Elections threatened by robocalls case
Lawyer warns of fallout ahead of court decision
Except in extreme situations, the will of voters who cast ballots must take precedence in court challenges of election results, says the lawyer representing six Conservative MPs facing an attempt to throw out the results of the 2011 election.
Arthur Hamilton argued on Thursday that allowing a wide latitude for challenging elections in court would open up every vote to potential litigation.
“Election night, when the votes are counted, has to be about who will take the seat in parliament,” he said. “It can’t be about who will be the applicants and who will be the respondents.”
Hamilton warned that, should the legal challenge based on allegedly misleading phone calls succeed, the “margin of litigation” would be extended and lead to constant lawsuits over election results.
This would effectively “let a bunch of lawyers take those results and start lawyering up cases, poking and prodding.”
Hamilton cited a recent Supreme Court of Canada decision that tossed out a court challenge of the 2011 election of Etobicoke-Centre Conservative MP Ted Opitz.
“The clear thrust of Opitz is we still want the voters to speak except in the most extreme sets of circumstances,” Hamilton told the court.
He also referred by example to litigation brought by the Marijuana Party candidate in Guelph, Ont., who launched a challenge of the election of Liberal Frank Valeriote, the clear winner by more than 6,000 votes, over a robocall that didn’t identify Valeriote’s campaign as the source.
The Federal Court is hearing the applications brought from the six ridings by eight voters, who claim they received either live calls or pre-recorded robocalls intended to suppress non-Conservative votes. They want the court to set aside the results of these votes based on these allegedly fraudulent calls.
In oral arguments, Hamilton zeroed in on the fact that none of the applicants failed to cast a vote in the May 2, 2011, election, nor was any other voter apparently denied franchise.
“There is no identification of even one qualified voter who was prevented from voting,” Hamilton told the court.
Judge Richard Mosley asked Hamilton if there wasn’t a danger of “emboldening” those who might commit mischief during an election if the courts are not involved in these kinds of cases.
Hamilton said that Canadian voters are highly intuitive and take their franchise seriously.
“That’s why some of these hamhanded attempts at vote suppression don’t work,” he said, referring to the Pierre Poutine call that sent hundreds of voters to the wrong polling station on election day in Guelph.
Hamilton also argued that the applications for new elections were filed too late. The Elections Act allows for a challenge within 30 days of “the day on which the applicant first knew or should have known of the occurrence of the alleged irregularity, fraud, corrupt practice or illegal practice.”
The applicants argue that they didn’t learn of the significance of the calls they received until after media reports in February and March.
Hamilton argued that the court ought to dismiss the applications because the act must rely on an objective standard, not the subjective belief of voters.
The evidence shows that operators calling voters during the last three days of the election only called Conservative supporters, said Thomas Barlow, the lawyer for Responsive Marketing Group, which did calls for the party.
Barlow reviewed the affidavit of Annette Desgagne, a former Thunder Bay RMG employee, who became concerned that she was making calls with misleading information during the campaign.
RMG has produced 18 recordings of calls Desgagne made to voters in the six ridings in question, and the script RMG says she was using. Transcripts of those calls contradict her assertion that she was instructed to not identify her as calling on behalf of the party, Barlow said.
Lawyers for the Conservative MPs sought to convince the judge to discount the evidence presented by the applicants.
Steven Shrybman, the lawyer for eight voters who want the Federal Court to overturn the election results in six ridings, had previously argued that the judge ought to consider the evidence because it establishes a pattern of voter suppression.