The 'rumble in Ottawa': Main robocall fight is yet to come

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Steven Shrybman

The Ottawa Citizen calls it a "key victory" for the Tories in the so-called robocall case.  

A woman who had a signed an affidavit saying she had received automated calls before the last election giving her wrong information about polling stations erred in identifying her riding. 

The woman, Leeanne Bielli, thought she lived in Don Valley East, but actually lived in neighbouring Don Valley West. 

This is part of the potentially groundbreaking court case that involves seven ridings where would-be voters report they received misleading calls that interfered with their right to vote in 2011. 

The Council of Canadians has been assisting those citizens in a legal action they initiated to "restore their franchise" by overturning the last election results and holding by-elections.

Now, there are only six ridings. 

Earlier this week, the Council's lawyer, Steven Shrybman, had to remove Don Valley East from the list. 

The seven (now six) complainants intend to present evidence provided by pollster Frank Graves of the firm EKOS. 

Graves says he can show, through polling data, that there was a pattern of non-Conservative voters receiving deceptive robocalls that would have interfered with their voting in the 2011 election. 

Graves now has to remove the Don Valley East data from that package of data.

But the overall thrust of EKOS' research does not otherwise change.

A bag of legal stratagems 

Since this case got started last spring, the Conservatives have used a number of tactics to derail it. 

In one instance, Conservative lawyer Arthur Hamilton went to the Federal Court and requested that the seven complainants be required to post $250,000 each as "security deposits." 

The court rejected that idea. The law requires only $1000 deposit for each person seeking redress and that is what they will pay. 

Earlier, Hamilton had tried to have the cases tossed because they had been filed late -- too long after the election, according to the strict letter of the law. The Court rejected that gambit as well. After all, the citizens complaining could not have known earlier about the possibility that the calls they received were illegitimate.  

Inside and outside the court room, Hamilton has attempted to besmirch the professional reputation of pollster Graves. 

Hamilton argued that Graves is a Liberal Party partisan, and -- worse -- that he was acting out of sour grapes because when the Liberals were in power his firm received millions of dollars worth of work from the federal government, which it does not now receive. 

Hamilton conveniently overlooked the fact that EKOS continues to get a significant amount of federal government work. Among pollsters hired by the feds in recent years, EKOS is second in volume of work only to Ipsos-Reid.  


 All in all, Council of Canadians' lawyer Shrybman says he feels like he and Hamilton are doing the legal version of the famous "Rumble in the Jungle" boxing match between Muhammad Ali and George Foreman. 

That fight took place in Kinshasa in what was then Zaire, but is now the Democratic Republic of Congo.  

Ali's strategy was to assume a protective crouch for much of the fight. He let Foreman tire himself out throwing punch after punch. In the end, Ali came to life and defeated an exhausted, slower and heavier Foreman.

In the Robocall Rumble in Ottawa, Shrybman has been taking his share of punches from Hamilton. 

Until the Don Valley East disqualification, however, none of the punches had scored. 

Now, the Conservatives are arguing that the one solid scoring punch they landed in Don Valley East should mean the entire case is bogus and frivolous -- and should be thrown out.

Mind you, there is still that matter of the evidence in the remaining six ridings. 

And there are many respected folks in Ottawa who could attest to Frank Graves' competence and professionalism -- and to the high quality of his work. 

Why would the federal government continue to give contracts to EKOS if that were not true?

In the weeks to come, some of those respected folks might be tempted to come out in public to attest to the professional reputation of EKOS' President.

Voters who shouldn't vote and voters prevented from voting

 This Thursday the Supreme Court will rule on another court challenge that could result in a by-election. 

That is the case of Etobicoke Centre in Toronto where Conservative Ted Opitz defeated Liberal MP Borys Wrzesnewskyj by a mere 26 votes in 2011.

A lower court has already ruled that the election result be set aside and a by-election be called. 

That court agreed with the Liberal's argument that as many as 79 people who voted in Etobicoke Centre last time may not have been legally entitled to do so.

Courts have overturned federal election results, in single ridings, in similar circumstances in the past. The Etobicoke Centre case, however, is the first instance in which such a case has gone all the way to the Supreme Court. 

In Wrzesnewskyj versus Opitz the matter at hand is to prove or fail to prove that there were voters who should not have voted.  

In their six cases, on the other hand, the Council of Canadians and the citizen complainants must prove that there were voters who should have voted but who were illegally prevented from doing so.  

Both are serious matters. 

But while the former could be case of either careless administration or petty fraud, the latter is a manifestation of the new and growing phenomenon of "voter suppression."

We've been hearing about sophisticated efforts to suppress the vote in the United States for a while now, going back to the notorious, contested 2000 election.

In fact, in the USA, voter suppression by a variety of means -- including targeting visiible minorities as potential perpetrators of fraud -- seems to have become an accepted weapon in the political arsenal.

We don't yet know to what extent that might be true in Canada. 

If and when the Council and the six citizens get their day in court, it will be an education for us all, regardless of the ultimate outcome. 

 Karl Nerenberg covers news for the rest of us from Parliament Hill. Donate to support his efforts todayKarl has been a journalist for over 25 years including eight years as the producer of the CBC show The House. 

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