Opitz v. Wrzesnewskyj

Opitz v. Wrzesnewskyj
Collection
Supreme Court Judgments
Date
2012-10-25
Neutral citation
2012 SCC 55
Report
[2012] 3 SCR 76
Case number
34845
Judges
McLachlin, Beverley; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Moldaver, Michael J.
On appeal from
Ontario
Subjects
Elections
Evidence
Notes
SCC Case Information: 34845
Decision Content
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 be annulled because of votes cast by individuals who were not entitled to vote under the Act .
An individual must be entitled to vote before casting a ballot for the Member of Parliament for the riding where she is ordinarily resident. The Act sets out a comprehensive scheme defining entitlement to vote. In general, there are three prerequisites: qualification, registration and identification. First, a voter must be qualified, by being a Canadian citizen and 18 years of age or older. Second, she must be registered, generally either by being on the list of electors or filing a registration certificate. Third, she must be properly identified at the polling station, whether by providing appropriate pieces of identification or by taking an oath and being vouched for by another elector.
Being a qualified elector, in terms of age and citizenship, is a necessary but not sufficient condition for entitlement to vote. The registration and identification prerequisites of entitlement must also be satisfied. These are fundamental safeguards for the integrity of the electoral system. Nothing in the Act suggests that a person who on election day is not entitled to vote should be permitted to do so and to establish her entitlement later.
A court may annul an election under s. 531(2) if the applicant establishes that there were “irregularities . . . that affected the result of the election” within the meaning of s. 524(1) (b). The term “irregularities” should be interpreted to mean failures to comply with the requirements of the Act , unless the deficiency is merely technical or trivial. For “irregularities” to have “affected the result of the election”, they must be of a type that could affect the result of the election and impact a sufficient number of votes to have done so. Votes cast by persons not entitled to vote are irregularities that can affect the result of the election, because they are votes that should not have been cast. If the number of such votes equals or exceeds the winner’s plurality, then the result of the election is affected and the election should be annulled.
Since election results benefit from a presumption of regularity, the applicant bears the burden of establishing, on a balance of probabilities, that there were “irregularities . . . that affected the result of the election”. Here, the applicant had to establish that irregularities resulted in non‑entitled voters casting votes. In the absence of palpable and overriding error, a judge’s conclusions on whether a voter complied with the entitlement provisions of the Act should not be disturbed.
In this case, the application judge applied the correct burden of proof and, while he improperly set aside some votes, he did not err with respect to 65 ballots cast by persons not entitled to vote. As this exceeds the winner’s plurality of 26 votes, the election should be annulled.
Irregularities in identification led the application judge to set aside votes at polls 21, 174, 502 and 30. He did not err in setting aside 27 votes on this basis. These votes were cast by individuals using the oath and vouching procedure under the Act to identify themselves at the polling station.
At poll 21 the evidence supported the application judge’s conclusion that vouching was required for eight voters but did not occur. Similarly, the judge did not err in concluding that any vouching that occurred for eight voters at poll 174 was improper. Finally, seven voters at poll 502 and four voters at poll 30 were vouched for by individuals not resident in the polling division at which they were vouching, contrary to the Act .
Irregularities in registration led the application judge to set aside votes cast under the registration certificate procedure at polls 426, 174, 89 and 31. He did not err in setting aside 38 votes on this basis. Individuals voting by registration certificate must make a declaration of qualification, certifying their age and citizenship. This requirement is vital to entitlement to vote.
The evidence supported the application judge’s conclusion that no declaration of qualification was made for 26 registration certificate voters at poll 426. No registration certificates were found for these voters and the relevant pages of the poll book were blank. The application judge did not err in concluding that the required declaration was not made by one registration certificate voter at poll 174 and nine registration certificate voters at poll 89. The evidence supporting these findings included the absence of voter signatures from the declaration of qualification on the registration certificates.
Regarding 15 votes cast by registration certificate voters at poll 31, the evidence supported the application judge’s conclusion that declarations of qualification were never made. The registration certificates could not be found. However, while two of those votes were properly set aside by the application judge, the remaining 13 should not have been. Three voters had already satisfied the registration prerequisite of entitlement by being on the list of electors for polling division 31. The remaining 10 voters were on lists of electors for other polling divisions within the electoral district. In the circumstances, the fact that votes were cast at the wrong polling station within the riding was a technical or trivial deficiency and not an irregularity within the meaning of s. 524(1) (b).
