PC candidate's lawyers argue Saint John Harbour vote can be set aside

Lawyers for former Saint John Harbour Progressive Conservative candidate Barry Ogden called for his 10-vote loss to Liberal Gerry Lowe in last year's general election to be set aside during final arguments Tuesday over the Saint John Harbour contest.

Kelly VanBuskirk and Matthew Letson told Justice Hugh McLellan the requirements laid out in New Brunswick's Elections Act to invalidate an election have been met and that problems with what they called 71 questionable votes in the riding require a new contest.

"Voters cannot have confidence in the integrity of the process and that their votes had meaning," Letson told the court during a three-hour presentation of Ogden's case.

Lowe won the riding during the provincial general election last September in the closest race in the province — a result later confirmed by a judicial recount.  

But Progressive Conservatives have questioned the validity of several dozen ballots cast in the contest.

New Brunswick legislation allows for an election to be invalidated if proper election "procedures" are not followed and if those diversions "may" have affected the outcome of the vote.

Ogden's legal team claims with just a 10-vote difference in the final result, there were more than enough procedural problems to have tilted the outcome.

They claim polling records in the riding show two ballots were issued to the same voter ID number in 24 cases — suggesting 24 people may have voted twice. They also claim 10 people living outside the riding were allowed onto the voters list, as were six people who did not properly fill out forms with their birth dates.  

There is also an allegation nearly three dozen people were added to the voters list after filling out incorrect forms. In total, PCs claim 71 votes cast in the election are "questionable" because of a variety of failures. 

In his arguments, Letson said Ogden did not have to prove ballots were wrongly cast, only that procedures to prevent problems were not properly followed. He said it was up to Lowe and Elections New Brunswick to prove mistakes that did happen did not affect the outcome.

"There is no evidence the voters we are challenging were in fact entitled to vote," Letson said. "There's no evidence to rebut double voting and no evidence to rebut that 10 voters lived outside the riding."

Outside court Ogden said he was pleased with his lawyers' presentation.

"I thought they were excellent. Really well done. I thought they were very detailed." 

But Gerry Lowe's lawyers dispute the onus is on him to prove anything in the case. Tim McLaughlin told court Ogden needs some proof —  not just suspicion — that large numbers of people might have wrongly, even fraudulently, voted and he has given no evidence of that.   

In their final written brief, Lowe's legal team said honest mistakes made in the riding cannot be used to overturn a valid election result.

"That there was any failure to follow electoral procedures prescribed by the Elections Act the failure to follow such procedures were merely clerical errors and/or had no impact on the outcome," they wrote.

Lowe's lead lawyer,Tom O'Neil, continues closing arguments Wednesday morning followed by Fred McElman acting for Elections NB.