Proof standard debated in robocall case

OTTAWA – A judge can overturn the outcome of an election if he believes “at least one voter” in the riding did not vote as a result of electoral fraud, a lawyer for Elections Canada argued in Federal Court on Friday.

The applicants in the “robocalls” election challenge of 2011 election results in six ridings have not presented evidence of specific individuals who were prevented from voting by deceptive poll-moving calls.

But if the judge hearing the case agrees with Elections Canada’s reading of the law, he could overturn the results in any of six ridings at issue if he believes that fraud occurred “on the balance of probabilities,” an easier standard of proof than “beyond a reasonable doubt,” the standard required in criminal cases.

Lawyer Barbara McIsaac made the presentation on behalf of Marc Mayrand, the chief electoral officer, based on the Supreme Court’s decision in the unsuccessful recent challenge of the election of Conservative MP Ted Opitz.

If the judge finds that there was fraud in a given riding, and if a greater number of votes were suppressed than the margin of victory, the court should balance those considerations with the reality that overturning the result would disenfranchise those who did cast ballots in the election, McIsaac said.

Elections Canada is a “friend of the court,” not a party to the proceedings, and does not take a position on the evidence before the judge.

In this case, McIsaac said, the court would have to apply a “reverse magic number test,” determining that there were more suppressed votes than the margin of victory.