Wrzesnewskyj v. Canada (Attorney General) et al., (2012) 296 O.A.C. 82 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein and Moldaver, JJ.
• Court: Supreme Court (Canada)
• Case Date: July 10, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 296 O.A.C. 82 (SCC);2012 SCC 55

Wrzesnewskyj v. Can. (A.G.) (2012), 296 O.A.C. 82 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] O.A.C. TBEd. OC.034

Ted Opitz (appellant) v. Borys Wrzesnewskyj, Attorney General of Canada, Marc Mayrand (Chief Electoral Officer), Allan Sperling (Returning Officer, Etobicoke Centre), Sarah Thompson and Katarina Zoricic (respondents)

Borys Wrzesnewskyj (appellant) v. Ted Opitz, Attorney General of Canada, Marc Mayrand (Chief Electoral Officer) and Allan Sperling (Returning Officer, Etobicoke Centre) (respondents) and Keith Archer (Chief Electoral Officer of British Columbia), O. Brian Fjeldheim (Chief Electoral Officer of Alberta) and Canadian Civil Liberties Association (interveners)

(34845; 2012 SCC 55; 2012 CSC 55)

Indexed As: Wrzesnewskyj v. Canada (Attorney General) et al.

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein and Moldaver, JJ.

October 25, 2012.

Summary:

In the 2011 federal election, in the electoral district (riding) of Etobicoke Centre, 52,794 votes were cast. After a judicial recount, Opitz was the successful candidate with a plurality of 26 votes. Wrzesnewskyj, the runner-up, applied under s. 524(1)(b) of the Canada Elections Act to have the election annulled, on the basis that there were "irregularities ... that affected the result of the election". There were no allegations of fraud or wrongdoing. The submissions were restricted to administrative mistakes.

The Ontario Superior Court (applications judge), in a decision reported [2012] O.T.C. Uned. 2873; 110 O.R.(3d) 350; 2012 ONSC 2873, concluded that 79 votes amounted to irregularities. Because the number of votes set aside, 79, exceeded the plurality of 26, the judge found that irregularities affected the result of the election and declared the election "null and void". Opitz appealed as of right to the Supreme Court of Canada. Wrzesnewskyj cross-appealed (s. 532(1) of the Act).

The Supreme Court of Canada, McLachlin, C.J.C., LeBel and Fish, JJ., dissenting, allowed Opitz' appeal and dismissed Wrzesnewskyj' cross-appeal. The court held that the applications judge wrongly set aside at least 59 votes. Therefore, the "magic number" test was not met, as the remaining number of votes invalidated (not more than 20) was not equal to or did not exceed the plurality of 26 votes. In the result, the court dismissed Wrzesnewskyj' application under s. 524 of the Act.

Civil Rights - Topic 121

Voting and other democratic rights - Right to vote - General - Section 3 of the Charter guaranteed every citizen of Canada the right to vote in federal and provincial elections - The Supreme Court of Canada quoted Figueroa v. Canada (Attorney General) (SCC 2003) as to the fundamental purpose of s. 3 - See paragraph 28.

Civil Rights - Topic 121

Voting and other democratic rights - Right to vote - General - The Supreme Court of Canada stated that "The constitutional guarantee of the right to vote in s. 3 of the Charter is a fundamental provision, not subject to constitutional override under s. 33 of the Charter. Section 3 provides that citizens have the right to vote 'in an election of members of the House of Commons or of a legislative assembly'. The right to vote in the election of 'members of the House of Commons' reflects Canada's constitutional character as a parliamentary form of government. Citizens have the right to vote in a specific electoral district, choosing among various candidates who wish to be the Member of Parliament for that district ..." - See paragraph 29.

Civil Rights - Topic 121

Voting and other democratic rights - Right to vote - General - [See seventh Elections - Topic 7856 ].

Elections - Topic 16

General - Purpose of elections legislation - The Supreme Court of Canada stated that "it is well accepted in the contested election jurisprudence that the purpose of the [Canada Elections] Act is to enfranchise all persons entitled to vote and to allow them to express their democratic preferences ... The words of an Act are to be read in their 'entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament' ... The constitutional right to vote and the enfranchising purpose of the Act are of central importance in construing the words 'irregularities ... that affected the result' [of the election]" in s. 524(1)(b) of the Act - See paragraphs 35 and 36.

