Date: 20120719
Dockets: T-616-12
T-619-12
T-620-12
T-621-12
T-633-12
T-634-12
T-635-12
Citation:
2012 FC 916
Toronto, Ontario, July 19, 2012
PRESENT: Madam Prothonotary Milczynski
BETWEEN:
Docket: T-616-12
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LEEANNE BIELLI
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Applicant
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and
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ATTORNEY GENERAL OF CANADA, MARC MAYRAND (CHIEF ELECTORAL OFFICER), URMA ELLIS (RETURNING OFFICER FOR DON
VALLEY EAST), JOE DANIEL,
YASMIN RATANSI, MARY TRAPANI HYNES, AKIL SADIKALI, RYAN KIDD
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Respondents
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AND BETWEEN:
Docket: T-619-12
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SANDRA MCEWING AND
BILL KERR
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Applicants
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and
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ATTORNEY GENERAL OF CANADA, MARC MAYRAND (CHIEF
ELECTORAL OFFICER),
JOHANNA GAIL DENESIUK (RETURNING
OFFICER FOR
WINNIPEG SOUTH CENTRE), JOYCE BATEMAN, ANITA NEVILLE, DENNIS LEWYCKY, JOSHUA
MCNEIL, LYNDON B. FROESE,
MATT HENDERSON
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Respondents
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AND BETWEEN:
Docket: T-620-12
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KAY BURKHART
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Applicant
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and
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ATTORNEY GENERAL OF CANADA, MARC MAYRAND (CHIEF
ELECTORAL OFFICER),
DIANNE CELESTINE ZIMMERMAN
(RETURNING OFFICER
FOR SASKATOON-ROSETOWN-BIGGAR),
KELLY BLOCK, LEE
REANEY, VICKI STRELIOFF, NETTIE WIEBE
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Respondents
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AND
BETWEEN:
Docket: T-621-12
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JEFF REID
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Applicant
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and
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ATTORNEY GENERAL OF CANADA, MARC MAYRAND (CHIEF
ELECTORAL OFFICER),
LAUREL DUPONT (RETURNING OFFICER
FOR
ELMWOOD-TRANSCONA), JIM MALOWAY, ILONA NIEMCZYK,
LAWRENCE TOET, ELLEN YOUNG
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Respondents
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AND
BETWEEN:
Docket: T-633-12
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KEN FERANCE AND
PEGGY WALSH CRAIG
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Applicants
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and
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ATTORNEY GENERAL OF CANADA, MARC MAYRAND (CHIEF
ELECTORAL OFFICER),
DIANNE JAMES MALLORY (RETURNING OFFICER FOR NIPPISSING-TIMISKAMING), JAY
ASPIN, SCOTT
EDWARD DALEY, RONA
ECKERT, ANTHONY ROTA
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Respondents
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AND
BETWEEN:
Docket: T-634-12
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YVONNE KAKFA
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Applicant
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and
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ATTORNEY GENERAL OF CANADA, MARC MAYRAND (CHIEF
ELECTORAL OFFICER),
ALEXANDER GORDON (RETURNING
OFFICER FOR
VANCOUVER ISLAND NORTH), JOHN DUNCAN MIKE
HOLLAND, RONNA-RAE
LEONARD, SUE MOEN, FRANK MARTIN,
JASON DRAPER
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Respondents
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AND
BETWEEN:
Docket: T-635-12
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THOMAS JOHN PARLEE
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Applicant
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and
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ATTORNEY GENERAL OF CANADA, MARC MAYRAND (CHIEF
ELECTORAL OFFICER),
SUSAN J. EDELMAN (RETURNING OFFICER
FOR YUKON), RYAN LEEF, LARRY BAGNELL, KEVIN BARR,
JOHN STREICKER
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Respondents
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REASONS FOR
ORDER AND ORDER
Background - The Applications
[1]
The main applications comprising the within proceedings are
seven separate applications brought under section 524(1)(b) if the Canada
Elections Act, S.C. 2000, c.9, to contest the results of the May 2, 2011
federal general election in each of the seven respective ridings to which the
applications relate:
- Don Valley East
- Winnipeg South Centre
- Saskatoon-Rosetown-Biggar
- Elmwood-Transcona
- Nipissing-Timiskaming
- Vancouver Island North
- Yukon
[2]
The grounds for the applications are stated in an
essentially identical manner in each of the seven notices of applications, that
"during the course of the election, a person or persons unknown engaged in
fraudulent or corrupt or illegal activities and practices that affected the
result of the election in the riding by attempting to prevent electors from
voting in the election, or by inducing them to refrain from voting for a
particular candidate".
