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McEwing v. Canada (Attorney General)

May 23, 2013

The Federal Court has found that a concerted voter suppression campaign occurred during the 2011 Federal Election and that the voter contact information used to carry it out likely came from the Conservative Party’s database.

The Federal Court has found that there was “a concerted campaign by persons who had access to a database of voter information maintained by a political party” to attempt to dissuade voters from casting ballots for their preferred candidates. That campaign involved telephone calls falsely claiming to be from Elections Canada in which voters were told that the locations of polling stations in their districts had been moved. These individuals had previously indicated in voter identification calls that they were not supporters of the Conservative Party of Canada (“CPC”).

The Court held that while “electoral fraud occurred during the 41st General Election”, the evidence did not establish that the fraud affected the outcomes in the subject ridings. Therefore it declined to overturn the election results in those ridings.

Contrary to the claims of some pundits following the release of the decision, the Federal Court did not “clear” or “vindicate” the CPC in the case. Indeed, the Court found that the information used to make the calls likely came from the CPC’s CIMS database:

I make no finding that the CPC, any CPC candidates, or RMG and RackNine Inc., were directly involved in the campaign to mislead voters. To require the applicants to identify the perpetrators of the misleading calls would impose an impossibly high standard of proof. I am satisfied, however, that the most likely source of the information used to make the misleading calls was the CIMS database maintained and controlled by the CPC, accessed for that purpose by a person or persons currently unknown to this Court. There is no evidence to indicate that the use of the CIMS database in this manner was approved or condoned by the CPC. Rather the evidence points to elaborate efforts to conceal the identity of those accessing the database and arranging for the calls to be made.

It is true that there was no evidence that this use of the CIMS database was approved by the CPC itself, or by any particular person. As the Court recognized, it would be unreasonable to expect the applicants to establish that. Nor did the Respondent MPs offer any evidence to assist the Court on the issue. However, the evidence did show that very few people have access to such databases. The evidence before the Court, which it accepted, was:

Access to a party’s central database is carefully controlled. The calls at issue in these proceedings are most likely to have been organized by a person or persons with: i) access to the central information system of a political party that included contact information about non-supporters; ii) the financial resources to contract voice and automated service providers to make such calls; and iii) the authority to make such decisions.

In another part of the decision, the Court expressed concern about the effect of the voter suppression efforts on public confidence in the electoral system:

Canadians have confidence in the integrity of our electoral procedures. The sanctity of the poll and the ballot box in this country is reflected in the frequent invitations Canada receives to provide independent observers to supervise foreign elections. There may have been isolated instances of electoral misbehaviour in the past but, as noted above, incidents of voter suppression of the nature discussed in these reasons have not been known in this country prior to the 41st General Election. For that reason, I don’t doubt that the confidence rightfully held by Canadians has been shaken by the disclosures of widespread fraudulent activities that have resulted from the Commissioner’s investigations and the complaints to Elections Canada.

In considering the issue of legal costs, the Court was scathing in its assessment of the way in which the CPC MPs had conducted the litigation:

These proceedings have had partisan overtones from the outset. That was particularly evident in the submissions of the respondent MPs. In reviewing the procedural history and the evidence and considering the arguments advanced by the parties at the hearing, it has seemed to me that the applicants sought to achieve and hold the high ground of promoting the integrity of the electoral process while the respondent MPs engaged in trench warfare in an effort to prevent this case from coming to a hearing on the merits.

Despite the obvious public interest in getting to the bottom of the allegations, the CPC made little effort to assist with the investigation at the outset despite early requests. I note that counsel for the CPC was informed while the election was taking place that the calls about polling station changes were improper. While it was begrudgingly conceded during oral argument that what occurred was “absolutely outrageous”, the record indicates that the stance taken by the respondent MPs from the outset was to block these proceedings by any means.

The preliminary stages were marked by numerous objections to the evidence adduced by the applicants. The respondent MPs sought to strike the applications on the ground that they were frivolous and vexatious, to have them dismissed as champertous and to require excessive security for costs, in transparent attempts to derail this case.

The Court held that the applicants were entitled to their legal costs in the various motions brought by the CPC MPs in their attempt to derail the case. The Court ordered the MPs to pay these costs on a solicitor-client basis, which is higher than the scale of a normal costs award.

As for the costs of the application itself, the Court indicated that it was inclined to award only “modest” costs to the MPs and invited the parties to attempt to agree on an amount, failing which the Court would determine the issue.

Click here to read the decision.

Lawyers

Steven Shrybman

Practice Areas

Public Interest Litigation