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ELECTION CASES.

REPORTS OF DECISIONS

UNDER THE

DOMINION AND ONTARIO CONTROVERTED ELECTION ACTS

RELATING TO THE ELECTION OF MEMBERS FROM THE

PROVINCE OF ONTARIO TO THE HOUSE OF COMMONS

OF CANADA AND TO THE LEGISLATIVE

ASSEMULY OF ONTARIO,

1884-1891.

WITH A TABLE OP THE NAMES OF CASES REPORTED,

A TABLE OK THE NAMES OF CASES CITED,

AND A DIOEST OF THE PRINCIl'AL MATTERS.

REPORTED UNDER THE AUTHORITY OF

THE LAW SOCIETY OF UPPER CANADA.

VOLUME I.

TORONTO:
ROWSELL ic HUTCHISON.

1891.

K E 4- ^54

Entered according to the Act of Parliftm«.nf nt n i • ,

Law SociETr of Upper CALoTttrn*"''^""' ''^ *''« '^'"'^
Agriculture. ' '" *''* ^®"« °' *»»« M"»«fc«r of

aoWSKU, ANP HDTCHISOX. ,.AW PB,.vrKR8. K,NO 8TK.KT.

A TABLE

or THE

CASES RKPOIITED IN THIS VOLUME.

Algoma (Dominion) 448

East Durham (Provincial) 489

East Elgin (Dominion) 475

East Middlesex (Provincial) 250

East Northumberland (Provincial) 434

East Simcoe (Provincial) , 291

Haldimand (Dominion) 480, 529, 572

Hamilton (Provincial) 499

Kennedy v. Braithwaite 195

Lennox (Provincial) 41, 422

Lincoln and Niagara (Dominion; 428

Muskoka and Parry Sound (Provincial) 197

North Ontario (Provincial) 1

Prescott (Provincial) 88

South Renfrew (Provincial) 70, 359

South Victoria (Provincial) 182

Welland (Provincial) 383

West Middlesex (Dominion) 486

West Northumberland (Dominion) 32

West Simcoe (Provincial) 128

TABLE

or THK

NAMES OF CASES CITED IN THIS VOLUME.

Names of Cases Cited. Whbbe Rbpoktku. Page of Vol.

A.MiuKton Cnse 39 U. C^. H. 131 . .454, 456, 457, 458, 460

Al.loua V. Cornwull I.. R., 3 Q. B. 573 431

Aldridge V. HurBt 1 C.I'.D. 410 . .132, 144,261.300. 430

Alexander v. Wrame 7 D. M. & O. 525 192

Anthony v. Seger 1 Hag. (on. R. 13 297

Athlono Case 2 O'M. & H. 186 308

Athlono Case B. & Ar. 115, 126 299

Attorney-General v. Jeflferies 13 Price 580 194

Attorneys ieneral v. Loukwood 9 M. & \V. 378, 401 668

Banner v. Johnston L. R. 6 H. L. 157 40S

Barnstable Case 2 O'M. & H. 105 163, 381

Beal V. Smith L. R. 4 C. P. 145 266

Bellechasse Case 6 S. C. R. 91 688

Belfiwt Case 1 O'M. & H. 285 270

Berthier Case 9 S. C. R. 102 351, 476, 478, 579

Bewdley Case 3 O'M. & H. 145 153, 176, 201

Binlsall Case 468

Blackburn Case 1 O'M. & H. 198 132, 163

Bodmin Case lO'M. &H. 115; 20 L. T. N. S. 991 . . 9,

18, 50, 61, 131, 132, 152, 408, 409, 414

Bolton Case 2 O'M. A H. 138 195, 476

Boston Case 3 O'M. & H. 161 ... 163

Bradford Case 1 O'M. & H. .TO 14, 24, 261

Bradley v. Baylie 8 Q. B. 1). 195, at p. 230 364

Brecon Case 2 O'M. & H. 43 36

Brookville Case H. E. C. 129 29, 178, 304

Caldow V. Pixell 2 C. P. D. 566 299

Carrickfergus Case 3 O'M. & H. 91 18, 5.33, 558

Carrickfergus Case 1 O'M. & H. 264 132

CHshel Case 1 O'M. & H. 286 168

Cheltenham Case 1 O'M. & H. 62 132

Chester City Case 44 L. T. 285 201

Colchester Case 1 Peck. 507 296

Cooper V. Slade 6 H. L. C. 746.. 469, 476, 633, 552, 656

Corbet Kynaston's Case 316

Cornwall Case (3) H. E. C. 803 153

Cornwall Case H. E. C. 547 .113, 132, 163, 201, 469

Cornwall Case Pat. El. Prec. 103 298

Cundy v. Lecooq 13 Q. B. D. 207 668

0A8BS CITED.

Namks op Cahr8 Citkd. WiiRRR Reported. Page of Vol.

DavidHon v. Cooper 11 M. & W. 778, 13 M. k W. M.I. . 430

UaviiUoii V. RoBB 24 (Jr. 22 151

boniililMiiti V. Williiinis 1 C. & M. 340 . . 4<»

Driiikw.iter v. DavkUin L. I{. C. I*. 62« 3<56

Uroghodal'aHo 20'M. & H.201 ; I8S0I. J. 647. 205,308

l)uiuiu8 (Jnau H. K. C. 205 1 15, 226

Duii«iinnon Cubo 3 O M. & H. 101 . . 89, 1 1.3, 152, 160, .WS

l)wi({htuii<l Maukliim, lie 15 (). K. 148 439

Dyko V. Klli<.tt. "The « Jimntlot " L. U. 4 l*. C. 184 194

K«8t Elgin CuBc 11. E. (J. 769.

East Elgin 1 E. C. 475

East Miaaiescx 1 E. (). 250,

Eaat Norlhunilwrland CnMu ,

E:)Ht Norliuinilterland (/ase H

!<]uHt Ncirtliuinlicriand Case

E. C. 577 .
H. E. ('. 387.
East i'cturlx.rough CaHC H. E. C. 245.

East Sinicoo C'ase I E. C. 291 . .

EaHt Toronto Case H. E. C. 70..

227,

184, 189,

.15.3, 159, 201,

...22, 116, 117,

2.J5.

.201, 274, 288,

522, 523,

39,

. . . . 19

. .579

23.'>, 446

191, 276

.132,208

387, :W8

226. 228,

2.-.4, 468

.50* », 5-'0,

524, 525

414, 467

Kalcke v. ScottiBli Iinperi.il Inn. ('o

34 Ch. D. 234.

430, 432

Galway Oaao 2 O'M. 4 H. 49 9, 29

Glengarry (Jase H. E. (!. 8 19, 132, l.W, 263, 281

Glengarry Case 12 (!. I-. J. 1 17 457

Grant v. Paghani 3 C. P. D. 80.. 73, 25C, 363, 370, 380, 381

Guildford Case 1 O'M. & H. 15 208

Hackney Case 18 Sol. J. 470 ; 2 O'M. & H. 77 296

307,318.393

Halton CaBo H. E. C. 283. .6, 27, 116, 121, 226, 227

258 266 287

Halton Case ' H. E. C. 730 468,* 469! 478

Hargreaves v. Simpson 4 Q. B. D. 405 257

Harwich Case 3 O'M. & H. 61 ; 44L. T. N. S. 187

..130, 148, 152, 163, 159, 163, 167, 168,

412, 6.37

Kenfree v. Bromly 6 East 309. .430, 431

Hereford Case 1 O'M. & H. at p. 195 6.33, 653

Hereford Case 21 L. T. N. S. 1 17 114

Hickson v. Abbott 25 L. C. J. at p. 313 4fi9

Hindostan, Bank of, v. Smith 36 L. J. C. P. 241 430

Holmes v. Higgins 1 B. & C. 74 468

Howard v. Bbdington 2 P. D. 203 320

Hudson V. McCrae 4 B. A S. 685 568

Huntington v. Attrill 18 A. R. 136 613.

CASES CITED.

VII

Nambs op Carra Cmn. Whrrr Rrpoktkd. I'age of Vol.

Jonkini v. Bracken 7 S. C. R. 247 299

Joiiei V. Carliug 13 g. R. I). 201! 232

Kinf< V. Adoy M. A Rob. 94 034

Kin^ V. laii^'liorn 4 A. & K. BJW Slfl

KiiiK'H liynn Case 1 O'M. & H. '.'07 170

Keniio.ly v. Hraithwalto 1 K. C. 195 187, 195

Kingston Case H. K. (J. 624 .19, 132. 1.V2, 261, 534, 579

Kingston Cubo (not reported) 4U3

KingBton Ciuio 39 U. C. IL i:\9 454, 456, 457

Unnccston C!a«e 2 O'M. & H. 12!» 7, 28, 5r.3, 5.^3

Laiinceatoii Case I Roll. Abr. 513 29H

Lennox Cuse I K. C. 41 25(J, 4.38, 443

Lichfield Ctiso 1 O'M. & H. 22 131, L'iS. 2<)8

Litlifield Case 3 O'M. & H. l.'W MM, 537

Limerick Ciiae P. A K. .365 2U«!, 299

Limerick Case 1 O'M. & H. 20(t .^.79

Linccdn Ciwe 2 A. R. 324 299

Lincoln Case H. K. C. 391 130, 153, KA, LVi,

171, 180

Lincoln Case H. E. C. 489 305, .306, .3.V2, 402

Lincoln Case H. K. C. 500 66, 1.52, 303, 495

Liverpool Borough Bank v. Turner 2 UeG. F. A.J. 502 3-0

London Case 24 C. F. 474 242, 254

London Vmc H. E. C. 214 152

Longford Case 2 O'M. A H. 6 298, 319

Londonderry Case 1 O'M. A H. 278 89, 1 13, .'iSO, 584

Lord V. Ue L. R. 3 Q. B. 404 463

Louth Case 3 O'M. AH. 161 1.32, 5.33, .'i.Vi

Lowe V. Fox 12 App. Cas. 206 430, 4.32

Lucas V. Reach 1 8c. N. R. at p. 357 4G8

Macartney v. Corry 7 Ir. C. L. R. 190 5.37

Master v. Miller 4 '!'. R. 320 ; 1 Sni. L. C. 8J7 (8th

ed.) ; 2 H. BIv. 140 4;i0

Maude v. Lowley L. R. 9 C. P. 165 129, 1.32, 140

Mierelles v. Banning 2 R. A Ad. SK)9 5.58

Miles and Corporation of Richmond, Re . . 28 U. C. R. .333 322

Miller v. Salomons 7 Kx. at p. 527 192

Monck Case H. E. C. 154 ; .32 U. C. R. 147. .36, 129,

144, 294
Muskoka and Parry Sound Case I E. C. 197. . . .273, 276, 286, .3.56, 4.38,.

579, 589

Norfolk County of (Northern Division). . 21 L. T. N. S. 264 512

Norfolk Case Pat. El. Prec. 79 299

North Durham Came 3 O'M. AH. 1 6.37

VIII

CASES CITED.

Nam KM or (/Ahrh Citbd.
North CSrey (y'aae

North Miilillenex Caie
North Norfolk I'ase . .

North Ontario Cose
North Ontario (.'aae
North Ontario ( 'ose

North Ontario ( 'ase . . .
North Renfrew Caao . . .

North iSimcDO Caso

North Victoria Case

North Victoria ('ase

North Wentwortli Cose

North York Case

Norwich Cast

Norwich Caso

Noseworthy v. Uuokland-in-the-Moor.

WiiKRB Rrportrd. Page of Vol.

H. E. C. 362. .116. 133. 168, 201. 226.
2M, 258, 266, 284, 287
H. R. C. .176 . . 19, 98, 115, 132. 226, 269
1 O'M. & U. 236 : 21 L. T. N. S.

249. 10. 18,6.13,603

1 E. C. 1 430, 446

H, K. C. 197 469

H. E. C. 304. 116. 132. 15.3, 201,261.

383, 384, 388, 3HP, .390

H. E. C. 785. .68, 69, 163, 201. 2f>5,469

H. K. C. 710 414

H. E. C. 60 469

H. E. C. 671. 37 U, C. R. 234. .61. 131.

5.34

U. £. C. 262 29. 37, 116, 226, 258,

201.287.468
H. B. C. 343. 68, 116. 117. 1.32,162.

179
H. E. C. 63 264, 256, 256, 468

1 O'M. &H. 8 132, 148, 163

2 O'M. AH. 42 322

L. R. 9 C. P. 233 321

Ontario Bank v. Newton

19 C. v. 258 161

Pattinson v. Luckley L. R. 10 Ex. 330 430

Pearso v. Moirico 2 A. & E. 96 299

People V. Pease 27 N. Y. 46-81 634

Phillpotts V. St. Ueorge's Hospital .... 6 H. L. C. 338 188, 193, 194, 229

Pigot's Case 11 Rep. 266 430

Prescott Case 1 E. C. 88. . 148, 149, 164, 199, 230,237,

414, 447. 469. 689, 694

Prescott Case H. B. C. 1 161

Queen ex rel. Preston v. IVeaton 2 Chamh. R. 178. .

Queen v, Chipmiin 1 Den. C. C. 432..

Queen v. Justices of I^ancashire 11 A. & E. 143

323
561
363

Reglna v. Bishop 5 Q. B. D. 259 567

Regina v. Holroyd 2 M. & Rob. 339 658

Regina v. Prince 13 Cox 138 557

Regina v. Woodrow 15 M. & W. 404 658

Regina v. Hague 4 B. & 8. 716 255, 267

Regina v. Kinglake II Cox C, C. 499 534

Regina ex rel. AUemaing v. Zoeger 1 P. R. 219 314

Regina ex rel. Preston v. Preston 2 Chamb. R. 178 314

Regina v. Hague 4 B. & 8. 715 267

Regina v. Hodgkiss L. R. 1 C. C. R. 212 661

Regina v. Mayor of Tewkesbury L. R. 3 Q. B. 629 366

Regina v. Rector of Lambeth .' 8 A. A E. 366 299

CASKS CITKD.

Nam KM OF Camks Citkd.

WiiKKK Hkportrd. PageofV^ol.

Kex V. Denl.yiihire 4 KaHt UtW 'Mi

Kt>x V. HiuiHoii -MJ. & AM. r>H» 4'2»J

Rex V. Mureh 4 l>. A. Hv. *.'«l ft5H

>m\

•MH

Kux V. Mav n Iturr,

R.X V. I'..o'lo < 'uB. tcm I). Himlwiiko 27 ... . 'i»8, 321

Khtxli '8 V. SiiiethurH^ 4 M. & \V. «;< HX\

Hyo Can.) I I'. It. ft D. 1 12 'MS

Salfonl Cast- H )M. All. 1.S2. 20 I.. T. N. M.

120 r,(K 18.-), lot

SaliHlmry Case 4 O'M. A ». 21 ; 44 !„ 'I'. N. S.

\m US, 1.-.2

Suiifonl Ciwc. . .
.s«'.'(niil Itriiiiriiril (',

Kt Ik irk L'ii8e

SiiDp'^iiii V. ^'j^oiiil

>lijio Ciise

Sniitli V. (^luuhvick App ('nx. at p. UU

Soiii. rvillc V. I allammu 2 S. (;. I!. 2I(;

3 LikI. '2rt

10 L. T. N. S. 72.T.
4S. C. n. 4!)r...
L. I!. 4 (}. W. (ViS.
I (V.M. .t II. nm.

Sl)Utll.llllpt<i|l ('ii80

10 S. C. H. (mJ...
I O'M. A II. 223.

South DxHvx Ciwo M. K. (.'. 23.')

II. K. ('. -.7..

H. K. ('. (UM).

H. K. ('. 420

South (ii<y HO

Souili Norfolk OiiRC.
South Ontario Case

.S.utli Oxfonl Ciise M

South \'i(.'toriii('.».s<!

South Wcntwoi'th Case

St.illoi (1 ( 'nm;

Stahiyliii'lj^tM 'ant'

State V. I'ei'kiiiH

Stoiiiioiit Casu

201

20S

. . . -M

. . r..i;»

..7. 2S

173, rm

.... 232

.... ri7'.t
.•.;i3

... 10

OS, l.-)2

2.-)8, 2til, 2(i<», 2S(J

.22. I. •).•{, 201. 2r>i, 2rili

.-).•!, 04, or., 08, I. '.2, l.-)4,

178. 2r)»

K. ( '. 240 2.'»(i

I i;. C. kS2 2J0

II. K. c. at pp. r>:\:]:\\ .-)3»

1 OM. * H. 2JS 1;-)!

1 OM. A If. 70 ; 20 L.T.N.S. 7.'>.I8. 114

42 V.nn.iiit 3iM» TmS

H. K. ('.21 208, r.34

Sto.inoiit CiSL' I'ut. 111. I'rcc. 107 2!l!»

Stowo V. .lolliirc I.. I{. !t(\ I'. 4l(i r..37, r.4!l

Stroud Case 2()M. All. hs.! Ilir.

Stroud Case 3 OM. A H. 1 1 r)Xi, rtsr.

Stcphuuson V. IliKginson 3 H. L. C. tiSO M)2

Sullidl V. iknk of IjiKJan.l (^ H. I). jVm 430. 431

Tamworth Case I O'M. A H. 74 132, 100

Taunton Case 2 O'M. A II. 00. . 1 14,201, 3r>l . 38S,.'')80,

.')84

Taunton (.'ase 1 O'M. AH. 180 ... . i:!2, l."3, 170, 201

Thonia.s v. Newton M. A .M. 4S« ->.'M

Wakefield Case 2 O'M. A II. 100.. IGl. 201. .SNO. 400, 588

Wallingford Case 1 O'M. A H. r>6 131, 132, 533, nr^l\

Warhurton v. Loveland 1 Huds. A lir. 048 15)2

Warrington Case 1 O'M A 11. 44 330

Waterford Case 2 O'M. A H. 2 f»7J»

Wellund Case 1 K. C. :i83 339, 342, 441, 522

B — VOL. I. E.C.

X CASES CITED.

Names of Gases Citkd. Where Reported. Page of Vol.

Welland Caae H. E. 0. 187 . . 109, 114, 132, 152, 201.

226,254, 258

Westhury Case 4 O'M. AH 153

Westbury Case 3 O'M. & H. 78 152, 168

West Hastings Case (2) H. E. C. 539 1.52, 226, 287. .306

Westminster Case 1 O'M. & H. 89 . . ..152, 253, 580, 583

Westminster Case 1 O'M. & H. 29 153

West Nortliumberland Case 347

West Peterborough Case H. K. C. 275 9, 13

West Simcoe Case 1 E. C. 128. .47, 202, 257, .3.39, 401, 402

406, 407, 408, 414, 410, 434, 442,
443 446 .518 579 o89

West Toronto Case H. E. C. 98. . . .2.'">,'2.'-i3,'256,'258,'261,

2fi6, 286, 467, 4(58

West Wellington Case H. E. C. 231 116, 117, 226, 266

Wheeler v. Oihbs 3 S. C. R. .374 463

Wheeler v. Gibbs 4 S. C. 11. 4S() 68

Wigan Caae 1 O'M. & H. 188 .39, U3, 467

Wigan Case 4 O'M. & H. 14 252

Wigtown Case 2 O'M. & H. 21.'^ .308, 5.37

Windsor Case 31 L. T. N. S. KW 579

Windsor Case 2 O'M. & H. 88 152, 390, .584

Woodward v. Sarsons L. R. 10 C. P. 7.33 126

Wynne v. Middleton I'^VVilson 125 513

Young V. Smith 4 S. C. R. 494 208, 468, r^rA, 5SH

age of Vol.

J, J 52, 201,
!6, 254, 258
153

. 152, 168
5, 287, 306
J, 580, 583

153

347

.... 9, 13
9, 401, 402
, 434, 442,
I, 579, o89

258, 261,
5, 467, 4(58
, 226, 266

403

I, 153, 467
252

.308, 537

579

;, 390, 584

126

513

, 554, 558

ERRATA.

West Northiunberlaiid Case— p. 32, line 13, for " B." substitute " H."
West Simcoe Case — p. 129, line 21, for " necessary " read " unnecessary."
Muskoka Case — p. 1!)!), last line of head note, for " voluntary " read
" involuntary."

East Simcoe Case— p. 293, line 12, before "working " insert " not."
Welland Case— p. 384, line 8 from end of he.ad-note, bcf;;re " the "

insert " and."
Lincoln Case— p. 428, line 12 and line 17 of head-note, for " respondent "

read "petitioner."

East Elgin Case- p. 475, line 9 of head-note, for " R. S. O." -ead " R. 8. C. "

Hamilton Case — p. 500, line 9 from top of page, strike out "the " before
"money," and insert " was " after " money."

Hamilton Case —p. 500, line 14 from end of head-note, after "that"
insert "as to."

REPORTS

ELECTION CASES

NORTH ONTARIO.

PROVIXCIAL ELECTIOX,

Before Mr. Justice Burton and Mr. Justice Osler.

UxBRiDUE, January 3, 4, 5, 29, ami 30, 1SS4.

Thomas Treleaven, Petitioner, v. Isaac James Gould^.

Resjnyndent.

Pleadlmj — Bribery — Treatinrj — Agency — ProinUei: — Vahiahk present —
Association meeting— R. S. 0, ch. 10, sec. 159.

An allegation in the petition "that the respondent was liy liinisdf, &c.,
guilty of corrupt practices, aa defined by the Controverted Elections
Act of Ontario," sufficiently charges the ..)mnii8siou of •.•mrupt practices
under sees. 152 and 15.3 of "The Election Act," R. S. 0. ch. 10.

The respondent, during his canvass and on the same evening that a public
meeting was held for the purpose of promoting the election, treated a
number of persons, many of whom were voters, collected in a bar-
room. It « as shewn that it was not the respondent's general habit to
treat, that all present were invited to drink, and that he had not
treated more than twice or perhaps three times during the canvass.

Hehl, not a corrupt practice, and that in view of the ordinary custom of
treating in the country, it might be regarded more ivs an expression of
good feeling to those who were supporting him.

P., an a;;ent of the respondent, on the morning of the electi(m called on
the wife of one K. and asked her to use her influence with her husband
to induce him to vote for the respondent, saying, " I will make it all
right." She told her husband, wl o laughed and replied that he inten-
ded to vote for the respondent any way, or that he would do as he
liked, and he did vote. After tlie election the wife called at P.'s store
and having reminded him of his promise, she went into the grocery
department and got gooils to the ^•alueof §4.49. Subsequently an ac-
count was rendered including this $4.49, and her husband objected ta
pay it. She then told a clerk of P.'s that that part of the account was
"settled off election time," and a new account was subsequently ren-
dered by the attorney for the estate, aa P. had failed in the meantime,
with that item omitted.

1 — VOL. II E.C.

PROVINCIAL ELECTION.

Per BCRTON, J. A. — The words of the promise in themselves alone did
not amount to "an offer or promise of money or other valuable consider-
ation," but being followed «/<«>>• the election by the prusent of goods,
the gift was made in pursuaiice of the promise, and therefore corruptly ;
but that as P. 's agency had terminated with the election, it was not
such a corrupt practice as to affect the candidate unless done with his
privity and assent

Per Osi.BR, J. A. — P. intended to convey and did convey to the wife the
idea that if she procured or would induce her husband to vote as he
wished, she would receive soiiiethin;/ of value , the giving of the
groceries after the election was an act of bribery, ami if it stood alone
it would have been necessary to carry the evidence of agency furtlier,
Ijut following the promise it showed what both parties understood, and
to that extent the respondent was affected by what was done after
the election.

Hi Id, also, under all the circumstances, that this being the single corrupt
act proved the case was a proper one for the application of sec. 159, though
the majority was only twenty, and the election should not be avoided.

The appointment of a voter as an agent so as to allow him to vote in a
division other than his own, and near where he was employed, is not a
corrupt practice.

A payment of $10 was made to P. II. to go some miles for voters, although
another messenger was sent and paid by another agent for the same
purpose, who failed to get through on account of the roads, and returned
the money.

Held, that there was no reason to suppose th it thejnoney was paid colour-
ably.

S., an agent of the respondent, with his own conveyance lirought a voter
from N. to his own house, where he rom vino I as a guest until after
the polling day.

Held, not within either sees. 153 or 154 of the Act.

An association formed "for the greater diffusion of liberal principles and
the social and intellectual improvement of its members," being pre-
vented by an accident from meeting at the Town Hall, held a meeting
in a tavern, and was treated by the respondent.

Helil, not a meeting of electors within sec. 151 of the Act.

On the morning of the polling day, S. met McN. in a hotel, and asked
him to vote for the respondent, to which he agreed, he then took him
to his (S.'s) house, and afterwards to a tavern where he treated him,
and then to the poll where he voted. S. was a man who always took
an active part in every election on the Reform side, and duiing this
election he had, on one occasion, attended a meeting of the local politi-
cal organization, or committee for whose acts in the management of the
election the respondent would be answerable, when some election work
was done ; but it was not shewn that he had canvassed except in this
particular case, or that he was a member of the committee, and he
swore that he was not asked to do any work. On the polling day he
he was actively engaged in driving voters to the polls in his own con
veyance, which he said he did as a mere volunteer.

Held, that the treating was a corrupt act, but that S.'s agency was not
proved.

The suggestion of names and recommendation of Deputy Returning
Officers by political associations commented on an.l disapproved of.

M
I

NORTH ONTARIO. 3

The petition contained the usual charges of corrupt
practices ; and there was a cross petition filed, in which
Jacob Shaver Kimmerly was the petitioner, but which
was abandoned, no evidence being taken in support of it>
and was dismissed, with costs.

McCarthy, Q. C, (with him N. F. Paterson, Q. C, J. A.
McGillivray, and F. Madill,) for the petitioner.

Madennan, Q. C, and Wm. Johnston for the respondent.

February 18, 1884. BuRTON, J. A. — The particulars
annexed to the petition contain 108 charges, in addition to
some that were allowed to be added at the trial.

Of these 108, 31 were personal charges against the
respondent, 77 against agents, 88 were abandoned or dis-
posed of at the hearing ; leaving yet to be considered 20,
of which 11 are personal charges, and 9 of corrupt practices
by agents.

The first seven charges are charges of corrupt treating by
the respondent under sec. 152, R. S. O. ch. 10. They are
denied by the respondent, but it is contended that the
weight of evidence is in favour of the charges, and that they
should be considered in connection with charge 20, a pay-
ment to one John Adams of a sum of SlO, with the intent
that it or some part of it should be expended in treating,
and the fact of treating by Adams, which is not disputed.
Assuming that in the face of the denial it is proper to enter-
tain the charges at all, it was very strongly urged by the
counsel for the petitioner that as it was shewn that it was
not the practice of the respondent to treat to any great extent
on other than election times, it must be assumed that it was
done with the view to affect the election, and to induce
voters to give him their support or to refrain from voting.

I must confess that I do not attach much weight to that
contention, even if it had been shewn that the respondent
abstained from treating generally to a much greater
extent than has been shewn here, and that treating during
the election had been brought home to him much more

PROVINCIAL ELECTION.

this

clearly and extensively than has been done during
trial.

I can understand that, as in the cases referred to, the
treating might be of that profuse and general nature as to
render it necessary to show that it was the ordinar}' prac-
tice of the party at all times, and thereby to negative the
presumption which such profuse treating miglit raise,
that it was done corruptly with a view to influencing
the election ; but that is very dift'erent from a case in
which it was shewn that the candidate was not an hal>itual
treater.

It might bo that the practice was very distasteful to
him, and that his visits to a bar room on other occasions
would be confined to those when he was settling his hotel
bill or giving directions as to the care of his horses, or
other pure matters of business. It would bo Strang
indeed if, under such circumstances, he were in cold blocj
to invite up to the bar every man, stranger though he
might be, who happened then to be in the bar room ; and
yet, when going into a bar room pending an election,
receiving the welcome of his friends, and amid the general
excitement incident to such an occasion, he might hesitate,
in view of the universal custom of the countiy, to render
him.self singular, and in the opinion of many churlish, in
standinff aloof and refusing to treat, and mifjht therefoi'e
conform to this general custom without the slightest cor-
rupt intention.

Urgent appeals have been made to us during these elec-
tion trials, as if we were sitting here as censores morum,
under an obligation to et) force a temperance code which
has no existence except in the imagination of the parties.
The Leirishiture has not sai<l there shall be no drinkinij; or
treating during elections. What they have .said is that no
candidate shall corruptly give any drink to any person in
order to be elected, or for the purpose of corruptly influ-
encing any person to give his vote or refrain from voting
at such election. This raises a question of fact, not
whether there has been the giving of drink, but whether

NORTH ONTARIO.

ring this

fluenciiig

, case in

ImVtitiial

stofiil to
occasions
his liotol
loivses, or
) Strang
)1(1 hlooj
lough he
)0in ; and
election,
e general
hesitate,
o rentier
irlish, in
herefore
;est cor-
se elec-
morum,
e which
parties,
liking or
that no
person in
ly influ-
; voting
act, not
whether

v*-V>

it was done corruptly with either of the intents mentioned
in the statute.

It is impossible, in my opinion, to hold upon this evi-
dence that the treating, if proved, would have amounted
to a corrupt treating within the meaning of tho statute.
I am convinced that the treats in question, if the witnesses
are not mistaken in saying that they were given by the
respondent, wei'e, according to their evidence, given in the
common course of things, as following a connnon custom;
and I canntjt bring myself to hold that they were given
corruptly.

I do not see any such discrepancy in the evidence of the
respondent and Adams as to lead to the inference that the
money was given for any other purpose than is deposed to
b}' Adams. I think, therefore, that the wdiole of these
charges fail.

Cliarue x^o. 108. — In this case we are bound to credit
the version of the transaction given by Mrs. Kyle.
According to her statement John H. Patterson an agent of
the candidate, called upon her at her own house in reference
to her husband's vote, and asked her to use her influence
with him, adding " he would make it all right." This
was on the morning of the polling day. Some few days
after the election she went to Patterson's store, and put
him in mind of what he had said, although she does not
remember his answer, but after seeing him she went into
the grocery department and got goods to the value of
Si.49, which she says she thought was enough. She says
she men.tioned what Patterson had said to her husband, who
laughed and said he intended to vote for Gould anyway.

That upon the account coming in some time afterwards,
including this item of $4.49, her husband objected to pay it,
and she sa^'s that she told a clerk of Patterson's that that
part of the account was, as she expressed it, "Settled off
election time," and a new account was subsequently
rendered by the attorney for the estate, Patterson having
in the meantime failed, with this item omitted.

PROVINCIAL ELECTION.

Kyle appeal's to have been in very impecunious circum-
stances, having been shortly before burned out, and
Patterson on that occasion made him a present of some goods.

Patterson when called denied that he had ever promised
Mrs. Kyle anything to induce the husband to vote, but all
he would say about the remark attributed to him by Mrs.
Kyle was that he did not remember saying so. He does
not deny her calling at the store subsequently, but says he
does not remember it, and says that he had nothing to do
with the office or the books ; but he admitted that although
he had heard the particulars of this charge he had never
been down to make enquiries as to the way in which the
new account came to be rendered, leaving out this item:
and he denied all knowledge of the alteration in the
account, and denied having given any directions to any
one in the establishment to give her goods after the election.

Under these circuu^stances we are bound, I think, to
accept Mrs. Kyle's version, and we are called upon to say
whether th.i words attributed to Patterson are sufficient to
bring this case within subsec. a of sec. 149, R. S. O. ch. 10,
as "an ofFei', or pi-omise. of money or valuable consideration."

I did not understand Mr. McCarthy to contend that
they would, apart from the light thrown upon them by the
alleged act of Patterson after his agency had ceased ; but
he urged that the two were so connected as in effect to
continue the agency till after the election. My own view is,
that the words used are by themselves altogether too
indefinite to warrant our holding them to amount to such
a promise, and that as regards the candidate they cannot
have the effect contended for.

A similar question was discussed in the Halton Case,
Hodgins's E. C. 283, where there was a distinct promise that
if the woman would use her influence with her husband
the party seeking such influence would make her a " nice
present." The doubt there was, although there was an offer
of a nice present, whether there was anything named from
which the Court could see that it was a promise of any
thing of any appreciable value; but it was a promise of a

NORTH ONTARIO.

present of some kind, and the mldition of the word "nice""
served to indicate thnt it should be a present worthy of her
acceptnnco. The Court thought it did not lie in the briber'*
mouth to say that he intended a present of no value, and
;dthou<Th not without some hesitation catne to the con'^lusion
that, although not allowed to construe the statute arconiing
to considerations of supposed policy, they might well hold
the words then used to apply to such a promise as came
within the terms of the statute.

All the cases I have been able to find are cases in which,
although no distinct sum in money has been promised or
ottered, there has been something ottered which was esti-
m.-ible in money as a valuable consideration.

For instance, in Simpson v. Yeend, L. R. 4 Q. B. 628,
the promise was : " I said, he would be remunerated for
what loss of time might occur." So a promise shortly
before the election to allow voters to shoot rabbits : Laun-
cesfnn. Case, 2 O'M. & H. 129.

But whilst agreeing with the remarks made by some of
the Judges in the reported cases as to the importance of
not raising subtle distinctions or refinements as to the pre-
cise words in which the promise or offer is conveyed, I
must be satisfied that it comes plainly within the meaning
of the words used, as well as within the spirit and scope
of the enactment. Can I say that the words here used,
(and I am at present dealing with the words alone,) amount
to an otter or promise of money, or other valuable con-
sideration ? To my mind they do not. There may have
been a hundred ways of which we know nothing in which
Patterson may have had it in his power to make it all right
with this woman, and yet not come within the meaning of
the Act of Parliamen'j against this particular offence.

When we find the same person, shortly after the elec-
tion, making a present of goods to her after being reminded
of the promise, we may fairly infer that the gift was made
in pursuance of promise, and therefore eomiptly. Such a
transaction comes within the provisions of the Act, but we
give full effect to the Act when we hold the briber liable

PROVINCFAL ELECTION.

to the penalty provided and the vote of the party bribed
void upon a scrutiny; but we should scarcely be warranted
in assuming that it was the policy of the Act to make one
person liable for the acts of another who was not his
agent vhen doing the act complained of, and to declare it
a corrupt practice so as to affect the candidate.

The agency of Patterson terminated with the election,
and any act done subsequently, so as to affect the candidate,
must, in my opinion, be shown to have been done with his
privity or assent, either express or implied. Take this
case : a promise is made by a candidate which might be
susceptible of different meanings, one perfectly innocent,
the other which would show a corrupt promise within the
meaning of the statute. It cDuld scarcely be seriously
contended that admissions made by the agent, subsequent to
the election, would be admissible in evidence against tho
candidate of the meaning of the promise.

We were referred by Mr. McCarthy to Mr. Cunningham's
work on Elections, 2nd ed., at p. 308, but I am not prepared to
accept the i)roposition there laid down, and the illustration
given by him as sound law. He goes the length of saying
that it would be preposterous to say that the admissions of
an ex-agent after the election, as to something done during
the election, would not be binding on the principal, and
then he takes this illustration — .an action against a person
for an injury caused by the negligence of his servant. We
will suppose, he says, " that the servant before the trial of
the action leaves the employer's service, and after that
makes an admission that he was at fault in the matter
which has given rise to the action: "is it to be contended,"
he proceeds, "that this admission would be inadmissible
against his employer ? "

I do not know that the circumstance of his having left
his employer's service would be a factor in the enquiry,
but with great deference to a writer whose work is so fre-
quently referred to as authority, I think I should have
very little hesitation in holding, that an admission by the
servant subsequent to the accident would not be receivable
in evidence against his employer.

NORTH ONTARIO.

Mr. Justice Keogh's remarks in the Galwai/ Case, 2 O'M.
■&; H. 49 are relied on by Mr. Cunningliam, but that loinied
Judge's proposition that if agency were established the
agent's declaration afterwards referring to anything which
took place at the elections is too broadly stated.

Mr. Taylor draws the distinction very clearly between
admissions by the piincipal and those by an agent.

The first, whenever made, may be giv»,a in evidence
against him, but the admission of the ag.,nt binds only
when it is made during the continuance of the agon(?y in
regard to a transaction then depending "ct dum fervet
opus." When the agent's right to interfere in the par-
ticular matter has ceased, the principal can no longer bo
atroctcHl by his declarations any more tiian by his acts, and
tliey will bo rejected as mere hcai'say.

And in the case put of the servant's negligence the
words uttered at the time of the occurrence would be
admissible as determining or tending to determine the
nature of the act; but whether he still continued in the
service or had been discharged, his statements made at
any time subsequently to the occurrence aie manifestly
not receivable. Any fact material to shew the negligence
would, in order to bind his master, have to be proved by
his testimony and not by his mere assertion.

I am glad to find that this was the view taken by the
late learned C. J. Draper in the West Peterborough Case,
Hodgins's E. 0. 275, where he refused to receive evidence
of a conversation with an ex-agent after the election.
Even if he asserted some fact of importance bearing on
the issue his statement of that fact, he held, would not be
evidence to charge the respondent.

Willes, J., held in the same way, in the Bodmin Case,
1 O'M. & H. 118, "A man is bound, he says, by the admis-
sions of his attorney made in the course of the cause, but
not by a statement of the attorney when he goes to
examine a witness, who has been summoned by the other
side, for the purpose of knowing what that witness is
about to say. That is not an admission made in the cause'
2 — VOL. II E.G.

PROVINCIAL ELECTION.

Tt is a more statement of liis attorney. Evidence of tlint
kind is very much subject to bo misrepresented, nnd lins
never been admitted in cases, except through want of care
at the time."

I have no doubt that upon this evidence, and assuming
the facts to be as sworn to by Mi*s. Kyle, as I think we
are bound to do, tl)ere was bribery on the part of Patter.son,
but I do not tliink that it can have relation Itack so as to
affect the candidate. The remark attributed to him was
not an agreeinont, or promise of nion<'y, or vahiable (•f)n-
sifh'ration within sub-sec. a. of sec. 140, and I agree in tlie
contention tliat the suVisequent corrupt act of Patterson
cannot be relied on as giving life an i vitality to something
which had no value or eflect before.

Mr. Justice Willes, in the Southampton Case, 1 O'M. &;
H. 223, uses this language : " My impression is, that what
is done after the election can only be material as throwing
light ui)on some transaction before the election, and so
leading to the supposition, that there was before the
election some breach of section 5 of the Corrupt Practice
Act of 1854."

Under the English Act 17 & 18 Vic. ch. 102 ,s. 4, it is
provided in express terms, that treating, if done after the
election, shall be jusi the same as if done before, yet it has
always been held that when given after the election it
must be given by the candidate or by somebody who still
continues to be connected with the candidate: that the
agency of a person employed to canvass expires with the
election, and unless there was some evidence to show a
continuing authority the election could not be avoided by
the act of a person who had filled that position See
remarks of Blackbui-n, J., in the North Norfolk Case, 1
O'M. & H. 243.

The giving the goods without payment after the elec-
tion, though given in consequence of Kyle having voted,
would not expose Patterson to penalties unless shewn to
have been done in pursuance of a previous corrupt agree-
ment; but the gift, coupled with the remark made to Mrs.

NORTH ONTARIO.

Kvlo. leads to the almost irresistible conclusion, that tho
act was (lono corruptly by Patterson on account of Kylo
having' voted at the election; but it is in ray judgment a
fallacy to say that tho giving of the goods can, as regards
the eandidato, bo regarded, as was urged upon ua, as a con-
tinuation of the authority beyond the termination of the
election. It may or may not have been in the contempla-
tion of the agent to n^ake it all right with Mrs. Kyle by
the delivery of goods; as against him we mustas.sume that
it was ; but if the act as it stood at the termination of the
election was not a corrupt practice it cannot as regards tho
candidate become so, in my opinion, by an act of Patterson
after he had ceased to be an agent, although I am free to
say that I have some doubt as to the correctness of my
conclusion in consequence of the different view of the matter
taken by my learned brother.

A charge against the same Mr. Patterson was argued
at the same time. The charge is, that Patterson promised
to pay and paid a sum of money to one Powell to
vote, or refrain from voting. Patterson so far agrees
with Powell that he admits the payment of twenty-
five cents, but only one sum of twenty-five cents, out of
which Powell desired to pay fifteen cents to a man who
was working with him, and that he told him, as he
had frequently done before, that he could take the money,
ten cents, for a drink. Powell also said that Patterson
offered to lend him his horse and buggy, so as to leave
the village and not vote. This is denied by Patterson.
Powell's evidence was given in a very unsatisfactory man-
ner. In point of fact he did not avail himself of the offer,
if made, and voted. It would be most unfair to find the
charge proved on this evidence.

We come next to charge 14, which is one of treating a
meeting of electors assembled for the purpose of promot-
ing the election.

I have come to the conclusion that there was no meeting
of electors within the meaning of the statute in this case.
The difficulty has been caused chiefly by the respondent

PROVINCIAL ELECTION.

and the witness Thompson. The former was undoubtedly-
advised by Card and Haley, that there was to be a meeting
of a committee on that evening, and he appears to have
considered that they v, ere actually sitting when he arrived
at the tavern ; but that might well be, with the previous
information he had received.

In point of fact, an association was formed in November,
1882, when some of the inhabitants met together, and
discussed the advisabilit;/ "of having a live, practical
association, which would have for its object the greater
diffusion of libei-al principles, and the social and intellectual
improvement of its members."

It does not appear to have taken very deep root, or to
have flourished very vigourously, for although they weie
to meet monthly, the only three occasions when they met
subsequently were in December, when they adopted a con-
stitution, and selected a subject for debate at the ensuing
meeting, viz., the question of "The Ballot or Open Voting ;"
but tlie debate did not come off in January, as some of
the persons selected to conduct it did not put in an appear-
ance; and at the usual monthly meeting in February (the
meeting now in question), as the township clerk had
accidentally or designedly taken away the key of the
town hall, where the meeting was to have been held,
the parties not being able to get access to the hall, went
to Mrs. McVeigh's tavern, and it is contended that the
meeting was held there, but several witnesses swore, and I
think everything tends to confirm their evidence that no
meeting took place at all; and it would be immaterial if it
did, if it was really a meeting of the members of the associ-
ation for the purpose of having the debate and conducting
the ordinary business of the society.

But it was contended that even if the association was
originally formed for the purposes I have indicated, they
had overstepped the bounds originally prescribed, and
had, in fact, become a body for promoting the election of
the candidate; and this view received some countenance
from the evidence of a Mr. Thompson, whom Mr. McCarthy

NORTH ONTARIO.

lid

of
ce

complimented on his obtuseness, who did speak of this
hoin'i" the association " which did all the Reform work in
Mara, and through which the election committees were
appointed." Several respectable and intelligent witnesses
were called who denied this, and there is nothing in the
minutes or proceedings of tiie association to show thpt they
ever interfered in election matters. Even if this had been
shown it would not, in my judgment, affect the question
we are now considering, as this was shown to be the
ordinary monthly meeting, and the only business contem-
plated was the discussion of the ballot, ifcc. The charge,
therefore, in my opinion, fails.

Two other charges which were allowed to be added,
consisted of the payment by the respondent of two sums of
So each to a man named McPhail ond another, who were
teamsters in the em])loy of the respondent, and who were
sent by him with his teams to bring out voters. The
money was sworn to be paid to them to pay their expenses,
and was duly accounted for by them to the respondent,
and one dollar returned by one of them.

It is alleged that one of these was a voter, and as he
would be unable to vote at his usual polling place, the
expedient was resorted to of appointing him an agent at
another polling place near t"" 'he place to which he was
directed to drive, and with a certificate from the returning
officer so as to enable him to vote at the place where he
was deputed to act as agent.

Assuming this to be so, and that the respondent did not
expect that the party would act as agent, it is not a cor-
rupt practice within the statute, as decided in the West
Peterborough Case, Hodgins's E.G. 274, and there is nothing
to create a doubt as to the hona fides of the payment of
the money for expenses.

Then as to the expenditure by the respondent. He
received 8500 from his father, who says that as the election
would be attended with considerable expense he made him
a present of it, but not a word was said between them as
to what it was for.

PROVINCIAL ELECTION.

A great deal of unnecessary mystery was made by the
elder Gould in reference to the payment, and it was urged
that this circumstance and the fact of an entry being
made in the respondent's books of the sum so received not
in the usual course of business, and after the protest had
been entered, were circumstances which rendered it in-
cumbent on the respondent to render a very strict and
accurate account of the expenditure of that amount, and
we were referred to the Bradford Case, 1 O'M. & H. 30,
in support of that contention; but the cases are not similar.
There the candidate opened an unlimited credit at his
bankers in favour of his agent, who availed himself of it to
the extent of £7,200, and who sent in to the returning
officer a mere abstract of totals of outlay unaccompanied
by vouchers, which was knowingly done contrary to the
provisions of the 26 k 27 Vic. c. 29, s, 4.

The learned Judge under these circumstances held that
the respondent was bound to prove the legality of every
payment contained in the account from the beginning to
the end of it.

This case is very different. The money was advanced by the
father to the candidate knowing that there were expenses
unavoidably attending an election contest. This sum was
deposited at once by the candidate to his own account, and
although every opportunity was afforded to the petitioner
during the trial to investigate the candidate's books and
cheques, and to cross-examine him upon them, no improper
payment was discovered, and I thought until the matter
was referred to on argument that the petitioner's counsel had
satisfied himself.

The official return of the expenditure shews disburse-
ments to the extent of $304.95, in addition to which one
or two payments were made for purposes shewn at the
trial which appeared to be free from taint, but which
•ought to have appeared in the return. It is to be re-
gretted that in cases of this kind candidates do not keep
their funds intended to he devoted to election expenses
entirely distinct from their other funds, so as to be able to

NORTH ONTARIO.

furnish at any time a precise and accurate account, not
only of the sums expended, but to verify it by the bahvnce
still remaining to the credit of the fund. In the present
case the candidate drew for his election his household and
his business expenses indiscriminately from the same
fund; but nothing has been shewn to throw any discredit
upon his statement, and I think that on the whole the
moneys received and deposited have been satisfactoril}'
accounted for.

Cliurge No. 27. — A payment to one Patrick Haley, by
the respondent, of $10 to induce him to vote or refrain from
voting — was not proved; but an amendment was allowed, it
having been shewn that a payment of that amount had
been made to him by D. M. Card. It is sworn that this was
paid for expenses of Haley in going up for some voters
some miles distant from Gravenhurst. A doubt is thrown
upon the transaction, from the fact that a person of the
name of Devlin was sent by Mr. Gillespit.^, another agent,
on the same errand, but it is sworn that neither was aware
of the other's acts, and the messenger who was sent by
Gillespie was unable to get through in consequence of the
heavy roads, and it is proved returned the money, I
think there is no reason to suppose that the money was
paid colourably or for any purpose other than that sworn
to.

Charge number 30. — This charges Card, and, as amended,
the respondent with j)romising one Genno to use his in-
fluence to prevent one McNabb, a rival tavern - keeper,
getting a license, and to get one for Genno, in order to
induce him to vote for him. The evidence of Genno him-
self clearly establishes that he advertised himself for sale,
but there is not a particle of evidence to shew that his offer
to sell himself was ever seriously entertained.

Charge number 29. — A similar charge, as regards the
other tavern-keeper, is entirely unsupported by evidence,

Charge number 38, — It is not possible upon the evidence
to hold that the treating by either of the Sharrards was a
corrupt treating within the statute.

PROVINCIAL ELECTION.

Charge number 105. — I think the evidence of Smith's
agency is not sufficiently established, even if I could come
to the conclusion that the cormpt practice is made out.
I think that the evidence establishes that McNabb was not
influenced by the treating, but acted as a free agent. The
counsel for the petitioner had not much faith, evidently
in the charge, as he applied to amend, so as to bring the
case within section 157, which, I think, should not be
allowed.

Charge No. 71 — As charged, is the payment of the travel-
ling expenses of one Shane from Newmarket to Uxbridge.
The facts were, that one Somerville, an agent of the
respondent, drove out with his own conveyance to New-
market a few days before the poll, and brought Shane to his
own house, where he remained as Somerville's guest until
after the polling.

It is difficult to see how this comes within section 154;
and although an amendment was asked for, so as to bring
it within section 153, the case was very properly not
pressed upon the argument, as it was clearly not within it.

This disposes of all the charges. We disposed of No.
22 at the hearing, and I only refer to it in consequence of
the extraordinary disclosure made during its investigation,
that meetings of the Reform association thought themselves
justilied in nominating and recommending to the returning
officer persons to fill the position of deputy returning
officers. It was urged in justification that it was done by
the other side. All I can say is, that, by whomsoever done,
it is a most reprehensible practice, and it cannot be too
widely known that it is exceedingly improper.

The Legislature has veiy wisely provided that certain
named officials shall be returning officers, and has placed
it out of the power of the Government to name them unless
in the case of the death, incapacity, or refusal of such
official to act, so as to avoid the possibility of selecting a
partizan to fill the position ; and it is equally important
that the deputy returning officers should be selected impar-
tially by the returning officer for their fitness and aptitude

NORTH ONTARIO.

for the position, and not at the dictation or suggestion of
either of the parties to the contest or their supporters.

I am of opinion that the petition wholly fails, and should
be dismissed, with costs.

L'ning

mg a
rtant

via

Osli:r, J. A. — Tie third ))aragraph of the petition
alleges that the respondent, before, during, at, and after the
election, was, by himself and by his agents, and by other
persons on his behalf, guilty of corrupt practices " as
defined by the Controverted Elections Act of Ontario ;"and
the tirst charge I shall considei' is, a charge under one of
the sections levelled against treating in the Election Act.

The Controverted Elections Act, K. S. O. ch. 11 sec. 2,
sub-sec. G, provides that " corrupt practices," or "corrupt
practice," shall mean {inter alhi) unuery, treating, and un-
due influence, or any of such offences, as defined by this or
an}' Act of the Legislature, or recognized by the Common
Law of the Parliament of England." And although " treat-
ing ' is not, any more than is " bribery," defined eo nomine
in either Act, we have two desci'iptions of the thing itself
in the 152nd and 153rd sections of the Election Act.
(R. S. O. ch. 10.)

This charge comprises items Nos. 1 to 7 of the
particulars, and if proved involves the disqualification of
the respondent, the allegation being that he did, at the
time and place specifie<l, corruptly provide, kc, spirituous
or fermented li(juor or strong driidc to * * in order to
induce the said * * to vote ^br the respondent, or to
refrain from voting for the defeated candidate.

Upon the evidence of Joseph Barton and Thomas Ruan
I find as a fact that the respondent did treat a number of
persons at Thomas Card's Hotel in Sunderland on the
same evening that a public meeting was held for the
purpose of promoting the election. It was, as they said, a
general invitation to all in the bar. I thought these
witnesses were truthful and reliable, and though the respon-
dent denies having treated on the occasion, I think his
memory is at fault. I nnpute his denial to nothing else.
3 — VOL. II E.C.

PROVINCIAL ELECTION.

The next question is, whether this was corrupt treatino-
in order to be elected, or for being elected, or for the
purpose of corruptly influencing the persons treated " to
vote or refrain from voting," &c. We are asked to infer
that it was, because the res|)ondent was at the time engaged
in his canvass, because the persons treated, or many of
them, were probably about to attend the meeting to be
hold on that evening, and because it was not the respon-
dent's fjeneral habit to treat.

In the Stah'.ybri(l(je Case, 1 O'M. & H. 73, Willes, J., in
a passage which has been freipiently cited, says, " The
question whether or no there is 'corrupt' giving of meat
and drink must, like every other question of intention, de-
pend upon what was done, and, to a great extent, the
extent to which it was done, the manner and way. And
therefore it is a question which must alwa^'s be more or
less a question of fact."

In dealing M'ith such a question I quote the remarks of
the same learned Judge in the Bodmin Casf, 1 O'M. & H.
125, "Tlie Judge must satisfy his mind whether that which
was done Avas really done m so unusual and suspicious a
way that he ought to impute to the person who has done it
a criminal intention in doing it, or whether the circum-
stances are such that it may fairly be imputed to the man's
generosity, or his profusion, or his desire to express his good
will to those who honestly help his cause, without resorting
to the illegal means of attracting votei's by means of an
appeal to their appetites." I refer also to the Carricl'fergits
Case, 3 O'M. & H. 91, in which Mr. Justice Harrison says,
" What then is corrupt treating? In point of fact it is very
difficult to .see the difference between corrupt treating and
bribery, they run into one another." And again, "Cor-
rupt treating then must mean, ' with the object and inten-
sion of influencing the vote.' " So also Willes, J., iti the
Ij'Kimin Ca.se, 20 L. T. N. S. 991, 1 O'M. &. H. 117; and
.lackburn, J., Xorth Norfolk, 21 L. T. N. S. 249, 1 O'M.
& H. 236.

NORTH ONTARIO.

of ail

Tf, in the case before us, it had appeared that the re-
spondent, contrary to his usual habit, had indulged during
his canvass in general and indiscriminate tieating, we
might, without much difficulty, have inferred that it was
done with a corrupt — that is to say, an evil — intent. But
I am wholly unal'j to impute such an intent to what, so
far as the evidence shews, was one of the two or at most
thre« occasions on which the respondent appears to have
treated in the course of his canvass.

Treating ^;e7' se, except when it comes within the 151st
and 157th sections of the Election Act, R. S. 0. ch. 10, is
not illegal ; and in dealing with a charge of corrupt treating
under section 152, or treating on the nomination day, or
day of polling, we cannot overlook what has been called the
general practice or custom of the country prevalent among
large classes of the community. This consideration has
been acted upon over and over again in election trials, and
although, as I have said, it may be easier to fasten a corrupt
intent upon the man who in treating even once or twice
during an election contest departs from what is his usual
habit on other occasions, I cannot infer a corrupt intention
from that fact alone. T refer to the Kiwj don Case, Hodgins's
E. C. G25,G35, per Richards, C.J. ; TheNortk Middlesex Case^
Hodgins's E. C. 376, per Spragge, C. ; Glengarry lb., 17, 18,
per Hagarty, C. J. In the East Elgin Case, Hodgins's E, C.
709, even general and indiscriminate treating was excused
in a person addicted to the vice. Many of the English
cases and of our own on this subject are collected in that
case, and I do not find in them anything laid down which
would justify me in holding that the respondent was on
the facts here disclosed guilty of corrupt treating.

The charge of treating by Adams, I think should be dis-
posed of in the same way. The charge is not formulated
in the particulars, but was made without objection and
relied upon.

Item No. 20 in the particulars charges a payment
of money to Adams to be expended in corrupt treating
or bribery. The respondent paid Adams the sum of

fPF

PROVINCIAL ELECTION.

$10, US he said, to pay for his expenses and time duiing
tlie two or three or four days ho >vas engaged in
driving him about during his canvass, and also for iiis
trouble in posting bills. Adams said nothing was said
about posting bills when the money was paid, and in tliat
respect he differs from the evidence of the respondent,
though they agree that he was asked to post them. The
petitioner urges that this was a colouralde payment, and he
relies upon the fact that it is not inchided in the respon-
dent's account of his election expenses, as it undoubteilly
ought to have been. But after hearing the evidence of
Adams and the respondent upon this point, I am satisfied
that the payment was not a colourable one, and I feel that
the suspicion which was attachable to it from its omission
from the account has hcen dispelled.

The next charge is that of treating one Archibald
McNal)b, by Joseph Smith on polling day. This charge
is relied upon as one of corrupt treating under section 1 ')2,
or, under section 153, ns one of treating a voter on account
of being about to vote or having voted. The evidence is
the following :

]\fcXabh, the voter, said, tliat he had intended to vote
for Madill: that on the morning of polling day a shoi-t
time before the poll opened lie was in McMullen's tavern :
Joseph Smith came in and said he wanted him to vote for
Gould. Ho told him he would. They left the hotel
together, going first to Smith's house Avhere they stayed n
short time, and thence to a tavern kept by one Mayltee,
near the station. There Smith treated him. He " coaxeil
him " a little while they were drinking ; and from thence
they went to the poll.

Mayhee, the tavern keeper, a supporter of the respondent,
said Smith "brought" McNabb there and treated him-
Soon after Sinclair and Wilson came in and accused Smith
of stealing McNobb, whereupon Smith said "take him,''
but McNabb would not go with them. Smith said
McNabb did not tell him how he was going to vote, but
that he had heard a rumour he was going to vite for

NORTH ONTARIO.

Oonltl. The troat was before 9 o'clock. Wilson said, that
he and Sinchvir fijllowod McNabb and Sinitli to the hotel.

snw

leni (

Irinkiii'' there, and that he told Smith it was

t rill-lit " t" nnrrv off our voter" whereinwn Smith siijd

^rcXabb had promised to vote for fiouhl.

I think the proper inference to bo drawn from this evi-
dence is, that the treat was given to McNabb on account
of his lieing alxnit to vote. Even if it was not corrupt
treatiui,' within section 152, and I am not entirely sntisfieil
that it was not, it plainly had such a connexion with or
relation to the vote as to be brought within section 15.'].
We have here a voter of no fixed opinions, a " loose; fish," if
I may use the expression, ready on liis own shewing to vote
on either side, asked by a suj)p>orter of the respondent to
vote for him, and agreeing to do so, then accompanying
the latter to his house, going into the tavern on their way
to the poll and there treated, and from thence taken to the
poll by his entertainer. In these circumstances it seems
hardly to admit of dijubt that the treat was given on
account of the ])romised vote, and therefore I fin<l the
cliaige proved, if Smith's agency is made out.

As to this the evidence is, that Smith was a man who
always took an active part in any election on theKeform side.
That on <;ne occasion at least, at the request of the Vice-
President, he attended a meeting of the local political organ-
ization or connnittee for whose acts in the management, of
the election the respondent would be answerable : that at
this meeting the voters' list was examined and election
work done.

Ho is not proved to have been a membei of the com-
mittee, and he says that he was not asked to do any
work. He is not shewn to have canvas.';ed, except in this
paiticular instance, but on the polling day he was actively
engaged in driving voter.s to the poll in his own convey-
ance. This, he says, he did as a mere volunteer.

With some doubt whether he and the tavern-keeper, May-
bee, have told the whole truth upon this point, I think I
must find that the agency is not sufficiently established..

PROVINCIAL ELECTION.

I refer to the East Peterborough Case, Hodgins's E. C,
245, ami the South Norfolk Case, Hodgins's E. C, GG0-(JG4.
The next clmrge is that of the respondent treating a
meeting of electors at McVeigh's tavern.

It' this charge depended upon the respondent's evidence,
as given upon his examination before the trial, it would
seem to bo ver}' clearly proved, as he admits that lie
treated a gathering of persons whom he believed to be
his local committee, assembled for the purpose of promot-
ing the election.

The only question, then, would be, whether a committee
meeting or a meeting of the candidate's own supporters
was a meeting of electors within the 151st section of the
Act.

I confess I have felt great difficulty in dealing with this
charge, because it is apparently admitted to its full extent
by the respondent, and one of his own witnesses called to
explain it away in some respects confirms it, and because
the respondent was not himself asked at the trial to give
any explanation of the circumstances detailed by him in
his examination, or even to admit that after having heard
the evidence of his other witnesses as to the occasion and
object of the meeting he might possibly have been mis-
taken in what he says he saw and heard there. Upon ihe
svhole, however, looking at the evidence of Gillespie and
Boulton, which I see no sufficient reason to discredit, I
have arrived at the conclusion that the meeting in question
was not a meeting of electors assembled for the purpose
of promoting the election. No doubt the gathering at
McVeigh's tavern was composed of persons who were sup-
porters of the respondent, but I think they were not a
committee or association formed for the purpose of pro-
moting the elect-ion, or who met there on that occasion for
that purpose. They were members of an association — a
Reform association, as they called themselves — of a literaiy
and social character, and for the promotion of reform
principles, and were accidentally prevented from holding
their meeting in the town hall on the evening in question.

NORTH ONTARIO.

No mootinf' was in fact, as I think, or-,'anizL'(l, nUliouj/h

.1:

the

^tead of di

.1 at ihr lioti'l

nicnibers, instead oi dispersing, remained at Mir note
with the intention, which was not carried ont, of hohling
the meeting' tliere instead of in the hall. The interview
with the respondent was not pre-arranged but seems to
have been brouj^lit about by one of the members of the
association wlio knew that there was to be a meeting of
tlie association on tliat evening.

If, then, the meeting was not a meeting of a political
organization for promoting the election, nor a general
nieetin"' intentionally called and assembled for that object,
it .seems t(j me that I should not be justified in holding it
to be anything but a chance gathering of jiersons which
ctnild not, with any propriety, be called a meeting nssembled
for the purpose of promoting the election, even though the
respondent might be present and matters relating to the
election <liscussed at it.

I therefore find this charge not proved; but, considering
the evidence of the respondent and tlie 'suspicion which
undoubtedly attaches to the association as regards its
character and objects, I think that in no event should the
respondent be allowed any costs relating to this portion of
the case.

The next charge relates to a payment of So to one
McPhail.

McPliail was a teamster in the employ of the respondent,
and on the polling day he sent him out with his team to
drive voters to the poll at a polling subdivision at a dis-
tance iVom his home, and gave him So to cover his expenses.

I fail to see how this can be an offence untler the 154th
section of the Act against hiring teams, Sec, even though
the driver, in some irregular way, seems to have obtained
a certificate to enable him to vote at the poll to which he
was driving up voters.

The charge of treating Johnston by Sharrard was dis-
missed on the hearinir.

The next charge relates to the expenditure of money by
the respondent during the election campaign. This is a

PHOVIXCIAL FLKCTION.

clinrge which was strongly urged on the nrgninont, the
infurencu we were asketl to (hiiw being, that the nionty
not accounted for liad been expended in bribery, or some
other form of corrupt pi'actice.

It is shewn that thi; r"spon<h'nt's fatlier, on tlio 3rd ot
February, gave him a clie((Ue for !?.')()(). He did so because
he knew lie would be at considerable expense on account
of the election. He could not leniendjer whether the
rfs|tori(l('nt had asked him for it or not, but nothing was
snid by cithci of them as to what it was given or reipiiied
tor. 'J'lie cheque was deposited by the respondent in his
baidv account, but it was not enter<'d in his cash Ijook
until some time afterwards. It was not eliarge<l against
him b\' his father, nor was any entry of it made in the
stub of the che([ue l»ook, contrary to the lather's usual
prfK^tice with reganl to moneys given or advanced to the
sons.

There is no such detailed account of the i-espondent's
election expenses with bills and vouchors as is requiri'd by
the l<S(ith section of the Election Act, and from the account
which has been made out, in assiimed compliance with the
section, the money paid to Adams is omitteil. The result
of a close examiiiation of the respondent's accounts in
res])ect of his business, household and election expenses
during the election, is, that a sum of about 81 GO has not
been accounted for.

Such an enquiry as this is an onleal to which candi-
dates uiay expect to be subjected, nor can it be said to
be unnecessary or improper, especially where the accounts
of election expenses have not been properly kept. If there
has been a lavish and vniusual expenditure at so critical a
period as that of an election contest, it may be imjwssiblo
to avoid the conclusion that it has been of a corrupt
character, if the respondent cannot or does not choose to
explain it, as, for instance, in the Bradford Case, 1 O'M.
& H. 30.

1 do not, however, feel at all compelled to such a conclu-
sion in the present case. The impression I have derived

NOUTH ONTARIO.

2.>

from tlic ovidcncc is, that the respondent, so fur as he
is iniliviihuilly conccriioil, hrts tiied to conduct tlie cloc-
tion ill H proper way, uiid I cannot donl>t, looking at the
st'arihiiiL,' nature of the ctKiuiry which has ovid^'utly been
made into liis acts, that if anytniujj like the sum in ques-
tion had been improperly expended, or 1 may say expended
bv hiinsclt' or by his agents, in excess of tliat generally
accounted for, some trace of it would have come to light.
At the most it might be said, though 1 do not say so, that
there are sus]ticious circumstances coiniected with such
expenditure. I cannot set aside an election or infer briliery
on that ground. I refer to the observations of Richards,
('. .r, on this subj"ct in the West Toronto Cane, Ilcjdgins's
K C, at p. I2.S.

Tln-n there are charges 27, ''U, IVJ. — The payment of

!510 i)y I). M. Card, an agent of the respomlent, to Patrick

Haley to go up to (Ji-aveidunst for some voters resident

there, and of 8M)0 by F. (J. (Jijlespie to Devlin feu- the

s;inie purpose. The latter sum was I'eturneil to Gillespie,

as Devlin did not go. The former \\as not mentioned in

the re pondent's acc(junt ol' his election expenditure, and

was paid as L'ard .says out of his own moneys, and not

charged to the respondent. Suspicion attaches to this pay-

meut chictiy from the fact that Card denied in the most

absolute and umpialified manner the pnyment of money to

anyone outside of his own aciual travelling expenses while

canvassing, and only admitted this payment after Haley

had spoken of it. Haley himself was evidently not a man

who needed to be biibed, being a strong supporter of the

respondent. He swears he did go to Muskoka and bring

ilown a voter, and that his expenses were more than SlO.

I find that these charges are not proved.

Charges 29, 30, and lOG. — Bribeiy of Genno by proatise
of issuing a tavern license to him, and not to a rival
tavern keeper, McNabb, and undue influence u|)on the
latier, by threatening to deprive him of his license.

On the evidence of Genno and McNabb I .should find
neither of the charges prt ved, and if there is any thin
4 — VOL. II EC.

IT
O

PROVINCIAL ELECTION.

■equivocal in Genno's statement it is explained by the evi-
dence of Card.

Charge No. 71. — Payment of the travelling expense.', of
the voter Shane.

One Somerville, an agent of the respondent, drove his
own team to Newmarket for the purpose of bringing in
the voter. He was a guest at Somorville's house for a t!ay
or two, and was driven home by Somorville's son after he
had voted. I am of opinion that this does not come with-
in the lo4th section.

Charge 108. — Bribery of John Kyle and his wife by J.
H. Patterson, who was a(' itted to be an agent of the
respondent.

Mrs. Kyle said, that Patterson came to their house on
the morning of polling day to see about her husband's
vote, and wanted her to use her influence with him to vote
for Gould. He told her "he would make it all right with
her" or "with them." She told her husband thie, who
laughed and said he would do what he liked, and after-
wards voted. They were in the habit of de;ding at Patter-
son's store, and a few days after the election she reminded
him of his promise, whereupon and in pursuance of it he
gave her some groceries to the value of 3-i-l'')- These, as I
find, are the material facts relating to this charge. Sc far
as Patterson's evidence differs from that given by the
K3des 1 liave no hesitation in accepting the latter.

This charge is one which comes under the latter part of
sub-sec. {a) and sub-sec. (c) of sec. 149 of the Election Act.

There is first the promise of some valuable consideration
to r,;,e wife, to induce her to procure her husband to vote
at the election for the respondent, or to him through her,
to imbice him to do so, in itself an act of bribery; and
•seomdly, the gift to the wife, in consideration of the hus-
band having voted, which was also an act of bribery, but
with the additional circu nstance that it was connected
with and in fulfilment of tne original corrupt promise.

It was urged very strongly that if the case stood upon
the promise alone, there was no evidence of iha promise of

£»

,}>•

NORTH ONTARIO.

y the evi-

cpensefj of

drove his
inging in
for a t!ay
ti fifter he
)ino with-

rife by J.
;nt of the

house on
husband's
111 to vote
ight with
this, who
nd after-
it Piitter-
remindeJ
of it he
lese, as I
8c far
by the

part of
ion Act.
Icration

to vote
iigh her,
•y; and
le hus-
ery, but
miected
iso.
d upon
•niise of

any valuable consideration within the words of the section,
the promise " to make it all right " with the wife, or with
her and her husband, being too vague and indefinite to
convey any meaning or assurance of a gift of any kind in
consideration of the voting, &c.

We must, of course, look at the position of the parties,
Patterson being a store keeper with whom the Kyles
were in the habit of dealing, and to whom they were at
the time indebted.

The decision of the Court of Appeal in the Halton Cane,
Hfidgins's E. C, 288, seems to me to lay down in accordance
with authority the principles upon which I ought to
decide the present case, and I therefore make the following
extracts from the judgment of Richards, C. J., at page
202 : " In construing this statute, we must consider what
was the intention of the Legislature ; and there is no
doubt the primary object was, that votes should be
friven from the conviction in the mind of the voters and
those who supported a candidate that he was the best
person for the situation, and that the public interests
would be best seived by electing him. The evil to be
corrected was the supporting a candidate, not because
he M'as the proper person, but caum liicri. The sup-
porting of the candidate because of personal benefit to
himself; the exercise of the franchise not for the public
good, but for personal gain in money or money's worth to
the voter or the person inducing the elector to vote or not
to vote, was what the Legislature wished to guard against.

"Then what was the motive presented to the mind of
Mrs. Robins, in the case under consideration, to induce her
husband not to vote against respondent? It was that
she was to receive some substantial advantage from it,
either in money or in property — something of value. She
was to have a nice ■present. The evidence showed she con-
sidered it would be something of value — not of mere fanciful
or imaginary value, but of real value that would be appreci-
able. What occurred would well justify her in supposing
that the respondent intended to give her something of

PHOVINCIAL ELECTION.

value, and that he intended to give her, in the languiige of
the statute, a valuable (not a fanciful) consideration for
inducing her husband not to vote; and she, entertaining that
belief, tried to induce her husband to abstain from voting.
So that, in fact, the evil which the Legislature intended to
prevent actually existed in this case. This woman was
corrupted by the orter, and she endeavored tc exercise an
influence over her husband from the desire to get the
present which had been promised her." And at p. 294 :
" But I do not understand that the promise must be one for
which, wei'e it not ])rohibited by tlie Corrupt Practices
Act, an action would lie for the breach of it. The evidence
of the promise requires to be satisfactory." Again, at p.
295. "The apparent motives of the party, and the infer-
ence from the Act itself, should influence our decision."
The following passage from the La uncenton CV(6r is cpioted:
" But vjhcn im are dealhirj ivith, an election question, lue
mi'M deal ivith the motives whick are apparent, and which
ajipear from the Act itself. I cannot go into any intention
of Col. Deakin. I must be governed by what he said, and
by the inferences [ ought to draw from wliat he did and
ivhat he said." And see Himpson v. Yeend, L. R. 4 Q. B.
028 : " It is so important to the public interest that
electors should be left free to vote without any distui'liing
influence of any kind, that we feel ourselves bound, in con-
struing the statute in question, to give full efl'ect to the
plain meaning of the words used, and to ajiply them to
the substantial facts of the case, without raisiiuj subtle
distinctions or refinements as to the precise u'ords or ex-
jyressions in ichicL the promise orofer may he conveyed."
Referring to this passage, the Chief Justice concludes:
" We have no doubt that the words used did substantially
convey to the mind of Mrs. Robins that if she used her
influence, as the resjiondent wished her to, she would, in
the language just (pioted, receive money or valuable con-
sideration which she would not otherwise obtain, ami this
was calculated to opeiate on her mind as a direct induce-
ment to do what the respondent wislnid."

■i

NORTH ONTARIO.

lO'lKin'O of
o r5

at ion for

niiig tlmt

m voting.

tended to

ni.an was

erci.se an

) get the

t p. 294 :

bo one for

Practices

evidence

ain, at p.

tlie iiit'or-

decision."

is quoted:

jstion, we

nd wliich

intention

.said, and

(//(/. and

t 4 Q. B.

rest tliat

i.stiu'liing

1 1, in con-

ct to tlie

them to

uj Sid) tie

Is or c'x-

n V( yed."

Deludes :

taiitially

ised her

oulil, in

1)1 e con-

and this

induce-

■m

Looking at the relation in which these persons stood to
•each othvr, and the obvious motives of Patterson, I cannot
doubt that he intended to convey, and did convey, to
Mrs. Kyle the idea that if she pi'ocured or would induce
her husband to vote as he wished, she would receive some-
thing of value, whether in the shape of groceries, money,
or an abatement of their debt.

To hold othei-wise would, in the language of my Brother
Burton, in the case from which I have quoted so largely,
be " to open the door to eveiy kind of ingenious evasion
of the Act."

I have not referred as yet, in dealing with the question
of the .sufficiency of the promise, to the fact that a few
davs after the election it was implemented and its mean-
in;^' explained by the gift of .some groceries by Patterson
to ^[rs. Kyle, This, as I have said, was, in itself an act
of Ijribery, and if it had stood alone it would have been
necessary to carry the evidence of agency further.

But I am of opinion, that as it is shewn to have been
connected with and to have been <lone in carrying out the
previous corrupt offer, it Avas properly proved for the pur-
pose of .shewing what both parties understood that utter to
bo, and to that extent the respondent is ad'ected by what
was done after the election. 1 refer to the Gahvay Cast',
2 O'M. & H. 40, as laying down a satisfactory rule on this
suliject, and to the BrockvUle Case, Hodgins's E. C, 13i>,
152 ; Rofjers on Elections, ed. 1S80, (l.Sth) p. .350, and
note {i.i).

The last charge is that of the bril)ery of Powell by
Pattcvson. The sum said to have been j)aid is tifteen cents
01- twenty-five cents. I do not thiidc it necessary to go
over the evidence iu detail. With much doubt, and taking
the most favourable view of it, I have come to the conclu-
sif>n that it is not made out.

Since writing the foregoing I have seen the North Vic-
toria Case, Hodgins's E. C. 252, 2G2, decided in 1875, not
cited on the argument. In that case one of the charges
was that Malcolm McDougall, an agent of the respondent,

PROVINCIAL ELECTION.

had attempted to bribe Ralph Simpson, and the evidence
was, that McDougall said to Simpson he would like him to
vote for the respondent, and that if he would he would see
him another day, and that things would he made rUjlit.
Chief Justice Draper, by whom the case was tried, said : "I
think the evidence falls short of what is required to bring
the case within the statute. There was no gift or loan of
money, or offer or promise of money or valuable consider-
ation. It would, I think, be a forced and unwarrantable
construction of the words 'he would see me another time,
and things would be made right,' to hold them to import
an undertaking fraught with penal consequences." Some
weight seems to have been attached to McDougall's denial
that he said anything to Simpson to induce him to change,
by way of promise or otherwise. Still the terms of the
corrupt offer or promise in that case and in the one before
me are so nearly identical, that if there had been ni^thing
more than the pi'omise proved 1 should have thought it
right to follow the decision of that most eminent Judge,
and not the less readily because my Brother Burton, as I
understand, takes a similar view. I shall, however, allow
what I have written to stand, as it expresses my own
present opinion, and because there is here the additional
element of a subsequent explanation and performance of
the promise or offer made by Patterson.

Uj)on the whole case, therefoi'e, a single corrupt act has
been proved in my judgment to have been committed by
an agent, but without the knowlet^ge and consent of the
candidate, and the question is, whether that corrupt act
should avoid the election, or whether the case is a proper
one for the application of section 159. Upon the whole 1
think the election ought not to be avoided. It is true the
majority is very small, I think only 20, but the corrupt
practice, though not of a trifling nature, was one of trifling
extent in so far as it consisted in the bribery of one person
only. Had more than one act of bribery been proved
either against Patterson or any other agent, or if the act
proved had been one not merely of bribing Kyle's own

-if

NORTH ONTARIO.

evidence
'\.e him to
^vould see
'de ri(jht.
:,said: "I
I to brin^
3r loan of
consider-
rrantixblo
bcr time,
;o import
bome
I's denial
D change,
IS of the
le before
. nothing
ought it
.t Judge,
ton, as I
er, allow
my own
ilditional
nance of

t act has

itted by

t of the

•upt act

I proper

whole 1

true the

corrupt

■ trifling

3 person

proved

the act

e's own

vote, but of enabling him to bribe others, in any direction!
either by giving him money or employing him to canvass,
I should have felt great difficulty in giving the respon-
dent tlie benefit of the section. But here the act must
have begun and ended with Kyle alone, and therefore I
do not see how, in the language of the section, I can
reasonably suppose the result to have been affected by it.
I purposely refrain from expressing any opinion as to the
scoi)e of the section, or how it should be applied in other
cases ; a very slight difference in the facts might induce me
to think it not applicable. I cannot but feel that its
tendency is nuschievous, and that the greatest caution is
requisite in acting upon it.

As to costs, I suppose the petitioner should have them
as if the Kyle charge were the only one, but nothing
more.

I shall therefore report that it has been proved to my
satisfaction that a corrupt act has been committed by an
agent of the respondent without the knowledge and con-
sent of the candidate, but the same was of such trifling
extent that the result cannot have been affected, or be rea-
sonably supposed to have been affected thereby, and there-
foi'e that the election is not avoided thereby.

2. That the resjiondent is duly elected and returned.

3. That no corrupt practice has been proved to liave
been committed by or with the knowledge and consent of
any candidate at the election ; and

4. That there is no reason to believe that corrupt pi-ac-
tices have extensively prevailed at the election to which
the petition relates.

G. A. B.

DOMINION ELECTION.

WEST NORTHUiMBERLAND.

DOMINION ELECTION.

Before The Eon. Chief Justice Cameron.

CJoBOURG, 7lh and Sth January, ISS4.

John Haim ■ :i r'^ Henry T. Snelgrove, Petitioners, v.
y^LoLGE GuiLLET, Respondent.

Treating — h> .hny —Bettini •''h voter that he would vote — Corrupt Acts,

When an act or expressioii "^ tiiu'i-acal, and may in one aspect denote
sonietliing wrong or criminal, and in another aspect be tpiitu innocent,
tiie latter should be adopted as denoting the true meaiung of the expres-
sion or tendency of the act, unless the surrounding circumstances repel
its adoption.

The corrupt acts alleged in this case were the treating of B. a voter by
respondent's agent H. by giving him a glass of whiskey, an<l two sums
of money, $2 and 850 respectively. The treating, according to ii.'s
evidence, was nothing more than an act of good fellowship ; and accor-
ding to H. 's account, that B. was not feeling well, and the whiskey was
given in consequence. The $50 was given B. to induce him to go away
in the hope that liis absence would prevent proceedings being taken
against B. on account of his treating and giving B. tlie %!2 ; and not
by reason of any previous arrangement l»utween them tiiat B. should
receive anything. The §2 I'as given on the polling day, but after the
close of the poll. B. negatived that it was paid him for his vote, and
stated that it was given him to buy whiskey going home; while H. stated
that he supposed it was a ilollar bill, and tolcl B. to go and treat the
boys with it ; and that it was not given on account of any previous
promise, or for his having voted.

J/flil, that none of these acts constituted corrupt acts so as to avoid the
election.

A further corrupt act was a bet by R. , respondent's agent, that one P.
wouhl not vote. K. swore that he made the bet not with any intention
of InHueneing P.'s vote, which he knew such a bet would not do, but as
a sporting bet made on the spur of the moment, witli the expectation
that, as he said, P. would warm up and vote ; while P. swore that the
S5 would not have prevented his voting if he intended to do so, and
that he had made up his mind not to vote before the bet was made.

Ill-Id, also, that this w.as not a corrupt act.

The petition contained the usual allegations of bribery
&e., and claimed to have the election avoided.

WEST NORTHUMBERLAND.

'^
t-

Bethune, Q. C, and W. Kerr, Q. C, for the petitioners.
McCarthy, Q. C, and H. F. Holland for the respondent.

The facts, so far as material, are stated in tlie judgment
of the learned Judge.

May 12, 1884. Cameron, C. J. — At the close of the case
for the petitioners, there were only two cases of alleged
corrupt jiractices, committed bj' agents of the respondent,
u])on which Mr. Bethune, Q. C, counsel for the petitioners,
claimed to have the election avoided.

These wei-e contained in the particulars of corrupt
practices, delivered by the petitioners to the respondents,
in paragraphs Nos. 1, 2, 8, and 0, and were as fol-
lows :

1. Raphael Beauvois, * * was, on the 20th day of
June, 1882, at the township of Haldimand, by Thomas
Heenan, * * an agent of the respondent, treated, con-
trary to section 94 of the Dominion Election Act of 1874,
and promised the sum of .SoO, or some (jther valuable
consideration, to induce the said Raphael Beauvois to vote
for the said respondent at the said election.

2. The said Raphael Beauvois, at the time and place
aforesaid, was, l)y the said Thomas Heenan, treated, con-
trary to section 94 of the Dominion Election Act, 1874,
and paid the sum of ^'2 on account of the said Raphael
Beauvois having voted for the respondent at the said
election.

8. John Parker, * * was, on oi- about the 17th day
of June, 1882, * * paid the sum of S.") and treated,
contrary to section 94 of the Dominion Election Act, 1874,
by Robert Roderick Pringle, * * an agent of the
resjiondent, in order to induce the said Jolin Parker to
refrain from voting at the said election.

9. John Parker was, on or about the 80th day of June,
1882, paid the sum of 35, or some other valuable considera-
tion, by Robert Roderick Pringle, an agent of the respon-
dent, on account of the said John Parker having refrained
from voting at the said election.

5 — VOL. II E.G.

•*

DOMINION ELECTION.

The cliargcs contained in paragraphs 1 and 2 depend
upon tiie evidence of Raphael Beauvois and Thomas Heenan,
as to tlie coniiiiission oftlie alleged corrupt acts. There is
other evidence upon the question as to Heenan's being an
agent of the respondent.

In th(! view I take of the effect of the evidence as to the
corru|)t acts, it will not be necessary to consider the ques-
tion of agency.

The corrupt acts indicated by the evidence are two —
treating and giving money to Beauvois.

There is no doubt about the act of treating, nor of the
giving two distinct sums of money — $2 and ^-iO — bj'
Heenan to Beauvoii?. The question is not free altogether
from doubt as to the motive with which the acts were
committe<l. The treating; was not such as avoided the
election, unless it was done with the object of influencing
Beauvois. He docs not seem to have rei^arded it in tliat
light himself, and I see nothing from which I can draw
the conclusion that the two treats before Beauvois voted,
were other than acts of so-called or considered uood
fellowship, taking Beauvois's account to be correct ; and
they certainly would not be so if Heenan's version was
the right one, which was, that Beauvois was complaining
of not feeling well, and he gave him the vvliiskey in
consequence.

With regard to the giving of the $50 to Beauvois at
McGrath's, though it was a very foolish thing on Heenan's
part to do, I think it was given, as Heenan ])uts it, to
induce Beauvois to go and see his friends, in the hope that
his absence would prevent proceedings being taken against
him (Heenan) on account of his treating and giving Beau-
vois the 82 on the polling day, and not by reason of any
previous arrangement between them that Beauvois should
receive anything for his vote. There w^ould seem little
room to doubt, from Beauvois's statement, thai he expected
something ; but he had, according to his own view of the
matter, no reason to expect anything other than the fact
that Heenan had urged him ver}'^ earnestly to vote for the

WEST NORTHUMBERLAND.

j«oocl
; ciiid

111

that

respondent, or, to use his own language, hnd coaxed and
coaxinl him to do so, and had repeatedly said he would not
be sorry for it. Heenan was strongly in favour of the
National Policy, as the principle of protection in contra-
distinction to free trade is toniied ; and if he believed thnt
such policy was really in the interest of the country, and I
sec no reason to doubt he did so believe, he might well say
to a farmer that he was urging to sup|)ort the candidate
wlio upheld that policy that, by voting against its oppo-
nent, though of his own party, he would not be sorry, and
that expression was not pregnant with the hope of any
inunediate, direct, and individual advantage to flow from
the act of votintj: to the voter himself, that could not be
enjoyed by others in like circumstances with himself
Wlien an act or expression is equivocal, and may in one
aspect denote something wrong, or criminal, an<l in another
aspect be (juite innocent, the latter should be adoj)ted as
denoting the true meaning of the expression or tendency
of tht! act, unless the surrounding circumstances repel its
adoption. Beauvois's account of what took place between
him and Heenan at Warkworth, just before the ^50 were
mystei'iously conveyed to him, when at dinner, ia fin
envelope, is far from clear, owing probably to his want of
familiarity with the English language ; but, as far as it is
intelligible, it agrees with Heenan 's account that the money
was ijiven to him in order that ho might go and visit his
friends, to be out of the way.

I have, therefore, come to the conclusion it would not be
proper to connect the giving of that money with any ante-
cedent arrangement or promise on Heenan's Y)txrt.

There remains to be considered, the object and effect of
the giving of the S2 by Heenan to Beauvois behind the
school house, after he had voted. That payment being
made after Beauvois had voted, would not be a corrupt
act, unless it was made in consequence of some direct
agreement or promise made by Heenan, or conduct or
action on his part from which he intended Beauvois to
draw the conclusion, or inference, that if he voted for the •

DOMINION ELECTION.

respondent he would be paid for voting. Beauvois, in his
evidence, exju'essly negatives that tlie $2 were paid to him
for his vote, and says that when Heenan gave him the
money he said that would buy him whiskey coming home.
Heenan's account is, that he supposed it was a dollar hill
he gave him, and told him to treat the hoys with it; and
he swears most distinctly that it was not given on account
of anj' previous ])romise, or on account of his having
voted.

I think, under the circumstances, he had no business to
give Beauvois the money ; and if I had never read an
authority upon the point, and was dealing with the ques-
tion as one in which the public interests alone were con-
cerned, I would say it was so suspicious that the election
should be avoided ; but, having regard to decisions upon
similar (juestions, I am unable to say that this evidence
establishes with reasonable certainty that the payment
was corrui)tly made, that is, by reason of some previous
promise or understanding, and a previous promise or
understanding is essential to make a payment to a voter
after le has voted a corrupt act.

This is the effect of the opinion of Baron Martin in the
Second Bradford Election Ca.se, 19 L. T. N. S. 72U, and of
Mr. Justice Lush, in the Brecon Election Case, 2 O'M. & H.
4,S, at p. 44. i\lr. Justice Lush was considering the cpiestion
of corrupt treating ; but the same meaning must be assigned
to the word "corrupt," as used in the latterclau.se of sub-sec
2 of sec. 92 of the Dominion Act of 1874, as was given to
the latter part of sec. 4 of the Imperial Act, 17 & 18 Vic
ch. 102.

L\ the Monck Election Case, Hodgins 154, Mr. Justice Gait
held the following evidence did not sustain a chai'ge of
bribery : "Adam V. JMoot — I am a voter in this division. 1
votecl for Mr. Edgar. David Win,slow came to my house
before the polling. He asked me if I was coming out to
vote. I said I did not know it would be worth my while,
because I was a hired man. I said I would consider it a day
lost if I went out to vote, which would cost me a dollar.
He said, ' Come out, and your $1.00 will be all right.' "

WKST NURTIIUM ItllULAN D.

■<ub-,sec.

lion. 1

r house
out to
while,

taday
dollar.

It.' "

This was only an oft'tT : it did not appear to have been pei-
fornied, and the authorities seem to decide beyond cjUest.On
that in the case of an otter not carried out, the evidence nuist
be stronger tliiin in a case where there has lieenaeonipiett d
net. This, I presume, is because the thing done is in itself
evidence of thi' corrupt act, and strengthens that wliiei\
would otherwise have been too weak to produce conviction.
In the [ircsent ease, the voter swore that when he asked
lleeiiaii for something for his vote, Heenan told him he
could not give him anything — that he dare not do so; and
hud the .*?:! lieen given, as it was, if no more had bei'U said
lietween them, there would be no ground whatever for
adoitting tlie view tliat tlie S2 were given on account of a
corrupt understanding. But, in addition, there was the
repeated statement, if he voted with him he would not i)e
sorry. This statement, by itself, would amount to nothing:
see yoi'lli Victoria Election Case, ilodgins 1^52. Can it
properly, in the face of the statement of both Beauvois and
ileeiian, that the money was not paid for the vote, be con-
strut.'d to have been a i)aynient riiaile in conse(|uenee of some
undeistaniiing or arrangement made beforehand. I do not
think, regard being had to the resiiondent's strict rights, it
can.

The (juestion presented under paragraphs 8 and 9, by the
evidence, was a bet made by Robert Roderick Pringle, an
admitted agent of the respondent, and the money paid in
consetpicnce of .such bet, a payment of money in order to
iniluce John Parker, a voter, to refrain from voting. 'J'he
bet was made directly with the voter, that he would vote
at tlie election, consequently, as he would gain 35, the
amount of the bet, if he did not vote, and would have to
pay ^o if he did vote, the ettect of the bet was undeniably
an inducement to him not to vote; and if the probable
ettect alone wore to be considered, without reference to the
intention of the parties making the bet, the election would
have to be avoided. But it appears to me it is the njotive
or intention that constitutes the corrupt act, and not the
result merely ; though 1 think in these election cases, as

DOMINION ELECTION.

"Well as in criminal cases, the intention may bo inferred
froni tlie prohaMe result of the act done. Prinj,de Hweius
positively that he did not make the bet with any intention
of influeiioing Parker's vote, but as a sjxM'tiiij,' bet, with
the expectation of winninj,', as he believed the voter would
warm up, and that $>'> would not have induced liim to
refrain from votin},' if ho wished to do so. Parker hiniself
■said it would nt^t, and that he had fully resolved not to
vote f)efore the bet was made. I cannot, in the face of
Pringle's positive assertion that the bet was not made with
the ubjt.'ct of inHutMK'ing Parker to refrain from voting, say
that it was, lu-cause it is not impossible, or improl)al)lo,
that such a bet could be made without such intention ;
and the surroundin<j circumstances rathei stren^jtlien than
weaken the probability tliat it was made witlnnit any such
intention. Had Prin<,de been canvassing the voter and
found in him a disinclination to vote, though not a resolu-
tion not to do so, and lie made the bet, I should have had
little hesitation in holding that it was made expressly to
convert disinclination into resolution, and thus it wotdd be
a clear contravention of the Aot. But the meeting between
them A\ as, as far as the evidence discloses, without pre-
meditation; and the bet was a thing done upon the spur
of the moment, when Pringle was told by Brown that
Parker said he would not voto.

While I do not think I can properly hold this bet was
made with the intention of inducing Parker to refrain
from voting, it comes dangerously near leading to that
conclusion.

On the whole case, it seems to me that a decision for or
against the validity of the election could not be said to be
absolutely wi'ong ; and the direct statement of the wit-
nesses that, in what was done, there was no corrupt
intention being in favour of its validity, and oidy iidei'ences
that may be drawn from the acts so affirmed under oath
to be innocent against it, I must, in submission to the
current of authority in like cases, lean to the side of
validity.

WEST N()UTHrMHEIU,AND.

inforrod

HWUlllS

'1^1

iteiition

et, with

r would

liitu to ,

liiniHclf '

. not to

2 face of

*fli^l

idc with

tin,i<, say

)r()l)altle,

toiition ;

cu tliau

111}- sucli

jter and

I rt'solu-

lavti had

rcssly to

roiild be

''^

between

*'-w

Mit prc-

.-xl

,ho s])ur

''^

vn that

l)et Avas

refrain

to that

1 for or

id to be

he wit-

corrupt

''^SM

fei'ences

or oath

to the

side of

'i^l

Tliere can be no question I tldnk, upon tlie evidence,
that the respondent luinself desired to have a pure eh'etion,
tind nothinj,^ ver;,'in;,' in the sli{,ditest upon improper con-
duet on his part appears.

'I'lie liin;,Mia!4e of Haron Martin in the Wiij<tu. Klrrfiov
Cisr, I ()M. \' H. ISS, at p. 1!''2, may properly l»e applied
to the eircunistanoes of this case. He said: " If 1 am
satisfied that the candidates honestly intended to comply
with the law, and meant to obey it, and that they them-
schcs did IX it act contrary to the law, and bond Jidn
intended that no person employed in tlie election should
do any act eiintrary to the law, I will not unseat such a
person upon the supposed act of an aj^'ent, unless the act
is established to my entire satisfaction. Things may have
Imcii done at an election of wdnch 1 do not approve— for
instance, having comnnttees at public houses, hiring a. num-
ber of cai'viages * * or luring rouglis — but whu li do
not of themselves avoid an election. They are ingretlients
which may be taken into consideration, and they may
teml to shew what was the real (juality and meaning of an
ambiguous act, which may have one effect oi- another,
.'iccording as the Judge's mind is satisfied that it was
honestly or dishonestly done. It n>ay be that at an elec-
tion ceitain acts have taken place wliich the Ju<lge dis-
appnwes of, but wdncli do not satisfy him that another
act upon which the validity of the election depends was
coiTuptly done."

In the Edtit Toronto Election Case, Hodgins !)(), Rich-
ards, n. J , quoted this language with approval, and, apply-
ing it to the case tlu'n before him, said : " I have not that
clear and satisfactory evidence (»f acts contrary to law,
<lone by his agents, which will, in my opinion, justify me
in declaring the election of the respondent void, and it
therelbro Itecomes my duty to declare the respondent was
duly elected."

I think no one can read the evidence given in that case
and say that case was proper!}* d*^termined, if this should
be set aside. There is nothing in this case that can mve

DOMINION ELECTION.

any colour or bearing to tlie acts complained of, except
the circiini.stances immediately surrounding or connected
witli the acts themselves, and, as I liave already said, these
are not sufficient to justify me in placing the construction
upon tliem that they were not innocent, hut corrupt.

From the oases in which I have differed from other
Judges, I am led to believe that my own mind is too prone
to adopt an unfavourable view to respondents in these
election trials, biased perhaps by the consideration tluit the
public interests require that the people's representatives
should be chosen without undue influence of any kind
being practised ui)on the electois, or any of them, and that
the surest way of putting an end to coriui)t practices would
be, to vacate every election in which they apjx-ar to have
been practised by a candidate, or an agent, to tlie most
trifling extent.

If it were necessary in this case to decide whether
Heenan was an agent or not t)f the respondent, I should
be inclined to hold that he was. I am (piite sure, from
what appeared at the trial, tlie respondent would have
been anxious to secure the infiuenee and assistance of
Heenan ; and I think he was disposed to regai'd his pre-
sence with him in the neighbourhood of Bramley as
beneiieial to ids caM.se, and no direct request on his part to
Heenan to canvass for him would have indicated to me he
accepted his services more distinctl}' than what diil take
jjlace.

I declare the respondent duly elected, and the petition
dismissed, with costs to be paid by the petitioners to the
resj)ondent.

Iv'oiE, — The decision has Leen reversed by the Supreme Court, but the
judgment has not yet been reported.

LExNXOX.

if, except

onnccted

!ii(l, these

stniction

i|»t.

)ni other

too ])ione

in these
L that the
entatives
my kind

a lid that
ceM would
• to have

the most

wlietlier

I shoidd

au't", from

luld liave

stance of

I liis pre-

inik'V as

s part to

■At me he

lid take

petition
.s to the

lilt, but the

LENNOX.

PROVINCIAL ELECTION.

Befoul Mr. Justice Galt and Mr. Justice Osler.

NAP.4NEi;, S(i>tfmber 10, 11, and 12, ISS4.

Before the Court of Appeal.

Present :— Chief Ju.stice .Spkaoge, Mr. Ji-stice Hvrion, Mp.
Justice Pattekson, asu Mr. Justice Cameron.

Toronto, Januan/ 10, 1SS4.

EzEKiEL BiGBEE MiLEs, Petitioner, v. Alexander Hall

Roe, Respondent.

Corrupt jn'actke — Aij<'nci/ — Tn-olhuj — Pai/iiKj c(tiivax-'<prii.

L. being a municipal councillor, and as such a member of an association
which had brought out the resjiondent as a candidate for election, had
a personal disagreement with the respond'jnt, and refused to attend tlie
meeting of the nominating committee when the respondent -cccived the
nomination, and when asked by tlie respondent to support him refused,
so to do, saying that he now liad an opportunity of getting even with
liim ; but without the knowledge of the respondent he too]< an interest
in tlie election and bribed a voter.

Ileltl, that he was not an agent of the respondent, and that there \va»
evidence tending to shew tliat be was acting treacherously towards linn.

S. being an agent of the respondent, on the election day lirouglit some
whiskey to a blacksiuitli sliop near a poll, being a place where th<»
neighbours were in the habit ot congregating to warm themselves, &o.,
there being no tavern or public bouse in the neighbourhood, and treated
thi^ni present (most of them being voters) without reference to their
voting, and without distinction as to which side they supported.

Held, not a corrupt practi^v..

Certain parties were paid as canvassers in behalf of the respondent.

Held, not a corrupt practice.

The petition contained the usual chari^es of corrupt
practices.

The evidence on the mtj.st .strongly contested charges
went to show that one Lowiy, ^vho was a nmnioipal
6 — VOL. II e.c.

PROVIN'CIAL ELECTION.

II III

councillor, and as such a member of the Liberal Conserva-
tive Association, which association had brought out the
respondent as a candidate, had paid one Taylor the sum
of two dollars for a cat ; but that the said Lowry had had
a disagreement with the respondent, because the respon-
dent had opposed him in a municipal contest, and had
refused to attend the meeting of the nominatinij committee
of the association when the respondent was nominated ;
and when asked by the respondent to support him, and by
the secretary of the association to lay aside his personal
diti'eiences, he had refused to do so, and had expressed his
determination of getting even with the respondent, and
had afterwards, without the respondent's knowledge, taken
an interest in the election on behalf of the respondent,
and had made the payment referred to. The eviilence
also showed that one John Storms, an agent of the re-
spondent, had some whiskey on the polling day in a
blacksmith's shop near one of the polling booths, a place
where the neighbours were in the habit of congregating to
warm themselves, &c., there being no tavern or public
house in the neighbourhood., and had treated those present,
most of whom were voters, but without reference to their
voting and without distinction as to which side ihby were
supporters of ; and that money had been paid to several
parties as canvassers.

The majority by wdiich the successful candidate was
elected was 173.

Mr. J. K. Kerr, Q. C, Mr. Glute, and Mr. Johnston,
appeared for the petitioner.

Mr. Hector Cameron, Q. C, Mr. G. T. BlackstocJc, and
Mr. Hooper, appeared for the respondent.

Judgment was given at the trial, after the evidence was
heard, dismissing most of the chai'ges, but the Lowry and
Taylor charges were pressed in argun»ont.

Mr. Justice Osler. — I think Taylor's case is proved, so
that you can confine yourself to the question of Lowry's
agency.

LENNOX.

Conserva-
;ht out the
•r the sum
y had had
;he respon-
;, and had
committee
lominjited •
lim, and by
is personal
pressed his
ndent, and
?dge, taken
respondent,
le evidence
of the re-
day in a
tbs, a place
regating to
or public
)se present,
ice to their
they were
to several

lidate was

Johnston,
kstock, and

idence was
iOwry and

proved, so
)f Lowry's

M)'. Kerv, argued further on the question of Lowry's

awncv.

Mr. Jcstice G\lt. — How can a man be an a'^ent of
nnotlier, wlicn that man applies to the other and asks him
if he will support him and he positively refuses ? By what
process can you constitute that man the agent c( the
respondent, unless something took place afterwards which
was brought to the knowledge of the respondent, and to
which he assented or consented ?

Mr. Justk'k Osler. — The very fact that Lowry did not
attend the mooting of the nominating committee, is a fact
against his being an agent, and goes to shew that he did not
intend to support him. Mr. Lowry was <<,» <>Jj[ieio a member*
of the nominating committee, we will assume, by being a
member of the town council, hi' being a Conservative. I
suppose that is a fact which is also proved. But it is also
proved that he did not attend the annual meeting, and that
he did not attend the meeting of the nominating committee
Those two facts, if there had been nothing else, would have
been very strong facts in support of the contention of th«^
respondent that Lowr}'- was not his agent for the purpose
of that election, because ho did not appear to have acted
on the nominating committ(3e, and had not attended the
atmual meeting ; but beyond all, there is the fact that there
had been distinct and warm personal difference between
the respondent and Lowry. I don't say that that would
always be an answer, but these questions of ageJicy
depeml upon the circumstances of each case, and although
a man may support a candidate against whom he has
feelings of prejudice, yet, the fact that he is a per-
sonal enemy or opponent to the candidate is in itself a
circumstance that the candidate may rely on, when it is
sought to fix him through an agent, and when the only
instances of agency are those which are directly harmful
to liim. There is, then, the fact of personal opposition
on the part of the person sought to be proved to be
an agent. Beyond that there is the fact which is
distinctly sworn to by Mr. Elliott and Mr. Roe, by Mr.

44.

PROVINCIAL ELECTION.

'Ill

Elliott in pafticular, that Lowry was asked by Elliott to
lay aside those pei'sonal ditierences and to support the
candidate of the party : that he positively refused, and
would have nothing to do with it ; he absolutely refused
to support Mr. Roe in any way, and he refused to attend
the nieetiugs ; he threatened Mr. Roe twice that he would
remember him for the opposition at the municipal election,
and tiiat state of things continued up to the evening
beft)re the polling day. Neither Mr, Roe, nor Mr. Elliott,
nor any other person, so far as we know, except Mr,
Murney Bartells, have any notice or information of Mr,
Lowry's change of opinion.

I say, if under those oivcuuistances. a candidate can be
fixed with the acts of such a person then it is very diffi-
cult to see how a man can be a candidate at all without
being liable to be unseated by the acts of a personal
enemy.

The acts of Mr. Lowny appear to be more in the nature
of acts done for the purpose of " getting even " with Mr. Roe,
as he expressed himself, than for the bond tide purpose of
obtaining votes, at whatever cost they might be obtained,
and for those reasons it appears to me that Lowry is not
an agent of the respondent. I express no opinion as to
what his position would have been, if nothing more had
been shown than that he was a member of the nominating
connnittee. I act in the conclusion I come to upon the
evidence as to the other facts I have mentioned.

So far as findings of fact upon the different charges is
concerned, I think it satisfactorily proved that Lowry did
bribe Taylor, the negro, in the cat case. I quite l)elie\e
what Taylor was saying, but J think it is not proved thr *^-
he bribedWarner ; and Harrison's case is out of the question.
I don't think it is proved that he bribed Scheffel. From
what Scheffel himself says, I don't think the offer was
seriously made.

That in my judgment is the way in which those charges
should be disposed of.

LENNOX.

Elliott to
:)port the
used, and
ly refused
to attend
he would
.1 election,
} evening
[r. Elliott,
ceept Mr.
on of Mr.

ate can be
very diffi-
1 without
L personal

the nature

.h Mr. Roe,

)urpose of

obtained,
wry is not
lion as to

more had
oniinating

upon the

chaiges is
owry did

ite helieve
oved thr t.

i question.
From
offer was

)se charges

Judgment was reserved as to charges 81 to 85, and the
Court adjourned until Saturday the 22nd of September,
at Osgoode Hall, Toronto.

September 22, 188.3. Galt, J. — At the close of the case
mv Brother Osier and myself announced we should report
that no corrupt practice had been proved to have been
committed by or with the knowledge and consent of the
respondent, Alexander Hall Roe, and that there was no
reason to believe that corrupt practices had extensively
prevailed at the election to which the petition relates.
There were however, several charges, numbered fi'om 81 to
85 inclusive, on which we refrained from giving judgment
at the trial, and which we reserved for future consider-
ation. Tiiv:y had reference to acts done by agents and not
by the respondent, jjersonally, nor with his knowledge or
consent, and cannot therefore affect the result of the
election, as they were (if corrupt, which is the ([uestion
now before us) of such trifling nature and extent that in
my opinion the re.;i;lu cannot hav^e been affected or be
reasonably supposed to have been affected by such acts.
The charges are as follows :

No. 81. Wesley Brown, of the township of Ernestown,
in said county, agent of tiie said respondent, did at the
township of Ernestown, on the 27th February; 1883, carry
whiskey, drink, and refreslnnent on his person within the
limits of polling subdivision No. 5, of the township of
Ernestown, for the purpose of supjilying voters with the
some, and the said Wesley Brown did supply drink,
refreshment, and whiskey to the V(jters generally on said
polling day to induce them to vote for the respondent at
said election.

82. John Storms, of the said township of Ernestown,
yeoman, an agent of the said respondent, did, at the town-
ship of Ernestown, aforesaid, on the 27th day of February,
1883, being polling day at said election, carry drink,
refreshment, and whiske}' on his person, being within the
limits of polling subdivision No. 5 of the township of
Ernestown, for the purpose of supplying the same to
voters; and the said John Storms did supply drink, refresh-

PR0VI^'C1AL ELECTIOX.

d whiskey to th(

gene

rally on said polli

:i:

nients, u

(lay at said election to induce, compel or prevail upon them

to \otc for the said respondent at said election.

83. And the said Weslev Brown and John Storms, agents
of the said i-espondent, did on or about the 27th day of
February, 1888, at the said township of Ernestown, within
the limits of polling subdivision No. 5, supply drink, re-
freshment, whiskey or other intoxicating liquors to Francis
Jackson, William O'Meara, Chester Peters, Kuggles Storms,
James Lapum, Robert Rei 1, Ira D. Hartman, Levi Brown,
Sagai' Brown, John Warner, and William J. Warner, all of
the said township of Erne »wn, farmers, to in<luce ihem
and each of them to vote for the said respondent at the
said election, and also to induce the said voteis to procure
or endeavour to procure the return of the said respondent
to serve in the Legislative Assembly of Ontario for the
Electoral District of the county of Lennox.

84. The said Wesley Brown and John Storms did treat,
or provide and fui'nish drink, intoxicating li(]uors, whiskey,
and other refreshment to voters at meetings of the electors
assembled for the purpose of ])romoting the election of the
i-espondent, and they, tiie said John Storms and Wesley
Brown, on or about the 21st day of February, l8o3, did
jiay for such drink and entertaiinnent furnished to the
electors assembled within said polling subdivision No. 5,
and at McKay's hotel, in the village of Odessa, in the afore-
said township of Ernestown ; and such drink and other
entertainment was so iurnished to said electors to induce
them to vote for the said respondent at said election, and
also for the purpose of inducing the said electors to procure
or endeavour to procure the return of the said respondent
to serve in the Legislative Assembly of Ontario for the
Electoral Distiict of the county of Lennox.

8.). The said John Storms did, on the 27th day of
February, 1883, at the township of Ernestown, keep a
supply of whiskey, diink, intoxicating liquors, or other
refreshments, in Lockwood's blacksmith shop, being within
a distance of fifty yards from the polling booth in said
polling sub-division No. 5, at the village of Wilton, and
did su})ply whiskey, drink, intoxicating liquors, and other
refreshments, to William Lockwood, William O'Meara,
and to the voters generally, to induce them to vote for the
respondent at said election, also to induce them to procure
or endeavour to procure the return of the respondent to

LENXOX.

th day of
7n, within
drink, ro-
:o Franjis
is Storms,
vi Brown,
ner, all of
luce iheni
■nt at the
;o procure
cspondent
o for the

did treat,

, whiskey,

10 electors

ion of the

d Wesley

1833, did

d to the

3n No. 5,

the afore-

ind other

to induce

ction, and

o i)rocure

ispondent

for the

day of
a, keep a

or other
ij; within
in said
ilton, and
iiid other

O'Meara,
te for the
o procure
)ndent to

serve in tlie Leoislative Assembly of Ontario, for the
Electoral District of the county of Lennox.

There is no evidence to sustain charge 81. Wesley
Brown was examined. He stated he saw whiskey at Lock-
I's shop, and took a drink himself, but there is no

wool I

gave any to
mlss(^

evidence that he carried whiskey] himself or
any other persons. This charge therefore is dismisstKl, and
so are charges 83 and 84, so far as they relate to him. A.s
respects the charges against John Storms, 82, 83, and 8o,
it was proved and was admitted by him that he took a
bottle of whiskey in hisj cutter to Lockwood's shop, and
this whisk(-y was drank by the persons assenjbled there,
but there is no evidence whatever that it was given to
influence the votes of the persons partaking of it.

'i'he learned counsel for the ])etitioner, however, con-
tended, that under R. S. O. ch. 10 .sec, l.')3, this was a
corrupt practice, because as the polling was then going on,
and the persons partaking of the spirits were sonieof tlu'm
voters and had come to that place to vote, we must hold
that Storms, who was admitted to be an agent of the
respondent, was gviilty of a corrupt practice under that sec-
tion : and he relied on the decision Intel v uiven by Patter-
son, J. A., and Ferguson,. J., in the West Slmcoe Election as
sustainino- that view. The circumstances of that case and
the present are however quite different. I agree in the
opinion formed by the learned Judges who tried that case,
that the refreshments there })rovided were furnished on
account of the pei sons partaking of them " being about to
vote or having voted " but in that now before us thei-e is
no such evidence, the oidy fact proved being that a small
quantity of whiskey was brought to the blacksmith's shop
where according to the evidence of the proprietor himself
" there was a crowd there, voters on both sides were in my
shop, Hawley's friends drank out of the bottle the same as
the other.s. I was supporting Mr. Hawley."

The 153rd sec. is, "The giving or causing to be given to
any voter on the nomination day, or day of polling, on

PKOVIXCIAL ELECTION.

account of sucli voter beinj^' about to vote or having voted,
any meal, drink, or refreshment, or any money or ticket to
enable such voter to pi'ocure refreshment, shall be deemed
ii corrupt practice."

It appears to me that to constitute the giving refresh-
njents a corrupt practice it must be shewn it was given to a
voter on account of such voter being about to vote or hav-
ing voted. Otherwise, as was contended by Mr. Blackstock,
counsel for respomlent, we make sec. 1.58, which contains a
qualification, as absolute as sec. 157, which is unconditional.
In my opinion therefore these charges 82, 8.3, and 8.5 should
be dismissed, as the evidence does not support them. As
respects cliarge 84 there was no evidence. This charge,
therefore, is dismissed.

OsLKR, J. A. — I agree with what has been said by my
Brother Gait as ti) charges numbers 81 and 84. I think
they wen; disproved. So also was charge number 83 so
far as it relates to Wesley Brown.

The remaining cliarges upon which we reserved judg-
ment are those nundiered 82. 83, and 8.5, in the particulars,
in all of which it is alleged tliat the acts therein attributed
to John Storms were done by him to induce the voters re-
feri'ed to therein to vote for the respondent, and also to
induce them to procure or endeavour to procure the return
of tlic respondent to serve in the Legislative Assembly for
the electoral district of the county of Lennox.

It was proved, and I think also admitted by counsel for
the respondent, that John Storms was an agent of the
respondent.

It was also proved that at some time during the polling
day, anil, as I find, during the afternoon. Storms gave
whiskey to several persons, electors and others, at a
blacksmith's shop near polling sub-division No. 1, Ernest-
town, a place frequented by such persons for the purpose
of warming themselves, there being no tavern or other
place of resort in the neighbourhood. The quantity of
liquor thus disposed of was probably a couple of quarts.

LKN.NOX.

It was contended that Stornis's acts were covrnpt prac-
tices within sees. 152 and 158 of the Election Act
(R. S. O. c. 10).

I ain of opinion that they were not corrupt ]iractiee.s
uiidei- tlie former section, because the evidence satisfies »iie
tliat the treatinr,' was not done with an evil mind or inten-
tion, tliat is to say, with an}' intention to influence or
promott' the election. What occurred was nothing more
than the common practice, which prevails so much in this
countiy of people treating; or drinking together when tliey
meet, unaccompanied by any ulterior intention, anfl with-
out reference to tlie question of voting.

The loSrd section was the one chiefl^y relied on. Tliis
section enacts that "the giving or causing to be given to
any voter on the nomination day or day of polling, on
accouiit of such voter being about to vote or having voted,
any meat, drink, or refreshment, or any money or ticket to
enable such v'oter to procure refreshment, shall be deemed
a corru]it practice," &c.

It was strongly contended that the mere act of giving
liquor to voters on the nomination day or day of j)oliing,
assuming it to have been done under the circumstances
and for the jjurpose already described, and wholly irre-
spective of any question of intention, was a corrupt
practice imder section 158, and avoided the election. I do
nf)t desire at present to decide whether there may be an
infraction of this section without the existence of a corrupt
intent, or whether in view of the difference between the
language of sees. 4 and 28 of the English Act 17 fc 18
Vic. ch. 102. and that used in sees. 152 and 153 of our Act,
the latter section must necessarily receive the same con-
struction as the corresponding section of the English Act.
I express no opinion either way as to this. The conse-
quences of any infraction of the section are highly penal,
and we nnist be careful not to extend it to any case which
does not plainly come within its terms. Full effect must
be given to the expression 'on account of such voter being
about to vote or having voted." It will not do to say "If
7 — VOL. II E.G.

PROVINCIAL ELECTION-.

tliore li!»<l liOL'U no voting tlio voter -would not liave been
tlu.'ir, iuul then there would have been no treating (so to
call it) ; thorefbre the treating nm.st have beea on account
of the voter having voted or being about to vote." The
meat, drink, or refreshment must, in my opinion, have been
given with reierence to and in connection with the voting,
I am content for tlie piu'poses of the present case to say
that the practice stiuek at l)y the section is one moi'o of
the natin-e of that described l)y Mr. Justice Willes, in the
Bodiiua Case, 1 O'M. Sa H. 122. He says, " It should seem
to have been usual in former times, and no doi bt was the
practice at least up to the year 18')4, when the Corrupt
Practices Act was passed, without any improper design
upon the voters, and with a view to prcjfusion, which some
might dignil'y by the name of hospitality, to give to eveiy
Voter who came up pledged for a candidate, or who had
voted for a candidate, at the election, relreshment, either
by upiiiiiig a common table at some inn where the voters
breakfasted before they went to the poll, or where they
had retVesliments before they left the town, aftei- polling,
and before they returned to their homes. I cannot help
thinking that that was the sort of practice witli which,
whether corrupt or not, the Legislature was dealing in the
2ord section of the statute." I do not mean to say that
the .section is directed merely against a practice of keeping-
open liouse for voters on nomination or polling days, which
is not by that name made an illegal or corrupt practice
under the existing statutes, but which would no doubt
come within the section. It is wide enough to cover the
case of refreshment furnished to a single voter where it is
given in connection with or because of his vote. The
Legislature has no where declared that treating per se, as a
matter of so-called good-fellowship or friendship, shall be
a conupt or illegal act, further than as it may be so pro-
vided by the 151st section, when it occurs at meetings of
electors for the purpose of promoting the election, or under
the 157th section, which prohibits the sale or gift of liquor
at taverns and shops, »S:c., on polling days.

LENNOX.

Wliat lias been proved in the case before us was, as I
have ahtady said, an act innocent in itself, and (|uite
unconnected with the election, and therefore, in my jiidn--
nient, not within the 158rd section.

We have been referred to the decision of my Brother
Patterson in the West Shncoe Caw as an authority in
su])iM)rt of the present petitioner's contention. 1 do not so
regard it, as it seems on the facts to be entirely distinnuish-
able from the case we are dealing with, the corrupt piactice
there relied on being more like the j)ractice Willes, J.,
describes in the Bodntlii Case already I'eferred to.

Charges numbers 77, 7H, 71), 91, and 1)8 were disposed of
at the trial, or treated as disposed of, against the petitioner,
though 1 think we gave no formal judgment upon them.
1 niiiy add that if we had found the charges prove 1 which
we have dealt with in oin* judgment to-day, we should
nevertheless, in view of the nature of these charges and of
the majority by which the respondent was elected, have
felt bound to ujthold the election under section liil).

Tlie r<.'sult is that the petition is dismissed.

The respondent is entitled to his costs.

From these judgments an appeal was had to the Court
of Ai)])eal, and was argued on January 10, 1.^84, before
Spragge, C. J. 0., Burton and Patterson, JJ.A., and
Cameron, J.

>S'. H. Blal-e, Q. C, and Johnston, for the appeal.
H. Cameron, Q. C, and G. T. Blackstoch, contra.

January 19, 1884. Burton, J. A. — The only three
charges which were argued upon this appeal were the
charges No. 48 in the particulars, of bribing James Taylor,
by the payment of .S2 by one Loway, alleged to l)e an agent:
charge of treating by John Storms, an agent ; and the
payment of and treating by paid canvassers.

One of the learned Judges, in disposing of the fii'st of
these charges, w^as evidently under the impression that
the act was committed by Lowry treacherously, with the

PROVINCIAL ELKCTION.

vit'W of iiijnriiii^' tlit.' re.spon<l»'nt in lii.s oloction, and one
cannot say that there was no cvidonco to support that view,
as he had not very loni,' jireviou.sly tln-eatened to be even
with the respondent, in consequence of his taking part
against liiin in a municipal election. In that view the
re^pomlent would of course not be liable for his acts;
but [ think the evidence fails to establish a/^ency.

The nieio fact that Lowry was x officio, as a municipal
CtMinciilor, entitled to be a mend)er of the Conservative
Association would not in itself, without evidence that ho
had availed himself of the privilcjLfe, constitute him a
member, so as to rcjider the respondent liable for his acts
as a member of that association of whose services in the
election the respondent had ailmittedly availed himself.
Nor (U) I think that the evidence shows that the respond-
ent had iiivit«'d Lowiy to do anythinc; more than sujipoi't
him, Avhicli <lo('s not neeessarilv mean anythin;]: more than
giving- him his vote, which he I'ofused to do, adding;, "I
promised to g-et even with you, and I am j^'oing to have
an oppoitunity now."

Mr. Elliott, the secretary of the association, asked him
to lay aside his personal ditferences with the respondent
and support liim, but he still declined ; and he also refused
to attend a meeting of the association, or to have any-
thing to do with the election.

How he came to change his mind afterwards and can-
vass for the respondent is not made clear upon the
evidence, and it is shown that the respondent was not
awai'e of it. It would, in my opinion, be going to an un-
waiTantable length to hold the candidate responsible under
these circumstances for his acts.

The second charge is, that John Storms, an agent of
the respondent, gave spirituous liquor to a number of
persons on polling day at the shop of one Lock wood, a
blacksmith, near to the polling booth, and that such
gift was a corrupt practice either under the 157th or
the 152nd or 153rd section of the Act (R. S. 0. ch. 10).

LKNNOX.

I undcrstodtl Mr. liliike to conteml that thu omission of
the words, " in which spiiituous or fcrnifntoil liquors or
drinks are ordinarily sold," after the words lioti-l, tavern*
or shop, in sec. G(* of the old Aet, for whicli see. 157 ha.«»
been substituted, and the addition ot' tlie word "itlace" in
that section, were clearly intemleil to extend the j)rohibi-
tion to any j)lace within the pollinjL,' subdivision, and in
connection with the word "given "to prevent any dispo-
sition whatever of" spii'ituous li(|U(»r on pollinj^' day.

If that was the intention of the LeifislaHire, 1 think
they have signally faileil in expi'essing their meaning.
And if our construction of sec. (Id, in the Sovfti Ontario
Cast', Hodgins's K C, was tlie correct one, <i /orfivvt are
we compelletl so to hold undei- the present Act.

There was much room to doubt under the former law,
whether the .section might not be divided into two para-
gi'ni)hs, one requiring the tavern or shop-keeper to clo.se
his hotel or shop, the other applying to the .sale or gift by
any one, tavern-keepers or not, to any per.son within the
muiiicipality. We stated our rea.sons fully in that case
for our inaliility to place that construction upon it. But
the present enactment appears to me to remove all doubt
upon that point, and to restrict the prohibition, in t'xpress
terms, to any hotel, tavern, .shop or other place within the
limits of the ])olling subdivision, the word jilace, accord-
ini; to the ordiiuirv rules of construction, beinu' confined
to a place ejasdem (jeneris. The word " give "' is to be
found in both enactm<jnts, ami was intended prol)ably to
prevent an evasion of the prohibition t(j sell.

':' the Legislature intended, after the decision of thi.**
Court in the ca.se referred to, to extend the prohibition, I
thii c they would have used mure apt words, or would
have omitted all reference to any hotel, tavern, shop or
other place, and prohibited the .sale or gift generally in
the polling sulidivision ; but if they had done so we .should
have expected lo find a similar proviso to that contained
in .sec. 151.

f M

ifPH

PROVINCIAL ELECTION.

I li

I think, therefore, that the case is not within sec. 1.57,
and that there is no evidence of its being a corrupt act
under sec. lo2, or that there was any connection between
the furnisliing the dr'^ik and the voting so as to bring the
case Avithin sec. 153.

The third ground of appeal is :

.3. That the learned Judges should have found on the
evidence that the payment of certain sums of money to
John Storms, of the Township of Ernestown, .John Mc-
Kay, of the sai<i township, and James Howard and R.
Fowler, of Amherst Island, ostensibly to pay said per-
sons to act as canvassers, or for having so acted, or for
their expenses, were corrupt practices."

So far as this f*harge points to the money having been
colourably paid fo" one purpose, but with the ■"iew of its
being used for briber}'^ or other corrupt pui-poses, there is
no evidence to support it. If it is meant to charge that
employing paid canvassers is a corrupt practice, I think
the case is concluded by authority under the English Acts,
and that if our Legislature had intended that our law
should be interpreted otherwise than the words repro-
duced in our Act had been interpreted in England, they
would doubtless have changed or added to the wording of
the section, so as to convey their meaning. So far as any
addition has been made it is favorable to the view that
canvassei's may legally be employed and paid.

On the whole, I am of opinion that the appeal fails,
and should be dismissed, with costs.

Spragge, C. J. 0. — I agree with the judgment of my
Brother Burton upon the several points which are brought
before us upon this ap[)eal.

As to the agency of Lowry I think it is immaterial
whether his being a member of the municipal council, and
an avowed conservative (assuming him to have been so)
constituted him ipso facto a member of a nominating or
executive committee, and so an agent of the conservative
party, or not ; because even supposing express assent on

LENNOX.

lii.s part not necessary, it was certainly competent to him
to dissent, and the eviden3e shew,: that he did dissent
very emphatically, when asked by the candidate himself,
and when asked hy Mr. Elliott the secretary of the con-
servative association.

It is said that ho afterwards canvassed for the respon-
dent, nnd a ^[r. Eartells gives evidence of his havin;jf spoken
" for him" as he puts it, not openly in any speech, but in
conversation with electors. That of itself would not con-
stitute him an agent, even if he had in good faith spoken
to electors on behalf of the respondent, especially after
what had passed. It is not proved that the respondent
ha<l after his repudiation o£ agency accepted him as his
agent. Something is said of the respondent having ex-
pressed pleasure at Lowry having as he had been told,
agreed to forego his private grievance, and give his support
to the respondent, but this is not brought home to the
respondent ; and if it had been, it was not an act of a
character to constitute him his agent.

He did commit one act which was an act of bribery, and
if he were an agent of the respondent, the respondent would
of course be fixed with responsibility for it, it would cost
him his seat. I refer to the ineiuio jmrchase for 32 of a
<;at from the colored man Taylor.

His offer to Marshall Sheffel of a like sum if he would
vote for the res})ondent, cannot be seriousl}' urged as
the offer of a bribe, and evidently was not so regarded by
Sheffel himself. .Shetlel was a pronounced member of the
opposite party, and the offer was made alou<l and laugh-
ingly across a public street ; and [\i is evident that it was
looked upon by him as an ill-timed jest if not an insult.

One of the learned Judges who tried the case, my
brother Osier, entertained at least a suspicion that I owry
was playing false to the respondent. He says: ''The acts of
Mr. Lowry appear to me to be more in the nature of acts
done for the purpose of getting even with Mr. Roe, as he
expressed himself, than for the 6o?i'^r/u?6 purpose of obtain-
ing votes." The evidence impresses me with the idea that

i:-,:

PROVINCIAL ELECTION.

my learned brother's suspicion is well foumletl. Mr^
Justice Gait says nothing upon that point ; he had, when
the other rota Judge so expressed himself, given his own
opinion that the agency of Lowry was not ))roved, so that
we do not know that he took a different view as to the
bona Jides of the conduct of Lowry.

I cannot see that either of the rota Judges is wiong in
the conclusion at which he has arrived as to the agency of
Lowry, I incline to think tliat both are right, and they
have ceitainly had better opportunities than we have of
forming a correct conclusion as to the true character of
what j)assed in relation to the alleged agency of Lowry.
M^ iirother Osier must have felt a stronsf conviction that
Lowry was acting mala Jide when he said : " I say if
under these circumstances a candidate can be fixed with
the acts of such a person, then it is very difficult to see
how a man can be a candidate at all, without being liable
to be unseated by the acts of a personal enemy."

I think it very clear that the giving of liquor by John
Storms to several persons at the blacksmith shop of Lock-
wood is not within either sees. 152 or loS. 1 .so entirely
agree with the Judgment of my Brother Osier upon that
point, given in the Court below, that I have nothing to
add to it. The section chiefly relied upon before the rota
Judges was the loJJrd, but the section relied upon in the
argument before us is the .157th.

The argument of Mr. Blake upon that section is
succinctly stated in the judgment of my Brother Burton.
It loses much of its force when we find in the Dominion
Election Act, passed two years before, a provision in rela-
tion to the selling and giving of spirituous li(|Uors on
polling days in the very same terms (with only a verbal
ditterenc'j or two) as sec. 157 in our Provincial Act. My
brother Patterson has been good enough to draw my
attention to it. It is sec. 91 of 37 Vic. ch. 9.

It may well be tliat our Provincial Legislature thought
it wise and expedient to bring our election law into
harmony, so far as in its judgment it could properly be

obk

viJ
hij

ail

or I

LENNOX.

ton.
(ion

011

[bal
My

done, witli the election law of the Dominion. It might
obviously lead to unintentional violations of the law invol-
ving'' in some cases the settiiiff aside of elections, in others
liiojily pi'iial consequences, if the laws governing elections
diHevtMi according to whether tliey were for the Dominion
or the Provincial Legislatures.

Construing sec. 157 by itself and Avithout reference ta
the enuetinent for which it was substituted, it must, I
think receive the construction which my brother Burton
places upon it, and the woi'ds " or other place " must be
read as " other place where the forbidden liquor is ordin-
arily V>ld " upon the canon of construction which wo have so
frequently >'^ apply in the construction of written instru-
ments.

Mr. Maxwell, 1st ed., speaking of generic word^' following
mure s[)ecific words, and the former being confi.ied to words
ejiisnlciii generis, says (p. 297) : " But the general word
which follows particular and specific words of the same
nature as itself, takes its meaning from them, and is pre-
suineil to be restricted to the same (jenas as tliose words ;
or, in other words, as comprehending only things of the
same kind as those designated by them ; unless, of course,
there be something to shew that a wider sense was intended,"
and Mr. Maxwell gives several instances which illustrate
this canon of construction and its aj)j)lication. Refer to p.
208 d seq.

I will quote another passage from Mr. ilaxwell (p. 308).
" It was indeed once thought that in the 14 Geo. II.
cli. G, which made it a capital felony to steal sheep ' or
other cattle' this last expression was 'much too loose' to
include any other cattle than those already s})ecitied, viz.,
shL't'[) ; l.)ut (Mr. Maxwell adds) this extreme strictness of
construction is attributed to the excessive severity of the
law in ([uestion."

The section in question here is one of great severity if
apitlied universally, and not limited to a class cjusdehi
genrris with those enumerated. That class would com-
prise what are called restaurants, saloons, and lower down
8 — VOL. II !•:.('.

PROVINCIAL ELECTION.

in the scale " groggeries," and the like. The penalties
for oti'enced of this section are SlOO for every offence, and
the offender is subject to imprisonment not exceeding six
calendar months in default of payment of the tine. The
penalty may be one of no more than just severity if limited
to taverns and other places where sj)irituous licpioi's are
ordinarily sold, while it would operate with excessive
severity if applied outside of those classes, an additional
reason I think lor holding it to apply only to certain classes,
and that without resorting to the somewhat questionable
reason to which Mr. Maxwell says tlie decision upon 14
Geo. II. is attributed.

Upon the third point urged before us upon ajipeal, that
the rota Judges should have found upon the evidence that
the payment of certain moneys to Storms and others
"ostensibly to pay to persons to act as canvassers or for
h iving so acted, or for their expenses, were corrupt prac-
tices " I agree in the judgment of my Brother Burton.

In my opinion the appeal should be dismissed, with
costs.

fol

til

tio

th.

ai!

hi;

Camkron, J. — The appeal in this case raises throe ques-
tions for consideration and determination by this Court.
First, whether on the evidence givtjn at the trial one John
Lovvry was an agent of the respondent, so as to make the
respondent responsible for a corrupt practice committed by
him in paying one James Taylor two dollars for his vote.
Second, whether John Storms, an agent of the respondent,
was guilt}' of a corrupt practice in giving spirituous liquor
at the blacksmith shoj) of one Lockwood within a polling
sub-division of the riding, on polling day, durijig polling
hours. Third, whether the payment of cei'taiu sums of
money to John Storms, John McKay, James Howard, and
R. Fowler, to act as canvassers for the respondent, by the
respondent, was a corrupt practice.

.Vs to the tirst question the learned Judges found that
Lowry was guilty of bribery in paying to James Taylor,
a coloured man, 82, nominally for a black cat, but really

LENNOX.

iies-

'ourt.

ohu

the
Iby
ote,
ont,
[uor
liner
ling
IS of
an<l

tlie

for his vote ; but they found that Lowry was not an agent
of the respondent. The agency of Lowry rested upon the
following circumstances : There exists, and existed at the
time of the respondent's becoming a candidate, an organiza-
tion known as the Liberal Conservative Association for
the county of Lennox. The respondent was nominaterl by
what is called the nominating committee of tlie associati(m,
and, as he admitted in his evidence, he was the canditlate
of the association, and in his opinion its members were
hi; agents. By the rules of the association all municipal
councillors who are of the Conservative l>arty are mem-
bers of the association and of the nominating committee.
Lowry was a member of the town council of Napanee at
the time of the respondent's nomination by the nominat-
ing connnittee, but he was not present at the nomination
of the respondent, nor at the annual meeting of the asso-
ciation in 1883, when the respondent's nomination was con-
firmed. Owingto a personal unfriendly feeling on his part to
the rospomlent; he positively refused to attend such annual
mooting of the association, or to support the respondent in
anyway. The evidence as to this was given b}' the respon-
dent himself, and by G. M. Elliott, the secretary of the asso-
ciation. The latter swore " Mr. Lowrv was not at the
nominating committee at which Mr. Roe was nominated. I
had oomnunication w4th him on the subject of supporting
^Ir. Roe. In February last I had two or three times. The
first time was immediately before or after the issue of the
writs. I had some previous knowledge the writs were to
be issued on a certain day, and it was after I got that
knowledge, but before the meeting of the association. It
must have been just before the first of February. I asked
liim to lay aside the old ditferences ; said in all probability
the contest would be a close one, not only in this constitu-
ency but throughout the country, and it was a time when
all Ci)Usorvatives shouM lay aside all personal tlitferences
anil support the candidate; and he absolutely refused to
have anything to do with Mr. Roe's candidature, or to
support him in any way. At the same time I asked him

PROVINCIAL ELECTION,

to attonfl tlic annual meeting of the associiition, atid lie
refused to attend that, and would not have anything to
do with it ; he refused positively."

The respondent swore he supported Mr. Jainieson, an
op|.onent of Lowry, at a municipal election, and the Con-
servative party also supported Jamieson, and fm'thcr said,
" 1 luvd a conversation with Lowry about the part I took.
He told me he would remember me and 'get even with
me for it sometime.' That was in March, hS82. He was
not present at the meeting of the nominating committee
wlien I was nominated in August, 1(S82. * * 1 jiad a
conversation with him after 1 ^^as nominated, I think
aljout a month after, perhaps sometime in Se[)tember or
October, he told me he would not supjiort me. I think he
said at tlie time, I proniised to got even with you, and I
am going to have an opportunity now. I was n(^ awnre
until after the election that he did vote for me, and I
think that some of my friends, I cannot tell who it was
said they thought Lowrj' had voted for me. That was
all the conversation I had with him about my election. If
he did support me I could not tell how he cimo to do so."

On this evidence, uncontradicted as it was, it seems to
me it would be canying the principle of agency I'uvther
than it has yet been done to hold that, in the face of his
refusal to exercise his right, the mere fact of Lowry 's
having, by reason of his position as town councillor, a right
to take an active part as a member of the nomination
committee, without doing an^-thing in assertion of the I'ight
till the eve of the election, would make him an agent for
whose unlawful acts the respondent must bear the r.>spon-
sibility. The acts that he did do, as f.ir as shown by the
evidence, consisted in his bribing of Taylor already men-
tioned, and an oM'er to pay oee James Warner for his day
if he would vote for the respondent, and a further bantering
enquiry of one Shefi'el, whether he would take two dollars
and vote foi- Roe; and a witness, one Murney Bartells, an
apparent suj)iiorter of the respondent, said he once saw
Lowrv at a committee meeting, Inu did not see him takinij;

LENNOX.

o.
ins to
tlier
his

rin-ht

atioa

ight

t for

■ijion-

the

)llars

s, an

saw

any part in the proceedings, and he could not say how long
he remained at the meeting. These acts done after his re-
fu-iai to support tlie respondent and to attend the annual
meeting of the association, without its appearing' that the
responilent was awai'e of any change in his feelings of hos-
tility, if tlu'3' had changed towards him, are not such as
would establish agency even assuming that they were
• lone for the express purpose of aiding the respondent and
there was no room for suspecting or questioning iiis hoiKi
fill ex.

The evidence of agency is infinitely weakei- than it was
iu many adjudged cases in which it has been held to be
iiisuihcient to establish agency. See Sorf/t Victoria Case,
Hodgins, E. 0. 071, where many of the authorities on tin.'
([uestion of agenc}' at elections are revie^A'ed by the pre-
sent Chief Justice of the Common Pleas, whose judgment
was affirmed by the Court of Queen's Bench, 87 U. C. R.
:^.'}4. I entertain a very strong opinion that where a can-
didate is brouclit into the field bv a recoo-nised association
oi" (ugani/ation of a political party, the mendjers of such
association must be regarded, if nothing takes place to
show a repudiation by themselves or the candidate of their
agency, as the hitter's agents if they assume to act in
liis interest, and it would not be in the public iuterest
to allow a candidate to avail himself of the result of
their -services without also assuming the responsibility
(jf their acts, in so far as his seat may be affected thereby.
Otherwise, while in fact rel^'ingupon the assistance of the
organization, the candidate might escape the consequences
(>fc(M"i'upt acts committed l)y its members by refraining
from dii'ectlv recosj'nizinii' the individuals of the or'^aniza-
tion as his agents. It cannot be said that injustice can
thereby be done to any interest concerned, though it niay
render neccssar}' a new election. The opponent of the
candidate who has had the benefit of such agency will not
be prejudiced by a new election. The camlidate has no
right, if he owes his election to the exertions, corrupt and
otherwise, of the association, to complain that he is com-

PROVIN'CIAL ELECTION.

pellcd to assume the consequences of those exertions of
all kinds, as well injurious as beneficial, and the associa-
tion certainly has no right to enjoy a triumph acquired
through the coiTupt agency of any of its members, while
the general public are deeply interested in having elections
conducted in a manner absolutely free from the taint of
any kind of corrupt practice.

But it is a very different thing to hold that one who is
personally hostile to the candidate, and repudiates both the
candidate and the association as far as the election is con-
cerned, and who at the last moment, without notice to the
candidate of his intention, assumes to change his mind, and
then commits a corrupt practice, is the agent of the candi-
date for whose acts the candidate must be deemed respon-
sible. In such a case he cannot be held to have any closer
connection with the candidate or the association than any
individual supporter would have, and in that case there
must be acts or conduct on the part of the candidate from
which a recognition or acceptance on his part of the assist-
ance of the suppovi,er may reasonably be inferred. I think
in the present case there is much I'oom to conclude that
Lowry was not in /act desirous of securing the election of
the respondent, but was providing a moans by which he
might be unseated if successful, and thus get even with
him, in accordance with his threat or declaration to that
effect. But I prefer to base my opinion on the ground
that, if acting bond fide, he was not an agent of the respon-
dent, rather than to assume, without having heard any
explanation from himself, that he was acting a disgraceful
and treacherous part, not only to the respondent, but to the
party with which he had been politically connected, while
committing the corrupt and prohibited acts. I have not
overlooked the fact appearing in the respondent's own evi-
dence, that he asked Lowry to support him. That without
being acquiesced in would not constitute the latter an
agent, but coupled with his membership of the conservative
association it would, the respondent being the candidat':' of
the association, were it not for his refusal to give that

St'

rei
to

LENNOX.

G»

support. This ground of appeal is tlicreforc not entitled
to prevail.

As to the second ground of appeal, the evidence fully
supports the finding of the learned Judges, that the trent-
in"" complained of was not corrupt or a violation of either
section l')2 or 153 of the Ontario Election Act (R. S. ().
c. 10). The liquor was given to any one apparently without
reference to whether he had voted or was al)Out to vote, or
to induce him to vote or refrain fi-om voting. It was
given hv Storms at the hlacksniith's shop of one Lockwoodi
a political opponent, who himself hail a ilask, and treated
persons coming to his shop to warm themselves, th(! day
heing cold, and there being no place of resort in tlie vicinity,
without any reference to the election, but as a friendly
social act. Jn the same s|)irit was the liquor of Storms
dealt with. The treating lieing open and in the presence
uf political opponents, without the slightest reference to
the way in w hich the parties drinking were going to vote
or had voted, it would seem impossible to regard the act
as a violation of section l-'r2, and I think it equally im-
possiltle to hold that it was an act prohibited by section
l'),'] The words in that section, "on accotint of the voter
lieinc' about to vote or havino- voted" must have some
signiticance, and I agree with the o})irion exprt.'sseil })y
Mr. Justice Osier that the giving of meat, drink, or refresh-
ment, to bo a corrupt practice under that section, it must
be given in reference to and in connection in sonie wa}''
with the v( ting of the party treatecl. The mere fact that
the party has come to the neighbourhood of the' ])l!icc where
the treat is given for the purpose of voting, or just after
havino- voted, will not make the act of treating-, without
more appearing, a giving of drink on account of the voter
being about to vote, or on account of his having voted.

To violate clause 152 the treating must amount to
bribery.

To violate section 158 the act need not have any of the
essentials of briberj'. But it nuist in some way be con-
nected with tlie voting — that is, the voter must in some

€4

PROVINCIAL ELECTION.

way be lod to expect tliat be would receive sucb refresh-
ment if be went to tbe poll, tboiigb not witb the view of
inriuencing bini as to tbo way in which he should vote, or
it must be given as some acknowledgment of the fact of
his having voted, and because of his liaving voted. It is
to be observed any kind of drink or refreshment is
prohibited by section 153, and not merely the giving of
spirituous H(juors.

It was as a violation of one or other of these clauses that
Storms's act was presented at the trial ; but on the argu-
ment of the appeal it was contended that if it was not a
cori'upt practice under one or both of these clauses, it was
so under section 157 ; and were it not that the ojicration of
that clause would seem by authority to be confined to the
sale or giving of spirituous li(piors in a place where the
same is usually lawfully sold, I should have very great
difficulty in holding that tlie act complained of was not a
corrupt pi'actice committed liy an agent of the respondent.

I am of opinion, hov/ever, that the judgment of this
Court as it was then constituted in the Soatk Ontario Case,
Hodgins, E. C. 420, is conclusive upon the question, as on
principle it is not to be distinguished from the present case.
The C-ourt was not unanimous in its judgment, as that very
distinguished Judge, Chief Justice Draper, dissented. It
was there held that section G6 of the Election law of 1S()8,
32 Vict. ch. 21 (0), as amended by 30 Vict. eh. 2, only
related to and imposed a ])enalty on the keepers of hotels,
taverns, or shops where li(piors are ordinarily .sold. The
language of that clause was as follows : " Every hotel,
tavern, and shoj) in which spirituous or fermented liquors
or drinks are ordinarily sold, shall be closed during the
day appointed for polling in the wards or municipalities in
which the polls are held ; and no .spirituous or fermented
li<piors or drinks shall be sold or given to any person
within the limits of such municipality during the said
period, under a penalty of one hundred dollars in every
case."

ill

n
.^•(

LKNNOX.

The oxisting provision is as follows : " No ,'pirltuous or
fornifiited li(iuor or strong drink slinll bo sold or given at
unv liotol, tavern, shop, or other place within the limits of
a ])()lling sub-division, during the polling day therein or
niiv ]iart thereof, under a penalty' of one hundred dollars
t'or every offence ; and tl»u offender shall be subject to
iiiipiisonnient not exceeding six nionths at tlie discretion
(»f tlie Judge or Court, in default of payment of such fine."

The words in section 157 (R S. 0. ch. 10) "at any hotel,
ki'.," confine the application of the chiuse to a sale or giving
within the hotel, \:c., as much as the provision in section (J(J
(if tlie Act of lHG(S,re(piiring hotels, i^'C, to be clos-jd . And
it is only the addition of the words in clause 1 T)? after the
word "sliops" of the words "or other places," and the
omission of the words "ordinarilv s(;ld," that can possibly bo
lield to make any distinction. Tliis amendment of tlie
law took place on the 10th February, 187G.

The ,'Soath Ontario Case was tried at Whitby, on tho
ll^th May, 1S75, and the judgment of the Court of Appeal
was delivered on the 22nd January, 1H7G.

Cliief Justice Draper, in the <lelivery of his ilisseiiting
judgment — lie having exj)ressed the opinion tliat while the
first part of the clause GG in the Act of 18GS applied only
to the keepers of the phices named, tho latter pai't applied
to any person selling or giving li([Uor to another in a
tavern, kc, — after referring to the opinion of the other
members of the Court, expressed the hope that the Legis-
lature would remove the doubts by a clear statement. Tho
bill, a reference to the journals of the Legislative Assembl^^
shows, was in conuuittee of the House, and read a thinl
time on the 8th dav of Februarv foUowinix. It is therefore
])robable that the Honorable the Attorney General, wh >
had charge of the bill, was then aware of the difterence
of opinion among the members of the Court of Appeal
and made clause 157, then chiuse 3 of ch. 10, 39 Vie. 0. to
assume its present shape, with a view to remove the
doubts that had arisen, as was suggested b; Chief Justice
Draper.

9 — VOL. II E.G.

I'UOVINflAr, ELECTION.

Rut, as was pointed out to mo by my Urotlicr rnttorsrn.
clnuse l')7 is identical with clau.so 01 of tlio Uoinininii
Election Act of 1874, .'i? Vic. eh. 9 (D.), so the didrrenoe
of opinion as to the correct interpretation of clause (ih"
amon<' the members of this Court may not have influ-
encod the Le<,nHlaturo in the adoption of the clause as it
now Ktarids ; at all eve'nts, it lias not accomplisln d tliat
object. My Bi'other Patterson, in the Lincoln ('<is<',\hn]i^ii\s.
E. C. noO, came to tin; conclusion that the addition of the
words, "or other places," made no difference in the etl'ect of
the clause, which nuist still bo confined in its operation to
the jirohibited acts of selling or giving within a ]ilace ol'
the same character as a tavern, hotel, or shop where
liquors are ])ermittf'd to be sold.

The words hotel, tavern, or shop, would not in terms
cover all the places in which liquors are licensed to be
sold; as, for instance, a saloon. And if originally the
provision, as it has l)een decided, was confined to the
places named in clause 60 of thf; Act of 18()8, tlie words
"other ])l!ices" may well be confined in their opination to
places of a like nature, as hotel, tavern, or shop.

I confess, however, if there had been no decision on the
point, I should not have been able to come to the conclu-
sion that the Legislature intended to limit the operation of
claiise 91 of the Dominion Election Act, or loT of the
Ontario Act to places licenseil to sell liquors, or where
liquors are ordinarily sold. The substitution of the words
" other places" in these clauses, for the words "ordinarily
sold " in clause 06 of the Act of 1808 would seem to repel
the idea that the intention to so limit existed. The object
of the enactment originally, as signified by the heading
under which it appeared, was to secure the observance of
peace and good order at elections during the polling dayj
and it is too plain to admit of controversy that if spirituous
liquoi's formed an element of disturbance and disorder,
they would be equally potent whether drank at a tavern
or private house. I should, therefore, in the absence of
authority, have attached to the clause the meaning that

LENNOX.

(57

ect
ing
of
ay
ous
ier,

would lu! ^'ivcn to it by a layman i^morant of any principle
of constiiK'tion which confines general words following
special words in tlieir operation to tilings cjni^ilnn ijctinis,
or of like character with the things specially in<licated.

Tavern, hotel, or shop, by themselves, have no nec(>ssnry
coiiiKC'tion with the licensed sale of strong drinks. Tiiverns
existed before licenses for the sale of li(|uors. 8hop, dis-
associated from the words where strong drinks are ordi-
narily sold, has no necessary connection with the sale of
licjiior.

TIh! definition of a shop, as given in the Imperial Dic-
tionary, is "A building or apartment in which goods^
wares, drugs, &c., are sold Ity retail. 2. A building in
which mechanics work, and Avliere aio kept th(;ir manu-
factures for sale," which definition would include a black-
smith's shop.

To my mind the Legislature intended during the day of
polling to totally prohibit the sale or giving awa}' within
the electoral district of spirituous liquors or strong diinks,
and that the inconvenience that minht bo therebv causi.'d
to some jji'ivate individuals was considered of loss import-
ance, in a public point of view, than the prevention of
disorder and disturbance tliat might How from the per-
mitting li(iuor to be used within the polling siib-division.

To these observations I will only add in considering the
question it should be borne in mind that the Legislature
has made the use of liquor in four distinct cases a corrupt
practic(>. First, when it is given at any time to induce an
elector to vote or to retrain from voting. Second, when it
is given to a voter on nomination or polling day, any
where, on account of his being about to vote or having
voted. Third, furnishing it to a meeting of electors
assembled to promote the election at any time or any place
except at the usual place of residence of the candidate or
person furnishing it ; and fourthly, selling or giving it
within a polling subdivision on polling day, contrary to sec.
157. All the provisions except the last extend to any kind
of drink or refreshment, and to any place, while the last

ll!

"US

PROVINCIAL ELECTION.

alone is restricted to strong di-ink, and applies to the sell-
ing or giving the liquor to a non voter as well as voter,
and so to persons unconnected with the election as well
as to those taking part therein, which I think furnishes a
strong additional argument in favor of the view the clause
is not confined in its operation to hotels^ taverns or shops*
or other places ejusdem generis, but amounts to a general
prohibition as to giving or selling strong drinks on the
polling day within the subdivision district. The opinion
of the present Chief Justice of Ontario in the iHuuth J'Jst^cx
■Case, Hodgins, E. C. 235, of Chief Justice Draper in the
tSoiith Ontario Case, Hodgins, E. C. 439, of the Chief Justice
of the Queen's Bench Division in the KoHh We'iihvorth
Case, Hodgins, E. C. 352, and of the Chief Justice of the
Common Pleas Division in the Soiith Ontario Case, Hodgins,
E. C. 434, may be usefully considered in connection with
this question.

But for the reason already stated I do not dissent from
■the opinion expressed bj' the other members of the Court.

The thi''d ground of appeal presents the (juestion as to
whether the jjayment of canvassers ]H'i' se, witliout any
intent to bribe or influence the canvasser, or to enable him
to bribe others, is a corrupt practice luider section 149 of
the 0?itario Election Act.

Tin; learned Judo-es at the trial held it was not. Mv
Brother Armour in the North Ontario Case, Hodgins, E. C.
7M5. held that it w,".s. In this view he was sustained by
Gwynne and Tachereau, JJ., on appeal to the Supreme
Court (a), but (he majority of the Court, consisting of Sir
Wm. J. lUtchie, C. J., Fournier and Henry, JJ., took a
diU'crent view, and the weight of English authoiity under
a similar povision of the Imperial Election Act is in favour
of thu view held by the learned Judges at the triai of this
case. I confess I think the language of section 149, sul)-
sec. (c) does in terms extend to and cover a case like the
present, and prevents the payment of monej' to canvassers,
but as there Wds no corrupt intent in the present case, I

(a) W1ieder\.0ihhs, 4 S. C. 430.

vii

vai
he

i
I

LENNOX.

have more satisfaction in finding a different construction
has l)een put upon the clause by the Supreme Court and
English Judges, than that given to it by my Brother
Armour, whose opinion expressed, in his usual forcible and
clear style, Avould commend itself to me as sound and con-
vincing. I can see no distinction between the emj)loy-
ment of an orator or public spe iker, so called, and a can-
vasser, and therefore am unable to distinguish the Nortli
Ontario Case from the present.

Upon the whole case I am of opinion the appeal should
he dismissed, with costs.

Patteuson, J. A., concurred.

G. A. B.

I; ,,,:

i .

I 'i

'fQ

PROVINCIAL ELECTION.

SOUTH RENFREW.

as
we

PROVINCIAL ELECTION.

Bhfore Mil. Justice Burton and Mr. Justice Galt.

Pembroke, 20th August, ISS4.

John Harvey, Petitioner, v. John Francis Bowling,

Resiiondent.

Election Art, R S. O. ch. 10. ,m. 154, 1<>I- IGi—Controvorfo'lF.'rctiQns
A'-l, li. S. <). ch. It, O. , .V. .', .sub-x tJ, ,s. SS—Corrajitdct—fHc,/,,/, art—
Pdjiniput of rotrcK tvareltinn /'.rpirmc-'i—Conriirrcnt luidhh/ — DUqaalifi-
caliou — RcuMCdl 0/ — Ri'ro.ytrclicc Act — ,^7 Vic. c. 4, .v- 4'*>'. O.

At a Provincial election trial l>efore Camkrov, J., and Boyd, C. , '^amf.hon,
J., cortitif'l that tlu'y ditfcrcil in their judginents as to wlu'tlicr the
responilcnt was guilty of a i:r)rrii[)t {irautice umler section I(!l of the
Eleutiiin Act, K. S. U. cli. 10, in ])ayin;,f or consenting to the p: ynicnt
of tile travelling expenses of certain voters to convey tiieni to the poll ;
and be fni'thei' certified that the said respondent was proved grilty of
the said corrupt practice. — BoVD, C, also certilied as to the diliorcnce
of opinion ; and further certilied that the a lid respondent conimivtcdan
illegal act under sec. Ll-l in sanctioning the piyuiont of voters travel-
ling e^•^)enses at such election ; but witiiout any corrupt intent, and ia
ignorance wliich was involuutiry and excusable, under a belief tliat so
long as he <lid not personally bear or pay tiie s ud expenses, it w is not
illegal ; and und'^r tiie fidlest belief that the siid voters were boindor
were willing to rep ly tlie saiil expenses, or allow them to be deducted
from llieir wages.

Hrl'l. tiiat under the Act in question, R. .'^. O. ch. M, the Judges must
concur in lindingthit the respond' nt hid been guilty of a " ('orrupt
practice"' ; and th it tliere was such coneuri'cnt finding liere ; foridtliough
the linding of !iovi>, IJ. , was tliat tlie act wis an "illegal act," that
under see. '2. subs, ti, it is made a corrn()t act ; .iiid that tlie res[) iiiilent
was therefore disipi ilitieil ; and that as there was not ,a concurrent lind-
in;' under section loi. such dis'pialitie ition wis not removed ; and that
this was not atl'ected by the .Act 47 Vic. cii. 4, sec. 48 C). , as in this
respect that Act was not retrospective.

