Campaign Capers: The court has spoken


The post I put up yesterday to report on the Supreme Court's ruling regarding Etobicoke Centre has been updated a couple of times with links to media coverage. There's lots there if you want to dive in and get even more detail. Short version, as you've probably heard by now: in a 4 to 3 decision the majority ruled to overturn the lower court ruling and allow the original results of the election in Etobicoke Centre to stand. A slightly longer version follows.

Outside the courtroom, Borys Wrzesnewskyj may continue to say that there's evidence of "dirty tricks" in last year's federal election campaign in Etobicoke Centre but when he challenged the results in court, he made the decision to focus on procedural errors without offering any evidence of criminal intent. When a Federal Court threw out the result, and yesterday's Supreme Court ruling overturned that decision and reinstated it, those courts were ruling on strictly procedural matters. Perhaps the most succinct summary of the majority decision is still the one in the CBC story with which I led yesterday's post.

...the Supreme Court ruled Thursday that the entitlement to vote cannot be annulled due to procedural errors and that there was a lack of evidence that most of the discarded ballots came from voters who were not qualified to vote.

The court found that it's not enough to point to paperwork that can't currently be produced, to errors in record-keeping or even to cases where people voted at the wrong polling station (though still in the correct riding). These are insufficient to deprive someone of his or her right to vote as guaranteed in the Charter of Rights.

Reviewing the disputed ballots in this context, the justices on the majority side reinstated more than enough to leave the remaining number in dispute below the original margin of victory. In so doing, they've certainly given the benefit of the doubt to those involved in the actual process by assuming good intentions on their part but the ruling seems intended to set the bar high — to force those who would challenge a result to demonstrate either an overwhelming degree of procedural irregularity or a willful attempt to subvert the democratic process.

I've seen it argued that by allowing some of those disputed votes to stand the court has been unfair to those who were turned away in the same election for lack of proper identification. But surely that's a separate fight.

By now it may have become apparent that I've been won over by the majority ruling and I'll tip my hat to Adam Goldenberg for the argument that really solidified it for me. But his piece is in the Ottawa Citizen and while I was able to read it the first time I clicked through, now it's behind the paywall. If they don't really want me to send them traffic, so be it. I'll paraphrase.

Attempts to disenfranchise voters are rampant in the U.S. and we've had a taste of that here in Canada with hints of more to come. If the Supreme Court had found it acceptable to disenfranchise Canadians for procedural reasons, it would hand a very useful precedent to those who believe the royal road to power lies in reducing the number of people who actually get to cast their ballots. Instead the majority decision holds that the fundamental right to vote trumps a lack of procedural entitlement to do so.

So a government here in Canada that wants to try to use procedure to lower the turnout does so with the knowledge that a legal challenge to its measures can use this decision as ammunition. In purely practical terms, if this is enough to make the Conservatives think twice about attempting to make it more difficult to vote then the worst I can say about it is that it's short term pain for long term gain. Of course, I'm not Borys Wrzesnewskyj and I didn't spend over $300,000 of my own money in mounting this challenge.

And so Etobicoke Centre drops off the list of "stories we're following".

As for the stories we're still following... it would seem Laura Payton at the CBC is trying to make me obsolete. Here's an offering from early this morning that provides a quick summary of the outstanding capers, complete with sub-headings. What Payton doesn't provide is the reason that the next court case of interest involves only six ridings instead of the original seven.

Someone on the CPC side decided to go back to square one and check the simple things. He struck pay dirt. It turns out the applicant challenging the result in Don Valley East didn't live there at the time of the election. She had moved a few months before — in February, 2011 — and didn't realize she had crossed riding boundaries. Since she no longer lives in that riding, she has no standing to challenge that result and would have to start over if she wanted to challenge in Don Vally West, where she now lives. So far she has no plans to do so though she stands by her claim that she received a phone call that misinformed her about her polling location.

Don Valley East is being dropped from the case. The Conservatives are arguing that the error regarding one riding somehow negates the cases in the other six but they would say that and it's an argument that's not going anywhere. IANAL but I feel pretty safe in saying that much. A key piece of evidence submitted by the applicants — the statistical study done by Frank Graves of EKOS Research — is being reworked to exclude that riding from its results and the rest of the applicants intend to carry on.

