In the principles of law by which the learned judge has, in his very able judgment and review of the reported cases, stated that he was governed in his con- = sideration of the evidence, and in arriving at his conclusion upon it, I entirely concur.
In this view it is unnecessary to express an opinion upon the question as to the sufficiency of the evidence of the parties said to have been corruptly approached by the respondent or by his agents, being electors. The appeal should be dismissed with costs.
Solicitors for appellant: Pagnuelo
St. Jean. Solicitors for respondent: Pelletier
Martel. CONTROVERTED ELECTION FOR THE ELEC- TORAL DISTRICT OF BERTHIER, IN 'April
THE PROVINCE OF QUEBEC.
NARCISSE GENEREUX et al.............
.........
Election-Railway Pass-37 and 100-Questions of fact in appeal-Agent, JJ.
Lamarche case.
The facts were as follows:-One L., the agent of the respondent, gave to certain electors employed on certain steamboats, tickets over the North Shore Railroad, to enable them to go without paying any fare from Montreal to Berthier, to vote at the Berthier election, the voters having accepted the tickets without any promise being exacted from or given by them. The tickets showed on their face that they had been paid for, but there was evidence L. had received them gratuitously from one of the officers of the company.
The learned judge who tried the case found as a fact that the tickets had not been paid for, and were given unconditionally, and therefore held it was not a corrupt act.
Held-1. (Fournier and Henry, JJ., dissenting) that the taking unconditionally and gratuitously of a voter to the poll by a railway company or an individual, whatever his occupation may be, or giving a voter a free pass over a railway, or by boat, or other conveyance, if unaccompanied by any conditions or stipulations that shall affect the voter's action in reference to the vote to be given, is not prohibited by 39 Vict., ch. 9 (D).
2. That if a ticket, although given unconditionally to a voter by an agent of the candidate, has been paid for, then such a practice would be unlawful under section 96, and by virtue of section 98 a corrupt practice, and would avoid the election.
3. That an agent who is not a general agent but an agent with powers expressly limited, cannot bind the candidate by anything done beyond the scope of his authority.
As to the remaining three charges the Court was of opinion that, on the facts the judgment of the Court below was not clearly wrong and should therefore not be reversed. (Fournier and Henry, JJ., dissenting on the charge known as the Maxwell case.)
APPEAL from a judgment delivered on the 21st of
February, 1883, by Mr. Justice Doherty, dismissing the election petition against the return of the respondent, at the election which took place in June, 1882, for the electoral district of Berthier, to the House of Commons.
The petition in this cause was presented, in the usual form as to corrupt practices, without claiming the seat.
This petition was supplemented by a list of particulars consisting of twenty-six charges.
Petitioners called and examined a large number of witnesses, and at the hearing, they abandoned all but five of the charges, persisting only in the 1st, 2nd, 8th and 20th, and in the additional particular A.
On appeal four charges of bribery were relied upon, 1st, the Lamarche case; 2nd, the Chalut case; 3rd, the Rithier 4- Cote's case; and 4th, the Maxwell case. The particulars of these charges are stated in the judgments hereinafter given.
Mr. Doutre, Q. C., and Mr. Mercier, Q. C., for appellants:
As to the Lamarche case.
The only question to decide on this question is whether the grant of free passes, some 20 in number, amounts to a corrupt practice, according to the Dominion election Act, 1874.
We submit that it is a corrupt practice according to sections 92, 96 and 98 of said Act.
The respondent was the conservative candidate, the railway was a governmeut railway under the control and management of the Quebec conservative government. The passes were delivered by the officials of the road to convey electors to the poll, at the special request of respondent's agents.
These passes were delivered the day before the polling day, and all these men were paid at the end of the week their full salary, although they lost a day and a half. Then it is established by the evidence that the value of these passes was $1 50cts. each. There is no doubt that these men would not have gone to Berthier that day, if they had been obliged to pay their travelling expenses and lose their salary during their absence.
This is a payment of a carriage to convey voters in violation of sec. 96. There is no actual payment proved, for Lamarche says he did not pay for these passes. But it comes to the same thing, and we fail to see the necessity of an actual payment of money, under the circumstances, to constitute a corrupt practice.
To maintain such a system would be simply to give .oN to a government, holding iailways, the means of controlling, in a very extraordinary way, the elections of the whole country.
But suppose there is any doubt that this act falls under sec. 98, it seems that it can be brought under sec. 92, which constitutes a corrupt practice with the giving of any valuable consideration to an elector in order to induce him to vote or to favor the election of a candidate.
This point was specially raised in the celebrated case of Cooper and Slade, before the House of Lords in Hickson v. Abbott (2).
See also Leigh and Lamarchand (3).
In the North Simcoe election case (4) it was decided in 1871 by Vice-Chancellor Strong that the hiring by an agent of the respondent of a railway train to convey voters was a payment of the travelling expenses of voters within the meaning of section 71 of 32 Vict., ch. 21, and was a corrupt practice.
According to the ruling in the Selkirk case (5), the 96th section of the Dominion Elections Act, 1874, is included in the 98th section of the same Act (6).
The gift to electors of passes on railways, for the purpose of allowing those voters to go at all to the polls was declared in 1881 to be a corrupt practice in Hickson v. Abbott (7).
It seems to us very clear that under the circumstances of this case the election ought to be voided on account of the delivery of these passes.
They were a valuable consideration given to electors to induce them to vote. They were practical payment of travelling expenses, and it is quite indifferent whether this payment travelling expenses was made with money or with a valuable consideration of any kind.
To uphold such a system would be to encourage the worst kind of bribery; for it would be to allow a candidate to convey any amount of voters to the polls by way of passes granted by a friendly railway company. The Bolton (1) case cited by Mr. Justice Doherty has no authority here; and the principles laid down by Judge Mellor are entirely opposed to our own jurisprudence. [As to the three other charges, the argument of counsel sufficiently appear in the judgments.]
Mr. Lacoste, Q. and Mr. Bisaillon with him for respondent.
As Lamarche is admitted to have been an agent, the only question which arises is whether Lamarche has violated the 96th section of the Act by "having promised to pay, or paying for any horse, team, carriage, cab or other vehicle, by any candidate or by any person on his behalf, to convey any voter or voters to or from the poll, or to or from the neighbourhood thereof at the election."
The passes were given gratis; they were never paid for, and were given unconditionally.
Lamarche or Labelle acted merely as would have acted any person voluntarily and gratuitously conveying voters at the poll with his own carriage, and the judge in the court below so found.
The appellant's proof entirely fails to bring the charge under the provisions of the said 96th section of the Act, but the petitioners contend that the passes given to the voters by Lamarche were things of value, and that they were given as a " valuable consideration," to induce said voters to vote for respondent at the election. This question has been already fully discussed in the Bolton case (1), where it was decided that the giving of a pass was not a valuable consideration under the Act.
See also Rogers on Elections (2), where all the cases on this point are collected.
Then as to whether Lamarche has violated section 92,
We submit that there has been no violation of that section, because no payment was made. There is nothing in the law to prevent a railway company any more than a private company from granting a free conveyance to the voter. Cooper v. Slade is distinguishable on this point.
Hickson v. Abbott (3), and the Simcoe case (4), relied on by appellants, are not applicable, because in those cases the tickets were paid for, and the election was avoided, not under section 92, but under section 96.
Mr. Mercier, Q. C., in reply.
RITCHIE, C. J.:- There are in this case four charges which the petitioners rely on, viz. :- 1st. The Lamarche case.
The charge in this case is in these words:- " Que pendant la dite 6lection, le dit Edouard Octa- "vien Cuthbert, directement et indirectement, par lui- "Mme,- par le moyen d'autres personnes, et de ses
"agents autoris6s, et entr'autres par Olivier Lamarche, "marchand de Berthierville, district 6lectoral de Ber- "thier, de la part et du consentement et A ]a connais.
"sance relle du dit Intim6, a pay6 les d6penses de
" voyage et autres d6penses d'un grand nombre d'61ec- "teurs du dit district 6lectoral de Berthier, pour les
"aider A se rendre A 1'61ection, et A s'en retourner, A se
Jur.
" rendre aux, on aux environs des bureaux de votation, " et entr'autres A Octave Boucher, Jean Baptiste Godin, " Alexandre Godin, Narcisse Boucher, Louis Valois, " Pierre Latour, tous navigateurs de l'lle Dupas, dans le district 6lectoral de Berthier; Joseph Ploufe, Alfred "Bruno, Dolphis Rocrais, Dolohis Mass6, Servius Massd, " Joseph Pagd, Octave Parent, tous navigateurs de " Berthier, dans le dit district; Lafontaine de Qudbec, "employ6 civil; Narcisse Boucher, navigateur de Trois "Rividres, district de Trois-Rivdres ; Pierre Arpin, "navigateur de Lanoraie, dit district de Berthier; "Dolihis Buron, navigateur de Berthier, district "toral de Berthier; Charles Rocrais, navigateur du "mime lieu; Alfred Chiquette, maitre de pension de " Montr6al, district de Montrial; toutes ces personnes " 6tant blecteurs de la division 6lectorale de Berthier, et " diiment qualifi6s A voter A la dite 6lection, et ayant "vot6 A la dite 6lection, donnant A chacune des dites "personnes, un billet de passage sur le chemin de fer Quebdc, Montrial, Ottawa et Occidental, et autres "valeurs et d'autres manibres, pour les conduire dans le "dit district 6lectoral de Berthier, aux, on aux environs "des bureaux de votation, chacune des dites personnes "avait respectivement droit de voter, et que les dites "personnes ont ensuite revendu les dits billets de "passage, qu'ils avaient ainsi obtenus gratis et dans un "but frauduleux, ill6gal et de corruption, et pour les "engager A voter pour le dit Intim&, et ont retir6 de ces "ventes des sommes d'argent ou autres valeurs qu'ils "out gard6es pour leur usage personnel exclusif." Lamarche, the agent of Cuthbert, gave to certain parties employed on certain steamboats, being persons qualified to vote at the Berthier election, tickets or passes over the Quebec, Montreal, Ottawa 4- Occidental Railway, to enable them to go, without paying any fare, from Montreal to Berthier to vote at such election. It is very clear, indeed, not denied, that these voters travelled free on these tickets from Montreal to Berthier to vote, and voted there, but it is denied that they were given with any corrupt intent, or that the giving of these tickets or passes amounted to bribery or corrupt practices within the meaning of the Dominion Elections Act, 1874, and it is alleged that nothing was said or done by Lamarche corruptly to induce these persons to vote for or aid the respondent in his election, but that the passes were given unconditionally, and, therefore, there was no violation of the Dominion Elections Act, The judgment of the learned judge in the court below would seem to proceed on the authority and applicability of the cases of Cooper and Slade and the Bolton case
In the case of Co9per and Slade a conditional promise to pay travelling expenses was held to be bribery.
In the Bolton case, it was submitted that the sending of the letters and railway passes was either an act of bribery according to the doctrine laid down by the House of Lords in the case of Cooper and Slade or a simple act of bribery within the meaning of the Corrupt Practices Act, 1854, sec. 2; and secondly, that if it was not an act of bribery still that it was an illegal act which had been systematically and wilfully done for the purpose of influencing the election, and that as such it ought to be held to have avoided the election. The court held in the Bolton ca-e that there was not a conditional promise, but had it been: " If you come and vote for the respondent the expense of obtaining a railway ticket will be paid," Mr. Justice Mellor says: "This would, no doubt, have brought it within the case of Cooper and Slade." I think neither the case of Cooper and Slade nor the Bolton case are at all applicable to the present, because I cannot satisfy my mind that the tickets were in this case given on any such condition as would legally constitute the act a case of bribery under the 92nd section.
In the English acts there are Ri-hieCJ no such enactments, as sections 96 and 101 of the i Dominion Act of 1874, and it is under these sections that this case must, in my opinion, be determined. Under these sections the charge is not that of bribery, but of a corrupt practice by virtue of the prohibition of section 96 and the declaration of what offences shall be corrupt practices, as quite distinct from acts of bribery as provided against in section 92.
Those provisions which are not to be found in the English Act of 1854 are as follows:
37 Vic. ch. 9, section 96:
And whereas doubts may arise as to whether the hiring of teams and vehicles to convey voters to and from the polls, and the paying of railway fares and other expenses of voters, be or be not according to law, it is declared and enacted, that the hiring or promising to pay or paying for any horse, team, carriage, cab or other vehicle, by any candidate or by any person on his behalf, to convey any voter or voters to or from the poll, or to or from the neighbourhood thereof, at any election, or the payment by any candidate, or by any person on his behalf, of the travelling and other expenses of any voter, in going to or returning from any election, are and shall be unlawful acts; and the person so offending shall forfeit the sum of one hundred dollars to any person who shall sue for the same; and any voter hiring any horse, cab, cart, waggon, sleigh, carriage or other conveyance for any candidate, or for any agent of a candidate, for the purpose of conveying any voter or voters to or from the polling place or places, shall, ipso facto, be disqualified from voting at such election, and for every such offence shall forfeit the sum of one hundred dollars to any person suing for the same.
Section 98 :
The offences of bribing, treating or undue influence, or any of such offences, as defined by this or any other Act of the Parliament of Canada, personation or the inducing any person to commit personation, or any wilful offence against any one of the six next pre ceding sections of this Act, shall be corrupt practices, within the meaning of the provisions of this Act.
Section 101:
In my opinion this offence or corrupt practice may be complete without the slighest intent to bribe, as where a candidate or his agent knowing a voter intended to vote for the candidate and therefore required no inducement to do so, chooses to pay such a voter's railway fares or travelling expenses.
In such a case, notwithstanding the voters may have accepted the free passage without any condition or promise being exacted from given by them, the offence provided against by sec. 96 would be complete, though no offence of bribery could be thereby established, while on the other hand, if the voting for the candidate was made by the voter to depend on the condition that he should be paid his railway fare and travelling expenses, then the offence of bribery would be made out, and parties so offending would be guilty of a misdemeanor under section 92, to which persons offending against the 96th section are not made liable.
The question here being, whether what is complained of was a corrupt practice under the 96 and 98 sections, let us see how the case stands.
It is established that Lamarche was the respondent's agent.
The learned judge says " the proof summarized shows that he was a strong partizan and supporter of respondent, was a member of his committee, canvassed some, and was engaged and interested in favor of respondent," and the judge further says that " Lamarche gave passes for 17 to 20, and that he gave them to the voters referred to, and that they did travel free on them from Montreal to Berthier to vote and voted; this," he says, " is not and cannot be disputed." difficult to believe that those tickets or passes were not placed in Lamarche's hands to enable him to convey voters to the polls who would vote for the respondent, or that when he delivered such tickets he did not well understand and believe that the voters to whom tickets were so supplied would proceed to Berthier and record their votes for the respondent, and that they did so. Then, were these tickets paid for ? The fair inference, in the absence of evidence to the contrary, would seem to be that these tickets or passes were purchased from the government to be used for the conveyance of voters to vote for the respondent, and so in point of law the railway fares of these voters were paid for by the agent of the respondent who used these tickets and supplied them to the voters; or if not actually paid for by him were so used by him, knowing them to have been paid for.
Then there is the evidence of Parent, one of those voters, and he produces the ticket supplied to him, which certainly goes far to show that these tickets were purchased and paid for, the ticket on its face stating that it was paid for though issued at a reduced rate. He says:
je Q.-Etes-vous parti plusieurs ensemble? R.-Oui monsieur, on a parti, je vais vous les nommer tous: Delphis Masse, le Steward, son frbre, Zdphirin Masse, Joseph Plouffe, moi, Alexandre Godin, Octave Boucher, Louis Valois, A bord du Chambly.
