McEwing v. Canada (Attorney General)

McEwing v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2013-05-23
Neutral citation
2013 FC 525
File numbers
T-619-12, T-620-12, T-621-12, T-633-12, T-634-12, T-635-12
Notes
A correction was made on June 19, 2014
Reported Decision
Decision Content
Date: 20130523
Docket: T-619-12
T-620-12
T-621-12
T-633-12
T-634-12
T-635-12
Citation: 2013 FC 525
Ottawa, Ontario, May 23, 2013
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
T-619-12
SANDRA MCEWING AND BILL KERR
Applicants
and
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
AND BETWEEN:
T-620-12
KAY BURKHART
Applicant
and
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
AND BETWEEN:
T-621-12
JEFF REID
Applicant
and
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
AND BETWEEN:
T-633-12
KEN FERANCE
AND
PEGGY WALSH CRAIG
Applicants
and
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
AND BETWEEN:
T-634-12
YVONNE KAFKA
Applicant
and
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
AND BETWEEN:
T-635-12
THOMAS JOHN PARLEE
Applicant
and
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
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction............................................................................................................. 5
II. Background............................................................................................................. 7
III. The Statutory and Jurisprudential Framework...................................................... 14
A. The Canada Elections Act......................................................................... 14
B. Part 20 of the Act – CONTESTED ELECTIONS................................... 20
(1) The Act contemplates parallel criminal and civil processes........... 20
(2) The test, burden and standard of proof for invalidity................... 21
(3) The meaning of “fraud” in s 524(1)............................................... 25
(4) “…that affected the result of the Election.”................................. 29
(5) When Must an Application to Annul be Made?............................ 34
(6) Section 527,“knew or should have known”.................................. 36
IV. Analysis................................................................................................................. 37
A. Preliminary motions................................................................................... 37
(1) Was there maintenance and champerty by the Council of Canadians? 37
(a) Is Mr. Henein’s affidavit admissible?................................... 39
(b) Conclusion on maintenance and champerty......................... 41
(2) Are the Applications Statute-Barred?........................................... 44
(3) Should the opinion evidence of Mr. Graves be struck?................ 48
B. Admissibility and weight of the evidence................................................. 55
(1) Evidence of the applicants............................................................ 55
(2) The ITO evidence.......................................................................... 56
(3) Mr. Penner’s evidence................................................................... 65
(4) The evidence of Ms. Desgagné and Mr. Langhorne..................... 67
(5) The EKOS Survey Evidence......................................................... 71
(6) Dr. Corbin’s evidence.................................................................... 78
(7) Dr. Nevitte’s evidence................................................................... 83
(8) Evidence of the respondent MPs’ campaign managers................. 86
V. Conclusion on the Merits....................................................................................... 86
A. Has “fraud” under Section 524(1)(b) been made out?.............................. 86
B. Did the fraud affect the results of the election in the six subject ridings? 89
C. Did the fraud call into question the integrity of the elections?................. 90
D. Should the Court exercise its discretion to annul the elections?............... 92
VI. Costs...................................................................................................................... 93
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, 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.
[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 of the Canada Elections Act, SC 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 ten 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 been changed. Your new voting location is at… Once again your new poll location is at… If you have any questions please call our hotline at 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 a result, he alleged, offences had been committed contrary to s 491(3)(d) and s 482(b) of the Act.
[10] Media accounts subsequent to the publication of the Mathews ITO reported that similar illicit telephone calls had been reported in other ridings. On March 15, 2012 the Chief Electoral Officer, Marc Mayrand, issued a statement: “Chief Electoral Officer of Canada Addresses 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 had occurred during the 41st General Election. As of the date of Mr. Mayrand’s appearance before the Standing Committee on Procedure and House Affairs two weeks later, on March 29, 2012, close to 40,000 Canadians had contacted Elections Canada to express their concerns in 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 six electoral districts of Elmwood-Transcona, Nipissing-Timiskaming, Saskatoon-Rosetown-Biggar, Vancouver Island North, Winnipeg South Centre and Yukon.
[12] The respondents are the Attorney-General of Canada, the Chief Electoral Officer of Canada, the Returning Officers for the electoral districts, the six elected Conservative Party of Canada Members of Parliament (MPs), three unsuccessful Liberal candidates (Nipissing-Timiskaming, Winnipeg South Centre, and Yukon), the six unsuccessful New Democratic Party candidates, 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 and made oral submissions opposing the applications at the hearing. The New Democratic Party candidates filed written representations and made oral submissions in support of the applicants. The Liberal Party candidates, the Attorney General of Canada, the Returning Officers and Mr. Henderson filed no submissions and took no active part at the hearing. Other candidates in the several ridings did not file notices of appearance. The Chief Electoral Officer provided written representations and oral submissions to assist the Court with respect to the interpretation of the Act.
[14] There were originally seven applications, but the seventh, in Court file T-616-12, Leanne Bielli v Attorney General, was dismissed in October 2012 when it emerged that the applicant, who had not voted due to a misleading call, had mistaken her riding and 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 s 525(3) of the Act, such applications 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, [2012] OJ No 2308 (QL) [“Wrzesnewskyj”] at paragraphs 32-33, this means that they are to be dealt with without all of the customary legal formalities. To proceed in “a summary way” imposes limits on the evidence that may be gathered 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, from bringing a considerable number of interlocutory motions. It is, I think, helpful to provide an overview of the preliminary proceedings to explain 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 frivolous and vexatious, an abuse of process and not brought within the time required under s 527 of the Act. The motions to strike were dismissed 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 the democratic process, Prothonotary Milczynski found that such a situation had not been established on the record before her:
Far from being frivolous or vexatious, or an obvious abuse, the applications raise serious issues about the integrity of the democratic process in Canada and identify practices that if proven, point to a campaign of activities that would seek to deny eligible voters their right to vote and/or manipulate or interfere with that right being exercised freely - all of which if permitted to escape even the prospect of judicial scrutiny, could shake public confidence and trust in the electoral process and in those who in good faith stand for public office.
