Somerville v. Laflamme

Somerville v. Laflamme
Collection
Supreme Court Judgments
Date
1878-04-15
Report
(1878) 2 SCR 216
Judges
Richards, William Buell; Ritchie, William Johnstone; Strong, Samuel Henry; Taschereau, Jean-Thomas; Henry, William Alexander; Fournier, Télesphore
On appeal from
Quebec
Subjects
Evidence
Decision Content
Supreme Court of Canada
Somerville v. Laflamme, (1878) 2 SCR 216
Date: 1878-04-15
CONTROVERTED ELECTION OF THE COUNTY OF JACQUES CARTIER.
JAMES SOMERVILLE et al
Appellants;
And
HON. R. LAFLAMME
Respondent.
1878: Jan 21; 1878: Jan 22; 1878: April 15
PRESENT:—Sir William Buell Richards, Knt., C.J., and Ritchie, Strong, Tauchereau, Fournier and Henry, J.J.
ON APPEAL FROM THE SUPERIOR COURT OF LOWER CANADA FOR THE DISTRICT OF MONTREAL.
Admissibility of Respondents evidence (P. Q.)—Multiplicity of charges—Bribery and undue influence-—Agency——Dringing on Nomination and Polling days.
The petition was in the usual form, charging bribery and corruption on behalf of Respondent and of his agents; and treating by Respondent's agents on the nomination and polling days. In the bill of particulars, the petitioners formulated ninety-eight different charges, but, in appeal, they only insisted upon seventeen charges, seven of which attached personally to the Defendant, and ten to his agents. The Respondent was examined on his own behalf, and there were, in all, 280 witnesses heard.
The judgment of the Superior Court of the District of Montreal dismissing the petition on all the charges, was unanimously affirmed, except as to the charge of bribery and undue influence by one Robert, hereafter more particularly referred to; and it was
Held: 1st. That the evidence of a candidate on his own behalf in the Province of Quebec is admissible.
2nd. That when a multiplicity of charges of corrupt practices are brought against a candidate, or his agents, each charge should be treated as a separate charge, and, if proved by one witness only and rebutted by another, the united weight of their testimony, without accompanying or collateral circumstances to aid the Court in its appreciation of the contradictory statements cannot overcome the effect of the evidence in rebuttal, and that, in such a case, the candidate is entitled to the presumption of innocence to turn the scale in his favor.
3rd. That drinking on the nomination or polling day is not a corrupt practice sufficient to avoid an election, unless the drink is given by an agent on account of the voter having voted or being about to vote.
(39 Vic, ch. 9, sec. 94 D., compared with 17 & 18 Vic, ch. 102, ss. 4, 23 & 36 Imp.)
4th. That a candidate, charged by his opponent with having no influence, is not guilty of a corrupt practice, if, in a public speech, in reply to the attack, he states "that he had had influence to procure more appointments for the electors of the County than any member.''
The evidence on the Robert charge was to the following effect: Robert, long before the election was thought of, together with members of his family (the Pare family), exhibited a strong desire to obtain an employment for his brother-in-law the Edouard Honoré Ouellette. Robert, being a political supporter, a client and a personal friend of Mr. Laflamme, asked him on different occasions if he could procure his brother-in-law {Ouellette) a place. The first time he spoke to him with reference to it was about a year previous to the election but he did not say anything to him on that occasion about his father-in-law (Paré), Roberts evidence on this part of the case then goes on as follows: " Q. On what occasion did you speak to him (Mr. Laflamme) about it? A. It was when the question of an election arose that I spoke to him about it. Q. Last fall? A. Yes. Q. What was the date at which you spoke to him regarding the Pare family? A. I cannot positively say, but it was four or five weeks before there was question of the election It was then spoken of in the County and out of the County. Q. That was during the election? A. Yes. 0. At all events it was at the time the election was spoken of? A. Yes. 0. "What did you say to him regarding your brother-in-law and your father-in-law? A. I went to see Mr. Laflamme on different occasions, when I had some accounts to give him to collect and I said to him: It would greatly please the paré family if you could procure a place for my brother-in-law.' Q. Did you say to Mr. Laflamme in what way it would please the paré family? A. I said this to him: ' It might, perhaps, prevent them from voting at the coming election.' Q. When you told Mr. Laflamme that the Paré family could be useful to him by not voting what 15½ did Mr. Laflamme say? A. He simply told met that he would think of me, and that if a vacancy occurred, he would do his best for me "Mr. Laflamme, on the other hand states "He (Robert) had asked me, not during the election, but many months before, I believe, so far as my memory goes, a year before there was any talk of an election, to try and secure some office or occupation; with a slight remuneration, for his brother-in-law (Mr. Ouellette.) I told him that I would consider his claims; that he was one of my best supporters; and, if I saw any occasion where it would be possible for me to support his claim, I would do so. The thing remained in that way; and previous to the election particularly, there was never one word said or breathed on that subject between Mr. Robert and myself. I never asked him to use this promise, and never intended to do so it Was merely because he was a personal friend of mine and a man of respectability and importance that I promised to consider his claim, as I was justified as the Representative of the County in doing."
Evidence was given that Robert attended three or four meetings of Respondent's Committee, organized at Lochia the checked lists and reported his acts to some of the members of the Committee.
Before the election, Robert repeated to the Pare family what had taken place between him and Mr. Laflamme. At the time of the election Robert, while conversing with the Parés in the family circle, was informed by one of them " they would vote for Girouard (the defeated candidate), but that they would not make use of their influence." He then told them "Do as you please: they will use your votes as an objection to giving Mr. Ouellette a place.”This conversation was not reported by Robert to any member of the Respondent's Committee.
Held. 1. That the Respondent, having a perfectly legitimate motive in promising Robert to try and get an office for his brother-in-law—his desire to please a political friend and supporter was not guilty of a corrupt act in making such promise; and further, that the act of Robert, in relation to the votes of the Pare family, even if a corrupt one, was not committed with the knowledge and consent of the Respondent.
2. That whether Robert was Respondent's agent or not the conversations which took place between him and the Pare family do not sufficiently show a corrupt intent on his part to influence their vote and that he is not guilty of bribery or undue influence within the meaning of the Statute. [Richards, C.J., and Strong, J., dissent.] Per Richards. C. J. and Strong, J that there was sufficient evidence to declare Robert to be one of Respondent's agents. [Henry, J, dissents.]
APPEAL from the judgment of Mr. Justice Dorion, of the Superior Court for Lower Canada, district of Montreal, dismissing the election petition against the return of the Honorable R. Laflamme as the member elect representing the County of Jacques Cartier, in the House of Commons of the Dominion of Canada.
The election took place on the 28th November, 1876, and the petition against the return of the Respondent was fyled on the 8th day of January following; and on the 8th of July the judgment of the learned Judge in the Court below dismissing the petition was delivered.
The petition was in the usual form, charging bribery, corruption and undue influence on behalf of Respondent and of his agents.
In their bill of particulars and the additions which they made to them during the trial, the Petitioners brought ninety-eight special charges against the Respondent or his agents.
Evidence in support of these charges was given by one hundred and eighty witnesses on behalf of the Petitioners and over one hundred were heard on behalf of the Respondent. On the argument the Petitioners abandoned 77 of their accusations and insisted upon 21 charges, eight of which attached personally to the Defendant, and thirteen to his agents.