Since the 65 votes properly set aside exceed the 26‑vote plurality, the election should be annulled.
The motion to adduce fresh evidence should be dismissed. After‑the‑fact information that a non‑entitled voter was qualified is not relevant to whether he or she was entitled to receive a ballot on election day. Furthermore, the reliability of the evidence in this case is questionable. Moreover, admitting the evidence could not affect the disposition of the appeal, given the number of votes that were properly set aside by the application judge.
Cases Cited
By Rothstein and Moldaver JJ.
Applied: R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517; approved: Camsell v. Rabesca, [1987] N.W.T.R. 186; Flookes and Long v. Shrake (1989), 100 A.R. 98; disapproved: O’Brien v. Hamel (1990), 73 O.R. (2d) 87; Nielsen v. Simmons (1957), 14 D.L.R. (2d) 446; Hogan v. Careen and Hickey (1993), 116 Nfld. & P.E.I.R. 310; Blanchard v. Cole, [1950] 4 D.L.R. 316; referred to: Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912; Henry v. Canada (Attorney General), 2010 BCSC 610, 7 B.C.L.R. (5th) 70; Sauvé v. Canada (Attorney General) (1992), 7 O.R. (3d) 481, aff’d [1993] 2 S.C.R. 438; Belczowski v. Canada, [1992] 2 F.C. 440, aff’d [1993] 2 S.C.R. 438; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Haig v. Canada, [1993] 2 S.C.R. 995; Longley v. Canada (Attorney General), 2007 ONCA 852, 88 O.R. (3d) 408, leave to appeal refused, [2008] 1 S.C.R. x; 2747‑3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919; Cusimano v. Toronto (City), 2011 ONSC 7271, 287 O.A.C. 355; Abrahamson v. Baker and Smishek (1964), 48 D.L.R. (2d) 725; Beamish v. Miltenberger, [1997] N.W.T.R. 160.
By McLachlin C.J. (dissenting)
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Knott, 2012 SCC 42, [2012] 2 S.C.R. 470; Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827; Henry v. Canada (Attorney General), 2010 BCSC 610, 7 B.C.L.R. (5th) 70; Haig v. Canada, [1993] 2 S.C.R. 995; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Beamish v. Miltenberger, [1997] N.W.T.R. 160; Wright v. Koziak, [1981] 1 W.W.R. 449; Morgan v. Simpson, [1974] 3 All E.R. 722; O’Brien v. Hamel (1990), 73 O.R. (2d) 87; Blanchard v. Cole, [1950] 4 D.L.R. 316; McMechan v. Dow (1968), 67 D.L.R. (2d) 56; Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Dewdney Election Case, [1925] 3 D.L.R. 770; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Palmer v. The Queen, [1980] 1 S.C.R. 759.
Statutes and Regulations Cited
Canada Elections Act, S.C. 2000, c. 9 , Part 1, ss. 3, 6, 32, 44, 93, 96 et seq., 106, 109, 120(1), 125, Part 9, 143, 144, 148.1, 149, 161, 162, 509, 510, 511, 517, Part 20, 524, 525(3), 531, 532(1), 538.
Canadian Charter of Rights and Freedoms, ss. 3 , 33 .
Constitution Act, 1867, ss. 40 , 51 , 51A .
Rules of the Supreme Court of Canada, SOR/2002‑156, rr. 3, 47.
Supreme Court Act, R.S.C. 1985, c. S‑26, s. 62(3) .
Authors Cited
Boyer, J. Patrick. Election Law in Canada: The Law and Procedure of Federal, Provincial and Territorial Elections, vol. I. Toronto: Butterworths, 1987.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Huefner, Steven F. “Remedying Election Wrongs” (2007), 44 Harv. J. on Legis. 265.
Oxford English Dictionary, 2nd ed., vol. VIII. Oxford: Clarendon Press, 1989, “irregular”.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.
