Sabotaging Democracy:

'Robocall' Vote Suppression in Canada's

May 2, 2011 Election

Michael Keefer

Version 5, June 2014

Contents
Chapter 1. Introduction

3-12

Chapter 2. Harassment: The first wave of telephone fraud in the

2011 election
13-24
Chapter 3. Vote-suppression by misinformation: The second wave
of telephone fraud
25-47
Chapter 4. Questions of context: Conservative Party law-breaking
and improprieties before and since 2011 48-70
Chapter 5. Enforcement issues: the CRTC and Elections Canada
71-88
Chapter 6. Enforcement Issues (2): Responsive Marketing Group
and Annette Desgagn
89-112
Chapter 7. The election campaign in Guelph

113-128

Chapter 8. Guelph, the ground zero of election fraud: the Pierre

Poutine robocalls
129-xx
Chapter 9. Estimating the impact of fraud: Converging lines of
analysis
xx-xx
Chapter 10. Conclusion

xx-xx

Chapter 1. Introduction

Stephen Harpers antipathy for democracy is legendary: shutting down

Parliament twice to avoid public accountability, being found in contempt
of Parliament twice for refusing to release information to the House of
Commons, covering the lies and scandals of his MPs, staff, and advisers,
giving his MPs instructions to disrupt parliamentary committees to render
them unworkable, violating campaign laws, eliminating funding for a
program that allows ordinary Canadians to challenge unjust laws,
legislation, and government policies at the Supreme Court level (now
only the wealthy and corporations get heard), and equating dissent []
with lack of patriotism and treason.
ThinkingManNeil, Dawgs Blawg (3 May 2011)1

The Canadian federal election of 2011, which ran from March 26 until Election
Day on May 2, was marked by a nationwide campaign of fraudulent telephone calls.
aimed in the first instance at sapping the support of the Liberal Party, which up to that
point formed the Official Opposition, and in the second at suppressing election-day
turnout among supporters of opposition parties. Most of these calls were automated
robocalls, but many of them were placed by live operators in call centres.
The fraudulent calls came in two waves. The first, which was reported in the
national news media on April 19 but appears to have begun about a week earlier,
consisted of harassment calls that were falsely made in the name of the Liberal Party
and clearly designed to annoy voters through inappropriate timing and rudeness, and
thus to generate anger against that party and fracture its support. Initially reported as
being focused in Ontario, these calls occurred across the country. The calls in the second
wave, which also occurred in ridings across Canada, sought to suppress the number of
votes cast for opposition parties by falsely informing voters, usually in the name of
Elections Canada, that the locations of their polling stations had been changed.
Twenty-two ridings, fourteen of them in Ontario, were named in the early
reports, but it has since become clear from the number of complaints received by
Elections Canada that harassment calls must have occurred on a very much larger scale.
A second surge of fraudulent calls began several days before the election and climaxed
1

ThinkingManNeil, comment on John Baglow, Dont mourn, organize, Dawgs Blawg (3 May
2011), http://drdawgsblawg.ca/2011.05/election-2011.shtml#disqus_thread.

on election day: these calls, which for the most part claimed to come from Elections
Canada but in many cases provided call-back numbers to Conservative Party phone
lines, informed the recipients of last-minute changes to their polling-station locations
and tried to send them either to incorrect polling stations (usually far from their homes)
or else to equally inconvenient sites where there were no polling stations at all.
Right-wing voices in the media have downplayed the importance of this
robocall scandal: Sun Media pundit Michael Coren scoffed at people getting excited
over a few silly phone calls, while the Globe and Mail's Margaret Wente found it
ridiculous to think there was some massive cheating scheme engineered by higher-ups
in our boring little democracy.2
But whether the calls were silly or not, more than a few of them were made. A
rough calculation based on the very incomplete records of complaints kept by Elections
Canada would suggest that nearly 250,000 fraudulent calls were received by voters,
while a more reliable estimate derived from surveys carried out by two leading polling
companies points to a total (in round terms) of well over four times that number.3
The mid-campaign harassment calls may have contributed to the substantial
decline in Liberal Party support during the latter part of the campaign. And two separate
studies, employing quite different methodologies, have shown that the end-of-campaign
calls produced significant vote-suppression effectssubstantially larger, in some cases,
than the margin of victoryin more than thirty ridings from Prince Edward Island to
British Columbia.4
In most of the other ridings in which fraudulent end-of-campaign telephone calls
were reported, it would appear that the calls were too scattered and infrequent to have
altered the outcome. We may, nonetheless, regard as significant the fact that these calls
were also part of what Andrew Coyne of the National Post has called fraud on the
grand scale and a deliberate and systemic attempt to subvert the democratic process,
using resources ordinarily accessible only to a few: namely, the Conservatives' highly
prized Constituency Information Management System (CIMS).5
2

3
4
5

Margaret Wente, Robo-calls? Get a grip. We're Canadian, The Globe and Mail (6 March 2012,
updated 10 September 2012), http://www.theglobeandmail.com/commentary/robo-calls-get-a-gripwere-canadian/article551567/. Wente and Michael Coren are quoted in an editorial, Waning media
interest in robocalls alarming, Vancouver Courier (6 April 2012),
http://www.vancourier.com/news/Waning+media+interest+robocalls+alarming/6420497/story.html.
See Chapter 3 for details.
These studies are discussed in Chapter 9.
Andrew Coyne: Judge finds smoking gun in robocalls scandal but who pulled the trigger? National

We know which political party benefited from the fraud: converging lines of
analysis discussed in Chapter 9 of this study indicate that the Harper government may
well owe its present slim majority in the House of Commons to what we can
appropriately call a massive cheating scheme. And despite serious inadequacies in the
official investigation of the vote suppression fraud, the evidence as to which political
party organized it points in just one direction: as we will see in the following chapters,
there is strong evidence of Conservative Party involvement in every aspect of the
telephone fraudincluding, as Andrew Coyne indicated, deployment of the party's
closely guarded central database (CIMS) as a tool for targeting opposition-party
supporters.
Conservative Party spokesperson Fred DeLorey stated in February 2012 that
We made around six million calls during the Election to identify our supporters and get
them out to vote; in December 2011 he indicated that over a million of these
Conservatives' calls were made on election day.6 If the total number of mid-campaign
harassment calls and end-of-campaign misinformation calls was of the same order, that
would indicate a quite substantial diversion of effort into illegality.
Once one engages with the evidence, claims that the fraud could have been
organized without the approval of higher-ups begin to seem very silly indeedthough
to describe it as engineered might imply a quality of forethought sometimes lacking
both in the telephone fraud and in the Conservative Party's attempts at concealment.
(Smart people in politics can behave with surprising stupidity: the senatorial careers of
Mike Duffy and Pamela Wallinboth of them skilful political operatives as well as
experienced media professionalsprovide recent examples of behaviour that a
moment's reflection ought to have exposed as injudicious.)
Even when it is clumsily conducted, electoral fraud is still fraud. And even when
the behaviour of our governing party, both in the fraud itself and in the subsequent
cover-up, reveals unprecedented levels of malice and of pettiness, it does not cease to be
interesting. Canada is less of a democracy than Margaret Wente imagines; it may also be
less boring.

Post (24 May 2013), http://fullcomment.nationalpost.com/2013/05/24/judge-finds-smoking-gun-inrobocalls-=scandal-but-who-pulled-the-trigger/.

Quoted by Tonda MacCharles, Conservative scripts misdirected voters in 2011 election, say call
centre staff, Toronto Star (27 February 2012),
http://www.thestar.com/news/canada/2012/02/27/conservative_scripts_misdirected_voters_in_2011_el
ection_say_call_centre_staff.html.

My concern in this study is with evidence, rather than personalities. But I have
begun by quoting, as an epigraph, a partial list of instances of Prime Minister Stephen
Harper's antipathy to or contempt for democracy, written in the immediate aftermath of
the 2011 election by a blogger dismayed by the result. This can serve as a reminder that
the vote-suppression fraud that disfigured that election involves, quite centrally, an issue
of responsibility.
The patterns of illegality that emerge from the evidence I will be considering are
the Prime Minister's responsibility, not just in the loose sense that would result from an
application of Harry Truman's principle that the buck stops at the desk of the person
with the highest level of authority and power, but also more precisely: Stephen Harper, a
well-known micro-manager, has, as Lawrence Martin's 2010 book Harperland: The
Politics of Control revealed, both a control fixation and a fondness for authoritarian
methods.7
In 2006, friends in Ottawa working in two different ministries described to me
how, shortly after the Harper Conservatives came to power, routine business slowed to a
crawl because decisions at all levels were no longer being made in the normal manner
by ministry officials, but were instead being cycled through the Prime Minister's Office,
where the sheer volume of business being transacted meant that decision-making
processes which once took days were sometimes delayed for months.
Stephen Harper's micro-managerial stylehis insistence on having his own
fingers in every potwas more darkly evident in the scandal over Canadian complicity
in the torture of prisoners in Afghanistan. In late 2009, a former senior NATO public
affairs official revealed to the Toronto Star just how directly the Prime Minister had
involved himself in this issue. In 2007, when it was privately and generally
acknowledged in our office that the chances of good treatment at the hands of Afghan
7

Lawrence Martin, Harperland: The Politics of Control (Toronto: Viking Canada, 2010), p. 275. For
further analysis of Harper's methods and orientation, see Murray Dobbin, Harper's Hitlist: Power,
Process and the Assault on Democracy (Council of Canadians, April 2011,
http://www.canadians.org/democracy/index.html); Marci McDonald, The Armageddon Factor: The
Rise of Christian Nationalism in Canada (2nd ed., Toronto: Vintage Canada, 2011); and Christian
Nadeau, Rogue in Power: Why Stephen Harper is Remaking Canada by Stealth, trans. Bob Chodos et
al. (Toronto: Lorimer, 2011).

security forces were almost zero, Harper and his PMO in Ottawa were overseeing
denials of torture to be issued by NATO in Kabul:
I was told this was the titanic issue for Prime Minister Harper
and that every statement that went out needed to be cleared by
him personally []. The lines were, 'We have no evidence' of
coercive treatment being used against detainees handed over to
the Afghans. [.] [I]t was made clear to us that this was coming
from the Prime Minister's Office, which was running the public
affairs aspect of Canadian engagement in Afghanistan with a
6,000-mile screwdriver.8
Who was twisting that screwdriver? According to General Rick Hillier 's 2009
memoir, A Soldier First, Harper's PMO was informed about what was being done to
detainees transferred by the Canadian army to Afghan prisons. 9 In other words, if NATO
officials knew full well that the denials being approved by Harper's PMO were false, so
also did Stephen Harper himself. But the Prime Minister rejected with indignation any
suggestion that Canadian officials could have been implicated, however indirectly, in
the torture of Afghan detaineesand prorogued Parliament to shut down the
parliamentary committee that was hearing evidence which gave him the lie.10
Harper has been equally indignant over any suggestion that his Conservative
Party could have been implicated in the very widespread telephone-fraud vote
suppression that stained and distorted the May 2011 election through which his party
8

10

Mitch Potter, PMO issued instructions on denying abuse in 07, Toronto Star (22 November 2009),
http://www.thestar.com/news/canada/2009/11/22/pmo_issued_instructions_on_denying_abuse_in_07.
html.
General Rick Hillier, A Soldier First: Bullets, Bureaucrats and the Politics of War (Toronto:
HarperCollins, 2009); and John Ibbitson, PMO told about Afghan jail conditions, Hillier writes,
Globe and Mail (21 October 2009),
http://v1.theglobeandmail.com/servlet/story/GAM.20091021.HILLIER21ART2244/TPStory/TPComm
ent. See also Lawyers Against the War, Torture: The Transfers of Afghan Prisoners. Letter to
Canadas House of Commons, Centre for Research on Globalization (22 December 2009),
http://www.globalresearch.ca/index.php?context=va&aid=16648; this text itemizes the evidence, some
of which had been available for years, that Canada's detainee policies violated Canadian and
international law. See also my essay Prime Minister Stephen Harper and Canadian War Crimes in
Afghanistan, Centre for Research on Globalization (24 April 2011),
http://www.globalresearch.ca/index.php?context=va&aid=24473.
One of the most important sources of that evidence was Richard Colvin, a diplomat who showed
exemplary courage and integrity in trying to end Canadian complicity in the torture of Afghan
detainees, and then (in the face of smears from senior government spokespersons including Defence
Minister Peter MacKay) in telling the truth about what had happened. See Murray Dobbin, Harper's
Hitlist, Part 2: Two Prorogations in Less Than a Year; and my essay Prime Minister Stephen
Harper and Canadian War Crimes in Afghanistan, parts 2 and 3 (The Canadian Torture Scandal,
and Running With the Big Dogs).

achieved a majority in the House of Commons. In late February 2012, he told

Parliament that The Conservative party can say absolutely, definitively, it has no role in
any of this. Opposition allegations to the contrary were simply a smear campaign
without any basis at all.11 But prime ministerial bluster, unsupported byindeed,
contradicted by evidence and factsbrings diminishing returns.
Interim Liberal leader Bob Rae proposed, by way of rejoinder, that
The Prime Minister and his colleagues have a remarkable ability
to turn themselves into victims at the same time as they literally
smear thousands of Canadians who are now complaining because
they are aware of a pattern.12
Rae offered as well what seems a more adequate assessment than Harper's of the reality:
The Prime Minister has created a Nixonian culture. This stuff
doesn't happen unless the boss lets it happen. He has allowed to
seep into his party [] a culture of attack and, frankly, a culture
of deception and dirty tricks, where almost anything goes.13
Rae's assessment of the culture of the Harper Conservatives would shortly
receive confirmation of a sort from a quite unexpected direction. Harper assigned to his
parliamentary secretary, Peterborough MP Dean Del Mastro, the lead role in responding
to questions in the House of Commons about the unfolding scandal of telephone-fraud
vote-suppression. Rising aggressively to the occasion, Del Mastro (as Guardian
journalist Colin Horgan observed in March 2012) obfuscated, offering obtuse and often
11

12

13

Quoted by John Ibbitson, Tories lose control of agenda as they try to ride out robo-call storm, Globe
and Mail (1 March 2012, updated 10 September 2012),
http://www.theglobeandmail.com/news/politics/tories-lose-control-of-agenda-as-they-try-to-ride-outrobo-call-storm/article551357/.
Tonda MacCharles, Allan Woods, and Bruce Campion-Smith, Robo-calls: Veteran dirty-tricks
investigator assigned to robo-calls probe, Toronto Star (1 March 2012),
http://www.thestar.com/news/canada/2012/03/01/robocalls_veteran_dirtytricks_investigator_assigned
_to_robocalls_probe.html. Ray may have been alluding here to the fact that on February 25, 2012, two
days after news reports of Elections Canada's investigation gave renewed prominence to the telephone
fraud issue, Harper's parliamentary secretary, Peterborough MP Dean Del Mastro, declared that his
campaign and Conservative supporters in his riding had been victimized by fraudulent phone calls.
(Evidence to this effect has not been forthcoming.)
Quoted by Willy Noiles, Robocalls Target Liberals, View Magazine 19.6 (7-13 February 2013),
http://www.viewmag.com/14108-Robocalls+Target+Liberals.htm. Prompted, it would seem, by Rae's
statement, a Globe and Mail journalist contacted arch-dirty trickster Donald Segretti, a Nixonian
operative who was sentenced to six months in prison for his role in Watergate. Segretti condemned the
robo-call vote suppression in Canada as worse than what he was jailed for: 'We never tried to do
something that would, at the end of the day, take away the right of somebody to vote,' he said. See
Rod Mickleburgh, Robo-calls worse than Watergate, dirty tricks op opines, Globe and Mail (1
March 2012, updated 10 September 2012), http://www.theglobeandmail.com/news/britishcolumbia/rod-mickleburgh/robo-calls-worse-than-watergate-dirty-tricks-op-opines/article2356142/.

absurd answersmostly ones that suggest it has all been some sort of grand Liberal
conspiracy. His favourite line is that the allegations are 'baseless smears'.14
But in June 2012 it emerged that Del Mastro's own campaign in the 2008
election had been marked by multiple layers of illegality and fraud. He was accused,
first, by Elections Canada of having violated the Canada Elections Act's spending limits
by nearly $18,000. Ironically enough, most of this overspending was incurred by a
program of telephone calls: Holinshed Research Group, an Ottawa call centre, had made
25,000 to 30,000 calls into Del Mastro's riding, and billed him for 630 hours of work.
The calls were legitimate, but Del Mastro's payment for themwith a $21,000 personal
cheque drawn on his own bank accountmeant that he went far beyond the $2,100
contribution limit imposed on candidates.
A clumsy attempt to conceal the campaign's overspending involved another
more serious illegality: someone in Del Mastro's office forged a memo purporting to
show a refund of $10,000 from Holinshed. And it appears, finally, that a significant
proportion of Del Mastro's 2008 campaign financing came to him through a kickback
scheme, organized through a construction company owned by a cousin of the MP, in
which employees of the company, and their friends and relations, were paid $1,050
each, in return for which they made $1,000 donations to Del Mastro's campaign. (Every
participant in the scheme thus received $50, plus a $500 tax rebate.) 15 Whatever moral
high ground Del Mastro had claimed to be speaking from in defending the Conservative
Party against suspicions of illegal and fraudulent telephone campaigning was exposed
instead as a sinkhole.
And the Prime Minister? Some aspects of the evidence presented here in relation
to what is commonly known as the 2011 robocall scandal may come as a surprise to
readers. But a disturbing likelihood exists thatalthough Prime Minister Stephen
Harper is no doubt well protected by layers of plausible deniability 16few of these
14

15

16

Colin Horgan, Conservative party's robocall scandal has Canadians less than impressed, The
Guardian (20 March 2012),
http://www.guardian.co.uk/commentisfree/cifamerica/2012/mar/20/canada-sonservatice-partyrobocall-scandal.
Details of the 2008 Dean Del Mastro campaign's multiple violations of the law, and of the responses
(or rather, non-responses) to these violations by the agencies responsible for enforcement of the
relevant laws appear in Chapter 4.
Plausible deniability, a notion sometimes credited to the CIA under Allen Dulles in the 1950s,
involves the creation of deceptive appearances under which false denials by a decision-maker of any
responsibility for, complicity in, or knowledge of state actions that are illegal or disgraceful can be
made to seem credible.

details would be news to him.

* * *
Let's define, as clearly as possible, what it is we're talking about. Our primary
subject is a two-fold eruption of fraud into the 2011 federal election: two waves of
fraudulent telephone calls designed, in defiance of legality, to alter the outcome of the
election through deception. The first wave consisted of calls, apparently most
concentrated in Ontario ridings, but occurring from one end of the country to the other,
that were falsely made in the name of the Liberal Party and clearly designed to harass
voters through inappropriate timing and rudeness, and thus to generate anger against
that party and fracture its support. The calls in the second wave, which also occurred in
ridings across Canada, sought to suppress the number of votes cast for opposition
parties by falsely informing voters, usually in the name of Elections Canada, that the
locations of their polling stations had been changed.
It's important from the outset to have some sense of the scale of the fraud
though I will ask you to wait until Chapter 3 for the full details. On the assumption,
proposed to Elections Canada investigator Allan Mathews by an IT company CEO who
provided him with expert advice, that automated phone calls can be expected to
generate a response rate of approximately one percent, Elections Canada's very
incomplete complaints records would suggest that nearly 250,000 Canadian voters
received fraudulent harassment or misleading polling-location calls. But studies of the
misleading poll-change calls by reputable polling companies point to a substantially
higher figure. The most reliable such poll (in my opinion) is one by Ekos Research that
shows that 2.3 percent of Canadian voterssome 525,000 peoplereceived fraudulent
calls of this kind. Combining this result with the fact that nearly 51 percent of the
complaints received by Elections Canada had to do with harassment calls, we arrive at a
rough estimate of more than a million fraudulent calls in all. Moreover, there is
evidence to suggest that these calls were not sent out at random, but that they
deliberately targeted opposition-party supporters, using phone lists generated from the
Conservative Party's Constituency Information Management System (CIMS).
The term robocall scandal, though I've used it above, seems scarcely adequate
to describe this pattern of harassment and misinformation. There's nothing improper or

illegal about automated phone calls in themselves, and some of the fraudulent calls in
both waves were in fact made by live operators. The scandal does indeed involve the
misuse of a particular technology, but far more importantly, it reveals a ruthlessly
dishonest form of attack politics, coupled with an equally ruthless and dishonest attempt
to suppress the opposition vote, thus frustrating voters in the exercise of their most basic
democratic right.
*

The second and third chapters of this study will outline in some detail the
particularities of the two waves of telephone fraud; and the fourth chapter will offer, by
way of context, a brief account both of some relevant improprieties in the 2006 and
2008 federal elections, and also of more recent instances of sleazy robocalling which the
apparently dilatory and under-resourced Elections Canada investigation of the 2011
election seems to have encouraged the Conservative Party to think it could get away
with. My fifth and sixth chapters will consider issues of the enforcement of CRTC
regulations and the Canada Elections Act, and will show how the timidity and tardiness
of Elections Canada's investigative work led to the irretrievable loss of some important
evidence.
After an analysis in the seventh chapter of what went wrong with the
Conservative campaign in Guelph (an Ontario riding that Harper's strategists had
thought was theirs for the taking in 2011, and on which Conservative operatives
inflicted the most intense onslaught of fraudulent polling-station-change calls in the
country), my eighth chapter will explore the evidence of Conservative Party
responsibility for the telephone harassment and vote suppression which has come to
light in that same ridingthe only one that was investigated by Elections Canada with
any degree of thoroughness.
My ninth chapter will explain how converging lines of analysis make possible an
assessment of the impact of Conservative vote-suppression telephone fraud on the
outcome of the 2011 election, and will lead to the conclusion that the Harper
Conservatives' success in attaining majority-government status in the 2011 election may
well have been due to their campaigns of telephone harassment and vote suppression.
A concluding chapter will offer some reflections on the meaning and

implications not just of this fraud, but also of subsequent attempts to cover it up and,
through the Conservatives' so-called Fair Elections Act, to institutionalize corrupt
electoral practices in Canada.
Until the spring of 2014, it remained possible to make excuses of several kinds
for the inadequacies of Elections Canada's investigation of the telephone fraud in the
2011 election. There's no doubt that for many people, including senior Elections Canada
officials, the reality of what had occurred initially defied belief. There's no doubt that
the feebleness of Elections Canada's investigative powers left the agency powerless in
the face of delays and non-cooperation on the part of Conservative Party officials whom
Elections Canada investigators wished to interview. It's depressingly obvious, moreover,
that at certain key moments those investigators failed to appreciate the importance of
evidence that had come into their hands, and that at one point, when urgent action was
called for to protect key evidence from possible destruction, they failed to take that
action.
But when in late April 2014 Yves Ct, the Commissioner of Canada Elections,
whose responsibility it is to see to the enforcement of the Canada Elections Act,
published a report in which he asserted that except in Guelph no fraud had actually
occurred, it became obvious that something more questionable than incredulity,
investigative impotence, and intermittent incompetence was involved. As will become
apparent, some of the assertions contained in Ct's report are counterfactual to a
ludicrous degree. But the full dimensions of the farce were made evident during the
trial, in early June, of Michael Sona, the Conservative staffer whom party headquarters,
seconded by Mr. Ct, had picked out in February 2012 as the sole instigator of the
fraud in Guelph. An appropriate counterpoint to a trial in which the prosecution's
evidence was, for the most part, of laughable fragility was provided during the spring of
2014 by the ongoing public controversy over Pierre Poilivre's Fair Elections Act, a
bill transparently designed to ensure that nothing resembling a fair national election can
occur again in this country.

Chapter 2. Harassment: The first wave of telephone fraud in

the 2011 election

(i) Harassment callsand the Liberal decline

The first fraudulent intervention in the 2011 election, which was aimed at
disaffiliating voters from the Liberal Party, consisted of harassing or nuisance phone
calls falsely identifying themselves as coming from the campaigns of Liberal MPs or
candidates. These calls deliberately inconvenienced and sometimes also insulted
prospective voters.
In the Toronto riding of Eglinton-Lawrence, Liberal supporters reported
receiving harassment calls from the very beginning of the election campaign in late
March;17 elsewhere, calls of this kind appear to have begun shortly before the two
televised leadership debates, which were held on April 12 and 13 (in French and
English, respectively). These mid-campaign harassment calls became a national news
story on April 19, when reports were published by the Toronto Star, CBC News, and
Maclean's;18 the calls are said to have occurred in at least fourteen Ontario ridings, as
well as in Egmont, PEI; St-Boniface, Manitoba; Edmonton-Spruce Grove; KamloopsNorth Thompson-Cariboo; and four Vancouver-area ridings.19
17

18

19

Stephen Maher and Glen McGregor, At least 14 election ridings blitzed with live calls from fake
Liberals, National Post (24 February 2012), http://news.nationalpost.com/2012/02/24/at-least-14election-ridings-blitzed-with-live-calls-from-fake-liberals/.
See Kenyon Wallace, Liberals say theyre targets of prank campaign calls, Toronto Star (19 April
2011),
http://thestar.com/news/canada/2011/04/19/liberals_say_theyre_targets_of_prank_campaign_calls .htm
l; Dave Seglins and Laura Payton, Elections agency probes harassing calls, CBC News (19 April
2011), http://license.icopyright.net/user/viewFreeUse.act?fuid=MT12MjQ5Mzk%3D; and Liberals
complain their voters are being harassed, Macleans.ca (19 April 2011),
http://www2.macleans.ca/2011/04/19/liberals-complain-their-voters-are-being-harassed/.
Maher and McGregor, At least 14 election ridings blitzed; National Post Staff, Measuring the
impact of robocalls in the 57 ridings allegedly targeted, National Post (28 February 2012, updated 29
February 2012), http://news.nationalpost.com/2012/02/28/robocall-ridings/; Janyce McGregor,
Fraudulent election phone calls raise more questions, CBC News (28 February 2012),
http://www.cbc.ca/news/politics/story/2012/02/28/pol-election-calls-tuesday.html; Tamara Baluja and
Chris Hannay, Map: Which ridings were hit with robo-call allegations? Globe and Mail (1 March
2012, updated 6 September 2012), http://www.theglobeandmail.com/news/politics/map-whichridings-were-hit-with-robo-call-allegations/article2355169/?from=2355176. See also Sharon Kirkey,
Voters receive bogus phone calls, Victoria Times Colonist (3 May 2011),

It has subsequently become clear that harassment calls were made to voters in
many more than just these twenty-two ridings. The Summary Investigation Report on
Robocalls released by Commissioner of Canada Elections Yves Ct in April 2014
revealed that Elections Canada had received a total of 2,448 complaints from voters in
261 electoral districts; Of these complaints, 1,207 related to calls allegedly providing
electors with incorrect poll locations and 1,241 related to alleged nuisance calls. 20
Given that the overwhelming emphasis of media coverage has been on calls that
provided misleading information on supposed changes in polling station locations, the
fact that Elections Canada received more complaints about harassment calls may come
as a surprise. No less surprising is the fact that the 2,448 complaints came from 1,726
complainantsmeaning that fully 42 percent of those who complained to Elections
Canada alleged that they had received fraudulent vote-suppression calls of both kinds.
This fact, though it passed without comment in Ct's Summary Investigation Report, is
a clear indication of a non-random linkage between the two kinds of vote-suppression
callsor, one might equally well say, of targeting.
But the most obvious thing revealed by these figures is that the harassment calls
must have been much more widely distributed than the early reports suggested. Detailed
information has not been published by Elections Canada, but since nearly 51 percent of
the total complaints were prompted by harassment calls, it seems evident that unless
calls of this kind were concentrated to an unusual degree in some ridings, they must
have been reported in most of the ridings in which telephone fraud is alleged to have
occurred.
In the Eglinton-Lawrence riding, where Liberal MP Joe Volpe was upset by
Conservative Joe Oliver, Constituents complained of rude calls at all hours of the night

20

http://www.timescolonist.com/story-print.html?id=47165894&sponsor=; Stephen Maher and Glen

McGregor, 'Robocalls' tried to discourage voters: Caller pretending to be Elections Canada told
voters their polling stations had been moved, Vancouver Sun (23 February 2012),
http://www2.canada.com/vancouversun/news/archives/story.html?id=111e488f-475b-463f-856e3a77e87bc3d8; and Project Poutine: Alleged Opposition Harassment Calls, The Sixth Estate (30
November 2012), http://sixthestate.net/?page_id=7209. The Ontario ridings in which harassment calls
had been reported by early 2012 included the following: Beaches-East York, Cambridge, EglintonLawrence, Guelph, Haldimand-Norfolk, Kingston and the Islands, London North Centre, Niagara
Falls, Northumberland-Quinte West, Oakville, Ottawa-Orleans, Ottawa West, Parkdale-High Park, and
St. Paul's.
Commissioner of Canada Elections [Yves Ct], Summary Investigation Report on Robocalls: An
Investigation into Complaints of Nuisance Telephone Calls and of Telephone Calls Providing
Incorrect Poll Location Information in Electoral Districts Other than Guelph During the 41st
General Election of May 2011 (Ottawa: Elections Canada, April 2014),
http://www.elections.ca/com/rep/rep2/roboinv_e.pdf, para 28, p. 9.

from people claiming to be working for Volpes campaign. 21 Likewise in Guelph,

where Liberal MP Frank Valeriote fended off a challenge by Conservative Marty Burke,
there were complaints that Liberal supporters were being harassed by rude phone calls
some in the middle of the nightfrom callers fraudulently representing themselves as
Liberals.22 This wave of calls seems primarily to have been an attack on Liberal
campaigns, but the same tactic was also used against the New Democratic Party: in
Vancouver Island North, for example, where Conservative John Duncan beat New
Democrat Ronna-Rae Leonard by 1,827 votes, one voter complained of being harassed
between the hours of 2 a.m. and 5 a.m. by automated phone calls asking her to
support the NDP.23
Though calls of this kind might be expected to persuade some people that the
whole electoral process is too irritating to bother with, their obvious primary purpose
was to make Liberal Party campaigners appear inconsiderate, ill-organized, and
obnoxious: as Stephen Maher and Glen McGregor reported, The calls seem to have
been an attempt to alienate Liberal voters in ridings where the Liberals and
Conservatives seemed to be in close contests.24 Early news reports of these midcampaign harassment calls included claims that they were not made at random to
households in the ridings where they occurred, but specifically targeted Liberal
supporters.25
There is reason to suspect that this wave of calls achieved the desired result: the
Toronto Star reported on April 19, 2011 that constituents in at least ten ridings were
furious at being harassed, as they thought, by mid-campaign phone calls from people
working for Liberal candidates.26
It seems plausible that anger aroused by the harassment phone calls could have
been a factor in the accelerating decline in Liberal support that occurred during the last
two weeks of the election campaign. Other factors were of course in playamong them
21
22
23

24
25

26

Wallace, Liberals decimated in GTA, Toronto Star.

Kirkey, Voters receive bogus phone calls, Postmedia News/Victoria Times Colonist.
Stephen Maher and Glen McGregor, Elections Canada gets phone records in 56 ridings in votesuppression probe: Court documents first evidence of widespread investigation, Ottawa Citizen (29
November 2012),
http://www.ottawacitizen.com/news/Elections+Canada+gets+phone+records+ridings+vote+suppressio
n+probe/7630448/story.html.
Maher and McGregor, 'Robocalls' tried to discourage voters.
Wallace, Liberals say theyre targets, Toronto Star; Wallace, Liberals decimated in GTA, Toronto
Star; Kirkey, Voters receive bogus phone calls, Victoria Times Colonist.
Wallace, Liberals say theyre targets, Toronto Star.

media and public responses to the televised leaders debates, held on April 12 and 13.
Only a partisan interpreter would claim that Liberal leader Michael Ignatieff scored a
victory in either debate. But neither would it be accurate to claim that he was decisively
defeated or humbled.27 Opinion polls indicate on average that for four or five days after
the debates, the percentage of Ontario voters supporting the Liberal Party remained
approximately where it had been since the start of the campaignin the low to mid 30s.
(There had been occasional indications in early April of support rising as high as 37 or
38 percentthough in polls with large margins of error.)28
After about a week of the telephone harassment campaign, at the same time as
the calls achieved visibility in the national media on April 19, Liberal support in Ontario
declined for the first time in the campaign to below 30 percent: polls by Ipsos (April 1820), Forum (April 20), and Environics (April 18-21) showed it at 27, 28 and 29 percent
respectively. A shift of support from the Liberal Party to the NDP became unmistakably
evident in an Angus Reid poll of April 22-24, which indicated that the Conservatives
were supported by 37 percent, the Liberals by 27 percent, and the NDP by 30 percent of
Ontario voters.29
A similar pattern can be seen in nation-wide polling. Liberal polling numbers
nationwide had been tracking in the upper 20s, sometimes rising above 30 percent
(though with occasional pollsfour of them in the four days following the second
leaders' debate and the main onset of the harassment phone callsgiving results in the

27

28

29

For an attempt to measure viewer responses to the English-language debate, see Many Canadians
Annoyed with English Debate, But Reacted Well to Policy Ideas, Angus Reid Public Opinion (16
April 2011), www.angus-reid.com/wp-content/uploads/2011/04/2011.04.16_Debate_ENG.pdf. This
study tracked responses of a sample of 1,074 anglophone Canadians to four short clips from the
debate (ranging in length from one and one-half minutes to three and one-half minutes), two of which
were one-on-one exchanges. In the first one-on-one clip, Harper edged Ignatieff as the better
performer (47% to 40%) and as the more believable leader (45% to 40%); in the other one, Ignatieff
and Layton were practically even, with Ignatieff holding a four-point advantage over Layton on
performance (44% to 40%) and a virtual tie on believability (Ignatieff 42%, Layton 40%). In the
other two clips, which involved interventions by all four party leaders, Layton was scored as winning
the first, and Harper the second, with Ignatieff in both cases a distant third. This study is open to
methodological critiques in terms of the criteria for selection of clips and an apparent ambiguity in
annoyance responses. But the judgment of its authors that Harper and Layton did significantly better
overall than Ignatieff would not prevent Liberal supporters from believing that their leader had
performed creditably.
See 2010-11 Provincial & Regional Election Polls: Ontario, Elections (accessed 5 May 2011),
http://www.sfu.ca/~aheard/elections/polls-regional.html#ON. The higher results, in polls by Nanos on
April 2-4 and April 5-7, both showing Liberal support at 38 percent, and by Decima on April 7-10 and
Nanos on April 8-10, both showing their support at 37 percent, all had margins of error of close to 6
percent.
2010-11 Provincial & Regional Election Polls: Ontario.

24-25 percent range).30 Nanos polls on April 17 and 18 showed Liberal support at 30
percent,31 though a trend line based on a combination of opinion polls showed it sinking
from about 27.5 percent on April 16 to just over 25 percent on April 18. 32 A decline in
Liberal support is inescapably evident on April 20, with polls by Nanos, Ekos, and Ipsos
Reid giving the Liberals 26.7, 24.7, and 21 percent respectivelyand a Forum Research
poll putting them at 23 percent, with the NDP two points ahead at 25 percent. Liberal
numbers fell after this point into the low 20s, with dips after April 28 into the high
teens. The Liberal Party received 18.9 percent of the vote on election day.
When complaints about telephone harassment first became public, Conservative
spokesperson Alykhan Velshi insultingly suggested that the Liberals must themselves be
to blame:33 by implication, there was no fraud involved when voters were awakened at 2
a.m. by requests that they support Liberal candidatesjust Liberal Party incompetence.
Conservative MP Dean Del Mastro took the same line in parliamentary debate after
reports of the Elections Canada investigation gave renewed prominence to the telephone
fraud scandal in late February 2012:
The Liberals made a lot of calls in the last election and they are
the source of all these complaints, Del Mastro said. He said it
was up to the Liberals to release their phone call records, not the
Conservatives.34
Stephen Harper likewise declared in Parliament that it was the Liberal party that made
these calls. He claimed as well, since the U.S. provenance of many of the automated
calls had become an issue, that in fact, it was the Liberal party that did source its phone
calls from the United States.35 But this allegation was quickly exposed as based on a
30

31

32

33

34

35

Public Opinion Polls: National, Canada Election 2011,

http://www.electionalmanac.com/canada/polls.php. Four polls immediately after the leaders debates
showed Liberal support in this lower range: Forum Research (14 April: 25 percent), Angus Reid (16
April: 25 percent), Environics (17 April, 24 percent), and Ekos Research (17 April: 24.9 percent).
File: ElectionPollingGraphicCanada2011.png, Wikipedia (3 May 2011),
http://en.wikipedia.org/wiki/File:ElectionPollingGraphCanada2011.png.
File: 2011FederalElectionPolls.png, Wikipedia (1 April 2011),
http://en.wikipedia.org/wiki/File:2011FederalElectionPolls.png.
In response to Liberal politicians' complaints to the media of a dirty tricks campaign, Velshi told the
CBC that his party wasn't to blame: 'The only party with access to the Liberal Party membership list
is the Liberal Party,' he said. 'Are you certain they aren't making the calls to their members?' Quoted
by Maher and McGregor, At least 14 election ridings blitzed, National Post (24 February 2012).
Quoted by Allan Woods and Tonda MacCharles, Robo-calls: Elections Canada probing fraudulent
calls in Ontario riding of Nipissing-Temiskaming, Toronto Star (6 March 2012),
http://www.thestar.com/news/canada/politics/article/1141455--robo-calls-elections-canada-probingfraudulent-calls-in-ontario-riding-of-nipissing-temiskaming.
See Robo-calls could not have come from us, Tories say, but what about Liberals, Toronto Star (1

confusion of two different companies with the same name, one Canadian (which the
Liberals had used) and the other American.36

(ii) Maliceand racism

Harper's, Del Mastro's, and Velshi's taunts appear to be refuted by the fact that
the phone calls were malicious not just in their timing, but often in their content as well.
The widely attested rudeness of the callers was compounded in some cases by a
provocative edge of cultural insensitivity. In the Toronto ridings of Eglinton-Lawrence
and St. Paul's, the campaigns of Liberal MPs Joe Volpe and Carolyn Bennett received
complaints from Jewish voters who were being pestered by supposedly Liberal calls on
the Sabbath (something both Liberal campaigns had been careful to avoid). 37 In
Kingston, Ontario, voters were annoyed by purportedly Liberal solicitations on the
morning of Easter Sunday (when Liberal MP Ted Hsu had in fact suspended all
campaigning).38 And in Egmont, PEI, where the population is a mix of anglophones
and francophones, pseudo-Liberal calls attempted to exploit residual tensions between
the two communities by giving a false English pronunciation to the name of Liberal
candidate Guy Gallant (who is Acadian), and then asking, in what seems to have been a
faked French accent, Do you have intention to vote Guy Gallant?39

36

37

38

39

March 2012),
http://www.thestar.com/news/canada/2012/03/01/robocalls_could_not_have_come_from_us_tories_sa
y_but_what_about_liberals.html.
See Tonda MacCharles, Allan Woods, and Bruce Campion-Smith, Robo-calls: Veteran dirty-tricks
investigator assigned to robo-calls probe, Toronto Star (1 March 2012),
http://www.thestar.com/news/canada/2012/03/01/robocalls_veteran_dirtytricks_investigator_assigned
_to_robocalls_probe.html.
Woods and MacCharles, Robo-calls: Elections Canada probing fraudulent calls in Ontario riding of
Nipissing-Temiskaming.
Janyce McGregor, Fraudulent election phone calls raise more questions, CBC News (28 February
2012), http://www.cbc.ca/news/politics/story/2012/02/28/pol-election-calls-tuesday.html.
Ibid. Jason Lietaer, who ran the Conservative war room during the 2011 campaign, dismisses this
(and all the other instances of telephone harassment) as typical complaints of those contacted by
call centres; he claims, in a homely manner, that Every once in [a] while my wife voices the same
complaint to me about political calls and fundraising (Lietaer, 'Who's calling?' 'The Conservatives',
Maclean's [28 February 2012], http://www2.macleans.ca/2012/02/28/whos-calling-theconservatives/#more-242631). For Lietaer's sake, and that of other political strategists who pretend
ignorance of the mud they are stirring up, one can spell out the way in which this call attempted to
connect with anti-francophone prejudices that are still far from extinct in mixed communities in
eastern Canada. The caller was mimicking the behaviour of a francophone canvasser attempting to
conceal the francophone identity of his candidate, but giving the game away through his own Frenchinflected English (which is a word-for-word rendering of Avez-vous l'intention de voter Guy

In Oakville, Ontario, where Liberal candidate Max Khan was of South Asian
origin, voters received harassment phone calls from someone imitating a Pakistani
accent.40 The intended victims interpreted these calls as going beyond rudeness into
open racism: according to Khan's campaign manager, Sometimes the calls used a voice
deliberately mocking of our candidate, with a fake accent []. They were racist.41
A tinge of racism is likewise evident in the live calls to which Liberal MP Glen
Pearson attributed his defeat in London North Centre. (These calls acknowledged
coming from the Conservative Party, and in that sense belong to a different category
than the harassment calls elsewhere, but they reveal a similar malice and contempt for
the truth.) Pearson, who has three Sudanese children, has visited Africa with them for a
week each yearin January, when the House of Commons is in recess. During the final
week of the election campaign, his riding was blanketed with calls which falsely
accused him of neglecting his constituents by spending six months of every year in
Africa. As a result, Pearson said, In the last week of the campaign there was a decided
change in mood at the many doors the volunteers and I visited.42
In other cases, the malice of the harassment calls found expression in a level of
fraud that gave a further twist to the usual misrepresentations: for example, in Niagara
Falls, Ontario, Craig Brockwell, the campaign manager of Liberal candidate Bev
Hodgson, received reports that Hodgson was being impersonated in rude calls made
after 9 p.m.;43 and in Haldimand-Norfolk, where former Liberal MP Bob Speller was
challenging Conservative Diane Finley, fake Liberal calls were waking people up,
according to [Liberal] campaign manager Ian Malowith a recording of Bob Spellers
own voice spliced into the offending automated calls.44

40

41
42

43
44

Gallant?). The implicit subtext is: We Frenchies are trying to take over, and if we can sucker you
into thinking we're really anglophones, we may succeed. This subtextual message is no less stupid
than nasty, but some colleague of Jason Lietaer'sand for all we know, Lietaer himselfmust have
thought it would work. (Perhaps it did: Conservative Gail Shea, who won by just 55 votes in 2008,
defeated Gallant by a margin of 23.3 percent, winning 54.6 percent of the votes to his 31.3 percent.)
Linda Nguyen, Robocalls contributed to Liberals defeat in at least 27 ridings: Bob Rae, National
Post (26 February 2012), http://news.nationalpost.com/2012/02/26/robocalls-bob-rae/.
Maher and McGregor, At least 14 election ridings blitzed.
Baluja and Hannay, Map: Which ridings were hit; and Maher and McGregor, At least 14 election
ridings blitzed.
National Post Staff, Measuring the impact of robocalls in the 57 ridings allegedly targeted.
Maher and McGregor, At least 14 election ridings blitzed; and Seglins and Payton, Elections
agency probes, CBC News. There is no reason to doubt Speller's statement that he and his campaign
had no part in the making or dissemination of the messages.

