SUPREME
COURT OF CANADA
Between:
Ted
Opitz
Appellant
and
Borys
Wrzesnewskyj,
Attorney
General of Canada,
Marc
Mayrand (Chief Electoral Officer),
Allan
Sperling (Returning Officer, Etobicoke Centre),
Sarah
Thompson and Katarina Zoricic
Respondents
And
between:
Borys
Wrzesnewskyj
Appellant
and
Ted
Opitz,
Attorney
General of Canada,
Marc
Mayrand (Chief Electoral Officer) and
Allan
Sperling (Returning Officer, Etobicoke Centre)
Respondents
-
and -
Keith
Archer (Chief Electoral Officer of British Columbia),
O.
Brian Fjeldheim (Chief Electoral Officer of Alberta) and
Canadian
Civil Liberties Association
Interveners
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein
and Moldaver JJ.
Joint
Reasons for Judgment:
(paras. 1 to 135)
Dissenting
Reasons:
(paras. 136 to 217)
|
Rothstein and Moldaver JJ. (Deschamps and
Abella JJ. concurring)
McLachlin C.J. (LeBel and Fish JJ.
concurring)
|
Opitz v. Wrzesnewskyj,
2012 SCC 55, [2012] 3 S.C.R. 76
Ted Opitz Appellant
v.
Borys Wrzesnewskyj,
Attorney General of Canada,
Marc Mayrand (Chief Electoral Officer),
Allan Sperling (Returning Officer,
Etobicoke Centre),
Sarah
Thompson and Katarina Zoricic Respondents
‑
and ‑
Borys
Wrzesnewskyj Appellant
v.
Ted Opitz,
Attorney General of Canada,
Marc Mayrand (Chief Electoral Officer)
and
Allan
Sperling (Returning Officer, Etobicoke Centre) Respondents
and
Keith Archer (Chief Electoral Officer of
British Columbia),
O. Brian Fjeldheim (Chief Electoral
Officer of Alberta) and
Canadian
Civil Liberties Association Interveners
Indexed as: Opitz v.
Wrzesnewskyj
2012 SCC 55
File No.: 34845.
2012: July 10; 2012: October 25.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella,
Rothstein and Moldaver JJ.
on appeal from the ontario superior court of justice
Elections — Contested election application —
Candidate defeated in federal election by a margin of 26 votes alleging
“irregularities . . . that affected the result of the election” —
Whether election in electoral district should be annulled — Canada Elections
Act, S.C. 2000, c. 9, ss. 524(1) (b), 531(2) .
Evidence — Fresh evidence — Relevance and
reliability — Motion seeking to adduce evidence from national registry of
electors on appeal — Whether fresh evidence should be admitted.
O
was the successful candidate in the electoral district of Etobicoke Centre for
the 41st Canadian federal election, with a plurality of 26 votes. The runner‑up,
W, applied to have the election annulled, on the basis that there were
“irregularities . . . that affected the result of the election”
(s. 524(1) (b) of the Canada Elections Act (“Act ”)). The
Ontario Superior Court of Justice granted the application, finding that 79
votes amounted to such irregularities and that, since this number exceeded the
plurality of 26 votes, the election could not stand. O appealed to the Supreme
Court of Canada as of right, and W cross‑appealed (s. 532(1) of the
Act ). The Chief Electoral Officer and the returning officer for Etobicoke
Centre also brought a motion for directions, seeking to adduce fresh evidence,
pursuant to s. 62(3) of the Supreme Court Act .
Held (McLachlin C.J.
and LeBel and Fish JJ. dissenting): The appeal should
be allowed and the cross‑appeal should be dismissed. The motion to
adduce fresh evidence should be dismissed.
Per
Deschamps, Abella, Rothstein and Moldaver JJ.: W asks this Court to disqualify the votes of several Canadian
citizens on account of administrative mistakes, notwithstanding evidence that
those citizens were entitled to vote. The invitation to do so should be
declined. There is no allegation in this case of any fraud or wrongdoing.
In
accordance with s. 3 of the Canadian Charter
of Rights and Freedoms and a plain reading of s. 6 of the Act , there
are only three fundamental prerequisites to the right to vote (or “entitlement”
to vote). A person must be 18 years of age or older, a Canadian citizen and a
resident in the electoral district (or “riding”). The Act provides various
procedural safeguards that allow persons to satisfy election officials that they
are entitled to vote and prevent those not entitled to vote from voting.
Examples of such procedural safeguards are the lists of electors, registration
procedures and identification and vouching requirements.
Lower
courts have taken two approaches to determining whether votes should be
invalidated on account of irregularities. Under the strict procedural
approach, a vote is invalid if an election official fails to follow any one of
the procedures aimed at establishing entitlement. Under the substantive
approach, an election official’s failure to follow a procedural safeguard is
not determinative. Only votes cast by persons not entitled to vote are
invalid. The substantive approach should be adopted, as it effectuates the
underlying Charter right to vote, not merely the procedures used to
facilitate that right.
The
substantive approach has two
steps under s. 524(1) (b). First, an applicant must demonstrate
that there was a breach of a statutory provision designed to establish the
elector’s entitlement to vote. An applicant who has successfully done so has
established an “irregularity”. Second, the applicant must demonstrate that
someone not entitled to vote, voted. He may do so using circumstantial evidence.
This second step establishes that the irregularity “affected the result” of the
election. Under this approach, an applicant who has led evidence from which an
“irregularity” could be found will have met his prima facie evidentiary
burden. At that point, the respondent can point to evidence from which it may
reasonably be inferred that no “irregularity” occurred or that, despite the
“irregularity”, the voter was in fact entitled to vote. After‑the‑fact
evidence of entitlement is admissible. If the two steps are established, a
vote is invalid. Finally, although a more realistic test may be developed in
the future, the “magic number” test is used for the purposes of this
application. It provides that an election should be annulled if the number of
invalid votes is equal to or greater than the successful candidate’s plurality.
Applying
these principles to this appeal, at least 59 of the 79 votes disqualified by
the application judge should be restored. The remaining 20 votes are less than
O’s plurality of 26. Although the remaining 20 votes are not discussed, there
is no reason to believe that any of the 20 voters were not in fact entitled to
vote. Because W has failed to establish that at least 26 votes should be
disqualified, his application to annul the election should be dismissed.
The
application judge made two errors of law. With respect
to polls 31 and 426, he misstated the onus of proof five times, in the context
of making crucial findings of fact, and it cannot be confidently said that he did
not reverse the onus of proof. For polls 174 and 89, he failed to consider
material evidence in reaching his findings. In light of these two errors of
law, the application judge’s findings at these polls are not entitled to
deference. Because the evidence is exclusively documentary and the Act
requires a contested election application to proceed without delay, it is
incumbent on this Court to reach its own conclusion on the validity of the
votes in these polling divisions rather than remit the case to the application
judge for redetermination.
At
polls 31 and 426, a total of 41 required registration certificates were
missing. If the certificates were never completed this would amount to an
“irregularity”, satisfying the first step of the test. Here, however, there
was evidence that indicates the certificates were completed but were misplaced
after the election. Considering the whole of the evidence, W failed to
establish, on a balance of probabilities, that there was an “irregularity”.
For 13 of these voters at poll 31, there was positive proof that they were
entitled to vote. They were on the list of electors at poll 31 or at other
polls in the riding. This evidence confirms the decision to restore these
votes. Although the minority also restores these votes, their explanation for
doing so is contrary to their position that a voter must establish his
entitlement before receiving and casting a ballot.
At
poll 174, eight individuals who were vouched for are
identified in the poll book by their relationship to the person who vouched for
them, rather than by their full name. There was, however, evidence in the list
of electors from which it could be inferred that the vouching was properly
conducted. W failed to establish an “irregularity”.
At
poll 89, 10 registration certificates were not signed
by the voters, but were instead signed only by the election official.
With respect to these votes, W established that there was an “irregularity”. W
failed, however, to show that the irregularity “affected the result” of the
election. There was evidence from which it could reasonably be inferred that
the 10 voters were entitled to vote and that the misplaced signatures were
simply a clerical mistake.
The
cross‑appeal should be dismissed. There is no
basis for interfering with the application judge’s findings with respect to the
other votes in polls 16, 21, 31, 89, 400 and 426.
Evidence
from the national register of electors can be relevant
in contested election applications as proof of voters’ entitlement. Given that
the motion to adduce fresh evidence could only assist O, however, the evidence
need not be considered.
Per
McLachlin C.J. and LeBel and Fish JJ. (dissenting): The federal
election in the riding of Etobicoke Centre should be annulled because of votes
cast by individuals who were not entitled to vote under
the Act .
An
individual must be entitled to vote before casting a ballot for the Member of
Parliament for the riding where she is ordinarily resident. The Act sets out a
comprehensive scheme defining entitlement to vote. In general, there are three
prerequisites: qualification, registration and identification. First, a voter
must be qualified, by being a Canadian citizen and 18 years of age or older.
Second, she must be registered, generally either by being on the list of
electors or filing a registration certificate. Third, she must be properly
identified at the polling station, whether by providing appropriate pieces of
identification or by taking an oath and being vouched for by another elector.
Being a
qualified elector, in terms of age and citizenship, is a necessary but not
sufficient condition for entitlement to vote. The registration and identification
prerequisites of entitlement must also be satisfied. These are fundamental
safeguards for the integrity of the electoral system. Nothing in the Act
suggests that a person who on election day is not entitled to vote should be
permitted to do so and to establish her entitlement later.
A court may
annul an election under s. 531(2) if the applicant establishes that there
were “irregularities . . . that affected the result of the election”
within the meaning of s. 524(1) (b). The term “irregularities”
should be interpreted to mean failures to comply with the requirements of the
Act , unless the deficiency is merely technical or trivial. For
“irregularities” to have “affected the result of the election”, they must be of
a type that could affect the result of the election and impact a sufficient
number of votes to have done so. Votes cast by persons not entitled to vote
are irregularities that can affect the result of the election, because they are
votes that should not have been cast. If the number of such votes equals or
exceeds the winner’s plurality, then the result of the election is affected and
the election should be annulled.
Since
election results benefit from a presumption of regularity, the applicant bears
the burden of establishing, on a balance of probabilities, that there were
“irregularities . . . that affected the result of the election”. Here,
the applicant had to establish that irregularities resulted in non‑entitled
voters casting votes. In the absence of palpable and overriding error, a
judge’s conclusions on whether a voter complied with the entitlement provisions
of the Act should not be disturbed.
In
this case, the application judge applied the correct burden of proof and, while
he improperly set aside some votes, he did not err with respect to 65 ballots
cast by persons not entitled to vote. As this exceeds the winner’s plurality
of 26 votes, the election should be annulled.
Irregularities
in identification led the application judge to set aside votes at polls 21,
174, 502 and 30. He did not err in setting aside 27 votes on this basis.
These votes were cast by individuals using the oath and vouching procedure
under the Act to identify themselves at the polling station.
At
poll 21 the evidence supported the application judge’s conclusion that vouching
was required for eight voters but did not occur. Similarly, the judge did not
err in concluding that any vouching that occurred for eight voters at poll 174 was
improper. Finally, seven voters at poll 502 and four voters at poll 30 were
vouched for by individuals not resident in the polling division at which they
were vouching, contrary to the Act .
Irregularities
in registration led the application judge to set aside votes cast under the
registration certificate procedure at polls 426, 174, 89 and 31. He did not
err in setting aside 38 votes on this basis. Individuals voting by
registration certificate must make a declaration of qualification, certifying their
age and citizenship. This requirement is vital to entitlement to vote.
The
evidence supported the application judge’s conclusion that no declaration of
qualification was made for 26 registration certificate voters at poll 426. No
registration certificates were found for these voters and the relevant pages of
the poll book were blank. The application judge did not err in concluding that
the required declaration was not made by one registration certificate voter at
poll 174 and nine registration certificate voters at poll 89. The evidence
supporting these findings included the absence of voter signatures from the
declaration of qualification on the registration certificates.
Regarding
15 votes cast by registration certificate voters at poll 31, the evidence
supported the application judge’s conclusion that declarations of qualification
were never made. The registration certificates could not be found. However,
while two of those votes were properly set aside by the application judge, the
remaining 13 should not have been. Three voters had already satisfied the
registration prerequisite of entitlement by being on the list of electors for polling
division 31. The remaining 10 voters were on lists of electors for other
polling divisions within the electoral district. In the circumstances, the
fact that votes were cast at the wrong polling station within the riding was a
technical or trivial deficiency and not an irregularity within the meaning of
s. 524(1) (b).
Since
the 65 votes properly set aside exceed the 26‑vote plurality, the
election should be annulled.
The
motion to adduce fresh evidence should be dismissed. After‑the‑fact
information that a non‑entitled voter was qualified is not relevant to
whether he or she was entitled to receive a ballot on election day.
Furthermore, the reliability of the evidence in this case is questionable.
Moreover, admitting the evidence could not affect the disposition of the
appeal, given the number of votes that were properly set aside by the
application judge.
Cases Cited
By Rothstein and Moldaver JJ.
Applied:
R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517; approved: Camsell
v. Rabesca, [1987] N.W.T.R. 186; Flookes and Long v. Shrake (1989),
100 A.R. 98; disapproved: O’Brien v. Hamel (1990), 73 O.R. (2d)
87; Nielsen v. Simmons (1957), 14 D.L.R. (2d) 446; Hogan v. Careen
and Hickey (1993), 116 Nfld. & P.E.I.R. 310; Blanchard v. Cole,
[1950] 4 D.L.R. 316; referred to: Figueroa v. Canada (Attorney
General), 2003 SCC 37, [2003] 1 S.C.R. 912; Henry v. Canada (Attorney
General), 2010 BCSC 610, 7 B.C.L.R. (5th) 70; Sauvé v. Canada (Attorney
General) (1992), 7 O.R. (3d) 481, aff’d [1993] 2 S.C.R. 438; Belczowski
v. Canada, [1992] 2 F.C. 440, aff’d [1993] 2 S.C.R. 438; Bell ExpressVu
Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Haig v.
Canada, [1993] 2 S.C.R. 995; Longley v. Canada (Attorney General),
2007 ONCA 852, 88 O.R. (3d) 408, leave to appeal refused, [2008] 1 S.C.R. x; 2747‑3174
Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919; Cusimano
v. Toronto (City), 2011 ONSC 7271, 287 O.A.C. 355; Abrahamson v. Baker
and Smishek (1964), 48 D.L.R. (2d) 725; Beamish v. Miltenberger,
[1997] N.W.T.R. 160.
By McLachlin C.J. (dissenting)
Rizzo
& Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Knott, 2012
SCC 42, [2012] 2 S.C.R. 470; Harper v. Canada (Attorney General), 2004
SCC 33, [2004] 1 S.C.R. 827; Henry v. Canada (Attorney General), 2010
BCSC 610, 7 B.C.L.R. (5th) 70; Haig v. Canada, [1993] 2 S.C.R. 995; Canada
(Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC
53, [2011] 3 S.C.R. 471; Beamish v. Miltenberger, [1997] N.W.T.R. 160; Wright
v. Koziak, [1981] 1 W.W.R. 449; Morgan v. Simpson, [1974] 3 All E.R.
722; O’Brien v. Hamel (1990), 73 O.R. (2d) 87; Blanchard v. Cole,
[1950] 4 D.L.R. 316; McMechan v. Dow (1968), 67 D.L.R. (2d) 56; Pharmascience
Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513; Bell ExpressVu Limited
Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Dewdney Election
Case, [1925] 3 D.L.R. 770; Housen v. Nikolaisen, 2002 SCC 33, [2002]
2 S.C.R. 235; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R.
401; Palmer v. The Queen, [1980] 1 S.C.R. 759.
