Judge nixes Toronto riding vote due to clerical irregularities

Enough suspect votes were cast due to clerical errors to warrant overturning last year’s federal election result in a Toronto riding, an Ontario judge said in an unprecedented ruling Friday.

The decision by Ontario Superior Court Justice Thomas Lederer upends the narrow 26-vote win by Conservative Ted Opitz over former Liberal MP Borys Wrzesnewskyj, and means a byelection will have to be called if the ruling stands.

Lederer made it clear the voting irregularities — essentially clerical errors — were not the product of fraud or other intentional wrongdoing.

“This election was conducted by responsible public officials and well-intentioned individuals, who were motivated by nothing less than a desire to do the job properly,” Lederer said in his 41-page decision.

“What this case represents is an opportunity to learn, and for the process to evolve in order to guard against the particular problems that appeared in this case.”

Among the problems the judge identified was the failure to properly register voters and a failure to properly vouch for voters who showed up to cast ballots.

As a result, he set aside a total of 79 votes — well in excess of Opitz’s 26-vote winning margin.

Fred DeLorey, a spokesman for Opitz, expressed disappointment with the decision.

“Fifty-two-thousand people in Etobicoke Centre followed the rules, cast their ballots and today had their democratic decision thrown into doubt,” DeLorey said.

“As the judge took care to point out in the decision, Ted Opitz and the Conservative campaign team followed the rules.”

Wrzesnewskyj was in Ukraine and not immediately available to comment.

During the case argued last month, Wrzesnewskyj’s lawyers argued the integrity of the electoral system depended on strict adherence to the rules, even if they are just procedural.

Liberal spokesman Dan Lauzon said the decision “certainly vindicates” Wrzesnewskyj’s claims.

The party was ready for a byelection “should that be the outcome of this decision and any appeals,” Lauzon said.

Wrzesnewskyj’s challenge to the results — unrelated to the robocall and voter-suppression scandals — was the first time a court was asked to rule on a contested election under Part 20 of the Canada Elections Act.

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

Chief electoral officer Marc Mayrand argued the provisions should only be used in serious cases of impropriety and that procedural errors simply didn’t warrant setting aside the election result.

Lederer disagreed.

The court, the judge said, walked a “thin line” between ensuring the integrity of the system while also ensuring that no eligible voters are disenfranchised simply because of clerical errors.

However, there were “fundamental” requirements needed to retain confidence in the system, among them one that those who vote are qualified to do so.

“If we give up these foundations of our electoral system, we are risking a loss of confidence in our elections and in our government,” the judge said.

The last time a court overturned a federal election result was 1988, when an Ontario Supreme Court judge found enough questionable ballots in the Toronto riding of North York to nix a win by Liberal Maurizio Bevilacqua.

He won the byelection that followed.

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