[3]
Specifically, the Applicants state that they received live
and/or automated telephone calls that:
(i)
represented the call as one from or on behalf of Elections
Canada;
(ii)
advising that there was a change in their polling station;
and
(iii)
misdirecting them to a non-existent polling station,
sometimes in an inconvenient or far away location.
[4]
Certain of the Applicants also allege that they received
telephone calls during the election campaign that were of an abusive or
harassing nature, designed to be linked (falsely) to a particular candidate
that the recipient of the call might have supported.
[5]
The Applicants allege that these live and automated (or
"robo") calls were not isolated incidents, errors or pranks, but part
of a deliberate, widespread and concerted campaign to manipulate, interfere
with or suppress the vote, with the intent of influencing the outcome of the
election in each of the ridings where this campaign was executed. The
Applicants also allege that the recipients of these calls were specifically
targeted to receive them. They state that only supporters of the Liberal,
New Democratic and Green parties received the fraudulent calls, after having
responded to earlier calls canvassing their support for the Conservative Party
of Canada ("CPC"), and where the recipient of the call indicated that
they would not be supporting the CPC candidate in their riding.
Issue on Motions and Summary of Disposition - Motions
Dismissed
[6]
The seven Respondents who were the successful CPC
candidates on May 2, 2011 and are the current sitting Members of Parliament,
have each filed a motion to strike the application that relates to their
respective riding that is in issue. These motions are brought at this
preliminary stage, before all evidence has been filed, cross-examinations
conducted and a full record, including argument has been placed before the
Court and a hearing is conducted on the merits of the applications.
[7]
The Respondent MPs seek an exceptional remedy, but it is
one available under the Canada Elections Act to guard against abuses of
the ability to contest elections. Elections are the democratically
expressed will of the electorate and should not lightly be overturned. Nor
should the ability to contest elections be used for improper purposes, where a
candidate or elector simply disagrees with or does not like the result.
Applications brought under the Act can be struck and dismissed in a
summary way at any time, where the grounds for such motion have clearly been
made out.
[8]
In the case of the within motions and for the reasons
below, however, I am not satisfied that the applications should be struck at
this juncture.
[9]
The Respondent MPs submit on these motions that the
applications are frivolous and vexatious and on their face are fatally
flawed. They submit that the notices of application, as drafted, fail to
plead sufficient material facts to sustain a finding that in fact there was a
campaign of voter suppression, that any number of ballots were prevented from
being cast and that consequently, there could be no impact on the election
results in each of the ridings in issue, having regard to the margins of
victory of each of the Respondent MPs in their ridings. The Respondent
MPs also submit that the applications are a nullity on the grounds that they
were each commenced well beyond the thirty day time limit within which an
application can be commenced under the Canada Elections Act to contest
election results.
[10]
Notwithstanding these submissions, however, and wwhatever hurdles the Applicants may face on these applications as
identified by the Respondent MPs on this motion, I cannot conclude that it is so
clear or without doubt that the applications will fail on those grounds so as
to lead to the applications being struck at this stage. It is
not a certainty that the notices of application, as drafted, are so
fatally flawed that no allegation could ever be proven or remedy
granted. The issues and objections raised by the Respondent MPs are better
raised and argued on a full record at the hearing of the applications on
their merits.
