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The eight Canadians who are in Federal Court seeking to have the results of the last election in six ridings overturned have made a strong case that some fairly widespread fraud occurred during the 2011 election.

They have presented an impressive body of evidence from Elections Canada’s investigations, from media reports, and from the scientific survey that Frank Graves did.

Taken together they paint a disturbing picture. 

In 2011, one or more people, who seem to have had access to Conservative party data base information, appear to have organized thousands of harassing or outright false phone calls to voters identified as being supporters of parties other than the Conservatives.

Even Conservative MP Pierre Poilievre virtually admitted that something was amiss in 2011. In his answer to a question on voter suppression, the Ottawa MP told the House that it was all of no import because no one has come forward to say he or she was deterred from voting in 2011.

As one wag put, it was the rarely used “but the crime wasn’t effective defence.”

Still, in Poilievre’s disingenuous argument lies the rub for the eight Canadians and their lawyers.

That lack of a ‘loaded gun’ problem

On Wednesday, Federal Court Judge Richard Mosely, who is presiding over this case, raised the fact that while there may well have been mischief during the 2011 election campaign, the eight have not shown that whatever happened altered the result of the election in the six ridings. 

Lead lawyer for the eight, Steven Shrybman, admitted as much on Tuesday, when he said he didn’t have a “loaded gun.” 

In response to Judge Mosley’s observation, however, Shrybman and his colleague Ben Piper argued that the Judge didn’t actually need a smoking gun to order by-elections in the six contested ridings. 

To support that argument, the lawyers relied heavily on the recent Supreme Court decision to overturn a lower court’s setting aside of the 2011 election result in Etobicoke Centre, the so-called Opitz case.

The lawyers quoted the majority decision in Opitz that said: 

“In deciding whether to annul an election, an important consideration is whether the number of impugned votes is sufficient to cast doubt on the true winner of the election, or whether the irregularities are such as to call into question the integrity of the electoral process.”

The important word in that sentence Piper said is: or. 

In other words, the Court should annul an election if there are proven hard numbers of tainted votes or, in the current case, votes-not-cast. 

Or, the Court should annul an election if there is evidence there were sufficient shenanigans to undermine the “integrity” of the process.

Piper argued that there could be either a mathematical reason for setting aside an election result or an integrity reason.

We may lack the mathematical smoking gun, the lawyers admitted, but we do have massive proof of the election’s compromised integrity. And in Opitz, they said, the Supreme Court said that’s all we need. 

Will the electoral process’ compromised integrity be enough?

At first blush, the Judge was not entirely convinced by this point.  

He quoted another passage from Opitz, which seems to take a different position on the integrity issue: 

“Only irregularities that affect the result of the election and thereby undermine the integrity of the electoral process are grounds for overturning an election.” 

In this instance, the Judge said, Opitz is not talking about one or the other.  Here, the Supreme Court seemed to say that the irregularities, the affected election result and the undermined integrity have to be linked.

And so, a decision on this case may come down to which part of Opitz carries greater weight.

If the eight citizens’ lawyers establish that there was fraud and abuse in 2011 sufficient to cast doubt on the integrity of the whole electoral process, will that be enough? In one passage, the Opitz judgment suggests that it should be enough.

Or, will the Judge decide that Opitz tells him he needs proof that the fraudulent activity had a direct, demonstrable effect on the vote count in the six ridings? In that context, the Judge might rule that while there was fraud in 2011, he does not have enough evidence to set aside the results in six ridings. 

Whatever happens, the whole matter will likely end up in the Supreme Court, which will be in the interesting position of having to give concrete meaning to its own recent Opitz decision.

Arthur Hamilton, the lawyer for the respondents, the six Conservative MPs who stand to lose their seats, starts making his case on Thursday.

So far, the Conservative lawyer’s main strategy has been to try to derail and distract the process. 

He has impugned Frank Graves integrity, accused the Council of Canadians (which is providing public interest support to the eight) of seeking to profit from the case, and even dug into lawyer Shrybman’s tweets to show that his opposite number’s “true motive” is to extract some sort of “payback” from the Conservative Party.

Hamilton was at it again on Wednesday. 

He went after Frank Graves, again, and, again, Twitter was at play.   

Hamilton raised the fact that after the Judge asked Graves to leave the courtroom for a few moments, on Monday, so that he (Hamilton) could more comfortably say deprecatory things about Graves’ honesty, Graves followed the court proceedings on Twitter – courtesy of journalists covering the trial. (Not this journalist, mind you — who does not have a handheld device capable of tweeting and mostly thinks that “to tweet” is something birds do…)

The Judge was not particularly impressed with this line of attack, but told Hamilton that if he could marshal some relevant facts he might want to bring a motion on this issue on Thursday.

That most recent interruption seemed almost the last straw for Shrybman. He complained to the Judge that Hamilton was constantly taking the proceedings down the “rabbit hole of distraction.” This sort of distracting behaviour, Shrybman suggested, could indicate that Hamilton does not think he has a very good case on the merits. 

On Thursday, Hamilton gets the whole stage to himself. It should be quite a show.

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...