The petitioner in tlii.s case was an d ctnr, and prayed
that the retuiMi of tlic dt'fi-ndant mii^ht be .set aside, and
that Patrick Devine uiii^lit Ix' di.'clari'l cntir,! -d to the seat,
on the ground tlie respomlent was [)i'rsoii,aily dis(piaUHed

tovj
20t
Ju

SOUTH U EN FREW.

'' t

as a candidate, and in consequence the votes given for him
were A-irtually thrown away.

The petition also charged corrupt practices at tho election ;
hut nothing was said at the trial on this branch of the case,
and no evidence was given on it.

It Avas proved or admitted that an election for the elec-
toral district of the south riding of the county was held on
20tli and 27th days of Febiaary, 1883, at which the said
John I''i;uicis Dowling and (he said Patrick Devine were
cnitdi It's, and that the returning officer returned the said
John Francis Dowling as duly elected. It was also proved
or admitted that a]ietiti()n had been presented comphaining
that the said ' Francis Dowling had, by himself and
his agents been guilty of corrupt practices at such last
nit'Utioiied election. The case wa^^ tried before Boyd, C,
and Cameron, J., now Chief Justice of the Common Pleas,
by whoi ! the 'lection was declared void, and a new election
was direeied to be held. The liu'lings of Boyd, C, and
Cameron, J., so far as material, set out in the judgment of
Gait, J. Such election (which was the subject of this
trial) took place on 11th and 18th days of January, 1884.

At tie nomination ;„ pr(jtt,'-<t in the following terms was
handed to the returninsx officer :

"To Andrew Irving, Esquire, returning officer, appointed
to hold an election for the return of a member to
represent the electoral district of the south riding of the
county of Renfrew, in the legislative assembly of the
Province of Ontario, and to the electors of the said electoral
division.

" I, Patrick Devine, of the villatfe of Renfnnv, in the
county of Renfrew, merchant, duly nominated as a cauilidate
at said election for the representation of the the said riding
in ihe said assembly, do hereby give you and each and
evei-y of you notice that John Francis Dowling, of Kgan-
ville, in the said county, Physician, who has becti ])roj)osed
on this eleventh day of .lanuary, l88t, the nomination
day, as a candidate at the said election, and who claims to
be a candidate and seeks to he electeil at this election to
represtiut the said I'iding in the said ass^■nd)ly, is not duly
qualilied to be a candiuate at the said election, and this by

PllOVI^X'IAL ELECTION.

tlie judgments of Chancellor Boyd and Mr. Justice Cameron
rendered in a certain election petition filed in the Court of
Appeal for Ontario under the Controverted Election Act
of Ontario, wherein John Harvey was and is the peti-
tioner, and th(! said John Francis DoAvling was and is the
respdudent, the said John Francis Dovvling was found
guilty of corrupt practices within the meaning of the
Election Act of Ontario, and his election was set aside,
and he, the said John Francis Dowling therehy became.
and wns, and is disqualified from being a candidate at this
election, and is incapable of being elected to and sitting in
the said assembly. And I hei'eby notify you, tlie said
returning officer that I am the only duly (pialitied candi-
date nominated at this election, and tliat I should be
declared elected by acclamation, and I give you and the
said electors of the said I'iding notice of the altove facts,
and I further notify you the said electors not to ca'^t a
vote or mark a ballot at this election for the said John
Francis Dowling, as all such votes or ballots shall bo lost,
thrown away, and null and void. That I do and shall
claim to be duly elected at this election to the said
assembly as being the only duly rpialilied candidate nom-
inated and standing for .said election. And we the i;nder-
signed electors of the said riding, do hereby also notify you
the .said retuining officer and electoi'S of the said riding, of
the above facts and claim that the said Patrick Devine
should bc^ declared elected at this election, as being the
onl_y (pialifieil candidate nominaied and standing.

Dated at Renfrew, this eleventh day of January, A. D.
1884

" Patrick Devine,

" Candidate.

"J. A. Macdoxald,
" A. J. Morrow,
" T. McRae,

" Eledors."

Notwithstanding this protest the voting was proceeded
with, and the returning officer declared the respondent
duly elected. This petition was then tiled.

A. li. Creelman and D. O'Connor, for the petitioner.
Belhune, Q.C., for the respondent.

SOUTH RENFREW.

7'^

Sq^tember, 12, 1884. Burton, J. A.— All the othor
chfuj^es of corrupt practices were abandoned at tl e hearing-
wit h the exception of one charging a viohitioii by tlie
respondent of section 154 of tlie Election Act, R. S. 0.
ch. 10, alleged to have been so found by the Judges who
avoided the prwious election of the respondent.

As to this, it was urged by the petitioner, that as the
respondent had been found guilty of a corrupt jiraciice by
a report in which both of the Judges concurred, he was
ipso facto disqualified, and as only one of them was of
opinion that the case was brought within section 102 so a*
to relieve him of the penalties and disabilities which
attached to their finding under section IGl, he was at the
time of the Ust election incapable of being elected to the
Legislative Assembly, and must, unless relieved by the
recent legislation, be held to have been disqualified, and
the election must consequently be avoided.

Mr. Bethune, on the part of the respondent, contended
that the intention of the Legislature -was that there should
be but one joint report, that it was one Judicial act, in
which there can be no disagreement, and although perhaps
he could not go so far as to contend that the report must
be upon one piece of paper, still the 'oports must be in
i/i'^issima verba, or at least the same in substance, and
he referred us to a case of Girint v. Overseers of Pag-
Innn, 3 C. p. D. 80, and intimated that the learned
Chancellor had, upon the authority of that case, designedlr
altered the wording of the report when presented to bin)
in order, if possible, to prevent the serious consequences
of finding the candidate personally guilty of a corruj)t
practice, where the act was committed without any corrupt
intent, and under the belief that it was not illegal.'

I think that case is clearly distinguishable from the
present. By the law under which that case was decideil,
it was provided almost in the words of our own statute
that the Judges should determine whether the member*
whose election or return is complained of, or any ami
what other person was duly returned or elected, or whether

10 — VOFi. II E.C.

iit

74.

PllOVlN'CIAL ELECTIOX.

such election was void, and .shall forthwith certify in
Avrltin;^^ such determination to the Speaker ; and where
corrupt practices are charged lie is also, in addition to
such certificate, and at the same time to report in wi'iting
whether any corrupt oractice was or was not proved to
hinc been committed w:th the knowledye and consent of
jiny and which candidate at such election, and the nature
of such corrupt practice.

So far our own and the English Act are alike, but w^e
now couu' to a ver}' material divergence. Our Act pro-
vides that " When it is found by the report of the Judges

* * that any corrupt practice has been conunitted by
or w ith tip actual knowledge or con.sent of any candidate
at an election in addition to his election * * being
void,"' he shall be disqualifieil.

The English Act 31-32 Yic. ch. 125, sec. 43, is very
diiflrent. It is : ' Where it is found by the report of the
Judge ^' * that bribery has been committed by or with
the knowledge and consent of any candidate at an election,
such candidate shall be deemed to have been personally
guilty of bribery at such election, and his election, if lie has
been elected, shall be void and he shall be incapable of
being elected" to Parliament during a period of seven years.

The learned Judge in that case did not report tliat the
candidate had been guilty of bribery, nor did he report
that a corrupt practice had been committed with the
knowledge and consent of the candidate, but merely that
]\v was guilty of a corrupt ]iractice within the true intent
and meaning of the Corrupt Practices Act of 1854. The
MDids used in there[)ort did not necessarily' imply personal
bribery, or bribery by liis agents with his knowledge and
consent. Tliere is great good sense in the I'emarks of Mr.
Justice Grove, at p. 87, that "Where 3-ou have to construe
a penal Act, you ought to see that the offence, in respect
of which you are to bring home the penalty against the
person alleged to have incurred it, is proved to come
clearly within that which the Act contemplates as being
the offence."'

SOUTH REN. •

The learned Judo-es there liol<I tl- ' 'pon the face of this
report it was consistent witli it, t .at the candidate was
ffuilty of a corrupt pi-actice, but not guilty of a corrup t
practice ])orsonally or committed with his own knowltid^o
and consent, and the Judge not having in his report in
terms eitl er express or which were equivalent to expr.'ss
language found that bribery had bcea committed, they
could not hold the party disqualified, ilr. Justice Lindley
remarking at p. 91 , "Although I think n > particular words
are necessary, still the repoi't to disqualify, must be, I
think, so clear and precise as to admit of no doubt or
ditforence of opinion as to its meaning or legal effect."

But how is it (in this present case.) Neither of the
l(;arned Judges are strictly accurate in their reference to
the section 161. The Chief Justice of the Common Pleas
finds that the respondent was guilty of a corrupt practice
uniler s9ction 16J in paying or consenting to the payment
of the travelling expenses of certain voters to convoy them
to the polls. Section 161 does not in fact, create any
offence. What the learned Judge meant evidently to refer
to, was a violation of section 154, but no reference is made
in his report to that section. The learned Chancellor
certifies that the Judges differed in their judgment as to
whether he was guilty of a corrupt practice under section
101 of the Election Act, which as I have already pointed
out, does not refer to any corrupt practices of which the
Judges can adjudge the party guilty, but simply provides
that when it is found by the report of the Judges upon
an election petition that any corrupt practice has been
committed by or with the actual knowledge and consent of
any candidate, disqualification shall follow. But he pro-
ceeds : "And I further certify, that the said respondent coni-
iiiitted an illeo-al act under sf»ction 154 in sanctioning; the
payment of voters' travelling expenses at such election."
Adding, " but without any corrupt intent and in ignorance
which vvas involuntary and excusable under a belief that
so long as he did not personally bear or pay the said ex-
penses it was not illegal ; and under the further belief that

PROVIN'CIAL ELECTION.

the said voters were bound or were willing'' to repay the
said expenses or allow them to he deducted from their
wages." And then he adds a certificate of the further fact
necessary to relieve the candidate of the disabilities incur-
red on being proved guilty personally of a corrupt ])ractice,
viz., that he had honestly desired and in good faith
endeavoured to have the election conducted according to
law.

In the light of what was mentioned by Mr. Bethune as
to the alteration of the report by the Chancellor, we may
perhaps assume that what the learned Judge intended to
convey was that they diU'ered as to the effect of sec. IGl
upon their report.

The report itself is re(|uired by sec. 58 of the Contro-
verted Elections Act, and points out what the Judges are
called upon to report. The learned Chancellor says in effect:
" I hesitate to stigmatize as a corrupt practice an act done
under the circumstances stated in my report. I therefore
report the facts with the extenuating circumstances ; if in
law that does constitute a corrupt practice, be it so, but I
desire the respondent to have the benefit of any doubt upon
the point, as I cannot bring myself to stigmatize it as a cor-
rupt practice." And that, as I understood it, was the effect
of Mr. Bethune's contention : that the Judges have not con-
curred in finding a corrupt practice in so many words, and
that being so, disqualification did not follow ; but still 1 think
we are bound to enquire, although the reports are not in the
precise words of the Act of Parliament, whether they do
contain words which unambiguously and necessarily in-
volve a joint finding of the Judges of an act by the
respondent, which in law constitutes a corrupt practice.
Mr. Justice Cameron, as I have already pointed out. makes
no reference to sec. 154, but he does find expressly that
the respondent was proved guilty of a corrupt practice, to
wit, in paying, or consenting to the payment of the travell-
ing expenses of certain voters to convey them to the polls.
The section in question provides hiter alia, that the pay-
ment by any candidate, or by any person on his behalf, of

til

SOUTIT REXFHEW.

the travelling anrl other oxnenscs of any voter in i^oitin; to
<iv roturninix from the election shall be illegal acts, and
under the interpretation clanse any violation of the section
is (k'clared to l»e a corrupt practice. ]f; therefore, hoth
the Judges had signed this report, even M-ithout the express
declaration to be found that he was guilty of a corrupt
practice, I think it clear that as a consequoncL' the respon-
dent Avould have been dis([ualifi».(l. The learned Chancellor
whilst declaring that he differs from the Chief Justice in
finding the respondent guilty of a corrupt practice under
sec. IGl, does find that he committed an illegal act under
sec. 154 in sanctioning the payment of voters' travell-
ing expenses at such election. It is thei'eforo found by
botli reports that an illegal act was committed, and with
the knowledge and consent of the respondent. They are
both referring to the same act, and they both agree as to
its illegality. That illegal act was the pa3'ment, or sanction-
ing the payment of expenses prohibited by sec. 154, and
was therefore without any corrupt intent in law a corrupt
practice, and being found to have been committed with
the knowledge and consent of the respondent, he necessarily
became, in my opinion, disqualified under sec. 101, and
o^uld not be relieved from such disqualification unless the
Jud'fcs concurred in relieving him under sec. 162.

I can scarcely conceive a stronger case for applying that
section upon the facts foimd by the Chancellor. Here is cin
ambifjuously worded section declarinsj; certain acts to be
illegal acts and the part} affected only becomes aware of
its being a corrupt act by groping among the interpreta-
tion clauses. He is found to have honestly desired and
endeavoured in good faith to have the election conducted
according to law, and under the belief that the payments
were merely advances to the men on account of their
wages. It is quite possible that a hand fide advance of the
men's wages, even though it were known that the monej*
was to be used in paying their travelling expenses, would
not come within the Act, and it is fair to assume that if
that had been established the learned Chancellor would

1^^

I'UOVl.Nl lAl, KLLCTlUX.

not lijivc fouiul un illigal act c'()iiiniittt.'il, Init tliat was not
iip^jri'L-iitly .sliL'wn ; and 1 think it clear that if I am
coiict in hoklinj^' that the act itself is found by the two
Judges, l)oth holding it to be illegal, it was absolutely
necessary to get their joint concuiTtnce before the respon-
dent could invoke the relief atlorded under section 102.

I am of opinion, therefore, that when the respondent
oflered himself for re-election he was dis(|ualitied, and
that the present election niu.^t be set asitle unless it has
been validated by recent legislation.

That legislatitui is to be found in section 48 of the
Act of the la.st session, i nuist confess that the mean-
ing of the section is not so clear as one would expect
to find it in an Act lor which a retrospective opera-
tion is claimed. It reads thus : " To remove doubts, it
is hereby declared that it las been, and Is, the policy
of the election law, and the intention and meaning of
the several statutes in that behalf, that no election was
or is void for any irregularity on the part of the returning
officer, unless it ajipears to the tribunal having cognizance
of the question that the irregularity aliected the result of
the election." It is not necessary to say whether this
etlects any change in the law, but there is no doubt that
the language embraces past as well as future elections.
It then proceed:! : "and that no candidate or other person
is disqualified or subject to any disability or penalty for
any corrupt practice or alleged corrupt practice without
the concurrent judgment to that etiect of the two Judges
by whom the election ])etitiun is tried."

I lind it very difficult indeed to place a construction
upon this portion of the section. It is quite clear that
under the election law, as it stood previously, the Judges
had nothing to do with adjudging a party disqualified, all
that they did or could do was to find whether the party
chaiged was or was not guilty of a corrupt practice. If
the Judges united in finding him guilty of a corrupt prac-
tice the disqualitieation followed as a legal consequenco.
The .section must, except ujion the hypothesis I .shall pre-

SOUTir lU'N'FRKW.

' '1.'

seiitly nifor to, have ln'cn pi'iiiicil liy somo one wlio \s!is
unaware of tlic i'xistiii<^' stuti' of tlir laws aii"l suj)p(i,'>r>l
tliat til*; power to (U'daif a person (lisiiiialilicil or siil)j(( t
to a penalty restccl with tlic Judges whereas tlir law
merely enabled the Ju(l|^fes, in the event of (lisipialilica-
tion, if certain facts were e^tahlishcd to tlirir satistaetion,
to relieve the parties fioni the disahilities.

There is one possible ease to which it iiii^-lit ai)ply, \\/..,
if a party liad been guilty of a corrupt jaacticct bci'ojc the
passin;,' of the Act of Parliament but the trial of the peti-
tion ill which it was alleged did not come off till after it>
pa.ssage, I incline to think that in such case it would ha.\o
been ni'cessary \inder the Act for the Judges to iind not only
that the corrupt practice liad been comnntted with tlit.-
knowledge and consent of the candidat;', but that they
should also fin<l, contrary to the pre\ious law, that tie."
party charged Avith the corrupt piactice was disijualilied
or subject to disability or penalty. That docs not aiti)ly to
the present ease when the respondent was not only charged
with coi'i'upt practice, but liad been adjinlged guilty of it
before the passing of the Act. when it would have been
ultra r/jr.s for them to adjudge him disqualified or subject
to penalty.

I feel even more diificulty in idacing any intelligitile
meaning on the passage immediately following that I
liave (pioted, which reads thus: "That this applies to
section 1G2 of the Election xVct, and the contlitions aii<I
circumstances therein mentioned as well as to other mat-
ters on which corrupt practices or the consequences thereof
in any way depend." What is meant by the M'ords " that
this applies ?" Section 1G2 enables the Judges, as I have
said under certain condition.s and circumstances to i-elieve
tlie party charged from the disal.)ility and penalties he has
incurred, if it is meant that in granting such relief thei'e
must be the concurrent judgment of the Judges, that as
I understand it always has been the law.

The remaining portion of the section is clearly prospec-
tive, but were it otherwise it would not, in my o[)iiiion,

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l'l!i)VI\([AI, ELKCTIOX.

assist the i-i'spoiidfiit, iiiii^inucli us tlu- jii-actices volii'il (,n at
tli(! iuini'T I'lri'tion iis cornipt practices were set up arnl
j)i'i)vr(l at llic f(»ni('r trial, ami so aiiju(l<^o(l as by law to
involve (lisipialitication, altlioii^li tin- JikIljos did not con-
cur in relieving' tin- rcsj)i)udt'irt tVon* the consiMpicnccs. I
think Wf an- tlirrtfoiH; compelled to liold the <.'Iection void,
and to set it a~ide, with costs.

Upon th(! (juestioii of awardiiiLj the seat to his oppoi»ent,
T think this is not a case e\-en if notice of the respondent's
dis(|ualiHcation were brought home to the voters much

COU

trive

more clearly than it has been in which

oH'ect to it. I aoopt the language of the Clitheroe (^im-

mittee, which %

in the LiiiYu'CAton C'f<f\ that to <rive eti'ect to the notice,

'ted with ai»pr(A*al by Lord (.'oleridge

the disiiuaUicai ;('*) n^ - t be foundi'd (»n some positive and
iact ^. ^'st" lit established at the time of the

defii

Versene

(lua

as to

» :he fair inference of wilful per-

the i)arL of the electors votinj; for the di^

x'rson.

litied ^

The eliect of our decision is. that the respondent was
dis(julitied and incapacitated tVom being a candidate.

There is. I su])[) )se, no doubt that if the \-ot(.'rlias know-
ledge of certain facts, and they by law render the candi-
date incapabli' of being elected, then if tin- voter with such
knowle(lge chooses to vote for that candidate he throws
away his vote, and it is the same as if he hail not voted.
It wouM be no answer in such a case to say that he was
ignoiant of the law. So, also, pro])ably where notice* is
given of facts such as would put a person of ordinary care
and intelligence on einjuiry, aatl if he exorcised ordinary
diligence a:ul intelligence on such (Uiquiry it would lead
him to the conclusion that the facts did e.xist which would
in law incapacitate the candiilate, then he cannot absolve
himself bv asserting' want of knowleil^fe either of the facts
or of the law, but it would lie pushing such a thjctrine to
an extreme length to apply it to a case like the present
when the disijualitication depended upon a (piestion upon
which the Judijes deeidiuLr the I'lcts were in doubt, and

SOUTH RENFREW.

tlirce eniiiiont counsel Irul given an opinion ailversc to the
view tliat tlie respomlent was tliscjuaiifiet', Itiit I am re-
lioved tVoni deeidin;^ the (juestion on tliat grouml, as
altlioui^h I Hnd tliat tlie notice was very ;i,'enerally cir-
culated in certain localitifs, it still leaves a douht up ni my
iiiiiid. a dr)ul»t which, under the ballot system, it may lc»
iinpossihle to solve, to what extent that knowledj,'e was
hroULjht home to the voters.

I am, therefore, of opinion that we cannot award the seat
to the other candidate, hut must confine ourselves ti>
doclarini; tht; election void : that no e(HTU}»t practices at
this election were proved: and that thert; is no re.-tson to
helieve that coi'rupt piwtices have extensivel}' prevailed
at the election to which the petitit)n relates.

(lAi.r, J. — The learned JudL,fes Ix'fore whom the first
election was tried altliough they agree as to avoiding the
election, ditlered in their finding as to the conduct of the
roiiondent in this. (Jameron, J., found as follows : "And
in further pursuance of the said Act, I certify, that we, the
said Jud'j-es ditft.'red in our iudLrineiits as to whether the
said John Fiancis Dowling was guilty of a corrupt prac-
tice nmler section 1(U of the Election Act in ]);ivin<' or
consenting to the paynient of the travelling exp(>ns(>s of
certain votei-s to convey them to the poll, and I, the said
Matthew Crooks Cameron, f(»r mvself, certify that the said
•Tohn Francis Dowling was proved guilty of the saiil cor-
rupt practice."

The learned Chancellor reported: "And in further
jiursuance of the said Act, I certify, that we, the said
JudL'es differed in oui- judLrments as to whether the
said eantlidate the respondent was guilty of a (corrupt
practiee mider section IGl of the Election Act, And 1, the
siiid John Alexaniler Boyd, for my-ielf, certify that the said
respondent connnitted an illegal act under section l.')4 in
sanctioning the payment of voters' travelling expenses at
such election, but without any corrupt intent and in igno-
rance, which was inv(jluntary and excu.sable, under a belief
11 — VOL. II E.C.

PROVINCIAL KLKCTION.

that so loTii,' as he did not porsoruilly hear or pay the sai'l
expenses it was not illennl, and under the further bidii't' tliat
the sair! oters were bound or were williii'-' to reiiav the
said expanses or to allow them to he deducted from their
wages."

There is some verbal inaecutaey in the reference t"
section KJl by I'oth tlie learned Judi^es, and that v. liat
is intended is udt whetlier the respondent is guilty
of a eoriu])t practice under section Kil, but whethei
the act of Avhieli both the i 'arned Judges found 'dm
guilty would subject him to the ])i'nalties enacts! by
section Kil.foi' section Id I itself contains no mention of
anyeori'upt piactic.\s. It is as follows: "When it is found
by the report of the Judges upon an election i)etition that
an}' cori'upt practice has been committed by or with the
actual knowledge or consent of any candidate at an
election," and that the next section does not apply, tlien
" in addition to his .dection, if lu.' has lieen electeil, being
void, he shall durin;; the eight years next after the date of
his being so found guilty, be incapable of being elected to
and of sitting in tlie Legislative Assendily," k(;.

The coii'upt })ractice found Ity Cameron, J., and th(,'
ilb'gal act un<ler sec. 1")4 found l)y thi' Chancellor, were
one and the same, nanifdy, tlie payment of voters' travelling
expenses.

hy section l.')4 such an act is declaird to be an "illegal

1 to be ii "corrupt act." But

t." It is not in tei'uis

(leclai'ei

by the Controverted Elections Act, 1{. S. ( ). cli. 11, sec. '2,
sub-sec. 0, any violation of the l.')4th sectii,)n is declared to
be a " corrupt act." It therefoi'e follows, as it ajipears to
nie, that when the learned Chancellor found that the
respondent " committed an illegal act un<1er section lo4,
in .sanctioning the payment of soters' travelling expenses
at such lilection, but without any corrupt inttnit," lie mu.st
be held to liave found him guilty of a "corriijit act." An
illegal act "vould not necessarily avoid his elei'tion, but a
"corrupt act" A^ould, and both the learned J ud<''es jou-
curred in holdiiiLi- that the election was void.

sou in i:i;m'hkw.

By section oJS of 11. S. O. ch. 11 " Allfnatioiis of c ,rnijit
nrac tiers a;j,)Uiist a camlidiitt' or liis a^^ciits ^luiU be t'ied liy
two of tlie Ju(l<,'t's on the ruUt sittijig to^ttlicr, * * ; and
no cantlidate shall lie unseated for corrupt practice, nor
shall any person l>e declared ;,'uilty of a eoirui>t practice
except upon the decisi(»n of the Iv o Jud^is jointly, or df
the C^nut of Appeal."

By the foie^oing it is ex}>ressly enacted that before a
candidate can he unseated oi' he deelareil <,niilty of a
corrupt i)ractice the Judges must concur. Jn the present
ease there was one ae't in (piesfion heftjre the learned
Judijes on which they did concur in unseatinjj' the candidate
for his ouii act, an<l nnist tlierefore necessai'ily have
concurred in liudin;^^ Idni guilty u( a coriupt practice, tlie
latter jiart of the section rel'ers to i)erson.s othei than tlie
candidate, althoULih it clearl\- includes him also. Jltt'civncf
has been made to It. .S. O. ch. lU, .see. 102, v, hich at tin-
time when the first trial took place (it has since been
amended) was as follows : " If it appears to the Court or
the .judges trying an election [.etition, that an act consti-
tuting in law a corrupt practice was committecl iiy a candi-
date or with his knowledge and consent, but without any
corrupt intent, and in an ignoiance Avhieh was involuntary
and excusable, and that the evidence shewed the candidate
to have honestly desired, and in gocd faith endea\oure(i
as far as he coulil, to have the electi<m coniluctt d according
to law, the 'andidate shall not be subject to the penalties
and <lisabilities which he would but for this section incur
under the next preceding section."

This has since been amended, and, in my opinion, very
properly, and if either of the; .Judges now entertains the
opinion of the good faith of the candidate he shall be
excused, but it was not so when the trial now in ipiestiou
took place ; it was ut that time neee.s.sary the Judges nIiouIu

agree.

It is plain from tlie tlmling of the learnetl Chancellor
he thought the respondeiit entitled to be relieved under
section 1(J2, becai'.se he ha.s reported in the very won Is

r^^F

PROVINCIAL ELFaI'IOX.

of tlu' stjitutf, Itiit it iicccssfirily follows lie must have
tlioiiLrlit tliat, but for tills soction, lio was liable to tho
ix-nalt}' UK-ntiont'il in tlie IGlst s "ction or it woiiM liavelicpn
unnecessary to fi-aiiM- liis i-eport as he (li<l ; and this also
aecounts for the diffcrenco of opinion of the learned Judges
as to whetlicr tlie respondent was <,'uilty of a corrupt prac-
tice under secti<»n 101, that is to say, not ns to whtther
he had ht'cn ,2^uilty of a cin-rupt practice, Itut whether
ha\in;^' been so he was liable to the penalty therein
enacted.

It was also contended l)y Mr. Betliune that under tin;
tiiMiis of th(> statute, befor(3 a peison eoidd be dis(piali!ied,
there must be a report of the two Judges, not a separate
report by each.

By the Interpretation Act sec. S, siib-soc. 2^, words sup-
portini,' the siu_fular number or the masculine (render only
shall ini'lu<le more pei'sons, parties, or things of tlie same
kind than one.

I can see no reason whatever why a diH'erent meaning
should be attached to the word " rejiort" in this case than
would gen<'rally be given to it, nor why when the tei-m
" report (jf the Judges," is used it nnist necessarily follow
that onl^' one report can Ik? maile in ])lace of each if the
learned Judores making a separate report, it is true that
before a dis(pialiHeation can take place and a meinber bo
unseated the Ju<lges must agree in their conelr.sion.

In the present case the learned Judges agi'ced that the
election was voi<l but they disagreed as to tho conduct of
the candidate entitling him to relief under section 1G2, tlio
result of which was that the ilisrpialitication under section
IGl existed.

If Mr. Bcthune's argument is correct it Avas quite
unnecessary to pass the amending Act.

It appears to me. however, to V)c ontii-ely contrary to
the then existing law, which I understand to bo that both
Judges .should concin* before a person should bo found
guilty of a corrupt practice, and that both Judges should
concur before a candidate was relie\ed under the lG2nd

SOUTH UKNFUKW.

8 5

[uitc

y to
both
)un(1
lonid
)2nd

section, and if thero was a (liflercnco of opinion on the
hittt.-r ([UL'stion thu discjiuilitication continued which wan
what took place in the present case.

In my opinion the respondent was, at the time of the
second election, " incapable of bciny elected," and tlierefore
that the election was void,

It was also uioed l»y Mr. Bethune that if by an Act
passed on 25tli March, lhS+, the respondent was relieved
from the discjualitication under whieh he laboured, if he
was ills vialiiied, that the Act was retrospective, and there-
fore that, although the election had taken place befijre the
passing of the Act, he was then capable of" being a candidate.

As this is a matter of great public importance, I will
set out the section bearing on it at length. I shall, how-
ever, divide it into several parts.

Sec. 48 — To remove doubts, it is hereby declared that it
lia.s been and is, the policy of the election law, and the
intention and meaning of the several statutes in that
behalf, that no election was or is void for any irregularity
on the part of the returning otiicer, unless it appears to the
tribiin.il having cognizance of the question that the irregu-
laiit} effected the result of the election.

There is no doubt that the ibregoing is retrospective and
declares what the law was.

And it then proceeds : "And that no candidate or other
person is disqualitied or subject to any disability or
])enalty for any corrupt practice or alleged corrupt practice
without the concurrent iudniuent to that effect of the two
Judges by whom the election petition is tried."

This alters the law, because by sec. 38 of R. S. 0. ch. 11
tlie ( 'ourt of Appeal had the power to declare a candi-
liate guilty of a corrupt practice, and the operation of this
clause woidd appear to have withdrawi' that power, and
now nothing but the concurrent judgment of the two
Judges by whom the election petition is tried will work a
dis(jualification.

I think, however, it has this effect, that if on some
occasion [)rior to the passing of the Act a trial had taken

B^iP

PUOVIXCIAL ELECTION,

pliicc, aTid tlu' .Tn(li,^'s hoforo whom tin.' trial took place
ditfcri'd in opinion as to the catidiilatc havlnt,' Ix'cn <,niiltv,
H\i'\ tliat snbscipu'ntly tlio Conrt of Appeal hail found him
;.'uiltv, lii^ is for th(! fnturo rolit-vod from discpialiHcation.
Till! word lM'iii'4 '•"'' ''l"it is to saj', that his status was, by
tin- passiuif of tlu! Act now in (puvstion, restored.

It could not l)(! retrospectives hccause up to that time he
liad been dis(jualitied ]>y the sentence of the Court of
Appeal. That this applies to section 1G2 of the Election
Act, and the comlitions ami circumstances therein men-
tioned, as well as to othei* matters in which corrupt
practices or the cons'.e<juences thereof in an}' way fjepend.

It is upon this clause Mr. lietl.une contended the election
Couhl he upheld.

The preceding part of the section, as I have alr"ady
pointeil otit, has no n^trospective i-tfect except so far as to
reinstate the candidate, and the ar'nnuent is itnich stronger
as respects this provision, if tht; l()2nd section had ex-
])ressly recpiireil that both th(; Judges should agree before
the candidate should be relieved.

To give effect to the contention of the respomlent this
Would appear to have been an entire mistake, and that the
law was and is what it ch.'arly was not. The effect in my
judgment is to relieve the respondent, after the passing of
the Act, from the disipialification under which he was then
labourinir, but it cannot be held to mean that at the time
when it was passed Ik? was relieved.

And that in case of an election biung set aside and a
new election had to the same legislative assembly or other-
wise, the new election cannot be avoided by setting up
corrupt acts or practices by the candidate in or during the
fornu'r election, or affecting the same which were not set
up ami proved at the former trial, and so adjudged by the
two Judges at the former trial or by the Court of Appeal
before the subsequent election as by law to involve such
<lis(p)aliHcation, disabilit}' or penalty.

It appears to me quite plain tluiv this part of the section
has no retrospective ett'ect. It has reference to cases of an

SOUTH RENFIIKW.

♦'loctfon ^oinj^, not to elections having been set nside, and
to trials which may arise in consequence. So far from its
l\ivving a retrospective effect the word being is used in the
future, and simply means that if after the passing of tlie Act
i\\\ eh'ction is set aside then the other provisions api>ly.

In mv judgment the respondent was disqualified at tlie
time of the election, and that the foregoing section does not
rrlievo him. It has reference only to any future election.

I concur in tlie judgment just pronounced by my learned
Itrother as respects the claim to seat the defeated candidate.
1 do not think, under the circumstances of this ease, the
eli'ctors who voted for the respondent can l)e said to have
acted perversely, and therefore their votes were thrown
away.

12 — VOL. I. B.C.

PROVINCIAL ELKCTION.

PRESCOTT.

PUO I 'I A' VI A I. EL !£( ' TIO.W

Bkfoue Mr, JusTioK Pattkhson and Mr. Justicb

FliRfJUSON.
L'OuKiNAi., Juh) 341/1, 2:1th, 2r,Ui, <ni(l 27lli, ISSS.

Bkkore thk CoruT of Appeal.

yVtJ(c/(<. — ClilKK JlSTICr, Snt.MitJK, (,'lllKK JrSTK K If AdARTV, Mr. JlISTICK

IJiiiToN, ANi' Mr. JrsTIl K OsI.ER.

TouoxTo, Dcd-iiihpr joili mid SIM, ISSS.
Janiuuji lUlh, IS64.

Alkxandeh V. C'l^xmngham ,Pt'tll!o}iev v. Almert Haoajj,

/'. S'. f). rh. Ill, ■I'")'. i:t7 — Tiviitin I iiii /ml/iii;/ ilni/ —Onmi/if pntrfirrM —
.■ifi' iiri/ — " .]fiiliii'i of ih'Cttirx I'lir till' jiiir/nisp ot' /innii'iHiiif l/ii' vUvlioti"
Trintiii'i -fllifcntti' iHitfr.i — Dalii'K of /)■ /I'l/i/Ri'liiriiiii'i (>[licer a-i to —
rn-fliiularitii-li. S. 0. ch. W, wc«. 94, !)o, 'J7, 100, I41J, 107.

Suotioii l.')7 of II. S. O. oil. 10, fc)rl>i(ls tin- .scllini,' or giving nf liijuor at
liny time (liirini; the polling <lay, iinil(^r a penalty of tine or imprison-
ment, and the same Aet proviiles that any violatinii of that section
d'lring the hour.-i qipninted for pulli.iLr, in a enrnipt praetiee.

Ifi'l'l, (at the trial) th.it a violation of the section (hiring the polling liour.s
hy an agent ot tlie cui'liilate, must he conclusively presumed to have
lieen inteii led corrui)tly to iiiHiience the election.

At the tri il it was found on a review of the evidence that an offer to
brilte whicii hiil not heen carried out, was not |iroved.

//■/'/, on appeal, that the tiniling of the trial .liidges should not l)e dis-
turlicd unless the (.'ourt al)ove w.is convinceil that it wis wrong, and
tliat if iii> mire i.'ould he said than that the evideui-e might have war-
ranted a difleieut eonelusi(ui. it slir)uld not he interfered with.

S. wiio was a politied friend and supporter of the respondent, treated .1
a meeting of electors with the knowledge, though not with the direct
assent of the n^spondent. It was proved at the tri.al that S. w.is a
noisy, talkative in in, employed as a travelling agiMit through the coun-
try ; he h id a het or bets on the election : the respondent saw him at
the meeting, :uh\ h id some couveraation with him in the crowd. .Some
time during the contest, and later than the date of the meeting, he
Went to respoiideuts otiice to make some suggestions, and asked his

PRKSCOTT.

())iiniiin as to tlie ri-snlt, as lie H.iid huiiio irifii waiitt'il to hot with liiin.
\\ hill' tlii'if In- ».iw Haiiu- "iMinpAi^'ii litciatiiro ' mi the tulth-, ami took
siiiiif of it away witli limi, with the asH.'iit nf the ri>*|»'>iitlciit. No cvi
tli'iii't! was t;ivfii tiial lu' t'.iiivasMnl votfiH, ami tln' ri')t|)iiiicli>iit nwori!
that lit' iH'Vcr i;avc liiiii ('X|in'SM aiifhurity t'> caiivaxH or do any tiling
for iiini, anil tliit lie wan nut a man lie woiihl I'liiploy an an agent.

Hi hi, (it tile trial ami on ajipeall that at the lime of tlie meeting S, wan
hiithiiig mule than a volunteer, for wIiohu aeti4 the Mii'iilnte w.ui not
reMjioiiHilple.

S'liilili; wlnre a ('(n-riijit act is committed during an electio.i context hy
nil agent with the knowledgo of the eaiiilidate, and it tiiriiH out that
the iierwoii eoinmitting it wax in faet or in eonteinplatioii of the eUietion
law, the agent of the eaiididate, it is not iiecess.ary that the e imlidate
should, at the time have kiiowle'lge that the person eoinmitting tlio act
in his agent, or even that he Mlimild know smh jtrrson individiially.

77/. /..-;/-/-/,(. A ,•/■// r,M^, 1 o'M. & II. --'TS, and T/i>- Ditntjiiniioii Cum'. 30'M.
\ 11. 101, ref.MTed t> ami followed.

A liiectiiig of s<iiiie 'A^ or 40 elector'* hid assemlded for the purpose of
jironioting the election, hiiring the meeting an agent of tlie respon-
dent Went into an adjoining room with four or live friends and truiitvd
ami WIS treiited liy them.

II' III. liy the Court of Apjieal, not to he. a furnishing of eiiturtainnient
" to a meeting of electors assenitdcd," &c., under section I.">1, I!. S. (».,

'■'■• '0-
/'< /• Osi.r.n, •!. A. — The (|uestion must always l«c. whether the enttirtain-

llleiit ll IS lieeii furiiislu'd to tin; gcii'ial liody of the eK-ctors composing

such meeting, whether licfore. during, or .-ifter the liusiiiess of the

meeting, and wliili' as ,a liody such electors remain togctiier at the pl.aee

of meeting or elscwhen-.

The l)i'puty-Ueturning ( Hlicer in pollii.g tin; vott^s of smiio lifty illiterate
voters, instead of tdiiiig from eich illiterate voter a declaration " that
he WIS nil ilile tf) read." asked each if \u'. was able to read nr wr'ilf, and
having received .an answer in the negative, ni(|uested him to put his
ni.irk to the deidar itioii of illiteracy explaining wli.it he I'oiiceived to he
iti elTei't thus " Vou liereliy sign tli it you ;iie uiialde to read or write
sullicieiitly to mark your hallot paper." Me then oi>enly marked the
liallot piper as instructed hy the \oteriii the ptcseine of hotli eandi-
ilati'S, their agents and the poll <'!erk, all of whom had taken the usual
dedatatioii of secrecy. One witiu'ss also s.iid the coimtalile was in
the room.

//'/</, (at the trial an<l on appeal) that suhst intially there w;i.s no violation
of the priui'iple of siiuret voting l.iid down in the Act, \\. S. (). eh. 10,
and that the votes were not imprivpcrly t.iken.

/'. /• Ost.KK, .l..\. — 'I'here is nothing in the .Act which makes it necessary
fll.it the 1 >cputy- lleturiiiiiic Otlicer should withdr.iw with tli(! .agents of
the ciiidiilites .and the vot'.'r to .another room, or which forhids the poll
clerk or othiir persons l.iwfiilly present, in the polling hooth from remain-
ing there while the voter .iniiounces lor whom he wislu's to vote.

/''(• SpKAi.'ijK. ('..).(). -The illit T.itc Voters were not inish'cl, hut the
conduct fit the Deputy IJeturiiiiig Ollicrr w.is pervi'rse. The m iiiifi'st
policy of the Act is tiiat the votiiu' sh.ill he in all eases as secret as
under the circumst.inces it can lie. It wis not necessary that more than
the three iicrs<iiis iiiiiied in tlie Act hesides the voter himself should he
present : the Depiity-IJeturniii^' Otlic'jr and erne reprcseii'.itive of e.ieli
candidate. The. presence of any others w,is not in .accord.ance with the
spirit .and policy of rhc A-t ami should not lia\e lueii pi'ianittcd hy the
1 leputy- IJeturiiing < Mlicer.

/'i /• HriiiiiN, ,1. A. -Inyoiid the slight mist ike maile hy the Di'piit}-
lieturning (.)llicer in exi>l lining the declar ilioii, thiM'e a|(pe,ars iiotlimg
in the course pursued which Wiwi not warranted hy the Act, there v/oa

fK)

I'UHVINCIAL EI.KCTION.

nil one present fxccpt tlii' |)<'|iiity nt-tiirniii^ Ollicir. tln' lamliilatcH
uikI tlicir iigt'iitH uikI tlif )mi|| clt'ik, all of wlioiii had takiii tlit; oiitli of
HLMTi'cy ('Xi'i'|it till- cmiMtulili', wlio w.ih in iiiiiillii-r | art <it thr rmiiii,

AUIiiin){li tilt' iri't'^Mil.'iiitii'H of tin- I'rpiity-ift'tniin;; iMlicfi' t'onid nut, l>y
tlit'niHi'lvcH, lit! Haiil to liavt: at)<-ct('il tlif rlct'tion, i/mi rr, m lii'tlicr in >'on-
juni'tinn Mitli tlh' )ii'foi't' mentioned turnipt ait \\ liicli w.i. Ii und to Imvo
liern cuniniittcil liy an a^i'Ut of tlir candidate, tlit'y could iindi-r Hui'tinii
I'l'.*, ronjointly Ik- Haid to liavt'doni- ho,

//'/'/, (lit tlir ti ial)lli;it till' ini'j^uiaritii « ill <|nrsti(in wcrr not " illi-ijal prac-
ticcx" u» int'iitioiu'd in tliat m'ution, Imt were ratlxr dtfaiiltH tliaii ai'tn or
practices, and eiitiit'ly niKiinnit'tt'd w itli I'oirnpt practices. Wliat itt nfcr
r»d to in ci'c. ITiK, in ttystcmatic illegality, wlu-tliir anioimtinn to cor
riMition or falling hlmrt of it, to hik li an (.-xttnt that the particular acta
which are proved, may lie reaxonahly conHidcred merely to lie iiirttaiiciis
ill connection with the general synti in of corruption or illegality wli'ch
liaH been |ircvalent during the conte.st.

TiiK |)«'liti()i» contuiiu'tl tlie usual chiir^fcs of corrupt
practices.

The pi-incipal on«'s were those of (1) tliti selHiiy of
liquor durin;,^ the hours of polling on the day of election
\>y one Huulue, an agent of the respondent ; (2) An
alleged oiler of hunlier to build a house uia<le to the peti-
tioner hy one Smith, an alleged agent of the r('sj)oiid('nt ;
(3) Treiting of a meeting of electors hy said Smith ; (4)
Irregularities by ono of the De|tuty-Ret»niiing Otticers in
the manner in which he polled tlu; votes of several illitei-
ate voters.

Hector Ca)ueyon, Q. C, and A. Fenjimtn, for the peti-
tioner.

Jaiiii's Bethmie, Q. C, }V. Johnston, P. 0' Br Ian, and
John MaxiL'ell, for the respondent.

Paitkhson, J.A. — As to charge No. 5G, which is a charge
that Baulne, an agent of the respondent, was guilty of a
corrupt practice by rea.son of the violation within the
hours of ])()lliiig of the j'rovisions of section 157, tliere
are several questions whicli we have to consider and
dispose of

We have no doubt that, as a matter of fact, Baulne did,
upon the polling day, and within th') hours of polling,
sell H(juor to persons, being tho.se persons mentioned in
the evidence ; and that therefore, as far as he personally

I'KKscorr.

was ci)iHi'mt'»l, lie wiis guilty ot" a viuliition of si-ftion 1 ")7,
Hiiil guilty nl" ii nirnipt iniictice.

The priiieipnl inu'stioii is, tliu »|U('.sti(ja whether ujxin
tlif evideiiee ho should hit held tu he the iig(!iit, and
this pinetice to have been couiinitti'd liy an agent of ihi-
iv>p()lident.

We are of the opinion that the evidences which we
ifnther from the examination of tin? respondent hiniHelf
jtrincipally, as well as whatever otleir evidence there is,
makes it obligatory upon us to hold that liaulne occupied
the position of Jigent of the i'es]i(tn(h'nt.

It is clear from what is stated hy the respondent in hi
evidenei' that he relied upon his friends — his friends in the
constituency gi'iierally — to support his election. He speaks
of himst'lf as a candidate; that his candidature was f ced
upon him. lie s;iy^, " I expect my fiiends to support and
elect me." He states that at the meeting at Phmtagenet
a connuitt' ■ was formed, and gives the nanavs of a innnher
of the conmiittee, including .Nlr. Haulne. He states, and it is
ap[)art'nt in fact from the examination generally, that he
expected his friends to W(»rk for him, and those in jiarticular
whose names are ii\dividually mentioned. Whether they
aeliially worked or did not work is nn»^ the poijit I am im-
mediately consiilering. Now, if in the comse of the election
Contest any corrupt practice, that is, actually corrupt, <hme
witli the intention of corrupting an elector to induct;
him to vote for the respondent, hail been committi'ti by
Daulne, it would be impossible to hold that he was not
witiiin the scope of the agency to be attributed to Itim
under the doctrines that {)revail with respect to agency in
election matters.

I do not think it is at all necessary to shew that a per-
son wlio is ilesignated as one of those who.se assistance
the candidate looks for shall have done any particular
acts: shall have taken any particular course : worked to
any partie\ilar extent : in carrying out the agenc}- which
was e(jnstatute<l. The very first act which any person relied
upon in that way does might be a corrupt act, and it would

J)2

rnOVINC'IAL ELECTION.

l)ft an act by an ajjjont just as well as if it was at the end of
ii l()n<; series of acts.

There is a question, iiowever, and it is a question which
was ai'gued by Mr. Bethune, which has possibly caused
some little doubt in other cases, and that is where a per-
son occupying the status of agent, with the widest scope
of authority covering all the incidents of an election con-
test, does an act which has no reference whatever to the
election contest, but is spoken of in the statute ;is being
a corrupt practice. That seems to be one or' those thiiij^s
in the stiitute which it might be diflieult to deal with and
construe with very direct reference to any particular prin-
ciple underlying the provisions.

(considering the matter, ami talking it over, as my
learned brother and myself have now done, it seems to me
that there is a principle that we can apply to it which
removes anj' ditliculty, and will give full effect to the
intention of the Legislnture in j)assing the Act.

Section 157 forbiils the selling or giving of li(iuor in
any shoj> or place of the kind <at any time during the
polling day. That is a provision which was originally
passed as one of a series of ))rovisions foi' the purpose of
preserving peace and good order at elections. It is made
penal, on the part of any one to whom that section ap|)lies,
to give or sell li(pior at any time duiing that day. Then
comes in, howevei', the other provision that an ofieiice
against that section conunitteil within the ])olling hours
shall be a coiTupt practice. Now, what is the proper
construction, the proper force, to be given to that enact-
ment of the Legislature, that the offence within those par-
ticular hom-s shall be a coi'rupt practice ? It seems to us
that that is a declaration, a distinct declaration, that
an act v.'hich is made penal at any time during the day,
is if committed within those hours, to be attributed
to a purpose connected with the election. Wheii it is
said that it is a corrupt practice if conuuitted between
those hours, the Legislature says, in other words, the
act done within those hours is to be deemed conclusively

PRESCOTT.

!i corrupt practice. Tf a corrupt practice it must he a
practice intended corruptly to influence the election, as
that is the meaning of the words " corrupt practice."

Tlicrefore, in making' that particuhir enactment, and
giving that particular effect to the act done within polling
hours, the Legislature seems to havo removed from tlio
Courts the duty of inquiring what was the intention with
which th(? act was done, having attached to it the character
of a corrupt practice, and necessarily therefore giving it
the character of an act intendeil corruptly to intluence the
election.

Treating it in this case as having tliat force, we have
th'^n the Legislature declaring that Baulne when lie sold
the liquor within those hours, did so for the purpose of
influencing the election ; .md whether we would he sp.tis-
fled that that was so, or whether jwe may he satisfled that
he had no such intention, we must take it, as I apprehend,
that the Legislntiue has said that is to be deemed to he
his intention. If so, it was clearly within the scope of
the ngeney which the law attributes to him under the facts
which we have in evidence.

The conclusion that we come to therefore is that under
this oGth charge a corru]>t practice is shown to have been
connnitted by Isidore Haulne, an agent of the respon<lt;nt,
l»ut without the knowledge and consent of the respon-
dent.

Ferguson, J. — As the judgment just delivered has been
the judgment of the Court, it is unnecessary for me to s.iy
anything more than that I concur.

I am entirely satisfied that thn remarks as ma<le by my
learned brother give the proper solution of the matter.

The section of the statute says to the party, you shall
not sell or give. It also says it shall be deemed to be an
act done with reference to the election, whether it was so
in fact or not.

That being mv construction of it, I agree in tiie con-
clusion of mv learned lirother.

<)4

PROVINCIAL ELECTION.

Patterson, J. A. — There were two charges in which
Smith was concerned, wliicl) we reserved for consideration.
One is charge No. 3U, which related to an alleged otter to
the petitioner of lumber to build a liouse, and the other
charge related to the treating of the meeting at Wendover
represented by Nos. 48, 4D, and 50 of the particulars.

With respect to charge No. 30, we are of opinion
that as a matter of fact no otter such as is alleged by
the petitioner was established. As the evidence is given
to us, even on the part of tlie petitioner himself, there
would be ., good deal of question as to whether anything
took place between him and Smith which really conveyed
to him any undertaking upon the part of Smith that if he
voted for or assisted in procuring votes for the respondent
he should receive the lumber in (juestion. Smith gives a
different account of the transaction, and according to liis
evidence all that can have passed between him and the
petitioner was an otter on his part to convey to the respon-
dent the petitioner's otter.

The evidence as to an unaccei)ted otter requires to be
dealt with with a good deal of caution : it should be looked
upon with somewhat greater strictness than in a 'rase where
an otter has been accepted and where anvthing has been
taken by which the terms of the olfer or bribe, or whatever
it may have Iteen, have become dettnitely ttxed, and there is
less reason to apprehend that the parties may not have
tlistinctly under,st(Jod in the same way what t(Mjk place.

We could not find upon the evidence here that the charge
of an otter such as is set up is established.

As to the chai'ge of treating at the meeting, whicli is
represented as I have said by numbers 4JS, 49, and 50,
there is no reasona.ble doubt upon the evidence that the
act did take place as cliarged ; that the meeting there
was a meeting of electors assembled for the purpose of
promoting the election ; and that Smith was guilty of
tlu- statutory ottence under section 151, of providing
drink or entertainment at his expense for that meet-
ing. It also established, as we think, as the fair result

ruKscoTT.

0:>

oi" till- evitlonce, that what Smith diil at that meeting was,
(litnt; to the knowledge of the respomleut. He himself tells
us, and tliere is no doubt upon the whole evidence — he does
nut express any doubt about it on his own part — that
tlir treating that wjus going on at the meeting, whieli was
(lone on both sides, was something the nature of which he
was perfectly well aware of. and which, if he did not aetu-
iilly pai-ticipate, as he may have done by taking a cigar at
ii treat whicli one of his opponents was giving, wjus still a
l)ii)ceeding the nature of which he understooil ver}' well.
lie knew exactly what was going on, and it was not at all
disapproved of by his doing anything to stop it. He tells
u^ that he did hear, as he was leaving, Smith calling up
the treat, as it is called; asking the Evanturel menus
wtll as the Hagar men to come up ; so that the fact of
Smith having violated section 151, and of that being with
the knowledge at all events — I was going to say with the
knowledge and consent, and probably I nnght use that
expression, but I <lo not wish to u.se it in the sense of any-
thing like active participation in what Smith was doing —
hut it was with the knowledge, and without the disap-
piDval at all events of the candidate. Those facts, we
think, are made out beyond aiiy reas .nable cjui'stion by
tlif evidence which has been given.

The important question, the ([uestion which would affect
cliai'ge 80 as well as this, is whether Smith should upon
the evidence bo pioperly held to have been an agent of
the respondent.

The general history that wo have with respect to Mr.
Smith is, that he is a person mi.xing a great deal with
peo]»le, doing so in the pursuit of his calling as agent foi-
the sale of implements and as an insurance agent, fre-
quenting taverns and other places where i)eople assemble
a good deal, talking politics and talking upon one particu-
lar side of politics, not only during election times but at
other times. There is no doubt that he was doing so
during this election ; his own evidenca and the evidence of
13 — VOL. i. E.C.

PROVIXCIAL ELECTION.

otliors hIiow thcit. That l)y itself would not constitnto him
hy any k'gitiniate inference an agent of the cunciidate.

A person no doubt, as is well settled l>v the decisions
under the election law, may be lixed with the status of
a<T<^nt for a candidate, and the candidate niav be made
liable for the acts of a peison as aj^ent whom he does
not know to be acting on his behalf, and in fact of whom
he may have no personal knowledge whatever. A man
may become an agent by being a nunuber of an oigani-
zation to which, as an organization, the candidate has
looked, oi" upon which he has relied, for his suj)port during
an election contest; or lie may l)eeome an agent by being
appointed by one who is already the duly authorized agiMit
of tlie candidate; and so agenc}' may exist on the part of
a person of whom the candidate lias no individual knowl-
edge at all.

He knew Smith in this case ; but so far as the evidence
gCv'S, tlie kiK/'Ni'kd^e that l;e had of ^niith and of tlui
character of the acts of Smith, up to the time that this
UK'eting took place, would not l)e at all siithcient evidence
to esta])lisli any connection of the nature of agency in
these matters l)etween him and the respondent.

The knowledge that he had of Smith, according to the
evidence which he has given here, ought probably rather
to be taken to indicate a ditlerent conclusion ; because
knowing that he was a man talking a gooil deal, some-
what rash ano reckless, which is what 1 gather from the
statement of the resprmdent himself, he was not the man
whom ho would liave selected as his agent or whom ho
would have trusted in that character.

No doubt, as 1 have said, a man may become lialile
for one whom he would not select himself.

What is relied upon to establish agency here are inci-
dents which took ])lace in which Smith is traced into more
direct connection with the respondent.

The evidence with respect to these incidents relates to
two ditlerent occasions on which Smith speaks of having
been pi-esent in the office of the r(spon<lent, and at which
something took place between them.

PRESCOIT.

The responik'nt tells us of one of those, and speaks also
as he thinks of both, fixiiitr u\m of them at a date later
than the election, and t;ivin^' the date of the other as
several days or several weeks, I for^'et which, some timn
at all events, after this meeting- — several days I think ho
said — and that is the only evidence we have as to the date
uf that particular interview.

What took phice at that interview is not shewn with
very much precision. Sndth says, no duuht they talked
about election matters, and the evitlcnee of the respondent
so far agrees. As the responilent puts it. Smith came
there and asked particularly about lu»w the election was
noing, what was his ])rospect, what was his j)robable
majority, teiling him that he had been ofl'ered some bets.

It appeaieil, I think, from the evidence of Smith him-
self that he had lieen betting, not betting in the way in
which betting is used as an instrument of biiliiiy, not
betting in such a way as to make it to the interest of
supporters of the other side to vote for the side on which
Smith was interested, but betting on the candidate he was
supporting.

On that occasion at the respondent's othce, there was
some of what is called "campaign liteiature,"' some of which
Smith took, the candidate alloMing him to do so ; and
allowing him undoubtedly, as he does not deny, with tin;
idea that this would be used to some extent b^r eireulat
ing in this constituency, and also supposing it would be
used in the adjoining county where Sndth lived.

Whether or not those occurrences upon that jnuticular
occasion would be lijld to be sutlicient evidence of agency
is a matter that 1 do not think, in the view tliat we take
at present, wo nre re([uired very distinctly to decide.
1 do not doubt at all, that they are legitimate evidence
going in support of the view that an agency was consti-
tuted between Smith and the respondent; ami possibly, if
anything had been done after that date by Snuth which
came in (juestion in a contest of this kind, the evidence
might turn out to be evidence of a good deal of co_;ency

PROVINCIAL ELECTION.

wliicli the rcsponflent would fiiul it very difficult to get
over u\n>n the qiiestiun of iif^ency. There is nothing, how-
ever, that from the considi-ration we have been able to
give to it, we can propin-ly treat as eviiience shewing that
any agency had existed at an earlier date.

Mr. Bethi'ue has argued tliat, on the ordinary doctrine
of ratification, there was nr)thing that could be ratified by
the respondent by anything he did there ; because in order
to ratif}' what is ilone by a person professing to act in your
behalf, it is necessary that you should know the act which
is the alleged subject of ratification.

I do not think the question of ratification is one which
would arise in the case.

I think the proper argument was the one which Mr-
(,'anieroii advanced, that what took place upon that oc-
casion might be taken as evidence, not that the agenc}'
was then for the first time established, but that the agency
had existed all along, and that this was a recognition of
the existence of the agency, and so that at the time of the
Weiidover nieetinn^ Smith was in fact the airent of the
respondent.

We are not able to take that view ; the agencj'^ as far as
it would be established b}' that evidence, if tiiat evidence
Were held to establish an agency, could not, in our view, be
taken to relate to the earlier date.

There is one case that Mr. Cameron referred to upon this
subject of the olfer to l)ribe, vi;:, the Notik i)i'ulcUescj;
Cai^e, tried by Mr. Justice WilsOii. Looking at that at the
time Mr. Cameron referred to it, it just struck me that a
similar position arose in that case. I do not refer to it
as an authority, f)ut merely as one in which a similar
position arose. The case there was as to whet' "r a bribe
had been offered seriously or in jest, and upon tlie evidence
it was held to have been only offered in jest ; but the same
question arose as to whether the person charged with hav-
ing ottered the bribe, one Stephenson, was at the time he
offered it, at the time of the alleged offer, an agent, although
he undoubtedlv became so afterwards, and under the facts

PRESCOTT.

»•' •■ *»

ill that case, the view taktn was the same that seoins to
us to be the conect view in tliis case, tliat ev«.'U it' Smith
lu'caine an a'jent afterwanl.s, he was not at tlie time of this
meeting in Wemlover an agent.

There is a point in connection with that which, if it
were lield otherwise, or if we should be held to be incorrect
in our view oi' this oue.stion of agency, I tliink we miglit
tv\l)ress an opinion n|)on, particuiaily as a point wliich
has been pressed in argument a go(^d <leal ])y Mr. Betlinne,
nnd that is, when dealing with the question of a conupt
iict being comniitted by an agent witli the knowledge and
consent of the candidate, whether it is necessaiy tliat the
candidate should, at the time, have knowledge tluit the
]i('rson connnitting the act is his agent.

In my view, that is not at all necessary. If a corrupt
act is committed in the course of an election contest vvith
the knowledge of the candidate, and it turns out that tiie
person connnitting it was in fact, or in contemplation of
of tlie election law, the agent of the candidate, my opinion
is that for the purposes of tlie statute it is quite unimport-
ant whether the candidate knew at the time that the man
was his agent, or even knew the man individually.

It was with refeience to tliat consideratitni that I made
the remarks a few minutes ago, as to the jxis^ibility of a
person being an agent of a candidate without the candidate
even knowing the man.

If the candidate sees a man whom he does not know
profe.ssing to do an act on his 1)ehalf, a con-upt act that ho
lias knowledge of, if the man is in fa(;t his agent, although
he may not know that he is committed to him in that
character, or not even know the man at all, 1 think <^he
statute would recpiire it to be held that a coirupt act was
done by an agent and with the knowledge oi the candidate.

There is another view also which we have considered
with respect to this, which I may just as well express,
although I do not know that it beais mateiially upon any-
thing we have this moment to deci<le, and that is whether
a candidate seeing a person doing an act profes.sedly on

100

I'ROV INCI A L ELKCTK )N.

his belialf, tli()nn;li there may have heon no previous aj^ency,
Ity stnii'liiii;" by and not repinliatinjj; it ailo])t.s tlie man,
I'oi" that occasion at all events, as his a!j;cnt.

I retl'i' to this for the ))nr{)ose of sayini; principally that
■\Vf have not overlooked that view of the matter in eonsider-
I'iii;^' the case. My own impression is, althonj^h n.s I liavo
said I do not think it necessary to pron<junce it just
now as a final decision, that if a candidate stands l»y, sees
a |)erson, or hears him, attempt to intluenct; an elector on
lifhalf of that candiflatc; that hiing <lone in a corruj)t
manner hy the offer ol' a hrihe or the connnission of any
other coii'upt act, and Iv allows that to <^o on without
intcrferini:^ or without repudiating^ it, it would Ik^ excced-
injjfly hard for him to escape the imputation of that act
lieinij: done as his a'jrent : he knows of the act hcin*; done
on his lii'half, and lie permits it to be done.

[ do not think it would be fair to apply a consideration
of that kind, however, to the particular ciiTumstances of
this char<j;e for this reason : undoubtedly, as I have said,
the candidate knew that Smith was callini,' up a treat, as
it is called, at that meeting, but then I do not treat that
for the purpose of the , iew that I have just now been
])utting, as necessarily to be attributed to the candidate as
somethin!;- known to him to be done on the occasion on his
liehalf. The statute itself, bv \vhat mav be called an arbi-
trary enactment, nrakes the furnishiiinr of drink or enter-
tainment to a meeting of electors a eoniipt practice, (piite
irrespective of itsl)eing in itself accouipanied by any inten-
ticm to coiTUpt. We have had a immber of cases, on former
election trials, in which the ([uestion of treating as a corrupt
^)ractice has l)een <liscusscd, and in some of which it has
been held that the treating was not a C(^iMui)t practice :
was not done corruptly, becaus(> it was merely something
Avhich, although done to a considerable extent to electors,
was onh" what the man would have done under any cir-
cumstances, what was very habitual, an act which he did
not refrain from iloing at that particular meeting, doing it
as he would have done at any other meeting ; and it

I'RESCD'IT.

101

iration
iices of
[> sjiifl,
at, as
t that

ite as
on liis
arl)i-
ntcr-

itcii-

)rmer

i-iipt

has

tice :

bhinjij

[jtors,

cir-

(li.l

ng it

id it

lias Ixeii hchl that such an act was not done cotruptly.
Ill ciUr'I' cases the haliit of duiug it has not ln-cii hejil
to excuse the act. I am not ])ron()uncing any opinion as
to liow those decisions should liave been, one way or the
(itlicr: hut I alhide to this foi- the pur|)ose of saying that,
what was taking ])lace hero wa;' an occurrence of t'iC kind,
which, as far as one can judge fioin the evidence ami
what one knows and liears of these matters, is what was
likely to occin- whether this was an t'lection mci-ting or
not. This ti'-ating was going on, not as an exceptional
sort of thing, hut as I have saiil what was hahitual ami
what would be almost sure to take place.

Tin statutes undouhtedly attaches to the act the stigma
of corruption I'oithe purposes of the eh-ction law, hut when
we come to coiisi<lcr how it should he really i-egarded with
ivspcct to the i»arties, I do not think it would he lair to the
cauiliilatt,' who nuTely hears that another is treating, hears
one of his friends, one of those whou) he knows to be
favoutahle to his side of politics, calling ii|) |)aities there
at the meeting to treat them, to attribute to him the know-
Irdge for the purp(xse of this section, that this was an act
(lone on his behalf in such a way as to give that the force
of the ailoption of the act.

Upon those groumls we think the agency of Smith has
not bei'ii established, and that therefoi'e the charge of treat-
ing ut the meeting also fails.

The last charge which we have now to dispose ot is that
Contained in the Uth paragrauli of the petition, which
aileges that the (h'puty returning olticer at sub-division
No. 8, in Noi'th I'lantagenet, iii'cgulatly, illegall}-, and in
violation of the Election Act of Ontario, tlid refuse to give;
ballot papers to a large luimber of <luly (pialitied voters at
the election, and com])elled those votei's to declare at the
time of voting for whom they intended to vote, instead of
allowing the voters to mark their own ballot-papers .secretly
as provided by the Election Act of Ontario, wliereby it is
alleged tliat the votes were illegal and void and should not
lia\i' been counted.

102

PIlOVINCIAr, F.LKCTION.

Fii support of tlif cliarj^p a.s to tlie facts n|ion which it is
l>;is(!(l, the cviih'ucc ;fiveii is that of tho ciiiKlidatc Mr.
Kvaiiturt'l, ami of Dr. Miifiiault who was liis a<,'('!it at tho
]n)ll, ami tlu'v >/\vr their evidence Htatiiit; in rather g'-nernl
terms t!iat prai^tices Hoinethiii<^ of the kiml iiidic/vted in
tlie pariiifraph that I liavo just read,* were done at the
poll liy M".. Chamberlain who was the deputy returning
ofliecr.

Tlui evidence given l»y Mr. Chamherlaiti does not agree
entirely with the evitlence given by the witnesses on tho part
of tho ])etitioner, and makes more definite some of tliose
things of which they .spoke rather generally, but the general
facts as we gather them are these :

That a number of voters at that poll, some forty or
fifty or thereabouts, were men that coiUd not read. 1
do not know that any one of those; whose votes are
spoken of was able to read, with the exception of one
man, of whom it is said that although he could not read he
knew something about some of tlie letters or something of
th.at kind, but speaking of them as a whole, the fact is
stated on both sides that they were men who could not read.
With respect to these, the irregularities complained of
are of two kinds, two of the kinds mentioned in the IDTth
section. That section deals with three ditlerent things.
One is failure to hohl the poll at the place appointed ; the
second is non-compliance with the rules in the Act as to
the taking of the poll or counting of votes ; third, any
mistake in the forms contained in the .schedules. Two of
those which are relied up(m now as irregularities are non-

* 8. Tliat at said election the Deputy Keturnint; OHicer at Polling Sub-
«livision Ni^. .3 in the t()\vn.ship of North Tlantagonet, and the l)ei)uty
liotnniing OlHcer at polling suh-division No. 'J, town.ship of I.ongnoil,
irregularly, illegally ami in violation of "The P^leetion Act of Ontario,"
dill refuse to gis-e ballot papers to a large number of duly (jualitied voters
at said election, and conijielled said voters to declare at the time of voting
for whon» they intended to vote, and marked their ballot papers for said
voters, and counted said ballot papers instead of allowing said voter.3 to
mark their own ballot papers secretly as provided in said " Klection Act
of Ontario," whereby and by reason whereof said votes were and are
illegal aud void and should not have been counted.

PUKSCO'IT.

vy\

any

(• »'ii[)li;iiuT with tlic riilfs (•(MitMUHMl in tlu> Act a-, tu tli.;
takiii;^ i)f the poll, anil niistiikr in tin- nsi- ot tlu' t'onns
coiitainoil in the .sclietlnle.s to the Act; or if what is allfj^a'il
is ar;;n(Ml not to conic properly within the term mistake in
tlio use of the forms, it seems it nnist conie within the
other definition, non-comj»liance with the rules as to takin;^
the polls, so that one or other of thosi; purticiilais cttveis
111!' all('<,'e<l irremilaiities in this particular i!is*;inee.

Now one irregularity j>riiicipally dwelt upo', is the iie^-
lict to read to the person coming' to vote the declaration
w liieh the statute reipiires the l)( j»uty lleturnin<;' Utlicer to
(iitity was lead to him, R. S. (). ch. 10 sect. 100 Sclinl. A
form 2+.

Another is the refusal to allow some of those people
who had siju'iied a di'daration to vote hy takin<,f the lial-
l(»ts and markinj^f them themselves.

As tar as w'e can <cather from the evidcnci' Liiven here,
it is ditHcult to see how anything which was done then
call he said to have atlected the result of the election, for
the n-asous which I am now sjoiiiix to mention.

As I have already said, it is not disputed on either side
that not one of these voters w^as a man who could
read. What the deputy returnini;- othcer did, instead
of rea(iiiig and explaining fully or properly the declara-
tion which tlie illiterate voter had a light to make, was
to give his version of the effect of it as he understood
it, and in doing so he undoubtedly according to his own
statement did represent something different from what
the .statnto requireil or what the declaration contained
1 ecause, according to his statement, he tells liim that tlieie
is a declaration that the voter is not able to read or write
HMflieienlly to mark his ballot.

Now, as I pointeil out w hen Mr. Bethuno was arguing
taking simply the case of a person of whom he knew
nothing,! should be inclined to think that diiection was
calculated to mislead, because when a man is told that he
is to declare that ho is unable to write sufficiently to mark
liis ballot, he might very naturally supj)ose tliat marking
14 — VOL. I. E.C,

104

ruoviNciAL i:i,i:(;ti(>n.

the lifillot incnnt vvi'itini,' tlio nniiic of tlic cuiiliilatf' ; and
altliuii^li lie iiiii^Iit Ik' nlilf to truly <li'clai<' that lit' was
uiuililt' tit wiitc! siitlificiitly for tliat, lit; mi^ht Itc nldo to
rt'inl tlic liallot paper and to niakt' lii.s cross at tlio jiropcr
placii inti'lli^fDitly, knowing,' wliat that meant and what he
was (loinj^f; hut a<'(rordin;Lf to tlie facts which we have tliat
conM not have made any difference here, liecause tlic fact
is conceded <in all hands that none of these people could
read. If a liallot paper liad been ]>ut into the han<ls of
ajiy one of them and he had lieen toM to ljo and mark it,
what would liave been done :* The illiterate man who
could not I'ead would know notliin^^ about what was on
the paper or what he was doin;;'.

Then it is said the returning' otiicer liail some (luty under
sei'tion !).') to ni\t' some e\]ilanation. 'J'luit clearly is not any
thini,' wdiich coidd he resorted to under the circumstances wc
have here. Section !>■') is that the d<'j)uty ret'irnim.,' otHcer
may and upon iT(pU'st shall, eithi-i' pei'sonally oi- tliionj.;!! Ids
chirk, explain to the voter two thinu;s : one is the mode of
votinif ; that is, he would have to tell tlic voti-r, "you are
to take this hullot papei', you are to go into the compait-
meiitand mark the cross on the ri<fht oi' left han«h which-
ever it is, opposite the name of tlie candidate ; you arc to
fold the paper in a particular way and hi'ini;' it and deposit
it here."

Now if he liad done that lie wouM liavo e.\plained the
mode of it. Then he was to explain the coloi's in which
the luimes were printed. There was no such rcquircniciit
in this ea.se, that being a matter to bo attended to wlicn
the candidates had agreed upon ditt'erent colors.

Thei'efore all the information which the deputy return-
ing otllcer, even if asked to give it, was Ixjund or at
liberty to give here would not have informed these illitiM-
ate people, who would still have reipiired somebody to
read for them the names of the candidates, and to point
out .Something on this ballot paper that the deputy
returning oHicer was neitlier bouml nor at liberty under
.section 05 to do.

l'i;KS«()TT.

10.'.

Then ai,'ain, lookiiii,' at tlin si'ctioti, ln' was not lioiintl to
(Id it cxci'pt npdii n'(|ii"'st, arnl tlit-r.' is iu» |»r('t»'nn'
of liis lii-iiii^' ri'i|iii'stt>il U) do aiiytliiMi; ; anil so wlu'ii
we nri' told tliat ci'i'taiii of tli'-st* illitcratti voters,
iit'tci" liiiviiii; sii^'in'il the <l('('Iaratioii wliicli, as tui' as tlicy
nndcrstooil it. was perrcctly true, that tlu-v vvcro unaM»»
tn I'l'^id, wlit-n tlicy said : "Oli, lait I can mark my liallot
jiiipfr," it is iiiipossildt! that they could Imve meant any-
thing; nini-e than this: ''If ^'ou or some person else will
tell nie whieli is the name of one and which of the other
niid shew Mie where I am to put my mai'k, I eaji m.irk it."
Tlieic is Tiothini,' to sliew that they could have intelliLjently
marked the hallot paper; so that from what is told us in
that way it is itnpossil)lo for us to say that anythin;^ that
tftok ]»la('e there could liavo interfered with or altered the
actual vote of these uum as far as the (piestiou of secrcfcy
or open voting; was coneerneil ; and as to their havin;^
voted as they did in a «litl'erent way from the way they
otherwise would have voted, it is nothing hut mere eonjec-
turo that we couM go upon in reference to that. What is
argued hy Mr. Cameron is, that those ptM)ple having felt
themselves coerced to vote openly were brought under the
influenc(! of the candidate who was tliere, which niight
possibly leail them to vote in a dillerent way from the
way they otherwise would have voted ; and one man says
that really was the case, or something to that ett'ect.

With respect to that, as I liavo said, we have nothing in
the way of fact or evidi'nce on wh;<h W(! ciin form any
such conclusion. If the argument is, that the election
really was ati'ected by what took place in this way by
leason of the voters lieing inthienccil to vote ilifferently
fiom what the}'' would otherwise have ilone, that is not
the charge whicli is made by the petition. The charge is,
tliat an irreg'ilarity in this mode of conducting the eh^ction
took place, and that by reason of that irn^gularity the
votes ought not to have been counted. Uegarding what as
a matter of fact took place, it is impossible that we can
either say that it was likely that the election was attectcd or

106

PROVINCIAL KLKCTIOX.

tliat it was fiflTectod, or tliat wo would be justified in tindiiM'
except as in i\w form here that what did taUe place ilid
not all'ect the election. Tliat is, it ajipears to us thatthe.se
men were all illiterate men who must have voted, if they
voted at all, in the particular way they did vote ; that
voting in the particular way they did vote they eould not
have voted except under precisely the influences which it
is complaine<l now that they had to vote under ; and that
voting in that M-ay they voted in the only w;'y which,
under the circumstances find iu compliance with tlie
statute they could have voted.

It is said that the rules respecting the taking of the
poll were not complied with in another respect, because
the returning ofilcer marked these ballots sitting at his
ordinary seat and in the presence not merely of the
agents of the parties, but the parties themselves, pos-
sibly also within the hearing of the constable at the
Cither end of the loom.

I do not find anything to show that what is complained
of in that respect was iu any way a violation of what
the Act i)rovides.

The Act pi'ovides for secret voting in the case of all
persons who are able to read and mark their ballots; and
it pi'ovides, for those who are not able, that they may
when certain things have 1)een done declare for whom
they vote, and the returning oflicer niay cause to be
marked on the ballot for whom the vote is given. It also
declares that this shall not be done by the returning
oflicer behind the backs of the agents ; that the agents for
li(jth parties must be present; but that in no way prevents
other par ies from l>eing i»resent. We have to hold that
other persons than the returning oflicer and the agents
are not to be excludetl from that particular vote, they
iiaving a right for other ]»urposes to be there.

It was argued also, and 1 have to notice the argument,
that although there may be nothing in these irregularities
by themselves to afiect the election, and it is quite clear
there is not, still tlie eliect of those might under section

llliL;

of all

;s ; and

iy niny

■vvhoiu

to lie
It also
turning'
'lUs for
rovents
)1(1 that

aifents

^umcnt,
larities

:o clear
section

pREscorr.

107

I.')!), ill i'unjunction with the corrupt act which is found to
liiivc been conunitted by an ULjeiit without tho knovvlocl«jft;
and consent of the candidate, liave a <^reater effect.

Section 159 declares that to prevent the expense and
troulile of new elections in case of corrupt a -ts beinif coni-
mitted without the knowledge of a candidate, if the corrupt
act was of such a tritling character that the result cannot
have been affected or l»e reasonably supposed to have been
affected by it either alone or in conjunction with other illegal
practices, such corrupt act ..hall not avoid the election.

It has been properly conceded that the corrupt act wl'.ich
was found, the selling by Baulne, could not by itself in any
way have affected the election. I liave no doubt it could
not, even though some of the jiersous who partook may not
have actually voted at the time ; but this sectiou 1.5!),
when it authorize>3 the coupling of a corri;..^ act insufficient
ill itself to have affected the election with other illei;al
practices, does not, as I understand it, contemplate acts of
the character of those which are in cpiestion just now,
which .are properly called irregularities merely, and which
coining, as we hold they do, within the terms (*f sectiou
lltj, are defaults rather than acts or [uactices. Though it
is a breach of duty to be guilty of any irregularities of the
kind, T do not think that those are at all intended by the
tcnn "illegal practices" in sectiou '59.

Xo doubt an illegal practice ma}'' be conunitted by a
returning ofhcer if he is guilty of anything like unduo
influence or anything of that sort, as well as by any otlier
per'-on, but that would be something ((uite different from
this mere default in tie strict compliance with the duty
tliat the statute impose.!. Those I do not think are treated
iis illegal acts at all ; I think in their character they are
(lilferent from what is intended by the illegal acts or
illegal practices.

Then I find the term "illeg.ilact" use 1 in at lea.st one
case and probably more in the statute, as for instance with
lisp ct to hiring teams, and I am not sure where else,
and ill .section 197 1 tind nothing of the same meauiuLr in

108

PROVINCIAL ELECTION.

tilt; terms which are used, l>ut those words used advisedly
or used delihei'ately, and repeated almost each time in the
sitiiie sense, "failure," "non-compliance," and ''mistake."
It deals with those three thin^rs. I do not tliink it deals
with them as '' illegal acts." Although they are irregidari-
ties or defaults, they are not illegal ])ractice.s within
section l.')f).

Uut then I tliiidc further, that the moaning of section 1.5!)
is this : one corrupt act conuuitted by an agent, or several
corrupt acts committed by agents, may he of such a triiliug
character or extent as not in themselves to be susceptible
of being deemed in any way to have ati'ected the election.
It may, however, appear that in tlie piosecution of the
election generally there has been systematic illegality,
whether amounting to corru]ition or whether falliiig short
oi coi-ruption, to sncli an extent that the particular acis
which are proved may be reasonably considered merely to
1)0 instances in connection with the general system of cor-
ruption or illegality which has been ))revalent during the
election contest, and I think that is wliat is I'oferrotl to
when in section 150 it speaks of these corrupt acts of
trilling extent as being reasonably supposed to have atiocted
the election, either alone, or in connection with other illegal
practices.

Now, 1 do not think that intends us to add to coirupt
or illegal practices which may be shewn, but which
by themselves could liave no elfect u[>on the election, acts
which in their character are entireh' luiconnected witli
corrupt practices. I think, in regard to the present
charge, that the irregulaiities which wei'o complained
of are so utterly dissociated trom the corrupt {'lactice
which we have found to have been committed by an agent,
that even if the irregularities came within the detinition of
" illegal practices," we could not have treated them in any
way as being pi'acticos to be brou';ht into cumulative
connection with this practice to which the}' have no
relatii 11, and as to wliieh they do not at all indicate a
connuou origin or their (.)rigin in a general system.

illcgiil

Jl'l'llpt
which
n, acts
uitli

Jl'L'.SCUl

luiiiud
1 iieticu
agent,
Lull of
ill any
ihitivc

PUESCOTT.

lOf)

There is just one expression in section 107 whieh I ditl
II, it alhide to, and tliat is the necessity hn- Hndin<,f that the
flection was conducted in accordance with the principles
laid down in tlie Act.

As to tliat we liiive no hesitatioti in finding tliat this
election was conducted in accordance witli the principles
laid down in the Act.

We do not consider that that exjiression " tlie conduct
of the election " refers to the particular irregularities which
are the suhject of this particular charge. It has reference to
tlie conduct of the election generally, and there is no doubt
ill our nnn<Is u|)(;n the evidence that as to freedom ofeh'ction,
u.^ to secret •; ting, and as to all tho.se other safeguaids that
the Act ])oints out, the election generally has heen conducted
in accordance with the principles of the Act.

The particular irregularities are those winch come under
two of these three things which are pointed out here,
'failure," "non-compliance," and "mistake," l)eing either
iion-cuni])liance with the rules, or mistake in the use of
the forms, and have nothing to do with the (juestion nf
the iicneial conduct of the election wdnch we think is that
thai is referred to in this expression referring to the prin-
ciples laid down in the statute.

\\'e therefore decide aj-ainst that charge also, and ha\e
furthi-r to decide merely as to the general re>:ult of the
jietition and as to the costs.

Tli(^ petition is disndssed ; and then under section 1(!0
ef the statute, as a corrupt practice conunitted hy
an ai^ent thouuh without the knowledtie and con-
sent of the candidate has heen estaf)lisheil, costs have
to he dealt with in the same way as they would have been
dealt with l>efoi'e this other clause had heen passed. As to
tliat the costs must follow the result in the ordinaiy way
in contests where a variety of questions are raised. I think
that anionu' the different cases in our own Courts in which
the question of costs has been decided, the same principles
have been acted upon a good deal. lam taking the case
of irtV/(tj;(^ deciiled 1)V Mr. Justice Gwvnne, the Provincial

1M{< )VINri AL ELKCTION,

Election case, in 1S75, H. E. C. 198, ami I think upon that,
j^oni;ral principle we should ileal with the costs in this case.

In that case the learned Judi^e ordered tlie respondent
to pay the petitioner the costs of the trial except as to
certain chari^'cs in respect to wliieh he said both should pay
their own costs, and in respect to others the pt titioner
should pay the respondents costs.

The opinion of niysidf as well as my learned hrotlier
is, that the res|iondent should pa}' the costs oF the
petition and trial, but just to the same extent as if this
charge in respect of Baulne had l)een the only charge upon
Avhich the petition was founded ; and then as to the other
charges which may have been brought against the respon-
dent, and upon which the petitioner has failed, that the
petitioner should pa}- the respondent's costs.

Fkhguson, J., concurred.

From the judgments on these charges, and on other
charges, the petitionei- appealed to the Court of Appeal.

//. Oiirii'mn, Q. C, and M:C trlliij, Q. C, for the appaal
Bethanc, Q. C, ami W, Johadon, contra.

January 19, 1S84. OsLER, J. A.. — On the trial of the
petition it was found that an agent of the respondent had
been guilty of a corrupt practice under section l.')? of R. S.
O., ch. 10, without the actual knowledge and consent of
the respondent, but that it was of so trilling a nature that
the result of the election could not have been affected
thereby, and the election was therefore not avoided.

The petitioner now appeals from the decision upon other
charges of corrupt practices committed by agents of the
respondent, and of certain irregularities alleged to have
been committed by the deputy-retiu'ning othcer, (who was

r:;

the

liad

R. S.

|nt of

tl»!lt

roefced

otluT
tlic

lliavo
was

I'KEScorr,

11)

jilso !iii aijont of tlie icspondi'iit) at poUin;^ sub-cHvisio ii
>,i). ,*), North IMaiitaijonct.

The first charge, wliich is the subject of the ai)peal, is that
ot'aii all('i,'e(l oM'er by one Wm. Smith to bribe the petitioiuT.
Till' only I'videnoe on the eliarge was that of the petitioner
anil Smith. Smith's agency was not aibnitted, but the
Icarneil Judges, upon a review of the evich-nce and con-
siilt'iing tliat the charge was that of an otier or attempt t^)
liiibe which luul not been carried ont, came to tlie con-
clusion that it was not established. I'liey hnvi' not
ivported as to the demeanour of the witnesses under
stetion ()8 of R. S, (). ch. 11, and we are asked to I'eview
tlnir decision upon reading the evidence.

Speaking Ibi myself, 1 think we ought not to disturb
the finding of the trial Judges oji .>ucli a (piestion, unless
we were convinced that it was wrong. My own impres-
t>iun fiom the evidence is, tluit the cliarge is not made out
liiyoiid a reasonable doubt, and it' we could do no more
than say that tlie evidence might warrant a ditl'erent con-
clusion, we should not interfei'e.

The next charge is tluit of a corrujit practice under
section ir)l, R. S. (). ch 10, viz., providing or furnishing
drink, &c., at the expiuise of the candidati' or (;ther per-
son, to a meeting of electors assembled for the [)urpose of
promoting the election. As to this, it seems reast»nably
cli'ar that Smith (the pei-son charged with the attempt to
hrilie Cuiniingham) did treat a meeting of electors held at
Weiidover, on the 21st of Feb'"uary, the <lay after the
nomination. It has also lu'en found thiit he did so with
the knowledge thcuigh not with the assent oi' the i-espon-
dent. The only question therefore to be considered is
whether Smith was an agent.

The learned Judges have held that he was not.

I liave carefully read the evidence whicli bears on this
jiurt of the case, and think it may be i'airly summarized
thus: Smith wa.s an insurance agent, and agent forthesaUt
of agricultural implements. He resided in tl»e county of
Bundas, but the county of Pre>cott was part of his " dis-
1') — VOL. J. K.c.

i_ —

112

riiOVINC'lAL ELKCIION,

t' iet," and in the conise of his Imsincss lie had occasion to
travel thron^h it a <^()0(1 deal. He was sin acqunintMnee
and politieal friend ol the res])ondent, and a nois}-, talkative
man., fond of talkinj^and ar<.fuingaljoiit jtolities in taverns or
stores, wlierever he could get an audience, especially dur-
ing an election contest. He did so during the present
contest, and it was said he had done so in tho course of
former elections in the riding when the respondent was a
candidate. The res];ondent no doubt knew what, his
haliits were in this respect. There is no evidence that he
ever canvassed voteis. He came into the riding, in the
course of his business, ten or twelve days before the
polling day, ;ui<l remained in it until the Saturday
previous. He l)rought with him some political ])ampli]cts^
or ily sheets — " eanniaign literature" as it was called —
which he distributed in the course of his travels through
the riding. He had a bet or bets on the election, and was
}»i'esent a the Wendover meeting. The i-espondent says
he thinks that was the first time he had metSnnth durinu'
the campaign, nnd that he had some conversation with
him, "off and on among the crowd, during the meeting.''
One Murray says he saw him there, " that he was saying
Hagar was going in, talking about the j\Iowat Govern-
ment, and arguing the point with me and others ; Hagar
was then in the room." It ap))ears also, that at some time
(luring the contest, Smith went to see the respondent at
his offiee to make some sv.ggestions as to peojjle he (the
Tvspondent), should see; as he expressed it "there were
some wii'cs I wanted him to spring.' The rt'Spondent
thought this interview was sid se(|U( nt te) the Wendover
meetinij', but it was stronjjiv argued that it must have been
prior to it, and it was much relied upon as establishing
Smith's agency. The learned Judges adopted the respond-
' i.-,'s view of the date of the meeting, and I don't think
-ii; t it is absolutely inconsistent with the evidence. The
pondent's account of what occurred there is as follows :
tbinith came to my otHce, asked me particularly about the
election, how I thouglit it was going. He was anxious for

niESCOTT.

11.}

my opinion as to tlio losult. There wcro men wnntiny-
to bet with liini. l\v is a kind of sjioitini;' man. 1 told
lijm it was going to l)e flosc, lut I expected to win. 1 had
a lot of ' canipaij^n literature' lying on the table, and he
snvs, 'I'm going to take .some of that.' I ."-aid, 'all right,
voii can take '-hat yon like.' 1 knew lie was going
through the county and the next one too. lie tnuk what
1)P wanted. 1 never gave him express authority to canvass
( r do anything for me. He is not a man 1 would employ
as an agent."

If it had been shewn that after this interview Sndth
had canvassed for the respondent, or liad done any other
iicts to furt]' !• his clecticn, and knowledge of his conduct
had been brought home to the res])c>ndent, there would
have been soine ground for argtiing that there was evi-
dence of agency because it might lie said that in such cir-
cumstances there was an inijilied authority to canvass, but
I cannot agree that the doctrines of election agency should
be carried so fa)' as to iix a candidate with responsibility
for the acts of a volunteer " oiatoi-" or suppoiter, merely
because, knowing that he is such, he has permitted him to
take away w ith him, whether for his own n.'^e, or foi' dis-
triljution among his friends, the campaign liteiature
referred to. In the LovOoiidcrrn C((s<\ 1 (J'M. c^' II. :27>S,
Mr. Justice O'Brien said, "1 cannot concur in the opinion
that any su]iporter of a canilidate who chcjose.s to ask
others for theii' votes and to make s]ieeches in his fa\or,
can force himself upon the candidate as an agent."

No doubt if a candidate n quests or peimits a snjiporter
to ju'company him to meetings and to addiess such meet-
ings in his fav(.ur, that may be .'■ome evidence of ayeiiey :
Contnall Coi^c, U.K. ('., .547, at least as to corrupt acts
cojumitted at or in connection with such meetings.

In the Duvtjanvon Cai/r, li OM. &: 11. 101, iSarun
Fitygtrald says, that before a party is made chargeable as
an agent it must be made to appear that he has been
entrusted in some way or other with some material jart
of the business of the election which is ordinal ily perlnrmed

Ill-

l'K()VIN( lAL KLKLTION.

\>y the I'r'uidiilfitc liiiiiscli". Tliat iMitrustinj,' may bo made
l)iit by implication. Then lu; says : " Tiic circumstanous
of each case may tlilfer, but that imi)licatiuii m-ist arist'
from the kiiowleil;,'!; whicli it appears that tlie caiulidatt-.
has of tlic pait which the person is taking' i.i the election. II
that part of tlie business of an election wliich ordinarily
ami properly belonj^'s to the candidate himself be doxio to the
knowled^'e of the candidate by some other person, it
appears to me that that other person is an ai,'ent of the
candidate."

Applying; these authorities to the present case, and oviai
assuming that the Wendover meeting was subse({uent to
to the interview between Smith and the respondent, 1
think we should not be justified in holding the former to
be anything but a volunteer, for whose acts the candidate
is not ri!si)onsib!e. If agtuicy by implication is tt) be made
out here, it will not be ditlieult to father upon the can-
didate the agency of every voluble sujjporter in the riding
who may have seen and talked to him on the subject of
the election. I refer also to 'f/ie Stah'ijbri<l<)e Case, 1 O'M.
k II. 70, 20 L. T. N. S. 7o ; Taunton Case, 2 O'M. & H.
GO ; Jfcreford Case, 21 L. T. N. S. 117; Wclland Case,
11. E. C. per Gwynne J. at p. 1D4.

The next chartie is that of treatinix a meeting of electors
at Scott River. What occurred there, according to the
evidence, was this : A meeting of some thirty-five or forty
electors had assembled for the purpose of promoting the
election.

While it was going on an agent of the respondent went
inti) an adjoining room Avith four or live of his friends,
and there treated and was treated by them.

What the statute forbids is the furni.shing or jtroviil-
ing drink, (.tc, " to anv meeting of electors assembled, »Sjc,"
R. S. 0. cli. 10, sec. lol. A penalty of SlOO is imposed
upon every person who offends against the provisions of
the section. And by the lltli sub-section of section 2, any
violation of its provisions is made a corrupt practice. The
same evidwice must be given to prove the latter, as would
be required to maintain an action for the former.

I'UKsrOTT.

Tt tiiust Iw proved (1) Tliat tlicrc^ \v;is >i iiiictiii^' of
cloctoi'H as,s<'iiil)l<'(l for t1it> purpose! ol' proiiiotiiii; the
eloction ; (2) Tliat tlu> cainlidatc or otlicr jcrson prositlcd
or furnislied drink or otlicr ciitcrtainiiKMit tosudi nicctiiitf.

I may rrffi- to some of tho cases in wliich the set'tioM in
t|ii('stion, or its jircdcccssor lias brcn ronsidci-td.

In the iVo////, uM idilh'sr.r Casr, (l.ST')) II. K. ( '. pp.
oTO, .')<S2, tho present Chief Justice of this Court, (then
Clianeellor) said : " I am not in the least disposed to sanc-
tion any evasion of the law, or to insist upon too riLj;id a
construction of the pi'ovisions of the section. It \V(jnid
indeed be a rare case, if apo.ssible one, that treating should
lie given liteially to a meeting of electors. It Wfis not .so
in the Dnvdux Case, flSJo) p. 20'), to which 1 applied the
Act." In that case there were two cliaiges of this kind.
In th(! first, the treatinj.;- was of a gatlieriiij^of ten oi' fifteen
persons in the bar-room of an lu^tel, near a hall where a
public meeting for the purpose of the election had been
held, about an hour after the meeting was over. This was
held not to be a meeting of electors, the learned ( 'hief
.lustice observinu that there had been no adioniinnent of
the meeting hehl in the hall, and no pre-concerted ai-range-
ment of nu'etin"- at the hotel, but an accidental meetiuLr of
a few persons.

In the .second cliai'ge it was shewn that an agent of
the respondent tieated on nomination day. The whole
report of the case is exceedingly obscure, Imt I infer that
before tlie meeting at the nomination had separated, the
agent in question, one Farlinger, and anotlier i)ers( n
jircsent at the meeting, crossed the stniet to a tavei-n
aliout forty or fifty feet from the place where the nom-
ination was hehl, and there treated all who were in the
har room, ]'ayiiig S7 or S8 for the treat. 'J'he persons
so treated had jirobably been present at tln^ nomination
meeting. All that the report of the ca.se .says as to this
charge i,s, " The treating by Farlinger, Ik; (the Chancellor)
held, came within the mischief of the law, as it was a
tioatinn- of the electors at a meeting of the electors to
promote the election."

PUOVINCIAL KLKCTION.

In til.' Wr^f ]Vr/rini/f<»i Ciw (1.S70), H. E. c. 2;n.
;m M'^i'iit oF till! rt'spondcnt biouj^'lit a jar of wliiskoy to
a imlilii- iiit'i'tiiin; of thirty or forty electors, helil for
tlu' purposi; of promoting the election, an<l just before the
business of the niiuitin;^ be:,'an, he hamled it round among
those jiri'sent. Mr. Justice Uwynru; held this to be, as it
undoubtedly \v;vs, a violation of the law.

h\ the l-:iist rctcrhorou'jh Cum (I.S7")). II. E. 0.
lib"), there hi»d been a public mi'eting of electors at A|)sley,
in the town hall, After the meeting the respondent and
n jierson held to be his agent, went to a tavern near the
hall, and a nund)er (jf the electors who had attended tlu;
meeting went there also. The agent treated them from
about ten at niglit till two o'clock in tlie morning.
Draper, (1 J., said, at p. 2')1: "Another dillieulty has
been suggested, namely, that the treating did not take
phice in the buihling within which the meeting asseml)led,
and that the meeting was in fact over. A similar (pies-
tion arose in the Xortlt Wetitwotih Ciiw, and 1 tljere held
that wlieie a meeting liad been held for the promotion of
an eleetiop, and after the transaction of the business, they
had gone generally together to a neighbonring tavern on
the invitation of tlie camlidato, on whose behalf the nu'et-
ing was held, who there rurnisliod or provided drink or
other cntert.unment for them, it was within the statute."

I do not not see that the Norfh Weafiooi'tk Coie
If. K. L\, p. ;}4.S, referred to by the Chief Justice, lias
l>een rejiorted on this point.

Thei-e are other cases in which there has been some
discussion of the section : Xorfh Viclorid, H. E. C. 2ii'l ;
Hdltoii ih. 28-S (in the headnote only so far as I can
see); Xorlli Onturlo, lb. 'SOi, and Xorl/i (jrcji, ih. .']()2.

Without attempting to lay down any inHexil)le rule for
the circumstances of each particular case as regards the
extent of the treating, the ([uestion must, in my opinion,
always be whether the entertainment has been furnished
to the meeting, that is to say, to the general body of
electors composing such meeting, whether before, during,

Pl{i:SC<^TT.

can

e for
the
iiion,
slieil
y of
ling,

(ir (il'ttT the husinoss of tlu' lut'otint,', anil wliilc, ;i>t a 'lO'ly,
viicli fit rtois i-eiiiain t<)i,'ftlH'r at the placf of iiii-i'tiiii^ nr
clscwlit'i't'. I think there is iiothini,' in the cases I'eally
iiiei insistent with tliis proposition, and 1 take the West
WrUnK/ton ('(isf and the yorlh WcntmorlU ('(if<e as re-
t'tired to in tlie jiidifinont of Draper, ('..!., in the K(i'<f
Piii'i'lioi'niiijli (Jdsr alreaily cited, as iliiisti'at ions of its
apjilicatiiin.

Oraifaiii, if tliere is continuons treatinsj; hy an aL,'ent, of
a I'lW jicrsoiis at a time, of those attending a nieetinij, so
tliat, as it were, the meeting is treateil in detai..ments
there u'onld be no ditlicnlty in liolding that to lie within
tlie seeti<in.

Hilt where, as linv, tlu>re is only the isolated ease of
tuur oi' live persons out of a large nu-i^ting ri'tiring to
another room during the meeting anil treating eaeh other,
1 think it inipo-sihlc upon tlie most lil>ei-al eonstruetion of
the section to say that there has lieen anything like a
furnishing of entertainment to a meeting of eleetors.

There is another charge of treating a meeting by one
\'anbridger. We have l)een referred to no evidence in rnip-
port of it.

The next chai'ge is that relating to the irregvdariti<'s at
polling subdivision No. .S, North Plantagenet.

It appears that some fifty illiterate voters voted at this
sulidivision, all of them being unable to read or write.
Most, if not all of them, were personally known to the deputy

returning officer.

Both candidates were present at the ])oll in this sub-
division (section ID.'i; and the nsual declarations of secrecy
were taken by all who wei'e present.

Instead of taking from each illiterate voter a declaration
in the form 2'-] referred to in section 100 of the i<]lection
Act, ■' that he was unable to read," the deputy returning
otlicer, having first asked the voter wdiether he was
alile to read or write, and having received an answi'r
in the negative, required him to put his mark to the declar-
ation of illiteracy, explaining to him what he conceived to

lis

I'FtOVINCIAL KI.rr'TrON'.

I»< its circct. tlins, "y'lii licrt'hy '^^'^u tlmt vini ;irt' mmbli' to
lead or writ*' siillii-icntly to mark yniir Imllot |»m|K'1"."

'riicrct'nr-i' it) t'oity-iiino instances tin- (Ifputy rftiirnin^'
oHiror openly ni.-irkeil tlie liallot i>apei- fof llie cimilidnte
rinmcd by tli<' voter, in tlie presence of tlie candiilates or
tlieir HL^ents, the poll clerk and it is said a constalih^
l>ein<r also in the room. In one case the voter olijected to
vote opeidy, and said tlint he h;iil siejud the declaration
nndt'r a ndsapinehension of its efrcct. A liullot piipei- was
tlu!n iriven to him niid he voted stMM'ctly.

This votei' thonyh lunhle t(» read or write, had, as tlie
deputy retiinun^'oHicer saitl. some idea of l'.!tters, anti could
lind out the day of the montli in an almanac.

In three or four other instances the vottM's, after having
sie;n(M] the dechiridion, desired to liave the hallot papers
eiv ;i them, and the names of tlie candiilates slicAvn to
iiiem, so that they could retire and vote. This, tlie deputy
r(>turnin;jf ollicer declined to d(», not considorin<j; it his duty.

The evidence does not su|)port tlu' precise alienation in
the ])etiti()n, the real olijections bcini^ (I) 1'hat the deputy-
returning otlicer inaccuratel}' stated the otlbct of the d«;clara-
tion of illiteracy ; (2) That he did not, hcfoie taking it,
explain to the voter that it lu! made it he woidd not he
pernMtte<l to vote secretly; (.'?) That secrecy of proceed-
ings was not observed as fully as it might have been, inas-
much as tl'.e poll cleik and constable were allowed to be
in the room when the balhjts were marked. In other words,
the contention is, that the deputy returning oflicer diil not
comply with the rules contained in thei\ctas to taking of
the polls and the use of the foiins, and (2) That the (dection
was not conducted as regards secrecv of votinir iu accord-
nnce with the principles laid down in the Act: and it was
argued that the election oui-lit not to be .saved under
section 159 since the lesult, looking at the narrow majority
obtained by the respondent, might have been atl'ected by
these so-called illegal practices in connection with the
single act of corruption proved.

PHKSCOTT.

1!(

Sfi'tlon 107 of tlic KIt'ctiitii Act provitlcs that no election

-liiiU Ih' ileclfired inviilKl

l>v reMsuii of a iion-CKin-

plianco with the rules coiitairieil in the Aet as to th,' takinj;
of the \v>\\ ' ' or by reason of any mistake in the
use of the forms eontaine<l in the schedules to ihr Aet, if
it appears (1) 'J'liat the elrei . ii was condnett il in accoi-tj-
aiici? with the principles laid down in the Act, and (2)
That such non-(!ompliance or mistake did not alleet thi^

li'sult of the electicMl.

I do not think it necessary to determine whetln-i' the
default, omission, or ndscondiict of thu deputy ri'turnin;,'
ulKeer com]>lained of is an " ille;,fal practice" within tlu^
iiiL>anin;j; of section I')}), nor Mhether, if thtre had Imtu to
any considrraMe extent, a phdn and oj)en violati'iii of the
princii>le of secret votinif, the election nd^ht not In- srt
aside on the Ljromid that there had been no true fleet ion.

I am of opinion that the oidy irre^^ularity committed
was that which I have already mentioned in connection
u ith the dt'claration of illiteracy, i.nd that suhst uitially
there was no violation of the princij)le of secret voting'.

No douht (he deputy returninj^f otlicei- should mei'ely
liav(; asked the Voters if they were inialile to icid. Askin;L;
ihem if they \sere unaMe read or write ndght have led them
to think that it ^\■as necessary that they should w rite the
name ol' the camlidate for whom they intended to vote, hut
as they were in fact unalile to read and ^et desired to vote,
the conditions arose in which it became the duty of tho
deputy rituiiiinii' oilicer to take their declaraiions and to

mark then" liallots.

e IS nowhere re(|uire(

I t

o e.\

that in such case they cannot vote in seeict.

A mi->take of that kind cannot, as it seems to me, lie said
even remotely to atfectthe result of tlie election.

Then, as to secrecy of voting. The x\ct draws, as I
think, a cleai' distinction between the case of a literate and
that of an illiterate voter. To the former the ballot pajKT
is, after eertain preliminaries, lUlivered: section 1)7. rpoii
receivinj^ it from the dei)Uty returning otKcer he is to " pro-
ceed into" one of the comi)aitnieutH provided for the purjtose
IG— VOL. I. E.c.

120

PROVINCIAL KLECTION.

and there mark it in accordance with the directions con-
tained in form 13 in schechile A. Havinir done so he is to
rctiDMi it to tlie officer folded up in such a manner as to con-
ceal from every one the name of the candidate for whom he
has voted, and it is then, after having been identified,
<k' posited in the ballot box,

.Section 94 enacts that " the deputy roturni tig officer shall
take all necessary precautions for concealing, and shall
conceal, as far as possible, from all persons present (includ-
ing the poll clerk and agents, as well as other persons) the
number pi-inted upon the ballot paper delivered to any
person, &c."

Section 9.5 enacts that " h'; may, and upon request shall,
explain to the voter, as concisely as possible, the mode of
voting, and the colours in which the names of the candi-
dates are printed on the ballot paper."

An entirely diU'erent method of procedure is provided
in the case of the illiterate voter, by the 100th section,
which enacts — I quote only what is material to the present
entiuiry — that in case of any person claiming to be entitled
to vote, who makes a declaration that he is finable to
read "the proceeilings shall be as follows ": " The deputy
returning officer shall, in the presence of the agents of the
candidates, cause the vote of such person to be marked on
a ballot paper in the manner direcfed bij such person, and
shall cause the same to be placed in the ballot box."

Reading this section with sections 94 and 95 and form
13, it seems i)lain that the latter only apply to the case of
the literate voter who, with or without instructions as to
the mode of voting, that is, the manner of marking the
balk laper, can mark it in entire secrec3\

Witli the illiterate voter on the other hand, secrecy, at
least within the Avails of the polling booth, is not attain-
able. It is deemed right that his ignorance should not
deprive him of the franchise. Yet it would almost inevit-
ably do so if he was left to mark a printed ballot in secret.
Therefore he nuist in some way openly indicate by
voice or gesture for whom he wishes to vote, and if he

PRESCOTT.

121

It form

ase of

,is to

ky, at

Ittain-
ll not
Inevit-
gecret.
10 by
if he

makes tlic declaration of illiteracy the returning officer's
duty i.s to proceed nnder section 100 in taking the vote.
To gnard against mistakes and avoid any imputation of
unfairness, he is required to mark the hallot pajier in the
-presence of the agents of the candidates by which I under-
stand that they are, if present, to see him do so ; V)ut there
is nothing in tlie Act which makes it necessary that he
should withdraAV with them and the voter to another room,
or which forbids the polling clerk or other person lawfully
present to remain 'there while the voter announces for
whom he wishes to vote.

Such secrecy as is possible in the circumstances is pi'o-
vided for by the 14Gth section, which, un<ler a sevei'e
penalty imposes the obligation upon every officer, clerk,
and agent in attendance at the polling plact;. If it be
urged that the illiterate voter is the one who most needs
the protection of the ballot, the answer is, that the Act has
expressly declined to extend it to him.

I may refer to the Halton Cdse, II. E. C pp. 2S:},
.S86, where the deputy returning officer allowed the voter to
state for whom he voted before taking from him the decla-
ration of illiteracy.

I am of opinion that the votes in (juestion were not im-
properly taken. That the election was, so far as ajtpears
conducted in accordance with the principles laid down in
the Act, and that the mistake of the deputy returning
officer did not affect the resvdt.

The appeal should therefore be dismissed.

SpRAGCiK, C. J. — I agree in the conclusion arrived at by
my brother Osier, that the appeal of the petitioner to this
Court should be <lismissed, and I concur in what he has
said in dealing with the ditfrreut cpiestions presented
for our decision, with one exception. That exception is in
i-elation to the taking of the votes of illiterate voters by
one of the deputy returning officers, /. c, in polling sub-
division No. 3, in North Planta<j:enet.

122

PIIOVINCTAI. ELECTION.

My loarnc'l Vtrothcr lias (lescribed what took place on
those occasions ; and one cannot Imt In- strnck with the
looseness and carelessness with which the deputy retuni-
inf otHcer took these votes. The form of declaration
given by the Act is as clear and simple as it is possihie to
ho: "I A. B., <jf, kc, do hereby declare that I am un-
able to read. " One would think it .scarcely possible to
go wrong in such a case; but this deputy returning officer
wa.s perveise enough to substitute something of his own:
"You hereby sl(j)> (an absurdly inajipropvitite word) that
you are inialile to read oi- Avrite sufficiently to mark youi-
ballot paper." 1 think from the evidence that these illitcr-
at<^ voters were not mi.sled by the form in which thrir
votes wert' taken ; but still the conduct of the rrturning
officer does, in ni}' judgment, call for, at least as nnich com-
ment as I have made upon it.

In regard to the voting of this class of voters and of
others referred to in section 100, viz.; tho.se claiming to
vote Avho are incapacitated by blindness or physical cause
from nuiiking theii- ballot })apers, I cannot (piite agiee
with my brother Osier that as to them tin; statute con-
templates open public voting. The voting cannot, in their
case, certainly be as secret, as in cases whei-e the voter is
able to read, and is not incapacitated otherwise from mark-
ing his ballot papers ; but still it appears to me that it is the
manifest policy of the Act that the voting shall in all cast-s,
in those ca.se.. as well as in ordinary cases, be as secret, as
under the circumstances, it can be.

Sections 1)4 and 07 cainiot indeed be apjilieil literally
to the clas.se.s of voti'rs referred to in section 100. Tliose
deal with voters vpialiHed by education, and not dis(|ualih\.'d
by anything from exercising the franchise intelligently.
Any reason of policy in favor of their votiuL"" being given
in secret applies with at least a.s nuich force to the classes
enunu'rated in section 100 as to the rest of the voting com-
munity.

It was not neces.sary that any more than the three per-
sons named iu the Act, besides the voter himself .should be

PJ{t:SCOTT.

123

])resent ; the deputy returning officer liimself to take tlie vote ;
jiml one n^presontative of eacii caivlidatc to see tl)at it was
fairly and propei-ly taken. Tiio presence of any other per-
sons was, as it appears to nie, not in accordance with thi^
spirit and policy of the Act; and should not liave bi'en
priinitted by the returning officer. That he h;id jiower to
exclude all but those I have named by retirin<^ with tlu^
voter and an agent of each candidate into a compartment,
such as is provided for tlie use of ordinary voters, or in
some other mode, can, I think, admit of no tloubt ; and that
it was his duty to do so appears to mo to be also clear.
The statute might certaiidy have been more explicit, but
I think he should have acted in accordance with its spirit^
if in taking the votes of illiterate voters he had gone as far
in the direction of taking them in secret as under the cir-
cumstances it was possible for him do.

The taking of these votes in the way that they that
they were taken was, I think, an im[)roprioty, but the
statute is not explicit as to who shall not be present in
the taking of these votes, but only as to those who are to
be present, and in what was done there was nothing done,
or omitted to be done, that could avoid the election ; even
serious irregularities mi'dit occur without their haviu'^
that etFect. My brother Osier has quoted section 11)7
upon that point. They do not fall uniler tlie category of
corrupt practices, or even of illegal acts, or of anytliing
else which it is declared shall avoid an election. It is not
necessary to decide whether an edection may in any case
be declared invalid by reason of any of the irregularities
and on\issions enumerated in that section, where it is
found that the election was not conducted in accordance
with the principles laid down in the Act ; because the
words used must mean that the election as a wdiole, taking
it altogether, was not so conducted. It cannot mean that
the election can only be saved from being avoided, in case it
shall appear that in every instance and in every jiarticular,
the election was conducted in accordance with the prin-
ciples of the Act. The tirst omission referred to is evi-

124

rUOVINCIAL ELECTION.

(lence of this. The hoUlinc^ of a poll in every place
np|)ointed for that purpose, is really a matter of principle,
inasmuch as the failure to hold it operates to the dis-
franchisement pro hue vice of the voters entitled to vote
at that ])lace, and yet the omission to do so does not per se
avoid the election.

It must also appear that " such failure, non-compliance,,
or mistake," as is specified in this section, did not affect
the result of the election : and that, I think, is shewn in
this case. I do not think T can usefully add anythinjj; to
what has been said hy my brother Osier and by the rota
Judges upon that point.

It is only upon the points that I have indicated that 1
at all dissent from what is said by my brother Osier in his
judgment; and in that I express only my own individual
opinion. I agree in his conclusion that the appeal shouM
be dismissed, with costs.

Burton, J. A. — 1 agree with my brother Osier in holding
that the appeal should ])e dismissed and generally with his
reasons for arriving at that conclusion.

I wish to add a few woids with reference to the irregu-
larities in taking the ballots. The point argued before us
was really not that stated in the petition, which was in
these words:

"9. That at the said election the deputy returning officer
at polling sub-division No. .S in the township of iNorth Plan-
tagenet, and the deputy returning officer at polling sub-
division No. '2, township of Longueil, irregularly, illegally
and in violation of ' 'Jlu' Election Act of Ontario' did
refuse to give ballot papers to a large numl)er of duly quali-
fied voters at sai<l election, and compelled said voters to
declare at the time of voting for whom they intended to
vote and marked their ballot papers for said voters and
cttunted said ballot papers instead of allowing said voters
to mark their own ballot papers secretly as provided in saiil
' Election Act of Ontario," whereby and by reason whereof
sai«l votes weri-, and are illegal and void and should not
have been counted."

his

lan-

sub-

ijally

(lid

luaii-

[s to

Id to

and

.tt.'r,s

Isaitl

'ifof

not

PKESCOTT.

12:

And this is further borne out in the particuhirs, where
tiie names of several voters are given as appearing on tlie
voters' list as entitled to vote and wliose votes were refused,
but the learned counsel for the petitioner appears to have
ar«iUod before the learned Judges on- the rata as he did
before this Court, not that any voter was really excluded
from voting, but that by the mode adopted a ci^rtain num-
ber of illiterate voters were compelled to vote openly in-
stead of secretly as the law requires, and that as the
respondent was a person carrying on business in or near
this })artieular polling sub-division, it may be inferied that
thi^se persons were thereby influenced to vote ditl'erently
from what they Avould have done had the voting been

SCHTCt.

The leai'ned Judges have found, as a matter of fact, that
there was no evidence wliich would justify them in finding
that it had .any influence upon their votes, and as I under-
stand the evidence and the learned Juilges' finding upon it
that all these men were persons unable to read.

The deputy returning oflicer misinterpreted his duties
under the Act in re(iuiring the a])plicant to declare that
he could neither read nor write, and in explaining to him
that the paper he was signing was a declaration to the
eflect that he was unable to read or write suthciently to
mark his ballot paper.

Mr. Cameron contended that section 97 applied to all
voters, literate and illiterate, but this is, 1 think, clearly
not so. That whilst in the ease of literate voters, the hiw

care

fulb

vides that whilst such a voter is in the

balloting compartment for the purpose of marking his
ballot paper, no other person shall Ije allowed to enter
the conijiartment, or be in any[p()sition from which he can

,'serve tlie mode in which the voter marks his ballot
paper ; it is equally careful in guarding the interests of
an illiterate voter, or one incapacitated by blindness from
marking his ballot, l>y providing that it shall be marke(l
by the deputy returning officer, but in the presence of the
agents of the candidates, so that no advantage may be

T2(;

PROVINCIAL ELECTION,

taken of him. The voting is necessarily in such a case open,
to tliis oxtoit.

To hfive allowed those parties to I'etiie to the compart-
ment and mark their ballots as in the case of otlier voters,
would have heen a clear breach of duty on the part of the
returning officer, and would have led to the very di^iculty
which the statute intended to avoid, viz., an unintelligent
marking of the ballot. Nor do I conceive that in every
such case it was intended that the returning officer and
the candidates or their agents, should retire to the com-
partment for ,hat purpose. Beyond the slight mistake
made b^' vi ,\itv retiu-ninij: officer in explaininjx the

declaration, ; ;,. pears to be notliing in tlu; coin-se pur-

sued which was not warranted l)y the Act. There was no
one presenL if we except the constable who was in another
part of the room), exc<'pt the returning officer, the candi-
dates and their agents, an 1 the poll clerk, all of whom had
taken the oath of secrecy.

It is obvious, I think, wdien we read section 197, that an
irrefjularitv of this nature, even if I am wronjj in holdinir
that what was done was regidar and proper, cannot aflect
the election. The non-compliance with the rules contained
in the Act, as to the takinp; of the poll, or the mistake in the
use of forms re([uisite to have that effect, must be so great
as to amount to a conducting of the election in a manner
contraiy to the princii)le of an election by V)allot, and so
extensive as to satisfy the tribunal trying the case, that
it did aflect the result of the election.

It has been observed that this section of the English Act
which is similar in this I'cspect to our own, is an en.act-
m^t\t e.r ah a III (ante caiitela declaring that to be the law
applicable to elections under the Ballot Act, which would
have been the law to be ajiplied if the section had not
existed, and that it followed that for the same reasons
which would prev(Mit the Courts holding the election void
at common law, it nuist hold it not voiil under the Statute:
]\'(H>ilu'ard V. Sarsons, L. R. 10, C. P. 7.*33.

rilESCOTT.

127

The learned Judges liavo declared in most unmistakable
tciiiis that this irregularity did not affect the rusult, and
th.To is nothing slievvn to warrant us in interfering with
that conclusion.

I agree, therefore, that the appeal should bo dismissed.

IlAGAliTY, C. J, Q. B. D. concurred.

G. A. B.

17— VOL. I. E.C.

128

PROVINCIAL ELECTION.

WEST SIMCOE.

PRO VINCI A L ELECTION.

Before Mr. Justice Patterson and Mr. Justice

Feuouson.

Raurik, Atiijml 13th and I41/1, 1SS3,

Before the Court of Appeal.

PrvHent. — Ciiikk Jtstick Spragok, Mr. Jlstick Buuton, Mk. Justick
Morrison, Mr. Jistjck Osi.kh.

Toronto, September l[)tli,'lSS3.
October 6th, 1S83.

James Bedford, retitUmer, v. Orson J. Phelps,

Ilespovdent.

Form of petition — Chnrtje Incbulid In par/lciildrn tint not in petition — Xi>
pou'cr to annnil jielilion — Trentlmj—^ On acconnl af beimj about to
rote or h(irin<i voted' — Aijinnj — Sjureh bt/ coni/idate ot eonvrntlon -
Implii'd (ijipolnlment of dtli'ijatcf! o.s ai/i nt.-i — A(jint actruij i/iki aijeiit —
A]>/)el/<itr L'iiuit — Scllinij lii/uor on jwUhttj da;/ — J'. S. O. eh. !(>, srr.-:,
/.•7.7, lf,7, JoS, imi, iv'l—li. S. O., t//. '//, sec. ..', sub-mc. JD, sec. D,
.sec. 43.

The petitioner, in liis particuLars (lolivered herein, cliaifreil the respondent
with jjivinj,' or cauHiiij,' to be given nu'at, drinU, and refreslinient to
Voters on ptjlling day on aceonnt of tlieir having voted or being ahoiit
to vote, being a eorinpt jiractiee under !!. S. O. cli. 10, sec. lo.S. 'I'he
petition itselt, liowever, nieiely eliaiged tliat tlie reisjjondent " l;efore,
during, at, and altir the said eUiLion, was by liis agents and by otlier
persons <in his behalf guilty of corrupt practices as defined by the
Controverted Elections Act of Ontario," J{. S. O. eh. 11, sec. 2.

If eld (at the trial) that tiiis foini of petiti(jn was objectionable being
hardly reconcilable with the intention of tiie Legislature in re(juiring
petitioners to lile an atlidavit with the j)etition stating that they have
reason to believe and do believe the statements contained in the
petition to be true in substance and in fact, and, moreover, the charge
being only by reference to a statute, the atlidavit in such case could only
be intelligently and honestly made by one who had informed himself of
the provisions of the statute and apjtlied to them some definite construe-
tioii, and iu any event the deponent would only be swearing to his

IJSTICK

H. JusTici:

lELPS,

■lition — X<>

(lllOIlt ti>

VI iifioti

iKi aijnit —
lb, .sY(',-i.
', sec. 'J,

jii indent
linient to
ing about
r.;{. 'I'he
l.L'fdie,

liy otluT
d by tho

ble being
re(jiiiring
tbcy have
in the
he chnrge
onld only
nisclf of

■d

WKSTSIMCOE.

129

construt:-
ig to his

own coiistruetiou of the statute, without .stating what tiiat eonstruction
was.
//(/(/, further, tliat ina.sniueh as "ciiiiui;t jiracticea,'" so far as^ detined at
;dl liy K. S. (). e. II, were lieelared to mean " biiltery, treating, and
iiiidiu^ inHueiiee, or any of sueii olbiiees, as detined by this or any
(pllier At t of tlie LegJHhiture, or reeogni/eil by tiie eoninion law of the
I'arlianieiit <if I'lngland," and .ilso the violation of eertain sjieeitic sec-
tioiiH of It. S. (). ch. 10, among wliieh sec. !,").'{ wa.s not ineluded, and
inusninih an aets j)rohibited by .see. I.'il} wen^ elearly not corrujit
)iraitieeH under the eomnion law of l'arlian)ent, nor i.s there any detini-
tion of "tre.'iling" in any of the Aets of our Legi.slature, ami tlierefore
untiling to show th.it it eovers oll'eiiees under see. I'lJ, and therefore
inasnmeh as there nnght be t'xtemled upon the faee of the petition every
ollciiee eoverid by the desi'ri|ition or delinition of eorrupt [iraetiecs eon-
taini'd in the ( 'ontro\ erted I'leetions Act of Ontario, and yet there
^^(luld not be amongst them any eharge under sec. l."iH ; tin r /on-, the
iietitiiiner eould not suci'eed in avoiding the eleetioii upon any eharge
under see. I"i3, as he sought to do here, unless allowed to add ;t byway
of amendment to his p(titi<in.

(Ill the eross-ajipeal of the pet itioner on this jioint no judgment was given
the disposition of the respondent's ajipeal rendering it neeessary to do so.

Ihlil, hiitlierat the trial, thatsueh amendment could nut be aUowed, for
It.S. (). eh. 1 1, see. i(, snilieiently sinews that the Court has no jnrisdictiou
to allow sueh ;in amendment, notwitiibtanding see. '2, sub-sec. I, ;ind«ec.
4.'{, of that /\et, as does also the reijuireuient of an allidavit under
see. 11.

Miniihv. r.otrlii/, L. ]{. C. V. inn, followed; L'r E'hdkm for lli< Kl,r.
ti.rni lHrisi„n'ol' tin- (.'iniiili/ of MoiiiL; 11. K. C. lot, .'}'J ('. ('. It. 117,
(listingui.shed.

It a)i|ieared in the evidence that at the place of polling the respondent's
tirni had a liousi' in connection with tlieii' mills, where their workmen
were boardid, and wiiere the respondent himsi'lf had rooms. A .short
time belore the election, Mrs. U. , who had formerly bein housekeepcl"
ol the sail! house, had ln'come ;enant of it, or was allowed to occupy it,
.Old have the use of the furniture, and was )iaid a certain sum per week
nr month for each m;m boarding there, and a sum per day for casual
lioarders, and she was in this position at the time of the election. ( *ii
pulling day, 11., .a nephew and partiierof the ns))ondent, who sjicnt the
iljiyat the polling place, told voters that if thi:y went to the said board-
iiij; house they could warm themselves and would find dinner if they
wished it, and meat iind drink was accordingly I'aused to be given to
the voters at the boaiding house by H., who was ckaily the respond-
ent's agent tiiroughout.

Jlilil. (at the trial) that the voters having come to the j.lace for the ]iur-
pose of voting, and that being their errand there, and the electi<in being
tiie occasion on which the proxision was made and the hospitality
extended to them, the act in ((Uestion was done on account of each man
>o entertained ' having voted or being .ibout to vote,' and in as mnch as
it was impossible to say that the result may not have been allectcd by
the above oiler of hosiiitality, (K. S. O. eh. 10, see. It'/J,) the election
Would have been void by reason thereof under sec. 1,")8, hail the matter
been projierly charged in the petition.

//'-/(/, however, that the evidence did not shew that the corru])t act wa.s
committed with the actual knowledge and consent of the respcmdent,
and therefore he had not incurred the penal consetpiences of K. .'^. <).
ch. 10, sec. KJl.

'I'he petition in this case further charged that one If., as agent of the
respondent in violation of II. S. O. ch. 10, sec. ]'u, sold or giive drink
at his tavern within the linuts of a polling sub-division on jxilling day,
which by H. S. O. ch. 11, see. "J, sub-sec. (>, is made a ""coirupv [(rac-

1:30

PItOVINCIAL ELECTION.

tice." It fi])iK'art'(l tli.it II. wa.s i>ri'.Mt!iit, iiiid had actod a» a deleyatfl ,ii
the convent loll ot iijuusiiit.itivn ilt'ioriinis, wliurcat tlio n s|ioiidi'ii:,
was iioiiiiiiati'd. Thi' hitter did not undeitaku a personal canvass, or
aiipoinl any partic'id ir ]persoiis oi' .as.soeiations of per.sons liis agents
tor till' luiipose of (;ariyMin on the contest, lint at tin' s lid convention
he made a s])eech intimating' that he exiiected his friends to work fur
liini.

Jlfl'l, at the trial ami hy the Court of Appeal, (Mrirov, .1. A., disseiitiie.')
th d this constituted an .appointnn'nt liy him of evttry one of those wiiu
constituted the convention as his a^ent for tin' ]iur((os(; of the conti st,
and no proof of acts done hy the persons thus addressed and reco^niztil
hy the candi<late, was necessary to estahlish the agency, and a.s II.
undoulitcdly dill sell the liipnir as ulh'ged, and iis this corrupt act w.i^

not shi'wn to lie of such trilling nature and tixtent as t mie within

1!. S. (>. eh. 10, sec. 1.")!), the election nnist hedeclired void under see. 1,'iS.

J'fV I'aitkkson, .1. A., and Kkimmsos, d., (at the tri d), the (|uestioii of
agency is one of fact, and must he decided in every case upon the cir
cumst.uiccs innriediately in (pnstioii.

I'd- I'.MiKU.soN, J.A., and l'"Ki:i;rs(PN, .1., the ohject ami purpose ui
11. S. (). , ch. 10, sec. 1')'.), do not rc(]uiie anything in the shape of au
attempt to estimate the nundtcr of voti's which i' in he shewn or sur-
mised to have liueii allected hy the eorruiit act in ijnestion, and tn
li.ilancc that against the actual majority. Although, no douht, the
Wold "trilling" must he (.'onstiiicd in each ease with some reforeme
to the majoiity, particularly when considering tin; extent of the eoi-
lupt acts, the (,'ourt is not i.'alled ufion to enter into a i/Uiitii scrntiny
for the purposes of this section.

/'(/■ .Si'iiAijiji;, (_". .1, (). — When we tiiid these two things concur, an act
that comes within the designatimi " coritipt practice," and that the
doer of the act is an agent for the candidate, we are not at lilterty te
to say that the act was done in order to jtroniote the ohjects of the agent,
and not in onler to promote the interest of the candidate, that, thou;:li
true it is the act f>f the .agent, it is not the act of the agent, i/iia agent.
It lieing an act which is prolitahli; to the doer of the act, and the makiiiL,'
of the [iroiitheing assumed to he the motive of the doer of the act, can-
not dissociate the act from the (dcctioii.

yV/f l.iuciilii t'li-^e, II. I'j. (.'. ;>;)!, comiiienteil on ; The Ilarmrli C((<c, 'X
U'.M. it II. (in, clistingnisheil

Per Si'iivcfiK, ('. d. (). — The power of saving an election under W. S. ().
ch. 10, sec. l')!*, should he e \ercised very cautiously, ami a /'cu-//o;-i hy
the Jndgi;3of the Appellate Coui't where the rota dudges have dec'ine<l
the case to he not proper for the application of the power given by this
section of the Act.

No fori, al appoiiitinent or any particular woi'ds are lUHiessary to consti-
tute agency, and less ])ositive evidence of jippointnient or recognition
and a<lo[>tion of a delegate to a party conveiitiou as an agent is re
(piired than in the ease of one not a delegate.

Pf;- liiRroN, .1. A. -Even if II. 's agency generally for canvassing and
assisting in the elections were estahlishi'd in this case, he diil not stand
in the relaticui of agent in respect of the matter eoin[)laiiied of. The
only evidence was that Ic solil liquor for his own purpose untiir a
mistaken idea that he had a right to do so, and there was nothing
whatever to shew that it was done in connection with his character a.s
agent. V>\\t in fact the words sixikcn hy the res]ioiident at the con-
vention to the delegates did not constitute them his agents.

Pi r r>ri:T(iN, .1. A. — It is only for those acts of the agent which are done
by him whilst acting or profivssing to act within the scope of his duties
tliat the candidate is responsible. It is contrary to all princi]ile to hoM
any jjcrsou allected by the act of au agent, unless it is shewn that the
act was done in the course of the emidoymcnt, and within the scope of
the authority, although it may be in abuse of it.

I)
1

s
tl

io
\v

lelcgat(^ at
•(■s|i(iii(li'ii;
Miivilss, or
his agents

LlOUVCIltillll

work fdi-
(lissentiiiL-'l

tllOSl! wlin
llU (-Ollti >t,

ri;o>giii/f.|
illlil :i.s II.
qit M't w 1^
MIR! witiiin
er sec. l.")S.
i|iu'sti<>ii pI
loii the cii-

imriMiHf III'
hipo of ,111
■wii or sm-
nil, and til

(loullt, till'

(^ refereiui-

01 the eoi-
ni scrutiny

jur, ail art
il that till'
t lil.crty ti>
' the agent.
l;vt, th(iUL:'i
'I'l'i agent,
tlie iiiakiiiL;
10 act, can-

h Ca.<c, :<

■r H. S. ().

li'ortiiiri liy

ive ilci'Tlifil

en Ity this

to consti
recognition
bout is re

Issiiig anil
not staiiil
1) of. The
le mill T :t
lis nothing'
laracter as
It the coii-

hi are done

Ins <

liitie

l)le ti> hoM
III that the
.scope i>!

WKST SIMCOE,

i:;i

TkI.s wa.s a piititiuii presented Uiulei' (lir rotitunelleil
Klectit»n.s Act of Ontario, by Jaiue.s BeiU'onl, in respect to
the election for tlie electoral district of the West iJidir.j;
i.f tlie county of Siincoe, lield on Ffbruary iTih, ISS.S.

Till' pftition set ont that the jietitioncr was a voter at
tlie .said election, in which Orson J. Phelps and ( irorgo
Molieily were the candidates, and Oison J. I'hrljis was
ijcelai'ed duly elected : that the said Or,>on J. Phelps
liclnre, during, at, and after the said election was by hini-
.self and by his agents, and by other jier.sons im his iM-liiilf,
;;iiilty of corrupt practices as defined by the ( "ontio\ ertcd
Klections Act of (.)iitario : that se'veral ))er.s(iiis not cntitli'd
re vote voted for- the said Phelps : that ecitain \otrs i'oi'
the said Phelps wei'(^ obtained for him by corrupt jirac-
tices ; and alleged other matters not necosai'y to nifiition
here, and prayed that it might be determined that the
.-aid Phelps was not duly elected, and that the .said
.Moherly was duly flectevl.

On .Inne 5th, iMSo, the petitioner was ordered to deliver
{■articnlans.

The i"emainin<i' facts of the case aird evidence adduced
ajipear in the juilgintnts.

The petition was tiied at Pari'le, on August I.'itiiand
14tli, 18S.'3, before Pattei.son, J. A., and Ferguson, J.

McCdrtlnj, Q. C, and Straf/i)/, for the petitioner.
Under section 1 ").S, Pi. 8. 0. ch. 10, no (juestion ol the intrui-
tion arises: The lUnlrn'ni Case, I O'.M. tVj 11. I I-'), [•22: Imp.
17-lS Vie. ch. 102, .sec. 2.S ; The \\',illu,</fnn/ Cusr, 1
UM. & 11. ;■)(!; The JAchj'ieJd di^c, ib., 22: The Xurfk
Victoria Case, W. K. C, 071, TO-S, TOo. TIk; change in the
lioarding-house iir Septembei' or October last, did iiot
make Mr.s. Peatoii the proprieti'e.ss of tlu' jilace. She is
still a .servant, and the change is in tin.' niodt; of payment.
She Could not have taken other lodgers to the exclusion (^f
the mill hands of Phelps tJc Co. Could Phelps have been
ignorant of what was going on ? If he was cognisant of
what was evjinir on his status is affected. We refer to the

i:{2

PROVINCIAL KLKCTION.

Taunton Cane, 1 O'M. \- 11. 181 ; Thv Bliu-hhnrn dm; \\
IJKS: The. North Ontarkt Cisc, U. K. ('., .S04; Tin' North
Wnif worth Cow, il.., \W.<, ; The. Coniirall Case, il>., ')-f7 ; The,
Host Xorthini,h"ihi,i<l Cace, il)., 577; Thr North Grof
(.'(ise, il)., .S(i2 ; The Nhujitra Case, ib., o(IH.

lielhiit:e, Q. C, and Lount, Q. C, for the rospoTulciil.
As to Hurl xt's acts, we disputes tlu; a;,M'ncy. Them is iio
cvicicncc of his hoiiig a inomltor of the association :
Welland Case, H. E. C, 187. A coiiuiiittct' finishes its
(hities when tlie nomination is made. Ic is clear, nj< it
over, that what Ilarlier did conid n(<t liave afi'ecti'(l ti.i-
election. We say tlieve has been no violation ot .section
lo.'i. The Enn^lish cases do not tend to shew that the
words, "on account, Szc," mean nothint^: The liodmin ('asc,
1 O'M. & H, 1 17 ; The Tamwovth Cane, 1 O'M. ^ H. 74;
The Coaiittj of Lorlh Case. 8 ib., 101. As to the dinners,
they w» ic not given on acconnt ol' the voting. The din-
ners were given on acconnt of good feeling for neighboins
who were manifestly in need of refreshment. They w<'iv
not given by Hannnil, but by Mrs. Beaton ; and whatever
was done was without the knowledge or consent of Phelps.
See The Gle,)!/an'>j di-^e, H. E. C, cS ; The Klngsloit,
Case, ib., p. G'2') ; The North Middlesex Case, ib., o7<i ;
As to the desired amendment of the petition, it cannot bt
allowed. Tlu" time for filing a petition is limited. The
power of amei\dment cannot be meant to be included by
the .section [R. S. O. ch. 11, ,sec. 2, (1,)] stating that tlu'
(Jonrt shall have the same power as on the trial of an
" ordinary cause." What is being tried is the petition
itself. Again, the affidavit cannot be amended. It is
clear there is no jurisdiction to make such an amendment:
Maude v. Loivley, L. R, 9 C P. 105 ; Aldrldge, v. Hurst, 1
0. P. D. 410.

McCarthi/, in reply. Such offences as that under sec.
153, are dealt with !)}• the English cases fvS " treating :'
The Norwich Case, 1 O'M. & H. 8 ; The Cheltenham Case,
ib., 02 ; The Walllnyford Case, ib., 56 ; The Carrick-
Fergus Case, ib., 264 , TJte Bodmin Case, ib., at p. 124.

('(IXC, \\\,

'}„• North
■>i7 ; Tlu;
rth Gn;i

s|M)H(l(>nt.
lero is iiM
<()(;ifvtion :
iiislios its
.'ar, 111* !•<•
'L'ct<'<l tl,i;
of sectii)!!
that the

^ II. 74 ;

o dinner^,
The iliu-
t'itjhhonrs
rhey were
whatever
o\' Phelps.

h., ';i7<i ;
miiot hi.

d. The
hided hy

that the
al of ait

petition
It is
.'n(hnent :
Hard, 1

mder sec.

reating" : '

uin Case,

Carrlck-

\). 124.

WKST SIMCOK.

133

llai'liev was ttt Stay nor, and anmn^rst others was requcHtoiI
to put his " slionhlor to the wheel," I'irc. How lio went
there lias nothin;,' tu do with ';ho argument.

Pattkuson, J. A. — The petitioner, in i^'ivin^' partienhvrs
under the Ju<lj,'o's orch'r, has stated as the first charge of
(•ornipt praetiees, the givinijf or caiisjULf to he ;^nven meat,
drink, and reiVeshinent to voters on pollinj^ day, on aeeount
i)i tlieir having voted or hi'ing about to vote. The names
of several voters are given, and the charge is made against
tlie responihnt personally, as well a.s against pers(ms
alleged to liave been hi.s agents. This is a eliargt; unth'r
section I'^.S of the Election A.ct.

At the trial it was t)bjeeted that the ofl'iMice is not charged
in the petition. This was eontestcnl on the part > '' the
petitioner, and we were also asked on his behalf t(» allow
un iuaendinent of the petition, if that were held to be
necessary, to let in evi<lenco of the charge. Without de-
ciding the objection or dealing with the application to
amend we heard the evidence of both parties. It ap-
peared that at Plu Ipston, where the poll for polling
sub-division No. 3, of tlie township of Flos was hidd,
the respondent's firm had a house in connection with
their mills, where their workmen were boarded, and wliero
the respondent himself had rooms. The establisliment
had until recently been conducte<l for the firm by a
house-keeper, but at the time of the election, and for a
short ^ime before that, it had been on a ditle'rent foot-
ing. The former house-keeper, Mrs. Beaton, had become
tenant of the house, or was allowed to oc(!U|)y the house
and to have the use of the furniture, to which .she liad
added some more, and was in adtlition paid a certain
amount per week or per month for each man boarding
there, and a sum per day for casual boarder.s.

The poll was held in the office of the mills, which
was a short distance from tlu loarding-house. There
was a tavern in the village kept by one Marley, Mr.
Ilammil, a nephew of the respondent, was his partner, and

134.

PROVINCIAL ELECTION.

had the active charge of the husinos.s. On the jiollin;^'
(lay he was l)n.sy at poll No. 3 *soiuotiines acting as
scrutineer inside the office, and sometimes being outsi.to
seeing voters, armngiiig to have absent voters sent for, and
genei-ally doing wliat the emergency required. Amongst
otlicr things he hospitably announced to voters that if
they would go to the boarding-house they could warm
themselves and would find dinner if they wished for it,
an invitation of which a number of voters availed them-
selves. There is some question, upon the evidence, as
to who furnislied the dinner. Mi's. Beaton says she did,
and Mr. Hammil says so too. He says that when he went
to the l)oarding-house to ask Mrs. Beaton to send lunch to
the office lor hinisrlf and the others who were engag('(l
there — viz., the (h'puty returning-offieer, the poll chM'k,
and the scrutineei's of both candidates — Mrs. Beaton
s!),id to him that if there were iuiy prople there from a
distance, he might tell them she would have dinner for
them if they came, and he only convej'ed her message.
There had been polls held at two municipal elections at
the .same place, an<l on both occasions vote's had received
the .same hos{)ital)i(' entertainment. Those elections liad
occurred wliile Mrs. Beaton was only house-keeper. The
evidence leaves no doubt with us tliat tlie proper eun-
ciusion of fact is that the meat and drink were cause(l
to be given to the voters who dined at the boarding-
house by Mr. ilannnil. We do not entirely ailopt the
account of how it was done niven I)v Mrs. Beaton and
Ml'. Hammil. There are dillerent cii-cumstances, relating
to the time when people were spoken to, and the hoius
when they found diinier ready or being prepared ; and
tliere is the fact that the de[)uty-i'eturning otHeer took
\ipon himself, from whatever umlerstanding he had, to be
the moutlii)iece for tiie invitation to sonu> of the voters;
and there is the fact, which the evidence seems to show,
that the invitation, as given, was not given as that of Mrs.
Beaton; and thei'e ate other considerations also, such as
the absence of any attempt to show why the burden

WEST SIMCOE.

135

should have been assumed by Mrs. Beaton, or allowed by
her lamllurd to be so assumed; and the presence of plenty
oi' evidence to support a claim, if she should make one,
for payment for the provisions; all of which throw grave
doubt upon the accuracy of Mr. Hammii's account of the
matter. We hold that the entertainment was caused to be
given by Hammil.

Nothing need be said as to Hammii's agency, although his
agency all through the contest is abundantly proved, because
1)11 the occasion in questicm, the respondent who was him-
stdf part ot the day at Phelpston, and actually voted at
that poll, left everything to Hammil.

Then, was the entertainment given on account of
the voters having voted, or being about to vote .'' The
charge is not bribery or purchasing votes by the induce-
ment of the dinner. No actual corruption, or cori'upt offer
addres.sed to the individual voter, is involved in the change.
It is merely an act which is made, under the circumstances,
ilUgal, and as to which our Provincial Act goes further
tiiaii the English law or that of the Dominion, by declui-
ing it a corrupt practice. We have, therefore, to find i'or
the words " on account of," &c., a significance which will
satisfy the statute without doing violence to the language
itself. We think that the voters, having come to the
place for the purpose of voting, and that being their
errand there, and the election being the occasion on which
the provision was made and the hospitality extended to
thcTn, we must hohl *^liat the act was done on account of
each nuin so entertained "having voted or b<;ing al)()ut to
vote." It has been strongly argued that this act which is
made by section In'Sa, coiiu])t practice has not been shown
to have been committed with the knowledge and consent of
Mr. Phelps himself. I confess it is a ditlicult matter to
avoid a feeling of surprise that it could have escaped his
knowledge. Yet it is the case that, however forcibly we
might be inclined to think the evidence ])ointed to bis
knowledge and consent as the proper inference, it would
after all be inference only. The only thing approaching

18 — VOL. I E.G.

136

PKOVINCIAL ELKCTION.

direct evidence on the point is that of two men — Hastings
!unl Lavery — to the effect that they entered the dining-
room when Mr. Phelps himself was at the table, and were
told by him to sit down and help themselves. They do
not (juite agree in details, and were not very satisfactory
witnesses, and they are contradicted by Mr. Phelps, not
perhaps very decidedly as to the circumstance (»f his hav-
ing seen them in the lOom, but as to the very material
point of the time when they were there, as well as in some
details, as e.. q., when Hastings says Pheli)S' was taking liis
lunch when he and Lavery came in, whereas Mr. Phelps
says he was ill and did not take lunch. But all they prove at
most woultl be that he saw two men get meat who were not
his men or regular boarders. The essential fact of the
reason why it was given them would still be left to infer-
ence only.

Now, if the petitioner can maintain the giving by
Hanimil the agent, the election must be avoided under sec-
tion Ih'S, because it would be impossible to say, in order to
bring in the saving effect of section 159, that the result
may not have been affected by the offer of hospitality on
the part of the respondent to all voters who came to that
poll — for that was the character of the invitation — par-
ticulai-iy when we are told that the lespondents whole
majority in the riding was only 35, while the majorit}'^ at
this poll was 79. Therefore what would depend upon the
personal charge against the respondent would be his dis-
qualification under section IGl. This is a result so highly
]»enal in its character that we ought to be satisfied by
very clear evidence before finding the charge established.
We have, as aarainst the inference we are asked to draw
from the petitioner's evidence, the express denial of the
respondent himself, su])])orted by the evidence given by
Mrs. Beaton ; and there are circumstances to be considered
on the same side — one of these is that in the early part of
the day the respondent was not at Phelpston, only arri-
ving there between eleven and twelve o'clock, which is the
time fixed, if they fix any time, by Hastings and Lavery

WEST SIMCOE.

1^7

M-lien thoy sny they found him finislung his lunch. Upon
the whole we think we shoiiM be wrong if we decided
upon til is evidence that the eorrupt act was committed
with his knowledge and consent. Our finding will be
that it was comniitted b}' his agent W'ithoiit his knowl-
e(l<re and consent.

Let us now consider the preliminary objection. First,
we have to see what the petition alleges. The charge is
"that the said Orson .). Phelps, l)efor(', during, at, and
after the saiil election was, by hiuiself an<l by his ageiits
au 1 by other persons on his behalf, guilty of corrupt prac-
tices, as detineil by the "Controverted P]lectiitns Act."
These are very sw^eoping words, hardly reconcilable, as it
strikes me, with the intention of the legislature in i-cqnir-
iug petitioneis to file an affidavit with their petition,
stilting that tliey have reason to believe, atid. do believe,
the statanients contained in the petition to bo true in sub-
stance and m fact. The circumstances mu.st be very
exceptional in which a petitioner can believe, upon reason-
able grounds, that before, during, at, and after an election
corrupt practices had been resorted to. Such circumstances
may exist, but so far as wo may be permitted to judge from
evidence adduceil before us, whatever groumls there may
have been for referring corrupt practices t(j the day of the
election, there was no justification for tin,* atli lavit so far
as it related to the other periods. Another grave objec-
tion to this form of petition is suggesteil by the re«|uire-
metit of the affidavit. When the charge is made only by
I'eference to a statute, in place of describing the acts or
classes of acts attacked as corrupt practices, the affidavit
cannot be intelligently and honestly made by one who has
not informed himself of the provisions of the statute and
applied to those provisions some definite construction,
which is what few petitioners would claim to have done ;
and even if that were done the deponent would be swear-
ing only to his own construction of th(» statute, without
stating what that construction was. Whatever purpose
the affidavit may have been intended to serve by way

l.'iH

I'ROVINCIAI. ELKCTION.

of a cliock upon recklessness in nuikiiig- e]iary;os or in
Hlin;T petitions, must V)t' to a great extent, ii: not alto-
•^etlier, frustrated when this goneial form of cliarge is
adopted.

We have, however, now to (ieal with the charge as we find
it, and in order to understand its scojie we must look at the
deHnition of corrupt practici's contained in the (Contro-
verted Elections Act. The reference intended is to .sub-sec-
tion G of section 2, of R. S. 0. ch. 11, which contains a defini-
tion of the tt'rms " Corrupt Practices,'" or " Corru|)t Prac-
tice," as used thi'ouixhout that Act. It is inaccurate to
speak of the definition as a definition of corrupt practices ;
it is only a decl ration that the term " Corrujit Practices,'"
when employed elsewhere in that Act, shall have the
meaning which the suh-sectiou attributes to it. Strictly
speaking the Act contains no definition of corrupt prac-
tices in the sense in which the petition uses the words.
But without applying a criticism which may be objected
to as too narrow, ami regarding the class of practices,
and not merely the term, as the subject of the defini-
tion, let us see what it embiaccs. It shall moan, the sub-
section declares, " bribery, treating, and undue influence,
or any of such offences, as defined by this or any other
Act of the Legislature, or I'ecognised by the common
law of the ParHament of England ; also any violation of
the lolst, lo-tth, or loOth sections of the Election Act ;
ar.d any violation of the l.")7th section of the last men-
tioned Act during the hours appointed for polling."
Section lo3 is not specifically mentionecl ; therefore if
the acts which it forbids are embraced in the definition,
we nuist fiml them covered by the terms " bribery, treat-
ing, an<l undue influence, or any of such offences, as
defined by this or any Act of the legislature, or rocognisi'il
hy the connnon law of the Parliament of England."
The definition is similar to that contained in the Impe-
rial Pailiamentary Elections Act, 1SG8, 31 & 82 Vic. ch.
125. It is not contended that the acts prohibited by
section 153 were corrupt {)ractices undei the connnon

WKST SIMCOE.

i:}!>

law of Parliament. Bribery is defined in the Election Act,
Tv.S. 0. ch. 10, sections 149 und 150, and embraces sin'eral
tilings which at common law were not bribery. Undue
intliience has its detinition in section 155. These sections
do not declare the offences of bribery or undue influence to
be corrupt practices. That stigma is in terms attached
to them only by the interpretation clause which, in the
Elections Act, is similar to that in the Controverted
Elections Act, R. .'^. O. eh 10, .sec. 2, {a) I do not know
that any acts have been declared to constitute an offence
culled "treating" under the laws of this Province. The
Don.inion Elections Act, 1874, 37 Vic. eh. 0, following
the Imperial Corrupt Practices Prevention Act, 1854, 17
k, 18 Vic. ch. 102, sec. 4, contains in section 04 a decla-
ration that a candidate who commits corrupt acts of
the SI) me character as those forbidden by our R. S. O.
ch. 10, sec. 152 — which represents 39 Vic. ch. 10,
sec. 1 — shall be deemed guilty of the offence of treat-
ing. Our Act does not so name the offence, but declares
it to be a corrupt pracLice. The word " treating," therefore,
would seem to have found its way into .sub-section G,
of R. 8. 0. ch. 11, .sec. 2, by inadvertently following the inter-
pretation clause of the Imperial Act or of the Dominion Act,
without considering that while treating is defint^d by the
A(;ts of the Parliament of Great Britain and of Canada,
it is not defined by an Act of the legislature of Ontario.
But if we had a definition of treating similar to that
contained in the Acts of the Pai'lianients, it would apply
to our section 152 and not to 153. The force of the
words " or any of such offences," does not extend the class
" bribery, treating, and undue influence," it merely applies
tli(! term " corrupt practice" to any of those offences,
having, as I understand it, nearly the same effect as the
substitution of or for and would have, as if we read that
" corrupt practice" shall mean bribery, treating, or undue

('() See also 47 Vic. cli. 4, sec. 2. (0) and 49 Vic. cb. :}, sec. 1, (0).

Hkp.

140

PROVINCIAL ELECTION.

influence, us defined, &c. As 1 construe the sub-section,
wt^ n»inlit extend upon tlie face of the petition every
oHence covered by the description, " bribery, treating, and
undue influence, as defined," kc, without having amongst
them any charge under section 1'),*].

The petitioner, thei'ef'ore, cannot succeed upon the charge
tuider tliat section, unless he is now allowed to add it by
way of amendment of his petition.

We are asked to allow the amendment under the power
which is conferred by sub-sec. 1 of see. 2 of R. S. 0. eh. 1 1,
the Controverted Elections Act. In that sub-section the ex-
|)ressiou " the Co\wt," is to mean the Court of Appeal ; and
it is declared that that Court shall, sul>ject to the provisions
of the Act, "have the same powers, jurisdiction and author-
ity with reference to an election petition and the proceed-
ings thereon, as the Court of Queen's Bench and the clerk
of the Crown and Pleas in that Court would have respec-
tively if such petition were an ordinary cause within the
jurisdiction of that Court." The Court of Appeal would,
under this declaration, have power to amend, and under 11.
S. 0. ch. 11, sec. 4y, the judges trying the petition would
like a Judge ni Nisi Fruishii\e the same power, unless
there is something in the provisions of the Act to restrain it.
Such a restrictive provision is contained in the 9th section,
which I'etpiires the petition to be lile<l within twenty-one
days after the return, unless it questions the return or elec-
tion upon an allegation of corrupt practices, and specifically
alleges a payment of money or other aet of briber}- to
have been eonimitted by the mendjer or on his account, or
with his privity, since the time of the return, in puisuanee
01' in f'urfherancL' of such corrupt practicLS, in which case it
may be presented atany time within twenty-eightdaysaf tor
the date of such payment or acts committed. I shall nut
attempt to elaborate the reasons for giving effect to this
resti"ictic»n as against the jurisdiction to allow the amend-
ment, because it hap]>ens that in the case of Maude v.
Ltndey, L. R. 9 C. P., j). IG"), the subject is very fully and
very ably dealt with by the eminent Judges who decided

WEST SIMCOE.

141

that case, anrl who hold that the jnrisrliction now appealed
t() did not exist uniler the statute they were dealing with,
whieli ours follows in all tlv; i)articu]ars which now come
in (piestion. I shall read some passages from the judg-
ments.

Lord Coleridge, C.J., said, at p. 171 : "I am of oj)inion that
this rule should he made ahsolute, on the ground that the
learned Judge had no jurisdiction to make the amendment.
That is the only question hefore the Court, for, if it is a
matter of discretion, we do not as a general rule interfere
with what the Judge has done. I therefore' for one would
decline to expni^s any opinion of what my brother Pulloclc
decided as matter of discretion. I think the learned Baron
had no discretion in the matter. This was a petition
presented against the return of a councillor under the Cor-
rupt Practices (Miniicipal elections) Act, 1S72, 35-J3G Vic.
ch. (50. In dealing with it we must be governed entirely
by the provisions of the statute. The statenieni in the
petition, as it originally stoo<l, was, that ' the said James
Lowley did personally,' [or 'that the agents or agent of
the said James Lowley did, with his knowledge and con-
.sent,'] ' retain and employ persons who were included in
the register of said [north-ward] of the said borough as
burgesses for i^ayment aiul reward at the above election as
canvassers for the pui'poses of the said election, wheieby
the election of said James Lowley was void.' The order of
Pollock, B., was to enable the petitioneis to add, in the
5th and 6th paragraphs, after the said ' ward ' the
words ' and other wards.' * * * Thus, tlicre
being, as T before observed, two classes of offences
included within the words of section 7, the petition as
presented specified one class, and as amended both classes.
The question is whether the Court or a Judge luui juiis-
diction to make such an amendment as that. Subsec-
tion 5 of section 21, which deals with the jurisdiction of
the Court, is as follows : ' The Superior Court shall, sub-
ject to the provisions of this Act have the same powers,
jurisdiction, and authority with reference to an election

142

PHOVINCIAI, ELEvTfON.

pi'tition ai)(l tlu' |>roceccUn;Ts thereon as it would have if
the petition were an ordinary cause within its jurisdiction.'
It may lie taken, thert-t'ore, that if not limited and restraine.d
by tlu! A(!t this Coui't would have power to amend the
petition. But 1 am of ojjinion that the words, 'subject to
the provisions of this Act,' do limit and restrain the power
of the C(jurt, and prevent the exercise of the jurisiliction
souijht to be exercised in this case. The second subsection
of section 18 of the Act, which prescribes the time within
which a petition shall be presented, enacts that 'a peti-
tion shall be presented within twenty-one days after the
«lav on which the election was held, luiless it complain of the
election on the ground of corrupt practices, and specifically
allege a payment of money or other reward to have been
made or promised since the election by a person elected at
the election, or on his account or with his privity, and iu
pursuance or furtherance of such corrupt practices, in which
case it may be presented at any time within twenty-eight
days after the date of the alleged payment or promise,
whether or not any petition against such person has been
previously prtisented or tried. The enactment is distinct
that the petition must be presented within twenty-one days,
except in the one specified case of an offence not discovered
since the election, but which has taken place since the elec-
tion ; and in such case the petition may be presented at any
time within twenty-eight daj-s, not after the discovery of
the olience, but from the taking place of that which consti-
tutes the offence. That is extremely strong to shew the
intention of the Legislature that, except in the specitically
excepted case, the petition must be presented within twenty-
one days after the day of the election. Then does the intro-
duction of the additional allegation make this in effect a new
petition ? It is said that it is merely expanding and making
more plain that which is already expressed. But that is
not, in my opinion, a well-founded contention, because the
petition as originally framed charges only one of tlie
offences pointed out by section 7, and as amended it charges
both. To allow such an amendment, therefore, would far

hnve if
diction.'
jtrain«;<l
Mn\ tlic
bject to
e power
sdiction
ItHt'ction
within
'a pcti-
fter the
in ot'tlie
'cifically
ve boon
ected at
, and iu
n which
ty-eight
promise,
las been
distinct
ne dayjs,
covered
he elec-
at any
J very of
consti-
low the
jificall}'
iwonty-
le intro-
ptanevv
laking
tliat is
Inse the
I of the
charges
uld far

WKST SIMCOE.

