Court refuses to declare NAW election invalid

In a decision released on July 12 2019, Mr. Justice Martin James of the Ontario Superior Court of Justice dismissed an application by former Councillor Kevin Clarke to have last November’s municipal election declared invalid because of alleged vote counting irregularities. He claimed that the recount procedure used after the initial procedure was so deeply flawed that the results ought to be quashed clearing the way for another recount. The Township agreed with his submissions and joined with him as a party in bringing the claim.

In support of their application, Clarke and the Township took issue with the original recount which was conducted by Bryan Martin, CAO of Bonnechere Valley. The defects alleged included the following:

  1. The recount was conducted in the Township of Bonnechere Valley where Mr. Martin was employed.
  2. The scrutineers had difficulty assessing the “number of votes counted in the recount given the lack of proximity” between themselves and the persons conducting the recount.
  3. The doors were not locked, and
  4. The results of the recount were not double checked.

Mr. Justice James also noted that Marilyn Casselman, the NAW Clerk, swore an Affidavit which made the following additional assertions:

  1. Candidates rather than scrutineers had control of the ballot boxes some of which had seals that were undone, and
  2. The original staff and scrutineers were not used at the recount.

In giving his reasons for dismissing the application, the judge said,

“[13] On the record before me, I am not persuaded that the recount ought to be nullified and a further recount ordered. Such a remedy, if even possible, would be extraordinary and require compelling evidence of improprieties and unfairness. To the contrary, there is no evidence in this case of illegal or fraudulent activity and no such allegations have been made. It appears to me on the available record that all participants were acting in good faith in unfamiliar territory in their efforts to respond to an unusual situation.

“[14] I appreciate that some may find it a vexing question as to why there is a significant, unexplained difference between the two tallies. The legislature has provided a right to review the initial results with a statutory recount provision and that right was exercised in this case. The issue of disputed ballots has already been dealt with. If another recount was permitted, whether the results changed or not, it is reasonably likely that further controversy would ensue, all to the detriment of the municipality as a whole.”

In the Township’s Report to Council dated July 16 2019, the effect of the steps taken following the election and including the litigation is described as follows: “There was much unrest in the community with the election aftermath from Mr. Clarke’s action, another member of the community attempted legal actions and there was general dialogue among the residents through word of mouth and social media.”

The Township also notes that the Applicants have twenty days to appeal the decision but states that there is no reason for the Township to take any action against the ruling. Whether Mr. Clarke intends to appeal is not yet known. Click HERE to read a full copy of CAO/Operations Manager Andrew Sprunt’s Report to Council, which contains more details of the circumstances giving rise to the Court application, as well as the full Judgment.

 

Photo of Renfrew County Courthouse, Pembroke wikipedia.org

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