Original Source: CanLII

Sinclair-Desgagné v. Attorney-General of Canada
2025 QCCS 3859

Superior Court
Civil Chambers

CANADA
PROVINCE OF QUEBEC
DISTRICT OF TERREBONNE

N°: 700-17-021527-253
DATE: July 14, 2025

Presiding: The Honorable Éric Dufour, J.C.S.

NATHALIE SINCLAIR-DESGAGNÉ
Applicant

v.

ATTORNEY GENERAL OF CANADA
and
CHIEF ELECTORAL OFFICER OF CANADA
and
RETURNING OFFICER FOR THE ELECTORAL DISTRICT OF TERREBONNE
and
TATIANA AUGUSTE
and
MAXIME BEAUDOIN
and
MARIA CANTORE
and
ADRIENNE CHARLES
and
BENJAMIN RANKIN
Respondents

Judgment on Contested Election
(s. 524 of the Canada Elections Act)

[1] Following the April 28, 2025 federal election and a subsequent judicial recount, Tatiana Auguste (Auguste), the Liberal Party of Canada candidate, became the Member of Parliament for the electoral district of Terrebonne¹⁾. A single vote seperated her from her closest rival, Nathalie Sinclair-Desgagné (Sinclair-Desgagné), the Bloc Québecois candidate. A voter alerted media that her mail-in ballot, sent with the required lead-up time, was returned to her the day after election day with the notation “Déménagé ou inconnu - renvoi à l'expéditeur” (“moved or unknown - return to sender”)²⁾. In fact, the postal code printed on the prepaid envelope by the Returning Officer and sent to the voter had a mistake such that the last three digits did not correspond to the elections office. This voter claims to have voted for Sinclair-Desgagné.

[2] On May 23, 2025, Sinclair-Desgagné applied to contest the election pursuant to s. 524(1)(b) of the Canada Elections Act³⁾ and served notice on the Attorney-General of Canada (AGC), the Chief Electoral Officer of Canada (Elections Canada or CEC), the Returning Officer of the constituency of Terrebonne and the other candidates of the election. The AGC is appearing but only Elections Canada, Auguste and the Conservative Party of Canada candidate, Adrienne Charles (Charles), participated in the hearing. Charles supports Sinclair-Desgagné's application but Elections Canada limited its role to supporting the parties and the Court during the various procedural steps leading to and the hearing of the application.

[3] Fundamentally, this application is about whether the mistake on the ballot return envelope constitutes a reason to contest the election under s. 524(1)(b) of the Elections Act and whether this mistake influenced the result of the election. If so, the Court determine whether it should exercise its judicial discretion to annul the election pursuant to s. 531(2) of the Act.

[4] In summary, the Court finds that:

• The postal code mistake does not constitute an irregularity within the meaning of s. 524(1)(b) of the Elections Act as interpreted by the Supreme Court of Canada in Opitz v. Wrzesnewsky⁴⁾. This is a case of human error that can happen during a general election, committed inadvertently and without any dishonest or malevolent intention. Despite the regrettable consequences for the voter and Sinclair-Desgagné, this mistake does not in any way undermine the integrity of the Canadian electoral system in which the citizens can have confidence.
• Expanding the meaning of s. 524(1)(b) of the Elections Act to situations like those submitted by Sinclair-Desgagné would open the door to innumerable scenarios and more mundane errors, like the one in this application, arising in contested election applications. However, these types of mistakes inevitably happen and they should not constitute grounds to contest an election in situations where they do not affect the integrity of the electoral system. Accepting Sinclair-Desgagné's submissions would risk multiplying the number of constested elections and cause instability.
• Alternatively, even if the mistake constitutes an irregularity within the meaning of s. 524(1)(b) and this mistake influenced the result of the election, it would be unreasonable to annul the election because:
  • The voter was not prevented from voting. She had methods to ensure that her ballot would reach its destination that she did not use;
  • The voter could have went to the polling place and could have voted in person on the day of the election, as provided for in the Instructions provided by the special voting rules administrator;
  • The annulment of the election would suppress the right to vote for thousands who were able to vote on April 28, 2025;
  • The fates of three other disputed ballots were not decided during the judicial recount, given Auguste's victory. Even though this Court cannot decide them under s. 286 of the Elections Act, the Court can take them into account in considering whether to exercise its judicial discretion to annul the election. Auguste objects to the validity of these ballots.

