Etobicoke Centre ruling has impact on future elections

The Supreme Court ruling Thursday on the 2011 election outcome in the Toronto riding of Etobicoke Centre means the experience of exercising your right to vote might change.

And any voter or candidate who wants to challenge a future election result over irregularities in voting procedures, as the Canada Election Act allows, might think about hiring a private detective.

In May, defeated Liberal MP Borys Wrzesnewskyj convinced a lower court to reject 79 ballots in Etobicoke Centre because of record-keeping irregularities at the polling stations, enough to overcome the 26-vote margin by which Conservative MP Ted Opitz won.

The Supreme Court effectively restored those ballots, finding no irregularities at all, despite improperly completed or missing paperwork for voters either not on the voters' list or lacking proper ID.

The ruling was a split 4-3 decision, with the minority judges, including the Chief Justice Beverley McLachlin, disagreeing with the majority on virtually every point.

Jean-Pierre Kingsley, formerly the chief electoral officer of Elections Canada for 17 years, called it a far-reaching judgment.

"What the Supreme Court has said is that the constitutional right to vote trumps procedural safeguards during the election day."

And because the court accepted after-the-fact evidence about voters' qualifications, he thinks things will change on voting day.

"It will be possible to foresee the Canadian electorate would go to the polls and say, 'my name is this, this is my address, check in the registry... but I don't have my ID. I'm willing to attest to this, I'm willing to sign an oath, I'm willing to sign a document. Check me out after, put my ballot aside, check me out, satisfy yourself after the fact.' This is what the Supreme Court has said."

Kingsley also said that it's probably now permissible for a voter to vote anywhere in the riding, rather than having to go to a designated polling station.

The Supreme Court found that even though many voters in Etobicoke Centre registered to vote at a poll they did not live in, their votes should count, as long as they lived somewhere in the riding.

"Just show up at a poll, maybe while you're on the way to the shopping centre, or whatever. How can anyone be turned away now?" Kingsley asks.

He emphasized that administrative errors, no matter what their ilk, may now be tolerated, in order to protect the right to vote.

For example, in Etobicoke Centre, 10 voters who registered to vote did not sign their registration certificates. The voter's signature is a statutory declaration that the voter is over 18 and a Canadian citizen. It is also a piece of evidence that could be subjected to handwriting analysis in the event of an investigation into voter fraud.

Yet the four judges allowed to 10 ballots to stand because they were signed by the registration officer working the poll. This was despite the fact that at the lower court, there was evidence that the registration officer could not be found in order to be questioned.

One returning officer who spoke to CBC said after the Etobicoke Centre election was overturned by the lower court, he had planned to put the "fear of God" into the poll workers he would train for the next election.

"Up to this point, I could say that you better be absolutely sure to fill things in right, because look at this, they overturned a $2-million election. And now, the Supreme court says 'no.' So now, don't worry about being sloppy - go right ahead. That's the really scary part about it."

The Supreme Court decision also means is that it will be difficult, if not close to impossible, for anyone to contest an election result on procedural errors, no matter how serious.

"The bar is now very high," said Kingsley.

He said the burden now on anyone challenging an election will be to prove a voter shouldn't have voted, by finding them and checking their addresses, likely with the help of skilled investigators such as private detectives.

Kingsley thinks the Canada Elections Act should be changed so that Elections Canada investigates a disputed election on behalf of a voter or candidate and then takes the case to court if it's viable.

At present, the adversarial system means the sitting MP has to finance a defence. "It's an incredible barrier especially if that person had been an independent candidate as opposed to being sustained by a political party -- or what if it were someone from one of the smaller parties?"

He suggests that if the case proceeds, and it is legitimate, then Elections Canada should also provide some form of reimbursement to the person who brought forward the case. Wrzesnewskyj spent close to half a million dollars on this case, and would still be out of pocket even if he had won.