Emmett Macfarlane considers yesterday’s Supreme Court ruling on Etobicoke Centre.
The majority decision has a firm grasp on the practical realities at place. The judges write that “our electoral system must balance several interrelated and sometimes conflicting values. Those values include certainty, accuracy, fairness, accessibility, voter anonymity, promptness, finality, legitimacy, efficiency and cost. But the central value is the Charter-protected right to vote.” [para. 44] Further, they note that the “current system of election administration in Canada is not designed to achieve perfection, but to come as close to the ideal of enfranchising all entitled voters as possible. Since the system and the Act are not designed for certainty alone, courts cannot demand perfect certainty. Rather, courts must be concerned with the integrity of the electoral system.”
This may be cold comfort to those who worry about fraud or simple errors resulting in ineligible votes. Some may not even care that there was no evidence of enough truly ineligible ballots to affect the outcome (let alone zero evidence of fraud). But if the cost of procedural safeguards to ensure absolute certainty in this regard is the disenfranchisement of legitimate voters then we may need to live with the reality that no system is perfect. At the very least, as the judges in the majority were correct to conclude, we need to have concrete evidence that results have been adversely affected by potential errors before we start overturning elections.
Adam Goldenberg also praises the decision.
Like Bush v. Gore, Opitz v. Wrzesnewskyj was a split decision. In 2000, five Republican-appointed justices voted to end the Democrats’ last hopes of victory. Thursday, by contrast, two of the four judges who voted to keep a Conservative MP, Opitz, in office were Liberal nominees.
But in Canada, such partisan math does not matter. True, the Etobicoke Centre dispute was about politics; an election was won by 26 votes, a losing candidate challenged the result, a lower court overturned it, and the winner appealed to the country’s higest court. But the Supreme Court’s decision turned on its mandate to set precedent, not settle scores. And, unlike their American brethren, the Canadian court got it right.