BWA Morning Espresso: SCC annuls the federal election in Terrebonne

Jeremy Opolsky (00:00:00)

Hello and welcome to Morning Espresso, a podcast from your friends at Breakfast With Appeal, where we discuss the newest appellate decisions from the Supreme Court of Canada and beyond. I'm Jeremy Opolsky, and I'm one of the hosts of Breakfast With Appeal.

Today we're discussing the SCC annulling the federal election in Terrebonne in the case of Sinclair-Desgagné and Canada.

I'm joined by Jon Silver, who will help us explore this decision.

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So, in April 2025, in the federal election, the riding of Terrebonne was declared for the Liberals. The Liberal candidate won by 44 votes, which triggered an automatic recount. After the recount, the Liberals won by a single vote. One vote. And days after the election, a voter notified the media that her absentee ballot was returned to her because Elections Canada had attached the wrong postal code. She declared that she was a Bloc voter, and the Bloc candidate then sought relief in the courts.

So, Jon. Nice to see you.

Jon Silver (00:00:59)

Nice to see you, nice to be here!

Jeremy Opolsky (00:01:00)

So how did this case get to the Supreme Court, and indeed a court at all?

Jon Silver (00:01:04)

Well, it's interesting, there's a specific provision in the Canada Elections Act that allows someone to contest an election on the basis of irregularities, fraud, or corrupt or illegal practices that affected the results of the election. So, under that provision, which is section 524 of the Canada Elections Act, the election was contested. That requires that the Court here, without delay in application, to determine whether or not that test has been met, whether there were regularities, fraud, or corrupt practices that affected the results of the election.

And there's an automatic right from that decision to go straight to the Supreme Court of Canada, which is quite unusual. And nonetheless, that's what happened here.

Jeremy Opolsky (00:01:45)

So, there's, there's no fraud or other illegality here. This is all the case of an irregularity. Right, Jon?

Jon Silver (00:01:51)

That's correct. It was—the allegation here was that there was irregularities as a result of some of the postal code writing on mail-in ballots, which we can get into in a second.

Jeremy Opolsky (00:02:01)

What happened to the Supreme Court, is that they allowed the appeal from the bench, which means they heard the appeal, they took a ten-minute recess, and they came back and said, “We're allowing the appeal.” And they annulled the April 2025 election, on the spot that day. The decision that they read from the bench said that a majority of the Court would allow the appeal.

So that left us with a question: What does the majority look like? Does it imply a dissent? And why did the majority determine that annulling the decision was the correct result? So, Jon, what did the majority look like and why?

Jon Silver (00:02:32)

So, the majority was written by Justice Jamal for a group of six judges. And essentially, they applied a three-part test to determine whether or not this irregularity arose to the level that they should annul the election. And so, in this three-part test, you first look at: What was the irregularity? Did it rise to the meaning of irregularity within, within the statute?

Second, you decide whether or not the irregularity affected the result. And then third, there's this ultimate discretion the court can exercise about whether or not to annul an election, because annulling an election is a, is a serious step. And so, the Court is not going to annul an election lightly.

And applying that three-part test, the Court concluded that this irregularity was one that warranted an annulment.

And so, starting with the irregularity itself, the Court looked at the, at the irregularity, which here was an administrative error. It was a—the elector sought to vote by mail, Elections Canada put the postal code wrong on the mail-in ballot, and it didn't end up getting to the right place. The mail was returned.

It turns out that Elections Canada knew about the error and did nothing to fix it, and so, what the Court said is that this postal code error, combined with the Elections Canada failure to correct it with a three-week period before the election, that was a serious administrative error that rose to the level of irregularity within the statute.

And it didn't need to mean bad faith, it didn't have to be fraud, didn't have to be a breach of a statute, it really just could be an administrative error that was serious, which is what the Court found here.

Second question. Did it affect the result? The focus there is not about whether or not this voter was going to vote the Bloc or Liberal. It's really, did the administrative error affect the election in the sense that it changed the vote count?

And the answer here was yes, because there was a causal link between the Elections Canada employee getting the postal code wrong and this voter not being able to vote.

Jeremy Opolsky (00:04:34)

They call it a magic number. Right, Jon?

Jon Silver (00:04:36)

Well, so that's at the third part of the test, because that's about whether or not it should actually be annulled. But at the second part of the test, there was some discussion about this being a mail-in voting, who's responsible for a mail-in ballot? And, you know, mail-in voting was, was discovered and—it wasn't discovered, it was introduced!—it was introduced in times of war to allow soldiers to vote, and, you know, it's had a long life. And we hear lots about mail-in voting in our—in the United States—

Jeremy Opolsky (00:05:03)

In our neighbour to the South.

