..r... IMAGE EVALUATION TEST TARGET (MT-3) t ^ // ^/ A %o i/.> 1.0 I.I 1.8 i.2'5 1 1.4 1 1.6 ^ 6" ► V] / i?! o^ 7'* '/ # g>' Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4S03 4. f/. %^ CIHM/iCMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques :\ '> Technical and Bibliographic Notat/Notaa techniques et bibiiographiquee The Institute has attempted to obtain the best original copy available for filming. Features of this copy which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming, are checked below. D n D n D n Coloured covers/ Couverture de couleur I I Covers damaged/ Couverture endommag6e Covers restored and/or lamiriated/ Couverture restaurAe et/ou pellicuiAe □ Cover title missing/ Le titre de couvertui couverture manqje l~~| Coloured maps/ Cartes gtographiques en couleur Coloured ink (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) I I Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other material/ Reli6 avec d'autres documents r~7| Tight binding may cause shadows or distortion along interior margin/ La reliure serrde peut causer de I'ombre ou de la distortion le long de la marge intirieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajout^es lore d'une restauration apparaissent dans le texts, mais, lorsque cela Atait possible, ces pages n'ont pas iti fiimAes. Additional commernts:/ Commentaires supplAmentairrys: Tf to L'Institut a microfilm^ le meilleur exemplaire qu'il lui B 4tA possible de se procurer. Les details de cet exempleire qui sont peut-Atre uniques du point de vue bibliographique, qui peuvent modifier une imege reproduite, ou qui peuvent exiger une modification dan« la mAthode normale de fiimage sont indiqute ci-dessous. D D D D D D D Coloured pages/ Pages de couleur Pages damaged/ Pages endommag^es Pagsj restored and/or laminated/ Pages restaurtes et/ou pellicul6es Page'; 'discoloured, stained or foxed/ Pagt <*c jolortes, tachetAes ou piquies Pages LS*>t>?-:;3e(J/ Showthrot^h/ Transparence Quality of print varies/ Quality Inigaie de I'impresslon Includes supplementary material/ Comprend du materiel supplimentaire Only edition available/ Seule Edition disponible Pages wholly or partially obscured by errata slips, tissues, etc., have been refilmed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d'errata, une pelure, etc., ont 6X6 filmies 6 nouveau de fapon 6 obtenir la msilleure image possible. T» P< of fi! Oi b« th si( ot fii sii or Tl sh Tl w M di er be rlj re m This item is filmed at the reduction ratio checked below/ Ce document est filmi au taux de reduction indiqu6 ci-dessous. 10X 14X 18X 22X 28X 30X y 12X 16X 20X 24X 28X 32X The copy filmed here hae been reproduced thanke to the generosity of: National Library of Canada L'exemplaire film* fut reproduit grAce k la ginArositA de: Bibliothdque nationale du Canada The images appearing here are the best quality possible considering the condition and legibility of the original copy and in Iceeping with the filming contract specifications. Les images suivantes ont «tA reproduites avec le plus grand soin, compte ten'j de la condition at de la nettetA de Texemplaire film*, et en conformity avec les conditions du contrat de fllmage. Original copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or illustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. Les exemplaires originaux dont la couverture en papier est ImprimAe sont filmis en commenpant par le premier plat et en terminant soit par la dernlAre page qui comporte une empreinte d'impression ou d'illustration, soit par le second plat, salon le cas. Tous les autres exemplaires originaux sont filmte en commenpant par la premiere page qui comporte une empreinte d'impression ou d'illustration et en terminant par la dernlAre page qui comporte une telle empreinte. The last recorded frame on each microfiche shall contain the symbol — ^ (meaning "CON- TINUED"), or the symbol ▼ (meaning "END"), whichever applies. Un des symboles suivants apparaUra sur la derniAre image de cheque microfiche, selon le cas: le symbols — ► signifie "A SUIVRE", le symbols V signifie "FIN". Ma^ s. plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent Atre fiim^s A des taux de reduction diffi'ents. Lorsque le document est trop grand pour Atre reproduit en un seul clichA, il est filmA A partir de Tangle supArieur gauche, de gauche A droite, et de haut en bas. en prenant le nombre d'images nAcessaire. Les diagrammes suivants illustrent la mAthode. 1 2 3 1 2 3 4 5 6 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 V. 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 B. 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 VI 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, 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 P. 34 Ch. D. 234. 430, 432 G. 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 H. 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 HI 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 N. 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 P. 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 R. 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. IX 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 8. 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.llllpti, 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 T. 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 W. 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 68 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 OF 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. 2 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. I 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 %. 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 ;dthouvas 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 i NORTH ONTARIO. 21 s Oonltl. The troat was before 9 o'clock. Wilson said, that he and Sinchvir fijllowod McNabb and Sinitli to the hotel. snw tl leni ( Irinkiii'' there, and that he told Smith it was no 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 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 26 PROVINCIAL ELECTION. 1 1 ■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. 27 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 I 28 PHOVINCIAL ELECTION. ii 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." J ■i NORTH ONTARIO. 29 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 , 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, 30 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. 31 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. 32 DOMINION ELECTION. WEST NORTHUiMBERLAND. DOMINION ELECTION. Before The Eon. Chief Justice Cameron. I 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'> 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 surroundinay be that at an elec- tion ceitain acts have taken place wliich the Jutfmber 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-'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. 45 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- 46 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 inS'. 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 52 PROVINCIAL ELKCTION. vit'W of iiijnriiii^' tlit.' re.sponld " 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 !•:.('. 58 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. fo of fol til tio th. w ai! of 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. 59 iies- 'ourt. ohu the Iby ote, ont, [uor liner ling IS of anarty 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 60 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. 61 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- m 62 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' c. 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 I i mm €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 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. U 11 i SI if 66 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 ('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! i. ^ "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. hi ha Er Ai ck vii UK vai he J i I LENNOX. 69 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 'i E '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 , 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. 71 '' 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,'- 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 I 7C 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. 77 the travelling anrl other oxnenscs of any voter in i^oitin; to 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 a d? A ■''•: O / ///. Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 ( 716) 872-4503 iV ^\> \^ ^^ \ ^v \ ^^ ^ <:^^~^' w< w. C/j I rff^^^p 80 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 w. COU Id 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 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. 82 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 une 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 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'luy 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'.ely. 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. SH 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, [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 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. 89 ())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 s1, 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. //'/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 iicrsl 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 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 uiap()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, or place of the kind t practice is shown to have been connnitted by Isidore Haulne, an agent of the respon 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 v the decisions under the election law, may be lixed with the status of an 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. 09 »•' •■ *» I 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 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;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('<,'eriiicipally 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 n. the lifillot incnnt vvi'itini,' tlio nniiic of tlic cuiiliilatf' ; and altliuii^li lie iiiii^Iit Ik' nlilf to truly ut into the han■') 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 riil 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 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: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 MO 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 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, ;uindent, 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'ijbrii 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, .')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. 1 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 ('(ifre 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>einturnin;jf ollicer declined to d(», not considorinv 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 eontainelained 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. lb e IS nowhere re(|uire( I t o e.