April 24, 1901

CON
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The PRIME MINISTER.

My hon. friend (Mr. Haggart) does not seem satisfied with that. If he can show me how it would be possible for the government to know that in every one of the 213 constituencies in Canada all the lists were ready he would show something which this government has not been able to do, and which I am sure he could not do if he were in the place where he once was and which we occupy to-day. We have to be informed of this, how ? By local officers. The returning officer informed the government at the time that the lists were not ready in all the unorganized portions of the electoral district of Nipissing. That riding is composed, as we know, of a new section of country. There is a certain portion of it organized and another portion unorganized. In the unorganized portions there were sixty-one polling sections in which there were 2,000 electors, or thereabouts ; and, if the election had been held on the 7th November, these would have been disfranchised, as the lists were not ready: The government was informed of that fact.

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CON

John Graham Haggart

Conservative (1867-1942)

Hon. Mr. HAGGART.

Is it not only those in the unorganized districts who were put on since 1898 who would be disfranchised ?

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The PRIME MINISTER.

That would be 2,000-about one-quarter of the electors. That Information I have under my hand. At that time we discovered that lists were

being prepared and an order in council was prepared to have these lists hastened so that they might be ready as soon as possible. Thereupon the returning officer did not proceed with the election and returned the writ. My hon. friend said he did not return it until the 10th November. That is another point which X shall come to presently. Whether he returned it on the 10th November or not, he did not act upon it, but returned it. As I said a moment ago, he did not act from improper motives-everybody will admit that. Did he act illegally or did he act legally ? The gentleman who was the Conservative candidate and who was the most interested, immediately took proceedings to bring the returning officer before the court, believing that the returning officer had acted illegally and improperly. He proceeded against him in the manner provided by law and brought him before the courts of the land. The returning officer's conduct has been investigated by the court. Before we proceed further, let me illustrate this case. Suppose that a case were now pending before the courts, 1 have no doubt that the hon. leader of the opposition would advise us, under the circumstances. not to proceed against the returning officer and investigate his conduct. I think he would say : As the courts are investigating this officer's conduct, it would not be fitting, nor convenient, nor proper nor just to have his conduct investigated before another tribunal. A case came up iu 1875 on which Mr. Blake spoke. He had been called upon to present a petition against the returning officer of the county of Victoria. He presented it because the matter had been placed in his hands, and he said :

He would be very sorry to believe that the House had been deprived, by the position of the Controverted Elections Act, of its power over returning officers and deputy returning officers-of its power to investigate complaints made against them for improper conduct. But when parliament transferred the trial of election petitions to the judges, and expressly provided that the conduct of returning officers might be complained of, and they might be made respondents to petitions, parliament thereby expressed a preference for that mode of investigation, or at any rate a petitioner could adopt that course. Under these circumstances he did not think it would be proper to ask the House to enter into an investigation of the conduct of that returning officer pending the election trial.

Now, Sir, there is a difference between this case and that referred to by Mr. Blake. In the case referred to in 1875, the trial was pending ; in the case of 1901, the trial has been disposed of and the returning officer has been exonerated from blame. And now, after the matter has been referred to the courts, after the courts have passed upon it, and have exonerated the returning officer, will it be seriously contended that we should refer that case to the Committee on Privileges and Elections to have it investigated again ? What would be the ob-3ir WILFRID LAURIER.

ject of having it referred to the committee ? To have the same trial gone over again that has been gone over before the court ? The court has pronounced one way, and it might be possible to induce the committee to pronounce the other way. Parliament having delegated its power to a tribunal, it would be most unseemly, when the tribunal has exercised the power conferred; upon it, for us to say : We will take no cognizance of

what has taken place, but will ask parliament to undo what hast been done by the court, and when the court has pronounced this returning officer not guilty in any particular, has pronounced him exempt from blame, we will ask parliament to investigate his conduct-for what purpose ? To declare him guilty of that of which the court has declared him not guilty. Where could be the sense of justice in pressing another investigation into the conduct of the returning officer under such circumstances? No wrong can be done if this proposed investigation does not take place, because the matter has been adjudicated upon by the very authority appointed by parliament to look into such cases. I submit with the greatest confidence to the impartiality, fairness and justice of every member of this House, not only this side but on the other side as well, that when the court has investigated the conduct of the returning officer nothing could be more unfair or unjust than to have it Investigated again by another tribunal.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

Will the right hon. gentleman (Sir Wilfrid Daurier) be good enough to read that part of the judgment which exonerates the returning officer? I may say that I thought the judgment proceeded 'upon the ground that there had been no validity of the nomination. But that was because the returning officer went into hiding and would not receive nominations.

