New Brunswick

Hearing set to probe disputed Saint John Harbour election result

the lawyer for Progressive Conservative candidate Barry Ogden

Saint John Harbour was the closest race in the Sept. 24 provincialelection

PC candidate Barry Ogden, right, is pictured leaving the Saint John Law Courts on Friday with riding association president Peter Josselyn. Ogden is seeking a closer examination of election documents and alleged voter discrepancies in Saint John Harbour. (Brian Chisholm / CBC)

Justice Hugh McLellan has ordered a hearing for Dec. 19 to determine whether Elections New Brunswick officials violated the Elections Act in the riding of Saint John Harbour.

Kelly VanBuskirk, the lawyer for Progressive Conservative candidate Barry Ogden, alleged in New Brunswick Court of Queen's Bench on Friday polling station officials in the hotly-contested riding violated the Act by recording 40 voter ID numbers twice in voting logs.

Ogden lost by 10 votes to Liberal Gerry Lowe in the Sept. 24 election.

It was the closest race in the province and became central to the fight for power between the PCs and Liberals. Neither party won the 25 seats required for a majority in the 49-seat legislature.

On Oct. 4, a recount confirmed Ogden had lost.

On Dec 19, the court will hear testimony from an Elections NB official explaining alleged irregularities on so-called 'Bingo Sheets,' like these ones. (CBC)

Now, Ogden and his legal team are seeking to have the results of the general election overturned.

'Cacophony of errors'

An affidavit filed Nov. 26 by Patti Nason, a long-time municipal returning officer, addresses each of the alleged wrong entries in the voting laws and attempting to explain how they happened.

VanBuskirk said the affidavit not only failed to clarify the duplicate entries, it introduced a new "cacophony of errors," including misreadings and transcription mistakes on the so-called "Bingo Sheets," or Statement of Electors that indicate who voted.

Lawyer Kelly VanBuskirk said in court Friday an affidavit filed Monday by municipal returning officer Patti Nason raised more questions about transcription and clerical errors on Elections NB documents. (Brian Chisholm / CBC)

"Ms. Nason's affidavit does not provide the clarity that may have been hoped for," VanBuskirk told the court.

"It appears to me that Ms. Nason examined the 40 votes, and she now points out 214 discrepancies or deviances from the elections procedure attached to just those 40 elector numbers."

The discrepancies did not appear in the official, computer-based records, but VanBuskirk argued they still cast doubt on the democratic process.

Lowe's lawyer, Tom O'Neil, disagreed, saying Nason's affidavit "fully explains what has happened here [and] verifies that none of these 40 numbers voted twice."

His client, O'Neil explained, would like to see the "cloud" handing over the election results lifted definitively.

"I thought common sense could prevail here," O'Neil said.

Third attempt

Friday was the third time Ogden's team has applied to obtain election documents to review them for clerical and transcription errors.

The PCs attempted to file the application in early October but were advised by Elections NB officials they had to wait until the writ was returned, which only occurs after a recount.

Liberal MLA Gerry Lowe won the riding of Saint John Harbour with 1,865 votes to PC candidate Barry Ogden's 1,855. (Brian Chisholm / CBC)

On Oct. 29, McLellan dismissed the party's application for a full review of all Saint John Harbour election documents, stating they needed to better focus their application.

Fred McElman, a lawyer for Elections NB, said at the time legislation governing the vote requires a specific allegation of errors being made in voting procedures — not "suspicion and speculation" of errors for a review to proceed.

The amended notice of application was filed with the court on Monday.

'Painfully transparent'

McLellan stated he would "like to get [the hearing] done without delay, with the least possible number or interruptions."

The aim of the proceedings, he said, is to "clear up concerns" about the alleged discrepancies.

"One of the very important principles that apply here is that this whole process has to be painfully transparent in the same way that we don't just ... settle the election results that are announced on election night until we go through a recount," McLellan said. 

"There has to be a transparent review of the issues of documentation and fact that are set out in the affidavit of the elections official."

McLellan scheduled a hearing for Dec. 19 to cross-examine Nason and review the documents and computer entries.

"The examination may help to resolve some, or all, of the issues," VanBuskirk said.

ABOUT THE AUTHOR

Julia Wright

Host, Information Morning Saint John

Julia Wright is the host of Information Morning Saint John on CBC Radio 1. She previously worked as a digital reporter focused on stories from southwestern New Brunswick. She has a master's degree in English from McGill University, and has been with the CBC since 2016. You can reach her at julia.wright@cbc.ca.

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