[11]
Far from being frivolous or vexatious, or an obvious abuse,
the applications raise serious issues about the integrity of the
democratic process in Canada and identify practices that if proven, point
to a campaign of activities that would seek to deny eligible voters their right
to vote and/or manipulate or interfere with that right being exercised
freely - all of which if permitted to escape even the prospect of judicial
scrutiny, could shake public confidence and trust in the electoral process and in
those who in good faith stand for public office.
[12]
This is not to say that every application that is
ever filed that alleges fraudulent, corrupt or illegal activity
should survive a motion to dismiss and proceed to a hearing. The Court on
a motion to strike must be vigilant so as to not permit the abusive or
improper casting of doubt on the integrity of the electoral process.
Permitting an obviously frivolous and vexatious application to proceed itself
diminishes the electoral process. An application to set aside election results
must be brought in good faith, on grounds that are clear and based on a
reasonable foundation. Accusations and bare assertions will not
sustain an application to annul the results of an election.
[13]
In the within applications, the allegations of voter
suppression and an organized campaign of fraudulent and
harassing telephone calls, particularly on the scale alleged, has never been
the subject of an application under section 524(1)(b) of the Canada
Elections Act. Despite considerable jurisprudence about electoral
irregularities, the cases generally deal with irregularities at polling
stations, the eligibility of electors or the propriety or validity
of ballots that are "in the box". Despite
the able argument of counsel for the Respondent MPs, it cannot
be concluded at this stage of the proceedings that the same approach, test
or evidentiary requirements that apply in those types of cases, apply in
the same way in the circumstances of the within applications. It has not
yet been determined in a case like the within applications – (1) how to ascertain
the true effect of fraudulent calls and/or determine what votes if any,
did not make it "into the box", or (2) how to evaluate whether or how
the fraudulent calls had an impact on the results of the election. This
is a case of first instance, and it is not a foregone conclusion how a court
will approach such issues on the merits.
[14]
The Applicants have set out their allegations of
wrongdoing within the scope of section 524(1) (b) and have identified
and/or set out in their material the evidence they intend to adduce to
prove the allegations of fraudulent, corrupt and illegal practices,
and their impact on the election results. The admissibility and
sufficiency of this evidence ought not to be determined on a motion to strike –
particularly in light of the Canada Elections Act requirement that the
applications be determined in a summary way and without delay. It is
a determination properly left to the hearing on the merits.
[15]
With respect to whether the seven applications were
commenced out of time, this is an issue that requires a full evidentiary
record. It cannot be concluded at this juncture simply on the
basis of inference and argument that the Applicants as a group or any
of them, sat on their rights until after the time for bringing
the application had expired. It is an open and unresolved issue at
this stage, whether the applications were commenced within 30 days after
the later of the day the election results were certified and the day on which
the Applicant(s) first knew or should have known of the occurrence
of the alleged fraud, or corrupt or illegal practice. What the
individual Applicants knew or should have known cannot be determined on what is
before the Court on this motion and requires their evidence and
cross-examination for a finding of fact to be made in this regard.
Legislative Framework
Canada Elections Act
Means of contestation
522.
(1) The validity of the election of a candidate may not be contested otherwise
than in accordance with this Part.
Contestation of election
524. (1) Any
elector who was eligible to vote in an electoral district, and any candidate in
an electoral district, may, by application to a competent court, contest the
election in that electoral district on the grounds that….
(b) there were irregularities, fraud
or corrupt or illegal practices that affected the result of the election;
Rules of procedure
525. (3) An application shall be dealt with without delay and in
a summary way. The court may, however, allow oral evidence to be given at the
hearing of the application in specific circumstances;
Time limit
524(1)
(b) must be filed within 30 days after the later of
(a)
the day on which the result of the contested election is published in the Canada
Gazette, and
(b)
the day on which the applicant first knew or should have known of the
occurrence of the alleged irregularity, fraud, corrupt practice or illegal
practice
Dismissal of application and
Court Decision
531. (1) The court may at any time dismiss an application if it
considers it to be vexatious, frivolous or not made in good faith.