[5] The Court therefore dismisses the application, albeit without costs.

[6] This dispute lies solely in a possible application of s. 524(1)(b) of the Elections Act. There is no dispute as to eligibility as described in s. 524(1)(a) and s. 524(2) does not apply. The questions that must be answered, as submitted by Sinclair-Desgagné, are as follows:

A) Does the mistake in the last three digits in the postal code on the ballot envelope and the Returning Officer's response constitute an irregularity within the meaning of s. 524(1)(b) of the Elections Act?
B) Subsequently, should the Court exercise its judicial discretion to annul the April 28, 2025 eection in the electoral district of Terrebonne?

[7] The Court first reviews the applicable legal framework.

Canada Elections Act PART 20 - Contested Elections 522 (1) The validity of the election of a candidate may not be contested otherwise than in accordance with this Part. (2) The making of an application to contest an election does not affect any right or obligation of a candidate in that 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.

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

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

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

(…) (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. 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. 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.

(…) 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. (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.

[8] In Opitz, the Supreme Court interpreted the meaning of the words “irrégularité […] ayant influé sur le résultat de l'élection” (“irregularity […] that affected the result of the election”). The integrity of the election system was a primary consideration of this interpretation.

[9] The majority employed the modern approach to statutory interpretation⁵⁾ and considered the following⁶⁾:

• the Constitution of Canada and the goals of the Elections Act
• the wording and context of s. 524(1)(b)
• the concilliation of opposing democratic values

[10] Starting with the Constitution of Canada, the majority referred to s. 3 of the Canadian Charter of Rights and Freedoms⁷⁾, which provides that [e]very citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly. The majority referred to Figueroa⁸⁾ for the proposition that the Charter provides for a right to all citizens to play a significant role in the election process⁹⁾. Practically, the right guarantees that voters can vote for the Member of Parliament of their choice.

[11] Relying notably on Haig¹⁰⁾, the majority in Opitz clarified that an election law should be interpreted in a generous way to give effect to the rights guaranteed by s. 3 of the Charter. The majority also noted that certain controls are put into place that facilitate the right to vote and prevent those who don't have that right from voting¹¹⁾. These controls are important because they preserve the integrity of the democratic process¹²⁾ and because the equitable and uniform application of these controls contribute to public confidence in the electoral process.

= The wording of s. 524 of the Elections Act =

[12] The Supreme Court focused on the wording of s. 524(1)(b). To them, the choice of the word “irrégularité” (“irregularities”), as opposed to “erreur” (“administrative error”), and the placement with the words “fraude, manoeuvre ou acte illégal” (“fraud or corrupt or illegal practices”), was an intentional choice by the legislature to prevent minor administrative errors from causing election annulments¹³⁾. The Court wrote:

[42] The word “irregularities” appears as part of the following phrase: “irregularities, fraud or corrupt or illegal practices”. These are words that speak to serious misconduct. To interpret “irregularity” as meaning any administrative error would mean reading it without regard to the related words. [43] The common thread between the words “irregularities, fraud or corrupt or illegal practices” is the seriousness of the conduct and its impact on the integrity of the electoral process. Fraud, corruption and illegal practices are serious. Where they occur, the electoral process will be corroded. In associating the word “irregularity” with those words, Parliament must have contemplated mistakes and administrative errors that are serious and capable of undermining the integrity of the electoral process. (See Cusimano v. Toronto (City), 2011 ONSC 7271, 287 O.A.C. 355, at para. 62.)

[13] A simple mistake that a reasonable well-informed citizen would not conclude undermines the integrity of the electoral process cannot be classified as an irregularity that justifies annulling an election. Integrity refers to the honesty of the electoral system. A mistake that doesn't question this integrity would in principle be excluded from the reasons to contest an election under s. 524 of the Elections Act.

