House of Commons Procedure and Practice
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4. The House of Commons and Its Members

[151] 
Canada Elections Act, R.S.C. 1985, c. E-2, s. 177.
[152] 
Canada Elections Act, R.S.C. 1985, c. E-2, ss. 177-85.
[153] 
In the event of a tie after a judicial recount, the returning officer casts the deciding vote (Canada Elections Act, R.S.C. 1985, c. E-2, s. 184(2)).
[154] 
Canada Elections Act, R.S.C. 1985, c. E-2, s. 189.
[155] 
Canada Elections Act, R.S.C. 1985, c. E-2, s. 192(1)(b) as amended by S.C. 1993, c. 19, s. 100.
[156] 
Canada Elections Act, R.S.C. 1985, c. E-2, s. 195.
[157] 
Canada Elections Act, R.S.C. 1985, c. E-2, s. 196(1).
[158] 
See, for example, Journals, January 17, 1994, pp. 2-9; September 22, 1997, pp. 1-7.
[159] 
Parliament of Canada Act, R.S.C. 1985, c. P-1, s. 28(1). See, for example, Journals, December 12, 1988, pp. 7-8; February 6, 1995, p. 1075; June 1, 1999, p. 2033. In the absence of the Speaker, any two Members may address the warrant to the Chief Electoral Officer (see s. 28(2)). See also section entitled “Vacancies in Representation”.
[160] 
Parliament of Canada Act, R.S.C. 1985, c. P-1, s. 31(1) as amended by S.C. 1996, c. 35, s. 87.1.
[161] 
Canada Elections Act, R.S.C. 1985, c. E-2, s. 79(1).
[162] 
Canada Elections Act, R.S.C. 1985, c. E-2, s. 329. See also Parliament of Canada Act, R.S.C. 1985, c. P-1, s. 31(3).
[163] 
Election Expenses Act, S.C. 1973-74, c. 51.
[164] 
Canada Elections Act, R.S.C. 1985, c. E-2, s. 2.
[165] 
Canada Elections Act, R.S.C. 1985, c. E-2, ss. 208-47 as amended by S.C. 1993, c. 19, ss. 106-8, and S.C. 1996, c. 35, ss. 53-4. See also sections 14 and 15 of the Thirty-Fifth Report of the Standing Committee on Procedure and House Affairs, presented in the House on June 18, 1998 (Journals, September 21, 1998, p. 1039), where election expenses and spending limits are discussed.
[166] 
Canada Elections Act, R.S.C. 1985, c. E-2, s. 210.
[167] 
Canada Elections Act, R.S.C. 1985, c. E-2, ss. 228, 230(1).
[168] 
Canada Election Act, R.S.C. 1985, c. E-2, s. 236(1). In 1966, a question of privilege was raised in regard to the validity of votes cast by a Member who had failed to file his return of election expenses on time. A few days later the court issued a ruling excusing the Member for having failed to file his election expenses return. Speaker Lamoureux subsequently ruled that the House is the judge of its own proceedings regardless of any court order. The Speaker added that it was the House, not the Speaker, which had the authority to make decisions regarding the exercise of Members’ rights (Debates, February 21, 1966, pp. 1509-11; February 28, 1966, pp. 1843-4; March 1, 1966, pp. 1939-40).
[169] 
Canada Elections Act, R.S.C. 1985, c. E-2, ss. 241-3. Fifty percent of the candidate’s deposit is also returned if he or she obtains 15% of the valid vote cast in his or her electoral district.
[170] 
Election Expenses Act, S.C. 1973-74, c. 51, s. 11.
[171] 
An Act to amend the Canada Elections Act, S.C. 1977-78, c. 3, s. 45.
[172] 
Canada Elections Act, R.S.C. 1985, c. E-2, s. 257.
