Etobicoke Centre election result marred by 'irregularities'

Arguments have begun in a legal challenge of the federal election result in the Toronto riding of Etobicoke Centre, where former Liberal MP Borys Wrzesnewskyj lost by 26 votes to Conservative Ted Opitz last spring.

The defeated Liberal MP is questioning election paperwork and records involving 181 ballots. His case is based on votes from 10 polls — representing about five per cent of the riding.

"The rules matter," Wrzesnewskyj told reporters outside the courthouse on Monday. We live in a democracy that's governed by rule of law, and the same rules should apply equally to every citizen."

"An election is the fundamental bedrock upon which our democracy is built. And if we don't have confidence in that process, then we don't have confidence in our elected representatives," the former MP said.

"This case allows us to fix what went wrong before the next election."

Wrzesnewskyj's lawyer, Gavin Tighe, told Ontario Superior Court in Toronto that the legal challenge of the May 2 result is based on "irregularites" with some of the voting paperwork, including the failure to check off whether voters showed proper identification.

Other records suggest some ballots may have been cast illegally, by people voting at incorrect polling stations, which runs counter to the Elections Act.

However, the defeated MP's lawyer conceded that he is not alleging any fraud or corruption in the vote. 

Tighe argued there is a difference between someone who is entitled to vote and someone who is qualified to vote. Any Canadian citizen over age 18 and living in the riding may be qualified to vote. However, to be entitled to vote, there are rules about proper identification at the polling location, Tighe noted.

Process is important, Tighe argued, suggesting that losing candidates need to be able to have confidence in the results.

Conservative MP Ted Opitz is dismissing the challenge, arguing the alleged "irregularities" were clerical errors and mistakes by poll staff, rather than an indication of wrongdoing by voters that had any bearing on the final result.

Clerical errors 'inevitable': judge

Judge Thomas Lederer on Monday expressed concern that Wrzesnewskyj's application could pave a path to legions of future challenges to election results in cases where the final count is close.

Some clerical errors are "inevitable," observed the judge, pointing out that election officials need to be able to exercise a "level of judgment" in considering the rules in the Elections Act. After a voter has been told he or she can vote, suggested the judge, we aren't able to ask a voter about alleged problems with his or her paperwork to determine if that vote really should have counted.

At one point, the judge appeared to lose patience with Tighe's arguments, saying they could mean byelections would be needed in almost every close finish given the inevitability of procedural mistakes.

"I can't believe that proposition will instil trust in the citizenry of this country," Lederer said.

"That can't be what's intended here. It makes this act self-defeating."

A relatively new section of the Canada Elections Act that was added in 2000 stipulates that an elector or candidate may seek to invalidate a result if it was affected by irregularities, fraud, corrupt or illegal practices.

Arguments submitted to the court prior to Monday's arguments by chief electoral officer Marc Mayrand argue that Parliament did not intend the provision to be applied to "clerical errors" in filling out the paperwork required to ensure only eligible voters are allowed to cast ballots.

Arguments are expected to continue through Friday.