Former Oshawa city councillor Robert Lutczyk is planning a return to the ballot in this fall’s municipal election from his cell at the Central East Correctional Centre in Lindsay, Ontario, where he is currently awaiting trial for allegedly kidnapping the city solicitor nearly two years ago.

“He did attempt to file (nomination papers for a council seat) by an agent on Wednesday and at that time the paperwork was incomplete so we did not accept the submission of the nomination paper,” Jason McWilliam, the manager of records information at the City of Oshawa told the Star Friday.

Lutczyk is facing accusations he kidnapped city solicitor David Potts at gunpoint after a council meeting in the fall of 2012. The alleged kidnapping prompted a standoff of more than 24 hours, with police at an industrial building where, they allege, Lutczyk had explosives. Potts escaped unharmed; Lutczyk surrendered.

The former councillor, who most recently served from 2006 to 2010, has been incarcerated since October 2012. He was denied bail on three separate occasions since then.

As long as Lutczyk is eligible to vote, he can be a candidate, said McWilliam, but as of Friday the City of Oshawa hadn’t received enough documentation to accept the nomination paper. They still need photo identification to confirm Lutczyk is properly qualified to vote and a signed letter from the candidate appointing an individual to act as an agent on his behalf.

McWilliam said he did not know who acted as Lutczyk’s agent, a rare occurrence in Oshawa.

“I would suggest in 95 or 99 per cent of cases here at the City of Oshawa candidates file on their own behalf but it’s certainly permissible under the act to file by an agent.”

If Lutczyk provides sufficient paperwork, even while in prison, the city will accept the nomination paper and either certify or reject that paper on nomination day, which is Sept. 12, McWilliam said.

If Lutczyk’s paperwork is complete, it will likely be certified.

“Under our policies and procedures, everything that we’ve requested of every candidate is what we require to determine whether an individual is qualified to run or not,”McWilliam said.

McWilliam has not received any direct complaints about Lutczyk’s attempted nomination since Wednesday and is not aware of any previous instance where the City of Oshawa has refused a candidate, provided they have provided all the required information.

John Mascarin, a municipal lawyer at Aird and Berlis, said the Municipal Elections Act and the Municipal Act allow Lutczyk to run.

Under the Municipal Elections Act, a person is eligible to vote if he or she resides in the municipality, is a Canadian citizen and is at least 18 years old. Corporations, a person acting as an executor or trustee and people serving sentences in jail are prohibited from voting under the act.

Any eligible voter can run for office as long as they reside in the municipality, own a property in the area where they run or are the spouse of a resident or property owner, according to the Municipal Act.

“Right now he’s not serving a sentence of imprisonment, so therefore it looks like he does meet the eligibility or the qualifications to be an elector,” Mascarin said. “Technically he’s allowed to run, he’s allowed to be elected, and he might even be entitled to hold office, which is really bizarre. I don’t think that was the intent (of the legislation.)”

If Lutczyk is voted in, his seat can be declared vacant if he doesn’t swear an oath of office by a specific date, or if he’s absent from meetings of council for three successive months without being authorized by a resolution of council.

At that time, Mascarin said, council can then either appoint something or run a byelection.

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“If they run a byelection, his trial hasn’t come up and he hasn’t been sentenced then I think he’s eligible to be elected back in on a byelection,” Mascarin said.

Lutczyk’s trial is scheduled for January.

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