2011 Canadian federal election voter suppression scandal

A woman protesting the robocall scandal on Parliament Hill

The 2011 Canadian federal election robocall scandal (also known as Robogate and RoboCon) is a political scandal over misleading robocalls during the 2011 Canadian federal election. The independent agency Elections Canada and the Royal Canadian Mounted Police (RCMP) set up investigations into claims that robocalls were used in an attempt to dissuade voters from casting their ballot by telling them their poll stations had changed location. Further electoral law violations emerged as the evidence unfolded. Fraudulently representing an Elections Canada officer is an offense, as is representing oneself as being from another party. It is an offence under the Canada Elections Act to wilfully prevent or endeavour to prevent an elector from voting at an election. In the investigation in the riding of Guelph, Ontario, the Conservative Party failed to disclose to Elections Canada their spending on robocalls. Investigations are ongoing by Elections Canada, the Conservative Party of Canada and the RCMP. Expanded authority to deal with the robocall scandal was granted to Elections Canada by the House of Commons.

While the Elections Canada investigation initially focused on calls sent into Guelph amidst nationwide complaints, the investigation continued to expand in scope and to examine complaints in other ridings across the country. Court documents filed in mid-August, 2012, by the Commissioner of Elections Canada indicated that the elections watchdog had received reports of fraudulent or misleading calls in 234 of Canada's 308 ridings, recorded in all ten provinces and at least one territory. Elections Canada said that they would deliver a further report on the robocall scandal.

The allegations received widespread national media attention, and protests were organized to take place on March 11, 2012, across Canada in at least 27 cities. There was a second round of cross-Canada protests in at least 21 cities on March 31 and April 1, 2012 followed by a third round on April 29, 2012, termed the "National Day Against Election Fraud"

On May 4, 2012, it was discovered that a computer in the Guelph Conservative campaign office may have been used to make the illegal voter suppression calls in Guelph. On August 23, 2012, the Guelph Liberal riding association was fined $4,900 by the Canadian Radio-television and Telecommunications Commission for not identifying the source of robocalls they had made.

The calls

In February 2012 Postmedia News and the Ottawa Citizen reported that, during the 2011 Canadian federal election, misleading phone calls were made in at least 14 ridings, including Guelph, Ontario. Those calls directed voters to the wrong polling stations. The fraudulent automated calls displayed the phone number of a prepaid "burner phone", registered to a "Pierre Poutine" of "Separatist Street" in Joliette, Quebec. In addition, "Pierre Poutine" also used the alias "Pierre Jones" of pierres1630 at gmail.com, living at the fictional address of 54 Lajoie Nord in Joliette, Quebec.

The day before Election Day, "Pierre Poutine" sent out a series of messages using 2call.ca, an automated call company subsidiary of Edmonton-based Internet service provider RackNine, which directed voters to the wrong voting locations, falsely displaying as originating from Liberal candidate Frank Valeriote's campaign office. A Paypal account was used to pay for the calls to RackNine, and logged Poutine's credit card information. Both RackNine and Paypal turned over activity logs and transaction logs to investigators.

The investigation into fraudulent calls in Guelph revealed that thousands of automated calls were sent shortly after 10 AM on election day, telling people their voting location had changed. Complaints flooded in to Elections Canada, and a local returning officer called a Guelph area radio station at 10:53 AM and put out an advisory telling people to ignore the calls. Liberal MP Frank Valeriote received a call at his home notifying him that Liberal supporters were being targeted. It quickly emerged that there was an extensive campaign to discourage Liberal supporters. In under an hour, 100 voters arrived at the phony voting location. A signed affidavit indicates that 150 to 200 voters in Guelph showed up at a phony vote location at the Quebec Street Mall and some voters ripped up their voter identification cards in anger. He also noted that the voters who were targeted were voters who had been contacted by the Conservative Party and had also indicated they would not be voting Conservative. This has brought the opposition parties to allege that the calls were a campaign by the Conservative Party to intimidate supporters of other parties.

A transcript of the bogus fraudulent Robocall in Guelph, used during Election Day to impersonate an Elections Canada official: "This is an automated message from Elections Canada. Due to a projected increase in voter turnout, your poll location has been changed. Your new voting location is at the Old Quebec Street Mall, at 55 Wyndham Street North. Once again, your new poll location is at the Old Quebec Street Mall, at 55 Wyndham Street North. If you have any questions, please call our hotline at 1-800-443-4456. We apologize for any inconvenience this may cause. (French version recorded in another woman's voice follows.)"

Elections Canada emails have been revealed under Access to Information requests and have exposed internal communications on the matter. At 11:06 AM on election day election officer Anita Hawdur sent an e–mail to legal counsel Karen McNeil titled: "URGENT Conservative campaign office communication with electors." Hawdur reported that returning officers were also calling to ask about the calls. A further email was sent from legal counsel to Ronnie Molnar, the deputy Chief Electoral Officer who in turn emailed a senior director: “This one is far more serious. They have actually disrupted the voting process.”

By March 2, Elections Canada had received 31,000 complaints related to the robocall scandal. These complaints were not necessarily all reports from voters personally affected by the robocalls, but rather concern about the robocalls and their impact on Canadian democracy. On March 29, Elections Canada reported that they had received 800 reports from voters who had been called with misleading polling information. By mid-August, the number of reports had risen to 1,394 according to court documents filed by the Commissioner of Elections Canada. In the Guelph investigation alone, Elections Canada is aware of at least 7,600 robocalls directing voters to the wrong voting station, resulting in 68 formal complaints in the midst of intense local media coverage in Guelph on Election Day.

