2013 FC 525, 2013 FC 525

2013 FC 525 T-619-12 Sandra McEwing and Bill Kerr ( Applicants ) v. Attorney General of Canada, Marc Mayrand (the Chief Electoral Officer), Johanna Gail Denesiuk (Returning Officer for Winnipeg South Centre), Joyce Bateman, Anita Neville, Dennis Lewycky, Joshua McNeil, Lyndon B. Froese, Matt Henderson ( Respondents ) T-620-12 Kay Burkhart ( Applicant ) v. Attorney General of Canada, Marc Mayrand (the Chief Electoral Officer), Dianne Celestine Zimmerman (Returning Officer for Saskatoon - Rosetown - Biggar), Kelly Block, Lee Reaney, Vicki Strelioff, Nettie Wiebe ( Respondents ) T-621-12 Jeff Reid ( Applicant ) v.

Attorney General of Canada, Marc Mayrand (the Chief Electoral Officer), Laurel Dupont (Returning Officer for Elmwood - Transcona), Jim Maloway, Ilona Niemczyk, Lawrence Toet, Ellen Young ( Respondents ) T-633-12 Ken Ferance and Peggy Walsh Craig ( Applicants ) v. Attorney General of Canada, Marc Mayrand (the Chief Electoral Officer), Dianne James Mallory (Returning Officer for Nipissing - Timiskaming), Jay Aspin, Scott Edward Daley, Rona Eckert, Anthony Rota ( Respondents ) T-634-12 Yvonne Kafka ( Applicant ) v.

Attorney General of Canada, Marc Mayrand (the Chief Electoral Officer), Alexander Gordon (Returning Officer for Vancouver Island North), John Duncan, Mike Holland, Ronna-Rae Leonard, Sue Moen, Frank Martin, Jason Draper ( Respondents ) T-635-12 Thomas John Parlee ( Applicant ) v. Attorney General of Canada, Marc Mayrand (the Chief Electoral Officer), Susan J. Edelman (Returning Officer for Yukon), Ryan Leef, Larry Bagnell, Kevin Barr, John Streicker ( Respondents ) Indexed as: McEwing v. Canada (Attorney General) Federal Court, Mosley, J.—Ottawa, December 10 to 17, 2012 and May 23, 2013.

Elections — Applications seeking annulment of 2011 general election results in six electoral districts because of efforts to suppress votes — Elections Canada receiving complaints about automated messages advising of changes to voting locations — Elections Canada investigator deposing that calls wilfully preventing or endeavouring to prevent electors from voting contrary to Act , s. 281 (g), that offences committed contrary to Act, ss. 491(3) (d), 482 (b) — Applicants contending results may be annulled where doubt cast upon true winner or integrity of elections questioned — Principal issue effect of calls on election results in subject ridings, whether outcome therein should be annulled — Meaning of “fraud” in Act, s. 524(1) (

b) not limited to

definitions of offences in Act,

Part 19 — Not necessary to satisfy elements of criminal offences to establish fraud within meaning of Act — Sufficient to show voter at risk of being deprived of right to vote — Threshold to establish fraud occurred met by applicants herein — However, no evidence showing voter suppression successful — Fraud also not calling into question integrity of elections — Results therefore not annulled — Applications dismissed.

Practice — Limitation of Actions — Applications to annul results of 2011 general election in six electoral districts — Whether applications statute-barred — Not clear when applicants becoming aware of misrepresentations — Time limitations required to bar frivolous applications to annul elections — However, hearing not to be denied on technical, procedural ground where electoral fraud alleged.

Torts — Maintenance and champerty — Applications to annul results of 2011 general election in six electoral districts — Whether maintenance, champerty on part of non-governmental organization for supporting applicants — Maintenance, champerty inconsistent with role of non-governmental organizations in facilitating access to justice — Applicants having no prospect of financial reward, issues of broad public interest at stake — Contesting election not abuse of process where fraud alleged. These were applications brought under

Part 20 of the Canada Elections Act seeking the annulment of the results of the 2011 general election in six electoral districts because of efforts to suppress votes. Elections Canada received complaints from electors about misleading and harassing telephone calls both before and during election day. The complaints referred to automated messages purportedly from Elections Canada and advising certain electors of changes to voting locations.

The matter attracted public attention when the media found that a production order had been filed in court by an Elections Canada investigator to obtain records from a voice broadcasting vendor under contract to the Conservative Party of Canada (CPC) in relation to those complaints. The investigator deposed that Elections Canada did not make the calls in question; that the assertion that the location of polling stations had been changed was untrue; and that the calls wilfully prevented or endeavoured to prevent electors from voting contrary to paragraph 281 (

g) of the Act , resulting in offences that were committed contrary to paragraphs 491(3) (

d) and 482 (

b) of the Act. The applicants contended that the election results may be annulled either where the number of impugned votes is sufficient to cast doubt upon the true winner or where the fraudulent activities are such as to call into question the integrity of the electoral process. The applicants also argued that the election may be annulled if fraud casts doubt on its integrity even if the fraud does not raise doubts as to the true winner. The respondents submitted, inter alia , that criminal investigations and controverted validity applications in relation to an election should proceed sequentially, and that the meaning of fraud within paragraph 524(1) (

b) of the Act must be derived from the Criminal Code offence or the elements of the offence set out in paragraph 482( b ), which would require proof of a factual and a mental element. The principal issue to be determined was the effect the calls had on the election results in the subject ridings and whether, if the calls affected the result in one or more of the ridings or called into question the integrity of the electoral process, the outcome in those ridings should be annulled.

Also addressed were the issues of whether, inter alia , there was maintenance and champerty on the part of a non- governmental organization for supporting the applicants and whether the applications were statute-barred. Held , the applications should be dismissed. The applicants met the threshold to establish that fraud had occurred during the election but it was not established that the fraud affected the outcomes in the subject ridings or had a major impact on the credibility of the vote. The results in those districts were therefore not annulled.

Applications to annul an election may be brought at the same time that an investigation into possible violations of the Act is conducted by the Commissioner of Canada Elections. This conclusion is supported by the requirement in subsection 525(3) of the Act that such applications shall be dealt with summarily and without delay. It is also consistent with the objective of ensuring the integrity of the electoral process when the results are affected by the conduct described in

section 524. Any action or instance meeting the dictionary definition of fraud would constitute electoral fraud where it was done in contravention of a provision of the Act or where it served to defeat a process provided for in that Act. Deliberately misinforming electors about their polling location is thus fraud within the meaning of

section 524 and is provable on the civil standard. However, the comments of the majority in the Supreme Court decision of Opitz v. Wrzesnewskyj do not provide authority for the proposition that the election results may be overturned in every case in which electoral fraud, corruption or illegal practices have been demonstrated. In conclusion, the meaning of “fraud” in paragraph 524(1)(

b) is not limited to the definition of any of the offences in

Part 19 of the Act. It is not necessary for an applicant to satisfy the elements of the criminal offences in order to establish that “fraud” within the meaning of the Act has been made out. It is sufficient to show false representations depriving, or creating a risk of depriving, a voter of the right to vote. In the present instance, the threshold to establish that fraud occurred was been met by the applicants. However, there was no direct evidence that the voter suppression efforts were successful or that the election results in the six ridings would have turned out differently.

The fraud also did not call into question the integrity of the elections. The concepts of maintenance and champerty are inconsistent with the recognition in modern society of the role of non-governmental organizations in facilitating access to justice and the validity of alternative arrangements for funding litigation. The applicants had no prospect of financial reward from these proceedings and there were issues of broad public interest at stake.

It is not an abuse of process for an elector, with or without the support of a non-governmental organization, to bring an application to contest an election where there is evidence of an attempt to affect the results through fraud. Finally, as to whether the applications were statute-barred, the evidence was not clear as to precisely when the applicants became aware of the misrepresentations. Strict compliance with the time limitations is required to ensure that frivolous applications to annul elections are not made as a form of entertainment.

However, where electoral fraud is alleged and substantiated, the applicants should not be denied a hearing on a technical or procedural ground advanced by a party that has an interest in preserving the result. STATUTES AND REGULATIONS CITED Access to Information Act , R.S.C., 1985, c. A-1.

An Act respecting Champerty , R.S.O. 1897, c. 327.

An Act to disfranchise Voters who have taken bribes , S.C. 1894, c. 14.

