Vuntut Gwitchin election challenge, hinged on single ballot, heard in Yukon court

The election in Yukon's Vuntut Gwitchin riding was sound, with one elector within his rights to cast a ballot, according to a lawyer fighting against former MLA Pauline Frost's petition to overturn that single vote. 

Lawyer Mark Wallace told Yukon Supreme Court on Thursday that to annul that ballot cast in the April 12 territorial election would disenfranchise the elector. That could have implications for anyone who doesn't necessarily have a fixed address — people grappling with homelessness, for instance, or those who are incarcerated, he said.

"This is about enfranchising people, not narrowing it down," Wallace said.

The entire case hinges on the ballot cast by Christopher Schafer, who's been in and out of jail for the past 22 years. During the territorial election, Schafer voted in Vuntut Gwitchin via special ballot from the Whitehorse Correctional Centre.

Frost, the incumbent Liberal candidate, lost that election when the NDP's Annie Blake's name was selected by random draw, ending a tie that saw candidates with 78 votes apiece.

James Tucker is half of Frost's legal team. He told the court Schafer's vote should be considered invalid because no proof of residency in the community was provided. There were also verification problems, Tucker said. 

"The purpose of residency requirements is that it's confirmed," he said, adding that Maxwell Harvey, the territory's chief electoral officer, failed to ensure Schafer followed the rules. 

"Our system is built on it."

Wallace, representing Harvey in court, said Schafer provided identification — that is, he swore under oath and declared he's from the community of Old Crow, in the Vuntut Gwitchin riding.

Tucker argued that Frost isn't attacking the integrity of the electoral system, but "protecting it."

"We're here to ensure it produces results that accurately reflect the will of the electorate," he said. 

Suzanne Duncan, the chief justice of the Supreme Court of Yukon, said it's clear Schafer wanted to be involved in the electoral process.

"And he's entitled to vote," she said. "Anything less would be disenfranchisement."

'Ludicrous' for inmates to vote in riding where jail is, lawyer says

Duncan then asked, if Schafer shouldn't have voted in Vuntut Gwitchin, in which riding should he have cast his ballot?

According to lawyer Luke Faught, also representing Frost, Schafer should have voted in Whitehorse where he was jailed.

Wallace fought back against that answer, calling it "ludicrous" to suppose inmates should vote in the riding where jails are located. 

"No one intends to be at the Whitehorse Correctional Centre," he said.

Wallace said Schafer's home is, without a doubt, Old Crow, as his parents and daughter live in the community.

He also argued that Schafer has maintained connections to Old Crow and has always planned to return to the community — it's just a matter of when, not if.

Shaunagh Stikeman, representing Blake, said the case highlights Indigenous identity within the context of ancestral lands, and that, under this lens, Schafer's place in the community of Old Crow cannot be ignored. 

"There's no evidence of him abandoning his residence in Old Crow, nor an intention to find a new residence elsewhere," Stikeman said.

Duncan reserved her decision Thursday. She said it will be released in late July or early August, "given the material I have to go through and the importance of this decision."