Court File No. CV-14-513961

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE COUNCIL OF CANADIANS, THE CANADIAN FEDERATION OF STUDENTS, JESSICA McCORMICK, PEGGY WALSH CRAIG, and SANDRA McEWING

Applicants

-and-

HER MAJESTY IN RIGHT OF CANADA AS REPRESENTED BY THE ATTORNEY GENERAL OF CANADA

Respondents

APPLICANTS' APPLICATION RECORD- VOLUME 4

SACK GOLDBLATT MITCHELL LLP Barristers and Solicitors 20 Dundas Street West, Suite 1100 Toronto, ON MSG 2G8

Steven Shrybman (LSUC No. 20774B) tel: 613-858-6842 fax: 416-591-7333

Solicitors for the Applicants -2-

TO: THIS HONOURABLE COURT

ANDTO: ATTORNEY GENERAL OF CANADA Suite 3400, Exchange Tower 130 King Street West Box 36, First Canadian Place Toronto, ON MSX 1K6

Christine Mohr tel: 416-973-0942 fax: 416-973-3004

Solicitor for the Respondents INDEX TO APPLICATION RECORD

Tab Page

VOLUME 1

1. Amended Notice of Application ...... 1 - 27

2. Notice of Constitutional Question ...... 28- 66

3. Affidavit of Jessica McCormick swom November 26, 2014 ...... 67- 93

A Exhibit 1 Estimation of Voter Tumout by Age Group and Gender at the 2011 Federal Gender Election, April2012 ...... 94- 110

B Exhibit 2 National Youth Survey Report, September 20, 2011 ...... 111- 175

C Exhibit 3 Who Participates? A Clos er Look at the Results of the National Youth Survey, June 28, 2013 ...... 176- 206

D Exhibit 4 Generational Change: Loo king at Declining Voter Y outh Tumout over Time, November 30, 2013 ...... 207- 215

E Exhibit 5 CUSC 2013 First-Year University Student Survey, June 2013 ...... 216- 284

F Exhibit 6 CUSC 2012 Survey ofGraduating Undergraduate Students, June 2012 ...... 285- 386

VOLUME2

G Exhibit 7 Survey ofElectors Following the 41st General Election, October 2011 ...... 387- 477

H Exhibit 8 Report on the Evaluations on the 41st General Election of May 2, 2011 ...... 478- 534

I Exhibit 9 Survey of Administrators Regarding the Use of the VIC, October 2011 ...... 535- 560

1 J Exhibit 10 Evaluations of the 40 h General Election ofOctober 14,2008 ...... 561- 602

K Exhibit 11 Election Imperfection: Problems encountered by the student electorate, Dalhousie Student Union, 2008 ...... 603- 612 - 2-

(Tab 3- Affidavit of Jessica McCormick- continued)

L Exhibit 12 Report of the Chief Electoral Officer of Canada on the 41st General Election ofMay 2, 2011 ...... 613- 676

M Exhibit 13 Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, April 8, 2014 ...... 677 -707

N Exhibit 14 Excerpt from Elections Canada website September 16-23 Blog by Jessica McCormick ...... 708 -709

0 Exhibit 15 Elections Canada Strategie Plan 2008-2013 ...... 710 -729

P Exhibit 16 Office of the ChiefElectoral Officer Report on Plans and Priorities 2014-15 ...... 730 -770

Q Exhibit 17 Elections Canada Service Standards for Ensuring Accessible Registration and Voting Processes for Student Electors ...... 771 -784

VOLUME3

R Exhibit 18 Elections Canada Guide for Community Relations Officers ...... 785- 827

S Exhibit 19 Online Survey of Associations Prepared for Elections Canada, January 2009 ...... 828- 863

1 T Exhibit 20 Survey of electors following the 40 h General Election, March 2009 ...... 864- 974

U Exhibit 21 Local Outreach in the 41st General Election Key Learnings Report, November 14, 2011 ...... 975- 992

V Exhibit 22 Transcript ofProceedings- Procedure and House Affairs Committee, April 7, 2014 ...... 993 -1029

W Exhibit 23 Trans cri pt of Proceedings - Procedure and Ho use Affairs Committee, March 6, 2014 ...... 1030- 1080

X Exhibit 24 Transcript of Proceedings - Procedure and House Affairs Committee, April 8, 2014 ...... 1081- 1118

Y Exhibit 25 Transcript of Proceedings - Procedure and Ho use Affairs Committee, March 25, 2014 ...... 1119 -1152 - 3-

(Tab 3- Affidavit of Jessica McCormick- continued)

z Exhibit 26 Elections Canada Quarterly Financial Report 2014-2015 For the quarter ended June 30, 2014 ...... 1153- 1159

AA Exhibit 27 Elections Canada's Proposed Amendments to Bill C-23 as of April8, 2014 ...... 1160 -1173

VOLUME4

4. Affidavit of Sandra McEwing sworn January 7, 2015 ...... 1175- 1178

A Exhibit A Affidavit of Sandra McEwing sworn April 16, 2012 Federal Court file No. T -619-12 ...... 1179- 1181

5. Affidavit of Peggy Walsh Craig sworn October 29, 2014 ...... 1183 -1188

A Exhibit 1 Reasons for Judgment and Judgment released on May 23,2013- Federal Court file Nos. T-619-12, T-620-12, T-621-12, T-633-12, T-634-12, T-635-12 ...... 1189 -1287

B Exhibit 2 Affidavit of Peggy Walsh Craig sworn April14, 2012- Federal Court file No. T-633-12 ...... 1288- 1291

C Exhibit 3 Matthews Production Order dated June 8, 2011 ...... 1292 -1313

D. Exhibit 4 Dickson Information to Obtain a Production Order November 2012 ...... 1314 -1345

E Exhibit 5 Chief Electoral Officer's statement dated March 15, 2012 .... 1346 -1347

F Exhibit 6 Chief Electoral Officer's Report to Standing Committee On Procedure and Ho use Affairs, March 29, 2012 ...... 1348 - 13 91

G Exhibit 7 Preventing Deceptive Communications with Electors C.E.O. Report issued March 26, 2013 ...... 1392 -1409

VOLUMES

6. Affidavit of Harry Neufeld sworn December 30,2014 ...... 1411-1423

A Exhibit A Harry Neufeld Curriculum Vitae ...... 1424- 1428

B Exhibit B Compliance Review- Interim Report ...... 1429- 1504 - 4-

(Tab 6- Affidavit of Harry Neufeld- continued)

C Exhibit C Compliance Review- Final Report and Recommendations ...... 1505- 1581

D Exhibit D Transcript of Proceedings - Standing Committee on Procedure and House Affairs, March 27, 2014 ...... 1582 -1592

E Exhibit E Senate Legal and Constitutional Affairs Committee Proceedings report of April 8- 10, 2014 ...... 1593- 1614

7. Affidavit of Harry Neufeld swom January 8, 2015 ...... 1616- 1618

8. Affidavit of François Gélineau swom January 14,2015 ...... 1619 -1627

A Exhibit A François Gélineau Curriculum Vitae ...... 1628 - 163 9

B Exhibit B Who Participates? A Closer Look at the Results of the National Youth Survey, June 28, 2013 ...... 1640- 1669

C Exhibit C National Youth Survey Report, September 20, 2011 ...... 1670- 1733

D Exhibit D List of Documents Reviewed ...... 1734- 1735

VOLUME6

9. Affidavit of Henry Milner swom January 9, 2015 ...... 1737 -1753

A Exhibit A Henry Milner Curriculum Vitae ...... 1754- 1762

B Exhibit B Letter from leading political scientists in Canada and Intemationally, Globe and Mail, March 19, 2014 ...... 1763- 1765

C Exhibit C Y outh Electoral Engagement in Canada, January2011 ...... 1766-1791

D Exhibit D Open Letter- statement by leading political scientists In Canada, April 2014 ...... 1792 - 1822

1O. Affidavit of David C. El der swom January 12, 2015 ...... 1824- 1849

A Exhibit A David C. Eider Curriculum Vitae ...... 1850- 1853

B Exhibit B List of Documents Consulted ...... 1854 -1857 - 5 -

11. Affidavit of Ilona Dougherty swom January 8, 2015 ...... 1859- 1876

A Exhibit A Ilona Dougherty Curriculum Vitae ...... 1877- 1882

B Exhibit B Implementation of the Identification Requirements in the Canadian North Final Report, October 7, 2008 ...... 1883- 1914

C Exhibit C Youth Engagement and Mobilization in the 2010 Toronto Municipal Election, May 2011...... 1915 -1965

D Exhibit D Final Report to Elections Canada- BC Y outh Registration Pilot Project, March 20, 2014 ...... ,...... 1966- 2019

E Exhibit E Apathy is Boring's Statement before Bouse of Commons Committee on Procedure and Bouse Affairs, April10, 2014 ...... 2020- 2025

VOLUME7

12. Affidavit of Mark Coffin swom January 8, 2015 ...... 2027- 2042

A Exhibit A CBC News Report dated October 14, 2008 ...... 2043- 2045

B Exhibit B Election Imperfection- Dalhousie Student Union Report, 2008 ...... 2046- 2055

C Exhibit C Springtide Collective- Nova Scotia Y outh Civic Literacy Report ...... 2056- 2078

13. Affidavit of Lucy Draper-Chislett swom J anuary 9, 2015 ...... 2080 - 2082

A Exhibit A Request under Access to Jriformation Act to Elections Canada from SGM, September 2014 ...... 2083 - 2092

B Exhibit B Elections Canada Response to SGM Request October 24, 2014 ...... 2093- 2119

C Exhibit C Supplemental Access to Information Act Request, October 31, 2014 ...... 2120- 2121

D Exhibit D Elections Canada Response to Supplemental Request, December 30, 2014 ...... 2122- 2153 Tab 4 1175

Court File No. 14-513961

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE COUNCIL OF CANADIANS, THE CANADIAN FEDERATION OF STUDENTS, JESSICA McCORMICK, PEGGY WALSH CRAIG, and SANDRA McEWING

Applicants

-and-

HER MAJESTY IN RIGHT OF CANADA AS REPRESENTED BY THE ATTORNEY GENERAL OF CANADA

Respondent

AFFIDAVIT OF SANDRA McEWING (sworn January 7, 2015)

1. I, SANDRA McEWING, of the City of Winnipeg, in the Province of Manitoba, MAKE OATH AND SAY as follows:

2. I am a Canadian citizen and eligible voter residing in the electoral district of Winnipeg South Centre.

3. I am one of eight other individuals who brought six applications ("the Applications") pursuant to section 524(1)(b) of the Canada Elections Act S.C. 2000, c. 9 (the "Act") to contest the results of Canada's 41st General Election ("the Election"). The Applications sought the annulment of the results of the Election for six electoral districts across Canada on the grounds that fraud or corrupt or illegal practices affected the result of the election in those districts. 1176 -2-

4. The Applications were filed on or about on March 26, 2012 and were heard together by the Honourable Mr. Justice Mosley on December 10-17, 2012. The decision ofthe court ("the decision") was released on May 23, 2013. I have reviewed the affidavit of Peggy Walsh Craig swom October 29, 2014 ("affidavit of Peggy Walsh Craig") and a copy of the decision is attached thereto as Exhibit 1.

5. Based on my status as im applicant in the above proceedings, I have personal knowledge of the matters contained in this affidavit. Where I make statements in this affidavit that are not within my personal knowledge, but are based on information I have obtained, I have identified the source of the information and believe it to be true.

6. I swore an affidavit in support of the application on April16, 2012. That affidavit, which is attached hereto as Exhibit A, sets out the nature of the telephone calls I received leading up to the Election. One of the calls I received was a pre-recorded message purporting to be from Elections Canada telling me that my polling station had been changed. I knew that the information the message provided was incorrect because I had verified the correct polling station a few hours before receiving the call. At the time I received the cali, I did not suspect that the cali was not from Elections Canada and dismissed the incorrect information as a simple error.

7. In late February 2012, I became aware by way of media reports that other individual electors had received suspicious calis allegedly from Elections Canada indicating that their polling station had changed. I also learned that Elections Canada does not phone individual electors and my polling station had not been changed.

8. The media reports described a statement, called an Information to Obtain ("ITO"), that was swom by Elections Canada investigator Allan Mathews to investigate misleading phone calls that had been reported in the electoral district of Guelph Ontario prior to the election (the "Mathews ITO"). The Mathews ITO and severa! others, including two sworn by investigator Mr. John Dickson (the "Dickson ITO"), were adduced in evidence 1177 - 3 -

in the Applications before the Federal Court. Copies of the Mathews ITO and one of the Dickson ITOs are appended to the affidavit of Peggy Walsh Craig as Exhibits 3 and 4.

9. The media also reported that similar calls to tho se described in the Mathews ITO had also been reported in other ridings.

1O. It was only by way of the media coverage emanating from the disclosure of the Mathews ITO that I becarne aware that the call I received may have been a part of a fraudulent or illegal organized carnpaign to suppress the vote for certain candidates and thereby affect the result of the election. As a result, in late February or early March, 2012 I made a complaint to Elections Canada about the calls I had received.

11. The judge of the Federal Court found that fraud had occurred during the election. He found that this fraud occurred by way of an elaborate scheme of misleading calls misdirecting voters about the location of polling stations for the purpose of suppressing the vote· of electors who had previously indicated a voting preference for an opposition party. The judge also found that the individual(s) responsible for this fraudulent scheme went to great lengths to ensure that their identity would not be discovered. I believe that the only reason that these important court findings were made was because of the media reports about the investigations and the public statements made by Elections Canada which prompted myself and other Canadians to initiate the Applications in the public interest.

