Etobicoke decision will put a chill on election advocates: Osgoode dean

Nov 2, 2012


By James Munson, iPolitics

After Borys Wrzesnewskyj, Stephen Thiele probably took the last week’s news the worst, when the Supreme Court of Canada gave its decision over the contested Etobicoke Centre election.

“I’m the guy who looked at 232 polls, (who) poured over election documents,” said Thiele, speaking to law students during an discussion on the court’s decision held Wednesday at Osgoode Hall Law School in Toronto.

Thiele was one of the lawyers representing Wrzesnewskyj during the the eighteen-month saga over the challenged election results that ended last week with the court upholding Conservative candidate Tom Opitz’s win over the Liberal.

As someone who was on the front line, Thiele gave a grim prognosis of what the Supreme Court’s decision means for future legal fights over election results.

“I think Jean-Pierre Kingsley said in the next contested election somebody is going to hire a private investigator and that’s exactly what’s going to happen,” said Thiele, referring to the former chief of Elections Canada. “And I’m not sure that’s good for democracy, but that’s what’s going to happen.”

The dean of Osgoode Hall, Lorne Sossin, echoed Thiele’s worries during his commentary on the Supreme Court decision during the speaking event.

“It’s going to set the bar much higher, in other words, at the level of if there’s an irregularity, it better look like something like fraud or corruption,” said Sossin. “There better be some intent behind it or something systemic or something about impersonating a voter. If it’s anything administrative, which is to say most of what happens in a polling booth, it’s not going to give confidence that you get to a contested election under this section (in the Canada Elections Act.)”

“I worry more about the chilling effect this has rather than the jurisprudence on which this is built,” he said.

In the Supreme Court’s decision, the majority of judges determined that administrative irregularities in the way Elections Canada carried out the vote did not amount to the kind of troublesome events that justify contesting an election under the conditions set out in section 524 (1) (b) of the Canada Elections Act, the foundation upon which Wrzesnewskyj’s judicial appeals for a new vote rested, according to Sossin and Thiele’s analysis.

The section states that “Any elector who was eligible to vote in an electoral district, and any candidate in an electoral district, may, by application to a competent court, contest the election in that electoral district on the grounds that…there were irregularities, fraud or corrupt or illegal practices that affected the results of the election.”

Wrzesnewskyj and his counsel focused on the irregularity part of that and weren’t alleging anything more malevolent was at play on election day.

A flood of screw-ups by people running the election emerged in the original judicial recount of the election’s results — which was automatically triggered by the slim margin of victory — and inside Elections Canada records of what happened on voting day, which Thiele and the rest of Wrzenewskyj’s counsel found through the course of their 524 (1) (b) challenge, said Thiele.

Voters who weren’t registered didn’t sign registration certificates at the polling stations, some people showed up from other ridings, young people ineligible to cast a ballot and the prescribed record-keeping for people who showed up without identification but had someone else vouch for their identity didn’t happen.

The case, as it evolved, ended up focusing on 10 polls out of the 232 in Etobicoke Centre and the irregularities found there, such as missing records over who vouched for whom on election day, for expediency’s sake.

Among other things, the Supreme Court found that the failure to follow proper procedure was worthy of being called an “irregularity,” according to Thiele and Sossin’s analysis.

That effectively means a court will need to hear testimony and get affidavits from voters themselves if a party ever wants to prove there is something bigger going on behind irregularities, said Thiele.

“If you cast a ballot now in the election, you’d better hope it’s not a close one because you could be held before the court,” he said.

That runs against other Supreme Court decisions – such as O’Brien vs. Hamil – that found elector affidavits should not be admissible evidence in contested elections, said Thiele.

And aside from deterring people from challenging vote results, achieving such a high standard will be prohibitively expensive and time-consuming, he added.

“That’s going to cost a hell of a lot of money,” he said.

In Sossin’s view, the court’s decision also raises question about why a court should be called in to examine the highly-specialized problems involved in running an election, which is the jurisdiction of the regulator, Elections Canada.

“I’m not going to tell a nuclear regulator how to run a nuclear facility,” said Sossin. “I’m going to let nuclear experts do that.”

And as long as paper ballots remain the norm and irregularities themselves are not contestable in court, the call for more tech-savvy voting methods should also be headed, he said.

“I’m worried it won’t be until 2020 we get into the 20th cenutry, let alone the 21st century,” he said.