In response to the Guelph robocalls alone, 281 people called Pierre Poutine's disposable burner cellphone back. A voice broadcasting expert estimated that at a typical one percent call-back rate, the 281 call-backs indicated that many thousands of electors were affected, even considering that the nature of these calls would probably have resulted in a higher callback rate. An affidavit filed to secure a search warrant reported that 7,760 call attempts were made in Guelph.

Although originally being accused by some journalists and members of political parties of direct involvement and having conservative ties, the CEO of RackNine, Matt Meier, described his company as a "non-partisan firm, free from any party affiliation, bias, or designation", that has provided services to "political parties across the political spectrum", in spite of having a contract with the Conservative Party not to do business with any other party during Elections time, a standard requirement among all political parties. RackNine was used legitimately by a number of Conservative candidates, including Guelph CPC Candidate Marty Burke, and CPC leader Stephen Harper in Calgary Southwest. In November 2011 an Edmonton judge ordered RackNine to turn over all correspondence, emails and records of contact between the company and representatives of the Conservative Party general election campaign in Guelph, Ont., although Elections Canada made clear that "RackNine Inc. is not under investigation for an offence against this Act or any other Act of Parliament in respect other offences listed below".

Automated misdirection calls into other ridings across Canada

Elections Canada's investigation initially focused on complaints in Guelph, although reports of similar automated misdirection calls were received in some 200 ridings in every province across the country. The investigation has since expanded with interviews reported in other ridings. So far, media reports have published complaints of fraudulent robocalls or harassing live calls in 100 ridings. The calls have been reported from Yukon to Nipissing. In Yukon, the election was won by only 132 votes and a number of voters were sent to a phony voting location. Complaints brought to Conservative MP Ryan Leef's Facebook page were repeatedly ignored and deleted. Four ridings won by fewer than 1,000 votes. These included Nipissing—Timiskaming, Mississauga East—Cooksville, Winnipeg South Centre and Willowdale all of which experienced robo-calls. In three ridings of those ridings, robocalls directed voters to phony voting locations and in all four ridings complaints were filed.

Calls from live operators announcing false polling location changes

While the messages sent into Guelph using RackNine's services were all automated, there were also nationwide reports of calls made using live operators in addition to other reports of fraudulent robocalls across the country. In one widely reported version the caller identified themselves as representing Elections Canada and contained the message that the voter’s voting station had been moved “due to higher than anticipated voter turnout”. This call was seen as suspicious by some recipients due to the fact that some of them had either already voted at their original voting station, had used the same voting station for decades, or were party staffers.

Employees of Responsive Marketing Group Inc, a call centre with live operators located in Thunder Bay and used only by the Conservative Party, stated earlier in the 2011 campaign that they had made calls to identify recipients as either Conservative supporters or Liberal/NDP supporters. Depending on their stated allegiance, the recipients would later receive different scripted messages, such as a get-out-the-vote calls to identified Conservative supporters only. Some call centre workers became concerned that what they were doing was wrong and possibly illegal, and informed their supervisors and the RCMP. Their supervisors told them to stick to their script. The RCMP in Thunder Bay referred it to the RCMP in Ottawa. Cpl. Laurence Trottier referred it to Elections Canada. Elections Canada has a policy of not discussing current investigations and has refused to make any statements.

Harassing calls claiming to be from the Liberal Party

Some reports have centered on live and automated calls falsely claiming to be from the Liberal Party. Voters reported rude calls, racist calls mimicking ethnic accents, or very-early or late-night phone calls from live callers.

Jewish voters from ridings including Eglinton—Lawrence and York Centre reported receiving calls while observing the Sabbath, where the Liberal campaigns report that they did not send these calls. The campaigns explained that their campaigns are careful to respect religious observation on the Sabbath and definitely were not the source of these calls.

Falsely misrepresenting oneself as a political party is a crime under the Canada Elections Act.

Controversial robocalls not claiming to be from Elections Canada

In Peterborough, Ontario, Conservative Dean Del Mastro's campaign used robocalls. The calls did not identify the Tory campaign, but only used the name "Jeff", the name of Del Mastro's campaign manager, Jeff Westlake, and included a callback number. Telemarketing rules require a name or legal entity to be named in each call. The calls were made using Campaign Research, a firm used by 39 Conservative ridings during the 2011 election. Voters reported confusion following the endorsement message, as the Liberal Member of Provincial Parliament for Peterborough is also named Jeff, who subsequently issued a public statement to explain that he was not, in fact, endorsing Dean Del Mastro. Del Mastro is now the MP in charge of responding to the robo-call scandal. In June 2012 Del Mastro himself became the subject of an Elections Canada investigation for alleged election over-spending irregularities in the 2008 general election campaign.

The Liberal campaign in Guelph sent a controversial automated phone call, which did not identify the origin of the calls as the Liberal Party and attacked the Conservative candidate over his position on abortion. The calls did not misdirect voters regarding polling stations, or fraudulently represent themselves as another party or from Elections Canada, but gave a pseudonym. They said that in no way did the Conservative candidate Marty Burke support a woman's right to choose. The Liberals have said they have fully disclosed their spending related to the robo-calls to Elections Canada. They have released their information on the calls, including a pair of transcripts and voice recordings. Elections Canada has not indicated it has found anything requiring investigation.

In response to the investigation the Liberals have opened their books and challenged the Conservative Party to do the same. The Conservative Party has called for opposition parties to open their books, but has refused to do the same and release their own records.

