Written by Robin Mathews
The Harper Party Election Scandal in Etobicoke Centre: A Gross Failure Of The Administration Of Justice? A Tainted Judgement?
Readers may well believe a tainted judgement was handed down on October 25, 2012, by judges of the Supreme Court of Canada concerning the challenge of the 2011 Conservative election victory in Etobicoke Centre. They may believe political partisanship was involved - carefully undertaken to erase any and all claims by Borys Wrzesnewskyj or anybody else that significant “irregularities” took place in the election.
If readers come to such a belief, they will have to decide why it happened and who was involved.
The stakes in the challenge of the election were enormous – and the Stephen Harper interests had to know that. The Stephen Harper interests have shown that whenever the stakes are high in relation to their hold on power, they will do almost anything – within the law and/or convention or outside of them to maintain power. A forced by-election in Etobicoke Centre might well have delivered an overwhelming victory to Boris Wrzesnewskyj – the first of a series of death blows to dominance in Canada by the Harper interests.
From the beginning, reasonable and prudent Canadians have had the right to reject the whole court process involving the questionable election in Etobicoke Centre. The administration of justice in the matter has been – I believe – close to a farce, crippled and hindered. As a result, the final judgement in the Supreme Court of Canada issued by four judges [Rosalie Abella, Marie Deschamps, Marshall Rothstein, and Michael Moldaver] has brought down claims by some angry Canadians (openly and privately) that the decision is a Zionist Plot to further the malign and destructive policies and plans of the Israeli-loving Harper government.
Dismiss the anti-Zionist claims. Even doing so, observers may believe the final judgement is so bad, so imprudent, so dangerous for the future of elections that a central question must be asked: “Was it a rankly political and partisan judgement, or was it a restrained one made upon the basis of law in an even-handed and fair consideration?
What is the Canadian world like into which the Etobicoke election conflict erupted?
Canadians face, as I write, what reasonable men and women might well term the federal government’s persistent, unrelieved, and calculated dishonesty – headed, fronted, intended, and overseen by Stephen Harper. Those who will, still, say Harper is unaware of on-going Conservative malfeasance can only belong to a wasted, vestigial (probably paid) propaganda team.
The malfeasance is made up of planned - and ineffectively achieved - secrecy, open deceit, intentional guile, and a continuous intention to mislead Canadians. One need only mention the Wheat Board, the F35 fighter costs, the odious appointment of the Governor General, The Canada China Foreign Investment Protection and Promotion Agreement, the five year denial before admission of guilt in (2006) Election violations, accusations of more violations in the 2011 election, and the ideological slashing of research and regulatory organizations under the clearly false claim of Necessary Austerity.
To pile insult upon injury in regard to Necessary Austerity, Harper has just been revealed to have had his slick, private, bullet-proof automobiles flown to the Far East in a luxurious action that would even embarrass what used to be called “Oriental Despots”. [He refused transportation offered by the Indian government.] Worryingly, the RCMP tried – one more time – to cover-up for Harper’s egomania, revealing the Force, again, as his dangerous partner in the drive to build a fascist state in Canada.
Will Harper, next, we may wonder, have himself weighed in Arctic Diamonds, claiming they came to him as a unanimously conferred gift from the adoring Canadian people?
The humour of Harper’s ‘Napoleonism’ pales when we think of its cost to Canadian democracy, to our freedoms as a people, to the safety and security of dissenting voices. Only in the last day or so reports have surfaced that the Conservative Machine forced the firing of a reporter on the (Manitoba) Selkirk Record because she wrote critically of Harper policies. At the same time Susan Delacourt claimed on CTV that reporters are aware of increasing pressure from the Harper forces to (in fact) downplay or falsify federal government actions.
What is happening to Canada’s historic reach for the achievement of a just society?