An Act to provide for more effectual Inquiry into the existence of Corrupt Practices at Elections of Members of the House of Commons , S.C. 1876, c. 10. Canada Elections Act , R.S.C. 1970 (1st Supp.), c. 14. Canada Elections Act , S.C. 2000, c. 9, ss. 6, 120 , 281 , 438(3) , 479(3) , 480 , 482 ( b ), 491(3) ( d ), 500 , 502 , 511 , 512 , 514 , 515 , 522 , 524 ,

525(3), 527, 531. Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 24, 37(1). Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44]. Corrupt Practices Inquiries Act, R.S.C., 1985, c. C-45. Disfranchising Act, R.S.C., 1985, c. D-3. Dominion Controverted Elections Act, R.S.C., 1985, c. C-39. Dominion Controverted Elections Act (The), R.S.C. 1906, c. 7, s. 12. Dominion Controverted Elections Act (The), R.S.C. 1886, c. 9. Election Act, R.S.Q., c. E-3.3, s. 465. Federal Courts Rules, SOR/98-106, rr. 52.2, 82, 304, 312(a), Schedule. Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, s. 127(3). Patent Act, R.S.C., 1985, c. P-4, s. 60. CASES CITED applied: Wrzesnewskyj v.

Canada (Attorney General), 2012 ONSC 2873 , 110 O.R. (3d) 350, revd sub nom. Opitz v. Wrzesnewskyj,2012 SCC 55, [2012] 3 S.C.R. 76; R. v. Mohan, (SCC), [1994] 2 S.C.R. 9, (1994), 114 D.L.R. (4th) 419; Mattel, Inc. v.3894207 Canada Inc., 2006 SCC 22, [2006] 1 S.C.R. 772; Henry v. Canada (Attorney General), 2010 BCSC 610, 7 B.C.L.R. (5th) 70. distinguished: Hilton v. Norgaard (1992), 11 M.P.L.R. (2d) 256 (B.C.S.C.). considered: Bielli v. Canada (Attorney General), 2012 FC 916, 415 F.T.R. 286; Bielli v. Canada (Attorney General), 2012 FC 1172; Bell ExpressVuLimited Partnership v.

Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Thérien c. Pellerin, , [1997] R.J.Q. 816 (C.A.);Cusimano v. Toronto (City), 2011 ONSC 7271 , 93 M.P.L.R. (4th) 32; Pluri Vox Media Corp. v. Canada, 2012 FCA 18, 2012DTC 5039; Bank of Montreal v. Citak, (QC CQ), [2001] O.T.C. 192 (Ont. Sup. Ct.); Es-Sayyid v. Canada (PublicSafety and Emergency Preparedness), 2012 FCA 59, 8 Imm. L.R. (4th) 180; R. v. A.P., , 109 C.C.C. (3d) 385 (Ont.C.A.). referred to: Friesen v. Hammell, 1999 BCCA 23, [1999] 5 W.W.R. 345; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41; Penta v. City ofRevere, et al., 8 Mass. L. Rep. 106 (Super.

Ct. 1997); Gooch v. Hendrix, 851 P.2d 1321 (Cal. Sup. Ct. 1993); Valence v. Rosiere, 675So.2d 1138 (La. Ct. App. 1996); Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994); Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967); ApotexInc. v. Hoffman-La Roche Ltd., (FC), [1980] 2 F.C. 586, (1980), 48 C.P.R. (2d) 3 (T.D.); Teva Canada Ltd. v. OSIPharmaceuticals, Inc., [2012] F.C.J. No. 1670 (F.C.) (QL); Money v. Rankin (1909), 18 O.L.R. 661 (H.C.J.); Woroniuk v. Woroniuk(1977), (ON SC), 17 O.R. (2d) 460 (S.C.); Fredrickson v.

Insurance Corp. of British Columbia (1986), (BC CA), 28 D.L.R. (4th) 414, [1986] 4 W.W.R. 504 (B.C.C.A.); Ernst & Young Inc. v. Chartis Insurance Company of Canada,2012 ONSC 5020 , 14 C.C.L.I. (5th) 270; Tacan v. Canada, 2003 FC 915, 237 F.T.R. 304; McIntyre Estate v. Ontario (AttorneyGeneral), , 61 O.R. (3d) 257 (C.A.); Buday v. Locator of Missing Heirs Inc. (1993), (ON CA), 16O.R. (3d) 257, 108 D.L.R. (4th) 424 (C.A.); Stetson Oil & Gas Ltd. v. Thomas Weisel Partners Canada Inc., (Ont.Sup. Ct.); Addo v. OT Africa Line, 2006 FC 1099, 297 F.T.R. 283; AB Hassle v.

Apotex Inc., 2008 FC 184, 65 C.P.R. (4th) 332; Canada(Attorney General) v. Quadrini, 2010 FCA 47, 399 N.R. 33; Deigan v. Canada (Minister of Industry) (1996), 206 N.R. 195 (F.C.A.);Van Duyvenbode v. Canada (Attorney General), 2009 FCA 120; Adi v. Datta, 2011 ONSC 2496 ; Kroeker v. Harkema ExpressLines Ltd. (1973), (ON SC), 2 O.R. (2d) 210 (H.C.J.); Skelton v. Baxter, [1916] 1 K.B. 321 (C.A.); Jacobi v. Newell(County No. 4) (1992), (AB KB), 136 A.R. 165 (Q.B.); Lavigne and Ontario Public Service Employees Union et al.(No. 2), Re (1987), (ON SC), 60 O.R. (2d) 486, 41 D.L.R. (4th) 86 (H.C.J.), revd sub nom.

Lavigne v. O.P.S.E.U.(1989), (ON CA), 67 O.R. (2d) 536, 56 D.L.R. (4th) 474 (C.A.), affd (SCC), [1991] 2 S.C.R. 211,(1991), 81 D.L.R. (4th) 545; S v. K (1986), (ON SC), 55 O.R. (2d) 111 (Dist. Ct.); R. v. J.-L.J., 2000 SCC 51, [2000]2 S.C.R. 600; Dulong v. Merrill Lynch Canada Inc., , 80 O.R. (3d) 378 (Sup. Ct.); Eli Lilly Canada Inc. v. HospiraHealthcare Corporation, 2010 FCA 282, 409 N.R. 167; Johnson v. Milton (Town), 2008 ONCA 440, 91 O.R. (3d) 190; Cooper v. TheQueen, (SCC), [1980] 1 S.C.R. 1149, (1979), 110 D.L.R. (3d) 46; Benoit v. Canada, 2002 FCT 243, [2002] 2 C.N.L.R.1; Stetson Oil & Gas Ltd. v.

Stifel Nicolaus Canada Inc., 2013 ONSC 1300 ; 594872 Ontario Inc. v. Canada (No. 2), (FC), [1992] 1 C.T.C. 344, (1992), (FC), 55 F.T.R. 215 (F.C.T.D.); McLaughlin v. Canada (AttorneyGeneral), 2012 FC 556, 408 F.T.R. 286; R. v. Khan, (SCC), [1990] 2 S.C.R. 531, (1990), 59 C.C.C. (3d) 92; R. v. Smith, (SCC), [1992] 2 S.C.R. 915, (1992), 94 D.L.R. (4th) 590; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. C.(W.B.), , 142 C.C.C. (3d) 490 (Ont. C.A.); R. v. Semigak, 2007 NLTD 34 , 267 Nfld. & P.E.I.R. 75; R. v.

Times Square Cinema Ltd., (ON CA), [1971] 3 O.R. 688 (C.A.); Bedford v. Canada, 2010 ONSC 4264 , 102O.R. (3d) 321; Carter v. Canada (Attorney General), 2012 BCSC 886, 287 C.C.C. (3d) 1; Chaoulli v. Quebec (Attorney General), 2005SCC 35, [2005] 1 S.C.R. 791; Symes v. Canada, (SCC), [1993] 4 S.C.R. 695, (1993), 110 D.L.R. (4th) 470; PhilipMorris Products S.A. v. Marlboro Canada Limited, 2010 FC 1099, 90 C.P.R. (4th) 1; M. v. H., , 137 D.L.R. (4th) 569(Ont. Gen. Div.). AUTHORS CITED Black’s Law Dictionary, 7th ed. St. Paul, Minn.: West Group, 1999. Canada.

