Election result challenge lacks proof, Tory lawyer says

An application challenging the 2011 federal election result in seven ridings was filed too late and lacks proof, a Conservative Party lawyer told the Federal Court Monday in an attempt to dismiss the case.

The court heard a motion filed on behalf of the seven MPs elected in those ridings to dismiss the application challenging their May 2, 2011 wins.

The applicants, backed by the Council of Canadians, want the Federal Court to overturn the results because of allegations of misleading phone calls that attempted to send voters to the wrong polling stations.

But the MPs want the case dismissed before it goes to a full hearing.

Conservative Party lawyer Arthur Hamilton told the court Monday morning that the applications are frivolous and vexatious, "deficiently thin," fatally flawed and shouldn't be allowed to proceed. He said the applicants haven't presented any evidence that people didn't vote as a result of the phone calls, and contended the case has no chance of success.

Citing case law, Hamilton argued that voting irregularities must exceed the winning candidate's plurality — the number of votes by which they won — in order for results to be thrown out, and he added that the onus is on the applicants to prove that.

There is nothing in the applications to show widespread voter suppression within the individual ridings being challenged, Hamilton said.

"All we are stuck with is the personal stories of the applicants and that is not good enough," he said.

Hamilton also argued the applicants didn't file in time, saying a 30-day time limit on applications started from the moment they got the phone calls.

Fraud not suspected until media reports: lawyer

A lawyer for the voters who brought the challenge say the clock didn't start until news broke of the misleading calls last February.

The case was heard by a prothonotary, a full judicial officer who has many of the powers and functions of Federal Court judges. Prothonotaries handle case management, mediation and practice motions.

Garry Neil, head of the Council of Canadians, said the deadline for the challenge has to fall after the media reports began.

"Not only is it when you become aware, it's when you become aware of the fraudulent activity that affected the outcome of the election," he said.

The people who filed the challenges initially thought the calls were bureaucratic mix-ups of some kind and didn't suspect they affected the election result until months later, when they started seeing news reports of more widespread calls, Neil said.

He argued the bar should be low to prove voter suppression and have the election results overturned, despite the risk of disenfranchising voters who successfully cast their ballots.

"We have here an unprecedented case. We're not talking about clerical irregularities. We're talking about a campaign of fraudulent calls to Canadians, which had the impact of suppressing the vote. And we think the bar should be set pretty low for [proving] that.

"As the prothonotary noted, how do you assess the impact of not voting? That's a different test."

Debate over polling evidence 

Steven Shrybman, the lawyer for the applicants, said the Council of Canadians hired Ekos Research Associates to determine whether voter suppression techniques were used to influence the election results in those seven ridings.

The poll results suggested voters in those ridings were more likely to get misleading calls claiming their polling stations had changed. The poll found 3.8 per cent of those surveyed in the subject ridings got misleading calls, while 2.2 per cent in 106 ridings reported fraudulent calls.

That difference is statistically significant, Ekos says.

The results within the seven ridings varied greatly.

Those who had already answered questions about which candidate they would vote for were almost twice as likely to receive a call that their polling station had changed, the poll found, with 34 per cent who identified their voting intention reporting polling station calls versus 18 per cent who wouldn't say for whom they planned to vote.

The survey was conducted April 13 to 19, 2012, using random digit dialing. Ekos surveyed 3,297 adults across the ridings under dispute and polled 1,500 Canadians in comparison ridings. The margin of error for the total number of people surveyed is plus or minus 1.7 per cent, 19 times out of 20, but is between 4.0 per cent and 5.6 per cent, 19 times out of 20 when the results are divided by riding.

Hamilton said that wasn't good enough when the applicants offered no other testimonials about the calls, and most of their own applications said they weren't prevented from voting.

He equated it to actual voters being trumped by social science evidence, arguing the Council of Canadians was referring to mythical voters who may have had their votes interefered with.

The applicants are challenging the election results in the following ridings:

• Don Valley East in Ontario, won by Conservative MP Joe Daniel by 870 votes.
• Nipissing-Timiskaming in Ontario, won by Conservative MP Jay Aspin by 18 votes.
• Saskatoon-Rosetown-Biggar in Saskatchewan, won by Conservative Kelly Block by 538 votes.
• Vancouver Island North in B.C., won by Conservative John Duncan by 1,827 votes.
• Winnipeg South Centre in Manitoba, won by Conservative MP Joyce Bateman by 722 votes.
• Elmwood-Transcona in Manitoba, won by Conservative MP Lawrence Toet by 300 votes.
• Yukon won by Conservative Ryan Leef by 132 votes.

Arguments concluded in the early afternoon and the prothonotary, Martha Milczynski, reserved her decision.

It's not known when the decision will be released, but the case is expected to be fast-tracked. The parties have a case conference later this week to discuss another motion by the Conservative MPs and to set possible dates in case the application proceeds.

Laura Payton's tweets from the courtroom appear below.