T-1705-84
Robert Gould (Applicant)
v.
Attorney General of Canada, Chief Electoral Offi
cer of Canada, and Solicitor General of Canada
(Respondents)
Trial Division, Reed J.—Ottawa, August 28 and
29, 1984.
Constitutional law — Charter of Rights — Voting rights —
Application for interlocutory mandatory injunction enabling
prison inmate to vote in federal election — Inmate seeking
declaration Act s. 14(4)(e) contrary to Charter s. 3 — S. 3
clearly entitling applicant to relief — Evidence not establish
ing reasonable, demonstrably justified limit — Security con
siderations not justifying denial of right to vote — S. 14(4)(e)
not limited to security-risk prisoners — Right to vote com
prising more than casting ballot — Right to vote distinct from
Charter freedoms — Inability to participate in full electoral
process not justifying denial of all rights — Denial of consti
tutional right grave injustice — Canada Elections Act, R.S.C.
1970 (1st Supp.), c. 14, s. 14(4)(e) — Canadian Charter of
Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. I,
3, 24(1).
Penitentiaries — Prisoners' rights — Application for inter
locutory injunction enabling inmate to vote in federal election
— Seeking declaration Act s. 14(4)(e) contrary to Charter s. 3
— S. 3 clearly entitling applicant to relief — Evidence not
establishing reasonable, demonstrably justified limit — Secu
rity considerations not justifying denial of right to vote — S.
14(4)(e) not limited to security-risk prisoners — Inability to
participate in full electoral process not justifying denial of all
rights — Loss of applicant's constitutional right greatly out
weighing burden imposed upon respondents — Simple voting
procedure can be arranged before election day, though not if
many inmates involved — Canada Elections Act, R.S.C. 1970
(1st Supp.), c. 14, s. 14(4)(e) — Canadian Charter of Rights
and Freedoms, being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. I, 3.
Judicial review — Equitable remedies — Injunctions —
Application for interlocutory mandatory injunction enabling
prison inmate to vote in federal election — Inmate seeking
declaration Act s. 14(4)(e) contrary to Charter s. 3 — Issues
same as on other interlocutory applications — Applicant
meeting requirement of serious question to be tried — Also
strong prima facie case — Balance of convenience completely
in applicant's favour — Preservation of status quo unimpor
tant where very strong case and balance heavily for applicant
— Status quo incorporating law as existed at date of claim —
No undue delay in commencing proceedings — Respondents
not caught unprepared — Applicant not avoiding burden of
proof — Interlocutory injunction based on non final decision
and not inappropriate — Interlocutory injunction often in
practice deciding issue — That validity of legislation in issue
not precluding injunction — No rewriting of law — Relief
granted under general jurisdiction regarding mandatory
injunctions — Canada Elections Act, R.S.C. 1970 (1st Supp.),
c. 14, s. 14(4)(e) — Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 3.
Elections — Voting rights — Application for interlocutory
injunction enabling prison inmate to vote in federal election —
Inmate suing for declaration Elections Act s. 14(4)(e) contrary
to Charter s. 3 — S. 3 clearly entitling applicant to relief
No reasonable, demonstrably justified limit — Right to vote
comprising more than casting ballot — Inability to participate
in full electoral process not justifying denial of all rights —
Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14, s.
14(4)(e) — Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 1, 3.
Paragraph 14(4)(e) of the Canada Elections Act purported
to prohibit inmates of penal institutions from voting at elec
tions. The applicant, having been convicted of a criminal
offence, was a prisoner in a federal institution. With a federal
general election scheduled to occur, he commenced an action in
the Trial Division, seeking a declaration that paragraph
14(4)(e) was contrary to section 3 of the Charter—which
declares the right of every Canadian citizen to vote—and so
was invalid.
The instant proceeding was an interlocutory motion for a
mandatory injunction enabling the applicant to vote in the
upcoming election. It was anticipated that the applicant would
be released a few months after the election.
Held, the motion is granted.
The issues on this motion are the same as those which must
be considered in ruling upon any other request for interlocutory
relief.
With respect to the strength of the applicant's case, the
applicable requirement is the one stated in the American
Cyanamid case: namely, that there exist a serious question to
be tried. This condition has certainly been met. Indeed, the
applicant has probably established even a strong prima facie
case. By virtue of section 3, he has a constitutionally protected
right to vote and thus, at least at first sight, a very clear
entitlement to the relief which he claims.