(iii) Evidence in Guelph of Conservative involvement

In the riding of Guelph, evidence suggests that the same person or persons who
organized the most intense campaign of fraudulent polling station location-change calls
in the country were also responsible for the harassment calls that had already occurred
in that riding. By late November 2011, the work of Elections Canada investigator Allan
Mathews had led to the recognition that the prepaid Virgin Mobile burner cellphone
whose number (450-760-7746) had shown up as the originating number on the call
display of recipients of the misleading polling-station-change calls in Guelph had been
used to contact RackNine, an Edmonton voice broadcasting company that had had been
under contract with the Conservative Party during the 2011 election to provide its
services to that party exclusively. Although the official return submitted to Elections
Canada by the Marty Burke Conservative campaign in Guelph did not list RackNine as
an expense, and contained no invoice or other record relating to RackNine, telephone
records revealed that one of the Burke campaign's three telephones had been used on
May 2, election day, to place two calls to RackNine, one of them to the personal number
of Matt Meier, the company's CEO.45
Suspecting that the fraudulent automated calls which had created an uproar in
Guelph on the morning of election day could have been sent out by RackNine on
instructions from the burner cellphone, that the calls emanating from RackNine
showed the spoofed number of the cellphone on recipients' call displays, and that the
owner of that cellphone had some connection to the Marty Burke campaignall of
which turned out to be the caseMathews obtained from a judge a Production Order
dated November 23, 2011, for RackNine records relating to the Marty Burke campaign
and to calls to Guelph on May 2, 2011.46
Matt Meier was immediately able to locate a digital copy of the voice message
that was the subject of elector complaints to Elections Canada and which was
transmitted to phone numbers in Guelph as though coming from 450-760-7746 on May
2, 2011, and Mathews verified that this was the same message that had been received
by Guelph voters, and recorded by some complainants. Meier also provided Mathews
with a second message that the same client (#93 in RackNine's records) had uploaded
45
46

See Allan Mathews, Information to Obtain a Production Order [December 12, 2011], paras. 107-109.
Ibid., para. 114.

but had decided at the last moment on May 2 not to use and had deletedan action
that, as Meier explained, did not erase the data but simply concealed it within the
company's records. This second message, Mathews wrote, had the appearance of being
in support of the Frank Valeriote (Liberal Party) campaign in Guelph. The voice
sounded to me as though computer generated rather than a script read by a person.47
RackNine's records also showed that this client had set up three caller ID phone
numbers which the client could choose to have appear on call recipients' call displays
[...] once a call was transmitted. One of these was the burner phone's number (450760-7746); a second was the fake and out-of-service number (800-434-4456) that was
supplied in the fraudulent poll-moving calls as an Elections Canada number; the third
was the Frank Valeriote campaign office public number used during the 41st election
campaign.48
Mathews wrote that I do not presently know the significance of this number
being set by client id #93.49 But in view of the fact that Guelph was one of the ridings
in which Liberal Party supporters had been harassed by rude, ill-timed, or otherwise
obnoxious calls that purported to come from the local Liberal campaign, it is blindingly
obvious that in November 2011 Mathews had stumbled upon evidence pointing to client
#93's involvement in this telephone harassment fraud. What else could be indicated by
the preparation of a deliberately clumsy and artificial-sounding message, together with
an arrangement that would make it possible to have the Valeriote campaign's telephone
number appear on the call displays of its recipients?
As Mathews subsequently discovered, RackNine did some legitimate business
for the Marty Burke campaign during the 2011 election (sending out notices for
campaign events and the like); this work was effectively subcontracted through the
campaign's Deputy Manager, Andrew Prescott. But how many other automated
messages did RackNine send into Guelph prior to May 2, 2011? Did some of these
messages consist of clumsy professedly pro-Valeriote recordings? Were they sent out at
night, carrying the spoofed telephone number of the Valeriote campaign? And would the
list of people to whom they were sent turn out to be Liberal Party supporters?
Information of this kind, by Meier's own account, was retained in his company's
records. But we do not have answers to these questions, for the very simple reason that
47
48
49

Ibid., paras. 116-117.

Ibid., para 124.
Ibid.

Allan Mathews did not think to pose them. His Production Order asked for records
relating to the Marty Burke campaign and to election-day calls to Guelphbut this
wouldn't cover any prior contacts RackNine may have had with other Guelph clients
who didn't advertise themselves as Burke operatives, or any mid-campaign calls for
which these clients may have been responsible.
Seek, and ye shall find, the proverb says. Don't seek, and you won't.
As a later chapter will make clear, RackNine's client #93 was indeed a
Conservative Party operative. Moreover, circumstantial evidence points to the Harper
Conservatives' responsibility for the telephone harassment campaign in its entirety.
Under Stephen Harper's leadership, the Conservative Party has relied at every
turn on below-the-belt attack politics. And as will be seen in Chapter 4, the
Conservatives showed open contempt for the laws governing election campaigns in the
federal elections of 2006 and 2008; they made use of fraudulent robocalls in the 2008
election; and since the 2011 election, they have repeatedly deployed deceptive
robocalls. More importantly, they are demonstrably the perpetrators of the campaign of
telephone-fraud vote suppression that immediately followed the telephone harassment
campaign in the 2011 electionand as we saw in the opening paragraphs of this
chapter, a linkage between the two campaigns is indicated by the fact that fully 42
percent of the people whose complaints were recorded by Elections Canada claimed to
have received fraudulent calls of both kinds.

(iv) Scaleand impact?

The complaints data retained by Elections Canada would suggest that the
nationwide harassment campaign was conducted, with widely varying degrees of
intensity, in most of the electoral districts in Canada. Unlike the polling-station
misinformation calls, which began three days before the election and rose to a crescendo
on the morning of election day, May 2, the harassment calls were conducted over much
longer periods. Although they have received much less media attention than the end-ofelection-campaign misinformation fraud, the complaints made to Elections Canada
indicate, as noted above, that the two campaigns were of the same order of magnitude:

51 percent of the complaints of which Elections Canada kept records were prompted by
harassment calls, and the other 49 percent by polling-change misinformation calls.50
As for the impact: it is suggestive that Liberal support both in Ontario and
nationally remained much where it had been beforein the low to mid 30suntil four
or five days after the two leadership debates, and only began its clear downward slide at
about the same time that the telephone harassment campaign had gained sufficient
traction to be reported in the national media.
Yet in a situation in which multiple factors are in play, the temporal correlation
between the wave of harassment phone calls and the decline in Liberal support cannot
support any definite or quantitative conclusions. The timing of the harassment phone
calls was in this sense astute: any claim that they were sabotaging the Liberal campaign
could be countered with sneers that Ignatieff's performance in the debates was the real
cause of the party's declining support. The strange passivity of the Liberal leadership in
the face of unrelenting Conservative attack ads and smears may also have contributed to
the decline: some of the mud slung at Michael Ignatieff failed to adhere, 51 but enough of
50

51

Commissioner of Canada Elections [Yves Ct], Summary Investigation Report on Robocalls,

paragraph 28, p. 9. Earlier figures released by Elections Canada indicated that 45 percent of the
fraudulent calls were harassment calls, and 55 percent were misleading polling-station-location calls;
see Bruce Campion-Smith and Les Whittington, Elections Canada reveals massive robo-calls probe
of 2011 election, Toronto Star (30 November 2012),
http://www.thestar.com/news/canada/2012/11/30/elections_canada_reveals_massive_robocalls_probe_
of_2011_election.html.
One notorious example (which was a partial failure) was the attempt of the Conservative Party, in
collaboration with Sun Media, to smear Ignatieff as having been centrally involved in Pentagon and
U.S. State Department pre-invasion planning prior to the 2003 U.S. attack on Iraq. Patrick Muttart,
Stephen Harper's deputy chief of staff, provided Sun Media with a photograph that purported to show
Ignatieff posing with a group of American soldiersall of the men in battledress, holding automatic
weapons, and wearing Santa Claus hats (which would date the image to December 2002)together
with an attached report that tried to make a case for Ignatieff's importance in U.S. war planning. The
report was used by Brian Lilley in a smear article, Ignatieff linked to Iraq war planning, Toronto
Sun (20 April 2011), http://www.torontosun.com/2011/04/20/ignatieff-linked-to-warplanning&overridetemplate=SUN_BLOCK_QuickRead, which received a same-day refutation by
Glen McGregor, Debunking Ignatieff's Iraq 'invasion planning', Talking Points: Ottawa Citizen's
2011 federal election notebook (20 April 2011), http://talkpos.wordpress.com/2011/04/20/debunkingignatieffs-iraq-invasion-planning/. But Sun Media identified the photograph as inauthentic, and Sun
CEO Pierre Karl Peladeau denounced it as an attempt to damage his company as well as Ignatieff
(All's not fair in war: Planted info on Ignatieff 'should concern all Canadians' says Sun CEO,
Canoe.ca [27 April 2011], http://cnews.canoe.ca/CNEWS/Canada/2011/04/27/18071406.html).
Muttart was immediately forced to resign; see Kady O'Malley, UPDATED: DirtyTrickWatch: Did
Conservative campaign really try to plant bogus Ignatieff photos with QMI? Inside Politics Blog (27
April 2011), http://www.cbc.ca/news/politics/inside-politics-blog/2011/04/dirtytrickwatch-did-theconservative-campaign-really-try-to-plant-bogus-ignatieff-photos-with-qmi.html; Jane Taber, Whiz
kid Patrick Muttart leaves Tory campaign after fake Ignatieff photo flap, The Globe and Mail (27
April 2011), http://www.theglobeandmail.com/news/politics/ottawa-notebook/whiz-kid-patrickmuttart-leaves-tory-campaign-after-fake-ignatieff-photo-flap/article2000591/?from=sec368; and
Parsing the Lies in the Muttart Scandal, The Sixth Estate (27 April 2011), http://sixthestate.net/?
p=1578.

it did to give voters a sense of someone less in command of events than Stephen Harper.
Nor can one discount the strong debating skills and effective campaigning of NDP
leader Jack Layton as a significant factor in the shift of voters' support from the Liberal
Party to the NDP.
Nonetheless, it remains clear that the telephone harassment campaign was one of
several factors in the Liberals' declineand not necessarily the least of them.
Whatever the precise interplay of causes may have been, the Liberal ship very
visibly took on water during the last two weeks of the campaign, and on election day
came close to going down with all hands. One may want to ask whether the appropriate
comparison would be to the Titanic or the Lusitania: to what extent was the disaster due
to poor judgment on the part of people at the helm, 52 and to what extent to the impact of
torpedoes hitting below the water-line?53
The 'torpedoes', in this case, were upwards of half-a-million fraudulent telephone
calls.

52

53

A number of Liberal misjudgments are discussed by Paul Wells, The untold story of the 2011
election: Introduction and Chapter 1. Behind the scenes of an epic campaign that turned Canadian
politics on its head and finally gave Harper his majority, Maclean's (4 May 2011),
http://www2.macleans.ca/2011/05/04/politics-turned-over/#C1.
By way of reminder: the RMS Titanic sank on April 15, 1912 after striking an iceberg just south of the
Grand Banks of Newfoundland; the RMS Lusitania was sunk by the German submarine U20 in the
Irish Channel on May 7, 1915.

Chapter 3. Vote-suppression by misinformation: the second

wave of telephone fraud

The second, much more widely reported wave of phone calls began on April 29,
a Friday, continued with increased intensity over the following weekend, and climaxed
on May 2, 2011, election day. The intention of these calls was straightforward: to
obstruct would-be voters in the exercise of their most fundamental democratic right by
informing them that the location of their polling stations had been changed, and to
suppress the election day turn-out of opposition-party supporters by sending them on
wild goose chases after distant polling stations that they would discover, on arrival,
either did not exist or could not accommodate them.

(i) Conservative responsibility: the Elections Canada emails

The early calls seem with surprising frequency to have identified themselves,
either directly or through Call Display, as coming from campaign offices of the
Conservative Party.54 The email correspondence of Elections Canada officials, released
under the Access to Information Act in November 2012, shows that the agency was
aware both of the emerging pattern of misdirection fraud, and also of evidence
54

See Greg Layson, Voters receive hoax calls about changes to polling stations, Guelph Mercury (2
May 2011), http://www.guelphmercury.com/news/story/2767523-voters-receive-hoax-calls-aboutchanges-to-polling-stations/; Ashley Csanady, MP Albrecht pledges investigation after 'crank'
election calls traced to Tory office, Kitchener-Waterloo Record (20 December 2011),
http://www.therecord.com/news/local/article641986--crank-calls-remain-a-fixture-on-political-scene;
Tonda MacCharles, Conservative scripts misdirected voters in 2011 election, say call centre staff,
Toronto Star (27 February 2012),
http://www.thestar.com/news/canada/2012/02/27/conservative_scripts_misdirected_voters_in_2011_el
ection_say_call_centre_staff.html; Glen McGregor and Stephen Maher, Emails show Elections
Canada raised voter suppression concerns before election, Ottawa Citizen (16 November 2012)
http://www.ottawacitizen.com/news/Emails+show+Elections+Canada+raised+voter+suppression+con
cerns+before+election/7562009/story.html; Laura Payton, Complaints about Tory calls began 3 days
before polls opened, CBC News (19 November 2012),
http://www.cbc.ca/news/politics/story/2012/11/19/pol-elections-canada-emails-show-complaintsrobocalls.html; and the sources listed in the following note.

indicating the Conservative Party as the source of the fraudulent calls.

At 8:16 p.m. on April 29, Sylvie Jacmain, Elections Canada's director of field
programs and services, wrote to agency lawyer Ageliki Apostolakos that in the ridings
of St-Boniface, Manitoba, and Kitchener-Conestoga, Ontario, it seems representatives
of Mr. Harper's campaign communicated with voters to inform them that their polling
station had changed, and the directions offered to one would lead her more than an hour
and a half from her real voting place, which is found a few minutes from her home.
Apostolakos quickly passed on this information to the Conservative Party's lawyer,
Arthur Hamilton.55
The message put Hamilton in a delicate position. Prior to the election, as
Postmedia journalists Stephen Maher and Glen McGregor have reported, Elections
Canada had asked the parties not to communicate information about polling station
locations to voters;56 and now the agency's officials were declaring that Hamilton's
party was communicating misinformation on the subject.
His response was to stonewall: Hamilton held off replying until twenty-seven
hours later, very early in the morning of May 1, and then claimed that Conservative
candidates were contacting voters only to ensure that they went to the right polling
places:
The calls being made by our candidates request the voter to
confirm his or her polling location []. There is no indication by
the caller that the location may have changed or words to that
effect. And no voter is being directed to a polling location one and
55

56

Glen McGregor and Stephen Maher, Emails show Elections Canada raised voter suppression
concerns before election, Ottawa Citizen (16 November 2012); see also Robocalls Complaints Came
3 Days Before 2011 Election, CBC News (19 November 2012), available at Huffington Post,
www.huffingtonpost.ca/2012/11/19/robocalls-complaints-2011-election_n_2161610.html.
Stephen Maher and Glen McGregor, Elections Canada gets phone records in 56 ridings in votesuppression probe, Ottawa Citizen (29 November 2012),
http://www.ottawacitizen.com/news/Elections+Canada+gets+phone+records+ridings+vote+suppressio
n+probe/7630448/story.html. Details are provided in Preventing Deceptive Communications with
Electors: Recommendations from the Chief Electoral Officer of Canada Following the 41st General
Election (Ottawa: Elections Canada, 26 March 2013),
www.elections.ca/res/rep/off/comm/comm_e.pdf, p. 18, n. 22: In April 2011, following a request
from a party, Elections Canada sent a dataset of all polling sites to be used for the 41st general election
to all political parties. The message covering the dataset indicated that polling locations may change.
As a result, it asked parties to ensure that users of the dataset respect the following restrictions: that
the dataset be used for internal purposes only; that it not be used to inform voters of their voting
location, via mail-outs or other forms of communications; and that it not be shared with any other
organization. Elsewhere in this document, when Marc Mayrand refers coyly to a party, he means
the Conservative Party.

a half hours away from the correct polling location.57

On the afternoon of May 1, election officer Anita Hawdur wrote to inform
Apostolakos that The polling station numbers given out by the Conservative Party []
are all wrong. Most of them are quite far away from the elector's home and from the
initial polling place that showed on their VIC [voter information card]. Shortly
afterwards, Hawdur sent a second message to Apostolakos warning that, in one riding,
officials received four calls from voters saying they had been misdirected. 'This is
getting pretty suspicious,' she wrote. 'The workers in the returning office think these
people are running a scam.' And at 3:32 p.m. she reported that we are starting to get
more calls now.58
Also on the afternoon of May 1, Elections Canada lawyer Michle Ren de
Cotret wrote to Jane Dunlop, the manager of external relations, to inform her of 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. 59 And Elections Canada
lawyer Karen McNeil sent a second message to Arthur Hamilton, informing him that
misleading poll-moving calls had by now been reported from the ridings of Avalon
(Newfoundland and Labrador); Cardigan (Prince Edward Island); West Nova (Nova
Scotia); Ajax-Pickering, Halton, Kingston and the Islands, Kitchener-Conestoga, and
Vaughan (Ontario); and Kildonan-St.Paul, St-Boniface, and Winnipeg Centre
(Manitoba). She provided him with a list of the originating phone numbers that some
complainants had recorded, and noted that voters who called these numbers back heard
messages identifying the lines as used by the Conservative Party.60
Hamilton delayed replying until 10:45 a.m. on the next day, May 2and then
with a short message saying only that he would forward to McNeil the same unhelpful
statement he had already sent to Apostolakos. By this time, the campaign of votesuppression calls had become very much more intense, causing widespread
disruption, according to election-day reports.61 And in Guelph, as Glen McGregor and
Stephen Maher have observed, large numbers of voters, victims of a deceptive robocall,
57
58

59
60
61

McGregor and Maher, Emails show Elections Canada raised voter suppression concerns.
Stephen Maher and Glen McGregor, Elections Canada email trail points to growing suspicions over
voter suppression 'mischief' during 2011 election, Postmedia News (16 November 2012),
http://o.canada.com/2012/11/16/elections-canada-email-trail-points-to-growing-suspicions-over-votersuppression-mischief-during-2011-election/.
Ibid.
Ibid., and McGregor and Maher, Emails show Elections Canada raised voter suppression concerns.
See notes 89 and 90 below.

were heading to vote at the Quebec Street Mall 62where they would learn they had
been duped. There was indeed a polling station there, but it was in no way equipped to
handle a large influx of people who were supposed to be voting elsewhere.
One segment of the anxious correspondence among Elections Canada officials
was made public before November 2012: as Stephen Maher and Glen McGregor wrote
on February 22, 2012, at 11:06 a.m. on election day,
Anita Hawdur sent an e-mail to legal counsel Karen McNeil with
the

header:

URGENT

Conservative

campaign

office

communication with electors. Hawdur reported that returning

officers were calling to ask about the calls. McNeil responded by
asking Hawdur to alert Ronnie Moldar, the deputy chief electoral
officer. He later e-mailed Michael Roussel, a senior director:
This one is far more serious. They have actually disrupted the
voting process.63
Several days after revealing, in mid-November 2012, the intense concerns
expressed in Elections Canada correspondence during the days from April 29 to May 2,
2011, Maher and McGregor checked websites such as 1-800-NOTES and whocallsme,
which track the source of annoying telemarketing calls, and discovered that voters
had used these sites to complain about Conservative calls from the same numbers cited
in a flurry of frantic emails at Elections Canada in the last three days of the campaign.
The posters whom they quote show a lucid understanding of what was happening. One
of them, 'LoriB',
reported receiving a call from 902-800-1015: They told me the
location where I vote on Monday has changed. I called Elections
Canada and was told the location has not changed and I was not
the first call they had today asking the same thing.64
62
63

64

McGregor and Maher, Emails show Elections Canada raised voter suppression concerns.
Stephen Maher and Glen McGregor, Firm with Tory links traced to election day 'robocalls' that tried
to discourage voters, National Post (22 February 2012, updated 7 March 2012),
http://news.nationalpost.com/2012/02/22/racknine-inc-fraudulent-election-calls-traced/.
Stephen Maher and Glen McGregor, Web postings show voters complained of 'scam' calls during
2011 federal election, National Post (20 November 2012),
http://news.nationalpost.com/2012/11/20/web-postings-show-voters-complained-of-scam-callsduring-2011-federal-election/. The 902 area code covers Nova Scotia. One might suppose from this
that 'LoriB' lives in Atlantic Canada. But if the call she received was organized in the same manner as
the Guelph robocalls, the apparent originating number would have been spoofed, and would track
back to an untraceable Virgin Mobile burner phone which might have been registered with a Nove
Scotia area code, but could have been purchased and activated anywhere in Canada, while the actual

Another poster, 'Carlie',

wrote that she received a call from from Conservative MP Peter
Braid's Kitchener-Waterloo campaign telling her that polling
stations had been moved: Of course, there are no 'last-minute'
changes to voting locations, she wrote. This is clearly a prank, if
not an illegal ploy by Conservatives to confuse voters they have
identified as not voting for them in an attempt to misdirect them
on May 2.65
In the same article, Maher and McGregor report on their attempt to follow up an
intriguing loose end in the Elections Canada emails. One of the sources for the first
message quoted above, in which Sylvie Jacmain informed Ageliki Apostolakos about
calls from representatives of M. Harper's campaign to voters in St-Boniface and
Kitchener-Conestoga, was an email from Elections Canada official Sylvain Lortie to
Jacmain informing her of misdirection calls in St-Boniface made by people identifying
themselves as calling on behalf of the Conservatives.
Maher and McGregor write that In another email, Lortie indicated that the calls
had allegedly been stopped by Conservative party headquarters 'at the request of the
local association.'66 But their inquiry into this interesting claim ran into a brick wall:
[...] John Tropak, campaign manager for Shelly Glover, the
Conservative MP for Saint Boniface, declined to say who the
campaign contacted in Ottawa to ask the party to stop the bad
calls. I have no idea what you're talking about, he said
repeatedly. I get it but I don't have any knowledge about anything
like that whatsoever.67
One feature of these misinformation calls that may seem, on reflection, distinctly
odd is the frequency with which the pre-election day calls, and some election-day calls
as well, identified themselves as coming from the Conservative Party. News reports of
the fraud published on May 2, 2011 typically described automated misinformation calls
which ended by offering voters a 1-800 number to call (an out-of-service number,
needless to say) if they had any questions about the change in venue of their polling

65
66
67

originator of the call would have been a voice broadcasting company like RackNine.
Ibid.
Ibid.
Ibid.

station.68
I remember being astonished on May 2 by a report from Guelph of a variant
version of the misinformation call, coming from a live operator, who if asked for a
phone number offers the number for the campaign office of [Guelph] Conservative
candidate Marty Burke. This same report recounted the experience of a Guelph
resident who had received a live misinformation call on May 1, and when he called the
local number the operator had given him, was greeted with a recorded message from
'the Conservative Party of Canada' and asked to leave a message. 69 It seemed
incomprehensible to me that people responsible for a fraud would so naively identify
themselves: I wondered whether disgruntled phone-bank operators were perhaps
deliberately exposing the identity of their employersor indeed whether some other
organization could have been responsible for the fraud and was cynically blaming it on
the Conservatives.
In some instances, it appears that party identification was omitted from votesuppression calls. Annette Desgagn, who worked as an operator for Responsive
Marketing Group's call centre in Thunder Bay, testified to a federal court that the script
for what she believed to be vote-suppression calls she was ordered to make did not
include any mention of the Conservative Party, at whose behest the calls were made. 70
But the Elections Canada emails show that a pattern in which fraudulent calls included
tell-tale indications of their provenance was widespread.
This can perhaps be accounted for if one remembers that in the final days of the
campaign the constituency workers of all parties and the voice-broadcasting companies
they used were very busily engaged in get-out-the-vote activities, attempting to mobilize
supporters by means that included both live and automated telephone calls. It seems
plausible that in the absence of clear instructions to the contrary, Conservative
operatives who were handling the segue from get-out-the-vote to vote-suppression calls
may in many cases have neglected to remove from their scripts the party identification
that is a central part of get-out-the-vote calls.

68

69
70

See, for example, Elections Canada warns voters over false phone calls, CBC News (2 May 2011),
http://www.cbc.ca/news/politics/canadavotes2011/story/2011/05/02/cv-election-polling-pranks411.html.
Layson, Voters receive hoax calls about changes to polling stations.
See Chapter 8, section (iii).

(ii) Conservative responsibility: the targeting of opposition voters

More striking than the unhelpfulnesseven, one might say, the insolenceof
Conservative Party lawyer Arthur Hamilton's replies to the messages he received from
Elections Canada lawyers Ageliki Apostolakos and Karen McNeil are the key facts that
emerge from these exchanges:
(1) From the day that the campaign of fraudulent polling-change
misdirection calls began, Elections Canada had evidence pointing to
Conservative Party responsibility for these calls.
(2) Elections Canada lawyers shared this information with the
Conservative Party's lawyer Arthur Hamilton on April 29 and on May 1
by which time it included a substantial list of ridings in which the
fraud was occurring, a list of originating phone numbers recorded by
complainants, and a statement that messages on these lines linked them
to the Conservative Party.
(3) Hamilton responded by simply rejecting the information
provided to him by Elections Canada; but his assertion that phone calls
from Conservative sources contained no indication [] that the
[polling] location may have changed was flatly contradicted by the
evidence shared with him by Elections Canada lawyers.
Other Conservative Party spokespersons have subsequently deviated from
Hamilton's line to the degree of acknowledging that some calls involved telling voters
Conservative supporters only, of coursethat their polling station location could have
been changed. In late February 2012, party lawyer Fred DeLorey stated that
Elections Canada changed some poll locations during the election,
which is their prerogative. Our job is to get votes out and wrong
locations hurt us, so to ensure our supporters knew where to go,
we would ask them if they knew where their poll was. When they
told us their poll was in a different location than was in our
system, we would tell them that Elections Canada may have
changed it, and give what we thought was the right address.71
71

Quoted by Tonda MacCharles, Conservative scripts misdirected voters in 2011 election, say call
centre staff, Toronto Star (27 February 2012),

And in November 2012, DeLorey stated that

To ensure our supporters knew where to vote, our script read that
Elections Canada has changed some voting locations at the last
moment. To be sure could you tell me the address of where you're
voting?
Asserting that the Conservatives were innocently responding to a problem caused by
Elections Canada having changed over 1,000 polls locations [around] the country, he
said that
In the days leading up to and including Election Day we were
only calling our identified supporters to get out the vote, and in
every call we identified ourselves as calling on behalf of the
Conservative Party, so any accusation that we were misleading
voters doesn't hold up to those simple facts.72
But DeLorey's statement about the number of polling locations changed by
Elections Canada is incorrect, and his assertions that the Conservative Party made sure
it was identified as the source of every call made on its behalf and called only its own
supporters are false.
Chief Electoral Officer Marc Mayrand testified to a parliamentary committee in
March 2012 that it had been necessary to change 473 of Canada's more than 20,000
polling station locations during the 2011 election; voters assigned to 412 of these
locations received new voter cards by mail well in advance of election day. 73 In the
cases of the 61 polling stations whose locations had to be altered within a week of the
election, when it was too late to mail out revised voter cards, Elections Canada's policy
was to announce the new locations in the local media, and to station personnel at the
original locations on May 2 to redirect any voters still unaware of the changes.74
The claim that calls were identified as coming from the Conservative Party
seems indeed to have been true of most of the misleading pre-election day calls, and of
some of those that went out on May 2. But the vast majority of the election day calls
including robocalls in Guelph and nearby ridings whose Conservative provenance has

72

73
74

http://www.thestar.com/news/canada/conservative_scripts_misdirected_voters_in_2011_election_say_
call_centre_staff.html.
Quoted by McGregor and Maher, Emails show Elections Canada raised voter suppression concerns
before election.
Maher and McGregor, Elections Canada email trail points to growing suspicions.
See Payton, Complaints about Tory calls began 3 days before polls opened.

been definitively establishedwere misleading both in their content and in their

pretended source. These calls, purportedly coming from Elections Canada, informed
citizens, often in both official languages, that due to an unexpectedly high voter turnout
their polling station had been changed; and the false addresses that voters were given in
these calls were typically far away from the polling stations marked on their voters
cards.75
A shift from calls acknowledging their Conservative provenance to calls which
deceptively pretended to come from Elections Canada is reflected in the Elections
Canada emails. On April 29 and 30 the offending calls seemed all to come from
Conservative sources. But at 5:10 p.m. on May 1, Natalie Babin Dufresne emailed
officials who were organizing advertising in Prince George-Peace River to counter the
effects on voters of alleged Conservative and Elections Canada calls. On the next
morning, May 2, Anita Hawdur emailed a number of colleagues to say that It's right
across the country except Saskatchewan; a lot of the calls are from electoral districts in
Ontario. It appears it's getting worse. Some returning officers reported that the calls are
allegedly identifying Elections Canada.76
Most of the fake Elections Canada calls were automated, but in some cases they
were quickly followed by live calls. In Windsor-Tecumseh, for example, NDP volunteer
Andrew McAvoy received two calls in sequence, both purportedly from the number
(450-760-7746) associated with the 'Pierre Poutine' robocalls:
The first to his home phone was a recorded message telling him his
polling location had changed. Within minutes, he received a call on
his cellphone from a man claiming to be from Elections Canada.
McAvoy pressed the male for his name. The caller claimed he was
not permitted to give his name but that his Elections Canada
identification number was '1124,' [Elections Canada investigator
Allan] Mathews writes. The caller said that McAvoy's poll
location had moved to the Alzheimer Society's building. Mathews
later confirmed from returning officer Mark Moore that there was
no polling station at the Alzheimer building on Richmond Street.
75

76

For a sampling of calls of this kind described to Elections Canada officials by complainants from
Alberta and British Columbia (the majority robocalls, but some live calls), see Project Poutine:
'Elections Canada' Misdirects Voters, The Sixth Estate (30 November 2012), http://sixthestate.net/?
page_id=7208.
Maher and McGregor, Elections Canada email trail points to growing suspicions.

And he found out from Elections Canada that the 1124 number
makes no sense.77
Finally, the claim that the Conservatives were directing calls only to their own
supporters is very clearly untrue. It seemed from the outset that some care had been
taken in choosing the ridings into which the misinformation calls were sent; and it has
since been established that the calls were carefully directed in another sense as well:
their recipients were predominantly opposition-party supporters.
On election day, journalists observed that the ridings from which reports of
misinformation calls were coming seemed not to be a random set: as the Globe and
Mail's Kirk Makin wrote, The false messages appear to be clustered primarily in
ridings where close races are anticipated, meaning a small swing in voting preferences
could mean the margin between victory and defeat. 78 The early evidence suggested that
the messages were being sent for the most part into ridings in which Conservative
candidates were running hard against Liberals or New Democrats. In Winnipeg-South
Centre, for example, where Conservative Joyce Bateman narrowly defeated Liberal
incumbent Anita Neville, prospective voters began to receive the fraudulent messages
two days before the election.79 Other closely contested ridings won by the Conservatives
in which vote-suppression phone calls were reported included Kitchener-Waterloo and
Nipissing-Temiskaming, Ontario, and Elmwood-Transcona, Manitobaalthough the
pattern is in fact far from consistent: some closely contested ridings experienced no
vote-suppression calls, while calls were reported in some ridings won by Conservatives
with wide margins of victory.80
77

78

79

80

Brian Cross, Election calls 'weird,' NDP says: Robocall targeted MP's wife, The Windsor Star (1 March 2012),
http://www2.canada.com/windsorstar/news/story.html?id=48dfd7a6-1936-4e77-8b02-e0bf13dc80ec&p=1.
Kirk Makin, Messages provide false polling station info, The Globe and Mail (2 May 2011),
http://www.theglobeandmail.com/news/politics/messages-provide-false-polling-stationinfo/article2007127/.
Nevilles riding office reported that they started getting calls from voters on Saturday [April 30]
asking whether their polling stations had changed (Elections Canada warns voters over false phone
calls, CBC News [2 May 2011],
http://www.cbc.ca/news/politics/canadavotes2011/story/2011/05/02/cv-election-polling-pranks411.html).
As Chantal Hbert usefully pointed out, in Hbert: Robo-call accusations raise uncomfortable
questions, Toronto Star (27 February 2012),
http://www.thestar.com/news/canada/2012/02/27/hbert_robocall_accusations_raise_uncomfortable_qu
estions.html, expectations of a consistent correlation between close races and telephone fraud are not
borne out by the evidence. This article gives examples of ridings with narrow margins of victory that
one might have expected to be targeted, but which were not, and examples of Conservative safe
ridings where the notion that the incumbents need[ed] a dose of dark arts to hang on to their seats
seems absurd, but where calls were nonetheless alleged to have occurred.

On the other hand, clear evidence has emerged that the fraudulent calls tended
very strongly to target people identified as supporters of opposition parties. On March
15, 2012, the CBC's Terry Milewski reported the results of an investigation which
discovered that voters across Canada believed the reason they got robocalls sending
them to fictitious polling stations was that they had previously revealed they would
not vote Conservative:
Elections Canada says it never calls voters at all. However, it is
only now emerging that calls impersonating Elections Canada
followed previous calls by Conservative workers asking which
way voters were leaning. That suggests that the Elections
Canada calls, which are illegal, came from people with access to
data gathered by the Conservative Party, which carefully controls
access to it. [.]81
Noting that The pattern of legitimate so-called 'Voter ID' calls, followed by bogus
'Elections Canada' calls, occurs in ridings across the country, Milewski cited
complaints about it from St. John and Fredericton, New Brunswick; from OttawaVanier, North Bay, Mississauga-Streetsville, Guelph, Willowdale, and St. Paul's,
Ontario; and from Victoria and Mission, British Columbia.
Milewski also quoted from statements by two complainants who had traced the
'follow-up' misleading polling-station calls back to Conservative Party campaign
offices, and he noted the suspicions of opposition-party politicians:
From the outset, the Conservative Party leadership has insisted it
had no involvement in these calls. [.] However, opposition
leaders say the scheme could never have gone forward without
callers having access to the Conservatives' proprietary database
on voter intentions. Known as CIMS, the database assigns a
smiley face to supporters, and a sad face to nonConservatives. Liberal and NDP politicians say it would make no
sense to call randomly, since many of the voters misled would be
Conservatives.
Who had access to the database? Who wrote the scripts?
81

Terry Milewski, Misleading robocalls went to voters ID'd as non-Tories: Pattern of calls points to
party's voter identification database, opposition says, CBC News (15 March 2012, updated 16 March
2012), http://www.cbc.ca/news/politics/story/2012/03/15/pol-investigation-.html.

asked the NDP's Charlie Angus in question period Thursday. He

did not receive an answer.82
This discovery of a connection between voter ID calls and subsequent
misinformation calls received support in April 2012 from a survey-based study
published by Ekos Research. As Michael Valpy wrote in the Globe and Mail, Ekos said
it had found strong evidence of a targeted program of voter suppression aimed at nonConservative voters during last May's federal-election campaign.83 This study
compared responses from randomly sampled voters in seven ridings across the country
whose election results were being contested in Federal Court with those from a large
number of comparison ridings:
Ekos president Frank Graves said the survey found voters in
the seven ridings were 50 percent more likely to have received
illegitimate calls than those in 106 surveyed comparison
ridings, in many of which there have been no allegations of illegal
calls. And about three times as many Liberal, New Democrat and
Green supporters as Conservative supporters claimed they were
given false or incorrect information about polling stations in the
last two or three days of the campaign, Ekos found. [.]
The Ekos survey found a strong correlation between people
who said they indicated to political canvassers at the start of the
campaign they would not be supporting the Conservatives and
people who claimed they were called on the eve of voting day and
given false information.84
The fact that some Conservative supporters received misleading callsthough a
much smaller proportion of them than of opposition-party supportersshould come as
no surprise. Randomly distributed calls, which could be expected to reduce voter
82
83

84

Ibid.
Michael Valpy, Non-Tory voters targeted in robo-call scandal, pollster finds, Globe and Mail (23
April 2012, updated 24 April 2012), http://www.theglobeandmail.com/news/politics/non-tory-voterstargeted-in-robo-call-scandal-pollster-finds/article4104739/.
Ibid. It should be noted that the numbers of ridings whose election results the Federal Court was being
asked to overturn or nullify shrank to six when during preliminary hearings it was realized that one of
the applicants was mistaken as to which riding she lived in. In discussing this case in Chapter 5, I
therefore refer to it as involving six ridings. In Chapter 7, however, I refer both to the original Ekos
study (in which survey data from seven 'robocalled' ridings were analyzed alongside data from a large
number of other ridings unaffected, or minimally affected, by misleading calls), and also to the
comments of Federal Court Judge Richard Mosley on the six-riding data.

turnout for all parties to more or less the same degree, would of course be a waste of
effort. But it would seem amateurish to send vote-suppression calls only to opposition
voters: such a pattern might make it patently obvious who was responsible. One might
guess that astute planners of vote-suppression fraud would aim for an appropriate
adjustment of the proportions, so as to give electoral advantage to their own party while
also allowing their spokespersons to obfuscate matters by protesting that their
supporters were also being victimized.85

(iii) Conservative responsibility: the use of CIMS in Guelph

Court documents released on April 5, 2012 from the ongoing Elections Canada
investigation in Guelph, Ontario provide decisive confirmation of the linkage between
Conservative Party voter-intention data collection and the vote-suppression robocalls. It
was known by this time that the major mid-morning election-day wave of these calls in
Guelph and some other Ontario ridings had been sent out, at the instigation of someone
in Guelph who had concealed himself under the name of Pierre Poutine, from the
servers of RackNine, an Edmonton voice-broadcasting company.86
85

86

Jodi MacDonald, the Conservative campaign manager in Mississauga-Streetsville, Ontario, filed a

complaint with Elections Canada on May 2, 2011, stating that Conservative supporters called her
campaign office with reports of live calls misdirecting them to fraudulent polling locations (National
Post Staff, Measuring the impact of robocalls in the 57 ridings allegedly targeted, National Post [28
February 2012, updated 29 February 2012], http://news.nationalpost.com/2012/02/28/robocallridings/). Some other reports of Conservative victimization by the calls are not necessarily
trustworthy. Such claims were made by the Conservative campaign of Marty Burke in Guelph both on
April 29, 2011 and on election day; as will be seen in Chapter 8, the earlier claim seems dubious. A
still more improbable claim was made in late February 2012 by the Conservative MP for
Peterborough, Dean Del Mastro, who stated, when allegations of Conservative Party involvement in
the telephone fraud were being made in Parliament, that his own campaign had been victimized by
unscrupulous callers misrepresent[ing] themselves as his volunteers who had made offensive,
aggressive and late-night phone calls to local Conservative supporters. See Galen Eagle, Del Mastro
says he was victim of 'robocalls', Peterborough Examiner (27 February 2012),
http://www.thepeterboroughexaminer.com/2012/02/27/del-mastro-says-he-was-victim-of-robocalls.
NDP and Liberal spokespersons in Peterborough said they hadn't received any complaints about
harassing or misleading phone calls in the riding, and Del Mastro's own words suggest that his claim
had been hastily improvised: Del Mastro couldn't say how many complaints his office received and
wouldn't provide The Examiner with the names of those who received offensive calls. 'I will not at this
point be releasing any names other than directly to Elections Canada. I would think that would be a
betrayal of trust,' he said. 'I do know we will be able to identify some of these folks and once I do have
them identified I will be providing that information to Elections Canada.' Thus ten months after the
election Del Mastro had no list of complainants, though he thought his staff would be able to identify
some of these folks: one may be forgiven for doubting their existence.
It is important to remember that the most widely reported robocalls in Guelph, the 'Pierre Poutine'
calls that went out in a single blast from RackNine between 10:03 to 10:14, were not the only vote-

Elections Canada investigators Allan Mathews and Ronald Lamothe suspected a

linkage between the list of Guelph numbers to which the robocalls from RackNine were
sent out and the listings of non-Conservative supporters in Guelph held by the
Conservative Party's Constituent Information Management System (CIMS) database.
The court documents generated by Mathews refer to an interview he conducted
on March 9, 2012 with Conservative Party lawyer Arthur Hamilton and Conservative
central office staffer Chris Rougier: 'They say the RackNine list appears to be a list of
identified non-Conservative supporters, with data on it that was updated in CIMS [the
party's database] on April 27, 2011,' Mathews says in the documents. 87 As Glen
McGregor and Stephen Maher reported in the National Post on April 16, 2012,
[Mathews and Lamothe] are now certain the list of numbers in
Guelph that received the robocalls came directly from CIMS....
The CIMS data were compared to listings of the outgoing
robocalls provided under court order by RackNine and matched
perfectly....88
The CIMS data, let us remember, consists very largely of information collected through
voter-intention calls made by companies working on behalf of the Conservative Party.
Contrary, then, to the parliamentary bluster of the Prime Minister and other
government spokespersons, the Conservative Party was centrally involved in the
campaign of misinformation calls. That involvement was clear to Elections Canada
officials in the three days leading up to the election; and in the only riding in which it
conducted a sustained investigation, Elections Canada discovered that the list of nonConservatives to whom vote-suppression misinformation calls were sent was none other
than the most recently updated list of Guelph non-supporters held by the Conservative
Party's central database, CIMS.
As will be seen in Chapter 8, by late August 2012 Elections Canada was in
possession of still more incriminating evidence, which includes the facts that Pierre

87

88

suppression calls in Guelph on election day. Other calls with the same content were sent out at least an
hour previously, and there are reports as well of mid-afternoon calls that falsely informed voters that
their polling station had closed early. We have no information from the Elections Canada investigation
as to the provenance of these calls.
Robocalls Linked to Guelph Tory Campaign Worker's Computer, Huffington Post (5 April 2012,
updated 7 April 2012), http://www.huffingtonpost.ca/2012/05/04/andrew-prescott-pierre-poutinerobocalls-conservative_n_1478809.html.
Glen McGregor and Stephen Maher, Robocalls investigators hunt missing Tory records that could
identify Pierre Poutine, National Post (16 April 2012, updated 18 April 2012),
http://news.nationalpost.com/2012/04/16/robocalls-probe-reaches-tory-headquarters/.

Poutine and Andrew Prescott, the Deputy Manager of the Guelph Conservative
campaign, were each able on May 1 and 2, 2011 to log into RackNine sessions initiated
by the other; that on May 1, a minute after closing a RackNine session he had initiated
from a proxy server, Poutine opened another session from an Internet IP address that
was used by Prescott and four other members of the Guelph Conservative campaign for
surreptitious access to CIMS; and that on May 2, Prescott and Poutine logged onto
RackNine's servers from that same Internet IP address within four minutes of each
other.89
The suspicions of opposition leaders about Conservative responsibility were thus
well-founded. More importantly, since access to CIMS is tightly controlled and
carefully recorded, senior figures in the Conservative Party must have been aware that
someone connected to the Conservative campaign in Guelph had downloaded the list of
Guelph non-supporters from CIMS at some point between April 27, when it was last
updated, and election day, when fraudulent robocalls were sent out to the people on that
list. And since the Conservative Party has had close and sustained relations with
RackNine, the Edmonton company from whose servers the misinformation calls were
sent to voters on the CIMS list of non-supporters of the Conservative Party in Guelph,
senior party officials could have learned very easilyif they didn't already knowthat
the list of people whose votes Pierre Poutine tried to suppress had come directly from
the most recently updated version of the CIMS database.
In the face of this evidence, the denials issued in the House of Commons by
Stephen Harper, his parliamentary secretary Dean Del Mastro, and other Conservatives,
begin to look like deliberate attempts to mislead the House.

