Election results challenge to go ahead in Federal Court

The Federal Court is letting a challenge proceed regarding the 2011 election results in seven ridings across the country.

A group of voters, backed by the Council of Canadians, wants the court to overturn the results because of allegations of misleading phone calls that attempted to send voters to the wrong polling stations.

Overturning the results would mean a byelection in each riding.

The seven Conservative MPs who won those seats had asked the court to dismiss the case before it went to a full hearing.

Prothonotary Martha Milczynski heard the case on June 25. In her ruling, she says the applications to dismiss the election results raise serious issues about the integrity of the democratic process.

The applications identify practices that, "if proven, point to a campaign of activities that would seek to deny eligible voters their right to vote," Milczynski said.

A prothonotary is a full judicial officer who has many of the powers and functions of Federal Court judges. Prothonotaries handle case management, mediation and practice motions.

Conservative Party lawyer Arthur Hamilton had argued the case was frivolous and vexatious. He said the applicants didn't present any evidence that people didn't vote as a result of the phone calls, and contended the case has no chance of success.

The decision says elections are not something that can be lightly overturned. "Nor should the ability to contest elections be used for improper purposes, whether a candidate or elector simply disagrees with or does not like the result."

But it's too early to conclude that the case shouldn't be heard, Milczynski wrote, and the full arguments should be heard on their merits.

Milczynski was careful to note that not all challenges should go ahead and that allowing obviously frivolous and vexatious applications to move forward would itself "diminish the electoral process."

"Accusations and bare assertions will not sustain an application to annul the results of an election," she wrote.

Hamilton had argued that the applications were filed too late, outside of the 30-day limit for challenges to election results.

Milczynski said it's too early to know that. "It cannot be concluded at this juncture simply on the basis of inference and argument that the applicants as a group, or any of them, sat on their rights until after the time for bringing the application had expired."

Milczynski urged the two sides to move to a hearing as quickly as possible.

Barlow pleased with decision

Maude Barlow, the chair of Council of Canadians who was singled out for criticism by the Conservatives as a "virulent critic" of Prime Minister Stephen Harper who had "orchestrated" the litigation, said Thursday night her group was "very pleased with this thoughtful decision."

"Clearly the court sided with with applicants and denied their case is frivolous," she said. "This case concerns a serious charge that hits at the heart of our democracy — namely that widespread voter fraud that benefitted one political party may have taken place during the last election.

"It is imperative that this case come to court to be heard on its merits," she said. "Shame on the Conservative Party for trying to stop it from going to court."

A separate case related to last year's federal election was heard in Supreme Court earlier this month. Former Liberal MP Borys Wrzesnewskyj is challenging the result in Etobicoke Centre, where Conservative MP Ted Opitz was elected.

Opitz is appealing a ruling by an Ontario Superior Court judge that there isn't the paperwork to back up the identity of some of the people who cast their ballots.

The Supreme Court justices haven't ruled yet on the appeal.