Before the Supreme Court the Appellants confined themselves to seventeen charges which are more fully set out in the judgment of the Chief Justice, and were known as:—1st. Paquin's case. Paquin was a ferryman and conductor of the mails between Isle Bizard and Ste. Genevieve, upon whom Respondent was alleged to have exercised undue influence in a conversation with reference to the mail 2nd. Foley's case—a day laborer employed by the Public Works Department on the Lachine Canal, whom the Respondent is accused of having sought to intimidate for having answered him "it is all right," when informed by Foley that he did not intend to work for or against him, or to vote for him; 3rd. Chaurettê's case —a charge of personal corruption against the Respondent for having had Chaurette appointed returning officer; 4th. Lafleur's case—a voter, who was advised by Respondent to vote if his name was still upon the votes s list, although actually possessing no other qualification to be a voter, accused of personating; 5th. The Ouellette case—the only charge on which the Court was not unanimous in affirming the finding of the Court below. In the bill of particulars the charge is in these words:—"Pending the said election at Lachine the said Placide Robert grocer of the same place, and agent of the Respondent, acting with his special knowledge and instruction promised a situation to Francois Paré and Alphonse Paré, both electors at Lachine, for the said Edouard Honoré Ouellette son-in-law of the said Francois Paré, and also to the latter personally, if the said Francois and Alponse Pare would refrain from voting at the said election, and if the said Edouard Honoré Ouellette would use his influence in favor of the Respondent; and that, in fact, the said Francois and Alphonse Pare refrained from voting at the said election. " 6th. Corrupt treating by Respondent and his agents, under which charge arose the question if treating by agents on the nomination or polling day is a corrupt practice when the drink has not been given on account of the voter having voted or being about to vote; 7th. Speeches by Respondent, 1st at Pointe Claire, 2nd at Ste. Genevieve, 3rd at Isle Bizard, 4th at Ste. Anne 5th at St. Laurent, and 6th at Lachine; 9th. Speeches by agents; 10th. Cases of Deschamps and Clement—charge of 1878 bribery and intimidation by one John O'Neil, collector of SOMERVILLE tolls of the Lachine Canal as agent of the Respondent; LAFLAMME. 11th. Hurtubise case. Justinien Belanger', as agent of Respondent, is accused by one Augustin Hurtubise, of having offered him the keeping of light nouses, if hé would be in favor of Respondent's party; 12th. Boudrias case—an alleged offer of money by one Latour at the lock in St, Anns 13th. Cooke's case—Cardinal, as Respondent's agent, is charged with bribery for an alleged offer to help Cooke in a contract he had with the Government; 14th Cousineau's case—Defendant's agents are charged with having promised to pay this person money and with having paid him money, given him goods and other effects, and offered him other advantages to induce him to vote or prevent him from voting; 15th. Gravel's case—Mr. Gohier, as Respondents agent, is charged with having corruptly given drink to one Jean Baptiste Gravel, to such an extent as to render him entirely insensible, with a view to prevent him from voting; 16th. Brunet's case—agents of Respondent charged with having taken electors from Montreal to Ste. Geneviève in their vehicle, and treated and paid money to induce them to vote for Respondent and lastly, 17th. The Ste. Geneviève quarry case. The charges of this case are as follows:" 1st. Conspiracy between Defendant's agents and Mr. Rodgers, proprietor and workers of the quarry, to threaten the quarrymen employed there with immediate dismissal if they voted against the Defendant, and to send to Pointe Claire on voting day those who persisted in voting against the Defendant; 2nd. Employment given to François Meloche in the quarry to influence his vote; 3rd. W. S. Hemming Antoine St. Denis and Edouard St. Jean, Defendant's agents, threatened to turn out from their work in the quarry the voters who worked under their control, with the object of aiding the Defendant's election; 4th. The same agents, on the eve of voting, tried to send to Pointe Claire those men who persisted in desiring to vote against the Defendant, or in not abstaining from it.
The material facts of the charges above set out fully appear hereafter in the judgment of the learned Chief Justice; and as the evidence given in support and against these charges is reviewed at length in the judgments of the Court a separate statement is unnecessary.
Mr. Dalton McCarthy Q.C., and Mr. C. P. Davidson Q. C., for the Appellants, argued that the Respondent’s evidence in his own behalf was inadmissible under the laws of the Province of Quebec, citing and commenting on 38 Vic., cap. 8, s. 56, Q.; 37 Vic., cap. 1, ss. 45, 49, D.; Art. 251, C. C. P.; Taylor on evidence ([1]); Gilbert sur Sirey ([2]); Soulanges, Shefford and Jacques Cartier election cases ([3]); and that treating by agents on the nomination or polling day is a corrupt act sufficient to avoid an election and referred to the Bodmin case ([4]) Car rickfergus case ([5]); The North Wentworth case ([6]); The North Grey case ([7]); The South Essex case ([8]); The Montreal West case ([9]); Mr. Justice Caron's opinion in the Portneuf case ([10]); and The Bonaventure case ([11]). They also contended upon the facts that the Respondent was guilty of corruption, undue influence and bribery through his agents, and cited the following authorities:—1st. With reference to Foley's case: Bradford case ([12]); Coventry case ([13]); Westbury case ([14]); Blackburn case ([15]); North Norfolk case ([16]); Galway case ([17]); Northallerton case ([18]).
2nd. Lafleur's case: The Coventry case ([19]); Oldham case ([20]); Gloucester case ([21]); Dominion Elections Act ([22]).
3rd. Ouellette's case: Sligo case ([23]); Blackburn case ([24]); Westbury case ([25]); Halton case ([26]).
4th. Ste. Geneviève Quarry case: Staleybridge case ([27]); Blackburn case ([28]); North Norfolk case ([29]); Cox & Grady ([30]); Parsons on Contracts ([31]); C. C. L. C. Art. 995; 1 Demolombe No. 158.
5th. Speeches by the Respondent and his agents Launceston case ([32]); Deakin v. Drink water ([33]) Simpson v. Yeend ([34]); Dublin case ([35]); Worcester case ([36]); Hertford case ([37]); Dover case ([38]); Reg. v. Gamble ([39]); Petersfield case ([40]).
6th. On the question of agency: Staleybridge case ([41]); Bewdley case ([42]); Blackburn case ([43]); Taunton case ([44]) Taunton case ([45]); Wakefield case ([46]); Durham case ([47]); Bolton case ([48]) Dublin case ([49]); Barnstaple case ([50]); Lichfield case ([51]); Cox & Grady ([52]).
7th. As to appeal on questions of fact: 38 Vic, ch. 11, ss. 48, 22; Symington v. Symington ([53]); The Glannibanta ([54]); Bigsby v. Dickson ([55]).
Mr. E. C. Monk contra; contended that all members of the House of Commons were to be tried by the same law; and that if the evidence of a Member was admissible in the Province of Ontario when his seat was contested, the evidence of a Member representing a County in the Province of Quebec was also admissible. He referred to and commented on The Dominion controverted Elections Act, 1874 ([56]); C. C. L. C. ([57]); C. C. P. L. C. ([58]).
The learned counsel then commented at length on the facts, and maintained that the judgment appealed from was based upon the most reliable appreciation of the evidence adduced, and that the numerous authorities cited by the Appellant's counsel were not applicable. The following, among many other statutory provisions and authorities were also cited and relied on:
1st. As to the Ste. Geneviève Quarry case—St. Denis' Agency: Windsor case ([59]); Londonderry case ([60]); Taunton case ([61]); Shrewsbury case ([62]); Staleybridge case ([63]); Bolton case ([64]); Westminster case ([65]); Wigan case ([66]).Intimidation must be continuing at time of election: Windsor case ([67]); Bushby's Election Manual ([68]).
2nd. Ouellette' s case: Sligro case ([69]).
3rd. Lafleur's case: Oldham case ([70]) Gloucester case ([71]);
Westminster case ([72]).
4th. As to treating by Respondent and his agents Leigh & LeMarchant Elec. Man. ([73]); Portneuf case ([74]); Dominion Election Act, 1874 Sec 94
5th. Speeches by the Respondent and his agents; Phillips on Evidence ([75]); Green leaf on Evidence ([76]); Taylor on Evidence ([77]); Launceston case ([78]); Museoka case ([79]).
6th. As to accumulation of charges and appeals upon questions of fact: Muskoka case ([80]); Gray v. Turnbull ([81]); Gray v. Turnbull ([82]).
Mr. Dalton McCarthy, Q. C., replied.