Statutes and Regulations Cited
Canada Elections Act, S.C. 2000,
c. 9 , Part 1, ss. 3, 6, 32, 44, 93, 96 et seq., 106, 109,
120(1), 125, Part 9, 143, 144, 148.1, 149, 161, 162, 509, 510, 511, 517, Part
20, 524, 525(3), 531, 532(1), 538.
Canadian Charter of Rights and Freedoms,
ss. 3 , 33 .
Constitution Act, 1867, ss. 40 , 51 ,
51A .
Rules of the Supreme Court of Canada,
SOR/2002‑156, rr. 3, 47.
Supreme Court Act, R.S.C. 1985, c. S‑26,
s. 62(3) .
Authors Cited
Boyer, J. Patrick. Election Law in Canada: The Law and
Procedure of Federal, Provincial and Territorial Elections, vol. I.
Toronto: Butterworths, 1987.
Driedger, Elmer A. Construction of Statutes, 2nd ed.
Toronto: Butterworths, 1983.
Huefner, Steven F. “Remedying Election Wrongs” (2007), 44 Harv. J.
on Legis. 265.
Oxford English Dictionary, 2nd ed., vol. VIII.
Oxford: Clarendon Press, 1989, “irregular”.
Sullivan, Ruth. Sullivan on the Construction of Statutes,
5th ed. Markham, Ont.: LexisNexis, 2008.
APPEAL
and CROSS‑APPEAL from a judgment of the Ontario Superior Court of Justice
(Lederer J.), 2012 ONSC 2873, 110 O.R. (3d) 350, [2012]
O.J. No. 2308 (QL), 2012 CarswellOnt 6422, allowing a contested election
application. Appeal allowed and cross‑appeal dismissed, McLachlin C.J.
and LeBel and Fish JJ. dissenting.
W. Thomas
Barlow, Kent E. Thomson, Matthew I. Milne‑Smith and Nicholas Shkordoff, for the appellant/respondent Ted
Opitz.
Gavin J.
Tighe, Stephen A. Thiele and Guy Régimbald, for
the respondent/appellant Borys Wrzesnewskyj.
David Di Paolo, Alessandra Nosko and Trevor Knight, for the respondents Marc
Mayrand (Chief Electoral Officer) and Allan
Sperling (Returning Officer, Etobicoke Centre).
Written
submissions only by the respondent Sarah Thompson.
Harold Turnham, for the intervener Keith
Archer (Chief Electoral Officer of British Columbia).
William W.
Shores, Q.C., and Fiona Vance, for
the intervener O. Brian Fjeldheim (Chief Electoral Officer of Alberta).
Allison A.
Thornton and
Shashu Clacken
Reyes, for
the intervener the Canadian Civil Liberties Association.
No one
appeared for
the respondent the Attorney General of Canada.
No
one appeared for the respondent Katarina Zoricic.
The judgment of
Deschamps, Abella, Rothstein and Moldaver JJ. was delivered by
Rothstein and Moldaver
JJ. —
I.
Introduction
[1]
A candidate who lost in a close federal election
attempts to set aside the result of that election. We are asked to disqualify
the votes of several Canadian citizens based on administrative mistakes,
notwithstanding evidence that those citizens were in fact entitled to vote. We
decline the invitation to do so. The Canadian Charter of Rights and
Freedoms and the Canada Elections Act, S.C. 2000, c. 9 (“Act ”), have
the clear and historic purposes of enfranchising Canadian citizens, such that
they may express their democratic preference, and of protecting the integrity
of our electoral process. Following these objectives and the wording of the
Act , we reject the candidate’s attempt to disenfranchise entitled voters and so
undermine public confidence in the electoral process.
[2]
At issue in this appeal are the principles to be
applied when a federal election is challenged on the basis of “irregularities”.
We are dealing here with a challenge based on administrative errors. There is
no allegation of any fraud, corruption or illegal practices. Nor is there any
suggestion of wrongdoing by any candidate or political party. Given the
complexity of administering a federal election, the tens of thousands of
election workers involved, many of whom have no on-the-job experience, and the
short time frame for hiring and training them, it is inevitable that
administrative mistakes will be made. If elections can be easily annulled on
the basis of administrative errors, public confidence in the finality and
legitimacy of election results will be eroded. Only irregularities that affect
the result of the election and thereby undermine the integrity of the electoral
process are grounds for overturning an election.
[3]
The 41st Canadian federal election took place on
May 2, 2011. In the electoral district (or “riding”) of Etobicoke Centre, 52,794 votes were cast. After a judicial
recount, Ted Opitz was the successful candidate with a
plurality of 26 votes. Borys Wrzesnewskyj
was the runner-up.
[4]
Mr. Wrzesnewskyj applied under s. 524(1) (b)
of the Act , to have the election annulled, on the basis that there were
“irregularities . . . that affected the result of the election”. The
relevant provisions of the Act are contained in the Appendix to these
reasons. The application was heard by Justice Lederer of the Ontario Superior
Court of Justice (2012 ONSC 2873, 110 O.R. (3d) 350). Lederer J. concluded that 79 votes amounted to irregularities that affected the
result of the election. He declared the election “null and void”
(para. 154). Mr. Opitz appealed as of right to this Court and Mr. Wrzesnewskyj cross-appealed (s. 532(1)
of the Act ).
[5]
For the reasons that follow, we would allow the
appeal and dismiss the cross-appeal. While we have only discussed 59 votes in
these reasons, from our analysis of all of the evidence, we have no reason to
believe that any of the other 20 voters did not in fact have the right to vote.
II.
Ontario Superior Court of Justice, 2012 ONSC 2873, 110 O.R. (3d) 350
[6]
The application proceeded on the basis that no
fraud or wrongdoing was alleged. The submissions were restricted to alleged
irregularities. In conformity with the statutory direction to resolve the
contest in a summary way (s. 525(3) of the Act ), Mr. Wrzesnewskyj agreed
to limit his submissions to alleged irregularities at 10 of the more than 230
polls that made up the electoral district of Etobicoke Centre.
[7]
The application judge first observed that when
examining the conduct of an election, there is a presumption that it was
conducted in accordance with the requirements of the governing legislation
(para. 26). He further found that the onus was on the applicant throughout to
prove, on a balance of probabilities, that there were irregularities and that
they affected the result (paras. 45 and 51).
[8]
The application judge next determined that the
purpose of the Act was to enfranchise Canadian citizens (paras. 56-60). Hence,
the legislation was to be interpreted liberally because a strict interpretation
could detract from that goal. However, he also found that the word
“irregularity”, an undefined term in the Act , should be given a broad
interpretation (paras. 62 and 67).
[9]
Finally, in determining whether an irregularity
“affected the result of the election”, the application judge concluded that if
the number of irregular votes exceeded the plurality of the winning candidate,
in this case 26, the election could not stand (para. 71). The application
judge set aside a total of 79 votes. Because the number of votes set aside,
79, exceeded the plurality of 26, he declared the election “null and void”.
III.
Analysis
A.
The Canada
Elections Act
[10]
The right of every citizen to vote, guaranteed
by s. 3 of the Charter , lies at the heart of Canadian democracy. The
franchise has gradually broadened in Canada over the course of history from
male property owners 21 years of age and older to the present universal
suffrage of citizens aged 18 and over. Universal suffrage is reflected in s. 3
of the Act , which provides that a person is “qualified” to vote if he or
she is a Canadian citizen and is 18 years of age or older.
[11]
Canada is divided into “electoral districts”
(commonly known as “ridings”): Charter, s. 3 , and Constitution
Act, 1867, ss. 40 , 51 and 51A . Etobicoke Centre is an electoral district.
Section 6 of the Act requires that a qualified elector be ordinarily
resident in one of the polling divisions within the electoral district.
Persons who are qualified as electors are entitled to vote for a member of
Parliament for the electoral district in which the elector is ordinarily
resident.
[12]
The Act also
sets out detailed procedures for voting that turn the constitutional right of
citizens to vote into a reality on election day. What follows is a brief
description of the procedural provisions that give rise to the issues in this
appeal.
[13]
Electoral districts in Canada are subdivided
into polling divisions, each of which contains at least 250 electors
(s. 538 of the Act ). For each polling division, a returning officer
establishes one or more polling stations (s. 120(1) ). Each polling
division considered in this judgment had only one polling station. Each
station is overseen by a deputy returning officer (“DRO”) and a poll clerk (s.
32 ). Sometimes several polling divisions may have polling stations in the same
building, at separate tables. Certain polling divisions cover only residents
of two or more institutions, often senior citizens’ residences. In such cases,
the returning officer can establish “mobile” polling stations to be located in
each of the institutions (ss. 125 and 538(5) ). The Chief Electoral
Officer (“CEO”) is required to maintain a national register of electors (“NROE”)
containing the name, sex, date of birth and address of electors (s. 44 ).
Between elections, the CEO updates the NROE using data from various government
sources. Shortly after an election is called, the CEO prepares a preliminary
list of electors (“PLE”) for each polling division, based on the NROE
(s. 93). A process of revision of the PLE is then undertaken (ss. 96
ff.). Before polling day, official lists of electors (“OLEs”) are prepared for
use at each polling station (s. 106 ).
[14]
Many electors will be on the OLE of their
assigned polling division, by “enumeration”. Since age and citizenship are
prerequisites for inclusion on the OLE, those listed do not have to establish
their age and citizenship when they come to vote. To vote, these electors must
prove their identity and residence by one of three means: (a) providing
government-issued identification with photo and address (s. 143(2)(a));
(b) providing two pieces of authorized identification, at least one of which
establishes their address (s. 143(2)(b)); or (c) taking a prescribed
oath and being vouched for by someone on the OLE in the same polling division
(s. 143(3)). Once identity and residence are established, the voter is given a
ballot.
[15]
Electors who are not on the OLE can have their
names added on election day by the process of “registration” (s. 161(1)). To
register, the elector must provide proof of identity and residence. Where the
elector satisfies these requirements, the DRO will complete a registration
certificate and the elector will sign it (s. 161(4)). Electors who register
must also establish their age and citizenship. This is accomplished by signing
a declaration to that effect, which appears on the registration certificate.
[16]
Section 161(5) of the Act provides that, where a
registration certificate is completed, the OLE is deemed to have been modified
in accordance with the certificate. After polling day, the returning officer
uses the registration certificates to update the OLE, and the CEO creates a
final list of electors (“FLE”) for each electoral district (s. 109 ). The FLE
is an updated list containing the names of those electors who were enumerated
on the OLE as well as those who voted by registration.
[17]
Vouching is a procedure designed to enable
persons to vote who lack appropriate identification. An elector may prove his
or her identity by being vouched for by a person whose name appears on the list
of electors for the same polling division. A voucher can only vouch once. A
person who has been vouched for cannot vouch for someone else in the same
election (s. 161(1)(b), (6) and (7)).
[18]
The Act also establishes requirements for
record-keeping by election officials. After the issue of the writ to call an
election, a returning officer appoints one DRO and one poll clerk for
each polling station in the electoral district for which he or she is
responsible (s. 32). Once the DRO is satisfied that an elector’s
identity and residence have been proven, the name of the elector is crossed off
the OLE and the elector is allowed to vote (s. 143(4)). Once the elector has
voted, the poll clerk is required to indicate on the list that the vote was
cast by placing a check mark in a box set aside for that purpose (s. 162(b)).
The poll clerk is also required to make entries in a “poll book”. The required
entries include various matters, such as whether an elector has taken an oath,
the type of oath he or she has taken and the fact that the elector has voted
using a registration certificate (s. 162(f) and (j)).
B. Interpreting
the Relevant Statutory Provision
(1) Part
20 of the Act
[19]
Part 20 of the Act deals with contested
elections. Section 524(1) provides:
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
(a) under
section 65 the elected candidate was not eligible to be a candidate; or
(b) there were
irregularities, fraud or corrupt or illegal practices that affected the result
of the election.
[20]
The remedy the court may provide is in s.
531(2) :
531. . . .
(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.
The use of the word “respectively”
means that where the grounds in s. 524(1) (a) are established, a court must
declare the election null and void; where the grounds in s. 524(1) (b)
are established, a court may annul the election. Conversely, a court
may not annul an election unless the grounds in s. 524(1) (b) are
established.
[21]
The French version of the Act confirms
this interpretation:
531. . . .
(2) Au
terme de l’audition, [le tribunal] peut rejeter la requête; si les motifs sont
établis et selon qu’il s’agit d’une requête fondée sur les alinéas
524(1) a) ou b), il doit constater la nullité de l’élection du
candidat ou il peut prononcer son annulation.
[22]
Under those provisions,
if the grounds in para. (a) of s. 524(1) are established (the elected
candidate was ineligible), then a court must declare the election null and
void. In such circumstances it is as if no election was held. By contrast, if
the grounds in para. (b) are established (there were irregularities,
fraud or corrupt or illegal practices that affected the result of the
election), a court may annul the election. Under these circumstances, a
court must decide whether the election held was compromised in such a way as to
justify its annulment.
[23]
In deciding whether to
annul an election, an important consideration is whether the number of impugned
votes is sufficient to cast doubt on the true winner of the election or whether
the irregularities are such as to call into question the integrity of the
electoral process. Since voting is conducted by secret ballot in Canada, this assessment cannot
involve an investigation into voters’ actual choices. If a court is satisfied
that, because of the rejection of certain votes, the winner is in doubt, it
would be unreasonable for the court not to annul the election.
(2) Meaning
of “Irregularities . . . That Affected the Result of the
Election”
[24]
This case involves
interpreting the phrase “irregularities . . . that affected
the result of the election”. The phrase is composed of two elements:
“irregularities” and “affected the result”. As we shall explain,
“irregularities” are serious administrative errors that are capable of
undermining the electoral process — the type of mistakes that are tied to and
have a direct bearing on a person’s right to vote.
[25]
“Affected the result”
asks whether someone not entitled to vote, voted. Manifestly, if a vote is
found to be invalid, it must be discounted, thereby altering the vote count,
and in that sense, affecting the election’s result. “Affected the result”
could also include a situation where a person entitled to vote was improperly
prevented from doing so, due to an irregularity on the part of an election
official. That is not the case here and we need not address it.
[26]
In construing the
meaning of “irregularities . . . that affected the
result”, we have taken into account a number of aides to statutory
interpretation, among them: (1) the constitutional right to vote and the
objectives of the Act ; (2) the text and context of s. 524 ; and (3) the
competing democratic values engaged.
(a) The
Constitutional Right to Vote and the Objectives of the Act
[27]
Canadian democracy is founded upon the right to
vote. Section 3 of the Charter provides:
3. Every citizen of Canada has the right to vote in an election of
members of the House of Commons or of a legislative assembly and to be
qualified for membership therein.
[28]
The fundamental purpose of s. 3 of the Charter
was described in Figueroa v. Canada (Attorney General), 2003 SCC 37,
[2003] 1 S.C.R. 912, by Iacobucci J., for the majority, at para. 30:
In
the final analysis, I believe that the Court was correct in Haig [v.
Canada, [1993] 2 S.C.R. 995], to define s. 3 with reference to the
right of each citizen to play a meaningful role in the electoral process.
Democracy, of course, is a form of government in which sovereign power resides
in the people as a whole. In our system of democracy, this means that each
citizen must have a genuine opportunity to take part in the governance of the
country through participation in the selection of elected representatives. The
fundamental purpose of s. 3 , in my view, is to promote and protect the right of
each citizen to play a meaningful role in the political life of the country.