[14] Again in Opitz, the Supreme Court introduced its reasons with this affirmation:

[2] At issue in this appeal are the principles to be applied when a federal election is challenged on the basis of “irregularities”. We are dealing here with a challenge based on administrative errors. There is no allegation of any fraud, corruption or illegal practices. Nor is there any suggestion of wrongdoing by any candidate or political party. Given the complexity of administering a federal election, the tens of thousands of election workers involved, many of whom have no on-the-job experience, and the short time frame for hiring and training them, it is inevitable that administrative mistakes will be made. If elections can be easily annulled on the basis of administrative errors, public confidence in the finality and legitimacy of election results will be eroded. Only irregularities that affect the result of the election and thereby undermine the integrity of the electoral process are grounds for overturning an election.

[Highlighting added by judge]

[15] Later, in paragraphs 23 and 51, the Court added:

[23] In deciding whether to annul an election, an important consideration is 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. […] [51] Having regard to the centrality of the constitutional right to vote, the enfranchising purpose of the Act , the language of s. 524, and the numerous democratic values engaged, we conclude that an “irregularit[y] … that affected the result” of an election is a breach of statutory procedure that has resulted in an individual voting who was not entitled to vote. Such breaches are serious because they are capable of undermining the integrity of the electoral process.

[Highlighting added by judge]

[16] Concluding this topic, the Court wrote:

[74] (…) An applicant must prove that a procedural safeguard designed to establish an elector's entitlement to vote was not respected. This is an “irregularity”. An applicant must then demonstrate that the irregularity “affected the result” of the election because an individual voted who was not entitled to do so. (…)

[17] General elections present logistical problems for Elections Canada and represent a source of innumerable technical problems which, unfortunately, can affect the possibility for a person to exercise their right to vote. As regrettable it is that these administrative errors can produce such a result, they should not lead to the conclusion that an election should be annuled. Human errors, committed in good faith without suspicion of dishonesty and which don't diminish the integrity of the election process at all, must give way to other values equally important for democracy including the speed of determining the winner, the finality of the result, the efficiency and cost of the election process, all of which must take into account that the right to vote guaranteed by s. 3 of the Charter is the underlying value.

[18] This reconciliation arises in the following paragraphs of Opitz:

[46] The practical realities of election administration are such that imperfections in the conduct of elections are inevitable. As recognized in Camsell v. Rabesca, [1987] N.W.T.R. 186 (S.C.), it is clear that “in every election, a fortiori those in urban ridings, with large numbers of polls, irregularities will virtually always occur in one form or another” (p. 198). A federal election is only possible with the work of tens of thousands of Canadians who are hired across the country for a period of a few days or, in many cases, a single 14-hour day. These workers perform many detailed tasks under difficult conditions. They are required to apply multiple rules in a setting that is unfamiliar. Because elections are not everyday occurrences, it is difficult to see how workers could get practical, on-the-job experience. [47] The provision for contesting elections in Part 20 of the Act serves to restore accuracy and reliability where it has been compromised. However, tension exists between allowing an application to contest an election on the basis of irregularities and the need for a prompt, final resolution of election outcomes. […]

[19] This interpretive exercise balances the objective of restoring accurate and reliable election results where they are compromised¹⁴⁾ with the object of obtaining definitive results quickly; this is why a contested election application proceeds without delay and in a summary way¹⁵⁾. One should also keep in mind that the administration of an election does not attempt to attain perfection but rather tries to produce a system that allows as many people who have the right to vote to participate in the election.

[20] Additionally, courts have underlined the dangers of widening the window through which elections can be contested. The annulment of an election constitutes a heavy decision with consequences for the public, reserved for the worst scenarios that necessitate it¹⁶⁾. The result is that those who have voted on a given election date lose their vote with no remedy if they don't participate in the new election. It is sufficient to consider those who pass away between the two election dates, who admittedly have no reason to complain, who are stripped of their political choice.

[21] Accuracy is not the single goal of the electoral system and the Elections Act, which is why courts cannot require absolute accuracy. The role of the court hearing a contested election application is to consider the integrity of the election with the overarching consideration of whether the election had an irregularity that affected the result of the election¹⁷⁾.

[22] The Supreme Court has not revisited these principles from Opitz and since then, Canadian courts have relied on them¹⁸⁾.

