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15.3 Challenges To Election Results
The Act allows challenges to elections in certain circumstances.
86 In extreme cases, the results of an election can be nullified, but this is quite rare, as was confirmed by the Supreme Court of Canada in a recent application contesting an election in the federal riding of Etobicoke Centre.
87 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. In the Etobicoke Centre case, the unsuccessful candidate in the 41st general election alleged that votes had been cast improperly as a result of polling day irregularities, including improper voter identification and polling day registration, and improper vouching for voters who lacked the required identification. The margin of victory in that riding was 26 votes, while 180 votes were alleged to have been improperly cast. The Supreme Court, by a slim majority (5–4), overturned the lower court's decision to nullify the election result, holding that courts should not interfere with the results of an election unless there is evidence that ineligible voters cast ballots or fraudulent practices occurred and that these activities likely affected the results of an election.
Other examples of contested elections include a challenge by seven voters in the Federal Court of Canada alleging 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. The Federal Court in those cases found that, although there was evidence of massive fraud in the use of automated calls to misdirect voters on where to vote, there was insufficient evidence that the unlawful acts affected the results of the election.
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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 one one-thousandth 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.
Finally, as noted earlier, a finding of guilt in respect of an illegal or corrupt act, as defined in the
Canada Elections Act, will also result in an elected Member of Parliament losing his or her right to sit in the House of Commons, creating a vacancy and requiring a by-election.
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