Saturday, May 25, 2013

"Robocall" Judgment - A Victory For The Conservative Party?

Conservative spokespeople have been making the rounds claiming the decision in the "robocall" vote suppression case vindicated them and was a clear victory for the Conservatives. (Actually, the calls were both live and recorded, so "robocall" is a bit of a misnomer.) 

While the case ultimately decided that the election results should not be overturned, it was hardly the unsullied victory the Conservatives want Canadians to believe.

First of all, in his decision released May 23, 2013, Federal Court Mr. Justice Mosley made a finding that "it has been established that misleading calls about the locations of polling stations were made to electors in ridings across the country, including the subject ridings, and that the purpose of those calls was to suppress the votes of electors who had indicated their voting preference in response to earlier voter identification calls." [p.88] 

He also points out that the calls "appear to have been targetted towards voters who had previously expressed a preference for an opposition party (or anyone other than the government party)..." [p. 92]  That statement alone makes it clear who was the only group supposed to benefit from the calls - the Conservative Party.

This, the court determined, was fraud: "I find that the threshold to establish that fraud occurred has been met by the applicants." [p. 88] 

Mr. Justice Mosley also determined 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." [p. 88]

Over a year ago I wrote about the CIMS database and the collection of non-supporter voter information and how this could only have come from Conservative campaign canvass information collection.

The Conservative claim to victory in the current case is in several findings by the judge. First, the judge said "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." [p. 88]

The Conservatives are portraying this to mean that they have been cleared of any involvement in the voter-suppression calls. In fact, it means the "elaborate efforts to conceal the identity of those accessing the database and arranging for the calls to be made" successfully left no evidence of who made them. It's not exoneration - it is merely the absence of evidence. 

The Conservatives would like you to think that a finding of "no evidence" is the same as innocence. It isn't, especially when read together with the previous finding that "the evidence points to elaborate efforts to conceal the identity" of the perpetrators. The judge is saying we don't know who did it because they covered their tracks well.

After finding the conduct of person or persons unknown using the super-secure Conservative CIMS database to direct the voter suppression calls was fraud, Mr. Justice Mosley found that there was no available evidence (mostly, he says, due to the nature of the crime) that the voter suppression campaign had an impact on the election's outcome. He called it "thin and widespread". For that reason - essentially because it could not be proved that it was effective, although the applicants introduced polling data that suggested it could have been - he declined to overturn the election results.

That is a victory for the sitting Conservative MPs, if not for the integrity of our electoral process - something Mr. Justice Mosley expresses concern for and notes is the subject of an ongoing investigation.

Mr. Justice Mosley also affirms, by denying the Conservative motions to dismiss the case due to delay or because the Council of Canadians was partially funding the litigation ("champerty"), that the court will generously uphold the right of citizens to defend the integrity of our fundamental right to expect free, fair and clean elections regardless of technical arguments. [pp.44-48]

However, Mr. Justice Mosley kept his harshest comments about the conduct of the case by the Conservative Party of Canada and the respondent Conservative MPs for the end, when he made his ruling on costs.


The costs award and the reasons are nothing less than a public, pants-down spanking of the Conservatives and their counsel from a normally very reserved Federal Court.

In determining who should pay the costs of the case, the judge reviewed the conduct of the parties. He used the strongest judicial language to express his extreme displeasure with the Conservative respondents' conduct. It is worth looking at those paragraphs in whole:

[261] 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.

[262] 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.

[263] 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. 

As to the costs of the case itself - who pays for the long and costly legal proceedings - the judge made his displeasure with the Conservative MPs and Conservative Party keenly felt.

He wrote: 

[260] I am mindful of the fact that in this instance the applicants have received guarantees of indemnification by a non-governmental organization which has been raising funds for that purpose. But it is also apparent that the respondent MPs are supported by the resources of the party to which they belong, resources which are underwritten by taxpayers. 

Justice Mosley begins by awarding the Applicants their costs for the numerous and time consuming pre-trial motions:

"The applicants are, in my view, entitled to be awarded costs on each of the pre-hearing motions in which they have been successful on a solicitor and client basis to be paid jointly and severally by the respondent MPs. This applies also to the champerty motion and the motion to exclude the Graves evidence which was brought initially in relation to the Don Valley East application and then deemed to apply to each of the other applications." [p. 94]

These motions likely make up the bulk of the time and cost of the action. This is where the big money in legal fees probably is. Most importantly, the judge awards these costs on a scale called "solicitor and client". That means actual costs paid by the applicants to their lawyers, which is the most expensive and punitive scale available. Usually costs are awarded on a lesser "party and party scale". 

Almost always costs go to the winner of a case, but not this time. Mr. Justice Mosley explains that there is a public interest involved, but he also makes it abundantly clear he was penalizing the Conservatives with costs for their combative and obstructionist conduct of the case.

On the respondent MPs' costs, he says: "Apart from the motion costs, and with the above considerations in mind, I am inclined to order a modest fixed amount for the costs of the hearing." He emphasizes the word "modest", as in, don't expect much. No soup for you.

As for any other respondents who opposed the application, the judge orders them to pay their own costs.  

So, a victory for the Conservatives? Yes. Their MPs get to keep their seats, and in the end that's all they care about.   

But we have a legal finding that the 2011 General Election was in fact marred by fraud; that the source of the fraud was likely the Conservative Party's CIMS; that whomever committed the fraud went to great lengths to cover their tracks; and that the Conservative Party and its representatives will go to great lengths to "block these proceedings by any means" and "derail" justice.  

So, a victory? Only if you don't count a judicial finding of election fraud, a scathing indictment of the Conservatives from the Federal Court that reveals their low opinion of justice and democracy, and the way they do business.  

Read the complete 95-page judgment here: