On Thursday, the Supreme Court of Canada will rule on the Etobicoke Centre vote dispute. A landmark 1995 by-election in Harare South, Zimbabwe, suggests that, in the interests of true democracy, Canada's highest court should uphold the decision by Justice Thomas Lederer of the Ontario Superior Court, who nullified the election result of the Toronto-area riding. In other words, voters must be the final arbiter in the dispute.
Conservative Ted Opitz "won" the riding with just 26 votes over Liberal incumbent Borys Wrzesnewskyj during the 2011 federal election. Wrzesnewskyj successfully challenged the result before Justice Lederer, who nuked 79 disputed ballots, effectively overturning the election result. Then Opitz petitioned the Supreme Court to reverse the lower court's decision. If Opitz loses the appeal on Thursday, he ceases to be MP and Prime Minister Stephen Harper will have to call a by-election within six months.
There are disturbing parallels between the Zimbabwe election and the Etobicoke Centre vote dispute.
During the initial election in April, 1995, Margaret Dongo, a sitting MP, stood as an independent candidate and "lost" to dictator Robert Mugabe's ZANU-PF party by 1,097 votes. Dongo, did not walk away silently, as did most candidates who "lost" by a few hundred votes during the 2011 federal election. She investigated the vote and challenged the result in the courts.
I led the team that spearheaded the investigation. We investigated the ballots cast, voter's registers used, conduct by election officials, and unearthed massive fraud. Scores of voters had voted more than once. Unregistered voters had voted. Dead people too. People had voted without proper voter identification. Some voters had fictitious or incomplete addresses.
During the May 2011 federal election, a very Harare South thing happened in Etobicoke Centre.
In April, the CBC News reported that "dozens of people voted without providing any evidence showing where they lived." Furthermore, "at least five people appear to have voted twice." In this CBC News report, Wrzesnewsky alleges that 86 people showed up without voter identification cards Polling Division 31 and voted by registration certificate. Lederer threw out 15 of the ballots. Five voters who voted by registration certificate "most likely did vote twice." Two election officers "vouched for more than one voter who showed up without ID, something that, as Elections Canada employees, they should have known was illegal. Lederer threw out the four votes for which they vouched."
In Zimbabwe, the dictator's rigging machinery targeted and intimidated vulnerable communities. Wrzesnewskyj claims that Etobicoke Centre was targeted, and that, at Demetrius Seniors Residence, "many seniors lost their right to vote." Elections Canada affidavits alleged that a Conservative representative engaged in behavior that "disrupted the voting," "caused confusion, and frightened many voters." There's even a strong suggestion that "non-existent voters might have cast ballots in Etobicoke-Centre." Could be worse. Wrzesnewsky's evidence is from a small sample - less than ten per cent of the polling stations
Justice Lederer considered this evidence when he nullified the vote.
Using the evidence we unearthed, Dongo asked the High Court of Zimbabwe to nullify the Harare South election result. Justice George Leslie Smith accepted her evidence and invalidated the vote. During the re-run, Dongo trounced the dictator's candidate and returned to parliament as one of only three opposition MPs. She continued to be a strong voice for human rights, democracy and the marginalized. I worked for her as a speechwriter and personal assistant.
Dongo's historic victory laid the foundation for Zimbabwe's current democratic movement. It birthed some of Zimbabwe's finest politicians and activists. Scores of individuals who worked with her would become prominent leaders in Zimbabwe's democratic movement. Her lead lawyer, Tendai Biti, was elected MP for the opposition Movement for Democratic Change (MDC). He's now Zimbabwe's finance minister. Priscilla Misihairabwi-Mushonga, Dongo's election agent, is also a government minister. My friend Leranmore Jongwe, was also elected MP. He died in mysteries circumstances in police custody in 2002.
Wrzesnewskyj's courageous challenge inspires me as an immigrant. This son of immigrants has so far spent over $300,000 in unrecoverable legal costs. He is proof that we immigrants bring something special to Canadian society and politics. Something inspired by our difficult experiences in broken foreign countries.
Resilience, for example. From the first election through the investigation and court case to the by-election, the Harare South vote dispute took just over seven months to resolve. By comparison, it's been 16 months since the May 2011 federal election. It took nearly a year for the robocall scandal and Etobicoke Centre vote dispute to unravel. Zimbabwe's Justice Smith took just under three months to make an historic decision in a dangerous country. The Supreme Court of Canada has taken a little over four months to rule on Etobicoke Centre, even as the Canada Elections Act "dictates that contested elections must be resolved speedily."
We take out democracy, and the value of our vote, for granted. We consider our electoral system, relentlessly sold to emerging democracies as a model of fairness and integrity, to be beyond reproach. Our democratic institutions and those in power too. Canada's Chief Electoral Officer Marc Mayrand recently attributed the Etobicoke debacle to "procedural failures" and "technical irregularities." Even Wrzesnevskyj himself isn't alleging that fraud necessarily took place.
Anything but voter fraud!
The truth is: Canadian democracy got a black eye in Etobicoke Centre. Our electoral process got rigged the way elections have been rigged in Zimbabwe for 32 years. That's why there are parallels between Harare South and Etobicoke Centre. That's why we've got the robocall scandal. And prorogation of legislatures.
Elections Canada, the "independent" and "non-partisan" agency, has some explaining to do. In his ruling, Justice Lederer "found problems with the way that Elections Canada ran the election in Etobicoke Centre."
Wrzesnewskyj's case and the robocall scandal suggest that the government acquired its majority through a compromised electoral process. The case may become the beginning of the end of the Harper government majority. If the Supreme Court upholds the Ontario Superior Court's ruling, other defeated opposition MPs might follow Wrzesnewskyj's example and petition the courts. Obviously, the Tories aren't too thrilled about the prospect.
That's why the party filed multiple motions to dismiss a robocall scandal lawsuit filed before the Federal Court by nine Canadians supported by the Council of Canadians. That's why Opitz chose to appeal to the Supreme Court, instead of facing voters in a by-election.
By nullifying the result of the Etobicoke Centre election, Justice Lederer asked voters restore the integrity of our electoral system. So it should be!