Page: 23
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.
(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]
[My emphasis]
[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
2013 FC 525 (CanLII)
[53]
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