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(3) If he is adjudged bankrupt or in
solvent, or applies for the benefit of any law relating to insolvent debtors, or becomes a public de
faulter: (4) If he is attainted of treason or convicted of felony or of any
infamous crime: (5) If he ceases to be qualified in re
spect of property or of residence; provided, that a Senator shall not be deemed to have ceased to be qualified in respect of residence by reason only of his residing at the seat of the Government of Canada while holding an office under that Government requiring his presence
there. 32. When a vacancy happens in the Senate by resignation, death, or otherwise, the Governor-General shall, by summons (i) to a fit and qualified person
fill the vacancy. (i) “By summons.”—See note (i) to section 24, and also chapter VIII. ante, p. 170.
33. If any question arises respecting vacancies in the qualification of a Senator or a vacancy
in the Senate the same shall be heard and
determined by the Senate (i). (i) “ Determined by the Senate.”—Up to the date of Confederation, the legislatures of the various provinces had
Summons on vacancy in Senate.
Questions as to qualifications and
retained in their own hands the jurisdiction to determine all questions relating to the status of their members, and for some years after Confederation, the parliament of the Doininion exercised like jurisdiction. Section 41, however, of the B.N.A. Act (see post) impliedly empowers the Dominion parliament to provide otherwise as to the House of Commons, and as the notes to that section will show, this power has been acted upon. No similar power is given by the B. N. A. Act to alter the provisions of this section 33, as to determining the status of members of the Senate. As they are not elected by popular vote, question can hardly arise as to the mode of appointment, unless indeed appointments were made in excess of those allowed by the Act. As the various matters which work disqualification, are, with the exception of the failure to give attendance in the Senate (see section 31, sub-section 1), matters as to which questions of disputed fact might arise, it may be worth consideration whether the determination of these matters should not be left to the courts. Up to the present time however, none of the sub-sections of section 31 have been invoked, with the exception of sub-section 1, and upon that head, the proof of disqualification would appear in the Senate's journals.
34. The Governor-General may from appointment time to time, by instrument under the Great Seal of Canada, appoint a Senator to be Speaker of the Senate (i), and may remove him and appoint another in his stead.
(i) See R. S. C. (1886), chapter 11, section 24 (a), which provides for a salary of $4,000 per annum for the Speaker of the Senate. See note to section 44, post.
35. Until the Parliament of Canada Quorum of otherwise provides (i), the presence of
at least fifteen Senators, including the Speaker, shall be necessary to constitute a meeting of the Senate for the exercise
of its powers.
(i) “ Until the parliament of Canada otherwise provides.”—See Valin v. Langlois (5 App. Cas. 115), in which it was held that under these same words, in section 41, the Dominion parliament has full power to pass laws in relation to the various matters enumerated in that section. It follows, therefore, that (apart altogether from the provisions of the Colonial Laws Validity Act, 1865, about to be noted) the “ quorum " of the Senate may be altered by the Dominion parliament. Compare section 48, post, as to the “quorum” of the House of Commons. This latter cannot-so far as the B. N. A. Act affects the questionbe altered by anything short of Imperial legislation. But, in reference to the constitution of all colonial legislative bodies, the provisions of the Colonial Laws Validity Act, 1865, must not be overlooked. By the fifth section of that Imperial Statute, it is enacted: “ 5.
Every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers and procedure of such legislature ; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of parliament, letters patent, Order in Council or colonial law, for the time being in force in the colony."
It may perhaps be contended that this section cannot apply to Canada, as the B. N. A. Act, 1867, is of a later date; and, certainly, so far as the latter statute contains express provision in reference to the matters referred to in the section quoted, its provisions would govern.
No colonial legislature, it is submitted, can under this section enlarge the sphere of its legislative jurisdiction, and, a fortiori, no such authority is conveyed by this section to
any legislative body in Canada, where the field for the exercise of colonial legislative power is divided in such express terms by the B. N. A. Act. The section relates to the organization of the legislative bodies throughout the colonies, their powers other than legislative, and the mode in which their functions are to be performed, and has no relation to their sphere of authority. It is submitted, therefore, that the Dominion parliament has full power to alter these various provisions of the B. N. A. Act, relating to powers and procedure, except where express or implied limitation upon such power (as, for instance, by section 18, ante) is imposed by the Act.
So far as the provincial legislatures are concerned, express power to amend the provincial “constitutions (except as regards the office of Lieutenant-Governor) is conferred by section 92 (sub-section 1), of the B. N. A. Act, and the maxim Erpressio unius exclusio est alterius may perhaps be invoked in denial of the power of the Dominion parliament along this line. The argument cannot apply to the question of parliamentary“ procedure,” but it does very strongly negative any power in the Dominion parliament to alter its “constitution,” that being a matter fixed by the agreement of the federating provinces and exhaustively dealt with by the B. N. A. Act. The difficulty is, perhaps, to define what provisions of the B. N. A. Act relate to the “constitution” and what to the “procedure” of the Dominion parliament. See further upon this question, sections 69 and 92 (sub-section 1), post, and notes thereto.
36. Questions arising in the Senate Voting in shall be decided by a majority of voices, and the Speaker shall in all cases have a vote, and when the voices are equal the decision shall be deemed to be in the negative.
(i) “ Voting in the Senate.”—Compare sections 49, 79, and 87, and see note to last section.
The House of Commons.
37. The House of Commons shall, subject to the provisions of this Act (i), consist of one hundred and eighty-one (ii) members, of whom eighty-two shall be elected for Ontario, sixty-five for Quebec, nineteen for Nova Scotia, and fifteen for
New Brunswick. (i) “Subject to the provisions of this Act.”—See section 51, post, providing for a re-distribution of the representation, as between the various provinces, after each decennial census. See also section 52, which provides that the number of members of the House of Commons may be, from time to time, increased, provided the proportionate representation is not thereby affected. Upon the admission of Prince Edward Island and British Columbia, and upon the formation of the Province of Manitoba, the representation in the House of Commons from those provinces was determined, but subject in each case to re-distribution under section 51. See Part IV., post. The North West Territories would seem to be in a peculiar position with regard to their representation in the House of Commons as well as in the Senate. As to the former, see note (i) to section 21, ante p. 271. As to the latter, see the B. N. A. Act, 1886, which apparently does not limit the power of the Dominion parliament by any reference to section 51 unless, indeed, the provision (section 3) that the B. N. A. Acts of 1867, 1871, and 1886, are to be construed together, would have the effect of making applicable to the representation of the territories, the provisions of section 51. This can hardly be, however, as section 51 is distinctly limited to the distribution of representation as between the “provinces.”
(ii) "181 members.”—There has just been passed by the Dominion parliament a re-distribution bill, consequent upon