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Performance Report – For the period ending March 31, 2012

Judicial Decisions and Proceedings

Implementation of Decisions

Proceeding Details and Impact
Fonds conservateur du Canada v. Le directeur général des élections du Canada, (District de Montréal);
Fonds conservateur du Canada v. Le directeur général des élections du Canada, (District de Québec);
Castonguay et al. v. Le directeur général des élections du Canada; Boucher et al. v. Le directeur général des élections du Canada
On November 26, 2010, two groups of candidates endorsed by the Conservative Party of Canada in the 39th general election filed two distinct court applications under section 459 of the Canada Elections Act, seeking an order to be relieved from a request by the Chief Electoral Officer to make corrections to their electoral campaign returns for that election. On December 14, 2010, the Conservative Fund Canada filed two court applications under section 434 of the Act, seeking an order for the groups of candidates to be relieved from similar requests by the Chief Electoral Officer with respect to their 2005 and 2006 annual financial transactions returns and their election expenses returns for the 39th general election.

The Chief Electoral Officer had requested that these expenses be removed from reported expenses in the candidates' returns and instead be included in the party's returns.

All of these applications were eventually withdrawn, and the returns were amended as requested by the Chief Electoral Officer.
Callaghan v. Canada (Chief Electoral Officer) The official agents of 67 candidates in the 39th general election sought an order for the reimbursement of claimed election expenses related to an advertising program administered by the Conservative Party of Canada. The Chief Electoral Officer had refused to certify these expenses for reimbursement because he was not satisfied, based on the evidence available to him, that the expenses had been incurred by the candidates and that the expenses had been reported at their commercial value. In January 2010, the Federal Court ordered the delivery of certificates for the reimbursement of the expenses.

On February 28, 2011, the Federal Court of Appeal overturned the Federal Court's decision. It found that the Chief Electoral Officer's refusal to certify the expenses was reasonable on the basis of both the law and the material before him. While the official agents initially filed an appeal of the Federal Court of Appeal's decision to the Supreme Court of Canada, the appeal was withdrawn, and the decision of the Federal Court of Appeal has been implemented.
Conservative Fund Canada v. Chief Electoral Officer of Canada On December 31, 2009, the Ontario Superior Court issued an order concerning election expenses reports submitted by the Conservative Party of Canada to the Chief Electoral Officer after the 2004 and 2006 general elections. The order authorized the chief agent of the party to deduct the amount of GST since refunded by the Canada Revenue Agency from the total election expenses declared in the reports.

The Chief Electoral Officer appealed this decision because, in his view, the Canada Elections Act requires that goods and services be reported to reflect their "commercial value." This is to ensure that political parties compete on a level playing field within their spending limit. The commercial value of a good or service includes all taxes payable on the purchase, whether actually paid or unpaid.

The appeal was heard in June 2010 by the Ontario Court of Appeal, and the Court issued its judgment on December 21, 2010. The Court of Appeal allowed the Chief Electoral Officer's appeal and reaffirmed the central importance of spending limits in ensuring a level playing field among electoral competitors.

Leave to appeal to the Supreme Court of Canada was refused.


Ongoing Proceedings

Proceeding Details and Impact
Henry v. Canada (Attorney General) On January 30, 2008, an action was filed in the Supreme Court of British Columbia by individuals challenging the constitutionality of the voter identification requirements of the Canada Elections Act. The applicants asserted that the requirements would prevent electors from exercising their right to vote, as guaranteed by section 3 of the Canadian Charter of Rights and Freedoms.

The case was heard in spring and fall 2009, and the Court rendered its decision on May 3, 2010. The judge ruled that the provision of the Act stating that an elector who fails to prove his or her identity and residence in accordance with the Act shall not receive a ballot or be allowed to vote infringes on the right to vote guaranteed by section 3 of the Charter. However, the judge held that the provision constituted a reasonable limit demonstrably justified in a free and democratic society. The validity of the provision at issue was therefore upheld.

The applicants appealed the decision, and the appeal is scheduled to be heard by the British Columbia Court of Appeal in February 2013.
Wrzesnewskyj v. Attorney General (Canada) Mr. Wrzesnewskyj applied to the Ontario Superior Court of Justice on June 28, 2011, under paragraph 524(1)(b) of the Act, contesting the results of the May 2, 2011, general election in the electoral district of Etobicoke Centre (Ontario) and seeking a declaration that the election was null and void. He alleged that there were irregularities that affected the result of the election. There was a difference of 26 ballots between the candidate who received the highest number of votes in the election and the one who received the second-highest number of votes.

The case was heard in Toronto from April 24 to May 2, 2012. The judge rendered his decision on May 18, 2012, setting aside 42 ballots on account of irregularities with respect to the registration process and 27 ballots on account of irregularities in applying the rules regarding vouching. As a result, he declared the election null and void.

Both candidates have appealed the decision to the Supreme Court of Canada. The case was heard on July 10, 2012.
Burkhart v. Attorney General of Canada et al.;
Ferance et al. v. Attorney General of Canada et al.;
Bielli v. Attorney General of Canada et al.;
Reid v. Attorney General of Canada et al.;
Parlee v. Attorney General of Canada et al.;
McEwing et al. v. Attorney General of Canada et al.;
Kafka v. Attorney General of Canada et al.
The applicants applied to the Federal Court to have the election in their respective electoral district at the 41st general election declared null and void, pursuant to paragraph 524(1)(b) of the Canada Elections Act. The grounds of the applications are that calls were purposefully made to electors who supported the candidates of specific parties to provide them with incorrect information about their polling site and that these calls affected the results of the elections. The electoral districts involved are Don Valley East (Ontario), Nipissing–Timiskaming (Ontario), Winnipeg South Centre (Manitoba), Elmwood–Transcona (Manitoba), Saskatoon–Rosetown–Biggar (Saskatchewan), Vancouver Island North (British Columbia) and Yukon.

The Federal Court has been seized with preliminary motions, and a hearing date has yet to be set.
Other In a few other cases, Elections Canada is the defendant or respondent in proceedings arising from incidents that occurred during the 41st general election. These cases are following their normal course through the courts.