On Tuesday I traveled to Ottawa to attend in person a historic Supreme Court hearing. The Court is currently examining a precedent-setting legal case where the spirit and the letter of the Elections Act are being tested.
The three-time Liberal MP for Etobicoke Centre, Borys Wrzesnewkyj has won an Ontario Superior Court judgment that voided the last election result in that riding. Justice Lederer has ruled that Elections Canada failed to demonstrate that at least 79 voters lived in Etobicoke Centre in an election with a 26-vote margin. Keep in mind that the court only examined 10 polls out of 240 polls in the riding.
The Ontario Judge recognized the weight of his decision. He challenged Wrzesnewkyj's lawyer repeatedly expressing discomfort with second-guessing an election result and the message that may send to future defeated candidates. However, after examining all of the facts, it was clear to him that there were enough irregularities to cast a shadow over the election result.
The Conservative MP Ted Opitz decided to appeal that decision to the Supreme Court.
During the Supreme Court hearing, the Justices were engaging and probing. Lawyers representing the Liberal and Conservatives candidates had an hour each to argue their case. Then each of Elections Canada, Elections Alberta and the Canadian Civil Liberties Association had 15 minutes to present their point of view.
On the surface, the case appears simple.
Documents (Registration Certificates) that were required by law were missing. Those documents were essential to verify that voters, whose names were not on the local voters list, were entitled to vote in that riding. Those voters could have lived anywhere or may have voted in other places. The number of questionable (irregular) ballots was greater than the margin of victory. Therefore, the result of the election is put in doubt and another election must be called.
In reality, the Justices during their deliberation will be considering other and bigger questions.
That the rules set out by the Elections Act were breached is not in dispute. Elections Canada and the Conservatives concede to those facts. What the Justices will be deciding is if breaking those rules violate the spirit of the law.
Some of the questions the Justices will be asking themselves: Why should we assume that voters who couldn't prove their place of residence don't actually live in that riding and are entitled to vote there? What kind of message will we be sending to future elections if we choose to ignore those violations? Is Elections Canada justified in its nonchalant attitude towards the occurrence of voting irregularities? Voices who are urging the Supreme Court to ignore those irregularities are basing their arguments on two major reasons:
1) If the Court decides to void the election results and to call for a new by-election it will disenfranchise the thousands of Canadians who voted by the rules. Disenfranchisement is a major sin in a democracy and must be avoid it at all times. However, that argument crumbles quickly when responding with the following question: How is asking all voters to re-vote again because of major errors constitute a disenfranchisement?
2) If the Court calls for a by-election, it will set a precedent where defeated candidates will seek a decision from the courts every time there is a tight margin. That is also a weak argument. No matter what decision the court makes, it will be a precedent setting. It will either tell Elections Canada, political parties, candidates and voters that strict enforcement of the rules are optional, which could be seen as an invitation to all kinds of questionable practices -- individuals could flock to ridings with expected tight margins to vote there instead of their own ridings. Or it will send a message that such rules are critical to the integrity and fairness of the election process and when those rules are not followed and where the margin is very tight, the Court cannot look the other way.
The irony here is that it was the Conservative Party who introduced stricter rules to the Elections Act to ensure fairness.
Watching the Justices in action on Tuesday, one could not help but be impressed and inspired by their intelligence and power of reasoning. The Supreme Court Justices will examine all facts and aim to find a balance that will respect Canadians right to vote and their right for a fair election.