THE CHIEF JUSTICE:—
This is an appeal from the judgment of the Honorable Mr. Justice Dorion, of the Superior Court of the Province of Quebec, dismissing the petition of James Somerville and others complaining of the undue election and return of the Hon. Rodolphe Laflamme to the House of Commons of the Dominion of Canada for the electoral district of Jacques Cartier in the Province of Quebec. Before this Court the charges Were formulated under seventeen different heads; and, I have no doubt in bringing the case before us, the parties have endeavored as well as they could, to arrange and distribute the large mass of evidence in the best manner to facilitate the consideration of it by us. And, I think they are entitled to the further credit of eliminating and discarding a large mass of evidence given in the Court below, which has relieved this Court from plodding through lengthy depositions (made longer and less intelligible by being taken down in the form of question and answer) the contents of which when understood and mastered would have been entirely useless.
After the experience of nearly a quarter of a century in the judicial office, I may be permitted to say, that no cases have come before me which have caused the amount of labor care and perplexity that election cases have. No doubt one great cause of the difficulty to the Judge arises from the circumstances under which the witnesses give their evidence in these cases.
An election has been held, the passions and feelings of the electors of, perhaps, a large section of country have been excited to an extent which rarely prevails in this country, except during election contests. The supporters of either party have exerted their energies to the utmost for the success of their candidate, and the result is the return of a candidate as a member by a small majority. The friends of the unsuccessful candidate are at once impressed with the idea that they have been defeated by illegal and disreputable means, and they immediately endeavor to have the decision against them obtained by such means, reversed as speedily as possible. They file their petition, and then proceed before the election court to have the case tried. The heat and the excitement which prevailed in the electoral division is then transferred to the election court. The witnesses are too apt to shew by their conduct and their manner of giving evidence, that they are actuated by the same partizan feelings as witnesses that influenced them as voters and some of them act as if they thought they ought to support their party by their oaths as zealously as they did by their votes. The audience is often numerous and composed of partizans, whose feelings enter more or less into the legal contest as they did into the political one. All this adds much to the perplexity and difficulty of the Judge in evolving the truth from the testimony given by the excited witnesses. This difficulty is expressed in the language used by an election judge in Ontario, which I extract from a case now lying before me:
The difficulty which I have experienced in evolving truth from the greater part of this mass of evidence has been great beyond what can be conceived, arising from the fact that the manner in which many of the witnesses gave their evidence—who, from the intimate connections with the Respondent in his business relations, and in connection with the canvass on his behalf should reasonably be expected to be able to place matters in a clear light—has left an impression on my mind that their whole object was to suppress the truth ([83]).
But the Judge who tries the cause in the first instance has many advantages over those who are called upon to review his decision. He sees the witnesses hears their answers, sees whether they are prompt, natural, and given without feeling or prejudice, with an honest desire to tell the truth or whether they are studied evasive and reckless or intended to deceive As the case goes on the Judge is able to form a conclusion (oftentimes difficult to arrive at) which is more satisfactory to him than if he had been deprived of the opportunity of seeing or hearing the witnesses. Then again, if any misunderstanding arises as to what the witness has said, it can be put right at once. The object for which a witness is called, and the point to which his evidence is directed, is understood. If any doubt arises in the mind of the Judge as to what particular part of the case the testimony of the particular witness is to be directed, on application to the counsel that doubt can at once be solved. The views and opinions of the Judge in disposing of a case, who has these advantages in considering the evidence, are more likely to be correct than those of an Appellate Court who have not those advantages. I have endeavored to point out how profitable it is to have the living rather than the dead testimony as to which I shall presently give the language of the late Sir J. Coleridge. As I have already observed, these election cases impose great trouble and perplexity on the Judge, even under the most favorable circumstances. But when Courts are called upon, on appeal in these cases, to reverse the decisions of the Judge who tried the case on matters of fact, their labour and perplexities, are, as far as my experience goes, very much increased. After the testimony has been taken down, it may be submitted to the consideration of parties not engaged in the first trial, who may see points and discrepancies in the evidence not suggested at the trial l matters omitted, or rather not proven by evidence which were taken for granted and as to which if attention had been drawn to them, the difficulty could have been removed at once, these are brought forward, and the Appellate Court must consider them and also the conflicting evidence, without the advantage possessed by the Judge below. His views as to the proper decision arising from the effect of the whole of the evidence on his mind the manner of giving that evidence by the witnesses being an important element in leading his mind to the proper conclusion; and yet, perhaps, he could not say he believed one particular witness more than another and when the testimony is read, one witness would appear as much entitled to credence as the other. The difficulty of understanding and rightly appreciating a large mass of evidence, when it is only read, is thus referred to by the late Sir John T. Coleridge, in giving the judgment of the Judicial Committee of the Privy Council, in The Queen v. Bertrand ([84]).
Those of their Lordships who have been used. on motions for new trials, to hear the Judge's notes of evidence read, probably know well by experience how difficult it is to sustain the attention, or collect the value of particular parts, when that evidence is long; * * *But this is far from all. The most careful notes must often fail to convey the evidence fully in some of its most important elements, those for which the open oral examination of the witness in presence of prisoner, Judge and Jury, is so justly prized. It cannot give the look or manner of the witness, his hesitation, his doubts, his confidence or precipitancy, his calmness or consideration: nor could the Judge properly take on him to supply any of these defects. * * * It is, in short, or it may be, the dead body of the evidence, without its spirit which is supplied, when given openly and orally by the ear and eye of those who receive it.
In addition to this, when the evidence is taken down as it has been in this case, in the form of question and answer, it swells to an enormous bulk and the labour and perplexity of the Judge in understanding it is enormously increased. I think I can truly say that I have spent more time in endeavouring to master the details of the evidence in this case than in any that has ever come before me, and I have been compelled in doing so to transcribe nearly the whole of what is really the evidence that pertains to the case.
At the same time, as I have already intimated, it is but justice to the parties to say, that they have really endeavored to place the case before us relieved as much as they could relieve it, from a mass of matter which would have further increased our labours; and by the arrangement of the evidence under the different heads they have very much facilitated the reference to it as applicable to each particular case.
The first question for consideration is, whether the Respondent could, on the trial of the petition, give evidence for himself. As I understand the matter after the evidence in the cause was given the Respondent appeared before the Court on the second day of June and, being duly sworn, made the following declaration which is set out in the case as filed in this Court. After referring to many of the circumstances detailed in the evidence, and denying the statements made by some of the witnesses and explaining others, he concludes:
These are the only facts upon which I intend. to offer any explanations, but I am ready to answer any questions that may be put to me.
Respondent's own counsel put a question. It was objected to by petitioners, on the ground of Respondent not being examined as a witness, but merely tendering his own declaration The objection was over-ruled and the question answered. The Petitioners declined to put any question to Mr. Laflamme, he not being a witness in the case. The statement of his evidence then concludes as that of all the other witnesses; "And further deponent saith not."
Under sub. sec. 7 of the 3rd section of "The Dominion controverted Elections Act of 1874,° it is provided that subject to the provisions of that act, the Courts shall have the same powers, jurisdiction and authority, with reference to an election petition and the proceedings thereon, as if such petition were an ordinary cause within its jurisdiction. In any election case in the Superior Court of the Province of Quebec, I apprehend that the usual "practice in suits in that Court would be pursued, except when the provisions of the Controverted Elections Act may make a difference. In relation to S the examination of the parties to the suit in an ordinary case, they cannot, as I understand, in the Province of Quebec, offer themselves as witnesses; and if that practice is to be followed in election cases in that Province the Petitioners may properly urge that the evidence of the Respondent should be excluded.