Investigation

Elections Canada traced the origin of the automated calls to a disposable cellphone in the 450 area code of Joliette, Quebec, and issued a subpoena to the cellphone provider that produced a list of outgoing calls from the same number. One of the calls was found to be made to RackNine and on November 2011 the investigator served RackNine with a production order for records. Thus, the account holder associated with the bogus calls was quickly identified. The owner of RackNine said they had no idea what had transpired on election day until contacted by an Elections Canada investigator. Phone records show numbers connected with Guelph Conservative candidate Marty Burke and the Guelph Conservative riding association made a total of 31 calls to RackNine between March 26 and early May.

Investigators pointed out that whoever set up the account that sent out the fraudulent recorded messages tried hard to cover his electronic tracks by using a prepaid credit card to buy a prepaid cellphone, registering an account under a fake name and address and using a different fake name and address (Pierre Poutine of Separatist Street, Joliette, Quebec) to set up his cellphone. However the CEO of RackNine was eventually able to trace a specific IP address associated with the calls, which belongs to a private home. This revelation may have convinced a suspect to step forward and accept responsibility for the deceptive calls.

There have been concerns that the robo-call user had access to the Conservative Party national voter identification database, known as "CIMS". The information from this database has been used to target voters who identified themselves as voting against the Conservative Party. The CIMS database requires a secure login, and all of the activity on the database is logged. Since the voters who were targeted had spoken (on legitimate calls) with the Conservative Party and identified themselves as non-Conservative voters, the initiator of the robocalls ("Pierre Poutine") had been one of a limited number of Conservative Party staff or volunteers who had access to the voter database. The Conservative Party has not revealed the list of people who have access to this database. The Conservative party's investigator, Hamilton, has instructed party workers not to discuss the events and Elections Canada continues to investigate Conservative party headquarters.

Liberal Member of Parliament Marc Garneau has requested that the Canadian Radio-television and Telecommunications Commission (CRTC), which "can investigate unsolicited calling activity without court orders", be involved in the investigation.

On March 15, 2012, Elections Canada indicated that it would expand its investigation in response to additional complaints received. Tim Charbonneau, an Elections Canada investigator, joined Al Mathews, a former investigator for the RCMP. Al Mathews has been involved in the investigation of Rt. Hon. Brian Mulroney over the Airbus affair, as well as Privacy Commissioner Radwanski. Mathews, who is leading the RCMP probe into the robocalls and Charbonneau are now interviewing witnesses beyond those people who lived in the riding of Guelph, Ontario. Elections Canada has promised to provide a report to Parliament and the Chief Electoral Officer has requested Parliament invite him to address the parliamentary committee dealing with electoral matters. The Conservative Party's investigation is being conducted by Arthur Hamilton, a lead lawyer for the CPC, involved in the Gomery inquiry, and Helena Guergis and Rahim Jaffer's investigation.

Elections Canada followed up on at least two instances in which voters received robocalls supposedly from Elections Canada telling voters that their polling stations had been changed. In one instance, Eduardo Harari, a volunteer on Ken Dryden’s Liberal campaign in York Centre, stated that the reason he had been given in one of the calls for the polling station location change was due to the high number of people voting at his polling station. Harari also said that he had received 8 bilingual fake calls from Elections Canada telling him his polling station had changed; one on April 21 and the last on May 2. While Harari did report the calls to Elections Canada during and after the election, he was only contacted by Elections Canada after the second call. Charbonneau also interviewed Peggy Walsh Craig of Nipissing—Timiskaming, who said she received a robocall purportedly from Elections Canada. Craig also stated that she received voter-identification calls earlier in the campaign ostensibly from someone representing the Conservative party. Harari also reports having received a similar voter identification call and also from someone claiming to be from the Conservative party. Both Harari and Craig had indicated they would not be voting Conservative.

Further investigation by the Canadian Broadcasting Corporation (CBC) seemed to reveal a similar pattern to that experienced by Harari and Craig. Mark Mayrand, the chief electoral officer, indicated that he had received over 700 calls from Canadians who claim to have received deceptive calls purportedly from Elections Canada. Specifically, a pattern had emerged in which voters who had previously received phone calls from someone allegedly from the Conservative party and who had indicated that they would not be voting Conservative subsequently received a robocall directing them to an incorrect polling station. Tim McCoy, in the riding of Ottawa—Vanier was one such person who had received a robocall falsely from Elections Canada but only after having received a call from someone claiming to be from the Conservative Party and asking McCoy for his support in the upcoming election. McCoy reportedly declined to pledge his support for the Conservatives. Elections Canada does not contact voters by telephone, nor does it have telephone numbers for voters.

On March 28, 2012, Elections Canada indicated that they were closer to identifying the person behind the fraudulent robocalls in Guelph from records obtained from Rogers Communications under a production order. This follows a lead provided by Rack Nine who provided the Internet Protocol address used to both set-up and use to make the robocalls to constituents in Guelph. Elections Canada emphasized that Rack Nine is itself not under any suspicion and that Rack Nine cooperated completely in the investigation.

Pierre Poutine/Pierre Jones had also considered the idea of having calls made to Guelph constituents in the middle of the night spoofing the phone number of local Liberal party candidate Frank Valeriote. The intention was to anger and annoy recipients of these phone calls. The message itself had been recorded but was not transmitted.

