Case: Michetti v. Veach, 2023 BCCA 317 (CanLII)
Keywords: “vote buying”; coffee, tea, and cinnamon buns; election law; Local Government Act, R.S.B.C. 2015, c. 1
Synopsis:
This case is about the validity of a mayoral election in Pouce Coupe, British Columbia. The Appellant, Ms. Lorraine Michetti is the “second-place candidate” in that election. She alleges that the “winning candidate”, Ms. Danielle Veach, contravened the Local Government Act, R.S.B.C. 2015, c. 1. Specifically, that Ms. Veach engaged in “vote buying by offering refreshments, in the form of coffee, tea, and cinnamon buns, at a ‘Tea and Talk’ event”. (See para. 1). The Honourable Justice Branch declares the election is valid; confirming the result. The Court of Appeal (Harris, Fitch, and Voith JJ.A.) dismisses Ms. Michetti’s appeal.
Importance:
The Court of Appeal decision addressed the proper interpretation of the “vote buying” prohibition outlined in s. 161(2) of the Local Government Act. According to the Court of Appeal, the “key question” is whether s. 161(2) prescribes a subjective mens rea component or not. (See para. 2).
Section 161 provides as follows:
161(1) In this section, “inducement” includes money, gift, valuable consideration, refreshment, entertainment, office, placement, employment and any other benefit of any kind.
(2) A person must not pay, give, lend or procure inducement for any of the following purposes:
(a) to induce a person to vote or refrain from voting;
(b) to induce a person to vote or refrain from voting for or against a particular candidate;
(c) to reward a person for having voted or refrained from voting as described in paragraph (a) or (b);
(d) to procure or induce a person to attempt to procure the election of a particular candidate, the defeat of a particular candidate or a particular result in an election;
(e) to procure or induce a person to attempt to procure the vote of an elector or the failure of an elector to vote.
(3) A person must not accept inducement
(a) to vote or refrain from voting,
(b) to vote or refrain from voting for or against a particular candidate, or
(c) as a reward for having voted or refrained from voting as described in paragraph (a) or (b).
(4) A person must not advance, pay or otherwise provide inducement, or cause inducement to be provided, knowing or with the intent that it is to be used for any of the acts prohibited by this section.
(5) A person must not offer, agree or promise to do anything otherwise prohibited by this section.
(6) A person prohibited from doing something by this section must not do the prohibited act directly, indirectly or by another person on behalf of the first person.
At first instance, Justice Branch concluded that “vote buying” occurs when a person provides an “inducement” with the subjective intention of influencing another person’s voting behaviour. (See para. 18). The Court of Appeal agreed.
The Court determined that a violation of s. 161(2) gives rise to a regulatory offence and, therefore, is subject to “a presumption of strict liability”. (See para. 25). However, the Court of Appeal accepted that the inclusion of the phrase “for the purpose of” in a statute generally indicates legislative intention to override the presumption and to establish a subjective mens rea offence. (See, for example, La Souveraine, Compagnie d’assurance générale v. Autorité des marchés financiers, 2013 SCC 63 at paras. 37, 40).
The words “for the purpose of” are not directly present in s. 161(2). However, the Court determined that, in this case, the inclusion of “substantially the same language” was “significant”; that the similar language chosen “indicates legislative intent that the offence of contravening s. 161 is a subjective mens rea offence”. (See para. 29).
The Court of Appeal noted that its conclusion was consistent with La Souveraine, Compagnie d’assurance générale v. Autorité des marchés financiers and the modern approach to statutory interpretation. (See para. 30; see also Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC) at para. 21). Reading the plain language of s. 161, the Court of Appeal determined it was “clear” that “acting for a purpose engages intentionality”. (See para. 31). Although elsewhere (i.e. in s. 161(4) the Local Government Act), the legislature chose to include an explicit mens rea requirement, the Court of Appeal determined that this does not indicate a contrary intention with respect to s. 161(2). (See para. 36).
This decision is also significant because the Court of Appeal outlined the policy objectives which it says are “built into protecting the integrity of elections”. (See para. 41). The Court of Appeal noted that the legislature chose to “provide a very broad definition of what kinds of ‘inducements’ might have the potential to corrupt the democratic process, while recognizing that not all of those ‘inducements’ risk undermining the integrity of our elections”. (See para. 42).
However, in addition to these objectives, the Court of Appeal emphasized “finality, certainty, and the discouragement of frivolous challenges to an election” are also relevant here. As per the Supreme Court of Canada decision in Opitz v. Wrzesnewskyj, 2012 SCC 55, the Court affirmed that election results should not be overturned lightly. (See para. 43).
Finally, the Court considered the Appellant’s submission that endorsing a mens rea requirement “risks permitting corrupt practices to occur, because proof of intent is challenging”. For the Court of Appeal, “that fear is misplaced” because judges are “capable of seeing through statements of innocent intent in instances where there was a clear attempt to buy votes”. (See para. 45). In this case, the Court of Appeal determined that “no reasonable voter would have concluded that the provision of a cup of coffee and a cinnamon bun was intended to buy their vote”. (See para. 46).
Counsel for the Appellant: Nathalie Baker and Kemily Ho (Eyford Partners LLP, Vancouver)
Counsel for the Respondent, Danielle Veach: Matthew Voell and Rachel Vallance (Lidstone & Company, Vancouver)
Counsel for the Respondent, Village of Pouce Coupe: Sukhbir Manhas (Young Anderson Barristers & Solicitors, Vancouver)
Counsel for the Intervener, Attorney General of British Columbia: Alexander Bjornson and R. Shaw (Ministry of the Attorney General, Vancouver)