The senior lawyer at the Canadian Civil Liberties Association said Thursday the association, which has long supported the lowest barriers possible for qualified voters who want to exercise their franchise, took the unexpected step of intervening in support of Mr. Wrzesnewskyj because going too far in the other direction—failing to validate voter qualifications—threatens the integrity of Canadian democracy.
“The right to vote is the right to have your vote counted according to law, and therefore be reflected in the result, and therefore if there are irregularities such that the outcome is not what the evidence shows, then I think the integrity of the system is at stake and all of the people in the riding have had their right to vote infringed because the result does not reflect the true legal results of the election,” Nathalie Des Rosiers, general counsel for the Canadian Civil Liberties Association, told The Hill Times. “The point is simply that elections are important. We should not be cavalier about the way in which they are run and we should not presume that they cannot be manipulated, and indeed to prevent any manipulation we just have to be careful and insist on good electoral practices.”
Ms. Des Rosiers was explaining why the association, the largest and most influential civil liberties advocacy organization in Canada, has intervened in a Supreme Court of Canada appeal launched by Conservative MP Ted Opitz (Etobicoke Centre, Ont.) after an Ontario Superior Court judge earlier this year overturned his 27-vote margin of victory over Mr. Wrzesnewskyj by setting aside 79 ballots because of irregularities that included missing records of voter registration, improper vouching and questions over citizenship qualification.
The Supreme Court, following arguments in a one-day hearing last month, is expected to rule in early September on Mr. Opitz’s claims that the irregularities were not significant enough to put all the voting results in the electoral district into question. If the court rejects the appeal, Prime Minister Stephen Harper (Calgary Southwest, Alta.) will have six months to set a date for a byelection in Etobicoke Centre.
Chief Electoral Officer Marc Mayrand, while arguing through his lawyers Elections Canada is not taking sides, has filed legal arguments at the Supreme Court suggesting the elections agency believes Justice Lederer interpreted Elections Act requirements for ensuring voter qualification and registration too rigorously.
Mr. Wrzesnewskyj has also questioned the approach Elections Canada has taken over his challenge, and told The Hill Times he believes the agency misled him and his legal team as they collected evidence and information from the election while preparing for the Ontario Superior Court hearing. Emails Mr. Wrzesnewskyj provided to The Hill Times suggest Elections Canada officials at one point stated they were conducting a poll analysis of riding election results—which delayed Mr. Wrzesnewskyj and his legal team’s access to records—and later denied they were conducting an analysis.
“It’s the question of principle,” Ms. Des Rosiers said in an interview. “When you look at the interveners (in the Supreme Court Case), Elections Canada was there, Alberta Elections, B.C. Elections, but there was no civil society group, and all the Elections (agencies) were taking a position that essentially was to say, I’m summarizing, ‘Well, elections are complex to run, we should not be held to too rigorous a standard, and therefore, mistakes will be made and let bygones be bygones.’
“For a civil liberties association that is devoted to democratic tradition, that’s a little bit of a scary position to hear Elections Canada taking,” she said.
Elections Canada should comply with the law, Ms. Des Rosiers said. “The danger that you see internationally is that once you accept a laissez faire attitude, there can be fraud or you just lack the legitimacy,” she said. “Certainly you want most people who are eligible to vote not to be prevented from voting, and you should be concerned about the fact that certainly there are people, if you have too many requirements, who will be turned away or turned down, but that’s not the issue before the court now.”
There should not be an assumption that everyone is eligible to vote, she said. “The idea that you can sort of fix it up later on is frightening,” she said.
Mr. Wrzesnewskyj said the intervention by the Canadian Civil Liberties Association is particularly significant considering its longstanding advocacy for lower barriers to citizens who want to exercise their franchise. The issue has become critical in the lead up to the 2012 U.S. federal elections in November, with raging controversies over allegations that state requirements for government issued photo identification such as drivers licences will suppress voter participation in minority communities.
“The Civil Liberties Association clearly has been at the forefront in defending people’s franchise, people’s fundamental right to vote, and it is a fine balance that we maintain the integrity of the electoral process, while at the same time making sure that people don’t get disenfranchised,” Mr. Wrzesnewskyj told The Hill Times.
“They [the Civil Liberties Association] were arguing that these [challenged] ballots that were in the boxes in Etobicoke Centre should not be counted, and that Justice Lederer’s findings of fact should stand,” Mr. Wrzesneskyj said. “It speaks quite loudly and it’s very telling, because fundamentally their concern is the integrity of the system.”
University of Ottawa law professor Errol Mendes told The Hill Times he also is concerned about Election Canada’s position in the Supreme Court appeal, and that it heightens his concern about the elections agency after it agreed to a slap-on-the-wrist $50,000 fine as the penalty for the Conservative Party for exceeding its expense limit for the 2006 federal election campaign.
Mr. Mendes said questioning from Chief Justice Beverley McLachlin at the July 10 Supreme Court of Canada hearing on Mr. Opitz’s appeal hinted that at least she questions whether irregularities like the ones that occurred in the Etobicoke Centre voting should be dismissed as simply “clerical errors.”
“She really battled them when both the lawyers for Opitz and Elections Canada said, ‘Look, these are clerical errors, these are minor errors,'” Mr. Mendes said. “She said, ‘At what stage does a clerical error become so big that it actually leads to loss of confidence in the election system of Canada?’ … That’s the key issue which Elections Canada has ignored.”
An Elections Canada spokesperson said the election agency would not be commenting on the court case.
Original Article
Source: hill times
Author: Tim Naumetz
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