A Supreme Court decision that allows a Toronto MP to keep his narrowly won seat is putting pressure on Elections Canada to clean up its act after voting-day clerical errors spawned a major legal battle.
In a 4-3 split decision, Canada’s highest court upheld the 2011 federal election victory of Conservative MP Ted Opitz, who won the Etobicoke Centre riding by a mere 26 votes.
Thursday’s decision, which reflects the Supreme Court’s historic deference to Parliament and electors, sets a rigorous standard for judges in deciding whether to invalidate votes or throw out results.
Defeated Liberal incumbent Borys Wrzesnewskyj mounted a legal challenge to the election. In May, 2012, an Ontario court tossed out the result after concluding that 79 voters cast ballots without sufficient documented evidence that they were properly cleared to do so. Most of the contested ballots came under scrutiny because Elections Canada officials lost voter registration certificates or failed to document properly how they established people’s identities.
The Supreme Court justices decided the Conservative victory stands, saying that most of the rejected ballots should be restored because there’s no evidence the voters were not entitled to participate. The court frowned on the idea of rejecting the ballots because of an administrative error, but cautioned Elections Canada not to grow complacent.
“In recognizing that mistakes are inevitable, this court does not condone any relaxation of training and procedure. The Commissioner of Canada Elections ... has an obligation to ensure, as far as reasonably possible, that procedures are followed,” the decision said. “Failure to live up to this mandate would shake the public’s confidence in the election system.”
This is the first time the Supreme Court has ruled on an election outcome since the Second World War.
The ruling leaves Mr. Opitz with a very slight margin of victory. The MP cheered the decision on Thursday.
“Fifty-two thousand people in Etobicoke Centre followed the rules, cast their ballots and today had their democratic decision upheld,” Mr. Opitz said.
Two of the four justices who upheld Mr. Opitz’s victory were appointed by Prime Minister Stephen Harper, and the other two were put on the bench by Liberal prime ministers.
Elections Canada declined to comment on the decision, but a spokeswoman said the agency, which is conducting three federal by-elections on Nov. 26, is tightening up how it operates balloting since the Etobicoke Centre controversy.
“We’re going to be refining election worker training to put increased emphasis on compliance with standards and procedures at the polls and we’re going to be having election workers do periodic checks during the day so they ensure the required documents are all present and accounted for,” the spokeswoman said.
During a general election, Elections Canada relies on more than 200,000 temporary workers.
Mr. Wrzesnewskyj accepted the court’s decision, but refused to concede the Tories won Etobicoke Centre fairly. The former MP raised allegations of dirty tricks during the campaign – accusations he’s made before, but that did not form part of his legal challenge.
The court’s majority decision acknowledged how serious it would be to nullify a vote, saying it could trigger more challenges of election results.
The majority decision embraced a two-part test for deciding whether votes should be set aside, saying someone should not be disenfranchised by polling clerk mistakes. “This is especially undesirable when the irregularity is outside of the voter’s control and is caused solely by the error of an election official,” the court said.
The court said a serious irregularity arises when a voter does not meet the conditions designed to establish they are entitled to vote. If an irregularity is found, then whomever is appealing an election must also demonstrate that this irregularity affected the results: that someone who was not entitled to vote, in fact, did so.
The four justices who formed the majority opinion are Marie Deschamps, Rosalie Abella, Marshall Rothstein and Michael Moldaver.
The ruling is a big blow for Mr. Wrzesnewskyj, not only because he lost, but also because he spent hundreds of thousands of dollars of his own money fighting this case. As of July, 2012, he had spent upwards of $300,000. He declined to reveal the full bill on Thursday.