Q.-Tous ceux que vous venez de nommer, A part de Valois, 6taient Ritchie,C.J. employds A bord du frois-Rivibres? R.-Oui, monsieur; Alfred
Bruneau et Delphis Rocrais.
Q.-A bord du Trois-Riviares? R.-Oui monsieur.
Q.-Avaient-ils tous des passes, comme vous? R.-Oui, ils avaient tous des passes.
Q.-Aller et retour? R.-Oui monsieur.
Q.-Combien cotte le passage de Montrdal A Berthier, aller et retour? R.-Sept chelins et demi, je suppose; c'est trois trente sous pour descendre.
Q.-En premibre classe ? R.-e ne sais pas, je ne connais pas le prix de la premibre classe.
Q.- C'est une piastre et demie dans la premibre classe? R.-Oui monsieur.
Q.-Naturellement, vous avez t dans la premibre classo cette fois-lA ? R.-Oui.
ExHIBIT C.
Quebec, Montreal, Ottawa and Occidental Railway.
One first-class passage.
From Hochelaga to Berthierville and return.
In consideration of the reduced rate at which this ticket is sold it will only be valid until 22nd June, 1882.
L. A. Senecal,
2 R.
General Superintendent.
The witness Mass received, from the captain of the boat, a ticket left by Lamarche for distribution similar or nearly so to Exhibit C, under these circumstances:- Q. -La veille de la votation vous 6tiez A bord de votre steamboat, dans le port de Montreal? R.-Oui moisieur.
Q.-Comment tes-vous venu A Berthier? R.-Je suis venu dans les chars du Nord.
Q.-Du chemin de fer du Nord? R.-Oui.
Q.-Avez-vous pay6 votre passage? R.-Pardon, j'ai eu une passe.
Q.-De qui avez-vous eu une passe? R.-J'ai eu une passe du capitaine Duval.
Q.-Le capitaine de votre steamboat ? R.---Oui, le capitaine de mon steamboat.
Q.-Est-ce une passe comme celle-ci: exhibit "C" produite A l'enqu6te des p6titionnaires ?
Object6 A cette question comme ill6gale.
Objection r6servke.
R--'est peu pros semblable. Je ne puis pas sermenter qu'elle litchieC.J. est parceille, mais c'est une passe mince.
Q.-De cette couleur-IA A peu pris? R -Oui, A peu pr~s. Q.-C'4tait une passe pour la premibre classe du train de chemin de fer du Nord? R.-Oui monsieur.
Q.-Vous savez lire ? R.-Oui.
Q.-C'btait sign6: " L. A. Sndcal ? " R.-La signature, je ne l'ai pas examin~e parfaitement.
Q.-Qu'est-ce que vous a dit le capitaine Duval quand ii vous a donn6 cette passe-lA?
R.-Premi~rement, M. Lamarche est venu a bord demander quels 6taient les voteurs qu'il y avait dans le steamboat, moi-m~me, je lui ai nomm6 des gens que je connaissais qui avaient droit de vote; ii a marqu6 les noms, et il a mont6 en haut au salon; ii a demand6 au capitaine Duval la permission d'avoir les voteurs i le capitaine a dit: avec plaisir, je ne puis pas refuser cela ; ils sont maitres d'aller pour qui bon leur semblera; de sorte que monsieur Lamarche a parti ; il est all A terre, et je n'ai pas vu rien de plus.
Q.-Il a vu les 6lecteurs ? R.-Pardon; il a eu la permission du capitaine, et il est venu A bord dans 'apris-midi; il a mont6 au salon; il est venu trouver le capitaine; il a vu plusienrs des gens qui sont ici presents et qui ont t entendus comme tkmoins. Je n'ai pas vu donner les passes moi-mime, mais au moins il a mont6 en haut, et it a donn6 des passes au capitaine.
J'en ai euone qui venait du capitaine.
Je ne peux pas dire si elle venait de monsieur Lamarche ou de d'autres, mais je 'ai eue du capitaine.
It is suggestive that the witness, on cross-examination, says the captain did not, when giving him the ticket, tell him for whom he was to vote, but when the question is put to him : " Q. Vous a-t-il demand6 pour qui vous alliez voter ? " we find no answer given. And this likewise negatives, if it does not dispose of, the hypothesis that these voters being employ6es of the Richelieu Navigation Co. were travelling by the railway free under an alleged usage whereby the employ6es of the railway company and the Richelieu Navigation Co. were permitted to travel free, a usage by no means IX.]
clearly proved to have existed, and which, had it existed, there is no evidence it was acted on in this case; on the contrary, had it been acted on, there would have been no need for the interference or instrumentality of Lamarche, who was in no way connected with either company.
Inasmuch then as the statute has specially mentioned the paying of railway fares, and section 96 was expressly passed to put an end to any doubts that might arise in reference thereto, considering the great, dangerous and corrupt influence that can be exercised in favour of particular candidates through the instrumentality of railway tickets, I think when such means are resorted to for bringing voters to the polls (by the candidate or his agents) the operation should be very narrowly watched and very strictly scrutinized, and as the fair and natural inference primd facie is that passengers travelling on railways, do so by paying the regular fares, a certain presumption is raised that when voters travel on a railway to the polling place on tickets supplied by the candidate, or his agent, that such tickets have been paid for by such candidate, or his agent, in accordance with the usual course of the business of the railway, and this, in the absence of evidence to the contrary, appears to me to bb much strengthened when the ticket shows on its face that it had been paid for, and it does seem to me to be a thin and flimsy cover indeed, under which to allow the candidate his agents supplying voters with such paid tickets, for what the law designates a corrupt practice, to screen the transaction by simply alleging that these tickets came to his or their hands enclosed in an envelope, ahd leave the matter there. If there were any exceptional circumstances to withdraw the transaction from the operation of the statute, the burthen of disclosing such circumstances would, in my opinion, rather be on the candidate or his agents than on the petitioner, as the former have the knowledge within themselves, and were the persons who can best explain the matter, while on the other hand, in almost, if not quite every case, c.J.the means of exposing the details of the illegality of the transaction (by the petitioner) would be a matter of impossibility, establishing that a candidate or his agent has supplied voters with paid tickets, by the instrumentality of which they have gone to and returned from the polls, clearly, to my mind, establishes a primd facie case.
I cannot for a moment suppose that this strong partizan and supporter of the respondent obtained these passes with the patriotic, philanthropic or charitable view of enabling all these men to vote free of expense at the election, wholly irrespective of whom they would vote for. I cannot believe that he did not know that if he got them to Berthier, they would vote for the respondent, and that he obtained the tickets and distributed them so that he might in the interest of the respondent secure their attendance and their votes at the polls for the respondent.
No one can believe that Lamarche, who says he knew all these seafaring men, and who adds, " Je connais nos ennemis et nos amis," would furnish a ticket to any voter whom he thought would be an enemy at the poll? nor doubt that he had a full reliance as to how the votes would be given. Giving these tickets to the voters was not as Willes, J., in Cooper v. Slade suggests:- Mr. Cuthbert, though examined, says nothing of this transaction, and neither Mr. Labelle nor Mr. Senecal, in whose name the tickets were issued, nor any other person connected with the railway, have been examined to explain at whose instance, or on what consideration, these passes were issued, if they were not issued in the interest of the candidate to be used by his agents as tickets duly itcheC:J. paid for, or otherwise than as expressed on their face.
It is not suggested that Labelle did anything wrong, and in the absence of any evidence to show that the tickets were not regularly issued on being duly paid for, or that the tickets expressed on their face what was not literally true, I have very great difficulty in seeing how they can be treated as issued gratuitously. This was then a Government railway run in the interest of the Province at large, and not in the interest of any individual election candidate. It is not, therefore, to be presumed that the
Government allowed it to be so used, or that it was so used by the employ6es of the Government of their own mere motion.
I have, therefore, the greatest difficulty in arriving at any other conclusion than that these tickets were paid for, and that their distribution and user in the manner detailed in the evidence should be regarded in no other light than as amounting to a payment by the agent the candidate on his behalf of the travelling expenses or railway fares of voters going to and returning from the election at Berthier, which, if so, would be an unlawful act under section 96, and by virtue of section 98 a corrupt practice, that section enacting that any wilful offence of section 96 shall be a corrupt practice, which simply means purposely doing that which the section forbids, and which by virtue of section 100 avoids the election, that section declaring that any corrupt practice committed by a candidate or his agent shall render the election of such candidate, if he has been elected, void.
Though I am strongly impressed with these considerations I cannot lose sight of the principle which governs courts of appeal in dealing with the decisions of courts of first instance on questions of fact.
The learned judge of the first instance has found against this view of the evidence which has so strongly Cimpressed me-his decision on he evidence being, that these tickets were not paid for, in which conclusion I understand my brothers Strong and Gwynne entirely concur. As this is a question of fact, pure and simple, the finding of the judge who tried the case should not be lightly disturbed, nor should an election be lightly set aside.
When this finding is thus supported by two of the five judges sitting in this court, making three of the six judges who have heard this case, I cannot but distrust my own judgment, and such doubts are thereby raised in my mind as to the correctness of the conclusion I should have been disposed to arrive at if the - decision rested with myself alone, without any conflict of opinion that, considering an Appellate Court should not reverse on a question of fact without its being made apparent that the court below was clearly wrong, and the so often expressed opinions of judges that before a judge should upset an election, he should be satisfied beyond reasonable doubt that the election was void, . under such circumstances I think I am bound to give the respondent the benefit of the doubt thus created. I am unable to say that I feel such confidence in my own impressions, strong though they be to the contrary, as would justify me in saying that I am entirely satisfied that the Judge was clearly wrong in the conclusion at which he arrived, and therefore I do not feel that I should be justified in reversing his decree. I think taking, unconditionally and gratuitously, a voter to the poll by a Railway Company, or an individual of whatever his occupation may be, or giving a voter a free pass over a railway, or by boat or other conveyance, if unaccompanied by any conditions or .
stipulations that shall affect the voter's action in reference to the vote to be given, is not prohibited by the statute. If it is against public policy, as I may think it is, that railway companies or others, having control of public conveyances, should be permitted to do this, its prohibition not being provided for by the statute, it is a casus omissus, which can only be remedied by Parliament. The courts cannot declare any Act illegal and corrupt, though one candidate may be thereby much benefitted, to the injury of the other, which has not been made so by the law.
Objectionable, as unquestionably in my opinion such a proceeding is, as unfairly and unduly affecting the election, -and possibly illegal as it may be as against the public interest and public policy, that officers or employees having the management of government railways, in which the public at large are individually and collectively equally interested, should issue free tickets to be distributed gratuitously, though unconditionally, in the interest of a particular candidate or party, yet, as the statute has not prohibited such a proceeding, and has not declared such an Act to be illegal, and a corrupt practice, or provided that it should invalidate the election, I do not think this court has, without statutory authority, any power to avoid an election for this cause.
The second charge is the and Rithier case. The learned judge says: "I see no proof at all sufficient to establish the agency of "-a conclusion from which I do not feel myself justified in differing.
As to the case of Maxwell, of St. Damien, I have no doubt the money was sent to bribe Maxwell, and if it can be established that it was done by an agent of the respondent, must annul the election. The evidence is f4ll of suspicions, but whatever suspicions there may be, there is no evidence of the agency of Daveluy that I can put my hand on.
The case of Hdnault is not quite so clear. Daveluy gives the letter containing this money to St. Cyr, who was not proved to, be defendant's agent, at Hochelaga, to be forwarded to Maxwell at Berthier, he meets Lamarche, the acknowledged agent of the respondents, and asks him who was going to St. Damien, and was informed by him that it was Hdnault. The inference is clearly that in asking who was going to St. Damien he was seeking to discover who was going there in the interest of the respondent.
He seeks Hdnault and gives him the money, telling him he was told there was money in it. Hdnault was going to speak for respondent, as the judge says, evidently with his knowledge and consent.
Though the money passed through the hands of Hinault, and however suspicious the transaction is throughout, I cannot say the evidence sufficiently establishes that he was anything more than the bearer of the letter, ignorant of the nature of the transaction, and therefore not a participator as the agent of the candidate in the act of bribery.
This case, surrounded as it undoubtedly is by the gravest suspicions, is not, however, so clearly made out as to justify me in reversing the judgment of the learned judge.
As to the Chalut case, I think this was nothing more than a bond fide payment of the expenses of Chalut, and was neither colorable nor corrupt, and therefore I agree with the learned judge that in this case petitioners have also failed to establish a charge of personal bribery against the respondent.
The appeal will therefore be dismissed, but I think without costs, following the course of the judge below, as I think the case a most proper one for the fullest investigation.
The appeal was confined to four distinct cases ot alleged corrupt practices, which I will considcr separately.
The first case is that of Olivier Lamarche, the facts of which may be concisely stated as follows:- Lamarche had his home at Berthier, where his family resided, but carried on business at Montreal. He was constantly passing between the two places on board the steamers of the Richelieu Navigation Company, and thus came to know the men comprising the crews of their vessels.
He was, undoubtedly, as the learned judge has found on most ample evidence, an agent of the respondent, being an active member of his committee at Berthier. On the day before the polling day, Lamarche went on board the steamer " Three Rivers," having a list of the names of those men of the crew who were voters in this County, and asked some of them if they would go to Berthier to vote. He says he knew all these men, the friends as well as the enemies of the political party with which he was allied.
Some of the men thus appealed to, said that they would not go to Berthier unless they were furnished with free passes over the railway. It appears that Lamarche then went to Mr. Labelle, the ticket agent of the Northern Railway, and applied for free passes for 17 or 20 men. These passes were furnished to him, being handed to him the same day enclosed in an envelope, by Mr. Goodeve, a clerk employed in the railway office.
In my view of the evidence it appears very clearly established that these tickets were granted freely by the railway authorities; that they were not paid for by Lamarche, or by any one else, nor was it intended they should be paid for. Lamarche took these passes on board the steamer " Three Rivers " and left some of them with the captain, and gave others to men who were voters-and some or 10 men went by the railway, travelling on these passes the same day to Berthier, and voted there the next day. It does not appear that Lamarche imposed any conditions upon those to whom he delivered passes, as to how they were to vote, or that he requested them to vote for the res-pondent, or made any enquiry of them as to their intentions with regard to the candidate for whom they were to vote.
Upon this state of facts, two questions of law arise-1st. Was the furnishing of these railway passes or tickets to the voters in question a payment of travelling expenses within the 96th section of the Dominion Elections Act, 1874? 2nd. Did it constitute bribery or a corrupt practice, within the 92nd section of the same Act?
* On both these questions I concur in the conclusions arrived at by the learned judge before whom this petition was originally heard, that Lamarche, in delivering these railway passes to the voters named, did not commit a corrupt act under either of these sections. As regards section 96, by which " the payment by any candidate, or by any person on his behalf, of the travelling and other expenses of any voter in going to or returning from any election"
is declared to be an unlawful act, and which, by section 98, is further declared to be a corrupt practice, and consequently an act avoiding the election by the express provision of sec. 102, it cannot apply for the plain reason that there was no payment of expenses. The tickets or passes are proved to have been granted gratuitously by the railway authorities and consequently all that was done amounted to just this, and no more-that the railway, at the request of an agent of the respondents, carried certain voters from Montreal to Berthier free of charge, and it cannot be contended that this is equivalent to a payment of travelling expenses any more than the carrying of a voter to the poll by a third person in his own carriage, at the 'request of a candidate or his agent, could be said to come within this provision of the statute
S In order to bring a case within this 96th section, s there must be a payment of money for the expenses. If money is paid by a candidate or his agent for the travelling expenses of a voter, I should not consider it material, in order to avoid the. election within this 96th section, as distinguished from the case of section 92, that any condition was imposed upon the voter that he should vote for any particular candidate. The case would be within the words and spirit of the enactment if it could be shown that there was an actual disbursement made by the candidate, or his agent, for the purpose of paying any voter's expenses, regardless altogether of any stipulation or promise that his vote should be cast for a specified candidate.
