At the time this article was written Norman
Ward was a professor in the Department of Economics and Political Science at
the University of Saskatchewan in Saskatoon.
When one considers how many years
parliamentary institutions have existed both before and after Confederation, in
the ten Canadian provinces, in the two territories, and in the federal
Parliament, it is not surprising, that a number of very unusual incidents have
taken place. In this article the author brings to light an oddity that happened
not once, but twice, in Saskatchewan!
Legislatures commonly accept the winner of
an election in any constituency as the person to seat on the floor of the
chamber, but on two occasions the Saskatchewan Legislative Assembly has, for
good reasons, decided to seat the runner-up. The assembly did not, either time,
merely unseat the winner and vacate the seat to be filled through the electoral
process. Both times, the original winning candidate whose company was lost to
the assembly was a government supporter whose fellow members on the majority
side acquiesced in his departure.
The first occasion was a feature of
Saskatchewan's first election after it was created as a province in 1905. The
general election of December 13, 1905, produced these results in Prince Albert,
a sprawling lightly populated constituency which excluded Prince Albert City:
Peter David Tyerman (Liberal) 411; Samuel James Donaldson (Provincial Rights)
316. The Saskatchewan Executive and Legislative Directory, 19051970,
published by the Saskatchewan Archives Board, adds to its record of that
polling a laconic footnote: "On April 2, 1907, by order of the Legislative
Assembly, 151 votes recorded for Peter David Tyerman were set aside, and Samuel
James Donaldson was declared duly elected."
Behind the footnote lies an arresting fact:
the reason 151 of Tyerman's votes were set aside was that they were recorded in
three remote polling divisions where in fact no poll had been held. How the
votes were recorded and reported was never made entirely clear, but nobody,
including Tyerman, appeared to dispute that they were fraudulent. He attempted
to resign the seat on January 22, 1906, but failed because his return had not
yet been gazetted. At the same time Donaldson petitioned to be awarded the
vacancy. The assembly agreed to the petition on April 2, 1907, in a lengthy
motion which, after reciting in detail the relevant facts and related
precedents, included as its substantive portion: "That the Clerk of the
Executive Council be summoned by Mr. Speaker to attend the Bar of the House and
amend his certificate relating to the return o the member elected to represent
the electoral Division of Prince Albert at the election held on the 13th
December, 1905, by inserting the name of Samuel James Donaldson in lieu of the
name of Peter David Tyerman."
One could at least argue that the
legislature in that motion seated a man who had no more right to the seat than
any other qualified citizen. When Tyerman's resignation became effective, the
seat was vacant. Had he not resigned, and action been possible under election
law, (technically it was not) the result would again have been a vacancy. But
when the legislature, in its might, decided with the support of both sides in
the house to seat Donaldson, there was nobody to say it could not do so.
The incident might well have remained an
incident, a curiosity in Saskatchewan's constitutional history; except that it
happened again, in circumstances which made the Tyerman-Donaldson case an
important precedent. In the provincial general election of June 26, 1929,
Estevan, a constituency which had gone Liberal in every election since its
creation in 1908 save one (1925, when an Independent won) was taken again by
the same party. The winner, for his own reasons, shortly resigned, and in the
ensuing by-election on December 23, 1930, the polling, after an official
recount, yielded these results: David McKnight (Conservative) 2,700; Norman
McLeod (Liberal) 2,686. Since the first count on election night had shown the
Liberal McLeod the winner by 5 votes, the Conservatives' first victory in the
seat was, at best, a precarious one.
It became more so when evidence began to
accumulate which suggested that the ballots counted by the judge in the recount
were not all the same ballots as those tallied by the returning officer. The
local gossip about flagrant tampering between count and recount with the
ballots in four boxes became too widespread and apparently too well-founded –
for the government to ignore, and it appointed a well-known lawyer to investigate
the charges. His findings were conclusive: the ballots had in fact been
tampered with before the recount.
The new Co-operative government, beset from
the start by pressing problems of deepening depression and drought, had little
desire for yet another distracting and expensive by-election and the premier,
Dr. J.T.M. Anderson, a Conservative, reportedly suggested that his party would
withdraw its petition fir the recount if the Liberals would withdraw their
appeal against it, with both sides agreeing to accept the returning officer's
original count. The former premier, now leader of the opposition, James
Gardiner, thought it was too late for that, since an official recount had been
held which in effect upset the count on election night.
After considerable manoeuvring both sides
decided to call the precedent of 1907 to their aid. and a motion whose
substantive terms were identical to that of the motion of 1907, with the names
and dates changed. was moved and seconded by the premier and leader of the
opposition on February 9, 1931. Again the runnerup was seated.
One footnote remained. The motion of 1931
followed that of 1907 as far as it went, but added new words: "without
prejudice to the rights of any person with respect to the said election under The
Controverted Elections Act of the said Province." The parties' initial
agreement on the wording of that proviso soon broke down in argument over what
the proviso meant, and in due course the Liberal McLeod, having been awarded
the seat by the legislature, finally lost it late in 1932 because it was, shown
to the courts' satisfaction that unqualified persons had voted in the
by-election anyway. McLeod's loss of the seat (there was no candidate left to
whom the legislature could have given it) led the Liberals to make one last
attempt in 1933 to present a bill that would have re-seated him, but this time
the majority supporting the government was giving Estevan a low priority. It
killed the Liberals' bill, and the government left the constituency
unrepresented until the next general election, in 1934. The government no doubt
felt it was the least it could do.