Yarmouth Justice Centre.Tina Comeau photo
By Tina Comeau
Nearly a year after the votes were counted, and nearly as long since one of the candidates raised concerns that the results were questionable, a Supreme Court judge has voided the October 2012 election of the African Nova Scotia member of the Tri-County Regional School Board.
Supreme Court Justice Pierre Muise made his ruling in Yarmouth Supreme Court on Tuesday, Oct. 15, much to the delight of the applicant Michael Alden Fells, who hugged his wife following the judge’s ruling.
Fells, who had been the incumbent going into the election, had lost the seat to challenger Darlene Lawrence, who had won the election after receiving 233 more votes than Fells.
In October 2012, the majority of polling areas voting for the seat saw people casting their votes electronically or by telephone.
But because the votes had, in some areas, more than tripled the number of votes cast in previous elections, Fells raised the question as to whether people had mistakenly voted for this seat when they were not qualified to do so.
Fells' lawyer Brent Silver and Silver’s law firm sent out letters to people who had voted in the seat, asking them if they were qualified to have voted for the African Nova Scotian seat. People were not asked who they had voted for.
As a result, 247 people signed affidavits saying they had voted for the seat in error as they were not a qualified voter. Another 60 or so people verbally indicated to the law firm they had mistakenly voted for the seat.
Added silver, “there were 386 people who wouldn’t respond in anyway to our letter.”
Still, he said, there were enough invalid votes that it threw the results of the election into question.
He said people admitted that they were confused when it came to voting electronically for the school board seats as they were presented with different options. Had the election involved polling stations, people would have been asked in person prior to casting their ballot if they were a qualified voter for the Africian Nova Scotian seat. While people were asked online if they were a qualified voter as they were presented with options to vote, Silver said the process wasn’t sufficient to avoid error or confusion.
And some of the bylaws that existed for some of the participating municipalities left no recourse for how a recount would take place, he said.
There was no one present in the courtroom to challenge Fells’ application, nor had the court received any notification that anyone was contesting the application or the evidence.
Justice Muise’s decision to void the election was a lengthy one. In his remarks he noted that when it comes to invalid votes in an election, the law says it has to be presumed that these votes were cast for Lawrence as the successful candidate in the election. When those votes are expunged, he said, it actually left more votes for Fells.
The judge said the number of invalid votes left the winner of the election in doubt, therefore he had to void the election.
Asked what happens next, now that the election has been voided, the Department of Education deferred the question to the school board. On Wednesday morning, the day after the court decision, Tri-County Regional School Board Lisa Doucet said, "We are still waiting for official notice regarding the court decision. Without further information we are not in a position at this time to comment on the process."