Elections - Topic 16

General - Purpose of elections legislation - The Supreme Court of Canada stated that "While enfranchisement is one of the cornerstones of the [Canada Elections] Act, it is not free-standing. Protecting the integrity of the democratic process is also a central purpose of the Act. The same procedures that enable entitled voters to cast their ballots also serve the purpose of preventing those not entitled from casting ballots. These safeguards address the potential for fraud, corruption and illegal practices, and the public's perception of the integrity of the electoral process ... Fair and consistent observance of the statutory safeguards serves to enhance the public's faith and confidence in fair elections and in the government itself, both of which are essential to an effective democracy ..." - See paragraph 38.

Elections - Topic 2041

Voters - Qualifications - General - Section 6 of the Canada Elections Act provided that "Subject to this Act, every person who is qualified as an elector is entitled to have his or her name included in the list of electors for the polling division in which he or she is ordinarily resident and to vote at the polling station for that polling division" - The Supreme Court of Canada interpreted s. 6 - The court stated that "On a plain reading of s. 6, qualification and residence in a polling division give an individual the entitlement or right to be included on the list of electors for that polling division, and to vote. Section 6 does not provide that inclusion on the list of electors is a prerequisite to the right to vote. Such a reading reverses the effect of the provision. Entitlement to be on the list and entitlement to vote are consequences of being a citizen, being of age, and being resident in the polling division. In this regard, it should be noted that s. 6 is a complete definition of 'entitlement' in the Act. The definition is not altered by any other provision. 'Entitlement' consists only of the fundamental requirements of age, citizenship, and residence" - See paragraphs 30 to 34.

Elections - Topic 2041

Voters - Qualifications - General - [See eighth Elections - Topic 7856 ].

Elections - Topic 2042

Voters - Qualifications - Interpretation of - The Supreme Court of Canada stated that "It is well recognized in the jurisprudence that where electoral legislation is found to be ambiguous, it should be interpreted in a way that is enfranchising" - See paragraph 37.

Elections - Topic 2081

Voters - Voters lists - General - [See first Elections - Topic 2041 ].

Elections - Topic 2088

Voters - Voters lists - Same-day registrants - At a federal election poll (Etobicoke Centre, poll 31), 86 people were handwritten in the poll book as having voted by Registration Certificate (i.e., they were added to the electors' list on election day by establishing their age and citizenship) - However, after the election 16 registration certificates could not be found - The losing candidate (applicant) alleged irregularities - The applications judge ruled that 15 of the 16 votes should be discarded - The winning candidate appealed - The Supreme Court of Canada held that the applications judge misstated the onus of proof, thereby reversing or shifting the onus to the successful candidate (respondent) - He should have asked whether the losing candidate (applicant) had satisfied him on a balance of probabilities that the 16 people had not certified that they were qualified to vote - See paragraphs 83 to 88.

Elections - Topic 2088

Voters - Voters lists - Same-day registrants - At a federal election poll (Etobicoke Centre, poll 31), 86 people were handwritten in the poll book as having voted by Registration Certificate (i.e., they were added to the electors' list on election day by establishing their age and citizenship) - However, after the election 16 registration certificates could not be found - The losing candidate alleged irregularities (Canada Elections Act, s. 524(1)(b)) - The Supreme Court of Canada considering the whole of the evidence, was unable to conclude, on balance, that the registration certificates were not completed - Rather, the evidence favoured the explanation that the certificates were lost - Hence, the losing candidate failed to establish an "irregularity" concerning any of the 16 votes - See paragraphs 89 to 97.

Elections - Topic 2088

Voters - Voters lists - Same-day registrants - At a federal election poll (Etobicoke Centre, poll 426), 33 names were listed in the poll book with no addresses as having voted by Registration Certificate (i.e., people who were added to the electors' list on election day by establishing their age and citizenship) - However, after the election none of the certificates could be found - The losing candidate (applicant) alleged irregularities - The applications judge disallowed 26 of the 33 votes - The winning candidate appealed - The Supreme Court of Canada held that the applications judge erred by reversing the onus of proof in making his decision - Applying the correct onus, the court held that the losing candidate failed to meet the burden of establishing that there was an "irregularity" with respect to the 26 votes - The evidence was consistent with the explanation that the certificates were completed, but lost after the election - The court restored the 26 votes - See paragraphs 98 to 105.