12. By way of media reports shortly before the decision of the Federal Court was released, I becarne aware that in March 20 13, Mr. Marc Mayrand, the Chief Electoral Officer of Canada, issued a report that outlined the chronology of events surrounding Elections Canada investigations and listed challenges faced by investigators in obtaining the evidence required to take enforcement measures. The report made several recommendations aimed at increasing the ability of Elections Canada to intervene and investigate potential abuses of the electoral process promptly and effectively. That report is set out in the affidavit of Peggy Walsh Craig as Exhibit 7. 1178 -4-

13. I swear this affidavit in support of this Application because as a Canadian citizen, I am concemed that the Fair Elections Act will make it more difficult for Canadian citizens to be made aware of fraud and other threats to the democratie system as occurred in the previous election. Without access to this information, citizens like myself will not be able to take meaningful action in the public interest to protect the integrity of the electoral system. I swear this affidavit for no other or improper purpose.

SWORN before me at the ) City ofToronto, in the ) Province of Ontario, on ) ) ) ) ) ) ~Commissioner for Taking Affidavits ) ....

This is Exhibit •••• ~ •••.• referred to in the 1179 affidavit ot .. ~ .?).":1)~8.?.\ .. C0s. f\'1 .t.~.lir

Court File No. T- 61(\- \(.

FEDERALCOURTOFCANADA

BETWEEN:

SANDRA McEWING and BILL KERR

Applicants

-and-

AITORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECI'ORAL OFFICER), JOHANNA GAIL DENESIUK (RETURNING OFFICER FOR WINN1PEG SOUTH CENTRE), JOYCE BATEMAN, ANITA NEVILLE, DENNIS LEWYCKY, JOSHUA MCNEIL, LYNDON B. FROESE, MATT HENDERSON

Respondents

AFFIDAVIT OF SANDRA McEWING (sworn Aprilj; 2012)

I, SANDRA McEWING, of the City of Winnipeg, in the Provin~e of Manitoba, MAKE OATH AND SAY as follows:

1. I am an elector who was eligible to vote in the electoral district of Winnipeg South Centre during Canada's 41st General Election, which occurred on May 2, 2011. ("the Election").

2. At Ieast a week before election day, I remember receiving a live telephone cali from someone indicating that they were calling on behalf of the Conservative Party of Canada, who asked if they could rely on my support during the May 2, 2011 Election. I told the caller that I would not be supporting the Conservative Party of Canada, and told them not to cali me again. 1180 - 2 -

3. I voted in the advance polis located at 900 Harrow Street East, Winnipeg, Manitoba in an office located above the Assiniboine Credit Union.

4. However, on the aftemoon of May 2"d, 2011, I received a telephone cali that contained a pre-recorded message purporting to be from Elections Canada. The recording stated that my polling station bad moved from Earl Grey Community Centre, the voting station identified on my Election Card. 1 do not recall exactly where the recording directed me to vote, but I remember thinking that the polling station it proposed was entirely in the wrong direction.

5. I knew the recording was providing me with the wrong polling station because I had confirmed online that the Earl Grey Community Centre was the correct polling station for my son, who resides with me, only a few hours before receiving the cali.

6. At the time I received the May 2, 2011 call, I did not suspect that the cali was not from Elections Canada and only became aware through media coverage in late February, 2012 that the cali was likely to have been fraudulent or illegal and part of an organized campaign to suppress the vote in my riding for certain candidates, and thereby affect the result of the Election.

7. I subsequent! y filed a complaint with Elections Canada regarding the May 2, 2011 cali in or about the beginning of March, 2012.

8. I make this affidavit in support of an application to contest the result of the 2011 election in the ri ding of Winnipeg South Centre, and for no other or improper purpose.

SWORN before me at the City of Winnipeg, ) in the Province o~)1anjtoba, on April 16, ) l~~. 2012. ~?t_r;/[/ · ) -~~::t:"':::--':-"-'~/=/j= i.r.=.L'::"::(.::-?~1"_,_·· -?'t--- ·Jl .ji ) RA MCEWING ------~~~··------A Notary PuoJfcjkândfor the ) Province of,.Manitoba ) ;Frr-1 ~~~ f (~ nr.: 'j GJ. ,-: h(' rJ r/r-IJ f p'/fF l' 1" -;. {~ ~ J/( if Sr. 'fr 1____ (}· ~: ('l 1)/ v·· 'ej' f fB. (dsJ 1t 2 SANDRA McEWING and BILL KERR -and- ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), JOHANNA GAIL DENESIUK (RETURNING OFFICER FOR WINNIPEG SOUTH CENTRE), JOYCE BATEMAN, ANITA NEVILLE, DENNIS LEWYCKY, JOSHUA MCNEIL, LYNDON B. Applicants FROESE, MATT HENDERSON Respondents

Court File No. T-619-12

FEDERAL COURT OF CANADA

Proceeding commenced at OTTAWA

AFFIDAVIT OF SANDRA McEWING

SACK GOLDBLATT MITCHELL LLP 30 Metcalfe Street Suite 500 Ottawa, Ontario K1P 5L4

Steven Shrybman (LSUC No. 20774B) tel: 613-235-5327 fax: 613-235-3041

Solicitor for the Applicants

...... 1-'- 00 ~ THE COUNCIL OF CANADIANS, et al. HER MAJESTY THE QUEEN IN THE Court File No: CV-14-513961 and Applicants RIGHT OF CANADA Respondent

ONTARIO SUPERIOR COURT OF JUSTICE

AFFIDAVIT OF SANDRA MCEWING

(SWORN JANUARY 7, 2015)

SACK GOLDBLATT MITCHELL LLP Barristers & Solicitors 20 Dundas St. West, Suite 11 00 Toronto, ON M5G 208

Steven Shrybman Tel. 613-235-5327 Fax.613-235-3041

Solicitors for the Applicants .....

00""""' f'.:J Tab 5 1183

Court File No. CV-14-513961

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: THE COUNCIL OF CANADIANS, THE CANADIAN FEDERATION OF STUDENTS, JESSICA McCORMICK, PEGGY WALSH CRAIG, and SANDRA McEWING

Applicants

-and-

HER MAJESTY IN RIGHT OF CANADA AS REPRESENTED BY THE ATTORNEY GENERAL OF CANADA

Respondent

AFFIDAVIT OF PEGGY WALSH CRAIG (sworn October.l~ 2014)

1. I, PEGGY WALSH CRAIG, of the City of North Bay, in the Province of Ontario, MAKE OATH AND SAY as follows:

2. I am a Canadian citizen and eligible voter residing in the electoral district of Nipissing­ Timiskaming.

3. I am one of eight other individuals who brought six applications ("the Applications") pursuant to section 524(1)(b) of the Canada Elections Act S.C. 2000, c. 9 (the "Act") to contest the results of Canada's 41st General Election ("the Election"). The Applications sought the annulment of the results of the Election for six electoral districts across Canada on the grounds that fraud or corrupt or illegal practices affected the result of the election in those districts. 1184 -2-

4. The Applications were filed on or about on March 26, 2012 and were heard together by, the Honourable Mr. Justice Mosley on December 10-17, 2012. The decision of the court ("the decision") was released on May 23, 2013 and is attached hereto as Exhibit 1.

5. Based on my status as an applicant in the above proceedings, I have personal knowledge of the matters contained in this affidavit. Where I make statements in this affidavit that are not within my persona! knowledge, but are based on information I have obtained, I have identified the source of the information and be lieve it to be true.

6. I swore an affidavit, in support of the Application on April 14, 2012. That affidavit which is attached hereto as Exhibit 2 sets out the nature of the telephone calls I received leading up to the Election. One of the calls I received was a pre-recorded message purporting to be from Elections Canada telling me that my polling station had been changed. When I received the call I did not suspect that the call was not from Elections Canada. At the time, I was aware that the information contained in the message about my polling station was incorrect but I simply dismissed the message as an inadvertent error.

7. However, in late February 2012, I became aware by way of media reports that Elections Canada was investigating reports by electors that they had received similar calls also purporting to be made by Elections Canada indicating that their polling station had changed due to higher than anticipated voter tumout. I leamed at that time that in fact, Elections Canada does not phone individual electors and my polling station had not been changed.

8. Those media reports described an investigation by the Commissioner of Canada Elections as described in an Information to Obtain ("ITO") that had been swom severa! months earlier by Allan Mathews an investigator appointed by the Commissionet. That ITO sought the production of certain records pertaining to misleading phone calls made to electors in the electoral district of Guelph Ontario in the days leading to the Election. 1185 -3-

9. Mr. Justice Mosley explained the contents of the Mathew's ITO in his reasons for decision as follows:

"The making of these calls by a person or persans unknown, in Mr. Mathews' belief, wilfully prevented or endeavoured to prevent an elector from voting contrary to paragraph 281 (g) of the Act. As a result, he alleged, offences had been committed contrary to s 491(3)(d) and s 482(b) of the Act." (at para. 9)

10. The Mathews ITO and several others, including those swom by another Elections Canada investigator, Mr. John Dickson, were adduced in evidence in the proceedings before the Federal Court. Copies oftwo ofthese ITOs as swom by Mr. Mathews on June 8, 2011 and Mr. Dickson in November 2012 are attached hereto as Exhibit 3 ("Mathews ITO") and 4 ("Dickson ITO").

11. As a result of this media coverage, on March 1, 2012 I made a complaint to Elections Canada about the calls I had received.

12. From numerous media reports following the initial revelation of the Elections Canada investigation I leamed that:

• Similar illicit telephone calls had been reported in ridings other than Guelph; • On March 15, 2012 the Chief Electoral Officer of Canada, Mr. Marc Mayrand, issued a statement conceming allegations that fraudulent calls had been made during the election. In this statement, Mr. Mayrand indicated that since recent media reports of alleged fraudulent telephone calls during the Election, approximately 31,000 Canadians contacted Elections Canada to share their concems. A copy of his statement is attached hereto as Exhibit 5; • On March 29, 2012 Mr. Mayrand also appeared before the House of Commons Standing Committee on Procedure and House Affairs ("the Committee"). Mr. Mayrand indicated that at that time, Elections Canada had received close to 40,000 complaints, over 800 of which were complaints alleging specifie 11.86 -4-

occurrences of improper or fraudulent caUs across the country. A copy of Mr. Mayrand's statements to the Committee are attached hereto as Exhibit 6; and • On March 26, 2013 Mr. Mayrand issued a report in response to the incidents that occurred during the Election involving deceptive communications with electors. The report outlined the above chronology of events, particularly, the Guelph complaints, the disclosure of the ITO, the media coverage, and the statements by the Chief Electoral Officer. That report is attached hereto as Exhibit 7.

13. It was only by way of this media coverage, emanating from the investigation by the Commission er of Canada Elections and reporting of the comments of the Chief Electoral Officer that I came to realize that the call I received may have been a part of a fraudulent or illegal organized campaign to suppress the vote for certain candidates and thereby affect the result of the election. That belief caused me to file the Application noted above.

14. The decision of the Federal Court described the events leading up to the filing of the Applications. In discussing whether the Applications were brought within the allowable time period, Justice Mosley made the following findings:

"public disclosure of Mathews' Information to Obtain production orders in relation to the investigation into the electoral offences in Guelph is largely responsible for having alerted the applicants to the significance of the caUs that they received." (at para. 152)

"In this instance, the applicants were not put on notice of the fraud by their awareness of the caUs that they had received. Nor were they aware of the fact that those calls were part of an orchestrated campaign of misdirection. That fact was not readily discoverable by them with a reasonable exercise of diligence within thirty days of the occurrence. The applicants bore no individual responsibility to make in-depth inquiries about the caUs they had received." (at para. 123) 11.87 -5-

"lt is not reasonable to expect that the average Canadian elector would have understood that the caUs received on or before May 2, 2011 were not from Elections Canada until they saw the national media reports and made the connection between the caUs they received and the investigations." (at para. 124)

15. But for media reports based on public court documents discovered many months after the fact, and subsequent statements by the Chief Electoral Officer, the nature and extent of that scheme would, I believe, have never come to light.

16. In addition, the decision of the Court highlighted the covert and orchestrated nature of the scheme and the difficulty of obtaining evidence to support a case of alleged voter suppression. Such findings include:

• "the evidence points to a concerted campaign" (at para. 4) • "there was an orchestrated effort to suppress votes during the 20 11 election campaign by a persan or persans with access to the CIMS database" (at para. 184) • "the evidence points to elaborate efforts to conceal the identity of tho se accessing the database and arranging for the calls to be made." (at para. 245) • "This case was problematic from the outset, as the applicants acknowledged, because of the challenges they faced in collecting evidence to support what they rightly identified as a widespread attempt at voter suppression. The evidence of fraud was most clearly demonstrated in the Guelph investigation. As the investigations continued, the Commissioner' s officers uncovered evidence that the Guelph experience was not unique and that similar attempts were made across the country including in the six subject ridings" (at para. 252)

17. The Court also found that under the Canada Elections Act, it was Parliament's clear intention for an application to challenge an election result to be brought and dealt with without delay (at para. 88). Unfortunately, the delay in bringing these events to light hampered the ability of experts retained on my behalf to determine the extent and impact 1188 -6-

of the voter suppression campaign the Court found to have taken place during the 2011 election. In my view, reforms to the Canada Elections Act at issue in this Application not only fail to address that problem but will make discovery of any future covert scheme to defraud Canadian Electors even less likely for those adversely impacted.

