Mr. MEIGHEN:

Then we will say it

has not an appendix; we will say it has been operated on for appendicitis. We know, though, that the petition which has been read at the table avers that this fact has been judicially found at the Brule Mines poll. We know it also because I hope in a matter

of this kind we take judicial account of the verdicts of our judges and the records of our courts. We know that 111 voters voted at that poll for Mr. Collins.

Mr. LAPOINTE:

We do not know that.

Mr. MEIGHEN:

I do not want to retort

to the Minister of Justice (Mr. Lapointe) as his understudy the Solicitor General (Mr. Cannon) did to me yesterday. I would only suggest that his statements would be more appropriate after I am through.

Mr. LAPOINTE:

If my right hon. friend

will agree with me, we will never interrupt each other in the future.

Mr. MEIGHEN:

I w'ould not say that.

I suggest that it take the form of questions. I am quite prepared to submit to any interruption of the minister so long as I am accorded the like courtesy by hon. gentlemen opposite when I interrupt him.

Mr. MARCIL:

Would the right hon. gentleman allow me a question? I understood him to say a moment ago that there was no appeal from the decision of the recount judge.

Mr. MEIGHEN:

There is nobody doubting the decision of the recount judge. There has been no appeal from the decision of Judge Mahaffy. The petition avers that at this poll, 111 voted for Collins. They gave evidence to that effect in a criminal prosecution against the deputy returning officer. This deputy returning officer was one Peter A. Robb. Charges were laid against him as set out in the petition, three charges in all, included in which is the allegation that he took 111 votes, that 90 of them he threw away, that he substituted in their place 90 votes for William A. Rae, and brought about the result found by Judge Mahaffy in the recount. This was the charge against Robb. This charge was tried in the criminal courts, and Robb was found guilty of all charges alleged against him. He was sentenced to five, three, and three years, respectively, in the penitentiary of Alberta for the offences so committed. He appealed against the judgment of the court on, I may say, purely technical grounds, but that is not pertinent. He lost his appeal. The court sustained the finding of the prior court wholly, and altered the sentences only technically, reducing two of the concurrent sentences from five to three years, the ultimate result being that the sentence stands at five years for the three offences, and Robb stands now irreversibly guilty.

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What this offence means hon. gentlemen will grasp at a glance. It means that an officer of this House, how selected I do not need to inquire-suffice it to say that, acting as he was, he was an officer of parliament

committed the crime of theft of the mout sacred thing in the possession of any citizen, committed it in 90 cases, substituted ballots himself for the goods he stole, and because he did, he placed the candidate Donald Macbeth Kennedy in advance of the candidate James Arthur Collins, and Mr. Kennedy sits in this House now as the result of the theft so committed.

I have cited these circumstances so that the House will understand the enormity of the subject matter which is before it.

Mr. HEAPS:

Is it not possible that in another part of the riding a similar condition may have prevailed, only the votes went the other way, and so offset what occurred in this case?

Mr. MEIGHEN:

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judgments will be reversed on appeal-that in a civil proceeding, in a proceeding questioning the return, no witness will ever be allowed to say how he has voted.

Mr. FORKE:

Just for information, would

the right hon. gentleman give us some idea why it should be so absolute in the one case and not in the other? The two cases seem to be similar.

Mr. MEIGHEN:

All I can say in answer to the very pertinent inquiry is to give the reason given by the judges in the Supreme Court, namely that parliament in its wisdom declared that witnesses should not be required to answer and that behind the action of parliament was the necessity in the interest of public policy that the secrecy of the ballot be maintained. The judges have held that parliament has ruled that witnesses be not required to answer in order that the secrecy of the ballot may be sacred, not in order to protect the witnesses. Because of that reason which the courts have declared to be behind the action of parliament, they will not in any civil proceeding hear evidence as to how any individual has voted.

Mr. MacLEAN (Prince):

Would evidence given at the first trial under oath be allowed at the second?

Mr. MEIGHEN:

Evidence in one trial is never allowed in the other even though in the other, if it were initial evidence, it could come in. But as in the initial trial it could not come in, it never could come in by importation. I do not find fault with the question being put.

I am sorry to have to argue at such length before the House what appears to be law, but we cannot understand the far-reaching and momentous subject which we are called upon to decide unless we understand fully the state of the law on the question. I revert to the proposition which I advanced in the early part of my remarks, namely, that it is inconceivable that hon. members would vote to cast the petition of Mr. Collins into the waste paper basket and tell him curtly to go to the courts for his remedy when they know they have tied the hands of the courts and prevented them from hearing Collins' evidence. Are hon members to say to Mr. Collins: Go to the courts, when they know he will be told by the courts that he cannot give his evidence there?

Mr. WARD:

Does the law as it stands forbid an elector to give evidence if he so desires?

TMr. Meighen.]

Mr. MEIGHEN:

Absolutely forbids him.