Elections - Topic 2088

Voters - Voters lists - Same-day registrants - At a federal election poll (Etobicoke Centre, poll 174), eight persons on the official electors' list did not have identification and required vouching to establish their identity - The vouchees' names were not listed in the poll book contrary to s. 162(f) of the Canada Elections Act, although the relationship between the voucher and the vouchee was indicated - The losing candidate (applicant) alleged irregularities - The applications judge disallowed the eight votes - The winning candidate appealed - The Supreme Court of Canada distinguished between proper vouching and proper record-keeping - Improper vouching could amount to an irregularity, if it meant that identity and residence were not established which went to entitlement - By contrast, incorrect record-keeping of vouching, on its own, could not amount to an irregularity - Here, it could be inferred that vouching was properly conducted - The court restored the eight votes - See paragraphs 106 to 109.

Elections - Topic 2088

Voters - Voters lists - Same-day registrants - At a federal election poll (Etobicoke Centre, poll 89), 10 people were added to the official electors' list on election day by Registration Certificate, therein certifying their age and citizenship - The election official signed the certificates in the box where the voter was supposed to sign - There were no voter signatures contrary to s. 161(4) of the Canada Elections Act - The losing candidate alleged irregularities (s. 524(1)(b)) - The applications judge disallowed the 10 votes - The winning candidate appealed - The Supreme Court of Canada held that the losing candidate had established an "irregularity" going to entitlement to vote - However, the applications judge erred by failing to consider other evidence from which it could reasonably be inferred that the 10 voters were entitled to vote - The court restored the 10 votes - See paragraphs 110 to 117.

Elections - Topic 3063

Voting and ballots - Place for voting - Voting at wrong poll - In a federal election, one vote in poll 16 and 66 votes in poll 31 were cast in the proper electoral district (Etobicoke Centre), but in the incorrect polling divisions - The electors voted by registration certificate and listed an address within the electoral district, but outside the polling divisions for polls 16 and 31 - The losing candidate challenged the election - The applications judge ruled that the votes could stand - The losing candidate appealed - The Supreme Court of Canada stated that voting in the wrong polling division had no effect on the result of the election - The ballot boxes from each polling division were aggregated in the overall tally for the electoral district - There was no reason to disturb the application judge's finding that these votes should stand - See paragraphs 118 and 119.

Elections - Topic 7856

Controverted elections - General - Interpretation of statute - Section 524(1) of the Canada Elections Act provided that an election could be contested on the grounds that "(a) ... the elected candidate was not eligible to be a candidate; or (b) there were irregularities, fraud or corrupt or illegal practices that affected the result of the election" - Pursuant to s. 531(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" - The Supreme Court of Canada stated 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. Conversely, a court may not annul an election unless the grounds in s. 524(1)(b) are established" - The court noted that this interpretation was confirmed by the French version of the Act - See paragraphs 19 to 23.

Elections - Topic 7856

Controverted elections - General - Interpretation of statute - Section 524(1) of the Canada Elections Act provided that an election could be contested on the ground that "... (b) there were irregularities, fraud or corrupt or illegal practices that affected the result of the election" - The Supreme Court of Canada discussed the meaning of the phrase "irregularities ... that affected the result of the election" - The court stated that "Having regard to the centrality of the constitutional right to vote, the enfranchising purpose of the Act, the language of s. 524, and the numerous democratic values engaged, we conclude that an 'irregularit[y] ... that affected the result' of an election is a breach of statutory procedure that has resulted in an individual voting who was not entitled to vote. Such breaches are serious because they are capable of undermining the integrity of the electoral process" - See paragraphs 24 to 50.

Elections - Topic 7856

Controverted elections - General - Interpretation of statute - Section 524(1) of the Canada Elections Act provided that an election could be contested on the ground that "... (b) there were irregularities, fraud or corrupt or illegal practices that affected the result of the election" - The Supreme Court of Canada discussed the meaning of the phrase "irregularities ... that affected the result of the election" - The court concluded that "... 'irregularities' are serious administrative errors that are capable of undermining the electoral process - the type of mistakes that are tied to and have a direct bearing on a person's right to vote. 'Affected the result' asks whether someone not entitled to vote, voted. Manifestly, if a vote is found to be invalid, it must be discounted, thereby altering the vote count, and in that sense, affecting the election's result. 'Affected the result' could also include a situation where a person entitled to vote was improperly prevented from doing so, due to an irregularity on the part of an election official ..." - See paragraphs 24 and 25.

