May 272013
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Judge found 'an orchestrated effort to suppress votes'.

by John Baglow

A victory wrapped in a defeat, the judgement in the “Robocalls” case (which actually included live calls too) should be no cause of sorrow for the Council of Canadians, who brought the results of six closely-contested ridings to court hoping to see the results annulled.

Mr Justice Richard Mosely has ruled that the election results stand. But read on.

The CoC were unable to meet what is in fact a very high bar indeed to have an election result annulled. They met the “reverse magic number” threshold in four of the six ridings under review — the number of voters turned away by fraudulent phone calls was larger than the winning Conservative candidates’ margin of victory — but there were just too many “ifs.”

Justice Mosely was cautious, and prudent, and I find myself unable to disagree with his exercise of discretion in the matter.

The Justice ordered the government to pay COC's costs, citing a section that applies “where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties.”

But the Conservatives took gravely serious hits. It is now on the judicial record that a staggering 247 ridings were affected by complaints of fraud (paragraph 175). The judge confirms that there was a “deliberate attempt at voter suppression during the 2011 election.” (177)

And he’s just getting warmed up.

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. (183) [emphasis added]

…[T]here was an orchestrated effort to suppress votes during the 2011 election campaign by a person or persons with access to the CIMS (Conservative party) database. (184)

Here’s what he says about the Responsive Marketing Group (RMG), hired by the Conservative party to do election calling:

RMG, at the direction of the CPC, called hundreds of thousands of electors and read a message stating that: “Elections Canada has changed some voting locations at the last minute”. This included calls to electors in five of the six subject ridings. The information was factually wrong in that there had been only one polling station change in all of the six subject ridings in which RMG made such calls….It was therefore improper for the CPC and RMG to deliver the message they did, and this should not recur. (210-11) [emphasis added]

An unwarranted attack on the credibility of EKOS pollster Frank Graves (who found that the fraudulent calls did indeed have a suppressive effect) by Dr Ruth Corbin, a Conservative witness, was given little weight. (A representative of a competing firm, Environics gave strong testimony supportive of Graves.) Said Mosely:

I found Dr Corbin’s evidence to be overly argumentative. In her critique of Mr Graves… she appeared to enter the arena as an advocate. I agree with the respondent MPs that election annulment proceedings should not be a “battle of the experts” but it seems to me that they encouraged Dr Corbin to engage in just such a battle. (229)

I am satisfied that is [sic] 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. (244) [emphasis added]

The judge appears to be straining mightily against his juridical bonds when he goes on:

…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. (245) [emphasis added]

“You connect the dots” he seems to be saying. “I’m not allowed to, but come on….”

And then he talks about the judicial process itself. He does not mince words:

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. (261)

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…. 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. (262)

“…transparent attempts to derail this case.” (263) [emphases added]


And Mosely meant it. He proceeded to award costs for the flurry of Conservative motions to the Council of Canadians, on a solicitor and client basis. [264]

That’s serious stuff. Here’s what it means:

“Solicitor-client costs” (or “substantial indemnity costs,” as they are aptly called in Ontario) are cost awards that come closer to providing complete indemnification. They are awarded primarily “where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties.” [emphasis added]

Let that sink in for a bit, and then ask yourself seriously if this decision offers any aid and comfort whatsoever to the Conservative Party of Canada. From here, the applause from those ranks sounds hollow indeed. A court ruling nominally in their favour turns out to be, as my pal Canadian Cynic would put it, a brutal kick in the nads. And given what else has been happening over the past couple of weeks, it’s likely to leave them limping for the foreseeable future.

About John Baglow

John Baglow is a former Executive Vice-President of the Public Service Alliance of Canada. He is currently a writer, researcher and a consultant in the fields of public and social policy
You can read his blog at

© Copyright 2013 John Baglow, All rights Reserved. Written For:

  2 Responses to “Robocalls ruling a victory wrapped in defeat”

  1. ". . . Rather the evidence points to elaborate efforts to conceal the identity of those accessing the database and arranging for the calls to be made. "(245) 
    And just who would go to such 'elaborate efforts to conceal the identity', judge? Surely not the opposing candidates! 
    One cannot be a 'little bit pregnant ', Judge – go all the way – charge the Conservatives.
    Were they not belligerant and defiant? Call it contempt of court, or behaviour unbecoming of a ruling party, or just plain crooked.

  2. Let's reprint this article close to the next elections.

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