Absent such a right, ours would not be a true democracy.
[29]
The constitutional guarantee of the right to vote in s.
3 of the Charter is a fundamental provision, not subject to
constitutional override under s. 33 of the Charter . Section
3 provides that citizens have the right to vote “in an election of members
of the House of Commons or of a legislative assembly”. The right to
vote in the election of “members of the House of Commons” reflects Canada’s
constitutional character as a parliamentary form of government. Citizens
have the right to vote in a specific electoral district, choosing among various
candidates who wish to be the Member of Parliament for that district: see Henry
v. Canada (Attorney General), 2010 BCSC 610, 7 B.C.L.R.
(5th) 70, at para. 139.
[30]
Section 6 of the Act recognizes that all persons
meeting the three requirements of age, citizenship and residence are “entitled”
to vote. It reads:
6. Subject
to this Act , every person who is qualified as an elector is entitled to have
his or her name included in the list of electors for the polling division in
which he or she is ordinarily resident and to vote at the polling station for
that polling division.
Section 6 uses the term “polling division”.
Polling divisions exist within electoral districts for administrative
simplicity and voter convenience on election day (J. P. Boyer, Election
Law in Canada: The Law and Procedure of Federal, Provincial and Territorial
Elections (1987), vol. I, at p. 101). The Charter right to
vote is for the Member of Parliament for the electoral district in which the
voter resides.
[31]
On a plain reading of s. 6 ,
qualification and residence in a polling division give an individual the
entitlement or right to be included on the list of electors for that polling
division, and to vote. Section 6 does not provide that inclusion on the
list of electors is a prerequisite to the right to vote. Such a reading
reverses the effect of the provision. Entitlement to be on the list and
entitlement to vote are consequences of being a citizen, being of age and being
resident in the polling division.
[32]
In this regard, it should be noted that s. 6 is
a complete definition of “entitlement” in the Act . The definition is not
altered by any other provision. “Entitlement” consists only of the fundamental
requirements of age, citizenship, and residence.
[33]
In so concluding, we recognize that the opening
words of s. 6 are “[s]ubject to this Act ”. However, a distinction must be made
between the requirements of “entitlement” in s. 6 itself, which appears in Part
1 of the Act under the heading “Electoral Rights”, and the procedural
mechanisms applicable on election day which appear in Part 9 of the Act under
the heading “Voting”. The Act establishes procedures to allow those
citizens who have the right to vote to do so on election day. For example, ss.
148.1 and 149 , which appear in Part 9, require procedures to be followed in
establishing identity and residence, and in registering, before voting. These
are procedural provisions designed to satisfy election officials that voters
have the attributes that entitle them to vote. The purpose of procedural
provisions in the Act is to enfranchise those persons having a right to
vote under s. 6 , and to prevent persons without the right to vote, from voting.
[34]
The procedural safeguards in the Act are
important; however, they should not be treated as ends in themselves.
Rather, they should be treated as a means of ensuring that only those who have
the right to vote may do so. It is that end that must always be kept in sight.
[35]
It is well accepted in the contested election
jurisprudence that the purpose of the Act is to enfranchise all persons
entitled to vote and to allow them to express their democratic preferences.
Courts considering a denial of voting rights have applied a stringent
justification standard: Sauvé v. Canada (Attorney General) (1992), 7
O.R. (3d) 481 (C.A.), and Belczowski v. Canada, [1992] 2 F.C. 440
(C.A.), both aff’d [1993] 2 S.C.R. 438.
[36]
The words of an Act are
to be read in their “entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the Act , the
object of the Act , and the intention of Parliament”: Bell ExpressVu Limited
Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26,
citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at
p. 87. The constitutional right to vote and the enfranchising purpose of
the Act are of central importance in construing the words
“irregularities . . . that affected the result”.
[37]
It is well recognized in the jurisprudence that
where electoral legislation is found to be ambiguous, it should be interpreted
in a way that is enfranchising: Haig v. Canada, [1993] 2 S.C.R. 995.
Although he was in dissent in that case, Cory J. made the following
observations at pp. 1049-50, with which L’Heureux-Dubé J., for the majority, at
p. 1028, expressed total agreement:
The courts have always recognized the
fundamental importance of the vote and the necessity to give a broad
interpretation to the statutes which provide for it. This traditional approach
is not only sound it is essential for the preservation of democratic rights.
The principle was well expressed in Cawley v. Branchflower (1884), 1
B.C.R. (Pt. II) 35 (S.C.). There Crease J. wrote at p. 37:
The
law is very jealous of the franchise, and will not take it away from a voter if
the Act has been reasonably complied with. . . . It looks to
realities, not technicalities or mere formalities, unless where forms are by
law, especially criminal law, essential, or affect the subject-matter under
dispute.
To the same effect in Re Lincoln Election
(1876), 2 O.A.R. 316, Blake V.C. stated (at p. 323):
The
Court is anxious to allow the person who claims it the right to exercise the
franchise, in every case in which there has been a reasonable compliance with
the statute which gives him the right he seeks to avail himself of. No merely
formal or immaterial matter should be allowed to interfere with the voter
exercising the franchise . . . .
It
can be seen that enfranchising statutes have been interpreted with the aim and
object of providing citizens with the opportunity of exercising this basic
democratic right. Conversely restrictions on that right should be narrowly
interpreted and strictly limited. [Emphasis deleted.]
[38]
While enfranchisement is one of the cornerstones
of the Act , it is not free-standing. Protecting the integrity of the
democratic process is also a central purpose of the Act . The same procedures
that enable entitled voters to cast their ballots also serve the purpose of
preventing those not entitled from casting ballots. These safeguards address
the potential for fraud, corruption and illegal practices, and the public’s
perception of the integrity of the electoral process. (See Henry, at
paras. 305-6.) Fair and consistent observance of the statutory safeguards
serves to enhance the public’s faith and confidence in fair elections and in
the government itself, both of which are essential to an effective democracy: Longley
v. Canada (Attorney General), 2007 ONCA 852, 88 O.R. (3d) 408, at para. 64,
leave to appeal refused, [2008] 1 S.C.R. x.
(b) The
Text and Context of Section 524
[39]
Just as the
enfranchising purpose of the Act informs the interpretation of the
phrase “irregularities . . . that affected the result” in
s. 524 , so too does the text of the provision itself. Parliament’s use of the word “irregularities” in s. 524 of the Act
is significant. A different phrase, “any non-compliance with the
provisions of the Act ”, could have been used. Moreover, if Parliament had
intended that any deviation from the statutory procedure be a basis on
which to annul an election, it would have spoken in terms of “non-compliance”.
Instead, it used “irregularities”, suggesting that Parliament intended to
restrict the scope of administrative errors that give rise to overturning an election.
[40]
How is the meaning of “irregularities”
restricted? The well-known “associated words” or “noscitur a sociis”
rule of interpretation assists in this regard. The rule states that a term or
an expression should not be interpreted without taking the surrounding terms
into account. “The meaning of a term is revealed by its association with other
terms: it is known by its associates”: 2747-3174 Québec Inc. v. Quebec
(Régie des permis d’alcool), [1996] 3 S.C.R. 919, at para. 195 (emphasis
deleted).
[41]
Professor Sullivan defines the “associated
words” rule as follows:
The associated words rule is properly invoked
when two or more terms linked by “and” or “or” serve an analogous grammatical
and logical function within a provision. This parallelism invites the reader to
look for a common feature among the terms. This feature is then relied on to
resolve ambiguity or limit the scope of the terms. Often the terms are
restricted to the scope of their broadest common denominator.
(Sullivan
on the Construction of Statutes (5th ed. 2008), at p. 227)
[42]
The word “irregularities” appears as part of the
following phrase: “irregularities, fraud or corrupt or illegal practices”.
These are words that speak to serious misconduct. To interpret “irregularity”
as meaning any administrative error would mean reading it without regard to the
related words.
[43]
The common thread between the words
“irregularities, fraud or corrupt or illegal practices” is the seriousness of
the conduct and its impact on the integrity of the electoral process. Fraud,
corruption and illegal practices are serious. Where they occur, the electoral
process will be corroded. In associating the word “irregularity” with those
words, Parliament must have contemplated mistakes and administrative errors
that are serious and capable of undermining the integrity of the electoral
process. (See Cusimano v. Toronto (City), 2011 ONSC 7271, 287 O.A.C.
355, at para. 62.)
(c) Competing
Democratic Values
[44]
Central to the issue
before us is how willing a court should be to reject a vote because of
statutory non-compliance. Although there are
safeguards in place to prevent abuse, the Act accepts some uncertainty
in the conduct of elections, since in theory, more onerous and accurate methods
of identification and record-keeping could be adopted. The balance struck by
the Act reflects the fact that our electoral system must balance several
interrelated and sometimes conflicting values. Those values include certainty, accuracy, fairness,
accessibility, voter anonymity, promptness, finality, legitimacy, efficiency
and cost. But the central value is the Charter -protected
right to vote.
[45]
Our system strives to
treat candidates and voters fairly, both in the conduct of elections and in the
resolution of election failures. As we have discussed,
the Act seeks to enfranchise all entitled persons, including those
without paper documentation, and to encourage them to come forward to vote on
election day, regardless of prior enumeration. The system strives to achieve
accessibility for all voters, making special provision for those without
identification to vote by vouching. Election officials are unable to determine
with absolute accuracy who is entitled to vote. Poll clerks do not take
fingerprints to establish identity. A voter can establish Canadian citizenship
verbally, by oath. The goal of accessibility can only be achieved if we are
prepared to accept some degree of uncertainty that all who voted were entitled
to do so.
[46]
The practical realities
of election administration are such that imperfections in the conduct of
elections are inevitable. As recognized in Camsell
v. Rabesca, [1987] N.W.T.R. 186 (S.C.), it is clear that “in every
election, a fortiori those in urban ridings, with large numbers of polls,
irregularities will virtually always occur in one form or another” (p. 198). A
federal election is only possible with the work of tens of thousands of
Canadians who are hired across the country for a period of a few days or, in
many cases, a single 14-hour day. These workers perform many detailed tasks
under difficult conditions. They are required to apply multiple rules in a
setting that is unfamiliar. Because elections are not everyday occurrences, it
is difficult to see how workers could get practical, on-the-job experience.
[47]
The provision for
contesting elections in Part 20 of the Act serves to restore
accuracy and reliability where it has been compromised. However, tension
exists between allowing an application to contest an election on the basis of
irregularities and the need for a prompt, final resolution of election
outcomes. The Act provides, in s. 525(3) :
(3)
An application shall be dealt with without delay and in a summary way. . . .
[48]
It should be remembered that annulling an
election would disenfranchise not only those persons whose votes were
disqualified, but every elector who voted in the riding. That voters will have
the opportunity to vote in a by-election is not a perfect answer, as Professor
Steven F. Huefner writes:
. . . a new election can never be
run on a clean slate, but will always be colored by the perceived outcome of
the election it superseded. New elections may also be an inconvenience for the
voters, and almost certainly will mean that a different set of voters, with
different information, will be deciding the election. Moreover, there can be
no guarantee that the new election will itself be free from additional
problems, including fraud. In the long term, rerunning elections might lead to
disillusionment or apathy, even if in the short term they excite interest in
the particular contest. Frequent new elections also would undercut democratic
stability by calling into question the security and efficiency of the voting
mechanics.
(“Remedying
Election Wrongs” (2007), 44 Harv. J. on Legis. 265, at pp. 295-96)
[49]
Permitting elections to be lightly overturned
would also increase the “margin of litigation”. The phrase “margin of
litigation” describes an election outcome close enough to draw post-election
legal action: Huefner, at pp. 266-67.
[50]
The current system of election administration in
Canada is not designed to achieve perfection, but to come as close to the ideal
of enfranchising all entitled voters as possible. Since the system and the Act
are not designed for certainty alone, courts cannot demand perfect
certainty. Rather, courts must be concerned with the integrity of the
electoral system. This overarching concern informs our interpretation of the
phrase “irregularities . . . that affected the result”.
(d) Conclusion:
The Meaning of “Irregularities . . . That Affected the Result”
[51]
Having regard to the centrality of the
constitutional right to vote, the enfranchising purpose of the Act , the
language of s. 524 , and the numerous democratic values engaged, we conclude
that an “irregularit[y] . . . that affected the result” of an
election is a breach of statutory procedure that has resulted in an individual
voting who was not entitled to vote. Such breaches are serious because they
are capable of undermining the integrity of the electoral process.
(3) When
Is an “Irregularit[y] . . . That Affected the Result”
Established?
[52]
An applicant who seeks to annul an election
bears the legal burden of proof throughout. (See Cusimano, at para. 74;
Abrahamson v. Baker and Smishek (1964),
48 D.L.R. (2d) 725 (Sask. C.A.); Camsell, at p. 199; and Beamish v. Miltenberger,
[1997] N.W.T.R. 160 (S.C.), at paras.
38-39.) As earlier noted, the present situation is governed by s. 531(2) of
the Act . For ease of reference, the provision is reproduced below:
(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.
[53]
The word “established” places the burden
squarely on the applicant. The applicable standard of proof is the civil
standard, namely, proof on a balance of probabilities.
[54]
Two approaches have been used in the past by
courts to determine whether there was an “irregularit[y] . . .
that affected the result” of an election. A strict procedural approach was
followed by courts in O’Brien v. Hamel (1990), 73 O.R. (2d) 87 (H.C.J.);
Nielsen v. Simmons (1957), 14 D.L.R. (2d) 446 (Y. Terr. Ct.); Hogan
v. Careen and Hickey (1993), 116 Nfld. & P.E.I.R. 310 (S.C. (T.D.));
and Blanchard v. Cole, [1950] 4 D.L.R. 316 (N.S.S.C.). Under
that approach, all votes cast pursuant to an irregular procedure were held to
be invalid. The failure to comply with a procedural step aimed at determining
entitlement was considered to directly affect the result of the election. In
these cases, even where the elector’s right to vote in the election could have
been proven to the court after the fact, failure to comply with the procedural
safeguards sufficed to discount the votes in question.
[55]
A second approach, sometimes referred to as the
“substantive” approach, emphasizes the substantive right of the elector to
vote. An approach along these lines has been followed in other Canadian
contested election cases: Camsell and Flookes and Long v. Shrake
(1989), 100 A.R. 98 (Q.B.). On this approach, failure to follow a procedural
safeguard is not determinative of whether the result of the election has been
affected.
[56]
In our view, adopting a strict procedural
approach creates a risk that an application under Part 20 could be granted even
where the result of the election reflects the will of the electors who in fact
had the right to vote. This approach places a premium on form over substance,
and relegates to the back burner the Charter right to vote and the
enfranchising objective of the Act . It also runs the risk of enlarging
the margin of litigation, and is contrary to the principle that elections
should not be lightly overturned, especially where neither candidates nor
voters have engaged in any wrongdoing. Part 20 of the Act should not be
taken by losing candidates as an invitation to examine the election records in
search of technical administrative errors, in the hopes of getting a second
chance.
[57]
The substantive approach is recommended by the
fact that it focuses on the underlying right to vote, not merely on the
procedures used to facilitate and protect that right. In our view, an
approach that places a premium on substance is the approach to follow in
determining whether there were “irregularities . . . that
affected the result of the election”. On this approach, a judge should look at
the whole of the evidence, with a view to determining whether a person who was not
entitled to vote, voted. Unlike the “strict procedural” approach, evidence
going to entitlement is admissible. By the same token, direct evidence of a
lack of entitlement is not required. Proof of an irregularity may itself be
sufficient to discount a vote.