14:j

exceed the jurisdiction given by section 21, subsection 5.
We are nnich iudebte<l to Mr. Teniiant for his vi ry clear
mid able iirguniciit, in wliich he lias bronglit to our notict;
dtluT provisions of the Act which all tend to the same
Cduclusion. He points to the provision that the petition,
signed by the petitioner, shall be presented in the pre-
scribed manner, and that the ofiioer sh dl forthwith setnl a
copy to the town clerk, and that the town clcik shall forth-
with i)ublish it, as affonling a strong reason for contending
that the L3ifislaturo contemplated that it should be once
for all ascertained what the |)etition is, and that when (mee
for all ascertained there should be no amendment. He
idso calls attention to subsection 3 of section 18, which
rciinires the petitioner to give security for tin; costs of the
petition, and suggests, and with great justice, that a
surety may f.urly say that, seeing oim specific offence only
charged, and beinij satisfied that that charge would be
made out, he was content to enter into the recognizance ;
but that if the allegation in the petition is afterwards
allowed to be altereil, he may say that, if the charge hnd
been so framed originally, he would not have consented to
become such surety. That seems to me to be a just and
Well-grounded argument. The respondent has a right to
know once for all within the twenty-one days what are
the precise charges wdiich he has to meet, and may then
destroy any documents or vouchers he may possess that
might have reference to any other charges. Mr. Tcnnant
also pointed out that after the expiration of the twenty-
one-days it would be too late for any one else to present
a fresh petition; and that to allow a |»ctitioncr to amend so
as substantially to make the amended petition a fresh one,
would be conferi'ing upon him a privilege which no other
person could possess. That seems to me to dispose of the
case."

Keating, J., shortly expressed his concurrence with Lord
Coleridge. Denman, J., who had hesitated, explains that
he had come to the same opinion ; and Honyman, J.,
makes these observations : " I am of the same opinion.

19 — VOL, 1. E.C.

1 (4

PROVINriAL KI.ECTIOX.

'I'hore is notliiiiff in tluf Act or in tlio rules framed in pur-
suance of it to warrant this amendment. The 7th secition
recjuires the |)etition to Ik; presontcd witliin 21 days after
the election. ]Iero the petition was presented in time,
chargin<,' the employment, as paid canvassers, of persons on
the register of burgesses for the North ward of the
horough. After the expiration of the 21 days the peti-
tioners seek to add a new charge, viz. : The employment,
as ])aid canvassers, of persons who are on the register of
burgesses for other wards in the borouyh. I think that
cannot bo allowed. Suppose a petition to allege bribery
only, could the petitioner be allowed afterwards to add
a charge of treating ? or, suppose a qui tarn informer sues
for one penalt}', would he be allowed to amend by intio-
ducing two or three more ? I entertain a strong opinion
that no .such authority exists."

We have also been referred to the case of Ahh'idge v.
Hurst, I C. P. D. 410, where the .same doctrine is held.

In addition to these reasons, which are entirely apposite
to our statute, we have the requirement of the aflidavit
Avhich must be filed with the petition, and therefore with-
in the twenty-one days, and which cannot l)e made to
apply to a charge not contained in the petition as filed.

We have been also referred to a case in our own Com-ts in
which an amendment was made at tlie trial, similar in
])rinciple to that which, it is now urged, we have no
jurisdiction to make. It is the case of the Monde election
tried in 1S71 before Mr. Justice Gait : II. Iv C. 154. That
learned Judge made the amendment, reserving amongst
other questions for the Court of Queen's Bench, the ques-
tion of the power of the Judge presiding at the trial to
amend tlie petition. The decision of the Queen's Bench is
reported in 32 U. C. R. at page 147. The power of the Judge
was affirmed l)y the Court. I gather from reading the
reports that the jurisdiction of the Court of Queen's
Bench, as election Court, to amend, was assumed without
question, by both the Court and the counsel engaged, at-
tention not being called to the limitation of time, and to

•e witli-

aile to

s filed.

lUi'ts ill

ilar in

ave no

lection

That

nongst

e qncs-

I'ial to

;nch is

Jiidgo

ig thi^

jiioen's

,'ithout

<1, at-

aud to

WEST SIMCOE.

\W>

tli(j fact tliut the ^fonoral powers of the Court, declared in
the interpretation clause, were .suliject to the provisions of
the Act, as thi^y still are. The Act in question there was
;{+ Vie. ell. 'i (O.) The (|Uestion reserved, and the only ques-
tion considered on that branch of the ca.se, was, whether
the Judge at the trial had, under the 33rd section — which
is now our .section 43 — the same power as a Judge at nisi
jiriufi, and I entirely agree with that construction of the
statute without wliitdi my learned biother and myself
could not probably engage in the present discussion ; but
I do not look upon the case as a decision of a ([uestiun
which was not mooted, viz. : the effect of the words " sub-
ject to the provisions of this Act." Even if these word.s
ill the Act of 1S71 had been then construed differently
['unn the view we adopt of them as they appear in the
Revised Statutes of Ontario, cli. 11, which statute contain.-^,
in sec. 1 1, the provision whicli originated in 1870 — 31) Vic,
cli. 10, .sec. 2S — respecting the filing of the affidavit, the
decision would not nece.s.sarily govern us. We are of
i)|)itiion that we have no jurisdiction to allow the ameml-
uient.

We took time to consider anotlier of the charges on
which the petitioner seeks to avoid the election. It alleges
tliiit Oeorge Harber, an agent of the I'cspondent, violated
tlie 157th section of the Elections Act, R. S. O. ch. 10, liy
selling or giving spirituous or fermenteil licjuors or strong
drink at his tavern within the limits of polling sub-division
No 1, of the town.ship of Flos during the polling day and
within the hours of polling, which by section 2, sub-section
tj, of the CWtrovorted Elections Act, R. S. 0. ch. 11, is a
corruj)t practice. There is no doubt of the violation of the
section. IIar])er kept a tavern a mile or upwards from the
polling place, and having, as he says, the idea that the pro-
hibition extended only to taverns within a mile, he kept
his tavern open and .sold lit^uor all the polling day just as
he did on other day.s. One instance has been specifically
proved, Harber liimself having given a glass of spirits to
one Kenny — but there is no difficulty in finding as a fact that

lit;

I'KOVINCIAI, KLKCTION.

lie iiiiist liavo Kold or ^'ivcn many (glasses. ITo ventnn-s
tilt' t'stiinatr of SIO as the amount <>\' unnwy proliaMy
taken ovi:r the bar Ll'.tt «lay.

Then, (in tlic ipu'stiun of aL,'<'nf'y, T tliinU we mu.st nls<»
fiml lor till! potitionoi'. 'J'lif ivspondent was nominntcfj liy
II coiivrntioM of persons wlio ivpreseiiteil or assiiiiieil to
represent the Heformer". of the various niunifipalities in
the lidiiit;'. IfMrlier acted as a dele;^ate at that convention,
lie had aclcij in the same capacity at a convention held
bhoiliy before, when a ^'entleman was nominated as a can-
didate who at't(3rwaril.s withdriiw, thu s j,'ivin<^ occasio'" to
hold the second convention. Ilarber had not been very
loriiially delegated to t-ither of tlii' conv(!idions, liut he
attendi'd at the iViUiest and with the reco|^niition of koiiic
members of the party. Tin; important fact i.s, that bo wa.s
actually |)ie.sent and acting' as a member of the convention
which nominated the respoivlent.

There is no pretence that any moans were arran^'od for
carryiiiLj on the contest or that anything was dejieiided upoii
except the exertions of tliosi; favouialth; to the respondent
or his party. The respondent did ni>t undertake a pt-r-
sonal canvass, or appoint any particular persons or associa-
tions of j)ersons, his ayjonts for the purpose of carryiti",' on
the contest. He depended on Ids friends or the member-
of hi.s party, and in the words which lie addressed to the
])er.s(jn.s assembled at the convention, wIkmi hi!thaid<ed them
for his nondnation,he intimate-d that he iixpect<'d bisfriend.s
to woi'k for him. It is not necessary to consider at present
how far Ids adilress to that convention might be treated
iiH authorizing all those who were in the room to act as t'
agents of the .speaker, the assembly then present co
ing a number of persons who Avere not in any use
delegates, and who had t-iken no part in the nomination ;
still less need we discuss its effect as possibly capable of
being used as evidence of the agency of others wlio may
liave belonged to the party, but who were not present.
What we have here is a gathering of men who meet for
the purpose of selecting a candidate as the representative

WKST SIMCOK.

\Vi

nf^od for
[t'll upuii

)()ii(lent
a piT-

iissocia-

\illL( 1)11

icmliors

to tlic

•1 tlu'lll

i'i'unul>
])re.s('nt.
treatf(l

use
■latioii ;
|al)le ot"
to may
present.
U'ct t'(»r
titativc

(if tli«'ir party, wliich is not nuitc tl»<' s!iini> i\\\r\<j; ns inoct-
iii" as voliiiitctTs to concert measures I'or llie assistniice of
one who is !ilrca<ly in tlie HeM oi' who is nH'crine; liimselt'
as a can<ll(hitt' ; they seh-ct the respor\(hMit ; he may or
may not accept their nomination ; he ni;iy <hH line ns Mi-,
i'attotj had ih'i'lined the nomination of the pr(>vions con-
vention, or he may nccept. Ho deci(U;s to accept, and tt.-lls
those who have nominated him that ho does ho and hopes
to win ; not hecanse lio undertakes to canvass tlie consti-
tiiericy and do th(^ work which must lie (hme; not hecnuso
he depends on any central or liranch oi'ijiinisations to con-
ilunt the contest; and not l)ecaiis(^ he has any other
machinery on which he depends; Imt lieeaiise he iidies on
the *>xertioMs of Ids friends. Primarily such words are
aildroHsed to tie- individuals l»y whose action he has heen
induced to heconio a candidate, and as whose allair, at
least as much as his own, he tieats the mattei'. In my
• pinion this is evidence which must he taken to piove the
appointment hy the can<lidate of eveiy one of those who
constituted the convention — and, as I have said, this is all
the len^'th we reiiuire at present to go — as his a^^cnt for
the purpose of the contest. Proof of acts <lone hy the
person thus addressed is in my judi^ment, immaterial and
unnecessary. The a;.,'ency is createil hy the direct authority
^ivon. E\ idenc(! of acts done on hehalf of a candidate is
very important when the agency has to he inferred from
proof of recognition hy a candidate of wdiat some one has
assumed to do on his behalf. Such recognition is only
evidence of prior authorit\', and here the prior authority
is itself proved. The first act done l»y one so authorized
iinist hind the candidate to the sanu; extent as any later
•no of a series of acts. In the present ease, however, there
is evidence of Harbor's taking an active fiart in the con-
test if such evidence were required. Oni; instance is
given in dr. Cooper's evidence respecting a meeting at
Elmvale. There were also meetings at Harbei-'s own house,
though the evidence of any action of his in connection
with th"tn is vague ; and in the case of Lawience Kenny
tus intei ;renco is very distinctly proved.

PROVINCIAL ELKCTION,

I do not think any useful purpose would be served by
referring at any length to the decisions and dicta on tlie
subject of agency in these election contests. Tlie result of
thein all, and "-he principle to which we must always
resort, I take to be tliat the question, which is one of fact,
must be decided in every case upon the ciicumstances im-
mediately in question ; and the fact to be decided may be
stated generally in the words of Martin, B. in the Norwirlt
Case, 1 O'M. & H. 8, when he said : " Mr. Justice
Blackburn, Mr. Justice Willes, and myself, unaiii-
mously came to the conclusion that ar.y peison authorizfil
to canvass was an agent and it does not signify whether he
was forbidden to bribe or not." I may, however, note the
Harwich Case, Tomline v. Tijhr. 41 L. T N. S. 1S7.
when Lush, J , made some instructive oU-^ervations on the
general question of agency, and with some reference to tin;
circumstances of the candidate being invited by a com-
mittee to become their representative ; and refer also to
the judgment of Hawkins, J., in the -la/ i shun/ Cane, 4>4t L.
T. N. S. 198, as more recent expositi(ms of the doctrine. In
my opinion we must hold Harber to have been an agent of
the respondent. It was argued before us in another ca.s- —
the Frescott Case (a) — that a tavern-keeper who sells liquor
for his own jiroHt within the hours of polling does an act
which is not within the scope of his agency, and, thereft.rc,
althouiih he mav come within the definition of an am'ut
as fixed by the decisions under the Acts relating to elec-
tions, does not in this particular act as agent. That argu-
ment has not been addressed to us in the present case,
perhaps because we held in the Px'scotf Ca^e that the
question was really concluded by the .stiitute which, by
declaring such selling a corrupt practice, declared in etiect
that it was done with reference to the election, and was
therefore within the scope of the agency. The facts in
this case may not afford so nuieh room for the ai'gument,
because it cannot be said to appear that Harber soKl only

(a) Reported ante p. 88.

WKST SIMCOE.

149

for liis own profit that day. The incident of Lawrence
Kenny strongly suggests the contrary. Still, if it is desired
to question in appeal the propriety of our ruling in the
I'rescott Case, we do not regard any deference to our opin-
ion in this case as conceding the point. There has thus
been established a corrujjt practice committed by an iigent
of the respondent. This, although without the respondent's
knowledge and consent, will avoid the election, unless it is
saved by the lo9th section of the Election Act, R. S. 0.
ch. 10. That section declares that " to prevent the expense
and trouble of new elections when unnecessary and useless ,
ill case of a corrui)t act or acts being connnittrd by an
aijcnt without the knowledge and consent of the candidate,
if the corrupt act or acts was or were of such ti'itling
nature, or was or were of such triHing extent, that the
result catmot have been affected, or be reasonably supposed
to have been affected by such act or acts, either alone or
in coimection with other Illegal practices at the election,
such corrupt act or acts shall not avoid the election." The
trifling nature or the trifling extent of the con'Uj)t acts
must in some way be shown. In most cases their nature
and extent appear from the evidence by which tlu'ir coni-
niission is proved, and nothing further on that head is
re([uired. Nothing of that sort appears in iliis case. We
know that the whole majority for the successful candidate
was ordy 85. We know that during the whole of the
polling-flay one of the safeguards against corruption pro-
vided by the legislature was disregarde<l. We know but
little of what actually went en at that tivern that day,
and for the purpose of the statute actual coi'ruption need
not be proven ; but the little we do know embraces the
Kenny affair, in which the resources of the tavern were
clearly used by Harber on behalf of the respondent. The
object and purpose of section 159 do not ie<(uiie anything
in the shape of an attempt to estimate the number of
votes which can be shown or surmised to have been affec-
ted by the corrupt act in question, and to balance that
ayainst the actual majority. We must keep in mind the

150

PROVINCIAL ELFCTION.

careful langn!i<:fe of the section -whicli confines its effcft
to ca.se.s Avliere the acts are tritliny' in their nature or
trifling in their extent. No doubt this word trifling must
bo construed in each case with some reference to the
majority, particularly when considering the extent of tlie
coiTupt acts, but the Courtis not called upon to entir into
a quasi scrutiny for the j.urposcs of this section.

We feel it inipossil)le to say that the keeping open of a
tavern for the purpose of selling and giving liquor during
the hours of polling and the selling and giving during
those hours, which we have to find as a fact — acts whieh
the law stigmatizes as corrupt practices — were acts trifling
in tlieif nature or trifling in their extent. It nuiy In.-
eijually impossible to say that they afl'ected the result, Init
that is not the form of the question. We have to say that
the result cannot have been afl'ected or cannot l)e reason-
al)ly supposed to have been aflected by them. We are
unable to say this, and have therefore to hold that section
151) does not apply to save the election, but that it must
be declaied void.

The jietitioner must have the general costs of the peti-
tion and trial, the respondent being entitled to the costs
occasioned by those charges in the paiticulars on which he
has succeeded.

Fehguson, J., concurred.

Pattkhsox, J., in the course of tlie judgment took occa-
sion to remark on the way in whieh the petition had bein
got up, condeuniing it as very loose and unsatisfactory.

Belhnve, Q. C, called attention to the fact that the m>ist
part of two days had been occupied in taking evidence on
the cases souijht to be added by ameTidment, and urued
that of course the respondent would be entitled to
expenses in regard to these.

Pattkkson, J., said the res])ondent would of course be
entitled to expenses in all the ca.ses in which the petitioner

WEST SIMCOE.

151

;s effi'ct
iture or
ig must
■ to the
, of the
ti'V into

pen of a
• (lurin-^-
f during
:s \vlui:h
i trifling

may b«
suit, V)Ut
say that
; reasdu-

We are
t section
t it must

\c peti-

(' C(l>tS

iiicli li».'

( ik ocoii-
lad l)ei'n
tory.

he most

once on

i] urged

itled to

lurso be
3titionei'

Ii.ul not succeeded. The petitioner had not succeeded in
amending, and whatever expenses had been incurred by
the respondent in regard to the cases which the Court had
decided could not be added by amendment he would be
entitled to.

Ferguson, J., concurred.

The respondent appealed from the above judgment to
tiie Court of Ap])eal, and the appeal was argued on Sep-
tember 19th, 1883.

Bcthiiiie, Q. C, Blah', Q. C. Lov.nt, Q. C, and Joh)i.'^fon,
lor the res])ondent. The judgment appealed from turned
on the Ilarher charges. The tavern was about a mile
from the polling place, and only one sinf,de glass was proved
lo have been given. Now conceding Harbc^r was an agent,
would the fact of his keeping his tavern open be a cor-
rupt practice within the meaning of the statute, unless
iloue with reference to the election. The general result
was not allt'cted by the drink given to him by Harljcr.
The .sale of it was not necessarily a corrupt practice ;
l>'{rldsoii V. RoKH, 24 Gr. 22 ; Ontario Bank v. Ntidon, ID
(.". P. 25S. Corrupt practices mean or ought to be read as
iiiraning something done with the view of intineneing the
lioction : see R. S. O. ch. 10, sec. 157, and The Prcscutt Case,
11. E. C. 1. Was the act done by Harber in his character
of agent, assuming that he was an agent ? Is it
altribntalde oris it necessary that it should bo attributed
to it .'' Alust it be conclusively presumed (1) that the sale
was a corru pt practice ; (2) That it was done as agent i M ust
iverything that an agent does illegally be attributed to that
vliaracter ;' Take the case of an agent acting traitorously :
The Stajfunl tkuse, 1 O'M. A: H. 228. Should not the
eleetion at any rate be saved under section liJll > We oiler
20 — VOL. I. E.C,

152

PROVINCIAL ELECTION.

an affidavit that what was sold only amountod to Sl.OO.
There is no eviilcMice that liquor was given away, and none
that otht^r ill e'_ral practices were committed so tar as this
decision is concerned. The result cannot reasonably be
supposed to have been aftl'cted : TJie West fl<isfl nr/s Case (2)
H. E. C. o.*5i). Even it" it had been shewn tliat SlOO was
expended during the day, it was not shewn that any one
was atfected by it. No votes were shewn to be atfected.
Under section 158, an election is not avoided unless the can-
didate is connected with the corrupt act either personally
or by his agent. To constitute a man an agent either the
candidate must set liim in motion to do particular or gen-
eral work, or else there must be ratification of the work
uone. Now, here there never was any connection between
Harber and the respondent. Though the former attended,
he was not a delegate to the convention. Suppose a small
meeting of twenty persons, and the candidate tells them
that he does not mean to canvass, but tlejiends upon the
exertion of his friends — relies upon his jiarty — if commit-
tees are afterwards appointed, does not that limit the
agency to these ? We refer to The DHnrjaimon Election, 3
O'M & H. 101 ; ne Westburjf CVt.sr, ib,, 78 ; T/,c Bodmin
Case, 1 O'M. & H. 117; The London Ca^e, H. E. C.
211; The Westminster Ccif^e, 1 O'M. & H. 89 ; The Windsor
Case, 2 O'M. .^^ II. 88 ; The Soli.^hari/ Case, 4 O'M. & 11. 21 ;
*S'. a, 44 L. T. N. S. 193; The Harwich Case, ib., 187; H.
E. C. pp. lit), 117, 192, 304, 403. 220, 423, 425, 420, 009,
070 ; Th.e Glengarry Case, ib., 8 ; Tlie Kingtiton Case,
il)., 024.

McCa rtliji, Q. C, for the petitioner. A tavern-keeper is
prohibited from selling absolutely for the whole day. The
case is covered by authority : The North Wentnuoili Case,
H. E. C. 343; Ihe Xorth Grey Case, ib., 302; The South
Esi^ex Case, ib., 235: The South Ontario Case, ib., 420;
2he Lincoln Case, ib., 500; The Weliand Case, ib., 187.
The expressions used in some of the English cases do
not apply here in the matter of agency, under the iJitiV'rent
-system which prevails here of making the candiilate the

VVKST SIMCOE,

153

■} 81 .00.

id none

as this

ibly be

Oase (2)
100 was
Lny one
iti'ecteil.
Jie can-
•sonally
:her the

or gen-
ie work
uetween
L,tende(l,

a small
Is them
I pot I the
commit-
mit the

rtion, o

ixhnin
E. C.
\Vindsor

c H. 21 ;

|l.s7; H.

1:^0,009,

:ii Case,

?eper is
The
1^// Ciise,
Soiiih

, 420;

|b., 1S7.
lises do
lirtV'rent
late the

nominee of the party, instead of the candidate putting liim-
self forward foi- election, llarber was a delt'nate at the

etings. He was a.skeil to work, and did work. Ilecj

vassed behind his l)ar. There was an antecedent authority
and a subsequent acting upon it. The circumstances of tlie
case shew that agency sliould be inferred from tlie |)ractice
MOW adoj)ted (jf delegates' convention, etc: T/ie Xortlt
OnUtrio Case, II. E. C. 7N5 ; The Cashel Case, 1 O'M.
^ H. 28G ; The yorth Ontario Case, H. K. C. 80.') ;
The Taunton Case, 1 CM. & H. 180; The S,>uth Xor-
folk Cise, n. E. C. GGO ; The Cormvall Case, (.S,)
ili.,.s08; Tlie East Xorthu/nilierland Case, ib. .S.S? ; The
Bhid-harn Case, 1 O'M.fc H. 200; The Harwich Case, 8 O'M.
1.^ H. (Jl. A candidate may repudiate agents, and yet may
derive benefit from their services without liability. The
Wcstbnri/ Case, 4 O'M.oc II.; The Jku-dle;/ Case, ,'] O'M. .V H.
lb'); 'The Boston Case, ib., 151; The IVestrninstev Case, 1
O'M. & H. 20. As to the effect upon the election, this is the
necessary consequence, not a decision of the Judge upon
any (piestiou of law ur fact, and i< not an appealable matter.
As to an election being set aside for an act of bribery, se;^
The Lichfield Case, 1 O'M. & H. 22. Here the corrupt act
was not of a tritiing nature, nor of a tritling extent.
There was evidence of illegal acts besides those char-i-ed in
the petition.

Bethane, in reply. Any other illegal practices cannot
be relied on, because everything relied upon co defeat the
election must be pleaded cr given in the particulars : R. 8.
0. ch. 11, sec. S. I wish to refer to The Wiijan' Case, 1
O'M. ^ H. 188 ; The Barnstahle Case, 2 O'M. ^ li. 105 ; The
Cum wall Case, H. E. C, p. 547.

October Gtli, 1888. Si'ii.\GGE, C. J. 0.— I propose to ad-
(liess myself first to the (piestion which has been dLscussed
by Mr. Justice Gwynne in the Lincoln Case, reported in Mr.
Hodgins's very useful collection of election cases, at p. 891,
and upon appeal in the same case by the late (,'hief Justice
Draper ; which was discussed also in the South Ontario

154

PROVINCIAL KF.ECTION.

Case, TT. E. (^. 4'JIO, nnd in otlmr cnsos, nnd vcrontly in
the PwHCott Case, (n).

Tlu! (juestion as put \>y M''. Justice (hvytino in tlio Lin-
coht Cose, siiprti, was, whetlu'r the Act of l.sT.S, 'Mi Wc. oil.
'2, avoiding eioetion.s by reason of coi rnj)t ])ractice by the
a"('nt of a can(li<late as well as bv the candiflate himst.'lf,
a|)i.lie(l U) section GU of the Act ot 1808,82 Vic. eh. 21, (O.)
the learned Judge holding, at p. WA, that the Act of 1S7'"}
Mas confined in its operation to acts which he desoi'ibes
thus : " Such acts as arc; done by the agent — I do not say
within the scope of, biit in tlie course of, or e.xercisi; of the
jigency, and in the pursuit of the object of the Jigency —
;iets tloiK! as specified in the G7th section of the Act of
18US, dii'ectly or indirectly by the candidate himself —
some act done with a view to proniotini'- ie some way the
objects of the principal, ami not to extend to acts in
which the pi-incipul is in no way concerned, and which
are done not with any view to his interests, or to the
object of the agency. Such acts," (he adds) "are, it is
true, the ac^ts of the person who is agent, but they are
not the acts of the agent (/tut agent."

The section up(jn w hieh the ((uestion aro.se stood thus
in the Act of 18(38,82 Vie.ch. 21, sec. GG (O.) : " Every hotel,
tavern, and shop, in which spirituous or fermented li([Uor.s
or drinks are ordinarily .sold, shall be closed during the
day ap])ointed for jiolling in the wards and nnmieipalities
in wdiieh the polls are held ; and no spirituous or fernu.'nted
litjuors or drinks shall be sold or given to any person
within the Hunts of such municipality during the said
period, n-.oer a ])enalty of !:5]t)() in every such case."
This seetinii wns placed under the heading " keeping the
peace and good order at elections," not under the head of
" pi'evention of coi'ru])t piactices at elections." The htttei'
is the heading of a group of clauses which follow the
section that 1 have qucjted.

In the Lincoln (Vtw, H. E. C. 8!)!, the tnvern-keeper
was not himself an ag(.'nt of the candidate ; but the

((() Reported ^ 'pra p. 88

WEST SIMCOE.

15.-,

tivatinij was by an a<,'ent ; and the learned Judge draws
!i distinction between tlie two cases, " If (ho says, at
|). .'i99,) a person who is a candidate choose to appoint.
as his agent a hotel or tavern-keeper, who has an
independent interest of his own in violating the statute,
and wlioso violation of it rnay, as it certainly might, lead
to violence endangering the freedom of the election, it
would be plainly proper that a candidate who a{)points
Kuch a person as his agent shouM have his election avoided,
if his agent should so coiiiluet himself in |)lain contraven-
tion of the statute, and we sIkjuM not stop to in([uire
whether the violation of the statute did or diil not atlect
tlio election. It is sufficient that it was well calculateil to
do so.

The learned Chief Justice upon the appeal of the case,
was of opinion that JJ2 Vic. ch. 21, sec. (J(J (O.) applied to the
case of an agent who was not himself the tavej-n-
kerper; the other learned Justices expressed no opinion
upon the point, and the case went otf upon another ground.

lietween the Act of 18G8, and the trial of the Lincoln
Case, two statutes were passed, one in LS7l,34 Vic. ch.*3,(0.)
the other in L'Sj.S.SG Vic. ch. 2,(0.)in each of which there is
a delinitiou of wliat shall be mcajit by " corrupt practices,"
and in the latter Act it is provided that any violation of
su(;tiou GO of the Act of ISGS during the hours appointed
for polling shall be a corrupt practice, sec. 1.

The //</ic'o/;i Cayc was decided in 1875 ; and in the fol-
lowing year, in an Act passed February 10th of that year,
o'J \ ic. ch. 10, we find a clause, sec. 8, which is in ex[)ress
substitution for section GG of the^Act of 18GS, and which is
now re-enacted in the same terms in the R. S. O. ch. 10,
.see. 157. It runs thus: "No spirituous or fermenteil
li(|Uor, or strong drink, shall Ije. .soM or given at any
hotel, tavern, shop or other place within the limits of u
polling district " (in the K S. O. it is polling subdivision)
" iluring the polling day therein, or any part thereof, under
a penalty of one hundred d(jllars for every ott'ence ; and
the offender .shall be subject to imprisonment not exceeding

WPF

156

PROVINCIAL ELECTION.

six montlis, at the discretion of the Jiidijfc or Court, in de-
fault of payment of such fine," and the interpretation clause,
R. S. O. eh. 11, sec. 2, suli-sec. 0, defines any violation of
section l')? dnrint,' polling hours to ho a corrupt practice.

I have i-efened to these several statutes as indica-
ting the mind of the Legislature, that the giving or
selling of strong drink at taveins or shops during the poll-
ing day, !ind especially during polling hours, was a great
evil; that it wa-s, as put by Mr. Justice Cwj-nne, calculattd
to aflect the election: that it required stringent legislation
to correct the evil. The change of the class under which
the oflence was ranked in the Act of LSG(S, "keeping the
peace an<l good order," to the heading "corrupt practices"
in the Act of INTO, S9 Vic. eh. IG, is also significant.

To my mind, it is, indeed, more than significant. Section
1 ')S of the Act now governing elections, R. S. O. ch. 10 does,
in terms, avoid an election where any corrupt practice has
heen committed hy any candidate at an election, or by hi,s
agent, wliether with or Vv'ithout the actual knowledge and
consent of such criKli<late, with the single exception, men-
tioned in SLjiion lof), which does not touch the general
(piestion. The words, " Corrujit Practice," used in section
l')8, must mean every act designate<l in the Act as a
corrupt j^iacfice. So that when we find these two things
concur, an act done that comes within the designation, and
that the doer of the act is an agent for the cnndidate, we
are not at liberty to say that the act was done in order to
])romote the objects of the agent, and not in order to pro-
mote the interest of the candidate, that, though true it is
the act (^f the agent, it is not the act of the agent qca
agent. I am quoting hei'c the language of Mr. Justice
Gwynne, applied to the circumstances of the case before
him. There is nothing in his judgment to lead me to
think that ho would have applied it to a case circum-
stanced as is the one before us. I am unable to affree that
it i.s api)licable to either case. It is, I think, not impro-
bable, though I do not know it as a matter of history, tluit
the position taken by the leained Judge nuiy have led to

WEST SIMCOE.

lol

the lerfishition of the following session wiiich I have
jilready iioticeil.

Mr. Bethunu points to some inconveniences and as he
jiuts it to .some incon<3aHiities that wotild or might result in
the interpretation put upon the Act by the rota Judges
who tried, the case. It can hardly be said in the face of
the ch>ar languaj^je of the statute, that the incongruities are
such that the Legislature would not have meant what the
statute has been interpreted to mean. I can understand
that if these assumed incongruities liad been put foi'ward in
debate as reasms against this legislation in the shape in
which we find it, that the answer might have been :
'■ What is suggested may possibly occur, but it is very
improbable; no instance is shewn of its having occurred
hitherto. The evil to be remedied is a very great one ;
tl.j freedom and purity of elections have been ati'ected by
it. It is one of the shapes in which voters have been
tempted to regard rather their passions and grosser
appetites, than their duty as constituents of a representa-
tive body ; and it is wise to make the prohibition general
and comprehensive, even tliough it may possibly in some
iiidivi<lnal cases, work inconvenience or even hardship."

In the case put of authority given to canvass workmen,
or a particular locality, the candidate restricts the agency,
places a limit upon what w^ould otherwise be a general
agency, and as to everything outside of the particular limited
agency he is a stranger. This is not analogous to a case of
general agency, and the general agent doing acts which are
corrupt election practices, such acts cannot be said to be
unconnected with the election. The Legislature has stamped
them with a character — they are proliibited — nut as the law
now stands, because dangerous to peace and good order,
(though that may still be one reason) but because danger-
ous to the freedom and j)urity of election.?. The making
the act a corrupt ))ractice necessarily implies this. It's
being an act which is profitable to the doer of the act and
the making of tli ' profit being assumed to be the motive
of the doer of the act, cannot dissociate the act from the

158

T'ROVINCIAL KLECTION.

election. Tlie Lo<,M,slatnre, we are botind to assume, has
seen that tlic net f)f scllinjjf liquors at such time and place
as are pn)liil)it('(l, are or may be connected with tlu^ elec-
tion then and there in pro<i;resH ; and has therefore made it
a cornipt practice ; and being at and during an election a
corrupt election practice.

I think that tlie reasons weijjhinjj: with the Lerjislature
to give to these acts the designation and character which
it docs give to them are patent enough ; but it is sufficient
for me, that the Legislature lias seen tit to givc^ to tbeni
the designation and chaiacter that they have given to
them, and 1 cannot feel myself at liberty to say that they
are not acts of that character beeauno they ditlcr in some,
oi- it might be in many respects, from other acts to which
the Li'(dslature has attixed the same name and character.

Further, I think it is impossible to say that selling
li(|Uor in a tavei'n or shop may not be in furtherance of the
interest of a candidate, inasmuch as it may give oppor-
tunities to canvass with effect, and be an aid in furthering
such canvass.

We may suj^pose the case of the absence of all prohi-
bition. A canaidate would readily see, and seeing, would,
or some candidate Avould, .seize the advantage of having
tavern-keepers .selling or giving liquor to voters on the
day of election ; and there is too much reason to believe
that such acts would be in furtherance of the interest of
the candidate who had made the tavern-keeper his election
agent.

In my opinion the clause has been rightly interpreted
by the rota Judges,

To come now to the question of agency. It appears
from the evidence that the respondent was put forward as
a candidate through the instrumentality of an organized
body, called the Reform Association of the West llidinj; of
Simeoe : the modus operandi being, that delegates to a
convention were chosen by Reformers under what may be
called the auspices of the Association, that the otiice of the
deleijates in convention was to select the candidate of the

WKST SIMCOE,

15!)

party, an<l tliat tlu> rospoiulcnt was the choice of tlie dch-
ifitt's in convention. Wo soe Ity nunierouH casi-s in Mr.
ll<i(l^fin.s',s collection tliat ninny can(li<lat(!s have been
selected in that way, and tliat it has been a connnon
practice for the delegates to heconio active promoters of
the election of tlie candidate whom they have chosen, by
ciuivassinn- for him and otherwise.

I do not mean to say that beinrr delegates they are
thereby constituted aijents of the cantlidate, or that irivirii;
his candidature their active support afterwanls has that
effect. Strictly I take it that their duty h executed, and
at an end upon their selection of a candidate ; and if after-
\vards they canvass for him, or give him their support
otherwise, it may be of their own free will ; or it may lie
that they have been appointed to that duty by the Reform
Association. There are several instances in England of
canvassers and other election agents V)eing apj)()inted by
and acting for similar political organizations, for whose
acts the candidate was not hold i'esponsil)le, unless he
made them his agents expressly or impliedly ; or ratified
and adopted their acts. But at the same time we note the
frequency of the cliange of the mere delegate to the active;
election agent ; how in practice the one follows ni)on tlie
other. It requires, I apprehend, less ])ositivc evi<lenee of
appointment, or recognition and adoption than in the case
of one not a delegate.

The ca.se of t\iHt 2s orthuvibeiiand, H. E. C. .SS7,
ajipears to have ])roceeded upon that principle, and tin;
language of Mr. Justice Lush in the Harwich Ciise, .S O'M.
ilv: H. Gl), pioceeds upon the idea that agency may be in-
ferred from the circuinstanccs connected with the position
of the parties, and their acts and conduct. A number of th.;
leadinjj residents of the borough had formed themselves
into a permanent association, selected the respondent as
their candidate, and invited him to become their represen-
tative ; and after the respondent lad commenced his
canvass, they continued to act on their own behalf, as tliey
had done before, and assisted the respondent in his candi-

21 — VOL, I. E.G.

100

I'UOVIN'CIA' KLKCTION'.

(lature in fnrtlioranco of the interests of tlieir party. It
appcartMj that as to canvjiHsinj^ the h(jr()U<,'h tlie respondent
had from the ontsot determined, and that ho had matlo hi,s
<leterininati(»n known to tho association, that Ids canvass in
til'' horoii^'h slioidd be a personal (-ne ; and that this
tiet(U-niination was carried out. Mr. Justiee Lusli fastuiiod
ii[jon this circnnistanco as rebutting the infeienco that ho
would otherwise have drawn from tho (ttlwr circumstances
of the case. The report states him to have said that if noth-
ing n»ore had appeared than tho facts just stated, as to the
respondent's connection \vith the association, ami if the
respondent had not determined and maile known liis
determination to the association tliat his canvass should be
a personal (jne, theie would have been strong ji>r/»i(i/((!;^!
evidence of agency on tlie part of tlio whole association ;
but looking at the whole circumstances of the case, he held
that only one of them, a solicitor whom he hud directly
apjiointed as his election agent, was in a prt)per and legal
sense his agent.

Ill the case before us the (juestion of agency does not
depend upon any over nice distinctions, it is clear from
the cases, and it is common .sense, that no formal appoint-
ment, or any particular words are necessary to constitute
agency. The language of many learned Judges might bo
(juoted to this etlect. In the JJumjannon Case, 8 O'M. & H,
102, Baron Fitzgerald, speaking of such agency, says:
" Whether it lias any distinct reference to canvassing or
anything of that kind, appears to me to be immaterial,
but in some sense or another, he" (the alU'ged agent) "must
be considereil as entrusted by the candidate with the per-
formance of some part of the business of the election whicli
properly belongs to the candidate himself, though lie is
unable to perforin it in many cases without somebody to
aid him. But that entrusting may be made out not merely
by an express apj)ointment to the performance of some
material duty in reference to the election, but ma}' be
made out by implication. The circumstances oi each case
may diHer, but that im[)lication ordinarily must arise

WKST SIMCOi;.

ICI

nstitute

-•lit be

I. Sz H.

says :

iiiig or

iiatovial,
" must

tlu! ])(M-

1 wliioli

I lie is
)otly to
merely

jf some

II cay be
c:l» ease
t arise

from tlio knowlcdfijo wliidi it ftppoatN tli'it the omxlidoto
Ijas of the part whiclj the person is takin;,' in the eii'cti((n."

Quotations mi^'ht be nniltiplieij. Without, mnltipiyini:,''
tijem iinnec(>ssnrily I iiuiy (piote the Innj^Aiapi ol" Mr.
Justice Grove, in the Wikcfiild Case.,'! O.'M. & H. 100,
evidently })ointed at the contrivances resorted to liy
caiididates in order to have tlu^ advantaLfeot the assistance
of othei's in iurtherin*^ tlieir election while escapinjif
responsibility of tiieir acts. After adverting to the wiih-r
scope given to the term ag(!ncy in election matters, beyond
that given to it in ordinary transactions, the learneil .hulge
says at p. lOM : " 1 think it well that I should say in this
ri'spect that hero it is almost impossible for any Judge to
lay down such exact definitions and limits as shall meet
(■very particular case, anu it is extremely im})ortfint that
tilt' public should know that, because, were it otherwise,
weie I for instance on the present occasion, to pietend to
lay down an exact definition of what constituted agency
at an election, possibly in some other case that pnrticular
dttinition might be evaded, although what catne to sub-
stantially the same thing might have taken place.
Hapi)ily there is suHicient elasticity in the law to prevent
that being the case ; and hero again those who think that
tliey can evade the law by just creeping out of tho
words which learned Judges use, or oven which tribunals
use, upon a matter of this sort, which is parti}' law and
partly fact, will generally tind that tliey are very much
iiiistaken. It is therefore well that it should be under-
stood that it rests with tho Judge, not misapplying or
straining the law, but applying the principles of the law
to changed states of facts, to form his opinion as to
whether there has or has not been what constitiites a<,''oncv
in these election matters. It is well that the I'ublic should
know that they cannot evade the ditliculty by merely
getting, as they supjjose, out of the technical meaning of
certain words and ])hrases."

The ])laintiff"s case is, that at the convention at which
ihe respondent was nominated he constituted the delegates

162

PROVINCIAL ELECTION.

by whom he was nominatetl his agents, if lie (li<l not con-
stitute all present Ins election agents. What took place on
that occasion was shortly this. The delegates assembled
in convention having selected the respcmdeno as the
candidate of the party, he was sent for in order to his
formally r<;ceiving the nomination at the hands of the
convention. Upon his appearing before the convention he
v^as inf(jrmed by the chairman of his nomination, anil he
accepted it, and, as Mr. Cooper says, he thanked the meet-
ing for giving him the nomination. Mr. Cooper is asked :
"Did he say he would go to work and Jo all he could to
secure th(! election, and ask you to do vhe same" in sub-
stance ? His answer is, " I cannot say, I guess he used
woixls to that cfi'ect ; it would be curious if he did not do
so." It appear.-^ from his own evidence that in accepting
tin? nomination, he said in substance that he could not
per.^onally canvass the whole riding, and asked those whom
he addressed to work for him. I may here noticG the fact
that he did personally canvass only one township, leaving
it to others to canvass the rest of the riding. At the elec-
tion trial a number of (jiiestions w^ere asked oi him in
order to get from him whom it was that he addressed
when askinu: others to work for lum. His answei's do not
read as if given in a direct, straightforward manner, but I
gather from his own evidence that he addressed the request
to the delegates. The whole nundjer of persons present on
the occasion he estim;ite<l at two or three hundred. It
was put to him "these two or three hundred ware not
delegates," his answer is, " I don't suppose they were."
It is then put to him, '• the delegates were separated from
the others," his answer is, " I would naturally suppose so."
Question, " And that was the habit" Answer, " I suppose
so." * * Question. " The delegates were sepani ted from
those who were not delegates ;'" Answer. " That is always
the practice."

There is more evidence substantially to the same effect.
It amoiiuts to this, that the respondent on being nomina-
ted by the convention of delegates, thanked them for the

WEST SIMCOE.

IGG

iimnination, and aflded something more. The thanks
wpi'o, of course, for tlie nomination, to the noi.iinators ; to
whom was the something more addressed ? It would
iiatiu'idly he athlressed to the same hody of men, and tliere
is nothing to sliew tliat it was addressed to others.

If in the Harivuh Case, 3 CM. & H. CO, tlie respondent
ill accepting the nomination had addressed those who nomi-
nated him in similar terms to those used by the respondent
ill this case, it is certain from what was said by Mr. Justice
Lush, that he would have held the relation of agency estab-
lished. In that case the respondent stated his deteimina-
tiou to make a personal canvass. and asked no one to work f( ir
him. In tliis case the respondent said he could not make a
personal canvass, giving that as a reason for asking others to
work for him. 1'hose whom he so asked {i. e., the delegates,
as I read the evidence) he constituted his agents for the elec-
tion, within the meaning of the cases in England and in
this country. I will only add to the anthoiit '^'s to which
I have already referred, what was said by Baron Martin
in the Nonckh. Case, 1 CM. & II. at p. 10: "Mr. Justice
Blackburn, Mr. Justice Willes, and myself unanimously
came to the conclusion that any person authorized to can-
vass was an agent, and it does not signify whether he has
lieen forbidden to bribe or not."

The next question is, was Harber a delegate to this
convention ? He was present as a delegate at the conven-
tion at which the respondent was nominated, and present
when the nomination was made, when it was tendered to
the respondent and accepted by him. He was, therefore,
one of those to wliom the respondent addressed his thanks,
and his request that those whom he addressed would work
tor liim. I do not think it is f\)i- us to inquire whether
lie was duly elected. He says in his evidence that he was
elected. His election does not appear to have been (piestioned
Jit the time, he was recognized as a delegate anrl acted as
such in the convention. He was a delegate dc- facAo, awl
that is sutlicient for the purpose in question.

104

PROVINCIAL ELKCTION.

I tliink it would be running counter to the English
ci*!cirtionp, an well as to those of Ontario, and to the
spi'T'iifc of the election law here as well as tliere, not to hoM
Harber an agent of the respondent.

Apart then from section loO, the acts of Harber in sell-
ing- liquor in his tavern during election hours, and in givinff
li([Uor to Lain*ence Kenny, also during election hours, were
coriupt practices, sufficient to avoid the election.

The evil to be remedied by section 159 — taking the
avoidance of an election, and the cost and turmoil of a new
election upon trifling grounds to be an evil, was what
occurred i)erhaps not unfrequently ; that for .some single
unimpoi'tant act by an agent, done perhaps in ignorance
of the law, the election was necessarily avoiiled. The
Juda'es trviniT the election petition might feel convinced
that the act luid no effect whatever u|)on the result of the
election and yet have no alternative, and be obliged to .set
it aside. This provision of the Act enables the Judges in
su(;h a ca.se to say, " This act of the respondent's agent was
committed without the knowledge or consent of the rfcs|)on-
dent himself; and though in stiictness a corrupt piuctice
as defined by the Election Act, it was of so trifling a
nature, and in its extent also so trifling, tliat the result of
the election cannot in reason be .supposed to have been
affected by it. It will be uin-easonable therei'ore to set
the election aside and put the candidates and the constitu-
ency to the expense and trouble of a new election, which
in our ju(igmeiit is unnecessary and useless, and therefore
we do not avoid the election." In what I have said I have
para|>hrased the .section.

Probably all the election Judges have liad before them
cases, before this clau.se was embodied into the election
law, in wliich they would have been glad to have been
able to deal with them as this section of the Act enables
Judires to deal with them. But at the same time one can-
not but feel that the power given .should be exercised very
cautiously. This siiould be the case with the Judges of
first instance ; and a fortiori with the Judges of this

WEST SIMroE,

10.-)

Court, where the rota Judges liave deemed the cnse to be
iidt proper for the application of the power given by this
section of the Act. We, in this Court, liearing tlio case
upon aj)peal, cannot be such good judges of tlie extent Ui
which the result of the election may have been affected by
the "corru})t practice" in question, especially when we
take into account that what is to be lookt'd at is, not only
the effect upon the election of a certain act or acts, but the
L of these acts, "either alone or in connection with
other illegal practices at the election." The whole course
of the election, acts illegal, but not " corrupt practices,"
withi'' *'"^ meaning of the Act, the weight to be given to
the e\ ideiict' of witnesses, and to circumstances, and their
jirohahle or even possible bearing upon the results of all
these things the Judges before whom all these things
p ! u or wei'e disclosed in evidence, are better Judges
t; Ml ■ e can be. The maj(M"ity of the respondent, thirty-
tive, in a constituency ni which between three and four
thousand voted, was an element of considei-ation for the
rota Judges. Where the m.ajority is an overwhelming one
it is, of course less likely that the result would be affected
bv an act or acts tritiinrj in their nature or extent.

My brother Patterson, by whom the judgment of the rota
Judges was delivered, gives their reasons for hohimg the
case not within the 159th section, an<l in the soundness of
those reasons I concur ; but were I less impi'essed with
those reasons than I am I should not dissent from the
conclusion at which the rota Judges have arrived, unless
in my juilgment they were clearly wrong. They put it
thus, that it may be impossible to say that the acts in
question aflected the result, but they add, and I agree with
them, " that is not the form of the question. We have to
say that the result cannot have been affected, or cannot be
reasonably su{)posed to have been afiected by them — we
are unable to say this." There is nothing Itefore us that
enables us to say that in this they have come to a wrong
conclusion.

^faji»^fc«— .^

106

PROVINCIAL ELECTION.

It is not really necessary to say anything about the
character of Harbor's act in giving of whiskey to Lawrence
Kenny, but, what appears in evidence in relation to it
tends to shew the propriety of the refusal of the I'ota
Judoes to briii^j the case within section 159. It was not
an act of innocent hospitality but, as I think the evidence
shews, an act in aid of a scheme by a supporter of the
respondent to enveigle Kenny into Harber's tavern, and
transfer him from the possession, so to call it, of a sup-
porter of Mr. Moberly, in whose vehicle he was sitting for
the purpose of being conveyed to the j)olls, to the ])osition
of a supporter of the respondent in whose vehicle he was
ciirweyed to the poll. It is difficult, in view of chis cir-
cumstance, to say that the selling of liquor by Harber in
his tavern duiing prohibited hours was an act of a trilling
nature, or that it was of such trilling extent that the result
cannot be supposed to have been att'ected by it. I say
during prohibited hours because his tavern was during
those hours open for the sale of liquor, and he did
take in on that da}"^ svs much (to take his own estimate),
as $10, but it w^as an illegal act throughout the day, and
therefore projier to be taken into account in saying
whether the case should be brought within the section.
And w^o see from the part that Harber took in the
Lawrence Kenny matter, that he was a man not unlikely
to improve the opjtortunities which his open house and
selling of liquor would atlbrd him in influencing the votes
of those brought by his illegal act within the sphere of
his influence. 1 do not see that the Judges could properly
shut their eyes to that fact with whatever purpose the
evidence was given.

ITpon the whole my 0[)inion is that the appeal should
be dismissed.

Burton, J. A. — I do not consider it necessary to offer
any opinion \ipon the question of whether the facts and
circumstances relied on in this case are or are not sufficient
to establish agency, nor upon the other points referred to

WKST SIMCOE.

107

on the aiffumont, because I li.is'c come to a very clear con-
(dusion, that even if agenc}' were establisned, the wroiii^-
(locr did not stand in tlie rehition of agent in respect of
the matter complained of.

I sha'l not attempt any exact definition of what consti-
tutes agency in election matters. Judges have over and
over again declared that it is impossible to lay down such
exact definitions and limits as shall meet every particular
case. A much wide" scope has been necessarily given to
the term in election matters than in oidinaiy transactions,
and it may be laid down geneially, that a candidate is
•esponsible for the misdeeds of those who are employed by
him, or who to his knowledge, for the purpose of promoting
his election, canvass or do such other acts as niay tend to
jiromote his election, but then they must, I apprehend, be
misdeeds of these persons while acting within the scope of
their duty and only while so acting.

Being an agent to canvass for and to promote generally
the election of the candidate, tlie latter is undoubtedly
responsible for bribery and other corrupt acts done with
the view to acconiplish that end, and I apprehend that the
furnishing entertainment to a 'Meeting of electors assem-
hled for the {)urpose of promoting the election, which,
though frequently an innocent act in itself, was for
reasons of policy made at tirst an illegal act, and luis now
heen declared to be a corrupt practice, might, if done by
an agent, well be deemed to be a matter which would atl'ect
the candidate as well as himself, beinu an act to further
the object for which he was appointeil.

The question is thus dealt with by Mr. Justice Lusji, in
the Harwich Case, 44 L. T. N. S. at p. 18!), 2 O'M. & H.
G9 : " As 1 observed a day or two ago the relation between
a candidate and a person whom he constitutes his agent,
is nuich more intimate than that which subsists between
an ordinaiy principal and agent. The closest analogy is,
that of a sherift" and his under-sheritt and bailiffs. For
as regards the seat, the candidate is lesponsible for all the
taitideeds of his aynit comvtilted wUhin the acuf-ie of his
22— VOL. 1. ii.c.

IGS

PKOVINCIAL ELKCTION,

imthnr'ihj, althon«;h they wore done against liis express
directions, and even in wilfid defiance of them. * *
The diihculty always is, when thoi-e is no express appoint-
ment to determine whether the wrong-doer did or did not
stand in tlie relation of agent to the candidate in respect
of the partici'Jar miatter of complaint. * * The next
(piestiim is, it agent, what is he agent for, wliat is he
app )inted to do, or what does he [)r()fess to do? If a
])erson were appoin* d or accepted as agent for canvass-
ing generall}', and he were to bribe or treat any voter,
the candidate would lose his seat. But if he was employed
or accepted to canvass a particular class — as if a master
were asked to canvass his workmen, and he went out of
his way and bribed a person who was not his workman
the candidate would not be responsible, because this was
not within tlie scope of his authority."

In the one case the agent would be acting within the
scope of his authority, though in al)use of it ; in the other
he would be acting beyond his authority, and would be no
more to the candidate than a stranger.

Again, in the WeMburi/ Case, ',i CM. & H. 78, the same
learned Judge dealt again with the question of agency.

It was proved there that there was in the borough an
association attached to the Conservative cause who volun-
tarily assemliled together to ])romote their own political
views. They sent a requisition to the candidate asking
him to become their representative, whereupon he attended
.some of their meetings in order to expound his political
view.s.

They did not become his committee, and as a matter of
iact he had no committee. An endeavour was made to
render him responsible for acts of bribery of some ot the
members of this associaticm inasmuch as it was contended,
he had made them agents by recognition and acceptance of
their services. The learneil Judtre held th(> candidate not
re.sponsible, repeating what he had said in the Harwich
Case, supra, and concluded at ]), 80, "of course it follows
that if a person who»n the candidate haii not authorized to

WEST SIMOOK.

ICO

canvass at all or t() take such part in the management of

an chu'tion as included canvassing, whatever else he was

employed to do, were to take upon himself to bribe a vot^'r,

the candidate would not be responsible for that wront;ful

act. No candidate could ever make sure of a seat if he

were made responsible for the acts of unauthorized per-
il

.^ons.

A text writer on the subject of election petitions, (Cun-
nint^'ham's Law of Elections, 2n(l ed. p. 219) thus refers to
the Titniivorfh Cane, 1 O'M. & H. 75, where it was laid down
that a i)erson who employs private police for the purpose
of the election, would be answerable for their acts as his
servants : " Probably the moaninir of the decision in the
Taniworth Case is, that the candidate would be liable for
any illegal acts done by ))rivate police, while acting as
such, according to the line of duty marked out for them ;
;nid doubtless, if while or in the course of discharging
such duties, an act of intimidation were committed, the
candidate would probably be responsible for it just as
much as if it were done by an agent. As, however, an
act of bribery oi- corrupt treating could scarcely be brought
within the scope of such a per.son's duties, as an act of
intimidation might easily be, he would not render the
candidate liable for it as his agent."

I refer to these cases as shewing that although the can-
didate cannot relieve himself from lesponsibility so far as
the seat is concerned for the acts of his agent, though done
without his consent or even contrary to his express instruc-
tions, still it is only for those acts of the agent which are
done by hiiu whilst acting or pi'ofes.sing to act within the
scope of his duties that the candidate is respon.sible.

Mr. Justice Lush, in the judgment I have above quoted,
4:1. L.T.N. S. at p. 189, says: "That the closest analogy is
that of the liabilitv of a sherirt' for the acts oi his bailiff's,
his liability extemls to all acts, however wrongful, and
although against the sheritt's express instructions, but with
this limitation however that they must be done under
color of the writ."

170

I'KOVINflAI. lOMXTK'N.

As it is ])iit ill OIK' of the cases, if u hiiilitl' liaviiijf a writ
for tlie arrest ot" oiio jierson, were to arrest four, tl»e slnijff
would not !»(> lialtle, aIthou;^li he would elearly he JiaMc if
the Iiailill havin^f an execution a^rainst A. were to seize the
goods of B. ; hut where the hailitf having made aseizuic of
a (h'fendant's goods heyontl tlie value of the sum endoi-.srd

lO writ, proceeded with the |uivity of the plaintitf to
sell the whoi(\ tlu-Jslieritf was lield not liable for thej^oods
sold after stiHicient had heen made to sati^fy the executicm.

In the KiiKj's Lynn ('ai-e, I O'M. (Sc H. 207, it was
attemi»t(!d to make the candidate ivsponsible for stato-
ments made hy his agent, hut Baron Martin, in delivorinjf
judgment used this language: "The act of an agent is
eviilence against a respondent, Init speaking generally, it is
confined to tliat, though it is possiide that he may be such
an agent as to nud<e his statements evidence also, liut
clearly you cannot nud<e use of a statement made by an
auent, upon a matter with which the auenev is not con-
nected, 'vliich is really nothing more than heaisay."

So in tlie Sal ford i'u.^i', \ O'M. & il. l,"J2, a sum of moui-y
paid after the termination of the election by a ])erson
who had been agent for tlie candidate, to a voter on account
of his having voted, thougli a corrupt practice on the part
of the agent, if done without the privity of the candidatu,
was held not to atl'ect lum.

It appears to me to be contiary to all principle to hdld
any person aHected l>y the act of an agent, unless it is
shewn that the act was done in the course of the eni) !oy-
ment, and within the scope of the authority, althougli it
may be in abuvj of it.

We can derive but little assistance from the decisions
under the English Acts, because there the corrupt acts for
the doing of which Ity the agent the principal has been
held responsible, are all neces.sarily connected with the
work of canvassing, and conducting the election or olhcr-
wise aiding the candidate in the promotion of his electinu ;
he therefore is acting witliin the scope of the authority
•riven to him, in u sense ho is professing to act as agent,

WKST SIMCOK.

171

wjj; a writ
tlie slit rit!
L' lialilc if
) .seize the
seiziiic of

1 t'lKloi'Si'd

laintill' to
the liOdils
t'xocution.
7, it was
for stato-
(lt;liveriiiif
I agent is
rallv, it is
ly be such
filso. liUt
lade by aii
1 not euu-

. of niont.-y
a person

)i\ account
tlie pa it

:andiilate,

e to linhl

less it is

e em I !oy-

liougii it

decisions
)t acts lor
has lieen
with the
or ollier-
lehjctiou ;
authority
as aueiit,

thotjffh in so actinj:; he does sotnofliin;^ which is in excess
of that authority, but is chine to further the object, for
w!ii''h he was appcjintecl.

The diflieulty in construing our statute arises from tlu^
fnet tliat certain acts which were prohibited, and made
ill'U'ah because it was assumed tliat tliey mii^dd- liave a
t( iidency to distuib the peace, luive been made corrupt
practices, instead of liavinc; tin; same penal consequences
attached to th(nn as attnch to coi'rupt practices, which
probal)ly wouhl liave been a more reasonable way of deal-
in-,' with them, if it was thou;,fht desirabh> to impose
ndilitiona! penalties for the more rigid enforcement of these
provisions.

The question in this case arises under R, S. O. ch. 10, sec.
l.')7, which was, as I ha» e said, ]iassed oiiginally with the
design of preserving peace and order on polling day, and
with this object the taverndceijper who kept his hotcil
open, and sold or gave spirituous licpiors to any one on
that day. was subjected to certain penalties.

The Act IK) Vict. ch. 2 (0.), provi<led irder nl'ia that any
violation of this section during the hours appoijited for
polling .should be included in the words ■' corrupt practices.' '

As pointed out in the Lincoln Case, H. E. C. oDl,
the amending law'(3i) Vic. ch. 10)eHeetcd no very material
change, the leading idea being that liquor kept for .sale at
hotels, taverns, shopsorofclier places whore liquor is usually
sold, .shall not be dispensed on polling day, either l)y
.selling or under the pretence of giving, but that the
oti'ender, the ])er9on to violate it was the tavern-keeperi
or the person for the time being acting in that capacity.

The person who can be proceeded against for a violation
of this section is still asunder the former law, the tavern-
keeper or his locum tenen.s, and h(^ is so liable though the
person to whom liquor is sold or given is not a voter or in
any way connected with the election.

Of course if it had been ihewn that liquor had
boon sold, or given by the tavern-keeper, he being an
agent, to any voter on account of .such voter being

172

rROVmciAL KLKCTIOV.

about to v()t(}, or luiviiijjf voti-d, that would ht* a cor-
nil)t praotico involvinj,' the caiididati^ as well as the
tavorn-kcnpor, a,s it would l)o lui act prosuniably done it)
the exercise of the authority }j;iven to him, but that is nut
the ease here uia<lo. We must assume iti a case of this
kind that the evich'uce ^dvcii is all that could be ffivon of
the transaction, and tliat bcin^j; so \\v are called upon t(»
say whether a simple \ iolation of the ir)7th section by the
tavern-keeper l)y selling or eiviri}^' spiiituous li(|uor within
polling' hours, which is a corrupt act on the part of the
tavern-keeper involves the candidate, because the tavei'u-
keeper is his agent generally for canvassing and assisting
him in the election.

The learned Judges at the trial held that the question
was really concluded by the statute, \\hich by declaring
>ueh selling to l)e a corrupt practice, declared in etllet
tliat it was done in refeirnce to the election, ami was
therefore within the scope of tlie agency.

Whilst concurring in the opinion of those learned
Judges as to the etiect of the statute in making tliis a
Corrupt practice, tlioiigh done without any corru]»t intent,
1 submit with greut deference that a (piestion of fact still
remains for eousideiation — viz., whether in doing the act
he did so as agent.

I have already jjointed out a nunibei- of instances in
which the partieidar act complained of, would atfect the
agent only and not the candidate, as where there is a limi-
tation on the agency ; but we can imagine a ease in which
the agent being a tavern-keeper, lias in good faith scrupu-
lously avoided any act l>y which his })iinci}ial could he
affected or the election avoided, but iuis nevertheless
determined to run the risk personally of keeping his house
open on polling day for his own profit, or of doing so as is
alleged in the present cas(>, purely for his own purposes,
and under a bona fide belief that he did not come within
the prohibition ; it these facts are clearly established
to the satisfaction of this Court, — he is unquestionably
guilty of a corrupt practice within the meaning of the

WKST SIMCOK.

173

sfaliitc uihI liiilild to the j)oiinlty. As in Shylocks ens.* :
' The law liatli ^'ivon it aiul the (•otiit awards it ;" but in
tliciT any reason why we should do vioh-nce to a well
csUililished priii('ii>lt', and liold a jx-isoii liaMc foi- the art
of a third party (h)no without his authority, mikI whilst
not pursuing' or enjL,'a;,'c<l in his principal's einpluyinent,
unless compelled to do so hy the words of tlie Acts of
r.irliiinient.

1 see nothing in tlH> Acts to force us to such ;i conclusion,
and 1 am most unwillin<,' to add tliis additional responsihility
l(» that already imposed upon a caiiilidate for the acts df
his agent, which must operate frequently with great li.ud-
sliip upon the pei'sons thus situated. J cpiite agree that
hr cuiMiot gUMi'd himself against the consecjuencts of th'>
acts of agents, if once they are proved to be agents, by
swearing, even thougli he may convincti the Court tluit ho
is swearing truly that he never inteiideil that anytliinj^
illegal should be done. The question is, what authority
iliil he give, iind did the acts of tlie person ,so authoiizrd,
k'gal ()!• illegal, naturally follow the authoi'ity which was
^'iven: T/wJSllno ('<is,', I 0"M. ^' H. 800. if they did he must
suH'er, l)ut if the act was entirely outside of and uncon-
nected with the agency, 1 fail to see the justice or policy
of throwing the additional burden upon people wlio
are i'airly conducting their canvass and exposing the con-
.stituency to the turmoil and trouble of a fresh election.

in the several cases to wliicli I liave referred, and in
the Knglish cases the candidate has been made rcsponsil)le
because in carrying out the authorized acts he liad com-
niitted tlie wrongful act.

1 do not for a moment (piestion that if this man had
irivcn licpior to a voter to induce him to vote that the can-
didate would sutler, because the act, tlumgh illegal, ■would
be done in cairying out the object foi" which he was
ap|)()inted agent. Kenny's case may or may not have been
of tliat character, but it was not included in the particulars,
and was not investigated, but where as here nothing more
is shown in reference to the transaction than that the hotil

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PROVINCIAL ELECTION.

keeper opened his hotel and disposed of spirituous liquors
in the usual course of business, how can it be inferred that
he did so otherwise than for his own profit ? No amount of
evidence, said the late Mr. Justice Willes, ought to
induce a judicial tribunal to act upon mere suspicion, or
to imagine the existence of evidence which might have
been given by the petitioner, but which he has not thought
it his interest actually to bring forward, and to act upon
that and not upon the evidence which actually has l)een
brought forward. Here the only evidence is that this
man did it for his own purpose under a mistaken idea that
he ha* . . 'ght to do so, and there is nothing whatever to
sijow thftt tl)is was done in connection with his character
t>i atjeut. -'ohuugh the responsibility of a principal for
his Mg m< .u under the election laws is of necessity far
wider t.ha«^i 1, ordinary cases, it is necessary even in these
cases in some way to shew that the act was done in pur-
suance, though in excess of the actual authority ; there is
no difficulty in shewing this in cases of bribery and
offences of a similar character ; but it is not because in
other cases it may be attended with more difficulty that
it is to be assumed without evidence.

It is fair, T think, in considering a question under this
section to look at the history of the legislation, and we
then see that it was originally passed altogether with a
different object than that which relates to corrupt prac-
tices aiming at the suppression of bribery, corrupt treating,
and similar offences.

In the present case there is nothing to shew that the
act was done otherwise than for the private gain of
the tavern-keeper, solely on his own account, and without
reference in any way to his position as agent. To hold the
candidate liable for such an act would be, in my opinion,
opposed both to principle and authority and would extend
the responsibility of a candidate for the acts of persons
acting as his agents far beyond what was ever intended,
would be making him liable in fact for acts which had no
connection with the agency, a conclusion I venture to
think unsound in law.

WEST SIMCOE.

175

i^ "

"■'h'

I am very clearly of opinion that he cannot be affected
by such an act, although it was on the part of the tavern-
keeper himself a corrupt practice, and I regret that the
other members of the Court feel themselves unable to
come to the same conclusion, for the avoidance of an
election on such grounds shocks one's lense of justice and
must have a tendency to weaken, rather than strengthen,
the public confidence in the generally very wholesome
laws which have been passed for attaining purity in
elections.

I think that on these grounds the appeal should be
allowed, and the judgment reversed with costs.

In this view of the case, I have not thought it necessary
to enter into any analysis of the evidence as to agency,
hut I desire to express my dissent from the view that the
words said to have been ad<lressed to the delegates at the
meeting at which the candidate was nominated, viz. : "that
he should have to rely on his friends," constituted either
the delegates assembled or his supporters generally his
agents during the contest, although I am clear that if they
could be interpreted as granting any authority it could
not be limited to the persons there assembled, but would
equally extend to all parties supporting him during the
contest, and thus stated it seems to involve a reductio ad
ahsurdum. He certainly never could have intended, and
the persons who read or heard his words could not have
supposed that he intended, to confer any authority on
them to act as agents.

As I understand the evidetice, the delegates were
selected for the purpose of vjiitin^ upon a candidate who
would be generally acceptable to the party whose political
views he was supposed to represent — the selection once
made and accepted, their duties and powers were at an
end, and I am unable, I confess, to see the distinction
hetween such a case, and one in which a person unsolicited
issues an address to the elector': announcing his inten
lion to offer himself as a candidate for their suffrages, and
intimating that it is impossible for him to make a personal
23 — VOL. I. E.C.

176

PROVINCIAL ELECTION.

canvass, but that he would have to rely on the votes and
influence uf his supporters for election. Can it be sup-
posed that in making an appeal in such a form the candi-
date intended that every Tom, Dick, or Hany, in the con-
8titue.acy who should assist in the election would become
his agent.

The liability of the candidate for the acts of political
associations is a different matter, and cannot be better
expressed than it was by Mr. Justice Lopes, in Si e Bewd-
ley Case, 3 O'M. & H., at p. 146: "There may be,"
he says, "doubtless in a borough a political association
existing for the purpose of a political party, advocating
the cause of a particular candidate, and largely con-
tributing to his success, yet in no privity with the can-
didate or his agents, an independent agency and acting
in its own behalf. To say that the candidate should
be responsible for the corrupt acts of any member
of that association, however active, would be unjust
against common sense and opposed to law. There may, on
the other hand, be an association in a borough advo-
cating the views of the candidate, of which that candidate
is not a member, to the funds of which he does not subscribe,
and with which he personally is not ostensibly connected,
but at the same time in intimate relationship with his
agents, utilised by them for the purpose of carrying out his
election, interchanging communication and information
with his agents respecting the canvassing of voters and
the conduct of the election, and largely contributing to
the result. To say that the candidate is not responsible
for any corrupt acts done by an active member of such
an association, would be repealing the Corrupt Practices
Act and sanctioning a most eflective system of corruption. "
To eveiy word of that judgment I subscribe, but it serves
to make the distinction very clear between authorized
and uuauthorized acts, and to .show that the mere knowl-
edge that »uch an association was acting in hij interest,
would not in itself be such a recognition as to make the
candidate responsible. To hold a candidate not liable iu

WEST SIMCCK.

177

th(! case first suggested, but to be responsible for the acts
of a supporter because in thanking the delegates for their
.selection, he intimated at the same time that he would
have to rely upon the exertions of his friends, would not
be very consistent. The remarks could not in reason be
held to he confined to the delegates or the persons there
assembled, forming numerically » very small prof)ortion of
the constituency, and could confer no authority upon
them that was not intended to be conferred upon all his
supporters and friends.

To caiTy the law of agency in election cases to such a
length as this would be sufficient to deter any gentleman
o£ moderate means from embarking in a contest which
might involve him in a pecuniary loss which he might be
unahic to afi'ord, and would practically limit the selection
of candidates to millionaires and paupers. 1 think far
too wide a meaning has been attributed to the words of
the candidate uttered on such an occasion, and that applying
to them our own experience and common sense and our
observation of what goes on around us on occasions such
as that referred to, we ought to hold that the candidate
merely intended to express the wish that his friends
should give him an earnest hearty support in the contest
upon which the\ were embarking.

OsLER, J. A.— On the questions of Harber's agency, and
of the application of section 159, I do not think it neces-
sary to add anything. I entirely concur in the view which
the learned Chief Justice has taken of the result ot the
evidence, and of the application of that section.

The only other question is, whether, in the circumstances,
the respondent is liable to be unseated for the corrupt
l)ractice committed by Harber. 1 was at first inclined to
doubt it, but upon further consideration have arrived at a
tirm opinion that he is liable, and for the following reasons :

By the 34 Vic. ch. 3, (O.) sec. 3, " corrupt practices," and

" corrupt practice," were declared to mean not only bribery

and undue infiuence, but also certain illegal and prohibited

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178

I'ROVINCIAL ELECTION.

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p. :'

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acts, with this saving, that the latter as well as the former
must, by the terms of the statute, have had reference to
the election.

Accordingly, in the Brockville Case, (1871) 'H. E. C,
189, it was held that the sale of liquor by a saloon-keeper
during polling hours on the polling day, prohibited
by section 66 of the Act of 1868. 32 Vic. eh. 21 (0.)
was not a coirnpt practice, unless it was shewn
to have been done to influence or to affect the election, or
in some way to have been done in connection with it. The
question there on the scrutiny was, whether the voter, a
saloon-keeper, had committed a corrupt practice so as to
avoid his vote under sec. 47 of the Controverted Elections
Act, 1871, 34 Vic. ch. 3, and it was held by the Court of
Queen's Bench, on a case referred to them by the rota Judge,
that inasmuch as the liquor had been sold for the private
gain only of the saloon keeper, and not in the interest of
either candidate, the act even iff illegal and prohibited,
had not been done in reference to the election, and so was
not a corrupt practice.

But as the law now stands the intent and object of the
sale cannot be enqiired into. Not only is * 3 sale by the
tavern-keeper during the polling day absolutely prohibited,
but any violation of the section during the hours of polling
is declared to be a corrupt practice at an election, as much
as bribery, treating or undue influence, as those offences
are defined or described in other sections of the Act. There-
fore the sale or gift by the tavern-keeper — the only person
who can be an offender within the section as interpreted
by the Court of Appeal, in the South Ontario Case,
H. E. C. p. 420, — whether the object be his private
gain or to promote the cause of a candidate, or both,
is an offcnc with reference to the election, and a cor-
rupt practice, and as to the tavern-keeper himself would
clearly have the effect of avoiding his vote under R.
S. O. ch. 10, sec. 163, irrespective of the character of
the act.

WEST SIMCOE.

179

It is apparent that the Ijegislature in transferring
this offence from the class or group of sections which
relate to keeping the peace and good order at elections, to
that which relates to the prevention of corrupt practices
thereat, and further by specially classing it in tL inter-
pretation clause with the offences of furnishing entertain-
ment to meetings of electors, hiring vehicles, and perso-
nation, meant to stamp it as one which in itself was in a
g oater or less degree calculated to affect voters, and to
interfere with the freedom of the election.

The effect upon the individual who commits the offence
or upon the cundidate himself, if done with his actual
knowledge and consent, North Wentivorth Cane, II.
E. C. 343, is not doubtful : the question, is what its
effect should be upon the latter if committed by his
aaent. R. S. O. ch. 10, sec. 158 avoids the election when
a corrupt practice is found to have been committed by the
candidate or by his agent, whether with or without the
actual knowledge or consent of the candidate. Where then
the agent is a tavern-keopei', and the agency is unrestricted
and he has committed a corrupt practice by selling or
giving liquor during polling houi-s, it would seem plain
that the candidate is brought within the danger ci" the
section.

The respondent argues that it may, notwithstanding,
be shewn that the act was not within the scope of the
agency, that it had no reference to tiie election and
was done altogether dlverso intuitu. But if the statute
makes the act a corrupt practice, irrespective of the inten-
tion with which it was committed, it seems to me neces-
sarily to follow that the respondent must be n fleeted by
it, and in so holding we do not at all extend the rule as
to a candidate's liability for the acts of his agent. One
of the reasons for that rule is mentionod l»y Mr. Justice,
now Lord Blackburn, in the Taunton Case, 1 O'M. ^ H.
at p. 184 : " The rule of parliamentary election law, that a
candidate is responsible for the corrupt act of his agent,
though he himself did not intend it or authorize it, but

■ 1

ifif

180

PROVINCIAL ELECTION.

It'

bond fids did his best to hinder it, is a rule thai must at
all times fall with grtat hardship upon particular persons.
But I may just mention the considerations which no
doubt led the coirmon law, as I may call it, of Parliament
to establish it. Corruption, as we all know in practice
and in fact, is seldom or never done by the hand of the
candidate. * * Persons were put forward to do all
the work of canvassing and conducting an election, and
these persons acted corruptly, but the can lidate purposely
kept himself out of the knowledge of anything about the
matter, so that he niight have the full benet't of their
services, and were it not for the rule which has been
established he would not suffer for their misdeeds. That
is one of the great reasons."

It is a reason which applies with peculiar force to the
(piestion under consideration.

By appointing as his agent one of that class of persons
by whom only the corrupt practice in question cati be
committed the candidate places himself in the hands of a
person who may do an act well calculated to affect the
election; and I entirely agree with the observation of
Gwynne, J., in the Lincoln Case, H. E. C at p. 391),
that "it would be plainly proper that a candidate who
appoints such a person as his agent should have his
election avoided, if his agent should conduct himself in
plain contravention of the statute, and that we should not
stop to enquire whether the violation of the statute did
or did not ntfect the election." I will only add that I
think we are precluded from making such enquiry.

Our decision on this appeal renders it unnecessary to
dispose of the cross-appeal presented by the petitioner
(which has been argued), against that part of the judg-
ment at the trial which holds that the petition is not suffi-
cient in its present form, within sec. 2 of the Controverted
Election Act, R. S. O. ch. 11, to embrace the offence of
treating as defined or described in section 153 of the
Election Act, R. S. O. ch. 10.

firi

imtt

WEST SIMCOE.

181

At present I do not wish to be considered as assenting
to the construction which the trial Judges have placed
upon the petition as a question of pleading, or upon R.
S. 0. ch. 11, sec. 2.

Morrison, J.A., expressed his full concurrence in the
judgment of Spragge, C. J. O.

A. H. F. l-

■; "

'■?l

I'J

182

PROVINCIAL ELECTION.

SOUTH VICTORIA.

PROVINCIAL ELECTION.

Before Patterson, J.A., and Ferguson, J.

Lindsay, 9th, luth, and 11th July, 18HS.

Before the Court of Appeal.

/VeMM^-SpRAnoK, C.J.O., Haoarty, C.J., Burton and Cslkr, .T.T.A.

Toronto, 9th November, 1H83,
19th January, ISM4.

John C. Rodden, Petitioner, v. Duncan John McIntyre.

Respondent.

Election Act — R. 8. O. ch. 10, s. 154 — Railway PaaiteH— Corrupt Practices—

DincretiuH ofJudije.

The obtaining by an agent of a candidate from the president of a rail-
way company six passes, for which nothing had been or was ever
intended to be paid, three of which were used in bringing as niiiiiy
voters to the poll ^s not a corrupt practice within the meaning of the
Election Act s. 154.

The mischievous etlects that might arise from such a practice on the pact
of railways remarked upon.

Where a motion is made which depends on the discretion of the Jud<,'e,
the Court will not, as a rule, review the exercise of such discretion.

This was a petition by John C. Rodden complaining of
the undue election to the Provincial Assembly of Duncan
John McIntyre, which was tried before Pntterson, J. A.,
and Ferguson, J., at Lindsay, on the 9th, 10th, and 11th of
July, 1883.

On the trial it was proved in evidence thnt one Huoh
O'Leary, who it was admitted had been employed as ageiit
of the respondent, had procured from Mr. Cox, president of
the Midland Railway, six railway passes, five of which

J ' ■

SOUTH VICTORIA.

183

were given to one Connors, who kept two of ihcu\ foihiin-
Holf, and made use of the others in brin<i;ing three voters
named Collin, Uoolihan, and Mullin, from a lumbering camp
in the township of Haliburton, about twenty miles from
[iiiidsay, where the election was held, for the purpose of
voting for the respondent. The passes had been obtained
from Cox by O'Leary on the representation that the
r 'spondent was being placed in a false position by liis
opponents in consecjuence of his action in connection
with the amalgnmation of the railways.

Nothing had been paid for the passes, nor was anything
to l)e paid for them. Connors was requested to go
to the shanties where the voters were by Hugh O'Leary
and Thomas Stewart, the resptmdent's [)artner, by whom
the passes were given to (.'onners, and also SIO for his
expen.ses. Connei's accordingly went for the voters
named, and in returning with them the train was snowed
lip in a drift at Fenelon Falls. Connors thereupon hired
a conveyance and drove with the voters to Lindsay.

Connors swore that in doing this he had expended the
?10 given him by O'Leary and also $11 of his own in pay-
ing foi the conveyance and meals for the party, including
some liquor on the way ; that this had never been repaid,
not had anj'^ promise of repayment been made to him by
any one. The petitioner then applied for leave to amend
the particulars by adding a charge of hiring teams by
Connors, which was refused.

The learned Judges during the progress of the trial dis-
missed all the charges other than that in reference to the
railway passes, reserving their decision as to this until the
conclusion of the trial, when that also was dismissed.

Pattkkson, J. A., observed that it was not necessary to
give any formal decision on the question, as it was clear
that the giving of the passes had not affected the result of
the election, the evidence clearly shewing that there was
iK»t any intention to violate the law, and that there was
nothing shewn to create a suspicion that there was any
24 — VOL, I. E.c.

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184

PROVINCIAL ELECTION.

connection Iwtween the giving of these pass(\s to bring
Collin, Hoolilmn, and Mullin from II ililnirton and any
general arrangement to supply voters with passcn or other
means of conveyance.

i EROUSON, J., concurred.

The petitioner thereupon appealed to the Court of
Appeal, and the appeal was heard on the 9th of November,
1883.*

Hector Cameron, Q. C, and McSweyn, for the appel-
lant.
S. H. Blake, Q. C, and O'Leary, for the respondent.

January 19, 1884. Si'RAGGK, C. J. 0. — Mr. H. Cameron,
in addition to the arguments a<l(lressed to us by himself,
refers us to the judgment of Mr. Justice Cameron in the
East NorthumhfrlandCam. The question is substantially
the same in both, viz., whether the giving of railway tickets,
or of free ra'lvvay passes, by an agent of a candidate to a
voter, in order to his going to and returning from a polling
pluce, such railway tickets or passes not being paid for by
the agent to the railway company, or to any one, and
costing the agent nothing, is in breach of that part of sec.
154 which prohibits "the payment by any candidate, or
by any pers(m on his behalf, of the travelling and other
expenses of any voter in going to or returning from any
election."

Mr. Cameron conceded that if the agent conveyed the
voter to and from the poll in his own private carriage it
would not be within the Act. He concedes also that if
the keeper of a livery stable were to place one or more of
his carriages at the disposal of a candidate or his agent, for
a like purpose, without cost, it would not be within the
Act. I confess I am unable to perceive the difference
between these cases and the cases in question.

*PrMent. —SvRAGOS, C. J.O., Uaqarty, C. J., Bukton and Oslks, JJ.A.

SOUTH VUTOllIA.

185

The provisions of the section are, I think, obviously
pointi'd at tlic correction of two evils : one that the hiring
of vehicles and paying of travelling expenses were often
made a cloak for Itrilicry ; the other that the expenses of
elections were thereby greatly increased, so that men of
moderate means were deterred from seeking to enter
Piuliainent.^.and the choice of representatives was nar-
rowed to those who were able, or at least willing, to
expend a great deal of money to procure their election.

I caimot agree with Mr. Justice Cameron that the V'ier
being carried without expense to himself was what sec.
154 was intended to prevent. I see nothing to indicate
s'.ich to be the policy of the Act. Nor can I see arj reason
why it should be so. It cannot be in the puldic interest, it
cannot be of heui tit to the state that voters should bi> put
to beai ouy unnecessary burthen in the exercise of their
franchise as voters. On the contrary it is the policy of the
law to attbrd reasonable facilities to voters. II(?nce the
cimnge of the law from one, to several polling places in v\
electoral <livision ; and other legislative provisions in the
same direction. And the same policy is indicated in the
Representation of the People Act, 30 & 31 Vict. ch. 102 Imp ;
sec. 3(} of that Act relates only to boroughs in Engliind and
Wales, and it prohibits as a general provision the payment
of any money on account of the conveyance of any voter
to the poll, but it excepts East Redford, and four other
boroughs from this general prohibition ; and the reason for
tills exception, as given by Baion Martin in the Salford
Cmo (I O'M. & H. 135) was, that in those boroughs the
voters lived at a distance from the polling places. His
inference was that it was the intention of the h;gislature
that the voters in other boroughs should either walk or go
in their own carriages. I do not know that the inference
was a just one. It certainly was not a necessary one ;
when all that was piohibited was the payment of money
oil account of the conveyance of any voter to the poll. " It
is permitted" (the learned Baron says for the reason that»
he had given, that in the excepted boroughs) " hired con-

P'^-'^'"

r;h

■ 'm^

186

PROVINCIAL ELECTION.

veyances should be provided." The making of that excop-
tion indicates very clearly the policy of the Legislature to
be, not that the voter should have to bear any unnecessary
burthen, but that he should have every facility for the
giving of" his vote.

Upon the language of Baron Martin, assuming that liis
inference was a correct one when applied to an English
borough, I ma}' observe that it by ,no means Ib'lows that
it would be correct, if applied to a Canadian rural con-
stituency. The conditions are essentially different, as to
geographical extent, and as to the habits of the people.

Mr. Justice Cameron says, and I agree with him, that in
construing an Act of Parliament the mischief intended to
be prevented, or the remedy provided, to be gathered from
the enactment must be regarded ; and effect so given to
the statute as to carry out the intention of the Jiegiislature ;
without, of course, by jutlicial decision extending the oper-
ation of the Act beyond what the language itself will
reasonably cover. But with great deference to the learned
judge I cannot but'think that he has erred in his applica-
tion to this case of both points of the canon of construction
that he has propounded. I do not tind anything in this
enactment indicatiuff that the Lemslature reo;arded the
conveyance of voters to and f lom the poll, free of expense
to the voter, and free of expense also to the candidate, and
to any one acting on his behalf, as a mischief to be pre-
vented. And as I read this enactment it would be strain-
ing the language used beyond its ordinary legitimate mean-
ing to interpret the word " payment" in the connection in
which it is used, to something which is not payment, by or
for the cat»didate, but simply a saving of the expense of
travelling to the voter, without cost to the cauilidate. It'
the legislature had meant to prohibit this I assume that
t?»ey would have known what apt words to use to express
their intention.

I agree in the judgment upon this point of the learned
, Chancellor.

SOUTH VICTORIA.

187

\'M

Mr. Came'on upon this appeal makes a contention in
relation tti tliese railway tickets and passes, which is not
noticed in the opinions certified to us by the rota judges.
It is that the giving of these papers was a breach of trust :
that they could not have been obtained and used for the
purpose for which they were used without there being a
breach of trust. We do not know this as a matter of fact,
ami we cannot assume that any wrong was committed, and
if a wrong it was a wrong between third parties. The
ar<minent I understand to be that the shareholders have a
right to exact payment from some one for these tickets and
passes, and if that right were enforced there would be a
payment. It amount.' to this that a possible liability to
account, and that not shewn, but which we are asked to
presume, is a payment within the meaning of the statute.
I think this position wholly untenable.

My opinion is, that the appeal should be dismissed, with
costs.

With regard to the application made to the rota judges
for leave to amend the particulars if an amendment should
bo necessary, I think in the first place that the charge in
the particulars did not cover that of which in addition to
the question of railway fares the petitioner desired to give
evidence. It was a cognate charge, but not the same
charge, and therefore without an amendment evidence of
it could not be given. The application for leave to amend
was an application to the discretion of the rota Ju iges ;
they in the exercise of their discretion refused, and w^e are
asked to review that exercis3 ot discretion.

In the case of Kennedy v„ Braitkwalte (a), which was an
appeal from the exercise of di^oretion by my brother
Burton upon an application before him, I gave shortly my
\iew as to how appeals from the discretion of a judge exer-
cised upon an application for an inrlulgence should be
dealt with. I refer to what I .said then, because it was as 1
understood assented to by the other members of the
Court.

fF^TF

. !..»

188

PROVINCIAL ELECTION.

My brother Patterson, one of the rota judges who tried
this case has been good enough to explain why the applica-
tion to amend was refused.

Appeal should be dismissed.

Hagauty, C. J. — I fully agree with the general views of
my brother Cameron as to the giving of free passes to
voters on a railway. He holds such a proceeding to le
within the Act of the Legislature.

It may well be said to be within the general mischief
aimed at in the Act, but I <lo not think that sufficient in
itself; it must also be, in effect, the thing prohibited by
the Act: see Pldlpoits v. St. Geonjes Hospital, G H. L. C.

It is likel}' that the Legislature may amend the Act so
as clearly to cover such a case.

To my mind the giving of free passes could be made a
powerful engine of corruption and undue influence.

I do not concur in the supposed analogy between a voter
travelling on a free pass over the railway and the case of a
voter travellino- in a neiyhbour's waoon, or in the carriage
of the candidate, or one of his agents or friends. On such
a principle, if the president or a director of a railway coia-
i:)an3' were a candidate, all those expected to support him
might be carried free, or the company might offer to cany
all voters free from a particular locality known to be
favorable to their officer.

I entertain a very strong view as to the mischievous
effects that might arise from such a practice on the part of
the great railway companies — the monopolists of most of
the carriage business of the country. But I fool compelled
to hold that the statute does not, in terms, prohibit this
practice.

My remarks are on the general principle. I agree that
nothing was done in the case before us matei'ially to
influence the result of the election, and concur in dismissing
the appeal.

SOUTH VICTORIA.

189

I see the recent Imperial Act as to elections, 46 & 47
Viet. eh. ol.sec. 1 4, forbids the letting, lending, or employing
for conveyance of voters any public stage, hackney carriage,
or horses used for drawing same, or carriages or horses

kept for letting out for hire.

Burton, J. A. — The principal question of law argued on
this appeal is the same as that argued in the East Northum-
bcdand Case, namely, whether the furnishing of railway
tickets or jmsses to voters is a corrupt practice witl.in sec-
154 of the Election Act.

1 think there was no difference of opinion between the
learned counsel as to the rules to be applied in the con-
struction of the statute, that is to say, that no different
rule was to be observed by reason of its being a penal
statute. That rule is well expressed b\' Mr. Sedgwick, in
his excellent work on Statutory and Constitutional Law,
where he remarks :

"These decisions naturally modify the old rule, that
penal statutes are to be construed strictly. The more cor-
rect version of the doctrine appears to be that statutes of
this class are to be fairly construed and faithfully applied
according to the intent of the Legislature ; and again,
these decisions shew the gradual tendency of the judicial
mind to disavow and renounce any right to construe
statutes according to considerations of policy or hardship,
and to recognize the duty of conforming on all occasions
to the will of the law-making bod}'."

And Lord Bramwell, in one case, after referring to the
rule that every Act of Parliament is to be read afcording
to the natural construction of its words, adds, " The rule
properly understood is, that the burden of proof is on the
assertor, not that wherever there is any tloubt a statute is
to be said not to mean what it does mean."

What is there then in the words of this enactment to
warrant the contention of the petitioner that a free gift of
a railwav ticket comes within them ?

11 J 11

■-'■ Jl

:;rf«l

if .1

iFT»T

190

raOVINCIAL ELECTION.

The section in question commences with a recital that
doubts may arise as to whether the hiring of teams and
vehicles to convey electors to and from the polls, and the
paying of railway fares and other expenses of voters be or
be not according to law.and therefore enacts that the hiring
or paying for any horse, team, carriage, cab, or other vehicle
by any candidate, or by anj- person on his behalf to convey
voters to, or near, or from the poll, or the payment by any
candidate, or by any person on his behalf of the travelling
and other expenses of any voter in going to or returning
from any election shall be illegal acts, and the person so
oflfonding shall thereby incur a penalty of $100.

Acting upon the principle that the affirmative of the
proposition must be made out by the petitioner, I can
only say that so far from such affirmative having been
established it is impossible I think to place such an inter-
pretation on the language the Legislatui'e has employed : to
brinof the case within the section it must be both within
the reasonable and natural meaning of the terms used, and
within the spirit and scope of the enactment.

In my opinion it is not within either, and the learned
Judges came, I think, to the right conclusion in the dispo-
sition thoy niadi^ of these charges.

The onh' other point is whether the hiring of the teams
by Conners to convey the electors to whom the railway
passes were j^'iven from Fenelon Falls, owing to the railway
being blocked b}' the snow, was embraced in the particu-
lars, or if not, whether the learned Judges were wrong in
refusing an amendment.

It can scarcely be gravely contended that it falls within
the particulars when the corrupt practice charged is in
one case " $25 and lost time," in another " fare and lost
time," and in a third "$8 and lost time."

And in a case where every corrupt charge had been dis-
missed it could scarcely be claimed that the amendment
was " necessary for the advancement of justice," the only
effect of the atnendment, if borne out by the evidence,
being to saddle the respondent with the costs of the trial

SOUTH VICTORIA.

191

for the act of an agent, done without his knowledge or
consent, and an act innocent in itself, except in so far as it
might bo found to be within the prohibition of the 8tatiit(>.
I think that the appeal fails on all grounds, and should
ho dismissed, with costs.

Osi.ER, J. A. — Upon the principal question involved,
namely, whether giving railway passes to certain voters
to enable them to attend the polls is an infraction of sec.
1.54 of the Election Act, I have given the most anxious
attention to the arguments addressed to us by Mr. Cameron
in support of the appeals in this case and the EukI Nor-
tharnh( rland Case, and to the judgment of my brother
Camei'on delivered on the trial of the latter case before
himself and the Chancellor.

The question turns upon the meaning to be attributed
to the expressions "payment of railway fares," and " pay-
ment of the travelling expenses," used in the above section,
and it is contended that when a railway company, at the
instance of a candidate or his agent, furnish free passes
over their railway to enable voters who are supporters of
such candidate to attend at the polls, nothing being, in
faet, paid to or intended to be charged by the railway
company for such passes, the railway fares or travelling
expenses of such voters are nevertheless paid by the candi-
date, or his agent, within the meaning of the Act.

In its recital and enacting part the 154th section deals
with two thinfjs: 1st. The hirinjr of teams or vehicles to
convey voters to the polls ; and 2nd. The payment of the
travelling and other expenses of a votiir in going to or
returning from the election. The recital speaks of the
"paying of railway fares" and other expen.ses ; but the
language of the enacting part is more general, prohibiting
payment of " travelling" and other expenses.

It is easy to see that the practice of which we have

illustrations in these two cases may lead to grave

abuses where the president or other official of a railway

company, or other great carrying corporation, happens to

25 — VOL. I. E.c.

i' i

192

PROVINCIAL ELECTION.

bo a candidate, or where such a corporation, for ulterior
purposes, desires to support some particular candidate
or political party ; and if such practice is not within the
enactment in question, it may well be made the subject of
express legislation. What we have here to consider how-
ever is whether it is within, not merely the spirit
of the enactment, or the mischief intended to be
remedied by it, but also within the reasonable meaning of
its terms. We are to adopt the ordinary canons for the
construction of statutes, which, as understood and applied
in modem cases, even to penal or prohibitory Acts, appear
to me to be not different from those laid down by the Inter-
pretation Act (R. S. O. ch. 1, sec. 8, subsec. 38).

I will briefly refer to two or three of these cases, trite as
the passages quoted may seem.

In Warbii vtmi v. Loveland, 1 Huds. & Br. G48, cited ' .i the
celebrated case of Miller v. Salomovs,7 Ex., at p. 527, this
rule was enunciated " It is a very useful rule in the con-
struction of a statute to adhere to the ordinary meaning of
the words used, and to the grammatical construction, unless
that is at variance with the intention of the Legislature to
be collected from the statute itself, or leads to any manifest
absurdity or repugnance, in which case the language may
be varied or modified so as to avoid such inconvenience
but no further,"

In Stephenson v. Higginson, 3 H, L. C. G86, Lord Truro
said :" In construing an Act of Parliament every * * word
must be understood according to the legal meaning, unless
it shall appear from the context that the Legislature \
used it in a popular or more enlarged sense; that is i'l;
general rule, but in a penal enactment where you d«vn.ii*
from the ordinary meaning of the words used, the intention
of the legislature that those words should be understood on
a more enlarged or popular sense must plainly appear."

In Alexander v. Brame, 7 D. M. «fe G. 525, 539, it was
said by Lord Justice Turner : " There is perhaps no ques-
tion in the law more difficult to be determined than the
que-stion what particular acts, not expressly prohibited.

SOUTH VICTORIA.

193

shall be deemed to be void as being against the policy of a
statute. It is no doubt the duty of the Courts so to con-
strue statutes as to suppress the mi.schief against which
they are directed, and to advance the remedy which they
were intended to provide ; but it is one thing to construe
the words of a statute, and another to extend its operation
Ijeyond what the words of it express."

Ill Fhilpott V. St. Georges Hospital, 6 H. L. C. 338,
cited in the judgment, the Master of the Rolls had held
a bequest to be void on the ground that it came within
the spirit of the statute of mortmain having as he said
a direct tendency to bring lands into mottninin. Lord
C'ranworth says, in the passage referred to, that when
von find that anything done is substantially that which
is prohibited, it is open to the Court to say that it is
void, not because it comes within the spirit of the statute,
liut because by reason of the true construction it is the
thing or one of the things the statute meant to prohibit.

Then he holds that upon the true construction of the
statute the bequest is not void merely because its tendency
was or might be to bring lands into mortmain.

I go along with my brother Cameron in adopting the
language of Lord Cranworth as containing the piiticiples
applicable to the construction of the 154th section; we only
(lifter in our view of the substantial identity of the thing
(lone with the thing prohibited. In testing this, the observa-
tions of Lord Brougham in the same case are very much to
the point, " We cannot feel any doubt as to the meaning of
the words used ; we may look at the spirit as well as the
letter of the enactment. But we are called upon to go a
great deal further and to look at the prt;sumed intention
of the Legislature. Because the Legislature has confined
itself to one specific mode of accomplishing its purpose, we
fire therefore to add enactments which the Legislature never
made, provisions beyond what the Legislature has made for
the purpose of completing that wliich it left defective. I
am not at all prepared to adopt any such general principle
of construction."

wim

194

PROVINCIAL ELECTION.

See also Attorney-General v. Jefferiea, 13 Price 580, and
Dyke v. Elliott " The Gauntlet," L R. 4 P. C. 184, 191, per
James, L. J.

To apply these authorities to the present case. We find
that the Act forbids under the same penalty the hiring of
teams, and the payment of travelling expenses whether
railway fare or stage fare. Admittedly it is lawful to use,
in cairying voters to the polls, as many vehicles as the
owiiei's choose to freely lend or volunteer for the pur-
pose. Nothing but the actual hiring is forbidden.
If that be so I do not see how it can be said that the
gift by a railway company of free passes over their rail-
way can be said to be plainly within the spirit or scope of
a prohibition against payment of travelling expenses or the
paying of railway fares. If the voter travels free u ? regards
himself and the candidate he merely has no travelling
expenses. What the section strikes at, is, not the
saving of expense to the voter, but the expenditure of
money by the candidate. Is it then the same thing as
regards the latter, whether by influence which is legitimate
because not forbidden, ho procures free passes for voters,
and so enables them to attend without expense, or whether
he pa3's such voters or the railway company their travelling
expenses ? The two things seem to me essentially different,
the former, apart from its greater liability to abuse, being in
principle tha same as obtaining the free use of vehicles to
take voters to the polls.

Therefore I conclude that the practice in question is not
one ot the things the Act meant to prohibit ; the words, as
Lord Wensleydale says in the St. George's Hospital Case
" have a clear and distinct meaning, and no doubt they
were used in the statute in the sense in which they would
be used anywhere else."

I will only add in reference to the Salford Case, 1 O'M. &
H. 133, 20 L. T. N. S. 120, that the observations of Mr.
Baron Martin, quoted by Mr. Justice Cameron, were made
in dealing with the question of conveyances hired for the
voters, or hired by the candidate and used by the voter.

SOUTH VICTORIA.

195

So in the Stroud Case, 2 O'M. & H. 185, and the Bolton
Case, 2 O'M. & H. 144, where free passes had been given to
the voters, it will be seen that the railway company had
been paid for them.

There remains the question of the amendment of the
particulars as to the charge of hiring teams to convey
voters who had come as far as Fenelon Falls on the railway.

Mr. Cameron contended that this charge was substan-
tially C'tvered by the particulars, which allege payment of
the railway fare of these voters, whereas, for part of the
distance they travelled by means of some other hired
fonveyance. Technically and literally, however, it is a
different charge, and 1 do not think we should be wananted
in interfering with the discretion of the learned trial
judges merely for the purpose of throwing the costs upon
the respondent, especially in a case where, upon the whole
the election has been fairly and properly conducted.

I must say, hcjwever, that the language of the particulars
ought not to be too nicely construed, and that amendments
within the scope of the petition ought to be freely made
on such terms, if necessary, as will prevent the opposite
l)arty from being taken by surprise, or incurring unneces-
sary costs.

I think the appeal should be dismissed.

(a) Kennedy v. Braitiiwaite.

Appeal from order of Burton, J. A., refusing the plain-
tiff's motion to extend the time for delivering the appeal
books.

McPhill'qis, for the plaintiff.

Aylesworih and Ilolman, for the defendants.

Spragoe, C. J. O. — The plaintiff desiring to appeal from the judgment
which was against him in the Court below, was not prepared to deliver his
aiipeal book within the time prescribed by the General Orders of the

f:V

190

PROVINCIAL ELECTION.

Court ; ami applied to my brother Burton to grant him further time for
the purpose. This application, after hearing botli siiles, and the ntlida-
vita tiled for and against the applicant, was refused. The plaintiff hat
appealed from this decision of my learned brother to the lull Court.

The application was for an indulgence, and therefore to the discretion
o>' fae learned Judge to wli<;m it was made ; who would, in exercising
hi» discrotinn, give due veigiit to all the circumstances brought befors
him, not imly in respect of the diligence or negligence of the party
making the application ; but also in respect of the nature of the cose,
and whether having regard to all that was before him, the granting of the
application would be or would not be in furtherance of justice.

Upon this application to this Court, which, in either of the two shapes
in which it is made, is in reality an application from the judgment of my
learned brother, we are asked to over-rule the discretion which he has
exercised.

He has gone over with us the circumstances of the cose as presented
to him, and sees no reason to change the opinion that he formed of it,
when it was before him. I do not myself express any opinion upon it.
I have not, and could not, well have gone over it without forming some
opinion ; but I abstain from expressing it for one reason, and one reason
oidy — viz., that the question being Jone simply for the exercise of the
discretion of the learned Judge who hoard it, we, of the Appellate Court,
upon seeing it to be so, should, as a general rule, not interpose our own
discretion one way or the other.

1 do not mean to say that it is a hard and fast rule that the exercise of
the discretion of a Judge may not be reviewed ; but rather that the Court
imposes upon itself as a general rule from which it rarely departs, that it
does not interfere where the matter appealed is simply from the discretion
of a Judge exercised in a matter proper for the exercise of his discretion.

This seems to be the course in England, and, is, I think, obviously the
proper course.

MUSKUKA AND PARRY SOUND.

MUSKOKA AND PARRY SOUND.

197

PROVINCIAL ELECTION.

V ■

>^I

Before Mr. Justice PArrERsoy and Mr. Justice

Ferguson.

Braobbridok, August 21gt-25lh, 1833,

Before the Court of Appeal.

Prutnt. — Chief Justice Hagartt, Mr. Justice Burton, Mr. Justiok
Morrison, Mr. Justicb Galt.

Toronto, June 2nd, 30th, 1884.

George Paget and Peter Leo Mackenzip, Petitioners,
V. Frederick George Fauquier, R'-apondcnt.

Corrupt practice — Briheri/ — Agenc;/ — Appeal hy candidate for help fror^
tho*e prexent at nomination — Difference between comp'.frcial aijency and
eL'rIiiin agency — Voting in unorganized dixtrict — Hiring vehiclex — Fur-
nixhing refrex/nnentx at meeting of electors — iJixfranchixenient of candi-
date — Relief from »uch disfranchisement — R, 8. O,, ch. 10, sees. 149 (a)
151, 154, Idly 162.

Wliere N. who appeared to have been agent of a candidate, called npon
Al., an elector, <ind, without directly asking him to vote, lianded him
one of the candidate's cards, and stated that be was going to give M.'a
wife a present, but that he could not give M. a present, because it was
election time, and that M. could get a present for bis wife any day he
was in B. (one of the places where voting w.is to take place) ; anil M.
went to B. the night of the election and got the present, which was tea
and sugar, &c., worth about $2.

Held, (at the trial) per Patterson', J. A., and Ferguson, J., that this
came within the acts spoken of in R. S. 0. ch. 10, sec. 149, (a) and that
the goods having been given to M. under the idea that he had voted, it
was immaterial whether it was proved that M. had actually voted or
not.

It appeared thiit when the candidate accepted the nomination of the con-
vention of the p.vrty he intimated to those present, amongst whom was
N. that he looked for their active exertions in carrying on the contest.

Held, per Patterson, J. A., and Ferguson, J., that this amounted to an
authorization of those present including N. to canvass and thr^ to act
as agent, for the authorization to canvass covers agency and even with-

FH III r-

198

PROVINCIAL ELECTION.

out any hucIi exiirewi dcclnratioii the aucncy of thnno perannn wtio weri
autiially iittitiuliiig ami t.tkiiij; part in tlin oonvcntiiui waH eMtaKlinliud in
the abiMMico of niiythiiig Hhcwiiig n rupudiiitioii ur rejection of tlie <iffer
of Hcrvii-eH, which in iiiiplietl by the very fact of their attending niiil
niakiiiK the nomination.

Agiiney in election c»8ch differs from agency in ordina> v commercial or
other transactionH of i)nHineHii, inasmuch an in the case of an election tliu
aKent, couHtituted l>y whatever acts are imtHcient for the purpime, may
bmd Ilia prini-ipiil hy acta which are not only outHi<le the Hcope of any
authority exprcHHly given to him, hut which may l>e directly contrary
to the exprcHH direction.^ of the person whoHe agent he is held to he.

JI<l)l, also, hy I'attkkson, J. A., and KKiKirsoN, .(., that, (I) a person,
the owner of real cHt.ite of the viluo of J'JOO or upwards, anywhere
within the electoral district, has tiie right to vote at any polling place
in the unorganized townxhiim in the electoral district where he may
happen to be on polling day ; {'2) That where the real estate on wliicli
such person relics un his t|ualitication to vote is situate in one of tlie
unorganized townships his right is to vote in any of the unorgaiiizuil
townships without being restricted to the township where his property
may be situate ; (.S) That to entitle a ])erson to vote in the unorganized
townships on the (jnalilicatiop of house-holder, ho must be a houiiu-
holder -that is to say, have his qualilication us such— within the limits
of the u.iorganiz<Ml township.

J/tUl, also, by I'ArrKKsoN, J. A., and Fergison, J., that what is referred
to in I!. S. <). ch. 10, sec. 154, is hiring vehicles to convey persons witli
the intention of their voting, and the (jualilication of such persons, (ir
their right to vote, is immaterial, whereas section loS requires persons
there n referred to bo voters.

C»ue A. had hired teams and taken voters to the polls contrary to 1{. S. 0.
ch. 1(1, sec. iri4, and it was ]iroved that the candidate being in the vil-
lage or (}. , was t<dd that A. was there for the above jiurposes, and that
he weiit to see A. in his hotel and discussed the election and the pro-
bable results, with lists of voters, &c.

Jfcld, per Kekoi'son, J., that tJiif was sufficient to prove the agency of A.
in the mrtter.

J/eld, per ^A■r^KRS(tN, J. A., that this, and other circumstances of the
case, estal lished such agency.

It appeared \,\>>\.t o'; February 15th, the respondent was chosen by a con-
vention of his i)..i'ty as their candidate. On February '2."<rd, a public
meeting was held by him in a room in a hotel, which meeting was com-
posed of about sixteen iiersons, some belonging to the opposite political
party. A chtirnum Wiis appointed and the respondent addressed the
meeting, as did others also. As soon as the proceedings closed, i. c,
when the speaking was over, nearly .all present crossed the hall, and
went into the bar-room. The respondent followed, first inviting the
few who remained to join them, and then in the bar-room invited
them to drink, which they did, he paying for the liipior. (In February
'27th the mtmiuation took place, and the polling on March l.Sth.

Ui'ld, (at the trial and by the Court of Appeal, CJalt, J., dissenting,)
that this wiis a vi<dation of U. S. O. ch. 10, sec. 151.

Pi-r Hauartv, C. J. ()., and Hirton, .J. A., K. S. (). ch. 10, sec. 151,
refers clearly to a nieeting of electors, whether the formalities of
appointing a chairman or secretary are observed or not.

Held, also, ((J alt, J., dissenting). — That though the act of treating ap'
peared to have been committed in ignorance that it was a violation of
the statute, it did not appear to have been committed in an ignorance
which was in voluntary or excusable.

It appearing that a number of persons visited the district, and that the
object of their visit was to influence the electors by corrupt means, and
tliat there was au organized and systematized plan to employ corrupt

hr *>:

MUSKOKA AND PARRY SOUND.

1U9

oiMM to inflarnce and cRrry the election in various wnyii, and that the
trial jud, i-s were not sntistied thnt the ret'pontleiit «iib i^iinrnnt that
■uch proctices were likely to be committed l>y p<-r»ons acting in
his lichnlf in the conduct of the cUvtion, nnd found that corrupt
priicticce prevailed nt the tifction, nnd declimd to rjlitve the ret-

fondent under sec. 16*2, of the penalties incurred hy him under seo.
61, the Court of A)i)i('nl now declined to interfere with theii decis-
ion. (Gai.t, J., disBciitiiig. )

I'er Haoahtv, C, j,(»., when a corrupt practice is proved the onus is at

. once f<hilt<d to the riFiomUnt to luing Limself within the saving
clause, R. S. 0. ch. 10, sec. 1«2.

Tlir J'ruuiill Ekvlion, <nile p. 88, followed.

I'n- T'tR'ioN, J. A.. iuid«r th«- jrrftnt ninrtmrnt in P. S. O. ch. 10, sec.
ISI, it need not }ie shtvn thnt the meeting in (juertion wiis nssenililed
fur pre ni'iting the jkction of the tuiididate furnithing tie tnttrtain-
nu'nt, liut the meeting refernd to iB a meeting nsftmMKl for the
puipiiBe of promoting the election uf a representative ut the electoral
rlintrict.

/V;(iAiT. J., Refreshment was not furnished to the meeting while it
was asMnibltd, ard tlitreforc there was no dtitnce uiultr U. S. 0.
cli 10, 8tc. lf)l. The nucting wns to nil intents nnd j uij (ipts at an
eiitl, and moreover, evtn conceding the corrupt act, it was dune in
i(;uurauce, which was vuluutury and excusable.

The petition heioin was by George; Paget and Peter Leo
VIcKenzie, persons who voted or had the right to vote at
the election of a member to represent the Electoral District
of Muskoka and Parry Sound in the Legishitive As.sembly
liolden on March 13th, 1883.

It was tiled on May 7th, 1883, and set out that the
iiominHtion lor the said election took place on February
•27th, 1883, nnd the election on March 13th, 1883, when
P'roderick George Fainjuier and James Whitney Bettes
were the candidates, and the former was returned as duly
elected : that prior to, during, at and after the said election,
the said Fau(iuier, by himself and his agents, and other
peisons on his behalf, was and were guilty of corrupt
practices as defined by the Elections Act, and the Contro-
verted Election Act, of Ontario, and of other illegal acts
and practices at the said election, which affected the result
I if the election, and the said election was in fact and in
law void.

It then made sundry other charges as to the reception
and rejection of votes at the said election, and prayed that
it might be determined that the said Fauquier was not
26 — VOL. I. E.C.

rip

200

PROVINCIAL ELECTION.

UtLliM..

duly elected or returned, and that his election was void,
and that the said Bettes was duly elected.

The trial commenced at Bracebridge, on August 21st,
1883, before Patterson, J. A., and Ferguson, J., and lasted
till August 25th.

Particulars wei-e delivered before the trial of the corruiH
practices charged in the petition, number 1)8 of which
stated that William Mason, of the township of Monck,
farmer, had be'^n corrupted by Robert Nichol, of Brace-
bridge, farmer, at Bracebridge, between February 27th and
March 13th, 1883, iu respect of the said Nichol giving or
agreeing to give, or promising, money or valuable consider-
ation contrary to section 149 sub-section (a) of the Election
Act.

The evidence shewed that Nichol came to Mason's house
on the day of the election, and asked Mason if he was going
out to the election, and whom he was going to vote for :
that Mason said (according to his own statement, in joke)
lie would vote for the man who had the most money :
that Nichol then handed to him one of Mr. Fauquier's
cards, saying he was the man that he (Nichol) was going
to vote for, but did not directly ask Mason to vote foi'
Fauquier: that Nichol also stated to Mason that he was
going to make Mason's wife a present, a personal present
from himself, but that he could not give him. Mason, any-
thing because it was election time, and that Mason could
get the present any day he was in Biacebridge : that Mason
went into Bracebridge the night of the election, and there
saw Nichol, who told him to go to a certain shop-keeper,
w'lere he would get the present for his wife : that he went
and received the present, which was some tea and sugar,
and " the like of that," worth about i52, and Mason took the
things home.

Nichol himself was not examined, the petitioners not
having been able to subpoena him.

As to the nature of the evidence adduced to shew the
agency of Nichol, it sufficiently ap[)ears from the judgment
of Patterson, J. A.

MUSKOKA AND PARKY SOUND.

201

Dethune, Q. C, Lount Q. C, and Johnston for tlie
petitioner. Nichol was duly appointed a delegate, and
attended the convention. The respondent said that he
expected his friends to canvass. The question is, did
Fauquier desire to have the assistance of Nichol and the
other people ? The respondent has not called Nichol, but
he would have done so, if Nichol would have denied the
a;^'oncy. We refer to : The Coraiuall Case, H. E. C.
p. .547 ; The South Norfolk Case, ib., at p. 665 ; East
Xorthumherland Crise, ib., p. 387; The Taimtoti Case,
2 0'M.& 11.66; The Salisbury Case, ^4> L. T. 192; The
Bewdley Case, 3 O'M. & H. 145; Ihe Chester City Case, 44
L. T. 285, and as to silence with knowledge being equiva-
lent to adoption : The Borowjh of Taunton Case, 1 O'M. &
H. 181 ; The Boronrjh of WakefieU', Case, 2 O'M. & H. lOli ;
The North Ontario Case, H. E. C, p. 785.

H. Cameron, Q,.Q.,Arnol(U,ai,\v\ Mahaffy,{ov the respon-
dent, referred to The North Ontario Case, H. E. C, p. 304 ;
The WeUand Canal Case (2) ib. 187, 195 ; The North Grey
C(Mt', i6., p. 362 ; The East Northiiniherland Case, lb.,Y>. 387.

': ! 'i'

te-i

August 23rd, 1883. Patterson, J. A. — This charge
which is No. 98 in the particulars of coiTupt practices, is a
cliarge of tlie bribery of ^^'^m. Mason by Robert Nichol,
alleged to be an agent of the respondent, by giving or
agreeing to give, or promising, money or other valuable
consideration, contrary to sub-section (a) of section 149 of
tlio Election Act, R. S. 0. ch. 10. That section declares :

'The following persons shall be deemed guilty of bribery ^
and shall be punishable accordingly : (a) Every person who,
directly or indirectly, by himself or by any other person
on his behalf, gives, lends, or agrees to give or lend, or
offers or promises any money or valuable consideration, or
promises or endeavours to procure any money or valuable
consideration, to or for any voter, or to or for any person
on behalf of any voter, or to or for any person in order to
induce any voter to vote or refrain from voting ;" then
there is the further provision in the sub-section, " or cor-

202

PROVINCIAL ELECTION.

ruptly iloes any such act as aforesaid on account of such
voter having voted or refrained from voting at any such
election." The act which is tiie subject of the charge
here, as proved to have been done by Robert Nichol, comes
nn'ler one or other of these alternatives in the sub-section.
I have no doubt upon the evidence that the offer was
made, and whether it was to Mason himself directly, or
indirectly to him or under the form of making a present
to his wife, or whether it was an offer to the wife herself
on account of Mason voting or refiaining from voting, or
was promised in one form or other, is immaterial. It was
substantially made hy Nichol to Mason. Then the per-
formance of the promise, which was after the polling,
requires to have been corruptly done, according to the
words of the sub-section, " on account of such voter having
voted or refrained from voting at any such election."

Some remark has been made that it has not been distinctly
proved that Mason voted or refrained from voting. I have no
doubt upon the evidence that the goods given to Mason were
given to him under the idea that he had voted ; whether
he had done so I think was not very distinctly proved.
I think it is immaterial whether that is proved or not, if
the evidence reaches so far as to .show that the giving of
the present came within the words of the sub-section i]Uotcd.
If given on account of the voter having voted or refrained
from voting no doubt it is a corrupt practice. The promise
itself is sufficient proof of the violation of the sub-section,
even if that promise were not carried out. The important
question upon the evidence is the agency of Nichol. With
respect to that my learned brother and myself, after hear-
ing the arguments on both sides and discussit.g the matter
together now, with the advantage of having given a groat
deal of attention to the question in other cases, are of the
opinion it is quite impossible to take the ca.se out of tlio
principle on which we decided but recently in the W<:>^i
Sintcoe Case, ante p. 128 as to the charge against Ilarbei'.
There is in the interpretation of the word " agency" in
election cases a difference from the accepteti definition in

; i^;r

MUSKOKA AND PARRY SOUND.

20.1

the ordinary transactions of life, a difference which has
been frctjiiently pointed out in the English cases as well as
those decided in our own Province ; a distinction

between the character of the agency which is to be held to
exist for the purpose of an election, and an agency as it
exists in ordinary commercial or other transactions of
business, where one man acting for another receives
authority, and can only bind his principal by acts done
within the scope of the authority which is given to him.
There is a difference between agency of that character and
agency for the purposes of an election. In the case of an
election the agent, constituted by whatever acts are siiffi-
(jient for the purpose, may bind his principal by acts which
are not only outside the scope of any authority expressly
given to him, but which may be directly contrary to the
express directions of the person whose agent he is held to
be. But besides the distinction which is given in the
English cases and our own, there is this to be kept in view
when discussing what is sufHcient to establish the position
of agent in regard to any person charged with a violation
of the Act — the mode in which these election contests are
almost universally, if not quite so, carried on in this
country. Where as in this case a number of persons
assemble together, whether you call it by the name of con-
vention, association, or any other, when they do assemble
for the purpose of selecting a candidate to contest the con-
stituency as the representative of a particular party, and
when the person chosen accepts that nomination, he does
so because he has been selected by those persons ; and
whether they put themselves forward or are put forward
for the purpose as representative persons, he puts himself
into their hands necessarily in accepting the nomination
which they make, not putting himself forward and asking
their support, but coming forward because they ask him
to consent to run, or as it may be more appropriately put,
to consent to be run by them.

The construction which may apply here and lead to the
<lecision that one person or another is agent of the can-

H'»'J M'

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204

PROVINCIAL ELECTION.

tlidate, in England might in a few cases only be held to-
apply. Of late years there seems to be more tendency in
Kngland, as far as one can judge, to approach to some
extent to the position to which we have advanced, and
necordingly we find in one or two of the decisions follow-
ing' the election of 1880, references to the circumstances ol
the candidate being put forward by an association as their
tanilidate, and the agent, on that account, requiring but
slight recognition on his part. There is evidence here, as
there was in the case T have referred to in West ISimcoe,
of the action of the candidate. When he accepted the
nomination of the convention he addressed .some remarks
to those who were there, intimating in some form of words
that he looked for their active exertions in carrying on the
contest. The evidence of Mr. Holdeu is direct with respect
to that. The candidate hin»self does not recollect, and did
not suppose at the time of giving his evidence that he used
words of the character sjioken of by Holden, but he thinks,
to give his own language substantially, he did expect his
friends to work, and, although he talked of making a per-
sonal canvass, that amounted simply in m}' opinion to an
expression of his intention to make every exertion. That
resolve he appears to have very energetically carried out,
holding altogether thiity-tvvo meetings between the time
oi' the nomination by the convention and the election, and
from anything he said, whilst he expressed his intention
actively and energetically to personally exert himself, I
cannot .see that it can bo inferred that he at all intimated
to those who were there that he did not expect them to
also work, that he did not rely upon them doing what they
could for him, much less that he ever gave the slightest
intimation to them that they were not to work, or that lie
repudiated anything they might assume to do. While
there is evidence, therefore, and evidence that strikes us
as reliable, that remarks of the chaiacter Mr. Holden
speaks of were addressed to those present, I am not at all
dis|)Osed to say that any express declaration of the kind
would under the circumstances be necessary to constitute

*'r>l

MUSKOKA AND PARRY SOUND.

205

the relation of agency in those gentlemen who were
there actively engaged in the convention and taking part
in the nomination of the candidate.

To hold the contraiy, one would have to assume that in
answer to the nomination which had been unanimously
(nven the candidate, he gives or conveys to them in some
way an intimation that the work is entirely to be done by
him, that when they asked him to be their candidate, the
re|)resentative of their and his party, that was not to be
treated on their part as an offer to exert themselves to
elect him as the representative of the riding, or an accept-
ance on his part of such offer. In order to enable us to
hdld that anything took place on such an occasion amount-
iiif;- to repudiation by the person who is selected to be the
candidate at the election, or who is requested to allow him-
self to be put in nomination as the candidate of the part^-^,
something express in the nature of repudiation must be
shown. Nothing of the kind was shown to be intended
here. To test the question in this way : Mr, Nichol went
there in some way or other ; he was there ct all events as
one of those actively concerned in the nomination. Sup-
j)ose on leaving the meeting he meets some parties outside,
and talks to one of them, saying, " Mr. Fauquier has agreed
to lie the candidate — will you vote for him ?" Could it be
said Mr. Nichol was not authorized to canvass the man on
the occasion ? I think it would require exceedingly strong
evidence to show he was not. If he was authorized to
canvass, by that I mean a king a man for his vote, then
his agency is covered. That constitutes the agency. Ihe
iiuestion is, whether the person in question is authoiized
to canvass for the candidate. Without any reference,
therefore, to acts done by the agent in pursuance of his
agency, I am prepared to hold that the agency of these
persons who are actually attending and taking part at this
convention is established in the absence of anything show-
ing a repudiation or rejection of the offer of service which
is implied by the very fact of their attending and making
the nomination. I adhere to the ruling indicated in the

Wi!

; !.

!ir ■'■ ■ •

2O0

PROVINCIAL ELECTION.

judgment in the case delivered a few days ago at West
Simcoe. I may repeat the remarks I then made that it
was not at all necessary for the purposes of that decision,
to say how far any intimation of the desire of the candi-
date, or his friends who supported him, would extend to
create the relation of agent with respect to other friends
of the party or the candidate who were not present or
taking part in the proceedings of the convention. Whether
it would or would not is a matter to be decided in each
particular case, and has to be governed to a great extent
by the circumstances of the particular case. We are
simply dertling with the case before us in which the per-
son attended the convention. While it is not necessary to
look to the acts done by the alleged agent, acts done by
the person charged as agent may, a.s I have endeavoured
to point out in the judgment to which I have been refer-
ring, become very important on the question of agency
where recognition by the candidate of the person or the
acts done is what has to be proved. Where the appoint-
ment of the agent is proved by direct evidence the acts
done themselves become of little importance, because the
first act done would be just as much the act of the party
as agent as any subsequent act. In this cause there is
evidence of a considerable amount of activity on the part
of Nichol, which is evidence, at all events, of his under-
standing, whether it was the understanding of all the
frientls or not, that at all events he was at liberty to do
what he could on behalf of the candidate. We hold there-
fore in this case a corrupt act by an agent of the candidate
has been established. It appears that the character and
extent of the act is confined according to the account which
we have of it, to the immediate transaction between Nichol
and the individual, and at present there is certainly no
evidence before us of any knowledge or consent on the
part of the candidate to the corrupt act by the agent.

Ferguson, J. — While I entirely agree with the remarks
which have fallen from my learned brother, I am disposed

MUSKOKA AND PARUY SOUND.

207

to lay more stress on what passed immediately after the
mooting at Rosseau as constituting agency. Mr. Fauquier
Avns informed that the convention had nominated him, and
he made a speech. It is not said whether he thanked the
convention or the memhers of it at the time, but some-
thing of the kind passed, and he then said, (according to
5Ir. Hnlden,) that he hoped his friends would work and do
all tlicy could to secure his return, or something to that
effect. Those who had made themselves active and were
members of that convention, whether they were formally
Acknowledged or not, were certainly included in the
general expression " friends," and I cannot conceive that
the stntement made there was less than intimating to those
present at the convention, "I expect you to do all j'ou can
to secure my ret'irn." Mr. Fauquier himself says the fact
is he did expect the friends to work for him, and he used
the words " work it up." He said: " I thought my friends
would canvass, would mention my name whenever they
met people, and work it up." I am dispo.sed to lay more
stress on that particular point, what was said by Mr.
Fauquier immediately after the nomination, than ray
learned colleague has laid upon it. I am disposed to look
upon that in effect and in fact as authority hy the lespon-
dent to those people to act as agents for him. Suppose
that on the way home they had been mentioning hia name
to voters and canvassing, could it be said they have not
authority so to do ? I think not. It has been held, ove r
and over again, that the test of agency is whether there
was authority to solicit votes. It seems to me these parties
had authority from the candidate to do that. Then, if there
was authority to do that, and while doing it a corrupt act
had been committed by one of them, the candidate would
he liable for that corrupt act. I simply desire to say that
I lay more stress on that part of the evidence than ray
colleague, and I agree in all that has fallen from him.

After giving judgment as above, the Court next pro-
ceeded to deal wnth certain charges made against James
27 — VOL. 1. E.G.

;• i?

1Kb

I' Xi

ifr

iwll

208

PROVINCIAL KLECTION,

xVnderson and G. F. Marter, charging them with takinrr
certain persons out to a polling place in the Township (»f
Gibson, an unorganized district, for the purpose of voting,
furnishing them with meat and drink, and paying their
expenses.

These charges thus raised the question of the right of
voting in the unorganized districts, as well as of the
agency of Anderson and Marter, and the quality of their
conduct as viewed in the 'ight of the Election Act.

One of the persons thus conveyed to the polling place
in the unorganized district was named Johnstone, and he
was the onlj' one who was allowed to give his vote. This
he was permitted to do on the ground that he owned pro-
perty in Baxter, another unoiganized township.

The effect of the evidence given sufficiently appears from
the judgments.

J. Bethune, Q. C, and Johnston. As to the right to vote
in unorganized territory, " Such place," in R. S. 0. ch. 10,
sec. 92 (2), is to he read as " such municipality, township,
or place in Muskoka and Parry Sound as have no assess-
ment rolls, " place " being the largest word includes the
others. The " house " must be in the unorganized place
Then as to the one who voted as " owner," the real estate
must be in some of the places in which there is no assess-
ment roll. As to corrupt practices, sections 153 and
154 have been violated. The evidence shews clearly that
Anderson and the others were agents. Fauquier did not
keep aloof from Anderson. The offence was complete so
soon as the contract of hiring the teams was made : Yoinvj
v. Smith, 4 S. C. R. 494. As to Johnstone having received
meat and drink on account of his being about to vote or
having voted, we refer also to East Korthumherkind Case,
H. E. C, 577 ; The Stormont Case, lb., p. 21 ; The Lichfield
Case, 1 O'M. & H. 22 ; The Guildford Case, 1 O'M. &
H. 15.

MUSKOKA AND PARllY SOUND.

H. Cameron, Q, C, and Aiitoldi. An to the right to
vote, the qualification in the unorganized parts is on a
(liHlient basis fioni tliat in the unorganized parts. A
man owning property in one organized township l)as
not the right to vote in any other unorganized township
if there is a polling place in the first-mentioned township.
As to the other points, we admit that the offence is com-
plete when the teams are hired. Unless, however, the
persons carj'ied had votes, the section of the Act has not
lietu shewn to have been violated, and the onus is on tlie
petitioner to shew that these persons were good voteis.
Johnstone's case is unlike the others. Anderson, however,
was not the agent of Fauquier. He had no connection
with him, beyond the fact that very shortly before the
election Fauquier knew Anderson was working on his
behalf, nor is it shewn that Fauquier knew of or author-
ized any particular act of Anderson's. Probably Fauquier
never contemplated that any voters should be taken from
Giavenhurst to the unorganized tracts.

I- .''1

The learned Judges concurred in delivering judgment to
the effect following :

(1) That a person, the owner of real estate of the value
of $200 or upwards, anywhere within the electoral district,
lias the right to vote at any polling place in the unorgan-
ized townships in the electoral district where he may
liappen to be on polling day.

(2) That where the real estate on which such person
relies as his qualification to vote is situate in one of the
unorganized townships, his right is to vote in any of the
unorganized townships, without being restricted to the
township where his property may be situate.

(8) That to entitle a })erson to vote in the unorganized
townships on the qualification of householder, he must
be a householder — that is to say — have his qualification
as such, within the limits of the unorganized town-
ships.

:?»;

II?

210

PROVINCIAL ELKCTION.

Upon the further question, in regard to the hiring of
teams for the purpose of carrying |)or.s()ns from Gravcm-
hurst to the township of Gihsoti with the intention of
voting, and the supplying of meat and drink to those per-
sons:

i ■:
.'. "If

Patterson, J. A., held that the qualification of the
persons, or their right to vote, is somethijig (juite forei^jn
to section 154 — that the hiring^meant is to convey persons
with the intention of their voting — and that here thoiv
was a violation of that section ; that section 153 requires
that the persons to whom meit and drink are given must
bo voters; he did not think he could extend that to section
154 ; Johnston, however, came witliin section 153, so far
as supplies given to him were concerned, and he did not
see any escape from holding that the section was violated.

Patterson, J. A., then proceeded as follows :
Then comes the question as to whether tliis, which was
a corrupt practice within the term of the statute, was done
by an agent of the responrient. I must say, speaking for
myself, and I think probably speaking also for my learned
brotlier, there a^-e very few cases in which agency has been
held proved by anything short of direct evidence of the
appointment, in which the evidence of agency is more
conclusive tlian in this case wdiich is before us. We have
here one leading fact, namelj% that this particular kind of
service had to be done by some one. Of course it was
not expected that every man who was a householder, and
could not vote in Gravenhurst, would himself find his way
out to Gibson. That is'a matter which received no support
at all from experience or the likelihood of things: it
receives no support at all from the evidence given by Mr.
Marter, who was one of the most active men in that pai-
ticular neighborhood ; nor from what actually took place,
according to the evidence, there or elsewhere. The people
who had not votes in Gravenhurst had at least to be asked
to go out. When we come to discuss the question of the

MUHKOKA AND PARKY SOUND.

211

agency, the funrlamental fact which scttlos the (juestion in
ordinary cases, is whether the persons wijo mo charged as
agents wen; the friends who were authorized on the part
of the candidate to solicit the votes of these people ; I do
not say illegally and corruptly, or to use any particular
{•(tiirse with tliein, but to negotiate with them upon the
8'ihject of tlieir votes ? Now, we have the evidence dis-
tinct and clear, that it was deemed a matter of conse-
(|U('nce to get out this particular class of people. We
have, independent of the question of this particular class
of people being taken out, the fact which appears that
something must be done for the purpose of what is called
v/orking the election. We liave the statement of the
respondent himself, who .shows that while he undertook
to do all he could him.self, while he was very active, ener-
(fetic, and laborious in going from place to place, and liold-
iug meetings atconsideiable distances apart — two meetings
every day during the period between the nomination and
the polling ; that these other details he was not concerned
in cairying out. Then we have fuither the evidence of
Mr. Marter, which .shows that he and otheis there were
active. It shows that Anderson and a number of others
from outside the constituency came there for the purpose
of a.ssisting in the election ; that from the first they were
in direct communication and co-operation with Mr. Marter
who was a men ber of the general association, and that they
concerted measuieswith him (Maiter) ; that the liist thing
(lone was to maj) out the district, and to maik out the
points wliere difiererit parties were to go tor the purpose
of carrying on the operations in which they were to be
engaged ; iliat in consequence dl'this concert and organiza-
tion they go cut in difl'ercnt directions, where each man was
presumed to do what he could towards I'urtheiing the elec-
tion of the respondent. Then we have the additional fact
that, thiee or four days before the day of this expedition, the
respondent hin;self comes to Gravenhurst, and is there in-
formed by one Madill, who is there with Andei son, that they
were assisting in the election. There is so far Irom being any

212

PROVINCIAL ELECTION.

assertion on liis part that Anderson had no rifjht to intor-
fero in the election, or to go out and do what lie^could not
do himself, an absence of any such disclaimer ; in fa't, the
evidence is the other way. There is not a .shadow of doulit
on the evidence, that the assistance was not only not
repudiated, hut was accepted, and was made available on
the part of the respondent. To hold anything else would
be to do violenc(» to the ordinary capacity one is supposfil
to have in drawing inferences from the evidence given.
There is, on the whole of the evidence given, respectiiii;
these people, Anderson as well as the rest, but one con-
clusion to be arrived at, and I think tlie grounds for that
conclusion have been more distinctly and clearly .sliown
than in most cases of the kind, that Anderson must be
held, and thoie persons acting with him also, to have b(M;n
agents of the respondent. There is a good ileal of evidence
in connection with them ; whethei* it is evidenf'e that
becomes important to discuss or pronounce upon just now,
1 have .scarcely any decided opinion, because it is evidence
which may have to ))e collated with evidence that has
been given with respect to other charges upon which we
have yet to liear more, both itj the way of evidence ami
argument, that is evidence of this contest being carrieil
on by funds supplied from elsewhere, through these per-
sons — by which these particular operations in question
were conducted, and by which the other things they
thought nr'cessary to be done were provided for — such as
the paying for canvassing, w^hich was done by Marter with
money supplied by Anderson, and so forth. I do not
think, for the ])uipose of disposing of this particular charge,
namely, the commi.ssion of corrupt practices by an agent
of the res))ondent, it is necessary to go into detail on the
(juestion of the mode in which this part of the election was
conducted ; it seems to have been carried on with money
wherever it came from. It may become of importance
when we hear more about it, as probably the lespondent
may be able to produce these people through whose hands
the money wmt. We know at present that money did
come from somewhere, and was spent in this particular way.

MITSKOKA AND PARIIY SOUND.

2i:i

FciiorsoN, J. — I have but little to add ; one view there
is,ii<>w»!ver, that T am not quitif sure my collengiu; entertains;
it is this, apart from any coniK etion with the particular trarin-
Ri^tioii uiiderconsideration.tliit is the sendinj,'of voters to the
»ini>r<,'anized territory, the hiring of U^ams, and the fupplyinji;
ofmi'als.I think the ageney of Anderson is proved, supposing
there were no more than what occurred hetween Anderson
mid tlie cnndidate himself. He was told in the forenoon
Anderson was then', and for what purposi* ; he went to the
villa;,'e to hold his meeting ; he <lid not stop in the same
hotel in which Anderson stopped ; after the meeting, know-
iiii; that Anderson was in the other hotel, an<l knowin*; the
purpose for which he was there, he went to his room — the
subject of the conversation was the meeting, the election,
and the probable rijsidt ; there were people there, and there
wore lists there ; I think, if there were not more — and thei'e
is a great deal more — that would be sufficient to ju-ove
a;,'ency ; I do not see how it can be otherwise on the evi-
tlt'uce, and I do not see how it ought to be otherwise, in
cointnon sense. Then, assume Anderson to be an agent, and
without taking into account any more than that Anderson
furnished mimey for doing what would be a corrupt practice
b) an agent — that would be a corrupt practice on his part :
that is the view which has occurred to me from the
bt'giniiing, and I think it is the correct view.

Certain personal charges against the respondent Fau-
quier were then taken up, by which he was charged with
viohiting sections 1.51 and 1.52 of the Election Act in the
matter of px'oviding and paying for meat, drink or refresh-
ments.

After taking evidence the Court adjourned until Septem-
ber 3rd, 1883, when judgment was delivered at Toronto.

The judgments fully set out the effect of the evidence.

Pattb:rson, J. A. — The respondent, Mr. Fauquier, was
shown by his own evidence, as well as by that of other
witnesses, to have violated section 1.51 of the Election

ii..

I?.

IJ!flR|fll». — "»■

214

PllOVINCIAL ELECTION.

i\ct, which forbids any candidate or any other person to
provide or furnish drink or other entertainment at his
expense, to any meeting of electors assembled for the pur-
pose of promoting the election, previous to or during such
election.

The occasion was a public meeting, held by the respon-
dent, at a place called Commanda Creek ; them 'feting was
held in the dining-room of a tavern kept by one Fitzger-
ald, and consisted of about sixteen persons, who were nut
all of the same political party with the respondent. As soon
as the proceedings closed (that is to say, when every one
had spoken who vvii^hed to address the meeting on either
side) nearlj' all those present crossed the hall and went
into the bar-room ; the respondent followed, first invitinn;
the few who remained, including one gentleman who had
spoken in opposition to him, to join them ; and then, iu
the bar-room, he invited them all to drink, which they
did, the respondent paying for the liquor; this was on the
23rd of February ; the respondent had been chosen as their
candidate, by a convention of his party, on the loth of Feb-
ruary ; the nomination day was on the 27th of February,
and the polling was on the 13th of March.

We had, before the investigation of this charge, declared
the election void, by reason of corrupt practices committed
by agents of the respondent; had this not been so, it would
necessarily have been avoided, under the efl'ect of section
158, by the violation by the candidate of section 151,
which is a corrujjt practice.

The questions which we reset ved for consideration, and
with whirh we have now to deal, are those which arise
under sections 161 and 102. The former of those sections^
in addition to the avoidance of the election, attaches to
the candidate found guilty of a corruj)t practice, the inca-
pacity, during the next eight years, of being elected to,
and of .silting in, the Legislative Assembly, and of being
entered in any voters' list as a voter, and of voting at any
election, and of holding any office at the nomination of the
Crown, or of the Lieutenant-Governor of Ontario, or any

MUSKOKA AND PARRY SOUND.

215

niiiiiicipal office; but section 162 provides that in certain
circumstances the candidate shall be relieved from this
severe penalty.

This section declares that, if it appears to the Court or
the judges trying an election petition, that an act consti-
tuting in law a corrupt practice was committed by a can-
ilidate, or with his knowledge and consent, he shall not be
>ubject to the penalties and disabilities under the preced-
ing section, provided four things occur : —

Firstly. The act which constitutes in law a corrupt prac-
tice must have been committed, or consented to, without
any corrupt intent.

Secondly. It must have been committed, or consented to,
in an ignorance which was involuntary and excusable.

Thirdly. The evidence must show that the candidate
honestly desired to have the election conducted according
to law.

Fourthly. The evidence must also show that the candi-
date, in good faith, endeavored, as far as he could, to have
the election conducted according to law.

This is the tirst time, so far as we are aware, that it has
become necessary to apply these provisions to the facts
proved upon the trial of an election petition ; we have,
naturally, considered them with anxiet}', and may have to
refer at some length to mattei's which have aj)peaied from
the evidence given before us during the trinl, and which
seem to bear upon the application of the section to the
case of the present respondent.

The respondent was, as I have said, chosen by a
laocting of members of the Conservative party, which is
.sometimes spoken of as a convention, on February 15th.
He at once addressed himself energetically to the work of
his canvass, and he held no fewer than thiity-two meetings
in difierent parts of the very extensive electoral district
during the four weeks which intervened between the day
uf the convention and the polling day, holding generally
two meetings a day. There is nothing before us to suggest
that in the selection of the respondent or his acceptance of
28 — VOL. I. E.C.

■i.

Pfr

216

PKOVINCIAL ELECTION.

that nomination, anything was in contemplation but a fair
and honest contest ; if it assumed a different character at a
later stage, that may have been the doing of others than
the respondent or those with whom he acted at the outset;
but it is impossible to consider the questions befor'^ us
without reference to those later proceedings. It is cleai.y
established that a number of persons, who seem to have
had no connection with the district, came into it some eight
or ten days before the election day, for the purpose of
aiding in the contest; one party came to Gravenhurst ;
there were eight or ten of them, the leader being appa-
rently a Mr. Anderson. We are indebted to Mr. Marter
of Gravenhurst, an active and influential supporter of the
respondent, for an account of some of the proceedings
there, which in its candour and honestv was in marked
contrast with the evidence given by some of the other wit-
nesses. Mr. Anderson and his companions, after conference
with Mr. Marter and others of the party, separated, Ander-
son remaining at Gravenhurst, and the others going to dif-
ferent localities in the district. Another party, which in-
cluded persons named Shields, Pringle, and Smith, came to
Braeebridge, where they were in communication with some
of those friends or agents of the respondent with whom
he appears to have more directly associated, particularly
Mr. MahafFy, his financial agent, and Mr. Roper, who con-
ducts a private bank under the name of the Muskoka
Banking Company ; and also with others who, though not
so directly associated with the respondent, wert; clearly liis
agents in contemplation of law, as we held in the cases of
Messrs. (.'hantler. Perry, and Nichol. The evidence leaves no
doubt upon our minds that the purpose of these persons
who came from outside the district was to influence the
election bj' corrupt means. As far as evidence was given
of actual transactions, the expenditure of money either in
direct bribery, or in other ways which the statute declares
corrupt, was shewn in several instances ; there was proved
the declaration of one person, through whom money was
thus disbursed, that the object was to carry the election it'

MUSKOKA AND PAURY SOUND.

217

money would do it ; the disbursement of money by Ander-
son was specifically proved, although I believe the only
corrupt act into which it was traced was tlie hiring of
teams to take persons from Gravenhurst to an unorgan-
ized township to vote, and the providing for their expenses.
A similar expedition from Bracebridge was provided for
by nionoy paid through the hands of one Cosgrove ; it did
not appear who he was, further than that he did not
belong to the district. He was not shewn, by direct evidence,
to be connected with Shields or his party, but there was
evidence enough to justify the inference, if it were neces-
sary to find the fact, that such a connection existed. The
evidence is that of Mills who went in charge of the expe-
dition. He had been introduced to Shields at the British
Lion on the occasion on which he was engaged to go with
the party. He had there met a number of other supporters
of the respondent. He has mentioned the names of some
of them, including Mr. Roper, Mr. Perry, and a Mr. Tookey,
the Reeve of the Township of Macaulay, in which town-
ship Mills lives ; he tells us that the subject of the expenses
of the expedition was not mentioned in the room where he
met these gentlemen, but outside he spoke of it to Mr.
Tookey, who assured him that the expenses would be paid.
He conveyed that assurance to the men who went, and it
was made good by the a|)pearance of Cosgrove with the
money.

A sum of money, which was spoken of by Roper as
■"?1,000, was remitted to him, or to the Muskoka Banking
Company, by a bank draft, and was handed by him to
Shields. This was one of the incidents respecting which w^e
felt we were not put in possession of the whole truth. As
told to us the transaction was far from bearing the aspect
of an ordinary business transaction. Mr. Ro[)er toid us
that Mr, Shields enquired if he could cash a cheque for
one thousand dollars ; and being told that he could, there
comes, after some days, a bank draft not i)ayable to Shields
or requiring his endorsement, but payable to the Muskoka
Banking Company ; and, as far as confided to us, without

III

;!
■I

218

PROVINCIAL ELECTION.

any advice or information about it but what Shields verb-
ally gives to Roper, who upon that voucher alone hands
liini over the money. The inevitable conclusion that tliat
money came for election purposes is entirely consistent
with what is proved respecting the illegal expenditure of
moneys, even though no part of the specific remittance
may be traced. These are not the only bits of evidence on
the subject of the money sent into or used in the district ,
amongst other information there is that given by Mr. Burk
respecting his trip to Lake Nipissing with some S4U0 in liis
pocket; although finding, as I gather from his account,
that he had been anticipated by some one else in the work
of bringing forward the voters working on the Camulian
Pacific Railway, he only paid his own expenses juid
brought back the greater part of the funds. Then there is
the evidence of the payments on which we have had to
pronounce, and of sums mysteriously received by voters
through the post office or otherwise, and the evidence of
the taking of trunks containing whiskey with them by
those persons or some of them who went to promote the
election in various parts of the district. The result of all
this is the conviction that, to whomsoever the scheme is to
be attributed, there was an organized and systematized
plan to employ means which are either corrupt in them-
selves or are stigmatized by the statute as corrupt, in influ-
encing this election ; and that it was part of the system to
bi'ing those means to bear as generally as possible through
all parts of the electoral district ; this circumstance, apart
from the actual proof of individual acts of corrupt or
illegal character, has to be borne in mind in our present
enquiry ; it has also to be remembered that the subject of
the vote in the unoiganized localities has been, as explained
to us by Mr. Marter, a part of the general plan decided
upon by the members of the Conservative party in the dis-
trict itself. He gave us to understand that the Conserva-
tive party had formerly acted upon the view of the stat-
ute adverse to the right of a man to vote in an unorgan-
ized township when he was not a resident householder in

MUSKOKA AND PARRY SOUND.

219

any unorganized place, and when he did not own property
anywhere in the district of the vahie of $200, but that as
the Reform party had polled such votes, the Conservatives
had decided, partly for that reason, and partly from some-
thing understood to have been said in the Legislative
Assembly by Mr. Mowat, to poll such votes on this occas-
ion. He did not speak of this as a matter which ha«l been
debated at any meeting of the Conservative Association,
but as something which had been talked of, and had come
to be understood as part of the plan of the campaign. This
was all known to the respondent. Mr. Marter also
explained, and indeed it was rather made a point on the
part of the respondent when one of these charges was
under discussion, that the voters, or assumed voters, could
not be got out to the remote polling places without hiring
teams and supplying provisions for the men. The respon-
dent spoke as if he had taken it for granted that enough
teams would be volunteered by their owners to take these
people to the polls ; but, if we accept the statement that he
knew so little of what practical men like Mr. Marter speak
of as a matter of course, and which the fact that the teams
had to be hired when the time came proves to have been
a necessary part of the undertaking, there still remains the
supplying of the provisions, and in that way paying the
expenses of the voters which some one had to do, as there
is no suggestion that the voters were expected to pay their
own expenses, or that they were people who had the means
to do so.

Now, with this glance at the general character of the
contest as conducted by some of those most active on the
part of the respondent, let us return to the section 162.

Of the four things which have to concur for the relief of
the candidate, the first two relate to the time of the com-
mission of the corrupt act ; the other two to the whole
contest. The act may be committed or consented to inad-
vertently, without any corrupt intent, or in an ignorance
such as the statute speaks of, whatever its precise mean-
ing may be ; but that will not excuse, unless there is

i»

l.l

.ill

F<S jif'p*^

220

PROVIiNClAL ELECTION.

through the whole contest the honest desire, and the hon-
est endeavour to have the election conducted according to
law. How are we to deal in the present case with these
I;ist requirements ? Is it possible to reconcile the facts to
which I havead verted — thesystematicand designed infringe-
lucnt of the law by those so active in the election as those
si/aiigers to the district and those who acted with them
were — all of whom were persons for whose acts, as liis
agents, the respondent would most probably be responsible
— with the honest desire and the bond fide endeavour, on
the purt of the respondent personally, to have the election
CO] ^^■ \ in a different manjier ? Such a conclusion
mi' V- be impossible in every case. It is possible to
imagine the case of a gentleman who offers himself, or
accepts an itr'"'<-.ation, to run as a candidate, with the
strongest desire nnd determination to observe in good faith
all that the law requires, finding the cause taken out of his
hands by persons actuated by a different spirit, and with
whose course he refuses to concur. Such supporters might
jeopardize or destroy a good cause ; but it would be unjust
to visit personally with the consequences of their miscon-
duct the candidate against whose desire, and in spite of
whose endeavours they had persisted in their corrupt
practices. We have considered tho evidence in this case
with the desire to find ground for regarding the respondoiit
in this light ; but we regret to have to say that we cannot
do so upon any fair treatment of the evidence. It may be
that, even if we assume that the respondent commenced
his contest with no idea of violating the law, and that the
efforts made by others to aid by irregular methods were
only known to him, if they were known, at a late period,
it would bo expecting too much from him to look for active
steps by way of public denunciation or repudiation of the
of the powerful aid they were bringing. The temptation to
benefit by their conduct may have been irresistible, or
other causes than his personal wishes may have prevailed
to check any attempt at interference with those who hud
come to take part in the contest, if not to control it ; what-

MUSKOKA AND PAURY SOUND.

221

♦■ver the reasons were, we have to look at the fact that no
repudiation or disclaimer is shewn.

It would be rather taxing credulity to .ask us to assume
that while a course of the character I have alluded to was
being pursued in so many parts of the electoral district by
pei-sons who were strangers there, with little or no pretence
of secrecy, and while the respondent was passing from
place to place canvassing and holding meetings, no whisper
of it should have reached the ears of the person chiefly
interested. One could not so assume, without tolerably
convincing proof ; and under the statute affirmative
evidence is required ; but, unfortunately for the respondent,
whatever evidence there is accords with the presumption
of his knowledge ; not necessarily knowledge of any
j>pecific act of a corrupt nature, but knowledge of the
general nature of the tactics likely to be resorted to. That
evidence is mainly what we are told of the interviews of
the respondent with Anderson and with Shields ; that
with Anderson is spoken of by the respondent himself, and
by at least one other witness, I think, Mr. Marter ; election
matters were the theme of their conversation ; though, as
it was late one evening, after the respondent had done ;
bard day's work, little may have been said ; nothing iu
deprecation of illegal practices such as Avere then planned
at Gravenhurst, and such as Mr. Marter tells us could not
be avoided in sending men to the unorganized townships,
is .shewn to have then been said; yet, we should possibly
licsitate to hold, from what we know of that interview
alone, that the respondent knowing or suspecting that
corrupt practices were being resorted to, connived at them.
Hut the interview with Shields is told in a diflerent way.
We have the respondent's own avowal that he purposely
avoided the mention of election matters to Shields, and
that Shields was equally guarded in speaking to him ; in
the face of this, we cannot see our way to say that it is
shewn by the evidence that the respondent, in good faith,
endeavoured as far as he could to have the election conducted
according to law, or, that he lutnestly desired that these

iii

iM:

rr^

222

PROVINCIAL ELECTION.

p'ioplo slioiiM confine thoir exertions within the limits
wliich the hiw permitted ; it is not enuuglj to say tliat he
carefully enfleavoured to avoid personally doing, or invol-
ving liimsclf in any illegal practices; it is his desire and
endeavour with reference the general conduct of the elec-
tion which we have to consider.

Thus we ai'e compelled to hold that the respondent has
not broii'dit himself within either the third or fourth of
the requisites of section 1G2.

It is possible that our view of the evidence as it applies
to these may influence our conclusion as to the first and
second requisites ; but, upon them also we are unable to
come to a decision in favour of the respondent.

First. Was the treating of the meeting done without any
corrupt intent ? An attempt was made to bring the ease
within the doctrine held in some cases in our courts wlu-n,
upon the (question whether a particular instance of ti-eat-
ing was or was not corrupt, weight was given to the fuct
that tlie custom of treating was very general, and only a
token of good fellowship, and that the person charged
habitually treated persons whom he met at taverns. The
respondent was asked as to his habits in this respect, and
assented— though, as it struck me, but faintly — to the sug-
gestion that such was his habit. I may be allowed to say
that the respondent is a gentleman of whom I had formed
a Ijetter opinion than that which he then claimed for him-
self, and I .should be very unwilling to believe that he had
so far receded from the ti'aditions which he must have
brought with him, as to have fallen in with the vicious
and destructive custom of which we are compelled to hoar
so much ; but the cases in wliich the matter has before
ai'isen were cases in which it was necessarj'- to shew affir-
matively that the treating was corrupt. Even from that
point of view they gave, I think, quite as much effect a.s
could reasonably be given to the proof of the habitual
character of the treat. For my own part, were the argument
addressed to me that a man ought not to be charged with
a corrupt intent because he felt compelled to treat to avoid

MUSKOKA AND PAUKY SOUND.

