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The Rideau Institute, an Ottawa-based think tank, gave a leadership award on Wednesday to Steven Shrybman, the lawyer who handled the so-called ‘robocall’ court case.
Shrybman represented six Canadians who sought to overturn the 2011 election in their ridings because of fraud.
In one sense, he and the six lost that case.
Federal Court Judge Richard Mosley ruled there was insufficient evidence that fraudulent activities had had an impact on the election results and denied the applicants’ request to annul the 2011 results and order by-elections.
In another, larger sense, though, Shrybman and the six won.
In his carefully crafted decision, Mosely pointed out that significant fraud did occur in 2011. He also said that whoever committed the fraud had access to the closely guarded National Conservative Party voter data base.
The Judge was careful not to specifically blame the Conservative Party.
He limited himself to the available facts.
But Mosley did pointedly note that the Conservative Party’s lawyer had made every effort to delay and sabotage a hearing on the ‘merits’ of the case.
A grab-bag of delay tactics
Starting at the earliest point in the preliminary proceedings, that lawyer, Arthur Hamilton, employed a variety of legal gambits aimed at making the case expensive and difficult for the six citizens and the Council of Canadians which assisted them.
Even after the case finally came to trial, at the end of 2012, Hamilton did not let up.
The Conservative lawyer shocked many observers when he engaged in low-blow attacks on the integrity of the six Canadians’ chief witness, pollster Frank Graves.
Hamilton even launched a personal attack on Shrybman himself — for which Mosley, in essence, firmly reprimanded him.
Then, at the 11th hour, the Conservative lawyer tried his final, desperate legal trick.
He dredged up an obscure legal provision called “champerty and maintenance.” That ancient Common Law doctrine prohibits a “third party” from intervening in a case in order to derive benefit for itself.
The lawyer for the six Conservative Members of Parliament tried to argue that the Council was getting rich on the election fraud case through its active and focused fundraising.
The Judge threw out that last minute gimmick, just as other court officials had earlier rejected all other delay tactics.
Who should pay for obstruction?
The Conservative tactics were, taken together, very costly and time consuming — which was their purpose, of course.
But, in his decision, Judge Mosley made sure the Conservatives would pay a price for their legal obstructionism.
In a little-noted passage at the end of his judgment, Mosely fixed costs on a proportionate basis, to be shared by the two sides.
The six applicants and the Council will have to pay for the costs associated with the substantive consideration of the actual issues at stake
The six Conservative MPs will have to assume all of the costs associated with their various legal delay tactics.
The exact amounts have yet to be determined, but Shrybman says it is certain that, in the end, the Conservative MPs will pay much more than will the six applicants and the Council of Canadians.
The message is that if you’re going to do everything short of lying on the floor and having a tantrum to delay a legitimate court proceeding, you’re going to pay a price — even if, in a narrow, technical sense, you ‘win’ the case.
Conservative actions belie claims of ‘outrage’
The Conservative Party claims that it shares the general outrage on the use of fraud in the last election.
But the Party’s actions belie that claim.
Not only did the Party seek to derail the robocall voter suppression court case, it has been notably uncooperative with Elections Canada’s investigation of that fraud, and it has failed to respond to the Chief Electoral Officer’s concrete proposals for reforms designed to put and end the sort of abuses that happened in 2011.
Judge Mosley pointed out that prior to 2011 we in Canada did not have a history of U.S.-style voter suppression tactics.
Both Mosely and the Chief Electoral Officer, Marc Mayrand, have noted that the use of fraudulent phone calls pretending to be from Elections Canada, and other tricks, in order to prevent people from voting, is a very dangerous and disturbing new phenomenon in Canada.
If the Harper government does not put a package of election reforms before Parliament by the fall of this year or, at the very latest, early in 2014, it will be too late to institute needed changes before the next federal election in 2015.
Harper could easily prove those who doubt the sincerity of his and his Party’s supposed ‘outrage’ wrong, if he wanted to.
He could introduce serious election reform legislation, based on Mayrand’s proposals, when Parliament returns in September of this year.
We’ll have to wait and see what the Prime Minister does on that front.
Right now, however, the stance of two Conservative MPs from Manitoba will only add to the sense that the current governing party has little interest in the niceties of the democratic process, and even less in instituting needed reforms.
Elections Canada undertook long and fruitless negotiations with the two MPs, James Bezan and Shelley Glover, to settle irregularities in their 2011 expenses.
Finally, at the end its tether, the federal election agency notified the Speaker of the Commons that the two were so deeply in defiance of the rules, and so uncooperative, that they should be suspended from the House.
The Speaker, Andrew Scheer, has not, however, suspended the two, because they — you guessed it — are going to court. And you may have also guessed this: their lawyer is none other than Arthur Hamilton.
It will now be months before this conflict is resolved.
Nobody who follows Canadian political affairs can remember any previous case in which Elections Canada has had no choice but to recommend the suspension of sitting MPs.
It’s another first for the Harper team.
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Nick Seebruch, editor
