Stephen Thiele (00:00):

But here's an interesting point. She wasn't denied her right to vote by election officials, per se, was she or was she denied her right to vote by Canada Post because somebody decided to look at the postal code and scrutinize it more than they did the other ballots?

Gavin Tighe (00:20):

Hello. Welcome to the next episode of Beneath the Law, Gavin Tighe here with my good friend and partner, Stephen Thiele. Stephen, how are you tonight?

Stephen Thiele (00:28):

I'm pretty good. How are you doing there, Gavin? You're looking very warm.

Gavin Tighe (00:32):

Yeah, it's frigid here in lovely Toronto. It is our winter we, it's

Stephen Thiele (00:39):

Always frigid in your office. Anyway, we

Gavin Tighe (00:41):

Skipped fall and went straight into the depths of winter. It's like Narnia out there. It's crazy.

Stephen Thiele (00:47):

So I have to tell you, I was way up in Collingwood, which is about two hours north of Toronto, and I panicked because my car needs winter tires. I booked a weekend, my wife and I, to go up to Collingwood and I thought, you know what? I better get those tires changed before I go. And I was able to get it done within a week, and I'm glad I had them on because we arrived to that snow back in Toronto.

Gavin Tighe (01:20):

Yeah, listen, I was driving up north the other day and I saw a car do, it was incredible actually. The traffic was quite heavy, but they were doing full spins down the highway and they didn't hit anybody. It was really, it was surreal. So anyway, nothing like little driving acrobatics as they spun around on the icy 400 highway. Anyways, here we're going to talk about icy, talk about slippery slopes. Stephen, we've had a little bit of personal experience with contested elections. I know you've had more than

Stephen Thiele (01:56):

Me. I love this case, buddy. This one is right in our wheelhouse.

Gavin Tighe (02:02):

Yeah, this is really something else. So there was a federal election. The facts of this case blown, blown my mind. So in April of 2025 was federal election liberal minority government at the moment here in November of 2025, this great angst and toing and froing because 1, 2, 3 seats really matter in terms of who's got control of a minority or a majority parliament. And the liberals won very, very close to majority territory, but still in the minority. But there was a riding in the province of Quebec and Terrebonne Quebec, and the election was won by the liberal candidate by one vote. That's just one vote. Mind boggling. When they say every vote counts, man, does every vote count? They won by one vote.

Stephen Thiele (02:59):

Yeah, you got to get out the vote on election night. That's what the parties will tell you

Gavin Tighe (03:06):

Want to vote. Stephen and I, for our listeners who don't know, argued a case several years ago, many years ago now going back to an election in Toko Center in a federal election where there was a plurality, as I recall, 18 votes.

Stephen Thiele (03:23):

Yeah, it was about

Gavin Tighe (03:24):

20

Stephen Thiele (03:25):

Votes. Yeah.

Gavin Tighe (03:26):

Okay. So a lot more than one if it was

Stephen Thiele (03:29):

One, but still very close where you have over 50 or 60,000 voters. That's a very small Oh

Gavin Tighe (03:35):

Yeah. Victory. We thought this was as close as you're going to get. Apparently not. But the outcome was we ended up challenging that and were successful initially and had the election overturned, and then that case went to the Supreme Court of Canada. And in a four three majority decision we were unsuccessful. One vote decision, one vote, and we had one vote go against us. And it really was a, I think the seminal case frankly, on Canadian election law. And what's the tension between enfranchisement of voters? And I've always found difficulty with that term because if you allow bad votes, you disenfranchise the good vote. I mean, you literally water down the voting pool with bad votes. So I think that you're going to have disenfranchisement by not counting votes that should count or that might count or that shouldn't count, but you dilute the vote, the good votes of everybody else. So it's either you disenfranchise one or you're incrementally disenfranchise everybody else. That's always been my view of that decision. But here, like I say, we were successful in overturning more than one vote, even in the Supreme Court of Canada. We would've won theoretically on the one vote.

