May 4, 1926

LIB

Georges Henri Boivin (Minister of Customs and Excise)

Liberal

Mr. BOIVIN:

My right hon. friend contends that this parliament should substitute itself for the courts, and that in all cases election petitions should come here-

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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

I do not ask that at

all; never suggested it.

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LIB
CON
LIB

Georges Henri Boivin (Minister of Customs and Excise)

Liberal

Mr. BOIVIN:

Owing to a criminal

irregularity, if you like-

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CON
LIB
CON
LIB

Georges Henri Boivin (Minister of Customs and Excise)

Liberal

Mr. BOIVIN:

The officer of my right

hon. friend as well as of myself.

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CON

Arthur Meighen (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. MEIGHEN:

But appointed by the

government.

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LIB

Georges Henri Boivin (Minister of Customs and Excise)

Liberal

Mr. BOIVIN:

I am glad to hear him say that only for that reason this petition must be received. But if all other officers made mistakes, would all the petitions have to be received here? If, for instance, a political party desired to exercise partisanship to the highest degree in a house where the government majority would be forty or fifty over the party on the other side, and if all petitions came to the House instead of being heard by the legally constituted tribunals of the land, would it not be possible for a partisan majority to oblige almost all of the members in the minority to vacate their seats? That certainly would happen. It sometimes did happen many years ago, and that is why parliament in its wisdom de-

Peace River Election

cided that these questions should not be dealt with here, but should be decided by judicial and independent tribunals. If those legally constituted courts find any irregularity or any criminal act on the part of any officer, it is the duty of the judge hearing the matter to report to Mr. Speaker, who reads the report to the House at the opening of the next session. Then is the time for parliament to judge the act of that officer. The petition before you, Sir, is worded in plain English. It is a request that the hon. member for Peace River leave his seat and give it to his defeated opponent in his last election. Before he is asked to do that, we should not look at what took place in one particular polling subdivision, but the court legally empowered to do so should consider what took place in every polling subdivision, and when that has been determined it will be time for parliament to decide wbat punishment should be meted out to any guilty officer and consider any amendment that should be made to the election act. There is one amendment which never should be made. That is an amendment which would take out of the hands of an impartial judge or tribunal and refer to party politicians all matters connected with the election of members to this House.

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CON

Hugh Guthrie

Conservative (1867-1942)

Hon. HUGH GUTHRIE (South Wellington) :

May I be permitted to say a word

on the point of order? I will endeavour to discuss the point raised by the Prime Minister (Mr. Mackenzie King) without wandering as far afield as the hon. Minister of Customs and Excise (Mr. Boivin) has done in the remarks he has addressed to the House.

The question in a way is a simple but very interesting one. It is at the same time a most important question and involves the right of a British subject to petition this parliament, a right whioh is laid down by all constitutional writers as an inherent right in our citizenship. A British subject has lodged a petition before this parliament, and the question is whether or not his petition should be received. That, I understand, Mr. Speaker, is the sole question raised this afternoon by the Prime Minister. I am not going to discuss the merits of the case as presented by my hon. friend from West Calgary (Mr. Bennett), but will content myself briefly and solely with a discussion of the right of Mr. Collins to lay a petition on the table of this House and have it received by the House. If our constitutional rights are to be brushed aside with the indifference which has been displayed this afternoon by hon. members opposite, I think the time has come when

we should lay down some definite rule upon the matter. That the right exists there can be no question. A citizen of this country desires to exercise that right; the question is should parliament refuse him that right.

The Prime Minister has cited certain precedents to the House. In the two earlier precedents, that of 1874 and of 1881, it would appear that the Speakers of those days ruled that the petition should not be received. These were early cases, but I point out, Mr. Speaker, that the earlier decisions have been superseded by what took place in this House in connection with the Queen's election case, I think, in 1887 or 1888, followed by another decision, in the year 1900 known as the West Huron election case. I am leaving out for the moment the Coderre case, because I understand that no petition was presented in that case. I take my information on that point from the Minister of National Defence (Mr. Macdonald). Let us turn to the two more recent cases in which petitions were presented and received, notably the Queen's case in 1887 and the West Huron case in 1900. If in the earlier cases the petitions were not received by the House should we be bound by them in the face of what was done in the two more recent cases? Surely the earlier cases have been overruled and superseded, and the law and custom of this parliament at this moment has been settled by the course adopted in both the Queen's and Huron cases, where the petitions were received by this House.

I do not say anything as to the ultimate fate of the petition. I say nothing whatever as to what may or may not be done, or what may be the fate of any motion which may be made hereafter in respect of this petition. But what is our duty at the present moment? I can only repeat what has been said by the hon. member for West Calgary in support of the precedents Which have been cited. These precedents were supported by parliament. Objection was taken in the Queen's election case that the petition should not be received. The Minister of Justice of that day was inclined to think there was great force in the argument, but he informed the House that, having regard to the whole situation, he believed the petition should be received. It was received and was referred to tlhe committee on Privileges and Elections. Is there any reason, Mr. Speaker, for departing from that decision in the present instance?

