Tory to take overturned election case to SCC
Published Monday, May 28, 2012 1:30PM EDT
OTTAWA - A Conservative MP whose election was overturned by a Toronto judge is appealing the case to the Supreme Court of Canada.
Only five election results have been nullified by the courts since 1949; none of those rulings were appealed and byelections were quickly called to re-determine the will of the people in each riding.
But Ted Opitz said Monday he's exercising his automatic right to appeal to the top court because he has an obligation to the 52,000 people in his Toronto riding of Etobicoke Centre who "followed the rules and cast their ballots."
"Their democratic choice has been called into question by the decision relating to 0.15 per cent of those ballots," the MP said in a statement.
"It is in the public interest that election results be respected and that voters not be disenfranchised."
Opitz won Etobicoke Centre by just 26 votes over Liberal Borys Wrzesnewskyj. The loser went to court, claiming procedural irregularities.
Earlier this month, an Ontario Superior Court judge found that Elections Canada officials made clerical errors at the polls. Justice Thomas Lederer threw out 79 votes and overturned the final result.
Wrzesnewskyj called the appeal a "stall tactic" that will leave Etobicoke Centre voters in limbo, potentially for months.
"The legitimacy of the outcome is in question here. We don't know what the will of the people was so something was taken away from all 50,000 voters who did play according to the rules," he said in an interview.
Under the Canada Elections Act, the Supreme Court is required to hear an appeal of a contested election result "without delay and in a summary manner."
Andres Garin, the court's executive legal officer, couldn't give firm details of how the case will be handled, noting this is the first time the top court has been involved in a contested election. But he said he imagines the court will set a date for a hearing after consulting both parties in the case.
The court is sitting in June but Garin suspected the parties might want more time to prepare, which would most likely mean no hearing until the fall. He said a hearing during the summer, when the court normally does not sit, is possible but "highly unlikely."
Noting that the case has been before the courts for a year already, Wrzesnewskyj said he's instructed his legal team to push for a hearing in June. He urged Opitz to do the same, although he doubted the Tory will be in any rush.
"The democratic process is in tatters and we need to restore the integrity of the system so that people have confidence in our democracy," Wrzesnewskyj said.
"We need to fix it and it needs to be fixed as soon as possible."
In the meantime, Wrzesnewskyj said Opitz should sit out votes in the House of Commons.
"It's mind-boggling to think someone that's been found to not legitimately represent the will of the people in an election, that that individual could continue taking part in votes in the House of Commons and votes in committees. That's a terrible precedent."
The Etobicoke Centre result was overturned on the basis of improperly filled out paperwork for voters left off the list of electors or who needed someone to vouch for their identity. In his ruling, Lederer specifically stressed the irregularities were the result of clerical errors by well-meaning Elections Canada officials, not the product of fraud or intentional wrongdoing.
However, since then, Wrzesnewskyj has resurrected other more serious allegations of ballot-box stuffing and voter suppression by Opitz's campaign, though nothing has been proven.