Stephen Thiele (05:10):

Yeah, because there were so many mistakes in that election, right? There were widespread mistakes, administrative errors,

Gavin Tighe (05:19):

Irregularities.

Stephen Thiele (05:20):

Well, yes. Well, irregularities. Irregularities were, the goalpost was changed from irregularity to basically fraud. But so I've got to tell you, Gavin, when I first heard about the election result, and I was glued to the TV that night watching the election, and I thought, okay, that's a pretty close vote. It was flipping back and forth all night there in Reone. And when I heard about this one ballot that was mailed to the election office and wasn't counted because the envelope was mismarked, the postal code was wrong, I thought that's great grounds for a contested election.

Gavin Tighe (06:06):

Sure. Because it would've been postmarked, I suppose, pre vote, right? It wasn't that they didn't get their vote on time,

Stephen Thiele (06:14):

They

Gavin Tighe (06:14):

Got it into the post office on time.

Stephen Thiele (06:17):

Right. But when you then read the case, it's that the ballot was never at the election office. It never made it right. So the ballot never got to the box. It got to the post office, but got returned to sender because of the missed mark postal code. So I found that to be quite remarkable, and it's actually quite distinguishable from the ops Js Nevsky case that we argued because we were actually pulling ballots right out of the box on the grounds that they should never have been put into the box.

Gavin Tighe (06:58):

Our argument was that there were

Stephen Thiele (06:59):

Votes that should not have been counted. That should never ever been in there.

Gavin Tighe (07:02):

Right. Not votes that should have been counted.

Stephen Thiele (07:04):

Correct.

Gavin Tighe (07:04):

So this was argued from another perspective, and it's important, I think it was the block that was the contender, if you will. They were missed by a vote, and this one vote could prove that they mailed their mail-in ballot in time. And it was clearly an examination of the ballot clearly showed that it was a vote for the block. There was no doubt about that. But the post office returned it to the sender so that it never got counted in the election and there was no ability to count it after the fact.

Stephen Thiele (07:39):

And so the facts are that the election, so

Gavin Tighe (07:41):

That voter was disenfranchised,

Stephen Thiele (07:43):

That voter was disenfranchised. So you talk about the facts being remarkable. I think one of the facts that was remarkable was that three ballots were found in the trash and were counted in the vote. Who knows how those ballots ended up in the trash. But anyway, the election official had used his own residential postal code, the last three elements to make up these special ballots for mail-in ballots. And there wasn't just the one, there were dozens of them. So the postal code error was an error of elections Canada, correct? Yeah, it was one of the local workers.

Gavin Tighe (08:29):

It wasn't the voter who did it wrong. They did it wrong.

Stephen Thiele (08:32):

They did it wrong. And then because the election office was getting the same rate of return of special ballots, including some that, including ones that had the postal error, the election official didn't say anything, didn't say a word that he had made a mistake.

Gavin Tighe (08:54):

Wow. And did they return and was the evidence that other ballots were returned in addition to this one or that they're the only ones that came forward?

Stephen Thiele (09:02):

I don't think there was any other evidence. It's very difficult. I must say Gavin, the original judgment is in French. I don't read French. And so I had to put it through an AI translator to put it into English. It's unclear whether there were other ballots that got returned, but I don't think there were other ballots that were returned. Well, there would be,

Gavin Tighe (09:26):

Unless the post office was irregular in the way it pardon the use of the word irregular in the way they dealt with the wrong postal code issue.

Stephen Thiele (09:34):

Yeah, it's unclear. What is clear though is the elector who their whose ballot was returned to send her basically admitted that she was taking a chance and it was like throwing a bottle in the ocean with a message in it and hoping that it arrived at its destination. And so the court finds that she was actually not disenfranchised.

Gavin Tighe (10:02):

She didn't know whether or not, I mean, that speaks more volumes of the Canadian public opinion on the reliability of the post office then that speaks about whether a vote should be counted.

