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Wrzesnewskyj v Attorney General (Canada)

Wrzesnewskyj v Attorney General (Canada)

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Published by Omar Ha-Redeye

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Published by: Omar Ha-Redeye on May 20, 2012
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CITATION:
rzesnewskyj
. 
Attorney 
General 
Canada), 
2012 
ONSC 
873
COURT 
FILE 
NO.: 
CV
-11-
429669
DATE: 
0120518
ONTARIO
SUPERIOR
COURT OF 
JUSTICE
BETWEEN:
BORYS WRZESNEWSKYJ
Applicant
and
ATTORNEY GENERAL 
OF 
CANADA,
MARC 
MAYRAND 
(THE
CHIEF
ELECTORAL 
OFFICER),
ALLAN
SPERLING
(RETURNING 
OFFICER,
ETOBICOKE
CENTRE), 
TED 
OPITZ,
ANA
MARIA 
RIVERO, 
SARAHTHOMPSON 
nd
KATRINA 
ORICIC
Respondents
LEDERER 
.:
Gavin 
Tighe 
& 
tephen 
Thiele, for
fneApplicant
David 
Di
Paolo
&Alessandro
Nosko,
for
Marc 
Mayrand 
(The 
Chief 
lectoral
Officer)
&
Allan
Sperling 
(Returning 
Officer,
Etobicoke
Centre), 
Respondents
W. 
Thomas 
Barlow 
&Nicholas 
Shkordoff,for
Ted 
Opitz,
Respondent
HEARD: 
pri123
-27, 
30,
May
-2, 
2012
[] 
Ahard
-
fought
electionresulted
in
a 
narrow
win 
or
the 
respondent, 
Ted 
Opitz. 
Given
the
number 
of 
votes
cast 
and 
the
small 
plurality,
it
is 
hardly
surprising
that 
the 
runner
-up, 
the
applicant,
Borys Wrzesnewskyj, would 
want
to 
closely
scrutinize
the
ballots 
and
the votingprocedure.
Given
the 
complexity
ofa 
federal
election, 
the
number of
workers
required
and 
the
short
time 
from
the
calling
of
the
election to
the
date 
of
thevote, 
it 
is 
understandable 
that
mistakes 
will 
be 
made.
In 
this 
case, theapplicant
argues
that 
the 
mistakes 
wereof
a 
nature
and
number 
hat 
the election
shouldnot
stand.
[2]
At
the
outset,
it 
should 
be
said 
that
there 
was
no
suggestion
of 
any
v~~rongdoing 
on 
the
part 
of
ither
the 
applicant
or the respondent.
The
issues 
relate
to
the
conduct 
of
he 
election,atcertain 
polls,
in 
the 
electoral
district
of
Etobicoke
Centre.
As
a 
esult,
the
Chief
lectoral 
Officer
and
the
returning 
officer 
for 
Etobicoke
Centre
were 
also
represented.
For 
ease 
of 
eference
and
consistency,
these
reasons 
will 
refer 
to
Borys Wrzesnewskyj 
as 
the "applicant
",
o 
Ted 
Opitz 
as
the
"respondent"
and 
tothe
Chief
lectoralOfficer
and 
the 
returning
officer,collectively,
as 
the
 
Page:
2
"election
officials
".
Employeesof
lections
Canada
working
atpolls
on
the
day
of
he
election
(such
as
deputy
returning
officers,
poll clerks
and
registration
officers)
are
collectivelyreferredto
as
"polling
officials
".
INTRODUCTION
Background
[3]
The
41S`
Canadian
General
Election
took
place
on
May
2,
2011.
The
election
inthe
electoral
district
of
Etobicoke
Centre
was
decided
bya
plurality
of
only
26
votes.
This
application
seeks
to
set
aside
that
election.
[4]
All
parties
acknowledge
that,
in the
course
of any
general
election,
there
will
be
errors
inthe
record
keeping
required
of
he
officials
who
conduct
t.
These
errors
may
lead
toquestions
concerning
whether
ll
of
hose
who
voted
were
properlypermitted
to
do
so.
This
isdistinct
from
whether
they
were
qualified
to
vote.
A
erson
is
qualifiedif
he
or
she
is
at
least
eighteen
years
of
age
and
a
Canadian
citizen
(see:
Canada
Elections
Act,
S.C.
2000,
.
9,
.
3).
Once
qualified,
a
person
is
entitled
to
have
their
name
placed
on
the
list
of
lectors
(see:
Canada
Elections
Act,
s.
6).
The
name
of
a
person
is
recorded
on
he
list
of
lectors
for
the
pollingdivision
in
whichhe
or
she
is
ordinarilyresident.
A
erson
will
be
given
a
ballot
and
s
able
to
vote
after
he
or
shehas
been
identified
as
an
individual
whose
name
s
on
he
list.
[5]
Mistakes
are
made.
Forms
may
not
be
filled
out
correctly,
orrecorded
properly,in
the
poll
books
that arerequiredto
be
kept.
As
a
result,
t
may
not
be
clear
whether
the
preconditionsto
the
exercise
of
he
right
to
vote
were
satisfied.
Where
irregularities
that
affect
the
result
of
he
electionare
present,
the
Canada
Elections
Act
providesthe
means by
which
the
election
may
be
set
aside.
Some
rrors
in
record
keeping
may
onstitute
irregularities
thataffect
the
result
of
an
election.
They
may
not
be
errors
on
the
part
of
he
voter
but,
rather,
on
the
part
of
he
officials
who
run
the
many
polling
stations
in
any
riding
across
the
country.
Where
the
result
of
the
election
is
close,
t
may
be
that
these
mistakes
will
be
enough
that
the
Canadian
public
cannot
be
confident
in
the
result
or
the
process
that
lead
to
it.
It
is
that
proposition
on
which
this
application
rests.
[6]
One
does
not
have
to
dig
very
deep
to
understand
that
this
case
presents
a
true
conundrum.
At
its
core,
this
case
concerns
the
confidence
that
Canadians
must
have
in
our
electoral
process.
If
that
confidence
is
diminished,
t
follows
that
our
interest
in,
and
respect
for,
government
will
be
similarly
diminished.
It
surely
follows
that
if
people
who
re
not
qualified to
vote
were
permitted
to
do
so,or
if
there
is
a
concern
that
people
may
have been
permitted
to
vote
mare
than
once,
confidence
in
our
electoral
process
will
fade.
The
provision
of
the
Canada
Elections
Act
that
provides
for
this
application
allows
for
a
response
to
those
concerns.
Without
theprotections
found
inthe
Canada
Elections
Act,
Canadians
would
lose
confidence
in
the
electoral
process.
The
conundrum
arises
in
that
making
t
too easy
to
set
aside
the
results
ofan
election
may
also
lead
to
a
loss
of
confidence
inthe process.
Mistakes
in
the records
are
inevitable.
As
uch,every
time
there
is
a
close
election
the
result
in
the
affectedelectoral
district
may
be
susceptible tochallenge.
 