Elections - Topic 7856

Controverted elections - General - Interpretation of statute - Section 524(1) of the Canada Elections Act provided that an elector and any candidate could apply to the court to contest an election on the ground that "... (b) there were irregularities, fraud or corrupt or illegal practices that affected the result of the election" - The Supreme Court of Canada, in interpreting the phrase "irregularities ... that affected the result of the election" in s. 524(1)(b) took into account a number of aides to statutory interpretation, including "(1) the constitutional right to vote and the objectives of the Act; (2) the text and context of s. 524; and (3) the competing democratic values engaged" - See paragraphs 26 to 50.

Elections - Topic 7856

Controverted elections - General - Interpretation of statute - Section 524(1) of the Canada Elections Act provided that an election could be contested on the ground that "... (b) there were irregularities, fraud or corrupt or illegal practices that affected the result of the election" - The Supreme Court of Canada stated that by using the word "irregularities", Parliament intended to restrict the scope of administrative errors that could give rise to overturning an election - In determining how the meaning of "irregularities" was restricted, the court held that the "associated words" or "noscitur a sociis" rule of interpretation was of assistance - See paragraphs 39 to 41.

Elections - Topic 7856

Controverted elections - General - Interpretation of statute - The Canada Elections Act, s. 524(1) provided that an election could be challenged on the ground that "... (b) there were irregularities, fraud or corrupt or illegal practices that affected the result of the election" - The Supreme Court of Canada stated that by using the word "irregularities", Parliament intended to restrict the scope of administrative errors that could give rise to overturning an election - The court stated that the word "irregularities" was part of the phrase "irregularities, fraud or corrupt or illegal practices", words that spoke to serious misconduct - "To interpret 'irregularity' as meaning any administrative error would mean reading it without regard to the related words. The common thread between the words 'irregularities, fraud or corrupt or illegal practices' is the seriousness of the conduct and its impact on the integrity of the electoral process. Fraud, corruption and illegal practices are serious. Where they occur, the electoral process will be corroded. In associating the word 'irregularity' with those words, Parliament must have contemplated mistakes and administrative errors that are serious and capable of undermining the integrity of the electoral process" - See paragraphs 42 and 43.

Elections - Topic 7856

Controverted elections - General - Interpretation of statute - Section 524(1) of the Canada Elections Act provided that an election could be set aside on the ground that "... (b) there were irregularities, fraud or corrupt or illegal practices that affected the result of the election" - The Supreme Court of Canada, in interpreting the phrase "irregularities ... that affected the result of the election" noted there were competing democratic values engaged - "Central to the issue before us is how willing a court should be to reject a vote because of statutory non-compliance. Although there are safeguards in place to prevent abuse, the Act accepts some uncertainty in the conduct of elections, since in theory, more onerous and accurate methods of identification and record-keeping could be adopted. The balance struck by the Act reflects the fact that our electoral system must balance several interrelated and sometimes conflicting values. Those values include certainty, accuracy, fairness, accessibility, voter anonymity, promptness, finality, legitimacy, efficiency and cost. But the central value is the Charter-protected right to vote" - See paragraph 44.

Elections - Topic 7856

Controverted elections - General - Interpretation of statute - Section 524(1) of the Canada Elections Act provided that an election could be challenged on the ground that "... (b) there were irregularities ... that affected the result of the election" - The Supreme Court of Canada noted that in the past, in determining whether there was an irregularity that affected the result of an election, courts had used either a strict procedural approach where all votes cast pursuant to an irregular procedure were held to be invalid or a substantive approach where a failure to follow a procedural safeguard was not determinative of whether the election result was affected - The Supreme Court rejected the strict procedural approach in favour of the substantive approach - Using a substantive approach, a judge should look at the whole of the evidence, with a view to determining whether a person who was not entitled to vote, voted - See paragraphs 54 to 57.

