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Could the Supreme Court ruling on Etobicoke Centre actually be helpful for robocall case?

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It may be whistling in graveyard, but the former Liberal MP for Etobicoke Centre in Toronto Borys Wrzesnewskyj actually thinks he won a sort of victory on Thursday.

Wrzesnewskyj lost the last election to Conservative Ted Opitz by just 26 votes.

He believed that there were a number of irregularities in the voting process -- irregularities which meant that some people voted in the wrong place and others voted who did not have the right to.

And he decided to do something about it.

The defeated MP spent several hundred thousand dollars of his own money to make a legal case.

He asked the Ontario Superior Court to overturn the Etobicoke Centre result and order a by-election, and the Court did just that.

The Conservative winner, Opitz, appealed that ruling to the Supreme Court, and, in a four to three decision, the Supreme Court overturned the lower court.

Opitz will continue to sit in Parliament. He will get to carry on in his role as a faithful, party loyalist, hard-line stalwart on the Immigration Committee.

But the defeated Liberal thinks Thursday's decision is still a victory for Canadian democracy.

"Elections will be run very differently from now on," Wrzesnewskyj told reporters immediately after learning of the decision, "The recently called by-elections will be run very differently from the last general election. Elections Canada and the Government have learned a lesson."

Maybe so.

But some wags in the Press Gallery had a different take on the Supreme Court ruling.

"The Justices just told the political parties to stuff the ballot boxes as much as they want," one wisecracked, "It's okay with them!"

Read the reasoning of the decision

 More important: what is the significance of this decision for the much bigger "robocall" case, now before the Federal Court?

That case involves six ridings where voters allege there was an active attempt to prevent many citizens identified as not being Conservative supporters from voting.

The Etobicoke Centre case was about ballots that should not have been counted.

The robocall case -- brought by six citizens who are assisted by the Council of Canadians -- is about an apparent effort to suppress votes that should have been cast.

In that sense, the Council's lawyer, Steve Shrybman, thinks Thursday's decision may actually augur well for his case.

"The Etobicoke case is very different from ours," Shrybman explains, "but the Supreme Court decision on Etobicoke Centre provides helpful guidance on various issues that are alive in our applications. It is clear the Court placed primary emphasis on the need to preserve the democratic franchise that eligible voters are guaranteed under the constitution."

If you read Thursday's majority Supreme Court decision you will find numerous references to the right to the vote as a fundamental democratic value that can trump other concerns.

That is why the Court majority was so reluctant to throw out votes that had been cast in good faith, merely on the basis of 'administrative problems.'

Just look, for example, at paragraph 45 of the majority decision:

"Our system strives to treat candidates and voters fairly, both in the conduct of elections and in the resolution of election failures ...[The] [Elections] Act seeks to enfranchise all entitled persons ... and to encourage them to come forward to vote on election day [emphasis added]... The system strives to achieve accessibility for all voters ..."

The clear implication here is that the Court majority believes denying any vote is more pernicious than tolerating the occasional vote that may not be "legitimate."

A deliberate effort to deceive?

 The robocall case is all about votes denied, not ballot boxes stuffed.

The six complainants supported by the Council of Canadians are alleging what amounts to fairly massive election fraud.

They argue that there was a systematic and deliberate effort to deceive certain targeted citizens so that they would, in effect, lose their right to vote.

Those allegations have to be proven in court, of course. And, for now, the court that will hear the case is the Federal, not the Supreme, Court.

But before the Conservative Party lawyer Arthur Hamilton gloats that Thursday's Supreme Court decision on Etobicoke Centrre is a good harbinger for his side, he might want to read Thursday's majority Supreme Court decision very carefully.

The authors of the decision went to great pains to underscore the near sanctity of the right to vote.

In addition to the citation above, here are a few other mentions the Justices made of that fundamentally important right:

"The right of every citizen to vote, guaranteed by section 3 of the Charter of Rights and Freedoms lies at the heart of Canadian democracy ..."

"It is well recognized in the jurisprudence that where electoral legislation is found to be ambiguous, it should be interpreted in a way that is enfranchising ..."

"The courts have always recognized the fundamental importance of the vote and the necessity to give broad interpretation to the statutes which provide for it ..." (Quoting an earlier decision by Justice Heureux-Dubé).

What the last two statements could mean for the robocall case is that the Justices who wrote the decision believe a court must consider any and all actions that might have plausibly interfered with citizens' right to vote, even if such actions are not specifically mentioned in the legislation.

Will the courts uphold the same principle in robocalls?

On Thursday, the Justices were making all these assertions in support of their reversal of a lower court's decision to overturn election results in one riding.    

They were not commenting on the robocall case; and it may be a while before they get a chance to do that.

But there is an argument to be made that the Justices' reasoning could elegantly apply to the robocall situation.

Just as it does not serve democracy to "frivolously" reject votes that were cast in good faith: so does it not serve democracy if citizens are deliberately deterred from exercising their right to vote.  

And it could be argued, as a corollary, that it is especially important for the good health of democracy that political actors not resort to tactics that would interfere with citizens' right to vote.

In his scrum following the announcement of the Etobicoke Centre decision, Wrzesnewskyj talked a lot about all kinds of activity in his riding on Election Day in 2011 that he believes had been designed to suppress the vote.

He even told tales of Conservative Party officials "haranguing" and intimidating seniors whose first language is not English, for the purpose of preventing them from voting.

That's what he told a gaggle of journalists in the lobby of the Supreme Court building.

None of that, however, was in his court case, which focused narrowly on 79 supposedly fraudulent votes.

We'll see if the Council of Canadians and the six complainants do better with their allegations of far more systemic and widespread abuse.

 

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