May 16, 1918

L LIB

Emmanuel Berchmans Devlin

Laurier Liberal

Mr. DEVLIN:

If the minister was referring to me a moment ago, in saying that I made a statement that the only question which was submitted to the committee was a cold-blooded question of law, I think he misunderstood me. What I said was that the consideration of the whole question resolved itself into this-whether the soldiers' votes overseas should be counted or not.

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UNION

Arthur Meighen (Minister of the Interior; Superintendent-General of Indian Affairs)

Unionist

Mr. MEIGHEN:

I did not refer to the hon. member. I gave the distinction of the

use of that adjective to the hon. member (Mr. McKenzie).

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L LIB

Emmanuel Berchmans Devlin

Laurier Liberal

Mr. DEVLIN:

He is able to take care of himself. .

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L LIB

Daniel Duncan McKenzie

Laurier Liberal

Mr. McKENZIE:

Perhaps I did not express myself clearly, but what I meant to say was that that was what the question resolved itself into; that was the result of it; that the question to be decided by the Committee was a question of law.

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UNION

Arthur Meighen (Minister of the Interior; Superintendent-General of Indian Affairs)

Unionist

Mr. MEIGHEN:

Those are precisely the words I attributed to the hon. member, and that is precisely why I take exception.

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L LIB

Charles Murphy

Laurier Liberal

Mr. MURPHY:

At what page is to be found the order which the minister has just read?

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UNION

Arthur Meighen (Minister of the Interior; Superintendent-General of Indian Affairs)

Unionist

Mr. MEIGHEN:

At page 1 of the Proceedings of the Select Standing Committee on Privileges and Elections. In pursuance of that committment of a clear and specific duty, there was carried in the Privileges and Elections Committee and reported to this House, a resolution recommending that the duty imposed upon them by this Parliament should be shifted from their shoulders to the Supreme Court of Canada, or to two judges of a court of Ontario, for determination upon a stated case. On the ground taken by the hon. member for West Calgary that the Teport of the committee is in no sense a discharge of the duty imposed upon it by this House, the only course left open to this House is to refer the matter back to. that committee that it may discharge the duty imposed upon it by this House. Any other course is to depart from the stand taken by this House when that motion was passed. Either the House made a mistake when it took that stand and must now retract its position, modify its position, acknowledge its error, and settle the matter over again, or it must recommit to the Privileges and Elections Committee the duty which this House committed to it.

Was it right that Parliament should commit the adjudication of this matter to the committee? I think it was right, for the reason that the task of the committee is not by any means 6olely the determination of a question of law. The task of the committee is much larger than that. If it were solely a question of law, even then committees of this House have time and again (questions of law and also questions of fact to determine. Questions involving both law and fact are time and again before committees of this House for determination and they are determined as beet the committees can. But this is a threadbare, cold-

iblooded question of law and nothing else. There is a question of law involved, it is true; part of the question is a question of law. I shall see if I can define to the iHouse this fine, hair-splitting question of law.

Mr. M e-CEE A: The minister is well qualified to do .so.

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UNION

Arthur Meighen (Minister of the Interior; Superintendent-General of Indian Affairs)

Unionist

Mr. MEIGHEN:

The question is as to whether or not the term "nomination" day in the Military Voters' Act means the nomination day in each of the several constituencies, or means the general nomination day of Canada; whether or not the intention of Parliament was that the voters overseas should toe all voted together in their respective constituencies- at the same time over the same month, or whether they should (be parted into camps and: some voted in one period in one election and some in another, depending altogether when the vote should take place in the constituency in which they exercise their franchise. I was present when the Military Voters' Act was before this House; many other hon. members also- were here, and I would like hon. gentlemen to search the records of Hansard and ascertain wherever -a dioutot arose in the fertile brains of any member of this House as to whether or not the vote o-f the soldiers overseas was all to be taken, at the same time. Nobody ever questioned the thing; but it is contended- I shall not say rightly or wrqngly, although I have an opinion-that according to the strict interpretation of the rules of law, *the law is, that unless the overseas votes -of a special constituency, namely the Yukon constituency, were taken after the day of nomination in that constituency, which day was the 29th of- December, long after the whole general votes were taken overseas, then tho-se votes could not be counted at all. It is argued, in support of that, that, inasmuch as they were taken previously, commencing on the day of the general nomination, the 19th of November, those overseas voters had voted without a full knowledge, -a-t all events without official knowledge, of the candidates for whom they were voting. When I say that, I think I have said, in favour of the merits of contention, everything which has a right to consideration. That is a question of law; that may be called a cold-blooded question of law, and if there ever was something cold-blooded, in the nature of the legal interpretation, I think it is that.

