If ignorance of the law were proved there could be no fraudulent or criminal intent. Therefore, all those returning officers to whom the hon. gentleman has alluded would be discharged by any judge before whom they were brought. Of course, this does not add anything to the risk of prosecution ; they would be subject to the risk of prosecution in any case under this section. The section merely provides that the man shall be presumed to know the consequences of his own act. We should have returning officers who will be sufficiently diligent to make themselves acquainted with the law. I admit that the penalty is severe, but I think we might try this for a year and see how it works.
He is not held to be guilty, because it remains to be determined whether he can discharge himself of the burden the statute puts upon him. That is not an unreasonable burden. He is acting for the people of the whole polling division or the whole riding. If he violates the law which has been placed in his hand for his information, by putting a mark which would lead to the identification of a voter, the duty is put upon him of giving
a reason why he marked that ballot. That is the whole effect of my amendment.
With regard to the question whether the intent to do wrong ought or ought not to be presumed in tbe absence of proof to the contrary, it would strike me as a pretty serious proposition. We are dealing with not less than ten thousand deputy returning officers all over the country. They are men presumably wishing to do their duty ; but they are confronted, when they take charge of their work on election day, with a statute containing some hundreds of clauses which they are supposed to familiarize themselves with and by which they are instructed in a very great number of sections as to exactly what they must do under different circumstances. ' It would he a marvellous thiug if they did not occasionally make mistakes. I suppose that we all agree that where it is an innocent and honest mistake of which we have seen repeated instances in recent times, the man ought not to be punished by the infliction of such a serious penalty as this we have provided. But there might he circumstances under which it might he very difficult for him to prove his innocence. I instanced, the other day when this clause was under discussion, the case of a possible discussion at a poll witli regard to some particular voter-such
things, in practice, frequently occur. A man comes in whose right to vote is questioned, and some wiseacre suggests that the man's ballot ought to he endorsed with a memorandum so that if it turns out that he had no right to vote his ballot can be found and rejected. Now, if, pursuant to that arrangement made by consent of all parties at the poll the deputy returning officer were to write upon the ballot, if you like, ' This is John Smith's ballot,' that would manifestly be a writing upon the ballot for the purpose of identifying John Smith. But I would think that the deputy returning officer ought not to he punished if he did that honestly.
It may be said that he could readily prove his innocence.
I do not know that he could do it so readily. If indicted for this offence, he could go into the witness box and assert his honesty, but whether his assertion will be believed or disbelieved is another story. What you are proposing to do by this amendment is to put the burden of proving himself innocent upon the man who is accused of this particular offence. That is a very serious departure from the ordinary principles of the law. This clause is framed to make it an offence for the deputy returning officer to put upon any ballot paper a mark calculated to identify the voter with intent that the voter shall thereby he identified. The intent is the gist of the whole offence. If the intent is absent the charge falls to the ground. If it is a mark put on inadvertently, of course nobody is to be prosecuted. If it is not done with intent to identify the voter, there ought to be no prosecution. If it is done with intent to identify the voter, that intent may be honest, although in most cases I think it would be dishonest. But to prove dishonest intent, to prove intent to commit the offence struck at by the statute, it seems to me is a thing which ought to be upon the prosecution. Ordinarily it may be the surrounding circumstances Avill suffice to satisfy the jury of wrongful intent. But if they do not, if the surrounding circumstances as disclosed in the evidence leave the jury in doubt, ought we then to say that a man should be presumed guilty unless he is able to satisfy the jury or the judge that he was acting honestly ? I think not. I think we are going the full length when we penalize the man who does this with wrongful intent, and leave that intent to he established by the prosecution, just as it is established in other criminal cases.
Take the case of one man shooting another. If he points a revolver at him and pulls the trigger, he Is presumed to have intended to shoot the other man. The deputy returning officer ought to be in tbe same position. He actually commits an overt act, he puts a mark upon the ballot which he ought not to put
there. Is it not fair to assume that he did it with that intent? Why should not the, onus of proving that he had not that intent be upon mm? When the deputy returning officer places his mark he actually commits an act which he cannot commit legally, and it ought to be assumed that he would know that it would have the result of identifying that ballot.
Gr. McCarthy. Whatever the presumption of the law Is, it would still be the same under the amendment of the Minister of Justice. The leader of the opposition proposes to make that presumption go one step further than the law does. The man who places a mark on the ballot is presumed to have done it with intent, just as the man who presents a gun. I would suggest that if you prove that the man did mark this ballot you have nearly proven your case, and the intent will be presumed. But the onus of proof will be shifted.
If I am not mistaken, both the Customs Act and the Inland Revenue Act furnish many cases where the burden is put upon the defendant of proving that he had no intention of .defrauding the revenue laws. That is done in the public interest. It is necesary that the public revenue should be protected. The facts are peculiarly within the knowledge of the man who is accused. This is a case in which we have something quite as>
important as the protection to the revenue, that is, the protection of the secrecy of the ballot. The deputy returning officer has the law placed in his hands weeks before hand, and if lie sees tit to put a mark of identification upon the ballot, it is not imposing a serious burden upon him to ask that he shall show some good reason to the court why he contravened the law in that way, and in the absence of some good reason, it should be held that he put it there for the purpose of identification.
It is a question whether the court would not infer, by reason of the fact that the returning officer had placed a mark upon the ballot paper, that he had done so wrongfully, because he did it in contravention of the statute. I think the amendment of the leader of the opposition is a matter of surplusage. Any judge would think that a man who commits an act in infraction of a statute did it with wrongful intent. It might appear in the course of the prosecution that the intent would be rebutted by the circumstances, that is, any possible inference that might be drawn by reason of the fact that the mark was on the ballot would be rebutted. But I want to point out to the leader of the opposition that an infraction of the revenue laws is not quite similar to an infraction of the election law. This election law deals with an act which cau only be