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Elections - Federal (2). Sinclair-Desgagné v. Canada (Chief Electoral Officer)
In Sinclair-Desgagné v. Canada (Chief Electoral Officer) (SCC, 2026) the Supreme Court of Canada allowed an appeal, this brought against a Quebec Superior Court ruling that "dismissed the contested election application brought by the runner-up candidate", this under Canada Elections Act s.532 ['Appeal'] and where an election candidate lost by one vote due to postal mishap.
The court considers the structure and purpose of the Canada Elections Act, here during a statutory interpretation assessment of CEA s.524(1)(b) ['Contestation of election'], this focussing on the meaning of 'irregularities' and the 'Opitz' test:[26] ... As the majority in Opitz recognized, the Canada Elections Act gives effect to the right to vote (para. 12; see also Frank, at para. 11). The Act must be interpreted consistent with its purpose “to enfranchise all persons entitled to vote and to allow them to express their democratic preferences” (Opitz, at para. 35). As a result, “[t]he constitutional right to vote and the enfranchising purpose of the Act are of central importance in construing the words ‘irregularities . . . that affected the result’” (para. 36). At the same time, the majority in Opitz emphasized that “enfranchisement . . . is not free-standing”, and procedural measures designed to ensure that only entitled persons vote are equally important to the integrity of the democratic process and public confidence in its fairness (para. 38). Interpreting s. 524(1)(b) therefore requires reconciling the imperatives of enfranchisement and the integrity of the democratic process (para. 38).
B. Text and Context of Section 524(1)(b)
[27] Turning to the text and context of s. 524(1)(b), the majority in Opitz observed that the word “irregularities” appears alongside the words “fraud or corrupt or illegal practices”, which all “speak to serious misconduct” (para. 42). The majority applied the “noscitur a sociis” or “associated words” rule of statutory interpretation, which provides that a term or expression should be interpreted by considering the surrounding terms (paras. 40-43, quoting 2747‑3174 Québec Inc. v. Quebec (Régie des permis d’alcool), 1996 CanLII 153 (SCC), [1996] 3 S.C.R. 919, at para. 195; see also B.J.T. v. J.D., 2022 SCC 24, [2022] 1 S.C.R. 668, at para. 94). The common thread among these associated words is “the seriousness of the conduct and its impact on the integrity of the electoral process” (Opitz, at para. 43). As the majority stated, “Parliament must have contemplated mistakes and administrative errors that are serious and capable of undermining the integrity of the electoral process” (para. 43; see also para. 42). As a result, not every mistake or administrative error qualifies as an irregularity. Non-compliance with the legislation or any deviation from the statutory procedure is also insufficient on its own to annul an election (para. 39).
C. Balancing Competing Democratic Values
[28] Lastly, the majority in Opitz stated that the meaning of “irregularities” must be informed by balancing the interrelated and sometimes competing democratic values engaged by the federal electoral system. In addition to “the central value [of] the Charter-protected right to vote”, these values include “certainty, accuracy, fairness, accessibility, voter anonymity, promptness, finality, legitimacy, efficiency and cost” (para. 44). Tens of thousands of election workers administer elections under difficult circumstances, and therefore some degree of administrative imperfection is inevitable (paras. 2 and 46). The electoral system is “not designed to achieve perfection, but to come as close to the ideal of enfranchising all entitled voters as possible” (para. 50). The provision for contesting elections serves to restore the accuracy and reliability of results that have been compromised, balanced against the need for prompt and final resolution of election outcomes and the efficiency and stability of the electoral system (para. 47). Annulling an election is a remedy with serious consequences and must be reserved for cases where the evidence establishes that the irregularity affected the result of the election and thereby undermined the integrity of the electoral process (paras. 2 and 51).
D. The Substantive Approach to an Irregularity That Affected the Result and the Three-Step Test
[29] With these considerations in mind, the majority in Opitz adopted a “substantive approach” to the interpretation of an “irregularit[y] . . . that affected the result” under s. 524(1)(b), in preference to the stricter “procedural approach” that had prevailed in some lower courts (paras. 54 and 56-57). Under the procedural approach, any vote cast under an irregular procedure was invalid. The majority rejected that approach as placing form over substance. The substantive approach gives primacy to the underlying right to vote and holds that failing to follow a procedural safeguard is not determinative (paras. 55-57). It recognizes that procedural safeguards “should not be treated as ends in themselves. Rather, they should be treated as a means of ensuring that only those who have the right to vote may do so” (para. 34).
[30] Under the substantive approach, the majority in Opitz established a three-step test for when an election should be annulled based on “irregularities . . . that affected the result of the election” under s. 524(1)(b). The applicant bears the burden of proof at each step on a balance of probabilities (paras. 53 and 62).
[31] First, the applicant must establish an irregularity. Irregularities are “serious administrative errors that are capable of undermining the electoral process — the type of mistakes that are tied to and have a direct bearing on a person’s right to vote” (Opitz, at para. 24).
