Decision 2009 Sac 01 En

TRANSLATED FROM FRENCH (ORIGINAL) TO ENGLISH – JAN 30.2009 Case no. 2009-SAC-01

Thursday, January 22, 2009 STUDENT ARBITRATION COMMITTEE

PAR T I E S :

MYRIAM BÉRUBÉ Appellant -AND-

BOARD OF ADMINISTRATION (REPRESENTED BY DEAN HALDENBY) ELECTIONS COMMITTEE Respondents

DECISION

RELEVANT FACTS The following facts are recognized by both parties. On January 4, 2009, the Elections Office – formed by Lewis-Havard, Garzouzi and Naim – decides to use an electronic ballot instead of a paper ballot. On January 11, 2009, the Board of Administration voted – by a large majority – to ratify the decision of the Elections Office. In this particular case, the electronic ballot would be implemented through a web-based voting application. Each member of the Federation would receive by e-mail a username allowing them to login on a secured website where they can proceed to vote. Once their vote is recorded, their username would be automatically disabled, preventing the same person from voting twice.

TRANSLATED FROM FRENCH (ORIGINAL) TO ENGLISH – JAN 30.2009 QUESTIONS IN ISSUE The committee must enter three constitutional questions. We are formulating them as follows in order to facilitate understanding of the motivations: 1. Does the Constitution implicitly or explicitly states that the votes must be cast through a conventional paper ballot? 2. Does the electronic voting method violate article 4.10.2 of the Constitution by allowing the transfer of votes? 3. Can the audit process qualify as a recount in the sense of article 4.12 and the following?

ANALYSIS Question 1: Does the constitution implicitly or explicitly states that the votes must be cast through a conventional paper ballot? Section 4.10 of the Constitution of the Federation states the method of voting. In this particular case, no part of this section specifies which type of ballot should be used. Here are the relevant articles: 4.10 Method of Voting 4.10.1 For any election of executive members or directors of the Board of Administration, the Board of Administration determines beforehand the hours of voting. Voting shall be permitted during these hours only. 4.10.2 During an election, each member of the Federation may vote once for each of the positions of President, Vice President Communications, Vice President Finance, Vice President Student Affairs, Vice President Social, and Vice President of University Affairs. 4.10.3 During an election, each member of the Federation may vote for as many faculty director candidates as there are seats being contested for the faculty in which that member is enrolled.

A well-established principle in law states that the burden of the proof lies with the party challenging the constitutionality of a decision. In this particular case, the plaintiff has not demonstrated this claim. The committee must base his decisions on the general principles of Canadian law, as stated in article 8.4 of the Constitution of the Federation. 8.4 Criteria to be Respected in Decision Making The members of Student Arbitration Committee must be at least subject, among others, to the following criteria in rendering their decisions:

TRANSLATED FROM FRENCH (ORIGINAL) TO ENGLISH – JAN 30.2009 8.4.1 In order to render a valid juridical decision, the members of Student Arbitration Committee must ensure that the following principles have been respected: (a) The parties have agreed to submit to the decision of the Student Arbitration Committee. (b) The nomination of the arbitrators conforms to the rules of the Federation; (c) The impartiality of the arbitrators is not put in doubt by their interest in the case before them; (d) The processing of the case before Student Arbitration Committee respects the established rules of practice (Section 8.5); (e) The parties have had the opportunity to be heard in their case; (f) The decision taken is motivated by laws, rules, or principles of equity recognized in Canada; and (g) The necessary means are taken to render the decision effective.

Since the plaintiff has not demonstrated the claim, the committee's answer to question 1 is negative. Nothing in the constitution states that the votes must be cast through a specific type of ballot.

Question 2: Does the electronic voting method violate article 4.10.2 of the Constitution by allowing the transfer of votes? The plaintiff is challenging the voting method. According to her, this process would allow a student to vote more than once, which contradicts article 4.10.2 of the Constitution. On page 2 of her brief presented to the committee, the plaintiff claims that this method would allow the transfer of votes. Here is how she describes this problem: Article 4.10.2 states that « During an election, each member of the Federation may vote once [...] ». Even though each student would receive only one e-mail with a PIN under the proposed system, this does not prevent a student from voting twice. Indeed, a student only has to forward the e-mail along with her student number to someone else, allowing this other person to vote twice.