An EKOS poll confirmed that non-Conservative voters were targeted by robocalls over Conservative voters, and voters in contested ridings were targeted over those in less contested ridings. The president of EKOS described the result as "highly statistically significant and we can say with confidence that this is not an artifact of chance." and that "These results strongly suggest that significant voter-suppression activities took place that were targeted at non-Conservative voters" The polls data confirmed that the number of voters affected could have affected the election results in a number of ridings. The EKOS poll aimed to answer 3 questions: to what extent may voter suppression techniques have been used to influence outcomes in the seven ridings; if voter suppression activities occurred, did they deliberately target electors who were supporters of particular political parties; and how effective were any suppression activities in discouraging those from casting a ballot who would otherwise have voted?

Meier also informed Elections Canada that "Pierre" had telephoned him on his "unlisted office number" and asked to speak with him personally when initially setting up the account. Allan Matthews, the Elections Canada investigator said, "Pierre referred to knowing someone in the Conservative Party", and, "In Meier's view, these facts mean someone must have given Pierre his contact information".

According to court filings, Elections Canada alleged that someone connected to the Conservative party campaign in Guelph had planned to deceive non-Conservative party supporters by making misleading and harassing telephone calls either directing voters to non-existent polling stations or by angering them by phoning them in the middle of the night.

Investigations are currently being conducted by Elections Canada, and the RCMP.

On May 4, 2012 a court filing by Elections Canada investigator Al Mathews indicated that the same IP address used to create the misleading calls on RackNine's service was used within four minutes by Conservative campaign staff member Andrew Prescott to also make legitimate RackNine calls. The IP address was assigned to a computer in the campaign headquarters of Guelph Conservative candidate Marty Burke. Prescott also downloaded a list of telephone numbers from the Conservative party's central database on April 30, the same day that Pierre Poutine account was created. Witnesses also recalled Conservative campaign worker Michael Sona had discussed his extensive plans for a disinformation campaign including sending identified non-Conservative voters to the wrong poll locations. Both Prescott and Sona have repeatedly denied any involvement in making the illegal robocalls, and no charges have been laid.

In August 2012 Elections Canada investigators indicated that they had hit a deadend in the Poutine investigation as the IP address they were tracing resolved to a Guelph residence apparently unconnected to the investigation, although the family living there were inadvertently running an open Wi-Fi connection. The residence is located across the city from the Burke campaign office and so access is unlikely to have been achieved from that office. As a result of the lack of progress in the Guelph investigation the RCMP was called in. Diane Benson, a spokeswoman for Elections Canada confirmed, "The office of the commissioner of Canada Elections has been assisted by the RCMP in its investigation in fraudulent calls in the 41st general election."

Also in August a more detailed analysis of Elections Canada court filings showed that Andrew Prescott and "Pierre Poutine" had used the same computer in the middle of the night of 1-2 May 2011, within minutes of each other, without signing out in between. Direct Leap Technologies CEO Simon Rowland explained the court filings: "on May 1 and 2, on three occasions Pierre Poutine logged into the Racknine web interface, logged out, and then logged into the Prescott account during the same browser session. This means Poutine logged out of his account, and then logged into the account used for the official calls without closing his browser tab. So it's not just what was reported so far -- that the Poutine account and Prescott account were accessed by the same IP within 4 minutes of each other during the middle of this night. It's also that on three separate occasions, someone with both the Prescott and Poutine account passwords used the same browser window to log into both accounts. Also, Poutine logged into Racknine through the proxy, closed his browser window, and 1 minute later logged in again, but this time forgot to go to the proxy website first, accidentally accessing the site directly. There were two session records for the Poutine account 1 minute apart: the first coming from the proxy, and the second coming from the Burke Campaign's office IP at 99.225.28.34." Rowland commented that this is "pretty great evidence, as it shows that someone had both passwords."

On October 31, 2012 accused Conservative staff Micheal Sona, whom anonymous reports had named as responsible for the Guelph voter suppression efforts, gave an extensive media interview on CBC's Power & Politics. Sona stated that had hoped that the Elections Canada investigation would have shown he was not involved by this point in time, but that given that there was no end in sight to the lengthy investigation, he felt he had to speak out. In the interview Sona denied involvement and indicated that he was "not going to take responsibility for something that I'm not responsible for." He added, "I think that there's some people that maybe had an interest in seeing me take the fall for it." During the interview he was asked who was involved and Sona stated "You've got to take a look at the options and just say, you know what, what is the more realistic option here? That some then-22-year-old guy managed to co-ordinate this entire massive scheme when he didn't even have access to the data to be able to do this, or the alternative — that this was much more co-ordinated or possibly that there were people that knew how to do this, that it was being done? ... I don't know for sure who it could have been, but I will say this. It's interesting that you had a bunch of people come out and point the finger at me, officially to Elections Canada, only after my name was leaked to the media by anonymous sources."

In mid-November 2012 a media Access to Information Act request resulted in the release of emails that showed that Elections Canada had already received many complaints from voters about calls directing them to the wrong polling place days before the election was actually held. Elections Canada identified that these calls originated with the Conservative Party and had contacted the party before election. Conservative Party officials admitted they were calling voters but denied they were misleading anyone. On the Sunday before the elections Elections Canada lawyer Michèle René de Cotret wrote that there was "some mischief purportedly done by representatives of the Conservative party calling people to tell them that the location of their polling site has been moved." In response to this new information NDP MP Charlie Angus stated, "the defence of the Conservatives is starting to crumble because now we have the information to access documents that reveal that Elections Canada was so concerned about voter fraud, it believed the Conservative Party was ‘running a scam’ and its investigators traced the calls back to a 1-800 number that went to the Conservative Party headquarters."