Section 1 of the Charter does allow for the imposition of
reasonable, demonstrably justified limits on the applicant's
right; however, the evidence adduced did not significantly
weaken the applicant's prima facie case. In the first place, it is
difficult to accept security considerations as a justification for
denying inmates the right to vote. Experience in other jurisdic-
tions establishes that voting by inmates is workable, from both
a security and an administrative point of view. Moreover,
paragraph 14(4)(e) denies the vote not just to those prisoners
who are security risks or are prone to violence, but rather to all
prisoners.
Nor is there a basis for upholding the paragraph in the
argument that the security requirements of a penal institution
would prevent some inmates from participating in parts of the
electoral process other than the actual voting. It is generally
true that the right to vote guaranteed by section 3 comprises
more than the right to cast a ballot. Nonetheless, it would
appear that the right to vote was seen by the authors of the
Charter as being distinct from various freedoms set forth
elsewhere therein. Consequently, the need to curtail some of a
prisoner's rights does not imply that the denial of all of them is
justified.
While the Court has before it an affidavit stating that the
deponent has examined the concept of inmate voting over a
period of four years, and that expert evidence bearing upon the
reasonableness of the paragraph 14(4)(e) limitation might
possibly be led, the assertions in this affidavit were of a
tentative nature. There was also evidence that limitations on
the right of prisoners to vote exist in many countries, but that
evidence is not necessarily supportive of the view that such a
limitation is reasonable and demonstrably justified. Limitations
of this kind may instead be simply an outdated remnant of an
earlier period.
As for the balance of convenience, it is completely in the
applicant's favour. He stands to lose what is, at least prima
facie, a constitutionally guaranteed right, while the respondents
have virtually nothing to lose, inasmuch as the granting of the
injunction would make only a small demand upon them. Had
the claim been brought on behalf of a great number of inmates,
the balance of convenience might have tipped towards the other
side, since it would have been impossible to set up the necessary
voting machinery before election day. That fact, however,
should not affect the claim of this applicant. It is possible to
devise a simple procedure whereby the applicant may vote, and
the necessary arrangements may be made in advance of elec
tion day without difficulty. Granting him the injunction would
not enable other inmates to vote, but no unfairness is thereby
worked upon the others. The applicant should not be denied
relief because he chose to assert his claim when others did not
do likewise.
It seems that when an applicant's case is a very strong one
and the balance of convenience is heavily in his favour, the
objective of preserving the status quo is not an important factor
in the decision as to whether an interlocutory injunction should
be granted. Even if this is incorrect, though, in this case the
status quo must be taken to incorporate the law as it existed at
the date of the claim—i.e., it must be taken to encompass
section 3 of the Charter. That provision elevated the right to
vote above rights found in ordinary legislation. Also, the Chart
er was intended to make, and did make, substantive changes in
some areas.
The applicant was not guilty of any undue delay in com
mencing proceedings. The respondents argued that the appli
cant should have launched an action for a declaration two years
ago, thus allowing the courts to make a final determination
regarding his rights under the Charter and the Elections Act,
rather than waiting until the eve of an election and seeking
interlocutory relief—which form of relief is, according to the
respondents, inappropriate in this case. However, the respond
ents as well could have initiated proceedings within the last two
years to obtain clarification of the issue. Given the statement
that the question of inmate voting has been under active policy
consideration for four years, it is difficult to accept that the
respondents were caught unprepared by the applicant's claim,
or that an enormous burden was imposed upon them by virtue
of their being required to provide evidence on fairly short
notice. There is no evidence that the applicant was trying to
avoid the onus of proof which he would have to discharge in
order to obtain a final remedy. Certainly, a final decision upon
the validity of paragraph 14(4)(e) can be arrived at only via the
normal trial process; however, this does not mean that the
present case is one in which an interlocutory injunction, which
will be based upon a non-final decision, is necessarily
inappropriate.
The respondents objected that granting the injunction would,
as a practical matter, settle the issue in this case finally; but an
interlocutory injunction often has this effect, and such a pros
pect is not a valid reason for refusing an injunction.
