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Page: 34 one of the four above circumstances in a subject riding, the Court acquires the discretionary power to annul the results in that district under 531(2). The third step is for the Court to consider (envisaged by Opitz at para 73) and decide whether to exercise its discretionary power. (5) [84] When Must an Application to Annul be Made? The time limit for making an application is set out in s 527; 527. An application based on a ground set out in paragraph 524(1)(b) must be filed within 30 days after the later of (a) the day on which the result of the contested election is published in the Canada Gazette, and (b) the day on which the applicant first knew or should have known of the occurrence of the alleged irregularity, fraud, corrupt practice or illegal practice. 527. La requête en contestation fondée sur l’alinéa 524(1)b) doit être présentée dans les trente jours suivant la date de la publication dans la Gazette du Canada du résultat de l’élection contestée ou, si elle est postérieure, la date à laquelle le requérant a appris, ou aurait dû savoir, que les irrégularité, fraude, manoeuvre frauduleuse ou acte illégal allégués ont été commis. [Je souligne] [Emphasis added] [85] Pursuant to s 526 (1) of the Act, applications must be accompanied by security for costs in the amount of $1,000, and must be served on the Attorney General of Canada, the Chief Electoral Officer, the returning officer of the electoral district in question and all the candidates in that electoral district. The Act is silent as to whether service must be effected prior to filing 2013 FC 525 (CanLII) either the “magic number” test (explained in Opitz at paras 71-72) or another appropriate test

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McEwing v. Attorney General

Judgment

Question Presented: Whether the phone calls had any impact on the final election results and if those results were sufficient to annul the election results.

Alleged Acts: Public attention came to the phone calls made during the 2011 election when Elections Canada investigator started to address the phone calls in the Edmonton court. The plaintiffs from six electoral districts brought the case to annul the 2011 Election results on account of voter suppression methods including telephoning voters to inform that their polling locations changed the day before the election. Election Canada received over 700 complaints detailing these calls. Evidence presented alleged that persons who had access to voter information arranged the calls, not the political candidates themselves. The applicants seek to set aside the election because the voting intended to prevent citizens from voting.

Summary: The court determined that it must assess whether or not there was fraud and then whether or not that fraud impacted the elections. First, the court found that there was sufficient evidence of fraud because the voters were contacted by individuals other than Election Canada on and before election day stating that their polling station closed. The impact of the voting had a higher evidentiary burden because the plaintiffs themselves were able to vote. Thus, the impacted voters cannot be effectively counted unless they came forward.

Conclusion: The court determined that although there was fraud, there was not sufficient reliable evidence that the fraud impacted the election results. Thus, the court may not annul the election results.

Legal Issue(s)

Disputing Results
Electoral Integrity

Region: Americas

Country: Canada

Language of Decision

English

Court: Supreme Court

Election Type: General

Date of decision: May 23, 2013

Geolocation

Latitude: 45.42663839

Longitude: -75.81085498

: Geolocation

Primary Documents

McEwing v. Attorney General.pdf
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Election Judgments - IFES

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McEwing v. Attorney General

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