There’s no better way to characterize the agency’s role in the high-stakes Etobicoke Centre by-election appeal heard by the Supreme Court of Canada earlier this week. The “independent” and “non-partisan” agency responsible for conducting federal elections and referendums in Canada is unequivocally siding with Ted Opitz, the Conservative MP who filed the appeal.
Opitz is seeking to stop the by-election, which the Ontario Superior Court ordered in the spring. Should the Supreme Court allow the Conservative Party of Canada and Elections Canada to prevail, Canadians might as well abandon their quest for voter justice on the robocalls election scandal.
The case is complicated. Very.
Opitz “won” the Greater Toronto riding with just 26 votes over Liberal incumbent Borys Wrzesnewskyj during the 2011 federal election. This past spring, Wrzesnewskyj successfully challenged the results before Justice Thomas Lederer of the Ontario Superior Court. He alleged that he was prejudiced due to ballot-box stuffing and voter suppression by Opitz’s campaign. He also alleged procedural irregularities and clerical errors by Elections Canada staff overseeing the election.
Justice Lederer decided that 79 of the votes cast were invalid. That’s three times Opitz’s 26-vote winning margin. The judge declared Opitz’s election null and void. And ordered a new election.
But Opitz petitioned the Supreme Court of Canada to reverse the lower court’s judgment. And on Tuesday, the nation’s highest court interrupted its summer break to hear Conservative’s appeal. It reserved judgment.
Like I’ve already said, this case is complicated.
What’s clear, though, is that scores of voters in Etobicoke Centre were disenfranchised. Scores were denied their constitutional right to choose their own representative. Justice Lederer’s decision to order a fresh election clearly suggests that the irregularities in the election affected the outcome. That as voters were disenfranchised, Opitz unduly benefited.
But somehow, the case before the Supreme Court has been reduced to Elections Canada’s clerical errors, and that seems to have changed everything. Elections Canada is defending itself – by appealing the Ontario Superior’ Court’s decision. In other words, the agency is seeking the same outcome as Opitz and the Conservatives: a nullification of Justice Lederer’s judgment.
In essence, Elections Canada is defending Opitz’s cowardly attempt to avoid having to fight another election. It’s defending our defective winner-take-all electoral system, which allows a candidate who wins by even one vote to sit in Parliament. And, as part of its defense, the agency even wants us to believe that Canada’s “voting system is indeed run fairly and properly.”
But here’s where it gets really interesting. Elections Canada has unearthed new evidence suggesting that 44 of the 79 votes Justice Lederer tossed out were indeed valid. According to the Toronto Star: “This new evidence emerged only at the eleventh hour, in a motion filed last Thursday in Ottawa.”
As you can expect, the new evidence has become ammo for the Conservatives, who are now arguing that “this new discovery means that the 2011 results should stand — that the Superior Court went too far in ruling Etobicoke Centre results null and void.”
Furthermore, the Conservatives want us to believe that overturning the Etobicoke Centre result would undermine the public’s “confidence in the electoral process and Parliament itself.” Why? Because it would awaken Canadians to the possibility of defending their inalienable right to vote by legally challenging improperly-run elections.
The integrity of our voting system is at stake here. So is that of Elections Canada.
The agency’s position isn’t just about Etobicoke Center. It reflects the agency’s position on the robocalls election scandal. During the May 2011 Federal election, scores of voters in more than 200 riding received misleading live calls and fraudulent pre-recorded calls that redirected them to the wrong polling stations. Ironically, some of the callers claimed to be from either Elections Canada. Others, from Conservative Party of Canada.
More than 40 000 Canadians have signed petitions demanding an independent public inquiry into the scandal. In an Ipsos Reid poll on the scandal, conducted for Postmedia News and Global TV in March, a whopping 68% demanded new by-elections in all affected ridings.
The Council of Canadians recently announced that it is currently supporting individuals in seven ridings who are challenging the results under the Canada Elections Act. “The legal actions to annul results are based on evidence of irregularities, fraud and other activities which affected the outcome of the elections,” the organization said.
So far, Elections Canada has given us the impression that it will impartially investigate the scandal. The agency is reportedly reviewing more than 31,000 robocalls reports. It has earmarked some $585,000 to probe the scandal. Can we really trust Elections Canada to do a fair and impartial job? To run free and fair elections in Canada?