18. In the end, the Court found, that misleading caUs about the locations of polling stations were made to electors in ridings across the country and that the purpose of tho se caUs was the suppress the vote (at para. 244). Justice Mosley stated that this form of voter suppression "struck at the integrity" of the electoral process (at para. 3) and explained the importance of the ability of citizens being able to bring forward a case such as that one in which widespread fraud may have affected the election result. He stated:

"The right of citizen electors to seek to annul election results that they reasonably believe to be tainted by fraud is, in my view, a matter of high public interest and analogous to Charter litigation. A concern that has frequently been raised is that such litigation should not be beyond the reach of the ordinary citizen." (at para. 259)

19. I swear this affidavit in support of this Application because as a Canadian citizen, I am concerned about the integrity of the democratie system and the ability of citizens to be made aware of, and take meaningful action in response to threats to the integrity of the electoral system. I swear this affidavit for no other improper purpose.

SWORN before me at the City of North Bay, In the Province of Ontario, on October 2014.

Commissioner for Taking Affidavits TABA .~ ...

1189

Federal Court Cour fédérale

Date: 20130523

Docket: T-619-12 T-620-12 T-621-12 T-633-12 T-634-12 T-635-12

Citation: 2013 FC 525

Ottawa, Ontario, May 23, 2013

PRESENT: The Honourable Mr. Justice Mosley

BETWEEN:

T-619-12

SANDRA MCEWING AND BIT.,L KERR

Applicants and

ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE ClllEF ELECTORAL OFFICER), JOHANNA GAn, DENESIUK (RETURNING OFFICER FOR WINNIPEG SOUTH . CENTRE), JOYCE BATEMAN, ANITA NEVILLE, DENNIS LEWYCKY, JOSHUA MCNEIT.,, LYNDON B. FROESE, MATT HENDERSON

Respondents 1190 Page: 2

AND BETWEEN:

T-620-12

KAY BURKHART :::::- Applicant ::J c and (il ~ LO N LO (.) ATTORNEY GENERAL OF CANADA, LL {') MARC MAYRAND 't""" 0 (THE CIDEF ELECTORAL OFFICER), N DIANNE CELESTINE ZlMMERMAN (RETURNING OFFICER FOR SASKATOON -ROSETOWN -BIGGAR), KELLY BLOCK, LEE REANEY, VICKI STRELIOFF, NETTIE WIEBE

Respondents AND BETWEEN:

T-621-12

JEFF REID

Applicant and

ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CIDEF ELECTORAL OFFICER), LAUREL DUPONT (RETURNING OFFICER FOR ELMWOOD-TRANSCONA), JIM MALOWAY, ILONA NIEMC.zy[(, LAWRENCE TOET, ELLEN YOUNG

Resjxmdents 1191 Page: 3

AND BETWEEN:

T-633-12 KENFERANCE AND PEGGY WALSH CRAIG ...... :J c Applicants Cil ~ and 1.0 ("\! 1.0 ü LI.. ('1} ATTORNEY GENERAL OF CANADA, "<"" 0 MARC MAYRAND ("\! (THE CIDEF ELECTORAL OFFICER), DIANNE JAMES MALLORY (RETURNING OFFICER FOR NIPISSING-TIMISKAMING), JAY ASPIN, SCOTT EDWARD DALEY, RONA ECKERT, ANTHONY ROTA

Res pondents AND BETWEEN:

T-634-12

YVONNE KAFKA

Applicant

and

AITORNEY GENERAL OF CANADA, MARC MAYRAND (THE CIDEF ELECTORAL OFFICER), ALEXANDER GORDON (RETURNING OFFICER FOR VAN COUVER ISLAND NORTH), JOHN DUNCAN, MIKE ROLLAND, RONNA-RAE LEONARD, SUE MOEN, FRANK MARTIN, JASON DRAPER

Respondents 11H2 Page: 4

AND BETWEEN:

T-635-12

1HOMAS JOHN PARLEE

Applicant ...... and :.J c: ro ~ LO N ATIORNEY GENERAL OF CANADA, LO ü MARC MAYRAND LL t") (THE CHIEF ELECTORAL OFFICER), .,-- 0 SUSAN J. EDELMAN N (RETURNING OFFICER FOR YUKON), RYAN LEEF, LARRYBAGNELL, KEVIN BARR, JOHN STREICKER

Respondents

REASONS FOR JUDGMENT AND JUDGMENT

I. Introduction ...... 5 ll. Background ...... 7 ill. The Statutory and Jurisprudential Framework ...... 14 A. The Canada Elections Act ...... 14 B. Part 20 of the Act- CONTESTED ELECTIONS ...... 20 (1) The Act contemp lates parallel criminal and civil pro cesses ...... 20 (2) The test, burden and standard ofprooffor invalidity ...... 21 (3) The meaning of'":fraud" in s 524(1) ...... 25 (4) •• ... that affected the result of the Election." ...... 29 (5) When Must an Application to Annul be Made? ...... 34 (6) Section 527, ''knew or should have known" ...... 36 IV. Analysis ...... 37 A. Preliminary motions ...... 37 (1) Was there maintenance and champerty by the Council of Canadians? ...... 37 (a) Is Mr. Henein's affidavit admissible? ...... 39 (b) Conclusion on maintenance and champerty ...... ~ ...... 41 (2) Are the Applications Statute-Barred? ...... 44 (3) Should the opinion evidence ofMr. Graves be struck? ...... 48 B. Admissibility and weight of the evidence ...... 55 (1) Evidence ofthe applicants ...... 55 (2) The ITO evidence ...... 56 (3) Mr. Penner's evidence ...... 65 1193

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(4) The evidence ofMs. Desgagné and Mr. Langhorne ...... 67 (5) The EKOS Survey Evidence ...... 71 (6) Dr. Corbin's evidence ...... 78 (7) Dr. Nevitte's evidence ...... 83 (8) Evidence ofthe respondent MPs' campaign managers ...... 86 v. Conclusion on the Merits ...... 86 A. Bas "fraud" under Section 524(1)(b) been made out? ...... 86 B. Did the fraud affect the results of the election in the six subject ridings? 89 C. Did the fraud call into question the integrity of the elections? ...... 90 D. Should the Court exercise its discretion to annul the elections? ...... 92 Vl. Costs ...... 93

1. Introduction

" ... very serious matters that strike at the integrity ofour democratie process. "

[1] In his remarks to the Standing Committee on Procedure and Bouse Affairs of the Bouse ofCommons on March 29, 2012, Mr. Marc Mayrand, Chief Electoral O:fficer of Canada, made the following cornments about the allegations that are at the heart ofthese applications:

These are very serious matters that strike at the integrity of our democratie process. If they are not addressed and responded to, they risk undermining an essential ingredient of a healthy democracy, namely the trust that electors have in the electoral pro cess.

[2] The applicants, eight Canadian citizen voters residing in six electoral districts, brought these proceedings to annul the results ofthe 2011 General Election in their ridings because of efforts to suppress votes that occurred during that election. Those efforts involved telephone calls purporting to be from Elections Canada. In the calls, voters were told that the locations ofpolling stations in their districts had been moved from the places speci:fied in the printed information provided by Elections Canada prior to the day of the vote. The information was false and

Elections Canada neither made nor authorized those calls. 1194 Page: 6

[3] The calls struck at the integrity of the electoral process by attempting to dissuade voters from casting ballots for their preferred candidates. This form of''voter suppression", was, until the 41st General Election, Iargely unknown in this country.

[4] The evidence presented in these applications points to a concerted campaign by persons who had access to a database of voter information maintained by a political party. It was not alleged that any of the candidates ofthat party, including those who were successful in the six ridings at issue, were responsible for this campaign but that others took it upon themselves to attempt to influence the election results in their :fàvour.

[5] As a result ofthese actions, the applicants seek to set aside the 2011 Election results in the six ridings under Part 20 of the Canada Elections Act, SC 2000, c 9 [the Act].

[6] The central issue to be determined in these proceedings was the e:ffect the calls had, if any, on the election results in the six subject ridings. If satisfied that the calls affected the result in one or more of the ridings or called into question the integrity of the electoral process, the

Court may annul the outcome in that riding or ridings. For the reasons that follow, I :find that electoral fraud occurred during the 41st General Election but I am not satisfied that it has been established that the fraud a:ffected the outcomes in the subject ridings and I decline to exercise my discretion to annul the results in those districts. 1195 Page: 7

II. Background

[7] These applications were brought ten months a:fter the election. Complaints about misleading and harassing calls had been made to Elections Canada both before and during the election day on May 2, 2011 but the matter did not attract much public attention until, in Iate

February 2012, journalists found in an Edmonton court file an ''Information to Obtain a

Production Order Pursuant to Section 487.012 of the Criminal Code" (''ITO'') swom by Allan

Mathews, an Elections Canada investigator. The Mathews ITO beca:rne a public document after a return was made to the court on the execution of the production order. The media then began to report widely that Elections Canada officiais were actively investigating complaints made during and after the election.

[8] The Mathews ITO was :filed to obtain records from an Edrnonton-based company called

Racl~ine Inc., in relation to complaints by voters that there had been efforts to suppress votes in the electoral district ofGuelph, Ontario. Mr. Mathews descnbed the nature ofthe complaints as follows:

Individual electors have described to me receiving telephone calls around 10:00 hours of the rnorning ofMay 2, 2011. The caller was usually descnbed as a recorded female voice giving a bilingual message, who clairned to be calling on behalf ofElections Canada.

The English message received by electors is as follows:

This is an autornated message from Elections Canada. Due to the projected increase in poli turnout your voting location bas been changed. Your new voting location is at. . . Once again your new poli location is at ... Ifyou have any questions please cali our hotline at 1-800-434-4456. We apologize for any inconvenience that this may cause. 1196

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[9] Mr. Mathews :further deposed that Elections Canada does not telephone individual electors and did not make the calls in question. The assertion that the polling stations bad been changed was untrue. The making of these calls by a persan or persans unknown, in Mr.

Mathews' beliet: wilfully prevented or endeavoured to prevent an elector from voting contrary to paragraph 28l(g) ofthe Act. As a result, he alleged, o:lfences bad been committed contrary to s

491(3)(d) and s 482(b) of the Act.

[10] Media accounts subsequent to the publication ofthe Mathews ITO reported that similar illic it telephone calls bad be en reported in other ridings. On March 15, 2012 the Chief Electoral

O:fficer, Marc Mayrand, issued a statement: "Chief Electoral O:fficer of Canada Addresses

Allegations ofWrongdoing During the 41st General Election". Mr Mayrand's statement indicated that Elections Canada bad, as ofthat date, received over 700 complaints from

Canadians descnbing specifie circurnstances where they believed that wrongdoing bad occurred during the 41st General Election. As of the date of Mr. Mayrand' s appearance before the

Standing Committee on Procedure and Bouse Afiàirs two weeks later, on March 29, 2012, close to 40,000 Canadians bad contacted Elections Canada to express their concerns in response to the media reports.

[11] This was the context in which these applications were :filed with the Court. They contest the results of the election in the six electoral districts of Elmwood-Transcona, Nipissing-

Timiskaming, Saskatoon-Rosetown-Biggar, Vancouver Island North, Winnipeg South Centre and Yukon. 1197 Page: 9

[12] The respondents are the Attorney-General of Canada, the Chief Electoral O:fficer of

Canada, the Returning Officers for the electoral districts, the six elected Conservative Party of

Canada Members of Parliament (MPs), three lll1Successful Liberal candidates (Nipissing-

Timiskaming, Winnipeg South Centre, and Yukon), the six lll1Successful New Democratie Party candidates, and Matt Henderson, an lll1Successful Independent candidate in Winnipeg South

Centre.

[13] Notices of appearance were filed by each of the respondents. The respondent

Conservative MPs filed written representations and made oral subrnissions opposing the applications at the hearing. The New Democratie Party candidates filed written representations and made oral subrnissions in support of the applicants. The Liberal Party candidates, the

Attorney General of Canada, the Returning O:fficers and Mr. Henderson filed no subrnissions and took no active part at the hearing. Other candidates in the several ridings did not file notices of appearance. The Chief Electoral O:fficer provided written representations and oral submissions to assist the Court with respect to the interpretation of the Act.

[14] There were originally seven applications, but the seventh, in Court file T-616-12,Leanne

Bielli v Attorney General, was disrnissed in October 2012 when it emerged that the applicant, who had not voted due to a rnisleading call, had rnistaken her riding and resided in an adjacent one and not that which was the subject ofher application. A motion initiated by one of the respondents in T-616-12 and the evidence filed in that application were deemed continued in the other six applications. 1198

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[15] The Notices of Application were filed on March 23 and March 26, 2012. Pursuant to s

525(3) of the Act, such applications are to be "dealt with without delay and in a summary way".

As discussed by Mr. Justice Lederer in Wrzesnewskyj v Canada (Attorney General), 2012 ONSC

2873, [2012] OJNo 2308 (QL) ["Wrzesnewskyj'j at paragraphs 32-33, this means that they are to be dealt with without ail of the customary legal formalities. To proceed in "a summary way'' imposes lirnits on the evidence that may be gathered and heard. An additional limitation in this particular context is the met that the vote is secret.

[16] That the applications are to be dealt with expeditiously did not prevent the parties, particularly the respondent MPs, from bringing a considerable number of interlocutory motions.

It is, I think, helpful to provide an overview ofthe prelirninary proceedings to explain why this case has taken so long to be completed and to provide sorne background to the issues dealt with in these reasons.

[17] On May 22, 2012, two months after the applications were :filed, the respondent MPs. moved to have them dismissed as frivolous and vexatious, an abuse ofprocess and not brought within the time required under s 527 ofthe Act. The motions to strike were dismissed on ail grounds, save that oftimeliness,. on July 19,2012 foilowing a hearing before Prothonotary

Milczynski.

