The Sixth Estate

Today the Supreme Court of Canada ruled that the law governing Canada’s elections is less important than the principle of elections: that everyone has the right to vote, even if they blatantly fail to demonstrate the proof of residency which the law says they must provide in order  to vote, and even if the court’s own self-imposed rules prevent it from fully reviewing evidence of situations like this. As a result, Conservative MP Ted Opitz will keep his seat in Parliament in a 6-vote squeaker of a victory over his Liberal opponent, and the very well-written ruling by a lower-court judge has been tossed out.

Let’s be clear: there is a real principle at stake here. On the one hand, we have laws governing elections to ensure they are conducted fairly and to eliminate chances for election fraud — something the Conservative Party, for one, has already been convicted of in respect of previous elections. On the other hand, following the rules rigidly can prevent fraud, but it can also mean that some people who had the right to vote could wrongly lose that right. In this case, the Supreme Court argued that the second principle outweighted the first principle. The lower court judge went the other way. On that level, democracy was not going to lose as a result of this ruling.

All of that said, the ruling stinks. It doesn’t help that in a case involving the future of a Harper government MP, the Harper government appointees lined up on one side of this judgement, and Chief Justice Beverley McLachlan was on the other side (along with a couple of other, also non-Harper appointees). The deciding vote was cast by Justice Marie Deschamps, who isn’t actually a Supreme Court justice any longer: she retired shortly after the case was heard.

Edited to add: This was a split 4-3 ruling. Deschamps and Rosalie Abella (Liberal appointees) sided with Rothstein and Moldaver (the Harper appointees); McLachlan was joined by Louis LeBel and Morris Fish (all Liberal appointees).

Inevitably, in a case like this, there will be partisans on both sides who will form equally firm snap judgements about the verdict without bothering to read it. There will also be a small army of highly paid professional columnists who write sage advice about the political implicatios of this ruling without reading it. Turn to any “newspaper of record” if you want that. If you’re here, I assume it’s because you want to read what the ruling actually said, and form your own informed opinion about it.

So to that end, let’s get started.

To begin with, both rulings are available online, free of charge. The Supreme Court of Canada ruling is available here, and the lower federal court ruling is available here.

Briefly, a retired Conservative military officer ran a hotly disputed campaign in Etobicoke Centre last year, and defeated Liberal ex-MP Borys Wrzesnewskyj by just 26 votes. There were a wide variety of allegations asserted in Opitz’s slim victory, ranging from the mysterious misplacing of a substantial number of Elections Canada voter registration forms to at least one documented instance in which Opitz’s campaign personnel overran and temporarily shut down polling stations. (Just for the moment I’m putting this in the worst possible terms mainly to show up the pathetic state of Canadian democracy: if you heard that a military officer’s supporters had stormed a polling station in a Third World country, you would already have formed your opinion about the legitimacy of the process, wouldn’t you?)

Wrzesnewskyj went to court to challenge the results, and, under pressure from the court and his opponent, agreed to a compromise position on the investigation: the Court would not hear evidence of actual vote fraud, just irregularities that might be the result of fraud; and its inspection would be limited to just 10 out of the 130 or so polling stations across the riding. The rationale behind this move was that the court didn’t want the investigation to take forever, and Wrzesnewskyj thought there were enough irregularities at just those polls alone that he would be able to establish that the 26-vote result was in doubt.

That lower court, whose judge was a Harper appointee, agreed with him:

At its core, this case concerns the confidence that Canadians must have in our electoral process. If that confidence is diminished, it follows that our interest in, and respect for, government will be similarly dimished. It surely follows that if people who are not qualified to vote were permitted to do so, or if there is a concern that people may have been permitted to vote more than once, confidence in our electoral process will fade.

Today, the Supreme Court — or rather, a narrow majority of the Supreme Court, mainly its Harperite contingent, allowed as it felt otherwise:

A candidate who lost in a close federal election attempts to set aside the result of that election. We are asked to disqualify the votes of several Canadian citizens based on administrative mistakes… We decline the invitation to do so. The Canadian Charter of Rights and Freedoms… [has] clear and historic purposes of enfranchising Canadian citizens, such that they may express their democratic preference, and of protecting the integrity of our electoral process… we reject the candidate’s attempt to disenfranchise entitled voters and so undermine public confidence in the electoral process.

Before we go on here, I want to highlight that last sentence. The Supreme Court is accusing the Liberal Party of attempting to “undermine public confidence in the electoral process.” Not just saying that the effect of the ruling would be to do that, but that this was the active intention of the candidate. These are highly accomplished jurists writing here: it’s safe say to say they mean what they write. It’s sad to see the court politicized in this fashion, and presumably it’s something we can come to expect with regularity under the Harper regime.

