Supreme Court of Canada
Magnan v. Dugas, (1883) 9 SCR 93
Date: 1884-01-16
CONTROVERTED ELECTION FOR THE ELECTORAL DISTRICT OF MONTCALM
IN THE PROVINCE OF QUEBEC.
ODILON MAGNAN, et al
Appellants;
And
FIRMAN DUGAS
Respondent.
1883: Nov 13;
1884: Jan 16
PRESENT—Sir W. J.
Ritchie, C. J., and Strong, Fournier, Henry and Gwynne, JJ.
ON APPEAL FROM MATHIEU, J., SITTING FOR THE TRIAL OF THE ABOVE NAMED ELECTION CASE.
Election petition—Bribery—Corrupt intent—Appeal on matters of
fact.
Among other charges of bribery and treating which were decided
on this appeal was the following:—One Mirceau, a blacksmith, who was a
neighbour of the respondent, had in his possession since two years, several
pieces of broken saws which the respondent had left with him for the purpose of
making scrapers out of them on shares. A few days prior to nomination the
respondent went into Mireau's shop with a scraper he wanted to be
sharpened, and in return for sharpening the scraper told him to keep the old
pieces of saw which he might still have. Mireau in his evidence answered
as follows:
Q. He did not speak of your vote? A. No.
Q. What has he said? A. He said that Mr. Magnan was
coming like mustard after dinner?
Q. M. Dugas did not ask you for whom you were? A. No
Q. Do you swear on the oath that you have taken that M. Dugs
left with you these two pieces of saw in question with the intention to buy
(bribe) you? A. I think so, I cannot say that
[Page 94]
it is sure I don't know his mind (son idée.) It
is all I can swear.
Q. It has not changed your opinion? A. No. Q. For whom were
you in the last election? A. For M. Magnan.
The scrapers were worth in all about two dollars, and were of
no use to the respondent, and no other conversation took place afterwards
between the parties. The judge who tried the case found that there was no
intention on the part of the respondent to corrupt Mireau.
Held,—That the Supreme Court on appeal will not reverse
on mere matters of fact the judgment of the judge who tries an election
petition unless the matter of the evidence is of such a nature as to convey an
irresistible conviction that the judgment is not only wrong, but is erroneous,
and that the evidence in support of the charge of bribing Mireau, as
well as of the other charges of bribery and treating, was not such as would
justify an Appellate Court to draw the inference that the respondent intended
to corrupt the voters.
APPEAL from the
judgment of Hon. Mr. Justice Mathieu, of the
Superior Court of the Province of Quebec, the judge trying the election
petition, under the Act of Canada, 37 Vic ch. 70 ().
The case upon which this appeal was decided was the personal
charge against the respondent of having bribed one Mireau. The facts of
this case as well as the facts of the other charges, appear in the report of
the case in the 12th volume of La Revue Légale ()
and in the judgments hereinafter given.
Mr. J. Bethune, Q. C, and Mr. Pagnuelo,
Q. C, for appellants:
In the Mireau case, the respondent allowed the evidence
to go uncontradicted, and his silence cannot but be taken as a confession of
guilt.
Borough of Eversham case ().
[Page 95]
As to the amount of the gift it matters
very little in the present circumstances.
Shrewsbury case () ;
Blackburn case ().
Bellechasse case in Superior Court (McCord) (),
and S. C. in Supreme Court ().
Mr. G. Irvine, Q. C., and C. Pelletier, Q. C for respondent.
The respondent was not bound to contradict evidence of this
description. There was no corrupt intent.
Windsor case (); Staleybridge
case (); Jacques
Carlier case (); Kingston
case ().
RITCHIE, C J:—
The only case which has given me any difficulty is the
personal charge in the case of Mireau, in which it is alleged defendant
bribed Mireau, by giving him a piece of an old broken saw.
The abandonment of the pieces of the saw to Mireau was not in connection with any conversation relative to
the election either before or at the time or subsequently, the only reference
to the election (but not in connection in any way with the saw,) was the casual
observation to Magnan, which he thus details:
Q. Il ne vous a pas parlé de votre vote ?
R. Non.
Q. Qu'est-ce qu'il a dit ? R. Il a dit que Monsieur
Magnan arrivait comme de la moutarde
aprés diner.
Q, Il ne vous a pas demandé, Monsieur Dugas, pour
qui vous étiez? R. Non.