Then in the West Huron case in 1900 the petition was likewise received by the House. Subsequently it was thrown out or turned down, but it had been received by the House.

Peace River Election

Is there a reason for departing from the established practice of the House on these two occasions? These are the two most recent cases. This petition does deal both directly and indirectly with an officer of this House; there can be no question of that. I am not referring to the prayer of the petition, in which the petitioner claims the seat, but I am referring to the allegations which are made on the face of the petition, the statements of fact that appear upon it. Nothing is more clear than the fact that the conduct of an officer of this House is very gravely brought into question, and I do not think anyone would argue for a moment that this House has not the sole supervision and control of its own officers. That gives us jurisdiction and the right to receive the petition, on the ground, if on no other, that the conduct of one of the officers of this House is impugned. Rule 80 is a very definite rule on that point and reads:

If it shall appear that any person hath Ibeen elected and returned a member of this House, or endeavoured so to be, by bribery, or any other corrupt practices, this House will proceed with the utmost seventy against all such persons as shall have been wilfully concerned in such bribery or other corrupt practices.

What is the first clause of the rule? It provides that if it shall appear that any person has been connected with bribery or other corrupt practice this House

I submit that on the point of order there is little to be urged in support of it and much that can be urged against it. I am not going to attempt any discussion of the merits or demerits of the question in connection with the election contest in Peace River. I know nothing of the facts save what I have read in the newspapers or heard from the language of the petition. The petitioner has made it appear, in the spirit of rule 80, that a certain condition existed during that contest rendering it the duty of this parliament to make an inquiry. I submit that on the question of order Your Honour should have no hesitation in deciding that the last two precedents, the cases of Queen's and Huron, are now the established practice of this House and should be followed in tms instance.

If the petition is received the next step is of course a motion. I do not know what might be said on the motion, whether it should be referred to a committee or not. The argument will no doubt take place upon that motion; but surely we are not going to deny a British subject the right which is inherent in his citizenship, namely, that of lodging a petition before this parliament and of having that petition received. That is all we ask.

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LIB

Lucien Cannon (Solicitor General of Canada)

Liberal

Hon. LUCIEN CANNON (Solicitor-General) :

Mt. Speaker, as the hon. member for South Wellington (Mr. Guthrie) has just said, the question which is now before the House is not that of the merits or demerits of the respective contesting parties before the courts in the Peace River constituency, but simply the point of deciding whether the petition presented by the hon. member for West Calgary (Mr. Bennett) should or should not be received.

This afternoon, as in all matters of this nature, we have had abundant evidence of the wisdom of those who in 1874 decided that election matters should be taken away from the competency of parliament. We have listened to veiy learned lawyers on both sides and not to my surprise I have noticed that instinctively political feeling has crept into the arguments which we have heard. What conclusion must we draw, what inference must we arrive at, other than that if Your Honour comes to the conclusion that the petition has anything to do with the election itself, Your Honour should follow the rule laid down by your predecessors and decide that the petition should not be allowed to be received by the House?

Any lawyer conversant with parliamentary law or constitutional precedent must reach the conclusion, first, that parliament decided years ago-and that decision has been confirmed and ratified under many circumstances -not to interfere any longer in matters merely electoral. And why so? Because when parliament decided controverted elections, either when the House was sitting as a whole or when the House delegated its powers to a select committee, parliament ceased to exercise purely legislative powers or functions and exercised judicial powers. There is one great underlying principle of the British constitution, and its greatest safeguard-this the hon. member for West Calgary will not deny -namely, that executive, legislative and judicial powers should not interfere with one another. I say with pride that the judiciary of Canada can be compared favourably with the judiciary of any other country. Why should we, especially in view of the most

Peace River Election

peculiar and special conditions under which this parliament has met, take away from judges, take away from duly constituted and established courts, a question which belongs to a judicial tribunal, a court presided over by a judge, merely for the purpose of having witnesses bring before a committee, evidence which in all probability cannot be judged by the members of that committee without their being biased by political feeling? There is no doubt that parliament has divested itself of the function of judging cases of controverted elections. The only reason for the receiving of this petition would be that advanced by the hon. member for West Calgary, namely, that it deals not with the election itself but with the conduct or behaviour of an officer of this House. If my hon. friend is right in that contention the petition should be received. If Your Honour comes to the conclusion that his contention is not right, the petition should not be received.

