Opitz v Borys Etobicoke Centre Election

Supreme Court of Canada

Citation: Opitz v. Wrzesnewskyj, 2012 SCC 55

[Headnotes (summary) of Decision]

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 (the “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.

[Majority] 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.

[Minority] 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.

Full Supreme Court Canada decision: HERE

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