Beauharnois Election Case (Loy v. Poirier)

On 25th May, 1901, an order was made by Mr. Justice Belanger for the trial of the petitition against the appellant's return as a member of the House of Commons for Beauharnois thirty days after judgment should be given by the Supreme Court on an appeal then pending from the decision on preliminary objections to the petition.

Such judgment was -given on 29th October and on 19th November, on application of the petitioner for instructions, another order was made by the said judge which decided that juridical days only should be counted in computing the said ,thirty days, stating that such was the meaning of the order of 25th May, and that 6th December would be the date of trial. On the petition coming on for trial on 6th December appellant moved for peremption on the ground that the six months limit for hearing had expired.

The motion was refused and on the merits the election was declared void.

On appeal to the Supreme Court.

, that an appeal would not lie from the order of 19th November; that the judge had power to make such order, and its effect was to extend the time for trial to 6th December, and the order for peremption was, therefore, rightly refused.

APPEAL from the judgment of Mr. Justice Belanger and Mr. Justice Pagnuelo sitting for the trial of a *PRESENT :-Sir Henry Strong O.J. and Sedgewick. Girouard, Davies and Mills JJ.

petition against the return of the appellant as a member of the House of Commons for the electoral district of Beauharnois, who on admission by the appellant the commission of corrupt acts by his agent set aside the return and declared the election void and the seat vacant.

The facts are sufficiently stated in the above headnote and in the judgments given in this appeal. Beique K.C. and Brossoit K.C. for the appellant. Bisaillon K.C. and Laurendeau for the respondent. THE (oral).-The majority of the court are of opinion that this appeal should be dismissed. In so far as it is an appeal from the order of the 18th of November, 1901, we have no jurisdiction to entertain it. It appears that an order was made May 25th last providing that the trial of this election petition should take place thirty days after judgment was given in an appeal then pending in this court from the decision on preliminary objections to the petition.

Judgment was pronounced in such appeal on October 29.

Application was then made to Mr. Justice Belanger, the judge of the Superior Court at Beauharnois, who had made the before mentioned order of May 25, asking him to explain whether not non-juridical days should be taken into consideration, or whether the usual computation should be applied according to which, as provided by the Interpretation Act, first and last days of any delay if nonjuridical are not counted but intervening non-juridical days are counted. Mr. Justice Belanger on November 18, made an order explaining his previous order of May 25, by which he directed that all non-juridical days should be rejected in computing the thirty days from October 29, when the judgment of this court was given on the appeal from the decision on the preliminary objections.

This order it appears to us Mr. Bnw- Justice Belanger had power to make, and at all events ' his decision was not one from which the statute gives an appeal to this court.

It is provided by the Controverted Elections Act that every election petition shall J"'e* be brought to trial within six months from the date the polling. December was fixed by Mr. Justice Belanger as the day for the trial of this petition.

That date was beyond the six months so fixed by the Act, but the effect of the order of November 18 was to enlarge the time of trial to the day on which the trial was actually proceeded with.

Therefore upon the ground that the order made by Mr. Justice Belanger of November 18 is not susceptible of appeal to this court as it is neither an appeal from a judgment on preliminary objections nor from a judgment on the trial. of the merits of the petition;

and on the ground that by the order of the 18th of November the trial was fixed for December 6 by the judge who had power to make such an order; and also for the reason that the motion for peremption made to the trial judges was properly dismissed, and that the judgment on the trial on the merits proceeding on an admission by the sitting member of corrupt acts by agents was right; the appeal is dismissed with costs. and MILLS JJ. concurred.

J. (dissenting).-In my opinion this appeal should be allowed on the ground that the trial took place after the expiration of the six months within which the statute declares the trial of every election petition shall be commenced, and there had not been any enlargement of the time as provided for in its 33rd section.

Objection was taken to our jurisdiction to hear the IThappeal, but I think the objection baseless.

This court has already decided in the Glengarry Election Case that the decision of a judge at the trial of an election petition overruling an objection taken by respondent to the jurisdiction of the judge to go on with the trial on the ground that more than six months had elapsed since the date of the presentation of the petition, is appealable to this court.

That determines the right of appeal here. At the opening of the election court on the 6th December, respondent's counsel moved for peremption of the election petition on the ground that the six months had elapsed and that there had been no enlargement of the time. The court dismissed the motion and proceeded with the trial. There is no dispute as to the fact that on the 6th day of December more than six months had elapsed from the time of the filing of the petition.

The only question is whether there had been an enlargement of the time so as to embrace this date, 6th December.

The respondent had fyled preliminary objections to the election petition which were dismissed by the Superior Court in April, 1901.

From this judgment he appealed to the Supreme Court of Canada which subsequently dismissed-the appeal.

On 22nd May, 1901, after the taking of said appeal to the Supreme Court, the trial of the petition was fixed for the 10th of Tune, 1901.

