respondent and his personal payment of the sums directly and not through his election agent, although forbidden by the Act, are not expressly constituted as corrupt practices avoiding the election. The Lichfield Division Case, (1895) 5 O'M. & H. 34, and the Lancaster Division Case, (1896) Ib. 39, distinguished on the ground that the Imperial Statute under which they were decided expressly makes these things illegal practices and declares that an election shall be avoided for such practices.

(4) That the payment by a candidate of an agent's legitimate expenses while engaged in promoting his election is not a corrupt practice; and quare, whether payment for the services of such an agent would be so where not colorably made to secure the agent's

vote.

Costs awarded according to the findings.

In view of the wording of sub-section 4 of section 15 of 54 & 55 Vic., c. 20, the Court subsequently made an affirmative order allowing to the respective parties the witness fees and other actual, necessary and proper disbursements incurred in respect of the issues on which the findings had been in their favor respectively.

ARGUED 10th July, 1901.

DECIDED: 20th July, 1901.

PETITION Complaining of the undue election of a member of the House of Commons of Canada for the Electoral District of Lisgar. The petition alleged that both the respondent personally and his agents were guilty of corrupt practices in the election, and prayed that it might be determined that the respondent was not duly elected or returned and that the election was void; that it might be declared that the respondent was guilty of the several corrupt practices and acts charged; and that the respondent might be adjudged disqualified and incapable of being elected to or sitting in the House of Commons, or of voting at the election of a member of that House, and of holding any office in the nomination of the Crown or of the Governor General of Canada.

ers.

H. M. Howell, K. C., and J. D. Cameron for petition

J. S. Ewart, K. C., for respondent.

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Statement

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Judgment.

The judgment of the Court was delivered by

KILLAM, C. J.-It has been clearly proved that the folKILLAM, C.J. lowing persons were agents of the respondent in and about the election and were guilty of the corrupt practices which I shall mention: Frank Williams, hiring vehicles and horses to convey voters to and from the polls, paying the expenses of a voter in going to the election, and bribery in giving and promising consideration to voters in order to induce them to vote and in advancing money to persons with intent that it should be expended in corrupt practices in the election; James Brown, hiring horses and vehicles to convey voters to and from the polls; Charles H. Edwards, hiring horses and vehicles to convey voters to and from the polls; Jéhan De Froment, bribery in knowingly paying to a person money in discharge or repayment of money in part expended on corrupt practices at the election; Moise Landry, bribery in giving money and other considerations to voters in order to induce them to vote at the election and in advancing money to others. with intent that it should be expended in corrupt practices at the election, and in corruptly giving considerations to voters on account of their having voted at the election, also corrupt treating.

About the agency of Williams and De Froment there is no dispute, nor is there about the commission of most of the corrupt acts just mentioned. There seems to me no possible doubt of the agency of Landry, Brown and Edwards, or of any of the corrupt practices referred to.

Amédé Cléroux was guilty of several corrupt practices, and might, perhaps, be properly held to have been an agent of the respondent; but, as there is room for difference of opinion regarding his agency, I do not include him.

John J. Moncrieff was admittedly an agent of the respondent, and the evidence was sufficient to cast upon him, to say the least, strong suspicion of having been

guilty of corrupt practices. The main charges against

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him were of paying the travelling expenses of voters in Judgment. going to and returning from the election, and of paying KILLAM, C.J. money to Frank Williams and James Wesley Umphrey, with intent that it should be expended in corrupt practices or knowingly in repayment of money so expended.

Moncrieff is clearly shown to have furnished to both Williams and Umphrey railway tickets for the use of voters in travelling by rail to and from the polls.

The decision of the Supreme Court of Canada in the Berthier Election Case, 9 S. C. R. 102, is clear authority that the taking unconditionally and gratuitously of a voter to the poll by a railway company or an individual, or the giving to a voter of a free pass or free ticket by railway, boat or other conveyance, if unaccompanied by any condition or stipulation affecting the voter's action in reference to his vote, is not a corrupt practice.

