OTTAWA—The Supreme Court of Canada in a sharply split ruling says voting irregularities in the 2011 federal election in the riding of Etobicoke Centre were not serious enough to eject Conservative MP Ted Opitz from his seat.

Opitz, who won the riding by just 26 votes more than Liberal incumbent Borys Wrzesnewskyj, will not have to contest his seat again in a byelection as a result.

The 4-3 decision released Thursday is the first time the high court has pronounced on the modern version of Canada’s election act, and sets a high bar for overturning ballot results.

The country’s top court pointed to the wording of Canada’s elections law, and the Charter guarantee of the right to vote. It said the entitlement to cast a ballot cannot be lightly tossed out.

The current law and the elections system isn’t designed for perfection or certainty, and the courts cannot demand it, the four-judge majority concluded.

They said parliament included the word “irregularities” in the same phrase that prohibits fraud and corrupt practices, and lawmakers “must have” meant to target only “mistakes and administrative errors that are serious and capable of undermining the integrity of the electoral process.”

“Given the complexity of administering a federal election, the tens of thousands of election workers involved, many of whom have no on-the-job experience, and the short time frame for hiring and training them, it is inevitable that administrative mistakes will be made. If elections can be easily annulled on the basis of administrative errors, public confidence in the finality and legitimacy of election results will be eroded. Only irregularities that affect the result of the election and thereby undermine the integrity of the electoral process are grounds for overturning an election.”

A spokesperson for Elections Canada Chief Electoral Officer Marc Mayrand is he is reviewing the decision. But Mayrand has already decided to strengthen voting procedures and training of election volunteers in advance of three federal by-elections scheduled for Nov. 26 in the ridings of Durham, Calgary Centre and Victoria, the spokesperson noted.

The ruling Thursday had nothing to do with unrelated allegations still before a federal court that robocalls were used by the Conservative Party in several ridings as part of a campaign of voter suppression efforts in the 2011 campaign. The party denies those claims.

Rather, it dealt with an individual challenge launched by Wrzesnewskyj.

He initially persuaded an Ontario Superior Court judge that problems with the registration of, or in some cases the vouching for, 79 electors warranted voiding the result.

But four of the seven judges of the high court concluded at least 59 of the 79 votes that Justice Thomas Lederer disqualified should be restored, even though in some cases there were missing registration certificates.

Writing for the majority which included Justices Rosalie Abella and Marie Deschamps, Justices Marshall Rothstein and Michael Moldaver wrote there was no reason to believe that the 20 remaining voters were not entitled to vote.

Because the remaining 20 votes were less than the “magic number” of Opitz’s election night 26-vote margin of victory, the court allows the May 2, 2011 outcome to stand.

Opitz welcomed the ruling and said the court demonstrated that “a fair election took place,” that his win was valid, and identified the importance of “enfranchising the electors of Etobicoke Centre.”

The ruling upholds the “democratic decision” of 52,000 people in the riding who cast ballots and “followed the rules,” Opitz said.

Harper, who accompanied Opitz as they left the Commons following a vote, said he would consider improvements to election rules.

“But in this case, the important thing is it was the voters who made the decision and that’s the way a democracy is supposed to work,” Harper told reporters.

It is only the third time in its history the top court has weighed in on a federal riding outcome, and the first to examine how Elections Canada conducts actual voting procedures.

In Canada, persons are entitled to vote if they are Canadian citizens aged 18 or over. At the polling station, voters must show identification, proof of residence in the riding, or have another eligible riding voter vouch for them.

The court said procedural safeguards include the list of electors, and various voting day registration procedures, identification and vouching requirements that may be followed if a voter shows up at a poll and is not on the electors list.

But a local poll clerk or deputy returning officer’s “failure to follow a procedural safeguard” should not necessarily invalidate a person’s vote, the court ruled.

“Only votes cast by persons not entitled to vote are invalid.”

The court said that lightly dismissing votes cast would disenfranchise voters, and run the risk of encouraging more legal challenges in tightly contested races.

The law “should not be taken by losing candidates as an invitation to examine the election records in search of technical administrative errors, in the hopes of getting a second chance.”

Wrzesnewskyj, the former MP, vowed to run again in the next general election expected in 2015.

He brushed aside a suggestion that he had suffered a huge loss, saying “democracy won” because of the electoral issues he brought forward.

“I believe we’ve all won because this has shown a light” on problems in voting practices in the last election, he told reporters. “The law is outdated, it needs updating,” Wrzesnewskyj said.

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Wrzesnewskyj had not brought specific allegation before the Supreme Court of fraud or wrongdoing in Etobicoke Centre, but he repeated to the media Thursday that he felt the vote in his riding was distorted by questionable activities by his opponent’s supporters. The Conservatives have vigorously denied these allegations.

Rather, Wrzesnewskyj had argued in court that errors by Elections Canada polling officials in the GTA riding led to illegal ballots being cast, and that those irregularities warranted another vote.

Wrzesnewskyj’s lawyer Gavin Tighe said the high court, stuck with an outdated elections law that hasn’t kept pace with modern campaign tactics, has made it “difficult” for any candidate to challenge contested ballots without outright proof of fraud or corruption.

He said Canadians should really question whether they are willing to accept imperfection and uncertainty in their elections law and election results.

“If the process is imperfect, it taints the legitimacy of any government,” said Tighe.

The Supreme Court of Canada said any individual who contests an election result bears the burden of proving “on a balance of probabilities” that there was a serious error or “irregularity” that affected the result of an election, and that someone who voted was not entitled to vote.

After-the-fact evidence of entitlement is admissible, the court said.

The court said “a more realistic test may be developed in the future” for when to overturn an election outcome, but for now, the “magic number test” should be used.

Chief Justice Beverly McLachlin, along with Morris Fish and Louis LeBel sharply disagreed and would have annulled the election.

McLachlin wrote that entitlement to vote should be established before a voter receives and casts a ballot, and not afterwards, otherwise “the only way to be confident in the accuracy of an election outcome is to investigate the identity, residence, and qualification of voters after the election.”

“Such an approach would be unfair,” she said.

Liberal interim leader Bob Rae said he accepted the decision, but pointed to the split among the judges, saying it showed they are troubled by what occurred.

He said though the Wrzesnewskyj case didn’t directly deal with wider problems, he is believes “there still exists a disturbing trend of irregularities and reports of election fraud stemming from the 2011 general election.”

“We cannot forget that Canadians across the country were deprived of their right to vote through a coordinated attack on our democracy.”

“There is still much work to be done and many questions to be answered in order to restore our confidence in Canada’s electoral institutions.”

NDP MP Craig Scott (Toronto–Danforth) also said Thursday’s decision leaves the important question of “dirty tricks” in the 2011 election wide open.

“The issue in this case had nothing to do with some of the big election concerns that we’ve had in the last year or so,” he said.

In particular, the case did not touch on allegations of “robocalls,” the automated telephone calls that allegedly were used to mislead some voters before they went to the polls. “It’s questions of dirty tricks and fraud in elections in Canada that still need to be resolved,” Scott told reporters. “It’s on the agenda of elections Canada and it’s very much on the NDP’s agenda.”