Standing Senate Committee on Legal and Constitutional Affairs. Proceedings, Issue 13 – Evidence for the meeting of April 5,2000, online: <http://www.parl.gc.ca/Content/SEN/Committee/362/lega/13eva-e.htm?Language=E&Parl=36&Ses=2&comm_id=11>. Canada. Standing Committee on Procedure and House Affairs. Evidence, No. 030 (March 29, 2012), online:<http://www.parl.gc.ca/content/hoc/Committee/411/PROC/Evidence/EV5486526/PROCEV30-E.PDF>. Canadian Oxford Dictionary, 2nd ed. Toronto: Oxford University Press, 2004, “fraud”. Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983. Fleming, John G.

The Law of Torts, 3rd ed. Sydney: Law Book, 1965. appLications brought under

Part 20 of the Canada Elections Act seeking the annulment of the results of the 2011 general election in sixelectoral districts because of efforts to suppress votes. Applications dismissed. APPEARANCES Steven Shrybman, Peter Engelmann and Benjamin Piper for applicants. Barbara McIsaac, Q.C., and Marc Chénier for respondent Marc Mayrand (Chief Electoral Officer). Arthur Hamilton, Ted Frankel and Jeremy Martin for respondent parliamentarians. W. Thomas Barlow and Nick Shkordoff for respondent The Responsive Marketing Group Inc. SOLICITORS OF RECORD Sack Goldblatt Mitchell LLP, Ottawa, for applicants.

Borden Ladner Gervais LLP, Ottawa, for respondent Marc Mayrand (Chief Electoral Officer). Cassels Brock & Blackwell LLP, Toronto, for respondent parliamentarians. Fasken Martineau DuMoulin LLP, Toronto, for respondent The Responsive Marketing Group Inc. Table of Contents Paragraph I. Introduction 1 II. Background 7 III. The statutory and jurisprudential framework 30 A. The Canada Elections Act 30 B.

Part 20 of the Act—Contested elections 46

(1) The Act contemplates parallel criminal and civil invalidity 49

(2) The test, burden and standard of proof for invalidity 51

(3) The meaning of “fraud” in subsection 524(1) 61 (4) “… that affected the result of the Election.” 71

(5) When must an application to annul be made? 84

(6) Section 527, “knew or should have known” 91 IV. Analysis 95 A. Preliminary motions 95

(1) Was there maintenance and champerty by the Council of Canadians? 95 (

a) Is Mr. Henein’s affidavit admissible? 101 (

b) Conclusion on maintenance and champerty 108

(2) Are the applications statute-barred? 116

(3) Should the opinion evidence of Mr. Graves be struck? 128 B. Admissibility and weight of the evidence 148

(1) Evidence of the applicants 149

(2) The ITO evidence 152

(3) Mr. Penner’s evidence 179

(4) The evidence of Ms. Desgagné and Mr. Langhorne 185

(5) The EKOS survey evidence 196

(6) Dr. Corbin’s evidence 218

(7) Dr. Nevitte’s evidence 230

(8) Evidence of the respondent MPs’ campaign managers 239 V. Conclusion on the merits 240 A. Has “fraud” under paragraph 524(1)(

b) been made out? 240 B. Did the fraud affect the results of the election in the six subject ridings? 247 C. Did the fraud call into question the integrity of the elections? 252 D. Should the Court exercise its discretion to annul the elections? 258 VI. Costs 259 The following are the reasons for judgment and judgment rendered in English by Mosley J.: I. Introduction “… very serious matters that strike at the integrity of our democratic process” [ 1 ] In his remarks to the Standing Committee on Procedure and House Affairs of the House of Commons on March 29, 2012 [PROC-30, at page 1], Mr.

Marc Mayrand, Chief Electoral Officer of Canada, made the following comments about the allegations that are at the heart of these applications: These are very serious matters that strike at the integrity of our democratic process.

If they are not addressed and responded to, they risk undermining an essential ingredient of a healthy democracy, namely the trust that electors have in the electoral process. [Emphasis added.] [ 2 ] The applicants, eight Canadian citizen voters residing in six electoral districts, brought these proceedings to annul the results of the 2011 general election in their ridings because of efforts to suppress votes that occurred during that election. Those efforts involved telephone calls purporting to be from Elections Canada.

In the calls, voters were told that the locations of polling stations in their districts had been moved from the places specified in the printed information provided by Elections Canada prior to the day of the vote. The information was false and Elections Canada neither made nor authorized those calls. [ 3 ] The calls struck at the integrity of the electoral process by attempting to dissuade voters from casting ballots for their preferred candidates.

This form of “voter suppression”, was, until the 41st general election, largely unknown in this country. [ 4 ] The evidence presented in these applications points to a concerted campaign by persons who had access to a database of voter information maintained by a political party.

It was not alleged that any of the candidates of that party, including those who were successful in the six ridings at issue, were responsible for this campaign but that others took it upon themselves to attempt to influence the election results in their favour. [ 5 ] As a result of these actions, the applicants seek to set aside the 2011 election results in the six ridings under

Part 20 [sections 522 to 532] of the Canada Elections Act , S.C. 2000, c. 9 (the Act). [ 6 ] The central issue to be determined in these proceedings was the effect the calls had, if any, on the election results in the six subject ridings. If satisfied that the calls affected the result in one or more of the ridings or called into question the integrity of the electoral process, the Court may annul the outcome in that riding or ridings.

For the reasons that follow, I find that electoral fraud occurred during the 41st general election but I am not satisfied that it has been established that the fraud affected the outcomes in the subject ridings and I decline to exercise my discretion to annul the results in those districts. II. Background [ 7 ] These applications were brought 10 months after the election.

Complaints about misleading and harassing calls had been made to Elections Canada both before and during the election day on May 2, 2011 but the matter did not attract much public attention until, in late February 2012, journalists found in an Edmonton court file an “Information to Obtain a Production Order Pursuant to

Section 487.012 of the Criminal Code ” (ITO) sworn by Allan Mathews, an Elections Canada investigator. The Mathews ITO became a public document after a return was made to the court on the execution of the production order. The media then began to report widely that Elections Canada officials were actively investigating complaints made during and after the election. [ 8 ] The Mathews ITO was filed to obtain records from an Edmonton-based company called RackNine Inc, in relation to complaints by voters that there had been efforts to suppress votes in the electoral district of Guelph, Ontario. Mr.

Mathews described the nature of the complaints as follows: Individual electors have described to me receiving telephone calls around 10:00 hours of the morning of May 2, 2011. The caller was usually described as a recorded female voice giving a bilingual message, who claimed to be calling on behalf of Elections Canada. The English message received by electors is as follows:

This is an automated message from Elections Canada. Due to the projected increase in poll turnout your voting location has beenchanged. Your new voting location is at…. Once again your new poll location is at…. If you have any questions please call our hotlineat 1-800-434-4456. We apologize for any inconvenience that this may cause. [9] Mr. Mathews further deposed that Elections Canada does not telephone individual electors and did not make the calls in question.The assertion that the polling stations had been changed was untrue.

The making of these calls by a person or persons unknown, in Mr.Mathews’ belief, wilfully prevented or endeavoured to prevent an elector from voting contrary to paragraph 281(

g) of the Act. As aresult, he alleged, offences had been committed contrary to paragraphs 491(3)(

d) and 482(

b) of the Act. [10] Media accounts subsequent to the publication of the Mathews ITO reported that similar illicit telephone calls had been reportedin other ridings. On March 15, 2012, the Chief Electoral Officer, Marc Mayrand, issued a statement: “Chief Electoral Officer of CanadaAddresses Allegations of Wrongdoing During the 41st General Election”. Mr. Mayrand’s statement indicated that Elections Canada had,as of that date, received over 700 complaints from Canadians describing specific circumstances where they believed that wrongdoing hadoccurred during the 41st general election. As of the date of Mr.

Mayrand’s appearance before the Standing Committee on Procedure andHouse Affairs two weeks later, on March 29, 2012, close to 40 000 Canadians had contacted Elections Canada to express their concernsin response to the media reports. [11] This was the context in which these applications were filed with the Court.

They contest the results of the election in the sixelectoral districts of Elmwood-Transcona, Nipissing-Timiskaming, Saskatoon-Rosetown-Biggar, Vancouver Island North, WinnipegSouth Centre and Yukon. [12] The respondents are the Attorney General of Canada, the Chief Electoral Officer of Canada, the returning officers for theelectoral districts, the six elected Conservative Party of Canada Members of Parliament (MPs), three unsuccessful Liberal Party ofCanada candidates (Nipissing-Timiskaming, Winnipeg South Centre, and Yukon), the six unsuccessful New Democratic Party of Canadacandidates, and Matt Henderson, an unsuccessful Independent candidate in Winnipeg South Centre. [13] Notices of appearance were filed by each of the respondents.

