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Steven Shrybman is a lawyer with Sack, Goldblatt, Mitchell LLP. His practice focuses on international trade and public interest litigation, including issues concerning the environment, health care, human and labour rights, the protection of public services, natural resources policy, and intellectual property rights. Steven frequently speaks, and has written extensively, on the impact of international trade law on diverse areas of Canadian policy and law. He has also been involved in drafting and promoting conventions on cultural diversity and access to water as a human right.

If you didn't like that #robocall, here's something you might do about it

| February 26, 2012

Evidence has recently come to light that among other dirty tricks to suppress the NDP and Liberal vote, fraudulent robocalls where made to voters in several ridings by a firm linked to the Conservative party.

Understaffed Elections Canada has been investigating since last summer, and the leaders of the NDP and Liberal parties have called for a full inquiry.

But there is also a remedy under the Elections Canada Act that many may not be aware of, for s. 524(1) of the Act provides that:

Any elector who was eligible to vote in an electoral district, and any candidate in an electoral district, may, by application to a competent court, contest the election in that electoral district on the grounds that:

[...]

b) there were irregularities, fraud or corrupt or illegal practices that affected the result of the election.

Section 531 (2)of the Act further provides:

After hearing the application, the court may dismiss it if the grounds referred to in paragraph 524(1)(a) or (b), as the case may be, are not established and, where they are established, shall declare the election null and void or may annul the election, respectively.

But anyone thinking about invoking their right to file an application under s. 524(1) should be aware that under s. 527, their right to do so is time limited, for such an application must be filed within 30 days after the later of:

• (a) the day on which the result of the contested election is published in the Canada Gazette, and

• (b) the day on which the applicant first knew or should have known of the occurrence of the alleged irregularity, fraud, corrupt practice or illegal practice.

The question that arises here is how a court will interpret the phrase "first knew or should have known" in light of the recent revelations concerning robocalls and other dirty tricks that many voters may not have previously known about either because they did not get such a call, or did not appreciate the fraudulent nature of a call they did receive.

Anyone contemplating bringing such an application should also be aware that under s. 528, an application may not be withdrawn without leave of the court.

The foregoing should not be taken as legal advice, and as most will know, litigation can be expensive and carries the risk of having to pay another party's costs as well. For these reasons and others, anyone thinking about bringing an application under s. 524(1) would be wise to get legal advice before doing so.

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Comments

I got a robocall in Elmhurst in Winnipeg apparently from Elections Canada which stated my voting location had moved from 3 blocks away to a few dozen blocks. This is the riding of Conservative Stephen Fletcher. There is no way he would lose that riding, yet I got a call anyhow.
21,000+ messages sent in first 24 hours

Send quick online automatic robo-letter protesting robo-calls:

http://www.leadnow.ca/robocall-fraud

 

I object to the characterization of the Liberals as centre-left, by the bye. I personally think that the Conservative victory was a result of Conservative misdirection during the campaign with collusion from newspapers and other media, who drew attention away from the Conservative's bumbling record and ghastly future plans. I spoke to some voters who actually saw the Conservatives as reliable fiscal managers!

And while Harper's Conservatives were (and are) undoubtedly crooked and corrupt, voting over corruption doesn't have an impressive track record. (Trudeau-era corruption got us Mulroney; Mulroney corruption got us Chrétien; Chrétien corruption got us Harper. Does anyone else see a frying-pan to fire phenomenon here?) I'm with Nicole, who seems to be saying let the police dig up the bad guys. Satisfying as it would be to see a raft of Conservatives in jail, until people look at record and policy, we're not going to get anywhere. And yes, I'm a dreamer.

@bobogenic,

The funnelling of money to firms which later kicked back cash to the Liberals began in 1993, with funding going to firms promoting federalism--i.e., to counter the PQ. It was in 1995 that information about kickbacks to the Liberal party began to leak out. Again, the advertising contracts were supposedly intended to counter separatism. Note that I did NOT write that the 1995 referendum was "over the sponsorship scandal." Rather, the pro-federalist propaganda leading up to the referendum was part of an illegal kickback scheme, the nature of which came out AFTER the referendum.

Interestingly, Groupaction wasn't the only entity which got money from the Chretien government, which was 'donated' to the Liberal Party: the Coalition for Gun Control got a $380,000 grant (apparently, the government wanted itself lobbied on gun control), thousands of which made their way to the Liberal Party.

Both the Liberals and the Bloc suffered heavilly, in terms of losses to the NDP. These were mostly progressive/centre-left voters. In ridings where (centre-right) voters switched from Liberal to Conservative, the margin of defeat was generally so large that Bob Rae's assertion that mis-directed, or influenced voters resulted in a Liberal defeat are simply ludicrous. The Liberals were clobbered at both ends by the NDP and Conservatives, and no whining about 'sabotaging democracy' changes this reality. And the Conservatives weren't the only party who used dirty (and possibly illegal) tricks in the election: the Liberals stole and destroyed campaign materials from the Green Party, and the NDP made use of fraudulently-registered voters in at least one riding.

 

@bscutter

There are a couple of inaccuracies in your post:

1) The Libs lost 26 seats to the Cons, and only 17 to the NDs. The bulk of the NDs gains were at the expense of the BQ - 44.