\ am 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, (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 saiy 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/)el/, 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 (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 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. 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((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. 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., ')-f7 ; The, Host Xorthini,h"ihi,ij di-^e, H. E. C, cS ; The Klngsloit, Case, ib., p. G'2') ; The North Middlesex Case, ib., o7i7 ; Tlu; rth Gn;i s|M)H(l(>nt. lero is iiM <()(;ifvtion : iiislios its .'ar, 111* !•<• 'L'ct<' '' 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 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 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 lileens 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 stooroceccUn;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«; 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 ])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\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 can4t 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 disregardeist 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 fluth 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(liar 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 rospoiulcnt was the choice of tlie dch- ifitt's in convention. Wo soe Ity nunierouH casi-s in Mr. llr/»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 (lihrased 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 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 on *i 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 nudy 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, I 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.), proviueh 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 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 (' ^ I' I'il 1^ t" 174 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 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 . 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 ! w I wm H! 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. \V 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 WW 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. m 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, 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 outHie directly contrary to the exprcHH direction.^ of the person whoHe agent he is held to he. JI>\.t o'; February 15th, the respondent was chosen by a con- vention of his i)..i'ty as their candidate. On February '2.": 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 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. il ': ! '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- r 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 m 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 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 |i m Wi! ; !. :H !ir ■'■ ■ • 2O0 PROVINCIAL ELECTION. ^ y 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. m i 1 1 ;• i? vt m '4 4 I I 1Kb I' Xi m \ II an 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. 2m 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 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. :?»; g 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 mi 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 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 vr 216 PKOVINCIAL ELECTION. m 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 P' ;! ■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 » m i» it ih l.l k1 m If .ill Fpecific 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:{ in 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. FT 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. i m II 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*e, Ih, p. 370 ; Tl,^' Halton Odse, ih., p. 2S3 ; The North Grey Case, lb., p. 302 ; The West Hasliiuis Condent.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 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 ;() 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( fl ' 1 't S ■ ' ft ; (1 f If -' m III m hi', w 232 PROVINCIAL ELECTION. 1 1 '■■ 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. 'fi' : 'i ■A if m Si til ■if, a" 'i •'1 234 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- It I m £! Ill 'I ., I; :; 1*1 m^ III i|iii4ix 1 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 m I H ^;^i m ~ ''■ \ iii! 't:'' 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. , " 1 ■ ! 'fi ' 'Ma m Ik 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. pi ill \%\ \m 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 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. s w I 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 m hi m m 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-;, FT h'f 248 PROVINCIAL ELECTION. r " 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 Ml 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(utiiiS. 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 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 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 hrs()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. 1 f 1 1 • M 1 ^1 i\ ( h i! i I i f tl-. ' 1 ii 1 |, 1' f »l s r 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 ir 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 \Veilitiiromoting 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- ! I If I m U III I WW 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- w 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. in B ifr ?f m fr 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 1 ipiT?*'- ' '" ■2G4" PROVINCIAL ELECTION. accoi-flinjr to Eini>'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 treatink 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 candiilatS5 it is declared all persons who have any bills, cliarges, or claims upon any candi 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 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 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- ■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- 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 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 The other matters II I'fjod against the Ilp.spon, 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. h'M r-i gjB - 1 ": "1 .. ;. i ii^ ii ^•ifc^. 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 canending 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 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 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, anuld 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, 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- 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)ieace 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<^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 tiy 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!' 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),*>, 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 .• 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 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 Caif 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;keut 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 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 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 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/»'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 proceeiit it is not t^xprt'ssly uUc^ed, nor (idcs tlio oviose. 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 ^1 lyU^ m M 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.'.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. mi V noi PROViNC'iAi- i:r.K(rr(ON. s 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 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 votevi- 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. tl 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 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 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 avoidepear so Jiitluential, or so extensive, or so insidious, as to induce the nwT V 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 '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 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 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 cliaue 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 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. 1^ EAST S1.M( OK. ;n 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 serceivetl 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 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 M 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., 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 grounn 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. /ioi'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'iici,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'iror((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 ref 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 etl)oi- too tliiii a viil to con- ceal tlic true aiul corrupt nature of the transaction. The treating of Rei^fari on polling; 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 mm :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 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 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 tpose 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 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' aiecific 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 n (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- WW 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 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 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 Ml 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; iK 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 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 rule apjilied to those which lunl ■4> ftVW- 338 PROVINCIAL KLEfTlON. taki;ii place and were cornm. jadiee. . \'<'iy |)li 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, 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 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( 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 pi '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' 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'nerima 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 ,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 manai lind it repeated, it be- comes extremely !). 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('ii)ii in tlic W'ln/ Xi>rlh nwhrflitmi Vi\st\ lnit as tlir (jiicst ion lias Imcii ai;ain discusst.'d, ,'inir(; witli «k'f'( rcn<'e to sav that, in ni\ oiiinit 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 juiis1l(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 nndport(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 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 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- 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 precisely of the ciiaracter which the Lepreliensions 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 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.