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CowST
«* mmm .
House of Commons Mtbnits*
SliCONl) SI".SSI0\-SI'VHNTI1 rAKM.WIF.NT.
SPEKCH OF MR. MILLS, M.P.,
III
ON
DUTIES OF ELECTION OFFICIALS.
FKIDAY, MARCH 4tii, 1802.
DUTIKS OF KLKCTIOX ()] TiriALS.
Mr. MIIJ.s (liotliw.'l!) iiiovtd :
Tlint it is tlir iin(liiul)t(,'cl riKlit and duly nl' llic JIoiisc (if
Commons to see thiit tlio rotiiriiinfr otiiccrs and otlior
officials wild havo duties iinposfd u|ioii llicin in llie cluc-
tion of ineniluTs to tliis House, act witli pcrlV'Ct lairncss
towards the vnrioiis candidates, and to hold such relnru-
iiiff oflicers ami ollu'.' nHUdals to the strict disidiarpie ol'
their duties; andthis ' -ni:^!' further aflirrus that the trial
of clecti(Ui |ietitioii« by the C(Mirts does not lessen the
autliority of the House over siudi officials, nor take away
tlie necessity for its supervision.
Ho .said: Mr. .Spiiiker, I ),'iive noliie yi'slcrday,
with the iis.sent of tlu' h'iidcr of thi- Uousf, tliat I
wotihl today make a motion in icfciencf to the
dutif.s of this House in relation to the tdections
which may hv from time to tinukiudd. Tin; motion
whifli I now ))roj)()SL' alliiiMs tliat it is tlie nndoulit-
eil ligiit of tlie liousc of Connnons to sec that the
returinng otiiccrs and other (dlicials \\ ho havcdntics
imposed \i|ion tlicni in the (dcction of nicmlicrs to
the House, shonhl act with perfect fairness to the
various ■'ainlidates, ami to hohl such returning
olficers and other fdlicials to tlie strict discharge of
their duties. 'I"he motion also says : '•This House
further allirms that the trial of 'election pttitions
liy the cinirts cloes imt lessen the authority of the
House over such ollicials, nor takeaway the ncccs-
.sily for its su))ervision." I tiiink. Sir, that the
doctiini! laid down ni this motion is too clear to
admit of couti-over.sy. 'j'lu; House is the Judge of
its own rights ami privileges, aud it is also its
duty, as the tepreseutati\e Itody of the nation,
to see that tliose who hecoine memhers of the
House, tlo .so in accordance with the jjrovisious
of the law of the land. I ilo not say, .Sir,
that it is always necessary that this super-
vision should ex])ross itself actively ; it i.s sulli-
cient that it potentially exists, called into act-
ivity only when there is some aluise, some dis-
regard of duty, some misconduct or malfeasance in
ofhce on the part of ollicials who are iei|tiired to
discharge duties in the way presi'i'ilied hy tin; law
of the laml. The suhit'ct is an important one,
heeause e\'ery depaiture from |)erfect fairness in
the discharge of duties liy an olHcial may affect
the results which ought to he iiccoiujilished by the
exerci.ic of tlu' ch'ctive franchise. The effect of
such unfairiu^ss may alter' the represeutiitioli in
I'arliauu'nt ; ami in so far as it accom]ilishcs this
end, tiie intluencc and re.'-pe<'t which this House
should command in the countiy will he sc iously
wcakciu'd. It must not he forgotten that inuler
ou, .system of parliaiuentary government the
ailministration is always an interested pai'ty. Hut
tiieie is one marked ditference lictween our system
aud that which exists in Kugland. that here the
.Ministry as an iuteresteil party have it within
their power to exercisi; an amount of influence,
ami to exei'cise that intluencc in an undue way,
which is not open to an Administration in the
I'uitcd Kingdom. I .say, .Sir, that this power in
refeieiicc to idectious, wiiich is jjosse.s.sed hy the
Ministers jiere in a larger degree than it is
posscs.sed hy Ministers in tlu^ United Kingdom,
re(|uiics on the ])ait of this House even a more
active vigilance tiian is called for hy the duties that
devolve upon the House of ( onunons in the United
Kingdom. In the United Kingdom, the Clerk of
the Crown in Chaneery. wlu'ii lie receives tlie
warrant of the .'speaker, is iei|uired to issue the
writ to an oliiccr appoiutcil hy the law, a perma-
iient othcial of the House, for the ])u rpo.se of having
an election in a particular district. It is not o])en
to the Administration to interfere. The power of
Ministers over tiic Clerk of the Crown in Chaneery,
their |)o\\c'r to interfere with him in the ilischarge
id' his duties, so t'.ir as the law is concerned, i.s there
no greater than the power of other meinhers of
the House of Commons, lint. Sir, that is not the
<.'ase here. A few years ago, an .-Vet was passed in
this House repealing the law which named certain
ollicials as ]ici mancnt ollicers of the House for the
purjiose of ludding eli'ctiiuis. .So long as that law
continued on the Statute-hook, it was open to the
Clerk of I he Crowii in Chancery in Canada to dis-
charge the duty in prci'iscly the same way that the
Clerk of the Crown in Chancery i.i the United
Kingi hull discharges his duty. Ihit, Sir, hy the repeal
of that law, the relation hctween the .-Vilministra-
tioii and tiieClerk of theCrownint 'hancery was very
.seriously interfered with. 'J'he Administration was
given a control over that officer in the rlisrha^ge
of hix iiliiciiil (lutit^.s wliicli is iiltogt'tlifi' uiikiuiwii
to tlie livw ill t\\v Uiiiteil Kiiigiliiiii. Tlii' ifsiiit of i
thiH is timt oiu! of tiu! piirtifH intL-rf.slt'il in every !
