Dec 082012

In a lawsuit over allegations of voter suppression the integrity of the electoral system is at stake

By Glen McGregor and Stephen Maher, Ottawa Citizen

A few days before the May 2011 federal election, a phone operator in a Conservative Party call centre placed a call to the home of a retired couple in the northern Ontario town of Mattawa.

“Can I speak to Kenneth Ferance?” the caller asked.

“He’s sleeping right now. Can I help you with something?” said his wife, Linda Hearst.

“We’re calling from the Conservative Party,” the caller said. “Are you supporting the Conservative party?”

Hearst replied, “I wouldn’t vote for them if they were the only politician on the ballot,” and the operator politely ended the call.

On election day, after they voted, Ferance and Hearst received another call.

This caller claimed to be from Elections Canada. He told Ferance his polling station had been moved to a location about 20 kilometres away.

Ferance told the caller he was mistaken.

“It’s wrong because, A, I just voted. B, I live next door to the voting station, and C, I can still see people coming and going,” he recalled in an interview in April.

In Federal Court in Ottawa on Monday, a lawyer representing Ferance — along with voters in five other ridings who say they also received deceptive calls — will ask a judge to overturn the election results in their ridings.

The lawyer leading the challenge, Steven Shrybman, will argue that the elections ought to be set aside because of an orchestrated voter-suppression scheme, a deliberate attempt to stop people from voting, mostly by calling them and giving them misleading information about the location of their polling stations.

The litigation is backed by the left-of-centre advocacy group, the Council of Canadians, and targets six ridings all won by close margins by Conservatives, including Jay Aspin, who beat Liberal incumbent Anthony Rota by 18 votes in Ferance’s riding, Nipissing-Timiskaming.

In the courtroom, Shrybman will face Arthur Hamilton, the lawyer for the Conservative MPs. He will argue that the applicants can’t prove that they were disenfranchised, since they all voted in the election, and they haven’t managed to prove that the final result was affected by fraud.

The hearings will mark the first time a court has looked into allegations of voter suppression since the Ottawa Citizen and Postmedia News first reported on Elections Canada’s “robocall” investigation in February.

The reports drew public attention to an apparent pattern of voter suppression calls and prompted a nationwide investigation into calls like the one Ferance received. Even as the Federal Court case gets underway, Elections Canada continues to investigate misdirecting robocalls made in the riding of Guelph and misleading live and recorded calls reported by voters across the country. The applicants in the Federal Court cases must meet a difficult legal burden, proving that any “irregularity, fraud, corrupt practice or illegal practice” was enough to change the outcome of the votes.

Proving that is tough, as former Liberal MP Borys Wrzesnewskyj found out this year, when the Supreme Court of Canada rejected his attempt to have the election result in Etobicoke Centre overturned because of administrative errors that cast doubt on some of the ballots cast in that Toronto riding.

But Shrybman has a lot more evidence than he did when he launched the lawsuit, and he has since won a series of legal skirmishes that could have killed the case.

In an April interview with the Toronto Star, Hamilton predicted the court would quickly shut down the case.

“They don’t have any backup,” he said. “This is a publicity stunt.”

In July, though, the Federal Court rejected Hamilton’s argument. Federal prothonotary Martha Milczynski ruled that the calls could shake public confidence in the system.

“Far from being frivolous or vexatious, or an obvious abuse, the applications raise serious issues about the integrity of the democratic process in Canada and identify practices that, if proven, point to a campaign of activities that would seek to deny eligible voters their right to vote and/or manipulate or interfere with that right being exercised freely,” she ruled.

The court also rejected a motion from Hamilton that would have required the applicants to present a $260,000 surety, and refused to rule as inadmissible the key to Shrybman’s case: a study from EKOS pollster Frank Graves, who found that opposition supporters in the target ridings were more likely to report having received a deceptive call than either Conservatives or opposition supporters in other ridings.

Shrybman maintains the Graves study proves that the results were affected by voter suppression calls. The Conservatives paint Graves as a partisan opponent and attack the validity of his work, although he has received the backing of experts Michael Adams and Neil Nevitte.

Shrybman also has Annette Desgagne, a woman who worked for Responsive Marketing Group (RMG), the call centre company contracted by the Conservatives, who says she was alarmed at being asked to make what appeared to be deceptive calls. Her testimony was contradicted by that of RMG CEO Andrew Langhorne.

Last month, Elections Canada handed two batches of fresh evidence to Shrybman.

First was a series of internal emails that show the agency contacted the Conservatives during the campaign to express concern about reports of deceptive calls. Secondly, the agency gave Shrybman the first results of a national investigation into the calls.

Elections Canada handed over court documents detailing 87 complaints from voters in six provinces, most of whom report receiving fake poll-moving calls, some from live callers, others robocalls, like the “Pierre Poutine” call that sent hundreds of voters to the wrong polling station in Guelph.

The complaints so far outlined in the court documents concern only the calls received by voters who get their home phone service from Shaw and Videotron: only about 7.5 per cent of the total complaints. At least one more document — concerning complaints from those who get their phone service from Rogers — is likely to be released soon.

How much weight to give all the evidence will be decided by Justice Richard Mosley, who was appointed to the bench by former prime minister Jean Chrétien, and who previously put the government of Stephen Harper in a politically awkward position with a ruling that found Omar Khadr’s human rights had been violated by his detention at the U.S.-run detention facility at Guantanamo Bay.

For the Conservative Party, there’s more at stake than just the jobs of six MPs. If the court voids the results in a single riding, the finding could reignite the robocalls scandal and shake public confidence in the electoral system.

Even if the court rejects the bids for new votes in the six ridings, a finding of wrongdoing by the judge could still be politically damaging for the Tories, leading to renewed calls for a public inquiry.

But a clear win in the cases would give the Conservatives a new political line of defence against robocalls allegations as the Elections Canada investigations proceed.

Although the Federal Court case has no bearing on the ongoing investigations in Guelph and elsewhere — which could result in criminal charges — the Tories would likely try to blur this distinction in order to rebuff opposition attacks. The party used the same tactic in the in-and-out scandal over advertising purchases in the 2006 election before it eventually pleaded guilty to Elections Act violations.

For Hearst and Ferance, the fact that the case is proceeding is a cause for optimism.

Hearst said Thursday that she has no idea who called her husband and told him his polling station had moved, but she believes that someone tried to trick them and she is glad a court is considering the issue.

“We shouldn’t tolerate any efforts to mess around with the vote,” she said. “It’s just such a dangerous thing to get started on. If you accept the first infraction the next one becomes easier for them, for whoever wants to do that.

“Whoever did it, for whatever reason, it was wrong.”

© Copyright (c) The Ottawa Citizen

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