May 4, 1926

FIRST READING


Bill No. 95, to incorporate the Red Lake and Northwestern Railway Company. -Mr. Heenan.


PEACE RIVER ELECTION

PETITION ASKING THAT RETURN OF MR. KENNEDY BE DECLARED VOID

LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Right Hon. W. L. MACKENZIE KING (Prime Minister):

I wish to ask whether the petition presented by the hon. member for West Calgary (Mr. Bennett) with respect to the return of the hon. member for Peace River (Mr. Kennedy) has been examined; I should like to draw attention to the fact that the matters to which it refers are before the courts under the Controverted Elections Act. This being the case I desire to raise a point of order as to whether the petition can properly be received.

Topic:   PEACE RIVER ELECTION
Subtopic:   PETITION ASKING THAT RETURN OF MR. KENNEDY BE DECLARED VOID
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LIB

Hewitt Bostock (Speaker of the Senate)

Liberal

Mr. SPEAKER:

I am informed by the

Clerk of the House that the report of the examiner of petitions in reference to this matter is in to-day.

Topic:   PEACE RIVER ELECTION
Subtopic:   PETITION ASKING THAT RETURN OF MR. KENNEDY BE DECLARED VOID
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LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

Then, Mr

Speaker, I would raise the point of order to which I have already alluded, namely, whether under the existing circumstances the petition can properly be received by the House. In raising the point of order, I have no desire to express any view one way or the other with respect to the matters referred to in the petition, but I simply draw Your Honour's attention to the fact that when resort has been had to a similar proceeding in the past, the House has more than once declined to receive a petition relating exclusively to a matter before the court and pertaining to the Controverted Elections Act.

Topic:   PEACE RIVER ELECTION
Subtopic:   PETITION ASKING THAT RETURN OF MR. KENNEDY BE DECLARED VOID
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CON

Richard Bedford Bennett

Conservative (1867-1942)

Mr. BENNETT:

We might as well have

the petition read.

Topic:   PEACE RIVER ELECTION
Subtopic:   PETITION ASKING THAT RETURN OF MR. KENNEDY BE DECLARED VOID
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LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

My hon. friend in presenting the petition to the House indicated very clearly the nature of it. The statement of the hon. member for West Calgary was as follows:

Hon. R. B. Bennett (West Calgary): Mr. Speaker,

I desire to present the petition of James Arthur Collins, of Chisholm, in the province of Alberta, lumberman, praying that the House of Commons of Canada may determine and declare that Donald Macbeth Kennedy was not duly elected and returned at the election held on the 29th day of October, 1925, and that the said return was and is void, and that it may be declared that the petitioner was duly elected at the said election and is entitled to be returned as the member elected to represent the electoral district of Peace River in the House of Commons of Canada.

The remarks of my hon. friend indicate clearly that the petition relates to a controverted election, one which he and the House know is before the courts at the present time.

I point out, Mr. Speaker, that there are four acts under which methods are provided

306G

Peace River Election

by law for correcting election wrongdoing or punishing offenders in connection with such wrong doing; first, the Dominion Election Act; second, the Controverted Elections Act; third, the Corrupt Practices Inquiries Act, and fourth the House of Commons Act. The purpose of the enactment of the Controverted Elections Act was to remove from the jurisdiction of parliament to the courts matters relating to the election of members. I would in that connection point out the difference between a matter relating to the election of a member and a matter relating to the qualification of a member on grounds other than those pertaining to his election. Under the House of Commons Act, the House reserves to itself full power to deal with any matter referring to a member's right to sit in the House other than the right as affected by the elections; matters arising out of an election, parliament has, in its wisdom, expressly removed from the arena of decision or discussion here to the courts, having recognized long ago that it is difficult if not impossible for a question of the kind, which may give rise to so much party feeling and partisan discussion, to be satisfactorily dealt with by the House.

May I remind the House, Mr. Speaker, that the Controverted Elections Act was passed in 1873. The statute will be found to-day as chapter 7 of the Revised Statutes of 1906. At the^time of the enactment it was referred to as an act to make better provision for the trial of controverted elections of members of the House of Commons and respecting matters connected therewith." Section 91 of the act reads:

AIJ elections shall be subject to tihe provisions of this act, and shall not be questioned otherwise than m accordance herewith.