I repeat, however, that here there was no disbursement of money, and consequently there has not been, in this respect, the commission of any such corrupt act as involves an avoidance of the election under section 96.
If, as in the Bolton case the tickets had been paid for, or even agreed to be paid for by Lamarche, I should have considered that that would have amounted to a payment of travelling expenses and that consequently the election ought to be set aside.
When the Bolton case was decided the state of the law in England was such that the payment of travelling expenses did not avoid the election but was merely an illegal act, subjecting the person committing it to a penalty, and Mr. Justice Mellor in that case, although he decided that sending a railway pass which had been paid for and which entitled the holder of the pass to exchange it for a ticket, did not, having regard to the statutory provisions which then existed, avoid the EECON election, was still of opinion that it was an illegal act within the statute; and this opinion, as I understand that case, was founded upon the fact of the having been paid for.
Then as regards section 92, it seems to me that the conclusion of Mr. Justice Doherty, and the reasons upon whic that conclusion was founded, was upon the authorities also entirely correct.
This 92nd section is as follows :- Inoney Shall be deemed guilty of bribery and punishable accordingly.
This provision is a literal transcript of sub sec. 1 of sec. 2 of the Imperial Act, 17 and 18 Vic., c. 102, and consequently the English decisions upon this latter enactment are express authorities to guide us in applying this 92nd section of our own act. Then the question we have to decide here is narrowed to this: Did the giving of these railway passes or tickets to the voters named constitute a giving of valuable consideration to such voters to induce them to vote ? That the giving of these passes or tickets by Lamarche was the giving of a I valuable consideration " within the meaning of the statute, I entertain no doubt. That a railway ticket is a token of value is plain, since it enables the holder of it to procure an advantage which, without it, he could only obtain by the payment of money.
So far, there- VOL. 11.] SUPREME COURi OF CAlNAIA.
fore, the case is brought within the statute, and it is shown that a valuable consideration was given to voters by the respondents' agent, Lamarche. Is it, however, shewn that the case is brought within the other condition of the statute, which requires thit the valuable K consideration shall have been given " to induce such voter to vote
Upon the construction to be placed upon these words, the decision must depend.
Whatever doubt we might have felt in placing an interpretation upon this expression, if we had been called upon now to do so for the first time, we are relieved from any difficulty on this score by the decisions upon the corresponding Imperial enactment, which, being many in number and emanating from courts and judges of the highest authority, are conclusive of the present case, if any question of statutory construction can be concluded by authority. It is to be observed that there is nothing in the evidence to establish that Lamarche imposed any condition upon the voters to whom he gave the passes, that they were to vote for the respondent, or that he even invited or requested them so to vote, or to vote at all. It may indeed well be presumed that, from his constant and familiar intercourse with these men, he knew their political bias so well that he considered it superfluous to attach any such condition, or make any such request. Indeed, I gather from his expression, connais nos ennemis et nos amis," that he admits this was the case.
It does not not appear, however, that he witheld any tickets from any voters amongst the crews because he supposed they were adverse to his party, but that the tickets were given to all the men who had votes. These being the well established facts, the case of Cooper v. Slade, decided in 1856 in the Exchequer Chamber, is an authority conclusively showing that the conduct Lamarche, in the present case, did not amount to an act 1X of bribery within this 92nd section of the Act of 1874. It was there held that in order o make out a promise to pay, or the payment of travelling expenses, to be a promise, or giving of a -valuable consideration, to J. induce a voter to vote within the words of the claim under consideration, it must be shown that such a payment or promise was conditional upon the voter voting for a particular candidate. This decision was approved of as regards the law by the House of Lords in an action brought to recover a penalty, and, the judgment of the House having been delivered by Law Lords of great eminence, it must be deemed conclusive of the law upon this point.
In the judgment delivered in the Exchequer Chamber in this case of Cooper v. Slade, with which the House of Lords agreed, so far as the law and the construction of the statute and the meaning to be attached to the words, " induce a voter to vote," were involved, though it differed as to the application of the principles of law to the facts there proved in evidence, Alderson, B., lays down the law in the following words
And Williams, J., who differed from the rest of the court, did so expressly upon the ground that the letter which had been written to the voter by the agents of the candidate was to be construed, not as an absolute, but as a conditional promise to pay the expenses--an opinion which was also that of the House of Lords. This case of Cooper v. Slade was followed in the case upon which the decision of the learned .judge in the case now under appeal was founded, that of the petition for the Borough of Bolton, decided in 1874 by
Mr. Justice Mellor where it was held, upon state facts undistinguishable from those before this court in the present case (with the single exception that there the ticket or pass. sent to Strong, the voter had been paid for, whilst here it was granted by the railway company gratuitously), that the delivery of a railway pass to a voter to enable him to go to the poll free of expense, accompanied with a request to him to vote for the candidate by whose agent the pass was sent, was not, in the absence of any expressed condition that the pass was only to be used for the purpose of enabling him to vote for the candidate in whose interest it was furnished, bribery or a corrupt act, either at common law or within the statute.
The principle of the decision in these cases is very clearly defined in the opinion of Baron Channel in
Cooper v. Slade, in the House of Lords, and in that of
Mr. Justice Mellor in the Bolton case, where he points out that a pass or ticket being given unconditionally, as the facts establish beyond.dispute that the passes or tickets furnished by Lamarche were given in the present case, that there is no bargain or agreement at all that the voter shall vote in a particular manner, or that he should vote at all, that he may go to the poll and there refuse to vote, or vote against the candidate from whose agent he has received the ticket or pass, without being guilty of the breach of any obligation.
L will quote a short passage from the judgment in the Bolton case, which appears to me to have a direct application here.
The learned Judge says:- ~question le Every word of this is applicable to the facts in evidence here, and I am of opinion that the learned judge who heard this petition was entirely right in adopting the law as thus expounded by Mr. Justice Mellor, and dismissing the charge accordingly.
For the sake of distinctness, and in order that there may be no misapprehension of the grounds on which this opinion is founded, I think it right to add, though it may involve repetition, that had the .tickets been purchased by Lamarche, and either paid for or agreed to be paid for, I should have considered the case as coming within the 96th section, which prohibits the payment of travelling expenses; and had the tickets been given to the voters upon the express condition or stipulation that they were to vote for the respondent, or had they promised so to vote, I should have thought the case within the principle of the actual decision in Cooper v. Slade, and so a corrupt act, avoiding the election under sec. 92.
It was forcibly argued by the learned counsel for the appellants, that although the railway authorities were not in any sense agents of the respondent, yet the granting free tickets by the managing officer of a government railway, or a railway company, was a practice so liable to abuse, and one which would open the door to such an overwhelming amount of undue influence, that we ought, on grounds of public policy, and irres- I.]
pective of any identification of the railway authorities with the candidate, and in the absence of all proof of agency, to mark it with disapproval by setting aside the election upon that ground alone.
To this argument I can only repeat the answer already given by the Chief J. Justice, that if we were to accede to this argument we should be making, not administering, the law, and that whatever grounds such considerations may afford for alteration of the law, that is a matter for the appreciation of the Legislature and not one which can influence the decision of the courts.
Chalut's Case.
The conduct of the respondent and his agents in this case seems to me entirely free from any taint of illegality.
Mr. Chalut was a warm supporter of the respondent, and the chairman of his principal committee.
He was asked to go to a parish at some distance to canvass and make arrangements for the election, and $20 were sent him by the respondent for his expenses, and $5 by Mr. Tranchemontagne, a member of the committee. I can see no objection to this. The money was not an unreasonable indemnity for the exexpenses and the loss of time of a professional man-a notary-for some four days. It is not and could not have been pretended that it was a colourable payment, cloaking a bribe, and I know of no law which prohibits the bond fide employment of electors for lawful purposes incidental to the election. The case was rightly dismissed by the court below.
Cold-Rithier's Case.
It is sufficient to say, as the learned judge held, that there was no evidence of any agency to identify the respondent with any act of Mr. Co6, and it is matter of surprise that this case, decided on grounds so very plain and satisfactory as those on which it has been placed by Mr. Justice Doherty, should have been made the subject of appeal.
Maxwell's
It cannot be denied that the contents of the letter sent by Daveluy to Maxwell create a strong presumption that the money enclosed in it was intended, under color of paying for the entertainment' of voters at a preceding provincial election, for the puirpose of unduly influencing Maxwell and inducing him to support the respondent; in plain words, for the purpose of bribing him, and this presumption is not removed or weakened, but rather strengthened, by the extremely unsatisfactorily account which Maxwell gave of the transaction between Daveluy himself, and especially by his story about the account for butter and shingles, which is only put forward after the adjournment of the court has given him an opportunity of conversing with others.
But the evidence wholly fails, in my opinion, to connect the respondent with the corrupt act of Daveluy, if we are to assume such an act as established. There is no proof of the agency of Davelay himself. St. Cyr, though an agent of the respondent, as being a member of the committee, is not shown to have been privy in any manner to the purpose of Davelay, or to have been cognizant of the contents of the letter in which the money was enclosed, or of the purpose for which it was designed. As to Hdnault,his agency was a limited agency-that of a public speaker-and for his acts beyond those performed in that character the respondent cannot be made liable. No proposition in election law is better established than that an agent, who is not a general agent, but an agent with powers expressly limited, cannot bind the candidate by anything done beyond the scope of his authority.
Windsor (1) ; Dur- VOL. Il.] SUPREME COURT OF CANADA.
ham (1); Bodmin (2); Westburq (3); Blackburn (4); North Norfolk ; Harwich (6).
ld6nault was a paid agent, not a voter, having no connection with the election or with the respondent beyond this, that he was brought from Montreal and employed strong,. to make a speech on the Sunday after mass at the church door at St. Damien. Anything he did in the course of this special agency would have bound the respondent, but everything done out of the line of his special employment as an orator can, on the authorities referred to, have no such effect. I therefore concur with Mr. Justice Doherty in the conclusion at which he arrived, in this as well as in the other cases, and I am of opinion that the appeal must be dismissed with costs.
satisfactory to be able to come to this conclusion, as upon a consideration of the whole evidence, I am convinced that the respondent desired and did his best to ensure a pure election, and I cannot help adding that I think the learned judge who tried the petition should have dismissed it with costs, which is the only respect, either as regards the results arrived at in the court below, or the reasons given for those results, in which I find any ground for differing from the judgment appealed against.
3.:
La p6tition attaque l'6lection de 1'Intim6 pour menbes corruptrices pratiqu6es par lui-m~me et par ses agents. Le siege n'est pas demand6 pour son adversaire.
Aux accusations portbes contre lui, l'Intim6 a r6pondu par une d6n6gation g6n6rale.
Lors de 1'audition de la cause, plusieurs de ces accusations out 6t6 abandonn~es comme n'ftant pas suppor- I4 t6es par la preuve.
Les p6titionnaires n'ont insist6 que sur cinq cas de corruption comme 16galement prou- 1'ooabea shonorable juge Doherty qui pr6sidait au procks 6tant d'un avis contraire, a renvoy6 la p6tition avec d6pens, par son jugement du 21 fevrier 1883. C'est de ce jugement qu'il y a appel A cette cour. Le premier de ces cas est celui de Lamarche, accus6 comme agent de 1'Intim6 d'avoir pay6 les d6penses de voyage de dix-neuf 6lecteurs pour se rendre de Montrial A Berthier, A leurs polls respectifs.
L'honorable juge en parlant du fait reproch6 A Lamarche, le qualifie de la manibre suivante :
Berihier L'honorable juge ayant reconnu que l'agence de Lamarche 6tait prouv6e, il est inutile d'analyser les t6moignages pour faire voir que ce fait a t6 16galement constat6, d'autant plus que le conseil de 1'Intim6 a positivement admis devant cette cour que cette agence 6tait prouv6e.
D'ailleurs la preuve ne laisse aucun doute sur ce sujet.
Afin d'appr6cier le v6ritable caractAre de 1'acte reproch6 A Lamarche, il est important de faire connaitre le d6tail de ses entrevues avee les 6lecteurs auxquels il a fourni des billets de passage.
Lamarche est conservateur et bien connu comme tel par la part active qu'il prend aux 6lections de son comt6. demeure A Berthier, mais tient un bureau d'affaires A Alontrial il se rend tous les jours. Ayant 6t6 navigateur, il dit qu'il connait tous les navigateurs. " Je connais nos ennemis et nos amis." La veille de l'lection il se rendit A bord des bateaux A vapeur Trois-Rivieres, Chambly, Terrebonne et Quebec pour y voir les 61ecteurs de Ber/hier qui 6taient employ6s A bord de ces bateaux. II ajoute qu'il a toujours fait cette besogne dans les 6lections qui ont en lieu 1'6t6.
11 fit ce jour-1A deux visites A bord de ces bateaur, Ia Founer, J. premibre entre neuf et dix heures du matin, pour s'assurer de la pr6sence et des dispositions des 6lecteurs qui se trouvaient a bord de ces bateaux, et la seconde vers une heure de 1'aprbs-midi pour leur donner les billets de passage qu'ils avaient exig6s de lui lors de sa premibre visite pour aller voter.
D'aprbs le t6moin Toly, c'est enti e 8j et 9 heures du matin que Lamarche s'est rendu A bord du Trois- Biviires.
En arrivant, dit ce timoin, il a un papier 5 il a nomm6 tous les voteurs A bord; apris qu'il a eu fini, it y a une couple de voteurs qui out dit: "on aimerait A partir aujourd'hui; si on ne part pas "ajourd'hui, on n'y va pas et on aimerait A avoir notre passage "pour aller et revenir, et on aimerait A aller chacun chez nous "avant d'aller voter." Oest tout ce que j'ai vu.
Q-Il avait une liste des 6lecteurs qui travaillaient A bord, il les a appel6s?
R-Oui, monsieur ; il avait leurs noms sur un petit papier.
Q-Et tous les 6lecteurs appelbs sont-ils ven-is ?
R-11 manquait peut-6tre bien quelques-uns.
Q-Combien y en avait-il A peu pr4s ?
R-Six A sept.
Q-Voulez-vous nous en nommer queques-uns ?
R-Oui, monsieur: Alfred Bruneau, il y avait : Dolphis Rocrais Q-Ensuite ?
R-Il y en avait d'autres, je ne me rappelle pas de leurs noms mais je sais qu'il y en avait d'autres.
Q Ils ont dit qu'ils voulaient avoir leur passage pour aller et revenir.
Q-Qu'est-ce qua Lamarche a dit, ?
R-Il a dit : " J'ai affaire A aller A bord d'un autre steamboat, je viendrai tous vous les apporter." Jo n'ai pas connaissance quand il est revenu.
Q-...Saveg-vous si ces gens-1A sont partis, toujours, pour aller voter. Q-Vous dites que vous n'avez pas connaissance quand il est revenu ?
R-Non, monsieur.
j
Q-Quelle heure pouvait-il 6tre quand il est venu dans ce temps- Fouier, .1 ?
R-Entre huit heures et demie et neuf heures.
Q-Du matin ?