On the 25th day of May, 1901, the appellant presented a motion to the Superior Court alleging that the said appeal had been taken and that it was in the interest of justice that all proceedings in the case should be suspended till after the judgment of the Supreme Court thereon and praying that the commencement of the trial be continued from the 10th day of June, 1901, to the 30th day after the judgment to be rendered by the Supreme Court, etc.,

The court granted the motion in the following words: J. juin The meaning of this order or judgment for the enlargement of the trial is perfectly clear and I understand this court is unanimous in holding that it extends the time till the 29th day of November, that being the 30th juridical day after the judgment of the Supreme Court dismissing the appeal on the preliminary objec. tions was given.

The 30th juridical day meant and could only mean the 30th day after the judgment on which the trial court could legally sit. About this there is no difference of opinion in this court.

On 18th November, 1901, respondent (Poirier) moved the Superior Court suggesting that doubts had arisen as to whether the words, " 30e jour juridique apr~s le jugement A tre rendu par la Cour Suprime" contained in the judgment of 25th May, 1901, meant the 29th day of November or the 6th day of December, and asking for an interpretation of said judgment said point.

8%

The motion was disposed of as follows:

Appellant fyled an exception to this judgment, and at the trial, on December 6, made a motion for peremption on the ground that the trial day, (the 29th November, 1901) having passed the proceedings lapsed, which was dismissed on the ground that the judgment of the 25th of May, 1901, was susceptible of the interpretation put upon it by the judgment of the 18th of November, 190 1, and that said interpretation is final. The substantive question of this appeal is whether this judgment of the trial court was correct or whether the Superior Court by its interpretation judgment of the 18th November, 1901, had further extended the time till the 6th December.

The first branch of the question I do not think open to argument.

The order postponed the trial to a day which meant the 29th November and not the 6th December.

As to the interpretation judgment, I think it is perfectly clear that it was not intended to enlarge and did not enlarge the time fixed by the previous order. It merely declared what was in the judge's mind when he gave the judgment, but which was something entirely different from what the order or judgment declared.

This motion of the 18th November did not purport to be an application for an enlargement of the time under 33rd section of The Controverted Elections Act.

It was not made upon affidavit as the section requires.

There was nothing in the language of the statute to make it appear to the court or judge that the requirements of justice rendered such enlargement necessary.

All that the judge did or pretended to do upon that occasion was to declare that in rendering the judgment of the 29th May, 1901, the court meant that, in .counting the twenty-nine intermediate days;

But this interpretation judgment as I have said so far as it pretends to interpret the previous order is clearly wrong. The 30th juridical day did not fall on the 6th December but on the 29th November, and a wrong interpretation cannot alter its legal meaning.

By the express words of the statute the trial of every election petition must be commenced within six months from the presentation of the petition. Under certain defined conditions the time occupied by a session of Parliament intervening may not be counted. If the interests of justice require it a judge may enlarge the time for the commencement of the trial on an application supported by affidavit.

But such an enlargement must be actually made and not simply exist in the judge's mind.

Whether it has been made or not must be determined by the words and language of the order or judgment given on the application. If any proper application had been made in this case to enlarge the time to the 6th December, and any language had been used in the judgment or order which could possibly be construed so to enlarge it I should .be glad under the circumstances to give them full effect, and think we should be astute to find them if possible. But as no such application was made and no such enlargement was grantedI or as it seems to me BEu intended to be granted, I feel hound to hold that all the trial proceedings were ultra vires and that the appeal should be allowed.

J.

TIONER)...................

A. A. BRUNEAU MOTION to quash an appeal from the judgment Justice Fontaine, on the 24th of December, 1901, dismissing, with costs, the petition of the appellant against the return of the respondent as member for the Electoral District of Richelieu in the House of Commons of Canada.

The motion was to quash the appeal for want of jurisdiction in the Supreme Court of Canada to enter- :-Sir tain the same on the ground that the judgment appealed from was merely one dismissing the petition as perempted, according to the practice in ordinary causes in the Province of Quebec, for want of prosecution within the period of six months as provided by the 32nd section of " The Dominion Controverted

Elections Act," (R.S.C. c.

Fitzpatrick, K.C. for. the motion.

Bisaillon, K.C. contra.

The judgment of the court was delivered.by:

J.-Il s'agit de savoir s'il y a appel A cette cour d'un jugement de la cour du district d6c1arant p6rimbe la p6tition d'61ection.

Le dbcembre dernier, le d6fendeur faisait motion pour p6remption et trois jours apris le p6titionnaire demandait la fixation d'un jour pour l'instruction de la cause.

Le 24 d6cembre, le juge accordait la premire motion et renvoyait la p6tition.

ne s'agit donc pas d'un jugement sur des objections pr6liminaires on sur une question de fait on de droit durant le procs.

Or, nous avons d~cid6 en maintes occasions, durant le pr6sent terme m6me dans les causes de Beauharnois (1) et des Deux-Montagnes, (2) qu'il n'y a appel A cette cour que dans ces deux cas, S.R.C. ch. s. 50.

Nous avous d~cid6 la mime chose au sujet d'un jugement accordant la p6remption dans des circonstances entibrement semblables a celles de la pr6sente cause.

The Quebec

County Election Case (3) and The Glengarry Election

Case (4).

L'appel est annul6 avec d6pens.

Appeal quashed with costs.

Lefebvre.