Jon Silver (00:05:04)

In our neighbour to the South. But really, here, we're focused on what the statute says about mail-in votes. And there was some argument about the statute saying that mail-in voters are responsible for ensuring that their ballots are received, and what the majority says is, “Well, they're responsible, but they can't be responsible for clerical errors that Elections Canada knows about and doesn't correct.” Like, that would be absurd.

So what the Court ultimately says is, “Yes, the irregularity affected the result, and we're fine with the fact that the statute says this is a responsibility on the voter, because the voter can't be responsible for Elections Canada getting it totally wrong.”

The magic number test is the third part of the test ultimately deciding should the election be annulled. And what the Court said there is that you look, essentially, at the margin of error, right? The margin of error and the margin in the election. What was the vote margin for the win, and what were the number of votes that were affected? If that number is equal to or greater, then you know that the election result may have been affected.

So, what the Court decided to do here is they ultimately concluded that because there was a one-vote margin and the irregularity affected one vote, the election had to be annulled.

Jeremy Opolsky (00:06:17)

So, Jon, the existence of a six-judge majority implies also the existence of a dissent. What was the dissent like? I know it was written by Justice Martin and Justice Karakatsanis and concurred in by Justice Moreau, and this will be one of Justice Martin's last decisions. Why did they dissent, and what did their reasons argue?

Jon Silver (00:06:37)

So, they dissented on that first step of the test. They, in their view, the dissent, this administrative error didn't rise to the level of irregularity under this statute. And they say this for a few reasons. First, it was an administrative error. And in their view, the threshold for an irregularity should be high. It's in a statute when it's—it’s in a statute beside the words, you know, “fraud”, “corruption”. And so, by virtue of statutory interpretation principles, the irregularity has to be more than a simple clerical mistake. And so, for that reason they said, “This doesn't rise to the level of irregularity.”

They also leaned heavily on the statute putting responsibility for mail-in voting on the voter. They've pointed to, sort of, the self-help mechanisms that the voter had here, which was tracking their ballot and noticing that it hadn't reached the right destination and just going and voting on Election Day.

So those were the two main reasons. And ultimately, what the dissent concluded with was to say that if this mistake, which is just a clerical error affecting one vote, is enough to reopen an election result, that would undermine the stability, certainty, and finality of election results. And that was the basis of their dissent.

Jeremy Opolsky (00:07:48)

Kind of the floodgates argument.

Jon Silver (00:07:50)

Yeah, the floodgates argument plus the idea that this was just a clerical error and, you know, it doesn't rise to the real level that we were going to be on opening—we're going to be opening an election and not just throwing out this one vote, but all the votes.

Jeremy Opolsky (00:08:04)

So, here's the fun part, Jon. The lightning round. In one minute, pick a side. Which side do you think was right?

Jon Silver (00:08:11)

So, I'm attracted to the dissent’s reasoning. And I think they got it right because the statute is pretty clear. The statute says the responsibility for a mail-in ballot being received by the registered office, the returning office, is on the voter. And there were lots of different mechanisms here that the voter could have used, tracked their ballot, gone and voted.

And so when the statute says it's the voter’s responsibility if they choose to vote this way, the Supreme Court majority seems to sort of wash this away without really giving a lot of credence to the statutory language that puts the obligation on the voter. And if you think about that in conjunction with the fact that this is a pretty minor clerical error that had the effect of annulling an entire election, you know, I am a little bit persuaded by the floodgates argument and the stability of elections.

And if this type of, of clerical error rises to the level of irregularity, it's hard to see what other clerical errors wouldn't rise to the level of irregularity. So it seems to me to be watering down a little bit the standard for irregularity in annulling an election.

Jeremy Opolsky (00:09:20)

So I'm going to take the opposite side and, and stick with the majority here. For me—I take all your points, they’re excellent ones—for me, ultimately, I'm convinced by the majority's reference to the idea that the responsibility for your absentee ballot is about things that are outside of the control of Elections Canada, and that voters shouldn't be responsible for Elections Canada's own negligence.

Here, the majority really focuses on the fact, not that they made the mistake. Mistakes happen. But Elections Canada knew about this mistake. The Elections Canada worker didn't tell a supervisor, decided he didn't need to fix it and contact the voter. And that, combined with the flip side of the dissent, which is election integrity. It's one vote. This doesn't happen very often in Canada. And when you look at electors and say, “This is so close,” because of this irregularity, people should have faith in the election by running it again.

Let me just conclude by saying, in some irony, the by-election has happened. This happened in April 2026, which reaffirmed the same result. And the Liberals won by a much larger margin this time.

Thanks for listening to this edition of Morning Espresso. We’ll back to you soon in this busy season for the Supreme Court.