Mr. Speaker said: "I cannot find any rule or precedent to guide me in coming to a conclusion on this question. I think it would be well for the House to consider this matter, and lay down a rule with respect to similar petitions in the future. I am of the opinion that it is an election petition. Looking over the late English Journals, I cannot find any cases of petitions of this nature having been ruled out. After considering all the circumstances, I think that the petition ought not to be received.

Topic:   PEACE RIVER ELECTION
Subtopic:   PETITION ASKING THAT RETURN OF MR. KENNEDY BE DECLARED VOID
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CON

Richard Bedford Bennett

Conservative (1867-1942)

Mr. BENNETT:

That was Mr. Speaker Anglin.

Topic:   PEACE RIVER ELECTION
Subtopic:   PETITION ASKING THAT RETURN OF MR. KENNEDY BE DECLARED VOID
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LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

The Hon. T. A. Anglin was Speaker of the House at the time. I would draw Your Honour's attention to these words:

Looking over the late English Journals, I cannot find any cases of petitions of this nature having been ruled out.

It will be inferred, I think, from that language that no petitions of that character had been presented to the House of Commons in England, the House having recognized the desirability of following the method, which indeed we in Canada copied from the British legislation, of having all matters of the kind dealt with by the courts. I would further direct special attention to the ruling of his honour the Speaker in these words:

After considering all the circumstances, I think that the petition ought not to be received.

The petition was one relating to the election of an hon. member of this House and m that particular was similar, if not indeed in many respects identical, to the one which we are discussing at the moment.

May I now cite another case in point On January 17, 1S81, Sir Wilfrid Laurier, then Mr. Laurier, moved in the House of Commons:

This would appear to make clear the intention of the Controverted Elections Act to remove from the House of Commons questions with respect to election of members otherwise than in accordance with the act's provisions.

The act as I have just stated was passei m IS/3. In 1874 a case in point came befori the House. It is reported in the Journals o the House of Commons for 1874, April 20 at page 82. I shall read from the Journals

A motion being made and seconded, that th petition of Horatio Le Boutailier, of Gasp6 Basin province of Quebec, presented on Thursday last praying that the return for the last election for th. electoral district of Gaspe be completed and amended as a matter of privilege, by substituting the nami of the petitioner for that of Louis George Harper be now received :

And objection being taken to the reception of this petition on the ground that the subject is one which cou d only come under the cognizance of the courts or law as provided by statute:

That the petition of Edmund Ritter, and others, o-f Sorel, representing that there has been a failure of justice in the matter of the trial of the election petition, complaining of an undue return for the electoral division of Richelieu; and praying to be allowed to make proof before the House, be now read.

Ti he motion was agreed to on February 3, and the petition read. The words first quoted will be found in Hansard of 1881, Vol. 1, page 485. A debate followed as to whether the petition should be received by the House, and on February 14, Mr. Speaker J. G. Blan-chet decided that the petition could not be iecei\ed by the House. The discussion will be found in Hansard of 1881, Volume 2, page 961 and Mr. Speaker's ruling will be found m the Journals of the House of that year at page 199. Mr. Speaker Blanchet went very carefully and fully into the subject under review and I should like to read to Your' Honour the ruling which was given by Mr. MAY 4, 1926

Peace River Election

Speaker at that time. In the Hansard debates at page 823 under "Controverted Election of Richelieu" the following appears:

Mr. Laurier moved that the first order of the day be the resumption of the adjourned debate on the proposed motion of Mr. Laurier, for the reception of the petition of Edmund Ritter and others, complaining of a certain failure of justice in connection with the controverted election of Richelieu.

I refer to that particular introduction to draw attention to the fact that the matter under consideration at the time was whether the petition could be received or not, which is the only point that I am raising just now. As I have already said, I have nothing to say about the merits or the representations of the petitioner. Mr. Speaker's ruling will be found on page 961 as follows:

Mr. Speaker said: After having given a most careful consideration to the petition of Edmund Ritter, and others of Sorel, representing that there has been a failure of justice in the matter of the trial of the election petition complaining of an undue return for the electoral division of Richelieu, and praying to be allowed to make proof before this House of the allegation therein made, I am of opinion that the same cannot be properly received, for reasons which I now propose to state.