The respondent Conservative MPs filed written representations andmade oral submissions opposing the applications at the hearing. The New Democratic Party candidates filed written representations andmade oral submissions in support of the applicants. The Liberal Party candidates, the Attorney General of Canada, the returning officersand Mr. Henderson filed no submissions and took no active part at the hearing. Other candidates in the several ridings did not file noticesof appearance.

The Chief Electoral Officer provided written representations and oral submissions to assist the Court with respect to theinterpretation of the Act. [14] There were originally seven applications, but the seventh, in Court File T-616-12, Leeanne Bielli v. Attorney General of Canada,was dismissed in October 2012 when it emerged that the applicant, who had not voted due to a misleading call, had mistaken her ridingand resided in an adjacent one and not that which was the subject of her application.

A motion initiated by one of the respondents in T-616-12 and the evidence filed in that application were deemed continued in the other six applications. [15] The notices of application were filed on March 23 and March 26, 2012. Pursuant to subsection 525(3) of the Act, suchapplications are to be “dealt with without delay and in a

summary way”. As discussed by Mr. Justice Lederer in Wrzesnewskyj v. Canada(Attorney General), 2012 ONSC 2873 , 110 O.R. (3d) 350 (Wrzesnewskyj), at paragraphs 32–33, this means that they are to bedealt with without all of the customary legal formalities. To proceed in “a

summary way” imposes limits on the evidence that may begathered and heard. An additional limitation in this particular context is the fact that the vote is secret. [16] That the applications are to be dealt with expeditiously did not prevent the parties, particularly the respondent MPs, frombringing a considerable number of interlocutory motions.

It is, I think, helpful to provide an overview of the preliminary proceedings toexplain why this case has taken so long to be completed and to provide some background to the issues dealt with in these reasons. [17] On May 22, 2012, two months after the applications were filed, the respondent MPs moved to have them dismissed as frivolousand vexatious, an abuse of process and not brought within the time required under

section 527 of the Act.

The motions to strike weredismissed on all grounds, save that of timeliness, on July 19, 2012 following a hearing before Prothonotary Milczynski. [18] Recognizing that the Act provided a mechanism to prevent abusive objections to election results from interfering with thedemocratic process, Prothonotary Milczynski found that such a situation had not been established on the record before her (Bielli v.Canada (Attorney General), 2012 FC 916, 415 F.T.R. 286 (Bielli), at paragraph 11) : Far from being frivolous or vexatious, or an obvious abuse, the applications raise serious issues about the integrity of the democraticprocess in Canada and identify practices that if proven, point to a campaign of activities that would seek to deny eligible voters their rightto vote and/or manipulate or interfere with that right being exercised freely ‒ all of which if permitted to escape even the prospect ofjudicial scrutiny, could shake public confidence and trust in the electoral process and in those who in good faith stand for public office. [19] Prothonotary Milczynski concluded that the issues would be best raised and argued on a full record.

The question of whether theapplications were brought within the statutory limitation period could not be resolved without the applicants’ evidence and any possiblecross-examinations on their evidence by the respondents. [20] Also on May 22, 2012, the respondent MPs initiated a motion to have the applications dismissed on the ground that they were theproduct of maintenance and champerty by an organization not party to the proceedings, the Council of Canadians (the Council). Thismotion was supported by an affidavit sworn by Peter Henein, a member of the law firm acting on behalf of the respondent MPs.

Theapplicants moved shortly thereafter to strike the affidavit on the ground that it was contrary to rule 82 of the Federal Courts Rules,SOR/98-106 (the Rules) and the principle that counsel may not be a witness in the same case in which they represent a party. [21] Following a case conference in August, the applicants agreed to withdraw the rule 82 motion without prejudice to their right toimpugn the evidence at the hearing of the applications.

In exchange, counsel for the respondent MPs agreed not to cross-examine affiantsrepresenting the Council with respect to the motion to dismiss for maintenance and champerty.

[ 22 ] The respondent MPs moved in August 2012 to have an increased security for costs, totalling $260 409, paid into court by the applicants. This was denied by Prothonotary Aronovitch on the basis that the “respondent MPs have failed to raise grounds or bring to bear evidence that would justify any further payment of security for costs, let alone in the amount requested” ( Bielli v. Canada (Attorney General) , 2012 FC 1172 , at paragraph 5 ).

Finding that the seven motions (one in each application) had unnecessarily delayed and encumbered the proceedings, she ordered that the costs of the motions be paid by the respondent MPs in any event of the cause. [ 23 ] Another series of preliminary motions concerned the expert opinion evidence filed by the parties. The respondent MPs moved in August 2012 for leave to file a sur-reply affidavit by their expert, Dr. Ruth Corbin. In September, the applicants moved for leave to file their own expert reply and the respondent MPs moved to strike the evidence of the applicants’ expert, Mr.

Frank Graves, invoking an alleged lack of independence and impartiality. On October 10, 2012, the Court issued a consent order allowing both parties to file reply and sur-reply affidavits, without prejudice to their rights to make representations on the weight and probative value of the evidence during the hearing, but with agreement that neither the applicants nor the respondent MPs would seek to serve and or file any additional affidavits from experts. [ 24 ] In October 2012, the applicants moved for leave to file affidavit evidence introducing records from the Commissioner of Canada Elections.

Leave was granted, with the hearing judge to decide on the weight and probative value of this evidence. [ 25 ] In late November 2012, additional ITO information having been brought to light by the press, the applicants moved for leave to examine three investigators for the Commissioner of Canada Elections, Mr. Mathews, Mr. Dickson, and Mr. Thouin, or to file an affidavit containing information about their investigations. A redacted affidavit with redacted exhibits was allowed on December 6, 2012.

The Chief Electoral Officer moved to have investigation evidence admitted to the record, asking for an order permitting the filing of a collection of documents brought to light through access to information and privacy (ATIP) requests as exhibits to an affidavit. This was also granted on December 6, 2012. [ 26 ] Finally, on December 5, 2012, the applicants asked for relief from the October 10 consent order under which they could file no more expert opinion evidence, having belatedly discovered a factual error in the respondent MPs’ reply evidence addressing Mr. Graves’ affidavits.

This motion was granted subject to the production of Mr. Graves for cross-examination at the hearing, as contemplated by subsection 525(3) of the Act and by the Rules . [ 27 ] The hearing began as scheduled on Monday, December 10, 2012 and was concluded on Monday, December 17, 2012.

In addition to the substantive merits of the applications and the procedural issue relating to timeliness, two of the motions brought by the respondents during the interlocutory proceedings remained to be determined by the Court: the maintenance and champerty motion and the motion by the respondent MP in the Don Valley East riding to strike the Graves evidence.

As noted above, the motion to strike the Graves evidence had been deemed to be continued on behalf of the other respondent MPs when the Don Valley East application was dismissed. [ 28 ] On January 24, 2013 the applicants moved to be granted leave pursuant to paragraph 312 (

a) of the Rules to adduce further affidavit evidence concerning another ITO sworn by John B. Dickson in the course of his investigations on behalf of the office of the Commissioner of Canada Elections, which had just become public. The respondent MPs opposed the motion. None of the other parties filed a response.

By order dated February 22, 2013 the Court granted the motion on the same terms as those under which the evidence of the other ITOs was introduced and subject to the same objections on admissibility, weight, and relevance. [ 29 ] I will now turn to the legislative and jurisprudential framework governing my determination of the issues raised in these proceedings. III. The Statutory and Jurisprudential Framework A. The Canada Elections Act [ 30 ] As noted at the outset, these proceedings were brought by applications under the Canada Elections Act .

The present version of this statute was enacted by Parliament in 2000 to implement the recommendations of a series of reports, including that of the Royal Commission on Electoral Reform and Party Financing [ Reforming Electoral Democracy ] tabled in 1992, five reports produced by a special committee of the House of Commons during 1992 and 1993 and others submitted to Parliament by the Chief Electoral Officer, notably following the 36th general election in 1997. [ 31 ] These reports called for the repeal of the existing legislation, the former Canada Elections Act dating from 1970 [R.S.C. 1970 (1st Supp.), c. 14], the Dominion Controverted Elections Act , R.S.C., 1985, c.

