Supreme Court makes the right call on election — but only just

Emmett McFarlane: ‘The closer I read today’s judgment, the less convincing I find the minority’s logic’

Sean Kilpatrick/CP

As is true of almost all Supreme Court of Canada cases, no one had more at stake in today’s ruling on the 2011 Etobicoke Centre election than the litigants, Liberal incumbent Borys Wrzesnewskyj and Conservative Ted Opitz, who has sat as the riding’s MP after winning by 26 votes in a contest apparently plagued by irregularities.

As with most Supreme Court cases, however, the even more fundamental concern was how the judges would set out standards by which to assess relevant issues in the future: how should we determine whether “irregularities” affected the outcome and how should we balance the concern for fair elections with the need to ensure all eligible citizens can vote? Unfortunately, the seven judges split over those questions in a 4-3 decision overturning a lower court judgment that annulled enough votes to order a new byelection.

I say the inability of the Court to achieve consensus here is unfortunate for a number of reasons. First, it has led to the (completely inaccurate) claim that the Court somehow divided along partisan lines. Paul Wells rightly dismisses this notion here.  Political scientists have spent a lot of time focusing on the influence prime ministerial appointments have on Supreme Court decision-making. There’s very little evidence of a partisan effect. And although broader ideological or personal values of judges can play a prominent role in some areas of the Court’s jurisprudence, there’s little evidence of that here either.

Second, the narrow decision will no doubt leave many questioning the legitimacy of the election and, possibly, future elections. This isn’t to say unanimous judgments are always desirable. My own research has gone some ways to demonstrate that forced consensus can lead to vague or overly narrow reasons that do little to provide governments and the lower courts with legal guidance. Furthermore, good dissents can provide sharp relief to the complexity of issues at stake and even help guide future jurisprudence.

Yet the closer I read today’s judgment, the less convincing I find the minority’s logic. Led by the chief justice, Beverley McLachlin, the minority adopts a narrow proceduralist approach to determining the validity of votes cast. McLachlin sums up her colleagues on the other side as asserting “that everyone who is qualified to vote and ordinarily resident in the electoral district is entitled to vote.  Thus, a voter who is not on the electoral list and has not filed a registration certificate (s. 149) can be later held to have been “entitled” to vote if he was qualified to vote and ordinarily resident in the electoral district.  I cannot accept this view.” [at para. 164]

In effect, the minority position is that it doesn’t matter whether the voter was, in reality, eligible to vote; what matters is whether all the I’s were dotted and T’s crossed from a procedural perspective. This approach, according to the majority, is contrary to the main (though not only) purpose of the Elections Act and the Charter of Rights: enfranchising Canadian citizens. The majority writes that the “procedural safeguards in the Act are important; however, they should not be treated as ends in themselves.  Rather, they should be treated as a means of ensuring that only those who have the right to vote may do so.  It is that end that must always be kept in sight.” [at para. 34]

One example involves votes cast by people whose names were not on the register of electors and for whom registration certificates were apparently lost. At one poll, a number of names were recorded in the poll book but the certificates could not be found. From the perspective of the judges in the minority, this was enough evidence not only of an “irregularity” but also that the ballots should be deemed ineligible. But the majority noted that the deputy returning officer recalled having them filled out and that there was subsequent evidence these people were, in reality, eligible voters.

The minority’s reasoning has highly problematic implications. First, it suggests the onus is not on a complainant to demonstrate irregularities actually affected the outcome of an election but that in light of procedural irregularities otherwise legitimate votes should nonetheless be discounted. This goes to the heart of the franchise. Not only does it fail to safeguard constitutionally protected voting rights, but it would also have the perverse effect of producing the sort of irregularities we want to avoid (legitimate votes being discounted).

Second, if the minority judgment had won out in this case, it would mean an avalanche of litigation after every election for any riding outcome with a margin of a few hundred votes. If the mere existence of administrative errors creeping into our electoral process causes a crisis of confidence for some people, imagine what dozens of court challenges to the results in every federal and provincial election would do.

