r v. SEAN McADAM, 2022 QCCQ 8721

Chief Electoral Officer of Québec c. McAdam 2022 QCCQ 8721 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU. TOWN OF GATINEAU Criminal and Penal Division No: 550-61-071530-212 DATE: September 12 th , 2022 ______________________________________________________________________ BY THE HONOURABLE CHRISTINE LAFRANCE, PRESIDING JUSTICE OF THE PEACE ______________________________________________________________________ CHIEF ELECTORAL OFFICER OF QUÉBEC Prosecutor v.

SEAN McADAM Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] On November 5 th , 2017, a general election was held in the municipality of Chelsea, in the Outaouais region. During the election period preceding that election [1] , a text written by the defendant appeared in the local newspaper The Low Down to Hull & Back News . [2] The

article was entitled " Open letter to all municipal candidates ". The cost of this publication, totalling $626.46, was paid by the defendant [3] . [ 2 ] The defendant is not the official agent of a party or of a licensed independent candidate, or his deputy [4] . Nor is he an authorized private intervenor in this election [5] . [ 3 ] It is because of this publication that the Chief Electoral Officer (CEO) accuses the defendant of having incurred or authorized an election expense in the amount of $626.46 for the publication of a letter to the electors of this municipality, without being the official agent of a party or an authorized independent candidate or his deputy, thereby contravening

section 455 of the Act respecting Elections and Referendums in Municipalities (AERM), committing the offence stipulated in paragraph 1 of

section 622 of this Act. MATTERS IN DISPUTE 1. Does the respondent's text constitute an election expense? 2. If so, has the defendant demonstrated due diligence? LEGISLATIVE CONTEXT [ 4 ] As the Quebec Court of Appeal pointed out in DGE v. Piché [6] [26] Un des objectifs de la LERM consiste à contrôler les moyens financiers qui peuvent être mis en oeuvre dans le cadre d'exercices démocratiques fondamentaux, qu'il s'agisse d'élections ou de référendums. En cela, la LERM entretient un rapport étroit avec la Loi électorale [5] et la

Loi sur la consultation populaire [6] . Toutes deux contiennent des dispositions de nature analogue. [27] La philosophie sous-jacente à ces dispositions postule que la qualité du processus démocratique exige le maintien d'un équilibre de force entre les différents candidats ou les différentes options proposées aux votants. L'objectif visé par les règles de financement lors d'élections s'inscrit donc dans la promotion d'un modèle électoral dit égalitaire. [ 5 ] Thus, to ensure political equality, the AERM provides for rules limiting spending and financing during the election period.

This principle of equality was recognized by the Supreme Court of Canada in Libman v. Quebec (Attorney General) [7] and Harper v. Canada (Attorney General) [8] . [ 6 ]

Section 455 of the AERM provides:

455. During the election period, no person other than the official agent of an autothorized party or independent candidate or, for any amount up to the amount fixed by the official agent of the party pursuant to

section 385, the deputy of the official agent, may incur or authorize election expenses, subject to

section 456. All election expenses incurred or authorized by a deputy, up to the fixed amount, are deemed to have been incurred or authorized by the official agent. Within 60 days after polling day, every deputy shall furnish to the official agent a detailed account of the election expenses he has incurred or authorized accompanied with the invoices, receipts and other vouchers. The official representative or his delegate may incur or authorize an election expense contemplated in

section 452. Any such expense is deemed to have been incurred or authorized by the official agent. [ 7 ]

Section 451 defines what an election expense is: 451. The cost of any goods or services used during an election period to (1) promote or oppose, directly or indirectly, the election of a candidate or the candidates of a party; (2) propagate or oppose the program or policies of a candidate or party; (3) approve or disapprove courses of action advocated or opposed by a candidate or party; or (4) approve or disapprove any act done or proposed by a party, a candidate or their supporters, is an election expense.

Does the defendant's text constitute an election expense? [ 8 ] It is relevant to reproduce the text published by the defendant: [ 9 ] In order to conclude that the publication constitutes an election expense, the prosecution must prove beyond a reasonable doubt that the open letter is directed at a candidate or candidates and that it favours or disfavours the candidate or candidates concerned. [ 10 ] This is a strict liability offence, and the prosecution need not prove malice on the part of the defendant [9] . [ 11 ] For this analysis, the text of the open letter must be examined in light of the evidence heard.

The analysis of the publication is not limited to the title written by the author. It is not the heading that counts but the actual subject matter of the letter, what is written in its entirety.

