OTTAWA – Conservative MP Ted Opitz will remain Member of Parliament for Etobicoke Centre after the Supreme Court of Canada ruled not enough irregular votes were cast in the Toronto riding during the last federal election to overturn the results.
The 4:3 decision overturns a ruling of the Ontario Superior Court that declared the election null and void, after Optiz’s Liberal challenger Borys Wrzesnewskyj challenged the results claiming there were problems in at least 10 polls.
Opitz won the riding by a mere 26 votes on May 2, 2011, but the Ontario court found that 79 ballots cast in the election should be set aside due to administrative errors made by Elections Canada officials.
The Supreme Court of Canada restored 59 of those 79 votes – leaving Wrzesnewskyj six votes shy of the “magic number” needed to overturn the results.
The court found that minor administrative errors should not trump someone’s right to vote – and in doing do set a high bar for overturning election results.
“The goal of accessibility can only be achieved if we are prepared to accept some degree of uncertainty that all who voted were entitled to do so,” the decision reads.
The court also acknowledged the serious consequences of overturning an election in its decision, saying that it would disenfranchise all voters in the election and could increase litigation.
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Opitz walked into the House of Commons on Thursday to a standing ovation from Conservative colleagues.
Reacting to the court’s decision, Opitz said he is glad the court emphasized the right of voters in Etobicoke Centre to cast a ballot.
“Fifty-two thousand people in Etobicoke Centre followed the rules, cast their ballots and today had their democratic decision upheld,” he said, before leaving for Ukraine where he will serve as an observer in the country’s elections.
Wrzesnewskyj stood by his claim something fishy went on in his riding at the hands of Conservative political operatives.
“We know that there are many things that happened that shouldn’t have happened,” he said, adding that he will run in the next federal election. “When you do a careful analysis of this it is unnerving.”
Opitz dismissed those claims as nonsense, saying: “I ran a fair, honest, honourable campaign. I hold my head up high and I simply outworked him at the end of the day. I won an election and he lost.”
The case was focused on administrative errors and did not allege any instances of fraud, illegal practices or any wrongdoing by either campaign.
Despite his legal loss, Wrzesnewskyj said Canadians won.
“The next federal election will be run very differently and that means democracy wins and that means every Canadian has won,” he said.
Gavin Tighe, the lawyer who represented Wrzesnewskyj, wasn’t as optimistic, suggesting the decision would give Elections Canada a license to make mistakes.
“The question I think Canadians have to ask themselves is: are they prepared to accept uncertainty that the election was conducted properly?,” he said.
Tighe said if voters don’t follow the procedural rules they are not entitled to vote.
But former chief electoral officer Jean-Pierre Kingsley said the decision will motivate Elections Canada to do better.
“The electoral officials will have to get on their game at the local level,” he said.
In the legal proceedings, Wrzesnewskyj alleged the ballots in question did not follow the rules when it came to registering and/or identifying voters.
But the justices rejected a strict interpretation of the law that would require every registration and identification process to be perfect, arguing it could nullify votes of people who had the right to vote.
The decision also makes it clear the onus of proof rests on anyone challenging the result to provided evidence someone who was not entitled to vote cast a ballot which affected the result of the election.
Wrzesnewskyj did not provide such evidence, according to the decision. The justices argue just because a registration certificate was missing after the election didn’t mean it never existed.
The minority judges, who included Chief Justice Beverley McLachlin, sought a stricter application of procedural rules and took issue with the majority interpretation of whether the lower court reversed the onus of proof.
With his legal battle over, Wrzesnewskyj is calling on Parliament to update the Canada Elections Act.
“It’s a quaint assumption today that everyone does the right thing. Unfortunately not everyone conducts themself in a proper way,” he said.
Liberal leader Bob Rae supported Wrzesnewskyj’s call for reform, while expressing disappointment with the court’s decision.
“It points the way for all of us to look at the Elections Act to see what we need to do to bring the act well into the 21st century to make sure it is dealing with the particular problems this case points to,” Rae said.
Walking out of the House of Commons with Opitz on Thursday, Prime Minister Stephen Harper said he is open to looking at the law.
“We promised to look at some reforms to our election laws but in this case it was the important thing is that it was the voters who made the decision and that is the way democracy is supposed to work,” he said.
Elections Canada said it is still studying the decision, but in light of what happened in Etobicoke Centre will be refining training and doing periodic checks during the upcoming byelections on Nov. 26.
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