[58]
There are two steps to this approach. First, an
applicant must prove that there was an “irregularity”: breach of a statutory
provision designed to establish a person’s entitlement to vote. We do not
understand the minority to suggest otherwise. For example, a breach of s.
148.1 or s. 149 would amount to an “irregularity” because these provisions go
to establishing entitlement.
[59]
Second, an applicant must demonstrate that the
irregularity “affected the result” of the election: someone not entitled to
vote, voted. Where that is established, the vote is invalid, and must be
rejected. Rejecting a vote affects the result of the election in the sense
that it changes the vote count. It is at this second step that our approach
departs from that of the minority.
[60]
An “irregularity” constitutes evidence from
which it may be inferred that a voter was not entitled to vote, because it is a
breach of a procedure designed to establish the voter’s entitlement. As
indicated, proof of an irregularity may itself be sufficient to show that an
invalid vote was cast, thereby affecting the result of the election.
[61]
Under our approach, an applicant who has led
evidence from which an irregularity could be found will have met his or her prima
facie evidentiary burden. At that point, the respondent runs the risk of
having the votes in issue set aside, unless he or she can adduce or point to
evidence from which it may reasonably be inferred that no irregularity
occurred, or that despite the irregularity, the votes in question were
nevertheless valid. For example, where registration certificates cannot be
located and there is a question as to whether they were completed as required,
the respondent may point to evidence showing that they were completed, such as
a list of names of people who voted by registration, or evidence from the
polling officials that registration took place. Or, the respondent may show
that the voters were entitled to vote by reference to their inclusion on a list
of voters in the electoral district.
[62]
Once all of the evidence from both parties is
before the judge, the judge will decide, focusing on substance rather than
form, whether the applicant has met his or her burden of establishing on a
balance of probabilities that someone who voted was not entitled to do so. If
the court is not so satisfied, then the applicant has failed to meet his or her
onus.
C. The Consequences of
Statutory Non-Compliance
[63]
Our approach to contested elections allows a
judge to consider evidence that an individual was entitled to vote on election
day. It has to be remembered that “entitlement” is concerned with age,
citizenship and residence. A judge may look at any evidence that is relevant
to these criteria. This approach best ensures the accuracy of election
results. Some prior jurisprudence in the lower courts suggests that this
approach introduces uncertainty into election results. (See Hogan, at
para. 77.) With respect, this concern is unfounded.
[64]
When a court decides a contested election case
based on alleged “irregularities . . . that affected the
result”, it is faced with uncertainty as to the outcome of an election arising
from allegations of errors in the administration of the election. A contested
election decision, by addressing these alleged errors, is designed to remedy
this uncertainty. An approach allowing for an examination of voter entitlement
bolsters accuracy and confidence that only entitled persons cast ballots.
[65]
Any concern that our approach would result in
the inconsistent application of the Act is unfounded. The minority
suggests that since some entitled voters may be turned away on election day by
election officials properly following procedures in the Act , it is unfair for a
court to allow votes to stand where there was an administrative procedural error
but other evidence that the voter was entitled to vote (para. 167). However,
unlike the rejection of a valid vote, turning away a voter on election day is
not fatal to that person’s right to vote. If at first that voter could not
comply with a procedural requirement, with some additional effort, he or she
can return to the polling station and obtain a ballot. As well, if a person
feels that he or she should be permitted to vote, scrutineers may be available
to help resolve the matter.
[66]
By contrast, if a vote cast by an entitled voter
were to be rejected in a contested election application because of an
irregularity, the voter would be irreparably disenfranchised. This is
especially undesirable when the irregularity is outside of the voter’s control,
and is caused solely by the error of an election official.
[67]
For example, compare the situation of two voters
who arrive at the polling station with inadequate identification. The DRO
personally knows one of the voters, and vouches for him, enabling him to cast a
ballot. The DRO does not live in the polling division, so he has vouched in a
manner not permitted by the Act . However, the voter leaves the polling
station believing that he has cast a valid vote. If a court later rejects the
voter’s vote, he is irreparably disenfranchised, through no fault of his own.
In the case of the second voter, the DRO properly refuses to let her vote
without proper identification. This voter can return to the polling station
later in the day, accompanied by a voucher who lives in the polling division,
and cast her ballot. She has not been disenfranchised.
[68]
Nor will the approach that we endorse encourage
non-compliance with the Act . The election process is open and public. Polling officials work in a public environment
at a polling station where their actions can be observed by other election
officials, candidates or candidates’ representatives and members of the public
present to vote. If there is a reasonable concern about whether a person is
entitled to vote, any polling official, candidate or candidate’s representative
can ask that the person take an oath before voting (s. 144 ).
[69]
In recognizing that mistakes are inevitable,
this Court does not condone any relaxation of training and procedures. The
Commissioner of Canada Elections appointed by the CEO has an obligation to
ensure, as far as reasonably possible, that procedures are followed
(s. 509). Failure to live up to this mandate would shake the public’s
confidence in the election system as a whole and render it vulnerable to abuse
and manipulation.
[70]
The Commissioner of Canada Elections is
responsible for compliance with and enforcement of the Act (s. 509 ). The
Chief Electoral Officer may refer any matter for investigation to the
Commissioner, and, with respect to specific offences, may direct the
Commissioner to “make any inquiry that appears to be called for in the
circumstances”, and the Commissioner shall do so (s. 510 ). Following an
inquiry, the Commissioner may refer the matter to the Director of Public Prosecutions,
who will decide whether to prosecute the offence (s. 511 ). Alternatively,
the Commissioner may enter into an agreement with the offender aimed at
providing for compliance with the Act (s. 517 ). Overturning an election
is but one of several consequences that may flow from the failure of election
officers to follow rules. A declaration that an election is annulled may be
considered the ultimate public consequence of violating provisions of the Act ,
and accordingly should be reserved for serious cases.
D. Should an Election Be
Annulled? The “Magic Number” Test
[71]
To date, the only
approach taken by Canadian courts in assessing contested election applications
has been the “magic number” test referred to in O’Brien (p. 93).
On this test, the election must be annulled if the rejected votes are equal to
or outnumber the winner’s plurality (Blanchard, at p. 320).
[72]
The “magic number” test
is simple. However, it inherently favours the challenger. It assumes that all
of the rejected votes were cast for the successful candidate. In reality, this
is highly improbable. However, no alternative test has been developed. No
evidence has been presented in this case to support any form of statistical
test that would be reliable and that would not compromise the secrecy of the
ballot.
[73]
Accordingly, for the
purposes of this application, we would utilize the magic number test. The
election should be annulled when the number of rejected votes is equal to or
greater than the successful candidate’s margin of victory. However, we do not
rule out the possibility that another, more realistic method for assessing
contested election applications might be adopted by a court in a future case.
E. Summary
[74]
The following approach should be followed in
determining whether there were “irregularities . . . that
affected the result of the election”: An applicant must prove that a
procedural safeguard designed to establish an elector’s entitlement to vote was
not respected. This is an “irregularity”. An applicant must then demonstrate that
the irregularity “affected the result” of the election because an individual
voted who was not entitled to do so. In determining whether the result was
affected, an application judge may consider any evidence in the record capable
of establishing that the person was in fact entitled to vote despite the
irregularity, or that the person was not in fact entitled to vote.
[75]
If it is established that there were
“irregularities . . . that affected the result of the election”,
a court may annul the election. In exercising this discretion, if a court is
satisfied that, because of the rejection of certain votes, the winner is in
doubt, it would be unreasonable for the court not to annul the election. For
the purposes of this application, the “magic number” test will be used to make
that determination.
IV. Application
[76]
To this point, we have concentrated on the legal
framework and principles that govern when a candidate seeks to have an election
annulled on the basis of irregularities that affected the result. We now
consider the application of those principles to the evidence as it relates to
certain of the polling divisions where the application judge set aside votes
(Mr. Opitz’ appeal). We then consider the evidence in relation to those
polling divisions in which the application judge refused to set aside votes
(Mr. Wrzesnewskyj’s cross-appeal).
[77]
Before turning to the evidence of the particular
polling divisions, it is important to observe that in support of his position
that the election should be annulled, Mr. Wrzesnewskyj relied entirely on
circumstantial evidence. There is no direct evidence that any votes, including
the 79 that the application judge set aside, were cast by someone who in fact
was not entitled to vote.
[78]
In the end, for reasons that will become
apparent, we are satisfied that the application judge wrongly set aside at
least 59 votes. Therefore, the magic number test is not met, as the remaining
number of votes invalidated (not more than 20) is not equal to or does not
exceed the plurality of 26 votes.
A. Mr. Opitz’s Appeal
[79]
We would restore 59 votes that the application
judge should not in our view have disqualified. In respect of polls 31 and
426, the application judge set aside 15 votes and 26 votes respectively for
missing registration certificates. At poll 174, he set aside 8 votes for
incorrect recording of vouching. At poll 89, he set aside 10 votes for
unsigned registration certificates.
[80]
Before addressing the evidence poll by poll, we
propose to identify two errors of law made by the application judge in his
analysis. First, at polls 31 and 426, he reversed the onus of proof; second,
at polls 174 and 89, he failed to consider material evidence in reaching his
finding.
[81]
Because of these two legal errors, the findings
of the application judge are not entitled to deference and it is open to this
Court to come to its own conclusion on the validity of the votes cast in these
polling divisions. The evidence in this case is exclusively documentary, and
credibility is not in issue. Our decision to proceed in that fashion finds
support in s. 525(3) of the Act , which requires a contested election
application to proceed “without delay and in a summary way”. To order a new
hearing would cause considerable delay.
[82]
As will be seen, in polls 31, 426 and 174, we
find that the mistakes complained of do not rise to the level of an “irregularity”.
In poll 89, we find that Mr. Wrzesnewskyj has established an
“irregularity” but has not established that it “affected the result”. We would
restore the impugned votes.
(1) Poll
31 (15 Votes at Issue)
[83]
In the poll book at poll 31, the names and addresses
of 86 people are listed on the page entitled “Record
of electors voting by registration certificate”. However, after
the election, only 70 registration certificates were located. Sixteen
certificates could not be found.
[84]
The application judge twice misstated the onus
of proof in making his crucial finding that votes should be discarded for poll
31. He wrote, “I am not prepared to find that on a balance of probabilities
these 16 people certified that they were qualified to vote” (para. 122
(emphasis added)). With respect, that was the wrong question. Applying the
correct onus, he should have asked whether he was satisfied on a balance of
probabilities that these 16 people had not certified that they
were qualified to vote. His formulation reverses the onus, placing it on the
respondent to establish that the voters had certified rather than on the
applicant to show that they had not. The application judge also framed
the onus incorrectly at para. 120 when writing: “For me to conclude that
these 16 people certified themselves as qualified to vote, the finding
would have to be made” (emphasis added).
[85]
These are not isolated instances of misstating
the test. In the context of assessing the validity of votes at poll 426, the
application judge wrote, “The question is . . . whether, in the
circumstances, I am prepared to find that these 33 people certified that they were
qualified to vote” (para. 113 (emphasis added)) and “I am not prepared to find
that, on a balance of probabilities, these 33 people declared that they were
qualified to vote” (para. 115 (emphasis added)). And again when considering
the invalidity of a vote with an unsigned registration certificate in poll 174,
the application judge stated: “In the absence of any indication that the question
of qualification was raised, I am not prepared to find that citizenship was
certified” (para. 126 (emphasis added)).
[86]
On these five occasions in his reasons for
judgment, when making crucial findings of fact as to the validity of the votes,
the application judge misstated the onus of proof. Instead of asking whether
Mr. Wrzesnewskyj, the applicant, had satisfied his onus of establishing an
irregularity, the application judge asked instead whether Mr. Opitz had
established that there was no irregularity, thereby effectively shifting the
burden of proof.
[87]
Because the application judge misstated the onus
of proof a number of times in the course of his analysis, we cannot be
confident that he applied the correct onus in arriving at his findings: R.
v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 85-86. Overturning
an election is a very serious matter. In order to uphold the findings of the
application judge, we must be satisfied that he not only appreciated which of
the parties bore the onus, but also that he applied the correct onus in
arriving at his critical findings of fact. We cannot be so satisfied.
[88]
In fairness, we recognize that the application
judge stated the onus of proof correctly on occasion. However, in view of the
five occasions when he did not — in the context of making crucial findings of
fact — we cannot be confident that these were only slips of language: Couture,
at para. 85.
[89]
We turn now to our assessment of the evidence at
poll 31. Mr. Wrzesnewskyj must first establish the existence of an
“irregularity” — that is, non-compliance with the Act that
goes to entitlement. The 16 missing registration certificates at poll 31 give
rise to two possibilities, one being that the certificates were never
completed, the other that the certificates were completed but went missing
after the election. If Mr. Wrzesnewskyj could establish that the certificates
were never completed, this would amount to an “irregularity”. There would be
non-compliance with s. 161(4) of the Act which requires that a person not
listed on the OLE who wishes to vote on election day must sign a completed
registration certificate. This particular non-compliance would go to
entitlement because within a registration certificate is a declaration of
citizenship and age signed by the elector.
[90]
However, we are not satisfied that Mr.
Wrzesnewskyj has established an “irregularity”. He relied on three pieces of
evidence. First, the registration certificates could not be located. Second,
the poll book pages recording those who took oaths and those who vouched were
not filled in. Third, the 16 people were not added to the FLE whereas,
normally, when the returning officer receives the registration certificates, he
updates the OLE and the CEO updates the FLE accordingly.
[91]
The evidence relied on by Mr. Wrzesnewskyj falls
short of the mark. That the certificates were missing and that the FLE was not
updated are also consistent with the explanation that the completed
certificates were lost after the election. If the certificates never arrived
in the hands of the returning officer, he could not have used them to update
the OLE and the FLE would not have been updated either. This alleged third
deficiency is tied into the first; it is not an independent basis for finding
that the registration certificates were never completed. That the pages for
oaths and for vouching were blank is consistent with all 16 people who voted by
registration certificate providing photographic identification rather than
establishing their addresses through vouching.
[92]
There was evidence that favoured the second
explanation — that the certificates existed but were misplaced after
the election. Seventy of the 86 certificates were found. The names and
addresses of the 16 people at issue are handwritten in the poll book,
interspersed among the other 70 people whose certificates were found. This is
an indication that the 16 certificates were in fact completed. A tally of the
total number of registration certificates (86) is repeated on the page which
summarizes the results of the election. On this page, the DRO and poll clerk
signed below the statement: “I have verified that the number of electors who
voted by Registration Certificate (line (2)) [the number 86 appears on
line (2)] corresponds to the number of Registration Certificates . . . inserted
in the large white Registration and/or Correction Certificates Envelope”.
[93]
Considering this evidence in the context of the
whole of the evidence, we are unable to find, on balance, that the registration
certificates were not completed. Hence, Mr. Wrzesnewskyj has failed to
establish an “irregularity” concerning any of the 16 votes.
[94]
Ironically, for 14 of the 16 impugned voters,
there is positive proof that they were indeed entitled to vote. The
application judge relied on this direct proof for 1 of the 14 electors (para.
123). Hence, he only discarded 15 of the 16 votes. In fairness, had the
direct proof relating to the other 13 voters been brought to his attention, we
are satisfied that the application judge would have allowed the votes.
[95]
There is evidence that 13 more of the 16 voters
in question were on a list of electors in Etobicoke Centre, three on the list
for poll 31 and 10 on the lists for other polling divisions. This information
was in the evidence before the application judge (R.F. (Mr. Opitz), at para.