But there i-s more than -that involved; there is involved the question of right and

justice; there is the question of the intent of Parliament, whatever be the specific interpretation of ,the law. There is the question of what, if that is the law, it is the duty of this Parliament to do in relation to the votes so cast. Was that duty not committed -to the committee? If it should be found, On a cold-blooded question of law, that the correct interpretation w-as that these votes must be all disregarded, was it not the duty of the committee to determine whether or not Parliament should allow that evidence to go forward and deny the franchise to one-fifth of the electorate of that constituency, o-r whether it was the duty of this House -to give to these men the franchise that it was within their power to exercise?

It has been argued on the part of some, as I stated before, that these men did not know officially who the candidates were, and that may be -quite correct. It is argued cu the part of others that these men knew vho the Government was, and who the Opposition was, and knew what the issue cf the election was, and to the utmost of the power reposed in them, under the law of Canada, exercised the franchise which was given to them; and if it should be found, in the determination of the law alone, that because they voted before the twenty-ninth day of December their votes should1 not be counted, then we would have to decide whether that was sufficient reason for the Parliament of Canada to say to them: "Because you voted without knowing who the candidates were we will legalize the franchise you exercised1 so far as it was in your power to exercise it." They voted for the Government or for the Opposition; they voted for or against the issue of conscription; they exercised the franchise to the full extent it was in their power to exercise it when they cast their ballot, and if we decide that having done so there is a legal objection to counting the votes, then what is the duty of Parliament in the premises? Is it the duty of Parliament to legalize those votes, or shall we say that on account of the fault of Parliament these men shall remain disfranchised throughout the life of this Parliament? That was the question submitted for determination to the Privileges and Election Committee by a resolution of this House. The Privileges and Elections Committee have made no report on that question at all, but on the motion of an hon. member of -the committee it was decided without discussion, and I blame no one for that, simply to refer the coldblooded question of law to the Supreme

207i5

Court of Canada or to two judges of the Supreme Court of Ontario.

Now in the first place the only way to submit a stated case, as was very clearly explained by the hon. member for Calgary (Mr. Tweedde), is for all the parties interested in that case to agree upon a wording, and then lay the case before the tribunal for determination. Who are all the parties interested in this case? Are they only the late hon. member for the Yukon, Mr. Thompson, and Mr. Congdon, the Opposition candidate. Is nobody else interested? Are the people of the territory itself not interested, irrespective entirely of the personal rights of these m.en? Are the voters overseas, some 325 men, not interested, entirely irrespective of the rights of Mr. Congdon and Mr. Thompson? Are they not to be represented in making a stated case to the Supreme Court or to two judges Of the Supreme Court of Ontario? And if they are to be represented, how are they to be represented, and who is to decide that matter? None of these questions are dealt with in this Teport. Furthermore, I contend that even if this House had adopted the report and went further, and did what the committee refused to do laid out the machinery by which this stated case would be prepared, and had the matter submitted to the Supreme Court, the Supreme Court would be compelled to decide they had no jurisdiction to try the case at all. From no other source can the Supreme Court have jurisdiction except from the common law of Canada and the statute law, and I argue that neither common law nor statute law gives the Supreme Court any jurisdiction to hear and determine a report from a committee of Parliament.

I do not think any elaboration of my own opinion would be very convincing to the House on a matter of this nature, but I take the liberty of quoting the opinion of the Deputy Minister of Justice on this point, which is to the effect that neither the Supreme Court of Canada nor any two judges of the Supreme Court of Ontario would have power to hear and determine such a matter, merely upon its submission by this House, as the report of the Privileges and Elections Committee. The opinion is contained in a memorandum to the Prime Minister dated May 15 and is as follows:

The Select Standing Committee of the Houses of Commons on Privileges and Elections, upon reference of the special return of the General Returning Officer to the Clerk of the Crown in Chancery concerning the Yukon election, recom-

131i I !*; '

mends that a stated case be prepared and submitted to the Supreme Court of Canada, or to any two judges of the Supreme Court of Ontario, for decision.

Obviously such a reference may be made only if it be within the jurisdiction of the court or the judges, either inherently or by statute, to determine upon such a reference the question submitted by the stated case. Now there can be no doubt til'it it is not at common law a part of the duty of the courts, or the judges, to determine questions referred by a committee of the House of Commons.