The majority decision has a firm grasp on the practical realities at place. The judges write that “our electoral system must balance several interrelated and sometimes conflicting values.  Those values include certainty, accuracy, fairness, accessibility, voter anonymity, promptness, finality, legitimacy, efficiency and cost.  But the central value is the Charter-protected right to vote.” [para. 44] Further, they note that the “current system of election administration in Canada is not designed to achieve perfection, but to come as close to the ideal of enfranchising all entitled voters as possible. Since the system and the Act are not designed for certainty alone, courts cannot demand perfect certainty.  Rather, courts must be concerned with the integrity of the electoral system.”

This may be cold comfort to those who worry about fraud or simple errors resulting in ineligible votes. Some may not even care that there was no evidence of enough truly ineligible ballots to affect the outcome (let alone zero evidence of fraud). But if the cost of procedural safeguards to ensure absolute certainty in this regard is the disenfranchisement of legitimate voters then we may need to live with the reality that no system is perfect. At the very least, as the judges in the majority were correct to conclude, we need to have concrete evidence that results have been adversely affected by potential errors before we start overturning elections.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. You can follow him on Twitter @EmmMacfarlane




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Supreme Court makes the right call on election — but only just

  1. It’s not tough to tell by your writing that you’ve been recently poring over legal decisions.

  2. Well considered, and I agree that the logic posited by the Majority is preferable to that of the Minority. But several problems still exist in this decision worthy of further examination.

    Let us first consider three stages of the electoral process in Canada: a voter’s eligibility is established, the voter marks and deposits a secret ballot, and the votes are tallied and results determined. There are well-established rules and case law around the tallying of votes, some of which has established a substantive approach (e.g. a ballot is to be counted if the intent of the voter is clear, without identifying the voter, regardless of whether the mark is a check, an X, or other).

    The SCoC decision acknowledges these stages, barely, but does not address the fundamental problem with after-the-fact examination of eligibility of voters: that it is not the challenged voter whose ballot is discounted, but rather some random voter who cast their ballot for the candidate who received the plurality of votes (yes, that could be the challenged voter, but how they cast their ballot cannot be known while preserving the secrecy of the ballot).

    The legislative framework, therefore, puts many safeguards in place to ensure voter eligibility is established prior to their ballot being cast, including providing plenty of opportunity for a candidate (or a Candidate’s Representative, commonly referred to as a scrutineer) to challenge their eligibility should procedures not be followed properly.

    The Supreme Court acknowledged that votes should not be lightly cast aside, but they would have been better to set the bar more clearly, given both the legislative framework and the damage which may be caused by removing a ballot from the plurality after the counts are tallied: given that these voters could have been challenged prior to their having voted, none of these ballots should be discounted on the basis of mere record-keeping anomalies.

    Further, the Supreme Court needs to be mindful when they set a standard of what “common” errors might occur, and how their standard might be applied in future elections. It is not uncommon for record-keeping errors to occur of the sort cited, for polling stations to not be open for the complete duration of the election day, or for voters to appear to have voted more than once (even when they did not), or in different polling divisions. How will elections officials judge each such error in future?

    The minority claims to have not reversed the onus test, while the majority holds the opposing view. This is interesting, and goes to the heart of an appeal: if the lower court made no error in law, its findings are entitled to deference. Lawyers will parse this more closely, but one is left to wonder if any judges might have been seeking an outcome, and from that outcome determined whether or not the lower court was correct in its placing burden of proof. If any partisanship were to be alleged on behalf of the justices (and I don’t believe there was any), it could hinge on such a question.

    There is also a degree of danger in simple declarations, such as that the presence of a name on a list of electors might constitute proof of citizenship [para 95, 134]. Only time will tell how long it may be until some immigration lawyer cites this finding as applicable to a different realm of cases, when in fact a name could appear on a list of electors for simply checking off a box on a tax form – a class of potential ineligible voters which the SCoC failed to consider, thus treating voters unequally who registered on election day versus marked their tax return.

  3. to save the credibility of the system, I would have preferred to “err” on the side of overturning the election upon evidence of wrongdoing, and not on the side of needing “concrete evidence” before doing so. As it stands, we know that the sharpest sociopaths among us are playing by a completely different set of rules than society at large, so in matters of such importance, I say err on the side of the maximum caution towards anything that even smells of impropriety……layman’s opinion is all. Sociopaths win every time when the standard needed to catch them is that of “concrete”.

