Matthew Wild/Special to Coast Reporter/
A judge is to decide if the Town of Gibsons council was elected lawfully.
Vancouver Supreme Court judge Bruce Cohen will produce a written verdict - promptly, he said, although no date was given -that will determine whether electors will have to return to the polls.
It follows a convoluted and controversial court case instigated by a group of electors who believe last November's municipal election was so flawed by legal errors that the only reasonable outcome would be to start over.
At the centre of their argument is the clear disparity between the preliminary election results, announced hours after polls closed on Nov. 15, and an official announcement four days later with 327 additional votes - of which 102, very nearly one in three, went to candidate Bob Curry, propelling him in into office. There were no independent witnesses to this count, which breaches election law.
Lawyer Roy Millen stated that municipal chief electoral officer James Gordon (then corporate officer) and deputy chief electoral officer Wendy Gilbertson (director of parks) repeatedly ignored the Local Government Act (LGA). Most serious was Gilbertson's recounting of the ballots by herself without inviting observers.
While there was no accusation of Gilbertson tampering with the vote, the fact she had been observed making errors on the original count meant no one could verify the official figures, said Millen. "Observers could say, 'Yes, it seems strange, but that's what happened.' But only Ms. Gilbertson can say what happened," Millen said as he made his case in court on Friday, Jan. 9.
Millen said Gilbertson called candidate Kenan MacKenzie on Tuesday, Nov. 18, to tell him she had spotted a mistake in the preliminary results - apparently before Gordon knew there had been a recount. Judge Cohen later suggested that Gilbertson "seems to have gone off on a venture of her own to do this in the absence of witnesses. I don't see anything in the LGA to cover what she did."
Summing up, Millen said: "The Town's conduct was at times sloppy and at other times misguided. They showed a cavalier attitude to what should have been a serious and carefully controlled affair."
Millen added the fact that the election results changed after a breach of election law - "recounting the ballot in the absence of witnesses" - eroded public confidence in the results.
However, lawyer Raymond Young, representing the municipality, told the court that while "human mistakes" had been made, these were inconsequential -and that ultimately, the result of the election was fair and accurate.
He made a series of complex legal arguments that focused on the text of the LGA rather than on the actions of the municipal employees -prompting judge Cohen to state concerns that "there should be evidence from your side that shows what procedures were followed."
Young denied that the election results changed after the breaches to the LGA, because the election night preliminary results were "an act to satisfy the curiosity" of those who could not wait for the subsequent official declaration of results. As there was only ever one such announcement, nothing changed.
He also stated that the tally sheets at the heart of the argument were not covered by the LGA, which refers to ballots and ballot accounts, although conceding that the tally sheets appeared central to Gordon's and Gilbertson's actions.
But above all, Young stressed that no one questioned the integrity of the electoral officers involved, and that "the failure to invite candidates to proceedings did not materially affect the results." He said the judge must consider if such a breach of the LGA was serious enough to put "the parties and the Town to the expense of running an election again."
And that is something that a party of Gibsons residents, who travelled out to observe last Friday's court hearing, certainly don't want to see. Speaking for the group afterwards, Suzanne Seger said, "I feel things have been taken out of context. Democracy is really important, and the rules are made to be followed, but if every time someone did not follow a rule exactly there was a petition to the court, it would be damaging to our democracy."
In an affidavit, Gibsons resident Jo-Anne McNevin, a retired political consultant who reckoned to have managed "approximately 60 political campaigns in federal and provincial elections across Canada," expressed amazement at the Town's handling of events.
"In all my years of electoral experience, I have never seen the types of problems and breaches of standard procedure that occurred in our recent civic election," she stated. Neither had she come across such "disparity between preliminary and official results.
"These discrepancies astonish me. I have never seen such a drastic change in the number of votes in a single recipient, given the small number of electors in Gibsons. I have seen other elections in which a recount resulted in a swing of 100 votes, but that was in large federal districts where 65,000 or more votes were cast. In my experience, a shift of over 100 votes when less than 1,500 people voted is unheard of. In my view, once the ballots were compromised by being handled in the absence of independent witnesses, a judicial recount could not help to rectify the problem."
The court heard that Curry's increase of votes was statistically unlikely - if ballots had been missed on polling night, it would be expected that all candidates would have gained, with those in the lead likely to gain more than Curry. However, Judge Cohen seemed unimpressed with statistical arguments.