No one at all familiar with these cases can doubt, that it is of the greatest importance that the Respondent should be able to give testimony on his own behalf on the trial of an election petition. Many circumstances during the progress of an election contest arise which can only be satisfactorily explained by the Respondent; and it is certainly desirable that his testimony should be heard as well on his own behalf as against himself. The history of the legislation on the subject is a brief one. The statute for trying election petitions before judges was passed in England in 1868. The Dominion Statute for the same purpose was passed in 1873, adapting the English Statute to the state of things existing in the Dominion. The Legislature of Ontario adapted the English Act to the circumstances of that Province, and passed their Statute in 1871, in February; and the general election for that Province was held in the month of March of the same year. A number of cases arose out of that election and were tried before the Judges of the Superior Courts of Law and Equity in Ontario. So that at the time of the passing of the Dominion Statutes in 1873 and 1874 the course of procedure in the trying of these petitions in England, and which was followed in Ontario must have been known to the framers of those statutes; and it seems to me that they intended that the same course should be followed here that prevailed in England, so far as could be consistently with the Act and the rules to be made under it. Now, the practice which prevailed in England at that time on these trials before the Judges was to hear the parties as witnesses; and the reading of the cases there decided shows how desirable it was that they should be witnesses. I think the reference in the Statutes to the manner in which these election petitions, touching the election of the members of the House of Commons, are dealt with in England, shows that it was intended the same course should be followed here. Under the 44th section of the Dominion Statute of 1874, power is given to the Courts to make general rules and orders for the effectual execution of the Act and the intention and object thereof, and the regulation of the practice and procedure and costs with respect to election petitions, and the certifying and reporting thereon. And the 45th section provides that until the rules have been made by the Judges of the several Courts in pursuance of the Act,
And as far as such rules do not extend the principles, practice and rules on which election petitions touching the election of members of the House of Commons in England) are at the time of the passing of this Act dealt with, shall be observed by the Courts and Judges thereof.
It will be observed that the authority to make rules refers to the regulation of the practice, procedure and costs. But the 45th section refers to the principles as well as the practice, and I think contemplates something beyond the new rules that were intended to be made.
There has been some discussion as to the effect of this word principles in the section of the English Statutes which refer to the decisions of election committees, but I cannot say that it throws much light on the subject we have now to consider. I think we will not be going beyond what the legislature had in view, by requiring the Courts to observe the practice and principles on which election petitions were dealt with in England, in holding that the parties to an election petition touching the election of a member of the House of Commons of the Dominion of Canada, can be witnesses on the trial of the petition and examined on their own behalf. I believe that practice has prevailed in the cases tried throughout the Dominion, and, as far as I understand the question, has never been raised, either in the Province of Quebec, or any other Province, until it was brought up in this case.
The Local Act, ([85]) for the trial of controverted elections in the Province of Quebec provides that the rules of evidence in the local election cases shall follow the English Law.
I do not think the provisions of the Dominion Statute, relative to preliminary examination of parties, and the production of documents, afford any argument against a party being called as a witness or examined on his own behalf. It merely enables a party to be examined before the trial and the information so obtained may induce the petitioner to abandon his petition or the facts elicited may be of such a character that the Respondent will be advised to abandon the seat. It is similar to proceedings which may be adopted in Chancery and under the Common Law Procedure Act, but these proceedings do not in any way interfere with the party so being examined becoming a witness on the trial. I therefore think we may consider the Respondent's declaration under oath properly receivable in this case.
The first case referred to in the factum is Paquin's case.
The evidence is to the effect that
Mr. Laflamme asked him (Paquin) what he intended to do about the election. He answered: "I cannot do anything for I have already had troubles about that."Whereupon Mr. Laflamme said," I have already been the means of establishing a post office at Isle Bizard, and you have been appointed mail carrier; if you do not sign for me, . do not sign against me." "He then asked me,"says Paquin, "if I was going to sign at all. I answered I was not, and that is all that was said."
Mr. Trepannier, a witness, said:
Mr. Laflamme asked him, Paquin, “ what are you going to do this year?" He answered: " I have already had troubles; I don't vote this year." Mr. Laflamme said, "if you do not vote for me, you will not hurt me by not voting at all. " Mr. Paquin said, " I will not vote at all." Mr. Laflamme said to him: i it was through me that you got the mail."
I do not consider these words, used by Respondent, were calculated or intended to intimidate; at most they seem to me to be addressed to the man to convince him he ought not to vote against him (Mr. Laflamme), because he, as representing the County, had got the mail established at that place, and that it was through him that he got the mail. I have seen no case going so far as to say that this is intimidation or undue influence. I, therefore think in this matter the decision of the learned Judge was corret.
Foley's case.
Foley's evidence is to the following effect: Michael Conway, the Superintendent of the Lachine Canal, came to his (Foley's) house in Lachine on Saturday afternoon, and informed him that he understood that a party had made a complaint in Mr. Laflamme's office about his (Foley's) working for the government, and not supporting the government candidate. Conway said he must come in and make it all right with Mr. Laflamme, or he would have to discharge him. Foley said he was not going to take any part in the election. He had always worked on the Conservative side He did not take any part in the election.
On reexamination, Foley repeated: He told me he heard I was going to be discharged, and that I had better go and see Mr. Laflamme. I said, I did not know where Mr. Laflamme's office was. He said he would meet me at the station, which he did on Monday morning, and we both went down to Laflamme's together, and he (Conway) introduced me to Mr. Laflamme.
Conway sat down and remained during the interview. He (Foley) said he went to Mr. Laflamme's office to tell Mr. Laflamme he need not thank him for coining there, as he was not going to vote for or against him. In reply to a question, he said:
I told him of course, that I was working for the government, and did not want to take any part in the election, and that I was not going to vote for him. I said if that would do, it would be all right, but if it was not they could do as they pleased about discharging me. He said that would do.
In answer to another question, he said:
I did not tell him how I was going to vote. I told him I was not going to vote for him; that I would not work on either side. I think he said it was all right if I did not work on either side, but remained quiet.
He thought Mr. Laflamme knew he was a Conservative and that he had voted against him at a former election
He added:
What Conway said to me was told as a friend.
Michael Conway said:
I heard it reported that Foley was going to take an active part against the Government candidate, and as he was employed under the Government, I thought it my duty, as a friend of Foley, and as a Superintendent of the Canal, to tell him, that as he was making his living there, I did not think it was wise for him to take an active part against Mr. Laflamme, and that if he took my advice he would vote for whom he 'pleased, and not take an active part in it at all. I make it a point to make my men attend to their business and not take active parts in elections. I made no objection to his working in the election whatever; I simply gave him my advice. It was rumored around he was going to take an active part in the election. I swear I did not advise him not to vote. The promise I got from Foley was, that he was going to see Mr. Laflamme and see what he was going to do. He suggested it himself, and I went with him to introduce him to Mr. Laflamme, and to show him that the man did not intend to interest himself in the election but attend to his work".
No person, to the knowledge of the witness Conway, made any complaint against Foley. It was rumored. He said:
I introduced him to Mr. Laflamme, and he told Mr. Laflamme he was employed by the Government, and that he heard he was going to lose his place. He told Mr. L, he did not intend to work for or against him; or to vote for him. I think Mr. Laflamme said he was perfectly satisfied.
In answer to a question, he said:
When I first saw him (Foley) I went to his house, and told him there was a great deal of noise about his going to take an active part in opposition to the Government candidate: and, as he was employed by the Government, I thought it would not be advisable for him to take an active part in the matter more than to vote for whom he pleased. Foley said: I will go and tell Mr. Laflamme that I am not going to work for or against him; or vote for him.
On cross-examination, he said:
I did not tell Foley that I heard he was going to be turned off. I told him, I heard it rumored he was going to take a very active part on the other side; and, he being employed by the Government, I told him as a friend, not to interfere, but to attend to his work, and vote for whom he pleased. It was not the purport of what I said to him that it was reported in the office that he was going to be discharged if he took any part in the election. I did not say so, nor did I mean it.
Foley states he voted at the election.