APPEAL and CROSS‑APPEAL from a judgment of the Ontario Superior Court of Justice (Lederer J.), 2012 ONSC 2873, 110 O.R. (3d) 350, [2012] O.J. No. 2308 (QL), 2012 CarswellOnt 6422, allowing a contested election application. Appeal allowed and cross‑appeal dismissed, McLachlin C.J. and LeBel and Fish JJ. dissenting.
W. Thomas Barlow, Kent E. Thomson, Matthew I. Milne‑Smith and Nicholas Shkordoff, for the appellant/respondent Ted Opitz.
Gavin J. Tighe, Stephen A. Thiele and Guy Régimbald, for the respondent/appellant Borys Wrzesnewskyj.
David Di Paolo, Alessandra Nosko and Trevor Knight, for the respondents Marc Mayrand (Chief Electoral Officer) and Allan Sperling (Returning Officer, Etobicoke Centre).
Written submissions only by the respondent Sarah Thompson.
Harold Turnham, for the intervener Keith Archer (Chief Electoral Officer of British Columbia).
William W. Shores, Q.C., and Fiona Vance, for the intervener O. Brian Fjeldheim (Chief Electoral Officer of Alberta).
Allison A. Thornton and Shashu Clacken Reyes, for the intervener the Canadian Civil Liberties Association.
No one appeared for the respondent the Attorney General of Canada.
No one appeared for the respondent Katarina Zoricic.
The judgment of Deschamps, Abella, Rothstein and Moldaver JJ. was delivered by
Rothstein and Moldaver JJ. —
I. Introduction
[1] A candidate who lost in a close federal election attempts to set aside the result of that election. We are asked to disqualify the votes of several Canadian citizens based on administrative mistakes, notwithstanding evidence that those citizens were in fact entitled to vote. We decline the invitation to do so. The Canadian Charter of Rights and Freedoms and the Canada Elections Act, S.C. 2000, c. 9 (“Act ”), have the clear and historic purposes of enfranchising Canadian citizens, such that they may express their democratic preference, and of protecting the integrity of our electoral process. Following these objectives and the wording of the Act , we reject the candidate’s attempt to disenfranchise entitled voters and so undermine public confidence in the electoral process.
[2] At issue in this appeal are the principles to be applied when a federal election is challenged on the basis of “irregularities”. We are dealing here with a challenge based on administrative errors. There is no allegation of any fraud, corruption or illegal practices. Nor is there any suggestion of wrongdoing by any candidate or political party. Given the complexity of administering a federal election, the tens of thousands of election workers involved, many of whom have no on-the-job experience, and the short time frame for hiring and training them, it is inevitable that administrative mistakes will be made. If elections can be easily annulled on the basis of administrative errors, public confidence in the finality and legitimacy of election results will be eroded. Only irregularities that affect the result of the election and thereby undermine the integrity of the electoral process are grounds for overturning an election.
[3] The 41st Canadian federal election took place on May 2, 2011. In the electoral district (or “riding”) of Etobicoke Centre, 52,794 votes were cast. After a judicial recount, Ted Opitz was the successful candidate with a plurality of 26 votes. Borys Wrzesnewskyj was the runner-up.
[4] Mr. Wrzesnewskyj applied under s. 524(1) (b) of the Act , to have the election annulled, on the basis that there were “irregularities . . . that affected the result of the election”. The relevant provisions of the Act are contained in the Appendix to these reasons. The application was heard by Justice Lederer of the Ontario Superior Court of Justice (2012 ONSC 2873, 110 O.R. (3d) 350). Lederer J. concluded that 79 votes amounted to irregularities that affected the result of the election. He declared the election “null and void” (para. 154). Mr. Opitz appealed as of right to this Court and Mr. Wrzesnewskyj cross-appealed (s. 532(1) of the Act ).
[5] For the reasons that follow, we would allow the appeal and dismiss the cross-appeal. While we have only discussed 59 votes in these reasons, from our analysis of all of the evidence, we have no reason to believe that any of the other 20 voters did not in fact have the right to vote.
II. Ontario Superior Court of Justice, 2012 ONSC 2873, 110 O.R. (3d) 350
[6] The application proceeded on the basis that no fraud or wrongdoing was alleged. The submissions were restricted to alleged irregularities. In conformity with the statutory direction to resolve the contest in a summary way (s. 525(3) of the Act ), Mr. Wrzesnewskyj agreed to limit his submissions to alleged irregularities at 10 of the more than 230 polls that made up the electoral district of Etobicoke Centre.