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 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 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. Attlu! iioiniuatioii a |)rotc«t was handed to the leturnini; otlictr, si>,'iicd hy tlio dcteated c.indidati^ and three eleetor.M, elainiini; tliat re.s|ioiideiit wa.s di«(|uaiilitil, and that the o|i|iosiiii,' candidate was entitled to the seat. Notice thereof was |ioHteil at .some of the |ii>lls, and woiiie tlectors Were told of it. 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 juv the |irtitioiiei-. Jicthune, i^. C, and WiUuini Jolmslon, ior tht; respon- dent. Deconihei- 1t 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 avoiay 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(> ii W 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.). ■ ■ . ; i t ff 1: ill m i^ji "V i^'i It 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>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. I i i: 368 PROVINCIAL ELECTION. '\¥i ,, I *v IT **j / I! li I 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 descriliey .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 unilities 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 M 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 «;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 I I 374 rUOVlNCIAL ELECTION. beinj; entere.(.;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 J w H^^HAK ' V ^-^ 1 ♦r" > H' S76 PROVINCIAL ELECTION. mm 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 repy 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 it i:t !■ ! ■ i u if m. 380 PllOVIXCIAL ELECTION. II i 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 m SOUTH HENFKKW. 381 such return, <,'ivc to such voters and otlier voters and inhabitants of Kiered, 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 m 1 I >• m -3;l. ■ 1- ■' ■■'. -ni \m 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. i .( WELLAND. 383 I 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. i !;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' 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' Ni 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 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 ' m il I)WV*' 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; i 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: m 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 trV^, 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 ■Turactices 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 establishelishcd, 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 HT . n 394 PROVINCIAL ELECTION. n 2^' *, 1 »' i'i >^ 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 ", ■ I Hi ) in III IM ! li 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 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 k m 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 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 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. w 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 etion. Now, ns we poiutenly 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 11 M III i\ 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 provevacf 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?:eNpression. 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.'.- 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. r hi.'< (t, 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, , 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 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 ad been the setting aside of the election. Tho respondent must pay the general costs, wdiich of cour.se is I 1 1! >'r % !I 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 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, !vnn 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 i- '^1 I 418 PROVINCIAL ELECTION. 'K 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 ht 111 i. ii 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 fl r*^ I 422 PROVINCIAL ELECTION. LENNOX. PROVINCIAL ELECTION. 1 t '* » ' *' 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 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 u 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 426 m 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 w 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 Uf 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. 'W 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,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 addefore 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. w 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 ■ '■ 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, uny'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, anoth 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 II m .J^' m h 'Sfa 11: 442 I'JtoVlNClAL ELECTION, conduct aii, 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 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 u 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 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. np ■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 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 Juo '^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 ^ '**," 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 873-4S03 ) 456 DOMINION ELKCTION. »1 4 4 i ' i.4 ) ^! ■i 5 I 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 (iuestieen 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 I 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, anear 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 s 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 — 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 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 11 4G8 DOMINION ELECTION. m •-av^' 4: 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 -, H. E. C. 245, at p. 247 ; as to the Hirdsa/l Case, and the North Y,rk Case, 1 H. E. C. 63. i: 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(. 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''. t 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 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 responehalf, of tlie travelling and other e.\!)enses of any voter, in going to or returning from any olecti 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, i 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 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 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- m 49G PROVINCIAL ELECTION. v'r- r > t ! '. f in 111 M m h 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, It 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, V. 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• 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 haorn, 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 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 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 ■!'. '■ : i'1 ; la I 'f I'! ;i4 PROVINCIAL ELECTION. IP 'A 111 i lit'? If 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 H 516 PROVINCIAL ELECTION. Ik 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 i 518 PllOVINCIAL ELECTION. ii If 4' II mi 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. '4 \ H, m " 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^ ' '1 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' 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 M '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- m 528 PROVINCIAL ELECTION. V^> u 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. «■ 1 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!,<' III I w i 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. ■ 111 ill ^44 DOMINION ELECTION. 1 ' \^ 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. 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 \ 11 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. u\ M i 548 DOMINION ELECTION I*, 11: 1 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. f 1" 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"" 25 llllgl 2£ 1.8 1.4 m — 6" V] v^ 7: 9 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14SS0 (716) 872-4503 . 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 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 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 'M 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 jui 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 responf 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? 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 '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, frauefore mentioned, and then to allege that the defendant unlawfully, wilfully and corruptly ditl cause and procure the said person to do an 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 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}' 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 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 ti I 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 ' P 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. k 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 f u 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 ! ti 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. I •1 ^86 DOMINION ELECTION. H i 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 I HALDIMAND. 587 ■which, in casos of this kind more particularly should restrain an appellate court from interfering with the find- \u . il 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 f 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 ; repeating \i \\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. I i 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. fl h I ii+J s III' Si'tf r t I i t J t oi ^^ ta q» T tl: th ao 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 mi 1;! 2 m< ■f mi 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!" y 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', vi W;i elo iii^ sio pol for of < be WOI 8lie in wa;^ and tod he vot< vey; mer li prov ciai) 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, i.-in- terference by appellate Court] — At the nomination a protest was handed to the returning-otficer, signed by the defeated candidate and three electors, claiming that the respon- dent was disqualified, and that the opposing candidate was entitled to the seat. Notice thereof was posted at some of the polls, and some elec- tors were told of it : — C04 DIGEST OF CASES. Held, on the evidence, the trial Judges having refused to award tlie seat to the defeated candidate, that the Court ina|)])oal would not inter- fere. South Renfrew (Provincial), 359. 4. R. S. 0. 1877 ch. 10, sees. ITj, 175— SummfU'u trial oj persons (jnil- tt/ of corrupt praetlces at elections — A'^o appeal from decision of Court — R. S. O. 1877 ch. 11, sees. 63 el seq., not applicable,^ — The right of appeal given under section 63 and following soctions of the Controverted Kleo- tions Act, R. S. 0. 1877 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 ])rao- tices under .sections 174 and 175 of the Klection Act, R. S. O. 1877 ch. 10, and amendment. Oliservations upon anomalies and difficulties in the procedure, Len- nox (Provincial), 422. Finding of trial Judc/e — Rejected ballot papers — Non-interference by appellate Coicrt.]