Canada: Marijuana Party candidate files case to Supreme Court

ByRob O’Flanagan

GUELPH – A Guelph candidate in the last federal election will contest the local result to the country’s highest court.

Kornelis (Case) Klevering, who collected 171 votes as the Marijuana Party candidate in the May 2011, filed an appeal to the Supreme Court of Canada last week. The appeal came days after the Federal Court of Canada rejected Klevering’s contention that the election results in Guelph should be annulled on the grounds that fraudulent and illegal practices misdirected local voters.

In her ruling, prothonotary Martha Milczynski of the federal court found Klevering’s case lacking. Milczynski acknowledged that "Guelph may be singled out as one of, if not the most egregious example of the voter suppression efforts" that marred the election. Voters were misdirected through automated telephone calls, or robocalls, fraudulently informing them of the relocation of polling stations.

But she ruled that Klevering was unable to prove through solid evidence that voter suppression "had an impact on the election results in the riding of Guelph or on the integrity of the election such that there is even the slightest chance that the results would be annulled and the electorate in Guelph put through a byelection."

Milczynski also ruled that Klevering’s application was filed late – well beyond the 30-day limit after election results were officially published in the Canada Gazette.

Guelph MP Frank Valeriote, who won the 2011 election by just over 6,200 votes, opposed Klevering’s application to the federal court, and said Monday he would opposed the Supreme Court appeal as well.

Klevering said in an interview Monday that he is no stranger to Supreme Court proceedings, having filed five previous appeals to the high court related to "constitutional issues with respect to cannabis marijuana."

His latest filing includes a sworn affidavit related to personal finances which should ensure that he can appeal the case without personal expense. The Supreme Court received his filing last Friday. He believes contesting the case on charter grounds is the best way to ensure the rights of voters are upheld.

The best result, he added, would be for the Supreme Court to determine if the election in Guelph was free and fair according to the Charter of Rights and Freedoms and if the integrity of the election was compromised enough to call a byelection. That would ensure that all voters in Guelph have the same opportunity to cast a ballet, as opposed to being unfairly redirected to a fraudulent polling station.

"It’s a constitutional question that has to be dealt with at the Supreme Court, not the federal court," Klevering said, adding that the matter must be decided by a judge with more authority than Milczynski. A prothonotary is a principle clerk in a court of law, not a judge.

"She said there was no evidence, which is ridiculous because there is evidence," Klevering said, explaining that the Marc Mayrand, Canada’s chief electoral officer ruled there were thousands of robo-calls in Guelph alone. Klevering added that Justice Richard Mosley had previously ruled that fraud had occurred in six ridings during the election, particularly in Guelph. That is evidence enough of wrongdoing, he said.

"For me it’s more a charter violation," he said. "Section 3 of the charter says all elections are supposed to be free and fair. That certainly didn’t happen for everybody in Guelph. Based on that, I am asking the court to rule if the integrity had been compromised to the point where the election was no longer free and fair."

Valeriote said Klevering has, like all Canadians, "the right to be heard, provided the circumstances are such that an argument is warranted." In this case, Valeriote said, the federal court decision was clear.

"I’m satisfied with the result, but more importantly the court held that the fraud that was the centre of Case’s argument was fraud that was perpetrated by someone who had access to the Conservative database, and that it did strike at the integrity of the electoral process in attempted to dissuade voters from voting," Valeriote added.

Quoting Mosley’s findings, Milczynski said evidence of fraud was "mostly clearly demonstrated in the Guelph investigation," and that it was clear that a database maintained by the Conservative Party of Canada was accessed by unknown person or persons in placing the fraudulent calls. There is no evidence the access was approved or condoned by the party.

While in other jurisdictions where robo-calls took place the outcome may have been influenced by those fraudulent calls, Valeriote added there was no evidence of that being the case in Guelph, where the margin of victory was wide.

"So I really have to challenge now why Case would continue with this given that the judge said it did not affect the ultimate result," Valeriote said. "Because of the result, it’s clear that the voters of Guelph spoke quite loudly and clearly on election day, notwithstanding the voter fraud on election day."

Valeriote said there will be a financial cost to him in challenging the Supreme Court appeal. His lawyer will represent him at the proceedings when they are held. Klevering said a date for a hearing has not been decided.

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