45). A chart prepared by Elections Canada matches the names and addresses of
13 electors to names on these lists of electors. Two voters were on a list of
electors for poll 28, four on a list for poll 29, two for poll 30, three for
poll 31, and two for poll 33. This information comes from an independent
source and Mr. Wrzesnewskyj does not challenge its reliability. To the
contrary, in a separate chart, created by Mr. Wrzesnewskyj, these 13 persons are
listed and beside their identifier is the following notation: “Elector on the
Official List of Electors: Yes” (A.F. (Mr. Wrzesnewskyj), at App. C). In
accordance with s. 149, all but the three voters ordinarily resident in polling
division 31 needed a registration certificate in order to vote at polling
station 31. However, the presence of the 10 voters on an electoral list for
another polling division in Etobicoke Centre constitutes proof of age,
citizenship and residence within that polling division (and therefore the
electoral district of Etobicoke Centre).
[96]
The basis upon which our colleagues would
restore these 10 votes is, in our respectful view, inconsistent with their
emphasis on the plain words of s. 149 of the Act and their concern about certainty
at the time the voter casts his ballot (paras. 165-66). The plain
language of s. 149 provides that “[a]n elector whose name does not appear on
the official list of electors in his or her polling station shall not be
allowed to vote unless . . . the elector gives the deputy returning
officer a registration certificate”. It is not clear why, following the
minority’s approach, under which a voter is not entitled to vote unless all
procedural safeguards are followed, it is sufficient that a voter be on the
list of electors at another polling division (para. 165). Furthermore, to
consider the lists of electors from other polling divisions — while consistent
with our approach — is contrary to our colleagues’ position that to ensure
certainty in the electoral process, a voter must establish his entitlement
before receiving and casting a ballot (para. 166). The 10 voters’ names
were not on the OLE for poll 31. Information from OLEs of other polling
divisions was not before the DRO at poll 31 at the time the ballots were cast.
Information from these other lists only came to light during the contested
election application, when brought before the application judge.
[97]
We would not invalidate any of the 16 votes at
poll 31. For 14 voters there is direct evidence of their entitlement to
vote. We have restored the remaining 2 votes for the reasons stated above.
Deducting the one vote already allowed by the application judge, the total
number of votes restored on appeal is 15.
(2) Poll
426 (26 Votes at Issue)
[98]
At poll 426, the poll book page “Record of electors voting by registration
certificate” lists 33 names with no addresses. After the election,
none of the 33 registration certificates could be found. The application judge
noted that 7 of the 33 electors whose votes were at issue were on the OLE and
thus the registration certificates were superfluous, and need not have been
completed. Their presence on the OLE established their age and citizenship.
The application judge allowed those 7 votes to stand.
[99]
For the remaining 26 voters, the application
judge reversed the onus of proof on two occasions when making his crucial
findings on the validity of the votes. He wrote, first: “The question
is . . . whether, in the circumstances, I am prepared to find
that these 33 people certified that they were qualified to vote” (para.
113 (emphasis added)). On the second occasion, he wrote: “I am not prepared to
find that, on a balance of probabilities, these 33 people declared that they were
qualified to vote” (para. 115 (emphasis added)).
[100]
As with poll 31, Mr. Wrzesnewskyj has not
established that there was an “irregularity” with respect to the 26 voters.
The absence of registration certificates raises the question of whether the
certificates were in fact completed. The burden rested on Mr. Wrzesnewskyj to
establish that the certificates were not filled out. He relied on four pieces
of evidence. First, there were no registration certificates. Second, another
poll book page which should serve to tally up the number of people who voted by
registration certificate was not completed. Third, the poll book pages
recording those who took oaths and those who vouched were blank. Fourth, the
33 people were not added to the FLE.
[101]
As we stated with poll 31, that the certificates
were missing and that the FLE was not updated are also consistent with the
explanation that the completed certificates were lost after the election. If
the certificates never arrived in the hands of the returning officer, he could
not have used them to update the OLE and the CEO could not have updated the FLE
with that information. This alleged fourth discrepancy is tied into the first;
it is not an independent basis for finding that the certificates were not
completed. That the pages for oaths and for vouching were blank is consistent
with these people providing photographic identification rather than
establishing their addresses through vouching.
[102]
There was evidence that the registration
certificates had been completed but misplaced after the election. First, the
poll book listed the names of 33 persons having completed certificates.
Second, the DRO, when asked eight months after the election, said she thought
she had completed the 33 certificates. An email dated January 4, 2012, from
the respondent Allan Sperling, the returning officer for Etobicoke Centre, to
Trevor Knight, a lawyer at the Office of the CEO, reads:
I spoke to . . . the DRO at 426. She
said that 33 registrants sounds about right and they did not record addresses
in the poll book because this was a stand-alone poll (a senior’s residence) so
everyone lived there (which they checked).
She
did say she thought they completed the registration certificates and returned
them as per process, and added she has done this many times, so knows the
process. She is going to talk to her PC [poll clerk] who is usually her
partner on election day to see if she can remember anything. [J.C.R., vol. 6,
at tab 53]
[103]
The application judge placed little weight on
the DRO’s comments:
The
comment that the deputy returning officer “thought” the forms were completed is
not definitive, and the statement that “33 sounds about right” is too general
to provide much confidence as to whether these documents were completed. [para.
115]
With respect, we see the
matter differently. Any vagueness in the DRO’s evidence is consistent with her
being asked to recall something that occurred eight months earlier. Her
recollection provides direct evidence that she knew she had to complete
registration certificates.
[104]
Mr. Opitz argues that, to find that the
registration certificates were not completed would require the following
assumptions: (a) the DRO and the poll clerk ignored their training; (b) the DRO
did not know or ignored that an unregistered voter must complete a registration
certificate; and (c) despite not following the registration procedure, the DRO
or poll clerk still recorded the names of these 26 people in the list of those
who voted by certificate. In light of the DRO’s comments in the email and the
evidence that the poll clerk filled out the relevant poll book page, these
three assumptions are improbable, to say the least.
[105]
Considering the evidence as a whole, Mr.
Wrzesnewskyj has failed to satisfy us that there was an irregularity. We would
restore these 26 votes.
(3) Poll
174 (8 Votes at Issue)
[106]
At poll 174, eight persons on the OLE did not
have identification and required vouching to establish their identity. The
page listing vouchers is completed with eight names, but the page that
should list vouchees is not filled in. However, next to the name of
each voucher is an indication of the relationship of the voucher to the
vouchee (e.g., “spouse” or “mother”).
[107]
Not recording the names of vouchees contravenes
s. 162 (f) of the Act . However, there is a distinction between proper
vouching and proper record-keeping of vouching. Vouching is a means of
establishing identity and residence. Vouching establishes the relation between
the person who is physically present at the polling station and that person’s
attributes of age, citizenship and residency. Improper vouching can
amount to an “irregularity” if it means that identity and residence were not
established, which go to entitlement. By contrast, incorrect record-keeping
of vouching, on its own, cannot amount to an “irregularity”.
[108]
Based on the evidence, it can easily be inferred
that vouching was properly conducted. There were persons on the OLE who, in
terms of last names, addresses and ages, matched the familial relationship in
question. It is easy to identify the full names of the vouchees from the
information noted. Initials have been used in these reasons because of a
confidentiality order applicable to names of voters. To give one example, the
page of vouchers indicates that “L.F.” vouched for her spouse. The page for
vouchees is blank, and so we do not know from that page of the poll book the
name of her spouse. However, the OLE contains only two persons with the same
last name: L.F. and A.F. with the same address, born in 1935 and 1932
respectively. It is a reasonable inference that A.F. is the spouse in
question.
[109]
The application judge disregarded this evidence,
calling it a “forensic analysis” (para. 146). With respect, such labelling
does not justify a refusal to take account of relevant evidence and draw
reasonable inferences from it. The identification of the vouchees is easily
determined on the evidence before the Court. Mr. Wrzesnewskyj has not
satisfied us that there was an irregularity. We would restore these eight
votes.
(4) Poll
89 (10 Votes at Issue)
[110]
On a registration certificate, an elector is
required to sign in Box 5 after the following declaration:
I,
the person whose name appears in Box 1, certify that I am a Canadian citizen,
18 years of age or over on polling day and have been ordinarily resident at the
address appearing in box 2. . . . I certify that the information
provided on this form is accurate.
An election official must sign
below in Box 6. In poll 89, the official signed the 10 certificates in
the place where the voter was supposed to sign. There were no voter
signatures.
[111]
This is the one instance where Mr. Wrzesnewskyj
has established an “irregularity”: there is no signature, contrary to s. 161(4)
of the Act , and this goes to entitlement to vote since the declaration serves
to establish age and citizenship. From this, the application judge concluded
that he should reject the 10 votes with unsigned certificates:
Any understanding of the registration
certificate should begin with a reading that is consistent with what is present
on its face. . . . In my mind, it is more likely that the polling
official . . . did not deal with citizenship. In the absence of any
indication that the question of qualification was raised, I am not prepared to
find that citizenship was certified. . . .
. . .
There is nothing to suggest that the prospective voters were asked to, or did,
declare they were qualified to vote. [paras. 126-27]
[112]
With respect, we believe the application judge
stopped short of the mark. In our view, he focused exclusively on the absence
of voters’ signatures and failed to consider other evidence from which it could
reasonably be inferred that the 10 voters were entitled to vote. The election
official completed each registration certificate in full. On each certificate,
he took down the elector’s first and last name, full address, and date of
birth. He signed and dated the certificate. He rewrote all 10 names and
addresses on the poll book page “Record
of electors voting by registration certificate”.
[113]
The application judge did not consider this
evidence. In our view, he erred in failing to do so. Accordingly, his
findings are not entitled to deference.
[114]
This is not a situation in which the
certificates do not have any signature on them. The 10 misplaced signatures
are consistent with a clerical mistake. The mistake was outside the voters’
control. From the election official’s signature, it is reasonable to infer, in
the absence of evidence to the contrary, that he knew the prerequisites that
needed to be met for a voter to register and was satisfied that they were met
in each case.
[115]
Absent evidence of fraud or corruption, we find
it highly improbable that the election official would put his signature on
completely filled out registration forms without being satisfied of the voters’
entitlement to vote, on 10 separate occasions. We would restore these 10
votes.
[116]
Moreover, one of the voters with an unsigned
registration certificate is on the OLE for poll 89. That voter did not need to
complete a registration certificate at all. Her presence on the OLE
established her age and citizenship.
(5) Conclusion
on Mr. Opitz’s Appeal
[117]
We would allow Mr. Opitz’s appeal and restore 15
votes at poll 31, 26 votes at poll 426, 8 votes at poll 174 and 10 votes at
poll 89. The total restored is 59 votes. This leaves 20 votes that have not
been restored. Under the magic number test, 20 votes is less than the winner’s
plurality of 26. It is not necessary to discuss the remainder of the votes
rejected by the application judge because, as we explain below, we would
dismiss Mr. Wrzesnewskyj’s cross-appeal. Although we have not discussed the
remaining 20 votes in these reasons, we have considered them and we have no
reason to believe that any of the 20 voters were not in fact entitled to vote.
B. Mr. Wrzesnewskyj’s Cross-Appeal
(1) Incorrect
Polling Division (Polls 16 and 31)
[118]
Mr. Wrzesnewskyj alleges that the application
judge should have disqualified votes where the elector voted within the proper
electoral district, but in the incorrect polling division. At issue are one
vote in poll 16 and 66 votes in poll 31. The electors voted by registration
certificate and listed an address within Etobicoke Centre, but outside the
polling divisions for polls 16 and 31.
[119]
Voting in the wrong polling division has no
effect on the result of the election; the ballot boxes from each polling
division are aggregated in the overall tally for the electoral district. It is
not comparable to voting in the incorrect riding, for a different member of
Parliament. Polling divisions exist for administrative and practical
efficiency on election day. We see no reason to disturb the application
judge’s finding that these votes should stand.
(2) Address
Oaths Requiring Vouching (Polls 16 and 21)
[120]
Mr. Wrzesnewskyj argues that the application
judge should have disqualified six votes at poll 16 and six at poll 21 where
the poll books do not record which type of oath was taken, contrary to s. 162 (f)
of the Act . On the page in each poll book for electors who swore oaths,
alongside each name is the notation “no address ID” or no notation at all. Mr.
Wrzesnewskyj argued that “no address ID” meant that each voter did not have
identification and thus needed to be vouched for, pursuant to s. 143(3) . The
absence of vouchers’ names would imply vouching had not been performed.
Because vouching is a means of identification, this would be non-compliance
going to entitlement.
[121]
The application judge found that it was not
possible to “so carefully parse the words ‘no address ID’ to ascertain with
certainty the circumstances in which the oath was required” (para. 138). On
its face, the poll book could reflect the circumstance contemplated by s.
143(3.2), where a “candidate or candidate’s representative who has reasonable
doubts concerning the residence of an elector referred to in that subsection
may request that the elector take the prescribed oath”. No vouching would then
be needed. We see no basis for interfering with the application judge’s
finding.
(3) Registration
Certificate Not Completed (Poll 89)
[122]
In poll 89, two voters were not on the OLE, and
thus required a registration certificate to vote. However, no certificates
were found and they were not listed on the page for electors voting by
registration certificate. This suggests that no registration certificates were
completed.
[123]
However, there is evidence that the voters were
entitled to vote. Both voters were listed in the poll book under “Record of Electors Requiring an Oath”
and are shown as having been vouched for by relatives, with names and addresses
provided. The oath sworn to by the vouchee reads:
OATH OF PERSON
VOUCHED FOR
. . .
You swear or solemnly affirm that:
- you are (state name) of (state address);
- you have attained 18 years of age;
- you are a Canadian citizen;
- you are a resident of this polling
division;
- you have not already voted at this
electoral event
(If sworn, add SO HELP YOU GOD)
(Sample
Poll Book, at p. 15, see J.C.R., vol. 1, at tab 12.)
[124]
The application judge was satisfied that both
voters had sworn this oath. We have no reason to
question this finding.
(4) No
Voucher Name, Only Voucher’s Relationship to Vouchee (Polls 89 and 400)
[125]
Two voters in poll 89 and two voters in poll 400
are on the OLE but are also on the list of vouchees. That can only mean that
they did not have sufficient identification. For each, the names of their
respective vouchers are missing. Instead of a name, the voucher is identified
by his or her relationship to the vouchee (e.g., mother, daughter-in-law)
followed by “ditto marks” to indicate they have the same address as the
vouchee. The scenario is virtually identical to that at poll 174 addressed
earlier, with the only difference being that here it is the name of the voucher,
and not of the vouchee, that is missing. Mr. Wrzesnewskyj submits that
the absence of names amounts to an irregularity. This issue was not raised
before the application judge. For the same reasons as we gave for poll 174
above, we find that this is not an irregularity. We dismiss Mr. Wrzesnewskyj’s
argument with respect to these four voters.
(5) Missing
Vouchers (Poll 400)
[126]
Mr. Wrzesnewskyj alleges the application judge
should have discounted six votes at poll 400. Page 31 of the poll book
indicates: “The total number of electors who were vouched for at this polling
station is: 16”. But p. 23 shows only 10 vouchers. The application judge
found that the remaining six people swore oaths that did not require vouching,
such as for error in the spelling of their name on the OLE or in order to
assist another elector at the poll booth. Implicit in this is that the number
“16” was a clerical error on the poll clerk’s behalf: 16 people swore oaths,
but only 10 were in the context of vouching. We see no reason to interfere.