22:{

tlie imputation of being mean or unsocial, I slionld feel it
lianl to resist the reply, that if he feared that imputation
would hurt his election, the corrupt intent in treating was
jiot negatived.

In the ]5re.sent case we have to look at some circum-
stances which I have not yet stated. The treating on
Fehruary 23rd, rx Commanda, was not the only iustance
of which thei'e \pas evidence, although it was the oidy one
with respect to which we decided that a meeting was
treated. A couple of days earlier the respondent had had a
int'oting at Burk's Falls, and after it was over he ordered
li(|iior for a number of men who were with him in the
sitting-room of a hotel; one of them, a Mr. Sharp who
was a personal friend though a political opponent, ox|)ressl3'
called ihe attention of the respondent to the danger of
violating the statute by treating. It is not perfectly clear
whether he had in his mind the tre.itincr of a meetinf;
under section 151, or the corrupt act of treating by a can-
didate forbidden by section 152, or indeed that any specific
provision was thought of. The fact is not denied that
attention was called to the subject, and the respondent
candidly tells us that he had reasoned about the matter,
though, as he says, in ignorance of the precise provisions of
of the statute ; and thinking that until the formal nomina-
tion had taken place he was not a candidate, he concluded
tliiit until that time he might safely continue to treat. It
is very difficult to perceive how we can, consistently with
what the respondent thus told us, regard the treating
as fiee from any design on his part to influence the
I'lection. It was at his election meetings, and it was con-
tinued, or intended by him to be continued, up to that
time at which, under his erroneous reasoning, he considered
he should for the first time be properly considered a candi-
date. I am by no means convinced that if the respondent
had happened casually to drop into a gathering such as
one of these, he would as a matter of habit or custom, or
under any idea of the calls of good fellowship, have felt it
incumbent on him to treat all present; and, as I have
29 — VOL. I. E.G.

22'*

PROVINCIAL ELECTION.

IT- ■:

K I $^ ■*

already sakl, I should hesitate before holding such a con-
Hidoration at all conclusive; this is more especially so when
the absence of corrupt intent has to be affirmatively
shown.

What is the exact force intended for the words, " an
ignorance which is involuntary and excusable," I do not
pretend to say ; I do not know whether ignorance of fact
or ignorance of law is meant : probably both. After
deciding, as we do, upon the other requisites of section 162,
it is not important to enquire closely whnt the phrase
should be held to mean. The respondent told us that he
had been promised a copy of the Election Act, but had not
received it. He would scarcely have found in it a correction,
in terms, of his notion that a man who was soliciting the
votes of the electors for the coming election was not a
candidate, though he would have seen that the prohibition
to furnish refreshments to meetings of electors, under sec-
tion 151, is not confined to candidates, but extends to all
persons.

To hold that with the knowledge that there was such
an Act, and with the means of procuring a copy for himself,
or of obtaining access to one, or advice from a legal fiieml,
and particularly after a warning on the precise subject
such as that given by Mr. Sharp, a repetition of the prac-
tice could be said to have occurred in an ignorance which
was either involuntary or excusable, would be to treat the
section as relieving the candidate fiom the exercise of
ordinary diligence and ordinary intelligence. If so great
latitude in the application of the statute could in any case
bo justifiable, it would certainly not be so in the case of
one who, like the respondent, is a gentleman of educatiou
and intelligence.

I may sum up or recapitulate the results of our consider-
ation. We find that the act of the respondent, in furnishing
drink at his expense to a meeting of electors assembled at
Commanda Creek, for the purpose of promoting the election,
which constitutes in law a corrupt practice, while it appears
to have been committed in ignorance that it was a violation

MUSKOKA AND PAllUY SOUND.

225

of the statute, does not appear to have been coininitted iit
an ignorance which was involuntary or excusable.

We are disposed to believe that tlie respondent was
desirous, and that he endeavored to avoid personally
(oiiimitting illegal or corrupt practices, and even to avoid
actual knowledge of their conimis.sion by others acting in
his support ; but we are not satisfied that he was ignorant
that such practices were likely to be counnitted by persons
acting on his belialf in the conduct of the election ; and
Knding that corrupt practices did prevail, and as there is
reason to believe did extensively prevail, at the election,
and amongst those who supported the respondent, we are
unable to say that the evidence shews the respondent to
liave honestly desired, and in good faith endeavoured, as
far as he could, to have the election conducted according
to law.

We feel ourselves, therefore, compelled to come to the
conclusion that the respondent is not relieved by the lG2nd
section of the statute from the penalties and disabilities
incurred under the preceding section.

Ferguson, J., said he had nothing to add ; after serious
consideration, he fully concurred in the able judgment
just delivered by Mr. Justice Patterson.

The respondent appealed to the Court of Appeal, and
the appeal was argued on June 2nd, 1884.

C. Robinson,- Q. C, and McCarthy, Q. C, for the
appellant. The respondent fancied the Act R. S. 0. ch.
10, sec. 161, did not appl}' until after his nomination. His
conduct was " involuntary and excusable," within the
meaning of section 162. He honestly desired to have the

pr' "

220

PUOVINClAI. KLEf'TION.

election con«lucte(l according to law What the Act was
int('n<K;il for w.vs to put a stop to coimnittfio moutinajs
V)eing treated with intent to inflnenco the election. Wf
refer to W'tlhr, 'force on Stat. Law, p. 2-1.7; The. WrJ.
land Cane, //. J'J. C, p. 187 ; The DundnH dine, ih., p.
20"): The West Wellington (Uine, ih., p. 281; The Eani
PeierhoroiKjli C<ifte, ih., p. 245 ; The North Victoria Caxr,
ih., p. 2r)2;* The North Middlesex Ca>*e, Ih, p. 370 ; Tl,^'
Halton Odse, ih., p. 2S3 ; The North Grey Case, lb., p. 302 ;
The West Hasliiuis C<is», ih., p: 530.

Bethane, Q. C, Loiuit, Q. C, and Johiiftton, for the
re3|>ondent.s, referred to Wilher force on Statutes, pp. 251.
32 Vic. eh. 21, .sec. 01, (O.) ; 3i) Vic. ch. 10, (O.,)

fm-^

June 30th, 188-1.. Hagarty, C. J. O.— We have first to
consider whether tlie respondent was projierly held to hav(!
been guilty of a corrupt practice under R. S. 0. ch. 10 ,
sec. 151.

" No candidate * * shall, nor shall any other person
either provide or furnish diiidc or other entertainment at
the expense of such candidate or other person, to any
meeting of electors assenil)led for the purpose of promoting
.such eleetion previous to or during such election, or payor
promise, or engage to pay for any such drink or other enter-
tainment, except (mh' that nothing herein contained shall
extend to any entertainment furnished to any such meet-
ing of electors by, or at the expense of, any person or per-
.sons at his, her or their usual place of re.sidenee."

The respondent had been accepted as a candidate on
behalf of the Conservative electors ; Mr. Bettes by their
opponents.

Printed bills were issued, headed : " Political meeting.
Mr. Fauquier, the Liberal Conservative candidate, will
address the electors on the public questions of the day at
the undermentioned times and places," (giving a list of
times and place? 'ncluding Commanda,) " February 23rd,
7 p.m. Mr. Bettes is most respectfully invited."

The nomination was fixed for February 27th. The
polling took place March 13th.

ML'SKOKA AND I'AUllY S(iUNU.

227

r()intnan<lii is stiittMl t<> be a small liamlot <>t' a fmv

ll'iUSt'S.

Ki'sponilrnt arrived there in the eveiiinj,', and iihout
titteeii ek'ctois ai rived, several of theiii were his oiiponents,
A c'hairiimn was appointed. Respondent addressed thtni,
^o did others. They were asseiuhled in the dining-room;
tliere was a door into the passage dividing it from the
har-room, just across the passage. After the s{)eaking, tho
chiiiinian askt'd was there any one eUe to speak? No
(iiie <lid so, and he said he Would close it up, or hring it to
ii close, and the people began to move across the passage
into the bar-room. Most of them had gone there. Respon-
dent said to those remaining in the room to conit; and havo
a glass. They all went into the bar-rotiui, and respon-
dent re|)eated the invitation to all there to liave a drink.

He hat.1 said to one of the witnesses befoi o leaving the
ilining-room, " well, if we cannot agree in politics, we will
>;() and have a drink togethei'." In the bar, after I'epeat-

iiig the invitation, they all had a drink, for which respon-
dent paid.
This was held to be a violation of section 151.
It was urgi'd before us that this was not a meeting

within the statute.
Chief Justice Draper, in the llalion disc, H. E. C,

2(S5, seems to have C(<nsidered that " a meeting of electors

all of one way of thinking to support a particular

candidate, or of a connuittee to aid in his return, at which

refreshments were provided at the expense of one or more

uf them, could not, unless in some extieme case, be deemed

a breach of the provisions against treating."

The case was before this Court on appeal on another

charge, ami it was not neces.sary to notice the point.
I am not clear, I'rom the report, whether the luarned

Chief Justice was referring to corrupt treating generally,

or to this particular clause.
Chief Justice Camer^^^T. in the recent East Miildlesex

Case, (a) takesanoi)posite view, andholdjj that "a general

(a) Post p. 250.

Br.*

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228

PROVINCIAL ELECTION.

meeting of electors, called to hear the speeches of the can-
didates, can hardly be deemed assembled to promote the
election, as far as those assembled were concerned. They
came to hear, not to act, while in the case of the committee
it is assembled to act in the promotion of the election ; and
when the latter part of the clause is considered it appears
to me the latter kinu of meeting is indicated very clearly.''

Chief Justice Draper, in the East Peterborough Case, H.
E. C, at p. 251, holds that a meeting attended by both
candidates and their friends is a meeting within tills
clause :

" It is not open to question that the meeting was assembled
for the purpose of promoting the election, unless the statute
is to receive the narrower construction that a meeting of ilie
supporters of only one candidate is meant, and the promo-
tion of the election means only the promotion of the election
of that candidate. I do not doubt that such a case would
be within the Act. * * Still I am of opinion that tlie
wider construction is no more than what the Legislature
intended. * * Unless the larger construction prevail, a
general meeting of electors, held only for the purpose of
selecting a candidate, would not be within its provisions,
and the providing and furnishing drink or other entertain-
ment to tho electors would not be prohibited. I do not
agree to such an interfn-etation."

I am of opinion that the present was a meeting within
both the lett 3r and the spirit of the 1.51st clause.

The object, (amongst others) was evidently to extend to
treating as a means of intiuencing the voters. If a can-
didate call a meeting to hear him express his views on
public questions, it is doubtless done to place himself
favourably before the constituency, and the fact of the
presence of voters of an opposite political stripe, makes it
all the more likely that the candidate would strive to pro-
pitiate and win their favour by treating, &c., than if none
were present but his own known friends.

He called the meeting, in my judgment, to promote the
election or to improve his chances of success by personal
intercourse with the voters.

MUSKOKA AND PARRY SOUND.

229

Such treating would be clearly within the mischief
sought to be remedied.

It must, of course, be also reasonably within the letter
as was pointed out recently in this Court in the South
Victoria Case, ante p. 182, and in the caae there cited of

Philpots V. St. Geovfje's Hospital, 6 H. L. c. 3ns.

Then it is urged that the meeting was over before the
refreshments were furnished.

It was over in one sense that the chairman had formally
closed it.

But the voters composing the meeting all remnined, part
in the dining room, or, as may be said, in the act of a
general movement a few feet away across the p'vssage into
the bar-room.

The statute says nothing as to any organization of a
meeting. It is, I think, clearly a meeting of electors,
\Yhcther the formalities of appointing a chairman or a
secretary had been observed or not.

An evasion of the section could always be readily effec-
ted bv omitting anv formal organization. Fifteen voters
might very easily have met and discussed these election
matters without placing any one in the chair.

To hold that the section ceased to apply as soon as the
chairman formally closed the meeting, would, as it seems
to me, be the narrowest possible construction of the
clause, and a forgetfulness of both its spirit and letter.

It" the Legislature had prohibited any pei'son from wear-
ing any party badge or emblem, green or orange scarf, &c.,
at any meeting of electors, I think it would be an extraordi-
nary construction to put on the enactment if we held that
people could lawfully assemble at the a])pointed place of
meeting decorated with the prohibited badges, &c , and that
it would only become unlawful as soon as the meeting was
called to order by a chairman, and that as soon as he an-
nounced the proceedings to be at an end, every voter
present might at once resume his decorations.

This would seem to me to amoant to a complete nullifi-
cation of the enactment, destructive alike to its spirit an<l
its letter-

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230

PllOVIKCIAL ELECTION.

In the late case of the Prescott election, (a) my learned
brother Osier — (the Court consisting of its late Chief, of
myself. Burton and Osier, JJ.A.) used this language after
citing the authorities:

" Without attempting to lay down any inflexible rule
for the circumstances of each particulai* case as regards the
extent of the treating, the question must, in my opinion
always be whether the entertainment has been furnished
to the mcctimg ; that is to say, to the general body of
electors, comprising such meeting, whether before, duruig
or after the business of the meeting, and while, as a body,
such electors remain at the place of meeting or elsewhere.
I think there is nothing in the cases I'eally inconsistent
with this proposition."

Omitting the words, " or elsewhere," which may open
a wide tield of discussion not necessary in the case before
us, I accept this enunciation of the law. No member of
the Court dissented from, or doubted this view.

I am satisfied that we would wholl}' nullify the plain
words of the Act if we accept the appellant's construction,

I hold that the meeting called by the resi)ondont
remained dS a meeting or gathering of voters up to the
time when the entertainment was furnisl.ed to them.

Assuming that the charge of a corrupt practice has been
proved against the respondent, the question for decision
remains, whether he has fairly brought himself within
the .saving clause.

The legislature affixed the penalty of disqualification to
ceitain acts not in them.selves involving a corrupt or
immoral purpose, but merely a violation of regulations
deemei-l neces.sary for the free and peaceable conduct of
election contests. Cases occur in which the heavy penalty
was incurred unwittingly and in ignorance &c., &c.

Then came the remedial legislation, R. S. O. ch. 10, sec.
162. " if it appears to the court or the judges trying an
election petition that an act constituting in law a corrupt
practice was committed by a candidate or with his know-
ledge and consent, (1) but without any corru[)t intent, and

{a) aute p. 88.

MUSKOKA AND PARRY SOUND.

231

(2) in an ignorance which was involuntary and excusable,
(S) and that the evidence shewed the candidate to have
honestly desired and (4) in good faith endeavoured as far
as he could to have the election conducted according to
law, the candidate shall not be subject to the penalties and
disabilities which he would but for this section incur
under the next preceding section."

When the corrupt practice is proved the burden of proof
is of course at once shifted to the respondent to bring him-
self affirmatively within the saving clause.

The candidate may safely pass through the peril of dis-
qualification by the weakness or want of directness in the
evidence adduced against him, and the tendency of decision
has always been in favour of his innocence of corrupt
motive or practice, and his guilt has been required to be
j.roved with reasonable certainty.

Here the proceeding seems reversed. He is adjudged
guilty. He has now to convince his judges that he has
fairly brought himself within the saving clauses in the sec-
tion quoted.

The learned Judges Patterson and Ferguson, after very
full consideration and a most elaborate and careful exami-
nation of the whole case, pronounced with regret their
inability to find that the respondent had convinced them
of his being fairly within the provisions of the saving
clause. I have examined with the most anxious care the
very careful judgment of the learned Judges and the
voluminous evidence on which it is based.

I feel the gravity of the decision as against the respon-
dent, and the gravity of our position as appellate Judges
iiro^ed on his behalf to over-rule the decisions at which the
judges have arrived. It is, of course, not disputed that the
Appellate Court has the undoubted right to review the
decision. The Legislature provides in effect that if cer-
tain specified matters are proved to their .satisfaction they
may absolve the candidate. They decide that such matters
were not proved. We, of course, have the power to say
that they ought to have found them proved.

30— VOL. I. E.C.

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III

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232

PROVINCIAL ELECTION.

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Ml .

The latest of the many utterances on this subject seems
to be that of Lord *Black burn this year in the Lords:
Smith V. Chadwick, 9 App. Cas. at p. 194,

"The Court of Appeal ought to give great weight, but
not undue weight, to the opinion of the Judge who tried
the case and saw the witnesses and their demeanour. That
gives hi in considerable advantage over those who only
draw their information from perusing the notes. But still,
thouEfh the Court of Appeal ought not lightly to find
against the opinion of the Judge who tried the cause, I
think that the Court of Appeal, if convinced that the in-
ference in favour of the plaintiff ought not to have been
drawn from the evidence, shoulu find the verdict the other
way."

We therefore, if we allow this appeal, must be " con-
vinced" that the learned Judges below ought to have
drawn the inference from the evidence which they declined
to draw.

It has been also held very lately in Jones v. Car-
lincf, 13 Q. B. D. 262, that under the Judicature
Act, the costs shall, on a jury trial, follow the event
unless the Judge, on application then made for good cause
shewn, shall otherwise order. This power is given in a
section beginning with a direction that the costs of all
proceedings shall be in the discretion of the Court. The
Court of Appeal reversed Lord Coleridge's order refusing
costs on the ground that it was not made on " good cause. "

I will not attempt to review the voluminous evidence on
which the learned Judges based their finding. It is fully
stated in the judgment delivered.

I agree in the opinion there expressed that there was a
good deal of bribery at the election ; that certain persons
came into the county for the purpose of carrying the
election by illegal means, and that such means were
practised by some of them : that money was freely used,
and that the mission of these persons and the practice^
resorted to by them was tolerably well known in the con-
stituency, and that the respondent was engaged in a most

MUSKOKA AND PARRY SOUND.

233

active personal canvass for a considerable time over most
of the county, in constant communication with the elec-
tors and his friends and supporters.

The respondent admits that he intentionally avoided
having any conversation on the subject of the election at a
shiH't interview that he had some days before the polling
with a Mr. Shields, a person who, rightfully or wrongfully,
seems to have act^uired some marked reputation for inter-
fering in election contests. The respondent also stated
that at this interview Shields knew better than to talk
about the election to him. There was no evidence of any
illegal act done by Shields, and the respondent swore that
iie liad never known him before this meeting, and knew
nothing of his character or of his interference in political
matters.

A good deal of evidence was adduced as to treating, and
as to respondent's knowledge, or means of knowledge, of
the law on that subject.

If the case had turned solely on the question of the
respondent's violation of the 151st section as to treating at
Commanda Creek, I would have had to dilfer, I think,
from the judgment below, and would have held that he did
it without corrupt intent, and in an ignorance involuntary
and excusable. I would have accepted his assertion on
that point.

I do not think, until his being warned, that he was
aware of its illegality, and hardly believe he would know-
ingly have jeopardized his election by such a violation of
the law, especially in presence of known political oppo-
nents.

My difficulty arises on the other requirements of the
statute, the proof required from the res))ondent of his
having honestly desired, and in good faith endeavoured, as
far as he could to have the election conducted according
to law.

I do not propose to review the voluminous evidence
All its salient points appear in the judgment at the trial
The decision of this Court must be read after a perusal of
that judgment.

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234

PROVINCIAL ELECTION.

With the most unfeigned anxiety on my part to give a
possibly innocent man the benefit of every reasonable
doubt in tlie case made out against him, with a full sense
of my right and of my duty to give my independent judg-
ment on the case laid before us, whatever may have been the
opinion of the Judges at the trial, I have arrived with
regret, at least as sincere as that expressed by these
learned personages, that I cannot join in leversing their
deliberate decision on the other points of the case. I am
not "convinced" (as Lord Blackburn puts it) that the
inferences drawn from the evidence by the Court appealed
from ought not to have been drawn. Had they thought
themselves justified, after hearing and seeing all the
witnesses, in expressing themselves satisfied that the
res|)ondent had fairly brought himself within the pro-
tecting clause, I should have hesitated long before I cotdd
venture to interfei*e with their decision.

We may give the respondent credit for having honestly
desired to keep himself personally free from corrupt prac-
tice, and not to |)ut himself in the way of knowing whether
others were or were not resorting thereto. The Legislature
seems to require something more from the candidate, and
he has failed, I fear, to answer that requirement.

I am not prepared to say that I am convinced the finding
is erroneous, and therefore must hold that the appeal must
be dismissed.

Burton, J. A. — Two questions are presented for our
consideration in this case.

Was the act of which the appellant was found guilty an
offence within the statute ? and if so, is the construction
placed by the learned Judges upon the mitigating clause
correct ?

The answer to the first of these questions must depend
upon whether this was such a meeting as is referred to in
section 151, and whether what is alleged to have occurred
was the furnishing drink to such a meeting within the
meaning of the statute.

MUSKOKA AND PARRY SOUND.

•235

Unfortunately, great differences of opinion appear to
have existed as to what is meant by the words " a meeting
of electors assembled for the piii-pose of promoting such
election," the learned Chief Justice of the Common Pleas
holding in a recent case (East Middlesex post. p. 250) that
section 151 was specially directed against the treating of
committees composed of electors, and that a general meeting
of electors called to hear the speeches or addresses of the
candidates can hardly be deemed assembled to promote the
election as far as those assembled are concerned. They come,
he says, to hear, not to act, while he says in the case of the
committee, it is assembled to act in the piomotion of the
election.

With great deference, it seems to me that such a con-
struction would be to give to the words used by the
legislature a much narrower meaning than they bear in
their natural and ordinaiy sense. If such had been the
intention of the legislature we should rather have expected
them to say, to any " meeting of electors assembled to pro-
mote the election of such candidate" ; and besides it must
not be overlooked that the section is directed not only
against a candidate, but against every person so offeading
shewing, I think, very clearly that the words " for the
purpose of promoting such election " have reference to any
meeting assembled in connection with, and in furtherance
of, the object of electing a representative in the Legislature,
and are not confined to meetings of the supporters of a
particular candidate. The late learned Chief Justice
Draper, in the East Peterborough Case, H. E. C, at p. 251,
expressed himself clearly to that effect. " I do not doubt,"
he says, " that such a case " (referring to a meeting of
the supporters of only one candidate) "would be within
the Act, and the evidence on the present trijil is by no means
conclusive against this being precisely that case. Still I am
of opinion the wider construction is no more than what the
legislature intended. If the meeting consists of electors of
ditl'erent pai'ties, and it is held with the view of promoting
an election, it must necessarily be an election of a represen-

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III i|iii4ix

23G

PROVINCIAL ELECTION.

tative for the whole constituency to whatever party he may
belong. Unless the larger construction prevail, a genoiai
meeting of electors held only for the purpose of selectinir
a candidate, would not be within its provisions, and the
providing and furnishing drink or other entertainment
to the electors present, would not be prohibited."

I should have been inclined to think, but for the con-
cluding words of the section, that committee meetings
were not intended to be included ; but it is quite possible
that the Legislature, with the knowledge of the facility
with which these enactments are frequently evaded, have
thought it desirable to include all kinds of meetings of
electors in any way concerned in the promotion of tlie
election, making the prohibition as wide and general as
possible, and then excluding from the operation of the
enactment the furnishing of entertainment to such meet-
ing (piesumably, in such connection, a committee meeting)
at the usual place of residence of such candidate or otlier
person.

I think some of the apparent discrepancies in the deci-
sions may be attributed to a want of care in ascertaining
under which enactment the decisions were given. Tlieie
was much reason I think in the contention tlmt section CI
of the Act of 18G8, where, in addition to the treating, it
was necessary to show that it was done with intent to pro-
tnote the election of the ca'ndidate, was confined to fur-
nishing entertainment to a meeting assembled for the pur-
pose of promoting his election; but under the present
enactment no such intent need be shown, and the meeting
referred to is a meeting assembled for the purpose of pro-
moting such election, referring not to the election of the
candidate, as in the former statute, but the election of a
representative of the electoral district to serve in the Legis-
lative Assembly, — the only election previously referied
to in the Act.

My own opinion is that we cannot, without restricting
the language of the legislature, hold that any meeting of
electors assembled for promoting the election, whether

MUSKOKA AND PARRY SOUND.

237

that meeting be a mixed meeting or a meeting of a can-
didate's own supporters or a committee meeting, is excepted
from the operation of section 151, unless such meeting be
held and the entertainment supplied at the usual place of
residence of the party furnishing it ; and I need not add,
therefore, that I agree with the learned Chief Justice that
the meeting in (question came clearly within the enactment.

Then was what took place here a treating of that meet-
ing ? To hold otherwise would be in effect to repeal the Act
of Parliament. My brother Osier, in delivering judgment in
the Frescott Case, ante p. 88, placed a construction upon the
words of the section which was fully concurred in by the
other members of the court, and appeared to me to be the
only effectual mode of construing the enactment, and I agree
that we should nullify the enactment were we to adopt
any other construction. The formality of appointing a
chairman or organizing the meeting would be everywhere
dispensed with ; and yetl think no Court could V)e gravely
asked to hold that the Act did not apply if a body of
l)eople so assembled were invited by any one to accept a
treat.

That is precisely what was done in this case ; the whole
body thus assembled was invited to go into the bar and
partake of drink at the expense of the candidate.

I can scarcely consider it worthy of serious considera-
tion as an element in our decision, that two or three of the
persons assembled had crossed the threshold of the room
in which they were actually holding the meeting, on their
way towards the bar-room, at the time this invitation was
extended to all.

Looking: at one of the mischiefs which the Legislature
had in view when passing the enactment in question, viz.,
keeping the peace and good order at elections, it is obvious
that if the prohibition were restricted to the actual meet-
ing strictly so called, it would do but little towards remov-
ing one of the evils at which it was manifestly aimed,
namely the furnishing of intoxicating liquor to persons
as.sembled or called together at election times, when the

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238

PROVINCIAL ELECTION.

feelings of the opposing parties are likely to be much
excited.

That excitement would be intensified by the furnishintj
of intoxicants, and would increase the tendency to
tumultuous and riotous discussions, ending as we all know
they frequently did in former times, in scenes of violence
and bloodshed.

I should say, therefore, that a very wide meaning should
be given to the words of the section with the view to pre-
vent the mischief, and that until th ^ body so gathered
together had actually separated, and had resolved itself
into its original elements so to speak, it would be a very
dangerous experiment for a candidate to indulge in a
genernl treat to the people thus gathei'ud together, and I
think it is as well that it should be generally known that
the Courts are disposed to place a very wide construction
upon the words, with a view to suppress the mischief.

In the words of one of the witnesses, a general invita-
tion was extended to all, and all piosent could hear it.
That being so, the candidate w-as guilty of what the legis-
lature has made a corrupt practice.

Whatever then may be our opinion of the propriety of
visiting a candidate or other person witii so severe a penalty
for an offence involving no moral turpitude, but merely
made a corrupt practice by Act of Parliament, it is not left
to our disci etion to adjudicate upon it, the fact being
established the penalty follows as a legal consequence.
The party found guilty is " ipso facto " disqualified.

It might perhaps have been more in accordance with
popular sentiment if such matters as these and others had
been left as they were at one time, to be mere illegal practices
subjecting the party guilty of them to a penalty, and then
if a candidate were found guilty of any practice involving
a corrupt intent, to leave him without any possibility of
relief at the hands of any one. It is sufficient to say that
it is not for us to offer any opinion on the subject, but to
administer the law as we find it.

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MUSKOKA AND PARKY SOUND.

281)

The matter did not, however, escape the attention of
tlie legislature, and no doubt, witli a conviction that
under so stringent a law cases of liardsliip might arise,
tlioy have enacted, by section 162, that if it appears to
the Judges trying the petition that an act constituting in
law a corrupt practice, was committed by a candidate, he
shall not be subject to the penalties and disabilities
imposed by the statute if they Hnd,

1. That the act itself must have been committed without
any corrupt intent.

2. That it was committed in ignorance which was invol-
untary and excusable.

8. If the evidence sliows that the candidate honestly
desired to have the election conducted according to law.

4. That the evidence further shows that the candidate,
ill good faith, endeavoured, as far as he could, to have the
election conducted according to law.

The learned Judges have found, and it is impossible for
any one of ordinary fairness and candor, after a perusal of
the evidence, to doubt the correctness of their conclusion
that a number of persons visited the district, some of
whom have attained an unenviable notoriety throughout
the Province for corrupt practices in elections, and that
the object of their visit on this occasion was to influence
the election by corrupt means, and that it was proved by
one agent of the candidate through whom money was
disbursed that the object was to carry the election if
money would do it.

A variety of acts were proved, upon which the election
was set aside; and the Judges have found, upon evidence
which is more than abundant, that there was an organized
and systematized plan to employ corrupt means to influ-
ence and carry the election, and that it was part of the
system to bring those means to bear, as generally as
possible, through all parts of the electoral district ;
that a part of this general plan was the mode of dealing
with the votes in the unorganized localities, which involved
the scheme of sending persons not qualified as voters, and
31— VOL. I. E.C.

ill

\%\

240

P110\ INCIAL ELECTION.

not resident houHeholders in an unorganized district, and
not owning property anywhere in the district of the vahiu
of $200, to vote at a polling place in the unorganized dis-
trict. Large nuinhers of persons not qualified to vote wore
sent from villages into these unorganized districts, mtn
who were notoriously uu.vble to benr the expense of goiny
there, and the fact of such a scheme existing, and that
these persons were sent was known to the candidate. He
says that he assumed that teams would be volunteered for
the occasion, but he knew that these men could not live
upon air. Are we then to quarrel with the cor Jusion of
the learned Judges, when they refuse to believe that this
gentleman, a resident of the district, well acquainted with
the settlers and their means, moving constantly among
them during the contest did not know what every practical
man in the district did know ?

In point of fact large sums of money were expended in
procuring teams and provisions, including large supplies of
whiskey, for the purpose of taking these persons to cast
votes to which they were not entitled in favor of the
appellant. We must, even as judges, take notice that in
a sparsely settled country like that in question people are
pretty generally informed of their neighbors' actions, and
therefore that the presumption is very strong in favor of
the view that the details of these transactions must have
been known lu hiui, unless he chose wilfully to shut
his ej'es.

Speaking for myself, I am always unwilling, except
upon the very clearest evidence, in view of the ge- oral
practice of treating which prevails throughonf un-

try, to hold that treating is indulged in wi corrupt

intent.

It is not of course necessary to show an intent in ( ler
to establish the corrupt practice under section 151, but in
order to remove the disqualification the appellant hail to
satisfy the judges that no corrupt intent existed.

I understand some of the learned judges' remarks, to
which such strong exception was taken upon the argu-

MUSKOKA AND PAUUY SOUND,

241

iiicnt, were made witli the view of illu.s(ratin<,' tin; difti-
fulty of dealing with the case when the onu.s was shifted,
iiiid a person eonvicted of the ollcner was endeavoring to
<rtt rid of tlie penalty, and upon wlnnu therefore the duty
was thrown of shewing that there was no corrupt intent.
Here, he says in effect, is a gentleman to whcm I may
jissimie, frdn liis antecedents, this indiserimate pot-houso
treating must have hcen repulsive. I could not say, per-
liiips, if I were dealing with it as a charge of corrupt
treating, that it was made out, because it would be in the
nature of a qnuKi criminal charge, and 1 sliould feel bound
to give him the benefit of the doubt. But here he is, after
conviction, endeavoring to get rid of the penalty, and with
this assumpt'on that the piactice must have been foreign
to his usual practice, can I say that he luis satisfied mo
that there was no coirupt intent' J do not understand
that there wsis any expret-s finding, but only an intimation
of opinion ; but if the Judges had expressly so found, could
we, }is an appellate court, say that they were wrong ?

For the same reasons T. find it impossible for us to say a»
an appellate tribunal that the learned Judges were clearly
wrong in holding that a gentleman who was seeking to
attain the position of a law maker, after being warned of
the risk he was running, deliberately continued the practice,
hecause he chose to place an interpretation on the statute
that he was not a candidate till nomination day, whereas
the mere reading of the clause must have sati.sfied him that
it applied to any person, candidate or not.

If the statute means anything, it must surely extend to
such a case. It cannot be said to be involuntary, some-
thing that he was surprized into, or did without a moment's
reflection. He said he had been advised as to what he
could do, and what he could not do.

B- t it is really upon the remaining portion of the 162nd
section that the question turns. I have already referred
to the finding of the Judges as to the general system of
organization for corrupt purposes by persons taking so
act.' ve a part in the election as the strangers I have referred

^\-

'*' '■'I

242

PROVINCIAL ELECTION.

to were taking, and that it was out of the questioii to
suppose that these acts were carried on without the know-
ledge of tlie candidate. The learned Judges say it would
rather be taxing credulity to assume that these things
could have been pursued in so many parts of the elec-
toral district by persons who were strangers there, with
little or no pretence of secrecy, without his becomiiifj
aware of it, and were we to hold differently, it would go
far to destioy the confidence of the community in the
efficiency of Courts of law as tribunals for the trial of these
petitions.

A careful perusal of the evidence has satisfied me that
what occurred in this eleetoi'al district cajinot be better
described than in the words of Mr. Justice Gwynne in the
London Case, 24 C. P. at p. 474 "that the pre-arrangement
or understanding tacit or express between the parties was
that the candidate should be kept in ignorance of the
particular separate and distinct acts of bribery committed,
whilst he was aware, as he could not but be upon any
rational principle, that corruption and wickedness upon a
most extensive scale were being daily practised around iiiiii
on his behalf, and in his sole interest."

No one with the slightest knowlcilge of human nature
and an ac(juaintance with the ordinary affiiirs of life, could
have arrived at any other conclusion than that the appel-
lant knew of these transactions, and had the learned Judges
come to any other conclusion there are hundreds of indivi-
duals in the district who would have been forced to the
reflection that these tiials were useless and ineffective.

It may be quite true tliat Mr. Fauquier may have been
placed in an embarrassing position by his friends ; that he
might have felt that any endeavor to interfere with them
might jeoi)ardize his return. But then he took another
risk — that which has happened — of his being found guilty
of a corrui>t practice, and of the burden in that case being
thrown upon him of showing that he, in good faith, endea-
vored, as far as he could, to have the election conducted
according to law, and that he honestly desired that these

MUSKOKA AND PARRY SOUND.

243

strangers should confine their exertions within the limits
which the l.iw permitted. The learned Judges found that
he had not satisfied this onus. Can we say that they
were wrong ?

I feel that we cannot properly do so, and I concur with
the Chief Justice in dismissing the appeal.

Morrison, J. A., concurred.

Galt, J. — This is an appeal by Mr. Fauquier against the
decision of the learned Judges who set aside the election
on account of corrupt practices by his agents, and who
ftlso gave judgment against the appellant of personal dis-
(lualitioation by reason of a breach by him of the lolst sec-
tion of the Election Act. The only matter before us is on
the latter question, as the propriety of the first is not
disputed.

The law and the evidence are so brief that I set them
out at length, omitting from the hitter such portions only
as have no bearing on the question.

The 151st section is : "No candidate for the reinesenta-
tion of any Electoral District shall, nor shall any other
person, either piovide or furnish drink or other entertain-
ment at the expense of such caudicate or otiier person to
any meeting of electors assembled, for the purpose of pro-
moting such election previous to or during such election,
or jiay, or promise, or engage to pay for any such drink or
other entertainment." There is an exception added which
has no application iiere.

2. Every person offending against thei)rovisionsof this
■section shall incur a penalty of SIOO.

It is also made a corrupt practice by R. 8. O., ch. 11,
sec. 2, sub-see, C.

The evidence is :

" 1 h( mas Can', Sr. — Where do you live, Air. Carr ^ At
Conimaiida Creek. Was there any public meeting held
by Mr. Fauquier, or by persons on his behalf at Com-
manda ? Yes, sir.

III

■ i.'k

244

PROVINCIAL ELECTION.

uiij

What hour did it commence ? About 7 o'clock in
the evening. Who was chairman of the meeting ? A
gentleman of the name of Boyle.

With whom did he come to the meeting ? He came to
the meeting with Mr. Fauquier.

What was done at the meeting ? Mr. Fauquier got up
and spoke for perhaps three quarters of an hour, or near
that.

And what next happened, any body else speak after
that ? Yes, sir. I said a few words.

Any other person speak after you ? Yes, another man
by the name of Barton had a little to say there.

After that did any person speak ? Yes, sir. The chair-
man got up and spoke.

And what happened next ? Well, after that the meeting
was brought to a close.

In what way ? Oh, simply, it was moved the meeting
should come to a close, and carried.

Did you hear Mr. Fauquier say any thing or see him do
anything ? Not after that in the meeting.

[Here there are some questions and answers which it is
unnecessary to set forth.]

You say he invited you and all the rest to go and take
n fjlass of beer ? Yes.

How long was that after the meeting was brouifht to a
close ? Immediately after."

It appears that both the witness and Barton were
opposed to Fauquier. In reply to a question from Fnr-
guson, J., the witness states : " Yes, your Lordship, there
were two other gentlemen treated after that. The witness
in reply to a question of Mr. Bethune: Is Commanda a
thickly or thinly settled place? It is onl}' a thinly settled
place ; I should say that right in the neighbourhood of
Commanda there will be a little over twenty-five inhaVii-
tants ; I was counting them up as well as I could before I
came down here."

Thomas Carr, Jr. — this witness was at the meeting." Who
spoke at the meeting ? Mr. Fauquier spoke first, and my
father he had something to say.

MUSKOKA AND PARRY SOUND.

2*5

After that what occurred ? Well, he talked a while : at
last the meeting was brought to a close.

In what way ? Well, in the legal way.

I don't know there is any legal way to close a meeting.

Tell me how the meeting was brought to a close ? Mr.
Boyle said if there was no more to say he would close the
meeting. I believe he announced to close, and we all got
up to go out."

Milton Carr. — He was at the meeting.

"At the close of the meeting, what did you see or
hear done by Mr. Fauquier ? Well, they were arguing
pretty hot about this election, and Mr. Boyle said, why
if there was nobody else to speak they would close the
meeting.

Well, what next happened ? Well, they all started,
and Mr. Fauquier said if we cannot agree upon politics,
we will go and have a drink together ; we then went into
the bar and there was a few out there and he invited all
hands up.

Did you see anything more ? I saw him lay the
money down for it, but what it was I cannot say.

Did you treat yourself ? Yes, sir."

Mr. Bethune then stated, that is all the evidence on that
charge I have. And it is on this evidence and this evi-
dence alone Mr. Fauquier has been disqualified. I have
already set out the section bearing on this question, and
two things appear to me to be clear, first : That no can-
didate shall furnish entertainment or drink to any meeting
while they are assembled for the purpose of promoting an
election, and that no other person, whether representing
the candidate or not shall do so under a penalty in either
case of SlOO.

The first question then is, was the refreshment furnished
to a meeting while they were assembled for the purpose of
promoting the election ? In ray opinion it was not. The
meeting was over, it had been brought to a close and all
the men assembled in number 15 or 16 had got up. Some
had left the room and gone to the bar-room across the

24G

PROVINCIAL ELECTION.

passage, and some were still in the room, but the meeting
was to all intents and purposes at an end. The learned
counsel in his examination of the witness Thomas Carr, Jr.
says : " I don't know there is any legal way to close a
meeting," and I must confess I share in the ignorance of
the witness if he is mistaken when he states in leply:
'• Mr. Boyle said if there was no more to say, he would close,
the meeting. I believe he announced to close, and we all got
up to go out." I have already shown that anj'^ person who
shall furni.sh entertainment to such meeting, is liable to be
severely punished whether he is acting on behalf of a
candidate or not, and in this particular case we find that
one of the witnesses himself treated in the same way as
Mr. Fauquier; and that another did so, whose name is not
mentioned. These men, therefore, violated the law if the
meeting was assembled, and they did not, if the meeting
was at an end. They had no personal interest in the
election, they were opposed to Mr. Fauquier, and as they
must, in the absence of all evidence to the contrary, be
held to have known it was illegal to treat a meeting ; surely
the inference is, that the meeting was over. It was, how-
ever urged by the leained counsel for the defendant, that
it cannot be said the meeting was not still in existence,
because all that took place was, that some of the men
merely left the room and crossed into the bar, but we must
consider what were the facts. The meeting was held in a
very small settlement, and no doubt the hotel where the
meeting had been held, was very small. There was a
dining-room in which the meeting was held on one side
of the passage, and the bar-room on the other, and when
the chairman announced that the meeting was closed, there
was no other place to which the men could go before start-
ing for their respective homes.

If an action was brought against Milton Carr to recover
the penalty of .1?100, is there any jury who would iind a
verdict against him, if the question submitted to them
was, whether the meeting was closed, (in this case the
Court are discharging the functions of a jury) when every

MUSKOKA AND PARRY SOUND.

247

one of the witnesses examined, not only swear that it was
closed, but sliovv by their actions they believed it was by
themselves calling for refreshment ? I am satisfied they
would not. It is, however, argued that the Election Court
has ill other cases decided what is and what is not a treat
ing at a meet'^ig, and that in consequence of such decisions
wc must hold this meeting was " a meeting assembled for
the promotion of the election," and that it was not closed.

It is quite true no person present on this occasion had
probably ever heard of the names of such cases, and were
<,'uided by what they believed was the intention of the
legislature as shewn in the Act of Parliament, but they
were mistaken, and consequently this gentleman is to be
disfiualitied for eight years.

In my opinion the meeting was closed, and that there
was no breach of the law, and this appeal should be
allowed.

In this view, it appears I am mistaken, but I do hope
the Lcgislatuie will see fit to relieve Mr. Fau(juier from
{jei.-onal disquulification for an offence arising from a
misconception of an Act of Parliament, against th'i pro-
visions of which he had no intention to oti'end.

There was a second ground of appeal under the pro-
visions of the lG2nd section, which enacts " If it appears
to the Court or the Judges trying an election petition
that an act constituting in law a corrupt piactice was
tuuimitted by a candidate or with his knowledge and
consent, but without any corrupt intent, and in an igno-
rance which was involuntary and excusable, and that
ihe evidence showed the catididate to have honestly deaifiid.
and in good iaitli endeavoured as far as he could to have
the election conducted aceordinjx to law, the candidate
shall not be subject to the penalties and disabilities which
he would but for this section incur, under the next iire-
ct'tling section." The learned Judge has summed up
the evidence as follows, and I am satisfied to accept his
tindiugs so far as the facts are concerned :

32 — VOL. I. E.C.

Ik
IS-;,

h'f

248

PROVINCIAL ELECTION.

" I may sum up or recapitulate the results of our con-
wideration. We find that the act of the respondent in
furnishing drink at his expense to a meeting of electors
at Commanda Creek for the purpose of promoting the
election, which constitutes in law a coiTupt practice
while it appears to have been committed in ignorance
that it was a violation of the statute, does not appear
to have been committed in an ignorance which was in-
voluntary and excusable."

" We are disposed to believe that the respondent was
desirous, and that he endeavoured to avoid personally
committing illegal or corrupt practices, and even to avoid
actual knowledge of their commission by others acting
in his support; but we are not 'satisfied that he was
ignorant that such practices were likely to be commit-
ted by persons acting on his behalf in the conduct of
the election; and finding that corrupt practices did pre-
vail, and there is reason to believe did extensively
prevail at the election, and amongst those who supported
+he respondent, we are unable to say that the evidei.ce
shows the respondent to have honestly desired and in
<:ood faith endeavoured as fai as he could to have the
election conducted according to law."

I have already stated that in my opinion the act
referred to was not a corrupt practice, but assuming
that it was, tlien with all respect to the learned Judges
who tried this case, I am at a loss to understand the
reference to the 162iid section. The learned Judjxes bavins:
found that the appellant did commit the act in ignorance,
" but that such violation of the statute does not appear to
have been involuntary and excusable," he was not within
its provisions because the exemption applies only where
" the ignorance was involuntary and excusable." As I
have already stated, this Court is now sitting to review
not only the law, but the fiicts, and as regarcis the present
question, it is expi -^ssly enacted that " that the Court or
the Judges" trying i:n election petition shall form an
opinion on the present ijuestion, and I can see no reason

MUSKOKA AND PARRY SOUND.

249

whatever for saying that the ignorance of the appellant
was not voluntary and excusable when we find that all
the persons who were examined as witnesses who were
present at the meeting, not only believed they were not
doing any thing wrong, but acted on such belief ; and then
adopting the finding of the learned Judges as to the actual
conduct of the appellant, I think he] i.i justly entitled to
claim the benefit of the statute.

A. H. F. L.

l^i

2oO

PROVINCIAL ELKCTIOX.

EAST MIDDLESEX

PRO VINCI A L EL EC TIOX.

Before Boyd, C, and Cameron, J.

London, Novcmhcr L'f, L'j, nud IG, 1SS3.
Toronto, Novvinlicr ,.'0, ISSo.

Before the Court of Arpeal.

Pkesent :— Hauarty, C. J. O., Brr.roN, J. A., Patterson, J. A., ano

O.SLKR, J. A.

Toronto, Or/uho- 4t/i, ISS/,.
Noveiiilicr II, ISS4.

Thomas Rossal Rhodkr, Fetiflover, v. Donald
McKenzie, lit's'pondcn t.

Briberij — Tnafnuj rtmimUtccs — Corrnp/ jirac/irif — I?. S. O. c/i. ](>, .vcr. I'd
— Lrklciui' — J'dilicii/aix oj /i(utiii<i — !'( rnoiial (j^kz/.s-cs — Treallinj—
Suviiitj (7t/».v(-, y/. >S. O. cli. 10, Kcc. liiO.

I)., an iigent of rcspoiulent, biil)e(l ^L, a voter, l>y payiiicnt of nioiicv.

The siiiue ]>. gave one L. , aftir he had voteil, 5?!, which both D, ami

L. said Mas a l(jaii and not a gifr :
Uild, as to the lirst p;ijnient, pir llovD, (,'. , and Caaikjion, C. J., a

corrupt practice ; as to the hittir payiiniit, fur Ji(l^ i), C, not a conii[it

practice, the evidence not connecting the payment with tlie vote given:

jirr Cam run, J., that it ilid.
H., a votei', was paid $4 by an agent of respondent for one day's work

posting bills ;
Held, ]iir Pk>v1), C, not a corrujit piactice ; ;»»;• Cameron, C. J., an

unreasonably large payment for the work done, though not sufficient, if

it ■\veie tlie <inly charjic, to avoid the election.
Two cases of personation were estalilished, but no agent of respondtiit

was a party to either.
On difl'ereiit occasions a few membeis of one of respondent's local cciu-

mittees met together ac different taverns, to go over voters' lists and

arrange as to doubtlul votes, and on each occasion li(pK)r was furni^lnil

to the eommiltee men tlms engngetl, at the expense of ditl'ereut agents

of respondent :

EAST MIDDLESKX.

251

Ifil'K per Bovd, C. , tliat such committee mcetinp;s were not "mootin^s of
electors " within the nie.vni".; of sec. 151 of tho Act; /"C (V\mki;on,
C. .)., that sec. l")! was spocially directed a^^ainst tho treating of sucli
(■oniniittcc meetings.

On aiipeal :

//./'/, by the Court, P.\ttekso\, J. A., dissenting, that snch meeting
were witliin the meaning of the section.

7/'/r/, at the trial, /if-r Boyd, C, and ('amrkon', C. J., that particnlar*
and evidence, shewing tlie furni-i!iing of Iii|uiir to such nn^ctings of com-
mittees, were admissible under tlio gonoral allegation of the petition,
that respondent l)y himself and his agents had been guilty of "treating."

Jl'I'l, jiir Hovi), C, that but one corru[)t i)racti(e was proved, and that in
view of the provisions of sec. 151) of the Act that one was not antlicient
to avoid the return.

J[rhl, also,/)fr Bovi), C, tliat inasmuch as respondent's personal expenses
had not amounted to. 'JlOO, and as, during the canvass, although he hail
treiited friends, lie had not done .so to any greater extent tiian had
previously been his hibit, neither his p u'sonal conduct iluring the elec-
tion, iMV the absence from the trial of one of his chief agents, against
wiioni considerable suspicion was raised by th,; evidence, ought to pre-
vent the court from applying the provisions of sec. l.")9 to the circum-
stances of this case,

//■/'/, /)»)• CA^rEKON■, C J., that tliougli nothing corrupt or unusual was
]iroveil as to respoiid'iit's e"pcnsi!s or treating, he had not properly
returned his person d expenses, and this circumstance, coupled with the
keeping out of the way at the time of tho trial of one of his chief agents,
should prevent respondent receiving the benefit of section 159 of th'-
Act, anil the election should be avoided.

On appeal :

JJilt, OsLKii, J. A., dissenting, that upon the evidence tho election was
saved under the provisions of sec. 159.

''I"

it (I

Tfik petition contained the usual charges of corrupt
practices, and prayed to have the election avoided,

McCarth;/, Q.O,, and T<ti/^i)r, for the petitioner.

S. H. Blake, Q.O., and Ajiesiuo.-th,ior the respondent.

The facts are staled in the judgments of the learned
Jiulo'es who tried the case.

is:* ,;

BovD, C. — There is one corrupt practice attV'cting the
res[i indent thi'ough an agent which is, in iny opinion,
satisfactorily proved, namely, that De[)otie .^'ave $1 to
\Villi-^ Moxley for the purpose of bribery, JMo.xley says
it Wiis a charitable donation such as he had often received
from Depotie and his family, though never before so much
at one time. Depotie, however, says that he never gave
Moxley anything in charity, but had lent him small sums

■pr

252

PROVINCIAL ELECTION.

!-l

at various times, which were rej»ai(l, and that this was a
loan of the same character. But tlie demeanour of the
witnesses and the circumstances attending the transaction,
arc such as to point clearly to the conclusi<m tliat the
money was given to induce Moxley tu vote as Depotie
wished. Depotie and Powers repair to Moxley's house
about eleven at night, on the eve of polling day, rouse
Moxley out of bed, and in the dark the money is passed
into his hand while they arrange to come after him to
V ote tlie first thing in the morning. This is one of the exam-
ples of spurious philanthrophy which is thus graphically
relerred to by Bowen, J., in the Wigan CuNe, 4 O'M. &; II.
14. " The feeling which distributes relief to the poor at
election times is too often not charity, but party feeling,
following in the steps of charity, wearing the dress of
charity, and mimicking her gait." I think that the agency
of Depotie is also sufficiently established. The respondent
relied on the exertions of local organizations working-
thi'ough committees, to secure his return. Depotie and
Powers were much together, and were together engaged
in this Moxley transaction. Wo find Powers attending-
thiee meetings of such committees, one of which lasted
two hours. One of them he attended upon getting a
I'lOticc to attend; at another he is furnished with a voters'
list. So we find De|)otie attending a committee meeting
at Daly's, which lasted an hour, at which the voters' lists
wore di.scussed and arrangements made as to the uncertain
votes. Indeed, Daly says that Depotie was a member of
the committee. Both Powers and Depotie attend a meet-
ing at the Odd Fellows' Hall the night before the polling,
at which Jarvis, a recognized agent of the respondent, was
also pi-esent. A private conference took place between
Jarvis and Depotie, at which the former lent the latter
$5, and after which Depotie took up Moxley, as already
mentioned. Both these men were engaged all the next
day with one of the vehicles which Lawson volunteered to
lend for the occasion to the committee, in driving voters to
the polls in the respondent's interest. There is here such a

If •.

KAST MIDDLKSRX.

2.53

cumulation of circmnstancos a.s justifies the finding that
Depotie was, within the meanin*^ of the election law, an
agont of the respondent.

But, with this single exception, there is no other corrupt
practice proved which affects the respondent, and I find in
this strong confirmation of his own evidence that he tried
to carry on the contest mirly, and told his agents to do the
same.

I may nowshoitly state the grounds on which I proceed
in exeuli)ating him from all the other charges.

The payment of $4 to the bill-poster Hurley is open to
comment, as being a very large sum for the services ren-
dered, and because it was not properly inserted in the
account of Macdonald, the financial agent of the respond-
ent. Yet, having regard to the undisputed evidence that
Hurley promised to vote for the respondent when he fir.t
heard he was a candidate : that this payment had nothing
to do with his vote: that the day on which he did the
work was cold and stormy: that he got wet through, and
caught a cold in consequence; and that both swear it was^
in their opinion, not an extravagant price, considering the
work and the weather, — I do not see my way to stigmatize
the afl'air as a piece of coiruption and bribery. Viewing
it as an isolated case, I give the parties the benefit of the
doubt, as was done by Hagarty, C. J., in a very similar
transaction in the Glengarry Case, H. E. C, p. 19. I refer
also to the West Toronto Case, H. E. C, pp. 98, 114, 123,
124, and the Westminster Case, 1 O'M. & H., SO, therein
cited.

Again, the charge of corrupt treating on the part of
Hurley by means of Si given to him for that puipcse by
Macdonald is a matter trivial and easily explained without
any imputation of illegality. As put by Hurley, there were
a lot of young fellows who had no votes, in a bai'-room,
a.ssembled there after one of the election meetings. They
chati'ed Hurley, and asked him to treat; upon this Macdon-
ald gave him a dollar, which he forthwith applied to sat-
isfy this demand. It would be a burlesque upon the law
to set aside the election on this ground.

:/:

:jr

2rA

PHOVINCIAL KI.F.CTION.

As to the cliJirgo of Smiimu'I Monro l»(>in^' brilMMl by
Einii;li, I pri'fcr to tako the version of the affair which
Kini^h ir'wi's to that of iMooro. I walehod the doiunanour
of Kmi;,'h hoth in j^iviiij^ eviih'iioe and (hirinyf the trial,
whih' evifh'Hce artectini,'hini ".vas ,L,'iven, and I consider him
a credihie Avitness. lie is a ])erson of some substance — an
apparently respectahle, W(ill-to-(h) man, who could liardiy
Ite expected to })t'rjure liimself respectinj^' a j,'Imss of hcer
and fifty cents. Arthur Jeffrey, vvlio was called to contra-
diet Kmi^jfh on somt; points, did not favourably impress
nie. C.'onnnencing with conjecture as to the* licpior coiu
sume(i and the lunidier of treats, he <;ra(hial]y workocl
liimself nj> to absolute certainty on these |)oints, which
conid not have pai'tieularly concerned him. I hold that the
trea^ he <i;ave (Kmigh «,'ave Moore) was not to influence his
vote, nor was the loan of fifty cents for which he was asked
by Moore, who is described as a sort of "dead beat." But
apait from this I do not think that the agency of Kiniiih
is nmde out. His name ajipears in a book produced by the
Secretary of the Reform Association as forming' one of an
association to advance Reform principles ; but it is not
shewn that that h.ad anything to do with the ehiction. He
atten<led one committee meeting just as it was being dis-
missed and aftei- all the business wa.s done. The respond-
ent was not at this meeting and had but a slight ac(piaint-
ance witli Emigh, and never asked his aid nor knew that
he was working. He did but veiy little, if an^'thitig, ex-
ce))t on polling day, when he strolled altout and chatted to
people who were coming to the poll. He had no work as-
signed to him to do, and it would be going counter to
many ca.se.s to fix upon the respondent any responsibility
for his acts. I refer to the North York Ga.se, H. E, C, 70 ;
Wetland Gase,ih. 192; London Case, ib. 215; East Peter-
horo Case, ib. 245; North (rreij Case, ih. 306; South Ontario
Case, ib. 430, and South Norfolk, ib. 6G0.

There is not sufiicient evidence to establish the charge of
Littleton having been bribed by Depotie. He asked for
the loan of Si from Depotie after he had voted, and it

It ■ '

EAST Minnr.ESF.x.

2r)r>

was i^'ivon him, Ixit the rviilcnco docs not ooiincot it with
till.' voto pivviously i(i\rn, ainl soiucthiiii,' moi't* than tlio
iiicic liMidin^^ must h<j shown when tht; vt)tini; is over.

The char<,'(' of p(>rs()nation hy Nathan Dalo is cMtahlishcd,
liiit there is no cvickMieo which wouM warrant his heing
ciilliil an agent of tho respondent. He hnstleil al)out ono
of the polling-booths, hut his conduct was not necessai'ily
more than men; otUciousnoss. I refer to the cases ah'eaily
cited US to Kmigh.

Tile cliarge of personation of Iveonan is also niado out,
linving regard to the interpretation which is put upon the
words "assumes to vote" in sec. 1 ')0 by a referencu; to soc. 1 J)S ^
R. S. O., cap. 10. The latter section declares that any per-
son who a[)|)lies for a ballot i)aper shall V)o deemoil to ten -
(111' his vote, or to offer or "assume to vote." See also /Jr//.
V, Ihit/nc, 4 H. k. S. 715. But ui)on the evidence T do not
find tliat Macdonald connived at this personation or that
the respondent is afi'ected by it.

Tho treating of Donahay by Mr. Bartram is about as in-
nncuous as ai\y consumption of spirituous liipior can be.
Mr. Bartram had been a successful canilidate in the muni-
cipal contest and he treated because he thought he owed
I) mahay a drink on account of his election.

There appears to have been di oiking both inside and
outsid.' the polling liooth where Mi'. Robert Taylor was De-
puty Returning OfHcer. But all th'> ofheials there, (>ngaged
on both sides, participated in this consumption of'li([Uor.
Tlie person sent for it was Samuel Moore, who also got
some of it, but it is out of the (picstion to say that this is a
corrupt practice afi'ecting the respondent. It was, in fact^
a eombination treat joined in by the ofHcials on lioth sides
nt that poll, and was not a breach of the election law, ac-
cording to the Xoiili Ontario C(t^r, H. K. C. 7s"), TO-'J, and
KorthVork Case, H. E. C. 62, Qi).

It was argued that Hurley hired a team from Hiscox for
Use on polling day, and that this infringed sec. 154. This
is not a charge in the particulars, and I think should no t
he added, as we have been almost unprecedentedly indul-
33 — VOL. I. B.C.

•

(

tl-.

' 1

»l

25a

PROVINCIAL ELECTION.

gent in allowing additional particulars, some on the first
day of the trial, and many more on the second day. There
is, besides, not enough evidence to say that this was
against the statute. No hiring is proved, and the team
may have been used to convey persons other than voters,
e. g. committee men and canvassers. See West Toronto
Case, H. E. C. 98, 120.

I am not prepared to hold that the treating by Williaiu-
son on polling day was illegal and corrupt, as he said it
was his general rule to treat wh.-^n he had the liquor, atid
it had nothing to do w-ith the elei;tion. Other Judges have
excused such things, especially w.ien the election day was
as here, very cold. See North York, H. E. C. 62, and South
Norfolk, H. E. C. 6G9, and the recent Lennox Case.

Next comes to be considered the alleged treatin" of
meetings of electors under sec. 151 by the tavern-keepers
Depotie, Daly, and Woods. But it is objected by the
respondent that these particulars are not admissible under
the allegations of the petition, and that there is no juris-
diction now to amend the proceedings by evidencing the
charges. The petition is in the usual general form sanc-
tioned by the practice and the Rules of Court Nos, 2 and
G; Beal v. Smith, L.R. 4 C. P., 145, and South Oxford Ca.%
H. E. C, 240. The fourth paragraph of the petition is in
my opinion comprehensive enough to cover these charges.
The term " tieating" therein used is a generic word which
may properly embrace all kinds of entertainment from the
most harmless to the most baneful. The context shews
that it is used in a sense indicating that the candidate and
luH agents had acted illegally in treating. Under this alle-
gation, considered merely as a pleading, it is competent
to give particulars and evidence of any acts of treating
which would incapacitate the respondent and avoid his
election. In Graoit v. l\igham, 3 C. P. D., 80, the
.Imlo-es deal with the words " treat or treating" and ente'-
tainmentof "meat and drink " as synonymous expressions.
Althougli sec. 151 was originally placed, with other provi-
sions, und«'r the general heading "keeping the peace ami

EAST MIDDLESEX.

257

ir.tud order at elections," it is now found in the Revised
Statutes, otherwise grouped with sections which relate to
ti-eating, and under the general heading " Prevention and
pmiishuient of corrupt practices and (;ther illegal acts at
t'ltKitions." From this I infer that the Legislature regarded
s'C. 151 as one which savoured of treating, not in its
.strictly corrupt sense, but in a manner to be prohibited
liocause of its tendency to induce corruption and disorder.
To adapt to this matter the language of Cockburn, C, J.,
in an analogous case, Hargreaves v. Simpson, 4 Q. B.
D., 405, the whole scope, and I may add collocation, of the
sections seems to be to deal with it as a form of treating —
as a milder and le.ss noxious form c f treating — but still an
olfence coming under the same hrad. Tliat decision also
applies here, as it was there held by the Court that the
^'iving of refreshments to voters at a municipal election
on account of their having voted was technically and sub-
stantially " treating," though not so denominated or de-
Hned in the statutes making the practice illegal. It
is not necessary to make any further observation on the
ivLont West Simeoe Cane (<() than to say it does not apply
liore. In that case the petition set foith that the respond-
ent and his agents were " guilty of corrupt practices as
tit'tined by the Controverted IClections Act." 'J'iie Judges,
inuior this language, felt compelled to resort to the Act to
ascertain what were the corrupt practices complained of,
anil they held that the Act did not include thereunder the
giving of refreshments on polling-day as pnjhibited by
section 153, Here the pleader does not fetter himself by
any reference to the statute, and we can give to the wor 1
"treating" its proper and obvious signilieaLion.

Having thus overcome the diftieulty of form, it remains to
consider whether the treating m evidence is contrary to the
law. The first treat was given at a meeting held ni Daly's
tavern, where about ten of the local committee were met
to j>o over the voters' lists and ari-ange as to duubtful
Votes. Depotie, another tavern-keeper, attended, and in
tliat capacity, to encourage trade, ordered liquor foi those

((/) ante p. il'8.

Ill

258

PROVINCIAL ELECTION.

thus engaged. The next meeting was at Depotie's, at
which hut few attended. Daly was present on the com-
mittee and reciproci-ated Depotie's efiorts to keep the trade
liiisk, and so did Woods, anotlier tavern-keeper. Depotio
also treated i)Oitr encoiwat/er les autres. The same sceiii'
was repeated at the tliird meeting of the committee whicli
was held at Woods's tavern, and about the same persons
■were present and for the same purpose. The great jirepon-
derance of authorities forbids the conclusion, that any of
these committee meetings was a "meeting of electors
M'ithin the purview of sect. lol. In the Smifk Grei/ Cane
H. E. C 57, 61, the distinction is plainly marked between
meetings of electors to prom )to the election ami meetings
of conunittees, and as to the latter, M')wat, V. (\, says: "1
.do not think that reasonable refreshments furnished Jxin^'i
jiiU to meetings of committees are illegal." Of the same
opinion was llichards, C. J., in the Wed Toroiito Giisfi, H.
E. C. 100. There is also an explicit decision of Drapei-, C.
J. A., after the original of the section was am.'uded as it
now stands in the Revis(!(l Statutes, in XortJi VictorldCdfH'.
H. E. C. pp. 257, 25!), and 2o;). After an election m^etin;,'
some of the candidates' friends adjourned to a hotel and re-
mained consulting about the election (i.e. practicallv a
committee meeting), and it was deciiled that it would be an
extreme construction to hold the entertainment of sucli a
meeting to be a violation of the section in (piestion. And
again the same learned Chief Justice , in the Halton Cas^c
H. E. C. 285 said " a meeting of a connnittee to aid in the
respondent's return, at which refreshments were provided,
could not, uidess in some (.'xtreme ease, be deemed a bivaeli
of the provisions against treating."' A somewhat conti-ary
view to this is taken for granted by Gwymie, J., in tln'
Novt'r Givii C,M'', Fr. E. (!. pp. 'My.\ and Soi, Init that may
be fairly considered as n-utralized by his manner of re-
ferring t) such a lU'^eting in the \Veilitii<l Cii-)e, H. E. C. ]i.
!'.)(). The object of the treating we are considering was
manifestly not with a view of j>romoting the ele'ction, but
of promoting the interests of the publicans, and the com-

EAS'l" MIDDLESEX.

2yj

iiiittoe meetings tliere asscmbk'd were not " meetings of
electors " as understood in election law.

I liave now exhausted the list of direct charges which
Mr. McCarthy argued vitiated the election, and I find but
(iiie proved. That one, however, wuidd avoid the return if
it is not saved by section 159. Against this two lines of
iirgunient were advanced : First, that the candidate's own
a(lnii.ssions she^ ed him to be guilty of undue and corrupt
treating, and second, that owing to the withdrawal or eon-
eeuhiient of Jirvis, a chief agent, evei'y presunipti(jn should
tie made against tlie legality of the matters with which he

)>< -onnected.

I'ht're is, in my opinion, no foundation for the first im-
putation. 'J'he per.sonal expenses of the candidate were
899. It wiis suggested that at least half of this went in
reating, but he s.iys his canvass lasted some forty days;
that his exj)enses (for self and horse) per day would aver-
age about two dollars. ;ind that perhaps $5 of the $99
went in railway tares. Ordinarily he was given to tieat
the people he met with to the extent of between 25 and 50
cents a day. I believe him when he says (and none the
less because he is corrob(jrated by Mr. Martin, a Conserva-
tive witness who knew hi.s habits) that he did not engage
ill as much treating during the canvass as before it, and
that in legar.I to the manner of his treating there was no
dilioreiice ; that is to say, to use his own words, " 1 treated
my friends, whether Reform or Conservative, in the same
way as before I was a candidate." Ko direct charge of
illegal treating is formulated against the respondent, and
following the yort/t MukHtfi'x Cone, H. E. C. o77, I reject
this treating as any element which .should affect the con-
>icleration of section 159.

As to the absence of Jarvis, it would be more satisfac-
toiy to have had his evidence, but I do not .see that the
it'spondent is to Ije puni>hed or the con,sti(-ueney affected
localise of his disappearance, in the cireinnstances of the
case. Jar\ is is i-harged with bi'ibery, but it is not proved
Ji^ainst him. There is no evidence to counter-balance De-

If I

III I

Tf^:

200

PltOVINCIAL ELECTION,

potie's oath that the %5 he obtained from Jarvis was a
loan, which he has repaid. Whatever may be suspicious
in this tranaction, it cannot be said that guilt is either
proved or to be inferred. What other matters with which
Jarvis was connected can be considered as affecting the
election ? These, that he started a subscription to defray
tlie election expenses of the respondent, and that there
were sums upon the list amounting to between $30 and
$60 ; from Jarvis, the respondent s financial agent Macdon-
ald obtained " in the neighbourhood of $35." Now it seems
impossible to link together a number of assumptions and
conclude, as was argued, that it is to be inferred that suffi-
cient money was expended through Jarvis as might be rea-
sonably supposed "to affect the result." We do not know
that any more was subscribed — we do not know that any
more was collected than was handed over to Macdonald, .
and we do not know of anything expended save as appear-
ed in the evidence at the trial.

The presumption is always in favour of honesty and
legality and fair dealing. The absence of Jarvis, if wilful
(as it appears to be) would cast doubt upon his conduct,
but it would be unjustifiable to carry the presumption to
such a length as to set aside the election and vacate the
seat. This is not a case of ordinary litigation in which the
failure to call an important witness may turn the scale
against the party who might be expected to call him. The
charire against Jarvis is one of bribery, and it is the busi-
ness of the petitioner to make that out. If he had given
evidence to show that more money was in the hands of
Jarvis than was paid to Macdonald, and that such money
was expended for election purposes, otherwise than through
the financial agent, then the onus might, and I think would,
rest on the respondent to shew that the disbursements
were for legitimate purposes. But nothing of this kind
appears, or can in my judgment be reasonably inferred froi'*
what we have seen and heard, in this most pertinaciously
contested trial. That class of evidence, noteworthy by its
absence here, was adduced and formed the reason of the deci-

EAST MIDDLESEX.

t!Cl

sion and language of the jtulges in tli ^ cases cited to us ; See
iilso The South Grey Case.H.E.C, Gl.a.id West Toronto Case ,
H. E. C, 105 ; The Bradford Cane, 1 O'M & H., 30. See
also liorth Victoria Case, H. E. C, 265, where an impoi-tant
witness was not procurable, and the North Ontario Cane,
II. E. C, 342, and the Kingston Case, H. E. C, 641.

So far as the financial agent was concerned, I think the
fair result of his evidence is that he properly and lawfully
tjxpended all thp money that came into his hands, amount-
ing to the very inconsiderable sum of $20, from the trea-
surer of the Reform Association of East Middlesex (part
of which was paid for the outlay in calling the convention),
and the further sum of about $35 from Mr. Jarvis, in all,
as he says, between $50 and $00. There were in all 5,319
votes polled, and the respondent's majority was 85. The
Judges in these trials are to regard not only the rights of
the parties, but also the rights of the electors of the con-
stituencies and of the public. That is pointedly adverted
to oy Mr. Justice Grove, in Aldridge v. Hurst, 1 C. P.
D., 414, where he says: " The right of petitioning shews
that the act contemplates not merely the rights of candi-
dates, but the rights of the 'constituency, to insure that the
person really elected should be their member; and this
without the cost and disturbance of a new election." The.se
observations having primary reference to the claim of the
seat for the opposing candidate ai*e not without their appli-
cation to sec. 159 of the Ontario Act. Adhering to the
construction of this section,which I endeavoured to explain
in the East Simcoe Case, (a) my conclusion is tliat in this con-
stituency another election is unnecessary and useless, because
no such acts of corruption or illegality were committed by
or on behalf of the respondent as could po.ssibly affect the
result. It would be unjustifiable to expose the constitu-
ency to the expense and trouble of a new election, and the
petition should be dismissed.

It is a case for apportioning costs, and in my view the
petitioner sliould get costs of so much only of the petition
and trial as he has succeeded upon.

(rt) post 291.

ifr

202

PROVINCIAL ELECTION.

Cajieeon, J. — lam of opinion the election of ihe re-
spondent should be set aside on account of brilieiy and
other conn] it pi actices, committed by his agents. The pay-
ment if ^1 by Joseph A. Depotie, an agent of the respon-
dent, t) Willis Moxley foi- his vote, was clearly made
out. I think it was also established, tliough not with the
same degree of certainty, that the said Depotie was
guilty ot aco .upt practice in giving to Thomas Littleton
5:51 alter lie had voted, on account of liis having voted, and
by reason of a previous corrupt undei'standing Ijetwetn
them. 1'his man, Depotie, after seeing ]\Jr. Jarvis, one of
the principal supi)orters and agents of the respondent, and
I'eceiving -So from him at the hall, where there was a meet-
ing ol the su})porters of the respondent, went late at niglit
to see these two voters, Moxley and Littleton. There is
ijo reasonalde solution of his going there except for the
]iurp(jse ol securing their votes, and by the means that
weie used. The very manner in which the money was
placed bj- Depotie in Littleton's pocket, though Littleton
atteuqits to explain the act by saying his hands were dirty,
is a strong circumstance to show that the money was not
intended b}- either party to the transacti(»n as a loan. It
was a device to enable the receiver to sa}' that he had not
been paid or lent the money on account of having voted
and it may be if Power had not proved unfaithful to the
confidence placed in him, the truth might not have been
elicited through that ease of conscience, or ignorance, which
induces the uncantlid to satisfy themselves that if the ques-
tion does not directly indicate the exact traii'-action, it may
be answered without committing perjuiy. Power knew
more than ho would tell, and his manner stamped him a^
an untiuthful witness. In anyer he divulm-d what had
taken plaee, and tliis becoming known, the parti('>. ad-
mitteil that they felt they could not, without danger, uu-
eciuivocally deny, and seek to cover the transaction as U\v
as circumstaiiees will warrant with any show (d reason. 1
have no doubt in my own mind the corrupt practice in re-
.sj)ect ol Littleton was made out. The payment ot !i>4 by

EAST MIDDLKSEX.

2G3

Alex. J. Macdonald, the financial aj^ent of the tospondent,
to Jeremiah Hurley for posting fifty bills, was an unrea-
.sonable remuneration for the service rendered, granted that
such service was rendered on a very inclement da}' and was
worth nioieonthataccountthanitotherwisewouldhavebeen.
I regard this but as a pretext. The fact that in tlie account
rendered by Mr. Macdonald of his expenditure as the
financial agent, no reference is made to this payment to
Hurley, is in itself suspicious, and the suspicion is not
lessened by the further fact proved, that Hurley was driv-
ing a vehicle obtained at Hiscox's livery stable, in Lon-
don, where he was sent for it, according to him, by Mr.
Mucdcmald, for which he was paid nothin;;. The payment
for driving might be objectionable, as hii'ing a person to
•hive a team might be held to be paying for the conveying
voters to the poll. The man who accepts twice as much
as a job is worth is not the most likely kind of person to
work for nothing, unstimulated theieto by the previous
knowledge that he had been paid too much for something
else. This Hurley also received money I'rom Mr. Macdon-
ald to "treat the boys," of which expenditii'-'3 noaccoimtis
taken in the financial agent's return of his expenditure,
if the upholding or avoiding of the election dei)ended
upon this payment, I should be obliged to give the ben-
etitof the doubt in favour of the respondent. As a mat-
ter ot belief, however, I am satisfied the ])aymejit of the !5-i
was not made solely on account of the characcer of the day
ou which the work was done, and that had an election con-
test not been going on the service would not have been so
liberally rewarded. I am of opinion in the treating of Samuel
Moore, and the lending or giving him 50 cents or §1, which-
ever was the sum, by Henry Emigb, wei'o acts done by
Euiigh with a \ iew of intlueneinir Mooie to vote ft)r the
respondent. 1 think Moutes account, corrol oraicd us it is
in part by Arthur Jetirey, ismore to be relied on, under the
circumstances, than Emiglt's. The c\ idence on behalf of
the respondent 'n\ regard to Moore is to make him oul a
loose fish, and under the circumstances, it is a little singular

34(— VOL. I. E.C.

it.

y 1

ipiT?*'- ' '"

■2G4"

PROVINCIAL ELECTION.

accoi-flinjr to Eini<j:h's own account of the transaction tliat
thoy shmiltl have gone together to Jeffrey's ami taken a
drink, and on the way hack he should have given or lent
him the money. He admits that he asked Moore how he
w;v.-i iroinjr to vote, and Moore said he didn't know. Tliis
answer indicated he might be cultivated with protit.
While I rely on Moore's account of what passed between
liini and Eniigh, more than I do upon Emigh's, the diHi-
culty is holding the respondent should be affected by his
act, not by reason of Emigh not being his agent, which I
tliink, as a member of the association, he was, but by rea-
son of Moore's own statement that he didn't ask him to
vote for the respondent, or not to vote; and, as in the Hur-
ley case, if the election was to be set aside on that case
alone, T would give the respondent the benefit of all the
doubt there is presented by this statement of Moore's,
that he was not asked to vote or not to vote.

I think the treating at Daly's, Woods's, and Depotie's
taverns, of committees formed to promote, and there as-
sembled for that purpose, the election of the respondent,
was made out accordinrj to both the evidence of James
Daly and Depotie himself. Depotie treated, and so di('
Woods. The going into these charges was objected to as
not covered by the petition. I think the objection is not
entitled to prevail. The petition charges that treating took
place contrary to the Act, and I do not think it can be
said it is necessary to specify in the petition the particular
kind of treating to let in evidence, where the particulars
warrant it, of any kind of treating that is made a corrupt
practice by the Act. I am of opinion section 151 was
speciall}'' directed against the treating of committer's com-
posed of electors. It declares, "No candidate shall, nor
shall any other person, either provide or furnish drink, or
other entertainment, at the expense of such candidate or
other person, to any meeting of electors assembled for the
purpose of promoting such election, previous to or durin^;
the election." A committee composed of electors, wholly
or in part, whose object in assembling is to take ine;isures

EAST MIDDLESEX.

265

to secure the return of the candidate tlicy support, cer-
t;iinly comes within the terms, " meeting of electors asseni-
lilcil for tlie purpose of promoting the election." Who are
to be taken as the actors in the object to {)romote the ejec-
tion under this language? The person, if there l)e one,
culling the meeting in- those assembled ? A general meet-
ing of the electors called to hear the speeclu^s or aihh-es.ses
of the candidates, can hardly he deemed assemlded to pro-
mote the election, as far as those assembled are concerned.
They come to hear, not to act; while in the cfise of the
committee it is assembled to act in the promotion of tlie
flection; and when the hitter part of the clause is consid-
orcd it appears to me the latter kind of meeting is indicated
very clearly. It excepts fron the operation of the pro-
hibition in the first part any entertainment furnished by
the candidate, or other person, to any such meeting of elec-
tors at his, her, or their usual place of residence. It is most
improbable that any general meeting of electors will be
assembled at the pi'ivate residence of an}' candidate or
agent. What the Legislature was aiming at was the pre-
vention of persons being induced to act and assist the can-
didates by drink, or other entertainment, being furnished
to them at hotels or other places of meeting, not being the
residence of the person providing it. There is no decision
that can be said to have settled the question now presented,
and the language of section Gl of chap. 21, 32 Vic. (0.) is so
ilifferent that the change itself strongly leads to the conclu-
sion that the construction I have placed upon the present
section is the one intended it should bear. Section 61 of
the Act of 1808 enacted : "No candidate or other person
iii\&\\,iuith intent to promote the elect ioti,iurnis\i entertain-
ment to any meeting of the electors assembled for the
]iurpose of promoting the election." It would seem absurd
to say that when the friends of a candidate assembled for
the express purpose of promoting his election, and the can-
<li'late or some one for him furni.shed entertainment, he
<liil it with intent to promote the election, and uidess the
JueetiMg was one of mixed character such intent could hard-

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ly bo hold to exist. Und.T the Act of ISfiS, in the S,>>'tJ,
Grey CaHP, Mowat, V. C, said, H. K. O., pa<,'e T)?: "I ^lo
iu»t tliink ivasonaMc rofreslinu'iits furnishnl innui. fhli to
coinniitt(!<'s are illej^^al." To tlio like oHect is the opiiiinu
of Chief Justice Richards in the Wasf TorotUo Cuxr—
H. E. C, page 100. In the XiH-fk Giri/ Case, Gwyiine, J.,
held that members of tlie Conservative Association as-
sembled at a tavern were electors assembled to promote
the election of the candidate of the association, under tli«
said section Ul, after it had been amended by the Act nf
IHJ-S, when it assumed its present shape. The .same leuni-
ed Judov, in tlic West Weill njfon Cane, H. E. C, 2U,
held treatin<jf a general meeting of the electors a corriijit
act. In tlie HnlUm Case, H. E. C, 285, Draper, C. J. A., <x-
presscd the opinion, " tlint a meeting of electors all one way
of thinking to stipport a particular candidate, or of a com-
mittee to aid in his return, at which refreshments were pro-
vided at the expense of one or wmva of thein.couhl not, un-
less in some extreme case, ])e deemed a bi'eacli of the pio-
visions aijainst treatinir." The facts in reference to wliicli
this opinion was expressed do not appear, and I am unable
to .say whether it was a nice oh'itev dictum or not. The
case went to the Court of Appeal, but the point was not
there raised. It is well that the point should be .settled,
and it may as well lie so settled in tliis case as any otlier.
My learned brother, the Chancellor, does not take the same
view that I do, and I presume the case will have to receive
the consideration of the Court of Appeal.

It may be oKserved that treating a general meetin<jf of
the electors would come under the designation corrupt
treating, owing to its extensive character; but why shouM
the treating of a mixed miieting be more objectionable than
treating a meeting all one way of thinking, if not corrupt-
ly done. The furtherance of the cause of tempeiaiue
would not be greater in the one case than the other.
Treating a general meeting might of course more readily
cause a bieacli of the peace.

KAST MIDDLIOSKX.

207

The case of the personation of Joseph Ling hy Nathan
Dale was established. I Jut the a,','ency of Dale does not
ajiinar to have ln'oii made out. Tiiu nttcnijjt of Keetuin
t(i personate Tierney was also established. I think whether
he voted or not, he did suflieient to ))ring his act within
.section 156 : Reg'ina v. Hoijne, 4 R & S, 715. There was
no evidence to shew that he was an agent of the respond-
ent, or that any agent of the respondent was a party to liis
attempt. I do not think what took place at the poll suffi-
cient to fix the respondent with responsibility. It does not
appear that the respondent's agent, Macdonald, was aware
of the attempt at imposition, assuming that he ilid say
Keenau had a right to vote, as it does not appear that he
knew he was not the person he claimed to be, that is,
Tierney. I think the charge of treating on polling-day by
Wil]iam.son or McNames cannot be .said under the decisions
to have been corrupt, though I luive no moral doubt the
li(pior was provided to be used for the purpose of aiding
tliem in inducing voters to go to the poll and to influence
their votes. There are those who value the franchise so little
that while they would hesitate and perhaps refuse directly
to sell their vote, they would be influenced by the good
fellowship supposed to be promoted by a bottle of whiskey
to vote as its proprietor might wish.

The way the liquor was furnished indicates that there
may have been a settled policy to use this subtle agency
extensively, and w^hile I do not find the charge, as made,
proved, it has not been without its effect upon me in lead-
ing to the conclusion the election should be avoided. The
hiring the livery-stable keeper Law.sou's teams on polling
(lay I think, having regard to what was sworn to, was
nut made out, but I have a very strong conviction that
their use was in some way compensated for, and that the
facts with reference to it were not drawn out. Of course
it is possible, but quite improbable, that this young man
Lawson, who was under age, was taking so much interest
in the election as to bear so considerable a loss purely
from party considerations. It is to be observed, too, that

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PROVINCIAL ELECTION.

th<Te was no difficulty in procurin!;- liis evidence on bolialf
of the defence in respect of a matter that was not cliarovd
in the particulars, while the testimony of Mr. J.irvis was
not procunihle, though he t(X>k a prominent part in tlie
contest. With reference to the charges of treating hy tlie
respondent personal!}', I think nothing oonupt or unusnal
was proved, hut he certainly did not cany out the letter
or spirit of the Act in the way in which he returned his
personal expenses. The provisicm is exceedingly clear and
specific, and was intended by the Legi.slature as an im-
portant safeguard against the expenditure of money by a
candidate or hi i agent improperly in jiromoting his election.
It is fri-M want of ob.servance by him of the requiremeiit
of the 8t;-.*.ite in this respect, and the ab.sence of Mr. Jar vis,
and tij'j fau'iri' to account for the money subscribed as the
fund . M of ' ' li ^!)e expen.ses of the election .should be
delV-iycO o . Ann those personal to the respmident, tliat
prevent my f' 'jling justified in giving to him the benetit
of .section I ')!). With reference to the amount expended by
the respondent jjcrsonall}', it ceitaiidy was not large, but
spent at the rate of Si per vote, the price paid for Moxley s
and Littleton's, it would go a long way. 1 cannot say the
corrupt practices proved, taken in connection with other il-
legal acts anil practices shown to have exi.■^ted, were of such
trifling nature or of such trilling extent as not to have af-
fected the result. The maioritv certainly could not be
convertt.'d into a nunority by striking off the votes tainted
with corruption. But almost every corruj)t practice named
in the Act was resorted to, and it is ipiite impossible to say
that the exidence by any mi.aiis laid them all bare.
There was ilirect briliery, |)ersoimtion, doul)le voting, treat-
ing meetings of connnittees, and other treating, to a very
considerable extent, strong suspicion of the hiiing of
teams, and an ab.sence of jtroper detailed accounts Ity the
respondent of his own expenditure, and of the fund raised
t'oi- the purpose of defiaying the expenses of the election.
Section 188 of the Act declaies no jiayment except the
perscnal expenses ot the candidate, and no advance, loan

KAST MIDDLESKX.

2Gl>

or deposit for th(> pnrp()S(> of the eloction, sliall be made !>}'
or on behalf of any candiilat<i at an eh'ctioii ht-furo or
diiriiiiX or after such election, otlierwi.se than through an
.-iirent or agents whose name and address oi", names and
addresses, has or have been declared in writing to the
returning officer on or before the day of nomination, liy
section l>S5 it is declared all persons who have any bills,
cliarges, or claims upon any candi<lat'> for or in respect of
any election, shall send the same, within (me inotith from
the day of the declaration of the election, to sucdi agent or
agents as af"oresaiil, otherwise such persons shall be debarred
ot their light t(j recover such claims, and every or any
nart thei'eof. Jiv sub-section 4 of this clause the a-'ent is
not permitted to pay or allow any bill without the authoi-
ity of the candidate and the agent's own approval.

By section INU a detailed statement of all election ex-
penses incurred by or on l>ehalf of the candidate, includ-
ing payments in respect of his pergonal expenses, shall
within tw<) months after the election be made out and
signed l»y the agent, or, if more than one, by every agent
who has paid the same, including the candidate, in case of
payments made by him, and delivered with the bills and
vouchers lelative thereto to the returnin«r otficiT. And the
li turning oftieer is recpiired within fourteen days to cause
to be inserted an abstract of such statement, with tlie sig-
nature (»f the agent thereto, in some newspaper publishe I
or (!ireulating in the Electoral Jjistrict. And an agent or
candidat(! making default in the <leliveiy of such statement
shall incur a penalty not exceeding i?2.) lor every ilay
(luring which he makes defaidt. All this particularity, ami
the penalty imposed for non-delivery of the statement,
show that the Legislature attached nnich importance to
it; and where it has not been observed, and a corrupt prac-
tice, sufficient before the amendment of the law ma le by
section 15!) to avoid the election, has been proved, tht>ugh
under that .section the election mi^ht not have been ^et
aside, the election .should be avoided. The respondent has
in this ca.se failed to make such a detailed statement. 'J'he

yr-

■270

I'HoVINf'IAL KLECTION.

■■m

sfatt'inent ji^ivos no information as to particular persons
piiiil, or tin; nmonnt to on oil person, and thus fails to show
tlie cliarartcr of the expon<liture in respect of each pay -
in<,'nt. The important defect here is, there is no account
wliatever of tlii5 expenditure of the fund that was raised
M'itli the knowled;,'e of the respondent to pay the <'lectioii
expenses otlier than Ins personal expenses, except in so far
as that futid renched the hands of tlie financial atjejit. It
Avas (juite hiwful that a fund should l)o raised to pay the
election expenses, hut unlawful that any part of the fund
shouM he expended except through the financ! ' agent or
agents. And it appears to me it was the mity of the
respondent to show how the money was aj^plied. He has
not only not done so, hiit the manager of the fund, a former
secretary of the Reform Association, from the evidence
appeared ti he ke(»ping out of the way to avoid heing
examined. The evidence also estahlished that several per-
sons suhscrihed to th(> fund, the amount whereof, from the
ahsence of the person who could tell, is left in doul>t, though
it was shown to he considerahly greater than the amount,
paid over to the financial agent. It also further appeared
that Depotie got five dollars from tlie person who held the
finnl. and makes the pretext that it was horrowed, and
the farce was gone through of its heing repaid the day be-
fore the trial. Shortly after the receipt of the money its
recipient, too, proceeded to Moxley and Littleton, who got a
portion prohahly of this very money for the purpose of
paying for their votes. It seems to me under the circum-
stances, coupleil with the fact that a majority of 180 for
the Conservative candidate against the respondent at the
previous electitm was converted at this into a minority of
8(), the election cotild not he allowe<l to stand, and in su|>-
■jtort of the view I have expressed as to the duty of the rc-
sjjondent in regard to the fund, I quote the following opin-
ion of Baron Fitzgerald in the Jh'ffdxt Cusic : I O'M. & H.
285 : " I have no reason to believe that a suhscriptioi*
instit tted for the purpost^ of paying the expenses of a cum-
<lidatc and to relieve him from any expense in th» i.>atter is

EAST MIDDLESKX.

.71

in anvway an illof^al or unconstitutional ]>roceetllnfj. It
would hohovf a caiulidatL^ to look well that the 'Jionoy of
\vliicii liu availed hinis'df of his own knovvledj^o is leijiti-
niiitcly applied, because lie incurs a responsibility the nio-
nuMit he holds himself out to be elected by those means."

The Court is not in tliese trials restricted to the consid -
oration of the interests of the petitioner and respondent:
their duty re(inires its members to havt! re<jard for the ob-
ject of the lof^islature in its efforts to secure purity of elec-
tion and the public security involved therein. They should
not permit the safeguanls erected by the lej^islature to be.
thrown down and disre^'arded, and when the law prohibit-
ed any payment, advance, loan or deposit for the purpose
of the election except through the financial a«.^ent of the
o.indidate, the Court sliould rather strive to enforce the ob-
servance of the prohibition than to be astute to relieve a
candidate in consideration of the fact that lie had beeti
pf'isonally free from actual or intentional wron<^-doin<x.
The petitioner should have the j^'eueral costs of the peti-
tion and trial.

From these judgments thei-c was an appeal to the Court
ot Appeal, which was heard on October -tth, 18S i.

MeCdvfhy, Q. C, for the appeal.
»S. //. Blake, Q. C, contra.

November 11, 188-1.. nA(!AiiTV, C. J. O.— Altliough not
necessary, in the view I take, for the decision of this case,
I think it right to give my o|nnion on the proper construc-
tion of section 151, as to furnishing drink or other enter-
tainment "to any meeting of electors assembled for the
1^. .So — VOL. I. E.c.

PUOVINCIAL ELECTION.

purpose of promoting such election previous to or duriiiu-
such election."

The learned Judges who tried this petition dirt'euil
widely in their views. The Chancellor held that the sec-
tion had no application to conunittee meetings. Cliirf
.fustice Cameron held that it did so apply.

It may he possiMe that the IVamers of this enactment
nuiy not have sujiposed that it applied to such meetings.
( )ur duty is to construe the words used in their plain, olivi-
ous, grammatical s(Mise.

If clectois assendiled hy arrangement to promote the
elfctidu of the candidate they wished to elect it is not
easy to hold against the language used, whether they Wfiu
called a conunittee, or met as connnittee-men, or under any
other name, that they did not in fact compose or amount
to a meeting describeil in the section.

It seems to m«! to he more a plain <piestion of fact than
of legal detinition. Did they assemble by arrangement
with that ])urpose in view i If rio, it was a meeting
pointed at by the section.

After the nomination of the candidate committees are
generally fitiniud, a general or central committee, with
))ranehes in dillerent localities, the branch or local coui-
mittees gcmi-ally assuming tlu' management »f matters in
their divisions, to examine the voters' list, to stimulatt;
vome, to canva.ss others, to Arrange for the bringing u\) of
\ oter.s to the polls, &c.

They arrange among themselves their places and times
of meeting. Their nund»ers may be large or small. We
know that in cities tiien- is sonntimes a large central com-
mittee and ward eommittees. They may vary in nund^ers
from lilty to a do/en, or less.

In the case before us at some of the meetings only ten
or twelve were present, at another twenty or thirty were
{Assembled.

I do not see how I could hold that any such meeting-^
were not clearly within the statute.

EAST MIUDLESKX.

273

enactment

If tlioy «li(l not asstuiMo to proinoti- tlie election, I can-
not see what motive hionght tlieni together.

Tlie promotion ol' the ekctiun ficeiiisto be the .sole rea.suu
(if their existence.

It is not ditheult to suggest an apparently startling re-
sult of a too rigid application of this construction.

It is asked cannot two or three voters meet together to
(;o over the lists and make suggestions, kc. ?

I can only answer that it will l)e time enougli to pass
judgment on sueh a case when it arises. I do nut hold that
!in fortuitous meeting of two, three, or a «luzen eleeturs dis-
cussing the best means of advancing their candidates' in-
terests, need fall within the words of the enactment. A
iiundier of voters, all of one party, might, without any pre-
nrr.ingement, meet in a tavern.

Such a gathering would not, I think, answer the des-
(•ri[ition of "a meeting assembled to pruuiote tlie election."
It.s coming together could not be foreseen or provided foi'.
This Court held in the Mutikoka Cane, that when a ean-
(lidate publicly announced that he would meet the electors
Jit a named time and plac , and they assembled aceordiiii
ly, that such a meeting v. as within the statute.

[ must hold that when a committee — general or local —
(•insisting ui voters, meets at iui agreed time and place to
anange fur the success of their cantlidate, I cannot pro-
nuunce it outside the Act.

Some of us remember the abuses of elections in past years,
when committees for many days, if not weeks, before the
• lay of polling, lived at the cost of the candidate.

I am not ])repared to .s;iy that even und( r the mueh im-
proved modern .^y.stem of elections, serious abu.ses, and
nd.s.silijy .seri(jus means ot undue inlh'eiiee and corruption,
iiiight not be used, if by law all committee meetings are de-
ilared to be fiee iVom the opeiatioii of this section.

I am therefore constrainetl to liold that the treating at
these meetings, provttl in evidence, was an illegal practice,
and that, at hast in one case, it was dune bv an agent (;f
the respt)ndent.

»K-

274

I'ROVINCIAL ELKCTION.

|||L

But, on full consideration of the matters in cvidencr, I
am williTiLj to allow that tinder the renietlial or saviiijf
clause the eIt;ction ou^'ht not to be set aside. On this head
the law, as lo the application of this secti(»n to nioetinjLj.s
of electors, was not in a very certain shape under some of
tilt! decisions of learned Judges, and it may have been that
the treatini,' in this case was not within the prohibition.

As I have already stated in the ICitst Simcoe CdKc, (d) 1
agree in the marked distinction which we should make he.
tween an agent entrusted by the candidate withjthe general
management of the election, or one who, by supei'ior energy
or aV)ility, is allowed to take the lead in such management,
and the isolated actions of a person whom the law fastens
on the candidate as one who must be regarded as hisajnrent.
In the hitter case the illegal practice begins and, as it were,
enils with the perpetrator.

I cannot bring this man Depotie into any position uf
general trust or managi'inent.

I agree in the argument that once a corrupt act is proved
to have been committed by the candidate, or an agent, the
election is in law avoided — that the burden of .averting
this conseijuence. under the relieving clause in this act,
must miiinly be thrown up m the respondent, so fai* as hi>
own liability is com; 'rned. We have of course also to C(m-
sider the interests of the constituency as to ex[>enses and
uselessness of a new election.

The learned Judges agreed that one act of bribery was
committed by Depotie in Moxley's case.

As to Littleton's case, I think wt; may allow the insuffi-
ciency of direct proof, but T think it right to designate the
ti'ansaction as of a most dangerous and suspicious charac-
ter on the part of an agent of a candidate.

As lo Emigh's case, I think it fails solely and only be-
cause agency was not proved.

As to Hurley, the bill-poster, with the difference of opin-
ion between the Judges, I <lo not, sitting in appeal, think
1 should pronounce against the more lenient view.

(rt) post 2!H.

EAST MIUDLESKX.

27'>

The other matters II I'fjod against the Ilp.spon<lent T (hinot
propose to discuss, aixl I have come to tlie conclusion that,
tlioiij^h some of them he open to unfavourahh- comment,
they do not form grounds for setting asid" the election.

On the wlioU>, I think that the Respondent may lie al-
lowed th(! hcneHt of the relieving clause of tlie Act.

The brihery by Depotie, and his infringment ot the law
as to the meetings of electors. The election was carried by
a iiiajority over eighty. Tliere is no peisonal iniputation
against the respondent beyond objections to the form in
which he returned his e.\pense^ ; and the corruj>t conduct
of J)ep<)tie ought not, I think, under all the circumstances
(if the case, to de|»rive eitlier the sitting mendier or the
constituency of the relief allowed l)y the Act.

It may ]terhaps In found liereafter that the oidy way to
stiunp cut the aliomination of bribery is to rend(.'r every
election void in which it is committed by any agent. It may
lie that when it is known that there is no pardon for it —
no e, '-ape from the conseijuences, whether it l)e connnitte'l
MM a large or a small scale — there will be far gieater prolia-
liility of an honest, earnest, and successful ed'ort lieing
made by a candiilate and his supporters to avoid the
otfence.

The Judges have often to regret the unpleasant duty
ca.st upon them in these election trials. It is no small addi-
tion to the task of decision that they are now re([iiired to
decide on the cHect of this section — to draw a line detin-
Ing the nature and extent of the proved violations of the
law.

Ill this, as in oth.er cases, we have the learned trial
Judges forming dian>etrically op])osite conclusions as to
whether tl»e acts proved should or should not be held to
avoid the election.

])ilfeiences in judicial o[)inion, both as to fact and law,
are of constant recurrence, but for obvious reasons, it seems
most undesirable that they should occur in such a matter
as the trial of an election petition. It is to be feared that
in such a case they must deti'act .seriously from the weight

IWT' '^ !S»gl ■ I*

276

PROVINCIAI, ELEC'lK >N.

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mill atitliority of lis^al decision. If so, tliefault is, of conrso,

in the system and not with the learned .Tudi^'es, wlio nnist

dceide accord inj; to their respective convictions. All this,

however, is lor the consideration of the Lei^'islature. By

the Imperial Act of 1MS3 a very strong,' attempt is

inaile to ensure pnrity of ('lections. There is a relieviti-r

clause, hut not applicahle to cases of hrihin^', where if the

Kh'ction Court, consisting of two Jnd,L,'es, make a repoit

e.xoneratini^ the can<lidat(! and his eleetion a;^ent from

sanetiDninij or connivance with the iMei^al practices, and

that they took all reasonahhs precautions, itc, ainl that

the oflences reportecl were trivial, \inimportant, and of Mmi-

ted character, &c., &c., the election shall not he avoideil.

This report must, of course, he with the sanction of hotli

Judj^os, and that statute does not provide for the case nf

dillerence of opinion as to such a report.

In thii /'J tut Xi)i'f/iiiiii'i''i'I(iii'l Cii'd'., decided last J.anuary,
this Court deciiled that the certifying of these fuidingsand
disagreement hy the learned Judges is merely an interlocu-
tory proceeding, and that after one decision on the matter
certified, it rests with the trial Judges to pi'oceed with the
case to final decision.

Burton, J. A. — I have hiit little to add in this case.

f atnee with the Chancellor that ordy one act of l»rihcrv
hy agents was made out, and I agree with him also in the
view that it would be a hurles(|ue upon the law to set
aside the election on the ground of Hurley ex|>ending a
dollar in treating under the circumstances referred to in
evidence.

The point I wish to refer to is, the charge of treating
meetinirs inider section l.')!. I see no reason to chantre the
opinion which I expressed in the Maxhokd, C(i^n\ (ti) that we
oiiirht to adhere to the ordinary rule of ccmstructitm, and
where we find words that are clear and nnamV»iguous we
are hound to interpret them according to their well-known
and ordinary meaning.

(a) ante p. 197.

KAST MinPLKSF.X.

277

It is (|nito ])rol)a))le, nay, I tliink ahnost certain, that
wliiiitliis section wasfii-st passed, col |ocat('(l as it wasuinonj^
timse sections which wore aimed at the preserviii;^ of peace
find t,'ood order, it never was intend(^d to Hp[)ly to n»» re
(•oiniiiittoe meeting's, hut the Le<^islature has since made
)uiy violation of it a corrupt practice. How is it possihh^
for us to sa}', ujmrt from the hinj^uai^e used, to wiiat ex-
tent they intended tlie proldhition to jjro? What \V(^ have
really to consider is not what the Lej^'islature meant hut
what its hin;,'uajj;e means. To <,'ive that lan,;.,'u;ii,'e a con-
struction, contrary to orditrerent from that which the words
import, or can |)ossihly import, is not to interpret hiw hut
to make it. I therefore am of opinion that wlien the
Iiftf,'islatnre excepts one particular class of meeting only,
it would be m )st unsafe for any one to say tliat all others
jire not included.

But althoui,di I think that what occurred at these meet-
ings were corru[)t practices, I am very far from sayin;^
that the election should be avoided in consefjuence of those
or any other corrupt or illegal practices proved at this
eh'ction.

I shall .satisfy myself with sayini^ timt I think the Chan-
cellor's judgment sound, and that it should be atlirmed.

Pattkrsov, J. A. — There are three charges of bribery,
rt'spectiug the proof of which the learnfjd Judges disagree.
Thoy agree that Depotie bribed Moxley, but they disagree
about Littleton, to whom, after he had voted, Depotie grtve
a dollar. The Chancellor thou<'ht the tn-idence insutlicient
to prove that the payment was corruptly made on account
of Littleton havinj; voted. The Chief Justicti was of opin-
ion that that was the proper inference fiom the facts in
evidence, and I think I should have myself come to that
conclusion. There was no dispute as to the fact of the
payment; there was no reasonable explanation of the coin"
cidonce between the visit to Littleton the night before the
polling and the so-called loan to him of the dollar the next
<lay .

I'TS

I'lloVINCIAF. KI.KrTloN.

ti ')

I)r|i()ti(> cainc witliiii tlir drtiiiitioii of iigiiit. as Imtli tli*>
U'unicd ilntlgcs ai,'rff.

Ml'. Miictldiiiild, t)i(> iiiiuncial n;;cnt of tlic ropomlt nt,
{xiitl oil'.! Iliirlcy !i54 for po.stiiijj; MIIh, wliicli .st'L-niH to liavo
lti'4'ii iiion^ (lian would liavf in ttrdinary ciicninstancL's liav«i
Ikm'M paid for that MTvice, and Ix; also gave liiiii a dollar
to tr«'at sonic |ifo|tlf in a liar-rooin after a nMctiiig. 'I'Ihx'
arts tlu' ( Iiit'f .hi.sticc held to lie corrupt, tlu- Cliaiic'llor
taking a nioro Icnioiit vi«'\v of tlicin.

If tlic two Icaiiifd Judges had agrt'ccl that the charuc
was proved, I shouUl not think of disturl)ing that tiiidiiig
in a[tpeai. Hut when they do not ho agree, we ought to
have somewhat dinct, or at h-ast veiy c'onvinc'ing,evi(hjice
that the negative opinion is wrong. I do .lot tliink the
evidence at all (jf that character, 'I'he incident of tin- di,'-
lai", on which the Chief .lustice places stress, secnis to iiie
free fioni the sintuticance which he attaches to it. Al.ic-
donald might have "treated the lioys" himself, so far as I
can perceive, without any imputation of illegality. 1 liiid
nothing whatever in the evidence, h«'vond the bare fact of
tlie payment of the J!?4' for thejoh, to suggest a coirujit mo-
tive in paying it. Such evidence as we have ahout Hurley
is to the etlect that he had alwa3s belonged to the rispoii-
dent's side of politics and atteiuU-d the meetings of the Ivo-
form Association. Ko reason for bribing him is shewn,
and to find as a fact that lie was bribed wouKl l>e to sup-
plement the solitary iact of a j)ayment,w]iich is said to lie
more than the services were worth, but wliich is by the evi-
dence ex[ilained by reference to the weatlier in which they
were |)erlbinied, by suspicions.

Another subject of disagreement, viz., the treating of
Moore by Emigli, and the payment or lo.'in of either r^Ucts.
or $1 by Kmigh to Moore, v tiuld be open to observations
of the same kind, only there is really no plausible reason
given why Emigh sliould have either taken Mooie to the
saloon in tlie adjoining Electoral Division and treated him,
or why he should have given him mone}'. Th Chancellor
says in his judgment, that he prefeired the version of tlio

i.^'

EAST MIDDI-FSEX.

270

.'iiriir ^ivon by Hini;;li to that ^ivtiii hy Mnoro, ami tlio
( 'liii'f .lustico thinks Moore's acroimt, corrolioratnl as it is
ill part Ity Jt'tlVfy, is more to lu! iclicil on, miih'r tlu- ciifuin-
stjiiices, than Kinij^'h's. The ( 'haiu'clloi ex|ir»'ss«;H an nn-
fiivoumblo opinion of .leflVi'V. When the .Jn(l;^'»'S who saw
iiikI hninl the witnt-sHes thus (litltT in their a|)preciaHnn of
tlif vaiut' of thfir eviijence, it is surely iinponsilile fcir an
appt'Mate Court to say that they onj^'ht to have aetctl uputi
either one story or tliu other.

I must say, however, that taking Kmij^'h'.s own vt-rsion,
H'^ rej)orte(l to us hy the shorthand writer, I shouhl have
foiunl it <litru;ult, if not inipossilik', to attrilmte his aets to
any other motive than bribery. 1 shall read some [ • iiij^es
fiKiii his own evidence. [The harned .Judj^'t- hrre leu.l Lh(;
t'videnec! referred to, and continued.]

The (h'tails in which this eviden(;e ditlcivs f ii that of
Moore or .Ielh'>y are rjuite beside the main fact wliicb np-
pi'iirs as piaimy from li^miijh's evidence as from Mooie's.
Tlic - ilyjcjuestion can be, what is the natural and neccssaiy
iidVi-ence ? I .shouhl infer tliat Emi«fli bribed Moore, an<l
iiui,'ht to be reported for a corrupt practice. I see nothinj^
liom wldch it couKi be reasonably infeiied that the iiillu-
ciire of the act itself extended beyond tlu^ m;in Moore, or
ci>uld be supposed to liave been of any wider extent; bnt 1
iiLiicc with the Chancellor tliat it would be impidper to
hoM Kmigh to be an agent of the respondent,

The one fact to which Chief Justice (-ameroii refers as
e\ idence of his agency is tliat he WJis a member of the Re-
form Association. 1 do not think that alone is, under the
evidence in this case, suHieient.

The two corrupt acts of Depotie must, so far as I can
judge from the evidence, be measured, both as to their na-
ture and extent, by what we are told in immediate connec-
tion witi: them, and must be classed as " trilling," unless we
accede to Mr. McCarthy's argument that no act of bril)ery
can be so called. I am not prepared to apply to the sta-
tute that principle of interpretatioi' .

3G — VOL. I. K.C.

«lff» ' '

280

PUOVINC'IAL ELKCTION.

Eiiiii^'h's coiTupt act, though not coiniiiitttMl hy an am'ut,
woulil go into tlio the Haine scale with those of D'-potie for
the [>uij)oses of scrutiny, anil also for the pui'pose of section
15!), if there was such connection between them as wouM
make the one roHect light upon the other, so as to aHoid
better means of estimating its nature and extent. But wc
see no connection between them.

Thei'(i is nothing to link them as parts of a system ; ami
tlierelbi-e the resjiondent gets the benefit of .section l.'»f>,
unless the charge of treating meetings of elector.; intir-

That charge, however, even if established as a statutory
corrupt practice counnitted b}-^ JX'i)otie and the two otlu is,
would rest on facis from which no inference could properly
be di'awn that what was done had any ai)preciable tendency
to atiect the result.

But in my opinion the charges of pr(>vi(!ing or furnish-
injr drink or other entertainment to a meetin^r of electors
assembled for the purpose of promoting the election is nnt
established. The meetings in question were not, as I inter-
pret the statute, meetings of the kintl to which it rehites.

The charge is describeil by the learned Judjres in their
c<'rtificate as " the treating of committees by the said J)epo-
tie and by James Daly and one Woods."

We learn from the evidence and from th(^ juilgment>
■delivered that these were meetings of ten persons, or fewer
than ten, at the taverns of the persons named, for the pur-
pose of promoting the election of the resj)ondent by dis-
cussing the voters' lists and arranging as to doubtful votes.
The treating charged was, on each occasion, bv one of tlie
tavern-keepers at the tavern of one of the othei's.

The learned Ju<lges differed in their application of sec-
tion 151 to the facts, the Chancellor holding that these
were not meetings within the meaning of the section, and
the Chief Justice taking a diH'erent view.
^'As the section stood for 30 years pi-ior tt) l!S7*i, it made it
unlawful for any candidate for the representation of any
county, &c., v/ith intent to promote hia election, and for any

KAST MIDDLESKX.

281

otiipr person, ^rifh intent to 'promote the election ofavysndi
niin/iilate, either to provide or furnisli entertainiiunt, at
tlio fxpensc' of such candidate or other person, to any meet-
in;;- oi electors assembled for the purpose of promotint^
such election, previous to or during the election atwliieh
he was a cantlitlate, or to pay for, procure or engage to
jiay for any sucli entertainment. With the exception,
which in the Acts* earlier tlian the Consolidated Statute
of Canada, cap. (5, was in the foim of a jjroviso, that
nothing in the section contained should extend to any
entertainment furnished to any such meeting of elec-
tors l)y or at the expense of any person or persons at
lii>, her, or their usual place of residence, this section
was always, at least as late as 1JS78, grouped with three
sections on the sulijtots of carrying arms, party Hags, and
piirty badges, and an otience against any of the fc»ur sec-
tions was made a misdemeanor punishable by tir.e or im-
jirisonment, or both.

They occupied the same position after Confederation as
liefore, being sections 01, 02, C.'^ ar.d 04, of 32 Vic.ch.2l (0.),
section G."), however, naming only the pecuniaiy {penalty,
in this Act they were in the division lieaded, "Keeping the
peace and good order at elections."

After the pas.'^ing of the Controverted Elections Act of
In71, JU Vic. ch. 3, (0.), in which "corrupt practice" was
•letined to mean " bribery and undue intiuence and illegal
anil prohibited acts in reference to elections, or any of
.'^llch otiences, as defined by Act of Legislature," the present
Chief Justice of Ontario, in the Glentjarry Cane, H. E. C.
.S, discussed at considerable length the question whether a
violation of the section v.*as a corrupt practice, having
regaid to the words, " with intent to promote his election;"
and he referred to .several decisions of Ent^lish Judox's
under their Corrupt Practices Prevention Act, 18.")4, sees. 4
and 2!i, which sections had not then been adopted into our
law, but which are now represented by sections 152 and
b"n{ of the Election Act.

* (i Vic, di. 1, sec. 33 ; 12 Vic, eb. '27. see. 57.

282

PROVINCIAL KLKniUN,

The questions thus raised in 1871 were set at rest ii> 187;>
by the Act 30 Vie. eh. 2, (().), which extended the (K-fiiii-
tion of " cori'upt practices " to inchide violations of section
Gl of the Election Law of 1808, and amended that section
by striking out of it the words, " with intent to promote
the election of any such candidate," makin<3f it read a8 wf
now have it in section 151.

In the revision of the statutes tlie section was removed
fron*. the "peace and good order" group and placed in the
group headed, "Prevention and punishment of corrupt,
practices and other illegal acts at elections."

Whether or not these changes have altered the effect of
the section, so far as it touches the motive leading to the
act which it prohibits, the description of the act itself re-
mains unchanged, with the slight exception of the intro-
<luction in 187.'} of the words "drink or other" before the
word "entertainment." It is "providing or furnishing
drink or other entertainment to a meeting of electors as-
sembled for the purpose of promoting such election." TIk-
" meeting" intended by the Act of 187.*} and by the Revised
Statutes, is the same "meeting" intended l»y the Act of
1842 and all the intermediate Acts, whero the avowed pur-
pose of the clause was the preservation of peace and good
order.

Attenipts have sometimes been made, in argument, to in-
terpret the phrase, " meeting of electors assembled for the
purpose of promoting the election " by the aid of specula-
tions as to the probable object of the |)rohibition, which has
not unfre(juently been supposed to strike at one form of
corrupt enticements of voters. Whatever force such a con-
jecture may liave derived from the words, " with intent,"
&;c., while they remained in the statute, although nothing
was said oi' corrupt intent, these words are there no huiger,
and since their removal, viz., in 1870, the present sections
152 and 15.3, one dealing with corrupt treating, and the
other with treating any voter on nomination or polling »lay
on account of his having voted or being al)out to vote, have
added to the previous list of corrupt practices ; and giving
meat or drink byway of bribery was always bribery.

EAST MIDDLESEX.

'2h:\

We are, therefore, at liberty to render the words we Ijave
to construe in the sense wliieh properly beh>n;^ed to tlieiii
in 1 81-2, without fear oi detracting from the safoijuards
provided against bribery ami e(. ruption.

The opinion which 1 have fornu'd is, that the " purpose
of promoting the election" is not, primaril}- at all events,
iiitt-nded as the purpose in the niimls of those who meet,
Imt is the purpose in the minds of those who call them
together. I nnderstand tlie word "assembled" in the trans-
itive and not the intransitive nieaidng of the verb, in the
^cnse of convoked or called together. A candidate was
f()rl)i<lden to endanger the ]>eace or encourage disorder by
,siip])lying entertainment, now emphasi/cnl as "drink," to a
iiiectintr of electors whom he ha«l caused to assemble in
order that he might promote his election by addressing
them or otherwise influencing their votes. In any other
reailing of the enactment the word "electors" loses its
force. Why a meeting of electors.' I take the meaning
to be that they are asseml)led as electors, and because they
are electors. A committee may hapjien to l»e composed of
electors of the riding, or may not, but their functions as
committeemen do not depend on the accident of their
luiving or not having votes in the riding.

My view that the meeting is a meeting of a general
character, called together to be acted on, not to act ns a
luoeting, and that the object of the prohibition wjis and
is the preservation of peace and good order, is not
weakened by supposing the prohibition to have had
some reference also to checking the use of corrupt infhi-
eiico. That consideration does not nHect the question of
the nature of the meeting otherwise than by calling atttMi-
tion to the improbability that the Legi-ilaturc was proviil-
ing against a candidate influencing, by a corrupt device of
the kind, persons who were already his snppoi-ters, and
who ex liiji')fhi>ft! had come together with the purpose of
j)romoting his election already formed.

It is needless to sa}' that the possibility of abuse by call-
ing by the name of a committee what is in reality a gen-

IffT

:?st

PROVINflAL KT-EniON.

(M .il TiioctiriL? of tlip olcctoi's forms no aru'uniont in tlio con-
struction of" ii written law, ulthougli it may b«' a reason foi-

vijrilancc in its administration.

I am aware that theie may seem to be some (liHi('ult\- in
jissigninjLi a reason for everytliinjnr in the section. It iiiav
iM>t at first sight he a))|)arent to what precise state of facts

the proviso was intended to apply. It may he capal)le of
sn<^<j;estinif, and, if I am not mistaken, it has su<;gest(Ml in
this case, tlnit no meetings except connnittee meetiiii^s arc
eoveicd ])y tlie prohibition, Ijecanse it nniy seem unhkely
that the J^egislatiire su|)posed tliat any person or persons
won hi invite electors, in any other character than as a
connnittee, to assemble at his, her or their usual place of
residence. Tliis view may jirove too much if it coiilines
the operation of the law to mere committee meetings; l)ut
it is founde(i only on conjecture, not on anything found in
the expressed intention of the Legislatuie.

]\ly inteipretation of tlie clause does not seem to me to
involve any incongruous or absurd results. On the other
hand, if the ])urpose in the mimls of those who meet is
the ciiteiion, how shall we define a meeting? Jf t\V(»
members of a ])arty meet by appointment at their club to
talk over their plans for the election, does one of them
commit a corru])t act by asking the other to join him at
lunch or to take a glass of wine i

I believe the question as to the class of meetings inteml-
ed is yet unsettled by aettial decision. We have been rt'-
ft>rred to the XortJi (irei) CWkc, H. E. C, H()2, in whieli
Mr Justice Fergu.son is said to havi; held that a committee
meeting was within the statute. No question seenis to
liave been argued in that case as to the character of the
meeting. We have no report of the facts, beyond a short
allusion to them in the judgment. There must have been
something which does not appear in the report, in addition
to the mere construction of the section, to influence tlie deci-
sion. The meetings were atone Wright's tavern. The charge
was that Wright was guilty of corrupt practices by treat-
ing at those meetings, and that charge being sustained by

EAST MIDDLESEX.

'2^0

till' learned Ju(l(,'(' without anytlnng being said in liis jiuli^-
iiK'iit to explain why Wright was not prott'cti'il Uy tiie
jiroviso, one naturally feels that something uuist have
appeared whieh we do not find stated.

Then the learned Judge giv(is his reason.s for
considering that the members of the Lilti'ral Con-
servative Association who composed the meetings
were not agents of the candidate. " What was
done at those meetings," he said, " oi- ("or what j)urpose
they were assembled did not veiy clearly ap|)ear. It may
be admitted that the members of the assoeiation who
assembled at Wright's were electors asseml)Ied to promote
the election of the respondent within the Olst section of
the Act of 18(iS, as amended by the Act of [HJ.], so as to
make Wriglit himself guilty of corrupt practices in supply-
iu"' ilrink to them at or innnediately after their meetings-
but they were not, tliat I can say, in any sense the agents
(if the respondent, or in any way autliorized by him, nor
(iocs it appear from the evidence that he had any know-
ledge of their meeting." This discussion of the agency of
tin.' parties treated is another thing which indicates that
the learned Judge was really dealing with something out-
side of section Gl, th(»ugh he may not have enabled us to
see elearh'^ what he may have ha'l in his mind. If Wright
had been an agent, a coi'rupt act by him might have att'ected
the candidate, but it made no ditlerence, so far as .sectii)n
(il was concerned, whetluu' the people treateil were agents
or not. It is scarcely open to us to seek tor an explana-
tion in the supposition that some of these other people ntay
have tieated as well as Wright, because, if that were so^
they would have been reported along with Wright for the
eoiTupt practice. Whatever may be tlui explanation of the
juilgment, it is certain that the learned .Judge was not
eousiderinix whe'oher or not a committee meeting was with-
ill this section. His point is that, assuming it to be within
tlie section, nothing was done which atfocted tie; respon-
dent.

■""V^iiWWBi

I .

2SG

PROVINCrAL ELECTION.

TTiis decision cannot therefore be taken .'is an authorit)'
in the ])re.sent case.

Ahnost all tlie cases that have arisen for the np|»licati()u
of the section have been with reference to^'eneral meetings,
the most inipoi'tant bein<^ probably the M it></>(>hii C'aur («),
recently decided in this (.'ourt, and I do not know that it
has hitherto been donbted that these meetings are within
the section.

In applying,' the law to them the word "assembliMl " Ims
been understood as having' the force which 1 atti'ibutp to
it, and which, in my judi^ment, satislies the grammatical
meaning as well as the intention of the section.

I think we shonld decide the qnestions on which the
learned Judges ditfered by holding that the res[)oiident
was duly returned and elected, and that it should 1)0 so
certified to the Speaker, and that the costs of this I'efereiice
to this (Joui't be disposed of as part of the costs of the -aso,
in pursuancH of sections 97, D8 of the Controverted liiec-
tions Act, having regard to section I GO of the Election Act.

OsLER, J. A. — With regard to the charge of corrupt
practices, under section l')i, of furnishing enteitainment to
or treating a meeting, 1 must confess that my impression
has been that when the cpiestion came to be examineii, it
nught be found that meetings of committees were not
within the section, but having now given it the best coii'
sideration in my power in ti<o light of tin arguments ad-
dressed to us, and the judgment of the learned trial judges,
1 am unable to adojjt that view.

I think we do not derive much light from the lejiisla-
tion prioi' to the Act of 18GJS. Under section Gl of that A .
which made the intent with which the c •ertainmeiiL ' l-
fiunished the material ingretlient in the ofience, it vvaK 'uti
ditlicult to hold that it wr.s wanting in the case of a meet-
ing of committee-mt n all of one way of thinking, and pre-
snmabl}' beyond the reach of infiuence of that kind.

On this gionnd pn^ceeded the South. Grry Case, H. E. C.
r)7, and the lIV.s/ Toronto Case: ib. 97, lOG.

(a) auto p. 197.

EAST MIDDLESEX.

287

The decisions after the Act was amended do not present
any preponderance of authority either wa}'. We find op-
posite expressions of opinion l)y Draper.C. J.,and Gwynne, J.

The North Victoria Case, H. E. C. 2r)9, 200, is referred
to by the learned Ciiancellor, Imt the only thing there
decided on this point seems to be, that the meeting to
which the entertainment had Ijeen furnished was not a
meeting of electors asseml)led, kc, but a casual gathering
of a few persons who had remained aftc^r a public meeting
had assembled.

Ill the Helton Case, H. E. C. 285, the learned Chief
Justice undoubtedly expressed an opinion that a meet-
ing of electors all of one way of thinking to support a
particular candidate, or of a committee to aid in his re-
turn, at which refreshments were furnished at the expense
of one or more of them, could not, except in some extreme
case, be decreed a breach of the provisions against treating.

On the other hand, ]\Ir. Justice Gwynne, in the
North Grey Case, H. E. C. 3^52, expressly referring to the
amended Act, says : " It may be admitted that the mem-
bers of the association who assembled at Wright's were
electors assembled to promote the election of the respoml-
ent, so as to make Wright himself guilty of a corrupt
practice in supplying drink to them at or immediately-
after their meetings."

The report of the West Hastivfjs (2) Case, H. E. C.
539, in which one of the corrupt practices proved was a
breach of the 151st section, <loes not shew the character of
the meeting. I think it is rather to be inferred that it was
not a committee meeting. Looking at the plain uneijuiv-
ocal language of the section — at the exception it contains
in favor of meetings at the usual place of residence of the
entertainer, and at the amendment introduced in 1873,
which made the intent no longer material — I am forced to
the conclusion that a meeting of committee men, beinir
electors specially called or assend)ling by previous regula-
tion or arrangement, is a meeting within the meaning of
the section. While I agree with the views which my lord
37 — VOL. L E.C.

IB!|,

288

PUOVINCIAL ELECTION.

i'lg'-'

''T^

L.. .1 i

the Chief Justice has expressed on this suhject, I cannot
help regretting that we are thus compelled place as it
were to another stone of stumhlingand rock of otlence in the
path of the candidate. Oftences against this section ought
to be merely ilhigal acts, punishable by fine ; not corrupt
practices in themselves avoiding the election.

It remains to be considered what other corrupt prac-
tices have been proved, and whether the election can Vie
maintained under sect. 159.

In the East Slmcoe Case (a) I endeavored to express luy
views of the meaning of thtit section, and of the manner in
which its remedial or saving powers should be applied. I
need not repeat them.

I pass over for the present the la'ibery of Moxley, as the
learned Judges agreed as to that, and their finding has
not been impugned.

There is, first, the alleged bribery of Littleton b}' Depo-
tie. Putting together the facts that Depotie received S')
from Jaivis on the night in (juestion, manifestly for cor-
rupt purposes : that between nine and ten o'clock the same
night he went to see Moxley and Littleton about their
votes, and tluit he is found to have l)ribed the former; the
peculiar manner in which tlu' money was placed in Little-
ton's possession, and the timely rei)ayment of the So to
Jarvis during the trial — I think, unless we are to suspend
our juilgment until we hear an admissi(jii of a formal
verbal agreement between briber and bribed, the proper
inference and conclusion sliould lie that the payment or
gift or loan by Depotie to Littleton was given and received
as a I'ribo.

The charge of bribery of Moore by Emigh is also, in my
opinion, amply proved; but I do not thiidv Emigh is shewn
to have been an agent of the res))ondent.

The payment of S-i to Hurley the bill-poster, though
not free from suspicion, may, I think, looking at Mr, Mac-
donald's evidence, be regarded as not a corrupt one

We have, therefore, one isolated case of bribery and two
of personation by persons not agents of the respondents,

(a) post 291.

EAST MIDDLESEX.

289

s also, in my
hAi is shown

in addition to the treating,' of a committee meeting by one
agent, and three cases of bribery by other agents, by the
furnishing of money for the purpose of bribery by Jarvis
to Dcpotie; and the bribery of Moxley and Littleton by the
latter.

The corrupt practices avoid the election, unless the re-
spondent can succeed in shewing that they ^-ere so trifling
in their nature and extent that the result could not have
been alfected, or be reasonably supposed to have been
affected thereby.

I put aside altogether the treating of the committee.as in
the cucumstances whollj- innocuous; Itut I think the
bribery cannot be so easily disposed of. We have it in
evidence that Mr. Jarvis, an agent of the respondent, not
perhaps a chief agent, but a prominent supporter who had
been in the previous year the secretary of the })arty associa-
tion, was engaged, to the knowledge of the respondent and
tiiiancial agent, in getting up a subscription list to meet
the expense of the election, other than the respondent's
j)ersonal expenses: that only |)art of it had been received by
the financial agent, the only person by law permitted to
make any payment for the purposes of the election : that
tlu' subscription list in question was neither produced nor
accounted for; and that Mr. Jarvis, though aDivision Court
official living within a mile or two of the Court House, and
though informed l>y the financial agent of the respondent
that he was charged with bribery, kept out of the way and
was not present at the trial. Taking these fsicts in con-
nection with the other facts proved; of Jarvis dealing with
Depotie, and thelatter'sconsecjuent bribery of Moxley and
Littleton, the inference is strong that an agent of the candi-
date, other than the financial agent was in possession of a
fund subscribed for the purposes of the election which he
liad not accounted for, and that two persons wei'e bribed out
of moneys fui'nished by the collector of that fund.

Corrupt practices having been thus proved, the onus
was cast upon the respondent of producing Jarvis, or, in
some other way of accounting for the disposition of the

290

F'ROVINCIAL ELECTION.

election fund. In the absence of all explanation as to this,
it seems to me that the bribery was connnitted under cir-
cumstances, and emanated from a source, which preclude it
from being judicially (U^emed to be of so trifling a nature
that the result cannot have been affected, or be reasonably
supposed toliave been affected thereby.

For these reasons 1 think that the election is not only
avoided, but that it is not saved unch'r the 159th seotion.

The Registrar of the Court should therefore be directed
to report to the Speaker of the House that the election is
void, and that the respondent has not beon duly elected or
returned.

EAST SIMCOE.

t91

EAST SIMCOE.

P RO V I NCI A A KL KrTfoX.

Bkfore Boyd, C, and Camztion, J.

Orillia, Octoba- 30, /.«?,?.

Before the Court of Appeal.

Pifsvut :— (5niEF JusTifE HA(iARTv, Mk. J lstice Burton, ^fR. JusTicr,
PATrER!<oN, and Mk. JdHrrcT. Uslek.

Toronto, October of, IS84.

Novcmba' 11, I8S4.

Isaac Reid, PdlJioner, v. Charles Drury and Samuel
LouNT, Respondents.

Hkdioii--< — Ddaif in ij/tcninr/ /joll—lnmffiriency 0/ ballot papers — Delay —
Oiiiin^ion. to tiikc ith nf scrro'y — Ri^ailt not ajfuctMl — Rtliff under
sec. 107 — IIold'uKj ))oiiuiintion after time fixed th^njor — Iin/jerati'-e or
Direclorij — Extop/jel — Corrnjjt aets—Bribtry—Htltinff liquor — Relief
umtfr nee. toO— Construction of^A<jenci/-~ Evidence of— Intimidation —
Disin iesii I — A i ipea I .

(1) At a polling sub-division, through a aeries of mivsuhances, and without
any wilful default of the officials, the poll was not opened till be-
tween half-past one and two, whereby it was charged a number of
electors wered«prived of voting. Thepetitiouerfailed toprove the charge,
while, if the onus of doing so wereon the respondent, he showed there wai
am pie time topoU all the voteaatthatsubdivision, and that all who desired
to vote could have done so ; v2) I'h ; supply of ballot paper^^ at a polling
pub-division, through a blunder of the olHcials, ran out, and, while wait-
ing for instructions the poll was closed tor half an hour, whereby, it was
charged, some seventeen voters were prevented from voting ; but as a
matter of fact none of these voters were prejudiced therel)y , (3) 'I he
t'cputy- Returning Officer and subordinate otfictrs at a polling sub
division, through improvidence, but nut ma/ajidc, did not make the
declaration of secrecy, reipiirrd by sec. 147 of K. S. 0. ch. 10; but the
result was nit aliVcted thereby.

He/il, by the trial .iudges, Bovd, C, and Camehon, ,1., thit as thesi
grounds of irregul'aiity did not per m adect the result, they came within
the protection of sec. 1 97, and did not avoid the election

.'}7a — VOL r K.C.

292

PROVINCIAL ELECTION.

Uniler neo. 33 thr Rctiiniiii^ Oiriccr is tn (ix tli>' place ami tiinr of nnmi
iiitioi), Hiifli tunc til III- lictu'i'cii t'ii'Vi'ii a. III., aiiij t\vi> |i. tn., nt tin
(lay lixt!il tluitftir. 'liic Idtiutiinu "llift r, wim livcil at H., owiiii; to
iiii'v ital)lu acc'itlcnt ariniti^ fimn tlic tiaiii liiiiiu; lilockiil uitli snow, cim
not reach ()., tliu |ilai'u of nnininatinii, till '.' |i. in., ami tlii- hll^'tillL,'-
until ten iniiintus aitcrwai'iU. 'I'iif two ciiiilniati'H who lonti'Hti'd tli>
constitiicni'y wiTi' thru iKnninati'il in thi' iirrsruci; of a lirgc iiiiinliur ni
ek't'toi's, ineliiilinL; tlic [iititiiiiier, who iiia>li' no ju'oti'Mt. It diil imt
H|ipeai' that any injiiiy IihI lii'ini caiiNuil thi'iiliy.

/'(■/• ll(i\ I), ( '. Til" i(M|iiii'('nii-nt wan nicicly ilirtctofy "i' r '^'illative : tliit
null coinpliaiK'c therewith tniLiht or not he fatal, at)<l ho avoiii the clcc
tion, aci'onliiig to circiimstancuH ; ami that a.s no one v.as picjiulueil, it
coulil have no fatal ellfct. Ill any evftit tlii' ))tlitiotur, iiiidi'r tlic en
cuniht incii.H, was e.stoppcil troni raising the ohjeetioii ; and Semhlr, he wa^
also preeluded from rai.sitig the oiijectioii liy na.son of, as it appeaiiil,
bis el.diuinji; tiie Hcal for the ilefeatcd caiulidate, thus ratitying and
adopting what Wiis done at the eleetioii.

/Vr L A.MKKoN, .1. Tile reqiiiroinent was imperative, and non-conipliauoc
therewith avoidid tlie elec;tioii ; and the petitioner wa.s not estoppeil
from raising tlie ohjectioti.

On appeal to tlio Court of Appeal, the judgment proccedeil on another
ground.

f'cr BiRiDN, J. A. — The point was now covered by sec. 48 of 47 Vic. eh
4,(0)

/'( )• I'attkrho.v, J. A. — Qutrri', whether sec. 48 was intended to ajiply
to this point, this being a matter speeiiilly de.dt with liy sei\ If) ot 11
S. O. eh. 10.

H. was a ))roiiiiiicnt supporter and agent of the respondent, scoietary ni
the rotonn association ot the riding, delegate to the conventiiui whitli
noinin.ated respondent, and an aetive organizer and manager ot the cK-c
tioii content. K. , a voter, well known io H., as what he called a 'Mcxisr
fish," ami belonging to a family re|)Uted to sell their votes, ciine to 11.,
and asked for moiiiy for his vote ; not suei'cediiig, he returned utxl
clay and made a simil.ir recpiest. Kin.dly he asked for Si), because. Iip
said, he was sick and hard up, and wanted to p.iy his taxes. \\ here-
ii|j<)n 11. gave liiin .'ii>,*>, but on K. pledging his word th.it it hid iiotliiii^
to do with his vote. H. told '1'., anollier voter, that li he wanted .<! oi
i|5 now was his time, and introduced him to 11. '1". asked if miy innmy
was going, and otf'ercd his own vote for .§10, and his father and tlireo
brothers ior .'iJ'JO. 11. gave him .§4, calling it a loan, andon T.'s word
of honour that it would not iutluenco him in the election. H. alio
bired the team of a man named (.'. for the election day. The election
was very close, over '2,700 votes being polled, and respondent's majority
about twenty-three.

Held, that these were clearly corrupt acts ; but per Bovd, C. , they diii
not avoid the election as they came within the protection of sec. I."i9 ;
and /*''>• Cam I HON, J., that they ditl avoid the election, as they wert
not within the said protection.

Per HuYU, C. — The scope of the section was that an election should not
be set aside for two or three illegal acts of a trifling nature or extent,
where the majority is eonsiileraUly more than the votes atlected, unless
these illegal acts and practices prevailed, and were ao intbientiil
extensive and insit'ious, as to imluce the probable and reasonable belict
that but for such acts and practices the result might have Ijeen dilier
ent, while here, alter striking otl' the corrupt votes, the respondent
would still have a majority.

Per Ca.mkron, J. — The extent of the influence of the corrupt .acts is not
to be measured or estiinateil merely by the number of corrupt votes,
but in couuection with the iidiuencc of the party pro\ed to be guilty of
its commission, and by the opporluuities he may have had of resorting
to like practices in other cases.

EAST SIMrOE.

2nn

ided on anotlipi
IS of 47 Vic. ch.

(Ill appeal tothcCnnrtof Appeal -flffif, atriniiiiii,' llir liiuliii^ ol tAMr.RON,

.1., |l5iun>N, .J.A.. ilisHi'iitiiit;.] that tluM'cirriipt ai'tsilul not coino witliin
tli. priitoi'tioiiof Mi'f. I'i!l; ami tli'ivtnri' tln' flfoticni wan aviud.'il.

Aii.ptlicT cliargi! wan tliat K. , a lii'niiscil lioti'l kccp.r, almiit four o'oloo..
nil till' pulling' (lay HiM'Vi'il II, liinl a viiti'i' with iliiiikM in hii liirronni.
I', was a iiii'iiihiT of tlic ri'fonii asuoiMatioii, ami ^;i'iu'rally took put iii
I'li'.'tiiiii. . ilir attiMiili-il tilt- nii-t'tin^ calU'il for thf nuiiiin itimiof tho

ri.i|ioii(l>'nt, but liP tociU no actirc iiart in it. On the ( Kcti lay lie

ijicivc t'lector.s til till' poll, iiut It tliil nut appear on whuli siile he was
vdtini;. 'I'lic prcniilint <if thi: rt'lurni a-c^ofi.ituin saiil heiliil nut think
that K. workeil fur the rt Hpoiiih'iit, anil nnilerstoml hr was a fricinl uf
till' ihfeateil candiilatc ; and II. .said he tlioiiijlit lie was working fortlie
n spiindi'iit.

/'. y liovii, C • rill' evidence failed to shew that K. was an agent <if the
nspondent. — /'tc Camekon. I., that it was aiitlicient to establish hueli
agency.

(Ill ajipeal, O.xI.RK, J. A., concurred witii bovn, ('. 'I'lie other .Judge.sdid
lint consider the point.

('. (iiM;iipi('d as a lioardiiighonsc, ' houso of a lumber comjiany rent free,
and was paid for lioinling the ni'ii by the men themsclvfs, but through
tilt eoiiip.iiy retaining tiic aiuonnt tliercof out ot tlu'ir wages, t'.
artcd .'IS sei'iitineer fo;' the ib^fealcd candidate, .iiid while .so acting, but
altrr he had votti', was sent tn' by I'., tin; i:oiiipaiiy's manager, an agent
lit the respondents, jmd L'iven to understand tli.it his so acting was not
satisfactory to tiie coin[i."iiy and .against tlieir interests. No threat of
.tiiy kind was mule. C retiiineil to the iiolling place and contiiiiicd to
act, but on rellcctioii, aooiit I'i o'clock, lit; cwised to do so. ( ". iiad
canvassed tht; men at tlie Itoardingliouse lor Ihi: defeated candidate, lor
whom soiiii,' liatl promisfvl to vole, and a gooil many of the men had
voted before he lelt. It did not appear that what !'. had said to C.
was communicated to any voter, or that any voter was intluenced
t hereby.

//'/(/, th.it a charge of intimidation was not proved.

Alter the election (.'. received notice o\ dismissal fnun the company, and
w.is informed by I', that it was tor talking too much in the election
aliout one of tlie hands having liecu sent away to prevent liis voting.
It was charged that V.. was dismissed on account of iiis hiving voted at
the elcctii n. — //lA/, that that the charge was not jiroved.

/•"(')• 0>LEii, J. A. — Oil a pi'oceeiling of tins kind the whole case is before
the Court of Appeal on the evidence, mid ou;lit to be disposed of in
all respects itS uu au appeal from the trial Judges.

This was a petition filed by Isaac Rcid, au elector of
the electoial division, against I'harles Drury, the .snccess-
ful candidate, and Samuel Lount, the retmninn; ofHcer.

The petition contained charges of certain irregularities
coiriniitted in the conduct of the election, and of corrupt
practices ; and prayetl to have the election avoided.

McCarthy, (^. C, and A. R. Creel man for the petitioner.
'S*. //. Bloke and William JohiiHton for the resjjondent.

The facts are stated in the judgments of the learned
•fudges who tried tlie case.

294

PROVINCIAL ELECTION.

Boyd, C. — 1 propose to deal first with those illegalities
which atfect the form, bei'orc discussing those atfecting the
substance of this election.

1. At pullin^f sub-divisiou 11, in Tiny, the poll (throu-^h
a series of niischaiiccs, without any wilful default on thr
part of the olticials), was not opened until between half-
past one ami two in the afternoon of the polling- day. The
petition alleges that this poll was closed before five o'clock,
but that is disproved. The burden of the complaint is,
that in consequence of this irregularity many electors en-
titled to vote at that poll, Miid who attended to vote, were
deprived of the opportunity of doing so.

The charge as alleged is not proved. But if the onus is
on the respondent 1 think he has sutticiently shewn that
there was ample time from two to five to poll all the votes
at that sub-division, and that all who desired to vote could
have done so ; and did in fact vote thereat with three (per-
haps fourj exceptions ; ohose being the three voters whu
arrived live or ten minutes late after the close of the poll ;
and one Perry, whose evidence was not given in a very
lucid manner.

As to the others, not admitted to be accounted for, the
reasonable inference from ail the evidence is, that they did
not attend and did not mean to attend during that day to
vote. I refer to Wm. (Jhappell, P. Berrault, Geo. and W'.
C. Matchett, and Frederick and Henry Morran. 8ec
Monck Case, 32 U. C. R. 148.

2. At [)olling sub-division No. 1 of Tiny, through a
blunder of the odicials the supply of ballot [lapers ran out,
and in consequence, and while waiting for in->tructions, the
poll was closed for about half an hour. It is alleged that
th j-eby seventeen electors were prevented from voting. 1
think this disproved.

The result of all the evidence leads me to believe that
hone of ti»ese seventeen were prejudiced by what hap-
pened. Becket either voted or was not there during the
day. Coates was not present that day, nor was Dingman
nor Prei'tiee.

EAST SIMCOK.

2!).')

se illenralitiej

Soc'ticn 107 of R. S. O. ch. 10 Ca) is m'u\v enoutrfi to cover
loth cn^VH of" iir( rrnlaiity ; ami it is provtd tliattlie ei(>c-
tidii Mas coiuUictcd in actoidaiiee witli tin- }'iiiici|ik.s
laid down in tlie Act as defined liy the authorities; that
is to ^ay, tlie votirg was seciet and by hallot, and all tlie
olcctoi.s had a free and fair oiipoitunity of casting tlieir
votes: Hackney Cai<e, 2 O M. .V H. 77, 83.

As to tlies-e the only doultlid matter is,A\hether tlie pi'o-
visions as to secrecy were violated becausi- the Deputy
Itttuining Officer and tlie suhordinate officeisat stdj-di vision
11. of Tiny, failed (i..jiprovidently hut not mala fide) to make
the declaiation of secrecy uiidei- R. S. O. ch. 10, .sec. 147.
lout that piovi.sion only imposes an additional sanction upon
ilie statutoiy injunction (see. 140) that absolute secrecy
shall be maintained by these ofhcers. A penalty follows
upon any violation of this duty whether the (lath betaken
or not.

Altooether a] art fioni thediclaration it is to leassunitd,

in ihe absence of evidence, that the (llicers have been duly

reticent and observant of tlie suVstanee of what is enjoined

iipi n tl:< ni, th( U4:h tluy be in default in not taking the

formal pledge of secrecy.

This emission will not ivivalidate the electicn, unless at
the leasi it be made to appear afliiniati\ cly that the spirit
of the Act in that regard has been vicjiated.

'J he principle of the decision of Mr. Justice ilarry in the
Drvijlicild Case, 2 O'M. l^' M. 201, but better reported in IN
Sol. J. 047, is entirely applicable. He theie held that the
use ( f two ro( nis not opening into each other foi- the pur-
pose of voting, involving the po.ssibility that in pa.ssing

('0 " No oluiti ji! shall lie (Iccl.ared inv.ilid by rcrtsou df a failiuv to buM
i J oil at any jliKt.' aiiiidinttfl fur holding a jioll, or hy icuson of a nuti-
C( injiliance with the rules contained in this Act as to taking of the poll
(•r the counting of the votcH, or liv re;iboii of any iniNt.iko in the u-'e oi
the tonus contaii.ed in the .■icliKluIit* to this Att. it it appear.s to tJie
tnliunal having cognizance of the (|ucfJtion that the election was con
''acted in .•xcconlaiu e with tl jiriiicij les laid down in this Act, and
such failure, nou-coiiipliance, or uiistaku did uot afleut the result of the
eloctiou."

;?8 — VOL I EX\

2.96

PROVINCIAL KLECTIOX.

from one room to anotluT a votor mi^'ht shew his ballot
paper, will not, in the absence of proi>f that any votinjr
papers were actually shewn, iiivaliilite the election. See
also thtiOoIehMfer Case, 1 Peck. 507, and the Lim'U'icIc
Case, P. & K. 368.

There is no reason therefore for not f^ivini,' full effect to
the curative provisions of section 197, as not more than on >
vote (if even that) appears to be atfected by these irregu-
larities.

.3. There remains to be considereil a matter of greater
ffravity, for which legi.slative provision .should be made
whether or not the objection now prevails.

It is objected that the whole of the election proceedlnL^s
are nui^atory and null I)ecause not initiated before the h-mr
of two o'clock on the day fixed for the nomination of candi-
dates. Owing to an inevitableaeciflent arising frointhe train
being bl(K;ke<l with snow, the Returning Orticer, who lived at
Barrie, did not reach Orillia, the place of noniination, till
two o'clock of the day so fi.xed, an<l did not consequently
get to the hustings till ten minutes after two. At that
time he proceeded with his duties under sec. 48 of R. S.
eh. 10, in the presence of a considerable assembly of
electors. The two candiilates who contested the con-
stituency were then nominated, and that in the presence of
the i)etitioner who now urges this diHieulty. He m;ide no
protest then, and he should not, in my opinion, be allowed
to raise this objection now, as it does not appear that the
slightest injury has been done to the riding or to any one
in it by the failure to begin proceeilings at the proper hour.

The writ of election which founds the jurisdiction of the
Returning OiKcer, fi.xes the nomination liay, l>ut not the
hour.

Under the statute (sec. 33), the R ^turning Of!i(;er is to Hx
the place and hour; it being provided th tt the hour shal 1 be
betwi^en 11 a.m. and 2 p.m. of the day nameil for opening the
election. This was complied with by the officer fixing one
o'clock as the hour. At that hour on the proper day the
officer was proceeding (under sec. 4S) to the hustings when

KAST SIMCOK.

21*'

he was delayed by the cause mentioned. Bin, I infer tliat
the asseinliled electors were aware of the reason of the
delay, and waitt;d till the officer arrived. Thereafter the
proceed inj^'s went on as if they had heen l)egun at the hour
and with the same result, namely, that a poll was demanded,
and the further lu'osecution of the election stood over till
the day fixed foi" polling.

An election begins on the day of nomination, and in thr
evi'nt of a contest, continues till the declaration of the poll
is made by the Returning Officer. The day of nomination
is also called in the Act " the d;iy of the opeiung" (sees, li*-*
and 4<S); and, if only one candidate is nominate(l, it is also
tlie day of closing the election (sec. 51). Ihit if a poll is
dt^manded, the nomination day becomes merely a prelinn-
naiy to ascertain the candidates wIkj are about to .seek
the .suffrages of the electors on polling day : Anthony v.
S<'ger, 1 Hag. Con. 11. 13.

The san)e particidarity is observed in tlie Act in provid-
ing the hours a]ipointed for voting on polling day (sj'C. M)
us in fixing the hours for holding the election on noudna-
tion day (sec. 33).

But it is well settled that any dela}' in opening the poll
will not annul the election, unless it appears that some
mischief ensued, or that the result was affected.

iSindlarly, there is no good reason wh\' an (^nu.ssion to
open the proceedings at the appointetl hour on nomination
day should be fatal, if no .solitary elector is harmed. This
view appears to me to have prevailing force where the
election was not closed on nomination day and where the
party complaiiung attended at the iiustings and had ample
(Opportunity, if he wished, to nonunate his candidate or to
propo.se himself to the electors then present. The wliole
proceeding took place upon the day during which the otficei'
had jurisdiction h\ the teinis of the writ, and that is the
essential thing to be regarded (sees. 20, 2S, ')2, 54, 5.')
and 140).

The time within which he is to act en that day is a
matter directory, any deviation from which is not neces-
sjiril}' disastrous to the further prosecution of the election-

•J!'.^

I'HOVINCIAL KLKCTION.

Tlif vii'W of fjonl Flirdwiokc, in an analofjous case is
very pertinent hero ; anil it i.s thus ('Xprcsscd : " This uam-
tii»n of hours in tlio statute is certainly directory, ami not
restrictive, and inteiuh'd to prevent surprise hy hiitjinniiiir
at inconvenient times'" : fii'.c v. l\n)h', fji'f (\i. t. ILoril.p. 27.
He refers to the case of Laiincestnn in 1 Roll. Abr. 518 5l4t
' That coi'poration chose their officers eiijjht days after tlic
cliai'ter dav, ami adjudjjed ufood, foi' that the "lay was oulv
directory."

Mere, as I conceive, the pith of the matter is, that tln.^
election should \)0<^\n on the day fixed in and by tl\e writ;
but that it shouM punctually be^-in between the hours Hxed
by the statute is directory and re^nilative, so that any
failure to observe such limit may oi- may not be fatal,
accordinij; to circumstances.

In the Loih/fonI C'ist', 2 O'.M. vV H. D. S, Fitz'^t'i-ald, ,1 ,
intimated an oj)inion that the action of the shi'rilf in fixiuLf
a day for the election other than that directed In^ the law
would not, /)?'(• .se, vitiate the election; and see Ciiiinin<j-
Iniiii on Elections. 2nd ed., p. 93.

Mr. .Met 'iirthy atgued that tlie heal in;,' clauses sec. 1!)7
11. S. O. ch. 10, and sec. S of 42 Vic. ch. 4 (O.) implied tliat.
irrej^ularities not provided for tliiM'ein were to be treated
as fatal, applyin^^ the inixim I'xpr'xsio miiitx, &e. But I
rather t'.iink that both provisions are of a declaratory
nature, and thus tiuacted for tlu> sake of caution.

The Srafui'd Case, .'J Lud. 2.'), on which he relied, is (|uite
at variance with Canadian Parliamentary decisions.

Tims in the (.'ormval/ Cai^e, Pat. Kl. [^rec. 10'}, it was ob-
jected by electors as petitioners that only S(.'ven days'
notice of the election was given instead of eij^fht. The
resolution of tin; committee was that ei^•ht clear day-'
notice was re piired by the statute: that the conduct of
the returninj;- oliicer was not in accordance with the Act;
that there was no reason to btdieve that the result of the
<;lection wa< alfected by the ii-rei^idarity ; and that the sit-
finy member was <lidy electeil.

KAST SIMCOK.

son

Au'ai'i in t^if Sfori/iouf Cdsc, Pat. El. Pri'C, 107, tlio same
coucliision was iitiirnicil with this additional tosohition, tliat
till! words "'at least ciiifht days' ai'o iiiipei-ative with re-
•.-Mid to the llctiiriiiii^' OlfictT, l>nt cannot have the effect
of renderinjT the oltK'tion void, when the insulfiitiency of
iidtice has not deprived any elector of his riifht to vote."

So ill the Xnrfolk ('use, Pat. Kl. Pree., 7!), the elosinj,'
(if ii |toll before the hour appoirjted was not considered a
fatal ohjection.

These Canadian precedents are in accord with man}'
more modern determinations of Knjr'ish Pai'liamentary
Committees which ai'e collected in the Liinerick dtue, P. &
K. ;Ui.'), and ill the AthUnic Cim; B. & Ar. llo, 12(1.

The oliiect and intention of the statute was substantial Iv
complied with and satisfied by what was done in the pres-
ent case The electors were summoned to meet at tho
proper ])lace on the proper day for the purpose of exercis-
iii:^ jurisiliction in choosim^ parliamentary candidates.
TliLs thc'V did under the direction of the pioper piesiding
olticer, and not the sli^ditest suspicion of ijijury can be sug-
j;c^t(.'d to have arisen From the fiikire to open proceedinjfs
at the preei.se hour ajjpointed.

This beino- so, the passage in Muxwdl on Statutes, p
XM . which was citi.'d l)v Mr. Justice Fournier in Jeak-
ii)x V. lirecken, 7 S. C. R. 2f'7, at p. 271, is also apposite
lieri'. It is in these words : 'Where the prescriptions of
a statute relate to the performance (»f a j'ublic duty,
tliey seem to be gi'iierjilly understood to Ik' merely ii;-
structions for the guidance and government of those on

whom the duty is im -osi'd, or directory only

Th<

ni'i^dect of tlu'm may be j^unishable, indeeil, but it does not
atfect the validity of the act <lone in disi-cgaid of them :"

i>ee

also

/tllCO'

In C

ase, 2 A. R. 82-1', H:}() ; Cullow v.
Pixel/. 2 C. P. D. .')()(), oG7. If any injury to the peti-
tioner, or to a siti'^le other electoi- had been proved, I
do not say that my conclusion w oidd be as it is now_
(See Ri'gina v. li^rfor ot L'tmhi-.th, S A. & K. .SoG ; Rex
V. D<inh>/»'h'n'c, 4 East 14.2S, and Pearf^c v. Morrice , 2 A.
.V K 9(i).

pi I

'Vf

:iOo

PUOVINCIAL ELECTION.

Hi.
It !f

But without dwellini,' loii^for upon tlii.s part of the casr,
1 desire to direct attention to this state of the law that
such amendment may be made as will save future elections
from attacks wliich while uncjuestionahly technieal and
unmeritoiious, may nevertheless render it impossible to
uphold the return.

Taking this view 1 am not obliged to rely upon anothi'r
ground, which would be fatal, I think, to the success of
this contention. It is this. The petitioner claimed tin;
beat 1(T the opposing candidate in and by his petition. He
thus adojjted and ratitieil wluit was done at the election, so
fur as he was pei'sonally concerned ; and, having thus
elected, it would be against principle to allow Inm to
abandon that part of his petition in order to ijiialify him
to attack the whole election proceedings. See Aldv'nhji'
V. hurst, i C. P. D. 410.

