This case study considers the intersection of enfranchisement including the right to have that vote counted, safeguards to the integrity of the electoral process, judicial interpretation of the legal framework for elections and election administration, all in the context of a consolidated democracy.
The 41st Canadian General Election took place on May 2, 2011. In that election, the successful candidate in the electoral district of Etobicoke Centre won by a plurality of 26 votes in the “first past the post” election. The second place candidate applied for an annulment of the election as permitted by s.524(1)(b) of the Canada Elections Act (CEA) citing “irregularities” that “affected the result” of the election. The matter was heard before the Ontario Superior Court of Justice which granted the application, setting aside 79 votes which was greater than the plurality. Several actions where then brought before the Supreme Court of Canada (SCC) in Opitz v. Wrzesnewskyj, including an appeal of the Ontario court decision by the initial first place candidate, a cross appeal by the candidate initially in second place, and a motion by the federal Chief Electoral Officer to introduce new evidence. Ultimately, both the cross appeal and motion to introduce fresh evidence were dismissed. The appeal of the Ontario Court decision is examined further in this case study. The SCC delivered its decision on October 25, 2012. To the following: An application was then made to the Supreme Court of Canada (SCC) in Opitz v. Wrzesnewskyj appealing the Ontario court decision by the initial first place candidate. A cross appeal was also brought by the candidate initially in second place. Ultimately, the cross appeal was dismissed. The appeal of the Ontario Court decision is examined further in this case study. The SCC delivered its decision on October 25, 2012. The reason for the changes are: (i) the motion to adduce fresh evidence was not an "application" on the same scale as the appeal and cross-appeal, and in fact, the majority of the court chose not to rule on it (as opposed to dismissing it).
In determining whether to annul an election, the SCC accepted the “magic number test” which provides that an election should be annulled if the number of invalid votes is equal to or greater than the successful candidate’s plurality; although the court acknowledged that another more realistic method might arise in the future.[i] At the core of the appeal was an interpretation of what constitutes “irregularities…that affected the result of the election.” Unfortunately the CEA does not define the term “irregularities” in this context. Nevertheless, the SCC in a 4-3 ruling allowed the appeal and as a result the candidate who initially had the plurality of votes following the election, retained the victory. What makes this decision so instructive and fascinating is the discussion in the judgement of both the majority and dissenting opinions as they establish very different perspectives on what constitutes an “irregularity…that affects the result” of an election. This discussion goes to the very heart of democratic practices.
Essentially, the appeal was grounded in a number of procedural errors by poll officials at the voting place. No allegations of fraud or such wrongdoing were made in the case. Should votes cast be set aside because the process was not followed properly by officials and what is the test? Referring to earlier decisions of lower courts, in effect the majority decision differentiated that:
Under the strict procedural approach, a vote is invalid if an election official fails to follow any one of the procedures aimed at establishing entitlement. Under the substantive approach, an election official’s failure to follow a procedural safeguard is not determinative. Only votes cast by persons not entitled to vote are invalid. The substantive approach should be adopted, as it effectuates the underlying Charter right to vote, not merely the procedures used to facilitate that right.[ii]
As might be expected in the case of a SCC decision, both the majority and dissenting arguments are precise and have merit. It seems that each view, in its own way, seeks to balance enfranchisement with the need to safeguard the process.
In the majority, the SCC established a two part test requiring an applicant to demonstrate that a breach of a statutory provision intended to establish the voter’s entitlement to vote had taken place and that a person who voted was in fact not entitled to vote[iii] (i.e. at least 18 years of age, a Canadian citizen and resident in the electoral district). Together, these two aspects if satisfied would establish an “irregularity” that “affected the result” of the election. This reflects the “substantive” approach favoured by the majority.