The defendants claim that articles 4.10.2 and 4.10.3 do not intend to prohibit proxy voting, but rather state the individual member's voting rights and specify the number of votes expressed for each position. The defendants write in their brief: It is evident, upon reading both articles together, that the intent of the Board of Administration was not to limit proxy voting, but rather to explain that only one vote may be expressed by position, since only one candidate is elected for each executive position.

TRANSLATED FROM FRENCH (ORIGINAL) TO ENGLISH – JAN 30.2009 Here are the relevant articles of the Constitution of the Federation, in French and English: 4.10.2 Lors d’une élection, chaque membre de la Fédération ne pourra voter qu’une seule fois pour le poste de présidente, de vice-présidente aux communications, de vice-présidente aux finances, de vice-présidente aux affaires étudiantes, de vice-présidente aux activités sociales et de vice-présidente aux affaires universitaires. 4.10.3 Lors d’une élection, chaque membre de la Fédération pourra voter pour autant de candidates aux postes de directrices de faculté qu’il y a de sièges alloués dans la faculté dans laquelle le membre est inscrit.

4.10.2 During an election, each member of the Federation may vote once for each of the positions of President, Vice President Communications, Vice President Finance, Vice President Student Affairs, Vice President Social, and Vice President of University Affairs. 4.10.3 During an election, each member of the Federation may vote for as many faculty director candidates as there are seats being contested for the faculty in which that member is enrolled.

The committee must therefore interpret the text of the articles to determine if they prohibit a voting method that would make possible the transfer of votes. The interpretation of the Constitution of the Student Federation must abide to the rules stated under article 8.4.4 and the following. In the case of article 4.10.2, the English and French versions of the text greatly differ. According to the rules of interpretation, we must look at the Constitution as a whole to establish the intent of the Board of Administration. When read together, it appears to us that those articles are intended to guarantee the voting rights of each student and to limit this right to one vote per person. The question is whether using a system which in theory allows someone to vote more than once would be unconstitutional. The committee was not convinced by the plaintiff's argument that this system would facilitate fraud. We agree with the defendants' opinion that the potential of abuse exists in any system. The defendants demonstrated to us that each student could only vote once with their own identifier. The potential fraud mentioned by the plaintiff relies on a voluntary process by which students would transfer their identifier to another student, allowing the latter to vote for them. This argument presupposes the bad faith of the student population. The defendants accurately remarked that the time needed to transfer identifiers to another person would be in fact greater than the time needed to simply vote based on someone's else recommendation. The risks of electoral fraud have always existed and will always exist no matter which system is used. The committee is not convinced that the new system would increase the risk of fraud. Therefore, our answer to the present question is negative. 8.4.4

TRANSLATED FROM FRENCH (ORIGINAL) TO ENGLISH – JAN 30.2009 To respect the following rules of interpretation when dealing with any document or agreement that may result from or be related to this constitution including any appropriate changes that may be effectuated: 8.4.4.1 The constitution as a whole is to be read in its entire context so as to ascertain the intention of the Board of Administration, executive or pertinent director (taking into consideration the literal sense, if not implicit meaning of the words contained in this constitution), the objectives wanted to be fulfilled by the said constitution, and the general arrangement of the constitution. 8.4.4.2 The words of the individual sections are to be applied to particular cases under consideration so as to be read in their grammatical and ordinary sense in light of the intention of the Board of Administration embodied in this constitution, its objectives and general arrangement. If the words are clear, unambiguous and in harmony with the Board of Administration, objectives and general arrangement of the constitution, then no further interpretation will be required. 8.4.4.3 If the words of the individual sections are apparently obscure or ambiguous, then a meaning that best conforms with the intention of the Board of Administration, the objectives and general arrangement of the constitution shall be found. Let it be noted that the meanings given to the words shall be meanings that the said words are reasonably capable of bearing. 8.4.4.4 If, notwithstanding that the words are clear and unambiguous when read in their grammatical and ordinary sense, there should still be disharmony with this constitution or any other statute that may rule on analogous matter, then a less grammatical or less ordinary meaning that will produce harmony is to be given to the words. Let it be noted, again, that the meaning given to the words shall be meanings that the said words are reasonably capable of bearing. 8.4.4.5 If obscurity, ambiguity or disharmony cannot be resolved objectively by referring to the intentions of the Board of Administration, the objectives of the constitution or its general arrangement, then a meaning of the words that appears most reasonable shall be selected.

