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Respondents Marc-Mayrand-And-Allan-Sperling.Pdf Court File No. 34845 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE ONTARIO SUPERIOR COURT OF JUSTICE) BETWEEN BORYS WRZESNEWSKYJ Appellant (Applicant) and TED OPITZ Respondent (Respondent) and ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), ALLAN SPERLING (RETURNING OFFICER, ETOBICOKE CENTRE), TED OPITZ, ANA MARIA RIVERO, SARAH THOMPSON and KATRINA ZORICIC Respondents (Respondents) AND BETWEEN TED OPITZ Appellant (Respondent) and BORYS WRZESNEWSKYJ Respondent (Applicant) and ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), ALLAN SPERLING (RETURNING OFFICER, ETOBICOKE CENTRE), ANA MARIA RIVERO, SARAH THOMPSON and KATRINA ZORICIC Respondents (Respondents) FACTUM OF THE RESPONDENTS, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), ALLAN SPERLING (RETURNING OFFICER, ETOBICOKE CENTRE) Pursuant to Rule 42 of the Rules of the Supreme Court of Canada (SOR/2002-156) Borden Ladner Gervais LLP Borden Ladner Gervais LLP Scotia Plaza, 40 King Street West 1100 — 100 Queen Street Toronto, ON M5H 3Y4 Ottawa, ON K 1P 1J9 David Di Paolo / Alessandra Nosko Barbara A. Mclsaac, Q.C. TEL: (416) 367-6108/ 6644 TEL: (613) 369-4781 FAX: (416) 361-2454 / 7343 FAX: (613) 230-8842 Trevor Knight, Elections Canada Agent for the Respondents, Marc Mayrand (Chief 257 Slater Street Electoral Officer), Allan Sperling (Returning Ottawa, ON KlA 0M6 Officer, Etobicoke Centre) TEL: (613) 993-1528 FAX: (613) 993-5880 [email protected] Lawyers for the Respondents, Marc Mayrand (Chief Electoral Officer), Allan Sperling (Returning Officer, Etobicoke Centre) 2 ORIGINAL TO: REGISTRAR OF THE SUPREME COURT OF CANADA COPIES TO: W. Thomas Barlow Stephen B. Acker Nicholas Shkordoff Fasken Martineau DuMoulin LLP Ariel Thomas 1300 - 55 Metcalfe St. Fasken Martineau DuMoulin LLP Ottawa, ON KlP 6L5 333 Bay Street Suite 2400 TEL: (613) 236-3882 Toronto, ON M5H 2T6 FAX: (613) 230-6423 E-mail: [email protected] TEL: (416) 366-8381 FAX: (416) 364-7813 E-mail: tbarlow(&,fasken.com Lawyer for the Appellant/Respondent, Ted Opitz Agent for the Appellant/Respondent, Ted Opitz Gavin J. Tighe Guy Regimbald Stephen A. Thiele Gowling Lafleur Henderson LLP Gardiner, Roberts LLP 26 - 160 Elgin Street 3100 - 40 King Street West Ottawa, Ontario Toronto, ON M5H 3Y2 K1P 1C3 TEL: (416) 865-6664 TEL: (613) 786-0197 FAX: (416) 865-6636 FAX: (613) 563-9869 E-mail: [email protected] E-mail: [email protected] Lawyer for Appellant/Respondent Borys Agent for Appellant/Respondent Borys Wrzesnewskyj Wrzesnewskyj Christopher M. Rupar Attorney General of Canada Bank of Canada Building - East Tower 234 Wellington Street, Room 1212 Ottawa, ON Kl A OH8 TEL: (613) 941-2351 FAX: (613) 954-1920 E-mail: [email protected] Lawyer for the Attorney General for Canada 3 Koch Thornton LLP Blake, Cassels & Graydon LLP 360 Bay Street 45 O'Connor St. Suite 400 20th Floor Toronto, Ontario Ottawa, Ontario M5H 2V6 K1P 1A4 Allison A. Thornton Nancy K. Brooks Shashu Clacken Reyes TEL: (613) 788-2200 TEL: (416) 216-0225 FAX: (613) 788-2247 FAX: (416) 368-6302 E-mail: nancy.brooks(a),blakes.com E-mail: allison.thomton(&,ktbarristers.com Agent for the Intervener, Canadian Civil Liberties Lawyer for the Intervener, Canadian Civil Liberties Association Association Fraser Milner Casgrain LLP Shores Jardine 99 Bank Street, Suite 1420 10104 - 103 Avenue Ottawa, Ontario Suite 2250 KIP 1H4 Edmonton, Alberta T5J OH8 David R. Elliott William W. Shores, Q.C. TEL: (613) 783-9638 FAX: (613) 783-9690 TEL: (780) 448-9275 E-mail: [email protected] FAX: (780) 423-0163 E-mail: [email protected] Agent for Intervener, I. Brian Fjeldheim (CEO Lawyer for Intervener, I. Brian Fjeldheim (CEO Alberta) Alberta) Waddell, Raponi Fraser Milner Casgrain LLP 1002 Wharf St. 99 Bank Street, Suite 1420 Victoria, British Columbia Ottawa, Ontario V8W 1T4 K1P 1H4 John D. Waddell, Q.C. David R. Elliott Harold Turnham TEL: (613) 783-9638 TEL: (250) 385-4311 Ext: 201 FAX: (613) 783-9690 FAX: (250) 385-2012 E-mail: [email protected] E-mail: jwaddell(cD,waddellraponi.com Lawyer for Intervener, Keith Archer (CEO B.C.) Agent for Intervener, Keith Archer (CEO B.C.) 4 Sarah Thompson 46 Thirteenth Street Etobicoke, Ontario M8V 3H4 TEL: 416-255-0.779 E-mail: [email protected] Self Represented Respondent Katarina Zoricic 111 Warwood Road Etobicoke, Ontario M9B 5B6 Tel: 416-622-9166 E-mail: [email protected] Respondent TABLE OF CONTENTS PART I — OVERVIEW AND STATEMENT OF FACTS 1 A. Overview 1 B. Statement Of Facts Of The Appellant Wrzesnewskyj 2 C. Statement Of Facts Of The Appellant Opitz 5 D. Additional Facts 5 Election Administration 5 Election Officers And Staff 6 Training Of Election Workers 7 National Register Of Electors And Lists Of Electors 9 Oaths 10 PART II — POSITION OF THE CEO AND RO ON THE APPELLANTS' QUESTIONS 11 PART III — STATEMENT OF ARGUMENT 11 A. Standard Of Review 11 B. The Canada Elections Act 12 Purpose Of The Act 12 Procedural Safeguards 14 Part 20 Of The Act 15 C. Interpretation Of Part 20 Of The Act 17 Use Of Provincial