Ontario Civil


Vouching critical part of identification and proper vouching mandatory

Applicant challenged Canadian General Election results in District of Etobicoke where election decided in respondent’s favour by plurality of 26 votes. Application, brought pursuant to s. 524 of Canada Elections Act, claimed irregularities in registration and identification of electors. Act provides means by which qualified elector can be added to voters list on election day. Applicant argued elector and polling officials must comply with directives found in Act and, if requirements not met, ballot should not be cast. Respondent argued statutory provisions do not provide strict preconditions but rather establish procedural safeguards. Application to set aside election results granted. Presumption of regularity in respect of elections rebuttable. Onus on person challenging results. Appropriate standard of proof is balance of probabilities. Act, primary concern of which is enfranchisement of citizens, must be interpreted liberally. Restrictions on basic democratic right to vote should be narrowly interpreted and strictly limited. Correct approach is to conflate two elements Was there an irregularity that affected the result of the election? Parties agreed if number of irregular votes exceeds plurality of votes cast, election cannot stand. Applicant relied on spectrum of irregularities he claimed could undermine public confidence in electoral process despite fact they did not, by themselves, affect election result. While overall confidence in process concern for those responsible for running elections, Act does not allow elections to be set aside simply by accumulation of errors. Irregularities not yet reviewed included discrepancies between votes cast and votes counted; elector voting in poll other than one he ordinarily resides; failure of registration and failure of vouching. Although errors on face of some poll documents, apparent discrepancies not demonstrating irregularity which could have affected election results. Absent evidence of double voting, fact that some electors voted in wrong polling division not affecting result since they voted in correct district. Some poll books indicated some people voted by registration certificate. Where registration certificates could not be located and electors did not appear on official list, could not be assumed electors qualified to vote. Vouching critical part of identification and proper vouching mandatory. Vouching not required where oath taken only for purposes of establishing address but required where oath necessary to establish identification. Vouchers cannot vouch for more than one elector and must reside in same polling division. Poll book must indicate familial relationship of person listed to person vouched for. Number of irregularities affecting election results exceeded plurality of 26 and declared null and void.

Wrzesnewskyj v. Canada (Attorney General)

(May 18, 2012, Ont. S.C.J., Lederer J., File No. CV-11-429669) 215 A.C.W.S. (3d) 118 (41 pp.).

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