D. C. 1903 REX V. HAYES. parents who were presumably British subjects; and upon the fact that the only evidence given of the state of the law in the United States was not sufficient to satisfy the requirements of 60-61 Vict. ch. 11, sec. 9 (D.), which confines the operation of the Act to such foreign countries as have enacted and retained in force, or as enact and retain in force, laws or ordinances applying to Canada of a similar character-inasmuch as the only evidence given of the kind was the production and filing of a pamphlet issued by the Treasury Department, entitled "Immigration Laws and Regulations," dated April 9th, 1900, and purporting to be printed at the Gove: nment printing office at Washington, 1900. The decision of the case, however, was based upon other grounds. February 2. STREET, J. [after stating the facts of the case as above:]-The 1st section of ch. 11 of 60 & 61 Vict. (D.) is as follows: "From and after the passing of this Act it shall be unlawful for any person in any manner to prepay the transportation, or in any way to assist or, encourage the importation or immigration of any alien or foreigner into Canada, under contract or agreement, parole or special, express or implied, made previous to the importation or immigration of such alien or foreigner, to perform labour or service of any kind in Canada." The 3rd section of the same Act as amended by ch. 13 of 1 Edw. VII. (D.) is as follows: For every violation of any of the provisions of section 1 of this Act, the person violating it by knowingly assisting, encouraging or soliciting the immigration or importation of any alien or foreigner into Canada to perform labour or service of any kind under contract or agreement, express or implied, parole or special, with such alien or foreigner, previous to his becoming a resident in or a citizen of Canada, shall forfeit and pay a sum not exceeding $1000 nor less than $50." And by sub-sec. 3 of sec. 3 as so amended, it is provided that such sum may, with the written consent of the AttorneyGeneral of the Province, be recovered upon summary conviction before a police magistrate. The offence of importing aliens under a contract to do work in this Province is a new offence created by the statutes in question, and it is an essential element in the offence that it shall be done "knowingly:" so that unless done "knowingly' it is no offence at all. In the present case the information does not charge the defendant with having "knowingly" done the acts charged, nor is he convicted of having "knowingly" done them: so that he has not been either charged with, or convicted of, any offence known to the law, and the conviction on its face is clearly bad: Carpenter v. Mason (1840), 12 Ad. & El. 629; Reg. v. Justices of Radnorshire (1840), 9 Dowl. P.C. 90. The next question is whether the conviction is aided by sec. 889 of the Criminal Code, 55-56 Vict. ch. 9 (D.) which directs that no conviction on being removed by certiorari shall “be held invalid. for any irregularity, informality or insufficiency therein, provided that the Court or Judge before which or whom the question is raised is upon perusal of the depositions satisfied that an offence of the nature described in the conviction has been committed over which such Justice has jurisdiction." I have been unable to come to the conclusion that the omission from the information and the conviction of one of the essential elements of the offence is either an irregularity, an informality, or an insufficiency. I think that it is not a matter of form merely but of substance: and that it is a fatal and incurable defect in the conviction. The police magistrate has never been required to pass upon the question as to whethe the defendant is guilty of an offence under the statute or not: he has only been required to pass upon one-half of the facts necessary to make out the charge against the defendant. It is entirely consistent with the charge and the conviction that the defendant is innocent of any offence at all. It seems to me that such a state of things is not that which is intended by the descriptions "irregularity," "informality," and "insufficiency," and it is widely distinguishable from the specimen objections given in sec. 890. In case, however, I should be wrong in this view, I think it proper to say that having carefully considered the depositions I am not satisfied that the defendant has been shewn to have 14-VOL. V. O.L.R. D. C. 1903 REX V. HAYES. Street, J. D. C. 1902 REX บ. HAYES. Street, J. knowingly assisted, encouraged or solicited the importation of any alien or foreigner into Canada. The evidence shews that the defendant went from Toronto to Lowell, Mass., for the purpose of engaging French-Canadian workmen to work in the carpet factory here: that he engaged Pierre De Rocher, a French-Canadian, born in Canada of French-Canadian parents, and that at Pierre De Rocher's request he also engaged Frederick De Rocher, Pierre's brother, believing at the time that Frederick also was born in Canada of French-Canadian parents. It now appears that Frederick De Rocher was born in the United States, but that his parents were