[ 12 ] In order to determine whether the open letter is directed at a candidate or candidates, the court will use the test of the reasonable person who reads the newspaper, or who reads the open letter. What is presented to him or her? This reasonable person is obviously interested in the subject matter, otherwise he or she does not read the letter. He or she is an objective person who is well informed about the circumstances of the election [10] .

The fact that some residents of the Municipality of Chelsea are not interested in the election is not relevant to the analysis. [ 13 ] The open letter is addressed to all municipal candidates. However, it specifically targets four candidates as examples. Although no names are mentioned, they are necessarily one of the 16 candidates [11] . [ 14 ]

Section 451 of the AERM does not require that the names of candidates be included. It is sufficient to promote a candidate directly or indirectly. The name of a candidate is clear evidence, if not an absolute certainty, that the person is being targeted. This is not the case here. [ 15 ] The description of a candidate may also be conclusive in identifying him or her. The description must be sufficient for our reasonable person interested in the subject to know who it is. [ 16 ] Identifying a person is not enough. The letter must favor or disfavor a candidate.

This is where the text of the letter comes into its own. [ 17 ] This letter is published in the local newspaper. The newspaper is published in print and electronic form. It has a circulation of approximately 2,700 copies each Wednesday. [ 18 ] The following witnesses were heard: Mrs. Mantell, Mr. Labrie, Mr. Kehoe, Mrs. Lockwood, Mrs. Martin and Mr. Ricard. Here is what the evidence shows. [ 19 ] The letter was published at the request of the defendant. The defendant contacted Ms. Nikki Mantell, the publisher of the newspaper. He asked that a full page of his open letter be published as an advertisement. Ms.

Mantell agreed to publish the letter because it was a matter of public interest and there were no names mentioned. She herself did not recognize anyone in the open letter. She learned later who they were, after a conversation with the defendant. She knows that the community pathway is a highly controversial issue in this election period. [ 20 ] Ms. Mantell confirms that there were many reactions to the publication. She received calls from citizens who were not happy with the open letter. Thus, she decided to publish letters of reaction in the subsequent edition of the newspaper [12] , including one from Ms.

Andrea Lockwood, with whom she had a long discussion. [ 21 ] Mr. Dominic Labrie has been a resident of Chelsea since 2015. He has been a political councillor for 15 years and is now a municipal councillor in Chelsea since November 7, 2021. He is the one who filed a complaint with the CEO following the reading of the open letter in 2017. Knowing the principles of the AERM, Mr. Labrie was shocked that a third party would intervene in the debate. [ 22 ] He identifies the fourth person targeted by the defendant as Mr. Tim Kehoe. During the campaign, he provided Mr.

Kehoe with public information about municipal management. He knows Mr. Kehoe's was oppose to the community pathway. [ 23 ] He knows that Mr. Kehoe has filed a lawsuit in Superior Court concerning this same project. Finally, he knows that Mr. Kehoe has a property adjacent to the community pathway and that the location of this property has been the subject of controversy since the beginning of the election campaign. [ 24 ] The combination of all of these elements makes it clear to him that the defendant is targeting Mr. Kehoe. Mr. Labrie did not have to speculate or consult with anyone. [ 25 ] Mr.

Kehoe confirms that he is a candidate in the 2017 election for Mayor of Chelsea. He has lived in Chelsea since 2017, along the Gatineau River, close to the proposed community pathway. He is part of a group in the community that opposes this pathway and is the plaintiff in a Superior Court action against the project. [ 26 ] In his view, the election issues are transparency and tax planning. The community pathway is an example of these issues.

He says that there is a lack of transparency and no fiscal or environmental studies on this project. [ 27 ] Someone from his campaign informed him of the open letter and he obtained a copy. Upon reading the letter, he recognizes the four persons targeted by the defendant: bullet 1: It is Ms. Landry; bullet 2: It is Ms. Lockwood; bullet 3: It is Mrs. Brulotte; bullet 4: Himself [ 28 ] Mr. Kehoe is frustrated by this letter which attacks his integrity, as “he had failed to declare a somewhat conflict of interest”. His campaign and family know that he is the number 4. Several people, including Mrs. Brulotte and Mrs.

Lockwood, contacted him to tell him about it, knowing that he was the number 4. [ 29 ] According to him, the letter points to four candidates, including him. These candidates are being singled out in the open letter. In the context of the open letter, he is the number 4.

[ 30 ] He recognizes Ms. Landry as the number 1. She has a property in the center of the village, and it is at this location that the controversial community pathway is located. Before the election, she is involved in the project and she was in dispute with the defendant concerning his development Hendrick Farm . [ 31 ] He recognized Ms. Lockwood as the number 2. He knew her background, her involvement in Chelsea. He knew she was a lawyer and that she was active in the wetlands preservation and conservation. He also knew that she had a house along the Gatineau river. [ 32 ] Finally, the number 3 is Mrs. Brulotte.

