In a split 4-3 decision, the Supreme Court today issued its decision in Opitz v. Wrzesnewskyj, a case concerning procedural irregularities found following the May 2011 election in the riding of Etobicoke Centre. CCLA is disappointed in the outcome of the case and has concerns about the decision’s impact on public confidence in the Canadian electoral process.
Following the May 2, 2011 federal election, a candidate in the riding of Etobicoke Centre, Boris Wrzesnewskyj, brought an application under the Canada Elections Act contesting the election. Ted Opitz had won the seat by 26 votes. Justice Lederer of the Ontario Superior Court found 79 ballots to be invalid due to irregularities that went directly to the qualification of voters to vote in that election. Since the number of invalidated votes exceeded the margin of victory, the judge voided the result and declared the seat vacant. Mr. Opitz appealed the decision.
The Canadian Civil Liberties Association intervened in order to ensure that the right to participate meaningfully in the election process is protected with regard to the interpretation of the Canada Elections Act in the context of elections contested based on “irregularities.” CCLA sought to safeguard electoral rights that are found in section 3 of the Canadian Charter of Rights and Freedoms, including the right of all Canadians to be represented by the candidate duly elected by a majority of voters entitled to vote in a particular riding, and the entitlement of voters to certainty and confidence in the result of an election.
CCLA argued that, where there is a failure to follow the legislation, the effect of which, on a balance of probabilities, calls into question whether a candidate was elected by a majority of qualified voters in that riding, the seat must be vacated and a by-election must be held without delay. It is essential that the principles of Canada’s constitutional, parliamentary democracy are upheld.
The majority and minority decisions offer competing visions regarding the regulatory framework surrounding the right to vote. The majority of the Supreme Court of Canada held that the irregularities complained of were not sufficient to invalidate the election result and that there should be a strong presumption that everyone who voted had the right to vote in that riding.
The minority point of view, which is CCLA’s position, is that the legitimacy of the Parliamentary system rests on demonstrated compliance with electoral rules. These rules should be fairly and consistently applied and should ensure that only those qualified to vote do vote. Electoral systems can be manipulated and proper compliance with electoral rules are vital.
>> For a copy of the Supreme Court’s decision, click here
>> To read CCLA’s factum, click here
>> To read CCLA’s press release regarding our intervention in the case, click here
>> To watch a webcast of the hearing, click here