coiitcHt tlmt tiikuM pliicf |niN.seHHi'NHii tmiliu' iiifhu'iR'i' i
in tiiiit cniitL'st. Tilt' Clerk of the Crown in Chun- ,
eery eimnot issue tiie writ, lie eiinnot eonforni to I
the warrant issued Ity the Speaker, until tlu- ,
Administration nuike known to him wliom they
have aj)i)ointed iis returning ollieer for the purpose \
of lioIdinK tlie eh'ct- i ; and so, however desirouH
he may lie to d, ^'e his duty, in eonforinity j
■witli tlu' sjiirit ail., .iitention of tiie Act, his ijood '
iiilciitioiis in that lespect are frustrated ; iiis !
ahiiity to ooiiforin to tiie re(|uiremeiits of tlie law
are rendered nuj,'atory, so long as the Adminis-
tration choose to refrain from a|>pointiiig an
officer to liold the election. That being the case,
it is of the first ci)iise(|uencc tliat i'arliament should !
watch carefully every step taken in every election |
which is heing held in any j) rtion of this
Dominion. We s'imetimos hear it said here that
parties arc dispo.seil to live and to die Hritish
subjects. I am not going to discu.ss the (|uestion
of dying, because I suppose mo.st lion, geutleiueii
like to stay where they are acipiainted ; and so, 1
suppose, they have no jiarticular an.viety to end
tht'ir days in any liurrie<i manner. IJut, .Sir, I
may .say that tho.se who are anxious to live as
British subjects in Canada ought to be anxious
. to maintain the spirit and ^irinciples of liritish
institutions ; and it is not maintaiiiiiig the s]iirit
and principles of liritish iiarliaiiieiitary government
to jiut it in the power of an Adiniiiistration to ex-
ercise an undue iutiueiice through the iustruiuen-
talities which are employed in holding a ])ar:li.neii-
tary election. The ( Jovernment, I say, are alwiys
a party to every election contest that takes place ;
and ill the election contest to which I am about to
refer, the one which has recently taken place in
I^oiidon, a Minister of the Crown was one of the
candidates. That Minister of the Crown was also
a party to ailvising His Kxcelleney who the return-
ing otHcer and the various deputy retnrniug ufticers,
within the constituency, shoulil be. Hon geiitle-
nitii will see, then, that the relation between one
candidate and all the officials ei.ijiloyed holding the
election is quite different from the relation between
the other candidate and tho.se officials. So, where
these large powers are given to an Administration,
it is of all the more cons(!(iuence to see that the
parties who are appointed for the purpose of hold-
ing an election strictly conform to the law. I
say. Sir, that Parliament always has the power to
protect itself ; and the appointment of an election
court, ffir the purpose of trying controverted elec-
tions, does not at all derogate from the power that
is inherent in the House of Coninions. So far as a
Jiarticular class of matters are concerned, it may
lie important that the House should abstain from
taking any action where the courts are called upon
actively to interfere and to adjudicate in reference
to litigated matters. That the original authority
and right of Parliament is not derogated from by
the substitution of a court of justice for a commit-
tee of the House in the trial of controverted elec-
tions, was admitted in a discussion that took place
in this House .some years ago. In that discussion,
Mr. Blake said :
" Ho would be very sorry to believe that the House had
been deprived, by the position of the Controverted Eleo-
tiong Act, of'its power over returning officers and deputy
returning officers — of its power to investigate complaints
made iigaiiiHt then:, and to punish thom foi- improper oon-
duet."
And Sir John .Macdonald, in ii|)viiking in tlio sivnie
debate, .said :
" He wn.s glitd tliu liiiii. member did not propose to nsk
the Iliiiise t« ciinsider the points raised in tfio petition
when llio election case wiis before another tribunal ; at
the Hiimo time it was not to bo supposed that the House
had iibandonedits riglit toenntrol.eensuroandif need be,
punish, returning and dopu'y returning officerH,"
.So that, so far as the power of Parliament is con-
cerned, there can lie no (|Uestioii that the power
does exist, that this House has inherently in itself
the ]iower to supervise the otiicials it emjiloys to
hold elections in any constituencies ; and while in
some t^a.ses it may not Ix! necessary to intervene, it
is always projier to observe, so that, when there is a
serious abu.se of authority, when there is an abuse
of oliice, this Hou.se may u.se the jiowerwitli which
it is vested in the public interest for the purpose of
jirotc(^ting the rights of parties which are affected
when the power i^aii lie more iwiiivenientlyexerciseil
by this House than by any other tribunal or party.
This is obvious for this reason. Let me sn]i|io.s(!, for
instance^ that the returning otliccr should return to
this House a jiarty who had received a minority <if
votes, a party who is an alien, a jiarty whfi is
a felon, and no objeciioii had been filed in the case,
no action had been taken in the case clearly the
House is not in such a helpless ]iositioii that it could
not jiurify itself and protect the rights of the
electors of the country against any intrusion or
abuse of that kind. The returning nlticer may
commit a fiaud upon the Hou.se, he may return a
candiilate having a minority of votes, and surely it
is open to this House to call on the (-lerk »if the
Crown in Chancery an<l it has been done again
and again to proiluce the return made and to
insist upon an amendment of the return in accord-
ance V ith the facts. If there be any (|nestion of
law, if there be anv (piestion of litigation between
the parties, if no reference is made to the courts
for adjudication, it is open to this House to pro-
tect it.self againstabuse and against any per.son who
has no I'iglit to sit here now, just as much as it was
in the formci' history of Parliament. As a rule the
c<iurts have to considci' (piestioiis of law and fact,
and the conclusions of the law from the facts so
stated and jiroved, liut, where the (|ue8tion is
merely one of arithmetic ami nothing more, I
think it is clear that the ob.servations ina<le by
Lord Esher in an important ca.se — the Bangor
case which was tiied three or four years ago—
are strictly applicable, and it wouhl be a,
neglect of duty for the House to refuse to do jus-
tice in the matter and to compel the parties to
have recourse to exjiensive legislation. I do not
mean, by the res<ilution I have proposed, that this
i Hfiuse shall exercise a meddlesome oversight,
i that it shall u.se the power with which it
; is vested, where the emjiloyment of such power
j is unnecessary, lint x say that, whenever it
1 becomes clear that a wrong is about to be done,
j that authority is about to be abused, that the
pai'tieswho arj entrusted with the <lischaige of im-
jiortaiiV duties are failing in tliei" duty, the fact
I that this House is not in<liffe.'ent to what is being
done, tli.xt it is exercising a supervision over its
' officers, is calculated to ha\ ja very important and
' salutary effect, aiid \, hen that supervision is exer-
I cised with fairness and moderation, lam certain that
I such abuses asexisted in the Province of NewBruns-
'^'^'i^
i
^i s'.