Nor are there any circumstances beyond the simple abandonment
from which a corrupt intention can be inferred ; on the contrary Mireau would
seem to have been a man in very poor circumstances, the
[Page 96]
defendant much the reverse and having, it would seem from his
mills a great number of broken saws, which it may be readily supposed, from the
circumstance of the pieces left with Mireau having been allowed to
remain with him for two years without being called for or otherwise noticed,
they could not have been considered of much, if any, value to Dugas, if
not actually worthless. This conduct of defendant would seem to show that he
attached to them very little, if any, value, and considering that Mireau was
then performing a service for defendant in sharpening his scraper, though Mireau
thinks the service trifling and the pieces of the saw more than an adequate
payment, the defendant, having no use for the pieces, and having, as Mireau says,
a great number of pieces of broken saws, may have esteemed the remuneration equally
trifling ; at any rate, it is very clear, that before a party can be declared
guilty of a corrupt act entailing such serious consequences as would flow from
declaring defendant guilty, the intention to corrupt must be established beyond
a reasonable doubt. With reference to the trifling value of the article with
which it is alleged Mireau was bribed, I can only say that when an
intention to bribe is clearly established the extent or value of the bribe is
of no. importance, but in considering whether the intention to corrupt exists
the trifling character of the bribe may, in connection with other
circumstances, become most important to negative the corrupt intent.
I cannot think that simply leaving, with Mireau, in
return for sharpening his scraper without any reference being made to the
election, the small pieces of a broken saw of comparatively little or no value,
and which defendant had allowed to remain in Mireau's possession
for two years without having been in any way inquired
after or apparently esteemed of any value, is of itself,
[Page 97]
sufficient to justify the conclusion
that the defendant thereby necessarily intended corruptly to influence Mireau
in voting or abstaining from voting at the election.
Still less do I think the case so clear as
to justify me in over-ruling the decision of the judge who saw and heard the
witnesses who it cannot be denied was in a better position to deal with the
questions of fact than I now am.
It is true that in his evidence, Mireau, in
answer to this question:
Q. Jurez-vous sur le serment que vous avez
prêté, que M. Dugas vous a laissé ces deux bouts de scies en question
dans l'intention de vous acheter ? R. Je le pense. Je ne
puis pas dire que c'est certain. Je ne connais pas son idée. C'est tout ce que
je puis jurer.
Q. Ça n'a pas changé votre opinion ? R. Non.
The opinion of the voter has
nothing to do with the question. What we have to deal with is the intention of
defendant, and this we must discover not from the opinion of the voter, but
from the acts facts and circumstances developed by the evidence in the case or
the necessary inferences deducible there from; and even at most the impression
made on Mireau does not really amount to more than a suspicion; and if
only a suspicion was created in his mind, can I say the evidence is sufficient
to establish a conclusion beyond a reasonable doubt in my mind.
2nd case, Azarie Pauzé. Case
of an alleged bribing by an offer to buy a man.
I quite agree with the learned judge that there is nothing
whatever in this case to justify the conclusion that there was any infraction
whatever of the 92nd sec. of the Dominion Elections Act of 1874.
3rd case, as to the treating at Thouin's.
I have nothing to add to what the learned judge has said as to
this case.
[Page 98]
As to all the other cases the learned judge has very carefully
and minutely discussed them all, and as I agree in the conclusions at which he
has arrived I do not think it worth while to take up time by again going over
the same ground.
STRONG, J.:
At the conclusion of the argument in this case I was convinced
that the appeal was wholly unfounded. A subsequent careful consideration of the
evidence has convinced me that with the exception of Mireau's case the appeal is not only unfounded, but may be
characterized as frivolous. Mireau's was perhaps an arguable case, but when the facts are
considered, as already stated by the learned Chief Justice, the only proof upon
which the learned "judge of the court below was asked to draw the
inference that there was an intention to corrupt the voter was this, that a
piece of old saw, worth less than $2 which about two years before had been left
with Mireau by the respondent for the purpose of making hoes out of it,
was in his possession at the time he paid this visit whilst the canvass for the
election was going on, and the respondent told Mireau that he might keep
this. It was not handing him a present, or conferring any benefit on him, but
he abandoned to him this piece of old iron, for which he had no use whatever,
the respondent being in the saw mill business, and having a number of old saws
lying by him. This the learned judge found was without corrupt intent. To say
that a Court of Appeal should draw a different inference from that drawn by the
judge of first instance, who has seen the witnesses and had them examined
before him would be not only reversing all the principles on which this court,
acts in cases of appeals on questions of fact, but would be directly to
controvert the principle laid down
[Page 99]
by an eminent judge of high authority on questions of this
kind—I refer to the late Chief Justice of this court—whose thorough experience
in election cases, and his great practical knowledge of the law of elections
make his opinion of the utmost value, and who, in his judgment in the Kingston
case (),
lays it down as law that, wherever there is a doubt the benefit of that doubt
is to be given to the respondent. On that principle alone, in the present case,
it would be out of the question to say, that the judge has given a wrong
interpretation to this evidence, much less could we sitting in appeal and
reviewing the evidence, be asked to hold otherwise. I think, therefore, that
Mireau's case, which is really the
only substantial one which we could be asked to interfere upon, was properly
decided by the learned judge, Mr. Justice Mathieu, in
the court below, and, for the reasons which he gave there as well as for the
reasons given by the Chief Justice in the judgment which he has just read I
have come to the conclusion that we cannot disturb the judgment. I repeat, as
to all the other cases I consider them frivolous. The appeal should be
dismissed with costs.
