Hill Dispatches: Robocall court cases could mean by-elections

Please chip in to support more articles like this. Support rabble.ca for as little as $5 per month!

Peggy Walsh Craig of Nipissing-Tamiskaming is going to court over robocalls.

Elections Canada may be investigating robocalls and other voter suppression tactics. But Elections Canada cannot overturn the results of an election in a given riding.

The only chance of overturning results of the 2011 election in any of the 308 ridings is the through the Federal Court.

That is why the Council of Canadians is supporting legal actions on the part of individual Canadians to overturn the 2011 results in seven ridings throughout Canada.

The Council's lawyer, Steven Shrybman, explains that Canadian electoral law provides that only aggrieved voters may seek court orders to "restore their franchise." Neither Elections Canada, nor anyone else, can do that. The result of such court orders would be significant -- they could mean by-elections.

"Uncharted waters"

The Council of Canadians provided reporters with one of the seven "Notices of Application," the case of the northern Ontario riding Nipissing-Tamiskaming, where the Conservative defeated the Liberal candidate by only 18 votes.

The "Notice" document points out that Canadian electors have the legal right to contest elections in their ridings if, in the words of the law, "there were irregularities, fraud or corrupt or illegal practices that affected the result..."

If the court finds that the legal grounds are satisfied, it "shall declare the election null and void."

Shrybman is quick to point out that this has never happened in Canadian history, at least not in relation to criminal activity. Previous overturned elections were based on technical issues.

"We are in uncharted waters here," Shrybman says.

In the view of the Council of Canadians, it will not be necessary to show that the number of voters not voting because of misleading robocalls was greater than the margin of victory.

The Council argues that the law only requires that the applicants must show there was sufficient illegal stuff taking place that it would be reasonable to conclude that the results of the last election, in the ridings in question, were not legitimate.

A chance to find out what calls were made, and to whom?

One strategy the Council and its legal counsel will likely use will be to call the operators of robocall companies such as RackNine as witnesses, and subpoena all of their relevant records. That would make it possible to see what misleading information those calls conveyed and to whom the calls were made.

In making its arguments, the Council may also call on a newly published research paper on the possible impact of robocall tactics in the last election.

The paper is called "Does misinformation demobilize the electorate? Measuring the impact of alleged 'robocalls' in the 2011 Canadian election."

The authors are two British Columbia researchers, Anke Kessler and Tom Cornwall, who only published their preliminary draft less than two weeks ago.

Using a complex statistical methodology, Kessler and Cornwall show that "in those ridings where allegations of robocalls emerged, turnout was an estimated 3 percentage points lower on average."

That meant an average of 2,500 voters per riding who did not go to the polls, quite possibly because of robocalls.

The authors readily admit that although there is a literature on voter suppression based on such "turn-off" factors as negative advertising, there is little scientific work on suppression of the vote by means of illegal activity.

It is difficult to conduct a controlled experiment on that sort of the thing, the authors explain, for ethical reasons. Researchers cannot commit fraud to find out if "crime pays."

A clear pattern of diminished voter participation

And so, the emerging robocall investigations provide what may be the first opportunity to explore the impact of what might have been an unprecedented, organized campaign of fraud and deception, designed to keep targeted groups of voters away from the polls.

Although their results will certainly be challenged by some, Kessler and Cornwall believe they can show a clear pattern of diminished voter participation that is correlated with the prevalence of robocalls, and not merely coincidental.

The Council of Canadians did not commission this research, but its legal counsel will almost certainly attempt to introduce it as expert evidence.

The research could help establish a basis for nullifying an election in a given riding, even if the "applicants" could not produce "defrauded" voters in a number greater than the margin of victory.

"The fact is that people who did not vote because they were misdirected by robocalls may not be very interested in coming forward,"Shrybman explains, "They may find it embarrassing, or it may be something they would rather forget. What we have to show is that the robocalls caused a certain degree of non-participation, which had an impact on the election result."

New elections versus criminal charges

The Council of Canadians is not seeking to circumvent the Chief Electoral Officer's ongoing investigation.

That investigation has a different purpose than the court cases.

Elections Canada is investigating grounds for possible criminal proceedings.

The Council of Canadians seeks to have by-elections called where the evidence warrants.

In the case of court challenges, it is not necessary to establish the identity of the perpetrators of possible fraud.

All the court needs to determine is whether fraud or other illegal activity took place -- and on a sufficient scale that warrants nullifying results in certain ridings.

Aside from Nipissing-Tamiskaming, the other ridings where voters are "going to court" are Don Valley East (in Toronto), Elmwood-Transcona (in Winnipeg), Saskatoon-Rosetown-Biggar, Vancouver Island North, Winnipeg South Centre and Yukon.

Thank you for reading this story…

More people are reading rabble.ca than ever and unlike many news organizations, we have never put up a paywall – at rabble we’ve always believed in making our reporting and analysis free to all, while striving to make it sustainable as well. Media isn’t free to produce. rabble’s total budget is likely less than what big corporate media spend on photocopying (we kid you not!) and we do not have any major foundation, sponsor or angel investor. Our main supporters are people and organizations -- like you. This is why we need your help. You are what keep us sustainable.

rabble.ca has staked its existence on you. We live or die on community support -- your support! We get hundreds of thousands of visitors and we believe in them. We believe in you. We believe people will put in what they can for the greater good. We call that sustainable.

So what is the easy answer for us? Depend on a community of visitors who care passionately about media that amplifies the voices of people struggling for change and justice. It really is that simple. When the people who visit rabble care enough to contribute a bit then it works for everyone.

And so we’re asking you if you could make a donation, right now, to help us carry forward on our mission. Make a donation today.


We welcome your comments! rabble.ca embraces a pro-human rights, pro-feminist, anti-racist, queer-positive, anti-imperialist and pro-labour stance, and encourages discussions which develop progressive thought. Our full comment policy can be found here. Learn more about Disqus on rabble.ca and your privacy here. Please keep in mind:


  • Tell the truth and avoid rumours.
  • Add context and background.
  • Report typos and logical fallacies.
  • Be respectful.
  • Respect copyright - link to articles.
  • Stay focused. Bring in-depth commentary to our discussion forum, babble.


  • Use oppressive/offensive language.
  • Libel or defame.
  • Bully or troll.
  • Post spam.
  • Engage trolls. Flag suspect activity instead.