Public confidence damaged by misleading calls, court hears

The public's confidence in Canada's electoral system has been damaged by reports of misleading live phone calls and robocalls allegedly used to deter people from voting in the last federal election, a lawyer challenging six Conservative MPs told the Federal Court on Wednesday.

Steven Shrybman, who represents eight voters fighting to overturn the results in six ridings in which they live, wrapped up two days of arguments by imploring Judge Richard Mosley to find there was fraud committed in the ridings when a mysterious person or people arranged misleading and harassing phone calls to affect voter turnout.

Shrybman is trying to prove that Mosley must throw out the results of the election in those six ridings:

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

Shrybman also pointed out that his clients have less access to the information at the heart of the case than the other parties involved, the Conservative MPs, who are represented by the party's lawyer, and Elections Canada. Shrybman had to get the court to order the release of certain information, including records from a lower court about the criminal investigations Elections Canada is conducting into the calls.

Mosley asked Shrybman whether he thought the public confidence would be enhanced by a couple of criminal prosecutions. The judge clarified that was an off-the-cuff remark made after hearing hours of legal arguments.

'Abuse of process'

After a day and a half of Shrybman laying out his case, Mosley zeroed in on his evidence that the calls happened. Federal and Supreme Court judges often interject to ask questions of lawyers on both sides of cases they hear.

"Your case is to show it had an effect on the outcome," Mosley said. "I have to be persuaded that it actually made a difference. That's the crux of the matter."

Frank Graves, the head of EKOS Research, conducted a poll that found voters in those ridings were significantly more likely to have received misleading calls about polling stations during the 2011 federal election. That evidence is key to showing the calls were widespread and that they deterred people from casting ballots. All of the applicants voted despite the calls they say they received.

Shrybman argued that Hamilton had attacked the reputation and qualifications of Graves, an expert witness in the case, and presented evidence of Graves's good reputation, including a character reference from Michael Adams, a competing pollster.

The attack on Graves, and Conservative Party lawyer Arthur Hamilton's conduct, is "an abuse of process," Shrybman said. Not only that, the questioning by Hamilton and evidence presented in an attempt to disqualify him as an expert witness has damaged Graves's reputation, he said.

The Conservative MPs wanted Graves disqualified as an expert because of an alleged bias against the Conservative Party. They presented some of Graves's public statements, which Shrybman rebutted.

One statement was a tweet about a mass shooting in Norway, which Hamilton presented as proof Graves is anti-Conservative, but that Shrybman said was intended to refer to far-right neo-Nazis.

Another statement was a quote from a newspaper article in which Graves said he would advise the Liberal Party to start a culture war to gain public support.

Controversy over Twitter reporting

While Shrybman pointed to Hamilton's questioning on Monday as an example of the attack on Graves's reputation, Hamilton had his own concerns about the day's proceedings.

Hamilton said Graves, when asked to leave the courtroom on Monday as the judge and lawyers discussed his testimony, peeked on Twitter and could have seen what was being reported by journalists in the courtroom.

That sparked a debate over who was at fault: Graves for going online or the reporters, who Judge Richard Mosley said he expected to exercise common sense in their tweeting.

Shrybman seemed upset that any of the discussion between him, Hamilton and Mosley was reported while Graves left the room, despite the court remaining open to the public throughout.

Mosley said he wouldn't strike any of Graves's testimony, although he later interrupted Shrybman to ask Hamilton if he knew what had been tweeted when Graves was outside the courtroom.

Hamilton said his firm was attempting to get that information and would get back to Mosley.

Poll introduced as evidence

Earlier Wednesday, Shrybman presented Graves's polling information to the court.

Those who identified themselves in an earlier call as not supporting the Conservatives were far more likely to get a subsequent call about a change to their polling station, he said.

"It's not an artifact of chance," Shrybman said.

A "remarkable feature of these calls" is that they were dramatically more likely to be received by non-Conservative supporters, Shrybman said.

Graves also reported that the calls seemed to deter people from voting. Non-Conservative supporters who got misleading or harassing calls were between 0.8 per cent and 2.2 per cent less likely to vote, according to his research.

The poll was conducted for the eight voters by EKOS Research. The Council of Canadians, an organization that opposes most of the Conservative government's policies, is paying the legal bills for the voters in their challenge.

Hamilton has challenged the credibility of Graves over two donations under $240 to former Liberal leadership contestants Michael Ignatieff and Bob Rae. Graves said he donated more money to a Conservative candidate the same year.

The Conservative MPs responding to the challenge have provided evidence from an expert who challenged Graves's methods, including that the poll was done by phone, with respondents keying in their answers to multiple choice questions. Shrybman maintains that was done to preserve the secrecy of the vote.

No 'loaded gun'

On Tuesday, Shrybman said there is "no loaded gun" pointing to election fraud, and conceded that none of the eight voters he represents failed to cast a ballot in the last election.

But, he argued, court documents describing a number of Elections Canada investigations, an affidavit from a call centre staffer who says she made misleading phone calls and polling data showing widespread suppression, are all consistent with his clients' assertion that misleading calls influenced the outcome of the election in their ridings.

Shrybman said the case does not allege wrongdoing by the Conservative Party or its officials, or a telephone marketing firm hired by the party to conduct election calls.

The court will hear also this week from the lawyer representing the responding MPs who risk losing their seats, as well as Chief Electoral Officer Marc Mayrand.

A lawyer for the NDP candidates who lost in the ridings will be the first to present on Thursday morning, followed by Hamilton on behalf of the Conservatives. A lawyer for Elections Canada will go last. The court will extend the hearings until Monday.

Mobile users, follow Laura Payton's live blog here.