Zoltan Szoboszloi (Applicant)
v.
J. M. Hamel, Chief Returning Officer of Canada,
and Terrence G. Mott, Returning Officer of Elec
toral District of Spadina (Respondents)
Trial Division, Noël A.C.J.—Toronto, October
23; Ottawa, October 25, 1972.
Mandamus—Canada Elections Act—Nomination paper
rejected—No merit in application—Mandamus refused—
Canada Elections Act, R.S.C. 1970, c. 14 (1st Supp.), s.
14(1)(3), 20, 23(6).
S, who was neither a Canadian citizen nor a British
subject, filed a nomination paper as a candidate for the
federal election for an electoral district in Ontario. In the
nomination paper filed he had stated he was not a Canadian
citizen. The returning officer refused to accept the nomina
tion paper.
Held, dismissing an application for mandamus, even
though S did not deny in his nomination paper that he was a
British subject, he was not in fact a British subject. Man-
damus is only to be granted in clear cases, and it appears
clearly that he is not entitled to have his nomination papers
accepted for filing.
MANDAMUS application.
The applicant in person.
E. A. Bowie for respondents.
NOEL A.C.J.—This is an application by
Zoltan Szoboszloi, of Toronto, Ontario, for an
order of mandamus requiring the respondents,
J. M. Hamel, the Chief Returning Officer of
Canada, and Terrence G. Mott, returning officer
of the electoral district of Spadina, Ontario, to
accept or direct the proper officer or officers to
accept the nomination paper of the applicant as
a candidate for the federal election in the elec
toral district of Spadina.
Terrence G. Mott, the returning officer for
the electoral district of Spadina, charged with
the acceptance of nomination papers for filing
under the Canada Elections Act, 1970 R.S.C.,
c. 14 (1st Supp.) stated in his affidavit that on
October 10, 1972' he refused to accept the
nomination paper of the applicant for filing
because the latter had altered his nomination
paper on Form 27 by drawing a line through the
following words "I am a Canadian citizen (or) I
am a British subject, other than a Canadian
citizen, was qualified as an elector on June 25,
1968 and have not ceased to be ordinarily resi
dent in Canada since that date". This alteration,
according to Mr. Mott had been initialed by
what appeared to be Mr. Szoboszloi's initials.
At the hearing, the applicant produced a
number of exhibits, of which Exhibit 1, which is
the nomination paper which the applicant says
he presented to the returning officer on October
10, 1972 and which was refused by the return
ing officer. From this document it appears that
the applicant did not draw a line through the
words: "I am a Canadian citizen (or) I am a
British subject other than a Canadian citizen,
was qualified as an elector on June 25, 1968
and have not ceased to be ordinarily resident in
Canada since that date". He indeed typed in, or
caused to be typed in, over the said words "I
am" and "a Canadian citizen" the word "not"
and added after the word "citizen" the follow
ing: "because I refuse to swear allegiance to a
foreign regent". In so far as the paragraph "I
am a British subject, other than ..." is con
cerned, it was not altered in any manner.
The applicant, however, who is a Hungarian
born citizen, has travelled to a number of coun
tries since his birth and has resided in Canada
since 1951. He is not yet, however, a Canadian
citizen as he has persistently refused to swear
allegiance to the Queen, as indicated in his
nomination paper. This gentleman also stated
that he was not a British subject and that he had
no country.
The returning officer states in his affidavit
that he refused to accept the applicant's nomi
nation paper for filing on October 10, 1972,
because of the alteration described in paragraph
3 of his affidavit, i.e., that a line had been
drawn through the words "I am a Canadian
citizen" and the paragraph dealing with the
statement "I am a British subject". Obviously,
from the nomination form filed by the applicant
as Exhibit 1, which appears to be the one pre
sented to the returning officer on the above
date for filing (as it was not contested by the
respondents) it does not appear that a line was
drawn but rather, as we have seen, that the
applicant merely stated that he was not a
Canadian citizen. The mistake made by Mr.
Mott, if such is the case, is understandable in
that upon refusing to accept the applicant's
nomination paper, it was returned to the appli
cant and when his affidavit was signed he had
nothing to rely on but his memory and appar
ently his recollection was mistaken at the time.
This inaccuracy, however, in my view, should
have no effect on the decision as to whether the
applicant was entitled to file his nomination
paper, which is what he is seeking to do by the
present proceedings. I say this because it
appears from applicant's own Exhibit 1 that he
was not, at the time, a Canadian citizen, nor on
his own admission, was he a British subject.
He, therefore, did not qualify on October 10
and his nomination paper should not have been
accepted for filing at that time had the applicant
responded truthfully to paragraph 1 of his state
ment on Form 27 by saying that he was not a
British subject.
Section 23(6) of the Canada Elections Act,
1970 R.S.C., c. 14 (1st Supp.) states that "The
returning officer shall not refuse to accept any
nomination paper for filing by reason of the
ineligibility of the candidate nominated unless
the ineligibility appears on the nomination
paper."
Section 20 of the Act says that:
20. Subject to this Act, any person who, on the date he
files his nomination paper at an election, is qualified as an
elector or deemed to be qualified as an elector by subsec
tion 14(3) may be a candidate at the election.
Sections 14(1)(a) and (b) and 14(3)(a) and (b)
read as follows:
14. (1) Every man and woman who
(a) has attained the age of eighteen years, and
(b) is a Canadian citizen,
is qualified as an elector.
(3) Every British subject, other than a Canadian citizen,
who
(a) was qualified as an elector on the 25th day of June
1968, and
(b) has not, since that date, ceased to be ordinarily resi
dent in Canada,
is, during the period commencing on the 26th day of June
1970 and terminating five years from that day, deemed to
be qualified as an elector.
Although technically it could be said that in
view of the fact that the paragraph which deals
with the British subject status had not been
struck out, the returning officer should have
accepted the applicant's nomination paper, such
an acceptance would have been, however, on
the basis of what has been established by the
applicant himself, as a false statement, as he is
not a British subject and never has been one.
Furthermore, the applicant did not rely on the
fact that his ineligibility under section 23(6) of
the Canada Elections Act did not appear on his
nomination paper. His main argument was that
he should not be precluded from running as a
candidate because he refuses to swear alle
giance to Elizabeth II, whom he calls a foreign
regent, as Queen of Great Britain.
He also took the position that the British
North America Act cannot be considered as a
valid legal document because it was not ratified
in Canada but by what he terms the "infamous
British Parliament". From this, he concludes
that the Canada Elections Act which requires
one to be a Canadian citizen or a British subject
in order to run as a candidate is also invalid as
he says it was legislation passed by a Parliament
which owes its existence to what he terms the
invalid British North America Act.
His argument in this respect was considerably
more involved and may I add more muddled
than that, but this is the gist of his attack. I can,
of course, find no merit to any of the attacks
launched against the legislation involved herein
and, consequently, they are rejected.
Mandamus is only to be granted in clear
cases and as it appears clearly from the appli
cant's own evidence that he has no standing to
attack the legislation involved herein, that he
has no right to secure the performance of a
public legal duty by the respondents and that he
is not entitled to have his nomination papers
accepted for filing, his application for man-
damus will therefore be dismissed. There will
be no costs.
I Paragraph 2 of this affidavit mentioned the 23rd of
October 1972 as the date upon which the applicant attempt
ed to file his nomination paper on Form No. 27. This date,
however, was a mistake as the correct date, as it appears
from the applicant's Exhibit 1, his nomination paper (form
27) was October 10, 1972 and upon motion being made by
counsel for the respondent, the proper date was allowed to
be inserted.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.