Cancellation of the election in Terrebonne

A ZIP code error on a special ballot is at the heart of this case. The mail-in vote of a voter who said she supported the Bloc Québécois never made it to the polling station. Canada Post returned his ballot a few days after the election. The election should have been rerun if it had been counted since M^me Sinclair-Desgagné would have been tied with her liberal rival Tatiana Auguste.

“Why try to maintain a false result? asked M.^e Julius Gray to the nine judges. […] There was a draw, the legislator foresaw the consequence, there must be a by-election. »

The Elections Canada employee realized his error three weeks before voting day, but he did not see fit to notify the returning officer of the constituency or the dozens of other voters affected in order to remedy it.

Despite everything, Judge Éric Dufour of the Superior Court concluded that it was a “human error”, committed “inadvertently and without any dishonest or malicious intention” and that in this sense, it did not constitute an irregularity within the meaning of the Election Act.

“If there had been an overwhelming majority, we would not be here,” observed M.^e Grey. He argued that it was not the intention, but rather the consequence of this error that should take precedence. It was therefore serious enough, according to him, to be considered an irregularity given that it had cost his client the victory.

“No serious misconduct”

“First, there is no irregularity since there was no serious misconduct,” argued Marc-Étienne Vien, Ms.’s lawyer.^me August. “Voter Emmanuelle Bossé was not prevented from voting. »

He referred to section 240 of the Election Act under which it is up to the voter “to ensure that their special ballot reaches the office of the returning officer, before the closing of the polls, on polling day”.

According to him, she could have asked Elections Canada if her vote had reached its destination with the reference number that had been provided to her with her special ballot kit and could have gone to vote in person if she had noticed that it had not arrived.

“Is the role of the judiciary to protect the reputation of public officials or the rights of citizens? », asked Judge Rowe.

M^e Vien argued that several other errors occurred during the last federal election, such as sending 16.8 million voter cards late.

“If we adopt the position according to which any error, even banal, even [de frappe]”, even of an administrative nature such as the 16.8 million errors found here qualifies as an irregularity if it influences the result of the election, we lower the margin of contestation and we open the door to an avalanche of legal proceedings and requests for contestation”, explained M^e Single

“We don’t have to fear an epidemic of cancellations,” retorted M^e Grey, arguing that it is rather rare for an error to have an impact on the result of the vote as was the case in Terrebonne.

Exceptional case

It is also exceptional that the highest court in the country has to rule on the result of an election. The last such case dates back to the 2011 general election and is known as the Opitz affair. This case was cited extensively during oral arguments Friday.

At the time, Conservative candidate Ted Opitz won by 26 votes in Etobicoke Centre, Ontario, against his Liberal opponent Borys Wrzesnewskyj. The Supreme Court upheld the conservative’s victory, but it was not a unanimous judgment. She remained divided on the issue.

Four judges concluded that even if there had been an irregularity, the disappointed candidate had failed to demonstrate that it had had an impact on the electoral result. The other three, including then-Chief Justice Beverley McLachlin, believed instead that the election should be annulled in this riding because “people had voted without having the right to do so under the law”.