The railway tickets furnished are shown to be in the form ordinarily used for travel on the railway for which they were issued. They bore on their face some evidence of having been issued for value. One condition printed upon them was as follows: "This ticket is not transferable, and, if presented by any person other than the original purchaser, will be taken up by the conductor and full fare charged."

Moncrieff swears, however, that they cost him nothing, though he did not know whether they were paid for or not, that he had been informed that free transportation would be issued over the lines of the Northern Pacific in Lisgar, and that he availed himself of this and got the tickets from the "Conservative headquarters."

Under these circumstances, I do not think that we can properly find that Moncrieff was personally guilty of paying the travelling expenses of the voters who used the tickets. There is no evidence of the manner in which, or the stipulations upon which, the tickets were distributed

1901. by Williams or Umphrey, and, certainly there is nothing Judgment. to show that Moncrieff authorized them to employ the KILLAM, C.J. tickets in any but a legitimate manner. I wish that I

could speak in the same way of the money paid out by Moncrieff. He paid considerable sums to both Williams and Umphrey, which they certainly intended to expend in corrupt practices or in repayment to themselves of moneys so expended. But to constitute a corrupt practice on the part of Moncrieff it was necessary to be shown that he paid the money with intent that it should be expended in corrupt practices or knowing that it was to be taken in repayment of moneys so expended. He denies on oath. the intent and knowledge and, while he has conducted himself in these matters in a way that casts grave suspicion upon him, I am not prepared to find him guilty of a corrupt act.

Umphrey also was an agent of the respondent, and I have little doubt that he was guilty of corrupt practices in the election; but on going over the evidence I do not find any specific act of corruption on his part so definitely proved that I would base a determination of the petition upon his acts or report him as guilty of corrupt practices.

By section 123 of The Dominion Elections Act, 63 & 64 Vic., c. 12, (D. 1900): "If it is found by the report of any court, judge or other tribunal for the trial of election petitions that any corrupt practice has been committed by a candidate at an election, or by his agent, whether with or without the actual knowledge and consent of such candidate, the election of such candidate, if he has been elected, shall be void."

But, by section 127, "If, on the trial of an election petition, the Court decides that a candidate at such election was guilty, by his agent or agents, of any offence that would render his election void, and the Court further finds

"(a.) that no corrupt practice was committed at such

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election by the candidate personally, and that the offences mentioned were committed contrary to the order and with- Judgment. out the sanction or connivance of such candidate; and

"(b.) that such candidate took all reasonable means for preventing the commission of corrupt practices at such elections; and

"(c.) that the offences mentioned were of a trivial, unimportant and limited character; and—

“(d.) that, in all other respects, so far as disclosed by the evidence, the election was free from any corrupt practice on the part of such candidate and of his agents;

"then the election of such candidate shall not, by reason of the offences mentioned, be void, nor shall the candidate be subject to any incapacity therefor."

It seems very clear, both from the frame of this enactment and upon the decisions, that, once the commission. by an agent of a corrupt practice is proved, the burden is thrown upon the respondent of showing from the evidence already given or by offering additional evidence that the case comes within this saving clause: The Muskoka and Parry Sound Case, 1 Ont. Elec. Cas. 231; The East Simcoe Case, Ib. 291; The North Waterloo Case, 2 Ont. Elec. Cas. 90; The East Elgin Case, Ib. 142.

Under the former law elections were frequently set aside for very trivial and unimportant offences committed by agents, and it was to avoid this that such a saving clause was introduced. There is still, however, the positive enactment by section 123 that the commission of any corrupt practice by an agent, even without the knowledge and consent of the candidate, annuls the election, and the effect of that provision can only be avoided by affirmative findings on the part of the Court under section 127.

In paragraph (d.) occurs the expression "so far as disclosed by the evidence," and under that the mere absence of evidence of other corrupt practices would be sufficient. Possibly, too, an affirmative finding that no corrupt prac

KILLAM, C.J.