Thursday, October 25, 2012

Summary of majority decision in Opitz v. Wrzesnewskyj, 2012 SCC

                    Per Deschamps, Abella, Rothstein and MoldaverJJ.:  W asks this Court to disqualify the votes of several Canadian citizens on account of administrative mistakes, notwithstanding evidence that those citizens were entitled to vote.  The invitation to do so should be declined.  There is no allegation in this case of any fraud or wrongdoing.

                    In accordance with s. 3 of the Canadian Charter of Rights and Freedoms and a plain reading of s. 6 of the Act, there are only three fundamental prerequisites to the right to vote (or "entitlement" to vote). A person must be 18 years of age or older, a Canadian citizen and a resident in the electoral district (or "riding").  The Act provides various procedural safeguards that allow persons to satisfy election officials that they are entitled to vote and prevent those not entitled to vote from voting.  Examples of such procedural safeguards are the lists of electors, registration procedures and identification and vouching requirements.

                    Lower courts have taken two approaches to determining whether votes should be invalidated on account of irregularities.  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.

                    The substantive approach has two steps under s. 524(1)(b).  First, an applicant must demonstrate that there was a breach of a statutory provision designed to establish the elector's entitlement to vote.  An applicant who has successfully done so has established an "irregularity".  Second, the applicant must demonstrate that someone not entitled to vote, voted.  He may do so using circumstantial evidence.  This second step establishes that the irregularity "affected the result" of the election.  Under this approach, an applicant who has led evidence from which an "irregularity" could be found will have met his prima facieevidentiary burden.  At that point, the respondent can point to evidence from which it may reasonably be inferred that no "irregularity" occurred or that, despite the "irregularity", the voter was in fact entitled to vote.  After‑the‑fact evidence of entitlement is admissible.  If the two steps are established, a vote is invalid.  Finally, although a more realistic test may be developed in the future, the "magic number test" is used for the purposes of this application.  It provides that an election should be annulled if the number of invalid votes is equal to or greater than the successful candidate's plurality.

                    Applying these principles to this appeal, at least 59 of the 79 votes disqualified by the application judge should be restored.  The remaining 20 votes are less than O's plurality of 26.  Although the remaining 20 votes are not discussed, there is no reason to believe that any of the 20 voters were not in fact entitled to vote.  Because W has failed to establish that at least 26 votes should be disqualified, his application to annul the election should be dismissed.

                    The application judge made two errors of law.  With respect to polls 31 and 426, he misstated the onus of proof five times, in the context of making crucial findings of fact, and it cannot be confidently said that he did not reverse the onus of proof.  For polls 174 and 89, he failed to consider material evidence in reaching his findings.  In light of these two errors of law, the application judge's findings at these polls are not entitled to deference.  Because the evidence is exclusively documentary and the Act requires a contested election application to proceed without delay, it is incumbent on this Court to reach its own conclusion on the validity of the votes in these polling divisions rather than remit the case to the application judge for redetermination.

                    At polls 31 and 426, a total of 41 required registration certificates were missing.  If the certificates were never completed this would amount to an "irregularity", satisfying the first step of the test.  Here, however, there was evidence that indicates the certificates were completed but were misplaced after the election.  Considering the whole of the evidence, W failed to establish, on a balance of probabilities, that there was an "irregularity".  For 13 of these voters at poll 31, there was positive proof that they were entitled to vote.  They were on the list of electors at poll 31 or at other polls in the riding.  This evidence confirms the decision to restore these votes.  Although the minority also restores these votes, their explanation for doing so is contrary to their position that a voter must establish his entitlement before receiving and casting a ballot.

                    At poll 174, eight individuals who were vouched for are identified in the poll book by their relationship to the person who vouched for them, rather than by their full name.  There was, however, evidence in the list of electors from which it could be inferred that the vouching was properly conducted.  W failed to establish an "irregularity".

                    At poll 89, 10 registration certificates were not signed by the voters, but were instead signed only by the election official.  With respect to these votes, W established that there was an "irregularity".  W failed, however, to show that the irregularity "affected the result" of the election.  There was evidence from which it could reasonably be inferred that the 10 voters were entitled to vote and that the misplaced signatures were simply a clerical mistake.

                    The cross‑appeal should be dismissed.  There is no basis for interfering with the application judge's findings with respect to the other votes in polls 16, 21, 31, 89, 400 and 426.

                    Evidence from the national register of electors can be relevant in contested election applications as proof of voters' entitlement.  Given that the motion to adduce fresh evidence could only assist O, however, the evidence need not be considered.



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