(2) After hearing the application, the court may dismiss it
if the grounds referred to in paragraph 524(1) (a)
or (b), as the case may be, are not established and,
where they are established, shall declare the election null and void or may
annul the election, respectively.
Appeal
532.
(1) An appeal from a decision made under subsection 531(2) lies to the Supreme
Court of Canada on any question of law or fact, and must be filed within eight
days after the decision was given.
Procedure
(2) The
Supreme Court shall hear the appeal without delay and in a summary manner.
Applicable Test on Motion to Strike under Canada Elections Act
[16]
A motion to strike an application commenced under
section 524(1)(b) of the Canada Elections Act is brought
pursuant to section 531(1) of the Act, which makes clear that the
court may at any time dismiss an application that it considers to be vexatious,
frivolous or not made in good faith. An application to
contest an election under section 524(1) (b) of the Canada Elections Act
is not an application for judicial review brought under the section 18.1 of the
Federal Courts Act. It is also not an action, governed by
the Federal Court Rules relating to pleadings and the conduct of an
action.
[17]
Accordingly neither the test to strike an application under
section 18.4 of the Federal Courts Act nor the test to strike an action
under Rule 221 of the Federal Courts Rules strictly apply to the within
motions brought under the Canada Elections Act, but they do inform the
analysis as to when and on what basis or grounds it is appropriate for the
Court to extinguish a proceeding at an early stage. The analysis and cases
considering the meaning of “scandalous, frivolous or vexatious” under Rule
221(c)
of the Federal Courts Rules are particularly
helpful. Actions may be dismissed where:
(i)
The statement of claim is so deficient that the opposing party does not
know the case to meet or make full answer and defence;
(ii)
The statement of claim does not plead sufficient material
facts so as to sustain a cause of action; and/or
(iii)
The claim is so clearly futile that it is “plain and
obvious” that it cannot succeed.
[18]
In the within case, the Court must review the notice of
applications and determine on the face of the applications, whether the
Respondent MPs can understand the allegations being made, whether there is any
complaint or allegation that if proven, could lead to the remedy sought, or
whether an application is clearly vexatious or frivolous, or not brought in
good faith. Such finding may be made in cases where the pleading is abusive,
scandalous or wholly lacking in material facts, containing only bare
assertions, conclusions of law or bald statements or argument.
[19]
In the within applications, I agree with the Respondent MPs
that the Applicants must at a minimum set out in their Notice(s) of
Application:
(i)
that there was conduct which if proven, would constitute an
“irregularity, fraud, corrupt practice or illegal practice;
(ii)
that
the alleged conduct “affected the result of the election” in each of the
challenged ridings; and
(iii)
that
the impact or “affect” on the election in the riding was material – in the
sense that election result would have been different but for the alleged
conduct.
[20]
The
application of this test, requiring a proceeding to be “clearly futile” or
“plain and obvious” to be without merit, is consistent with the approach taken
in other cases where statutes provide for the early dismissal of applications
on grounds that they are “scandalous, frivolous or vexatious”. Appropriate
reference is made to test of striking of actions under Rule 221 of the Federal
Courts Rules (see for example: Pfizer Canada Inc. v. Apotex Inc 1999
CanLII 8371 (FC); and Sanofi-Aventis Canada Inc. v. Novopharm Ltd. 2007
FCA 163).
Are the
Applications Out of Time?
[21]
As noted above, section 527 of the Canada Elections Act
requires that an application to contest an election be filed within 30 days
after the later of (1) the day the result of the contested election is
published in the Canada Gazette, and (2) the day the applicant first knew or
should have known of the occurrence of the alleged irregularity, fraud, or
corrupt or illegal practice.
[22]
What an applicant “should have known” is a factual inquiry,
guided by the principles developed in the case law with respect to
discoverability and the reasonable inferences that can be drawn from the facts
and surrounding circumstances of a particular case. It is not a determination
based on the subjective or individual perception or experience, but what is
reasonable to conclude regarding what a person ought to have known in the
circumstances.