Q-Pour qui Lamarche cabalait-il ?
R-II cabalait pour M. Cuthbert.
Q-Etait-il bien connu comme un partisan du DMfendeur? R-Je pense que oui.
Q-Le saviez-vous vous-mAme quo o'Atait un partisan de M. Oathbert?
R-II avait 1'air joliment chaud.
Q-Dans toutes les 61ections pr~c6dentes M. Outhbert s'tait pr6sent6 avait-il l'habitude de travailler?
Q-C'est un partisan n'est-ce pas ?
Dolphis Rocrais est un de ceux qui sont all6s voter avec un billet de passage fourni par Lamarche. L'extrait suivant de son t6moignage, confirme le fait important rapport6 par Joly que ce sont les 6lecteurs qui out demand6 des passes pour aller voter lorsque Lamarche s'est pr6sent6 A bord des bateaux la premidre fois le matin; qu'il est ensuite revenu pour leur apporter les passes.
11 s'exprime comme suit A ce sujet
Q -Qui vous avait donn6 cette passe ?
R-C'est M. Lamarche.
Q-M. Olivier Lamarche?
R-Oui.
Q-Quand a-t-il 6t6 vous donner cette passe ?
R-Je ne puis dire le temps.
Q-Est-ce la veille ou l'avant-veille de la votation ?
R-C'est la veille.
Q-Le matin ?
R-11 est venu i bord le matin.
Q-Quest-ce qu'il est venu faire le matin?
f-11 est venu voir comment il y avait de voteurs A bord. Q-Lui avez-vous parl6?
P-PNtais aupris.
Q-Qu'est-ce qu'il a dit?
R-Il a dit qu'il avait affaire A aller A terre.
Q-Quand il est venu pour demander les n Ins, comment a t-il demand6 cela et A qui parlait-il ?
R-A M. Pagd et A plusieurs autres.
Q-Qa'est-ce qu'il a dit?
R-11 a demand6 le nom des voteurs.
Q-Avait-il une liste A la main ?
R-Je ne peux pas dire.
Q-A-t-il demand6: un tel, un tel est-il ici, comment a-t-il demand6 ga ?
R-Je sais qu'il a demand6 les noms des voteurs.
Q-Les voteurs d'ot ? de Chicago, de Qu6bec, de Ia Chine ? R-De Berthier.
Q-Qu'est-ce qu'ils out r6pondu?
R-Ils ont dit qu'il y en avait et ils sont venus ; pas tous. Q-Plusieurs sont venus ?
R-Oui, d'autres 6taient en avant.
Q-Qu'est-ce qui s'est dit, ont-ils parl6 de billets de passage? R-Us ont demand6 des passes?
Q-Qui a demand6 ces passes ?
R-Quelqu'un de nous.
Q-Pour aller et revenir ?
R -- On a demand6 des passes pour descendre.
Q-Qu'est-ce que M. Lamarche a dit?
R-Il a dit: je vais aller A terre, j'ai d'autres affaires, ct il nous a laiss~s comme ga. Ensuite il est revenu, il s'en allait midi, je crois, il nous a apport6 des passes. Premidrement, il a th au salon et ensuite il nous a donn6 nos passes.
Dolphis Mass confirme les m6mes faits:
Q-Qu'est-ce que vous a dit le capitaine Duval quand il vous a donn6 cette passe-1A ?
R-Premibrement, M. Lamarche est venu A bord demander quels 6taient les voteurs qu'il y avait dans le Steamboat, moi-meme, je lui ai nomm6 des gens que je connaissais qui avaient droit de vote; it a marqu6 les noms, et il a mont6 en haut au salon; il a demand6 au capitaine Duval la permission d'avoir les voteurs; le capitaine a dit : avee plaisir, je ne puis pas refuser cela; ils sont maitres d'aller pour qui bon leur semblera ; de sprte que l. Lamarche a parti ; il eat all A terre, etje n'ai pas vu rien de plus,
Q-II a vu les #1ecteurs ?
R-Pardon; il a eu la permission du capitaine, et il eat venu A bord dans l'aprbs-midi; il a mont6 au salon; il est venu trouver le capitaine ; il a vu plusieurs des gens qui sont ici presents et qui ont e t6entendus comme t6moins. Je n'ai pas vu donner les passes moi- Fournier, J. mame, mais au moins il a mont6 en baut, et il a donn6 des passes au capitaine. J'en ai eu une qui venait du capitaine. Je ne peux pas dire si elle venait de M. Lamarche ou de d'autres ; mais je l'ai eue du capitaine.
Q-A-t-il t6 question de passes devant vous quand Lamarche est venu ?
R-La question des passes, je ne puis pas dire rien A 1'6gard des passes des autres. J'entendais dire que plusieurs dsiraient en avoir, mais je ne peux pas dire rien de plus.
Octave Parent constate aussi le fait des deux visites de Lamarche de la manibre suivante:
Q-Avez-vous vu M. Olivier Lamarche ce jour-li ?
Q-Eh bien, dans quelle occasion et A quel propos, I'avez-vous vu ? R-Je 1'ai vu au gangway de Farriare qui s'informait des gens qui avaient droit de vote, et il appelait leurs noms.
Q-II avait une liste ?
R-Celui qui 6tait IA, il avait un petit morceau dc papier et colui qui se trouvait pr6sent, il disait: it est ici.
Q-Ensuite ?
B-II m's demand6 : Vas-tu voter ? J'ai dit oui. II a dit : Si tu veux aller voter, je vais aller te chercher une passe. Je lui ai dit : C'est bien correct. Dans I'apr~s-midi, il est venu avec une passe, ou un ticket; c'6tait pareil A celui qui est exhib6; je pais vous Ia montrer.
Joseph Pag6 parle aussi de la visite du matin-mais il commet une erreur 6vidente en disant que c'est alors qu'il a en sa passe :
Q.-Dites A la Cour dans quelles circonstances et oii il vous a donnA cette passe.
R.-II est venu le matn A bord du steamboat le Trois-Rivibres, il m'a demand si je descendais; j'ai dit: oui; il a dit: " Voil une passe si tu veux descendre, descends."
J'ai descendu.
Q.-Aviez-vous besoin de cette passe-14 pour descendre ? R.-Eh bien I je pense que oui.
Q.-Vous
R-Oui,
Q.-II Q. A
For..... A
Dans son t6moignage, Lamarche dit qu'il est all6 deux fois A bord des bateaux pour y voir les navigateurs qui 6taient 6lecteurs; il y est d'abord le matin et y est ensuite retourn6 dans l'aprs-midi vers une heure on deux.
C'est aprbs sa premiere visite aux bateaux qu'il a vu M. Labelle, 1'agent des billets (ticket agent) du chemin de fer Q. M. 0. & 0., pour se procurer les billets qu'il a remis aux 6lecteurs.
Tous ces t6moignages 6tablissent d'une manibre certaine que Lamarche est d'abord all6 aux steamers une premibre fois pour s'assurer du nombre de voteurs qu'il y avait et de leurs dispositions A aller voter. Les connaissant tous d'avance et depuis longtemps des conservateurs comme lui-mame, il n'a pas eu, parait-il, le trouble de les solliciter de voter pour son candidat, 1'Intim6, car ils 6taient eux-mmes de ses partisans, bien dispos6s A voter, mais A une condition cependant, celle d'avoir leur passage pour aller et revenir. O'est la premibre chose dont on l'informe, comme le rapporte le t6moin Joly : " On aimerait A partir aujourd'hui; " si on ne part pas aujourd'hui on n'y va pas, et on " aimerait A avoir notre passage pour aller et revenir, " et on aimerait A aller chacun chez nous avant d'aller " voter."
Ils ont demand6 des passes, dit Rocrais. "J'avais besoin de cette passe-1A pour descendre," dit BERTHIER Pag.
Ainsi renseign6 sur la disposition de ces 6lecteurs de CASE.
Faurnier,. ~ne pas aller voter A moins d'avoir leur passage gratuitement, Lamarche se rend aupr~s de M. L"belle, le prepos6 h la vente des billets de passage (ticket agent) sur le chemin de fer Q. M. 0. et 0., alors la propri6t6 du gouvernement de Qudbec qui 1'exploitait pour son propre compte.
Lamarche rapporte comme suit son entrevue avec M. Labelle:
Q -Vous n'avez pas eu besoin de demander d'autorisation, it vous les a accord6s de suite ?
R-Oui, quand je suis a1 au bureau de M. Labelle je lui ai dit que j'avais vu M. Lamare et que je lui avais demand6 de laisser descendre les navigateurs. Je lui ai dit que M. Lambre leur donnait la permission de venir voter. Quand je lui (1f. Lamare) ai demand6 cela it ne m'a pas demand6 si c'4tait pour M. Cuthbert on M. Sylvestre. Je lui ai dit: Je voudrais les avoir pour venir voter. II m'a dit: c'est malais6, il faudra que vous vous arrangiez avec le capitaine, il faudra qu'il les remplace par les matelots du Chambly. TAche de voir le capitaine Lamoureux et le capitaine Duval pour qu'ils s'arrangent. Je les ai vus et le capitaine Lanoureux du Chambly a promis des hommes an capitaine Duval du Trois-Riv ires si ce dernier allait faire son voyage de plaisir le lundi soir.
Ensuite, c'est alors que je suis all au bureau de M. Labelle. Je lui ai dit qu'il me fallait des passes et il m'a dit : " combien t'en faut-il? Je lui ai dit: dix-sept A vingt.
m'a dit: " tu reviendras tant6t." Je suis repass6, j'allais voir M. Wurtele pour avoir deux hommes qui devaient venir voter i il y en avait un qui 6tait employ6 sur le chemin & l'Epiphanie. II m'a dit: tout 9a sera arrang6. Grondines m'a dit: vous avez une lettre ici pour vous.
Cettre lettre contenait les passes on billets demand6s.
A 1'argument l'Intim6 a pr6tendu que ces passes avaient 6t6 donn6es gratuitement.
11 est vrai que Lamarche n'a rien pay6 pour les obtenir; mais en examinant les passes on voit de suite que ce sont des billets de passages ordinaires faits dans la forme suivante:
J. A leur face il appert que les billets ont 6t6 vendus quoique A un taux r~duit, et la preuve 6tablit que la valeur de ces billets 6tait de $1.50 chaque.
Ce fait constitue-t-il une violation de la section 96 de 1'acte des 6lections de 1874 ? Cette section d6fend le louage de voitures pour le transport des 61ecteurs aux polls, le paiement des passages de chemin de fer on autres d6penses des .voteurs, par un candidat ou ses agents et d6clare tels actes ill6gaux etpunissables d'une amende de $100.
La section 98 met en outre ces actes au rang des men6es corruptrices.
Dans le cas actuel il y a une preuve primd facie du paiement des billets de passage en question. C'est celle qui resulte des billets eux-m6mes comportant la d6claration qu'ils ont 6t6 vendus prix r~duits. Lamarche dit bien qu'il n'a rien pay6 lui-mime, mais comme ils ne lui sont parvenus qu'apris avoir pass6 en diverses mains, il n'est pas en 6tat de dire s'ils ont 6t6 donn6s on remis en 6change du prix ordinaire. L'agent des billets, Labelle, n'ayant pas 6t6 appel6 comme t6moin, on ne doit point pr6sumer contre la preuve faite par les billets, qu'il les a doun6s sans en recevoir le prix. D'autres partisans que Lamarche ont pu en payer le prix. Labelle lui-m6me, s'il ne 'a pas requ de quelqu'un a dri sans doute s'en charger puisqu'il les a vendus, ainsi que les billets le comportent.
Il est donc certain que ces billets ont 6t6 vendus, bien qu'on ne sache pas par qui ils ont 6t0 paybs. Toutefois, d'aprbs la preuve il n'est pas possible de dire qu'ils ont 6t6 donn6s. Pour en arriver A cette conclusion, il aurait an moins fallu faire entendre Labelle pour constater qu'il n'a regn de CE.ss. personne le prix des passages en question, et qu'il 6tait autoris6 a faire de pareilles lib6ralit6s. En l'absenced'une n telle preuve on doit presumer que Labelle n'a livr6 les billets qu'aprbs en avoir regu le prix, ainsi que les billets en font foi.
En cons6quence je considbre la preuve faite comme 4tant suffisante pour constater que le paiement des passages de chemins de fer de ces 17 on 20 voteurs a t1 fait en contravention A l'acte des 6lections de 1874. Ce paiement 6tant, par la section 98, mis an rang des menoes corruptrices, doit entrainer la nullit6 de l'blection. Si Labelle a donn6 les billets et s'il avait le pouvoir de le faire, on n'aurait sans doute pas manqu6 d'en faire la preuve
Aucune tentative A cet effet n'a t6 faite. Si les billets ont t6 donn6s sans autorisation, ce serait un d6tournement frauduleux commis au d6triment du gouvernement, propri6taire du chemin de fer, et le prix lui en serait dit par Labelle aussi bien que par ceux qui en ont profit6.
En admettant meme qu'il n'ait rien 6t pay6 et qu'il ne soit rien pour ces billets, leur remise aux 6lecteurs en question et dans les circonstances particulibres ci-dessus rapport~es, ne constitue-t-elle pas une violation de la section 92 de l'Acte des Elections de 1874 ?
Le premier paragraphe de cette section est ainsi con9u:
Sur ce point de la cause, en prenant pour vrai que les billets en question ont 6t6 remis gratuitement, l'honorable juge Doherty s'exprime ainsi
J. gratis
Se fondant sur I'autorit6 du juge Mellor dans la cause de Bolton (1) 'honorable juge Doherty en vient A la conclusion que des billets donn6s comme 1'ont 6t6 ceux dont il s'agit ne constitue pas une valable consideration
(valuable consideration) suivant l'intention de l'acte des elections.
Dans cette cause, il s'agissait de savoir si le paiement des d6penses de voyage des voteurs constituait un acte de corruption.
Une circulaire conque dans les termes suivants avait t adress6e A des 6lecteurs:
trust
Les p6titionnaires pr6tendaient que 1'envoi de cette lettre et des passes de chemin de fer constituait soit un acte de corruption, conform6ment A la doctrine consacr6e par la Chambre des Lords dans la cause de
Cooper vs Slade, soit encore un acte de corruption en contravention A la sec. 2 de l'acte des men~es corrup.
trices de 1854: et 20 que si ce n'6tait pas un acte de corruption que c'6tait dans tons les cas un acte ill6gal qui, ayant 6t6 volontairement et syst6matiquement fait dans le but d'influencer I'6lection, devait avoir l'effet de la faire d~clarer nulle.
serait inutile de rapporter les arguments faits par l'honorable juge pour 6tablir une distinction entre cette cause et celle de Cooper et Slade dont il admet la doctrine.
suffit de dire que suivant son interpr6tation la circulaire dans cette cause.ne faisait pas comme dans celle de Cooper et Slade, de la remise des passes une condition du vote, et que dans son opinion les passes ne pouvaient pas tre consid6rbes comme une consid6ration valable (valuable consideration) suivant l'intention de la section 2 de l'acte des men6es corruptrices. Ayant cart6 ces deux objections, il lui restait h d&cider si le paiement des d~penses de voyage des 6lecteurs qui n'6tait alors, d'aprbs la loi imp6riale, que simplement trait6 comme un acte ill6gal, punissable par amende, pouvait avoir de plus l'effet d'entrainer la nullit6 de l'61ection.