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The PRIME MINISTER (reading) :

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.

It appears unnecessary to prosecute the trial further with a view to unearthing some vague conspiracy which is hinted at. for the presence or absence of this element will not affect the legal situation as it'is now made manifest.

We are asked now, not to continue the trial further, but to recommence the trial in order to ' unearth some vague conspiracy ' which is hinted at. The court would not do that, because there was nothing to be gained by trying to unearth that vague conspiracy which was hinted at. The hon. gentleman | now asks us to do what the court would not ! do under such circumstances. The court had

nothing before it to satisfy itself that any harm had been done to anybody, or that the returning officer had been guilty. Now, I come to the other point which was brought out by my hon. friend from Hastings, and also by my hon. friend the leader of the opposition. My hon. friend from Hastings took the, position that the second writ which was issued' was absolutely void. Very well, let us suppose that writ was absolutely void, and let us see what would be the consequences and what would be the remedy. If I followed his argument correctly, it was to the effect that the writ of election is no longer a prerogative of the Crown, but that it is now a creation of the statute, aud must be exercised within the limits of the statute. Now, if that be the argument of my hon. friend, and if it be true that the writ is no longer a prerogative of the Crown, but a creation of the statute, and has no existence but that which is given it by the statute, and, therefore, must be exercised under limits prescribed by the statute, then, I say, that if the statute has been violated, if the disposition of this statute has not been followed, then there can be no clearer case for the submission of the question to the courts instead of to parliament. Nothing can be clearer than that. The nullity is caused by the violation of the statute. Now, let me direct attention to the Controverted Elections Act. Section 5, which was cited a moment ago by my hon. friend from Simcoe, speaks in this way :

A petition complaining of an undue return or undue election.

My hon. friend said that he never heard of a case where the validity of a writ had been brought in question in a controverted election ; neither did I. But, because there has been no case in point until the present time, because there has been no election controverted so far based upon the nullity of a writ, does it follow that the nullity of the writ may not be a good cause for controverting an election ? Why, Sir, can anything be plainer than this, that if the nullity of the writ is a violation of the disposition of the statute, this creates an undue election within the terms of the statute ? Therefore, if there ever was a case for controverting an election, it is this very case where the nullity of the writ is set forth as a basis. It seems to me this is a sufficient argument on that point, and I need not pursue it further. I come now to the point upon which my hon. friend the leader of the opposition has laid greater stress, the judgment of the court in this matter. The Lord Chancellor, in delivering the judgment of the court, is reported to have spoken as follows :

It does not form part of our duty 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. This is a matter, not for the election judges, but for the House of Commons.

What is the remedy, then ? While the government think that we acted within our authority, hon. gentlemen on the other side say we have trespassed beyond our authority. Well, if they are of opinion that we have been derelict in the duty which was imposed upon us by law, then, it is a case upon which, if they can make it good, we are prepared to receive the censure of this House. We say to the House : If you think we have done wrong, you have your remedy, you can censure us. But, we do not admit that we have done wrong, we think we have acted within the law and within our authority. Therefore, I am not prepared to admit, speaking on behalf of the government, that there is anything to investigate by the Committee on Privileges and Elections. If we have done wrong we are prepared to abide by the consequences in a parliamentary manner, that is to say, to submit to a vote of censure. But as, in our judgment, we have done the best we could in order to ensure a pure election,' a free election, in order to ensure that every elector in that district might cast his vote, we do not admit that we have done wrong, and, therefore, we contend that there is nothing to be investigated by the Committee on Privileges and Elections.