[18] Recognizing that the Act provided a mechanism to prevent abusive objections to election results from interfering with the democratie process, Prothonotary Milczynski found that such a situation had not been established on the record before her: 1199 Page: 11

Far from being frivolous or vexatious, or an obvious abuse, the applications raise serious issues about the integrity ofthe democratie process in Canada and identify practices that if proven, point to a campaign of activities that would seek to deny eligtb le voters their right to vote and/or manipula te or interfere with that right being exercised freely - ali of which if permitted to escape even the prospect ofjudicial scrutin y, could shake public :::;;;­ confidence and trust in the electoral process and in those who in :J c good fàith stand for public office. sCil LO N Bielli v Canada (Attorney General}, 2012 FC 916, [2012] FCJ No LO ü 971 (QL) at para 11 [Biellz]. 1.1.. (").,... 0 N

[19] Prothonotary Milczynski concluded that the issues would be best raised and argued on a full record. The question ofwhether the applications were brought within the statutory limitation period could not be resolved without the applicants' evidence and any possible cross- examinations on their evidence by the respondents.

[20] Also on May 22, 2012, the respondent MPs initiated a motion to have the applications dismissed on the ground that they were the product of maintenance and champerty by an orgaruzation not party to the proceedings, the Council of Canadians (the "Council''). This motion was supported by an affidavit swom by Peter Henein, a member of the law finn acting on behalf ofthe respondent MPs. The applicants moved shortly thereafter to strike the affidavit on the ground that it was contrary to Rule 82 ofthe Federal CourtsRules, SOR/98-106 [the Rules] and the principle that counsel may not be a witness in the same case in which they represent a party.

[21] Following a case conference in August, the applicants agreed to withdraw the Rule 82 motion without prejudice to their right to impugn the evidence at the hearing of the applications. 1200 Page: 12

In exchange, counsel for the respondent MPs agreed not to cross-examine a:ffiants representing the Council with respect to the motion to dismiss for maintenance and champerty.

[22] The respondent MPs moved in August 2012 to have an increased security for costs, totalling $260,409.00, paid into court by the applicants. This was denied by Prothonotary

Aronovitch on the basis that the ''respondent MPs have failed to raise grounds or bring to bear evidence that would justify any :further payment of security for costs, let alone in the amount requested." (Bielli v Canada (Attorney General), 2012 FC 1172 at para 5). Finding that the seven motions (one in each application) bad unnecessarily delayed and encumbered the proceedings, she ordered that the costs of the motions be paid by the respondent MPs in any event of the cause.

[23] Another series ofpreliminary motions concemed the expert opinion evidence :filed by the parties. The respondent MPs moved in August 2012 for Ieave to :file a sur-reply affidavit by their expert, Dr. Ruth Corbin. In September, the applicants moved for leave to file their own expert reply and the respondent MPs moved to strike the evidence of the applicants' expert, Mr. Frank

Graves, invoking an alleged lack of independence and impartiality. On October 10, 2012, the

Court issued a consent arder allowing bath parties to :file reply and sur-reply affidavits, without prejudice to their rights to make representations on the weight and probative value of the evidence during the hearing, but with agreement that neither the applicants nor the respondent

MPs would seek to serve and or :file any additional affidavits from experts. 1201 Page: 13

[24] In October 2012, the applicants moved for leave to file affidavit evidence introducing records from the Commissioner of Elections. Leave was granted, with the hearing judge to decide on the weight and probative value ofthis evidence.

[25] In Iate November 2012, additional ITO information having been brought to light by the press, the applicants moved for leave to examine three investigators for the Commissioner of

Elections, Mr. Mathews, Mr. Dickson, and Mr. Thouin, orto file an affidavit containing information about their investigations. A redacted affidavit with redacted exhibits was allowed on December 6, 2012. The Chief Electoral Officer moved to have investigation evidence admitted to the record, asking for an order permitting the :filing of a collection of documents brought to light through Access to Information and Privacy (ATIP) requests as exlnbits to an affidavit. This was also granted on December 6, 2012.

[26] Finally, on December 5, 2012, the applicants asked for relief from the October 10 consent order under which they could file no more expert opinion evidence, having belatedly discovered a factual error in the respondent MPs' reply evidence addressing Mr. Graves' affidavits. This motion was granted subject to the production ofMr. Graves for cross-examination at the hearing, as contemplated by s 525(3) of the Act and by the Rules.

[27] The hearing began as scheduled on Monday, December 10,2012 and was concluded on

Monday, December 17, 2012. In addition to the substantive merits ofthe applications and the procedural issue relating to timeliness, two of the motions brought by the respondents during the interlocutory proceedings remained to be deterrnined by the Court: the maintenance and 1202 Page: 14

champerty motion and the motion by the respondent 11P in the Don Valley East riding to strike the Graves evidence. As noted above, the motion to strike the Graves evidence bad been deemed to be continued on behalf of the other respondent 11Ps when the Don Valley East application was . dismissed. ::;;;- :J c sCil LO N [28] On January 24, 2013 the applicants moved to be granted leave pursuant to Ruie 312(a) of LO ü LI... the Ruies to adduce further affidavit evidence concerning another ITO swom by John B. Dickson ..-<:') 0 N in the course ofhis investigations on behalf ofthe Office ofthe Commissioner ofCanada

Elections, which had just become public. The respondent 11Ps opposed the motion. None of the ether parties ffied a response. By Order dated February 22, 2013 the Court granted the motion on the same terms as those under which the evidence of the ether ITOs was introduced and subject to the same objections on admissibility, weight, and relevance.

[29] I will now turn to the legislative and jurisprudential framework governing my determination ofthe issues raised in these proceedings.

ID. The Statutory and Jurisprudential Framework

A. The Canada Elections Act

[30] As noted at the outset, these proceedings were brought by applications under the Canada

Elections Act. The present version ofthis statute was enacted by Parliament in 2000 to implement the recommendations of a series of reports, including that of a Royal Commission on 1203 Page: 15

Electoral Reform and Party Financing tabled in 1992, five reports produced by a Special

Cornmittee ofthe House ofCommons during 1992 and 1993 and others submitted to Parliament by the Chief Electoral O:fficer, notably that following the 36th General Election in 1997.

[31] These reports called for the repeal ofthe existing legislation, the former Canada

1.() N Elections Actdating from 1970, the Dominion ControvertedElectionsAct,RSC 1985, c C-39, 1.() ü l.L. the Disenfranchising Act RSC 1985, c D-3, originally enacted in 1894, and the Corrupt Practices .,...C') 0 N Inquiries Act RSC 1985, c C-45, adopted in 1876. They also called for consolidation ofthe administrative frarnework for federal elections, the offences and penalties for violations and the procedures for contesting or controverting electoral results into one comprehensive code.

[32] One ofthe e:ffects of the adoption ofthese recommendations in the 2000 Act is that the jurisprudence under the former legislation may be oflimited value in interpreting the new enactments.

[33] In considering the relevant provisions of the 2000 Act, I have had the bene:fit of the views expressed by Justice Lederer in Wrzesnewskyj, above, and tho se of the majority and minority opinions of the Suprerne Court of Canada on appeal from that decision in Opitz v

Wrzesnewskyj, 2012 SCC 55, [2012] SCJNo 55 (QL) [Opitz].

[34] As stated by the majority in Opitz at paragraph 1, section 3 of the Canadian Charter of

Rights and Freedoms, PartI of the Constitution Act, 1982, being Schedule B to the Canada Act

1982 (UK.), 1982, c 11 [Charter], and the provisions ofthe Canada Elections Act have the clear 1204 Page: 16 and historie purposes ofenfranchising Canadian citizens and ofprotecting the integrity of our electoral process.

[35] Canadian citizens are guaranteed the right to vote for the candidate of their choice to serve as the Member ofParliament for the electoral district in which the citizen resides. Section 3 of the Charter provides:

3. Every citizen of Canada bas 3. Tout citoyen canadien a le the right to vote in an election droit de vote et est éligible aux ofmembers ofthe House of élections législatives fédérales Commons or of a legislative ou provinciales. assembly and to be qualified for membership therein.

[36] Section 6 of the Canada Elections Act gives practical e:ffect to that guarantee by providing that persans who are qualified as electors are entitled to have their names included m the list of electors for the electoral division in which they are ordinarily resident and to vote at the polling station for that electoral division at federal elections.

[37] The procedure for determining the lists of electors for each polling division is set out in

Part 7 of the Act. Preparation for the vote is govemed by Part 8. It is the responsibility ofthe returning o:fficer to establish one polling station for each polling division (s 120(1)). Additional stations may be established if justified by the number of electors in the district, with the prior approval of the Chief Electoral O:fficer (s 120(2)). Additional provisions in Part 8 specny the nature of the locations that may serve as polling stations, with regard to such considerations as accessibility and privacy, and the appointment of officiais to manage and secure the premises.

Part 9 contains the rnethod for setting the voting hours. 1205 Page: 17

[38] The selection of the location of each polling station is among the responsibilities of the returning o:fficers for each district with the approval ofthe Chief Electoral O:fficer. That would include any relocation of a polling station. The scheme of the legislation suggests that any notification to electors ofsuch a change would also be the responsibility ofthe retuming o:fficers and Chief Electoral O:fficer.

[39] Section 281 prolubits anyone from interfering with an elector when marking a ballot, from making :false statements or from preventing an elector from voting. Interference with an elector would include the type of conduct complained of in this proceeding; that is, dehberately providing :false information about a change in the location of a polling station.

[40] Part 19 ofthe Act, containing sections 479-521.1, deals with enforcement issues. Section

480 creates a general offence of obstructing the electoral process. Other specifie offences are set out in sections 481 to 499. These include the offence of electoral fraud under s 482(b) (inducing a persan to refrain from voting or refrain from voting for a particular candidate ''by any pretence or contrivance'') and that set out in paragraph 491(3)(d) (wilfully preventing or endeavouring to prevent an elector from voting at an election). These are the offences, according to the ITOs, which are being investigated by the Commissioner of Canada Elections in regard to the 2011 elections.

[41] Section 500 contains the general punishment provisions for the offences created by the preceding sections. The maximum penalties range from a fine of not more than $1,000 or three months' imprisonment, or bath, in most cases and a fine of $25,000 in one case, on summary 1206 Page: 18 conviction, to a fine of$5,000 or :live years' irnprisonment on conviction by indictment. Corrupt and illegal practices by candidates and their official agents are deak with in s 502, which carries a :live year maximum penaky and proscription from holding electoral or appointed office for up to seven years from the date of conviction.

LO [42] The office of Commissioner of Canada Elections is provided for in sections 509 to 515 of fè.l ü LL (") Part 19. The Commissioner is appointed by the Chief Electoral Officer and is responsible for .,-- 0 N ensuring that the Act is complied with and enforced. The Chief Electoral Officer can direct the

Commissioner to conduct an inquiry and the Commissioner can initiate an inquiry and receive complaints. Section 511 authorizes the Commissioner to refer a matter to the Director ofPublic

Prosecutions if he or she believes on reasonable grounds that an o:ffence has been committed. \ The Director of Public Prosecutions shall decide whether to initia te a prosecution (s 511 (1 )).

[43] The respondent l\1Ps contend that one of the options open to the applicants would have been to initiate a private prosecution, as the Act permits. Had they done so, it was submitted, the applicants, if successfi.ù in securing a conviction, could have taken advantage of the provision in s 515 permitting the criminal court to make an award ofcosts to the prosecuting party. This argument was advanced in the context ofthe champerty motion in response to the contention that private citizens would not have the resources to bring annulment applications without the support of third parties.

[44] However, private prosecutions may be initiated only with the prior written consent of the

Director of Public Prosecutions save for the instance where an elections officer bas to take steps 1207 Page: 19 to maintain arder at a polling place while the vote is ongoing (s 512; s 479(3)). Section 512 reads as follows:

512. (1) No prosecution for an 512. (1) L'autorisation écrite o:ffence under this Act may be du directeur des poursuites instituted by a persan other pénales doit être préalablement than the Director of Public obtenue avant que soient Prosecutions without the engagées les poursuites pour Director' s prior written infraction à la présente loi consent.

(2) Subsection (1) does not (2) L'autorisation n'est pas apply to an o:ffence in requise pour les infractions relation to which an pour lesquelles un election o:fficer has taken fonctionnaire électoral a measures under subsection pris des mesures dans le 479(3). cadre du paragraphe 479(3).

(3) Every document (3) L'autorisation fait foi purporting to be the de son contenu, sous Director' s consent under réserve de sa contestation subsection (1) is deemed to par le directeur des be that consent unless it is poursuites pénales ou called into question by the quiconque agit pour son Director or by someone compte ou celui de Sa acting for the Director or Majesté. for Her Majesty.

[45] While it is theoretically possible, I :find it difficult to conceive of any situation in which the Director of Public Prosecutions would consent to a private prosecution in relation to electoral fraud, a matter of great public interest. Thus the recovery of costs by a private prosecutor is possible but unlikely in this context. 1208 Page: 20

B. Part 20 of the Act- CONTESTED ELECTIONS

[46] Prior to the enactment of the 2000 Act, procedures to overturn election results were govemed by the above mentioned Dominion Controverted Elections Act, a 19th century statute.

In applications under that legislation the presiding Court could exercise both criminal and civil jurisdiction. In the various studies and reports on the former legislative regime, these procedures, requiring a :finding of criminal Iiability, were considered to be cmnbersome, costly and time- consuming and were, for those reasons, rarely employed. The two jurisdictions, civil and crimina~ were, therefore, treated separately in the 2000 Act

[47] The criminal process is now left to the Commissioner and the Director of Public

Prosecutions who may initiate investigations and prosecutions under Part 19, where justified by the evidence and the public interest. The prosecutions may result in penal sanctions against an individ ual or individ uals.