By mid-November 2012 the very slow pace of progress by Elections Canada in investigating the matter was causing concern among the Canadian public and the opposition parties. Interim Liberal leader Bob Rae said, "I don’t have an explanation as to why it would be taking Elections Canada so long to indicate where it’s going and how it’s proceeding with this investigation. I’m increasingly hearing concerns from Canadians that Elections Canada is not moving with the kind of clarity and the kind of speed that they would expect of an organization which is intended to ensure Canadians that the electoral process in Canada is fair."

Responsibility

Prime Minister Stephen Harper and the Conservative Party of Canada have denied any knowledge or involvement. Harper dismissed the allegations, calling them, "broad" and "sweeping". Then-NDP leader Nycole Turmel replied, "The Prime Minister must be tough on crime." A Conservative party staffer who worked for the Guelph riding campaign during the election and since then as an assistant for Conservative MP Eve Adams resigned soon after the scandal was reported, but has since come forward stating that he was not involved. The Conservatives in turn have blamed the calls upon multiple parties including the Liberal Party, Elections Canada, unnamed "third parties", an isolated incident, that they do not know who was responsible, and that they did misdirect voters, but accidentally.

In August 2012, Liberal Member of Parliament Frank Valeriote's riding association was fined $4,900 by the CRTC for illegal robocalls in the riding of Guelph, the riding where the robocalls took place). According to the CRTC, it "reached a compliance agreement with Valeriote’s riding association that included an admission of wrongdoing."

Other allegations of fraud

By early March, the scandal had spread to include more than just allegations of phone calls affecting the election outcome. On March 8, 2012, allegations were reported by the CBC that hundreds of unregistered voters who were not eligible to vote may have cast votes in the Toronto-area riding of Eglinton—Lawrence. At least 2,700 applications for late registration did not provide addresses or gave false or non-residential addresses.

In Etobicoke Centre, the Liberal candidate, Borys Wrzesnewskyj, alleged that 86 voters voted without valid ID and that a total of 181 people were improperly allowed to vote. The margin of victory in the riding was 26 votes for Conservative Ted Opitz. After being allowed to examine the election records a court challenge has been filed claiming that 181 votes are in dispute. Two voters gave addresses outside of the riding, while 32 others were listed in another riding. Five voters were found to have voted twice, illegally. One polling division Deputy Returning Officer and Polling Clerk vouched for several voters, which they knew was illegal from their Elections Canada training. Wrzesnewskyj's case under Part 20 of the Canada Elections Act started in Ontario Superior Court in Toronto on April 23, 2012. On May 2, 2012 Elections Canada confirmed in court that 51 registration certificates from three polls are missing and cannot be confirmed as ever having been completed. Registration certificates are used to qualify a non-registered voter to vote. On May 18, 2012 Justice Thomas Lederer set aside 79 ballots, ruled that the election result was invalid due to irregularities and ordered a by-election. In response to the court ruling in early June the Conservative Party commenced robocalls into the riding telling voters that Wrzesnewskyj had plotted to "overthrow" the riding and telling voters that they have had their votes "taken away" by the court's decision. Opitz appealed the case to the Supreme Court of Canada, who on 25 October 2012 upheld Opitz's election in a split 4-3 decision, in which Chief Justice Beverley McLachlin sided with the minority.

In a further scandal, Elections Canada has been called on to investigate the election finances of Associate Minister of National Defence Julian Fantino, after three former Conservative riding executives from Vaughan signed affidavits alleging impropriety in Fantino's 2010 and 2011 election campaigns. They allege there is a second, secret, illegal bank account containing $300,000. Elections Canada requires that candidates have only one bank account during an election, to facilitate tracking of election related spending. Penalties include up to $1,000 fine and one year in jail, or $5,000 and 5 years in jail. An account statement showed by that the account held $357,939.86 on January 18, 2011. Elections Canada investigations are conducted in private until charges are laid, and accordingly a spokesperson could not confirm if this is currently under investigation.

On March 24, 2012 the Vancouver Sun reported that the still-unidentified "Pierre Poutine" recorded another message purportedly in support of the Liberal Party candidate in the riding of Guelph, Ontario. This recorded message was intended to seem as if it came from Liberal Party candidate Frank Valeriote's office and carried the phone number of Valeriote's campaign. The message was never used, but was retained on Racknine's servers. Valeriote's office asserted that they never used the services of Racknine, the Edmonton based company from which the robocalls and fake Elections Canada calls had been made. Racknine owner Matt Meier stated that the company held an exclusive contract with the Conservative Party that precluded them working for other parties during the 2011 election.

John Fryer, an adjunct professor of the School of Public Administration at the University of Victoria, and a winner of the Order of Canada, claims that he attended a Conservative campaign school where it was taught that misleading phone calls to suppress voting were acceptable. The course was organized by Fraser McDonald of the Manning Centre and Richard Ciano and Nick Kouvalis, founding members of Campaign Research, the Conservative Party's voter identification and market research company in the election. Fryer alleges that in January of 2010 he attended a three day seminar on robocalling techniques that included question and answers directly discussing posing as a member of another party, and about making rude calls at inconvenient times as a strategy to get the supporter of another party to not go out and vote for their candidate. In a letter to the Globe and Mail, John Fryer said the voter suppression tactics described at this seminar were borrowed from those used by the Republican Party of the United States. In March 2012 Fryer issued a letter to Aaron Wudrick of Campaign Research stating "I am writing at your request to state that my comments which have been published recently were not intended to suggest that Mr Kouvalis, Mr Ciano or Campaign Research provided, discussed or made suggestions to participants regarding any illegal or unethical campaign or election tactics and apologize for any distress that this has been [sic] caused to your clients.".