-'iSee Ballot, 2. Disagreement of trial Judges — Position of case before Court of Ap- peal.] — See DiSAGHKKMENT OF TRIAL JUDOES. Power of savinq election under R. S. 0. 1S77 ch. 10, sec. 169, to be cautiously exercised by appellate Court.] — See Saving Clause, 3. BALLOT. 1. Secrecy of ballot — Illiterate voters — Duties of dej?uly returnimj- ojfficer as to — Marking ballot paper in presence of other persons.] — A deputy returning-officer in polling the votes of some fifty illiterate voter."*, instead of taking from each a declaration " tliat he was unable to read," asked each if he was able to read or write, and having received an answer in the negative, requested him to ]»ut his mark to the declara- tion of illiteracy, explainiiig what he conceived to be its etl'ect thus, " You heieby sign that yon ai'e unable to read or write suflicientl}'^ to mark your ballot paper." lie then openly marked the ballot paper as instructed by thfi voter, in the presence of both candidates, their agents, and the poll clerk, all of whom lifvd taken the usual declaration of secrecy. One witness also said the constable was in the room. Held (at the trial and on appeal), that .substantially there was no vio- lat ion of the principle of secret voting laid down in the ActR. S, O. 1877 ch. 10, and that the votes were not improperly taken. Per OsLEK, J. A. — There is noth- ing in the Act which makes it necessary that the deputy rotuining- officer should withdraw with the agents of the candidates and the voter to another room, or which for- bids the ])oll clerk or other persons lawfully present in the polling booth from remaining there while the voter announces for whom he wishes to vote. Per Spraoge, C. J. O.- The il- literate voters were not misled, but the conduct of the deputy returning- officer was perverse. The manifest policy of the Act is that the voting shall be in all cases as secret as under the circumstances it can be. It was not necessary that more than the three persons named in the Act besides the voter himself should be pre-sent : the deputy returning-officer and one representative of each candi- date. The presence of any others m DIGEST OF CASES. 605 sturning- juianifest |ie voting as under It was than the fthe Act Ihould be ig-officer Ich candi- Ly othei'8 was not in accordance with the spirit and poHcy of tho Act and shouhl not have been permitted by the deputy returning-orticer. J'er BuKTOX, J. A. — Beyond the slight niistiike made by the deputy retiirning-otUcer in expUiiuing tlie dechiration, there appears iiotliing in the course ])ursu('d which was not warranted by the Act ; tliere was tio one present except the deputy re- tiirniiig-othcer, th(! candi(hit('s, their agents, tlie poll clerk, and the con- stable, all of whom had taken the oath of secrecy, except the constable, who was in another part of tlie room. Prescott (Provincial), 88. 2. Secrecf/ of ballot — Public policy — /i. e7'n — Finding of trial Jndije — Non-iuterf ere lice by appel- latr. Court. | — Secrecy of the ballot is an absolute rule of public policy and it cannot be waived : sec. 71 of ch. 9, Jl. S. C. On this appeal certain ballot pajiers being objected to : — Held, that it will require a clear case to reverse the decision of the trial Judge who has found as a cpiestion of fact wluither there was or was not evidence that the slight ])encil marks or dots objected to had been lunde designedly by the voter. Also, that where the x is not un- mistakably above or below the line separating the names of the candi- dates the ballot is bad. Ifaldiniand (Dominion), 529. See Tendered Ballot. BETTING. liet that a voter would not vote- J'Jvidc'iice.] — 11., an agent of the res]iondent, made a bet witli P. that P. would not vote. H. swore that he made the bet not with any inten- tion of inlluencing P.'s vote, which he knew such a. bet would not do, but as a sporting bet made on the s|»ur of the moment, with the ex- pectation that, as he said, P. would warm up and vote ; while P. swore that the $5 would not have pre- vented his voting if lie intendi-d to do so, and that ho had made up his mind not to vote before the bet was made. I/eld, that this was not a cor- rui)t act. West Nortlnuiih Hand (Dominion), 32. (llevorscd in Supreme Court ofCaiiada.i BALLOT PAPERS. See Ballot, 1, 2 — Irregularities AT Election. 78 — VOL. I. E.C. BRIBERY. 1. Payment to messenger — Colour- able j)ai/nient.] — A payment of iBlO was made to P. H. to go some miles for voters, although another mes- senger was sent and ]iaid by another agent for the same purpose, who failed to get thi'ough on account of the roads, and returned the money : — Held, that tliere was no reason to suppose that the money was paid colonrably. North Ontario (Pro- vincial), 1. 2. Promise to wije of voter — Valu- able present after election — Corrupt practice — Agency, vhen ierminated.l^ — P., an agent of the respimdent, on the morning of the election called on the wife of one K. and asked her to use her influence with her husband to induce him to vote for the respon- dent, saying, " I will make it all right." She told her husband, who \f 606 DIGEST OF CASES, i. !ii' lau;:{lie'ity and assent. J'er OsLKR, J. A. — P. intended to convey and did convey to the wife the idea Lh it if she procured or would induce her husband to vote as he wished, slie would receive nome- thlnj of value ; th(; giving of the groceries after the election was an act of brilKM-y, and if it stood alone it would have been necessary to carry the evidence of agency furtij!>r, but following the promise it showed what both parties understood, and to that extent the respondent was affected by what was done after the election. North Ontario (Provin- cial), 1. 3. Equivocal act — Innocent con- struction to he preferred — Evidence — Treating — Payment of ^2 after close of poll — Payment of ^50 after elec- tion to enable voter to (jo awny.'\ — When an act or expression is eter — Im- Uy voted or rio<.]— Where N., who appeared to have been an agent of a candi- date, called upon M., an elector, and, without directly asking him to vote, han0. Paying canvassers not a corrupt practice.] — See Canvassers. See also Agency, 2 — Saving Clause, 4, 5, 7. BURDEN or PROOF. Corrupt practice proved — Onus fu to siiving clause.] — See Disqualifi- cation OF Candidate, 3. CANDIDATES. Refusal of trial Judges to award seat to defeated candidate — Non- intfivfrence by appellate C&urt.] — See Appeal, 3. Personal expenses of candidate — Returnof — Treating hy candidate.]— See Saving Clause, 4. Candidate treating on same even- ing as meeting held — Habit of treat- ing.] — 6'ee Treating, 2. See also Disqualification of Candidate, 1, 2, 3. CANVASSERS. Paying canvassers — Corrupt prac- tice.] — Certain persons were paid as canvas.sers in behalf of the respon- dent : — Held, not a corrupt practice. Lennox (Provincial), 41. CANVASSING. See Agency, 8. 608 DIGEST OF CASES. OASES. Dumjannon Case, 3 O'M, & H. 101, referred to and followed.J--»S'ee Agioncy, 3. East Simcoe Gnae, 1 E. C. 291, fulloweil.]— 6ee Saving Clause, 8. Harwich Case, 3 O'M. & H. GO, distinguished.] — A.S'ee Aokncy, 4. Lincoln Case, II. E. C. 391, com- mented on.] — (S'fic AoKNCV, 4. Londonderrji Case, 1 O'M. & H. 278, referred to uud followed.] — iSee Agency, 3. Maude v. Lowley, L. R. 9 0. P. 165, followed.] — See Plkadino, 2. Monck Case, H. E. C. 154 ; 32 U. C. H. 147, distingnished.] — See Pleading, 2. North Ontario Case, H. E. C. at pp. 317, 323, followed.] — 6'ee AOKNCY, 7. Preticott Case, 1 E. C. 88, followed.] — Sm Disqualification of Candi- date, 3. Welland Case, H. E. C. 198, fol- lowed.] — Sec Costs, 1. West Simcoe Case, 1 E. C. 153, reft^rred to and followed.] — See Saving Clause, 7. CERTIFICATE OF TRIAL JUDGES. See Disqualification of Candi- date, 2. COMMITTEES. See Agency, 1, 7, 10 — Meetings, 4. CONVENTIONS. See Agency, 4, 5. CORRUPT PRACTICES. R. S. 0. 1877 ch. 10, secx. 17 J,, - Summary trial of persons f/aitty of corrupt jiraclices at electioiis — No appeal jrom, decision of Court —R. S. 0. 1877 ch. 11, sees. 63 et scq., not applicable.^ — S'ee Appeai-, 4. Knowledge of candidate that cor- rupt practices likely to be committed — JJurden oj proof. '\ — See Disquali- fication OF Candidate, 3. See also Agency — Agents — Aliens — Amendment — Appeal — Betting — Bribery — Canvasskus — Costs — Disqualification of Can- didate — Fakmeus' Sons — HiuiNa Vehicles — Intimidation — Meet- ings — Petition — I'leadino — Re- FUESIIMESTS — SaVIXO CLAUSE — TRA- VELLING Expenses — Treating. COSTS. 1. Distribution of costs according to event — Saving clause, R. S. 0. 1877 ch. 10, .sec.'iJ^.]— Where one corrn[)t act by an agent was estab- lished, but the petition was dismissed by virtue of the saving clause, R. S. 0. 1877 ch. 10, sec. 159 :— Held, following The Welland Case, H. E. C. 198, that the respondent should pay the costs of the petition and trial, but just to the same extent as if the charge of the corrupt act proved had been the only charge upon which the petition was founded ; and that the jwititioner should pay the costs of the charges upon which he failed. Prescott (Provincial), 88. DIGEST OF CASES. 6(19 2. Dutribntlon of costs according to event — Anietidmcnt.^ — Where the election was dechired void on ac- count of corrupt acts of agents ; — Held, that the petitioner waa en- titled to the general costs of the petition and trial, and the respon- dent to the costs ocofisioned by the charges in the particulars upon which ho had succeeded, and also to what- ever expenses had heen incurred hy him in regard to charges which the Court had decided could not he added by aniendinent. West iSim- coe (Provincial), i'2S. 3. Irregularities in elect!o)i.] — Held, per Boyd, C, tliat ail parties should liear their own costs of so much of the petition and trial as re- luted to tiie inegularilies of the re- turniiig-ollicer and deputy returning- othcers. A'ust iSlincue (Provincial), 291. 4. Co7'rvpt act of agent proved — Election saved under Ji, >S. 0. 1877 ch. 10, sec. 160—'' Event "—Apjjor- tionmtnt of custs.]— Where a corrupt act by an agent and certain illegal practices by other persons were proved, but the election was saved under 11. S. O. 1877 ch. 10, sec. 159:- Held, that although the respon- dent was duly elected, the costs did not follow this event, but, uniler section IGO, as if tiie event hid lieeu the seltini; aside of the election : the responilent paying the general eosts, including lull costs wliith would have been taxable if the only ciiarges had been those on which the peti- tioner had succeeded, the latter being deprived of costs in respect to the charges on which he failed, the res- pondent bearing his own costs of those charges. Welland (Provincial), 383. 5. Distribution of costs according to eveiit.^ — Where the election was declared void on account of corrupt acts of agents : — Held, that the general costs of tho petition and charges on which the pe- titioner succeeded should be paid by the respondent as if these wen? tho only charges; the costs of the charges on which the petitioner failed to bo paid by hint and set off against tho othcirs. East Northumberland (I'ro- vincial), 434. COURTS. Court for summary trial of cor- rupt practices.