Stephen Thiele (10:13):

No. So the way that these kits are made is they each have individualized tracking numbers. And so you can track your ballot once you deposit it in the post office or the mailbox to determine whether it has arrived at its destination. And so the elector never did that. And so in that regard, the judge finds that, well, you could have gone online, there are warnings online that you should be tracking your ballots to see if your envelope arrives in time. So found that this voter was actually not disenfranchised. And so in thinking about it,

Gavin Tighe (10:53):

That doesn't, the right to vote shouldn't be an exercise of due diligence.

Stephen Thiele (11:01):

But think about it. So let's say you show up at the ballot at a polling station and you think that you have the right ID and the polling clerk at the election station sends you out and says, well no, you don't have the right ID and then you never return

Gavin Tighe (11:20):

Again. Well, they didn't have any of those election officials in the case that we argued because they let everybody vote id id. Yeah.

Stephen Thiele (11:31):

Regardless of if it was at the right polling station or not,

Gavin Tighe (11:33):

Doesn't matter which polling station doesn't matter if you're in the right city, just show up here. Have you got a pulse? Let me take your ballot here, vote, vote, vote here, and vote often.

Stephen Thiele (11:47):

So anyway, it's very interesting in terms of reading the judge's conclusions in terms of the disenfranchisement and then actually comparing and saying, well, wait a second, if we allow your one vote, then we're disenfranchising the 60,000 other people who actually got their ballot into the box.

Gavin Tighe (12:09):

That makes no sense is, I mean, that is almost antithetical to what the Jne case stood for because what the argument there was was that if you disallow these votes, then you're disenfranchising everyone else.

Stephen Thiele (12:28):

Is

Gavin Tighe (12:29):

The notion that setting aside a, I'll use the term corrupted, and it's not in a pejorative way, but corrupted election, setting aside a corrupted election is disenfranchising the people who voted in the election. Why? I mean, isn't the right to vote necessarily only meaningful if I get to vote in a fair election? So if the election is unfair, I been disenfranchised by definition because I'm voting in a rigged election

Stephen Thiele (13:05):

Perhaps. But I think what the lessons that were learned in GS Nevsky or OP is a little bit easier to pronounce. Although JS nevsky was easier to spell, it's the seriousness of the mistake. And what the Supreme Court of Canada did in that, I call it a landmark decision, was it basically reached the conclusion that administrative mistakes by election workers that are careless and done without intent are not enough to null an election.

Gavin Tighe (13:53):

And how would you ever prove intent?

Stephen Thiele (13:56):

Well, you could cross examine. I mean, my recollection in the opiates case was that we went pretty hard after the returning officer because there were so many mistakes, right?

Gavin Tighe (14:08):

Yes and no, because I think one of the things you have to think about is this all sounds, it's a great theoretical exercise because unfortunately, the lifespan of a government, and therefore a mandate for anyone who's elected is very brief. I mean, the notion that you would take years to go through a process of cross-examinations and hearings, et cetera. The mandate is over by the time, I mean, there's a need, I think with respect to contested election applications, they need to be brought on now,

Stephen Thiele (14:45):

Right?

Gavin Tighe (14:45):

Expedited

Stephen Thiele (14:46):

Basis. There's no

Gavin Tighe (14:47):

Point. If I wait, for example, if it's a 2025 election and I don't get a hearing until 2028, what difference does it make? The mandate is over. So I mean, I think there's a balancing in all of the tested elections because the shelf life of the vote is short.

Stephen Thiele (15:09):

Right?

Gavin Tighe (15:10):

Percent. So I mean, there's no, realistically in a practical sense, barring, and not only cross-examination, but successful cross-examinations where there's some epiphany of, you have the proverbial Perry Mason moment where it was me, it was Colonel Mustard in the library. And how often does that happen in reality?

Stephen Thiele (15:35):

Look, if there was an admission of intent, you would definitely fall within the parameters of the statute to overturn

Gavin Tighe (15:45):

Theological. Okay, sure. But I mean, talk about pink unicorns, that's not going to get too many election officials who are going to admit that they intentionally inserted fraudulent ballots in the box.

