If you ever plan to play hockey with Arthur Hamilton, you would be well advised to cover your groin if he gets you in the corner.

Hamilton is the lawyer for the Conservative MPs who are, in effect, “defendants” in the voter suppression case now before the Federal Court in Ottawa.

The proceedings got under way on Monday and, on their first day, they seemed a bit like extreme fighting in an Alice-Through-the-Looking-Glass world.

The somewhat surreal questions raised included whether expert witness, Frank Graves of EKOS, had contributed a few hundred dollars to the Liberal Party or to the Ignatieff and Rae leadership campaigns, six and four years ago.

Hamilton said Graves was a liar with no credibility because he could not remember. When Graves hesitated while being interrogated on these barely relevant facts, Hamilton snapped: “Just like you lied about being a ‘doctor’”.

Graves answered that he never calls himself “doctor”. He patiently explained that the law firm of Sack, Goldblatt, Mitchell did so in error, and that he corrected them within hours. 

Attacking via Twitter

The lead lawyer for the eight Canadians seeking to have the election result in six ridings overturned is Steve Shrybman of Sack, Goldblatt, Mitchell. Hamilton went after him, ad hominem, as well. 

When the Conservative Government announced, some months ago, that it would cut Elections Canada’s budget, Shrybman tweeted that it was “payback time for the Conservatives”. He meant, obviously, that the Conservatives were cutting Elections Canada because that agency had gotten into their face a bit too much, once too often.

Hamilton didn’t see it that way. 

He interpreted “payback time” to mean that Shrybman was telling the world he wanted to exact some kind of “revenge” on the Conservatives. 

This led to a fairly comical exchange between Shrybman’s colleague Peter Englemann and Judge Richard Mosley, neither of whom, it appears, are particularly familiar with Twitter.

At one point, the Judge asked what the use of the tag “#robocall” meant.

Did this mean, Judge Mosely inquired, that there was a sort of conversation going on, of which Shrybman’s comment was a part?

There then ensued some attempt to explain the use of hash-tags on Twitter, which elicited stifled giggles from journalists present.

One possibly strong argument on Hamilton’s side

This isn’t either a sit-com or a reality show, of course. It is a serious business. 

But, at least on this first day, Arthur Hamilton did not seem interested in the serious business at issue.

Hamilton was not ready to focus on the question before the Court, which is whether or not there was fraudulent activity that tainted the last federal election. 

He wanted to make the case that the whole proceeding was unfounded and should be dismissed out of hand.

Hamilton did have one potentially telling argument: that there is not a single person, in any of the six ridings, who has come forward to say she/he was deterred from voting because of a misleading robocall.

That, on the face of it, seems like a big problem for the eight “applicants”, their lawyers and the Council of Canadians, which is supporting the case.  

Shrybman, his colleagues and the Council say that lack of aggrieved parties who did not vote is not an insurmountable hurdle. 

They have the evidence provided by Graves, whose firm conducted a survey of voters in the six ridings. 

That survey, the applicants say, shows there was a significant effort to suppress the votes of self-declared non-Conservatives. And that means, Shrybman and his colleagues argue, the results of the last election in those ridings are tainted and there must be by-elections. 

However, there was little talk of such substantive matters on the first day, least of all from Hamilton.

When he was not busy trying to impugn the reputation of an expert witness, or selectively quoting opposing counsel’s tweets, Hamilton was arguing that this case is not really an action brought, as the law requires, by eight individual citizens. 

He said this was, in fact, the Council of Canadians’ case.

The eight “applicants”, Hamilton argued, had been recruited by the Council, were financed by the Council and were told by the Council what to say in their affidavits.

Shrybman’s colleague Engelmann riposted that Hamilton’s argument was unsupported by evidence and deeply insulting to the eight citizens.

If Hamilton truly doubted the eight citizens’ credibility, then why did he not take the opportunity to cross-examine any of them, Engelmann asked.

Playing attack to get headlines?

The Judge did seem to grow weary of Hamilton’s tactics from time to time.  

When the “defence” lawyer insisted on reading a litany of examples of the Council of Canadians’ opposition to Harper Government policies (as evidence that the entire case is only an attempt to somehow “get at” the Conservative Government), Judge Mosley said something to the effect of: “Okay, we get it. The Council does not like the Conservatives. Now, can we move on please?”

Hamilton was supposed to cross-examine expert witness Graves on one specific matter only, an affidavit Graves had submitted on December 3rd. 

Instead, when Hamilton had Graves on the stand, he insisted on badgering the expert witness about the unrelated, and seemingly petty, question of Graves’ political contributions. 

The amounts and dates of the contributions were not in doubt. The only question was whether those contributions were to leadership candidates, via the Liberal Party, or to the Party itself. 

Though the Judge seemed none too pleased with this line of attack, he gave Hamilton a bit of latitude. But Hamilton pushed too hard and, finally, Judge Mosley put an end to it and instructed the lawyer to get to the affidavit.

Hamilton only grudgingly accepted the Judge’s order.  He said, almost truculently, something like “It’s your Court…”, and then proceeded to put a few perfunctory questions to Graves, as though the actual substance of the case was of little interest to him.

Why did Hamilton engage in this kind of attack-dog strategy, when the Judge did not seem to be buying any of it?

Well, media coverage immediately following the proceedings gives some clue. There may be method to Hamilton’s madness.

The lead of one Canadian Press story is: “The credibility of a key witness in a legal bid to overturn Conservative victories in six closely contested ridings came under fire Monday…”  

The story then goes on to talk about possible inconsistencies in Graves’ account of his (very small) political contributions and quotes Hamilton’s accusation that Graves is “unfit to be an expert witness.”

Frank Graves, for those who know him, is a social researcher and pollster with impeccable credentials. In fact, he has done extensive work for the Canadian government, including during the Harper years. 

But Hamilton achieved his aim in getting the attack on Graves’ integrity into the media. 

Blowing smoke, creating confusion and doubt, and appealing to narrowly partisan sentiment was Hamilton’s approach — at least on this first day. 

We’ll see what comes next. Stay tuned. 

Karl Nerenberg

Karl Nerenberg joined rabble in 2011 to cover Canadian politics. He has worked as a journalist and filmmaker for many decades, including two and a half decades at CBC/Radio-Canada. Among his career highlights...