Elections - Topic 7856

Controverted elections - General - Interpretation of statute - Section 524(1) of the Canada Elections Act provided that an election could be challenged on the ground that "... (b) there were irregularities ... that affected the result of the election" - The Supreme Court of Canada adopted a two step substantive approach to determine whether there were irregularities that affected an election result - First an applicant had to prove that there was an "irregularity" (i.e., a breach of a statutory provision designated to establish a persons entitlement to vote) - Second, an applicant had to demonstrate that the irregularity "affected the result" of the election (i.e., someone not entitled to vote, voted) - Where that was established, the vote was invalid, and had to be rejected - The court stated that rejecting a vote affected the result of the election in the sense that it changed the vote count - The court thereafter elaborated on how this approach should be used by the court - See paragraphs 57 to 75.

Elections - Topic 7856

Controverted elections - General - Interpretation of statute - [See Elections - Topic 2042 ].

Elections - Topic 7872

Controverted elections - Invalid elections - Procedure for determining - The Supreme Court of Canada noted that to date the only approach taken by Canadian courts in assessing contested election applications was the "magic number" test whereby an election had to be annulled if the rejected votes were equal to or outnumbered the winner's plurality - The court noted that although simplistic, there were some flaws in this test - However, in the case at bar, where no alternate test had been established for purposes of the controverted elections application before the court, the court utilized the magic number test - The court stated therefore that "the election should be annulled when the number of rejected votes is equal to or greater than the successful candidate's margin of victory. However, we do not rule out the possibility that another, more realistic method for assessing contested election applications might be adopted by a court in a future case" - See paragraphs 71 to 73 and 75.

Elections - Topic 7872

Controverted elections - Invalid elections - Procedure for determining - [See eighth and ninth Elections - Topic 7856 ].

Elections - Topic 7885

Controverted elections - Invalid elections - Remedies - [See first Elections - Topic 7856 ].

Elections - Topic 7902

Controverted elections - Grounds for invalidity - Irregularities affecting the result of the election - [See all Elections - Topic 2088 and first to ninth Elections - Topic 7856 ].

Elections - Topic 7909

Controverted elections - Grounds for invalidity - Electors not swearing or subscribing required oath or affirmation - A losing candidate in a federal election, who challenged the validity of the election in his riding, argued that an applications judge should have disqualified 12 votes where poll books did not record which type of oath was taken by voters contrary to s. 162(f) of the Canada Elections Act - On the page in each poll book for electors who swore oaths, alongside each name was the notation "no address ID" or no notation at all - The losing candidate argued that "no address ID" meant that each voter did not have identification and thus needed to be vouched for - The Supreme Court of Canada found no basis for interfering with the applications judge's ruling - See paragraphs 120 and 121.

Elections - Topic 7910

Controverted elections - Grounds for invalidity - Voters lists problems (incl. computer problems) - [See all Elections - Topic 2088 ].

Elections - Topic 8041

Controverted elections - Canada - General - [See both Elections - Topic 16 , first Elections - Topic 7872 and first Elections - Topic 8144 ].

Elections - Topic 8043

Controverted elections - Canada - Powers of court on application to contest election - [See first Elections - Topic 7856 ].

Elections - Topic 8045

Controverted elections - Canada - Grounds - [See all Elections - Topic 2088 and first to ninth Elections - Topic 7856 ].

Elections - Topic 8143

Controverted elections - Evidence and proof - Standard of proof - [See first Elections - Topic 8144 ].

Elections - Topic 8144

Controverted elections - Evidence and proof - Burden of proof - The Supreme Court of Canada stated that on an application to annul an election, pursuant to s. 531(2) of the Canada Elections Act, the applicant had the legal burden of proof and the applicable standard of proof was the civil standard (i.e., proof on a balance of probabilities) - See paragraphs 52 and 53.

Elections - Topic 8144

Controverted elections - Evidence and proof - Burden of proof - [See first Elections - Topic 2088 ].

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See Statutes - Topic 1411 ].

Statutes - Topic 1411

Interpretation - Construction where meaning is not plain - General principles - Avoidance of conflict with Charter - Section 524(1) of the Canada Elections Act provided that an elector and any candidate could apply to the court to contest an election on the ground that "... (b) there were irregularities, fraud or corrupt or illegal practices that affected the result of the election" - The Supreme Court of Canada, in interpreting the phrase "irregularities ... that affected the result of the election" in s. 524(1)(b) considered the constitutional right to vote and the objectives of the Act - See paragraphs 27 to 38.

Statutes - Topic 1603

Interpretation - Extrinsic aids - General - Constitutional context - [See Statutes - Topic 1411 ].

