Conservative Ted Opitz remains the MP for the Toronto riding of Etobicoke Centre after a split decision from the Supreme Court of Canada.
Four of the Supreme Court judges restored 59 of the 79 votes that a lower court judge threw out, preserving Opitz's narrow 2011 election victory.
Former Liberal MP Borys Wrzesnewskyj had challenged the results based on apparent voting irregularities at several polling stations on election day and an Ontario court judge ruled in his favour last May. Wrzesnewskyj lost to Opitz by 26 votes.
But the Supreme Court ruled Thursday that the entitlement to vote cannot be annulled due to procedural errors and that there was a lack of evidence that most of the discarded ballots came from voters who were not qualified to vote.
Wrzesnewskyj found a silver lining in the outcome, despite losing his case.
"The next federal election will be run very differently," he said. "That means we're all ahead. We've all won."
Split decision on voting irregularities
The majority of the judges has a set a high bar for anyone wanting to contest an election result due to failures in record keeping.
They made it clear that that the onus is on the applicant to have very solid proof – proof that might be difficult to establish – that anything went wrong.
On the matter of missing registration certificates, the Supreme Court found that it was up to Wrzesnewskyj to prove that they were missing and the fact they cannot be found is not sufficient evidence.
They were satisfied that the certificates could have been "misplaced" because the Deputy Returning Officer said that she "thought" they had been completed. If that sounds vague, the majority said, it is because she was trying to recall something that happened eight months earlier.
The only irregularities the court would accept were instances where there was no voter's signature on the registration certificate. The signature is supposed to be the voter's statutory declaration that he or she is over 18 and a Canadian citizen.
However, the court did allow registration certificates where an elections official has signed instead of the voter, reasoning that the official "would not put his signature on completely filled out registration forms without being satisfied of the voters' entitlement to vote," so 10 votes were restored.
The majority also restored the ballots that had been negated due to errors in vouching, which occurs when a voter has no ID and someone swears as to their identity. There were no errors, said the court, only errors in record keeping. Even though vouching paperwork was missing, the court found that initials were enough to prove that the person doing the vouching was a relative of the voter being vouched for.
The majority also dismissed Wrzesnewskyj's cross appeal, which centered on the fact that many voters cast their ballots in the wrong polling division.
The judges said definitively that, "Voting in the wrong polling division had no effect on the result of the election … it is not comparable to voting in the incorrect riding."
Chief Justice dissented
What is surprising is that three of the judges reached an opinion that is almost diametrically opposed to the four in the majority.
Chief Justice McLachlin and Justices Lebel and Fish found that 65 of the 79 ballots discarded by the lower court judge should have been tossed.
The minority judges took a much harsher view of procedural errors. However, the majority leaned hard towards the entitlement of every qualified Canadian to vote.
The daunting logistics of running a federal election seemed to influence the majority judges.
"A federal election is only possible with the work of tens of thousands of Canadians who are hired across the country for a period of a few days, or, in many cases, a single 14-hour day," they wrote.
There will always be irregularities, was the conclusion.
The court also found that "annulling an election would disenfranchise not only the persons whose votes were disqualified, but every elector who voted in the riding."
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