Did Elections Canada mislead the Supreme Court?

LiberalBorys Wrzesnewskyj is not waiting for the Supreme Court's decision before firing another volley in his battle over last year's election inEtobicoke Centre.

Thecourt is expected to rule next week on whetherTory MP Ted Opitz can keep the seat which he won by just 26 votes. Either way, though, Wrzesnewskyj says "difficult questions" surroundwhat he calls "problematic"new evidence presented to the court at the last minute by Elections Canada.

The former Liberal MPalleges that theagencyfailed to mentionrelevant facts which should have been disclosed to the justices. For example,he says, Elections Canada argued thatmanyvoters whose ballots were rejected by the lower court because of missing paperwork were really valid, because their names had since turned up on thevoters' list.

What wasn't mentioned,Wrzesnewskyj says, was thatnearly half of thesewere on thelist in other ridings not in Etobicoke Centre.

In April, Wrzesnewskyj persuadedJudge Thomas Lederer of the Ontario Superior Court to throw out the election results becauseof 79 ballots which heruled invalid.In many cases, Judge Lederer found that registration certificates, by which voters get added to the list of qualified electors, were missing or never existed.

Opitz appealed the ruling to the Supreme Court, which came back from its summer recess to hear the case. That's when Elections Canada claimed to have found "new evidence" that 44"invalid" ballots were, in fact,cast byvalidvoters, even though their registrationcertificatescould not be found.

The justicesdid not indicate whether it would even consider thisnew evidence and Wrzesnewskyj's lawyers urged themnot to. However, Wrzesnewskyj says his side didn't have time to fully examine Elections Canada's submission andto discover some revealing details.

In particular, he points to one voter whose namewas quietly dropped, withoutexplanation, fromElections Canada's list of newly-discovered "valid" voters. That, he suspects, is because the same name occurs twice among thosewho cast ballots.

"We've since found that one individual slipped off the list and it appears that person voted twice," says Wrzesnewskyj.

That should have been disclosed, he says although, in a second case, it was: a small footnote on the Elections Canada's chart concedes that two other names also appear to be the same person.

Wrzesnewskyj finds iteven stranger that, inthe very same polling station, Elections Canada provided26names of voters whose names had been"found" on the voters' list. On closer examination, 17 of those 26 names are actuallyregistered in other ridings as far from Etobicoke asNiagara Falls and Jonquire, Que. That means they could not have cast valid votes in Etobicoke.

Besides that, says Wrzesnewskyj, Elections Canada seems to have "found" all these names by trying multiple different spellings, sometimes changing several letters before finding a match.

That, at least,does seem to have been disclosed to the Supreme Court if the justices can read it. In very small letters, a note appears next to eight names, saying, "Handwriting difficult to make out. Many iterations of name were tried."

What the court did not hear is that some of these alternative spellings produced a match with the voters' list only after a bit of a stretch.

In one case, the handwritten initials in the Etobicoke poll records look like "C" and "S." The match that Elections Canada says it found on the voters' list has the initials "Q"and "J." A second surname had five letters beginning with an "R"but, in the match allegedly found, all but one letter was different and it began with an "L."

ForWrzesnewskyj, all this calls into question the credibility ofElections Canada's "new evidence" although he stops short of accusing the agency of trying to hoodwink the Supreme Court.

"I'd hate to think that would even be possible in Canada," he says. "What we do know is that there are very difficult questions that need to be answered about this last-minute evidence."

That is, if it matters. Even if the Supreme Court were to reinstateall 44 votes on Elections Canada's list,thatwould still leave 35 other votes ruled invalid by thelower court. That'snine more than the 26-vote margin which gave Opitz his seat.