FOURNIER, J.:
The evidence is not sufficient to authorize an appellate court
to reverse the judgment in favor of the member elected
HENRY, J.:
The animus, of course, with which anything is done in an
election by a candidate appealing to a voter is all important. The amount is of
secondary importance, but the amount of gratuity has, of course, a great deal
to do with determining the mind of the party who makes it. It is said that this
man Mireau was a poor
[Page 100]
man, and a couple of dollars to a poor man would be as important, or more so, than $20 to a wealthier individual. The
circumstances here are in a nut-shell. The sitting member was engaged in
canvassing in his election. He takes a hoe to this blacksmith to be sharpened.
The blacksmith says it wanted very little. While he was proceeding to do it, he
spoke of the election and made use of the term which has just been mentioned.
The subject was in his mind, at all events, and whether he was canvassing this
man or not, it was in the mind of the man who made the gratuity. After
sharpening this hoe which, he said, took very little time, for it wanted very
little, he said—" These saw plates which I gave you to manufacture on our
joint account you can have altogether. I will not exact what I required by our
agreement." That was really giving him up something that was alleged to be
worth some two or three dollars. I admit the principle laid down, not
originally by our late learned Chief Justice, but by a judge in England that
if you can ascribe two motives to a party, one legal and
the other illegal, we are not, at all events, bound to ascribe the illegal one,
and it would be quite sufficient to exculpate a party charged with bribery in
an election. If I were trying the case as the first judge, I should have had a
good deal of difficulty in deciding as to the animus of the candidate in that
election but the judge, who tried the case, and who was better acquainted with
the manner of dealing and the minds of the people than I can be, has given a
judgment. I do not consider that is a case which we should review. The judge
having given his decision, and being much better able to decide under the
circumstances, than I can be from his knowledge of the habits and mode of
dealing of the parties in question, I would defer to his judgment. I would be
totally unjustified, because of a doubt in my mind, in reversing his judgment.
[Page 101]
Under the circumstances, I think this appeal should be
dismissed with costs.
GWYNNE, J.:
The questions raised upon this appeal are all questions purely
of matters of fact. In the case of Cimon v. Perrault ()
I have stated my opinion to be that—
If there are any cases in which more than in others we should
inflexibly adhere to the rule that we should not, on appeal. reverse upon mere
matters of fact the judgment of the judge who tries the cause, having himself
heard all the evidence, unless the matter of the evidence is of such a nature
as to convey an irresistible conviction that the judgment is not only wrong but
is erroneous, they are these election cases in which so much depends upon the
manner in which the witnesses give their evidence and upon the degree of credit
to be attached to them respectively. A judge sitting in appeal, not having
before him the demeanor of the witnesses which the judge who tried the petition
had, assumes a grave responsibility, and indeed, as it seems to me, exceeds the
legitimate functions of an appellate tribunal when he pronounces the judgment
of the judge of first instance in such cases to be erroneous, upon anything
short of the most unhesitating conviction.
To this opinion, thus expressed, I still adhere. In the
present case, all the parties whose acts are called in question, and all the
witnesses who speak to those acts are French habitants of the Province of Quebec
and the judge himself of the same nationality as they. After a careful
perusal of the judgment of the learned judge who tried the case, and heard all
the witnesses give their evidence in his and their own language, and who
possessed a peculiar knowledge—a knowledge which I have not and cannot have—of
the habits and customs of the parties whose acts came in review before him in
this contestation I have no hesitation in saying, that if I should reverse his
judgment upon these questions of fact, my judgment would be deservedly open to
the imputation of presumption,
[Page 102]
In the principles of law by which three learned judge has, in
his very able judgment and review of the reported cases, stated that he was
governed in his consideration 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.
Appeal dismissed with
costs.
Solicitors for appellant: Pagnuelo & St. Jean.
Solicitors for Respondent: Pelletier & Martel.
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