Ted Opitz Appellant v. Borys Wrzesnewskyj,, 2012 SCC 55

SUPREME COURT OF CANADA Citation: Opitz v. Wrzesnewskyj, 2012 SCC 55, [2012] 3 S.C.R. 76 Date: 20121025 Docket: 34845 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 beannulled 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 isordinarily 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 beproperly identified at the polling station, whether by providing appropriate pieces of identification or by taking an oath and beingvouched 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 integrityof 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 soand 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 theresult of the election” within the meaning of s. 524(1)(b). The term “irregularities” should be interpreted to mean failures to comply withthe requirements of the Act, unless the deficiency is merely technical or trivial.

For “irregularities” to have “affected the result of theelection”, 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 nothave been cast. If the number of such votes equals or exceeds the winner’s plurality, then the result of the election is affected and theelection should be annulled.

Since election results benefit from a presumption of regularity, the applicant bears the burden of establishing, on a balanceof probabilities, that there were “irregularities . . . that affected the result of the election”. Here, the applicant had to establish thatirregularities resulted in non-entitled voters casting votes. In the absence of palpable and overriding error, a judge’s conclusions onwhether 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 didnot err with respect to 65 ballots cast by persons not entitled to vote. As this exceeds the winner’s plurality of 26 votes, the electionshould be annulled. Irregularities in identification led the application judge to set aside votes at polls 21, 174, 502 and 30. He did not err insetting aside 27 votes on this basis. These votes were cast by individuals using the oath and vouching procedure under the Act toidentify 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 notoccur. 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 werevouching, contrary to the Act. Irregularities in registration led the application judge to set aside votes cast under the registration certificate procedure atpolls 426, 174, 89 and 31.

He did not err in setting aside 38 votes on this basis. Individuals voting by registration certificate must makea 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 registrationcertificate 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 174and nine registration certificate voters at poll 89. The evidence supporting these findings included the absence of voter signatures fromthe declaration of qualification on the registration certificates. Regarding 15 votes cast by registration certificate voters at poll 31, the evidence supported the application judge’sconclusion that declarations of qualification were never made. The registration certificates could not be found.

However, while two ofthose votes were properly set aside by the application judge, the remaining 13 should not have been. Three voters had already satisfiedthe registration prerequisite of entitlement by being on the list of electors for polling division 31. The remaining 10 voters were on listsof electors for other polling divisions within the electoral district. In the circumstances, the fact that votes were cast at the wrong pollingstation 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 qualifiedis not relevant to whether he or she was entitled to receive a ballot on election day. Furthermore, the reliability of the evidence in thiscase is questionable. Moreover, admitting the evidence could not affect the disposition of the appeal, given the number of votes thatwere 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, (NWT SC),[1987] N.W.T.R. 186; Flookes and Long v. Shrake (1989), (AB KB), 100 A.R. 98; disapproved: O’Brien v. Hamel(1990), (ON SC), 73 O.R. (2d) 87; Nielsen v. Simmons (1957), (YK TC), 14 D.L.R. (2d) 446;Hogan v. Careen and Hickey (1993), (NL SC), 116 Nfld. & P.E.I.R. 310; Blanchard v. Cole, (NSCA), [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), (ON CA), 7O.R. (3d) 481, aff’d (SCC), [1993] 2 S.C.R. 438; Belczowski v. Canada, (FCA), [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, (SCC), [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), (SCC), [1996] 3 S.C.R. 919;Cusimano v.

