Monday, May 21, 2012

Wrzesnewskyj Verse Opitz Ontario Supreme Court Decision

Judge Lederer did not address wrongdoing by voters who may have voted without being qualified to do so or who voted more than once. Thanks to Mr. Wrzesnewskyj's persistence and willingness to file a civil law suit, the Etobicoke election result would not have been found null and void.

Conclusion from Judge Lederer J.'s decision:

[153] Based on this analysis the following votes are set aside.

On account of failure of registration:

At Poll 426.........26
At Poll 31...........15
At Poll 174.........1
At Poll 89...........10

On account of failure of vouching:

At Poll 21..........8
At Poll 30..........4
At Poll 174.........8
At Poll 502.........7

[ 154] This exceeds the plurality of 26. I declare the election null and void as contemplated under s. 531(2) of the Canada Elections Act.

[155] As for what was referred to earlier as the conundrum, it should be evident that in deciding these applications, the court walks a thin line in search of a delicate balance.

[156] On the one hand, people who are qualified to do so should be allowed to vote and to have their votes count. True clerical errors, such as recording the number of ballots cast in the place reserved for the number who were vouched for, do not matter. Some oversights, such as a failure to check off the means by which a voter identified himself or herself, can be accepted, when considered in context of the overall requirements to register. There are irregularities, such as voting in the wrong polling division which, in the absence of any suggestion of double voting,
should not impact the result. These should not cause a qualified voter to be disenfranchised.

[157] On the other hand, there are requirements of the process which are fundamental. We need to be assured that those who vote are qualified to do so. We need to be confident that those who receive a ballot have been identified as persons who are an the official list of electors or who have registered. If we give up these foundations of our electoral system, we are risking a loss of confidence in our elections and in our government.

[158] If this case can be summarized, in a single observation, it would be that it cannot be good
enough to accept that individuals who voted were qualified to do so by registration, in the absence of the registration certificates, in the absence of the poll books recording anyone who registered by vouching and in the absence of the names from the final list of electors. Our system requires more.

[ 1 ~ 9] The fact of this application demonstrates that our electoral process has the necessary checks and that they can work even where the plurality is as small as 26 votes and the number of impugned ballots is 79. There are places in the world that would wonder that such a result was possible. This is not to say we should be content. This is just one of so many areas where our society is changing more quickly than the ability of our systems to keep up. I repeat an observation made at the outset. This election was conducted by responsible public officials and well-intentioned individuals, who were motivated by nothing less than a desire to do the job properly. What this case represents is an opportunity to learn and for the process to evolve in order to guard against the particular problems that appeared in this case.

 Wrzesnewskyj Verse Opitz Ontario Supreme Court Decision 

2 comments:

  1. the Wrzesnewskyj Verse Opitz Ontario Supreme Court Decision link does not work. Any chance of correcting it? Thanks in advance.

    ReplyDelete
  2. The link to the Decision is now working. Thanks.

    ReplyDelete

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