(iv) Scale and distribution of the vote-suppression calls

In ridings targeted by the end-of-campaign misinformation calls (as opposed to
those in which there were only stray or scattered reports of such calls), the intensity of
the calls varied widelyand was not necessarily commensurate with the election
89

Kady O'Malley, Court files could shed new light on the mysterious Pierre Poutine, Inside Politics
Blog, CBC News (28 August 2012), http://www.cbc.ca/news/politics/inside-politicsblog/2012/08/newly-released-court-files-could-shed-new-light-on-the-mysterious-pierre-poutine.html .

results. In Nipissing-Timiskaming, where a bemused Liberal riding president has said

that his campaign headquarters received a bizarre flood of calls from confused voters
on election day, a belated attempt to gather complaints from voters (which was launched
only after the issue gained media prominence in late February 2012) gathered twentyfive complaints about misinformation calls after rather more than a week of effort. 90
While this may suggest a less than overwhelming campaign of vote-suppression fraud,
there is strong evidence, as we will see in Chapter 9, that the misinformation calls were
a decisive factor in the very narrow Conservative victory in this riding. The Liberal
campaign's failure to respond in any way to the fraud may also have contributed to this
result.
Guelph, in contrast, was particularly hard-hitand yet the Liberal incumbent
was returned with a substantially increased margin of victory. In this riding (which will
be discussed in detail in Chapter 7), the electorate had been sensitized to issues of vote
suppression by a clumsy Conservative attempt to shut down a special poll that had been
set up on the University of Guelph campus to enable early voting by students; there had
been strong and angry exchanges between the Liberal and Conservative candidates; the
University of Guelph sent out a warning about fraudulent phone calls; and the Liberal
campaign responded promptly to the misinformation calls with Twitter messages and a
robocall of its own warning voters against the fraud.
Together with the intensity of the fraud campaign in Guelph, the fact that a
higher than usual proportion of voters were both politically aroused and informed of the
fraud may have helped to produce a dramatic result. Guelph Liberal MP Frank Valeriote
said his office was inundated with calls on election day from supporters who had
received calls telling them their polling station had changed. My office has said they
believe hundreds and hundreds of [fraudulent] calls have been made, he said in an
interview.91 A more accurate estimate would have been thousands and thousands:
according to court documents filed in March, 2012 by Elections Canada investigator
Allan Mathews, fake polling-change messages supposedly from Elections Canada were
90

91

Steven Chase and Anna Mehler Paperny, Loser of close vote weighs court action in face of robo-call
controversy, Globe and Mail (7 March 2012, updated 6 September 2012),
http://www.theglobeandmail.com/news/politics/loser-of-close-vote-weighs-court-action-in-face-ofrobo-call-controversy/article2362404/.
Sharon Kirkey, Bogus calls led voters to wrong polling stations: Prank messages affected older
voters, scrutineers said, Postmedia News/Edmonton Journal (3 May 2011),
http://www2.canada.com/edmontonjournal/news/story.html?id=c6dbcd64-d88b-43d5-9d2cc102a6878c38.

sent to 7,676 numbers in Guelph between 10:03 a.m. and 10:14 a.m. on election day,92
and other vote-suppression phone calls were also received in Guelph later in the day,
some of them from live operators, and some automated. 93 The local Elections Canada
office was also inundated with calls: Elections Canada receptionist Adele McAlpine
said on May 2 that she had received about 100 complaints by mid-morning 94a
remarkable fact, if indeed the first robocalls were sent out only shortly after 10 a.m.
There are, however, clear indications that many Guelph voters received
fraudulent poll-change phone calls long before 10:00 a.m. As Allan Mathews noted in a
court document filed on June 8, 2011, Adele McAlpine, a receptionist in the office of
Returning Officer Anne Budra in Guelph, stated that as soon as she arrived for work, at
approximately 08:50 a.m. on May 2, she was inundated with calls from voters who had
received the bogus calls, and who wanted to know more about the change of their poll
location....95 And Laurie Rotenberg, who was Central Poll Supervisor, in charge of the
four polling stations at the Old Quebec Street Mall in Guelph, reported that as soon as
the polls opened at 9:30 a.m., electors began appearing telling his staff that they had
received a phone call that their polling location had been moved to the Old Quebec
Street site, and they consequently were presenting themselves to vote.96
As with the mid-campaign harassment calls, there are signs that the nation-wide
wave of misinformation calls achieved the intended effect. It was reported on election
day that the bogus robo-calls about supposed polling-station changes had created
chaos in Ottawa;97 and according to The Globe and Mail, these calls caused

92

93

94

95
96
97

Glen McGregor and Stephen Maher, Newly revealed 'Pierre Poutine' robocall appeared to be from
Liberal: Elections Canada, National Post (23 March 2012),
http://news.nationalpost.com/2012/03/23/pierre-poutine-recorded-robocall-on-that-appeared-to-befrom-liberal-elections-canada/.
Greg Layson, Voters receive hoax calls about changes to polling stations, Guelph Mercury (2 May
2011), http://www.guelphmercury.com/news/local/article/535612--voters-receive-hoax-calls-aboutchanges-to-polling-stations. (An earlier version of this article, cited at note 99 below, and first
published on the same day and under the same title in the Kitchener-Waterloo Record, does not
contain the sentence referring to a mid-afternoon wave of automated calls telling voters their polling
stations had closed early that appears in the later Guelph Mercury version. The later version cited here
is no longer available online.)
Curtis Rush, Voters in Guelph get bogus calls about polling station changes, Toronto Star (2 May
2011),
http://www.thestar.com/news/canada/2011/05/02/voters_in_guelph_get_bogus_calls_about_polling_st
ation_changes.html.
Allan Mathews, Information to Obtain a Production Order [June 8, 2011], para. 89, p. 12.
Ibid., para. 86, p. 12.
Jo Lofaro and Jessica Smith, Polling station mix-ups vex voters, Metro (2 May, modified 3 May
2011), http://www.metronews.ca/ottawa/local/article/848864--polling-station-mix-ups-vex-voters.

widespread disruptions in at least two provinces: Ontario and B.C. 98 In Guelph,

according to a sworn affidavit filed by Elections Canada investigator Allan Mathews,
150 to 200 voters showed up at the Quebec Street Mall in downtown Guelph to
discover they were duped by a fake call. Some of them ripped up their voter information
cards in anger.99 And as we will see in Chapter 9, there is good reason to believe that
the vote-suppression calls were a decisive factor in securing for the Harper government
the parliamentary majority it had aspired to.
By mid-August 2012, Elections Canada reported having received complaints
from voters alleging specific occurrences of alleged improper telephone calls in 234
of Canada's 308 federal ridings.100 It has been widely assumed that most if not all of
these complaints referred to vote-suppression calls placed on or shortly before election
day; however, this impression may have arisen from the fact that most of the media
coverage since early 2012 has focused on those misinformation calls, rather than on the
mid-campaign harassment calls.
In March 2012, Ipsos Reid released the results of a poll conducted on behalf of
Postmedia News and Global News, and based on a random sample of 1,001 adult
Canadians interviewed by telephone and a further 2,153 interviews conducted online.
According to this poll, Four percent (4%) of Canadians, which amounts to roughly one
million adult Canadians most of whom are in Ontario, strongly agree that in the last
federal election they received a call that deliberately tried to confuse them about the
98

99

100

Makin, Messages provide false polling station info. See also Elections Canada warns voters over
false phone calls, CBC News (2 May 2011): The fictitious phone calls are also plaguing voters on
the West Coast.
Paraphrased by Glen McGregor and Stephen Maher, Abortion robocall attacking Tories in Guelph
was not voter suppression: Liberals, National Post (12 March 2012),
http://news.nationalpost.com/2012/03/12/liberals-say-abortion-robocall-not-voter-suppression/. Allan
Mathews wrote in his Information to Obtain a Production Order [June 8, 2011], paras. 87-88, that
Central Poll Supervisor Laurie Rotenberg estimated that between 150 and 200 electors presented
themselves at Old Quebec Street on the basis of the bogus phone call and were unable to vote there.
Rotenberg noted that that the Old Quebec Street site had approximately 1000 votes cast by electors
who were properly there, so the misdirected population was over 15%. He observed that many of the
misdirected voters responded with anger that a dirty trick had been played. Many were upset. Some
electors just stormed out of the polling location, several ripped up their VIC, indicating to Rotenberg
an intention not to return to their proper polling location to vote, while others reacted with a
determination to go to their proper polling station and vote. He noted a number of misdirected
electors were present with walkers, others were dropped off by friends and some with children in
strollers, so that the level of inconvenience to electors was significant.
Bruce Cheadle, Number of robocall complaints rises to 1,394, Canadian Press (21 August 2012),
available at Metro (21 August 2012), http://www.metronews.ca/news/canada/343826/number-ofrobocall-complaints-rises-to-1394; Stephen Mayer and Glen McGregor, Court documents conflict
with Election Canada's claim of sweeping robocall investigation, National Post (27 August 2012),
http://news.nationalpost.com/2012/08/27/robocalls/.

polling station at which they were to vote.101

More modest results were produced by an Ekos Research study published in
April 2012, based on the responses of a random sample of 3,297 adults in seven ridings
which were the subject of an application to the Federal Court asking for their 2011
election results to be overturned because of telephone fraud, and on a parallel survey of
1,500 adult Canadians drawn from 106 comparison ridings. Ekos found that 3.8 percent
of respondents in the seven subject ridings and 2.2 percent of respondents in the
comparison ridings reported having received calls announcing false polling station
changes.102 (The differences in sample size mean that the second figure is the less
reliable of the two; and the sample for Ekos's comparison ridings was a little less than
half the size of the sample in the Ipsos Reid study.) The authors of the Ekos report
scrupulously mention the possibility that respondents, nearly a year after the election,
might 'over-remember' receiving a misleading phone call, and that the frequency of
the calls, given recent media attention to the issue, might be overstated by disgruntled
voters who are unhappy with the current government.103
I would suggest that the Ekos figures which, if averaged, indicate a 2.3 percent
prevalence nationwide of vote-suppression calls,104 are more likely to be accurate than
the Ipsos Reid figure of 4 percent. Ipsos Reid's sampling was random, but by their own
account was focussed primarily in Ontario. I would take the difference between their
results and those of Ekos (whose comparison ridings were more widely distributed) to
indicate that the vote-suppression calls tended to be more intense in Ontario ridings, and
that Ipsos Reid made the simple error of assuming that results drawn principally from
respondents in Ontario could be extrapolated to the country as a whole.
A 2.3 percent national prevalence of vote-suppression calls would correspond,
given an electorate of some 24 million, to approximately 525,000 such calls. But what
101

102

103
104

Ipsos Reid, Four Percent (4%) of Canadians Strongly Believe they Received a Call During Election
Campaign that Deliberately Tried to Confuse Them About Where to Vote: Canadians Split on Whether
Accusations of Robo-Call Conservative Conspiracy are True (50%) or Not (47%), Northumberland
View.ca (10 March 2012), http://www.northumberlandview.ca/index.php?
module=news&func=display&sid=13679.
Ekos Research Associates Inc., A Study of the Incidence and Effects of Misleading Calls in the 41st
National Election (Ottawa and Toronto, 23 April 2012), www.ekos.com/admin/articles/FG-2012-0424.pdf, 2.3: Calls Announcing False Polling Station Changes, p. 10.
Ibid., 1.3: Key Challenges,, p. 7.
The 2.3 percent figure is obtained by averaging the results in the seven subject ridings and those
from the 106 comparison ridings. Given the large differences in sample sizes (3,297 adults in the
subject ridings and 1,500 in the comparison ridings), this figure cannot claim statistical validity; I
put it forward simply as an estimate that has a basis in widespread sampling.

about the mid-campaign harassment calls aimed at discrediting the Liberal Party?
In late November 2012, Elections Canada released information indicating that
the waves of mid-campaign harassment calls and end-of-campaign misinformation calls
were of approximately the same order of magnitude. By October 2012, the agency had
received a total of 1,900 complaints from people making specific allegations that they
had received fraudulent phone calls: 857 of these (or 45 percent of the total) were
prompted by harassment calls whose apparent purpose was to anger voters, while
1,043 (55 percent) were complaints about end-of-campaign or election-day
misinformation calls.105
Elections Canada investigator Allan Mathews mentions having consulted a
voice-broadcasting expert according to whom robocalls typically receive a one per cent
callback rate.106 Applying that rule of thumb to the total number of specific complaints
received by Elections Canada, one could estimate that a total of about 190,000
fraudulent phone calls were made during the harassment and polling-change
misdirection campaigns, and that about 104,300 of these were calls of the latter kind.
It appears, however, that Elections Canada failed to keep adequate records of the
complaints it received at the time of the election. Chief Electoral Officer Marc Mayrand,
explaining to the House of Commons Procedure and House Affairs Committee on
March 29, 2012 that only a small percentage of people who receive calls complain
about them, stated that the Pierre Poutine robocalls in Guelph had resulted in just 70
complaints to Elections Canada on or after election day. (He believed at this time that
there had been about 7,000 fraudulent calls in Guelph.)107
But the Guelph Mercury reported on May 2, 2011 that by midmorning,
according to Guelph returning officer Anne Budra, Elections Canada [...] had received
more than 100 complaints about the misleading calls; and that the downtown Guelph
105

106

107

Bruce Campion-Smith and Les Whittington, Elections Canada reveals massive robo-calls probe of
2011 election, Toronto Star (30 November 2012),
http://www.thestar.com/news/canada/2012/11/30/elections_canada_reveals_massive_robocalls_probe_
of_2011_election.html.
Stephen Maher and Glen McGregor, Investigators strike information 'gold' in Elections Canada
robocalls probe: source, National Post (15 March 2012, updated 16 March 2012),
http://news.nationalpost.com/2012/03/15/investigators-striking-information-gold-in-elections-canadarobocalls-probe-source/.
National Post Staff, Pierre Poutine made 7,000 robocalls in Guelph on election day using 450
number, National Post (29 March 2012, updated 30 March 2012),
http://news.nationalpost.com/2012/03/29/pierre-poutine-made-6700-robocalls-in-guelph-on-electionday-using-450-number/. The 70 complaints Mayrand was aware of amount to one percent of the
number of robocalls that at that time he believed had been sent out in Guelph.

police station had received another ten or twelve complaints, of which they duly notified
Elections Canada.108 The Elections Canada office in Guelph continued to receive
complaints throughout the day of the election: Anne Budra's receptionist, Adele
McAlpine, told Elections Canada investigator Allan Mathews that the volume of calls
from electors tapered off after noon, but picked up considerably again when people
began coming home from work and picked up voice mails of the bogus calls. 109 Many
voters phoned their complaints about the calls in to the office of Liberal MP Frank
Valeriote rather than to Elections Canada: Allan Mathews reported that on May 31,
2011, Valeriote's office supplied him with a list of 79 named electors who had reported
receiving bogus calls to the Liberal campaign office in Guelph on May 2, 2011; two of
these names were also in the number of individual electors who complained to
Elections Canada....110
Putting this information together, one might reasonably suppose that by the end
of May, 2011 Elections Canada should have had a list of substantially more than two
hundred complaints made on election day by voters in Guelph about fraudulent pollingstation-change calls. It comes as a shock that the figure being given out by the Chief
Electoral Officer ten months later represented rather less than one-third of the
complaints that would actually have been received.
As happened elsewhere, many people in Guelph who had received fraudulent
calls only registered complaints after the scandal began to receive wide media coverage
in late February 2012; by the end of that year, Elections Canada had tallied 235 detailed
complaints from this riding, and the total number of complaints from Guelph eventually
rose to 379.111 But many of those who had complained on election day may not have
thought it necessary to come forward a second time.
There were likewise many more fraudulent calls placed in Guelph than the 7,000
mentioned by Marc Mayrand on March 29, 2012. Elections Canada subsequently
108

109
110

111

Greg Layson, Voters receive hoax calls about changes to polling stations, Guelph Mercury (2 May
2011), http://www.guelphmercury.com/news-story/2767523-voters-receive-hoax-calls-about-changesto-polling-stations/. A similar indication of the number of complaints to Elections Canada (about 100
[...] by mid-morning), attributed this time to receptionist Adele McAlpine, was reported by Curtis
Rush, Voters in Guelph get bogus calls about polling station changes, Toronto Star (2 May 2011).
Allan Mathews, Information to Obtain a Production Order [June 8, 2011], para. 91, p. 13.
Ibid., para. 18, p. 4. The passing on of these complaints was reported by CBC News in May 2012; see
Laura Payton, Report says robocalls accounts don't match Guelph campaign, CBC News (11 May
2012), http://www.cbc.ca/news/politics/story/2012/05/11/pol-robocalls-guelph-rogers-accountnumbers.html.

determined that nearly ten percent more calls than that were sent out shortly after 10
a.m., and other calls were reported from later in the day. Some indication of the total
number of fraudulent calls in the Guelph region may be provided by the return calls that
were made by puzzled or suspicious voters in Guelph and in other nearby ridings to the
originating number that showed on their call display. (This number was not that of
RackNine, the Edmonton voice-broadcasting company that sent the calls out, but rather
that of the disposable cellphone, registered in Joliette, Qubec, from which the
messages had been downloaded to RackNine.) That originating number received 342
incoming calls from the 519 area code, which includes the riding of Guelph. Two of
these calls were from Elections Canada investigator Allan Matthews and another
Elections Canada official; apart from several unexplained calls from area codes in the
U.S., most if not all of the rest appear to have come from recipients of misleading
calls.112 If we were to apply Elections Canada's one-percent callback rule of thumb to
this figure, it could be taken to indicate that over 33,000 automated vote-suppression
calls had been sent by RackNine into this region. It is possible, however, that
information about the fraud circulated by the Valeriote campaign may have produced a
higher callback rate, which would of course give us a lower estimate of the total number
of vote-suppression robocalls.
It can be noted, in mitigation of Elections Canada's early carelessness about
keeping records of complaints, that other organizations appear to have been equally
inattentive. In Nipissing-Timiskaming, where the Liberal incumbent Anthony Rota lost
to Conservative Jay Aspin by 18 votes, Liberal riding president Bill Hagborg told Globe
and Mail reporters in early March 2012 that Liberal campaign staffers initially didn't
think much of the bizarre flood of calls they got on election day from confused voters.
In hindsight, he says, they probably should have acted more quickly. At the time of this
commenttwo weeks after reporting on the Elections Canada investigation by
Postmedia journalists Stephen Maher and Glen McGregor had brought renewed
attention to the telephone fraud scandalLiberals in Nipissing-Timiskaming had
belatedly begun to collect reports of voting-day interference, and were trying to
ensure that complaints were passed on to Elections Canada.113
112

113

Glen McGregor and Stephen Maher, Meet Pierre Poutine: The robocalls scandals prime suspect,
National Post (28 February 2012, updated 29 February 2012),
http://news.nationalpost.com/2012//02/28/documents-link-burner-cellphone-tory-candidate-withrobocall-company-racknine/.
Steven Chase and Anna Mehler Paperny, Loser of close vote weighs court action in face of robo-call

Perhaps the best that can be said, given the fragmentary and inconclusive state of
our evidence, is that a figure based solely on the 1,900 complaints recorded by Elections
Canada would significantly underestimate the scale of the fraud. The Ekos survey data
led us to estimate that there may have been some 552,000 vote-suppression calls. If we
were to propose, conservatively, that the harassment calls made up, not 45 percent of the
total (as Elections Canada's complaint records would suggest), but rather just 30 or 40
percent, we would arrive at a total figure, in round numbers, of from 789,000 to 920,000
fraudulent telephone calls.
In any event, these two waves of electoral fraud were not, as some early news
reports called them, mere pranks. Nor were they crank calls, as Marc Mayrand
called them in mid-2011 in his official report on the election.114 This was a large-scale
campaign of illegal attack politics and vote suppressiona major, nationally organized
attempt to fraudulently affect the results of a national election.
As Ian Brodie, who was Stephen Harper's chief of staff from 2006 until 2008,
wrote in an email to reporter Lawrence Martin in March 2012, the fraudulent calls are
grounds for a fking huge investigation.115
We will see in Chapter 9 that there are reasons to think that the impact of the
Conservative Party's telephone fraud may have been decisive. But beyond the phone
calls themselves, certain aspects of the context of this fraud, which provide
circumstantial evidence not just of Conservative responsibility, but also of the corrupt
mindset out of which the fraud emerged, deserve our attention. This will be the subject

114

115

controversy, Globe and Mail (7 March 2012, updated 6 September 2012). According to this report,
Nipissing-Timiskaming Liberals had collected at least 30 complaints, 25 of which referred to
automated vote-suppression calls; at that point, just two complaints had been filed with Elections
Canada.
See 'Alison', RoboConjob Disclaimer: No harm, no foul, Dawg's Blawg (26 November 2012),
http://www.drdawgsblawg.ca/2012/11/roboconjob-disclaimer-no-harm-no-foul.shtml. The reference is
to the Report of the Chief Electoral Officer of Canada on the 41st general election of May 2, 2011
(2011), http://www.elections.ca/content.aspx?
section=res&dir=rep/off/sta_2011&document=p2&lang=e, which was published in August 2011.
Quoted by Glen McGregor and Stephen Maher, Robocalls probe 'Pierre Poutine' made crank calls
outside Guelph, Postmedia News (18 March 2012),
http://www.montrealgazette.com/life/Robocalls+probe+Pierre+Poutine+made+crank+calls+outside+G
uelph/6315814/story.html. Martin, unaware that Brodie intended his comment to be off the record,
posted it at the iPolitics website. The article from which I have quoted it is no longer available on
Postmedia websites.

of the following chapter.

Chapter 4. Questions of context: Conservative Party lawbreaking and improprieties before and since 2011

The recent history of electoral improprieties of which the Conservative Party has
been a beneficiary, a perpetrator, or both at once, can provide a relevant context for the
two waves of telephone fraud that marred the 2011 federal election. In this chapter, we
will consider, in sequence, the improprieties in the 2006 election that appear to have
been instrumental in bringing the Harper Conservatives to power, two salient examples
of Conservative lawbreaking in the 2008 election that show an ongoing contempt for
legality, and finally, two instances of ongoing impropriety that suggest a continued
willingness to make use of tactics defended as acceptable by Stephen Harper and his
chief ministers, but denounced by opposition parties, and by members of Harper's own
party, as sleazy and deceptive.

(i) The 2006 election

Key events in the 2006 federal election include the RCMP's intervention with a
mid-campaign announcement that Finance Minister Ralph Goodale (hitherto regarded
as one certifiably honest member of an otherwise rather dodgy Liberal cabinet led by
Prime Minister Paul Martin) was under investigation for corruption. This was a pivotal
moment in the campaign: polls which had shown the Liberals to be on track for a
renewed minority-government mandate abruptly shifted in favour of the official
opposition: as Scott Reid observed in February 2011, the unprecedented and still
shockingly unexplored mid-campaign intervention by the-then RCMP Commissioner
[] saw an 18-point lead in Ontario for the Liberals transmute into a six-point lead for
the Conservatives within a few days.116 In February 2007, the RCMP exonerated
Goodale, but by then the election had been tipped into the hands of the Conservatives,
and Stephen Harper had been Prime Minister for a year.117
116

117

Scott Reid, Election charges undermine Harper legacy, CBC News (25 February 2011),
http://www.cbc.ca/news/politics/story/2011/02/25/pol-vp-reid.html.
See James Travers, Probe role of RCMP in last vote, Toronto Star (16 February 2008),

Further evidence of rottenness in the national police force emerged shortly

afterwards in charges that senior officers had covered up a looting of the RCMP's
pension fund.118 One might well wonder to what degree an agency which had
dishonestly turned one national election and robbed from its own officers' pensions
could be relied on to conduct an adequate investigation of fraud by the governing party
in any other national election.
Also relevant to the outcome of the 2006 general election were the Conservative
Party's flagrant violations of campaign funding regulations through the so-called inand-out scheme, which was an illegal mechanism whereby the Conservative Party
shifted national advertising money in and out of local riding campaign accounts in order
to claim it as local spending.119 Through this means, the Conservative Party violated
the Canada Elections Act, exceeding spending limits by fully $1.3 million. Scott Reid
has remarked that an additional $1.3 million to buy negative ads in the closing days of
that closely fought election might have proven consequential, and notes that the
Conservatives' twenty-one seat plurality would have been reversed if as few as 4,502
voters in 11 squeaker ridings had voted for the incumbent government rather than the
Conservative candidate (for those keeping track that's roughly $290 per vote from the
ill-gained $1.3 million victory fund).120
In April 2008, acting on a court order obtained by Elections Canada, the RCMP
in what we must take as an encouraging signconducted a search of Conservative
Party headquarters. However, there was then a delay of nearly three years. Only in
February 2011 were charges laid against the Conservative Party, against its financial

118

119

120

http://www.thestar.com/columnists/article/304195; Jack Aubry, RCMP had 'negative' impact on

Liberal campaign, National Post (31 March 2008), http://www.nationalpost.com/news/story.html?
id=412828; Richard Brennan, Greens seek probe into RCMP action, Toronto Star (11 April 2008),
http://www.thestar.com/News/Canada/articke/413524; and Guy Charron, Canada: Report
whitewashes federal police's intervention, World Socialist Web Site (22 May 2008),
http://www.wsws.org/articles/2008/may2008/rcmpm22.shtml.
See Kady O'Malley and Chris Selby, RCMP scandal deepens: Officers allege highest levels of force
involved in coverup of pension fraud, Maclean's (29 March 2007),
http://www.macleans.ca/canada/national/article.jsp?content=20070329_091523_3204; and David
Hutton, RCMP Pension Scandal: How to Stop the Rot, The Hill Times (30 April 2007), available
online at Fair: Federal Accountability Initiative for Reform,
http://fairwhistleblower.ca/news/articles/2007-0430_rcmp_pension_scandal_how_to_stop_the_rot.html.
I am quoting from Briony Penn, Robocalls and the petrostate, Focus Online (April 2012),
http://www.focusonline.ca/?q=node/355. See also A Bunch of Turds: What Really Happened in the
In and Out Scheme, The Sixth Estate (10 March 2011), http://sixthestate.net/?p=932; and Reid,
Election charges undermine Harper legacy.
Reid, Election charges undermine Harper legacy.

arm, the Conservative Fund Canada, and against four senior Conservatives: Senator
Irving Gerstein, the party's chief fundraiser; Senator Doug Finley, national campaign
director in the 2006 and 2008 elections; Michael Donison, former national party
director; and Susan Kehoe, former interim executive director.121 In November 2011,
Elections Canada and the Federal Court accepted a plea bargain, in which the
Conservative Party and Conservative Fund Canada acknowledged their accounting and
spending infractions and paid a fine of $52,000, while charges against the party
functionaries were dropped. Anthony Hall has noted that The effect of this plea
bargaining was to keep sensitive evidence from being made public in court. 122 And as
Jim Harris wrote in the Huffington Post,
The fine is a joke. The Conservatives spent $1.3 million more
than allowed to by law, won the election, and paid a penalty of
$52,000. The reward: gaining access to the levers of power and
deciding how to spend the Government of Canada's $270.5 billion
budget.
The case took five years to be resolved. By this time the
Conservatives had been in power for five years and had appointed
48 Conservatives to the Senate.
The Conservatives' strategy is clear: break the law, deny any
wrong doing, frustrate and stall any investigationwhether by
Elections Canada or House of Commons committeeand when
the final decision is about to be rendered, plea bargain and pay a
fine.123
121

122

123

Anthony J. Hall, Canada: Fixing Elections Through Fraud: On the Need for a Royal Commission on
Electoral Practices in Canada, Centre for Research on Globalization (21 April 2012),
http://www.globalresearch.ca/canada-fixing-elections-through-fraud/30447. Hall refers to Steven
Chase, Tory Senators Face Elections Charge Over Campaign Spending, The Globe and Mail (25
February 2011), http://www.theglobeandmail.com/news/politics/tory-senators-face-elections-canadacharges-over-campaign-spending/article1920146/.
Hall, Canada: Fixing Elections Through Fraud. Hall refers to Laura Payton, Conservative Party
Fined Over Breaking Elections Laws, CBC News (10 November 2011),
http://www.cbc.ca/news/politics/story/2011/11/10/pol-conservative-election-in-and-out.html.
Jim Harris, Harper Conquers Canada, One Robocall at a Time, Huffington Post (27 February 2012),
http://www.huffingtonpost.ca/jim-harris/robocalls-scandal_b_1305397.html; quoted by Hall, Canada:
Fixing Elections Through Fraud. In March 2012, evidence emerged suggesting that the Conservative
Party had revived the in-and-out scheme in Qubec during the 2011 election: Le Devoir reported
that at least two Conservative candidates in Quebec agreed to requests by the national campaign office
to pay money to RMGthe Toronto-based Responsive Marketing Groupduring the 2011 campaign
but told the newspaper they did not know exactly what services were rendered for the money. 'We
were a kind of mailbox for funding that,' Le Devoir quoted defeated Conservative candidate Bertin

(ii) The 2008 election: Gary Lunn

If the in-and-out scheme testified to an open contempt for legality on the part
of leading elements within the Conservative Party, the same refusal to accept the rules
governing electoral politics was evident again in the 2008 election. One violation of the
campaign spending-limit rules in 2008, committed by the campaign of Gary Lunn,
Minister of Natural Resources and MP for Saanich-Gulf Islands, was accompanied by a
notable act of electoral fraud that is of direct relevance to our main subject, and that was
instrumental in securing Lunn's re-election.
Gary Lunn's campaign openly flouted the Canada Elections Act's restrictions on
third-party advertisers, who are required to be at arm's length from any party's
campaign, are forbidden to split themselves into multiple groups to increase advertising
spending, and in 2008 were limited to spending $3,666 each in any one riding. Four of
the five supposedly arms' length third-party advertisers who were active in blanketing
Saanich-Gulf Islands with pro-Lunn advertising during the 2008 election campaign
shared the law office of Bruce Hallsor, the Vice-President of the Conservatives'
Saanich-Gulf Islands Electoral District Association, who had been a prominent
participant in the 2006 in-and-out scheme and who made no secret of his close
association with Lunn.124 If we can make the perhaps naive assumption that these four
purportedly third-partybut actually Conservative-Partyadvertisers respected the

124

Denis, who lost to the NDP's Guy Caron in the riding of Rimouski-Neigette-Tmiscouata-Les
Basques. 'We had nothing to say on the operations of it. [....] The funding came from the national and
we wrote a cheque.' Quoted from Bruce Campion-Smith, Robocalls: Elections Canada expands
probe into fraudulent messages in 2011 vote, Toronto Star (7 March 2012),
http://www.thestar.com/news/canada/2012/03/07/robocalls_elections_canada_expands_probe_into_fra
udulent_messages_in_2011_vote.html.
Briony Penn, whose essay Robocalls and the petrostate I am drawing on in this paragraph, was the
Liberal candidate in Saanich-Gulf Islands in 2008; she writes that at a meeting convened by
Elections Canada officials prior to the election for all candidates, their managers, agents and riding
association presidents, Hallsor was sitting next to his Conservative candidate. Penn notes that Hallsor
was also named in Elections Canada's investigation of [the] 'in-and-out-scheme' in his capacity as cochair of the Conservative campaigns in BC in 2006. For further details on Conservative
circumvention in this riding of third-party spending limits laid down by the Canada Elections Act, see
Andrew MacLeod, May vs Lunn in Saanich-Gulf Islands, Common Ground (May 2011),
http://www.commonground.ca/iss/238/cg238_May-Lunn.shtml; and Conservative Democracy
Deficit on Vancouver Island, Deep Climate (29 April 2011),
http://www.deepclimate.org/2011/04/29/conservative-democracy-deficit-on-vancouver-island/#more3387.

spending limit prescribed by Elections Canada and the Canada Elections Act, Lunn thus
benefitted from nearly $14,700 of illegal spending.
However, another irregularity in Gary Lunn's 2008 campaign is of much greater
interest, for Lunn's illegal overspending was accompanied by a wave of fraudulent
robocalls.
An opportunity for this second illegality was opened up by the withdrawal of
NDP candidate Julian West from the race, just three weeks before the election date of
October 14, 2008, in response to media reminders of a skinny-dipping incident in which
he had been very publicly involved in 1996. 125 Faced with a distinct possibility of
defeat, since most NDP supporters might be expected to shift their votes to Liberal
candidate Briony Pennand also with the fact that by the time of West's withdrawal the
ballots had already been printed with his name among the candidatesLunn, or
someone working on his behalf, decided on an audacious fraud.
For several days before the election, automated phone calls, purportedly coming
from the Progressive Voters Association of Saanich-Gulf Islands, and carrying as a
spoofed caller ID the phone or fax number of Bill Graham, the President of the NDP
riding association, went out to NDP supporters across the riding, urging them to vote for
Julian West; according to the Victoria Times-Colonist, these robocalls flooded the
riding.126
Bill Graham promptly filed a complaint with the Saanich police, and the
campaign of Liberal candidate Briony Penn sent out a press release on the evening of
October 13 urging voters to ignore the calls.127 It seems, though, that the damage had
been done. West's withdrawal had been widely publicized, with the result that a poll
taken several days before the election showed just 1 percent of voters still intending to
cast a ballot for the NDP.128 But thanks apparently to confusion induced by the
125

126

127

128

NDP candidate West quits over skinny-dipping brouhaha, Vancouver Province (23 September
2008), http://www.canada.com/theprovince/news/story.html?id=6d8dca89-db4d-4c37-90ca03b3f15c2ebc.
Saanich-Gulf Islands election tactics under microscope, Victoria Times-Colonist (30 October 2008),
http://www.canada.com/victoriatimescolonist/columnists/story.html?id=f70f8ede-0da9-45ea-a06cc47817864d55: in the days before the election, residents were flooded with taped phone messages
urging them to vote for West. See also Will Horter, Karl Rove Comes to Canada? BC Conservation
Voters (28 March 2009), reproduced at Green Party of Canada (29 February 2012),
http://www.greenparty.ca/blogs/7/2012-02-29/more-robocalls. Horter indicates that the robocalls were
sent into the riding from a call centre in the U.S.
The text of this press release was posted at 9:17 p.m. On October 13, 2008 by 'Jacques Cad' at
http://www.vibrantvictoria.ca/forum/victoria-politics-63/2008-federal-election-saanich-gulf-islandslunn-con-3081/.
Lawrence Martin, The curious case of Saanich-Gulf Islands, The Globe and Mail (1 March 2012,

robocalls, 5.69 percent of the votes cast on election day were given to this noncandidate: 3,667 voters threw their votes away, most of them fooled by the fraudulent
phone calls, and Gary Lunn was re-elected by a margin of 2,621 votes.129
This result, in which misleading robocalls appear to have raised the number of
voided votes cast by opposition party supporters by more than 4.5 percent of the total
votes, is of interest as a measure of the potential impact of misleading robocalls among
voters with no prior experience of this kind of fraud, and no timely counter-information.
Gary Lunn's 2008 re-election was, to put it mildly, problematic. The Liberal and
NDP riding associations for Saanich-Gulf Islands both sent dossiers to Elections Canada
in support of complaints about the irregularities. (The Liberals had good reason to
believe that enough of the more than 3,000 NDP votes wasted by voters who were
apparently deceived by the robocalls might have gone to their candidate to win them the
seat.) But on March 2, 2009, Elections Canada dismissed the Liberal and NDP
complaints in the following terms:
Our investigator found no one who had actually been influenced
in their vote because of the purported telephone call. Nor was he
able to identify the source of the person or persons who actually
made the calls. As a result of the foregoing, our investigation has
now been concluded.130
Continuing pressure from the Liberal riding association and from citizens' groups
produced a more categorical dismissal from Elections Canada in March 2010: In this
case, this Office examined thoroughly the complaints received and advised the
complainants that there is no evidence that the Canada Elections Act has been
contravened.131
Setting aside the question of how thorough an investigation could have been that
failed to to track any element of the robocall operation (when court orders for telephone
company records could have identified both the originating address and the phone

129

130
131

updated 10 September 2012), http://www.theglobeandmail.com/news/politics/the-curious-case-ofsaanich-gulf-islands/article550187/. By Martin's account there was a single automated phone message
which went out at dinnertime on October 13. According to Horter, Karl Rove, the pre-election
opinion poll taken just a few days before the election showed the NDP vote to be at less than 1%.... I
have been unable to find further information about this poll.
See Horter, Karl Rove; Penn, Robocalls and the petrostate; and 'Alison', RoboConjob
Disclaimer.
Penn, Robocalls and the petrostate.
Quoted by 'Alison', RoboConjob Disclaimer.

numbers to which calls were sent), or to find a single voter deceived by the robocalls
(when there appear to have been more than 3,000 such people in the riding), this
declaration is transparently false. Section 281.(g) of the Canada Elections Act would
seem to apply to the fraudulent robocalls: it specifies that No person shall, inside or
outside Canada, wilfully prevent or endeavour to prevent an elector from voting at an
election. And sections 282.(b) and 482.(b) are very clearly applicable: the latter states
that Every person is guilty of an offence who by any pretence or contrivance []
induces a person to vote or refrain from voting or to vote or refrain from voting for a
particular candidate at an election. Moreover, Conservative riding association VicePresident Bruce Hallsor appears to have violated section 351 of the act, which forbids a
third party to circumvent or attempt to circumvent spending limits by splitting itself
into two or more third parties....
The RCMP's reaction to the Saanich-Gulf Islands robocall controversy was no
less peculiar. The Victoria Times-Colonist reported on October 30, 2008 that
The RCMP response, which suggested election fraud allegations
just aren't a priority, was disturbing. [.] The RCMP maintains
no laws were broken. But lawyers disagree. It's a Criminal Code
offence to knowingly provide false information over the phone
[section 372] or to fraudulently impersonate another [section
403].132
In the face of evidence that operatives and supporters of the Conservative Party
involved in third-party advertising had violated section 351 of the Canada Elections
Act, and that the people responsible for a fraudulent robocall campaign that was
apparently decisive in Gary Lunn's re-election had violated sections 281.(g), 282.(b) and
482.(b) of the Canada Elections Act, as well as sections 372 and 403 of the Criminal
Code, the two state agencies responsible for enforcing these laws blandly abdicated that
responsibility.
One can begin to understand how senior figures in the Conservative government
may have come to develop an active interest in methods of electoral fraud involving
telephone call centres and automated robocalls.
The Conservative party had attained minority-government status in 2006 through
132

Saanich-Gulf Islands election tactics under microscope. I have added the numbers of the relevant
sections of the Criminal Code.

an election marked by the double irregularities of the RCMP's intervention and the open
cheating of the in-and-out scandal; and in the 2008 election Gary Lunn's seat had
been saved by the clever improvisation of a scheme of robocall fraud at the end of the
election campaignwhich the agencies responsible for enforcing the relevant laws had
shown no desire to investigate.
The Saanich-Gulf Islands robocall fraud may well have involved the use of the
Conservative Party's Constituent Information Management System (CIMS) in order to
target opposition party supporters, though in the absence of any proper investigation this
must remain mere speculation. One can propose with greater confidence that the parallel
failures of Elections Canada and the RCMP to investigate Conservative Party violations
of the Canada Elections Act and Criminal Code in Saanich-Gulf Islands in 2008 may
have emboldened members of the Conservative Party to think that similar tactics, more
widely applied in the next election, could bring the main prize of majority government
status within their reach.

