Hi Ho! Hi Ho! It’s Off To Court We Go! Or do we?

Posted on: Sunday, February 26, 2012
Posted at: 4:35 PM

Hi Ho! Hi Ho! It’s Off To Court We Go! Or do we?

PART 20 of the Canada Elections Act discusses Contested Elections:

Means of contestation

522. (1) The validity of the election of a candidate may not be contested otherwise than in accordance with this Part.

No effect on rights and obligations

(2) The making of an application to contest an election does not affect any right or obligation of a candidate in that election.

Nul and void election

523. The election of a person is nul and void if, under section 65, the person was not eligible to be a candidate.

Contestation of election

524. (1) Any elector who was eligible to vote in an electoral district, and any candidate in an electoral district, may, by application to a competent court, contest the election in that electoral district on the grounds that

(a) under section 65 the elected candidate was not eligible to be a candidate; or

(b) there were irregularities, fraud or corrupt or illegal practices that affected the result of the election.

Exception

(2) An application may not be made on the grounds for which a recount may be requested under subsection 301(2).

301(2) Grounds for recount

The judge shall fix a date for a recount if it appears, on the affidavit of a credible witness, that

(a) a deputy returning officer has incorrectly counted or rejected any ballots, or has written an incorrect number on the statement of the vote for the votes cast for a candidate; or

(b) the returning officer has incorrectly added up the results set out in the statements of the vote.

Competent courts

525. (1) The following courts are competent courts for the purposes of this Part:

(a) a court listed in subsection (2) that has jurisdiction in all or part of the electoral district in question; and

(b) the Federal Court.

Courts

(2) For the purposes of paragraph (1)(a), the courts are

(a) in the Province of Ontario, the Superior Court of Justice;

(b) in the Province of Quebec, the Superior Court;

(c) in the Provinces of Nova Scotia and British Columbia, Yukon and the Northwest Territories, the Supreme Court;

(d) in the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, the Court of Queen’s Bench;

(e) in the Provinces of Prince Edward Island and Newfoundland, the Trial Division of the Supreme Court; and

(f) in Nunavut, the Nunavut Court of Justice.

Rules of procedure

(3) An application shall be dealt with without delay and in a summary way. The court may, however, allow oral evidence to be given at the hearing of the application in specific circumstances.

S.C. 2002, c. 7, s. 94; S.C. 2002, c. 8, s. 117.

Security, service of application

526. (1) An application must be accompanied by security for costs in the amount of $1,000, and must be served on the Attorney General of Canada, the Chief Electoral Officer, the returning officer of the electoral district in question and all the candidates in that electoral district.

Increase of security

(2) The court may, if it considers it just, increase the amount of the security.

Time limit

527. An application based on a ground set out in paragraph 524(1)(b) must be filed within 30 days after the later of

(a) the day on which the result of the contested election is published in the Canada Gazette, and

(b) the day on which the applicant first knew or should have known of the occurrence of the alleged irregularity, fraud, corrupt practice or illegal practice.

Withdrawal of application

528. An application may not be withdrawn without leave of the court.

Notice of appearance

529. Any person referred to in subsection 526(1) may, within 15 days after being served with the application, file with the court a notice of appearance if he or she wishes to take part in the proceedings.

Evidence

530. In a proceeding in relation to an application, the written statement of the returning officer is, in the absence of evidence to the contrary, sufficient evidence of the holding of the election and of any person named in the certificate having been a candidate.

Dismissal of application

531. (1) The court may at any time dismiss an application if it considers it to be vexatious, frivolous or not made in good faith.

Court’s decision

(2) After hearing the application, the court may dismiss it if the grounds referred to in paragraph 524(1)(a) or (b), as the case may be, are not established and, where they are established, shall declare the election null and void or may annul the election, respectively.

Duties of court clerk

(3) The clerk of the court shall

(a) send copies of the decision to the persons mentioned in subsection 526(1), to any intervenor and to the Speaker of the House of Commons; and

(b) inform the Speaker of the House of Commons as to whether or not an appeal has been filed under subsection 532(1).

Informing House of Commons

(4) Except when an appeal is filed under subsection 532(1), the Speaker of the House of Commons shall communicate the decision to the House of Commons without delay.

Appeal

532. (1) An appeal from a decision made under subsection 531(2) lies to the Supreme Court of Canada on any question of law or fact, and must be filed within eight days after the decision was given.

Procedure

(2) The Supreme Court shall hear the appeal without delay and in a summary manner.

Copies of decision

(3) The registrar of the Supreme Court shall send copies of the decision to the persons mentioned in subsection 526(1), to any intervenor and to the Speaker of the House of Commons.

Informing House of Commons

(4) The Speaker of the House of Commons shall communicate the decision to the House of Commons without delay.

2012-02-26  »  somecanuckchick