Dominion Controverted Elections Act
An election may be contested or controverted (i.e., challenged) if the announced results of the election
in an electoral district are very close, if there are allegations of irregularities in voting or in the
counting of ballots, or if there are allegations of corrupt or illegal practices. An election petition [178]
may be filed by a candidate or by any qualified elector who alleges irregularities or corruption in the
election that would disqualify an elected Member of the House of Commons. Such petitions are investigated
and tried under the Dominion Controverted Elections Act. [179]
Trials are conducted without jury by two superior court justices for the province in which the disputed
election took place. The judges’ report is transmitted to the Speaker of the House of Commons and may
result in the election being awarded to a candidate other than the one who was declared elected by the
returning officer; or the election could be declared null and void; or the petition could be dismissed by
the court.
Prior to Confederation, Nova Scotia, New Brunswick and the Province of Canada followed the example of the
British Parliament in dealing with electoral matters in their own legislatures. After Confederation,
between 1867 and 1873, the Speaker of the House of Commons regularly appointed six Members to serve on the
General Committee of Elections to adjudicate controverted elections. [180]
This committee routinely passed judgement on cases of bribery and corruption in electoral contests, usually
on partisan grounds and regardless of any findings of corrupt practices. Indeed, only one election was ever
voided. [181]
In 1873, the House transferred to the provincial courts exclusive jurisdiction over matters relating to the
election of its Members. [182]
The following year a new law was passed establishing the provincial supreme courts as election courts. [183]
With the introduction of the secret ballot, simultaneous elections across the country, and the enactment of
new election laws, the number of contested elections gradually dropped. [184]
Since 1949, only five elections have been declared void, all on the grounds that a number of ballots were
unlawfully cast. [185]
The Election Petition
A candidate or any qualified elector who wishes to contest the result of an election must file an election
petition with the office of the clerk of the provincial or territorial court designated in the Dominion
Controverted Elections Act to hear such cases. [186]
The election petition includes the particulars of the complaint whether it be of an undue (i.e., illegal or
improper) return or election of a Member, [187]
of no return, [188]
of a double return, [189]
of a special return, [190]
or of a corrupt or illegal practice pursuant to the Canada Elections Act. [191]
The petition must be signed by the petitioner or petitioners and a security deposit of $1000 must be left
with the court when the petition is filed. [192]
The Parliament of Canada Act provides that a Member, who has been declared elected, may not resign
his or her seat while his or her election is being contested. [193]
However, if the Member gives notice to the court or trial judges that he or she does not intend to oppose
the election petition, the Member cannot sit or vote in the House of Commons until the trial judges have
reported to the Speaker. [194]
Trial of the Election Petition
The election petition is heard by two superior court judges in the province and the electoral district where
the election has been challenged. [195]
The trial of the election petition is to determine whether a Member was duly elected or not, whether another
candidate should have been duly elected instead, or whether the election should be declared void. The judges
conduct an inquiry, scrutinizing the ballots for irregularities and investigating any claims of illegal or
corrupt electoral practices. The judges may also call and examine witnesses.
At the conclusion of the trial of an election petition, the trial judges render a decision which is
transmitted to the Speaker of the House of Commons by means of a certificate within 12 days of the decision
being rendered. [196]
If any party to the case is dissatisfied with the court’s decision, he or she may appeal to the
Supreme Court of Canada within eight days of the date on which the trial judges’ decision was given. [197]
If the trial judges determine that corrupt or illegal practices have occurred, the judges also provide the
Speaker with a report indicating the corrupt practice committed and naming the individuals involved; at the
same time, they may submit a special report outlining any matters which ought to be referred to the House of
Commons. [198]
It is up to the House of Commons to deal with the matter as it sees fit. No new writ for an election can be
issued unless the House orders it. [199]
Role of the Speaker
As soon as the Speaker receives the certificates and reports of the trial judges (or the Supreme Court if an
appeal had been made), he or she communicates the decision to the House. [200]
The Speaker then takes the necessary steps to confirm or alter the return or to issue a writ for a new
election. [201]
If the trial judges find that an election was a valid election and that the Member was duly elected, the
Speaker informsthe House accordingly and the certificate of judgement appears in that day’s
Journals. [202]
If the court has awarded the election to another candidate, the Speaker must take the necessary action to
alter the return [203]
and the other candidate takes the necessary steps to claim his or her seat. If the trial judges find that
the successful candidate or his or her agent has committed any corrupt or illegal practice, the election is
void. [204]
The seat becomes vacant when the Speaker receives the certificate of the trial judges or the Supreme Court.
Until that time, the person elected is entitled to all the benefits, services and allowances that come with
being a Member of Parliament. The Speaker addresses a warrant to the Chief Electoral Officer for the issue
of a new writ of election in the electoral district in question. [205]
A by-election must be held to fill the vacancy, and the Prime Minister has six months from the date on
which the Chief Electoral Officer receives the Speaker’s warrant to announce the date of the
by-election. [206]