(6) Voters
Alleged to Have Voted More Than Once (Poll 426)
[127]
Mr. Wrzesnewskyj submits that six electors at
poll 426 may have voted twice. Six names on the list of electors who voted by
registration certificate match six names on the OLE. On the OLE, these six
names are crossed off (meaning they were given a ballot) and checked off
(meaning they voted). Their presence on the registration certificate list
means they were given a ballot. Mr. Wrzesnewskyj argued that each of these six
voted once by registration, and once by “enumeration”. The number of people
checked off on the OLE (173) plus the number voting by certificate (33) added
up to the total number of ballots (206). This would effectively count these
six persons twice and, in Mr. Wrzesnewskyj’s submission, supports that those
six had voted twice.
[128]
At first instance, Mr. Wrzesnewskyj made a
similar argument, saying that there were five electors on both lists.
The application judge identified five instances on the OLE where a name was
crossed off but not checked off. He concluded that the most logical
explanation was that the election official simply neglected to check off
these other five people as having voted (para. 89). This increased from 173 to
178 the number of persons who voted by enumeration. This meant there was no
discrepancy in the count: people voting from the OLE (178) plus electors voting
by registration (33) minus the five duplicates added to the total (206).
Implicit in this explanation was that these five had voted by registration but
the polling official had later found them on the OLE and crossed them off for
good measure. The application judge concluded there was no evidence of
double-voting. We would not disturb this finding of fact.
[129]
Mr. Wrzesnewskyj now submits that there are six
electors on both lists instead of five. The application judge only addressed
the five that Mr. Wrzesnewskyj raised before him. Also within poll 426, Mr.
Wrzesnewskyj raises another case where it appears a voter voted twice. On the
list of 33 persons who voted by registration certificate, the same handwritten
name appears twice: once as the 11th person, and once as the 31st person.
[130]
In light of the fact that we have restored 59
votes, and that only 20 votes remain disqualified by the application judge, we
need not consider these two allegations of double-voting. Assuming they can be
raised for the first time on appeal, even if sound, they are not enough for Mr.
Wrzesnewskyj’s application under s. 524 to succeed.
(7) Conclusion
on Cross-Appeal
[131]
For the reasons given, we would dismiss Mr. Wrzesnewskyj’s
cross-appeal.
V. Conclusion
[132]
As indicated, we find it unnecessary to consider
whether the balance of 20 votes rejected by the application judge should be
restored. Even if these votes were properly rejected, they are fewer in number
than the plurality of 26 votes. Had all 20 persons voted for Mr. Opitz,
discounting them would not have been sufficient for Mr. Wrzesnewskyj to be
successful in the election in Etobicoke Centre. For these reasons, we would
allow the appeal, dismiss the cross-appeal and dismiss Mr. Wrzesnewskyj’s
application under s. 524 of the Act .
[133]
In view of the circumstances of this case, there
will be no award of costs.
VI. Motion to Adduce Fresh
Evidence
[134]
The CEO and the returning officer brought a
motion for directions, seeking to adduce fresh evidence, pursuant to s. 62(3)
of the Supreme Court Act, R.S.C. 1985, c. S-26 , and Rules 3 and 47
of the Rules of the Supreme Court of Canada, SOR/2002-156. The fresh
evidence is a chart compiled by Elections Canada employees, based on the NROE.
The employees matched handwritten names in the poll books of polls 426, 89 and
31 to names in the NROE. The NROE is periodically updated by reference to the
FLE and to various governmental databases. Evidence from an NROE may be
relevant in a contested election application. Presence of a name on the NROE
is proof of that person’s citizenship and age: s. 44 of the Act . Evidence from
the NROE can be helpful to the application judge in assessing
“irregularities . . . that affected the result of the election”
because it serves as evidence of a voter’s entitlement.
[135]
Mr. Wrzesnewskyj objected to the introduction of
the new evidence. As the proposed evidence could only assist Mr. Opitz, given
our conclusion, we need not consider it. For that reason, we would dismiss the
motion to adduce fresh evidence.
The
reasons of the Chief Justice and LeBel and Fish JJ. were delivered by
The Chief Justice (dissenting) —
I. Introduction
[136]
The issue in this case is whether the federal
election in the riding of Etobicoke Centre should be annulled because of votes
cast by individuals who were not entitled to vote under the Canada Elections
Act, S.C. 2000, c. 9 (“Act ”).
[137]
An election outcome may be contested by a
candidate on the basis of “irregularities . . . that affected the result of the
election” (s. 524(1) (b) of the Act ). Borys Wrzesnewskyj made an
application under s. 524 of the Act after being defeated in the federal
election of May 2, 2011, by a margin of 26 votes. The application judge
declared the election null and void, finding that 79 of the votes cast were
irregular and affected the result of the election. Because the number of
irregular votes exceeded the winner’s plurality of 26 votes, he held that the
election could not stand (2012 ONSC 2873, 110 O.R. (3d) 350).
[138]
I would dismiss the appeal. The election result
in Etobicoke Centre should be annulled because of “irregularities . . . that
affected the result of the election”. The irregularities in this case
concerned ballots cast by individuals who were not entitled to vote.
[139]
An individual must be entitled to vote before
casting a ballot for the Member of Parliament for the riding where she is
ordinarily resident. The Act sets out a comprehensive scheme defining
entitlement to vote: ss. 6 , 143(2) , (3) , 148.1 , 149 and 161 . In general, there
are three prerequisites to entitlement to vote: qualification, registration and
identification. First, an individual must be qualified to vote, in
terms of citizenship and age. Second, she must be registered to vote,
generally either by being on the list of electors or filing a registration
certificate. Third, she must be identified at the polling station in a
way permitted under the Act , whether by providing appropriate pieces of
identification or by taking an oath and being vouched for by another elector.
There are different ways in which the requirements of entitlement to vote under
the Act can be fulfilled, but if any of the prerequisites of entitlement
are not satisfied, an individual is not permitted to cast a ballot.
[140]
Whether a person is entitled to vote is a
distinct question from whether she is qualified to vote. All Canadian citizens
who are 18 years or older on election day are qualified electors: s. 3 of the
Act . Being a qualified elector is a necessary but not sufficient condition for
entitlement to vote. Qualified electors must fulfill all the prerequisites of
an entitlement procedure under the Act before voting. These procedures ensure
that election officials have verified the qualifications and identity of
prospective voters before they cast their ballots. They are fundamental
safeguards for the integrity of the electoral system.
[141]
Votes cast by persons not entitled to vote are
irregularities that can affect the result of the election under s. 524(1) (b)
of the Act . If the number of such irregular votes is equal to or exceeds the
winner’s plurality, then the result of the election is affected and the
election should be annulled. This is known as the “magic number” rule. In the
present case, the winning candidate in Etobicoke Centre, Ted Opitz, had a
plurality of 26 votes. Therefore, the application judge should have annulled
the election only if the applicant established that 26 or more ballots were
cast by non-entitled voters. The onus was on the applicant to establish the
existence of irregularities sufficient to annul the election.
[142]
While the application judge in this case
improperly set aside some votes, he did not err with respect to 65 ballots cast
by persons not entitled to vote. As this exceeds the plurality of 26 votes,
under the “magic number” rule the appeal should be dismissed and the election
annulled.
[143]
I would also dismiss the motion for fresh
evidence.
II. Analysis
A. Applicable Principles of Statutory Construction
[144]
The overriding principle of statutory
interpretation is that “the words of an Act are to be read in their entire
context and in their grammatical and ordinary sense harmoniously with the
scheme of the Act , the object of the Act , and the intention of Parliament” (E. A. Driedger, Construction of Statutes
(2nd ed. 1983), at p. 87, quoted in Rizzo & Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27, at para. 21). The best indication of Parliament’s
intent is found in the language of the statutory provisions: R. v. Knott,
2012 SCC 42, [2012] 2 S.C.R. 470, at para. 54.
[145]
The words of the statute must be interpreted
with a view to the objectives of the Act . Courts have considered different
aspects of the purpose of the Act but none has identified the broad and
overarching purpose of the legislation: see, e.g., Harper v. Canada
(Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827; Henry v.
Canada (Attorney General), 2010 BCSC 610, 7 B.C.L.R. (5th)
70, at para. 139. The overarching purpose of the Act
is to ensure the democratic legitimacy of federal elections in Canada. This
broad purpose encompasses several discrete objectives. The first is to
enfranchise individuals who are qualified to vote: Haig v. Canada,
[1993] 2 S.C.R. 995, at p. 1058 (per Cory J.). A second and
complementary objective is to ensure that people who are not qualified to vote
do not do so: see Haig, at p. 1027, per L’Heureux-Dubé J. A third objective is to promote efficiency and certainty in the
electoral process. In considering these objectives, we must be careful to respect the words chosen
by Parliament: Canada (Canadian Human Rights
Commission) v. Canada (Attorney General), 2011 SCC
53, [2011] 3 S.C.R. 471, at para. 33.
B. The Meaning of “Irregularities . . . That Affected the
Result of the Election” Under Section 524(1)(b) of the Act
[146]
Any elector or any candidate in an electoral
district may apply to a competent court to contest an election on the grounds
that “there were irregularities, fraud or corrupt or illegal practices that
affected the result of the election” (s. 524(1)(b)). If the elements of
s. 524(1)(b) are established, a court may annul the election (s.
531(2) ).
[147]
In the ordinary sense of the word, something is
“irregular” when it is “[n]ot in conformity with rule or principle” (The
Oxford English Dictionary (2nd ed. 1989), vol. VIII, at p. 93). This
suggests that under the Act , an election may be set aside as a result of
non-compliance with the provisions of the Act , even in the absence of fraud or
corrupt or illegal practices.
[148]
The objective of efficiency and certainty in the
electoral process suggests that there ought to be strict compliance with the
requirements of the Act . The objective of ensuring that those not qualified to
vote not do so pulls in the same direction. On the other hand, the objective
of enfranchisement suggests that “irregularities” should not be interpreted in
a technical or trivial way that improperly disenfranchises voters. The votes
of Canadian citizens 18 years of age or over should not be set aside over
trifles: Beamish v. Miltenberger, [1997] N.W.T.R. 160 (S.C.), at para.
33; Wright v. Koziak, [1981] 1 W.W.R. 449 (Alta. C.A.); Morgan v.
Simpson, [1974] 3 All E.R. 722 (C.A.). Based on the language and
purposes of the Act , I conclude that “irregularities” under s. 524(1) (b)
should be interpreted to mean failures to comply with the requirements of the
Act , unless the deficiency is merely technical or trivial.
[149]
Only irregularities that “affected the result of
the election” permit the annulment of the election under s. 531(2) .
Irregularities must be of a type that could affect the result of the
election, and impact a sufficient number of votes to have done so. An
irregularity resulting in a vote being cast that should not have been is of a
type that could affect the result of the election. To have actually
affected the result of the election, the number of such votes must be equal to
or exceed the winning candidate’s plurality. If the irregularities are of this
type and impact this number of votes, then a court can and should annul the
election under s. 531(2) . This is known as the “magic number” rule. (See Beamish,
at para. 18; O’Brien v. Hamel (1990), 73 O.R. (2d) 87 (H.C.J.), at para.
34; Blanchard v. Cole, [1950] 4 D.L.R. 316 (N.S.S.C.), at p. 320; Wright,
at pp. 458 and 465-66; Morgan, at p. 727.)
[150]
The critical question raised in this case is the
following: What kinds of irregularities result in a vote being cast that should
not have been? The answer lies in the principle of entitlement to vote, which
is a central pillar of our electoral system.
C. Entitlement to Vote
[151]
Every electoral system must strike a balance
between enabling those who have the constitutional right to vote to do so, and
ensuring that those who do not have that right are not allowed to vote. The
formal system of entitlement is our mechanism for striking the right balance
between these two valid concerns, while ensuring the efficiency and certainty
of the electoral process. It aims to safeguard both the right to vote and the
integrity of elections.
(1) Prerequisites to Entitlement to Vote
[152]
In general, there are three prerequisites to
entitlement to vote under the Act . These prerequisites concern qualification,
registration and identification as a voter. Only when all of these elements
are met is a person entitled to vote for the Member of Parliament for the
riding where she is ordinarily resident.
(a) Qualification
[153]
The first prerequisite of entitlement to vote is
qualification. This means that the voter must be a Canadian citizen and 18
years of age or older. Section 3 of the Act defines a qualified elector as
“[e]very person who is a Canadian citizen and is 18 years of age or older on
polling day”. Section 6 of the Act sets out the qualification prerequisite of
entitlement to vote:
6. Subject
to this Act , every person who is qualified as an elector is entitled to have
his or her name included in the list of electors for the polling division in
which he or she is ordinarily resident and to vote at the polling station for
that polling division.
[154]
The words “[s]ubject to this Act ” make clear
that entitlement to vote is also conditioned on other prerequisites to
entitlement found in the Act . In order to be given a ballot and permitted to
vote on election day, it is not enough that a person be qualified. Entitlement
to vote goes beyond qualification: McMechan v. Dow (1968), 67 D.L.R.
(2d) 56 (Man. Q.B.), at p. 62; O’Brien.
(b) Registration
[155]
The second prerequisite of entitlement to vote
is registration, through (a) inclusion on the list of electors in the polling
division where the voter is ordinarily resident or (b) filing a registration
certificate. Other exceptional voter registration procedures exist under the
Act , but these are not applicable in this case and will not be dealt
with here. The Act makes clear that a voter shall not be allowed to
vote unless one of these registration procedures is satisfied.
[156]
Section 149 of the Act provides:
149. An
elector whose name does not appear on the official list of electors in his or
her polling station shall not be allowed to vote unless
. . .
(c) the
elector gives the deputy returning officer a registration certificate described
in subsection 161(4) .
[157]
Inclusion on the list of electors is one way
that an individual can satisfy the registration prerequisite of entitlement to
vote. Prior to election day, election officials prepare a list of electors for
each polling division, listing qualified electors who are ordinarily resident
in that polling division (s. 106). These lists are then used by election
officials at the polling station for each polling division on election day. If
a person is on the list of electors, then s. 149 is no barrier to voting
entitlement.
[158]
If a person is not on the list of electors, s.
149 (c) provides an alternative means of registering to vote: filing a
registration certificate. A person is entitled to vote despite not being on
the list of electors if she satisfies the registration certificate procedure.
[159]
The registration certificate procedure under s.
149 (c) requires a prospective voter to prove her identity and residence,
and to sign a declaration that she is a Canadian citizen 18 years of age or
older (s. 161). The declaration on the registration certificate states:
I,
the person whose name appears in Box 1, certify that I am a Canadian citizen,
18 years of age or over on polling day and have been ordinarily resident at the
address appearing in box 2. . . . I certify that the information provided on
this form is accurate.
If a person voting by
registration certificate does not sign this declaration, she has not
established her age and citizenship as required by the Act . The declaration is
therefore a vital prerequisite of entitlement to vote. Upon completing the
registration certificate, a person is deemed to be included on the list of
electors (s. 161(5) ).
(c) Identification
[160]
The third prerequisite of entitlement to vote is
identification. A prospective voter must prove her identity and residence at
the polling station in a way permitted by the Act . Section 148.1(1) of the Act
states:
148.1 (1) An elector who fails to prove his or her identity and residence
in accordance with subsection 143(2) or (3) or to take an oath otherwise
required by this Act shall not receive a ballot or be allowed to vote.
[161]
A person can prove her identity and residence in
two ways: (a) providing the necessary piece or pieces of identification (such
as a driver’s licence); or (b) taking a prescribed oath and being vouched for
by another person in the manner set out in the Act . These two options are
available both for individuals who are on the list of electors and for
individuals voting by registration certificate (ss. 143(2) , (3) and 161(1) ).