[48] Part 20 of the Act now provides for civil applications to overturn an election. It is a complete code for the validity of an election to be challenged by a candidate or an elector and the resuh will touch upon the election outcome; not provide sanctions against individuals. The election of a candidate may not be contested otherWise than in accordance with Part 20, and the making of an application to contest an election does not affect any right or obligation of a candidate in that election (s 522).

(1) The Act conternplates parallel criminal and civil processes 1209 Page: 21

[49] The respondent :rvt:Ps contended initially that criminal investigations and controverted validity applications in relation to an election should proceed sequentially, with Part 19 procedures being completed :first and then Part 20 procedures begun. Parliament intended, they argued, that annulment under Part 20 should be a last resort when there has been wrongdoing in the course of an election. To address the strict time limitation on the bringing of an annulment application imposed by the statute, they suggested that the Court could impose a stay pending the outcome ofthe investigation and the prosecution, if any, that rnight follow within the statutory limitation period set out in s 514. That is 5 years from the day on which the Commissioner became aware of the :facts giving rise to the prosecution but, in any case, not later than 10 years after the day on which the offence was committed.

[50] I agree with the Chief Electoral Officer that the Act contemplates that applications to annul an election may be brought at the same time as an investigation into possible violations of the Act is conducted by the Commissioner. This conclusion is supported by the time limit imposed for bringing a civil application, the requirement, in s 525(3), that such applications shall be dealt with summarily and without delay and the lengthy limitation period for prosecutions provided for in s 514. It is also consistent with the objective of ensuring the integrity of the electoral process when the results are found to have been a:ffected by the conduct descnbed in s

524. At the conclusion of the hearing, the respondent :rvt:Ps conceded that this interpretation was correct.

(2) The test, burden and standard ofproof for invalidity 1210 Page: 22

[51] Section 524 allows an elector or candidate to make an application to a court contesting an election on the grmmds that the elected candidate was not eligible or that irregularities, fraud, or corrupt or illegal practices bad a:ffected the result of the election. An election cannat be contested on the same grounds as those for which a recount may be requested.

[52] Section 524 reads as follows:

524. (1) Any elector who was 524. (1) Tout électeur qui était eligtb le to vote in an electoral habile à voter dans une district, and any candidate in circonscription et tout candidat an electoral district, may, by dans celle-ci peuvent, par application to a competent requête, contester devant le court, contest the election in tribunal compétent l'élection that electoral district on the qui y a été tenue pour les grounds that motifS suivants :

(a) under section 65 the a) inéligibilité du candidat elected candidate was not élu au titre de l'article 65; eligtb le to be a candidate; or

( b) the re were b) irrégularité, fraude, irregularities, fraud or manoeuvre frauduleuse ou corrupt or illegal practices acte illégal ayant influé sur that affected the result of le résultat de l'élection. the election.

(2) An application may not be (2) La contestation ne peut made on the grounds for which être fondée sur les motifS a recount may be requested prévus au paragraphe 301(2) under subsection 301(2). pour un dépouillement judiciaire. 1211 Page: 23

[53] The remedy the court may provide is in s 531(2):

(2) After hearing the (2) Au terme de l'audition, il application, the court may peut rejeter la requête; si les dismiss it if the grounds motifS sont établis et selon referred to in paragraph qu'il s'agit d'une requête 524(1)(a) or (b), as the case fondée sur les alinéas 524(1)a) may be, are not established ou b), il doit constater la and, where they are nullité de l'élection du established, shall declare the candidat ou il peut prononcer election null and void or may son annulation. annul the election, respectively. [Je souligne]

[My emphasis]

[54] The Supreme Court determined, at paras 20-22 of Opitz, that the use of the word

''respectively" means that where the grounds in s 524(1)(a) are established, a court must declare the election null and void; where the grounds in s. 524(1)(b) are established, a court may annul the election. Under the latter circumstances, the court must decide whether the election held was compromised in such a way as to justifY its annulment.

[55] The use of "established" in s 531 (2) places the burden on the applicant throughout. The applicable standard of pro Of is the civil standard of pro of on a balance of probabilities. The applicants must establish that electoral fraud occurred and that the results of the election were a:ffected (Opitz paras 52-53). In the present case, the applicants must establish that in each ofthe subject ridings there was at !east one elector in each riding who did not vote as a result of the fraud.

[56] Among the other princip les that I must keep in mind in assessing the degree of compromise to an election result are the following: annulling an election would disenfranchise 1212 Page: 24 every elector who voted in the riding; the reparative measure that voters will have the opportunity to vote in a by-election is not a perfect answer for a number of reasons; permitting elections to be lightly overturned would increase the likelihood ofpost-election litigation;· and a declaration that an election is annulled may be considered the ultimate public consequence of ::J c violating provisions ofthe Act and accordingly should be reserved for serious cases (Opitz paras cu ~ LO N 48, 49 and 70). LO ü u.. (") .,.- 0 N [57] This is not a case about "irregularities" in the electoral process impugning sorne of the votes cast, as addressed in Opitz. The objection to the election of the respondent MPs in this instance is based on allegations of"fraud or corrupt or illegal practices that a:ffected the result of the election" made against a persan or persans unknown. As the Supreme Court noted in raising the bar for irregularities by analogy to the other language used in s 524, these are very serious matters. Where they occur, the electoral process will be corroded ( Opitz, para 43).

[58] Examples of"corrupt practices" and "illegal practices" are given in the statute but no formai definition ofthese terms or of''fraud" is provided. There are a number ofPart 19 provisions dealing with o:ffences that would constitute fraud or corrupt or illegal practices, such as wilfully preventing or endeavouring to prevent an elector from voting (ss 281 (g) and

491(3)(d)), and inducing a persan by pretence of contrivance to vote or refrain from voting orto vote or refrain from voting for a particular candidate in an election (s 482(b )). The Act also creates o:ffences that may apply to the actions of candidates and their official agents under the heading of"illegal and corrupt practices" in s 502, which may also full within the scope ofs 524. 1213 Page:25

[59] While the commission ofthese Part 19 offences may constitute electoral fraud or corrupt or illegal practices for the purposes of s 524, the construction ofthose tenns in s 524 is not limited to the scope ofthose offences. There is no indication in the Act that such was the intent of Parliament.

[60] As stated at paragraph 36 of the majority's reasons in Opitz, ''the words of an Act are to be read in their "entire context and in their grammatical and ordinary sense harmoniously with the scheme ofthe Act, the object of the Act, and the intention ofParliament": Bell ExpressVu

Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 SCR 559, at para. 26, citing E. A. Driedger,

Construction ofStatutes (2nd ed. 1983), at p. 87.") Protecting the integrity ofthe democratie process is a central purpose of the Act in order to ensure the constitutional right to vote and the enfranchising purpose of the statute. In the context of s 524, 'ii"aud", "corrupt practices" or

"illegal practices" should therefore be defined in their ordinary and grammatical sense employing the dictionary definitions of the words to serve that purpose.

(3) The meaning of'ii"aud" in s 524(1)

[61] In the course of argument, counsel drew my attention to statements by an official before the Senate Cornmittee on Legal and Constitutional Aflàirs when Bill C-2, the proposed new

Canada Elections Act, was before Parliament in April 2000. The statement was to the effect that the intent of the Government was to adopta meaning of'ii"aud" which corresponded to the meaning in the criminal context: testimony of Mr. Michael Peirce, Counse~ Director, Legal

Operations, Legislation and House Planning, Privy Council Office, in Senate of Canada, 1214

Page: 26

Proceedings of the Standing Senate Committee on Legal and Constitutional Alfairs (5 April

2000).

[62] While such statements are ofassistance in understanding the intent ofthe proponents ofa legislative measure, they do not determine the parliamentary intent. Applying the ordinary dictionary definition of the word, :fraud is 1) the action or an instance of deceiving someone in order to make money or obtain an advantage illegally, 2) a person or thing that is not what it is claimed or expected to be, 3) a dishonest trick or stratagem: Concise Canadian Oxford

Dictionary, 2005 ed, sub verbo '':fraud".

[63] The concept of:fraud invalidating transactions of a civil nature has a long history in the common law. In civil law, :fraud is a knowing misrepresentation of the truth or concealment of a material :fact giving rise to a claim of damages for the loss sustained or the avoidance of a contract: Bryan A Garner, ed, Black's Law Dictionary, 7th ed (StPau~ Minnesota: West Group,

1999).

[64] As discussed by Justice Lederer at para 47 of Wrzesnewskyj, above:

Fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or :false." (see: Derry v. Peek, [1886-1890] Ali E.R Rep. 1 (H.L.); adopted in Vale v. Sun Life Assurance Co. of Canada, [1998] O.J. No. 6465 at para. 18 (Gen. Div.) (QL); and, Gregory v. Jolley, [2001] O.J. No. 2313 at para. 15 (C.A.) (QL); as quoted in Canada v. Granitile Inc., 2008 CanLTI 63568 (Ont. Sup. Ct. J.) at para. 286). 1215

Page: 27

[65] In the context ofthe Act as a whole, the object of the Act and the ordinary and gramatical meaning offraud, it is sufficient to show that a :false representation bas been made in an attempt to prevent electors from exercising the ir right to vote for the candidate of their choice: Friesen v

Hammell, 1999 BCCA 23 at para 75.

[66] The respondent :rv1Ps contend that if the acts alleged to be contrary to s 524 also constitute offences Wlder the Act, they must be proven to the standard ofbeyond a reasonable doubt. In making that argument counsel for the respondent :rv1Ps relied upon jurisprudence Wlder the old

Dominion ControvertedElections Act. That statute, as I noted above, is of little assistance in interpreting the modem legislation as the civil consequences of a violation, such as annuhnent, flowed from the conviction of the perpetrator. It was, therefore, necessary to first establish the guiit of an individual on the criminal law standard. That is no longer the case as I read s 524 and the related provisions in Part 20. Authorship ofthe fraud and the guilt ofany person orpersons are not material. What is relevant is the :fact of the fraud and the e:ffect it had on the outcome.

[67] As discussed by Justice Lederer at para 53 of Wrzesnewskyj:

In the present case, there is no charge; no one is at risk of any penalty being imposed as a result of any :finding that may be made; nor has anyone been convicted of any oflènce Wlder the Canada Elections Act. [... ] In Johnson v. Yake, the election was declared void because the two individuals were folllld guilty of such offences. The :finding of guiit was ~' ... the most important point ... " ... [... ] Under s. 51 of the legislation applicable in that case, a candidate's election would be void if it was folllld that any corrupt or illegal practice bad qeen committed by the candidate and/or his agent. The offences charged would have to be proven beyond a reasonable doubt, but the voiding of the election flowed automatically from the convictions. 1216 Page: 28

[68] A :finding of guilt is no longer "the most important point''. The Québec Court of Appeal

reached a similar conclusion in interpreting the provisions of the Québec Election Act, RSQ, cE-

3.3. In Pellerin v Thérien, 1997 Carswell Que 214, 148 DLR (4th) 255, [1997] RJQ 816 (CA), the

appellant challenged the constitutionality ofs 465 ofthat Election Act, which stipulates that the

standard of proof in civil matters applies in an application to oppose an election. The appellant

contended that a declaration of annulment of an election could result in the suspension of his political rights, a sanction he characterized as penal and thus requiring pro of beyond a reasonable

doubt. The Court of Appeal disagreed, holding at paragraphs 118-119 that the two aspects of control over elections are distinct and require the application of different substantive princip les

and rules of evidence. In particular, the fact that a breach of the statute might result in the

invalidity of an election did not require the application of the criminal standard of proo:E

[69] I agree with the submission of the Chief Electoral O:fficer that any action or instance meeting the dictionary definition of :fraud would constitute electoral :fraud where it was done in contravention of a provision of the Canada Elections Act or where it served to defeat a process provided for in that Act. It seems tome to be clear that dehberately misinfurming electors about their polling location would thus be :fraud within the rneaning of s 524 and is provable on the civil standard.

[70] I also accept the submissions of the applicants and the Chief Electoral O:fficer that in considering whether the integrity of the electoral pro cess has been compromised, the CoUrt may take into account admissible evidence which shows that the :fraud was of a broader scope than the manifestations of it which occurred in a single district that is the subject of an application 1217

Page: 29

That is of relevance in these proceedings because of the evidence of fraud occurring in the

Guelph· district.

(4) " ... that a:ffected the re suit of the Election."

[71] This phrase speaks to the election results as a whole in each district. It is not necessary that the fraud or corrupt or illegal practice a:ffected the vote of the elector or candidate who brings an annulment application. But it does require that one or more votes were improperly cast or denied in the district where the application is brought and that this had an e:flèct on the outcome in that riding.

[72] As the majority in Opitz observed at paragraph 25, "a:ffected the result" includes a situation where a person entitled to vote was improperly prevented from doing so. In an election marred by procedural irregularities or electoral fraud, even one invalid or suppressed vote could in princip le affect the result. But would it justify. annulment?

[73] In Opitz, at paragraph 61, the Supreme Court noted that an applicant who has led evidence from which an irregularity could be found will have met his or her prima facie evidentiary burden. At that point, the respondent runs the risk of having the votes in issue set aside, unless he or she can adduce or point to evidence from which it may reasonably be inferred that no irregularity occurred, or that despite the irregularity, the votes in question were nevertheless valid. The applicants rely on this to assert that they need only raise a prima facie 1218 Page: 30 case of:fraud from which an inference may be drawn that the results were affected and that, having clone so, the burden ofproofthen shifts to the respondents.