Hon. JOHN HAGGART (South Lanark!. I may be pardoned in offering a few remarks upon this interesting question. The Solicitor General and the right hon. gentleman have argued that we have not divested ourselves of the right to investigate this matter. I heard the word ' divest ' used several times in the debate. I have yet to learn that parliament can divest itself of any of the powers given it under the British North America Act ; and when the word ' divest ' is used it is a term which is not applicable to the case. However, I heard the Solicitor General, who used the word ' divest,' afterwards change it to the word ' delegate,' which is the proper word. We have delegated to the courts for our own convenience the trial of election cases, and for obvious reasons, we will not interfere if those powers have been exercised within the limits we have set to our delegation to the courts. We have delegated those powers, not only for our own convenience, but for dozens of other reasons which must strike the right hon. gentleman. A couple of times we have departed from that policy, when persons could have gone to the courts under section 5, notably in the Huron and Brock-ville cases, this parliament has taken upon itself the power to inquire into them. No one in this House denies that the power is vested in this House to make an inquiry ; but, the Solicitor General and the right hon. gentleman have argued that under clause 5 of the Act power is delegated to the courts to inquire into these particular cases, and that we ought not to interfere in such cases. I am with the Solicitor General, I am with the right hon. gentleman, that it is not at

all judicious, nor is it in the interest of this House, to make an inquiry into particular cases. Now, does this present case come within the powers of section 5 of the Act ?

I notice that the right kon. gentleman treated that point very gingerly, he thought that it did. He could not have studied the remarks of the judges upon that question. Does he state that under clause 5 of the Election Act we have delegated to the courts the right to inquire whether a prerogative has been rightly exercised or not ? I do not think the right lion, gentleman will hold that. Then, if we have not delegated to the courts the right to inquire whether the prerogative has been rightly exercised, where are we to look for the righting of any wrong that has been committed in the undue use of the prerogative ?

We cannot go to the courts. The only tribunal which we can go to is this parliament. This is one of the rights which we have reserved to ourselves as a parliament, the right of inquiring particularly into these cases as they develop themselves, the right of inquiry whether the prerogative has been rightly exercised in such cases. I do not pretend to be a lawyer although I have studied constitutional questions, but I will say that there is not a constitutional authority in this House who will rise and risk his reputation as a constitutional authority, or as a lawyer, and argue that this particular question has been delegated to the courts, and that this parliament is not in a position to make an inquiry. In such a case the only tribunal which we have a right to apply to is this parliament. I am not stating my own opinion upon this subject. I am stating the opinion of the judges who tried the case. Could there be any plainer language than this especially when the right hon. gentleman says that the conduct of the returning officer was tried before the judges ? Does he mean to say that the judges acquitted him and that there was nothing blamable against him ? The judges stated that the responsibility has been taken from this returning officer by the executive, and they doubt, under the circumstances, whether they have the right to inquire at all into the subject, because the Chancellor says :

No practical result can follow from the attack upon the returning officer as sole defendant, even if (which I doubt) there be jurisdiction to entertain the petition.

Mr. McCarthy. That is because Mr. McCool was not present.

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CON

John Graham Haggart

Conservative (1867-1942)

Hon. Mr. HAGGART.

If Mr. McCool was not present they had no right. They doubted their authority even to entertain the petition. Then, the judgment continues:

It does not form part of our duty under the statute

The language Is as clear as it can be.

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CON

John Graham Haggart

Conservative (1867-1942)

Mr. HAGGART.

-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.

We are acting under the directions of the court.

Mr. McCarthy. Would the hou. gentleman (Mr. Haggart) allow me to interrupt him ? You will find that the case was not a petition by Mr. Klock against the sheriff In regard to the first writ, but in regard to the second writ, and the time having expired to contest the second writ, the circumstances of the case would not permit the election judges to go into it. Therefore, if investigated at all, it must come to parliament, which, as I said this afternoon, is all powerful.

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CON

John Graham Haggart

Conservative (1867-1942)

Hon. Mr. HAGGART.