[7] The application judge first observed that when examining the conduct of an election, there is a presumption that it was conducted in accordance with the requirements of the governing legislation (para. 26). He further found that the onus was on the applicant throughout to prove, on a balance of probabilities, that there were irregularities and that they affected the result (paras. 45 and 51).
[8] The application judge next determined that the purpose of the Act was to enfranchise Canadian citizens (paras. 56-60). Hence, the legislation was to be interpreted liberally because a strict interpretation could detract from that goal. However, he also found that the word “irregularity”, an undefined term in the Act , should be given a broad interpretation (paras. 62 and 67).
[9] Finally, in determining whether an irregularity “affected the result of the election”, the application judge concluded that if the number of irregular votes exceeded the plurality of the winning candidate, in this case 26, the election could not stand (para. 71). The application judge set aside a total of 79 votes. Because the number of votes set aside, 79, exceeded the plurality of 26, he declared the election “null and void”.
III. Analysis
A. The Canada Elections Act
[10] The right of every citizen to vote, guaranteed by s. 3 of the Charter , lies at the heart of Canadian democracy. The franchise has gradually broadened in Canada over the course of history from male property owners 21 years of age and older to the present universal suffrage of citizens aged 18 and over. Universal suffrage is reflected in s. 3 of the Act , which provides that a person is “qualified” to vote if he or she is a Canadian citizen and is 18 years of age or older.
[11] Canada is divided into “electoral districts” (commonly known as “ridings”): Charter, s. 3 , and Constitution Act, 1867, ss. 40 , 51 and 51A . Etobicoke Centre is an electoral district. Section 6 of the Act requires that a qualified elector be ordinarily resident in one of the polling divisions within the electoral district. Persons who are qualified as electors are entitled to vote for a member of Parliament for the electoral district in which the elector is ordinarily resident.
[12] The Act also sets out detailed procedures for voting that turn the constitutional right of citizens to vote into a reality on election day. What follows is a brief description of the procedural provisions that give rise to the issues in this appeal.
[13] Electoral districts in Canada are subdivided into polling divisions, each of which contains at least 250 electors (s. 538 of the Act ). For each polling division, a returning officer establishes one or more polling stations (s. 120(1) ). Each polling division considered in this judgment had only one polling station. Each station is overseen by a deputy returning officer (“DRO”) and a poll clerk (s. 32 ). Sometimes several polling divisions may have polling stations in the same building, at separate tables. Certain polling divisions cover only residents of two or more institutions, often senior citizens’ residences. In such cases, the returning officer can establish “mobile” polling stations to be located in each of the institutions (ss. 125 and 538(5) ). The Chief Electoral Officer (“CEO”) is required to maintain a national register of electors (“NROE”) containing the name, sex, date of birth and address of electors (s. 44 ). Between elections, the CEO updates the NROE using data from various government sources. Shortly after an election is called, the CEO prepares a preliminary list of electors (“PLE”) for each polling division, based on the NROE (s. 93). A process of revision of the PLE is then undertaken (ss. 96 ff.). Before polling day, official lists of electors (“OLEs”) are prepared for use at each polling station (s. 106 ).
[14] Many electors will be on the OLE of their assigned polling division, by “enumeration”. Since age and citizenship are prerequisites for inclusion on the OLE, those listed do not have to establish their age and citizenship when they come to vote. To vote, these electors must prove their identity and residence by one of three means: (a) providing government-issued identification with photo and address (s. 143(2)(a)); (b) providing two pieces of authorized identification, at least one of which establishes their address (s. 143(2)(b)); or (c) taking a prescribed oath and being vouched for by someone on the OLE in the same polling division (s. 143(3)). Once identity and residence are established, the voter is given a ballot.
[15] Electors who are not on the OLE can have their names added on election day by the process of “registration” (s. 161(1)). To register, the elector must provide proof of identity and residence. Where the elector satisfies these requirements, the DRO will complete a registration certificate and the elector will sign it (s. 161(4)). Electors who register must also establish their age and citizenship. This is accomplished by signing a declaration to that effect, which appears on the registration certificate.