[7 4] The Supreme Court' s reference to a prima fa cie case arose in the specifie context where the applicant could not directly prove that a non-entitled person voted. The Court recognized that primafacie proofthat an irregularity occurred may be sufficient to permit the necessary :fàctual inferences to be drawn to meet the civil standard of proof. In tho se circumstances, the respondent bears the risk of annulment if it can not be established that an ineligible vote was not cast or that it did not affect the results. Absent a statutory direction to the contrary, which is not present here, the burden of pro of never shifts to the responding party and the standard remains that of the balance of probabilities: FH v McDougall, 2008 SCC 53 at para 40.

[75] In Opitz, the Supreme Court used the "magic number" test to determine whether the application judge should have annulled the result. The test was explained at paras 71-73:

71 To date, the only approach taken by Canadian courts in assessing contested election applications has been the ''magic number" test referred to in O'Brien (p. 93). On this test, the election must be annulled if the rejected votes are equal to or outnumber the winner's plurality (Blanchard, at p. 320). ·72 The ''magic number" test is simple. However, it inherently :fàvours the challenger. It assumes that ali of the rejected votes were cast for the successful candidate. In reality, this is highly improbable. However, no alternative test has been developed. No evidence has been presented in this case to support any form of statistical test that would be reliable and that would not compromise the secrecy of the ballot. 73 Accordingly, for the purposes of this application, we would utilize the magic mnnber test. The election should be annulled when the number of rejected votes is equal to or greater than the successful candidate's margin ofvictory. However, we do not rule out the possibility that another, more realistic rnethod for assessing 1219 Page: 31

contested election applications might be adopted by a court in a future case.

[76] The majority acknowledged, at para 73, " ...that another, more realistic method for assessing contested election applications might be adopted by a court in a future case." The

Supreme Court thus left open the question of whether irregularities could be such as to call into question the integrity of the electoral process. That conclusion may be reached more easily, I expect, where the ground cited for annulment is not irregularities at the ballot box but electoral fraud, corruption or illegality.

[77] The Chief Electoral Officer submitted that the Court might consider what it termed a

''reverse magic number test" - where the number ofindividuals who were prevented from voting as a result of the :fraud exceeds the margin of victory of the successful candidate - to determine whether the results of the vote was affected in each riding. The ''reverse magic number test'' has the same inherent bias descnbed by the Supreme Court at para 74 of Opitz; it assumes that the individuals who did not vote would ail have voted identically, which in the reverse test would mean not voting for the successful candidate. In this context it bears the added complication that the suppressed votes may have been cast for severa} unsuccessful candidates. There is no assurance that the second-place :finisher would have been successful.

[78] The applicants contend that the Court may annul the election either where the number of impugned votes is su:fficient to cast doubt upon the true winner or where the :fraudulent activities are such as to call into question the integrity of the electoral pro cess. They argue that the election 1220 Page: 32 may be annulled if fraud casts doubt on its integrity even if the fraud does not raise doubts as to the true winner, relying on the Supreme Court's comments at paragraph 43 of Opitz:

The common thread between the words "irregularities, fraud or corrupt or illegal practices" is the seriousness ofthe conduct and its impact on the integrity ofthe electoral process. Fraud, corruption and illegal practices are serious. Where they occur, the ...... electoral process will be corroded. In associating the word "irregularity" with those :J c words, Parliament must have contemplated mistakes and administrative errors that are (tl 8 serious and capable of undermining the integrity of the electoral pro cess. (See Cusimano LO N v. Toronto (City), 2011 ONSC 7271, 287 O.A.C. 355, at para. 62.) LO ü LI... ..-('1) 0 [79] The assessment ofwhether the impact offraud a:ffecting the result ofthe election is N sufficient to warrant annulling the election result falls within the application of the judge's discretion under s 531. Ifthe number ofsuppressed votes is sufficient to cast doubt on the true winner, the Court has an easier task. Absent a clear finding to that e:ffect, the more di:fficult question is whether the fraud, corrupt or illegal practice, if proven, was su:fficiently serious to call the integrity of the election process into question.

[80] The applicants cite American jurisprudence for the notion that election results may be overtumed where fraud has a:ffected the integrity of the election regardless of whether there is evidence of the number of votes a:ffected. The American cases point to the di:fficulty in each instance of establishing how votes would have been cast if the election had not been overshadowed by irregularities or electoral fraud. But in each case it was found to matter whether doubt had been cast on the outcome even if the contestants could not prove that they would have been elected but for the fraud or irregularity: Penta v City of Revere, 8 Mass L Rep

106 at fu 20 (Mass Super Ct 1997), 1997 Mass Super LEXIS 62; Gooch v Hendrix, 851 P 2d

1321 at p 1331 (Cal Sup Ct 1993), 1993 Cal LEXIS 2497; Valence v Rosiere, 675 So 2d 1138 at p 1139 (La CtApp 5th Ct 1996), 1996 La App LEXIS 953; Marks v Stinson, 19 F 3d 873 (3d Cir 1221 Page: 33

1994) at p 886, 1994 US App LEXIS 4602; Bell v Southwell, 376 F 2d 659 (5th Cir 1967) at pp

662, 664, 1967 US App LEXIS 6731.

[81] What may constitute a corrosive e:ffect on the integrity of the electoral pro cess will depend on the :fàcts of each case. I do not read the comments of the majority in paragraph 43 of

Opitz as providing authority for the proposition that the Court may overttnn election results in every case in which electoral fraud, corruption or illegal practices have been demonstrated. In that paragraph, the Supreme Court cited Cusimano v Toronto (City), 2011 ONSC 7271, [2011]

OJ No 5986 (QL) at para 62: "An election will only be set aside where the irregularity either violates a :fi.mdamental democratie princip le or calls into question whether the tabulated vote actually reflects the will of the electorate."

[82] At paragraph 48 of Opitz, the majority cautioned that annulling an election would disenfranchise not only tho se persans whose votes were disquali:fied (in the context of an irregularities case) but every elector who voted in the riding. That suggests, in my view, that the

Court should only exercise its discretion to annul when there is serious reason to believe that the results would have been different but for the fraud or when an electoral candidate or agent is directly invo lved in the fraud.

[83] In summary, there are three steps required to annul under the Act in the context of the vote suppression allegations before the Court. The applicants must first demonstrate one of the four circumstances in s 524(1)(b): irregularities, fraud, corrupt practices, or illegal practices.

Once the first step bas been achieved, if even a single vote is shawn to not have been cast due to 1222 Page: 34 one ofthe four above circœnstances in a subject riding, the Court acquires the discretionary power to annul the results in that district under 531(2). The third step is for the Court to consider either the "magic nurnber" test (explained in Opitz at paras 71-72) or another appropriate test

(envisaged by Opitz at para 73) and decide whether to exercise its discretionary power.

(5) When Must an Application to Annul be Made?

[84] The time lirnit for making an application is set out in s 527;

527. An application based on a 527. La requête en contestation ground set out in paragraph fondée sur l'alinéa 524(1)b) 524(1)(b) must be filed within doit être présentée dans les 30 days after the later of trente jours suivant la date de la publication dans la Gazette (a) the day on which the result du Canada du résultat de of the contested election is l'élection contestée ou, si elle published in the Canada est postérieure, la date à Gazette, and laquelle le requérant a appris, ou aurait dû savoir, que les (b) the day on which the irrégularité, fraude, manoeuvre applicant first knew or should frauduleuse ou acte illégal have known of the occurrence allégués ont été commis. ofthe alleged irregularity, fraud, corrupt practice or [Je souligne] illegal practice.

[Emphasis added]

[85] Pursuant to s 526 (1) of the Act, applications. must be accompanied by security for costs in the amount of$1,000, and must be served on the Attorney General of Canada, the Chief

Electoral O:fficer, the returning o:fficer ofthe electoral district in question and all the candidates in that electoral district. The Act is silent as to whether service must be effected prior to filing 1223 Page: 35 but the usual practice is for originating notices to be :filed :first and served later. Rule 304 of the

Federal Courts Rules provides that an originating notice of application must be served on the respondents and proof of service :filed within ten days of issuance of the notice.

[86] There does not appear to be any jurisprudence on the meaning and effect ofthe requirement under this Act that security for costs accompany the application. It was in the predecessor legislation and dates back for many years. The object of a similar provision, of equal long-standing, in s 60 of the Patent Act, is to deter irresponsible invalidation actions: Apotex !ne v Hoffman-La Roche Ltd, [1980] 2 FC 586 at para 28. The amount, $1000, was no doubt a significant deterrent in 1900 but is clearly inadequate to serve that purpose to-day. Where the plaintiff bas :fàiled to make payment in proceedings under the Patent Act, the Court bas been prepared to relieve against the infraction: TevaCanadaLtdv OS! Pharmaceuticals, !ne, [2012]

FCJ No 1670 (QL) at para 21. Similarly, I find that a defect under this Act may be cured by payment into court subsequent to the :filing of the application. It is not a ground for dismissing the application at this stage of the proceeding.

[87] The time-limit in s 527 is mandatory. The Act does not allow for the exercise of discretion by the Court to extend the time within whicb an application may be brought. This was also the rule for the similar provision in the predecessor legislation, s 12 ofthe Dominion

ControvertedElections Act: Money v Rankin, [1909] OJNo 75 (QL) (HCJ) at paras 9-10.

[88] Parliament's intent appears to be that sucb applications sbould be brought and dealt with without delay. The respondent lviPs and the Chief Electoral O:fficer observe that the Act 1224 Page:36 contemplates the :filing of applications on the basis ofmere allegations before they can be substantiated, in arder to meet the limitation period. This may have the undesirable efièct of encouraging litigation that is not well-founded but such applications may, of course, be withdrawn if evidence to support them is not uncovered.

[89] Where 527(a) does not apply, as here, the thirty day limit begins to run only when the occurrence was discovered or was reasonably discoverable in the circurnstances. There is no outside tirne-lirnit in the Act for bringing an application on :freshly discovered grounds, other than that presumably imposed by the Parliamentary term as the matter would then become rnoot when another election was convened.

[90] In interpreting s 527(b), the Court should seek to find a balance between the objective of discouraging untimely applications that have no prospect of success and those that address serious concerns with the integrity of the electoral process.

(6) Section 527, ''knew br should have known"

[91] The legislation leaves the door open for an application that is brought within thirty days of the day when the elector or candidate ''knew or should have known" of the occurrence (in

French, "a appris, ou aurait dû savoir"). The language ''knew or should have known" allows for sorne fleXIbility in determining on the evidence when the applicant had actual or nnputed knowledge of the occurrence sufficient to start the 30 day deadline running. 1225 Page: 37

[92] The :first part of the phrase "knew or should have known'' refers to actual knowledge on the part of the applicant. The words "or should have known" impose an objective standard.

Prothonotary Milczynski descnbed that aspect of the test in Bielli, supra, at para 22:

What an applicant "should have known" is a :factual inquiry, guided by the princip les developed in the case law with respect to discoverability and the reasonable inferences that can be drawn from the :facts and smTounding circumstances of a particular case. lt is not a determination based on the subjective or individual perception or experience, but what is reasonable to conclude regarding what a person ought to have known in the circumstances.

[93] lt is a question of:fact for the court to determine whether an applicant knew or should have known ofthe event earlier and brought the application in a more timely manner.

[94] Having set out the legal :framework that governs this decision, 1 will now turn to the issues in this case beginning with the motions that remained outstanding at the start of the hearing.

IV. Analysis

A. Preliminary motions

(1) Was there maintenance and champerty by the Council of Canadians?

[95] At cornmon law, maintenance is the promotion or support of contentious legal proceedings by a stranger who bas no direct concem in the proceedings. lt consists, usually, m 1226 Page: 38

:financial assistance to bear the who le or part of the cost of the action or in saving a litigant expenses that might otherwise be incurred. Champerty is an aggravated form of maintenance m unlawfully maintaining an action in consideration of an agreement to receive part of anything that may be gained as a result of the proceedings, or sorne other profit: Woroniuk v Woroniuk,

[1977] OJNo 2424 (QL) (SCO) at para 9, citing Fleming, Law of Torts, 3rd ed., pp. 592-3.

[96] The concept of maintenance and champerty has been preserved in sorne provincial legislation (AnAet respeeting Champerty, RSO 1897, c 327) and remains an active common law doctrine in sorne provinces and in Federal Court practice: see for example, Fredriekson v

Insuranee Corporation of British Columbia, [1986] BCJ No 366 (QL); Ernst & Young !ne v

Chartis Insuranee Co ofCanada, 2012 ONSC 5020 at para 146; Taean v Canada, 2003 FC 915 at paras 6-11.

[97] Where the concept remains alive, two requirements are necessary. The first is that the party must have an "improper motive" in maintaining the action. The second is that the plaintiff must be otherwise not disposed to enforce its legal rights against the defendant, but for the

"officious intermeddling" of the maintainer: Melntyre Estate et al v Ontario (Attorney General)

(2002), 61 0 R (3d) 257 (CA) [Melntyre Estate ]; Buday et al v Loeator ofMissing Heirs Ine

(1993), 16 OR (3d) 257 (CA); Stetson Oil & Gas Ltdv Thomas Weisel Partners Canadalne,

[2009] OJNo 1264 (QL) (SCJ).

[98] The respondent MPs' motion alleged that the applicants in this case were enlisted to serve as surrogates for the Council, an organization said to have a long-standing animus against the 1227 Page: 39

Conservative Party of Canada. They asserted that the Cotmcil was pro:fiting by these applications

in that it was conducting fund-raising activities in support ofthe applicants and bene:fited from

the increased profile that it had gained from this case.

[99] The respondent :MPs claim that the Cotmcil bas an advantage as it is not subject to the

rules on political party :financing. While that may be true, the applicants reply, the Cotmcil is not

a registered charity and contributions in its bands are fully taxed whereas contributions to the

Conservative Party, which may be used to pay the respondent :MPs' costs for this Iitigation, are

subsidized by as much as 75% by the taxpayer (Inca me Tax Act, RSC 1985, c 1 (5th Supp), s

127(3); Canada Elections Act, s 438(3)).