L'honorable juge, aprbs avoir fait 1'historique de ]a 16gislation imp6riale au sajet du paiement des d&penses de transport des voteurs, et bien clairement constat6 que la loi anglaise en d~clarant ce paiement ill6gal n'en avait pas fait une men6e corraptrice, qu'elle avait soigneusement 6vit6 d'en faire la d~claration (1), conclut en ces termes:
I Willes; Cette dernibre proposition est certainement correcte, et la conclusion A laquelle en vient 1'honorable juge que le paiement des frais de transport des voteurs tout en 6tant ill6gal ne pouvait avoir l'effet d'entrainer la nullit6 de 1'61ection et qu'il ne constituait pas une men6e corruptrice ayant cet effet, est en stricte conformite A la loi anglaise.
Mais c'est faire une 6trange confusion et m6connaitre compl6tement 1'6tat de notre Fournier. J. propre 16gislation sur le m~me sujet que de vouloir faire application A la pr6sente cause des principes de la d6cision rendue par 1'honorable juge Mellor, en conformit6 de lois diff(rentes.
Au contraire de la loi imp~riale notre acte d'61ection, de 1874, d6clare positivement que le paiement du transport des voteurs, est une men~e corruptrice.
section 96 d~clare comme suit:
it that to Le reste de la section prononce une penalit6 de $100 pour chacune de ces offenses, et la peine de d6qualification contre tout voteur pour louage de voitures en contravention A cette section.
La loi anglaise, comme notre section 96, a prononc6 la peine d'amende contre ces offenses,-mais la n6tre est all6e beaucoup plus loin;-par la section 98, elle a d6clar6 que los offenses 6num6rbes dans la sec. 96 constitueraient des men~es corruptrices, suivant 1'intention de l'acte des6lections. La sec. 98 declare que:
rerson wilful StJPREI COURT OF CANADA.
[VOL IX. est 6vident, d'apras la dernibre partie de cette section que la section 96 se trouve sujette A 1'effet de la sec. J.98-et que partant tous les adtes mentionnis dans cette derni~re section, sont d6clar6s tre des menbes corruptrices. O'est ce qu'a d6cid6 cette Cour dans la cause de 1'61ection de Selkirk, (1)
Comme on le voit notre 16gislation ne laisse aucun doute sur la question de savoir si le paiement du transport des voteurs constitue une men6e corruptrice. L'honorablejuge Mellor, s'il avait en A d6cider cette question d'aprbs nos lois, n'aurait sans doute pas eu un seul moment d'h6sitation A d6clarer le contraire de ce qu'il a d6cid6 correctement d'aprbs la loi anglaise.
L'appelant essaie encore de tirer avantage de 1'argument fait par l'honorable juge Mellor pour 6tablir que la remise des passes ne pouvait pas tre consid6r6e comme une valable consideration suivant l'intention de la sec. 2, acte de 1854-men6es corruptrices, acte imp. Essayant de d~montrer qu'il n'y avait pas en cela un acte de corruption, l'honorable juge dit A ce sujet: but L'honorable juge ne fait aucun raisonnement pour d6montrer que la remise d'une passe n'est pas en r6alit6 une valable consideration; et il faut avouer qu'il eat difficile, pour ne pas dire impossible, d'en faire pour d6montrer une pareille proposition.
II se borne A dire qu'il est difficile de voir quelle valeur regoit le voteur par la remise d'une passe pour aller an poll. Ceci serait assez vrai si 1'on fait abstraction des devoirs du voteur, si 1'on considbre que son int6r6t mat6riel du moment, et que pour lui c'est un d6rangement de ses affaires ordinaires, que c'est une perte de temps d'aller au poll pour laquello la promenade qu'on lui fait faire gratuitement n'est pas une compensation, on peut alors dire cominme 1'honorable juge qu'on ne serait pas o-h est - .
l'avantage du voteur. Mais si on se place A un point de vue plus 6lev6, si on consid~re que le droit de franchise accord6 an voteur est un devoir de la plus haute importance qu'il doit exercer librement et sans aucune consid6ration dans l'int6rat public; si on 1'envisage an point de vue du principe 6nonc6 par Lord Mansfield:
on comprendra alors bien facilement quel avantage, valeur on consid6ration regoit le voteur qui an lieu d'aller de lui-m~me, A ses d6pens, enregistrer son vote, regoit ses frais de transport sous la forme d'une passe.
Deux voteurs voisins partent ensemble pour aller voter disons, comme dans le cas actuel, de Montrial A Berthier, l'un paie son billet dont le prix est de $1.50, l'autre a requ d'un Lamarche quelconque une passe avec laquelle il fait le m~me voyage sans rien d6bourser.
Par quel 6trange abus du raisonnement peut-on dire que le dernier n'a pas effectivement requ sous la forme de cette passe une valable consid6ration au montant de $1.50.
Cette passe pour lui avoir 6t6 donn6e n'a-t-elle pas autant de valeur que le billet, n'en coste-t-il pas autant A la compagnie du chemin de fer pour les frais du transport de celui qui a une passe gratuite que pour celui qui a un billet dont il a pay6 le prix. Tous deux regoivent par leur transport un service de mme valeur, avec la diff6rence que l'un le regoit gratuitement et que l'autre en paie le prix. Pour appuyer cette pr6tention si contraire au plus simple'bon sens, on fait encore une comparaison qui n'a de valeur que par son manque absolu de justesse.
C'est celle de comparer une passe de chemin de for au service que rendrait un particulier se rendant au poll qui d6passant en route un 6lecteur qui s'y rend A pied, lui offre de monter dans sa voiture pour faire ce trajet. Mais on oublie qu'il y a plus de points de dissimilitude que de ressemblance entre les deux choses compares. Le particulier est absolument libre dans l'emploi de sa voiture; il n'est sujet au contr6le de personne; il peut la louer s'il le vent, en donner l'usage gratuitement il n'a de compte A rendre A personne.
II n'en est pas de m6me des administrations de chemins de fer, elles ne sont que des fid6icommissaires administrant la propri6t6 des actionnaires, sp6cialement dans le but d'en tirer du profit; leur administration est r6glement6e dans ses plus petits d6tails.
Elles ne pourraient pas comme un particulier user g6n6reusement de leurs moyens de transport, les mettre gratuitement h la disposition des 6lecteurs, sans une autorisation sp6ciale A cet effet, A moins de forfaire A leur mandat.
On ne peut donc pas comparer le fait du particulier qui prend en route un voteur dans sa voiture, avec le fait d'6mission gratuite de passes par les compagnies de chemins de fer. . Il est inutile de faire remarquer A quels abus extraordinaires donnerait lieu 1'admission de la doctrine que la remise de passes aux 6lecteurs pour les faire transporter au poll n'est pas une valable consid6ration constituant un acte de corruption, suivant le parag. ler de la sec. 92, en meme temps qu'une violation de la sec. 96, d6clar6e une men6e corruptrice par la sec. 98. d6cision do la Chambre des Lords dans la cause de Cooper et Slade est tout A fait applicable A la prbsente cause.
La condition d'avoir des passes pour aller voter, quoique impos6e A Lamarche par les 6lecteurs euxmames et accept6e par lui, n'en constitue pas moins une consid6ration sans laquelle, il est clair, cdmme le disent ces 6lecteurs, ils ne seraient pas all6s voter. Cette condition fait rentrer exactement le cas actuel sous 1'effet de la d6cision de Cooper et Slade.
La question du paiement des frais du transport des F voteurs au poll est d6ji venu devant nos cours et a 6to d6clar6 dans la cause de Hickson vs Abbott (1) constituer un acte de corruption. La question a 6t6 soulev6e dans les circonstances suivantes:
but Dans cette cause de Hickson vs Abbott on voit que non-seulement les voteurs comme dans le cas de Berthier 6taient dispos6s A voter, mais qu'ils s'y en allaient de fait, he knew the voters were going up to vote. Malgr6 cela, la remise des billets de passage dont les 6lecteurs n'avaient pas fait une condition, comme l'avaient fait ceux dont il s'agit en cette cause, fut consid6rbe comme un acte suffisant de corruption. A plus forte raison doiton conclure de la mame manibre lorsque la remise du billet a 6t6 exig6e par le voteur comme condition pour aller voter.
Dans la cause de North Simcoe, il a 6t d6cid6 par 1'honorable vice-chancellier Strong, maintenant membre de cette cour, que le paiement des d6penses de voyage des 6lecteurs pour aller au poll et en revenir, 6tait une men~e corruptrice entrainant la nullit6 de l'6lection. La loi d'Ontario sur laquelle cette d6cision a t6 rendue contenait la mime disposition A cet 6gard que la loi f~d~rale.
Dans les deur derniers cas cit6s, il est vrai que la preuve du paiement des billets dans un cas et celle du paiement du prix d'un train de chemin de fer dans l'autre a 6t6 faite, mais la position du voteur n'tait pas diff6rente de celle de celui qui regoit une passe gratuite. L'avantage dans les deux cas est le meme, et en r6alit6 il y a toujours paiement des frais de transport. O'est aux d6pens du candidat ou de ses agents lorsque le prix des billets est acquitt6 par ceux-ci, et aux d~pens de la compagnie de chemin de fer lorsque le voteur est transport6 au moyen d'une passe donn6e par celle-ci, et dans tons les cas il y a un acte de corruption suffisant pour faire d6clarer 1'61ection nulle.
I y a un autre cas bien flagrant de corruption, c'est celui de Maxwell. Ce voteur, ordinairement partisan z616 et actif, avait manifest6 de la mauvaise humeur et de l'indiff6rence dans l'6lection dont il s'agit A propos d'une pr6tendue dette qu'il r~clamait pour une blection ant6rieure.
Deux jours seulement avant la votation, il reput une lettre sans signature, contenant $25.00, et les seuls mots " envoyez fort vous et vos gargons." lettre ne contenait aucune autre explication.
La lettre et l'argent furent remis A Maxwell par le t6moin H6nault, envoy6 par le comit6 central conservateur de Montrial pour prendre part A 1'61ection, etc.
Sur invitation, il changea sa premidre destination et s'arr~ta A Berthier. Comme le comit6 local du d~fendeur avait besoin de quelqu'un pour aller porter la parole aux 6lecteurs de St-Damien, le lendemain, dimanche, on demanda Hdnaull pour remplir cette fonction.
Ce doit Atre le pr6sident du comit6, dit-il, qui lui fit cette demande.
Je m's dit dit: A St et dit A St ajoute que ce sont les gens du comit6 qui lui out dit cela et qu'on 1'y a fait conduire en voiture.
Dans cette entrevue au comit6, il se rappelle avoir vu M. Tellier, Chalut, des membres importants de ce comit6, et le d6fendeur lui-m6me qui savait que Hinault allait & St-Damien. O'est au comit6 qu'il dit avoir requ ses instructions et qu'on luj a dit qu'il devait aller A St- Damien repr6senter le d6fendeur et rencontrer suivant toute probabilit6 le s6nateur Guivremont. Haault avait en outre, le mime soir, requ de St. Cyr, un autre membre du comit6, la commission de remettre personnellement, au nomm6 Maxwell de St-Damien une lettre en lui disant : " fais-y attention, il y a de 1'argent dedans." La lettre avant d'avoir remise s'6tant trouv6e d6cachet6e dans ses poches, il a vu qu'elle contenait la somme de $25 et les mots rapport6s plus haut: "Envoyez fort, vous et vos gargons."
Aprbs s'6tre acquitt6 de la premibre partie de ses fonctions en adressant la parole aux 6lecteurs de St- Damien, aprbs la messe, il se rendit chez Maxwell et lui remit la lettre et les $25.00.
Ce dernier joua la surprise, et dit en recevant cet argent qu'il devait y avoir erreur.--" doit 6tre une trompe," dit-il. I a ajout6 qu'il n'attendait d'argent de personne dans le moment. Sur les instances de Hanault, il prit l'argent en disant: " O'est bon, si c'est pour moi, je le garderai, et si ce n'est pas pour moi, je le renverrai, et il 'a gard6."
Dans son t6moignage il donne plusieurs versions contradictoires pour expliquer 1'origine de cet argent. Dans ses r6ponses comme t6moin il dit que c'est de 1'argent que Daveluy lui devait et qu'il lui a envoye pour les ddpenses de l'lection de M. Robillard; aussi pour une promesse de donner la majorit6 dans la paroisse et pour des d6penses faites chez lui.
Ce n'est pas vingt-une piastres qu'il lui avait promis, c'6tait e June r6compense.
Hnault lui a dit que c'6tait 1'argent pour 1'61ection; mais il ne savait pas si c'6tait pour celle-lA ou bien pour 1'autre. Questionn6 de nouveau sur ce que Hdnault lui a dit en remettant 1'argent, il fait le r6cit incoh&rent qui suit :
R.-Il dit cela: j'apporte ..... J'ai dit j'en Cthbert J'ai dit: et Jo A
Q.-Dans 6tait Robillard dit rcompense.
Par la suite de son t6moignage on voit qu'il pr6tend qu'une promesse de r6compense lui avait t6 faite par Daveluy dans une 6lection pr6c6dente entre Robillard et Sylvestre, et que c'est en ex~cution de cette promesse que les $25 en question lui avaient 6t6 envoyees. confirme cette assertion dans plusieurs autres parties de son t6moignage.
Comprenant le danger d'une telle preuve, le savant conseil du d6fendeur fait de grands efforts pour faire admettre 9 Maxwell que ce devait tre en paiement d'un compte que Davelu lui avait fait remettre la somme en question. Malgr6 cela, Maxwell persiste, toujours A dire que c'est pour une r6compense promise. II dit positivement qu'il n'avait rien vendu i Daveluy; que Daveluy ne lui devait rien en dehors de cette promesse, ni pour provisions ni autre chose qu'il aurait eu de lui. Il r6phte encore une troisibme fois, positivement, que Davelay ne lui devait rien.
MaiS chose extraordinaire, la cour s'ajourne pendant quelques instants, et de suite, Maxwell est approch6 par Lamarche, 1'homme aux billets de chemin de fer, et aprbs quelques Fournier, J. instants d'entretien avec lui, il revient reprendre la suite de son t6moignage dans lequel il contredit, avec une audacieuse impudence, tout ce qu'il vient de dire au sujet des $25.
Aprbs son entretien avec Lamarche, il demande A ajouter ce qui suit A son t6moignage:
j'ai dit tinette et
Davelty
Les trausquestions qui lui ont 6t6 soumises font voir que ce r6cit n'est qu'un tissu de fausset6s qui m6riterait plus d'6tre discut6 dans une poursuite pour parjure que dans une contestation comme celle-ci.
Quoi qu'il en soit, dans tout cet amas de fausset6s, de contradictions et de mensonges qui forment son t6moignage, Maxwell en a dit beaucoup plus qu'il ne faut pour prouver l'acte de corruption dont il s'est rendu coupable.
Sur ce point je ne crois pas que les opinions de la cour soient partag6es.
Il ne reste done qu'A savoir si l'on peut en faire remonter la cons6quence jusqu'au membre si6geant et si la preuve de 1'agence est suffisante pour produire cet effet.
Les faits rapport6s plus haut au sujet d'Hiaault constatent amplement son agence.
C'est de St-Cyr, un des membres du comit6 et partisan actif du d6fendeur, qu'il regoit la lettre qu'il doit remettre A Maxwell, et du comit6 qu'il prend ses instructions pour aller soutenir les int6r~ts de la candidature du d6fendeur, A St-Damien, B et A la connaissance de ce dernier. C'est encore dans le Comit6 que le lendemain il regoit ses instructions et ses r~i documents pour aller repr6senter le d6fendeur i un poll J dans 1'Isle Dupas.