[16] Section 161(5) of the Act provides that, where a registration certificate is completed, the OLE is deemed to have been modified in accordance with the certificate. After polling day, the returning officer uses the registration certificates to update the OLE, and the CEO creates a final list of electors (“FLE”) for each electoral district (s. 109 ). The FLE is an updated list containing the names of those electors who were enumerated on the OLE as well as those who voted by registration.
[17] Vouching is a procedure designed to enable persons to vote who lack appropriate identification. An elector may prove his or her identity by being vouched for by a person whose name appears on the list of electors for the same polling division. A voucher can only vouch once. A person who has been vouched for cannot vouch for someone else in the same election (s. 161(1)(b), (6) and (7)).
[18] The Act also establishes requirements for record-keeping by election officials. After the issue of the writ to call an election, a returning officer appoints one DRO and one poll clerk for each polling station in the electoral district for which he or she is responsible (s. 32). Once the DRO is satisfied that an elector’s identity and residence have been proven, the name of the elector is crossed off the OLE and the elector is allowed to vote (s. 143(4)). Once the elector has voted, the poll clerk is required to indicate on the list that the vote was cast by placing a check mark in a box set aside for that purpose (s. 162(b)). The poll clerk is also required to make entries in a “poll book”. The required entries include various matters, such as whether an elector has taken an oath, the type of oath he or she has taken and the fact that the elector has voted using a registration certificate (s. 162(f) and (j)).
B. Interpreting the Relevant Statutory Provision
(1) Part 20 of the Act
[19] Part 20 of the Act deals with contested elections. Section 524(1) provides:
524. (1) Any elector who was eligible to vote in an electoral district, and any candidate in an electoral district, may, by application to a competent court, contest the election in that electoral district on the grounds that
(a) under section 65 the elected candidate was not eligible to be a candidate; or
(b) there were irregularities, fraud or corrupt or illegal practices that affected the result of the election.
[20] The remedy the court may provide is in s. 531(2) :
531. . . .
(2) After hearing the application, the court may dismiss it if the grounds referred to in paragraph 524(1) (a) or (b), as the case may be, are not established and, where they are established, shall declare the election null and void or may annul the election, respectively.
The use of the word “respectively” means that where the grounds in s. 524(1) (a) are established, a court must declare the election null and void; where the grounds in s. 524(1) (b) are established, a court may annul the election. Conversely, a court may not annul an election unless the grounds in s. 524(1) (b) are established.
[21] The French version of the Act confirms this interpretation:
531. . . .
(2) Au terme de l’audition, [le tribunal] peut rejeter la requête; si les motifs sont établis et selon qu’il s’agit d’une requête fondée sur les alinéas 524(1) a) ou b), il doit constater la nullité de l’élection du candidat ou il peut prononcer son annulation.
[22] Under those provisions, if the grounds in para. (a) of s. 524(1) are established (the elected candidate was ineligible), then a court must declare the election null and void. In such circumstances it is as if no election was held. By contrast, if the grounds in para. (b) are established (there were irregularities, fraud or corrupt or illegal practices that affected the result of the election), a court may annul the election. Under these circumstances, a court must decide whether the election held was compromised in such a way as to justify its annulment.
[23] In deciding whether to annul an election, an important consideration is whether the number of impugned votes is sufficient to cast doubt on the true winner of the election or whether the irregularities are such as to call into question the integrity of the electoral process. Since voting is conducted by secret ballot in Canada, this assessment cannot involve an investigation into voters’ actual choices. If a court is satisfied that, because of the rejection of certain votes, the winner is in doubt, it would be unreasonable for the court not to annul the election.
(2) Meaning of “Irregularities . . . That Affected the Result of the Election”
[24] This case involves interpreting the phrase “irregularities . . . that affected the result of the election”. The phrase is composed of two elements: “irregularities” and “affected the result”. As we shall explain, “irregularities” are serious administrative errors that are capable of undermining the electoral process — the type of mistakes that are tied to and have a direct bearing on a person’s right to vote.
[25] “Affected the result” asks whether someone not entitled to vote, voted. Manifestly, if a vote is found to be invalid, it must be discounted, thereby altering the vote count, and in that sense, affecting the election’s result. “Affected the result” could also include a situation where a person entitled to vote was improperly prevented from doing so, due to an irregularity on the part of an election official. That is not the case here and we need not address it.
