Voter receiv

ing money,

or agreeing &c., to vote,

for money,

(5.) Every voter who shall, before or during any Munie, for vote, cipal election, or the voting of any such By-law, directly or indirectly, by himself or by any other person in his behalf, receive, agree or contract for any money, gift, loan or valuable consideration, office, place or employment, for himself or any other person, for voting or agreeing to vote, or refraining or agreeing to refrain from voting at any such election, or upon any such By-law; (n)

&c.

election, with intent that it shall be expended in bribery, it is illegal. If knowingly paid after the election in discharge of money expended in bribery, it is illegal. The word "knowingly," in this subsection, is used very much in the same sense as the word corruptly " is used in the latter part of subsection 1. It is by no means an uncommon practice for a candidate to pay a large sum of money into the hands of two or three persons, or into the hands of a banker, with permission to certain persons to draw upon such sum of money. This occurs most frequently at elections where it is considered expedient that the candidate should know as little as possible of the means used to procure his return. Were the money so paid in to be expended wholly or partly in bribery, would such a candidate be guilty of bribery within the statute? Such conduct would be very suspicious, to say the least of it. (See Clerk on Elections, 101; see also remarks of Richards, C. J., East Toronto Election Petition, 8 U. C. L. J. N. S. 119.)

(n) While the preceding sub-sections relate more especially to the candidates and to persons acting on their behalf, this sub-section applies only to voters. The deprivation of the right to vote, or the forfeiture of a vote already given, is not to be imposed as a penalty upon any one, unless under the express enactment of the Legislature. There are other persons interested and affected by the vote, beside the voter. The candidate for whom he voted is interested in it, and so are the whole body of the electors who voted for the same candidate. One vote has, and may again, influence or change the result of an election, and that is not to be brought about by merely inferential or argumentative legislation, or as to what the Legislature must have intended. There must be a plain enactment declaring that the vote shall be rejected if tendered, or shall be struck off if given, to justify the disallowance of it, and as a consequence to double the penalty on the voter, and so seriously to affect the rights, privileges and interests of others dependent on the vote. (Per Richards, C. J., In re Brockville Election, 32 U. C. Q. B. 139.) Either taking or giving a bribe invalidates a vote on a scrutiny. (Southampton Case, I O'M. & H. 224.) A man who votes for one candidate after having received money to vote for another is as much guilty of bribery as if he had done what was expected of him. (Lichfield Case, Ib. 29.) To take pay for a day's wages is bribery. (Staleybridge Case, Ib. 66; see also Taunton Case, Ib. 183.) So payment of a debt for which the voter was incarcerated. (Londonderry Case, 21 L. T. N. S. 709; s. c. 1 O'M. & H. 275; see further, Harding v. Stokes, 1 M. & W. 354; The Queen v. Thwaites, 1 E. & B. 704.) The question is not what is the motive operating on the mind of the voter. The mind of the voter has nothing to do with it. The question is the motive of

voting, or

(6.) Every person who shall, after any such election, or Receiving the voting upon any such By-law, directly or indirectly, by money, &c., himself or by any other person on his behalf, receive any election for money or valuable consideration on account of any person inducing. having voted, or refrained from voting, or having induced &c., to vote. any other person to vote or to refrain from voting at any such election, or upon any such By-law; (0)

(7.) Every person who shall hire any horses, teams, car- Hiring riages or other vehicles, for the purpose of conveying electors teams, &c. to and from the polls, and every person who shall receive pay for the use of any horses, teams, carriages, or other vehicles, for the purpose of conveying electors to and from any polls as aforesaid. (p) 35 V. c. 36, s. 1.

the person bribing. Probably there is no man who ever was bribed but would swear that the bribe had not influenced his vote. (The Westminster Case, 1 O'M. & H. 95; see also The Cashel Case, Ib. 289.) A conditional inducement of any kind to induce a voter to vote or refrain from voting is bribery. (See Simpson v. Yeend, L. R. 4 Q. B. 626.) Payment of travelling expenses to induce the voter to vote is bribery. (Dublin Case, 1 O'M. & H. 273.) It is not decided that payment afterwards, without a previous promise, is bribery. (1 Northallerton Case, Ib. 167.) Colourable employment of a voter is bribery. (Penryn Case, Ib. 128.) So lavish household expenditure if intended to influence votes. (Hastings Case, Ib. 218.) Admissions by a voter that he has been bribed are evidence to invalidate his vote on a scrutiny. (Windsor Case, Ib. 5; King's Lynn Case, Ib. 208.) Votes given for a candidate after an act of bribery has been committed by him, or on his behalf, are not null and void, but merely unavailable for the purpose of the election,-his status as a candidate being annihilated by the act of bribery. (Norwich Case, 19 L. T. N. S. 619.) The votes remain as good to be struck off by the party claiming the seat. (Ib.)

