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

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