Next in oriler to be dealt with are the corrupt practices
r.nd other illegal acts complaineil of in the petition and
particulars. Two acts of bribery are brought home to the
respondent's agent, VVm. M. Harvie — those numbered 4
and 5 in the particulars. His agency is not disputed, ami,
from the evidence of all the ])arties implicated, the inference
of guilt is iiresistible. Perhaps the plainest case is that of
the loan to John Thornton. He gave Ins evidence in a
more satisfactoiy way than did his a.ssociate, Dan Regan,
and in all material nuitters he is not contradicted — rather
is he corroborated by Mr. Ilarvie. The well established
facts of the transaction with Thornton are these : Ilarvie
knew him merely by sight. A few days before the polling
day he came to Harvie and asked if any money was going,
and then ofl'ered his own vote for SlO, anil undertook to
secure the support of his father and three brothers besides
for ii^20. The result was that Harvie gave liim .$+ at the
same interview, (calling it a loan), and taking Thornton's
word of honour that it woukl not intluence him in the
tlection. Harvie says : " I don't know why 1 lent it to
Thornton except that he asked for it." Thornton ,says
that it was Harvie who volunteered to lend him the ^4,

Iljj>jg

KAST SIMCOK.

no I

iisincr those words; "I'll h'nd yon $4- and r<^colloct T'm
hiiviii;,' IK) vote." No other conchisioii can be (h'awn fnnii
the oircmnstaiicos tlian tliat the pretence of a loan is of
tilt' flimsiest textnre tliroui,d) which the snhstanee of the
transaction is pliiinly manifest. The propensity to lend
iiioiiey to comparative strangers who are hawkinti^ about
tliiir votes for sale pending,' the election slionld be sedn-
|(i\isly I'cp; .ssed by all electoral atjents. Thornton took
Ills cue from £)an lie^^an, who was well known to Harvie
as iieint; jiersoiially what he describes as a " loose tish," and
as belonning to a faniily v,'h.o enjoyed a reputation for
soiling their votes. This nian, some days before the Thorn-
ton loan, came to Mr. Harvie and. asked money for his vote-
Nut succeeding he returned next day, and the same .sceno
WHS repeated. Finally he put the retpiest in this way, as
stated by Mr. Harvie. He said he " wanted So because he
was sick and liard up, and wanted to pay his taxes;"
wlieieupon Mr. Harvie said, if yon give me your word of
honour that it has notliing to do with your vote I'll give
it to yon. Dan Regan had no ditHculty in giving this
pledge, and took the 8-5. He forthwith sought out John
Thornton, and telling him if he wanted 84 or $5 for his
vote now was the time. He procee<led to introduce him to
Mr. Harvie with the result already detailed.

One other charge against Mv. Harvie, which was allowed
to be added in the amended particulars, that is, the hiring
ot' Timothy Connor's team for the polling-day, is also
cstabh.shed. Any hesitation which 1 miidit have felt in
acting upon the sole testimony of Connor, is i-emoved by
the admission of Mr. Harvie, and his inability to contradict
the direct affirmations of the other witness.

C-harge No. 14 is proved as alleged ; namely that on the
(lay of polling Patrick Finn, a licensed tavern-keeper, <iiu
(luring the hours of polling, give liquor to persons in his
tavein which was within the prohiltited limits. The only
distinct eviilence on this head is that of Mr. Harvie, who
says that about four o'clock on that day he and Hugh
Mellen were served l)y Finn with a drink in his bar-room

:ju2

PUOVINCIAL ELECTION.

i>iit it is not t^xprt'ssly uUc^ed, nor (idcs tlio ovi<leiice, so far
as given, wai lant the condu.sion thiit Finn v\h.s an Hyent
of the resjH'n<lent.

There is vague eviilence of liis lieing ai-tivt; to somo
extent on the jxilling (hiy in gettiiiif voter.s to the poll,
either hy hiinseil' (Iriviiit;- oi- h'ttiiig his cutter be usetl for
that pin]>ose. J>ut whtther he vohuiteeied or was hirt (1,
and to Aviiich pjnty the voters belonged, iirc points nut
made clear. Finn !i[)pears to have just hjoked in at tlh.'
first Reform eonimiltee n)eeting whieli vva^ called by ml-
vci"tiseiMent a(ldres>ed to the electors o-onerall}' of that
party, but took no part in the proceedings during the.
ni inute oi' two that lie was thei'e.

Mr. Harviesays: " 1 do not think Finn was working for
our .'^ide the day of polling or Itefoi-e;" and Mr. llolinsoii,
the president of tlie Loeal Reform Association, says, " 1 do
not flunk Finn worked ; he was a Irieiul of 'rhonij)s(in s
(the Conseivative candiihite) and promised him not to
work ; tluit is what 1 understood."

This is x\()t such evidence as would justify a finding that
Finn was an agent of the respondent.

Chaiges 22 and 2.*i are not establisliecl.

The sul)stanee of tin Ui is that an elector, Clarkson being
in the employment of tlie Geoigian Ray Lumber Company,
was intimidated by certain ofhcers of the company, who
were also agents of the res|)ondent, liy tlireatening him
with dismis>al from their service, in order to induce liiia
to vote for tlie le-pondent, ami that he was disnussed liom
tlie service in consequence of his liaving voted at the said
ehiction. The facts are tliat after he luid voted for tlie
Conservative canditlate, Mr. reckham, the superintendent
of the company, remonstrated with him tbi' tfdsing an inter-
est on that side, saying tliat any of tlie men voting that
way were voting again.st the policy of the company, and
that he was voting the bread and butter out of his month
(or out of " our mouths '). The man was alteiwards dis-
missed, not, in my opinion, because he had votetl, but be-
cause ho subse([Ueiitly made comments upon some uieuibers

lyU^

KAST SIMC'OK.

r,o:]

delicti, xo far
ais an Hj^^t'iit

ive to sonif!

to tllC jtdll,
lit.' Usi'il I'lii'

1- was liiifd,
!• points IK it
I'd in i\t the
idled liy nd-
ally (d" tli!\t
during tlie

tindin«' that

atriiing iiiiii

of tlu' company which Mr. I'ccdvhani h<>ard of anddfcnicd
sidficicnt to justii'y his dismissal. Opinions ni.iy ditlci as
to the conipjinys course; Imt uiy |iresent luisiiicss is to
ascertain whether this has hcen an invasion id'thr |.").")th
sec. oi" llie Act, and I tail to lintl i^rounds for any such
conclusion.

Takinj^' this view (»f the cn idence, it is not needful to
consider the additional ditHculty in tlu' way of thr jie-
titioner in estalijisldiin' Mr. reckhams ayeiicy, as to whieh
1 ;iiu hy no means satisfied.

i\s to charjic 'S'l, we intiniate(l durini; the ar'nuuent that
the evidence failed to satisfy us tluit it was well loundt'd;
an o{)ini()n 1 still retain.

In like manner the evidence iloes not sup])ort the truth
(if chai'i;*' 41 as to the hiriiiLj of teams on ])olliiin- day from
MeKinlay. lie was a supporter (;f the Reform j'aity,
working on the connnittee,and with (jthers vcduntei'icd the
use of his hoi'ses and sleiifhs, he and tl>e oilier niriidiirs
knowing that it was ilh'gal to hire them for that day.

Out of the 7S original charges and the several additional
supplementary charges, these that I have dealt with ai'e
the' only ones which Mr. McCaithy contended were proved.
It remains upon this jiart of the case to consider the ctK'ct
of the two acts of lirihery and the one act of hiring a
team in avoiding the defendant's return, having reijard to
the pro\isions of sec. 159 (a). Under sec. Ili.'>, the votes of
Harvie a".d Dan Regai\ and John Thornton would on a
sciiitiny l)e anindled for bribery, and that of Tatriek Finn
for " corruj^t ])ractices," under sec. 157 and sec. li. sub-sec.
1 1, of the Eleetion Act. Rut Hugh JNIellen's vote wcmld
not be atlected, as was decided in the Lincoln (.'a.'<c,

{« "To jiri'vcnt the expense and troiilile of ne^\- elcctimis uluii tin-
neeessary and u.s(le>.s in case of a corrupt act or acts lioini: coiiiiniitfd
by an iifjeut without the knowledge and consent of tlic candidate, ii tiie
corrupt act or acts v.as or were (jf such trilling nature, or \\as or were of
such tiillnig ixtmt, that the rei^ult cannot have lucn alleettd or l)e
reason;d)ly supposed to have been afl'ectcd l)y such act or acts, eitiier
alone or in cotinection with other illegal practices at tlie election, such
corrupt act or acts shall not avoid the elcctiou."
IVJ — VOL 1 E.C.

noi

PROViNC'iAi- i:r.K(rr(ON.

H. K. ( ■. 500. We know, liowcver, that .IdIiii Thornton
vottMl lor Mr. 'IMioinpson, as lie hiinsolf in th(i evidtMice
gave that int'orraation. That vvouhl leave tlu'i'o votes to
be .struck off" the majority of 20 ohtaineil l)y the n!s|»onil-
ent. Timothy (Connor's vc^te might not be atf'ected on a
scrutiny (see liiutrkcUh' (^asr, H, Iv (.'. p. 12!)), but tili^
need not be dwelt upon, as he tells u.s he voted Conser-
vative that day.

Assume finther that but for tlie bi-ilie Dan. Ilegan wouM
liave voted the other wav. and that while reducing the
majority to 10 would not substantially change the result,
then, what other illegal pi'actices are proved which de-
.•^i-rve consideration in this aspect ol" the case?

There was some drinking at Finn's alter the close of the
polls which cannot nuieh, if at all, be regarded; and a
tavern-keeper nanu'd Osser, at Jarratt's (.'orners, kept his
bar open and sold li(pi<ir in the usual way to all comers on
polling d;iy, to the extent of about ten dollai's.

No other acts of drinking at Finn's during polling honr<
were )»roved, anil the sale of li([Uor at Osser's was not con-
nected with the responilent ov his agents, and could not
have appreciabi}'' intluenced the voting in favor of either
candidate.

Mr. McCarth}' strenuously arguetl that the etroct of Mr,
Peckhaiu's interference with his eniployees' freedom of
franchise was of itself enouu'h to turn the scale against the
respondent ; but, in my judgnuMit, the evidence falls far
short of what is needful to shew that any efforts were
m ido by Mr. Peckhani to interfere with any of his hand^
other than what appears in tin; Ularkson case.

It does not appear th.it what was said to Clarkson was
conuiiunicated to any other voter, or that any voter was in
any degree intluenced thereby. Clarkson hail voted ;inii
was acting as one of the Conservative scrutineers when he
was sent for by j\Ii-. Peckham, and the language w^as used,
whicli T have rpioted. This had no iiumediate effect upon
(.,'larkson ; he went back to the |)olling ijooth and continued
his work as scrutineer for an hour; and upon reflection lie

KAST SIMC'OK.

305

I 'rij')rnt')n

ic OVidtMlCl'

•CO votes to
,he rtjspond-

IrotiMl on a
!i)), l.iit tlii>
iLetl Consef-

lo^an wouM
•educing tlitj
i> the result,
(1 wliieli tlt'-

' close of thr
rded ; and a
ler.s, kept liis
fill comers on
s.

polling; lioin'-
was not ciin-
k1 could not
\-()Y of eitlier

„'larkson Ava>

voter was in

I voted and

eers when lie

lire was used,

te effect upon

md continued

retlection he

c'aine to the conclusion that he ou^jht not to work ai^ainst
the interests of the conijjany, and resii^nt'd. Al'tcrwards
hi' walUt'tl ahout, suviii'T nothiii-' to anyone touchin;; the
election, for tlie rest of the (hiy. lit; said, vipoii cross-ex-
amination : " I Itelibve all the men I liad spoken to voted
duiin;;' the day, and some of them voted Itefore I with-
drew ; I have no reason to suppose that they weie all'ected
liy what happeneil to me; I think they vote<l as they had
aerccd with nie."

I do not Sir why I should view the matter more un-
I'avouralily for the respondent than it is put in this «>vi-
dence; and my conclusion is that the interview of Claikson
with Peekham had no inlluence upon the votini;; and that
it should Ite piactieally eliminated in considering; the eirect
ul' '■ illeeal |)ractices" at the election.

No ille:,^al practices are [)i'oved to have tal
(a[)art from the two acts of lirihei-y and the lurin;^ of tin

Ken placi

team] except tile sale ot IhjU'jr to two jiersons at IMnns
tavern during- pollin;.^' hours and the keepin;^,' open of
Osscr's tavern during' the whole of the polling day, vvliicli
can be reasonahly supposed to have affected the election :
ami these would not, in m^- opinion, aj)])recialily alter or
atl'ect the result.

While the Imperial Parliament has to some extent miti-
gated the severity of the election law Ky exont.'rating the
candidate in certain cases of coiru[)t practices on the })art
of agents, when the offences are committed without the
.sunetion or connivance of the pi-incipal,and are of a " trivial,
unimportant or limited charact"r," Imp. Act, 40 \: 47 Vic. ch.
;')l, sec. 2:*, yet In-iljery i.s not ineluded in the categoi'} .
Under the Ontario Act, however, hi'iliery is included ; and
the election is not to In; avoiilt.'d if the acts were of such
tritliui;' nature or of such trifline- extent as not to affect the

IfSU

It.

lere IS tne expi'css (lecisidii n

f I lie Juilires who sat in the

Li nculii C((fic, 11. .Fi. C, [). 41)^!, that tv o acts of brihery
b}' an agent did noL extiMid bcy(.(nil the vote.s affected,
and did not vitiate the election.

nOG

IMIOVINCIAL KI.hX'TiON.

Tlui only ii<Mit'u)iiiil ju t Iktc with wliifli tin- uiivnt i>
oh.'iriicjiMf is till' liii ill''' of Conind's tciiin.

I iiin iiK'liiicd to stisjicot tlifit there Wiis u tr)i|i laiil fur
liiin in this instfUicr into which he i'ril ; I'Ut thf ad iirr.^r
is, as ufH'('tili<^' the result, ol" a tiilliiiL; ami uniinportaiit
niiture.

Ill the l/nifoh) Ctisc, already clterh where the iiiajnrity
was thl'ee iiidii,' ihail ill the prehelit ca-e. tlie aiMitinliiil
nets Avhieh ilMlllced the .Jli(le<. to avoitl the eleetioll Weic
atiotlier act of hiiliery hy another agent and a cipiisideraltli'
expenditure ol" iiKniey (.'?l.'())hy a,eeiit> uf the re>[MPi,cleiit
I'or eleetiou purposes, wliieli were not satislaetorily ex-
plained oi- defined. A fin tiler oulla\' ot" innnev li\- wlii'li
the taxes of nine persons Avere [mid to eiial'le them to vote.
and an extensive system of hettiim- eiiua^ed in hv tluic
men in the inteicst of'the I'espondent. Thesc^ matters heiiin
('(Wisidered eumulati\'elv, the Judiies tlioU'jht tliat I'Ut i'ni
them the re>iih would have heen the other ^vay : p. 4!tS.

In the lI'^.sV IhtslriiiiK ('(IX . II. Iv (.'. ."):i!', tlie majoiit)-
was o.'>7. It was jiio\ed tliat two agents of the respondeiit
liad certainly l>iilied lielween 40 ami '() vtiteis an(i pn'.
sumahly many more : tiiat two ]plaees weie ojieii dul■ill^■
tlie whole of poliiii^ (lay foi' tiie sujipiy t)f ardent s[»irit^
to voters at tlie instance of the respondent's a^ent : tiiat
on the cNcninii' ficfoi'e the polling' day a large meeting was
entcrtaimd contiaiv to law liv another auent. Tlniv
were also two eases of personation.

The Court lield that there had heen instances uf nearly
every cormpt ])raetiee foiliidden hy tlie election law; and
that it was imjiossiliie to say tiiat sneii numerous and ex-
tensive illegal practices had not afiected the result : and tiie
ekction was avoided : p. 'A').

In the present case tlie acts of corruittion were ly one
agent, and isolated, 'f lure was no improper expenditure of
money, no meeting sujiplied with i'orljidden refreshments;
no open or notorious ti'eati?ig dui'ing the hours of polling;
no illegal practices affecting a numlier of peopli', and nolli-
ing objectionable ir^ the conduct of any agent of the re-

KAST siMcoi;

no:

;lic mil jniity
i(> it<1ilitii>ii{il
U'C'tiDii WMv
(Miiisidcnililc

1 rt.'S|Miiii|r|it
I'lK'tolily r\-

■\ liv wlii'h

tllflll t(i \(i|i'.

ill liv tluic

liat tris lirili'j
tlint liiit T'l
\:\\ : \). 4!iS.
till' iiijiiiirity
(' n's|i(iii<liiit
ters auil pic.

open I luring-

inU'iit sjiiritx

n;j,(.'lit : tlitit

nKctiiin Uii>
liciit. Tliiiv

:e.s of iHiivly
nil law ; and
'Oils and I'X-
sult : and tlic

sp'tultMU, save the coiTiipt outlay of tlu- two sums of i?fc
jiud i^'', and tilt' liir'mn' ofoiu- tfiuii Ity Ilarvic

I clo tiot sec that t'!ioin,'Ij -.hoiild appear to rovorso the
result in Hid, r tliattln" olcctioM may \\v avoiiK'.l iiiidursiic.
IJ't. The im|)ortHnt words rtf that .SL'iitton iii'o "allVct the

IVslllt."

Piactii'ally I do not diller iVoni tlic iiitm-prctation put
lip Ml th 111 liy Mr. Jii>tii't; Orovi' ill thu lliir.hiifij Ciixc, as
ri'])titi'l ill IS S )l, .T. 470, a inoru (!oni'iso and in 'Lho licil
ivpoit than is to lie found in '1 O'M \- ||. 77. That h'artiod
.iiidi^i! is dcalini;" with irrcijularitics under a section iileiiti-
c;il in term-, with our siM;tioii ll>7, in which the sam(! words

are aho

foum

hi the II(icl:ii'U C'lsf nearly "),<)()() voters had heeii uh^o-
liitely, and many others partially disfranchised liy tlio
failure to open some of the polling booths. The jud:,'e said
hi' had to >ec whether the irreLfularities comj)lained of
alleete'l the result oi" the election — in other words, to deter-
mine whether they were such as fairly and suhstantlally
tn hear upon the result. He could not possibly say wlio'jher
the result would have been ehauLCed or altered if circum-
stances had been ilitferent; but he held that what had
occurred had an important and a substantial beariiiL,' ujiou
tile ii'>,ult, and that that result miijjlit have b(;en iitfereiit
if facilities had been afforded for the whole of the elector.s

to poll.

The oliject of the section, as he reail it, was that an elec-
tion, otherwise unexceptionable, should not be avoide<l for
a mere informality or triviality, but only for such sub-
stantial irreo-ularity or irrei^ularititjs as min'ht reasonably
and fairl}' liave affected the result.

The scope of section 1")!) appears to be tliat for one or
two or even three acts of illeifality of tritliiiLj nature or of

fliufr extent, an election should not be set aside wlien

tri
th

e majority is very consi

leralily

more than the votes

alVected, unless other illeifal jiraetices (whether in tlic res-
pondent's interest or generally), are made to a|>pear so
Jiitluential, or so extensive, or so insidious, as to induce the

nwT

no8

PROVINCIAL ELKfTION.

probable and reasonal)le l)e]ief that but for these act.s and
practices tlie result might have been different.

That seems to me to be the pi'oper interpretation of tliis
somewhat puzzling section as applicable to the case mi hand;
and if the^eff'ect is (as was argued) to lessen the safeguards
of electoral puiity, then that is a matter for the considera-
tion of those legislators whose business it is to chaiiw or
restrict the law which I am simply called upon to '•onstrue
and administer.

After much and anxious consideration, my conchision is,
tliat to such a case as the present this section was intended
to apply.

The acts are of s.:c'\ unimportant extent as not to have
affected the result, either alone or t.aken in connection with
other proved or fairly inferrable illegal practices, nor can
they, in. my, judgment, be reasonably supposed to have
done so. V:> "^

As to costs, under section 100, the petitioner should get
his costs of the petition and trial, save as to so much a;^
related to the irregularities of the returning officer and his
subordinates ; and as to these all parties should bear their
own costs (Athluve Case, 2 O'M & H. LSG, lUO ; Drogheda
Case, ib. 201, 211; Wigtovn Case, ib. 215, 230.)

I find further that the following persons have been guilty
of corrupt practices : W. M. Harvie, John Thornton, Daniel
Regan, Patrick Finn, and Jeremiah Osser.

And that there is no reason to believe that corrupt
practices have extensively prevailed at this election.

iij

Cameron, J. — Dealing with the questions of irregular-
ity presented bj' the petition, T shall consider them in the
order of their importance. The gravest is the neglect of
the returning officer to open the election on the nomination
day between the hours of 11 a.m. and 2 p.m.

Upon the evidence it does not appear that the delay of
an hour and ten minutes, which occurred l)etween thu
time fixed by the returning officer's proclamation for the
opening of the election and the actual opening in any man-

EAST SIMCOE.

80!)

ese acts and

I to "onstrue

ner interfered with or prevented the nomination of any
candidate.

If, therefore, the objection is a fatal one, it must be be-
cause the returning officer's proceedings were whollv unau-
thorized and void ; and the contention of the petitioner's
counsel goes this length.

In determining the question regard can only be liad to
the provisions of the Election Act of Ontario, as it is
oidy under that the elections are held and the proceedings
for holding them pointed out and directed.

The provisions of the Act must V)e construed and inter-
pieted according to the ordinary rules which guide courts
in the construing and interpretation of statutes.

By sec. 2G of the Act, whenever a general election is to
be held thu Lieutenant-Governor in Council fixes the day
f()r holdaig the election, which is called tiie Nomination
Day, and the day on which the poll takes place, if a poll
becomes necessary.

By sec ?7 the day fixed " shall not be more than twenty
(lays nor less than sixteen days from the date of the writs
of election ; and the day for holding the polls shall not be
more tban eight, nor less than six days after the day foi*
holding the said elections."

By stc. 28 it is provided that at every general election,
the elections .shall all take place on the same day ; ami th(!
days for holding the election and opening the polls shall be
stated and inserted in the proclamation calling such gen-
eral eleclion and in the several writs of election in that
behalf.

By sec. 48 the returning officer is required, at the time
and jdace fixed for opening the election, to proceed to the
hustings and make proclamation in the specified form, and
shall requiie the electors then present to name the person
they wish to choose at the election to represent them, in
obed'^ice t' the writ of election.

All these provisions are imperative, giving to the word
"shall " the force assigned to it by the Interpretation Act,
R. y. O. ch. I .sec. 8, sub-sec. 2 ; ?>nd I presume if the Gover-

HU)

PUOVINCIAL ELECTIOX,

nor in Council should fix a day for holding an election, less
than sixteen days from the date ot" the writ of election, an
election held on the day so fixed would be void.

No (juestion of prero;^ative arises, for under sees. 84 and
02 of the British North America Act the Legislature has
power to legislate in respect to the constitution, elections,
the powers and duties of returning officers, &c., and eve '-
thing relating to the constitution of the Province, except
the office of Lieutenant-Governor. Therefore the Lieuten-
ant Governor in Council nnist conform to the rules liiid
down l)y an Act of the Legislature, and cainiot disregard
its positive recjuirements any more than any other per-
son or officer named in it.

If sect. 26 had required the Lieutenant-Governor in
Council to fix tlie time for holding the election betweiMi
particular hours of a particular day, I can see no good rea-
son why the <lay should not be disregarded as well as the
hours, and to disregard the more precise and limited por-
tion of the day would seem to bo i^ven more objectionahlo
than to disregard the whole day as the precise limitation
wouM be more likely to induce the electors to think if
the ))roceedings did not take place at the time specially
indicated and limited, they would not take place at all.

If the Governor in Council, then, cainiot select a time
for holding the election outside of the linuts prescribed by
the statutes, it is difficult to see how a returning officer can
do so, where statutory requirement is as clear and i)ositi>'e
as- in this case.

By sec. -i2 he is required to issue a jn'oclamation in a
prescribed form, declaring therein " the place, day and hour,
at which the election will be held, and shall cause the pro-
clamation to be posted" as (hrected by the Act '" at least
eight ilavs before the day fixed for holding the election,"'
called the nomination <lay.

By sec. IV-i it is declared again : "the place at which the
election will be held shall be fixed by the returning ofHcer,
and ^liail be in the publico i)lace most central and most con-
venient for the great body of the electors in the electoral

EAST SIMCOE.

;ni

district for wliicli lie is acting, and the hour to be fixed
shall bo between eleven o'clock in the forenoon and two
o'clock in tlie afternoon of tlie day so fixed for opening
the election/'

I do not suppose it can l)e successfully contended that if
the returning officer named one place in his proclamation
jind opened the election at another, that the election could
he held to be valid, althougli no more inconvenience was
(iccasioned thereby than has been shewn to have occurred
ill this case, that is to say, none at all. If he could not
ili.sreij-ard the directions of the Act in the one case, liow
can he in the other :' What is there to guide the Court in
arriving at the conclusion that the provision as to place is
imperative, while that as to time is merely directory ?

'riiei)olicy of the Legislature in requiring all elections
to be held on the same day, was to prevent the possible
iiiHiience that the result of one election might have upon
aiiuther, and to restrain outside interference as much as
pussible in the conduct of elections, without denying an
elector in terms the right of voting wherever lie was
(]Ualilied to vote. The Legislattn*e may therefore in its
wi^dmii. have thoun'ht such intiuenco and intei'ference
would be better guarded against by limiting the time
within which the election sliould be opened to the specified
liours, as renilering it more difficult for any one to take
part in two elections. To hold the re([uirements, then, of
siM'tion oJ] to lie merely directory and not imperative, is to
salistitute the discreti<m of the Returning Officer in the
first place for the positive provision of the statute; and in the
next, to support the exercise of such discretion by a judicial
interpretation directly at variance with the language used .

I am quite aware that in the construing of statutes,
courts have held language, imperative in teiins, to be only
<lirectory ; but then there must lie within the four corners
of the Act internal evidence that the im2)e!-ative words
Were intended as a direction, and not as an indieation of
an essential requirement of the design to be carried into
effect, to warrant their being so construed.
40 — VOL. I E.c.

:U2

PROVINCIAL ELI'X'TK >N.

I am unable to find in tliis Act sucli indication. TIk?
lieturnirig Officer receives his appointment throiinli the
writ of election, but his duty is presci'iljod l)y the Act and
solely by the Act.

There are oidy two cases in which lie may hold an
election on a day or time different from that mentioned in
his proclamation, that is, under sec. 54, where a candidate
dies between his nomination and the close of the poll, and
under sec. 8 of 42 A'ie. ch. 4, (O.) which provides: in case.s
where, from unforeseen delays, accident or otherwise, the
proclamation for hohliuL,^ an election could not be posted
up so as to leave the required delay l>etween the postinif
np of the proclamation and the nomination day appointed
by the Lieutenant Governor or the Returninn; Otficer, the
Returnin<; Otficer may fix new days for the nomination of
candidates and for the polling.

These are the only provisions relating to the fixing of
the nomination day.

By sec. 11)7 it is provitle<l : "No election shall be tie.
clared invalid l)y reason of a lailure to hold a poll at any
place appointed for holding a poll, or by rea.son of a non-
compliance with the rules contained in this Act as to the
taking of the poll or the counting of the votes, or by
reason of any mistake in the use of the forms contained
iu the schedules of this Act, if it appears to the tribunal
having cognizance of the rpiestion that the election was
conducted in accordance with the principle laid down in
this Act, and that such failure, non-compliance or mistake
did not att'ect the result of the election."

This is an express provisitm to prevent certain mis-
carriages from having the effect of invalidating the eleo-
tion ; ami under the rule of construction exprchisio aniuH
fst exrlnslo (iltcrins other irregularities than those specially
indicated are not within the saving, and are to be treated
upon their own merits or demerits; and, if the irregularity
is in an essexitial matter, the court must yield to it, though
in fact no one has been prejudiced by it.

EAST SIMCOE.

•n.>

le tixiiiLT iif

trtain mis-

In this case it cnnnot lie affiiniod ■witli positive certaint}^
tliat no other nomination Mould liave been made if tlie
election liad been opened at the liour appointed.

There is no reascjii to helieve that any other candidate
wouhl have heen j)roposed; hut as all the electors had the
ri"ht to expect that the election would have heen hejinn at
the hour appointed — and we must assume tliat they kn(>w
such commencement was required to tahe place nnder thf
statute not later than two — I am of opinion the (.'ourt is
not at liherty to spec\date as to wliether there would or
would not liave lieen other nominations — whether the
irregularities provided for liy section 1!)7 could atlect the
rt'stdt could be ascertained with sutticient certaint}- ; that
is, could be determined beyond a perad venture liy the
voters' list, whether the entire votes given against the
elected candidate would cliau<fe his maioritv into a
ininorit}'. If it would not, the omission to open tlie poll,
the failure to take the poll or to count the vote, or anerior
committed in tl e use of the wrong form, Avould be of no
consequence. But if the voters on tlie list would be
sutHcient to change the majority, no evidence or specula-
tion as to the way they would hav(! voted, would l>e per-
mitted to save the election. It would be set aside.

I had hoped to find some more direct authority than
any cited on the argument, but I have not been successful
in meeting with any that exactly covers this case. At the
time fixed for holding the election tlie lleturuing Officer
was not at the place fixed. It is doubtful on the evidence
whether he was even witliin tin; electoral district. He
was, without culpable default on his part, unable to reach
the place till two o'clock, an hour after the time appointed^
and so he could not be said at the time and place fixed to
have been proceeding to the hustings.

The statute contemplates the Returning ( >tiicer Ix.'ing at
the place — by which 1 understand the village, townshij),
town or city in which the hustings are erected — and, being
in such place, .'■hall, at the hour appointed, proceed to the.
hustings and open tlie election immediately.

314

PllOVINCIAL ELKCTION.

Ill lefereiico to the iiccnssity of lioldinj,' an eloction at
tlio place indicated, I find an autliorit}' under tlie Municipal
Corporations Act, which is mucli a^^ainst lioldinj^ tliis elec-
tion valid. It is a decision by the late Chief Justice
Draper, in Chambers : Reijimi <\n. rel. Preston v. PreMon,
'2 Cham. R. 178. The election by the by-law of the
iiiunieipality was to be held at the place of one llobert
(Jill's. It St) happened that the divi'IinL;' line between two
of the wards in the niunicipidity ran thr()U^•h the farm of
the said Gillis, his house bein^• in one ward and his barn
in the othei'. The election was held at the house, which
was nol in the ward for which the election was being held.
Tht,' !• was the defeated candidate. He objected to

till , , ■ 1 the Returning Officer proposed to go to the
barn and iujld the election there, but he was not further
uri;'. i, and the relator in reply to a question put to him liy
the Ketni . "ng v uieei', said if he liad been elected he would
have considered himself duly elected. The learned Chief
Justice held, as the statute required the election to be held
in the ward, it was void; ami tin; relator had not precluded
himsrlf from <lisputing tht; validity of the election by
acquiescing in the proceedings going on at tlui house.
There was no ])retonco that any one was misled by the
election having been so ludd.

In lieijlnn. ex. rel. Al/cmdin;/ v. Z(n;<j('r, I P. R. 21!), Sulli-
van, J., in C'hambevs, held that an el(,'ction holden at a
])lace appointeil by resolution of the co\nieil was void,
as the Statute 12 Vic. ch. SI, sec. 5, reipiired the coun-
cil to fix the phice for holding the election ]>y by-law;
and sec. i), while it authorized the council to cluuigc
the place oi'iginall\' lixed, tht' change was reipiired to be
jnade by by-law. The election was set aside, with costs.

In this cjise the relator did not appear to have interfered
with the election.

The report of these eases does not show that the decisions
were based upon any direct authority. They seem to have
been based upon the view that an election held ditfercintly
from the ni') le indicated by the statute could not be sus-
inined.

EAST S1.M( OK.

In the Kill;/ v. Laixjliori}, 4 A. >.V K. .'j.'iS, tlio rlcf.'ndaiit
was elcctt'tl Mayor of Borwiok-upon-TwtuMl ; and on u (jno
irarrmdo iiifoiniation ibr liis removal, it M|ipcar»i! tiiat no
jiarticular Ja}' Avas set by cliartci' or custom for the cltction
(if Imrgc-ses, liut tl\at ])reviousIy to n\ot'tings for that piir-
jKisc notice was ^ivcn liy ringini;- a licli three times, namely,
for a quaiter of an liour, two hours hefore the guild was
licld ; a^ain foi' a <|uaiter of an hour, an hour and a half
licfoiv the guild, and again at the time ap}»»)inted for the
nuetingof the ^uild, the hell heingloud enough to be heard
all over the borouyh, and by the ser<feant-at-maee <dvinu
notice personally to the resident burgesses, or leaving word
iit their plaei's of lesidenee of the intended meeting, and if
roquired, of the pin pose for which it was to be held. Two
r<'sid«'nt burgesses of the names of liobertson, a iisherman,
and i\laee, tlid n<tt receive such notice, and did not attend.
The .sergeant-at-maco gave evidence that Kobeitson had
several times befoje the meeting told him not to sununon
him, as he was frecjueiitly out at sea, and he could hear
tell of what was ^oinL;' on: and 1 ■ had omitted to serve
^lace accidentally. The jury found the custom was as
pleaded, to give notice of the meetings of the burgesses in
the manner mentioned; but that the custom was to be taken
with the (jualitication, that it was not violated by an acci-
dental omission to .serve the notice upon any individual
laiigess, and the omission in the case of Robertson and
Alace was accidental. The jur\ "s finding Mas taken as a
special timling; anil leave was given to the Crown to move
the Court to enter a verdict for the Crown thereon.

Lord Dennuin, C. J., in delivering judgment said, at p.
')4o : "The juiy give their opinion that the custom stated
ou.dit to lie r(>ceivetl with the,' (jualitication, that an omis-
sion by accident doesjiot invalidate ; that is, that a custom
to suinnieii all, mtans a cust( m to sunimon.all subject to
accident. If so, the verdict (iUL;ht to stand ioi- the defend-
ant. Tut 1 think that that is not so; and that an accidental
omission does not excu.se the ofiicer. Jf it did, 1 fear that
accidental omissions would soon become intentional ones.

31U

PROVINCIAL ELECTION.

Besides tliis, one omission was not acci<lotital. It was
made, merely because tlie lmr;^ess told the officer not to
siunmon him, as ha was j^enerally away from hom<i. It
is clear from authority and principle that this furnisheij
no excuse for the otHcei' omitting to suunnon the burgess.
The reason has been properly assigned at the bar, namely,
that attendance was a public duty on the part of tin;
burgess ; and this was admitted, on the other side, to be
true in the case of a select body ; but it was argued that,
in the case of an indefinite body, the rule was dilFertMit.
That is a distinction to which I cannot assent. The public
have the right to the security arising fi'om the service of
notice; and nothing but actual impossibility will cure the
omission. I come to this conclusion with irrcat reixrct,
because much inconvenience maybe produced with respect
to titles artected by the omission. This, however, must
always follow where a party is unduly placed in office.
And, on the other hand, the conclusion of law to which I
come, gets rid of the examination into motives, and simply
lays down the clear and intelligible duty of summoning
all the electors, so as to exclude the possibility of an unfair
advantage being taken."

The absence of Mace and Robertson, it is not stated, made
any dilierence in the result of the election ; and uj)on
authority, apart from special stitutory provision, whether
it would or would not, is a matter with which the Court
may not concern itself.

In Rex V. Mai/, .'> Burr. 2(jSI, it was held that an election
of a burgess was invalid, though all the eleetoi's had [)erson:il
notice of the meeting and its object, and all except two
were i)resent and were unanimous, by I'eason of the
election not having taken place at the guild hall, the usual
place, and the usual summons that of ringing a bell was
not given.

Lord Mansfield said, at ]). 2083: "Nothing is more certain,
than that there cannot exist a valid election, ujjon a by-day,
by sur|)rise. Notice nuist lie given to every member who is
within the limits of summons. In Corbel KynastoiiS Cuae

KAST SIMCOK.

317

onlv one member was unsummoiied. And personal sum-
iiinns must allow reasonahle time to the person siuainoned
But this is only where no other method of summons or
notice is estahlished ; as for instance, hy bell, a horn, &c.
Here, by the usage, the notice must be jnrivt'n by ])erson;il
summons to those who ai'e within the limits of tl»e borough.
But that is only part of the usual notice. There nmst also
bu a Ih'11 rung at 8 and 9, and then to toll from ten to the
time of meeting. This can't be dispensed with : it is
necessary to be comj)lied with, unless every single member
lie present, and consents to waive it. The want of it vacates
the election."

Of course there is no pretence for holding that the
pt^sitive re(|uirements of an Act of tlie Legislature are not
of as much force as those presented by custom. To huld
;ui election at a ditlerent time from that fixed by the statiite
is as much upon a by-day as if it were held U|)on a
(liderent day ; and, unless all tlie electors, according to these
authorities, are present and waive the irregularity, the
election must be held invalid.

As I have already said, it is impossible to say that no
elector attended at the proper time with the view of being
a eanditlate himself, or of nomiiiating some one else. As
hetween tlie twc candidates the contest was carried on
as it would luiN'e been had the nnuiination not been
delayed beyond the time at which it could be properly and
itgularly made. The custom that requires notice of an
election to some corporate uthce to be given in a particular
way is no more imperative than the statute in this case ;
and, if the manner of giving tlie notice in the former case
eaiiiiot be treated as directory, I fail upon analogy to see
how the hour in the latter can lie.

Under the lm])erial Act .So & 30 Vic. ch. 33, the
difKeulty here i)resented would be minimized, for by the
loth section any irregularity of tiii kind is covered. That
clause extends to all irregularities and informalities, while
the provision made by mir !!t7th s^etion is limited to the
errors or mistakes tlieiviii indicated.

31S

PHOVIXCIAL KfJOCTION.

Tli(! l!Ui,t,niJiL;i' of Mr. Justice (Jrove in the ILu'Luii'ii Ciiki',
2 O'M. & M., <at }). S'), st'ttlni^ forth what thi- uhjcci, ,,)'
tho L(!nrisliitiiri' w.is in (iiiactinj^ that clause, iiin)li('i||v a\
least sliows that in tliat h'arned .rinl^fc's opinion, in tlir
absence of such a provision, how forniiilalilc the ohjcctiiii)
here pi-csontcd would apju'ar.

He said : " II' I look to tlie whole, and to (he stMiso of it
as a wIkjIc, it seems to mo the ohject of the LeLfislatuiv in
this provision is to sny this — an election is not to be u[)Mt
for an informality or for a tri\ ialitv, it is not to be upset
hecause the clerk of one of the pollini;' stations wa< live
minutes too late, or becanse somi^ of the polling- papers
were not delivered in a proper manner, oi' weic not mukc- 1
in a proper way. 'J'lie ol)jection must ijo somethiuij;' sul»-
stantial, sometliinLf calculated to really atleet the ri'-,ult of
tlu; election. I think that that is the way of xiewiuL;' it
Avhieh is consistent with the tei-ms of the section. So Car
as it seems to me, the reasonalile and lair meaning of tlio
section is to jirevent an election from becoming void by
trifling objoctions on tho ground of an intbrmality, becau>e
the judge has to look to tlie substance of the case to see
whether the informality is of such a nature as to be faiiiy
calculated in a reasonable^ n\ind to produce a substantial
efiect upon the election. "

From tliis laniiuat'e the inference would seem to be inv-
sistible that the learned Judge, were it not for the sa\ Iiil;
clause, would deem the non-observance of a positive rcMjiiiiv-
nient of the Act by the Returning UtHccr a groun<l for
avoiding the election.

In the Ih/c Casic, before a Parliamentary committee,
reported in 1 V. R. & D. 112, the respondent, who was elected
without o])jiosition, admitted that he could not retain his
seat, the Returnin!i- Utlicer having onlv given notice on the
20th December, of the holding of an election on tint I'.'hd
Decembci". the statute under whicli the electioJi was lull
3 & 4 Vic. ch. 81, reeiuiring that three clear davs notice
of the election should be given. The cornniittce declared
the election void.

11' '■

KAST SIMCOK.

.SI!)

In thf Lntf/ford ('(ist\ 2 ()"M. \- II. N. Fit/-( rjild, .].,
oxpteHsed ;i view udvci'sc to souil' cNlciit td tlis. j!uf, it
MUsfiTi <)l)S(!rvation iDJidc lirloir jir^iiiiM'iit and net iiitcndt'd
as a decision, or as Itascd upon a consideration of tin i|iit's-
tioii. TIh! point, hoNvevei, wns a narrower one liian Iiere,
;is no one conld be inisle(l. It was that the Ivetnrninif
Odicer had not nuuh' li;s ]iroi'hiniiition ■svitldn two days
after tlie ivoeipt hy him ol the writ of eloetion. Tht* sta-
tute,! (Jieo. IV.cli. 11, sec '),re(|uiied the sheritl ininicdiateiy
after the receipt of tlu^ wiit to endorse the (hite of reeei\ ini;
the saln(^ and within two days to canst' prochiination ot" tlio
time and j)lace of holdini^the eh'ction to he made.

The sluritr re('ei\(d the writ on Fiidny, 24th I)ec(nd)ei',
hnt did not make pidcianiation initil Mondjiy, the 27(h
Decemher.

Mr. Jnstice Fit/geinld stated liis opinion was ad\er.'-e to
liie contention as to tlie ehetitn 1 ('in<;' \'oid ; hnt, it ncees-
sarj', lie wonhl call npon counsel on the other sich- to
answer it. 1 he election was dechired void on other urounds,
and the jioint was not decided.

In Eiijjland there is no Interiiretation Act simihir to onis
and none that ^ives an}' s]iecial lorce to the Moid ".^hail."'

The cases in En<!land thus are not ahsolute auides to us
in determining wh(>n thererjuirenicnt of a statute is merely
directory, and Avhen imperative.

The 7tli section of the Interpretation Act declaios that
e\-cry jirovision of the Act shall ajijily to the lievised Sta-
tutes, and to every Act thereafter, except in .so far as the
provision is inconsistent with the intent and ohject of such
Act, (jr the inteij retation Avhich such piovision would give
to any word, expression, or clause is inconsistent m ith
tlie context — and except in so far as any pro\ ision thereoi'
is in any such Act declaied not aj)plicalile thereto.

TIk' Mill section declares the word 'shall" shall hr con-
strued as inipeiative.

But this tloes not solve the ditficulty entirely. The ((ues-
tion still ]■( mains ; v hat is the consi (jUi nee ol the luiuiiiing
(Jtlicor nei>Iectin<]f to observe a direction oi the statute ^ that

41 — VOL I E.C.

IT fT-7^

■.J2()

IMIOVINCIAL KI.KLTloX.

is uiiqucstioriaMy nnponitivc as i'nv us lie is coiiccrniMl ; a
rcfiTcMci' to Kiii^'llsli juitliority clous not Irud tu a satisl'ac-
tolT irsult.

Tlicrt' is a mass ot" tlmiisioMs; l)iit it is ilillicult totixtnict
a clear and ildinitt! rule t'loin tlieni.

I cannot til) Ix'tter tlian to refer to the ian-^ua^'e of Lor*'
IVnzance in l/txrn nl v. /io<lui;/loii,'2 P. 1). llO.'J, at p 2ll,ai
illustrating' the want ot* cortainty. After noticint,' tho refer-
ence of counsel to Mii.niu'Jl on Statutes, and the cases (juoteij
therefi'oni, he thus expressed the residt: "Since the matter
Wfis ari^ued I have heen very|eare('nlly thi'onich tin; (;as('s,
liut npon readiuLj them all, the conclusion at which 1 am
consti'aiuetl to ai-rive is, that you cannot ;^lean a <;reat <le;i,l
that is very decisive iVom a perusal of those cases. Tiiey
are on all soils of snlijects. It is very ditH<'ult to groii|»
them together, and tlie tendency of my mind, after readini^^
them, is to come to the conclusion, which was expi-essed hy
Lni'd Camphell, in the case of tlie Livi'i'pDol Il>i'on://i Ba nk
V. Tai'na,; '2 DeG.F. \: J. :)02 : * * 'No universal rule can I
laid down for the construction of statuti's, as to wlietln
mandatory enactments shall bo consideivil dii'cetory only,
oi' oMii^atory with an implied uiillilication for disol)L'(lienuc.
It is the duty of Courts of Justice to try t(j <^ft at the ri;al
intention of the Lcijjislature Ity carofnlly attend iuLj to the
who'e scope of the Statute to bo ci^nsidered.' " Lord Pen/,-
ance adds : " I believe, as far as any rule is ciMicerneo, you
cannot safely y'o further than that in each case you nuist
look to the subject matter; consider the importance of the
provision that has been di>re;,'arded, and the relation of
that provision to the general object intended to be secured
by the Act; and upon a review of the case in that aspect
decide whether the matter is what is called imperative, o;-
only directory."

As to the effect of the non-observancj of the require-
ment, the sai'.e learned loi'd, in the same case, at p, 210,
thus states his opinion: "Now the distinction between
matters that are dii'ectory and matters that arc; imperative,
is well known to us all in thi common language of the

KAST SIMCOK

321

It to extract

Courts nt Wf'stiniiistcv. * * 'I'll-' \•^'■.l\ <|iu'sti(Mi in al)
tlii'sc cases is tliis : A thiiiM Ims Imm'H ordcii'il \>\ the Li'ijis-
latuic to 111' tloni'. What is tlu» (M)ns('(|Ui'iic<! if it is not
(Imif ^ 111 tli»' case of stut\itrs that arc sail! to li- iinpcr-
iitivc. the ronits have ihciih'd thuf if it, is iMt iloiic tht;
Avlioli- thiiin- fails and the in'oceeilinifs that follDW upon it
iire al! \i>i,l. ( )ii the other luiiiil, when tlie (Courts hold a
jirovi^ioti to li(j Manihitory or directory, th'V s,iv that,
althoii^'h sucii provision may not h;ive lieen complied with,
the snlist'tpient proceediuL^s do not fail."

It', hi the face of tlie Interpretation Act, the ( .'on I't would
he at lihcrtv to sa\- the reciuiiement of the Klection Act,
that the time for the nomination or op -n in 4' of the election,
-^hill lie (i.\e(| lietweon the honi's of II ,ind '2. isonlydirec-
to'v, thi' (iiilicnlty is in si'i'in.,' what thei-e is in the provi-
sions of tlie Act that would make that |)rovisiou less
iiiiptrative than any of the others in ^'iNiiiu; Ifect to the
ohject of the LcLrislature.

Tlu! necessity of ()l)servine; strictly the reipiirements of
an Act of I'arliamcnt is viu'V clearly exenipliiied l>y tlie
decision in the case of Xoscirm't/ii/ \. I>iii;khi nd-lii-lke-
Mnnr, L. 11. !) C. P. 2:]:l

At the trial of the pi'titiou, and on tli" arL,onienit, I felt
Very strou'^ly that tht; errorof the lieturniii'^ Oilicer in not
opening'the election between the defined hours pur.suantto
his proclaniation, and the rerpiireuient of the Klection Act,
uu^ht not to avoid the election,

l!ut upon furthiu- consideration, and atter an examin-
ation of many authorities, inclndinL;' that of Itcc v. Foole^
C'ls.tcnij). fl'ir<lini('k(\'27, 2S, wherein Lord Hardwicke held
the mention ol' lioui's in the statute, then under consider-
ation, was only diriH-tory and not restrictive, I am unable
to retain tlie opinion then formed. Here the requirement,
as to time, is made by the Interpretation Act inqierative;
and it is impossil)le to say that no one was attecteil by the
election having- been opened nn)re than an liour after the
aii[)ointed time, and outside of the time expressly limited
fur such opening.

:i22

PllOVINC'lAL ELFX'TION.

The decisions of election c;)niiiiittce.s in this countiw \
need hardly say, are not anthuiities liindiiiy upon Electiiui
(.'ourts, especially where they are at variance witli l']n^•li-ll
decisions.

The cas(.' of Re Miles inul ('ui'i>or((t'n>a of Rirh hunul , '1>^
U. C. K. ooo, has much analogy to the present case. It
Avas the case of an ajjplication to <[iiash a by-law nmlcr thr
Canada Tenipeifinct A.ct, 18G4. The oth section of the Act
re<juiii'U thf cici k of the nninicipality to give notice in
.some newspaper iov lour consecutive weeks, that on a
named day in the next week, after the four week.s, at tlic
hour of ten in tlie forenoon, a meeting of tlu- tlectors would
be held for taking a poll. The first notice pidilished tixiil
the hour at two in the afternoon. The subse(|Uent notices
correctcil tlu' mistake and matle the hour ten. (nlcss Mh'
tii'st notice could be counted, the day .>f meeting was too
soon. The Court held such notice coald not lie counteil
l.iriefly observing it could not be taken as a good notice,
" as the statute re<|uires the notice to be for the hour of ten
o'clock in the fori'uoon, and not two in the afternoon."
The by-law was (juasluMJ.

Misconduct on the nonunation da"\ may avoid an eicc-

tion subsequently propei'ly conducted according to tlic

expressed ojjinion of Mr. Justice Keating in the Norivich

( V/.sr, 2 O. M. iV' H. 42, where he says : " If it were piox i .]

that a candidate or his agent hired men to attend the

nomination, and to hold up their hands on tlie oceasion,

my impression decidedly is that it wouM be illegal, and

would avoid the election," showing that an act that (h>uM

prejudice the result committed on tluit occasion, nia\' ^till

avoid the election.

Upon this point the \n\\y remaining consideration is, is
the petitioner estopped from raising the objection? I do
not think he is. As.suniing that he was present at tlu;
nomination— Avhich I thiidc very doubtful from his desciip-
tion of what took place, it being veiy pioliable that he is
confounding a })olitical meeting with the noiuination — lie
did nothiny; itft such nomination ; and 1 know no rule of law

EAST SIMCOE.

82:',

tli.it I'cfjuired liiin to become active and protest against the
proeei'iiiiigs. Had he noininated or secoudeii tlie noini-
iiatioii of a candidate, it would have heen different, po.r-
hiips ; but even tliat, according to the decision of Chief Jus-
tice Diapoi- in the Queen ex ref. Preston v. Preston, 2
Cham. R. 178, might not have had that effect,

I am of opinion, then, that tl.o election sliould be set
a'^ide on tliis ground ; but as the returning officer was not
wilfully nor negligently misconducting himself and the
delay in opening the election may resisoiiably be regarded,
as far as he is concerned, as the result of unavoidable acci-
cldit, if it were to be vacated on this trround alone, it
should Ije on the terms tliat all the parties .should l)ear
their own costs.

Upon the first and second grounds of iri-egularity, T am
of opinion that thiy did not per sc affect the re-iult, and
therefore are within the protection of clause l!*?, which
in'cvents such irregularities avoidiiiL>- the election where
the result is not affected thereby.

I am of opinion, on what ma^- be termed tlu! meritorious
grounds presented liy the petition and particulars, tlie elec-
tion should be avoided.

I think it was clearly establi.shed that William M. Harvie,
an agent of tlie respondent, was guilty of several corrupt
practices: that lie gave to John Thornton the sum of ^1
to induce him to vote for the respondent. The fact of the
giving of the ^4 was not disputed, but was put by Harvie
as a loan, and not for the purpose of inducing Thornton to

\'|>to.

If this shallow pretext should be allow^ed to prevail,
under the circumstances detailed in evidence, the enact-
ments against bi'ibery at elections would bi^ liut idle and
useless wo)-ds,fpiite incapable of preventing this piu-tieulai-
species of corrujit practice. The l)ril>ery l)v him of Daniid
Regan was equally clearly made out. The statement made
to Regan by Harvie. when the t'lirmei- wanted him to buy
his vote, that if he would declare upon his luuiour that it
had nothing to <lo with liis vote, he wo\dd ''-ive him the

mfm

324

PROVINCIAL ELECTION.

S5 to pay lii« taxes, was altoi>etl)oi- too tliiii a viil to con-
ceal tlic true aiul corrupt nature of the transaction. The
treating of Rei^fari on polling; <lay, witliin poUinor liours,
too, was made out so as to make? that a corrupt act. thou<'h
it was not cliarged in the particuhirs. The hiiino- hy
Ilarvie of Timothy Connor's team to take voters to thi-
poll on polling day, was also proved, 1 thiid<, lieyond
reasonable doubt. 1 thiidv it was also proved that i*atrick
Finn, a licensed tavern keeper, did, witliin pollinn' Jiours,
at his tavein in the town of ( Jrillia, give li(iuor to persons
therein : that William JM. Ilarvie was one of the persons
to whom such liquor was given; and I think there was evi-
dence sutficient to estalilish, in the al)sence of the evi<leiice
of tinn himself to contradict it, that he was an agiMit of
the respondent. The respondent was the canilidate nomina-
ted by the Reform Association for the riding, at a mei.'ting
of the association for the purpose, ealle(l by public adver"
tisement. He attendetl, and though it was not shown that
he moved any resolution, or did anything activi;ly at that
meeting, he was aniendjer of the association, and generally
took part in elections on Ix'half of the lieform eaiididati's,
and he was on thi.' iiollinii' da\' taking voters to the poll.

Mr. Robinson, the President of the Reform xVssociat'on,
Avas called to prove that he did nt)t think Finn worked :
that he was a friend of Thompson's and promised him
not to work, as he understood ; and Mr. Harvie gave his
opinion, that he was not working on their side before or on
polling day. The evidence of agency is not certainly very
strong, liut as Finn was a member of 'he Reform Associ-
ation upon whom the respondent relied for assistance a:id
support, 1 think, in the absence of any .statement i'rom Fiim
himself, that he was not supporting the candidate of the
as.sociation as usual, it is doing jio \iol«iice to the law of
agency to hohl it to b(> made out in this case. I do not
think that charges innubers 2'2 and '2o as laid in tlu> par-
ticulars are made out.

Charge 'I'2 is that .lesse S. Peckham, the y(»unger, lieniy
L, Lovering, and James Scott, agents of the respondent,

EAST STMCOE.

.^25

practised intimidation upon one Allan E. Clarkson, by
thn'atoning liini ^villl dismissal from tlic t-'nn)loymi'nt of
the Georgian Bay Lumber Company, in order to induce or
compel liim to vote for the respondent, or to n-fiviin from
vnting against the respondent.

The evidence shews that Clarkson was not in the
employment of the lundjer company, but oeeiipieu a house
of tlieiis rent i'ree, and was paid for boai'ding the men l)y
the men tlieniselves, but tbrongh the; company by the
latter retaiinng ont of the men's wages tlie amount of their
hoard for Clarksdu: tliat lit- had voted licforc anvthiiK'
was said to him on the suliject: tliat he was acting as
agent or sci'utineer for the defeated candidate, and while
so actinji' he was sent for by i>ir. l^eckham, the mana"er of
the company, and was given to understand his so acting
for Ml. Thompson was unsatisiactory to him ;iui] against
tlie interests of the company. IS'o thi'eat of any kiml was
then made, and. though Clarkson retiirned to the polling
lujoth intending to continue to act as scrutineer, on retleet-
int: on Avhat liad been said to him, he thouLiht it nuLiht be
])etter for him to cease to so act, and he did some time
hefore twelve o'chjck. It appeared that he had l)een can-
vassing the men at the boarding house for Thom[)son, and
.some of them had piomised him to vote for "J'honipsoii, and
he thought a good many of those who had so promised
voted before lie 1( f t the polling l)ooth. x\t the tini;; the
convci'sation took jilace between him and l\M.kliam. the
latter knew he had voted and that he was acting as seiuti-
neer.

The charge, therefore, as presented was not made out.

The charge, as laid in paragraph 23 of the ])artieulais,
wtus that Mr. Peekbam and tlu' two othei' persons named,
did dismis.s viie said Clarkson from the em[)l')ynient
of tlie company on account of his having voted at the
election. The evidence was to the efl'ect Just mentioned
in connection with charge 22, that Mr. Peckham had
remonstratetl Avith Clarkson for taking an interest on
the C'on.servative side, and said that any of the men voting

:i2(i

IMIOVINCIAL FJ.l'XrnoN-.

that way wore votin^f ai;aiiist the ]i()licy of the company,
and were taking the bread out of their own nioutlis. Tlic
witness ( Markson was unahlo to say whether it was ' oui- "
or " their" mouths that he said.

After tliis, on or about tlie IGth March, (ylarksuu
receiv<'d a notice to givci up tlie hoardiiin' liouse.

The notice was in writing as follows :

"Waumausiikne, March lOth, I.S83.

" Mr. A. Iv Ci.AUKSox, Wanbaiislieiie.

"Dear Sir, — I l)eg to inform yon that wc re(|iiire from
yon, within thirty days from this (bite, possession of tlie
hoiisi' ami premises at Waubaushene now occnpicid by yon
and lirlonging to ns. This is to give you thirty days'
notice, that you may have an '>o])ortunity of making any
such arrangements as you may deem necessary for (juilting
the premises within the time nauKid.
" Yoiu's truly,

"TllK (jrKOItiilAN Bay LlMUKR Go.

" J. 8(JOTT, Sec. and Treas'r."

After receivii.g this notice (,!larkson went to see Mr.
IVckham, and askijd him why he had giv(Mi him such
notice : Mr. Peckham re[)lied, " For shooting otl" your
moulii so much in the elections."

It appeared that (Jlarkson had been talking of someone
in coiniection with the company sending one of the hands
away to prevent his voting, and Mr, I'eckham assigned
this talk as the reason for his dismissal.

The evidence, though it may not remove the impression
that Clarkson's concUict at the election formed at least a
part of the ground for his dismissal, does not make it clear
beyond reasonable doubt that he was dismissed on account
of his having voteil at the election ; and the charge nnist,
therefore, lie dei'mi^l not proveil.

There was only one other coirupt practice proved. That
was the keeping open of his tavern by Jeremiah Osser,
who was not shewn to be anagiMit of the res[)ondent. The
evidence relating to the hiring of the teams of McKinlay,

EAST S[MCOE.

327

th(! livery stable keeper, does no*- come \ip to proof of an
;i('t,ii;il llirin^^ tliouj^'h it iipi>r(>;iches (lani^erously near to it.

I think it tlierc had l)oen no ipu'stion as to an election
(MiieiTiii'il, if a jury on thesi'n ; evi'lenci! had hehl the con)-
iiiitt('e lial)le on action l)ron:^iit by Mcivinlay to recover for
the bill, the Court would not have disturbed their verdi ex ;
liut the tividenee in this ease should not stop short ot" proof
of au actual hirin"^', and should not be allow(Ml to rest on
circumstances open to either construction, that the tean)s
\\<'i-.; Iiircd (ir volunteered and accepted as volunteers with-
out till' part'cs iiitendin;^ that the owner should receive
;iny ci)ui[)ensatii)ii. The practice ot" voluntetu-inu^ teams by
livery stable keepers is repreheusible, especially when tlieir
teams have been hin-d by candidates or their ai^ents for
what may be leijitimate purposes i)et"ori', the pollin;^ day.

It is very difiicult to say that such vulunteerinj^ nuiy not
oij the conseipience of such previous hii-inif, and the hiring
iiui)' l»e ample reward Ibr the lei;Mtimate use made of the
tiiuus as well as their im})roper use on the polling day.

The resp(»ndent is entitled to the l)enefit <jf tlu; doubt :
and I am disposed to give it to him.

It remains to be considered what is the proper result of
the eori'Upt pi'actices proved.

If section l.jOhad not been enacted, the election must
have been avoided. That section, in my judgnient, as well
as being exceedingly embari'assing, is pernicious in its
etiect, anil calculated to oj)en the dour to a good dt;al of
(■orru])tion in the conduct of elections. The object of the
clause is stated in it to be to " prevent the exi)ense and
trouble of new elections when unnecessary and useless."
What is meant by " unnecessary and useless :*" Does thi.s'
provision sim[)ly mean that an election should not be
avoided where the Couit is satisfied the result would ])e
the same as indicateil by the res[) ondent's majority and
the lunnber of tainted votes ; or can the Court take a wider
lanife of retiection in considerini; whether tlu; result would
he till,' same or not i The result might be ditferent on
acciHUit of a change in the political s.'ntinii'ut of the
42 — VOL 1 E.C.

"i"^

ii -

328

PU( J V I N f 1 A L K I , KCT I ( ) \.

electoifs, owin_i( to .some real or supposed oliit'etionaliK;
policy of tlic (ioverniiK'nt or Opposition— a cliaii^c in tlio
constitution of the executive (tr in tlic loaili'i-.^liip nl" tlm
Opposition. Witii such consith'vations the ('ourts ouL^^lit
to have no concern, and tlie Lt^tfislature coidd not have
lueant them to liave any. Then is the satisfaction to
depend upon the view the Court miglit take of what tli(;
result woidd have been if the corrupt practices had imt
been committed ^ And if such result would have Imcu
favourable to the respondent he ought not to be harassed
hy the necessity of under^'oin^' the second contest.

The ].')i)th section does not in terms go this 'i'Uiith. It
makes it necessary for tlie C(>urts to th'teiniine, from tlit;
(juality and extent of the corrupt piactiees, whethei- not
only that the election has been " ati'ected,'' but also whether
it maybe '■ rea.sonably suppo.sed to have bet'U affceted "' liv
.such corrupt" act or acts," not alone "but in connection with
other illegid practices." Illegal i)ractices are, I assume,
practices prohibited by the Election Act, Init not made in
terms corrupt practices, such Jis, if committed )»y the I'e-
.spondent himself, would avoid the election, though (^dy one
isolated case was establishe(! against him.

1 hnd the utmost dilliculty in putting a eonstiiietiou
upon the expression "of a tritliiig nature, or of trifling
extent," without adopting an inteipretation calculated to
nuike the Aet for the jirevention of corru])t practices at
elections virtually so nuich waste paper, or by giving
narrower construction to the latter words '■ of ti'itling
extent," than it may haxc been intemled they should
receive. Wheiv a candiilate has only a majority of five
and onl}' one corrupt act, say of deliberate bribery by an
agent, is proved, that would not atfect the ivsult, if that is
to be deteiinineil by striking off the corrupt vote. The
act in itself wotdd not be tritling in its nature, foi' no
deliberate act of brib.ery can be so <lesignated ; but the
evidence going no further than to show that one vote was
atlected, it nught be eall<Ml tiiliing in its t-xtent, if that can
relate to that which is not tritiinu' in its nature and shouhl

V^J-

EAST SIMCOE.

329

<)lijr(.'tii)ll!llplf
;liilii^v ill till'

t'i'slii|) (if till'
(Jourts ow^Ut

nil] lint llilVO

ati>it"act,i()n to
of what tli(}
L'tices liail iKjt
111 liav(.' liiTii
u in- harassed

lltL'St.

is !cl)Mth. It
line, f 11 nil the

wlii'tliiT not
; also whether

atfi'cted " by
nnection with
re, I assiiuie,
; not iiiaili' in
I'll liy till.' I'e-
jugli only Olio

coiistnicliou
Ml' of trilliiiii'
calculated to

practices at
hr liy i;i\'iHg
'■ of trifling'

they should

oiity of five

riltery liy an

suit, if that is

)t vote. The

lature, for no

ted; l.ut the

mv vote was

it, if that can

'e and should

not l»e restiicted in its application to things trifling in their
iiatuie and extent hotii, and tlie n nioval of tlie (•oriu[)t
vote woidd leave the result exactly as it was heiore, if the
function of the Court is sin\p!y t(jtake the scrutiny limited
in its extent and operation by the corrupt act actually
jdovcd.

Tiie clause must l>e read in connection with that which
precedes it. Section lohl by itself would re(|uire the Court
to avoid an election on proof of one corrupt piactiee gross
{jv trivial ; and read in that connection, if the act jnoved is
not in its quality of a tritlino- nature, it will still axoid tin-
election unless it appears at^iiinutively that the act is con-
lined and limited in its operation, so to speak, to itself, ami
could have no influence beyond.

To illustrate: suppose a poor, jjoverty-stricken elector,
without intiuence, is paid i:?") for his vote, the ellect could
not reasonably be supposed to extend bcyonil the oni' vote,
but su]>pose the !?5 were jiaid to a farmer with tixt:; sons
all qualitied to vote in respect of his farm, could the pay-
ment in its influence be limited t<t the I'aiiner's own vote;
or, in the case of an influential man with a nundier of
electors in his employ, be paid .'r'lOO, could it be said reason-
ably the result might not be aflected, though the payment
actually was for only the one vote, and the influence of
the party bribed, although it did not appear that he used
ai\y intiuence, or it was shewn atHrnuitively that heditl not
use any influence, could it l)e held that it could not r^'ason-
ably be supposed to have aHected the rt'sults or sui>pose
that the agent paying the 5?5 is a very active and influ-
ential [ ersun in the election, can his act be regardt'd in the
.same light as that of one, who taking no active part except
that of voting, finds his neighl)our willing to vote on the
same side if he is paid for his day, and pays him ?

In the one case there can be no reasonable eei'taiiity that
aiuunber of corrupt acts of a like cbaraclfr may not have
been committed, though tin; agent may swear that he has
not committed other acts; and in the other the probability
i.s the act is i.solated.

:5;50

PUG V 1 NCI A L KLKCTION.

If tlie corrupt acts, taken in connection with any oUut
illt'^'al pi'nctic(!s tliat may have prevailed, cannot reasonably
111' supposed to art'ect the result, tlio Court is hound not to
avoid the election, because tlie word "shall" in the sentence
" such corrupt act or acts shall not avoid the election," is
as imperative upon the Court, determinini^'its duty and obli-
i^vtion, as it is in preseribiuL,' and deliniiiL,' the course to be
]tursued by the returniiiL; otiicer in opening and conduct-
iny; the election.

The (lualitv of th(! act \mn<r essentially bad, the extent
of its intluence is not to be measured or estimated merely
by the number of votes actually jn'oved to liave been tainteil
thereby, but is to be retj;ar<liMl and estimated in connection
with the intlueneti of the party proved to be guilty of its
commission, and by the opportunities he may have ha<l ot
resorting to lik(> practices in other cases.

T think I am bound to hold in giving a just interpreta-
tion to sections 1")S and I-")!), when it is (established that a
recognizeil, important, and intluential agent is proved to
ha\-e Committed one or more delil)erate acts of l)riV)ery, the
eanilidatii cannot retain his seat though the votes shewn to
have been affected thereby might be struck oft* without'
putting the candidate in a niiuoi-ity. In the present ease
the respondent was the cundidate of the Reform Associa-
tion. \h} in one sense, in t]m managemeJit of the elec-
tion, was more their agent than their principal, and Mr.
Ilarvie, the secretary of the association, was, according
to the evidence, one of the most active members of the
organization, the counsellor and )'eferee, so to ,spe,t,k, of the
Wresiilent. To permit, therefore, corrupt jiractices com-
mitted by him, to have less force than if they liad been
committed by the camlidate himself upon the election,
would 1)(^ estal)li.shing a most dangerous precedent, which,
if it must be established, its creation will V)e a duty devolv-
ing upon those who have a right to review and overrule
my judgment.

1 am of opinion that the conduct of Mr. Peckham in
remonstrating with Clarkson in the manner he did, and

KAST SIMCOE.

381

omul not to
the scutcMico
oloction," is
ityaml ol)li-
coiirsc to lie
M I couduet-

1, the cxtfMit
atoA incrolv
IxM'ii tahitcil
u conncctidii
fuilty of its
have liad ot

t interprtita-
islu!(l tliat a
is pi-ovetl to
: l>rihoiy, tin-
tes shewn to
off" without
present caso
)rni Associa-
of tlie elec-
pal, and Mr.
is, according
nbers of the
•pn,..k, of the
aetiees cojn-
\V had been
the election-
ihMit, wliicli,
hity devolv-
iid overrule

Peckliam in
he did, and

tlitivhy in(hicinn- him to ahaiidon the j)o.sitioii in wliich he
■yvas acting for Mr. 'I honijison, the respondents opponent,
Avas exeeedinoly I'eprehensilik' ; and his actions may have
hiid consiik'raMe inflnince and ii deterient ellect upon mlier
tinphnces of tlie Georgian Jhiy Lnndier ( 'o., as wei! as
depriving Mr. Thompson ol wluit, under the eirciunstances,
was vakudih' ai<l and assistance.

i ha\e no (hniht eitlier that he sliduld he laid to lie ;in
a<^ent of the respondent.

The evidence shews that the res|iondent sought hi^ in-
fluence and snpjiort, and it was jirondsed to him. He also

wi.slied him to preside as chaiiman of the i ting lieM hy

the I'espondent at Wauhaushene. .Mr. I'eekhiim declined
the honor of acting as chairnum, (tn the ground that he was
an American citi/en, and not a British sidiject. He sent
one or two of his men witli the respondent to introiluce him
to the other men. Tlie electors of that section were chiefly
tlie managers and men employed hy the company. I thiid<,
tlieu'fore, that as the respondent sought the inthieiice of
Mr. Pcckliiim, he shonkl he held responsible for the way in
which it was used, and that it is to be regretted the moilesty
tli.spjaj-ed hy Mr. Peckham in declining for the reason he
gave, which by the way was a most just and foicil)le one,
to act in the comjiaratively harmless position of chairman,
was not fallowed up by decent and beconnng lujii-inter-
fcrence in tlie election and in the politics of a country to
which he owed no allciiiance and acknowledi^ed iioiie.

Though 1 have held that the ,si>ecific charges relating to
.Mr. Peckham wi-re not made out, 1 make these remark >■ in
conse(|Uence of the observation of Mr. Justice ^lanist\' i

(JUC

(he L'uhfidd Cose, 3 O'M. & H. lo.S, on the conduct of an
influential ffentlenian of the name of 11 inclih', which was,
it appears to me, less a direct anti imitroper interference
with the freedom of the electors, than the conduct of Mr.
Peckham in the present case.

On tlie whole case I am of opinion the election musr bi3
i-et aside, and that the petitioner is entitled to the gciiiMal
costs, not including those relating to the irregularities com-

332

IMIOVINCIAL KLECTIOX.

1®!

mitttnl 1>y tlio HctnniiiKT; Ollieor and l»y the dopnty return -
ini,' (irtiotT ill Tiny, as to which, cacli i)!irty must Ixiar liis
own costs.

I concur in thn ()]»ini<)M oF iny hjanu'd hrothcr, the,
(Mianccnov.thiit William M. Ilai'vi(!, .)ohu Tliornton, Daniel
Ile^an, Patrick Finn, and Jeremiah Osser, wore .t^uilty of
corrni»t ])raeticescommitteil at the election ; l»ut, in the lace
ol" (lie I'act that one of the chief executive oftiuors of the
llefiirm Association was ])rovi'd to have heen v'nilty of
several corrupt practices, 1 am not able to say that corrupt
practices may not have more extensivtdv pi'evailed; while
I have no reason to think they prevailed to an extent to
disentitle the district to the vig'ht of representation.

From tliese jni]i;'monts an appeal %vas had to the Court
of Appeal, and was ai'^iued on October .'Ust, 18S+.

November 11, ! SSO. Mao.vrtv, C. J, (). — [ do not
propose to (piestion any of the tiudinL,rs on which the two
learned .Iudt,'i's havc^ ag'reed in reportine-. They a^-ree that
Harvie, an agent of respondt-nt, was guilty of bribing John
Thornton to induce him to vote for respondent, and of
bribing Daniel j-legan foi' the same purpose, and of hiring a
team on polling ilay from one (Joimor. They also find
that Finn, a licensed tavern keeper, did during polling
liours give liquor to said Harvie and anothei'. "JMiey differ
as to Finn being an agent. Boyd, C, decided that the
election ought not to be avoided under the saving provi-
sions of sec. l.VJ. Cameron, J., held that it should be

avoK

led.

Section lo!) reads, "To prevent the expense and trouble
of new elections, when unnecessar}' and useless, in case of
a corrupt act or acts being coinnutted by an agent without
the knowledge and consent of the candidate, if the conu})t
act or acts was or were of such trilling nature, or was or
Avere of such trifling extent t/i(d the rexnlf cn.unot have btwii
affected or he reasoudld/f siti)po.'^eil to hare heen affected by
such act or acts, either alone or in connection wdth other

FAST SIMCOK.

n»a

illcn^al ]M'!U"(ii'«'s at tho elcctioJi, suoli coiTupt act or acts
.slioiild iKit avoid tlic election."

Tliis flection was very cl»)se, over 2700 votes polh'd and
till' iiiajoi-ity alioiit 2.S.

Koliinson and Jfarvie, one the presjilent, and tin; other
tilt' scfiTtaiv of tlie Uet'orni Association, setMn to have
liciMi the |irinci|)al a^jents ;ind managers 'of the canvassin<;
jiiid or^;'ni/at ion of the proceed ini^^s on res[)on(ient'.s part.
Ml'. Koliins(»ii in his evidence! states this very fidly. H(^
states that liarvie and he did the woik of the election ;
Har>'ie"s own eviilence is X'-ry full and eleaf in all this.

Mr. Ilarvie's acconnt of tin; hrihini;- of Daniel lle^jan,
may In' referred to. lleLfan eaine to him ami promised him
tn net the support of his father and three hrothers for §1.')
or >^20. Fh- was aware that Re;;an had the reputation of
scllini;' his vote, as also some of the other Reijans, and
liarvie had previously asked him to vote for respondent*
To tliis man he lends iy'), dcclarin'j; and ajjfreeinif, as he
says, that it was only a loan. Soon after this, Thornton
(•uiiH s, iicnan with him. Thornton asked for >>'1{), i\ v him-
self, his father, and hi-others. After takin<^ his " word of
honour " that it Avonld not influence his vote, Harvic
lent him S-t. Thoi'iiton swore that Harvie sngij^ested
the loan insteail of the direct In-lhe. Ifarvie claims that it
was his sun'Lfestion. Pie cana^ to liarvie on account of
what Ri'i^'an told him of his loan.

These transacticms were, of course, found by the learned
-Imlyes to ho clear cases of hrihery.

Mr. liarvie is also fouml to have ille^'jilly hired a team_
He also admits his drinkiiit;' in poUiuLj hours, in Finn's
tavein. On the polling day Mr. Ri^gan manifested some
hackwardness in going to the poll; anil one Ramsay, in.
Kenan's presence, applied to Harvie to get lu^gan drunk,
liarvie then •went to a druggists and got a small bottle of
drink eai'efully wrappeil up, wdiich he gave to Ramsay lor
Regan.

We thus find this most active agent convicted of three
distinctly illegal acts, two of them involving the moral

BPfpr^

:i.H

I'KoviNriAF, i;i,i':< TioN.

tnr|>ituil(' of luiliriy. Wf ;il<i> liml liiiii viulnt iiiy; or ;issist,.
itii^ in vidlntin^f llif I;i\v in tin- dtln r ('!l^(•s iiifiitioiicd. (iii
tlio (^viWcncc lir ii|)i)i>ais as the )»i iiicijuij (Imiir in mII tlii>
(>l(M't,ioii .stniu'L;lt> : Jind w«' liavctinw to consider wlictliridn
i]\o evidcnci' licfoit us \\i- can j^ivc the ic>pondcnt the
beiu'lit of tliis 1 notirsoction.

I Iiiivc I'l'ad will) niM'di attention liotli tlie ojiinioii- nn
this head. I h;i'e much respect I'or tl:e diliL;ence ;iiiii
learning' ot'liotli the learned .Indies; iind I try to \\ei^||,;is
they dcsciNc, tlie reasons and arnunicnts )id\jiiiced I'V c.icli.

I am CO injicih'(l to say tluit my judgment ridly coneurs
in the result arrived at hy < 'liief Justice Camei-on I nn,!
not rcjieai his reasons. I am w holly unaMe to arrive at
the conclusion re(|nircd hy the statute, either that the coi-
nipt acts were of siieli tiitlini: iiatnie or i-xtent that the
result could not he atlecteil, or could not he re;i--onah| v
supposed lo lie allecti d liy such acts, eitli<^r alone oi- in
connection with other illcnal practices.

T ajj^vee with tlie distinctions drawn hy ( "anieron, ('. .h.
hetwcen an isolated act done hy a person whom the law,
as it Were, forces ns to oonsidei' in that tinnsiu-tiou tlie
a<^'entof the respon<lent. and the acts, sevei-.d in nundier of
a man shewn to he the most active aijeiit aiid manager
of the pai'ty, an<l v\ ho took such a \t'ry active part in tin'
canvassinfi,' and arrangiiii,' for hi'ineiii;^' up the voters, and
in the general guidance of the whole contest. My hiotla i
(\anieron [)nts this distinction in a very jioweiful and
intelligihle light.

1 think it inipossihle to righth' ajijucciate tlie ethct and
meaning of this |.")!)th section excejil hy a caieful consid^^v-
ation of the aspect of th<' whole conduct of tin -m* -Ht on
the evidence heforo us.

We must renienihcr that the law avoids ti h ction for
these cori'upt act:- It is for the respondclit to i rinii ini-
s(df with reasonahle clearness within the slxdterinu j ro-
visions of the section. 1 am tinahle to hold that he has
done so. AVe have hefoie us a very close contest in which
the change of a dozen votes from one candidate to the

KAST SIMfOK

:{:{;

)Mu'i' wonhl alter tlir result. We tiiid t

W.I verv <

lis-

t|j_f (,v !ls■^l^t
[iolll'il. (Ill

in iill \\\\>
w lit'tlirr on

lollili'lit tln-

ojiiiiions nil
ilinciice aiiil
to weiuli, iis
iC'cd liy eiicli.
"mIIn' (•(iinuis
run I iiiiil
1(. nnivc at
tliat tlie (■>>]-
rut that tlir
' rcii-^iiualily

ulnUe i)l' ill

iiu'ron, ( '. •! .

uiu tl"> law,

iisactidU tlic

II iiiiiiiliir. (it

ii'l uiaua'_;t'r

|iait iu till'

voters, and

Mv lildtlicr
lowcii'ul aii'l

lir eiti'ct aii'I
■ful eou^'M' I
ii, 1 st on

M rtioii tor
L«. I riuj; iiiii-
iclteviuL I'l'o-
t.lint lie lia<
Itest in wliieli

tiuct acts of l)iilieiy of pei-sous piot'eN^iuo to represent
.several otluT voters iu tlieir lauiilie>. Wr liii<| tlie
liilir, a|i|ai('iitly tlie un 4 active iiecut nud nianaj^'er
for tlio its|i»iniit ut, eouiuiit liny' otiier illeoal and (|Ues-
tiouahie practices ; and we are asked to liiid lliat siieli iiiat-
t( i> weie Ml trillii'o- in lluir nature and exti nt as to
couviiue Us tliat liny could not reasoualiiv lie siippo>rd
to allect tlie lesult I aui ■\vliollv uuaMe «,(. to tiiid.
AMiatexei niay le tlieroult of atiotlier election in Kast
Sinicdc. I am of (ipiuion tliat tlie exjn n^e and tioiililc
it may cause niay 1 e jilt tilalily 1 (line aiid iiKiiiKdin tlic
iiitt H .-ts ol J ui ii_\ ol tl( < t i( 11 a I. (I in tlie | u \ ( iiti( n ( f tlie
stuccssof jNKticcs ly su( li ell eli( n a^ii nts

ai A le

'llie fullness of tlie judLliu nts of tlie liailnd Jud-es
Kudtis it ni>n(ces>aiy for ine to di^cu-s tlie >au;e matt' is
at ereater lelietli.

J'Armiso.N, .1. A.— '11

lis matter comes liefore Ih- llll'N I

s( cti( u 'u of tlie ( 'oiitroNcrted Klectiolis Act, 11. S. ( ». eli. I I .
wliicli pid\i(les tliat '• In case of disaerceuieiit lictwctii llie
jiidj^c.s lieforc whom a case is tried, tliey >liall e.-itify such
ilis{iere( mcut, and either party uiay thereupon hiinn- the
attd' Itefore the ('(•uit of Aipeal, and that ('ouit shall, in

iii;

late to 111

(lis| osino' there (it. haxc the same Jurisdiction in all ii spt cts
as on an appeal l'r( in a (Kcisiun of such .ludycs.

'i he case was tiicd hefori" tlie Chancellor and the pre>( nt
Chief Justice of the ('(imnion I'leas.

'J hose Judecs disaereed iiiioii two matters, one toiichiiiLi'
the (licet of ccitain ii ret;ulai ities. and tlie other re.spectlno-
tlie etlect of stme eonujit piactiecs.

The da3 s tixcd by the Licuteiiaut-Covernor in Council
tor holdiui^- the electi(ii and ior the pollin^i;-, uiuh r s( o. lli
of the Election Act, were the iiOtli and 27th Fehruarv, liS>S-").
Section 3.') makes it the duty of the Ixetuiiiing- Othcerto ti.x
the hour for election '" letwcen eleven o'clock in the W le-
iK' II and two o'clock in the afternoon" of the day fixed hy
the Lieutenant-Governor for o[)eiiing the election.
4;? — vol- I E.c.

if'pw'r-

3:}G

IMIOVINCIAL ELECTION.

It liappcnod tliat a snowstorm prevented tlie Returnin"'
Otiicer frotn ivaehing Orillia, wliere tlic noniijiation was to
take place, until after two o'clock. When he arrived the
nominations were made. The petitioner was present when
they were made, as he tells us in his evidence; and h(^ was
not very sure wiiether that was before or after two o'clock.
It is, however, shewn or conceded that it was a few min-
utes after two.

The poll was held on the proper day. The petitioner says
he did not vote, and oives as a reascm that he heard there
wore irre'nilarities. nanielv, the runninu' out of the l)allots
at <Mie polling- place; an.-! that ;noney was g'iven ; and that
the nomination was not correct.

This irrei^ularity in the time of the nomination is the
suhjeet of the first disagreement.

The learned Judges certify that they are agi-eed that tho
proceedings were not begun till shortly after two o'clock,
and that the omission to begin before that hour was ikjI
designed oi' wilful; but that they ditfer in their judgments
as to the ertect of the omission upon the election. The
Chaiici.'llor certifies that in his judgment the whole of the
election proceedings were not, by the omission, rendered
nugatory and null ; and that the election ought not thereby
to 1)0 avoidi'il. And the Chief Justice certifies that in his
judgm'Mit the whole of the election proceedings were, by
the omission, rendered nugatory and null; a;. I that the
election ought thereby to be avoided.

We are not required to pronounce upon this matter of
ditferenco.

The statute 47 Vic. ch. 1- (0.), Nvhicli was passed after the
(kTivery of the judgments u])on which the disagreement,
ar.tse, declares, in si.'ction 4S, that "'it has l)een and is the
policy of the election law, and the intention and meaning
of the several statutes in that behalf, that no election was
or is void for any irregularity on the part of the returning
orticer, unless it appears to the tribunal having cognizance
of the (piestion that the irregularity ati'ected the result of
the election."'

EAST SJMCOE.

337

ation is tlie

ectioii. Tlu'

i,s matter of

Findinff this new law, wliicli seemed to bear upon this
particular dispute, Mr. McCarthy did not press before us
the objiiction on the score of irreijfuhirity.

I think lie acted wisely in puttin^• his case on the stronger
ground of the corrupt practices, notwithstandiiiii; that therr
luay lie room for arj^'uing' that the '' irregularity on the part
of the returning officer," dealt with by section 48, could not
be intended to include an omission such as that now in (jues-
tion, and which is expressly made the^subject of a different
provision in section lo <»f the same statute. That section,
which by section 4') applies only to future elections, adds
to section 88 of the principal Act a sub-section declaring
that "Incase the returning officer, from any uufor<>seen
delay, accident or otherwise, does n;)t open tlu^ election
until after tlie hour named, the election shall not on that
account be invalid, if it appeal's to the tribunal having
cognizance of the question that the delay did not affect
the result of the election."

Here the Legislature apparently treat the prescription of
the time at wiiich cleccion proceedings are to licgin as not
directory only, but so essential that an}' departure from it,
from whatever cause, and without regaivl to its intiuenco
on the election, would vitiate all subsequent proceedings
and render the election void. That C(jnse(juence is miti-
gated by this new sub-section int''o case of the delay with
which it deals; but other mandates of tlie Election Act
niny be violated; and this enactment may legitimately be
pointeil to as justifyi'\g the aj)]»lication to them of the
s.iiue rule of construction in all its rigour. There may
thus lie " ii-reguhu'ities"' enough for section 4<S to cure with-
out its being hehl to cover the casi' before us.

To hold that it applied to this case wijuld involve the
recognition of an unusual sort of legislation. We should
not have the recital which is sometimes made of the
law as it staails, for the purpose of nitroducing an
anienilment of it; but we should have in scetion b") a
rule laid down lor future elections, an<l in section 4S a
ditferent and ex pod fad i> rule apjilied to those which lunl

■4> ftVW-

338

PROVINCIAL KLEfTlON.

taki;ii place and were cornm. jadiee. . \'<'iy |)l<iiu langiuiije
would be re(|uire(l to lead the Court so to iiiter|irot
these two provisions ot" the one statute; and lure
the luuguane creates n>i such necessity. The ' iiieiju-
larity on the part of the Returning OtKcer " of section
4.S, uiiiy or nia\- not be a phrase a})propriate to describe
delay caused \h\ uuforseen causes or accidents, which
is what section 15 spccititally deals with, and what
occurred in the })resent instance. Thei'e need be no
ditiiculty in holding that the two sections deal with
ditiereiit things.

On the question of corru[)t practices the learned Judges
certify that they are agreed that William M. blarvie an
agent of tin- responth'Ut J)rury, Avas guilt\- (-)f the corrupt
j)ractices of bribing John Thornton and Danie^ Regan, and
of hiring the team of Timothy O'Connor to carry voter> t<»
the polls: and that I'atrick Finn, a licenseil tavern kee[)er,
did, on ]iolling day and during polling Ikmhs, in <)tillia,
give li([Uor to the said IlarA ie iind dUe ilel'.eu ; and that
Jeremiah Osser, a licensed tavern keeper, did, on polling
day, at his ta\ern in this electoral district, give litjucr to
poisons therein, and that t)sser was not an agent of l)rury ;
but tliat they ilitU'r as to the agiiicy of !"un,and ;)-> to the
cHect upon the election of the corrupt prac . 'es proved.

The Chancellor holds that Finn was nut jui agent, and
the (. hiei' Justice thiid\s he was. And tlu (."liaiieellor linM-
" tliat said eleetion ought not to be axoiih'd by reason el tlu
corrupt practices liy agents el' tht; respondent. Charles
JDrury, and other illeual ijraetices proved, havini'' leeaid to
the provisions of section l.'i) of tlu> Election Act of (hi-
tario : ' \\hih- tiit Chie-f Justice certitief^ his opinion "that
the ^uid election ought to lie HVoide<l by reiison of the cor-
rupt practices by agents of the respondent, Cliarles Drury,
and other illegal ])ractices prosed lo have been committed
at the said eh'ction. "

The fiist question presented i.s, wliat i.s! the Ls.sue raised
by thest; 'ast statements ?

EAST SIMCOE.

839

Iain langiijacfe
to intc'iiii'ot
c; aiirl Iuto
11 K" ■' inVj^u-
f " of section
tc tn tk'scvibe
idcnts, wliich
li, and wluit
iit'cil L'; no
ift (leal Nvith

■avnt'il Juilnv.s
M. llarvu', an
f tlic corrupt
if' Uci;aii. and
;an y voters t(»
tavern kfcprr,
ii>, in Uiillia,
k'U ; and that
lid, on jiolliiii;'
\\{ lii|\ii'r tu
cnt of 1 )iury ;
and a'i to I he
jcs proved,
an aycnt, and
aiH'i'llor liolds
■ r('a>c>n ni the,
ili'iit. (.'liaiK's
\ ijio' ]t>gard to
n x\ct of ( '11-
ojiiinon ■' tiiat
»n of tlio cor-
liailcs Drury,
>tju conniut tod

i« issue r

ai>ed

To entitle a candidate to the benefit of section 159 it is
in the fii'st j)lace necessary that the corrupt acts connnitted
by the agent wt-re committed without the knowledge and
consent of the candidate. We <lo not know from the certi-
fieato whether the learned Ju l^'es aL;reed or disi^reed on
thi> vital fact. Assunung, as I think we may, that they
really ai^'reeil upon it, though it is omitted from the certifi-
cate, the emjuiry then is were the corrupt acts of such a
"tiltling nature" or such "trifling extent that the result
cannot have been affected, or be reasonably supp.^.-,ed to
ha\ e been ufFected, bv such act or acts, either ahme or in
C'niiiiectiou with other illegal practices at the election."

It was upi)n this (piestion that the difference of opinion
really existed, as we learn from reading tin; judgments
delivered, and from the argument l>efore us.

1 have had occasion rather fre(|Uently to consider the
t)Oaring of sec. lo!) upon the facts of ]»articular cases.

In two eases following the last general election, viz., West
S:ii(<ve, II lite p. lis, (III./ WcUiiiid, (not yet I'eported) I at-
tein[)ted to express some general views which 1 tliought
applicable to it ; but I can still say, as 1 said in the last named
case, that I never ai»])roach the subject of itsapplication with-
out feeling that a task has to be uu<lertaken for the perfor-
mance of which we have a rather indefinite rule lai<l down,
altliuugh, perhaps, as definite a ou(i as could be framed in
vii w of th(.' endless variety of facts to which it has to be
applied. \V(> have to say whether, a eoi-rupt act iiavinj;
bei'u proved to have been conunitted l)y an agent, the
diivet effect of which is to avoid the election, the case is
one in which the trouljle and expen.se of a new election
would be unnece.s.sary and useless; and the criterion is,
if the corrupt act conunitted by the agent was of "such
triding nature." or was of ' such trilling extent, that the
result cannot have l>een ait'eeted, or l»e reasonably sup-
posed to have been aHected by such act, * * either
alone or in couin'ction with other illegal practices at the
eliction. '

P>M)

PROVINCIAL ELKCTIOX.

It may, I think, be taken as (juite clear that the effect
of the corrupt acts or illeijal practices is not to Ite nauyed
by reference to the number of votes which on a scrutiny
they would probably cause to be struck off, or even by
doubling that number on the hypothesis that a vote cast
for one candidate under a corrupt intiuence, mii;ht have
been cast for the oth» r. That woukl no doubt be a proper
consideration ; but the estimate to which it mi<;ht appear
to lead would not be the measure of the intiuence which
for the purjioses of section 159 it would be permissible to
ascribe to the corrupt act. Its nature and its extent
would have to be iudued from considerati(jns arisiu'-' on
the facts of each case, and incapable of being- detinid in
any general formula.

The injportant feature of the present case is, tin- fact
that a series of corrupt pi-actices has been establisheil
against Mr. Harvie, who was not only a prondnent sup-
porter of tl'<' respondent, but was the man most active in
his own exertions and most generally recognized as the
leading actor on behalf of the respondent in the pi-incipal
town of the riding, and who was the treasurer and one of
the leading members of the Kelbrm Association of the
riding. Two acts of bribery, and some other corrupt prac-
tices are Ijrought home to him ; he is certified to have been
a party to the commission by Patrick Finn of another
statutory corrupt act, namely, the selling or giving of
licjuor at his tavern during the hours of polling ; and when
])aniel Kegan applied to Kamsay for whiskey it was
Harvie wlio, by an evasion of the law, procured it for hiui
from a druggist. The l»ribery established against him was
also eHected under a guise, transparent enough, Init never-
theless thrown over the tiansactions with both Regan and
Thornt(.)n.

Reading Ids own evidence I leceive from it the same
impression conveyed by the other witnesses who speak of
him, namely, that he was not likely to hesitate over any-
thing that seemed to him tt) pronnse a vote more for his
candidate from any scruples about breaking the laws
again.st corruj>t practices.

EAST SIMCOt:.

:i4l

I cannot regard an act of bribery committed hy a man
in thepositicjn f)t' Mr. Harvie — and Mliilc pusliinL;' with so
much zeal and .so little le^ard for the law, the interest of
his candidate in the cotitest then going (jn — as of the same
character as (uw isolated act by one of the lank and tile,
who.se position in the party was more obscure, and whose
inliuencr was more linnted, although coming within tli.3
elas.s of auenio under the election law.

Can we say these acts of his were trifling in their nature
(»r tritling in their extent?

I am not dis])Osed to adopt the definition of triflin"
suggested by Mr. McCarthy, as turning on the coinparative
delinquency of one? act or another. We should Kavr to
decide upon a .standard of morals not yet generally rico^-
nized, b^foiv pronouncing bril)ery 'maJmn in st, to the
extent of denying that any act of briltcry could be ealh'il
trifling.

It would, besides, be hard to settle the degrees of' guilt
under our statute which cla.sses under the categoi-y of cor-
rupt practices acts of Avidely different tendencies. Bribery,
it. of course, denounces as a coi'ru})t practice : but it applies
the same stiunia to other acts Avhieh may be free from
all taint of corruption, and incapable of influencing a
vote; as, to take an extreme example, the giving of
a n'lass of beer during the hours of polling bv a tavern
keeper to a stranger to the riding, or a political
opponent who has already voted. Nor does it discrimi-
nate in the im[)osition of its most severe })enalties be-
tween acts to which moral blunu' may be sup])oscd to
attach and othei-s which are only its laaJti jirohihihi . Thus
a candidate i'(|ually expo.ses himself to disipialification l>y
treating a small meeting of his well-to-do friends and sup-
porters in a remote and thiidy settled township, and by
buying the votes of the U»we.st cla.sse.s of a city constitu-
ency.

I allude to these features of our local election law, not
for the purpose of (|uestioning the policy of th<' law. liut,
a.s bearing out, as I think they do. my ofjinion that the

'M'l

PROVINCIAL ELECTION.

Li'f]rislat\n-e usutl the words " tiitlinvj nature" in soctlon 15H,
witliout any direct nit'eretice to the cliaraeter wliich
iii(»ialist>. niay attrilmte to one or the othei of tlu; acts
whicli il el.issfs under the coiiuiion name of "corrupt
))raotices '"; but with reference to soinethini^ which tends
more directly to affect the residt of an eU'ction.

I thiid< we may propi-rly test the iKifurr of an act,
whetlier eorrujjt or lawful, hy cousideriusj; tlie circum-
stances under whicu and the person by whoui it is coin-
niitti'd.

I venturc(| an illustration of this idea in my judt,nuent
in the WcUund CUnf, (not yet i-ejiorted,) which I may here
repeat.

Let us s\ippose the eliarge made and proved to ho that
A. an ai,'ent l>rihed 11 a voter hy the payment of one dol-
lar: and let us suppose that A. is slie\v u to have had with
him a laru'e sum of monev under circumstances which raise
a sLroUij; and imt niu'easonahle suspicion that his oh)e(!t was
til use it in purchasiiii;- votes, one circumstance l)eing the
payment of the dollar to J)., but the I'est of the money not
b'inn' traced on the one hauil, or accounted for on tlie other.
While tlu; <,/■/<'/*/ of this corrupt act, bein^• nieasuri-d by
it-> intlueih'e on the one votei', might l)e tritiiuL;', its ndtare
ii-s line overt act of what appeared, or might reasonably he
assumed, to be an arranged systiMii of ojx'rations, could not
pioperly lie said to be ti'illing.

That seemed to me to be a I'air illustration, and 1 still
thiidv so; and I flunk it puts essentially the case of ^[r.
llarvii' in the contest at Oi'illia.

If it were necessary to find the fact affirmatively, I
should siiy there is evidence to warrant, if not to conqiel,
the conehision that the acts pi'oved are each t)ne an instance
of the s[iirit in which the leading actor on the side of the
respondent was (.'onducting the contest ; and that, viewed ii.
that light, they cannot be said to l)e Irl/Uii;/ lit tin Ir miticre.
AVe may not be aiile tojudgi-of their extent. There is
danger, in attempting to do so, that we may glide luicoii-
seiously into the idea of a serutiny, and try to e>timate
the number of \otes we may bi' aide to say they influenced-

EAST SIMCXIE.

34S

section lofl,
icter wliicli

of tlu' acts
i)f "t'<>rnii)t
wliieh tciuls
1.
r. oi ail act,

the circuin-
111 it is com-
ix V imltjment
1 T may lieie

d to 1)0 that

t of one »iol-

ave had witli

.'s wiiicli raise

lis oltjcct was

ice being the

10 money not

on the other.

iiirasured by

;•, its iHitare

asonfibly be

Ills, could not

I, and 1 still
case, of Mr.

If we entertain the question of e.xtent, we must reniember
that the atlinnative finding must be that they were trilling

ill their e.xtent

\\^' know from tlie eviilenee that in one case, if not more,
ill • iiitbii-nce of tlie brilie was not contined to the person
hii'u'd, lor Thornton tells us tliat he went to Harvie in
ci»ii^r(|Ui'iiee of wliat llegan toM him of liis success, and
Ilirvii.' himself speaks of the proposal of one or both of
til '^r iie'ii to influence their friends.

! pay no attention to Thornton's statement that he
Vdti'd for the caiiilidate against whom Ifarvie was working.
Sii -h evitlence is not trustworthy, own if admissible; but
it tends only in the direction of scrutin}-, and so is outside
of ;lie present iii(|uiry.

I aiii of opinion that we cannot hold that the corrupt
acts committed by William M. Harvie were of such trifling
nature ()r were of such trifling extent that the result of
till' (.'lection, which was a majority of -'■] in favour of
Charles Drury, cannot have becMi affected or be reasonably
suuposed to have been affectofl by them ; and that the
ciTiificite to the -Speaker, under sijction ^o of the Contro-
vci ted Elections Act, so far as the matter of disagreement
iiTtill"il to this Court is concerned, should be that Charles
Drury was nit duly returned or elected.

I think the costs of this reference to this Court sh()uld
form part of the costs of the petition, to lie paid as may be
aljudged under sections 1)7 and !)S of tlie Coutn^verted
Kieetioiis Act.

niiatively, 1
t to com[)el.
e an instance
e side of the
It, viewed iii
/III ir iKitiU'e.
it. There is
j;lide micon-
• to e^tilnate
V influenced-

OsLKl!, J. A — This case comes before us under section
■"i7 of th.e Controverted Elections Act, R. S. (). eh. I I, the
learned trial Judge^s having dilfenMl in their judgments as
to the etl'ect u})on the election of certain corrupt practices
proved to have been committeil by one Harvie. They also
disagreed as to whether one Fiini was an agent of the
ri'<pc_»iident ; and on some other points of considerable iin-
poriance which have not been pressed and are not necessary
til be noticed.

4-i— VOL I E.c.

344

PROVINCIAL ELECTION.

I think Finn'.s af^cncy was not niailc out for tlie roasons
mentioned in tlie jud^inent of the C'liancellor.

Tlie case turns upon the corrupt practices jirovtil t'>
have been conniiited by Harvie.

Tlio respondent's majority was 21 on a total poll of 2^00
or 2000 votes.

Ilai'vie was not merely an influential supporter and
agent of tlie respondent. He Mas the chief executive
officer or socr<^tary of the paity association for the ridiuLr;
a delegate to the convention at which the res})()ndi'iit
was nominated, and one of the active organizers and man-
agers of the election contest. He is proved to lia\e liciii
guilty of two acts of bribciy by gifts of monej- under the
guise of loans as to which the Chancellor say,> : " the jirc-
tence of a loan is of the flimsiest texture, thrcjugli which
the transaction is plainly manifV'st;" and theleai'ne<l t'hitt"
Justice : " tluit it was too thin a veil to conceal the
true and corrupt nature of the tran.saction." He was aho
proved to have committed the further corrupt practice of
paying; one Connor !i5o for the use of his team on ]iolling
day.

These corrupt acts having been proverl, the election is
2'>rima facie i\\{m\vi\ bythe iaiSth section of the Election
Act, unless the respondent can satisfy us that it ought to
be upheld under .section 1")!).

Tliat section is a short one, but in the opinion ot eveiy
Judge who has had occasion to consider it, a veiy eml>ar-

ravssnig one,

Tlie preamble declares that its object is " To prevent the
expen.se and trouble of new elections when unnecessary
and u.seless." It then proceeds : " In case of a corrupt act
or acts being committed by an agent without the knowledge
and consent of a candidate, if the corrupt act or acts was
or were of such trifling nature, oi- was or were of such
trifling extent, that the result cannot have been afiected,
or be reasonal)Iy supposed to have been affecteil, by such
act or acts, eitlier alone or in connection with other illegal
practices at the election, such corrupt act or acts shall nut
avoid the election."

KAST SIMCOE,

.•}-t.)

1" the reasDiifi
cs pluvod h)
1 poll of 2S0()
ipportci- Jtnd

iot" CXcCMltivc

I' tlic riding;

L' lVSj)()lldc'Ilt

;er.s and iiiun-
to liavi' liccii
L'V under the
,'.>: " tlie jire-
rougli wlucli
earned ( 'Inct'
conceal tiic
He was also
ot practice of
^ni (in ]»olliny

10 election is
the Eleetinii
t it oiiuht to

ion ot (.'vei'v
veiy endiar-

) prevent the

unnecessary

I corrupt act

le knowledge

t i)V acts was

\-ere of such

)een atiected,

L'ted, hy such

other illegal

lets sliall nob

I think the secti(^n is capaMt' of a hiond yt-t fair con-
struction, hy which the standing menace it presents to tin;
jiiirity of elections may he minimi/.i'd ; though a narrower
view of it may he taken; and tlie avcjidance of an election
inay bo made practically to dejieiid np'in the nundier of
votes actually proved to have lieen aH'ectech

It cannot lie denied that hriheiy is a corrujit junetiee
which the section permits of lieing condoned. The ^egi■^-
lature has chosen to put it on the same ]ilane in thi>^ and
dtlici" respects with otlier acts, which, thoiigii called corrn]»t
jiractices, are not7/(a/a in m. Dut the (Jourt in c(jnsiderlng
whether a corrupt act is trifling in its nature or extent,
cannot lose sight <if the distinction, and will heai- in
mind that hriliery has always heeii deenieil the he;id
and front of election oM'ences : that its intlueiice is liy
110 means necessaiily limited to the particular iiidi\ idu d
lirilied: and that its foinis are in a hinh deeiee I'roteiin and
ditlicidt to trace.

1 think it was not intended that anything like a scrutiiy
(iflirilied or corrupted votes should be entered ujioii or
a cmint of corrupt practices. One corrui)t act will nvoid
the election, and that act may hav( been of such a char-
actei', or committed in such circumstances, or by sueli an
agent, as to rai.se the <ioubt whether tliose who are respon-
sible for the management of the election, \\ere tiying to
coniluct it iiurelv. An act of that kind cannot be trifling
in its nature, and must be looked at, apart fnnn its etiect
upon the single vote.

The position which theliribur occupies with relatit-n to
the candidate and the conduct of the campaign, appears to
me, with great respect for those who hold the ojiposite
view, to lie a matter of the first imjiortance in guaging
the nature or extent of the corrupt act. I will jiot
attempt to define what acts of bribery aiv. ^^since some it
seems there may be,) trifling in their nature and extent.
1 leave each ca.se to lie dispo.sed of u[ioii its (iwn circitui-
stances as it arises. But, to use an illustration : what com-
Jiarison can there be between a delil»erate bi'ibc of 8 1 or

.'Ud

rUOVlXCIAL KLECTION.

J?o o'ivon l)y tlie chief proniDtoror inana!:,'or of the oloction
to a iK'ody voter, ami his day's \vai;t' >,m\('h hy an employer^
toclmically perhajts an •i;^f('i»t, to liis hiretl man ;" It will
bo said that cacli is an isc^lated case and reproscnts only
one lii'ilicd vote. l)Ut tliat is not so. Thv latter is couj-
parativeU' Venial : hut the i'onurr soon heeonies notice to
e\( ly man who is willini; to sell his vote, tliat money may
jxc-^iiily he olitained for it. Brihery cannot Justly lie
des(;rihed as tritlini;' in its nature which proclaims to tlic
corrnprihle ])ortion of the electorate tliat the mana<fors of
the election arc willinuf to tiallic in corruj)tion.

< )r ai^'ain, suppose a case where a single act of hrihcry is
slu uii to have been committed liy the holder of an election
fund, and the dis[)osition of the rest of the fund is not
nceiiuntcil for. It may in a sense he said truly enouLdi that
tlie result is not affected hy the single vote, but the nature
of an act committed in such circ^umstanees, even when but
one lias been proved, renilers it improbable that it was of
an isolated character ; and, when \\'>i lind it repeated, it be-
comes extremely <litHciilt to believe that corruption stopped
there, and that the result of the election may not thus
ha\e lieeii atfccted by an act or acts which shew a williiiLf-
iiess to bribe. When there is a larei' majority, and the evi-
dence discloses but a few corrupt practices, the inference
may be coe'i/nt that the circle of corruption was not wide
enoun-h to embrace it ; but with so narrow a majority as
we have in the present instance I think it impossible to
say that "the result " of the election "ciiiinot have lieen
iili'ected or he reasonably supposed to have been atfected,"
by the three corrupt acts pi-oved substantially. Therefore
1 .ig-ree with the view wliich ('hief Justice Cameron has
c.\[)ressed as to the proper construction and application of
section l'>!).

1 have considered only the corru[)t prat-tices with which
Harvie is chargeil, as they, 1 think, are sufficient to dispose
■of the case.

I presume that the mode of disposing- of this matter,
so far as thi-^ Court is conceniei] must- be taken to

EAST SIMCOR

:U7

lie ,s('ttl('<l li\ the i|fci>ii)ii in tlic W'ln/ Xi>rlh nwhrflitmi
Vi\st\ lnit as tlir (jiicst ion lias Imcii ai;ain discusst.'d,
,'in<l that <'a^f lias not lut n rr|i(Mt('(|, ami flic result of
oil!' ndliorinijj to it sfcnis likely to lie that this caso

IllJiy, as that one has heeli, lie lel'l Ululis])Ose(l ol' 1 (le>ir(;

witli «k'f'( rcn<'e to sav that, in ni\ oiiini<in. on a I'fo-
cccdinL;' ct' tlii- kind the whole case islxloi-e ns (jn the evi-
dence, and we on^ht to dispose uf it in all respects as on an
appeal from the decision of the trial .Ind^'cs (sec. .'7),
who, having- hcen nnaMe t(» a^ree u[ion a j'epui t oi- other
disposition ol the case, woidd appear to he I'limli ttffi.'nt
althoiieli that iNa(|nesti(n which is no(,anil (\-inniit come,
before Us, liut nnr>t he determined, ii' we dicline jurisdic-
tion. Ity tlie leaineil .liidLii's tlieuiselves, Ave ha\e no
aiitliority to liive them any direction on the suhject : ihcy
are not liouiid hy our opiidon, nor can we enforce it.
The statute provides for ditleicnt modes of disposing-
el' tlie case in dilleiM lit circumstances. If the trial
Judu'es a,eree they dispose of it, and I'eport or certify
to the sp( aker. Kum this decisiiii there may he an
appeal : and then it i.- the jiidL;nient of the Court of
Appeal which is cei'lified to thi' Speakei', Itiit if the
Judiics di.sasjree, thev are to certify siicli ilisaui'eenient.
not to tlie Court of Appial. hut merely to certify it, ami
either party may then liriugthe mattei- before the Court of
Appeal, wdiich ('onrt, in tlisposiiiLi' of it. hav l.y >.ection 57
of It. S. 0. cb. I 1. the same jurisiliction in all respcets a.s
on an appeal from the decision of sueli .Indues.

What is that juiis<lietion '. It is under section ij.'i to
'•ive, on the Avhole case, the same iudument which the
Judees should lia\'e given, nmler section (iti : to review t.lie
decision upon questions of iact as -well as of law, and to
draw such uifei'cnces of laet as the dudee- •-hoidd have
drawn : under section 07 to make amenduuMits atnl icceivo
further evidence; under section ()!• to make such ordei a.s
to cost-i as nuiy seem just, and under section 70 to certify
through their clerk their judgruent to the Speakei.

.'] I-.S

PIIOVINCI.VL KLKcn'IOX.

Tlifi'f is not a syllahlc in tln' Act wliicli luithori/cs tJiK

C'oui't of Appeal to sijinl the cusc liack to tlicni in citlicr

(ivents, nitnviy to certify tin- ()j)iiiion or- decision of that

Coni't. Wo arc ilcalin^' with a sj)ecial uii'l liniiteil jin-is-

• lic'tion, liotli ot tin- .Iii>1l(cs ami of the Conrt ot" Appeal.

The lattei' are expressly autliorizi-d to send tJie case hack

to th(! forniei' nndei- section 71, foi- a new trial to take tlin

cvideiic'c, or additional evidence ; in which event, sid»ject tn

jiMV diiection i;iven liy tin; (>oui't, the case is to he |)r()-

ceeded with as if there had heeii no a|)peal ; hnt when they

arc not proceeding nnd<M' that section I know n(»t where any

anthority is to he found in the Act for disposin;,' of a di.s-

agrcciucnt otln-rwise than as an appeal is dis|»osod of, viz:

by ccrtifyinif the judij;inent of the (Jourt of A|tpeal to tin;

otiieials of the House.

This view is incidentally su|>port(Ml hy section •')(», whi(!]i
enables the .JudL;'es to reserve (questions for the Court of
Appeal, and to postponi! their reporter certitieato until the
deternnnation of such ([ucstitjiis hy tluj ('ourt.

]f we treat the word disagToenient as limited to some
particular chai'ge, taking- othei's as proV(;d or not, as the
Judox' niay ha\e ih'terndned, we dei)ri\-e tlie party of an
ap})eal in lespi.-ct of those chari^^es if we cainiot send the
case hack to the Judi^'cs to dispose of ; while, if we can do
so, we hold that the case may come back to us as often as,
or whenever they ha[)pen to disai^'ree. There may for
instance be a disaL,'reement as to whether the corrupt
practices have been proved : the case comes before thr.
Court on that disagreement, and tliey determine that
sucli practices are pro veil. It tlien goes back to
tlie learneil Judges, and one of tliem tl links the election
.should be avoiiled, while his colleague thinks that
it wouM be saved under section 1")!). It again comes
before the Court of A[)[)eal ; and, if they can agree,
it goes back to the Judges with an intimation tliat .section
151) will iu)t apply. The Ju.lges being at last in a position
to give judgment (^n the case, do so. and set aside the elec-
tion. Or the Judge may disagree as to one or more ini-

KAST SIMCOK.

:U9

portant. clwirjfi's, fimliui; all tlic othm's not. provod.fvml tho
(•u>!(' coiin's up on that ilisaL^rccmiMit to thi' ( 'Oiirt of App(^•ll,
who (li'tci'iiiiiif that the charLfcs in <pi('stit)n wcro not
jii'ovi'il. juiil on the (!as(' L,'o"mj^' l)ack to th(! .FuiIljos tlicy
(hsiiiiss thi^ petition. Until they had done so thero conid
III' no appeal, and now the pctitioiuM' appiwils from thf
(licision on the ground that the other char^n's wrri- provtMJ.
Tlie rosnlt of that aj)poal may l)o that tlu' Conrt sets asldi^
till' oh'ction.

It' wt' consti'uc the section as roferrinLr to a disai,'reeinent
a> to tho dis|)ositioii of the whole, which I huniMy think is
its proper nieaniniLj, we treat the whole cast> as open to
liotli parties irrespective of how any pirticular ehar<f(! may
have l)cen decided just as on an appeal, every point is
(ijM'U to the appellant. The convenieiu'e of such a eouisc^
seems ohvions, and it is an additional i-eason for adoptinn'
the, as it seems to me, <piite adinissihio construction, that
on a disaLi'reement the (Jourt must dispose of tlie whole
ease as upon an appeal.

We should, I think, direct the rejTjistrar of this Court to
fei-tify to the Speaker nnder sections ')7, H'k and 70, tlu>
decision of the Court that the respondent is not duh'
elected or returned, and that the election is \oid.*

The respondent should pay the costs of th(! cause, incln-
<liny those of the present procel'din|^^

JJuiiTox, J. A. — It is not necessary U) refer to tho first
]H)int npon which the l(;arned Jud'^es disaL!;reod, as, ovon
if then! were any doul)t as to the effect of the irregularity^
it lias lieen cured Ity legislation, [ti)

As to the other irregularities on the polling day, both
Judges concur in holding that they <liil not atf'ect the
result of the election, and are cured by sec. 1!)7. These
matters may, thenjfore, in my opiidon, be eliminated
entirely in the consideration of the questions submitted to
us.

*.S(.'e now 48 Vict. cli. 2, sec. 15, (().)
(") 47 Vic. ch. 4, sec. 48 (().) Sue p. .'W(i, wiiore the Bection is set out.

350

PUOVIN([AL ELKCTION.

Both Jndoo.s a«,n'oe, and I concur in their liii-lino', that
Harvic, wlio was shown to have hecn the sccretai-y oF the
Tlcfonn Association, and toliave taken an active ])art in the
eh'etion under such ciicunistances as to make llie vesjion-
dcnt responsililo ibr his acts, did commit two act-, of
Lriher}' hy the pretended loan of two small sums of uHHiy
to voters.

And at tlie heaj'intf, the particuUirs were amendrd sn ns
to add a cliaij^e of liiriiig- a tenm of one Connor on pol-
liiin- day, whieli was also pro\ed — altliouuli tho learned
C'hancelior thiid\s that it was a trap set f(M' the jm ison
applied to. 1 agree with the learmd Chancellor in holdiiio'
that tliere was no evidence ujivn which nny Coui't would
he wai ranted in holdini;' the agency of l-"iiin estahjisheil.

The three acts, howevei', which were estahlished were
,sufH(;ient, apart from section l.')I), to avoid the election;
and tho (questions for our decision is, as io the etl'ect of
that section as applied to the facts of this case.

The tludyes luive not found, as a fact, that the acts in
qnewtion Avere conur.itted without the knowledge or con-
sent of the respondi'ut ; hut it was admitted on the i\y-j.n-
ment, and it is clear u])on the evidence that the respomient
was not IH'ivy to (hem ; and there is no reason to suppose
from a perusal of the evidence that tiie respondent did
not', so far as he was [lersonally concerned, ondeavtmr to
con<luct the election lairly and honestly.

We .should in considi'iing this case bear in mind tlit;
connse that was invariably pnrsuetl by Judges trying
election petitions before the jiassing of the anienibuent.
Ti»ei'e was I may say an uni\ersal consensus that ileetious
ouglit not lightly to be setasitle under su^-h ciicumstances
as 1 have just referred to.

In the ]ycn-)!)i(jf<!n Case, 1 O'M. & II. 44, Baron ilaitin
says: "1 adhere to what Air. Justice ^^ dies said at Litchtield,
that a Judge to upset an election ouglit to be .satisfied
beyond all doubt that the election was void, and that tlu^
return of a member is a serious matter, and not to be
hglitly set aside,"

EAST SIMCOE.

3nl

lin.lin^', tliafc
iitary <>t' tho
(• ]iart in llio
■ tlif iv^] Kin-
two act> of
US (if nii'iuy

ii(1h1i'<1 si I ;\s
niuv oil ]iol-
tl\c Icanifil
>!' tlic i» r.nii
(IV in li(jl(lin(>'
C(.iUlt wduld
■stalilislu'd.
bli^lu'd \vcr(i
the election ;
tlie etH'ct of
case.

at the acts in
ledge or con-
on the aign-
respoiuicnt
n to suppose
Kiudclil did
nuhavdur to

111 mind the

dni> tryiiit;'

ainundnu^nt.

I hat (.lectiuns

Micunistancos

Baron ^lartiu
at Litchfield,
be .satisfied
and that the
1 not to bo

In another case, Taunton Case, 2 O. M. »!i: H. 7o, the same
learned Judge says : " If I am satisfied that the candi-
dates intended honestly to comply -with the law. and
meant to obey it, and that they themselves did no act
contrary to tlie law, * * I ^vill not unseat such persons
iij on the supposed act of an ag«!nt, unless the ;ict is
establislu'd to my entire satisfaction."

Appi'oved by iMr. Justice Alellor, in the Ihimsfahlr Cosf,
2 U'M. & H. lOG. And similar remaiks are made by the
Cldef Justice of the Supreme Court in tlic recent case of
the Berth icr Election Case, 9 S. C. R. 102.

It was a struggle in fact on the part of the Judges not to
avoicl elections unnecessarily wl.en the candidate had
acted honc^stly, although the on'y mejins they pnsses.sed
were to requiic the very strictest evidence of the corrupt
inactice on tlie part of the agent and oi his agency.

And with reference to the evidence, in connection with
the remarks I shall presently have to make, it was always
required to be clear and satisfactory. iS'o amoniit o,' evi-
dence, .said that very eminent Judge, Mr. Justice Willes^
(luglit to induce a judicial tribunal to act upon mein^ suspi-
cion or t(/ imagine the existence of evidence which tlie peti-
tioner nnght have brought forward.

Whether, if when the .Judg(\s have found a corrujit prac-
tice, and the party has to rely upon the en ring effect of
section 15!>, the onus is shifted or not, may admit of sonic
question ; but one thing is clear, that in applying that sec-
tion, and in ct^ming to a conclusion as to whether the acts
weie of sucli a trifling nature and of such triflinrr ext(Mit
duit the result cannot be reasonably supj^osed to have bo'>n
di'ected by them, either alone or in connection with other
illegal practices, the Court is bound to act upon the evi-
dence and upon that alone. There are some persons who
lielieve that every election is cai'iied by means of corrupt
"Cts and illegal jiractices, and who could never be brought
to believe that the rosidt has not been affected. T do not
nijself enteitain so low an estimate of the electoral body ;
but. if 1 did, 1 should be bound not to act u])on that con-
45 — VOL I E.c.

W^^^m

352

I'llOVINClAL ELECTION.

viction, i»nt to ascertain wliotlicr tlie corrupt acts an<l
illeujal pi-actiecs proved were of tlie character aii<l extent
inilieated, and affected tlie result, or mii;ht reasonably
be presumed to do so.

I iigrce that if, as in thu Lincoln Cukc, H. E. ( •. 4!)S,
it were shown that there had been a considerable ex-
pi'iiditiire of money, and that an ayent hal for some
time before the election endeavoured by the expenditure
of money to inlluence the election, and that two corrupt
practices were proved to havo been conunitted by ag;ent
of the ri'spondent with his money and in concert with tin
ai'cnt who had been <niiitv of that corrupt expenditure

O O V 111

I could not as a juror in such a case say that the acts were
of such trifliun- extent that the result miijht not have been
atrecttid.

But how can I as a juror do so here :' The corrupt acts
proved are two in niunber. and isolated acts. Theiv is n(i
other iniprojier expenditure of money shewn ; and these
two acts, thou^^-h committetl by a person who is construc-
tivily an ajj^eiit of the i-espondent, was not an aiient of his'
selection. They are like the otb.er charges referred to in
the Lliicoln Case, where Mr. Justice Patterson held that
they 'lid not, either alone or in connection with the
Belden cases, extend beyond the votes affected, p. 493.

Tliey are precisely such acts as Judges under the old law
would re([uii"e to be proved in the clearest and most con-
elusive manner, having in view the serious ivsults cntaikMl
by them upon the respondent and the constituency.

There was a third act of a ditferent character, an act not
m/ilaniinsc, but made a corrupt practice by the statute,
the hiring of a team by this same agent on polling day.

It was further proved, that, a tavern keei)er, who w.i-
not shown to lu' an agent of the respondent, gave liipior le
this same agent and one Miller on ])olling day during
polling hours, and that one other tavern keeper, not an
agent, had committed a similar offence. There is no jire-
tence that either of these ])raetices were committed with .;
corrupt intent, or with an}' intention. to affect the votes el
any one; and no other illegal })raetices are proved.

EAST SIM <•()[■:.

35a

flow can I say as a jiirui that these were not acts of a
triliin;,' nature, and tritlini;- in extent!* How can I say
tliat they aHecteil or could feu onahly bo presumed to luive
utiected the result ' It is imjjossildo to do so from the
facts thiMiiselves, or from any iut'erniee to ln' jtropeidy
and reasonably drawn from them. On the contrary I am
oompelled to find that the result was not affected, and that
(hi- acts themsel es wei(> precisely of the ciiaracter which
the Le<j:islatin"e it tcaided shoidd not avoiflan election, which
aiij)oared to have been in other r(i,spocts fairly conducted,
'fhe leained Chief Justice of the Connnon Pleas is of
11] iuion that the section is very pernicious in its effect, and
ited to open the door to a i^ood deal of corruption in
I he conduct of elections, and is very fearful that, unless his
••(justruction of tin- (Mf^'ct of that section be adopted, the
Acti'iti'the prevention of corrupt practices would be so
uch waste pajier.

Without shaiing his a]>preliensions T submit with defer-
ence that with that wo have nothing to do, but are bound
to defer to the (>xpr(!ssion of the Legislature, without
indulging in speculation either upon the conse()uences or
corruption to which the law may give rise.

" I cannot tell," says Mi-. Justice Patteson, in 77.' (^aeen
V. Jiisflccx i)f L( (})('' I sli i ,•' 11 A. i*c K. f-f."), I .")7 '■what
conseiiuencts may result iVom the constrr.ction which we
nuist put iipou the statute ; Icit, if mischievous, they must
))e remedied by the Lei^'islaturo."'

And again Lord Abinger lays it down that a Court of
Law ought not to be influenced oi- governed by aiiy notions
i){ hardship. ( 'ases may reipiire legislati .'e interference, but
Judges cannot modify the I'ules of law : li/iodcs v. SinctliurHi,
f .\L .V W. 68.

If there is one term in comiection with the construction
of documents or Acts of Parliament to which I have a
greater aversion than another, it is the nnieh used and still
more greatly abused •>ne of "judicial <lisereti»n ;" an<l I
may be excuse; i for citing the remarks of that very able
jurist, Mr. ^:)c^lJw'lclc, on the subject.

m ii»f »i ' — — '-"^■pi

f ^

354

I'JiOVINCIAL ELECTION.

" Iiidcod," he says, "tlie idea tliat the Judges in adiniui^
tcriii^ tlie written law, can iiioidd it and warp it aeconliuw
to their notions, not of what the legislator said, not even uf
rthat lie meant, hut what in their judginrnt he oni/hi tu
have meant — in other words, aeconling to their own idt;as of
jioliey, wisdom, or expediency — is so oh\ iou^ly untenahif,
that it is (juite ap])arent that it eouM ne\er liasr taktu
I'iso, except at a time when the division lines l)etween tlif
great powers of govenniient were liut feehly di-awit and
their iinportance very impeiiectly undei-sto(jd. *' •■' ft
nuist inevitably he attended hy two great evils. Itgivt;s the
Judiciaiy a power almost ai'hitrai}', and which ('aiuiot fail
to be abused, and it leads to unbounded carelessness in tin-
matter oi' legislation :'" St<l;/>iitk on the Construction et"
Statutes, 2nd ed., p. :^G-"».

I cannot help I'eeling tliat the learned Judge has fall ii
into this errtir in construing this enactment ; and that I
may not l»e supposed to have nasinterjireted his meaning, I
quote his words :

''I am bound to hold in gi\ing a just inLei-pretation to
sections loJS and L")'*, when it is established that a reeog-
niy.ed, imp(jitant, ami intluential agent is pi'oved to havt
comnntted one or more deliberate acts of lu-ibory, the can-
didate cannot retain his seat though the votes shewn in
have been aflected thereby might be struck off without
putting the candidate in a ndnoiity. In the present casr
the respondent was the candidate oi the lleforui Associa-
tion, he in otic sense in tlie manauement of the eleetioii.
was more their agt.nt tlian their principal, ;uid Mr. IJarvie,
the secretary of the association, was. according to the evi-
dence, one of the most active mendters (.>f the orgauizatior.
the counsellor and referee, so to speak, of the President
To perndt, tlurei'ore, corrupt jiractices c<.>uimitted by him
to have le.^s foire than if they had been conunitted by the
candidate himself upon the election, wouhi be establishing
a most dangerous precedent, whicli, if it must be estal)-
li.shed, its creation will be a duty devolving upon those
who have a right to review and overrule my judgment."

KAST SIMCOE.

355

Juiln'cs in ailinini>-
1 warp it aeconliiio
ir said, not even uf
oiiiciit lie oa>/hf t'l
J their own ideas of
bvioiisly unteiialilf,

nt'\rr lia\t' taken
1 lines l)et\\'eeu the

feelily drawiK am!
lerstood. * ■■ it
t evils. It givi's til''
I whieh eiiiiiiot I'ail
1 caix'le.i-iness in tlif
he Construction <<(

I'd Judgt: lias fall 'ii
•tnicnt ; and tliat I
reted liis meaning. I

>t interpivtation to
li>lieil that u reci'ij-
t is proved to liavc
of bribery, the can-
the votes shewn in
struek otV without
111 the present ease
he llet'orni Assoeia-
i-nt (»t; tlio eleetion.
pal, anil Mr. Harvie,
i;e(,)rdiiig to the t'vi-
ot" the organizatiori.
k, of the President,
eoiiimitted l>y hini:
11 coinmitted hy the
ould be estahiisliinj;-
it must be estab-
volving upon thost'
le my judgment."

T may presently have to refer to this language a.s not
being fully warrant(!d by the evidence, so far as it jirofesses
to deal with Mr. llai'vie as a reeoijnizer.' n<rent, or as havin<^'
ill this resjiect acted as an offieial of the association. In dis-
liiirsing their moneys he was an agent undoubtedly, but
not an agent of the respondent's selection; but I can draw
no other meaning from the Judge's language than that as
trie single corrupt practice^ committed by the candidite
necessarily avoids the election, the same result tnust follow
ill all cases where the agent is the secretary of an associa-
tion which biings out the candidate.

T do not think that that view of the law is generally
acquiesced in ; ajid should the Legislature ever adopt such
a law it would be reasonable that the matter should be
carried a step further and the agent made the respondent
and responsible for the costs, the candidate being only a
tnnnal party with the view t(^ the seat being vacated.

That the leained Judge takes a very extreme view of
tliis, and does not interpret and expound it, as in my
liumlile judgment, enactments ought to be expounded, is
manifest from the views he expressed in another case now
before us.

Tht learned Judges in that case agreed only upon one
act of bribery. The learned Chief Justice, it istrue, found one
(jther act proved, but the Chancellor held that thiu'c was
no evidence of agency. All the other charges were
attempted to be estal)lished by evidence of so unsatisfac-
tory a character that the Chief Justice felt bound to give
till? respondent the benefit of the doulit : and the Chancel-
lor held them not proved.

But, though the respondent liad made the letiirn of his
election expenses, as required by the election law, the
learned Juilge was of opinion that the form of the return
was not in conformity with it • that the' [i.'isonal ex])enses
should have been returned more in detail ; and ' from the
want of obsei'vance b}^ him of this recpiirement of the
statute." — I (|Uote from the beamed Judge's judgment —
nnd his failure to procure the attendance of a witues.s,

356

PROVINCIAL ELECTION.

whose aUendanoc it was not ol)Iigatoiy upon liini to pro-
ilucc, tlie learned .Tudye refused, as lie expressed it, to
extcaid to liiiii the henelit of section Ki'J. In other woids
he unseated th(! e;tnilidato because he had not niado tlx;
return o his election expenses in the form in which the
learned J idgo thought it should be niii<lc.

But with gieat deference 1 think tliis is an entire mis-
oonception ot" the section wluch vests no such discretion in
the Judge.

Under the lOlst section, if a candidate himself is found
guilty (jf a corrupt practice, his election liecomes ipso facto
void, and he liiniself <lis(iualiHed.

Section 102 enables the Court to relieve him from the
dis(jualification, if he satisfies the (Jourt of three things.

In the Munkoka and Farry Sound Case, ante p. 197,
tlie corrupt practice brought home to th.e candidate was of
a very trivial natui'e ; but he was unablt; to satisfy the
Judges that tried the case that he had established one or
more of these three matters which were necessary in order
to obtain relief.

This enactment is very ditierent. Section loN provides
that any conupt [)ractice connnitted by an agent shall
avoid an election except in cases coming within section loO,
which I have already quoted. We are bomid to place a
fair and reasonable construction upon that section, if it is
intelligible ; and 1 confess I do not in the prt sent case see
the difiiculty of construing it that has been suggested.

1 can perfectly well understand that when it is shewn
that large sums of money liave been expemled by an agent
or by a,» asooeiation acting in the interest of the candidate,
of which no . atisfaetory account is given, and one or two
acts of bribery are shewn to have been connnitted by that
agent or association, and especially in cases wliere the
majority is not large, there may be very great dirficulty in
the Judge finding that the result may not liave been affected.
It la fsuthcient to sav that that is not this case. There is
no evidence of any large sums in the hands or under the
control of this association. Of the sum sul iscribed bv some

EAST SIMCOE,

f).

\ bim to pro-
-)ress(Ml it, to
I other words

not llliulo tll(!

ill which the

in entire inis-
1 iliscretioii in

uself is fouiiil
lues v'/>.so facia

liiin from the
ireo things.
<(', (inte p. lit?,
idiilate was of
to satisfy the
blished one or
■ssary in ord(;r

I 158 provides
n utient shall
in section 15'J,
md to place a
section, if it is
•r^ent case sue
uiii'iiested.
,'11 it is shewn
d by an agent
the candidate,
nd one or two
uitted by that
es where the
it dirficulty in
ijeen aHected.
;ase. There is
s or under the
iil>ed by some

individuals, which was insignificant in amount and whicli
is not shewn to have been received, a very large j)roportion
was shewn to hiive been paid away in legitimate expense>^.
Mr. Harvie was examined and (K'liies any other t'xpendi-
ture, and was believed b}' the Chancellor ; and, in this as in
(ivery other case, every presumption must he made in favor
of innocence. Of the numerous charges preferred, nearly
[(H) in mnnber, these three only were proved, and these are
Mcts of a volunteer" not an agent selected or diosen by the
c'.indldate, but of a man who appears to have shewn more
;:eal than discretion in his manau'ement of the duties he.
undertook.

We are now called upon to <haw twc* very forced
iiiterences Mithout any evidence that would ])roperly lead
to such inferences : the first, that the i«ssociation were
parties to tlie two sill^- acts of tlie person who tilled the
position of tlieir secretaiy ; the other, tliat the biii> y
was not confined to these two acts and that the association
were parties to other acts, of which no proof has Ikhmi
given, or offered or sugfgested. Upon no otlier theory can it
he inferreil tliat the acts were not of trifling extent, exce|)t
that tliey wore acts of an association winch by reason of
its extensive ramifications, had the means of bribc^ry. In
other words we are called uj)on to fix the gentlemen con-
stituting this association with fraudulent and corrupt
conduct witliout evidence of it. For myself, I must (h)cline
to draw such inferences, more especially in a case where
we are called upon to give effect to an enactment liaving
for its object the saving of certain elections and preventing
them being avoided upon light and trifling grounds.

1 have taken the trouble to read over not oidy the
pas.sages to which onr attention was called, but the wdiole
evidence, which satisfies me not onl}' that the candi<lato
(lid his best to conduct the election fairly and honestly, but
that the election, so far tts we can gather from the evich'nee,
was, with the exceptioii I havt; refi'rreil to, remarkalily
free from corruiit acts and illegal practices of all kinds.
Under those circumstances it wouhl not be .surprisin- if

ppp

558

PROVINCIAL KLEOTION.

the ^'00(1 scns'j of tin; constitiitoncy revolted ajj^aiiHt tins,
intort'erence with their ri^lits, ami that tlui result of a new
election would bo to show that the avoidinj^ of tiie present
one was in the words of tiie Act of Parliaruent useless ami
uniiecessaiy.

I concur in tlie able, ])ractical, and, if T may V)(> alloweij
to say so, well reasoned jnil^uii'ut of the Chancellor, an^i
iitn of opinion that it should be atlirnied.

<;. h\ u.

HOUTU IIKNFUKW.

Sfii)

SOUTH IlENMJiaV.

PRO r INC/ A L ELKCTION.

BeI'OUK THK TOUIIT OF AlM'KAL.

Present: Mn. CuiKK JusTicK Hacarty, Mr, Justice

Patteusox, Mr. Justum-: Osler, and Mi;.

Justice Morrison.

-loHN Harvey, Petltione)-, and John Francis Bowmng,

Respondent.

Toronto, NnveuOwr 24, 1884.
Dtceiiiber 18, 1884.

'ilnii Art /.'. .V. O. (•/(. l(),s(r.'<. /',4, ICl, lU2—C(mtrovcrtril Ehclioii Art,
I'. S'. <). eh. II, Hi'C. J 'iiih-scc. <;, si'c. .lS—<''irni/)f Acf—///f'int Ait—
/'(ifliHCittii (it I'uli'r'tt IraiHlliiiii i .ctwiinui—l'oncnrri n( liinluii) — I tUqiinliji-
rafion, nmornl of—fiilroM/xi-fiiK Acl—'ii' Vir. dt. 4, ■'<•'■<'• -i''^ (O.) —
I'< f'axal to aii\u-il Kf(U to miiioriti/ randiilat.i;.

A |)iiiviiici;il eK'otioii trial wasliolil in ISS;?, hcfon; ("aintMoii, .1., ami Royil ,
I '., who mule separate rcjiorts agreeing in voidiiiL^ the; electidii uijiKt
li, S. (). oil. 10, si.'c. Kil, Ity roasoii of respouduiit p lyini; or consenting
to viio payment of tlie travelling expenses of certain voters to convey
them to the ])oll ; Imt iliffering in their jndgments as to whether the
lospondent was guilty thereby of a corrupt i)ractice under said sec. 1(>I.
("amkkon, .]., reimrted tliat resin>ndent w.is proved I'uilty of said
(■iirru|)t jiraetice , and R'ivk, C, reported that the said respomhuit
committed an illegal act under sec. l.")4 in sanetinuing sncii payment,
liut witliout any corrupt intent, and in ignorance, wliich was involunt iry
and excusahle, under a belief tiiat as long as h(! diil not personally Itear
or pay the said expenses it was not illegal, ami undia- the fullest belief
that the said voters were bound or were willing to rep ly the said
expenses or allow them to be deducted from their wages. A subseijueiit
election took place on IStli .Jaiuiiry, ISSl, wlijn rei]> >n lent wis
i.'leeted. A petition was tiled attacking his election on tlie groiiml of
the [)rior disi|ualiticition of the respondent.

//''/, [I'ai'ti'.ijsom, .J. a., dissmtiug] aiiirming t)ie judgment of tiie trial
•ludges, Bl'rton", .J. a., and (JAt/r, .1., that the finding that the respon-
diMit was giiilty i>f a cirrupt pr i;tic ; wis C')rr,'ct ; an 1 th it h ; was
therefore personally disijualitied ; and as tliere was not a conoiirreiit

4G — VOL I K.(\*

II flLi ' I iiq

SCO

I'HOVlNi lAI, I'.rjK HON.

finding tliat he (•.•iinc m itliin tin- rtliiviiij,' clause of .sec. Mi'J the ili.,
•lUiililir.itioii wiiH not tcniovi'd ; ami thiit the iiincnilin;; Act 47 \'ic. di.
♦, n»H!. 4.S ((».), which was |)jihhuiI oil '_'.') March. l.SSl, iliil not a|)i)ly Id
thin cHHC.

/'f r Omik.k, ,1. A., One joint r4ii(iit of tliilriiil .liidwi., uiiilcr thi^ hanos
of lioth is lint <'ssciili;il ; liiit there may ))(; two .separate re|)ort« emh
llllilel' tile h.'iliil of olM' of tile .lliili;eM ; lillt

ijiiilr< whether the eeitiliiate iinder .sec. )>.') of the result ot tlii^ tri.il
should lie joint ; this, however, was not now open to the re.s|ioiideiit, for
\>y hi.H liecoiiiiiig a candidate at the auh.se()iiciit election lie iiiii.Ht ho
taken to have admitted that the foiiiier tUction wua on ttoiiiu ground or
other regularly net aNide.

Hiiil, on the evidence, the trial .Indues liavinj,' refused to award the .scat to
the defeated eaiulidatc, that the Court in appeal would not interfere.

Tins was an }ij)|ital by the icsiiondt'iit rnnii tlif ju<lg-
nicnt of tilt! tiial Jndoe.s (U'livcifd hciein on .Septt'inboc
12th, LSIS4, \v\M)Yiw\aiitv y. 70, where tlu' fact.s arc fully
.set out.

McCartliii, (^. C, and ^1. A'. Cveclmau, h>v the |irtitioiiei-.
Jicthune, i^. C, and WiUuini Jolmslon, ior tht; respon-
dent.

Deconihei- 1<S, 18N4. Haoahtv, C. J. (). — Three points
seem presenti'd I'or our C()))sideration on this appeal :

1. Ah to whether the respondent was Ity the trial Judges
at the previous election declared guilty of a coirupt or
illegal practice involving as a legal con.setjuence a personal
disqualitieation ?

2. If so, has the Act of la.st ses.sion saved him from such
conso(iuenco ?

3. If disqualified, is the minority candidate entitled to
tho seat ?

As to the first, the trial Judges were tho Chancellor and
Chief Justic(! Cameron. They made .separate reports. They
agreed in avoiding the election, with costs to he paid by
tlie respondent.

The Chief Justice held that he was guilty of the corru|>t
practice under section 161 of R. S. 0. eh. 10. in paying or

HOKTH HKNl'UENV.

'MU

him from .suoli

ate entitled to

(•(>i\fw>ntinr:^ to the payment of the tmvellinjr expenses of
(rertaiii votns to eon\»'y them to the ])oll.

The leunied ( !h»incellor repiU'tiMl (after iiyiiMMiiy to avoi<l
the election, Xrc.) as follows: "And in further [)iiisiiaiiee
i)f the said Aet, \ certify that we, the said JmlLres, dillricd
ill our jud|Lfments as to whctlicr tlic said caudidatc, tin?
rcsjMmilent, was j^uilty oi a coriMipt praelicf under srctiou
Kil of the Klcetion Aet. And I, tin; said .lohn Alexandt-r
Hoyd, for myself, certify that the said respondent eom-
iiiitted an iih'iral act under sec. 1 04 in sanetioniiiy' the
jinyment of voters' travelliuj,^ expenses at stich election, hut
without any coi'riipt intent and in ii^norauce, wdiich was
involuntary and excusahle, under a In-Jief that so long as
he did not persoruilly bear or [>ay the said ex|tenses it was
not illej^al ; ami under the tuither lielicf that the siiid
\oters were hoiuid or were willine; to re|tiiy tiie sai I
expenses, or to allow them to he de(hu-(eil iVom tliejr

waives.

It is here certifieil iu (jfl'ect that I'espondent, 'conimitted
an ill(><zal act inidor .sec. l')4 ; and then it is certitied in
effect that he was entitled to the henetit of the l(J2nd section
as havinj;' no corrupt intent, and in exeusahlo ignorance, and
to have honestly nesired and endeavoured to have a pure
election.

Had both Judges joined in thus according to him tho
henefit of this excusing section, it would of course liave,
relieved him from any perstmal conse(juences.

Had theie been no such section as 102, the dis(|ualitica-
tion woidd aiise sis soon as the Judges found the i-espondent
guilty of an illegal act under sec. 104, in sanctioning the
payment of voters' travelling expenses.

This section declares its violation to be an illegal act.
and the inteipretation sec. 2, sub-sec I I, declares a corrui)t
practice to nicfin " bribery, treating and undue influence
* * and any violation of sees. l;"il, 154 and 15G," thus bring-
ing the section into the same construction as if it contained
the words corrupt as well as illegal act.

IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

I.I

I- |2£ 12.5

^ H^
^

1-25 1 1.4 1 1.6

== II == 1 =s=

►

Photographic

Sciences

Corporation

33 WIST MAIN STRicET

WEBSTER, N.Y. 14580

(716) S72-4S03

■ <

362

PROVINCIAL ELECTION.

pfti'-

■„M* >

It would seem, therefore, that if both Judges had (without
reference to the exculpatory clause 102) simply united in
certifying that respondent committed an illegal act under
sec. 154 in sanctioning the payment of voters' travelling
expenses at such election, the disqualification would attach .

By the Controverted Elections Act, R. S. O. ch. 11, sec.
58, where a corrupt practice is charged, the Judges are to
report (in addition to the certificate as to the due or undue
retum) " whether any corrupt practice has or has not been
proved by or with the knowledge and consent of any can-
didate, an ^ 'Me nature of such corrupt practice." It may be
that a rei; • vi merely stating that the respondent committed
an illtga! acu uiider sec. 154 would suffice, as that section
;s con'-. r<}d t • ^j i.cies of act, as to the conveyance of
\otOi ^. it •:'.,. however, necessary so to «lecide as the
act is describee in both certificates.

It was ui-ged by Mr. Bethune that what the learned
Chancellor adds to his certificate as to the charge shews
that the illegal or corrupt practice was not in fact com-
mitted, especially that it was done, " under the belief that
the voters were bound or were willing to repay the said
expenses or allow them to be deducted from their wages.''

It is not found that such wns the case. The belief that
it was the case, when in fact it was'not, might be an excel-
lent reason for reporting in his favour on the relieving
clause ; but when the fact was otherwise the unfounded
belief could not jirevent the act being illegal.

If the learned Judge found or believed that the voters
were conveyed under such an arrangement then they would
be travelling at their own expense to be paid out of their
Mages, he would then not have foimd that the respondent
had committed this illegal act.

If a statute declared the employment of any voter or
voters to do for hire any work connected with the elec-
tion, and declared such to be a corrupt practice, then, if
the candidate did so employ and pay them^ I cannot think
that he could escape the consequences merely because he
believed tbat they were not voters.

r or
elec-
3n, if
bink

SOUTH RENFREW.

363

I agree with the view expressed by my brother Btirton,
art to the marked distinction between the case of Grant v.
Overseers of Piujha'ni, 3 C. P. D, 80, and that before us.
I fully adopt his reasoning on this.

The Imperial Act re(iuired it to be found b}' the report
that bribery had l)een committed with the knowledge and
consent of the cnndidate.

The report merely stated that he was guilty of a corrupt
practice within the meaning of the Act. It then proceeds
to state what it consisted of, viz., the promise to certain
voters of an enteitainment of meat and drink in the event
of his election, with a view to induce them to vote for such
candidate.

My learned brother has quoted from the judgment
where it was held that the repoit did not find in the
words of the statute that a coirunt practice had been
committtid with the knowledjje aiul consent of the can-
ilidate, nor were words used " which unaujbiguously and
necessarily involved a finding according to the Act of
Parliament."

Again, at p. 8G, and that the woids " did not necessarily
alone imply personal bribery or bribery by agents with
his knowledge and consent."

I feel constrained to hoM that the reports of the two

loarned Judges clearly hold that the respoinlont committed

an act which the legislature designates as a corrupt act ;

and tltftt the result must be that he was thereby personally

(liscpialitied.

The learned Judges did not concur in findinjj that he
came within the relieving clause l(i2 ; and therefore the
(lis(|ualification is not removed.

We have, secondly, to consider the effect of the Act of lant
st>ssion (a). The language of the 4tSth section is singularly
infelicitous, as has been very clearly pointed out in the
judgments below. They are so very full on this point that
it does not seem recessary to travel over the same ground.
It is stated to be, and always to have been the law, " that

(a) 47 Vio. ch. 4 (O.).

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ill

i^ji

i^'i

964

PROVINCIAL ELECTION.

no candidate is disqualitied or subject to any disability or
penalty for any corrupt practice or alleged corrupt prac-
tice without the concurrent judgment to that effect."

Up to tiie passing of this Act no Judge's report declannl
in terms the disquaiiHcation of any candidate.

The electifjn in question had taken place long before tlit-
passing of this Act, and the reports of the trial Judges ot
course contained no ail judication or declaration for or
against such dis(iualification. but merely a fint^" i/^ of a fact
from which such a legal consequence would pioperiy fol-
low. Can we be asked to assume that the loyrislature
intended to declare that a report or reports of trial
Judges, perfectly legal at the time they were made and
clear as to the legal consequence to follow, should be held
inetieetual to be followed by such consecpience, unless some
declaration or adju<lication of disqualification should be
contained therein, which was never heard of jis necess«iry
until the Act so declared it ?

It n)a)^ as Mr. Justice Burton remarks, be held neces-
sary so to declare in any report or reports to be made after
the [.assing of the Act even if the elections had previously
taken place.

We are in effect asked to hold that I'eports legally ma<le
before the passing of the Act, containing, as we hold, mat-
ter legally disqualifying a candidate, are nmde of no legal
efficacy for thatpurj^ose without their containing a wholly
new statement.

We are naturally reminded of the words of Brett, L. J.,
in Bradley v. liatjUx, ,S Q. B. D. 1!)"), at p. 2;{0 : " TIk'
difficulty arises from the fact of Parliament insisting upon
saying that things are what they are not."

I think due effect may be given to this section by apply-
ing its very particular language to future reports of trial
Judges as is suggested in the judgments appealed from; but
I ha'dly like to be held as declaring judicially that future
rejtorts must necessarily contain the new declarat'oi. as it i^
not required ft)r tlie decision of this case.

SOUTH RBNFUEW.

865

When the Act was passed the reports in the first election
hnd b«en long made, and, as it were, had passed into judg-
ment, as a new writ had issued on the vacancy declared by
tlicm, and a new election had, and a petition pending
a<jfainst such new election.

Then comes this legislation. I decline imputing to the
Logisluture — unless I find their intention expressed in lan-
(fuage too clear for dispute — an intention to alter the legal
ertl'ct of former election reports of Judges by requiring the
insertion of some statement not formerly known or re-
(juired by law.

The last clause of the section as to avoiding a new elec-
tion by setting up corrupt acts at a former election, not set
up and proved, and so adjudged by the two Judges at the
former election, does not, I consider, affect this question, in
the view I take in common with the learned trial Judges, of
the legal effect of such former reports.

The remaining question 3, is as to seating the minority
candidate. It is alwaj's an ungracious task thus to
stultify the choice of a large majority of electors-
It is undoubted law that if the Court be satisfied that
notice of dis(|nalificatiori was clearly brought home to
the electors so that they might reasonably know that they
were throwing tJway their votes, they must take the con-
se(|nences. Nor can it be considered that a belief in the
ni»M-exis mce erf the alleged ground of disqualification can
prevent such res\ilt.

Every case of this kind must depend on its own circum-
stances and the nature and extent of the alleged notice. It
is a (piestion of fact to be found by the trial Judges and
tlieir well considered conclusion on the facts before them
in evidence ought not to be interfered with except on very
sure ijrounds.

The (juestion of the sufficiency or insufliiciency of notice
is fully discussed in such cases as licglna v. Mayor of
'lewh'f<I)urij, L. R. 3 Q. B. 629, and Drinlcivater v. Deakin,
L. It. }) C. P. G2G.

It is a (luestion of fact to be found by a jury or the
Judges acting as a juiy.

: !:■

■4

366

PROVINCIAL ELECTION.

■ ., )

1 1 * 1

!>>V J

j;^

It is for them to say on the whole evidence whether Uk;
notice was sufiicien*;.

The safest way is, of course, that recommended, of noti-
fying eveiy elector as he comes for a ballot.

Here the evidence was of posting notices at some of
the |)oll8 ; of agents stating that that they told the per-
sons they met in certtiin localities.

All this was open to the objection, that no such notices
were given in .some localities : that many voters weie
illiterate ; and the written notices were useless to them.

The learned Judges came to the conclusion that thoy
were not justified in finding that they could hold a sufK-
cient number of votes would have been so " thrown away, '
as it is called, a.s to seat the minority candidate.

It is impossible for me to -ay that they have arrived at
a wrong conclusion on this question of fact ; and 1 am ot
opinion that we ought not on such a matter to be astute
to tind reasons for interl'ering with their decision.

I think the respondent's appeal should be dismissed,
with costs.

Tliat of the petitioner should, with like result, be dis-
missed.

Osier, J. A. — An election was held in February, 18.S3,
for the Electoral Division of the South Riding of Renfrew,
at which the respondent was returned as duly elected.
He was afterwards unseated on petition on the ground of
corrupt practices committed by him in paying or ccmsent-
ing to the payment of the travelling expenses of certain
voters. The trial of that petition took place before tln^
Chancellor and Mr. Justice Cameron.

Judgment was delivered on the 19th November, IS.S'J,
and the certificates or repoits of the trial Judges were
transmitted to the clerk of the Legislative Assembly on
the 29th December, 1883. A new election was inmiedi-
ately held on the 11th and and 18th January, 1884, at
which the respondent was again elected. A petition against
that return was filed on the 14th February, 1884, which

HOITTH RKNFRKW.

367

wfis tried before my brothers Gait and Burton on the tiOth
August, 1884. The respondent was again unseated on the
jrround that the result of the t'ornier trial was to disqualify
him from being a candidate, the Judges not having con-
• urredin relieving him from disqualification under • ction
162 of the Election Act.
What we have to determine on this appeal is :

(1) Whether on the reports of the trial Judges upon the
former election petition it was sufficietitly found that a
(ornpt practice had been committed by or with the actual
knowledge or cojisent of the respondent so as to impose
upon him the disabiliticK mentioned in section IGl, the
.Judges not having concurred in relieving him from them
under section 162.

(2) Assuniing that .such disqiialification existed at the
time of the last election, and the filing of the petition in
the present suit, whether it was removed by anything in

The Election Law Amendment Act, 1884," 47 Vic. ch, 4,
(0.) passed on the 2oth M-;ch, 1884.

Mr. Bethune contended ihat there should have been one
jiiint report of the trial oudges upon the former election
ictition, under the hands of both Judges, and th?i.t tliey
liad no authority to make a report and certify separately,
even though they concurred in avoiding the electi(m oi- in
finding that a corruj)t practice had been committed.

I do not think this argument is entitled to prevail. The
Act of 1884, sec. 10, no doubt now expressly requires
(lollowing the English Act of 1883,) that " in case of a
tiiid before two Judges, every certificate and every report
S(iit to the Speaker shall be under the hands of both
Judges;" but as the law .stood when the first petition was
(Jt'termined, I think it is impossible, looking at the loo.se
nnd inaccurate way in which the expressions " report of a
Judge," sec. 158, ch. 10 :" report of the Judge -."section
161, ch. 10: "his or their report," sec. 59, ch. 11:
" Report or reports, (if any) of the Court, Judge or Judges :"
friction 60 : are used, to say that their joint decision under
■section 38, or their finding under section 161, might not be

47 — VOL I KC.

368

PROVINCIAL ELECTION.

'\¥i ,,

I *v

IT **j /

li I

evidenced by two reports, each under the hand of one of
the Judges.

There is more room tc argue that the certificate under
wection 55 of'tlie result of the trial should have been a joint
one under the hands of Vioth Judges. 1 consider, however, that
this objection is not open to the respondent, who by beeom-
inga candidate at the election now in question must betaken
to admit that the former election was on some ground or
other regularly set aside. But whatever view may be taken
as to the certificate, I think the Judges were at liberty to
make separate reports. These reports ought to be read
and taken together. We should not criticise and dissect
them as if they were special pleadings, but should endea-
vour to ascertain what meaidng is fairly attributable to
the language employed.

So reading them what do we find.

The IGlst section of the Election Act provides that "when
it is found b}'^ the report of the Judges * * that any
corrupt practice has been committed, by or with the actual
knowledge or consent of any candidate or at an election,"
certain results shall follow.

