Defeated Liberal takes rare court action to contest election results

OTTAWA – A defeated Liberal candidate is contesting the results of the May 2, 2011 election in an Ontario court alleging that there were irregularities at ten polls in the riding of Etobicoke Centre.

Earlier this year, Borys Wrzesnewskyj filed what is called a contested election application in a bid to re-examine the race that saw him lose to Conservative candidate Ted Opitz by just 26 votes, a margin confirmed by a judicial recount.

The use of such an application is extremely rare, but in the past it has lead to results being overturned and byelections being held.

Wrzesnewskyj, who is a former international elections observer, said he started receiving “shocking” allegations about voter suppression and irregularities from voters and decided to act.

“When you tally up all the allegations in Etobicoke Centre we don’t know, is the individual that carries the title of MP, was he the legitimate representative of the will of the people?” Wrzesnewskyj said.

Wrzesnewskyj said there is a court order prohibiting him to talk about the details of the accusations, but he expects they will come out when the application is heard on April 23.

“There was no way I could stand aside and not proceed with an action …” he said.

Separate allegations of deceitful campaigning have been making waves across the country recently as Canadians learned Elections Canada and the RCMP are investigating a series of robocalls targeted at Liberal-friendly voters in Guelph. The calls sent voters to non-existent or wrong polling stations.

Since news of the investigation broke last week, the list of candidates claiming to have been targeted by robocalls or other fraudulent electoral tactics has grown to over 40.

Wrzesnewskyj’s application may examine the actions of Elections Canada representatives and other individuals at the polling stations in question.

The Attorney General of Canada, Chief Electoral Officer Marc Mayrand, Etobicoke-Centre Returning Officer Allan Sperling and Opitz are the respondents participating in the application. The three other candidates are named as respondents but have declined to participate.

Opitz’s lawyer Tom Barlow of Fasken Martineau said his client was named simply because he was a candidate.

“The application does not rely upon any allegations or irregularities of any persons involved or associated with the campaign for Opitz or the Conservative Party,” he said.

Elections Canada said it would not comment on matters currently before the courts.

Jack Siegel, an expert in election law at Blaney McMurtry law firm, said the use of a contested election application is extremely rare.

To his knowledge, it was last used in 1988 to decide a dispute between Liberal candidate Maurizio Bevilacqua and Progressive Conservative candidate Michael O’Brien who ran in the riding of York North.

O’Brien took the seat as MP after a judicial recount confirmed his win by a margin of 99 votes. Bevilacqua appealed the recount and was subsequently declared the winner by 77 votes. O’Brien then filed an election petition based on errors made by Elections Canada. The petition found the election was void and a by-election was called. Bevilacqua was declared the winner.

Siegel said triggering a byelection would require Wrzesnewskyj to prove the number of ballots in question exceeds the margin between he and Opitz.

“They’ve got to prove 26 or more mistakes effectively, or, if they can bring robocalls at this stage, that they show a total of 26 mistakes or people that were misled and didn’t get to vote,” he said.

The loser of the application automatically has an appeal before the Supreme Court of Canada.

A byelection would be a bonus according to Wrzesnewskyj who sees the move more about defending democracy.

“One person, one vote is the most basic principle of our electoral system and it is the most fundamental right that every Canadian has the right to vote.

When individuals take part in suppression or addition it undermines votes and it undermines our process in our whole democratic process,” he said, adding that this application will make it clear such actions will not be tolerated.