OTTAWA — The Supreme Court Thursday overturned an Ontario judge’s order for a byelection in the Toronto riding of Etobicoke Centre.
As a result, the court preserved Conservative MP Ted Opitz’s 26-vote victory over second-place finisher and incumbent Liberal Borys Wrzesnewskyj. Nearly 53,000 votes were cast in the riding in the May 2, 2011, election.
In a first-of-its-kind ruling, the Supreme Court, in a narrow 4-3 decision, disagreed with Ontario Superior Court Justice Thomas Lederer that some ballots in the riding were improperly cast.
Earlier this year, Lederer decided that 79 ballots were improperly cast because there was evidence at least a few people voted twice in the riding and that, in other cases, there was insufficient proof that the ballots were cast by someone who was entitled to vote in that riding.
But the Supreme Court said Lederer was wrong on at least 59 of those ballots and may have been wrong on the 20 others.
Wrzesnewskyj had gone to court after the election to overturn the results claiming there was a long list of “irregularities.”
Neither Wrzesnewskyj nor any other party claimed in court that any candidate, party or voter engaged in any fraud or illegal wrongdoing. Instead, he pointed the finger at Elections Canada for failing to administer the election properly.
The former Liberal MP is said to have spent more than $350,000 pursuing this legal action.
Lederer didn’t agree with all of Wrzesnewskyj’s arguments but agreed with enough to say 79 ballots were improperly cast. And, as Opitz won by 26 votes, Lederer reasoned that those improperly cast ballots could have affected the outcome and so he ordered a byelection.
All the Supreme Court justices, even those on the dissenting side in the case, agreed with Lederer’s “magic number test.”
“Although a more realistic test may be developed in the future, the ‘magic number test’ is used for the purposes of this [case],” the Supreme Court said in the majority judgment co-written by justices Marshall Rothstein and Michael Moldaver. “It provides that an election should annulled if the number of invalid votes is equal to or greater than the successful candidate’s plurality.”
Even if Wrzesnewskyj had won in court and then gone on to win a byelection, it would not have changed the basic facts in the House of Commons: The Conservatives would still hold a majority and the Liberals would still be the third party.
But the case is important in the sense that Wrzesnewskyj got as far as he did and may encourage others who lose in a closely contested race to do the same.
Candidates and political parties are expected to closely scrutinize the ruling for a better understanding of what an “irregularity” means under the Canada Elections Act, which guides the administration of federal elections.
The Supreme Court ruled the basic principle is that an irregularity has occurred if it can be proven, even with circumstantial evidence, that someone who was entitled to vote was prevented from doing so.
Notably, “an election official’s failure to follow a procedural safeguard” doesn’t automatically invalidate anyone’s vote.
In other words, no Canadian should have their ballot set aside simply because an Elections Canada official fouled up.
The Supreme Court also conceded a point Elections Canada tried to make with regards to the case: “The practical realities of election administration are such that imperfections in the conduct of elections are inevitable,” justices Rothstein and Moldaver wrote.
The majority on the Supreme Court also hinted that they were worried that “permitting elections to be lightly overturned” would lead to a flood of new litigation from candidates looking for judges to overturn the verdicts of voters.
Still, the Supreme Court was as divided as it could be with four justices agreeing with Opitz and three justices, including Chief Justice Beverley McLachlin agreeing with Wrzesnewskyj.