2) The 1995 referendum was not over the sponsorship scandal - that took place several years after the referendum.

 

Here's a list of the ridings supposedly affected by the 'robocalls':

1. Sydney-Victoria (N.S.): Winner: Liberals; Margin of victory: 765 votes

2. Egmont (P.E.I.): Winner: Conservatives; Margin of victory: 4,470 votes

3. Eglinton-Lawrence (Ont.): Winner: Conservatives; Margin of victory: 4,062 votes

4. Etobicoke Centre (Ont.): Winner: Conservatives; Margin of victory: 26 votes

5. Guelph (Ont.): Winner: Liberals; Margin of victory: 6,236 votes

6. Cambridge (Ont.): Winner: Conservatives; Margin of victory: 14,156 votes

7. Hamilton East-Stoney Creek (Ont.): Winner: NDP; Margin of victory: 4,364 votes

8. Haldimand-Norfolk (Ont.): Winner: Conservatives; Margin of victory: 13,106 votes

9. Kitchener-Conestoga (Ont.): Winner: Conservatives; Margin of victory: 17,237 votes

10. Kitchener-Waterloo (Ont.): Winner: Conservatives; Margin of victory: 2,144 votes

11. London North Centre (Ont.): Winner: Conservatives; Margin of victory: 1,665 votes

12. London West (Ont.): Winner: Conservatives; Margin of victory: 11,023 votes

13. Mississauga East-Cooksville (Ont.): Winner: Conservatives; Margin of victory: 676 votes

14. Niagara Falls (Ont.): Winner: Conservatives; Margin of victory: 16,067 votes

15. Oakville (Ont.): Winner: Conservatives; Margin of victory: 12,178 votes

16. Ottawa Orleans (Ont.): Winner: Conservatives; Margin of victory: 3,935 votes

17. Ottawa West-Nepean (Ont.): Winner: Conservatives; Margin of victory: 7,436 votes

18. Parkdale-High Park (Ont.): Winner: NDP; Margin of victory: 7,289 votes

19. Perth-Wellington (Ont.): Winner: Conservatives; Margin of victory: 15,420 votes

20. Simcoe-Grey (Ont.): Winner: Conservatives; Margin of victory: 20,599 votes

21. St. Catharines (Ont.): Winner: Conservatives; Margin of victory: 13,598 votes

22. St. Paul's (Ont.): Winner: Liberals; Margin of victory: 4,545 votes

23. Sudbury (Ont.): Winner: NDP; Margin of victory: 9,803 votes

24. Wellington-Halton Hills (Ont.): Winner: Conservatives; Margin of victory: 26,098 votes

25. Willowdale (Ont.): Winner: Conservatives; Margin of victory: 932 votes

26. Saint Boniface (Man.): Winner: Conservatives; Margin of victory: 8,423 votes

27. Winnipeg South Centre (Man.): Winner: Conservatives; Margin of victory: 8,544 votes

 

Were the calls impersonating Liberals sleazy as Hell? Yes. Were the calls impersonating Elections Canada officers illegal? Probably. Did this affect the outcome of the election (Tory majority, NDP opposition, Liberal and Bloc wipeout)? No. Only a couple of the affected ridings had margins slim enough that confused voters, misdirected from polling stations, would have mattered. (e.g., Etobicoke Centre). Progressive (Liberal, Bloc) voters would rather eat their socks than vote Conservative. And supposedly mis-directed, psychically-predicted by robocallers as Liberal voters still ended up finding their ways to polling stations. What decimated the Liberal Party and delivered a Conservative majority was the mass exodus of centre-left voters, mostly in Quebec, to the NDP.

IF reruns of the election are held, this will not benefit the NDP. For one thing, Quebec voters' support for the NDP has been in free-fall since the election. (The 'Orange Wave' was mainly a three-way protest vote against the Conservative, Liberal, AND Bloc Quebecois parties). And there are some very dubious cases (e.g., Edmonton-Strathcona), which have already been referred to Elections Canada, where the NDP would lose ridings, to Conservative, Liberal, or Bloc candidates. The result would likely resemble, more or less, the pre-2010 Parliament: either w Conservative minority, or weak majority, with a three-way Liberal-NDP-Bloc opposition. Quietly, the NDP know this, which is why the Liberals and not the NDP are the ones who are most vocal over 'robocallgate.'

Again, the reality is that both the Liberal party wipeout and the Conservative majority were due to the huge surge in NDP seats, mostly in Quebec, and NOT a handfull of less than close races in the GTA. However, Bob Rae will not say this out loud, because he is still hoping to merge his crippled party with the NDP, and does not want to burn any bridges. And a judicial call for a rerun won't get anywhere...anymore than the Bloc and PQ calling for a do-over of the 1995 referendum over the sponsorship scandal.

Let's hope someone follows up on that tactic. Meanwhile we need to keep the pressure on. Tweet, write to your MP and tell them and everyone that this is a fundemental attack on democracy in Canada straight out of the Florida playbook of GW Bush. 

If our MPs don't get on this like a Rottweiller on a steak, they--any of them--don't deserve our votes any more. And if this can stand what are our votes worth? Democracy is under attack worldwide, it interferes with the elitist agenda. Let's interfere with them!

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