Losing Etobicoke candidate challenges riding result in test of election law

A series of essentially clerical errors was enough to undermine the integrity of a federal riding’s election results, an Ontario court was told Monday.

In seeking to overturn last May’s vote in Etobicoke Centre, lawyers for the losing candidate argued the integrity of the system depends on the result being set aside and a byelection ordered.

“These are issues that affect everyone in this country,” lawyer Gavin Tighe said. “It is a true national issue.”

Former Liberal MP Borys Wrzesnewskyj lost by 26 votes to Conservative Ted Opitz in last year’s election that swept Prime Minister Stephen Harper to a majority government.

Among other things, Wrzesnewskyj maintains that Elections Canada officials may have allowed some ineligible voters to cast ballots and some may have voted twice.

“This isn’t a Liberal or Conservative issue; this is a Canadian issue,” Tighe told Ontario Superior Court Justice Thomas Lederer.

“If people have no confidence in the process, it is pretty doubtful they will participate in it.”

Wrzesnewskyj’s challenge — unrelated to the robocall and voter-suppression scandal — is the first time a court is being asked to rule on a contested election using Part 20 of the Canada Elections Act.

The section allows an elector or candidate to seek to invalidate a riding vote if “there were irregularities, fraud, corrupt or illegal practices that affected the results.”

Tighe made it clear he was not alleging fraud or corruption, but said the rules are there for a reason and have to be followed strictly.

“When you’re not governed by the rule of law, you’re governed by the rule of force.”

Lederer, who has set aside five days for the hearing, noted the public’s interest in the proceedings but appeared skeptical of the claims, suggesting Wrzesnewskyj had put forward a somewhat extreme view.

Thousands of people are involved in running elections, the justice noted.

“It would appear inevitable that some sort of mistakes are going to be made,” Lederer said.

If every close result led to a challenge, the justice said, “that can’t be something that would instill confidence.”

Outside court, Wrzesnewskyj said problems clearly exist that need addressing.

“It’s a huge opportunity to fix the system,” he said.

Many of Wrzesnewskyj’s complaints revolve around forms incorrectly filled out by polling clerks and improper vouching records for those who weren’t registered.

Lederer noted the importance of allowing eligible voters to cast ballots, a view Opitz raises in his factum.

“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.”

He also argues that many cases Wrzesnewskyj raises as suspect votes can be shown to have been legitimate.

In his factum, chief electoral officer Marc Mayrand argues the procedural errors simply don’t warrant setting aside the election result.

The Section 20 provisions should only be used in serious cases, Mayrand argues.

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