Matthew Wild/Special to Coast Reporter
Vancouver Supreme Court has determined that although the Town of Gibsons breached the law in its handling of the November 2008 election count, it was an error made in good faith that "did not materially affect the result." The finding of Judge Bruce Cohen, published Tuesday, upholds the municipal election results and means residents will not have to return to the polls.
Gibsons Mayor Barry Janyk stated he believes the community can now breathe a collective sigh of relief now that this "vexatious suit" has been dismissed by the court.
"These proceedings cost this community dearly - not just the tens of thousands of dollars - but it also affected staff, council and the Town," said Janyk. "At this critical economic time, we must now work even harder to get this community on a positive track for our future."
Janyk said council is considering its options for collection of costs currently borne by Gibsons taxpayers.
Tuesday's decision concludes a legal challenge brought by four Gibsons residents, candidates Brian Sadler and David Croal and electors Agnes Labonte and Barry Reeves. The hearing opened in early January with the petitioners' lawyer Roy Millen arguing that municipal chief electoral officer James Gordon (at the time corporate officer) and deputy chief electoral officer Wendy Gilbertson (director of parks) failed to follow the Local Government Act (LGA).
"I can't pretend to understand his reasons, but I'm willing to live with Justice Cohen's decision," said Sadler. "Dare I say that this has been worthwhile in cleansing the air and exposing the discontent? It's been a legitimate, judicious examination of procedures. I really feel we did it the right way in not castigating individuals."
The case centred around the differences between the election night preliminary results, announced Nov. 15 and the official figures given four days later. The first count, conducted with observers present, was rejected in favour of a behind-closed-doors recount. It would have meant little had not the recount changed the composition of council: candidate Bob Curry gained 102 of the additional 327 votes and was subsequently elected into fourth place, at the expense of Kenan MacKenzie.
There were no independent witnesses to this recount. Election law, as set out in the LGA, states that candidates must be informed of the "date, time and place when the determination is to be made, and the candidates are entitled to be present."
Town lawyer Raymond Young, had said "human mistakes" were made, but these were inconsequential - the election was fair and none of the candidates had called for a judicial recount. Any changes were made to the tally sheets, used in the addition of votes cast, not the ballots.
Cohen found in favour of Young's position, rejecting the bulk of the allegations against the municipality - specifically suggestions that Gilbertson did calculations out of sight of scrutineers on election night, that she later opened ballot boxes by herself and that she allowed inclusion of ballots previously considered questionable.
Cohen accepted that Gordon did breach the LGA by failing to notify candidates of the recount, but wrote that otherwise "the Town did not violate the provisions of the Act in its conduct of the election as alleged by the petitioners."
Considering this "single breach," Cohen stated: "Clearly, this error on his part compromised the transparency of the election proceedings. However, was this breach so egregious in the circumstances to warrant a declaration that the election was invalid? I think not."
Ultimately, Cohen stated that he remained satisfied both "that the election was conducted in good faith" and "that the irregularity did not materially affect the result of the election."
Elsewhere in his summary Cohen noted that the Municipal Act states: "The election of a member of council shall not be declared invalid by reason only of an irregularity or failure to comply with a provision of this Act if it appears to the court that the election was conducted in good faith and in accordance with the principles laid down by this act, and that the irregularity or failure to comply did not materially affect the result."
And he concluded that the petitioners "rather than speculate, as they have, on alleged discrepancies or the reason for changes in the totals for the candidates between the preliminary and official election results, should have applied for a judicial recount."
Millen had argued that a recount would prove nothing once the ballots had been compromised, but Cohen observed, "there is no evidence to support their charges about misplaced ballots or tally sheets."
Nevertheless, Sadler said after considering the finding, he had no regrets, other than having possibly, "failed all those people that kept pushing me to take a stand." He felt a court case made more sense than a judicial recount as "it wasn't so much the counting of the votes that was the issue, but where did the new votes come from," even though he is left facing a $20,500 legal bill.
"The good news is that the justice has ruled we have a duly elected government and I will live by that decree," added Sadler." The current council is responsible for their actions so that cloud has been removed. I hope that this will encourage people to take municipal government seriously and pay attention to the system and how things work."
- with files from Ian Jacques
