Etobicoke Centre Election: Supreme Court Upholds Opitz's Victory, Overturning Lower Court

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OTTAWA -- A divided Supreme Court of Canada has ruled that Conservative MP Ted Opitz legitimately won his seat in the Toronto riding of Etobicoke Centre in the May 2011 federal election.

By a slim 4-3 margin, the high court granted Opitz's appeal and affirmed his razor-thin, 26-vote victory in an election that saw more than 52,000 ballots cast and unleashed a heated exchange of political vitriol.

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In a statement, Opitz thanked the court.

"As the court decision confirmed, a fair election took place, the result was clear, was then confirmed on a recount and the result has now been endorsed by the Supreme Court of Canada,'' he said.

Opitz was greeted with handshakes and applause from his fellow MPs when he showed up for a vote in the House of Commons shortly after the decision.

Opitz appealed an Ontario Superior Court ruling that set aside his victory over Liberal incumbent Borys Wrzesnewskyj because of procedural irregularities with 79 ballots.

In a historic decision that will guide future elections, the Supreme Court overturned the lower court ruling because it said 59 of those rejected votes should have been allowed to stand.

The court applied what it called a "magic number test'' to make its ruling, which in this case means Opitz essentially won his seat by a mere half dozen votes.

However, three justices — led by Chief Justice Beverley McLachlin — disagreed, saying Ontario Superior Court Justice Thomas Lederer made "no palpable and overriding error'' when he initially rejected 79 votes and set aside Opitz's victory.

Wrzesnewskyj, who spent hundreds of thousands of dollars on the legal fight, said the decision will help make elections fairer.

"I believe we've all won, because this has shone a light on all the various problems that occurred during the last election campaign,'' he said.

He said the case has already prompted Elections Canada to tighten its procedures and intensify training for election officials.

"What I do know is the next federal election in Canada will be run very differently and that means democracy wins and that means that every Canadian has won.''

Wrzesnewskyj said the case has also shown that the existing law is insufficient to deal with irregularities — not just the kind that plagued his riding but also voter suppression tactics allegedly employed elsewhere through automated calls that misdirected voters to the wrong polling stations.

"The law is outdated,''he said. "It needs updating.

"Technology has changed. ... You couple that with a change in the political landscape where there are political actors out there willing to do things that I don't believe people were willing to do in the past and the combination of those two speak to the fact that it's time to update the laws.''

He also said he plans to run again.

Interim Liberal leader Bob Rae said the party was disappointed with the ruling, but accepts the will of the court.

Rae also called for further changes to the electoral laws, linking the case to the so-called robocall scandal.

"We cannot forget that Canadians across the country were deprived of their right to vote through a co-ordinated attack on our democracy,'' Rae said in a statement.

"Though Mr. Wrzesnewskyj's case did not deal directly with these matters, it cannot be divorced from the allegations that have called into question the strength of our democracy.''

Harper, who shook hands with Opitz as they left the Commons following a vote, said he's willing to look at the law.

"But in this case, the important thing is it was the voters who made the decision and that's the way a democracy is supposed to work,'' Harper told reporters.

The decision marks the first time the Supreme Court has ruled on the validity of an election result in a federal riding in the modern era under the current Canada Elections Act.

There was no evidence that either of the candidates engaged in any level of fraud or corruption. It was the conduct of Elections Canada that came under close scrutiny.

Overall, the court concluded that entitlement to vote cannot be taken away simply because of a procedural error by election officials.

The court said that an irregularity that affects the result of an election simply means that "someone not entitled to vote, voted.''

In an era when low voter turnouts make for more frequent election-night nail biters, the justices laid out the ground rules on when the courts ought to involve themselves in reviewing tight election races and when they should not.

The court found that Elections Canada officials may have made some administrative errors when they registered new voters on election day, but concluded those errors did not ultimately have an impact on the final result.

"In exercising this discretion, if a court is satisfied that, because of the rejection of certain votes, the winner is in doubt, it would be unreasonable for the court not to annul the election,'' Justices Marshall Rothstein and Michael Moldaver wrote for the majority. "For the purposes of this application, the 'magic number' test will be used to make that determination.''

In this case, justices concluded that Lederer wrongly set aside at least 59 votes.

"Therefore the magic number test is not met, as the remaining number of votes invalidated (not more than 20) is not equal to or does not exceed the plurality of 26 votes.''

The court ruled that the candidate who seeks to overturn an election result — in this case Wrzesnewskyj — bears the burden of proving that irregularities occurred.

In this case, the majority ruled that Lederer made errors in determining who bore the burden of proof.

However, the minority found that Lederer had applied the correct legal test and that his original decision should stand.

"While various explanations for each of these problems were advanced, the application judge concluded, on a balance of probabilities, that the explanation for this catalogue of deficiencies was that the necessary declarations were never made,'' McLachlin wrote for the minority.

"The application judge made no palpable and overriding error in drawing this factual inference on the evidence before him.''

The majority ruling also addresses a number of key policy issues and urges vigilance on Elections Canada.

"In recognizing that mistakes are inevitable, this court does not condone any relaxation of training and procedures,'' it said. "The commissioner of Canada Elections appointed by the CEO has an obligation to ensure, as far as reasonably possible, that procedures are followed. ...

"Failure to live up to this mandate would shake the public's confidence in the election system as a whole and render it vulnerable to abuse and manipulation.''

The court said there are serious consequences to overturning an election. "It should be remembered that annulling an election would disenfranchise not only those persons whose votes were disqualified, but every elector who voted in the riding.''

It said the current system "is not designed to achieve perfection'' but should come close to enfranchising as many voters as possible.

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