Where the question is the validity of legislation, consider
ations pertaining to the balance of convenience will often rule
out an injunction. This, however, is a case in which the balance
is completely in the applicant's favour. Furthermore, the denial
of a constitutionally guaranteed right is a grave injustice, and
so must be prevented.
Granting the interlocutory injunction does not amount to a
rewriting of the law. The decision of the Court will operate only
as between the parties, and does not determine the broader
issue of the validity of paragraph 14(4)(e). In any event, both
paragraph 14(4)(e) and section 3 are law, and to choose one
over the other is not to rewrite the law.
The relief requested herein may be granted pursuant to the
Court's general jurisdiction in respect of mandatory injunc
tions. It is therefore unnecessary to decide whether section 24
of the Charter is applicable where an interlocutory remedy is
sought.
CASES JUDICIALLY CONSIDERED
APPLIED:
American Cyanamid Co. v. Ethicon Ltd., [1975] A.C.
396 (H.L.).
CONSIDERED:
Re Jolivet, et al. (1983), 7 C.C.C. (3d) 431 (B.C.S.C.);
Morgentaler et al. v. Ackroyd et al. (1983), 42 O.R. (2d)
659 (H.C.).
COUNSEL:
Fergus J. O'Connor for applicant.
Duff F. Friesen, Q.C. and Seymour Mender
for respondents Attorney General of Canada
and Solicitor General of Canada.
E. A. Ayers for respondent Chief Electoral
Officer of Canada.
SOLICITORS:
Correctional Law Project, Faculty of Law,
Queen's University, Kingston, Ontario, for
applicant.
Deputy Attorney General of Canada for
respondents Attorney General of Canada and
Solicitor General of Canada.
Borden & Elliot, Toronto, for respondent
Chief Electoral Officer of Canada.
The following are the reasons for order ren
dered in English by
REED J.: This is a motion for an interlocutory
injunction, mandatory in nature, requiring the
Chief Electoral Officer and the Solicitor General
(or their subordinates) to enable the applicant to
exercise his right to vote in the September 4, 1984,
federal election. The motion is brought pursuant to
an order of the Associate Chief Justice, dated
August 22, 1984, which dismissed an application
by way of motion for an order of mandamus. The
Associate Chief Justice's order was based on the
fact that the applicant, in proceeding by way of
motion, had chosen the wrong procedural route.
The order expressly noted that it was without
prejudice to the right of the applicant to reframe
his claim: to proceed by way of statement of claim
and move for interlocutory relief within the con
text of such action.
The applicant's claim is that section 3 of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,.
Canada Act 1982, 1982, c. 11 (U.K.)] accords him
a constitutional right to vote:
Democratic Rights
3. Every citizen of Canada has the right to vote in an election
of members of the House of Commons ....
He claims that his right to vote is being
infringed by the application of paragraph 14(4)(e)
of the Canada Elections Act [R.S.C. 1970 (1st
Supp.), c. 14]:
14....
(4) The following persons are not qualified to vote at an
election, and shall not vote at an election:
(e) every person undergoing punishment as an inmate in any
penal institution for the commission of any offence;
The applicant, having been convicted of a crimi
nal offence, is a prisoner in a federal institution,
Joyceville Penitentiary, near Kingston, Ontario. In
the normal course of things he anticipates being
released in January, 1985. He considers Ancaster,
Ontario, his home. At his request, his name was
given to the enumerators and placed on the list of
electors for the electoral district of Hamilton-
Wentworth.
The issues to consider, as with all requests for
interlocutory relief, are: (1) the strength of the
applicant's case; (2) the balance of convenience;
(3) the maintenance of the status quo; and (4) the
conduct of the parties.
Strength of applicant's case
It is clear that Canadian law has now accepted
the American Cyanamid' test as that applicable in
requests for interlocutory injunctions:
The court no doubt must be satisfied that the claim is not
frivolous or vexatious; in other words, that there is a serious
question to be tried.
In this case even if the test set out in some of the
earlier jurisprudence (the requirement of a strong
prima facie case) were still applicable I think the
applicant would have met it. But, he certainly has
met the test of "a serious question to be tried."
The applicant, as a Canadian citizen, is clearly
given a constitutionally protected right to vote by
' American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396
(H.L.) at p. 407.
section 3 of the Charter. Prima facie, he has a very
clear right to the claim he asserts.
