—Michael Pal, SJD Candidate and Trudeau Scholar, Faculty of Law, University of Toronto
Prior to yesterday’s eagerly anticipated decision in Opitz v. Wrzesnewskyj, 2012 SCC 55 [“Opitz”], the Supreme Court of Canada had not been called upon to resolve a disputed election since 1942, when the Court annulled the result of a federal district election.
Opitz clarifies how courts should approach challenges to election results under the Canada Elections Act [the “Act”]. The 4-3 decision by the Court, however, suggests that the law in this area is far from settled.
Opitz raises normative questions about the meaning of voting as well as institutional ones about how best to swiftly and correctly determine election results.
First, a bit of background: Conservative Party candidate Ted Opitz was declared the winner in the Toronto riding of Etobicoke Centre in the federal general election of May 2011. He defeated the incumbent Liberal MP Borys Wrzesnewskyj by only 26 votes. Mr. Wrzesnewskyj sought an annulment of the election in the riding under the procedure set out in the Act for “irregularities….that affected the result of the election” (s. 524(1) (b)). Justice Lederer of the Ontario Superior Court found that 79 ballots out of 52,794 cast constituted irregularities and annulled the election (2012 ONSC 2873). Mr. Opitz appealed directly to the Supreme Court under the expedited procedure for election disputes (s. 531 (1)), directing the case be heard “without delay and in a summary manner” (s. 532 (2)). The Court deviated from its usual summer break to hear the appeal on July 10, 2012.
The four-Justice majority overturned the lower court and held that Mr. Opitz was the winner. The majority looked at 59 of the 79 ballots deemed problematic by the lower court and found these ballots were not “irregularities”. The total number of invalid ballots was at most 20, which was less than Mr. Opitz’ 26 vote plurality. In order to resolve the dispute immediately, the majority opted to declare Mr. Opitz the victorious candidate rather than remit the case to the application judge. The dissent authored by Chief Justice McLachlin considered 65 votes as irregularities and would have annulled the election.
Yet the precedential value of Opitz is undermined by the majority’s ambivalent use of the “magic number” test (para 73). If the number of invalid ballots is the same or greater than the winner’s plurality (26 in this case), then the election is annulled. Both the majority and minority used the test, but the majority raised serious doubts as to whether it will be appropriate in future cases because of the secret ballot (para 73). The magic number test “assumes that all of the rejected votes were cast for the successful candidate….[which] is highly improbable” (para 72). It is unclear whether the next disputed election will turn on the “magic number” and what are the potential alternatives. The majority suggested only that some kind of statistical test would be desirable (para 72).
The Court was divided over the proper approach to be adopted. The majority defined the choice as between a substantive approach and one emphasizing a strict procedural view (paras 54-55). The majority opted for the substantive reading. The majority held that tolerating technical errors of statutory non-compliance was preferable to overturning an election and eroding “public confidence in the in the finality and legitimacy of election results” (para 2). As long as ballots were cast by individuals who met the requirements of age, citizenship and residence, the majority was unconcerned by violations of the procedures for registration and identification set out in the Act.
The minority saw democratic values being furthered by having a narrower definition of what counts as a valid ballot. Though the minority would not annul elections for technical or trivial breaches, it adopted a procedural definition of what counts as a valid ballot tied to the terms of the Act (para 148). Votes are only valid if the elector was duly qualified, registered, and identified in accordance with the Act.
The majority’s approach of tolerating a certain amount of inevitable errors appears appropriate in cases involving irregularities. As the right to vote is a fundamental one guaranteed by the Canadian Charter of Rights and Freedoms, courts should interpret the Act to facilitate exercise of the franchise. Voters should not be disenfranchised because of technical breaches of the Act committed by polling station workers in the absence of fraud or partisan abuse.
Where “fraud or corrupt or illegal practices” (s. 524 (1) (b) are concerned, however, courts may need to be more vigilant along the lines expressed by the minority. As the decision was restricted to cases involving inadvertent errors, it did not resolve the approach to be taken where there has been fraud or corrupt or illegal practices. This issue is of great relevance to the “robocalls” case underway in federal court, where voter suppression by misleading automated phone calls is being alleged in six ridings in the last election.
Canada’s relatively permissive rules on election-day voter registration are the underlying cause of most of the disputed ballots (s. 161 (1) ). Election-day registration maximizes the opportunity for eligible voters to cast a ballot consistent with an understanding of the right to vote as fundamental, but may lead to increased instances of non-fraudulent errors. Despite its benefits, election-day registration may be an inadvertent casualty of the Etobicoke Centre case, if the government is inclined, as it appears to be, to respond to the flaws exposed in election administration by eliminating it.
No disputed election resolved by the courts can escape being compared to Bush v. Gore. Opitz was most definitely not Canada’s Bush v. Gore moment of law being subsumed by politics. The four-Justice majority consisted of two Liberal and two Conservative appointees. Another distinction is that despite extensive media focus on the case, the stakes were relatively low compared to Bush v. Gore. The nightmare scenario for the Court is an election dispute where the fate of the government is in doubt, which is a distinct possibility given the string of minority governments up until the 2011 election. Thankfully, the Court was spared at least temporarily that kind of dilemma.