C-39, the Disfranchising Act , R.S.C., 1985, c. D-3, originally enacted in 1894 [

An Act to disfranchise Voters who have taken bribes , S.C. 1894, c. 14], and the Corrupt Practices Inquiries Act , R.S.C., 1985, c. C-45, adopted in 1876 [

An Act to provide for more effectual Inquiry into the existence of Corrupt Practices at Elections of Members of the House of Commons , S.C. 1876, c. 10].

They also called for consolidation of the administrative framework for federal elections, the offences and penalties for violations and the procedures for contesting or controverting electoral results into one comprehensive code. [ 32 ] One of the effects of the adoption of these recommendations in the 2000 Act is that the jurisprudence under the former legislation may be of limited value in interpreting the new enactments. [ 33 ] In considering the relevant provisions of the 2000 Act , I have had the benefit of the views expressed by Justice Lederer in Wrzesnewskyj , above, and those of the majority and minority opinions of the Supreme Court of Canada on appeal from that decision in Opitz v.

Wrzesnewskyj , 2012 SCC 55 , [2012] 3 S.C.R. 76 ( Opitz ). [ 34 ] As stated by the majority in Opitz , at paragraph 1 ,

section 3 of the Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (Charter), and the provisions of the Canada Elections Act have the clear and historic purposes of enfranchising Canadian citizens and of protecting the integrity of our electoral process.

[ 35 ] Canadian citizens are guaranteed the right to vote for the candidate of their choice to serve as the Member of Parliament for the electoral district in which the citizen resides.

Section 3 of the Charter provides: Democratic rights of citizens 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. [ 36 ]

Section 6 of the Canada Elections Act gives practical effect to that guarantee by providing that persons who are qualified as electors are entitled to have their names included in the list of electors for the electoral division in which they are ordinarily resident and to vote at the polling station for that electoral division at federal elections. [ 37 ] The procedure for determining the lists of electors for each polling division is set out in

Part 7 [sections 93 to 111] of the Act . Preparation for the vote is governed by

Part 8 [sections 112 to 126]. It is the responsibility of the returning officer to establish one polling station for each polling division (subsection 120(1)). Additional stations may be established if justified by the number of electors in the district, with the prior approval of the Chief Electoral Officer (subsection 120(2)). Additional provisions in

Part 8 specify the nature of the locations that may serve as polling stations, with regard to such considerations as accessibility and privacy, and the appointment of officials to manage and secure the premises.

Part 9 [sections 127 to 167] contains the method for setting the voting hours. [ 38 ] The selection of the location of each polling station is among the responsibilities of the returning officers for each district with the approval of the Chief Electoral Officer. That would include any relocation of a polling station. The scheme of the legislation suggests that any notification to electors of such a change would also be the responsibility of the returning officers and Chief Electoral Officer. [ 39 ]

Section 281 prohibits anyone from interfering with an elector when marking a ballot, from making false statements or from preventing an elector from voting. Interference with an elector would include the type of conduct complained of in this proceeding; that is, deliberately providing false information about a change in the location of a polling station. [ 40 ]

Part 19 of the Act , containing sections 479 to 521.1 , deals with enforcement issues.

Section 480 creates a general offence of obstructing the electoral process. Other specific offences are set out in sections 481 to 499. These include the offence of electoral fraud under paragraph 482 ( b ) (inducing a person to refrain from voting or refrain from voting for a particular candidate “by any pretence or contrivance”) and that set out in paragraph 491(3) ( d ) (wilfully preventing or endeavouring to prevent an elector from voting at an election). These are the offences, according to the ITOs, which are being investigated by the Commissioner of Canada Elections in regard to the 2011 elections. [ 41 ]

Section 500 contains the general punishment provisions for the offences created by the preceding sections. The maximum penalties range from a fine of not more than $1 000 or three months’ imprisonment, or both, in most cases and a fine of $25 000 in one case, on

summary conviction, to a fine of $5 000 or five years’ imprisonment on conviction by indictment. Corrupt and illegal practices by candidates and their official agents are dealt with in

section 502, which carries a five-year maximum penalty and proscription from holding electoral or appointed office for up to seven years from the date of conviction. [ 42 ] The office of Commissioner of Canada Elections is provided for in sections 509 to 515 of

Part 19. The Commissioner is appointed by the Chief Electoral Officer and is responsible for ensuring that the Act is complied with and enforced. The Chief Electoral Officer can direct the Commissioner to conduct an inquiry and the Commissioner can initiate an inquiry and receive complaints.

Section 511 authorizes the Commissioner to refer a matter to the Director of Public Prosecutions if he or she believes on reasonable grounds that an offence has been committed. The Director of Public Prosecutions shall decide whether to initiate a prosecution (subsection 511(1)). [ 43 ] The respondent MPs contend that one of the options open to the applicants would have been to initiate a private prosecution, as the Act permits. Had they done so, it was submitted, the applicants, if successful in securing a conviction, could have taken advantage of the provision in

section 515 permitting the criminal court to make an award of costs to the prosecuting party. This argument was advanced in the context of the champerty motion in response to the contention that private citizens would not have the resources to bring annulment applications without the support of third parties. [ 44 ] However, private prosecutions may be initiated only with the prior written consent of the Director of Public Prosecutions save for the instance where an elections officer has to take steps to maintain order at a polling place while the vote is ongoing (section 512; subsection 479(3)).

Section 512 reads as follows: Director’s consent required 512.

(1) No prosecution for an offence under this Act may be instituted by a person other than the Director of Public Prosecutions without the Director’s prior written consent. Exception (2) Subsection (1) does not apply to an offence in relation to which an election officer has taken measures under subsection 479(3). Proof of consent

(3) Every document purporting to be the Director’s consent under subsection (1) is deemed to be that consent unless it is called into question by the Director or by someone acting for the Director or for Her Majesty. [ 45 ] While it is theoretically possible, I find it difficult to conceive of any situation in which the Director of Public Prosecutions would consent to a private prosecution in relation to electoral fraud, a matter of great public interest. Thus the recovery of costs by a private prosecutor is possible but unlikely in this context. B.

Part 20 of the Act — Contested Elections [ 46 ] Prior to the enactment of the 2000 Act , procedures to overturn election results were governed by the above-mentioned Dominion Controverted Elections Act , a 19th century statute [R.S.C. 1886, c. 9]. In applications under that legislation the presiding court could exercise both criminal and civil jurisdiction. In the various studies and reports on the former legislative regime, these procedures, requiring a finding of criminal liability, were considered to be cumbersome, costly and time-consuming and were, for those reasons, rarely employed. The two jurisdictions, civil and criminal, were, therefore, treated separately in the 2000 Act.

[ 47 ] The criminal process is now left to the Commissioner and the Director of Public Prosecutions who may initiate investigations and prosecutions under

Part 19, where justified by the evidence and the public interest. The prosecutions may result in penal sanctions against an individual or individuals. [ 48 ]

Part 20 of the Act now provides for civil applications to overturn an election. It is a complete code for the validity of an election to be challenged by a candidate or an elector and the result will touch upon the election outcome, not provide sanctions against individuals. The election of a candidate may not be contested otherwise than in accordance with

Part 20, and the making of an application to contest an election does not affect any right or obligation of a candidate in that election (section 522).

(1) The Act contemplates parallel criminal and civil processes [ 49 ] The respondent MPs contended initially that criminal investigations and controverted validity applications in relation to an election should proceed sequentially, with

Part 19 procedures being completed first and then

Part 20 procedures begun. Parliament intended, they argued, that annulment under

Part 20 should be a last resort when there has been wrongdoing in the course of an election. To address the strict time limitation on the bringing of an annulment application imposed by the statute, they suggested that the Court could impose a stay pending the outcome of the investigation and the prosecution, if any, that might follow within the statutory limitation period set out in

section 514 . That is 5 years from the day on which the Commissioner became aware of the facts giving rise to the prosecution but, in any case, not later than 10 years after the day on which the offence was committed. [ 50 ] I agree with the Chief Electoral Officer that the Act contemplates that applications to annul an election may be brought at the same time as an investigation into possible violations of the Act is conducted by the Commissioner.

This conclusion is supported by the time limit imposed for bringing a civil application, the requirement, in subsection 525(3), that such applications shall be dealt with summarily and without delay and the lengthy limitation period for prosecutions provided for in

section 514 . It is also consistent with the objective of ensuring the integrity of the electoral process when the results are found to have been affected by the conduct described in

section 524 . At the conclusion of the hearing, the respondent MPs conceded that this

interpretation was correct.

