Robocalls court challenge leads to charges of political bias

The first day of a legal challenge alleging widespread voter suppression in the last federal election turned into a case of politics and personalities Monday as lawyers dealt with a motion to dismiss and whether an expert witness had made inaccurate statements.

The Federal Court didn't hear arguments on the main issue, which is whether it should throw out the 2011 election result in six Conservative-won ridings. Eight voters have brought the case that challenges those wins, alleging a pattern of misleading phone calls that they say kept some Canadians from voting.

Instead, the first day of what's expected to be a week of court proceedings was devoted to whether the case should go ahead — the second motion to dismiss that the lawyer for the Conservative MPs has argued in court.

Conservative Party lawyer Arthur Hamilton also questioned the credibility of Ekos pollster Frank Graves, who provided polling research that Graves says shows the misleading phone calls were organized, widespread and went to non-Conservative Party supporters.

Most of the day, however, was spent on Hamilton's argument that the Council of Canadians, an organization that opposes many of the Conservative government's policies, is meddling in the case for its own profit, and that it has no legal standing to make the challenge itself. Challenges have to be brought by voters in their own ridings.

The Council of Canadians is paying Steven Shrybman, the lawyer representing the eight applicants.

Hamilton said the council sought out applicants to challenge the election wins and that it is using the case to raise money and create a database of supporters to mine for future donations.

Meddling and profiting

The applicants weren't considering legal action on their own and relied on the council to explain a pivotal 10-month lag between when they got allegedly misleading calls ahead of the May 2, 2011 election and when they brought the challenge, Hamilton says. That lag could have meant the challenge was too late under the election law's 30-day statute of limitations. The applicants argued they made the challenge within 30 days of the public becoming aware of how widespread the calls allegedly were.

The party's lawyer is using the legal argument of champerty and maintenance, a common-law doctrine aimed at frivolous suits, arguing the Council of Canadians is meddling in the case and profiting from the media attention.

"They are very much invested in anti-Conservative messaging," Hamilton said Monday morning.

Eroding the credibility and brand of Prime Minister Stephen Harper and the Conservative Party would be a victory for the Council of Canadians, Hamilton says.

Garry Neil, the executive director of the Council of Canadians, says the money the organization has raised is paying the legal fees for the case — about $300,000 so far. The organization's annual budget is $5 million.

"I wish it were a windfall for us," Neil told reporters during a break from the court proceedings. "We're furiously trying to raise money to pay the bills that are coming in in terms of the legal fund."

'Could be about payback'

Federal Court Judge Richard Mosley asked Hamilton whether average Canadians would have access to the court system without a backer like the Council of Canadians or whether only the wealthy would have access to justice. Hamilton says there were other ways to support the applicants and that the problem is as much that the council sought out the applicants instead of voters bringing a challenge independently.

Hamilton pointed to a tweet by Shrybman referring to federal government budget cuts that hit every department and agency where he said the $7.5-million cut from Elections Canada's budget was payback time, tagging the tweet "robocalls." He argued that it showed the organization wanted retribution through the Federal Court case.

Mosley asked how knowing this about the Council of Canadians and Shrybman helped him decide the case. It's not enough, he said, to meet the test of meddling.

Hamilton said he was offering another explanation for the case, instead of it being simply a legitimate enforcement of rights.

"This could be more about payback in Mr. Shrybman's eyes," Hamilton said.

But no matter how he decides the case, Mosley pointed out, the Council of Canadians won't profit from the ruling. The legal test for champerty and maintenance involves sharing in the winnings, he said.

Judge challenged Conservative lawyer

Hamilton says eroding the credibility of Harper and the Conservative Party is the currency at issue, "worth more than dollars," he said.

Mosley also challenged Hamilton's interpretation of a previous case fought on champerty and maintenance, saying the precedent isn't as he presented it.

Mosley challenged Hamilton again during his cross-examination of Graves. Graves had said he had a PhD, Hamilton said, when he doesn't, and donated to then-Liberal leadership contestants Michael Ignatieff and Bob Rae in 2006.

The judge had told Hamilton the cross-examination was to apply to a new affidavit by Graves, sworn on Dec. 3, 2012, and not to evidence provided prior to that.

"I think you're just flogging this horse to death," Mosley told Hamilton about the donations. "Let's get on with it."

Graves says the PhD was an error by Shrybman's law firm and that he had it corrected as soon as he saw it.

He says he had noted the donation to the Liberal Party, but wasn't aware that it went to Ignatieff and Rae.

"We didn't come up [in court] with the fact that in 2006 I made a $450 donation to Mr. Paul Benoit of the Conservative Party in [Ottawa-Vanier], which was counter-balanced and was larger than the donations that were made to Liberal candidates," Graves said.

One challenge dropped

The voters behind the challenge have already overcome a motion by the Conservative MPs to dismiss the case and a motion asking the court to require an extra $260,000 if the voters lose the challenge.

The case originally involved seven ridings, but a challenge in the Toronto riding of Don Valley East was dropped after the Conservatives found the voter actually lived in Don Valley West. Voters can only challenge the election result in their own riding.

A spokesman for the Conservative Party said Monday the party will "defend the results of these elections, where over 200,000 people voted and should have their vote respected."

"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," Fred DeLorey said in an emailed statement.

"We are asking the court to dismiss this transparent attempt to overturn these certified election results," he wrote.

The ridings being challenged are:

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

'Trying to mess with my right to vote'

The calls, both automated robocalls and live calls by operators in a call centre, allegedly directed voters to the wrong polling station.

Yukon voter Tom Parlee, who brought the challenge in his riding, says he hopes the court will decide there's enough evidence to hold a fresh election.

"I think it's important that somebody was trying to mess with my right to vote and I wanted to do something about it," Parlee told CBC News.

"I made a complaint with Elections Canada and it wasn't long before I was contacted to give the details of the call, what was said, and they've also called again, asking what the telephone number was," he said.

Documents filed in court in a separate case show Elections Canada is investigating misleading calls in at least 57 ridings. The agency has obtained phone records from Shaw and Vidéotron, and has requested records from Rogers.

Parlee says his wife got a call about three weeks before the election, and that person said the call was being made on behalf of the Conservative Party. The caller also asked for support.

"And my wife said, 'I'm not telling you how I vote and it's my own business. Thank you, goodbye.' And that sets up a pattern, as [we] found out that indeed there were a lot of calls like that and we became targets for the second call," he said.

The case is scheduled to be heard all week in Ottawa.