In relation to this case we must confine ourselves strictly to what took place in Mr. Laflamme's presence. If Foley had said to Mr. Laflamme, " Mr. Conway informs me a complaint has been made against me in your office about my working for the Government and not supporting the Government candidate, and that I must come and make it all right with you, or he will discharge me;" and had further said, " he did not want to take any active part in the election, but he was not going to vote for him; and, if that would do, it would be all right; but if it did not, they could do as they pleased about discharging him." If Mr. Laflamme had, after that, boldly said ' that would do," I think that would afford strong grounds for assuming that he knew and approved of the threat that Foley would be discharged if he exercised his franchise. I doubt if what he did say ought fairly to lead to the same conclusion. Mr. Laflamme might have thought this man had some idea that if he did not support the Government candidate he would be dismissed, and came to him to tell him what he intended to do, and to see what Mr. Laflamme would say to that. The answer " that would do, " I do not think necessarily implies if he did vote he would be dismissed.
Conway's account of what took place in Mr. Laflamme's office does not differ much from that of Foley.
If Mr. Laflamme had been made aware that direct threats had been made to discharge Foley, if he did not satisfy him, it would have been his duty to have informed Foley that he had not authorised any such threats to be made, and that he entirely disapproved of them. Whilst the law would not require him to tell an elector, situated as Foley was, to do all he could against him, it required that he should not approve of threats being used to deter the elector from the exercise of his franchise.
I think it would not have been out of place for him to have told Mr. Conway it was not his duty to bring the workmen on the canal to his office to explain what they intended to do, to see if that would be satisfactory. If, as a friend of Foley—the latter having been represented as an active partizan against Mr. Laflamme—he thought it was unseemly for him in the position he occupied to take an active part in. politics, and as his friend advised with him, not threatening him, not to make himself conspicuous; if, on such friendly advice, Foley had assured him he did not intend to take a part in politics, he might, as such friend, have assured Mir. Laflamme that the representation that Foley was active against him was untrue. But bringing Foley to Mr. Laflamme's office to answer, as it were, a charge against him, certainly looks as if it was intended he should be impressed by the interview. Conway denies having told Foley that, if ho did not make it all right with Mr. Laflamme, he would discharge him. If the case were to turn on what Conway told Foley, I would hesitate before giving credence to Conway's rather than Foley's account of it. Foley did go to Mr. Laflamme's office. Conway did accompany him, and he did explain to Mr. Laflamme that he did not intend to take any part in the election, and he did allude to the circumstance that his course as to the election might lead to his discharge, " to losing his place." The demeanor of the two men would, of course, assist in determining which of the two statements should be most relied on. Conway according to his account of the transaction, was a high toned public officer, who, whilst allowing every man to exercise his right of voting freely, thought it unseemly for persons in the employ of the government to take an active part in politics; and having heard that Foley was taking an active part against the government candidate, as his friend, went to advise him not to render himself obnoxious by such a course; and, as his friend, and at Foley's request, went with him to show him where Mr. Laflamme's office was, to enable him to explain to that gentleman the course he intended to pursue; and that he did not threaten to discharge him if he did not make it all right with Mr. Laflamme. I must confess, on reading the whole of the evidence given by Foley and Conway, that this view of the case did not seem to me the most correct one to take. I do not see, however, that I can, on the evidence, consider Conway Mr. Laflamme' s agent. It is true he was in favor of Mr. Laflamme, and probably brought some voters to the poll for him, and asked others if they were going to vote for him. I do not consider Conway bringing Foley to Mr. Laflamme's office so made him aware that Conway was acting for him, as to constitute him an agent for whose acts he was responsible.
I therefore, as to this charge, think we should decide in favor of Respondent.
Chaurette's case
In his evidence Chaurette says he met Mr. Laflamme at Pointe Claire on the nomination day, and he said to him:
I have heard that you would not put your name to propose me. I answered, it is true." He then said to me: “I have appointed you Deputy Returning Officer.
Further on he said, in answer to the question:
Did you tell him that you could not vote for him? Answer “You know that I have always been for you."
The next question was:
Was it upon that that he told you he had appointed you Deputy Returning Officer? Answer Mr. Laflamme and Mr. Anthem St. Denis coming on one side of the side walk and I on the other, on nomination day, in passing Mr. Laflamme stopped and told me " I have heard that you would not put your name to propose me," and I said to him: " Yes, I do not like my name to appear." Upon that he told me " I have appointed you Deputy Returning Officer," and I answered him, " that will be the way to keep me quiet;" because I was appointed Deputy Returning Officer, and being appointed as such I remained quiet, but I did not lose my right of voting. Nevertheless, one may get excited during elections and be glad to find friends.
On cross examination he stated:
Before the nomination day I did tell some of Mr. Laflamme's friends that I would vote for him but that I would not sign his nomination ticket. I did not like to come forward. Mr. Laflamme might have known before the nomination day that I was for him. 1 told him to leave me alone and that I would always be the same man, but that I would not work. My appointment as Returning Officer did not change my opinion.
It does not strike me that this evidence shows that Chaurette was bribed to support Mr. Laftamme by his being appointed Deputy Returning Officer. The difficulty has arisen from Mr. Laflamme saying he had appointed Chaurette Deputy Returning Officer. I should have thought it was the duty of the Returning Officer to appoint his deputies, under the 28th section of The Dominion Elections Act of 1874 and that it was a matter in which the candidates would not interfere The law casts the duty on the Returning Officer, and he ought to make the selection of proper, qualified persons without reference to the candidates. It is of great importance that these officers should be men who would not be influenced in the discharge of their duties by political feeling or prejudice; and if it is understood they are to be the nominees of a candidate, the public will not have the same confidence in them as if selected by the Returning Officer himself from those he consider qualified by intelligence and honesty to discharge the duties properly. It seems to me the Returning Officers ought to make their own selections of their deputies, and be held responsible for their selections.
Labeur’s case.
This voter, who is accused of personation, is an advocate and resides in Montreal. His father of the same name is a farmer and resides at Ste. Geneviève. In 1875, the son was the owner of property in the parish and voted at the election for the Local Parliament the father had property in the village of St Geneviève, and in the parish, and his name was on the two lists of voters. The son sold his property which was in the parish in the fall of 1875, and the question arose, whether, having sold his property, he could vote supposing his name to be on the list, and whether his name was really on the list, though the person whose name was mentioned on the list was described as a farmer, the voter being an advocate. It appeared from the evidence that the land which the younger Lafleur had owned was on Main Street, and that of the elder Lafleur was described " Property on the Main Street;" and the property formerly owned by the younger Lafleur would be described in the same manner, but the name would not be the same. I suppose this means the father would be " farmer." The property was sold to Mr. Gauthier. His name was not on the list. The Secretary-Treasurer of the Corporation, in reply to a question, said this property, which did belong to Mr. Lafleur, advocate, was not mentioned on the list. I think by this is meant unless coming within the description put opposite the elder Lafleur's name. One of the questions referred to was, whether the younger Lafleur's name, having been on the list for 1875, it could properly be removed without giving him notice. It is not contended that the young man pretended to be the father, but that he pretended to be the man whose name was on the list and he was not that man The man named on this list was either his father or himself; he, in fact, contended it was himself. If there had been a mistake in putting farmer as the matter of description of the person, then young Lafleur might honestly have supposed he had a right to vote; and if the name was not intended for him then the land he had owned was not assessed at all as I understand it. I do not think it appears in a manner at all satisfactory that these parties did not believe young Lafleur had a right to vote. He thought so himself, and swore in his vote; and I do not think under the head of personation the legislature intended to deter a man from voting who claimed the right to vote on his own behalf and believed he had that right. If this young man had never owned this property, had never had a right to vote, and merely, because the name of his father being the same as his own, would insist on voting, though he was an advocate and his father a farmer and the Lafteur named was described as farmer, then it might be said in one sense he had been guilty of personation; or if the property were assessed to the man to whom he had sold it, and the entries had been all properly made, and the description of the land could only apply to his father, there would then be more ground for imputing wilful fraud. But I do not feel warranted in deciding against the Respondent as to personal complicity in the matter, or that the election should be avoided on account of anything done by his alleged agents in respect of this vote.
