Opitz v. Wrzesnewskyj, 2012 SCC 55

Arising out of the disputed election results in Etobicoke-Centre, this case required the Supreme Court of Canada to determine whether the election results in that riding should be set aside on the basis of the potential that votes were cast by ineligible voters. The opinion of the majority, written by Justice Rothstein, begins by saying, “A candidate who lost in a close federal election attempts to set aside the result of that election.” This statement sets the tone for the following judgment, which took a liberal approach to interpretation of the Canada Elections Act, relying on s.3 of the Charter of Rights and Freedoms which guarantees every Canadian citizen the right to vote for a Member of Parliament, resulting in the rejection of Mr. Wrzesnewskyj’s appeal.

While the Act contains numerous procedural safeguards, the majority preferred to interpret these as means to ensure that non-eligible persons do not vote, rather than enforce strict compliance with them. Because the language of the Act makes clear that it is at the court’s discretion whether it will declare the election null and void on the basis of voting irregularities, there is space for the Court to exercise its discretion. Justices Rothstein and Moldaver writing for the majority declined to alter the outcome of the election on the basis of the irregularities that were referred to. They saw the fundamental purpose of the statute as being the enablement of voting, supporting this opinion with the constitutional principle that every citizen is entitled to vote.

The Chief Justice wrote a dissenting opinion, joined by two puisne justices, which followed a different principle in its interpretation of the Act. In her view, the Act’s purpose is primarily restrictive; it is designed to prevent unauthorized voting from occurring. Such an approach led her to find that non-compliance with procedural steps under the act that insure eligibility for voting is sufficient to cast doubt on the result of the election, and grounds for the court to exercise its discretion to void the result.

This case demonstrates how the legislative purpose of a statute, when it engages an issue covered in the Charter, can be informed by those constitutionally guaranteed rights and freedoms. This approach might be seen to be contrary to the established modes of statutory interpretation, and indeed the minority did not find this argument convincing. The interpretation adopted by the majority suggests that future invocation of the Charter to inform statutory interpretation will be looked upon as persuasive where it is relevant.