It is provided by the Supreme Court Act, section 61 that the court, or any two judges thereof shall examine and report upon any private Bill or petition for a private Bill presented to the Senate or House of Commons, and referred to the court under any rules or orders made by the Senate or House of Commons.

This section describes a jurisdiction somewhat analogous to that which the House of Lords exercises to put questions of law to the judges, the answer to which may be necessary to the House in its legislative capacity. The House of Lords also in its judicial capacity may consult the judges, but that power is exercised only for the purpose of obtaining advice with respect to the disposition of pending cases, and as to this the jurisdiction is different from any which is possessed by either House of Parliament in Canada. With respect to advice upon legislative questions the judges in England, as the cases show, have been very careful to confine their answers to the strict legal construction of existing statutes, and they have asked to be excused from answering questions which go beyond this. It will be perceived, however, that section 61 of the Supreme Court Act falls far short of enabling a committee of the House of Commons to submit a stated case with regard to an election return, and, except for section 61, there is no legislation authorizing the court or the judges to advise the House, or any committee. The business of the court is to determine questions raised between parties impleaded in judicial proceedings, and moreover no doubt to execute any judicial duty which may he imposed by statute but as the proceeding recommended by the committee is entirely novel and not within any jurisdiction which the court possesses, it is out of question that the court would decline to adjudicate upon any case submitted by the committee, or by the House upon the recommendation of the committee, and I apprehend that the only way m wnirh the committee's recommendation could he made effective would he by statute imnosing a new duty upon the court.

Words could not be clearer as to the opinion of the Deputy Minister of Justice on the jurisdiction of the Supreme Court to hear such a commitment did this Parliament adopt the report. So upon the score of that the court suggested would have no jurisdiction whatever to determine the issue if it were committed to it, on the score, secondly, that there is no method of putting the case to the court if they had jurisdiction, and on the score, thirdly, and most strongly of all, that it is the duty of a committee of this House to discharge an obligation imposed upon them by this

House and not to seek to evade that charge, and because this House is bound in justice to itself not to evade its duty until it has exhausted all its powers under a committee, I think we ought to adopt the motion of the hon. member for Calgary and refer the matter back.

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UNION

John Archibald Campbell

Unionist

Mr. J. A. CAMPBELL:

I am somewhat removed from the Yukon, and have to rely mainly on newspaper reports, but I understand from those reports that there was no real issue in the election in that constituency, as both candidates stood on practically the same platform as supporters of conscription and Union Government. Perhaps the minister will say whether I am misinformed.

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UNION

Arthur Meighen (Minister of the Interior; Superintendent-General of Indian Affairs)

Unionist

Mr. MEIGHEN:

I do not think the matter raised by the hon. member should affect the case now before Parliament, but on that matter there are very conflicting opinions

Hon. W. iS. FIELDING: Mr. Speaker, if we were dealing with the merits of this question we might bring it home to ourselves, in one of our nearby constituencies, without going to the far-away Yukon. Suppose that on the 19th November in any constituency in Canada the nominations were being made and somebody should come up and say: " Look here, Mr. Returning Officer, we thought this election was going on some time ago; we held a meeting in our district, we have been doing some voting and we propose that you shall count the votes given some weeks ago when there were no candidates in the field." What would the returning officer say? Surely he would say at once : " There is no candidate in the field until the candidate is nominated, and when there is no candidate in the field, votes can hardly be counted in an election which comes on later." That seems to me to be reason and common sense. But we are not called upon in any degree to go into the merits of this question here because it seems to he rather a legal question. I was somewhat surprised) at the argument put up by the Hon. the Minister of the Interior (Mr. Meighen) when he said the committee had no discretion in this matter. . We passed a resolution in this House referring the matter to a committee. I think I am justified in saying that in so doing we expressed no opinion at all. We simply referred this matter to the committee for inquiry and investigation. " No," says the Minister of the Interior, " we did not; we referred it to you with a command to