[23]
The Respondent MPs submit that even as acknowledged by each
of the Applicants and as set out in the Notices of Application, it is
uncontested that before and/or on election day, the Applicants received a live
and/or automated telephone call advising them of a polling station change that
they knew immediately or shortly thereafter to be information that was
incorrect. With the exception of the Applicant Leeanne Bielli, all of the
Applicants voted. The Respondent MPs also submit that with respect to the
harassing telephone calls disguised as canvassing calls, the Notices of
Application suggest that the recipients of those calls knew they were bogus or
at least suspicious and were not influenced by them in how they voted.
[24]
Aware that they received incorrect or improper telephone calls,
the Respondent MPs state that the clock immediately began to run on the 30 days
and that at the latest, the Applicants needed to commence their applications to
contest the election on or before June 20, 2011, the day the results were
published in the Canada Gazette.
[25]
The Applicants submit that although concluding the calls
were strange and conveying incorrect information at around the time they were
received, they had no way to know, no reason to believe or even suspect, that
the calls were not an isolated or random prank call, but part of what they now
allege to be a wider scheme of voter suppression, interference and manipulation
– possibly constituting a fraudulent, or corrupt or illegal practice within the
meaning of the Canada Elections Act.
[26]
The Notices of Application also state that the Applicants
were unaware of any alleged fraudulent, corrupt or illegal practices until the
media began reporting in February-March of 2012, the “robo-call” story
affecting the riding of Guelph, Ontario and the ongoing investigation conducted
by Elections Canada. It was then that the Applicants say they “connected the
dots” and concluded that what had happened to them so many months earlier was
the same thing and part of something that was organized and deliberate.
[27]
The Applicants state that they had no reason to suspect
that any person or persons would engage in a campaign of voter suppression or
dirty tricks as is now alleged, and that it is not reasonable to find that they
or any other elector who received such calls were required to immediately
report them or commence an application under the Canada Elections Act to
contest the election. The Applicants state that at the time they received the
strange, dubious or erroneous call(s), they had no reason to believe it was not
something received in isolation, and had no reason to know or believe that it
might be part of something bigger or orchestrated.
[28]
This issue of whether the applications were commenced out
of time and are now barred from proceeding cannot be determined on this summary
motion to dismiss. When should have the Applicants known? It is not as clear
as the Respondent MPs submit, that any reasonable person aware of all of the
facts and surrounding circumstances would have known, as the Applicants should
have known at the time they received the call(s) that they were or could have
been part of a fraud or corrupt or illegal practice committed during the
election campaign and that their time to commence an application to contest the
results of the election began to run. If a clear and certain disposition of
the issue cannot be made on the material filed on this motion, then the issue
of timeliness must and can only be determined on a full record at the hearing
of the applications on their merits.
Are the Applications Fatally Flawed and Certain to Fail?
[29]
The Respondent MPs submit that the test under section
524(1) of the Canada Elections Act for annulling an election, requires
the Applicants to prove that:
(i)
there was an irregularity, fraud, corrupt or illegal practice;
(ii)
that affected the result of the election; and
(iii)
that the impact on the election results be established by proving that the
number of votes affected by the
irregularity/fraud/corrupt
or illegal practice, was greater than the margin of victory.
[30]
The Respondent MPs submit that in the manner the Applicants
have framed the proceedings, and taking account the material facts pleaded, it
is impossible for the Applicants to satisfy this test. The Respondent MPs
address the first branch of the test – whether the Applicants have pleaded
sufficient material facts that if proven, establish that there was fraud, or
corrupt or illegal practices committed during last federal general election
(submitting they do not). They also rely on the second and third branches of
the test and submit that on the basis of what is pleaded, the Applicants
without doubt, cannot establish that to the extent there were any improper
practices, that those practices affected the results of the election or that
the margin of victory of the Respondent MPs should or would be decreased or
eliminated so as to set aside the result. They state that it is essentially a
foregone conclusion that the Court will be unable to find that any irregularity
or improper practices affected an amount of votes equal to or greater than the
margin of the majority claimed, and that consequently the applications would be
an essentially futile abuse if they proceed (Blanchard v. Cole, [1950] 4 DLR 316 (NSCA); O’Brien v. Hamel, [1990] 73. O.R. (2d) 87 (H.C.).