(iii) The 2008 election: Dean Del Mastro

Another case from the 2008 election in which campaign spending limits were
violated, and which overspending was accompanied by other directly fraudulent
activities, also has links, though less directly, to the electoral fraud of 2011for Dean
Del Mastro, the MP in question, and the Prime Minister's parliamentary secretary, was
given a key role in responding to opposition questions about that scandal. (In that role,
Del Mastro set what must be an all-time parliamentary record for mind-numbingly
mechanical repetition of scripted talking points: in response to questions on March 6
and 7, 2012, he repeated the same three sentences, with minor variations, an astonishing
sixteen times.)133
Del Mastro's credibility as the lead man in the Conservatives' defence against
133

The words in question: These exaggerated allegations demean millions of voters who cast legitimate
votes in the last election. The opposition paid millions of dollars to make hundreds of thousands of
phone calls. Before continuing these baseless smears, they should prove that their own callers are not
behind these reports. See See Dean Del Mastro Crying In House, Trading Shots With Rivals
Among Memorable Moments, Huffington Post Canada (27 September 2013),
http://www.huffingtonpost.ca/2013/09/27/dean-del-mastro-crying-insults-video_n_4004135.html?
utm_hp_ref=dean-del-mastro. This item includes, under the title Stop Me If You've Heard This One,
video of Del Mastro's astonishing feat of repetition.

parliamentary questions about the telephone fraud scandal collapsed in early June 2012,
when it emerged that he was himself accused by Elections Canada of having violated
the Canada Elections Act's spending limits by a wide margin in the 2008 electionan
illegality which his campaign covered up with an act of forgery. It appeared,
furthermore, that a significant proportion of the money raised by Del Mastro's campaign
came through a reimbursement scheme arranged (in violation, it would seem, of the
Criminal Code and Income Tax Act as well as the Elections Act) through a Mississauga
construction company, Deltro Electric Ltd., owned by the MP's cousin, David Del
Mastro.
Most of Del Mastro's $17,846 overspending can be ascribed to the 25,000 to
30,000 phone calls made into his riding by Holinshed Research Group, an Ottawa call
centre, in 630 hours of workwhich Del Mastro paid for with a $21,000 personal
cheque drawn on his own bank account (thereby also exceeding the $2,100 contribution
limit imposed on candidates). His campaign tried to conceal this overspending, in part,
it appears, by forging a memo, purportedly from Holinshed, detailing a refund of
$10,000.134
In early June 2012, it emerged that further financial irregularities in Del Mastro's
2008 campaign had been organized by his cousin, David Del Mastro, the owner of a
Mississauga contracting firm, Deltro Electric: three donors to that campaign alleged that
they had been paid $1,050 by Deltro Electric Ltd. before making $1,000 donations.
They were also able to collect the tax deduction, they said. 135 (There is a 50 percent tax
deduction for a political donation of this size.) David Del Mastro rejected these
134

135

Stephen Maher and Glen McGregor, Del Mastro brushes aside demands to quit as election expense
probe goes ahead, National Post (7 June 2012), http://news.nationalpost.com/2012/06/07/del-mastrobrushes-aside-demands-to-quit-as-election-expense-probe-goes-ahead/; Glen McGregor and Stephen
Maher, Dean Del Mastro's surprise TV cameo does little to clear up Elections Canada probe,
National Post (7 June 2012), http://news.nationalpost.com/2012/06/07/dean-del-mastros-surprise-tvcameo-does-little-to-clear-up-elections-canada-probe/; Glen McGregor and Stephen Maher, Tory MP
Dean Del Mastro failed to disclose voter phone call expenses on spending report: source, National
Post (12 June 2012), http://news.nationalpost.com/2012/06/12/tory-mp-dean-del-mastro-failed-todisclose-voter-phone-call-expenses-on-spending-report-source/; Stephen Maher and Glen McGregor,
Dean Del Mastro campaign filed 'false document' to Elections Canada: sworn affidavit, National
Post (14 June 2012, updated 15 June 2012), http://news.nationalpost.com/2012/06/14/dean-delmastro-campaign-filed-false-document-to-elections-canada-sworn-affidavit/. For an illuminating
timeline of Del Mastro's irregularities, see Laura Payton, Del Mastro campaign checked limit before
stopping check, CBC News (22 June 2012), http://www.cbc.ca/news/politics/story/2012/06/19/poldean-del-mastro-timeline.html.
Glen McGregor, Dean Del Mastro: NDP, Liberals split on calling for ethics committee investigation,
Postmedia News (6 July 2012), http://o.canada.com/2012/07/06/dean-del-mastro-ndp-liberals-split-oncalling-for-ethics-committee-investigation/.

allegations, saying their source was a disgruntled former employee; 136 and in midJune 2012 Dean Del Mastro claimed to know nothing of the reimbursement allegations,
although Toronto lawyer Allan Kaufman, who is representing the alleged donors, said
he had called the MP's Parliament Hill office on June 5well before the first [Ottawa]
Citizen stories about the donationsto alert him.137
The evidence seems unambiguous. Glen McGregor and Stephen Maher have
reported that
One former employee of the company has provided a sworn
declaration describing how David Del Mastro asked employees to
recruit friends or family members to participate. The [Ottawa]
Citizen has obtained copies of two cheques from Deltro and
matching donations to the Del Mastro campaign that appear to
back up the story.138
Furthermore, Records filed with Elections Canada show that 19 people with links to
Deltro gave $1,000 each to either the Del Mastro campaign or the Peterborough
Conservative riding association.139 Those records confirm the former employee's
statement, which
listed the names of seven friends or family members of the
employee who also participated in the scheme.
The employee also listed the names of 11 Deltro employees,
their family members or friends of the owner who, Elections
Canada records show, all gave $1,000 to Del Mastro's campaign
or riding association.140
In June 2013, Del Mastro attempted to silence the investigation into his
behaviour with his trademark parliamentary bluster: he accused Elections Canada of
treating him with malice and contempt, and slandered Frank Hall, whose Ottawa call
136
137

138
139

140

Ibid.
Glen McGregor and Stephen Maher, Elections Canada refuses immunity request for donors to Dean
Del Mastro, Postmedia News (24 July 2012), http://o.canada.com/2012/07/24/elections-canadarefuses-immunity-request-for-donors-to-dean-del-mastro/.
Ibid.
Glen McGregor and Stephen Maher, 'My people are not talking to them. They're like a clam': Tory
donors won't talk to Elections Canada, lawyer says, National Post (3 August 2012),
http://news.nationalpost.com/2012/08/03/my-people-are-not-talking-to-them-theyre-like-a-clam-torydonors-wont-talk-to-elections-canada-lawyer-says/.
Glen McGregor and Stephen Maher, New evidence backs claim of questionable Dean Del Mastro
donations, National Post (27 June 2012), http://news.nationalpost.com/2012/06/27/new-evidencebacks-claim-of-questionable-dean-del-mastro-donations/.

centre had done work for Del Mastro in 2008, as a person who (among other things)
has admitted to falsifying records and reports. In a letter to the Prime Minister and the
Speaker of the House of Commons, Hall responded with dignity, calling thisas it most
certainly wasan abuse of Del Mastro's parliamentary privilege, a settling of personal
scores through character assassination, and an attempt to intimidate witnesses who
could could help Elections Canada root out election fraud.141
On September 26, 2013almost five years after the election in question
Elections Canada laid charges against Del Mastro and his campaign's official agent,
Richard McCarthy, alleging campaign overspending, spending exceeding the limit for a
candidate's own contributions, and submitting a falsified report of election expenditures.
Del Mastro, who if convicted could face imprisonment as well as a $5,000 fine,
resigned from the Conservative Party caucus. 142 But before doing so, he rose again in
the House of Commons, and mentioning his wife, his daughters and his mother (but not,
like Richard Nixon in a parallel situation, his dog), shed tears of self-pity.143 As seems to
be common in such cases, the shift from bully to (in Shakespeare's words) boy of
tears144 was abrupt.
A further investigation into the apparent kickback scheme appears to be ongoing:
in late June 2013, it was reported that the Commissioner of Canada Elections had
ordered the seizure of lists of contributors to Del Mastro's 2008 federal election
campaign have been seized by the commissioner of Canada Elections.145
The manner in which these kickback allegations have been handled by the
responsible agenciesexcluding of course the RCMP, which takes no interest in such
mattersis worth recounting in some detail. (The story might be said formally to
belong in Chapter 5, since the news of illegalities in Del Mastro's 2008 campaign
141

142

143

144

145

Bruce Cheadle, The Canadian Press, Dean Del Mastro Accused of Bullying Elections Canada
Witness, Huffington Post (17 June 2013), http://www.huffingtonpost.ca/2013/06/17/dean-del-mastroelections-canada-witness_n_3455451.html?utm_hp_ref=dean-del-mastro.
Mark Kennedy and Glen McGregor, Peterborough MP Dean Del Mastro faces charges under the
Elections Act, Postmedia News (26 September 2013),
http://www.canada.com/news/Peterborough+Dean+Del+Mastro+faces+charges+under+Elections/896
3499/story.html.
See Dean Del Mastro Crying In House, Trading Shots With Rivals Among Memorable Moments.
This item includes, under the title Why Mr. Speaker? Why?, a video of Del Mastro's lachrymose
performance in the House of Commons.
Shakespeare, Coriolanus, V. vi. 105, in The Complete Works of Shakespeare, ed. David Bevington
(6th ed., New York: Pearson, 2009), p. 1435.
MP Dean Del Mastro Donor Records Seized in Election Probe, Huffington Post (28 June 2013),
http://www.huffingtonpost.ca/2013/06/28/mp-dean-del-mastro-donor-_n_3514979.html?
utm_hp_ref=dean-del-mastro.

surfaced only in mid-2012 within the sequence of Elections Canada's post-2011-election

investigations. And yet investigative reactions since June 2012 to Del Mastro's
transgressions, while of a piece with the treatment of evidence relating to the 2011
election, might also be described as left-over business of the 2008 election, and it is
primarily for reasons of continuity that I have chosen to discuss them here.)
While the allegations against Dean Del Mastro came thick and fast in early June
2012, there seems to have been a sequence to them. First there came evidence from
Elections Canada that Del Mastro had violated the campaign spending limits by a wide
margin, and that this violation was linked to further illegalities: the personal cheque
signed by Del Mastro which far exceeded the permissible spending by a candidate on
his own behalf, and the forgery of a document in an attempt to conceal from Elections
Canada the scale of the campaign's overspending. This news appears to have prompted
people who had been drawn, perhaps unwillingly, into the fundraising reimbursement
scam to come forward as well.
On July 6, 2012, Glen McGregor reported that Elections Canada had invited Del
Mastro to give the agency
a cautioned statementmeaning that he'd be instructed on his
Charter rights against self-incrimination and told anything he says
could be used in court. The caution is a standard practice
Elections Canada investigators use when interviewing suspects to
protect their legal rights.146
When Del Mastro refused to make such a statement, the Liberal Party proposed that the
House of Commons Ethics Committee be recalled from its summer recess in order to
hear his response to the allegations about his 2008 campaign. This would have given the
matter ample publicitybut would also have conferred effective immunity for Del
Mastro on any matters he revealed in his testimony to the committee, since as Glen
McGregor noted, anything he sa[id] would be covered by parliamentary privilege and
could not be used against him in court.147
For this reason, the NDP opposed the Liberal proposal. As NDP MP and ethics
critic Charlie Angus declared, we're dealing with really serious allegations with this
apparent kickback scheme. We need to step back and not just go for the Gong Show
146
147

McGregor, Dean Del Mastro: NDP, Liberals split on calling for ethics committee investigation.
Ibid.

factor.148 Angus wrote to Justice Minister Rob Nicholson, asking him to call in the
RCMP, on the grounds that some of the allegations (which include Income Tax Act
violations and fraud over $5,000 as well as collusion to circumvent campaign
contribution limits) involve matters that go beyond the mandate of Elections Canada:
I propose that this matter be referred to the Director of Public
Prosecution (DPP) and the RCMP Commercial Crimes Unit for
further investigation and other law enforcement authorities, as
appropriate [...]. These are serious allegations involving a senior
member of your government and I trust you will ensure that the
investigation, and the laying of charges if appropriate, are done
free of any possible conflict of interest.149
In reporting on this on July 6, 2012, Glen McGregor noted that although Nicholson had
not yet responded to the letter, his office previously said the matter was for Elections
Canada to investigate.150
By July 24, 2012, a further layer of complication had been added to the story. On
that day, Glen McGregor and Stephen Maher reported that Allan Kaufman, the lawyer
representing the group who alleged that they had been implicated in the reimbursement
fraud, had received a response from Elections Canada to a letter he had written in June,
requesting immunity from prosecution for these donors in return for their testimony
about the alleged fraud. Audrey Nowack, Elections Canada's senior legal counsel, wrote
to Kaufman that (in the journalists' paraphrase) her agency
can only investigate allegations of electoral misconduct and that
the power to offer [the] immunity he requested rests with federal
prosecutors. [...] Nowack also cautioned Kaufman about allowing
potential witnesses to speak to the media.
She said it affects witness credibility and may raise questions
concerning their motives for providing information and,
consequently, may affect the [C]ommissioner [of Canada
Elections]'s assessment of and weight given to the information or
the offer to provide it.
The letter also said the commissioner's office was willing to
148
149
150

Ibid.
Ibid.
Ibid.

hear from witnesses about the allegations but could not offer any
immunity.151
After a follow-up phone call with Audrey Nowack, Allan Kaufman was
unrestrained in expressing his frustration:
He spoke to Nowack on the phone on Monday and was
surprised by her apparent lack of interest in following up the
allegations with him.
I see no indication they're going to do anything, he said.
They're going to do nothing. No immunity. No bringing in the
Crown. No interest in anything I have to say.
Kaufman said he was expecting some negotiation about
arranging the immunity for the donors but Nowack showed little
interest in following up in a phone call he described as terse and
strange.
This woman would do nothing for me. She wouldn't put a toe
in the water. She wouldn't even try to talk to me, to elicit more
information. There was no interest.152
McGregor and Maher sought further information from Elections Canada and
from Jack Siegel, whom they describe as a veteran Toronto elections lawyer.
Elections Canada spokesman John Enright confirmed that the Commissioner of Canada
Elections cannot grant immunity from prosecutionsbut his response, which otherwise
sounds like pure bureaucratese, contains an interesting twist: Possible outcomes, he
said, can range from informal resolution to a formal compliance agreement or to a
recommendation to the director of public prosecutions that charges be laid.153
A compliance agreement involves a commitment to future full compliance on the
part of someone who has violated the Canada Elections Act in a manner that the
Commissioner of Canada Elections decides is not serious enough to warrant
prosecution. Such an agreement gives a clear signal that any future violation will be
treated very seriously indeed, but it also implies, no less clearly, a commitment that the
person in question is not going to be prosecuted for the previous violation. Thus, while
the Commissioner of Canada Elections cannot formally grant immunity from
151
152
153

McGregor and Maher, Elections Canada refuses immunity request for donors to Dean Del Mastro.
Ibid.
Ibid.

prosecution to someone who has violated the Canada Elections Act, he can enter into a
compliance agreement with that personwhich amounts to much the same thing.
As McGregor and Maher noted, elections lawyer Jack Siegel thought that
Nowack's apparent insistence that potential witnesses maintain public silence seemed
odd. He also informed them that
the commissioner can negotiate compliance agreements with
people who have violated the act, which allows the office to
effectively offer immunity from prosecution. Siegel is surprised
that Nowack didn't mention that possibility in her letter....154
We are now in a position to understand Allan Kaufman's frustration with the
responses he received from Elections Canada. Audrey Nowack was indeed telling him
that Elections Canada placed little if any value on the testimony his clients were
offering to provide: they were welcome to come forward, but would risk possible
prosecution in doing so. As for her statement about immunity, it is a pure example of
bureaucratic circumlocution: it is formally, but not factually true. And since Nowack
and Kaufman must know, just as Jack Siegel knows, that it is entirely within the power
of the Commissioner of Canada Elections to offer a de facto immunity through
compliance agreements, her message was of a kind that Kaufman may well have found
provoking.
But Nowack was presumably just the messenger: we can assume that the content
of her message was determined by Yves Ct (whose tenure as Commissioner of
Canada Elections began on July 3, 2012), as one of his first acts in office. Let's reflect
on its meaning. The Commissioner had no intention of negotiating compliance
agreements with Kaufman's clients, who would therefore be incriminating themselves,
with uncertain consequences, if and when they testified. Furthermore, any attempt to
keep their allegations in public view would incline the Commissioner to entertain
suspicions both of their motives and of the information they provided.
The last part of this messagecoming as it did from a public official who was
refusing immunity and who has the power to recommend prosecutionssounds almost
like a threat.
Offers of immunity to 'the small fish' are a standard investigative tactic in
inquiries into political corruption, Mafia networks, and other forms of criminal
154

Ibid.

conspiracy.155 In this case, it seems likely that the people who donated to Dean Del
Mastro's campaign under this reimbursement arrangement, most of whom were either
employees or otherwise economically dependent on David Del Mastro's Deltro Electric
Ltd., could plausibly claim that their behaviour had involved an element of duress. But
although evidence in Elections Canada's own files supports their statements, the
Commissioner of Canada Elections appears to have been indicating, quite
unambiguously, that he would prefer them to remain silent.
On August 3, 2012, Glen McGregor and Stephen Maher reported that during the
previous week Elections Canada investigator Ronald Lamothe had contacted several of
the people who had donated $1,000 to the 2008 Del Mastro campaign. They seem, not
surprisingly, to have been unforthcoming: 'My people are not talking to them,' said
Allan Kaufman. 'They're like a clam.' Kaufman speculated that Elections Canada may
be trying to build a case without his clients' help, possibly by first obtaining a court
order for Deltro's banking records. There is no indication, however, that the agency has
taken that step.156
The story appeared to conclude, five days later, with the news that Justice
Minister Rob Nicholson had responded to NDP ethics critic Charlie Angus's letter,
stating that a referral of the allegations against Dean Del Mastro to federal prosecutors
would be inappropriate:
The Attorney General does not refer matters to the Director of
Public Prosecutions for investigation, as this would not be
consistent with the role of the DPP, Nicholson wrote, adding the
prosecution service is not an investigative body.
Agency spokesman Dan Brien confirmed that. We don't
conduct or direct investigations, said Brien. We prosecute
charges once laid by an investigative agency or law enforcement
and we provide advice to those agencies when asked.157
155

156

157

Together with witness protection programs, offers of immunity to lesser figures have been an
important part of prosecutions of Mafia bosses in the U.S., but I am thinking here primarily of Italian
prosecutions of key Mafiosi and their political allies (most notably the Christian Democrat politician
Giulio Andreotti). On this subject, see Peter Robb's brilliant and wide-ranging book, Midnight in
Sicily (1996; rpt. New York: Vintage, 1999).
Glen McGregor and Stephen Maher, 'My people are not talking to them. They're like a clam': Tory
donors won't talk to Elections Canada, lawyer says, National Post (3 August 2012),
http://news.nationalpost.com/2012/08/03/my-people-are-not-talking-to-them-theyre-like-a-clam-torydonors-wont-talk-to-elections-canada-lawyer-says/.
Stephen Maher and Glen McGregor, Justice minister won't call in federal prosecutors to investigate

Angus responded, saying in a follow-up letter

that the justice minister should intervene because potential
witnesses who have approached Elections Canada were told the
agency did not have the power to grant immunity to them in
exchange for evidence.
As you are well aware, it is federal prosecutors who have
jurisdiction for granting immunity, Angus [wrote]. The Public
Prosecution Service of Canada was set up for exactly this
purpose.158
He might as well have been whistling into a northeasterly gale.
*

Canadians might at times feel tempted to expand their political vocabulary with
a term analogous to the so-called Mexican stand-off, which as fans of Clint
Eastwood-type westerns will know is a situation in which three mutual enemies are
aiming loaded pistols at one another: barring negotiation, preternaturally quick reflexes
on the part of one gunman (but not the other two), or some outside intervention, there is
no obvious resolution. A Canadian standoff would be a loosely parallel situation in
which several agencies concerned with various aspects of the law enforcement are
confronted with serious allegations against someone with political powerwho in that
sense might be said to have the drop on all of them. Each agency bravely, or rather
brazenly, insists that some other one should take responsibility for the matterwith the
consequence that the alleged malefactor is able to tiptoe away from the conversation
and go about his further business unmolested.

(iv) Conservative Party improprieties since May 2011

There is some reason to suspect that in the wake of the 2011 election, the

158

MP Dean Del Mastro's fundraising, Postmedia News (8 August 2012),

http://o.canada.com/2012/08/08/justice-minister-wont-call-in-federal-prosecutors-to-investigater-mpsfundraising/.
Ibid.

Conservative Party decision-makers responsible for the deployment of fraudulent

robocalls may have felt further emboldened.
The Report of the Chief Electoral Officer of Canada on the 41st general election
of May 2, 2011, published by Marc Mayrand, the head of Elections Canada, in August
2011, showed no recognition that the election had been marked by serious, widespread,
and well-organized fraud. In a paragraph on On-line complaints received by the Chief
Electoral Officer, passing reference is made to harassing phone calls from alleged
representatives of political parties and candidates. A section on Electoral law
enforcement indicates that the Commissioner of Canada Elections (the officer
responsible for ensuring compliance with and enforcing the Canada Elections Act) had
received complaints about unsolicited telephone calls, automated telephone
messages, and crank calls, and indicates that the Commissioner is looking into
several complaints relating to crank calls designed to discourage voting, discourage
voting for a particular party, or incorrectly advise electors of changed polling
locations.159
Crank calls, several complaints: given what Elections Canada officials knew
on May 2, 2011that a large-scale, nationwide campaign of telephone fraud organized
by the Conservative Party was under way, and that on the same morning they had
received more than a hundred complaints about misleading phone calls from the riding
of Guelph alone160this wording must have pleased the perpetrators of the fraud no less
than it discouraged Canadians who believed that they had witnessed major violations of
democratic principles in the 2011 election.
In November 2011, the marketing research firm Campaign Research, which
worked on 39 local Conservative campaigns in [the 2011 election] and received more
than $390,000 for its services, made phone calls on behalf of the Conservative Party
to voters in Liberal MP Irwin Cotler's Montreal riding, falsely claiming there would be a
byelection because Cotler was stepping down, and inviting recipients of the calls to
support the Conservatives. When challenged on this deception, Campaign Research
feebly pretended that that [false] information wasn't in the script it provided to its
callers, who must therefore be people of unusual independence. A furious Irwin Cotler
159

160

Report of the Chief Electoral Officer of Canada on the 41st general election of May 2, 2011 (2011),
http://www.elections.ca/content.aspx?section=res&dir=rep/off/sta_2011&document=p2&lang=e.
Curtis Rush, Voters in Guelph get bogus calls about polling station changes, Toronto Star (2 May
2011), http://www.thestar.com/news/canada/article/984133--voters-in-guelph-get-bogus-calls-aboutpolling-station-changes.

asked Andrew Scheer, the Speaker of the House of Commons, to assess whether these
calls impaired his ability to carry out his duties as an MP, and thus breached his
parliamentary privileges; Scheer, while describing the Conservative strategy as
reprehensible, ruled that the matter was outside his authority.161
Conservative House Leader Peter Van Loan shamelessly defended his party's
behaviour by appealing to the principle of free speech: 'To say that one cannot
speculate on [Cotler's] future,' he said, 'that that form of freedom of speech should
forever be suppressed, is to me an overreach that is far too great.' Loan is also reported
to have declared, ludicrously, that rumours of Cotler's pending resignation have been
circulating since the Liberal was first elected in 1999. As a result, he said, saying there
were rumours of a byelection was a perfectly legitimate thing to tell constituents. 162
Cotler, a former member of McGill University's Faculty of Law and former Minister of
Justice, observed in response that free speech protections do not apply to the spreading
of falsehoods and misinformation, and noted the existence of laws against false and
misleading advertising.163
But when, a year later in late November 2012, an investigation of this episode by
the market research industry's watchdog concluded [] that the actions of Campaign
Research Inc., brought the industry into disrepute, an unrepentant Van Loan again
rejected Liberal calls for an apology, insisting in the House of Commons that It's a
settled issue.164
Although this piece of telephone fraud was confined to a single riding, it was in
another sense not an isolated incident. In mid-November 2009, the Conservative Party
had abused the parliamentary privilege of free-mail communications with constituents
by blanketing ridings in Winnipeg, Toronto, and Montral which have large Jewish
communities (including Cotler's riding of Mount Royal) with free-mail leaflets that
represented the Liberal Party as being antisemitic, soft on terrorism, and insufficiently
161

162

163

164

Who's who in the election phone calls controversy: Complaints from across Canada about robocalls
and phone harassment during 2011 election, CBC News (29 February 2012),
http://www.cbc.ca/m/touch/news/canada/story/2012/02/27/f-robocalls-players.html.
Lee Berthiaume, Conservatives admit they're behind false byelection phone calls in Liberal riding,
National Post (30 November 2011), http://news.nationalpost.com/2011/11/30/conservatives-admittheyre-behind-false-byelection-calls-for-liberal-mps-riding/.
See Most Shameful Politician of 2012: Peter Van Loan, Leftist Jab (30 December 2012),
http://www.leftistjab.blogspot.ca.
Tory pollster rebuked for misleading campaign against MP Irwin Cotler, Metro (28 November
2012), http://www.metronews.ca/news/canada/457966/tory-pollster-rebuked-for-misleadingcampaign-against-mp-irwin-cotler/.

supportive of Israel. These leaflets posed the question, next to an image of Stephen
Harper wearing a Cheshire-Cat grin: Who is on the right track to represent and defend
the values of Canada's Jewish community? When the opposition parties reacted with
outrage to this sleaze, Jason Kenney, the Minister of Citizenship, Immigration and
Multiculturalism, defended the tactic with insolent declarations that the leaflets were
merely factual.165
*

Just two months after House Leader Peter Van Loan's declaration that the Cotler
issue was settled, the Conservative Party organized a further piece of robocall
deception. On January 30, 2013, Saskatchewan residents received robocalls sent out by
a company called Chase Research, which attacked changes to the province's riding
boundaries proposed by a federal electoral boundaries commission in response to
population growth in Saskatoon and Regina. Advising citizens that the changes would
pit urban areas against rural ones,166 and would destroy Saskatchewan values,167 the
robocalls also conducted a manipulative interactive public opinion survey on the subject
a tactic known in the US as push polling.
The Conservative Party is vehemently opposed to the boundary changes, which
by altering the current arrangement of pie-shaped ridings that combine urban and rural
populations could reduce in future elections the number of Conservative ridings (the
party currently holds 13 of Saskatchewan's 14 seats). But on February 1, party
spokesman Fred DeLorey denied any involvement with the push-poll robocalls: in an
email to journalists, he wrote: We are not polling.168
165

166

167

168

See Campbell Clark, Opposition decries Tory attack ads sent to Jewish voters, Globe and Mail (19 November 2009,
updated 27 November 2009), http://www.theglobeandmail.com/news/politics/opposition-decries-tory-attack-ads-sent-tojewish-voters/article1369244/; and Tory pamphlets courting Jewish votes anger Grits: Text painting Liberals as antiSemitic sent out in Montreal, Toronto, Winnipeg, CBC News (20 November 2009),
http://www.cbc.ca/canada/montreal/story/2009/11/19/conservative-accuse-liberals-anti-semitism.html.
Steven Shrybman, I disagree with something Stephen Harper said about the Saskatchewan
robocalls, Rabble.ca (11 February 2013), http://www.rabble.ca/blogs/bloggers/stevenshrybman/2013/02/i-disagree-something-stephen-harper-said-about-saskatchewan-r.
Ex-Tory staffer linked to '11 robocalls speaks out about latest scandal, CTV News (10 February
2013), http://www.ctvnews.ca/mobile/canada/ex-tory-staffer-linked-to-11-robocalls-speaks-out-aboutlatest-scandal-1.1150811.
Glen McGregor, Conservatives deny involvement in Saskatchewan robocall defending
'Saskatchewan values': Poll is critical of changes to federal riding boundaries in strongly Tory
province, Regina Leader-Post (1 February 2013), http://www.leaderpost.com/news/canada/Conservatives+deny+involvement+Saskatchewan+robocall+defending/790692

By February 2, however, Postmedia journalists Glen McGregor and Stephen

Maher noticed that Chase Research had conducted an equally manipulative push-poll
during the 2012 Alberta electionthis one designed to favour the hard-right Wildrose
Party (aligned with the Harper Conservatives)169 at the expense of the Alberta
Progressive Conservativesand that the male voice on both sets of outgoing robocalls
was the same. They observed as well that the voice sounded very much like the voice on
the personal phone of Matt Meier, the owner of RackNine, which had sent out the
Guelph robocalls in 2011. (Chase Research, though not registered in Saskatchewan, is
listed with the CRTC as a trade name used by RackNine.) Their inquiry to Meier
elicited a flip response: Thanks for thinking of me, but your fascination is
unwarranted.170
The Ottawa Citizen and Postmedia News promptly hired a forensic voicerecognition expert, who declared himself 95-percent certain that the voice on the
outgoing messages from Chase Research was the same voice recorded in the outgoing
message on Meier's own phone. Confronted with this result on February 5, Meier
retreated into silence, and DeLorey issued a press release acknowledging his party's
responsibility for the calls: There was an internal miscommunication on the matter, and
the calls should have been identified as coming from the Conservative Party.171
Indeed they should. Canadian Radio-television and Telecommunications
Commission (CRTC) rules require that robocalls shall begin with a clear message
identifying the person on whose behalf the telecommunication is made. This
identification message shall include a mailing address and a local or toll-free
telecommunications number at which a representative of the originator of the message
can be reached.172
On February 6, 2013, Prime Minister Harper bizarrely defended the
Conservative Party's use of deceptive robocalls to rally opposition to the Saskatchewan

169

170

171
172

1/story.html.
See Dawn Walton, Alberta PCs reduce direct ties with Harper's Tories over Wildrose, Globe and
Mail (10 November 2012), http://www.theglobeandmail.com/politics/alberta-pcs-reduce-direct-tieswith-harpers-tories-over-wildrose/articles5181847/.
Glen McGregor and Stephen Maher, Tories now admit they sent Saskatchewan robocall: Forensic
expert links company behind latest push poll to firm behind Pierre Poutine calls, Ottawa Citizen (5
February 2013),
http://www.ottawacitizen.com/news/Tories+admit+they+sent+Saskatchewan+robocall/7922470/story.
html#ixzz2KQmif11t.
Ibid.
Quoted by Shrybman, I disagree with something Stephen Harper said.

federal electoral boundaries commission as part of the normal process of democratic

consultation:
Those

commissions

accept

and

expect

input

from

parliamentarians, from political parties and from the general

public, he told the Commons. We are simply operating within
the process.173
But as lawyer Steven Shrybman has observed, the Conservative deception was outside
the rules of process laid down by the CRTC:
[...] the only information identifying the source of the
Saskatchewan robocalls indicated that they originated with
Chase Research. Chase Research is listed with the CRTC as a
trade name registered by Edmonton-based RackNine Inc. [].
But while Chase Research was identified as the caller, the
robocalls were not being made on its behalf but rather on behalf
of the Conservative Party of Canada.174
More importantly, as Saskatchewan journalists have firmly declared, the
dishonest and manipulative push-poll robocalls that Harper regards with such
complacency violate the normal ethics of political behaviour.
In an editorial written before the revelation that the Conservative Party's denial
of involvement was false, the Saskatoon Star Phoenix described the robocall poll that
was meant to solicit the view that the proposed redistribution of federal constituencies
offends 'Saskatchewan values' as an odious attempt to distort public opinion for
political advantage:
Last week's manipulative poll was a disgusting attempt to
interfere with an independent riding boundary review process by
scaremongering and agitating public opinion after the commission
made its recommendations. What needs to be kept in mind is that
the electoral boundaries are drawn to serve the needs of citizens,
not MPs, their parties or other political hangers-on with vested
interests.175
173

174
175

Conservative robocalls within normal electoral review process, says Harper, Canadian Press (6
February 2013), http://www.ctvnews.ca/mobile/politics/conservative-robocalls-within-normalelectoral-review-process-says-harper-1.1145732.
Shrybman, I disagree.
Robocall tactic reprehensible, Star Phoenix (5 February 2013),

In the wake of the Conservatives' admission of responsibility, political columnist

Murray Mandryk of the Regina Leader-Post pointed to one noticeable difference
between the justifications for push polling that you're now hearing from law-and-order
federal Conservatives and what you would hear from the criminals the Tories rightly
aim to lock up. Most criminals at least go through the pretense of remorse.... 176
Mandryk claimed that in the Conservatives' repeated attempts to manipulate the federal
boundaries commission process they had presented nonsense briefs pretending that
there hadn't been much population growth and that rural and urban voters had identical
interests; and they had stacked meetings, exaggerated how many of their friendlies
had attended or presented briefs, and then claimed the meetings represented 75-percent provincewide opposition to the new boundaries.
And even when caught with their little miscommunication of
the trutheven when the Conservatives had to own up to the fact
that they were the ones responsible for the phoney and misleading
push pollingthey remorselessly did it in a way in which they
simply repeated every one of the above falsehoods all over
again.177

176

177

http://www.thestarphoenix.com/opinion/editorials/Robocall+tactic+reprehensible/7918192/story.html.
Murray Mandryk, Push polls better suited for thugs, Leader-Post (8 February 2013),
http://www.leaderpost.com/news/MANDRYK+Push+polls+better+suited+thugs/7935874/story.html.
Ibid.

Chapter 5. Enforcement Issues (1): the CRTC and Elections

Canada

(i) The CRTC

Rising in Question Period on February 7, 2013 to defend his party's
Saskatchewan robocalls for the second successive day, Prime Minister Harper insisted
that There was no violation of CRTC rules in this case, unlike [what] the Liberal Party
did in a different case. The fact of the matter, Mr Speaker, is that the party has said there
was a mistake here and we have clarified that.178
Harper was alluding to the fact that in August 2012 the CRTC had fined Guelph
Liberal MP Frank Valeriote $4,900 for a robocall sent out during the final days of the
2011 election campaign which had violated CRTC rules by failing to identify itself as
produced by the Valeriote campaign. But as Steven Shrybman has commented,
Valeriote's robocall shared this failing with the Conservatives' Saskatchewan robocalls,
while differing from them in other respects. Valeriote's call conveyed accurate
information questioning the Conservative Party candidate's position on abortion, while
the Conservative message, a partisan push-poll masquerading as public opinion
research, was described even by Conservative Deputy House Leader Tom Lukiwski, a
Regina-area MP, as deceptive. And while Valeriote admitted his campaign was
behind the call, co-operated fully with the CRTC, and paid his fine, the Conservatives
acknowledged responsibility for the Saskatchewan robocalls only after being
confronted by forensic evidence.179
178

179

Leslie MacKinnon, No wrongdoing in Saskatchewan robocalls, PM says, CBC News (7 February

2013), http://www.cbc.ca/news/politics/story/2013/02/07/pol-harper-no-wrongdoing-saskrobocalls.html.
Steven Shrybman, Saskatchewan robocalls: The Prime Minister is the pot, Rabble.ca (12 February
2013), http://rabble.ca/blogs/bloggers/steven-shrybman/2013/02//saskatchewan-robocalls-primeminister-pot. See also Stephen Maher and Glen McGregor, It's her fault: MP blames Tory political
director for 'deceptive' robocalls in Saskatchewan, National Post (6 February 2013),
http://news.nationalpost.com/2013/02/06/its-her-fault-mp-blames-tory-political-director-for-deceptiverobocalls-in-saskatchewan/. MP Tom Lukiwski is reported here as saying that Saskatchewan
Conservative MPs had no knowledge of the deceptive push-poll, which he said was the
responsibility of Jenni Byrne, the Conservative Party's director of political operations. For further
details about the Valeriote campaign's improper robocall, see Glen McGregor and Stephen Maher,
Abortion robocall attacking Tories in Guelph was not voter suppression: Liberals, National Post (12
March 2012), http://news.nationalpost.com/2012/03/12/liberals-say-abortion-robocall-not-voter-

The CRTC made its own judgment of the matter public on May 29, 2013, when
it imposed a fine of $78,000 on the Conservative Party for its January 30 Saskatchewan
robocalls. At the same time, the CRTC announced penalties for other violations of its
rules requiring that the source of robocalls be identified, with full contact information
provided, at the beginning of every call.
The two largest fines were imposed on hard right-wing provincial parties closely
connected with the Harper Conservatives: the Alberta Wildrose Alliance, and the
Ontario Progressive Conservative Party. Their fines were levied for omissions of
identification information involving push-polls, combined in the second case with
other deceptions. The Wildrose Alliance was fined $90,000 for six robocall campaigns
between March 2011 and November 2012, and the Ontario Progressive Conservative
Party $85,000 for two robocall campaigns in September 2011push-poll and
propaganda campaigns which CBC News described in misleadingly neutral language as
having been aimed at determining voter preferences and opinions.180
The Wildrose robocalls targeted the Alberta Conservative government by
inviting voters to consider such questions as what kind of tax increases imposed by the
provincial Conservatives they would prefer to endure;181 while the still sleazier robocalls
sent out by the Ontario Conservative Party included attacks on Ontario's Liberal
government falsely attributed to the NDP, deceptive suggestions that the Liberal
government intended to set up a provincial gun registry and provide easier access to
abortions, and calls which targeted a Tamil-Canadian NDP candidate in ScarboroughRouge River by threatening voters in Tamil.182
The CRTC also imposed fines of $60,000 on RackNine for 15 robocall
180

181

182

suppression/.
Meagan Fitzpatrick, CRTC slaps robocall fines on MPs, parties, telemarketer: NDP, Conservative
Party of Canada, Wildrose among parties fined, CBC News (29 May 2013),
http://www.cbc.ca/news/politics/story/2013/05/29/pol-robocalls-penalties.html.
David J. Climenhaga, Another sleazy Alberta push poll takes aim at high-riding Redford Tories,
Rabble.ca (4 February 2012), http://www.rabble.ca/blogs/bloggers/djclimenhaga/2012/02/anothersleazy-alberta-push-poll-takes-aim-high-riding-redford-t.
Keith Leslie, Robocalls also made during Ontario election, say Liberal, NDP candidates, Toronto
Star (1 March 2012), http://www.thestar.com/news/canada/article/1139031--robocalls-also-madeduring-ontario-election-say-liberal-ndp-candidates. Following the 2011 federal election, this same
riding of Scarborough-Rouge River was marked by accusations and counter-accusations between
defeated Conservative candidate Marlene Gallyot and the NDP's Rathika Sitsabaiesan, who won the
seat. Gallyot complained to Elections Canada that people without proper identification were being
allowed to vote (and were receiving coaching in Tamil outside polling stations), while Sitsabaiesan
complained in a CBC interview that she had witnessed Conservative campaign workers intimidating
and threatening voters. See Voter fraud allegations dog east Toronto riding, CBC News (13 March
2012), http://www.cbc.ca/news/canada/toronto/story/2012/03/13/voting-scarborough.html.

campaigns between March 2011 and Feb. 1, 2013 in which the identities of RackNine's
political clients had remained concealed; of $40,000 on the New Democratic Party for
robocalls made with no identification of the source between Jan. 11 and 20, 2012 in the
St-Maurice-Champlain riding, in response to the defection of MP Lise St-Denis to the
Liberal Party; of $14,400 on Blake Richards, Conservative MP for Wild Rose, Alberta,
for two robocall campaigns in his riding between August and October 2012; and of
$2,500 on Liberal MP Marc Garneau for having omitted contact information from
robocalls made during his campaign for the Liberal leadership. 183 Only two of the
organizations involvedthe federal Conservative Party, and the office of Conservative
MP Blake Richardsrefused to co-operate with the CRTC investigation.184
Two further fines for unsourced robocalls were levied by the CRTC on July 26,
2013. NDP MP Paul Dewar was fined $7,000 for a survey conducted during his
unsuccessful run for the party's leadership (the automated calls sent out by the polling
company his campaign hired did not contain the required identification information);
and Strategic Communications Inc., a company that does polling and voter contact for
the NDP, was fined $10,000 for similar violations.185
With the sole exception of Garneau's fine, all of the robocall penalties levied by
the CRTCon Wildrose, the Ontario Progressive Conservatives, the federal
Conservative Party, RackNine, the New Democratic Party, Strategic Communications,
and the MPs Blake Richards, Paul Dewar and Frank Valeriotehave been for the basic
political deception of concealing the fact that the automated phone calls in question
were generated by a political party or agency.
One can observe that the fines levied on the Harper Conservatives, adding up to
$92,400, or nearly 24 percent of the total, exceed those imposed on any other party; and
that Harper's party and closely allied organizations of the political rightthe Wildrose
183

184

185

Fitzpatrick, CRTC slaps robocall fines. As Chantal Hbert noted, in the St-Maurice-Champlain
robocalls The NDP was not identified as the sponsor of the calls and recipients were not told that if
they pressed 1 to signal their displeasure with St-Denis, they would be re-directed to her riding office
where they swamped the phone lines for a couple of days. See Hbert: Robo-call accusations raise
uncomfortable questions, Toronto Star (27 February 2012),
http://www.thestar.com/news/canada/2012/02/27/hbert_robocall_accusations_raise_uncomfortable_qu
estions.html.
James Wood and Darcy Henton, CRTC details robocalls fines, Calgary Herald (30 May 2013),
http://www.calgaryherald.com/news/alberta/CRTC+hands+robocall+fines+Wildrose+federal+Tories/8
449961/story.html.
NDP MP Paul Dewar fined $7,000 over election robocalls, Globalnews.ca (26 July 2013),
http://globalnews.ca/news/743682/mp-paul-dewar-fined-7000-by-regulator-over-election-campaignrobocalls/.

Alliance, Tim Hudak's Ontario Conservatives, and RackNinetogether account for

almost 84 percent of that total. To what must be its embarrassment, the NDP, together
with Strategic Communications, accounts for another nearly 15 percent.
The Liberal Party's offenses may seem trifling by comparison. But only the Bloc
Qubcois and Green Party can claim complete innocence in these matters. It is
encouraging to hear from Andrea Rosen, the CRTC's chief compliance and enforcement
officer, that the $391,800 in fines that have been imposed to date are not the end of the
affair: We're investigating other incidents of robocalls, she said to journalists in May
2013: Stay tuned.186
But two months later, on July 25one day before the announcement of the fines
imposed on Paul Dewar and on Strategic Communications Inc.Rosen announced that
she was retiring, as of the end of September 2013. 187 We will have to see whether her
successor, Manon Bombardier, is equally willing to punish infractions of the CRTC's
rules by people with political power.

(ii) Elections Canada

The most visible enforcement efforts of Elections Canada have been in relation
to violations of the rules governing campaign spending.
One salient case in the 2011 election was that of Peter Penashue, Minister of
Intergovernmental Affairs and President of the Queen's Privy Council, whose victory by
just 79 votes in the riding of Labrador was facilitated by multiple illegalities, among
them overspending and the acceptance of illegal corporate donations, both directly and
indirectly (in the form of free flights back and forth across the riding). Penashue
resigned his seat, repaid $30,000 in ineligible campaign donations, and then (while his
2011 illegalities were still under investigation) ran in a May 2013 byelectionin which
he was roundly defeated by the Liberal candidate.188
186
187

188

Wood and Henton, CRTC details robocalls fines.