8
•v'
H
wick u few jieai'H ago, in the uaHe of an election tothic
Koiiwc, arc not likely to lie very fre((iii'iit, aii<l this
lloiiHe will he Haveil troulile, luiil the pliliiic will l>e
Kjiveil Heandiil, if tiiin lloiiNe iiolilw it« ollieeiM to a
. wtriet res|)oiinihility. I iiiii aMHeitiiig i\o mole tliiiii
this, that it in the fluty of tie otiii cih of the House
to ohey the law. It is ohvious that no clcpait uient
of (Jovernnuait couM he salisfautoiily ailuiiuistered
if every (litlenjliee helwceu ii super ioiotiitiT and an
inferior oIlieiT had to he litigated upon and decided
hy a j\idieial tiihuiial rather than hy a clccision
of the su])erior otiieer, and therefore I say
that, where it is olivious to the eoinnion sense
an<l to the sense of fairness of ('veiy mem-
ber of this House that a wronjj; is heinj; done,
the House would he derelict in its iluty to the
e(Uintry if it failed to exereise tin; power witii
which it is vested and to insist upi iiri^'ht lieinj; done.
Yesterday thi^ House eonsidcred another liraneli
of this suhject, Imt to-day 1 willajiain refer lirietly
to the i|uestion as to w iio are the electors, who are
the ))aities who aie found upon the voters' list or
who should lie on that list when the election was
held, the voters' list as put in the hands of the
deputy returuinj,' otHeers, and how xotes shouhl he
taken, how the enumeration should lake place,
and how, in any matter of controversy in regaid to
the enuineiation, it is to Ik^ disposed of. 'riicseare
the (piestions which 1 projiosc to ask the Mouse
to-day to consider and discuss. IJy section .SO of
the Klectoral Franchise .\ct, it will he seen that
there were tw ■ classes of persons entiticil to vote
at elections, those pcn'.sons aliout whose right to go
on the list there was no controvei'sy, and those
persons ahout whom theie were appeals |)cnding.
Of this second ciass, there are three special classes
(ir.st, those retained on the list not withslaniling an
application to have them striuk otl; tli'.'n tiiose who
are said to he struck oil hy tiie revising otlicer
against whose decision an a])peal is hail to
the c()\inty judge ; and the third class is those
who have ap))lied to lie put on the list and
whom the revising otlicer has refused to put
on the list. As I lutdeistood th(! Minister of
ilustice yesterday, we agreed that the Hrst class
should he on the list, that is, the rt^vising oliicer
having refused to strike them off, thi^y should
remain there. We also agreed that the third class,
tho.se the I'evising otlicei' refused to jiut on, could
not he on the list ; hut we ditl'ered as to the second
class, those the revising otlicei' had struck otf
the list hut in legar'd to whom an a|)|)esil is urade.
1 understand the Minister- of .lustiie to maintain
that those voters, notwithstaniliiig the fact that
they ar-e stru'^k otl', ar'c still on the list. I dissent
from that opinion. I think thor'e arc two of three
suh-classes oH' the list, and that they are noted
when the list is r'e(iuii'ed for' the pur-])ose of election.
Hut if the law was in other respects complied wiih,
thei-e would henopr-actieal nriscliief, perhaps, aiisinc
fi'om the adoption of one or' the other of these coi
tentions. I am informed that in some instances,
in the city of London, in the recent election, certain
])artits wiiose names wer'e on the listiMul who wer'e
the Hulijects of appeal, instead of taking the oath X
that they are I'eijuir'ed to take uirder the statute,
took the ordinary oath of electors who are not
the suhjectf of a])peal, and it was conteirded tiiat
h(!cause theii' names were so ])rinted ir])on the
list, they had a r'ight to vote u|)on the or'diirai'v
oath being administered. I mention this .>s one of
the nristakeM that uroHe, and that is likely to
arise where thei'e i« no proper' distinction made
between irairres that ar'e on the list as of right, and
those that ar'e orr that list as a irratter- of contro-
\ei'sy. The .'t'Jnd section i^f this .Vet with leferenec
to Voters' lists, shows ' (w the Act is to be uiriler-
stood and interpreted. It can never be accurately or
properly interpreted by looking at each inilividual
section and irirdertaking to construe that accordirrg
to the strict giamrrratical imjinrt of the words. In
both Chapter'."! iirrd Chapter' 8 of these CoirsolrMated
Statirtes, we mirst look at the whole .Vet, con-
sider every ]ir'ovision of each of the.se Acts, and 8o
, construe theirr tiiat they may all stanil together,
and best carry out the iirterrtion of Parliament.
, Section .'t.H shows that the class that is strirek ort'
■ the voters' lists irirder' section .'1(1, have seven days
, within w hich to appeal fr'orn the decisi(nr of the
i'e\ ising ollici'r' to the county jirdge, arrd tire reason
of such a time la'irrg given for' tiiat apjreid is to
allow therrr beinu restored to the list. Until that
r'estor'ation takes place it seems to me that they do
not stan<l upoir the list. Then, if we look at section
.")() of Chapter H, we Iirrd the same limitatioir orr the
proceedirrgs befor'e the di pirty ret\rr'ning officer's iir
, making the count of the votes that have beiMr polled.