settle this question yourselves." Surely that cannot have been the spirit in which this House adopted the reference. Surely it was referred to the committee with the understanding that they should deal with it as they thought best. But even if there were that command given, even if they were instructed to inquire and come to a determination and if, in their judgment they should come to the conclusion that the matter was one which might properly be referred to the court, would they not be justified in reporting accordingly? Would my hon. friend the Minister of the Interior seriously claim that because of the words of the reference, because of the instructions that they were to inquire into the matter, and to reach a conclusion and report, they were thereby not permitted to make a report advising a reference to the court? 'The essence of this question, as between the two motions, seems to be this: The hon. member for West Calgary (Mr. Tweedie) desires that the matter shall be .settled by the House and by a committee ot the House. He says that he desires to refer this matter back to the committee in order that the committee of the House may settle it at once. In other words, he does not want any legal reference at all. On the other hand, the hon. member for Wright (Mr. Devlin) has proposed that this matter be referred to the higher courts. The essence of the question is whether this House desires to settle this .thing itself or whether it desires to obtain a judicial opinion on a judicial matter. That seems to me to be the essence of the whole question. If the machinery .whereby that judicial tribunal is to be created is dieifective, by all means let us try to make it effective. The essence of . the whole question is: " Shall we deal with this matter in the House or by a judicial reference?" On that question I do not believe there should be any hesitation in the mind of any reasonable man. Parliament has a long history in Tegard to the question of the trial of controverted elections. Away hack in the early times of the House of Commons of Great Britain from which we draw our inspiration and practice it was found inconvenient for the House to deal with these matters because many difficulties arose from that practice, and more than that, they obtained a distinctly partisan decision. And so, in the progress of time the procedure was changed and it was agreed that a committee should be chosen to deal with these matters. For some years the committee procedure was followed. But there again they found that they were using

partisan machinery to deal with questions which were not properly the subject of partisan consideration, After further years of progress it was decided that the committee system was wrong. I have a recollection of such cases' in our provincial legislature. One arose in Nova Scotia in my boyhood days long before Confederation, as a result of which party feeling and great personal bitterness existed for a long period afterwards. The case was tried by a committee of the House and a decision was reported favourable to one candidate and confirming in his seat the member who had been returned. I remember that a very distinguished statesman, who afterwards rose to great eminence in this House, when, in fater years another distinguished man was proposed to be made chief justice of Nova Scotia, declared in the political journal which he controlled that the latter was unfit-to be a judge in Nova Scotia because he had perjured himself in that election case. That is the kind of thing you get if you proceed to deal with these matters through a party tribunal in the form of a committee of the House. There have been some cases even in this Parliament in which it was felt that that procedure was very unsatisfactory and by the common consent of all parties this Parliament resolved that it was incompetent (to discuss questions of that character and that in fairness and justice all such matters should be referred to a judicial tribunal under the Controverted Elections Act.

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UNION

John Allister Currie

Unionist

Mr. CURRIE:

Will the hon. gentleman (Mr. Fielding) tell me when it was decided that Parliament was incompetent to settle these cases?

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UNI L

William Stevens Fielding

Unionist (Liberal)

Mr. FIELDING:

I cannot give my hon. friend the date of the Controverted Elections Act, but it was in the early days.

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L LIB
UNI L

William Stevens Fielding

Unionist (Liberal)

Mr. FIELDING:

I say that Parliament

decided it would no longer have the committee system and that there should he created a judicial tribunal for the performance of such duties. But Parliament has not absolutely dispossessed itself of authority in such matters. There are cases in which Parliament will still take action, but they are not cases which are purely matters of dispute between the parties. Take the ease in which an Irish constituency returned O'Donovan Rossa. It was reported to Parliament that he was a convict. He was known to be a convict, and not only a convict but actually in prison. There arose

a question as to whether he should he debarred from taking his seat. It was argued that he was not qualified to take his seat, and Parliament decided that it would not allow him to take his seat. There was no dispute as to the validity of the return; it was a question of qualification or disqualification, and it was therefore a question with which Parliament itself should deal. John Mitchell was returned by acclamation for Tipperary. John Mitchell was an escaped political convict, and Parliament decided that he was disqualified. There was no dispute as to the return, but Parliament determined that he was not qualified and it ordered a- new writ to issue. John Mitchell became a candidate again mation, and I would ask hon, members to observe the distinction which Parliament made. John Mitchell having been elected by acclamation, there was no question as to the procedure (by the returning officer; it was purely a question of qualification, and the House of Commons decided that it should have the say as to that. But when John Mitchell became a candidatae again he was opposed, and the question became more than one of qualification; it became a question of dispute between two' candidates. Then Parliament said: "It is not a matter within our power; that must go to a judicial tribunal."

