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Performance Report – For the period ending March 31, 2013

Judicial Decisions and Ongoing Proceedings


Judicial Decision

Opitz v. Wrzesnewskyj

Mr. Wrzesnewskyj, the second-place candidate in the May 2, 2011, general election in the electoral district of Etobicoke Centre (Ontario), sought a declaration under paragraph 524(1)(b) of the Canada Elections Act that the election was null and void. He alleged that there were irregularities in the voting process that affected the result of the election. The trial judge allowed the application on May 18, 2012. The results of the election were set aside, and a new election was ordered.

The decision was appealed to the Supreme Court of Canada. On October 25, 2012, in a 4–3 decision, the Supreme Court allowed the appeal and dismissed the cross-appeal, thus upholding the results of the election in Etobicoke Centre.

Ongoing Proceedings

Henry v. Canada (Attorney General)

On January 30, 2008, an action was filed in the Supreme Court of British Columbia by individuals and groups challenging the constitutionality of the new voter identification requirements in the Canada Elections Act. The applicants claimed 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.

On May 3, 2010, the judge ruled that, while the provisions of the Act that require electors to prove their identity and residence infringe the right to vote guaranteed by section 3 of the Charter, such a restriction is demonstrably justified in a free and democratic society. The validity of the provision at issue was therefore upheld. The applicants appealed the decision. The appeal was heard by the British Columbia Court of Appeal on February 4–6, 2013, and the Court reserved its decision.

Burkhart v. Attorney General of Canada et al.
Ferance et al. 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 made distinct applications to the Federal Court to have the election in their respective electoral districts in the 41st general election declared null and void, pursuant to paragraph 524(1)(b) of the Canada Elections Act. The grounds of the applications were that deceptive calls had been 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 had affected the results of the elections. The electoral districts involved are Nipissing–Timiskaming (Ontario), Winnipeg South Centre (Manitoba), Elmwood–Transcona (Manitoba), Saskatoon–Rosetown–Biggar (Saskatchewan), Vancouver Island North (British Columbia) and Yukon.

On May 23, 2013, Justice Mosley rejected the applications, finding that while electoral fraud had occurred, the fraud was not on a sufficient scale to undermine the integrity of the results in the districts concerned.

Klevering v. Attorney General of Canada et al.

The applicant, who was the Marijuana Party candidate in Guelph (Ontario) in the 41st general election, filed an application in June 2012 contesting the election in that electoral district. He alleged that the results of the election – that is, the number of votes cast for him – were affected by improper calls, purporting to be from Elections Canada, directing voters to non-existent polling stations. He is not alleging, however, that the respondent member of Parliament – whose supporters were also targeted by these calls – would not have been elected. The respondent member of Parliament filed a motion to strike on a number of grounds, including that the application was filed out of time.

The motion to strike was heard on October 29, 2012, and the court has reserved its decision.

In a few other cases, Elections Canada is the defendant or respondent in proceedings arising from incidents that occurred during previous elections. These cases are following their normal course through the courts.