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contested election applications might be adopted by a court in a
future case.
The majority acknowledged, at para 73, “…that another, more realistic method for
assessing contested election applications might be adopted by a court in a future case.” The
Supreme Court thus left open the question of whether irregularities could be such as to call into
question the integrity of the electoral process. That conclusion may be reached more easily, I
expect, where the ground cited for annulment is not irregularities at the ballot box but electoral
fraud, corruption or illegality.
[77]
The Chief Electoral Officer submitted that the Court might consider what it termed a
“reverse magic number test” - where the number of individuals who were prevented from voting
as a result of the fraud exceeds the margin of victory of the successful candidate - to determine
whether the results of the vote was affected in each riding. The “reverse magic number test” has
the same inherent bias described by the Supreme Court at para 74 of Opitz; it assumes that the
individuals who did not vote would all have voted identically, which in the reverse test would
mean not voting for the successful candidate. In this context it bears the added complication that
the suppressed votes may have been cast for several unsuccessful candidates. There is no
assurance that the second-place finisher would have been successful.
[78]
The applicants contend that the Court may annul the election either where the number of
impugned votes is sufficient to cast doubt upon the true winner or where the fraudulent activities
are such as to call into question the integrity of the electoral process. They argue that the election
2013 FC 525 (CanLII)
[76]
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