Tile first part of that sectioir ))rovide.s :
" rruiiiecliiitol.v utter the close of the pott, the <loputy
rt'turriliip ollieer shall, in the i)ri'.''eiici' of lli« poll rOerK
and rill' cllllliililll('^', or tln'iraUL'iil.-;— and if the candidiitos
, .aid tlieir iiirent." (.r loiy of tlierri are iibsciil, llieri in the
\ nrcscMiec of ."ucli, if iiii.v, of them lis are present, and of at
least tlir'ee ek'ctor.s, — open the ballot l)o.\ and pi'ooeed to
coniit the nirrnbiT of vote.i Kiven for eaeli cimdidati' : and
in ."0 doinp he sliiill reject all ballot paper.* which have
iiot hi I'll .sii pill led b.v (ho deputy relurriiiiK oflicers, all
tliose by which vote." have been (tiveii for more candidates
than are to he elccled, and all tho.^e upon which there is
any writiiiR or murk by wliidi the voter can be identified,
otlicr tlieii the niiiiib'.'rintr by tlic deputy retiirniiiK ollicor
in the eases lieroinbefore [irovided for.''
Then the second section provides :
" The otlierballot papers being counted, and a listkopt
(if the iniinbei- of voles (.'iveii t<i each candidate, and of
the luuiiber of rejected ballot piiiici';', all the ballot papers
indicatiiucthe votes given for each candiihite respectively,
e.xeept as in tliis section is hereinafter provided, shall he
Iiut into separiitc envelopes."
Now, the exception from that "as hereinafter pro-
vided " refers to the jiarticular class of votes that
are in appeal. The third sub-section reads as
I follows : —
"The deputy relurniiiK otlicer shall also, in counting
the biillots, place in l\\i separate envelopes or imrccls,
the two classes of ballot papers of persons whose right to
have their names registered upon the list of voters and to
; vote at such elections, and of persons the exclusion of
whose names from the said list as voters, are respectively
the subjects of undecided appeal."
Ami it further provides :
! " He shall keep a list of ea-b of the said classes of bal-
[ lots."
What is the meaning of " keeping a list of each
class '! " Why, Sir, as we .see before the use of these
I wiirds, that he shall ''"""..crate each class, not that
he shall confuse them indiscriminately by enunier-
j ating them together, but that he shall enumerate
I each class tif ballot-, those about which there is a
'. controvei'.sy or disp'.ite as to the rights of the parties
I to vote, and those about wlio.se right to vote there
is no dispute. Now, when ve look at the .'>8th
j section we find this eiriiiieration of the two classes
i of voters separately and distinctly, still furthei'
j emphasized. Section .">S says :
^
till' t'i'tiiniiiiK ollii't'i iiiiiHt M(lil u|i tlmsi' voIck uml
liiilMt ilcclai'i' till' I'liMilliliitr liii\ iii|>! a iiKijiinty
I'lci'tril. \\ itliollt ri'frl'i'lU'i' to tlli' iliHtillrtinll tliiil
hits lici'ii iiiikIi- lii'fiiri'. Iiiit it' y<>ii irml all llic
|l^ovl^'il>ll.■^ lit till' Art I'fliitiiif; In till' iliitirs i(f till'
I'l-tiiniili^ iillircr, it l>rrimir.s iirititi'tly (ilixiiin.i tliiit
till' cliMtiiiitiiiii iniiilr i» iiiti'iiiU'il to Kr kept «liii'tly
in vii'M. liiiMii'iliatrly iit'ti'i', in .si'i'timi (i'J uii'l I
hIiiiII 'iiili'iivoiii' til iimki' this miittiT clu„i' ymi
will »w tliiit it llu' Imlli t liiix is lost, if any of the
lialliit lio\(;s ai'i! not I't'tlirnoil at tlu' a|i|ii)intril
tinii', he may |iiiMt|ioni' ai'tion ami wait until a
.siilisi'i|iii'iit ilay. Ami so in siKtioiilKt |iiii\isioii is
I iiiaili' lor tin' loss i)f liallot lio\rs. Itiil it is iin|ior
I taut to rt'ail in I'liniii'itiiin with this tlii' |iro\ision
! of till' law of last yi'iii'. It aiiu'iiils si'ition ti'J, and
'it |)io\iiU'H as follows as ivjianls tlu' ri'liiining
ollii'ur ;
I " In Clint" H'ly (lepiity rctiiriiiiiK offloer has not iliily
oiii'loscil in Mio l,:illi)t box t!ii' siiiil stiiti'inriit of tlio
{ li:il|i>t |iii|>i'r< I'liiMiii'il l>.v liiiii IIS ri'i|iiiri'il l>y lliin Act, i>r
if I'lir any otiirr ciiii.-ic tlif sitiil ii'tiiriiiiin ntlici'r I'liiinot at
! till' iliiy and limir iipiHiinti'il by him lor lliiit piiipiiso
nsuiTtiiin tin' I'Xiii't niinihi'r of villi's nivon furi'iicli ciiii-
j diiiiiti', till' i'i'liirMi;iK ntlii'iT iniiy tlii'ii'iiixni inljuiMn In a
I'litiii'i' ilay mill Iniiir llie said siiiiiiiiiiiK.i>l> Hit' niiiiint'i' of
TDlt's (rivi'ii fur riioli (Niiiilidiili', iinilsd fnnii tiniii tn tinio,
! siiL'li ailjiiiirMiiii'iil or ailjournmoiit.i nut inline aiTKriKiite
jiapt'i's an- to lit' kt'pt si'iiarati'ly. ai.' to l.i' sralt'il i '" ''^''''"^ '"" """•^'■"
np in st'parati' piuka;,'t's. tlii' lontinls of thi'se i 'I'lii'ii' tlu' iluty of the I't'tni nim' olliiiT in rcf^anl to
j)ai;ka),'cs ari' to III' i-airfnlly iiotril upon tin- hack I loiiiitini; tlir voti-s is si't oiil ; uinl I riaini that
of till- I'livoloiK's, anil tlii'V ail' to hi' plaii'il in thi' . lookiiii,' at what the law inti'inls with icspoi't to
hallot lioNt's, ami till' hallot hiixi's aiv to lit' ii'tniiii'il j llii'st' voti's that are to lie snhjeet to appeal, that
"'riiiMli'imlv iiiliiniinir hIVh'it .-hall iiiiikr mil n itate-
nmnt nf tin' aci'i'lilt'd liiilhit iiiiin'r.'',iif till' iiiiiiiliiTiil viiten
Kivi'ii to eai'h I'liiiiliih.te, ut the hiilliil (iiipeis I'liiiiiti'il,
wlileli were ilopimilt'il hy porsmiM wIimm' riitlil tn lie reifH-
tereil on tlio liHt iif voter," anil to vote."