I believe I have established that whatever else parliament may have done, whatever other questions they may have relegated to the courts and empowered the courts to hear and decide, this is one they have not. The inference would appear to be that the intention of parliament is that the courts should investigate the conduct of the election in every respect until the ballots are in the ballot box and the ballot box closed, in a word until the conduct of the election gets into the hands of officers of this House. If parliament had intended that the courts and the courts alone should review the conduct, honest or dishonest, of those officers, parliament would have empowered the courts to hear the essential evidence to enable them to make that review. Parliament has disarmed and disabled the courts from hearing the essential evidence without the production of which Mr. Collins is absolutely helpless. Parliament having done so, I ask this House: Is parliament to say with a sneer to Mr. Collins: We have nothing to do with the matter: Go before this powerless court. The government which will take that responsibility casts an aspersion upon its motives and certainly will stand forever before the people of this country as more interested in office than in right.

In all the cases, in every address, emphasized I admit much more forcibly and frequently in past years by Liberal speakers, very able and eminent Liberal lawyers in this House, emphasized though on both sides, it is declared that parliament has never for a moment relegated to anybody the question of the conduct of its own officers. Whatever parliament may have done in the way of empowering the courts to examine certain classes of conduct of its officers, undoubtedly parliament has never stripped itself of the power to examine, act upon and correct wrongs done by its officers. For hon. members to argue that parliament has not only not empowered the courts to. inquire into the conduct of an officer in an election but has utterly stripped itself of power when it knows the courts have none, is simply to argue the absurd. No hon. member can justify a vote against this motion, against turning Mr. Collins from the door of this House where he seeks relief, until he is able to establish that under the law as it is to-day Mr. Collins has somewhere else to go.

On that I rest my appeal to parliament and I rest it with some confidence. I cannot conceive of the Minister of Justice, for whom as a man I have very great respect, leading this House to turn a deaf ear to the appeal

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of Mr. Collins when the Minister knows that Mr. Collins, though he may go to the courts, is bound to be refused redress there for the reason that they cannot hear his evidence. Consequently with much confidence I appeal to parliament to assert the jurisdiction it absolutely and undoubtedly has, a jurisdiction which I contend it has in all respects as regards elections, but which it should not exercise wherever it has empowered the courts to exercise the same. I ask parliament to reassert that jurisdiction in this case when the House knows that it not only has not em-pow'ered the courts to act and to give the remedy but has absolutely disabled them from doing so.

Hon. ERNEST LAPOINTE (Minister of Justice):

Mr. Speaker, this question came up practically in the same form some time ago when it was not my privilege to be in the House on account of illness, but I have taken the trouble to read the debates that took place at the time. I have read also Your Honour's ruling with which I entirely agree. The same petitioner has sent in a new document wdiich, according to the usual custom and practice, has been examined by an officer of this House who has reported as follows:

The Clerk of Petitions has the honour to report that he has examined the following petition, viz.:

Of James Arthur Collins of Chisholm, province of Alberta, lumberman; praying 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, the deputy returning officer, 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 taking of, the counting and recounting the votes cast at such poll in the said district of Peace River, 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 in the said electoral district of Peace River on the 29th of October, 1925, and finds that:

The prayer of this petition consists of two parts viz,-(1) That the House investigate the conduct of certain officials in connection with the election of a member to represent the constituency of Peace River in the House of Commons of Canada, held on the 29th October, 1925.

(2) That the House direct the proper officers to take such action as may be necessary and requisite 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 said electoral district of Peace River on the 29th October, aforesaid.

The form of this petition and its contents so far as the first part of the prayer is concerned are within the requirements of the 75th rule, and refer only to such matters as are within the right and competency of the House to deal with, should the House desire to do so; should, however ,the course suggested in the second part of the prayer be taken by the House it would apparently have the effect of authorizing other

persons to exercise a power which the House has already delegated by statute to the exclusive jurisdiction of the courts.

Apparently the first part of the prayer of this petition is only of a preliminary nature leading up to the main request as contained in the second part, consequently the prayer, considered as a whole, brings this petition within the ruling of Mr. Speaker Lemieux given on the 6th May last, in a somewhat similar case, which ruling was subsequently sustained by the House on appeal, viz, that a petition which prays for any action to be taken by the House that might involve in any resipeot an interference with the provisions of the Controverted Elections Act, chapter 7, R.S.C., 1906, cannot be received.

Under these circumstances I have therefore the honour to report that this petition should not be received.

Now the leader of the opposition (Mr. Meighen) moves that the petition be received notwithstanding this report of the officer of the House, and Mr. Speaker leaves the House free to decide the question. May I first call the attention of the House to the fact that if I had cared to do so I might have raised a point of order to the discussion by my right hon. friend of what he claims to have been the proceedings held before a criminal court in the province of Alberta. The only way in which this House is seized, or can take cognizance, of such proceedings before the courts when they relate to an election, is through a report of the judges appointed under the law to inquire into these matters when such report is submitted to the Speaker.