[26] In construing the meaning of “irregularities . . . that affected the result”, we have taken into account a number of aides to statutory interpretation, among them: (1) the constitutional right to vote and the objectives of the Act ; (2) the text and context of s. 524 ; and (3) the competing democratic values engaged.
(a) The Constitutional Right to Vote and the Objectives of the Act
[27] Canadian democracy is founded upon the right to vote. Section 3 of the Charter provides:
3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
[28] The fundamental purpose of s. 3 of the Charter was described in Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912, by Iacobucci J., for the majority, at para. 30:
In the final analysis, I believe that the Court was correct in Haig [v. Canada, [1993] 2 S.C.R. 995], to define s. 3 with reference to the right of each citizen to play a meaningful role in the electoral process. Democracy, of course, is a form of government in which sovereign power resides in the people as a whole. In our system of democracy, this means that each citizen must have a genuine opportunity to take part in the governance of the country through participation in the selection of elected representatives. The fundamental purpose of s. 3 , in my view, is to promote and protect the right of each citizen to play a meaningful role in the political life of the country. Absent such a right, ours would not be a true democracy.
[29] The constitutional guarantee of the right to vote in s. 3 of the Charter is a fundamental provision, not subject to constitutional override under s. 33 of the Charter . Section 3 provides that citizens have the right to vote “in an election of members of the House of Commons or of a legislative assembly”. The right to vote in the election of “members of the House of Commons” reflects Canada’s constitutional character as a parliamentary form of government. Citizens have the right to vote in a specific electoral district, choosing among various candidates who wish to be the Member of Parliament for that district: see Henry v. Canada (Attorney General), 2010 BCSC 610, 7 B.C.L.R. (5th) 70, at para. 139.
[30] Section 6 of the Act recognizes that all persons meeting the three requirements of age, citizenship and residence are “entitled” to vote. It reads:
6. Subject to this Act , every person who is qualified as an elector is entitled to have his or her name included in the list of electors for the polling division in which he or she is ordinarily resident and to vote at the polling station for that polling division.
Section 6 uses the term “polling division”. Polling divisions exist within electoral districts for administrative simplicity and voter convenience on election day (J. P. Boyer, Election Law in Canada: The Law and Procedure of Federal, Provincial and Territorial Elections (1987), vol. I, at p. 101). The Charter right to vote is for the Member of Parliament for the electoral district in which the voter resides.
[31] On a plain reading of s. 6 , qualification and residence in a polling division give an individual the entitlement or right to be included on the list of electors for that polling division, and to vote. Section 6 does not provide that inclusion on the list of electors is a prerequisite to the right to vote. Such a reading reverses the effect of the provision. Entitlement to be on the list and entitlement to vote are consequences of being a citizen, being of age and being resident in the polling division.
[32] In this regard, it should be noted that s. 6 is a complete definition of “entitlement” in the Act . The definition is not altered by any other provision. “Entitlement” consists only of the fundamental requirements of age, citizenship, and residence.
[33] In so concluding, we recognize that the opening words of s. 6 are “[s]ubject to this Act ”. However, a distinction must be made between the requirements of “entitlement” in s. 6 itself, which appears in Part 1 of the Act under the heading “Electoral Rights”, and the procedural mechanisms applicable on election day which appear in Part 9 of the Act under the heading “Voting”. The Act establishes procedures to allow those citizens who have the right to vote to do so on election day. For example, ss. 148.1 and 149 , which appear in Part 9, require procedures to be followed in establishing identity and residence, and in registering, before voting. These are procedural provisions designed to satisfy election officials that voters have the attributes that entitle them to vote. The purpose of procedural provisions in the Act is to enfranchise those persons having a right to vote under s. 6 , and to prevent persons without the right to vote, from voting.
[34] The procedural safeguards in the Act are important; however, they should not be treated as ends in themselves. Rather, they should be treated as a means of ensuring that only those who have the right to vote may do so. It is that end that must always be kept in sight.
[35] It is well accepted in the contested election jurisprudence that the purpose of the Act is to enfranchise all persons entitled to vote and to allow them to express their democratic preferences. Courts considering a denial of voting rights have applied a str