^ — ISee Ai'PKAL, 4. Trial of petition durinu sittings of Divisional Court.^\ — ISce Tkial op i'KTlTIOX, 2. Order fixing time for trial — Jurisdiction to make — Divisional Court — Single Court.] — iSce Tuial OF Petition, 3. DELEGATES. Political convention — Speech by ca)ididate at convention — Lnplied appoiniment of delegates as age)d)i.\ — .b'ec Agkncv, 4. Appeal by candidate for help from those present at nominating conven- tion — Authorization to canvass covers agency — Absence of repudialivn by candidate.] — iSee Agency, 5. Political convention — Nomination of ca/ndidate by — SpeecJt by candi- date.] — i'ee Agency, 8, DEPUTY RETURNING-OFFI- CERS. Political associations — Recom- mendations.] — The suggestion of 610 DIGEST OF CASES. i> - namca and ntconimendation of depu- ty returiiing-odioers l)y political asHouiationH coinnioiiU'd on and (Uk- approvjid ot. North Ontario (Pro- vincial), 1. Slid BAUiOr, 1 — Savinu C'lause,2. DISAQBEEMENT OF TRIAL JUDGES. Pimtion of case before Court of Appeal.^ — WIhto the trial Jullg<^•• disagreed, and the case was brought before the Conrt of Appeal : — llehl, }>er OsLiou, J, A., that the whole case was before the Court of Appeal on the evidence, and ought to be disposed of in all respects as on an appeal from the trial Judges. East Siincoe (Provincial), 291. Effect of disagreement of trial Judges at former election trial, as to disqiialijicatiou of candidate.] — See Disqualification of Canoidatk, 1,2. DISCRETION. iSee Appeal, 2. ti'-j DISQUALIFICATION OF OANDI- DATE. 1. E. S. 0. 1S77 eh. 10, sees. 154, 161, 162— R. S. 0. 1S77 ch. 11, sec. '2, sub-sec. 6 ; sec. 38 — Corrupt act at former election — Illegid act — Pay- ment of voters' travellinij expenses — Disagreement of trial Judges at for- mer trial — Concurrent finding of trial Judges — Disqualification of candidate as residt of former trial — Saving clause sec. 162 — Removal of dii'qualification — 47 Vic. ch. Jf., sec. JfSy (0.), not retrospective.^ — At a provincial election trial before 0am- KUON, J., and liovn, (J., Camkron, J., certified that they ditbtred in ;heir juiignionts as to whether tlur respon- dent was guilty of a corrupt piac- tice under section Kil of the Klec- tion Act, II. H. O. 1877 ch. 10, in paying or consenting to the payment of the tiavelliiig expenses of certain voters to convey them to the poll; and ho fuither certdied that the re- spondent was proved guilty of the said corrnpl jiractiee. iJoVD, C, also cenititiil as to the dill'fn .ice of opinion, ami fuither ceililicd that the responilent cdnimitteil an ilhgal act under .seciion 154 in sunctioning tht! payment ol:" voters' travelling ex- piMises at tilt! ('lection, but without any corrupt intent, and in ignorance which was iuvolimtary an^l excus- a'-le, under a belief that so long as be did not personally bear or |)ay the Slid i^.-cpi'iises. it was not illegal, and uti'ler the fullest belief tliiit the voters were bound or were willing to repay the sail expenses, or allow them to bo deducted bom their wages : — Held, by the trial Judge.s, that under 11. S. O. 1877 ch.' 11. the Judges must concur in tinding that the re-ptmdent had been gnilty ot a "corrupt practice" ; and lliai. there was sncli concnrrent finding here ; for although the tinding of liovo, C, " illeg.M % ot 5 iliere- Ithat. was that the act was an act," such illegal act under sub-section G. is made a c and that the respondent fore personallydiscjualified as there was not a concurrent find- ing uiuler the relieving clause, sec. 162, such di-qnalification was not removed ; and that this was not afTected by the Act 47 Vic. cli. 4, sec. 48, (O. ), as in this respect that Act was not retrospective. South Renfrew (Provincial), 70. DIGEST OF CASKS. 611 tlmt 11. tlie injj; that lilty t)t a ill. there vj, licre ; OYU, C, ill.-? ! 1 here- mltliat. ■eiit tiiKi- mse, sec. was not was not 2. Ji. S. 0. 1S77 ch. 10, seen, tftj,, 161, 102— It. S. 0. 1877 ch. 11, tec. S, nub-sec. 6 ; sec. 38 — Currnpt net — Illeijal act — I'ayrneiit of roif.rs' trnve/liiiff expanses — Disdijrccuiant of trial J mlijps — Concurrent Jindi ikj of triiil Judyes— liil wv'niif c/aiiyf, sec. 102 — l)is(/n(t(ijlc(iluin, re- iiioval of — lif.troHpectine Act-^" Vic. ch. Jf, sec. JtH, (0.) — Report of trial Jiultjes — Certificate — Entop- pcl.^ — A provincial election ti ial wan iieid in 188.'{, ht-fon; Oa.mkiion, J., and BoYlJ, C, win) nmdt' st-par- ntc mpoitH agrct'in;,' in voidinj; tin- elootii '1 umlei- JI. S. (). liS77 cli. 10, src. 1(11, Uy i'ea.sonof the fc-und of the prior di.squali- tication >>i the respondent : — Held, by the Court of Appeal, [Patieuson, J. A., dissenting] atiirm- ing the judgment of the trial Judges, BuRTo: .) . A., and Galt, J., that the finding that the respondent was guilty of a ciu-rupt practice was cor- rect ; and that lie was therefore per- sonallydis(|ualilied ; and, ast here whs not a concurrent iinding that he came within the relieving clause, sec. IOl', the dis(piiililication was not re- moved ; and that the amending A(!t 47 Vic. ch. 4, .sec. 48 (().). which was passed on ii-Oth March, lS84, did not apply to this case. Per OsLEK, J. A. — One joint re- port of the trial Judges under the hands of both is not essential ; but there may bo two separate reports, (^iich under the hand of one of the Judges; but Quifrc, whether the certificate under K. 8. O. 1877 ch. 11, sec. 65, of the result of the trial shoidd bo joint ; this, however, was not now open to the lespondent, fur, by his becoming a candidate at the .sub.se- (pient election, he must be t;iken to have admitted that the foriiu'r elec- tion was on some giouiid or other legularly set aside. ISoutk liutij'rt'.w (Provincial), 359. 3. Corrupt practices — Kiiowledije of candidate that such piacticen lihety to be committed — Saviiuf clanxe, H. S. O. 1877 ch. 10, sec. 102—liarroof.~\ — It appearing that a nundjer of persons visited the dis- trict, and that the object of their visit was to influence the electors by (lorrnpt means, and that theie was an orLjanized and .systematized plan to employ corrupt means to influence and carry the election in various ways, .mil that the trial Jinlges were not satisfied that the respondent was ignorant that such practices were likely to be coninntted by per.sons acting in his behalf in the conduct of the election, and found that cor- rupt practices prevailed at the elec- tion, and declined to relieve the re 612 DIGEST OF CASES. Ir-- spondent under R. S. O. 1877 ch. 10, sec. 162, of the penalties incurred by him under sec. 161, the Court of Appeal now declined to interfere with their decision; (jALT, J., Au- senting. rer Haoakty, C.J.O. — When a corrupt practice is proved, the onus is at once shifted to the respondent to bring himself within the saving clause, sec. 162. The Preacoit Election Case, ante p. 88, followed. Muskoka and Parry Sound (Provincial), 197. DIVISIONAL COURT. (See Trial of Petition, 2, 3. ESTOPPEL. See Disqualification of Candi- date, 2 — luilEGULAUlTIES AT ELEC- TION. EVIDENCE. See Agency, 1, 2. 3, 4, 5, 6, 7, 8, 10 — Amendment — Appeal, 1 — Betting— BiiiBEUV, 1, 2, 3, 5 — In- timidation — Pleading, 3. FARMERS' SONS. Srrut'meer, agency of— Wilful in- duciiitj a voter to take a, false oath — Corruht practice — Qualif cation of voters — Fanwrti' sons — Oath T. — Sees. 90 and 91 and sees. Jfl and J/) of ch. 8, R. S. C.—Scrntin)j.]—\ scrutineer appointed for a i)olling place at an election, under the writ- ten authority of a candidate, is an agent for whose illegal acts at the polling place the candidate will be answerable. The insisting by such scrutineer of the taking of the farmers' 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 endeavouring to induce the voter to take a false oath so as to amount to a corrupt practice within sees. 90 and 91 of ch. 8, R. S. C, and such corrupt practice will avoid the election under sec. 93 ; Strong and Gwynne, JJ., dissent- ing. Per Stkong. J. — That reading sec. 41 in conjunction with sec. 4-5, .sub-sec. 2, and the oath T. in sche- diile A. of ch. 8, K. S. C, an inquiry on a .scrutiny as to the qualitication of a farmer's sim at the time of vot- ing is admissible, and if it is .shewn that a larger number of unqualified farmers' sons' votes than the ma- jority were admitted, the election will be void. Ilaldimand (Domi- ni(m), 529. HIRING VEHICLES. 1. R. S. 0. 1877 ch. 10, sec.^. 15,1, 15 4 — Voters or 7iou-voters.'\ — Held, liy P TTEitsoN, J. A., and Ferguson, J., that what is referred to in R. S. O. 1877 ch. 10, see. lo4, is hiring vehiclos to convey persons with the intention of thoir voting, and the qualification of such ])orsons, or their I'iuht to \()te, isi'.nniaterial, whereas section 1.V5 requires persons therein referred to to he voter.-^. Maskokn and I'arri/ Sound (Provincial), 197. 2. Conveying voters to poll — Livery stable-keepers — Partnership — Corrupt practice — A*. S. C. ch. 8, DTGEST OF CASES. 618 IS a ecs. 15J, IMd, tfUISOM, in R. S. hiring »vith tlie and the or their whereas therein Hfiiskokci .1), 197. ■jinll — •tnership C. ch. 8, sees. 88, 91.] — W., an agent of the respondent, was in partnership as n livery -stable keeper with G. Under an agreement between them if either partner took out carriages for his own use lie was to pay his co-partuer half liire for them. On election day W. took out carriages of the part- nership iinil conveyed voters to the poll, and afterwards, after the elec- tion, duly accounted to G. for half liire for the same : — Held, that this constituted a cor- rupt practice under R. S. C. ch. 8, sees. 88, 91, being a hiring of car- riages to carry voters to the poll, and that the election of the resjjon- dent was void. U^est Middlesex (Dominion), 405. See Agenx'Y, 5 — Thavkllixg Ex- PEXSKS, 1, HOUSEHOLDERS. See (jNORGAXIZliD TjWNSUIPS. HUSBAND AND WIFE. See BuiBKUY, 2, 4. ILLEGAL PRACTICES. See Saving Clause, 2, 0, 7, 8. ILLITERATE VOTERS- Secreci/ of ballot — Duties ofdepvtji returHirKj-ojficer as to — Mavkinn ballot jHiper in presence of other per- sons.']— See Ballot, 1. as a boarding-house, a house of a lumber company rent free, and was paid for boarding the men by the men themselves, but through the company retaining the amount thereof out of their wages. C. acted as scruti- neer for the defeated candidate, and while so acting, l)ut after he had voted, was sent for by P., the com- pany's manager, an agent of the respondent, and given to and«;rstand that his .so acting was not satisfac- tory to the company and against their interests. No thrtNil of any kind was made. C. returned to the polling place and continued to act, but on reflection, about 12 o'clock, lie ceased to do so. (J. had can- vassed the men at the boarding- house for the det'eateil candidate, for whom some had promised to vote, and a good many of the men had voted iietbi'e he left. It did not ap- pear that what P. had said to C. was communicated to any voter, or that any voter was influenced thereby: — Held, tliat a charge of intimida- tion was not proved. After the election C. received no- tice of tisniissal from the company, and was informed by P. that it was for talking too much in the tdection about one of the hands being sent i away to prevent his voting. It was ! charu'ed that C. was dismissed on ac- count of his having voted at the election : — Udd, that th(! charge was not ])roved. East Simcoe (Provincial), 291. INTIMIDATION. Servants of company — Evidence — Dismissal of seruant.] — C occupied 79 — VOL. I. E.C. INTOXICATING LIQUORS. See Agexcy, 4, G — Rkfresh- MKXTs— -Saving Clause, 3 — Treat- ing. i ' G14 DIGEST OF CASES. • s I, 5 « IRREaULARITIES AT ELEC- TION. Delay in opening j)oll—-Insuffi- ciencif of ballot papers — Delay — Omission to take oath of secrecy — lie- ault not a^ected — Relief luider R. S. 0. 