Provinces keep close watch on election appeal decision
OTTAWA — As the Supreme Court of Canada sits down to hear its first appeal under the Canada Elections Act Tuesday, counsel for two provincial chief electoral officers will be there to see that the bar for what defines an “irregularity” under the Act isn’t set too low.
The Chief Electoral Officers of British Columbia and Alberta are intervening in the hearing between Conservative MP Ted Opitz and former Liberal MP Borys Wrzesnewskyj.
The outcome of the hearing will not only determine whether the May 2011 federal election results for the Toronto riding of Etobicoke Centre will be declared null and void and set a precedent for all future contested cases under the Canada Elections Act, but also will heavily influence how lower courts interpret the provisions in place to deal with contested provincial election cases.
While just the B.C. and Alberta electoral officers are acting as interveners in the case, every province has somewhat similar election legislation, said Harold Turnham, the lawyer representing B.C. chief electoral officer Keith Archer.
And how the top court chooses to interpret “irregularities” could have wide-ranging impacts for electoral systems that have the potential for human error.
“No election can be per- fect,” Turnham said. “If a bar is set too low on what is an irregularity that affects an outcome, then there is going to be a challenge in almost every close vote.”
In the 2011 federal election, Opitz originally won by a 26-vote margin.
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 re- sults of that appeal, and Wrzesnewskyj, who argues many more than 79 of the votes contained irregularities, appealed the decision.
The question for the court is going to be what is meant by “irregularities” under a section of the Canada Elections Act that allows for a byelection if there are “irregularities, fraud or corrupt or illegal practices that affected the result of the election.”
The word ‘irregularities’ is thought to be too broad and encompasses too many mistakes, Turnham said.
“One of the points for the court to consider is whether those other three serioussounding words should tell the court that, by irregularity, we don’t just mean an uncrossed ‘T’,” Turnham said.