Yukon Liberal Party candidate Pauline Frost speaks with media following a judicial recount of the riding of Vuntut Gwitchin's results of the Yukon election, in Whitehorse, on April 19, 2021.Mark Kelly/The Canadian Press
A judge in the Supreme Court of Yukon has reserved her decision over the validity of a ballot cast in the territory’s last election by a jailed voter in the riding where the former health minister lost her seat in a tie vote.
Chief Justice Suzanne Duncan says her decision will be released late next month or early August, but she will prioritize making the ruling as soon as possible.
Liberal incumbent Pauline Frost tied in the riding of Vuntut Gwitchin with New Democrat Annie Blake, who was declared the winner after the drawing of lots, spurring Frost’s court challenge alleging the jailed man was ineligible to vote there.
Mark Wallace, the lawyer for chief electoral officer Maxwell Harvey, told the court on Thursday that the process to authorize a special ballot in April’s election for the man imprisoned in Whitehorse did not breach the territory’s Election Act.
He argued the act is intended to ensure that people are not deprived of the right to vote, and adopting the petitioner’s interpretation of the rules around identification and residency would disenfranchise homeless, incarcerated and transient voters.
Frost’s lawyer, James Tucker, told the court the man was allowed to cast a special ballot in what he identified as his home riding of Vuntut Gwitchin without the required documentation and residency.
Wallace said the man used approved identification in order to cast his ballot, including a declaration that an electoral officer would not be permitted to reject.
The intent of the act is to ensure that alternative forms of identification can be acceptable for people who are qualified to vote, he said.
Case law has established that mistakes happen during elections and “to disenfranchise entitled voters based on administrative mistakes would undermine the public’s confidence in the electoral system,” Wallace added.
In a reply Thursday, Tucker said the man’s declaration didn’t address his residency or satisfy requirements under the Election Act.
However, Wallace disputed Tucker’s claim that the chief electoral officer did not review documentation relevant to the man’s special ballot after receiving a letter from legal counsel for the Liberal party outlining concerns over his eligibility.
Harvey did do a preliminary review, Wallace told the court, while disallowing the man’s ballot ahead of the election would itself have breached the Election Act.
Reading from the letter, Wallace also said the Liberals had been informed by “persons with direct information” that the jailed man had been banished from Old Crow several decades ago and was still barred from entering the community.
That claim turned out to be incorrect, said Wallace, arguing there is no evidence in the case that would meet the legal standard to determine the election was conducted in bad faith as Tucker had argued.
The results of the election left Premier Sandy Silver’s Liberals tied with the Yukon Party at eight seats each, but Silver struck an agreement with the NDP allowing him to form a minority government with support from the party’s three members.
Luke Faught, another lawyer for Frost, argued Wednesday that the jailed voter had demonstrated a pattern of choosing to stay in Whitehorse when he’s had several opportunities in recent years to return to his home riding in northwest Yukon.
Wallace disputed the claim that the man did not intend to return home, saying those opportunities amounted to a total of seven days during which he was free from prison and court-ordered conditions that prevented him from returning. The man has never established a residence outside his family home in Old Crow, he said.
This story was produced with the financial assistance of the Facebook and Canadian Press News Fellowship.
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