[32] Second, the court must determine whether the irregularity affected the result of the election. This requires showing that “someone not entitled to vote, voted” or that “a person entitled to vote was improperly prevented from doing so, due to an irregularity on the part of an election official” (Opitz, at para. 25).
[33] Third, if the applicant establishes that an irregularity affected the result of the election, the court “may” annul the election (s. 531(2)). The use of the permissive “may” indicates that a court has discretion whether to do so. Important considerations are whether the number of impugned votes “is sufficient to cast doubt on the true winner of the election or whether the irregularities are such as to call into question the integrity of the electoral process” (Opitz, at para. 23). At the same time, because “voting is conducted by secret ballot in Canada, this assessment cannot involve an investigation into voters’ actual choices” (para. 23). Instead, “[i]f a court is satisfied that, because of the rejection of certain votes, the winner is in doubt, it would be unreasonable for the court not to annul the election” (para. 23). At paras 36-71 the court walks through the Opitz test in this case and finds that the election must be annulled (during which it includes a consideration of the 'magic number' annulment threshold).
Lastly, the court addresses concerns that such a ruling will not 'open the floodgates' to excess litigation:E. This Decision Does Not Open Floodgates
[72] The court below and Ms. Auguste were both concerned that finding an irregularity and annulling the election in this case would invite a proliferation of future electoral challenges. In my respectful view, this concern, while understandable, is not well-founded. The irregularity identified is narrowly circumscribed. It consists of a serious administrative error caused by Elections Canada relating to the exercise of an elector’s franchise, which Elections Canada discovered in time to correct, acknowledged it should have corrected, yet failed to do so. The approach adopted here will not encompass every minor error or imperfection, or situations where errors are corrected promptly, because such errors would have no bearing on an individual’s right to vote. Moreover, the Opitz framework has other requirements: the applicant must prove on a balance of probabilities that the irregularity affected the election result, and even then, the court retains a residual discretion not to annul the election. In many cases, the margin of victory will be large enough to prevent the magic number test from being met. By contrast, this case involves the extremely rare situation of a single confirmed lost ballot in an election decided by just one vote. . Sinclair-Desgagné v. Canada (Chief Electoral Officer)
In Sinclair-Desgagné v. Canada (Chief Electoral Officer) (SCC, 2026) the Supreme Court of Canada allowed an appeal, this brought against a Quebec Superior Court ruling that "dismissed the contested election application brought by the runner-up candidate", this under Canada Elections Act s.532 ['Appeal'] and where an election candidate lost by one vote due to postal mishap.
The court considers 'mail-in ballots', here in a federal elections context:[45] Mail-in ballots are one type of “special ballot”, a voting system first established during the First World War to allow Canadian soldiers to vote while overseas (Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy: Final Report (1991), vol. 2 (“Lortie Report”), at pp. 50-51). Mail-in voting became an especially important way for Canadians to exercise their franchise during the COVID-19 pandemic and is now commonplace. Yet it is neither expressly provided for under the Canada Elections Act nor governed by legislative provisions. The legislation provides for “special ballots” (ss. 177 to 280), but the specific procedures that an elector must follow when voting by mail are established by the Chief Electoral Officer by administrative practice, rather than under a statutory provision. . Sinclair-Desgagné v. Canada (Chief Electoral Officer)
In Sinclair-Desgagné v. Canada (Chief Electoral Officer) (SCC, 2026) the Supreme Court of Canada allowed an appeal, this brought against a Quebec Superior Court ruling that "dismissed the contested election application brought by the runner-up candidate", this under Canada Elections Act s.532 ['Appeal'] and where an election candidate lost by one vote due to postal mishap.
Here the court establishes the statutory context for this interesting federal elections case:IV. Relevant Legislative Provisions
[20] The following legislative provisions are relevant to this appeal:Canadian Charter of Rights and Freedoms
3 Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
Canada Elections Act
[239] (2) In order to have their special ballot counted, an elector whose application for registration and special ballot was accepted by the returning officer in the elector’s electoral district shall ensure that the ballot is received at the office of that returning officer before the close of the polling stations on polling day.
....
240 For the purpose of this Division, an elector has the sole responsibility to ensure that
(a) his or her application for registration and special ballot is made within the period specified; and
(b) his or her special ballot is received within the period specified to be counted as a vote.
....
286 (1) One of the election officers referred to in subsection 283(1) shall make a record, in the prescribed form, of every objection to a ballot made by a candidate or candidate’s representative, give a number to the objection, write that number on the ballot and initial it.
(2) Every question that is raised by the objection shall be decided by the election officer who counts the votes, and the decision is subject to reversal only on a recount or on application under subsection 524(1).
....
[301] (2) The judge shall fix a date for a recount if it appears, on the affidavit of a credible witness, that
(a) an election 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.
....
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.
(2) An application may not be made on the grounds for which a recount may be requested under subsection 301(2).
....
[531] (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.
....
