A special prosecutor has concluded that a New Westminster school trustee’s presence as a scrutineer at a voting place during the 2022 civic election likely contravened the provisions of the Local Government Act – but does not warrant charges.
On May 26, the BC Prosecution Service announced John M. Gordon KC had been appointed as a special prosecutor in relation to an investigation into the actions of Gurveen Dhaliwal. Dhaliwal, an incumbent school trustee in New Westminster, was observed attending a local polling station on Oct. 5 as a scrutineer for another candidate.
A July 6 media statement from the BC Prosecution Service states the special prosecutor informed B.C.’s assistant deputy attorney general on June 29 that the charge assessment standard had not been met and no charge was approved.
“The BCPS applies a two-part test to determine whether criminal charges will be approved, and a prosecution initiated or continued,” said the media statement. “Prosecutors must independently, objectively and fairly measure all available evidence against a two-part test: whether there is a substantial likelihood of conviction; and, if so, whether the public interest requires a prosecution.”
The BCPS states that Dhaliwal was alleged to have remained at the voting place for approximately 20 minutes while acting as a scrutineer for another candidate from the same electoral organization (Community First New West). It noted that a scrutineer observes the conduct of the voting and counting proceedings at the voting station to ensure it is operating fairly.
“The special prosecutor concluded that Ms. Dhaliwal’s presence at the voting place as a scrutineer likely contravened the provisions of the LGA,” stated the media statement. “As a candidate, Ms. Dhaliwal was prohibited from being present in a polling place other than for the purpose of casting her ballot.”
The special prosecutor determined two possible defences might arise on the facts, including the fact that the presiding election officer did not ask Dhaliwal if she was a candidate and he mistakenly neglected to check her name against the list of candidates in the election – thus “an argument could be made that Ms. Dhaliwal’s wrongful act of remaining to scrutineer was induced by the election official’s error.”
According to the BC Prosecution Service, the special prosecutor concluded that the public interest does not require a prosecution in this case. It stated that the offence was committed as a result of a genuine mistake or misunderstanding of fact.
“During the police investigation Ms. Dhaliwal stated that she was unaware that, as a candidate, she was prohibited from being present at the voting place for any purpose other than casting her own ballot,” said the statement. “This fact was not noticed or brought to her attention when she presented her candidate representation form to the presiding election official at the voting place and was permitted to remain as a scrutineer.”
"Minor in nature"
The special prosecution also stated the loss or harm was the result of a single incident and was minor in nature. It noted she arrived at the community centre at 12:19 p.m. and departed the polling station at 12:39 p.m.
“Nothing remarkable occurred while Ms. Dhaliwal was present as a scrutineer. It was estimated that a small number of voters, perhaps a half-dozen, used the ballot box at which Ms. Dhaliwal was scrutineering over this period of time,” said the BCPS statement. “In terms of seriousness of the harm caused to a victim, ‘harm’ in this instance being a risk to election integrity, and the ‘victim’ being the electors of New Westminster, no actual harm is alleged. There are no reasonable grounds for believing that this offence is likely to be repeated by Ms. Dhaliwal.”
The special prosecutor also noted the Dhaliwal’s lack of history of relevant previous convictions or recent previous allegations that resulted in alternative measures.
“Ms. Dhaliwal has no criminal history. Her background of community involvement speaks well of her,” said the statement. “Her re-election to a second term shows she is well regarded in New Westminster.”
According to the statement, the special prosecutor noted that none of the various forms, guides, or statutory declarations used in the candidate representation process contained any statement about the statutory prohibition against candidates acting as scrutineers. He observed that including this information on these forms would help to avoid a similar situation in the future.
“In all the circumstances the special prosecutor concluded that the public interest did not require the prosecution of Ms. Dhaliwal for an offence under the LGA and accordingly no charge was approved,” said the BCPS statement.
"Vindicated by this decision"
Dhaliwal was first elected to the New Westminster school board in 2018 and re-elected in 2022. In June, she stepped aside as the board’s chair amidst news of a special prosecutor’s investigation into possible election rule violations.
The Record contacted Dhaliwal for comment. Dhaliwal’s lawyer, Joven Narwal of Narwal Litigation LLP, provided a statement on her behalf.
“We are pleased to announce that the independent special prosecutor has decided not to approve criminal charges against our client, Gurveen Dhaliwal, following a comprehensive investigation in which our client fully cooperated. The independent nature of the charge assessment serves as a testament to the integrity of our legal system which strives to ensure fairness and impartiality,” said the statement. “We would like to extend our client’s appreciation for unwavering support and encouragement from friends, family and members of the community who maintained their belief in her integrity.”
Continued the statement: “Vindicated by this decision, our client looks forward to continuing to serve New Westminster as well as the province of British Columbia and will not be granting any interviews or providing additional statements at this time.”