Is the strength of his case weakened, then,
because limitations on that right can be imposed?
Section 1 of the Charter allows limitations which
constitute:
1. ... reasonable limits prescribed by law ... demonstrably
justified in a free and democratic society.
The evidence before me was not of such a nature
that I could characterize it as weakening in a
significant way the applicant's prima facie case. I
will review that evidence.
An affidavit in support of the respondents' posi
tion stated:
I believe, as a result of my experience in security matters
affecting the CPS, that allowing every inmate to vote would
constitute a threat to good order, security and administration of
the federal penal institutions.
It is hard to accept that security reasons could
constitute justification for denying inmates the
right to vote. The fact that other jurisdictions, for
example, Quebec, are able to provide such mech
anisms demonstrates that it is not unworkable,
either from an administrative or security point of
view. (I note that some jurisdictions deny the right
to vote on a selective basis, either when it is
expressly made part of the judge's sentence or in
relation only to certain very specific offences such
as election offences.) Also, paragraph 14(4)(e)
does not simply deny the vote to prisoners who are
security risks or prone to violence;- it is all-inclu
sive. Consequently, it is hard to characterize
paragraph 14(4)(e) as "a reasonable limit . ..
demonstrably justified" on the ground that it is
necessary for security reasons.
The affidavit also states:
Due to the security requirements [of the penal institutions] I
am of the opinion that the inmate population's ability to
assemble and to receive and exchange information with candi
dates and their peers would be limited to the extent that some
inmates could have to exercise the right to vote in the absence
of any real opportunity to truly participate in the rest of the
electoral process.
In this regard the decision of the British Columbia
Supreme Court in Re Jolivet, et al. (1983), 7
C.C.C. (3d) 431 (B.C.S.C.), was relied upon. In
that decision it was held that the right to vote as
guaranteed by section 3 of the Charter means
more than the right to cast a ballot. The Court
held (at pages 434-435):
It means the right to make an informed electoral choice
reached through freedom of belief, conscience, opinion expres
sion, association and assembly—that is to say with complete
freedom of access to the process of "discussion and the inter
play of ideas" by which public opinion is formed. Denial by the
State of the freedoms necessary for the making of a free and
democratic electoral choice involves denial also of the sort of
right to vote contemplated by the Charter.
While I accept that this is generally so, the right
to vote and the right to freedom of association,
belief, conscience and expression, etc. are found in
separate sections of the Charter. It would appear
that they were thought of as being distinct rights.
Consequently I do not think that because some of
a prisoner's rights must necessarily be curtailed
(e.g.: the freedom of association, of expression, the
right to be a candidate for election) this justifies
curtailing the whole spectrum. It seems to me
there is a logical fallacy somewhere in that
argument.
Another affidavit filed in support of the
respondents' position states:
THAT I am employed as a senior policy analyst in the Criminal
Justice Policy Directorate of the Policy Branch of the Ministry
Secretariat of the Department of the Solicitor General, and, as
such, am responsible for providing policy advice to the Deputy
Solicitor General on criminal justice issues.
THAT I have been in this position for the past four years, during
which time, I have examined in depth the concept of inmate
voting.
THAT I further believe that there are experts in the field of
criminology and law who have conducted studies on the desira
bility of retaining the type of sanction imposed by section
14(4)(e) of the Canada Elections Act, and given time to
contact these experts, the Crown might be able to lead evidence
which would be of benefit to the court in determining whether
or not section 14(4)(e) of the said Act is a reasonable limita
tion .... [Underlining added.]
I was struck by the tentative nature of these
assertions. I could not conclude that they signifi
cantly weaken the applicant's case.
One last argument in this regard needs to be
considered. The affidavit material demonstrates
that limitations on the right to vote of prisoners
exist in many countries. I could not conclude,
however, that this was, by itself, evidence of a
"reasonable limit ... demonstrably justified". It
may be no more than a vestige of that period in
our history when a convicted person lost all legal
status—it may be no more than a remnant of that
historical situation. (I note that some of these
countries still deny the vote to undischarged
bankrupts.)