Toronto (City), 2011 ONSC 7271, 287 O.A.C. 355; Abrahamson v. Baker and Smishek (1964), (SK CA),48 D.L.R. (2d) 725; Beamish v. Miltenberger, (NWT SC), [1997] N.W.T.R. 160. By McLachlin C.J. (dissenting) Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [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, 7B.C.L.R. (5th) 70; Haig v. Canada, (SCC), [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, (NWT SC), [1997]N.W.T.R. 160; Wright v. Koziak, 1980 ABCA 265 , [1981] 1 W.W.R. 449; Morgan v. Simpson, [1974] 3 All E.R. 722; O’Brienv. Hamel (1990), (ON SC), 73 O.R. (2d) 87; Blanchard v. Cole, (NS CA), [1950] 4 D.L.R. 316;McMechan v. Dow (1968), (MB KB), 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, (BCCA), [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, (SCC), [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 andcross-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 TedOpitz. 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) andAllan 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 Justic e, 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 issufficient to cast doubt on the true winner of the election or whether the irregularities are such as to call into question the integrity of theelectoral 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 forthe 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 iscomposed of two elements: “irregularities” and “affected the result”. As we shall explain, “irregularities” are serious administrativeerrors that are capable of undermining the electoral process — the type of mistakes that are tied to and have a direct bearing on aperson’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, itmust be discounted, thereby altering the vote count, and in that sense, affecting the election’s result. “Affected the result” could alsoinclude a situation where a person entitled to vote was improperly prevented from doing so, due to an irregularity on the part of anelection 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 ofaides to statutory

interpretation, among them: (1) the constitutional right to vote and the objectives of the Act; (2) the text and context ofs. 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 alegislative 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 SCC37, [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, (SCC), [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 aform of government in which sovereign power resides in the people as a whole. In our system of democracy, this means that each citizenmust have a genuine opportunity to take

part in the governance of the country through participation in the selection of electedrepresentatives. The fundamental purpose of s. 3, in my view, is to promote and protect the right of each citizen to play a meaningful rolein 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 toconstitutional override under s. 33 of the Charter.

Section 3 provides that citizens have the right to vote “in an election of members ofthe House of Commons or of a legislative assembly”. The right to vote in the election of “members of the House of Commons” reflectsCanada’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 thelist 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 voterconvenience on election day (J. P. Boyer, Election Law in Canada: The Law and Procedure of Federal, Provincial and TerritorialElections (1987), vol. I, at p. 101). The Charter right to vote is for the Member of Parliament for the electoral district in which the voterresides. [31] On a plain reading of s. 6, qualification and residence in a polling division give an individual the entitlement or rightto 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 electorsis a prerequisite to the right to vote. Such a reading reverses the effect of the provision. Entitlement to be on the list and entitlement tovote 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 notaltered 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 distinctionmust be made between the requirements of “entitlement” in s. 6 itself, which appears in

Part 1 of the Act under the heading “ElectoralRights”, and the procedural mechanisms applicable on election day which appear in

Part 9 of the Act under the heading “Voting”. TheAct 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. Theseare procedural provisions designed to satisfy election officials that voters have the attributes that entitle them to vote. The purpose ofprocedural provisions in the Act is to enfranchise those persons having a right to vote under s. 6, and to prevent persons without the rightto 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 mustalways be kept in sight. [35] It is well accepted in the contested election jurisprudence that the purpose of the Act is to enfranchise all personsentitled to vote and to allow them to express their democratic preferences. Courts considering a denial of voting rights have applied astringent justification standard: Sauvé v.

Canada (Attorney General) (1992), (ON CA), 7 O.R. (3d) 481 (C.A.), andBelczowski v. Canada, (FCA), [1992] 2 F.C. 440 (C.A.), both aff’d (SCC), [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 harmoniouslywith the scheme of the Act, the object of the Act, and the intention of Parliament”: Bell ExpressVu Limited Partnership v. Rex, 2002SCC 42, [2002] 2 S.C.R. 559, at para. 26, citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87.

The constitutionalright to vote and the enfranchising purpose of the Act are of central importance in construing the words “irregularities . . . that affectedthe result”. [37] It is well recognized in the jurisprudence that where electoral legislation is found to be ambiguous, it should beinterpreted in a way that is enfranchising: Haig v. Canada, (SCC), [1993] 2 S.C.R. 995.

