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In Tuesday's Globe and Mail Lawrence Martin writes: "The Supreme Court threw out a bid to have a result in Etobicoke Centre thrown out, setting a very high bar in so doing for anyone trying it."
Martin was referring to the so-called Opitz case, named after Conservative MP Ted Opitz, who very narrowly won the 2011 federal election in Toronto’s Etobicoke Centre.
A lower court had overturned Opitz's victory because of a number of voting irregularities (voters who did not have proper identification, that sort of thing), but the Supreme Court overturned the lower court.
That Supreme Court decision, on first reading, does give the impression that the justices believe the courts should be very cautious in interfering with the electoral process, and should only do so when absolutely necessary.
Given that, in the case now before Federal Court Judge Richard Mosely, why does Steven Shrybman, the lawyer for the eight Canadians seeking to overturn the result of the 2011 election in six ridings, so frequently quote the Opitz decision?
The fact is that the eight Canadians and their lawyers believe the Supreme Court judgment in Opitz actually supports their case.
Shrybman notes that Opitz was about votes that should not have been cast.
The current case is about votes that never got into the ballot box -- possibly a great many votes.
No one should be denied the right to vote -- Supreme Court in Opitz
The lawyer for the eight citizens frequently cites what the Supreme Court had to say about the sacrosanct and essential nature of the vote in a democracy. In effect, the Court said that we, as a society, must do everything possible to assure that no citizen is deprived the right to vote.
The right to vote is the cornerstone of our democratic system; it is the way all citizens, rich and poor, get to participate in the democratic political process.
Elections Canada first became aware of possible fraudulent calls in which someone impersonated Elections Canada and told voters their polling station had been moved just days before the May 2011 election.
In point of fact, Elections Canada never contacts voters by telephone.
On the eve of the last election, the agency complained to the Conservative Party about reports it was receiving about such calls. The Party's lawyer assured Elections Canada that such calls were being made only to Party supporters and as part of a general get-out-the-vote effort.
That claim does not now appear to be true.
There is a mounting body of evidence that somebody called a great many voters who had been identified as non-Conservative supporters and told them, falsely, that their polling places had been moved.
When the Chief Electoral Officer appeared before a Commons Committee last March government MPs tried to diminish the significant of this voter suppression affair.
They argued that any seeming abuses could have just been "accidental."
The Chief Electoral Officer bristled at that and made it clear that he thought impersonating Elections Canada was a not a trivial affair. It was something he found extremely troublesome.
Court can advance the cause of voting rights
For his part, Shrybman has underscored that though this affair is being investigated by Elections Canada and by some in the media, the current Federal Court case will be the first opportunity for the judiciary to pronounce on the new and disturbing phenomenon of voter suppression in Canada.
Americans have lived with voter suppression tactics for quite some time, Shrybman told the Court, but prior to 2011 this kind of tactic was quite unknown in Canada.
The lawyer for the eight citizens has been indicating to Judge Mosely, in effect, that if the Federal Court judge agrees with what the Supreme Court has said about the need to vigorously protect the right to vote, then this is his chance to do something about that.
This case is an opportunity to nip in the bud what, in the U.S., has became almost a plague of dirty tricks and tactics (some legal, some not) to prevent the young, the poor and members of minority groups from voting.
Shrybman readily admits that his case does not have "a loaded gun." He cannot produce voters who received bogus calls about their polling place and then did not vote as a result.
What he can produce is a significant volume of evidence from the investigations that Elections Canada has thus far carried out, and from media reports, that fraudulent efforts to deter non-Conservative voters took place across Canada in 2011.
Add that evidence to the survey evidence of Frank Graves and you get a picture of an election that was fundamentally tainted.
Graves' firm EKOS anonymously surveyed voters in the six ridings at issue.
They asked, first, if the voters had, at some point during the election campaign, told Conservative Party callers whether or not they were Conservative supporters.
They then asked if the voters had received subsequent fraudulent calls misdirecting them to the wrong polling place.
The survey found that previously self-identified non-Conservative supporters were much more likely to receive the deceptive calls than self-identified Conservative supporters.
It is a correlation that goes well beyond random coincidence, according to Graves.
Hamilton marshalling his arguments for rebuttal
Shrybman discusses the Graves evidence with the Court on Wednesday.
On Tuesday, he spent a great deal of the Court's time going though related evidence, mostly from sworn statements by Elections Canada investigators, that shows the widespread occurrence of election fraud throughout Canada in 2011.
It all forms a coherent and disturbing picture, Shrybman argues.
The lawyer for the eight says the Federal Court has a chance, now, to put the brakes on what could become a corrosive and dangerous practice in Canada -- the practice of winning elections by preventing those who do not support your party from voting.
Conservative lawyer Arthur Hamilton will get his chance to rebut Shrybman later this week, and he has already been warming to the task.
One of his first shots across the bow has been to accuse the Council of Canadians, which is supporting the action by the eight citizens, of acting to benefit financially.
The Council issued a news release on Tuesday pointing out that this risky initiative is actually costing it money.
"Current legal costs for the applicants, even though discounted by 40%, are over $560,000, and are expected to climb to $600,000 or more. [Through fundraising] the Council has raised just over $300,000..."
"The Council is supporting this case because it's about democracy, not cash cows," the organization's Executive Director Garry Neil pointed out.
"The legal costs, thanks to the delaying tactics of the respondent Conservative MPs, have far outstripped fundraising."
The case continues for at least the rest of this week.
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