I n'est pas possible de ne pas consid6rer Hinault comme agent du d6tendeur en appliquant aux faits de cette cause la doctrine 6nonc6e au sujet de 1'agence par le juge Blackburn dans la cause de Taunton. Apris avoir fait observer que les ragles concernant l'agence en matibres parlementaires sont bien diff6rentes de celles de l'agence d'aprbs la loi commune.
ajoute:
Quoique les faits 6tablissent suffisamment que Hdnault 6tait un agent, si cependant on le consid6rait que comme un sous-agent, ses actes auraient encore les memes cons6quences sur la validit6 de l'61ection. Sir William Ritchie, le pr6sident de cette cour, a 6nonc6 ce principe de la manibre suivante dans la cause de Cimon et Perrault (1).
it to take the at the Les principes en matibre d'agence 6lectorale sont trop bien connus pour qu'il soit n6cessaire de citer beaucoup d'autorit6s sur ce point. Il suffit de r~ffrer ! celles contenues dans le factum des Appelants et A celles mentionn6es dans les causes citbes.
Comme il est impossible d'ajouter foi A l'explication donn6e en dernier lieu par Maxwell que les $25 6taient en paiement d'un compte, et que 1'on ne pent faire autrement que d'adopter sa premiere version tant de fois r6p6t6e que c'6tait en paiement d'une dette d'une 6lec- -tion prbc~dente, il n'est pas douteux qu'un semblable paiement est un acte de corruption. Cette question a d6ji t d6cid6e bien des fois, et entre autres dans la cause de North Ontario (2), dans celle de Coventry (1) et aussi dans la cause d'Argenteuil (3.)
Sil est et6 possible de donner use explication de ce paiement qui n'eit pas t6 aussi compromettante que celle de Maxwell, le D6fendeur e rt sans doute fait eatendre Daveluy. L'omission de faire entendre ce t6moin forme une forte pr6somption que le fait en question ne pouvait pas 6tre contredit.
Cette doctrine est adopt~e dans la cause de Bewdley (4) et dans celle de Tewkesbury (5).
doit done rester 6tabli d'apris les autorit6s que les $25 6taient pour payer une ancienne dette d'61ection.
Ce paiement n'eit sans doute pas 6t fait pendant l'6lection qui 6tait A la veille de se terminer, si 1'on n'eit pas senti la n6cessit6 de r6veiller le zble de Maxwell. Aussi c'est avec une espbce de cri de guerre qu'on lui remet cet argent: " Envoyez fort, vous et vos gargons."
Je n'ai aucun doute bur lea deux points soulev6s par ce cas; je suis d'opinion que le paiement des $25, constitue un acte de corruption et que 1'agence de Hinault est amplement prouv6e.
reste encore deux autres cas, ceux de Rithier et de Chalut.
Dans le premier il s'agit des frais de transport d'un 6lecteur au poll, je suis d'opinion que 1'agence de C6i qui a fait 1'engagement n'est pas suffisamment prouvee. Jur.
Quant an notaire Chalut, il s'agit d'une somme qui lii a ti pay6e pour l'envoyer dans la paroisse de Saint- Gabriel pour organiser les partisans du d6fendeur. O'est comme cabaleur pay6 (paid canvasser) qu'il a 6t6 Fournierenvoy6 Il n'est pas prouv6 qu'il ait fait aucun acte de corruption on autre acte ill6gal quelconque pendant les quelques jours qu'il a pass6s dans cette paroisse A soutenir les int6rtts do la candidature du d6fendeur. section 73 de 1'acte des 6lections autorise 1'emploi de cabaleurs salari6s,-mais dans le cas oil le cabaleur est voteur est d6qualifi6.
C'est la seule peine pronone6e par la loi. Dans l'6lection de Qutbec-Est (1), on a mis en question la 16galit6 de cette facult6 qui mane fatalement A 1'abus.
On y avait employ6 un nombre assez consid6rable pour faire voir que l'emploi des cabaleurs 6tait un moyen indirect de s'assurer le vote par une consid6ration p6cuniaire. Toutefois 1'honorable juge Meredith qui d~cida la cause, quoique d'opinion qu'il y avait en de l'imprudence dans 1'emploi d'un aussi grand nombre de cabaleurs, ne crut pas qu'on s'6tait rendu jusqu'A l'abus. Mais comme il 6tait 6vident, que l'emploi de cabaleurs salaris ne pouvait avoir que de mauvais effets, la 16gislature de Qudbec a fait disparaitre cette disposition de ses lois 6lectorales.
La l6gislature d'Ontario en a fait autant. Cette disposition ne fait plus tache que dans les lois 6lectorales qui, il faut l'esp6rer, feront bient6t disparaitre la facult6 d'employer ces personnages de caractbre le plus souvent plus que douteux -ignorants, absolument incapables de traiter des afaires publiques, n'ayant presque pas d'autres armes que la calomnie-faisant la plupart du temps leur vile besogne la nuit-toujours hors la pr6sence d'un adversaire et qu'on devrait proscrire comme n'6tant que des calomniateurs A gage.
Cependant cette disposition existant encore dans la loi f6d6rale, il 6tait loisible an d6fendeur d'en prendre avantage, et comme son cabaleur Chalut, que je ne veux pas du tout comparer A ceux auxquels j'ai fait allusion plus haut, n'a fait aucun acte ill6gal en s'acquittant de sa mission, I'61ection du d6fendeur Fore, J. ne saurait 6tre aucunement affect6e en cons6quence de ce fait.
En terminant je veux ajouter une observation sur le principe que 1'on a essay6 d'6tablir dans cette cour, viz. :-qu'une fois qu'ug. juge en premibre instance a prononc6 sur les faits, qu'il a rendu, comme on dit, son finding sur ces faits, qu'une cour d'appel ne doit pas renverser ce finding. Je crois qu'admettre ce principe est une violation directe du statut qui a cr66 cette cour.
Le droit d'appel est sans limite sur le droit comme sur les faits, et il est du devoir de tous les juges d'examiner la preuve comme le juge de premi6re instance et de rendre le jugement qu'ils croient que ce juge de premi6re instance aurait rendre.
Les juges de cette cour ne sont aucunnement li6s par le j ugement de la cour inf6rieure
O'est une grave erreur, suivant moi, et c'est uno erreur qui priverait un grand nombre de plaideurs de leur droit d'appel.
Ce principe n'a jamais 6t6 6nonc6 comme il 1'a 6t6 dernibrement, et je crois devoir protester contre une pareille doctrine qui tend A faire disparaitre le droit d'appel dans le neufdixibmes des causes. Je dois ajouter cependant que lorsque le juge en premi6re instance prononce sur la cr6dibilit6 d'un t6moin, son appr6ciation du t6moignage doit indubitablement pr6valoir, car il a l'avantage d'appr6cier le t6moignage par 1'apparence du t6moin, son h6sitation on sa promptitude A r6pondre, et si, dans un pareil cas, le juge d6clare qu'il croit un t6moin plus qu'un autre, alors une cour d'appel ne doit pas intervenir, mais autrement, je le r6phte, je proteste contre
1'admission d'une pareille doctrine.
Having come to a conclusion with regard to the matter of the railway tickets supplied by Lamarche to seventeen or eighteen voters to go from Montreal to Berthier to vote which, to my mind, is sufficient to avoid the election under consideration in this case, I think it unnecessary to refer to the other corrupt practices charged. The fact of the agency of Lamarche was satisfactorily proved dnd admitted on the trial. Is then the giving of the tickets in the way they are shown to have been given by Lamarche, a corrupt act under statutory provision so as to avoid the election ? They were issued at a reduced rate for going and returning, and are on their face primd facie evidence that they had, or were to have, been paid for. The railway was then owned by the Province of Quebec and operated by a general manager under its government. They were issued by the ticket agent at the request of Lamarche. The latter had been at a previous election a supporter and active cauvasser for the respondent, and was well known as such at the late election.
He asked for the tickets to be made good from the day he applied for them until the evening of polling day. No names were inserted in them as is done in the case of free passes. This took place at the railway office in Montreal before polling day.
From the testimony of Lamarche, it appears that he saw the several voters who kere sailors working on board of four steamers and obtained their consent to go to Berthier to vote on certain conditions hereinafter referred to.
He subsequently obtained the consent of the masters of the steamers to the sailors going to Berthier to vote. He then obtained the tickets, and the parties, or the most of them, went to that place and voted, as we may assume, for the respondent. 11.]
same thing, it appears, had been done at a previous elections, but if it was illegal the repetition must also be illegal. The first, then, that is told us about obtaining the tickets is what took place between Lamarche, and . - Labelle, the ticket agent.
Neither the latter nor Gron- Henry, J. dine, who gave them to Lamarche, were examined, nor did the respondent, in his evidence, refer to them, or in any way negative payment for them. Lamarche says he did not pay for them, but there is nothing to shew that they were not paid for. Lamarche, then, having given them, and they being worth to each voter that used them about a dollar and a half, we must conclude that they were of value to that extent to the parties that got them. Although Lamarche did not pay for them, it does not follow that they were not paid for.
He says he got them as he had done before, but without any explanation as to how, or upon what terms, they had been previously obtained.
If they were gratuitously given, that could easily have been shown by Labelle or some other in the ticket office.
If they had not been purchased it was easy to have shown it. When it was in the power of the respondent to have shown it, and he fails to do so, the conclusion should be that they were purchased. The presumption in the absence of any explanation is that they were paid for by, or charged to, some one. I think the onus was upon the respondent, to show that a public officer situated as Labelle was had assumed the responsibility of giving away the revenue of his employers.
I do not mean to say that it might not have been shown that that officer acted by direction from those above him, but as far as the evidence upon the point goes,-and by that alone are our conclusions to be arrived at-before we reach the point that the tickets were given gratuitously, we must assume that Labelle had done a wrong to those in whose interest he was engaged.
I think under the henry,
SUPREME COURT OF CANADA.
[VOL. IX. evidence I am not warranted in arriving at that conclusion. That they were not paid for must be an exception to the general rule, and if such an exception was made, it was for the respondent to prove it. In election cases, where attempts are so common to avoid statutory prohibitions, proof of such circumstances are more imperatively required.
I am not, however, compelled to decide whether the tickets were paid for or not, as I view the law. Lamarche first ascertained how many were willing to go, and then he got a sufficient number of tickets for them. The greater number of the recipients, if not the whole of them, went to Berthier and voted. Would all, or any of them, have gone if they had not got them ? and had not other conditions insisted on by the voters also been complied with? To see effects and trace results of the means adopted by Lamarche to secure the votes of the electors in question, I will refer to one of many statements in evidence. It may be alleged that he, when giving the tickets, did not make any condition as to the party for whom the parties were expected to vote. We have, however, the fact that Lamarche was actively engaged as the respondent's supporter at previous elections, and no doubt knew how these men had voted previously.
His residence was at Berthier (although he had an office in Montreal), and he personally knew them, and no doubt had good reason to believe that every one of them that could be induced to go to the election, would vote for the respondent. His object would be gained if they were induced to go. When on board one of the steamers, the Trois-Rividres, he asked a certain number of the employ6s of that steamer to go to vote at that election.
One of the witnesses (Joly) referring to Lamarche, says:- A papier; A il y a une couple de voteurs qui ont dit: " on aimerait A partir aujourd'hui ; si on ne peut aujourd'hui, on n'y va pas, et on aimerait ' A avoir notre passage, pour aller et revenir et on aimerait aller chacun chez nous avant d'aller voter."
It is shown that Lamarche agreed to those conditions. Henry, J. It appears also> from the testimony of other witnesses that at least some of the parties would not have gone to vote but for the inducements offered by Lamarche. In the first place, that their passage by rail going and returning should be provided for free ; that they should go the day ther were spoken to, and that they should be permitted to remain over a day or more with their families at Berthier. Lamarche, in order to secure their votes, had to obtain leave from the masters of the steamboats for the absence of the men from their employment and to provide for their passage by rail, going and returning, as before mentioned.
Votes were thus, we may assume, secured for the respondent that otherwise, we must also assume, he would not have received. The law by which we are to be governed in this case is to be found in sub-sections 1 and 3 of section 92, and in sections 96 and 98. Sub-section 1 is as follows: The following persons shall be deemed guilty of bribery and shall be punished accordingly.
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 to procure, or to endeavour 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, or corruptly does any such act as aforesaid on account of such voter having voted or refrained from voting at any election.
Sub-section 3 is as follows:
Every person who directly or indirectly, by himself or by any other person on his behalf, makes any gift, loan, offer, promise, procurement or agreement as aforesaid, to or for any person, in order to induce such person to procure, or endeavour to procure, the return of any person to serve in the House of Commons, or the vote of any voter at any election.
Section 96 is as follows:
And whereas doubts may aribe as to whether the hiring of teams and vehicles to convey voters to and from the polls, and the paying CA SIM of railway fares and other expenses of voters, be or be not according Henry, J. to law, it is declared and enacted that the hiring or promising to pay or paying for any horse, team, carriage, cab or other vehicle, by any candidate or by any person on his behalf, to convey any voter or voters to or from the poll, or to or from the neighborhood thereof, at any election, or the payment by any candidate, or by any person on his behalf, of the travelling and other expenses of any voter, in going to or returning from any election, are and shall be unlawful acts. For the purpose of showing the applicability of the provisions of sub-section (1) to the circumstances in evidence in this case, it may be briefly read thus:
Every person who directly or indirectly, by himself or any other person on his behalf, gives
* * * any money or valuable con- Eideration * * * in order to induce any voter to vote or refrain from voting, shall be guilty of bribery.
It will be observed, and it is in the decision of this case necessary and of the utmost importance to observe, that in that provision there is no reference to any condition as to the party to be voted for. It is simply a provision against the doing of either of two thingsfirst, the inducement to vote, and the other to refrain from voting.
As I read the prohibition, it matters not whether the party offering the illegal inducement knew or cared how the influenced party would vote. It need not be done corruptly. The mere giving an inducement is the offence.
The offence is consummated when a party is induced by any valuable consideration to vote, and the offer of the inducement is an offence, whether accepted or not. What, then, have we to try in this case ? The fact of the inducement which caused the parties to go and vote, and the question as to their having done so through the means of a valuable consideration.
I have already stated it as my opinion that we, under the evidence, should hold that the tickets in question were purchased at a reduced rate and paid, or to be paid for, by some one in the interest of the respondent. Those tickets are as follows:
Railway. Berthierville return.
Without some other evidence it might be alleged that although the tickets were issued in that form they were given by the ticket agent as free passes.
We have, however, one of the free passes over that railway in evidence, which goes to show that the tickets were purchased. The specimen in evidence of the free passes issued is as follows:
North Berthier ( issued-on Navig.
R the 9 g o
Davis, Any one looking at such a ticket would most irresistibly conclude it had been purchased, and there is nothing in the evidence to show that it was not. It is quite consistent with the statement of Lamarche that such tickets had been arranged about and paid for at the election in question, as well as at previous ones. Compare, also, the terms of the tickets and those of the free passes.
The first were transferable and entitled the travellers under them to seek compensation in case of a negligent accident. The latter were not transferable, and, therefore, only valuable to the party named in them, and the holder was prevented by its provisions from seeking compensation in case of an accident. tickets represented money, as they could have been sold by any one who held them, and the right to travel under one of them would pass to the purchaser.
If nothing was paid or to be paid for them,*we should expect to have seen that free passes would have been issued by J which liability would be limited.