Question 3: Can the audit process qualify as a recount in the sense of article 4.12 and the following? The plaintiff claims that the audit process that is part of the electronic system does not qualify as a recount in the sense of article 4.12 and the following. Here is the text of those articles: 4.12 Recount 4.12.1 Any candidate may request a recount. To do so, she must notify the Chief Electoral Officer within two (2) business days after the day of the vote count. 4.12.2

TRANSLATED FROM FRENCH (ORIGINAL) TO ENGLISH – JAN 30.2009 The Chief Electoral Officer must advise all other candidates for the disputed position of the request for a recount before the recount takes place. 4.12.3 In the case of an executive position, the Chief Electoral Officer shall proceed to an immediate recount if twenty-five (25) votes or less separate the leading candidate from the nearest opponent. 4.12.4 In the case of a faculty director position or positions, the Chief Electoral officer shall proceed to an immediate recount if ten (10) votes or less separate the candidate occupying the last seat to be filled from the candidate with the next greatest number of votes. 4.12.5 The Chief Electoral Officer must, within ten (10) business days following the publication of the results of the election in the The Fulcrum and La Rotonde, submit a report on the election to Board of Administration members.

The word ''recount'' is not defined in the Constitution of the Federation. The Petit Larousse 2008 and the Nouveau Petit Robert both define the verb ''recompter'' (to recount) as ''compter de nouveau'' (to count again). The Grand dictionnaire terminologique defines ''recomptage'' in the context of elections as the ''deuxième compte des suffrages exprimés'' (second counting of the votes cast). Although a literal interpretation of the articles tends to support the plaintiff's argument, the committee believes that in this particular case the interpretation must take into account the intent of the Board of Administration. The defendants claim that the committee must consider the will of the Board of Administration when it approved the electoral procedures. We reject this interpretation. When it is necessary to consider the intent of the Board, we are looking for its intent in adopting the Constitution, not in taking position on some political question. We are of the opinion that when it adopted this article, the Board of Administration intended to put in place a process to verify the accuracy of election results. When an election is conducted through a conventional voting method, it is understood that the only means to achieve this end is to proceed to a recount. We are now considering an electronic voting method where no physical ballot is used and where the element of human error in manipulating these ballots is avoided. The nature of an electronic voting system means that data on paper is replaced by virtual data (''données immatérielles''). The question, according to our committee, is thus to determine if the Elections Committee implemented a process to ensure the accuracy of the election results. The defendants demonstrated to the committee the existence of such an audit process that would trace back each vote cast during the election, while protecting the anonymity of the voter. For these reasons, our answer to question 3 is positive.

TRANSLATED FROM FRENCH (ORIGINAL) TO ENGLISH – JAN 30.2009 CONCLUSION For the reasons previously stated, our opinion in answering each of the questions in issue is the following:

1. Does the Constitution implicitly or explicitly states that the votes must be cast through a conventional paper ballot? The answer is no. 2. Does the electronic voting method violate article 4.10.2 of the Constitution by allowing the transfer of votes? The answer is no. 3. Can the audit process qualify as a recount in the sense of article 4.12 and the following? The answer is yes. This decision made on January 22, 2009 is final. Any appeal process must take this date as a starting point and must be based on the proof and arguments presented in this case. Please also note that the audio recording of this hearing will be archived by the Arbitration Committee for a period of two years following the date of the hearing, in conformity with article 8.6.1.9 of the SFUO Constitution.

_______________________________ Brendan Clancy, arbitrator, SAC

_______________________________ Guillaume Pelegrin, arbitrator, SAC

_______________________________ Samantha Green, arbitrator, SAC