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Lawyers debate jailhouse vote that may have won Yukon election

Court case will decide validity of ballot cast from jail that tipped balance in riding
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, Monday, April 19, 2021. THE CANADIAN PRESS/Mark Kelly

Lawyers are squaring off this week over the validity of a ballot cast in Yukon’s last election by an incarcerated voter in a riding where the Liberal incumbent lost her seat in a tie vote.

James Tucker, a lawyer for former Liberal cabinet minister Pauline Frost, told the Supreme Court of Yukon on Wednesday that “carelessness” in authorizing the voter shows April’s election was not held in good faith.

Frost tied in the riding of Vuntut Gwitchin with New Democrat Annie Blake, who was declared the winner after the drawing of lots, which set off the court challenge by Frost alleging two people who cast ballots were ineligible to vote in the riding.

The man imprisoned in Whitehorse had indicated to an election officer that he wanted to vote in his home riding of Vuntut Gwitchin, Tucker said, and he was allowed to cast a special ballot without the required identification or residency.

Failure to follow the Elections Act in that authorization process produced results that did not reflect the will of legitimate voters in the riding, Tucker argued.

Chief electoral officer Maxwell Harvey did not follow up or review documentation relevant to the man’s application for a special ballot, he alleged.

Tucker’s colleague, Luke Faught, told the court the man has 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. The base definition of a residence is a person’s true, fixed, permanent home, to which they intend to return after any absence, Faught said.

He said the voter did not have the intention of returning to Vuntut Gwitchin on the day of his vote.

Blake’s lawyer, Shaunagh Stikeman, disputed that argument, saying the man has spent most of the last 20 years incarcerated outside his home community of Old Crow and he has long stated, including in court, that he intends to go back there.

His family lives there and any doubt about his true home or intention to return when he’s free to do so is answered by acknowledging his Indigenous identity and the special connection Indigenous people have with their territories, Stikeman added.

The man’s “connection … to the land in and around Old Crow, is proof in itself of his intention to return and the ongoing existence of his true home,” she said. The man had no other residence before being incarcerated, had never established residency elsewhere, and his ballot was cast legitimately, she argued.

The election results left Premier Sandy Silver’s Liberals tied with the Yukon Party at eight seats each, but Silver worked out an agreement with the NDP that allowed him to form a minority government with support from the party’s three members.

—The Canadian Press

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