The applicants in the “robocalls” election challenge of 2011 election results in six ridings have not presented evidence of specific individuals who were prevented from voting by deceptive poll-moving calls.
But if the judge hearing the case agrees with Elections Canada’s reading of the law, he could overturn the results in any of six ridings at issue if he believes that fraud occurred “on the balance of probabilities,” an easier standard of proof than “beyond a reasonable doubt,” the standard required in criminal cases.
Lawyer Barbara McIsaac made the presentation on behalf of Marc Mayrand, the chief electoral officer, based on the Supreme Court’s decision in the unsuccessful recent challenge of the election of Conservative MP Ted Opitz.
If the judge finds that there was fraud in a given riding, and if a greater number of votes were suppressed than the margin of victory, the court should balance those considerations with the reality that overturning the result would disenfranchise those who did cast ballots in the election, McIsaac said.
Elections Canada is a “friend of the court,” not a party to the proceedings, and does not take a position on the evidence before the judge.
Previous Canadian election challenges have all hinged on ballots in the box that should not be there. The so-called “magic number test” applied in those cases would overturn results when the number of suspect ballots in the box was greater than the margin of victory.
In this case, McIsaac said, the court would have to apply a “reverse magic number test,” determining that there were more suppressed votes than the margin of victory.
In opening his case, Steven Shrybman, the lawyer for the applicants, acknowledged that he faced the tough challenge of showing that there were not ballots in the box that should be there.
The key evidence for missing votes is a survey conducted by EKOS pollster Frank Graves, which found evidence that some respondents were discouraged from voting by deceptive calls.
Lawyers for the Conservative MPs have spent much of the proceedings attacking that survey and Graves’ credibility. They argued on Friday that the survey cannot be trusted and wouldn’t meet Government of Canada standards for polling.
Because the stakes are so high (the applicants want byelections called) the study must be solid, said Ted Frankel, one of the lawyers acting for the six Conservatives elected in the ridings.
“Common sense says we can’t trust this survey” he said. “We would open the gates to election challenges by computerized poll.”
Graves’ poll used a technology called “interactive voice response,” in which a computer prompts the respondents to enter their answers on their telephone keypad.
Graves claims the survey conducted last April found a clear pattern of voter suppression aimed at non-Conservative supporters.
Frankel said the survey can’t be trusted because of serious methodological problems, including its failure to screen out those who can’t vote, including people under age 18 and non-Canadians.
He also said that the way the survey was configured, a respondent who repeatedly pressed the number 1 button on the phone keypad for each response would have indicated he or she didn’t vote because of a misleading call from the Conservative Party — the most damning set of responses.
The failure to include cell phones in the survey was another problem, Frankel said. He also criticized EKOS for not calling respondents back to verify their information.
The survey found that 39 of 2,900 respondents reported that they had been prevented from voting by deceptive telephone calls. Frankel said, though, that 20 of those respondents had first indicated that they had voted, giving contradictory answers.
Graves doubled his estimate of the number of people who didn’t vote because of “social desirability bias,” the tendency of respondents to give answers that make themselves look good. Frankel argued Graves can’t take that kind of liberty, given what’s at stake in this case.
Some of the questions were ambiguous or double-barrelled and may have confused respondents, Frankel added, and there was no way for respondents to reply that they didn’t know or couldn’t recall.
On Thursday, Frankel’s co-counsel, Arthur Hamilton, attempted to portray Graves as a political partisan who couldn’t be trusted to give unbiased evidence.
Hamilton argued that Graves’ past donations to the Liberal Party and his comments on TV and on Twitter made him unsuitable as an expert witness.
Hamilton referred to Graves’ comment on a CBC-TV panel suggesting that the Liberals consider starting a “culture war” to differentiate themselves from the Conservatives.
Judge Mosley was clearly annoyed when Hamilton tried to suggest Graves showed bias against conservatives in his tweet linking Norwegian mass murderer Anders Breivik to the extreme right. Mosley told Hamilton it was unfair to use the tweet against Graves.
Frankel and Hamilton’s critiques of Graves’ study rely on the expert opinion of Toronto market research professional Ruth Corbin. Corbin and Graves have exchanged a series of affidavits disputing the value of the survey.
On Thursday, Mosley said that he saw the evaluation of the survey by University of Toronto political scientist Neil Nevitte as a “voice of reason,” and questioned Corbin’s expertise in political polling.
Nevitte has filed an affidavit supporting Graves’ methods.
Hamilton argued Friday that Nevitte didn’t act independently from Graves when he assessed his methodology and his evidence should not be relied upon.
Hamilton also suggested that the court would be better off considering election challenges like this after the investigative process had concluded with a conviction.
Elections Canada has been investigating alleged voter suppression robocall targeting opposition supporters in Guelph since shortly after election day but has not laid charges. After news of that investigation became public in February, the agency received a wave of reports from across the country and launched a national investigation.
According to court documents, on August 7 an Elections Canada investigator contacted Hamilton seeking to set up interviews with Conservative campaign workers about the calls. As of Oct. 30, Hamilton had not arranged any interviews.
The party has declined to say whether he has since set them up, saying it doesn’t want to comment on an ongoing investigation.
Earlier in the day, Shrybman told the court that Graves had asked him to apologize for reading Twitter updates from reporters inside the courtroom in the middle of his testimony. The judge had asked Graves to step outside to allow lawyers to discuss a matter involving his testimony.
Original Article
Source: canada.com
Author: GLEN McGREGOR AND STEPHEN MAHER
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