That is one elass
— "anil by pi-r-oiiH the i'xihi''ii)ii of wIiom' iihiiu'H from
tlio list of voler.i iippenreil by llie said M"! In lie the siili-
juetH of iiiidt'eiik'd appeal as aforeriaiil."
Here the i-'iinierations of these two elasses of
voters are still to lie kept ilistinet hy the ilepnty
retnrniiiK ollirer. If 've reail this seelion with the
worils that are intemleil to he supplied. « hiili is the
snhjeet of the lirst predieate. and which also is
• he inipiieil snhiei-t of the seeond predieate, it
woulil read as follows :
■ Tlio deputy rt'tnniinx otlieer .■•liiill innke out a stiile-
nient of the lU'eepted biiijol papers, of the iiiiinber of
votes triveti to einh I'liiididiito, of the bnllol papers
eoiiliti'd wliii'li were depiisili'd bv persons wliose riulit to
be ri'Kislert'd on llie list of voters iiii'l lo vole and of llie
number of vote.s niveii to eiii'li eaiididale by persons the
exeliisioii of whose names from the list of voters ap-
peared, Ac."
') that there are two distimt eiininerations, the
iinnieration of those whose ri;:ht to xole is nmlis
pnted, and another ennineration of tliose who.se
light to vote is a matter of appeal : <inil these
with theni to the retiirnino ollieer. Now. I ask
this i|iiestion at thi.s |ioint. for the purpose of fur-
ther showing what ednstnietioii must he put upon
those provisions of the law w hirli relate to the dis-
clmrgo of duties liy the retnrnilig otiieer hini.self.
If the returning otliter was to eoiint those liallots
imliscriniinately, if lie was to confuse the hallots of
these two classes, which the ilepnty retnrring
officer is roi|iiired to keep seiiarate. and w hicl. he
is instructed in the clearest ]iossilile manner to
kee]) separate, fo' what purpose would separation
he made V If the returning otliccr wlis not ealleil
uj)on to keep tliem separate and to inike separate
iidditioiis of tiiose two dillerent classes of voteis,
those about whose votes theie is no dispute, and
those that are the snhjeet of contention, why
should the ile|)uty returning otliccr he leiprred to
keep tlieiii separate'.' If they Were to lie added
together, then those provisions ]iointino mit with
such minuteness and detail the duties of the de|)uty
returning otlicer w oiild lie altogether w ithont mean-
ing, they would lie nugatory, they would ha\e no
force, they would he perfectly aimless. accom|ilish-
ing nothing, sinnily provisions altogether without
object. I do not so understand thcstalnle. I think
they are to lie kept separate for a speciHc purpose.
They yre to be ke|)t se|iaiate because there are to
be separate additions made by the retiiriiing ollieer
as well as by the deputy returning ollieer. The
next provision of the Act to which I w ish to call
the attention of the House is section ."ill. This
section provides that the returning olli; er at the
close (,>f the polls, after having receivcl all the
ballot boxes, shall proceed to open them in the
presence of the election clerk, tlie canilidates, or
their represeutati\ es, if present, or of at least three
electors, and .so on : and that the candidate who
has on counti.ig uj) the votes a majority of the
votes, shall be then declared elected. If you weie
to read that section by itself you would say that
I'ight to I'l'inain on the list must In; decided before
a |)ropei' return can be made ; and it is perfectly
clear fl'om that provision that the returning
o'licer is not in a )iosition to sum up the votes as
r;;ipiired by the law , as amended last session, until
the ipiestion as to the right of those |)artii's whose
\oles are in appeal is decided. Let us further look
■'t tile jirovisions of the Act on this subject. Hy
seetMi;i .'t,'! of the lOlectoral Franchise .\ct, it is
io;ivideil thai the juilge shall, upon receiving
the ;;,iid not ice of appeal, and copy of the decision
a)iiiealed from, apjioint aconveiii-jnt time and place
for the hearing of the appeal. What is meant by his
appointing a ciilivenielit time and place'' Does it
ni'/aii an indetiiiite time, a time that you cannot at
the moment the appointment takes place asceitaiiiY
1 do not think .so. I hold that it is clear from the
pi'ovisions of this statute that this cannot be the
case. The judge considered these matters in
November last. Certain lase.s were taken befoi'e
him on appeal. Me dealt with those cases. Me
decided that he would not hear any evidence
anew, that he would not make any investigation for
hiniscU, tha* he woiibl tak ' the evidence as it had
lieen taken by the re\ isili'i ollicel' and the report
of that otlicer, and then decide as to the I'ights o1'
thejiarties tr go on the list and remain tller(^
That Was the course he pursued in dealing with, I
think, thirty cases. With respect to those parties