Page:
3
The
Application,
Part
1
[?]
The
application
was
brought
pursuant
to
s.
524
of
he
Canada
ElectionsAct:
524.(1)
Any
lector
who
was
eligible
to
vote
in
an
electoral
district,
and any
candidate
in
an
electoral
district,
may,
by
application
to
acompetent
court,
contest
the
election
in
that
electoral
district
on
the
grounds
that
(a)
under
section
65
the
elected
candidate
was
not
eligible
to
be
a
candidate;
or
(b)
there
were
irregularities,
fraudor
corrupt
or
illegal
practicesthataffected
the
result
of
he
election.
(2)
An
pplication
may
not
be
made
on
the
grounds
for
which
a
recount
maybe
equested
under
subsection301(2).
[8]In
this
case,
a
judicial
recount
was
conducted
on
May
18,
19,
20
and22, 2011,anda
decisionreleased
on
June15,
2011.
The
ssuesraised
here
are
distinct
from
those
that
could
have
been,
r
were,
onsidered
there.
t
was
not
suggested
that
any
candidate
who
tood
for
election
in
Etobicoke
Centre
was
not
qualified
to
do
so.
Most
importantly,
it
was
acknowledged
by
all
parties
thatthere
was
no
suggestion
of any
"fraud
or
corrupt
or
illegal
practices"in
the
conduct
of
the
election.
The
application
is
founded
on
the
submission
that
"there
were
irregularities...
thataffected
the
results
of
the
election
".
Ipoint
this
out
at this
earlystage
of
hese
reasons
to
make
clearthat
there
is
no
suggestion
that
anyone
involved
attempted
to
subvert
or
undermine
the
conduct
of
his
election.
So
far
as I
can
see,
this
election
was
conducted
by
responsible
public
officials
and
well
-
intentionedindividuals
who
were
motivated
by
nothing
less
than
a
desire
to
do
the
job
properly.
Voting
[9]
To
come
to
grips
with
this
application,
onemust
begin
by
understandingthe process
that
leads
to
a
vote
being
cast in
a
ederal
election.
[
0]
Every
person
who
s
qualified
as
an
elector
is
entitled
to
have
his
or
her
name
includedinthe
list
of
lectors
for
the
polling
division
in
which
he
or
she
is
ordinarily
resident
and
to
vote
at
the
polling
station
for
that
polling
division
(see:
Canada
Elections
Act,
s.
6).
[11]
How
does
a
name
get
on
the
list
of
lectors?
When
n
election
is
called
(when
the
writ
is
dropped)
he
Chief
lectoralOfficer (see:
Canada
ElectionsAct,
ss.
13
-15)
s
required,
"assoon
aspossible"
to
prepare
"a
preliminary
list
of
electors
,for
each
polling division
in
an
electoral
district"
(see:
Canada
Elections
Act,
s.
93).
An
electoral
district" is
commonly
referred
to
as
a
"riding
".
Each
electoral
district is
divided
intopolling
divisions
(each
containing
at
least
2~0
electors),
which
identifies
where
each
elector
is
to
cast his
or hervote(see:
Canada
Elections
Act,
s.
538).
The
preparation
of
hepreliminary
list
relies
on
theRegister
of
lectors,
which
the
Chief
lectoralOfficer
is
requiredto
keep,
maintain
and
update
see:
Canada
ElectionsAct,
ss.
44
-46).
TheCanada
Elections
Act
provides
a
process
by
which
thepreliminary
list
is
to
be

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