(AFP) – Jul 10, 2012
OTTAWA — Canada's Supreme Court was asked Tuesday to decide for the first time whether the results of a federal election should be overturned.
Conservative MP Ted Opitz won the seat in a Toronto suburb by just 26 votes over Liberal Borys Wrzesnewskyj in last year's federal election.
But Wrzesnewskyj went to court claiming ballot-box stuffing and voter suppression by Opitz's campaign, as well as procedural irregularities.
Earlier this year, the Ontario Superior Court found that election officials made clerical errors at the polls, threw out 79 votes and overturned the final result. On Tuesday, the top court interrupted its summer break to hear Opitz's appeal.
Kent Thomson, arguing before the Supreme Court on Opitz's behalf, said Canadians will lose confidence in their democracy if polling station errors by Elections Canada staff can disenfranchise them from their constitutional right to cast a ballot.
"People will lose respect for the electoral process if they find they can be disenfranchised by the mistake of a poll clerk," he told the court.
"It's hard to think that a constitutional right of this importance can hang by so fine a thread."
Thomson also warned that if the Etobicoke Centre electoral district result is thrown out the bar would be lowered for future legal challenges, opening the door to countless election losers suing for rematches.
Runner-up Wrzesnewskyj's lawyer Gavin Tighe countered: "It's the rules which give democracy integrity."
"When we allow the system to fall apart," he said, "we lose the rights for everyone else to vote in fairness."
The Etobicoke Centre result was overturned on the basis that 79 of the 50,000 voters in the Toronto suburb who cast a ballot were not properly registered. The lower court found this to be result of clerical errors.
Throwing a wrench into the case, Elections Canada last week filed new evidence that 44 of the voters who were disqualified by the lower court were in fact on the national register of electors.
If the Supreme Court upholds the lower court decision, Prime Minister Stephen Harper will be required to hold a by-election in Etobicoke Centre within six months.
Whatever the outcome it will not impact Harper's Conservative majority in parliament.
But, according to the latest public opinion polls, if a rematch were held now, Wrzesnewskyj would win.
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