who had been put upon the list at the preliminary
revision orat a preliniiiiary stage of theproceediugs,
and about whom notice has been given that those
names should be struck out on the ground that
the parties were not iiualilied, the revising otlicer
was inclined to hold, in fact lie did hold, that the
worils " not c|Ualitied " were not a sutlicient desig-
n.ition of the objection to the names of tho.se ])ar-
ties going on the list. In the meant iine an appeal
was had to the County Court judge from that deci-
sion, and the judge ex]iressed himself as follows : —
r
r
r
"Itliink tlin iidlico wuh invii'iiil iiiidor tliu Act. I do
not uiili'r iiitti nil iii'iiili'iiiii* di^ciiHsion as to wlictlii'r it
wax null iiiid void I lliiiik nil tliiil I am n'qiiirod to du
is to ilotiTiuiiu' wlicthor it wim a valid < r invalid iiotioc,
and I Hay it wan invalid, and my reason lor iIiiih ili'iddiiiK
in that no kioiiiiiIh aro Hlatud liy tlicin wli,v llu; man's
naino fliniilii In- ri-movivl, ami tliiix it \* invalid under llio
Act. Ho I'ar ac tin- rest of tlio aiipeal in |irt'.'<ontp<I lor my
contidcratioii, I am of opinion tliat under tlio|<3rd Hei^tiun
my power id eonlinecl to the aetion of the reviHintt otiieer
witli tho lint ; that i.1 to siiy, aH to tliu pro|ier admicHion of
iiameH nr exelu.Hion id' Ihuni, heiiiK a:i to somethiiiK whieh I
is or hIkiiiIiI he in the lint or which oimht not to he in it. |
It ia not Raiil that there is an appeal t<i the county jiidtfe |
aa to the proeee<linKS(d'thc rt'vi.sinKollicurwhich would uc
a eompridiensivi term such an is iisud in section LI). I
connidcr that \ have no authority to interfere .vitli t!iu I
action <d' tho rcv'KinK otficer in amenilinir or ailjiMiriiiiiK
the court to a future tliiu'. Whatever may he the im-
portance of my ruling as to the iiuestimi whether the no-
tice ill gucstion is iiisiinicicnt or invalid and null and
void, 118 lam pressed to decide,! ilo so, and rule as I have
(laid, that it is invaliil under I lie Act, and so far the appeal
in siistaiiieil, hot in respi'ct to my aiilhorily to interfere
with tlic revising otlicer'n power to order amendment or
to adjourn Iho court 1 do not ciilerlaiii the appeal "
N<)\K, Mr. Speakfr, tiio tovisiiij,' oliirur, (iiimi tiiiit
niliiij^ of tin.' lyillity jiiilgc, letiised to proi'ccMl.
Mt! luul iicljoiiini'il liis comt to ii fiitiiic day aiui
III" luul givoii till' imitifs Icavn to aiiiciid tiieii
lioiicf, Imt after tliis (h'li.sioii hi' icfuHCMl to juo-
coed. 'Mic County Coiut jndgf liiiiisulf adiiiits
lluit lie liad not tlic powi'r to dcu with this inies-
tioii of proci'diii'c, tliat lu^ iiad no iiiithoiity under
the Act to fxpiess an o|iiiiion on tlic .snliject or to
adjudicate on it, and the ,sii!.;i!ct wiim taken ln'foie
tile ( oiiit of (^iR'cH « IJcncii. An application w UK
there made f.ir a writ of inunilainiis to compel the
fevisirg otKeer to proceed and to diselmrge IiIh
duty, wliieli writ wan granted. The c'ecisioii i.f
the whole court was tliis : tliat tiie notice was
HutHcieMt ; tliey di.ssented from the view takeii liy
the county ju( ge ; they held " not (pialitied " was
a sullieient iiii'.ice. Kvery "ne of tlie.se ])ef.soiis
were on tlie vi ter.s" lists for .some (pialiticution or
ol.iv,!', and certainly ■" not <|iialilied " meiini not
i|Ualifieil iiitlie chaiaeter in which they were entered
on the li.st. The Court oft^ueen's iSeneh tln!,'efoi'e
ludd in the first place that the notice wassutJicient,
and in the second nlace that no appeal is given liy
the Act tothecoiin.y j"''gcfr<ini tiierevising olHcer's
decision. Therefore, that the proceedings hefore
the County (V/Uit judge were co/yr/// iioiijiii/lri , and
8otlie.se ])roeeedings heiiig nugatory were set aside.
'I'lie revising oHicer acting iijion the decision of the
Court of (.Queen's lienoh, proceeded to ad,iidicate
upon these names, and 'J"2S of tiieiii, all the names
that are in controversy, were struck off the voters'
lists. Tliat wastliei'ecision, altlioiigh they tiie suli-
.se(|ueiitly printed on the list. There can he no dis-
liute whatever that the decision wasthat they should
lie .struck off. Now, there was un appeal .roin that
decision of the Court of t^ueen's Mciicii to v he Court
of Appeals, ,111(1 the Court of Appeals held tliat as
the rev ising oliicer had acted upon the writ and
obeyed the command of the court, that there was
nothing hefore the court to decide, and that they
were not called upon to .suy whether the Court of
(Queen's Bench had tlie powi r to order the I'evising
orticer to proceed or not. He had .icted ; he
could not iecall what lie had ilone, he could not
undo w hat ho had iloiie, and the validity of his
act would not at all he .•ifi'ecteil hy the ipiestioii !
v.hether the Court of (Queen's IJencli possessed !