My reason for drawing attention to this distinction will be more obvious when I hereafter refer to the judgment of Mellor, J., in the Bolton case when referring to a free pass. It is, however, contended that if the tickets were given by the ticket officer gratuitously to Lamarche, the latter not having paid anything for them, could legally make use of them in the way he is shewn to have done. They were undoubtedly of value to those to whom Lamarche gave them, in two ways: first, as a saleable article; and next, they enabled each holder to do without cost what he could only have done by paying a dollar and a-half. If in place of the tickets given by the ticket officer (as for this argument we may assume gratuitously), he or some one else had given Lamarche a sum of money, and that he had employed it in a way made corrupt by statute or Common Law, are we to consider how he got the money ? He was the acknowledged agent of the respondent, and the latter is as to this inquiry, answerable for his acts ; and, regardless how he got the tickets if they were of value, as they undoubtedly were, the offence consisted in the illegal disposition of them.
We may be properly told that a candidate or any of his agents might give a seat in his carriage to a voter and drive him to the poll, and I might not possibly decide that the voter had received a valuable consideration within the terms of the section in question, but that is not the case under consideration. The section forbids any one, by a valuable consideration, to induce a party to vote or refrain from voting.
I am decidedly of opinion that under the evidence we should assume the tickets in question were paid for, and by the use shown to have been made of them an offence committed against the provisions of section 66.
- If, however, our conclusion in that respect should Henry,J. be in the opposite direction, I still am of opinion that an offence was committed under sub-section 2 before cited.
In the leading case of Cooper v. Slade (1) decided by the House of Lords in 1858, the question turned upon the construction of section 2, ch. 102, of the Imperial
Act 17 and 18 Vic., and of a letter given in evidence.
That section is, in its provisions and language, identical with sub-section 2 before referred to, but the former has a proviso, not in sub-section 2, that it " shall not extend, or be construed to extend, to any money paid or to be paid for or on account of any legal expenses bond tide incurred at or during the election."
The letter was as follows:
next return
Nine out of the ten learned judges decided that the offer to pay the railway expenses of the voter was bribery under section 2 of the Imperial Act before cited.
The decision rested upon the promise contained in the letter. It was written by a party for whose acts the candidate was responsible, and although the decision turned on the construction of the letter as embodying only a conditiopal promise to pay the travelling expenses, I can find little or nothing in the language of the learned judges to show that if the promise had not been conditional the judgment would have been the other way.
Henry, J
Baron Channell said:
It is, in my opinion, unnecessary to decide whether prior to 17th and 18th Vie., ch. 102, the bond fide payment of travelling expenses was illegal.
Nor is it, in the view that I take of this case, necessary to decide, whether, since the act, a promise to pay travelling expenses is void within that statute, if unaccompanied by a condition that the person to be paid is to vote for the party promising to pay.
Baron Watson, referring to section 2 of the same Act, said :
It is not necessary that the voter should vote or even promise to vote, to constitute an act of bribery under that provision. It has been suggest that to bring a promise within the provision it must be a conditional promise to pay the travelling expenses if the elector vote for the promiser. It appears to me that it would be equally within the meaning of the act if the promise was unconditional, simply to pay money on the elector voting at all, inasmuch as the candidate may have a full reliance (perhaps erroneously) how the vote would be given, and that such promise would be an inducement to vote, whether conditional or unconditional.
Mr. Justice WightMnan was, however, of the opinion (and I must say, contrary to the plain meaning of the words used) that the promise must be to induce the persoVD to whom the promise is made, to vote for a particular candidate.
Coleridge, J., said:
This then was a promise of money in order to induce a voter to vote, and whether the payment of travelling expenses per se be legal or not, I am clearly of opinion that to promise to do so, in order to induce a voter to vote, is within the second section of the statute. No other of the judges remarked specifically on the difference between a conditional and unconditional promise. The 98th section of the Dominion Act before mentioned makes the offences created by sub-section 2 corrupt practices to avoid an election.
There is no such provision in the Imperial Act before referred to, and under which the decisionin Cooper v. Slade was given. I am, however, of the opinion that the decision of all the judges together in that case does not fully decide RihiC.J. the question before us, as it was unnecessary they should do so, but I adopt the views of Mr. Justice
Watson, before cited.
I am induced to believe that the Dominion Parliament in enacting the provisions of sub-sec. 2 intended to provide for cases then unprovided for. To promise a voter money or other valuable consideration, provided he voted for a particular candidate, would, if he so voted, be bribery at common law, and by previous statutes the promise alone would have been bribery, and if made by a candidate or his agent, would have been cause for avoiding the election. We must assume the legislature intended to go further in the direction of removing improper influences against the perfect freedom of the voters, either to vote or refrain from voting. The legislation was, as I think, intended to prevent cases such as the present one. The policy is evidenced by the statutory provisions against the hiring of conveyances and the paying of the travelling expenses of voters. What difference in principle can be found between the paying for an ordinary carriage and the providing of railway tickets? When, therefore, we find from the legislative declaration against the use of undue influence'ii one direction, the policy of the legislature in respect to freedom from such influences, we have the right and it is our duty to construe other provisions enacted by the same legislature in a way to give effect to that policy. The 2nd sub-section should then be read in the light of that policy. It says, in so many words, that the giving of a valuable consideration to induce a party to vote shall be considered bribery, and by section 98 the election wherein it is given is avoided. Surely if the legislature meant the provision only to apply to cases of conditional promises, we would find it so expressed. In the case of Cooper v. Slade the declaration did not charge the offence as a promise founded on any condition, but simply on Jthe charge of inducing the voter to vote at the election; and no objection was taken to the count on that ground. If the count had been open to that objection we have every reason to conclude that the learned Attorney- General and other eminent counsel for the defendant in that case would have raised it.
It is alleged, however, that the decision of Mr. Justice Mellor in the Bolton case before referred to (1) modifies to some extent the law as laid down in Cooper v. Slade, but I cannot find it to be so.
In that case it was proved that letters with a railway pass were sent by an agent of the respondent to a number of voters who lived at a distance from the borough.
The letter was as follows: The learned judge fully admitted the correctness the law as laid down in Cooper v. Slade, but undertook to distinguish the two cases. He had, however, to decide upon the gift of a railway pass which he pronounced of no intrinsic value. It was not a railway ticket but a pass, upon the production of which at the railway office the party would obtain a ticket. It might not in that case have amounted to a valuable considerasion, as it really was nothing more than an authority (1L2 & H.
to get what was valuable-a railway ticket. If the ticket was not issued the candidate was at no expense, and it appears to me that it was that consideration that induced the judgment in that case.
There was no H promise to pay anything as in the case of Cooper v. Slade.
After the decision in the latter case the Act 21 and 22
Vic, ch. 87 was passed, by which a candidate or his agent, "by him appointed in writing," might provide conveyance of any voter for the purpose of polling at an election.
By a subsequent statute the provision was limited to county elections. The learned judge referred to sections 2 and 28 of 17 and 18 Vic., the latter of which subjects a person who offends against either to a penalty only, but does not avoid an election. The learned judge referred also to section 36 of the Reform Act of 1867, which repeals the provision of the Act 21 and 22
Vic. ch. 87, as to boroughs, and decided that inasmuch as no legislative enactment provided for the avoidance of the seat, he declared the respondent duly elected.
The learned judge said:
the statute that
He then stated the fact, that a member of Parliament proposed an amendment to the bill that the providing for such conveyance shbuld be a corrupt practice within the meaning of the Corrupt Practices Act, but that that was negatived. He was, therefore, dealing with a matter totally different under statutory provisions from that now under consideration.
His decision was founded on two propositions-#rst, that the pass sent to the voter was of no absolute intrinsic value; and second, that had it been so, it was by law no cause for avoiding the election.
The case before us is essentially different on both points. I have shewn that the tickets were of intrinsic value, and section 68 supplies what the learned judge found absent in Jthe
English statutes.
Looking at the whole of the Dominion legislation respecting elections, we may safely conclude that freedom to exercise the elective franchise, unaffected by any improper influence, was intended.
There are influences which exert themselves that may or may not be legitimate, but which no legislation can prevent, but those that are prohibited should not be allowed to prevail.
As far as I have been able to discover the policy of the legislation, in this country at least, it is not to provide for the return of a member by a majority of the votes in an electoral district, who may by any means be induced to poll their votes, not by a majority made up by the votes of those who, but for improper inducements, would not have voted at all, not of those who go to the polls at the expense of some other person-a candidate or one of his friends -but by a majority of those who, uninfluenced by such means, and who, at their own cost, be it great or small, go to the polling places provided for the purpose, and declare their uninfluenced choice. That such is the true policy, will not be questioned, and as I construe the election statutes which prohibit the giving of any valuable consideration to induce a voter to go to the poll to vote, and which provide that doing so shall avoid an election, I consider that it would be in direct opposition to that policy if we decide, under the circumstances in uncontradicted proof here, that the respondent was duly elected. am, therefore, of the opinion that the appeal herein should be allowed, and the respondent declared to have been unduly elected, with costs.
J.:
I adhere to the opinion already expressed by me more than once, that in these election cases. upon the trial of the matters of facts raised in which so much depends upon the manner in which the witnesses give their evidence-their intelligence-and the degree of credibility to be attached to each, we, sitting in appeal from the judgment of a learned judge, who having had the advantage of seeing and hearing the witnesses give their evidence, has passed upon the matters of fact, should never overrule his finding, unless (a thing which, when the evidence is wholly oral-not contained in any written document-it is difficult to conceive to be possible) the evidence is of such a nature as to convey to our minds an irresistible conviction that the finding of the learned judge upon those mere matters of fact is clearly erroneous. It may be that in some cases, upon reading the evidence as taken down, and without the light thrown upon it by the demeanor of the witnesses, I might arrive at a different conclusion from that arrived at by the learned 'judge, but that would afford no justification for my overruling -upon mere matters of fact--his judgment formed under advantages, which, sitting in appeal, I have not, and cannot have; but when the appeal is, or in so far as it is, upon a point or points of law, it is a different matter. Then it becomes my duty to express my opinion upon the law involved in the points appealed, according to the best and utmost of my independent judgment.
The points involved in this appeal (all other charges* having been abandoned at the trial of the election petition) are comprised in four charges of specific acts bribery and corrupt practices, alleged to have been committed by duly authorized agents of the respondent, supplemented by a general charge that each and every of those fraudulent, illegal and corrupt practices specifically charged, were committed with the knowledge and actual consent of the respondent. The first of these charges, which is called the Lamarche case, in short J.substance, is to the effect that one Olivier Lamarche, a Jduly authorized agent of the respondent, with the knowledge and actual consent of the respondent, paid the travelling expenses and other expenses of a great number of electors of the electoral division of Berthier, to enable them to go to and return from the polling places, and among others, to nineteen named qualified electors of the electoral division of Berthier, by giving to each of the said persons a railway passenger ticket of the Quebec, Montreal, Ottawa 4p Occidental Railway, and other valuable consideration to pass them into the said electoral division to the polling places where each of the said persons had a right to vote, and that the said persons afterwards sold again the said railway passenger tickets, which they had so gratuitously received, and with a fraudulent, illegal and corrupt motive, and to induce them to vote for the said respondent, and from those sales have derived sums of money and other valuable consideration, which they have kept for their own exclusive use.
What is comprised in this charge, eliminating from it all superfluous and irrelevant matter, which the allegations of the re-sale of the railway tickets by the persons to whom they were given appears to me to be, is, I think, beyond doubt an offence charged as having been committed against the provisions of the 96th section of the Dominion Election Act of 1874, and the charge in substance is, that Lamarche being an agent of the respondent did, with respondent's knowledge and consent, pay the travelling expenses of the persons named in going to and returning from the place where the election was held, by giving to them respectively railway passenger tickets to convey them to and from O the polling places where they respectively had votes at the election, free of charge for such conveyance. The charge, however, was treated at the trial as comprising also an offence charged to have been committed against J. the provisions of the 92nd section of the Act, namely, as an act of bribery, and not merely an illegal act, as an act within the contemplation of the 96th section only is, and which by the 98th section is made what is called a corrupt practice as distinct from bribery. This construction is put upon the charge by force of the words in the sentence relating to the alleged re-sale of the railway tickets by the persons to whom they were given, wherein the railway tickets, (which the persons to whom they were given are alleged to have re-sold, and so not to have used at all for the purpose for which they are alleged to have been given), are described as having been received by them gratis and with a fraudulent, illegal and corrupt motive, and to induce them to vote for the respondent.
Now, charges of corruption of this nature should, as it appears to me, be stated in these election petitions with the same preciseness and certainty would be required in an indictment or in an action for penalties, in neither of which should a defendant be compelled to go to trial, or have a judgment pronounced against him upon a count containing two charges so distinct from each other, as an offence against the provisions of the 92nd section is from one against the provisions of the 96th section of the Act. The respondent has, however, raised no objection upon this head, but the charge has been treated at the trial of the election petition, and in the argument before us as a single one, but as one which it is competent for the petitioners to sustain as an offence against the provisions of one or other of the above sections in one or other of the alternative cases following, that is to say :-either, 1st, as an act of bribery committed by Lamarche, as the agent of the respondent, and with the actual knowledge and con- 8e t of the respondent; or 2nd, as an act of bribery committed by Lamarche in his character as agent for J the respondent, but without the latter's knowledge consent; or 3rd, as an illegal and corrupt practice, though not an act of bribery committed by Lamarche, as respondent's agent, with the actual knowledge and consent of the respondent; or 4th, as a like act committed by Lamarche, in his character of agent of the respondent, without the latter's knowledge or consent. A charge of such a many-faced and ambidextrous character, is well calculated, if permissible, to take a respondent at great disadvantage, but as no objection upon that head was taken on the respondent's behalf in the court below, I propose to treat the case as it was treated there. By the 96th section of the Dominion Election Act, it is enacted as follows :- [The learned judge then read the 96th section (1).] By the 98th section any wilful offence against this 96th section is declared to be a corrupt practice, and by the 101st any corrupt practice committed by any candidate, or by his agent, whether with or without the actual knowledge and consent of such candidate, shall avoid his election if he has been elected, and by the 102 section it is enacted, that if any candidate himself personally commit any corrupt practice, or if any person on his behalf, with his actual knowledge and consent do so, the candidate, besides having his election declared void if he has been elected, shall be incapable of being elected and of sitting in the House of Commons and of voting at any election of a member of the House and of holding any office in nomination of the Crown or of the Governor in Canada. The learned judge before whom the election petition was tried, has found, as matter of P.
11.]
fact, that there was no sufficient proof of hiring or promise to pay, or paying for any horse, team, as prohibited by the 96 section, or of the payment of travelling or other expenses of any voter in going to J. or returning from the election in question, nor of any unlawful act within the meaning of this section.
"On the contrary," he says in his judgment:
And he, therefore, found in favour of the respondent upon this charge, although he found,- as matter of fact, also, that Lamarche was an agent of the respondent at the election. This finding of the learned judge upon a mere matter of fact, I cannot, sitting in appeal, venture to pronounce to be erroneous without violating the rule, by which, as I have said, I consider myself to be bound in cases of mere matter of fact.
But, indeed, the finding of the learned judge is in strict accordance with the only evidence which was given upon the subjeot, which was that of Lamarche himself, who, if he is to be believed-and the learned judge has believed himnever paid or promised to pay for the tickets, but received them from the ticket agent by whom they were issued gratuitously, whethir upon his own authority or upon the authority of a superior officer does not appear, and as the charge is that it was Lamarche who, as the respondent's agent, and on his behalf, paid the travelling expenses of the voters in question, Lamarche's evidence, if true, disproves the charge.