I shall not quote all the reasons, but I shall give the House the pertinent parts. He continued:

Now the only question that this House has to consider is, whether this petition is not in effect a petition, questioning the return of a member, which, as it has been admitted on both sides, cannot be properly received by the House, in view of the fact that it has divested itself of its right of trying such matters by referring them to the jurisdiction of an independent judicial tribunal. In handing over this power to the courts, the House still reserved to itself the right of taking notice of any legal disabilities affecting its members, and issuing writs in the room of members judged to be incapable of sitting but the petition now under consideration, both in its terms and scope, is a petition questioning the return of a member, and not within the purview of this House. By the act 37 Victoria, chapter 10, the House of Commons divested itself of its original jurisdiction for the trial of all matters growing out of the election and return of members having the right to sit therein, including the withdrawal and abatement of any election petition in consequence of alleged corrupt agreement between the parties concerned. That power now belongs to the courts of justice, which try all election cases in conformity with the statutes in that behalf provided. The 63rd section of the Dominion Controverted Elections Act, 1874, expressly provides that all elections held after the passing of the said act shall be subject to the provisions thereof, and shall not be questioned otherwise than in accordance therewith, showing clearly that the determination of the judicial body to whom that power has been delegated is final to all intents and purposes. Now the petition in question declares in express terms that the sitting member "has no right to the seat he. occupies"; and were the prayer of the petitioners granted, the logical result would be the virtual resumption by the House of the jurisdiction which it has in its wisdom handed over to the courts. It asks the House to sit as a court of appeal upon a judgment rendered by a court of justice, though such judgment

ought to be final 'according to the law. If the petition should be received it would then be competent for any member to move that it be referred to a committee; and if such a motion were agreed to, the various allegations in the petition would constitute the order of reference by which the committee would be governed in its proceedings. In this way a door would be opened to the indiscriminate reception of petitions attacking generally the return oi members, though not governed by any of those formalities necessary even in those times when the House possessed full jurisdiction over controverted elections.

To grant the prayer of the petition, would be to violate the general principle which lies at the basis of all the legislation adopted by the English parliament since 1868, and by the Canadian parliament since 1873, that the courts should alone adjudicate on matters on controverted elections.

In conclusion Mr. Speaker said:

In view, then, of the fact that the petition is in conflict with the letter and spirit of the law which governs the House in such cases, and does in effect question the right of an hon. member to his seat; I have to decide that the objection raised by the hon. member for Bagot is well taken, that the petition cannot be received.

The petition which my hon. friend presented the other day is, I submit, both in its terms and scope a petition questioning the return of a member and as such identical in its essential features with the one which Mr. Speaker Blanchet refused to allow to be received at the time to which I have just referred.

On April 28, 1887, the papers relating to the election in the electoral district of Queen's, NB., having been brought up, an hon. member Mr. Skinner, moved that on the facts recited in his resolution a wrong return having been made, the return should be amended by inserting _ another name therein. In reference thereto the Minister of Justice, the Hon. J. S. D. Thompson, said that since the Controverted Elections Act-

-by which parliament has renounced its rights to deal with the matter of controverted elections, there has been fully recognized in the various discussions that have taken place in tile Imperial House of Commons this principle, that everything has been transferred to the judiciary in connection with controverted elections excepting the one question of the qualification of persons who have been returned to parliament. . . . the conduct of the returning officer or the number of votes which were received, the conduct of the candidates, and every other question connected with the election. . . . has been relegated to the judiciary, and the House has always declined to exercise its functions and its power to interfere.

Sir John Thompson accordingly moved that instead of adopting Mr. Skinner's resolution the House should refer the papers in relation to the election to the committee on Privileges and Elections for report. After a considerable debate this amendment was carried on the same date, April 28. The references in question will be found in Hansard of April 28, 1887, at page 154 et seq. On

Peace River Election

May 6 the committee on Privileges and Elections reported that in its opinion the case should be disposed of under the Controverted Elections Act, since all questions as to the validity of the election of members should be decided by the ordinary legal tribunals and not by the House of Commons.

In that case, there was, I think, doubt as to whether the petition did not go further than simply refer to the matters appertaining immediately to the election of the candidate. For that reason apparently the petition was received by the House and referred to the committee on Privileges and Elections, but the committee took care to draw the attention of the House at once to the fact that the petition was really one which should have been construed as coming under the Controverted Elections Act. It accordingly advised that the House should not entertain the request in any particular.

That brings me to one other case to which I should like to refer. Many hon. members present will recall that in 1913 certain charges were made against the Hon. Mr. Coderre when that gentleman occupied the position of Secretary of State. A motion was made to refer to the committee on Privileges and Elections certain matters relating to the election of the member, and certain facts and circumstances appertaining thereto. The point I desire to make clear in reference to that particular matter is that something more than the mere question of the hon. member's right to his seat in parliament was involved; his right to sit in the House was but one of the matters in question. The opposition of the day took the view that inasmuch as the petition related to matters going considerably beyond the question of the right of the member to his seat in the House, it should be referred to the committee on Privileges and Elections. The matter was debated at length.