1877 ch. 10, sec. 197— Holding nomination after time fixed therefor —R. S. 0. 1877 ch. 10, sec. 33- Imperative or directory — Eittoppd.^ ( 1 ) At a polling sub-division, tin ougit a series of mischances, and without any wilful default of the otKcials, the poll was not opened till between hiilf-pust one and two, whereby it was charged a number of electors were depiived of voting. The petitioner failed to piove the charge, while, if the onus of doing so were on tlie re- spondent, he shewed there was am- ple time to poll all tiie votes at that sub-division, and that all who desired to vote could have done so ; ['!) ilie supply of ballot papers at a polling subdivision, through a blundt^r of the otKcials, ran out, and, while wait- ing for instructions, the poll was closed for half-an-hour, whereby, it was cliarged, some seventeen voteis were prevented from voting ; but as a matter of fact none of these \oters were prejudiced thereby; {.'}) The deputy returning-otiicer and sul)- onlinate officers at a polling suli-'li- vision, through improvidence, but not ni(d(% fide,A\{\ not make the *h'C- laralion of secrecy required by sec. 147 of 11. S. O. 1877 ch. lo'; but the result was not affected there- by:- Held, by the trial Judges, Boyd, C, and Camekov, J., tliat as these giounds of irregularity did not per se atfect the result, thev came within the protection of sec. 11)7, and did not avoid the election. Under sec. 33 the returningoffi- cer is to fix the place and time of nomination, sucli time to be between eleven a.ra. and t-vo p.m. of the day fixed therefor. The retnrn- ing-officer, who lived at B., owing to inevitable accident arising from the train being blocked with snow, did not reach O., the place of nomination, till two p.m., and the hustings until ten minutes afterwards. The two candidates who contOisted the con- stituency were then nominated in the presence of a large number of electors, including the petitioner, who made no protest. It did not appear that any injury had been cau.sed thert-by : — Per Boyd, C. — The requirement wiis merely directory or regulative; non-compliance theiewiih might or not be fatal, and so avoid the election, according to circum.staiices ; and as no one was prejudiced, it could have no fatal etlect. In any event the petitioner, under the circunisiances, was estopped from laising the oljection ; and Semble, he v\as also precluded from raising tli(! objection l»y reason <.)f, as it ap- |ieari'il, his claiming iIk; seat foi' the tletVated canilidatf, thus ratifying .and adopting what was done at the election. Pir (Jamkuon, J.— Tlie require- ment was iuiptrative, and non-com- pliance therewith avoided the elec- tion ; and the petitioner was not est(ip]ted from raising the objection. On appeal to the (Jourtof Apjieal, the juiignient proceeded on another ground. I'er Burton, J. A.— -The point was now covered by sec. 48 of 47 Vie. ch. 4, (O.) Per Pattkkson, J. A. — Quare, wht'tlier sec. 48 was intended to ap- ply to this point, this being a matter .specially dealt with by sec. ID of R. 8. (). iS77 ell. 10. Jutxt Simcoe (Provincial), :i91. See JiALLOT, 1 — Savincj Clause, 2. DIGEST OF CASES. 615 of the retiirn- ving to oni the ow, did ination, s^s until he two je coll- ated in ml ml" of tiiioiier, (lid not ad been liiement julative ; uii;,'ht void the iistaiices ; t'judiced, Vect. In inder tlie ,ed from I Semhle, II vitising as it aj)- nt for tlie vatilying ue at the requiie- non-com- the elec- was not ,l>jection. another 'he point 48 of 47 —Quare, (hI to iip- r a matter " 15 of H. Sinicoe IKREQULABITIES IN VOTERS' LISTS. See Voters' Lists. d ,LAU8E, ENOWLEDQE. Corrupt act committed without knowleJ(/e or consent of the candi- date— R. S. 0. 1S77 ch. 10, sc. 161.] — See Rkfueshmknts, 1. See also Agency, 3. — Aliens. MAJORITY. See Saving Clause, 1. MASTER AND SERVANT. See Intimidation. MEETINGS. ^. R. S. 0. 1877 ch. 10, sec. 151— " Meetimj of electors" — Liberal asso- ciation — Treating.] — An association formed " for the jiieater ditfusion of liberal piiuciples and the social and intellectual improvement of its mem- bers," being prevented by an acci- dent from meeting at the town hail, held a meeting in a tavern, and was treated by the i-espondent: — Held, not a meeting of electors within sec. 151 of R. S. O. 1877 ch 10. North Ontario (Provin- cial), 1. 2. A'. 6'. 0. 1877 ch. 10, sec. lol — " Meeting of electors " — I'reatiny.] — A meeting of some thirty-tive or forty electors had assembled for the purpose of proiiioting the election. During the meeting un agent of the respondent went into an adjoining room with four or live friends and treated and was treated by them : — Held, by the Court of Appeal, not to be a furnishing of entertainment " to a meeting of electors as- embled," etc., under sec. 151, R. S. O. 1877 ch. 10. Per OsLER, J A — The question must always be, whether the enter- tainment has been furni^I.tid to the general body of t!>e electors compos- ing such meeting, whetiier before, during, or after the business of the meeting, and while as a body such elector.s remain together at the place of meeting or elsewhere. Vrescolt (Provincial), 88. 3. R. S. 0. 1877 ch. 10, sec. 151 — "Meeting of electors" — Tredthig bji candidate after speaking over — Involuntarij or excusable igiicrauce.] — It appeared that on Feliruary 15th the respondent was clinsen by a convention of his party as their candidate. On February 23rd a public meeting was helil by him in a room in a hotel, which meeting was composed of almnt sixteen per- sons, some belonging to the opposite political party. A chairm.m was appointed and the respondent ad- dressed the meeting, as did others also. As soon as the proceedings closed, i.e., when the speaking was over, nearly all present crossed the hall, and went into the liMrinom. The respondent followed, first iiivit- iuii the few who remained to join them, and then in the barroom in- vited taem to drink, which they ilid, he paying for the liquor. On Feb- ruary 27th the nomination took place and the polling on March 13th : — IJeli (at the trial and by the Court of Ap|)eal, Galt, J., dissenting), that tins was a violation of R. S. O. 1877 ch. 10, sec. 151. 616 DIGEST OF CASES. Per Hagarty, C. J. 0., and Burton, J. A.— R. S. O. 1877 ch. 10, sec. 151, refers clearly to a meet- ing of electors, whether the formali- ties of appointing a chairman or secretaiy are observed or not ; Jle/d, also (Galt, J., dissenting) that, tiiough the act of treating appeared to havc^ been committed in ignorance tliat it was a violation of the statute, it did notapjiear to have been coninutted in an ignorance whicli was involuntary or excusable. Per BuiiTON,J. A. — Under the pre- sent cii.ictnient in R. 8. U. 1877 ch. 10, s(!L. 151, it need not be shewn that the nieeting in question was assem- bled for [ironioting the election of the candidate furnishing the enter- taiunieiit, but the meeting referred to is a meeting asseml)led for the purjiose of piomoting the election of a representative of the electoral dis- trict. For Galt, J. — Itefieshment was not furnished to the meeting while it was assemljled, and therefore there was no otlence under R. S. O. 1877 ch. 10, sec. lol. The meeting was to all intents and purposes at ■in end, and moreover, even conceding the corru[)t act, it was done in ignorance which was involuntary and excus- able. Masknhd. (1)1(1 Vamj Sound (Provincial), 197. 4. A'. -V. 0. 1S77 ch. 10, ficc. IGl — " Mnefin;/ of p.lcctortt" — Local com- mitfci', inrefhujs — Trf.(itivff.~\ — On ditferent occasions a few members of one of the i-espondent"s local com- mittees met together at different taverns, to go over voters' lists and arrange as to doid)tf ul votes, and on each occasion licpior was furnished to the committee men thus engaged, at the expense of different agents of the respondent ; — Held, per iJoYD, C, that such com- mittee meetings were not " meet^ ings of electors," within the mean- ing of sec. 151 of the Act; per Cameron, J., that sec. 151 was specially directed against the treat- ing of such committee meetings. On appeal : — Held, by the Court of Appeal, Patteusox, J. A., dissenting, that such meetings were within the mean- ing of the section. East Middlesex (Provincial), 250. Party association for constituency — Covunittee vieetliKjs — Membership — Aiithority — Jiec(i(j)iif.ion — Corrupt practices.] — See Agency, 7. See also Agency, 8 — Pleading, 3 — Treating, 2. NOMINATION. See Irregularities at Election. NOTICE. See Amendment. NOTICE OF MOTION. Discretion to dispense rvith.] — See Trial of Petition, 3, OATHS. See Farmers' Sons. PARTICULARS. See Amendment — Appeal, 2 — Pleading, 2, 3, DIGEST OF CASES. 6i: PARTNERSHIP. See Hiring Vehicles, 2. PENAL STATUTE. JSoe Ali: .s. PERSONATION. See Saving Clause, 4. PETITION. Unauthorized alteration in via- terlal jxirt of election petition after filimj — Alteration hi/ clerks of agent of j}etitioner' s solicitor — Spoliators — Not ai/ents — Service in altered state — Ratification — AmendinentJ] — After an election petition had been liletl, two clerks of the Toronto agents of the solicitor for the petitioner were allowed to compare it with an engrossed copy, and, finding that the two were ditierent, they altered the tiled petition so as to correspond with the coj)y, adding in one place the word " treating," which had the effect of introducing a charge of a corru])t practice not in the original. The copy served upon the respon- dent after this alteration coires- j)ouded with the petition as altered. It was not shewn and it was denied that the petitioner knew of the alteration: — Held, that the addition of the word " treating " was an alteration in a material part ; but that the clerks in doing what they did were not the agents of the petitioner or his solicitor. As the document was in the possession of the Court, such an alteration, made by persons wlio were mere strangers or spoliators, had not the effect of destroying it. The service of the ))etition in its altered condition could not, in the absence of knowledge of the altera- tion, be treated as a latitication by the petitioner. It was ordered that the petition should be restored to its original state, and that the copy seived should be amended to conform with the pe- tition as it was when tiled. Lin- coln and Nin'jara (Dominion), 428. See Amendment — Pleading, 1, '2, 3 — Service ok Petition — Tuial of Petition, 1, 2, 3. PLEADING. 1. Alleyatioa of corrupt practices —It. S. 0. 1S77 ch. 10, srcs. Ifjli, iJJ.] — An aliegation in the petition " that the nisjmndent was by iiim- self, etc., guilty of corrupt ]>ractices, as defined by the Controverted Elec- tions' Act of Ontario," sufliciently chai'ges the commission of corrupt practices under sees. 1.52 and 153 of "Tlie Election Act," 11. S. U. 1877 ch. 10. North Ontario (Provin- cial), 1. 2. Form of petition — CJianje in- cluded in particulars bat .lot in petition — Char(je of corrupt practice under R. S. 6. 