(0) The word corruptly, as used in the first sub-section, is not repeated here, but is involved in the language used. To receive, after an election, money or valuable consideration "on account of any person having voted or refrained from voting," &c., is to receive it corruptly. See note h to sub. 1 of this section.

(p) For a long time doubts existed as to whether the hiring of teams and vehicles to convey voters to and from the polls was legal or not. The doubts were removed in the case of Parliamentary elections for the Local Legislature by sec. 71 of 32 Vic. cap. 21. The subsection under consideration is in effect a transcript of that section. The subsection is in two parts. The first part affects the candidate and his agent; the second part affects the voters. To bring a case under the Act there must be a hiring on the part of the candidate or his agent, or receiving of pay for the use of horses, teams, carriages, or other vehicles for the purpose mentioned. M., a carter, who voted for respondent at the request of P., the respondent's agent, carried a voter five or six miles to the polling place, saying that he would do so without charge. Some days after

One

154. Every person who shall directly or indirectly, by himad or by any other person on his behalf, make use of or a toreaten to make use of any force, violence, or restraint, or ir flet, or threaten the infliction, by himself or by or through any other person, of any injury, damage or loss, or in any manner practise intimidation upon or against any person, in order to induce or compel such person to vote or refrain from voting, or on account of such person having voted or refrained from voting at any election, or who shall in any way prevent or otherwise interfere with the free exercise of the franchise of any voter, shall be deemed to be guilty of undue influence, and be subject to the penalty hereinafter mentioned. (q) 35 V. c. 36, s. 2.

the election P. gave M. 82, intending it as compensation for such Carriage, but M. thought it was in payment for work which he had done for P. as a carter. The candidate knew nothing of the matter. Hell, that there was not properly any payment by P. to M. for any purpose, the money having been given for one purpose and received for another. In re Brockville Election, 32 U. C. Q. B. 132.) But even if there had been such a payment, it was made after P.'s agency had ceased, and as there was no previous hiring or promise to pay to which it could relate, it was held not to come under the operate of the statute. (15.) If such payment had been established it would have avoided P.'s vote but not M.'s. (Ib.) See further, the remarks of Richards, C.J., as to the hiring of cabs, &c., in the West Toronto Case, not yet reported. A candidate is under no obligation, legal or moral, to pay for loss of time of voters or their travelling expenses. (Per Baron Watson in Cooper v. Slade, 6 H. L. C. 764.) The payment of a voter's expenses in going to the poll is illegal as such, even though the payment may not have been intended as a bribe. (South Grey Election, 8 U. C. L. J. N. S. 17.) If made on condition of his voting it is bribery. (Cooper v. Slade, 6 H. L. C. 754.)

(7) Intimidation may be either general or particular. The great object of the Legislature is to secure freedom of election. "In order to avoid an election on the ground of intimidation, it must be shown that the rioting or violence was instigated by the member or his agents, for whom he is responsible; or it must be shown it was to such an extent as to prevent the election being an entirely free election." (Staleybridge Case, 1 O'M. & H. 72.) The common law renders an election carried by violence, force or intimidation void, because the freedom of election is violated, and persons are prevented from freely exercising their franchise and giving their votes. (Cheltenham Case, Ib. 64.) If the intimidation be so general that the election cannot be said to be a free one, in that case, though it is not brought home to the candidate or his agents, the election would be void. (Stafford Case, Ib. 229.) General intimidation must be put on a parallel with general bribery or general treating; that is, it must be shown to spread over to such an extent of ground, and to permeate through the community to such an extent, that the tribunal considering the case is satisfied that freedom of election has ceased to exist in consequence. (Drogheda Case, Ib. 259.) With

155. The actual personal expenses of any candidate, his Expenses of expenses for actual professional services performed, and candidates. bona fide payments for the fair cost of printing and advertising, shall be held to be the expenses lawfully incurred, and the payment thereof shall not be a contravention of this Act. (r) 35 V. c. 36, s. 3.