Topic:   PEACE RIVER ELECTION
Subtopic:   PETITION ASKING THAT RETURN OF MR. KENNEDY BE DECLARED VOID
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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

Was the petition received?

Topic:   PEACE RIVER ELECTION
Subtopic:   PETITION ASKING THAT RETURN OF MR. KENNEDY BE DECLARED VOID
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LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

I understand the matter was raised on a question of privilege.

Topic:   PEACE RIVER ELECTION
Subtopic:   PETITION ASKING THAT RETURN OF MR. KENNEDY BE DECLARED VOID
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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

But as a matter of fact

the petition was received.

Topic:   PEACE RIVER ELECTION
Subtopic:   PETITION ASKING THAT RETURN OF MR. KENNEDY BE DECLARED VOID
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LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

I am not in

a position to say whether there was or was not a petition, but I am able to quote my right hon. friend's opinion then expressed with reference to petitions of the kind being received by parliament.

Topic:   PEACE RIVER ELECTION
Subtopic:   PETITION ASKING THAT RETURN OF MR. KENNEDY BE DECLARED VOID
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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

I know what it was.

Topic:   PEACE RIVER ELECTION
Subtopic:   PETITION ASKING THAT RETURN OF MR. KENNEDY BE DECLARED VOID
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LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

I desire to

quote my right hon. friend as he is reported in Hansard on March 17, 1913, at page 6140. He said in the course of his remarks:

Undoubtedly, until tie passing of the Controverted Elections Act in this country in 1874 and the Elections Petitions Act in Great Britain in 1868, both parliaments had jurisdiction through their privileges and elections committees to try all matters connected with the election of their members. These committees were appointed primarily for that purpose, and petitions had to be presented to them and money deposited for security, and tlhe committees tried the cases m the usual way. But since these acts were passed in these two parliaments-and I will ask the hon. member for Carleton and the hon. (member for St. Hyaeinthe to contradict me if I am wrong-there has never been a case where such a charge as that made here has been referred to the Privileges and Elections committee.

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Subtopic:   PETITION ASKING THAT RETURN OF MR. KENNEDY BE DECLARED VOID
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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

Hear, hear.

Topic:   PEACE RIVER ELECTION
Subtopic:   PETITION ASKING THAT RETURN OF MR. KENNEDY BE DECLARED VOID
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LIB

William Lyon Mackenzie King (Prime Minister; President of the Privy Council; Secretary of State for External Affairs)

Liberal

Mr. MACKENZIE KING:

Elsewhere the right hon. gentleman is reported as follows: What was the opinion of Sir John Thompson? It was that, since the passing of that act in England m 1868 and since the passing of a parallel act in Canada in 1874. these Houses had divested themselves of all authority to inquire into matters connected with elections, save only the question as to the qualifications of the member selected-as to whether or not that member was a .minor, felon or convict.

The right hon. gentleman then mentions that Sir John Thompson's opinion was approved by the committee on Privileges and Elections, and further on he says:

So far as the public are not affected, and so far as the charges relate to elections, we have divested ourselves of such authority and vested it in the courts; and so we must exclude all such cases fram the jurisdiction of the Privileges and Elections committee.

In the division which took place on the motion I observe that my right hon. friend in opposing its reference, notwithstanding its scope, to the committee on Privileges and Elections, was consistent in the view he took, and was supported at the time by the hon. member for West Calgary (Mr. Bennett) who has now presented the petition claiming the Peace River seat for Mr. Collins.

I need not any longer occupy the time of the House by citing authorities. Perhaps, however, I should make this concluding observation. Following the constitutional practice adopted in England there can be no question as to the duty of the House to decline to receive a petition of the nature of that which has been presented. Inasmuch as our practice and our legislation are modelled on the British procedure and acts and has been followed heretofore in accordance therewith we should here seek to maintain the precedents that have been established and which for good and sufficient reasons have been so resolutely upheld in recent years. May I again say that

my purpose in raising this point of order at the moment is not in any way to discuss the merits of the petition, to question the motives of the hon. member who has presented it, nor to inquire at whose instance it has been submitted to the House, but simply to ask that before this House receives the petition or takes any action upon it, there shall be a ruling from Your Honour as to whether or not it may properly do so.

