On May 18, Justice Thomas Lederer, of the Ontario Superior Court, overturned Optiz's election, which mean he is in a legal grey zone until the appeal is heard.
According to the Elections Act, the court "shall hear the appeal without delay and in a summary manner," although it is up to the red-robed justices of our top court to decide what that means.
It seems to be in Opitz's interest to delay that decision as long as possible, since he has a good job until that moment, and might not after the justices rule.
Justice Lederer overturned the election results because defeated Liberal incumbent Borys Wrzesnewskyj spent $250,000 of his own money challenging the election in Etobicoke Centre under a section of the Elections Act that allows for a byelection if there are "irregularities, fraud or corrupt or illegal practices that affected the result of the election."
Lederer pointed out in his ruling that "there was no suggestion of any wrongdoing on the part of either the applicant or the respondent," and in his release Monday announcing the appeal, Opitz wrote that "the court made it very clear that there was no wrongdoing by any candidate" — which isn't quite the same thing.
To win their case, Wrzesnewskyj's lawyers didn't allege wrongdoing. They convinced the judge that there were enough bad votes counted to make up for Opitz's 26-vote margin of victory.
Looking at only 10 of the 260 polls in the riding, they convinced the judge that 79 votes should not have been counted, many of them because the registration certificates that allowed voters to mark a ballot could not be found.
A poll conducted on the evening of the court's decision suggested that Wrzesnewskyj has a 10-point lead over Opitz in the riding, which would make for a comfortable margin of victory if the appeal fails and a byelection is called.
The Liberals feel good about that prospect, given that Wrzesnewskyj successfully went to bat for democracy, and governing parties often struggle to motivate their voters during byelections.
But the NDP is doing better than the Liberals these days, although prosperous Etobicoke Centre is not fertile ground for them; the more time they have to organize, the better they likely will do, which could help Opitz.
So, even if they lose, it probably was wise for the Tories to appeal, and we'll get a useful new ruling from the top court on the conduct of our elections.
A few blocks away, at the federal court, the Council of Canadians is seeking to overturn the results in seven other ridings across the country — a case that would be much more dangerous to the government, if it succeeds.
The left-leaning activist group has filed affidavits from voters who say they received deceptive telephone calls, seemingly designed to discourage opposition supporters from voting.
Conservative lawyer Arthur Hamilton has filed two motions asking the federal court to throw out the case, the most recent using an obscure legal concept — champerty and maintenance — seemingly as an excuse to file a 750-page attack on the group, calling them left-wing malcontents driven by hatred of the prime minister.
That seems unlikely to succeed — although it likely was fun for the Tories — but the council's case looks like an uphill battle, since the case law concerning contested elections tends to involve votes in the ballot box, not votes that might not be there because someone got a phone call.
The court would be venturing into uncharted legal territory. If the evidence is strong enough, the case could overturn more election results, particularly in Nipissing-Timiskaming, where Liberal Anthony Rota lost by just 18 votes.
But the evidence is so far thin, and only an Elections Canada investigation would be able to show that there was enough telephonic wrongdoing to have "affected the result of the election," as the act requires.
And Elections Canada may not ever produce that evidence, if it exists.
The alleged bad votes In Etobicoke Centre were only uncovered because Wrzesnewskyj has deep pockets. Like any bureaucratic organization, Elections Canada may not be keen to uncover problems with how it performs its duties.
And, as former Conservative prime minister R.B. Bennett said in 1938, political operatives will get up to mischief, and keep that mischief from their masters:
"There has grown up, not limited entirely to one party . . . a class of men whose one purpose in life is to flourish at election times and see how much they can get out of the candidate and the use they can put it to for the purpose of prostituting the electorate. You have this type of person dealing with a situation about which he does not want the candidate to know anything, and about which the candidate does not want to know anything."
Original Article
Source: canada.com
Author: Stephen Maher
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