Yarmouth Justice Centre TINA COMEAU PHOTO
By Tina Comeau
Although this wasn’t the hearing yet to determine the merits of the application itself, lawyers spent hours in Supreme Court in Yarmouth on Nov. 22 debating the process and other aspects linked to an application that is aimed at seeing the election of a school board seat voided.
The application deals with the African Nova Scotian seat on the Tri-County Regional School Board and has been filed by defeated candidate Michael Alden Fells who lost the seat to Darlene Lawrence.
Fells’ lawyer, Brent Silver, told the court they believe that people who were not qualified to vote for the African Nova Scotian seat voted anyway, either because they were confused by the electronic and telephone voting process, or because once they got onto this computer screen they could only get out of it by casting a vote.
Silver said this is what they’ve been told anecdotally by some of the people who voted, although he said he wants to test the system out himself to see if it actually worked the way that some people have described.
He told the court that some municipal units that had seen no votes for this seat in the last election saw more than a hundred this time. Another municipal unit saw the number of votes tripled from the last election.
Because entitled voters in all municipal units covered by the school board can vote for this seat, there were several lawyers representing all of the municipal units in court. However, the six municipal units who only conducted paper ballot votes were released as parties to the application.
Fells’ lawyer had requested a list of all the people that voted for the African Nova Scotian seat. The list does not reveal how they voted, only that they did the vote. Silver said they had contacted around 100 voters and that 70 of them had said they would willingly sign an affidavit pertaining to the election.
In the interest of saving his client money, however, Silver proposed a process where all of the people who voted would receive a draft affidavit they could sign indicating if they were supposed to have voted for the seat. A subpoena would also be included – as opposed to serving it at a later time – in case the other lawyers wanted to cross examine the people who had filled out the application. If they didn’t need to be cross-examined then the subpoena would be dismissed.
But Lawrence, the candidate who won the election, had concerns about that process. Lawrence suggested there were a variety of reasons why more people may have voted in this election: the convenience of the electronic vote, the choice on the ballot and the fact that people who may not have wanted to publicly declare themselves as African Nova Scotian at polling stations in past elections were able to cast their vote this time without having to do that.
“I just think we need to be careful with what questions are being asked and how they are being asked and whether people are being intimidated,” she said, saying people should not be getting affidavits and subpoenas simply as part of a fishing expedition.
Lawrence said she wasn't saying that people who were not eligible to vote should have, and if people made an honest mistake and they are willing to tell the court than that is fine she said. But she said people shouldn’t be harassed into proving if they are African Nova Scotia or not.
But Silver said if it boils down to whether people were qualified to vote or not, you have to be able to challenge this.
Justice Pierre Muise suggested a different process that would involve contacting all of the voters but only the ones who willingly wanted to cooperate would receive an affidavit, as opposed to everyone receiving one. The sides said this was agreeable.
Moving forward there will be more court documents filed to meet various deadlines. The matter will be back in court on in Digby on March 6.