Wrzesnewskyj vs. Elections Canada over 'clerical errors'

In a supplementary factum filed in court late Friday, Borys Wrzesnewskyj's lawyers blast Elections Canada for taking what they call a partisan position, rather than the position of neutrality they say Elections Canada originally promised, in Wrzesnewsky's application to overturn the election results in his riding.

 

On April 16, Elections Canada filed a document that said the constitutional right to vote trumps any "clerical errors" that may be made when voters register to vote, and have their identities "vouched for" in the absence of proper identification.

 

Wrezesnewskyj's lawyers say this directly contradicts the stance Elections Canada took a few years ago when it defended new voter identification requirements against a Charter challenge that argued that voters' rights were being thwarted by the demand to produce certain kinds of identification documents at the polling booth.

 

This week in Ontario Superior Court, Borys Wrzesnewskyj, a former 3-time Liberal MP, is contesting the election results for Etobicoke Centre, the Toronto-area riding he lost by 26 votes in the May 2 federal election. He argues his loss is due to what he alleges are irregularities, or corrupt or illegal practices in voting procedures.

 

Wrzesnewskyj's lawyers are also refuting points made by Conservative MP Ted Opitz, the incumbent in Etobicoke Centre.  In a factum he filed late last week. Opitz contends that if any voter fraud occurred, which is a criminal offence, then Wrzesnewskyj must use the standard of "beyond reasonable doubt" to prove his case.

 

"This position is absurd," Wrzesnewskyj's factum states.  "A contested election application is not a privately-funded prosecutution of potential wrongdoing against a publicly-funded, non-partisan government agency.... It is up to Elections Canada, or alternatively the Attorney General of Canada, to prosecute persons for offences under the Canada Elections Act."

 

The challenge Borys Wrzesnewskyj faces is proving within the balance of probabilities that enough voting irregularities took place for the results of the election to have been affected.

 

During the first day of arguments Monday, the judge repeatedly asked Wrzesnewskyj's lawyer about the conundrum of deciding whether events that may very well have been just honest mistakes in paperwork should deprive a voter of the right to cast a perfectly legitimate ballot.  Given that mistakes are bound to happen amid the frenzy of election day, the judge wondered if every losing candidate who took part in a close race would now feel encouraged to use those mistakes to contest the electoral results. 

 

The case continues Tuesday.