What we learned from the two judges who have studied the robocalls

On Wednesday, October 15th, 2014 in Householders

It is instructive to read the two court rulings back to back. One, Mr. Justice Mosley from the Federal Court was dealing with what is generally called the Council of Canadians case – an attempt to overturn the election of six conservative MPs where fraudulent calls had been made. He ruled in 2013. In the other, Mr. Justice Hearn of Ontario Court was dealing with criminal charges against Michael Sona, charged as the perpetrator of the calls in Guelph. The Sona decision came down in August 2014.

Guelph was not one of the six ridings in the Council of Canadians case. Thanks to these two separate matters we have findings tested through the Canadian evidentiary system in a court of law on seven ridings. (The six in the Council of Canadians case: Winnipeg South Centre, Saskatoon-Rosetown-Biggar, Elmwood-Transcona, Nipissing-Temiskaming, Vancouver Island North and Yukon, as well as Guelph.) While we know there were fraudulent calls in a much larger number of ridings, including Saanich-Gulf Islands, we have no legal rulings on the other cases.

Taking the two judgments together, we now know the following:

  1. “…that there was an orchestrated effort to suppress votes during the 2011 election campaign…” (Mr. Justice Mosley, in Council of Canadians case, Federal Court, McEwing v. Canada [2013] 4, R.C.F, at para 184.)
  2. In the six ridings in the Council of Canadians case and in the Sona case, the messages used in the fraudulent calls were identical. Mr. Justice Hearne described the message as: “The message indicated that due to a projected increase in voter turnout the polling station for the individual or individuals at the numbers called had been changed to another location in the City of Guelph. The message notes that location to be the Old Quebec Street Mall at 55 Wyndham Street North and provides a “hotline” telephone number. As well the message contains an apology for any inconvenience the change may cause. It is acknowledged that the message was false, that there had been no change in polling locations and the message was not from Elections Canada.” Mr. Justice Mosley’s judgment actually included the full text of the fake calls: “This is an automated message from Elections Canada. Due to a projected increase in poll turnout your voting location has been changed. Your new poll location is at … If you have any questions please phone our hotline at 1-800-434-4456. We apologize for any inconvenience this may cause.”
  3. Only one person has been charged for this criminal activity. Michael Sona was the Communications Director of the Conservative campaign in Guelph. He is in his early twenties. He has been found guilty, but Mr. Justice Hearn found him guilty only of “aiding and abetting.” The judge makes it clear he believes other people were involved and that it is not likely that Sona was the originator of the scheme. Sona had no connection at all with the six other ridings and no one has suggested he was responsible for those.
  4. Both judges reviewed how the fraud was carried out. Both examined the new technology of automated voice recordings launched to thousands of phone numbers. Both found that it would be relatively easy to set up accounts through firms offering the service. (Due to the criminal nature of the charges against Michael Sona, the ruling in his case goes into much more detail about the use of “burner” cell phones and pre-paid phone cards to avoid leaving a trail to whoever set up the accounts. In Guelph, the accounts were set up by someone using the false name of “Pierre Poutine.” The firm used in Guelph was called RackNine based in Alberta. It had numerous accounts with Conservative campaigns across Canada, including in Guelph.)

Both judges described the new technology that allows an incoming call to appear on the recipient’s phone caller I.D. as a name and number with no connection to the call. This is a process called “spoofing.” It made the calls appear to be from Elections Canada.

Both judges focused on the complex aspects of the crime: that whoever perpetrated it had to have knowledge of plausible, if inconvenient, locations for the bogus new polling locations, and, most significantly, that the calls had been made to voters who had previously indicated that they did not intend to vote Conservative.

Both judges, while taking pains to confirm they had no reason to suspect that the Conservative candidates in those ridings had knowledge of the scheme, concluded that the beneficiary of the robocalls fraudulently misdirecting voters was the Conservative Party.

Both judges identified the Conservative Party’s Constituency Information Management System (CIMS) as the source of the numbers used in the fraud. In fact, in the Michael Sona case, it was in the admitted facts of the case that the numbers came from CIMS database. It was also accepted as fact that Michael Sona had no access to CIMS.

In the Council of Canadians case, Mr. Justice Mosley found: “that there was an orchestrated effort to suppress votes during the 2011 election campaign by person or persons with access to the CIMS database.” (emphasis added)

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