Statutes - Topic 1806

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of one version by reference to other - The Supreme Court of Canada confirmed its interpretation of the English version of s. 531(2) of the Canada Elections Act by reference to the French version of that section - See paragraph 21.

Statutes - Topic 2407

Interpretation - Interpretation of words and phrases - By context - Section 524(1) of the Canada Elections Act provided that an elector and any candidate could apply to the court to contest an election on the ground that "... (b) there were irregularities, fraud or corrupt or illegal practices that affected the result of the election" - The Supreme Court of Canada, in interpreting the phrase "irregularities ... that affected the result of the election" in s. 524(1)(b) considered the text and context of s. 524 - See paragraphs 39 to 43.

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - [See first Elections - Topic 16 ].

Statutes - Topic 2612

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Noscitur a sociis (from associated words) - [See fifth Elections - Topic 7856 ].

Words and Phrases

Irregularities ... that affected the result of the election - The Supreme Court of Canada discussed the meaning of this phrase as it appeared in s. 524(1)(b) of the Canada Elections Act, S.C. 2000, c. 9 - See paragraphs 24 to 51.

Words and Phrases

Respectively - The Supreme Court of Canada discussed the meaning of the word "respectively" as used in s. 531(2) of the Canada Elections Act, S.C. 2000, c. 9 - See paragraph 20.

Cases Noticed:

Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912; 306 N.R. 70; 176 O.A.C. 89; 2003 SCC 37, refd to. [para. 28].

Henry et al. v. Canada (Attorney General) et al., [2010] B.C.T.C. Uned. 610; 7 B.C.L.R.(5th) 70; 2010 BCSC 610, refd to. [paras. 29, 145].

Sauvé v. Canada (Attorney General) (1992), 55 O.A.C. 219; 7 O.R.(3d) 481; 89 D.L.R.(4th) 644 (C.A.), affd. [1993] 2 S.C.R. 438; 153 N.R. 242; 64 O.A.C. 124, refd to. [para. 35].

Belczowski v. Canada, [1992] 2 F.C. 440; 132 N.R. 183; 90 D.L.R.(4th) 330 (F.C.A.), refd to. [para. 35].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [paras. 36, 163].

Haig et al. v. Canada; Haig et al. v. Kingsley, [1993] 2 S.C.R. 995; 156 N.R. 81, refd to. [paras. 37, 145].

Longley et al. v. Canada (Attorney General) (2007), 231 O.A.C. 244; 2007 ONCA 852, refd to. [para. 38].

2747-3174 Québec Inc. v. Régie des permis d'alcool du Québec et autres, [1996] 3 S.C.R. 919; 205 N.R. 1, refd to. [para. 40].

Cusimano v. Toronto (City) et al. (2011), 287 O.A.C. 355, 2011 ONSC 7271 (Div. Ct.), refd to. [para. 43].

Camsell v. Rabesca, [1987] N.W.T.R. 186 (S.C.), refd to. [para. 46].

Abrahamson v. Baker and Smishek (1964), 48 D.L.R.(2d) 725 (Sask. C.A.), refd to. [para. 52].

Beamish v. Miltenberger, [1997] N.W.T.R. 160 (S.C.), refd to. [paras. 52, 148].

O'Brien v. Hamel (1990), 73 O.R.(2d) 87 (Div. Ct.), refd to. [paras. 54, 149].

Nielsen v. Simmons (1957), 14 D.L.R.(2d) 446 (Yuk. Terr. Ct.), refd to. [para. 54].

Hogan v. Careen and Hickey (1993), 116 Nfld. & P.E.I.R. 310; 363 A.P.R. 310 (Nfld. T.D.), refd to. [para. 54].

Blanchard v. Cole, [1950] 4 D.L.R. 316 (N.S.S.C.), refd to. [paras. 54, 149].

Flookes and Long v. Shrake (1989), 100 A.R. 98 (Q.B.), refd to. [para. 55].

R. v. Couture (D.R.), [2007] 2 S.C.R. 517; 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 2007 SCC 28, refd to. [para. 87].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 154 D.L.R.(4th) 193, refd to. [para. 144].

R. v. Knott (D.W.) et al. (2012), 433 N.R. 38; 324 B.C.A.C. 1; 551 W.A.C. 1; 2012 SCC 42, refd to. [para. 144].

Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827; 320 N.R. 49; 348 A.R. 201; 321 W.A.C. 201; 2004 SCC 33, refd to. [para. 145].