[173] 
The principal statute is the Dominion Controverted Elections Act, R.S.C. 1985, c. C-39. Others include the Corrupt Practices Inquiries Act, R.S.C. 1985, c. C-45; Disfranchising Act, R.S.C. 1985, c. D-3; Canada Elections Act, R.S.C. 1985, c. E-2. The Corrupt Practices Inquiries Act was adopted in 1876 and provides for the establishment of a commission of inquiry to investigate the existence of corrupt or illegal practices at the election of Members of the House of Commons (see S.C. 1876, c. 9 and c. 10). The Disfranchising Act was enacted in 1894 and provides for the presentation to the courts of a petition alleging bribery in an election and provides for the disenfranchisement of electors who have taken bribes (see S.C. 1894, c. 14).
[174] 
Canada Elections Act, R.S.C. 1985, c. E-2, s. 269; Dominion Controverted Elections Act, R.S.C. 1985, c. C-39, ss. 50, 51, 54, 57; Criminal Code, R.S.C. 1985, c. C-46, s. 750 as amended by S.C. 1995, c. 22, s. 6.
[175] 
Bourinot, 4th ed., p. 134. See also Corrupt Practices Inquiries Act, R.S.C. 1985, c. C-45. Any 25 or more electors of a district may sign a petition stating that no petition charging the existence of corruption or illegal practices has been presented under the Dominion Controverted Elections Act and that corrupt or illegal practices have, or there is reason to believe that corrupt or illegal practices have, prevailed at the election of a Member (s. 3(b)). The petition must be presented to the House of Commons either within 60 days after publication in the Canada Gazette of the notice of the return of the writ of election by the Chief Electoral Officer, if Parliament is sitting at the expiration of the 60 days, or if Parliament is not sitting, within the first 14 days of the meeting of Parliament (s. 4). The petition would be presented to the House by a Member. If the House agrees that corrupt practices did take place or may have taken place, or that the matter should be further investigated, the Actprovides that the House may by Address represent to the Governor General that a petition in the proper form has been presented to the House and that the House prays the Governor General to cause an inquiry to be made by one of the persons listed in the Act (s. 3).
[176] 
See, for example, Debates, February 2, 1938, p. 105.
[177] 
Debates, July 20, 1943, pp. 5092-103.
[178] 
An election petition is “a petition complaining of an undue return or undue election of a member, of no return or a double return, of matters contained in a special return made or of any unlawful act by any candidate not returned by which he is alleged to have become disqualified to sit in the House of Commons” (Dominion Controverted Elections Act, R.S.C. 1985, c. C-39, s. 2(1)). See section below, “The Election Petition”.
[179] 
Dominion Controverted Elections Act, R.S.C. 1985, c. C-39. See also the Thirty-Fifth Report of the Standing Committee on Procedure and House Affairs, presented in the House on June 18, 1998 (Journals, September 21, 1998, p. 1039). The Committee recommended that this Act be repealed and its provisions incorporated into the Canada Elections Act (see section 10 of the report).
[180] 
See Journals, November 21, 1867, pp. 26-7; May 4, 1869, p. 57; March 1, 1871, p. 39; October 27, 1873, pp. 120-1.
[181] 
For a historical perspective on controverted elections, see Bourinot, 1st ed., pp. 117-23, and Norman Ward, “Electoral Corruption and Controverted Elections”, Canadian Journal of Economics and Political Science, Vol. 15, No. 1, February 1949, pp. 74-86.
[182] 
Controverted Elections Act, S.C. 1873, c. 28.
[183] 
Dominion Controverted Elections Act, 1874, S.C. 1874, c. 10.
[184] 
Patrick Boyer notes in Election Law in Canada, Vol. 2, Toronto: Butterworths, 1987, p. 1067: “The offences which have traditionally given rise to election petitions—bribery, treating, conveying voters to the poll and the like—have been on the statute books for quite some time, and those in the election process have generally become aware of the tolerable levels for campaign activities and the limits of the law in this regard.”