He has known her for several years and she is a family friend. She is clearly opposed to the community pathway. [ 33 ] Following the publication of the letter, many people asked him about the community pathway issue. The response of the electorate was negative and he did not win the election. [ 34 ] Ms. Lockwood is an environmental lawyer who has lived in Chelsea since 1988. She has been involved in the municipality as chair of a committee on the development of Chelsea. [ 35 ] She ran in the 2017 election because she had concerns about lack of transparency, accountability and debts.

The main electoral issue was the development of the land along Gatineau river. All her focus was on the community pathway. She was totally in favor of the pathway, but she had concerns about the cost and the environmental impact. [ 36 ] She was made aware of the open letter on October 18. She got e-mails and phone calls about it. Her husband was more upset than her. She thought it was a mistake. The next day, she went to the municipality to get a copy of the certificate of location. She got it to demonstrate she did not have any acquired right, as mention in the open letter.

She then went to see the defendant to show him the certificate, showing she had no acquired rights. [ 37 ] The defendant told her that he did not name her. He took the certificate of location and said he did not care whether the facts were accurate or not. That she cost him a lot of money because of her bylaw. Then he said “got ya!” [ 38 ] The following week, she published an open letter in the newspaper [13] following Ms. Mantell's offer. Afterwards, the electorate's reaction to her was negative.

She lost the election. [ 39 ] She recognizes herself as the number 2: her residence is on the edge of the pathway and she is the only candidate involved in the “wetlands by-law” in the early 2000s. [ 40 ] Ms. Barbara Martin is a candidate in the 2017 election. She has been the incumbent for the past 4 years. She describes her experience at City Council meetings negatively. According to her, there are pre-meetings where everything is decided.

In short, there is no transparency. [ 41 ] For her, the main issue in this election is the development of the community pathaway [ 42 ] She was aware of the open letter on the date of publication. She easily recognizes the four people targeted by the clues contained in bullets 1 to 4. In order, they are Ms. Landry, Ms. Lockwood, Ms. Brulotte and Mr. Kehoe. She did not do any research or contact anyone to identify them. [ 43 ] She was shocked by the letter because it was an affront to all the candidates. The letter implies that the candidates have a conflict of interest and questions their integrity.

In her opinion, the purpose is clearly to harm the four targeted candidates. [ 44 ] She points out that many people can identify the number 4, as Mr. Kehoe, because of the legal action. [ 45 ] The number 1 is Mrs. Landry because she knows that she lives in the heart of the village and that she is opposed to the use of private roads by pedestrians. [ 46 ] The number 2 is Ms. Lockwood because she knows that she was an environmental lawyer. The defendant expresses her in a pejorative way as a "self-proclaimed environmentalist". She also knows that she built a house at that time. [ 47 ] The number 3 is Ms.

Brulotte because she owns two properties adjacent to the community pathway. [ 48 ] Mr. Charles Ricard is director general of the municipality in 2017. He met with the defendant on several occasions in the course of his duties since the defendant is the head of a real estate development group. This is a major development in Chelsea, and he estimates the costs of the development, for water and sewer, at $23 million. [ 49 ] When he read the open letter, he easily identified the four candidates. According to him, anyone who follows the dynamics of the election campaign can easily identify them.

ANALYSIS [ 50 ] First, the Court believes each of the witnesses who testified. All testified sincerely and frankly. We are in no way dealing with dishonest witnesses. [ 51 ] With the exception of Ms. Mantell, all the witnesses recognized the candidates referred to in the letter because of the description written by the defendant. It is the description as a whole that makes the candidates readily identifiable to the witnesses. [ 52 ] Mr. Kehoe and Ms. Lockwood recognize themselves in descriptions 4 and 2. Obviously, they are interested persons because they are candidates.

Also, witnesses Labrie, Martin and Ricard can identify them easily. These witnesses are interested persons, objective and

informed of the circumstances of the election. [ 53 ] It was not only candidate Kehoe who identified himself, but several people who contacted him to discuss the open letter, knowing that he was the number 4, including Ms. Brulotte and Ms. Lockwood. Mr. Labrie, Mrs. Martin, and Mr. Ricard also identified him. [ 54 ] In addition, Ms. Martin recognized the four candidates by clearly identifying the distinctive elements: position on the community road, location of residences, occupation, and legal recourse. Mr. Kehoe also noted elements that made him recognize Ms. Landry, Ms. Lockwood, and Ms.