On April 9, 2012 allegations were raised that two Front Porch Strategies American employees, company director PJ Wenzel and CEO Matthew Parker, had taken part in campaigning for Conservative candidates in contravention of the Canada Elections Act. The two had posted photos of themselves campaigning in Canada on Facebook.

Response

Elections Canada received 31,000 complaints during February 2012 and the first days of March 2012 alone. Most of the 31,000 contacts made to Elections Canada were the result of template letters and automated complaints from websites and various activist groups. Involvement of American activist groups such as Avaaz has worried many MPs, including NDP leader Nycole Turmel. The number of actionable complaints is about 700. These 700 complaints, not the 31 000 complaints sent in protest, are the ones under investigation by Elections Canada.

Public support for Harper's government in polling was 31% and 37% as of early March. The president of polling organization Ipsos-Reid, which conducted the poll, believes that the Conservatives have not yet suffered any real political damage over the controversy. Later polls, have shown a tremendous drop in support for the Conservatives, partly linked to toll enacted by the robocall scandal. A poll done on March 22 - April 2, by the Canadian Press Harris-Decima showed the Conservatives at 34% and the NDP at 32%. An Ipsos-Reid poll done April 3-5 showed the Conservatives tied with the NDP, at 34% and 33%. Ipsos-Reid attributed this to : weeks of enduring controversy, including the robocall scandal, an uninspiring budget and last week’s auditor general’s report on the troubled F-35 stealth-fighter program. A Leger Marketing poll put the NDP ahead of the Conservatives at 34% vs 32%.

Preston Manning, who was a key player in the formation of the current conservative movement in Canada, indicated that he found the robocall and voter suppression tactics "deplorable". In Ottawa for a gathering of other conservatives, Manning reiterated to reporters that the use of voter suppression tactics is a concern for all political parties. A second concern voiced by Manning is that the revelation of such voter suppression and the use of unethical robocalls means that the Conservatives, "have to worry and all the politicians have to worry about this declining respect — it’s bordering on contempt for political people...". Manning added that "If people don’t respect and don’t like politicians, they’re going to rate that government, no matter what it does, low," A former Chief Electoral Officer, Jean Pierre Kingsley, has called for a full disclosure of what happened and who did what.

According to an early March online survey, half of Canadians believe by-elections should be held as soon as possible in those ridings in which the misleading calls took place. The same survey also stated that 63% of Canadians believe the Conservatives are "likely to provide false and misleading information to voters through telephone calls with pre-recorded messages during a political campaign," while the numbers for the Liberal, NDP, and Green Parties are lower at 55%, 33%, and 32%, respectively.

In a poll conducted by Ipsos-Reid, 75% of respondents agreed that "a special, independent commission of inquiry with judicial powers should be established to find out what happened in the past election and make recommendations on our future election rules and structure." 68% of poll respondents want by-elections to be held in affected ridings.

Protests

Protests began on March 3, 2012, with approximately 250 people rallying in Vancouver, British Columbia. Protests have continued to spread across Canada, with a protest held in Ottawa on March 5 and with protests taking place across 27 Canadian cities on March 11, promoted by civil society groups including the Council of Canadians. The protest at Parliament Hill in Ottawa attracted between 40 and 100 people. A petition calling for an inquiry into the robocall scandal had 37,000 signatures as of March 3.

In Toronto a protest march, starting at Dundas Square, was held March 11 to demand by-elections and a public inquiry, attracting a crowd of 1,500 demonstrators. A Calgary protest attracted 100 protesters including the Raging Grannies, while 60 protestors in Edmonton shouted slogans and sang O Canada. In northern Canada, a handful protested in territorial capitals of Iqualuit and Yellowknife. Provincial capital of Prince Edward Island, Charlottetown, drew a protest of 60 at Province House. Windsor's protest drew a couple of dozen people. downtown Nanaimo had a small and passionate crowd demanding a public inquiry. In Halifax, 80 people protested and were joined by an NDP MP, and in Victoria hundreds demanded accountability. Peterborough, the riding of Dean Del Mastro, the Conservative MP responsible for responding to the robocall scandal also had around 100 protesters. In Regina's Victoria Park, protestors blindfolded a statue of Sir John A. Macdonald. North Bay residents held a protest at their MP's office, while twenty people in Kelowna held a two hour protest and asked drivers to honk their horns. Kamloops had ten residents protest. In Montreal, protesters, some of whom held up placards, held a demonstration and demanded a full public inquiry into the robocall election fraud scandal. Protests also took place in Winnipeg with more than 300 people in attendance including current and former NDP and Liberal MPs. In the riding where much of the robocall scandal began, Guelph, a small rally was held, as a few dozen protested in Kitchener. Simultaneously, protests were held in St. John's, and planned for Brampton, Brantford, Hamilton, Kingston, London, Nelson, Oshawa, Saskatoon, Hope, and Fort St. John. The second round of protests occurred March 31, 2012, in a number of Canadian cities including Toronto, St. John's, Brantford, Kitchener-Waterloo, Regina, Winnipeg, Victoria, Vancouver, Kelowna, Fraser Valley, Saint John, Montreal, Hamilton, Halifax, Calgary, Lethbridge, Edmonton, Canmore, Nelson, Ottawa (April 1), and Windsor. This day was termed the National Day against Election Fraud by organizers.