1S77 ch. 10, sec. 15o~Girint) refreshment to voters on polliny-ddjj — Affidavit accoinpany- im/ petition — '■'■Treatiny" does not cover corrupt jjractice under sec. 15S — No poicer to amend petition.^ — The petitioner in his particulars charged the respondent with giving or causing to be given meat, drink, and refreshment to voters on ])olling- day on account of their having voted or being about to vote, being a cor- rupt practice under 11. S. (J. 1877 IH 618 DIGEST OF CASES. 3' I % K ' }■ m ,H ch. 10, sec. 153. The petition itself, however, merely charged that the respondent " before, during, at, and after the said election, was by his agents and other persons on his behalf guilty of corrupt practices as dt^liiu'd by the Controverted Elec- tions' Act of Ontario," K. S. O. 1877 ch. 11, sec. 2 :— Ilehl (at the trial), that this form of petition was objectionable, being hardly reconcilable with the inten- tion of the legislature in recjniring petitioners tv file an affidavit with the petition 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, nioi-eovei-, the charge bei»)g only by reference to a statute, the affidavit in such ca.se could only be intelligently and honestly made by one who had informed himself of the provisions of the statute and applied to them some definite construction, and in any event the deponent would only be swearing to his own con- struction of the statute, without stating what that construction was : — Held, further, that inasmuch as " corruj)t j)ractices," so far as de- fined at all by R. S. O. 1877 ch. 11, were declared to mean " bribery, treating, and undue influence, or any of such offences, as defined by this or any other Act of the legislature, or recognized by the common law of the Parliament of England," and also the violation of certain vction up- 5;i, as he fcllowed to nt to his leal of the judgment )ri of the ling it un- trial, that t be allow- 11, sec. 9, Court has r such an ling sec. 2, tijat Act, lent of an .9 C. P. on for the County of U. C. R. est Himcoe (J — Admis' id evi'lence to meet- j)er Boyd, it particu- g the fur- eetings of l)le under he petition imself and y of " tieut- ifrovincial), or POLITIOAL ASSOCIATIONS. Non-existence of political associa- tion ilk constitaencij — Absence of ori/auiz'ition of parti/ supporting candilate — Evidence of of/ency — Activity — liecofnilion — Attendance at committee nu'eling — Scrutineer.^ — tiee AoKNCY, 10. Depnty retuminy-officers — Recom- mendations.] — -.yee Dkputy IIktukn- ing-Officeus. /?. .S'. 0. 1S77 ch. 10, sec. 151 — " Meetiny of el.pcjors "- Ti'eatiny.]— See Meetings, 1. See also Agency, 7. QUALIFICATION OF VOTERS- Ji. S. 0. 1877 ch. 10, sec^. 153, 15 Jf — liiriny vi'liicles — Voters orno7i- vuters] — See Hihing Vehicles. 1. Sec also Faumkrs' Sons — Unor- ganized Townships. RAILWAY PASSES. See TllAVELLING E.XPENSES, 2. RATIFICATION See Petition. REFRESHMENTS. 1. Giving refreshment to voters on poUin(/-d(iy — Corrupt act — Election void—R. 'S. 0. 1877 ch. 10, sec. 158 — Saving clause, sec. 159 — Absence of knowledge on part of respondent — Sec. 161.] — It appeared in the evi- dence that at the place of polling the respondent's tirm had a house in connection with their mills, where their workmen were lioaided, and where the respondent l.imself had rooms. A short time before (he election. Mrs. B , who had formerly been honsek(!eper of the said house, had liecome tenant of it. or was al- lowed to occupy it, and have tlie use of the fui Diture, and wa.s paid a cer- tain sum per week or nioiul\ for eacli man !)oarding there, and a sum per day for casual boarders, and she was in this position at the time of the election. On polling-day, H., a nephew and partner of the lespon- dent, who spent the day at the polling- place, told voters that if they went to the said boarding-house they could warm tlx'mselves and wuuld tind dinner if they wished it, and moat and drink were accordingly caused to be given to the voters at the boarding-house by H , who was clearly the respondent's agent throughout : — Held (at the trial), that the voters having come to the ])lace for the )airpose of v. ting, and that litung their errand there, and the election being the occasion on which the provision was made and the hospi- tality extended to them, the act in question was done on account of each man so entertained " having voted or lieing about to vote," and inasmuch as it was impossible to say that the result may not have been afF»>oted bv the al)ove offer of hospitality (R. 'S. O. 1877 oh. 10, see. 159), the election would have l)eon void by reason theieof under sec. ]o8, had the matter l)een pio- perly charged in the petition. {See Pleading, 2). Held, however, that the evidence did not shew that the corrupt act was committed with the actual knowledge and consent of the re- spondent, and therefore he had not 620 DIGEST OF CASES. \i incurred the j)enal consequences of R. 8. O. 1877 ch. 10, sec. IGl. West Simcoe (Provincial), 128. 2. Cicim/ drink to votcrn on poll- iny-daij — Xo discrimination an to politicK.] — S., being an agent of the respondent, on tlie election clay brought some whiskey to a black- smith shop near a \)o\\, being a place where the neighbours were in tlie habit of conicrcffiitinj' to warm them- selves, etc., there being no tavern or public-house in the neighbourliood, and treated those who were present (most of them being voters) without reference to their voting, and with- out distinction as to whicli side they supported : — // d, not a corrupt practice. Len- iicrx (Provincial), 4l. 3. R. S. 0. 1877 i(ls the selling or giving of liquor at any time during the polling-day, under a penalty of tine or imprison- ment, and tlie srane Act provides tliat any violation of that section during the hours appointed for poll- ing is a corrupt practice. Held, (at the trial), that a viola- tion of the section duiing Ihe polling boius by an agent of the candidate must be conclusively presumed to have been intended corruptly to in- fluence tlie election. Froscott (Pro- vincial), 88. 4. O^ffer of refreshment — R. S. 0. 1887 ch. 9, sec. loo — Valuable con- sideration — Sec. 151, sub-sec. (a).] — Two agents of the respondent went for a voter, having a flask of brandy in their conveyance. The voter, having said he was unwell, was asked if he would have a drink, which tliC trial Judges lield, meant a drink from the flask, and which he declined: — Held, that this ojfer did not fall within the provisions of sec. 155, li. S. O. 1887 ch. 9, as there was no "giving or causing to be given" : — //eld, also, that it did not come witliin sec. 151, sub-sec. (a), a drink not being a valuable consideration. Hamilton (Provincial), 499. See Pleading, 2 — Tbeating, i -., o. REJECTED BALLOT PAPERS. See Ballot, 2. REPORT OF TRIAL JUDGES. Separate reports — Joint certificate ~R. S. 0. 1877 ch. 11, sec. '05— Estoppel] — See Disqualu'ICATION OF Candidate, 2. RETURNS. Return oj personal expenses by candidate.] — See Saving Clause, 4. SAVING CLAUSE. 1. R. S. 0. 1877 ch. 10, sec. 159 — Single corrupt act — Majority.] — Held, under all the circumstances of the case, there being only a single corrupt act proved, that the case was a proper one for the application of B. S. O. 1877 ch. lU, sec. 159, though the majority was only twenty; and that the election should not be avoided. North Ontario (Provin- cial), 1. DIGEST OF CASES. 621 2. R. S. 0. 1877 ch. 10, sex. loii — Illeijal pructu-iis — h-m/tdaritias — of deputy returuUitj-oJliccr at poll.^ — Wliere there liad been certain irregularities uta poUing-placo in tlie niiinner of nun king tiie l)aliot-pai)er.s of illiterate voters : — Held, that the irregularities could not, by themselves, be said to have atlected the election ; but Quara, wJK.'ther in conjunction with a corrupt act found to have been couunitted by an agent of the candidate, they could undcM" 1{. S. (). 1877 cii. 10 sec. 151), conjointly, be said to have done so : — IleM, (at the trial) that the irregu- larities in question \veie not "illegal ju'actices " as mentioned iu that s(!C- tiun, but were rathei' tlefaults than acts or practices, and entii'cly uncon- nected with corrujit practices. What is referred to in sec 159 is .systema- tic illegality, whether anuninting to coiruption or falling short of it, to such an extent that the particular acts which are proved may be rea- .sonably considered merely to be instances in connection with the general system of corruption or illegality which has been prevalent d\iring the contest. Prescutt (Pro- vincial), 88. 3. A'. .S'. 0. 1877 ch. 10, sec. loO— Self ill f/ liquor on poUiiui-8 — " TrijliiKj " construction of— Major- ity — Scrutiny — Power ofsaviny elec- tion to he cautiously exercised, especi- ally hy appellate Court.] — Where an agent of the respondent sold or gave drink at his tavern on polling- day :— Held, that this corrupt act was not shewn to be of such trifling na- ture and extent as to come within 80 — VOL. I. E.G. R. wS. O. 1877 ch. 10, sec. 159; and the (election was declared void under s(!c. 158. Per Pattkiison, J. A., and Fkrcju- SON, J., that the obj(!ct and ))urpose of 1{. S. O. IS77 ch. 10, sec. 159, do not re(|uire anything in the shape of an atteui]>t to estiniatt" the nuni- Iier of votes which can Ix' shinvn or surmised to have; been affected by the corrupt act in (|ncstion, and to balance that against the a(;tual ma- jority. Although, no doubt, the word ■' trilling " must be construed in i^ach case with sonui reference" to the majority, particularly when con- sidering the exient of th(> corrupt acts, tli(! Coiu't is not called upon to enter into a quasi scrutiny for tlu; purposes of this section. Per Si'UAG(iK, C. .1. O. - Tlu! power of saving an election under R. .S. (). 1877 cii. 10, sec. 15!), should be exercised very cautiously, and a fortiori by fh*; Judges of the ai>pel- late Court where the rota .Judges have deemed tli<' case to be not pro- per for tilt! application of the power given 1)\ this. section of tlu^ Act. West Siineoe (Provincial), 1l'8. 4. R. .S. (>. 1877 ch. 10, sec. 150 — Corru/it praeiic.es ■ — Ptrihevy hy ayents— PersoiaUioit — (Utudhlatc's personal, expenses — Return of — ■ Treatimi hy cawliilale —Ahsence of chief aijeid from trial. \ — D., an agent of th(^ respondt-nt, bribed M., a voter, liy payment of money. The same I), gave one !>., alter he had voted, $1, which both D. and L. said was a loan and not a gift : — Held, as to the iirst payment, per r)OVD, C, and Camkkon, J., a cor- rupt practice ; as to the latter ])ay- ment, per Boyd, C, not a cori-upt practice, the evidence not connecting the payment with the vote given ; j)er Camekon, J., that it did. !:i 622 DIGESI* OF fJASES. I i: H., a voter, was paid $4 V)y an agent oftJie respondent for one day's work posting bills : — Held, per Jjoyo, C, not u corrupt practic(i ; jihi' (Jamkron, J., an ini- reasoniibly large payment for the work done, though not siitKciciit, if it were the only charge, to avoiil tlie election. Two cases of personation were estiildislicd, but no agent ot" the re- spondent was a party to either : — HpM, per lioYO, C., that but one cori'upt pntctiee was proved, and that, in view of the provisions of sec. 159 of H. S. O. 1877 oh. 10, that one was not sufficient to avoid the return. I/dil, also per BoYD, C, that inas- much as the respondent's personal expenses had not amounted to flOO. and as. during the canvass, although he had treated friends, he had not done so to any greater extent than had previously l)een his habit, neither liis ])ersonal conduct during the elec- tion, nor the absence from the trial of one of his chief agents, against whom consideralile suspicion was raised by tlni evidence, ought to pre- vent the Court from applying the provisions of sec. 15!) to the circum- stances of this case. ffdd, per Cameron, J. .that though nothing corrupt or unusual was proved as to the lespondent's expen- ses or treating, he liad not properly returned his personal expenses, .