OTTAWA—Election results can be overturned if only one voter in the riding was kept from the ballot box because of fraudulent activities and if there is evidence the fraud was on such a scale it eroded the integrity of the electoral process, says a lawyer representing Chief Electoral Officer Marc Mayrand.Barbara McIsaac, the lawyer representing Mr. Mayrand at Federal Court in a hearing into allegations of fraud in six federal electoral districts during the 2011 general election, argued that the word “fraud” as it appears in a section of the Canada Elections Act—allowing voters to legally challenge disputed elections over irregularities in the vote or more serious allegations—should be interpreted as an offence under civil legal standards, rather than criminal. That countered a position taken earlier by lawyers representing six MPs who could lose their House of Commons seats if the challenge by eight voters in the six ridings is successful.
Ms. McIsaac, who is intervening in the case but did not take sides in the legal action, said Mr. Mayrand’s position is that it must only be proven on a “balance of probabilities” rather than “beyond a reasonable doubt” that fraud occurred in any of the ridings.
The position could be seen as one that favours the electors challenging the results in the six ridings, as it would open the door to the possibility of an election being annulled even though the difference between a Conservative candidate who won and the second-place candidate was less than the margin of victory—a benchmark established in the section of the Elections Act allowing an election to be annulled over significant irregularities, fraud or corrupt or illegal practices.
Ms. McIsaac cited the recent Supreme Court of Canada ruling that upheld the 2011 election of Conservative MP Ted Opitz in the Toronto riding of Etobicoke Centre, after an Ontario Superior Court judge had annulled the results after a challenge by the former Liberal MP in the riding, Borys Wrzesnewskyj. The majority judgment in a split decision by the Supreme Court rejected some voting irregularities that the lower court judge confirmed, to the point that the number of vote irregularities was less than the razor-thin margin by which Mr. Opitz won the election.
By arguing election fraud would have more serious consequences for the electoral process than poll station irregularities involving voter registration or identification, Ms. McIsaac said if evidence of the fraud shows it to be on a wide scale, as long as there is also evidence the fraud prevented at least one voter from casting a ballot, that alone is enough for a judge to annul the results in the electoral district.
“If you accept evidence of a broadly based attempt at voter suppression, it may well influence your findings,” Ms. McIsaac told Justice Mosley, and called such a decision a “high burden” but one that is required if the evidence backs it up.
In her written record of argument on behalf of Mr. Mayrand, Ms. McIsaac said under that interpretation of the Supreme Court ruling and the Canada Elections Act, and what Parliament intended when it passed relevant sections of the act in 2000, anyone challenging election results on those grounds must prove, on a balance of probabilities, that electoral fraud occurred “and that at least one elector in his or her electoral district did not vote as a result of this electoral fraud.”
She argued Justice Richard Mosley has a “discretion” to annul the district’s election if the number of votes affected was greater than the margin of victory between the two candidates finishing in first and second place, or if the fraud that occurred was such that it could call into question the integrity of the electoral process.
The lawyer representing the six Conservative MPs whose elections are being challenged, Conservative Party general counsel Arthur Hamilton, has argued the allegations of fraud in the case should be proven under more stringent Criminal Code standards, requiring proof beyond a reasonable doubt that the offences were committed. The case centres on allegations that thousands of voters in the ridings received telephone calls purporting to be from Elections Canada and which attempted to steer the electors from their correct polling locations.
Mr. Hamilton argued against Ms. McIsaac’s position, saying other sections of the Elections Act suggest the word fraud, as it is used in the electoral context, is intended to cover serious offences that by their nature have a higher burden of proof from those making the allegations.
Mr. Hamilton pointed out to Justice Mosley earlier in the week that the eight voters who took up the challenge swore affidavits saying they received fraudulent calls but went out to vote.
Ms. McIsaac said the voters challenging the results don’t have to have fallen prey to the fraudulent calls, as long as there is evidence one or more voters was dissuaded from voting in their district, and other evidence about the seriousness of the fraud in that district or others is presented.
But none of the voters challenging the outcome in the six ridings has identified anyone who did not vote because of electoral fraud, and no voter in the ridings has come forth to say they were prevented from voting.
Although evidence of an Elections Canada investigation into widespread fraudulent telephone calls in the riding of Guelph, Ont., has been filed in the case, it cannot serve as evidence that is relevant to the six ridings. Two court affidavits from Elections Canada investigators probing wider complaints of fraudulent calls has also been entered, but it is only evidence other investigations are continuing, even though several of the complaints were from unidentified voters in three of the ridings in the Federal Court case: Vancouver Island North, B.C., Winnipeg South Centre, Man., and Elmwood-Transcona, Man.
The only other evidence lawyers for the voters have presented is a highly contested survey by Ekos pollster Frank Graves last April that probed the memories of several thousand voters over what happened to them during the campaign. A significant number, up to 34 per cent in the case of Liberal supporters, said they received calls from the Conservative Party early in the campaign, where the electors said they would not be voting Conservative, and then received calls on voting day purporting to be from Elections Canada and falsely telling them their voting locations had changed.
Mr. Hamilton and another lawyer on his team, Ted Frankel, spent much of the day Friday attacking Mr. Graves’ survey and citing expert evidence from a Conservative witness that challenged the validity of Mr. Graves’ poll, an automated system of telephone calls that began with the statement that the person who received the call stood to qualify for a $500 draw if they completed the survey.
Mr. Graves also got into trouble during the hearings for reading media tweets about exchanges within the courtroom, after he had been excused so Mr. Hamilton could discuss his cross-examination of Mr. Graves without Mr. Graves being present. Mr. Graves later apologized.
The other ridings under challenge are Saskatoon-Rosetown-Biggar, Sask., Yukon and Nipissing-Timiskaming, Ont.
Original Article
Source: hill times
Author: TIM NAUMETZ
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