this power, or whether it did not. U'.it the Court of |
Appeals held tlie notice was sulticient. And so the |
mutter at(M)(l. Now, .Sir, in the lirst place,
when the iip|ilieiition was made to the Court
of Queen's KimicIi and the revising oliicer pro-
ceeded with the work of revising the list, an
appeal was hail ; an application w.is made in the
meantime to the county judge to consider hy wi y
of appeal the decision of the revising ollic-'r in
reference .ii tlu'se names. The county judge sai'l :
I will not adjuili(!ate u|ion the matter at present, 1
will postpone the coiisideralion of the s.iliject until
there is a decision hy the Court of Appeals. There
was a decision liy the Coiiit of Appeals, and then
an appeal was had from the decision of the Court
of Ap|>eaU to the ,Su]iremt! Court of Canada, and
when tin; second aiiplicatioii was made the County
Court said : I will not adjiiilieate until there ia ii
decision hy the Si premt^ Court, anil so there luw
la^en no time and no plaiM: lixeil to this day for
the' consideration of these appeals. I wish to call
the attention of the House, in the first jilaee, to
this matter. It seems to me, from looking at the
provisions of the Act, that it is only when iKpiestion
of merit is involved, a (piestion of^tlie right of the
party as a voter to lie on the voters' lists, that there
is an appeal f-om the decision of (!'e revisingoHicer
to the ( oi'.nty Court judge. On a ineie matter of
procedun' since the revising otHci r is not hound
to conform to the ordinary rules of a court of
justice, liiit is given a greater latitude to enalile
hini to make his proceedings effective, in view of
the ahsence of knowledgt^ of the law hy the voters
that in that matter he is acting in acconhiiice
with his discretion, and a matter of discretion can-
not he a matter of ap)>eal. It is not iireteiided —
or at all events it has not heen jiretelided that
these jiersons had any right to he on the list, or
that tliey were in any .sense(|ualified hy law to vote.
Thai was not the contention ; the contention was
that the notice to strike oH'liad not heen sufficiently
delinite, and that contention the Court of Appeals
and the Court of (Queen's Bench both held was an
erroneous view. The re\ising otfieer jiroceeded ;
he heard the evidence so far as there was evidence
to submit, and the names of the.se per.sons were
struck off' the roll. Now, if we look at section 04
which ))roviiles for a recount under certain circnin-
stances, among other things w liic'h are provided for
is this :
"That any person voting at such election, whoso
name was included on any list of voters used at such elec-
tion, or whoso name was excluded from any such list, and
wliose right to have his nr lo so included on the said list,
or the exclusion of whoso name from such list, as the case
may be, appeared hy such list to be the subject of an
appeal pcndniR and undecided under the provisions of the
Electoral Franchise Act, and that judgment has been
rendered on sucli appeal deciding tliat such person w«s
not entitled to have his name so registered upon said
list, or that tho name of such person was properly ex-
cluded therefrom, as the case may be."
\ow, that is one class of persons, that is one ground
upon which a recount hy tlie County Court
judge may he .sought, hut I ask the attention of
the House to subsection 2 of this section, wliiuh
reads as follows : —
"If any such appeal in respect of any person whose
name is entered on the poll book as having voted at such
election if not decided before the expiration of the said
four day.) allowed for the making of an application for a
recount, the time for the making of such application for a
recount on the ground of the result of the decision of any
such appeal shall be extemled for and until the expira-
tioi. of six days after the decision of any such appeal."
It is not stated that the rccojuit shall be postponed ;
lint llie MUti'iiifiit in lluit iliftiiiif for iimkiiiK «iiili
ii|)|>li(.'iiti<m for u icidiiiit a|i|ili<ii*.i<)ii Inwhofur
why, to tlu-iuilj{f Hlmll l>c poHtpoiitil imlilllu'
t!\|>inttioii ot Mix ilajH iil'li r tlii' ilfciNioii ot the
iipjK'iil. I woulil liki' to know liow it i^ powHJMf
for tli«" rt'tiiriiing oilid i to inakf a rt'tiii ii ilininji
that iiuriocl of tiinr, whih' the 'iiii'Htion of appciil is
umii-ciiU"!. It ts pfiffctly ticar thai tho pally
h.VM nix (hiyH iiftt-r the nppfaJH aif (h'ciiU'il t akf
thih application. Now , it it wi-ri^ poMniliU- fof tin;
tctniiiini, olliocr to injikf hiw ictmn hrforu that
pi'iiod of liini', th'Mi it in pcifi'ctly o)(\ iouH liiiit in-
han not tiionix ihiy« toniaki-the application, that
he wonlii not havi-any lime, on tliiH ^'ifnnid. t nkc
tliu apiilication. lit' iinn<H inakf the appliiation
aftor tlif ii'tnrn is made ; and it in clear an noon
day, that nndcr iIuhc proviNionH, the rclnrnini,'
olHccr iH estopped from making a return nntll tin se
appeals are decided. I callyonr attention fnrther.
Sir, to tile fac't tint the two classes of voters nnder
Hei!tion (iH are to he kept distinct. The retnrning
ortieer is to enumerate nnder one cI.ihs those who
are entitled to vote, to whom iioexception is taken,
and he nnist make a separate list for those who.se
ca.ses are in appeal. Now, these twodasses cannot
Im^ fu.sed together in one enumeration, until this
(juestion of appeal isileeiiled ; aniltlial appeal in not
to lie exercised in such a way as to taki' from the
i>arty aggrieved his riglit to make the application.
He is not forced to make his application at
tince. It is not an application which after
it is made is to he postjioned. It is this fact
which is kept clearly in view hy this suh-section,
that until six days elapse after the.se appeals are
disposeil of, the returning otlicer cannot make a
return. And why should he ? Wiiat right "'.us he to
do so? .Suppose 4<KI or TidO names were im])ro])erly
put on the list, and were made a suliject of appeal
just on the eve of an election, is it jiossilili' that it
could he seriously argucil that this House ! as dis-
charged its duty in so incom|ietent a way, that it
has .so far failed to make provision for the pro|ier
expre.ssion of jiidilic opinion, that tliese ■ otes could
he counted hefore it slioidd he finally determined
whether the names ought to he on tlie voters' list
or not V It ia clearly the intention of the law that
s'ection ()(t shall not lie read hy itself. It must he
read in connection with what follows. It is not
that sole section which decides what art! the duties
of the returning oHicer. His duties are liniiced and
exjdained further hy section (il ; they are also
limited liy section (i'2, where, if a hallot hox is
missing, an adjournnieiit is provided for, notwith-
standing the clear and jxisitive declarations of
.section ()() ; they are Turiher limited hy .section O.S ;
and they are lii.dted hy the aineiuliricnt of lust
year, which •■'■.iws tiiat the votes cannot he counted
until it is k.iown whether those per.sons are really
entitled to he so counted or not. In conformity
witli ti'.io coiiscruction cf the law, you have thi.'s
provision of section M :
" If any such iippeal in rcfpect of any porson wliost'
itiiinc is entered on the noil book ii." luivirift voted at such
election is not decided belorc the expiration of the said
I'rur day.'* allowed for the uiiiking of an iippli('ati(ai for
» recount, the time for themiikiiigof .«ueh apiiliciilion for
a recount on the ground of the residt oftliedeci.''iiin of any
appeal shall be extended for and until the expiration of
six days after the decision of any such appeal."
