It was just four judges falling on one side of a difficult question, while three of their colleagues — including the chief justice — fell on the other.
And while the court ultimately chose not to overturn the results in this riding, the case is an illustration of why electoral procedure matters. Elections Canada must take careful note.
Conservative Ted Opitz won the riding with a slim margin of 26 votes. The courts have since had to decide whether 26 votes or more had sufficient irregularities to annul the election, which would mean a byelection. They treat the margin of victory as a “magic number” because even though it’s unlikely that all 26 (or more) voters with “irregularities” would have voted for Opitz, it’s possible they all did.
Imagine two voters go to two different polling stations in the same riding. Both are citizens who live in the riding. Voter A is turned away on a technicality — for example, the person vouching for him doesn’t live in his polling district. Voter B is mistakenly allowed to vote anyway, despite the same technical problem following the rules.
Should Voter B’s vote be thrown out after the election?
The minority of the Supreme Court says yes, and its reasons are sound.
As the chief justice wrote, “If we decline to set aside votes cast by non-entitled people on the grounds that they are subsequently proven to be qualified and ordinarily resident in the electoral district, the result is a system where the only way to be confident in the accuracy of an election outcome is to investigate the identity, residence and qualification of voters after the election.”
In other words, there’s a time and place for voters to prove their eligibility, and it’s on voting day — not afterwards if there happens to be a review. The rules exist so that we can be confident that only eligible voters voted, so we won’t have to investigate afterwards to know for sure.
The minority also argues, rightly, that it’s unfair for Voter A to be turned away and not Voter B, dependent on luck or the competence of polling station workers.
And while the court is crystal clear that there was no hint of fraud in this case — just technical error — any condoning of laxity in following the rules could open the system to fraud in the future.
The minority argues that 65 votes should be set aside — more than the “magic number” of 26.
The majority disagrees. Voter A, they reason, could have resolved the technical problem and voted later in the day (an argument that assumes a lot of spare time and civic interest on the voter’s part). Voter B, who blithely went home thinking he or she had voted, had no such chance. It’s not the letter of the law that counts, the majority argues, but whether the person was a citizen who lived in the riding and had a right, therefore, to vote.
They also argue, more convincingly, that “if elections can be easily annulled on the basis of administrative errors, public confidence in the finality and legitimacy of election results will be eroded.”
This is true, and because there’s no proof that any of the disputed ballots in Etobicoke Centre were from voters who absolutely should not have voted there, the majority’s decision makes sense.
To annul an election is a serious matter. It’s impossible to replicate the conditions on general-election day; there is really no such thing as a do-over. And the irregularities in this case are mainly of the i-dotting and t-crossing variety.
Even so, the majority was wrong to chide the challenger, Liberal Borys Wrzesnewskyj. As the eloquent minority argument makes clear, there is a strong argument on his side. Yet the majority sniffs that they “reject the candidate’s attempt to disenfranchise entitled voters and so undermine public confidence in the electoral process.” There was no attempt to disenfranchise anyone here; it’s a legitimate argument about whether the letter or the spirit of the law takes precedence.
And while constant overturning of elections would certainly undermine faith in the system, so would a sense that the system shrugs at rule-breaking. The rules exist to make sure nobody votes twice, or in the wrong riding, or when he or she isn’t a citizen over the age of 18. If there are no consequences for shoddy work at polling stations, the system falls apart.
So it’s up to Elections Canada to make sure there are consequences. Mistakes may be inevitable in any system, but Elections Canada must try to reduce them to numbers that would not throw even slim victories into question.
Original Article
Source: ottawa citizen
Author: Ottawa Citizen
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