[162]
If the oath and vouching procedure is used, the
person vouching for the prospective voter must (i) be on the list of electors
for the same polling division, (ii) provide the required piece or pieces of
identification to prove his identity and residence, (iii) state a prescribed oath,
(iv) not have already vouched for another elector in the election, and (v) not
have herself been vouched for in that election (ss. 143(3), (5), (6), 161(1)(b),
(6) and (7)). If these conditions are not met, the vouching is invalid and the
prospective voter’s identity and residence have not been proved in a manner
permitted by the Act .
[163]
Only if all of the prerequisites to entitlement
to vote are met is a person permitted to cast a ballot in a Canadian federal
election. The Act expressly states that a person who is not entitled to vote
shall not receive a ballot or be allowed to vote, even if he is qualified to
vote, in the sense of meeting the citizenship and age requirements (ss. 148.1
and 149 ). The constitutionality of these entitlement provisions is not at
issue in this appeal, so this Court must adhere to the unambiguous directions
from Parliament as to the prerequisites to exercising the right to vote: Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, at
para. 29; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002]
2 S.C.R. 559.
[164]
My colleagues, with respect, merge the concepts
of qualification and entitlement. They take the position that everyone who is
qualified to vote and ordinarily resident in the electoral district is entitled
to vote. Thus, a voter who is not on the electoral list and has not filed a
registration certificate (s. 149 ) can be later held to have been “entitled” to
vote if he was qualified to vote and ordinarily resident in the electoral
district. I cannot accept this view.
[165]
First, as discussed, in terms of registration,
the plain words of the Act condition entitlement on either being on the
list of electors or filing a registration certificate (s. 149 ). Sections 6 ,
148.1 and 149 together describe prerequisites of entitlement to vote. Both ss.
148.1 and 149 state that, unless their respective conditions are satisfied, the
elector “shall not” be allowed to vote. These conditions require, in
addition to qualification, fulfillment of the identification and registration
prerequisites of entitlement to vote.
[166]
Second, the objective of certainty in the
electoral process requires that entitlement be established before receiving and
casting a ballot. Nothing in the Act suggests that a person who on election
day is not entitled to vote should be permitted to do so and to establish his
entitlement later. If we decline to set aside votes cast by non-entitled
people on the grounds that they are subsequently proven to be qualified and
ordinarily resident in the electoral district, the result is a system where the
only way to be confident in the accuracy of an election outcome is to
investigate the identity, residence and qualification of voters after the
election.
[167]
Third, such an approach would be unfair. It
disregards the fact that other qualified electors who did not follow the
necessary steps to become entitled to vote may have rightly been turned away
from the polling station and not permitted to vote on election day. The Act
sets out the rules and procedures electors must follow in order to exercise
their constitutional right to vote. Those rules must be applied fairly and
consistently if the right is to have meaning.
D. Requirements for Annulment of an Election
[168]
As noted above, a court should annul an election
under s. 531(2) if the applicant has established that there were
“irregularities . . . that affected the result of the election” under s.
524(1)(b). The irregularities must be of a type that could affect the
outcome of the election and impact a sufficient number of votes to equal or
exceed the winner’s plurality. The winning candidate’s plurality in this case
was 26 votes, so this is the “magic number” of votes that the applicant had to
establish were subject to irregularities of a kind that could affect the result
of the election.
[169]
Election results benefit from a “presumption of
regularity”: Dewdney Election Case, [1925] 3 D.L.R. 770 (B.C.C.A.), at
p. 771. This reflects the fact that the applicant bears the burden of
establishing, on a balance of probabilities, that there were “irregularities .
. . that affected the result of the election”: see Beamish, at para.
39. It follows that the applicant in this case must establish that
irregularities resulted in non-entitled voters casting votes. If the judge
concludes that on a balance of probabilities the record reflects a lack of
entitlement, the vote must be set aside.
[170]
An applicant may lead direct evidence that a
non-entitled person voted. For example, he may demonstrate that a person who
voted was neither on the list of electors nor filed a valid registration
certificate. However, a judge may also rely on circumstantial evidence to
conclude, on a balance of probabilities, that voters who did not comply with
the entitlement provisions of the Act were improperly permitted to vote. In
the absence of palpable and overriding error, a judge’s conclusions on such
questions of fact should not be disturbed: Housen v. Nikolaisen,
2002 SCC 33, [2002] 2 S.C.R. 235; H.L. v. Canada (Attorney
General), 2005 SCC 25, [2005] 1 S.C.R. 401.
III. Application to This Appeal
[171]
Two main issues are raised on this appeal.
First, did the application judge err in law by reversing the onus of proof in
his analysis? Second, did the application judge err in annulling the election
on the basis of “irregularities . . . that affected the result of the
election”?
A. Did the Application Judge Reverse the Onus of Proof?
[172]
In my view, the application judge did not
reverse the onus of proof in his analysis. He understood that there was a
presumption of regularity in contested elections and that the applicant bore
the burden of proving, on a balance of probabilities, the existence of
“irregularities . . . that affected the result of the election”. He clearly
articulated this understanding of the law, and analyzed the evidence
accordingly. As he explained at para. 26 of his reasons:
An
examination of the conduct of an election begins with a presumption that it was
conducted in a fashion that is consistent with the requirements of the
applicable legislation. The presumption will stand in the absence of evidence
to the contrary.
[173]
The application judge discussed repeatedly and
at length that the onus lies with the applicant throughout. He stated flatly,
“[t]here is no doubt that the responsibility for demonstrating the presence of
an irregularity rests with the applicant, the party seeking to have the
election set aside” (para. 42). He also stressed the importance of placing the
onus on the applicant at all times, even when this may make it difficult to
establish that irregularities affected the result:
Counsel
for the applicant pointed out that, given the limitations on the available
evidence, it would be equally difficult for the applicant to prove the
irregularities affected the result of the election, as it would be for the
respondent to disprove this proposition. I am not sympathetic to this
complaint. I referred earlier to the conundrum that would result if elections
were easily overturned. It is not supposed to be easy to overturn an election.
[para. 46]
[174]
My colleagues suggest that despite these clear
statements, the application judge in fact reversed the onus in relation to
polls 426 and 31. I cannot accept this contention. Crucially, in his
treatment of both these polls, the application judge made an express finding
indicating the applicant had discharged his onus of proof (paras. 115 and 122).
B. Did the Application Judge Err in Annulling the Election
on the Basis of “Irregularities . . . That Affected the Result of the
Election”?
[175]
To recap, the applicant’s onus was to
establish that votes were cast by individuals who had not fulfilled the
qualification, registration or identification prerequisites to entitlement set
out in the Act . Unless the deficiencies were merely technical or trivial,
votes cast by persons not entitled to vote constitute irregularities of a type
that could affect the result of the election within the meaning of s. 524(1) (b).
If their number was equal to or exceeded the winning candidate’s plurality,
then the result of the election was affected, and the election should be
annulled under s. 531(2) . If not, then the outcome of the election must stand,
and the decision of the application judge must be reversed.
(1) Votes Set Aside Due to Irregularities in
Identification
[176]
An individual must satisfy the identification
prerequisites in the Act in order to be entitled to vote (ss. 148.1(1)
and 149 (c)). These identification requirements must be fulfilled,
regardless of whether an individual is on the list of electors or whether they
are voting by registration certificate. One option is for the individual to
present a piece or pieces of approved identification establishing identity and
residence (ss. 143(2) and 161(1) (a)). Another is for the individual to
take an oath and to be vouched for by someone meeting the vouching requirements
set out in the Act (ss. 143(3) , (5) , (6) , 161(1) (b), (6) and
(7) ).
(a) Poll 21
[177]
The application judge set aside eight votes at
this poll due to vouching problems. All eight voters were on the list of
electors for poll 21, and all were listed in the poll book as requiring an
oath. The application judge found as a fact that the oaths required for these
eight electors concerned their identities and not merely their residence, based
on comments next to these names in the poll book. Oaths sworn to establish
identity always require vouching by another person. However, the page of the
poll book for recording vouchers’ names was blank. The application judge found
that vouching did not occur, and set aside the eight votes.
[178]
The finding that vouching did not occur cannot
be disturbed in the absence of palpable and overriding error: “where evidence exists to support [a factual] inference, an appellate
court will be hard pressed to find a palpable and overriding error”: Housen,
at para. 22. The question is whether evidence existed to support the
application judge’s conclusion. The absence of vouchers’ names in the poll
book provided such evidence.
[179]
Nor did the application judge err in concluding
that vouching was required for the eight voters. This was supported by the
comments listed next to their names in the poll book, which indicated that
identity and not merely residence was at issue.
[180]
Having found that vouching was required but did
not occur, the application judge did not err in concluding that the applicant
had discharged his onus under s. 524(1)(b) with respect to these votes.
The vouching irregularities at poll 21 resulted in individuals voting who were
not entitled to do so, and their eight votes were properly set aside.
(b) Poll 174
[181]
Regarding poll 174, the application judge set
aside eight votes for what he characterized as improper vouching. At issue
were the pages of the poll book that document the vouching procedure. First,
p. 22 of the poll book required that the names of voters who were vouched for
be listed. However, this page of the poll book was left blank. Second, p. 23
of the poll book required that the names of vouchers be indicated. On this
page, the names of eight vouchers were recorded. In addition, the poll clerk
appeared to indicate on p. 23 the relationship of each voucher to the person
vouched for (for example, “son”, “spouse”, or “mother”). Third, p. 31 of the
poll book indicated the number of electors who were vouched for. On this page,
it was recorded that eight voters were vouched for.
[182]
The application judge concluded on this evidence
that any vouching that occurred was improper, and that the eight votes cast
under the vouching procedure should therefore be set aside. This conclusion
did not constitute palpable and overriding error and should not be interfered
with. The problem identified at poll 174 by the application judge was that
there was no way of knowing who was being vouched for by each voucher. The
names of individuals voting under the vouching procedure were not recorded on p.
22 as required under the Act (s. 162 (f)). This provided a factual basis
for the trial judge’s conclusion that any vouching that occurred was improper.
[183]
Although not expressly noted by the application
judge, the absence of voter names from the required form in the poll book could
indicate that these voters never swore oaths required of them under the
vouching procedure. Individuals voting under the vouching procedure must take
an oath swearing their qualification, residence and identity (ss. 143(3) and 161(1) (b)
of the Act ). Section 162 (f) of the Act requires the poll clerk
to indicate on the prescribed form that an elector has taken an oath. The
prescribed form for indicating the names of voters vouched for is p. 22 of the
poll book. At poll 174, no names were listed on p. 22 of the poll book,
despite the fact that eight voters cast their ballots under the vouching
procedure. This evidence supports the application judge’s conclusion that the
vouching at poll 174 was improper.
[184]
Improper vouching is an irregularity of a type
that can affect the result of the election. Having found such an irregularity
at poll 174, the application judge properly set these eight votes aside.
(c) Poll 502
[185]
Regarding poll 502, the application judge found
that seven voters were vouched for by individuals who were not resident in that
polling division. This finding of fact was supported by the evidence. The
application judge then set aside these seven votes, on the basis that the
vouching requirements in the Act were not met. The Act, as discussed, requires
that vouchers be on the list of electors for the polling division in which they
are vouching (ss. 143(3) and 161(1) (b)).
[186]
In my view, the application judge did not err in
setting aside these votes. Vouching allows a voter to satisfy the
identification prerequisite of entitlement to vote in the absence of approved
documentary identification. To maintain the integrity of the election process,
Parliament has established limitations on vouching. One limitation is that a
voucher must appear on the list of electors for the polling division at which
he is vouching. This allows polling officials to ensure that vouchers only
vouch for one person and reduces the risk of fraudulent vouching: Henry,
at paras. 368 and 400.
[187]
The seven voters who were vouched for at poll
502 failed to comply with entitlement prerequisites of the Act , in a way
that was not merely technical or trivial. The presumption of regularity was
displaced and these votes were properly set aside.
(d) Poll 30
[188]
The application judge set aside four votes at
poll 30. As with poll 502, the application judge found that these voters were
vouched for by individuals who were not on the list of electors for the polling
division. This finding was supported by the evidence. For the reasons I have
already described with respect to poll 502, these voters were not entitled to
vote, as they did not fulfill the identification prerequisite of entitlement to
vote. The deficiency of entitlement was not merely technical or trivial. The
presumption of regularity was displaced and these votes were properly set
aside.
[189]
The application judge noted that he would have
set aside two of these votes for the additional reason that each of the two
vouchers also vouched for another voter in the election. This alternative
analysis was not in error. Vouching for more than one person is specifically
prohibited by the Act (s. 143(5) ). If a person attempts to become
entitled to vote by relying on a voucher who has also vouched for another
voter, this constitutes non-compliance with the entitlement requirements of the
Act . The deficiency is not merely technical or trivial. Such vouching is
invalid, and a voter who relied upon it to establish her identity was not
entitled to vote.
(2) Votes Set Aside Due to Irregularities in
Registration
[190]
As discussed, an individual becomes registered
to vote either by having her name included on the list of electors or through
the registration certificate process set out in the Act (ss. 6 and 149 (c)).
(a) Poll 426
[191]
The application judge set aside 26 votes at poll
426 cast by individuals voting by registration certificate. He concluded, on a
balance of probabilities, that the required declaration of qualification to
vote was not made for these voters. (The text of this declaration is set out
in para. 159 above.)
[192]
There is evidence to support the application
judge’s conclusion. The problems were many. No registration certificates were
found for these voters. The page of the poll book recording the number of
people who voted by registration certificate is blank. No addresses are listed
for any registration certificate voters. The page of the poll book where
vouchers are to be recorded is also blank. Finally, none of these 26
registration certificate voters appear on the final list of electors as would
normally be the case if registration certificates were sent to the returning
officer for the riding after the election.
[193]
While various explanations for each of these
problems were advanced, the application judge concluded, on a balance of
probabilities, that the explanation for this catalogue of deficiencies was that
the necessary declarations were never made. The application judge made no
palpable and overriding error in drawing this factual inference on the evidence
before him.
[194]
Having found that no declaration of
qualification was made, the application judge correctly concluded that the
applicant had established, on a balance of probabilities, that these votes
should be set aside. The absence of a declaration of qualification was not
merely technical or trivial. This irregularity went to the heart of
entitlement to vote. Accordingly, the presumption of regularity was rebutted
and these votes were properly set aside.
(b) Poll 174
[195]
The application judge set aside one vote at poll
174 cast by a registration certificate voter. He concluded, on a balance of
probabilities, that this voter had not made the required declaration of
qualification to vote.
[196]
The evidence before the application judge
supported this factual conclusion. The box on the registration certificate
dealing with qualification to vote was left blank, and the certificate in
question verified the voter’s identity and residence, but did not attest to the
voter’s qualification to vote. The declaration was not signed by the voter.
On this basis, the application judge concluded that the declaration of
qualification was never made. Consequently, the presumption of regularity was
rebutted and this vote was properly set aside.
(c) Poll 89
[197]
At poll 89, 10 people voted by registration
certificate without signing their declaration of qualification. Instead, the
election official signed in the space reserved for the voter’s declaration,
while leaving blank the space where the deputy returning officer or
registration officer is required to sign.
[198]
The Act permits election officials to assist
voters, including by signing the declaration of qualification on behalf of the
voter. However, the application judge found that the election official did not
sign the declaration on behalf of the voters in question. Rather, he did so on
his own behalf, although in the wrong place. Therefore, the application judge
concluded that no declaration was made by the voters.