The only mention of Peter Penashue recently was this article in the Globe and Mail. It didn't really advance the story about Penashue's campaign financing but it did provide Tyler Sommers of Democracy Watch with an opportunity to repeat his pitch for tougher penalties for violations of election law and for more disclosure by Elections Canada.

The last I heard of Dean Del Mastro he'd decided that cleaning up the sorry state of media comment sections on the internet was something worth talking about. Perhaps that's because it has so little to do with his campaign financing. There's been no movement on that story.

As for Elections Canada, it's being reported that the Etobicoke Centre case was already enough to prompt a review and tightening up of procedures. And Marc Mayrand spoke up to offer some constructive criticism of legislation that the CPC is proposing on financing. There's no indication that he's been speaking to Tyler Sommers.

Pierre who?

See you next week.

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Laura Payton has nothing on you pogge, and as you say she left something out, but ntl I loved seeing it on cbc.

There are a few issues with the majority ruling and your argument for it.
They only checked 10 of 130 polling stations. It would be a statistical anomaly to find that many irregularities in 10, but not 6 more in any of the 120 other ones. No guarantee for which candidate they would be for, but to not bother checking after finding that many is just unacceptable.

Referring to American attempts to disenfranchise is entirely misleading. We're talking about enforcing what we already have on the books, it's no one's ammunition. In fact I would argue that failing to uphold it could also be an invitation to produce disenfranchising legislation. 'If in our current system this is how many irregularities and fraudulent votes we are getting, and our court system won't do anything about it we need to', but in Conservative speak of course. In fact minus the actual existence of voter fraud that's the justification Americans use. What we have isn't good enough, we need more! In any case to disqualify overturning the results on the basis of something other than the merits of the case is just ridiculous. That's the kind of motivation that leads to crooked judges handing down ruling they don't even necessarily agree (in terms of the law) with because of what sort of precedent it will or won't then create.

In any case our current process includes multiple means of verifying that anyone eligible to vote is actually eligible to vote. Voter registration, filling out a new voter card, proof of address from any number of forms of I.D. which anyone can get, and properly vouching for someones address. Nobody is disenfranchised by these procedures. If we are not to disqualify votes on their basis then you should be making an argument against those procedures. I think as Canadians we are given ample opportunity and the voters and or the staff at the polling locations were incompetent. The same can't be said for...

Americans on the other hand are putting in and have put in laws that sets the bar higher by removing means of verification for people who have the right to vote by disqualifying types of I.D. that by all accounts meet the requirements, by removing early voting, by putting up pay walls, and by literally moving the institutions where you have to pay to get these means of verification out of certain areas and into others which are more favorable to those making and voting in these laws. We're talking about adhering to procedure after the fact, not preventing people from being allowed to vote in the first place or shifting the number of voters to more favorable districts and out of unfavorable ones. Of being able to confirm that all votes were done so legally, not that every person who shows up is eligible. And bottom line if we're going to say we shouldn't follow procedure we also have to be arguing that the procedure is in someway flawed. That's what we can say for the American laws, in part because they disenfranchise millions and lead to permanent election results. Ours would disqualify tens of people, and lead to new elections.

Nobody was told you have the wrong I.D., no one was told oh we don't do early voting anymore, nobody was told you have to pay to get that or drive way far away over there to pay to get it. We had a closely contested election which warranted inquiry, and found irregularities that meant that we couldn't guarantee that people voted legally but NOT that they couldn't have voted at all. Thus we had a closely contested election the results of which we can't guarantee. If we can't guarantee it we need to overturn the results which if I'm not mistaken means a new election.

It's the difference between saying only so and so can apply for a drivers license, and we're going to check every driver pulled over if they have it. Sometimes and in fact often we are going to arrest people who are entitled to drive but are not carrying their license. And we have to have some procedure in place that if not fully or properly followed disqualifies a vote on the basis that we can't make sure it was done so legally so that we can guarantee the results of an election. If we don't, then we make the votes of everyone potentially meaningless. We should overturn the results of this election so that we can ensure democracy is upheld, and that every vote actually counted.

I want to get back to this but meanwhile, Michael Harris has a column up at iPolitics on the ruling. I've only scanned the first couple of paragraphs but it would seem he's not impressed.


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This page contains a single entry by pogge published on October 26, 2012 2:53 PM.

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