\ — U. (an agent) connnitted two clearly proved acts of brilteiy ; F. J), iiiid VV. 1). (agents) entered into a scheme for violating the secrecy ot'tlie election by inducing voters to ■exhiliil, tiieir ballots, fifter they were marked, at a window; and the evi- dence developed at least two other acts of bribery, though not by agents, and some susjjicious circuni- stiinccs ; but all these were without tlK! kiio\vl(!dge or consent of the respondent. The vote polled was about l-j.OOO, out of which there was a majority of fifty-one for the re- .spondent : — Held, that the election was void because of the corrupt acts of R. ; and in view of the conduct and de- tails of the contest, the saving pro- visions of sec. 159 of the Election Act, E. S. O. 1877 oh. 10, could not be applied. Per Curiam. — The scheme for vio- lating the secrecy of the ballot was an illegal act under sec. 146, and had no little uignilirauce when taken in connection with the proved acts of bribery. Inestintating the appli- cation of sec. 159 it was impossi- ble to leave out of sight the illegal praetice.s under sec. 140. The WetitSiincueCase, 1 K.C. l.')3, referred to and followed. J^Jiist Northumberland (Provincial), 434. 8. It. S. 0. 1SS7 ch. 0, ncc. J6.1— Corrupt practices — Illegal practices — ^^ Such triJliiKj nature" — ^^ Such trijliug extent :" — I/ehl, as to the acts of two paid ag(!nts in voting, that had they stood alone, not being part of any comprehensive schenu', the Court wouhl have hesitated be- fore deciding that they did not fall within section 103, in which case the election would not have lieen avoided ; but, following the Uast Simcoe Case, 1 K. C. 291, that in- ducing a number of 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 aflecLed by it. Had the corrupt practice indicated not been sufli- cient of itself to avoid the election, the two other corrupt practices j)roved, toge*^^her with certain other illegal practices committed by a person not an agent of th(^ respon- dent, the evidence as to which was inicoutradicted, would have sufficed. Hamilton (Provincial), 499. R. S. 0. 1877 ch. 10, sec. 162.]— See Disqualification of Candi- date, 1, 2, 3. R. S. 0. 1877 ch. 10, sec. 159.]— See Refreshments, 1. DIGEST OF CASES. 625 SCRUTINEERS. Illegal acta at pollinfj place — Ayenci/.] — See Aokncy, 1). Candidate aimueralde f'm' iUrgal acts atpoH!)iij/)lorc u/'hiti Hcrulineer.] — Sec Farm Kits' Sons. See also A(ienoy, 10. SCRUTINY. See Faumkus' Sons — Tkndeijed Ballot. in tho meaninff of the section, no order was necossary, iiiul the liict that the service in this case was iiiado utiiler an onlcrdid not make it any the less a j^ood service, llaldiinand ( Dominion j, 4(^0. S>'e ri/riTioN. SOLICITOR'S CLERKS. See PiMiTioN. SECRECY OF BALLOT. Scheme for riola/lni/ necn^ci/ of bal/ut.] — See Saving Clausk, 7. See also Ballot, 1, 2 — Inuixiu- LARITIKS AT ElECTIOX. SERVICE OF PETITION. Order for sid>sf/'Uuliont Ik^ may vote hy tendered ballot. East Dur- ham (Piovincial), 48[). TIME. R. S. C. ch. 9, Kecs. 3J. 33, con- strucliou of- — Time for trial of peti- ti n — Extcndiiuj t of the respondent, with his own con- veyance brought a voter tioiu N. to his own house, where he remained as a guest until after the polling day :— DIGEST Oi^ CASES. 027 ■sees. IfeU, not. within either sec. 153 or lot of R. S. O. 1877 ch. 10. North Ontario (Provincial), I. 2. A'. .S-. 0. 1S77 ch. 10, sec. 15Jf — Railwaji passes — Corrupt prac- tices.] — Til*! ohtiiiiiing l)y an agent of a caiididati' from tlie president of a lailway coniiiany six jtasses, for which iiotliing had been or was ever intended to he paid, tlnee of which were useil in bringing as many voters to tlie poll is not a conn[)t practice wiiliin tlie meaning of 11. S. O. 1877 ch. 10. sec. 154. The mischievons ell'ects that might aiis(! from siu;h a practice on the part of railway companies remarked U|)on. iSoath Victoria (Provincial), 182. 3. Corrupt practice — Inducing to vote by loan or tjl/'t of' mojiei/ — En- ahlimi to vote — Pai/mod of travelliiKj e:rpeiis''s— II. S. ('. ch. 8, sec. 84, sicb- sec. {(i) — Jb., sec. 88^. — Where the Hgtnt of a < iiiididate asked a voter if he intended to vote, and tlie vo- ter said he did not tlunk so, as he coidd not spare tlio money to go, Imt that if he went he would not vote for tlie opposing candidate, and the agent tlieieu|ioii h'nt him ihecostof a return ticket; and the evidence shewed tliat tlie transaction was a bund Jill I', loan and not a gift, and was not made with the intention of injlnenciitf/ the vote in favour of the piincipMl, and that the money was re[)aid shortly after the election with- out any demand made therefor: — I'/eUI, that tilt above «lid not con- stitute a corrupt practice under K. S. C ch. 8, .sec. 84, sub-sec. {a}, or sec. 88. The voter had the will to go and vote, and to v«)te for the agent's prin- cipal, but he had not the means to enable him to do so, and these were furnished to hiiu by the agent, but as a bo7i(l fide loan, not as a cift. Thus he was not induced but merely enabled to vote by a temporary loan, and no breach of the law contained in the aliove sections was eommitted. East Ehjin (Dominion), 475. 4. Promise of money for e.xpe)isi's to induce voter to go away aud than refraiu from voting — Svhsequod payment by brother of promisor — Absence of voter on jiof/iibg day — Currnpf jn'(ictice.~\ — An election pe- tition charged that U., an agent of the candidate who.se election was at- taiked, corruptly ofleied aud paid 83 to induce a voter to refrain from voting. The eviden^'e shewed that H. >va.s in the habit of assisting this particular voter, and that being told by the voter that he contem- plated going away from home on a visit a few days before the election, and being away on election day, H. promised him %f) towards paying his expenses. Shortly after tin; 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 : — y/e/f/, that the of^er and payineiit of the $5 formed one transation and constituted a corrupt pr^ictice under the Election xVct. llald'unand {\)o- minion), 572. See DisQUALiFiCATioy o"^ Ca.ndi- DATK, 1, 2— Saving Clausk, G. TREATING. 1. Treating voter before he voti's.] — On the morning of the polling day, S. met McN. in a hotel, and asked him to vote for the respon- dent, to which he agreed ; he then took him to hi^ (S.'s) house, and ms DIGEST OF CASES. im afterwarfls to a tiwern where he treated him, and tlien to the poll where he voted :-- Held, a 'orrupt act. Xnrlh On- tario (Provincial), 1. 2. CaiuHihiti' fredflii;/ on n'lme evcniiKj tis iwi'tiixj held — llahit of treatin'j.] — The re^^poiulent, during his can\assand ou tin' same eveiiing tliat IX ]ml)lic meeting was lield for the ))ur|)o,se of promoting; tlie elec- tion, treated a- 3nnn!>er of jiersons, many of whom were voters, collected in a barroom. It was shewn that it was not the respondent's LCeneral liabit to treat, that all present Avere invited to diink, and that he had not treated more than twice or perhaps thiee times dnrincj the can- vass : — I/e/d, not a corrupt practice, and tliat in view of the ordinary custom of treatinii in the country, it might be regarded moie as an expression of good feeling to those wjio were snpporting liim. Xortli Ontario (Provincial), 1. 3. Motive for tri'ntin(j.'\ — An agent of the res]i()nd"nt treated a voter by gi\ ing him a glass ol' whiskey. Ac- coi'ding to the voters account, it was nothing mcire than an act of good fellowslii[> ; while, according to the agents accounr. the voter was not feeling well, and tlie whiskey was given in coiise(|ueiiee : — Jfehl, not a corrupt act so as to avoid the eli''2. (Keversi'd in Supri'ine Court of Canaila.i See Meetinc.8. 1, 2, .'?, 4 ri-EAD- ING, 2, 3 — PiEKKrCSHMKNTS. 1, 2, 3, 4 — Saving Clause, \. TRIAL JUDGES. See Appeal, 1, 2, 3 — Ballot, 2 — Dlsagueemext of Tuial Judges — Disqualieication of Candidate, 1,2. TRIAL OF PETITION. 1. "Dominion Controverted Elec- tions' Act," K. S. C. cli. 9, sees. 32, ■j-j, construction of — Time for trial of petition— E.di'ndiiifi time.\ — Tiie jM'tition was presented on the Gth May, 1887, dm-ing a session of Par- liament which ended on 2.')rd June, ! and issue was joined on 3rd June ; ! no application was made or steps j taken after that until the Otii l)e- 'ceiulier, 18^7^ when the; petitioner ajiplit'd to hav(! a time and place aj)- pointed for trial and to have the time for rlie commencement of the trial enlarged. The lirst part of sec. 32 of the Controverted Elections' Act, R. S. C. ch. 9, is as follows : " The trial of each election peti- tion shall l)e commenced within six nuinths from the time wlien sucli petition has been presented and sliall \)i' proceeded with from day to day until such trial is over; but if at i any time it ai)])ears to the Court or J udge that the respondtjnt's presence at the trial is neeessaiy, such trial shall not be eonnnenced during any session of [Parliament ; and in the computation of any time or delay allowed for any ste|> or jiroceeding in respect of any such trial, or for the commencement thereof as tifore- said, the time occu]>ied by such ses- sion of I'arliament slndl not be in- cluded : "— //('/'/, Patterson', J. A., dissent- ing, that the exception in the last clause is confined to a case in which the Court is satistied that the re- 1 ti d DIGEST OF CASES. 629 LOT, 2 — unr.KS — VDIDATE, )N. 'led Ekc- , sees. 32, for Irial 1 tho 0th )U of ^^'^^- \:\vA June, '.r.l June ; ^ or steps le Gth De- petitionev d place iii> have tlie leiit of the 32 of the Act, R. S. _>etiou peti- within six wIk'U such d and shall iiy to (lay i.ut if at ic Court oi- l's pi-esence such triiil during iiny lud in the ne oi- dcl'.iy proceeding trial, or for oof as afore- l,v such ses- not l)e in- A., disseut- i,i tin- Ifvst ase in which that the re- flpondent's presence is necessary ; " such trial " refers to a trial at which the respondent's presence has been declared to be necessary ; and no such declaration having been made in this case, the time of the session of Parliament was not to be excluded from the six months with- in which the trial w&s to be com- "lenced. It was not incumbent upon the respondent to move to dismiss the petition for default. TIk' Court could not nunc pro titn< 1 ' re that the respondent's presence at the trial was necessary. Per Curiam, that the time for the comniencPT^ient of the trial may be enl<>v>T;ed under section 33, notwith- btaii',; ig the expiration of the six I V li! 08 ; but it had not been estab- lished in this case that the require- ments of justice rendered such en- laigenient necessary ; and the Court refused to appoint a time and place for trial or to enlarge the time. ili^oHta (Dominion), 448. 2. R. S. C. ch. 9, sec. SS, sub-sec. 2 — Tri