Opitz v Wrzesnewskyj: When It Comes to ‘Entitlement’, Majority Treats That Which is Necessary as Sufficient
Last Thursday, the Supreme Court of Canada rendered its long awaited judgment in Opitz v Wrzesnewskyj,  3 SCR 76 [Opitz]. The material facts and the operative parts of the lower court decision on the matter have been covered by TheCourt.ca here and here. As a result, in this post, I focus only on the Supreme Court of Canada’s judgment.
Mr. Opitz appealed Lederer J’s Superior Court decision, which voided the results of the 2011 Federal Election in Etobicoke-Centre, directly to the Supreme Court of Canada as of right (pursuant to s. 532(1) of the Canada Elections Act, SC 2000, c 9). One need not look past the first sentence of the majority’s reasons to determine the way the 4-3 Court ultimately went:
A candidate who lost in a close federal election attempts to set aside the result of that election (emphasis added).
The Supreme Court of Canada granted Opitz’s appeal and confirmed the validity of the 2011 election.
Introduction: A Matter of Principles
Generally speaking, the decision has been welcomed favourably be the media. John Ibbitson of The Globe and Mail praised the top court’s restraint in interfering with democratic process; Macleans’ Paul Wells went even further, pointing to an emerging (and very interesting) trend: a growing ‘don’t-sweat-the-fine-print bloc’. Finally, Adam Goldenberg–a Yale Law School J.D. candidate and Ottawa Citizen contributor–hailed the decision as a triumph, demonstrating that, when contrasted with the Supreme Court of the United States’ handling of a similar problem in Bush v Gore, the Opitz case is confirmation Canadians are fortunate to enjoy a far less partisan top court.
The judgment itself raises a whole host of issues, from technical evidentiary problems to the application judge’s handling of the onus of proof, to a last minute motion by the Chief Electoral Officer to adduce fresh evidence. Instead of painfully attempting to touch on every issue, I use this post to address what I read as being the most consequential aspect of the decision: the two clear, discrete approaches the court identifies in interpreting what it means to be ‘entitled’ to vote, and consequently, what ‘irregularity’ means for the purposes of the Act.
Ultimately, while Ibbitson, Wells and Goldenberg are right to praise (to varying extents) the Court’s reluctance to venture into electoral waters, I can’t help but find the minority’s reasons to be more compelling, especially in regard to analyzing the central issue in the case.
So, What is an ‘Irregularity’, and When Does it ‘affect the result of an election”?
Unfortunately, ‘irregularity’ is an undefined term in the Act, and its meaning is the subject of much dispute. Fortunately, however, there remains no ambiguity as to when ‘irregularities’ ‘affect the result of an election’. In determining the latter, courts are to apply what is called the ‘magic number test’ — when the number of irregularly cast votes exceeds the victorious candidate’s plurality, those irregularities have ‘affected the result of an election’.
There is also consensus surrounding the form an application to challenge the results of an election must take. As elections enjoy a “presumption of regularity” (para 169), the applicant bears the onus of proving, on a balance of probabilities, two discrete elements: first, that there were “irregularities”; and second, that these irregularities “affected the result of an election” (or, that the number of irregularities satisfies the magic number test).
What remains, then, is an appreciation of what constitutes an “irregularity.” In a general sense, both the majority and the minority agree that an irregularity is a “vote being cast that should not have been.” Hence, as McLachlin CJ righlytly notes:
The critical question raised in this case is the following: What kinds of irregularities result in a vote being cast that should not have been? (para 150).
With that, I now turn to the distinct approaches the majority and minority take to answering the “critical question.”
The Majority’s View: A Substantive Approach Informed by the Charter
The majority set a high threshold for what constitutes an irregularity. Ultimately, “irregularities” for the purposes of the Act are:
serious administrative errors that are capable of undermining the electoral process — the type of mistakes that are tied to and have direct bearing on a person’s right to vote (para 24).
In getting to this conception, the majority interprets the provisions of the Act in a way that is heavily informed by s. 3 of the Charter of Rights and Freedoms, which states:
Every citizen of Canada has the right to vote in an election of members of the House of Common or of a legislative assembly and to be qualified for membership therein.
Given that s. 3’s purpose is to promote and protect the right of each citizen to play a meaningful role in the political life of the country, and that the purpose of the Act is to enfranchise individuals, the majority adopts what they term as a “substantive approach.”
The substantive approach emphasizes the right of the elector to vote, and encourages courts to look at the whole of the evidence “with a view to determining whether a person who was not entitled to vote, voted” (emphasis added, para 57). What is more, for the majority, someone who is ‘entitled to vote’ is someone who is a Canadian citizen, is at least 18 years of age, and is a resident in the polling division in which the voter is seeking to vote.
In sum, then, an “irregularity” under the substantive approach is a serious administrative error or breach of a statutory provision designed to establish entitlement to vote (as defined above). A failure to meet other procedural safeguards that do not directly go to determining entitlement, then, are not determinative.
The Minority’s View: A Complete Understanding of Entitlement
The minority opinion, penned by the Chief Justice, takes a broader approach to understanding what it means to be “entitled to vote” under the Act. As the minority rightly notes, “An individual must be entitled to vote before casting a ballot” (emphasis added, para 139) and there are three prerequisites to entitlement under the Act—qualification, registration, and identification. Each of these three prerequisites are necessary conditions to entitlement, and no single one is sufficient.
“Qualification” refers to those basic requirements described above: being a Canadian citizen, being at least 18, and residing in the appropriate polling district.
“Registration” refers to either having one’s name on the list of electors, or filling out a “registration certificate” (paras 155-58).
Finally, “identification” refers to either producing the necessary documents—a valid, government issued I.D.—or alternatively, taking an oath and having someone else vouch for you. According to the provisions of the Act, it is only when an individual satisfies all three criteria that they are entitled to vote.
As should be apparent, the majority treats the “qualification” criteria as sufficient for determining entitlement. This is problematic and McLachlin CJ rightly criticizes the majority for such at para 164.
From a purely legal standpoint, there are good reasons for favouring the minority’s approach to “entitlement” and, consequently, to what constitutes an “irregularity.”
First, the minority’s approach is a more accurate application of time-honoured principles of statutory interpretation to the Canada Elections Act. The provision of the Act that the majority largely relies on to arrive at its conception of “entitlement” (s. 6), for example, begins with the words “[s]ubject to this Act,” but the provision is nonetheless treated as absolute on the concept of entitlement.
Second, the minority’s approach avoids placing undue weight on the right to vote as contained in the Charter. Most obviously, this was not a case where the Charter was directly implicated. The democratic values embodied in the Charter already inform the Act, and in my view, this is a case that could have been sufficiently disposed of without resort to the Charter (it should be noted that the minority did not cite the Charter).
Finally, a comprehensive definition of entitlement (and thus, a broader notion of “irregularities”) probably more closely accords with Canadians’ views on how elections should be run and how votes should be cast. While yes, the Act should be read as much as is possible to enfranchise voters, that is not to say that one should go so far as to permit an individual to vote without properly identifying themselves, so long as it is sorted out later. These are not petty “technical breaches,” but in a very real way go to the heart of protecting the integrity of the democratic process.
I have chosen to focus here on the principles of statutory interpretation and their actualization in this case because, as an application authorized by and entirely dependent on the reading of a statute, I believe those principles to be of primary importance. More generally, whether it was a good thing or a bad thing that our highest court of law declined to disturb the results of an election is a separate, purely normative question. On that one, I’ll defer to the pundits.