    • With respect, your suggestion would have the unintended consequence of empowering such sociopaths even more: all they would have to do would be to establish that the results of an election *could* be in question, regardless of whether such question arose out of their own behaviour.

    • Your idea would embolden all those who lost in an election, to suggest impropriety and simply trigger a new vote. Psychopaths can be found on both the winning and losing side. There must be a greater basis than that to overturn election results.

      • I think this point – and I’ve seen it more than once – misses the obvious corallory. The court has made it clear that it will bend over backwards to avoid overturning a questionable election. So instead of seeing a rush of challenged elections, I expect to see a further increase in dirty tricks, disinformation, vote suppression and other corrupt practices. After all, the Supreme Court has just made it clear that the burden of proof on a complainant is so onerous that it is effectively an impossible standard.

        Stand by for new levels of electoral cheating.

        • But this case had nothing to do with “dirty tricks, disinformation, vote suppression and other corrupt practices.” The Court was addressing administrative error.

          • Exactly. I’m with lgarvin, but this case did not bring up any of the dirty tricks and rather focussed solely on administrative errors. So for the Supremes to rule based on the results of dirty tricks, evidence of which they did not hear, is expecting a little too much of our justices, sad to say. Still, the result will, I expect, be as lgarvin says.

          • I didn’t mean to suggest that they should have been considering other cases and other issues, only that I think they were clearly hesitant to exercise their authority in the present case. Which is why I keep saying it was an abdication of responsibility.

          • Yes but the decision hinges (by my reading) on raising the bar on ‘irregularity’ to such a height that it is very nearly unattainable. Decisions like this don’t just settle the current matter, they set precedent for the next one, and the next. If you can’t satisfy the court that an irregularity is an irregularity, then how can you satisfy the court that corruption is corruption?

            In the upcoming robo-calls cases, I’d suggest that the burden of proof that has been placed on the complainants, by this decision, will mean that the complainants face an impossible task. They must have enough sworn witnesses who will testify in court “that I received a Robo-call, that it told me my polling place had changed, that this directly resulted in my failure to vote, that I intended to vote for the candidate who lost, and that I am ready to identify myself to the government, and face cross-examination and opposition research at my own expense against government lawyers for as long as it takes.” In each disputed riding they will need a greater number of witnesses than the plurality that won the riding. Certainly one complainant is not going to be enough. I expect the Robo-calls case to be dropped or dismissed at the first opportunity.

            And all because of a logical fallacy,no-one was asking the court to “disenfranchise” any voters. They were asking – we were asking – that they ask the voters to do it again. Why in the name of reason would the court feel that asking people to vote again is disenfranchising them?. If a Prime Minister wants to give an MP an appointment – as happens from time to time – you don’t hear any outcry about the poor voters of riding X being dis-enfranchised, do you?

            The majority court was wrong. They redefined the meaning of irregularity to such an extent that an irregularity without clear malice is, in their view, not an irregularity at all. Twenty disputed votes were allowed to stand because, while the legally required documentation can still not be found, a clerk remembers seeing it somewhere. The result; these votes are irregular in ever sense of the word… except in the legal sense where they are deemed to be regular by inference.

          • The court addressed this. They answered why asking people to vote again disenfranchises voters. And they set out the reasons why the meaning of “irregularity” in the context of that section of the Act must have a very high bar.

            Remember what the “legally required documentation” is for those voters already on the PLE: for most, it’s that they checked off a box on their tax form. Yet the court found in this case that their name being on the OLE is “proof of citizenship”. For various administrative reasons there are different standards applied to those adding themselves to the voters list on election day, but the court found that those administrative reasons don’t trump a voter’s constitutional rights.

            You’ll disagree, and that’s fine. I would vehemently disagree had the court set aside the results of last year’s election.

          • I will disagree. Not just with your opinion but with your interpretation of the decision. When you say that the court “answered why asking people to vote again disenfranchises voters.” I decided to go back and read the decision again since I didn’t remember it that way. Here’s what I found; the court cited an author (as opposed to case law) and stated that “… a by-election is not a perfect answer.”

            I find that a remarkable justification. The majority decision, up until this point, has been entirely predicated on the reasoning that “no-one’s perfect;” and “mistakes are inevitable” and “these are only part-time volunteers,” and we can’t let the perfect be the enemy of the good. Except in this one circumstance where anything slightly less than perfect is completely unacceptable?

