On the other hand, if the Crown has failed to prove at least one of the six
means beyond a reasonable doubt in relation to an accused, then that
accused must be found not guilty of count 1.
Finally, if the Crown has failed to prove any of the essential elements of
count 1 beyond reasonable doubt in relation to an accused, you must
find that accused not guilty.
Minor changes have been made to these instructions at the request of
Wrzesnewskyj v. Attorney General of Canada et al.
[Indexed as: Wrzesnewskyj v. Canada (Attorney General)]
2012 ONSC 2873
Superior Court of Justice, Lederer J. May 18, 2012
Elections — Contested elections — Irregularities — Applicant contesting election under s. 524(1)(b) of Canada Elections Act on ground that
there were irregularities that affected result — Onus on applicant to
establish not only that there were irregularities but also that irregularities affected result — Applicable standard of proof being balance of
probabilities regardless of nature of alleged irregularity — Election
invalid if number of irregular votes exceeds plurality of votes cast —
Court not taking into account cumulative impact of irregularities that
did not affect result — Votes set aside on basis of failures to comply with
registration and vouching requirements — Number of votes set aside
exceeding plurality — Election declared null and void — Canada Elections Act, S.C. 2000, c. 9, s. 524(1)(b).
The applicant was an unsuccessful candidate in the 2011 federal election. The
election was decided by a plurality of 26 votes. The applicant contested the election under s. 524(1)(b) of the Canada Elections Act on the basis that there were
irregularities that affected the result of the election.
Held, the application should be granted.
There is a presumption of regularity in respect of elections. The onus was on
the applicant to prove not only that there were irregularities but also that the
irregularities affected the result; the onus did not shift to the respondent to disprove the second part of the test. The standard of proof was that of a balance of
probabilities, regardless of the nature of the irregularity being alleged. “
Irregularities” should be given a broad interpretation, and is not restricted to intentional conduct. An election is invalid if the number of irregular votes exceeds the
plurality of votes cast. It is not appropriate to take into account the cumulative
impact of irregularities that did not affect the result. In this case, votes were set
aside where the electors were not on the voting list and (a) there was a failure of
registration ( i.e., there was no confirmation that the elector was a qualified
elector because a registration certificate was not available or had not been
properly completed) and (b) vouching that did not comply with the requirements
of the Act was relied upon as the basis for providing a ballot to an elector. The
number of votes set aside exceeded the plurality of 26. The election was declared
null and void.