In between the first two cross-Canada protests, Belleville held an electoral fraud rally in solidarity with other ridings who have suffered electoral fraud. It was held at Market Square drawing 100 protestors, as well as Liberal, NDP and Green Party candidates but not the Conservative MP.

A third wave of protests happened April 29, 2012.

Legal challenges

One contested riding, Nipissing—Timiskaming, was won by only 18 votes for the Conservative Party candidate. On March 7, Liberals indicated they were intending to launch a court challenge and were seeking evidence to support a court challenge.

On March 27, 2012 the Council of Canadians announced that they had launched a lawsuit in the Federal Court of Canada to ask for by-elections to be ordered in seven ridings where complaints were received and where Conservatives had won by slim margins. The ridings named are Don Valley East, Winnipeg South Centre, Saskatoon—Rosetown—Biggar, Vancouver Island North, Yukon, Nipissing—Timiskaming and Elmwood—Transcona. In these seven ridings, none of the winning candidates have filed statements in their defence.

Part of the Council of Canadians case relies on the sworn affidavit of Annette Desgagne, a Responsive Marketing Group call centre worker who says that she and her co-workers were given scripts to mislead voters on election day into going to the wrong location to vote. Arthur Hamilton, a lawyer representing the Conservative Party, has called the affidavit "false" and stated that he will seek to have the court case thrown out as "flawed" and "publicity stunt". The lawyer served motions to have the case thrown out of court before the supporting evidence had even been filed. Fred DeLorey, a Conservative Party spokesman, added about the case, "This is a transparent attempt to overturn certified election results simply because this activist group doesn't like them." Desgagne has claimed that she was given scripts while working at the Responsive Marketing Group call centre. These scripts identified the calls as coming from the "Voter Outreach Centre" and told voters about phony changes to voting stations.

While speaking to voters to tell them that their voting location had changed, many voters told Desgagne that they had already voted or that the voting location was over an hour from their house. Desgagne says she distinctly remembers calling someone in the contested Nipissing—Temiskaming riding because she had repeated difficulty pronouncing it — a riding with no actual poll location changes. The sworn affidavit states that other employees noticed that the change-of-location voting information was erroneous and discussed it on their breaks. When hearing another RMG employee use a script that identified himself as from Elections Canada, Annette said "Dude, you’re not from Elections Canada." RMG's spokesperson said that they did not call anyone but Conservative supporters, and that their scripts honestly and correctly identified themselves as from the Conservative Party. RMG further insisted that they made no change-of-address calls regarding voting locations.

In August 2012, RMG executive Andrew Langhorne filed an affidavit calling Desgagne’s story “categorically false,” denying that the company even called opposition supporters in the last days of the election, and referring to a review of recordings of Desgagne’s calls.

Part of the Council of Canadians case involves expert witness testimony from Bob Penner, president and CEO of Strategic Communications Inc. Penner's affidavit says: "The only plausible explanation for such calling to have occurred is for someone at the senior level in a central political campaign to have authorized the strategy and provided the data and the funds with which to carry it out."

On May 22, 2012, Conservatives who had claimed the seven seats called on the courts to dismiss all claims that could cause a byelection, relying on the tight deadlines for such a filing (30 days) rather than on the substance of the allegations. The Council of Canadians, which had organized the plaintiffs, indicated it would continue to press all seven cases, was abandoning none of them, and would oppose the Conservatives' motions, referring to them as "nothing more than an effort to dismiss the democratic rights of individual Canadians...If the Conservatives really want to get to the bottom of the robocalls scandal, they would be keen to have these cases heard and decided. Instead, they are bringing entirely meritless motions to prevent that from happening." The move to dismiss was not allowed, Federal Court Prothonotary Martha Milczynski ruled on July 19, 2012 that the case should proceed, indicating that Council of Canadians' application raised serious doubts about the integrity of the democratic process.

On June 26, 2012, Brother Kornelis Klevering who was the Marijuana Party of Canada candidate for the riding of Guelph, launched his own legal challenge on the grounds that the robo fraud had completely poisoned the integrity of the electoral process, contrary to section 3 of the Canadian Constitution.

In August 2012 it was announced that the Council of Canadians case would be heard December 10-14, 2012 by the Federal Court. Also in August 2012 Elections Canada refused to hand over investigation records to the Federal Court cited jeopardizing ongoing investigations. Elections Canada Commissioner Yves Côté stated in a written a Canada Evidence Act certificate, requesting an exemption from the court order, "public disclosure information from a partially completed investigation carries the serious risk of compromising the investigation by, among other things. influencing the testimony of witnesses, impairing the ability to verify information already obtained. and affecting the willingness of witnesses to speak." Maude Barlow of the Council of Canadians responded, "Elections Canada won’t tell us the basic facts of the case: when the complaints were received, which ridings are involved or what they are doing about it other than chasing Mr. Poutine. Canadians have the right to know whether the elections in their ridings might have been hijacked and what Elections Canada is doing about it. That is all we are asking."

In October 2012, Don Valley East was dropped from the legal case after it was found that Leeanne Bielli, the voter who initially brought the challenge forward, did not live in the riding and therefore became ineligible to challenge the result.

As part of the Council of Canadians case, court documents filed on November 5, 2012, showed that the Responsive Marketing Group, using scripts provided by the Conservative Party, had called voters at the end of the election campaign telling them that their polling stations had been moved when they had not been moved. The factum was filed by Steven Shrybman for the plaintiffs.