And Municipal Legislation 17 Reformulation Of The Test 18 Burden Of Proof And The Presumption Of Regularity 18 D. Meaning Of "Affected The Result" 19 Irregularities That Do Affect The Result 20 Irregularities That Do Not Affect The Result 20 Procedural Safeguards And The Right To Vote 22 (i) The "Strict Procedural" Approach 22 (ii) The "Substantive Requirements" Approach 24 E. The Test Should Not Include A Distinction Between Mandatory And Directory Provisions Of The Act 25 F. Decision Of The Court Below 26 The "Substantive Requirements" Approach 27 The "Strict Procedural" Approach 27 The "Balanced" Approach 29 G. The "Balanced" Approach Is Appropriate 30 H. In The Alternative, The "Substantive Requirements" Approach Is Appropriate 33 I. Events In Other Electoral Districts Are Irrelevant 34 J. Polling Division 31 34 PART IV — COSTS 35 PART V — ORDER SOUGHT 35 PART VI — TABLE OF AUTHORITIES 36 PART VII — LEGISLATION 37 Canada Elections Act TAB 1 PART I — OVERVIEW AND STATEMENT OF FACTS A. Overview 1. These are the submissions of Marc Mayrand, the Chief Electoral Officer of Canada (the "CEO") and Allan Sperling, the returning officer ("RO") for Etobicoke Centre, in response to the appeals of both Borys Wrzesnewskyj ("Wrzesnewskyj") and Ted Opitz ("Opitz"). The CEO and RO take no position on the merits of the appeal or the facts at issue, with one limited exception arising from an apparent oversight by the application judge. These submissions set out the CEO and RO's position as to the interpretation of the Canada Elections Act (the "Act"), and are made to apprise the Court of policy considerations, from the perspective of election administrators, which may be material to the questions of law that arise in this appeal. 2. At the hearing of the application, the CEO and RO's submissions were similarly limited to apprising the lower Court of policy considerations, ensuring that an accurate factual record was provided to the Court, and making submissions on the application of the Act, specifically the relevant criteria to be applied on a contested election application. 3. The application judge summarized the position of the CEO and RO as follows: In the factum prepared on [the CEO and RO's] behalf and in the submission that he made, counsel for the election officials took no position that favoured either the applicant or the respondent. [...] At no time were any submissions made that touched on any of the specific errors relied on by the applicant and alleged to be irregularities that affected the result of the election. Reference: Joint Condensed Record, Vol. 1, Tab 2; Reasons for decision of Justice Lederer dated May 18, 2012 ("Reasons"), para. 36. 4. Although the application focused on alleged errors by election workers, the lower Court held that none of the errors were intentional or designed to "subvert or undermine the conduct of [the] election": So far as I can see, this election was conducted by responsible public officials and well-intentioned individuals who were motivated by nothing less than a desire to do the job properly. Reference: Joint Condensed Record, Vol. 1, Tab 2; Reasons, para. 8. -2 B. Statement Of Facts Of The Appellant Wrzesnewskyj 5. The CEO and RO accept the majority of the statement of facts of the Appellant, Wrzesnewskyj, insofar as the facts stated pertain to matters of background and the reasons of the application judge. The CEO and RO take no position with respect to facts pertaining to the 10 polling divisions in issue (the "Polls At Issue"). 6. However, with respect, certain of the statements of fact contained in Wrzesnewskyj's factum are taken out of context and require clarification. 7. Contrary to paragraph 3 of Wrzesnewskyj's factum, the CEO has not admitted that there were irregularities, improper vouching or that registration certificates were "never properly completed" in Etobicoke Centre. The CEO admitted that the poll books and registration certificates contained certain information, but, in keeping with the CEO's neutral position, did not admit that those documents constituted irregularities, proved improper vouching, or proved that registration certificates were not completed, which were questions to be determined by the application judge. Further, the request to admit related to all polling divisions in Etobicoke Centre, rather than the Polls At Issue. Reference: Joint Condensed Record, Vol. 7, Tabs 62, 63; Request to Admit of Borys Wrzesnewskyj, Response to Request to Admit of Marc Mayrand (The Chief Electoral Officer) and Allan Sperling (Returning Officer, Etobicoke Centre). 8. The statement of the CEO quoted at paragraph 9 of Wrzesnewskyj's factum has been taken out of context. The CEO had asked to appear before the Standing Committee on Procedure and House Affairs to address various matters that had been reported in the media, including "robocalling" and allegations of improper activities in electoral districts other than Etobicoke Centre, all of which were wholly irrelevant to the matters at issue before the application judge.
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