\yiiy, Sir, if you were to ])ut any other construc-
tion on the Act, yon would leave a party in an im-
portant case without a remedy, except hy the active
interfei'ence of this House to protect itself against
a K"oMM wrong. I do ,iot think we are called uimiii
to put such a narrow construition on the .Act. \\o
must read all |»arts of the Act togtdher ; we miiHt
look at its Hiiirit and at the intention of I'urliu-
meiit as discloNed in the Act ; ami it is clt-ar, in
view <if these provisions for a recount, that thi*
retiiridiig otlicer cannot make a return until it ih
decided wliither those paiticM who have \(ited,and
whose names are in appeal, weie nr were not
j entitled uinler the law to have the elective fran-
I chise. Now. Sir. let me read some circumslalieuH
I coniU'cted with the declaration. Mi. I'ritchard iit
the returning otlicer in the cjty of London. Mr.
I'ritchard, when asked todelay making hisi|e( hirii-
tioii in accordance with the amendment of tlielaw
of last year, said :
" 1 have no lie.-ilation or diiiiht in ilie matter. The
(lueflioii of tiie uiidreiiled appi-iiU in in the haiid.s of tliu
Court of Appeal, and I have iiolhiiiK to do with it "
Why, .Sir, he had everything to do with it. Then
yr. Magee, the counsel for .\lr. Hyman, said :
"I would call your attention to llm words id' suh-nce-
tion 2 fd'seclion t)2, and if for any oilier <'»u8e, the ."iiid
returning ntlii-er cannot at the day and hour iippoinled by
him hir that purpose aiicerlaiii the exact number of voles,
Ac, ho may tliereuiion adjourn to a future <lay."
Now, the iiumher of votes was not aseertaiiiahle,
liecaiise those parties' right to vote was a sulijt'ct
.-till pemling. The returning otlicer opened liallot
liox numlier one and declared 1'A votes polled fur
Mr. Calling and !M) tor .Mr. Hyniaii. Then Mr.
Mage»' said :
" I call your attention to (lie fact that there are six
of tliest' ballots cast for t'lc lion. .Mr, Carliiig which were
deposited by persons w .o.«e right to be registered is dis-
puted."
It seems that instead of the ditferent ehisses of hal-
lots heiiig kept separates as provideil for hy .section
'>H, they were mingled together, Mr. I'ritchard,
the returning otlicer, said :
" I may as vyell state here that I have nothing to do
with tlie question of the undecided appeals, i shall simply
take the voles that are recorded for Mr. (,'arliiig and for
Mr, Ilyman."
Now, .Sir, that is the (niestioii of first importance
that tliis House is called upon to consider : Hail he
nothing to do with it'; Had he a right to |)idceod
to sum up the good and the i|nestioned votes
together'; I think it is clear from the provisions
of the Act, that he had not to do it, that he had
no ])ower or right to make a return until that
(|Uestion was decided. If he made a return, it is
(juite clear that it could only lie a special 'eturii —
a return stating that there were so many votes
polled for Mr. Carling and so many foi'Mr. Hyman
ahout which tiierc was no (|Uestion, and that there
were sii many for .Mr. Carling and so many for Mi'.
Hyman which were under appeal. I»iit I think,
looking at the |)rovisionH of the .-Xi^t of last year,
that it is (|uite clear that no return of any sort
<iught to he made ; no iH^turn such as the law con-
templates can he made until it is decided whether
these votes are t<i he struck oH' the list of those
untitled to vote, or whether they are to remain.
Until that takes place it is not possilile to say with
alisolute certainty who has the majority of legi'.l
votes cast at an election, 1 am not going to dis-
cuss this suhject further. I have hronght this
matter to the attention of the House, an<l
have called its attention to the important (pies-
tioii of the necessity <if insisting that all
J-
^m
otlii'frM uliiill rMiifiirtii to tlif liiw miiiI iliHchurup
llu'ir iliilit'M ill II fiiir iiml iiiipiii'tiiil iiiiuiiu'r. I uiii
iiif(ii'iiii'(l liy ti'l(').'r;uii tliitt tilt! county J'kIk*' '■'"*
today tlic oiH^Htiiiii of the umlfi'iiltMl ii|i|il'iiIh licfori"
|# liiiii, ami, alll'ioiiKli in tlii' lutti'i part of Xom'IiiIdt
oi- tin? faily part of Dccrnilicr lie iiili'il that lit-
woiilil not lalit- iiny cn iijcncc m lu'ii appciilH weir
niiiilitliy the Ri'fonn ( 'oinniittt't-, Inii woiili! niniply
iluciiUi the i|U('.stioii on tlic (■viiU^ni't' hh reportcil hy
the ri'viMint; otliitT, iii'VciiliflcuM to day ii dilU'iiMit
iiiU' Ih to lit' loloplcci in ffganl to the otIuM'
Hiili'. I hope that niiiy pi'ovf to h,' an iiiitoiiinltMl
Htiitt'iiiunl, oi', if il iHtnic, that His llononr may
nuviiiMiilt.'i' liiH ilctt'i'iiiination anil may act upon the
wiini! rule throiif^hont. I think that t\w import-
«)TTAWA !
I'nntrd liy H. R Dawson,
I'rintcr to tlu' <^n<'<'n'» Mo«t Kxct'lhsnt Miiji-Mty.
1889.