[23] I turn now to applying these principles to the facts of this application.

[24] In it written submissions, Elections Canada explains its own role and the role of its elections personnel. Some of these submissions are summarized below.

[25] Elections Caanda is an independent, non-partisan organization reporting to Parliament. Pursuant to s. 13 of the Elections Act, the CEC is appointed to the position for a ten year mandate by resolution of the House of Commons. The CEC is responsible for:

• (a) directing and overseeing election operations
• (b) ensuring that election officers act impartially and follow the Elections Act
• © giving instructions to election officers that he judges necessary to apply the Elections Act
• (d) exercising the powers and functions necessary to apply the Elections Act, except as expressly provided in the Act

[26] To implement the special voting rules in Part 11 of the Elections Act, the CEC can issue instructions that he or she considers necessary¹⁹⁾.

[27] The CEC appoints a special voting rules administrator. Danielle Duquette held this position for the April 28 general elections. In this position, she organized special ballot voting, as established in Part 11 of the Elections Act. In summary, this involved implementing administrative voting procedures, sending the materials necessary to assemble special ballot voting kits, training constituency election personnel, managing internal computer systems and coordinating with Canada Post.

[28] The CEC nominates a Returning Officer for each constituency who is responsible for the preparation and holding of elections in their constituency, reporting however to the CEC. In this application, Claude Martel held this position.

[29] Complying with directives from the CEC, the Returning Officer appoints election officers they deem necessary. The CEC can also authorize the Returning Officer to appoints staff necessary to apply the Elections Act. Recruited staff are appointed per a prescribed form and make a solemn declaration also according to a prescribed form. They are dismissed from their roles when their services are no longer required.

[30] On January 5, 2025, in preparation for the general election, Martel appointed Mario Sabourin (Sabourin) to the position of service point supervisor in the constituency of Terrebonne. Martel knew Sabourin well, having also hired him in January 2019 and Decemer 2020. In this position, Sabourin was responsible for special ballot voting services for electors living in the constituency.

[31] As previously set out, the postal code mistake relates to the special voting envelopes and before continuing, I will discuss this method of voting.

[32] First, the Elections Act does not contain the concept of voting by mail. The law instead provides a way to exercise the right to vote by special vote, which first appeared in the nineties²⁰⁾ but grew in popularity during the COVID-19 pandemic. Due to widespread health concerns, vote by mail became a favoured tool to express one's vote and encourage participation in democracy. The vote by mail method is in fact one type of special vote, which is found in the Elections Act Special Voting Rules Part 11 Division 4, in particular s. 232 which states:

232 (1) An elector may vote under this Division if his or her application for registration and special ballot is received by a returning officer in an electoral district or by the special voting rules administrator after the issue of the writs but before 6:00 p.m. on the 6th day before polling day.

[33] Sections 233, 236 and 237 prescribe how special voting is done. From these sections, we can see that a voter who wishes to exercise their right to vote in this way needs to complete an application. Their information is recorded and the voter must present proof of identity. The application can be completed online on the Elections Canada website.

[34] Importantly, once an application for special voting is approved by Elections Canada, the voter who has elected to this method of voting cannot vote by another method without obtaining permission from the special voting rules administrator²¹⁾.

[35] Schedule 1 Form 4 of the Elections Act prescribes the form of the special voting ballot. This ballot is given to the voter pursuant to s. 186 and 237(1).

[36] The special ballot voter receives a reference number that allows them to track the processing of their application, from when election authorities receive their application to when their ballot envelope is received by the office of the Returning Officer of their constituency²²⁾.

[37] Once their application is accepted, the voter who opts to vote by mail receives a voter's kit from Elections Canada. This kit contains: a special voting ballot, an interior envelope marked Envelope (A), an exterior envelope marked Envelope (B) and a postage-paid return envelope (C) on which an address label is placed for the office of the Returning Officer for the relevant constituency. The kit also contains voting instructions and obviously, an envelope containing the preceding items destined for the voter.

[38] When the voter receives their kit, they write the name of their chosen candidate on the special voting ballot. They sign the prescribed declaration, insert their ballot into Envelope (A) and then place this envelope into Envelope (B). Finally, the voter places everything into envelope (C) and mails envelope (C).

