Page: 38
What must not be overlooked, however, is the Court’s admonition
that a reviewing court retains a discretion to decline to annul an
election even in situations involving fraud or other forms of
corruption. This was a point more recently noted in McEwing v
Canada (Attorney General), 2013 FC 525, [2013] 4 FCR 63,
where Justice Richard Mosley stated:
[81] What may constitute a corrosive effect on the
integrity of the electoral process will depend on the
facts of each case. I do not read the comments of the
majority in paragraph 43 of Opitz as providing
authority for the proposition that the Court may
overturn election results in every case in which
electoral fraud, corruption or illegal practices have
been demonstrated. In that paragraph, the Supreme
Court cited Cusimano v Toronto (City), 2011 ONSC
7271, [2011] OJ No 5986 (QL) at para 62: “An
election will only be set aside where the irregularity
either violates a fundamental democratic principle
or calls into question whether the tabulated vote
actually reflects the will of the electorate.”
[82] At paragraph 48 of Opitz, the majority
cautioned that annulling an election would
disenfranchise not only those persons whose votes
were disqualified (in the context of an irregularities
case) but every elector who voted in the riding. That
suggests, in my view, that the Court should only
exercise its discretion to annul when there is serious
reason to believe that the results would have been
different but for the fraud or when an electoral
candidate or agent is directly involved in the fraud.
Justice Barnes held what can be taken from the relevant authorities is that attempts by
electoral candidates or their agents to purchase the votes of constituents are an insidious practice
that corrodes and undermines the integrity of any electoral process. He concluded that in the
matter before him there was clear evidence of widespread and openly conducted vote buying
activity carried out by four of the respondents and that none of the several affiants who witnessed
these events were cross-examined on their evidence which, therefore, stood unchallenged. It was