Some years ago a very famous case occurred in this House, commonly known as the King-Baird case. It will be admitted by anybody who reads the evidence that a/11 the facts in that case were in favour of Mr. King. But Mr. Baird had been declared returned by the returning officer. The issue was threshed out, and, it became more or less a matter of party -controversy. However, the conclusion reached was that Parliament ought not to take any action. Sir John Thompson, who was then Minister of Jus' tice, made a very strong argument based simply on the ground that it was a judicial matter in which Parliament should not interfere. Now the equities were so strongly with Mr. King that public opinion forced Mr. Baird, although he was sustained in his seat, to resign' and be again elected. But notwithstanding that the case, in point of equity, was so strongly in favour of Mr. King, Sir John Thompson took the ground: this is not a question for Parliament, hut one for the judicial tribunals of the country. I do not think this should be a matter of party controversy. We are going to make precedents in this matter to-day, and hon. gentlemen on both sides should be

chary of creating precedents that may be embarrassing in the future. If there is one thing more than another which has been clearly understood' it is that the House of . Commons of Canada ought not of itself to undertake to deal with questions of this kind, because of the danger of partisan-snip entering into the matter, and, therefore, Parliament would be acting wisely in determining upon a reference to the judiciary of the country. If the machinery by which that can be done .is not effective, let us improve it, but let us not try to settle the matter here in violation of the long traditions of Parliament, which declare that the courts, and not the House of Commons, are the proper authorities to decide matters of this kind.

At one o'clock the House rose.

Tlje House resumed at three o'clock.

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L LIB

Ernest Lapointe

Laurier Liberal

Mr. E. LAPOINTE (Kamouraska):

Mr. Speaker, the House is certainly indebted to the hon, member for Queens and Shelburne (Mr. Fielding) for having put this matter before it in its proper light. As he rightly said, the report of the Committee on Privileges and Elections was certainly not a refusal on the part of the members of that committee to deal with the question referred to them by the order of reference of this House. The order of reference reads:

That the Special Return of the General Returning Officer to the 'Clerk of the Crown in Chancery for Canada concerning the election of a candidate to serve in the House of Commons for the Yukon Territory be referred to the Select Standing Committee on Privileges and Elections with power and authority to consider the same and the several documents therein alluded to and to report their conclusion and determination thereon to this House.

The Minister of the Interior (Mr. Meighen) to t'he contrary notwithstanding, the Committee on Privileges and Elections have considered the matter referred to them, a.nd they have reported their conclusion and determination, to the House. After having heard the arguments of both parties, they have determined that the question resolves itself into a mere question of law, and that it should net be left to the members of the committee, which may be a partisan committee, to decide, but that it should be decided by judicial authority. That is the gist of the ease. I am not concerned as to whether the drafting is defective; that may easily be remedied by the House. Even, if an Act of Parliament is necessary to give effect to the views of the Committee on

Privileges and Elections, such an Act may very expeditiously be passed.

The question as to who is to represent a particular constituency in the Canadian House of Commons is of very great importance. It is just as important a question as whether a county'will be represented at all, and interests not only the people of the particular constituency affected, but the people of the country as a whole. All citizens of Canada are interested in the ability, integrity, qualifications and standing of all and any of the members of the House of Commons. So the question of considering the conflicting claims of two gentlemen who assert their right to a seat in this House must be dealt with without any party spirit and free from all political bias on the part of the members of this House. By the Dominion Controverted Elections Act, this Parliament, following the precedent of the British Parliament, has left to judicial authority the decision of all questions relating to controverted elections. The principle goes to the extent, as is asserted by British constitutional authority, that the only question which Parliament has reserved to itself to deal with is the question as to whether a proper or fit person has been returned in obedience to the writ. I will quote the words of the late Sir John Thompson, then Minister of Justice, uttered in the House of Commons in 1887, as found on page 157 of Hansard of that year.

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UNION

John Hampden Burnham

Unionist

Mr. BURNHAM:

Would the hon. gentleman allow me to ask him if he does not consider that the whole question is comprised in the disenfranchisement or otherwise of the soldiers?

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L LIB

Ernest Lapointe

Laurier Liberal

Mr. E. LAPOINTE:

I will deal with

that later on. Here are the words of the late Sir John Thompson:

Since the change which I have referred to, and 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 the 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 disqualification of persons who have been returned to Parliament. As was said by Sir Henry James, in 1882, in the oase of Michael Davitt, the only question which Parliament has reserved to itself to deal with is the question whether a proper person has been returned in obedience to the writ As was explained by Lord Coleridge and Lord Selborne in a previous debate in 1870, that reservation is not in conflict with the Statute which says that the election shall only be contested by an election petition, because the House has to consider whether the writ has been obeyed which com-

rnanded the electors of the shire, or the county, to return a suitable person to sit in that House. The House, therefore, is still seized of the right to decide whether the writ has been obeyed by the election of a person who is tit and proper to sit in that House. But as soon as the question has been decided as to the qualification of the person so returned, 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, or with the conduct of the returning officer, has been relegated to the judiciary, and the House has always declined to exercise its functions and its power to interfere.

