Left Leaning Council goes to court

If you've been paying attention to the news lately you could be forgiven for believing that there's an organization in this country called the Left-Leaning Council of Canadians.

If you’ve been paying attention to the news lately you could be forgiven for believing that there’s an organization in this country called the Left-Leaning Council of Canadians.

The council’s challenge of federal election results in six ridings came to trial this week, and it seems that nothing is more relevant to the case than the sinister tilt of the organization representing the plaintiffs. Apparently there is no need to remind readers of the fairly pronounced list to starboard of the other major player in the story, the Conservative Party of Canada.

The purpose of this battle between left and right is either to unmask the culprits who tried to subvert the 2011 general election, or to prevent that unmasking, depending on which side you’re following. The applicants are eight Canadians in six federal ridings, each won by a Conservative candidate in 2011, all by small margins.

During the election, each of the eight received a phone call purporting to be from Elections Canada, attempting to send them to the wrong polling station. Supported by the council, they allege that these calls were sufficiently widespread to call into question the results of the vote. Here in the Yukon, Ryan Leef won his seat by 132 votes – not a particularly small margin by Yukon standards, but small enough to be in question if there was in fact a campaign to suppress the vote.

Some of the facts in the case are out of the realm of debate. For sure, somebody put time, money, and effort into a campaign of prank calls designed to keep non-Conservative voters out of polling stations. Many of those who received the now notorious robocalls (though not all the calls were automated) say they had earlier identified themselves to Conservative canvassers as supporters of other parties. Elections Canada is investigating a similar pattern of events in Guelph, Ontario, where the misleading calls have been connected to a robocall company often used by the Conservatives, and from there back to the local Conservative campaign office.

Since the Guelph story broke in February, voters from all over the country have reported receiving the misdirecting phone calls. Lawyers for the council are in possession of Elections Canada documents detailing 87 such complaints deemed credible enough to be used in court. There is also evidence that, during the election, officials from Elections Canada contacted the Conservative Party to raise concerns about deceptive calls originating from its campaign.

The evidence is damning, and Elections Canada is conducting an investigation which ought to result in criminal charges, but it’s unlikely the council’s civil case would ever have come to court without the testimony of pollster Frank Graves. That’s because even if one party is convicted of conducting a criminal campaign of voter-suppression, the results can’t be overturned without proof that the campaign succeeded, and enough people were prevented from voting to affect the outcome of the election.

President of the polling firm Ekos, Graves conducted a poll which found that voters in the six ridings in question were significantly more likely to have received the misleading phone calls than those in other ridings. He also found that those who had identified themselves to the Conservatives as non-supporters were much more likely to receive the calls, and that on a statistical balance of probabilities the deception is likely to have skewed the election results.

Conservative Party lawyer Arthur Hamilton spent part of Tuesday trying to attack Graves’s credibility. This is a common tactic in court, but according to the council’s lawyer, Steven Shrybman, Hamilton went above and beyond the norm. “I can’t imagine a more egregious form of character assassination,” said Shrybman, complaining that his adversary had taken “almost an hour of this court’s time … to assail Mr. Graves’s integrity.”

If Shrybman had ever been a criminal lawyer he might be able to imagine a more egregious form of character assassination. It’s standard practice in sexual assault cases to attack the character of the complainant, almost always for much more than “almost an hour.” In many cases, after the defence lawyer is done attacking her character, a woman has to listen to the judge do the same. In one high-profile case here in the Yukon a judge tossed out a rape case in part because the accuser had sat on an exercise ball with her legs apart. (Try crossing your ankles on one of those things some day).

To be fair to Shrybman, the attack on Graves’s credibility did reach near exercise-ball-like levels of absurdity at times. Hamilton grilled the pollster on his firm’s donations to the Liberal Party, alleging anti-Conservative bias, and not backing down even after Graves pointed out that he donated a larger amount to the Conservatives. The whole line of questioning really went down the rabbit hole when the Tory lawyer pointed to one of Graves’s tweets critical of a neo-Nazi mass murderer in Norway as proof of the pollster’s anti-Conservatism. Did his employers really want him to make that association on their behalf?

As an MP, Leef has proven himself to be nothing more than a Harper yes-man. Even the Yukon’s former member, Liberal seat-filler Larry Bagnell, looks like a star by comparison. If a bi-election was held today it’s likely that the incumbent would come in a distant last. But let’s not get our hopes up. The burden of proof in cases of election fraud is heavy, as it should be. Unless there’s evidence that 133 Yukoners couldn’t find their polling stations, we’re probably stuck with what we’ve got. But only till next election.

Al Pope won the Ma Murray Award for Best Columnist in B.C./Yukon in 2010 and 2002.