In dissent, as presented by the Chief Justice, the argument was advanced that the “entitlement” to vote was much broader than suggested by the majority and in fact was comprised of three prerequisites: qualification (Canadian citizen and 18 years of age or older), registration (generally either by being on the list of electors or filing a registration certificate) and identification (properly identified at the polling station whether by providing appropriate pieces of identification or by taking an oath and being vouched for by another elector).[iv] The registration and identification requirements were seen as fundamental safeguards for the integrity of the electoral system.[v]
The majority view begins from the perspective that an election should not be set aside lightly; a view that is echoed in international election standards. The majority also began their analysis with Section 3 of the Canadian 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 Commons or of a legislative assembly and to be qualified for membership therein.”[vi] A fundamental purpose of the CEA therefore is to give effect to universal suffrage. However, “While enfranchisement is one of the cornerstones of the Act, it is not free-standing. Protecting the integrity of the democratic process is also a central purpose of the Act.”[vii]
Nevertheless, administrative error should not be easily allowed to dismiss or undermine the fundamental right to vote; “If elections can be easily annulled on the basis of administrative errors, public confidence in the finality and legitimacy of election results will be eroded.”[viii] And errors there will be. The majority recognized that by definition, the workforce at an election is broad and of limited experience simply because of the nature of the event and so mistakes will happen. This is not to say that procedures should not be followed as they do serve an important purpose safeguarding the integrity of the process and electoral authorities should do all that is possible to see this happens. While, “The procedural safeguards in the Act are important; however, they should not be treated as ends in themselves.”[ix] The bottom line seems to be that the right to vote established in the Charter of Rights and Freedoms is paramount. The majority could not countenance the disfranchisement of every voter who voted as a consequence of setting aside a small number of votes where procedural errors took place. In addition, if procedural errors can be the basis of the annulment of an election, then the majority anticipated with concern that lightly overturned elections could increase the “margin of litigation” meaning election outcomes close enough to result in post-election legal action[x] even as losing candidates use the process to find technical administrative error seeking to get a second chance.[xi] Unless an applicant can establish that a procedural breach occurred and establish a vote was cast by someone not entitled to vote then the vote will be counted.
The dissenting opinion identified other core objectives of the CEA and disagreed that voter “entitlement” was so narrowly defined. In the dissenting view, “The overarching purpose of the Act is to ensure the democratic legitimacy of federal elections in Canada… A second and complementary objective is to ensure that people who are not qualified to vote do not do so… A third objective is to promote efficiency and certainty in the electoral process.”[xii] As a requisite for the “entitlement” to vote, the CEA provides that registration and identification must also be established for a good reason, namely, “They are fundamental safeguards for the integrity of the electoral system.”[xiii] In dissent it was argued that without such safeguards, public confidence in the electoral system would suffer. Taken together it was the conclusion of the dissenting view, “that “irregularities” under s. 524(1) (b) should be interpreted to mean failures to comply with the requirements of the Act, unless the deficiency is merely technical or trivial.”[xiv] Not all procedural errors would result in votes being set aside; non-compliance of a “technical or trivial” nature would not be set aside as “irregularities”. The onus, the minority agreed, rests with the applicant to establish “irregularities” and that the “irregularities” affected the result of the election sufficient to annul the election.
So depending on your point of view, this SCC decision either reaffirms the primacy of the fundamental right to universal suffrage or the decision sets the system on a “slippery slope” where system integrity may be eroded. In the days after the decision, the press reflected both points of view. Either way, however, there are a number of instructive aspects to this decision in terms of the legal framework for elections.
First off, it should be noted that the system allowed for an expedited consideration of the application for annulment of the election right up to the highest court in the land. Secondly, although there are differing opinions about the substance of the decision, there is broad acceptance of the independence of the SCC dealing with such an essentially partisan matter as the election of a Member to the House of Commons. The well-reasoned, albeit widely diverging, views of the court also may prompt a meaningful discussion about what the law should require and possibly result in legislative amendments. In late September 2012, Chief Electoral Officer Marc Mayrand is reported to have said, “While we can make administrative changes to enhance our processes, these likely won’t be enough. Legislative changes may also be necessary to respond to Canadians’ concerns regarding the electoral process and make the system less prone to errors.”[xv]
Particularly in matters as ultimate as the potential annulment of elections, the legal framework should strive to be as clear as possible when defining the grounds. If that is not the case then as this appeal demonstrates, even judges of the highest court may arrive at fundamentally different interpretations.
There are also lessons to be learned regarding the recruitment, training, supervision and audit of election day workers; matters which Elections Canada already appears to have well underway. It was reported that in May 2012, Chief Electoral Officer, Marc Mayrand, “told the House of Commons Procedure and House Affairs Committee that Elections Canada will have to revisit its processes for recruiting and training workers, and their compliance with procedures at polling stations.”[xvi]
Political party and candidate representatives at the voting place will also continue to play an important role. At the end of the day, however, any electoral process will include some mistakes by officials and the key is to ensure that the legal framework is as precise as possible and provides an efficient, and clear means for resolving disputed elections in a way that will maintain public confidence in the legitimacy of the election.
[i] Supreme Court of Canada. Opitz v. Wrzesnewskyj. 2012 SCC 55, (71-73).
[ii]Ibid., 6.
[iii] Ibid., (58-59).
[iv] Ibid., (139).
[v] Ibid., (140).
[vi] Ibid., (27).
[vii] Ibid., (38).
[viii] Ibid., (2).
[ix] Ibid., (34)
[x] Ibid. (49).
[xi] Ibid., (56).
[xii] Ibid. (145).
[xiii] Ibid., (140).
[xiv] Ibid., (148).
[xv] Stechyson, Natalie. “Court case casts pall on Canada’s sterling election reputation.” The Gazette, October 21, 2012.
[xvi] Ibid.
