Ex-Liberal MP in Etobicoke Centre loses court challenge, Conservative Ted Opitz keeps seat.
Four of the Supreme Court judges restored 59 of the 79 votes that a
lower court judge threw out, preserving Opitz's narrow 2011 federal
election victory.
Former Liberal MP Borys Wrzesnewskyj had challenged the results based
on apparent voting irregularities at several polling stations on
election day and an Ontario court judge ruled in his favour last May.
Wrzesnewskyj lost to Opitz by 26 votes.
But the Supreme Court ruled Thursday that the entitlement to vote
cannot be annulled due to procedural errors and that there was a lack of
evidence that most of the discarded ballots came from voters who were
not qualified to vote.
Opitz immediately issued a statement thanking the court for its "carefully reasoned decision."
"As the court decision confirmed, a fair election took place, the
result was clear, was then confirmed on a recount and the result has now
been endorsed by the Supreme Court of Canada," the statement reads.
"Fifty-two thousand people in Etobicoke Centre followed the rules,
cast their ballots and today had their democratic decision upheld,"
Opitz said.
Wrzesnewskyj found a silver lining, despite losing his case.
"The next federal election will be run very differently," he said. "That means we're all ahead. We've all won."
Split decision on voting irregularities
The
majority of the judges has a set a high bar for anyone wanting to
contest an election result due to failures in record keeping.
They made it clear that that the onus is on the applicant to have
very solid proof – proof that might be difficult to establish – that
anything went wrong.
On the matter of missing registration certificates, the Supreme Court
found that it was up to Wrzesnewskyj to prove that they were missing
and the fact they cannot be found is not sufficient evidence.
They were satisfied that the certificates could have been "misplaced"
because the deputy returning officer said that she "thought" they had
been completed. If that sounds vague, the majority said, it is because
she was trying to recall something that happened eight months earlier.
The only irregularities the court would accept were instances where
there was no voter's signature on the registration certificate. The
signature is supposed to be the voter's statutory declaration that he or
she is over 18 and a Canadian citizen.
However, the court did allow registration certificates where an
elections official has signed instead of the voter, reasoning that the
official "would not put his signature on completely filled out
registration forms without being satisfied of the voters’ entitlement to
vote," so 10 votes were restored.
The majority also restored the ballots that had been negated due to
errors in vouching, which occurs when a voter has no ID and someone
swears as to their identity. There were no errors, said the court, only
errors in record keeping. Even though vouching paperwork was missing,
the court found that initials were enough to prove that the person doing
the vouching was a relative of the voter being vouched for.
The majority also dismissed Wrzesnewskyj's cross appeal, which
centred on the fact that many voters cast their ballots in the wrong
polling division.
The judges said definitively that, "Voting in the wrong polling
division had no effect on the result of the election … it is not
comparable to voting in the incorrect riding."
Chief justice dissented
What
is surprising is that three of the judges reached an opinion that is
almost diametrically opposed to the four in the majority.
Chief Justice Beverley McLachlin and Justices Louis LeBel and Morris
Fish found that 65 of the 79 ballots discarded by the lower court judge
should have been tossed.
The minority judges took a much harsher view of procedural errors.
However, the majority leaned hard towards the entitlement of every
qualified Canadian to vote.
The daunting logistics of running a federal election seemed to influence the majority judges.
"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," they wrote.
There will always be irregularities, was the conclusion.
The court also found that "annulling an election would disenfranchise
not only the persons whose votes were disqualified, but every elector
who voted in the riding."
In a statement, interim Liberal Leader Bob Rae thanked Wrzesnewskyj
for his "dedication to upholding the integrity of Canada’s electoral
system," calling his faith in democracy "nothing short of remarkable."
"In addition to the split ruling today, there still exists a
disturbing trend of irregularities and reports of election fraud
stemming from the 2011 general election," Rae said in the statement. "We
cannot forget that Canadians across the country were deprived of their
right to vote through a co-ordinated attack on our democracy.
"There is still much work to be done and many questions to be
answered in order to restore our confidence in Canada's electoral
institutions," he said.
Read Kady O'Malley's liveblog from the Supreme Court:
