Did Elections Canada mislead the Supreme Court?

Liberal Borys Wrzesnewskyj says "difficult questions" surround what he calls "problematic" new evidence presented to the Supreme Court at the last minute by Elections Canada in his court battle over last year's election in Etobicoke Centre.

Wrzesnewskyj claims problems with 'new evidence' presented to top court not disclosed

The 2011 federal election win of Conservative MP Ted Opitz, left, in Etobicoke Centre was declared null and void in May after a challenge by former Liberal MP Borys Wrzesnewskyj, right. (tedopitz.ca/Canadian Press)

Liberal Borys Wrzesnewskyj is not waiting for the Supreme Court's decision before firing another volley in his battle over last year's election in Etobicoke Centre.  

The court is expected to rule next week on whether Tory MP Ted Opitz can keep the seat which he won by just 26 votes. Either way, though, Wrzesnewskyj says "difficult questions" surround what he calls "problematic" new evidence presented to the court at the last minute by Elections Canada.  

The former Liberal MP alleges that the agency failed to mention relevant facts which should have been disclosed to the justices. For example, he says, Elections Canada argued that many voters whose ballots were rejected by the lower court because of missing paperwork were really valid, because their names had since turned up on the voters' list.  

What wasn't mentioned, Wrzesnewskyj says, was that nearly half of these were on the list in other ridings — not in Etobicoke Centre.  

In April, Wrzesnewskyj persuaded Judge Thomas Lederer of the Ontario Superior Court to throw out the election results because of 79 ballots which he ruled invalid. In many cases, Judge Lederer found that registration certificates, by which voters get added to the list of qualified electors, were missing or never existed.  

Opitz appealed the ruling to the Supreme Court, which came back from its summer recess to hear the case. That's when Elections Canada claimed to have found "new evidence" that 44 "invalid" ballots were, in fact, cast by valid voters, even though their registration certificates could not be found.  

The justices did not indicate whether it would even consider this new evidence — and Wrzesnewskyj's lawyers urged them not to. However, Wrzesnewskyj says his side didn't have time to fully examine Elections Canada's submission and to discover some revealing details.  

In particular, he points to one voter whose name was quietly dropped, without explanation, from Elections Canada's list of newly-discovered "valid" voters. That, he suspects, is because the same name occurs twice among those who cast ballots.  

"We've since found that one individual slipped off the list and it appears that person voted twice," says Wrzesnewskyj.  

That should have been disclosed, he says — although, in a second case, it was: a small footnote on the Elections Canada's chart concedes that two other names also appear to be the same person.

Wrzesnewskyj finds it even stranger that, in the very same polling station, Elections Canada provided 26 names of voters whose names had been "found" on the voters' list. On closer examination, 17 of those 26 names are actually registered in other ridings — as far from Etobicoke as Niagara Falls and Jonquière, Que. That means they could not have cast valid votes in Etobicoke.  

Besides that, says Wrzesnewskyj, Elections Canada seems to have "found" all these names by trying multiple different spellings, sometimes changing several letters before finding a match.  

That, at least, does seem to have been disclosed to the Supreme Court — if the justices can read it. In very small letters, a note appears next to eight names, saying, "Handwriting difficult to make out. Many iterations of name were tried."  

What the court did not hear is that some of these alternative spellings produced a match with the voters' list only after a bit of a stretch.

In one case, the handwritten initials in the Etobicoke poll records look like "C" and "S." The match that Elections Canada says it found on the voters' list has the initials "Q"and "J." A second surname had five letters beginning with an "R" — but, in the match allegedly found, all but one letter was different and it began with an "L."

For Wrzesnewskyj, all this calls into question the credibility of Elections Canada's "new evidence" — although he stops short of accusing the agency of trying to hoodwink the Supreme Court.  

"I'd hate to think that would even be possible in Canada," he says. "What we do know is that there are very difficult questions that need to be answered about this last-minute evidence."  

That is, if it matters. Even if the Supreme Court were to reinstate all 44 votes on Elections Canada's list, that would still leave 35 other votes ruled invalid by the lower court. That's nine more than the 26-vote margin which gave Opitz his seat.