CRTC's chief compliance, enforcement officer announces retirement, CARTT.ca (25 July 2013),
https://cartt.ca/article/crtcs-chief-compliance-enforcement-officer-announces-retirement.
Bruce Cheadle, Peter Penashue, Minister of Intergovernmental Affairs, resigns over election
misspending, Globe and Mail (14 March 2013),
http://www.theglobeandmail.com/news/politics/peter-penashue-minister-of-intergovernmental-affairsresigns-over-election-misspending/article9790307/?cmpid=rss1; Michael Woods, Tory minister Peter
Penashue resigns over election irregularities; will run in byelection, National Post (14 March 2013,

Two other Conservatives, Shelly Glover (MP for St-Boniface, a riding marked in
2011 both by harassment calls and by vote-suppression phone calls) and James Bezan
(MP for Selkirk-Interlake) had by May 2013 still not filed proper campaign spending
returns for the 2011 election. On May 23 and 24, Chief Electoral Officer Marc
Mayrand, acting in accordance with section 463.(2) of the Canada Elections Act, which
specifies that an elected candidate who fails to provide the requisite documentation
shall not continue to sit or vote as a member, wrote to Andrew Scheer, the Speaker of
the House of Commons, asking that they be suspended.189
The blatant irregularities of the MPs' returns are shocking: Glover's lists a nonitemized payment of $73,139 to the St. Boniface Conservative Association, and includes
$34,777 under other advertising, while Bezan's return lists $17,253 under the category
other, and $26,221 under amounts not included in election expenses. 190 More
shocking still is the fact that two weeks after receiving Mayrand's letters, House
Speaker Scheer (a Conservative), had failed to notify the House of Commons by tabling
the letters. Mayrand's intervention became known on June 4but it was revealed only
when Postmedia News and the Ottawa Citizen located legal documents filed by the two
MPs, who are asking judges to overturn Elections Canada's order. 191 When on June 6
Liberal MP Massimo Pacetti, rising on a question of privilege, asked the Speaker to
formally table Mayrand's letters so all MPs could read them, Scheer refused in a manner
that showed open contempt for the request:
My understanding is these types of things are made public by
Elections Canada and is even up on some website so I'm sure

189

190

191

updated 15 March 2013), http://news.nationalpost.com/2013/03/14/tory-minister-peter-penashueresigns-over-election-irregularities-will-run-in-byelection/. See also Rob Antle, Liberals take
Labrador, as Jones wins big over Penashue, CBC News (13 May 2013),
http://www.cbc.ca/news/canada/newfoundland-labrador/story/2013/05/13/nl-labrador-byelectionresults-513.html.
See John Baglow, Democracy in tatters? Dawg's Blawg (6 June 2013),
http://www.drdawgsblawg.ca. Baglow quotes the relevant section of the Canada Elections Act: An
elected candidate who fails to provide a document as required by section 451 or 455 or fails to make a
correction as requested under subsection 457(2) or authorized by 458(1) shall not continue to sit or
vote as a member until they are provided or made, as the case may be.
Stephen Maher and Glen McGregor, Elections Canada asks that two Tory MPs be suspended from
House of Commons, Postmedia News (4 June 2013),
http://www.canada.com/news/Elections+Canada+asks+that+Tory+suspended+from+House+Common
s/8476695/story.html.
Stephen Maher and Glen McGregor, Two Tory MPs under Elections Canada scrutiny should be
suspended, opposition argues: Manitoba Conservatives Shelly Glover and James Bezan improperly
filed election campaign returns, Postmedia News (5 June 2013),
http://o.canada.com/2013/06/05/conservative-party-disputed-elections-canadas-conclusions-overspending-of-two-mps/.

he'll be able to obtain a copy if he so desires, Scheer said, to

laughs from Conservative benches.192
Setting grammar and syntax aside, is it old-fashioned to expect a parliamentary
Speaker to uphold due process, impartiality, and the decorum of the House of
Commons? Legal documents from the responsible civil servant alleging violations of
the Canada Elections Act by members of Parliament are of obvious concern to all
members of the House. The only possible reason for Andrew Scheer's sneering refusal
to table these documents (or even to notify MPs of their existence) must be that they are
disadvantageous to the narrow interests of his own party.
While the cases of Glover and Bezan are intriguing for what they reveal about
Conservative Party scorn for the rules and ethics of parliamentary democracy, another
instance of financial irregularities from the 2011 election that has apparently not yet
been investigated is of far greater import.
The campaign of Conservative MP and Associate Defence Minister Julian
Fantino attracted interest in late February 2012 when it was revealed that, like the
campaigns of Marty Burke in Guelph and of two Conservative MPs in Alberta and
British Columbia, the Fantino campaign had used the services of RackNine without
listing any payments to RackNine in its campaign filings with Elections Canada. 193 A
sworn document filed by Elections Canada investigator Allan Mathews stated his belief
that the Burke campaign's filings had omitted reference to RackNine in an attempt to
conceal a customer relationship involving improper activity; 194 given that Guelph was
a nodal point in the telephone fraud, it is easy to see why a non-listing of RackNine's
services by other Conservative campaigns could arouse suspicions.
The Conservative Party explained, plausibly enough, that Fantino, a high-profile
politician, had recorded legitimate get-out-the-vote broadcasts for the party's central
campaign, which therefore had paid RackNine's bills. But after March 9, 2012, when
three former board members of the Conservative riding association in Vaughan revealed
that in 2011 Fantino's riding association had had a second, secret, and illegal bank
192

193
194

Glen McGregor and Stephen Maher, Speaker on Elections Canada eligibility documents: Look
online, Postmedia News (6 June 2013), http://o.canada.com/2013/06/06/speaker-on-elections-canadaeligibility-documents-look-online/.
McGregor and Maher, Meet 'Pierre Poutine'.
Glen McGregor and Stephen Maher, Tory campaign worker in Guelph tweeted robocall warning two
days before election, National Post (9 March 2012), http://news.nationalpost.com/2012/03/09/torycampaign-worker-in-guelph-tweeted-robocall-warning-two-days-before-election/.

account containing between $300,000 and $400,000,195 it was natural to suspect possible
links between this illegal slush fund and other kinds of campaign irregularityranging
from spending in excess of legal limits to the financing of fraudulent robocalls. What
purposes this slush fund may have been put to we do not yet know. Nor do we know
why Elections Canada's investigationif there is indeed any continuing investigation of
this matteris moving at such a glacial pace. The three former board members, Tracey
Kent, Carrie Liddy, and Richard Lorello, first filed affidavits about this matter with
Elections Canada in May and June 2011; according to a National Post report, Ms. Kent
filed a renewed affidavit in March 2012 because the three former Vaughan
Conservative association members hadn't received an answer from Elections Canada
about their inquiry from last year.196 Two years later, there is still no further news about
this case.
If we place this handling, or mishandling of Julian Fantino's apparent lawbreaking alongside Elections Canada's faltering treatment, discussed in the preceding
chapter, of Gary Lunn's 2008 robocall fraud and the allegations of multiple irregularities
in Dean Del Mastro's 2008 campaign, a disturbing pattern begins to take shape.
*

Beyond the issue of violations of the rules governing campaign financing,

Elections Canada's enforcement activities appear to have been equally uneven. We have
already encountered a prime example of this in Marc Mayrand's Report of the Chief
Electoral Officer of Canada on the 41st general election of May 2, 2011, published in
August 2011, which dismissed the telephone fraud as insignificant.
A further example is provided by CBC News's report in early March 2012 that
the complaint of former Liberal MP Joe Volpe's campaign about electoral fraud in the
Toronto riding of Eglinton-LawrenceVolpe was the first to claim there were
misleading Conservative calls to his supporters, allegedly trying to drive down his vote
195

196

Ann Dempsey, Elections Canada urged to investigate Fantino, Toronto Star (9 March 2012),
http://www.thestar.com/news/gta/2012/03/09/elections_canada_urged_to_investigate_fantino.html;
Ex-Tory riding execs question Fantino's election finances, CBC News (9 March 2012),
http://www.cbc.ca/news/politics/story/2012/03/09/pol-fantino-election.html.
Sheila Dabu Nonato, Former Conservative riding officials seek probe into Julian Fantino's election
spending, National Post (10 March 2012), http://news.nationalpost.com/2012/03/10/formerconservative-riding-officials-seek-probe-into-julian-fantinos-election-spending/.

counthad been dismissed by Elections Canada in February 2012.197

This dismissal is disturbing for two reasons. First, as I noted in Chapter 2,
harassment calls were reported in Eglinton-Lawrence from the very beginning of the
election campaign: it seems possible, then, that this riding could have been some kind of
local epicentre for a tactic that was subsequently deployed in more than twenty other
ridings. Secondly, it seems from the CBC News report that another kind of irregularity
may also have been organized in Eglinton-Lawrenceone for whose apparent success
the Elections Canada officials who presided over the riding's polling stations must bear
some responsibility.
Conservative Joe Oliver, who won the seat by 4,033 votes and is now Minister
of Natural Resources, derided Volpe as a sore loser, and dismissed his unsavoury
insinuations by pointing to his own campaign's success in increasing voter turnout. But
as the CBC's Terry Milewski has written,
documents obtained by CBC News show a late influx of
unregistered voters in the riding who got on the voters' list without
giving any address. The law requires unregistered voters to
provide both a present and former address when filling out a late
registration form at a polling station.
A stack of late registration forms shows many provided no
address [...]. Others have bogus addressesa UPS store in one
case, a Scotiabank branch in another. [....]
CBC News has learned that there were at least 2,700 late
registrations in Eglinton-Lawrence, but Elections Canada declined
a request to produce them, so it is unclear how many had phony
addresses, or none. Elections Canada said Thursday that the
documents are under seal and available only to a judge.198
When the NDP raised this matter in Question Period, Conservative Tim Uppal,
who at the time rejoiced in the title of Minister of State for Democratic Reform, offered
a double-barrelled response that provides an Orwellian coda to the story. First, Uppal
supported Elections Canada's dismissal of the complaint, declaring that Elections
197

198

[Terry Milewski], Oliver dismisses 'unsavoury' election fraud allegations: Liberal Joe Volpe called
'sore loser' for raising concerns about campaign, CBC News (8 March 2012),
http://www.cbc.ca/news/politics/story/2012/03/08/pol-milewski-eglinton-lawrence.html.
Ibid.

Canada is responsible for voter registration, not political parties.199

To call this response stupid (why then shouldn't Elections Canada investigate a
case that involves a problem with voter registrations?) would be to misunderstand its
aim: Uppal was not seeking to make sense, but to score a rhetorical point, in the highschool-debating style that has become a fixture of Question Period.
Sensing a further scoring opportunity, Uppal then swiveled 180 degrees,
proposing that Elections Canada should indeed investigatenot the complaint, but the
complainant: 'Given the history of the person making the allegations, Elections Canada
may want to take a very close look into this matter,' Uppal said. This sneer is
apparently an allusion to the fact that during the election, Volpe fired one of his
campaign workers for removing Green Party pamphlets from mailboxes 200an action
that one might think would reflect credit on him rather than the reverse.
In view of the numbers involvedOliver's election victory would remain secure
even if all of the 2,700 late registrations turned out to be illegitimateUppal's response
seems excessive. The simple explanation would be that he was speaking out of
ungoverned malice. But one may wonder whether he knows more than we do about
other matters in need of democratic reform in the Eglinton-Lawrence riding.
*

A very different stance on the part of Elections Canada seemed evident in Marc
Mayrand's testimony to the House of Commons Standing Committee on Procedure and
House Affairs in late March 2012. He called the telephone fraud that had marred the
2011 election absolutely outrageous and totally unacceptable in a modern
democracy, and announced that Elections Canada was investigating 800 specific
complaints in 200 ridings across ten provinces and one territory, with 250 files open,
including 70 on the complaints emanating from Guelph. (It may not be a coincidence
that on the same day, Finance Minister Jim Flaherty released his 2012 budget, according
to which the funding allotted to Elections Canada would be cut by $7.5 million per
year.)201
199
200
201

Ibid.
Ibid.
Happy RoboCon Election Fraud Budget Day, Creekside (30 March 2012),
http://www.creekside1.blogspot.ca/2012_03_01_archive.html.

However, the unexpected retirement in June 2012 of William Corbett as

Commissioner of Canada Elections, the official directly responsible for overseeing the
investigation of the 2011 telephone fraud, and the appointment of Yves Ct as his
successor, was seen by some journalists as a discouraging sign. Scott Taylor, the
publisher of Esprit de Corps magazine, was quietly scathing in his description to
Postmedia journalists Stephen Maher and Glen McGregor of Ct's work from 2005 to
2007 as ombudsman for the Canadian Forces:
Unfortunately he failed to maintain the same sort of profile for
the office which [his predecessor Andr] Marin had laboriously
built as the inaugural incumbent, said Taylor. While it is true
that Marin had raised the bar quite high, Ct passed well below it
during his tenure.202
Maher and McGregor commented that people familiar with Ct's career
which included service from 2007 to 2012 as Associate Minister of Justicedescribed
him as low-key and competent, safe and methodical but not a fighter. This seems a
problematic profile, for as they add, Politically dangerous investigations have a long
history in official Ottawa of posing challenges to investigators and prosecutors, and
prosecutions in the uncharted waters of telephone voter contact could put pressure on
Elections Canada. They quote Scott Taylor's expression of doubts about Ct's
willingness (in their own words) to tangle with powerful interests in the robocalls
investigation:
Given that Ct was unwilling to make waves during the
tumultuous period in which he served as the CF ombudsman, it is
unlikely he would be willing to swim upstream against the
political current in his present post, [Taylor] said.203
Depressing newsthough from what we have seen of decisions by Ct's predecessor
as Commissioner of Canada Elections, it does not seem he had any very illustrious
example to follow in that position.
One early sign of Ct's understanding of his role was provided by his refusal in
July 2012 to offer compliance agreementsassuring immunity from prosecutionto
202

203

Stephen Maher and Glen McGregor, Elections Canada robocalls proble taken over by 'low-key'
bureaucrat Yves Ct, National Post (21 June 2012),
http://news.nationalpost.com/2012/06/21/elections-canada-robocalls-probe-taken-over-by-low-keybureaucrat-yves-cote/.
Ibid.

the people who wished to provide testimony about an illegal fundraising scam organized
by Dean Del Mastro's campaign in 2008. Another was provided by a decision Ct
made on July 4, on his second day in office.
Complaints that the Conservative Party had used the American Republicanconnected voter contact and constituency outreach company Front Porch Strategies of
Columbus, Ohio, not just for activities like organizing online and telephone focus
groups during the 2011 election, but also for door-knocking and manning phone banks
in a Conservative constituency office (thus violating section 331 of the Canada
Elections Act, which prohibits involvement by foreigners in influencing voters in
Canadian elections),204 were dismissed by Yves Ct in these terms:
Offences relating to influencing electors' voting decisions are
difficult to successfully investigate and enforce. In this case, an
additional factor is that some of the relevant information or
persons are not within Canada. [....]
The information described in your complaint [...] indicates that
the activity complained of was of very limited duration, and
suggests that the purpose of the individuals' presence in Canada
may have been partly or primarily to promote their business
interests. No complaint to this office provided a basis to believe
that any elector was actually induced or affected in their voting
behavior due to the activity complained of.
It is the Commissioner's view that [] it is not in the public
interest to pursue this further.205
Section 331 of the Canada Elections Act specifies that No person who does not
reside in Canada shall, during an election period, in any way induce electors to vote or
refrain from voting for a particular candidate unless the person is (a) a Canadian citizen;
or (b) a permanent resident within the meaning of subsection 2(1) of the Immigration
204

205

Linda Diebel, Robo-calls: Tory MPs used top U.S. Republican firm during May election, Toronto
Star (3 March 2012), http://www.thestar.com/news/canada/politics/article1140344--conservative-mpsused-top-republican-firm-during-may-election.
The full text of this letter, dated 4 July 2012, 9:29 AM, is posted at Democracy Watch (12 July 2012),
http://dwatch.ca/camp/RelsJuly12Ruling.pdf. For discussion, see Kady O'Malley, Elections
Commissioner won't investigate US political consultant for hitting the 2011 campaign hustings with
two Conservative candidates, CBC News (12 July 2012),
http://www.cbc.ca/newsblogs/politics/inside-politics-blog/2012/07/elections-commissioner-wontinvestigate-us-political-consultant-for-hitting-the-2011-campaign-hustin.html.

and Refugee Protection Act. Most readers of this section would understand it to be a
prohibition against the involvement of foreigners (other than those with Canadian
residency status) in acts of political persuasion in Canadian elections.
Front Porch Strategies organized telephone town hall meetings for fourteen
Conservative campaigns which hired the firm for this apparently quite legitimate work.
However, as Front Porch Strategies social media postings revealed, company director
P.J. Wenzel and CEO Matthew Parker also involved themselves directly in campaigning
for Associate Defence Minister Julian Fantino and MP Rick Dykstra. An April 18, 2011
posting on the company's Facebook page read: Matt and PJ headed to Toronto
tomorrow to campaign for Conservative Candidates! Nothing like getting in the
trenches with terrific people who are going to make a difference once elected. An April
19 posting included a photograph of Parker, telephone in hand, going over what appears
to be a voter contact list, with a caption: Matt lending a hand for MP Fantino here in
the greater Toronto area (GTA). This was supplemented on April 20 by a Twitter
comment from the company's account, @FPStrategies: Knocking doors for MP Rick
Dykstra. People don't like liberals here! A subsequent tweet, on May 2, declared that
Front Porch is on the front lines as Conservatives are taking over Canadian
Parliament!206
A spokesperson for Front Porch has claimed that Wenzel and Parker were only in
Canada for two days, and did brief incidental volunteerism while fishing for new
clientssuccessfully in the case of Dykstra, unsuccessfully in Fantino's case. 207 But
whatever the truth of this, the Commissioner of Canada Elections regards inducement as

having

occurred only if a voter or voters could be shown to have voted differentlyand further,
appears to be demanding that complainants provide evidence of such a change in voting
behaviour before his office will undertake to investigate violations of the law.
This interpretation of Section 331 seems dubious. Bribery, the offering of a
financial inducement or any other kind of valuable consideration with the aim of
securing corrupt behaviour in return, is a crime; and a conviction on a charge of bribery
206

207

David P. Ball, Tories may have broken 2011 election rules with US Republican campaigners in
Ontario, Vancouver Observer (9 April 2012),
http://www.vancouverpbserver.com/politics/2012/04/09/republicans-ground-canada-helped-electharpers-tory-government.
Ibid.; see also Greg Weston, Conservative MPs used U.S.-based telemarketers, CBC News (2 March
2012, updated 3 March 2012), http://www.cbc.ca/news/politics/story/2012/03/02/pol-weston-electioncalls.html.

can be obtained without having to show that the bribe was accepted or that people were
induced by the offer of a bribe to alter their behaviour.208 It is not clear why a
prohibition of electoral inducement by foreigners should be interpreted differently.
Democracy Watch, in its response to the Commissioner's ruling, argued that
the legally correct definition of [Section 331] is that induce also
includes trying to persuade someone to vote one way or another
(or not to vote), especially given that the heading of section 331
reads Non-Interference by Foreigners and the sub-heading is
Prohibition inducements by non-residents. Interference of
course includes any act of interfering whether or not it is
successful, and inducement is defined in the dictionary as: the
act of reasoning or pleading with someone to accept a belief or
course of action (e.g. Gave up smoking only after prolonged
inducement by all the other family members).209
The Commissioner's interpretation leads him to demand that any complainant
provide him with a basis to believe not just that foreigners engaged in acts of political
persuasion in a Canadian election, but also that those acts induced voters to change their
prior intentions and vote in the manner urged by the foreigners. But this demand for
evidence of prior intentions and voting behaviour is hard to reconcile with the
protection of voting secrecy laid out in sections 163 and 164.(1) of the Canada
Elections Act.
*

At the end of August 2012, renewed concerns about the apparent sluggishness of
208

209

Section 120 of the Criminal Code deals with the bribery of police or court officers. Subparagraphs (a)
(i), (ii), and (iii) of this section define the corrupt actions bribery would seek to produce; paragraph (b)
defines as an indictable offence the act of corruptly giv[ing] or offer[ing] to a police or court officer,
or to anyone for the benefit of that person, any money, valuable consideration, office, place or
employment with intent that the person should do anything mentioned in subparagraph (a)(i), (ii) or
(iii). The briber is guilty of an indictable offence if an inducement has been offered with the intent of
producing the corrupt actions that are listed; there is no need to show that the inducement was
accepted, or that it produced the corrupt behaviour desired by the briber. By analogy, section 331 of
the Canada Elections Act would not support the very restrictive interpretation given to it by the
Commissioner of Canada Elections.
News Release: Ruling by Commissioner of Canada Elections much too narrowly interprets key
Canada Elections Act measures that prohibit influence of voters by foreigners, and uses invalid
excuses for not investigating, Democracy Watch (12 July 2012),
http://dwatch.ca/camp/RelsJuly1212.html.

Elections Canada's investigation were expressed by Maher and McGregor, who wrote
that Elections Canada has reported it is investigating reports of fraudulent and
deceptive calls across Canada, but court documents made public Monday [August 27]
show investigators have not sought phone or Internet records for any calls beyond
Guelph, Ont., raising a question about how vigorously the agency is looking into reports
from voters.210
Anxieties of this sort may have abated in late November 2012, when Elections
Canada announced that it is pursuing a massive investigation in five separate provinces
of robo-calls that may have caused voters to go to the wrong polling station or not vote
at all in the May 2, 2011 election. Newly released documents show the probe of voter
suppression calls has expanded to encompass 56 of the country's 308 federal ridings.211
It remains to be seen how sustained this investigation really is, and how
adequately Elections Canada makes use of the phone records and other documents it
obtains. A single case of investigation and enforcementor rather, as it happens, of
non-investigation and non-enforcementmay suggest that there remain genuine
grounds for concern about the effectiveness of Elections Canada's investigation.
We can enter this case by means of an apparently trivial judgment by an
Elections Canada investigator, dating from late 2011, which turns out to be related to
another much more important matter, which will be explored in Chapter 6.
In late February 2012, a report published by CTV News described the apparently
rather langorous way in which one complaint about telephone fraud had been handled:
An example of robocall-related complaints lodged with
Elections Canada was obtained by The Canadian Press, in which
a Waterloo, Ont. voter said she had received a phone call
instructing her to vote at the wrong polling station.
Unlike similar calls in nearby Guelph, documents show the
Conservatives belatedly admitted they were responsible for the
210

211

Stephen Maher and Glen McGregor, Court documents conflict with Election Canada's claim of
sweeping robocall investigation, National Post (27 August 2012),
http://www.news.nationalpost.com/2012/08/27/robocalls/.
Bruce Campion Smith and Les Whittington, Elections Canada reveals massive robo-calls probe of
2011 election, Toronto Star (30 November 2012),
http://www.thestarcom/news/canada/2012/11/30/elections_canada_reveals_massive_robocalls_probe_
of_2011_election.html. See also Stephen Maher and Glen McGregor, Elections Canada gets phone
records in 56 ridings in vote-suppression probe, Ottawa Citizen (29 November 2012),
http://www.ottawacitizen.com/news/Elections+Canada+gets+phone+records+ridings+vote+suppressio
n+probe/7630448/story.html.

call, describing it as an error.

Responding to the complaint, Elections Canada investigator Al
Mathews said the Conservatives took responsibility for the
misleading call and chalked it up to an innocuous error.
Elections Canada dropped the Waterloo investigation after the
voter said she didnt want to explore the incident further.212
In view of the evidence available to Elections Canada officials by May 2, 2011 that the
Conservative Party was suppressing voter turnout across Canada with fraudulent
telephone calls sending people to nonexistent polling stations, Allan Mathews'
acceptance of the Conservatives' view that this particular fraudulent call was an
innocuous error may seem surprising.213 And since when is it up to individual citizens
to decide whether or not violations of the Canada Elections Act are to be investigated
and prosecuted?
However, another report of the same incident outlines the information on which
Mathews based what might now seem a sensible decision:
Last December, the Conservative Party spokesman Fred
DeLorey, responding to a story in the Waterloo Region Record
about a voter having been told to go to a wrong poll in a local
riding, confirmed the call came from a call centre that we hired
for the campaign, using a line clearly labelled as belonging to the
Conservative Party.
In that case, the party said it was the result of a mistake
because the voter named was in our database twice with the
same phone number for two different riding profiles.
The call was made by RMG [Responsive Marketing Group,
Inc.], which was one of our companies hired to do calling by
Kitchener Centre and the Party, DeLorey said. Because she was
listed as living in Kitchener Centre she was instructed to vote in a
polling station in Kitchener Centre. We made over a million calls
212

213

Rae accuses Tories of dirty tricks in robocall scandal, CTV News (25 February 2012),
http://m.ctv.ca/topstories/20120225/elections-canada-false-election-call-120225.html.
The wording is ambiguous: perhaps we are to understand that it was Mathews who chalked it up to
an innocuous error. The outcome, in either case, is the same: Mathews accepted the Conservatives'
explanation of what had happened.

on Election Day. In this case there was a mistake.214

Plausible though it seems, this explanation may prompt critical reflections. We
can remember that prior to the election, as Postmedia journalists Stephen Maher and
Glen McGregor reported, Elections Canada had asked the parties not to communicate
information about polling station locations to voters. 215 The statement made by
Conservative Party lawyer Arthur Hamilton on May 29, 2011 that I quoted in Chapter 3
avoided acknowledging that any such information was imparted by people calling on
behalf of Conservative candidates (though his wording may imply that it was), and
firmly denied that any indications of changed polling station locations were given out. 216
But Fred DeLorey's subsequent statements (also quoted in Chapter 3) admit that the
calls gave voters information about different polling station addresses. In February 2012
he stated that When [our supporters] told us their poll was in a different location than
was in our system, we would tell them that Elections Canada may have changed it, and
give what we thought was the right address; 217 and in November 2012 he said that our
script read that 'Elections Canada has changed some voting locations at the last moment.
To be sure could you tell me the address of where you're voting?' 218 However,
Conservative spokespersons have consistently claimed that calls made on their behalf in
the closing days of the election were get-out-the-vote calls directed exclusively to
people previously identified as Conservative Party supporters.
DeLorey's statement that the call came from a line clearly labelled as belonging
to the Conservative Party is borne out by the complainant's indication that The caller
214

215

216

217

218

Tonda MacCharles, Conservative scripts misdirected voters in 2011 election, say call centre staff,
Toronto Star (27 February 2012), http://www.thestar.com/.../1137273-conservative-scriptsmisdirected-voters-in-2011-election-say-call-centre-staff?bn=1. (The newspaper to which MacCharles
refers is the Record, also known for many years as the Kitchener-Waterloo Record. The name she
gives it appears to come from the fact that the story in question is identified, prior to the lead sentence,
as a Waterloo Region or local story. DeLorey's name is here spelled Delorey; I have altered it to
the spelling that appears in all other sources.)
Stephen Maher and Glen McGregor, Elections Canada gets phone records in 56 ridings in votesuppression probe, Ottawa Citizen (29 November 2012),
http://www.ottawacitizen.com/news/Elections+Canada+gets+phone+records+ridings+vote+suppressio
n+probe/7630448/story.html.
The calls being made by our candidates request the voter to confirm his or her polling location [].
There is no indication by the caller that the location may have changed or words to that effect. And no
voter is being directed to a polling location one and a half hours away from the correct polling
location. Arthur Hamilton, email of May 29, 2011, quoted by McGregor and Maher, Emails show
Elections Canada raised voter suppression concerns.
Quoted by Tonda MacCharles, Conservative scripts misdirected voters in 2011 election, say call
centre staff, Toronto Star (27 February 2012),
http://www.thestar.com/news/canada/conservative_scripts_misdirected_voters_in_2011_election_say_
call_centre_staff.html.
Quoted by Maher and McGregor, Elections Canada email trail points to growing suspicions.

identified himself as representing Stephen Harper.... 219 But the person who received
this call from Responsive Marketing Group, Carolyn Siopiolosz, seems not to have been
a Conservative Party supporter. Ms. Siopiolosz told the Kitchener-Waterloo Record that
she has no party affiliation. She has often voted Liberal in the past, but says when it's
time for a change, she can vote the other way. But in this case, she contacted her riding's
federal Liberal association, which filed its own complaint with Elections Canada. 220
Ms. Siopiolosz's history of voting Liberal, together with the fact that she reacted to a
dubious call telling her she was to vote at a site nearly ten miles southeast of her home
in St. Clements by contacting her riding's federal Liberal association, suggests that she
would have been listed in the Conservative Party's databasewhether under one
address or twoas a non-supporter, rather than a Conservative Party supporter.
It seems distantly possible that there could have been two errors in the
Conservative Party database: one error in Carolyn Siopiolosz's inclusion in the list of
Conservative supporters, and a second one in the peculiar form of double-entry datakeeping that led to her being recorded as living at two addresses in two adjoining
ridings but with the same telephone number. (But wouldn't that second error be of a
kind that could be quickly corrected in a live call, during which the voter could have
explained that she lived not in Kitchener, but in St. Clements, some miles northwest of
the linked cities of Kitchener-Waterloo? No incorrect polling station information would
then have been given by the operator, and there would have been no reason for a
complaint.)
It is perhaps more likely that there was no error at all. Perhaps Ms. Siopiolosz
was correctly listed in the CIMS database as a non-supporter, and perhaps she was the
recipient, not of an innocent get-out-the-vote call, but of a deliberately deceptive votesuppression call. She apparently believed that the call was fraudulent, and hung up on
the caller once she became suspicious.221 In this case the two-address story would be,
219

220

221

Quoted by Jennifer Ditchburn, Alleged crank call just an honest mistake, Tories say, Globe and
Mail (20 December 2011), http://www.theglobeandmail.com/news/politics/alleged-election-crankcall-just-an-honest-mistake-tories-say/article548388/.
A. Csanady, MP Albrecht pledges investigation after 'crank' election calls traced to Tory office,
Kitchener-Waterloo Record (20 December 2011), http://www.therecord.com/news-story/2594153-mpalbrecht-pledges-investigation-after-crank-election-calls-traced-/. According to this story, Ms.
Siopiolosz also contacted Elections Canada.
See Steve Rennie and Bruce Cheadle, Elections Canada on misleading Tory call: 'Inaccuracies can
occur', Globe and Mail (24 February 2012),
http://www.theglobeandmail.com/news/politics/elections-canada-on-misleading-tory-callinaccuracies-can-occur/article2349526/singlepage/#articlecontent.

like some of the other information Mr. DeLorey was given by his central office
colleagues to retail to the public, no more than a fiction.
As we will see in Chapter Six, this possibility may be given added weight by the
identity of the company whose operator made this call, Responsive Marketing Group.

Chapter 6.

Enforcement Issues (2): Responsive Marketing

Group and Annette Desgagn

Responsive Marketing Group (RMG), which has central offices in Toronto and
Washington, DC, and Canadian call centres in St. John's, Newfoundland; Miramichi,
New Brunswick; Gatineau, Qubec; and Thunder Bay, Ontario, is a company with
intimate ties to the Harper Conservativesfor whom RMG took a leading role in
developing the Conservative Party's formidable CIMS system. 222 In April 2009 Preston
Manning, founder of the Reform Party (which in 2003, as the Alliance Party under
Stephen Harper's leadership, had absorbed the former Progressive Conservative Party
and renamed itself the Conservative Party), presented RMG and its CEO, Michael
Davis, with the Manning Centre Pyramid Award for Political Technology. In the words
of RMG's own website, the award was given in recognition of RMG's role in helping
to build the conservative movement in Canada. Since its inception, RMG has raised
more than $75 million for right of centre causes and helped to elect hundreds of 'right of
centre' politicians at municipal, provincial and national levels.223
According to Postmedia journalists Stephen Maher and Glen McGregor, RMG
bills the Conservative Party for between $10 and $15 million every year; 224 and
Elections Canada records show RMG worked on 97 individual Conservative candidate
campaigns in the last election, billing $1.4 million. (The amount RMG may have been
paid for working on the Conservatives' national campaign is unknown, since disclosure
rules do not require the party to detail its suppliers.)225
222

223

224

225

I am quoting here from Anthony Hall, Canada: Fixing Elections Through Fraud. My comments on
the allegations that RMG was involved in telephone fraud in the 2011 election are indebted to Hall's
treatment of the subject.
RMG Receives Manning Centre Pyramid Award for Political Technology, RMG: Relationships &
Results (7 April 2009), http://www.rmgsite.com/news.php#ZIGpZm; quoted by Hall.
Stephen Maher and Glen McGregor, Firms linked to voter confusion take an aggressive stance
against bad press, Ottawa Citizen (9 March 2012),
http://www.canada.com/business/firms+linked+voter+confusion+take+aggressive+stance+against+pre
ss/6273601/story.html?id=6273601; quoted by Hall. This story, which appeared in newspapers
throughout the Postmedia chain, has been deleted from all Postmedia websites.
Glen McGregor and Stephen Maher, Conservative call centre company has checkered legal history in
U.S., Ottawa Citizen (1 March 2012),
http://www.ottawacitizen.com/business/Conservative+call+centre+company+checkered+legal+history
/6237333/story.html; quoted by Hall. As Hall explains, this article has been deleted from all
Postmedia sites due to legal threats from RMG.

(i) Annette Desgagn, whistleblower

It was therefore front-page news when, on February 27, 2012, Tonda
MacCharles of the Toronto Star revealed that three former employees of RMG's
Thunder Bay call centre were alleging that
Callers on behalf of the federal Conservative Party were
instructed in the days before last year's election to read scripts
telling voters that Elections Canada had changed their voting
locations [].
These weren't robocalls, as automated pre-recorded voice
messages are commonly known. They were live real-time calls
made into ridings across Canada, the callers say.
However, one employee was so concerned that something was
amiss she says she reported it to her supervisor at the RMG site,
to the RCMP office in Thunder Bay and to a toll-free Elections
Canada number at the time.
Annette Desgagn, 46, said it became clear to herafter so
many people complained that the new voting locations made no
sense or were way the hell across townthat the live operators
were, in fact, misdirecting voters.
She says she has no way of knowing whether in fact the poll
station locations she gave listeners were wrong addresses or
phony locations. But she said the feedback elicited by the script
was so negative, we started getting antsy.226
Desgagn's recollection was largely corroborated for Tonda MacCharles by
two other former RMG employees, neither of whom wanted to be named. One of these
two (or possibly another former RMG employee) also spoke with Allison Cross of the
National Post:
226

Tonda MacCharles, Conservative scripts misdirected voters in 2011 election, say call centre staff,
Toronto Star (27 February 2012),
http://www.thestar.com/news/canada/2012/02/27/conservative_scripts_misdirected_voters_in_2011_e
lection_say_call_centre_staff.html; quoted by Hall.

We would call these (voters) and they would say 'we went
there and that's not a real place,' said a woman, who worked for
Responsive Marketing Group Inc. as a call operator, and asked
not to be named.
The whole call centre (noticed it was happening).
We called the RCMP, she said. We actually also told our
supervisor about it.
But no action was taken at the call centre and employees were
told to stick to the script, the woman said.227
On the following day, Annette Desgagn gave her own account of her work in
the days leading up to the May 2, 2011 election in an interview on CBC Radio's
program The Current. After explaining that she was involved first in making voteridentification calls, and then get-out-the-vote calls, she was asked by the program's host,
Anna Maria Tremonte, when she began to have concerns. Desgagn indicated that it
was
[...] in the end when we did get a script that said, um, Elections
Canada has changed some of the voting locations and we just
want to confirm; [it] was within that day that we started making
those calls that we started getting O really, who are you? and
How come you're calling? Um, some people very directly said
to us, you know, Where is that? and then they would look it up
on a map or google it and go, Why is it way over there? you
know, and How come they're doing it? and then
Tremonte. They would do that while you were on the phone?
Desgagn. Some of them would, and you know, some of them would
say, OK, just tell me, I don't have my card with me, so just tell
me, I'll write it down; and then when we'd give them the address,
they're going, O that's like way across town, how come? And
then you started to feel like, Whoa, this is not really the
information, is it? And then, you know, you've got co-workers
beside you, and you can hear them saying, Well, I'm not sure,
227

Allison Cross, I made misleading election calls claiming to be from the Tories: Call Centre Workers
Speak Out, National Post (27 February 2012), http://news.nationalpost.com/2012/02/27/i-mademisleading-election-calls-for-the-tories-call-centre-workers-speak-out/; quoted by Hall.

ma'am, that's just, you know, the name and the address that's
coming up on my screen. And then that started to happen like all
too often, and you can almost feel like a little bit of a buzz going
on, and people were sort of defending their calls and stuff like
that. Definitely I felt like I was being questioned (a) as to who
really I am. Some people made very directly, I went all the way
out there, and that's not the place.228
Asked what she did at that point, Desgagn replied that she and other callers
requested their supervisor for further direction, saying that we're getting the
responses that this is not really the right information; they were instructed to give
people a phone number that was posted on a board in the calling centre, and to keep on
with the calls.229
The full import of what she had been involved in struck her only after the end of
a work shift:
Tremonte. Now do I understand correctlyyou did get concerned
enough to call the RCMP?
Desgagn. When you're amongst it all, and you can't really identify
what it is that's going on, and I know that I didn't really identify,
you know, that something was really really wrong, and then at the
end of my day I was driving home and I could hear on the radio,
all these robocalls and misdirecting people, and it sort of brought
me back to what was going on for myself, and I'm going, Whoa,
but these aren't robocalls, we are live people. Um, and sort of
like, one plus one, and I went, ya, you know what, and this is
something that needs to be looked at a little further. I don't know
what's going on but it just does not feel right, and if it is wrong I'd
like to at least say something.
Tremonte. So, you called
Desgagn. Well, my sister and I, we both worked there, yes, we did
make some calls. We did call the RCMP, uh, I didn't know where
228

229

CBC Radio: The Current (28 February 2012), http://www.cbc.ca/thecurrent/episode/2012/02/28/robocalls-voters-misled-during-federal-election/; my transcription from the podcast. I have used italics to
mark emphatic speech.
Ibid.

to call, to be honest with you, and we were just thinking, ah,

federal election, ah, RCMP federal, let's do that [...], then we
made a call to Elections Canada as well.230
I have quoted at length because I find Annette Desgagn's directness engaging,
and her courage admirable. Other call centre workers who intuited, as she did, that some
of what they had been ordered to do seemed really really wrong appear to have had
prudential second thoughts about future job prospects, and spoke to reporters, if at all,
only on the condition of anonymity.
This was an important act of whistle-blowing. What Annette Desgagn and her
co-workers had done, at the time of the 2011 election, was to alert their supervisor at the
RMG call centre, the RCMP, and Elections Canada as well, to their suspicion that they
had been unwitting, and then troubled and unwilling participants in something that
appeared to be seriously improper.
We are faced with three possible lines of interpretation. The first, which would
categorize Ms. Desgagn as a dishonest agent of some malign conspiracy, can be left to
the slander artists, internet trolls, and right-wing bloggers whose plaything it is.
A second would propose that, except for sharing in the Conservative Party's
disregard of Elections Canada's instructions that its information about polling stations
was not to be used when contacting voters, RMG's activities in the closing days of the
2011 election were wholly innocentbut that the lists of voters' addresses provided to
phone-bank operators contained enough (innocent) errors that some of the operators,
after repeatedly getting quizzical or annoyed responses, and after hearing news reports
about the robocall fraud, fell into the erroneous belief that they had been participants in
a misinformation scam. Since the lists in question came from the CIMS database, 231
which was largely assembled by RMG, this hypothesis does scant credit to the
company's professionalism: perhaps, if its work was so riddled with errors, RMG did
230

231

Ibid. In her affidavit, cited in note 201 below, Desgagn indicates that she and the other operators
were working from change-of-polling-station-address scripts for the three days prior to the election,
and that this moment of recognition while driving home occurred just prior to the election. Some news
reports about robocall misdirection, prompted by Elections Canada warnings, were broadcast on May
1, 2011, but the issue did not attract major media attention until May 2.
According to Federal Court Justice Richard G. Mosley's summary of the testimony of Andrew
Langhorne, CEO of RMG, the data for the calls in question was provided to RMG by the
Conservative Party on or about April 29, 2011; this would therefore be the most recently updated
data. See The Honourable Mr. Justice Mosley, 2013 FC 525: Sandra McEwing and Bill Kerr vs.
Attorney General of Canada et al. [...]: Reasons for Judgment and Judgment (Federal Court: Ottawa,
Ontario, 23 May 2013), para. 188, p. 68.

not deserve the Manning Centre's Pyramid Award for Political Technology. But the
possibility of address lists containing enough innocent errors to create the kind of callcentre buzz described by Annette Desgagn seems remote 232and there may be other
reasons for doubting RMG's innocence.
These include RMG's rather murky relationship with an American telemarketing
company, Xentel DM, which has a long history of discreditable behaviour: its repeated
violations of laws governing fundraising led to serious sanctions from regulatory
agencies, including in 2010 a fine of $500,000 levied by the CRTC, and in 2011 a fine
of $720,000 levied by Tennessee authorities;233 in 2011, moreover, an organ donation
charity most of whose money went to Xentel for fundraising and administrative fees
was shut down by the Canada Revenue Agency.234 Glen McGregor and Stephen Maher
have reported that in 2010 RMG shareholders acquired a controlling interest in Xentel
DM, and by implication cleaned up its act, renaming it iMarketing Solutions Group and
having it co-managed by RMG executives until January 2012, when RMG's CEO
Michael Davis became its sole CEO.235 But it seems far from clear who bought whom:
Bloomberg Business Week has described RMG as a subsidiary of Xentel DM, and in
early March 2010 Thomson Reuters reported that Xentel DM had acquired the entire
232

233

234

235

Except in the case of clerical errors, an actual error of this kind would have to be the result of a voter
having moved since the last voter-identification call from one address to another within the same
telephone exchange area, thus retaining the same telephone number. In the case explained away by
Fred DeLorey, the woman who complained of receiving a misdirection call from an RMG call centre
lived in St. Clements, Ontario, some miles northwest of Waterloo, and was (mis-)directed to a polling
station in Kitchener, which lies immediately southeast of Waterloo. But it is hard to believe that
change-of-address cases could have been frequent enough to induce call centre operators to tell their
supervisor that they thought there might be something systematically wrong with the information they
were being asked to share with voters. Moreover, it would have been natural for voters to say
something like No, I don't live in that part of town any more, rather than O, that's like way across
town, how come?
See McGregor and Maher, Conservative call centre company has checkered legal history in U.S. (1
March 2012). It seems far from clear who owns whom, what the continuities are among the
executives of these companies, and what their ethics are. An RMG fundraising script supplied to
Maher and McGregor by an RMG employee and discussed by them in another article suggests a
willingness on RMG's part to sail close to the wind:
The employee provided a script used by telemarketers who represented themselves as
calling on behalf of 'support services' and pushed the Conservative omnibus crime bill
to raise money for the party. The script focused on the perceived threat to the public
from sex offenders. 'We're just fed up with seeing offenders who repeatedly break the
law or sexually molest our children get out early on good behaviour,' the script says,
before directing the conversation to donations to the party. Callers would first suggest
a donation of $250, then, if the potential donor balked, $100 and finally $50.
See Maher and McGregor, Firms linked to voter confusion take an aggressive stance against bad
press.
See The life of a RoboCon is always intense, Creekside (18 April 2012),
http://creekside1.blogspot.ca/2012/04/life-of-robocon-is-always-intense.html.
McGregor and Maher, Conservative call centre company has checkered legal history in U.S.

share capital of The Responsive Marketing Group Inc, a Toronto-based provider of

direct contact services.236 This corporate shell-game, if that is what it is, might suggest
a commitment more to avoiding unfavourable publicity than to ethics.
Beyond the possibility of RMG's innocence there is, then, a third possibility,
which is that the company was indeed engaged in vote-suppression fraud at the behest
of the Conservative Party.

(ii) Regulatory (non-)responses

What, one might wonder, did the RCMP and Elections Canada do when they
were presented with what purported to be inside information as to one source of the
fraudulent and misleading calls that had produced such a flurry of emails among
Elections Canada officials in the days leading up to the election?
In Desgagn's own words from her interview with CBC Radio, the [RCMP's]
feedback was there was nothing they could do, they couldn't help us; and Elections
Canada's response to her call was just to take the information and that was it.237
And what, having done nothing in the interim, did these two agencies do when
this story broke in the Toronto Star, the National Post, and CBC Radio on February 2728, 2012?
The RCMP continued to sit on its hands. Elections Canada announced that a
team of investigators led by Ronald Lamothe, the lead investigator in the in-and-out
scandal, would be despatched to Thunder Baybut in a dilatory manner: they could be
expected to arrive some time the following week. It would seem that no attempt was
made to secure a court order to prevent the destruction of RMG records and recordings.
The Harper Conservatives acted more promptly. On March 1, 2012, Laura
Payton of CBC News reported that
The Conservative Party is reviewing tapes of every call made by
the Responsive Marketing Group call centre in Thunder Bay,
Ont., in the last election before Elections Canada investigators
236

237

Quoted in The life of a RoboCon is always intense, Creekside (18 April 2012). See also RoboCon:
RMG/Xentel/iMarketing Solutions revisited, Creekside (21 December 2012),
http://creekside1.blogspot.ca/2012/12/robocon-rmgxentelimarketing-solutions.html.
CBC Radio: The Current (28 February 2012).

arrive next week, CBC News has learned.

According to the same report,
Conservative Party spokesman Fred DeLorey denied that
Conservative officers are reviewing the tapes. The Conservative
Party is not reviewing tapes from the last election, he said in an
email to CBC News.238
The Toronto Star published a corroborating story, according to which,
As Lamothe heads to Thunder Bay to interview former RMG call
centre workers, Conservative party officials have undertaken a
massive project to review audio recordings of every call made by
RMG staff on the party's behalf in the last campaign, a source
said. A spokesperson for the Conservative party denied that a
review of the calls was taking place.239
To go by the Harper Conservatives' track record, any denial of malfeasance
might as well be a confirmation. What then could the results have been of that
massive review? An equally massive destruction of evidence, perhaps?
One should ask whether there could be any innocent explanation of a project to
review the recordings of every call made by RMG on the Conservatives' behalf during
the election. If the Conservatives knew that RMG had not been involved in making
vote-suppression calls on their behalf, why would they invest time and expense in
listening to RMG's archive of calls? Given that for several days at the end of the
campaign the callers had been using a script that involved checking the voters' own
information about their polling stations against the information on RMG's lists, any
reasonable observer would expect that in a small number of cases there would be
disagreement between the two: in some of these, the RMG listings would be correct and
the voters' information wrong, while in others, the RMG listings would be mistaken and
238

239

Laura Payton, Election call tapes under review by Conservatives, CBC News (1 March 2012,
updated 2 March 2012), http://www.cbc.ca/news/politics/story/2012/03/01/pol-robocalls-electionscanada.html. See also Glen McGregor and Stephen Maher, Tories review tapes at Thunder Bay call
centre as questions grow over company's checkered legal history, National Post (2 March 2012),
http://www.news.nationalpost.com/2012/03/02/tories-review-tapes-at-thunder-bay-call-centre-asquestions-grow-over-companys-checkered-legal-history/.
Cited by Nancy Leblanc, About those election call tapes being reviewed, Impolitical (2 March
2012), http://impolitical.blogspot.ca/search?updated-max=2012-03-09T00:5300-05:00&maxresults=20&start=400&by-date=false; quoted by Hall. The claims by CBC News and the Toronto Star
about Conservative Party officials reviewing RMG call tapes may be derived from the same source;
but while the Toronto Star story appears to be secondary, its wording implies direct and independent
contact with a source.

the voters' information correct. Why go to the bother of checking, if one knew in
advance that the worst that could be disclosed by the most thorough and suspicious
investigation would amount to no more than random noise?
If, however, one knew very well that RMG had been part of a fraudulent
campaign of misinformation, one could anticipate that the audio archives of the last few
days of the 2011 campaign would contain significant numbers of voter responses of
precisely the kind that had awoken Annette Desgagn's suspicions. The purpose of a
massive review would be to edit any such evidence of vote suppression out of the
archiveleaving behind, of those calls in which voters protested that their own
information about polling stations differed from the RMG listings, only the ones in
which the RMG listings were correct.
It is regrettable that Elections Canada didn't get around to announcing its own
massive investigation of the telephone fraud until November 2012, some nine months
after these events. In August 2011, in his official report on the May 2, 2011 election,
Marc Mayrand had announced that the top priority of Elections Canada was to reduce
the regulatory burden on political entities.240 Perhaps in late February and early March
2012 his agency was still in the process of adjusting its priorities.

