Toronto riding's election result tossed by judge

Conservative MP Ted Opitz's federal election win last year in Etobicoke Centre has been declared null and void following a court challenge by former Liberal MP Borys Wrzesnewskyj.

Conservative MP Ted Opitz's Etobicoke Centre win overturned; party 'disappointed'

Conservative Ted Opitz, left won the May 2011 election in Etobicoke Centre by 26 votes, but defeated Liberal Borys Wrzesnewskyj, right, challenged the results over voting irregularities. (tedopitz.ca/Canadian Press)

Conservative MP Ted Opitz's 2011 federal election win in Etobicoke Centre was declared null and void today in a challenge by former Liberal MP Borys Wrzesnewskyj.

Opitz won the May 2011 election by 26 votes, but Wrzesnewskyj challenged the results over voting irregularities. The case required more than 26 votes be thrown out for it to be declared void.

Conservative Party spokesman Fred Delorey said they're disappointed with the court decision after 52,000 people in Etobicoke Centre "followed the rules, cast their ballots and today had their democratic decision thrown into doubt."

"The judge has found problems with the way that Elections Canada ran the election in this riding," he said in an emailed statement.

"As the judge took care to point out in the decision, Ted Opitz and the Conservative campaign team followed the rules.

Opitz's office released an identical statement.

Wrzesnewskyj told CBC News that the riding needs a byelection to restore democracy.

'Something broke' in the last federal election

"Something broke in the last federal election," Wrzesnewskyj said. "It's a terrible thought not to know whether or not someone who is in the House of Commons, voting on laws by which we govern ourselves, whether those individuals are actually an expression of the will of the people."

He and the Conservatives seem to agree there's a need for more training for the volunteers and temporary workers the election agency takes on in advance of voting day.

"Elections Canada has to have the resources to properly train their officials, to make sure that people who vote are — it's as basic as making sure that they actually are Canadian citizens."

On Power & Politics Wrzesnewskyj told host Rosemary Barton that he intends to run in a byelection.

"This is an incredible victory for Canadian democracy," he said by phone. "It restores people's confidence in the integrity of our electoral processes."

NDP House leader Nathan Cullen was pleased with the court's decision.

"Score one for democracy," he told Barton. "I hope the government doesn't appeal."

Interim Liberal Leader Bob Rae said in a statement that democracy "was tested and perhaps undermined during the last election."

"Reports and allegations of election fraud are widespread and there are many cases still under investigation. This has cast serious doubts on the integrity of our electoral system, but we are confident that a byelection in Etobicoke Centre would help greatly in reaffirming the strength of our electoral system and Canada’s democracy," Rae said.

Later, on Power & Politics, he told Barton that the Liberal party will be examining the ruling closely and looking to see if it might apply in other ridings where the results were close.

Rae said the ruling gives rise to broad issues around the integrity of the elections system that need to be considered by all political parties.

"We all have to make sure that ... we have an electoral law and an elections system which is not subject to abuse and where there is abuse you can't just put all the burden on the individual candidate to say, 'I'm going to prove otherwise.' There clearly are some improvements that we need to make in our election law."

Justice Thomas Lederer set aside 79 ballots in his decision Friday in Toronto. Opitz has eight days to appeal. If he does, the case would be heard as soon as possible by the Supreme Court of Canada. The court could hear the case as early as June and then has no hearing dates set aside until October. A date would be set after discussion between the lawyers for both sides and the court's registrar.

The last time a disputed result ended in a byelection was in 1988 in a race between Liberal Maurizio Bevilacqua and Progressive Conservative Michael O'Brien in the then-riding of York North, Ont.

The byelection wasn't held until 1990. Bevilacqua held the riding for the next 21 years until he stepped down to run for municipal office in the riding, now known as Vaughan and held by Conservative MP Julian Fantino.

Case about 'confidence' in electoral process

Wrzesnewskyj's lawyer had argued up to 181 ballots were in dispute. 

The voting irregularities included some people who weren't on the list but cast ballots after being vouched for by others at the polling station, some people without the proper paperwork completed, and others in which voters cast ballots when they were registered at other polling stations or didn't live in the riding.

Lederer said the core of the case was about the "confidence that Canadians must have in our electoral process."

"If that confidence is diminished, it follows that our interest in, and respect for, government will be similarly diminished. It surely follows that if people who are not qualified to vote were permitted to do so, or if there is a concern that people may have been permitted to vote more than once, confidence in our electoral process will fade." 

Lederer noted that it seemed the election was conducted by responsible public officials and well-intentioned individuals who were motivated by nothing less than a desire to do the job properly.

But it can't be good enough to accept some people voted by registration and without registration certificates, without poll books recording who vouched for whom, and without having their names on the final list of voters.

"Our system requires more," Lederer wrote in the 40-page decision.

Elections Canada wouldn't comment on the decision in case there's an appeal.

Former chief electoral officer Jean-Pierre Kingsley told CBC News that Lederer made "the right judgment."

He said it's not often, but that mistakes are made on election day.

"People don't do this for a living, they are ordinary Canadians who are brought in and they're trained to do a job and it so happens that some of them don't do it as thoroughly as it should be done," said Kingsley. "It's not something that's rampant, but it is something that occurs. It's human nature at work."

Lawyers examined ballots

Under a court order, Wrzesnewskyj's lawyers were able to examine the ballots at 10 polling divisions, as well as poll books and electors' lists at Elections Canada's office in Ottawa.

The test to declare the election invalid, and trigger a byelection (after any appeals are exhausted), was a finding that more than 26 ballots, the losing margin, should not have been counted.

Particularly outstanding is what went on in Polling Division 31, located in a church in Etobicoke. Eighty-six people voted by registration certificate on May 2, meaning they showed up without a voter identification card. Wrzesnewsky's lawyers claim that 68 of those voters actually lived in another polling division and should never have been allowed to vote at polling station 31. Lederer threw out 15 ballots in that polling division.

In another polling division in the riding, five voters who voted by registration certificate are listed as being crossed off the electors' list in another polling division, indicating they most likely did vote twice.

In one polling division, both the deputy returning officer and the polling clerk vouched for more than one voter who showed up without ID, something that, as Elections Canada employees, they should have known was illegal. Lederer threw out the four votes for which they vouched.

with files from Leslie MacKinnon