The question is raised even more pointedly than by the treatment of reporter Jill Winzoski, fired by the Selkirk Record for upsetting Harper Central Office. It is raised by the defeated Etobicoke Central Liberal candidate’s (Borys Wrzesnewskyj’s) challenge of the 26 vote victory in that riding by Harper candidate Ted Opitz. The appeal to the Supreme Court of Canada by Opitz resulted in the reversal of the finding by Mr. Justice Lederer of the Ontario Superior Court of Justice who declared the election null and void because of election irregularities. The findings of Mr. Justice Lederer are clear and logical, though his acceptance of a study of only 10 polling stations among more than 230 is indefensible.
The deliberations of higher courts have, sometimes, to be complex. But the law is not Rocket Science. The Supreme Court of Canada reading Canadian law (or any court doing so) is not a process only available to the finest minds. It is made for people – all the people – and has no reason to be incomprehensible to them. Indeed, we travel on the assumption that court decisions MUST be rational and must appear ‘fair’ to reasonable and prudent Canadians. “Reasonable and prudent Canadians” are not an exclusive group. They are us.
Reasonable and prudent Canadians have a perfect right to expect that all court procedures will follow fair and rational directions and will be conducted in a way or ways which use the best methods to reach fair conclusions. When they do not, Canadians may fairly believe there has been a failure of the administration of justice – and they may conclude the failure is not accidental.
In the case of the Etobicoke Centre election the first judge, Mr. Justice J. Lederer of the Superior Court of Ontario (perhaps under pressure from Ted Opitz and others) defined the statement that “An application shall be dealt with without delay and in a summary way” (s.525(3) of the Act) to mean in a way that would make impossible anything but examination of a tiny number of the irregularities in the voting.
There is nothing in the Act which suggests or even hints that insufficient examination of the evidence should govern in a challenge of the kind undertaken by Boris Wrzesnewskyj. As the statement of the majority in the Supreme Court of Canada case says: “Mr Wrzesnewskyj agreed to limit his submissions to alleged irregularities at 10 of the more than 230 polls that made up the electoral district of Etobicoke Centre.”
Mr. Justice Lederer counted 79 irregularities that would affect the outcome of the vote which gave Ted Opitz a 26 vote majority, and so Lederer declared the election null and void. If on the basis followed in his examination of the ten polls, all 230 polling stations were roughly alike, there would have been something like 18,170 voting irregularities that would affect the outcome – and so the election would have had, more dramatically, to be declared null and void.
Chief Justice Beverley McLaughlin for the dissenting three in the Supreme Court of Canada appeal (including Louis LeBel and Morris Fish) counted 65 votes that were cast irregularly affecting the outcome of the vote. If on the basis followed, all 230 polling stations were roughly alike, there would have been something like 14,950 voting irregularities that would dramatically affect the outcome – and so the election would have to be declared null and void.
The four judges [Rosalie Abella, Michael Moldaver, Marshall Rothstein, and Marie Deschamps of the Supreme Court of Canada] who made the majority decision to allow the appeal and overthrow the decision by Mr. Justice Lederer of the Superior Court of Ontario decided not to look at the additional claim of two voters who were alleged to vote twice and 20 votes they said were not fully appraised. (They declared they had looked at the 20 votes and cleared them.) On the basis that all 230 polling stations were roughly alike, and if the four judges did admit four votes as irregular (two voters voting twice), there would be 920 irregularities that would affect the outcome – and so the election would have to be declared null and void.
If the majority – by some method of reasoning - allowed that there was only one irregularity which affected the outcome of the vote in the 10 polling stations surveyed, they would – considering all 230 polls as roughly alike – have to admit 230 irregularities affecting the outcome of the vote – and so the election would have to be declared null and void because 230 irregular votes would erase the 26 vote majority held by Ted Opitz.
