Despite comprehensive legislative and administrative safeguards, Canada, like most mature democracies with lengthy histories of free, open elections, on occasion must deal with contested elections and allegations of improper conduct by participants in the electoral process.
This HillNote explains the process under the Canada Elections Act (3.1 MB, 371 pages) (CEA) that governs contested elections and summarizes the investigative role of Elections Canada where irregularities or improprieties are alleged. It uses recent examples to illustrate the approaches set out in the CEA.
Contested elections abroad
Examples from other countries illustrate the type of election challenges that can occur. In the course of the American presidential election of 2000, the United States Supreme Court was called on to decide whether the recount of ballots ordered by the Florida Supreme Court should continue in certain electoral districts in that state. The recount was ordered following allegations that voting machines did not properly record votes in a very close election, where 1,784 of almost six million votes cast separated the two candidates.
The Court was confronted with the basic question of what constituted a valid or “legal” vote, which had no clear answer in U.S. election law.
In 2010, a United Kingdom court invalidated an election result where a winning candidate, the incumbent member of Parliament, was found to have falsely accused another candidate of courting Muslim extremist voters, with the aim of affecting the election outcome. The offending candidate was barred from sitting in the House of Commons for three years.
Contested elections in Canada
In Canada, there have been occasions where a court has voided election results due to what have been termed “irregularities,” and for unlawful acts. In 1990, an election in the federal riding of York Centre was nullified because a sufficient number of ineligible voters cast ballots in an election decided by only 77 votes.
In 1950, a court nullified a candidate’s election to the Nova Scotia legislature because of errors on the part of the returning officer in the affected riding. The errors consisted of improper rejection or counting of ballots, and voting by unqualified electors.
In 1993, a member of the New Brunswick legislature was required to vacate his seat and was disqualified from running as a candidate for five years following a conviction for a corrupt or illegal practice. He had induced a 16-year-old to vote knowing she was ineligible to do so.
The process for contested elections under the Canada Elections Act
The validity of the election of a candidate in a federal general election may only be contested under Part 20 of the CEA, and only by a voter. An eligible voter in a riding may apply to a court to nullify an election in that riding on the grounds that there were irregularities or unlawful acts (fraud or illegal or corrupt practices) that affected the results of an election.
The case law shows that courts will not lightly overturn an election result. They will carefully scrutinize the nature of an alleged irregularity. Generally, it appears from the case law that votes by persons not entitled to vote could constitute an irregularity affecting the results; if the number of these votes exceeded the margin of victory, the result could be voided, as was the case in York Centre in 1990.
The Chief Electoral Officer (CEO), although typically named as a party in proceedings to contest an election, is restricted to assisting the courts by providing relevant documents and explaining the requirements of the CEA. The CEO does not take a position on the merits of the case before the court.
Recent examples of contested elections include a challenge by an unsuccessful candidate in the 41st general election who has alleged polling day irregularities in Etobicoke Centre. The alleged irregularities include improper voter identification and improper vouching for voters without the required identification. The margin of victory in that riding was 26> votes, while 180 votes were alleged to have been improperly cast.
Seven challenges have recently been launched in the Federal Court of Canada by individual voters. They allege unlawful acts (the use of automated or live telephone calls misdirecting voters on where to vote), rather than irregularities, that affected the outcome in seven ridings.
Contested elections are distinguished from judicial recounts, which are required by law and initiated by a returning officer where the margin of victory in a riding is less than 1/1000th of all votes cast in an electoral district, or which may be requested by a voter within four days of the certified result of an election.
Investigations of offences by Elections Canada
The CEA prescribes a broad range of offences, some of which are exceeding election spending limits for political parties and candidates, voting by ineligible individuals, failing to file an election return, and interfering with or disrupting the voting process.
The process of investigating offences is led by the Commissioner of Canada Elections, operating within Elections Canada, but independent of the CEO. If the Commissioner has reasonable grounds to believe that an offence has been committed, the matter may be referred to the Public Prosecution Service of Canada to determine whether to initiate a prosecution.
The punishments prescribed in the CEA for offences typically take the form of fines or imprisonment or a combination of both. For some activities deemed “illegal or corrupt” acts by winning candidates, the CEA requires that the person vacate his or her seat in the House of Commons and be barred from running in a federal election for five or seven years. Apart from these provisions, there does not appear to be express authority to enable a judge to void an election upon a conviction for an offence.
Recent investigations initiated by Elections Canada include an investigation into allegations of improper telephone communication with voters during the 41st general election. It is alleged that the phone calls purported to be from Elections Canada and gave incorrect information about changes to the location of polling places.
Elections Canada responds to many complaints of unlawful conduct during and between elections. Only where the allegations are shown to be founded is an investigation pursued.