Lunenburg Election Case

KING J.-This is an appeal from an order of Henry J., dismissing preliminary objections to an election petition.

The main point in the appeal arises from the provisions of the Act 54 & 55 Vict. ch. 20, sec. 3, providing for the presentation of an affidavit at the time of the presentation of the petition, and is raised by the 26th and 27th of the preliminary objections.

King J. 26. The said John Drew Sperry had not at the time he swore to the said affidavit any reasonable grounds to believe, and he did not believe, that the material allegations in the said petition were true.

The matte came on for hearing in a summary way before Mr. Justice Henry, and the following extract from the minutes of the learned judge shows what took place respecting the matter of the above recited objections:

Mr. Borden wishes to call or cross-examine petitioner as to his affidavit for the purpose of showing that there were no reasonable grounds for the allegations therein contained. I reserve my decision as to this.

At a later stage of the hearing the learned judge noted his refusal to allow the petitioner to be examined, which of course is to be taken as relating to crossexamination as well.

Subsequently judgment was delivered dealing with the remaining questions, and on the 11th December the order appealed from was made.

Section 3 of 54 & 55 Vict. ch. 20, is in amendment of the legislation relating to the qualification of petitioners, and is as follows:

Section 5 of the Dominion Controverted Elections Act is hereby amended by adding the following paragraph at the end thereof : At the time of the presentation of the petition thereshall also be presented therewith an affidavit by the petitioner that he has good K J

What was presented by the petitioner has the formal requisites and the substantial requisites of an affi. davit, and no question arises as to its properly expressing the mind and intention of the deponent. What is deposed to is also in conformity with the requirements of the Act:

What the respondent in the proceedings sought to do, according to the minutes of the learned judge, was to show by the examination or cross-examination of the petitioner that there was no reasonable grounds for the allegations; in other words, that there were no reasonable grounds for the petitioner's belief. But the Act has made the deponent the judge as to the reasonableness of the grounds of his belief, and the affidavit does not form any part of the body of proof to be passed upon by the court on the trial of the petition. It is said that the existing belief to which he is required to depose must be an honest belief. Granted. But the question back of that is as to how the honest belief is to be proved, and whether the election court can inquire into it. The Act treats the petitioner as a person fit to form an opinion on the subject of his beliefs, and as a credible person who will declare his honest belief under oath subject to the responsibilities of such a proceeding, and adopts his act as a qualification inter alia for his becoming petitioner.

For wilful and corrupt swearing to what he knows to be untrue he is liable in a court of proper criminal jurisdiction, but his credibility is not to be impeached in the election court in respect of this statutory affidavit. It may be that many vexatious and unfounded election petitions might be brought in this view of the law. This, however, presupposes a laxity of legal and moral restraint, and in any view may be for the consideration of the legislature.

Cases where the intention of the deponent is shown not to have gone with the apparent affidavit are not now in mind, but there is no suggestion of that here.

For example, a petitioner might be insane, or an illiterate petitioner might make oath to a form of allidavit supposing it to be an affidavit in another proceeding.

In such case there would be no real affidavit. In the circumstances of this case the proposed examination and the cross-examination seem to have been irrelevant.

Another preliminary objection was that the petition was not in proper form.

The objection apparently was that it was too general.

But the factum of the appellant admits that it was in a form which had been used in the province of Nova Scotia prior to the passing of the statute 54 & 55 Vict. ch. 20, the 3rd section

.of which requires the petition to be accompanied by an affidavit of the petitioner.

But that Act effected no change in the form of the petition, which still depends upon R. C. ch. 9, sec.

to the effect that the petition may be in any pre scribed form, but if or in so far as no form is prescribed it need not be in any particular form, etc. The admission of the factum indicates that if any form was prescribed in Nova Scotia such was substantially followed.

At all events no variance from prescribed form is alleged, or shown. Inconvenience from the generality of the petition is always practically obviated by the particulars.

The remaining objection raised before us is that thd affidavit referred to did not sufficiently identify the