Bellechasse Election Case (Amyot v. Labrecque)

E. LABRECQUE, et al. (PETITIONERS) ... RESPONDENTS. ON APPEAL FROM THE SUPERIOR COURT FOR LOWER - CANADA.

Sir W. J. RITCHIE C.J.- The burden of proof was on the petitioner, and I am not prepared to reverse the judgment of this court in the S/anstead Case and unless we do so this appeal should be allowed. J.-Following the Stanstead Case we are bound to hold that the objection taken on this appeal is good; that the onus was on the petitioner who was bound to prove his qualification; that not having done so the judge ought to have dismissed the petition and we must give the same judgment which he ought to have given.

Therefore the appeal must be allowed and the petition dismissed with costs in all the courts. J. concurred with Sir W.

GWYNNE J.-1 am not satisfied that this case comes within the Stanstead Case Of course although I differed from the judgment of the court in the Stanstead Case I am bound by it, but here as I understand the case the preliminary objection is that the petitioners were not entitled to vote and were not on the electoral list. This was not the form of the preliminary objection in the Stanstead Case and I think the judgment in that case should be limited to cases identical. If the petitioners were not on the list, as the respondent alleged, that issue in my opinion was upon the person making the averment.

J.-I think, irrespective of what was done or omitted to be done by the learned judge, that 3EEunder the statute it is perfectly clear that the status of the petitioner can only be contested by a preliminary objection, and can never form an issue at the trial. Looking at the statute I think that appears very distinctly. The operation of the statute runs in this way. It provides by one section that the person complaining of an undue election may present a petition setting forth certain things, enumerating things which the petitioner may allege as grounds for avoiding the election.

It goes on to state that notice of the petition must be served on the respondent within a prescribed time, and then there is the further provision that certain preliminary objections may be taken including, in express terms, the status of the petitioner.

Those are preliminary objections.

Preliminary to what? That appears by the following section: Then, what are the issues ? They are the matters of complaint mentioned in section 5: An undue return, or undue election of a member; or no return; or a double return; or any unlawful act by any candidate not returned, by which he is alleged to have become disqualified to sit in the House of Commons, at any election.

The preliminary objections are objections which are preliminary to the necessity for putting in an answer; it is not until they are disposed of that the answer is to be put in.

Pinault.