Stephen Thiele (15:59):

No, but look, I think there are some great nuggets in terms of the decision, in terms of outlining that elections are not perfect processes, election officials are not perfect. And I think about it, my son, who is, he's a little bit beyond a teenager now, but he's still in school at university. He worked in that last federal election. And the training that you get, this is the first time he's working in an election. What does he really know about being a poll clerk or a deputy returning officer? Right.

Gavin Tighe (16:47):

So No, no, that's fair. That's fair. And I mean, democracy is a rough business. And I mean, what rings through my mind always with respect to this whole argument is the old saying is that you don't let the perfect be the enemy of the good in the sense that, yeah, I mean, elections are run by people. They're not perfect. Their errors are going to be made. They're kind of rough. Shaw exercises, the people that undertake, I mean, we've long advocated there's got to be a better way to do it, but particularly in the 2025, it's got to be a better way to do it. But the way it's done now, sure, there's all sorts of human error that can occur all the way through it. And as I say, the perfect cannot be the enemy of the good. You got to get elections done. You need governments installed and you need to protect, I think the confidence of the electorate in the elections process, if you continuously can attack the election process is being fraudulent or what have you. I mean, no one will have faith in the elections. And if no one has faith in the elections, nobody has faith in government. I mean, ultimately, society hangs together on that. We all accept the fact that even if we didn't vote for somebody, that they're the duly elected government and that's the government of the day, and that's the social contract that we enter into as members of Canadian

Stephen Thiele (18:03):

Society. And I think Gavin, when you look at it from that perspective, the Supreme Court of Canada in the Js Nevsky case, basically redefining Section 5 24 1 B of the Canada Elections Act to say that the irregularity had to be as serious as fraud or fraudulent conduct or other serious conduct makes sense from that perspective that a contested election should not be something that is common, but it should be rare. Annulling election should be rare.

Gavin Tighe (18:49):

Oh yeah. I mean, it's a big deal. I mean, the point of the matter is annulling, an election is a huge deal on a whole series of levels. Number one is that the cost of redoing the election is enormous. Number two is that elections are taken as what I'll call snapshots of public opinion at a point in time. There's a lot that goes into the timing of elections. We don't have fixed state elections here in Canada. And the timing of elections is a huge decision for a government oftentimes in calling an election or a confidence voter, what have you. So by the time you get back to it, the moment has passed. It's like you can't step in the same river twice, and you can't have the same election twice at a different moment in time, and it's going to be different issues. And the prevailing sentiment of the moment will be different. So

Stephen Thiele (19:47):

Well, and the judge speaks to that issue. The judge speaks to that issue as well, that in a new election that may come four or five months down the road, some voters would've passed away. The political circumstances would've changed. So can't, it's not a redo of election night,

Gavin Tighe (20:09):

Right? Yeah. There are no mulligans in elections. So I think that's a fair comment. You don't have to, it mean, I think that my own view is that the election should strive to some cases to find the perfection, because as I said earlier, my own view of disenfranchises is that you're disenfranchised as much by dilution of bad votes or the failure to count good votes as you are people who are turned away at the polling station. And in my view, this elector who had their ballot rejected despite doing what they were supposed to. I mean, this notion, well, you could have done more. Okay, well fine. I mean, I go to the polling station to vote and they lock the doors on me. Well, you could have broken through the window. I mean, it's like, no, I went to the door. It's not my fault that they locked me out. I went to exercise my constitutional right. And there's one that you can't go to the notwithstanding clause to set aside. That's one of the inalienable rights is my right to vote. And I'm being denied this elector certainly was denied that right to vote, despite the fact that she followed the rules. That's not right.