Yes. [DOT]

If there was not plenary power and prero-tive in the Governor General to act summarily upon the return to the first writ.

What the hon. gentleman contends Is that the writ was the second writ. We deny that the writ was the second writ, even the judges act upon that because they say it is not their duty to inquire into the prerogative whether there was a proper return to the first writ or not, or whether the executive were right at all in issuing the second writ. That is the whole question which was presented to the House by the motion of the hon. member for East Hastings. What we say is that we have no remedy in the courts? We have no opportunity to inquire, according to the judgment of the court, whether the returning officer is responsible for,these acts, because, they say they doubt whether they have jurisdiction at all, because these acts are confirmed by the action of the executive, and they have no power to Inquire into the condoning of the issue of the second writ. Surely then, if these are the facts there is some remedy. We simply request that the course which has been pursued again and again in this House, shall be followed in this case. We say that the matter is of sufficient importance to authorize the Committee on Privileges and Elections to inquire into the matter and advise this House as to what the legal position is in reference to it, to give their opinion upon that question, so that the House may see that its privileges and rights are not infringed upon by any action of the executive whatever. The matter is stated as clearly as it possibly could be in the judgment: .

This is a matter, not for the election judges, but for the House of Commons, to whom the ministers are responsible.

It is as clear as possible, and the direction of the judges is not an obiter dicta at all,

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3717 APRIL 24, 1901 3718

but a part of the judgment itself which is that the House of Commons should inquire whether its privileges have been violated or not. I take issue with the hon. member for North Simcoe in his contention. I take issue with the right hon. leader of the government who spoke upon this question. I am partially with the hon. Solicitor General, who stated, in his opening remarks, that there could be no justification whatever for the returnng officer, and he argued very gingerly as to the legality of the issue of the second writ. He dropped the question of the legality of it altogether and dwelt upon the question whether or not an injustice had been done to the people of the riding. He asked : Would it be right to have an election when one-quarter of the people of the district were disfranchised ? Why were they disfranchised ? The right hon. gentleman asks : Are we to inquire into the question whether, in one hundred and fifty cases the law has been carried out or whether the proper lists are made out or not ? Surely it is the duty of the executive of the country to see that. One-halif of the voters in the cities and towns throughout the province of Ontario would be disqualified in a general election if the executive did not inquire into the question of their qualification. The whole of the manhood suffrage voters of our cities and towns in Ontario depend entirely upon the executive to see, when the lists are more than a year old, that the proper lists are provided and officers are appointed by the executive of this country to attend to this matter. Yet the right hon. gentleman says that the responsibility does not rest upon the executive at all in this matter. Th? responsibility rests upon the executive to see that the law is carried out, to see that the voters who are entitled to vote in the different provinces, are upon the list, not only in cities and towns, but in the unorganized parts of the country, and having done this, it is their duty to issue the writs afterwards. Perhaps it is not pertinent to this particular question, but I need not say that it is impossible to successfully carry out an election law based upon provincial lists. The other day I asked the hon. Solicitor General Whether the Dominion of Canada could delegate to the different provinces the power to make the franchise for the Dominion. He said : No, we do not do anything of the kind. I pointed out to him that when we adopted the provincial lists we delegated the power to the different provinces to form the franchise for the Dominion. It is a franchise liable to be changed from day to day according to the wish and will of the provincial authorities. Did the right hon. gentleman and his cabinet ever consider the circumstances that in Manitoba they have a franchise under which they disqualify every person, being a British isubject born, and thirty year's a resident in Manitoba, if he could not read or write ?

117i

Such a person is disqualified from voting at a Dominion election. Is not the power delegated to the different provinces to make the franchise for the Dominion parliament? The contention from this side of the House is undoubtedly correct on this case. There is no disputing the fact that the only tribunal we have to appeal to against injustice perpetrated by the returning officer and by the executive in issuing a writ while the other writ was in existence ; the only power in this country to correct that evil is the power of parliament, and whether our opinions be right or wrong, they are of sufficient importance to call for an inquiry into that by the Committee on Privileges and Elections.

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LIB

William Manley German

Liberal

Hr. W. M. GERMAN (Welland).

