‘Every vote counts' is not just a slogan

Globe and Mail

3 days ago

'Every vote counts' has long been a slogan for those urging participation in the democratic process. But those three words − with a question mark − are now shaping up to be a legal question that could ultimately trigger a by-election in the Quebec riding of Terrebonne.
The result, after all the official counting was done, was as close as it could be: Liberal candidate Tatiana Auguste received 23,352 votes in a judicial recount, just one more than her Bloc Québécois opponent Nathalie Sinclair-Desgagné.
Even with that tiniest of victory margins, that would have given the seat to Ms. Auguste and the Liberals – except that riding resident Emmanuelle Bossé then went public with her claim that her mail-in ballot, with a vote for the Bloc, was returned to her on May 2. Elections Canada had used an incorrect postal code for a self-addressed return envelope.
Ms. Bossé has told reporters that she put her ballot in the mail on April 5, well ahead of the April 22 deadline for it to be received by Elections Canada. That ballot was returned to her on May 2, four days after the election. Her additional vote for the BQ would have meant a tie, triggering a by-election.
The BQ filed a court application on May 23, as it is entitled to under the Canada Elections Act, requesting a by-election. That would be a just outcome, not just for Ms. Bossé, but for all Canadians' voting rights.
Elections Canada says that 106 mail-in ballots were sent out with incorrect postal codes. Of those, 85 were returned in time to be counted, five were returned to Elections Canada late and 16 (including Ms. Bossé's ballot) were not returned at all.
It is possible – even likely – that more than just Ms. Bossé's right to vote is at stake. The five late ballots could have been slowed down by their lack of an accurate postal code. And there is a possibility that another 15 votes were cast and not received by Elections Canada, as was the case for Ms. Bossé.
That is a question mark hanging over the basic democratic rights of nearly two dozen voters in Terrebonne. And the arithmetic is clear: Even one more vote for the Bloc in the official count would have resulted in a new election.
And that is a key fact for the court to consider. It's not enough that Elections Canada made a mistake in addressing the envelopes. No election is conducted without hiccups. Perfection is an unreasonable standard. The mistake must be big enough to have potentially affected the outcome of the election in the riding.
Most of the time, that error would have be very large indeed to be bigger or equal to the winning candidate's margin of victory. But in Terrebonne in the 45th general federal election, the margin was tiny, just one vote.
So, if the facts are as Ms. Bossé has described, the resulting irregularities would appear to meet the legal standard in the Canada Elections Act for nullifying the election and ordering a by-election.
There is a downside, both for partisans and for riding residents. For Liberals, they are trading the certainty of a win for the possibility of defeat. The results were surprisingly good for the Liberals on April 28. In a by-election, voters would know that the Liberals would continue on in government no matter the outcome. That could well mean the BQ wins.
More broadly, a by-election would deprive the residents of Terrebonne of representation during the current sitting of Parliament. That is not a step that should be taken lightly.
Neither of those is a good enough reason to avoid a by-election in Terrebonne for the very simple reason that Ms. Bossé's vote is no less important than those from the 60,278 people currently in the official count. Her vote should have been part of that group verdict and was not, seemingly through no fault of her own. And that means one of her fundamental rights as a Canadian was violated.
Democratic rights are not just part of the Charter of Rights and Freedoms. They are set on a higher plane than many other rights in the Charter, beyond the reach of a legislature's ability to use the notwithstanding clause. Freedom of religion, freedom of expression, freedom of peaceful assembly: all are important but can be limited using the notwithstanding clause. But not the right to vote, because the power of democracy ultimately underpins all other rights.
'Every vote counts' has been used as a slogan for so long that it has slipped into the bland world of platitudes. But if Ms. Bossé's case has no other effect, it has demonstrated that real power lies in the hands of each voter.