(iii) Consequences of Elections Canada's Delay

Elections Canada's failure to carry out a timely investigationor, so far as we
know, any investigation at allof RMG's audio recordings of its 2011 election calls has
had important consequences.
On May 23, 2013, Federal Court Justice Richard G. Mosley announced his
ruling in a case which had been brought by voters in six electoral districts (two in
Manitoba, and one each in Saskatchewan, Ontario, British Columbia, and Yukon), with
support from the advocacy group The Council of Canadians, requesting that the 2011
election results in their ridings be overturned, on the grounds that the results in these
ridings were tainted by vote-suppression telephone fraud.
240

Marc Mayrand, Report of the Chief Electoral Officer of Canada on the 41st General Election of May
2, 2011, 1.2 (Political Financing), http://www.elections.ca/content/aspx?
section=res&dir=rep/off/sta_2011&document=index&land=e.

Judge Mosley dismissed the application in a carefully argued 99-page judgment,

which the six Conservative MPs and the Conservative Party naturally regarded as a
triumphant outcome. But Mosley's ruling held out a measure of satisfaction and of
discomfort to both sides. Media responses to the judgment give a clear impression of the
different ways in which it was interpreted across the political spectrum. The titles alone
of five articles, moving from the political right to the left, are revealing: Robo-calls had
minimal impact on 2011 election, court rules, upholding results (Globe and Mail);
Robocalls: Widespread but 'thinly scattered' vote suppression didn't affect election,
judge rules (Toronto Star); Judge finds smoking gun in robocalls scandal but who
pulled the trigger? (National Post); Federal Court won't remove MPs over election
robocalls: Judge finds that fraud occurred, linked to the Conservative Party's CIMS
database (CBC News); Robocalls: Federal Court ruling scorches the Conservatives,
and there's more to come (Rabble.ca).241
Judge Mosley found that electoral fraud had indeed occurred: it has been
established that misleading calls about the locations of polling stations were made to
electors in ridings across the country, including the subject ridings, and that the purpose
of those calls was to suppress the votes of electors who had indicated their voting
preference in response to earlier voter identification calls. He concluded that the most
likely source of the information used to make the misleading calls was the CIMS
database maintained and controlled by the CPC [Conservative Party of Canada],
accessed for that purpose by a person or persons currently unknown to this Court. 242
241

242

The full citations: Josh Wingrove, Robo-calls had minimal impact on 2011 election, court rules,
upholding results, Globe and Mail (23 May 2013),
http://www.theglobeandmail.com/news/politics/federal-ruling-dismisses-robo-call-appeal-clearstories/arrticle12121319/; Tonda MacCharles, Robocalls: Widespread but 'thinly scattered' vote
suppression didn't affect election, judge rules, Toronto Star (23 May 2013),
http://www.thestar.com/news/canada/2013/05/23/robocalls_widespread_but_thinly_scattered_vote_su
ppression_didnt_effect_election_judge_rules.html; Andrew Coyne, Andrew Coyne: Judge finds
smoking gun in robocalls scandal but who pulled the trigger? National Post (24 May 2013),
http://fullcomment.nationalpost.com/2013/05/24/judge-finds-smoking-gun-in-robocalls-scandal-butwho-pulled-the-trigger/; Laura Payton, Federal Court won't remove MPs over election robocalls:
Judge finds that fraud occurred, linked to the Conservative Party's CIMS database, CBC News (23
May 2013), http://www.cbc.ca/news/politics/story/2013/05/23/pol-federal-court-robocallallegations.html; Karl Nerenberg, Robocalls: Federal Court ruling scorches the Conservatives, and
there's more to come, Rabble.ca (27 May 2013), http://rabble.ca/blogs/bloggers/karlnerenberg/2013/05/robocalls-federal-court-ruling-scorches-conservatives-and-ther. It may seem
surprising to find the National Post to the left of the Toronto Star on this issue, but the National Post
and the Postmedia chain have consistently provided incisive reporting and commentary on the
scandal.
The Honourable Mr. Justice Mosley, 2013 FC 525: Sandra McEwing and Bill Kerr vs. Attorney
General of Canada et al. [...]: Reasons for Judgment and Judgment (Federal Court: Ottawa, Ontario,
23 May 2013), paras. 244-45, p. 88.

And he noted that in these proceedings, the applicants sought to achieve and hold the
high ground of promoting the integrity of the electoral process while the respondent
MPs engaged in trench warfare in an effort to prevent this case from coming to a
hearing on its merits. The MPs repeatedly made transparent attempts to derail this
case, and sought from the outset [...] to block these proceedings by any means.243
On the other hand, Judge Mosley remarked that no evidence was provided by
the applicants that would lead him to find that any of the successful electoral
candidates or their agents were implicated in any way in the fraudulent activity. He
stated that The number and location of the complaints received by Elections Canada
from across Canada indicates that the voter suppression effort was geographically
widespread but, apart from Guelph, thinly scattered; and he concluded that while the
fraudulent calls appear to have been targeted towards voters who had previously
expressed a preference for an opposition party (or anyone other than the government
party), the evidence in this proceeding does not support the conclusion that the voter
suppression efforts had a major impact on the credibility of the vote.244
Apart from sworn court documents produced in the course of their inquiries by
Elections Canada investigators, to which Judge Mosley accorded full evidentiary value,
two key pieces of evidence were presented by the applicants.
One of these was the survey-based study by Ekos Research, published in April
2012, which found significant vote-suppression effects caused by misleading phone
calls in the six subject ridings. While acknowledging the importance of the Canada
Elections Act's protection of voter secrecy as an obstacle to obtaining evidence of
individual instances of vote suppression, and acknowledging both the relevance and the
validity of the Ekos study, Judge Mosley nonetheless ruled that he was not satisfied
that the survey is a reliable evidentiary basis upon which to cast doubt on the winner in
each contest even where the margin of victory was close. 245 (In Chapter 9, I will argue
that Judge Mosley's refusal to rely on evidence of a kind he took to be categorically
different from the sworn viva voce and affidavit evidence on which court proceedings
are normally based was an error, and that this ruling is questionable on other grounds as
well.)
The other key piece of evidence was the testimony of Annette Desgagn, which
243
244
245

Ibid., paras. 261, 263, 262, pp. 93-94.

Ibid., paras. 254-56, pp. 91-92.
Ibid., para. 249, p. 90.

as Judge Mosley noted was flatly contradicted by Mr. [Andrew] Langhorne of RMG.
The judge dismissed Desgagn's evidence as being based
solely upon her recollection which, as she acknowledged in an
interview conducted on CBC radio on February 28, 2012, was
unclear. Mr. Langhorne's evidence is supported by the RMG
records and is consistent with the industry practices described by
both himself and Mr Penner.246
Annette Desgagn's affidavit testimony was weakened, in the judge's view
fatally, by a passage in her CBC Radio interview, immediately following her account of
asking an RMG supervisor for guidance, in which she stumbled in response to a twopart question from Anna Maria Tremonte about the crucial features of the end-ofcampaign scripts which Desgagn claimed were so problematic:
Tremonte. Can I ask, so, you But you said you were calling on
behalf of the Conservative Party, and that Elections Canada had
changed something. That's what you were told to say?
Desgagn. You know what, it's becoming a little bit unclear because
I don't want to say Yes it was, and I don't want to say No it
wasn't. What was very clear was, um, the message was Election
I'm calling because Elections Canada has made some
changes to the voting locations and we just want to confirm you
have the right address. That was very clear.247
Desgagn was emphatic in her response to the second half of Tremonte's twopart question, and quoted part of the relevant script; but she was uncertain as to whether
this script also included a statement about calling on behalf of the Conservative Party, as
the previous scripts had done. Her principal claim, of course, was that the script used in
the last several days of the election campaign contained the message about pollingstation changes, and that the polling-station address information, keyed to the numbers
in each riding, that came up on her computer screen, was recurrently misleading.
A sympathetic reader might be willing to treat this momentary lack of clarity as
246

247

Ibid., paras. 187, p. 68, and 195, pp. 70-71. Robert Penner, President and CEO of Strategic
Communications Inc., testified for the applicants as an expert witness on the nature of voteridentification and get-out-the-vote calls, and on the ways they can be distinguished from votesuppression harassment and misinformation calls.
The Current (28 February 2012). I have again used italics to indicate a point at which Ms. Desgagn
spoke emphatically.

unimportant. In her account of responses to these calls (which included people asking
O really, who are you?), Desgagn had implied that the Conservative Party wasn't
named. And in her affidavit, sworn on April 13, 2012, she stated that the polling-change
scripts she and the other callers used in the last three days before the election did not
identify that we were calling on behalf of the Conservative Party nor did we mention the
local Conservative candidate, although the scripts used on the preceding days and on
election day, neither of which made any mention of polling-station changes, did involve
saying that she was calling on behalf of the Conservative Party. 248 But judges are not
paid to be sympathetic readers.
What Judge Mosley found particularly convincing about the testimony of
Andrew Langhorne, the Chief Operating Officer of RMG, was that it drew upon the
company's archive of voice recordings. At some points that testimony overlapped with
Desgagn's: for example, Langhorne confirmed that the RMG 'GOTV script' used on
the three day period including election day to communicate with previously identified
CPC supporters included a statement that Elections Canada had changed some voting
locations at the last moment and invited the voter to confirm the address where he or she
would be voting.249 But Langhorne's testimony also contained details that seemingly
refuted Desgagn's claims:
Mr. Langhorne provided the text of a GOTV Script which he
states Ms. Desgagn was directed to use on such calls. RMG
determined that Ms. Desgagn made only 20 GOTV calls to
persons residing in one of the subject ridings. [....] Recordings of
the 20 GOTV calls made by Ms. Desgagn to persons in the
subject ridings contain no reference to calling on behalf of
Elections Canada. The accuracy of the polling station information
provided was questioned in only two of the calls. Both were to
248

249

Affidavit of Annette Desgagn, in Federal Court of Canada File No. T-633-12, Between: Ken
Ferance and Peggy Walsh Craig, Applicants, and Attorney General of Canada et al.,
www.canadians.org/sites/default/files/election-fraud/affidavits/FERANCE-CRAIG-00415825.PDF.
Given these complexities, Desgagn's confusion over the issue while trying to answer a doublebarrelled question in her radio interview may seem understandable.
The Honourable Mr. Justice Mosley, 2013 FC 525, para. 190, p. 69. Langhorne's testimony also
indicated that If the voter's information about their assigned voting location did not match the address
on their screen displayed from the GOTV Data, the callers were instructed to provide the local CPC
campaign office phone number for the supporter to call and get clarification. This appears to
correspond with what Desgagn said in her CBC Radio interview about being instructed to give
questioners a number posted on a board in the calling centre.

CPC supporters in the Elmwood-Transcona riding and the

information in the script was shown to be correct.250
One can perhaps be forgiven for pointing to what seems a momentary lack of
clarity in this summation of evidence contradicting Annette Desgagn's affidavit. The
fact that recordings of her get-out-the-vote calls to people in the subject ridings contain
no reference to calling on behalf of Elections Canada is irrelevant, since at no point
had she claimed that the scripts she was following made such a claim. (She did state that
she heard a fellow worker, departing from the script, claim, I am calling from Elections
Canada.... She rebuked him, saying, Dude, you're not from Elections Canada, but
was ignored.)251 It can also be observed that the other information noted in this
paragraph stands as a refutation only if there was no other substantial body of calls in
which the recipients protested to Annete Desgagn and other callers about what turned
out to be misinformation.
The importance of another piece of evidence seems to have escaped the judge's
notice. A report for CBC News republished by the Huffington Post noted that RMG's
get-out-the-vote script provided by Andrew Langhorne in his August 8, 2012 affidavit
asked voters to confirm they knew where to vote on election day and said, 'Elections
Canada has changed some voting locations at the last moment.' This script was used
in a number of ridings, including five of six ridings at issue in a Federal Court
challenge over the result of the election [....]. But only one of the ridings actually had
changes to its polling stations, says a lawyer [Steven Shrybman] representing the voters
who mounted the challenge.252 (There was in fact just one polling station change in that
riding.)
On the assumption that the calls made into these ridings were innocent in
intention, that seems a remarkable piece of inefficiency. Since Elections Canada did its
best to publicize polling station changes, the Conservative Party and RMG could have
known that there was just one such change in these ridings. By not deleting the material
about polling station changes in ridings where it was inapplicable, RMG would have
been wasting its callers' time in the calls made into 80 percent of the ridings in this
small sample. But if on the other hand these were really vote suppression calls, there
250
251
252

Ibid., para. 191, p. 69.

Affidavit of Annette Desgagn, Court File No. T-633-12.
Tory Election Call Scripts Raised Polling Station Changes, Huffington Post (5 November 2012),
http://www.huffingtonpost.ca/2012/11/05/robocall-scripts-conservatives-canada_n_2078345.html.

was no inefficiency involved at all.

At this point the question of who controls the archive of recordings, and who has
or has not examined it, becomes crucial. One may suspect that the material Andrew
Langhorne submitted to the Federal Court had been put through a rigorous process of
censorship and editing,253 and that recordings of other calls made by Annette Desgagn
which contained misinformation of the kind she testified to had been purged from
RMG's records during the massive review of RMG tapes reported by CBC News and
the Toronto Star.
But that remains mere speculation. Ms. Desgagn's testimony has been rejected
in Judge Mosley's decision, and RMG's evidence accepted and validated; and
anonymously-sourced news reports about a putative review of RMG's tapes can be
dismissed as mere hearsay.
This seems a shame, because there are, as it happens, eddies of confusion and
contradiction in Andrew Langhorne's testimony that make the momentary confusion in
Annette Desgagn's CBC Radio interview seem trifling by comparison.
Langhorne testified to the Federal Court that (in Judge Mosley's paraphrase)
During the three day period prior to Election Day, RMG's calls were directed only at
those voters who had previously self-identified as CPC supporters in order to remind,
motivate, and, if necessary, assist, them to vote.254 There's no doubt that RMG, like
other companies doing similar work, was busily engaged in making get-out-the-vote
(GOTV) calls during the final days of the campaign. But Langhorne's testimony, which
Mosley accepted, was to the effect that RMG was only making GOTV calls during this
period, and making them exclusively to people known from the CIMS database as
Conservative supporters. In other words, Annette Desgagn must have been mistaken in
believing that she and her co-workers had been making vote-suppression calls.
Some notable contradictions in Judge Mosley's summary of the evidence have a
bearing on this issue. Mosley noted that Desgagn and Langhorne agreed that RMG had
stopped doing voter identification calls about three days before the election: Ms.
Desgagn deposed that about 3 days before the election, the RMG scripts changed. This
is consistent with the evidence of Mr. Langhorne that the Voter ID calls ended and they

253

254

Annette Desgagn deposed in a supplementary affidavit that the text Mr. Langhorne provided was an
amalgam of at least two other scripts she was directed to use... (Ibid., para. 193, p. 70).
The Honourable Mr. Justice Mosley, 2013 FC 525, para. 189, p. 68.

began the GOTV calls. The new text mentioned revised polling station locations.255
The contradictions arise between this evidence and the testimony Langhorne
gave in response to the affidavit of one of the applicants, Ken Ferance, of the riding of
Nipissing-Temiskaming. Ferance deposed that [a]t some point during the election
campaign his wife received a live voter-identification call made on behalf of the
Conservative Party, and identified herself as a non-supporter; and that he himself
received a live misinformation call on May 2, 2011 from someone purporting to be
from Elections Canada; he was very clear that the misinformation call he received
came on election day, just after he had voted.256 Langhorne acknowledged that RMG
had placed a call to Ferance, but differed as to its nature and timing. In his summary
Judge Mosley wrote: Mr. Langhorne acknowledged that during the Voter ID process,
information about non-CPC supporters is collected and provided to the CPC. Apart from
Mr. Ferance, none of the applicants and supporting affiants received a Voter ID call
from RMG in the three days prior to polling day according to the company's records.257
According to Langhorne's own testimony, however, Ferance could not have
received a voter-identification call from RMG in the three days prior to polling day,
because by then RMG was doing GOTV calls. Moreover, Ferance was categorical that
the offending callwhich was clearly not a voter-identification call, since it offered him
information about his polling station which, having just voted, he knew to be false
was made to him on the day of the election.
Langhorne's and Ferance's disagreement over the timing of the call RMG
acknowledged making to Ferance is a matter that could have been resolved by
independent forensic analysis of RMG's phone records and recordings. But no such
analysis is available. And given Langhorne's self-contradictionhe claimed that RMG's
call to Ferance was a voter-identification call (one which would have contained no
information about polling stations), despite having also testified that during the time
when the call was made RMG's operators had switched from voter-identification calls to
get-out-the-vote calls (which did mention revised polling station locations)it would
seem reasonable to reject his testimony as confused or misleading, and to accept Ken
Ferance's claim that the call he received was a vote-suppression call.
255
256
257

Ibid., para. 186, p. 68.

Court File No. T-633-12.
The Honourable Mr. Justice Mosley, 2013 FC 525, para. 187, p. 68.

A pesssimist would say that the investigative moment has passed. The CBC
News and Toronto Star reports would seem to indicate that a barn door which had
previously remained shut was flung open at the end of February 2012: but whatever
strange beasts might have been kept inside have long since slouched off into the night,
and it would be surprising indeed if, two years later, their stalls hadn't been scrubbed out
and their hoofprints erased.
Whether or not this is the end of the RMG story will depend upon the quality of
Elections Canada's ongoing investigative work. Investigator John Dickson, who has
been given responsibility for looking into complaints about fraudulent phone calls in
British Columbia, Alberta, Manitoba, Ontario, New Brunswick, and Newfoundland
that is to say, nearly the entire country except for Qubec and the riding of Guelph,
Ontariobegan in late 2012 to file Information to Obtain (ITO) court orders for
telephone companies' Call Detail Records (CDRs), which could make it possible to
ascertain the time and duration of fraudulent calls, as well as the name of the
originating carrier and routing information and the caller ID data. 258 (It is of course by
no means obvious that those records would still have been available for him to examine
more than eighteen months after the fact.)
The data obtained by John Dickson may make it possible to test Andrew
Langhorne's statement that at the end of the election campaign RMG was only
contacting Conservative supporters, and only making get-out-the-vote calls. Should it
emerge that RMG had also been contacting significant numbers of self-identified nonsupporters of the Conservative Party during the same periodpeople like Carolyn
Siopiolosz of St. Clements, Ontario, and Ken Ferance of the riding of NipissingTemiskamingand that they and others had complained of receiving deceptive pollingstation change calls from RMG,259 that might constitute grounds for ordering a forensic
258

259

Stephen Maher and Glen McGregor, Elections Canada gets phone records in 56 ridings in votesuppression probe, Ottawa Citizen (29 November 2012),
http://www.ottawcitizen.com/news/Elections+Canada+gets+phone+records+ridings+vote+suppression
+probe/7630448/story.html. The information about the provinces in which Dickson is conducting his
investigation is from Laura Payton, Robocalls election probe turns to Rogers clients, CBC News (15
January 2013), http://www.cbc.ca/news/politics/story/2013/01/15/pol-robocalls-election-investigationrogers-customers.html.
One such complaint came from an unexpected source: Ken Morgan, the Campaign Manager for the
Marty Burke Conservative campaign in Guelphwho reportedly complained that some Tory
supporters [in Guelph] were falsely told their polling station had been moved. The people on whose

audit of RMG's computers. Such an audit, if conducted by first-rate computer-security

experts, could show whether RMG's audio files for the last several days of the 2011
election campaign had indeed been purged in early March 2012, and to what effect.

(iv) Conservative Party obstructionism

The RMG case may not be the only one in which Elections Canada's inquiries
have been very significantly delayed. The Conservative Party has repeatedly claimed, as
Glen McGregor and Stephen Maher wrote in April 2012, that it has reached out
proactively, seeking to help Elections Canada in its investigation. 260 But information
from John Dickson would suggest otherwise.
At the same time as Dickson began to file court orders for telephone records, he
also set about arranging interviews with Conservative Party officials who could have
relevant information: rather strangely, it might seem, he tried to schedule these through
the sole mediation of Conservative Party lawyer Arthur Hamilton. (For an explanation
of this odd procedure, which gives a senior official of the governing party control over
an investigator's access to other functionaries of the party, some of whom appear to be
guilty of a subversion of electoral processa serious state crime against democracy261
we might want to question Yves Ct, Commissioner of Canada Elections. This looks
rather like an instance of what Scott Taylor predicted would be Ct's unwillingness to

260

261

behalf he made this complaint had received live calls; The number behind the live call led to a
recording stating 'This is the Conservative Party of Canada.' Morgan believed that attribution to be
false, but the number (519-479-0031) was the same one, acknowledged by Fred DeLorey to belong to
RMG, from which Carolyn Siopiolosz received her misleading call. See National Post Staff,
Conservative alleges 'live calls' misled supporters in election, National Post (9 April 2012),
http://news.nationalpost.com/2012/04/09/conservative-alleges-live-calls-misled-supporters-inelection/.
Glen McGregor and Stephen Maher, Tories, call-bank company reject affidavit alleging voter
misdirection, Ottawa Citizen (18 April 2012),
http://www.ottawacitizen.com/news/Tories+call+bank+company+reject+affidavit+alleging+voter+mis
direction/6480890/story.html.
This important political and legal concept has been developed by Lance deHaven Smith and his
colleague Matthew T. Witt. See Lance deHaven Smith, When Political Crimes are Inside Jobs:
Detecting State Crimes Against Democracy, Administrative Theory and Praxis 28.3 (2006): 330-55;
Matthew T. Witt and Lance deHaven Smith, Conjuring the Holographic State: Scripting Security
Doctrine for a (New) World of Disorder, Administration and Society 40.6 (2008): 547-85; Lance
deHaven Smith and Matthew T. Witt, Preventing State Crimes against Democracy, Administration
and Society 41.5 (2009): 527-50; Lance deHaven Smith, Beyond Conspiracy Theory: Patterns of
High Crime in American Government, American Behavioral Scientist 53.6 (2010): 795-825; and
Lance deHaven Smith, Conspiracy Theory in America (Austin: University of Texas Press, 2013).

swim upstream against the political current.)

Not surprisingly, the procedure has not proved satisfactory. As Laura Payton of
CBC News reported in January 2013, court records released in the fall of 2012 showed
that it was taking months for Hamilton to arrange interviews for Dickson. 262 When the
two spoke first by telephone on August 7, 2012, Hamilton asked Dickson to go through
him with any requests. When they next spoke, on August 30, this arrangement had
presumably been accepted; on that occasion, Dickson's court documents show that he
discussed with [Hamilton] the issue of whether the Conservative Party or its candidate
in several [electoral districts] noted herein made such calls. He advised me he would
look into the matter and reply.263
What followed, according to Dickson's understated court records, was a charade
worthy of the officials of Charles Dickens' Circumlocution Office:
On Sept. 20, 2012, Mr. Hamilton advised me he will put the
request forward for a response. On Oct. 2, 2012, Mr. Hamilton
advised me that he will attempt to arrange for me to speak directly
with the appropriate campaign official. On Oct. 30, 2012, Mr.
Hamilton advised me that he anticipates being able to facilitate
such meetings in the near future.
In records dated November 1, 2012 but released only in January 2013, the ever-hopeful
Dickson anticipated those interviews being arranged in the near future.264
Asked for an explanation of these delays, Conservative Party spokesperson Fred
DeLorey replied, in broken-record fashion, that As I've said before, we have
proactively reached out to Elections Canada and offered to assist them in any way we
can....265
This is more than just a rather spectacular display of what Shakespeare's Hamlet
called the law's delay, / The insolence of office.... 266 It seems safe to assume that when
John Dickson eventually got to interview whatever campaign officials senior figures
262
263
264

265

266

Payton, Robocalls election probe turns to Rogers clients.

Ibid.
Ibid. Charles Dickens' satirical account of the Circumlocution Office's endless delays appears in his
novel Little Dorrit; in Bleak House he satirizes the equally endless delays of the Court of Chancery.
Stephen Maher and Glen McGregor, Elections Canada gets phone records in 56 ridings in votesuppression probe, Ottawa Citizen (29 November 2012),
http://www.ottawacitizen.com/news/Elections+Canada+gets+phone+records+ridings+vote+suppressio
n+probe/7630448/story.html.
Hamlet, Prince of Denmark, Act Three, scene 1, lines 73-4; in David Bevington, ed. The Complete
Works of Shakespeare (6th ed., New York: Pearson/Longman, 2009), p. 1119.

within the governing party deem it appropriate for him to meet, the officials in
question would have been well coached, and their files carefully purged.
Delays of this kind have continued to be a problem for Elections Canada. On
May 28, 2013, after appearing before a Commons committee, Chief Electoral Officer
Marc Mayrand confirmed to reporters that Conservative stalling tactics have
significantly delayed his agency's investigations of the 2011 telephone fraud:
Basically, in some cases, appointments are cancelled at the last
minute, Mayrand said. People who have agreed suddenly decide
they don't want to meet with the investigator. That adds time,
delays, and makes the investigation a little bit more complex than
need be.
The chief electoral officer also confirmed reports that it took the
Conservatives' lawyer three months to reply to requests for
interviews of party members linked to the robocalls case [...].267
In his testimony to the Commons committee, Mayrand likewise left little doubt
that the Conservatives are being less than co-operative with Elections Canada on either
robocalls or the overhaul of elections laws that Mayrand has been seeking. 268 In late
March 2013 he had declared that the country urgently needed to toughen up its laws
against election

fraud and had

published a report,

Preventing

Deceptive

Communications with Electors, which offered a detailed outline and justification of the
necessary changes to the Canada Elections Act and to administrative procedures
surrounding elections.269 My fear is that we see a reoccurrence of the issues we saw in
the last general election, he said on releasing this report. Insisting that any new laws
have to be in place by 2014, Mayrand said, Time is running out ... It's becoming
urgent.270 Prime Minister Harper responded that These recommendations will be

267

268
269

270

Susan Delacourt, Conservatives not helping Elections Canada on robocalls, election-law reform,
Toronto Star (28 May 2013),
http://www.thestar.com/news/canada/2013/05/28/conservatives_not_helping_elections_canada_on_ro
bocalls_electionlaw_reform.html.
Ibid.
Marc Mayrand, Preventing Deceptive Communications with Electors: Recommendations from the
Chief Electoral Officer of Canada Following the 41st General Election (Ottawa: Elections Canada, 26
March 2013), www.elections.ca/res/rep/off/comm/comm_e.pdf, 44 pp.
Susan Delacourt, Robocalls: Crackdown on vote fraud 'urgently' needed, Toronto Star (28 March
2013),
http://www.thestar.com/news/canada/2013/03/28/robocalls_crackdown_on_vote_fraud_urgently_need
ed.html.

strongly taken into account [...] in the not too distant future.271
Five months later, the government had yet to engage Elections Canada in
discussions of Mayrand's report. As Joan Bryden of the Canadian Press reported on
August 21, 2013,
Mayrand has proposed amending the law to, among other
things, give Elections Canada stronger investigative powers and
impose stiffer penalties an anyone found guilty of electoral fraud.
He's also called for greater regulation of the databases political
partices have amassed on Canadians' voting preferences.
The government had prepared legislation, without consulting
Mayrand, that was to have dealt with some of the issues raised by
the so-called robocall scandal. The bill was scheduled for
introduction last April, but was yanked at the last minute,
reportedly after receiving a hostile reception from Conservative
MPs.272
Inactive itself on the subject, the government also refused any collaboration with
opposition parties. Craig Scott, the NDP's critic for parliamentary and democratic
reform, who had tabled a private member's bill in October 2012 designed to prevent
and prosecute fraudulent voice messages during election periods, tried to work with
the government to make sure it got incorporated into the election reform bill that they
have still not tabled. This seems to have come to nothing, and Scott's bill has yet to
move past first reading in the House of Commons.273
Deputy Liberal leader Ralph Goodale noted that You don't need to reinvent the
wheel in terms of how to change the law, Elections Canada has already done its own
work.274 At the same time, he warned that the Harper government's inaction meant that
the forms of harassment and vote suppression used in 2011 might well resurface in four
upcoming byelections:
Indeed, Goodale suggested the Conservatives, whom he
271
272

273

274

Ibid.
Joan Bryden, Liberals alert voters to potential for electoral fraud in coming byelections, CTV News
(21 August 2013), http://www.ctvnews.ca/politics/liberals-alert-voters-to-potential-for-electoral-fraudin-0coming-byelections-1.1420943.
Fiona Buchanan, Liberals, NDP call on Harper to introduce election fraud bill, Postmedia News (22
August 2013),
http://www.canada.com/Liberals+call+Harper+introduce+election+fraud+bill/8817468/story.html.
Ibid.

blames for the 2011 robocall affair, are deliberately dragging

their feet because they intend to use such tactics again.
All of this makes you wonder what the real motive is in
keeping the law against voter suppression and electoral fraud so
ineffective that people could easily do it again with little fear of
ever getting caught.275
Predictably, the Conservative Party's response to these pressures was to sling
mudobligingly provided for them, in this case, by some bright light in the Liberal
Party's head office who in the 2008 election had had the clever idea of giving the name
of Suppression Cards to two information cards prepared by the central office and
containing negative information about the NDP and the Conservatives; these cards
formed part of a package of material for which all Liberal candidates (including Justin
Trudeau) were invoiced by the central office.
Jenny Byrne, the Conservative Party's director of political operations, echoed by
party spokesman Fred DeLorey, promptly made use of this unlikely ammunition to
change the subject, and to insinuate that it was the new Liberal leader and his colleagues
who had invented the notion of vote suppression, three years before the 2011 election.276
On February 4, 2014, the Harper Conservatives rolled out what they called the
Fair Elections Act, whose most prominent feature is that it deprives Elections Canada
of any investigative functions. In announcing this piece of legislation, Pierre Poilivre,
the Minister of State for Democratic Reform, justified the change with a disgraceful
smear of Chief Electoral Officer Marc Mayrand: 'The referee should not be wearing a
team jersey,' said Mr. Poilivre. 277 As John Ivison commented, It's doubtful if many
people are higher on Stephen Harper's 'enemies' list than Marc Mayrand.... 278 Kelly
McParland has observed that the Conservative Party resents the enthusiasm Marc
Mayrand [...] put into pursuing perceived transgressions. Mr. Mayrand is one of those
senior federal officials, like former Parliamentary Budget Officer Kevin Page, who did
their jobs far too diligently for the government's liking.279
275
276
277

278
279

Bryden, Liberals alert voters to potential for electoral fraud in coming byelections.
See Bryden, Liberals alert voters; and Buchanan, Liberals, NDP call on Harper.
John Ivison, John Ivison: Conservatives' Fair Elections Act offers common sense changes with a
dose of mistrust, National Post (4 February 2014):
http://www.fullcomment.nationalpost.com/2014/02/04/john-ivison-conservatives-fair-elections-actoffers-common-sense-changes-with-a-dose-of-mistrust/.
Ibid.
Kelly McParland, Kelly McParland: Harper uses s shiv on Elections Canada, in contrast to Trudeau's

Once Bill C-23, the Fair Elections Act becomes law, investigations into
violations of the Canada Elections Act will become the sole responsibility of the
Commissioner of Canada Electionswho as lawyer Steven Shrybman notes, is no
longer to be appointed by [the] Chief Electoral Officer, who is accountable to
Parliament and not to the particular government in power. Instead, the Commissioner
will be appointed by a civil servant and report to the Attorney General. 280 One can
assume that for the moment this position will continue to be held by the compliant Yves
Ct.
But Bill C-23 also contains other far more damaging provisions, which are quite
obviously intended to prevent the public from obtaining information about occurrences
of electoral fraud. Shrybman remarks that Section 18 of the Bill strips the Chief
Electoral Officer of his right to use 'the media or other means' to 'provide the public ...
with information relating to Canada's electoral process, the democratic right to vote and
how to be a candidate.' By muzzling the Chief Electoral Officer, Bill C-23 will
make it far less likely that a government will have to contend with a timely judicial
inquiry into voter fraud, thus obviating the need to again engage in 'trench warfare' to
prevent such a case from being heard in court. 281 And the Bill also silences the
Commissioner of Canada Elections, whom it forbids from revealing that any
investigation into violations of the Canada Elections Act is underway without the
consent of all involved, including the person or political party under investigation.282
It is hard to imagine how a piece of legislation could have been more perfectly
calculated to ensure the continuance, with impunity, of fraud in Canadian elections.
But don't worry, Shrybman writes; you'll probably never hear about it.283
*

As a coda to the matter of Elections Canada's efforts at enforcement, it can

280

281

282
283

Senate axe, National Post (5 February 2014),

http://www.fullcmment.nationalpost.com/2014/02/05/national-post-harper-uses-a-shiv-on-electionscanada-in-contrast-to-trudeaus-senate-axe/.
Steven Shrybman, The Fair Elections Act hinders whistle-blowing, Ottawa Citizen (5 February
2014), http://www.ottawacitizen.com/opinion/oped/Fair+Elections+hinders+whistle+blowing/9472219/story.html.
Ibid. The words trench warfare are quoted from Judge Richard G. Mosley's decision discussed in
section (iii) of this chapter. Shrybman represented the Council of Canadians in that case.
Ibid.
Ibid.

mentioned that as of August 2013, charges had been laid against only one individual in
the telephone vote-suppression scandal: Michael Sona, who in 2011, aged 23, was
Communications Director of the Marty Burke Conservative campaign in Guelph. We
will see in the next chapter that the singling out of this one Conservative operative gives
reason to suspect that Yves Ct, the official responsible for launching prosecutions
under the Canada Elections Act, may have chosen to accept the Conservative Party's
own very dubious understanding of the affair.

Chapter 7. The election campaign in Guelph

Despite the criticisms of Elections Canada in the preceding chapters, it must be

emphasized that it was the posting of court documents by Elections Canada investigator
Allan Mathews in February 2012 and in the succeeding months, in the course of his
inquiry into vote suppression in the riding of Guelph, Ontario, that brought the issue of
fraud in the 2011 election back into public consciousness. What made these documents
sensationalfor the Elections Canada emails discussed in Chapter 3 were as yet still
unknown to the publicis that they indicated, for the first time, a definite if still
indirect connection between the telephone fraud and the Conservative Party. The
perpetrators of the fraud remained unknown, but the fact that they had had the calls sent
out by RackNine, a small Edmonton call centre that worked for the party's national
campaign and those of at least nine Conservative candidates, including Prime Minister
Stephen Harper's own campaign in Calgary Southwest, seemed a significant break in
the story.284 Allan Mathews' work also of course put Guelph into the centre of the
election-fraud inquiry.
Since Liberal MP Frank Valeriote had won the Guelph seat in 2008 by just 1,788
votes, this was one of the Ontario ridings that Conservative strategists hoped could be
theirs for the taking in 2011. The Conservative campaign in Guelph was therefore
marked by a succession of appearances in the riding by prominent Conservatives,
including the Prime Minister, who as Scott Tracey of the Guelph Mercury has noted,
visited Guelph two weeks before the election writ was dropped, and again during the
campaign. Other high-profile visitors included Treasury Board president Stockwell Day,
Citizenship Minister Jason Kenney and Finance Minister Jim Flaherty.285
Telephone fraud, involving both harassment and vote suppression, was another
284

285

See Stephen Maher and Glen McGregor, Firm with Tory links traced to election day 'robocalls' that
tried to discourage voters, National Post (22 February 2012, updated 7 March 2012),
http://news.nationalpost.com/2012/02/22/racknine-inc-fraudulent-election-calls-traced/. Maher and
McGregor emphasized that There is no evidence that Harper's campaign or any of the other
canddates were involved in the calls. Racknine says it was unaware its servers were being used for the
fake calls.
Scott Tracey, Guelph Conservatives felt national party influence, documents suggest, Guelph
Mercury (2 March 2012), http://www.guelphmercury.com/news/local/article/680217--guelphconservatives-felt-national-party-influence-documents-suggest.

prominent feature of the campaign in Guelph. As I noted in Chapter 2, there were

complaints from this riding during the election period that Liberal supporters were
being harassed by rude phone callssome in the middle of the nightfrom callers
fraudulently representing themselves as Liberals;286 and the end-of-campaign vote
suppression in Guelph appears to have been the most intense in the country: more
voters were noted by journalists as having been misled by it than in any other riding,
and Elections Canada received far more complaints about telephone fraud from Guelph
than from anywhere else.
Surprisingly, however, the Liberal incumbent emerged from the 2011 election
with a substantially increased majority. Before we consider in detail what is known
about the telephone fraud in Guelph, it may therefore be useful first to consider the
ways in which the election campaign unfoldedor, from a Conservative perspective,
unravelledin that riding. One reason for the intensity of the vote suppression effort In
Guelph may have been that by the end of the campaign, the Conservatives' calculations
had backfired in several different ways. We can examine these in ascending order of
importance, beginning with some unintended consequences of Stephen Harper's visit to
Guelph in early April.

(i) A first Conservative reverse: Harper's visit and vote-mobs

During the spring 2011 election, the Prime Ministers handlers did their best to
ensure that no-one but certified supporters got within sniffing distance of their man.
Journalists, sometimes placed behind an actual fence two or more car-lengths from the
leader and his microphone, were confined like naughty Sunday School children to a
total of just five questions per daywhile at some campaign events a chorus of the
faithful was on hand to shout down any reporter who, like the CBCs Terry Milewski,
dared to press a question that the Prime Minister didnt feel like answering.287
286

287

Sharon Kirkey, Postmedia News, Voters receive bogus phone calls, Victoria Times Colonist (3 May
2011), http://www.timescolonist.com/story-print.html?id=47165894&sponsor=.
Harpers supporters stand to shout down questions, Hamilton Spectator (24 April 2011),
http://www.thespec.com/news/elections/article/521296--harper-s-supporters-stand-to-shout-downquestions; Robert Benzie, Harper ducks questions on Governor General and coalition, Toronto Star
(30 April 2011), http://thestar.com/news/canada/politics/article/983414--harper-ducks-questions-ongovernor-general-and-coalition.

Guelph residents were allowed to attend events planned for Harper's April 4
Guelph visit only after registering for themand unfavourable publicity was generated
when several University of Guelph students were turned away from a rally they had
registered for. It emerged that Conservative functionaries, after trolling their Facebook
accounts, had decided to exclude them on the grounds that they might not think
favourably of Harper, and might even be hecklersbut the students, who by ill luck
were engaging and personable, said quite plausibly to reporters that they were
genuinely interested in learning about the views of all the political leaders in order to
make up their own minds about how to vote. As a result, some of the media coverage
generated by Harper's visit was deflected into the question of whether the Prime
Minister and his staff were using undemocratic, or even un-Canadian methods to
produce a misleading impression of support for his policies.288
It was a further piece of bad luck for the Conservative Party that the University
of Guelph had been on March 31 the point of origin of the vote mob, a variant form
of the dancing flash mobs that had recently become an international internet fad
groups of dancers that suddenly coalesced out of apparently casual passers-by in public
places in New York, Moscow, Antwerp, Copenhagen, Toronto and many other cities,
performed vigorous, elaborate, and sometimes mildly satirical formation dances to
recorded music that likewise seemed to come out of nowhere, and then, their
performance done, dispersed again into the crowds of now-delighted passers-byand
uploaded a video of the event on YouTube.
On March 29, 2011, CBC comedian and political commentator Rick Mercer had
devoted one of his weekly rants on The Rick Mercer Show to lamenting the political
passivity of young Canadians:
There are more than three million young, eligible voters in this
country, and as far as any of the political parties are concerned,
288

See Harper campaign screening un-Canadian: Ignatieff, CBC News (5 April 2011),
http://www.cbc.ca/news/politics/canadavotes2011/story/2011/04/05/cv-election-harper-ignatieff-rally923.html; Greg Layson, Years-old Facebook post linked to Guelph students removal from Harper
rally, GuelphMercury.com (7 April 2011),
http://www.guelphmercury.com/news/local/article/513684--years-old-facebook-post-linked-to-guelphstudent-s-removal-from-harper-rally. Although Ignatieff's term un-Canadian may itself feel like an
Americanism, this kind of screening of campaign events is indeed a recent import from the United
States: in the 2004 U.S. presidential election, people who had not been pre-screened for admission to
George W. Bush rallies were funnelled by police into special free speech zones several blocks away,
and people were arrested by police for wearing anti-Bush or anti-war T-shirts anywhere near a Bush
appearance.

you might as well all be dead. [....] It is the conventional wisdom

of all political parties that young people will not voteand the
parties, they like it that way: it's why your tuition keeps going up!
So please, if you are between the age of 18 and 25 and you want
to scare the hell out of the people that run this country, this time
around, do the unexpected: take twenty minutes out of your day,
and do what young people all over the world are dying to do:
Vote!289
University of Guelph students responded to this challenge two days later with a
non-partisan vote mob involving a hundred and fifty flag-waving students dancing
and jogging across campus to the sound track of Florence and the Machine's Dog Days
Are Over;290 and on April 4 with a second larger assembly in which some five hundred
students moved with mock stealth (backed by a sound track of the driving rhythms of
Glen Miller's band performing Sing Sing Sing) toward the location of Stephen
Harper's Guelph rally, outside which they unfurled a thirty-foot long banner
proclaiming, Surprise! We Are Voting!291 This initiative was imitated by vote mobs at
eighteen or more other Canadian universities between April 7 and May 1.292
Stephen Harper had dropped the writ for the 2011 election at a moment that
could hardly have been better timed to minimize the voting turnout of university and
college students, who in early May each year have just finished their final exams, and
are commonly in transit between their term-time residences and their family homes or
the places where they have found summer work. When Conservative Party
functionaries excluded pre-registered and professedly non-partisan students from a
Harper rally in Guelph, and then made it clear that members of the non-partisan vote
mob weren't going to be admitted either, they weren't doing the local campaign a
289

290

291

292

See Rick Mercer: Rick's Rant: Vote! YouTube (29 March 2011, uploaded 30 March 2011),
http://www.youtube.com/watch?v=225Mx6ya7SQ.
University of Guelph Vote MobDog Days are Over, YouTube (31 March 2011),
http://www.youtube.com/watch?v=SEf34V2rmaM.
University of Guelph Vote Mob II Surprise Harper ;-), YouTube (4 April 2011),
http://www.youtube.com/watch?v=XbGGjnoqfFs.
Vote mobs were staged (and YouTubed) at McMaster University and the University of Victoria (April
7), the University of Ottawa (April 11), McGill, the University of Calgary, and the University of
Northern British Columbia (April 14), Carleton University, Memorial University, and the University
of Lethbridge, (April 18), UBC and the University of Waterloo (April 20), Simon Fraser University
(April 21), Concordia University and Brandon University (April 22), University of Toronto
Mississauga (April 25), York University (April 26), the University of Winnipeg (April 27), and the
University of Western Ontario (May 1).

favour.
Three days later, in Hamilton, a number of the participants in a much smaller
McMaster University vote mob were admitted to a Harper rally, where they were filmed
standing disconsolately at the back of the halland on the same day members of the
vote-mob group were included in an Ignatieff town hall, where they got so far as to pose
a question to the leader. Ignatieff and Harper both made a point of shaking hands with
some of the students.293 But in Guelph the damage to the Conservatives' image had been
done.