What is the petition? The hon. member for West Calgary has read it; he has read not only the allegations which are the basis for the conclusion, but the conclusion itself of the petitioner Collins. The petition, therefore, is divided into two parts which must not be confused. The first part consists of allegations of fraud committed by certain electoral officers. There is no doubt that parliament has absolute authority to deal with those officers. We can deal with them either directly by calling them before a committee or before the House, or indirectly under the provisions of the Elections Act or the Controverted Elections Act, when a report is sent in to Your Honour giving Your Honour the facts and knowledge of any fraud committed by those officers. But that petition does not ask thait any officer in that constituency who might have committed fraud be punished by this House or by the committee. The conclusion of the petition is the essential section, and an examination of it will lead Your Honour to a decision on this point of order. The conclusion is, not that Robb or any other officer should be punished or reprimanded, but that the sitting member be removed and that the petitioner himself be given his seat. The conclusion is, therefore, that we as a House of Commons, either ourselves or through a committee, shall supersede the judicial tribunals of the country in deciding who shall be the member to represent in parliament the constituency of Peace River. I do not think that a single hon. member in this House this afternoon, no matter on which side he sits, will deny that the petition presented by the hon. member for West Calgary, if accepted, would have

that effect. We are to decide who shall represent Peace River in the House of Commons, according to the petition. Well, in 1874 parliament decided once for all that these matters should no longer be within its competency.

I come now to the last point. Hon. gentlemen opposite ask, why should we not receive the petition? Well, Mr. Speaker, the receipt of the petition would be followed by a motion for its reference to the committee. There is another principle of parliamentary law which cannot be contradicted by any lawyer in this House, and that principle is that the House, under the direction of its Speaker, shall take no action and follow no line of procedure without having a practical object in view. We are not here to waste time. We are not here to lose or waste the money of the Canadian people who sent us to parliament. Every resolution thait comes before the House, every petition that is presented for the consideration of parliament, must have a definite object in view. That principle is well established. But what would be the practical object of this petition even if it were received?

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CON
LIB

Lucien Cannon (Solicitor General of Canada)

Liberal

Mr. CANNON:

My hon. friend from Ottawa says, justice. I am also of his opinion, and I will show before I get through how justice coincides with my contention. What, I ask, would be the practical outcome of the acceptance of this petition? The hon. member for West Calgary would move that it be referred to the committee on Privileges and Elections and the House would decide one way or the other. If ithe House decided to refer it to the committee, the committee, unless we ignored all precedents that have been established during the past fifty years, could not possibly decide who (the sitting member should be, because that is a matter for the courts.

In conclusion let me say that this is not a matter of politics; it is a matter purely of law. In the first place I say that the petition should not be received, for its conclusion is a request that this House decide a controverted election; and, secondly, I am opposed to its reception for the reason that even if it were referred to the committee the committee could not take any practical action upon it. Now, as to the justice of the matter. Here we have a fellow member who enjoys the esteem of every hon. gentleman in this House, and as opposed to him there is the petitioner, against whom I have nothing to say but who claims the seat. I understand that there was also a third candidate. Are we then, if we

Peace River Election

have any feeling of justice and fair play, to constitute ourselves a tribunal, setting aside all precedents governing cases of this kind, and decide this matter in the interests of one party or another? The hon. member for West Calgary observed, indeed, that it was important that Collins should be here, because if he were the government might be out. I do not care whether the government remains in power or goes out, but I stand for the principles of fairness and justice, principles which were written into our statute books in 1874 and which have been observed ever since. What was good enough for Sir John A. Macdonald and Sir John Thompson, what was good enough for Sir Wilfrid Laurier and Sir Robert Borden, is good enough for the smaller men who sit now in the House in their stead.

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CON

Robert James Manion

Conservative (1867-1942)

Hon. R. J. MANION (Fort William):

I have sat this afternoon nearly three hours listening to this debate, which has been largely between lawyers; for apart from the speech of the Prime Minister (Mr. Mackenzie King) no one so far has spoken who was not of the legal profession. As an ordinary member of the House who has had no legal training, but who trusts that he has an appreciable sense of fair play, I wish to add a few words to what has been said.

The Solicitor General (Mr. Cannon) in his concluding remarks declared that this was entirely a matter of law. I do not share that view, Mr. Speaker. I contend that it is absolutely a question affecting the honour of parliament and the rights of the people of Canada, in relation to the composition of this House. The action of the Prime Minister in raising the point of order as to whether or not the petition should be received may be briefly summed up. The motion, shorn of all its ornamentation, will in effect allow the hon. member for Peace River (Mr. Kennedy) to retain his seat in the House of Commons.

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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 want to take exception to the remarks of the hon. gentleman. I did feel that when he rose it would be impossible for him to proceed without making insinuations which he had no right to make.

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?

Some hon. MEMBERS:

Order.

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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:

But-

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Some hon. MEMBERS:

Order, order.

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May 4, 1926