respect to particular voters, the Legislature has used language which makes it undue influence to practise intimidation, directly or indirectly, with intent to influence the vote of a single voter. Whether the voter be the person illtreated, or whether the illtreatment be violence, or damage done by the removal of custom or business, or employment, is immaterial, if it is done with a view to affect the voter or interfere with the free exercise of the franchise, is is within the prohibition of the Act. (Blackburn Case, lb. 204.) The question whether a man made a free vote is something like the question whether a man made a free will. (Windsor Case, Ib. 6.) Threats of eviction by landlords (The Queen v. Barnwell, 5 W. R. 557). Threats to suspend or refuse the rites of the Church (Galway Case, 1 O'M. & H. 303; see also Longford Case, 2 O'M. & H. 16; Tipperary Case, Ib. 31), threats of dismissal from employment (Westbury Case, 1 O'M. & H. 50), discharge of servants (Blackburn Case, Ib. 203; North Norfolk Case, Ib. 241), or other wrongs or injuries of a similar character, if made in order to influence the vote, is undue influence. Where an injury has been actually inflicted the proof is comparatively easy, but where merely a threat has been made, and not executed, the point is often difficult to determine. (North Norfolk Case, Ib. 242.) If the threat be proved, the onus is upon those who made the threat or who are responsible for it, to show that intimidation did not produce its natural consequence, namely, terrifying the people from the exercise of their legitimate franchise. (Drogheda Case, Ib. 256.) A mere attempt to intimidate a voter, even though unsuccessful, would avoid an election. (Northallerton Case, Ib. 173.)

(r) The candidate is not restricted to purely personal expenses, but may (if there is no intent thereby to influence votes) hire rooms for committees and meetings, and employ men to distribute cards and placards, and perform similar services. (East Toronto Case, 8 U. C. L. J. N. S. 113.) A candidate in good faith intended that his election should be conducted in accordance both with the letter and spirit of the law, and himself paid no money except for printing. Money, however, was given by friends of the candidate to different persons for election purposes, who kept no accounts or vouchers of what they paid. The election, notwithstanding, was supported. (Ib.) In England candidates are required to pay money for election purposes through an authorized agent, and to render detailed accounts of the expenditure. (26 & 27 Vic. cap. 29, ss. 2, 3, 4.) Similar provisions now exist here as to Parliamentary elections. (See 36 Vic. cap. 2, 6s. 8, 9, 10, 11, 12, Ont.) It is always more satisfactory, on an election inquiry to have the expenditure shown by proper vouchers. (See remarks of Chief Justice Richards on The East Toronto Case, 8 U. C. L. J. N. S. 119, and The West Toronto Case, not yet reported). Where all the accounts and records of an election are intentionally destroyed by the respondent's agent, even if the case be stripped of

Persons

using violence or

to be guilty of undue influence.

154. Every person who shall directly or indirectly, by himself or by any other person on his behalf, make use of or intimidation threaten to make use of any force, violence, or restraint, or inflict, or threaten the infliction, by himself or by or through any other person, of any injury, damage or loss, or in any manner practise intimidation upon or against any person, in order to induce or compel such person to vote or refrain from voting, or on account of such person having voted or refrained from voting at any election, or who shall in any way prevent or otherwise interfere with the free exercise of the franchise of any voter, shall be deemed to be guilty of undue influence, and be subject to the penalty hereinafter mentioned. (2) 35 V. c. 36, s. 2.

the election P. gave M. $2, intending it as compensation for such carriage, but M. thought it was in payment for work which he had done for P. as a carter. The candidate knew nothing of the matter. Held, that there was not properly any payment by P. to M. for any purpose, the money having been given for one purpose and received for another. (In re Brockville Election, 32 U. C. Q. B. 132.) But even if there had been such a payment, it was made after P.'s agency had ceased, and as there was no previous hiring or promise to pay to which it could relate, it was held not to come under the operate of the statute. (Ib.) If such payment had been established it would have avoided P.'s vote but not M.'s. (Ib.) See further, the remarks of Richards, C.J., as to the hiring of cabs, &c., in the West Toronto Case, not yet reported. A candidate is under no obligation, legal or moral, to pay for loss of time of voters or their travelling expenses. (Per Baron Watson in Cooper v. Slade, 6 H. L. C. 764.) The payment of a voter's expenses in going to the poll is illegal as such, even though the payment may not have been intended as a bribe. (South Grey Election, 8 U. C. L. J. N. S. 17.) If made on condition of his voting it is bribery. (Cooper v. Slade, 6 H. L. C. 754.)

(7) Intimidation may be either general or particular. The great object of the Legislature is to secure freedom of election. "In order to avoid an election on the ground of intimidation, it must be shown that the rioting or violence was instigated by the member or his agents, for whom he is responsible; or it must be shown it was to such an extent as to prevent the election being an entirely free election." (Staleybridge Case, O'M. & H. 72.) The common law renders an election carried by violence, force or intimidation void, because the freedom of election is violated, and persons are prevented from freely exercising their franchise and giving their votes. (Cheltenham Case, Ib. 64.) If the intimidation be so general that the election cannot be said to be a free one, in that case, though it is not brought home to the candidate or his agents, the election would be void. (Stafford Case, Ib. 229.) General intimidation must be put on a parallel with general bribery or general treating; that is, it must be shown to spread over to such an extent of ground, and to permeate through the community to such an extent, that the tribunal considering the case is satisfied that freedom of election has ceased to exist in consequence. (Drogheda Case, Ib. 259.) With