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

Mr. Speaker, I desire to

move to-day the motion which has stood in my name for some days:

That notwithstanding the report of the Clerk of Petitions the petition of James Arthur Collins presented to the House on the 27th day of May, 1926, be read and received.

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

Before my right hon.

friend rises to speak on this motion I would like to get the ruling of Your Honour as to whether the motion can properly be entertained by the House. As I understand the matter the prayer of the petition is identical with the one which was held to be of a character which could not be received by the House. , If that be the case, this petition is in the same category.

Mr. MEIGHEN:

All I need contend is

that there is certainly no rule which prevents the House from deciding itself whether a petition be read and received or not, and that is what this motion says.

Hon. ERNEST LAPOINTE (Minister of Justice):

So far as I can ascertain from instances in which similar petitions have been presented to this House, in each of those instances of which there are two, only one of them being in the records of this House, His Honour the Speaker has ruled that the petition should not be accepted for reasons given by him in his ruling. Therefore it is for Your Honour to decide whether or not this -petition should be received, subject of course to an appeal from your ruling as was done in regard to a similar petition a couple of weeks ago while I was not here.

Hon. GEORGE H. BOIVIN (Minister of Customs and Excise): If I understand the

matter correctly it has already been decided by the Examiner of Petitions and, I think, ruled by Your Honour that the essential part of the prayer of the petition presently before -the House and about to be considered in the debate on this motion is identical with the one refused by Your Honour a few weeks

previously. If that be the ease the present motion is nothing but a renewal of the appeal taken by the right hon. gentleman himself against you-r ruling when it was first made. I ask myself if this second appeal from a ruling of the Speaker in the form of a motion is in order. I beg to remind Your Honour of the well known passage in both Bourinot and May which says that a matter which has once been deBhted and discussed, which has once been decided by the House of Commons, cannot be revived for debate or discussion during the same session. In my humble opinion the motion which is now before the House is merely a request that the House itself decide that your ruling was wrong; in other words, that the House vote again upon -a matter upon which it has already voted. I claim that that is not in order.

Mr. MEIGHEN:

The ground I stated first is the ground upon which I stand, namely, that there is no rule which prevents the House from deciding whether a petition be read and received or not. Moreover this petition differs from the other petition in two very important respects. It sets out a ground which was not set out in the other petition, a ground which goes to the very root of the judgment given by Your Honour in respect of the other petition, namely, which discloses, if it can be supported, that this parliament has not relegated to the courts, but on the contrary has forbidden the courts to try such a question as is raised in this petition, has disarmed and disempowered the courts so that, we cannot go there and present the evidence essential to establish our case.

That ground is recited in this petition; it was not in the other petition. I cannot emphasize too strongly the fact that not only does it go to the heart, but it is the heart of the whole problem for the reason that we have nowhere else we can go. Further the petition asks that this House review the conduct of its officers and that the House apply such remedy as it sees fit, the remedy not being specified in the petition. Surely such a petition could be received; but beyond 11 that my contention is that a motion to read and receive a petition is in order. Any motion is in order in this House; I do not know of any motion that is not in order. An hon. member can move as he desires. The Speaker certainly can rule on the form or matter of the petition, but a member has the right to move anything he desires whether it is before the House or not. If it is not, he can put it before the House by a motion.

Peace River Election

Mr. SPEAKER:

I have carefully studied

this question since the motion appeared on the order paper and I will now give the decision which I have reached. In this case the Right Hon. Mr. Meighen has the right to make a motion that the petition be received, which is the common form of motion in regard to public petitions, and it could also be made as a matter of privilege. The right of petitioning the House is an old and established principle to be jealously preserved.

A distinction, however, must be drawn between petitions relating to matters of public interest and those relating to controverted Elections. In the former case, the right of petition is unimpaired. In the latter, it is clear that a petition complaining of the undue election of a member and questioning the right of an hon. member to his seat, cannot be received by the House, as such a petition is in conflict with the letter and spirit of the statutes respecting the trial of controverted elections. The House in this case has no jurisdiction to interfere.

The amended petition in this case has two distinct requests. The first relates to the conduct of certain electoral officers, and is unquestionably within the jurisdiction of the House. The House retains its power over its own officers, and will receive a petition that prays that the House of Commons will investigate the conduct of the Chief Electoral Officer, the deputy returning officers, or other officers, in any particular.

The second request is essentially a different matter, and a very serious proposition, that such officers shall be authorized to take such action as may be requisite to secure the return to the House of any one of the candidates at an election. There is here involved, in another form, the same controversial question as to an election which is now pending before the tribunal established by law for the decision of such questions. Parliament has never entrusted such duties to its officers. By statute the judges are to decide such matters.