Stephen Thiele (21:26):

But here's an interesting point. She wasn't denied her right to vote by election officials per se, was she or was she denied her right to vote by Canada Post because somebody decided to look at the postal code and scrutinize it more than they did the other ballots? I don't think it

Gavin Tighe (21:45):

Matters. I mean, I think that the right to vote, I mean, look, Canada Post is a Crown corporation. It's not like I got in the Uber and they took me to the wrong place to vote, and I missed the poll because of that. I mean, that's different. But if they had, this was Canada Post, I have delivered my vote to a crown agency. I mean, it's not the same Crown agency, but it just strikes me that the voter did everything she was supposed to do and was a duly qualified elector. And her right to vote was denied Her vote didn't, literally didn't count.

Stephen Thiele (22:22):

So I don't know at this point in time if this is going to be appealed, but I suppose Gavin, as you put it, there may be some compelling arguments to suggest that indeed this elector was denied her right to vote, and that perhaps her ballot should have been counted if it was indeed postmarked and timely basis.

Gavin Tighe (22:44):

I think that if you read what the majority talks about in GSKi, on a very high level, there's a lot in GSKi. But in GSKi, the Supreme Court says that votes should not be taken out without seriously good reason. And the error of some clerk or whatever is not a good reason to take a vote out. And that's what happened here. This elector's vote got taken out. She, her vote literally didn't count. And what gki, I thought the main message I got from the majority was that it will be a high hurdle to make a vote not count. Apparently, all you got to do is put on the wrong postal court and the vote doesn't count. That to me goes against the ethos of what GSKi was all about.

Stephen Thiele (23:39):

Yeah. So look, it'll be very interesting because GSKi was a number of this. One is one vote, and if they win on that, they win. Right?

Gavin Tighe (23:51):

It's a tie. So yeah. Do you know if they've sought, I mean, they don't need leave, it's an automatic appeal.

Stephen Thiele (23:59):

No, I think if my recollection is it's automatic to the Supreme Court Academy,

Gavin Tighe (24:03):

It's an automatic appeal. They don't need leave, and the court's got to deal with it quickly, and

Stephen Thiele (24:08):

They'll have to deal with it quickly. And

Gavin Tighe (24:12):

Because as they say, the shelf life on government is short.

Stephen Thiele (24:15):

So I'm not sure, but there might be a lot of politics at play, right? Given what's going on up in Ottawa, Ottawa's a very interesting place.

Gavin Tighe (24:25):

Hey, listen, one seat could make a big difference as we see the Game of Thrones being played in real time and the shuffling the seats on the Titanic, as they say, I mean this time it's the shuffling the seats in parliament, jumping over one side to the other. That one seat could go a long way in terms of a liberal majority or minority. The liberals may be one seat away from a majority government, and if they were able to, well, what happened is there would be a bi-election, of course, but if they were able to orchestrate a bi-election in Terrebonne, then that may play right into their hand. That's all they need is that one seat.

Stephen Thiele (25:08):

Well, remember though, it is liberal, right? So they would lose that seat, right? So it's the opposition playing the politics they would lose, right?

Gavin Tighe (25:17):

Right. But I'm sorry. You're quite right. But there are certainly at the moment, cards that are being played that might give the liberals a one seat majority. And it may be, I don't know if the block is inclined to do so, maybe who knows? Maybe this is part of the political horse trading we're seeing going on behind the curtain right now on Parliament Hill with the opposition parties getting as much as they can out of the governing liberals to vote in favor of things like the most recent budget. Who knows what concessions are made? Maybe one of the concessions from the block will be, we won't appeal this if you give us X, Y, Z. I don't know. But I can certainly imagine that that would be a bargaining chip for the block.

Stephen Thiele (26:05):

It could be. But you know what? Nobody in government cabin should be above the law. I got to tell you, and always remember, if

Gavin Tighe (26:11):

No one in government is above the law and everyone is beneath it, Stephen, really great discussion. Great to have your insight on this really interesting case. And to all our listeners, thanks for listening. Please give us a rating, good, bad, indifferent, well, not indifferent. We don't like indifferent. But good or bad, we'd like to hear from you any ideas you have for future episodes. Really pleased to weigh in on topics that are of interest to our listeners, and again, hope to see you next time.