Borys Wrzesnewskyj: Democracy Wins in Next Federal Elections

The New Pathway’s John Pidkowich interviewed former MP Borys Wrzesnewskyj following the Supreme Court’s decision on Oct. 25, 2012, upholding the 2011 federal election results in Etobicoke Centre.

John Pidkowich - Please elaborate on remarks you made to the media following the Supreme Court’s decision.

Borys Wrzesnewskyj - Before the [Oct. 25] decision, I was asked “Do you think you won?” and I answered “I don’t know”. But what I do know is that the next federal election will be run very differently and that means democracy wins and every Canadian wins, And that’s been the result of this. Two days before the decision was rendered, Canada’s Chief Electoral Officer Marc Mayrand when asked about the three by-elections called last weekend, said that the training and the procedures are going to be different, a lot tighter because of the lessons learned from Etobicoke Centre. So that’s exactly what I had said. And he said something else which I thought was quite instructive: “But that’s not all that needs to change – the legislation needs to change.”

That brings me back to last June when I had a really tough decision, because I became aware of information that was brought to me, that really unnerved me, because it pointed to subversion of the democratic process during the election. And when I spoke with legal experts in electoral process, they almost all unanimously told me at that time “Borys, there is nothing that can be done.” They pointed out to me that the Elections Canada Act is outdated, full of loop holes and I’ve got less that 10% chance of winning, and that the worst part of it was, that to do this legal challenge would cost between one quarter and half of a million dollars. Once again, the law is outdated and goes back to a different time. When you bring forward cases that are in the public interest, costs are not recoverable, even if you win, it’s sunk, it’s a special category. It’s a quaint notion from a different era when legal costs were not what they are today. So, as the law was explained to me, the parameters within which we could work, would work against us. So I had to think really hard about this. And I made a final decision that, no, this could not be allowed. It was quite personal because what if it was actually me [voting].

The first time I went to vote was with my Babcia in the Queen/Bathurst neighbourhood. That was during the time when I was a little kid [and] a lot of the neighbourhood was still Ukrainian. And I remember when she explained how important it was; she never missed a vote. In her eighties when she had a stroke and she had a bit of a hard time getting around, I would drive downtown to take her to vote because it was that important for her. She would say “Nas nikoly ne bulo holosu, poky my maly pravo holosuvaty v Kanadi.”

JP - You place great significance on your Grandmother’s entitlement to vote, and she did not want to lose her franchise of having the right to vote.

BW - Exactly, when I thought of what the information was that was brought to me, especially in that family context, I had no choice, I had to proceed with this. There were two incidents brought to my attention and it’s interesting as both speak to how important this whole concept of voting is for Ukrainians because of the cultural – historical background of our people.

The first coming from a lady, a new Canadian and she volunteered to scrutineer and it was a small poll for a single apartment building on Richview. She arrived there after work at the end of the day and she saw a man. She thought it strange that he came in, was handed a ballot and then left the building. The voting was only for residents of that building. She went to the Elections Canada official and said “That man never showed you ID” – “Oh, yes he did” – “No, I was standing right here” identifying herself as an scrutineer. “Oh, I must have forgotten.” At the end of the day, [she went about scrutineering] as she had been trained in Ukraine, whereas here we basically told all our volunteers to scrutineer the count. But what she did is made sure that the tally matched the number names crossed off [the voters’ list]. At the end of the night, she said there were 16 extra ballots. She talked to the DRO [District Returning Officer] and then DRO said don’t worry about it, we’ll fix it. So she came and reported that to me.

Now that’s pretty astounding. So I took a look at the results from that vote, extrapolated it and compared it to two previous elections and there’s a spike that appears to match those 16 ballots in terms of percentage of turn-out, because on average there was about 2% increase in turn-out and 2% increase in the Conservative vote. And it’s not a big poll location where there’s 400-odd voters because it’s a single apartment building. And there was an equivalent spike in the Conservative vote. This is the kind of data that during the Orange Revolution, when we’d run analyses of polls, we would conclude that they were the target of ballot box stuffing.

When we did a full analysis of all the 200-plus polls in Etobicoke Centre, there was a handful that jumped out because they had an increase in voter turnout of 30-50%, way out of what the plus-minus was for the [other] polls. But those same polls had a corresponding jump of between 40-70% for the Conservative vote. Those are the kind of statistics in Ukraine that during press conferences as Western observers, we would point to as being the target of ballot box stuffing. But this wasn’t Ukraine, it was Etobicoke Centre!