Part of this prayer is within the jurisdiction -of the House, and part beyond that jurisdiction. It seems to be a case where the House cannot afford any practical relief, or investigate the complaint except in a limited degree as respects its own officers. Such a petition may be ordered to lie on the table on the ground that the relief prayed for is partly within the power of the House, though not likely to be afforded.

It is for the House to judge and determine whether this petition should lie on the table and thus become one of the permanent records

of the House. The House has always maintained the undoubted constitutional rights of the people to complain of grievances, and to pray for their redress, but while that is so, the House itself must take into serious consideration the question of devolving upon its officers such large responsibilities as are involved in the prayer of this petition.

I have asked the House to take this responsibility, notwithstanding that I have already ruled that the petition as first presented though differently drafted was not receivable, not because I believe that ruling to have been wrong, but for the reason that I find in Black-more's Speakers' Decisions, 1857-1884, a case somewhat similar to that now in question. At page 238 there appears a ruling by Mr. Speaker Brand from which I quote:

In the event of a special report from the Public Petiitions committee,-

I may observe here that in the British parliament there is no officer corresponding to our Examiner of Petitions, but there is a Public Petitions committee.

-in reference to a petition, the House, not the Speaker, decides whether it should lie upon the table.

I need not enter into details, but after a lengthy debate Mr. Speaker Brand said:

It is for the House, and not for me, to judge and determine whether the petition now under the consideration of the House should lie upon the table, and thus become one of the permanent records of the House. The House has always maintained the undoubted constitutional rights of the people to complain of grievances, and to pray for their redress; but that right may be abused, and the question for the con_ sideration of the House now is, whether the petitioners in the present case have not abused the right of petitioning, which they undoubtedly possess.

This is the only point on which the House is called upon to declare, and for that reason I leave the responsibility to the House.

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

I regret very much that owing to the action of the administration the culmination of the present question has been so long delayed, and I add to that a regret that because of my owrn absence-

Mr. SPEAKER:

May I interrupt the righr hon. member? As the debate proceeds it is possible that frequent reference will be made to the contents of the petition. The ordinary usage under the rules in the British House of Commons-there are precedents on the point-is for the petition first to be read by the Clerk of the House. See Blackmore's Speaker's Decisions, page 235, a ruling by Speaker Brand in the Tichborne case. Perhaps the hon. member for Wtest Calgary (Mr. Bennett) would move that the petition be read by the Clerk.

Peace River Election

On motion of Mr. Bennett the Clerk Assistant read the petition as follows:

To the Honourable the members of the House of Commons in parliament assembled.

The (petition of the undersigned, James Arthur Collins, of Chisholm, in the province of Allberta, lumberman,

Humbly sheweth:

1. That an election was held on the 29ith day of October, A.D. 1925, for the electoral district of Peace River, to elect a member to represent the said electoral district in the House of Commons of Canada.

2. That the candidates at the election were: Donald Macbeth Kennedy, William Archibald Rae, and your petitioner, James Arthur Collins.

3. That Edward Henry Sheppard was the returning officer at said election, and on the 26th day of November, A.D. 1925, declared the said Donald Macbeth Kennedy duly elected to represent the said electoral district in the fifteenth parliament of Canada.

4. That pursuant to the provisions of the Dominion Elections Act, in that behalf, a recount of the votes cast at the said election was held from the first until the eighteenth days of December, 1925, at the city of Edmonton, by His Honour Judge Mahaffy, and at the conclusion of said recount the said judge certified that 3,986 votes had been cast in favour of Donald Macbeth Kennedy; 3,944 votes had been cast in favour of William Archibald Rae; and 3,969 votes had been cast in favour of your petitioner, James Arthur Collins, and directed that the said Donald Macbeth Kennedy be declared elected to represent the said electoral district in the fifteeth parliament of Canada by a majority of seventeen votes over your petitioner.

5. That on the second day of January the said Donald Macbeth Kennedy was gazetted as the member returned for the electoral district of Peace River to serve in the House of Commons of Canada, and he has taken his seat in such House of Commons.

6. That on or about the 26th day of February, A.D. 1926,. proceedings under the Controverted Elections Act were taken by one John B. Page against the said Donald Macbeth Kennedy, but no suioh proceedings have been taken by your petitioner, or by anyone on his behalf.

