On Elections and Etobicoke Centre: A Response to Tom Flanagan

“Judge Lederer was clear that his decision was based on the standard of the “balance of probabilities” used in civil litigation. Although “probability” is a mathematical term, judges normally have to arrive at the balance of probabilities without quantitative evidence. The balance of probabilities is thus a synonym for the judge’s informed view of the situation, not buttressed by formal mathematical reasoning. But in a case such as this, which abounds in quantitative evidence, a judge can do better. “

The possible shouldn’t be confused with the probable in elections, TOM FLANAGAN, Special to Globe and Mail Update, Published Tuesday, May. 29, 2012 2:00AM EDT

If one reads Mr. Flanagan’s piece, one will see a wonderful piece of math. Given I have not done Statistics since my time at York University; I will just assume that his stats are right. Or put differently, that if there was an even distribution of votes, then the Conservative would likely have one.

However, that does not deal with the point: what if there was not an even distribution of votes? In his article, Mr. Flanagan notes that: “It is obvious that counting 79 improper votes might have altered the result when the margin of victory was only 26, but how likely is it? Possible is not the same as probable. In fact, a simple statistical test, the binomial test, shows that it was highly unlikely that the 79 votes could have altered the result.”

If one takes that quote at face value, Mr. Flanagan assumes that all of those voters were not there by nefarious means. For example, those people could have been encouraged to vote because someone thought that they might be Canadian citizens. Or in the same vein, there could have been attempts to play with the outcome of the election.

Elections have been around long enough that there are many incidents of election fraud mistakes or misdeeds. This is why a Deputy Returning Officer has to initial ballots and why ballots are counted at the beginning and end of the process. Human nature is fragile and elections seem to push them to the breaking point. Therefore, a number alone should never provide us with an answer.

By the use of the words, “balance of probabilities”, I hope that the Judge had a more expansive view. For example, what are the probabilities of wrong doing? One would have to say that the probabilities of wrong doing are pretty high because Canadian election law has been getting tougher over time to avoid these issues. When my parent started voting, they did not have to show a Government Issued ID to get onto the elector list. Yet, in 2012, I have to present my ID when I vote. These new regulations we were told were supposed to stop mistakes and/or voter fraud. So what are we to do if the amount of discrepancies in a modern election is more than the margin of victory? One would have to assume that we would throw out the election. If the law is not followed, one can only assume that violations will increase. For, if the law is not followed now, we have to assume that the worst possible scenario will occur in the future. Or put differently, law is there to prevent us from doing what “the devil’s on our backs” would have us do when no one else is looking.

However, if I have not convinced you yet; there is another way of describing this same event. In our system, if 79 non-eligible people voted in an election, one can only assume that their intent was dishonest. That is what we do in every other case. For example, if I go on vacation, I am only allowed to bring a certain amount of alcohol into the country. If I am found with more on me, I am asked to pay a fine or customs duty; or the alcohol is taken away from me. Based on the “balance of probabilities”, it is assumed that I knew that I had broken the law. The same is true here. The only problem is that the 79 people in question is much more than the 26 vote difference. Therefore, the election should be voided.

Excluding legal concerns, I believe that the judgement in question is also correct from a policy point of view. Mr. Flanagan argues that “In our current climate of polarized politics, the Etobicoke Centre decision may set off a future flood of judicial challenges.” In this case, he is wrong. As has been noted Mr. Wrzesnewskyj has spent $200,000 of his personal money on this Judicial Challenge. (Borys Wrzesnewskyj seeks full-blown probe into alleged vote suppression in Etobicoke Centre, Thu May 24 2012, Susan Delacourt). From my research, few riding associations have that type of money. For example, according to Calgary Politics.com, in 2010, Stephen Harper’s riding has just over $250,000 in the bank. Even few candidates can afford to spend that type of money on a Judicial Challenge. Therefore, it is very unlikely that campaign managers will “organize legal teams to get into court as soon as possible after an election is held.” In fact, this should tell us that it is almost impossible for the average candidate to mount any challenge to even the most basic abridgment of fundamental democratic values.

As we have learned since the 2011 election, our election system assumes that with a minimal amount of regulation, people’s best intentions will prevail. This is something I deeply believe because I have had the pleasure of participating in campaigns since 1993. I have done various things on campaigns for declared Liberals, Progressive Conservatives and New Democrats; at the federal, provincial and municipal level. In all of that time, in different elections, I have also worked both sides of the table preforming the duties of DRO, Poll clerk and Scrutineer more than once. I have not been dishonest and I don’t know another person from any political party that has been.

However, from time to time, there are errors. In all that time, I have only known of one error. It was a city of York election where the DRO did not understand the training she was given. Once the City Clerk was made aware of the situation, the polling station was shut down. Therefore, the results did not affect the election. However, in this case, in Etobicoke Centre, serious mistakes were mad and it did effect the election.

So we should do the right thing. We should respect all stakeholders in a fair manner. Where there are questions with our fundamental institution, voting, we should be cautions and just have another election. Everyone can make their case to the people and we can all be a little more careful this time.

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