[185] 
In 1949: Annapolis–Kings, Nova Scotia (Journals, March 6, 1950, pp. 68-84); in 1957: Yukon (Journals, October 23, 1957, pp. 37-44); in 1962: St. John’s West, Newfoundland (Journals, November 8, 1962, pp. 231-46); in 1968: Comox–Alberni, British Columbia (Journals, February 14, 1969, pp. 701-6); in 1988: York North, Ontario (Journals, June 7, 1990, pp. 1850-1). In the latter case, the Progressive Conservative candidate, Michael O’Brien, had initially been declared the winner in the riding of York North in the 1988 federal election. Three days later, as a result of a recount, the Liberal candidate, Maurizio Bevilacqua, was declared the winner. Mr. O’Brien sought a judicial recount, was declared the winner by 99 votes, was sworn in, and participated in the Canada-U.S. free-trade agreement debate in the short-lived First Session of the Thirty-Fourth Parliament. Mr. Bevilacqua appealed the recount and was subsequently declared the sitting Member by 77 votes (see Journals, April 3, 1989, pp. 2-3). Mr. O’Brien then filed an election petition. Two Ontario supreme court judges found that the number of irregularly cast ballots in the 1988 election had exceeded Mr. Bevilacqua’s 77-vote plurality over Mr. O’Brien. The election was subsequently voided. In a by-election held December 10, 1990, Mr. Bevilacqua was declared the winner.
[186] 
Dominion Controverted Elections Act, R.S.C. 1985, c. C-39, ss. 5(1), 11. See also s. 2(1) for a list of the designated courts. An election petition once filed can be withdrawn only with the leave of the court or the trial judges (see s. 78).
[187] 
Any type of wrongdoing or lack of legal capacity which can be said to have resulted in an election that is not valid (Boyer, Election Law in Canada, p. 1062).
[188]
When the returning officer fails to return the writ of election. This would be unlikely to happen today because the returning officer is specifically required by the Canada Elections Act to return the writ of election.
[189]
Where the votes given to two candidates in a constituency are equal and the returning officer returns the writ with both names endorsed on the back. This happened in the early years of Confederation when the returning officer did not have a casting vote to break a tie. Today, returning officers have the right to cast a deciding ballot between two candidates.
[190] 
Patrick Boyer notes in Election Law in Canada (p. 1065) that the statutes are silent as to what constitutes a special return. He writes: “A special return would presumably involve a writ returned under anything but the normal circumstances of the returning officer certifying the name of the member elected on the writ after the official addition of votes and dispatching it to the Chief Electoral Officer. There are basically three cases where a return might be made other than in the normal course: (1) on the death of a nominated candidate; (2) where there has been a delay in the official addition due to the loss of ballot boxes or inability to obtain poll statements; or (3) following an official recount where the result in the original writ as returned has been changed.”
[191] 
Dominion Controverted Elections Act, R.S.C. 1985, c. C-39, s. 9(2).
[192] 
Dominion Controverted Elections Act, R.S.C. 1985, c. C-39, s. 12. The deposit is security for the payment of all costs, charges, and expenses that the petitioner may have to pay.
[193] 
Parliament of Canada Act, R.S.C. 1985, c. P-1, s. 27(2). In 1981, Speaker Sauvé informed the House that she had received a certificate of judgement from the trial judges appointed for the trial of a petition in the matter of the election in the Electoral District of Spadina. The judges found that the petition had abated by reason of the seat being vacated and by the Speaker directing the Chief Electoral Officer to issue a writ for a by-election. In this instance, the Member (Peter Stollery) had resigned his seat upon being appointed to the Senate. See Journals, October 14, 1981, pp. 2875-6.
[194] 
Dominion Controverted Elections Act, R.S.C. 1985, c. C-39, s. 82.
[195] 
Dominion Controverted Elections Act, R.S.C. 1985, c. C-39, s. 37(1) and (2). Notice of the time and place at which an election petition will be tried must be given not less than 14 days before the trial date (s. 37(3)).
[196] 
Dominion Controverted Elections Act, R.S.C. 1985, c. C-39, s. 58(1).
[197] 
See Dominion Controverted Elections Act, R.S.C. 1985, c. C-39, ss. 64-9.
[198] 
Dominion Controverted Elections Act, R.S.C. 1985, c. C-39, ss. 60-1.
[199] 
Dominion Controverted Elections Act, R.S.C. 1985, c. C-39, s. 72.
[200] 
Dominion Controverted Elections Act, R.S.C. 1985, c. C-39, s. 71.

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