topic:   SUPPLY-THE NIPISSING ELECTION.
Permalink
CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

The right hou. gentleman is not informed. Well, it seems to me that it would be desirable that the government of this country should be informed on that point; because, owing to the fact that the government has not been informed on that point, and owing to the fact that the member of this government who is charged with the duty of complying with section 0 has not performed his duty, the whole difficulty has arisen. Why were the lists which were required by section 0 to be prepared for the purposes of an election, why were they not ready for the election to be held in Nipissing Was this the

duty of the Secretary of State ? I assume, from the course which was taken by that hon. gentleman, from his connection with the preparation of these lists eventually, that it formed part of his duty in the administration to deal with matters of this kind. I suppose the Secretary of State was not so overburdened with duties that he was unable to attend to this ; but, at all events, we are entitled to know why this government saw lit to bring on a general election without taking proper steps under section 0 to have lists ready so that section 27 of the Election Act could be complied with. That section is very specific in its terms, and for good reasons, no doubt. It provides that the Governor General shall fix one and the same day for the nomination of candidates in all the electoral districts, except in certain ridings, of which Nipissing is not one. Section 9 of the Franchise Act of 189S provides that in every riding where lists are not ready under provincial legislation, it is the duty of this government to prepare the lists. WTe have not had a word, up to the present, to excuse the default of the government in that respect. If there had been no such default, there would have been none of this difficulty, the returning officer would not have been tempted to disregard his duty, and the election would have been held on the 7th of November in that district just as It was held in all the other constituencies.

I think we might well ask the right hon. gentleman who leads the House to tell us why this duty was neglected and these lists not prepared.

Under the circumstances which have been brought to our attention by my hon. friend from Hastings (Mr. Northrup), there seems to be no possible reason why this House should not refer this question to the Com-

Topic:   SUPPLY-THE NIPISSING ELECTION.
Permalink
CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

mittee on Privileges and Elections. It may be that that committee will report that the action of the executive in this respect is sustained by parliamentary usage and by the law applicable to the division of power between parliament and the executive in that respect, but what I do contend is that a case has been made out for inquiry. Beyond that I do not need to go. And if this is not a proper case for the consideration of the Committee on Privileges and Elections, I would be glad to have any hon. member point out under what possible circumstances you can refer matters affecting the seats of members of this House to that committee ? Of what use is that committee if not in a case of this kind ? It was made use of, and with good results, in 3887 in the ease I have referred to. All we ask is that the matters which have been brought to the attention of the House shall be referred to the Committee on Privileges and Elections for inquiry and report.

Topic:   SUPPLY-THE NIPISSING ELECTION.
Permalink
?

The PRIME MINISTER (Rt. Hon. Sir Wilfrid Laurier).

I have nothing to complain of, but quite the contrary, in the manner in which my hon. friend from Hastings (Mr. Northrup) has brought this question to the House. If my hou. friend will allow me to give him my candid mind, I would say that he deserves great credit for the fair and impartial maimer in which he has presented his views to the attention of parliament. He presented them without any passion feeling, without appealing at all to prejudice, but simply calling the attention of the House to what he conceives to be a wrong practiced upon the liberties of the people and parliament itself. My hon. friend said once or twice that he expected that a Liberal government would deem it its duty, even more thap a Conservative government would under similar circumstances, to see that the rights and privileges of parliament were duly observed. I quite agree with my hon. friend, and if I were of the opinion that the privileges of this parliament have been violated, I would not at all object to the motion he has placed, Mr. Speaker, in your hands. Let me observe at once to my hon. friend that in this matter, he has after all brought to the attention of the House simply and purely a technical point. Complaints of undue proceeding in elections have often been referred to this parliament, but there is a difference between this and all the cases which, in my experience, up to this time have engaged the attention of parliament, and that difference consists in the fact that in the present instance there has been no wrong done to anybody nor any injustice committed towards any one. Let me say at once also to my hon. friend that I do not disagree, but on the contrary agree with him. that parliament, in passing the Controverted Election Act, did not at all divest itself of its paramount power over all matters which pertain

to elections, My hon. friend from Simcoe (Mr. McCarthy) did not controvert that principle, and my hon. friend from Hamilton (Mr. Barker) did not fully apprehend his argument on this point. Far from asserting that parliament has divested itself of its paramount power to investigate all matters pertaining to elections, my hon. friend from Simcoe stated in so many words that parliament had retained that power. But the argument made by him is that although parliament has still the paramount power to investigate such matters, it would not be judicious or opportune for it to exercise that power in all cases in which wrong-doing may have occurred in an election. Take a very obvious case, which was the basis of the Controverted Election Act, not only in this country, but in England. Suppose a petition were presented at the Bar of this House complaining that one of its members had been elected by corrupt practices. Parliament, though it has the power to deal with that matter and void the election, would, under the law we have enacted, never dream of using it. In all such questions the law is very clear and the practice is equally obvious. Parliament would refer the matter to the courts. It would say to the complainant: you have your

remedy in the courts ; if you do not choose to use that remedy, we will not come to your relief.

My hon. friend cited the case of Sir Sydney Waterlow, but there is no parallel between that case and the one we are considering. The charge brought against Sir Sydney Waterlow was that he was a public contractor. If he were a public contractor at the time of the election, his election might have been voided for that reason, but if he continued to be a public contractor, the offence was a continuous one and parliament could take notice of it at any moment. The point in this matter before the House is not whether or not a case has been made out which should have been investigated by the courts, but whether there is such a case that we should take cognizance of ourselves, although the courts have the power and jurisdiction over it.

There are two things to be examined, according to the argument of my hon. friend from Hastings and just repeated by my hon. friend the leader of the opposition. First of all, there is the conduct of the returning officer, and then there is the validity of the writ of election. As to the conduct of the returning officer, let us see what there would be to investigate in his case. A writ was issued at the time of the general election, to Mr. Varin to act as returning officer, at the election to be held at Nipissing. Mr. Varin consented to act in that capacity. Mr. Varin did not act upon the writ beyond a certain point. He accepted the writ, and, if I remember well, posted up the notices, but did not proceed further. Whatever may be said of the conduct of Mr. Varin as to why he refused to proceed further and finally returned the writ to the Clerk of the Crown in Chancery or as to the legality of his conduct, there is no impugning his motive. He did not act from an improper, or dishonourable or fraudulent motive, or from any intention of giving an advantage to one of the contestants over the other. He acted as he did because he had discovered that if the election took place at the time named in the first writ, about one-quarter of the electors would have been disfranchised. He informed the government of the fact. Now, I come to a question which has been asked of me by my hon. friend the leader of the opposition and which he expected me to answer. How is it, said he, that the writ was issued and the government did not take the precaution to exercise the power placed in their hands by the Franchise Act to have a new list prepared ? How is it that they issued the writs without assuring themselves if new lists would be required ? I must say that the hon. gentleman cannot expect, and no one could seriously expect, that the government, before issuing the writs for a general election could look into the 213 constituencies into which the electorate of Canada is divided and ascertain whether the lists were ready in every constituency.

Topic:   SUPPLY-THE NIPISSING ELECTION.
Permalink

April 24, 1901