(2) The test, burden and standard of proof for invalidity [ 51 ]

Section 524 allows an elector or candidate to make an application to a court contesting an election on the grounds that the elected candidate was not eligible or that irregularities, fraud, or corrupt or illegal practices had affected the result of the election. An election cannot be contested on the same grounds as those for which a recount may be requested. [ 52 ]

Section 524 reads as follows: Contestation of election 524.

(1) Any elector who was eligible to vote in an electoral district, and any candidate in an electoral district, may, by application to a competent court, contest the election in that electoral district on the grounds that (

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. Exception

(2) An application may not be made on the grounds for which a recount may be requested under subsection 301(2). [ 53 ] The remedy the court may provide is in subsection 531(2): 531. … Court’s decision

(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 . [My emphasis.] [ 54 ] The Supreme Court determined, at paragraphs 20–22 of Opitz , that the use of the word “respectively” means that where the grounds in paragraph 524(1)(

a) are established, a court must declare the election null and void; where the grounds in paragraph 524(1)(

b) are established, a court may annul the election. Under the latter circumstances, the court must decide whether the election held was compromised in such a way as to justify its annulment. [ 55 ] The use of “established” in subsection 531(2) places the burden on the applicant throughout. The applicable standard of proof is the civil standard of proof on a balance of probabilities. The applicants must establish that electoral fraud occurred and that the results of the election were affected ( Opitz , at paragraphs 52–53 ).

In the present case, the applicants must establish that in each of the subject ridings there was at least one elector in each riding who did not vote as a result of the fraud. [ 56 ] Among the other principles that I must keep in mind in assessing the degree of compromise to an election result are the following: annulling an election would disenfranchise every elector who voted in the riding; the reparative measure that voters will have the opportunity to vote in a by-election is not a perfect answer for a number of reasons; permitting elections to be lightly overturned would increase the likelihood of post-election litigation; and 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 ( Opitz , at paragraphs 48, 49 and 70 ). [ 57 ] This is not a case about “irregularities” in the electoral process impugning some of the votes cast, as addressed in Opitz .

The objection to the election of the respondent MPs in this instance is based on allegations of “fraud or corrupt or illegal practices that affected the result of the election” made against a person or persons unknown. As the Supreme Court noted in raising the bar for irregularities by analogy to the other language used in

section 524 , these are very serious matters. Where they occur, the electoral process will be corroded ( Opitz , at paragraph 43 ). [ 58 ] Examples of “corrupt practices” and “illegal practices” are given in the statute but no formal definition of these terms or of

“fraud” is provided. There are a number of

Part 19 provisions dealing with offences that would constitute fraud or corrupt or illegalpractices, such as wilfully preventing or endeavouring to prevent an elector from voting (paragraphs 281(

g) and 491(3)(d)), and inducinga person by pretence of contrivance to vote or refrain from voting or to vote or refrain from voting for a particular candidate in anelection (paragraph 482(b)). The Act also creates offences that may apply to the actions of candidates and their official agents under theheading of “illegal and corrupt practices” in

section 502, which may also fall within the scope of

section 524. [59] While the commission of these

Part 19 offences may constitute electoral fraud or corrupt or illegal practices for the purposes ofsection 524, the construction of those terms in

section 524 is not limited to the scope of those offences. There is no indication in the Actthat such was the intent of Parliament. [60] As stated at paragraph 36 of the majority’s reasons in Opitz, “The words of

an Act are to be read in their ‘entire context and intheir 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 paragraph 26, citing E. A. Driedger, Construction ofStatutes (2nd ed. 1983), at page 87. Protecting the integrity of the democratic process is a central purpose of the Act in order to ensurethe constitutional right to vote and the enfranchising purpose of the statute. In the context of

section 524, “fraud”, “corrupt practices” or“illegal practices” should therefore be defined in their ordinary and grammatical sense employing the dictionary

definitions of the wordsto serve that purpose.

(3) The meaning of “fraud” in subsection 524(1) [61] In the course of argument, counsel drew my attention to statements by an official before the Senate Committee on Legal andConstitutional Affairs when Bill C-2, the proposed new Canada Elections Act, was before Parliament in April 2000. The statement wasto the effect that the intent of the Government was to adopt a meaning of “fraud” which corresponded to the meaning in the criminalcontext: testimony of Mr.

Michael Peirce, counsel, Director, Legal Operations, Legislation and House Planning, Privy Council Office, inthe Senate of Canada, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs (5 April 2000). [62] While such statements are of assistance in understanding the intent of the proponents of a legislative measure, they do notdetermine the parliamentary intent.

Applying the ordinary dictionary definition of the word, fraud is “1 the action or an instance ofdeceiving someone in order to make money or obtain an advantage illegally. 2 a person or thing that is not what it is claimed or expectedto be. 3 a dishonest trick or stratagem”: Canadian Oxford Dictionary, 2nd ed. 2004, sub verbo “fraud”. [63] The concept of fraud invalidating transactions of a civil nature has a long history in the common law.

In civil law, fraud is aknowing misrepresentation of the truth or concealment of a material fact giving rise to a claim of damages for the loss sustained or theavoidance of a contract: Bryan A. Garner, editor in chief, Black’s Law Dictionary, 7th ed. (St. Paul, Minnesota: West Group, 1999). [64] As discussed by Justice Lederer, at paragraph 47 of Wrzesnewskyj, above: “Fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3)recklessly, careless whether it be true or false.” (see Derry v. Peek, [1886-1890] All E.R.

Rep. 1 (H.L.); adopted in Vale v. Sun LifeAssurance Co. of Canada (1998), (ON SC), 39 O.R. (3d) 444, [1998] O.J. No. 6465 (Gen. Div.), at para. 18; andGregory v. Jolley (2001), (ON CA), 54 O.R. (3d) 481, [2001] O.J. No. 2313 (C.A.), at para. 15; as quoted in Canadav. Granitile Inc., [2008] O.J.

No. 4934, (S.C.J.), at para. 286). [65] In the context of the Act as a whole, the object of the Act and the ordinary and grammatical meaning of fraud, it is sufficient toshow that a false representation has been made in an attempt to prevent electors from exercising their right to vote for the candidate oftheir choice: Friesen v. Hammell, 1999 BCCA 23, [1999] 5 W.W.R. 345, at paragraph 75. [66] The respondent MPs contend that if the acts alleged to be contrary to

section 524 also constitute offences under the Act, theymust be proven to the standard of beyond a reasonable doubt. In making that argument counsel for the respondent MPs relied uponjurisprudence under the old Dominion Controverted Elections Act. That statute, as I noted above, is of little assistance in interpreting themodern legislation as the civil consequences of a violation, such as annulment, flowed from the conviction of the perpetrator. It was,therefore, necessary to first establish the guilt of an individual on the criminal law standard. That is no longer the case as I read section524 and the related provisions in

Part 20. Authorship of the fraud and the guilt of any person or persons are not material. What is relevantis the fact of the fraud and the effect it had on the outcome. [67] As discussed by Justice Lederer, at paragraph 53 of Wrzesnewskyj: In the present case, there is no charge; no one is at risk of any penalty being imposed as a result of any finding that may be made, norhas anyone been convicted of any offence under the Canada Elections Act.… In Johnson v. Yake, the election was declared void becausethe two individuals were found guilty of such offences.

The finding of guilt was “…the most important point…”.… Under s. 51of thelegislation applicable in that case, a candidate’s election would be void if it was found that any corrupt or illegal practice had beencommitted by the candidate and/or his agent. The offences charged would have to be proven beyond a reasonable doubt, but the voidingof the election flowed automatically from the convictions. [Emphasis in original.] [68] A finding of guilt is no longer “the most important point”. The Quebec Court of Appeal reached a similar conclusion ininterpreting the provisions of the Quebec Election Act, R.S.Q., c. E-3.3.

In Thérien c. Pellerin, , [1997] R.J.Q. 816(C.A.), the appellant challenged the constitutionality of

section 465 of that Election Act, which stipulates that the standard of proof incivil matters applies in an application to oppose an election. The appellant contended that a declaration of annulment of an election couldresult in the suspension of his political rights, a sanction he characterized as penal and thus requiring proof beyond a reasonable doubt.The Court of Appeal disagreed, holding at paragraphs 118–119 that the two aspects of control over elections are distinct and require theapplication of different substantive principles and rules of evidence.

