'Leaked' document in Saint John Harbour court challenge won't be public 'for now,' judge rules

A "leaked" Elections New Brunswick document related to a court challenge of the Saint John Harbour riding result will not be made public "for now," and the lawyer who obtained it will not be removed from the case, a judge ruled Friday.

Court of Queen's Bench Justice Hugh McLellan said the matter "has echoes of American politics where assorted random leaks end up dominating news cycles and derailing discussion."

But he did not find any misconduct on the part of Kelly VanBuskirk, who is representing Progressive Conservative candidate Barry Ogden in a bid to overturn the election result that saw him edged out by Liberal candidate Gerry Lowe by 10 votes on Sept. 24.

The Tories allege some people in the riding may have voted twice, that people from other ridings may have voted in Saint John Harbour and that there were clerical errors.

McLellan said he will allow VanBuskirk's amended notice of application alleging voting discrepancies, which is based on information in the document at issue, and instructed Elections NB to submit a sworn affidavit explaining the document.

The hearing has been adjourned until some time in the new year.

McLellan said he won't order the source of the leaked document to be disclosed. "I don't see any advantage of going there."

He did, however, order that the document not be shared with anyone else.

We're happy that there will be some sunlight cast on this case finally.- Kelly VanBuskirk, lawyer

VanBuskirk told reporters outside the courthouse he was pleased.

"We're happy that the court has seen the need for transparency in this process. We think that the public deserves that transparency," he said.

"We agree with the court's quotation of [the late U.S. Supreme Court Associate Justice Louis Dembitz Brandeis] that sunlight truly is the best of disinfectant and so we're happy that there will be some sunlight cast on this case finally."

On Wednesday, Elections NB lawyer Fred McElman had called for VanBuskirk and his firm Lawson Creamer to be removed from the high-profile case.

He alleged VanBuskirk failed to disclose he came into possession of "privileged" notes prepared by a returning officer for the Elections NB legal team for the hearing, and thereby violated the Law Society of New Brunswick's code of conduct.

Asked Friday about being cleared of any wrongdoing, VanBuskirk said he doesn't "feel good" about what McElman said about him and that McElman hasn't apologized, but he is proud of his clients and his firm for "taking this difficult road."

"This is nothing that we take lightly. This is nothing that we see as gamesmanship. For me, this is about the pursuit of the truth for the benefit of the public."

'Cloud over me'

Lowe said he also wants everything out in the public to remove any suspicions about the Saint John Harbour election.

"Naturally there's a cloud over me, because you know, people, if you read social media and that stuff, they think that we did something, my team did something. We didn't do nothing," he said.

"I mean Barry worked hard, I worked hard, both teams worked hard. The end result is what it is.

"I think the judge ruled right about everything. I'm happy."

Elections NB is "as eager as all other parties to have this matter resolved in a timely and transparent fashion," chief electoral officer Kim Poffenroth said in an emailed statement to CBC News.

"As stated in court, we are ready to prepare a new affidavit with supporting documents as it relates to the information requested by Justice McLellan," she said, declining further comment, citing the ongoing proceedings.

During Friday's hearing, VanBuskirk suggested the document could contain information indicating significant problems in the Saint John Harbour election.

He argued Ogden and his campaign manager, Peter Josselyn, are pursuing a noble cause and urged the judge to order the "report" to be released.

"Merely claiming it is a privileged document doesn't in law, make it privileged," he said.

But McElman maintained the notes are privileged and include personal information about voters, including their addresses and ages.

He said VanBuskirk has refused to disclose how he obtained the document. "I don't know if someone has stolen this from my office," he said, or if his computer may have been hacked.

"I don't know if someone has stolen this from Elections New Brunswick."

Important riding

Saint John Harbour was the closest race in the province and became central to the fight for power between the PCs and Liberals, as neither party won the 25 seats required for a majority in the 49-seat legislature.

A recount on Oct. 4 confirmed Ogden lost to Lowe by 10 votes, but his legal team is now seeking to have the riding results overturned over alleged voting discrepancies.

On Thursday, Ogden and Education Minister Dominic Cardy took to social media to accuse the provincial elections agency of secrecy and to call for the release of any documents related to the race in the riding.

"In the era of fake news, with democratic institutions under suspicion and attack, Elections New Brunswick is drawing fire on itself, and risks undermining the foundation of our democracy," Cardy said. "If we can't trust the people who run our elections, can we trust anyone?"