Mr. Speaker, I desire to add a few words to perhaps clear up one or two matters in regard to which I think hon. gentlemen opposite are labouring under a very deep cloud of misapprehension. In the first place, it has been stated that our hon. friend from Simcoe (Mr. McCarthy) suggested that parliament had divested itself of its power to try these matters by reason of passing the Controverted Elections Act. The argument made by the right hon. the premier has I think convinced the House that such was far from the suggestion made by the hon. member (Mr. McCarthy). There is no doubt that parliament can investigate at any time it chooses, any matter which may come before it touching the seat of any member. No person will attempt to controvert that. It seems to me that this matter narrows itself down to a very small compass indeed. In the first place, was the second writ which was issued under the prerogative of the Crown a valid writ under which an election could be held ? If it was not a valid writ then what is the remedy, by reason of an invalid writ having been issued by the authority of the Crown. The Controverted Elections Act provides that all matters of that kind should be tried by the courts. Hon. gentlemen opposite have endeavoured to convince this House that the courts have decided that they have no jurisdiction to try the question of the validity of the second writ. Well, Sir, on that particular point these hon. gentlemen are exceedingly wide of the mark and they do not properly appreciate the judgment of the court because the judgment of the court expressly states :

It does not form part of our duty under the statute to investigate or pronounce upon the constitutional right of tha executive to direct the issue of a new writ in the circumstances of this case.

And what were the circumstances of this case ? The circumstances of this case were, that a petition had been presented to the court against the returning officer, not by reason of the issuing of the" new writ at all which was not in question in the action,

but against the proceedings of the returning officer under the first writ that had been issued, that was the question to be tried and that was the question upon which the courts decided. The court did not, and I apprehend the court would not decide that the court had not full and ample jurisdiction to decide on the validity of any writ that was issued by the Crown. X will venture to say that the leader of the opposition would not prejudice his reputation as a leading lawyer in his province by asserting that the courts of the land could not adjudicate on the validity of a writ that was issued by the Crown.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

I am most distinctly of the opinion that the Controverted Elections Act does not confer upon the courts any such power.

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LIB

William Manley German

Liberal

Mr. GERMAN.

That is certainly not the question. Have not the courts of this country the right to decide as to whether or not any Act of this parliament is antra vires of this parliament ? Has not the parliament ample and complete authority to act in this country? Is not parliament supreme ?

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CON

William Barton Northrup

Conservative (1867-1942)

Mr. NORTHRUP.

Not since the issue of the second writ apparently. It is the executive that is supreme.

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LIB

William Manley German

Liberal

Mr. GERMAN.

The court is supreme and I will venture to say that if the learned counsel who had the case in charge in the interests of the Conservative party, thought they could have established the invalidity of the second writ they would have made Mr. McCool a party to the proceedings and attempted to upset that writ.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

Will my hon. friend permit me to say it was not possible to do that, because Mr. McCool was returned under the second writ. This proceeding against the sheriff was in respect of his conduct under the first writ.

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LIB

William Manley German

Liberal

Mr. GERMAN.

I cannot quite appreciate the idea which my learned friend (Mr. Borden, Halifax) has in regard to this matter. Here was a return made by a returning officer to a writ issued by the Crown under which an election was held and a return made to the writ. Surely under the Controverted Elections Act a petition could have been filed against Mr. McCool and the whole matter could have been gone into.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

I never said the contrary. My hon. friend either does not understand me or I do not understand him. What I said was, that a petition having been brought in respect to the acts of the returning officer under the first writ, you could not bring in Mr. McCool as a party, because he was returned not under that writ but under the second writ issued by the executive.

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LIB

William Manley German

Liberal

Mr. GERMAN.

Could not they have brought two actions if they wanted to and filed two petitions 1 Mr. GERMAN.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

Certainly they could.

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LIB

William Manley German

Liberal

Mr. GERMAN.

Because they filed a petition against the returning officer in reference to the first writ, it was no bar to their' filing a petition to dispute the return of Mr. McCool under the second writ.

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April 24, 1901