I shall also quote the words of May in his "Parliamentary Practice:"

Before the year 1770, controverted elections were tried and determined by the whole House of Commons, as mere party questions, upon which the strength of contending factions might be tested.

In order to prevent so notorious a perversion of justice, the House consented to submit the exercise of its privilege to a tribunal constituted by law, which, though composed of its own members, should be appointed so as to secure impartiality, and the administration of justice according to the laws of the land, and under the sanction of oaths. *

Further on he says:

This principle was maintained, with partial alterations of the means by which it was carried out, until 1868, when the jurisdiction of the House, in the trial of controverted elections was transferred by statute to the courts of law.

In this country this principle has been accepted in our Dominion Controverted Elections Act. Section 91 of that Act says:

All elections shall he subject to the provisions of this Act, and shall not be questioned otherwise than in accordance herewith.

And this applies, Mr. Speaker, even when no return has been made. Section 11 of the Act says:

The petition presented under this Act may he in any prescribed form; hut, if or in so far as no form is prescribed, it need not he in any particular form, but it must complain of the undue election or return of a member or that no return has been made, or that a double return has been made, or of matter contained in any special return made,

And so on. And Section 8 says:

Whenever a petition under this Act, complaining of no return, is presented, such order may be made thereon by the court as is deemed expedient for compelling a return to he made.

So Ithat the matter of controverted elections is entirely left to judicial authority, - whether a return has been made by the returning officer, or whether no return at all has been made.

Of all cases, Sir, it seems to me that the present instance should he decided according to that principle. There are no questions of fact discussed or even challenged. The Act of 1917 amending the election law must

I respectfully submit that the judicial authority, not this Parliament, is the only [DOT] proper authority to interpret the statute passed last year. Let me ask members of the House this simple question: Do they consider that they are as well qualified as the members of the Supreme Court of Canada to interpret a law or to decide a case arising from the interpretation of a law, either from the point of view of legal knowledge, of judicial experience or even of impartiality? For my part, I admit that my qualification for that duty is not equal to that of the Supreme Court of Canada. I have my views on the matter; perhaps I may state them in a few words. It is the essential factor of an election that there should be candidates. Without candidates there can be no election. It necessarily follows that votes registered at a time or in a county when or where there is no candidate have no legal value, are worth no more than blank pieces of paper. That is my opinion, but I am willing to abide by the decision of the Supreme Court of Canada..

The first principle of responsible Government is the right to vote for a particular candidate and for the man. That rule has never been departed from in any country under the British flag. It was departed from to a certain extent for the first time at the last election, but even then it was provided that the electors could vote for the man. But in the Yukon case the voters did not have that right until after December 31, 1917; therefore all votes cast before that date are contrary to law and contrary to the rights of the parties. But I repeat that I am willing to leave the decision of this [DOT]matter to judicial authority.

As to the jurisdiction of the Supreme Court of Canada to deal with a case of this kind, I do not think that there is any difficulty. Even the Minister of the Interior

(Hon. Arthur Meighen) and the gentleman who wrote the letter that he quoted this morning, have said that Parliament could pass a law conferring such jurisdiction on the Supreme Court. He could not say otherwise, because section 43 of the Supreme Court Act says:

Notwithstanding anything in this Act contain-*ed the court shall also have jurisdiction as provided in any other Act conferring jurisdiction.

It would be very easy to pass an Act to confer such jurisdiction on the court, but I submit that that is not necessary. Section 60 of the Act provides that the Governor in Council may refer the decision of a question of law to the Supreme Court. It says:

* Important questions of law or fact touching the constitutionality or interpretation of any (Dominion or Pirovincial legislation may be referred by the Governor in Council to the (Supreme court for hearing and consideration.

Surely the present case, which touches the interpretation of a Dominion statute, could, under this provision, be referred by the Governor in Council to the Supreme Court of Canada. I am surprised that instead of passing the Order in Council of February 26 referring this matter to Parliament the Government did not adopt the simpler method of dealing with it by referring it to the Supreme Court of Canada. Let no hon. gentleman tell me that the Governor in Council only can do that. Surely Parliament is superior to the Governor in Council. If an Order in Council is necessary to the marking of such a reference, surely this House may instruct or even order the issuing of such an order. The executive power is the servant, not the master, of the legislative power. However objectionable the assertion may be to their pride, ministers of the Crown are the servants, not the masters of Parliament. Surely a decision of this House confirming the decision of the Committee on Privileges and Elections is equivalent to an instruction to the Governor in Council to refer the matter to the Supreme Court of Canada, which they have the power to do under the Supreme Court Act.

