It is never an easy task for a Supreme Court to weigh in electoral decisions, as it is the job of the top Court to protect and uphold individual freedoms and liberty, and to leave political decisions for the elected officials. But it is essential for the judiciary to weigh in electoral results, albeit in extremely rare occasions, where the very integrity of an actual election is at stake. Free and fair elections are at the cornerstone of any democracy.
The majority for the Supreme Court was correct in deciding not to overturn the final election result in Etobicoke Centre. Though it is unsettling that this election was won by the narrowest of margins and in the presence of irregularities, the Supreme Court must exercise great deference to Parliament and its institutions in the conduct of elections, intervening only in the most egregious of circumstances. Notwithstanding, that the Court unanimously agreed irregularities were a factor in Etobicoke-Centre sends the unmistakable signal that the conduct of elections is not above reproach, and requires significant improvement.
The Supreme Court had to adjudicate on two fundamental questions in this landmark ruling. First, the court had to determine whether Wresznewskyj “had satisfied his burden in establishing that there were ‘irregularities’ under s. 524 of the Elections Act, and that “Wresznewskyj had satisfied his burden to establish that the irregularities affected the election results.” (Judy Feng, “Ted Opitz et al., v. Boris Wresznewskyj et al: The Battle over Etobicoke Centre Election Results”, Centre for Constitutional Studies, http://www.law.ualberta.ca )
The Supreme Court concurred that there were indeed irregularities in Etobicoke Centre, but differed as to whether they affected the final result. Whereas the majority for the court found that the irregularities did not alter Opitz’ razor thin victory, the minority sharply disagreed and held that the election result should be annulled.
The majority established that the vast majority of the ballots overturned by the trial judge were done so in error, and on that basis, reversed his decision and held that the election result should not stand. Indeed,
at least 59 of the 79 votes disqualified by the application judge should be restored. The remaining 20 votes are less than O’s plurality of 26. Although the remaining 20 votes are not discussed, there is no reason to believe that any of the 20 voters were not in fact entitled to vote. Because W has failed to establish that at least 26 votes should be disqualified, his application to annul the election should be dismissed. (Opitz vs. Wresznewskyj, 2012 SCC 55 (CANLII) )
The decision is necessarily mired with technical specifics, but the gist for the majority is that the trial judge set too relaxing a threshold in determining an irregularity. Procedural errors, though inexcusable, cannot be determined to invalidate a result when there is insufficient compelling proof to conclude that the final outcome was affected. In finding that 59 of the 79 ballots should never have been invalidated, Opitz’ election victory margin was reduced from 26 to a mere 6 votes, or by the narrowest of victories.
The minority judgment, written by Chief Justice Beverly MacLachlan, found that the decision of the trial judge should not be disturbed “in the absence of palpable and overriding error.” As none were found in this case, the decision by the trial judge should be upheld and the election result, annulled. To be sure,
in this case, the application judge applied the correct burden of proof and, while he improperly set aside some votes, he did not err with respect to 65 ballots cast by persons not entitled to vote. As this exceeds the winner’s plurality of 26 votes, the election should be annulled. (Opitz vs. Wresznewskyj, 2012 SCC 55 (CANLII) )
A split decision was desirable in the case at bar, given the ambiguities in relation to the closeness of the result, and also in the presence of irregularities. Though the majority decision is preferable, requiring that candidates demonstrate stringent proof to show irregularities on a balance of probabilities, the minority judgment shows that determining irregularities itself is a complicated procedure, and one subject to interpretation. Another concern with the majority judgment is that it potentially elevates the burden of proof from a balance of probabilities to something closer to the criminal reasonable doubt standard, in setting such a high onus on the complainant.
Notwithstanding, the majority made the right decision for two fundamental reasons. First, the Court must only weigh in the political sphere in the most flagrant of circumstances, and overturning this result could set a very dangerous precedent, one whereby the Supreme Court becomes a forum of convenience for disgruntled candidates to adjudicate their disputes. The Court must strenuously guard against this undesirable outcome, and must use an exacting standard.
Second, the Court must vigorously defend section 3 of the Charter of Rights and Freedoms, which upholds the democratic rights to vote for “every citizen of Canada in an election of members of the House of Commons or of a legislative assembly.” (The Constitution Act, 1982, being Schedule B to the Canada Act, 1982, (UK), 1982, c.11.) In preserving this fundamental right, the Court must only set aside votes if compelling evidence establishes that irregularities affected election results.
Regrettably, the lessons of this precedential ruling did not seem to deter the Conservatives from their unmistakable partisanship. Shortly after the ruling, Ted Opitz declared that “a fair election took place, the result was clear, was then confirmed on a recount and the result has now been endorsed by the Supreme Court of Canada.” (“Supreme Court upholds Conservative win in Toronto riding”, CBC News, http://www.cbc.ca/news/politics) Given that the court unanimously found irregularities, the election can hardly be described as fair, and given a razor thin victory of six votes, itself subject to debate, the result was anything but clear. Such hyper-partisan remarks in the aftermath of a divisive and complex election battle cheapen the Supreme Court ruling, and undermine our democratic institutions.
This ruling underscores that although the primary function of the Supreme Court is to apply the law, there is a necessary role for the judiciary in preserving the integrity of our democratic institutions, and with it the fundamental rule of law. In arriving at such a narrow split decision, but unanimous in their finding of irregularities, the Supreme Court has sent the unmistakable signal that flawed election procedures must be remedied to restore confidence in our electoral process in the future.
Mr. Opitz should heed this vital message, demonstrate humility, and dispense with facile political talking points, endemic to the hubris to the Conservative Party of Canada. Although Opitz prevailed, irregularities have been exposed, and the confidence in our electoral process has been temporarily undermined. Sadly, even this stark reality could not call for magnanimity from our government, but let us hope all our elected representatives learn from this humbling experience.
Jeremy Richler has completed an MA in Political Science and an LL.B. He is a member in good standing with the Law Society of Upper Canada.
