BULLETIN: Supreme Court Rules in Opitz v Wrzesnewskyj, No Byelection in Etobicoke-Centre

Today, at 9:45 AM, the Supreme Court of Canada rendered judgment in Opitz v Wrzesnewskyj 2012 SCC 55. The case was launched by defeated Liberal incumbent Borys Wrzesnewskyj, who lost his Etobicoke-Centre seat in the 2011 Federal election to Conservative Ted Opitz by 26 votes.

Wrzesnewskyj and his lawyers were able to convince Justice Lederer of the Ontario Superior Court of Justice that, as a result of irregularities at a number of polling stations, at least 79 votes had been compromised. In some cases, individuals were able to vote without properly registering; in others, individuals were able to vote without being properly vouched for. Perhaps most troublingly, it appears that at least five individuals voted twice. As the number of impugned votes (79) exceeded the margin of victory (26), Justice Lederer applied the ‘magic number test’ and ruled that the results of the election were null and void and ordered a byelection be called.

On an appeal directly to the Supreme Court, a majority of the bench in a 4-3 decision granted Opitz’s appeal and overturned Justice Lederer’s decision.

In doing so, the majority took a more restrictive view of what constitutes an “irregularity”, and ultimately concluded no more than 20 votes were compromised.

[60] An “irregularity” constitutes evidence from which it may be inferred that a voter was not entitled to vote, because it is a breach of a procedure designed to establish the voter’s entitlement.  As indicated, proof of an irregularity may itself be sufficient to show that an invalid vote was cast, thereby affecting the result of the election.

[…] [77] Before turning to the evidence of the particular polling divisions, it is important to observe that in support of his position that the election should be annulled, Mr. Wrzesnewskyj relied entirely on circumstantial evidence.  There is no direct evidence that any votes, including the 79 that the application judge set aside, were cast by someone who in fact was not entitled to vote.

[78]  In the end, for reasons that will become apparent, we are satisfied that the application judge wrongly set aside at least 59 votes.  Therefore the magic number test is not met, as the remaining number of votes invalidated (not more than 20) is not equal to or does not exceed the plurality of 26 votes. (emphasis added).

At the heart of the decision is the Court’s preferred approach to determining an ‘irregularity’. The majority identified two approaches — the first, a “strict procedural approach”, states:

“…Under that approach, all votes cast pursuant to an irregular procedure were held to be invalid.  The failure to comply with a procedural step aimed at determining entitlement was considered to directly affect the result of the election.”

The second approach, a “substantive” approach, sets a higher threshold for what constitutes an irregularity:

[55]  A second approach, sometimes referred to as the “substantive” approach, emphasizes the substantive right of the elector to vote…  On this approach, failure to follow a procedural safeguard is not determinative of whether the result of the election has been affected.

[…] [57]   The substantive approach is recommended by the fact that it focuses on the underlying right to vote, not merely on the procedures used to facilitate and protect that right.   In our view, an approach that places a premium on substance is the approach to follow in determining whether there were “irregularities . . . that affected the result of the election” (emphasis added).

More to follow.