In essence, this ruling can be summarized as: prove it. The lower court found that if Elections Canada “lost” paperwork, accidentally or otherwise, and if people filled out oaths declaring things that weren’t actually true, then those count as irregularities. The majority on the Supreme Court disagrees. It argues that something is only an irregularity if the challengers can prove that there was deliberate malice at work in the losing of the paperwork, and that while the polling officers probably should have turned away some people on voting day as ineligible to vote, but once they were allowed to vote, it is too late and would be unfair for the court to go back and toss out the votes. This isn’t a minor point: if there had been voter fraud, the evidence that could be compiled against it might well be pretty much the same as the evidence that was presented in this case. And we’re not talking about destroying an election here. There would have been a new election. The will of the people in Etobicoke Centre would at all times be reflected.

Yet this new approach, the judges brazenly announce, is the only way to maintain confidence that our electoral system is run legally and fairly. Even more incredibly, in one instance (Poll 89), they introduce what seems to be the fairly novel principle that even if someone doesn’t sign a form or contract, we can safely assume they are bound by it because they probably would have signed it if someone asked them to. Yipes. Is this how the judges propose to interpret other contracts, or just ones that the government in power considers important?

Even more disturbing is the part I alluded to at the beginning: the nature of this split verdict. On the one side, so far as I can see, are the only two Harper appointees who actually cast a vote on this subject (plus two others). On the other side are the Chief Justice, and two others. Why did they take this long to come to the verdict? Why is the majority suddenly so cavalier about the law (which, as they admit, was violated routinely: they just say that the violations don’t matter)? Why would they indulge in a gratuitous slur against the Liberal candidate by accusing him of attempting to “undermine public confidence in the electoral process”? Why would they adopt such a bizarrely high burden of proof?

Now then, let’s run through the major issues which were decided today, including the decisions made by the lower court, the Supreme Court majority (including the Harper appointees), and the Supreme Court minority (including the Chief Justice).

Limited Review of Ballots

Wrzesneskyj agreed to limit the investigation to a small sample of polling stations, and to focus on voting irregularities rather than fraud allegations, in order to reduce costs, speed up the process, and on the understanding that if he could demonstrate more than 26 irregularities at those polls, there was no need to continue on and look at the others.

The Supreme Court majority dismisses the complaint without authorizing a further investigation, even though the ruling itself declines to challenge the validity of the original decision with respect to 20 of the 26 votes, leaving Opitz with a 6-vote win. So what they are saying is that even though by their own admission 20 ballots could have been cast illegally in 10 polling stations, it is inconceivable that, and not worth investigating whether, just 6 additional ballots could have been cast illegally in more than 100 other polling stations. Also, and more broadly, what this ruling implies is that there is no legal basis for a comprehensive review of voting, even in cases where fraud is suspected.

Poll 16

Registered voters without ID voted without vouching oaths — Legally, you can vote if you have no photo ID with your current address on it, but you have to have someone else vouch that you live at the address you say you live at. Here, 6 people are listed as requiring oaths, but there are no signed oaths attesting to their residency. The lower judge threw out this objection, ruling that the 6 in question might have had photo ID and a secondary ID with their current address on it, and therefore declared an oath only regarding their current address, an act which does not require a voucher.

Supreme Court majority: lower court decision stands.

Poll 21

Registered voters without ID voted without vouching oaths — 14 people did so at this poll. Six were allowed to stand because there listed as registered and had photo ID, but with no proof for their current address on it. However, 8 of the 14 had no ID with proof of address and no vouching oath, and consequently their ballots were set aside.

Supreme Court minority: lower court decision stands with respect to the 8 that counted. With respect to the 6 that were thrown out, this was proper, because “vouching was required, but did not occur.”

Supreme Court majority: lower court decision stands with respect to the 8 that counted. No comment with respect to the 6 that were thrown out.

Poll 30

Vouching was done illegally by people who did not live in the riding — According to the text of the vouching oath, the voucher swears that they live in the same riding as the voter, and that they both live in the riding where they are casting the ballot. However, two people perjured themselves by making this oath even though they did not live in the riding. The judge ruled that the four people they vouched for consequently must have their ballots rejected, since there was no valid vouching.

Supreme Court minority: these votes were properly rejected.

Supreme Court majority: no comment.

Vouchers made oaths on behalf of more than 1 person — In two cases, a voucher signed a statutory oath for two individuals. Under the law, and according to the text of the oath, you can only make one such oath, for one other voter, per election. This should have resulted in ballots being thrown out, but, the judge pointed out, the illegal oath-swearers were already caught up in the above section (they didn’t live in the riding, so they were already breaking the law anyways), and he had dispensed with the respective ballots there already.

Supreme Court majority: no comment.

Poll 31

New voter registration certificates and vouching oaths were disappeared by Elections Canada — Although 86 people supposedly voted after filling out a new voter registration certificate, only 70 such certificates were actually compiled and sent to Elections Canada. No one was added to the final list of electors at the poll, and there are no signatures on the list of people making oaths in the poll book for these 16, either. The judge threw out 15 of them, saying 1 person’s name was already on the electoral list and they could have been categorized in error.

