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Top court rules in favour of Tory Opitz

OTTAWA — Prime Minister Stephen Harper is prepared to look at updating Canada’s election law after a divided Supreme Court ruled Thursday that a Conservative MP legitimately won his seat in 2011 despite numerous procedural irregularities.

Harper said he’s “very happy” that the top court, by a slim 4-3 margin, affirmed Ted Opitz’s razor-thin, 26-vote victory in the Toronto riding of Etobicoke Centre over Liberal incumbent Borys Wrzesnewskyj.

Nevertheless, he did not dismiss out of hand Liberal calls for an overhaul of the Canada Elections Act to keep pace with technology-driven abuses and what they described as more brazen dirty tricksters.

“Obviously, we’ll always take a look at a law — as you know, we promised to look at some reforms to our election laws,” Harper said on his way out of the House of Commons, accompanied by a smiling Opitz.

“But in this case, the important thing is that it was the voters who made the decision and that’s the way a democracy is supposed to work.”

Elections Canada had no immediate comment on the ruling, other than to say the watchdog agency would “take time to carefully review” the decision.

However, chief electoral officer Marc Mayrand has said in the past that he may recommend changes in the law to better regulate the use of technology, such as automated call centres and the massive voter identification data bases amassed by parties.

He’s also said the law needs to be changed to ensure exorbitant legal costs don’t prevent individuals from challenging dubious election results.

Wrzesnewskyj reportedly spent as much as $300,000 in his legal battle to overturn the May 2011 results in Etobicoke Centre.

He won an Ontario Superior Court ruling that set aside Opitz’s victory because of procedural irregularities with 79 ballots, most involving missing or improperly filled out forms for voters who were not on the voters’ list or had no identification. Opitz appealed the ruling to the Supreme Court.

The high court overturned the lower court ruling because it said 59 of those rejected votes should have been allowed to stand. That means Opitz essentially won his seat by a mere half dozen votes.

An election official’s failure to follow a procedural safeguard is not sufficient to invalidate a vote cast by an individual who was otherwise qualified to vote, the court ruled.

That approach gives effect to “the underlying Charter right to vote, not merely the procedures used to facilitate that right,” justices Michael Moldaver and Marshall Rothstein wrote for the majority.

“We reject the candidate’s attempt to disenfranchise entitled voters and so undermine public confidence in the electoral process,” they continued — a line that was repeated several times by Conservative MPs later in the day in the House of Commons.

The three-justice minority, meanwhile, led by Chief Justice Beverley McLachlin, argued that the procedural requirements are “fundamental safeguards for the integrity of the electoral system.”

Procedural irregularities other than those that are “merely technical or trivial” should be sufficient to invalidate a vote, they said.

In a statement, Opitz thanked the court.



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