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Top court wrestles with overturned election case

|Written By Randall Palmer and David Ljunggren (Reuters)

The Supreme Court of Canada wrestled with how easily an election can be overturned because of clerical errors on Tuesday in a case brought by a Liberal candidate who lost a federal election last year by 26 votes.

Borys Wrzesnewskyj, in suit, speaks to journalists during a break in hearings at the Supreme Court Tuesday. (Photo: Chris Wattie/Reuters)

The court’s decision on the race in Etobicoke Centre, a Toronto riding, between Conservative Ted Opitz and Liberal Borys Wrzesnewskyj, will not jeopardize the Conservative government’s hold on power, because it has a comfortable majority in Parliament.

But it was set against the backdrop of separate court challenges to results in seven other ridings where Conservatives are accused of seeking to suppress the votes of non-Conservatives, charges the Conservatives deny.

In Tuesday’s case, lawyer Kent Thomson, representing Opitz, argued for the top court to overturn an Ontario Superior Court decision that invalidated his slim May 2011 election victory and ordered a by-election.

Wrzesnewskyj had challenged the results, accusing Elections Canada of irregularities including not being able to produce registration certificates to back up the right to vote.

“We know that people that showed up with no ID were allowed to vote. That speaks to the integrity of the system here,” Wrzesnewskyj told reporters in the court’s foyer. “How can we have confidence in the laws enacted by parliamentarians when we can’t have confidence in who it was that actually was elected?”

There were no allegations of intentional wrongdoing.

Opitz argued that 52,000 people voted in his district, and it would not be right to overturn the results just because of some clerical errors by what he called honest and well-meaning Elections Canada officials.

“Everybody here’s made a mistake,” he told reporters .

In May, an Ontario judge invalidated Opitz’s election, disallowing 79 votes, including 52 that he disqualified because he could not find the voters were registered properly. Elections Canada subsequently found 44 of those 52 were in fact properly on its national voters registry.

Both sides tried to convince the seven judges hearing Tuesday’s case the soundness of the electoral system was at stake.

“Voters will recoil against [the system], saying . . .‘I lost my right to vote because some poll clerk didn’t write my name in a book.’ That can’t be right,” said Thomson.

Wrzesnewskyj’s counsel Gavin Tighe countered: “The rules provide integrity to the system, because the right to vote must be to vote in a fair system. . . . The right to vote in an election that is conducted unfairly is a right with no substance to it at all.”

While Chief Justice Beverly McLachlin showed great skepticism about Opitz’s position, three justices — Rosalie Abella, Marshall Rothstein, and Michael Moldaver — repeatedly questioned the idea of overturning an election because of a strict application of rules without any proof of wrongdoing.

“How can the process have integrity if a person who is qualified to vote is not allowed to vote for reasons that don’t apply to anything except the strict language?” asked Abella.

McLachlin said Canada had adopted a system of very strict record-keeping precisely because of electoral disputes that plague many countries.

“If this court should let that record-keeping slide, what will we be doing? We will excuse too many errors. What will that do to the overall Canadian electoral system?” she asked.

The court, which broke its summer recess to hear the case, reserved its decision but is expected to expedite its verdict.


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