Supreme Court to hear appeal over disputed riding

OTTAWA — The Supreme Court of Canada will hear Tuesday the first appeal under the Canada Elections Act ever brought all the way to the top court, the outcome of which will set a precedent for future contested election cases.

This hearing, between Conservative MP Ted Opitz and former Liberal MP Borys Wrzesnewskyj, will determine once and for all whether the May 2011 federal election results for the Toronto riding of Etobicoke Centre will be declared null and void.

But the implications of the decision will reach well beyond those Toronto-area voters and candidates.

What’s at issue in this appeal is under what circumstances it’s appropriate to require a byelection when something has gone amiss in the conduct of the election, but nobody is necessarily at fault, said Allison Thornton, a lawyer representing the Canadian Civil Liberties Association, which is acting as an intervener in the case.

The question for the court, Thornton said, is going to be what is meant by “irregularities” under a section of the Elections Act that allows for a byelection if there are “irregularities, fraud or corrupt or illegal practices that affected the result of the election.”

“It’s important to get this decision right,” Thornton said.

“People do look to Canada, and to our constitution and the way we conduct our democracy, so when what the court ultimately determines is our process and what standards have to be there — it’s important.”

In the 2011 election, Opitz originally won by a 26-vote margin. But his election was overturned by Justice Thomas Lederer of the Ontario Superior Court on May 18 this year.

Lederer ruled that Opitz’s election was invalid after Wrzesnewskyj succeeded in proving that at least 79 votes were counted that should not have been because of irregularities — in some cases because the registration certificates that allowed voters to mark a ballot could not be found.

Both Opitz, who is trying to overturn the results of that appeal, and Wrzesnewskyj, who argues many more than 79 of the votes contained irregularities, appealed the decision. This means the two politicians are both appellants and respondents in the same case.

Late last week, CBC reported that Elections Canada threw a potential wrench in Wrzesnewskyj’s case when it filed new evidence that 44 of the voters who were disqualified in the last court hearing are on the National Register of Electors.

This is a significant development, and the Conservative party is hopeful that the top court will review this relevant evidence, Conservative party spokesman Fred DeLorey said in an email to Postmedia News.

“Wrzesnewskyj called for an investigation by Elections Canada into what happened in Etobicoke Centre. Marc Mayrand and Elections Canada have investigated and found that the majority of the questionable voters in Etobicoke Centre according to Judge Lederer’s decision were in fact qualified voters,” DeLorey said.

“Now that Elections Canada has found the voters were qualified, Mr. Wrzesnewskyj is trying to block them from presenting this relevant evidence to the courts. This is surprising and disappointing given he himself called on Elections Canada to get to the bottom of this.”

From the perspective of the Canadian Civil Liberties Association, the case is a matter of protecting the right to vote. A Canadian has the right to vote if they live in the riding where the vote is taking place, and if he or she is a Canadian citizen, Thornton said.

To make it too easy to invalidate the vote would fail to respect the right to vote, Thornton said. On the other hand, she added, if there’s no recourse and if Canadians can’t have confidence in the outcome of the election, then that calls into question whether those rights are being respected.