The four judges who prevailed in the court’s split decision argued that they were protecting the fundamental right of Canadians to choose their own MPs when they dismissed the challenge from defeated Liberal candidate Borys Wrzesnewskyj.
And in making that particular argument, Justices Marshall Rothstein, Michael Moldaver, Rosalie Abella and Marie Deschamps were eloquent.
They pointed out that Canadian courts have always erred on the side of inclusiveness when adjudicating elections — that, for democracy to work properly, those who are qualified to vote must be given every opportunity to do so.
They’re right that this is an important principle, particularly in light of events in the U.S. where some state legislatures controlled by Republicans have rigged the rules to disqualify voters liable to cast ballots for the Democrats.
But in making this argument, the Supreme Court majority failed to take into account the other half of the picture.
For democracy to work, citizens must not only be able to vote. They must also be given reason to believe that the results of their voting are fair.
In Etobicoke Centre, this didn’t happen.
The Toronto riding was one of a handful in last year’s federal election where the results were agonizingly close.
When the ballots were finally counted, Conservative Ted Opitz was deemed to have defeated Liberal incumbent Wrzesnewskyj by just 26 votes.
There is always some funny business that happens in Canadian elections. No party is squeaky clean.
But in the Etobicoke case, Wrzesnewskyj argued that enough funny business had occurred — particularly involving ballots cast by people not eligible to vote in the riding — to put the result in doubt.
He wanted a rematch.
An Ontario Superior Court judge agreed. Three Supreme Court judges (including Chief Justice Beverley McLachlin) also agreed.
McLachlin and fellow dissenters Louis Lebel and Morris Fish made a simple argument. They looked at the law governing who gets to vote and determined that — in more than 26 cases in Etobicoke Centre — this law was not followed. Some 65 people not entitled to vote were allowed to do so.
The majority foursome dismissed the minority’s reasoning as overly technical. But in a context like today’s, where citizens mistrust politicians even more than usual, the letter of the law takes on great importance.
The Etobicoke Centre case may have nothing to do with the so-called robocall scandals — in which some campaign operatives deliberately tried to mislead voters from opposing camps. But in the public mind, it is easy to conflate the two.
When voters think politicians are bending the rules to suit partisan purposes, the courts play a crucial role. It is their job to uphold the rules.
They may not get to decide whether Premier Dalton McGuinty should be able to prorogue the Ontario Legislature or whether Finance Minister Jim Flaherty has the right to ram though anti-environment laws under the guise of a budget bill.
But judges do get to decide on matters of law. And, in the case of Etobicoke Centre, the law as outlined by McLachlin seems clear.
One final note. This wasn’t a U.S.-style partisan decision. Already I’m hearing from readers worried that the Etobicoke ruling was the inevitable result of Stephen Harper’s decision to pack the top court with conservatives of his particular ilk.
Not so. It’s true the majority included two Harper appointees. But it also included one judge, Abella, picked by former Liberal prime minister Paul Martin. The fourth, Deschamps (now retired), was chosen years ago by Liberal Jean Chrétien.
Original Article
Source: the star
Author: Thomas Walkom
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