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. V. Legal Framework
[21] Section 524(1)(b) of the Canada Elections Act provides that any elector or candidate may contest an election on the grounds that “there were irregularities, fraud or corrupt or illegal practices that affected the result of the election.” Where such grounds are shown, s. 531(2) provides that the court “may annul the election”. The Act does not define what constitutes an irregularity. The interpretation of that term, and the framework for its application, were established by this Court in Opitz.
[22] Although Opitz concerned the validity of votes cast by persons alleged to have been ineligible to vote, the majority recognized that s. 524(1)(b) also applies where “a person entitled to vote was improperly prevented from doing so, due to an irregularity on the part of an election official” (para. 25). That situation arises here.
[23] The meaning and scope of s. 524(1)(b) are determined by applying the modern approach to statutory interpretation. The words of an Act must be read in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme and object of the Act and the intention of Parliament (Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; Piekut v. Canada (National Revenue), 2025 SCC 13, at para. 42; R. v. Nguyen, 2026 SCC 10, at para. 79). The majority in Opitz applied the modern approach by drawing on three interpretive tools: the constitutional right to vote and the objectives of the Canada Elections Act; the text and context of s. 524(1)(b); and the reconciliation of the competing democratic values engaged (para. 26). . Sinclair-Desgagné v. Canada (Chief Electoral Officer)
In Sinclair-Desgagné v. Canada (Chief Electoral Officer) (SCC, 2026) the Supreme Court of Canada allowed an appeal, this brought against a Quebec Superior Court ruling that "dismissed the contested election application brought by the runner-up candidate", this under Canada Elections Act s.532 ['Appeal'] and where an election candidate lost by one vote due to postal mishap.
Here the court summarizes this case:[1] This case is a powerful reminder that, in a constitutional democracy, every vote counts. The case involves a contested election application brought under s. 524(1)(b) of the Canada Elections Act, S.C. 2000, c. 9, after the federal general election held in the electoral district of Terrebonne, Quebec, on April 28, 2025, was decided by a margin of just one vote.
[2] Elections Canada mistakenly placed the wrong postal code for the Terrebonne polling station on the prepaid return envelopes for several electors’ mail-in ballots. Elections Canada discovered the error over three weeks before election day, but did not contact any of the affected electors. After a judicial recount, the election in Terrebonne was decided by one vote. Then, shortly after election day, an elector’s mail-in ballot was returned to her undelivered by Canada Post in a return envelope bearing the postal code error: her vote was never counted.
[3] The question on this appeal is whether the postal code error, combined with Elections Canada’s failure to correct it before the election, was an “irregularit[y] . . . that affected the result of the election” under s. 524(1)(b) of the Canada Elections Act, and if so, whether the election should be annulled under s. 531(2). Answering that question involves applying the three-step test established by the majority of this Court in Opitz v. Wrzesnewskyj, 2012 SCC 55, [2012] 3 S.C.R. 76 (per Rothstein and Moldaver JJ.). First, it must be shown that there was an irregularity, which includes a serious administrative error. Second, it must be shown that the irregularity affected the result of the election by affecting the vote count. Finally, a court must decide whether to exercise discretion to annul the election.
[4] The Quebec Superior Court dismissed the contested election application brought by the runner-up candidate. The court ruled that the postal code error and Elections Canada’s failure to correct it involved a simple human error without dishonest or malicious intent, and therefore did not constitute an irregularity under the Canada Elections Act. Even had the court found an irregularity that affected the result of the election, it would not have exercised discretion to annul the election.
[5] The runner-up candidate appealed to this Court as of right under s. 532(1) of the Canada Elections Act. At the conclusion of the oral argument, a majority of the Court allowed the appeal. The election held in Terrebonne on April 28, 2025, was accordingly annulled, with reasons to follow. These are those reasons.
[6] A question of law raised by this appeal is whether an irregularity under s. 524(1)(b) includes a serious administrative error that is honest and unintentional but does not breach any statutory provision. In my view, it does. The key consideration is whether the administrative error was capable of undermining a voter’s franchise.
[7] In this case, each step of the Opitz test is met. First, the postal code error, combined with Elections Canada’s failure to correct it for over three weeks before election day, was a serious administrative error and therefore an irregularity under s. 524(1)(b). Elections Canada did not receive or count an elector’s vote because it took insufficient steps to correct the error, despite knowing that it had made a mistake, and despite its expectation that affected electors would have been contacted. Elections Canada caused the error and had the ability and responsibility to correct it. Second, the irregularity affected the result of the election by improperly preventing an elector from voting. Third, judicial discretion must be exercised to annul the election because the number of affected votes (one) exactly equals the margin of victory (one), leaving doubt as to the winner of the election. This conclusion enhances public trust in the electoral process by affirming that a federal election should not be decided by known and correctable official errors.
[8] The irregularity in this case — involving a serious administrative error caused by Elections Canada that it had the ability and responsibility to correct and that affected a voter’s franchise — is narrowly circumscribed and will not open floodgates to electoral challenges for every human error during a federal election. The stringency of the Opitz test ensures that the annulment of an election will remain an extremely rare occurrence.
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