As to treating on election and nomination days.
Section 94 of The Dominion Elections Act of 1874, 37 Vic, cap. 9, substantially re-enacts sections 4 and 23 of the Imperial Statute of 17 and 18 Vic, cap. 102. Section 4 is similar to the first paragraph of sec. 94 of the Dominion Act, and the last paragraph of that act is similar to sec 23 of the Imperial Statute. Tinder sec 36 of the Imperial Statute, corrupt treating avoided the election; and though under that act the candidate was not eligible for re-election for the same constituency during the existing parliament, and is still punishable in the same way for corrupt treating, yet he is not declared incapable of voting and holding certain civil offices, as he is by the subsequent act of the Imperial Parliament ([86]), for seven years when found guilty of bribery. But under, sec. 23 of the Imperial Statute of 1854, the persons giving refreshments to voters on polling days are only liable to the penalty of 40 shillings for each offence. Sec. 98 of the Dominion Statute declares any wilful offence against amongst others sec. 94 shall be a corrupt practice within the meaning of that act. Sec. 101 declares the election void when it is found on the trial of an election that any corrupt practice has been committed by any candidate or his agent at an election, and sec. 102 further punishes the candidate when such practices have been committed by or with the actual knowledge and consent of any candidate at such election The fact that a corrupt act has been committed must, of course, be proved at the trial of the election petition or of an indictment.
Mr. Justice Willes in the Bodmin case ([87]) refers to what he supposes was the reason of the 23rd section being introduced into the English Statute, when the 4th section referred to corrupt treating and punished it under the 36 section. The learned judge said :
It would seem to have been usual in former times, and no doubt was the practice, at least up to the year 1854, when the Corrupt Practices Act was passed, without any improper design upon the voters, and with a view to profusion, which some might dignify by the name of hospitality, to give every voter who came up pledged for a candidate at the election, or who voted for candidate, refreshment. either by opening a common table at some inn, where the voters breakfasted before they went to the poll or where they had refreshments before they left the town after polling, and before they returned to their homes.
The learned Judge then referred to Bodmin's case ([88]), where it was reported to the House that a system was pursued (which the learned Judge had no doubt was general) as soon as a voter had polled his vote of giving him a ticket for 5th. worth of refreshments. He then proceeds :
I cannot help thinking that that was the sort of corrupt practice with which whether corrupt or not the Legislature was dealing in the 23rd section of the Statute; and, also, I am inclined to believe, though I cannot precisely cite my warrant for believing it, that where a farmer, for instance, came from a distance to vote at a County election, it was not uncommon to have such an open table as that to which I have referred, not for the purpose of catching people's vote by the attraction of the meal, but simply, as it was then thought, reasonable, and was not uncommon. If to give a voter something to eat on the day of poling had been in itself treating, the 23rd section would have been unnecessary—the 4th section, dealing with corrupt eating, would have been sufficient to dispose of the case. Moreover, if it had been intended by the Legislature in making that sort of practice which prevailed here and elsewhere illegal, as no doubt it is now, by the 23rd section, to make it also amount to corrupt treating within the meaning of the 4th section, the Legislature would have so declared itself in the 23rd section.
This seems to me to explain the origin of the 23rd section of the English Statute, and the reason why it was passed. It is substantially re-enacted under the last paragraph of the 94th section of the Dominion Statute, and made a corrupt practice but to make it a corrupt act the meal, drink, or refreshment, must be given on the day of nomination, or on the polling day, and on account of the voter having voted, or being about to vote. This, perhaps, would make the illegal act a corrupt practice, though the refreshment was not given with a corrupt intent. The observations of Mr. Justice Willes shew clearly that it was not enacted for the purpose of preventing drinking on the nomination or polling days. The provisions in the Ontario Statute compelling the closing of taverns and shops where liquors are sold on election and nomination days and the furnishing and selling or giving away of liquors to any person within the municipality during the period mentioned, were evidently framed for a different purpose from the paragraph under discussion in the Dominion Statute.
The drinking on the nomination or polling day not being a corrupt practice, unless the drink was given on account of the voter having voted or being about to vote, and the evidence not shewing that the alleged drinking on those days was for any such reason, the question raised on that ground must be decided in favor of the Respondent. This view, I think, accords with the opinion expressed by Chief Justice Meredith in the Portneuf case ([89]), to which we were referred, and does not conflict with the decision of Mr. Justice Torrance in the case tried before him—as I understand, the drink given in that case was on account of the voters having voted or being about to vote.
Corrupt treating by Respondent and his agents,
I have gone over the evidence carefully as to the treating by Respondent, and I do not think there is any case made out against him.
The first case referred to is treating on the nomination day at Charlebois' tavern, Lachine. I have already expressed my opinion that the last paragraph of sec. 94 of the Statute refers only to furnishing refreshments to electors, on account of the electors being about to vote or having voted. There several electors being present treated each other in turn. There is nothing to show it was done on account of their being about to vote within the meaning of the Statute. It is not pretended that Respondent treated hut that the treat was with his consent and approbation. The law applicable to the North Wentworth case was different. I don't think it appears that the drinking was with his consent or approbation, and if he had attempted to interfere he might have been properly told it was a matter which did not concern him; that is, if these gentlemen chose to ask each other to drink because they are friends and neighbours, and it was considered as a mere act of courtesy, which seems to have been the case.
I fail to see that the Respondent drinking at Bellair’s on the evening of the 22nd (if he did drink, which is not shewn with positive certainty,) was corrupt treating. Mr. Rodgers, who was a contractor, choose to treat all round, as he says, and it does not appear that his doing so would in any way corrupt the electors as to voting, or that it was intended for that purpose. I should not infer from reading the evidence of what occurred on that occasion, that there was any corrupt intent on the part of Rodgers, who was particularly referred to, nor any thing to show that in accepting the treat Mr. Laflamme, if he did drink with the rest, corrupted anybody or intended so to do.
As to corrupt treating by persons alleged to be Respondents agents, though there appears to have been more or less drinking during the canvass and about the time of the election, much of it appears to be of the character which prevails through the country when a number of people meet for purposes other than elections, such as horse races, and other meetings where there is a good deal of talking and discussion going on, and in the interludes between conversations some man calls for liquor a short time after another does the same and if the number of persons assembled is not too great, the habit, I apprehend, is to ask all who are near to join in drinking. If there are a great many people present they are apt to form into small knots, and so join in drinking. I do not think drinking under such circumstances can be called corrupt treating. There was not during this election, as far as I can understand, that profuse expenditure for drink that used to prevail to the great injury of all concerned in it. From the perusal of the whole of the evidence I do not think there can be any pretence that what would be called general treating prevailed at the election or during the canvass, and certainly none to the extent which would justify the setting aside the election on that ground. The amounts charged by Belair, the hotel-keeper at Ste. Geneviève and Sauvé at Pointe Claire for board of parties acting on behalf of Mr. Laflamme, seems rather extravagant, and some money may have been spent there for drink during the election day. Mr. Doyon, whose expenses were paid by Respondent, and was one whose board he paid, speaks of treating, taking a couple of glasses of wine with whom he did not know on nomination day it may have been that he treated when Perry and Howard were at Ste. Geneviève and treated a few friends at Sauvé's on nomination day» He does say he never treated an elector during the whole time of the contest. He says he took some of the election money to pay those expenses (that is for treating). He, I assume, may have treated electors without knowing it. Without being quite satisfied with the explanations given by the witnesses as to this treating, particularly by persons who were strangers in the county and were there to act on behalf of Mr. Laflamme yet considering the custom of the county to which I have referred, I do not feel warranted in holding that the treating proved to have taken place was corrupt within the meaning of the Statute. Nevertheless it cannot be too seriously impressed on all those who may be in any way acting to further the election of a candidate, and who can properly be considered agents the absolute necessity of avoiding the furnishing of refreshments to electors during the contest, whatever may be their motive in doing so. When a course of conduct, which, in view of surrounding circumstances, may bear a favorable construction, but is considered open to serious objection, is followed after repeated warnings, Courts and Judges will feel less inclined to put the favorable construction on such conduct and will have less hesitation in deciding that parties who will persist in acting recklessly after repeated warnings intend to act illegally.
