Hill Dispatches

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Karl Nerenberg has been reporting on federal politics from Parliament Hill for rabble.ca since September, 2011. In his long career, he has won numerous awards as a broadcaster and documentary filmmaker.

Voter suppression trial concludes: Now it's up to the Judge

| December 17, 2012
Voter suppression trial concludes: Now it's up to the Judge

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The biggest political news story of 2012, according to a poll the The Hill Times did of political staffers and Members of Parliament, was "Election fraud / robocalls."  

A big chapter in that story closed on Monday in Federal Court. Lawyers for both sides completed their closing arguments, and it is now up to Judge Richard Mosley to decide whether or not to accept the arguments of six Canadians that the 2011 election in their ridings should be overturned.

The case is based on a provision in the Canada Elections Act that allows citizens who believe there were irregularities or cases of fraud that tainted an election to seek redress from the courts. 

Courts have ordered by-elections in the past, mostly in cases where the original result was very close and there were a sufficient number of dubious ballots to cast doubt on the validity of that narrow result.

The current case is a different kind of beast.

It is not so much a numbers game as a dispute over whether or not there was serious and widespread fraud during the May 2011 federal election.

There have been many news stories, over the past ten months, about phony and harassing calls to voters in the dying days of the 2011 campaign and on Election Day itself.  Elections Canada is actively investigating all of that; but so far nobody has been charged with any offence.

The current Federal Court case offers the first chance for any public official to pronounce him or herself on the notional fraudulent practices that may have tainted the 2011 election.

Was there fraud -- and was it bad enough to justify nullifying election results?

The lawyers for the six applicants -- as the Canadians seeking by-elections are called -- have argued that the Judge needs to decide two things.

First, was there widespread fraud, involving deceptive and harassing calls, during the last campaign? And, second, was that fraud sufficient to taint the election results in the six ridings?

If Judge Mosley's answers to the questions are "yes, in both cases," the six applicants' lawyers argue he must throw out the last election's result and order six by-elections.

However, even if the Judge answers yes only to the first question and no to the second, the six Canadians -- and the Council of Canadians which is supporting them -- will have achieved a victory of sorts. 

It will mean official recognition of the fraudulent activity about which there has been much sound and fury since last February, when the "Pierre Poutine" of Guelph story broke -- but no concrete, definitive, public action.

The lawyers defending the six Conservative Members of Parliament whose seats are at issue have, at times, used the kind of aggressive tactics that we have come to expect from the Conservatives in Parliament.

They have attacked the professional integrity of the six Canadians' chief witness, social researcher and pollster Frank Graves. 

They have impugned the motives of the Council of Canadians.

And they have even attacked the applicants' lead lawyer, Steven Shrybman, claiming he is motivated by some kind of "grudge" against the Conservative Government.  

When not in attack mode they have tried legal delay tactics, such as asking that the six post bonds of a quarter million dollars before the case could proceed. 

All of their delaying motions were thrown out, but achieved their purpose of draining the Council's financial resources and sapping opposing counsel's energy.

Too late; too early; lawyers shouldn't decide elections

As for legal arguments, the Conservative MPs' lawyers have tried them all, even when they have not been logically consistent. 

For instance, at one point, the Conservative lawyers have argued that the applicants brought their case too late, beyond the legal limit. They say the argument that Canadians, in general, could not have known that the strange calls they received during the campaign might have been fraudulent until the massive media coverage last February is wrong. There was some media coverage at the time of the election, the lawyers say, and too bad for the applicants if they did not notice it.

Then, at another point, they argued that the applicants should have waited even longer, until Elections Canada completes its investigation -- whenever that might happen.

The Conservative lawyers argued strenuously that Canadians need to know that once an election has happened its results are certain. An election should be decided by voters, not lawyers, Conservative lawyer Arthur Hamilton said, and, as did the applicants' lawyers, cited the Supreme Court ruling in the recent Opitz case. That was when the Supreme Court overturned a lower court's setting aside of the result of the 2011 election in the Etobicoke Centre riding in Toronto.

The applicants' lawyers had pointed to what Opitz had to say about the fundamental importance of the right to vote in a democracy. Hamilton quoted Opitz to show that the Supreme Court had set a high bar for overturning election results.

Then there is the evidence

The Conservative lawyers also tried to take apart the evidence Shrybman and his colleagues had presented.  Some of that evidence came from sworn Elections Canada investigators' statements which Hamilton and his colleague Ted Frankel said was all inadmissible hearsay.  

The applicants' side made a dense legal argument that this sort of hearsay, from, in essence, law enforcement officials, was admissible. This is not a criminal case, Shrybman reminded the Judge, and the standard of proof is not "beyond a reasonable doubt." The standard is "on a balance of probabilities."

Hamilton and his team were most relentless in their pursuit of the applicants' chief witness, Frank Graves. 

They devoted much effort to impeaching Graves' personal and professional reputation, a card they may have overplayed. The Judge did not seem too patient with that line of attack, at times.

But the Conservative legal team did also make some effort  to attack Graves' methodology. 

What the six applicants asked Graves to do was to survey voters in the six ridings and to find out whether or not there was a correlation between having been identified as a non-Conservative supporter and subsequently receiving deceptive calls. 

Graves used interactive voice technology, a form of "robocall" in fact, and concluded that voters who had told an earlier caller they did not support the Conservative candidate were much more likely than self-identified Conservative supporters to receive deceptive, misleading or harassing calls.  

Among Hamilton's objections to this evidence was that Graves had not given his respondents the opportunity to answer "don't know" or "cannot recall."

But in their cross-examination of Graves (conducted well before the Federal Court hearings the past week), Hamilton and his team touched very lightly on substantive matters and devoted most energy to impeaching Graves' credibility.

Then, on the last day of the trial, the Conservative legal team tried a head fake.

They argued that Graves' calls in the six ridings were not reliable because he used area codes to select subjects to receive "randomized" calls, but could not be sure the people called were in the actual ridings.

When the Judge asked Shrybman about this, the applicants' lawyer was uncomfortable, because that nuance of methodological detail is not in the sworn record. Shrybman explained that he could not comment on evidence Graves might give on this matter, and that he was hobbled by the fact that his opposite numbers had not chosen to put that issue to Graves in cross examination, when they had a chance.

When pressed, Shrybman said that, if asked, Graves would almost certainly say that his methodology assured that he did in fact have all the information necessary on people surveyed, including addresses and postal codes. Graves would say, Shrybman told the Judge, that he knew quite well in which electoral districts his survey subjects lived. 

In the end, the most telling argument against overturning election results is that nobody in any of the ridings has come forward to say that they did not vote because of a misleading call they received. 

A Conservative Party news release issued at the end of Monday's proceedings made that point. 

Of course, saying that is almost like admitting that, yes, fraudulent activity happened but that it wasn't that effective, so why worry?

Well, a lot of Canadians do worry about fraud and dirty tricks designed to suppress opposition votes becoming part of the political landscape. 

Shrybman repeated, on more than one occasion, that we're dealing with a clandestine, secretive activity, here. The perpetrators were good at covering their tracks, he told the Court. That's not a good reason for letting them get away with it. 

At the conclusion of the proceedings, the Judge said he would need some time to render a decision. That means it could be nearly spring before we get his verdict. 

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