[31]
The
Respondent MPs also point out that with the exception of the Applicant
Ms. Bielli, all of the other Applicants cast their vote in either the advance
polls or on election day, and that there is no direct evidence described by the
Applicants as forthcoming that will establish that any voter was influenced by
or prevented from voting as a consequence of receiving one of the impugned live
or automated telephone calls, (as required to set aside an election: Di
Biase v. Vaughan (City), 2007 CarswellOnt 8775 (C.A.) aff’g 2007
CarswellOnt 5876 (S.C.J.). – see also Gross v. Wiebe, [1976], W.W.R. 394 (Sask.C.A.)).
[32]
In the written representations filed by each of the
Respondent MPs, they state:
In lieu of factual accounts of actual electors who
failed to vote, the applicants rely on “empirical analysis of voter turnout and
trends” and claim that a so-called “voter suppression” campaign resulted in a
decline in voter turnout “of an average of 3%”.
The Respondent MPs submit that such social science evidence is not
sufficient, and that in the absence of any other material facts, the Court will
be unable to conclude that the results of the election were affected at all, or
to the requisite extent such that a Court could order that the election result
ought to be annulled.
[33]
The
Applicants do not dispute or disagree with the Respondent MPs regarding the
general framework or test the Court must apply on any determination of an
election challenge on its merits. The Applicants acknowledge it is their
burden to establish that (1) there was fraud or corrupt or illegal practices;
(2) that affected the results of the election; such that (3) the plurality or
margin of victory should be diminished or eliminated, requiring the results to
declared null and void or annulled. The difference between the parties is what
evidence is relevant and admissible, and how the analysis should be conducted
by the Court to make its findings.
[34]
The
Applicants state that in election challenges that deal with votes that were
never cast due to fraud or corrupt or illegal practices (such as voter
suppression or voter intimidation cases), it is impossible to conduct a
reliable or realistic vote or body count and engage in a meaningful analysis of
whether these phantom or non-existent votes affect the margin of victory of any
of the Respondent MPs. It cannot simply be a quantitative or arithmetic
exercise in such cases – because the court cannot count what is not there. The
Applicants also submit that it is unreasonable and even improper to expect
individual eligible electors to self-identify en masse to facilitate such non-vote
count analysis.
[35]
With
respect to the Notices of Application, the Applicants set out in detail, what
practices they allege constitute voter suppression or harassment and the manner
in which they were conducted, including calls directing them to incorrect
polling stations. The Applicants rely on newspaper reports of “robo-calls” and
the ongoing Elections Canada investigations into allegations of voter
suppression in other ridings.
[36]
In
support of the applications, the individual Applicants have filed affidavits
setting out their own experience with live and automated telephone calls during
the election campaign. The Applicants also rely on the affidavit of Annette
Desgagne, a former employee of RMG, a company retained by the CPC and some CPC
candidates to call voters during the election campaign. There is also the
affidavit of Robert Penner, described as “an expert in the development and
implementation of sophisticated voter contact programs” who sets out his
information about how supporters of a candidate are identified and contacted;
and his opinion regarding the character and source of the misdirecting and
harassing calls in the seven ridings in issue in the within applications.
Finally, the Applicants rely on the affidavit of Frank Graves, of EKOS Research
Associates Inc., who is described as an expert in research methodology and
statistical analysis, and whose evidence includes his expert opinion, based on
his survey of electors, about the impact the live and automated calls had on
the results of the elections in each of the seven ridings in issue.