[39] Having described the special voting process, we can now understand the postal code mistake. The mistake is in the destination address labelled on envelope C, which Sabourin inputted onto certain special voting kits that he prepared.

[40] In his affidavit, Sabourin affirms that pre-assembling special voting kits is common in order to respond quickly to accepted special voting applications. The special voting ballots are not however added to the kit until a special voting application is accepted.

[41] It was during the pre-assembly process on March 26, 2025 when the mistake occurred. Sabourin, by error, inputted on the return labels an address whose last three digits corresponded to his own residence. More precisely, instead of inputting J6W 5S6, the postal code of the office of the Returning Officer on Rue Lévis in Terrebonne, he inputted J6W 4R9, his own postal code²³⁾. These labels were affixed on some envelopes C.

[42] Sabourin estimates that three to five sheets of labels were printed with this label. Each sheet contains 21 labels. Of course, he did not identify his mistake. He then asked his team to use two of labels per kit: one in the upper-left hand corner of the envelope containing the kit and the other in the center of envelope C. Sabourin estimates at least forty kits with this error were sent to local voters. This number remains an estimate.

[43] On March 29, 2025, the office of the Returning Office received a special voting application from a voter named Emmanuelle Bossé (Bossé)²⁴⁾. The office approved the application on the same day. The kit sent to Bossé was one of the kits with the mistake on envelope C. This kit was mailed to the voter on March 31, 2025.

[44] It wasn't until April 6, 2025 that Sabourin notices the mistake. He thought to remedy the problem immediately by printing new labels and affixing them to kits still in his possession. He gathered and destroyed as many kits affixed with an incorrect label from other office staff, but certain kits were locked in cabinets inaccessible to him.

[45] Sabourin did not inform Martel of the situation because the office of the Returning Office was still receiving completed kits with the incorrect postal code daily. In fact, Elections Canada's voter turnout system RÉVISE showed a turnout rate consistent with previous elections. Since this turnout rate was similar to previous elections' turnout rates, Sabourin did not consider the possible consequences of his mistakes.

[46] Martel was informed of the situation after the judicial recount by a journalist. He did not suspect any mistakes because the voter turnout rate for special voting ballots was similar to previous elections²⁵⁾.

* * * * * * * * * * * *

[47] Having set out the main facts, we now turn to the first disputed issue. Does the postal code mistake, combined with Sabourin's response, constitute an irregularity within the meaning of s. 524(1)(b) of the Elections Act?

[48] The Court finds that it does not.

[49] I reject the proposition that this is a case where a provision of the Elections Act has been violated. The mistake is located on an administrative document (mailing labels attached to envelopes) which election personnel use in their duties.

[50] It is evident that this mistake is one of inattention where Sabourin, either instinctually or reflexively, inputted his own postal code instead of that of the Returning Officer's. To be clear, even though the postal code were a problem, the civic address was inputted correctly. Thus the only mistake was in the last three digits of the postal code.

[51] Charles, the Conservative Party of Canada candidate, concedes that the mistake was unintentional in their written submissions²⁶⁾. This situation is light years away from one that would undermine the integrity of the electoral system as set out by the Supreme Court. There is no suggestion of fraud or corrupt or illegal practices, to use the terms from the Act. The mistake was not a conspiracy woven by malevolent actors. There were no serious actions²⁷⁾ nor were reprehensible, dishonest or criminal activities involved. In other words, the gravity of the mistake does not rise to that of fraud or corrupt or illegal practices.

[52] The same conclusion can be made about Sabourin's decisions after his discovery of the mistake on April 6. Sinclair-Desgagné calls the actions of the Elections Canada staff gross negligence. She pleads that Elections Canada staff ought have done more to recall kits with mistaken labels and report the mistake to their superiors. Duquette would have expected that Sabourin alert those above him of the mistake²⁸⁾. This would have been appropriate. The ideal course of action probably would have been to contact each person to whom defective kits were sent. Sabourin unfortunately did not think to do so²⁹⁾.