Balance of Convenience
It seems clear that the balance of convenience is
all in the applicant's favour in this case. His claim
relates only to his right to vote. He is not claiming
on behalf of all inmates. Counsel for the respond
ents argued that it was somehow unfair to grant
him the relief sought because it gave him a right
denied to all other inmates. I do not think so: the
applicant chose to press his case, so to speak;
others did not. There may be many people who are
left off the voters' list who never complain or
whose names are on the voters' list but they are
not concerned enough to exercise their democratic
right. I do not think Mr. Gould's claim should be
rejected because he chose to assert his claim while
others did not.
I recognize that had the claim been on behalf of
a great many inmates the balance of convenience
might have tipped in the other direction because it
would simply be impossible to set up the ma
chinery before September 4 for providing all
inmates (or a large number) with the right to vote.
But, I do not think that consideration should affect
Mr. Gould's claim. The affidavit filed by Mr.
Hamel, the Chief Electoral Officer, makes it very
clear that it was entirely possible to take the
necessary steps to meet Mr. Gould's claim before
September 4, with no difficulty. In colloquial
terms the respondents have virtually "nothing to
lose" by an order granting the applicant the
remedy.
Allowing Mr. Gould to vote would not require
that he be escorted by security officers to the
polling booth in Hamilton-Wentworth, as was
argued before me. A simple procedure can be
devised for either allowing Mr. Gould to vote by
proxy (as his counsel suggested) or by collecting a
ballot from him perhaps in advance of election
day, and having it transmitted to the appropriate
poll. 2
In considering then, the balance of convenience,
little obligation would be imposed on the respond
ents (less than is often the case in interlocutory
injunctions not characterized as of a mandatory
nature) while the loss to the applicant would be
the denial of at least a prima facie constitutionally
guaranteed right.
Status Quo—Conduct of the Parties
It remains to consider some arguments of the
respondents which might be described as relating
to the preservation of the status quo and the
conduct of the parties.
My reading of the jurisprudence does not lead
me to believe that the "preservation of the status
quo" is an element that weighs heavily when the
strength of the applicant's case and the balance of
convenience are heavily in favour of the applicant.
In any event, even if it does, I think that in this
case the status quo must be assessed in the light of
the law as it exists at the date of the applicant's
claim—that is, in the light of the existence of
section 3 of the Charter of Rights. I do not think
the status quo should be determined by reference
to the situation which existed prior to the enact
ment of that legislation. Counsel for the respond
ents argues that the right to vote is not a new
right, that it has always existed and, therefore,
there is no change of the status quo by the Chart
er. This may be so in many instances and in
general terms but prior to the enactment of the
Charter there was no constitutionally guaranteed
right of citizens to vote; there was no elevation (so
to speak) of that right above others found in
2 The mechanism agreed upon by counsel for the Chief
Electoral Officer and by counsel for the applicant was to
require the returning officer in the electoral district of Hamil-
ton-Wentworth to accept a proxy vote from Mrs. Thea Misen-
er, the applicant's one-time guardian.
ordinary legislation. Also the Charter did and was
intended to make changes in some areas.
Another argument made is that the applicant
unduly delayed in seeking a declaration as to his
rights, that he could have started a declaratory
action two years ago to have the issue finally
determined by the courts but that he chose not to
do so but to wait until the eve of an election and
seek interlocutory relief. (As noted above the inter
locutory relief was sought because of procedural
barriers not because the applicant was attempting
to avoid an examination of the issue by way of
final decision.) Part of the respondents' argument
on this point is that the instant case is inappropri
ate for an interlocutory injunction because a deci
sion as to whether paragraph 14(4)(e) of the Elec
tions Act is a demonstrably justifiable limitation
on the right to vote, is one that can only be made
after hearing lengthy evidence and careful con
sideration. I agree that a final determination of the
issue must proceed on that basis. But this decision
in this case is not a final decision respecting that
issue—it is based only on the conclusion that the
applicant has demonstrated a prima facie case. I
note also that the affidavit filed in support of the
respondents' position indicates that the question of
inmate voting has been under active policy con
sideration by the respondents for four years. I find
it hard therefore to accept the argument that the
applicant's claim caught the respondents in an
unprepared state or that it creates an enormous
burden on the respondents by putting them in a
position of having to bring forward, on fairly short
notice, evidence respecting the limitation on voting
rights. I was particularly struck by the fact that
the aforementioned affidavit indicated that the
issue had been under study for four years yet the
conclusions it was able to come to respecting a
justification for the limitation on voting rights
were very tentative.