Mr. MEIGHEN:

That is true with relation to controverted elections, but my hon. friend will admit, I think, that the judge in a criminal case in which an accused is on trial under indictment is neither directed nor empowered to submit any report to parliament. So that there is no way of getting the facts here.

Mr. LAPOINTE:

Quite so, and we have

no proof of anything apart from what is stated in the petition. I can understand that the petitioner might attach to his petition a copy of the evidence as an appendix, but under the rules of the House the petition could not have been accepted. However, I do not quarrel with my right hon. friend for having discussed the matter.

In the first part of his argument-and this simplifies and facilitates my task-the leader of the opposition has admitted that, since the change in the law relating to controverted elections, this parliament following the precedent established in Great Britain has delegated to the courts the power and the right to inquire into election matters. Undoubtedly there is some difference of opinion in the matter of interpretation, but my belief, which is founded upon good authority, upon the

Peace River Election

authority in fact of all constitutional authors who have dealt with this question, is that parliament has reserved to itself only what it has not expressly delegated to the courts in these matters relating to elections. Parliament has reserved to itself the right to inquire as to whether a proper person has been returned in answer to the writ Of the House-whether a person who is qualified under the law to occupy a seat in the House has been returned to parliament.

This question has been extensively debated and while I do not intend to quote any speeches I may give some of the names and pages in Hansard of different years to show what- views have been advanced in this regard. Apart from the question whether a person duly qualified has been returned to parliament, all matters affecting the election itself, the way in which it has been conducted, illegalities, frauds or anything else connected with the election, have been referred and properly referred to the courts of the land both in Capada and in Great Britain. I Should like to quote here from the English authors Leigh and Le Marchant:

Questioned-

That is the same word as appears in our own law.

Questioned means questioned by election petition, by persons having an interest in raising the question and wishing .to vindicate their own nights, and does not take away from the House of Commons their authority to decide on the eligibility of a candidate, in the event of a felon, a minor, or a woman being returned.

Those were the old days before our sisters obtained the right to sit in parliament. Surely no one will contend that my hon. friend from Peace River is either a felon or a minor, or, if the restriction were applicable in these days, a woman. The words of the statute are easily interpreted; they are not broad; they are not general in their meaning; they are not vague: from the passing of the Controverted Elections Act no election shall be questioned otherwise than in the manner provided by the act itself. When election petitions were inquired into by a committee of thi3 House, the same safeguards, the same guarantees existed for protecting the members returned to parliament against vexatious proceedings. For example, no petition could be received without a deposit of one thousand dollars accompanying the petition. And in respect of questions arising under the Corrupt Practices Act-an act which has never been taken advantage of since its incorporation until the present session in the case of the Athabasca election-the right is given, after the expiry of the time for the filing of election

[Mr. Lapointe.^

petitions before the courts, to petition the Speaker to order an investigation for the appointment of a commissioner or commissioners to inquire whether corrupt practices were engaged in during the election questioned. There again the same guarantee against vexatious proceedings exists, and the gentlemen who signed the petition this year during this session of parliament, asking for an investigation into the Athabasca election, were obliged to forward at the same time to the Clerk of the House, a deposit of one thousand dollars; otherwise their petition would not have been accepted.

Does my right hon. friend mean to say that merely because some man declares in a petition that votes given for one candidate had been registered in favour of another, therefore the procedure enacted by this parliament is set aside; that that does away with all the safeguards and all the guarantees which have been properly inserted in the statute for the purpose of protecting men who are duly returned to this parliament against vexatious proceedings.

Now my right hon. friend bases his contention-and it is also the argument set forth mainly in the petition-on the fact according to him and the petitioner, which I do not dispute, that the witnesses could not be forced or even allowed before the courts to state for which candidate they registered their votes. That is perfectly true. Although the law only says virtually that no witness can be forced to declare anywhere for whom he voted at an election, the Supreme Court of Canada has ruled that this means also that witnesses can not be allowed to declare for whom they voted. If you look at the various sections of the act, Mr. Speaker, you will find that parliament has taken good care to declare, and it is the animating principle of its various provisions, that the manner in which a man has voted is a secret, that it is his sacred right to vote for whomever he pleases and nobody is entitled to know how he voted. This is for the protection of the voter. The courts have decided that it should mean also that he cannot even be allowed to say for whom he voted. My right hon. friend read that part of the judgment of Mr. Justice Strong, and the other judges took the same stand. But what is the reason why they threw it aside? Justice Strong said:

It is no answer to this to say that secrecy is imposed for the benefit of the voter and that he can waive it, for I hold secrecy to be imposed as an absolute rule of public policy, and that it cannot be waived.

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Well, Mr. Speaker, if this is ruled by the Supreme Court and by the other courts because they consider it a question of public policy, surely the same public policy would apply to the deliberations of the Privileges and Elections committee as to the proceedings before the courts.

Mr. MEIGHEN:

Will the hon. gentleman not admit that the very same questions have been asked and compelled to be answered before the Privileges and Elections committee?

Mr. LAPOINTE:

No, Sir, I do not admit

that.