That key fact of the situation seems to have been present in the minds of the four judges who formed the majority because they did everything they could, it seems to me, to deny the possibility of ANY irregularities that would affect the outcome of the vote in the more than 230 polling stations. Indeed, they twisted themselves in knots in order to deny that irregularities existed/or had any bearing if they did. In fact, in what I take to be a key statement they even denied that the strict demands to assure entitlement to vote have any real meaning at all. As Chief Justice Beverley McLaughlin observes :
“My colleagues, with respect, merge the concepts of qualification and entitlement. They take the position that everyone who is qualified to vote and ordinarily resident in the electoral district is entitled to vote.” She goes on :
“…the plain words of the Act condition entitlement on either being on the list of electors or filing a registration certificate…. Section 6, 148.1 and 149 together describe prerequisites of entitlement to vote. Both ss. 148.1 and 149 state that, unless their respective conditions are satisfied, the elector “shall not” [underlined in McLaughlin’s text] be allowed to vote.”
Qualification to vote and entitlement to vote are two quite different things. Proof of entitlement is the primary way fraudulent voting is prevented. As Chief Justice McLaughlin writes, her colleagues “merge the concepts of qualification and entitlement”.
Neither the majority nor the dissenting judges point out that surveying only ten 10 polling stations of more than 230 to satisfy the need “that an application shall be dealt with without delay and in a summary way” fails completely to assure that justice is done. It cannot by the wildest stretch of the imagination be seen as a fair consideration of the irregularities involved. It is, in fact, an insult to reasonable people and a gross failure of the administration of justice. The law is not rocket science. There is no complex issue here. Reasonable and prudent people can see the situation without any difficulty.
A claim was made by the defeated candidate that irregularities affecting the outcome of the election in Etobicoke Centre Riding took place. Elections Canada, the government of Canada, and the courts had every responsibility to survey all 234 polling stations for evidence of irregularities because the issue goes to the very foundations of a democratic society. Instead, only ten polling stations were surveyed, and “the magic test” was applied from the results found there. (Did the irregularities add up to more votes that Ted Opitz won by?) Even with that ridiculously meager survey, the three dissenting judges found for declaring the election null and void. Reasonable and prudent Canadians would not for a moment accept that a survey of ten polling stations would satisfy a search that should cover 234 polling stations. The supposition that it does is close to lunacy.
That is, perhaps, the major and over-riding flaw in the matter of the application to declare the election null and void because of irregularities that affected the outcome of the Etobicoke Centre election.
But it is only one flaw.
Another very serious flaw is the approach taken to the application by the majority judges who overthrew the decision of the Superior Court of Ontario. They decided that laws abut entitlement are meaningless, I suggest, when they decide they are, as the Chief Justice points out above.
Reasonable and prudent people, I believe, would see in the actions and words of the majority judges [Rosallie Abella, Marie Deschamps, Michael Moldaver, and Marshall Rothstein] distinct signs of prejudice, of political partisanship. To begin, they needlessly insult and demean the applicant Borys Wrzesnewskyj in a totally unnecessary statement which is, moreover, misleading about the whole matter. Introducing their approach to the review of electoral practice in the riding, Moldaver writes (for the four) : “we reject the candidate’s attempt to disqualify entitled voters and so undermine public confidence in the electoral process”.
Quite apart from the fact that the dissenting three judges did not agree that many of the voters referred to were “entitled voters”, (1) Borys Wrzesnewskyj was attempting to show that voting irregularities committed by a number of prospective voters disenfranchised the majority of voters in the contested election, by, in fact, delivering the election through a process of marred entitlements. (2) He was attempting, to my mind, to restore public confidence in the electoral process. (3) And he was, it seems now, perhaps naively and honourably mistaken in allowing only the ten polling stations sample to be used in the case.
In the matter of (3), his position permitted the majority judges more easily to dismiss the irregularities as “administrative errors”. “Irregularities” may be the result of administration errors; but they may not be. A survey of all 234 polling stations may have revealed a pattern in faulty “vouching” processes, in the cases of voting more than once, and in cases of faulty oath-taking and recording of oaths taken (to mention those alone) which would throw into doubt their existence as “administrative errors”. Because the review of balloting covered less than 5% of the polling stations, it cannot, I believe be accepted as a fair and just process.
