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Supreme Court Decision

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Supreme Court Decision

Seven judges decided this case (not the usual nine because there was a vacancy on the bench until recently). The court split: four judges restored the election result; three judges, including the Chief Justice, sided with the Superior Court judge who initially heard the case and overturned the election result.

The majority decision is well-written and well-reasoned in a lot of respects but not all ( as is the minority decision). The logic of the majority is that it is only irregularities which allow a person to vote who had no right to do so that should be considered.

So, for example, it doesn’t matter that the person who vouched for a voter who didn’t have i.d. was not on the list of electors for the same polling division, even though the Elections Act says they must be.

Likewise the majority says it doesn’t matter that in two instances one person vouched for more than one voter even though the Act says you can only vouch once in any given election, period.

The minority says that these breaches of the Act are not trivial and the minority decision implies that these safeguards exist for a valid purpose. Allowing votes to be cast contrary to the procedural safeguards is not fair and can lead to uncertainty.
As the minority says of the majority: “My colleagues, with respect, merge the concepts of qualification and entitlement [to vote].”

The majority has a disclaimer early in its reasons that their decision will not lead to a wholesale disregard for the technical requirements of the Act: “In recognizing that mistakes are inevitable,  this Court does not condone any relaxation of training and procedures”.

But what about future election day officials who methodically breach procedures, despite the best intentions and skills of those who may train them, because they know the SCC has overlooked the exact same practices here?

The majority excuses 26 missing registration certificates at poll 426, the fact that the page of the poll book recording the number of people who voted by registration certificate was blank, and the absence of addresses for any registration certificate voters, as well as the page of the poll book for recording vouchers being left blank and none of the 26 registration certificate voters appearing on the final list of electors which would normally be the case if the certificates had been sent to the returning officer for the riding after the election. They say this last point could simply mean the certificates were lost after the election.

There comes a point where the accumulation of so many different lapses in protocol creates a general discomfort with the entire process. I think that point was reached here even though cogent explanations may exist for particular lapses, as was argued by the majority (such as addresses were not recorded in the poll book because it was a stand alone poll, ie. a senior’s residence “so everyone lived there (which they checked))”.  Obviously the minority felt this accumulation of lapses to be beyond acceptable as well.

The majority says it’s a serious thing to overturn an election result: “annulling an election would disenfranchise…every elector who voted in the riding.” And, “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.”

True, but I wouldn’t be surprised if in our newly polarized world of federal politics, peopled with ends-justifies-the-means Republican-style Tories and the NDP, this decision loosens the degree of control which Elections Canada has formerly managed to exercise over the electoral process. There were just too many procedures not honoured in Etobicoke which have now been shown by the Supremes not to matter when it comes right down to it.

THE JUDICIAL POLITICS: the Chief Justice it is safe to say based on her public utterances since 2004 despises Harper’s politics. She wrote the minority decision which would have resulted in a new election and the current Conservative losing his seat, at least temporarily.

She was accompanied in her dissent by Morris Fish and Louis LeBel, both of Quebec.    All three were appointed by Chretien. Fish is the strongest proponent of individual rights and freedoms that the Supreme Court has left.

The majority decision was co-written by Marshall Rothstein and Michael Moldaver.  Both were appointed by Harper. Moldaver is a reactionary ‘throw away the key’ type of judge in outlook.
Harper so appreciated Moldaver’s views that he appointed him even though Moldaver isn’t bilingual.

The two judges who signed on in support of the majority decision are Rosalie Abella, definitely Paul Martin’s worst appointment and Marie Deschamps. While very smart, Abella is a strident feminist. Good judges shouldn’t be strident anything except, perhaps, perfectionists. I’m guessing that in this case she was attracted by the majority decision’s analytical clarity in laying out the approach which should be taken to contested elections.  Deschamps is no longer on the Court. She was replaced by Richard Wagner. She retired in August (this case was heard in July).  Deschamps was appointed by Chretien.  Deschamps is a blank for me.

So aside from Abella and Deschamps, the court split in this case along party lines. For Canada’s Supreme Court, unlike the U.S.’s, this is unusual. There could henceforth be a war of views, if not of personalities, between Moldaver and MacLachlin ( the Chief Justice), but not necessarily so. Time will tell.

It does seem unusual though for the court to have split the way it did.  In the past many years, on important public policy issues, like the recent reference regarding a proposed national  securities regulator, the court has spoken with a unanimous voice.

Not this time.

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