7. That at the said election, the said electoral district of Peace River was subdivided into 298 polling divisions, number four of such divisions being known as Brule Mines poll.

8. At the final recount by His Honour Judge Mahaffy, as aforesaid, showed that at Brule Mines poll, being poll number four as aforesaid, twelve votes were oast in favour of Donald Macbeth Kennedy and 127 votes in favour of William Archibald Rae, and twenty-one votes in favour of your petitioner.

9. That at least 111 electors voted for your petitioner at Brule Mines poll, No. 4, aforesaid, but through the action of the deputy returning officer, one Peter A. Robb, and other persons, to your petitioner unknown, ballots were fraudulently manipulated to produce the result mentioned in the next preceding paragraph of this petition.

10. That on or about the 18th day of January, 1926, the said Peter A. Robb, deputy returning officer, aforesaid, was charged before the Honourable Chief Justice Simmons of the trial division of the Supreme Court of Alberta.

"For that he, the said Peter A. Robb on or about the 29th day of October, A.D. 1925, at polling division No. 4 at Brule Mines in the province of Alberta, at an election held under and by virtue of the Dominion Elections Act for the election of a person to serve in the House of Commons of Canada in and for the electoral district of Peace River, in the province aforesaid, did fraudulently destroy a number of ballot papers used by voters at the time and place aforesaid.

And also for that he, the said Peter A. Robb, on or about the 29th day of October, A.D. 1925, at polling division No. 4, at Brule Mines, aforesaid, at an election held under and by virtue of the Dominion Elections Act for the election of a person to serve in the House of Commons of Canada in and for the electoral district of Peace River, did fraudulently put into the ballot box, used in connection with the said poll, papers other than the ballot papers which he, the said Peter A. Robb, was authorized by law to put in the said ballot box.

And also for that he, the said Peter A. Robb, on or about the 29th day of October, A.D. 1925, at polling division No. 4 at Brule Mines in the province of ALberta at an election under and by virtue of the Dominion Elections Act for the election of a person to serve in the House otf Commons of Canada in and for the electoral district of Peace River in the province of Alberta and being a deputy returning officer at said polling division No. 4 did fraudulently put otherwise than as authorized by the said Dominion Elections Act, his initials on the back of papers purporting to be, or capable of being used as ballot papers for the said election," to which said charges the said Peter A. Robb pleaded, "Not guilty."

11. That the trial of the said Peter A. Robb commenced at Edmonton, Alberta, on Monday, the 29th day of March, 1926, before the Honourable Mr. Justice Walsh of the trial division of the Supreme Court of Alberta and a jury, and at the conclusion of the said trial on the first day oif April, 1926, the said Peter A. Robb was found guilty iby the said jury on all the three charges aforesaid (as amended at the said trial) and was sentenced by the Honourable Mr. Justice Walsh to imprisonment for [five years in the penitentiary at Prince Albert with hard labour, for each of the said offences, such sentences to run concurrently. A certified copy of the proceedings at the said trial accompanies this petition. .

12. That the evidence of a number of electors who voted at Brule Mines poll No. 4 aforesaid was given at the said trial referred to in paragraph 11 hereof; that in giving their evidence the said electors stated for whom they had voted and thereby established that the said Peter A. Robb dad fraudulently destroy a number of ballot papers used by the said electors, that he, the said Peter A. Robb, did fraudulently put into a ballot box used at the said .poll, papers other than the ballot papers/ which he was authorized by law to put in the said ballot box, and also that he the said Peter A. Robb did fraudulently put otherwise than as authorized by the said Dominion Elections Act his initials on the back of papers purporting to be or capable of being used as ballot papers for the said election.

13. That absolutely essential evidence available t.o your petitioner to establish the fraudulent manipulation of ballot papers at Brule Mines poll No. 4 aforesaid is necessarily that of the said electors who voted at such poll and gave their testimony at the trial of ithe said Peter A. Robb.

14. That said electors who voted at Brule Mines poll No. 4 aforesaid cannot under (the law be permitted to give evidence as to how they voted at the said election in proceedings under the 'Controverted Elections Act or in any legal proceedings other than in criminal cases.

15. That consequently there is no tribunal in the Dominion of Canada with power to make the inquiries necessary to establish the facts alleged in this petition or with jurisdiction to provide the remedy for the wrong which has been done your petitioner other than the House of Commons of Canada.

Peace River Election

16. That the fraud and irregularities complained of herein were the fraud and irregularities of an officer or officers of the House of Commons of Canada committed prior to, at and subsequent to the taking of the vote of the electors and the closing of the said Brule Mines poll No. 4.