In particular, the fact that a breach of the statute might result in theinvalidity of an election did not require the application of the criminal standard of proof. [69] I agree with the submission of the Chief Electoral Officer that any action or instance meeting the dictionary definition of fraud

would constitute electoral fraud where it was done in contravention of a provision of the Canada Elections Act or where it served to defeat a process provided for in that Act. It seems to me to be clear that deliberately misinforming electors about their polling location would thus be fraud within the meaning of

section 524 and is provable on the civil standard. [ 70 ] I also accept the submissions of the applicants and the Chief Electoral Officer that in considering whether the integrity of the electoral process has been compromised, the Court may take into account admissible evidence which shows that the fraud was of a broader scope than the manifestations of it which occurred in a single district that is the subject of an application.

That is of relevance in these proceedings because of the evidence of fraud occurring in the Guelph district. (4) “… that affected the result of the election” [ 71 ] This phrase speaks to the election results as a whole in each district. It is not necessary that the fraud or corrupt or illegal practice affected the vote of the elector or candidate who brings an annulment application.

But it does require that one or more votes were improperly cast or denied in the district where the application is brought and that this had an effect on the outcome in that riding. [ 72 ] As the majority in Opitz observed at paragraph 25 , “affected the result” includes a situation where a person entitled to vote was improperly prevented from doing so. In an election marred by procedural irregularities or electoral fraud, even one invalid or suppressed vote could in principle affect the result.

But would it justify annulment? [ 73 ] In Opitz , at paragraph 61 , the Supreme Court noted that 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.

The applicants rely on this to assert that they need only raise a prima facie case of fraud from which an inference may be drawn that the results were affected and that, having done so, the burden of proof then shifts to the respondents. [ 74 ] The Supreme Court’s reference to a prima facie case arose in the specific context where the applicant could not directly prove that a non-entitled person voted. The Court recognized that prima facie proof that an irregularity occurred may be sufficient to permit the necessary factual inferences to be drawn to meet the civil standard of proof.

In those circumstances, the respondent bears the risk of annulment if it can not be established that an ineligible vote was not cast or that it did not affect the results. Absent a statutory direction to the contrary, which is not present here, the burden of proof never shifts to the responding party and the standard remains that of the balance of probabilities: F.H. v. McDougall , 2008 SCC 53 , [2008] 3 S.C.R. 41, at paragraph 40 . [ 75 ] In Opitz , the Supreme Court used the “magic number” test to determine whether the application judge should have annulled the result.

The test was explained at paragraphs 71–73: 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). 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. 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. [ 76 ] The majority acknowledged, at paragraph 73, “that another, more realistic method for assessing contested election applications might be adopted by a court in a future case.” The Supreme Court thus left open the question of whether irregularities could be such as to call into question the integrity of the electoral process.

That conclusion may be reached more easily, I expect, where the ground cited for annulment is not irregularities at the ballot box but electoral fraud, corruption or illegality. [ 77 ] The Chief Electoral Officer submitted that the Court might consider what it termed a “reverse magic number test”—where the number of individuals who were prevented from voting as a result of the fraud exceeds the margin of victory of the successful candidate —to determine whether the results of the vote was affected in each riding.

The “reverse magic number test” has the same inherent bias described by the Supreme Court at paragraph 74 of Opitz ; it assumes that the individuals who did not vote would all have voted identically, which in the reverse test would mean not voting for the successful candidate. In this context it bears the added complication that the suppressed votes may have been cast for several unsuccessful candidates.

There is no assurance that the second-place finisher would have been successful. [ 78 ] The applicants contend that the Court may annul the election either where the number of impugned votes is sufficient to cast doubt upon the true winner or where the fraudulent activities are such as to call into question the integrity of the electoral process.

They argue that the election may be annulled if fraud casts doubt on its integrity even if the fraud does not raise doubts as to the true winner, relying on the Supreme Court’s comments at paragraph 43 of Opitz : 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 .) [ 79 ] The assessment of whether the impact of fraud affecting the result of the election is sufficient to warrant annulling the election

result falls within the application of the judge’s discretion under

section 531. If the number of suppressed votes is sufficient to cast doubton the true winner, the Court has an easier task. Absent a clear finding to that effect, the more difficult question is whether the fraud,corrupt or illegal practice, if proven, was sufficiently serious to call the integrity of the election process into question. [80] The applicants cite American jurisprudence for the notion that election results may be overturned where fraud has affected theintegrity of the election regardless of whether there is evidence of the number of votes affected.

The American cases point to thedifficulty in each instance of establishing how votes would have been cast if the election had not been overshadowed by irregularities orelectoral fraud. But in each case it was found to matter whether doubt had been cast on the outcome even if the contestants could notprove that they would have been elected but for the fraud or irregularity: Penta v. City of Revere, et al., 8 Mass. L. Rep. 106 (Super. Ct.1997), at footnote 20; Gooch v. Hendrix, 851 P.2d 1321 (Cal. Sup. Ct. 1993), at page 1331; Valence v. Rosiere, 675 So.2d 1138 (La. Ct.App. 1996), at page 1139; Marks v.

Stinson, 19 F.3d 873 (3d Cir. 1994), at page 886; Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967), atpages 662 and 664. [81] What may constitute a corrosive effect on the integrity of the electoral process will depend on the facts of each case. I do not readthe comments of the majority in paragraph 43 of Opitz as providing authority for the proposition that the Court may overturn electionresults in every case in which electoral fraud, corruption or illegal practices have been demonstrated. In that paragraph, the SupremeCourt cited Cusimano v.

Toronto (City), 2011 ONSC 7271 , 93 M.P.L.R. (4th) 32, at paragraph 62: “An election will only be setaside where the irregularity either violates a fundamental democratic principle or calls into question whether the tabulated vote actuallyreflects the will of the electorate.” [82] At paragraph 48 of Opitz, the majority cautioned that annulling an election would disenfranchise not only those persons whosevotes were disqualified (in the context of an irregularities case) but every elector who voted in the riding.

That suggests, in my view, thatthe Court should only exercise its discretion to annul when there is serious reason to believe that the results would have been differentbut for the fraud or when an electoral candidate or agent is directly involved in the fraud. [83] In

summary, there are three steps required to annul under the Act in the context of the vote suppression allegations before theCourt. The applicants must first demonstrate one of the four circumstances in paragraph 524(1)(b): irregularities, fraud, corrupt practices,or illegal practices. Once the first step has been achieved, if even a single vote is shown to not have been cast due to one of the fourabove-circumstances in a subject riding, the Court acquires the discretionary power to annul the results in that district under subsection531(2).

The third step is for the Court to consider either the “magic number” test (explained in Opitz, at paragraphs 71–72) or anotherappropriate test (envisaged by Opitz, at paragraph 73) and decide whether to exercise its discretionary power.

(5) When must an application to annul be made? [84] The time limit for making an application is set out in

section 527; Timelimit 527. An application based on a ground set out in paragraph 524(1)(

b) must be filed within 30 days after the later of (

a) the day on which the result of the contested election is published in the Canada Gazette, and (

b) the day on which the applicant first knew or should have known of the occurrence of the alleged irregularity, fraud, corruptpractice or illegal practice. [Emphasis added.] [85] Pursuant to subsection 526(1) of the Act, applications must be accompanied by security for costs in the amount of $1 000, andmust be served on the Attorney General of Canada, the Chief Electoral Officer, the returning officer of the electoral district in questionand all the candidates in that electoral district.

The Act is silent as to whether service must be effected prior to filing but the usualpractice is for originating notices to be filed first and served later. Rule 304 of the Federal Courts Rules provides that an originatingnotice of application must be served on the respondents and proof of service filed within 10 days of issuance of the notice. [86] There does not appear to be any jurisprudence on the meaning and effect of the requirement under this Act that security for costsaccompany the application. It was in the predecessor legislation and dates back for many years.

The object of a similar provision, ofequal long-standing, in

section 60 of the Patent Act [R.S.C., 1985, c. P-4], is to deter irresponsible invalidation actions: Apotex Inc. v.Hoffman-La Roche Ltd., (FC), [1980] 2 F.C. 586 (T.D.), at page 590. The amount, $1 000, was no doubt a significantdeterrent in 1900 but is clearly inadequate to serve that purpose today. Where the plaintiff has failed to make payment in proceedingsunder the Patent Act, the Court has been prepared to relieve against the infraction: Teva Canada Ltd. v. OSI Pharmaceuticals, Inc.,[2012] F.C.J. No. 1670 (F.C.) (QL), at paragraph 21.