Canada (Attorney General) v. Mowat (2009), 395 N.R. 52; 2009 FCA 309, affd. [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 145].

Wright, Danson and Sanborn v. Koziak and Albrecht, [1981] 1 W.W.R. 449; 24 A.R. 255; 114 D.L.R.(3d) 549 (C.A.), refd to. [para. 148].

Morgan v. Simpson, [1974] 3 All E.R. 722 (C.A.), refd to. [para. 148].

McMechan v. Dow (1968), 67 D.L.R.(2d) 56 (Man. Q.B.), refd to. [para. 154].

Binet v. Pharmascience et al., [2006] 2 S.C.R. 513; 353 N.R. 343; 2006 SCC 48, refd to. [para. 163].

Dewdney Election Case, [1925] 3 D.L.R. 770 (B.C.C.A.), refd to. [para. 169].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 170].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 170].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 211].

Palmer v. The Queen - see R. v. Palmer.

Statutes Noticed:

Canada Elections Act, S.C. 2000, c. 9, sect. 6 [paras. 30, 153]; sect. 148.1 [para. 160]; sect. 149 [para. 156]; sect. 524(1)(a), sect. 524(1)(b) [para. 19]; sect. 525(3) [para. 47]; sect. 531(2) [para. 20].

Canadian Charter of Rights and Freedoms, 1982, sect. 3 [para. 27]; sect. 33 [para. 29].

Authors and Works Noticed:

Boyer, J. Patrick, Election Law in Canada: The Law and Procedure of Federal, Provincial and Territorial Elections (1987), vol. 1, p. 101 [para. 30].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [paras. 36, 144].

Huefner, Steven F., Remedying Election Wrongs (2007), 44 Harv. J. on Legis. 265, pp. 295, 296 [para. 48].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 227 [para. 41].

Counsel:

W. Thomas Barlow, Kent E. Thomson, Matthew I. Milne-Smith and Nicholas Shkordoff, for the appellant/respondent, Ted Opitz;

Gavin J. Tighe, Stephen A. Thiele and Guy Régimbald, for the respondent/appellant, Borys Wrzesnewskyj;

David Di Paolo, Alessandra Nosko and Trevor Knight, for the respondents, Marc Mayrand (Chief Electoral Officer) and Allan Sperling (Returning Officer, Etobicoke Centre);

Written submissions only by the respondent, Sarah Thompson;

Harold Turnham, for the intervener, Keith Archer (Chief Electoral Officer of British Columbia);

William W. Shores, Q.C., and Fiona Vance, for the intervener, O. Brian Fjeldheim (Chief Electoral Officer of Alberta);

Allison A. Thornton and Shashu Clacken Reyes, for the intervener, the Canadian Civil Liberties Association;

No one appeared for the respondent, the Attorney General of Canada;

No one appeared for the respondent, Katarina Zoricic.

Solicitors of Record:

Fasken Martineau DuMoulin, Toronto, Ontario; Davies Ward Phillips & Vineberg, Toronto, Ontario, for the appellant/respondent, Ted Opitz;

Gardiner, Roberts, Toronto, Ontario; Gowlings, Ottawa, Ontario, for the respondent/appellant, Borys Wrzesnewskyj;

Borden Ladner Gervais, Toronto, Ontario; Elections Canada, Ottawa, Ontario, for the respondents, Marc Mayrand (Chief Electoral Officer) and Allan Sperling (Returning Officer, Etobicoke Centre);

Sarah Thompson, on her own behalf;

Waddell, Raponi, Victoria, British Columbia; Turnham Woodland, Victoria, British Columbia, for the intervener, Keith Archer (Chief Electoral Officer of British Columbia);

Shores Jardine, Edmonton, Alberta, for the intervener, O. Brian Fjeldheim (Chief Electoral Officer of Alberta);

Koch Thornton, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association.

This appeal was heard on July 10, 2012, before McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein and Moldaver, JJ., of the Supreme Court of Canada. The decision of the court was delivered on October 25, 2012, in both official languages, including the following opinions:

Rothstein and Moldaver, JJ., joint reasons (Deschamps and Abella, JJ., concurring) - see paragraphs 1 to 135;

McLachlin, C.J.C., dissenting (LeBel and Fish, JJ., concurring) - see paragraphs 136 to 217.