Outcomes

Many ridings in the election were won by a margin of fewer than 1,000 votes. If any riding has had electoral fraud that affected a number of voters that could have changed the outcome of the election, a judge can overturn the results. If the election results are thrown out in those ridings where election fraud is found to have altered the final results of the vote by-elections could be called potentially altering the makeup of the House of Commons.

Furthermore, the Canada Elections Act specifies a variety of penalties for violating electoral law, including fines, jail time, and deregistration of a party. The Act lists a number of offenses that can result in the deregistration and liquidation of a party's assets, including providing false or misleading information.

On March 12, the House of Commons passed a unanimous non-binding motion in favour of granting greater investigative powers to Elections Canada and requiring telecommunication companies that contact voters during elections to register with Elections Canada. The government has six months to bring forward legislation containing these reforms.

Electoral law in Canada

Criminal consequences

It's illegal under the Canada Elections Act to impersonate Elections Canada or to interfere with somebody's right to vote. Under Section 403 of the Criminal Code finds individuals who fraudulently impersonate others "(a) with intent to gain advantage for themselves or another person" or "(c) with intent to cause disadvantage to the person being personated or another person" guilty of identity fraud. On an indictment, the convicted faces up to 10 years in prison. The Elections Canada Act has as an offence: Section 43(a) and 43(b): the wilful obstruction and impersonation of the duties of an election officer; S.56(e): the misuse of information obtained from the Register of Elections; S.281(g): the wilful endeavour to prevent and elector from voting; S.480(1): the intent of delaying or obstructing the electoral process; and S.482(b): anyone who "induces a person to vote or refrain from voting or to vote or refrain from voting for a particular candidate at an election" guilty of intimidation of the electoral process. Anyone convicted under s. 482(b) faces, on a summary conviction, a maximum $2,000 fine, or a maximum of one year in prison, or both. On an indictment, individuals found guilty face a maximum of five years in prison, a maximum $5,000 fine, or both.

The current Commissioner is William Corbett. The Commissioner (not the Chief Electoral Officer) is responsible for enforcing the Canada Elections Act and investigating complaints made. He can dismiss complaints if they are outside his jurisdiction, if sufficient remedy has been enacted or if there is no public interest to continue. The office of the Commissioner has investigators available but are able to draw on the RCMP for their investigative capacities for their expertise if he believes there has been an infraction of the Criminal Code. His office has the statutory authority to spend the money necessary to enforce the Canada Elections Act. He then will forward it to the Director of Public Prosecutions to decide whether charges will be laid.

None of the powers of Elections Canada deal with actually overturning the results of an election, only prosecuting those responsible and preventing future occurrences.

Civil

The power to overturn election results in Canada lies entirely with the civil courts in each province, though their orders are subject to appeal ultimately to the Supreme Court of Canada.

Pre-2000

Prior to 2000 the Dominion Controverted Elections Act applied to all contested seats. Under that law

"A candidate or any qualified elector who wishes to contest the result of an election must file an election petition with the office of the clerk of the provincial or territorial court [which] includes the particulars of the complaint whether it be of an undue (i.e., illegal or improper) return or election of a Member, [187] of no return, [188] of a double return, [189] of a special return, [190] or of a corrupt or illegal practice pursuant to the Canada Elections Act."

"The Parliament of Canada Act provides that a Member, who has been declared elected, may not resign his or her seat while his or her election is being contested. [193] However, if the Member gives notice to the court or trial judges that he or she does not intend to oppose the election petition, the Member cannot sit or vote in the House of Commons until the trial judges have reported to the Speaker. [194]"

Accordingly contested seats were held by the MPs who were reported as winning them on election day, who could exercise lawful authority until any bylection was ordered. There were approximately a dozen precedents under this law from its passage in 1887 until it was superseded over 110 years later.

Current (C-2)

Bill C-2 "Clause 524" allows "an elector or candidate to make an application to a court contesting an election on the grounds that the elected candidate was not eligible or that irregularities, fraud, or corrupt or illegal practices had affected the result of the election." However, the deadline requirements are relatively tight (eight to fifteen days).

Precedent

The 1887-1999 precedents remain significant because of a lack of tests under the 1999/2000 C-2 law.

Prior to 2012 there were no precedents whatsoever that referenced the new Act, so the May 2012 Ontario court order for a Toronto byelection constituted a relatively powerful legal precedent that the tight deadlines were not to be counted from election day or night, but rather from the final and authoritative reports of "irregularities, fraud, or corrupt or illegal practices" such as that ordered by the House of Commons itself (see above) including its Conservative majority. The newer C-2 legislation, like the old Act, does not require any criminal intent, criminal conviction, malice or apply a criminal standard of beyond a reasonable doubt, but the civil standard of balance of probabilities.

One implication of this ruling, which prompted strong responses from the seven Conservative Party of Canada MPs whose seats were contested in other suits, is that MPs could be forced into new byelections potentially years after the election.

Such late disputes could also cast into doubt the legitimacy of legislation or decisions they had voted on as MPs, creating further liabilities on the government or the MPs personally, particularly if they had engaged in obstruction of justice such as withholding evidence, perjury, etc.. Such liabilities might not be confined to Canada itself but could affect court rulings anywhere it was held these persons exceeded legitimate authority.

See also

• In and Out scandal
• Electoral fraud
• List of Canadian political scandals
• List of scandals with "-gate" suffix