Joseph Henri Napoléon Bourassa
Mr. HENRI BOURASSA (Labelle):
Last Thursday I gave notice that I would propose to-day that the standing orders of the house be amended by inserting the following:
9(a). Upon a division a member is not obliged to vote.
In moving this amendment I do not propose anything new. I simply desire to clarify the situation and to enable the house and yourself, sir, as guardian of the rules of this house, to avoid a repetition of the little embroilment of last week. That, however, I regard, as a matter of fact, only as an incident. What I wish to make clear is that there never has been and that there is not at the present time any standing order or set rule governing the manner in which members must vote or refrain from voting. What has -been quoted in this house or outside the house as Rule 68 is not and never has been a rule; it is one of the footnotes which Mr. Beauchesne has incorporated as comments upon the very rule
which I propose to discuss to-day-that is, standing order No. 9. And even at that, Mr. Beauchesne's footnote, No. 68, which my good friend from Charlevoix-fiaguenay (Mr. Casgrain) mistook for a rule of the house, is but the reproduction of a paragraph of Bourinot's fourth edition, at page 381, as any man familiar with Mr. Beauchene's book, or with the rules of the house, can easily find out; because there, after paragraph 68, you have "B-381." Besides, that paragraph in Bourinot's fourth edition of 1916, which was edited by a predecessor of our able clerk, Doctor Flint, is also a verbatim reproduction of the same words used by Sir John Bourinot in the first edition of his book in 1884, at page 389. Now, that comment of Sir John Bourinot, reproduced as it has been from time to time, was absolutely true and accurate as applied to the practices of the British and Canadian houses in 1884. I do not think I shall have any trouble in demonstrating that it is no longer applicable to the rules of this house as they were revised in 1927.
Now to give a short history of our standing orders. The first set of rules or standing orders of this house were adopted on December 20, 1867, as may be found in the Journals of the House of Commons for the year 1867-68, at pages 115 to 125. Neither in these standing orders, any more than in any other standing orders following, nor in the present standing orders, was there any disposition regarding the right of members either to vote or not to vote. But there was a general governing clause, adopted as standing order No. 116, which stated:
In all unprovided cases the Rules, Usages and Forms of the House of Commons of the United Kingdom of Great Britain and Ireland shall be followed.
That is what I call the governing rule of all our standing orders, from that day until the present time. As it was in 1867, that general clause did not make any mention as to date with regard to the usages pursued in the House of Commons in England; they were to apply from time to time. The first time that the matter was brought up in the house-at least the first time, and I think it is sufficient, that I have discovered-was in 1879, when the house voted, if I remember rightly, on the famous legislation concerning the Canadian Pacific Railway. An hon. member having voted, his vote was challenged by one of the ministers of the crown, Mr. Caron, because he had paired; upon which the Prime Minister, Sir John Macdonald, leader of the house, stood up and stated, in contradiction of his own colleague, that-
Rules-Members Not Voting
Every member in the house, if called upon, was compelled to vote, and even if a gentleman got up and stated that he had paired, the house could compel him to vote, because, if he had paired, he must leave the house before the Vote was taken. This was English practice.
If the rule stood now as it was then, it would mean that every time a vote is taken, members getting up and declaring that they have not voted because they are paired, break the same rule, or rather what has been mentioned as such, but which as a matter of fact is not a rule but only a practice. Let us see, however. Upon this opinion of Sir John Macdonald, implicitly endorsed by the whole house, Sir John Bourinot based the comment which I have quoted and which Mr. Beauchesne has reproduced in his paragraph, No. 68, misquoted as a rule of this house. The only rule was the practice as defined by Sir John Macdonald in 1879, then in force in England as here; because it must be noted that Sir John Macdonald invoked it as applying to this house inasmuch as it was the English practice.
In 1906, however, the British House of Commons revised its standing orders and adopted the following rule: [DOT]
No. 29. A member may vote in a division although he did not hear the question put.
And paragraph 2:
A member is not obliged to vote.
-which are the exact words that I have put in the motion I now propose to the house. Now, did this apply to Canada? No. And why not? Because in 1906, the same year, in the month of March, the House of Commons of Canada had revised its rules and in substitution for the governing rule 116 of 1867 it had introduced a new governing clause. It is called "General Rule No. 1." This, I claim, is the most important of the standing orders because it governs the whole. It reads:
In ah eases not provided for hereinafter- That is, by the standing orders.
-or by sessional or other orders, the rules, usages and forms of proceeding of the House of Commons of the United Kingdom of Great Britain and Ireland, in force on the first day of July 1867, shall be followed.
As Doctor Flint quotes in his posterior edition of Bourinot's work, the effect of this was to prevent the application to the House of Commons of Canada of the new standing order adopted in England in December 1906. So that when, in 1022', Mr. Beauchesne issued the first edition of his comments, he was perfectly justified in inserting this footnote. It was 'then under No. 69, now under No. 68. This paragraph says that an hon. member is Obliged to vote. That was copied, I repeat,
from feir John Bourinot. Then paragraph 70^69 of the second edition (1927)-reads as follows:
Under ancient custom, refusal to vote was considered a serious parliamentary offence, but the practice was changed in 1906 by the British house adopting a standing order whereby a member is not obliged to vote. That standing order does not apply to the Canadian Commons The practice has not been changed in Canada where every member who has heard the question put is bound to vote..
This is the second paragraph referred to by the hon. member for Charlevoix (Mr. Cas-grain) as being another rule of the house. The hon. member was apparently under the misapprehension that Mr. Beauchesne is the parliament of Canada and that his comments are to be taken as rules of this house, just as a lawyer in consulting with a client might confuse the opinion of a commentator with the text of a statute or of a judgment delivered by the court. I do not think my hon. friend would act in that way in his capacity as a lawyer.
Mr. CA8GRAIN: Not all the time.
Subtopic: PROPOSED AMENDMENT DECLARING RIGHT OP MEMBERS TO REFRAIN FROM VOTING