Citizen Action Monitor

Don’t delay courts’ review of Robocall tainted election results argues Osgoode Hall law professor

Court reviews are the key. They must happen as soon as possible.

No 434 Posted by fw, March 12, 2012

“The robocall affair puts us at the brink of crisis in our electoral democracy. Yet there appears to be an effort to stifle public outrage, and resolve any doubts in favour of the government, at this still-early stage in the affair. This effort traces to the Harper government, unfortunately, but also to some media commentators.”Gus Van Harten, Osgoode Hall Law School professor

Professor Harten makes a compelling case for not “delaying the courts’ reviews of questionable results in individual ridings. Those court reviews are the key. They must happen as soon as possible to ensure public confidence in the electoral process. Applications to the courts can be made by any individually-affected voter.”

His article, Robocalls: It’s time to call in the courts, reposted below with two added subheadings and minor reformatting, appeared in TheSpec.com on March 7, 2012. Click on the linked title to read the original piece.

Robocalls: It’s time to call in the courts, by Gus Van Horten

Fraudulently affecting even one election result is a scandal; minimizing this affront to democracy is as bad or worse

The case for opposing an investigation (coming from Harper gov. and some media voices)

The robocall affair puts us at the brink of crisis in our electoral democracy. Yet there appears to be an effort to stifle public outrage, and resolve any doubts in favour of the government, at this still-early stage in the affair. This effort traces to the Harper government, unfortunately, but also to some media commentators. The fire brigade’s argument goes something like this:

  • One, there is no evidence that the Conservative Party took part in the robocall affair.
  • Two, there are few ridings in which Conservative victory is in doubt.
  • Three, in any event, the overall federal election result is beyond question.
Van Horten’s rebuttal and case for immediate court review of questionable election results

All of these points are inaccurate or misleading. They point to a lack of concern for the integrity of the democratic process.

First, it is much too early to judge how many ridings were affected, and to what extent, by the fraudulent telephone interventions in the voting process. These interventions — both robocalls and live calls — are now associated with Conservative Party agents based on a range of reported information, including from Conservative sources. The information includes, among other things, the content and targeting of the robocalls and live calls, the past connections of RackNine to the Conservatives, the resignation of Conservative operative Michael Sona, and publicly reported statements of Sona.

Second, the Conservative majority is very thin. In Ontario alone, there are at least six ridings in which a Conservative candidate won by less than 1,000 votes over a Liberal candidate. There are at least three others in Ontario where the same outcome turned on a margin of 1,000 to 2,000 votes. There are no doubt ridings with similar margins elsewhere in the country.

So, it is not possible to know how widely and deeply voting was tainted in individual ridings. Indeed, it is a massive task to investigate that question thoroughly. However, initial indications from the Elections Canada investigation (which focuses on Guelph only) and from media reports are very troubling. Thus, to suggest that what we know at present allows us to conclude that the overall election outcome was not affected is dubious and irresponsible.

Third, public confidence in the electoral process is sacrosanct. The safest course of action, and possibly the only option, to restore public confidence in the election is to hold by-elections in any riding where there is reason to think that the result could have been different, had the robocalls not taken place. The process to decide this question, riding by riding, must be based on evidence from eligible voters in the riding.

Ultimately, the decision whether to require by-elections is a matter for the courts. But the investigation behind the courts’ decision-making needs to be organized by a body that is independent of government and well-funded. If the government is not prepared to commit to such an investigation immediately, then the other parties should organize it themselves.

Fourth, the fact that the outcome in even one riding may have been determined by fraudulent activity is an absolute scandal, deserving of an independent investigation in itself. That the affair gets boiled down, by some commentators, to whether the outcome in the election overall would have changed (which of course we and they don’t know) suggests either moral bankruptcy or a lack of understanding of the importance of a voting process that has integrity.

Fifth, the next step is an independent and thorough inquiry into the whole affair. The inquiry can be carried out by Elections Canada, by the RCMP, or by a public inquiry with full coercive powers. If Elections Canada, one must ask whether the agency has sufficient resources. If the RCMP, one must ask whether focusing on a few individuals who may have committed crimes is enough, in the face of a potentially systemic problem. If a public inquiry, one must ask whether the government will appoint a judge who has an unquestionable reputation for independence from the government.

Importantly, none of these methods of inquiry is an excuse for delaying the courts’ reviews of questionable results in individual ridings. Those court reviews are the key. They must happen as soon as possible to ensure public confidence in the electoral process. Applications to the courts can be made by any individually-affected voter.

However, the judicial process depends on a fair investigation of the extent of fraudulent intervention in all of the ridings that went down to the wire. We need the courts to protect our democracy.

Gus Van Harten grew up in Burlington. He is a professor at Osgoode Hall Law School and worked previously on two public inquiries but comments in a personal capacity.

Troy Media/ troymedia.com

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