By: Drew Yewchuk

PDF Version: Bribery by Dry Meat and the Legal Status of Jokes

Case Commented On: Gullion v Gottfried, 2018 ABQB 531 (CanLII)

Gullion v Gottfried is the second reported decision addressing an application for judicial review alleging bribery under the Local Authorities Election Act, RSA 2000 c. L-21, and is also the second decision in which the allegations are unsuccessful (at para 24). The applicant, John Garry Gullion, alleged that the respondent, Everett Gottfried bribed voters in a local election contrary to section 116 of the Local Authorities Election Act. Gullion and Gottfried are second cousins (at para 11).

The bribery allegation relates to a Facebook post Gottfried put up the morning of the election reading:

Cant wait for this day to be over so i know the fate of my future. Hoping for the best for our community and people get in for the right reasons…..On a funny note Glen Gullion said a bag of dry meat for everyone who votes for me today lol have a good day everyone! (at para 12)(sic)

Section 119 of the Local Authorities Election Act disallows the use of affidavit evidence, and requires oral testimony in the context of a quo warranto application (a “by what warrant?” application for a judicial review challenging the authority to hold public office, used here to challenge an election result). Guillon and Gottfried each gave oral evidence. No other witnesses were called (at para 8).

There was no dry meat given to any elector. Gottfried did not direct or authorize Glen Gullion to give dry meat to any elector on his behalf. Justice Neilson accepted that Gottfried posted the comment as an ill-advised joke, and that the people who responded to it understood it as a joke (at paras 14-16).

Section 116(a)(i) and (b)(i) of the Local Authorities Election Act reads:

116   A person commits the offence of bribery

(a)    who directly or indirectly by himself or herself or by any other person on his or her behalf,

(i)    gives, lends or agrees to give or lend or offers or promises money or valuable consideration, or gives or procures or agrees to give or procure or offers or promises an office, place or employment to or for an elector or to or for a person on behalf of an elector or any person, in order to induce an elector or a person to vote or to refrain from voting at an election, or …

Counsel for Guillon argued that the bribery provision in section 116(a)(i) does not use the word “intention” and is a strict liability offence not requiring any mens rea (at para 27). Justice Neilsen rejected that argument, and found that

in interpreting s 116(a)(i), although the word “intention” is not included in the wording, I find that it is nonetheless a requisite element for a conviction for bribery, in that there must have been an intention “to induce an elector or a person to vote or to refrain from voting at an election. (at para 30)

As noted, Justice Neilsen found the post “was intended merely as a joke,” mens rea was not established and the application was dismissed (at paras 31 and 32).

COMMENTARY

Justice Neilsen dismissed the application because he found that Gottfried had no intention to bribe anyone when he made the post, and therefore lacked the required mens rea (at para 32). I do not take issue with Justice Neilsen’s finding that Gottfried lacked the mens rea element, or that the Local Authorities Election Act establishes bribery as a mens rea offence.

However, I believe Gottfried was also entitled to his acquittal for not having committed the actus reus. The case included, in passing, a finding that no one considered the Facebook post to be an actual offer of a bribe (at para 15-16). The Facebook post was a joke and it appeared everyone understood it as such: Gottfried was pretending to give notice of an offer made by Guillon, his rival in the election, offering an illegal bribe in a public forum directly against Guillon’s own interest. The Facebook post appears to make an offer or promise that would fit the requirements of the bribery offence, but those who read it understood that it made no offer nor gave notice of an offer. The Facebook users who replied to the post understood that no bribe offer existed, the Returning Election Officer seemed to have understood that no bribe offer existed (at para 17), and any sufficiently advanced English speaker would understand that there was no actual bribe.

The actus reus of the kind of bribery at issue here requires making or giving notice of an offer. That is a speech act – an action that is performed through the appropriate use of words, spoken or written in an appropriate context. They were not used in that manner here: the words and context make it clear that Gottfried only made a joke about bribery. What differentiates a joke from an actual offer or informative statement is a very tricky thing to pinpoint though – one that a U.S. court famously touched on in Leonard v. Pepsico, Inc., 88 F. Supp. 2d 116, (S.D.N.Y. 1999), where Leonard attempted to accept an offer “evidently done in jest” from a Pepsi advertisement to effectively buy a $23 million Harrier jet for $700,000. Guillon v Gottfried almost forced a Canadian court to deal with the issue of what makes a joke a joke – but the simple answer to the mens rea question allowed Justice Neilson a simpler way to resolve the case. The take away from the case is that unless you are invested in arguing about speech acts, philosophy of language, and jokes in front of a judge, it is unadvisable to make jokes based on crimes that can be committed by words alone, such as bribing, threatening, and harassing. Most jokes stop being funny when you have to explain them, and they are probably even less funny when they have to be explained to a judge.

This post may be cited as: Drew Yewchuck, “Bribery by Dry Meat and the Legal Status of Jokes” (August 2, 2018), online: ABlawg, http://ablawg.ca/wp-content/uploads/2018/08/Blog_DY_Guillion_July2018.pdf

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