Bielli v Canada (Attorney General), 2012 FC 916, [2012] FCJ No 971 (QL) at para 11 [Bielli].
[19] Prothonotary Milczynski concluded that the issues would be best raised and argued on a full record. The question of whether the applications were brought within the statutory limitation period could not be resolved without the applicants’ evidence and any possible cross-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 the product of maintenance and champerty by an organization not party to the proceedings, the Council of Canadians (the “Council”). This motion was supported by an affidavit sworn by Peter Henein, a member of the law firm acting on behalf of the respondent MPs. The applicants 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 to impugn the evidence at the hearing of the applications. In exchange, counsel for the respondent MPs agreed not to cross-examine affiants representing 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 $260,409.00, 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 para 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 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 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 s 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 Rule 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 a Royal Commission on Electoral Reform and Party Financing 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 that 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, the Dominion Controverted Elections Act, RSC 1985, c C-39, the Disenfranchising Act RSC 1985, c D-3, originally enacted in 1894, and the Corrupt Practices Inquiries Act RSC 1985, c C-45, adopted in 1876. 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] SCJ No 55 (QL) [Opitz].
[34] As stated by the majority in Opitz at paragraph 1, section 3 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [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:
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.
3. Tout citoyen canadien a le droit de vote et est éligible aux élections législatives fédérales ou provinciales.
[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 of the Act. Preparation for the vote is governed by Part 8. It is the responsibility of the returning officer to establish one polling station for each polling division (s 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 (s 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 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 479-521.1, 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 s 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 s 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 (s 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 s 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 (s 512; s 479(3)). Section 512 reads as follows:
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.
512. (1) L’autorisation écrite du directeur des poursuites pénales doit être préalablement obtenue avant que soient engagées les poursuites pour infraction à la présente loi.
(2) Subsection (1) does not apply to an offence in relation to which an election officer has taken measures under subsection 479(3).
(2) L’autorisation n’est pas requise pour les infractions pour lesquelles un fonctionnaire électoral a pris des mesures dans le cadre du paragraphe 479(3).
(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.
(3) L’autorisation fait foi de son contenu, sous réserve de sa contestation par le directeur des poursuites pénales ou quiconque agit pour son compte ou celui de Sa Majesté.
[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. 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 (s 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 s 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 s 525(3), that such applications shall be dealt with summarily and without delay and the lengthy limitation period for prosecutions provided for in s 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 s 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:
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
524. (1) Tout électeur qui était habile à voter dans une circonscription et tout candidat dans celle-ci peuvent, par requête, contester devant le tribunal compétent l’élection qui y a été tenue pour les motifs suivants :
(a) under section 65 the elected candidate was not eligible to be a candidate; or
a) inéligibilité du candidat élu au titre de l’article 65;
(b) there were irregularities, fraud or corrupt or illegal practices that affected the result of the election.
b) irrégularité, fraude, manoeuvre frauduleuse ou acte illégal ayant influé sur le résultat de l’élection.
(2) An application may not be made on the grounds for which a recount may be requested under subsection 301(2).
(2) La contestation ne peut être fondée sur les motifs prévus au paragraphe 301(2) pour un dépouillement judiciaire.
[53] The remedy the court may provide is in s 531(2):
(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]
(2) Au terme de l’audition, il 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.
[Je souligne]
[54] The Supreme Court determined, at paras 20-22 of Opitz, that 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. 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 s 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 paras 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 paras 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 s 524, these are very serious matters. Where they occur, the electoral process will be corroded (Opitz, para 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 illegal practices, such as wilfully preventing or endeavouring to prevent an elector from voting (ss 281(g) and 491(3)(d)), and inducing a person by pretence of contrivance to vote or refrain from voting or to vote or refrain from voting for a particular candidate in an election (s 482(b)). The Act also creates offences that may apply to the actions of candidates and their official agents under the heading of “illegal and corrupt practices” in s 502, which may also fall within the scope of s 524.
[59] While the commission of these Part 19 offences may constitute electoral fraud or corrupt or illegal practices for the purposes of s 524, the construction of those terms in s 524 is not limited to the scope of those offences. There is no indication in the Act that 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 in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 SCR 559, at para. 26, citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87.”) Protecting the integrity of the democratic process is a central purpose of the Act in order to ensure the constitutional right to vote and the enfranchising purpose of the statute. In the context of s 524, “fraud”, “corrupt practices” or “illegal practices” should therefore be defined in their ordinary and grammatical sense employing the dictionary definitions of the words to serve that purpose.
(3) The meaning of “fraud” in s 524(1)
[61] In the course of argument, counsel drew my attention to statements by an official before the Senate Committee on Legal and Constitutional Affairs when Bill C-2, the proposed new Canada Elections Act, was before Parliament in April 2000. The statement was to the effect that the intent of the Government was to adopt a meaning of “fraud” which corresponded to the meaning in the criminal context: testimony of Mr. Michael Peirce, Counsel, Director, Legal Operations, Legislation and House Planning, Privy Council Office, in 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 not determine the parliamentary intent. Applying the ordinary dictionary definition of the word, fraud is 1) the action or an instance of deceiving someone in order to make money or obtain an advantage illegally, 2) a person or thing that is not what it is claim