1878 SOMERVILLE V. LAFLAMME. probably by Mr. Prevost; that Mr. Robert was one of the members of that committee from its organization, attended its meetings, assisted as much as he could as a committee man; list of voters were there made out for canvassers, or, as he says, for men who called on the electors and solicited for their vote. Mr. Robert was not a mere clerk there, he was a member of the committee. Mr. Laflamme speaks of him as being one of his best supporters. He (Robert) speaks of making reports to Gariepy, who was especially a friend of Mr. Laflamme, and who it was understood (between him and Mr. Laflamme) was to work for him; to Mr. Cardinal, no doubt equally in his interest with his knowledge, as Mr. Laflamme had given him a letter to Mr. Cooke; and Mr. Wilfred Prevost, who, I assume, was the organizer of the committee; and that Robert met him at the committee. It seems to me, that Mr. Robert was an active, energetic and trusted supporter of Mr. Laflamme; and if the Central Committee could give him authority to act, as I think they could, he must surely have had authority. Mr. Leopold Laflamme says Robert took a part in the contest in the interest of Respondent, who could not well help knowing it; that he was certain he was a devoted partizan of his brother. I shall refer to a few of the election cases decided in England, as shewing the general grounds on which the question of agency is discussed, and the conclusion which is arrived at; that no certain rule can be laid down as to what constitutes agency, and that the uncertainty arises from the different conclusions that may be drawn from the evidence when it is presented to different minds. The common sense of the Judge, so frequently referred to by Lord Blackburn, not being regulated by a fixed standard, does not conduce to uniformity of decision. The views of the Judges, in some v. of the decided cases, as to the sufficiency of the evidence 1878 to establish agency, would justify a difference of opinion SOMERVILLE on the question whether the Petitioners have proved LAFLAMME. enough to establish Robert's agency in this case. To some minds, the facts necessary for that purpose may appear not to have been sufficiently brought out on the trial. I think differently, and that the weight of authority and of reason sustains my view. As a Judge, I have no doubt if the matter were triable before a jury, that there is evidence as to Robert's agency, which it would be necessary to submit to the jury. Then, sitting in place of a jury, I must say the evidence to which I have referred satisfies me beyond a reasonable doubt that Robert was Mr. Laflamme's agent; and that the latter knew-or must, under the circumstances of this case, be presumed to have known-that he was acting in that capacity for him and on his behalf. In referring to election matters, I think it may be stated as an axiom, that the law of bribery, and in relation to corrupt practices, is not framed so much with the object of punishing the briber as to secure purity of election. The question as to agency in election matters was a good deal discussed in the case of Duffy v. Ryan, in the Supreme Court of New Brunswick (1); and my brother Ritchie, in giving the judgment of the Court in that case, refers to many of the cases where the question of agency arose. In the following extracts, which I have made from the decided cases, I have had more thought of the general principles laid down than of particular circumstances of each case, as it is so manifest that as to this matter of agency each case must, as already intimated, be decided on its own peculiar circumstances. In the Norwich case (2), heard before Martin, Baron, (1) 3 Pugsley 110. (2) 1 O. & H. 10. v. LAFLAMME. 1878 this doctrine was laid down, which I think is now firmly SOMERVILLA established, that the law of agency which would vitiate an election, is utterly different from that which would subject a candidate to a penalty or indictment; and the question of his right to sit in Parliament has to be settled upon an entirely different principle. The relation is more on the principle of master and servant than of principal and agent. In the Hereford case (1) Lord Blackburn uses this language: It would not be possible to unseat a person for corrupt practices, if he were permitted, by the means of persons who acted for him, or who brought him forward, either one or the other, to obtain the benefit of their aid, if he were not to be also responsible to the extent of losing his seat for the corrupt practices that were done by them for his benefit. That is one of the great reasons for which, as a matter of public policy, it was thought necessary in order to correct corrupt practices to establish that principle. I apprehend that, in a case where corrupt practices are shewn which the candidates themselves are not cognizant of, you must bear these two principal reasons in mind; and then, exercising what may be called common sense, you must see does the particular corrupt act come within the rule as an act done by an agent. If it does not, then though the person may have been canvassing the town or speaking on one side or the other; still we could not say the candidate should be unseated