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Hill Dispatches: Contesting electoral fraud in court is a real possibility

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The scandal over possible electoral fraud is firing in many directions.

The back-and-forth in Parliament is dizzying.

The opposition puts questions to the government to which we often get complete non sequiturs as answers.

On Thursday, the Prime Minister's Parliamentary Secretary, Dean Del Mastro, quoted the same supposed letter from a British Columbia Liberal candidate, about robocalls originating in the United States, on at least three different occasions, in answer to three entirely different questions!

NDP MP Charlie Angus finally had to say, "I don't think the member opposite was listening to the question!"

He was listening; he just did not feel obliged to respond. He had his rehearsed lines, and he never strayed from them.

See the Prime Minister stonewall

When Interim Liberal Leader Bob Rae offered to make public all of his party's robocalling and other similar records, and challenged the Conservatives to do the same, the Prime Minister still found a clever way to stonewall.

He expressed relief that finally we will get the "information we have been waiting for from the Liberal Party" and then resorted to the Orwellian formulation that his party has been complying with all "requests from Elections Canada."

We are left to figure out for ourselves what exactly that means.

What it does not mean is that the Conservatives are willing to do what the Liberal leader had just said his party would do -- make all relevant records public. The Conservatives have given no indication whatsoever that they will share any campaign information in a public and transparent way, in response to this scandal.

Their constant mode is all tactics all the time, with virtually no substance.

They have even trotted out their favourite line, which is that "we won the election" and all this fuss is just opposition "sour grapes."

The NDP's Alexandre Boulerice's answer to that particular rhetorical gambit was: "that is a bold statement from a party that did not receive 40 per cent of the popular vote."

In case anyone's forgotten, the combined NDP, Liberal and Green vote was well over 50 per cent.

It seems that the first-past-the-post system not only gives us a Parliament that is highly unrepresentative of the voters' actual choices; it confirms a winner-take-all fantasy that some have about a democratic process that is supposed to guarantee a voice for all Canadians in the national legislature.

The Conservatives' understanding of our Parliament seems to be that it is merely a version of the American presidential Electoral College. They do not see Parliament as a democratic and representative, deliberative, legislative body. To them it seems Parliament's only purpose is to select "the winner," just as the Electoral College south of the border selects the President.

Maybe that is why Conservatives are so impatient with silly parliamentary formalities such as debates on bills.

You can go to court over voter suppression tactics

As for robocalls and other similar games, given the theatre of the absurd we are getting from the House of Commons, it is refreshing that someone has now decided to take on this issue in another venue -- the courts.

Article 524.1(b) of the Canada Elections Act states that citizens (or, to use the Act's language, "electors") may contest an election in a given district on the grounds that "there were irregularities, fraud or corrupt or illegal practices that affected the result of the election."

That means any citizen can go to court and contest an election if she or he has evidence that there was some sort of monkey business, such as voter suppression tactics.

The problem is that few citizens have the time, expertise, money or energy to launch court cases on their own.

And so, the Council of Canadians (CoC) will make it easier for citizens who might have a case.

The Council announced on Thursday that it is canvassing its members and other Canadians to "determine the extent to which the 'robocalls' and other dirty tricks during the May 2011 federal election may have undermined basic democratic principles in ridings across the country."

Accessing the judicial system

Legal counsel to the CoC, Steven Shrybman, explains that citizens can make "an application to the Court to have the election in their riding declared null and void under the Canada Elections Act."

There is a big catch though. The relevant part of the Elections Act says that there is a time-limit on filing court action.

Such a filing must happen no more than 30 days after the election itself, or 30 days after 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."

Thirty days after the election has now come and gone. But Shrybman says a case could be made that many electors who were victims of fraud were unaware of it until the recent revelations. And so, the 30-day clock on court action could be considered to have just started counting down, perhaps a day or two ago.

There is very little time

That clock is, however, ticking very fast. If anything is to happen in the courts, it will have to happen soon.

In putting out a call for information from its members and from Canadians generally, the Council of Canadians is signalling that it is ready to assist with any court cases that might have merit.

Such assistance could embolden citizens who would normally be overwhelmed by the prospect of tangling with the justice system on their own.

Shrybman says that cases under the Canada Elections Act could be heard at appropriate courts in each province, such as the Superior Court, or could go directly to the Federal Court, which is what he would advise.

"These cases are almost certain to go all the way to the Supreme Court, in any event," Shrybman says. "So one might as well start as high in the judicial system as possible."

We'll soon see if there actually is enough real evidence to justify court cases.

If any such legal action does happen, Conservative Party spokespeople and lawyers will be well aware that slick Question Period punch and counter-punch tactics don't usually work in a courtroom.

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