Thursday, October 25, 2012

Opitz v. Wrzesnewskyj, 2012 SCC 55

The court split on the decision about the Etobicoke Centre with Rothstein, Moldaver, Deschamps and Abella finding for the appellant and McLachlin, LeBel and Fish against.  Two of the judges on the Supreme Court of Canada at the time of the case did not take part in the decision.

Finding for the appellant means not overturning the election results and Ted Opitz continues as the MP.

Of the seven judges ruling on the decision, three were appointed by Chretien, two by Harper, one by Martin and one by Mulroney.   The two judges appointed by Harper, Rothstein and Moldaver, both ruled for the appellant Opitz.  While I do not think who appointed them made a difference in this decision, I do think it is important for people to understand that the appointment of judges in Canada is not a neutral act and in the case of the Supreme Court of Canada the decision process is very clearly part of Canadian politics.

The case revolved around voting irregularities in the 2011 election in Etobicoke Centre.  An irregularity does not mean someone voted that should have not have, thought that could be the case.   There are many irregularities in elections because there is a lot of paper involved and lot of one day staff that are learning on the job.  One of the reasons political parties have scrutineers is to watch over the registration of new voters, ensure people that should be able to vote can vote, and make sure the people that are voting are the ones entitled to on the voters list.   Most major parties have lawyers on call in cities across the country to help people that are denied the right to vote at the polling station.   I say all this so that people understand irregularities in elections happen all the time all over the country.
The core of the reason the Supreme Court of Canada majority ruled in favour of the Opitz is because they decided that 59 of the 79 disqualified votes should be considered.   This left 20 votes disqualified which is less than the 26 vote margin of the election.

By the majority from the decision:
For the reasons that follow, we would allow the appeal and dismiss the cross-appeal.  While we have only discussed 59 votes in these reasons, from our analysis of all of the evidence, we have no reason to believe that any of the other 20 voters did not in fact have the right to vote. 

It is important to remember we do not know how the disqualified voters voted.   The system assumes the worst case for the winner of the election that all the disqualified voters voted for the winning candidate.   Common sense tells us this is highly unlikely but because the can not know what the votes were it has to be assumed the all voted for the winner.

The minority opinion was that there were 65 votes that should have been disqualified and since this was more than the 26 vote margin, the election should be overturned.

In the end the decision goes into a lot of detail about specific irregularities and the majority and minority decide if there was a case of someone being allowed to that had should not have voted.   The majority was more inclusive while the minority was not.

What it says to me is that we really do need better procedures in elections to ensure that there is a consistency in how the regulations are applied.   It is not only with respect to voter registration, but many other issues as well.    One example I remember was in the 2011 election when I was a scrutineer during the count at a polling station.   The ballot box I was watching had a woman counting that whenever she could disqualified votes from one party but allowed the same sort of ballots for another party to be counted.   On that box alone this made a 15 vote difference.  These ballots would have been re-examined if the election had been close and there was a re-count.
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