The decision of the Supreme Court in this matter would be easy of execution. They would either instruct the returning officer to count or not to count the challenged votes, or instruct the Clerk of the Crown in Chancery to declare Dr. Thompson or Mir. Congdon duly elected. Shorn ' of all legal technicalities, the question is, can the votes which were given and registered previous to the nomination of candidates-in other words, when there

were no candidates-be counted under the law of the country as it is to-day? I respectfully submit that the matter of deciding this question does not pertain to the members of the Committee on Privileges and Elections, or to the members of this House. I strongly urge members of the House not to take a step backwards, but to act according to constitutional usage and ahthority and to leave the decision of such an important question to the judiciary of the land.

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Right Hon. S@

My hon. friend (Mr. E. Lapointe) attaches a meaning to the report of the Committee on Privileges and Elections and to the amendment moved by the hon. member for Wright (Mr. Devlin), which it is rather difficult to follow. Both the report and the amendtaent, if adopted by this House, would be admittedly ineffective so far as the two judges of the Supreme Court of Ontario are concerned, and, unless the Governor in Council should act according to my hon. friend's suggestion-I will deal with that a little later- they would be equally ineffective so far as the Supreme Court of Canada is concerned. Does my hon. friend (Mr. E. Lapointe) suggest that the Governor in 'Council, or this House, has without special legislation, power to refer this matter to two judges of the Supreme Court of Ontario. The hon. member for North Cape Breton and Vic-1 toria (Mr. McKenzie) who moved the resolution in the iCommittee admitted that, according to his view, the Committee on Privileges and Elections and not the Governor in Council should have prepared the stated case. Hon. gentlemen who have dealt with this matter do not seem quite to understand what it is they do suggest. Let us, in the first place recall the fact that this matter came into this House by reason of a special return which did not declare any candidate elected for the Yukon territory. Having come into this House on the report of the General Returning Officer, it was referred by unanimous consent, as the House deemed proper to refer it, to the 'Committee on Privileges and Elections. I repeat that, according to my conception, the Committee on Privileges and Elections have made to this House a report which is both impracticable and ineffective, and for that reason I think it ought to be referred back in order that they may make a report such as the House contemplated when the reference was made in the first instance. The question came into this House upon a special return.

The House had the light to deal with that return. The Committee on Privileges and Elections, to whom the matter was referred, had the right to deal with it, and that Committee have left the matter just about where it was in the first instance, I have already said that no hon. gentleman in this House would for one moment contend that this report or the amendment could be carried out in its literal terms. Both the report and the amendment suggest that this matter may be left to two judges of the Supreme Court of Ontario. Those who vote for this amendment vote tneir belief that this House can properly refer the matter to two judges of the Supreme Court of Ontario, or that the Governor in Council could do so. The matter would degenerate into a farce if the Governor in Council attempted to do anything of the kind, because everyone in this House knows perfectly well that the Governor in Council has no .such power. So far as the Supreme 'Court of Canada is concerned, neither the report nor the amendment suggests that the Governor in Council should take any action.

The purport of the motion in committee of the hon. member (Mr. McKenzie) was that a committee of this House should refer the question to the Supreme Court of Canada. Neither this. House nor the Committee on Privileges and Elections has any such power without special legislation. So- far as the Governor in Council is concerned, I do not concur in the view expressed by the hon. member for Kamouraeka (Mr. E. Lapointe) that this is in contemplation of section 60 of the Supreme Court Act. On the contrary, I am impressed with the view taken 'by the Deputy Minister of Justice. It seems to me it was not the intention of that Act to refer controverted election matters.-'because this practically amounts to that-to refer questions Ibetweeni parties, although these matters concern this House as well-to the Supreme "Court of Canada for determination under section 60 of the Supreme Court Act. No. such jurisdiction has ever been exercised by the Governor in Council in such matters in the past, and I venture to believe it was not the intention of the Act that they should be so referred.

Just one or two words more. My hon. friend (Mr. E. Lapointe) speaks of any action toy this House or by a committee of this House, which would not be based upon an exact and literal interpretation of the Military Voters' Act or the War-lime Elections Act, as quite immoral.