The seemingly cavalier attitude of the majority judges would be regrettable at any time. At a time when the government in power has admitted guilt in election violation in one election and whose political structure is under investigation for election violation in the last election – the seeming cavalier attitude is unacceptable … and, finally, suspicious. The Supreme Court of Canada may be an ivory tower, but it is not so far from the daily actions of the nation that it can be insensitive to major concerns among the electorate.
The judges of the majority declare they are using what Mr. Justice Moldaver chooses to call “the ‘substantive’ approach”, and then he defines the word “substantive” by using it in a sentence - which is an incorrect and confusing way to define. “A second approach, [he writes] sometimes referred to as the ‘substantive’ approach emphasizes the substantive right of the elector to vote”. The Gage Canadian Dictionary defines “substantive” as “independent. real; actual. having a firm or solid basis.”
In Canadian usage none of the words used to define “substantive” can possibly be employed here. None of the words changes the fact that if steps taken to gain entitlement to vote are imperfect, unfinished, or non-existent, the law says they are not valid. Mr. Justice Moldaver, in my opinion, beclouds rather than clarifies the issue. What I believe the majority wishes to convey is that they will not be tied by law when it impedes someone from voting who they describe as “qualified” to vote – even though relaxation of the laws governing entitlement may (almost certainly) invite voting that should not happen. Indeed, lawyers have weighed in on the subject, saying the judgement by the majority will raise the bar higher – by which I take them to mean that questionable activities in polling stations will be harder to act upon.
That may be protecting the enfranchisement of Canadians. It may, on the other hand, be an open assault upon the enfranchisement of Canadians.
Finally, the majority judges not only attack Borys Wrzesnewskyj unfairly in my opinion. They also, I believe, unnecessarily demean the Superior Court of Ontario judge, J. Lederer. And they do so, I believe, in order to disallow his findings. They declare he reversed the onus of proof in dealing with two polls. In my support, the dissenting judges represented by the Chief Justice state that he did not reverse the onus of proof. Lederer, as the Chief Justice points out, repeatedly stated the onus of proof was on the applicant, Wrzesnewskyj.
The majority judges mess up grandly, partly by misusing the English language and partly by trying to make J. Lederer say something I do not believe he had any intention of saying. Here is Mr. Justice Moldaver for the majority :
“The application judge twice misstated the onus of proof in making his crucial finding that votes should be discarded for poll 31. He wrote, ‘I am not prepared to find that on a balance of probabilities these 16 people certified (underlined) that they were qualified to vote’ (para 122 (emphasis added). With respect, that was the wrong question.[[With respect to Justice Moldaver, it was not a question at all. Moldaver is going behind Lederer’s statement to make it what it is not, calling it a question.]] Applying the correct onus, he should have asked whether he was satisfied on the balance of probabilities that these people had not (underlined) certified they were qualified to vote.”
Moldaver is, I believe, writing nonsense, after misreading Lederer’s statement. Behind Lederer’s statement is the fair assumption that he is accepting that Wrzesnewski has proved to his satisfaction that the 16 did not certify they were qualified to vote. I would say that Mr. Justice Moldaver’s claim denigrates a perfectly clear and consistent assertion, unnecessarily muddying the waters – and, at the same time building what I believe is an unfounded basis upon which to reject Justice Lederer’s work.
What comes through to me, reading the documents, to my understanding, is that the majority who overthrew the decision that the Etobicoke Centre election was null and void were determined from the outset to find ways to protect the election of a Harper candidate. I believe the majority judgement reveals partisanship and political bias. If what I say is true, Canadians are going to have to ask themselves what that means for justice in Canada. They are going to have to ask themselves why the four judges would wish to serve the Harper agenda.
Canadians are usually accepting of judgements from the Supreme Court of Canada. In this case, if other Canadians believe what I do about it, then we all must be unceasingly, publicly critical of the majority judges [Rosalie Abella, Marie Deschamps, Michael Moldaver, and Marshall Rothstein]. If the Harper tentacles have reached into the highest court of the land, Canadians must be deeply alarmed, and on the watch.
The Straight Goods
Cheers Eyes Wide Open