Quebec West Election Case (Price v. Power)

LANGELIER AND McCORKILL J.

-The respondent to an election petition appeals from the judgment of Sir Frangois Langelier C.J. allowing a motion to quash preliminary objections taken by him to the petition. Upon the argument the court expressed its view that with the exception of the objections numbered 4 and 5, as to which judgment was reserved, the preliminary objections were properly quashed.

Objections numbers 4 and 5 are as follows:- The learned Chief Justice treated objection number 5 as merely a statement of the particular ground upon which the respondent intended to challenge the right of the petitioner to vote at the election, put in issue by objection number 4.

He says: "Le paragraphe 5 explique le paragraphe 4."

So treating it he held that if the allegation of fact made in the fifth objection were established, it would not prevent the petitioner from proceeding with his petition.

With great respect I am unable to agree in the view that paragraph 5 is merely an explanation or particularization of the lack of qualification to vote charged by paragraph 4. Paragraph 4 deals with an absence of qualification such as the omission of the voter's name from the voters' list. Paragraph 5 deals not with lack of qualification but with disqualification due to some act of the voter, which, although he otherwise possessed the requisite qualification of a voter, would invalidate any vote that he might cast. The introduction of the word "moreover," in paragraph 5, makes it perfectly clear that by that paragraph the respondent intended to challenge the status of the petitioner upon a ground entirely distinct from that raised in paragraph 4.

The motion before the learned Chief Justice was in the nature of a demurrer and was disposed of without any evidence being taken to establish the facts alleged by the preliminary objections.

The objections could properly be so disposed of only upon the assumption that if the facts alleged in them were proved they would not constitute valid objections to the petition. As to the allegation in paragraph 4 that it is manifest from the mere statement of the objection that, if established, it would be fatal to the petitioner's status. The respondent is clearly entitled to have this objection disposed of on the merits. The motion to quash it should not have prevailed. I venture to think that it succeeded only because the learned Chief Justice construed paragraph 5 as a specification of the objection to the petitioner's status taken generally by paragraph 4.

But when we come to consider paragraph 5, the same authority which establishes the right of the respondent to raise these questions as to the status of the petitioner by preliminary objections-The Cumberland Election Case(1)-also establishes that such an objection as that taken in paragraph 5 would not if established render the petitioner ineligible. The judgment of Mr. Justice Girouard and that of Mr. Justice Davies, in which Mr. Justice Nesbitt concurred, determine that a corrupt practice such as that charged in the 5th paragraph disqualifies only from the date of a conviction of the offender by a court of competent jurisdiction or of a finding of such a court J. that the offence has been committed, and that a petitioner, though guilty of such an offence, is not a person who had not a right to vote at the election within the meaning of the section declaring the requisite qualifications of a petitioner. This decision is of course binding upon us.

It follows that the judgment in appeal must be sustained as to the 5th objection, but that, as to the 4th objection, it must be vacated. In view of the very limited extent of the appellant's success, there should be no costs to either party.

The respondent to a cross-petition appeals from the judgment of McCorkill J. dismissing his preliminary objections. The appeal is confined to the overruling of the 5th objection, which is in the following terms

Paragraph 11 of the cross-petition is as follows:- While this paragraph is objectionable on the ground that it states a conclusion of law, and although it is no doubt desirable that a petitioner preferring a charge of undue influence should state the facts upon which he relies to establish the charge, it is manifest that these facts can readily be obtained by a demand for particulars, and where that is the case the taking of a preliminary objection upon such a ground should be discouraged. For this reason the learned judge overruled this objection. I think that in doing so he was well advised and that this appeal should therefore be dismissed with costs.

Appeal in Price v. Neville allowed in part without costs. Appeal in

Power v. Price dismissed with costs.

E. J. Flynn.

Marchand.

Marchand.