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L LIB
UNION

Robert Laird Borden (Prime Minister; Secretary of State for External Affairs)

Unionist

Sir ROBERT BORDEN:

Does my hon. friend understand that any member of this House during the past session, when those Acts were passed, had it in contemplation that, by reason of such conditions as he has alluded to, three or four hundred men-I forget how many-who have gone overseas to fight for this country and who, equally with the other 300,000 had the right to vote, should be deprived of their franchise? That,

I think, is a pretty important question to take into consideration. This House has rights; the people of this country have rights, and the men who, under the terms of that Act, according to its true intention, were to have the right to vote, must also be taken into consideration when this matter comes to foe determined, and the matter could not Ibe put more clearly than it was put before the Committee on Privileges and Elections by Mr. Congdon, one of the candidates at the recent election in the Yukon. This is what Mr. Congdon said on the 7th of this month before that committee:

There cannot be any doubt that even under the Controverted Elections Act of Canada the [DOT]House of Commons still has jurisdiction over election matters of this kind; that was evidenced by the fact that even in the case of an election petition before a court established under the Controverted Elections Act. the court might report to Parliament, which enables Parliament to go further than any decision which could possibly be given by the court and to come to a conclusion such as the court could not possibly arrive at. The commonwealth is interested in the service of every member of [DOT]the Commons' House of Parliament, and the court and the council of State and Justice of [DOT]which this Committee is the representative is governed by rules of state and law peculiar and more high and more politic than those which govern the court in cases of any matter between party and party. For this reason it ' has always been the practice in regard to matters of this kind not to be scared away by technicalities, not to be hampered by rules which might be binding in courts of Justice, hut to go straight to the heart of the matter, and determine what is just in regard to the matter in dispute.

I do not think the matter could be put in more cogent terms. I may he permitted to recall the attention of the hon. member for Kamouraska to the fact that the Act in question deliberately sanctioned the vote by men overseas, not for a particular candidate, hut for one party or the other in this House. That was the purpose of this Act. Men were authorized to vote either for the Government or the Opposition; and for the very reason that it might, in some instances, be impossible for those men to know who was the particular candidate sup-

porting the Government or the particular candidate supporting the Opposition, that provision was inserted in the Bill presented to the House. For that reason, Parliament sanctioned that principle, and even if there be such a technicality as that hon. gentleman relies on, I think that statute, interpreted, according to the language of Mr. Congdon before the Committee on Privileges and Elections, might not necessarily result in the disfranchisement of three or four hundred gallant men from the Yukon who have fought the battles of this country overseas and who have the same right to be heard in the determination of their representative' in this Parliament as any other man in this country or any other soldier overseas. My hon. friend from Shelburne and Queens (Mr. Fielding) has addressed certain observations to. this House with the greater part of which I agree, but I venture to think that the very argument which he put forward constitutes one of the strongest reasons for referring this matter back to the Committee of Privileges and Elections. He says that if it is necessary, for the purpose of doing What is right and just and fair in this matter, let us have special legislation. Well if we are to have special legislation was it not the duty of the Committee on Privileges and Elections to suggest that to us; and to prepare a draft of that necessary legislation and report it to the House? Instead of doing that they have brought in a report which I repeat is in its terms both impracticable and ineffective. The committee in short has not discharged the functions conferred upon it by this Parliament when the special election return was referred to it, and under those circumstances I think it is eminently right and proper that the report should be referred back for further consideration by that committee. If the committee reaches the conclusion that there should be special legislation one way or the other-special legislation to assure to these soldiers the right to the franchises which Parliament undoubtedly intended to confer upon them, or special legislation for the purpose of making it abundantly clear that some court in this country shall have the power to determine this matter-then let the Committee on Privileges and Elections take that matter into consideration, prepare their draft of the proposed legislation, and report it to the House. For the reasons which were urged by my hon. friend from Shelburne and Queens, if for no other reason, I would think that the report should be referred back. I am content to leave the matter there, pointing out to my hon. friend who has last spoken (Mr. E.

Lapointe) that it never was the intention of this Parliament from first to last to deprive a single man of those 300,000 who are overseas of the right to vote because he did not happen to know who the candidate was. That I repeat never was the intention of Parliament from first to last, and if there is any technicality in the statute by reason of which the postponement of the election in the Yukon will bring about a different result from that which would have been brought about if that particular contingency had been foreseen and provided for in clear terms in the statute, I still think it is the duty of this House to take very carefully into consideration whether or not they are to sanction the disfranchisement of the soldiers who have voted and whose right to vote is now called in question.

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May 16, 1918