Supreme Court majority: Although there is no evidence that the forms were actually filled out by Elections Canada, the Liberals also have no evidence that the forms were not filled out by Elections Canada, and then accidentally “lost.” Plus, most of the names of those who allegedly voted by registration certificate can be found on the registered voter lists for other polling divisions, and those might be the people who voted. Consequently the Court refused to disallow any votes.

People voted in a riding that was not their own — Two individuals cast ballots in Etobicoke Centre despite giving an address that was in a neighbouring riding. These 2 votes would have to be thrown out but, the judge pointed out, they were already among the ones for whom Elections Canada disappeared the registration certificates, so they were going to be thrown out anyways.

Supreme Court majority: These ballots are restored without comment or explanation.

Ballot count was wrong — The Liberals point out that although 332 votes were listed as being cast, only 329 votes were counted. The lower judge tentatively agreed that there was “errors on the face of the poll documents” but did not include these in his list to be thrown out.

Supreme Court majority: No comment. This may not have been appealed.

Voting at the wrong location — the Liberals pointed out that 66 people voted here illegally because they lived in another polling division. The judge ruled that their votes could stand, because even though they voted at the wrong table, they were still qualified to vote in Etobicoke Centre.

Supreme Court majority: Lower court decision stands.

Poll 83

Voting officers signed registration certificates on behalf of voters — In two cases, registration certificates were signed by poll officers who stated they were signing on behalf of an individual who was unable to sign. This was abnormal, but the judge agreed that they could stand as cast.

Poll 89

New voters did not sign their registration certificates –  There are 10 registration certificates which were not signed. The signature is what makes the oath a legal document, and consequently the lower judge found that the votes must be set aside, since the person did not actually register prior to voting.

Supreme Court majority: This is a mere “clerical error” and the 10 votes should be allowed to stand. Note what’s happening here: the court is arguing that people can be held to a declaration or contract which they did not actually sign, if there is circumstantial evidence that they might have signed it if someone asked them to. I find it extremely hard to believe that the court would feel likewise in many other situations.

Voters did not fill out registration certificates — Two people were not registered to vote showed up without ID and were vouched as okay to vote. There is no evidence they were asked to fill out a registration certificate. The judge ruled that the vouching oath was also a legal declaration of eligibility to vote, and since the oath was documented, he would accept the votes as cast.

Supreme Court majority: lower court decision stands.

Poll 174

Voters did not sign their registration certificates — There is one registration certificate which was not signed. The lower judge found that the vote must be set aside, since the person did not actually register prior to voting.

Supreme Court majority: no comment.

People who vouched were not properly identified — 8 people were vouched for because they did not have ID. The poll clerk did not say, however, who was vouched for: he just collected the names of the vouchers and wrote them down as a list without saying who they were vouching for.The judge threw out the 8 votes on the grounds that there was no way to tell who vouched for them.

Supreme Court minority: Improper vouching appears to have occurred, so it was right to toss out the votes.

Supreme Court majority: The Liberals have only improven improper record-keeping; they have not proven improper vouching.

Poll 400

Registered voters may have been vouched for, but the vouchers’ names are not properly listed by the poll clerk –This occurred in 16 cases. The judge ruled that it was a procedural error by poll officers only, and therefore allowed the ballots to stand.

Supreme Court majority: the lower court decision stands.

Poll 426

New voter registration certificates and vouching oaths were disappeared by Elections Canada — 33 people allegedly voted by registration certificate, meaning they were new voters; but their registration certificates were “lost” and never received by Elections Canada. In addition, the poll book has two pages for the signing of oaths by people who do not have proof of residency, and of others willing to vouch for them. These pages are blank. The lower judge noted that accepting these ballots would mean “finding them qualified in the face of… the absence of the registration certificates, the poll book page that should confirm the number of voters that registered is blank; the poll book pages that should record the voters who registered by vouching and those who vouched for them are blank; and the 33 people in question were not added to the final list of electors.” He threw out 26 of the 33 votes, saying that 7 of them matched names on the actual list of electors and therefore might have just been miscategorized in error.

Supreme Court minority: These votes were set aside properly.

Supreme Court majority: The Liberals have proven either that the forms don’t exist now or can’t be found now, but they haven’t proven that they never existed or were deliberately destroyed. (How could one prove this?) Consequently the votes stand.

Voters could have voted twice — The Liberals argued that 5 people in Poll 426 could have voted twice, because they were crossed off the electors list as having been given a ballot, but also, separately, filled out a new voter registration form, as though they were not on the official list. One possible explanation is a paperwork snafu; another possibility is that they voted once as an official voter, and then a second time as a “new” voter. The judge threw out this allegation, arguing it was more likely that this was simply an error.

Supreme Court majority: the lower court decision stands.

Poll 502

Vouching oaths were made by people who did not live in the same polling division as the people they vouched for — This is illegal, it says so in the vouching oath, and at this poll it happened 7 times. The judge therefore ruled that 7 votes must be thrown out.

Supreme Court minority: These votes were properly set aside.

Supreme Court majority: no comment.