Federal Court won't remove MPs over election robocalls

The Federal Court didn't throw six MPs out of their seats over allegations of widespread vote suppression through automated robocalls in the 2011 federal election. But Judge Richard Mosley did find that fraud occurred, linked to the Conservative Party's database.

Judge finds that fraud occurred, linked to the Conservative Party's CIMS database

Voters backed by the Council of Canadians challenged the 2011 election victories by Conservative MPs, clockwise from top-left, Kelly Block, John Duncan, Jay Aspin, Joyce Bateman, Joe Daniel, Lawrence Toet and Ryan Leef. The challenge against Daniel was dropped Oct. 23. The Federal Court says it won't throw six MPs out of seats over allegations of widespread vote suppression through automated robocalls. (Conservative.ca/CBC)

The Federal Court says it won't throw six MPs out of their seats over allegations of widespread vote suppression through automated robocalls in the 2011 federal election.

A group of voters, backed by the Council of Canadians, challenged the MPs based on what the voters said was a pattern of voter harassment and misleading phone calls that sent some people to the wrong polling stations.

The voters who challenged the election results said it pointed to a co-ordinated campaign to suppress support for parties other than the Conservative Party.

Judge Richard Mosley didn't annul the election results, but he did find that fraud occurred in the election.

Six ridings

The six ridings where the election results were challenged are:

  • Nipissing-Timiskaming in Ontario
  • Elmwood-Transcona and Winnipeg South Centre in Manitoba
  • Saskatoon-Rosetown-Biggar
  • Vancouver Island North
  • Yukon

NDP candidate Nettie Wiebe lost to Conservative Kelly Block by less than 600 votes in the Saskatoon-Biggar-Rosetown riding. Wiebe says the implications of the judge's findings go beyond the 2011 election.

"I think what should be clear is that this isn't just about winning, losing. This is about the process because in the future it's the process that will have to be assured," Wiebe said.

"I'm satisfied that the judge was pretty clear that … there was fraud in the election."

"I am satisfied that [it] has been established that misleading calls about the locations of polling stations were made to electors in ridings across the country, including the subject ridings, and that the purpose of those calls was to suppress the votes of electors who had indicated their voting preference in response to earlier voter identification calls," Mosley wrote in the 100-page decision.

Mosley said he was not making a finding that the Conservative Party, its candidates or the suppliers providing live and automated robocalls were directly involved in "the campaign to mislead voters."

"I am satisfied, however, that the most likely source of the information used to make the misleading calls was the CIMS database maintained and controlled by the [Conservative Party of Canada], accessed for that purpose by a person or persons currently unknown to this court. 

"There is no evidence to indicate that the use of the CIMS database in this manner was approved or condoned by the CPC."

But, he added, if there had been any evidence a candidate or the party were involved, he "would not have hesitated… to annul the result."

Former Liberal MP Anita Neville lost the Winnipeg South Centre riding by just under 700 votes to Conservative Joyce Bateman.

"It's a disappointing decision in that he determined that it was not worthy of turning over the election results, but we feel vindicated that the fraud was acknowledged," said Neville.

"It underminded the credibility of the election," she said.

'We're not unhappy'

It wasn’t a total loss for the voters who brought the challenge, despite the election results being upheld.

"We’re not unhappy. We would be delighted if he had overturned results, but in the context we think it’s a very powerful decision," said Garry Neil, the executive director of the Council of Canadians.

A spokesman for the Conservative Party called the court case "a transparent attempt to overturn certified election results simply because this activist group didn't like them."

"There was no wrongdoing by the Conservative Party or any of the candidates or campaign teams targeted by these [court] applications and the court noted that not a single voter was produced to testify that they were prevented from voting due to alleged voter suppression," Fred DeLorey said in a statement.

The Council of Canadians said it is considering appealing to the Supreme Court and is consulting with the voters who acted as applicants in the case.

Former NDP MP Jim Maloway, who was defeated in the Elmwood-Transcona riding by about 300 votes and is now a provincial MLA, said he hoped the group would appeal even though the next election may arrive before such a definitive ruling would come down.

"Clearly the Conservative Party hierarchy was involved," he said. "But unless there is a forensic audit done [by the RCMP] I would think you're going to find that most of the [CIMS] databases have been erased or disappeared."

"The official party will claim that it was rogue elements who did this," he said, adding that in this case it seems unlikely to him since only a few people would have had access to the Conservative Party's system.

Maloway isn't convinced more enforcement and monitoring from Elections Canada will work. But if Canada had compulsory voting, he suggested, parties wouldn't have to spend vast amounts of time and money on efforts to encourage (or in this case, discourage) voters to go to the polls.

Voter suppression 'thinly scattered': judge

The judge said in the ruling that he had to keep in mind that annulling the election would disenfranchise every voter who cast a ballot and that a byelection isn’t a perfect solution. He said that lightly overturning a result would increase the likelihood of post-election legal fights in the future. Overturning an election result must be reserved for serious cases, he wrote.

Mosley said in his ruling the voters proved fraud had occurred in the 2011 election.

"The questions remaining are whether the fraud affected the results of the election, and if so, whether the court should exercise its discretion to annul the results in the subject ridings."

The voters had presented survey evidence to try to prove how widespread the fraud was, but because no one came forward to say they had been prevented from casting a ballot — not even the applicants in the case said they hadn’t voted because of the calls — the survey evidence alone wasn’t enough.

Mosley chastised the Conservatives for how they handled the case, which the party fought to derail through several motions before it made it in front of a judge. They also accused an expert witness of being biased because of some small donations he made to the Liberal Party.

"These proceedings have had partisan overtones from the outset," Mosley wrote.

"In reviewing the procedural history and the evidence and considering the arguments advanced by the parties at the hearing, it has seemed to me that the applicants sought to achieve and hold the high ground of promoting the integrity of the electoral process while the respondent MPs engaged in trench warfare in an effort to prevent this case from coming to a hearing on the merits."

Mosley also criticized the Conservative Party for making "little effort to assist with the investigation at the outset," despite the obvious public interest.

"While it was begrudgingly conceded during oral argument that what occurred was "absolutely outrageous," the record indicates that the stance taken by the respondent MPs from the outset was to block these proceedings by any means," he wrote.

Mosley wrote in the decision that the scale of the fraud has to be kept in perspective.

"The number and location of the complaints received by Elections Canada from across Canada indicates that the voter suppression effort was geographically widespread but, apart from Guelph, thinly scattered," he wrote.

Maude Barlow, the national chair of the Council of Canadians, admits the voters that her organization backed lost their attempt to force byelections in the six ridings.

"Whether we have the opportunity in those ridings to have elections, of course we’d have preferred that. But I think this is a very, very startling statement and decision. And I think it’s going to lead to a huge soul-searching in this country, and it certainly should lead to a soul-searching on behalf of the Conservative Party of Canada and the prime minister."

With files from Ryan Hicks