I do not, therefore, think the charge of corrupt treating by Respondent or by his agents is made out.
I understand the view I take as to corrupt treating is similar to that cited by Mr. Justice Patterson in the Lincoln election case, 'which has been so long pending in Ontario, and that I expressed in the Kingston case.
Speeches by Respondent:—
As to the speeches by Mr. Laflamme, I have gone over the evidence very carefully more than once, and am not prepared to say, taking it as a whole, that we would be warranted in setting aside the election, in consequence of what he said in addressing the electors on various occasions, after the finding of the learned Judge who tried the case
I have considered the powerful arguments of Mr. Justice Wilson in the Muskoka case and others that were addressed to us by Mr. McCarthy in the discussion of the matter before this Court and must say that speeches, pressing on the consideration of the electors that a particular candidate ought to be supported, because he has the power to distribute patronage and because as a Minister of the Crown he has the power of conferring material benefits upon a constituency, he ought, therefore, to be preferred and supported rather than a candidate not possessing such advantages are calculated to influence the electors in the choice of their members and in that way interfere with the freedom of election. At the same time the fact exists when the candidate before the people has that power; and to say that he has it can hardly be said to be more than recalling? to mind any other fact When done openly, can it be said to be done corruptly? Besides, it is one of the features of our representative system that as to some matters, those of a local character, a representative is bound to attend to the interests of his constituents; and, when he can do so consistently with his duty to the whole country his constituents may expect him, and, perhaps, demand of him to do so. I do not know that the candidate would be going much beyond the proper line, if he were to say that if occasion offered he would exercise his influence in favor of his constituents, whether in the bestowal of offices or in other matters in which they were interested. If in his speeches he were to limit his favors to those only who would support him, it might then be said he left the proper path and held out direct inducements to each to vote for him, and in that way was endeavoring to corrupt the constituency; and yet, promising to do what he could for his constituents in general terms, would, to most minds, imply quite as much as the more direct offer to give offices to those who helped him.
One difficulty in the case of speeches is, that you have not the exact words uttered by the candidate and each listener puts his own peculiar construction on the language used, and, when the lines of permissible speech and self-laudation and of corrupting appeals approach each other so nearly, it is not always safe to rely on the impressions parties have as to the effect of a speech.
I take it for granted, Mr. Laflamme might have said, without incurring legal censure. you ought to support me; I am a member of the Government a Minister of the Crown—and have more influence than my opponent. I can do more good for the county—more good for you —than the gentleman opposed to me. As your member, it is peculiarly my duty to look after your interests, and I will do so." Would not this language, in fact, have the same tendency to prevent the freedom of choice by the electors between the two candidates, as the more pointed and objectionable language referred to? I understand the matter is put in this way on behalf of Mr. Laflamme. He was charged with being a man without influence that he had failed as a member to take the position he ought to have taken, that he had done no good for the county, that all he had done was to get his friends a few offices. In reply to this attack, he said his opponents had charged him with doing no good to the county, with being without influence, and yet he had influence to procure more appointments for the electors of the county than any member who had preceded him, and if he had been able to do this for his constituents as a private member, as a minister of the crown he would be able to do more. Several of the witnesses on his behalf stated he in no way promised to give offices, that he was merely repelling the attack made on him, and shewing the people that as a minister he would possess more power to serve them than his opponent and more than he had as a private member. This is the view, as I understand, that the learned Judge takes of the effect of the evidence, and I cannot say he is not justified in doing so. If I entertained a stronger opinion than I do of the legal view to take of these election speeches, I should hesitate to declare the Respondent guilty of corrupt practices against the views of the Judge who tried the case as to the facts, and against the view the Court of Appeals in Ontario have expressed as to the law. I do not wish it to be understood from what I have said on this subject that candidates may, with impunity, make all kinds of appeals of a corrupting tendency to their constituents, and I think a careful perusal of the evidence will show that Mr, Laflamme, in taking the course he did, was, to use the words of one of his own witnesses, " traveling on delicate ground." As I have had occasion to say in most of the election cases which I have unfortunately been compelled to consider when corrupt practices were charged against a candidate, when there is a reasonable doubt if a party has brought himself within the clear terms of the law, you ought not, when the effect of the finding is so grave and serious, to decide against him.
I am not prepared to reverse the decision of the learned Judge as to the speeches made by Respondent. As to Speeches by Agents:—
After what I have said about the Respondent's speeches, I have but to say that the only speech by an agent which would call for further remark was that made by Mr. Duhamel at St. Anne to the effect that if they elected Mr. Laflamme he would have at his disposal as many places as they would want. They would be greatly in the wrong to prefer any other for he had already obtained places for some, and would be able to obtain some more. He also referred to the canal passing m front of the village, and said, if he was elected, he might fell them as a sure fact he would cause a few millions to be spent in deepening and widening it.
The speech of Mr. Duhamel was made in the presence of other gentlemen who had spoken, or who were about to make speeches the latter could, of course, reply to any statement he made, and if he said anything questionable or improper, could have replied to it. Putting improper motives before the people to influence them would naturally draw down censure and remark, and ought rather to injure than benefit the party on whose behalf they were put forward. Mr. Duhamel did not, as appears by the evidence, promise these places to any particular class of the inhabitants—say those who supported Mr. Laflamme. What he said was to the effect that if elected he (Mr. Laflamme) would be able to obtain more places for them, that is, for the people. As to the reference to the expenditure of money to improve and widen the canal, that was a matter which, of course could be responded to, as the improvements had been provided for before Mr. Laflanime's time__as one of the gentlemen who was present when this speech was made mentions in his evidence.
Though by no means free from doubt, I do not feel warranted in setting aside the election in consequence of the speeches made, either by Respondent or his agents.
The question how far a candidate and his friends may go in this kind of speaking is a very perplexing one and if it is found that great evils result from such speeches the legislature may interpose. Judges may also feel warranted, if it is found that these addresses of candidates and their agents go further in the objectionable direction, in declaring the same a violation of the law relating to the freedom of elections, though up to the present time they have not been able, satisfactorily, to come to such a conclusion.
There was little or no direct evidence that these speeches had a corrupt influence. One man speaks of being inclined to act from the corrupt motives placed before him, but, on further reflection, concluded not to do so Several of the witnesses mentioned that it was spoken of amongst the people that Respondent and his friends had promised offices; but it seemed as if this was done more to express disapproval of such conduct than to show they were influenced by it.
The enquiry before the learned Judge did not take the direction of showing the corrupt effect on individuals, but rather left it to be inferred that such must have been the case.
I do not feel that we would be warranted in finding such general corruption resulting from the speeches complained of as to set aside the election on that ground. The learned Judge in the Court below, when discussing the question as to speeches by Respondent, refers to the S Montmagny case, and shows, I think, satisfactorily, how that case differs from this as to the matter under discussion and concludes:
Here we have a serious conflict of testimony as to the effect of the expressions of which the Respondent made use, and we have his declaration upon oath, in which he says he only spoke about places in reply to the attacks made upon him by his adversaries, and in no way with a view to exercise any influence over the electors,
Clement and Deschamps cases.
The witness O'Neill collector of canal tolls, said :
My sympathies were with Mr. Laflamme, on account of being under a personal obligation to him for a year and a half before the election, of which fact Mr. Girouard was well aware for a year previous to the election. The only work I did on behalf of Mr. Laflamme, after the writ of election was issued, was to send a message to Deschamps that I wished to see him to ascertain if it was true that he had gone out to St. Laurent to propose a candidate to oppose Mr. Laflamme, after he had promised Mr. Laflamme that he would not work in the election.