[53] However, it is important to put the sequence of events into context and consider them all together. Sabourin affirms that he was not very concerned about the mistake because defective envelopes were still being returned to him. There is no reason to doubt his good intentions. There is also evidence supporting his thinking; Auguste submits evidence from the Register³⁰⁾ that of all the ballots sent to local voters³¹⁾ before April 6, 2025, only Bossé's ballot was not returned on time. Even though Sabourin did know this information at the time, it corroborates his contention that envelopes were being returned despite the mistake.

[54] Additionally, other explanations exist for why a special voting envelope would not be returned to the Returning Officer's office: a voter could forget to vote or simply choose not to exercise their right to vote. Canada Post or another shipping service could also mishandle the envelope. This is not an exhaustive list of plausible scenarios³²⁾. In this way, Sabourin's reaction was not unreasonable even if he could have taken further precautions. Again, perfection is not required from the eletoral system³³⁾.

[55] Sinclair-Desgagné pleads that the degree of irregularity required varies based on the consequence it produces. The Court does not accept this argument. With respect, the level of a minor mistake does not change regardless of the gravity of the consequences. The consequence, that a single vote was lost, does not transform the mistake into an irregularity that undermines the integrity of the electoral system within the meaning of s. 524(1)(b) of the Elections Act.

[56] In summary, even considering the actions Sabourin chose to take - or not take -, the events leading to this application did not prevent Bossé from voting, as set out below, and do not qualify as irregularities within the meaning of s. 524(1)(b) of the Elections Act. Despite the consequences for Bossé, the postal code mistake and Sabourin's decisions are within the risks that arise during a general election³⁴⁾. This is an unfortunate and regrettable situation, which, to use the words of Camsell v. Rabesca³⁵⁾, cited with approval in Opitz³⁶⁾, virtually always occur in one form or another […].

[57] If citizens benefit from an electoral system which values efficient counting and definitive results in a country with hundreds of thousands voters exercising their democratic rights, or abstaining from the same, it is in spite of unfortunate human errors committed in good faith without any suspicion dishonesty which do not undermine at all the integrity of the election process.

[58] This conclusion does not mean that another human error could not apply in s. 524(1)(b) of the Elections Act. There are scenarios where a minor error could undermine the integrity of the electoral system. Sinclair-Desgagné has collated various decisions where courts have annulled elections for various reasons³⁷⁾. These examples illustrate a variety of situations where the integrity of the electoral system is undermined. However, the evidence in this application does not allow for such a conclusion.

[59] If it had been necessary to proceed to the second step of the Opitz test, the Court would have then have found that Bossé's missing vote had a real impact on the result of the election. Bossé voted for Sinclair-Desgagné and if it were counted, her votes watch match those of Auguste. The Court would then have examined the issue of the three ballots counted for Sinclair-Desgagné but contested by Auguste during the judicial recount and the potential application of the magic numbers test that the Supreme Court has adopted, albeit with reservation.

[60] However, it would not be useful to dive into these thorny problems because even if the mistake were an irregularity within the meaning of s. 524(1)(b) and affected the results of the election, it would have been unreasonable to annul the election.

[61] Three reasons support this conclusion.

[62] Auguste abandoned her dispute to three ballots because Sinclair-Desgagné had conceded the election. Pursuant to s. 286 of the Elections Act, Auguste now asks the Court to reject the ballots in question, which had been found in the garbage at the voting office. Sinclair-Desgagné and Charles contend that this section does not allow for such relief because Auguste abandoned her disputes during the judicial recount³⁸⁾.

[63] The Court finds that s. 286 does not allow the Court to make a finding as to the validity of a ballot. On the other hand, the evidence on the record is part of the factual matrix which the Court must review in the last step of the Opitz test during its exercise of judicial discretion.

[64] In particular, Part 12 of the Elections Act provides the procedure under which a candidate or their representative can object to a ballot. S. 286 provides:

PART 12
Counting Votes
Polling Stations
Counting the votes
283 (1) Immediately after the close of a polling station, an election officer who is assigned to the polling station shall count the votes in the presence of

• (a) another election officer who is assigned to the polling station; and
• (b) any candidates or their representatives who are present or, if no candidates or representatives are present, at least two electors.
  

[…]

Objections to ballots
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.
Decision of election officer
(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).