[37]
With
respect to how the results of the election in the seven ridings were affected,
and the possible impact on the margin of victory or plurality, the Applicants
state in the Notices of Application:
The effectiveness of voter suppression techniques,
such as those that have been reported to have taken place during the election,
can be estimated through empirical analysis of voter turnout and trends. This
analysis suggests that techniques, such as calls misdirecting voters to the
wrong poll, or harassing calls intended to discourage voters from supporting
political opponents, resulted in a decline in voter turnout of an average of
3%.
A 3% reduction in voter turnout is equivalent in a
typical riding to 2,500 eligible voters that did not go to the polls.
[38]
Whether
this material is sufficient is not the issue on this motion; it is not for the
Court to assess or determine the admissibility or sufficiency of the evidence
on a motion strike. The Applicants and Respondent MPs clearly take a different
approach as to what evidence can or must be adduced and what analysis be
conducted in voter suppression cases.
[39]
The
Respondent MPs urge the approach relied upon in cases that deal with challenges
to the eligibility of electors or to the votes or ballots actually cast - -
whether they should be found to be valid and counted, or set aside. As noted
in Wrzesnewskyj v. Attorney General (Canada), 2012 ONSC 2873 (CanLII),
at paras. 70-72:
70. This takes me to the heart of the test: What is
required to establish that an irregularity affected the result of the election?
71. The case law suggests that this is a narrow
question and generally, the parties agree. “[I]f the number of irregular votes exceeds the
plurality of the votes case, the election cannot stand….The plurality, the
number of votes that must be set aside before an election can be declared
invalid, has been referred to in cases such as this as a magic number ….
72.
The question to be asked in determining whether an election should be set aside
has been expressed in different ways:
-
Were there ballots in the box that should not have been there?...
-
Were there
persons who voted who”…should not have been permitted to vote…?
These questions require a reviewing
court to identify the irregularity and the consequence of its impact, analyze
each impugned ballot, individually or as part of a group that may be subject to
the same irregularity, and then if applicable, total up the ones that should
not have been included and determine whether the number of ballots set aside,
equals or exceeds the plurality.
[40]
The
Respondent MPs submit it is necessary in a similar manner, for the Applicants
to specifically identify and quantify the affected voters and ballots that should
have been in the box but were prevented from being cast, and that there be a
sufficient number of these “but for” ballots that would affect the result of
the election. The Applicants submit a different evidentiary basis or analysis
must be adopted to establish whether or how election results were affected in
voter suppression cases. Which is the correct test or approach in a case
alleging voter suppression is not clear.
[41]
In
the absence of clear authority on this issue, it cannot be concluded that the applications
are “utterly devoid of merit” so as to warrant their summary dismissal. The
Respondent MPs’ motions must be dismissed, and the matters of the sufficiency
of evidence and the appropriate test be determined at the hearing of the
applications on the merits.
Conclusion
[42]
The
Notices of Application set out the allegations, the basis on which the
allegations are made and the remedy sought. Whether or not they will succeed
is not certain, but I am not satisfied that the applications are so flawed in
the manner argued by the Respondent MPs, that it would be a clearly futile and
wasteful exercise to proceed to a hearing on the merits.
[43]
As
the Applicants point out, Elections Canada does not have the authority to annul
or otherwise set aside the result of an election that may have been affected by
fraud or corrupt or illegal activity. That authority is exclusively accorded
to a court as defined by the Canada Elections Act, upon the application
of a candidate or an elector eligible to vote in the riding in question.
[44]
Both
parties point out that applications under section 524(1) of the Canada
Elections Act must be determined in a summary way, without delay.
Accordingly, the parties are referred to the order of the lead Case Management
Judge, Prothonotary Aronovitch dated May 25, 2012 as subsequently revised, and
are urged to move these applications along to a hearing as quickly as
possible.
ORDER
THIS
COURT ORDERS that:
1.
The
motions be and are hereby dismissed.
2.
In
the event the parties cannot agree on costs, each may file written submissions
no longer than three pages in length within 10 days of the date of this Order.
“Martha Milczynski”
Prothonotary,
Case
Management Judge
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