Brulotte: place of residence, occupation and involvement in the Municipality of Chelsea, family friend. [ 55 ] Ms. Lockwood recognized herself even though, in her opinion, no. 2 contained falsehoods. The subsequent meeting with the defendant was precisely to correct a falsehood relating to the construction of her residence. [ 56 ] Finally, Mr. Ricard indicates that he easily identifies the targeted candidates. He adds that a person who follows the dynamics of the election campaign can identify them. [ 57 ] The fact that Ms.

Mantell does not recognize anyone in the open letter is surprising, especially concerning candidate number 4, Mr. Kehoe. She knows that the community pathway is a controversial issue. Her newspaper, in the same issue [14] , even publishes an open letter from a citizen who clearly states that Mr. Kehoe lost in court and that the legal costs are estimated at $25,000 [15] . There is also an

article that discusses the cost of suing Chelsea mayoral candidate Kehoe [16] . A reasonable and interested person could not ignore this unusual situation for the Municipality of Chelsea, to say the least, and publish an open letter referring to this very point and an

article on the subject. [ 58 ] In fact, a simple reading of pages 5, 6 and 16 of the newspaper reveals to the reader that Mr. Kehoe has filed an action in the Superior Court and that he is a candidate in the election. [ 59 ] All of the evidence shows beyond a reasonable doubt that the defendant's letter is directed at candidates Landry, Lockwood, Brulotte and Kehoe. All the elements identified by the witnesses are decisive in identifying the candidates. It is not a matter of conjecture. [ 60 ] The evidence clearly shows that the community pathway is an issue in this election and not some other pathway.

It is the combination of the evidence and the testimony that leads to one logical conclusion, that a reasonable person knows that the defendant is targeting candidates Landry, Lockwood, Brulotte and Kehoe in his open letter. [ 61 ] Second, the content of the open letter unequivocally disadvantages the targeted candidates. The choice of words, the writing style and the tone clearly demonstrate opposition to the candidates. [ 62 ] The descriptions of the four candidates are telling examples.

Here are some revealing excerpts: - Predictably, one of this candidate's properties is on such a road [17] - Self-proclaimed environmentalist [18] - The so-called "wetlands by-law" [19] - Has now taken a sudden interest in the finances of the municipality as a mean of attacking the rails-to-trails proposal [20] - This candidate took the anti-trail fight to court, lost, cost taxpayers tens of thousands of dollars, and now is running- Without a hint of irony- on a platform of transparency and fiscal prudence [21] [ 63 ] And the end of the letter which asks: And then explain what use you could then possibly be as a Councillor [22] . [ 64 ] The defendant denounces the four candidates who, in his perception, are in conflict of interest.

He emphasizes the location of the residences of the candidates which border the community pathway. He points out that these four candidates are against the project. [ 65 ] The letter is not a simple request to the candidates to denounce a conflict of interest. The defendant ironically points out what he claims is a lack of transparency on the part of the four targeted candidates. The tone is acerbic.

Has the defendant demonstrated due diligence? [ 66 ] To avoid liability, the defendant must show that he took all the precautions that a reasonable person would have taken to avoid the commission of the offence. [ 67 ] The defendant did not testify. However, he points out to the Court that the evidence shows that he made sure that he did not contravene the AERM because he did not name anyone, his text is approved for publication and the description of the candidates is general. [ 68 ] First, the Court does not find that the text is approved for publication. Although Ms.

Mantell published the open letter, she is not a representative of the CEO. There were no discussions about its content with the defendant. It is an advertisement ready to be published, at the rate already established between the defendant and the newspaper. There is no discussion about the price for publication. [ 69 ] Second, the absence of a name cannot constitute due diligence on the part of the defendant. As elaborated above, it provides a

description such that identification of the applicants becomes obvious to a reasonable person. [ 70 ] The evidence does not reveal any steps taken by the defendant, prior to the publication of his open letter, to ensure compliance with the AERM. Thus, due diligence is not demonstrated. FOR THESE REASONS, THE COURT: DECLARE the defendant guilty of the offence charged subject to the constitutional issues raised in the notice of intention, filed by the defendant that will be heard the week of September 26, 2022. __________________________________ CHRISTINE LAFRANCE, J.P.M.

Me Corinne Fournier Me Amélie Gélinas The Chief Electoral Officer of Québec Me Cédric Thomas-Delarosbil Me Amélie Bellerose Attorney General of Québec Me Michael Rankin Me Guy Pinsonneault Counsel for the defendant Date of hearing: May 16, 17, 19 and 20, 2022