The trial Judges at the former election concurred in
avoiding it, and, as appears from their reports, for the same
act, namely, the payment by the respondent of the travelling
expenses of certain voters.

Mr. Justice Cameron certified that he and his colleajrue
differed as to whether the respondent was guilty of a cor-
rupt pi'actice under section 161 ; and I may say here that
I cannot quite agree with an observation in the judgment
of Mr. Justice Burton that the reference to that section is
inaccurate. It is plain that what_is meant is, that they
differed as to whether the respondent w^as guilty of a cor-
rupt practice committed with his actual knowledge and
consent, that is, committed in such a way, or in such
circumstances as section 161 speaks of. The next clause
of the report shews the nature of the corrupt practice, viz.,
the paj'ing, or the consenting to the payment of the travel-
ling expenses of voters. The learjied Judge then certifies

i<- m'

SOUTH RENFREW.

361)

that the respondent was proved j^nilty of such corrupt
|iractico, which is to my mind clearly descrilie<l as one of
those prohiliiti'd l>y .section l^ti of the Election Act.

r now turn to the Chancellor's certiilcHte, which I think
iloscrihes quiti; as distinctly as the former, the ottenco and
its personal character. Ho Hnds that the responilent com-
mitted an illeijal act un<ler section lot-, in sanctioning, which
is equivalent to anthorizinL;, ratifyini^ or confirminij, the
payment of voters' travelling expenses at the electioii, lan-
tfiiago which is (juite inconsistent with the idea that the
offence was coimnitted by an agent or otherwise than with
actual knowledge and consent. The other or e.xcusatoiy
part of his report also shews that he was dealing with a
personal act.

It was useless to try to esca{)e from the consecpience of
Jiat fin lin'jT by callinj; it an illt':'al act, when the law calls
it a corrupt practice ; and so the learned Chancellor felt
wli<m he g;ive eti'ect to it as such by avoiding the election.
H" says, however, that ho differed from his colleague as to
whether the respondent was guilty of a corrupt practice
under, that is — as I have pointed out — within the meaning
of section 10 1. But the other part of his report .shews
that he meant to say that, though compelled to tind the
respondent personally guilty of what the law calls a cor-
ni|)t practice, and therefore to avoid the election, he di«l
not think the disal>ilities attaching to such act under sec-
tion IGl, should be afli.Kod to it, because it was committed
under the circumstances mentioned in section lG(j.

I cannot agree that the respondent is now at liberty to
contend that the expressions niade use of by the learned
Chancellor, in what [ have called the excusatory part of
liis report, are to be looked at as shewing that he was not
in fact guilty of a corrupt act. The judgment or decision
that he wui^ g'lilty f^f it, is still "in full force and unre-
vursed ; " and has been accepted and acted upon by the
legislature and by the respondent.

If the rea.sons triven bv the Chancellor for thinking that
he ought to be relieved from the consequences of the act

370

PROVINCIAL ELECTION.

i; s

1' t?

I •

are to be accepto«l for the purpose of shewing that he had
not really coniniitted it, the jmlginent avoiding the eleetion
was wrong. If the respondent had appealed, it might have
been reveixed ; but on tlie other hand it might luive appeared
from the evidenee tluit the Judgment was right though tin;
reasons assigned for it were wrong or non-existent. So I
think we cannot look at nnytliing wliieli the learned
Chancellor has unnecessarily said about the corrupt prne
tice in his reasons for giving tlie respon<lent the benefit
of section IGG.

I am therefore of opinion, adopting th<' language of Orovp,
J. in Grant \. OrcrwevH oj Poyhinh 3 C. P. D. HO, at p. S.5,
that the reports of the trial Judges at the former election
"unambiguously and necessarily involve a finding, accord-
ing to the statute," that a corrupt practice had been
ecmmitted by or with tlie actual knowledge or consent of
the respondent ; and as they did not concur in relieving liiiii
from the consequences which attacli to .such finding, lie
was in point of law dls(jualifie(l to be a candidate and in-
capable of being elected at the last election.

I think the case of Gruvf v. Orn'»fn\s of Poijham^Biipiii,
is entiiely distinguishable from the present case for the rea-
sons mentioned in the judgment of the learned trial Judges,
and by my lord.

The next question is, whetlur the respondent has betMi
enfranchised by the recent Act.

I agree witJi Mr. Bethune that unless the di.sqnalifica-

tion is nm(»ved as regards the last election, it .still exists

The 48th .section is relied on, but it cannot be said to

have fultilled the professed object of it.s existence, whicli

is, to remove doubts.

It declares that it has been and is the policj" of the
election law, and the intent and meaning of the several
statutes in that behalf, that no candidate is disqualified
for any corrupt practice vf \\A\o\\i the concurrent judgment
to that ej^ect of the two Judges by whom the election pe-
tition is tried.

Is •Ui'i

SOUTH KI::NFKi£W.

871

It is argued tlmt this sliows tliat the Judj^es must pro-
nounce, and shouhl always Jiave done so, a concurront
judgment of dimjualification, and nut merely tind the
e.\istence,&e.,of corrupt praetiee. But the declared intention
and meaning are (|uite repugnant to the language of the
Legislature, for by no statute are the Judges, or either of
them, authorized or recjuired to pnmounce a judgment dis-
(jualifying the candidate. They can only find and report
as to the commission of corru})t practices, and it was always
necessary that they should concur in doing that. This part
i)f the section seems, as Mr. Justice Burton observes, to
have been penned by some one unfamiliar with the existing
state of the election law. The last clause of the section,
which deals with another subject, is more accurately
phrased, and speaks of corrupt acts set up and proved, and
so adjuihjed by the two Juilges as bif law to Involve dis-
(pialiHcation, ice. Section 30, amending section 166, also
shews that what is meant ii a finding as to the acts
charged, not a judgment of dis(iualification. Taken as a
whole, it is impossible to say, particularly as the doubts
intended to be removed are not indicated, that in this respect
the section attributes any other intention and meaning to the
existing statutes than that which their language has hitherto
always been taken to imply — namely, that there must be
a concurrent finding or report that a corrupt practice ha s
been committed.

The respondent is, therefore, not rehabilitated by the
earlier part of the section.

The next clause provides that this, that is, the con-
current judgment of the two Judges, applies to section
102 of the Election Act, and the conditions and cir-
cumstances therein mentioned, as well as to other mat-
ters on which corrupt practices or their consequences
in any waj*^ depend. I do not see how this clause aids the
respondent. The corjcurrent judgment of both Judges
was always necessary, as well to find corrupt practices
proved, as to relieve from their consequences, and here
the Judges did not agree to do the latter. The clause is

372

PnoVINCIAL ELKCTION.

■ f-'

V F-fi

I 1^

III

il!:

;1:r'*

declaratory of the existing Inw, l»ut is ineonsi.' tont
with neetion 29 of tlie same Act, 'vhich oiiuixls hectioii 102
by providing that one Judge may relieve tVoni distfualifi-
cation.

The hiHt clauHc of the section ha.s heen incidentally alhidiil
tofor another purpose : hut 1 refer to it again as it is itjit d
upon as heing specially applicable to tlie respomient.
Reading it with the first part, it declares t/ie law to be tliut
in case of an election being set aside, and u new election
had to tlie same Legislative Assembly — (which is tlie ciise
befoieus, though it occurred before the Act waspassedl— tli«
new election cannot be avoided by setting up corrupt acts
&c. of the candidate in or during tlie former election, or
attecting the same, which were not set up and proved at
the foimer trial and so adjudged by the two Judges or
by the Court of Appeal before the subsequent election, vm
by law to involve such disqualification, &c.

It follows from what has been already said that tliis
clause cannot apply to the respondent as the corrupt prac-
tices lor which the new election has been avoided verc sat
up, and icere so adjudged at the trial, as by law to
involve such disqualification.

It is worth noticing that while this clause is prospective
in its terms, and .speaks of disqualification resulting from
the deci.sion of the Court of Appeal, section 10, sub-sec.
6 of the same Act enacts that there shall be mo ap2)eal
from a decision of the Judges finding that a candidate ha.s
not been guilty of corrupt practices.

I am therefore of opinion that the respondent has not
been enfranchi.sed by the recent Act, and that his appeal
should be dismissed.

Ah regards the petitioner's appeal, I am very much dis-
posed to think that we are in elfect saying that notice ot
di.squalification can only be effectually given by giving it
to each voter as he comes up to the poll, yet looking at
the large majority obtained by the respondent, one ought
to be morally convinced that the notice was brought home
to the knowledge of the voters before venturing to seat
the minority candidate.

ttii

It 31

SOUTH KKNFUKW.

;i7a

I cannot Hay thcru i.s not soino doulit on that point ; and
tliorefor« do not seo my way to ditlVr from tlni vinw taken
by the triulJudges and by the other luenihers of this! 'oiirt.

MoURisuN, J. A., concurred with Ohlku, J.A.

Patteuson, J. A. — The eh'ction which i.s ininiedintely
ill (|ue8tion was in Jiinuiiry, IHH4, the nomination day
lieiiig the eleventh, and the polling day the ei^dit> «;nlh ot
that month. Tlie re.spondent, John Franei Dowliiig,
nteived a majority of the voteM ea.st, and Wu f turn is
attacked upon the ground that at a previous eK ction, held
in Febiuarv, 1883, lor the .same Electoral 1 itiict for t1i<'
^anie Legislative A.s.seudily, at winch hi was h c/indidute,
ho had b..' n guilty of a corrupt practice.

Section IGG of tlie Election Act enacts that "To remove
iloubtH as to the efl'ect, upon suUsequeiit election, of the
avoidance of a prior election held for the name Klectoral
District for the .same Legislative As.sembly, * * si'cli subse
quent election .shall be deemed and ttiken, as resjiects lioth
candidates and voters, to be a new election, in law and in
fact, to all intents and purpo.ses, except as to the personal
acts of the candidates, and the acts of agents of candidates
done with the knowledge and consent of such canditlates."

Section 158 makes an election void (unless saved by
section 159), where it is found upon the report of the
Judges before whom the trial of an election i)etition has
been conducted, "that any corrupt practice has been com-
mitted by any candidate at an election, or by his agent,
whether with or without the actual knowledge and consent
of such candidate ;" and section IGl adds, "that when it is
found by the report of the Judges upon an election
petition that any corrupt practice has been committed by
or with the actual knowledge or con.sent of any candidate
at an election, in addition to hi.s election, if he has been
elected, being void, he Stiall, during eight years next after
the date of his being so found guilty; bi* incapable of being
elected to and sitting in tiic- Legislative As. < nibly, and of

374

rUOVlNCIAL ELECTION.

beinj; entere<l in any voters' list as a voter, and of voting at
any election, and of holdinjf- any office at the the norniiiii-
tion of the Crown or of the Lieutenant Governor in On-
tario, or any munici|)al office."

Tlie ver}' severe penalties tlnis attached to conviction of
" anij corrupt practice." — a term which under the Election
Act of Ontario includes acts which are free from any
intentionnl corruption, and which may be incapable ot"
inflaencin<^ a single vote — may be in some circumstances
averte<l from the candidate by the provisions of section
162. These penalties are, however, something added to tlif
avoidance of the election which is worked by section loS.

For the purpose of the present contest, inasmuch as sec-
tion 1(10 does not enable this respondent to treat the
election of January, 1884, as a new election, the petitiomT
was not driven to rely upon section IGl ; but, if ho was able
by any propin- evidence to bring home to the respondent
a corrupt pi-actice committed at the election in Februaiy
1888, he would have done enough to avoid the present
election; and the curative effect of section 162, which is
addressed only to the ulterior disabilities imposed hy
section 161, would not come in question.

The petitioner has not offered substantive evidence of
the coinmissiim of the alleged corrupt practice, but has
relied upon the certificates and reports jf the rota Judges
before whom the petition ag linst the February election was
trie<l.

The present petitioner was petitioner, and the present
respondent was respondent upon that occasion. Whatever
the rota Judges certified or reported under sections 5")
r«;id 58 of the Controverted Elections Act, R. S. O. cli.
11, may perhaps be rest jwlicatd lietween these parties, so
as to enable the certificates or reports to be used on this
trial as evidence of facts which, under section 158, avoid
an election. That use of them, if admissible, must depend
upon the accident of the parties being the same to both pro-
i'oeditigs, and upon the propriety of regarding the reports
as adjudications between these parties.

l!iliPP«|

SOUTH UENFHEW.

375

The effect given by the statute to tlie report of the
Jinli^es by which a corru|)t practice is found against a
c<in<liflate is, under section 158, to avoid the election to
which the report relates, and under section IGl, to dis-
ci iiality.

The statute does not profess to make the report evidence
tor any other purpose, and, except in a case where, in a
contest respecting a second election for the same Legis-
lative Assembly, it is desired to avoid the second election
]iy a corrupt practice committed at the fii'st, section 162
lion ohsfaiile, a petitioner will seldom, if ever, have any
(iltject in claiming for the report any other effect than that
which section 1 01 exp>.(.;jsly declares it to have.

I do not apprehend that in the present case any such
necessity arises ; but, if it should arise, I should desire to
jflve the matter more consideration before deciding that,
even as between the parties to the petition, the report can
pro|)erly be used for any purpose beyond that dealt with
in sections 101 and 1G2.

The certificates relied upon as evidence were proved by
copies certifio<l by the clerk of the Legislative Assemllj
to whom the originals were addressed. One certificate
was signed by the Chancellor and the other by the present
Chief Justice of the Common Pleas, who as rota Judges,
had tried the petition.

One paragraph, which was the same in each certificate,
was the following : " And in further pursuance of the said
Act, I certify that we, the said Judges, differed in our
jmlgments as hereinafter set forth, although we both
agreed that the said election should be avoided with costs
to be paid by the said John Francis Dowling."

Tliis statement appears to have been acce|)ted as certif}'-
ing, under section 53 of the Controverted Elections Act
the determination of the Judges that " the election was
void," and to have led to the issue of the writ for the
second election ; and no question respecting it arises at
present in any direct way.
48 — VOL I E.c.

^^^^^H^H > J

H^^HAK

' V ^-^

♦r"

> H'

S76

PROVINCIAL ELECTION.

Section 58 requires that " where any charge is made in ai»
election petition of any corrupt practice having been com-
mitted at tlie election to which the petition refers, the
Judges shall, in addition" to the certificate under section
5'), " and at the same time, report in writing to the Speaker
as follows : (a) Whether any corrupt practice has or
has not been proved to have been committed by or with
the knowledge and consent of any and which candidate
at 8i ch election ; and the nature of such corrupt prae-
tice."

This is the report spoken of in sections 158 and IGl
of the Election Act ; and the petitioner has to maintain
tliat, in the documents produced from the office of the
clerk of the Legislative Assembly, the two rota Judges
reported that a corrupt practice had l)een proved to havo
been committed l)y or with the knowledge and consent
of the respondent, and the nature of such corrupt prac-
tice.

There is no report from either of the learned Judges in
the words of the statute ; but it is contended on the part of
the petitioner, that each of them has certified fiomething
which amounts to a report that a corrupt practice had
been proved to have been connnitted by or with the knowl-
edged and consent of the respondent.

I do not suppose it to be essential, in order to couiply

vrith the direction to rep<jrt in writing to the Speaker, that

the word " report" shall be employed. Any statement in

writing of the necessaiy facts, will, of course, suffice, and

will be a report. Nor am I prepared, at present, to assent

to the suggestion made bv counsel that, under the law as

it stood when these certificates were given, the recjuire-

nient that the Judges should report, or should certify,

could only be satisfied by their making a joint report and

not two separate reports. But while the joint finding, to

which alone the statute gives any efl'ect may, as I assume,

be evidenced by two separate reports, it ought to clearly

appear, from the reports themselves, before they are taken

to shew a joint finding, that they both relate to the same

charge or the same state of facts.

SOUTH RENFREW.

377

I shall now notice the reports separately, first remarking
that in neither of them is it stated that the net or acts
tor which the election was declared void are those about
which the present contest has arisen ; and we aie of course
aware that the avoidance of an election does not of neces-
sity imply the commission of any coriupt act by a candi-
ilateor by any one else with his knowledge or consent.

The statement of the learned Chancellor is as follows :

" And, in further pursuance of the said Act, I certify
that we, the said Judges, diflered in our judgment as to
whether the said candidate, the respondent, was guilty
of a corrupt practice under section 101 of the Elec-
tion Act. And I, the said John Alexander Boyd, foi*
myself, certify that the said respondent committed an
illegal act under section 154, in sanctioning the payment
of voters' travelling expenses at such election, but without
any corrupt intent, and in ignorance, which was involun-
tary and excusable, under a belief tliat, so long as he did
not personally bear or pay the said expenses, it was not
illegal ; and under the further belief that the said voteis
were bound or were willing to repay the said expenses, or
allow them to be deducted from their wages.

" And I fuither certify that the evidence showed the
candidate to have honestly desired, and in good faith
endeavoured, as far as he coukl, to have the said election
conducted according to law."

Is this an adjudication of the offence in respect of which
the very severe penalties of section 161 are incurred ?

It is not a question of what it is possible to infer, and
oven reasonably to infei", from the language as we lead
it, may have been the opinion of the learned Chancellor.
Different minds may draw diflerent inferences ; Imt, apart
from that, the disqualification results not from the Judge's
opinion but from his report.

The operative words here are "that the .said respondent
committed an illegal act under section 154, in sanctioning
the payment of voters' travelling expenses at such elec-
tion."

'■ ■ t a

iii i

1!l

i'^

iW'-

I ll'i li

'Pi

I i";

If »■:

37H

PROVINCIAL ELECTION.

Section 154 declares that " the hiring or promising to pay
or paying for any horse, team, carriage, cab, or other vehicle
by any candidate, or by any person on his behalf, to con-
vey voters to or near or from the poll, or from the neigh-
boi-hood thereof, at any election, or the payment by any
candidate, or by any person on his behalf, of the travelling
and other expenses of any voter in going to oi returniiiir
from any election, shall be illegal acts ; and the person so
offending shall thereby incur a penalty of SlOO." And it
further forbids under the same penalty, in addition to dis-
qualification from voting at the election, the hiring of any
horse, &;c., by any elector for any candidate or any agent
of a candidate, for the purpose of conveying voters to or
from the polling places. All these acts, under both
blanches of the sectitm, come under the definition of "coi-
ru})t practices' in the interpretation clause.

This certificate does not, in terms, find a cori'upt practice
proved, nor does it find the acts which are described in
either branch of the section. The second branch of the
riection cannot be surmised to have been in the contempla-
tion of the learned Chancellor; because what he says relates
only to the payment of voters' expenses. He does not say
that these expenses were paid by the candidate or by any per-
son on his behalf. If he considered that the evidence proved
a payment of that character, he has left his opinion to be
inferred. But, even if we should be justified in drawin^^
that inference, it would not follow that the payment was
made by him or with his knowledge and consent. His
sanction may have been merely ratification, after the
election, of what he Uiay have known nothing of till then.

I remember a case which I tried, where it was proved
that a number of Canadians, who were lumbering in
Michigan for an elector of this Province, came to tlieir
homes to vote, their travelling expenses being advanced to
them by the foreman of their employers and charged to
their accounts. I do not think an employer would offend
against section 1.54 by ratifying or sanctioning the act of
his foreman when it came to his knowledsje for the first

SOUTH KE.SFRKW.

379

time after the net lia«l been committed, and after the elec-
tion.

Such a state of facts as this would .satisfy all that is
necessarily imported 1>y the C'hnncellor's certiticate ; and
we know nothing of the facts beyond what we gather from
that document.

It is, in my opinion, inipossible to treat this certiticate
as the report which is |)rescribed by section oH of the
Controverted Elections Act, and as amounting to a convic-
tion of the respondent of a corrupt practice committed by
a violation of section 154 of the Election Act by him or
with his knowledge and consent.

If I am right in this opinion, it is not necessary to ex-
amine the certificate of the leniiied Chief Justiw; but I
dught not to pass without notice the objections taken to it
as evidence for the purpose for which it was used.

It is in these words : —

"And, in fuither pur.suance of the said Act, 1 certify,
that we, the said Judges, diflered in our judgments as to
whether the said John Frances Dowling was guilty of a
corrupt practice, under section IGl of the Election Act, in
paying, or consenting to the payment of the travtilling
expenses of ceitain voters to convey them to the ])oll; and
I, the said Matthew Crooks Cnmeron, for myself, certify
that the said John Francis Dowling was proved guilty of
the said corrupt practice."

This comes more nearly to the language of section lo4.
It can be understood to find, without ambiKuitv, that the
respondent either paid or oonsented to the payment of the
travelling expenses of certain voters to convey them to the
polls. The payment of such expenses is, however, no
otlence, unless made by the candidate or by some per.son on
his behalf. A payment, for example, at the request of the
voter himself by one who neither knew nor cared for
whom the voter intended to vote, or whether he meant to
to vote at all, would, I apprehend, be no offence, and a can-
didate would incur no penalty for consenting to such a

i:t

!■ !

■ i

380

PllOVIXCIAL ELECTION.

j.-

paynient it" he happeuetl to know of it. It would not b«
mado on his behalf.

But if we assume the offence to be sufficiently described
to biin;;^ it within section 154, we have after all only an
alternative desciiption — a payment by the candidate or a
payment by some one else consented to by the candidate.
It is truly urged that in either form the offence coirn.- s
within the section ; but it is equally true that, if it were
possible to identify either with the act alluded to by tlie
Chancellor, it is impossible to indentify both ; and there-
fore, as it is impossible to say which offence the learued
Chief Justice considered proved, it does not appear that
there is a joint finding upon any one chai'ge.

The petitioner is not helped toward.,s the conclusiou
which he has to establish l>y the circumstance that the
two learned Judges concurred in avoiding the - .ection,
becatJse, as I have already pointed out, they do not state
for what caiise they avoid it, or give room for more than a
surmise that their judgment in that |)articular may have
rested on any violation of section 154.

I have not thought it necessary to cite authority for the
principle on which I have dealt with the evidence. But
as one of the learned Judges who tried the petition has
referred to the case of li I'a ,}t \. Ocerseers of Pajhini
3 C. P. D. 80, and, as that ca>'.e has been eited to us on the
argument, I may say that I think that decision is a direct
authority for assuming nothing in aid or in extension of
the report actually made by the Judges. The report i':
(piestion there was made under the provision of tho '' i.
lish statute which is followed in our section 58. IL , : i
" that the said Albert Grant was guilty of a corrupt j/r
tice at the said election within the true intent and mean-
ing of the Corrupt Practices Prevention Act, 1854 ; and I
further report that the nature of such corrupt practice was
the promising before and at the time of the election to cer-
tain voters for the said boi'ough of Kidderminster, and other
inhabitants thereof, that the said Albert Grant would in
the event of his being elected at the said election, and after

[•AV

■ iMsg

SOUTH HENFKKW.

381

such return, <,'ivc to such voters and otlier voters and
inhabitants of Ki<lderminster an entertainment, consistinpf,
ami»n'^st other things, of meat and drink, with a view and
indent to itiduce such voters to vote for him the said Albert
Grant !it such oh^ction."

It was hf'ld that this was not a report that a corrupt
]iraotice had been committed by the candidate, or with his
kiinwh'di,^^ and consent.

Umltjr tlie English Act where the expression is used,
which does not occur in ours except perhaps in section
1V2, "guilty by himself or his agents," a candidate may,
within the terms of the statute be guilty of a corrupt
practice committed by an agent without the candidate's
knowledge or consent. The decisiim in Grant v. Ooer-
w;',? (*/' Paijham, 'i C. P. 1). 80, turned upon this consider-
ation, inasmuch, as consistently with all that was stated in
tilt-' report, the corrupt practice might not have been com-
inittt'd by the catidiilate personally or with his knowledge
and consent. Even the corrupt promise reported was not
sail! to have been jnade by the candidate.

It seems to me that the reports before us do not require
10 he read with nearly so great strictness to make it plain,
as I liave endeavourerl to point out, that they fall .short of
what the statute refpiires before a disqualification is]worked.
But it is noticeable also that if it wei'e permissible to
aiil the language of the report by speculations or conjec-
Imcs however plausible, of what the Judge who made it
must have inteiuletl, there were as fully as strong grounds
for tl'.at process in the English case as in the present one.
The report, it will be rememl>ered, was made in obedi-
riice to ihe provision the object of which is to bring to
the notice of the Speaker the names of the Individuals to
whom corrupt practices have been l)rought home. It
iniLjht well have been argued that as the report of a
)iiactice which was only eonstiuctively and not personally
wmniitted by a candidate and not known or consented to
hy him would be foreign to the object of the section, the
vuta Judge must have meant that the corrupt practice

1 I >•

-3;l.

■ 1- ■' ■■'.

-ni

3S2

PKOVINCIAL ELECTION.

which he n 'ported was one of the nature of those he was
•lirectod to report — namely, personal bribery. Whothri
such an atgunient would have beeJi used or not if couiiwl
had been heard in support of the disiiualitication, wliicli
happened not to l)e the case, we cannot sa}'. If it Inn I
it would probably havi^ been met b}* the same obsirvu-
tion which Grove, J. made when discussii>g the report:
" It may he," he f-aid nt p. 85, " that the learned Judge luul in
his mind when he found, as he does, that the said AHuit
Grant was guilty of a corrupt practice at the said election
within the true intent and meaning of the Corrupt Practices
Prevention A ct, 1854, that he had been j)ersonallyguilty ; Imt
he does not find so; he does i.ot use the words of the Act
of Parliament ; nor does he use words which unambiguously
and necessarily involve a finding according to the Act of
Parliament."

I am unable to distinguish that ca^e in piinciple iVom
that before us. Unless I misunderstand it and the statutf
under which it was decided, the report was siniph' futile,
as it couJd have no eflfect at all unless it afleeted some one
pe rsonally. That consideration, however, was not sufficient
to cause it to be treated as stating, for the purpose of di^--
qual ifying the candidate, anything more than what jjlainly
appeared on its face.

In my opinion the petitioner failed to prove any conu}it
practice committed bj* or with the knowledge and couseut
of the respondent at the election of February, 1883, whicli
would avail him at tlie election of January, 1884, under
sections 158 and IGO ; and also failed to prove such a
report as would disqualify the respondent under section IGl;
and this appeal of the respondent should therefore he
allowed with costs; the petitioner's appeal dismissed witli
costs ; and the petition dismissed, with costs.

Both appeals dismissed.
G. F. H.

WELLAND.

383

p{\

WELLAND.

PRO VINCI A L ELECTION.

Before Patterson, J. A., and Fb'.rguson, J.

Wellam), July 3, 4, 5, €, and 7, JSS3.
Toronto, September S and ^'9, and December 15, 1SS3.
Wklland, December 26, 27, ami 2S, 1SS3.
Toronto, December 20, 1SS3, and January IG, ISS4.

Gkorge Lamblow Hobson, Petitioner, v. James E. Morin,

Respondent.

Mcctimj-1 of parly axsocialionfdr coimtitiiency— Other meetim/.i — Membernhii)
— Corrupt practices — Agency — Trcatimj — I'aijmeiit oj raters'' trureHiuij
I x/KUsen — lirihtry — Corrupt act in connntioii icith illnjal practices --
TrijUmj exteut of^Ji'ciult of election not affected thereby — LUction Act,
sec. lob, li. S. 0. ch. 10— Cods— Sec. 1(JU.

A lieform association existed in tlie constitiicncy as an orjjanized liody
lor bringing forwaid candidates and doing everything in tlieir jiowtr to
elect their nonunees. B. was j)resciit at meetings of the association,
and one witness swore, "be took as much jiart as any of us." It was
not shewn that the organization was well deliiied, or what was necessaiy
to constitute nienibership. A committee and sub-conimittecs were
appointed for the townsiiip in which B. resided, Init be was not on them,
or any committee for election purposes. Committee meetings were held
at his hotel at which he was present, l)ut it was not shewn that ho did
any more at tlie meetings than any owner of a liotel would do at a
meeting held in liis house. 15. swore that, with the exception of one
nmn, he did no canvassing outside his own bouse; be did not report to
the committee meetings in bis house, Itecause be had been doing nothing,
but that be gave the respondent the name of one jierson who wishetl to
see hiui. It was not shewn that be bad any authority from the res-
pondent, or any committee, or that the respondent expected his assist-
ance, or gave bim any instructions, or recognized any act done by him.
At the trial, it was proved that B. bad been guilty of a corrupt practice,
without the knowledge or consent of the respondent.

]{rl(l, following the No7-th Ontario Case, U. E. C. at p. 323, that B. was
not an agent of the respondent.

I), heard of a meeting, went there, and found about half a dozen ])eople
present going over a voters' list, in which he did not take part. It was
not shewn that he bad any authority from the respondent, or any com-
mittee or association, or any one on his behalf, or that anj' act he did
was recognized. D. was found to have been guilty of corrupt practices
without the knowledge or consent of the respondent.

49 — VOL. I e.g.

!;f

itii

:j.s4

l'U«>VINri\L KhKCTION.

Jl'ttl, fiilliiwing tin; Xorlh Oiitnrin <'n-", II. I!. ('. at i>. 317, tlint he wiw

tint i'.ll lijlrlit.

At till- ti'uil (It the petition oiui uorruiit uct, iiniiicly, the )in,viiieiit of thi
tiavilliii:.; t xiKMisiH (»f a votur M. t»y I*'., iiii iiyeiit of the ii'S|i()ii(l(iit,
WJIM |irii\(il ; it wiif) uiso fuiiml th;it C I), wiis guilty of lirihiiy, ja
giving ii (lollir lo (;uli of two votois ami oUVriiig iiioiu'V to iiiiuthi'r, Jmt
no .'i.;i iiry «'"< inovi'tl, uml tiiat L. I>. givd li(]iior at lii.s iavcrn tliiriiig
polling lioiii'M, l)nt lie WiiH not provcMl to be an agi'Ut. It was ccmtcndcd
tiiat tlnsi; latter uctH, an<l th't cviilencu ii8 to the aet.s aiul ciuduct of
three oth' r parties in connection with otlier I'hargt.'s wliii'h were not
proved, ylionld all he taken into conisideration with the jiroved corrupt
act, in order to take the case out of Heo. l,"»'.l of tin; l']lection Act, II, ,S. ()
ch, 10, and pivvent the respondent from saving liiH seat under tln'
I'rovisioii.s oi' Ih it Section.

//'/'/, that the I lection was not avoided.

/»,,,. I'atii;! SON, J. A. The "ii.siiU" n ferred to in sec. l.W is the result
whi<ii touches the right to tin: Heat which is being contt sted, /. <■., tliu
iiiajoi it_\' (>' legal and honest v<»te.s. 'I'iie jietitionri' ennld not insist on
giving evidence of any corrupt jiractice which he has not I'liarged-aiid
lor tills piir|)osc ille;;al acts Jire iiiriu|it jira" tice.s -l)iit whether tlie
cvich nee given ujion any charge is siitliriciit to est iMish it, or falls slimt
of doing so. any f.icts or any course of e..nduct siicwn by that evidence
may he pro])erly considered in cnnneetioM with any other corrii])t or
illeg.il ]iiMet!.-e wiiich has lieeii pioved, .ind the it'lture or proiialili-
extent of which it ni.iy .••(•ive to (du<'iila'(^ , I '.>t en consideration of all the
facts in this ca.se, this election should bi: lieM good and the respondent
duly elected.

/*<»• I i;i;<;r.;oN, ,1. The words "other ilhgil practices at tin; election.
at the end oi' sei'. l.V.I. must be ille'.;al practices th" existence uf
which is ascertained and known, and the way their existence hecoiiu
known is bv the evidence. This c inuot rest in conjecture, it nnist he
[iroved. Whenever, in giving evidence to prove a ooiru[)t i)racti('u
charged as having been (^oniniitled by an au'cnt, it appears th,it ill'i,':d
]iracfiees look pl.ice, tliou^h the evidence f lil to prove the agi'ucy, tins-
illej;;'.! practices are eoiii)>i'ehcndeil in the nii aning of tin; words "otlui
illeg.il ji'ictiei^s at the election," and must be taken in connection with
the corrupt aL't of the agent. On the whole case, the corrupt act prove i
WIS so tiiliingthit the result ciinnot have been aflecteil l>y it, eitli'i
alone oi- in connection with the other illegal ])ractices at the election:
the (dect'oii should not be avoided.

//(/'/, .•ilso. allhougii the re-ipindeiit wis duly el-i'ted. the co-ts did im:
foU.iw this event, but, under sec. 1(!0, as if the event h.id been tin
settin;,' a-ide of the idcction : the respondent i):>ying tlie general costs,
including full costs whic h would have been t.ixable, if the only chargis
had been those on which tlic petitioner h nl succeeded, the latter heiiii;
(le)iri\ed of costs in respect to tlie ch.ii'ges on which ho failed, tlii'
respi'iiiknt be;iring his own costs of those chargus.

The petition containei] the usual cliai-f^cs of coii'Upt
pi'acticos. railiciilai s oi sevLMtty-sevcn char^a^s were oivcii
pluvious to the trial, and on the Hist day of the trial leave
wti.s oiveii to I'livni.sli rurtlier particiilar.s.

Some of the charges were nhandoned, and incst of
those on which evidence was taken were di.smis.sed at the
trial.

WKI.I.AM).

;is:)

(111 cliiuj,'i' N<j. liG, tlu' L'viilenci; of one R()l)ert Chafit'v
shewed tliat on the day of the elec^tion, and after lie had
\oted, he went to tTie hotel or tavern of Lnther Hoardnian
iiud wanted soniethiiiif to drink. BoMrdman told him he
could neither <,dve n<tr sell drink, Init tiiat if he would yo
liiick to the kitchen perhaps ]n: couM get a cup of tea or
»iiiiiethiii«^. lie went into the j'antry. He saw a bottle
there, and that was what took liii>i in there (he ijfot a di'inU
1)1' whiskey out of the bottle); but fliil not see any tea
there.

I'loardniaii swore that he did not know, until lately,
that there was any Avhiskey in the pantiy and did not know
why it was put there. Challey eanu^ in on election day
iiiiil asked for li(|Uor, and he was told he eouhl only j^et
(•■a or eoll'ee.

McCiivfli.//, ijXy., for the petitioner.

S. 11. BLilc, Q.C., R. Ilarcourl, and T. D. (.'oa>iw>\ for
the res|'ondent.

September 29, LSS.*]. FKiUiisoN, J. — Oharye No. 20 is,
sellinjf and <.,dvin;j,' litjuor by L. IJoardmaii to Chafley and
others on 27th I'Vbruary (the ixtlling- day). An amend-
ment necessary to brint'- this within the meaning; of sub-
see. G of see. 2 of the (.'ontroverted Kleetions Act, K. S. 0.
eh. 11, and sec. l')? of the Elections Act, II. S. < ). ch. 10.
was made: and we linil upon tlie evidence tliat L. Ijoardmau
iiid,at his tavern, within the limits of a polliiiM' sub-division,
oil the polling day thei-ein, and during tlie hours appointed
tor polling, give spirituous litpior to said (,'haiiey. The
giving of juflgment as to the agency or not of L. Boardman
i^ piist})oned pending the judgment of the Court of A|>peal
ill another case. There is no evidence to show that the
act was done with the knowlekg.' or consent of the respon-
"li'iit.

( >n charges Nos. 45 and 40, the following judgment in
which the facts are stated was tdso delivered on the same
<lav :

: si

'Hi

.SNG

I'UOVINCIAr, KI.KCTION.

if'

It^

Fkiumson, J. — ( "liaii,'»> No. 4') is, tlio piiynii'iit of nionoy
liy (..'alcli J)oaiii; to .John Way;iU'r to vote for the it'siHunl.'tit;
and char;,'c! No. 40 is, the paynH'iit of money l»y Ciiloh
Doane to .Jacoh \Va;.fner to vote for vesj)onih'nt. We lind
upon the evi(K'nce that Caleb J)oane did pay to eueh of
these persons, John Waijin r and Jacob Wa^Miei, a hiuall
sum of money to induce them to vote tor the ies|Hjiiilent.
The yivinL,' of jud^'meiit as to wliether or nv^. Caleb Duaiie
was an a<,'ent ol the lespondent is postponed pendiiiij tht-
judi;iiKMit of the Court of Appeal in another case. Then-
is no evidence to sliew that these acts were done with the
knowledge an<l consent of the respondent.

Subsequently jud^'ment was delivered on the ([Uestioii
of aj,fency.

])cfember |,')th, IS«:J. Fkuol'SoN, J. — By a b'niicr
judLTineiit in this case, it was found as a fact, that Liitlier
15oardman ditl, at his tavern, within the limits of a pollii)j,'
sulxlivision, on tlie polling day therein, and durinif the
hours a[)i»ointed for pollinj,^, ^ive spirituous licpior to oiio,
Chall'ey, and that Caleb Doane did pay to each of the ^kt-
sons, John Wagner and Jacob Wagner (they being vutor-s),
a small sum of money to induce them to vote for tlu.' res] lou-
• leiit; and it has become necessary to deternune whetlKr (ir
not the said Luther Boanhnan and Caleb Doanr wore
agents, or either of them was an agent, of the respondent.

It was shown that there existed what was called a Relnrm
As.sociation for the county of Welland. 'J'he w itne.ss, Janics
Henderson, said that he had been connected with this
association from 1852 or 185,'}. Hesaid it wasan organizid
body for bviuging forward candidates, and when a candi-
date was brought forward, to do all in tlu;ir power to havn
him elected. Ho .said Boardman was present at nieetinj,'S
of this a.ssociation, and took, as he put it, " as much part as
any of u.s." He said that at these meetings, or some of
them, resolutions wei-e passed to the efl'ect that all roforuiers
present might vote. From the evidence given, it was (to

WKI.LANl).

3S7

iiu') soiiu'wlmt tlillicult to lUnloi'Mtiiinl wlmt constituted
iii(iiilifi'slii|» ill the Association, or wliftlicr or not nii'mlitr-
-Iiip cxtcnilfil to nil iit'onncrs in tin- county who sjiw tit
t I ;ittrMti till' niL'(.'tin;^'s.

The or;,,fani/ntion spoken <ii' liy the witness did not
ii||iear to l»e a well deliiied tliini^', ainl I am stidULrly
inclined to think that it was veiy imperfect, and not
such an or;;.iiiisatiun uh that mentioned l.y Mr. .In^ticc
(Iwynne in the Kdst XorfliKDihrrhiinl l'<is<', H. K. ( '. .SsJ,
(U onv doin^f it.s work at all in the same way.

V cf.mmitteo and siih-i-omndttee were ainiointeil lor the
liiwnsiiip in which Board num resided, hut he was not upi'ii
any f)t' these committeos, nor so far as appears, upon any
iitlier committee for election purposes.

Several (!onimitteo meetings wei-e hehl at I'oardman's
house, which was an hotel or tavern, and he was
present at .some, if not all of them. 'i'heiv were
as many as three or fo\n' oi them. Henderson says
th.at Ijoai'dman was not one of the committee, and miyht
li.-ivc Leen expelled from the meetings. He also says that
111,' (llendoi'son) cannot say that lioardman did more at
these meetings, or any of them, than any owner of a hotel
would do at a meeting held in liis house. He savn that no
duty wa.s assigned to Boai'dman, and he could not .say that
he did anything in particidar, hut that he seemed to take
as nuieli interest as any one. The .same witness, in aiKjther
p.irt of liis evidence, says that Sihhitt and Collins wt-ro
named as persons that Boardman might influence, but he
could not .say that Boardman was to go, oi- promi.sed to go,
and see these per.sons or either of them.

Boardman .says that, excepting going to sec one, Haap
(who, if I recollect rightly, was an alien, and had no vote),
and in his own house, he did no canvassing. He .says that
three or four meetings were held in his house, that he did
not report to the.se meetings or any of them what he had
heen doing becau.se he had been doing nothing. He say.s
lio thinks there were some pensons who had not seen
the respondent, and who desired to see him, and that he

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888

PROVINCIAL ELECTION.

told the respondent thi.s, and gave him the name of oiic
person.

There was evidence tending to show that Boardnian
had much iiiHuence on municipal matters, and that in sucli
matters a party called tlie " Boardman party," was a strong
pai'ty. There was a good deal of evidence given witli
respect to the position of Boardman in refere/ice to tli"
election. Much of this v/s'.s in relation to the resignation
of a license commissioner and the sujtposed leason for it.
which did not seem to me very jiertinent or material. 1
think, liowever, that the whole of the evidence on the suh-
ject did not show the position of Boardman to he mateii-
ally different from what it appears to be from the parts Vr
which I have refeired. In thu contention that Boardman
was shown to have been an agent of the respondent, tin'
Ed.sf Xorthvmhciiand Case, to which I have already in-
ferred, was, amongst others, relied on.

Boardman was not upon any committee, lie was not a
canvasser. It is not shown that he had any authority
from the respondent, or from any one on his bidialf, orfi'mii
any counuittee, or from the Association, to constitute ;ui
agency. It is not shown that the respondent expected oi
claimed to be entitled to his assistance, or that he rceoj-
nised any act done by him, or gave him any instructiniis
or even any caution such as was given in the Novtli Ontario
Case H. E. C. •'524, or such as in this case was shown
to have been given to Tookey and Flynn.

The respondent did not accept the nonunation tendered
.am by the convention for some time afterward, and lieilid
not, and could not then, have given the members of it any
authority or instructions to solicit votes for him, and it
does not appear that he did so or had tUiy oi)p()rtunity of
doing so afterwards.

In the 2\orth Ontario Case, H. E. C, at p. 32;], Chief
Justice Wilson is reported to have said, " I cannot do better,
after reading most of the law on the subject, than accept as
my principal guide, as to what will constitute agency, the
rules of Mr. Justice Grove in the Taunton Case, 2 O. 51. & H,

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WELLAXD.

389

I- J ?'

GG, and inquire whether the candidate or his agent did em-
ploy tiie person whose conduct is impugned to act on his
behalf ^" did, to some extent, put himself in such person's
hands, or, did make common cause with liim for the piirpo.se
of promoting tlie election; and in thcWakefield Case (2 O'M.
k H. 200) when the same k^arned Judge uses the like lan-
guage, of tlie candidate placing himself or allowing liimself
to be in tlie handrs of certain persons, or making common
cause with them.

Adopting tliese rules liere, and they seem to bj very sen-
sible and comprehensive, 1 do not perceive bow I can
fairly, on the evidence, arrive at the conclusion tluit it bas
been shown that Boardman was the agent of the respon-
dent, and I am of tlie opinion that such agency has not
been establisbed.

As to Caleb Doane, it was argued that lie attentled a
meeting, and thereby became, or was shown to have been,
an agent of the respondent.

Caleb Doane, in his evidence says that Francis Augustine
told him of a meetinLl at the Humberstone school-liouse,
and that he went there, that there were there about a half
a dozen people ; that they had, lie thouglit, a voter's list,
or more tlian one, that he himself had not any list in his
band, that lie might have sc^.i the others " at the lists " but
he did not hear them go through any of it. It is not shown
that Caleb Doane was active or did nuich work of any kind
at the election, but in doint; the little that he did do he
went wrong. Tt is not sliown that he had any authority
from the respomlent, or from any one on his behalf, or
from any eonnnittee, or from the Association, or that there
was any recognition in any way of any act that b.e did.
There is simply the fact that, in the way he tells it, he
attended this meeting.

In the Korth Ontario Case, H. E. C, at p. 817, it
is said, "A person upon a committee, but not shown
bow he ffot there or what he was to do, who wrote a letter
oti'i-ring to pay a voter's travelling expenses was held not
to be an agent." And the passage from the judgment of

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390

PROVINCIAL ELECTION.

Bramwell, B., in the ]Vi,uhor Case, (2 O'M. & H. 88) is
refuirecl to, which is in tlie.se words, " If we were to hold
this man to be an agent it would make the hiw of agency,
as ap[»iicable to candidates,positivel3' liateful and ludicrous."

If I adopt this in conjunction with tho lules before
alluded to which were adopted by Chief Ju.stice Wil.^on
as his principal guide in the North Ontario Case, siipro,
and so far as I have been able to see from a ])erusul
of many authorities upon this somewhat jtuzzling question
of agency in election eases there are no better rules to
adopt, I d(j not see how I can arrive at the conclusion that
Caleb Doane has been shown to have been an agent of the
res|)ondent, and I am of the opinion that it has not been
shewn that he was such agent.

I am therolbre of the opinion that it has not been provfj
that either Luther Boardman or Caleb Doane was an airoiit
of the respondent.

Cliarges Nos. 48 and 49, the payment of money for
travelling expenses by agents of the respondent to one
John Mahiigan, a voter, were found proved on the evidence ;
but it was also found that tlie act done was witliout the
knowledge or consent of the candi(hite.

The question then to be decided was, whether, under
sec. lo9 of the Elections Act, the corrupt act proved to
have been conunitted by an agent, without the knowledge
or consent of the candidate, was of such a tritiing nature
that the result could not have been atlected Lhereby, either
alone or in connection with other illegal practices.

On this point, both the learned Judges gave the follow-
ing judgments :

hIh

^d;

January 10, 1884. Pattkrson, J. A. — We have, duriii<:
progress of this trial, disposed of a lunnber of the charg< ^
of which particulars have been given, l»y liolding that tl.'-
petitioner faileil in his attenipt to establish tliem by proof,
and we have held that as to some other charires he had

•II:

WELLAXD.

391

been more successful. One of tlie.se was, a charge of the
violation of sec. 154 of the Election Act by the payment,
on liehaU'of the ]-espondent, of the tr<ivellini( expenses of
one Maha;,^an, a voter at Stonebridge, in returning from
the poll at that place to a place in the Unitetl States, where
he worked. The agent by whom this corrupt act was
coniniitted was one Flynn, of whom we do not hear in
connection with any other charge, or one Twohey, from
whom the money actually came, and whose name does not
jijain occur in the evidence as doing anything about the
election.

We also found that one Caleb Doane was guilty of
bribery by giving a dollar to each of two men named
Wagner to induce them to vote for the respondent, and of
offering money, though not any definite sum of money, to
one Martin ^lorningstar for the same purpose ; but we did
not find that Doane was an agent of tlie resjiondent

And we held that Luther Boai'dman was guilty of
violating sec. 157 by giving liquoi', at his tavern, on polling
(lay, and during the hom-s of ])olling, to one ChafFey.

Mahagan lived in Port Colborne. He was working at
some place in Pennsylvania, and happened to be home, on
at'count of some ihness in his family, some days before the
election; and at Flyiin's recjuest, he put off his return to
Pennsylvania till after he had voted. His vote was secured
by kei'jiing him in the Province ; but there is no evidence
to suggest that it was otherwise influenced, or intended to
bij intluenced, by the payment of his return fare to
Pi'nns^'lvania.

Tlie nature and extent of the acts done by Doane are
shewn by what I have said of them.

In Boardman's case, the li(juor was given to a person
wliu had ali'eady voted, and who asked for it because he
Was C(jld, and who, nioreover, was a supporter of this
opponent of the responrlent. It, therefore, neither had
nor was intendcil to have any influence on the election, or
any reference to the election.

We did not consider that the evidence which was brought
50 — VOL. I p:.c.

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I'ROVINCIAL KLKCTIOX.

under our notice in connection witli tins cliarge was suffi-
cient to fix Boardman with the status of Mifent ; and thf
character of the 'act provccl against hiui, which, tliou^'li
made by the statute a corrupt practice, in no moral sense
.savored of corruption, was not such as to tempt the Court
to strain the evidence iii tliat direction.

Anotlier charge with wliich Boardm;in is associated ha;*
now been argued before us. It lias been urged that it
may .still he pi'oper to hold him to have lieen an agent of
the I'e.spondent, and I an» inclined to think that if we
should adopt the view contended for, on the jjart of the
l)etitioncr, of the charge 1 allude to, the conclusion tliat
Boardman was an agent would follow very much as a
matter of course. I shall refer to this again. In the
meantime, I may remark that hi.g agency iloes not seem
very important, since one covru{:t act by an agent hnviiig
been found, the fpicstion of the avoidance of the eleeti()n
depends on the view taken of the character and extent of
such other illegal ju'actices as have to be looked at in con-
nection with the corrupt act so found, and n(jt necessarily
(»n the agency of the persons who may have been guilty of
them.

The acts of Doane, and tlie giving of the lic^uor to
(haffey by Boardman have no connection with each other,
and arc equall}' dissociated from the payment of Mahagan's
t'xpen.ses.

Taking all these together, and assuming the utmost
effect that, either by disregarding or overstraining the
evidence, could be attributed to them, nothing more could
Ik- claimed than that in each case a vote may have been
diverted from one candidate and cast for the other, making
11 difference of ten, or double the number of the votes, in the
m.ijority. The result would still be a decided majority,
and so the result could not be reasonably supposed to have
been affected, even on that verv extreme treatment of tlio
evidence.

If we could properly read the phrase "affect the result'
as meaning " reduce the majority," or regard the word

I"' .

WKf.LAND.

305

"result" as embviicin^- all the collateral consequences, such
as gain or loss of prestige which niiijht follow from the
apparent popularity t»f a candidate as measured by the
majority of votes ovei- his upponent, we mi^ht siiy the
result was atfected M'herevei' a vote was struck oth Mr.
McCarthy cited a dictum of ^Ir. Justice Oi-nve in the
Uachncy Cane, 2 O'M. & H. at p. S4, where in discussing a
|irovision ('}.') & 86 Vict. cap. >V^, sec. 13) e(]nivalent to sec.
Iii7 of the Election Act of Ontario he suggested that the
expression, " the result of the election," might not neces-
siii-ily mean the result as to another candidate being
rlrcted at the polls, and that, within the meaning of the
sfction, the result nii'dit be affected bv the reduction of a
majority of oOO to 100. lujit case turned upon the ques-
ti >u wdiether the election had lieen conducted in aecordjince'
with the principles laid down in the Ballot Act, rather
than upon the inquiiy whether the irregularities had
iitrected the result, and it does not amount to a decision
upon the intei'pretation of those words.

The observations of the learned ■Tu<lge l)y no mcnns con-
vince tne that the view he suggests is capable of being
iiiiiintained. In my opinion the result referred to in
■^ec. 159, which is that with which we are concerned, and
I should say also in sec. 197, is the result wdiich touches
the riii'ht to the seat which is bein^j contested — in other
words, the majority of legal and honest votes.

It was scarcely, if at a^', contended that the result coidd
lie reasonably supposed to have l)een aflected by the
]>ractices to Avhich I have been alluding; but it has licen
Very strongly urged that there ai'e four other charges, all
or some of which we ought to hDld establishe<l b^' the
t'vidence; and that these charges or such of them as niay
''0 held to be esta]>lishcd, either alone, or in connection
with the illegal practices already found, must deprive the
trspondent of the saving effect of sec. 159; and it is
lurther submitted that whether these charges are techni-
• nlly established or not, there has been, at all events^
much illegality and corruption shewn, which ought to be

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394

PROVINCIAL ELECTION.

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looked ill in connection with the specific acts that have
been proved, and which mo reyai'ded, makes it improper to
8ay that the result cannot have been affected or cannot be
reasonably supposed to have been aflectcd.

One of tliese four charges is tliat the respondent prom-
ised to procure or to endeavor to procure the ofHce of
license connnissioner for the county of Welland, for a
person unknown to the petitioner, to induce Luthei- Koard-
man to procure or endeavor to procure the return of the
respondent to serve in the Legislative Assembly.

This is a charge of bribery in the terms of section 141) of
the Election Act.

There is no evidence whatever to supjtort the charge in
this shape.

The facts souuht to be established r.re that Board-
man, who keeps a hotel, was dissatisfied with a Mr.
Henderson who had been for some years one of the license
t^onunissioners for the county of Welland, and desired his
removal from that office, and that the respondent, in or.l. r
to conciliate Boardman, who is said to have some influence
at elections, ))romised to endeavor to procure the removal
of Henderson. No one has sugL^'ested that Boardmans
object was to secure the })osition for any particular per-
son — what is said to have been aimed at was the getting
rid of Henderson.

But while tlic charge, in the shape in which it appi'ais
in the })articulars, is not at all pointed at by the evideniM;,
I do not say that a charge of bi'iber}' under some of the
definitions contained in sec. 149, might not be made outliy
proof of a corrupt agreement to procure the dismissal of
an obnoxious person — and I have carefully considered the
evidence with a view to satisfy myself whether it can be
fairly treated as proving such an agreement or understand-
ing.

The fact that Boardman wished to have Henderson
removed is clear enough. The removal, however, not
meaning dismissal but merely tliat he should not be reap-
pointed after the end of 1882, when the current appoiu t

■ r

WELLAND.

3!)5

merit expired. The appointment is annual, and is usually
made in January. It appears that Henderson, either
because of Boardinan's hostility, or because he could not
work pleasantly with one of his colleagues, had sent in his
resignation of the office in 1882, but had been persuaded to
recall it. The respondent does not appear to have had any-
thing to do with this, the conniiunications Iteing between
Hender.son and Mr.Harcourt,who represented the County of
Monck but lived in Welland. It also ai)pears that Mr. Hen-
Jerson had no idea that ho would btn-e-appointed for 1883,
and that Mr. Harcourt had stated that Henderson would not
again accept the appointment. Mr. Henderson was gazetted
in March, 1883, which was after the election, as a commis-
sioner for 1883, but he tells us he received no other inti-
mation of his appointment, and as a matter of fact he
never acted. Representations weie made to him by .some
members of the Reform party, of which Henderson was
himself an active member, that it would be for the good of
the party that he .should not accept the ap])oiritmi'iit, but
tins was after the Gazette had announced the appointment
in ^[arch. And although the actiim was dictated by a
desire to allay the displeasure which Boardman felt anil
expressed when he heard of the aitpointment, it is n(jt in
any way traced to the respondent or brought into connec-
tion with any antecedent promise. The utmost which we
Could .say upon the evidence the respouilent liil or said
about the matter was to repeat to Boanhnan what Harcourt
had said, namely, that Henderson would not again accept
the appointment.

If we could properly find on the evidence that the res-
pondent, either in connection with this matter or apart
iVom it, had .sought to procure the active services of Boaril-
inan in promoting his election, there wouhl, of course, have
no longer l)een any question of the agency of Boardman
even though the conduct of the respondent stopi)ed short
of holding out to him any corrupt inducement ; but I do
not think the evidence respecting this subject of the licen.se
commissioners can fairly be treated either as proving an

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III

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i.'JO

I'UUVIM'IAL EI.ECTluN.

ir'"

I: Hi

jittoiiipt to liriliu BoiU'dinan, or as addirii^f to the other rvi-
Ueiice relied on to shew him to have been an agent of tho
respcjnck'iit.

Anothei' particulai- chai'ges the res[K)udeiit with hribiiiL,'
jjer.soiis named Roaeh and Chamhei's by a promise to pro-
curt' a lieen.se for a hotel wliieh Roach was buying froiu
some membei'.s of tlie Chambei'.s fannl}'. The house had
been licensed for years; but, being out of repair, the
inspector had not reported it for license in lhS2. It was
bouglit in March, 18S3, by Roach, who succeeded in getting
n license. How he nuinaged to succeed does not appear;
but we should be tinding, not upon evideiice, but contrary
to the evidence, if we decided that the renewal of tliH
license to this house was the result of any .such corrupt
act, as that charged, oj' that the respondent had any con-
neetioJi with the granting or procaring of the license. The
only circumstance on which even a suspicion can be founded
is that Hiram (Jhambers, who, by-the-bj'e, is sworn toha\e
had no interest m the license, wrote to one Hendershott
nsking him to vote for the respondent, and sa^ying that by
so doing " you will oblige us," which he explains to mean
thi' lespondent and him. But that, wliile it would be coii-
.sistent with or conhrmatory of evidence, if there were any,
uf a corru})t bargain, cannot by itself ju'ove it.

Then it is charged that Luther Boardman bi'ibed Geori-v
Haun liy a payment of money, the fict attem])ted to be
proved Ijeing under cover of a loan of either S3 or §.">,
money was given by way of a bribe. Themt)ney is proved
to ha\e been given, and a promissory note for So, with the
addition of lil'ty cents, said to be iuv interest, was taken.
The parties to the transaction, who are the only witnesses
upon the charge, tell us that the note was for money really
lent, S2 a shoi't time before the election, and §.'3 on the
election day, an<l that it had no refei'ence to the election.
One may not feel entirely inclined to adopt the belief that
the whole essence of the matter has been cmdidl}' disclosed.
but that suspicion cainiot be taken to satisfy the burden
of proof which is upon the petitioner, and it is therefore
impossible to say that this charge has been sustained.

WKI.I.AM).

3,97

Tlic loiirtli char''!' iiivulvi's iiioIl' sciious coiisiilcrjitioiis.
It I'luliiaces t.lirr»! items ti( the particulars, No.s.'l'. .'5, and (5, aixi
is to tlio eUt'ct LliJit Jjcujatnin Upper, who is allcLfcil tu
liive lici'ii an ag(!nt of the respondent, was guilty of Itribery
I'V oU'ering money to one William M. Thomas to induc''
liini to vote for the respondent nr to refrain from voting:
and by oMering or j)aying money to one Sanuiel Mcliuu">
fur a similar purpose. 1'liat money was offered to Thoma-'
tn induce him to refrain from votinij. and was refused bv
him, is pioved by liis own testimony, the truth of which
there is no reason to doubt ; and that the oif'er was made
ill the interest of tlie res])ondent is, I think, a reasonabh-
inference from all the faets. It is not iiroved in teiins bv
iMelnnes that either a paynu'nt or an (jller was made to
him; but it is urged that, while he, in terms, denies that
lie was approached in eithei- of those forms, we ought to
infer from his evidence that he was really paid ten dollars
or more to stay at home and not v(jte. He was eertainl}'
spoken to about his vote by the same man who tempti^ii
Thomas, which is sufficient to show the activity of that man.
and which, having regard to the act of bribery iu the casi
of Thomas, makes it of little moment whether Mclnnes
was actually j)aiil or even actually oflered money.

But the man who approached these voters was not Vmu-
jiunin Upper in his own person, and nobody has been able
to tell us who he was. He was a stranger in the neigh-
bourhood. Upper had begun the day at Allanburgh town-
hall where the ])oll was being held, and started, as he tells
us, about eleven o'clock, to tlrive to Port Robinson. He
overtook the mysterious stranger who asked him for a ride,
with which re(pH!st Up])er of coui'se com])lied. It is not
likely that any one in his ])lace would have doiu; other-
wise. The stranger was not comnmnicative. and Upper's
curiosity was so far restrained by his good breeding that
he did not ask Ids companion who lie was, or wdience he
came, or why, on that cold February day, he was travelling
on III. it on that uui'amiliar road. The sti'anger, however,
iiii|uired where McliUjes lived, and Upjier was able to

[ih^iH

r,98

PUOVINCIAL KLECTIOV.

W'l

inform hini, althou^'h liudid not know McTnnos pcr.soimlh'-
nnd lie also kindly acceded to the sti'an;,'er'.s re(iuost to drive
to the honso, although ^oiii,L,' there and returnin'^ to the
Stone Road, which led to Port Robinson, involved the
iiddition of a mile to the leni^^th (jf their drive.

Before turniiii^ off the Stone road they met a man drivini'
his sleigh with a load, and the strangcM-, asking who lit; was,
and being told he was William Thomas, desired to speak
to him. Mr. Upper obliged him by waiting while lu^ -fot
out of the buggy, followed Thomas, c(mversed with liini,
and returned. It was at this time the offer was made to
Thomas, lint Mr. Upper who s;it in his buggy <lid n(jt hear
it. Then they drove on to the Mclnnes farm, the stran^-cr
maintaining his reticence as to his business with tlie man
he was in search of, and as t > the object of his incur.siou
into the neighbourhood, as well as to his personal identity.

I was, luitil after the last argument l)efore us, under what
I now believe to be a misapprehension respecting tlie etloet
of the evidence concerning the visit to Mclnnes. I thou'dit
there was a discrepancy between Upper's statement that
Mclnnes was not at home when the stranger calleil, or
rather between the stranger's statement to Upper that he
had not found Mclnnes at home, and Samuel McInnesV.
statement that he was in the porch cutting wood when
the two drove up, and was there interviewed by his visitor.
But a reference to the reporter's notes has convinced nie I
was mistaken, and has at the same time removed part of
the impression I had formetl against the honesty of the
evidence given by irdnnes. I now undei stand the facts
to be that Mclnnes, the father, was the jjerson .sought for.
Ho was not at home, having gone to vote, when the stranger
encountered Mclnnes, the son, in the porch, and had with
him the conversation, which, if to see him had been the
object of the visit, seemed something ver}'^ different from
what one would have expected to hear. Samuel tells us
that the stranger asked him if he had a vote and if he
intended to vote, and being told by the young man that ho
believed he had a vote, as the people told him he had, and

I i«

WKI.LANI).

;}!)[>

that ho int<,'!i(lo<l to vote after his I'lithtT cnine in, K't't him
without any further allusion to tlio votiiij,'. Tlic lensotj
ifivon for not votiii'' hy Samuel Mflnnes, ninv not he verv
siitisfactorN'. It is that the nei;;lihours said he had received
ti-n dollars not to vote, and he would not undeceive them ;
liut it is at least consistent with his tellin<j; us thr.t. when
his father retuined home, not long after the men ha<l lieen
tliere, ho told Samuel tluit the neighhours were saying this.
Samuel may he speaking truth or not in telling us this,
hut if such a story were at that time in circulation, it could
scarcely have ascribed the bribe to this visit of Ujiper and
the other.

After these two interviews. Upper and his passenger
returned to the Stone road ; but, instead of the former
pursuing his journey to Port Robin.son, he drove back to
AUanburgh, to which place the stranger wished to return,
and left him at the town-hull wheie the poll was being
h.'ld.

The contention for the petitioner is, that these acts done
hy the unknown stivmger nuist, under the civcunistanees,
he attributed to Benjamin Upper, and that all the mystery
made about the afiair is only a cloak to conci al the hand
(»f Upper wlio was the real actor.

I think the evidence goes a long way towards that con-
clusion, if it does not render it the necessary one. Wv, have
the fact that Upi,er, who was, to say the least, a sympa-
thiser with the respondent, drove the .stranger under circum-
stances which require explanation ; and we really have no
explanation which commends itself to me, as proving hone.st
ignorance of the piirpose of the stranger's visit, or which
satisfactorily negatives knowledge or wilful blindness. I
ilo not think tliat even the proverbial presumption in
favor of innocence requires us to receive the account given
to us as shewing that the two men got together on this
election day when the mind oi each of them was full of
the contest that was going on, and in which they had been
each taking some part, in the casual wjiy described, just
as one wayfarer may overtake and pick up another, and

51— VOL. I E.C.

Ill

r ;

i^M'

400

PllOVIN(,iAL Kf.ECTlON.

tliat iiotliiii;,' was said ii|)om tlif topic; of tlio day, and thai
one of tlit-ni atiswiTcd the otluTs iu(|uiiy as to oru; iimji
after anotluT — Mcliiiifs and Thomas — without rcferriri','
those inquiries to the sidijeet ol" tlie vote ; and that oiir
tii"-t went ont of his way to put the other into coinnuniieu-
tion with a voter, and then fnrthei' postporuMl his visit to
I'oit Itoliinson until he had returne*! liis new and nameless
frit'iid to th(; scene of the polling; at Alhmhur^h, witlidut
coinie(!tin;jf the (^xpiMlition oC the sti'an«,'er with the eh-ction.
and witliout a thought as to wliieli side was to bcnolit by
what he so Uindlv aiiKvl the straiiLrcr in (h)inLr.

I am prepared to accede to this part of the arjfiunent for
the petitioner, and to deduce from tlie conduct of Upper
wliicli to my mind lias not been exphiined away, the con-
clusion that the oiler to Thomas was in efl'ect an offer mnde
by Uppei", and tbat whatever took place with Mclnncs
should also be attributed to him. I ilo not see my way te
hold, as proved, any oiler or payment to Mclnnes. H.is
exph^nation of the possession by him, soon after the polliii:,'
(]jiy, of ten dollars or more, may not have been very oon-
vincin^f. The father to whom he ijave that money, ami
who is said to have brought him th(^ report of the talk of
his beinn- bribed, wns not called. Under all the circuiii-
stanct's it would be i^'oinn;; too far to hold the fact to be the
op])osite of what the witness swears it was.

It iloes not 8eem to me of much importance whether tlic
corru]»t otl'er to Thcnnas was the act of Upper or that of
the strani^ei' alone. It was simi)ly one corrupt act.

We are asked to find that Uppcsr was an ajj^ent. T think
J'oi- the reasons I have^iven with iToard to ]^)()ardman,tliat
little or nothing tuiiis on the agency of Upper. But I
cannot hoM npon the evidence before us that he was an
aireTit, without extendinf; the same status to everv one wlm
exertenl himself to any extent in forwarding the election of
the respontlent. There is nothing proved which strikes
me as e;ip;ibl(> of being acted upon as cvidcMiee either of
his appointment by the respondent or his authorized agents,
Ol' recoi-'iiiLion of him as acting on the respondent's beliall.

WKI,I,ANI».

•Ktl

There rfiriiiiiis thn important ijii'-stion of tlw! apiilinit'ntii
of st'ctioii I .')!).

I novcr apitr lacli thi^Huhji'ct wlLlioiit Fcu'liii;,' that a task
has to lit> niiih^ii.ikon. for th(! pcrt'oriiiaiuM! of which wt>
liavc a rath(!r indrtiiiitc ruh' laiil <h)\vn, nlthoii^jh |iriliaps
as tieliniti' a one as could he fnuiicd iti vic^w of the cndlesH
vavirty of the fnct^* to whicli it has to lie applied.

\V(^ have to say whether, a corrupt act haviiii;' hrrii
proved to have heen coiiunitted hy nn a^eiit. the direct (sU'ect
of which is to avoid the election, tlu; ciisc is one in which
the troiihle and expense of a new electi(»n would he iin-
niM'ossary and useless; and tlu; criterion is, if tin! corrupt
a(!t coMunitted hy the a^^^ent was of such tiillinif nntui-e or
was of such trillinu: extent, that the result cannot have
liecn nirectt'd, or he reasonalijy supposed to liave heen
affected, hy such act, either alone or in connection with
other illej^'al practices at the e]i>etion.

Now, ns we poiute<l out in a judi;'ment deliveivil last
sununei- in the Wrxf Si iicix'. ('(l.^c, (ttnte l'2H), wt; have not
to enter upon a ijiun^l scrutin}' in order to satisfy ouiselves
of the nundier of votes which this or that cori'upt act or
illeL,'al pi'actico n^ay possihly ]ia\e diverteil fi-oin one can-
<lidate and u'iven to another, or niav lia\e caused to he

imp

oned

That

course would lie noce.ssary i>nly in case

our

dutv was to say if the result had or had nut heen allect(>d.

And, if that were ourdutv.tlu

precise cliarai

■ter and extent

of every illeijjal practice would have to he investi^vited and
gaUL;'ed. That illei;'al ])raetiee,s nia\', altlioui;h they are not

cernitit acts, affect th(! result, an

1 of

con

rse a fleet it hv

addiiiL;' to or takinif fVoni the vot

,e,s wliicli a (

audi lati

receives oi- ou;4'ht to I'eceive, is assiniied hy the section, and
that that eiieet may vary v/ith the character and extent of
the illegal act may he taken as a truisn).

I therefore mulerstand the words "ti'itline' nature" autl
" trillino- extent " to apply to the illeiial practices nu^ntioned
in the section as well as to th(^ corrupt acts. Thus I take
the mcaniiii:^ to he that a corniiit act of an agent, though
considered in connection with other illegal practices com-

•i

III

402

PROVINCIAL ELECTION

mitted at an election, shall not (if done without the actual
knowledge and consent of the candidate) avoid the election,
if by reason of its trifling nature and extent, and of the
trifling nature and extent of the other illegal acts, tlie
result cannot be reasonably supposed to have been affectiil.
The difficulty I feel is in forming a satisfactory' judgment
as to the limits intended for the inquiry respeviiiig illegal
practices. Are we confined to such illegal practices as
have been specifically proved ; or are we intended to take
into account practices which there may be reasons more or
less strong for suspecting, but which are not proved ? Anrl
if our attention Is to be restricted to those which are
proved, must they not also be charged in the ]:)etition ami
specified in particulars, if particulars are ordered to l)e
given ?

In the West Simcoe Case, sw^^ra, in which we held thai
the seat was not saved by section 159, the circumstances
did not call for an answer to these questions. The cor-
rupt act there found was a breach of sec. 157 by selling or
giving sj^irituous liquor within the hours of polling, a
practice which had been continued the whole da}-, without
any regard to the prohibition, and of which therefore it
was not possible to state the extent or to say it was trifling.
The same thing may be said of the Lincoln Election
Case, in the decision of which J took part some years ago,
and in which the illegal practice was bribery, under the
provision now found in sec. 1 49 (e), by advancing money
to be spent in bribery, H. E. C. 493, 494, 497, 498.

Yet in each of these cases, if the result was affected, it
must have been by a series of acts, no one of which was
specifically proved. In the one case by giving liquor to a
number of persons, and in the other by distributing the
money among many individuals.

The opinion which one is naturally inclined to adopt
is that while the onus is upon the respondent to
satisfy the Court of the trifling nature and the trifling ox-
tent of any corrupt act or illegal practice, he should only
be called on to rebut or minimise those wf which,

WELLAND.

40.S

by some form of pleading, he has had notice. Thus,
if we suppose a charge that A. an agent, bribed
B. a voter, by the payment of money ; and if we
further suppose the evidence to shew that A. had with
hiiu a large sum of money, under circumstances which
raise a strong and not unreasonable suspicion that his
object was to spend it in purchasing votes, one of tliose
circumstances being the payment to B. of one dollar to in-
duce him to vote for the particular candidate ; but the I'cst
of the money not being traced ; it might be urged with
much force that the measure of the corrupt act, both in
its nature and its extent, was the payment of one dollai'
nncl the influencing of one vote, which could not be sup-
posed to have been capable of affecting the result when
there may have been a substantial majority.

I am sensible of the difticulty of meeting an argument
of this kind with an answer which shall, in all respects,
s(]uare with our ideas of what the principles of pleading
may require; but I am not sure that the case is one for a
rigid application of those principles. It may perhaps be
as correct to say that it is only giving effect to the purpose
and intention of the enactment, without violating any
principle of pleading, to hold that, in sucl a case as I have
ptit. the surrounding circumstances show the nature of the
spt'citic act ; and that while its extent may be trifling, its
nalure as one overt act of what appears or may reasonably
W assumed to be an an-anged sj'stem of operations, would
be niisdescribed by the word " trifling."

If all the matters which are proper to be considered
under sec. 159 were required to be formally put in issue.
a much more complex system of pleading would have t<>
be ailopted than that which the statute contemplates.

I Miink that in estimating the nature and extent of ;v
corrupt act, our vision is not, of necessity, to be limited to
the effect of the act which has been specifically charged
or specifically proved ; but we are to look at its history
and the circumstances connected with it ; but I am
satisfied that the "other illegal practices at the election''

404

PROVINCIAL ELECTION.

I* .'! '

of wliicli the section speaks, are only such acts us are
declMix'd ilh'fral by the EU^'tion Act.

'I'liis tiTin "illegal practices," Ilk*? so many other things
in the statute, is not free from ambiguity. Thei'e are
many tilings forbiiMeii, and therefore marie illegal, bv the
statute, asr.7. by see. 188, refusing to obey an order o. the
Returning Officer, or Deputy Returning Ofhcer, to arrest
a person who is disturbing the peace ; by .sec. 140 refusing
to deliver u]) offensive weapons; by sec. 141 couniiittiug a
battery ; by sec. 142 a])proaching, armed, within t\v(j miles
of a jiolling ])lace ; by sees. 14.S and 144 furnisliing flags to
be carried on ele(.'tion day, or ribbons to be worn. These
acts, while prohibited in the interest of peace and tatod
order at elections, and in that sense illegal, are no doubt
ca[>able of in some way atlecting the result; but I do not
take them to lie of the class which, under sec. 15!) are to
be considered in connection with the prove<l corrupt act.
I take that class to include those practices only which are
dealt with in the group of .sections headed " Prevention and
punishment of corrupt practices and other illegal acts at
elections," and which wouhl come under the jurisdiction
of the Coiu't for trial of illegal acts created by sec. 174.
But all these acts are also corrupt practices, being either
so declared in the sections which forbid them, or b\ tlie
effect of tlu' interpretation clause ; and Ave could not l)e
required, where the question was not one of scrutinj.', to
investigate at the trial any corru])t practice, not chargci'
in the petition, against the candidate or his agents. "\Vo
have in this another reason against I'eceiving evidence
upon an}' allegation of illegal practices except those
pleaded ; but it may of course, and often does haiipenthat
while the proof falls short of sustaining the full charge, it
may disclose a corrupt act, or illegal [uactice, (if both
expressions need be used) very proper to be considered in
coiniection with others.

I was at one time inclined to think that the term
" iUegal 2'>vacf ires," used in sec. loO might Ix; intended to
denote something more than the words " illeg:'.' acts"

i> hi

WEI.LANl).

4().'>

which are those used every where else, as in sees. 154 and
174, and as perhaps designed to point to a class of acts or
coiu'so of conduct to wliich a i)articular act miglit beloiio-.
But as the draftsman of the section has adopted tlie term
"corrupt act" to exi)ress what is elsewhere always called
a " corrupt ^^rac^/cc," I conclude that the words "practice "
and " act " arc considered interchangeable. It may be a
question whether even this liberality gives a meaning to
the words " corrupt act " in this section, because that is
not the term defined in the interpretation clause.

Without professing to lay down an exhaustive rule, I
may sum the mattei- up by saying that upon the trial of a
petition which seeks to avoid an election for corrupt prac-
tices alleged to have been connnitted by a candidate or his
agents, I am of the opinion that the petitioner caimot insist
on giving evidence of any corrupt practice which he has
not charged, and for this purpose illegal acts are corrupt
practices. But whether the evidence given upon any
charge is sufficient to establish it or falls short of doing so,
I think any facts or any course of conduct sliewti by that
evidence may be properly considered in connection with
any other corrupt or illegal practice which has been proved,
and the nature or probable extent of which it may serve
to elucidate.

We have been urged, with much earnestness, to hold
that the transaction with Thomas appears to have been an
instance of a systematic scheme of corrujjtion by persons
coining from outside the county, supplied with money,
either of tlieii" own or from some other quarter, foi- use in
bribing voters, or that at all events such a scheme is shewn
to have existed, and ought to be considered as against
the saving operation of section loO.

The Thomas and Mclnnes affair does not by itself furnish
materials for more than suspicion of an organi?:e<l .scheme.
It' we take Upper to have been the real actor, and the
stranger onl}-- his instrument, we are absolutely confined to
the one transaction, because it is the oid}'^ thing in which
Upper appears. And the same thing must be said of our

■pr

;S*,

I? I ■■ •

F 'I

t' -11 p

406

PROVINCIAL ELECTION.

stranger unless he is, by the indirect effect of some of the
evidence, connected with other people who have beon
before us. One person with whom it is suggested he may
have been connected is John Nihan ; another is Frank
Maguire. Both of these men live in St. Catharines, and
both of fhem are shewn by their own evidence, as v/ell as
by that of other witnesses, to have been in the county on
polling day, having money with them, having come theie
on account of the election, and being of the same political
party with the respondent. Maguire had been a number
of times in the county during the week before the election,
usually going home to St. Catharines at night and return-
ing in the morning. He appears to have spent his time
chiefly at taverns, where he invariably treated all present ;
being, as expressly shown with reference to one occasion,
and as sufficiently indicated as to otheis, very lavish in
this kind of hospitality, though he says he was not more
so than is his custom at taverns, he being a liquor dealer
and looking to the tavern keepers as his customers. On
all these occasions he talked politics, advocatincr the cause
of the respondent. It is not charged that his conduct
amounted to bribery under section 149. The charge in-
tended is that he violated section 152 by corruptly giving
drink to the people who drank at his expense on thes-e
occasions.

It was objected on the part of the respondent that that
charge is not covered by the petition, which is by its terms
confined to corrupt practices as defined b}'- the Contro-
verted Elections Act ; because, while the interpretation
clause which gives the meaning of the term "corrupt
practices " as used in the Act, includes the word " treat-
ing," it is only treating "as defined by this Act or any
Act of the Legislature, or recognised by the Connnon
Law of the Parliament of England;" and " treating," it
is argued, is not so defined or recognised.

Now, as I jiointed out in the West Simcoe Case, supra,
there is really no definition of corrupt piactices contained
in the Act, in the sense in which the petition uses the

WELLAND,

407

t>Npression. What the interpietation clause does is not to
enumerate or declare what actions slmll be corrupt prac-
tices, but rnerelv to define the nieaninj; to be attached to
the term " corrupt practices " when elsewhere used through
the Act.

But taking the petition to charge all those things men-
tioned in the interpretation clau.'<e, the (juestion is, whether
there is any offence known by the name of treating ; and
if there is, wliether that is the offence mentioned in section
1 ')2 of the Election Act.

We held when this objection was taken, that it must
])ievail for the reason explained in our judgment in the
]\'cst Simcoe Case, that our Acts contain no definition of
treating such as is found in the Imperial Act 17 tfe 18 Vic,
cli. 102, sec. 4, and in the Dominion Act 37 Vic. ch. 9, sec-
i)f, which, in the definition of the offence, were not fol-
lowed by the Provincial Act 39 Vic. ch. 10, sec. 1, which is
oiu" present section 152,

It has been urned that we ou<dit to find a meaning for
this Avord '■ treating " in order that no word in the inter-
pretation clause may be silenced. If we should attempt to
do this, it does not follow that we should apply it or confine
it, to (section 1,52. Tliere are other sections which deal with
matters that fit the term "treating" in its popular sense
<inite as well as anything in section 152, and in .some cases
even better. Section 157 fof instance, the subject of
Avliieh is selling or giving sj)irituous or fermented liquors
or stiong di'iidc at a hotel, tavern, shop, or other place
within the limits of a polling sub-division at any time
during polling day. And sections 151 and 158 deal with
some acts to which the popular term may as well be applied
iis to anvthing in section 152, while all those three .sections
embrace matters that in common parlance w^ould not be
•spoken of as tieating.

We are not likely to impair the ettieiency of the laws

against corrupt practices by hdlding that no signification

can be assigned to this word "ti'cating" as u.sed in the

interpretation clause ; because eveiything which can be con-

52 — VOL. I E.C.

fi^nr

408

rnOVIN'CIAL KLKCTION.

-ir

joctiirod as intended to be denoted by it is already luaiic a
corrupt ])ractice, except only the violation of section l.")7
on polling day before or after the hours ori)ollin^; and if
we slif)nld by construction hold that to be treating, jtiid
therefore a corrupt practice, wesliould be manifestly d(iiii<r
what the legislature never meant us to do.

Tlu^n as the corrupt practice foi bidden bj- section 152
is not charg-cd, and as we could not consistently with our
judgment in the West Suucoe cdse., allow it to be charged
at this late day, no evidence concerning it was propoly
,.->.- ivnble, and that which was given, if it ought to \h^
1 '' '<■ all, can only be taken into consideration so lar as
io ui ,y coiuiect itself with some other charge on the record,
either as aiding to prove it or as going to show the nature
or I teiit he offence.

I am ]..()i. <ii,s[ 'cased by being saved the necessity at pi-e-
sent of deciding what is the precise effect of soetioii ir)2.

I h.Mve entertained and have once or twice intimated the
impression, that the acts forbidden by that section are only
made illegal when committed by a candidate, or by some one
acting under a more direct deputation from him than what
has been considered siifhcient to constitute an agent for
the purposes of the electioti law. Undei' the Imperial Aet
17 t 18 Vic. ch. 102, sec. 4, and the Dominion Act ')7
Vic. ch. 9 St c. 94 by which it is declared that the candiilate
who corruptly by himself or by or with any pei'son, oi' by
any other ways or means on his behalf, * * gives, kc.,
shall be deemed guilty of the offence of treating, and shall
forfeit, &c., it is clear that the candidate alone is liable to
the penalty. This is recognized by several decisions, oiic of
which is the Bodmin Case, 1 0"M. & 11. ll7,where\Ville^, J.
discusses this and other clauses of the P]n<jlish statute ; and
it is recited in the late Act, 4G & 47 Vic. ch. ;V1 see. 1,
which extends the prohibition and the penalty to all per.Mius.
But while the candidate only, and not his agent, could lie
visited by the i)unishment, the election was avoided for a
breach of the section comuntted throuoh an afjeiit for
whose acts in that pai'ticulai- the candidate was respoiisilile.

WELLANI).

400

This was luid down by Mr. Justice Willes in tht; Iknluthi'
Case, as tlio oli'uct of section liii of the Iiii|ierial statute-
wliicli avoided an election for any corrupt practice com-
mitted l)y a cundi(hite /*// h'nnsdf i>r hi.'< (t<j(tn(s. It secnis^
necessarily to follow from the similarity of the ian/^uago
in the two sections that an act done liv a ca n(l'i(l,iii' Ini Ins
(Kjettl, in violation of'this provision, wliicli avt)ided the
election, would also make the candidate pehsonally luililo
to the penalt}' attached to the same actdijnehy the en mil-
date hij anu pcrso)!, or by any other ways and means on
kis behalf ; w result one can scarcely suppose to Ic i)itended
if the an'cncy is only of the constructive kind, which wo
hold sufHcient in other cases.

The distinction between an a<;-ent under the election
jaws and an agent in ordinary busini ss affairs may con-
sist, as has often been pointed out, b(;th in the mode of his
appointment or the things from which his appointment
may lie inferred, and the extent 'o which his principal is
liable foi- his acts.

In an election contest the candidate is ordinarily affected
by the acts of the agent although they are unlawful, and
even although they are contrary to the ex[)i'ess instiuctions
given to tlie agent. It may follow from this docti'ine that
the candidate becomes liable to the pecuniary jtenalty for
treating if his agent, contrary to his orders, connnits the
offence. I should say it must so f(dlow, if an act done by
every one whom tlie election law calls an agent is an act
done by the candidate by some uther person. This would
be a hai'.sh law, and I do not know any case in which it
has been neces.sary to dcciile whether or not th(! doctrine
of agency must load' to it, Uut if it is the logical result
of the Imperial Statute, sec. 'Si), I am disposed to think it
does not nccessarilv follow from our laws as found either
in .sec. 101 of the Dominion Act, o7 Vict. c. 0. or sec. lo8 of
the Election Act of Ontario, R. S. O. c. 10.

The language of those sections diffei's from that (»f the
Imperial Statute 17 & 18 Vict. c. 102, sec. 3(j, in thif*
re.spect : in.-^tead of avoiding the election for acts com-

I; Ji''

410

I'HOVINCIAL ELhX'TION.

mitted by the candidate by himself or his agents, which is
the language of sec. 36, our statutes give that effect to
corrupt acts committed by a candidate or by his agent,
apparently treating the act of the agent as not necessarily
the act of the candidate.

Again in sec. 154 which is not copied from any English
Act, we liave the agent separated from the candidate by
tlio disqualification of any elector wlio hires a horse etc.,
for any candidate, or for any agent of a candidate.

If one of the anomalies of election agency is that there
can be an act of the agent which is not to be regarded as
the act of his piincipal, we have a ease in which an agent
may commit acts such as a candidate is forbidden by
section 152 to commit, and yet not be guilty of any illegal
act, i)iasmuch as the section does not reach him.

Our. sec. 152 differs from the fmperial and Dominion
Acts by dropping the designation of the offence as the
oflence of treating. In place of that it declares that '" every
person so acting shall be deemed guilty of a corrupt prac-
tice." I apprehend that we cannot read these words
" I' very person " in this penal clause as including any one
except those forbidden to do the act, namely, the candidates.
In this respect, therefore, there is no material difference be-
tween our statute and the other's. 1'hey all make the
candidate liable to the j)cnalty in case the offence, whether
called "treating " or simply declared a corrupt practice, is
connnitted by him, by himself or through his agent. If not
committed by the candidate personally or by one who can
so bind the candidate as to render him liable on an infor-
m ition for the penalty, then I do not understand it to be
cuuimitted at all. If every one who is, under the doctrines
applied to the election law, called an agent must be held
to be an agent whose act is the act of the candidate for the
purpose of sec. 152 as well as for all other purj)0.ses, which
may, after all, be the true conclusion to adopt, a good reason
njay be shewn for applying a less liberal rule than has
been usually acted on to the inquiry whether, in any parti-
cular instance, agency has been established. At present,

t J

WKLLANM).

411

as I have said, f am not displeased tliat the necessity for
layinj:; down a precise rule does not arise.

lint while we are not in a position refj^ularly to discuss
Maguire's agency with reference to the charge of violatiufj
section 152, by reason of our ruling that that charge does
not appear on the record, it is ui-ged that what appeared
(lurint; his examination at an earlier sta^e of the trial is a
reason for holding that his expenditure of money in trent-
ing at the taverns should be taken to be part of the scheme
of corruption which is alleged to have existed.

He avows comingto do some electioneering for the respon-
dent, though he says he did not know the respondent, and
that gentleman says he did not know Alaguire. They were
co-religionists, both belonging to the Roman Catholic
church. Maguire obtained from several persons the names
of voters, and he tells ns he called on ten or fifteen persons.
Some names he obtained from a young man named
Schuman, in Port Robinson ; some from John Guinter, who
appears to have been an agent ; and from Mr. Bennett, who
would perhaps also be held to be an agent if his agency
became material, he obtained the name of the elder Mr.
Mclnnes, who was, as I understand, the same person to find
whom Benjamin Upper made his detour with the m3'.steriou.9
stranger, I do not recollect whether Maguire saw Mc-
lnnes or not. He tells us he used no persuasion with any
one but talk. I imagine the people on whom he called
were Roman Catholics, but I am not sure that we were so
told, except with reference to Mclnnes.

There would be a jjood deal of difficulty in holding that
Maguire, who was not a voter or resident of tlu^ county,
and who had no personal relations with the candidate, and
was not working with his knowledge, ought, by reason of
anything I have mentioned, to bo held to be an agent for
all whose acts the candidate ' fight to be responsible. He
may have been constituted an agent by what may be
regarded as his deputation by Guinter and Bennett to can-
vass particular voters or a particular class of voters. But
that would be only a limited agency. (Per Lush, J., in the

412

JMtOVINCIAL ELECTION.

< ',• -«

II f

'! !

Jhirwkh Ca.HC, '.] U'M. & JT. fit p. 70, and Willos, J., in the
liudmJn Cane 1 O'M, i"t H. at p. 120.)

Notiiing njipcarod iVoiii tliis uvidonce from whicli I
could say tliat his troatiii',' at the taverns, wliiclj is the
only use into which Ids nionc^y is traced, was corruptly
done Ly the candidate 1)y ^lai^aiire acting on his behalf.

That (juestion, of course, is not now for decision, and if
it -wore, we do not know that more evidence nii<,dit not
have been i^ivcn upon it. Jhit if there was tenable oronnd
for connecliuijf ^Maguiro with the strangei-, or holdin;,' that
any part of liis nione}', or nionc^y IVoin a common fund with
his, was used in the expedition to the Mclnnes farm, I do
not doubt that his conduct throughout might faii'ly be
taken to indicate the nature or to .suggest the possible
extent of the corrupt act which was then committed. The
onlv .sembl;vnc(M)t' connection is, that Beimett gave Mafifuirc
the name of iMcIunos as a ])orson wdiom he might see, and
that a man whom no one knows went on polling day to
see Mclunes, but did not see him.

There are too many links missing to enable us to say
that such a connection could safel}^ be inferred.

I regard the case of John Nihiin as more serious than
that of ^biguire. I'hat his purpose was to ini iience the
election by corrujit means I do not doubt. He says he
came to bet on the election, and I infer that the betting lie
inteniled was betting as an engine of bribery. There is
nothing in the character of his pursuits, a>, described by
himself, or in such portions of his biography ns were
elicited from Inm, oi- in the circumstance of Ids turning up
on the polling day and eufpiiiing for doubtful voters, and
spending his day in the neighborhood of tlie poll, or in his
evasion of service of the sul)pi)ena, tc repel such an infer-
ence. But, if ho took any active steps in pursuance of his
plans, he managed to conceal them so well that no one has
been able to tell us of anything he did in that direction,
and his own account is that he gave no money to any one,
except for bis mods at the hotel, cigars, <S:c.

The only bet we liear of is fi-om Nihan himself, Avho says

WELLAND.

118

111- l)ot with a siipporhM" of the onndld.ito to wliniii lio wna
i))i]i()S('(l that tliat caiulichitn woulil iK)t h.'vo a niajority »if
ci^htA', which was not tlie form of a l»i-ih<' im tlu; iiittTost
of tho r('sj)()ii(U'iit.

\Vhat<'V('i' we may siinnisc, thorcforc, to h;ivt' been
INilian's olijcct, \v(! are totally without ovidonco of his
hoiiig concerned in doint; anytliinj^' ilie:,'al.

Tho result of all wo know of tliese thr(!0 men snoins then
to he, tliat one of them, who is not identifi'.'d, hut who was
not Nihan and wmis not MML;uir(>, and who is not shewn to
liave had any money, otlered, liy words only, to pay money
to Thomas to vote or refrain from votinjj,'; that Nihan, who
had money, and who eanie with the intention of using it
cnrruptly, is not shewn to havt; so iis(>d it, or iiny of it :
and that Maguii'e, who did s[tend money in a somewhat
lavish manner in treatin<x, doubtless with the ohiect of
inoratiatin;^' himsiOf witli those whom ho met, and makinu'
them mor(! aecessihle to liis arti'innents in favour of tla^
respondent, is not shewn to have violated any prohibition
of tlie Kleetion Act; that there is no coinieetion, beyond
their eoiiunon purpose; of aiding the respondent, shewn
het'voen tlu! men ; and, therefore, there is no condui;t
shown on theii- ](art which wo can deal Avith as an illegal
pi'aetice ftir the purpose of considering it in connc'.'tion
M'ith the coi'j'upt practices that have been established,

I believe the only other matter re(iuiring notice is, an
irregularity in tho respondent's account of his personal
expenses, which are not given in detail as i'C([uircd by sec.
1<S(). Wc are asked to infer IVom this default that some
part of the sum of SlU:] was s])cnt in corrupt p;,. _^tices.
No such penalty is imposed by the statute. Tht> law (h)es
not conqycl us to draw any such inference ; and, as a mat-
ter of fact, I believe it would be wrong to draw it.

The result is, that we determine that tho I'cspondent was
duly elected. Tho costs do not follow this evenc ; Init,
under section 100, they have to be <lisposod of as if
the event l>ad been the setting aside of the election. Tho
respondent must pay the general costs, wdiich of cour.se

is I

1 1!

>'r %

414

PROVINCIAL ELKCTION.

m '<

will include the full oosts which woul 1 huvo hcfii (axnlilc
if the only chiirj^^es had hcen th(),s(! on which thr |> titiftiH r
huK succeeded, viz., those; rchitiuf,' to Thomas, to Mfdin<;aii,
ti) the two WMj^^ners, to JVlorniiii(staiand to Chafiey. With
rcfjard to the other chari,'e,s on which the \)v er failed,

the rule we have hitherto lollowt'd has het .. to f,'i\(« tin;
costs touching them to the res|)ondcntajj;aiiistthe itetitioiicr.
We did HO in the West Slmcoe C((se,Hupr<i, and in thi> Pffn-
cott Cane, ante HH, taking as our guide the North Jieiifreii'
Case, H. E. C. 710, 724, where Wilson, C. J., distrihnt.Ml
the costs on that principle, which principle seemed also to
have been recognized as correct by Sir Win. B. Richards,
in the Juust Toronto Case, H. E. C. 70, !)7.

It is now urged that the proper way to deal with thcsi>
costs i,s either to direct each party to pay his ow'n or sinipiv
to give the petitioner the general costs of the petition.

In cases arisin- ander the Imperial Controve-*'ed Elections
Act which are to be found in the thr ohnnes of
O'Mallrij it- lldvdcaHtles Reports, and nios^, >\'hioh an;
noted at p. 1(5.) of Mattlnson Jj M icasldes Treatise on
the Law relating to Conupt Practices, the general rule ccr-
taily seems to have been to leave each party to ))ay \\\^
own costs of the class of charges in question ; though like
other general rules, it is not always applied without varia-
tion or exception. Each case is, of course, no more than
an instance of the way a J\idge or two Judges exer-
cised the discretion given them by the law ; but such in-
stances are useful as showing what in the o])inion of
thoughtful and experienced men was a sound exercise of
disci'etion in the circumstances before them. The practice
which leaves each party to pay his own costs of the charges
on which a petitioner fails, while he succeeds on the whole
petition, has some sanction from section 97 of the Contro-
verted Elections Act, where it speaks of regard being had
to the disallowance of costs caused by unfounded allega-
tions or objections ; and upon the whole, a strong case is
made out for that course being adopted.

The charges on which, in this case, the petitioner failed

' mm

Wi; I.I.AM).

415

cannot )«• called frivolous, !vn<l there was quite enon^^lr
evidence <,Mven on nuiny of tliiMn to convince us tliiit there
was nothinLj ve.VHtious in preferring them. Tlit' ((Uestiou
is why the *^oo(l faith of tlu; petitioner should .suhject the
iTHpondeiit to the cost of deffiidinj^ hinisoif or his seat
a<,'ainst an attack founded on mistaken suspicious or
iniperfcct information. If the charges which failed had
l)een the oidy ones, the rcspondimt would have got hi»
costs as of course. One does not readily .sec why he should
lose them heeause these charges happeniMl to he associated
with some others which he could not successfully resist.

The nature of our local election law which treats as cor-
rupt practices .some acts which are not tainted with
corruption and whicli may have no influence, either in
fact or in intention, upon the election, affoids a reason
against the recognition of what may be a general practice
in England, as applicable to the .same extent here. To
take a case which maj' be an extreme one, but which
experience shews is not either impo.ssible or unlikely, that
of a tavern keeper, who happened to be an agent under the
election law, giving a glass of liquor during the hours of
polling to a political opponent who ha.s already voted.
Pi'oof of such an act, though by the effect of sec. loO it
will not avoid the election, entails the .same costs as if it
(lid avoid it. If it happened that the only charge estab-
lished by a petitioner were one of this character, while lie
lie had made and failed upon numerous charges of actual
corruption, there could be no justice in refusing costs of
tliose charges to the respondent.

The general rule .spoken of as prevailing in England
ought not, in my judgment, to be reganled as sufficient to
meet the requirements of our local law. The reason for
tliis which I have just given is from the standpoint of a
respondent. But there are also considerations that may
affect the application of the rule from the point of view of a
petitioner w' o, after having established a corrupt practice
connnitted by an agent, may find the necessity imposed
upon him by section 159 of carrying the inquiry farther.
53 — VOL. I E.G.

■m

•'•,' .'/i

1*'

416

PKOVINCIAL ELECTION,

In ordinary cases, I am inclined to think that justice
will be done by disposing of the costs as we dealt with
them in the two cases to which I have referred.

In the present case, however, there is no doubt that the
zeal of some supporters of the respondent led them to
courses of conduct which ran very near the line of illegal
acts, and the instances in which this occurred formed a
tolerably lari^^e proportion of the charges which failed.
Some of the more strikinjj cases have been discussed in
the ju'lgment now delivereil ; but there were others, such
as that with which Dr. Glasgow was associated, and several
more in connection with which we became familiar wit'i
the names of McAuliffe, Moyer, Levis, Deterling, David
Crysler, Schloeffel, Washington, Young, &ic.

Under all the circumstances we think it will be a sufiici-
ent jienalty for the petitioner to bo deprived of costs in
respect to the char-gcfi on which he gave evidence but
failed, leaving the respondent to bear his own costs of those
cliargos.

There were a good many charges concerning which n«
evidence was L'iven. We know nothino- of the character
of those charges, and we do not know whether or not the
resj)i>n<leiit was at any expense, which coulvl be recognised
as titxable, in prejiaring to meet them. He will have hiv
costs (if any) incuired in relation to them.

Fekguson, J. — The charges that the petitioner contends
have been proved, and which are yet umlisj)osed of, are :
chargos Nos. 4, 5, and G, in pai'ticuluis No. 1, which are
that Hcnjamin Upper ottered money to William M. Thomas
and Samuel Mclnnes respectively, to induce them respect-
ively to vote for the respondent, and that the said Benjamin
Upper paid money to Samuel IMclnnes to induce him to
vote for the respondent.

Charges Nos. 52, 53, and 54, in the same particulars,
which are : that the respondent ])r()mised to procure liquor
licenses for Thomas Roach, Hiram Chambers, and Bradley
Chambers respectively, to induce them respectively to vote
for the respondent.

WEI.LA.ND.

417

Charges Nos. 5, G, and 7, in particulars No. 2, which are :
that Luther Board man offered money to George Haun to in-
duce him to vote for the respondent : that the said liUtliov
Boardman paid mone\' to the said Ilaun to induce him to
vote for the respondent, and that the said Luther Board-
man furnished refreshments to the said Haun to induce
him to vote for the respondent ; and

Charge No. 1 of particulars No. 3, which is that the
respondent promised Luther Boardman to procure, or
endeavour to procure the office of license commissioner for
the county of Wei land for a person unknown to the ])eti-
tioner to induce the said Boardman to procure^ or endeavour
to procure the return of the respondent to serve- in the
IjOgisJative Assembly,

As to charges Nos. 4, r> and (5, in particulai's No. I, it
was shewn that Benjamin Upper on the polling day started
alone from Alienljurg, a jiolling ))lace, and having gone
about one hundred }'ards, overtook a stranger, who asked
him to give him a ride, which he did ; that they were going
towards Port Robinson, and at the toli-gate they tui-ned
and went to Mclnnes' place, a short distance from the
direct road ; that the stranger went in and saw the young
man Samuel Mclnnes, and asked him if he had a vote, and
being answered in the affirmative, asked him if he intended
to vote, and being again answered in the affiiiiiative, came
away ; Benjamin Upper during the time remaining upon
the road ; that they then proceeded towards Port Bobinson,
and met IMiomas on the way, when the stranger asked
Ujtper who Thomas was, and Upper told him ; that the
stranger then called to Thomas to stop, and that, when he
did so the stranger went to him and offered him !?o, and
afterwards double tliat amount, to refrain from voting (to
stay at home). Thomas swears that Upper did not off'ei"
him anything. It is not shewn that Upper heard the
stranger make the offer. Upj)er swears that he did not pay
or offer either Thomas or Mclnnes anything : that he did
not hear the offer made to Thomas ; that he did not know
that it was made, and that he did not make any inquiry

'^1

418

PROVINCIAL ELECTION.

i{ti

h iii.i t

I'll

as to what had passed between the stranger and Thomas.
Mclnnes swears that tlie stranger did not offer or c[ive bin
anything. It was contended by counsel for the petitioner,
that the inference should be drawn that Upper knew wliat
the stranger was doing; that he was a party to the stranger's
acts, and that the act of offering the money to Thomas
was .as i::uch the act of Upper as of the stranger, and tliat
the charge of the offer of money bj' Upper to Thonms
was proved. (The charge is the offer of money to vote,
but a very slight amendment would make the record ri^lit
if the evidence were sufficient.) This inference I do not
draw, and I do not think that in the face of the testimony
to the contrary, it should be drawn : and, I think the find-
ing in respect of these charges should be, that no offer or
payment of money is shown to have been made by Benja-
min Upper.

As to charges Nos. 52, 58 and 54, in the same par-
ticulars, I think the petitioner must fnil. Both the
Chambers and Roach positively deny that any sneh
promise was made. Henderson does not really prove any
thing in respect of such a promise, and a finding in favour
of the existence of the promise charged, would be, in my
opinion, a finding against the evidence. I think these
charges should he disposed off' in favor of the respondent.

I am also of the opinion that the charges Nos. 5, G and 7
in particulars, No. 2 must fail upon the evidence, and be
disposed of in favor of the rcf-pondent.

I am also of the opinion that the evidence does not support
charge No. 1 in particulars No. 3, and that this should be
disposed of in favour of the respondent.

The case upon the petition has now to be considered.
Charge No. 49, the payment of the travelling expenses of
a voter, John Mahagan, by Twohey and Flynn, agents of
the respondents, has been proved and found in favor of
the petitioner. This is the only corrupt practice proved
against the respondent or t.ny of his agents. This was
found to have been committed b}- the agents without the
knowledge or consent of the candidate, the respondent

r ;;

WELLANI).

419

iH;

The act was the payment of the travelling expenses of a
votor who was temporarily absent from the country, and
who, it is fair to assume, would not otherwise have voted
on either side. This act seem.-, to me to stand alone. It
does not appear to have been a part or parcel of any sys-
tem or method of corrupt practices; or, as having any
connexion with other acts of the same character. Its
effects seems to me to be confined to this single voter, and
I ain of opinion that taken alone, this act was of such
trifling extent, that the result of the election cannot have
been, or cannot be reasonably supposed tc; have been affec-
ted by it.

This corrupt act caimot, in this case, however, be taken
alone, for the provisions of the 159th .section of the Act do
not, unless the act was of such trifling nature, or of such
trifling extent that the result cannot have been affected, or
cannot be reasonably supposed to have been affected by it,
eitlier alone or in connection with other illegal practices at
the election, save the election from being avoided by reason
of tlie corrupt act of the agent, though without the know-
ledi^e or consent of the candidate, and a question arises hero
as to what illegal practices are to be taken in connection
witl) the one corrupt act of the agent.

1 am quite sensible of the difticulty in saying what is
the projjcr meaning of the words " other illegal practices at
the election," which occur near the end of the section, and
that, differences of opinion may well exist as to what is
thv'w true meaning and application, but I think one is safe
in saying that they must be illegal practices, the existence
of which is ascertained and known, and that the way in
which their existence becomes known is by the evidence.
This cannot I think rest in conjecture. It must be proved.

Lining the trial in this case while evidence was being
given m respect of a'leged treating by a man named
MeGuire, an objection was taken to the receiving of the
evidence, and, following a ruling in the West Simcoe Case,
ante 128, it was decided that the evidence could not be
received unless taken conditionally, and the petitioner's

I •:

ji'i,

!( I

111 i.

420

PROVINCIAL ELECTION.

counsel declined so to give it, but, offered it as orood evi-
dence. The petitioner's evidence on the subject had not
been completed, and the respondent gave no evidence on
the subject at all. It was, however, contended that be-
cause in this evidence, so partially taken, certain facts
were sworn to by witnesses, these must he taken as ille^^al
practices fif they were such) in connection with the cor-
rupt act of the agent. I am not of that opinion, and, I
think the case stands just as if no evidence had l»een given
on that subject.

It was also contended that the fact that a man named
John Nihan was in the constituency with some monej'- in
his possession must also be taken in connection with the
corrupt act of the agent, but it was not shewn that Nihan
did any illegal act with the money. On the evidence of
Mr. Coppin. this appeared a proj)ei' subject for further in-
vestigation. The petitioner called Nihan as a witness.
His evidence shewed the charge on which it was given to
be without foundation, and that he had not been guilty of
any illegal act, and this testimony remains uncontra-
ilicted. 1 think, ho\vevei', that whenever in giving evidence
to prove a corrupt practice charged as having been com-
mitted by an agent, it appears that illegal practices took
place, though the evidence failed to prove the agency, these
illegal practices are comprehended in the meaning of the
words " other illegal practices at the election," which occur
near the end of the section, and must bo taken in connec-
tion with the corrupt act of the agent. If this were not
so, I do not see how anj' " other illegal practices" could,
under the present mode of pleading, be made to appear to
be taken in connection with the corrupt act pv( "ed to have
been committed by the agent.

Looking at this case, then, in this way, the corrupt act
proved to have been committed by the agent without the
knowledge or consent of the respondent, must be taken in
connection with the illegal practices (1) The giving of
spirituous liquor by Boardman to Chaffey at his tavern
within the polling sub-division during the hours appointed

WELLAND.

421

for polling. (2) Three acts of Caleb Doane, the payment of
a small sum of monej' to John Wagner and Jacob Wagner
each, and the offer of money to Michael Morning.star to voto
for the respondent, and (*J) The fact that a stranger offered
money to Thomas to refrain from voting at the election.

Each of these illegal practices seems to me, upon i\ut
evidence, to bo of very trifling extent. That committed by
Board man was the giving of a single glass of liquor to om^
who was > pposed to him in politics, who had already voted,
and who was a neighbour, and asked it because, as he said,
he was ill. The acts committed by Caleb Doane were of a
petty character, and it is noticeable that he seems to have
acted dishonestly, even in regard to these small sums, with
those to whom he gave the money.

The act of the stranger, or the stranger himself, I know
nothing of, beyond what has been stated. On the whole
case, I am of the opinion that the corrupt act proved to
have been committed by agents of the respondent without
the knowledge or consent of the respondent was so trifling
in extent tliat the result cannot have been affected by it,
either alone or in connection with the other illegal practices
at the election that have been shewn to have taken place,
and I think the election should not be avoided.

I do not see that anything turns upon what was urged
respecting non-compliance with the provisions of section
186.

I agree in the disposition of the costs made by Mr.

Justice Patterson, under the provisions of section IGO of

the Act.

(J. A. R

r*^ I

422

PROVINCIAL ELECTION.

LENNOX.

PROVINCIAL ELECTION.

'* » '

*' it

Re Hamilton, Petitioner, v. Thompson et al,, Respondents.
Before the Court of Appeal.

Present. — Hagarty, C.J.O., Burton, Patterson, and Oslkr, JJ.A.

Toronto, ^h May, 1885.
23rd June, 1885.

Controverted Elections Act, R. S. O. ch. 11 — Corrupt practices Election Act,
R. S. 0. ch. 10, sees. 174,175 — Appeal from special Court for aummary
trial of corrupt jiractices.

The right of appeal given under section 63 and following sections of the
Coutrovortud Elections Act, R. S. O. ch. 11, does not extend to
decisions either of the Judge or Judges for the trial of the petitions or
other Judges sitting as a Court for the trial of corrupt practices under
sections 174 and 175 of the Election Act R. S. 0., (1877,) ch. 1) ami
amendment.

Observations upon anomalies and difficulties in the procedure. .

An election petition was presented, pursuant to tlu'
Controverted Elections Act oi' Ontario, by A. G. Haini'toii,
as petitioner, against George D, Hawley, as respondent, in
respect of an election held for the electoral distiict of
Lennox.

In the course of the trial of the petition before the two
rota judges assigned for that purpose, it appeared from
the evidence that Kobert Thompson, Ezekiel Miles, and
James O'Brien, had been guilty of corrupt practices in
connection with the election, and at the instance of the
petitioner a summons was granted by the judges, pur-
suant to section l7o of the Election Act, or 47 Vict. ch. 4,
sec. 81, "The Election Law Amendment Act, 1S84," calling
upon these persons to appear before the Court con-
.stituted for the trial of corrupt practices and other illegal

LKNNOX.

423

acts coimnitte:! during the election, to answer the charges,
antl to shew cause why they should not be adjudged to be
ffuilty of the corrupt acts or practices specified, which con-
sisted of nineteen disiiuct acts of bribery, alleged to have
been jointly committed by them. And further, to shew
cause why they should not be ordered to jmy the penalty
imposed by the Election Act for the committing of each
of such corrupt acts, &c.. and why, in default of payment,
they should not be imprisoned, and why they should not
also pay the costs, kc.

After several adjournments the sunnnons was finally
heard and disposed of on the <Jth of March, by and before
tlie judges by whom it was granted.

The prosecutor abandoned four of the charges, and, as
.stated in the appeal book, the judges then determined
and adjudged that Thompson, Miles, and O'Brien were
ouilty of the remaining fifteen charges, " but the counsel
for the said prosecutor electing that the said Thompson
should be found guilty of the first five of the said charges,
and the said Miles of the second five thereof, and the said
O'Brien of the third five thereof, the said judges adjudged
and determined accordingly, and the said Thompson, Miles
and O'Brien were each ordered to pay to the petitioner,
who was. also the prosecutor, the sum of S200 and the costs
of the said prcj.secution, that is to say, the sum of S6()0 in
all and costs."

The prosecutor thereupon elected, as sub-sec. 11 of sec.
175, permits him to do, to recover th(; amount imposed
upon Thomp.son and Miles by process sued out of the
High Court. He made no election in the case of O'Brien,
who was sentenced to undergo, in default of payment
within one month of the $200 and costs, nine months
imprisonment in the connnon gaol.

Against this order or decision the prosecutor appealed
under section Go, and following sections of " The Con-
troverted Elections Act,"' on the ground that the learned
judges, instead of imposing upon each of the persons
accused, a single penalty of $200, should have imposed upon

54 — VOL. I E.C.

III 1:1

if* !i

ill;

ill

■f .

424

PROVINCIAI, El-KCTICN.

If 1

l< 1'. M

i £^

M-

each of them a penalt}' of .S20() for each of the corrupt
practices found to have been conirnittecl by them, that is to
say, five separate penalties of $200 upon each of the accustil.

On the appeal comin*^ on for ai«rinneut 20th Ma}', LSSo.

Britton, Q.O., on behalf of the respondents, moved to
(juash the proceedings oti the ground that the right to
appeal under section 63, and following sections of the
'' Controverted Elections Act," was given only to one who
was a party to an election petition, and in that cliaracter,
and was confined to the decision or determination of tlio
judge or judges on the trial (^f such petition, and did not
extend to the decision of such judges or other judges sitting
as a court for the trial of corrupt practices, under sections
174 and 175 of the Election Act.

McCarthy, Q.C., Ponsseffe. Q.C., and Creelmaii, contia.

June 28rd, 1885. Osler, J.A. — The ol>jection talcon by
Mr. Briiton appears to me to he well founded.

By the sections of the Act referred to a special court of
summary jurisdiction is constituted before wiiicli
any person, who is not a party to the petition, may
be tried in a summary manner for any cor; upt practice
or illegal act c >mmitted by him in connection Avith
the election, instead of by action or indictment in the
ordinary courts of law.

That court is not the court for the trial of an election
petition, constituted under sections 82 and 43 of the ( 'on-
troverted Elections Act. It may be presided over by the
judge or judges who try the pt^tition. But it may also
be presided over b}^ any judge upon the rota for the trial
of petitions, or bj^ a judge of the High Court holding a
sittings of that court for the trial of civil or (niminal
causes.

Sub-section 1 provides that the proceedings may he
taken, before, at, or after the trial of a petition.

Sub-section 4. The judge or judges who attend to
hear the matters charged, or before whom the summons is

F.KNNOX.

425

If:
'■I 1

returnable shall " investij^ato and ilispose of" (in plain
EngliHh, hear and dotcimine) the case in a sinninnry
manner, and shall hrve the same povrer and authority
to do so as two judges sitting at the trial of ar>
election petition liave for the investigation of a charge of
a cornipt practice alleged in the petition to have been
committed bv the candidate M^rainst whom the i)etition
was filed.

Sub-section (]. The person charu<'d shall be fdlowed to
make fu'l answer and defence, \rc.

Sub-section 7. Tf the judge or judges are satisHed that
the person chargeii has committed the corrupt practices
chargfid in the summons he or they "shall a<ljudge that
said pertson has committed them," and shall order him to
pay to the i)erson at whose instance the summons was^
issued, called the prosecutor, thf money penalty I)y law
assifjned to the offence.

It thus appears that the proceeding in (piestion, a.s
regards its institution, the parties to it, the time and
mode of trial, and the constitution of the court beforo
which it may be heard, is one entirely <listinct and .separate
fi'om the election petition.

The ])etitioner or the respondent may l)e the prosecutor,
but so may any one else, and there is no reason to siiy
that, as regards that proceeding, he is or lieeome- a paity
to the petition any more tb.an the person charged be-
coniPs or can be such. It is a matter entirely collateral.

Then where do we find any provision for an appeal ?
Th(;re is nothing in the Election Act which gives it, and
it is clear law that an appeal does not lie unless tjxpressly
given. It is urged that it lies, and the present pioceeding
has been taken, under sectioi» G*? and following sections
of the Controverted Elections Act. But the appenl referred
to in those sections obviously relates to the decision of the
judges upon the trial of the petition. It can only be brought
by " any party to an election petition." It is the matter of
the petition whichis to be set down for hearing before the
Court of Appeal. It is the parties affected by the appeal

■ V.

I'i i-

i'i

f/i>

426

rUOVINCIAL ELECTION.

I; ^>

' 1
.( i

If:,.

or the aj^ents wlio represented them on the trial of the peti-
tion to whom notice of setting clown the appeal is to be
given, anil the judgment or decision of the Court of Appeal
is to be certified to the Speaker of the House, &c.

There are insuperable difficulties in the way of holdiiK^
that the case of a sunnnary conviction for eoirupt prac-
tices comes within these sections.

I therefore think that the appeal should lie ([uashed.
Whether an appeal can be taken under any other Act it
is not now necessary to determine. When the prosecutor
elects to recover " the amount imposed," by process sued
out of the High Court, the oi'der may be tiled in one of
the divisions, and execution may be issued, and any other
proceedings may be had antl taken thereon as upon an
ordinary' judgment of the court. Whether this would
include an appeal in the ordinary way is more than doubtful,
and certainly there would be no appeal where imprisonment
is ordered in default of payment, as in that case the order
is not filed in the High Court. It may be that the pro-
ceetlinii being of a summarv character can be brouirht up
and reviewed on eertlordrl according to the dictum of
Abl)ott, C. J., in Eex v. Hanson, 4 B. & Aid. olS), .521.
" The rule of law is, that a certiorari lies unless expressly
taken away, yet an appeal does not lie unless expressly
given by statute."

This case affords another illustration of the necessity for
a well considered revision and consolidation of the election
law.

It is not reasonable that proceedings which so seiiously
afleet a man's liberty or estate should not be subject to
appeal as in ordinary cases, nor on the other hand is it
right that persons guilty of such gross and abundant
bribery as the respondents, should escape as it is said they
have escaped here, the full and effectual punishment due to
the offence.

There is a strange anomaly in excluding the parties to
the petition from liability to the proceeding by which the
penalty imposed for corrupt practices or illegal acts may

LENNOX.

427

be enforced l)y iinprisoniuont ; ami it is also roniarkaMo
that while it is anxiously i)roviilc(l tliat alNsi^'ations in a
petition of corrupt practices a^jainst a candidate or \\\h
agents shall be tried by tiro judges, who must now con-
cur in finding guilty and discpialifying, ((Controverted
Elections Act, R. S. O. ch. 10, s. I3S, as amended), any one
not a party to the petiticm may bo proceeded against for
similar charges belbre ove judge only, who by sub-section
7 of section 175 as amended by V? Vict. ch. 4, sec. .SI, may
adjudge that such person has connnitted corrupt prac-
tices, &c.

Section 38, too, of the Controverted Elections Act, as
amended by section 33 of the Act last referred to, expressly
enacts that no iieraon shall be lound guilt}' of a corru])t
practice, or disqualified, except upon the decision of two
judges jointly, or of the Court of Appeal; an enactment
not incon.sistent with summary proceedings under sec. 17-'>
as it formerly stood, which must have been taken befoio
the two judges mentioned in .section 174, but which is not
so eas}'' to reconcile with the new section.

The question will also no doubt arise whether a sunnnary
conviction for corrupt practices by one judge is such a
proceeding — having regard to section 38 of the Contro-
verted Elections Act — as under section 104 of the Election
Act, disfranchises any person other than a candidate found
guilty of corrupt practices.

Hagauty, C. J. O., Blmiton and Patfehson, J.T.A. con-
curred.

, Appeal quashed

f. 'i

42S

DOMINION ELliCTlON.

LINCOLN AND NL\(}ARA.

DOMINION KLKCTION.

Befoue Osr.Kit, J. A., in Chambers.

Toronto, June. :J« and Ju!-; Jf, 1SS7.

William King Pattison, Petitioner, v. John Charles
Ry k ert, Res])o mien t.

Election pitition — Uiuivthorhed alteration - liatiJicidion—AmtndmerU

After an election ])etiti()U luul l>cfii filed, two clerks of the 'i'Dronto ajjciits
of tlic solicitor for tlu; petitioner were allowed to coinjiare it witii an
engrossed coi)y, and lindin^r that tiie two were ditFerent, they altt ri'ii
the filed petition so as to corresponil with the coj)y, addi;Mr in one pliicc
the Word " treatintj," which had the ctFect of introducing a • liarge of a
corrujjt practice not in the original, 'j'he copy served upon the respon-
dent aftci' this alter.ition correspondetl witli the petition as altered. It
was not shewn and it was denied that the petitioner knew of tiie alter-
ation.

//e/(/, that the addition of tlie word "treating'' was an alteratidu in a
material part ; hut tliat the clerks in doing what they did were not tiie
agents of the resi)ondent or iiis solicitor. As the document was in the
possession of tiie Court, such an alteration, made hy persons who were
mere strangers or spoliators, had not the eti'oet of destroying it. The
service of the petition in its alterei condition could not, in the ahsenee
of knowledge of the alteration, he treated as a ratification hy the
respondent.

It was ordered that the petition sliould be restored to its original state,
and that the copy served siiould he amended to conform with the peti-
tionas it was when filed. *

Tins \. as a motion on behalf of • < titioncr made be-
fore Osier, J. A., in Clmmlx-rs, to vo out the pr minary
objections to this petition, The , dion ^v !s turned into a
hearing of the preliminary objection.s.

The material facts which led to the filing of the prelimi-
nary objections were not in dispute between the parties,
and were as follows :

* See note at end of case.

LINCOLN AND NIAOAKA.

429

The pctitioiUT, wh(j wu.s tlio di-fcatoil canditlato at the
I'ltrtion, was Ininsult' a Ijui-ristcr aiul solicitor, Imt did not
present tlic potitittii in person.

I'nder his iiistnietioiis the petition in (piestion, after
having heen sigiieil It}' him, as reipiired hy tlie statute, was
on Satui'chiy the nintli day of A[)ril, i!S(S7, present<'d for
hiin by bein<^ (hdivered to the Ue;,dstrai' of the Court ol
Appeal, in Toronto, hy Messrs. lilake, Lash, Cassels, and
liuhnan, the solicitors for the petitioner, appointed by liint
to be his a,<j;ents in the matter of this petition.

On the follovvinj^ ^^)nday, the eh.'venth day of April.
l(S87,two students-at-hiw. eleiks in the office of the solici-
tors for the jietitioner, vveie sent by the solicitors to
examine the petition tiled ami compare a copy of it with
the original.

While engaged in this e.xamination and comparison thesi'
gentlemen noticed tiie ondssion fi'om the )>etition of any
charge of treating against the sitting niendier, and tliere-
upon inserted the word "treating," thus making the peti-
tion Hied correspond with tlu,' copy in their posst'ssion.

The origihfd j etition, as presented, was not afterwards
signed by the petitioner, but on the next day, Tucsda}',
the twelfth ilay of April, IHHj, there was served upon the
ajipellant a copy of tlu; petition, containing the adde<l
chsirge of treating, signed by tlie hand of the petitioner
himself, and accompanied l)ya notice over the name of the
petitioner, " by Blake, Lash, Cassels, and Holman, his solici-
tors," appointing that firm of solicitois to be agents for
the petitioner in the matter of the pt.'titioii.

The respondtint submitted by his pieliminary objections
that by reason of the facts above stated the petition had
lost all force and virtue, and Ijecome wholly null and void,
and shoidd be taken off the files.

McCaif/i.f/, Q. C, and Atjlei^wurtk, for the respondent.
There was a material and wholly unauthorized alteration
in a written instrument, requiring to be authenticated by
the signature of parties, which avoids the instrument :

430

DOMINION ELECTION.

m''- :''

Pigot's Case, 11 Rep. 20 h. Master v. Miller, 4 T. R. 320 :
1 Sm. L. C. 857 (8th e.l,) ; 2 H. Bla. 140; Ihividmn v.
Conner, 11 M. k W. 778 ; 13 M. & W. 348; Sufellv. Bavk
of Evfjla^nl, d Q. B. D. 555; Iavim' v. Fox, 12 App. rVr.
200 ; Bank of Uindostan v. Smith, 30 L. J. C. P. 241. Tt
was es.sential to the validity of the petition that it sliould
be signed by the petitioner: The Controverted Elections
Act, 37 Vic. ch. 10, sec. 8 ; R. S. C. ch. 9, sec. 9. The same
effect must be given to the act of the clerk as if it hfv<l
been the act of the solicitors. The solicitors have general
authority to bind their client by their acts : PiiUhuffi
liaw of Attorneys, 3rd ed., p. 102, et seq. The p:'titioner
is responsible for the conseqiances of an unlawful altera-
tion by his authorized agent : Pattinson v. Luclcley, L. E
10 Ex. 330. The service upon the respondent of a copy of
the petition in its altered state signified the intention of
the petitioner to take advantage of the alteration.

Lash, Q. C, for the petitioner, contra. The alteivition is
not a proper subject of preliminary objection. It was nob
made by any person having authority to make it on behalf
of the petitioner. The petition was not in the possession
of the petitioner, or of any one for him, but was on the
files of the Court: Saffdl v. Bank of Enqhmd, 9 Q. B. D.
555 ; Lowe v. Fod:, 12 App. Gas. 200 ; LT nfree v. Brom'ii,
G East 309. There was no ratification of the alteration
by the petitionur : Falcke v. Scottish Lmperhd Ins. Co., 3^
Ch. D. 234, 249. The alteration was not a material one ; the
general charge in the petitioii of corrupt practices includes
treating, so that the insertion of the word was mere sur-
plusage : see North Ontario Flection Case, ante p. 1.
There is power to amend the petition : R. S. C. ch. 9, sec.
2, sub-sec. 8 ; Rule 474, O. J. A. ; Rogers on Elections, eil.
of 1800, part II., p. 717 ; Aldridge v. Hurst, 1 C. P. D. 410.

OsLEK, J. A. — The circumstances imder which the altera-
tions complained of were made in the petition have been
fully exjjlainod, and it apjiears that they were not ma le
by the petitioner, nor by his agent or solicitor, nor in any

LINCOLN AND NIAGARA.

431

way by his authority. The petition had been n.'gularly
filed, and two clerks of the agents of the petitioner's solici-
tor, a day or two afterwards, went to the office of the
Registrar of the Court for tlic ])urpose of conipaiing an
engrossed copy of the petition with the petition. What
occurred there is thus stated by the clerks in their sifhdiivits.
" In comparing the said copy it appeared that in the
third paragraph the word " treating" was in the engrossed
copy, but not in the petition filed. Tlie inattt-r wa»
mentioned, when Mr. Grant (the registrar; said, " make
them correspond," or words to thai, eflfect. I assumed that
the petition should be made like the copy, and tho {petition
was accordingly in this respect made like the engrossed

This was a very extraordinary misunderstanding of what
the registrar said, who could of course have meant nothing
t'lse than that the necessary alteration should be made in
tlie engrossment, but I have no reason to doubt the expla-
nation, especially as sevei-al other minor and formal altera-
tions wero made at the same time in order to make the
hastily and carelessly prepared petition correspond with
tl»e engrossment, and it is quite ])robable that the clerks
may not have been alive to the improj)riet3' — plainly
a contempt of Court — of making an unauthorized alter-
ation in any document on the files. However this
may be, it is impossible to hold that they were in any
sense the agents of the petitioner, or of his solicitors, in
doing what they did, and assuming, as I think I should
assume, that the alteration was in a material part of the
document, introducing as it does a precise charge of another
corrupt practice, yet as the document was not in the
possession of the petitioner, but was in the possession, so
to speak, of the Court, even such an alteration made, as
I hold, by persons who were mere strangers or spoliators,
would not have the effect of destroying it. For this I
refer, if authority be needed, to Aldoiis v. CornweU, L. R.
3 Q. B. 573 ; Siiffell v. The Bank of Ewjland, 1) Q. B. D.
555; iudgraent of Brett, L. J., biSQ; and to Henfree v. Bromly,
55 — VOL. I E.G.

432

DOMINION ELECTION.

6 East 309. In Lowe v. /^'oa;, 12 App. Cas. 206, the docu-
ment altered was in the possession of the party relyinj^
UfDon it when the alteration there complained of was made,
but WhiS not of a material character, and therefore did not
destroy it.

The service of the petition in its altered condition can-
not be treated as a ratification of the a^t of the clerks, as
was argued, because it is not shewn (and is in fact denied)
that the petitioner knew of the alteration : See Falcke v.
Scottish Imperial Ins. Co., 34 Ch. D. 234 : judgment of
Bowen, L. J., 249, 250.

Mr. Lash asked that the petition should be restored
to its original state. I think that should be done, and as
the copy of the petition served has been brought into
Court, and is now before me on this application, I also
think that in order to avoid the necessity of a special ap-
plication to amend, I should direct the copy so served to
be amended in order to conform to the petition as it was
filed, in accordance with the well understood practice at
law before the Judicature Act. But as the application tu
take the petition off the files was under the circumstances
justifiable, and it was necessary to explain how the altera-
tion came to be made, Mr. Lash's a|)plication and the
amendment can only be granted on the terms of payment
of tlic costs of the preliminary objections, and of the motion.

Order accorduujly.

Note. — Ai; appeal from the foregoing judgment was allowed by the
Supreme Court of Canada by consent of parties. Tiie following is a note
of the proceedings in that Court on the hearing :

October 2.5, 1887. McCarthij, Q. C, for the appellant. (No counsel
appears for the respondent.) This is an appeal from a judgment of Mr.
Justice Osier overruling preliminary objections to an election petition.
I have a consent from the petitioner's agents and solicitors that the
appeal should hi allowed, and tlie petition be dismisseil, but without
costs, and the resu?< will he. that the preliminary obje.ctiona are, to utanti.
(Consent read.)

TA9CI1KUE.VD, J. — In this Court we have done so before, but in the
Province of Quebec we have always refused to allow appeals upon consent

Pipi

LINCOLN AND NIAGARA.

433

McCarthy. — ] n the North York case the appeal was allowed in the Court
by consent, ?n(i the judgment of the Court below upon preliminary objec-
tions was reversed.

Strong, J. — All we can do is to allow the appeal, but without costs ;
and that only dispoKts of Che preliminary ohjection-s.

Ritchie, C. J. — The order must be made that upon reading the written
consent of the attorney and agent of the petitioner, the preliminary objec-
tions are sustained, and the appeal is allowed, but without costs.

"i I

434

PROVINCIAL ELECTION.

EAST NORTHUMBERLAND.

PRO VI NCI A L ELECTIOJS.

!|i

Before Boyd, C, and Osler, J.A.

Brighton, October 11, 12, 13, and 28, 1887.
Toronto, October 29 ; November 19 and 26 ; December 3 and 12, tSS7.

IcHABOD Richmond, Petitioner, v. William A.
WiLLOUGHBY, Respondeat.

Agency — Bribery — lUetjal /rracticen — Scheme for vlolatbiq secrecy ofhaUol—
Election Act, R. S. O. (1877) ch. 10, sees. 14<j, 150.

The respondent was nominated by a convention of the Conservative
party, composed of fifty or seventy-five persons, among wliom was R.,
who was well known as a prominent member of the party, and was on
intimate terms with the responden';, both of them being physiciims.
R. was one of the persons nominated at the convention, but the choice
fell on the respondent, who then made a speech of acceptance in which
he said he expected his friends to take an interest in the election and
to work for him. I v. made no systematic canvass, but he asked several
people for their votes, was at various informal meetings of voters held
in the interest of the respondent, and with the respondent visited the
houses of several voters.

Held, that R. was an agent of the respondent.

F. 1). was also at the convention which nominated the respondent, and he
and W. D. were among the sujjporters of the respondent in a particular
locality who held meetings at wiiich the voters' lists were discussed and
arrangements were made for looking up doubtful voters.

Held, that these men were both to be legarded as agents of the respon<lent.

R. committed two clearly proved acts of bribery ; F. I), and \V. I),
entered into a scheme for violating the secrecy of the election by induo-
ing voters to exhibit their ballots, after they were marked, at a window;
and the evidence developed at least two other acts of bribery, though
not by agents, and some suspicious circumstances ; but all these were
without the knowledge or consent of the resjiondent. The vote polled
was about 4,500, out of which there was a majority of 51 for the respoii
dent.

Held, that the election was void because of the corrupt acts of R. ; and
in view of the conduct and details of the 'ontest, the saving provisions
of sec. 159 of the Election Act, R. S. 0. (1877) ch. 10, could not be
applied.

Per curiam. — The scheme for violating the secrecy f(f the ballot was au
illegal act under sec. 146, and had no little significance when taken
in connection with the proved acts of bribery. In estimating the appli-
cation of sec. 159 it was impossible to leave out of sight the illegal prac-
tices under sec. 146.

The Went Sinicoe Case, ante 153, referred to and toUowed.

EAST NORTHUMBEULAND.

435

This was a petition under the Ontario Controverted
Elections Act, tried partly at Brighton and partly at
Toronto.

The petition contained the usual charges of corrupt
practices by the respondent and his agents.

Lash, Q.C., and W. R. Riddell, for the petitioner.
McCarthy, Q.C., and Ketchum, for the respondent.

The evidence for the petitioner not set out in the judg-
ments was, so far as material, as follows :

David Ewing, called by the petitioner, said that he had
been secretary of the Liberal Conservative Association for
the East Riding of Northumberland for the past twelve
years. A nomination for the election in question was
made in the month of November, 1887. The delegates to
the convention were called together by the witness. Dr.
Willoughby (ti)e respondent) was summoned to the conven-
tion ; he was not then thought of as a candidate ; he was
present at the convention ; witness heard him make a
speech, after he had been nominated ; believed he asked
those who were there to work for him. Dr. Richards was
at the convention, and was one of those nominated. In
calling the convention the witness picked out the active
men. There was no membership fee required of delegates
to the convention.

Oross-examined, the witness said he had no authority
by the constitution of the Conservative Association to call
delegates in the way he did ; it grew to be the practice.
The convention had nothing to do but nominate candidates ;
it was called for that purpose ; it was no part of the duty
of the association to render assistance to the candidates.
Witness could not repeat what Dr. Willoughby said in his
speech at the convention ; he would describe it as the
stereotyped speech that all candidates make.

Dr. Nicholas Richards, called by the petitioner, said
that he was at the meeting which nominated Dr. Willoughby ;
canvassed for him ; saw him during the election ; was at

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436

PROVINCIAL ELFX'TION.

several small meetings during the election ; drove Dr.
Willoughby one morning during the election, but could not
recall speaking to him about the contest. Phillip Kennedy
and witness went together to see electors in the interest of
Dr. Willoughby.

Cross-examined, witness said he had not been elected or
appointed a delegate to the convention. The small meet-
ings he spoke of were not organized or committee meetings ;
they were all informal, accidental, he might say. There
might have been nine or ten persons at these meetings.
Witness drove Dr. Willoughby to see a voter, but did not
go in with him.

John Noonan, called by the petitioner, swore he got $5
from Dr. Richards, the day Vi(>fore the election. Witness
didn't ask the doctor what he gave him the money for :
he didn't mention the election. Witness gave the doctor
back the ^5 a few days before the trial ; the doctor came
to witness then with a man named Walker ; witness had
then heard that this charge was made. Walker gave wit-
ness the $0 to hand back to the doctor. Witness knew of
no reason why the money was given him except to vote
for Dr. Willoughby. Witness knew Dr. Richards was a
Conservative : he slipjjed the money into his hand as he
was shaking hands to say good-bye.

Michael Shaughne^sy, called for the petitioner, said
that Dr. Richards came to his place with Philip Kennedy
within a week befoi'e the election. John Noonan was there
with witness. Kennedy spoke of the election, and asked
him to vote for Dr. Willoughby. Witness said he hardly
knew whether he would ; if he voted at all, he would vote
for Willoughby. After that Dr. Richards shook hands
with witness in saying good-bye, and left $5 in his hand.

Richard Philp was called on behalf of the petitioner,
and admitted giving $3 to John Calberry, and $1 to Phineas
Rickson. The latter was aftei- the poll had closed. He said
these payments had nothing to do with the election. He
was a supporter of Dr. Willoughby, and had canvassed for
bim, but was not at the convention which nominated liim.

EAST NORTHUMBERLAND.

437

John Calherry swore to getting S3 from Richard Philp
on election day, about four o'clock. After getting it, he
went and voted.

PJdvms liickson said he got S2 from Richard Philp,
the night of the election, after it was over. Philp didn't
.say what it was for. ^Vitness had told him he had voted.
Before witness voted he told Philp he was going to vote
for Dr. Willoughby, though his politics were Reform.

Cross-examined, he said there was no bargain that he
was to get money for his vote. He took the money and
spent it with Philp. Philp did not promise him money
when he voted.

Such other portions of the evidence as are material art?
sufficiently .set out in the judgments, which follow.

J)ecember 12, 1887. Boyd, C. — The convention called
to nominate the Conservative candidate was composed of
active party men who were summoned to attend by the
secretary of the Libeial Conservative Association, according
to a method pursued for the last ten years. Thereupon
.some fiity or !5eventy-tive persons met in November,
anions: whom was Di'. Richards. He was well known as
a prominent member of the party in the locality where he
live<l ; and he was on intimate terms with the respondent-
Dr. Richards was one of the persons nominated at that
meeting, but the choice of the convention fell on Dr.
Willoughby. The latter then made a .speech of acceptance,
and it is to be fairlv inferred from all the evidence
that he then said he expected all his friends to take an
interest in the election and to work for him. Dr. Richards
did certriinly act in this way. He was at various meet-
incfs of voters (of an informal character, as he states) at
which the inatter di.scu.ssed was what was best to be done
in the interests of their candidate. Dr. Richards admits
that, though he made no systematic canvass, he did never-
theless take occasion to ask people for their votes, and
spoke to those he met with as he journeyed about in the
course of his practice. While the doctor lays stress on

438

PROVINCIAL ELECTION.

ii '

■ }■'>

■ '■

11 f ^^ !

the fact that there was no systematic organization at
work for the respondent, his evidence discloses that there
was an informal but effective agency in operation, of which
lie was a conspicuous unit, whereby canvassing was prose-
cuted in a wide-spread way. No better agency for seeing
voters at all times and in various directions can be devised
than the utilization of a country physician's opportunities
as he drives to and fro in the visitation of his patients.
This consideration probably explains why the medical
element has cropped up so strongly in many of the recent
election trials.

It was thus, at all events, that Dr. Richards aided his
professional brother. It is admitted also that the two
drove together and visited the houses of several voters
whom Dr. Willoughby wished to propitiate, and who were
apparently known to Dr. Richards personally, and not to
Dr. Willoughby. We have in these facts a combination
of circumstances which seems to me sufficient to constitute
agency as between the candidate and this prominent pro-
moter of his cause. I need not repeat what has already
been well said as to the close relationship which exists
between the members of a nominating convention and the
candidate who puts himself in their hands, but will simply
refer to the language of Cameron, C.J. , in the Letmo.c Case,
ante at p. 61, and the language of Patterson, J. A .
in the Maskoka Case, ante 197, which is concurred in
by my brother Ferguson, who was his colleague in that
trial.

Starting with this close connection between Dr. Richards
and Dr. Willoughby, there is additional evidence which
goes to implicate the candidate in the conduct of this
active supporter. There are proved various indications
of agency, as it is viewed in election contests, which gain
weight and cogency from their cumulative character
Agency being thus established, the proof of bribery on the
part of Dr. Richards is verj'^ clear as to the two voters,
Michael Shaughnessy and John Noonan, who each received
$'■> from him as an inducement to vote.

EAST NoaiHUMBERLAND.

439

Ah to tlie Philp charges, I have with liesitation resolved
t" give him the benefit of iloubt as to the payment to
Jlickson, that it was not done corruptly; but I cannot
extend my eharity sufficiently to cover the case of John
<,"al berry. The $3 given to him was before he voted, and
when he said he was going to vote, and it could have been
intended for no other purpose than to influence his action.
Tliis corrupt act, however, does not affect the respondent,
Ix'cause the evidence is, in my opinion, insufficient to con-
nect Philp with Dr. Willoughby as his agent.

There was also, in my «)pinion, a corrupt act proved
lintween Joseph Robinson and Spence Ventris, a hotel-
keeper in C'jlborne, by which the latter ])aid the former
ii'i on the morniiiij of the election. V^entris, thouijh not an
nuent of the respondent, was acting in the Conservative
interest, and has failed to explain away the obvious mean-
inu' of the transaction.

There is another v^ry suspicious transaction between
\\'illet Paimateer and Jolni Goodfellow. 1 think the
reasonable conclusion from the evidence is, that in the
interests of the party represented by the respondent, Good-
lellow paid Palmateer to keep away from voting. He
enifajxed him to work from two to four o'clock, for whieh
thirty cents would be sufiicient compensation, un<l he paid
liim SI therefor, although PalniaiL'er expected more.

There is also aiiothei" evidence of the fact that a good
(leal of money was afloat in the contest. Franklin, a voter,
was telegraphed for to go frcjm Toronto to Colborne to
vote. The mes.sage was despatelied in Dr. Willoughby 's
name, was charged i)i his account of expenses, and was
uuly paid by his financial agent. Both of these deny hav-
ing sent it, or having been in any way privy to its trans-
iiii.ssion. Pending the trial this and other telegiums were
destroyed by the directions of the manager of the tele-
graph company.* As to the contents of the Franklin mes-
sage, there was no satisfactory evidence. The operator
thought it ran somewhat thus : " Come down to-morrow ;"

iif..

it •:

.■

• See Re Dwi<ih( and Macklnm, 1,") (). R. 148.
5G — VOL. I E.C.

440

PKOVrXCiAL KMWTION.

and it might have sairl : " It will bo nil right." Franklin,
vvilh others also telcgraphod for, went from Toronto, niid
ho forgot to take money with him. At Colhorno he spoke
about not lo.sing his expenses ; and one who came fioni
Toronto, Labello, then gave him $5. There is no trust-
worthy explanation of this transaction, or of the soun-e
from which the money was derived. Prol)ai)ly a cliii;
would have been obtained, but for the disappearance of
the written evidence.

The double act of brilx-ry committed by Dr. Ricluuds
does not suggest an isolated tran.saction, but rather indi-
cates that it was part of an organized scheme. He ijocs
not on this occasion pursue his usual practice of canvassinj^
as he goes his professional rounds ; but there is a special
expediiion on the day before the election, in which he i.s
accompanied by a friend, Philip Kennedy, a store-keeper at
Hastings. In the cases of Noonan and ISliaughnessy, who
were slightly known to Dr. Richards, t!;e niodus opcrnvdi
was suggestive of a preconcerted method of action.
ivennetly, with whom they are on more familiar terni.s,
first interviews them apart from the doctor — feels tluir
pulse so to speak — then he return^) and reports symptoms,
and thereupon the doctor comes forward and administers
the dose. Now it is very significant that Dr. liidiMnls
(beyond admitting that he and Kennedy went to see voters
in Dr. Willoughl>y's interest) is not examined on tliis \wiv\
of incjuiry at all by the lespondent, nor is Kennedy even
called by him. We have no pledging of their oaths to
counteract the presumption that these men were on a tour
of corruption, and that they saw many more voters and
spent much more money than is in actual evidence.

The house of Robert McDonald (blacksmith) was next
to one of the polling places. It was at this house that
many of Willoughby's supporters used to hold meotiu;;s ;
among the rest Willis Duncan (who was a member of tiie
uiunicipal council) and Frank Davidson. Davidson is a
newspaper agent, (is also calknl a farmer) and appears to be
a person of much intelligence and .shrewdness. Frorii tlie

KAST NOUTlll'MIJi:i!h\M>.

4+1

lioiisn where they met tlie polling hootli conM 1h> sci-m.
The voters' lists were (Jisciissed, and it. wns nrriinj,'etl aliont
lookinf;; up those who wercdouhtfnl voters. Frank Dnviil-
son was at the convention tliat nominate*! Dr.WilloiiLrhliy,
an<l l>oth are to l»e rej^ai'dcd ns agents of Dr. Willoui;liliy.
In the booth next to McDonald's wu^< a window tlirotioh
wliieh the ballots could be seen, it' held up by the voters
within. Davidsou and Duncan, l)efon> the day of polling',
had some arran^j^ement bv which voters wei-e to be jisked
to hold up their ballots for th(( purpose of aseertainini;'
by the aid of a spy-nlass how they had voted. David-
son, it appears, had tried to us(> the Lflass from his own
house, but said it would not work, anil so it was to bo
used from McDonald's window. One voter (Otis Sammis)
is proved to have lield up his liallot for the purpo.se of in-
.spoction, pursuant to this an-an^'ement. I incline to be-
lieve the statement of another (Allan Sabins) who swears
that on the polling day Frank Davidson spoke to him about
his vote, and told him he had a spy-glass in McDonald's
hack room, and asked him if ho voted for Willonghby to
hold up his l)all(jt towards the window.

This .scheme for violating one of the essential provisions
of the Ontario Election Act, while it was an illeoal act
under section 140, and exposed the guilty jmrticipants to
be punished by imprisonment, has no little signiticance
when taken in connection with the proved acts of bribery
already detailed. It suggests that agencies were at wo)k
to influence voters, and to provide for the corrtipt compcMi-
sation of those who by means of the exhibited ballot were
certified to have fulfilled their eniracfoiients to vote for the
respondent. I give a wider reading to the term " illegal
practices" in sec. 159 than appears to have been present ta
the mind of Patterson, J.A., in the WfUfnul Cnsc, avtc p. 'jN.S.
In estimating the application of the provision of section
b59 to this election, it appears to ine impossible to leave
out of sight the illeg il practices under section 140.

Here the vote polled was about 4,500, out of which there
was a majority of 51 for the respondent. In view of the

.J^'

'Sfa

11:

442

I'JtoVlNClAL ELECTION,

conduct aii<l (lutiiils of tlic contest which have hccn Itcforo
UM, I nin not iihh^ to say that the result cannot reason-
ably he supposed to havu Iteun atf'ecti'd by the corrupt ami
illcjU'al practi(!cs which have been proved.

Acconlin^f to the best opinion I can form upon th(; whole
case, and applyini^ the piinciples of the decisions eitetl to
us on section !')!>, my jud^^'incnt is that the election is and
should be deelar(;d to be void.

As to costs, the general costs of petition and chnrfjes on
which the |)etitionei' succeeds should be paid by respfjmient
as if thesi; were the only charges; the costs of t!:e charges
on which petitioner failed to be paid by him and set off
against the others.

O.sLEK, J. A. — 1 am of ojiinion tliat the evidence brings
till! case, as regai'ds the (|uostion of Dr. Richards' ageney,
within the decision of the Court of Appeal in the Went
Sini'Joe Caxe, ante p. 153. We have here, as in that
case, a person put foi'vv\ard as a candidate through the
instrum(;ntality of a political association, "the modus oper-
andi being that delegates to a convention were cho.sen under
what may be called the auspices of the i Conservative)
Associatiim, tliat the ottice of the delegates in convention
was to select the candidate of the party, and that the res-
pondent was the choice of the delegates in convention."
Tlue respondent was present at the convention, accepted
the nomination, and, in doing so, made an address, in the
course of which he not only accepted the nomination, but
also asked the deleijates whom he addressed to work for
liiiu in assuring the election. In the absence of any denial
oi- explanation on his ))art, I think this is the iair infer-
ence; from the evidence of Ewing, the secretary of the asso-
ciation. We have, therefore, the combination of circum-
stances which was held in the above case to constitute the
<lelegates agents of the respondent for the purpo-ses of the
•election ; and there are in addition thereto other facts*
noticed in the learned Chancellor's judgment, of a more
directly personal character, which support a similar con-
clusion in the present case as to Dr. Richards.

KAST NOUTlllMHKnLANI).

44:1

It is nnnoct'ssary in thi.s onso to invdkc tli«' ilicta of oiio
of the leariHMl trial ju<l<,'('s in tlic cast; cited, and of the
Ifanu'd Chief Justice ('aiiieroii in the LcniHu- ('<ine,onfi ]).
41, 01, which, as I respectfully suhniit, carry the <i(>c-
trino of election agency, as regai-ds delegates and other
supporters of a party cinnlidate, much further than the
authorities warrant.

I take it that the law for us on this point is expressed
in the language vi Spraggo, C.J.O., in the West iS'nncoe Case,
concurred in l»y the ninjority of the Court of Appeal. lie
says (p. lo'J) : " We see that it has been a common practice
f(ir the delegates to become active promoters of the election
of the candidate whom they liave chosen, by canvassing for
him and otherwise. I do not mean to say that being delegates
they are thereby constituted agents of the candidate, or
that gi\ ing his candidature their active support afterwards
has that eliect. Strictly I take it that their duty is executed^
and at an end upon their selection of a candidate ; and if
afterwards they canvass for him, or give him their support
otherwise, it may be of their own free will ; or it may be
that they have been a])pointed to thfit duty by the Associ-
ation. There are several instances in England of canvassers
and other election agents being appointed by and acting
for similar jiolitical organizations, for whose acts the can li-
(late was n(jt held responsible, unless he made them iiis
agents expressly or impliedly, or ratified and adopted their
acts. But at the same time we note the frequency of the
change of the mere delegate to the active election agent;
how in [tractice the one follows upon the other. It requiiTs,
I ap))rehend, less positive evidence of api)ointment, or recog-
nition and adoption than in the ca.se of one not a delegate."

It was shewn in that case, as I have said, that the
candidate asked the deleua.tcs to work for him and aid in
electing him, and this was held to be sufficient evidencfr
of the appointment of the delegates present to act as his-
agents for the purpose of the contest.

I do not think the present case is distinguishable irk
its circumstances from the West Sinicoe Case.

a fe

444

PROVINCIAL ELECTION.

Tm'O charges of biibejy by Dr. Ricliarfls, viz., the brihei7
of John Noonan and Michael Shaughnessey, are clearh'
proved.

The agency of Ricliard Piiilp is not proved, but 1
think it is pi'oved that ho bribed John Calberry l)y payin"
liim $8 on the polling day. The only reasonable infer-
ence from tlie evidence is that it was paid to him for
his vote.

With some doubt, T think we may hold that the pay-
ment to Ricksou was an innocent one and disDiiss that
charge.

There is a charge of bribery of Joseph R(,binson by
Spence Ventris. The agency of Ventris is not proved;
but I think upon full consideration that the fact of bribery
is. The money was paid to Robinson on the morning of
the polling-day. Ventris' explanation was that he paid it
in settlement of a bill he owed to Frank Robinson, Joseph's
son, for meat purchased fro.n him nearly a year before.
There was no other evidence of the existence of such an
account, or of Joseph's authority to receive payment of it.
Moreover, Ventris did njt tell him that the money was for
Frank, and he never afterwards told Frank that he had
paid it. The explanation thus becomes merely incredible.
It was invented for the occasion.

The petitioner was allowed to amend l)y adding a char;,'c
of bribery by John Goodfellow of Willet Pahnateer to
refrain from voting. The circumstances are suspieinus.
but I think fall short of i>roof. Goodfellow denies the
charji'e. He says he did not ask Palmateer not to vote, but
that Palmateer toUlbim he did not intend to vote, and that
lie then said to him thot he might as well come down and
work for him at threshing peas. It may have been in his
min<l that this would clin'ih Palmateer's intention, and
prevent him from altering it, but I nm not convinced that
there was any agreement or understanding on the subject.
and the alleged overpayment is not so great as to compel
belir'f in its corruptness, and to convict tliese two person^
of bi'ibery.

KAST NORTHUMHERLANI),

445

i clearly

I, but 1

y paying

lie infer-

him for

the pay-
niss that

inson by
proved ;
)f bribery
oi-ning of
le paid it
1, Joseph's
ar before,
f such an
iient of it.

ly was

for

be had
ucredihle.

a charge
iiateer to
;uspi<nous.
onies the
vote, but
and that
own and
en in his
:,ion, and
iced thai
no subject.
compel
person*^

The next char<,'e is one (made by amendment) of bribery
of Franklin by Thomas Labelle. The evidence entirely
fails to connect Labelle with the candidate, or with any
agent of bis ; nor, in my opinion, is bribery in fact proved.
The case put forward by the petitioner was that Thomas
Labelle, Reuben Labelle, (Chatterson) and Franklin, all
came down irom Toronto to vote for the respondent on a
promise or under.standing that their expenses would be
paid. That some one telej^a'aphed to these persons in the
respondent's name is clear, but the contents of the tele-
irranis, if thev containeil more than a summons to come
down to vote, has not, owini,^ to the misconduct of th*-
Mianager of the telegraph compaay, been proved.

The respondent denied thf.t he sent them, and I think
't was proved by person.s wao saw the original messages
before their destruction, that they were not in his hand-
writing. Franklin was paid S'') at Colborjie, and the sug-
gestion was, that the otliers were also paid, Labelle being
the hand to distribute the money, supposed to h; ve been
received by him for the purpose. Fivanklin, however, is
the only one who is proved to have received anything
Labelle swears that the money so paid was his own money
lent by him to Franklin, because he hail left his purse
behind him in Toronto, and he swears that he paid his
own expenses and paid nothing to Reuben, his brother.

There i.s literally no evidence that he received the money
from the respondent, or from any one on his behalf, and he
gives a not improbable account of how he might be pos-
se.ssed of money of his own, and so be in a position to
assist Franklin at a pinch. So far as he was ]iersonally
concerned, he had no inducement to biibe Franklin, who,
like himself, was a voter coming at the reijuest of some
one else to vote for the resj)ondent. He was not canva.ss-
ing or taking any other part in the election. Nor, finally.
as to this branch of the charge, is there any reason to
suppose that the money was paid as a bribe. The offence,
if any, in the diiection of which the evidence points is
that of payment of the voter's travelling expen.ses, but

446

PROVINCIAL KLECTION.

a? 'f '

this, except when dono by a candidate or by a person on
his behalf, is not an ofienco, and there bcinf^- an absoluti>
failure to trace in that direction the money paid by Labellc,
the charf^e from any point of view falls to the ground.

The case is not free from suspicion, but it comes short nf
proof. I cannot say that Labelle impressed me as an
untruthful witness, though he undoubtedly went far to
discredit liimself by his persistent avoidance of a subpixnn*

The result is that the election must be avoided in conse-
quence of the corrupt act committed by Dr. Ricl'"
unless we can hold it saved by the healing proviMon of
section 159 (sec. 1G3 of R S. 0., 18«7, ch. 9.)

So far as the respondent himself is concerned, 1 see no
reason to suppose that he did not conduct the election with
due regard to the requirements of the law, A considcralile
part of the trial was occupied in the inquiry into the per-
sonal charges made against him, which were ninnerous ami
were pressed with a good deal of earnestness, but wliidi
pi'oved to be entirely without foundation, and can only lie
characterized as frivolous and vexatious.

