CITATION: R. v. Tridico, 2010 ONCA 184
DATE: 20100310
DOCKET: C51019
COURT OF APPEAL FOR ONTARIO
Winkler C.J.O., Goudge and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Applicant /Appellant
and
Grace (Graziella) Tridico and Orlando Tridico
Respondents
Dena Bonnet, for the appellant
A. Palombi and J.A. Bisceglia, for the respondents
Heard: January 11, 2010
On appeal from the order of Justice Gerald E. Michel of the Ontario Court of Justice dated July 20, 2009, with reasons reported at 2009 ONCJ 176.
Goudge J.A.:
INTRODUCTION
[1] On November 13, 2006, there was a municipal election in the city of Sault Ste. Marie, in which Lorena Tridico was elected as a city councillor in Ward 4. Based on his actions in that election, her father, Orlando Tridico, was charged and convicted by a Justice of the Peace of voting in a voting place in which he was not entitled to vote, contrary to s. 89(c) of the Municipal Elections Act, 1996, S.O. 1996, c. 32 ("MEA"). He was also charged and convicted of furnishing false information to a person authorized to receive it, contrary to s. 89(h) of the MEA.
[2] Also arising out of actions in this election, Lorena Tridico's sister, Grace Tridico, was charged with the same two offences and was convicted by a Justice of the Peace as a party to these offences, as a result of assistance she gave to Vito and Natalina Muzzi on election day.
[3] Orlando Tridico and Grace Tridico were convicted in separate trials. Their appeals were heard together and, on July 20, 2009, Justice Michel of the Ontario Court of Justice allowed both appeals.
[4] Justice Michel found that the convictions under s. 89(c) must be quashed because the Crown did not establish that the voting subdivisions in the election were properly constituted under s. 18 of the MEA. Without this, he found that he could not conclude that the voting places in question had been properly established.
[5] Justice Michel found that the convictions under s. 89(h) must be set aside because the Crown did not prove that the officials to whom false or misleading information was given had been appointed in compliance with s. 15 of the MEA.
[6] On September 18, 2009, Weiler J.A. granted the Crown leave to appeal and ordered the two appeals to be heard together.
[7] For the reasons that follow, I conclude that Justice Michel erred in law, and that both appeals must be allowed and the convictions restored.
The Orlando Tridico Trial
[8] At Mr. Tridico's trial, Malcolm White, the Deputy City Clerk, testified that Sault Ste. Marie is divided into six wards, and that two members of City Council are elected from each ward by those entitled to vote in that ward.
[9] Mr. Tridico testified that he lived in Ward 5, but owned property in Ward 4, and thought that this entitled him to vote in Ward 4, the same ward where his daughter was running for council. He had never previously voted in Ward 4. On election day, Mr. Tridico attended at Holy Angels School and presented an application to be added to the voters' list for Ward 4, voting subdivision 433. His application, which showed his qualifying address to have changed from his home address in Ward 5 to the address of the property he owned in Ward 4, was accepted. As a result, Mr. Tridico voted in Ward 4 at Holy Angels School.
[10] Catherine Taddo, an employee of the city, testified that she was trained and appointed as an election assistant at Holy Angels School. It was a voting place established for this election in Ward 4. Her assigned tasks as an election assistant included accepting applications like that of Mr. Tridico. She was authorized to do so pursuant to a written delegation of authority signed by the City Clerk, which delegated to her any or all of the Clerk's powers and duties that the Clerk deemed necessary to conduct the election.
[11] The Justice of the Peace first concluded that the offences with which Mr. Tridico was charged were absolute liability offences. He went on to find that: (i) under the MEA, one's residence dictates where one is entitled to vote; (ii) Mr. Tridico presented false information regarding his residential address to Catherine Taddo; and (iii) as a result, Mr. Tridico voted at a voting place in which he was not entitled to vote. Accordingly, he convicted Mr. Tridico of both charges.
The Grace Tridico Trial
[12] The evidence at Ms. Tridico's trial was very similar. Vito and Natalina Muzzi have lived at 151 Wallace Terrace for 45 years. It is located in Ward 5. Ms. Tridico assisted them in presenting their applications to be added to the voters' list for Ward 4, subdivision 426. The applications asserted that their qualifying address had changed to 402 Albert Street East, Apartment 1, a residence located in Ward 4 where the Muzzis did not live, from their previous qualifying address in Ward 5. The applications were presented at St. Andrew's Church, a voting place established for Wards 2 and 4, but not for Ward 5.
[13] Norman Fera, a city employee, was authorized to work at St. Andrew's Church as an election assistant, whose assigned tasks included accepting applications like those of the Muzzis. He accepted their application pursuant to a written delegation of authority in the same terms as that given to Ms. Taddo, and signed by the City Clerk. As a result, the Muzzis were added to the Ward 4 voters' list and were found to have voted in Ward 4 at St. Andrew's Church.
[14] The Justice of the Peace concluded that Grace Tridico acted as agent for the Muzzis in presenting false information to Mr. Fera and, as a consequence, the Muzzis voted at a voting place in which they were not entitled to vote. He therefore convicted Ms. Tridico of both charges.
The Appeal before Justice Michel
[15] On appeal, Justice Michel agreed that both offences were absolute liability offences. However, he quashed the convictions because he found that the legal requirements of the MEA had not been proven by the Crown. He set out those requirements in the Orlando Tridico appeal at paragraph 15:
Before an offence can be committed under section 89 of this Act, the prosecution must establish beyond a reasonable doubt that the election by voting subdivision is properly constituted, and that delegations to each election official for each specific voting place are clear and completely in writing by reference to the Act or in complete language.
