Election appeal now in judges’ hands
OTTAWA — The right to vote and the integrity of the electoral system were central themes in the Supreme Court of Canada appeal Tuesday between a Conservative MP and a former Liberal MP who are sparring over their Toronto riding’s results in the most recent federal election.
The decision on the appeal under the Canada Elections Act, which is expected to set a precedent for future contested-election cases, is in the hands of the court after it announced it would reserve judgment.
The court ruling in the case 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.
After the hearing, Optiz said that, while clerical errors were made in the voting, elections are not fool proof.
“It happens. Everybody here has made a mistake. There are occasions where people make those mistakes,” Opitz told reporters in the main hall of the Supreme Court. “Those are long days. There are a lot of decent people out there who are working very hard. They got the training. Sometimes they get distracted — who knows?”
At issue is whether the constitutional right to vote can be negated by polling errors by Elections Canada, said Kent Thomson, who represents Opitz.
The answer, Thomson argued, must be no.
In his argument, Thomson went through all the disputed votes poll by poll, pointing out issues such as lost certificates and election officials signing the registration certificates instead of the voters. These mistakes are not enough to overturn the results of a federal election, he concluded.
Gavin Tighe, who represented Wrzesnewskyj, argued the right to vote must be within a fair system with integrity.
This case is about restoring people’s confidence in the integrity of the electoral system, Wrzesnewskyj added outside the courtroom.
“How can we have confidence in the laws enacted by parliamentarians when we don’t have confidence in who it was who was actually elected who represents the will of the electorate?” Wrzesnewskyj said outside the courtroom.
Should he win his case, it’s crucial that Prime Minister Stephen Harper act immediately and call a byelection, Wrzesnewskyj said.
“If he were to take another six months, I think it’s a terrible precedent for our democratic process.”
Before arguments began in the hearing, the court heard from David Di Paolo on behalf of Elections Canada.
He said 52 voter ballots were set aside due to missing registration certificates, and brought up new evidence that 44 of those voters were in fact on the National Register of Electors. Thomas Barlow, counsel for Ted Opitz, said this evidence is highly relevant because it proves Canadian citizenship.
The court later reserved its judgment on the motion of whether or not to include the evidence.
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 in May.
Lederer ruled Opitz’s election was invalid after Wrzesnewskyj succeeded in proving 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, Elections Canada threw a potential wrench in Wrzesnewskyj’s case when it filed new evi- dence that 44 of the voters who were disqualified in the last court hearing are on the National Register of Electors — a continually updated database of Canadians who are registered to vote in federal elections and referendums.
If the court upholds Lederer’s decision, Opitz will lose his seat and Harper will have six months to call a byelection.
The court proceeding was unusual for the top court, which normally suspends hearings for the summer so the justices can take a threemonth break.
But the top court made an exception to expedite the case.
It’s also expected that a decision will be handed down faster than usual. An average decision on a civil case in the Supreme Court takes eight months.