Similarly, I find that a defect under this Act may be cured by payment into courtsubsequent to the filing of the application. It is not a ground for dismissing the application at this stage of the proceeding. [87] The time limit in

section 527 is mandatory. The Act does not allow for the exercise of discretion by the Court to extend the timewithin which an application may be brought. This was also the rule for the similar provision in the predecessor legislation,

section 12 ofThe Dominion Controverted Elections Act [R.S.C. 1906, c. 7]: Money v. Rankin (1909), 18 O.L.R. 661 (H.C.J.), at pages 662–663. [88] Parliament’s intent appears to be that such applications should be brought and dealt with without delay. The respondent MPs andthe Chief Electoral Officer observe that the Act contemplates the filing of applications on the basis of mere allegations before they canbe substantiated, in order to meet the limitation period. This may have the undesirable effect of encouraging litigation that is not wellfounded but such applications may, of course, be withdrawn if evidence to support them is not uncovered. [89] Where paragraph 527(

a) does not apply, as here, the 30-day limit begins to run only when the occurrence was discovered or wasreasonably discoverable in the circumstances. There is no outside time limit in the Act for bringing an application on freshly discoveredgrounds, other than that presumably imposed by the parliamentary term as the matter would then become moot when another electionwas convened. [90] In interpreting paragraph 527(b), the Court should seek to find a balance between the objective of discouraging untimelyapplications that have no prospect of success and those that address serious concerns with the integrity of the electoral process.

(6) Section 527, “knew or should have known” [91] The legislation leaves the door open for an application that is brought within 30 days of the day when the elector or candidate“knew or should have known” of the occurrence (in French, “a appris, ou aurait dû savoir”). The language “knew or should haveknown” allows for some flexibility in determining on the evidence when the applicant had actual or imputed knowledge of theoccurrence sufficient to start the 30-day deadline running. [92] The first part of the phrase “knew or should have known” refers to actual knowledge on the part of the applicant.

The words “orshould have known” impose an objective standard. Prothonotary Milczynski described that aspect of the test in Bielli, above, atparagraph 22: What an applicant “should have known” is a factual inquiry, guided by the principles developed in the case law with respect todiscoverability and the reasonable inferences that can be drawn from the facts and surrounding circumstances of a particular case.

It isnot a determination based on the subjective or individual perception or experience, but what is reasonable to conclude regarding what aperson ought to have known in the circumstances. [93] It is a question of fact for the court to determine whether an applicant knew or should have known of the event earlier andbrought the application in a more timely manner. [94] Having set out the legal framework that governs this decision, I will now turn to the issues in this case beginning with themotions that remained outstanding at the start of the hearing. IV. Analysis A. Preliminary motions

(1) Was there maintenance and champerty by the Council of Canadians? [95] At common law, maintenance is the promotion or support of contentious legal proceedings by a stranger who has no directconcern in the proceedings. It consists, usually, in financial assistance to bear the whole or part of the cost of the action or in saving alitigant expenses that might otherwise be incurred. Champerty is an aggravated form of maintenance in unlawfully maintaining an actionin consideration of an agreement to receive part of anything that may be gained as a result of the proceedings, or some other profit:Woroniuk v.

Woroniuk (1977), (ON SC), 17 O.R. (2d) 460 (S.C.), at page 462, citing John G. Fleming, The Law ofTorts, 3rd ed. [Sydney: Law Book, 1965], pages 592–593. [96] The concept of maintenance and champerty has been preserved in some provincial legislation (An Act respecting Champerty,R.S.O. 1897, c. 327) and remains an active common law doctrine in some provinces and in Federal Court practice: see for example,Fredrickson v. Insurance Corp. of British Columbia (1986), (BC CA), 28 D.L.R. (4th) 414 (B.C.C.A.); Ernst &Young Inc. v.

Chartis Insurance Company of Canada, 2012 ONSC 5020 , 14 C.C.L.I. (5th) 270, at paragraph 146; Tacan v.Canada, 2003 FC 915, 237 F.T.R. 304, at paragraphs 6–11. [97] Where the concept remains alive, two requirements are necessary. The first is that the party must have an “improper motive” inmaintaining the action. The second is that the plaintiff must be otherwise not disposed to enforce its legal rights against the defendant,but for the “officious intermeddling” of the maintainer: McIntyre Estate v. Ontario (Attorney General), , 61 O.R. (3d)257 (C.A.) (McIntyre Estate); Buday v.

Locator of Missing Heirs Inc. (1993), (ON CA), 16 O.R. (3d) 257 (C.A.);Stetson Oil & Gas Ltd. v. Thomas Weisel Partners Canada Inc., (Ont. Sup. Ct.). [98] The respondent MPs’ motion alleged that the applicants in this case were enlisted to serve as surrogates for the Council, anorganization said to have a long-standing animus against the Conservative Party of Canada.

They asserted that the Council was profitingby these applications in that it was conducting fund-raising activities in support of the applicants and benefited from the increased profilethat it had gained from this case. [99] The respondent MPs claim that the Council has an advantage as it is not subject to the rules on political party financing.

Whilethat may be true, the applicants reply, the Council is not a registered charity and contributions in its hands are fully taxed whereascontributions to the Conservative Party, which may be used to pay the respondent MPs’ costs for this litigation, are subsidized by asmuch as 75 percent by the taxpayer (Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, subsection 127(3); Canada Elections Act, subsection438(3)). [100] In support of the motion, the respondent MPs filed the affidavit of Peter J.

Henein, a lawyer with the firm that is counsel to therespondent MPs in these proceedings, to which were attached 84 exhibits consisting of some 700 pages of documentary material takenfrom the Council’s website, news reports, press releases and other sources. Much of the content of the 118 paragraphs of the affidavitconsists of statements alleging political motivations on the part of Maude Barlow, the Council’s National Chairperson, and StevenShrybman, counsel for the applicants in these proceedings and of record for the Council in other proceedings.

It is alleged, among otherthings, that the litigation in this case was motivated by animus against Prime Minister Stephen Harper and the Conservative Party ofCanada and that the Council was closely associated with the New Democratic Party and labour unions. (

a) Is Mr. Henein’s affidavit admissible? [101] As noted above, a motion was brought by the applicants to strike the Henein affidavit on the ground that it was contrary to rule 82of the Federal Courts Rules. The motion to strike was withdrawn without prejudice to the applicants’ right to impugn the evidence at thehearing. [102] Rule 82 provides as follows:

Use of solicitor’saffidavit 82. Except with leave of the Court, a solicitor shall not both depose to an affidavit and present argument to theCourt based on that affidavit. [103] The rule has been applied not just to counsel of record but also to members of the same law firm that represents one of the partiesbefore the Court: Addo v.

OT Africa Line, 2006 FC 1099, 297 F.T.R. 283. [104] In applying the rule, the Court may accept an affidavit from a member of the firm of solicitors representing a party on a motionwhere the affidavit is restricted to non-controversial matters such as the furnishing of undisputed documents or the recitation ofundisputed facts. However, where such affidavits go further and include matters that are disputed or controversial or are expressions ofopinion or state of mind, the Court will be reluctant to accept or give weight to such evidence: AB Hassle v.

Apotex Inc., 2008 FC 184, 65C.P.R. (4th) 332, at paragraph 46. [105] As discussed by Stratas J.A. in Pluri Vox Media Corp. v. Canada, 2012 FCA 18, 2012 DTC 5039, at paragraphs 3 to 13, thepurpose of rule 82 is to prevent, as much as possible, “the invidious circumstances that can arise when lawyers act as both witnesses andadvocates in the same matter” (paragraph 3). In that case, the affidavit was admitted given the uncontroversial nature of the exhibits andtheir minimal importance to the motion. That is not the case here. Mr.

Henein’s affidavit goes directly to the substance of the motion andto the merits of the applications. [106] The Court may have been inclined to overlook the rule 82 difficulty with Mr. Henein’s affidavit had it been confined to the factssupporting the motion. The purpose of an affidavit is to adduce facts relevant to the dispute without gloss or explanation: Canada(Attorney General) v. Quadrini, 2010 FCA 47, 399 N.R. 33, at paragraph 18.

However, the Henein affidavit is replete with statements ofopinion, argumentation, allegations against opposing counsel and conclusions of law on the very issues which are before the Court fordetermination. [107] The usual remedy for an affidavit that contains portions that are tendentious,

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