I myself, after Mr. Geoffrion resigned, was satisfied Mr. Laflamme would succeed him, and I wrote a note to a friend in Lachine to ask Clement Deschamp s and Israel Clement to see me at my office in town when they came in. I had conversations with them a year and a half previous to the election with reference to Mr. Laflamme. My friends thought Mr. Laflamme was an enemy of mine, I was satisfied he was not, and I considered it my duty to tell my Lachine friends, of whom I have many, that Mr. Laflamme was not my enemy.
When Clement and Deschamps came into town (after the issuing of the writ of election) I asked them if they had made up their minds not to interfere against Mr. Laflamme, which I was satisfied they would not, from conversation I had with them previously, one of them a year before that, before Mr. Geoffrion got sick at all. They told me they would not interfere against Mr. Laflamme. I asked them to come and tell Mr. Laflamme so in his office. They came up and told Mr. Laflamme in my presence that they would not interfere against him. My object was that I knew they were politically opposed to him, and if they thought he was an enemy of mine, they would still be. I am satisfied my having told Clement and Deschamps that Mr. Laflamme was not an enemy of mineral tended to induce them not to oppose him. During the local election in 1875 I met Des champs, who said there was a vacancy in the canal office, at Lachine, in consequence of the death of a sub-collector; that he had applied for the position on behalf of his son. Mr. Laflamme had refused it to him, he said, for the reason that he had not been a political supporter of his. 1 did not promise then to get a situation for his son. I did get a situation for him eight years ago. Deschamps appeared to feel bad against Mr. Laflamme. I told him 1 would ask Mr. Laflamme why he did not give his son the position, and if he would call in a few days I would give the answer. He called afterwards. I told him Mr. Laflamme's reply was he could not give situations to opponents whilst his friends wanted them. I was anxious to know if they would carry out their promise not to oppose Mr. Laflamme, as they were influential men. I thought it would tend to let him in without opposition. At the same time Mr. Laflamme never asked me to support him in any manner or form. I did this voluntarily, in consequence of a favor he did me in 1875. In the conversation with Mr. Deschamps. when he told me he would not interfere in the election against Mr. Laflamme, I took the precaution to tell him I did not. wish him to have any misunderstanding relative to any conversation we might have had regarding his son Clement. He said it is not on account of any promise that we came here, " for you have not made any. I came here of my own accord; and if they ask me the reason I did not interfere in it, I will show an insulting letter, in my pocket, I received from one of the Local Ministers."
It strikes me that in May, 1875, or sometime in 1875, I told him there might be changes in the Department which would create a vacancy. I may have used language, when speaking to him in a friendly way, which would lead him to believe I would interest myself on behalf of his son, but not in the sense the question suggests— of making a direct promise to his son with reference to the situation. When at Mr. Laflamme office, I said, "this is Mr. Deschamps of Lachine." He said he knew Mr. D. very well. I said, " Mr. D. has come up with me, as I told him there was a possible election contest shortly in the county, and he did not intend to interfere in the election. Mr. Laflamme said he was thankful to him, and they got into a general conversation about a previous contested election.
I asked Mr. D. if his son Jean Baptiste intended to interfere in the election. He said Jean Baptiste could do as he pleased: he would. not interfere.
When I saw Israel Clement. I asked if he would come up and tell Mr. Laflamme he would not interfere against him. I asked him in presence of Mr. Laflamme if he would be for him, and he said he would not be against him. He told me afterwards he would be for him: this was between the time of Mr. Geoffrion's resignation and the issue of the writ for the new election. About a year before the election I sent word to Israel Clement to come in and I would try L and get a situation for his son Louis. I saw him some weeks after. He said he did not want Louis to get a situation, as he wanted him to help him at Lachine. He said he had a very bad memory, but he kept the books very correctly.
I would have done the same thing in relation to Clement, if there was no election for two years. I took Clement to Mr. Laflamme's office, introduced him to Mr. L. Something occurred pretty much the same as in Deschamps' case. He said he would not interfere against him, only Deschamps was more positive he would not interfere in the election. I have never since the election told Mr. Laflamme that Clement or Deschamps wanted situations for their sons. I told Mr. Laflamme, when I brought them, that I was satisfied these two gentleman would not oppose him, and I asked them to come up and tell him so. It was me that brought them up. Mr. L. never mentioned anybody's name to me. My object in having the personal interview was so that they would not interfere against him (Mr. L.) Question: To choke him? Answer: Unquestionably. These were the only two men whom I had canvassed for a year and a half. I spoke to my friends in Lachine as occasion presented itself, telling them that Mr. Laftamme was not an enemy of mine. What I did I did of my own free will, and not prompted by Mr. Laflamme, to let him know that I could treat him honorably as he had treated me.
Clement Deschamps said:
He voted at the last election but did not work. During the last local election was the official agent of Mr. Le Cavalier. Before the last election can't say how long there was no mention of election at the time. Mr. O'Neill sent me a message to call at his office in Montreal. The first time I went to the city. I did so. I think he said to me he had heard that I did not intend to work in the coming election Cannot swear positively I told him I would not work for one party or the other. He asked me to call at Mr. Laflamme's office. I said I had no business with him. He asked if I had any objection to go. I said not, and we went. He asked if my son was yet in the fur trade at Labrador. I think he asked me if I had applied for an appointment for my son. I answered him I had not. He asked if my son had applied himself I answered yes but he had not received an answer. I asked him if there were to be any changes in the government. He answered there was none, but if the Ministers thought proper to make changes in the spring, they might do so. Mr. O'Neill told me, in case there would be a situation for my son he would do his best as he had done in the past. This was said in the street in my carriage. We arrived at Mr. Laflammes's office. We waited there some time. Mr. Laflamme spoke for a time with Mr. O'Neill in my presence. He introduced me to Mr. Laflamme; said he had come to the office with me, knowing well I was not going to work during the contest. Mr. Laflamme asked me if it was certain I would not work neither for one side nor for the other. I answered him that I would not work. He asked me if I would vote. I said yes. I think Mr. O'Neill asked me if I would vote for the same party I always voted for, and I said yes. I don't remember that any mention was made at Mr. Laflamme's office of a situation for my son.
When it was decided that an election would take place, a meeting was called at St. Laurent. I went to that meeting of the Conservative party. A few days after that O'Neill sent me a telegram asking me to call at his office the next time I went to the city. I called at his office. He said he heard I was working that I had been at the St. Laurent meeting. I said I was not going to deprive myself from going to any meeting, nor any where I pleased, and that I was only not to work at the election. (Don't think Mr. O'Neill or anyone else would take the liberty of influencing me.) My son's name was not mentioned in the second conversation. Mr. O'Neill only wanted to find out if I was going to work in the contest.
I don't think this evidence sufficiently makes out a case of a corrupt offence, or intimidation or of agency on behalf of O'Neill.
The impropriety of O'Neill, holding an important situation in connection with the canals busying himself so far about election matters as to take electors to Mr. Laflamme's office has, in effect, been referred to when discussing the case of Foley. The fact that an active partizan at the recent local election had ceased to work, as the phrase is, was significant, and likely to cause grave suspicion; and, however imprudent it was on Mr. Laflamme's part to allow persons in the situation of O'Neill and Conway to bring parties to his office to be interrogated about election matters, I do not think what occurred sufficient to sustain a charge of an illegal practice, nor that there is sufficient evidence of agency if such charge had been sustained. Hutubise's case—As to getting appointed keeper of a light house. SO
I have gone over the evidence in this matter and see no reason to disturb the finding of the learned judge as to it. The evidence is conflicting and Belanger' s agency not sufficiently shown.
Boudrias' case:
The alleged offer of money by Latour at the lock in St. Anne is not stated by Boudrias himself t