born in Canada. There is no evidence that either he or his parents were ever naturalized in the United States. The presumption from the only facts in evidence is that his parents are British subjects though residing in the United States, and that therefore Frederick De Rocher is a British subject: Dicey's Conflict of Laws, 1896, p. 178; 2 Steph. Comm., 12th ed., p. 406. There is, therefore, every reason for the conclusion that the defendant believed when he engaged Frederick De Rocher to come to Toronto that he was only bringing back to Canada a British subject residing in the United States. The Act under which this prosecution is brought is directed only against the importation of aliens and foreigners; and one who is a British subject is neither an alien nor a foreigner although he happen to be living abroad: Anderson's Dictionary of Law; Black's Law Dictionary. The conviction must, therefore, be quashed as being bad upon its face by reason of a defect which the evidence does not enable us to disregard, and the prosecutor should pay the costs. There will be the usual order protecting the magistrate. BRITTON, J., concurred. A. H. F. L. [BRITTON, J.] SMITH V. CAREY. Penalties-Ontario Election Act-Person Voting Knowing that he has no Right to The defendant, having shortly before an election for the Legislative Assembly Held, that the defendant was not liable to the penalty imposed by sec. 168 of the Ontario Election Act, R.S.O. 1897, ch. 9, for voting knowing that he had no right to vote. South Riding County of Perth (1895), 2 E. C. 30, followed. 2. That the defendant was not liable to the penalty imposed by sec. 181 of the Act, for wilfully voting without having at the time all the qualifications required by law. "Wilfully voting" as in this section, and applying it to the facts of the case, was practically the same as voting knowing that he, had no right to vote. 3. That the defendant was liable to the penalty of $400 imposed by sec. 94, sub-sec. 5, of the Act, for not having taken the oath of qualification required to be taken by agents voting under certificate; but, as the defendant was not asked to take the oath, the deputy returning officer not having been aware that it was necessary, and the plaintiff himself was present when the defendant voted, and did not object, the provisions of R.S.O. 1897, ch. 108, should be applied, and the penalty reduced to $4C. AN action for the recovery of penalties under the Ontario Election Act, R.S.O. 1897, ch. 9, and amendments. The facts are stated in the judgment. The action was tried by BRITTON, J., without a jury, at Kingston, on the 1st October, 1902. John McIntyre, K.C., and E. H. Smythe, K.C., for the plaintiff. J. L. Whiting, K.C., and J. McDonald Mowat, for the defendant. January 6. BRITTON, J.:—What is complained of took place at the election which was held on the 22nd and 29th days of May, 1902, of a member to serve in the Legislative Assembly of the Province of Ontario for the electoral district of the county of Frontenac. Britton, J. 1903 SMITH บ. CAREY. The candidates were John S. Gallagher and William I. Shibley. The plaintiff is a voter residing within the electoral district, and in the election acted as the financial agent for the candidate John S. Gallagher. The defendant, at the time of the election and for five or six months before, resided in the city of Kingston, and was not a resident of the electoral district of Frontenac. The plaintiff alleges: 1. That the defendant, being a non-resident of the electoral district, voted at the election, knowing that he had no right to vote, thereby subjecting himself to a penalty of $100 under sec. 168 of the Act. 2. That the defendant wilfully voted at that election without having, at the time, all the qualifications required by law for entitling him so to vote—that is, not having the qualification of residence-thereby subjecting himself to a penalty of $200 under sec. 181 of the Act. 3. That the defendant, upon the allegation by him that he had been appointed an agent of the candidate William I. Shibley, received from the returning officer a certificate to vote at the poll in polling sub-division No. 5 in the township of Kingston, in the said district, and the defendant voted at said poll without having taken, at the polling place and before he voted, any oath of qualification prescribed to be taken by voters, thereby subjecting himself to a penalty of $400 under sec. 94, sub-sec. 5, of the Act. There are not in this case many questions of fact in dispute. The defendant, prior to his removal to the city and taking up his residence there, resided in the township of Kingston, within the electoral district of Frontenac. His name was on the assessment roll for 1901 for that township, and was on the last revised list of voters for either polling subdivision No. 1 or polling subdivision No. 2, being the polling subdivision known as "Bath Road." The defendant was a friend of the candidate Shibley, and, being well acquainted with the township electors, was asked to act as agent for Shibley at polling subdivision No. 5. The defendant says that nothing was then said to him about his |