Although he was in dissent inthat case, Cory J. made the following observations at pp. 1049-50, with which L’Heureux-Dubé J., for the majority, at p. 1028, expressedtotal agreement: The courts have always recognized the fundamental importance of the vote and the necessity to give a broadinterpretation to the statutes which provide for it. This traditional approach is not only sound it is essential for the preservation ofdemocratic rights. The principle was well expressed in Cawley v. Branchflower (1884), 1 B.C.R. (Pt. II) 35 (S.C.).

There Crease J. wroteat p. 37: The law is very jealous of the franchise, and will not take it away from a voter if the Act has been reasonablycomplied 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 whichthere has been a reasonable compliance with the statute which gives him the right he seeks to avail himself of. No merely formal orimmaterial 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 theopportunity of exercising this basic democratic right.

Conversely restrictions on that right should be narrowly interpreted and strictlylimited. [Emphasis deleted.] [38] While enfranchisement is one of the cornerstones of the Act, it is not free-standing. Protecting the integrity of thedemocratic process is also a central purpose of the Act. The same procedures that enable entitled voters to cast their ballots also servethe purpose of preventing those not entitled from casting ballots.

These safeguards address the potential for fraud, corruption and illegalpractices, and the public’s perception of the integrity of the electoral process. (See Henry, at paras. 305-6.) Fair and consistentobservance 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, atpara. 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 affectedthe 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 issignificant. A different phrase, “any non-compliance with the provisions of the Act”, could have been used. Moreover, if Parliamenthad 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 thatgive rise to overturning an election. [40] How is the meaning of “irregularities” restricted? The well-known “associated words” or “noscitur a sociis” rule ofinterpretation assists in this regard. The rule states that a term or an expression should not be interpreted without taking the surroundingterms into account. “The meaning of a term is revealed by its association with other terms: it is known by its associates”: 2747-3174Québec Inc. v.

Quebec (Régie des permis d’alcool), (SCC), [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 analogousgrammatical 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 theirbroadest 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 illegalpractices”. These are words that speak to serious misconduct. To interpret “irregularity” as meaning any administrative error wouldmean 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 theconduct 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 contemplatedmistakes 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 thefact 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 theCharter-protected right to vote. [45] Our system strives to treat candidates and voters fairly, both in the conduct of elections and in the resolution ofelection 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 achieveaccessibility for all voters, making special provision for those without identification to vote by vouching. Election officials are unable todetermine with absolute accuracy who is entitled to vote. Poll clerks do not take fingerprints to establish identity. A voter can establishCanadian citizenship verbally, by oath. The goal of accessibility can only be achieved if we are prepared to accept some degree ofuncertainty 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 areinevitable.

As recognized in Camsell v. Rabesca, (NWT SC), [1987] N.W.T.R. 186 (S.C.), it is clear that “in everyelection, 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 periodof a few days or, in many cases, a single 14-hour day. These workers perform many detailed tasks under difficult conditions. They arerequired to apply multiple rules in a setting that is unfamiliar.

Because elections are not everyday occurrences, it is difficult to see howworkers 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 hasbeen compromised. However, tension exists between allowing an application to contest an election on the basis of irregularities and theneed 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 weredisqualified, but every elector who voted in the riding. That voters will have the opportunity to vote in a by-election is not a perfectanswer, 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 itsuperseded.

New elections may also be an inconvenience for the voters, and almost certainly will mean that a different set of voters, withdifferent information, will be deciding the election. Moreover, there can be no guarantee that the new election will itself be free fromadditional problems, including fraud. In the long term, rerunning elections might lead to disillusionment or apathy, even if in the shortterm they excite interest in the particular contest.

