Opitz v Wrzesnewskyj, 2012 SCC 55 (25 October 2012)
A majority of Canada's Supreme Court has found that in a recent election where a number of administrative errors occurred which indicated some voters did not satisfy the identification requirements under the Canada Elections Act, SC 2000, c 9 the election result was nonetheless valid. In reaching its conclusion, the Supreme Court majority favoured a substantive approach that upholds an entitlement to vote based on the right to vote guaranteed under Canada's Charter of Rights and Freedoms, rather than the procedural requirements under the Act.
The appellant, Ted Opitz, won a seat in the Etobicoke Centre electorate for the 41st Canadian federal election by a margin of 26 votes. The respondent, Borys Wrzesnewskyj, was an unsuccessful candidate for the same seat.
During the course of the election, a number of administrative errors were made with respect to incorrect recording of information relating to voter identity and missing registration certificates (declarations of qualification to vote).
Section 524(1) of the Act provides:
Any elector who was eligible to vote in an electoral district, and any candidate in an electoral district, may, by application to a competent court, contest the election in that electoral district on the grounds that…
(b) there were irregularities, fraud or corrupt or illegal practices that affected the result of the election.
The respondent successfully argued in the Ontario Superior Court of Justice that the election should be annulled on the basis that 79 votes in respect of which identification errors were made were "irregularities … that affected the result of the election".
The appellant appealed to the Canadian Supreme Court. The decision turned on the proper construction of the phrase "irregularities … that affected the result of the election".
The Supreme Court upheld the appeal by a 4:3 majority decision, finding that the administrative errors identified by the respondent were not "irregularities" that "affected the result of the election" as contemplated by the Act, and therefore the votes should not have been invalidated. The Supreme Court determined the final orders, rather than remit the matter back to the Ontario Superior Court of Justice, as the Act required a contested election application to proceed "without delay and in a summary way".
The decision required the Court to determine the correct test to be applied when deciding what constitutes an "irregularity" under the Act.
In determining whether the errors made in the relevant election were irregularities under the Act, the majority was required to apply one of two tests previously applied by lower courts. The first test is a strict approach, whereby any procedural error constitutes an irregularity and should invalidate the relevant vote.
However, an alternative approach, described as a "substantive approach" was favoured by the majority.
The first step in applying this test is to determine whether an irregularity has occurred, being a "breach of a statutory provision designed to establish a person's entitlement to vote".
The second step is to demonstrate that this irregularity then "affected the result" of the election: in other words, "someone not entitled to vote, voted".
The majority stated that “[t]he right of every citizen to vote, guaranteed by section 3 of the Charter, lies at the heart of Canadian democracy”. Accordingly, this central right was paramount in determining in what circumstances a vote could be invalidated (at para 34):
The procedural safeguards in the Act are important; however, they should not be treated as ends in themselves. Rather, they should be treated as a means of ensuring that only those who have the right to vote may do so. It is that end that must always be kept in sight.
On this basis, the substantive test was preferred by the majority because the identification pre-requisites under the Act were considered procedural safeguards that did not ultimately affect a person's inherent entitlement to vote as that right is entrenched and understood in the Charter. The majority found that the Act's procedural requirements should be interpreted in light of the Act's enfranchising objective; only irregularities that were "serious and capable of undermining the integrity of the electoral process" should invalidate a vote.
The majority concluded that in this instance, the administrative errors made by polling station volunteers during the election did not satisfy the substantive test.
With some reservation, the majority commented in obiter that the "magic number test" would have been used in this case to determine whether the election should be annulled, had the votes been invalidated. The magic number test requires that an election should be annulled where the invalidated votes equals or outnumbers the votes comprising the successful candidate's winning margin. The Court stated that this test is flawed in that it assumes "all of the rejected votes were cast for the successful candidate", which is an unlikely proposition.
The dissenting decision also recognised that "irregularities" should not be interpreted in a trivial manner that undermined a citizen's right to vote. However, the dissenting justices determined that the identification requirements under the Act were crucial in giving rise to an entitlement to vote, and that such entitlement needed to be established before the voter was allowed to vote. The dissenting judgment commented that an approach that did otherwise would be "unfair" because it would disregard other qualified voters who were turned away from polling stations on the day of the election for failure to meet the identification requirements.
Relevance to the Victorian Charter
The Victorian Charter provides a right to vote (section 18(2)(a)), in similar terms to that provided under the Charter. Under the Electoral Act 2002 (Vic), the Court of Disputed Returns (a jurisdiction of the Supreme Court) has "the power to declare any election void" (section 125(g)) and "may inquire whether persons who voted were entitled to do so and whether their votes were improperly admitted or rejected" (section 138).
The Electoral Act has not yet been interpreted in light of the Charter. The recent Canadian decision may therefore serve as persuasive authority to the Court of Disputed Returns on how the substantive rights that arise under section 18(2)(a) of the Victorian Charter could impact on the interpretation and application of the procedural requirements under the Electoral Act.
This decision is available online at: http://canlii.ca/en/ca/scc/doc/2012/2012scc55/2012scc55.html
Katie Gardiner is a Law Graduate at Allens.