[16] He repeated this in the Grace Tridico appeal at paragraph 2:
As I have found in the matter of Orlando Tridico, proof that sections 18 and 15 of the Elections Act have been complied with is necessary before the court can conclude that there were voting subdivisions and voting places, and that officials had been clearly appointed in writing setting out their scope of authority including voting places at which such authority could be exercised.
Analysis
[17] In this court, the Crown's primary argument was that Justice Michel erred in concluding that compliance with requirements of ss. 18 and 15 of the MEA was a constituent element of these offences and had not been proven by the Crown.
[18] To assess this argument, an outline of the legislative context is necessary. The ward system under which this election was conducted is authorized by ss. 217 and 222 of the Municipal Act, 2001 S.O. 2001, c. 25. It permits a municipality to divide itself into wards and have the members of its city council elected by those wards.
[19] The MEA provides that an elector is entitled to vote once for each councillor position to be filled, but is entitled to do so in "only one of the voting places established for the area of jurisdiction of the municipality" … (see s. 51(2)). In the election at issue, two councillors are elected by each ward. Thus, an elector is entitled to vote for two candidates for council in his ward, but not to vote in any other ward.
[20] Section 2 of the MEA defines a person's residence as his or her permanent lodging place and provides that a person may have only one residence at a time. The respondents do not contest that a person's ward is the one in which he or she resides. This is consistent with the underlying policy of s. 51(2) of the MEA namely, that councillors from a ward represent the interests of those who live in the ward and are therefore elected by them.
[21] Section 45(1) requires the clerk of the municipality to establish the number and location of voting places for an election. Section 28(1) requires the clerk to prepare the voters list for use in each voting place.
[22] The respondents were charged under ss. 89(c) and (h) of the MEA. Those sections read as follows:
- A person is guilty of an offence and liable, on conviction, to a fine of not more than $5,000, if he or she,
(c) votes in a voting place in which he or she is not entitled to vote;
(h) furnishes false or misleading information to a person whom this Act authorizes to obtain information.
[23] Central to this appeal are ss. 18 and 15 of the MEA. Justice Michel concluded that the Crown must prove proper compliance with section 18 to obtain a conviction under section 89(c) and failed to do so in both these cases. Section 18 reads as follows:
- (1) On or before each date fixed by the Minister of Finance under section 15 of the Assessment Act, the clerk of each local municipality may divide the local municipality into voting subdivisions.
(2) If the clerk acts under subsection (1) he or she shall, before the fixed date, inform the assessment commissioner of the boundaries of the voting subdivisions.
[24] Similarly, Justice Michel concluded that the Crown must prove compliance with s. 15 to secure a conviction under s. 89(h) and failed to do so in both cases. Section 15 reads:
- (1) When it is necessary to conduct an election, the clerk shall appoint a deputy returning officer for each voting place established under section 45 and may appoint any other election officials for the election and for any recount that the clerk considers are required.
(2) The clerk may delegate to a deputy returning officer or other election official any of the clerk's powers and duties in relation to an election, as he or she considers necessary.
(3) The clerk may continue to exercise the delegated powers and duties, despite the delegation.
(4) The delegation shall be in writing.
[25] In my view, Justice Michel erred in both respects.
[26] The simple answer to the first of these two conclusions is that both respondents were charged under s. 89(h), which defines the offence as voting in a voting place in which an individual is not entitled to vote. The respondents were not charged with voting in a voting subdivision in which they were not entitled to vote.
[27] In both cases, the Crown proved that the voting place in which each respondent voted (or, in Ms. Tridico's case, the voting place in which she facilitated voting by the Muzzis) was for voters in Ward 4 and not Ward 5. In each case, the voters concerned lived in Ward 5 not Ward 4. Neither Ms. Tridico nor the Muzzis were entitled to vote in a voting place for Ward 4 electors. In these circumstances, no question of voting subdivisions needed to be addressed by the Crown's evidence.
[28] The answer to Justice Michel's second conclusion is that in both these cases the written delegations to the election assistants were for those powers and duties considered necessary by the City Clerk to conduct the election. That is precisely what is required by s. 15(2). In addition, there was ample evidence in each case allowing the Justice of the Peace to conclude that the duties of these elections assistants included accepting the applications tendered by Mr. Tridico, and by Ms. Tridico on behalf of the Muzzis. It cannot be contested that these applications contained false or misleading information. Thus, the offence under s. 89(h) were made out in both cases.
[29] In summary, therefore, I conclude that the Crown established what was necessary to convict both respondents of both charges.
[30] Each respondent advanced a separate argument that the convictions must be set aside.
[31] Mr. Tridico says that Justice Michel erred in finding these offences to be ones of absolute liability and not strict liability. I do not agree. Given the very moderate maximum fine available, the absence of any possibility of imprisonment, the precise language used, the regulatory pattern of the MEA and the importance of preserving the integrity of elections in Ontario regardless of the mental element of those engaging in the proscribed conduct, Justice Michel properly characterized these offences.
[32] Ms. Tridico argues that the Justice of the Peace gave insufficient reasons to convict her. However, this is an appeal not from the trial court but from Justice Michel. More importantly, it is clear that the reasons at first instance presented no difficulty to Justice Michel in exercising his appellate responsibilities. Had the appeal come directly to this court, I would have reached the same conclusion. This argument fails.
[33] In the result, the Crown appeals are allowed and the convictions are restored.
RELEASED: March 10, 2010 ("W.W.")
"S.T. Goudge J.A."
"I agree W. Winkler C.J.O."
"I agree David Watt J.A."