Procedural irregularities shouldn't be sufficient grounds to overturn the results of an election, Canada's elections watchdog is arguing in a potentially precedent-setting court hearing.
Chief electoral officer Marc Mayrand makes the argument in a factum filed in response to a defeated Liberal MP's attempt to invalidate the results of last May's election in his Toronto riding.
Borys Wrzesnewskyj maintains at least 181 voters were improperly allowed to cast ballots in Etobicoke Centre, in some cases possibly more than once. Mr. Wrzesnewskyj lost by just 26 votes to Conservative Ted Opitz.
His case, to be heard Monday, marks the first time a court has been required to rule on a contested election using Part 20 of the Canada Elections Act, which was added by Parliament in 2000. It stipulates that an elector or candidate may seek to invalidate an election in a riding if "there were irregularities, fraud, corrupt or illegal practices that affected the results of the election."
Mr. Mayrand argues that Parliament intended the provision to be applied sparingly.
"It is important that elections not be overturned lightly," he says in the factum.
He says Parliament recognized that "administrative and clerical errors in elections will be common and, indeed, inevitable and it is essential that only those consequential to the result be used to overturn an election."
Mr. Wrzesnewskyj's complaint revolves primarily around voters whose names were not on the list of registered voters or who didn't have the proper identification when they showed up to cast their ballots. They were issued registration certificates or had another person vouch for their being qualified voters.
Mr. Wrzesnewskyj maintains there were problems with the certificates and vouching records, some of which seem to have gone missing entirely. Forms were not filled out correctly, names, addresses and/or signatures were not supplied, leaving doubt as to whether the individuals had been properly identified as eligible to vote.
He contends dozens of voters were allowed to vote in polling divisions in which they didn't reside and at least two listed an address outside the riding altogether. He further contends that some people given registration certificates at one polling station were already on the voter's list in other polling divisions and that at least five appear to have voted twice.
In an interview, Mr. Wrzesnewskyj said he's served as an international election observer, trained by Elections Canada to be a stickler for following proper procedure. The procedural safeguards are vital, he said, to ensuring election outcomes can't be skewed by people voting multiple times.
Mr. Mayrand acknowledges in his factum that certificates, vouching and other procedural requirements are procedural safeguards designed to preserve the integrity of elections. But he argues that failure to fill out all the forms properly should not automatically result in invalidating those ballots.
"The importance of the safety net should not trump an elector's right to exercise his or her vote."
Mr. Mayrand also raises concerns about the precedent the Wrzesnewskyj case could set if the court rules that badly-filled-out paperwork is grounds to overturn an election.
"It would also mean that the more safeguards that are put in place (such as voter identification rules that were implemented in 2007), the more likely it is for an election to be overturned."
Mr. Mayrand's arguments are echoed in a factum from Mr. Opitz. Given that the provision regarding irregularities also refers to serious offences such as fraud and corruption, all punishable by imprisonment, the MP says: "It strains credibility to say that 'irregularity' includes trivial non-compliances with the Act, mistakes, errors and other actions that are unintentional.
"It would be absurd to think that Parliament intended to disenfranchise an elector who complied with all the requirements of the Act to register to vote but for the election official (who) forgot to tick a box on a registration certificate."
As to whether the irregularities might have affected the outcome of the election in Etobicoke Centre, Mr. Opitz argues one can't assume the questioned ballots were all cast for the winning candidate. In a number of cases, he notes that Mr. Wrzesnewskyj had Liberal scrutineers in the room who did not challenge the eligibility of the voters the former MP is now trying to disenfranchise.
Moreover, he analyses each of the irregularities cited by Wrzesnewskyj and concludes that in most instances, voters were eligible to vote. For instance, those who did not live in the polling division in which they voted, simply went to the wrong polling station, often in the same building as their correct polling station.
As for the two voters whose address was written down as being outside the riding, Mr. Opitz says he's obtained certified titles showing that they had purchased property in the riding a week before the election. He says the returning officer has confirmed that in providing identification, the voters may have produced driver's licenses with their old address, as well as another piece of ID with their new address and that the poll clerk may have mistakenly written the old address on the registration certificate.
Mr. Opitz also challenges Mr. Wrzesnewskyj's suggestion that five voters cast ballots twice in one poll. He says the former MP is not counting five voters whose names were crossed off the list of electors but with no corresponding check mark in the "voted" column to indicate they actually cast ballots — a possible clerical error.
However, Wrzesnewskyj argues that the irregularities found in only 10 polls suggests a serious pattern of irregularities — "and potentially fraudulent" activity — that calls into question the outcome.
"Given the number of irregularities and issues discovered in only 10 polls, there is substantial reason to have lost confidence in the integrity of the election in Etobicoke Centre," he says in his factum.