As the lawyers who represented Borys Wrzesnewskyj in his contested election application, the four to three Supreme Court of Canada decision to uphold the election result in Etobicoke Centre was, of course, disappointing.
We are grateful and privileged, however, to have been a part of this truly Canadian democratic process. It is a testimony to the greatness of our country that such disputes are debated with civility and respect in Courts rather than, as seen in many places around the world, decided by violence. Of this, all Canadians should truly be proud.
While both the majority opinion and minority opinion of the Supreme Court of Canada were concerned with protecting the integrity of the federal voting system, the majority favoured what it called a "substantive approach" over what it referred to as a "procedural approach," and thereby, as stated by Chief Justice McLaughin in her dissenting opinion, merged the issue of whether a voter was qualified to vote with the question of whether a voter was entitled to vote.
The meaning of the word "irregularity" as used in the Canada Elections Act, was also significantly narrowed. As a result of this decision, unless one can essentially demonstrate that there is a fraudulent or corrupt practice behind a vote, once the ballot has been placed in the ballot box, it must be counted regardless of how it might have gotten there short of direct evidence to prove that it is illegitimate. The section three Charter right to vote will not be lightly disturbed and we must simply accept it will be presumed, without direct evidence from election officials and the actual voter, that the ballot was cast by a Canadian citizen, over the age of 18 years, and ordinarily resident in the electoral district who was legitimately entitled to cast the ballot.
In our view, the substantive approach endorsed by the majority has potentially other broad implications for election law beyond contested election applications.
First, as acknowledged by the majority of the Court, despite their finding that the procedural rules are essentially only directory, elections officials must still do everything possible to ensure that the procedures established by Parliament related to voter identity and proper record-keeping must be followed. But if the failure to follow those procedures has little real consequence in terms of the outcome of the election, then perhaps it is time to change the way elections are run.
In today's modern era where most people have access to computers and telephones, it no longer makes sense to rely on a purely paper-based system of voting and record-keeping. Voting over the Internet utilizing a secure pin number already exists and has been adopted by various organizations without complaint. Such a system would eliminate, among other things, the need for the completion of a paper "Registration Certificate" for unregistered electors, do away with "vouching" in order for an elector to prove his or her identity, and possibly eliminate the need to show up at a polling station at all.
Such a system may also make voting more convenient and thus "enfranchise" more voters by making it easier for electors to vote in elections. Accordingly, we hope that the decision of the Court may have some unintended positive consequences for electoral reform. A system not unlike that used by the Canada Revenue Agency in the filing of tax returns could be envisaged for the operation of elections.
More importantly, however, the decision may have some very real and practical implications for the real battleground in tight election races: judicial recounts. Under the Canada Elections Act, a voter must mark his or her ballot within the circle appearing on the paper ballot. In addition, a voter cannot put an "identifying" mark on the ballot, such as the elector's initials. In cases where a ballot is marked outside the circle but in the box where the candidate's name appears or with an identifying mark, the ballot is rejected and the voter is disenfranchised. Given the Supreme Court's ruling it would be unacceptable to disenfranchise voters on the basis of bad penmanship or their failure to follow the instructions for marking their ballot. If a ballot reasonably made the voter's intended vote clear, their vote should be counted.
Utilizing the new substantive approach, such ballots should be accepted since taking away the right to vote should be very hard. It should not matter where on the paper ballot an elector places a mark or what that mark looks like as long as it is clear that the mark is in a spot that can be associated with an intention to vote for a particular candidate. Furthermore, if it is still unclear for whom the vote was cast, then competing candidates ought to be entitled to call direct evidence from the respective elector so that it can be determined who that elector actually voted for.
With respect to identifying marks on a ballot, the reason commonly given for rejecting such a ballot is that the vote is supposed to be secret. However, the reality is that prior to election-day many people tell political parties or candidates of their voting intentions. Accordingly, if an elector wants to put a mark on a ballot identifying who they are, neither a deputy returning officer nor a judge should disenfranchise the voluntary decision of the voter to identify himself.
Based on the foregoing, as applied to judicial recounts, the Court's decision in the Wrzesnewskyj application will potentially give rise to a section three Charter challenge against those provisions which mandate that a ballot should be rejected because it was marked improperly.
Also the Court's decision and requirement for direct evidence may also impact the evidence usually led on a judicial recount. Instead of simply analyzing paper ballots and listening to legal arguments, candidates will now be well advised to call viva voce evidence from electors and election officials. Again, however, adopting an electronic system of voting will eliminate the kinds of legal issues encountered during the recount process.
Hopefully the decision of the Supreme Court will lead to real and meaningful electoral reform which will reduce or eliminate the issues that led to this application. While the majority decision acknowledges that "imperfection" and "uncertainty" are a part of the electoral process, Elections Canada should always strive to eliminate them. The less imperfect and uncertain the election process is, the greater the public's confidence in the legitimacy of the election process, and hence the Government the election process produces, will be.