Tory party lawyer says robocalls suit is frivolous
A man casts his vote in the 2011 federal election in Toronto on May 2, 2011. (Chris Young / THE CANADIAN PRESS)
The Canadian Press
Published Monday, December 10, 2012 5:33AM EST
Last Updated Monday, December 10, 2012 1:43PM EST
OTTAWA -- Lawyers for eight Canadians challenging the outcomes of the last federal election in six closely contested ridings are in Federal Court today arguing that the results should be overturned because of alleged voter-suppression tactics.
The eight voters, who are supported by the Council of Canadians, allege misleading or harassing phone calls in those ridings -- all won by Conservative candidates -- kept some people from voting and may have affected the results.
The Conservative party says it was not behind the fraudulent calls.
Party lawyer Arthur Hamilton argued the case is frivolous, saying the eight applicants are really just stand-ins for the left-leaning council.
"There are simply too many pieces of evidence which point to the fact that the Council of Canadians is the real applicant here," Hamilton told the court.
He told judge Richard Mosley the group stands to benefit financially and politically from the Federal Court case, regardless of the outcome. The council has solicited donations on its website to support its advocacy work on the back of the so-called robocalls affair. The lawyer said the group is using the case to build a database to use for future fundraising.
"There is a financial windfall to the Council of Canadians," Hamilton said. "They are raising money with respect to this application," .
The case began by dealing with Hamilton's "champerty and maintenance" motion. Champerty refers to the process by which a third party shares the proceeds of a lawsuit with a party to the suit, while maintenance refers to meddling in another person's lawsuit for personal gain.
This afternoon, the court is scheduled to hear from pollster Frank Graves, who prepared a report suggesting the fraudulent or misleading calls were widespread across Canada during the last federal election.
Over the course of the next five days of scheduled hearings, Tory lawyers will ask the court to dismiss each of the applications. They will argue the council has no bona fide witnesses who could testify that they actually were dissuaded from casting a ballot because of the calls.
None of the eight applicants actually failed to vote in the 2011 election as a result of the alleged tactics.
"It is increasingly apparent that this is a political activist campaign masquerading as a lawsuit -- a left-wing group is seeking to overturn democratic elections because it doesn't like how people voted," Conservative party spokesman Fred DeLorey said in an email.
But Garry Neil of the Council of Canadians dismissed the Conservative argument, saying lawyers for the applicants will only need to show the calls were made -- and therefore sullied the electoral process -- and not that those calls actually tricked anyone, for the results to be overturned.
"We're pretty confident that, first of all, we don't really have to demonstrate that," Neil said. "Because if we can simply demonstrate that fraudulent calling was really widespread, then the argument will be that that has compromised the very integrity of the electoral process and that should be the end of the story.
"If the integrity of the process is compromised, then the judge ought to just throw out the results and order that byelections be called."
The six ridings in question are Vancouver Island North; Yukon; Saskatoon-Rosetown-Biggar; Elmwood-Transcona and Winnipeg South Centre in Manitoba; and Nipissing-Timiskaming in Ontario.
Getting the election results overturned in those ridings would appear to be a tall order, if the Supreme Court's recent ruling in the case of Conservative MP Ted Opitz is any indication. The court upheld Opitz's close-fought 2011 election win in his Toronto riding despite proven procedural problems.
The Federal Court case is parallel to -- and unsupported by -- an ongoing Elections Canada investigation into fraudulent robocalls, stemming from complaints that have surfaced in 56 ridings across the country.
The agency's investigation has centred on the southwestern Ontario riding of Guelph, where a number of residents say they received automated phone calls from someone claiming to be from Elections Canada and directing them to a wrong or non-existent polling station.
Among the complaints contained in court documents are accounts of rude calls, calls in the middle of the night, swearing and even a mysterious message from North Dakota.
While the misleading phone calls appeared to target non-Conservative voters, the Conservative party insists it had no involvement in any such scheme and says it is assisting the investigation.
A shadowy operative known only as "Pierre Poutine" is believed to be behind the calls. However, Elections Canada has not yet been able to find that person.