on that account. Every bit of canvassing and acting for a candidate is evidence to show agency, but the result cannot depend upon any present rule that I could define. It comes to be a question of degree, of more or less, and of common sense. It happens that from the nature of things, when you come to a question of degree, of more or less and of common sense, and leave it in that way to a jury, if there were a jury, the jury would determine it sometimes in one way and sometimes in another. Unfortunately, when judges are obliged to be judges of that ques. tion of degree and common sense, there is this unavoidable uncertainty, because it is quite clear that the common sense of one judge will differ from the common sense of another. To use the old simile that was used by Mr. Selden many years ago, and which is none the worse for being old, the standard of common sense would be as (1) 1 O. & H. 194; 21 L. T. N. S. 119, 120. 1878 SOMERVILLE uncertain as a measure of length, the unit of which should be the judge's foot; because one judge's foot would be longer and another shorter. We cannot help that. I wish with all my heart that the Legislature would find out some test to relieve us from that uncer- LAFLAMME. tainty. Lichfield case (1)—Mr. Justice Willes said :-- I think it may be taken that those who have hitherto had the decisions of election cases, have held that an agent to canvass would be an agent within the statute. It having been stated on behalf of the Respondent that he employed no committee, but there were persons who acted in drawing up cards, &c., Mr. Justice Willes said: That is the modern fashion apparently; but persons who do what committeemen formerly did, and are seen taking an active part, are just as much committeemen as if they were called so. Windsor case (2)-Mr. Justice Willes said he did not think a mere card messenger could be said to have been an agent. I have stated that authority to canvass and I purposely used the word "authority" and not " employment" because I meant the observation to apply to persons authorized to canvass, whether paid or not for their services-would, in my opinion, constitute an agent; and that authority for the general management of an election would involve authority to canvass. I do not say that there may not be instances of agency on behalf of a candidate besides those of authority to canvass, and authority for the general management of an election. He thought an agent for election expenses might be, but a mere messenger could not be, regarded as an agent. In the Taunton case, 1869 (3), the question as to the effect the illegal act of a volunteer association may have on the status of a candidate, is a good deal discussed. One of the head notes of the case is : The managers of the Conservative Association, having circulated (2) 1 0. & H. 3. (1) O. & H. 25. (3) 21 L. T. (N. S.) 169. บ. 1878 SOMERVILLE addresses and papers issued by the candidate, will be presumed to have done so with his knowledge, or with that of his agents, so as to constitute the association an agent for such candidate, and to make LAFLAMME. him responsible for any illegal acts of its managers. v. That case was also tried before Lord Blackburn, and he referred to the question of agency very much as he did in the Hereford case (1). He uses this language: If there is evidence to show that the party is acting for the member who is returned, I think one should consider him to be an agent. If, taking the spirit and object of the rule, you think, bringing your common sense to bear upon it, that he was substantially an agent, I think it is all I could say to a jury; and then, as the Legislature have thought fit to make me both judge and jury, I must apply that guide as best I can myself. I at once see the great inconvenience of such a rule being laid down in this: if that be the proper guide to be taken, the law must be very uncertain. In the concluding part of his judgment, he uses these words: The candidate may show that the body acting in that way was acting officiously for him, as I may call it; that it was not with his consent, and was against his will; but the presumption does arise, I think, that it was done in his favor-done for him-unless there be something to show to the contrary. Then taking it, as I said before, as a matter of common sense, looking to the substantial degree to which they went, I think the degree goes very far. I think in this case such a degree of benefit would be derived from their assistance, that their assistance was so important to the candidate, that it fairly establishes this, that if he took their assistance, did not hold them off, or repudiate them, he must abide the consequences and be responsible for their malpractices. The same learned judge tried the Staleybridge case (2). In one part of his judgment he said: Each case must be considered with reference to the whole facts taken together and be delivered by the solution of the question, whether the relation between the person guilty of the corrupt prac tice and the member was such as to make the latter fairly responsible for it. It was then held, as laid down in the head note of the case: (1) 10. & H. 10. (2) 1 O. & H., 70; 20 L. T. N. S. 75. |