There is no doubt that the question of whether
or not paragraph 14(4)(e) is a demonstrably jus
tifiable limitation is one that will have to be finally
determined in the normal trial process but I do not
think the applicant should be denied his remedy
because he did not start a declaratory action to
have the issue clarified some time within the previ
ous two years. The respondents, equally, could
have moved within that two-year time period for
clarification from the courts as to the interpreta
tion of section 3 of the Charter and paragraph
14(4)(e) of the Canada Elections Act. There is no
evidence that the applicant delayed unduly or that
the applicant was trying to avoid the burden of
proof that would rest on him where a remedy of a
final nature is sought. If there were, it would
clearly be a case in which an interlocutory injunc
tion should be denied.
The respondents also argued that an interlocuto
ry injunction was not available in this case because
of what I will call "the nature of the case". These
arguments were generally that an injunction was
not appropriate because: (1) an interlocutory
injunction would determine the matter—it not
being likely that the applicant would pursue his
claim for declaratory relief; (2) the validity of
federal legislation was in issue; and (3) giving a
remedy would involve the Court in rewriting the
law.
With respect to the first case, it is often the
nature of interlocutory injunctions that as a practi-
cal•matter, they finally determine the issue in the
case. My reading of the jurisprudence has not led
me to the conclusion that this is a reason for a
court to back away from granting one where it
considers it just to do so. With respect to the
second point I was not referred to any case which
said that interlocutory injunctions should not be
granted where the validity of legislation was in
issue. Counsel for the respondents referred me to
Morgentaler et al. v. Ackroyd et al. (1983), 42
O.R. (2d) 659, where Mr. Justice Linden of the
Ontario High Court said [at page 6681:
... the balance of convenience normally dictates that those who
challenge the constitutional validity of laws must obey those
laws pending the court's decision .... This does not mean,
however, that in exceptional circumstances this court is pre
cluded from granting an interim injunction to prevent grave
injustice, but that will be rare indeed.
I agree that balance-of-convenience consider
ations, often, probably normally, will dictate that
interlocutory injunctions are inappropriate where
the issue is the validity of legislation. But, as noted
above, in this case that is not so. The balance of
convenience is all on the applicant's side. There
will probably be few instances, when the attack on
the constitutionality of a statute is concerned, in
which this will be so. But this is one. Accordingly,
I do not think I have to decide whether the denial
of the right to vote is a "grave injustice" or not.
But, if I had to so decide, I would hold that the
denial of a constitutionally guaranteed democratic
right is a grave injustice.
Nor have I accepted the respondents' argument
that in this case to give the applicant a remedy is
to rewrite the law.
A decision in this case only operates as between
the parties; it does not determine the broader
fundamental question as to the status of paragraph
14(4)(e) of the Elections Act in relation to section
3 of the Charter. That question undoubtedly needs
to be determined and I would assume it will be,
prior to any subsequent federal election (perhaps
by way of reference). In any event an order of the
nature sought by the applicant is not a rewriting of
the law. The law exists in section 3 of the Charter.
The choice for the Court is either to apply the
Charter or to apply the Canada Elections Act.
Both are equally law and in choosing one over the
other there is no more rewriting of the law than if
the "other" was chosen over the "one".
Section 24 of the Charter was cited to me as
applicable:
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
Given the time available for making a decision
in this case, a thorough argument as to whether
the section was applicable in the case of interlocu
tory relief was not heard. It may very well be, on a
careful examination of the principles involved. But,
counsel for the respondents argues it is not, coun-
sel for the applicant argues it is. In any event, I
make no finding on that point since I think it is
within the Court's jurisdiction to make the order
claimed as part of its general jurisdiction with
respect to mandatory injunctions. An order in this
case to the returning officer requiring him (her) to
accept a proxy vote is not unlike other mandatory
orders either to public officials or private individu
als to either perform or cease performing some act.
I note that in the Ackroyd case (supra) the Court
did not feel it needed to rely on section 24 for
jurisdiction, although it did not deal with that
issue.
For all the above reasons I think this is an
appropriate case in which I should exercise my
discretion to grant the relief claimed by the appli
cant. An order will issue accordingly.
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