Robocalls Redux

As you can see from Monday’s press release, my letter to Elections Canada of May 19, 2011,  and from my motion for an emergency debate in the House, I take the threat to the right of Canadians to full, free and fair elections extremely seriously.  This is not, as the Prime Minister shamefully alleged in the House today, a “smear campaign” by the Liberals.

Anyone who cherishes democracy would be outraged by the facts that have been disclosed in media reports.  I am disturbed by the Prime Minister’s approach to the facts we now know.  He should call an inquiry.

One reason I am demanding an inquiry is that I do not think Elections Canada has the resources to undertake the investigation that is required.  And the RCMP, as well, do not have a good track record uncovering electoral fraud.

In 2008, robocalls into Saanich-Gulf Islands may well have allowed Conservative Gary Lunn to defeat a strong Liberal challenge by former Green Briony Penn.  The facts were well known.  The NDP candidate had withdrawn from the race, but at a point when it was too late for him to be replaced. His name was on the ballot, but he was not running. Robocalls the night before the election reached thousands of NDP supporters to urge them to get out and vote for the non-existent candidate. Both the RCMP and Elections Canada abandoned their investigations without finding the responsible parties.

With that brief factual background, I invite you to read the following blog from March 28, 2009 by Will Horter from BC Conservation Voters.

His last sentence is certainly prophetic: “If someone with subpoena powers doesn’t step up with some investigative muscle, I predict many more Karl Rove-like black-op operations in future elections.”


Friday, March 28 2009
Will Horter

Canadians have watched the chaos and dirty tricks happening in U.S. presidential elections with a sense of superiority – giving thanks that ‘it couldn’t happen here in Canada”. Don’t be so sure.

Elections Canada’s decision to drop their investigation into the fraudulent election eve robocalls in last October’s federal election in Saanich-Gulf Islands (SGI) bodes badly for the future of Canadian democracy.

Expect dirty tricks to increase in future elections.

The 2008 SGI election was full of dirty tricks. There were shady 3rd party organizations advertising for Lunn, all being created by Lunn co-campaign chair Bruce Hallsor, as well as fake robocalls on the eve of the vote purporting to be from the NDP riding association asking voters to vote for NDP candidate Julian West, who had withdrawn from the election. The Caller ID displayed on the fake robocalls indicated the fax number of Bill Graham, president of the NDP riding association who denies any involvement.

In closing their lax investigation, an Elections Canada official said they “found no one who had actually been influenced in their vote because of the purported telephone call.”
But Elections Canada and the RCMP seem to have overlooked other laws that could have been broken. The Criminal Code designates it an offence “to knowingly provide false information over the phone” (Section 372) or “to fraudulently impersonate another” (Section 403).

If it was known that the Elections Canada investigative threshold required “influenced voters” to be identified, I’m sure there are many people that would have helped them locate voters that felt duped by the calls.

Although Elections Canada claims they couldn’t find anyone that was influenced the numbers say otherwise. A poll taken just a few days before the election showed the NDP vote to be at less than 1% while on polling day the NDP pulled 3,667 votes (5.69% of the vote). The NDP upswing in voting support surpassed the 2,621 vote margin Mr. Lunn had over Liberal challenger Briony Penn perhaps winning Lunn the election.

But finding voters that had “actually been influenced in their vote” should not be the standard Elections Canada uses because that opens the door to parties (or their plausibly deniable supporters or low level campaign staff) to game the rules and force someone to prove after the fact that it influenced voters -a high hurdle.

The fact that that the Elections Canada’s letter to Paul McKivett, president of the Liberal riding association, also said Elections Canada “could not identify the source of the calls”, is also worrisome.

What kind of investigation did Elections Canada conduct?

How can thousands of calls come into a small geographic area from a call centre in the U.S. and Elections Canada can’t track it back to see who made the calls, who paid for them and who provided the list?

Is Elections Canada really saying that they can’t document these facts?  Is it that they don’t have the staff, the authority to reach beyond the border and compel answers and documents or the political will?

Elections Canada’s lax investigation in SGI should raise serious concerns about future elections in Canada. The signal being sent is that Elections Canada is not an aggressive investigator.

The signal being sent to political parties, particular the Conservative Party of Canada – which has a track record of playing up to, if not over, the lines – is that they can have someone associated, but deniable, hire a U.S. call centre to flood a riding with spoofed or faked robocalls and Elections Canada will do little to get to the bottom of it.

As Duff Conacher of Democracy Watch recently said, Elections Canada’s failure to fully investigate the SGI scam has ramifications for future elections, “If they are allowed to get away with this [in SGI] what happens if there’s a case where the candidate is still there? Someone could do bulk calling on behalf of whichever candidate you think will split your candidate’s vote.”

Given the one-on-one nature of robocalls it is hard for third parties that can’t subpoena phone records to identify the source or scale of the fraudulent calls. Only Elections Canada or the police can get to the bottom of these kinds of dirty tricks.

If someone with subpoena powers doesn’t step up with some investigative muscle I predict many more Karl Rove-like black-op operations in future elections.