[1 00] In support of the motion, the respondent :MPs :filed the affidavit of Peter J. Henein, a

lawyer with the finn that is counsel to the respondent :MPs in these proceedings, to which were

attached 84 exlubits consisting of sorne 700 pages of documentary material taken from the

Cotmcil's website, news reports, press releases and other sources. Much of the content of the

118 paragraphs of the affidavit consists of statements alleging political motivations on the part of

Maude Barlow, the Cotmcil's National Chairperson, and Steven Shrybman, counsel for the

applicants in these proceedings and of record for the Cotmcil in other proceedings. It is alleged,

among ether things, that the Iitigation in this case was motivated by animus against Prime

Minister Stephen Harper and the Conservative Party of Canada and that the Cotmcil was closely

associated with the New Democratie Party and labour unions.

(a) Is Mr. Henein's affidavit admissible? 1228 Page: 40

[101] As noted above, a motion was brought by the applicants to strike the Henein affidavit on the grmmd that it was contrary to Rule 82 of the Federal Courts Rules. The motion to strike was withdrawn without prejudice to the applicants' right to impugn the evidence at the hearing.

[1 02] Rule 82 pro vides as follows:

82. Except with leave of the 82. Sauf avec l'autorisation de Court, a solicitor shall not both la Cour, un avocat ne peut à la depose to an affidavit and fois être l'auteur d'un affidavit present argument to the Court et présenter à la Cour des based on that affidavit. arguments fondés sur cet affidavit.

[103] The Rule has been applied not just to counsel ofrecord but also to members ofthe same law finn that represents one of the parties before the Court: Addo v OT Africa Line, 2006 FC

1099.

[1 04] In applying the Rule, the Court may accept an affidavit from a member of the finn of solicitors representing a party on a motion where the affidavit is restricted to non-controversial matters such as the furnishing of undisputed documents or the recitation of undisputed :facts.

However, where such affidavits go :further and include matters that are disputed or controversial or are expressions of opinion or state of mind, the Court will be reluctant to accept or give weight to such evidence: AB Hassle v A potex !ne, 2008 FC 184 at para 46.

[105] As discussed by Stratas JA in Pluri Vox Media Corp v Canada, 2012 FCA 18 at paras 3 to 13, the purpose ofRule 82 is to prevent, as much as possible, ''the invidious circumstances that can arise when lawyers act as both witnesses and advocates in the same matter" (para 3). In 1229 Page: 41 that case, the affidavit was admitted given the uncontroversial nature ofthe exlnbits and their minimal importance to the motion. That is not the case here. Mr. Henein's affidavit goes directly to the substance of the motion and to the merits ofthe applications.

[1 06] The Court may have been inclined to overlook the Rule 82 difficulty with Mr. Henein's affidavit had it been confined to the facts supporting the motion. The purpose of an affidavit is to adduce facts relevant to the dispute without gloss or explanation: Canada (Attorney General) v

Quadrini, 2010 FCA 47 at para 18. However, the Henein affidavit is replete with statements of opinion, argumentation, allegations against opposing counsel and conclusions of law on the very issues which are before the Court for determination.

[107] The usual remedy for an affidavit that contains portions that are tendentious, opinionated and argumentative is to strike out those portions upon a motion prior to the hearing: Deigan v

Canada (1996), 206 NR 195 (FCA). Where the arguments and conclusions oflaw are unseverable the entire affidavit should be struck: Duyvenbode v Canada, 2009 FCA 120. That was not done in this case due to the pre-hearing arrangement between the parties not to cross- examine each others' deponents and withdrawal ofthe motion to strike the Henein affidavit. But in my view the content of the affidavit, other than as a vehicle to introduce the exlnbits, was improper and I will exercise my discretion to give it no weight or probative value. The exlnbits remain part of the record.

(b) Conclusion on maintenance and champerty 1230 Page: 42

[1 08] There is no maintenance if the alleged maintainer bad a legitimate motive and was not

acting maliciously: Adi v Datta, 2011 ONSC 2496 at para 54. The respondents allege that the

Council's motive in providing :financial assistance to the applicants is to attack the Conservative

Party ofCanada and the Government ofPrime Minister Stephen Harper. ::::i c ro 8 1.0 N [1 09] It appears from the record, including certain of the exlubits attached to the Henein 1.0 ü LL affidavit, that throughout its existence, the Council bas been a consistent critic of government .,...(0 0 N actions whatever party was in office. I was taken to severa! examples where the Council bad

unkind things to say about the former Liberal Government. I was not therefore, convinced that

the Council's motivations in indemnifying the applicants against costs in this case were driven

by a particular animus against the current Prime Minister and his party, as opposed to the broader

public interest in clean elections.

[110] Even if the Council's motives in supporting the applications were politically partisan they would not be grounds for dismissal ofthese applications. At best, while I consider it

doubtful, the allegations might support an independent cause of action against the Council by the respondent MPs: Kroeker v Harkema Express Lines Ltd (1973), 2 OR (2d) 210 (H Ct J) at para 5,

citing Skelton v Baxter, [1916] 1 KB 321 at p 326 (CA). They do not constitute eligible grounds under s 531(1) of the Act (''vexatious, frivolous, or not made in good faith") which refer to the motives ofthe applicants themselves. Their motives have not been impugned in these proceedings. Therefore, even if the conduct ofthe Council was seen to be "officious intermeddling" to the degree that it may be actionable, the Court would have no jurisdiction to dismiss these applications. 123.1 Page:43

[111] As a general rule, the Courts will not concem themselves with how a lawsuit is :fi.mded:

Jacobi v Newell, [1992] AJ No 1087 (QB) (QL). Maintenance and charnperty may still have

sorne relevance to-day in the context of disputes between private parties over contractual

arrangements and property rights. The concepts are inconsistent, in my view, with the recognition in modem society of the role of non-govemmental organizations in facilita ting access to justice and the validity of alternative arrangements for :fi.mding Iitigation, such as

contingency fees: Mclntyre Estate, above. The costs of litigating, particularly when :facing well- resourced respondents, are formidable.

[112] Here, the applicants have no prospect of:financial reward from these proceedings and there are issues ofbroad public interest at stake. It is doubtfùl that they would have had the financial ability to bring these applications on their own without support from sorne agency. The ability of citizens to bring matters before the courts in the public interest should not be deterred:

Re Lavigne and Ontario Public Service Employees Union et al (No. 2), [1987] OJNo 653 (QL)

(HCJ) [Lavigne] at para 106, rev'd but a:ff'd asto costs [1989] OJNo 95 (CA) (QL) at paras 100-

107, appealjudgment a:ff'd [1991] 2 SCR211.

[113] There is no evidence that the applicants acted for any reason other than to assert their rights to a fair election as Canadian citizens and electors.

[114] The :fi.mdamental aim of the law of charnperty has always been to protect the administration of justice from abuse. It is not an abuse of the Court's process for an elector, with or without the support of a non-govemmental organization, to bring an application to contest an 1232 Page: 44

election where there is evidence of an attempt to affect the results of that election through fraud.

This is particularly true where the right to bring the application arises by statute and does not

:find its basis in any agreement with the third party: Sv K (1986), 55 OR (2d) 111 (Ont District

Ct). :::i c sCil 1..') N [115] Thus, even had I accepted the Henein affidavit as admissible and ofprobative value, I 1.{) ü 1..1.. would dismiss the motion to strike the applications on the ground of champerty. The motion was, .....(") 0 N in my view, an attempt to derail these applications before they could be heard and determined on the merits and was brought without justification.

(2) Are the Applications Statute-Barred?

[116] The Election was held on May 2, 2011. The Election results for the ridings in question were published in the Canada Gazette between May 17,2011 and May 26,2011

[117] The applications were :filed on March 23, 2012 [Burkhart (Saskatoon-Rosetown-Biggar),

Reid (Ehnwood-Tran$cona), McEwing and Kerr (Winnipeg South Centre), and Ferance and

Walsh Craig (Nipissing-Timiskaming)] and March 26, 2012 [Kafka (Vancouver Island North), and Parlee (Yukon)]. The respondent MPs submit that they are out oftime as they were not :filed within 30 days of the date on which the applicants knew or ought to have known ofthe occurrence of the fraud or the corrupt or illegal practice relating to the telephone calls. Even if the applicants did not know ofthese until the media reports appeared in February 2012, by the respondent MPs' calculation they still missed the 30 day limitation period, in part because 2012 was a leap year. 1233 Page: 45

[118] The respondent :rv1Ps argue also that because the applications were not initially accompanied by the security for costs required by the statute they did not become complete tmtil those sums were paid, afl:er the 30 days were up, and thus were not "filed" within time. As noted above, 1 find that the Court can relieve against any such :fàilure to make payment and in the present case 1 consider any delay in that respect to have been cured.

[119] The applicants' evidence is that while they knew ofthe calls they had received on or before May 2, 2011, they did not suspect that the calls were attempts to mislead them tmtil the story ofthe investigation broke in the national media on and afl:er February 22, 2012. There is evidence that the CBC reported that Elections Canada was warning voters to ignore :fàlse information about polling station changes before the polis opened on May 2, 2011 and evidence of severa! media reports after the Election. The evidence does not establish how widely tho se reports were disseminated, how often they were repeated by media outlets or whether they were published by local news media. There is no evidence that the applicants saw or heard any of these early news reports.

[120] The applicants say that they did not know that the calls they received were not from

Elections Canada or candidates at the time they were received. They did not discover that the calls were :fàlse and maliciously motivated tmtil: in the case ofthe applicants Ferance, Walsh

Craig, Kafka, and McEwing, Iate F ebruary 2012, and for Parlee, Reid, and Kerr, early March

2012. Kay Burkhart, applicant in the district ofSaskatoon-Rosetown-Biggar, is silent on when she became aware of the occurrence. Supporting affidavits from Gail Nardi (Yukon) and

Christopher Lanctot (Saskatoon-Rosetown-Biggar) also state that they became aware ofthe 1234 Page: 46

occurrence in early March. As none of the applicants and supporting electors were cross-

examined on their affidavits this evidence rernains uncontroverted.

[121] The Supreme Court expressed the concem in Opitz, at para 56, that Part 20 of the Act"... should not be taken by losing candidates as an invitation to examine the election records ... in the hopes of getting a second chance". This is not such a case. These applications do not constitute an abuse of s 524. They are brought out of legitimate concerns that the electoral pro cess was violated by persons seeking to suppress the applicants' votes.

[122] The respondent MPs rely on Hilton v Norgaard, [1992] BCJ No 1742 (QL) (SC). In that case, severa! town council members sought the disqualification ofthè mayor on confl.ict of interest grounds. The council members had been aware ofthe grounds for the application for sorne considerable tirne but delayed in bringing their application until they had obtained legal advice that they had sufficient information to proceed. That situation bears little resemblance to the :fàcts of this matter.

[123] In this instance, the applicants were not put on notice of the fraud by their awareness of the calls that they had received. Nor were they aware of the :fàct that tho se calls were part of an orchestrated campaign of misdirection. That :fàct was not readily discoverable by them with a reasonable exercise of diligence within thirty days of the occurrence. The applicants bore no individual responsibility to make in-depth inquiries about the calls they had received. 1235

Page: 47

[124] The Court is unable to make a finding that the applicants knew or ought to have known of the fraudulent occurrences prior to the media reports that began on or about February 22, 2012. It would have taken sorne time for those reports to be disseminated widely in Canada. There is no evidence before me that the applicants knew of the complaints that were reported in the immediate aftermath ofthe election. It is not reasonable to expect that the average Canadian elector would have understood that the calls received on or before May 2, 2011 were not from

Elections Canada until they saw the national media reports and made the connection between the calls they received and the investigations.

[125] The evidence is not clear asto precisely when the applicants became aware ofthe rnisrepresentations. Severa! of them took steps to obtain orto attempt to obtain their phone records and contacted Elections Canada to make complaints after they leamed of the news stories. This was, I infer, the result of a dawning awareness that there had been a fraudulent attempt to divert them from their proper polling station. It was only in the latter stages of this process that they realized what had occurred.

[126] I accept that strict compliance with the time limitations is required to ensure that frivolous applications to annul elections are not made as a form of entertainment. That is a concem that I think carries more weight when the grounds of invalidity are "irregularities ". This is not such a case. Where electoral fraud is alleged and substantiated, the Court should be reluctant to deny the applicants a hearing on what may appear to be a technica~ procedural ground advanced by a party that has an interest in preserving the result. 1236 Page:48

[127] If I am wrong in my assessment, I would prefer to err on the side of the applicants given the resources invested to date and the importance ofthe public interest in this case. In the circumstances, I am not prepared to find that the applicants are out oftime to bring these app licatio ns.

(3) Should the opinion evidence ofMr. Graves be struck?

[128] Mr. Graves is the founder and President ofEKOS Research Associates Inc., a public policy, survey and research :firm. Mr. Graves' evidence (the EKOS Survey) was presented as that of an expert in research methodology and design, and applied statistical analysis. He was asked to investigate three questions:

a. to what extent may certain voter suppression techniques have been used to influence the outcome ofthe 2011 election in the six ridings in question? b. did any voter suppression activities found to have taken place dehberately target electors who were supporters of a particular political party or parties? c. were any such voter suppression techniques and activities effective in discouraging those who would have otherwise voted from casting a ballot?