17. That the fraud and irregularities of the said officer or officers deprived your petitioner of his seat in the House of Commons for said electoral district of Peace River, your petitioner having at the said election held on the 29th day of October for said electoral district received more votes than did either the said Donald Macbeth Kennedy or William Archibald Rae.

Wherefore your petitioner prays that the House of Commons will investigate the conduct of the Chief Electoral Officer of Canada, the returning officer for the electoral district of Peace River, Edward Henry Sheppard aforesaid, the deputy returning officer, Peter A. Robb aforesaid, and such other officer or officers as may be necessary in connection with the establishing of a polling place at Brule Mines poll No. 4 aforesaid, and the talcing of, the counting and recounting the votes cast at such poll in the electoral district of Peace River aforesaid, and that such Chief Electoral Officer, returning officer, deputy returning officer or other officer or officers be directed to take such action as may be requisite and necessary to secure the return to the House of Commons of the candidate who secured the greatest number of votes cast by the electors of the electoral district of Peace River on the 29th of October, 1925, aforesaid, and for sudh other and further relief as may seem meet in the premises.

And your petitioner, as in duty bound, will ever pray.

(S) Jambs Arthur Collins.

Witness:

Lyda S. Roche.

Mr. MEIGHEN:

I was about to express

my regret that, due to absence, I was not able to move this motion as soon as I should like to have done. It is a motion which peculiarly calls for immediate decision. Hon. members will recall the debate which took place in this House some days ago. Inasmuch however as that debate was merely on' the point of order, it was not one which had been thoroughly prepared in advance and such as hon. members are entitled to before taking the responsibility of so far-reaching and serious a decision as is involved in the rejection of a petition of this character. In the course of that debate, however, some consideration was given to the state of our constitution and practice as related to inquiry into matters affecting an election or post-election proceedings under the charge of officers of parliament. Several authorities were quoted with a view to showing that parliament had disrobed itself of jurisdiction not only to inquire into any matter that had some connection with an election, but of jurisdiction to receive a petition praying for relief in respect of injury brought about by officers of parliament.

The cases recited narrow down to a very limited number, and naturally they are all of a date subsequent to the passage by this parliament of our Controverted Elections Act. As everyone is aware, prior to the passing of

that act in 1873, as prior to the passing of the British act at an earlier date, election petitions, that is to say, petitions going to the very character and method of the conduct of an election, were tried by special committees of this House and of the British House respectively under formulated rules. This process in course of time became not only burdensome but inappropriate, and in Britain, as here, legislation was passed which relegated this duty to the courts and for the most part, if not altogether, empowered the courts to discharge the duty so relegated. The case quoted first of all was some ruling as to the receipt of a petition which at the present time we do not need further to take into account, but which really had no relevancy to this case at all, as I will later show with the utmost plainness. Another case was quoted which showed that parliament would not consider an appeal by a litigant in a controverted elections case to have the House of Commons reverse the judgment of the court. I never for a moment would question the propriety of that decision. It also has no relevancy to this case whatever.

Then came what is known as the Baird case in 1887, and to this I hasten because it is really the controlling factor of this whole problem, and a proper understanding of the speeches made in this House in connection with the Baird case will indeed enable hon. members who come to the question dispassionately to arrive at a conclusion upon this motion and the proceedings which should follow this motion with little or no difficulty. Very able addresses were then presented to parliament, some of which have been quoted; hon. members of the Liberal party of that day argued with great ability that parliament had not relegated anything to the courts save such things as theretofore had been tried and disposed of by committees, that there were many things that parliament disposed of without the committees, and that consequently these were still within the purview of parliament. I do not need to review the discussion on that phase of the matter; I only emphasize the fact that most of the discussion took place on that point. I take the view, which I be->'eve to be thoroughly upheld by the Baird case, that parliament has not, to express it exactly, emptied itself of jurisdiction in this matter at all; I take the view that parliament has not emptied itself of jurisdiction in respect of any election matter or any matter affecting the right of a member to sit in this House. What parliament has done is to make it the duty of the courts to exercise that jurisdiction; the courts have been empowered to do so and consequently, as expressed by

Peace River Election

Sir John Thompson in his argument on the Baird case in parliament, the task and duty was relegated to the courts. That being so parliament should not itself re-exercise that right. With Sir John Thompson's words in that respect I am in complete accord, and hon. members will later see why I take such pains to emphasize this point.

