Skip to main content

Borys Wrzesnewskyj talks to reporters outside court in Toronto Apr. 23, 2012. Wrzesnewskyj had requested the court to throw out the result of the May election in Etobicoke Centre due to serious voting irregularities.Moe Doiron/The Globe and Mail

Parties are already preparing for a possible federal by-election in an Ontario riding after a defeated Liberal MP successfully challenged Elections Canada's handling of local balloting during last year's federal vote.

In a rare decision, an Ontario Superior Court judge on Friday threw out the results of the 2011 general election in the Toronto-area riding of Etobicoke-Centre after he found that officials failed to ensure 79 voters were properly registered or cleared to cast a ballot.

Within hours of Friday's court decision, residents of the Toronto riding received automated robocalls asking how they would vote in a possible ballot. A recipient could not remember whether the message identified any party as the source of the call.

One Etobicoke resident told The Globe and Mail they received an automated call about 6:30 pm ET asking them how they'd vote.

Both the Conservative and Liberal parties said they didn't authorize such calls.

The ruling is a victory for former Etobicoke-Centre Liberal MP Borys Wrzesnewskyj, who had mounted a legal challenge of the race he'd lost by only 26 votes on May 2 last year.

The decision opens the door to a by-election should the ruling withstand a possible Supreme Court appeal.

The Harper Tories say they're still studying the decision but risk looking scared to face voters if they appeal.

The decision is black eye for Elections Canada, which is also charged with investigating robocall fraud in Guelph, Ont., where thousands of non-Conservative voters on May 2, 2011, received calls directing them to the wrong polling station.

The Tories have eight calendar days to appeal Friday's ruling to the Supreme Court, which, if necessary, would fast-track a decision.

If Mr. Wrzesnewskyj's court victory stands, the Harper government would have six months to call a by-election.

The last time a court overturned a federal by-election result was 1990 in the Toronto-area riding of York North.

In this case, the math was in Mr. Wrzesnewskyj's favour.

Ontario Superior Court judge Thomas Lederer ruled that Etobicoke-Centre's election results had to be thrown out because the number of votes he set aside exceeded the margin of victory for Tory candidate Ted Opitz.

"We need to be assured that those who vote are qualified to do so. We need to be confident that those who receive a ballot have been identified as persons who are on the official list of electors or who have registered," Judge Lederer wrote.

"If we give up these foundations of our electoral system, we are risking a loss of confidence in our elections and in our government."

He said he didn't consider this a case of fraud. "There is no suggestion that anyone involved attempted to subvert or undermine the conduction of this election."

Conservative Party spokesman Fred DeLorey called the decision disappointing.

"Fifty two thousand people in Etobicoke-Centre followed the rules, cast their ballots and today had their democratic decision thrown into doubt," he said.

"Ted Opitz will continue working hard on behalf of his constituents."

Mr. DeLorey pointed out the shortcomings identified by the ruling are the fault of Elections Canada, not the Conservative Party.

"The judge has found problems with the way that Elections Canada ran the election in this riding," Mr. DeLorey said.

"As the judge took care to point out in the decision, Ted Opitz and the Conservative campaign team followed the rules."

NDP House Leader Nathan Cullen urged the Tories to skip a Supreme Court appeal and instead let voters decide.

"Judges don't make these rulings casually. It would be a totally cynical move and also show they're afraid to face the voters in Etobicoke-Centre," he said.

"If they do, they're going to be sending all the wrong signals to Canadians and voters in this riding."

Mr. Wrzesnewskyj cheered the court ruling from Ukraine, where he is visiting.

"Democracy cannot flourish – or even exist – where there is doubt respecting the integrity of the electoral process," he said.

"This judgment offers not only the residents of Etobicoke-Centre a just remedy through a new, free and fair election – but perhaps more importantly, an opportunity for all political parties and elections authorities to improve and ensure best practices in every electoral contest going forward."