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the census of 1891, which apportions the membership as follows: (55-56 Vic. c. 11). Ontario

92 Quebec

65 New Brunswick

14 Nova Scotia

20 Prince Edward Island

5 Manitoba

7 British Columbia



To which add the representation to

which the N. W. Territories are
entitled under R. S. C. c. 7. .

of House of Commons.

Grand total 213 38. The Governor-General shall from Summoning time to time, in the Queen's name, by instrument under the Great Seal of Canada, summon and call together the House of Commons (i).

(i) See chapter VIII., ante, p. 168, as to the exercise by the Governor-General of the prerogatives of the Crown, in connection with the summoning, proroguing and dissolving of parliament, where will also be found noted the difference in the meaning of the word “summon” as applied to the members of the House and of the Senate respectively.

39. A Senator shall not be capable Senators bas of being elected or of sitting or voting as a member of the House of Commons.

40. Until the Parliament of Canada Electoral disotherwise provides, Ontario, Quebec, Nova Scotia, and New Brunswick, shall, for the purposes of the election of mem

of Commons.

tricts of the tour Provinces

of existing


bers to serve in the House of Commons, be divided into Electoral Districts as follows :— (Here follows an enumeration (with reference to schedules) of the electoral districts in the provinces named. In view of what appears in note (i) to section 41, it appears needless to reprint this

enumeration.] Continuance 41. Until the Parliament of Canada. until Parliae otherwise provides (i), all laws in force in da otherwise the several Provinces at the Union relaprovides.

tive to the following matters or any of them, namely,—the qualifications and disqualifications of persons to be elected or to sit or vote as members of the House of Assembly or Legislative Assembly in the several Provinces, the voters at elections (ii) of such members, the oaths to be taken by voters, the Returning Officers, their powers and duties, the proceedings at elections, the periods during which elections may be continued, the trial of controverted elections (iii), and proceedings incident thereto, the vacating of seats of members, and the execution of new writs in case of seats vacated otherwise than by dissolution,--shall respectively apply to elections of members to serve in the House of Commons for the same several Provinces.

Provided that, until the Parliament of Canada otherwise provides, at any elec

tion for a Member of the House of Commons for the District of Algoma, in addition to persons qualified by the law of the Province of Canada to vote, every male British subject aged twenty-one years or upwards, being a householder, shall have a vote.

(i) Until the parliament of Canada otherwise provides.—The parliament of Canada has long since otherwise provided, and these four sections (40-43) are now therefore practically effete, except in so far as they confer power to legislate upon the various matters referred to in them. See note (iii) to this section. The electoral districts in the various provinces and territories of the Dominion will be found defined in the Act (55-56 Vic. c. 11) which has just passed the Dominion parliament. The law upon the various matters referred to in section 41 will be found in : R. S.C. (1886), c. 5.-" The Electoral Franchise Act.”

c. 8.-—“ The Dominion Elections Act.”
c. 9.-" The Dominion Controverted Elec-

tions Act.”
c. 10.-Providing for commissions of enquiry

in certain cases. c. 11.-See sections 9 to 19, sub. tit. “inde

pendence of parliament”; and the various amendments to these Acts.

In Willett v. De Grosbois (u), certain pre-Confederation laws of the old province of Canada in respect to election matters were held to be still in force in Quebec. The Act, 23 Vic. c. 17 (1860), made void any contract referring to or arising out of a parliamentary election, even for payment of lawful expenses. The Dominion parliament, after Confederation, passed an Act respecting Dominion elections, but not containing this or any like provision, and it was

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(u) 2 Cart. 332 ; 17 L. C. Jur. 293.

held that this provision, never having been repealed, was in force in Quebec as respects Dominion elections, under this section 41, and section 129, post, and that therefore a promissory note given as a contribution to the expenses of a subsequent Dominion election, was void. In 1874, however, this old statute was repealed so far as it affected Dominion elections (37 Vic. c. 9, s. 133), and it was expressly enacted that thereafter pre-Confederation provincial laws touching elections should not apply to elections to the House of Commons.

(ii) “ The voters at elections.”—The law upon this subject, so far as relates to elections to the House of Commons of the Dominion parliament, will be found in “ The Electoral Franchise Act” (R. S. C. c. 5). Compare with this section 41, the provisions of section 84, post, relating to elections to the legislative assemblies of the provinces. In reference to provincial “voters' lists” the municipal machinery is utilized, but “the unity in federal and provincial electoral matters has been completely dissevered” (v), and for the Dominion an entirely distinct and independent system has been adopted. The work of preparing the lists is committed to revising officers, sitting in “ federal courts.” In connection with these courts arose (w) the question of the jurisdiction of provincial “superior” courts to supervise the exercise of judicial functions by federal courts; this question will be found discussed in chapter XI., ante, p. 240, and in the notes to section 101, post. We may here note, however, that the decision in Re Simmons and Dalton was put upon the ground that the right to vote at an election, Dominion or Provincial, is a “civil right” within the meaning of section 92, sub-section 13, and that therefore a provincial superior court may, by prohibition, restrain a revising officer from improperly interfering with such “civil right.” The point is referred to in Théberge v. Landry, referred to in the next note. In Re North Perth it is thus dealt with :

(v) Per Meredith, J., in Re North Perth, 21 O.R. at p. 546. (rc) Re Simmons and Dalton, 12 0.R. 505; Re North Perth, 21 O.R. 538.


Now, the group of statutes relating to the election of members to the House of Commons

are all of the proper competence of the Dominion. In particular, Ontario has no legislative power over the electoral franchise of the Dominion. That subject has been regulated by the Parliament of Canada, and a new jurisdiction conferred for the ascertainment of duly qualified voters in and for the Dominion.

“ This legislation does not trench upon .property and civil rights in the province,' as was intimated in Re Simmons and Dalton, 12 0. R. 505. On the contrary, this class of legislation is contemplated and sanctioned by the 41st section of the B. N. A. Act.

Ontario has her own like sphere of the electoral legislation provided for in section 84 of the same Act. Neither interferes with the other, because they occupy different planes of political territory, but both are essential for the efficient working of the Canadian system of dual government.

“The subjects of this class of legislation are of a political character, dealing with the citizen as related to the Commonweath (whether province or dominion), and they are kept distinct in the Federal Constitutional Act from matters of civil rights in the provinces, which regard mainly the meum and tuum as between citizens. It is, in my view, rather confusing to speak of the right of voting as comprehended under the civil rights,' mentioned in section 92, sub-section 13 of the B. N. A. Act. This franchise is not an ordinary civil right; it is historically and truly a statutory privilege of a political nature, being the chief means whereby the people, organized for political purposes, have their share in the functions of government. The question in hand, therefore, falls within the category not of civil rights in the province,' but of electoral rights in Canada.”—Per Boyd, c.

We may also refer to Valin v. Langlois (5 App. Cas. 115), in which it was intimated that, apart even from this section 41, “ the administration of justice in the province could not properly be construed as covering the trial of controverted election cases, arising out of elections to the House of Commons of Canada. See also the next note.

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