            The more I read this decision, the more I am convinced that the majority decision is poorly argued, logically inconsistent, rambling and contradictory. It indicates to me a decision that was made first and justified – poorly – as an afterthough.

            Do you realize that the majority opinion cites four precedent cases where the “procedural approach” [meaning a strict reading of the law] was used and only two where the “substantive approach” [meaning you have to squint a certain way and not got hung up on details] was used. Regardless, the majority chooses to use the second approach, the ‘don’t look too hard’ approach. Even at that, they have to discount the correct decisions made by the trial judge and substitute a bunch of after the fact inferences (their word, not mine) in order to smooth over the lumps in the carpet.

            The minority decision, on the other hand, is concise, logical, consistent and exhaustive. It takes less than 30 pages, whereas the majority took nearly 70 pages to produce it’s dog’s breakfast of tortured rationalizations.

            P.S. As usually happens when I revisit an impression, my initial impression is reinforced. This was a bad decision which, it seems to me, had less to do with the proper legal framework and more to do with trying to reduce the future workload for the court. I mean how does that argument even make it into a Judicial Decision – “if we follow the law too closely, then everyone and their dog will come crying to us about broken laws.” Did they not even think to edit that out when proofreading?

  4. There was no partisan behaviour demonstrated in the decision, I agree. However, I do want to know why Justices Karakatsanis and Cromwell did not participate. I can’t find it in the decision nor can I find a reason on the Internet. Where were they?

    • They weren’t on the bench when the case was heard, that is my understanding.

    • I don’t know the specific reasons, but the case was heard as part of a special rush hearing in July. If one judge was away/unavailable, they’d keep a 2nd person out (to have odd number panel). Having fewer than the full panel of 9 is less the norm these days but by no means unusual.

  5. So you heard it here, folks. The most important thing is your right to vote, so next election be sure to vote early, and most importantly… vote often.

    • Again…. have you a shred of evidence that there was any voter fraud in that riding in the last election? Or are you simply parroting Bob Rae? The case was never about any kind of voter fraud, it was about Elections Canada’s competence.

      • Again, have you bothered to actually read what I wrote before spewing your shit?

      • I don’t know or care what Rae said. I don’t live in the district but I am very concerned about it happening in my district or any distcict in Canada. Democracy is most important.
        I believe that unqualified people voted. I believe that some who were qualified did not get a chance to vote I believe that some outside the district voted. I believe that someone from the Conservative Party’s headquarters interfered in the voting process in at least vocating location. I believe this was a fraudulent election and an affront to democracy.
        Re irregularities by Election Canad’s officials being incompetent: this is serious and has to be corrected immediately. but even for this reason there should have been a scruplessly run re-election, that way no one can complain with the results. The cost of re-election is peanuts conpared to the need for absolutely fair elections. I have no faith in our system as it exists now.

  6. ok point taken – nothing’s perfect, and you aren’t likely to make it so by throwing every single close decision into question over possible clerical errors; you might set a nasty precedent.
    But wasn’t there also allegations of voter intimidation as well? Was this not part of the case and if not, is it going to be investigated by elections Canada?

    • Intimidation was not mentioned, nor was voter fraud alleged because the bar is set very high for the onus of proof. The process is meant to be dealt with quickly.

      Wrzesnewskyj therefore presented only evidence from 10 out of 230 polling districts — a summary sample. Evidence of voter irregularities was the chosen argument because there seemed to be enough evidence to invalidate the results. There now is evidence that $300,000 in legal fees is the bare minimum to challenge an election or the right to vote.

      The majority sided with the right to entitlement — the right to vote trumps procedural errors. Sadly, discussion about the due diligence that is necessary to prevent fraud was missing, The intervention by Elections Canada was disgraceful and all justices ruled against “seeking to adduce fresh evidence” in the future.

      The Elections Canada submission was just a clumsy, but very expensive attempt at a bureaucratic cover-up; no doubt ‘lawyered up’ by a government willing to spend whatever it takes to prove it’s point.

      I’m with the minority report on this one. The right to vote may be an entitlement, but it is also a privilege, and with every privilege is a responsibility. That responsibility will not be set by this ruling, this right is still open to abuse.