[199]
There was evidence to support his conclusion,
which was not tainted by palpable and overriding error. First, the space where
the election official was required to sign in his own capacity was blank.
Second, there is nothing to indicate that the election official signed on
behalf of the elector, instead of signing for himself, albeit mistakenly in the
wrong place. Accordingly, the presumption of regularity is displaced.
[200]
I note that the poll book indicates that one of
the 10 voters at issue here was already on the list of electors for polling
division 89. That voter had already complied with the registration
prerequisite of entitlement to vote by being on the list of electors for
polling division 89. The voter therefore did not need to file a registration
certificate in order to become entitled to vote.
[201]
Therefore, only nine of these votes were
properly set aside.
(d) Poll 31
[202]
Regarding poll 31, the application judge set
aside 15 votes cast by registration certificate voters whose registration
certificates could not be found. Here, as at poll 426, no one was listed as
having vouched for any of these voters, and the voters’ names were not added to
the final list of electors following the election. The application judge
concluded that registration certificate declarations of qualification were
never made for these voters. There was evidence to support this conclusion,
which is not tainted by palpable and overriding error.
[203]
Ordinarily, this conclusion would result in all
of the registration certificate votes concerned being set aside, and this is
indeed the case for two of the votes. However, an additional issue is raised,
as the remaining 13 registration certificate voters were already on the list of
electors for polling division 31 (three voters) or for other polling divisions
within the electoral district (10 voters).
[204]
The three votes cast by voters already on the
list of electors for polling division 31 should not have been set aside. These
voters had already satisfied the registration prerequisite of entitlement to
vote. The application judge erred in failing to identify these three voters as
entitled to vote through inclusion on the list of electors for polling division
31.
[205]
A further 10 voters were on lists of electors,
but for other polling divisions within the electoral district. The issue is
whether these votes were properly set aside. The application judge declined to
set aside one vote at poll 31 because that voter was on the list of electors
for another polling division in the same electoral district. If the
application judge had consistently applied this approach, these further 10
votes would also have been allowed.
[206]
In my view, the application judge erred in setting
these 10 votes aside. The record establishes that each of these voters was
qualified, registered in a polling division within the electoral district and
properly identified before they cast their ballots. The difficulty is that
the polling station in Etobicoke Centre where they cast their ballots was not
the polling station for the polling division in Etobicoke Centre where they
were registered to vote. Section
6 of the Act expressly states that a person on the list of electors is
only entitled to vote at the polling station for the polling division in which
she is listed.
[207]
In this case, the fact that 10 votes were cast at the wrong polling station within the riding is a merely technical or
trivial deficiency. It is therefore not an irregularity within the meaning of
s. 524(1)(b) and these votes should not be set aside. In essence, the
10 electors placed their ballots in the wrong box. Because the ballots from
all boxes in an electoral district are aggregated to determine the winning
candidate, placing a ballot in the wrong box does not impact the overall
tallies for the district. There is no evidence or suggestion of double-voting.
Ultimately, the problem here went simply to where the votes were cast within
the electoral district. Often, the polling stations for different polling
divisions are grouped together in a central polling location. The error might
have been as minor as walking to the wrong table in the room where voting was
taking place. As a result, I am of the view that the deficiency affecting
these 10 votes is inconsequential and, as a result, may be considered technical
or trivial. For this reason, these votes should not be set aside.
[208]
My conclusion in respect of these 10 votes
should not be understood as undermining the practical importance of polling
divisions. Polling divisions are key administrative units around which
elections are organized, ensuring that voting proceeds in an orderly fashion,
and they ought to be respected.
IV. Fresh Evidence Motion
[209]
The Chief Electoral Officer and the returning
officer brought a motion to adduce fresh evidence. The evidence consists of a
list of 52 names of voters in Etobicoke Centre for whom registration
certificates are missing, and indicates whether those names appeared in March
2011 in the national register of electors (“NROE”), a database of Canadians
qualified to vote in federal elections. The NROE is used to generate a
preliminary list of electors, which is then added to and deleted from to create
the list of electors used on election day.
[210]
Of the votes set aside by the application judge,
eight were cast by individuals whose names did not appear in the NROE at all,
so there is no suggestion that it was an error to set those votes aside on the
basis of the NROE. Three names on the NROE are those of voters from poll 31 who
were on the list of electors for that polling division, which I have held were
improperly set aside. This leaves 41 voters whose names appear in the NROE and
whose votes were set aside by the application judge.
[211]
An appellate court will consider the relevance
and reliability of fresh evidence in determining whether to admit it, as well
as whether the evidence could have been adduced at trial through due diligence:
Palmer v. The Queen, [1980] 1 S.C.R. 759. However, contested election
applications must be heard “without delay and in a summary way” under s. 525(3)
of the Act , which suggests that the due diligence requirement can perhaps be
relaxed in the election context.
[212]
In my view, notwithstanding any relaxation of
the due diligence requirement, the fresh evidence motion should be dismissed
for two reasons.
[213]
First, the evidence is not relevant to the
matter before this Court. As discussed earlier in these reasons,
after-the-fact information that a non-entitled voter was qualified is not
relevant to whether he was entitled to receive a ballot on election day.
Nothing in the Act suggests that this is an appropriate way to protect
the integrity of the electoral system. Votes were set aside in this case
because of failures in the registration and identification prerequisites of
entitlement. These cannot be remedied by after-the-fact proofs of
qualification. Without the voter establishing his qualifications in an
approved manner prior to voting, the Act is clear that he is not
entitled to vote (ss. 6 , 148.1 and 149 ).
[214]
Second, the reliability of the evidence is
questionable. All that Elections Canada has done is attempt to discern names
that are handwritten in the poll book, and type them into the NROE database to
find the closest match. Some of the names typed in are significantly different
from their closest match, suggesting that the person in the NROE is not the
person in the poll book. It is also entirely possible that handwritten names
have been misread, or that two individuals have the same name. Furthermore,
the NROE data relates to two months before the election. If the person in the
NROE is the same individual whose name did not appear on the list of electors
on election day, there is no way of knowing whether she was removed from the
list inadvertently or intentionally.
[215]
In any event, even if one were to accept that
this after-the-fact, untested information about qualification can somehow
legitimize voting by a non-entitled but qualified individual, admitting the
evidence would not affect the disposition of the appeal. Of the 41 individuals
at issue on the NROE list, 22 are linked in the NROE database to addresses
outside Etobicoke Centre. This suggests either that these are different people,
or that, as of March 2011, they were not resident within the riding. Neither
conclusion supports a finding that these were qualified Etobicoke Centre
voters. This leaves a total of 19 individuals who, were this evidence to be
accepted as relevant and reliable, appear to have been qualified voters in
Etobicoke Centre in March 2011. Even if all 19 of these votes were wrongly set
aside, the number of votes properly set aside would still be 46, a number
sufficient to annul the election.
V. Conclusion
[216]
Of the 79 votes set aside by the application
judge, I conclude that 65 were properly set aside, as follows:
Votes Set Aside Due to Irregularities in Identification
8 votes properly set
aside at poll 21
8 votes properly set
aside at poll 174
7 votes properly set
aside at poll 502
4 votes properly set
aside at poll 30
Votes Set Aside
Due to Irregularities in Registration
26 votes properly set
aside at poll 426
1 vote properly set
aside at poll 174
9 votes properly set
aside at poll 89
2 votes properly set
aside at poll 31
This exceeds the 26-vote
plurality in this electoral district.
[217]
Therefore, the applicant succeeded in
establishing the existence of “irregularities . . . that affected the result of
the election” under s. 524(1)(b) and the election is properly annulled
as contemplated under s. 531(2) of the Act . There is no need to consider
the cross-appeal. The appeal should be dismissed and the fresh evidence motion
dismissed.
APPENDIX
Canada Elections Act,
S.C. 2000, c. 9
3. Every person who is a Canadian citizen and is 18 years of age
or older on polling day is qualified as an elector.
. . .
6. Subject to this Act , every person who is qualified as an
elector is entitled to have his or her name included in the list of electors
for the polling division in which he or she is ordinarily resident and to vote
at the polling station for that polling division.
. . .
44. (1) The Chief Electoral Officer shall maintain a register
of Canadians who are qualified as electors, to be known as the Register of
Electors.
(2) The
Register of Electors shall contain, for each elector who is included in it, his
or her surname, given names, sex, date of birth, civic address, mailing address
and any other information that is provided under subsections 49(2), 194(7),
195(7), 223(2), 233(2) and 251(3).
(2.1) The
Register of Electors must also contain, for each elector, a unique, randomly
generated identifier that is assigned by the Chief Electoral Officer.
(3) Inclusion
in the Register of Electors is at the option of the elector.
. . .
143. (1) Each elector, on arriving at the polling station, shall
give his or her name and address to the deputy returning officer and the poll
clerk, and, on request, to a candidate or his or her representative.
(2) If
the poll clerk determines that the elector’s name and address appear on the
list of electors or that the elector is allowed to vote under section 146, 147,
148 or 149 , then, subject to subsection (3), the elector shall provide to the
deputy returning officer and the poll clerk the following proof of his or her
identity and residence:
(a) one piece of identification
issued by a Canadian government, whether federal, provincial or local, or an
agency of that government, that contains a photograph of the elector and his or
her name and address; or
(b) two pieces of identification
authorized by the Chief Electoral Officer each of which establish the elector’s
name and at least one of which establishes the elector’s address.
(2.1) For
greater certainty, the Chief Electoral Officer may authorize as a piece of
identification for the purposes of paragraph (2)(b) any document,
regardless of who issued it.
(2.2) For
the purposes of paragraph (2)(b), a document issued by the Government of
Canada that certifies that a person is registered as an Indian under the Indian
Act constitutes an authorized piece of identification.
(3) An
elector may instead prove his or her identity and residence by taking the
prescribed oath if he or she is accompanied by an elector whose name appears on
the list of electors for the same polling division and who
(a) provides to the deputy returning
officer and the poll clerk the piece or pieces of identification referred to in
paragraph (2)(a) or (b), respectively; and
(b) vouches for him or her on oath in
the prescribed form.
(3.1) If
the address contained in the piece or pieces of identification provided under
subsection (2) or paragraph (3)(a) does not prove the elector’s
residence but is consistent with information related to the elector that
appears on the list of electors, the elector’s residence is deemed to have been
proven.
(3.2) Despite
subsection (3.1), a deputy returning officer, poll clerk, candidate or
candidate’s representative who has reasonable doubts concerning the residence
of an elector referred to in that subsection may request that the elector take
the prescribed oath, in which case his or her residence is deemed to have been
proven only if he or she takes that oath.
(4) If
the deputy returning officer is satisfied that an elector’s identity and
residence have been proven in accordance with subsection (2) or (3), the
elector’s name shall be crossed off the list and, subject to section 144, the
elector shall be immediately allowed to vote.
(5) No
elector shall vouch for more than one elector at an election.
(6) An
elector who has been vouched for at an election may not vouch for another
elector at that election.
(7) The
Chief Electoral Officer shall publish each year, and within three days after
the issue of a writ, in a manner that he or she considers appropriate, a notice
setting out the types of identification that are authorized for the purpose of
paragraph (2)(b). The first annual notice shall be published no later
than six months after the coming into force of this subsection.
. . .
144. A deputy returning officer, poll clerk, candidate or candidate’s
representative who has reasonable doubts concerning whether a person intending
to vote is qualified as an elector may request that the person take the
prescribed oath, and the person shall not be allowed to vote unless he or she
takes that oath.
. . .
148.1 (1) An elector who fails to prove his or her identity and
residence in accordance with subsection 143(2) or (3) or to take an oath
otherwise required by this Act shall not receive a ballot or be allowed to
vote.
(2) If
an elector refuses to take an oath because he or she is not required to do so
under this Act , the elector may appeal to the returning officer. If, after
consultation with the deputy returning officer or the poll clerk of the polling
station, the returning officer decides that the elector is not required to take
the oath, and if the elector is entitled to vote in the polling division, the returning
officer shall direct that he or she be allowed to do so.
149. An
elector whose name does not appear on the official list of electors in his or
her polling station shall not be allowed to vote unless
(a) the
elector gives the deputy returning officer a transfer certificate described in
section 158 or 159 and, for a certificate described in subsection 158(2),
fulfils the conditions described in subsection 158(3);
(b) the
deputy returning officer ascertains with the returning officer that the elector
is listed on the preliminary list of electors or was registered during the
revision period; or
(c) the
elector gives the deputy returning officer a registration certificate described
in subsection 161(4) .
. . .
161. (1) An elector whose name is not on the list of electors
may register in person on polling day if the elector
(a) provides
as proof of his or her identity and residence the piece or pieces of
identification referred to in paragraph 143(2)(a) or (b),
respectively, which piece or one of which pieces must contain an address that
proves his or her residence; or
(b) proves
his or her identity and residence by taking the prescribed oath, and is
accompanied by an elector whose name appears on the list of electors for the
same polling division and who
(i) provides
the piece or pieces of identification referred to in paragraph 143(2)(a)
or (b), respectively, which piece or one of which pieces must contain
either an address that proves his or her residence or an address that is
consistent with information related to him or her that appears on the list of
electors, and
(ii) vouches
for him or her on oath in the prescribed form, which form must include a
statement as to the residence of both electors.
(2) Where
subsection (1) applies, the registration may take place before
(a) a
registration officer at a registration desk established under subsection 39(1);
or
(b) a
deputy returning officer at a polling station with respect to which the Chief
Electoral Officer determines that the officer be authorized to receive
registrations.
(3) In
the case of a registration under paragraph (2)(a), the registration
officer shall permit one representative of each candidate in the electoral
district to be present.
(4) Where
the elector satisfies the requirements of subsection (1), the registration
officer or deputy returning officer, as the case may be, shall complete a
registration certificate in the prescribed form authorizing the elector to vote
and the elector shall sign it.
(5) When
a registration certificate is given under subsection (4), the list of electors
is deemed, for the purposes of this Act , to have been modified in accordance
with the certificate.
(6) No
elector shall vouch for more than one elector at an election.
(7) An
elector who has been vouched for at an election may not vouch for another
elector at that election.
. . .
162. Each poll
clerk shall
. . .
(f) indicate,
if applicable, on the prescribed form that the elector has taken an oath and
the type of oath;
. . .
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
(a) under
section 65 the elected candidate was not eligible to be a candidate; or
(b) there
were irregularities, fraud or corrupt or illegal practices that affected the
result of the election.
. . .
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.
. . .
531. . . .
(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
allowed and cross‑appeal dismissed, McLachlin C.J.
and LeBel and Fish JJ. dissenting.
Solicitors
for the appellant/respondent Ted Opitz: Fasken Martineau DuMoulin,
Toronto; Davies Ward Phillips & Vineberg, Toronto.
Solicitors
for the respondent/appellant Borys Wrzesnewskyj: Gardiner, Roberts,
Toronto; Gowlings, Ottawa.
Solicitors
for the respondents Marc Mayrand (Chief Electoral Officer) and Allan Sperling
(Returning Officer, Etobicoke Centre): Borden Ladner Gervais,
Toronto; Elections Canada, Ottawa.
Sarah
Thompson, on her own behalf.
Solicitors
for the intervener Keith Archer (Chief Electoral Officer of British
Columbia): Waddell, Raponi, Victoria; Turnham Woodland, Victoria.
Solicitors
for the intervener O. Brian Fjeldheim (Chief Electoral Officer of
Alberta): Shores Jardine, Edmonton.
Solicitors for the
intervener the Canadian Civil Liberties Association: Koch Thornton,
Toronto.