Etobicoke Centre goes to the Supreme Court

The disputed vote in Etobicoke Centre goes to the Supreme Court this morning for a final appeal. The official summary is here. The factums from Ted Opitz, Borys Wrzesnewskyj and Elections Canada are here.

Susan Delacourt says it’s a test of our democratic machinery. Leslie MacKinnon says the stakes are higher for all sides. Postmedia says the chief electoral officers for British Columbia and Alberta are concerned.

Our live coverage will start here around 9am.

8:54am. Greetings from the Supreme Court. The lawyers are seated and the candidates have taken their places in the gallery—Mr. Opitz on the right side, Mr. Wrzesnewskyj on the left. Now waiting for the justices to arrive.

9:00am. All rise. Let’s do this. (Or words to that effect.)

9:05am. You can watch the proceedings online here. We begin with arguments on the new evidence from Elections Canada concerning the National Register of Electors and 44 of the voters who were disqualified by the Ontario court.

9:11am. Under questioning from Justice Moldaver, Mr. Opitz’s counsel argues that the new evidence would have answered the Ontario judge’s concerns (though Mr. Opitz’s counsel feels the Ontario ruling should be overturned for other reasons as well).

9:23am. Mr. Wrzesnewskyj’s counsel argues the evidence is irrelevant because—if I understand correctly—it matters not whether the voters are Canadian citizens, but whether they were qualified to vote in Etobicoke Centre. Counsel also argues the evidence isn’t reliable.

9:33am. The court reserves ruling on the appeal. Moving on the main case, Mr. Opitz’s counsel frames the question as whether the constitutionally guaranteed right to vote can be negated by errors of record keeping by Elections Canada employees. If the Ontario ruling is upheld, 79 voters will be disenfranchised. Chief Justice McLachlin seems rather unimpressed and wonders if this has nothing to do with the case. She suggests counsel is adding “colour.” Counsel attempts to proceed, but is then quizzed by Justice LeBel and Justice Abella.

9:39am. Mr. Optiz’s counsel argues for a certain standard that must be met before votes can be disqualified: a standard, the argument goes, that was not met here.

9:53am. I don’t watch Supreme Court proceedings nearly enough (read: almost never) to know if this is typical, but it is wildly entertaining to watch Chief Justice McLachlin interjecting so often to quibble with counsel. If the House ever adopts a system whereby the Prime Minister takes questions in the House once a week for an hour—a la PMQs in England—Ms. Machlin should be invited to oversee it.

9:58am. The Canadian Civil Liberties Association is intervening in this case.

CCLA argues that, where there is a failure to follow the legislation, the effect of which, on a balance of probabilities, calls into question whether a candidate was elected by a majority of qualified voters in that riding, the seat must be vacated and a by-election must be held without delay. It is essential that the principles of Canada’s constitutional, parliamentary democracy are upheld.

The CCLA’s factum is here.

10:05am. There is some debate as to what constitutes an irregularity and whether errors of record keeping constitute an irregularity, which leads to Chief Justice McLachlin arguing for a high standard of record keeping.

10:07am. Mr. Opitz’s counsel: “The integrity of process has not been jeopardized here.” He argues it isn’t shown that anyone who wasn’t qualified to vote was able to vote. Chief Justice McLachlin counters that there is uncertainty. Mr. Opitz’s counsel argues if every error of paperwork is a problem, the courts will be kept busy with protests.

10:12am. So which throws the system into greater disrepute: negating a result because of paperwork errors or allowing a result to stand despite paperwork errors that put the vote into dispute?

10:17am. Interesting thought from Chief Justice McLachlin: If we lived in Afghanistan, we’d be much more suspicious of improperly maintained paperwork.

10:24am. Bit more from Mr. Opitz’s side and now we are in recess.

10:35am. Just discovered that there’s a badminton court set up in one of the courtyards of the Supreme Court building. No one was playing just now, but feel free to spend the rest of the day entertaining yourself with the image of the seven justices playing badminton in their robes during recesses.

10:41am. And we’re back, starting with arguments from Mr. Wrzesnewskyj’s counsel. “The rules matter,” he says.

10:50am. Justice Rothstein asks counsel to define an irregularity. Mr. Wrzesnewskyj argues there is a distinction to be made between irregularities and irregularities that affect the result.

11:07am. Justice Rothstein asks whether there is any evidence that a vote was improperly cast. Counsel argues it would be improper to question a voter about how they voted, but he does say there is evidence that someone might have voted twice. Segues into an argument about the importance of proper record keeping to maintain the integrity of the result.

