Arthur Hamilton argued on Thursday that allowing a wide latitude for challenging elections in court would open up every vote to potential litigation.
“Election night, when the votes are counted, has to be about who will take the seat in parliament,” he said. “It can’t be about who will be the applicants and who will be the respondents.”
Hamilton warned that, should the legal challenge based on allegedly misleading phone calls succeed, the “margin of litigation” would be extended and lead to constant lawsuits over election results.
This would effectively “let a bunch of lawyers take those results and start lawyering up cases, poking and prodding.”
Hamilton cited a recent Supreme Court of Canada decision that tossed out a court challenge of the 2011 election of Etobicoke-Centre Conservative MP Ted Opitz.
“The clear thrust of Optiz is we still want the voters to speak except in the most extreme sets of circumstances,” Hamilton told the court.
He also referred by example to litigation brought by the Marijuana Party candidate in Guelph, who launched a challenge of the election of Liberal Frank Valeriote, the clear winner by more than 6,000 votes, over a robocall that didn’t identify Valeriote’s campaign as the source.
The Federal Court is hearing the applications brought by eight voters in the six ridings, who claim they received either live calls or pre-recorded robocalls intended to suppress non-Conservative votes. They want the court to set aside the results of these votes based on these allegedly fraudulent calls.
In oral arguments, Hamilton zeroed in on the fact that none of the applicants failed to cast a vote in the May 2, 2011, election, nor was any other voter apparently denied franchise.
“There is no identification of even one qualified voter who was prevented from voting,” Hamilton told the court.
Judge Richard Mosley asked Hamilton if there wasn’t a danger of “emboldening” those who might commit mischief during an election if the courts are not involved in these kinds of cases.
Hamilton said that Canadian voters are highly intuitive and take their franchise seriously.
“That’s why some of these ham-handed attempts at vote suppression don’t work,” he said, referring to the Pierre Poutine call that sent hundreds of voters to the wrong polling station on election day in Guelph.
Hamilton also argued at length that the applications for new elections were filed too late. The Elections Act allows for a challenge within 30 days of “the day on which the applicant first knew or should have known of the occurrence of the alleged irregularity, fraud, corrupt practice or illegal practice.”
The applicants argue that they didn’t learn of the significance of the calls they received until after media reports in February and March.
Hamilton pointed to campaign-period reports on the CBC and CTV web site, which are available nationally, and argued that if the voters were not aware of the point of the calls they ought to have been.
Hamilton argued that the court ought to dismiss the applications because the act must rely on an objective standard, not the subjective belief of voters.
The evidence shows that operators calling voters during the last three days of the election only called Conservative supporters, said Thomas Barlow, the lawyer for Responsive Marketing Group, which did calls for the party.
Barlow reviewed the affidavit of Annette Desgagne, a former Thunder Bay RMG employee, who became concerned that she was making calls with misleading information during the campaign.
RMG has produced 18 recordings of calls Desgagne made to voters in the six ridings in question, and the script RMG says she was using. Transcripts of those calls contradict her assertion that she was instructed to not identify her as calling on behalf of the party, Barlow said.
“There is no evidence in my submission and it is not the case that RMG called non-supporters knowingly, or indeed unknowingly,” said Barlow.
Lawyers for the Conservative MPs sought to convince the judge to discount the evidence presented by the applicants.
Lawyer Ted Frankel argued that 18 documents, amounting to hundreds of pages, from internal Elections Canada emails and reports from investigators looking into allegations of voter suppression, should not be admitted.
Frankel argued that the rules of evidence ought to prevent the judge from considering the evidence, since much of it is hearsay, meaning it comes from unknown third parties, who can’t be cross-examined.
Shrybman had previously argued that the judge ought to consider the evidence because it establishes a pattern of voter suppression. Frankel suggested that the complaints itemized in the documents might come from “disgruntled” voters, and should be dismissed.
Hamilton argued that the evidence at the heart of the case — a survey by EKOS pollster Frank Graves — should be dismissed because of what Hamilton asserts is an anti-Conservative bias from Graves.
Justice Richard Mosley interrupted Hamilton several times to express skepticism at his attacks on Graves, and to tell him that he sees the assessment of Graves’ study by political scientist Neil Nevitte as a “voice of reason.” Nevitte backed Graves’ methodology.
Earlier Thursday, the court heard arguments from lawyer James Duggan, who represents the losing NDP candidates.
Duggan tried to make a claim that the alleged calls amounted to a violation of the Charter of Rights and Freedoms, based on the premise that the Conservative Party now forms the government.
Judge Mosley shot that theory down quickly, saying that while Conservative MPs currently form government, the party is clearly not a government actor.
Original Article
Source: canada.com
Author: GLEN MCGREGOR AND STEPHEN MAHER
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