The charge, as framed, is somewhat peculiar.
not merely that Lamarche, as respondent's agent and on his behalf, paid the travelling expenses of the voters in question in going to or returning from the election, but that he did so by giving to each of the voters named a railway ticket to convey him to the The giving of the railway ticket to the voters named is alleged as the mode by which Lamarche paid Jtheir travelling expenses, which tickets, as the charge alleges, the parties to whom they were given sold instead of using them for the purpose for which they were given.
As, however, the learned judge who tried the case has found, as matter of fact, that Lamarche neither paid nor promised to pay anything for the tickets, and that they were given to him by the company's agent gratis, the conclusion of the learned judge upon the charge is well founded in law-that no offence within the provisions of the 96th section was proved. It was contended by Mr. lMercier, in his able argument before us, although no such point is made in the appellant's factum, that as- the tickets upon their face purport to limit the time during which the tickets should be available, in consideration of the tickets having been issued at a reduced rate, a presumption is raised that the tickets were paid for by some one, which is not displaced by Lamarche's evidence. But the answer to this contention appears to me to be plain; that upon this charge the respondent is not concerned, whether the tickqts were or were not paid for, if they were not paid for, or promised to be paid for, by the respondent's agent, Lamarche, whose conduct alone is involved in this charge.
The respondent cannot be found guilty of corrupt practices committed by his agent Lamarche, nor can the election be avoided upon the suggestion of such a presumption.
The presumption might arise in an action to which the company was a party; if in such action a question should be raised whether, in point of fact the tickets, were or were not paid for by some one other than Lamarche, but against this, respondent or his agent Lamarche, who is charged with having paid for the tickets, the evidence of Lamarche, who swears that he did not pay for them but that they were issued to him gratis, if true, as the learned judge has found it to be, is conclusive.
The law, as at present existing, does not prevent railway companies, if they please, gratuitously giving tickets which will pass passengers on their railway, even though they be given to voters going to vote at an election. If it be thought expedient to abridge the powers of railway companies in this particular, it is for the legi'slature to interfere, but there is nothing to prevent companies issuing tickets gratis nor in the form which they use for tickets which are sold at a reduced rate, and, in the presence of the testimony, upon oath, of the person to whom these very tickets were issued, that they were issued gratis, the presumption that they were not issued gratis, but were, in fact, paid for, if any such presumption be raised by the form of the tickets, is removed.
The finding of the learned judge upon the above charge, treating it as containing the allegation of an offence committed against the provisions of the 96th section of the Act, disposes, as it appears to me, of the whole charge.
The learned judge, however, in his judgment, says as follows:
And after referring to the judgment of Mr. Justice Mellor, in the Bolton case (1), he says:
I am of opinion that the passes handed to these voters, unpaid for as - Lamarche swears on cross examination,and presented to the voters un- Gwynne, J* der the circumstances proved in this case, do not constitute the valuable consideration to them contemplated and prohibited by the statute, and that the passes in question are not such considerations within the meaning and intention of section 92 of the Act, and I find that the petitioners have failed to establish the said first charge of bribery and corrupt practices against the respondent or his agent. It is plain, to my mind, from this language of the learned judge, that he found, as matter of fact, upbn a point as to which the most that can be said is that there was contradictory evidence, which however, it was for him to estimate, in the light of the value set by him upon the evidence of the respective witnesses, who gave evidence upon the point, that Lamarche gave the tickets to the several voters, without imposing upon them any condition, express or implied, to vote for respondent, and without requiring from them any promise that they would so vote.
The question which, as the learned judge says, he had to decide was, whether a railroad pass given gratis and unconditionally. to a voter to go to vote, is within the 92nd section. manner in which he refers to the judgment of Mr. Justice Mellor in the Bolton case, which proceeded wholly upon the question whether the promise there relied upon was conditional or unconditional, confirms me in the view which I take of the judgment of the learned judge. He says:
Before seeing this authority, I felt inclined to say after much anxious consideration, that tickets, given as these in question were, were not valuable consideration in the sense of, or within the meaning of the Act; in my uncertainty upon this point, I need not say that I felt relief in finding authority so strong, and in the d rection of my own inclination.
I must therefore regard the judgment of the learned (1) 2 O'M. & H. pp. 147.8-9.
SUPREME COURT OF CANADA .
judge as finding that as matter of fact the tickets given by Lamarche were not given upon or subject to any condition, express or implied, that the voters to whom they were given should go and vote for the respon- Gwe. J. dent, and as adjudging as a point of law that the tickets having been unconditionally given, no offence against the provisions of the 92nd section was proved.
So regarding his judgment, the point which in my opinion we have now to decide is whether, assuming the matter of fact to be well found, the law as applied to that matter by the learned judge is correct ; for the reason already given I cannot undertake to pronounce the finding of the learned judge upon the matter of fact to be erroneous.
That the giving a railway ticket, whether purchased for money or obtained from a railway company gratis, by a candidate or any agent of his on his behalf, to enable a voter to go too and return from the polling place, and by the production of which to the train conductors he could go to and return from the polling place free of charge to himself, if it be given in order to induce the voter to whom it is given to vote for a particular candidate, is the giving of valuable consideration and bribery within the meaning of the 92nd section of the Dominion Act, I cannot entertain a doubt;
but the law as laid down by the House of Lords in
Cooper v. Slade and followed in the Bolton case establishes that to make a promise to pay the travelling expenses of a voter, bribery within the provisions of the
English Act 17 and 18 Vic., ch. 102, sec. 2, which are identical with the provisions of 92nd section of the
Dominion Act, the promise must be qualified by a condition express or implied that the voter to whom the promise is made should vote for a particular candidate.
The same principle, as it seems to me, must apply when instead of a promise to pay the travelling expenses of
(1) Jur. S.
(2) 0. M. & the voter, there is given to him a railway ticket for the express and bondfide purpose of relieving the voter from payment of any thing for his conveyance to and from the polling place, and which is of a nature that it can OwNynne, only be used by way of payment of travelling expenses as the railway tickets in this case were. The effect of Cooper v. Slade, as it appears to me, is, that in order to constitute the gift of these railway tickets, given for the mere purpose of passing the voters on the railway to and from their respective polling places, to be consideration given in order to induce the persons to whom they were given to vote, within the meaning of the 92nd section, the gift of the tickets must have been qualified by a condition express or implied that the voter should go and vote for a particular candidate.
The gift of a railway ticket by which a voter could pass on the railway free of charge to himself must be regarded in the same light and considered in the same manner as the promise to pay travelling expenses.
Assuming, therefore, that upon the appellants failing to prove such facts as would establish an offence against the 96th section of the Act, which the particular charge in question clearly alleges, it is competent for them to insist that the charge also sufficiently alleges an offence against the 92nd section, I am of opinion, that as the learned judge who tried the case has found, as matter of fact (as I understand his judgment as already explained), that the railway tickets given to the voters by Lamarche were clogged with no such nor any condition express or implied, the learned judge was quite right in concluding that no offence against the 92nd section had been established.
As to Col's case, the learned judge has found, as matter of fact, that Cotd was not proved to be an agent of the respondent, so as to affect the respondent with his acts. Upon this case it is sufficient to say that I do not see enough to justify me in reversing the judgment of the learned judge upon this pure question of fact. The learned judge was also of opinion ECION that assuming Cold to have been the respondent's agent, , J. the act alleged in the charge was not proved.
I have G not thought it necessary to enter upon this point, as I do not feel justified in reversing the judgment of the learned judge upon the point of agency.
The onus in these appeals is cast upon the appellants to satisfy me beyond all doubt that the finding of the learned judge upon the matters of fact is clearly erroneous, and this they have failed to do.
The third charge, which is called the H6nault-Maxwell case, in short substance, is, that during the election the respondent, through and by one Joseph HInault, his authorized agent, gave money to one Joseph Maxwell, a qualified elector, in order to induce him to vote in favor of the respondent.
This case is certainly one pregnant not merely with suspicion, but with the conviction that corrupt conduct was committed by one Daveluy, who, however, was not called as a witness, and who, as the respondent swore, was not directly or indirectly authorized by him to act in any way as his agent, and the question we have to decide is, whether the respondent is to be affected, and his election is to be avoided, by the conduct which appeared in evidence of H~iault, the person named in the charge as the person by whom the bribery therein .charged is alleged to have been committed.
This HInault was nominated by the respondent's committee to go to a place called St. Damien, on the Sunday before the election, for the sole purpose of speaking in favor of the respondent at the church door after mass, where Senator Guevremont was expected to speak, and, as it seems, did speak in favor of the opposing candidate.
At this time Inault had no other duty or agency whatever on behalf of the respondent entrusted to him. The learned judge premises his finding upon this charge -by stating what the evidence adduced before him upon Gwynne, J.
the point was.
He states the evidence of a witness named St. Cyr, thus:
On St. Cyr's way home from Montreal (to Berthier where he lived), on Saturday before the voting, George Daveluy, of Montreal, who is not otherwise shewn to have had anything to do with the election, gave him a sealed letter at Hochelaga to be forwarded to Maxwell, and on arriving at Mile End Station, Daveluy told him there was money in the letter and to pay attention to it.
On St. Cyr arriving at Berthier the same forenoon, meeting Lamarche in the street, he asked him who was going to St. Damien, and that Lamarche told him it was a person named Hdnault. He asked for Hdnault, and gave him the letter, telling him that "it is a letter which was given to me for Mr. Maxwell. I am told there is money in it."
Again, the learned judge says :
There is no proof of agency on the part of Daveluy, and none at all of the part of St. Ojr, sufficient to compromise the respondent or to affect the election.
And again:
As to Hdnault, this was his first visit to the division.
le was a stranger there for aught that appears.
And again:
He arrived in Berthier the Saturday evening, the eve of his going to speak. He knew none of the committee. The president or some other of the committee told him, " You will go to St. Gabriel and then to St. Damien. He was sent to St. Damien to speak after mass. He did so and left the money with Maxwell, as stated, but did not in any way canvass or ask his vote.
He returned to Berthier and represented the respondent at one of the polls on the next Tuesday under power of attorney to do so.
And again:
It is undoubtedly true that Hanault came to the division to speak, as he says, for the respondent. As a general agent or canvasser he would have been useless, as being a stranger. He knew nothing of the letter and money referred to until his arrival here (at Berthier). VOL. ll.] SUPREME COURT OF CANADA.
Henault letter.
And again:
dent at that at the at St. part And the learned judge upon this evidence concludes thus:
I that that Henault The letter handed to .H6nault to be conveyed by him and delivered to Maxwell contained the sum of $25, and the sole words following, " envoyez fort vous et vos gargons," but was signed by no one.
That the money so sent by Daveluy to Maxwell constituted such corruption as to avoid the respondent's election if Davely had been an agent of the respondent, cannot, I think, admit of doubt, even if the money had been sent, as the learned judge seemed disposed to think, and as Maxwell swore, to pay for services corruptly rendered by Maxwell to Mr. Robillard, whose agent Daveluy was during an election which had taken place two years previously for the Local Legislature. It is impossible to disconnect the words " envoyez fort vous et vos garpons," from the respondent's election or from the payment of the money, although sent in payment of services rendered at Mr. Robillard's election for the Local Legislature.
It may be that Daveluy, who was an agent of Mr. Robillard. as the candidate for the Local Legislature, of the party which respondent was candidate for the Dominion Parliament, was himself a partizan that party, although not an agent of the respondent, and that he had reason to know or suspect that the services of Maxwell and his boys would not be rendered for the respondent, if the old debt incurred by Maxwell, for like services rendered to Mr. Robillard, should not be paid, and that this was his motive for sending the money, but whatever his motive, the respondent could not be affected by his act, if he was not an agent of the respondent, and of his being such, as the learned judge has found, no evidence whatever was offered,and the charge against the respondent was rested wholly upon the contention that Hinault was guilty of bribery in delivering the letter with the money to Maxwell, and that the respondent is affected by this act of Hdnault.
The learned judge has found as matter of fact, that neither the respondent or his committee knew anything of the sending of the letter. The act of sending it must, upon the finding of the learned judge, and the evidence, to be taken to have been the act of Daveluy alone, who was not attempted to be proved to have been an agent of the respondent.
All persons made instrumental by Daveluy, in having the letter conveyed and delivered to Maxwell, must therefore be taken to have been Daveluy's agents.
When he delivered the letter to St. Cyr, asking him to have it forwarded to Maxwell, and when St. Cyr, finding that I1dnault was going to St. Damien, delivered it to him with directions to deliver it, he was acting in accordance with authority derived from Daveluy, from whom he had received the letter, and Hinault, by accepting the bailment, became the agent of, and his act in delivering it the act of, Daveluy.
The fact that lX.]
SUPREME OF
Hanault was going to St. Damien upon a special limited agency on behalf of the respondent, could not make his receipt of the letter, addressed and sent by Daveluy to addrssedand entCASE.
Maxwell, a receipt of it, in his, Hnault's, character of, and as, the agent of the respondent.
If Hinault, when he delivered the letter to Maxwell, was wholly ignorant of its contents, such a proposition could not be entertained for a moment; so to hold would be contrary to every principle of justice, but his having become aware of its contents in the manner explained by him, whether such knowledge was acquired wrongfully or accidentally, cannot make any difference in this respect;
for if upon receipt of the letter he became quoad it, the agent of Daveluy, for the purpose of conveying it and delivering it to Maxwell, he must have continued to be Daveluy's agent until that purpose should be fulfilled. His wrongful or accidental acquisition, before its delivery to Maxwell, of knowledge that Daveluy must have had a corrupt motive in sending it, could not constitute his act of delivering to Maxwell the letter which he had received upon a bailment so to deliver it, derived from Daveluy, to be an act done by Hinault in his character of special agent for the respondent, and by which, therefore, the respondent should be affected.
Quoad the letter, H6nault must continue to hold it until he should deliver it in pursuance of the bailment upon which he received it, in the same character as that in which he had received it, namely, as the agent
Daveluy.
Neither the Bewdley case nor any of the other cases relied upon by the learned counsel for the appellants support the proposition contended for by them, that the respondent can be affected by an act of HInault done by him in the character of agent of another person, and in pursuance of a bailment derived from that other with whom and whose conduct, as in this case, we must EIR hold the respondent was in no wise connected.
The fourth and last case is the Chalut case
As to this case there does not appear to me to have been any founda- Jtion whatever for the charge that the money given to Mr. Chalut was given to induce him to support the election of the respondent, and to vote for him within the sense and meaning of the statute. There cannot be entertained doubt that the money given to this gentleman, who was president of the respondents committee, and one of the -most zealous of his supporters, was given by way of remuneration for his travelling expenses to an outer part of the electoral division, and his services as a lawyer in organizing a canvass upon behalf of the respondent in such part of the division; a purpose in itself quite legal and proper. There is no pretence of anything illegal having been done by Mr. Chalut in pursuance of the commission intrusted to him; if there had been, the charge would have been presented in a different shape, but that it was given, as charged, for the purpose of corrupting Mr. Chalut there does not appear to be any foundation whatever, nor, therefore, any for calling in question the finding of the learned judge upon this charge.
I think that the appeal should be dismissed with costs.
Appeal dismissed with costs.
Statutes and regulations cited
-
Unresolved citations
- section 96
- section 98
- sections 92
- 96
- 98 of said Act
- section 71
- section 92
- sections 96
- 101
- Section 98
- Section 101
- section 100
- section 2
- section 73
- sections 1
- 3
- 98
- section 1
- section 3
- Section 96
- section (1)
- section 66
- section 2 of the Imperial Act
- sections 2
- 28
- section 36 of the Reform Act
- section 68