Frequent new elections also would undercut democratic stability by calling intoquestion 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 oflitigation” 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 tothe ideal of enfranchising all entitled voters as possible. Since the system and the Act are not designed for certainty alone, courts cannotdemand perfect certainty. Rather, courts must be concerned with the integrity of the electoral system. This overarching concern informsour

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 languageof s. 524, and the numerous democratic values engaged, we conclude that an “irregularit[y] . . . that affected the result” of an election is abreach of statutory procedure that has resulted in an individual voting who was not entitled to vote. Such breaches are serious becausethey 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), (SK CA), 48 D.L.R. (2d) 725 (Sask. C.A.); Camsell, at p. 199; and Beamishv. Miltenberger, (NWT SC), [1997] N.W.T.R. 160 (S.C.), at paras. 38-39.) As earlier noted, the present situation isgoverned 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), asthe 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 civilstandard, 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] . . . thataffected the result” of an election. A strict procedural approach was followed by courts in O’Brien v. Hamel (1990), (ON SC), 73 O.R. (2d) 87 (H.C.J.); Nielsen v. Simmons (1957), (YK TC), 14 D.L.R. (2d) 446 (Y. Terr.

Ct.); Hogan v.Careen and Hickey (1993), (NL SC), 116 Nfld. & P.E.I.R. 310 (S.C. (T.D.)); and Blanchard v. Cole, (NS CA), [1950] 4 D.L.R. 316 (N.S.S.C.). Under that approach, all votes cast pursuant to an irregular procedure were held to beinvalid. The failure to comply with a procedural step aimed at determining entitlement was considered to directly affect the result of theelection.

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 tocomply 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 theelector to vote. An approach along these lines has been followed in other Canadian contested election cases: Camsell and Flookes andLong v. Shrake (1989), (AB KB), 100 A.R. 98 (Q.B.).

On this approach, failure to follow a procedural safeguard isnot 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 grantedeven where the result of the election reflects the will of the electors who in fact had the right to vote. This approach places a premiumon form over substance, and relegates to the back burner the Charter right to vote and the enfranchising objective of the Act. It also runsthe risk of enlarging the margin of litigation, and is contrary to the principle that elections should not be lightly overturned, especiallywhere neither candidates nor voters have engaged in any wrongdoing.

Part 20 of the Act should not be taken by losing candidates as aninvitation 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 onthe procedures used to facilitate and protect that right. In our view, an approach that places a premium on substance is the approach tofollow in determining whether there were “irregularities . . . that affected the result of the election”.

On this approach, a judge shouldlook at the whole of the evidence, with a view to determining whether a person who was not entitled to vote, voted. Unlike the “strictprocedural” approach, evidence going to entitlement is admissible. By the same token, direct evidence of a lack of entitlement is notrequired. 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 astatutory provision designed to establish a person’s entitlement to vote.

We do not understand the minority to suggest otherwise. Forexample, 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 entitledto vote, voted. Where that is established, the vote is invalid, and must be rejected. Rejecting a vote affects the result of the election inthe 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 itis a breach of a procedure designed to establish the voter’s entitlement. As indicated, proof of an irregularity may itself be sufficient toshow 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 hisor her prima facie evidentiary burden.

At that point, the respondent runs the risk of having the votes in issue set aside, unless he or shecan 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 towhether they were completed as required, the respondent may point to evidence showing that they were completed, such as a list ofnames of people who voted by registration, or evidence from the polling officials that registration took place.

Or, the respondent mayshow 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 ratherthan form, whether the applicant has met his or her burden of establishing on a balance of probabilities that someone who voted was notentitled 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 onelection day. It has to be remembered that “entitlement” is concerned with age, citizenship and residence. A judge may look at anyevidence that is relevant to these criteria. This approach best ensures the accuracy of election results.

Some prior jurisprudence in thelower courts suggests that this approach introduces uncertainty into election results. (See Hogan, at para. 77.) With respect, this concernis unfounded. [64] When a court decides a contested election case based on alleged “irregularities . . . that affected the result”, it isfaced with uncertainty as to the outcome of an election arising from allegations of errors in the administration of the election. Acontested election decision, by addressing these alleged errors, is designed to remedy this uncertainty.

An approach allowing for anexamination 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 minoritysuggests that since some entitled voters may be turned away on election day by election officials properly following procedures in theAct, it is unfair for a court to allow votes to stand where there was an administrative procedural error but other evidence that the voterwas 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 expl

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