07/10/2012 04:30 EDT | Updated 09/08/2012 05:12 EDT

Etobicoke Centre Supreme Court Case: Voting Rights At Stake In Overturned Election, Justices Told


OTTAWA - Residents of a Toronto riding were still unclear Tuesday just who is their true member of Parliament after Canada's high court reserved judgment in a first-of-its-kind electoral dispute with the country's democratic process at its heart.

The Supreme Court of Canada justices spent half the day listening to arguments over a Conservative MP's appeal of a lower-court ruling that tossed out the result of last year's federal election in Etobicoke Centre.

But despite high hopes of a ruling from the bench, the dispute — Tory MP Ted Opitz in one corner, defeated Liberal incumbent Borys Wrzesnewskyj in the other — remained unresolved as the justices retired to mull over their verdict.

Wrzesnewskyj, who brought the original suit in the lower courts, described the case as vital to the ongoing health of — and public confidence in — Canada's voting system.

If the high court upholds the lower ruling, Prime Minister Stephen Harper would have six months to call a byelection, although Wrzesnewskyj said the vote should be held as soon as possible.

"Should we win this case, it's incumbent on the prime minister to act immediately," he said outside the courtroom.

"Democracy requires it. We can't have this situation where we don't know who the representative is."

Waiting the full six months would set "a terrible precedent," he added.

Wrzesnewskyj lost to his Conservative challenger by just 26 votes, but the defeated Liberal went to court, claiming procedural irregularities.

Earlier this year, an Ontario Superior Court judge found that Elections Canada officials made clerical errors at the polls. Justice Thomas Lederer threw out 79 votes, enough to overturn the original result.

Opitz countered by filing a first-time-ever appeal with the Supreme Court of Canada.

"At stake is the election," Opitz said after the hearing. "So if it's overturned, there's a potential byelection, and we'll go to that."

Only five other election results have been nullified by the courts since 1949. None of those rulings were appealed and byelections were quickly called to re-determine the will of the people in each riding.

Opitz's lawyer, Kent Thomson, argued that the voting rights of people in Etobicoke Centre were trampled by simple record-keeping errors.

"It's hard to think that a constitutional right of this importance could hang by so fine a thread," he told the court.

The election result was overturned on the grounds that paperwork was not properly filled out for voters who needed someone to vouch for their identity or who were left off the list of electors.

In his ruling, Lederer specifically stressed the irregularities were the result of clerical errors by well-meaning Elections Canada officials, not the product of fraud or intentional wrongdoing.

Since then, however, Wrzesnewskyj has resurrected other more serious allegations of ballot-box stuffing and voter suppression by Opitz's campaign, though nothing has been proven.

"People lost their franchise, they lose their right to vote. When people lose their right to vote, an election is not free," Wrzesnewskyj said.

"When ballots end up in the box that shouldn't have been there because someone showed up without ID and without proper vouching was allowed to vote, or people were allowed to vote even though they weren't registered, that's not a fair election.

"Elections cannot be free if they're not fair, and they cannot be fair if they're not free."

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