      • Some very good points. Setting the bar high is obviously necessary but putting a price tag like that should concern everyone who loves democracy and free and fair elections. Surely one consequence of this has to be far more scrutiny from EC, which is a good thing. It’s unfortunate that it’s always the haters
        and the cheaters who make this necessary at all.
        Overall though i have to side with the majority…perfection is an ideal, just not in this world.

  7. In an attempt to speed up the court case, and because of the
    amount of money and time it would take to obtain all the evidence, ***ONLY 10
    polling stations out of 236 in Etobicoke-Centre are being looked at.

    AS WELL for the same reason (lack of time and cash), Borys
    did ^NOT file complaints about voting disruption and the robocalls that went on
    from the CONS.

    http://www.cbc.ca/news/canada/story/2012/03/02/pol-election-case-boris-wrzesnewskyj.html

    • I’m just struck by how awful it must be to carry the name Bronfman and feel as you do about the 1%. I, too, feel that way most of the time, but I don’t automatically get judged as being one of them.

  8. FROM TWITTER RESPONSE TO NORMAN SPECTOR:

    Rosalie Abella on #SCC voted no 2 Borys, hubby former head
    of Can Jewish Congress #Etobctr #cdnpoli #Israel-strikesagain

    Harper loves Israel.
    Rosalie Abella and her husband LOVE Israel = backroom deal

  9. From article link: There
    were a number of reports on May 2, 2011 about disrupted voting at a polling
    location at a seniors’ centre.

    Borys has affidavits from Elections Canada employees
    detailing these disruptions from Ted Opitz’s campaign manager and other CON
    staff. Also new immigrants were
    targetted by the CONS. Not to mention
    all the robocalls.

    http://www.cbc.ca/news/canada/story/2012/03/02/pol-election-case-boris-wrzesnewskyj.html

    • Oh yes, there was so much more going on than what the court heard. And you can’t blame Borys, because $300,000 covered the well documented, don’t have to make the case that these irregularities occurred, items. Imagine how much more expensive it would have been to bring all this other stuff into it. But you also can’t blame the court for not ruling on stuff it didn’t hear.

  10. I
    thought this article By Stephen Maher was top of the heap. Ignore the
    headline, written by a drunk billionaire owner of mass media while he
    was getting a lap dance: four judges of the Supreme Court of Canada
    ruled Lederer erred in throwing out those votes, because the deputy
    returning officer provided “direct evidence” about the certificates.
    ***Three of the other judges disagreed.

    http://www.calgaryherald.com/news/national/real+problem+with+voting+many+votes+enough/7455230/story.html

  11. This article is a lot of moaning and groaning by a neocon puppet boy spinning the lies for the 1%. TOTAL FAIL HERE< WILL NOT BE TWEETING

  12. If rules are not meant to be followed, then just do away with the rules. Why have some people abiding by them and others having the liberty to ignore them.
    The 4 justices just decided that the Harper’s approach to rules – follow it only if it is convenient and to your advantage – is the new norm.

  13. In an attempt to speed up the court case, and because of the
    amount of money and time it would take to obtain all the evidence, ***ONLY 10
    polling stations out of 236 in Etobicoke-Centre are being looked at.

    AS WELL for the same reason (lack of time and cash), Borys
    did ^NOT file complaints about voting disruption and the robocalls that went on
    from the CONS.

    http://www.cbc.ca/news/canada/story/2012/03/02/pol-election-case-boris-wrzesnewskyj.html

  14. What does Stephen Harper have in common with Supreme Court
    Justices Rosalie Silberman Abella, Marshall Rothstein, Michael Moldaver AND
    Marie Deschamps (married to Paul Gobeil)?
    They all love Israel over Canada.
    Those are the 4 judges (out of 7) who voted against Borys Wrzesnewskyj,
    former Liberal MP who took the Conservatives to court over election fraud in
    Etobicoke-Centre.

    I smell a backroom deal for CON Ted Opitz big time. Five bucks Stephen Harper soon awards Abella,
    Rothstein, Moldaver and Deschamps with Order of Canada medals, to be presented
    by Prime Minister Benjamin Netanyahu… at a $5,000 award dinner… to be held in
    Israel.

    http://sixthestate.net/?p=6918

    -00-

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