But there were two gross cases of bribery l\y Dr. llicli-
ards, an agent of the respondent, another by Pliilp, au'l a
fourth by Ventris, whose agency was not proved. Theie
was also the illegal act, which I must regard as proved,
to which Duncan and, I thiidc, Davidson wei'e pnrtics. df
inducing one or more voters to display their ballot papeis
after they had maiked them, and of attempting to arranyo
a plan by which he and otheis might successfully do sn.
This ^)lan failed, but its only conceivable object must hnve
been to promote tlie carrying out of corrui)t practices Avitli
I'egard to such voters.

I have already in the North Ovtario Case, anie p. 1 ;
the EdHt Middlesex Case, ib. 250 ; the Juisl Sintcoe Cuki',
ib. 291 ; and the West Simcoe C<(se,ih. 128, had occasion to
consider .section 159.

I need not repeat the views there expiessed as to the

'The trial was several times ailjounied by reason of the pttitioun s
failure to subpcBiia Thomas Labelle.

■f: i

KAST NOKTHl MHKULANI).

447

jerson on
absolute
,' Label Ic,
ountl.
s sliort of
ine as an
nt far to
iUb|)(T'na.*
in conse-

ONl>i II lit'

, I see i\o
ction with
nsidorabiti
.(J the pt.M-
lerous and
but wliirh
m only lie

Dr. llicli-
ilp, au'l a

.1. Th.Te
as provol,

•);irtios, (if

(it papers
to arran(re
ly (In sn.
must hnvtj
'tioes with

(inii' p. 1 ;

COC (.'((>'',

Dccasioii tn

as to the
putitiontir'a

difficulties which op))osc any iutellij,'ent or .satisfactory
application of it, except in couijiaratively rare and simple
cases.

I am wholly unable to say that it can be properly applied
to save the election in the present case. For the reasons
t,Mven by my learned colleague, in which I fully concur,
in dealing with the charges in the disposition of which we
agree, it is impossible for me to afHrm in the words of tlie
section, that the corrupt practices were of such trifling
nature, or of such ti'ifiing extent, that the result cannot
have been affected, or be reasonably supposed to have been
allected thereby.

The election must therefore be avoided. As to costs, the
case is one in which they may be dealt with as in the Frescott
<\ise, at ante p. 110. The res))ondent should pay the
costs of the petition, and to the same extent as if the
charges in respect of Richards, Ventrisand Philp, and Allan
Sabins and Otis Sauimis had been the only charges upon
wdiich the petition was founded. As to the other charges
on which the petitioner lias failed, he should pay the res-
pondent's costs.

We shall certify to the Speaker our determination that
the election was void by reason of a corrui»t practice
having been committed by an agent of the i .-spondent,
without the respondent's knowledge or consent.

I shall also report to the Speaker («) that no corrupt prac-
tice has been proved to have been committed by or with
the knowledge or consent of any candidate at the e1ecti(m ;
{b) That Dr. Nicholas Richards, John Noonan, Miehael
Shaughnessey, Richard Philp, John Calberry, Si)ence
Ventris, and Joseph Robinson were proved at the trial
to have been guilty of corrupt practices, that is to say
of biibery ; and (c) that there is no reason to believe that
corrupt practices have extensively prevailed at the elec-
tion.

57 — VOL. I E.C.

448

DOMINION ELECTION.

ALGOMA.

DOMINION ELECTION.

Beiork the Court of Appeal.

Present — Haoakty, C.J.O., Burton, 1'atterson, and Osler, JJ.A.

Toronto, December 9, 1SS7.
January 10, ISSS

Daniel Francis Burk, Petitioner, v. Simon James
Dawson, Respondent.

" Dominion Con/roverted EkdiouH Act," R. S. C, ch. !), sees. 32, 3r,,
construction of— Time for trial of petition— Extendiuf] time.

The petition was presented on the 6th May, 1887, during a session of
riirlianient which ended on '23rd June, and issue was joined on .Siil
June ; no applioation was made or steps taiien after that until the (iili
Dcoeniber, 1887, wlien the petitioner applied to have a time and jilacc
appointed for trial and to have the time for tiie commencement of tlie
trial enlarged.

The first part of sec. 32 of the Controvertjed Elections Act, R. S. C. ch. !>.
i.s as follows :

"Tile trial of each cloetion petition siiall be commenced within si.x mouths
from the time when snch petition has been presented and shall be ]iro-
oeetled with from day to day until such trial is over ; but if at any tiiii';
it appears to the Court or Judge that the respondent's presence at the
trial is n(!cos>iary, such trial shall not be commeneed during any sessimi
<if I'.uliaiueiit ; and in tlie computation of any time or delay allowed for
any step or proceeding in respect of any such trial, or for tiie commence-
inent thereof as aforesaid, the time occupied by such session of Parlia-
ment shall not be included."

Hell/, Pattkhsox, J. A., dissenting, that the exception in the last clause
is conlincd to a case in which the (Jourt is satisfied that the respondent's
])resence is necessary; '* such trial" rcfars to a trial at which the
respondent's presence has been declared to be necessary ; and no sucli
declaration having been made in this case, tlie time of the session of
Parliament was not to be excluded from the six mouths within which
the trial was to be commenced.

It WIS not incumbent upon the rcspondent]to move to dismiss the petition
for dcfaidt.

The Court couhl not nunc pro tunc declare that the respondent's presence
at tlie trial was necessary.

Per Ciiriani, that the time for the comniencement of the trial r;.ay be en-
large<l und'r sec. '^'^, tiocwitlistanding the expiration of the six months ;
but it had not l)een e.-^fablished in this ease thi-.t the reijuirements nt
justice rendered such enlargement necessiry ; au<l the Court refused tit
appoint a time and place for trial or to enlarge the time.

ALGOMA.

449

TiiK petition in this case was presented to the Court of
Appeal on the Gth May, 1">87. Preliu)inary objections
were overruled on tlie 28th May, and the parties were at
issue on the 8i-d June. Parliament wasjin session at the
time the petition was presented, andjwas-not prorogued till
the 28rd June.

After the disallowance of the preliminary^ objections, no
step was taken or ap|)lication made by either party until
the Cth December, 1887, when the petitioner moved to fix
a converient time and ))lace for the trial, and to extend
the time for the commencement of the trial, which by
R. S, C. ch. 9, sec 32, should l)e within six months from
the presentation of the petition, unless enlarged by the
Court or a Judge under sec. 83. This application was
made in the first instance to a Ju<lge in Chambers, and
was b}' him enlarged before the full Court.

In support of the application the petitioner tiled his own
affidavit, which stated that the petition was presented in
good I'aith, and that the charges made in it, or a lax'go part
of them, could be substantiated : that the respondent was
a material witness on the petitioner's behalf, and that the
latter could not safely proceed to trial^without his evidence :
that since the presentation oi the petition the petitioner
had been diligently employed in obtaining evidence, but
had met with rliificulties in doing so owing to the large
size of the constituency : that the petitioner had relied
upon the time for the connneiicenient of the trial bting
computed so as to exclude the period of the session cf
Parliament : and that the application was made bona fi('e
and not for the purpose of delay.

The respondent opposed the application on the ground
that the trial not having been commenced within six
months from the time when the petition was presented, and
the time for connnencing it not having been enlarged, tlie
Court ought not now to appoint a day f<jr trial, a: id furtiu'r
that it had not been shown that the requirements (if justice
now rendered an enlargement for that piirpose necessary

The argument was heard on the 9th December, J 887.

HRr

fflffi^

[{^\i'ii^''i

450

DOMINION ELECTION.

W. Cassels, Q. C, and C. J. Ilolman, for the petitionur.
McCarthy, Q. C, and /. i{. iJoa/, for tlie re.spoi»dent.

Januarj' 10, 1888. Hagauty, O.J.O,— I am of opinion
t le language used by the legislature (R. S. C, ch. 9, sec.
3i,) clearly indicates the direction that the trial of tlie
petition shall be commenced within .six months from the
time of ^n-esentmcnt, except that (1) when it is declared or
decided by a Court or Judge that the respondent's presence
at the trial is necessary, and then the trial shall not be com-
menced during any session of Parliament ; (2) that in
comi)uting the time or delay allowed for any step or pro-
ceeding in respect of the trial or its commencement, the time
occupied by such .session .shall not be included.

I read the M'ords " such session," to mean the session
previously referred to, /. e., the session in which, but for
such finding orVlirection of a Court or Judge, the time from
which the six months would otherwise be I'eckoned.

In the case before us no such intervention of Court or
Judge has taken place, and I hold that the six months
mu.st count from the Gth day of May, when, during a session,
the petition was presented, and the time linjited expired
in November.

Beyond the disposal some time in May of certain pre-
liminary objections, and the case becoming at issue about
June 8rd, nothing whatever appears to have been done by
the petitioner until the Gth December, when he applies to
have a day fixed for trial. He has nearly seven months
to pi'epare his case and his evidence, and has never even
taken the common course of examining the respoiident.

I cannot .see that the latter was called on to take any
step. If the petitioner had desired to [)revent time lunning
against him up to the 23rd of June, when the session
terminated, I do not see why he might not, on affirlavit de-
cUiring his requirement of the respondent's presence, have
obtained an order from a Jud'fe that the trial .should not
be co'umenced duriuix the session, and then the time of
such session would not have counted against him.

ALGOMA.

451

I think it clear that the legislature designed that these
trials should be brought on with reasonable promptitude,
partly for the reasonable protection of members against
the long delay in ascertaining their rights, and partly in the
interests of the electors, that it should be ascertained as
soon as fairly practicable whether they were lawfully or
unlawfully represented.

Sub-sec. 2 of see. 32 seems clearly aimed against un-
explained delays, declaring tliat if after three months from
the presentment no da}^ of trial has been fixed, some otluu"
elector may on a])plication be substituted for the petitioner.

Both the interests of the parties and of the electors can
be fully protected by the 33rd section, giving power to the
Court or Judge to enlarge the tinio for the commencement
of the trial on an application su])ported by affidavit, if
the requirements of justice render such ;i course necessary.

I am nnal)le to see that any case whatever is made ont
by the petitioner to induce the belief that the require-
ments of justice would be answered by our extending the
time.

The affidavit produced is of the very vaguest character
and, for all that it states, the petiti-^ ;er's exertions < j disco-
ver evidence may have been limited to making inquiiies
of the various people that he may have met. Against his
statement is the unexplained fact that he has allowed the
whole open season, from early in May to the month of
Decemlier, to elapse without any attempt to get a day fixed
for the trial.

The peculiar position of this large constituency, in my
judgment, rendereil it more clearly the duty of the peti-
tioner to be diligent in striving to have the trial (hning
the open season, instead of practically throwing the trial
over till next summer, after t\V(» sessions had passed, leav-
ing a person whom he seeks to prove unduly elected to
rtju'csent the constituency.

This dilatorinoss seems wholly opposed to the apparent
intentions of the legislature, and throws an api'iarance of
nnreality over the proceedings.

•i!

it]

452

DOMINION ELECTION.

I do not think tluit Mr. Cassels' in«;enious arguniont
should avail him, as to the duty of the Court to fix days
for trial on their own motion, without being asked so to do.

Granted their power so to do, we cannot ii^noro the
fact that such a course has never been taken, and sec. l.'i
is very plain in directing that when the petition is at issue
the Court may, on the application of either party, fi.K a day
for trial. Nor do J think it necessary that there should he
a motion to dismiss.

All we see is that the six months have elapsed, and tiiat
no case has been made out for our exercising the statutable
powers of extending the time.

I cannot accede to the argument that at any subse([uent
stay of the proceedings, and after the lapse of the six
months, tlie petitioner can suggest that the session should
not be reckoned against him because the attendance of the
sitting member at the trial was in fact necessary.

11 i

Ij. j-.ii

Bltrton, J. A. — In this case the time for the trial of
the petition against the return of the sitting member
expires, if the session of Parliament is excludeil from the
computation, on the 22nd or 23rd of December ; if on the
other hand it is included, it ran out in November last.

An application is now made to tix the day for trial
which even at the time of the application could not have
been fixed for an earlier date than the 22nd, and, as matters
now stand, would necessitate an application for an enlarge-
ment.

We are therefore called upon to place a construction
upon sees. 32 and 33 of the Controverted Elections Act of
the Dominion, the language of which has given rise to
so much difference of opinion.

Tracing the history of the enactments relating to these
controverted elections, we find that originally no time was
limited for proceeding with them, which was felt to be a
great hardship, and the same Act which was passed to
prevent a trial going on in certain cases during the sitting
of Parliament, contained for the first time the six months'
limitation.

A LOOM A.

45. '{

Whilst I ((uitn agree that this limit of time is puioly
ai oitrary, and that we have no means of knowinL,', except
''roni the lanifuage employed by them, whether, as a matter
1)1' policy, Parliament intended that it should be that period
tbsolutely, or that period with the term of the session
idded, we may fairly look at the rest of the Act to aid
us in the construction of the sections in question, and
we find throughout unmistakable evidence of the desire of
Parliament that the proceedings upon these petitions
should be dealt with summarily, and as expeditiously as
the forms of law would ])ermit.

Thus the |)etition must be tiled within thirty days after
the return of the member is published in the Gazette.

That it nnist be served within five days.

Thai pi'eliminary objections, if any, must be presented
and filed within five days, and decided at once in a sum-
mary manner.

And within five days after the preliminary ol»jections
ai'e disposed of, or within the time for presenting the same,
if none are presented, the petition, whether answered or
not, sliall be held to be at issue, and the Court may nx a
convenient time and place for trial.

Then comes the direction that the trial shall be com-
menced within six months, and proceeded with from day
to day until such trial is over. So far, of course, there is
no room for question ; l)ut the section proceeds : " But if at
any time it appears to the Court or a Judge, that the respon-
dent's presence at the trial is necessary, such trial shall not
be commenced (hiring any session of Parliament."

This appears to be a distinct recognition on the part of
the legislature that the trial may proceed during the
session in any other case except that in which the Court
has been satisfied that the respondent's presence is neces-
sary, and that the exception is confined to such a case.
If that be so, the rest of the section is intelligible enough.
The words are these :

" And in the computation of any time o;- delay allowed
for any step or proceeding in respect of any such trial, or

i.54

DOMINION ELECTION.

for the commencement thereof as aforesaid, the tiino
occupied by such session of Parliament shall not be in-
cluded."

That is to say, all trials are to be commenced within six

months, unless in the one excepted case ; and in that case
the trial is not to be commenced during the session, and
as to such trial, that is, the case in which the Court lias been
satisfied that the respondent's presence is necessary, tlie
time of the session shall not be computed for any purpose

If the leirislature had intended that in no case should
the time of the session be included, what easier than to
have added immediately after fixing the six months : " But
in the computation of such six months the time of the
session shall not bo included."

I see no difficulty in this construction arising from
sub-sec. 2. It is quite consistent with it. If any petitioner
has failed for three months to bring his case to trial, any
other person may be substituted ; but it would be a good
answer to any such application, that the Court was satisfied
that the presence of the respondent at the trial was neces-
sarv.

The decisions referred to in the Kingston Case, 39 U. C.
R. 139, and the Addlngton Case, 39 U. C. R. 131, were
upon the 38 Vic, before consolidation ; and an attempt
has been made by the fi'amers of the consolidated
Act to remove the doubts which had been raised
upon them, apparently not very successfully, although the
weight of judicial opinion appears strongly to preponderate
in favour of the view which I am takinL*" of it.

Sec. 33 has a general application to all cases, and
gives power to enlarge the time for the commencement of
the trial, if, on an application for that purpose, supported
by affidavit, it appears that the requirements of justice
render such enlargement necessary.

But for the doubts which have been raised by some
Judges whose opinions, I admit, are entitled to very great
respect, I should have thought the meaning of the enact-
ment clear.

ALCIOMA.

455

Altlioii<'li in arvivin*' at this conclusion we must l>o
'^ovornt'd l)^' tlio words of tin* statute without atiy aid from
its parlianK'iitai'V histoiy, still having' conio to a certain
conchision upon its iauguai,^*!, it is not unsatisfactory to
find that that conchision is supported by wliat toolc phico
during its passngc ; leadinj,' menihcrs on l)oth sides of the
House apparently conci'dint,' that where tlio presence of a
nieinlier was not necessary at the trial, there could he no
oliject in the trial not proceeilinu; diu'ing the session ; hut
thiit the question whether a trial shf)uld proceed during
the session niiyht sitfely he left to the Judges.

Being then clearly of opinion that in the present case
the parties have not brought themselves within the excep-
tion ; the time expired in November last, and no effort was
made during that time to l)ring the case on for trial ; nor 1ms
any effort iK't-n made to fix a day for trial until the last
moment of the extended period, when it is admitted that
the case cannot be tried without an enlargement ; in my
view of the law and the manifest intention of the le^isla-
ture, that these trials should be speedily disposed of, I
think Ave ought not to accede to the present application,
but should <lismiss it, and I think with costs.

Pattkhson, J. A. — The question upon the construction of
R. S. C. ch. 9, see. 82, is one which may, either directly or
incidentally, arise tV)r decision by any one of the Courts
mentioned in the second section of the Act, or by a Judge
in Chambers upon an application un<ler section 33, or by
the Judge at the trial of a petition. In the last mentioned
case it is at least doubtful if an appeal lies to the Supreme
Court under sec. 50. In the ot'ier two cases the doubt
is even stronger. It is tlierefoi'e to be regretted that there
should be room for difference of opinion res|)ecting the
meaning of the language employed by the legislature.

The provisions in discussion were introduced into the
law in LSTo, by 38 Vic. ch. 10, sees. 1 and 2.

The present question is whether the six months limited
for the connnencement of the trial are to be in all cases
58 — VOL. I E.C.

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456

DOMINION ELKCTION.

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computed exclusive of the time occupied by a session of
Varliament, or computed only when an attempt has been
made to bring on the trial during the session, and has been
frustrated by its being made to appear to the Court or a
Judge that the respondent's presence at the trial is necessary.

The sections, both in their original form and in the re-
drafted shape in which they now appear in the R. S. C.
as sees. 31, 32, and 33 of the Dominion Controverted
Elections Act, have given rise to one or two other questions
of some nicety, which have not always been answered in
the same way.

I do not ^ ,»j.o8e to touch upon those other questions,
but shall confine my observations to the one directly before
us.

■^ iie mov'sic ; rjuostion were considered in 1876 by
our Court oi! Q'letas Bench in the case of the Addingfon
Election, 39 U. C. R. 131, when Sir Adam Wilson, who
delivered the judgment of the Court, formulated his con-
struction of them in seven propositions, one of which is
thus reported : " 6. In the computation of the six months,
any delay allowed for any step or proceeding in respect of
the trial, or for the commencement of the trial, the time
0(;cupied b^'any session of Parliament shall not be reckoned."
This is laid down as a general proposition, and not as con-
fined to cases where it had l)een desired or attempted to
bring on the trial during the session. Proposition 7 indi-
cated yet more strongly the liberality of construction
applied to the limitation of time, It is alluded to in the
following passage from the judgment in the Kingston Case,
delivered by the same learned Judge at the same sitting
(39 U. C. R. 139, 145.) He said : " I have already con-
sidered this part of the case in the Addington Caw, and
it is unnecessary to say more than that my opinion is that
* * the petitioner is entitled to have excluded from the
computation of the six months all such time as the Parlia-
ment is in session, and such time as the Judge who is to
try the petition is engaged in the tei'm business of his
Court."

ALGOMA.

457

It has heen said that the learned Judge who pronounced
th(!se judrjments had in the Glengan'jj Case, 12 C. L. J.
117, expressed a different opinion. I do not so read the
report of that case. The petition there in question had
bi'on Hied in the beginnin<» of August, 1S75, the six months
therefore running until the beginning of Fe^ ruary, 1S70.
The trial was fixed for the 2r)th of January, 187G, within a
few days of the limit, and the motion, which was heard and
disposed of on the 19th of January, was to ^ixtend the time
beyond the six months. The extension was refused because
the grounds relied on were insufKcient. The learned Judge,
in order to shew that an extension would unavoid!il)ly put
ofi" the trial for an unreasonablds time, called attention to
tlie fact that the trial could not take place during the .ses-
si(»i\ then approaching, which would probably last till May,
nor during Easter Term which would follow closely on the
close of the session ; but the session formed no part of the
six months, and no allusion was made to the (iuesti<m now
before us.

We have l>een furnished witii copies of judgments pro-
nounced by Chief Justice Allen in New Bruswick, Chief
Justice Wallbridge in Manitoba, txnd Mr. Justice Caron in
Quebec, in which a different reading was given to the
statute. Mr. Justice Caron cites opinions of C/hief Justice
Wilson, Chief Justice Gait, and Mr. Justice Morri.son, as
being in accord with his view. He does not mention the
cases in which those opinions were expre-s.sed, and after
reading the judgments in the Addington and Kiwjulon
Caxcfi from which I have quoted, and in which Mr. Justice
Morrison concurred, I cainiot help thinking that the learned
Judge unist have been incorrectly informed.

W'ith all respect for the opinions of those who differ
from me, and fully recognising the force of the considera-
tions on which their views are founded, I think the cor-
rect interpretation was put upon the statute in the cases
in our Court of Queen's Bench.

The argument against it is put on two grounds — the
policy attributed to the statute to secuie a speedy disposi-

458

DOMINION ELECTION.

. J

tion of the election contest, and the reading of the Ihr-
guage itself.

Conceding the policy, as it may well be conceded, I am
unable to see that the argument is much advanced l)y so
doing. There is no charm about the period of six months.
The limitation of time is purely arbitrary. Whether the
choice of the legislature fell on three months, or nine
months, or six months, or six months plus the time of the
session, the principle is precisely the same. It is an arbi-
trary limitation, an<l the question is what is the lin it^tion ?

The respondent is not tied up, for he is at liltorty to
apply at any time after issue, under section 13, to have a
time fixed for the trial.

There is a slight dittercnce in the language, as the stat-
ute is now arranged, from what it was in its original form;
but the efiect, if altered at all, is rather njore in favor uf
the construction I adopt, than when discussed in the
Addiwjton Case.

I see no necessity for reading the third branch of section
32 as being (jualitied by the second, nor any difficulty in
giving each its own literal interpretation.

The words are " and in the computation of any time or
delay allowed for any step or proceeding in respect of such
trial, or for the commeueement thereof as aforesaid, the
time occupied by such session of Parliament shall not be
included."

" Any such trial," moans the trial of the election peti-
tion, and is not by any grammatical exigency confined to
a trial at which the presence of the re.spondent has been
made to appear to be necessary.

" The commencement thereof as aforesaid,'' means the
commencement within what the statute describes as .six
months from the time the petition was presented. The
direction is as to the mode of computing that period of
six months. You arc not to include in it the time of the
session.

The prohibition agaitist conducting the trial during il'C
session has no necessary connection with the limit of

ALGOMA.

459

time beyond which it is not to be delayed ; nor does the
juxtaposition of the two provisions make it necessary to
read tiie hitter as subject to the same co itiugency as the
former.

We have a practical illustration of this in our cognate
provincial enactnumt, to which I ain about to refer. To
liold that the limitation is contingent, like the prohibition,
on the necessity for the respondent's presence at the trial
being made to appear to the Court or a Judge, requires us to
road into the statute something which 1 do not find there,
to say nothing of the necessity invoU'ed for a collateral
proceeding and a certain an)ount of outlay, before the limi-
tation which is to apply to any particular petition is
ascertained.

For these reasons I think we .should hold, as was held in
the Queen's Bench, that the time of the session is not to be
counted.

The policy of the Dominion Act, in the particular we art^
discussing, seems to have been adopted by our local legis-
lature, in passing, in 187G, the statute 39 Vic. ch. 10.
The yOth and 31st .sections of that Act are analogous to the
tiist and second .sections of the Dontinidii Act of" ISTo, but
are not identical with them. We cannot, of course, treat
one of these Acts as throwing light on the other; yet it is
not undeserving of notvie that, while the sanie limitation is
adopted, it is not affected by the contingency which is so
much insisted ou under the Dominion Act. Section 31
began thus : " The trial of an election petition shall not
(without the consent of the candidate declared to be elected)
be held during a session of the Legislative Assembly, or
within tifteen days after the close of the session ; and in
the computation of any delay allowed Ibr any step or jtro-
ceeiling in respect of the trial, or /'or the commencement of
the trial under the xie^t folloivuKj section, the time occupied
by the session shall not be reckoned." The time referred
ti) was fixed by the preceding section, not the following
one, and was six months, as in the Dominion Act. The
section was amended in 1877 by 40 Vic. ch. 7, sched. A
(7) but not in anything at present material.

i'i

460

DOMINION ELECTION.

It is not essential that the practice in local election con-
tests should be the same as contests respecting Dominion
elections. It is, however, similar in its general features,
and it is obviously convenient that it .should be so. The
local limitation of six months being clearly exclusive of
the time of the session, it would be proptr to construe
the Dominion Act in the same way if the arguments for
and against that construction were evenlj' balanced.

The policy of the provision, as apparently understood
and as adopted by our legislature, agrees with the con-
struction given to the Dominion Act in the AddimjUm
Case, w^hich is the construction that commends itself to
me as correct, and on which, in my judgment, we .should
act.

But as this opinion is not that of my learned brethren.
I have merely to add that, assuming the rigid limit of six
months to apply, I do not di.ssent from the conclusion that
no sufficient case for an extension has been made out.

OsLER, J. A., (after briefly stating the facts.) — The prin-
cipal {{uestion is whether the time occupied by the session
is to be computed in the six months. If, as the petitioner
contends, it is not to be computed, he is, ^or vvf an the Gth
instant; when he brought on his motion, and should now he
so treated,) still in time to have a day fixed within six
months from the prorogation, and it would not now be
necessary for Us to determine whether the time should be
further enlarged. That would be a matter for subsequent
consideration. If, however, the time occupied by the
session should be computed, the further question arise.s
whether we ought, under all the circumstances, to enlarge
the time for the commencement of the trial, as the six
months from the presentation of the petition have, in
that case, long since expired.

The tirst question turns upon the true construction of
section 82, and sub-section, of the Controverted Elections
Act, R. S. C ch. 9. I do not like to say that th^ true
meaning is plain, as we do not all take the .same view of

A LOOM A.

461

it, but I will state what, to me at least appears to be the
plain meanin«^.

One object of the loj^islature undoubtedly was, that
thes-e election petitions should be disposed of or brought
to trial promptly, and six months from the presentation of
the petition was considered, subject to special circumstan-
ces, to be an ample time limit for that purpose.

Now examine the language of the section. I take it as
it stands in the revised Act, as I do not think we derive
any assist, nee either way from the language of the origi-
nal statutes :

" The trial of every election petition shall be commenced
within six montlis from the time when such |)etition has been
presented." That is a plain, cleai*, and general direction.
Passinji over the direction that the trial shall be continued
from day to day, we take up the next clause of the section,
transpositig its members without altering the sense : " Such
trial shall not be commenced during any session of Parlia-
ment." Lookinfr at that alone, it would e.vclude the session •
but it is subject to the (jualificji^ion, " if at any time it
appears to the Court or a Judge, ti-at, the respondent's pre-
sence at the trial is necessary."

Unless, therefore, this is made to api>ear by the petitioner
or respondent, the trial must be commenced within six
months from the specified date.

Then the section concludes, "and in the computation of
any time or delay allowed for any step or proceeding in
respect of any such trial, or for the commencement theieof
as aforesaid, the time occupie<] by such session of Parlia-
ment shall not be included."

This, it is argued, is an independent enactment, that the
time of the session shall in all cases be excluded. That,
however, is not an admissible construction, as it would
make the clause inconsistent with the earlier part of the
section, though it is capable of one which harmonizes with
it. The natural, and, as it seems to me, obvious meaning
is, that the trial refei'red to in this latter branch of the
section is one at which the respondent's presence has been

402

DOMINION KLKiniON.

[i u

sin

declared or held necessary by the Court or a Jntlt^'e, on that
fact having been made to appear. In such case the time
of the session is not to be included. In other cases the
first part of the section has full scope, and the general ruK;
applies.

The substance of the whole section, in short, is this -.
The trial of a petition is to be commenced in six months
from the date of its presentation, but not during any session
of Parliament which may occur during that period, if tht;
respondent's presence at the trial is necessary, and the
Court or Judge so declares. When that is the case the time
of the session is to be excluded fiom the comi)utation of
the six months.

Sub-sec. 2 of sec. 32 bears out this ccmstruction. The
petitioner is primd facie in default, if he has not within
three months/rom the presentation of the petition procured
a day to be fixed for the trial, and any elector may in that
case apply to be substituted for the petitioner, on such
terms as to the Court or Judge may seem just. It would, I
take it, be an answer to the application to shew that the
petitioner was not in default by reason of the occurrence
of the session, and the necessity for the respondent's pres-
ence at the trial, and therefore that the time was not runn-
ing against the petitioner. But if that excuse was not
shewn, the three months (the first three of the six) would
be running, notwithstanding the session, and failing some
other sufficient excuse, a new petitioner might be appointeil.

These considerations appear to meet theargument that tlie
Court may, as it were, nunc jiro tunc declare that the re-
spondent's presence at the trial was or is necessary. Such
an order is only intended to be made prospectively, to
postpone a contemplated trial, and to excuse it from being
brought on during the session.

In holding, as I do, that on the facts presented to us in
this case, the six months mentioned in section 32 have
expired, I am in accordance with the decisions which have
been pronounced by all the Courts of the other Provinces-
which have had occasion to consider the question

ALOOMA.

463

I think the respondent was not bound to move to dis-
miss the petition, and that he may properly oppose this
motion on the pfround that tlie petitioner is out of time,
and unable to have a day fixed for the trial unless the
Court accedes to his application to enlarge the time ; and
this brings mo to the second question above stated, which
is, whether we ought to do so.

We have recently held in the Kingston Case, (not
reported) that the time may be enlarged under section 33,
notwithstanding the expiration of the six months. The
petition is not out of Court, and, having regard to the
interpretation clause, section 2, and to section 85, and the
construction which has in other cases been placed on
language similar to that of section 33, t think it reason-
ably clear, that the power to enlarge is not necessarily to
bo exercised only within the six months, but may, in a
proper caso, be exercised after that time has expii'od. T
refer to W/meier v. G'Ms, 3 S. C. R. 374 ; Banner v. John-
ston, L. R. 5 H. L. 157, 170, 172 ; Lord v. Lef, L. R. 3 Q.
B. 41)4.

What the 33rd section enacts is, that notvvithstaiidinjj
the stringency of the :{2nd section, the '^^ourt may from
time to time enlarge the time for the commencement of
the trial, if on application for that purpose, supported hy
afidavit, it appears that the recjuirements of justice len-
der an enlargement necessary. Clearly, therefore, it is not
a matter of course ; a sufficient case must be made out
upon affidavit. On the one hand, it is desirable that cor-
rupt practices should be punished and a person who has
gained his seat by improper means should not be permitted
to retain it : and on the other, that the representation of
tlie constituency in Parliament should be finally settle*! as
soon as possible, and the right of the sitting member left
in «loubt no longer than can bo avoided. When the peti-
tioner seeks to enlarge the time which the loflrislature has
prescribed as prima facie the extreme limit for the com-
mencement of the trial, he is really asking the Court to
declare that the former consideration is still to be regarded

59 — VOL. I E.O.

464

DOMINION KLKCTION.

as tho |»;irainoniit one, notwitlistanding the delny. In a
caH«! like the ])re.seiit, where his course has l)eon niiuked hy
almost absolute inaction, it is not too much to ask that
he shall at least condesceml upon some particulars of tho
charj;es relied upon, so ns to enable the Court to jud;,'o of
their importance, and should also furnish some satisfactory
reason why they have not sooner been brouijht to trial.
Unless at the time the petition was presented the peti-
tioner had some knowled<^'(!, more or less accurate, of the
existence of particular corrupt practices, they ouj^ht not to
have been charged. If they were known, what reasonable
excuse is there for not having been more diligent ? It was
never intended that the petition should be kept open for
the purpose of iishing for new charges, and making a case.
of which tho petitioner was ignorant when he presented it.

Here the petition contains many precise charges of iiregu-
laritie.'i which may or may not hav«; atiected the result (»t'
tho election, but they were known to the petitioner in May
last, if not before, as well as they are known to-day. Why
have they not b<,'en proceeded with ? Theio is no satis-
factory explanation of that.

The result of an enlargement would be to hang up the
petition for nearly another yeai", as it could not well be
tried before the next long vacation.

I think the petitioner has entiicly failed to shew that
the re(|uireinentsof justicL^ render an enlargement necessary,
and am therefore of opinion that both motions should be
refused.

■• ;Miv

WEST MIDDLESEX.

465

WEST MIDDLESEX.

DOMINION ELKirriON.

Before FALcoNiuiinGE, J.

Htratiirov, Dertmhrr IS, I4, /.'», rawW 1(1, ISK7.

McNeil v. Roome.

Hirhifi mhirlta —(hmrfijiim i^nlrrs to fmll -Livrif Kt<iltle-h'f/Mrt> — Partner-
ship -('orriipt /iiurticr — //. S. ('. I'. 8, itrCH, SS, i>l.

W., an agrnt of the respondent, was in partnership ah a livery stahle-
keepcT with (i. Uinlor an agreement between them if either partner
took out carri;ig('8 for his own ti»e he was to p;iy hin co-partner half hire
for them. On election day W. took out tNirria/es of tlie partiKtrsliip
and conveyed voters to the poll, and afterwards, after the election, tluly
accounted to (!. far half hire for the sanie.

llelil, that thin constituteil a corrupt practice under 11. .'>!. C. e. 8, Hees.
8S, 91, being a liirinL; of carriagex to carry voters to the jioU, and that
the election of th" res]pondcnt was void.

Semhii', that l\. S. C. c. {(, h. .33, sub-sec. '2 does not prevent a .ludgc pro-
ceeding with th'; trial of an election petition pending the sitting of the
Oivisional < 'ourt of whitdi he i.s a member.

This was an election petition arisinj^ out of the election
of a member for the electoral Di.striet of the We.st Riding
of the county of Middlesex, holden on Fehruury l')th and
22nd, 1S.S7, at which William Frederick Roome, physician
was declared duly elected.

The petitioner was one; John McNeil, a duly (jualified
voter at the .sai<l election, and who in his petition .set out the
usual alleviations of corrui)tpnictice.s and illegal acts by the
respondent and his ag(!nts, and amongst other things that
the re.spondeiit by him.self, his agent or agents, and other
per,s(m.s on his behalf, Wiis guilty of the; corrupt practice of
wilfully hiring and promising to pay for, and paying for
horses, teams, carriages, cabs, and other vehicles, to convey
a voter or voters to or from the poll, or to or from the
neighbourhood thereof at the said election, and prayed that

466

DOMINION KLKCTION.

,'<>

it might l)C (lotorminod tlmt the respondent was not duly
elected or returned, and that the election was void, and
that it might ho declared that he wa.s guiU.y of corrupt
practices and incapahle of holding any ofKce in the nomi-
nation of the Crown or of the Governor General undt;r tlio
provisionH of sec. 102 of the Dominion Klections Act. IM74,
and of .sec. 90 of the iJominion Kle(;ti(m.s Act.

The particulars delivered contained many charges .jf
corrupt practices, all of which were, however, dismissei'i at
the trial except charges 14 and 42, judgment as to which
was reserved.

Charge 14 was, that Thomas Gongh and John B. Oough,
agents of tlie respondent, oH'ered and paid George Kcjifiings
83 to induce him to vote for the respondent.

Charge 42 is fully set out in the judgment.

The trial took place at Strathroy, on December 13th,
14th, 15th, and IGth, 1887, before Falconbridge, J.

S. H. Bloke Q. C, and G. J. Holman, for the petitioner.
W. R. Meredith, Q. C„ U. Becker, Q. C, and Mcyeil,
for the res|iondent.

At the commoncemeut of the trial, the learned Judge
called attention to the fact that a question had arisen as to
his jurisdiction to try this case by reason of sec. 83, sub-
sec. 2 of R. S. C. ch. 9, the Dominion Controverted Elec-
tions Act, which enacts : " No trial of an election petition
shall be commenced or proceeded with during any term of
the Court of which the Judge who is to try the same is a
member, and at which such Judge is by law bound to sit."

He, however, expres.sed his view that the section was
passed previously to the Judicature Act, by which all terms
were abolished ; and that, moreover, he was not aware of
any law binding him to sit in a Divisional Court, if there
was a quorum of that Court without'him.

Counsel for both parties concurred in this view of the
law, and waived any objection to his Lordship's jurisdiction
on any such ground.

WKST MIDDLKSEX.

467

As mentioned in the jiidgineiit, counsel were allowed to
put in a written arf^uinent.

The written argunu^nt as to charge 14. was simply a
comment on the evidence.

The written ttr|.;ument of the respondent in respect to
charge 42, so far an it is necessiiry to set it out here, was as
follows :

The result of the inquiry hiw l)epn to eatnhligh that the election wai a
pure one ; that the reBpondeiit lioni'stly desired that no improper expen-
diture should lie incurred or il!i%'ul not committed on h'u l)ehuir, and
that the election haa l)ecn conducted by hitnHelf and his su'iportersin
accordance with the law. It i.s sou^'ht to xct it asido tor an alleged tech-
niciil violation of the section relating to the hirinj? of teaniH, whore every
precaution was taken by tht; respondent, and those who were further! '^^
bis election to )>revent any such violation, and to keep within the leiier
as well as the spii it of th" hiw.

The cases estahliNh that in order to set aside an election which ha<^
been so condu'; d, and in view of the penal character of the charge, it
must be made out in every particular clearly to the satisfaction of the
tribunal before which it is invest iifated : The Wiyan Cane I O'M. & H.
18H; Tht EcMt Torovlo Cane, U. E. C. at pp. 1)5, 96 and 97; The
Wrnt. Toronto Cane, 1 H. E. C. at p. 123. The charge being' |)enal in its
character, strict proof of it should be required.

The offence against which the statute is directed is the hiring or pro-
mising to pay or paying for any horse, team, or carriage, cab or other
vehicle by any candidate, or by any person on his behalf, to convey any
voter or voters to or lioin the poll, or to or from the neighbourhood
thereof at any election," if the olfence he a wilful one. Now the evi-
dence shews that the horses and vehicles were volunteered ; that the
understanding between Wilkins and the respondent's agents was, that no
charge should be made for them. * * It is not pretended that there
was a hiring unless Wilkins can be said to have hired the horses and
vehicles from the firm of which he was a member. The evidence taken
most strictly against the respotident does not establish this ; the most
that is shown is, that when the partnership was formed, an understanding
was come to between the partners that when one of them took out "a
rig," he was to allow the other partner his share of whi^t the profit would
have been if it had been let to a stranger. • * At the very
utmost, even if the arrangement spoken of by Gustin, can be connected
with the use by the respondent of the horses and vehicles, it amounted
not to a hiring, but to ati agreement that one partner should indemnify
the other for the loss sustained by him because they were not hired. How
can it be said that there was a hiring of a vehicle, assuming that there

4G8

DOMINION ELECTION.

•-av^'

l< i?

ould be a hiring by a partner from his firm, it was not of a horse or a
vehicle, but of the undivided interest of Gustin in it? There was not
and could not be a hiring by one jiurtner from the firm of v^hich lie was
a member. It is not as if the partnership had been a corporation — here
it is alleged that Wilkins hired practically from hmiself. The rases of
flolmes V. Hinijiim, 1 B. & C 74 ; Ihnialdxon v. WUHmm, 1 C. & M.
346 ; Lucas v. lifnch, 1 So. N. K., per Tindal, C. J., at p. 357, show
that no action could be brought by Gustin upon the facta as put by Inm
for the hire of the horses and vehicles in question. And it issulunit'^d
that it is a fair test to say that if Gustin could not have sued his partner
on a contract to pay for the hire of them, there was no infraction of the
Election Act in what was done.

The hiring mu3t be of " any horse, Ac, to convey any voter or voters
to or from the poll, or to or from the neighbourhood thereof at any
election." Strict proof should be required that the hiring was H r the
prohibited purpose — the conveyance of vott rs to the poll. There is no
evidence to shew this: none of the witnesses say that they were liif'l or
got for any such purpose. * * The nuini)er of vehicles auppiieil was
small, and they may have been usod for purposes othe; than ihose men
tioned in the statute: lIVs/ Tonmtu €a.tt, H. E. C. 97, at pp. 120 121 ;
North V'floria Ca.st, II. E. C. 352, at pp. 2G0-2CI ; IIaUo>' Ca^e,
H. E. C. 73G, at pp. 7-10-741.

If the petitioner is driven to rely on the payment made by Wilkins to
Gustin, and if that can be said to have been a payment for horses, ic.,
to convey voters, &c., which l"or the reasons already givtMi, it is sulmiit
ted that it cannot, the payment having been made after the agency of
Wilkins, if he ever were an agent, had ceaftd, it is clear that the nsjion
dent is not affected by it. On this point the respondent relies on the
authorities cited at the trial. Thui the payment was r4fter the eh ction,
is shewn by the evidence.

The act was not, at all events, a wilful one. See observations of
Mr. .Justice Patterson in the flalfon <W.s(, II. E. C. 736, at p. 741;
YouHij v. Smith, 4 S. C. R. 494, may be cited as opposed to this view,
but the circumstances of that case differ very much froni those of the
Ifalton Ca« , and this cnsje is very similar to the latter one in principle.
Then as to the question of the agency of Wilkins. It is submitted ihat
the acta said to have been done by liim in connection with the election,
did not constitute liim an agent of the respondent: the Eaat /'<tfr-
borovijh Ca^>-, H. E. C. 245, at p. 247 ; as to the Hirdsa/l Case, and the
North Y,rk Case, 1 H. E. C. 63.

The reply of the petitioner to the aliove. so far as it is
necessary to set it out, was as follows:

The fact that all the horses of the livery stables ot Wilkins k Giiatin
were out on polling day engaged in carrying voters to and from the polls,
is clearly established l>y the evidence. * '

WKST MIDDLESEX.

4Gi>

The hirin<» and pajinj; for tlie horses, teams, carriages, Ac, were
clearly estal)li8hed by the evidence. * *

Was it wilful? This |)oint is fully covered by Ihe decisions of
the Supreme Court. See The Si (kirk Election Vase, Youikj v.
Sntith, 4 S. C. R. 4!i4. The Chief Justic*-, at \)H(<e [yO'A »:,ys:
"Ileie the illegal net was doi:e without aiiy legal excuse, and without
any ignorance or niislake in fiut, and consequently it was a wilful
breach of the law, and consequently a oorrupt act." And at page 204 :
" If a man voluntarily breaks the law this, in the eye of the law, is a wil-
ful act because the act done is a wrongful act without just cause or excuse.
To depiive an uulawiul act of wilfulness, there must be an ignorance or
mistake of fact, not excuse or error in point of law."

Mr. Justice Gwynne. at page ;') 14, says : "Now that the hiring here
was wilful, that is, intentional, th< re can be no doubt, and the excuse that
liie party doing it did not know iha. it was made a corrupt act, or that it
was an illegal act, cannot be received without frustrating the intent of
the Icyislatuie by a judicial repeal of tl.c Act — iijuoi-anlid Jiii-it tion
cxai-int.^'

See Iliitsoii v. Ahliott, 2") L. C. J. at page 3115; AV Sorlh Simroe,
U. E. C. .OO , /iV rriui-e h'ltirard, il>. page 4.5; ('oojur v. S/ailr, C H.
of L. Cas. 74(i ; AV I/a/to)!, H. E. C. 7:56.

To go no further, the agency of Wilkins is clearly established. * *

See the Wukijiild fW.sr, 2 O'M. & H. 102. Agency is suflici»ntly
established if ii is shewn that the jiarty promoting the election was can-
vassing and doing acts tending to promote the election [novidt'd the
candidate or his authorized agents have reasonalde knowled,'i) that these
persons are so acting with that object.

The contention put lorwaid by the respondent that the fai.'t of Wilkins
being a member iS the firm itself, alters the legal effect, is not well
founded. It would carry the pro|)08ition to this absurdity that if a share-
holder in a railway company paid the lailway fare of voters it wiiulii not
be a coriupt act liciiuse the shareholder would receive some return In
the way of dividends from the railway, and consequently it was not a full
jiayment for the particular ticket. The iiuestion under the statute is not,
liow much has been paid in this way, but has anything been paid? has
there been any violation of the statute? The agieement between the
partners was one formed before the election, and was subsisting every
moment during the election, and when the rigs were given to Wilkins on
poUitig day, there was the promise then existing on his part to payGusfiu
therefor. The bargain was complete before the conveyances were used
at all.

There are many suspicious circumstances in connection with the hiring
of thesf! livery rigs on election day * *

The following cases are relied upon : Re North Ontario, H. E. C. at
pages 780, 7'JO ; ib. at page 11)7 205 ; lie Coruwa^i, ib. page 548.

470

DOMINION ELECTION.

111''.

The suggestion made by the respondent as to the liability between the
partners, is not applicable to the present case, in that the rigs were
actually paid for, and the case comes exactly within the letter of the
statute.

February 13th, 1888. Falconbridge, J. — Charge 14.. I
do not tliink this charge is sustained by the evidence, and I
therefore dismiss it.

Charge 42 is, " On or shortly before the day of tlie said
election, the exact day not being known to tlie petitioner,
the respondent and Alexander Johnston, of the town of
Strathroy, banker, William J. Johnston, of the same place,
merchant, and one Wilkins, of the same place, livery keeper,
agents of the respondent, and other persons, agents of the
respondent, or some of them, hired from Wilkins ami
Gustin, of the said town of Strathroy, liver}- keepers,
horses, teams, carriages, and cutters, and other vehicles, for
the purpose of conveying voters at such election to and
from the polls on the day of polling, and the said persons
above mentioned, or some other agent of the respondent,
paid the said Wilkins and Gustin for the use of the said
horses, teams, cairiages, and cutters, and othei- vehicles, at
the said election."

Soon after the reservation of the case at the heariii<r, the
parties asked leave to put in a written argument, which has
recently been done, and I now proceed to give judgment.

The effect of the evidence is as follows :

George Gustin — Livery-stable keeper, carrying on busi-
ness at the time of the election in partnership with George
Wilkins. Their " rigs " (nine in'number) were aU out and
working on election day. Their book shewing the entry
of that date was produced, with the date Februaiy 22nd
changed to 21st. It did not appear who made the altera-
tion. Four of these " rigs " appeared to be charged to Mr.
Johnston. On turning up Mr. Johnston's account in the
book, these rigs appeared charged and were marked on the
opposite page as paid. The witness swore thej' had not
been paid for by Johnston, and gave the following explan-
ation :

WEST MIDDLESEX.

471

" Q. How were they paid for ? A. I told him they were paid for. Q.
What explanation do you give in regard to this? A. The bargain Wil-
kins and I made when we started in together was, when he got a rig out
he was to give mo half, and it I took a rig out I was to pay him half. I
took a rig there that day. I paid him half on it, and the rest of the rigs
Mr. Wilkins paid me half on it; the man in the stable put them down as
they went out. * * * Q. Has every rig on that page, in-
cluding the election day, been paid for ? A. I received my half of
tl.em ; I had only half share interest. Q. I ask you have all these rigs
been paid for ? A. I cannot say ; that on the opposite page indicates I
jrot my share of it. Q. Who paid you that ? Mr. Wilkins paid me my
half. * * Q. Did you or did you not offer to give them on
plpc'tion day for nothing? A. No, I got paid fi)r my half of them.
Q. You got paid for your half of all the rigs on election day? A. I got
paid for my half certainly ; that is what I said before."

Ill cross-examination he said he was a Reformer and was
not in any way paid for those rigs except by Wilkins
allowing liim ono-lialf in settlement of account.

(h'o. Willcivs — A Conservative and a strong supporter of
the party swore he volunteered the rigs on election day for
nothing for the benefit of the Conservative cause.

Q. And thpy were in use all that day? A. I would not be sure, but I
think 80 ; 1 was not there. Q. For carrying voters to the polls ? A.
Yus. sir. Q. You believed they were used for that purpose ? A. Yes,

sir.

Ho says he does not know who chanjjed the 22nd to 21st.

The witness took one of the rigs marked " Lulu and
Ini^'^fy," and drove out into Adelaitle, and voted himself in
No. 1 ward. He took a voter named Bugler to the polls.
He was driving about himself before the election day to
sci' men to get them to vote for the respon<lent, and tliose
trams are charged for in the account rendered to and paid
\'y respond^jnt or his financial agent. Two or more of
the teams so charged for in the account do not appear in
the book at all.

Q. Did Mr. Gustin receive his share for these teams? A. He received
his |)ioper share. Q. He got half ? A. Yes Q. Who paid it to him?
A. I did. Q. For those on polling day ? A. I paid him myself. Q.
Paid him in hard cash ? A Yes, in hard cash. Q. You remember that
lariicularly ? A. Yes, of course I do. Q. Didn't Mr. Roome think it
60 — VOL. I E.C.

If'

472

DOMINION KLhXTlON.

'I!;

strange you were charging for riga used by yourself in this account? A.
I never spoke to him about it. Q. Did you explain to Mr. Roonie what
you used these for ? A. I do not know T did. Q. You did not ask liiin
to pay you for driving around for your own pleasure— did you explain to
him? A. Very likely I did. Q. Did he pay the account without asking
any questions ? A. He did not pa) me at all; I think it was Mr. Len-
fealy paid me. Q. I want to know, did you or anybody check this
account, or did they just take the account and pay it? A. 1 daresay
they kept account of their own. Q. How did they kci-p account,— take
your word for it? A. Mr. Lenfesty knew I was workin<( for the doctor.
Q. How did he know it? A. I told him. Q. When? A. Sometime
in Strathroy, I believe.

He say.s, fm-tluT, that Win. Johnston and Alex. Johnston
knew lie was workinjf foi- the respondent, and that lu; saw
tlie respondent once or twice dnriii<f the eainpaiij;!! ;ind told
him lie was working for hini, and attemled a meetiiii; at
Glencoe where the respondent addressed the people and
asked tlieni to support him and see him tdected.

On cros.s examination, he sai<l he was not a member of a
committee nnd would not be sure he told the respondent
he was working lor him, but thouglit ht; did : that Iw did
not know wliether he told the respon<lent, or any one con-
nected with him, of the arrangement between witness and
Gustin ; and that the settlement with Mr, GusLin was after
the election.

Alexander John.ston, wlm had been proved to be an
agent of respondent, swore tliere was nf> Mrrangeineiit made
that Wilkins should be paid for teams used to get ;)!it the
vote on election dav.

Cross-examined :

4'
li

r l< i

1-1

Q. * * Did you check over the account of Wilkins k Gus.

tin ? A. I think I did ; I think I saw thtm. Q. Did you go over it item
by item, or pay it as presented? A. I went over, I think, with Mr. Wil-
kins item by item. Q. Are you sure of that? A. I think so. Q. I see
onthelGth of Febiuary Mr. Wilkins charges for "JJob and liu;;;^,
$2.2.5." Did you allow that for him to go around on his own pleasure?
A. 1 do not know I checked it over item by item, but I saw the account.
Q. Didn't you think it strange Mr. Wilkins should charge five oi- six
teams for his own use, and charsje the resj)ondent for them? A. I tumk
he was certainly enga^id in canvassing.

WEST MIDDLESEX.

473

Alexander Johnston has shewji hy evidence given on this
and otlier charges (and which evidence, it was agreed, was
to he applicable to all the charges), to have been an agent,
and a very active and prominent worker I'oi' the respondent.

I am of opinion that I must, on the evidence given on
this ehaige, ]>art of which is above set fortn, hold George
Wilkins to have been an agent fur the respon<lent. Mr.
Johnston knew he was engaged in canvassing, and s.fter
the election passed without question items of Wilkins &;
Giistin's account making charges for teams used by Wilkins
during the campaign. Wilkins himself swears (although
he modifies this statem^'nt somewhat on cioss-examination,
and lespondent denies it), that he told respondent he was
working for him, and he attended one meeting, and per-
liaps two, where the respondent addressed the people, jind
asked them to do all thej' coulil for him. By sec. 88, of
R. S. C, ch. 8. " The Dominion Elections Act," it is pio-
vided that :

"The hiring, or promising to pay, or paying for any
horse, team, carriage, cab, or other vehicle, by any candi-
date, or by any peison on his behalf, to carry any voti-r or
voters to or from the poll, or to or from the neighbourhcjod
thereof, at any election, * * are unlawful acts."

And by sec. 91, * *

"Anv wilful offence acrainst any one of the seven
sections of tliis Act next preceding are corrupt practices
within the meaning of this Act.'"

J cite the Revised Statutes for the sake of convenience.

It is clear to my mind on the evidence that the " rigs"
were used to carry voters to and from the polls.

It remains to consider whether there was any hiring,
&c., within the meaniiiif of the section. As to this I would
entertain lio doubt were it not for respondent's contention
that the fact of Wilkins bein<; a mendjer of the firm alters
the legal effect, and renders that a harndess and an innocent
transaction which would otherwise be clearly within the
mischief intended to be provided against.

I cannot give effect to this contention. This agreement

474

DOMINION ELECTION.

:;h;:

< c

I, I

Li!

^^.

f 1

tl']

fit

between the partners .suV»sisted long prior to the election,
and at every instant up to that election Wilkins was in
theory of the law repeating his promise to pay his partner
for any " rig" which he might use, and this was followed
by an undoubted actual payment. In the view which I
have taken, it soen)s to me immaterial that the payment
was in fact made after the election.

Nor can I enlarge the signification of the words " wilful
oft'ence," so as to hold Wilkins guiltless by reason of an
alleged ignorance or mistake of law.

There were circumstances pregnant with suspicion which
it is unnecessary now to discuss, viz., the alteration in the
book of the date 22nd to 21st, the blotting out or blurring
of entries on a preceding page, and the charging in the
account of items which did not appear in the books, the
last fact being suggestive of a means whereby a voluntd ■■
of " ligs" for election day might be to some extent recom-
pensed for his generosity.

I find that a corrupt practice has been committed by
George Wilkins, an agent of the respondent, without the
actual knowledge or coiisent of the said respondent, and
I therefore declare the election of the said I'l'spondent void.

The respondent must pay the peiitioner the general costs
of the petition, and the petitioner must pay the respondent
the costs of these charges which were tried, and which were
dismissed.

The trial of the petition occupied four days, and much
evidence was taken.

Alter hearing it I was, and I still am satisfied, that the
respondent was not only not personally guilt of any cov-
rui)t practice, but that he did all in his power to secure a
pure and lawful conduct of his campaign, and I do uof.
think that corrupt practices extensively prevailed during
the election.

The corrupt practice of which Wilkins is by this judg-
ment determined to have been guilty, may be regarded as
being a verv technical one, and I shall hereafter order him
to be summoned to appear to answer therefor.

A. H. F. L

~ t

)

i'i

EAST ELGIN.

475

( \

he election,
cins was in
his partner
as followed
!W which I
le payment

rds " wilful
cason of an

Icion which
ition in the
or blurring
^ing in the
! books, the
a voluntei '
tent recoin-

mmittcd by
vithout the
indent, and

idoiit void,
eneral costs

•espondent
which were

and much

d, that the
if any cor-
o secure a
i I do no!-.
led during

this judg-

e<rarded as

order him

EAST ELGIN.

DOMINION ELECTION.

Before Street, J.

St. Thomas, December, 27, S8, 29, SO, 31, 1SS7.

Mkriutt V. Wilson.

Corrupt practice — Inducing to vote by loan or gift of money — Enabling to
vole — Payment of travelling expenses— It S. C. c. S, s, 84, sub-sec. (a). —
lb. s. 8S.

When the agent of a candidate asked a voter if he intended to vote, and
the voter said he did not think so, as he could not spare tlie money to
go, hut that if he went he would not vote for the opposing candidate,
and the agunt thereupon lent him the cost of a return ticket ; and the
evidence shewed that the transaction was a bond fde loan and not a gift,
and was not made with the intention of influtncing tl.e vote in favour
of the principal, and that the money was repaid shortly after the election
without any demanti ! ade therefor.

Held, that the above did not constitute a corrupt practice under R. S. 0.
c. 8, 8. 84, sub-sec. (a) or n. 88.

The voter had the will to go and vote, and to votefoi the agent's principal,
but he had not the means to enable him to do so, and these were fur-
nished to him by the agent, but as a bondfde loan, not as a gift. Thus he
was not induced but merely enabled to vote by a temporary loan, and
no breach of the law contained in the above sections was connnitted.

This was a petition by one William Mandeville Merritt
for the unse; ting of John Henry Wilson, who was returned
as elected at the election of a member of the House of
Commons for the electoral district of the East Riding of
the county of Elgin, hoklen on February 22nd, 1887.

The petition was in the usual form, and prayed that it
v.night be determined that the said John Henry Wilson was
not duly elected, and that he was guilty of tlie corrupt
practices and illegal acts charged in the petition as having
been committed by liim, or by his agent or agents, and
other persons on his behalf, and with his knowledge and
consent. The particulars delivered shewed 120 distinct
charges. All the charges, however, except charge No. 19,

if M

\. H. F. L

476

DOMINION ELECTION.

.;,l

li.'.

ill

i n

were withdrawn oidisniissod «t tlio trial, wliicli took place
at St. Thomas, on Dt-comhor 27th. 28th, 29th, 30th, and
31st, boforo Mr, Justice Street.

Charge 19, alle!,'ed that one Thaddens ('omfort, stntc<l to
bo an arrent of the respondent, lent one Ha<^garty Sl.(JO, to
enable him to come to St. Thomas to vote.

The effect of the evidence taken on this charge sufficiently
appears from the judgment.

W. R Meredith, Q.C., and T. W. Crothers, for the
petitioner.

Walter Gassels, Q.C., Coyne, and Farley, for the respon-
dent.

The following cases were cited : Tlie Berth !er Election
Case, 9 S. C. R. 119 ; Cooper v. Sl<nle, G H. L. C. 740, and
The Bolton Case, 2 O'M. & H. 138.

January 31st, 188.*. Stiiket, J. — At the trial of this
petition all the charges were withdrawn by the ])etitioner,
or dismissed, excepting charge No. 19, which alleged a
payment or offer of payment of money by Thaddeus
Comfort, stated to be an Jigent of the respondent, to Samuel
G. Haggarty, a voter, for travelling expenses and loss of
time. Upon the evidence given as to this charge I found
sul»stantially the following facts : Haggaity was a voter
living near liodney in the county of lilgin, and having a
vote in St. Thomas ; shoi'tly l»efore tho election he was
met in the street in Rodney by Comfort, who asked him if
he intended to vote at the election ; he said he did not
think so, giving as a reason that he could not spare the
money just now to go, but that if he did go he would not
vote for Ermatinger : a few days later they again met in
the street in Rodney, and the same answer being given to
a similar question Comfoi't agreed to let him have the $1. CO
which was the cost of a rettu-n ticket to St. Thomas, and
this sum was handed to Haggarty before the election by
one Mavis at the reciuest of Comfort. The parties had
been well known to one another before, and Comfort had

KAST KLGIN.

477

on former occasions lent sums of money to Haggarty which
hud been duly repaid. Both parties swore that it was
uiidtTstood between them from the befjinninj; tliat the
transaction was a loan and not a gift, and the amount
advanced was repaid by Hagjijarty shortly after the election
without any demand by Coujfort, and without any sugges-
tion to Huggarty by any one.

Upon this evidence I found that the transaction was a
bond, fide loan and not a gift : that it was not made with
the intention of influencing Haggarty's vote, or of induc-
ing him to vote for the respondent, but that Comfort
k'lieved that Haggarty would not go to St. Thomas at all
on the polling day unless funds to enable him to do so
were lent to him. At the request of counsel I reserved
jiidgincnt uj)on this charge in order that they might fur-
nisli authorities, which they have since done.

Tlie petitioner relies upon two clauses of the Dominion
Election Act, R. S. C. ch. 8, the rirst being sub-sec. (a) of
sec. S-i, which provides that " Every person wIjo, directly
or indirectly, gives, lends, or agrees to give or lend, * *
any money or valuable consideration to or for any voter
• * in order to imluco any voter to vote or refrain from
voting, or corruptly does any such act on accotuit of any
sucli voter having voted or rofraineil IVom voting at any
electiim," sluill be guilty of biihery ; and the second being
sec. iS8, which declares tliat'" the payment by an}' candidate,
or by any person on his l>ehalf, of tlie travelling and other
e.\!)enses of any voter, in going to or returning from any
olecti<m, are unlawful acts."

The 91st section declares that, "any wilful offence"
against eitlier of these sections is a corrupt i)ractico within
the nioaning of the Act.

The voter, Haggarty, had the will to go and vote, and
to vote for Dr. Wilson, so far as can be gathered from the
evidence, but he ha'l not at liand the means to enable him
to do so, and these means were furnished to him by Com-
fort. If Comfort had intended this as a gift, the case
would, I think, bo brought within section 88, provided

478

DOMINION ELECTION.

Comfort's agimcy wore establishod, as a payniont of tlic^
voter's travellinpf expenses : that section goes further ih\n
sub-section (<e) of section 84, and makes the payment of
travelling expenses illegal, whether the payment is or is
not made with the intention of inducing the voter to vote
8uV)j^ct perhaps to an exception established in the Ualfon
Case, Jf. E. C. at pp. 740-1, where it seems to have been
considered that the payment to the voter after the elec-
tion, of travelling expenses incurred by him before tlie
election, such payment not being made in pursuance of any
agreement or understanding come to before the election,
was not a corru])t practice within the meaning of sections
88 and 91 ; see also the Jkrthuv Case, 9 S. C. R. 118-9.
But I find heie that the transaction was not a gift but a
bond fide loan, which appears to have been voluntarily
repaid by Haggarty to Comfort shortly after the election
without any demand b}' the latter, and in pursuance ui the
understanding, which is implied upon every loan of money
that it shall l)e repaid ; and, therefore, the only secti<jn
which can apply is sub-section {(i) of section 84.

If the position taken by a voter is equivalent to that
which would be expressed by his saying to the candi-
date or his agent, " I will not vote unless you lend
me a sum of money," and the money is thereupon
lent to him, then, in my opinion, the lending of the
money would be to wilfully induce the voter to vote
within the meaning of this clause. But if the position
of the voter is equivalent to that which would be ex-
pressed by his saying " I am willing to vote, but cannot
do so, because I have not the means of going to the poll-
ing place," and the means are thereupon loaned to him to
enable him to go to the polling place, then I think he is
not induced, but merely enabled to vote. I was satistied
at the trial that the latter was the position of the voter
here, and therefore I think that no breach of the law was
committed.

It is urged that such a distinction as I have attempted
to draw opens a fresh door to the inroads of corruption.

EAST ELGIN.

479

and renders more easy tlio evasion of the law ; but it is to
be remembered that all loans by a candidate or his agents
to electors during the progress of a canvass are not de-
clared unlawful, but only those made for certain purposes
;ind with certain objects. Loans made at such a time
must always be the subjects of close scrutiny, and be open
to the suspicion of having been made with an unlawful
object, but if such a scrutiny reveals nothing stiongerthan
the suspicion which has led to it, the loan must not be pre-
sumed to have been made for an unlawful ;»urpose.

It is not necessary, in my view of the facts, to enter into
the question of Comfort's agency.

The petition is, therefore, dismissed ; but, in accordance
with the request handed in to me by counsel for both
parties, I make no order as to costs.

A. H. F. L.

61 — VOL. I E.C.

480

DOMINION KLKCTION.

HALDIMAND.

DOMJX/oy K lectio:

, l;

w;'!.

1. ;

mi','

Before Akmouu, C J., and Street, J.

ToKONTo, January 111, ISSH.

Thomas Walsh, Petitioner, v. Walter IIkmimiriek
Montague, ReHpomUint

Service 0/ prtitiun — Order for Hubnt'ilutwnal mrrire — W/dii Id he nuidc-
OrdfT Jixiixj time for trial — Jur'miirtion an to — Court or Jiidi/t.

Tliore in no power in the Court or a Judge under Bee. 10 of the Doininiiiii
("ontroverted Kh etions Act, (R. S. (". eli. {),) to make lui order within
the first tive days after an election petition in tiled allowiiii; servicf of
Hueh petition in any manner other than that intendeil hy tiie final jiart
of the section.

But where under an order nuido within the five dayH a petition was
directed to he served, among other modes, upon the wife of the rcspdii-
dant at Iuh iloniiciiv at the village of I).

Held, that as service on the reapontlen*; "either i)er8onally, or al In*
iloniici/i'," was good service, within the meaning of the section no onlcr
was necessary, and the fact that the service in tids case was made tnuier
an order aid in/t make it any th(; less a good service.

J/eli/, also, that an or<ler fixing the time for the trial of the petitimi
might l)e made hy the three Judges of a Divisional Court, sittiii);
together, or hy any one of them sitting alone, and that it was in their
discretion to ilisponse with notice of the application under the circum-
stances in this case.

SemMi', a Judge, miking such an order need not necessarily Imj sitting
formally in single Court.

This was an application to set aside an order for substi-
tutional service, and an order fixinj^ the day for the triiil
■of the petition herein, upon the several grounds set out in
the judgment of Street, J.

The order for substitutional service was made on the
same djiy that the petition was filed, and without any etibrt
to serve the latter having been shown, on the ground tliat
the respondent was out of the Province and was nut
expeetetl to return for some time.

HALDIMANO.

481

IMPHUIES

Lrily Ih! Bitting

The motion was made on January 14th, 1888, and wa-s
argued before Armour, C.T., and Street, J.

MrJ'arthy Q.C., and W. M. Douglan, for the motion.
A. B. Ayles worth, contra.

January 10, 1888. Stkkkt, J.— This is a motion made
oil Itehalf of the re.spondimt, the sittinrj member, to sot
aside an order, made in Chanibors by tlie Chief Ju.stico of
this Division, permitting substitutional service of the peti-
tion, the service of the petition, the order made appointing
a day for the trial, and all proceedings had under the order
for substitutional service, or to the alleged service of the
pctiticm, or for an order extending the time for putting in
j)reliminary objections and the time fixed for the trial, or
staying proceedings until the next sittings of the Divi-
sional Court in order that this motion may be made to
tliat Court, or for such other order as to the Court may
seem fit.

The grounds for the motion are (1) that there was no
authority to make the order for substitutional .service
until after the expiration of five days from the presenta-
tion of the petitioi. ; (2) nor to make the same until some
t'Hbrt had been made to serve the petition upon the respon-
dent, wliich had not been attempted ; (3) nor to make the
same until after an order had been made extending the
time for service of the petition and the petitioner had
boon unable to .serve it either upon the respondent or by
leaving it nt his domicile ; and (4) because the order was
not justified or warranted under any orders or rules of the
Court ; and (5) on the ground that there was no sufficient
case made out, nor anv case of the evasion of .service of
the petition by the respondent, (G) and as to the order fix-
ing the time for the trial, because it was made without
notice to the respondent, and becau.se it was made by the
Divisional Court, which had no jurisdiction to make such
an order.

The election took place on the 12th November, 1887 ; a

482

DOMINION ELECTION.

il'

■\>

i I

.it

,"1

recount of the ballots took place, which occupied about a
fortnight ; the return was published in the Gazette on the
10th December, and the petition was filed on the 24th
December. On the same day the order in Chambers, now
complained of, was made directing that service of tlie
petition might be effected upon the respondent by serving
a copy of the petition and notice of the presentation of it
and of the security upon the ivife of the respond .nt, or
any other grown up person, a member of the respondent s
family or household, at his doruieile, in the village of
Dunnville, and by similarly serving another copy of the
petition and notice upon Messrs. McCarthy, Osier, Hoskin
and Creelman, solicitors, kc, of the cit}' of Toi'onto, and
by affixing in a conspicuous place in the office of tlie regis-
trar of the Queen's Bench Division of the High Court of
Justice at Osgoode Hall, Toionto, a notice of the said peti-
tion having been presented, stating the petitioner, the
prayer, and the fact that money has been paid into Court
as security under the Act. And it was further ordered
that service, when effected in accordaace with the provi-
sions of the order, should be deemed equivalent to pei-sonal
service.

In accordance with this order the petition and notices
were, on the 27th December, served upon the wife of tho
respondent, at his residence in the village of Dunnville, ami
the order has in other respects been complied with.

Sec. 10 of ch. 9 of the Revised Statutes of Canada pro-
vides as follows :

" Notice of the presentation of a petition under this
Act, a' id of the security, accompanied with a copy of the
petition, shall, within five days after the day on which the
petition has been presented, or within the prescribed time,
or within such longer time as the Court, or any judge
thereof, under special circumstances or difficulty in ett'ect-
ing service, allows, be served on the respondent or respon-
dents. If service cannot be effected on the respondent or
respondents, either personally or at his or their domicile,
within the time granted by the Court or Judge, then it

HALDIMAND.

483

may be effected upon such other person, or in such other
manner as the Court or Judge, on the application of the
petitioner, directs."

This section is obscurely expressed in some respects, but
a close examination reveals its meaning. If the petitioner
is unable to serve the respondent in the manner intended
by the section within the period of five daj's after the
petition has been presented, he may apply to the Court or
a Judge to have a further period allowed for the purpose.
Having exhausted that period, and upon shewing that he
has been unable during it to effect service in the manner
intended by the section, he may then apply to the Court
or a Judge for an order allowing him to effect service in
some other manner. The result of this is that an order,
made within the first five days after the petition has been
presented, allowing the petitioner to effect service in any
manner other than that intended by the first part of
the section, is beyond the power of the Court or a Judge,
so far as this section is concerned.

Then it becomes necessary to consider what is the
manner of service intended by the section in the absence
of any order allowing service in some other manner.

The section says in effect that the petition and notice
shall be served upoi> the respondent within the five days, or
within such further time as may be allowed by the Court
or a Judge. No distinction is indicated here between the
manner in which service is to be effected during the first
five days and that in which it is to be effected during the
extended time. Then if the petitioner, having exhausted
the extended time, coxnes to the Court or a Judge for leave
to serve the petition and notice in some other manner, he
has to shew that service cannot be effected on the respon-
dent eMher personally or 'd his domicile, and his applica-
tion should be refused, unless he shows that he has been
unable to serve the defendant, either personally or at his
domicile, up to the end of the extended time. The only
logical result of the language of the section, then, seems to
be, that service upon the respondent, either personally or

484

DOMINION ELECTION,

8" *

i) '

at his domicile, at any time, either within the first five
days after the petition has been presented or within the
further time (if any) granted by the Court or a Judge, is
good service within the meaning of the section.

It was argued by counsel for the respondent that the
words "personally or at his domicile" mean "personally
at his domicile, or personally in some place other than his
domicile ; " but the section does not say this, and I do not
think it means it. If that were its meaning the word
" personally," without anything further, would have been
sufficient ; so that in order to give some meaning to those
words in the section indicating an alternative method of
service, which is not to be personal service upon the respon-
dent, but is to be effectual if made at his domicile, I am
driven to the conclusion that delivery to some other person
at the respondents domicile is the alternative method
intended.

The order attacked by the motion directed amongst
other modes of bringing the petition to the notice of the
respondent, that it should be served upon his wife at his
domicile in Dunnville, and this was done within five days
from the date at which the petition was presented. If I
am right in my construction of the section, no order was
necessar}^ and service upon the wife at the domicile of the
respondent within the five days was good service upon
him without any order.

The 11th section of The Dominion Controverted Elec-
tions Act enacts as follows :

'• An election petition under this Act, and notice of the
date of the presentation thereof, and a copy of the deposit
receipt shall be served, as nearly as possible, in the manner
in which a writ of summons is served in civil matters, or
in such other manner as is prescribed."

By the interpretation clause of tiie Act the expression
" prescribed " means " prescribed by this Act or by the
rules of Court made under this Act."

The rules of Court originally made under the Act of
which the Dominion Controverted Act is a revision, pre-

HALDIHAND.

485

acribed (Rule No. 14) that in all cases where the respondent
had not named an agent, or given an address, as he might
<lo under Rule No. 10, service should be personal upon him,
unless otherwise ordered by a Judge.and by RuleNo. 15, that
in case of evasion of service, the affixing in a conspicuous
place, in the office of the clerk of the Court, a notice of
the petition having been presented, stating the petitioner,
the prayer, and the fact that money had been paid into
Court as security under the Act, should be deemed equiva-
lent to personal service, if so ordered by a Judge. But the
rule which required personal service was abrogated in the
year 1881, so that the only manner of service now pre-
scribed, where the respondent has not named an agent, or
given an address, is that prescribed by the 10th section of
the Act. The rule providing for the case of an evasion
of service was, I think, intended to be read along with that
which originally preceded it, and should perhaps have
been abrogated at the same time with the other, or at all
events, confined in its operation to cases in which the time
for serving the petition shall have been extended by the
Court or a Judge.

It appears to be unnecessary, in the view I have taken
of the 10th and 11th sections, to consider the question as
to whether the absence of the respondent should be con-
sidered for the purposes of the proceedings to have been
an evasion of service.

The next object of the motion is to set aside the order
iixing a day for the trial of the issues joined upon the
petition, and the grounds upon which this is asked are :
(1st) that no notice was given to the respondent of the
application, and (2nd) that the order was made by the Divi-
sional Court, and not by the High Court of Justice, or by
a single Judge.

The 13th section, dealing with the fixing of the time for
the trial of the petition, directs that at any time, after the
expiration of the time for presenting preliminary objec-
tions, if none are presented, the Court may, " upon the
ajiplication of either party, fix some convenient time and
place for the trial of the petition."

■i

! I

486

DOMINION ELECTION.

hi ;

If* 'r

II., '

^m^

fell

Mm h i

llfli

By the interpretation clause the expression " the Court
when dealing with elections in the Province of Ontario,
means the Court of Appeal for Ontario, or the High
Court of Justice for Ontario, or any Judges thereof, and
" each of the said Courts respectivel}', shall, subject to the
provisions of this Act, have the same powers, jurisdiction
and authority, with reference to an election petition and
the proceedings thereon, as if such petition were an ordinary
cause within its jurisdiction."

By rule of Court No. 23, it is provided that " The time
and place of the trial of each election petition shall be
fixed by the Court, and notice thereof shall be given in
writing by the clerk of the Court, by affixing the same in
some conspicuous place in his office, sending one copy by
the post to the address given by the petitioner, another to
the address given by the respondent, (if any,) and a copy b\'
the post to the sheriff, fifteen days before the day appointetl
for the trial : the sheriff shall forthwith publish the same
in the electoral division."

By Rule No. 52, no proceedings under the Act shall be
defeated by any formal objection.

The application to fix a time and place for the trial of
this petition was made on the 3rd January, 1888, to the
three Judges of the Queen's Bench Division, who where
sitting to hear the argument of a case which had been fixed
for that day, and the order is drawn up as a Court order.
The material upon which the order was made was the
election petition and the order of the Chief Justice as to
the service thereof, the affidavits of service of the petition
order and notices, an affidavit of the solicitor for the peti-
tioner of search made in the proper office, and that no
preliminary objections, or any further proceedings upon
the petition, and no answer had been filed, and an affidavit
of Charles Wesley Colter, the defeated candidate, stating
his belief that it was of the utmost importance, in the
public interest, that a speedy trial of the petition should
be had, and that the charges made therein should be
proved or disproved at once, and before another session of

HALDIMAND.

487

the House of Commons should take place. The Canada
Gazette at that time contained a notice callin<^ Parliament
together for the dispatch of business on the 31st January.
It was stated by counsel for the applicant, and his state-
ment has since been verified by affidavit, that the solicitors,
upon whom the petition had been served in pursuance of
the order for substitutional service, had repudiated all con-
nection with the petition.

I think the three Judges sitting together, or any one of
them sitting alone, might have made the order fixing tlie
day of trial, and that it was in their discretion to dispense
with notice of the application, under the circumstances.
Notice of the day fixed has been given by the sheriff, and
the petitioner has subpoenaed his witnesses to attend on
the day so fixed. I think the objection is, under the cir-
cumstances, a formal one, and that the form in which the
order has been drawn up, as an order of the Court instead
of an order of the Judges composing the Court, is a matter
which, if necessary, may be now corrected.

I do not think that a Judge making the order in
question, should necessarily be sitting formally in single
Court.

The notice of motion asks, in the alternative, for an
order extending the time for putting in preliminary objec-
tions, and the time fixed for the trial, or for such other
order as the Court may deem proper.

In the view I have taken of the statute, the proceedings
of the petitioner have been subst. itially regular, and I do
not find, upon the material before me, any definite grounds
stated and shown upon which we could, in accordance
with the usual practice upon such applications, grant an
extension where such extension is ^ matter of indulgence
and not of right.

TJie result will be that the motion is dismissed — the
costs, excepting the costs of obtaining the order, to be
costs to the petitioner in any event — the petitioner will
be entitled to no costs of obtaining the order for substitu-
tional service.

62— VOL. I E.c.

;' 'i r

488

DOMINION ELECTION.

Armour, C. J. — I agree ,in the result of my brother
Street's judgment, and in the view he has taken of the
statute as to the mode of service of the notice of the pre-
sentation of a petition.

In this view it is unnecessary to discuss the question
whether the facts warranted the making of the order.

The service effected was a good service, and the fact
that it was made under the order obtained herein did not
make it the less a good service.

I am of opinion, however, that evasion of service may
take place where a respondent has no domicile, within the
meaning of that term, as used in the statute, and that in
such case an order for substitutional service may be made
immediately on presentation of the petition.

G. A. B.

'h>

EAST DURHAM.

iSO

EAST DURHAM.

PROVINCIAL ELECTIOX.

Before Maclennan, J. A., and FalcOxNbridgk, J.

M1IJ.BK00K, November 27th, 1890.

Voters^ lists— Irregularitien in certified copy uj — Iii(iht of omilled voter.*
to rote— " Ontario Voters' Lists Act, 18SD," "ecx. and 17—'' Tendered
ballot "—Right to vote by—R. S. O. ch. 9, seen. 71 and 103— Scrutiny.

Auy one of the three voters' lists regularly prepared, and certified to by
the County Court Judge under the Voters' Lists Act, " is the proper
liat to be used," and incase of irregularity in, loss or destruction of, or
other accident to, the other or others, may be resorted to for the pur-
pose of the election.

Where all the requisite preliminaries in the preparation of voters' lists
under the Act had been duly observed, but in one of the printed copies
delivered to the County Court Judge, and certified to »)y him, two pages
containing voters' names were accidentally omitted, and this defective
copy was sent by the Judge to the clerk of the peace, who from such
copy certified to the returning officer similarly defective lists, wliicli were
used at the election : —

Held, that the voters whose names were so omitted were not disfran-
chised : —

Held, also, that those voters so omitted, were entitled to vote by "ten-
dered ballot," and their votes should be counted on a scrutiny.

Sevible — The efteci of sections 72 and 103 of the " Ontario Elections
Act," is that where a person who has a right to vote is omitted from
the list he may vote by tendered ballot.

This was a petition under the " Ontario Controvertetl
Elections' Act," by T. B. Collins, the defeated candidate,
ai^ainst George Campbell, the sitting member in the Legis-
lative Assembly' of Ontario, for the electoral district of
East Durham, who was declared elected after a recount.
The election was held on the 29th May and oth June,
LS90. The petition alleged that copies of voters' lists
<lelivered to the deputy returniiig-officer& jippointed to
preside at polling places in polling sub-divisions four and
live, of the township of Hope, in the electoral district,
and used by the said deputy returning-officers, were im-
perfect, improper, and irregular voters' lists, and were not
63 — VOL. I. E.C.

490

PROVINCIAL ELECTION.

m % 4l

yii .

( t

true copies of the list certified by the county Judge as tlie
proper voters' list, and that a number of names of persons
who were entitled to vote at the election, and who claimed
that their names ought to have been entered on the said
voters' lists, were improperly omitted from the said copies,
and that the said ])ersoiis were entitled to mark, and did
mark in favour of the petitioner, tendered ballots under
the " Ontario Elections' Act," and asked for a scrutiny and
chiimcd the seat.

The petition also alleged corrupt practices by the sitting
member personally and by his agents.

The petition was tried at Alillbrook, in the electoral
district, on :27th November, 1890, before Maclennan, J.
A,, and Falconbridge, J.

McCarthy, Q. C, and R. Radly, for the petitioner.
Ayleswoii/i, Q. C, and /. A. V. Preston, for the respon-
dent.

It ajipeared that at the election the total number of
votes polled for the respondent was 1,314, the petitioner
obtaininij: 1,301.

The irregularity complained of in the voters' list, arose
in this way. The list was i:)repared and j)rinted in the
usual way, and the three copies required b}'' the " Ontario
Voters' Lists Act, 1889," sec. 5, were duly sent to the
County Court Judge. From one of the copies so sent, two
pages containing sixty-live names, were, by a mistake ia
stitching, accidentally omitted, and the learned Judge taking
it for granted that the printed copies were all alike, appended
his certificate, according to the statute, to each of the
three copies, and sent one to the clerk of the peace for the
county. This copy happened to be the defective one.
The clerk of the peace in turn furnished the returning-
officer with copies certified from the list filed in his oflSce
and which were therefore similarly defective.

On the polling day, the fact that the lists were defective
was known to both parties. Twenty-eight voters out of

EAST DURHAM.

491

those whose names were omitted, attended to vote, but,
their votes were refused by the deputy returning-ofRcers,
except by " tendered ballot," and they accordingly voted
in that way.

McCarthy, having stated these facts, called evidence in
supj)ort of them.

He also put in the tendered voters' lists for sub-divisions
four and five, and proposed to open the tendered ballots.
Aylesworth objected, contending that there was no pro-
vision for adding tendered votes to the poll, and also
argued that under section 71, R S. 0. ch. 9, the list in
(juestion sent to the clerk of the peace being " the proper
list to be used," was the only one that could be used; and
that in the event of a new election, the same defective list
would have to be used again, and that the omitted voters
would ajrain be disfranchised.

The evidence w^as admitted and the tendered ballots were
examined subject to the objection.

McCarthy then urged that the tendered ballots should be
added to the poll, which would give the petitioner ;i
majority of two. He also contended that the election
should not be set aside on account of those voters on th(!
omitted pages of the list, who, having had an opportunit}'
of doing so, had not voted, as they had virtually been
parties to their own disfranchisement.

Their Lordships retired to consider the questions raised,
and .subsequently on returning into Court, delivered the
following judgments :

f 'I

j't!, I.

Maclennan, J. A. :

We have now had an opportunity of consulting together
upon the question which has been raised, and we are
prepared to decide the question. We regret that we have
not had an opportunity of putting in writing the con-
clusion to which we have come, because the question raised
is a new one, and one of very general importance. But tlie
stage at which the question has been raised in this case

492

PROVINCIAL ELECTION.

it ''1

dxtea not admit of the judgment being postponed, and
therefore we propose to state briefly the reasons for the
conclusions to which we have come.

It has been well argued by the counsel on both sides,
and we think there is nothing that could bo advanced,
which has not been advanced, to enable us to come to a
sound conclusion upon the question. The facts are simply
these, that the voters' list was prepared by the Clerk in
accordance with the statute, and was posted in the various
ways prescribed, so that every voter in the constituency,
every person who claimed to have a vote, could see whether
his name was upon the list. That list was prepared and
printed in the usual way, and three copies which are required
to be delivered to the learned judge of the county were so
delivered to him. It turned out, however, that one of the
printed copies which were delivered to him was erroneous ;
it omitted sixty-five names which were upon the list
which was prepared — names to which no objection had
been made, and which had a right to remain upon
the certified list of voters. The learned judge certified the
copies, taking it for granted, as one might reasonably do,
that the printed copies were all alike ; and that no objec-
tion having been made to the votes, all he had to do was
to append his certificate as prescribed by the statutes, to
the three copies with which he had been furnished. Of
the three copies, one of them, it seems, omitted the names
to which I have referred. The judge retained one, sent one
to the clerk of the township, and the other to the cleric
of the peace. The last one unfortunately was the one
which was defective. Then the returning-officer applied
to the clerk of the peace for a certified copy, from which
he was required to furnish to the deputy returning-officers
their lists, and in this copy sub-divisions four and five
were defective, and the election came on. The question
which we have to determine is, what effect that omission
had upon the election ; whether in the first place, the
omission of their names from the lists supplied to the
deputies had the effect of disfranchising those sixty-

EAST DURHAM.

493

five voters ; and if so, wliether tbai necessarily made the
whole election null and void, or whether the Legisla-
ture has provided any other means to save the election,
and to save the franchise of these individuals under the
circumstances. After hearing the very able arguments
which have been addressed to us, we have come to the con-
clusion that these voters were not disfranchised ; that the
lists which had been certified by the learned Judge of the
county — one of which he had retained, and the other of
which he had sent to the clerk of the township — were the
true lists, and the list sent to the clerk of the peace was an
erroneous one. We think one object the legislature bad
in view in providing that three copies should be prepared,
was just to prevent such an accident as happened in the pre-
sent case, that in case one copy — for example the one suppli-
ed to the clerk of the peace— should be lost or stolen, should
fail of being delivered upon transmission, or should any
other accident happen to it, the voters' list was still acces-
sible, it was still there, a certified list. Even if two of them
were lost, there would still be a third which could be
resorted to for the purpose of the election, for that was
doubtless the object the Legislature had in view in pro-
viding the three copies. We must keep in mind the idea
the Legislature had in view, and we should not do any-
thing in the way of defeating the object of the Legislature.
The Legislature intended that there should be an election,
that the electorate should know beforehand who the author-
ized electors were, and that a record should be kept of those
persons entitled to vote, and we think we ought to put sudi
a construction on the Act as will efiectuate the object of
the Legislature.

When we look at the various sections of the Act, not-
withstanding the criticism applied to it by Mr. Aylesworth,
we see that it is not necessary to say that the copy of the
voters' list which was sent to the clerk of the peace is to
govern, if it be erroneous. I think when the various
sections of the Act are looked at. that will be appar-
ent, and I may occupy a little time in referring to those

494

FUOVINCIAL ELbCTiOX.

. 'v

) t
1

'U '

I.I

sections. [The learned Jiulgo then referred particularly t(.
sections 3, 5, 7, 10, 10, and 19 of the Voter.s' Lists Act.nud
drew therefrom the conclusion that the names of the sixt}'-
ttvo persons in question being found in two of the listv
certified by the County Judge, their right to vote was not
destroyed by their omission from the third list, even thou;,'h
that was the one sent to the clerk of the peace. He then
proceeded :] Section ID says that every such certified list
•'shall upon a scrutiny bo final and conclusive evidence of
the right of all persons named therein to vote at any elec-
tion at which such list was or could have been lejrallv
used." We are here upon a scrutiny, two lists prepared
and certified as the statute prescribes are produced con-
taining the names of these sixty-five persons, and we think
vr. are bound to hold notwithstanding their omission froui
another list that these persons had a right to vote.

Referring now to the Election Act, the sections which
are material are sections 7, 71, 72, 103, and 206, and they
must be all read together. Section 7 declares that the
following persons and no others * * shall if duly
entered on the list * * be entitled to vote, and section
72 says that " subject to the provisions of section 103 no
person shall be admitted to vote unless his name appears
on the list." Being named in the list is therefore made
essential, subject to section 103 which provides for tendered
ballots. Now look at that section 103 which provides, "If
a person whose name is not entered on the voters' list claims
that his name ought to have been so entered, and that it
has been improperly omitted therefrom," then he may mark
a " tendered ballot." He may vote, in other words. He
may deliver a qualified vote. And if we read sections 72
and 103 together I think it is plain that the Legislature
made this law so that every man whose name is found on
the list may vote, and that every man who has a right to
vote, even if his name is not on the list, may vote in tliis
qualiaed way. He may mark a ballot indicating for whom
he votes, and it may be counted upon this stage of the
proceedings, viz., a scrutiny. <

EAST DUllHAM.

4!>r>

That I think is the ettect of those two sections. It wus
contended that wo have no right to put any vote on the
list. Now wo think it clear that section 103 would have no
moaning, would ho wholly nugatory unless we have tlu>
power to add those who have votod by tendered ballots.
Section 103 would fail of its object altogether and would
he utterly useless. But we are not without authority on
that point. It has been determined that upon a scrutiny
voters who have marked tendered ballots have the right
to be added to the poll; Rogers loth ed. GG3, Leigh &;
JjeMarchant, 173; so also in the Lincoln Case, H. K. C.
500, at p. 518, Mr. Justice Patterson assumed thatsuch wn.s
the result of the enactment, that the sole object in allowing-
people to mark tendered ballots, was that they might bo
added to the poll, upon a .scrutiny, if it turned out they
had votes.

With regard to Mr. Aylesworth's argument upon section
71, which notes " the proper list to be used " we think wo
cannot put such a narrow con.struction upon the Act as he
contends for. We think there are other parts of the Act
which show that the Legislature did not intend that the
copy sent to the clerk of the peace was to bo the only one
which misjht be used.

Then there is section 200, which provides that every per-
son applying for a ballot paper under the Act, shall be deem-
ed to tender his vote or to offer or assume to vote. It will
l>e observed the mere application for a ballot is a tejider of
a vote. The retnrninrf-orticer might refuse to give a voter
even a tendered ballot, but if he applies for a tendered
ballot, then he must be regarded as a person who has ten-
liered his vote. " Every person applying for a ballot paper
vmder this Act shall be deemed to tender his vote, or to
offer or assume to vote ; and any person shall be deemed
to have voted who has put his ballot paper into the ballot
box, or hps caused the .same to be put into the ballot box,
or has delivered the same to the deputy returning-ofHcer
or poll clerk, for the purpose of having the same placed in
the ballot box." The statu e provides that tendered bal-

49G

PROVINCIAL ELECTION.

v'r- r

> t !

'. f

111

1 t

t, 3

lots should be put in the ballot box, so that we think —
although it may seem at first a strong construction of the
section — when the voter receives a tendered ballot aad
marks it, and delivers it to the returning-officer, under this
section he is a person who has voted ; and we think ali
those persons who tendered their ballots in this case are
persons who have voted, the distinction being that I'.e
person voting marks the ballot for the candidate of his
choice ; he has voted, although the returning-officer, as
required, has not counted the vote. The time arrives
when his vote will and car. be counted, and we think that
time has now arrived, that it is our duty now to declare
that those persons had the right to vote, and are entitled
to have their votes counted, notwithstanding that they were
not upon the list delivered to the deputy returning-officer.
He did his duty in refusing to let those persons vote in the
ordinary way, but by means of the tendered ballot, he
saved their votes until the present time to be counted.

Now section74, of the Controverted Elections' Act, which
provides for a scrutiny, refers to "the votes polled." These
tendered ballots were " polled," and we find they were cast
by persons entitled to vote, and we therefore think we
ought to count them.

Only twenty-eight of the sixty-five omitted voters put
in tendered ballots, and it is said the others were dis-
franchised.

That would have been a very serious difficulty, because
if there were thirty-seven who had a clear right to vote,
rnd who were disfranchised by mistake, then it would have
u 3n a very serious thing, and we could not allow the elec-
tion to stand, because we do not know how those thirty-
seven persons would have voted, and it was admitted by
Mr. McCarthy that he could not hope to make the poll of
his client so large, that if they were counted against him,
he would still have a majority.

We do not think that those thirty-seven were dis-
franchised at all ; we think the provision made for tendered
ballots was intended for just such a case. The lists certified

EAST DUllHAM.

497

by the count}' Judge, one of wliieh he retained, and one
of which he sent to the clerk of the townsliip, are made
final and conclusive as to the right of persons to vote.
They bring these certified lists before us, and say their
names are upon it, and the Legislature says these lists are
final and conclusive as to their right to vote, therefore when
they went before the deputy returning-oflBcer, they had a
right to vote, and they had a right to demand a tendered
ballot paper. Every one of the thirty-seven might have
gone to the poll and might have tendered his ballot for the
candidate of his choice, and might have put it in so that we
could now have given them the benefit of their votes for the
candidate whom they preferred. Therefore these persons
are not disfranchised, and we do not think that on that
ground the election ought to be avoided. We do not know
whether any one of the thirty-seven chose to go to the
poll at all, or ^Yhether he would have gone to the poll if
his name had been regularly on the list, so that on that
ground we could not set aside the election. We, there-
fore, think that those persons who tendered their votes, are
entitled to have the benefit of their ballots, and should be
added to the poll of the respective candidates for whom
they marked them. There is no dispute now between
counsel that the number of voters which has been men-
tioned, are persons who really had a right to vote. Ten
ballots in the first list were for Mr. Collins, and two for
Mr. Campbell, and ten in the second list for the foi-mei-,
and six for the latter, which leaves Mr. Collins two votes
in the majority.

,■!;/

Fai^conbridge, J. : —

I agree in the gen».ral result of tlie judgment. The only
point of difference was as regarding the votes of the thirty-
seven electors — less the number who are disfranchised by
residing out of the riding — who were not upon that list.
The question was, then, whether we would go into a scru-
tiny further, or avoid the election on that ground. As I
64 — VOL. I. E.G.

498

PROVINCIAL ELECTION,

said, I have felt strongly about that, but in view of the
fact that the parties are here, no doubt at enormous expeiisc
]>repared to go into the scrutiny, I think it better to agivit
on that as well as upon the main question.

Of the tendered ballots, twenty were marked in fav(nu-
of the petitioner, and eight in favour of the respondent,
thus giving the petitioner a majority of two. Subsequently
upon further scrutiny, the votes were brought to a tie, and
no evidence having been otfered of corrupt practices on
either side, the election was avoided without costs.

V'i

HAMILTON.

40!»

HAMILTON.

PROVINCIAL ELECTION.

Before Ferguson and MacMahon, JJ.

Hamilton, December 11th, 12(h, 13th, loth, 16th, 17th, aM 10th, 1890, ami
Toronto, Jamiarij 17th and 26th, 1S91.

Mark Johnstonk Patterson, Petitioner,

Thomas Henry Stinson, Respondent.

Offer to treat — R. S. 0. ch. 9, sec. 155 — Valuable consideration — Sec. lot,
sub-sec. (a) — Scheme to induce a class (aliens) to vote ichen not entitM
— Knoioledye under sec. 160 — Statute, partly penal and partly remedial
— Amendment after notice — Corrupt practice — Trijiin>j nature — Tri-
Jtimj extent — Sec. 163.

Two agents of the respondent went for a voter, having a flask of branily
in their conveyance. The voter having said he was unwell was askud if
he would have a drink, which the trial Judges held meant a drink from
the flask, and which he declined : —

Held, that this offer did not fall within the provisions of sec. 155 R. S. O.
ch. 9, as there was no "giving or causing to he given " : —

HeUl, also, that it did not come within sec. 151, sub-sec. (a) a drink not
bein^ a valuable consideration.

A numoer (300) of forms of oaths of residence and allegiance were printed
and paid for by the association supporting the respondent as part of the
election expenses, and some of the respondent's agents actively can-
vassed a number of foreigners, who were aliens ; and by getting them to
swear to these affidavits, and by conversations induced them to believe
that they were thus naturalized, and had the right to vote, and several
of them did vote. The evidence did not shew how many were sworn,
but 2.35 unused forms were produced, and the remaining sixty-tive were
not accounted for : —

Held, that the procuring of these affidavits just before the polling day
when the agents knew that no Court would sit in time to complete the
naturalization proceedings by that day, was apian, design, or scheme to
induce the aliens to vote for the respondent: that the knowledge, referred
to in sec. 1(50 R. S. O. ch. 9, ia not a knowledge of the statute, but a
knowledge of the facts disentitling the person to vote : that although
that section contains a penalty of $100, still it is partly penal and

500

PROVINCIAL ELECTION.

ti'f

partljr remedial : that in enforcing the penalty, the person against whom
it is iuflicteil is the only person concerned, and it should be strictly
construed ; but in ascertaining whether a corrupt practice has been
committed the whole constituency has concern, and only the remedial
part of the section is invoked : that on the evidence an agent had the
knowledge that one of the aliens had no right to vote at the time he
induced him to vote.

Before tlie trial notice was given that if the evidence failed to shew that
the money received by the persons named in charge No. 8 for the pur-
pose of influencing voters as therein stated, an application for an amend-
ment would be made substituting a charge under sections No. 11 and 13
of the petition, that those persons were paid for their services, and so
were guilty of corrupt practices in voting for the respondent, knowing
that they had no right to vote : —

Held, that two agents of the respondent who were paid for their services,
knowing the facts and being presumed to have known the law, were
each guilty of a corrupt practice when they voted for him ; and
that the amendment as to them should be allowed, as it was really
giving particulars under paragraph 13 of the petition, and could be
made without any amendment of the petition, and that the evidence
sustained it, and as notice had been given the respondent was not
prejudiced : —

Held, also, that the acts of the two paid agents in voting, had they stoo<I
alone, not being part of any comprehensive scheme, the Court would
have hesitated oefore deciding that they did not fall within section
163, in which case the election would not have been avoided : but fol-
lowing the East Simcoe Case, 1 E. C 291, that the inducing the aliens
to vote was an overt act, part of an arranged system of operations,
and was such a corrupt practice as could not be considered of " such
trifling nature," or "such trifling extent," that the result could not
be supposed to be affected by it.

Had the corrupt practice indicated not been sufficient of itself to avoid
the election, the two other corrupt ijractices proved, together with
certain other illegal practices committed by a person not an agent of
the respondent, the evidence as to which was uncontradicted, would
have sufliced.

'■1

ri"'i

This was a petition filed by Mark Johnstone Patterson,
«,n elector of the electoral division of the city of Hamilton,
who voted at the election against Thomas Henry Stinson,
the successful candidate, who had been elected by a
majority of eighty-six votes in a total of eight thousand
and sevent3'-six votes polled.

The petition contained the usual charges against the
respondent and his agents of bribery, treating, paying
travelling expenses, and also the procuring of a number
of aliens to vote, who had made the affidavits of residence
and allegiance only, without the subsequent court proce-
dure necessary to perfect their naturalization ; it also
alleged a payment to a captain of the Salvation Army, and
to a citizens' band.

HAMILTON.

501

Osier, Q. C, and Teetzel, Q. C, appeared for the petitioner.

Meredith, Q. C, Neshitt, Q. C, and Bicknell, appeared for
the respondent.

After hearing the evidence and addresses of counsel
judgment was reserved.

January 17, 1891. Ferguson, J. : —

There was a very large number of charges contained in
the particulars delivered pursuant to orders made therefor.
Some of these were abandoned by the petitioner, and
many others were disposed of at the trial. Counsel have
been good enough to prepare for us a paper containing a
statement of the charges that were neither abandoned nor
so disposed of as being those in respect of which judgment
has to be given ; and no doubt is entertained that this
statement is in all respects accurate.

It will, I think, be convenient to consider the charges in
the order in which they appear in it, or substantially so.
The charges are numbered in the margin of this statement,
and these numbers indicate and correspond with the num-
bers of the same charges respectively in the particulars filed
and delivered as aforesaid.

[The learned Judge first considered an alleged payment
by the respondent of a sum of $10 to one Dent, and came
to the conclusion upon the evidence that the charge was
disproved.

There were certain charges called the " Collier charges,"^
the evidence in support of which was given by a Colonel
Collier; and it was admitted by the responflent's counsel
that if the alleged agency of Colonel Collier were proved,
some of the acts ^shewn would be corrupt practices, which
would have the effect of avoiding the election. It ap-
peared that this witness had two objects in view in taking
part in the election ; one to win money by bets he had
made on the respondent ; and the other to satisfy a grudge
he had against the other candidate. The learned judge
having considered the evidence bearing on the question of

! : 1

502

PUOVINCIAL ELECTION.

I il

the agency of Colonel Collier came to the conclusion that
he was not constituted an agent, and was not an agent of
the respondent, and he dismissed these charges.

Other charges of treating and buying refreshments and
hijing conveyances were also dismissed, and the learned
Judge then continued] :

The next in order is charge thirty-five. It reads " that
on the 5th day of June, 1890, W. H. Cornwall and Hugh
Gawley, of Hamilton, labourers, agents for the respondent,
offered John Fanning, of Hamilton, labourer, $1.50, and
also a drink of liquor at his residence, Hamilton, to induce
the said Fiv.v * ->• to vote for the respondent."

The eoni ^fv.-^n of this is now confined to the offer of
the liquor . Iak^ iiiiding at the trial having been that the
offer of tii'^ money liad not been made. As to the offer of
the liquor, Oori. all Gawley went for the voter Fan-

ning, Gawley had m ith iiihi in the buggy or rig, as it was
called, a half- pint flask of brandy. During the conversa-
tion with Fanning respecting his going to vote or not,
Fanning said, amongst many other things, that he was not
well, and Gawley asked him* if he would have a drink
meaning, no doubt, a drink from this small flask of brandy.

This, I think, does not fall under the provisions of sec-
tion 155 of the Act, R. S. O. ch. 9. There was no giving
or causing to be given. There was only an offer made
under the circumstances before stated.

The contention was that the case falls under the pro-
visions of section 151, sub-sec. (a), the offered drink being
a valuable consideration w-ithin the meaning of those words
in that sub-section. Counsel, in this contention, sought to
compare the case with one in which a barrel of liquor was
offered instead of a drink, urging that the difference
would be only one of degree. I do not perceive the force
of this argument. A barrel or other large quantity of
liquor would be, or might be, a thing of value out of which
money could be made or saved as a matter of business or
otherwise. Not so with the drink onl}', which is to be
taken immediately. I do not see how the one must be a

HAMILTON.

.503

to be
ist be a

valuable consideration because the other might be. But
apart from any consideration of this sort, it appears to me
that one part of the Act professes to deal with, amongst
other things, drink, and does not go further than "giving
ov causing to be given," and does not include an offer to
give. The other part deals with corrupt practices, and
other illegal acts, and gives certain definitions of briber}-.
I cannot bring myself to think its provisions comprehend
this sort of a ease at all ; or that the offer of a drink, such
as made here and rejected, was the offer of a valuable con-
sideration, within the meaning of the sub-section (a).

I am, thei'efore, of the opinion that what remains of this
charge should be dismissed.

The next charge in order, is number 113. It is this:
" The respondent, Francis Fitzgerald, his election agents,
William Goering, Rudolph Rissman, and the members of
the management and executive committee, * * all of
whom were agents of the respondent, devised and adopted
a scheme to procure and induce a large nui.iber of aliens,
resident in Hamilton, to poll their votes * * for the
respondent, and in pursuance of said scheme, the respon-
dent and said agents led the said aliens to believe that
they became qualified to vote by taking an affidavit of
residence and allegiance only, without the formal proceed-
ings in open court, as required l)y law, and that in further
pursuance thereof, the said Fitzgerald and Goering pre-
pared, or caused to be i)repared, and swoi-n a large number
of such affidavits by said aliens, from time to time, be-
tween May 1st, and June oth 1890, * * and thereby
induced and procured the said aliens to vote for the respon-
dent. And among the said aliens who were so indued to
vote, ai-e the following ; all of Avhom reside in Hamilton —
namely, Jacob Brownstein, William Lenz, W^illiam Beck-
man, John Hackbush, J. Peaser and Herman Prellips."

It does not appear that the matters referred to in this
charge, were the subject of any discussion, or any resolution
at any meeting of the association or any of the commit-
tees.

t I

504

PROVINCIAL ELECTION.

M ''

•■■

Fitzgerald, the respondent's election agent, says he
knows something of the alien votes; that the form of
oath for an alien was prepared by some one in his office
before the election, and was " printed off ;" that he does
not know of any one having charge of the alien vote •.
that he does not know where the affidavits are —
meaning, as I take it, the affidavits that were sworn
to — that the last he saw of them they were lying
loose in the pigeon holes ; that the affidavit is a step
towards naturalization ; that there were not more than
twenty of these affidavits; that a few of them were
sworn to before him — as a notary public, I fancy — that
the intention was to get them (the aliens) qualified to vote ;
that the oaths taken before him were taken at the " head
quarters ;" that he cannot say how many such blank affi-
davits he got or were printed off.

The account for printing produced at the trial, contains
an item, 300 forms " alien." The sum or footing of this
account is $310.50. This sum appears as the first item in
the detailed statement of election expenses, under the
words " The Spectator Printing Co. for printing and adver-
tizing." The amount of this detailed statement being
$970.36, has, as I understand, been paid according to the
items or charges contained in it. These payments were
made, as I understand, by the proper officers in that behalf
of the association. This item for the printing of these
300 blank forms of affidavits for aliens, a small one, only
$4..50, it then appears, was paid by the association, as an
item of election expenses.

Further on, Mr. Fitzgerald says : The instructions for
canvassing aliens, may be in the box. (This was a box
spoken of, but not then in court.) He afterwards says
that he does not know that there was anything in the in-
structions with reference to aliens. This box was after-
wards produced and contained nothing of consequence.
He says the blank affidavits for the aliens were at head
quarters ; and that he does not know of any one working
at these excepting William Goering, and repeats that the
form was, he thinks, drafted in his own office.

PHii

HAMILTON.

50.>

Mr. Fitzgerald was at the time of the election the socre-
tary of the association, and had been such secretary* for
about fifteen months prior thereto. He says that after the
affidavits ha<l been sworn to by the aliens, no furtlier step
was taken towards naturalization so far as he knew.

Two hundred and thirty-five blank aftidavits were pro-
duced, showinrj that this number of the 300 that had been
printed, had not been used. One of these was filed and
marked as Exhibit J. Those that had been filled up and
used, were not produced. In most of the instances appear-
ing in the evidence, if not in all, the affidavit after being
sworn was not kept by the deponent, but by the person
who was the actor in preparing it and having it sworn.
Some were left at the headquarters, where they had been
sworn to.

No charge was made for preparing the affidavits for
these aliens. Fitzgerald says the printing of the affidavits
was paid for by the association. He could not give any of
the names of the persons sworn before himself. He says
he swore eight or ten, and left the oaths in the custody of
William Goering, he thinks, at the association rooms.

William Goering says he was a voter and voted at the
election ; that he was paid $75 for services lendt-red in the
election ; that he had charge of the conimittee-roonis and
looked after the returns of the canvassers ; that the can-
vassers made their returns to him, though ho did not
receive their books from them ; that the books were giveu
to them by Fitzgerald ; that the vice-president of each
ward, handed in the books, which were for the time being
put into a box, but they were not kept. He says that
some, and perhaps all the books, were eventually kept by
the canvassers, and that he does not know where they are.
Me says the canvassers " returned " to tlie vice-presidents
and they " returned " to him.

He says that some of the aliens for whom he prepared

affidavits weie upon the voters' list. He says he did some

canvassing among the German people, that if any of them

M'anted to be naturalized, he would make out the papers for

65— VOL. I. E.G.

50G

PROVINCIAL ELECTION.

i'! i

i jf .,4

it;';

them ; tlmt lie naturally thought that what they waJit»Ml
to make the affidavit for was so as to be able to vote ; and
that if he thought any one of them was intending to vot<;
the " opposite way " he would endeavour to win him over.
He says that he "naturalized" Hackbush and Beckman,
and perhaps others whoso names appeared upon tlio list
of names read to him ; that he thought Mr. H., a barrister,
went with him to get a certain paper (produced) which
counsel was pleased to call an " invoice of aliens." Mr.
Goering further says that he heard there were .some Ger-
mans at the mills who desired to be naturalized, and }i«
went to see them ; that many of them were very anxious ;
that there were not so many as twenty of them, and that In;
foujrJ that some of these had been naturalized the previous
year. He also says that he had had some experience in
preparing naturalization papers, for he had drawn sucli
papeis more or less for ten or twelve years. He says he
went with one Mr.B.to see some people who he heard wanted
to be naturalized, and that when any took the oath he
took away the |)apers. He says he undei-stood that the
swearing to the affidavit had the effect of naturalization,
and that he did not learn the contrary- of this till after the
election ; that he thought this was all that was necessary
to entitle the persons to vote, and that he did not read the
endorsements on the papers — the affidavits — (one would
think this rather strange ignorance after the experience
this witness says he had had).

Mr. Fitzgerald, on his cross-examination said, that the
duties of William Goering were clerical only, but we have
the testimonj' of Mr. Goering himself, as to what or as to
many things he did, and there can, I think, be no reason-
able doubt that his acts of canvassing, etc., were adopted
and accepted, and I think there should be no hesitancy in
saying that he was an agent by whose conduct the respon-
dent was bound, or might be affected.

Mr. Fitzgerald says that Thomas Loney was on the
committee and belonged to polling division number nine.
The detailed statement of election expenses shows that he

HAMILTON.

607

ifl!

was paid $45 as wages for five weeks as caretaker of the
headquarters of the association. He voted.

Mr. Fitzgerald also says that William K. Foster was at
headquarters ; that he worked in preparing canvassing
books ; that since the election the association paid him
$25 J that he was not promised anything for his work.
He says that this sura was advanced by Mr. Evans, and
afterwards brought before the association. It was, how-
ever, subsequently shewn, I think, that this matter has
not yet been brought before the association : the witness
expressing the opinion that when it is brought before the
association it will be ratified and adopted. Foster also
voted,

1. John Hack bush says he has been eight years in this
country ; that he was born in Germany ; that he never had
a certificate of naturalization ; that his parents were Ger-
man ; that he knew Goering and Fitzgerald ; that he saw
Fitzgerald at the conservative hall ; that he went there to
see if his name was on the list ; that this was about two
weeks before the election ; that some of his friends had told
him that he had a right to vote ; that he asked Goering for
his naturalization papers ; that Goering drew up a paper and
he signed it ; that he signed but one paper ; that he told
Goering where he was born, how old he was, and where
he was living ; that he swore to the paper before Mr.
Fitzgerald ; that Fitzgerald kept the paper ; that nothing
more was said then about the election ; that Goering told
him to call for the paper ; that he called in about a week
or so after ; that Goering then said the papers were not
done and had to go through the Court ; that he did not go
again before the election day ; that he got cards, but no one
asked him to vote ; that he thought he had a right to vote ;
that his friends told him so, though he says in a general
way, " They told me I could not vote without a certificate."
He says that Goering said he would send him the papers
before election day ; that he really wanted to become natu-
ralized ; that he had voted at a previous election, and that
he was not sworn when he voted at this election.

i[ vl

ilfed

508

PROVINCIAL ELKCTION.

iM-r

?!»

'M^'i

I ;•

2. Jacob Brownstein says ho was born in Roumania;
that hia parents wero born thoro ; that he voted at the
election ; that he had no certificate of naturalization ; that
he took an affidavit about four days before the election ;
that he was at headquarters ; that nobody took him there ;
that Fitzgerald was not there ; that he told Ooering that
he wanted him to make out his papers ; that Mr. Gibson,
after having asked him several questions, said he had an
good a riglit to vote as any one, and asked him to vote for
him ; that ho was at headquarters only the one time ; that
Goering drew the papers for him ; that ho had been six
years in the country, and ho wanted his papers ; that
he told Goering nothing but that he wanted his papei's ;
that he did not pay anything for having the papers
made out, and that Goering told him he would get his
papers some time.

3. Herman PrelHps says that he worked in the rollitjg
mills ; that ho had been eight yeai's in Canada ; that he
was born in Germany ; that ho voted ; that he had not
obtained his naturalization papers ; that he made an affida-
vit in the office at the rolling mills ; that Goering was there
and another man who was lame ; that he and Goering
brought the papers for him to swear; that he had not sent
for them, nor did he know they were coming; that Goering
wrote the affidavit, and asked him to swear to it; that
Goering asked, and he told him where he was born, and
how long ho had been in this country ; that the reason for
making the affidavit was so that he could vote ; that " all
around " were talking about voting ; that ho had seen his
name on the voters' list; that nothing was said about voting
when he made the affidavit ; that John Feasor's affidavit
was taken at the same time ; that both Gibson and Stinson
had asked him about voting, and he had told each that he
would vote for him ; that he paid nothing for drawing the
paper, and that he once asked Goering for it, but this was
after he had voted.

4. William Lenz savs he voted ; that he and his parents
were born in Germany ; that he came to America two years

IIAMII/roN.

509

imania ;

at the
n; that
lection ;
a there ;
ing that
Gibson,

had as
vote for
le ; tliat
)een six
rs ; tliat
i papers ;
d papers

ijet liis

e rolling

that he

had not

in affida-

vras there

Goering

not sent

i Goering

it; that
>orn, and
3ason for
hat " all

seen his
ut voting

affidavit
Stinson

I that he
,wing the

this was

s parents
(WO years

ago ; that he has not his papers of citizenship ; that he
swore to an affidavit for tli(« papers ; tliat ho did this in
Hamilton the name day that he voted ; that some one made
out the paper; that he docs not know who; that he does
not know Goering ; that he does not know who asked him ;
that he works at tlie rolling mills ; that ho made the affi-
davit at the rolling mills ; that fonr men came there ; tliat
he did not know any of them ; that lie does not know
Prellips ; that his brother, who has since gone to Germany,
swore at the same time ; that some body asked him to vote
but he does not know who ; that he cannot sny whether
the same men asked him to vote who made out the affida-
vits ; that he was not one of the four who came ; that the
four only came once, and that they took him away as soon
as he had signed the paper ; he did not know the reason ;
that they took him to vote ; that only one of the men wlio
took him away could speak German ; that the num who
<lrew the paper could speak German ; that he told him how
long he had been in Canada ; that he does not know what
became of the paper, but he did not get it.

5. William Beckman says that he voted, that he was
born in Germanj' of German parents ; that he was nine
years in Canada ; that he had no certificate of naturaliza*
tion ; that Goering told him he would send his papers to
him but he has not got them ; that Goering was at the
mill and took down the names of all the Germans ; that
this was a couple of days before the election ; that
Goering told him that the gentleman who was with him
was « lawyer ; that they put down his name and asked
him to swear and he swore ; that they asked him to vote
for Stinson, that Goering asked him to do this. He .says
that Feasor, his brother John Beckman, and Prellips were
there and swore also ; that Goering put his paper into his
pocket and he has not seen it since ; that he did not pay
anything for drawing the papers ; that he did not know
Goering was coming before he came ; that nobody had
asked him for his vote before *h«>t day. He says he told
"Goering the same as he was telling in Court, that is as to

510

PROVINCIAL ELECTION.

111,

1 :

his place of birth etc., and the time he had been in this.
country.

In cross-examination he says he did not see any-
body sign that day but himself ; that the others told him
they had signed ; that nobody was present when he signed
but Goering and the lawyer, and that he did not know
either one candidate or the other. He says that a cab
came for h im to vote ; that Rudolph Eissman came with
the cab.

6. William Feasor says he is a German ; that his parents
are German ; that he has been over ten years in Canada ;
that seven or eight days before the polling day he swore
to an affidavit ; that he voted ; that a man at th<^ rolling
mills got him to swear ; that this man was Goering ; that
another man was with him ; that one of the two gave him
the books ; that Goering asked him if he had a vote and
he said " yes," but that he did not ask him to vote for
Stinson ; that Goering said he would send the paper back
in fourteen days ; that no one had asked him to vote
before Goering came, nor on polling days ; that it was a
young man who came for him and took him and Prellips
in a buggy ; that no one asked him for his vote ; that lie
did not know who Goering was working for ; that Mr.
Gibson was one day at the mill and asked every man to
vote for him ; that afterwards Mi\ Stinson came and asked
every man to vote for him ; that he promised both ; that
Goering was there before Stinson ; but he does not know
whether before or after Gibson, and that Prellips and he
were together at the swearing.

Such is the evidence of these six men, respectively. I
think it appears by the evidence in support of this charge
that there was a plan, design, or scheme to induce or pro-
cure aliens to poll their votes at this election for the
respondent. The procuring of the blank affidavits and
forms, the 28th or 30th of May, it being the fact that
there was to be in the regular order of things no court at
which the completion of naturalization could take place
then before the day of the polling ; this being known to

« -I

HAMILTON.

511

the actors, the use that was made of some, a large numlier
of such forms, and what was done in respect to the mat-
ter as appearing by the evidence already referred to, leave
I think, no room for a reasonable doubt as to the existence
of such a scheme or design ; yet, I find difficulty in say-
ing thai it is proved that any were parties to it or impli-
cated in it but Fitzgerald and Goering. It is true that
the organization paid for the printing of the forms the
$4.50, a small item embodied in a large account, as before
stated. This may be consistent with entire innocence, and
1 do not think that standing alone, it is sufficient to show
that the organization was a party to this scherie or design.
In considering this, I have not left out of mind the fact
that Fitzgerald was the secretary of the organization. An
officer or servant of an organization may, I take it, bo
guilty of a wrong which will not affect the organizatiou
unless the organization, with knowledge, adopt the act in
some way, or seek to have the benefit of it ; and here I
think the evidence falls short of what is required in this
respect.

I think it is shown that in pursuance of this scheme or
design, Fitzgerald and Goering prepared, or caused to bo
prepared and sworn by aliens a large number of affidavits
of allegiance and residence, from time to time, durinjx tlui
latter part of May and up to the 5th day ot June, 1890.

I also think it is shown that Fitzgerald and Goering led
aliens to believe that by taking such oath of allegiance
and residence, they would be entitled to vote ; and that in
tloing this, Fitz<verald and Goering made use of these
affidavits in the form in which they were ; and that by
these means aliens were by the said Fitzgerald and Goe-
ring induced and procured to vote at the election, and
that in doing this, Fitzgerald and Goering had kuowledse
of the facts. They are presumed to have known the law.

The .section of the English Act, corresponding, or cor-
responding in part with section IGOof our Act, is the first
sub-section of section 9 of the " Corrupt and Illegal Prac-
tices Prevention Act," as it is sometimes called, 4G & 47

» f

512

PROVINCIAL ele(;tion.

4 i-

i'i <

n;':

I i'

p t

Vict. ch. 51 (1883), which is : " If any person votes or in-
duces or procures any person to vote at any election^
knowing that he or such person is prohibited, wliether bv
this or any other Act from voting at such election, he shall
be guilty of an illegal practice."

At the trial there was some little discussion as to a
tlifference there mi^ht be as to not being entitled at com-
mon law to vote, and being prohibited by statute fron)
voting. This, I think, not of importance, because I think
aliens are, by our statute, prohibited from voting. See
section 7 of the Act, and section three of the Act known
as " The Manhood Suffrage Act."

In Mattinson and Macaskie's work on "Corrupt Practices"
at Elections, 2nd ed. p. 82, referring to the section of the
English Act above set forth, the authors say : " The know-
ledge referred to must be, not a knowledge of the statu t<^
which creates the disability, because every person is sup-
posed to know the law, but a knowledge of the fads in
relation to the person's status or past conduct which bring
him within the statute." This, so far as I am able to per-
ceive, is a correct view. In the c&se,Tke County of Norfolk
(Northern Division), 21 L. T. N. S. 20+, Lord Blackburn
seems to have assumed without proof that the agents were
aware of the statute theie under consideration.

Our section 160 continues, however, " and shall be liable
to a penalty of $100." This is not in the section of the
English A-ct. It might be contended that for this reason
the section in our Act is penal and should receive a strict
and literal construction, not only in the point of defining
and " setting down " the offence but also in prescribing the
punishment, and that no man incurs a penalty unless the
act which subjects him to it is clearly within the spirit
and the letter of the statute imposing such penalty, and
that, therefore, the knowledge meant in our section 1(50
■comprehends knowledge in point of fact of the existence
of the statutes and the law, and the meaning of the samo.

Even if it be assumed that this contention would prevail
in an action or other proceeding to recover or enforce tlni

tes ov in-

election^

lether by

I, he shall

m as to a
!fl at coni-
tute from
se I think
ting. See
Let known

; Practices"
,ion of the
The know-
t,he statu t<i
son is sup-
he facts in
vrhich brin<4
p,ble to per-
' of Norfolk
Blackburn
agents were

all be liable

tion of the
this reason

eive a strict
of defining

iscribing the
unless the

in the spirit
)enalty, and
section HU>
le existence
of the siisnt'.
ould prevail
enfojce the

HAMILTON.

513

penalty — ns to which I need not oti'nv any opinion — yet I
think it cannot prevail here, A penal statute may also be
a remedial law, and a statute may be penal in one part
and remedial in another part : Potter's Dwarris, 75 ;
Wynne v. Middleton, 1 Wilson 12.5.

Tiie same or a similar idea seems to have been in *,he mind
of one of the learned judges of the Court of Appeal in the
case Huntington v. Attrill, 18 A. R. 136, the judgment in
which has been so recently delivered where Mr. Justice
Osier says : " If we speak merely of the ordinary distinction
between laws as being pe/ia? or remedial the act in qiiestion
in its effect upon the defendant may be regarded in that
sense as a penal law, but from the creditors' point of view it
is remedial, intended to give them a civil remedy for the
recovery of their debts," thus disclosing the view that the
same statute ma}'^ be regarded as penal or remedial ; this
depending, sometimes at least, upon what is sought to be
enforced or done under its provisions.

I think this section IGO is both remedial and penal, that
it has a remedial part and a penal part.

The restraining or strict construction of the general words
of a penal statute are for the benefit of him against whom
the penalty is inflicted : Potter's Dwairis, 245. In enforcing
the penalty imposed by this section the person against
whom it is inflicted is the only one who has concern. In
ascertaining whether or not a person has induced or procu-
red another person to vote, knowing that such other person
had no right to vote, or whether or not a person has voted
knowing that he himself had no right to vote for the purpose
of discovering whether or not a " corrupt practice " has been
committed, which, if done bv the candidate or his autho-
rized agent would avoid the election, the whole constituency
at least has concern and is interested, for the matter reaches
objectively to the purity of Parliament. In rnakirig or
seeking to make this discovery oidy the remedial part of
this section is, I think, invoked. The section in this view,

actices," and

Illy

ipt prj

•should receive, I think, an onlinaiy and not any strict or
60 — VOL. 1. K.C.

■!'.

'■ :
i'1

;

I'!

;i4

PROVINCIAL ELECTION.

111 i

lit'?

restrained construction. For these reasons, and being of
the opinion that it is right, I have adopted the view Ite-
fore referred to stated in Mattinson and Macaskie's work,
according to which the requirements of the word "know-
ing " employed in the section are satisfied by the legally
presumed knowledge.

There is, moreover, the direct and positive evidence of
Hackbush, a witness whose testimony seemed worthv of
entire credence, that Goering told him his papers were not
done, thai, they would have to go through the Court and
that he would send Hackbush his papers before election
da}', indicating, as I think, that Goering knew what the
law was on the immediate subject.

There were in the office where Goering was working
certain election papers in which was the information both
in regard to the subject of aliens not having the right to
vote and also as to the prohibition or disqualification
under the provisions of section 5 of the Act, see particularly
" Hints and Instructions to Canvassei's," Exhibit C. (a)
And although Goering now saj-s that he had not at the time
such actual knowledge I cannot but be of the opinion that
a jury might i-easonabh^ find upon the evidence that
Goering did possess such actual knowledge at the time of
his inducing or procuring Beckman to vote.

The respondent's election agent, Fitzgerald, and Goering
were woiking in the same rooms and were I think opera-
ting in conjunction pursuant to their scheme or plan in
regard to what was called the " alien vote," Goering being
(as far as appears) under Fitzgerald.

Take the case of William Beckman. A couple of days.

(a) Those portions of exliibit C wliich are material are
" Hints and Instructions to Canvassers."

1. Who are entitled to vote.

»«♦•♦»»»

2. A subject of Her Majesty by birth or naturalization.

3 No one is entitled to vote who has received anything or who has
lieen promised anything directly or indirectly, either to induce him to
vote or refrain from voting, or for loss of time, travelling expenses, hire
of team, or any other .service connected therewith.

HAMILTON.

515

before the polling day Goering went to him at the mill
having with him another man who he took the trovible of
telling Beckman was a lawyer. They took down the
names of all the Germans there. They took Beckn^an's
name and asked him to swear, which he did, and for this
pui*pose there can be no doubt that one of those blank
forms was used. Goering promised to send Beckman the
papers, but Beckman did not get them.

It is plain that some of these people, aliens, imbibed and
had the idea that although some further papers were neces-
sary to complete naturalization, yet that when one took the
oath of allegiance and residence he became entitled to vftte.
On this occasion when Beckman had taken the oath at the
solicitation of Goering and his lawyer fiiend, Goering askod
him to vote for Stinson. This was, I think, the equivalent
of saying, "Now you have taken the oath and in consequence
of this you have a vote and I ask you to vote for Stinson."
I think this was a procuring or an inducing of Beckinai\
to vote, for Beckman was afterwards sent for and did vote :
and I think the obtpining and use of these blank forms
was a substantial part of the scheme and design by which
this WMs brought about. I think it is proved that Goering
induced or procured Beckman to vote at the election
knowing that Beckman had no right to vote at the elec-
tion within the meaning of section IGO of the Election
Act. This specific charge does not however appear
amongst the allegations of the charge in question.

In respect to Beckman I am of the opinion that this,
charge 113 is substantially and clearly proved, the scheme
or design being confined to Fitzgeiald and Goering, both
of whom were agents for the respondent.

As to the other five, the evidence does not clearly .show
the inducing or procuring ; but what does appear tends, I
think, strongly to support the assertions of the petitioner
as to the existence and purpose of the scheme or design.

The one case is, I think, clearly made out in all respects :
for an inducing or procuring a man to vote may, according
to the definitions and meanings of these words, be no more

't, 'i

516

PROVINCIAL ELECTION.

than soliciting a man to vote in a case where the man does
actually vote.

The next following two charges in the statement are
numbers 163* and 180*. I do not think either of these
proved, and I am of the opinion that they and each of them
should be dismissed.

At or near the close of the trial an application was made
on behalf of the petitioner for leave to amend his particu-
lars. This was pursuant to notice thereof given on the
8th day of December. The amendment asked was, that if
upon the trial it should appear from an examination of the
respondent, or members of the management, or finance
committee of the Hamilton Conservative Association, or
upon the evidence of Francis Fitzgerald and the other
persons named in charge 8 of the particulars served on
the 25th of November, that the persons named in said
•charge 8 as having received money, etc., received the
said monej's not for the purposes and with the intent
mentioned in the said charge number 8 ; but received
moneys, or expected to receive moneys from the respondent,
or from the management or finance committee, or other
persons, officers of the Hamilton Conservative Association,
as remuneration for the services or loss of time of the said —
then follow a large number of names, amongst which
are the names, Thomas Loney, William Goering and
Thomas K. Foster — then and in that event the petitioner
would apply to strike out said charge (number 8) from
the particulais, and to substitute a charge under para-
graphs 11 and 13 of the petition, .stating that the
respondent Francis Fitzgerald, his election agent, Robert
Evans, acting treasurer, and the members of the Hamilton
'Conservative Association who were agents for the respon-
dent between the first day of May and the fifth day of

June, 1890, promised or paid to . — then follows the

same large number of names, amongst which are the same
Thomas Loney, William Goering and Thomas K. Foster—

' Furnishing beer, — Rep.

^ Giving drivers of conveyances money to treat voters. — Rep.

HAMILTON.

517

all of whom were active canvassers and agents for the
respondent — large sums of money as remuneration for
their respective services and loss of time as agents or can-
vassers for the respondent, for the purpose of forwarding
the respondent's election; and that they, the persons
therein above named — including the said Loney, Goering,
and Foster, were guilty of the corrupt practice of voting
for the respondent, knowing that they had no right to vote
at the said election, by reason of receiving money from
the respondent and his agents, or expecting to receive
money from them, or some of them, as remuneration for
their respective services in forwarding the said election.

Charge 8, for which this is sought to be substituted,
was under paragraph 3 of the petition, and is, that the
respondent, either personally or by the management or
finance committee of the Hamilton Conservative Associa-
tion, who were agents, etc., gave and pi-ovided these per-
sons with large sums of money, with the knowledge and
intention that they should and would apply the said money
for the purpose of corruptly influencing voters in Hamil-
ton to vote for the respondent, and to induce them to pro-
cure the return of the respondent ; and that these persons
did use tlie said moneys for the said purposes. And that
the respondent and the said committee paid, or cau.sed to
be paid to the said })ersons large sums of money in repa^'-
ment of moneys expended by them in bribery and treating
at said election.

Of this eighth charge now sought to be substituted by
another charge, there was confessedly no proof.

Thomas Loney was paid for five weeks .services the sum
of $45. William Goering, who was a clerk, was paid ^75
for services. The.se are admitted ; and it is also admitted
that both Loney and Goering voted. Thomas K. Foster
was workini; on the understanding that he was to get
nothincj for his services ; but afterwards on the :iSth of
June, he got from Mr. Evans, the acting treasurer, §25,
giving E\ ans his due bill for it, and Evans was to lay the
matter before the association for its ap|)roval, which he has
not yet done. Foster also voted.

!. II

518

PllOVINCIAL ELECTION.

The contention under this amendment, if allowed, will
be that these three persons were, under the provisions of
section 5 of the Act, not eu titled to vote ; that they
nevertheless voted knowing they had no right to vote in
violation of section 160 of the Act ; that by this section,
and also by sub-section 6 of section 2 of the Contro-
verted Elections' Act, this is declared a corrupt practice ;
and that these persons were agents of the respondent.

The 13th paragraph of the petition charges corrupt
practices. The |)roposed amendment is really particulars
of alleged corrupt practices, and would naturally be par-
ticulars under the 13th paragraph, so that the proposed
amendment can take place without any amendment of the
petition. In this respect the case is materially different
from the West Simcoe Case, 1 E. C. 128, in which the
amendment was refused.

As all the evidence had been given before the motion
was made and the amendment is only asked, if the charges
are sustained by the evidence, the allowance of it cannot
inconvenience the respondent in respect of his evidence,
esjiecially as he had notice of the application before the
trial. If the evidence sustains the charges or any of them
the amendment should be allowed, or allowed as to the
charges that are sustained.

As to William Goering 1 have already said, that in my
opinion he was an agent of the respondent. Thomas Loney,
as shown by the evidence of Fitzgerald, was a committee-
man for the promotion of the election, and was therefore,
if for no further or other reason, an agent of the respondent.
Both of them were paid for services and were I think dis-
qualified from voting by the provisions of section 5 of
the Act. They nevertheless voted. They knew all the
facts and whether they actually knew the law or not they
must for present purposes be presumed to have known it.

Each of these, then, voted at the election knowing that
he had no right to vote thereat, which was a corrupt prac-
tice within the meaning of section 160 of the Act. And
as I have said each of these pereons was an agent of the
respondent.

HAMILTON.

519

•wed, will
visions of
ihat they
to vote in
is section,
le Contro-
, practice ;
ident.
)s corrupt
)articulars
ily be par-
j proposed
jent of the
y different
which the

)he motion
the charges
)f it cannot
i evidence,
before the
ny of them
I as to the

that in my
mas Loney,
committee-

therefore,
respondent.
; think dis-
lection 5 of
lew all the
or not they
3 known it.
lowing that
)rrupt prac-

Act. And
,gent of the

It was contended that tlie act of voting, being the
exercise of a man's franchise and entirely personal to him-
self could not be an act done under or in pursuance of an
agency, and that foi" this reason the respondent could not
have been nor is he affected by these acts of voting even if
they were corrupt practices. To this contention I cannot
give assent. These men had not at the time they voted
the franchise spoken of. They had been or became de-
prived of it by the facts and the provisions of section 5.
They were simply guilty of the " corrupt practice " of
voting when they knew they had no right to vote, and
wei'e agents of the respondent for the promotion of his
election. It may be added that the corrupt practices of
which they were guilty were themselves acts in the further-
ance and promotion of the election and return of the re-
spondent, who was by reason of their agency responsible
for the corrupt acts of each of them. As to these two, the
pi'oposed amendment should be allowed, .as the evidence
referi'ed to in the notice of motion for it, in my opinion
fully proves the charge made by it.

As to Foster, I think the evidence falls short of proof,
one can scarcely say that there is more than suspicion
that he was working in expectation of being paid ; as to
him I do not think the proposed amendment should be
allowed.

The result seems to be that corrupt practices by agents
of the respondent have been established under the allega-
tions contained in charge number 113, and that corrupt
practices by Goering and Loney, agents of the respondent,
have been established under the allegations contained in
the amendment allowed, now cliarge 181 ; such corrupt
practices being, however, without the knowledge or con-
sent of the respondent.

As a consequence of this the election must be held to
be void for corrupt practices by agents of the respondent,
without his knowledge or consent, unless the case can be
shewn to fall under the provisions of section 163, and as to
this my recollection is that counsel were to be heard if
they or either of them so desired.

!ii

520

PROVINCIAL ELECTION.

m "

As to section 163. These "corrupt practices" kavin<'
been shown to have been committed by the respon-
dent's agents, thougli without his knowledge and con-
sent, the direct efl'cct of which is to avoid the election,
it is now to be considered wliother the case is one in
which the trouble and expense of a new election
would be unnecessary and useless, and, as said by Mr.
Justice Patterson iik tlie East Simcoe Case, 1 E. C. at
p. 339, " the criterion is, if the corrupt acts committed hy
the agent were of ' such trifling nature ' or were of ' such
trifling extent' that the result cannot have been affected,
or be reasonably supposed to have been affected by such
acts * * either alone or in connection with other
illegal practices at the election."

The acts of Goering and Loney in voting under the
circumstances before pointed out may, I think, be con-
sidered as comparatively isolated acts to which one could
not reasonably attribute any very great consequences or
evils beyond the acts thoinst'lves. These acts may have
affeetod more than their own number of votes, possibly
they did so, but so iar as I am able to see there is not
good reason for thinking, that any large number of votes
was affected by them, and they do not seem to have been
a part or parcel of any comprehensive scheme or design or
method of procedure in the conduct of the election on the
part of the respondent through his agents.

If these two acts stood quite alone I should at least
hesitate before sa3'ing the case was not one falling under
the provisions of section 103 in which tlic election should
not be avoided. As however these acts do not stand aloue
it is not necessary to pursue this further or with greater
l)articularity.

The other " corrupt practice " proved, namely, the in-
ducing or procuring Beckman to vote under the circum-
stances before at least in part stated, must, I think, be
regarded in an entirely different light.

There was presumably a large number of aliens in the
constituency who were not entitled to vote at this election.

HAMILTON.

521

Tho number of those cloi.vs not appear even approximately l>y
the evicience. It was, however, in the prosecution of the
Hclieme or plan before mentioned, considered necessary to
procure .'iOO blank forms of naturalization papers, and
Fitzgerald tells us that the object was to seek to have
aliens (pialified to vote at the election, to the end, of course,
that their votes should be polled or cast in favour of the
respondent. Many of the affidavits of allegiance and
residence were sworn before Fitzgerald himself, in the
central committee-rooms, and as he says on each occasion
of his administering the oath he thinks he handed tho
paper to Goering. The form of these blank papers had
been prepared iti Fitzgerald's office, he being, as I under-
stand, a practising lawyer in the city — the constituency.

It is not shewn that Goering had sole charore of canvassin^r
amongst the aliens on behalf of the respondent, in the man-
ipulating or carrying out of the scheme or design before
mentioned, but it does, I think, appear that he was exceed-
ingly active in canvassing amongst these people, and pro-
curing thenj to take the oaths of allegiance and residence,
sometimes bringing, or at least, having other persons with
him. On one occasion he took the trouble, for some pur-
pose, to inform some of these aliens who were present, that
the person with hi?n was a lawyer. It appears that while
at the rolling mills where a number, I ap[)rehend a large
number, of these aliens were working, he took or endea-
voured to take the names of all of them, and had the oaths,
administered to some of them there.

Goering appears to have been an active man work-
ing in the central office with the respondent's election
agent, and not at all in the position of an ordinary
individual, who having done one act designated by th&
statute as a " coriupt practice," could not reasonably be sup-
posed to have been guilty of other acts of a like character.
This act done by him was at the time surrounded by the
facts and circumstances to which I allude, and other cir-
cumstances might probably be gathered from the evidence
niaking an addition to these surroundings.
67— VOL. I. E.C.

522

PROVINCIAL EF.ECTION

il'l
3 tj:!

l^ '

Of the 300 blank forms of naturalization papors pro-
cured as aforesaid, only 235 arc produced. Lookinjj at
what is shown to have taken place in respect of many of
them, what is one to say in regard to the remaining sixty-
five ? None of them are produced, though such of them as
are shown to have been used were left or rather retained
in the custody of Goering and F'tzgerald. It is not shewn
that any accident happened to them or any of theni, or
that, as sometimes occurs, some of the blanks were, so to
speak, spoiled on being filled up for use, and all the infor-
mation there seems to be as to them is, that there was
confusion amongst old, or worthless, and perhaps oti'<r
papers immediately after the election, and some hasti-
on account of the rooms being wanted for other purposes,
from which it seems to be desired that the conclusion
should be drawn that all these sixty-five papers were lost,
whereas the other 235 blanks have been preserved and
are produced.

This nuiy have been the fate of these papers, and
in argument it was intimated that it would be rude or
perhaps worse, to allow onesself to suppose anything con-
trar)* to this. All I can say on the subject is, that without
any desire to be too particular or suspicious, it is by no
means satisfactory to me. It may, of course, be the fact.
There is )io direct evidence as to what became of these
papers ; nor, although their custody was with Goering and
Fitzgerald, and the use of them, so far as they were or may
have been used, was by, or chiefly by the same persons, arc
we told either definitely or approximately how many of
them were used.

In the East Slmcoe Case, in Appeal, 1 E. C, at p. 3 '
Mr. Justice Patterson is reported to have said : " I
we may properly test the motive of an act, whethe. or-
rupt or lawful, by concidering the circumstances uud' r
which, and the person by whom it is committed." The
learned judge then puts the illustration that he had before
put in the Welland Case, and then says : " While the ex-
tent of this corrupt act being measured by its influence on

HAMILTON.

523

the one voter, might be trifling, its nature as an overt act
of what appeared, or might be reasonably bo assumed to
be an arranged system of operations, could not properly be
HBiid to be trifling.

In the same case the late Sir Matthew Cameron said at
p. 330 : " The quality of one act boing essentially bad, the
extent of its influence is not to be measured or estimated
merely by the number of votes actually proved to have
been tainted thereby, but is to be regarded and estimated
in connection with the influence of the party proved to be
guilty of its commission, and by the opportunities he may
have had of resorting to like ])racticcs in other cases."

It is true that in the East Sivicoe Case, the act was an
act o' bribery. Mr. Justice Osier, however, says at p. 345 :
" The legislature has chosen to put it in tiie same plane in
this and other respects with other acts, which, thougli
called corrupt practices, are not mala in ae. But the Com t
in considering whether a corrupt act is trifling in its nature
or extent, cannot lose sight of the distinction, and wil' bear
in mind that bribery has always been deemed the head and
front of election offences,' etc., and further on the learned
Judge says : " I think it was not intended that any thing
like a scrutiny of bribed or corrupted votes should bo en-
tered upon or a count of corrupt practices."

I have examined all the authorities referred to upon the
argument of this branch of the case and have not fouu'l
that any of them affords me better information or bettor
rules for considering the subject than docs this East
Slmcoe Case.

I am of the opinion that the corrupt practice with
which I. am endeavouring to deal here must upon the
evidence respecting it and its surroundings be considered
and deemed to be an overt act of what appears to have
been an arranged sj'stem of operations. If it could only
be said that it might be reasonably assumed to be such au
act, tha' vvould be all that is required by the illustration or
rule twice laid down or stated by Mr. Justice Patterson,
but here the case to my mind is much stronger, for I

■!'.

524

PROVINCIAL ELECTION.

Ml.'

venture to say that few persons, if any, could have heard,
or can peruse the evidence without arriving at the con-
clusion that it is shewn that there was in fact a precon-
ceived and precoucerted plan of operations in respect to
this so-called " alien vote " and that this act was an act
done in the effort to carry out this plan, and so, is the
sort of overt act mentioned or referred to by Mr. Justice
Patterson in the passage to which I have alluded. It is
true that it was not an act of bribery, but only a thing
prohibited, so far as I can see, but as said by Mr. Justice
Osier in the same case, the legislature has chosen to put it
on the same plane as bribery in this respect; and understand-
ing what are called the facts, as I think I understand them,
and looking towards the opinions of the letaned Judges of
the Court oi Appeal who were in the majority in the East
Simcoe Case, and the judgment of the late lamented Sir
Matthew Cameron, whose judgment was there affirmed as
to the subject., or part of it that is important here, J can-
not arrive at the conclusion that this " corrupt practice"
can be considered to be of a " trifling nature." I cannot
but think that looking at it in the light of the opinions to
which I have referred, it is of a natui'e most scdous
instead of trifling.

Then as to whether or not the act was of trifling extent,
I have difficulty in perceiving just what is meant by the
expression, but I do not intend to add to what has been
said by so many judges in regard to the difficulties in con-
struing or understand ing this section.

If the meaning includes the extent of the act, and the
other acts of a class presumed (from what appears) to have
been done, then I think there is a strong presumption that
a very large number, if not all or nearly all of the sixty-
five blank papers that are not forthcoming, were made
use of in committing, or in the endeavour to commit acts
of a like kind. The burden was upon the respondent,
and he did not, I think, remove the presumption which it
appears to me fairly exists. In this view, which is the
only one I can take, the corrupt practice in question can-
not, I think, be considered as being trifling in extent.

HAMILTON.

525

, so nous

If I adopt the principle of the East Simcoe Case, which
I am bound to do, and apply It to the facts as I under-
stand them here, there can, I think, be no conclusion but the
one — namely, that the act (this " corrupt practice") taken
alone, cannot be said to be of " such trifling nature," or of
" such trifling extent," that the result cannot be reasonably
supposed to have been affected by it. This might not
appear to be so if anything like a scrutiny were intended ;
but it is said in the Simcoe Case, that neither this nor a
count of corrupt practices is intended : Mr. Justice Osier,
at p. 345. It is there said that one corrupt act may
avoid an election, and that act may have been of such a
character, or committed in such circumstances, or by such
an agent as to raise the doubt whether those who are
responsible for the management of the election were trying
to conduct it fairly, and that an act of that kind cannot be
trifling in its nature, and must be looked at apart from its
effect upon the single vote. When I look at this act or
corrupt practice, and at the plan of operation of which it
is, as I think, the ovoi t act proved, as well as the situation
of the person who committed it, and his connection in this
plan and mode of operation with the election agent of the
respondent, it appears to me that there isa doubt,if notmore>
as to whether those who were responsible for the manage-
ment of this election were trying to conduct it purely. In
saying this I wholly exonerate the respondent himself,
for so far as I know or can discover, there is nothing in
the evidence to implicate him personally in anything of
tlie sort, or to show that he did not intend and endeavour
to have a pure election.

I am of the opinion that even if nothing more were to
be considered or said, this election cannot be upheld as a
valid and good election. It may, however, be expected,
and perhaps it is quite proper, that I should say souiething
in regard to other illeg?,! practices at the election. Thete
consist, or consist chiofly of the two other corrupt practices
proved and above referred to, and certain acts said to have
been done by a person known as Colonel Collier, who became

'1:1

526

PROVINCIAL ELECTION,

1!''!' '-•.

, "'

14111

a witness to prove the committing of these iv:ts by himself.
When the testimony of this witness was the opposite of
that of the respondent, the evidence of the respondent was
preferred, and, in my opinion, very rightly. There were
too, in regard to perhaps, the most important point of
difference, circumstances favouring the testimony of the
respondent, and also the evidence of Mr. Fitzgerald looking
in the same direction.

According to the evidence of Collier he promised to pay
a large number of his own small debts if the respondent
were elected, and many of them he did pay pursuant to his
promise, as he says. According to what he says he actu-
ally bribed two persons, and paid each the amount of the
bribe. The number of these is in all about twenty, and in
a considerable number of the instances his evidence in
corroborated by the persons respectively whom he named.
He says (in effect) that he promised and paid the captain
of the Salvation Army the sum of $50 to influence the
members of the army. The money he says was promised,
if the respondent were elected, and after the election was
paid. The captain was not called to contradict what
Collier said. No reason was, I think, assigned or given
for not calling him. It was said at the trial that the cap-
tain was not a voter.

It was not shown of how many persons the Salvation
Army in the city of Hamilton consisted, or how many, if
any, of these were voters. It is not in my opinion unfair
to think that it consisted of a considerable number of per-
sons, and that some proportion of these were voters or had
the right to vote. The actual effect of this promise and
payment of $50 in respect to the number of votes, if any,
that it gained for the respondent is unknown or at least
does not at all appear by the evidence. This is left the
subject, and in the region of conjecture, that is, assuming
that Collier is, under the circumstances, to be believed
when he says he did the acts of promising and paying, or,
the act of promising only.

Collier also says that he paid the band master of a certain.

i ;i;ii

HAMILTON.

527

band in the city the sum of $20 to influence the members
of that band in favour of Stinson, the respondent. Again
it is not shown of how many persons the band consisted,
or what, if any, proportion of these were entitled to vote.
The effect of this is also left to conjecture.

Collier, according to his evidence, did betting sufficient
to win thereby the large sum that he mentions, if his
evidence is to be taken as true. The particulars of this
betting are not given so as to enable one to say whether
or not it embraced illegal practices.

I think it a proper course to receive Collier's evidence as
true, notwithstanding all that has been said of him, where
it is uncontradicted, especially in view of the fact that
there appear at least some instances in which witnesses
might have been called to contradict liim if what he said
was untrue, and were not called, although as it appears to
me there were ample time and opportunity so to do. Con-
tradiction in respect to the matter in evidence is always a
more satisfactory means of enabling one to say that he does
not believe the witness, than an effort to show general bad
character respecting matters apart from reputation as to
veracity or the absence of it.

That a very considerable number of illegal practices-
were committed by Collier, must, I think, be taken to be
proved. The extent, in fact, of that having relation to the
Salvation Army, cannot, on the evidence, be measured with
any pretence of accuracy or even an approximation to it.
The extent of that in relation to the band, which was, as
it appears, placed under the thin covering of a " toot " at
the Commercial hotel, is much in the .same position.

Collier seems to have acted in a peculiar way in not
ascertaining whether or not those whom he sought to in-
Huence, were persons entitled to vote; and if .so, what
was their political opinions or inclination, and al.so by
approaching persons who were, one would say, far above
being swayed or influenced by him or any money he had
to give. Yet it appears, I think, that he was active, and,
as I have said, did many illegal acts of the extent, or pro-

528

PROVINCIAL ELECTION.

V^>

i
it

bable extent of some of which I have before spoken.
Now, if it be assumed that my conchision in regard to the
corrupt practice of which I have said so much — namely :
inducing or procuring Beckman to vote, is not the correct
one — then this, the other two corrupt practices proved,
and the other illegal practices at the elections, are to 1m;
connected or joined together, and looking at all the ques-
tion answered, can the result have been affected by them,
or, can it be reasonably supposed to have been affected by
them, it being borne in mind that a scrutiny or the like is
not intended by the section of the Act 163.

This, I have considered as well as I am capable of doing,
and all I can say is, that I find myself entirely unable to
say that I am of the opinion that the result cannot be
reasonably supposed to have been affected by them. I am
also unable to say that T am of the opinion that the result
cannot have been affected by them. I am, therefore, of the
opinion that even in this second way of viewing the mat-
ter, the election cannot be upheld.

My conclusion is, that viewing this troublesome case,
either one way or the other, or in any way that I can view
it, the election must be held to be void and so declared.

«■

MacMahon, J., concurred.

G. A. B.

HALDIMAND.

621)

HALDIMAND.*

ill

DOMINION ELECTION.

Before Sir W. J. Ritchie, C. J., Strong, Fournier,
Taschereau and Gwynne, JJ.

Thomas Walsh (Petitioner), A'ppellant.

AND

Walter H. Montague (Respondent), Respondent

ON APPEAL FROM THE JUDGMENT OF MR. JUSTICE
STREET, SITTING FOR THE TRIAL OF THE HALDI-
MAND CONTROVERTED ELECTION.

SrrtUiiiee7', ayency of — Wilful induc'vxj a voter to take fulse oath — Corrupt
practice— Qmdijlaif ion of voters — Former's sons —Oath T — Sec.i. 9(i
and 91 ami sees. 4I o.iid, 45 of ch. 8 R. S. C. — Ballot papern rejected —
Finding of trial Judge,

A scrutineer appointed for a polling place at an election under the writt<in
authority of a candidate is an agent for whose illegal acts at the polling
place the candidate will be answemble.

Tlie insisting by such scrutineer of the taking of the farmer's son's oath
T by a hesitating voter whose vote is objected to and who is registered
on the list as a farmer's son and not as owner, when, as a matter of
fact, the voter's father had died previous to the final revision of the list
leaving the son owner of the property, is a wilful inducing or endeavour-
ing to induce the voter to take a false oath so as to amount to a corrupt
practice within sections 00 and 01 of cli. 8 IJ. S. C, and such corrupt
practice will avoid the election under sec. 93. Stron(! and Gwynne,
JJ. , dissenting.

/•cc SxRONti, J. — 1. That reading section 41 in conjunction with see. 4r»
sub-sec. 2, and the oath T in schedule A of ch. 8 R. S. C. an enquiry on
a scrutiny as to the qualification of a ftirnier's son at the time 01 voting
is admissible, and if it is shown that a larger number of unqualified

* Reprinted from the Supreme Court Reports.

68 — vol, I. e.c.

ft"'

1 '.

\ 3

"i-

530

DOMINION ELECTION.

farmer's sons' votes than the majority were admitted the election will

be void. ('I'asohereau, J., contra).
*2. Secrecy of the ballot is an absolute rule of public policy and it cannot

be waived. Sec. 71 ch. 9 R. S. C.
On this appeal certain ballot pap'^rs being objected to : —
//p/t/, that it will require a clear case to reverse the decision of the trial

judge who has found as a question of fact whether there was or was-

not evidence that the slight pencil marks or dots objected to had l)eei»

made designedly by the voter.
Also, that where the x is not unmistakably above or below the line

separating the names of the candidates the ballot is bad.

Appeal from the judgment of the Honourable Mr. Justice
Street delivered at Cayuga upon the trial of the con-
troverted election of Haldimand for the House of Commons,
whereby the election petition was dismissed with costs.

The election in question was held on the oth and 12th
days of November, 1887, when the respondent, Walter
Humphreys Montague and Charles Vvesl.^y Coulter were
candidates, and the said Walter Humphreys Montague
wns declared by the returning officer to have a majority of
the votes cast at the said election.

The petition contained, in addition to the usual charges
of bribery and corruption, many specific charges with
reference to the reception, counting and rejection of ballots^
and other charges of irregularity and unlawful practice*
in connection with the election which by the said petition
it was sought to have declared void.

The trial began on Tuesday the 24th January, 1888,
and by the direction of the presiding Judge the charges
of corrupt practices against the respondent and his agents
weie first disposed of, and afterwards certain evidence
was taken as to charges in the petition of irregularities in
the conduct of the said election.

