Both sides in the unprecedented appeal—the Supreme Court has no record of hearing an appeal up to now of an election result that was voided by a provincial Superior Court—would have to agree before the Supreme Court could suspend statutory timetables giving Conservative MP Ted Opitz (Etobicoke Centre, Ont.) 12 weeks to file appeal arguments, a prominent Ottawa lawyer and the Supreme Court’s legal officer told The Hill Times on Tuesday.
The Supreme Court has only two weeks of hearings, beginning the week of June 4, before its summer recess, said the court’s legal officer Wytold Tymowski. That would leave just over two or three weeks for both sides to put together detailed legal briefs for an expedited Supreme Court process the electoral law calls for.
With the court’s fall hearings starting the week of Oct. 9, even a short Supreme Court hearing of the appeal and a speedy decision would mean a November byelection at the earliest if the Supreme Court confirms the ruling by Ontario Superior Court Judge Thomas Lederer.
Mr. Opitz (Etobicoke Centre, Ont.) was not commenting Monday, following one brief statement he made last Friday after the ruling by Judge Lederer, and an aide referred questions to Conservative Party communications director Fred DeLorey, who said the party was still going through the 40-page judgment.
“We are reviewing the decision,” Mr. DeLorey replied in an email Tuesday when asked if the party plans to appeal.
Mr. Opitz and the Conservative party have until next Monday to file notification of an appeal at the Supreme Court.
The former Liberal MP Borys Wrzesnewskyj, who lost by only 26 votes to Mr. Opitz last year, indicated in a television interview on Tuesday that Prime Minister Stephen Harper (Calgary Southwest, Alta.) and his party should accept Judge Lederer’s decision and call a byelection as soon as possible.
“The next step is the Prime Minister, the Prime Minister has an opportunity to look prime ministerial,” Mr. Wrzesnewskyj told Evan Solomon on CBC’s Power & Politics.
The question of an appeal could also affect chances that Mr. Opitz has of retaining his office as a Member of Parliament in the short term. Under the Elections Act, Judge Lederer would formally notify Commons Speaker Andrew Scheer (Regina-Qu’Appelle, Sask.) that the Etobicoke-Centre election has been voided. Mr. Scheer would then formally notify Chief Electoral Officer Marc Mayrand, who was one of the participants Mr. Wrzesnewskyj took to court, of the vacancy. But if Mr. Opitz appeals, the House Speaker could have the authority to await the result of that legal action before declaring a vacancy.
The six months Mr. Harper has to set a date for a byelection in the event of a vacancy would begin then, if Mr. Opitz were to lose his appeal.
Mr. Opitz, a rookie MP who won the riding last May with 41.2 per cent, is considered an up-and-comer in the House. He was voted one of the most effective government backbenchers in Question Period, along with Conservative MPs Dean Del Mastro (Peterborough, Ont.) and Michelle Rempel (Calgary Centre-North, Alta.), in The Hill Times’20th Annual Politically Savvy Survey, conducted by Angus Reid Public Opinion.
Mr. Wrzesnewskyj, who spent a reported $200,000 on legal fees to challenge the election results, alleged on the same CBC program that his riding was also targeted by vote-suppression tactics. Mr. Wrzesnewskyj did not disclose details, but Elections Canada began investigations soon after the May 2 election into allegations Liberal supporters received fraudulent phone calls purporting to be Elections Canada alerts of poll site changes.
In a development related to the vote-suppression allegations, the Conservative Party on Tuesday asked the Federal Court to dismiss an attempt by the Council of Canadians to have the 2011 results in seven electoral districts set aside because of alleged fraud and vote suppression. The Conservatives said the allegations are vague, and the group filed its claim well after a 30-day deadline set by the Elections Act.
Judge Lederer emphasized there were no allegations of wrongdoing in the irregularities he reviewed, but said the integrity of Canada’s electoral system rests on recorded assurances that those who cast ballots are qualified electors.
“True clerical errors … do not matter,” Judge Lederer wrote in his decision. “Some oversights, such as a failure to check off the means by which a voter identified himself or herself, can be accepted, when considered in context of the overall requirements to register [to vote].”
“On the other hand, there are requirements of the process which are fundamental,” he wrote. “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. If we give up these foundations of our electoral system, we are risking a loss of confidence in our elections and in our government.”
Judge Lederer set aside all of the results in Etobicoke-Centre after finding the voter registration and vouching records for 79 voters did not contain proof they were eligible to cast ballots in their polling divisions. In some cases, Judge Lederer found inadequate proof of citizenship, or residency in the electoral district.
The Canada Elections Act provision calls for a court to overturn election results in any electoral district when the results are challenged over allegations of voting irregularities, fraud or corruption and the number of voided ballots is more than the difference of votes between the winning candidate and the candidate who placed second.
The last time a court voided the results in an electoral district after a general election was in 1988, in the Toronto riding of North York. The Progressive Conservative candidate, Michael O’Brien, sought a recount after losing to Liberal candidate Maurizio Bevilacqua by only 66 votes. The recount reversed the narrow results, and Mr. O’Brien was declared the winning candidate.
But Mr. Bevilacqua appealed the decision, forcing a second recount that gave him the lead again with a 77-vote plurality. Mr. O’Brien challenged the finding, this time over claims of voting irregularities involving improper vouching of rural voters.
A panel of two Ontario Supreme 121 Court judges confirmed 121 cases of voting irregularities, and Mr. Bevilacqua won the subsequent byelection.
Elections Canada records show there were 12 contested elections between 1949 and 1988, resulting in voided elections in five of the ridings, all over voting irregularities that did not involve bribery or corruption, which was more common in the 19th Century.
Original Article
Source: hill times
Author: Tim Naumetz
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