(ii) A second Conservative problem: the candidate Marty Burke

A second unanticipated problem for the Guelph Conservatives stemmed from
their choice in 2009 of a candidate for the next election.
Marty Burke, who ran for the Conservatives in Guelph in 2011, had since 2004
given acerbic expression to his uncompromisingly right-wing opinions in a series of
letters to the editors of various newspapers. As Allan Woods of the Toronto Star
remarked on March 31, 2011, his public commentary [...] appear[ed] to be driven by a
deep hatred of the federal Liberal party. On that, he and Harper would be soul mates.294
In January 2004, for example, Burke reacted to the death of the seventh
Canadian soldier killed in Afghanistan: Another priceless Canadian soldier dies on a
near worthless operation, all in the name of saving face for a useless Liberal
government (Kitchener-Waterloo Record, 28 January 2004).295 However, once the
Harper government was in power, vowing never to cut and run and then setting a
2011 deadline for withdrawal, Burke had no further criticisms of Canada's participation
in the occupation of Afghanistan. And when as a consequence of its Middle Eastern
policies the Harper government failed in 2010 to win a seat on the UN Security
293

294

295

See McMaster Vote Mob on CBC The National, YouTube, http://www.youtube.com/watch?

v=EW5UTzAOL-k; and Hamilton 'vote mob' a 'victory' for students, CBC News (8 April 2011),
http://www.cbc.ca/news/politics/hamiltn-vote-mob-a-victory-for-students-1.996691.
Allan Woods, Tory candidate's views a matter of opinion, Toronto Star (31 March 2011),
http://www.thestar.com/news/ontario/2011/03/31/tory_candidates_views_a_matter_of_opinion.html.
This and the following quotations from Marty Burke's letters to the editor are drawn from two
sources: In their own words: Guelph Conservative candidate Marty Burke, Liberal.ca (4 April
2011), http://www.liberal.ca/newsroom/news-release/words-guelph-conservative-candidate-martyburke/; and Woods, Tory candidate's views a matter of opinion.

Council, he expressed scorn for the United Nations: Do we need the approval of such
an organization? I think not (National Post, 14 October 2010).
In August 2005, Burke ridiculed the appointment of Michalle Jean (and that of
her predecessor, Adrienne Clarkson) as Governor-General:
I wonder what Las Vegas would give as odds on the chance that a
female, visible minority, immigrant, former CBC commentator
with an odd husband would be replaced as Governor General by a
female, visible minority, immigrant, former CBC commentator
with an odd husband? Canada's reserve of female, visible
minority, immigrant, former CBC commentators with odd
husbands available to become the governor general has been
dangerously depleted to crisis levels. In fact, by my calculations,
there are none left. (Guelph Mercury, 13 August 2005).
Burke rather strangely described Michalle Jean in the same letter as an agent
provocateur for the French Republic, reportedly having supported Quebec separation.
(At the time he wrote this, it was more than forty years since General de Gaulle,
President of the French Republic, had famously cried, Vive le Qubec libre!) Fear
and loathing of Qubec was Burke's theme again in December 2008: The separatist
wolves have pounced [...]. Watch the power flow almost exclusively to Toronto and
Quebec. Watch the money flow from the west to the gaping maw of Quebec (Guelph
Mercury, 3 December 2008).
Burke expressed equally divisive views on issues of social policy, denouncing
Prime Minister Paul Martin for spew[ing] gobs of tax money on ill-defined, openended programs like child care and health care (Guelph Mercury, 6 July 2005);
declaring that The nanny-state Liberal child-care policy seems designedby accident
or by intent, I do not knowto drive another wedge into the heart of Canadian lifethe
family (Guelph Mercury, 17 December 2005); and proposing on his website that 40%
of health care in Canada is already privately provided [...]. I see no reason why this
percentage cannot be increased [...].296 And he believed that certain forms of health
care should not be provided at all: during the election campaign, it emerged that Burke
had been endorsed by the Campaign Life Coalition after responding 'no' to a coalition
296

According to the Liberal Party website from which I have quoted (In their own words: Guelph
Conservative candidate Marty Burke, Liberal.ca), this statement had by early April 2011 been
removed from Burke's website.

survey that asked, 'Are there any circumstances under which you believe a woman
should have access to abortion?'297
Burke was, on the other hand, a firm supporter of military spending, including
the Harper government's controversial plan to purchase the appallingly expensive and
absurdly under-performing Lockheed F-35 fighter-bomber.298 Indeed, he declared that a
desire to prevent any repetition of the military cutbacks of the 1990s is one of the main
reasons I am involved in politics. Never again do I want to see our military abused in
such a way.299
Though Marty Burke was by all accounts an assiduous and personable door-todoor campaigner, in other respects his campaign was inept. The Harper Conservatives
had adopted a strategy of avoiding direct debate with their opponents in events such as
all-candidates' meetings, and of getting their message across to the public through a
barrage of (largely negative) advertising, together with media appearances of the kind
that could be carefully controlled. In Guelph, this strategy turned out badly.
Burke had some reason to fear that Liberal supporters would use all-candidate
debates to question him about divergences between some of his past views and
Conservative Party policy.300 But avoiding those meetings also had a cost.
On April 12, Marty Burke was the only candidate who did not take part in an
all-candidates' debate, moderated by political science professor Tim Mau, that filled one
of the largest lecture halls of the University of Guelph to capacity. Incumbent MP Frank
Valeriote criticized this stunning show of disregard in a statement that was carried by
297

298

299
300

Steve Rennie, Liberal Robocall Fine: CRTC Punishes Grits For Not Identifying Source Of Guelph
Message, Huffington Post (24 August 2012), http://www.huffingtonpost.ca/2012/08/24/liberalrobocall-fine-guelph.crtc_n_1827915.html.
The text of Burke's letter on this subject to the Guelph Mercury (31 March 2011) is reproduced in
Meet Marty Burke, the failed Tory candidate who may bring down the Harper Government,
Loon: Canada's Voice in the Wilderness (20 May 2012), http://looncanada.com/2012/05/20/meetmarty-burke-the-failed-tory-candidate-who-may-bring-down-the-harper-government/. See also Jim
Trautman, What is Burke's take now on F-35 costs? Guelph Mercury (26 December 2012),
http://www.guelphmercury.com/opinion-story/2790769-what-is-burke-s-take-now-on-f-35-costs-/.
For a discussion of some of the reasons, both financial and technical, for opposing the purchase of this
aircraft, see my article Stephen Harper's Stealth Campaign to Purchase Not-So-Stealthy F-35
Fighter-Bombers, Centre for Research on Globalization (27 April 2011),
http://www.globalresearch.ca/index.php?context=va&aid=24519.
Quoted by Woods, Tory candidate's views a matter of opinion.
One Liberal blogger, after noting Burke's letters on Afghanistan and on the last two GovernorsGeneral, recommended doing just that: see Scott Tribe, Guelph voters: take a good hard look at your
Conservative candidate Marty Burke's views, Scottdiatribe (1 April 2011),
http://scottdiatribe.canflag.com/2011/04/01/guelph-voters-take-a-good-hard-look-at-yourconservative-candidate-marty-burkes-views/: He may hide from the media, but he can't hide from
the public forever. He'll have to show up at those all-candidate debates. The voters of Guelph should
be ready to ask him if he still subscribes to those views....

the Guelph Mercury's Guelph Votes blog:

Burke's refusal to attend today's debate confirms that he doesn't
care about youth engagement, or about the opinions of the people
he wants to represent. Being a Member of Parliament for
Guelphites means attending public events and transparently
telling the people how you're going to represent them in Ottawa.
[....] It's amazing to me that Burke refuses to show up in the riding
and that he just generally refuses to tell the people of Guelph what
he stands for.301
Two days later, on April 14, CFRU 93.3 FM, the University of Guelph's twenty-fourhours-per-day, seven-days-a-week radio station, sent out a press release expressing
disappointment over Burke's refusal to be interviewed on its Election Radio show.302
And on April 21, Burke withdrew on grounds of health, giving just 90 minutes' notice,
from an all-candidates' forum arranged by the Guelph Mercuryand was again
criticized by Valeriote for his absence.
By the next day, as Greg Layson of the Guelph Mercury wrote, Burke was back
on his feet and banging on doors; he was also angrily demanding an apology from
Valeriote:303
Liberal candidate Frank Valeriote stated to the Guelph Mercury
that I was avoiding debates, even though I have attended
several. I am calling on Frank Valeriote to withdraw this offensive
and untrue comment. Having served for 23 years in the military, I
have suffered several injuries relating to that profession. One of
these injuries involves my back, which from time to time causes
pain, and it was at the recommendation of my chiropractor and
doctor that I not attend last night's debate. It is highly
disingenuous that Frank Valeriote has missed 33 votes in the
301

302

303

Quoted by Adam A. Donaldson, U of G Hosts (Nearly) All Candidates Debate, Guelph Politico (12
April 2011), http://guelphpolitico.blogspot.ca/2011/04/u-of-g-hosts-nearly-all-candidates.html.
CFRU regretted that Conservative candidate Marty Burke has not responded to e-mail invitations
and a personal office visit to come on the show to discuss his candidature. [....] Election Radio's
mandate is to provide fair, balanced and wide ranging coverage to help listeners make an informed
decision on election day. Quoted by Adam A. Donaldson, Solidarity in the Struggle to Get Marty
Burke on the Record, Guelph Politico (14 April 2011),
http://guelphpolitico.blogspot.ca/2011/04/solidarity-in-struggle-to-get-marty.html.
Greg Layson, Burke back on campaign trail, Guelph Mercury (22 April 2011),
http://www.guelphmercury.com/news-story/2767361-burke-back-on-campaign-trail/.

House of Commons and yet has the audacity to accuse someone

of avoiding a debate due to an injury suffered while in the
military. I am sure that Frank Valeriote misspoke in his comment
and was not speaking against the hardships veterans with injuries
from their military service face. [...] I am calling on him to
immediately apologize [...].304
This wordy, self-regarding and combative message was not politically astute.
Had Burke been attending to the optics of the national campaign, he would have noticed
how much sympathy NDP leader Jack Layton was garnering for the gameness with
which, though in obvious pain, he was spryly limping, with a walking stick in one hand
and a smile on his face, through campaign events. Guelph voters would no doubt have
responded with the same generosity to Burke in a similar state at the all-candidates'
forum. But a candidate, especially one who has boasted of putting in twelve-hour days
at canvassing over the previous weeks, might be thought to lack Jack Layton's kind of
courage when he withdraws from a campaign event pleading back painonly to be
fully recovered a day later.
Some Guelph voters were also beginning to find the manner and frequency of
Burke's references to his years of military service tiresome. Adam Donaldson wrote in
his Guelph Politico blog that
His response to a question on [April 19] in the Guelph Tribune,
about the long-form census, began with a reference to his nearly
two dozen years in the Canadian Forces. What the one has to do
with the other, I don't know. While I recognize and appreciate
Burke's service to this country, it does not entitle him to a Getout-of-answering-the-questions-free card when it comes to
discussing the issues.305
Burke's attempt in the case of the Guelph Mercury all-candidates forum to slide from
the question of his own non-participation in debates to that of whether Valeriote
respected the sufferings of injured veterans seemed clumsier still. 306 And since Burke
304
305

306

Quoted by Layson, Burke back on campaign trail.

Adam A. Donaldson, With Regret, The Case Against Marty Burke, Guelph Politico (21 April 2011),
http://guelphpolitico.blogspot.ca/2011/04/with-regret-case-against-marty-burke.html.
Although Burke's own support for the government's record in its treatment of injured veterans did not
become an issue during the campaign, it may be worth noting that that record has been a shameful
one. In 2006 the Harper government replaced the former system of compensating wounded and

framed what was at issue as a point of truth, it was easy for journalists (and Frank
Valeriote) to note that he had participated in just two out of six debates, not several
while to cap the matter, his attack on Valeriote's parliamentary voting record turned out
to be misleading.307
One might wonder whether the great eighteenth-century Anglo-Irish
parliamentarian Edmund Burke, an ideological founder of British conservativism, could
have been a distant ancestor. If so, Marty Burke did not inherit his rhetorical skills.
Even in the debate hosted by the Guelph Chamber of Commerce, where as Adam
Donaldson suggested, the conditions [...] were perhaps most favourable to Burke to
make a strong case for himself and Conservative policies, it seems he was
disappointing: Instead he told his opponents to 'take a chill pill' about reservations on a
trade agreement with the European Union.308

(iii) A third problem: Communications Director Michael Sona

Given that Marty Burke did not suffer fools gladly, and thought his political
adversaries to be either fools or villains, it seems possible that his campaign staff may
have deliberately sought to minimize his exposure to situations in which he might be
confronted by opposition politicians and critical (or simply curious) journalists. 309 It was

307

308
309

disabled veterans under the Pension Act with what they termed the New Veterans Charter. In a report
dated June 2013, but not released until October 1, 2013, Veterans Ombudsman Guy Parent was
sharply critical of the current system, declaring that It is simply not acceptable to let veterans who
have sacrificed the most for their country [...] live their lives with unmet financial needs. As Sonja
Puzic reported for CTV News, The report found that hundreds of the most severely disabled veterans
will take a financial hit after they turn 65 because they do not have military pensions and some of
their charter benefits will end. More than half of veterans who are assessed as 'totally and
permanently incapacitated' and can't find work are not awarded impairment benefits. This was a
matter of concern to veterans at the time of the 2011 election: The Royal Canadian Legion said it has
been raising the same issues for years.... See Puzic, Canada's veterans charter failing disabled
soldiers: ombudsman, CTV News (1 October 2013), http://www.ctvnews.ca/canada/canada-sveterans-charter-failing-disabled-soldiers-ombudsman-1.1478144. Burke's position of full-throated
support for the Harper government's position, together with frequent reminders of his own status as a
veteran, smacks of hypocrisy.
See Layson, Burke back on campaign trail; and Donaldson, With Regret, The Case Against Marty
Burke. In brief, 362 votes were held in the preceding parliament; Valeriote was absent from Ottawa
for 27 votes, or 7.4 percent of the total, and most of those absences are accounted for by constituency
or Agriculture Committee business. He stated that he abstained from another six votes either because
his party abstained from them or else because he disagreed with the position taken by his party. This
looks like the voting record of a conscientious and hard-working MP.
Donaldson, With Regret, The Case Against Marty Burke.
Some of the all-candidates' debates (those organized by the Chamber of Commerce and the Guelph

noticed during the campaign that Burke's contacts with the media were largely through
emailed press releaseswhich were most often written and sent out not by Burke
himself, but by his 23-year-old Director of Communications, Michael Sona. Indeed,
Guelph journalists were aware that Michael Sona had a surprisingly prominent role, for
one so young, in the Marty Burke campaign. Phil Andrews of the Guelph Mercury has
written that
An email chain, apparently forwarded accidentally to the
Mercury from a Burke campaign insider just prior to the 2011
campaign's launch, suggests Sona received national party-level
training about running the campaign. [....] It also suggests Sona
exerted a tremendous amount of influence in how the local
campaign would be waged [...]. The email [...] indicates senior
local campaign members chafed at the need to keep Sona in the
loop and receive his blessing on potential actions.310
During the election, Andrews adds,
the Mercury experienced a local Conservative campaign that
offered Sona much more frequently as the public voice for the
campaign than Burke. We would seek comment from Burke on
campaign stories and most often get statements issued by Sona or
interviews with him. He was the campaign's director of
communications but seemingly more. No other local campaign
had communications directors so commonlyif eversupplant
their candidates as the person of record for media coverage during
the election.311
Not surprisingly, given his age and inexperience, Michael Sona made some
errors in judgment during the campaign. One of these was pointed out by Scott Tracey
on the Guelph Mercury's Guelph Votes blog on April 23. Sona had sent out a press

310
311

Mercury, for example) were in fact restricted to the candidates of the four major parties (Liberals,
Conservatives, New Democrats, and Greens); others, such as the on-campus debate moderated by Tim
Mau, also included candidates seeking to advance causes such as animal rights and communism. (The
Canadian Communist Party, which was founded in Guelph in 1921, was ably represented in 2011 by
University of Guelph student Drew Garvie.) In such company as this, a Conservative candidate who
could be provoked into making incendiary remarks by the Liberal, NDP, and Green candidates might
have been in danger of spontaneous combustion.
Andrews, Michael Sona's changed political fortunes.
Ibid.

release advertising a fundraising luncheon to be held at the exclusive Cutten Club and
featuring Marty Burke together with Bill Davis, the widely-esteemed former
Progressive Conservative Premier of Ontario, who could be counted on for nonabrasive political commentary and reminiscences of the glory days when his friend Bill
Winegard, a former President of the University of Guelph, had presided over the federal
riding of Guelph as a minister in Brian Mulroney's Progressive Conservative
government. When Tracey inquired about covering the event, Sona informed him that
Burke and Davis would take media questionsbut that reporters would have to pay the
full $100 registration fee (while being eligible for a $65 tax receipt). Blogger and
alternative media journalist Adam Donaldson was astonished that Sona wants to make
media donate to the Burke campaign, while getting free coverageand also
continuing to dodg[e] most requests for media questions and interviews [...].312
But by this point in the campaign, Michael Sona had already been involved in a
much more serious misjudgment which was linked (once again) to the question of
university students' involvement in the election.
Elections Canada had on two previous occasions made special accommodations
for students at the University of Guelph. The agency's local officers did so again in
2011, arranging a special ballot on April 13, 2011 for students who, after their final
exams, wouldnt be in Guelph either for the advance polls, scheduled for April 22-25, or
on election day. Alastair Summerlee, the President of the University of Guelph, thought
this a good idea: having promised to go Naavi (as in the film Avatar) if 1,500 or more
students signed a pledge to cast votes in the upcoming election, he duly submitted to
being painted a vivid blue from the neck up in the University Centre building on the
afternoon of the April 13, while, as the Guelph Mercury reported, a steady queue of
students lined up to vote at the special ballot set up in the same building.313
Rather revealingly, senior Conservative Party officials thought this special poll
improper, and wanted it stopped; their disapproval appears to have incited Michael
Sona, a recent University of Guelph graduate, to take direct action. Sona has said that
Fred DeLorey, the party's communications director, told him to intervene at the
university polling station, over Sona's objections that the optics would not serve the
312

313

Adam A. Donaldson, Michael Sona, You've Done It Again, Guelph Politico (23 April 2011),
http://guelphpolitico.blogspot.ca/2011/04/michael-sona-youve-doneit-again.html.
Rob OFlanagan, Alastair, or rather Avatar Summerlee turns blue to promote the vote, Guelph
Mercury (14 April 2011), http://www.guelphmercury.com/news/local/article/516746--alastair-orrather-avatar-summerlee-turns-blue-to-promote-the-vote.

party well;314 and according to the Guelph Mercury, Two sources within the local
Conservative candidate's campaign team have confirmed Michael Sona was dispatched
to the University Centre April 13, 2011, to 'stall' voting until senior Tory officials could
arrive and figure out what was going on. DeLorey, however, claimed in an email to the
Guelph Mercury that party headquarters told the local campaign simply that it should
send someone to observe and watch the sealing of the [ballot] box; That, he wrote,
was our only instruction.315
Entering the central hall of the University Centre where the polling was being
carried out, Sona declared to Elections Canada officials that it was illegal, and
according to one witness tried to put a stop to it by grabbing for a ballot box; he then
made mobile phone calls to Conservative officials from the polling station. Sona thus
managed in short order to violate at least three prohibitions laid out in the Canada
Elections Actin section 281(b), which forbids wilful interference or attempted
interference with an elector when marking a ballot or special ballot; section 281(g),
which forbids wilfully prevent[ing] or endeavour[ing] to prevent an elector from
voting at an election; and section 136(4), which specifies that A representative of a
candidate shall not use a communications device at a polling station during polling
hours.316
When internet reports of this episode began to go viral,317 the Conservative Party
of Canada's national campaign issued a media release in which it vehemently denie[d]
that any of its workers or volunteers interfered, or that any of Marty Burkes workers
or volunteers touched a ballot box or ballot.318 However, statements by witnesses of
314

315

316

317

318

I couldn't have engineered 'massive' robocalls scheme: former Tory staffer, Global News (1
November 2012), http://www.globalnews.ca/news/303890/i-couldnt-have-engineered-massiverobocalls-scheme-former-tory-staffer-4/.
Scott Tracey, Sona following national Conservative Party orders at U of G special ballot, sources
say, Guelph Mercury (28 March 2012), http://www.guelphmercury.com/news-story/2770244-sonafollowing-national-conservative-party-orders-at-u-of-g-special-ba/. See also Phil Andrews, Michael
Sona's changed political fortunes, Guelph Mercury (12 April 2013),
http://www.guelphmercury.com/opinion-story/2789845-michael-sona-s-changed-political-fortunes/,
who writes that when The Burke campaign and [the] Conservative party's national team took issue
with that vote being staged in the manner that it was, Sona was dispatched to seek to challenge the
voting process and call for it to be shut down.
Canada Elections Act, http://www.elections.ca/content.aspx?
section=res&document=index&dir=loi/fel/cea&lang=e. Sona has consistently denied that he made
any attempt to touch the ballot box, but his other violations of the Canada Elections Act are a matter
of public record.
See for example Harper Youth goons try to seize ballot box [updated], Dawgs Blawg: News, Views
and Analysis (24 April 2011), http://drdawgsblawg.ca/2011/04/harper-youth-goons-try-to-seize-ballotbox.shtml.
Greg Layson, Elections Canada rules votes stand from U of G special ballot, The Record.com (15

Sonas lawbreaking were carried by the Kitchener-Waterloo Record, Maclean's, and the
Globe and Mail on April 15319and three days later, Conservative attempts to deny that
Michael Sona had even been on campus on April 13 were demolished by the Guelph
Mercurys publication of four photographs of Sona engaged in an altercation in front of
the ballot box with an Elections Canada official and using his cellphone at the polling
station.320
This event was an important setback for the Marty Burke campaignand so also
was the campaign's attempt, supported by a letter from Conservative Party lawyer
Arthur Hamilton, to have the votes cast at the special ballot disallowed. 321 University of
Guelph history professor Matthew Hayday found the Guelph Conservatives' behaviour
mind-boggling:
First, they make a point of keeping members of the U of Guelph
vote mob away from Harper's rally. Then, [Burke] failed to turn
up at this week's all-candidates debate at the university. And now,
in a move that I find jaw-droppingly stupid, his agent is trying to
exclude the 700 votes cast at a special advance ballot held at the
university yesterday. According to [...] the Guelph Mercury, such
special advance polls are routine to try to encourage voter turnout
among segments of the population that often have lower
participation rates. Certainly youth qualify, with a less than 40%
turnout in the last election.
I hope this incident gets nation-wide coverage. The
Conservative Party of Canada doesn't want students to vote, and

319

320

321

April 2011), http://www.therecord.com/news/elections/article/517489--elections-canada-rules-votesstand-from-u-or-g-special-ballot.

Layson, Elections Canada rules votes stand from U of G special ballot; Aaron Wherry, Voter
engagement, Maclean's (15 April 2011), http://www2.macleans.ca/tag/michael-sona/; and James
Bradshaw and Bill Curry, Elections Canada puts end to special ballotvoting, Globe and Mail (15
April 2011), http://www.theglobeandmail.com/news/politics/elections-canada-puts-end-to-specialballot-voting/article1987880/.
Greg Layson, Pictures Worth a Thousand Words, Guelph Votes: A Guelph Mercury blog about
federal election campaigning (128 April 2011),
http://guelphmercury.blogs.com/guelphvotes/2011/04/pictures-worth-a-thousand-words.html.
See James Bow, A Very Disturbing Development, Bow. James Bow (14 April 2011),
http://bowjamesbow.ca/2011/04/14/a-very-disturbi.shtml; and James Bradshaw, Bill Curry, and John
Ibbitson, Elections Canada validates contested student ballot in Guelph, Globe and Mail (c. 20
April 2011, updated 10 September 2012), http://www.m.theglobeandmail.com/news/politics/ottawanotebook/elections-canada-validates-contested-student-ballot-in-guelph/article1986799/?
service=mobile.

will take special measures to exclude their ballots.322

The impression conveyed was that the Guelph Conservatives had given up on
one important sector of the electorate (for despite the rapid recent growth of Guelph's
southern suburbs, many of whose residents commute to work in the Greater Toronto
region, Guelph remains very largely a university town). Their refusal to engage in
conversation with the university community, and their strident opposition to an attempt
to encourage student participation in the political process made it easy for opponents to
represent them as a party that had ceased to be inclusive.
The three reversals or 'backfires' discussed here unquestionably contributed to
Marty Burke's defeat in the 2011 election. The third one also made Michael Sona
vulnerable to suspicions of having been involved in other, much more serious forms of
vote suppression.
Michael Harris of iPolitics, in an article based on an interview with Sona, has
suggested that from this young political operative's perspective the contest between
Frank Valeriote and Marty Burke was brutal [...], a battle in which the Liberal
prevailed. Part of the nastiness had been mutual vilificationwhich included robocall
campaigns. Michael Sona was a warrior in that scorched-earth battle, writing the
robocall scripts in Guelph.323 (The reference is to normal campaign communications:
legal robocalls, properly sourced according to CRTC regulations.)
One skirmish in this battle arose out of the regularly scheduled advance polls a
week before election day. On April 25, the Valeriote campaign sent out a news release
alleging that Conservative scrutineers at the advance poll in the Best Western Hotel near
the university campus were reportedly slowing down the voting process in an attempt
to discourage people from voting by challenging the credentials of people waiting in
line to vote; and on April 26 Frank Valeriote lodged a formal complaint with returning
officer Ann Budra, claiming that these tactics delayed voters who were unable to wait
over 45 minutes to cast their ballots. The Burke campaign responded with a statement,
no doubt written by Michael Sona, expressing pleasure at the Valeriote campaign's
new-found interest in following the Canada Elections Act, and accusing the Liberals of
322

323

Matthew Hayday, Guelph Conservatives continue to try to exclude youth voters, Pample the Moose
(14 April 2011), http://pamplemoose.blogspot.ca/2011/04/guelph-conservatives-continue-to-tryto.html.
Michael Harris, Michael Sona in exile, iPolitics (23 June 2013),
http://www.ipolitics.ca/2013/06/23/michael-sona-in-exile/.

having violated the act at the special ballot held on the university campus.324
Another skirmish involved the April 30 robocall in which the Valeriote campaign
effectively (and accurately) attacked Burke's position on women's reproductive rights
a call for which that campaign was rightly fined by the CRTC for omitting the required
source information. Referring to this call, Sona acknowledged to Michael Harris that he
had himself felt tempted to step outside the bounds of legality:
We were getting hit by unidentified robocalls, very, very
negative stuff. We wanted to mount a robocall campaign against
Frank Valeriote that couldn't be traced back to usFrank the FlipFlopper. But none of us knew how to do it. So I asked John White
(a fellow campaign worker) and he told me to contact Matt
McBain (Conservative war room official) to find out. McBain
emailed White to see if I was okay, White said I was on the team
and a good guy and to go ahead and talk to me. We talked. I later
texted McBain but never heard back.325
Both White and McBain told Elections Canada investigators that they had
piously cautioned Sona against engaging in any improper activities that the party would
not approve of. Whether for this reason, or because at this late stage in the campaign
there was no time to organize a responseor possibly because officials in the
Conservative war room knew that a telephone fraud vote-suppression campaign had
already been launched in Guelphnothing was done. By Michael Sona's own account,
this is as close as he came, after the special ballot incident at the University of Guelph,
to any further illegality.

324

325

Scott Tracey, Voter suppression part of Burke campaign, Guelph MP alleges, Guelph Mercury (6
March 2012), http://www.guelphmercury.com/news-story/2762109-voter-suppression-part-of-burkecampaign-guelph-mp-alleges/. Sona's claim about Liberal violations of the Canada Elections Act
echoed the claims of Conservative bloggers who had published photographs of people holding Liberal
campaign materials outside one of the entrances of the University Centre where the special ballot was
being held. The entrance shown in the photographs appears to be the south entrance of the building,
which is some two hundred feet from the space in which the ballot box was located.
Ibid.

Chapter 8. The ground zero of electoral fraud: the Pierre

Poutine robocalls

(i) Three responses to telephone fraud: Valeriote, Prescott, Sona

To the degree that it linked the Guelph Conservatives with the idea of vote
suppression in the public mind, the special ballot incident may also have reduced the
effectiveness of the telephone fraud, which began in mid-April with harassment calls in
Guelph and elsewhere in Ontario. The impact of the fraud in Guelph was also arguably
moderated by the responsivenessor combativenessof Frank Valeriote's campaign,
which in contrast to the sometimes strange passivity of the national Liberal campaign,
avoided placing any naive trust in the capacity of Canadians to identify and dissociate
themselves from the nastiness of Conservative attack politics. It seems characteristic
that while Liberal headquarters in some other ridings remained inactive in the face of
the end of-campaign misinformation calls, Valeriote's campaign responded on election
day to news of these calls both with an automated telephone call exposing the fraud, 326
and with a Twitter message warning people to Disregard these calls. It's a lie to
suppress the vote.327 Moreover, to assist people who had been misled by the fraudulent
calls, Valeriote promptly dispatched a campaign worker to the Old Quebec Street Mall,
armed with a binder of polling maps, so he could redirect supporters back to the right
place.328
More interesting than the Valeriote campaign's responses to the vote suppression
fraud, however, are those of two members of Marty Burke's campaign team. The first
set of responses, by Andrew Prescott, Marty Burke's Deputy Campaign Manager, are
particularly intriguing because they anticipated by two days the main onset of the
326

327

328

This warning call sent out by the Valeriote campaign is mentioned by Greg Layson, Voters receive
hoax calls about changes to polling stations, Guelph Mercury (2 May 2011),
http://www.guelphmercury.com/news/story/2767523-voters-receive-hoax-calls-about-changes-topolling-stations/.
Quoted by Sharon Kirkey, Elections Canada warns voters of bogus phone calls giving false
information, National Post (2 May 2011), http://news.natiuonalpost.com/2011/05/02/electionscanada-warns-voters-of-bogus-phone-calls-giving-false-information/.
Maher and McGregor, Firm with Tory links traced to election day 'robocalls' that tried to discourage
voters.

telephone fraud to which they were ostensibly responding.

On April 30, 2011, Prescott sent out four messages on Twitter blaming the
Liberal Party for vote-suppression fraud. In the first he wrote: Anti-#CPC
[Conservative Party of Canada] voter suppression phone calls currently underway in
Guelph, suspecting #LPC [Liberal Party of Canada]. Prescott's second tweet claimed
that the calls were using spoofed Caller-ID of Burke campaign. I 'wonder' who it could
be.... The third tweet asserted that #LPC internal polling must be BAD, considering
the dirty voter suppression calls underway in Guelph.... In a fourth tweet, directed to
the CBC's Kady O'Malley, whose widely read reports keep close track of political
goings-on, Prescott attempted to provide her with a ready-made interpretation of this
breaking news: he suggested that the Liberals' internal polling must be REALLY BAD,
voter suppression calls in Guelph AND Halton anywhere else?329
It is hard to know what to make of the fact that, as Glen McGregor and Stephen
Maher note, these tweets were sent on the same day on which the infamous 'Pierre
Poutine' activated the burner cellphone used to launch his robocall blitz on voters in
Guelph330which is to say, two days before the polling-station misinformation calls
sent from RackNine in Edmonton on Poutine's instructions actually went out to voters in
that riding. The statement in the second tweet that the calls were using spoofed CallerID of Burke campaign might be taken to imply that Prescott was referring to robocalls
which would indeed seem incriminatingbut since it is also possible to falsify the
Caller-ID in live calls, he could have been referring instead to live calls. I am not aware
of any media reports of live vote-suppression calls in Guelph as early as April 30, but
have no difficulty believing they were being made on that day: such calls had begun
elsewhere on April 29 and were definitely being received in Guelph by May 1. 331 The
possibility that Prescott might have been responding to the Valeriote campaign's
unsourced robocall attacking Marty Burke's position on women's reproductive rights
can be dismissed: as Glen McGregor and Stephen Maher have remarked, that was not a
329

330
331

Glen McGregor and Stephen Maher, Tory campaign worker in Guelph tweeted robocall warning two
days before vote, Ottawa Citizen (9 March 2012),
http://www.ottawacitizen.com/life/Guelph+Tory+campaign+worker+tweeted+robocall+alert+two+day
s+before+vote/.
Ibid.
Greg Layson wrote on May 2 of a Guelph resident who received a live misinformation call on May 1,
and then on election day, after receiving an automated call from the Valeriote campaign warning of the
misinformation calls, phoned the local number the live operator had given him and was greeted with
a recorded message from 'the Conservative Party of Canada' and asked to leave a message. See
Layson, Voters receive hoax calls about changes to polling stations.

vote-suppression call; it came with the number 226-209-3758 in the Caller ID, the
outgoing-only number of the call centre used by the Valeriote Liberals; and there was
no sign it was from Burke's campaign,332 which indeed it was urging voters to oppose.
Even on a sympathetic reading, Prescott's messages give an impression of
dishonesty, if only for the fact that they insistently blame the Liberal Party for vote
suppression calls which all the evidence we possess indicates came rather from the
Conservatives. But Prescott was not the only member of the Burke campaign to claim
that the Conservative Party was falsely made to appear responsible for vote-suppression
calls.
On April 9, 2012, the National Post reported that a complaint about votesuppression calls in Guelph had been laid by Ken Morgan, Marty Burke's Campaign
Manager, on behalf of Conservative supporters in Guelph who had received live calls
falsely informing them their polling station had been changed. The phone number given
in these calls led to a recording stating 'This is the Conservative Party of Canada'an
attribution Morgan believed to be deceptive. In fact, the phone number given in the calls
Morgan complained of, 519-479-0031, was the same number, acknowledged by Fred
DeLorey as belonging to Responsive Marketing Group, from which Carolyn Siopiolosz
of St. Clements, Ontario had received her misleading call. 333 Ironically, Morgan was
complaining about calls made by RMG and paid for by his own political party.
It seems possible that Andrew Prescott's tweets could have been prompted by
live vote-suppression calls from the same source. I speculated in Chapter 3 that the
organizers of a vote-suppression campaign may have wanted some of their own
supporters to receive calls in order to confuse the issue of who was responsible. If RMG
vote-suppression calls began in Guelph on April 29 or the morning of April 30, there
would have been time, before Prescott's tweets went out, for Conservative supporters
who by accident or design had received such calls to have contacted the Burke
campaign office. This possibility could be taken to imply that Prescott and Morgan had
no inside knowledge relating to the RMG calls, and genuinely believed the Guelph
Conservatives to be doubly victimized by calls targeting their supporters and making
332

333

Glen McGregor and Stephen Maher, Abortion robocall attacking Tories in Guelph was not voter
suppression: Liberals, National Post (12 March 2012),
http://news.nationalpost.com/2012/03/12/liberals-say-abortion-robocall-not-voter-suppression/.
See National Post Staff, Conservative alleges 'live calls' misled supporters in election, National
Post (9 April 2012), http://news.nationalpost.com/2012/04/09/conservative-alleges-live-calls-misledsupporters-in-election/.

their party seem responsible.

That in turn would suggest a curious disarticulation of the vote-suppression
campaign. As we will shortly see, there are reasons for suspecting Prescott and Morgan
of involvement in the Pierre Poutine robocallsof participation, that is to say, in what
the similarity in robocall scripts used across the country on May 2 shows to have been a
national vote-suppression campaign. Taken together, and at face value, Prescott's tweets
and Morgan's complaint could indicate that they were unaware of the Conservative
Party's responsibility in the preceding days for what appears to have been a separately
organized part of the campaign: the live-operator calls that the Elections Canada emails
reveal to have been placed between April 29 and May 1 in ridings from Newfoundland
to Manitoba.
But if one cannot dismiss the possibility that Prescott had no inside knowledge
of the calls, and was genuinely shocked that they referred recipients to the Burke
campaign's telephone number, it is also possible that he understood very well what was
going on, that he recognized (with some concern) that the vote-suppression calls in
Guelphlike those referred to elsewhere in the Elections Canada emailscontained the
same source information as legitimate get-out-the-vote calls, and that he was
maliciously seeking to throw the blame for them onto the Liberal Party. The apparently
innocent question with which his tweet to Kady O'Malley endsvoter suppression
calls in Guelph AND Halton ... anywhere else?is nudging her to cover this story; it
might also suggest that Prescott knew very well that vote suppression calls were being
sent out elsewhere.
Prescott offered readers of his tweets, and O'Malley in particular, a plausiblesounding motive: the Liberals were acting out of desperation because of what internal
polling told them about their declining support. But this insinuation could be doubleedgedfor if the Burke campaign was doing competent polling, Prescott would have
known by this point that his own candidate was trailing Frank Valeriote by a significant
margin. If anyone in Guelph was tempted by polling data into adopting what Prescott
recognized as a dirty tactic, it would have been his own team.
Prescott's tweets could be understood as showing that he had been schooled in
the advantage of being the first to get an interpretation into the public sphere, of
controlling or owning a news story: this would be the point both of his timing and of
his insistent attempts to deflect blame away from his own party and onto the Guelph

Liberals.
Prescott's colleague Michael Sona appears to have received a similar training.
Once the robocall campaign in Guelph was actually launched, on May 2, 2011, Greg
Layson reported that Burkes campaign was the first to respond to the bogus calls:
Today, many of our supporters have received misleading phone
calls regarding voting in the General Election. This group is
telling them that their polling location has changed. This is
absolutely false, and has no place in the democratic process,
Burkes director of communications Michael Sona wrote in an
email. We hope the perpetrators of these unethical actions will
cease their tactics immediately.334
Michael Harris writes that Sona's press release about the robocalls in Guelph
went out at 10:13 a.m., just minutes after the infamous Pierre Poutine calls were
made.335 But in fact the calls were still underway when this press release was issued:
according to Elections Canada investigator Allan Mathews, fake polling-change
messages supposedly from Elections Canada were sent to 7,676 numbers in Guelph
between 10:03 a.m. and 10:14 a.m.336
One might guess that to draft even so simple a press release as this and send it
out would take about five minutes. The falsity of its opening statement, which was in
any case obvious, is thus a certainty. We know that this wave of robocalls in Guelph was
sent by RackNine to people on the CIMS list of non-supporters in the riding, which
means that Conservative Party supporters could have received calls only as an
accidental result of data entry errors. The possibility that any (let alone many)
Conservative supporters who received stray calls would have had time to notify the
Marty Burke campaign office before the moment, some five minutes after the first calls
went out, when Michael Sona sat down to draft his press release, or the moment five
minutes later when he sent it out, is vanishingly small; and the possibility that nonConservatives who had received vote-suppression robocalls would have contacted the
334

335
336

Greg Layson, Voters receive hoax calls about changes to polling stations, Kitchener-Waterloo
Record (2 May 2011), http://www.therecord.com/news/elections/article/535766--guelph-votersreceiving-hoax-calls-about-changes-to-polling-stations.
Harris, Michael Sona in exile.
Glen McGregor and Stephen Maher, Newly revealed 'Pierre Poutine' robocall appeared to be from
Liberal: Elections Canada, National Post (23 March 2012),
http://news.nationalpost.com/2012/03/23/pierre-poutine-recorded-robocall-on-that-appeared-to-befrom-liberal-elections-canada/.

Burke campaign office during this brief period is no larger, since these calls did not
include source information leading back to the campaign.
Sona's press release participates in the same discourse of Conservative
victimhood that we observed in Andrew Prescott's tweets. But it also provides, much
more clearly than those messages, evidence of inside knowledge of the vote-suppression
campaign. The only question must be: Whose knowledge? Did Sona write this press
release out of his own knowledge of what was happening while he drafted it, or was he
prompted to write it by one or more of his colleagues who told him that votesuppression calls were being reported to the campaign office? Was he, in short, a coconspirator or a patsy?
As Michael Harris writes, an unexpected consequence of Sona's press release
being picked up by the media was that Sona received
a furious call from Conservative Party headquartersasking him
what the hell was going on in Guelph. I started to explain the
calls that had been going out misdirecting people, but that wasn't
what they were mad about. They wanted to know why I had
issued the press release. They ordered me to make no further
comments that day. That's the way it was, very rough, tons of
stress. HQ wanted to control everythingevery event, every
debateeven our website, which they took over.337
Michael Sona seems not to have understood the reason for the anger of the people at
headquarters. Like Andrew Prescott two days previously, he had acted as quickly as
possible to give a defensive spin to the news of the vote-suppression calls. But that very
speed of reaction could not avoid arousing suspicions of the Conservatives' own
involvement. As the more experienced operatives at Conservative Party headquarters
know well, there is a difference between owning a story and being owned by it.