Topic:   PEACE RIVER ELECTION
Subtopic:   PETITION ASKING THAT RETURN OF MR. KENNEDY BE DECLARED VOID
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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Right Hon. ARTHUR MEIGHEN (Leader of the Opposition):

I had no notice until

the Prime Minister (Mr. Mackenzie King) rose that this was to be a matter of discussion this afternoon. The point apparently taken is that the House has not only divested itself of power to try the merits of elections so far as their conduct is concerned but has also relinquished the right to receive a petition from anyone who may question a return.

I want to thank my right hon. friend for the compliment of including my humble self among the list of high authorities whom he has quoted dating back over a considerable number of years. Did those authorities appertain to the point raised by my right hon. friend the compliment would be greater; but in the main, as was evident from the Prime Minister's own words, they had no reference at all to that point. Let me again emphasize the fact that I have not had an opportunity to review the cases referred to but, as I gathered from the Prime Minister's remarks, he cited four authorities, one in 1874, one in 1881, another in 1887 and the Coderre case in 1913. As respects the first two, and the first two only, did the question as to the right of the House to receive the petition even so much as come up. Whether the state of the law on that occasion was the same as it is to-day may be a matter for dispute. I raise it not now. But I say this, certainly as respects the second-and there was not sufficient data given as respects the first-it was not the same case at all as is being tried here. That was a case where the courts had already dealt with the subject and where the petitioners sought to make the House of Commons a court of appeal from a court of justice.

I come now to the third and the fourth. Those cases are distinctly against the Prime Minister's contention. Those were cases where the petitions were received, and comments of members of the House as to what ought to be done with them, whether by reference to the committee on Privileges and Elections or otherwise as to how the discretion of parliament should be exercised, have no place at all. The fact is the petitions were received, and this House thereby set

Peace River Election

precedents which we are asking the House to follow now. We are not to-day at the stage where we discuss what should be done with the petition after it is received. When we come to that stage I will deal with the authorities quoted by the right hon. Prime Minister from the debates of 1887 and 1913.

I want to emphasize this. A most serious step is to be taken if this petition is not to be received. This is not a petition that questions the conduct of an election at all. If such conduct is to be held in question, then I quite agree we have decided that the courts of justice are the proper tribunals for decision as to the merits. That is what was called in question in the Coderre ease- whether or not Mr. Coderre personally or those acting as his agents had so conducted the contest as to entitle them to the verdict that was given. What is in question in this case is not whether. the hon. member for Peace River conducted his contest honestly or not, not whether the votes cast in his favour or cast against him were rightly or were corruptly so cast. The only question at issue is: Were the votes cast in his favour or were the votes not; was he elected on the votes so cast, whether honestly cast or not? Surely this House has not divested itself of jurisdiction to say whether after the ballot box was closed the facts show that this man was elected or was not.

The men who take charge of the ballots and who declare the verdict are officers of this House, they are the deputy returning officers and the general returning officer for Canada. These men have nothing to do at all with the righteousness or the wrongness of the conduct of the election; but they have everything to do with the rightness of a declaration as to who got the most votes. I repeat, the general returning officer is an officer of this House. Are we to sit here and say that we have not the right even to receive a petition which questions the conduct of an officer amenable to this House, and to this House alone? We do not ask and do not suggest that parliament go behind the closing of the ballot box and say whether or not there was a breach of the law. All we ask to-day is this: Is the return made by an

officer of this House in accordance with the votes of the electors, however those votes were obtained?

Now the Prime Minister rises at this stage and says to you, Mr. Speaker: You must

not allow the first step to be taken to enable parliament to become cognizant of the conduct of its own officer; you must not even receive a petition which would bring the

Peace River Election

matter before this House. I repeat, if we are to take that step it is a very serious one. It is a step which puts the officers of this House beyond the jurisdiction of the House itself. I suggest that the right course to pursue is to permit the petition to come to this House for debate, and then if this House decides in the exercise of its well known jurisdiction over its own officer that It should not refer the petition to a committee, very well, let the House so decide. But do not let us establish the precedent of having Mr. Speaker declare that the House has no right even to consider what should be done with a petition affecting the conduct of an officer amenable to the House alone.

Topic:   PEACE RIVER ELECTION
Subtopic:   PETITION ASKING THAT RETURN OF MR. KENNEDY BE DECLARED VOID
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May 4, 1926