11:10am. A couple of observations from political science professor Dennis Baker.

Real danger of Wrzenewskyj arg is not flood of by-elections but EC becoming more strict and denying voters opp to vote.

I admire lawyerly precision, but part-time, quickly trained EC workers unlikely to reach that standard. Nub of problem, no?

11:17am. Fair amount of back-and-forth between counsel and Justice Abella over the standard and approach to be applied here.

11:24am. And now an exploration of the vouching process and how the rules are applied in the case of nursing homes (relevant to one of the polling stations in question here).

11:30am. Most questions for counsel now from Justice Abella, Justice Moldaver and Justice Rothstein. Whatever that might or might not mean.

11:37am. With Mr. Wrzesnewskyj’s counsel nearly out of time, Justice Moldaver challenges him about the onus of proof as it pertains to the pivotal paperwork. Counsel is trying to make his case with both bullet points and charts.

11:42am. Now counsel for the chief electoral officer who is arguing against Mr. Wrzesnewskyj, that voters here should not be disenfranchised because of mistakes by elections staff (rather than fraud, corrupt or illegal practices).

11:50am. Counsel engages the chief justice’s argument about the importance of following the rules. Counsel argues that there are checks and balances in place. Then invokes tests by which irregularities can be measured and a voter’s qualification can be determined.

11:57am. “Mistakes are going to be made,” says counsel, in summation. The real question is, what is the test under those circumstances?

11:58am. Now counsel for the chief electoral officer of Alberta (see link above).

12:00pm. Counsel argues—if I understand correctly—this will be precedent setting, setting out the balance between the right to vote and the obligations for the administration and integrity of the vote.

12:05pm. Early reviews of today’s hearings from the CBC, Globe and iPolitics.

12:08pm. Counsel just referred to the Chief Justice as “m’lady.”

12:09pm. Now counsel for the CCLA (see link above). Counsel argues that the errors in question should not be considered acceptable.

12:13pm. Now a debate over the potential meaning of placing a check mark in a box. It depends, it seems, on what the box is intended to represent.

12:18pm. Finally, five minutes of reply each for counsel to Mr. Opitz and Mr. Wrzesnewskyj. Neither seems particularly persuaded by the opposite side.

12:27pm. The court reserves judgment and that’s it for today’s hearing. The lawyers shake hands and exchange pleasantries. Now to the post-game reactions.

1:07pm. David Di Paolo, counsel for the chief electoral officer, commenting on what’s at stake.

What’s at stake is if the rules are lessened to too great an extent, then the result is going to be a large number of contested elections. We already have eight contested elections in Canada that are outstanding at this time. If the rules are too loosely applied, you’re going to have more of them. Anytime, in this hyper-partisan environment, when you have a plurality that is too small, the inevitable result will be a contested election by the voters of Canada.

Gavin Tighe, counsel for Borys Wrzesnewskyj, on the wider implications.

I think that one of the points that was made was that this ruling will apply this country and that one of the things that the court was concerned with, and rightly so, is that democracy in Canada has integrity. Integrity means that the rules are the same for everyone, that there are one set of rules and that we all live by them, doesn’t matter where we live and those rules needs to be applied equally and fairly. And if we don’t have the right to vote in a fair democracy, then our right to vote isn’t worth very much.

Mr. Tighe, on the difference between an innocent clerical error and a significant error.

Our view is that you look at what the effect of the error is, of the irregularity. For example, if someone in a hospital makes a clerical error and marks on your chart the wrong thing and you get the wrong procedure, that’s a clerical error that has a pretty substantive result. Very similar in this instance. What you look at is what is the substance of the error, what effect does it have, did it allow a vote to be in the box that shouldn’t have been there? And our position is if a vote’s in the box that shouldn’t have been there, that takes away from the rights of every other voter that’s in that box.

Mr. Wrzesnewskyj.

Right from the beginning we’ve talked about restoring the integrity and people’s confidence in the integrity of the electoral system. So clearly, checking off a box, that’s a clerical error of no consequence. But when we have a situation where Judge Lederer found as a matter of fact that registration certificates did not exist, we have no idea who these people were? How did they end up voting?

And, finally, Mr. Opitz.

The case was argued on the basis of clerical errors by Elections Canada, the case was made for the enfranchisement of all people in the riding and that’s the most important thing is that people be enfranchised to vote. And making sure that everybody’s vote does count.