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returned, and the House of Commons always jealously guarded its
jurisdiction in this respect from interference from outside. By
the Controverted Elections Act power was delegated to Courts
thereby constituted to deal with disputed elections in the manner
therein specified. General jurisdiction over the return of members
was not by these Acts conferred upon the Courts. No case has
been cited to me, and I have found none, in which the Court
has assumed directly to interfere with the return of a member
of the legislature otherwise than under the Controverted
Elections Act. In my opinion, the jurisdiction to do so is
confined to the Courts established by those Acts. . .
Also see: Manitoba Law Reform Commission, Controverted Elections, (1980),
particularly at p. 6 and Moore v Kennard (1882-83), 10 Q.B.D. 290.
In Storey v Zazelenchuk (1983), 1982 2431 (SK QB), 21 Sask. R. 158 at
161-2, Estey J. summarized the approach that must be followed by the courts
in election issues in this way:
The position of the court in matters pertaining to an election was
referred to by Culliton, C.J.S., at p. 399, when he quotes from
Turgeon, J.A., (later C.J.S.), in Lamb v McLeod, 1931 196
(SK CA), [1932] 1 W.W.R. 206, at p. 208 [para 6]:
In acting in cases of election petitions, the
court is not exercising its ordinary civil or
criminal jurisdiction. The assembly is the
guardian of its own prerogatives and privileges,
and the courts have nothing to do with questions
affecting its membership except in so far as they
have been specially designated by law to act in
such matters: Re Prince Albert Provincial
Election; Strachan v Lamont (1906), 3 W.L.R. 571,
affirmed 4 W.L.R. 411 (N.W.T. A.C.). Therefore,
the courts will always approach questions
concerning their jurisdiction over election
contests with great caution, as being unwilling to
interfere without undoubted authority.
The position of courts in this province in election matters is
that the approach must be one of care and caution and the
exercising only of that authority which is clearly set out in the
statute. . .[paras 21-30] [emphasis added]
[17] See also Friesen v Hammell, 1997 2903 (BCSC) (Williams CJSC):
I would adopt the language of Mr. Maingot [in Parliamentary Privilege in
Canada (Toronto: Butterworths, 1982 at 161-162], above, that the Courts should
not deal with questions affecting membership "except insofar as they have
been specially delegated by law to act in such matters".