As for the second incident, my aunt called and said that Olga Wowk who has been asking to get your number because she’s got extremely important information for you about what happened on Election Day at St. Demetrius Senior’s Residence. Our campaign had heard that there was a commotion and problems and some yelling at the poll, but we did not have the details. In fact, we had heard of similar incidents at a number of polls on Election Day and what was interesting is that these weird occurrences seem to be happening at all of our strongest polls, where I do the best. We suspected that Conservatives were causing some kind of commotion, but we really didn’t know what was going on. So Ms. Wowk gave me a call and described what happened. I said we need to meet in person. She and the other two Elections Canada officials from St. Demetrius Residence met with me and they described the incident.

Both my campaign workers and I listened in shock as they described how men arrived, one man going through the complex removing all the vote reminder cards from the seniors’ doors. And then, after breakfast, when the seniors starting coming down to start voting, they were in a hurry because there was a bus waiting to take them for a day trip. When the officials opened up the poll, all of a sudden these men start yelling. In fact, the word the officials used to describe what these men were doing was “raging” at the seniors, physically blocking them, bullying them to the point where a lady in a walker was knocked over. All the seniors turned and ended up leaving in the confusion. Sitting there [in disbelief], we asked them if they would be willing to swear affidavits and unhesitatingly they agreed.

Again, my lawyers stated you can enter this vote suppression [information] into the court record, but you can’t argue it in front of a judge because it’s about ballots in the box that shouldn’t be there. You cannot argue about ballots that never made it into the box. It’s a big hole in the law. And they also pointed out that this has never been tested before the Supreme Court in 145 years of Canadian history...

As for the statistics, they pointed out to me that yes, the statistics clearly seem to point to something. But in Canadian electoral law you cannot argue statistics, you have to argue individual ballots. But you cannot trace the people [- who voted] because of the secrecy of the ballot and the Privacy Act, you’re not allowed to know who the people were.

I had to think long and hard about this and there was a 30-day post-election deadline to begin this action. This is about democracy - I have fought for democracy in Ukraine – what happens in Ukraine pains us all – but this is our home, and then you have people like my Babcia for whom voting is so important and they had that right to vote stolen. Some call it vote suppression tactics, I call it stealing one’s right to vote. And they did it to our seniors. I couldn’t just walk away from it. I knew something had to be done. So I took it to the courts. Under the Elections Canada Act, you don’t just go to the courts, the courts review all your evidence to see if it’s serious enough, and there is the equivalent of a court hearing that decides whether or not you can proceed. So it does not come as an automatic right to have a court case. I won that [hearing]. Still, we were really perturbed by what the statistics were showing, so we wanted to know and get access to the documents. We won that [decision] as well – we got a court order to examine the documents. What was interesting was that when we examined one such poll where these problems occurred, we found that people were coming in from 14 other polls to vote. At yet another poll location, one person signed-off on 86 registration certificates (a method of getting a ballot if you’re not on the [voters’ registration] list.). This person we found out was an Elections Canada official.

We then thought we had a really strong case. Never mind the 10% odds; it was clear to us the integrity of the vote had been undermined. There was another court decision I won in December, the right to have an expedited process, because of the importance of this [case]. In January, the Conservatives stated that they were going to call some 1500 witnesses, every Elections Canada official in Etobicoke Centre, every scrutineer – it was basically a stall tactic – to hear all of these witnesses would take between 4 to 5 years. This would have bankrupted me. So I decided to take a calculated risk. The judge asked if there was some way to limit the scope of the case. I instructed my lawyer to reply that we’ll agree to a sample of ten polls – less than 5% of the polls in Etobicoke Centre. The Conservatives agreed – took the bait – and that’s why we had a spring hearing as opposed to a hearing in 2015 or 2016. In May we won the Ontario Superior Court case, the election was declared null and void. Then [the Conservatives] appealed to the Supreme Court and wanted to drag out [the case] to October. However, the Supreme Court heard the appeal in July. It took forever for a decision, and now we know why. It appears that there were huge differences of opinion within the Supreme Court.

JP - I thought this decision would have been made sooner.

BW - Everyone thought that because that’s what the law states, “heard on an expedited basis.” What became clear is that Justice Moldaver, one of the more recent Supreme Court appointees, wrote the majority decision for four justices. What’s interesting is that the three most senior justices on the Bench, wrote the dissenting opinion. In fact, it was the Chief Justice who wrote the dissenting opinion, and my lawyers pointed out that they had never seen such harsh wording directed at other justices. She concluded by saying that she cannot accept the [majority] view. She made all the legal arguments… So there’s a muddled situation – a split decision 4-3. As well, previously, you had a Superior Court Justice, the one who actually spent the most time on this [case], rule the election was null and void. It’s really problematic.

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Former MP Borys Wrzesnewskyj