On the fourth day of the trial, Friday the 27th of
January, the learned judge proceeded to examine the
ballots cast at the said election, and as the result of such
counting of the ballots he declared a majority of ten votes
to have been cast in favour of the respondent.

On the present appeal a number of ballots which on the
scrutiny had been counted either for the respondent or the
defeated candidate were objected to. These ballots were

HALDIMAND.

531

examined by the Court and two ballots which had been
allowed for the respondent by the trial judge after exami-
nation with a microscope were disallowed, the Court holding
that unless the X is unmistakably above or below the line
separating the names of two candidates so marked the
ballot is bad.

The findings of the trial judge on the other objected
ballots were upheld, the Court holding that it would require
a clear case to reverse the decision of the trial judge who
had found as a question of fact as to whether there was or
was not evidence that the slight pencil marks or dots
objected to had been made designedly by the voter. No
decision was arrived at on ballots No. 103 and No. 46.

Ballot No. 103 was cast at polling sub-division No. 4, in
the township of Oneida, by one Philip S. Wintermute, and
the words " Philip S. Wintermute," were written upon the
ballot itself, before it was deposited in the ballot box.
Charles Young, the deputy returning-officer at the polling
sub-divi.sion in question, was called by the respondent at
the trial as a witness to su[)port the claim to have this
ballot counted. He stated that Wintermute voted as a
farmer's son, that his right to vote was challenged, and
that when he came back from the voting compartment and
handed his ballot to the deputy returning-officer to be
deposited in the box one of the scrutineers for Mr. Colter
suggested or urged, that a note of the objection to the vote
should be made on the ballot-paper itself, and that accord-
ingly he (the deputy returning-officer) then wrote on the
ballot-paper the words "Philip S. Wintermute," before
depositing it in the box. This ballot was allowed for the
respondent in the Court below.

Ballot 46 was a ballot not initialed by the returning-
officer and was counted for the defeated candidate by
the trial judge after evidence of its identity was given.

The appellant by his notice of appeal limited the subject
of this appeal to the following special and defined questions
and the rulings and decisions thereon of the learned judge
at the trial, viz. :

'ii

532

DOMINION ELECTION.

" 2. The refusal of the learned judge at the trial to count
as votes for Mr, Colter seven of the ballots cast at the said
election at polling sub-division No. 2 in the township of
Oneida and which, as the petitioner contends, were marked
with a second cross by the deputy returning-officer at the
said polling station after the voter had returned the same
to the officer to be deposited in the ballot box. The said
seven ballots were numbered by the county judge upon the
recounting of votes after the said election as Nos. 85, 87,
88, 89, 90, 91 and 92.

" 3. The charge (No. 8 in the particulars) that Frederick
Harrison as agent of the respondent did induce Thomas
Nixon to take a false oath at the poll and to vote at the
said election though not qualified to do so.

" 4. The charge (No. 20 in the particulars (that Stephen
Allen, an agent of the respondent, did induce Robert
Dougherty to take a false oath at polling station No. 3, in
the township of Walpole, though the said Robert Dougherty
was not qualified to vote at the said election.

" 5. Tho charge that the deputy returning-ofiicer at
polling suo-division No. 4, in the township of Oneida, put
into the ballot box and counted ballots not duly received
from the electors in the lawful performance of his duties
as deputy returning-officer at the said election.

" 6. The charge that the deputy returning-officer at
polling sub-division No. 2, in the township of Oneida,
improperly marked ballots received by him at the said
election from electors before depositing the said ballots in
the ballot box, and thereby prevented the said ballots
from being counted at the said election, and the ruling of
the learned judge at the trial, rejecting the evidence on
behalf of the petitioner, which was tendered by him at the
trial in support of the said charge.

" 7. The charge that many persons voted at the said election
who for different reasons were not qualified to vote thereat,
and the refusal of the learned judge at the trial to inquire
into the right at the time of the election of any person to
vote thereat, if the name of such person appeared on the

HALDIMAND.

533

list of voters as finally revised and certified by the revising
barrister, and the rejection by the learned judge at the
trial of the evidence tendered on behalf of the petitioner
to establish that many persons who voted at the said
election had, between the time of the final revision of the
voters* lists bv the revisins: barrister at the date of the
said election, forfeited the right to vote thereat."

The evidence relating to charges 3, 4, 5, 6 and 7, upon
which this appeal was decided, is reviewed in the judg-
ments hereinafter given.

October 3rd, 4th, and 5th, 1888. Aylcsworth {Colter
with him) for appellant.

On the Harrison -Nixon charge (Par. 3 in the notice of
appeal) the leained counsel cited and relied on The
Dominion Elections' Act, sees. 90, 91, 93 and also sec. 45,
sub-sec. 2, ch. 8 R. S. C. ; Cooper v. Slade, 6 H. L. C at p.
788; North Norfolk Case, I O'M. and H. at p. 242;
Wallingford Case, 1 O'M. & H. at p. 59 ; The Hereford
Case, 1 O'M. & H. at p. 195 ; The Lannceston. Case, 2 O'M.
& H. at J). 133 ; The Carrickfergus Case, 3 O'M. & H. at p.
91 ; The Louth Case, 3 O'M & H. 161 ; The Selkirk Case,
4 Cans. S. C. R. 494 ; The Soidanges Case, 10 Can. S. C.
R. 652 ; and Taylor on Evidence 8 Ed. sees. 376-7.

On the Allen-Dougherty charge (Par. 4 in the notice)
upon the question of agency The Stroud Case, 3 O'M. & H.
at p. 11, was referred to. On this charge they referred also
to the judgment of Chief Justice Moss in a case referred
from the county of Elgin to the Ontario Court of Appeal
under the Ontario Voters' Lists Acts — printed in the appen-
dix to Hodgins' Manual on the Law affecting Voters' Lists
in Ontario, 2ud Ed., as case No. 8 in re Norman.

The learned counsel then argued that the trial judge had
erred in refusing to allow witnesses to disclose for whom
they had voted in order to prove the truth of charge 6 in
the notice of appeal, and contended that the statute was
framed solely to leave to the voter the privilege of secrecy if
lie wished to assert and maintain it. Citing sec. 71 of the
Dominion Elections' Act and Taylor on Evidence 8th Ed.

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DOMINION ELECTION.

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sees. 396, 438 ; McCreary on Elections, 3rd Ed. sec. 453 ;
People V. Pense, 27 N. Y. 45-81 ; Reg. v. Kinglake, 11 Cox
C C. 499; Thomas v. Newton, M. & M. 48 n.; King v.
.4tZe?/, M. & Rob. 94 ; Oooley on Limitations, p. 762.

Then ns to right to enquire on a scrutiny into the
qualification of the farmer's sons at the time of voting the
learned counsel contended that sec. 41 ch. 8 R. S. C. must
be read as conferring on farmers' sons the right to vote
subject to the provisions contained in sec. 45, sub-sec. 2,
and in support of his interpretation of the statute in this
respect relied upon the judgment in The South Wentworth
Case, Hodg. 531 at pp. 533-34 ; The Stormont Case, Hodg.
21 at p. 44 ; North Victoria Case, Hodg. at p. 681 ; Cooley
on Limitations p. 762.

McCarthy, Q. C, for respondent.

As to the Harrison-Nixon charge he contended there
was no agency. Matthison and Macaskie on Corrupt
Practices, p. 106 ; and cases there cited. Harrison's
authority was limited as provided in sec. 36 ch. 8 R. S. C.
But, admitting agency, he argued that it was impossible
under the circumstances to hold : First, that Nixon took a
false oath. There was no ground on which the learned
judge could have held that any oath which Nixon was
required to take was false in fact, or if false in fact that it
was false in the sense in which it would be unlawful for
him to take it, namely, knowingly false. Secondly, there
was not a tittle of evidence on which the learned judge
could have found that Harrison either " compelled or
induced " Nixon to take the oath, or that he did so with
the belief that Nixon was not in a position to take the
oath, or that he did so corruptly within the meaning of
the Act, and he submitted that the holding and finding of
the learned judge was the only possible one under the
circumstances — citing the Kingston Case, Hodg. 625.

As to the Allen-Dougherty charge no agency was proved.
The scrutineer had not been appointed, and moreover, the
facts clearly shew that Dougherty was still a resident on
his father's property and could take the oath.

HALDIMAND.

535

The learned counsL'l then x'eferred to the irregularities
relied on and contended the defeated candidate hud
suffered no injustice.

As to charge 81. Unless a primd facie case of fraud is
alleged and pruved there is no right to enquire how ii
voter voted. On the grounds of public policy the legisla-
ture determined that a ballot could not under any circum-
stances, for the purpose of ascertaining by whom that
ballot was marked, be enquired inlo in a court of justice.
In this respect the Ballot Act under the law of Canada
iliffers from the law established in England, 'A'here under
certain circiamstances the court is at liberty to investigate
liow the ballot has been marked. Clauses 70, 71 and 72,
as indeed the whole Election Act itself, clearly indicate
that the great object which the legislature had in view
was the secrecy of the ballot, and that under no possible
circumstances could it ever be made known by any course
cl" procedure how a man had voted ; in other words that
the ballot was to be absolutely and for all time secret. In
Leigh & Le Marchant on Elections, p. 8.5 in a note ; is a
statement showing how the peculiar inconsistency to be
found in the Enolish ballot is accounted for. In the
Canadian law the policy as to the secrecy of the ballot was
maintained and the Act is consistent in itself. So that in
a scrutiny, if it be determined that an elector was bribed
by a candidate or his agent, it is provided that one vote
.should be deducted from that candidate's poll, without
any enquiry or means of enquiry as to how in fact the
bribed elector voted, and it may not be at all impossible
that the elector may have voted under the secrecy of the
ballot different from the way in which he was bribed oj"
corrupted to vote. Nevertheless as there can be no such
enquiry the law has provided as the only means of redress
that one vote shall be deducted from the candidate's poll.
Besides strictly speaking there can be no evidence as to
how a man voted other than the production of the paper
itself, nor would there be any safety 'f courts were to deal
not upon the ballot which is the vote, but upon the

536

DOMINION KLECTIOX.

ill

statement of wifcnossoH ns to how they voted. A witnu.ss
might falsely say he had voted differently from the
way in which ho had voted, without the sliglitest fear of
detection, and without it hninjj possible to establish that
hi8 evidence was wrony. The courts ought not to make
any exception. Now with regard to the English mode or
method of procedure, to show very clearly that the
principle contended for is the right one, there, no examina-
tion can be had of the ballot until it be established to the
satisfaction of the court that the peison who cast that
ballot was guilty of an off«jnce which ip^o facto destroyed
his vote. Then by reference to the numbers the ballot can
be produced, every care being taken to prevent any other
))allot being seen, and upon its being ascertained how he
voted, the poll is altered accordingly, whereas the Canadian
Parliament deliberately adopted the other rule as above
referred to. At the trial the respondent's counsel offered in
express terms to waive his objections if any evidence was
given to the trial judge upcm which he would sa}' that
a jyriind jacie case of fraud had been made out. And
if this was such a fraud there must surely be evidence of
it. It was difficult to conceive how such a fraud could
have been practised. For it must be remembered that the
voter getting his ballot has an opportunity to see that at
that time it is not marked. He folds it up leaving the
counterfoil and number exposed, which he exhibits on his
return to the polling room to the deputy returning-oflicer.
The deputy returning-officcr then removes the counterfoil
and in the presence of the voter deposits the ballot which
he has brought back to him in the box. The witness that
was examined in this case said that was all done and done
in the presence of the two scrutineers on each side and the
poll clerk, so that the offer was made by the respondent's
counsel, if a privid facie case of fraud was made out, to
withdraw the objection and allow the petitioner full and
ample enquiry. The petitioner's counsel would not avail
himself of that offer, and therefore his loidship properly
determined not to allow the examination to proceed.
The following authorities were cited :

HAI.DIMAND.

")37

The North Durham C<inp. 3 O'M. & H. 1 ; The Ifarwirh
C(m, 44 L. T. 1«7 ; The Litrhjidd Case, 3 O'M. & H. 131) ;.
The Wigtoivn Case, 2 O'M. & H. 220 ; Ro;?t'rs on Eloction,
2 vol. (15 K(l.) p. G.S7; Macartney v. Carry, 7 Iv. C. L R. 190.

Then tho learned counsel discnssod tlio .scrutiny charges
under the cit^hth class of scrutiny particulars that farmers*
son.s voted who were not entitled to vote atid contended :

First, that no scrutiny is at all allowed under tho Act ;
.secondly, that no .scrutiny could be held because the ballot
is conclusive and is the only evidence as to how a man
«lid vote ; thirdly, a man cannot bo allowed to .say how he
voted, and could not be compelled to say how he voted ;
iourthly, every person whose name is on the list is entitled
to vote.

With regard to the apparent conflict which is introduced
by the Franchise Act — by one section of the Franchise
Act and by clause 70 of ch. 8 R. S. C. — they have to be
reconciled. By the Franchise Act faimer.s' sons aie
required to have what is called a continuing qualiHcation,
differing from everybody eKse, and Parliament has evidently
for the purpose adopted the oath as tho protection. The
.same thing is done in the Local Legislature, they have
farmers' sons and owners' sons and all that class wha
require to have, just as in this case, a continuing qualifica-
tion, but under the local Act it has been held in the
Wentivorth Case, and was intimated in the recent case in
Kent with the same effect by the learned judges who were
tliere, that there could be no scrutiny upon any ground
whatsoever. The oath was the protection that the law
intended. For those reasons no enquiry can be made
under this head of objection taken in these particulars.
Stoive V. Jollife, L. R. 9 C. P. 44G.

December 14th, 1888. Sir W. J. Ritchie, C. J.— Among
the particulars of corrupt practices alleged are the fol-

lowing

8. Frederick Harrison, a resident of the township of Walpole, an agent
of the respondent, did at polling station No. 6, in the township of
69 — VOL. I. E.G.

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DOMINION ELECTION.

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Walpole, induce Thomas Nixon, a resident of the township of Walpole,
to take a false oath at the poll and to vote at said electon though not
qualified to do so.

20. Stephen Allen, a resident of the township of Walpole, an agent
of the respondent, did on the I'ith day of November, 18S7, induce RolHsrt
Dougherty to take a false oath at polling station No. li, in the township of
Walpole, though the said Robert Dougherty was not qualified to vote at
flaid election.

It is provided by 49 Vic. ch. 8, sec. 90 that
Every candidate who corruptly, by himself or by or with any other
person on liis behalf, compels or induces or eiideavours to induce any
person to perscmate any voter, or to take any falie oath in any matter
wherein an oath is required under this Act, is g lilty of a misdemeanour
and shall, in addition to any oLher punishment to wiiich he is liable fur
such offence forfeit the sum of .^200 to any person who sues for the same.

And by sec. 91 :

The offences of bribery, treating, or undue influence, or any of such
offences, as defined by this or any other Act of tlie Parliameut of Cauad ,
personation or the inducing of any person to commit peisonation, or any
wilful offence against any one of the seven sections of this Act next
preceding, are corrupt practices within the meaning of this Act.

We have then in this case to look to the seven precedin;^
i<ections, of which 90 is one, siiniily to discover Avhat wilful
offences are corrupt practices witliin the meaning of this
Act, and under section 90 the wilful offence is the compel-
Jing or inducing or endeavouring to induce any person to
take any false oath in anj'' matter wherein an oath is
required under this Act, and the inquiry is not whether
tlie candidate is guilty of a misdemeanour or not.

If it is found by the report of any court, judge, or other tribunal for
the trial of election petitions, that any corrupt practices 1j ad been committed
by a.iy candidate at an election, or by his agent, whether witlior without
the aoCiial knowledge and consent of such candidate the election *^f such
candidate if he has been electevl shall be void.

The inquiry then in this case is confined to the questiuu:
Whether there has been a wilful ofience under sec. 90, and
if so, whether it was committed by an agent of the
candidate ?

Mr. Frederick Harrison represented Dr. Montague under
a w'itten authority whereby he appointed Harrison to
act in the capacity of scrutineer for him (me) at poUing
sub-division No. 6, in the municipality of Walpole iu the
said electoral district of Haldimand.

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HALDIMAND.

539

A voter named Nixon who was on the list qualified as
a farmer's son, and qualified only in that capacity, offered
himself to vote at this polling place as a farmer's son.
William Parker, the scrutineer of the opposing candidate
insisted that this voter should be sworn and this is the
account he gives of what took place : —

William Parker, sworn — Examiiieil by Mr. Aylesworth— Q. Where
were you engaged on polling day? A. Subdivision C of Walpole. Q.
What capacity? A. As agent nt the polls. Q. For whom? A. For
AJr. Colter. Q. Were yon tliere when Mr. Nixon came to vote — the la,8t
witness ? A. Yes. Q. What took jjlacc ? A. When he came in I said
to the returning-officer I want this man sworn : Nixon said what is that
for ; he said I have voted here three or four tiuKs and you have never
said anything ; I said well 1 want you sworn ; so he turned to go out and
the poll clerk, and 1 am not sure whether otht rs said to him — Q. The
poll clerk — who do you mean V A. Ainlruw Falls : that is the name he
didn't rememljcr ; the poll clerk said don't go out ; if you do you cannot
come back again ; so ho turned and came back, and he said to me what
is your objection to my vote, Mr. Parker, you have never objected to it
before ; and I rejjlicd I don't discuss voters' 4ualilications here, and I
turned to the returning-oilicer, and sajs, I re(iuire liim sworn ; so
the returning-oihcer took the book to swear him, and I said oath
"T," and I looked over and saw the returning officer w'as reading oath
" T " to him, but still he hesitated. Q. Who did ? A. Nixon the voter;
so llari'ison, the other scrutineer, said your vote is perfectly good, Tom ;
he said take the oath, Tom, take the oatli ; I will be responsible ; so then
he took the oath and voted. Q. What oath was read to him ? A. Oath
" T," the farmer's sons' oath. Q. Did you have a copy of the oath ? A.
Yes, I had a copy of the Act. Q. How did you know it was oath "T ? "
A. I just looked over it and could sec it. Q. You followed the reading ?
A. I could see when he liegan to i-ead what he was reading and I 8ai<l
oath " T " to the returning-officer before he began. Q. And was this
part of it, " That I am resident with my father within tliis electoral
district? " A. Yes, sir, that is the last.

And Nixon the voter on his examination says in reply
to the question: What was the form of oath administered
to you ? was it as owner or owner's son or farmer's son or
which ? Answers, farmer's son.

This oath " T " is the form of oath of qualification of a
person whose name is registered as a voter on the list of
voters as being a farmer's son, not chiiming the benefit of
the provision as to occasional absence as a mariner,
fisherman or student.

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540

DOMINION ELECTIOX.

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I, (B), solely swear (or if he is one of the persons permitted by law to
artinn in civil cases, solemnly affirm) :

1. That I am the person named or purporting to be named, by the
name of , (and if there are more persons than one of the same
name on the said list, inserting also his addition or occupation) on tlic
list of voters for polHng district No. , iu the electoral district (or
municipality) of

2. That I am a British P'.ibject by birth (or naturalization, as the case
may be), and that I am of the full age of 21 years.

3. That I have not voted before at this election, either at this or at any
other polling place.

4. Tliat I have not received anything, nor has anything been promised
me directly or indirectly, either to induce me to vote at this election, or
for loss of time, travelling expenses, hire of team, or for any other service
coiniected therewith ;

5. That I have not directly or indirectly, paid or promised anything t..
any person either to induce him to vote or to refrain from voting at this
election ;

(j. 'J'hat I am a resident with my father, (or if his father is dead, with
my mother) within this electoral district, and that I have not been absent
from such residence more than wix months since I was placed on tlio list
of voters. tSo help me (lod.

And this last clause is that which it is claimed the
witness could not truthfully take and it cannot be denied
that if he did take this oath he did take a false oath in a
matter wherein an oath is required under the Act.

This statement of Mr. Parker I must accept as strictly
true, because neither the returning-officer nor Harrison,
the scrutineer of Mr. Montague, were called to show that
oath '' T " was not regularly and properly administered, or
that any portion of the oath v/as omitted, and indepen-
dent of any evidt-nce of Parker in the absence of any
evidence to the contrary it must be presumed the return-
ing-olKcer did his duty. If he did nut do so the sitting
member should have shewn it.

It is not necessary for me to discuss or decide a question
raised on the argument, viz. : whether a voter registereil
as a farmer's son has a right to choose what oath he will
take, because in this case he actually took the farmers
sons' oath, and did not choose or oft'er to take any other.
I may say, however, that if I were called on to exjjrcss an
opinion I should rocjuire much more than I have heard in

HALDIMA\D.

541

this case to convince me that a voter so registered has any
such right.

The questions then resolve themselves to these : Was
Harrison the agent of Mr. Montague at this polling place,
and if so, did he compel or induce, or endeavour to induce,
the voter Nixon to take the false oath ? There cannot be
a donht that, having been authorized to act as scrutineer
at the polling place i i question, he was there as the agent
. tlie candidate appointing him. The sections of the Act
^36, 87 and 38 make this, in my opinion, too plain for argu-
ment, they are as follows :

3(!. ,. ^ ition to the deputy returning-officer .and the poll clerk, the
.;an(liu,ites and their agents (not exceeding two in nnmlier for each
candidate in each polling station), and, in the ahsence of agents, two
electors to '■^present each candidate on the request of such electors, and
nn cthei's, shall be permitted to remain in the room where the votes are
,'iv.;.i. , uring the whole time the poll remains open ;

J ;-0'ided always, that any agent bearing a written authorization from
the candidate, shall always be entitled to represent such caudidate in
preference to, and to the exclusion of any two electors, who might other-
wise claim the right of representing buch candidate under this election.
41 Vic. ch. 6, s. 4.

HI. Any person producing to the returning-officer or deputy returning-
olficer, at any time, a written authority from the candidate to repres.jiit
him at the election or any pro needing of the election, shall be deemed an
agent of such candidate within the meaning of this Act. .37 Vic. ch. 5), <•.
:i6.

38. One of the agents of each candidate, and, in the absence of such
agent, one of the electors representing eacli candidate, if there is such
elector, on being admitted to the polling station shall take tlie oath to
keep secret the names of the candidates for whom any of the voters has
miuked his ballot paper in his presence, as hereinafter recjuired, which
oath shall be in the form Q in the first schedule to this Act. 37 Vic. ch.
1), s. 36, part.

If an agent, then was Harrison guilty of the corrupt
practice attributed to him ? The voter, it appears having
turned to go out, the poll clerk said to him " don't go out,
if you do you cannot conm back again," so he tui-tied and
came back, and after asking Parker " what is your objection
to my vote" anJ. receiving the reply, "I don't discuss
voters' qualifications here," and requiring him to be sworn;
and while, Parker says, " the officer was reading oath T to

542

DOMIXIDX ELECTION'.

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him, but he still hesitated."— (Q. Who did ? A. Nixon tlit-
voter.) — Harrison the other scrutineer said : "Your vote is
perfectly good, Tom, take the oath, Tom — I will l>e
responsible." " So he took the oath and voted." And
Nixon himself says in answer to the question :

I>iil Harrison take any part when your vote was challenged? A. H •
insisted that I should take the oath. Q. What did ho say ? A. He said
my vote was perfectly good. Q. Anything else? A. That was all; I
took his word and went and voted.

If the scrutineer or agent representing the candidate
chose to interfere with the voter and urge liim to take r^n
oath ho could not truthfully take and, in the language of
the voter himself, " he insisted that I should take the oath,
he said my vote was perfectly good, I took his woid and
wont and voted : " and further, pi-ofessed to assume the
responsibility of the voter's doing so, this, in my opinion,
was such a wilful inducing or endeavouring to induce the
voter to take a false oath as to amount to a corrupt
practice.

May it not, indeed, be fairly said that this was some-
thing more than mere inducing or endeavouring to induce
this voter to take this oath which, but for the agent's
interference, the hesitating voter might not, and from his
own evidence, most probably never would have taken, for
he says, " I took his word and went and voted ? " Did
not this insistance that he should take the oath, and this
assumption of responsibility for his so doing, if not
amounting to a legal compelling very nearly approach
moral compulsion or coercion ? This having been done
in a place and at a time when the scrutineer or agent
ought not to have interfered with the voter, who should
liave been left to act as his own judgment and knowledge
of his position prompted, and on his own responsibility,
consti'ains me to the conclusion that what Harrison did
was done corruptly and wilfully with the intention of
securing a vote, at all hazards, for the party whom he was
representing; for I cannot think he would have been so
uriTont that the oath should be taken if he had not been

HALDIMANK.

543

well assured for whom the voter intended to vote : and I
urn the more impressed with this conviction inasmuch as
the evidence stands uncontradicted, and I cannot doubt
but that Harrison would have been examined at the trial
could he have contradicted the evidence of Parker, or have
shewn chat what he did was done under a misapprehension
or mistake either of fact or law, that he honestly believed
the voter was entitled to vote and. could truthfully take
the oath, and that what he did was not done wilfully or
corruptl}'. As no excuse or justification has been put
forward for his conduct the sitting member must take the
consequence of his improper act and the election must be
declared void.

Strong, J. — I have tiie misfortune to differ from the
majority of the court in the Harrison-Nixon case.

The particulars of this charge are, as they have just
been stated by the learned Chief Justice, that Frederick
Harrison, who was the scrutineer for the respondent at
polling place No. 6, in the township of Walpole, induced
Thomas Nixon, whose name appeared on the registry as a
voter, to take a false oath and to vc»te though not qualified,
and thereby committed a corrupt act, as an agent, sufficient
to avoid the election. It appeared that Nixon was
reiristered lis a farmer's son and that his father had died,
on the 4th April, 1886, before the final revision of the lists,
but that his name was left on the list as a farmer's son ;
that the oath administered to him, and which he certainly
coidd not properly take, was oath"T" which reads as
follows :

I aiii a resident witli my futlicr within this electoral (listrii;t, and that
1 have not been absent from such residence more than six montlid since I
■was placed on the list (if voters,

and that he nevertheless took this oath.

Two witnesses were examined on this charge, the voter
Nixon and Parker, the scrutineer for the petitioner at the
poll in question.

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DOMINION ELECTION.

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What is said by Nixon is as follows : —

Q. Did Harrison take any part when your vote was challenged ? A.
He insisted that I should take the oath. Q. Wliat did h•^ a ly ? A. He
said my vote was perfectly good. Q. Anything else ? A. Tliat wns all ;
I took his word at- i went and voted. ♦ « » •

Q. The deputy ret \rning-nfiicer I suppose, read the oatli over to you
before you took it ? A. Yes, sir. Q. Was this part of it : " That I am a
resident with my father within this electoral district and have not hecn
absent from such residence more than six months since I was jdaced on
the list of voters ? A. I do not remember that part "with my father, etc."

Q. And when you went in the polling booth, as I understand, tlio
gentleman who was there was 5Ir. Parker ? A. Yes, sir. Q. Who vtas
there representing Mr. Colter, required you to be sworn? A. Yes, sir.

Then Parker is called and he is examined by the counsel
for the petitioner :

Q. Were you there when Mr. Nixon, the last witness came to vote ? A.
Yes. Q. What took place ? A. When he came in I said to the returii-
ing-ofticer, I want this man sworn ; Nixon said what is that for ; he said
I have voted liere three or four times and you have never said anything -,

said, well, I want you sworn ; so he turned to go out— the poll clerk
and I am not sure whether others saiil to him. Q. The poll clerk — who
do you mean ? A. Andrew Falls ; that is the name he didn't reinendwr :
the poll clerk said don't go out ; if you do you cannot come back again :
so he turned and came back, and he said to me what is your ol>jection to
uiy vote, Mr. Parker ; you have never objected to it before ; and I replied
I don't discuss voters' qualitications here, and I turned to the returning
officer and says I require him sworn ; so the returning officer took the
book to swear him, and I said oath " T," to him, but still he hesitated.
<J. Wlio did ? A. Nixon the voter ; so Harrison, the omer scrutineer,
said your vote is perfectly good, Tom ; he said take tlin oath, Tom, take
the oath ; I will be responsible ; so then he took the oath and voted. Q.
What oath was read to him'.' A. Oath "T," the farmers' sons' oath.
■Q. Did you have a copy of the oath ? A. Yes, I had a copy of the .\ct.
Q. How did you know it was oath " T " ? A. I just looked over it and
could see it. Q. You followed the reading ''. A. I could see when he
began to read what he was reading and I said oath " T " to the retnmii:;^'
officer before he began. Q. And was this part of it, " That I am resident
with my father within this electoral district " ? A. Yes, sir, that is t\n'.
last.

On cross-examination he says : —

Q. You turned to the returning-offict'r and siiil what ' A. I want liiin
sworn. Q. Now what further? A. He hesitated again and Haiii-oa
said your vote is perfectly good, Tom, and hn rose ))artly off hia feiit, he
says take the oath, Tom, take the oath Tom, I will bo responsible. Q.

l''&:

HALDIMANl).

545

What (lid ydu say to tliat ? A. Notliiu;^. Q. Then what flitl you do ?
A. Went ti) tlie rctnrningotficer, took the book, I said oath "T." Q.
Thereby meaning ? A. The farmer's sons' oath. Q. Then what did the
returning-officer do ? A. He read the oath, read the farmer's sons' oath.
Q. Did you hear him reading it ? A. Yes.

Now upon this evidence the learned judge found that

Nixon had a good vote and cor:claded his adjudication on

the charije as follows : —

Now, under those circumstances, can it be found that Mr. Harrison
wilfully and corruptly induced Thomas Nixon to take a false oath in
order that his vote, which was perfectly good without any false oath,
might be put in ? I think that such a finding would not be justified by the
facts, and I find therefore that Mr. Harrison did not wilfully and
corruptly induce Thomas Nixon to take the oath which he did, and I
<lismi3S that charge also.

As regards agency I am not clear that Harrison who
was a mere scrutineer, and therefore an agent with a
limited authority, was an agent for whose corrupt acts the
respondent was according to the general law of elections
answerable. But 1 will assume rather than admit that he
was such an agent. We have then to consiiler the
provisions of the law applicable to the cases and these are
contained in sees, 90, 91 and 93 of the Dominion Elections'
Act:

Sec. 90 enacts that :

Every candidate who corruptly, bj' himself, or by or with any other
person on his behalf, compels or induces or endeavours to iiuluce any
person to personate any voter, or to take a false oath in any matter
wherein an oath is required under this Act, is guilty of a misdemeanour,
etc.

And sec. 91 declares that:

The offences of bribery, treating, or undue influence, or any of such of-
fences, as defined by this or any otliei' Act of the Parliament of Canada,
peisonation or the inducing any person to commit personation, or any
wilful offence against any (iue of the seven sections of this Act next
preceding, are corrupt practices within the meaning of tliia Act.

And sec. 9.'J :

If it is found t)y the report of any court, judge or other tribunal for V.xc
trial of election petitions, tliiit any cor,-npt practice has been committo;!
h\ any canditl.ite ;it an election, or b^\ his agent, wliether with or witli
out the actual knowledge and consent of sucli candidate, if he has been
■elected shall be void,

70 — VOL. I. E.C.

■ni

IlLli:

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I'ii

546

DOMINION ELECTION.

Now it is apparent that these provisions do apply tf>
make the inducing a voter to take a false oath by an
?igcnt a corrupt practice avoiding the election, provided it
i.s done (as required by section 90) " corruptly," and (as
required by sec. 91) " wilfully."

Then can it be said on the evidence that Harnson acted
" corruptly " and " wilfully ? " — I am of opinion that it
cannot. Supposing that Harrison was aware of the
father's death, it appears to nie that he acted in perfect
good faith when, assuming very naturally, though in point
of law 1 admit erroneously, that Nixon, registered as a
farmer's son, did not lose his vote becatise he had become
the actual owner of the property on which he had resided
with his father, he encouraged him to take the oath
appropriate to his actual status as a voter. That Harrison
did or said anything to induce Nixon to take oath "T " or
anj"" other particular form of oath is not proved. He is
therefore to be regarded as having instigated Nixon only
to take such an oath as jippropiiate to his case. This I
cannot hold to have been a wilful and con-upt inducement
to take a false oath.

2nd. Further Nixon was originally r(>gistered as a
fsxrmer's son and at the time he was registered it was true;
his father died in April, 188G, and this election took place
in 1887. There is no proof that Harrison knew that
Nixon's father was dead, in which case oath " T " would
have been the proper oath.

I must hold, therefore, that the act was not a wilful one,
was free fjom any corrupt intent, and I consequently
agree in the conclusion of the learned judge at the trial
that the charge was not proved.

There is another charge, that Allen, a scrutineer for the
respondent, induced Dougherty, a voter to take a false
oath. It occurred at polling ])lace No. 8, in the township
of Walpole.

This charge, in my opinion, wholly fails. The facts are
that Doiigho'ty removed from the house his father resided
in into another house on the same farm, but that he

J Si'

PT 'I'

It \

HALDIMAND.

547

pply tf>

I by an

vided it

and (asi

on acted
that it
of the
L perfect
i in point
red as a
I become
d resided
the oath
Harrison
1 "T"or
1. He is
ixon only

ed as a
was true;
ook place
new that
' would

vilful one,

sequently

the trial

■r for the

ce a false

township

facts are
er resided
t that h&

occupied this last house as a caretaker or servant of l>is
father, the possession being clearly in the father. As-
suming that agency was proved, and that is a very
considerable assumption for there is much doubt about it,

1 hold with the learned judge that the voter had a
perfectly good vote and was able consistently with the
truth to take the oath which was administered to him.

3rd. As to the charge that the deputy returning-ofticer

at polling place No. 4, Oneida, ])ut into the ballot box and

counted ballots not duly received from electors and which

is thus referred to in the notice of appeal :

."). The cliarge that the deputy returning-oflficer at polling sub-division
No. 4 in the township of Oneida, put into the liallot box and counted
ballots not duly received from t. e electors in the lawful perfonnance of
his duties as deputy returning-officer at the said election.

I am clear there is nothing in this case. It relates only
to one ballot which could not alf'ect the result of the
election. Moreover the county judge on the recount made
such an allowance in favour of the defeated candidate as
afforded a sufficient remedy for any irregularity which the
evidence establishes.

Another case is charge No. 6 in the notice of appeal,
viz.:

The charge that the deputy returning-officer at polling sub-division No.

2 in the township of Onuida, improperly marked ballots received by liiui
at the said election, from electors before depositing the said ballots in the
ballot box, and thereby prevented the said ballots from being counted at
the said election, and the ruling of the learned judge, rejecting the
evidence on behalf of the petitioner which was tendered by him at the
trial in support of the said charge.

Nothing could be made of this charo^e without admit-

ting the evidence of voters to show how they voted. This

I hold cannot be done. To do so would, in my opinion, be

a direct violation of the Act which requires secrecy. Sec.

7, of the Dominion Elections' Act, enacts:

No person who has voted at an election shall, in any legal proceeding
questioning the election or return, be required to state for whom he voted.

It is no answer to this to say that secrecy is imposed for
the benefit of the voter and that he can waive it, for I hold
secrecy to be imposed as an absolute rule of public policy.

M i

548

DOMINION ELECTION

I*,

11:

and that it cannot be waived. The whole purview of the
law is difteient from the English Act and from the Ontario
Act. I am of opinion, therefore, that the learned judge
riglitly rejected the evidence, though I may not be able to
agree with the grounds he put it upon.

The next charge that is important is stated as follows in
the notice of appeal : —

7. The charge that many persons voted at the said election who, for
different renaons were not qualified to vote thereat, and the refusal of the
learned judge at the trial to enciuire into the right at the time of the
election of any person to vote thereat, if the name of such person appeared
on the list of voters as finally revised, and certified by the revising
barrister and the rejection by the learned judge at tlie trial of the evidence
tendered on behalf of the petitioner to establish that many persona who
voted at the said election, had between the time of the final revision of
the voters' list by the revising barrister and the date of the said election,
forfeited the right to vote thereat.

This principally relates to the case of farmer's .sons
whose votes were impeached. It appears to me that the
evidence was, if admissible in other respects, material,
inasmuch as if it were shewn that bad votes were received
more in number than respondent's majority that would be
sufficient to avoid the election. Then, as regards the
qualification of farmer's sons, I think it clear that the
registry was not conclusive, though as regards qualification
founded on ownership it appears to be conclusive.

I found this opinion on section 41, which is as follows :
41. Subject to the provisions hereinafter contained all persons whose
names are registered on the list of voters for polling districts in any
electoral district, in force under the provisions of "The Electoral
Franchise Act" or of the Act passed in the session held in 48th and 49tli
yeais of Her Majesty's reign and intituled " An Act respecting the
Electoral Franchise " on the day of the polling at any election for such
electoral district, shall be entitled to vote at any such election for such
electoral district and no other person shall be entitled to vote thereat,
read in conjunction with section 45 sub-sec. 2 enacting
that

Such elector, if required by the deputy returning-officer, the poll clerk,
one of the candidates or one of their agents, or by any elector present,
shall before receiving his ballot paper, take the oath of qualification in
the form S. or in one of the forms T, U, V, or W, in the first schedule to
this Act, as the circumstance of the case require — which oath the deputy
returniug-officer and poll clerk are each hereby authorized to administer.

IfALDIMAND.

54!)

lers sons

And the last parngiaph of oath " T,"

That I am a resident with my father within tiiis electoral ilistrict, and
that I have not heen absent from such resilience for more than six nvjnths
wince I was phicetl on the said list of voters.

Now I contend that the proper construction of tlicso
provisions is that no one is to vote who has not tho
qualification arising out of a continuous residence suhse-
quent to registration, for I say that sec. 41 is subject to
the exception afterwards contained in sec. 45, sec. 2, which
by requiring the oath of qualification, makes, in my opinion,
the fact of the continuance of the (qualification, stated in
the last paragraph of oath " T," of residence with the
father essential as a preliminary to the right to vote. It
is true that it makes the oath suflicient evidence for tho
purpose of authorizing the reception of the vote, Vjut it
does not, in my opinion, make it conclusive evidence, and
therefore on a scrutiny further cn([uiry is admissible, and
if it is shewn that a larger number of bad votes than the
majority were .admitted the election ought to be set aside>
though the seat could not, of coinse, be awarded, inasmuch
as no voter can be asked how he voted. Sfoive v. JoUi^'e,
L. R. 9 C. P. 446 ; does not apply. The registry there
was conclusive, here it is not.

Therefore it appearing that evidence duly tendered at
the trial was improperly rejected, there should be furtlier
enquiry and the witnesses whose evidence was so rejected
should be examined pursuant to sec. 51 ss. 3 of the
Controverted Elections' Act, R. S. C. ch. 9 ; and the appeal
.should be ordered to stand over for that purpose.

FoURNiKR, J. — La petition so plaignant de lelection de
I'intim*^ contient les alk'gatinns ordinaires de corruption et
all^gue en outre que des bulletins out 4t^ admis ot rejetds
illegidement ainsi que beaucoup d'auti'cs irregularitds, et
conclut a I'annulation de lelection. Sur les trente-neuf
accustions de menees corruptrices contenues dans les par-
ticularitds, I'enquete a eu lieu dans un grand nombre de
cas, et a <^t^ abandonn^e dans plusieurs autres. L'intimt?

! i

IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

I.I

1.25

li^ 12.8
^ I""

llllgl

2£

1.8

1.4

— 6"

Photographic

Sciences

Corporation

23 WEST MAIN STREET

WEBSTER, NY. 14SS0

(716) 872-4503

.<i'

<•>

550

DOMINION ELECTION.

avait donmS avis qu'il proc^Jerait k la preuve sur des ac-

CMsaiions r^criminatoires. Mais la petition ayant 4t6 re-

Jet'Je en entier, il ne s'est pas trouv^ dans robligation de

proctJder sur ces charges.

Parnii Ics accusations rejet^es par I'honorablejuge Street

qui a pr^sid(^ au proems et au sujet desquelles il y a appel,

se trouve la huiti^me qui est dnonc^e dans les termes

suiyants :

80. Frederick Harrison, a resident of the township of Walpole, an agent
of the respoiideut did, at polling station number six, in the township of
Walpole, indii -<> Thomas Nixon, a resident of the township of Walpole, to
take a false o;. . : ^i. the poll and to vote at the said election, although not
quiilified to da 30.

Itc pienve «i > ^te accusation faite par Thomas Nixon
Ic vot'var n; -e et par William Parker, I'agent de
1 autre candidet, ''^J. Colter, est si complete, qu'elle ne laissc
aucun doute sur Texistencs du fait impute.

Nixon setant pr^sentd pour voter, Parker, I'agent de

Colter, le requit de preter serment; il s'en plaignit, mais la

demande ayant dte reiterde, il fit quelques pas pour sortir

du poll. Cliangeant subitement d'idee, il revint sur ses

pas et se plaignit de nouveau de ce que I'agent exigeait de

lui le serment de qualification. L'agent Parker ayant

encore insist*^, le depute-officer rapporteur commen^*a a lire

la formulo du serment de qualitication pour les voteurs

enr<;i;istres sur la liste dcs tils de fermiers. Nixon hdsitait

encore, lorsquo Harrison, I'agent du membre siegeant so

levant a demi, interrompit I'oflBcier rapporteur en disant au

voteur :

Your vote is perfectly good, Tom, take the oath, Tom, take tho oath ;
I will bo responsible.

Immediatcmeiit apros ces paroles, Nixon fit le serment

requis et vota. Les meines faits sont aussi prouves par

VVm. Parker, do la maniore la plus positive. Dans son

t(?inoignage, Nixon dit k propos de I'intervent'on de

Harrison, que ce dernier voyant I'objection k son vote

insista k ce qu'il fit serment.

Harrison insisted that I should take the oath. He said my vote was
perfectly good. That was all, I took his word and went and voted.

UALDIMAND.

551

Le serment prett^ par Nixon est celui de la formulu T.
concernant Ics fils de ferinicrs, se tenninant par la
declaration :

That I am a resicleiit with my father within this electoral District, raid
that I have not heeii ulwciit from such rcHidi-uce more than six mouths
since I was placed on the list of voters, etc., etc.

L'agence de Harri.son est prouvi5e. II avait ete spdei-
alenient noinm^ par t^crit pour represcnter rintinri^ a co
poll. II etait de son devoir de prot(^<»er les intei'6ts de
Tintiin^ en resistant a des objections non fonddes qui
auraient pu euipeclier des voteiirs de donuer leurs votes en
faveur de son candidut. Muis celle qui avait 6t4 prise
contre Nixon dtait bien fondde. Portd sur la liste de.s
voteurs comnie fils de fermier, denieurant avec son pSre, il
uvnit, lors de son vote perdu depuis longtemps sa
qualitication de voteur, par le dt^ces de son pere. II avait
aussi laisse la propridtd sur laquelle il avait 6t6 qualifi^
lorsqu'il demeurait avec son pere, pour aller demeurer avec
une de ces soeurs sur une autre propriete. II netait
enregistre comnie voteur qu'en qualite de tils de fermier et
en aucune autre quality sur aucune autre liste. C'e.->t
aiusi qu'il a vote. Le serment qu'il a prete qu'il etait
resident dans le district electoral avec son jjcro dtait
evidemment faux et tout-a-fait contraire a la veritiS. II
doime lui-meme la date du duces de son pore dans sou
temoignage comme ayant eu lieu le 4 avril 18.SG. Samere
etait morte depuis environ dix ans. 11 n'a pas pret<5 le
serment sans beaucoup d'hesitation, comme on I'a vu par
son propre rdcit. Sans Tinsistance de Harri.son, il est clair
qu'il serait retourue sans voter. Ses hesitations .sont
faciles h. comprendre, il lui re|)ugriait saus duute beaucoup
de faire le serment qu'il residait twee son piire mort depuis
19 mois. Mais presse par Harrison, son voisin (jui .savait
aussi bien que lui la mort de son pere et qui, d'apr5s sa
maniiire de lui adresser la parole, semble etre avec lui sur
un pied de familiarite intime, il a fini par se laisser persuader
qu'il n'y avait pas de mal k faire ce serment ; il a pu tout
probablement se croire ddgagd en conscience de toute

i i

552

DOMINION ELECTION.

responsabilite par le ton pcTSuasif et la persistance de^
Harrison u lui rdpdtcr que son vote i^tait bon et k lui dire
de voter, qu'il prenait tout sur sa responsabilite. Sana
I'intervention de Harrison, il efit sans doute suivi sa pre-
miere pens^e de s'eii aller sans voter; dvidemmcnt ce vote
n'est dd qu'^ la pressioii exercde sur Nixon par Harrison.
Ce dernier ne pouvait certninonient pas etre de bonne foi
lorsqu'il iijj;i.ssait ainsi, il ne pouvait ignorer la mort du p^re
de Nixon tlont une des propri^tds adjoignait la slenne.
Dans tons les cas puisqu'il prenait sur lui d'affirnier la
validit(J du vote, tandis qu'il ^tait clairenient illt^gal, sa
conduito a eu I'cfFet de rondre Tintim^ responsable des
consecjuonces de son action. S'il ignorait la vt5ritaMc
position de Nixon fils, il aurait dH sen informer avant d'eii
parler avec autant d'assurance qu'il I'a fait. Comme tant
d'auties, il a mis plus de zcle que de discretion dans
Texorciso de ses functions comme agent et son principal
doit malheureuHement en supporter les consdquenees.

Harrison s'ost done en connaissancc de cause rendu
coupable du fait dindnirc Nixon a faire un faux serment.
L'ott'ense qu'il a ainsi connnisc est definie comme suit par
la secti«m 90 de I'acte des elections, ddclaiant :

That c'cry candidate who eoiruptly by himself, or by any other i)er8oii
on his behalf, induces or endeavours to induce any person to take any false
oath in any matter wherein an oath is required under the Act, is guilty uf
a misdemeanour.

Par la section suivante, 91 me, il est ddclard que
Any wilful offence against any one of the seven sections of this Act
next preceding, are corrupt practices within the meaning of this Act.

Le fait d'avoir induit Nixon i\ faire un faux serment est
clairenient, d'apres ces sections, une niende corruptrice
commise par un agent de I'intime, et a eu en consequence
I'eftet d'afiecter la Idgalitd de I'dlection.

Dans la section 90, le mot cot^uptly ne signifie pas
d'une mani^re absolue que I'aete, qualitld ainsi, a dte fait
dans uii but immoral, malhonn^te ou r>v >c malice. Ce
mot y est plutot employd pour signifier que 1 acte visd par
cette expression est une violation de la prohibition du
statut k cet dgard {Cooper v. Slade, 6 H. L. Cas.). II n'dtait

HALDIMAND.

568

"pas ndcessaiiv «!($ faire la ))reuve que Harrison, en agissant
coinine il I'li fait, avail une intention nialhonndte et iui-
iiiorale. Tontelois il n'a pas oft'ert son serment pour
t'Xpiiquer ses reconmiaiiclntions. Cependant I'opinion de
I'honorable juge a ete que la preuve de I'intention d&
Harrison nurait du etre faite, iiiais elle est contraire a
rinterpr^tation adoptive par les autorites suivantes :

All the judges have consulered that the word 'comiptly'

ntcaiis, witli tlic object and inteiitiun of doing that thing which the statute
intended to forbid. It does n(»t mean corrui>t in tlie sense in which yo\i
inivy look upon a nrm as \niin^ a kn-ivc or a villain.

I'erMr. Justice lilackbuiw in The Xorlh yorfotk Ccue, 1 O'M. 4 H.
•JStt, at pugc 24-2.

And in discussing the nie:<.ning of the word in considering wheth( i'
t I'uating had or had not been done corruptly, Mr, Justice Hiackburn says,
** the point to be considereil is, Was it given with an intent to iallucncc-
tliC election ? "

The W<tliin{tford Cane, 1 O'M. & H. 57, at p. 59.

The word ' corruptly ' means contrary to the intention of this Act, with
it motive or intention by means of it to produce an etfect u])on the election.

Per Mr. Justice Blackburn in The IJtreforU (oKe, 1 O'M. & H. , at p.
1»5.

This langnnge is quoted w ith approval by Mr. Justice Mellor in The
f.auiireMtoii Ca-^e. 2 O'M. & H. 129, at p. 133.

And by Mr. Baron Dowse in The tairicljtrfjvn Cane, 3 O'M. & H. at
p. 91.

See also, on the same subject, The Louth Cani, 3 O'M. & H. 161.

Harrison conn:;issait parfaiteuient Tubjection faite a
Nixon, il avait c 'endii Parker deinander radunnistratiou
dvL serment suivant la forniule T. an sujet du tils de
ferniier ; il avait (^te temoin des hesitations de Kixon, niai^-
.sii crainte de perdre un vote pour i'intirne le doniinait
tt'llement, qu'il a exerce toute la pie.ssion dont il c'tait
capable sur ce jeune ho(nnie pour I'eiigaoer k pieter un
herment faux. Non seulement Harrison uvait Tintentiou
d'assurcr un vote a son candidat, mais il y a mis de la
persistance et I'a obtenu au moyen d'un serment faux. II
ist inutile d'on dire davantage pour prouver que i'acte
de Harrison a dte fait volontairement et non par inadver-
tance. 11 a manifestu sa volonti^ asscz sou vent et n'a d(k
«on succ6s (ju'k ses efforts r^it^res. Quels que soient les
motifs qu'oii lui suppose son actc a (^t(5 au moius wilful
71 — VOL. I. E.C.

iti

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554

DOMINION ELFX'TIO,^.

<lans le sens d'intentionnel, tel qu'il a 6t<? interprdte par cetie
cour dans la cause de I'i^lectiun de Selkirk, Young v. Smith,
4 Can. S. C. R. 494.

Je suis en consequence d'avis quo pour ce scul fait de
Harrison I'^lection doit 6tre annulee et I'appel maintenu
j»"ec d^pens.

Taschereau, J. — I am of the opinion that this election
sliould be annuled on the Harrison- Nixon charge, at No.
6 Walpole polling division.

The facts relating to this charge are as follows :

Thomas Nixon voted at the election. His name was on
the voters' list as a farmer's son and not in any othtr
capacity. He is an unmarried man, living with his sister,
on the property in respect of which he voted ; his mother
died some years ago, his father also at the time of the
election, had been dead a little more than nineteen months.

Nixon's post-office is Hagersville, and he has lived on
the place ever since he was born.

The respondent's agent at this polling place was Frede-
rick Harrison whose post-office is also Has.' sville, and
who appears assessed as owner of the next fai.n to Nixon,
in the adjoining concession.

When Nixon came to vote, one of the scrutineers at the
poll required that he should be sworn; Nixon expostulated,
but the demand was repeated, and Nixon thereupon turned
to go out, but came back and again remonstiuted with the
scrutineer, and was again met with the demand that he be

sworn.

The deputy returning-officer began to read to him the
form of oath for persons registered on the list as farmers'
sons, but Nixon still hesitated, when Harrison partly rising
off his feet and interrupting, said : " Your vote is perfectly
good, Tom ; take the oath, Tom, take the oath ; I will
be responsible," and thereupon Nixon took the farmers'
sons' oath and voted.

Nixon states in his account of what took place, that on
his vote being challenged Harrison "insisted that I should

HALDIMAND.

555

take the oath. He said my vote was perfectly good.
That was nil ; I took his word and went and voted."

On these words the petitioner alleges the said Harrison ,
a a agent of the respondent, induced or endeavour l io
induce the said Thomas Nixon to take a false oath when
tendering his vote at the polls and was thereby guilty of a
corrupt practice under the Dominion Elections' Act, sec. 90
whhh provides that every candidate who corruptly by
himself, or by any other person on his behalf, induces or
endeavours to induce any person to take any false oath in
any matter wherein an oath is required under the Act, is
guilty of a misdemeanour, and sec. 91 by which any wilful
offence against the preceding section is made a corrupt
practice within the meaning of the Act. As to the facts
there can hardly be any dispute.

First, as to Harrison's agency, there is no room for doubt.
He was specially appointed by the respondent in writing
to represent him at this poIi, and it was in the course of
his duty as such representative of the respondent that In;
interfered to have Nixon's vote taken.

2nd. The oath which Nixon took was unquestionably
taken in a matter wherein the statute reciuired an oath to
be taken. One of Colter's scrutineers requiring it, Nixon
could not get a ballot paper without taking the oath, and
the farmer's sons' oath, he being on the list as such, was
the only one that could be administered to him as was
shown.

3rd. It is as conclusively established that the oath he
took was a false one. He swears that he was then re-
sident \yith his father within tlii.-> electoral district; yet
his father had been dead neaily two years.

4th. Harrison induced Nixon to taivc the oath. In fact,
he would not have taken it, it is plain from the evidence,
if Harrison had not interfered to induce him to do so. He
says that Harrison insisted he should take the oath, an>l
he said " my vote was perfectly good. I took his wor>l
and went and voted."

Now, was thb act of Harrison a wilful act and one

' :.i:r

m
I'll

."iSG

DOMINION ELECTION.

corruptly done within the meaning of the Elections' Act C
It is settled law that the word "corruptly" as used in sec.
90 of the Elections' Act does not mean " wickedly, im-
morally or dishonestly/' neither can it mean "consciously "
or with intent to commit an offence. The word means,
as per Lord Craiiworth, in Cooper v. Slatle, 6 H. L. C.
74G ; " in violation of that which this statute was passed
to prohibit."

Here Harrison's object and intention is manifest. He
heard the objection raised to Nixon's vote ; he knew the
point of the objection, as the scrutineer who objected
had also stated the particular form of oath which he
demanded to be arlmii»istered, viz. :— that for a farmer's son
not claiming the benefit of the provisions as to occasional
absence ; he had seen Nixon in the first place turn away
unwilling to take the oath ; he saw him then hesitating ;
the voter was a young man ; Harrison was manifestly
alarmed lest a vote should be lost to the respondent it
something was not promptly done to reassure the voter
and encourage him into taking the oath ; he hastened to
assume the responsibility of what he was urging Nixon to
do ; he heard the oath read containing the averment of resi-
dence with the father, but said not a word to retract or
modify the urgency of his previous language ; he mani-
festly acted with the object and intention of securing the
vote at all hazards, even though it was necessary that the
untrue oath should first be taken.

He could not have believed that Nixon's father was
living ; and the respondent did not attempt to bring him
in the witness box to swear to that belief. He lives in the
same |)lace as Nixon, and is the owner of a farm next to
Nixon, in the adjoining concession. He knows him
intimately as is evidenced by the familiar way in which
he addresses him " take the oath, Tom, take the oath ? "

This witl) the fact of his not coming forward to swear
the contrary cannot but create a strong presumption that
he knew of Nixon's father's death. But even without
this knowledge the corrupt act is proved. He induced

HALDIMAND.

U67

Nixon to knowingly, wilfully and corruptly take a false
oath required by the Act, fur he must have known thut
the fanner's sons' oath was the only one that Nixon couM
give so as to vote. This is what the Act in plain terms
dec!ar«^8 to be a corrupt practice. And the scienter of
Harrison is immaterial. If an agent assumes recklessly t >
induce a voter to take an oath without previously ascer-
taining or taking any steps to nscortain whether that oatli
will be true or not, and the oath turns out to be a Talsc
one, I think it clear that this agent has committed thi-
oflence created by section 90 of the statute. He has
procured a vote, which, without that false oath, could not
have been recorded, lie has consequentl}' acted "in viola-
tion of that which the statute w^as passed to prohibit."
To say that Harrison's ncienter was necessary to com|>lete
the ou''nce, is to say that he must have been guilty of
subornation or perjury. Now it is, as I read the section,
something more than subornation of perjury that Parlia-
ment has legislated against, another and different offence
that it has created. And I cannot see that the fact that
the statute has declared this to be a misdemeanour makes
any difference. No viens rea no scienter is necessary
where a statute prohibits the very act that has been done,
neither is ifiiiorantiajuris or iynorantla facll an excuse.
In R. v. Prince, 13 Cox, 138; for instance, the defendant
having been found guilty of abducting a girl urider sixteen
the court held the conviction right although the jury had
found that the prisoner reasonably believed the girl to have
been eighteen. In R. v. Bisltoj), 5 Q. B. D. 259 ; also it was
held that under a statute which prohibits the receiving of
lunatics in a house not licensed, the owner of a house wht)
had received lunatics was guilty of the offence enacted by
the statute, though the jury found that he believed
honestly and on reasonable grounds that the persons
received were not lunatics.

These cases show that ignorance of fact is no excuse
Avhere the act is prohibited by the statute, and go further
•even than it is necessary to do in to the present case. So

i il

538

DOMINION ELECTION'.

under a statute imposing a penalty for having adulterated

tobacco the defendant was held liable to the penalty,

although he did not know that he had such tobacco in hin

possession. Jl. v. Wovdroiv, 15 II. k, W. 40-I'. I also refer

to Attorney-Oeneral v. Lochwood, 9 M. »&: W. 378, 401 ; li.

V. Marsh, 4 D. & Ry. 2G1.

In Ciindy v. Lecocq, 13 Q. B. D. 207 ; Stephen, J., said : —

I do not think that the niuxiin as to the intuM rea huH tto wide uii
.'i|iplication as it is sonietimes consitlcred to have ; in old times and an
iiI)pUcable to the common law or to earlier Mtatntcs, the maxim may have
lieen of general application, but a difference has arisen owing to the
greater precision of modern statutes, and it is necessary to look at the
object of each Act to see whether and how far knowledge is of the essence
of the offence created.

I refer also to the case of Young v. Smith, 4 Can. S. C.
R. 494 ; in this court, and to The State v. Perkins, 42
Vermont 399.

In Mierellea v. Banniny, 2 B. & Ad. 909 ; the word
" knowingly " was in the statute as an ingredient of the
uffence there charged, and consequently the case has no
application here. This word " knowingly " has no doubt
purposely been left out of the clauses of the Elections' Act
which declare what will be coirupt practices.

As to the offence being wilful, I need only refer to the
case of Young v. Smith, 4 Can. S. C. R. 494 ; in this court,
liereiubefore cited. Harrison wilfully induced Nixon to
take the oath, that oath was false ; this constitutes a
wilful offence in the sense of the Election Act. If a man
wilfully does an act which the statute declares to be an
offence, he is guilty of an offence against the statute. See
It. V. Holroyd, 2 M. & Rob. 339 j and Hudson v. McCrae,
4 B. &; S. 585.

I may notice that what the Act dcclaies illegal is the
inducing to take a false oath. It does not say, " inducing
to commit perjury." So that if the oath is a false one,
whether the party taking it knew it to be so or not, the
inciting to take it would appear to fall under this Act.
Nothing in this case, however, turns upon this.

As to the petitioner's claim for the seat, it must be
dismissed.

IIALDIMAND.

550

The evidence of thirty-six voters to show that they had
voted for Colter nt p(»llinjL; division No. 2 Oneida, wa»
properly held not adiiiissihlu by the learned judge at the
trial.

Had the learned ju<lge permitted the enquiry to have
lK5en prasecutt'd as the petitioner desired, it would have in
«rtect di.selosud not merely how those willing to tell had
voted, hut practically how every man at the poll had
voted, because if out of one hundred votes fifty are found
to have voted for A. and fifty for B and the fifty who
voted for A. are called and expressing their willinguess to
tell, do tell that they voted for him, it at once becomes
known who the fifty were who voted for B., although they
may be mo.st unwillini; that that fact should be disclosed.
Jt would be interfering, therefore, with the overriding
principle prevailing throiighout the Ballot Act, and which
embodies a groat public policy, had the learned judge
]iennitted the evidence to be given.

The evidence tendered by the petitioner to prove that
>i certain number of farmers' .sons who had voted had no
right to vote was also properly declared inadmissible. The
list coupletl with the oath, when the oath is required, in
conclusive as to their riglit to vote.

The other irregularities complained of on this appeal
could not affect the result of the case, in the view I take
of it.

The appeal .should, in my opinion, be allowed with costs
and the election set aside.

!i, f'ii

GwYNNE, J. — The scrutiny of ballots having resulted in
leaving unafl'ected the right of the respon<lent in the
election petition to retain the .seat the only material points
upon which, in view of the judgment arrived «t by the
majority of the court, it is neces.sary for me to express any
opinion, are the two charges of corrupt practices made in
eonneciion with the cases of Thomas Nixon and Robert
Dougherty.

500

iNJMtNMoS KI.WTIoX.

These clmrgos were as follows :

1. Fiederick Harrison, a resident of ♦,l:e towtitilnp «>f
Wttlpole, an agent of the respondont did, at ]»ollinnr Htation
number six in thf. towiisliip of 'Valpole, induce Thomas
Nixon, a resident of the township of WalpoK'. to take a
false oath at the poll, and to vote at said election thon;;h
not qualifie<l to do so.

2nd. Stephen Allen, a resi'lent of the township (if
Walpole, an agent of the respondent, did on the 12th <liiy
of November, A. D. IS87, induce Uohert Dougherty to
take a false oath at polling station number throe in the
township of Walpole, though said Robert Dougherty w»s
rot qualified to vote at said election.

These charges are based wholly upon sections 00 and
91 of the Dominion Elections Act, 40 Vic., ch. 8. These
sections are as follows : See nvfe p. .■)45 : —

Before enquiring into the evidence adduced in support
of these charges, it will be well to determine first what is
the nature of the ofience thenun pointed at under tlie
words "induce anj* person to take a false oath in any
matter wherein an oath is required tinder this Act " and
how it can be cominitted and proved.

By the Dominion Act, 40 Vic. ch. 1.54 of the Revised
Statutes of Canada which is a co)isolidation of, and substi-
tution for, the 1st, 2nd, Gth and 7th sections of the
Dominion Statute 32-:ia Vic. ch. 23, and the 1st sec. of 33
Vic. ch. 26 it is among other things, enacted that

Every person who (having taken an oath, affirmation, deularation or
affidavit in any case in which by any Act or hiw in force in C'anada or in
any Province of Canada it is required, or authorized, that facta, inatt<-r»
or things be verified or otherwise asau'cr' or ascertained, hy or upon tltc
oath, affirmation, declaration or affidavit swears or makes any fal^e
statement as to any such fact, matter or tiling, is guilty of wilful tuid
corrupt perjury and liable to be punished accordingly.

A false oath to constitute perjury at common law must
be taken in a judicial proceeding before a competent juris-
diction, but the taking a false oath befoi-e a |)erson compe-
tent and authorized to administer it, although the oath be not
in a judicial proceeding, is a misdemeanour at common law,

HAI.DIMAM).

50 I

tl^ou^'ll I'orjiny cnniiMt. 1»p assi^iinl tipoji sucli nu oath uiilt'ss
'♦. lit' niitlor the j»t<)vi«.i()ii of soun* statiit*' The Qnmi v.
Chipnuni, 1 l\u C. ('. W2; lin/hxi v. Ifothfl,!^^, L.M. I
O. ('. ]<. 211' ; but tlu' nliovo statuU-, cli. 1 o* of thr Reviso.l
Stattito floos make tlio takinir a falw oath in ativ ons»-
wliich, hy any Act or law in forci' in Canada, it is roquirol
or autliori/ofl that any fact, matter or thinjj Ik* vorifu'tl
U|»i)n oath to ho perjury : so that it is dear that perjury
oaji he assifjueil upon an<l for thetakinj; of a false oath in
any ninttor wheiein an oath is rojpiired under tlu; T^ Mii
nion Eleetions' Act, and the proeurin;^ or suhorning ai\\
person to take any sueh false oath, is a i]iisde\Meanor and
punishahle as such wholly independe?itly of the OOtli
section of the said Dominion Elections' Act. The pnnislt-
mont for sueu uiftMices is provided hy the ahovo ch. ].'4 <'l'
the re 'sod statutes which enaets as follows: —

Kv-ry one who coniniUs jierjnry or MuKornatioii of |pi'rjiiry iH guilty «tf ii
iniMli ino:inoiir mikI liiililo to ii tine in the iliNorotioii of th<; coiiil and to
f()iu-t« u-n yeiii-H iinprimminent.

Nt w the !)Oth see. of the Elections' Act does not create
any new ollence or constitute tliat to he a misdemeanour
which was not already amisdemeanour inilepondently of the
section ; what it pttints at is, as appears pluiid}' hy the
language of the .section, an act which is already rccognizetl
hy law to he amisdemeanour, to which oft'encc punishment
is by law alread}' annexed, and the object of the section is
to add to such piniishment, a further jMinishment namely —
that the person who is guilty of a misdemeanour of coi-
ruptly inducing or endeavouring to induce any person to
take any false oath in any matter wherein an oath is
veiiuired under the Act, in addition to any other punish-
ment to whi(;h ho is lialijc foi- such otl'eiice, .shall forfeit the
sum of §200 to any person who sues for the same ; and the
Dlst sec. makes the wilf'td committal of the oH'ence speci-
fied in the !)Oth sec. a corrupt practice under theprovi.sjoiis
of the Election Act, so as not oidy to avoid the election of
the canditlate who may he guilty of the offence, hut to
disqualify such candidate for the period of seven years
72 — VOL. I. E.c.

562

DOMINION ELECTION.

ft'M

i>?

fi'oin being capable of being elected to the House of
(\)nimons and of sitting therein, or of voting at any elec-
tion of a member of that House, or of holding any oflicu
in the nomination of the Crown, or of the Governor-Genei Jil
of Canada.

Before a judge sitting without a jury, as he does upoi»
an election petition, finds any one guilty of an offence to
which such extremely penal consetjuences are annexed, he
should be, and on an appeal from his decision this court
should be, well assured of the true construction of the
sections of the Acts under consideration, iind that the offence
to which such penal consequences are annexed has been
clearly estab'ished by evidence no less sufficient than
would be requDcd to justify a conviction by a jury upon
an indictment for the offence.

Now, as to the construction of the sees. 90 and i)l, it is
expiossly provided by thctn taken together t'lat the offence
of inducing a person to take the false oath referred to
therein consists in wilfully and corruptly (in the sense
that those words are used in an indictment foi* subornation
for perjury), inducing a person to take an oath in a matter
wherein an oath is retiuired to bo taken by any Act of the
Dominion of Canada, false swearing in which oath is by
the before herein mention jd ch. l-'^i of the revised statutes
of Canada made a misdemeanour for which the person
taking the oath might be indicted for and convicted of
perjury.

Now the offence of wilfully and corruptly inducing or
pi'oeuring any person to take such an oath is the misde-
meanour known In law as a subornatioii of perjury, to the
complete perpetration of which offence knowledge of the
falsity by the pei'son accused is essential ; and this is the
law also in the case of an indictnientfor the misdemeanour
of procuring or inducing another to take a false oath, upon
which perjury could not be assigned, both misdemeanours
as to the elements constituting the offence standing
precisely on the same footing. Formerly it was necessary
to be expressly averred in the indictment, but now if the

' i

HALDIMAND.

06$

J1I

party who is charged with liaving corruptly iiulucod

Nixon to take the uath which he did take was indicted

for that offence, it would be sufficient to set out the

substance of the offence in the niann- r prescribed by the

108th sec. of ch. 154 of the revised statutes, which is,

verbatim, identical with tlie 21st sec. of the Imperial

Statute 14-15 Vic. ch. 100 and enacts that:

In every iudictnient for suljunuvtion uf perjury or contracting with uuy
person to commit wilful antl corrupt perjury or for inciting causing or
procuring any person unlawfully, wilfully, falsely, frau<lulei'tly, ileceit-
fully, maliciously or corruptly to take, make, sign or subscribe any oath^
uttirmation, declaration, atlidavit, deposition, bill, answer, notice, certifi-
cate or other writing, it shall be uutiicient wiienever such perjury or other
offence aforesaid has been actunlly comniittcd to allege the offence
of the person wlioactuiiliy comnvJtied such perjury or other offence in the
manner hereinl>efore mentioned, and then to allege that the defendant
unlawfully, wilfully and corruptly ditl cause and procure the said person
to do an<l conmiit the said offence in manner and form aforesaid ; and
whenever such porjnrj' or other offence aforesaid has not actually been
committed, it shall be sufficient to set f(trth the substance of the offence
charged upon the defendant without setting forth or averring any of the
matters or things hereinbefore rendered uimecessary to be set forth or
averred in the case of wilful and corrupt perjury.

That is to say without setting forth the bill, answer,
information, indictment, declaration or any part of any
proceeding either in law or equity, and without setting
forth the commission or authority of the court or person
before whom such off'enco was committed.

Upon an indictment for subornatiou, since the pa.ssing
of 14-15 Vic. ch. 100, it is as necessary as it was before
that it should be proved : — 1st. That perjur}' had been com-
mitted by the person who took the oath and unless that
be proved the defendant cannot be convicted of the subor-
nation. Secondly, the subornation or previous inducement
or procurement to commit that offtMice — that is to say, it
must be proved that the defendant solicited or procured
the person who took the oath to take it, knowing the same
to be false, or that by taking it the party so doing would be
committing perjury, Archbold's Criminal Pleading Edit-
188U, p. J)42 ; Roscoe's Criminal Evidence, 10 Edit., 1884,
p. 8G4.

f'l- •

■I >
t

- I, -!

504

DOMINION ELECTION.

;'.«.•

U.I ,. "

ii >

Now, that any person can be pronounced by a judge
sitting upon the trial of an election petition to have been
guilty of an offence of this nature upon less evidence than
would be required upon the trial of an indictment for the
same offence before a jurj', is a proposition which neithei-
in law or justice or common sense can, in my opinion, be
entertained.

That a judge without a jury should be authorized to tiT
a charge of an offence of this nature is a sufficiently grave
departure from the ordiiiar}- rule that no one can be con-
victed of a criminal offence, especially one so seriously
affecting his civil rights and liberty, except by a jury ; we
cannot, how^ever, extend b}' construction the penal charac-
ter of the act so as to hold that it justifies an adjudication
of guilt unless it be established by as complete and
sufficient evidence as would be required on a trial before
A jury.

Now as to the evidence adduced in support of the
charge. Nixon himself was called upon behalf of the
petitioner and also a Mr. Parker, who acted as scrutineer
for the candidate in whose interest the petition was filed,
at the polling place where Nixon voted. The material
evidence given by him and by Parker on his cross-exami-
nation which, where it differs from that as taken down
upon his examination in chief, appears to me to be more
reliable, in short substance is, that when Nixon came
forward to get his ballot paper Mr. Parker said to him
that he required him to be sworn, upon which Nixon
turned towards Parker and said to him, " what is your
objection to my voting, Mr. Parker, I have been here
several times and you never questioned it before ?" To
which Parker replied that he did not discuss voters'
^qualifications thei'c, and turning to the returning-officer
said, " I want him sworn ;" at this point Harrison inter-
vened and said, "your vote is perfectly good, Tom." Nixon
swears that all that Harrison said to him was, — your vote
is a good one or perfectly good, he repeated several times
that this was all the insisting he did — all that he said or

TiALDlMANL>.

505

at least that he Nixon heard — that otherwise Harrison
never spoke to him upon the subject of his vote either
then or previously — that he, Nixon, had never heard that
his right to vote was doubted, and that he had not any
expectation that his vote would be objected to or that he
would be required to be sworn.

Parker admits that he did not state what was his objec-
tion to Nixon's voting although asked by Nixon what it
was, and that he knew that since the death of Nixon's
father (which occurred in April, 188G, while the election
took place in Nov., 1887), he Nixon was the owner of the
property in respect of which he was upon the voters' list
vvith the description added of farmer's son, and ui)on which
he had resided all his life ; he says, however, that when
Harrison said to Nixon that the vote of the latter was
perfectly good, he added, " take the oath, Tom, 1 will be
responsible." Nixon swears that if Harrison .said this lie
did not hear it, and he denies that to his knowledge
Harrison did make use of this expression. U|)on thin
conti'adiction, if it be material whether in point of fact
Harrison did or not make use of the.se words, they cannot,
upon a charge of this nature, be regarded as proved to have
been used by him. If the words were used, as Nixon
sv/ears that he never heard them, they couhl not have
operated upon his mind to induce him to take the oath
he might be required to take or did take; and so, unless
the substance of the offence charged is to be wholly
disregarded, because it is alleged to have been committed
at an election, and the accused is to be convicted on a
mere technicality, it becomes immaterial whether the
words were used or not, if the person to whom they are
alleged to have been addressed by way of inducement to
get hiru to take a false oath never heard them. Hereupon
Parker callc I upon the deputy returning-officer to admin-
ister the oath '"T" ; whether Nixon heard Parker say to
the returning-orticer that the oath *' T " was the one he
should administer, or that Nixun had any knowledge of
the matters contained in such oath there is no evidence.

56G

DOMINION ELECTION.

f . ■.

n/-r ^

No reference had been made to the contents of the oath
or as to what Nixon would have to swear — an oath was
administered which Parker says was the oath "T," and
now wc see exposed the jofist of the charge and the point
of objection to Nixon's vote becomes developed ; an objec-
tion which does not appear to have been in the mind of
anv one but Mr. Parker, at the election, and which he
.studiouslj'" suppressed.

Nixon in his father's lifetime was registered on the
voters' list as a voter in the character of farmer's son. His
father died in April, 1886, his mother had died eight or nine
years previously. Upon his father's death Nixon became
owner of the property upon which his father in his lifetime
resided and upon which Nixon himself had resided all his
life, and was still residing at the time of the election in
November, 1887. Nixon swears that at the time of the
election, in November, 1887, he did not know in what
character he was entered upon the voters' list then in use,
namely, whether as farmer's son or as owner. We have
seen that the point was not alluded to at the election.
Now the oath, T., assuming it to have been, as Mr. Parker
swears it was, the oath administered, in its last paragraph
contains these words — " with my father " which if they
had been omitted when the oath was being administered
every syllable "a the oath could have been sworn by
Nixon with the most perfect truth, and laying out of con-
sideration all questions as to whether the deputy returning-
officer would have been justified or authorized in omitting
them if he had know i all the facts of the case, the oath
with these words left out would have been in conformity
with the circumstances and facts of the case as thev in
truth existed, and if tiiey had not been omitted but Nixon
had never heard them he never could be convicted of hav-
ing taken a false oath, such offence involving, as of neces-
sity it must, knowledge of the falsity and a deliberate
intention to take the oath with such knowledge; so that
upon this ground alone the charge against Harrison must
fail. Upon this point Nixon in substance swears that to

HALDIMAXD.

5C7

•M

the oath
oath was
, "T," and
the point

an objec-
B mind of

which he

ed on the
3 son. His
a\\t or nine
:on became
his lifetime
ded all his
election in
lime of the
iw in what
then in use,
We have
he election.
Mr. Parker
it paragraph
lich if they
idministered
n sworn by
out of con-
by veturning-
in omitting
vse, the oath
X conformity
;e as they in
rl but Nixon
icted of hav-
as of neces-
a deliberate
ido-e; so that
arrison must
ivears that to

his knowledge and belief these words " with my fnther " or
the words — "I am residing with my father" were not in
the oath that he took — that he has no remembrance of
hearing anything of the kind.

With the greatest deference I must express my dissent
from the doctrine that upon a charge of the grave nature
of the misdemeanour chaigetl here there is to be any
presumption that the officer who presided at the election
<lid or did not administer the «ight oath or did or did not
omit any part of it. The charge is one of a grave misde-
meanour charged against the agent and upon such a charge
nothing is, in my opinion, to be presumed. The maxim
omnia priv^iummtar rife <',s«e acta does not, in my
opinion, apply to supply an\' defect in evidence adduced
for the purpose of establishing the commission of the
misdemeanour. Everything must be clearly proved winch
constitutes the perfection of the offence, and neither the
agent nor the candidate is called upon to prove anything.
I can see no reason whatever in principle why this offence
should be established on less conclusive evidence than on
an indictment, and any imperfection or insufficiency in
the evidence entires to the benefit of the person uccusotl
who must be acquitted of the charge if not conclusive!}'
proved. But independently of this and confining myself
to the charge of corrupt inducement made by Harrison to
procure Nixon to take the oath, I confess that I am unable
to perceive upon what possible foundation that charge
could in reason ani' common sense be maintained. There
was no evidence offered tluit Harrison had any knowledge
of the true facts of the case. And assuming liim to have
known them as they now a})pear to have been, but which
do not seem to have been alluded to by any one at the
election, it seems to me a perversion of langujige to attri-
bute the epithet " corruptly " to the opinion given by
Harrison that Nixon's vote was perfectly good, even if
that opinion had been supplemented by the expression,
" take the oath Tom, etc., etc.," as testified by Mr. Parker.
This gentleman appears to have been of opinion, that

^i 'I

5G8

DOMINION ELECTION.

i'V.

although Nixon had a good vote while his father lived he
ceased to have a vote when, by his father's death, he
l>ccauie alwolute owner of the property upon which, in hi.-i
f.ith m'm lifetime, they had both resided. Harrison may, I
think, be exeused if he entertained, although it might be
erroneously, a different opinion.

The point, indeed, is one upon which lawyers, much less
laymen, might dill'er without Justly subjecting those who
might be of opinion that Nixon had a good vote, under the
circumstances, to the imputation of coiruption in expres-
sing that opinion. In his father's lifetime he was upon
the voters' list ms a voter in the character of a fanner's
son. By the Dominion Franchise Act he could have been
upon the list as a farmer's son only in the evont of his not
being otherwise (pialified to vote in the electoral district
ilk which liis father's faiin is i^ittiate. 49 Vic. ch. 5 se . Ji
ss. 7 The father died on the 4th April, 188G, and
although upon his death the sun became absolute owner
!ind sole occupant of the propert}' upon which he had, in
Ills father's lifetime, resiled with his father, as the assess-
ment takes place betweei, the iJth February and the 30th
April, the father may have been assessed for the propert}*
in that year before his death, so that the revising officer
uiay have had no ojjportunity of correcting the voters' list
in that year ; but in 1887 the son was the sole occupant of
the |)roperty and the only person who was assessable for
it, and as owner and occupant. He had a right therefore
to remain on the voters' list in 1887, though not as a
farmer's son. His name could not have been remcjVv ••
from the list. He was qualified to be upon it as owner « *
the propeity, he was in point of fact on it, though ,)0',
described as owner, but he could not have been removed
from the list, although the character in which he was
entitled that his name should remain there was chaniied.
Provision is made for such a case by section 16 of the
Electoral Franchise Act, which enacts : —

The revising officer shall not remove the uaine of any person on the list
of voters, from such list, uu the ground that the quuliGcatiou of such

HALDIMAND.

569

ed he
ith, he
in hii^
may, 1
Tht be

ich less
se who
der the
expres-
is upon
tavuier's
ve been
; his not
district
5 se . 5i
\SG, and
,e owner
i had, in
e assess-
the 30th
propert}'
<r officei'
)ters' list
;u[)ant of
jable for
;herefore

lot as a

IreuioVvV'

)\vnfcr « *
lugh U.0'.
I removed
he was
I changed,
of the

I on the list
sn of auch

ptinon ia incorructly entered thereon, if it appears that auch person is
vntitle.l to )>e regUteretl on the list of voters as puasessed of any of the
qoalifications set forth in the Act, but the revising officer shall retain the
luune of such person on ti>v. list and correct the same accordingly.

At the time of the election in Nov., 1 887, Nixon's right
then was to be on the voters' list in the character of owner,
and if not on the list in that character that was the fault
of the officials upon whom were imposed by the law the
iluties necessary to be discharged in order to ensure that
the voters' list should be correct. Now by the Act 49 Vic.
ch. 8, sec, 41 — all persons whose names are registered on
the list of voters in force on the day of the polling at any
election shall bo entitled to vote at such election. TJjtj
Act does not say that he shall be entitled to vote oidy ia
the character in which he is described, and it may be
erroneously described, on the list. By section 45 of this,
.same Act, if his name is on the list, he is entitled to demand
and receive a ballot paper, and the only restraint upon
the right which is imposed by the statute is that if re-
quired he shall take the oath of qualification in the form
S. or in the forms T. U. V. or W, in the first schedule of
the Act mentioned, as the circumatancea of the case may
require.

Now, under the circumstances of Nixon's case, without
expressing any opinion as to whether or not Nixon's vote
was in strict law a perfectly good one, or whether or not
the peculiar circumstances of the case were such as to-
entitle him to demand and receive his ballot paper upon
taking the oath appropriate to be adndnisteied to an
ov/ner of property all that it is necessary to say, and upon
this I express a very decided opinion, is that laymen
certainly, and I think lawyers also, might without any
corrupt intent whatever and indeed veiy conscientiously
entei'tain and express the opinion that the fault of the
officials to discharge their duty had not disfranchised
Nixon, and that as he was qualified to be on the list, and
was in fact upon it, although erroneously described, hi&
vote was a good vote, and as owner, that being tha
73— VOL. I. E.G.

;;k

l!i

\m\

570

DOMINION ELECTION.

■character which should have been annexed to his name
upon the list, and under the peculiar circumstances of the
case the appropriate oath to have been aduiinistered to
him would have been the oath which should have been
administered to an owner of property ; and, assuming
Harrison to have known all the circumstances of the case,
the evidence as to what he said at the polling booth is
perfectly consistent with his having entertained tliis
opinion, and with this being all he intended to convey.
Hereafter lawyers who may be interested in an election,
and who I presume cannot claim any exemption from
liability upon a charge of this nature which a layman
cannot have, will need to be very careful indeed that in
giving advice in an election as to the right of jmy person
to vote and as to the form of oath he may be required in
law to take, he gives no opinion, however conscientious,
■whicli a court can pronounce to be erroneous, for if the
court should differ from him (which unfortunately some-
times happens) he would become guilty of the misdemean-
our of which Harrison has b^icn pronounced to have been
guilty and for which the respondent is made to suffer.

The case of Dougherty differs from that of Nixon in
this, that in Dougherty's case the objection to his vote was
stated and fully discussed at the polls. The questions
raised were : — 1st. One of law, namely, whether the nature
of his residence upon his father's property which he
described was such a residence as came within the meaning;
of the Act ? And 2nd. Whether Dougherty could con-
scientiously take the oath that he was residing with his
father ?

Now, the only evidence of the charge of corrupt induce-
ment to Dougherty to take a false oath made against Allen
is that given by Dougherty himself, who said that he had
several times voted upon the same qualification without ob-
jection; that previously to the election in November he had
heard his right to vote questioned upon the point raised; that
he had given the subject the fullest consideration and had
come to the conclusion that his vote was a good one and

HALDIMAND.

571

I name

of the
iretl to
/e been
jsuming
he case,
booth is
led this

convey,
election,
ion from
t lavn»»»n
i that in
\y person
•paired in
jcientious,
for if tlie
ielj'^ some-
lisdemeau-
have been
suffer.

Nixon in

s vote was
questions

the nature

which he

he meaning

could con-
with his

upt induce-
;ainst Allen
,hathe had
without ob-
mber he had
raised; that
ion and had
)od one and

that he could conscientiously take the prescribed oath. He
tilso said that at the poll the returning-officer had expressed
the same opinion, and had added that at a recent trial of
an election petition which had taken place in relation to
an election in the same electoral district before the
Chancellor, that learned judge had expressed the opinion
that precisely such residence as that of Dougherty was
sufficient, and that a person upon such evidence could well
take the oath. Allen, who is now accused of having
■corruptly induced Dougherty to take a false oath, also
expressed his opinion to be that Dougherty could con-
scientiously take the oath, and this expression of opinion
is the sole foundation for the charge made against Allen.

All that appears to me to be necessary to say upon this
charge in addition to what I have said in Nixon's case, ns
to the nature of the offence pointed at in section 90 of the
Act 49 Vic. ch. 8 is that the expression of such opinion by
Allen does not appear to me to constitute any inducement
made by Allen much less " corruptly " mode, in order to
get Dougherty to take a false oath.

And as to both of these charges, I am of opinion that if
the learned judge who tried that election petition had upon
the evidence adduced adjudged either Harrison or Allen to
have been guilty of the offence charged against them
respectively he would have greatly erred.

Appeal allowed ivith coats.

Solicitor for appellants: A.K. Goodman.
Solicitors for respondent: McCarthy, Osier, Hoshin <fe
<Creelman.

572

DOMINION ELECTION.

HALDIMAND*

DOMINION ELECTION.

Before Sir W. J. Ritchie, C. J., and Strong, Tasche-

REAU, GWYNNE AND PATTERSON, JJ.

Charles Wesley Colter (Respondent in Court helow;

and
William Glenn (Petitioner), Respomleut.

ON APPEAL FROM THE JUDGMENT OF MR. JUSTfCL

FALCONBRIDdE, SITTING FOR THE TRIAL OF THE

HALDIMAND CONTROVERTED ELECTION.

Controverted election — Bribery by agetU — Proof of agency — Proof by conduct.

An election petition charged that H., an agent of the candidate wliodc
election was attacked, curriiptly oiTered and p:iid $5 to induce a voter U>
refrain from voting. The evidence shewed that H. was in the habit of
assisting this particular voter, and that being told by the voter that he
contemplated going away from home on a visit a few days before the
election, and being away on election day, H. promised him $5 towards
paying his expenses. Hiiortly after the voter went to the house of H.
to borrow a coat for his journey, and H.'s brother gave him §5. He
went away and was absent on election day : —

Held, that the ofi'er and payment of the $5 formed one transaction and
constituted a corrupt practice under the Election Act.

At the election in question there was no formal organization of the party
aupi>orting the appellant. 1'he County Reform Association had been
disbanded and the minutes, regularly kept since 1882, destroyed, as
were the rough minutes of every meeting of a convention of the party
held since that date. In lieu of local committees vice-presidents were
appointed for the respective townships, and on the approach of a contest
tne vice-presidents called a meeting of the county association, composed

* Reprinted from the Supreme Court Reports.

HALDIMAND.

573

of all reformera in the riding, to go over the lists and do all tho
iieceiiuiry work of the election.

The evidence of H.'s agency relied ofi by the petitioner wa«, that he had
always l)een a reformer, had iHJtn active for two elections, had attended
• me important committee meeting and Inscn recognized by the vice-
president of the township as an active suppoi-ter of the appellant, and
that he acted as scrutineer at the polls in the election in question.
Tl>c trial Judge hiM tluit all these elements ombined, in view of the
state of affairs reganling organization, were suffacl^nt to constitute H.
an atrent of the appellant. On appeal to tho Supreme '^ourc of Canada :—

Jlild, Ritchie, C. J., dissenting, and Tascheroau, J., hi-^itating, that the
circumstances proved justified the trial Judge in holding the agency of
H. established.

Appeal from the judgment of Mr. Justice Falcon-
itRIDGR on the trial of an election petition against the
return of the appellant as a member of the House of
Commons on an election in the county of Haldiraand,
whereby the appellant was unseated for bribery by an
agent.

The election in question was held on January 30th, 1889,
and resulted in the return of the appellant. A petition
"was filed against such return which was tried before Mr.
-Justice Falconbridge in September, 1889, with the result
that the appellant was unseated for bribery committed by
one Haslett, his agent. He appealed to the Supreme
Court of Canada from such decision.

The appeal was limited to two charges of bribery,
numbered 8 and 82 in the petition. It is only necessary
refer to No. 82, which was as follows :

" That on or about the day of the election in question,
at the township of Walpole, James Haslett, of Walpole,
an agent of the respondent, offered and promised to pay,
and did pay to Heniy Bridges, of the same place, a voter
in the said electoral district, the sum of $5 to induce him,
the said Bridges, to refrain from voting in the election at
question or to vote thereat for the said I'espondent."

The respondent filed a cross-appeal submitting the other
charges in the petition which were not passed upon by the
trial Judge as grounds for retaining the judgment appealed
from.

The following were the circumstances of the act of
bribery charged in the petition as above set out : The

574

DOMINION EL ACTION.

h-i''l

voter, Bridges, was a consorvativo and a neighbour of the-
nllcged briber Haslctt who was in the habit of assisting
him occasionally with loans and gifts of money and inother
ways. A few days before the election he wa^ at Haslett's
house, having gone there to borrow a flail, and in convei-sa-
tion with Haslett told him that ho contempUited going t<^
Petrolia on a visit for two or three weeks. Haslett then
said that if $5 would be any use to him he could have it.
In giving evidence at the trial, Bridges swore that he
demurred to taking the money as it might make trouble
aibout the election. This Haslett denied. Shortly after
this Bridges again went to Haslett's house to borrow a coat
for his journey to Petrolia and while there a younger
brother of Haslett gave him $5. He went to Petrolia and
was away on polling day. The trial Judge found that
this payment to Bridges was a corrupt act on the part of
Haslett.

To show that Haslett was an agent of the reform candi-
date at this election the petitioner produced evidence of
his having bet.i active on behalf of the same candidate
at a former election in Haldimand ; of his having attended
a committee meeting during the election in question in
this case and gone over the list of voters; and of his
acting as scrutineer at this present election. It was also
shown that there was no organization of the reform party
in connection with this contest, but that the candidate
had addressed a mass meeting of the electors, and stated
that he wished them all to do their best to secure hi*
return. This, it was contended, made every reformer in
the riding an agent under the Act.

The evidence relating to the conduct of Haslett as given-
by himself at the trial is as follows :

Q. Your politics, I believe, are pretty well pronounced, are they not T
A. I do not know as they are.

Q. Have you any doubt about your own politics ? A. Oh, I have no
doubt about it.

Q. Well, why do you cast doubt upon it ? A. Well, I never took any
very active part in politics.

Q. But which side are you on ? A. I am a Reformer.

•^

IIALDIMAND.

575

of the
usiing
I other
islott's
ivoi'sa-
)ing U>
bt then
lave it.
hat he
trouble
y after
V a coat
rounger
olia and
nd that
part of

u candi-
dence of
mdidate
ittended
istion in
I of h'lH
was also
•m party
andidate
id stated
icure his
brmer in

as given

! they not T
, I have no-
;rtook any

if. Always hcen on the Reform iilile ? A. Yen.

Q. I>iil yon nay yoii never took any active part? A. Well, I did not
until these ..ist two elections.

if. Tliese but two elections you have taken an active part ? A. Well,
I did not do but very little.

Q. Von contrast these two with the former election!. What have ynu
lieen doin({ nt these two last elections more than you did at the former
elections T A. I do not know that I did anything particularly, any more
than go out to vote.

Q. liut didn't you go out to vote at the former elections ? A. Yes.

Q. Well, you did take an active part in the last two elections? A.
Very little.

l). Whnt do you mean by taking an active part? A. <}oing out and
gutting in voters.

(i. You then went into the meeting ? A. Yes.

Q. And were there how long ? A. Perhaps an hour or so.

Q. While the talk was going on ulwut the list ? A. Yes.

(j. Did you take any part in it ? A. Nothing more than looking at the
lint and Hceing who were the outHido men.

Q. Discussing Mhether they would come and so on 1 A. Yea.

(J>. Did you do any of that? A. No.

Q. Well, what did you *lo these lust two elections? A. Well, this last
election I wuH the agent for Mr. Colter.

He explains in his cross-examination that this was as an
f\[lQnt appointed to attend as a scrutineer at the poll, and
«t;ain ho says : " I am not positive who asked me to act."

Q. Were you appointed at a meeting ? A, No, I was not.

Q. Well, if yon were not appointed at a meeting you can tell me who
as<ked you to act? Well, I think may be it was Mr. Noble.

(J. And who was Mr. Noble? A. A tador.

Q. Mr. Noble is the tailor of Jarvis ? A. One of the tailors.

Q, Wh:it part does Mr. Noble take in politics? A. Well, he was not
in iiur pnllinir division this last election.

Q. James Noble, do yon mean ? A. Yes.

Q. He is the vice-president, is he? A. Well, I think he is for the
township.

Q. Who is the chafnnan for the polling division ? A. I do not know
if tliere is one.

Q. You have been showing some interest in this election ? A. Well,
I do not know as I took any great interst in it.

Q. Did you canvass any person ? A. I did not.

Q. Did you attend any political meetings ? A. Yes, I attended political
meetings at Jarvis.

Q. How many ? A. I was at Mr. Colter's and Dr. Montague's.

Q. Anybody else's ? A. No, that is all there were.

Q. Did you attend any private meetings ? A. No.

-57G

DOMINION ELECTION.

ill

Q. You know what a committee meeting is, do you? A. Yes.

•Q. Were you ever at a committee meeting? A. I have been at them.

Q. Where ? A. In Jarvis.

Q. And when ? A. Well there was a committee meetinj; before the
•election.

Q. Where was that held ? A. I think it was held in the lioteL

Q. Whose hotel ? A. Hanrahan's.

Q. And you attended that ? A. Yes.

Q. Did you attend only one meeting? A. I think that is all.

Q. How long M'as that before the election? A. Probably a oouplo of
weeks.

Q. Who gave you notice to attend that meeting ? A. Well, there was
nobody gave notice.

Q. How did you know about it? A. Well, we just met one another on
the street.

Q. Who was it told you ? A.I could not say.

Q. Was it a day meeting or a night meeting ? A. Night.

Q. What was done at that meeting ? A. Just to look up the outside
vote, arid see about getting it in.

Q. ^V^hat else ? What about the doubtful vote at home ? A. There
was uothing particular done about tliat.

Q. You went over the voters' list, I suppose ? A. Yes.

Q. And were doubtful men assigned to different parties to be seen
after? A. No.

Q. For what purpose then, did you go over tho list ? A. Just to kind
of see, to have an idea, how many men were outside the county.

Q. That was the particular business ? A. Yes.

Q. And how long did the meeting last ? A. Perhaps an hour.

Q. And who was the chairman ? A. I do not think tiiere was a
chairman.

Q. Who was the secretary ? A. There was no secretary.

Q. Who had the voters' list ? A. I think I had the voters' list.

Q. Who gave you the voters' list ? You were the secretary ? A. I
£uess not.

On his cross-examination he says :

Q. Yr I told Mr. McCarthy you Ii.id been appointed Mr. Colter's agent
in this last election ? A. Yes.

Q. In what way, agent for what? A. To act as scrutineer at the
polling division of Jarvis.

Q. Is that all you mean ? A. Yes.

Q. You mean the appointment in writing, I suppose. A. No, just to
check the votes as they came in.

Q. Did you get a written appointment ? Or do you remember ? A. I
<lo not remember.

Q. Did you see Mr. Colter personally about it ? A. No.

Q. Did you see him at all during the cami)aign, except at the pulilie
meetings ? A. No.

HALDIMAND.

577

Q. Have any private talk with him at all ? A. Never had a private
talk with Mr. Colter.

Q. And you were iisked by somebody or other to be scrutineer? A.
Ye8.

Q. You had once been acrntineer before at a previous election ? A.
No, I had been appointed but they got some other man in my place and
I did not act.

Q. At this time yon did act ? A. Yes.

Q. As inside scrutineer ? A. Yes.

Q. Some party asked yo" to act ? A. Yes.

Q. Mr. Noble asked you 1 1 act, and you did act ? A. I am not sure
whetlier it was Mr. Noble or not.

Q. Besides this was there any other work that you did at thij election ?
A. No.

Q. How was it you happened to go to this meeting ? A. I was just told
of it on the street and went.

Q. Then you did not go from your own home intending to go to the
meeting? A. No,

The judgment at the tris)! on the question of Haslett's
agency was as follows : ^

" It remains to conside)' the question of agency. In
dealing with this, regard must be had to the phm adopte<l
by the party supporting Mr. Colter for carrying on the last
campaign. Mr. Parker, Dr. Harrison, and othei- leading
reformers stated with some complacency that having
discovered at the trial of an election petition in the county
in October, 1887, that the co"' ^rvative organization was
superior to theirs they set out to remodel their own system
so as to make it at least equal to that of their opponents.
To this end they at once after said trial destroyed all the
minutes of the county reform association which had been
regularly kept since 1882 ; tliey immediately after every
meeting of ». convention and association destroyed the rough
minutes of that meeting; and they substituted for the ap-
'pointment of local committees vice-presidents (generallyone
for each township) which vice-presidents were named by the
'townships at meetings of the county association. There
"was no shibboleth or test for membershiji of the association,
save only sympathizing with the reform cause. The
association was .supposed to comprehend in its ranks eveiy
74 — VOL. I. E.C.

578

DOMINION ELECTION.

5> '

reformer within the limits. Conventions are held by the-
township associations sending delegates."

" When a contest is approaching the vice-president or
eliairraan of the township is instructed to call a meeting
of the township association, to go over the lists, to-
appoint agents at the polls, bring out voters, look after
altsentees, etc., and the work is carried on by the aid of
reformers who choose to assist."

" Shortly what is meant is this : —

" (1.) As to the proceedings of the party as an organiza-
tion there are to be no records except such as repose in
frail human memory. As Mr. Parker puts it, * so that no
information could be got out of me except what I could
remember.' "

" (2.) The abolition of local committees was apparently
intended to serve a double purpose, viz., to lessen the
apparent number of persons for whose acts the candidate
might be responsible and to render it more difficult to
ascertain afterwards who those persons were."

" It may be that in their avowed desire to improve on
the tactics of their opponents, the fiiends of the respondent
have increased instead of diminishing the number of his-
agents. Certain it is that the law of agency in election
matters is so elastic that the Coiirts will be astute to meet
and cope with the ever-increasing ingenuity of some of
those who manage election contests."

" The evidence of agency relied on by the petitioner
is that Haslett has always been a reformer, has been active
for two elections, that he was a scrutineer at the polls, and
that he attended one important committee meeting. No
one of these elements is perhaps sufficient by itself to
constitute Haslett an agent, but all taken together, with
the recognition conferred on him by his local chief, Mr.
Noble, in view of the state of affairs as regards organization
which I have above alluded to, constrain me to hold him
to have been agent of the candidate."

" I therefore find that James Haslett, an agent of the
respondent, committed the corrupt practice charged, without
the knowledge or consent of the respondent."

HALDIMAND.

57»

December 13th aud 14tb, 1889. Ayles^vorth, for the-
appellant. The act of Haslett was not a corrupt act
under the circumstances proved : Somerville v. Lajiammey
2 Can. S. C. R. 216 ; Windsor Election Case, 31 L. T. N. S.
135 ; Kingston Election Case, Hodgins' El. Cas. G2o. A
loan to induce a voter to be absent on election day has
been held not a corrupt act : East Elgin Election Case,
1 Ont. EI. Cas. 475.

The agency of Haslett was not proved ; Berthier Election
Case, 9 Can. S. C. R. 102.

McCarthy, Q,. C, for the respondent, cited the judgment
of Mr. Justice Patterson in Musloha and Parry Sound
Case, 1 Ont. El. Cas. 203 ; West Simcoe Case, 1 Ont. El.
159-161 ; Leigh Sz Le Marchant, 4 Ed. p. 75 : Mattinson &;
MacKaskie, P. 108 ; Limerick Case, 1 O'M. & H. 260 ;
Waterford Case, 2 O'M. & H. 2.

January 22nd, 1890. Sir W. J. Ritchie, C. J.— Mr.
Colter, the appellant, was nominated a candidate at a
meeting of delegates selected from different parts of the
riding of persons holding reform principles, and accepted
the nomination. The regular nomination of candidates
took place on the 23rd of Januar}', 1889 ; the polling was
on the 30th of January, 1889 ; the trial of this petition was
on the 3rd and 10th of September, 1889.

Two charges of corrupt practices by agents were
considered by the learned Judge who tried the petition
and found to have been established. The first, which
we have now to deal with, was alleged to have been by
James Haslett to the effect that he offered and promised
to pa}' one Henry Bridges $5 to induce him to refrain
from voting at the said election. I think the petitioner
has established that such an offer and payment were
made ; that the offer and the payment formed in fact
one transaction though the offer and the payment were
made at different times ; and that a corrupt practice
was thereby committed. The only question then that
remains to be determined is as to the agency of Haslett.

580

DOMINION ELECTION.

This agency should be established beyond all reasonable
iloubt to the satisfaction of the learned Judge and the
burthen of the proof of agency was, ir> my opinion,
clearly on the petitioner. As to the necessity of making
a case out be3^ond all reasonable doubt ample authority
is to be found.

In Tlie Weatmhifttei' Election Case, 1 O'M. «fe H. 95, Mr.
Baron Martin says : —

But I think I am justified, when I am about to apply such a law, in
requiring to be satisfied beyond all reasonable doubt that the act of
bribery was done, and that imless the proof is strong and cogent — I
should say very strong and very cogent — it ought not to afiect the seat of
an honest and well-intentioned man by the act of a third person.

In The Taunton Case, 2 O'M. & H. 74, Mr. Justice
■Grove says : —

To use the language of that eminent Judge, the late Mr. Justice Willes,
■• No amount of evidence ought to induce a judicial tribunal to act upon
mere suspicion or to im.agine the existence of evidence which might have
been given by the petitioner, but which he has not thought it to his interest
actually to bring forward, and to act upon that evidence and not upon
the evidence which really has been brought forward. The second
principle, which is more particularly appliciible to circumstantial evidence,
is this, that the circumstances to establish the affirniative of a proposition,
where circumstantial evidence is relied upon, must be all, such of them as
:are believed, circumstances consistent with the aftirmative, and that there
must be some one or more circumstances believed by the tribunal, if you
aie dealing with a criminal case, inconsistent with any reasonable theory
of innocence, and when you are dealing with a civil case (otherwise
«xpressed though probably the result is for the most part the same),
proving the probability of the afiirmative to be so much stronger than
that of the negative that a reasonable mind would adopt the affirmative
in preference to the negative.'

*♦»•*#**

In The Sligo Case, 1 O'M. & H. 301, Mr. Justice Keogh,
as to the law of agency, said : —

An observation was made by the counsel for the respondent that the
evidence ought to be strong — very strong, clear, and conclusive — of
agency before a judge allows himself to attach the penalties of the
Corrupt Practices Prevention Act, 1854, to any individual. I agree to
that.

As to the nature of the evidence necessary to establish
a charge of briber}', Judge O'Brien says in The London-
derry Case, 1 O'M.fr H. 279.

HALDIMAND.

581

nablo
i the
linion,
aking
hiority

»5, Mr.

law, in
e act of
ogent — T
le seat of

Justice

;e Willes,
act upon
ight have
is interest
not upon
le second
evidence,
oposition,
of them as
that there
lal, if you
Ae theory
(otherwise
he same),
inger than
vliirmative

i Keogh,

it that the
elusive — of
ties of the
agree to

establish
London-

The charge of bribery, whether by a candidate or his agent, it* one
which should be established by clear and satisfactory evidence. Tlie
consequences resulting from such a charge being established arc very
serious. In the first place it avoids the election, and in the recent
trial of the Warrington election petition, Baron Martin is reported to-
have said that he agreed witli what had been said by Mr. Justice AN'illes-
at Lichfield, that before a Judge upset an election, he ought to be satisfied
beyond all doubt that the election was altogether void.

Accepting then these cases as truly expounding the law
as to the amount of evidence required to sustain chaiges
ol" bribery and agency, let us consider how far the case ha*
been made out beyond all reasonable doubt.

The learned Judge after stating the plan adopted by
the party : upporting Mr. Colter for carrying on the cam-
paign, says (see ante p. 578) :

The learned Judge thus says it is by combining the
three consideiations, viz. : the organization of the associa-
tion, the attendance at the appellant's meeting, and the
appointment by the appellant as scrutineer that the
agency is made out, and that neither alone would establish
it.

Now, as to Haslett's having acted as scrutineer, whether
appointed to that position by the appellant, or acting as
such at the request of Noble, a vice-president for the
township of Walpole, or as one of the electors under section
36 of the Election Act, R. S. C. ch. 8, by no means clearly
appears, but assuming that he was duly appointed to and
acted in that capacity at the poll in the interests of the
appellant, did this constitute uim an agent of the appellant
generally and make the appellant liable for his acts com-
mitted before such appointment ? I think not, and I think
the learned Judge should not have considered that appoint-
ment as an element in determining the question of agency.
The appointment of such an agent as provided for by
R. S. C. eh. 8, sees. 36 and 38, has clearly reference only to
the pioceedings on election day, and, theiefore, the whole
question of agency must turn on the fact of Hasiett having
attended a so-called committee meeting shoi tly before this
election, probably a couple of weeks, and of being a persoa

582

DOMINION ELECTION.

ls{'

professing reform principles. Would these two establish
the agency ? As I read the judgment they would not, for
the learned Judge says, " It is the combination of the three
that does it not the combination of any two." But I think
the question of being a reformer must be also eliminated.
Colter did not accept the nomination directly from the
reformers of Haldimand, for it was abundantly clear that
those who nominated Colter were not the body of the
reformers of the Riding but a select body of delegates,
of whom Haslett was not one, who when appointed
were no doubt from, but entirely independent of, the
whole body of persons holding the views of the refoi'mers.
Having accepted such nomination I cannot think he
thereby made all persons in the constituency profes-
sing reform principles his agents. In this case it is not
necessary to enquire how far or to what extent, if any,
be made the members of that convention his agents;
it is for the purposes of this case sufficient to say that
he did not, apart from them, make all or any of the
persons professing reform principles his agents unless
he or his agents gave them the authority to act for
him or recognized their right to do so by adopting
their acts. This leaves then only the attendance at the
meeting which the learned Judge admits would not
alone be sufficient to establish the agency. Had he not
attended this meeting I can see no pretence whatever
for the contention that he was an agent of Mr. Colter.
It does not appear that this meeting was held at the
instance or even with the knowledge of the candidates,
or was called by or held at the instance of any person
having the charge or management of the election or in
any way authorized to call or hold it.

There was no evidence that Haslett canvassed ; on
the contrary he distinctly swears that he did not ; nor is
there any evidence that he did any other act directly
or indirectly touching the election save and except
attending the meeting in question, of which he swears
he had only accidentally heard, and going through the

HALDIMAND.

583

3(1; on
nor is

lirectly
except
swears

igh. the

list in order to ascertain who the absent voters were.
This is the account he gives of the meetinfj and he is
the only witness that speaks of it. (His Lordship here
read the evidence of Haslett, (ante p. 570.)

Haslett dc i not appear to have been in any way
entrusted with any duty whatever of managing or
influencing the election, or procuring Mr. Colter's return,
and he does not appear ever to have spoken to Mr. Colter ;
in fact he says he never spoke to him. There is not a
tittle of evidence that Colter by any act or deed in an}'
way authorized Haslett to act for hiui or recognized him
as his agent directly or indirectly, or ratified or adopted
any of his acts. Haslett appears to have been simph' a
volunteer, not selected by Colter or any person having any
«,uthority in connection with the miinagenient and conduct
of the election, nor does he appear to have been in any
way in the counsels of those conducting the election.

I think the cases clearly establish that there must be
-an appointment as agent or an acting in the business <»f
the election with the knowledge and consent of the candi-
date or of some person duly authorized to give him power
to act in the election or some adoption or ratification of
his acts by the candidate or hi.s duly authorized agent, or
^uch an acting in the business of the election with the
knowledge of the candidate or his agent from which
authority to act can be inferred, all of which appear to me
±0 be entirely wanting in this case.

The Wedminster Case, 1 O'M. & H. 92, Mr. Baron
Martin :

I have said, and the other Judges have said, that bribing by one of his
-commiltee would affect the candidate ; but by a ' coniiuittee ' I meant a
number of persons, comparatively few (of course in a county that extends
over a considerable district it would be larger), who were entrusted by
the candidate with the work of carrying out his election, in whom he put
faith and trust, and who, in fact, were his agents for the purpose of
carrying it out ; but I have never supposed, nor do I believe that either
Mr. Justice Blackburn or Mr. Justice Willes ever considered, that where
a number of people (600 or 700) choose to call themselves ' a committee '
thereupon they become ' agents ' of the candidate for the purpose of
jnaking him responsible for an illegal act done by one of them. I think.

i I

584

DOMINION KLECTION.

it is a conclusion th:it could not be borne out by common sense. The
committee inai) whom I mean, and whom I would hold the respondent tu.
he responsible for, is a committee-man in the ordinary intelligible sense of
the word, that in to say, a perttuu iu wliom faitli is put by the candidate,
and for whose acts therefore he is responsible.

How can it be said in this case that Haslett was such a
committee-man ?

In The Londonderry Case, 1 O'M. & H. 278, Mr. Justice
O'Brien on tlie question of agency, said : —

It is clear (as held in the Windsor Case) that the employment of a man
ns messenger is not sufficient to constitute him an agent. Mr. Justice
Willes in that case, in those accurate terms for which he is remarkable,
said, ' I have stated tiiat authority to canvass — and 1 purposely used
the word authority antl n(jt employment, because I meant the observation
to apply to persons authorized to canvass, whether paid or not for their
services — would, in my opinion, constitute an agent.' I cannot concur in
the opinion that any supporter of a candidate who chooses to ask othera
for their votes and to make speeches in his favour, can force himself upon
the candidate as an agent, or tliat a candidate should be held responsible
for tlio acts of one from wiiom he actually endeavours to disassociate
himself.

In The Taimton Case, 2 O'M. & H. 74, Mr. Justice Grove

says : —

So far as regards the present case, I am of opinion that to establisii
agency for which the candidate would be responsible he must be
proved, by himself or by his authorized agent, to have employed the
persons whose conduct is impugned to act on his behalf, or to have to.
some extent put liimself in their hands, or to have made common cause
with them for the purpose of promoting his election. To what extent
such relation may be sufficient to fix the candidate must, it seems to
me, be a question of degree and evidence to be judged of by the
election petition tribunal. Mere non-interference with persons who,
feeling interested in the success of the candidate, may act in support of
liis canvass, is not sufficient in my judgment, to saddle the candidate
with any unlawful act of theirs of which the tribunal is satisfied he or
his authorized agent is ignorant. It woulil be vain to attempt an
exhaustive definition, and possibly exception may be taken to the
approximate limitation which 1 have endeavoured to express.

In The Windsor Case, 2 O'M. & H. 88, the report .states.
that : —

In the course of the case it was proved that one Pantling wrote a
letter to a voter named Ju jiper, who at the time of the election was.

HALDIMAND.

585

aw.-iy from tlio l»orongh, offering to pay his travelling expenses if he
would come and vote ; and it was admitted that tliin offer, if made l>y
the respondent or an agent of his, would have unseated him. The
only evidence of Paiitling being an agent was tiiat he was a member
of a committee which hail been formed for the purpose of promoting tiie
respondent's election. It was not proved who put him on the com-
mittee, or how he got there, what his duties were, or what he did ;
but his own statement as to this was that he understood that his duties
were to do the best he could, for the respondent.

Mr. Baron Bramwell, in his judgment, said as to this : —

I am invited to believe that in some way or other a man who has
gis'en no description of himself, except that he was on a committee,
was an agent so that his act in writing this letter should unseat the
respondent. It appears to me really impossible to hold that he was an
agent. I think that according to the authorities, and according to the
ijood sense of the matter, he was not an agent. He has given us no
account of how he came to write this letter to .Juniper, he having told
him where he had gone to and having told him to write upon the
occasion of an election. I canuut help agreeing with Mr. Giffard that
if we were to hold this man to be an agent it would make the law of
agency as applicable to candidates positively hateful and ludicrous.

The Stroud Case, 3 O'M. & H. 11, Mr. Baron Pigott:—

It is clear that a person is not to be made an agent of the sitting
member by his merely actmg, that is not enough ; he must act in promo-
tion of the election, and he must have autliority, as there must be
circumstances from which we can infer authority.

Borough of Dtinyannon, 3 O'M, & H. 101. Baroa
Fitzgerald : —

I think it must be made out that a party, before he is chargeable a»
an agent, hus been entrusted in some way or other by the candidate with
some material part of the business of the election which ordinarily is.
performed, or is supposed to be performed, by the candidate himself.
Whether it has any distinct reference to canvassing or anything of that
kind, appears to me to be immaterial, but in some sense or iinother he
must be considered as entrusted by the candidate with the performance
of some part of the business of the election, which properly belongs to
the caudidace himself, though he is unable to perform it in muny cases
without somebody to aid iiim. But that entrusting may be made out
not merely by an express appointment to the perforniuuce of some
material duty iii reference to the election, but may be made out by impli-
cation. The circumstances of each case may differ, but that implicatioa
ordinarily must arise from the knowledge which it appears that the
candidate has of tUe part which the person is taking in the election. If
that part of the business of an election which ordinarily and properly
76— VOL. I. E.C.

•1

^86

DOMINION ELECTION.

Iwlongs to the candidate himself be done to the knowleilgu of the candidato
by soiiiti other pcrsoiiB, it appears to mo that that other person is an agent
of the candidate, and the candidate is responsible for any corrupt act done
by tiiat person.

How can it be said that anything was done by Haslett
was done with the knowledge of Mr. Colter, or that any-
thing was entrusted to Haslett by Colter or by any person
^uthoiized to give Haslett authority to act ?

Can it be said that the agency has been established in
this case beyond all reasonable doubt ? The most that
CJin be said, I think, is that there are suspicious ciicum-
«tances in relation to the bribery, but it is clear that these
suspicions will not do.

Under these circumstances I am of opinion the agency
was not established, and therefore as to this charge the
appeal should be allowed.

SxitONG, J. — For the reasons stated by Mr. Justice
Falcon bridge in giving judgment in the court below
on charge No. 82 (which I adopt in their entirety, and
to which I have nothing to add) I am of opinion that
this appeal should be dismissed with costs.

Taschereau, J. — On that charge 82, " that on or about
the day of election in question James Haslett, an agent
of the respondent (now appellant), offered and promised to
pay and did pay to Henry Brydges, a voter in the same
electoral district, the sum of $5 to induce him, the said
Brydges to refrain from voting at the election in question,
or to vote thereat for the said respondent (now appellant),"
the evidence is conclusive. I need not repeat the facts of
the case. They, it seems to me, show a clear and unmis-
takable act of corrupt practice, and we are, I believe,
unanimous on this point.

I have great doubts, however, on the question of
Haslett's agency. I am free to say that had I presided at
the trial, with the evidence on record, as I read it, I would
have hesitated before finding agency. On the other hand,
I am impressed here with the grave and obvious reasons

HALDIMAND.

587

■which, in casos of this kind more particularly should
restrain an appellate court from interfering with the find-
\u<x of the Judge at the trial. I have not succeeded vet
in bringing my mind to that point of certainty alwnysi
required to reverse. At the same time, I see the difficulty
of finding on this record clear evidence of agency. I
cannot say that I have made up my mind one way or the
other, and if my conclusions were to affect the result of the
judgment I would require more time to consider the
point. But as a majority of the court have come to a final
determination of the matter it would have been utterly
useless for mo to delay the judgment, a course I would not^
it seems to mo, have been justified in taking in a case of this
nature, where public interests require a judgment a*
speedily as possible.

> .

GwYNNK, J. — The questions in this case are purely
questions of fact and I cannot say that the conclusions,
upon them, which have boon arrived at by the learned
Judge who tried the election petition, are clearly er-
roneous. I cannot say that the evidence clearly does
not justify the conclusion that the organization of the
n^form association in the county of Haldimand, as de-
tailed in the evidence, (and of which organization tho
appellant was an approving member, and whose nomina-
tion as a candidate, which was offered to him by a
convention of the association in pursuance of the
scheme of oi'ganization, he accepted, was devised for
the purpose of giving to a candidate brought forward
by a convention of the association the benefits of the
organization as a general committee of the candidate
w'ithout exposing him to the risk attending his nomi-
nation of committce-incn to manajje and conduct the
election for him. Nor can I say that the evidence
clearly does not justify the conclusion that the attend-
ance by James Haslett at the committee meeting held
at Hanrahan's hotel was an act done by him in perfect
accordance with the scheme of organization, and in pur-

588

DOMINION Ef.WTIOX.

suunco of it in tho chanictor of a coiniuittce-iiiau ncUn;^ in
the iatorost of iukI a.s an agent of the camlithito, just as if
he hud boon api)ointod by tho cundiflato himself. If theso
conchisions do not appoar to my mind to be clearly
evronoous I must adhere to the rule laid down by tliis
Court, and acted upon in several cases, and aiiiong these
in the liellechaHse Election Cusc, 't Can. S. C. R. 91, and
decline to interfere and to reverse as beyond all doubt
erroneous the jud^jfrnent of the learned Judge who tried
the case upon mere questions of fact. I entirely concur
in the observation of tho learned Judge, to the efl'ect that
the Courts should be astute to meet and cope with the
evei'-increasing ingenuity of those who manage election
•contests. This timely suggestion thus thrown out appears
to me to be a mild criticism by no nuians inajjproijriate to
the evidence given in this case, as to the origin, the object
and the modus opcravdi of the organization in the county
of Haldimand. The appeal must, in my opinion, be dis-
missed with costs, and the result communicated in the
ordinary way to the Speaker of the House of Commons.

Patterson, J. — The decision that the act of bribery
which constituted charge 82 was committed by Haslett
■was so amply sustained by the reported evidence that,
after hearing from Mr. Aylesworth all that could be
urged against the view taken by the learned Judge
we did not think it necessary to hear Mr. McCarthy on
that subject.

On the question as to Haslctt's agency there is more
to be said on both sides, but no sufficient reason has, in
my judgment been shewn for interfering with the finding
of the learned Judge who presided at the trial and wdio
heard and saw the witnesses.

The rule which will be found a safe one to bear in
mind in approa,ching a question of election agency was
well stated many years ago b}' Mr. Justice Grove in
the Wakefield Case, 2 O'M. & H. 100, in language which
has lost none of its force, and is i^till applicable to contests

HALDIMAN'I).

689

like tho pivsont. Aftov sptakiMg (jf tlie impossibility of
layiiij^ (lovvii such definitions ami liiiiith us si. all meet
every ease lie saiil :

It is therefore well that it should be untlerHtnoil that it rosts witli
the Judgo, n<it misapplying or straining tlie law, hut applying; the prin-
ciples of the law to changed states of facta, to form his Dpinioii iis to
M hetlier there has or has not been what constitutes agency in these
election niattera. It is well that the public i hould know tiiat they can-
not evade tlie ditViculty by merely getting as they suppose, out of the
technical meaning of certuin words and phrases.

Many reported cases illustrate the application of the
^•eneral principles referred to widely- dilforiii^' states of
facts, cases found in the English reports and in those of our
own provinces, as well as some which have been before
this Court. It would not serve any useful purpose to
refer to them in detail, while to do so might perhaps tend
tv suggest the erroneous idea that the doctrine was in
Home way limited to facts like those on which the decisions
turned.

This caution ma}' not be unnecessary, especially when
English cases are referred to. The jirineiplos acted on in
those cases will be found to be wide enough ami elastic
enough to reach every variety of facts, yet under the
system on which elections are conducted in this country
facts may exist, and may be expected to exist, differing
from those found in England much more than the facts
of one English case will ordinarilv differ from those in
another English case. This difference is notably found in
the relation of a candidate to his constituency, the mode of
selecting the candidate, and the machinery for conducting
the contest.

I have had occasion more than once to discuss the
subject of election agency and to act tipon my opinion.
Among other cases there are three reported in the first
volume of the Ontario Election Cases. 1 refer to portions
of the judgments delivered by me in the Presiott Case, 1
Ont. El. Cas. 93-08; the West Simcoe Case, 1 Ont. El. Ca.s.
146-8 ; the MusJcuka Case, 1 Ont. E\. Cas. 202-i> ; repeating

\\i

590

DOMINION ELECTION.

tlie caution that I do so for the enunciation of general
])iinciples, and not because of the facts appearing to be
like those now before us, and referring to the reports in
place of repeating what I then said.

When an election is approaching, the custom in the
county of Haldimand is shown to be for a convention
of the reform association of the county to nominate a
candidate.

Mr. Colter, the present appellant, was nominated for
the election now in question, as he had been on more
than one previous occasion, and he accepted the nomination.

There was, as there oi ixecossity must have been, some
understanding as to the mode in which the contest was
to be carried on. Work had to be done. That is shown
by the evidence, though proof of the fact was hardly needed.
Who was to do the work ? Was the candidate to do it
}>imself personally, or did he rely on the aid of others ?
The understanding on the subject may have been expressed
or have been tacit. These contests were no new thinjrs in
the county. The association had been in operation for a
number of years, and unless a change in the way of doing
things was intended the plan of campaign would not be
likely to be talked over at every nomination. The
'modus operandi was already established and sufficiently
understood.

Mr. Parker, the secretary of the association, gives infor-
mation as to the general character of the work to be done
and the very active part taken by himself, not taken, as
"" ! tells us, by reason of any consultation with Mr. Colter
ci with other leading men, though he had frequent com-
munication with Colter who would enquire how he was
getting on, and so forth. He was asked :

Q. What part waa Mr. Colter taking in the contest ? A. Conducting
his meetings, I suppose ; I never attended any of his meetings.

Q. You were seeing to the organization of the portion of the riding
that you have spoken of ? A. Yes.

Q. Then Mr. Colter, so far as you know, was attending the public
meetings. And was he also looking after the organization ? A. Not
that I know of.

HALDIMAND.

501

Q. Did he say that to you ? A. No. I suppose he would get some
person else to attend to the other portion of the riding, to do the work
I was doing in the part I attended to.

There is abundant evidence, apart from the necessity
of the case, that many persons must have been relied on
by the candidate to do the work of seeing to get voters
out and whatever else an orcranized canvass required. These
persons, whoever they were, must be held to be the agents
of the candidate.

Work had to be done. No means, apart from the organi-
zation of the association, were provided for doing it. The
candidate was not doing it himself.

Mr. Colter was himself an active member of the associa-
tion for six or seven years preceding 1886. Then he was
nominated as candidate and went thx'ough two elections
before the one now in contest under the auspices of the
association. Ho was, therefore, familiar with the way in
which things were done. The organization included local
associations. There was one for the township of Walpole,
which is the scene of charge 82. The associations comprise
all the reformers of the locality, though only a few of them
according to Mx\ Parker, usually take an active part.

Haslett had been active at the last two elections,
though he modestly says he did but very little. That
little, he says, was going out and getting in voters.

He afterwards said that it was only at the last elec-
tion that he took an active part. One thing which he
did was to attend a meeting held one night in the village
where he lives.

Q. How long was that before the election ? A. Probably a couple of
"weeks.

Q. Who gave you notice to attend that meeting ? A. Well, there wait
nobody gave notice.

Q. How did you know about it ? A. Well, we just met one another on
the street.

Q. Who was it told you ? A. I could not say.

Q. Was it a day meeting or a night meeting ? A. Night.

Q. And was that the meeting when the affairs of the polling sub-
-division were arranged ? A. No.

I ;

)S2

DOMINION ELECTION.

i:;l

■m\

Q. What wiis done at that meeting ? A. Just to look up the outside-
vote and seeing about getting it in.

Q. What else ? What about the doubtful vote at home ? A. There
was nothing particular done about thai;.

Q. You went over the voters' list, I suppose ? A. Yes.

Q. And were doubtful men assigned to different parties to be seen after ?;
A. No.

Q. For what purpose, then, did you go over the list ? A. Just to kind
of see ; have an idea how many men were outside the county.

Q. That was the particular business ? A. Yes.

Q. How long did tlie meeting last ? A. Perhaps an hour.

Q. And who was the chairman? A. I do not think there was a
chairman.

Q. Who was the secretary ? A. There was no secretary.

Q. Who had the voters' list ? A. I think I had the voters' list.

Some interest and activity are implied by the inci-
dent of his being provided with the voters' list, which was ot
some use for the purposes of the meeting.

These questions and answers of Haslett have been
pressed on the part of the appellant as proving that, a
meeting having been called by some one, Haslett casu-
ally heard of it, and that his being there was so casual
and unpremeditated as to have no significance on thfr
question of his position in relation to the organized
work of the election. It is possible that that is what
the witness meant to convey by his answers, but it is
not what he said. If we take the answers literally
as reported to us, they are consistent with the notion
that Haslett may himself have arranged for the meeting
and invited his neighbours, and that notion would not be
discredited by the circumstance that Haslett was the
man who had th*» voters' list at the meeting.

The want of written or formal notices of the meeting
does not strike me as a circumstances of any importance
as an indication of Haslett having heard only by chance
of this meeting, particularly when it is remembered
that the policy of the association, in which the tactics
of another association on a different side of politics
are said to have been adopted, was to have no written
evidence to produce on an election trial. Obviously there

-m

HALDIMAND.

69$

was some sufficient notice to bring the men together
whether Haslett gave the notice or received it. The evi-
dence as we have it certainly does not, to my mind, account
for his presence at the meeting in any way which weakens
the effect, whatever the effect should properly be, of the
fact of his attending the meeting with his voters' list and
assisting at the business for which the meeting was con-
vened.

It is not my purpose to go at greater length into an
examination of the evidence, though I have not failed to
consider it with care, because I do not understand it to be
the duty of the Court to deal with it as if trying the fact
as a Court of first instance. We have not to disturb the
finding of the trial Judge unless satisfied that his finding
is wrong. It rested with him, as said by Mr. Justice
Grove in the passage I have quoted, to Ibrm his opinion as
to whether there had or had not been in the case of
Haslett what constitutes election agency. I see no reason
to impute to him, in connection with that enquiry, any
misapplication or straining of the law of election agency,
nor can I say he arrived at a wrong decision on the facts,
although on the same evidence all persons might not arrive
at the same conclusion.

In the short reference I have made to the evidence I
have touched but slightly upon the fact, which to my mind
is an important one and which distinguishes most elections
in this country from most of those in England, that the
candidate makes no provision for doing many things which
we know from common knowledge must be done. The
election is in fact less the business of the candidate than
of the party organization by which he is nominated.

Nor have I placed any stress upon the appointment of
Haslett as scrutineer at the last election. That, by
itself occurring as it did after the act of bribery, would
not prove agency at an earlier period, or agency for
any other pui-pose than the purpose specified in his
appointment. At the same time it is a fact that may
76 — VOL. I. E.C.

594

DOMINION ELECTION.

fairly be considered in connection with any part he
may have taken in the election work. I mean work
of a systematic kind, such as meeting to go over the
voters' lists or the like, not merely advocating the
candidate or the cause, like the person whose agency was
in question in the Prescott Case, 1 Ont. El. Cas. 95 et seq., to
which I have already referred.

It is urged that the extension (as it is called) of the
scope of election agency to include persons like Haslett
exposes candidates to risk to an unreasonable extent.
The result, if it follows, seems to be due to the footing
upon which party organizations have placed these mat-
ters. I have nothing to do with the merits or defects
of the system as a method of collecting the suffrages of
the constituencies. It is not my province to discuss
it from the standpoint of either logic or politics.
What I am concerned with is to ascertain whether a
person convicted of committing a corrupt act in the
interest of a candidate has been properly held to come
within the description of agent for the candidate.
If I find that a candidate who takes the field as the
nominee of a party that acts through an organized
association, whether the organization is strict and formal,
or loose and elastic, depends upon the efforts of the
association to promote his election, or relies upon such
■efforts, I must, as I understand the principles of the
law, hold all persons accredited by the association to
be the agents of the candidate. Whether a particular
individual does or does not come within the description
is a question of fact.

I cannot say that I am impressed by the suggested
danger of hardship to candidates or constituencies of letting
the validity of an election be imperilled by the conduct of
any one of so many people as may be election agents in a
case like the present. The danger to the purity of election
at which our legislation aims from holding a candidate
free from risk from the corrupt acts of those on whom he

HALDIMAND.

595

r lies for the conduct of his election, seems to be at least
as great and as worthy of being guarded against.
I agree that we should dismiss the appeal with costs.

Appeal dismissed tvith costs.
Solicitor for appellant : A. K. Goodman.
0;tw'' ^'"'"^P^"*^^"*^^ ^^^^•^''^%. Oder, Hoskin <£-

END OF VOL. I.

h I

ii+J

III'

Si'tf

J
t

q»

tl:
th

APPENDIX TO ELECTION CASES VOL. 1.

Haldimand Case.

The following is a translation into English of the judg-
ment of FouRNiER, J., in the Haldimand Case, beginning
at p. 549.

FoURNiER, J. — The petition complaining of the election
of the respondent contains the ordinary allegations of
corruption, and alleges besides that ballots have been
admitted and rejected illegally, as well as many other
irregularities, and asks for the avoidance of the election.
Of the thirty-nine charges of corrupt practices contained
in the particulars, the inquiry has proceeded in a great num-
ber of cases, and has been abandoned in several others.
The respondent had given notice that he would proceed to
the proof of recriminatory charges. But the petition
having been entirely rejected, he did not find it necessary
to proceed with these charges.

Among the charges dismissed by the Honourable Mr.
Justice Street, who presided at the trial, and as to which
the appeal is taken, is the eighth, which is set forth in the
following terms :

8. Frederick Harrison, a resident of the township of Walpole, an agent
of the respondent, did, at polling station number six, in the township of
Walpole, induce Thomas Nixon, a resident of the township of Walpole, to
take a false oath at the poll and to vote at the said election, although not
qualified to do so.

The proof of this charge afforded by the evidence of
Thomas Nixon, the voter himself, and of William Parker,
the agent of the other candidate, W. Colter, is so complete
that it leaves no doubt of the existence of the fact charged.

Nixon having presented himself to vote, Parker, the
agent of Colter, requested him to take the oath; he

1;!

■f

i'l

expostulated, but the demand having been reiterated, he
turned and walked towards the door of the polling-place.
Changing his mind suddenly, he returned and complained
again of the agent exacting from him the oath of qualifica-
tion. The agent Parker still insisting, the deput}' return-
ing-officer began to read the form of oath of qualification for
voters registered on the list as farmers' sons. Nixon still
hesitated, when Harrison, the agent of the sitting member,,
half rising, interrupted the returning-officer and said to the
voter : — " Your vote is perfectly good Tom ; take the oath,
Tom, take the oath ; I will be I'esponsible."

Immediately after these words, Nixon took the oath
required, and voted. The same facts are also proved by
William Parker, in the most positive manner. In his evi-
dence Nixon said, speaking of the intervention of Harrison,
that the latter, in view of the objection to his vote, insisted
on his takinfj the oath : — " Harrison insisted that I should
take the oath. He said my vote was perfectly good. That
was all ; I took his word, and went and voted."

The oath taken by Nixon is that in the form T., . ^-^^V
cable to farmers' sons, ending with the declaration: — "Tl .^
I am a resident with my father within this electoral
district, and that I have not been absent from such
residence more than six months since I was placed on the
list of voters," etc., etc.

The agency of Harrison is proved. He had been specially
appointed in writing to represent the respondent at this
poll. It was his duty to protect the interests of the res-
pondent by resisting unfounded objections which might
hinder voters from giving their votes in favour of his can-
didate. But the objection which had been taken against
Nixon was well founded. Placed upon the list of voters
as a farmer's son, livingVith his father, he had, long before
the occasion of his voting, lost his qualification as a voter
by the death of his father. He had also left the property
upon which he had been qualified when he lived with his
father, and had gone to live with one of his sisters upon
another property. He was registered as a voter only in.

'11'

->r!"

such
the

ecially
at this
le res-
might
is can-
igainst
voters
before
voter
operty
ith his
s upon
nly in.

the character of a farmer's son, in no other character, and
upon no other list. It was in that chiiractcr that ho voted.
The oatli which he took that he was resident in the elec-
toral district with his father was evidently false and
altogeth(jr contrary to the truth. He himself in his evi-
dence gives the date of the death of his father as the 4th
of April, 188G. His mother had been dead about ten years.
It was not without much hesitation that he took the oath,
as we have seen by his own account of what took place.
Had it not been for the insistence of Harrison, it is clear
that he woukl have gone away without voting. His hesita-
tion is easy to understand ; doubtless it was most repugnant
to him to make an oath that he resided with his father,
then nineteen months dead. But pressed by Harrison, his
neighbour, who knew as well as he did of the death of his
father, and who,judgingfroin his manner of addressing him,
seems to have been on intimate terms with him, he ended
by allowing himself to be persuaded that there was no harm
in taking this oath; quite probably he believed that his
conscience was discharged from all responsibility by the
persuasive tone and the persistence of Harrison in repeat-
ing to him that his vote was good, and in telling him to
vote — that he (Harrison) would take all the responsibility.
Had it not been for the intervention of Harrison, he would
without doubt have carried out his first resolve to j^oawav
without voting ; evidently this vote was obtained solely
by the pressure exercised upon Nixon by Harrison. The
latter certainl}' could not have been acting in good faith
when he acted thus ; he certainly could not have been
unaware of the death of Nixon's father, one of whose pro-
perties adjoined his own. In any case, since lie took upon
himself to affirm the validity of the vote, whilst it was
clearly illegal, his conduct had the effect of making the
respondent answerable for the consequences of his act. If
he did not know the true position of Nixon, the son, he
should have informed himself of it before speaking with
so much confidence as he did. Like so many others, he
used more zeal than discretion in the exercise of his func-

'i i^

tions as agent, and unfortunately his principal has to suffer
the consequences.

Harrison has then, with knowledge of the facts, been
guilty of the act of inducing Nixon to make a false oath.
The offence which he has thus committed is defined as
follow by section 90 of the Elections Act, declaring :

That every caiuliclate who corruptly hy himself, or by any other person
on his behalf, induces or endeavours to induce any person to take any false
oath in any matter wherein an oath is required under the Act, is guilty of
a misdemeanour.

By the following section, the 91st, it is declared that :

Any wilful oflfence against any one of the seven sections of this Act
next preceding, are corrupt practices within the meaning of this Act.

The act of inducing Nixon to make a false oath is
cleavl}^ according to these sections, a corrupt practice
committed by an agent of the respondent, and, conse-
quently, has the effect of afl'ecting the legality of the
election.

In section 90 the word " corruptly " does not absolutely
mean that the act, thus qualified, has been done with an.
immoral or dishonest purpose, or with malice. The wordi
is used there rather to signify that the act aimed at by
that expression is a violation of the prohibition of the
statute in that regard {Cooper v. Slaile, 6 H. L. Cas.). It
was not necessary to prove that Harrison, in acting as he
did, had a dishonest and immoral intention. At the same
time, he has not been put in the witness box to explain,
on oath his recommendations. Nevertheless, the honourable
Judge's opinion was that the intention of Hamson should
have been proved, but it is contrary to the intrepretation.
adopted by the following authorities :

All the judges have considered that the word ' corruptly '

means, with the object and intention of doing that thing which the statute
intended to forbid. It does not mean corrupt in the sense in which you
may look upon a man as being a knave or a villain.

Per Mr. Justice Blackburn in The North Norfolk Case, 1 O'M. & H..
236, at page 242.

And in discussing the meaning of the word in considering whether
treating had or had not been done corruptly, Mr. Justiee Blackburn says,.

" the point to be considered is, Was it given with an intent tc influence
tlie election ? "

The WalUny/oi-d Caav, 1 O'M. k H. 57, at p. 59,

The word 'corruptly ' means contrary to the intention of this Act, with
a motive or intention by means of it to produce an effect upon the election.

Per Mr. Justice Blackburn in The fftre/in-d Vane, 1 O'M. &. H. at p.
196.

This language is ([uoted with approval by Mr. Justice Mellor in Tht
Lanncenton Case, 2 O'M. & H. 129, at p. 133.

And by Mr. Baron Dowse in The Carrick/enjiiH Case, 3 O'M. & H. at •
p. 91.

See also, on t)ie same subject. The Louth Case, 3 O'M. & H. 161.

Harrison knew perfectly well the objection made to
Nixon; he had heard Parker demand that the oath should be
administered according to form T. appropriate to farmers'
sons ; he had been a witness of Nixon's hesitation; but his
fear of losing a vote for the respondent so mastered him
that he exercised all the pressure of which he was capable
upon this young man to induce him to take a false oath.
Not only had Harrison the intention of insuring a vote to
his candidate, but he persistently applied himself to obtain-
ing it, and obtained it by means of a false oath. It is
useless to say more to prove that Harrison's act was done
voluntarily and not by inadvertence. He shewed his de-
sire often enough, and owed his success only to his repeated
efforts. Whatever motives may be attributed to him, his
act was at least wilful in the sense of intentional, as it has
b^en interpreted by this Court in the Selkirk Election Case,
Young v. Smith, 4 S. C. R. 494.

1 am therefore of opinion that for this single act of Har-
rison the election should be avoided and the appeal allowed
with costs.

he',

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A DIGEST

Off

ALL Tm-: CASKS UEPOIJTKD IN THIS VOLUME

BEINO DECISIONS IN

ELKCTION CASES.

AFFIDAVITS.
See Plkadino, 2.

AGENCY.

1. Ei'idcnce ofayi'iicii — Xoii-meiii-
ber atti'iidinij local cummilter, mect-
incj — Driviii;/ roters to polls —
Voluntfier.^^ — S. was a niiin wlio al-
ways took an active ]).u't in ovcry
election on the Ileforni side, and dur-
ing this election he had, on one occa-
sion, attended a nieetin;,' of the local
political org.'inization or coniinittee
for whoso acts in the management
of the election the respondent would
be •inssveral)le, when some election
work was done ; but it was not
shewn tluit he \vm\ canvassed, except
in this particular case, or that he
was a member of the committee,
and hn swore that lie was not iisked
to do any work. On the polling day
he was actively engaged in driving
voters to the polls in his own con-
veyance, which he said he did as a
mere volunteer : —

Held, that S.'s agency was not
proved. North Ontario (Provin-
cial), \.

77 — VOL. I. E.G.

2. Personal enemy of candidate
takiiifi interest in flection — liribvry
— Kriilence — Tri ichery'\. — L., being
a inunicipal councillor, and mm such
a member of an association which
had brought out the respondent as a
candi'late for election, had a personal
disagreement with the respondent,
and refused to attend the meeting
of the nominating committees wlien
the respondent received the nomina-
tion, and when asked by tli(! respon-
dent to support him refused so to do,
saying that he now had an oppor-
tiniity of getting even with liim ;
but without the knowledge! of tlie
respondent, lie took an interest in
the election and bribed a voter.

lldd, that he was not an agent of
the respondent, and that theie waa
evidence tending to shew that he
was acting treacherously towards
him. Lennox (Provincial), 41.

3. Eridence of agency — Coin-
municalion with respondent — Volun-
teer — To establish agenci/ not neces-
sary that candidate should have
knowledge of agency or of agent.'\ —
S., who was a ])oIitical friend and
supporter of the respondent, treated
a meetinjf of electors with the know-

598

DIGEST OF CASES.

I i

lit

ledge, though not with the diiect
assent, of the res|)ondent. It was
pi'oved at the trial tliat S. vas a
noisy, talkative man, employed as a
travelling ngent through the coun-
try ; he had a bet or bets on the
election ; the respondent saw him at
the meeting, and iiad some conver-
sation with him in the crowd. Some
time during the contest, tuid liiter
than tlie date of the meeting, he
went to the respondent's oitice to
make some suggestions, and asked
his opinion as to tlie result, as he
said some men wanted to bet witli
him. While there lie saw some
** campaign literature " on the tal)le,
and took sonie of it away with hiui.
with the assent of the respondent.
No evidence was given tiiat he oan-
vasseil voters, and the respondent
swore th;it he never gave l)im ex-
press autlioiity to canvass or do any
thing for him, and that he was not
a man lie would employ as an
agent.

JIdd (at the trial and on appeal),
that at the time of the nieetniL.' tS
was notliing more than a volunteer,
for whose acts the candidate was not
responsible.

iieiDhle, wiiere a corrupt act is
committed during an election con-
test by an agent with the knowledtie
of the candidate, and it turns out
thiit tlie person connnitting it was,
in f.ict or in contemplation of the
election law, tlie agent of the candi-
date, it is not necessary that the can-
didate should at the time have
knowledge that the person commit-
ting the act is his agent, or even
th'it he should know such [ter.son
individually.

2V/e Londonderry Case, 1 O'M. k.
H. 278, and The Dunqannon Cane,
3 O'.M. & H. 101, referred to and
followed. Prescott (Provincial),
88.

4. Sellivg liquor on polling-day

Evidmice of agnnry — I)elegnte to po-
litical convention- — Speech by candi-
datf at convention — Implied ajijwint-
inent oj delegates as agents — Agent
acting quQ, agent.'\ — The petition
charged that one H., as agent of the
re.spondent, in viohition of H. S. O.
1877 ch. 10, sec. 157, sold or gave
drink at liis tavern within the limits
of a polling sub-division on pollin"
day, which l.y K. S. O. 187 7 ch. 1 1"^
sec. 2, sub-.sec. 0, is ujade a " corrupt
practice." It appeared that H. was
present and had acted .is a delegate
at the convention of reprcsentaiive
reformers wln^-eat the lesp indent
was nomiiiiited. Tie latter did not
undertake a jiersouiil canv.iss, or ap-
point any particular persons or asso-
ciationsof persons his a;.'ents for the
purpose of eaiiying on the contest,
l)ut at the .said cmivention he made
a speerh iiitiniatiii<>- that he expected
his friends to work for him : —

HehL at the trial and l)v the Court
of Appe.il( I]uin'0\,J. A , dissenting),
that tliis constituted an app. intment
by him of every one of thosP w!io
constituted the convention as ids
agent for the purpose of the contest,
and no proof of acts done by the
persons thus addressed and lecog-
nized by the candidate, was neces-
sary to esta'olish the agiMicy, and as
H. undoubtedly did sell tlie liquor
as allej^'ed, and as tliis corrupt act
was not shewn to be of such tiitling
natuie and extent as to cane within
R. S. O. 1877 ch, 10, see. l.')9, the
election must be declared void under
sec. lo8.

Per Pattkhson, J. A., and Fhr-
Gusov, .J., (at tiietrial) — '1 he question
of agency i.s one of fac^, and must
be decided in every case upon the
circumstances immediately in ques-
tion.

Per Spragge, C. J. O.— When we

DIGEST OF CASES.

599

find theue two things concur, an act
that comes within the desiscnation
"corrupt practice," and that the
doer of the act is an agent for the
candidate, we are not at liberty to
say that the act was done in order
to ])romote the objects of the agent,
and not in order to promote the in-
terest of the candidate; that, though
true it is the act of the agent, it is
not the act of the agent, qua agent.
It being an act which is profitable
to the doer of the act, and the mak-
ing of the profit being assumed to
be the motive of the doer of the act,
cannot dissociate the act from the
election.

The Lincoln Case, H. E. 0. .391.
commented on. The Harwich Cane,
3 O'M. & H. G9, distinguished.

No formal appointment and lio
particular words are necessaiy to
constitute agency, and less positive
evidence of appointment or recogni-
tion and adoi)tion of a delegate to a
party convention as an agent is re-
quired than in the case of one not a
delegate.

Per Burton, J. A. — Even if H.'s
agency generally for canvassing and
assisting in the elections were estab-
lished in this case, he did not stand
in the relation of agent in respect of
the matter complained of. Tlie only
evidence was that he had sold liquor
for iiis own purpose under a mistaken
idea that he had a right to do so, and
there was nothing whatever to shew
that it was done in connection with
his character as agent. But in fact
the words spoken by the respondent
at the convention to the delegates
did not constitute them his agents.

Per BuiiTON, J.A. — It is only for
those acts of the agent which are
done by him whilst acting or profes-
sing to act within the scope of his
duties that the candidate is respon-
sible. It is contrary to all principle

to hold any person affected by the
act of an agent, unless it is shewn
that the act was done in the course
of the employment, and within the
scope of the authority, although it
may be in abuse of it. West Simcoe
(Provincial), 128.

5. Appeal by candidate for help
from those present at nominating
convention — Authorization to can-
vass covers agency — Absence of re-
pudiation by candidate — Difff.rnice
bftioeen commercial agency and elec-
tion agency — Evidence of agency —
Personal c vimunication and recog-
nition by candiilnti — Hiring vehi-
cles.l — It appi'ared that when the
candidate accepted the nomination
of the convention of the party he
intimated to those present, amongst
whom was N., tliat he h)ok<'tl for
their active exertions in carrying on
the contest.

Held, per Patterson, J. A., and
Feugusov, J., thut tills amounted
to an authorization of those present,
including N., to canvass and thus to
act as agents ; for the authorization
to canvass covers agency, and, even
without any such express tlet-lara-
tion, the agency of those jiersons
who were actually attendiiig and
taking part in tiie convention was
established in the absence of any-
tliing shewing a repudiaticm or re-
jection of the offer of services, which
is implied by the very fact ot tiieir
attending and making the nomina-
tion.

Agency in election cases differs
from agency in ordinary commercial
or other transactions of Ijusiness,
inasmuch as in the case of an elec-
tion the agent, cimstiiuted by what-
ever acts are sufficient for ilie pur
pose, may bind his principal by acts
which are not oidy outside the scope
of any authority expiessly given to

I !

600

DIGEST OF CASES.

him, but which may be directly
contrary to the express directions
of the person whose agent he is held
to be.

One A. had hired teams and taken
voters to the polls contrary to K. S.
O. 1877 ch. 10, sec. 154, and it was
proved that the candidate, being in
the villiige of G., was told that A.
was there for the above purposes,
and that he went to see A. in his
hotel and discussed the election and
the probable results, with lists of
voteis. etc.

Held, per Fergusox, J., that this
was sulHcient to prove the agency of
A. in the matter.

Held, per Patterson, J.A., that
this, and other circumstances of the
case, established such agency. Mus-
kokit and Parry Soimd (i'roviricial),
197.

6. Hotel-keeper sellinfi liqtior on
2wl.luiij-d(iy — Evidence of aj/enci/.] —
A cliiirge was that F., a licensed
hotol-Ueeper, about four o'clock
on the polling-ihiy, served H.
(an agent) and M., a voter, with
drinks in his barroom. F. was a
mendier of the reform associalion,
and generally took ))art in elections.
He attended the meeting called for
the nomination of the respondent,
but lie took no active part in it.
On the election day he drove electors
to the poll, but it did not appear on
whieh .side he was voting. The
presiilent of the reform as.sociation
said he did notthiidv that F. worked
for the respr'iulent, and understood
that 1).. 1 a friend of the defeated
candidate; and H. said he thought ho
was not working for the respondent.

J'er l5ovn, </.— The evidence fail-
ed to shew that F. was an agent of
the respondent. — Per Cameron, J.,
that it was sufHcient to establish
such agency.

On appeal, Osler, J. A., concurred
with Boyd, C. The other Judges
did not consider the point. East
Simcoe (Provincial), 291.

7. Meetings of party association
for constituency — Committee meet-
inys — Membership — Authority —
Recognition — Corrujit })ractice,s.'^ —
A reform association existed in the
constituency as an organized body
for bringing forward candidates and
doing everything in their power to
elect their nominees. B. was present
at meetings of the association, and
one witness swore, " he took as uiuch
part as any of us." It was not shewn
that the organization was well de-
lined, or what was necessary to con-
stitute n)ember.ship. A committee
and sub-committees were appointed
for the township in which B. resided,
but he was not on them, or any com-
mittee for election purposes. Com-
initlee meetings were held at his
hotel at which he was ]»re.sent, but
it was not shewn that he did any
more at tlie meetings than any owner
of an hotel would do at a meeting
held in his house. B. swore that,
with the exception of one man, he
did no canvassing outside his own
house ; he did not report to the com-
mitieo meetings in iiis house, because
he had been doi.ig nothing, but
he gave the respondent the name of
one pel son who wished to see him.
It was not shewn that he had any
aiitlioi'ity fi'om the respondent, or
any committee, or that the re.-pon-
dent e-xpected his assistance, or gave
him any instructions, or recognized
any act done by him. At the trial, it
was proved that B. had been guilty
of fi corrupt practice, with ut the
knowledge or cons-ent of the respon-
' dent :—

J/ild, following the Xorth Ontario
Case, II. E. C. at p. 323, that B.

DIGEST OF CASES.

601

iiuino of

<er him.

lail any

out, or

ropou-

Ontario
tliat B.

was not an agent of the respon-
dent.

D. heard of a meeting, went there,
and found abotit half a-dozen people
present going over a voters' list, in
which he did not take part. It Wiis
not shewn that he had any authority
from the ref-pondent, or any com-
mittee oi- association, or any one on
his behalf, or that any act he did
was recognized. D. was found to
have boon guilty of corrupt practices
without the knowledge or consent of
the respondent.

J/ehl, following the North Ontario
Case, H. E. C. at p. 317, that he was
not an agent. Welland (Provincial),
.383.

8. Nomination of candidate by
political convention — Evidence of
agency — Meetiw/s — Canvassing . ] —
The respondent was nominated by a
convention of the conservativeparty,
composed of fifty or seventy-five per-
sons, among whom was R., who was
well known as a prominent member
of the party, and was on intimate
terms with the respondent, both of
them being ])hysicians. R. was one
of the persons nominated at the con-
vention, but the choice fell on the
respondent, who then made a speech
of acceptance in which he said he
expected his frienils to take an in-
terest in the election and to work
for him. R. made no systematic
canvass, but lie asked several ])eople
for their votes, was at various in-
formal meetings of voters held in
the interest of the respondent, and
with the respondent visited the
houses of several voters : —

Held, that R. was an agent of the
respondent.

F. D. was also at the convention
which nominated the respondent, and
he and W. D. were among the sup-
porters of the respondent in a par-

ticular locality who held meetings at
which the voters' lists were discussed
and arrangements wei'e made for
looking up doubtful voters : —

Held, that these men were both
to be regarded as agents of the
respondent. East Northumberland
(Provincial), 434.

9. Scrutineer — Illegal acts at pol-
ling j)lace.^ — A scrutineer appointed
for a ))olling place at an election,
under the written authoiity of a
candidate, is an agent for whose
illegal acts at the polling ])lace the
candidate will be answerable. Hal-
dimand (Dominion), 529.

10. Absence of organization of
party supporting candidate — Non-
existence of political association —
Evidence of agency — Activity —
Recognition — Attendance at com-
mittee meeting — Scrutineer.^ — At
the election in question there was no
formal organization of the party suj)-
porting the appellant. The county
reform association had been dis-
banded and the minutes, regularly
kept since 1882, destroyed, as were
the rough minutes of every n)eeting
of a convention of the party held
since that date. In lieu of local
committees, vice-presidents were ap-
pointed for the respective townships,
and on the approach of a contest the
vice-presidents called a meeting of
the county association, composed of
all reformers in the riding, to go
over the lists and do all the neces-
sary work of the election.

Tlie evidence of H.'s agency relied
on by the petitioner was that lie had
always been a reformt^r, had been
active for two elections, had attended
one important committee meeting,
and been recognized by the vice-
president of the township as an
active supporter of the appellant,

602

DIGEST OF CASES.

and that he acted as scrutineer at
the polls in the election in question.

The trial Judge held that all these
elements combined, in view of the
state of affairs regarding organiza-
tion, were sufficient to constitute H.
an agent of the appellant.

On appeal to the Supreme Court
of Canada : —

Held, Ritchie, C. J., dissenting,
and Taschekeau, J., hesitating, that
the circumstances pioved justified
the trialJudge in holding the agency
of H. established. Ualdimand
(Dominion), 572.

Valuable present to wife of voter
after election — Ayenci/, when termin-
ated.] — See Bkibery, 2.