Evidence has recently come to light that among other dirty tricks to suppress the NDP and Liberal vote, fraudulent robocalls where made to voters in several ridings by a firm linked to the Conservative party.
Understaffed Elections Canada has been investigating since last summer, and the leaders of the NDP and Liberal parties have called for a full inquiry.
But there is also a remedy under the Elections Canada Act that many may not be aware of, for s. 524(1) of the Act provides that:
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:
b) there were irregularities, fraud or corrupt or illegal practices that affected the result of the election.
Section 531 (2)of the Act further provides:
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.
But anyone thinking about invoking their right to file an application under s. 524(1) should be aware that under s. 527, their right to do so is time limited, for such an application 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.
The question that arises here is how a court will interpret the phrase "first knew or should have known" in light of the recent revelations concerning robocalls and other dirty tricks that many voters may not have previously known about either because they did not get such a call, or did not appreciate the fraudulent nature of a call they did receive.
Anyone contemplating bringing such an application should also be aware that under s. 528, an application may not be withdrawn without leave of the court.
The foregoing should not be taken as legal advice, and as most will know, litigation can be expensive and carries the risk of having to pay another party's costs as well. For these reasons and others, anyone thinking about bringing an application under s. 524(1) would be wise to get legal advice before doing so.
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