(iii) The mystery of 'Pierre Poutine'

Shortly after 10:00 a.m. on May 2, 2011, nearly 8,000 people in Guelph received
the following automated telephone message (or some close variant of it), spoken in a
337

Harris, Michael Sona in exile.

woman's voice:
This is an automated message from Elections Canada. Due to a
projected increase in poll turnout your voting 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 1-800434-4456. We apologize for any inconvenience this may cause.338
This plausible-sounding message was then repeated in French. Its content was of course
entirely fraudulent: it did not come from Elections Canada (which does not contact
voters by telephone), no polling station locations had been changed in the riding of
Guelph,339 and there was no hotline at the number given.
Surprisingly, perhaps, there was indeed a polling station at the Old Quebec
Street mall, but the voters assigned to it by Elections Canada were people living within
walking distance of it in central Guelph; the recipients of this call lived much further
away. Some people were not fooled by it, and either ignored the call or else phoned in
complaints to Elections Canada, the police, or Frank Valeriote's campaign office. But
others were deceived: an unknown number were dissuaded by the distance from voting
at all, and another one hundred and fifty to two hundred voters went trustingly to the
Old Quebec Street mall, where they found themselves seriously inconvenienced. As
Judge Richard Mosley wrote in his useful summary of the court documents filed by
Elections Canada investigator Allan Mathews, among these people
were elderly or disabled voters and others with children in
strollers. Some of the misdirected voters tore up their voter
identification cards when they found that they could not vote
there. Others, who were determined to vote, had difficulty getting
to their correct polls in time.340
The immediate source of the fraudulent calls was RackNine, an Edmonton
338
339

340

Maher and McGregor, Firm with Tory links traced to election day 'robocalls'.
Marc Mayrand, Preventing Deceptive Communications with Electors: Recommendations from the Chief Electoral
Officer of Canada Following the 41st General Election (Ottawa: Elections Canada, 2013),
http://www.elections.ca/res/rep/off/comm/comm_e.pdf, p. 9.
The Honourable Mr. Justice Mosley, 2013 FC 525: Sandra McEwing and Bill Kerr vs. Attorney
General of Canada et al. [...]: Reasons for Judgment and Judgment (Federal Court: Ottawa, Ontario,
23 May 2013), para. 167, p. 61. \

voice-broadcasting company which had made an exclusivity contract with the

Conservative Party, promising not to take work from any other political party during the
2011 election. RackNine transmitted the calls using Voice over Internet Protocol (VoIP)
technology, which apparently makes it possible to program into the call any calling
number the client chooses to have appear on the call display of recipients' telephones. (It
seems that the default number that would appear on recipients' call display would be
that of the telephone from which the message was uploaded onto RackNine's servers.)
As Glen McGregor and Stephen Maher have noted, RackNine's service allows anyone
with an account to record an outgoing message, upload a phone number list, and send
out the calls using the comoany's VoIP system.341 There is thus no reason for RackNine
personnel to be aware of the content of messages the company sends out.
The person who uploaded the fraudulent message intended for non-supporters of
the Conservative Partylet's assume it was a maletook elaborate precautions to keep
his identity a secret.
This person, RackNine customer number 93, was known to RackNine owner
Matt Meier as Pierre Jones, a student at the University of Ottawa with the home address
of 54 Lajoie Nord in Joliette, Qubec, a town northeast of Montral. But there is no
record of a student of that name at the University of Ottawa, and there is no number 54
on rue Lajoie Nord in Joliette.342
Virgin Mobile disposable cellphone registered to Pierre Poutine, of Separatist
Street, in Joliette, Que. activated April 30, and called only two numbers other than its
own voice mail. --both of those numbers belong to RackNine.

By August 2012, the Elections Canada investigation had produced more directly
incriminating evidence relating to the vote-suppression robocalls in Guelph. The person
responsible for these fraudulent robocalls covered his tracks carefully, using a
disposable (or burner) Virgin Mobile cellphone, purchased using a temporary (and
341

342

Glen McGregor and Stephen Maher, Meet 'Pierre Poutine': The robocalls scandal's prime suspect,
National Post (28 February 2012, updated 29 February 2012),
http://news.nationalpost.com/2012/02/28/documents-link-burner-cellphone-tory-candidate-withrobocall-company-racknine/.
Glen McGregor and Stephen Maher, Newly revealed 'Pierre Poutine' robocall appeared to be from
Liberal: Elections Canada, National Post (23 March 2012),
http://news.nationalpost.com/2012/03/23/pierre-poutine-recorded-robocall-on-that-appeared-to-befrom-liberal-elections-canada/.

untraceable) credit card, to upload his fraudulent robocall messages onto the servers of
RackNine, where he had opened an account under a plausible-sounding (but of course
still false) name and address.343 His one apparent mistake allowed RackNine to provide
the Elections Canada investigators with an Internet Protocol (IP) address which he had
used, and which they discovered belonged to a Rogers subscriber in a community
southwest of Guelph. But this led them to an open Wi-Fi connection in a house shared
by five people, none of whom appeared to have any link to the campaign of Guelph
Conservative candidate Marty Burke, any involvement in the election process, or any
awareness that their unsecured Wi-Fi connection had been misused by Pierre Poutine.
In Allan Mathews' own words, he and Ronald Lamothe thus came up blank in their
interviews with the people to whom the IP address used by Poutine had led them.344
But the same Ottawa Citizen report which announced this discouraging news also
offered, by way of reminder, a summary of other sensational information relating to that
IP address, that had first been reported in May 2012:
1. Other records obtained by Elections Canada show that five members of Marty
Burke's Conservative campaigncampaign manager Ken Morgan, deputy campaign
manager Andrew Prescott, and three volunteersused that same IP address in the final
weeks of the campaign to access CIMS, the Conservative Party's central database of
voter information.345
2. Their use of that IP address to access CIMS was obviously surreptitious. Unless the
residents of the house with the unprotected Wi-Fi lied to the Elections Canada
investigators, these Conservative operatives were using the IP address without the
subscriber's knowledge; and since the Marty Burke headquarters was northeast of
downtown Guelph, and the house with the open Wi-Fi was in an unnamed community
southwest of Guelph, they must have had to make a round trip of six or eight
kilometers or more every time they wanted to engage in what they no doubt thought was
untraceable activity. The Elections Canada investigators believe that at least one of the
Conservatives lied to them about this: they list Christopher Crawford, a campaign
volunteer, as having logged onto CIMS from the Rogers IPeven though Crawford
343
344

345

Glen McGregor and Stephen Maher, Trail of Pierre Poutine runs into an open Wi-Fi connection,
Ottawa Citizen (10 August 2012),
http://www.ottawacitizen.com/life/Trail+Pierre+Poutine+runs+into+open+connection/7073441/story.h
tml.
Ibid.

had told them, [t]hrough the Conservative Party's lawyer, Arthur Hamilton, [] that he
had always accessed CIMS from the Burke campaign office.346
3. Deputy campaign manager Andrew Prescott had an account with RackNine, as
Client 45, which he used to send out legitimate robocalls about campaign events.
However, he also had close connections to Pierre Poutine, known to RackNine as
Client 93: records produced by RackNine show that Prescott and Poutine accessed
the company's servers from the same IP address, sometimes within a few minutes.
Moreover, Both their accounts also used the same proxy serveran Internet service
that can disguise IP addressesbased in Saskatchewan.347
The meaning of this should be obvious. The first thing we can say about this
body of evidence is that Pierre Poutine was very closely connected to deputy
campaign manager Andrew Prescott: they were either the same person operating under
different identities, or else two people who knew each other well.
The second is that Elections Canada's discovery that the IP address used by
Pierre Poutine was an open, unsecured Rogers Wi-Fi system whose subscriber had no
discernible connection either to the Conservative Party or to electoral politics in general
was not a check or a disappointment in the investigation: it was, on the contrary, a major
break-through.
Five members of the Marty Burke Conservative campaign in Guelph, including
the campaign manager and his deputy, had made use of this open Wi-Fi to access CIMS
during the last weeks of the election campaign. Given the apparent inconvenience of
this process, coupled with the fact that one of the five, speaking through Conservative
Party lawyer Arthur Hamilton, had claimed he only ever accessed CIMS in the Burke
campaign office, it seems clear that these link-ups to CIMS were deliberately
surreptitious. What motive could these Conservative operatives have had for keeping it
secret?
As we saw in Chapter 2 above, Guelph voters were subjected to mid-campaign
harassment calls.348 In March 2012 it was revealed that Pierre Poutine, in addition to
uploading to RackNine's servers the fraudulent polling-change message that went out on
May 2, 2011 to Guelph voters identified in the CIMS database as opposition supporters,
had also recorded and uploaded to RackNine another message that was never sent out.
346
347
348

Ibid.
Ibid.
See note 17 above.

According to Elections Canada investigator Al Mathews, this message had the

appearance of being in support of the Frank Valeriote (Liberal Party) campaign in
Guelph. The voice sounded to me as though computer generated rather than a script read
by a person.349
What the National Post reporters describe as a strange call was clearly
prepared as part of the harassment campaign in Guelph: the intention was no doubt for
Liberal supporters to be awakened during the night by a purportedly pro-Valeriote
message spoken by an irritatingly inhuman voice. The message may have been held
back because someone among the Guelph Conservatives realized that voters might
recognize it as the work of opponents rather than supporters of Valeriote; or it might
have have gone unused because, in the final days of the election campaign, the
fraudsters' emphasis was shifting from harassment to misdirection. But in this fragment
of information, together with the fact that members of the Marty Burke campaign were
having repeated surreptitious recourse to the CIMS database during the final weeks of
the election campaign, we have unmistakable indications that local Conservatives were
involved in the harassment phone calls.
In the absence of charges laid against any other participants in the Guelph
Conservative campaign, there is reason to suspect that Elections Canada's investigation
may have been deflected from its purpose.
In 2011 one of Sona's colleaguesa person who, unlike him, had access to
CIMSremembered, for the benefit of Elections Canada investigator Allan Mathews, a
conversation he claimed to have overheard in which Sona talked about American
robocall techniques such as calling non-supporters late at night, pretending to be
liberals, or calling electors to tell them their poll location had changed. 350 And when the
telephone fraud issue was brought to renewed prominence on February 23, 2012 by the
349

350

Glen McGregor and Stephen Maher, Newly revealed 'Pierre Poutine' robocall appeared to be from
Liberal: Elections Canada, National Post (23 March 2012),
http://www.news.nationalpost.com/2012/03/23/pierre-poutine-recorded-robocall-on-that-appeared-tobe-from-liberal-elections-canada/. McGregor and Maher give no precise indication as to when this
message, obviously intended as part of the harassment campaign, was uploaded to RackNine. They
say, ambiguously, that it was uploaded to RackNine along with the misdirecting fake Elections
Canada call, but never sent out: this could be taken to imply that both were uploaded at the same
time; it could also mean simply that both messages were uploaded.
Stephen Maher and Glen McGregor, Public robocalls documents don't tell the full story against
Michael Sona: expert, Vancouver Sun (4 April 2013),
http://www.vancouversun.com/news/Public+robocalls+documents+tell+full+story+case+against/8194
609/story.html.

first of a stream of articles from Postmedia journalists Glen McGregor and Stephen
Maher giving details of the Elections Canada investigation, the Conservative Party acted
with remarkable speed and efficiency, laying the foundation, in NDP MP Pat Martin's
mixed metaphors, for throwing some kid under the bus to conceal a massive
conspiracy to defraud the electoral system.351
The Conservative Party's national campaign manager Jenny Byrne released a
statement on February 23 suggesting, as Althia Raj commented in the Huffington Post,
that a rogue campaign staffer might be to blame. Byrne declared that
The party was not involved with these calls and if anyone on a
local campaign was involved they will not play a role in a future
campaign. Voter suppression is extremely serious and if anything
improper occurred those responsible should be prosecuted to the
full extent of the law.352
In a Sun TV broadcast that went out around noon on the same day, Sun journalist Brian
Lilley, with prompting from Conservative Party headquarters, identified Sona as the
sole perpetrator:
The Conservatives have someone identified already who they
think this could be. [....] His name is Michael Sona. [....] [I]t
appears it is this one individual [...]. Sources say that it does look
like it was Michael Sona who was behind this [...].353
Sona promptly resigned (or was fired) from his position on the staff of a
Conservative MP, and three days later Defence Minister Peter MacKay declared that
there was no need for his partyor, by implication, anyone elseto look any further
into the robocalls issue:
Well I think they've identified the individual that was involved in
thisand this was certainly not something that our party
condones. It's behaviour that is inappropriate, to say the least, and
351

352
353

Althia Raj, Michael Sona Fired: Conservative Staffer With Ties To Guelph Riding Let Go,
Huffington Post Canada (24 February 2012), http://www.huffingtonpost.ca/2012/02/24/michael-sonafired-guelph-eve-adams_n_1299791.html.
Ibid.
See Michael Sona Vs. Brian Lilley: The Tale of the Tape, BigCityLib Strikes Back (2 November
2012), http://www.bigcitylib.blogspot.ca/2012/11/michael-sona-vs-brian-lilley-tale-of.html; Glen
McGregor, Michael Sona's response squelched on Sun blog, Ottawa Citizen (2 November 2012),
http://www.blogs.ottawacitizen.com/2012/11/02/michael-sonas-response-squelched-on-sun-blog/; and
Robocon: Michael Sona and Sun News Network, Creekside (25 February 2013),
http://www.creekside1.blogspot.ca/2013/02/robocon-michael-sona-and-sun-news.html.

that individual is no longer in the employment of the party.354

(Note MacKay's casual use of the third-person they, as though to suggest that some
authoritative independent agencySherlock Holmes and Dr. Watson, or perhaps even
the policehad been responsible for fingering Sona, rather than an unholy closedcircuit alliance of the Conservative Party and Sun Media.)
In early April 2013, Conservative Party headquarters reacted with satisfaction to
the news that Sona had been charged: In 2011, we reached out to Elections Canada
when we heard of wrongdoing in Guelph and did all we could to assist them, said a
statement released by spokesman Fred DeLorey. We are pleased that Elections
Canada's work has progressed to this point. DeLorey added that his party ran a clean
and ethical campaign and does not tolerate such activity. 355 Michael Harris provides
some context to what he calls this bizarre gloating of Conservative Party headquarters
by observing that several Guelph Conservatives, including 2011 candidate Marty Burke
and his wife, have resigned from the Conservative riding association in protest over
Sona's treatment.356
On the basis of the publicly available evidence, it is hard to see how Michael
Sona could have been more than peripherally involved in the telephone harassment and
vote suppression campaigns in Guelph: as we will see in Chapter 6, there are at least
five members of the local Conservative campaign (not to mention, for the moment, the
Conservative Party's central office) whose names should stand ahead of his in any list of
'persons of interest.'
It would no doubt be convenient to those who organized the fraud to have the
courts and the Canadian public accept the view that any fraudulent calls which could not
be safely ascribed to cranks or pranksters, or relegated to the category of innocuous
error, could be blamed on a single rogue operative, a junior (and therefore dispensable)
member of the party. But attempts to explain complex and large-scale violations of
ethics and legality by what amounts to a perverse-Lone-Ranger theory of political
criminality are hard to take seriously.357
354

355

356

357

Robocalls inappropriate, says Peter MacKay, CBC News (27 February 2012), http://www.cbcca/news/canada/nova-scotia/story/2012/02/27/ns-robocalls-defence-minister.html; Robocon: Michael
Sona and Sun News Network, Creekside.
Bruce Cheadle, Tory worker faces robocall charge, Winnipeg Free Press (3 April 2013),
http://www.winnipegfreepress.com/canada/tory-worker-faces-robocall-charge-201191151.html.
Michael Harris, Michael Sona in exile, iPolitics (23 June 2013),
http://www.ipolitics.ca/2013/06/23/michael-sona-in-exile/.
Such attempts should perhaps be met with a reminder of the epithet applied to the masked vigilante's

Chapter 7. Estimating the impact of fraud: Converging lines

of analysis

Fred DeLorey on the power of robocalls (while complaining about the reproductive
rights robocall in Guelph for which Valeriote was fined by the CRTC):
Conservative Party spokesman Fred DeLorey questioned
whether the calls swayed the election results in Guelph. Valeriote
defeated runner-up Burke by more than 6,000 votes.
One can't help but wonder, without these misleading phone
calls to voters, would the election outcome in Guelph [have] been
different? DeLorey said in a statement.
The Liberal Party has some explaining to doHow many
other Liberal campaigns broke Canadian telecommunication
rules? How many used robocalls to mislead Canadian voters?358
: evidence of a kind that is no less occult to a layman's eye than survey evidence
has long been accepted in courts as grounding the testimony of sworn experts. (This is
the case with analyses of voice recordings, handwriting, fingerprints, bloodstains, and
other DNA samples.) I will argue that the ruling is also questionable on grounds of law
(in terms of Judge Mosley discusses, but does not apply, a magic number calculation
of the kind accepted by the Supreme Court of Canada in the Opitz case), and on grounds
of logic (Judge Mosley's desire for direct confirmation by individual voters of the
survey results is vulnerable to what I will call, in honour of its inventor in the eighteenth
chapter of Genesis, an Abrahamic reduction).
Given the degree to which the telephone fraud varied in intensity from riding to
riding, and the very incomplete and fragmentary state of our information, any estimates
as to the degree to which it altered the outcome of the election must be correspondingly
tentative.

358

aboriginal sidekick-and-admirer in the 1950s television program. Tonto is indeed not a name but an
epithet (and perhaps, in the original context, a racial slur as well). It comes, not from any First Nations
language, but from Spanish, and means stupid.
Steve Rennie, Liberal Robocall Fine: CRTC Punishes Grits For Not Identifying Source Of Guelph
Message, Huffington Post (24 August 2012), http://www.huffingtonpost.ca/2012/08/24/liberalrobocall-fine-guelph-crtc_n_1827915.html.

As I indicated in Chapter 2, the effects of the mid-campaign harassment calls

cannot be quantified, because the Liberal decline in the polls that coincided with it was
arguably produced by other causal factors as well. However, things are different in the
case of the end-of-campaign vote-suppression calls. In this chapter I want to suggest
that to a perhaps surprising degree we can arrive at an assessment of the probable effects
of these calls. Two converging lines of comparative analysis were opened up more than
a year agothe first developed in a polling-station level study published by Anke
Kessler, Professor of Economics at Simon Fraser University, in March 2012, and
released in revised form on April 20, 2012; the second in a survey-based study
published by Ekos Research Associates, Inc. on April 23, 2012.
But before entering a discussion of these two studies, I would like to draw
attention to an interesting anomaly in the polling data from the 2011 general election.

(i) An anomaly: the Conservative Party's election-day 'bounce'

One of the ways in which election analysts have sought to enhance the predictive
value of political opinion polling is by combining the results arrived at by different
polling companies into a conflated figure, whose movements over time (assuming
polling work of more or less equal professionalism and integrity) could be expected to
provide a more accurate indication of trends in voter preferences than the sequence of
results produced by any single polling company. Analysts commonly combine the
figures of five leading pollsters into what is known as a five-poll moving average.
The Simon Fraser University Elections site posts five-poll moving average
figures for the 2011 general election which show Conservative, NDP, and Liberal
support on May 1, 2011 (the day before the election) at about 35.5 percent, 32 percent,
and just below 20 percent respectively.359 Another possibly more reliable combination of
election period opinion polls, available elsewhere, which weighted the different polls
according to their confidence intervals (and hence, indirectly, the sizes of the samples
on which they were based), found that on May 1 the Conservatives, NDP, and Liberals
had the support, respectively, of about 36.5 percent, 32 percent, and 19 percent of the
359

Election PollsCampaign 2011, Elections, http://www.sfu.ca/~aheard/elections/polls-scatter-plot2011.html.

electorate.360
The anomaly resides in the fact that on May 2, 2011, the Liberal Party received
18.9 percent of the votes cast, the NDP 30.6 percentand the Conservative Party fully
39.6 percent. The May 2 result for the Liberals is somewhat below what the five-poll
moving average and the weighted combination of polls would have led one to expect (1
percent below the former, and a mere 0.1 percent below the latter). The NDP result is
1.4 percent below what one would have anticipated on the basis of both combinations of
polling dataa significant difference, since the actual May 2 result of 30.6 percent of
the votes cast stands well outside the 95 percent confidence interval on the weightedaverage graph for the preceding day. But the Conservative share of the vote, 39.6
percent, goes far beyond expectations.
This result4.1 percent above the five-poll moving average figure for May 1,
and 3.1 percent above the higher estimate of Conservative support produced by the
weighted averages of polling datatells us one of two things. Either the leading polling
companies had to a humbling degree failed to register a quite convulsive increase in
Conservative support at the very end of the election campaign, or else late-campaign
factors were in play that were somehow beyond the capacity of opinion polls to detect.
In Oscar Wilde's play The Importance of Being Earnest, the formidable Lady
Bracknell attempts to deflect the two pairs of young lovers from their course by
declaring sternly that the number of engagements being announced around her seems
to me considerably above the proper average that statistics have laid down for our
guidance.361 It is not necessary to share Lady Bracknell's prescriptive faith in the
science of statisticsor its offshoot, opinion pollingin order to feel that there is
something in the divergence between opinion polls and the vote tally in our 2011
election that calls for explanation.
For even after one has repeated the normal caveats about the limitations of
opinion pollingamong them the fact that different polling companies adopt different
methodologies, handling undecided voters and formulating key questions about voting
intentions in a variety of ways, and the fact that reliability within a stated margin of
error nineteen times out of twenty includes allowance for that anomalous twentieth time
so large a difference between the actual outcome and the combined and weighted
360
361

File: 2011FederalElectionPolls.png.
The Importance of Being Earnest, Third Act, in The Works of Oscar Wilde (London: Collins, c. 1920,
3 volumes bound as one), Vol. 2: Plays, p. 339.

polling results of the leading Canadian polling companies remains remarkable.

Were there then late-campaign factors, undetectable by opinion polls, that could
explain this difference?
One such factor might have been a last-minute recoil from the NDP on the part
of some traditionally Liberal voters. The surge in NDP support during the final weeks of
the election campaign was largely due to a migration of formerly Liberal-leaning voters
and Bloc Qubcois supporters. As the NDP moved above 30 percent in the opinion
polls, and began in the final days of the campaign to approach a level at which an NDP
minority government was no longer a mere pipe-dream but an actual possibility, some
of the more right-wing former Liberals who had indicated support for the NDP may at
the last minute have reconsidered their position and voted for the Harper Conservatives.
Although I am not aware of any evidence that supports this speculation, it seems a
reasonable hypothesis that might account for some part of what appears to be a lastminute jump in Conservative support.
Another factor that is not in the least hypothetical was also in play: the impact
of a very large number of fraudulent phone calls, made for the most part on election day
itself, aimed at suppressing the turnout of opposition-party supporters.
It is important to understand that if a factor of this kind had been the only one in
play, a noticeable increase in the percentage of the electorate's support for the
Conservative Party need not reflect any actual increase in the number of voters
supporting the Conservativesfor a sudden decrease, due to vote-suppression tactics, in
the number of opposition-party supporters who actually cast votes for those parties
would produce the same change in percentage figures: the Conservative Party would
garner a higher percentage share of the votes cast, and the opposition parties a
correspondingly lower share. In other words, an upward bounce in the Conservative
share of the vote, accompanied by a decline in the vote shares of the other parties, is
exactly what such a program of vote suppression would lead one to expect.
The five-poll moving average figures (which take no account of supporters of
the Green Party and Bloc Qubcois) show the NDP and Liberal share of the vote
declining by about 2.4 percent, and the Conservative share rising by 4.1 percent; the
weighted average figures (which likewise exclude Green Party and Bloc supporters)
show the NDP and Liberal share declining by about 1.5 percent, and the Conservative
share rising by 3.1 percent.

In the absence of much fuller information than we now possess about the scale
of the telephone fraud and about the efficacy of this kind of fraud in an electorate that
has not previously been exposed to it, one can only guess as to how much of the
Conservatives' election-day bounce might be attributable to the fraud. In Chapter 3 I
adopted an estimate, based on the work of Ekos Research, that some 2.3 percent of
Canadian voters received end-of-campaign vote-suppression calls. If as many as onethird of those calls succeeded in their purpose, they would have produced a
Conservative bounce amounting to three-quarters of one percent.
We know from the 2008 campaign of Conservative Gary Lunn in Saanich-Gulf
Islands (discussed in Chapter 4) that deceptive vote-suppression robocalls can have an
important impact in a riding whose voters have no previous experience of this kind of
fraud. According to two sources, one of them a report in the Globe and Mail, a poll
taken days before the election showed that one percent or less of voters intended to cast
a ballot for the NDP (whose candidate had withdrawn)while after the fraudulent
robocalls, which pretended to come from the President of the NDP riding association,
fully 5.69 percent of the votes cast in Saanich-Gulf Islands were for the NDP.
But while a nearly 4.7 percent vote suppression effect provides striking evidence
of the potential power of robocall fraud, we also know that the intensity of the
Conservatives' telephone-fraud vote-suppression campaign varied widely in the 234 of
Canada's 308 federal ridings in which fraudulent calls were reported. The impact in
many of those 234 ridings was probably negligible.
Moreover, we know from the example of Guelph, discussed in Chapter 7, that
the success or failure of a telephone-fraud campaign is heavily context-dependent. The
vote-suppression fraud caused widespread confusion in that riding on election day, but
thanks in part to the deficiencies of the Conservative campaign in that riding, Liberal
Frank Valeriote retained his seat with a substantially increased lead. One can only only
speculate as to how many more votes the Liberals, NDP, and Green Party would have
received in Guelph in the absence of an intense robocall vote-suppression campaign.
But as we will see below, there are other ridings in which the vote-suppression
calls reduced opposition-party turnout in a significant and measurable manner. It must
be remembered, as well, that the primary goal of the telephone fraud does not seem to
have been to increase the Conservative Party's share of the nationwide vote by some
particular amount: it was to win particular ridings, and thereby help lift the party into a

parliamentary majority.
It seems to me indisputable that some part of the Conservatives' election-day
bounce can be ascribed to the effects of telephone fraud. But any upward movement in
the percentage of electoral support is less important than the number of additional seats
arguably won by the Conservatives because of the fraud. That, in turn, is less significant
than the fact that a nationally-organized campaign of electoral fraud happened at all.

(ii) Kessler and Cornwall on demobilization through misinformation

On April 20, 2012, Simon Fraser University economics professor Anke Kessler,
together with SFU Ph.D. student Tom Cornwall, published a revised version of their
study Does misinformation demobilize the electorate? Measuring the impact of alleged
robocalls in the 2011 Canadian election.362
Kessler and Cornwall set out to answer two questions: first, whether in fact the
ridings that were affected by the 'robocalls' had significantly lower turnoutoverall or
by party affiliationsthan those ridings that were not affected; and secondly, if the
answer is affirmative, what the number of total voters per riding that were
discouraged from going to the polls may have been. Their goal, in short, was to
estimate the effectiveness of the misinformation strategy.363
The affected ridings they studied were the 27 that by late February 2012 had
been identified in the first wave of allegations about the fraud as having been
robocalled, and that had appeared on a list of ridings under investigation by
Elections Canada that was reported to have been leaked by one of their employees. 364
(Because their research strategy involved using the 2008 election results for purposes of
comparison, two of these ridings were dropped: Portneuf-Jacques Cartier, where no
Conservative ran in 2008, and Saanich-Gulf Islands, where robocalling was already

362

363
364

Anke S. Kessler and Tom Cornwall, Does misinformation demobilize the electorate? Measuring the
impact of alleged robocalls in the 2011 Canadian election (Simon Fraser University Department of
Economics, 20 April 2012), http://www.sfu.ca/~akessler/wp/robocalls.pdf.
Ibid., p. 2.
I am quoting here from an essay in which the researchers describe their project and its results: Anke
Kessler and Tom Cornwall, Misinformation and elections: Insights from Canada, Vox: Researchbased policy analysis and commentary from leading economists (6 June 2012),
http://www.voxeu.org/article/misinformation-and-elections-insights-canada.

reported in 2008.)365
Kessler and Cornwall indicate both the difficulties they faced and the constraints
that need to be recognized in interpreting their results. The most important difficulty is
that
since we can only rely on self-reported incidences of misleading
or harassing calls, which are made available through the Canadian
media [...], the data might be subject to a considerable amount of
measurement error as the actual occurrence of misconduct is
obviously not observed. That is, we can only estimate the effect of
(the average level of) robocalling in a riding, conditional on the
calls being reported, relative to the effect of (the average level of)
robocalling in districts where the calls, if any, have not been
reported....366
The principal interpretive constraint is that their findings
only apply to the artificial construct of an average riding, i.e.,
the interpretation of the results necessitates an electoral district
with average characteristics (voter turnout, margin of victory, etc.)
which does not actually exist. For this reason, we wish to
emphasize that the analysis and the corresponding results are not
suited to bringing the outcome in a particular riding into
question.367
Their work was complicated by the likelihood of selection biasthat is to say,
by the fact that the ridings listed in the earliest (and arguably therefore most reliable) list
of robocall ridings do not necessarily constitute a random (representative) sample.
It is plausible that anyone who deliberately sought to suppress the vote would have
targeted ridings where the race was expected to be closeand in fact the average
margin of victory in ridings with no robocall allegations was 22.8 percentage points,
365

366
367

Kessler and Cornwall, Does misinformation demobilize the electorate?, p. 9. The reason for dropping
Saanich-Gulf Islands appears to be that a recent experiment-based study they cite shows that preelection warning against possible fraudulent messages innoculates voters against misinformation
effects, and generally restores voter turnout (p. 21, see also p. 4). In Saanich-Gulf Islands (as I
discovered myself during several days spent there in 2010) there was quite widespread awareness of
and resentment over the Lunn campaign's 2008 robocall fraud. Lunn was defeated in the 2011 election
by Green Party leader Elizabeth May.
Ibid., p. 3.
Ibid., p. 3.

almost 28 percent higher than the average margin of victory in robocall ridings, which
was 16.3 percentage points.368 As Kessler and Cornwall also observe, there is ample
evidence in the economic and political science literature that some form of 'closeness' in
the election, usually measured by the (percentage) vote gap between the first and second
candidate in the race, has a significant and positive impact on voter turnout.369
They remark that [o]ne natural way to address the selection bias in this context
would be to measure the impact of the robocall campaign by compar[ing] the change in
voter turnout from the 2008 to the 2011 election in the affected ridings [...] with the
change in voter turnout in the unaffected ridings (the control group), while perhaps
controlling for such co-variate factors as margins of victory and changes in population
demographics. This kind of difference-in-differences approach, as Kessler and
Cornwall call it, use[s] pre-treatment differences in outcomes between treatment and
control group to control for pre-existing differences between groups, [...] measur[ing]
the impact of a treatment by the differences between the treated group and the control
group in the before-after differences in outcomes.370
Kessler and Cornwall decided that more accurate results could be obtained by
using a slightly different strategy:
instead of using between-ridings variation to identify the effect of
alleged misconduct, we use within riding variation, taking
advantage of the fact that Elections Canada breaks the results
down at the level of the polling station for each riding.371
This is likewise, as they explain, a difference-in-differences approach, where we
compare the relative outcomes at polling stations within a district [i.e., riding] from the
2008 and the 2011 election (the first difference) across districts that reported receiving
robocalls and those that did not (the second difference).372
As Kessler and Cornwall indicate in their abstract, they found that
those polling stations with predominantly non-conservative voters
experienced a decline in voter turnout from 2008 to 2011, and that
this effect was larger in ridings that were allegedly targeted by the
368
369
370
371

372

Ibid., p. 6.
Ibid., pp. 6-7.
Ibid., p. 7.
Ibid., pp. 7-8. As they write in Misinformation and elections, This allows us to control for districtlevel changes such [as] changes in candidate quality, district level time trends, local TV ad buys, etc.
Ibid., p. 9.

fraudulent phone calls. The results thus indicate a statistically

significant effect of the alleged demobilization efforts: in those
ridings where allegations of robocalls emerged, turnout was an
estimated 3 percentage points lower on average.373
A 3-percent reduction in voter turnout across 25 ridings is an effect large enough to have
altered the outcomes in a number of these ridings. That percentage reduction can also be
understood in other terms:
Using the fact that the average targeted riding had 83,268
registered voters, this translates into an estimated absolute number
of roughly 2,500 fewer voters showing up at the polls. This is
substantial. Of those ridings on our list allegedly affected by
robocalls, a total of 6 had winning margins smaller than that. The
lower bound of the 95% confidence interval is 1,032 voters that
did not vote in robocall ridings on election day, an amount which
is still larger than the winning margin in three ridings (two of
which were won by a Conservative candidate).374
How secure are these results? Stephen Gordon, a professor of economics at
Universit Laval who praises Kessler's and Cornwall's paper as offering an important
insight into the robocall scandal, notes that Section 4 of the paper is devoted to
robustness checks.375 He means, in layman's language, that this part of the paper
(which, interestingly, is twice as long as any of the other sections) is concerned with
enunciating, analyzing and testing a series of possible objections to the paper's
methodology and analytical procedures.

Ekos Report
(It was clever to launch the harassment campaign at the same time as the two televised
leaders' debates....) The misdirection fraud, on the other hand, permits some tentative
373
374
375

Ibid., Abstract.
Ibid., p. 12.
Stephen Gordon, Anke Kessler on the effects of robocalls on voter turnout, Worthwhile Canadian
Initiative: A mainly Canadian economics blog (12 March 2012),
http://www.worthwhile.typepad.com/worthwhile_canadian_initi/2012/03/robocalls.html.

quantification. Research by the polling company EKOS suggested that vote-suppression

fraud gave the Conservatives a more than 1 percent lift in ridings where it was
deployed. (Calculations of the kind carried out by Judge Mosley, using the EKOS data,
on pp. 78-79 of his recent federal court decision showed vote-suppression impacts of
2% [Saskatoon-Rosetown-Biggar], 1.64% [Elmwood-Transcona], 1.8% [NipissingTemiskaming], and 1.7% [Yukon]. If the suppressed votes in these ridings had gone to
the other candidates in proportion to what they received in the official tally, the first two
of these ridings would have been won by the NDP, and the other two by the Liberals.)
Another study by University of Victoria economist Anke Kessler has suggested effects
on a similar scale. The Conservative deployment of fraudulent robocalls in the SaanichGulf Islands riding in the 2008 election gives a third measure of the potential impact of
robocall fraud on an uninitiated electorate: if a pre-fraud poll in the riding was accurate,
it resulted in the voiding (or effective suppression) of 4.7 percent of the votes cast.
We have encountered indications both of the scale of the misinformation campaign (an
Ipsos Reid poll indicated that 4 percent of voting-age Canadians claimed to have
received a misinformation call) and of the potential impact of robocall misinformation
(in the 2008 election in Saanich-Gulf Islands, an increase in the percentage of the vote
thrown away on a withdrawn candidate from the 1 percent predicted by a pre-election
poll to 5.69 percent).

Depending on ones angle of vision, the Conservative majority may seem either quite
comfortable or razor-thin. For while the Harper Conservatives have a parliamentary
majority of eleven seats, their aggregate lead in fourteen of the seats that the party
currently holds is a total of just 6,848 votes.376
--post Peneshue, their majority has shrunk to nine seats.

Chapter 9. Conclusion
376

See Canada Votes 2011Margin of Victory, Creekside (5 May 2011, updated 23 February 2012),
http://creekside1.blogspot.com/2011/05/canada-votes-2011-margin-of-victory.html.

Turning now to consider further evidence that the waves of telephone harassment and
misinformation that marked our last federal election were the work of Stephen Harper's
Conservative Party, we can begin by recapitulating and summing up the key points
established in the two preceding chapters.
It can be remarked, first, that various elements of the programs of telephone harassment
and misinformation point to a combination of national coordination with local input.
Though in at least one riding they began earlier, the main wave of harassment calls
began at the time of the leaders' debates; and while varying widely in detail, the calls
shared one common tactic, pretending in all cases to be productions of the party they
were designed to attack. Both facts strongly suggest central planning.
The vote-suppression calls are united by a similar commonality: the explanation given
for supposed changes of polling stations appears to have remained constant, whether the
messages were sent out in St. Johns, Ottawa, Toronto, Halton, Guelph, Kitchener,
Cambridge, Winnipeg, Edmonton, Prince George, or Victoria. As Frank Valeriote, the
Liberal MP for Guelph, proposed in the House of Commons in March 2012, the
common tactic of misdirecting voters to distant locations which were not in fact polling
stations may be another sign of national-level planning:
In Guelph, it was the Quebec Street Mall. In Kingston, voters were misdirected to St.
Joseph's Church. In Saanich-Gulf-Islands, it was St. John's United Church. In Sydney,
Cape Breton, a voter was misdirected to New Waterford, 30 kilometres away. Even the
member for Windsor-Tecumseh was misdirected to St. Anne's Church, said Valeriote
[]. This could not have been one lone Conservative rogue in Guelph. This required
collaboration and resources across Canada.377
The provision of plausible-sounding addresses for non-existent polling stations378 is at
the same time evidence of local input, which can also be seen in such details as the
377

378

Quoted by Bruce Campion-Smith, Allan Woods, and Tonda MacCharles, Robocalls: Elections Canada expands probe
into fraudulent messages in 2011 vote, Toronto Star (7 March 2012),
http://www.thestar.com/news/canada/2012/03/07/robocalls_elections_canada_expands_probe_into_fraudulent_messages
_in_2011_vote.html.
Greg Layson, Voters receive hoax calls, The Record.com (2 May 2011); Greg Mercer, Elections Canada
investigating hoax polling station calls, The Record.com (4 May 2011),
http://www.therecord.com/news/local/article/527138--elections-canada-investigating-hoax-polling-station-calls; Makin,
Messages provide false polling station info, The Globe and Mail.

splicing of Liberal candidate Bob Spellers voice into the automated harassment
messages sent out in Haldimand-Norfolk.379 As Jeffrey Simpson wrote in the Globe and
Mail, it seems clear that someone with an inordinately shrewd knowledge of individual
candidates from the opposition parties did the deed. Calls were of a particular nature,
depending on the riding, hinting at things related to an opposition party candidate. This
kind of information doesnt come from a telephone directory.380
A national political party is one kind of organization that would have the capacity to
target ridings across the country with messages of a standardized type, or containing
standardized statements. A national party would also, of course, have local operatives
who could assist central organizers by providing telling details aimed at making the
messages more effective.
By this point, we do not need to speculate as to which national party might have been
sufficiently ruthless and corrupt to organize fraud of this kind.

Rick Mercer on the statistically impossible frequency of train wrecks among

appointments made by Harper (Mike Duffy, Pamela Wallin, Patrick Brazeau, Nigel
Wright (chief of staff), Dean Del Mastro (parliamentary secretary, charged with
electoral fraud), Senator Carolyn Stewart Olsen:
Serious question: Has anyone checked the Prime Minister's Office for lead pipes
because it's like everyone close to that man has brain damage. Their moral compass has
been destroyed. I'm mostly worried that it could be contagious because if it's airborne,
we are in serious trouble.381

379
380

381

Seglins and Payton, Elections agency probes, CBC News.

Jeffrey Simpson, Wheres the intrepid Poirot in a case like robo-calls? Globe and Mail (3 March 2012),
http://www.theglobeandmail;.com/news/opinions/jeffrey-simpson/wheres-the-intrepid-poirot-in-a-case-like-robocalls/article2356788/.
Rick Mercer Blasts Harper's 'Train Wreck' Appointments (VIDEO), Huffington Post (16 October 2013),
http//www.huffingtonpost.ca/2013/10/16/rick-mercer-stephen-harper-appointments_n_4108006.html.

Continuing Conservative Party vote-suppression, this time on the provincial level in

Ontario.
The Ontario Progressive Conservatives have been sending out polling-station
misinformation by mail, rather than by telephone. In February 2014, in a byelection in
Niagara Falls, Conservative candidate Bart Maves sent out a chatty letter telling voters,
in a neighbourly way, that Our plan is to drive together to the Orchard Park School
(7555 Montrose) for the opening of the polls at 9 a.m., and concluding, I hope you
have a wonderful long weekend. However, Orchard Park School is actually at 3691
Dorchester Road, or 5.8 kilometres to the northeast. The Maves campaign explained to a
local Niagara radio station that an 'administrative error' caused the mistaken letters to be
sent out.382
What kind of administrative error might this have been? And is it not peculiar
that the same error was repeated in two ridings in the June 2014 provincial election?
In London North Centre, PC candidate Nancy Branscombe acknowledged that
similar letters sent out in this riding may have caused some confusion for residents of
64 households in the riding. I want to apologize for any [in]convenience. We are
contacting those households to clarify. This letter, dated June 6, 2014 and apparently
signed by Tim Glatten, a constituency assistant to the riding's Conservative federal MP,
reminds recipients to vote on election day, June 12:
This election my wife and I are planning on voting together
ensuring our voice will be heard [...]. Our plan is to drive together
to the Ridgeview Community Church at 1470 Glenora Dr for the
opening of the polls at 9 a.m. I know that some of our neighbours
are voting in the morning around the same time as we are, others
are going to the polling station at lunchtime, while many will cast
their ballot on the way home from work.383
As in the Niagara Falls letters from February 2014, this one expresses a hope that you
have a wonderful long weekendeven though in this case the election was not
382

383

Ontario election 2014: Liberals allege 'voter suppression' by PCs: Tory campaign apologizes for London, Ontario letters
that contain wrong poll locations, CBC News (10 June 2014, updated 11 June 2014),
http://www.cbc.ca/news/canada/toronto/ontario-votes-2014/ontario-election-2014-liberals-allege-voter-suppression-bypcs-1.2671281.
Ibid.

followed by a long weekendand suggests that maybe we will bump into each other at
Ridgeview Community Church! And as with the Niagara Falls letters, this one
misdirects recipients, whose correct polling station was in fact at an elementary school
about four kilometres in the opposite direction from the church location stated in the
letter.384
Very similar letters were sent out in the riding of Ottawa West-Nepean: Mariam
Hamou, a Liberal Party member, received one from a constituent named Saxon Harding,
who wrote to her neighbours that
I will be voting on my way home from work, but well before the
polls close at 9 p.m. I plan to just walk over to St. Paul High
School [...]. I hope that you have a wonderful summer, and maybe
we will bump into each other at St Pauls.
The correct polling station was at St. John the Apostle School, more than a kilometre
away.385 Contacted by CBC News, Ms. Harding said, 'Well, I let the party send that out,'
and then would not answer further questions.386
The Ontario PC Party apologized for these letters in much the same language as
that used by Nancy Branscombe in London: Today, we were made aware that letters to
voters in the campaign may have caused some confusion for a small number of residents
in the riding of Ottawa West Nepean. We apologize for any inconvenience and have
contacted these households to clarify.
Branscombe ascribed the London incident to a mix-up by volunteers in her
campaign who mistakenly stuffed letters for friends and supporters into the wrong
envelopes. PC leader Tim Hudak explained both incidents as a matter of error:
'Honest mistakes were made,' he said. 'Sometimes you don't have the right polling
information and our candidates have apologized for that clerical error. Hudak added
that the envelopes containing the letters stated they were 'authorized by the PC
Party.'387
But it appears that neither Branscombe nor Hudak was telling the truth. Both
sets of offending letters appear to have been postmarked in Toronto, rather than locally
384
385

386
387

Ibid.
NQW Votes 2014: Second Ottawa West-Nepean Voter Receives PC Vote Suppression Letter after Telling PC Campaign
She Would Not Vote Conservative, NorthumberlandView.ca (11 June 2014),
http://www.northumberlandview.ca/index.php?module=news&type=user&func=display&sid=29270.
Ontario election 2014: Liberals allege 'voter suppression' by PCs, CBC News.
Ibid.

(which makes Branscombe's explanation implausible); and none of the letters and
envelopes appear to have had any PC markings.388
There is evidence, moreover, that these polling-station-misdirection letters sent
out by the Conservatives were targeting the supporters of other parties. Ms. Birgitte
Zirger, a resident of Ottawa West-Nepean, was contacted by Randall Denley's PC
campaign in May and said she would not be supporting Denley's campaign:
I am disappointed to have received a letter directing us to the
wrong polling station after having told Randall Denley's campaign
that I would not be supporting him in this election. It makes me
wonder about the PC Party's ethics, said Zirger.389
On the day before the election, this appeared to have been a recurrent pattern: All of
the voters who have come forward so far said they aren't voting PC, raising troubling
questions about whether the Conservative mail campaign is targeting non-conservative
voters in an effort to keep them away from voting on Election Day.390

388

389

390

Ibid. See also NQW Votes 2014: FACT CHECK: Hudak Misleads, Again, About PC Voter Suppression Letters,
NorthumberlandView.ca (11 June 2014), http://www.northumberlandview.ca/index.php?
module=news&type=user&func=display&sid=29257.
NQW Votes 2014: Second Ottawa West-Nepean Voter Receives PC Vote Suppression Letter after Telling PC
Campaign She Would Not Vote Conservative, NorthumberlandView.ca.
Ibid.