I pause to remark, although I do not need to establish it to justify or indeed compel, so far as arguments can compel, this House to pass this motion, that the point itself is of consequence as being very closely related to the merits of the motion now before parliament. I want to read the words of Sir John Thompson in this regard, and it is to be noted that his language was very carefully selected indeed. He says:

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.

The implication is plainly that the power still remains, but that its exercise would be a wrong constitutional practice. I need not go further than that in support of the statement that parliament has relegated to the courts not only the duty but the power to try any matter connected with elections save as to the qualifications of the elected candidate. So far as parliament has done that I do not argue that parliament should re-assume that jurisdiction. In a word, so far as the courts have power they should act, but the courts certainly have no power in respect to the qualifications of candidates; they are given no special facility so to inquire, and wherever else the courts have not power undoubtedly parliament has not only retained jurisdiction, but parliament is bound to exercise that jurisdiction. I surely do not need to further emphasize that conclusion. I take it for granted that no member of this House would for a moment sit content, with the conclusion in his mind that there was a wrong arising out of an election which the courts had no power to right and indeed no power to hear evidence upon, and which was therefore a wrong for which there was no remedy whatever. May I put that again to the House? Is there an hon. member who, after he has been convinced that there is no tribunal with power to hear and decide it save parliament, is going to still vote that parliament shall not so decide?

The point which I intend to emphasize and indeed upon which I intend to dwell altogether

is one which was brought up in the later course of the debate on the point of order, but which I regret to say was not referred to by Your Honour in your judgment. It is a point which not only goes to the heart of this question but is the whole heart of it; it is the beginning and the' end. If the wrong complained of by Mr. Collins in the petition read at the table of this House is a wrong into which we have empowered the courts to inquire and as to which we have empowered the courts to hear evidence and give a decision upon, then I would not be standing before this House and asking parliament to reassert its old right and re-exercise the jurisdiction which was relegated to the courts. The duty is upon me, then, to show that in respect of the wrong complained of by James Arthur Collins there is no court in the land with power to inquire into it or decide upon it, and if I show that surely I have convinced all that every member who votes to throw out the petition of Collins votes to embalm in permanency a gross and cruel injustice, because he so votes knowing there is no other tribunal empowered to provide a remedy.

What is the wrong which is alleged in the petition as having been done Collins? I would like his petition to be included at this point in my address; I do not want to delay the House by reading it as it has already been read.

To the Honourable,

The Members of the House of Commons,

In Parliament Assembled.

The petition of the undersigned, James Arthur Coliins of Chisholm, in the province of Alberta, lumberman-

Humbly Sheweth:

1. That an election was held on the 29th day of October, A.D. 1925, for the electoral district of Peace River, to elect a member to represent the said electoral district in the House of Commons of Canada.

2. That the candidates at the said election were: Donald Macbeth Kennedy, William Archibald Rae and your petitioner, James Arthur Collins.

3. That Edward Henry Sheppard was the returning officer at said election, and on the 26th day of November, A.D. 1925, declared the said Donald Macbeth Kennedy duly elected to represent the said electoral district in the fifteenth .parliament of Canada.

4. That pursuant ito the provisions of the Dominion Elections Act, in that behalf, a recount of the votes cast at the said election was held from the first until the eighteenth days of December, 1925, at the city of Edmonton, by His Honour Judge Mahaffy, and at the conclusion of said recount the said judge certified that 3,986 votes had been cast in favour of Donald Macbeth Kennedy; 3,944 votes had been cast in favour of William Archibald Rae and 3,969 votes had been cast in favour of your petitioner, James Arthur Collins, and directed that the said Donald Macbeth Kennedy be declared elected to represent the said electoral district in the fifteenth parliament of Canada, by a majority of seventeen votes over your petitioner.

5. That on the 2nd day of January, the said Donald Macbeth Kennedy was gazetted as the member returned

Peace River Election

Mr. LAPOINTE:

What does my hon.

friend mean by the evidence attached?

Mr. MBIGHEN:

Because all the proceedings in the court are attached to the petition.

Mr. LAPOINTE:

I rise to a point of

order, then, because under the rules of the House no document of any kind can be attached to a petition.

Mr. MEIGHEN:

I am not particular

about the word. It accompanies the petition to this House. All I need to bring to the attention of parliament now is the averment in the petition.

Mr. SPEAKER:

If there was an appendix to the petition, it was not brought to my notice. Bourinot, page 235, states positively that no appendices are allowed with petitions.

Mr. MEIGHEN:

The appendix is not essential to the case at all.

Mr. LAPOINTE:

That would have been

a reason to reject the petition. The petition could not have been accepted with an appendix.