[129] EKOS conducted a survey between April 13 and 19, 2012 using Interactive Voice

Response (IVR) technology, which selects respondents through random digit dialing (RDD) and allows respondents to enter the ir responses through the use of the keypad on their telephones rather than speaking with an interviewer. The results ofthe survey, analysis and conclusions were presented in a report, completed on April 23, 2012 and revised on October 24, 2012, which was attached as an exlubit to Mr. Graves' affidavit and tendered as expert opinion evidence. 1237 Page: 49

[130] To be admissible, expert opinion evidence must meet the four part test set out in R v

Mohan [1994] 2 SCR9, [1994] SCJNo36 (QL) [Mohan], at para 17:

Admission of expert evidence depends on the application of the following criteria: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence ofany exclusionary rule; ( d) a properly qualified expert.

[131] The relevance and necessity ofthis evidence was clear from the outset. If admitted and given probative weight, it was capable of supporting the annulment applications. Without it, it would have been very di:fficult to determine the truth ofthe allegations. No applicable exclusionary rule that would prorubit reception ofthe evidence was drawn to my attention. The respondent :MPs's challenge was directed, rather, at the fourth point: Mr. Graves' qualifications as an expert and their allegations of partiality or bias.

[132] The respondent :MPs contested Mr. Graves' qualifications for :live reasons. They contended that: he misrepresented his expertise; he and his company are docurnented supporters ofthe Liberal Party; he bas a significant adverse relationship with the respondent :MPs' party; he bas acted as an advocate for one of the parties in the case; and he failed to disclose important facts.

[133] On the merits of the opinion, the respondent IviPs retained the services ofDr. Ruth

Corbin to provide a critical analysis ofthe EKOS Survey and Mr. Graves' evidence.·

[134] In reply, the applicants asked Mr. Michael Adams ofEnvironics, a competitor company to EK.OS, and Dr. Maria Barrados, former President of the Public Service Commission and

Assistant Auditer General of Canada to comment on Graves' reputation in his field. Mr. Adams 1238 Page: 50 deposed that Graves bad "always abided by the highest professional standards" and to his knowledge never "allowed any persona] motives or predilections to have interfered." He :further commented that ''It is not common in our industry for competitors to o:ffer testimonials to the quality of the work of other polling comparues, but I :find the attack on Mr Graves' [sic] so unfounded and irrelevant, in my view, to the substantive matters at band that I am compelled to offer a very different view of his professional integrity." Dr Barrados stated that Graves bas always, to ber knowledge, acted "with the utmost care, integrity and professionalism", never allowing his persona] views to :find their way into his work.

[135] Evidence is not normally admissible merely to bolster the credibility or professionalism of an expert witness. In this case, however, I found it admissible in light of the concerted attack on Mr. Graves' character which I ultimately concluded was unfair.

[136] Among other things, the respondent MPs argue that Mr. Graves represented himself as having a PhD, when he does not, while at the same time referring dismissively to Dr. Corbin, who does have a PhD, as Ms. Corbin in his reply affidavits. I am satisfied that Graves did not misrepresent his credentials and that any errors in that respect were those of the applicants' counsel in preparing Graves' evidence for :filing. In any event, this complaint was inconsequential and the errors were immaterial.

[137] The respondent MPs allege that Mr. Graves bas made negative public comments about the Conservative Party. He is, of course, entitled to do so as a private citizen. Sorne comments appear to have been taken out of context, such as a remark about extremists in Europe that bad 1239 Page: 51 nothing to do with the Conservative Party. The record also shows donations by Graves to Liberal

Party candidates, which, again, was within his democratie rights. The respondent l\1Ps devoted a great deal oftheir cross-examination ofMr. Graves on his affidavit evidence to exploring these matters. In my view, they did not speak directly to the question of his irnpartiality as a witness.

[138] When given an opportunity at the hearing to cross-examine on the substance of Graves' sur-rebuttal affidavit, the l\1Ps counsel persisted in focusing on the details ofthe modest contributions he had given to Liberal Party candidates. They did not dwell on the contribution he bad given to a Conservative candidate. In any event, this added nothing of value to the record that was already befure the Court I note that Graves is not alleged to have had any relationship with the Liberal candidates in the subject ridings and he does not carry out polling for political campaigns.

[139] The respondent l\1Ps also alleged that Graves bas a strong financial interest in the outcome ofthese proceedings, in that government :fi.mding for polling by his finn was eut by more than 80% when the Conservative Party formed the government. That appears, at first impression, to be significant but this work, he stated, was never a major part of his business and that assertion was not rebutted.

[140] The Supreme Court has stressed the role oftrial judges in excluding unsuitable expert witnesses: Mohan, above; R v J (J-L), 2000 SCC 51 at paras 28, 47; Dulong v Merrill Lynch

Canada Inc (2006), 80 OR (3d) 378 (SCJ) at para 9; The Federal Courts Ru/es, SOR/98-106, 1240

Page: 52

Rule 52.2, Schedule, Code ofConductfor Expert Witnesses and jurisprudence also speak to the importance of irnpartiality.

[141] The courts have drawn a distinction between the irnpartiality of the expert's testimony and the question of independence. It is not essential that the expert be independent of the party that calls the witness so long as the opinion given is impartial: Hospira Healthcare Corporation v Eli Lilly Canada !ne, 2010 FCA 282 at paras 8-9. The cases cited by the respondents all deal with the objectivity of the expert' s opinion, not activities outside the retainer such as tho se they have complained of in this instance: see for example Bank ofMontreal v Citak, [2001] OJNo

1096 (SCJ) (QL), where the expert explicitly told the Court that 11in every matter oflitigation, I always take the position of advocate for my client" (para 6).

[142] In Es-Sayyid v Canada, 2012 FCA 59 at para 43, the Federal Court of Appeal expressed grave concerns about the objectivity ofthe opinion presented because ofthe author's editorial comments which were found therein -"editorial comments [... ] using language that is gratuitous, intemperate and ideological". The type of blatant ideological bias that the Court found offensive in that opinion is not found in the present matter. Rather, Graves' opinion is expressed in cautious tenns with recognition ofthe limitations ofthe technology employed in the survey.

[143] The respondents assert that Mr. Graves claims to be an expert in fourteen di:ffererit areas, too many for true expertise, and that his comments about the Iawfulness ofthe telephone caUs usmp the role ofthe Court. I agree with the applicants that the number ofareas of expertise 1241 Page: 53 claimed is not a concem; what rnatters is expertise or Jack of it in the area in question. lt is trite law that expert witnesses should not give opinion evidence on rnatters for which they possess no special skill, knowledge or training, nor on rnatters that are commonp lace, for which no special skill, knowledge or training is required: Johnson v Milton (I'own), 2008 ONCA440 at para 50.

[144] The ''ultimate issue" rule no longer applies to exclude opinion evidence: Cooper v R,

[1980], 1 SCR 1149; Benoit v Canada, 2002 FCT 243 at para 136; Stetson Oil & Gas Ltdv Stifel

Nicolaus Canada !ne, 2013 ONSC 1300 at para 63. Graves' rernarks about the lawfulness ofthe calls are irrelevant to his :findings. They did not interfere in any way with the Court's ability to assess his methodology and decide whether his data, analysis and opinions satis:fied the applicable legal test.

[145] Comments Graves bad made on his Twitter account could, at :first impression, be construed as supporting a :finding that he bad decided on his conclusion before beginning the study. On a closer examination, 1 :find that they show him discussing whether analysis ofthe data would show a voter suppression effect, then progressing towards hoping to :find such an efièct.

Sorne of the tweets, in sequence, say for instance: ''That is why 1 don't know if it is testable and 1 am agnostic asto impacts."; "From what 1 understand so far 1 think the hypothesis of effects is testable. 1 am not sure what the results would be."; ''I think one could actually design a statistical test that would give sorne guidance on this. 1 am agnostic asto answers."; "Damn! rnaybe it wasn't the polis that were off after ali. Maybe it was the election." They gave me sorne concem but 1 was ultimately satis:fied on his evidence as a who le, particularly his acknowledgement of the 1242 Page: 54 weaknesses of the methodology that he had validly arrived at his conclusion through a genuine analysis of the data.

[146] In arriving at a conclusion on the admissibility of this evidence, I have not overlooked the

:fà.ct that Graves demonstrated a lack of common sense and respect for the Court when he testified. When asked to step outside during a discussion which the Court bad with cotmSe~ he chose to follow the live report ofthat discussion by journalists in the courtroom I have reviewed the transcript ofwhat was said during that discussion and am satisfied that it did not have a material effect on his testimony. As noted above, I was not persuaded that the line of cross- examination being pursued by cotmSel was relevant. I also recognize that Mr. Graves was given no instruction not to access the reporters' live transmission from the courtroom nor were the journalists instructed not to report what was said in his absence. N onetheless, this showed poor judgment on Mr. Graves' part for which he subsequently apologized to the Court.

[147] Having reviewed the arguments and the lengthy cross-examination ofMr. Graves in the record I was not persuaded that the respondent l\t1Ps bad made out a case that he was not qualified to carry out the survey he was retained to conduct or that his opinion re:flected partiality. The respondents have not attacked Mr. Graves's professional opinions but his persona! views and motivation in accepting the retainer. I was satisfied that he bad objectively presented the challenges and limitations ofthe survey methodology in his report. I :find that his opinion evidence meets the standard for admissibility set out in Mohan, above. Forthat reason, ldismiss the motion to disqualify Mr. Graves and strike his evidence. I will have more to say about the weight I have given his evidence below. 1243 Page: 55

B. Admissibility and weight ofthe evidence

[148] As the applicants acknowledge at the outset oftheir argument, these applications raise

difficult questions concerning how they rnight establish, and how the court is to determine, the ::::::- ::J c e:ffect of the activities carried out by those who are responsible for making the rnisleading sro LO N telephone calls. The applicants were constrained by a number of factors including tirne, LO () LL resources and the secrecy of the ballot. .,...(") 0 N

(1) Evidence ofthe applicants

[149] The affidavit evidence of each of the applicants thernselves is sirnilar. In most cases, the applicants or their spouses received a telephone cali prior to the election from someone purporting to be calling from the Conservative Party of Canada. They were asked whether the

Conservative Party could rely on their support in the election. The applicants or their spouses told the caliers that they would not be voting for the Conservative Party. Just before or on the election day, ali but one of the applicants received a second telephone cali, either live or recorded, purporting to be from Elections Canada, in which they were advised that their polling station bad changed.

[150] The calls identified an incorrect polling station location. Sorne ofthe calls were made after the applicants bad already voted. In the other cases, the applicants checked the information or knew that it was incorrect. Sirnilar evidence is provided by several other individual electors who have swom affidavits in these proceedings. 1244 Page: 56

[151] Collectively, the applicants' uncontradicted evidence is that they regarded the misdirecting calls as erroneous and only learned from the media coverage in February and March of2012 that the calls were likely part of an orchestrated campaign to suppress their votes. In no case did the calls "affect the result" for the current applicants in the sense that they were prevented from actually voting. Ms. Bielli, the applicant in the seventh and withdrawn application, had deposed that this was the effect ofthe cali she received.

(2) The ITO evidence

[152] As noted above, public disclosure ofMathews' Information to Obtain production orders in relation to the investigation into the electoral offences in Guelph is largely responsible for having alerted the applicants to the significance of the calls that they received. Subsequent!y, another nine ITOs were disclosed as the Commissioner of Canada Elections continued his investigation into the allegations ofviolations ofthe Act across the country.

[153] Efforts by the applicants to obtain evidence from the Commissioner and his staff with regard to their inquiries were met with a certificate under s 37(1) of the Canada Evidence Act asserting public interest privilege in the protection ofthe information on the ground, among others, that non-disclosure was necessary to protect the integrity of the ongoing investigations.

The ITOs became public records, with redactions, following issuance and execution ofthe production orders. 1245 Page: 57

[154] Copies of the production orders and supporting ITOs that are in the public record ofthe issuing courts were made part ofthe record in these proceedings as exlubits to affidavits. The respondent MPs agreed to the ir filing as a matter of expediency but reserved their right to abject to the relevance, admissibility and weight of the content if the records were admitted. Additional ::i c evidence of the complaints received by Elections Canada and subject to the Access to Cil 8 LO N InformationAct, RSC 1985, c A-1, was introduced through the record ofthe Chief Electoral LO ü ll.. Officer (the Babin Affidavit). ..-C") 0 N

[155] At the hearing the respondent MPs objected to any consideration being given to the content of the ITO's on the ground that much of it was irrelevant, the information was inherently untrustworthy, it constituted double hearsay and was therefore presumptively inadmissible, and the necessity of relying upon it had not been established.

[156] The information is double hearsay because much ofthe content ofthe ITOs consists of statements made by complainants and other persans interviewed to the investigators. The ITOs were attached as exlubits to the affidavits ofpersons with no persona! knowledge ofthe content and neither the complainants nor the investigators were available for cross-examination. As a general principle, affidavits (e.g., here the swom ITOs) produced as attachments to the affidavits of others are not given the same weight: 594872 Ontario !ne v Canada (1992), 55 F1R 215 (ID) at para 14; McLaughlin v. Canada (Attorney General), 2012 FC 556 at para 9.

[157] The traditional formulation of the hearsay rule is that evidence of a statement made to the recipient by a declarant who is not a witness in the proceedings is inadmissible hearsay when the 1246 Page: 58 purpose ofthe evidence is to establish the truth of the contents ofthe statement. It is not hearsay, and hence not inadmissible, where the purpose ofthe evidence is not to establish the truth of the contents of the statement, but only to prove that the statement was made. Thus much of the content ofthe ITOs and the Babin Affidavit would be admissible at common law under the traditional hearsay rule at least for the limited purpose of establishing the fact that complaints were made to Elections Canada that misleading calls had been received on election day.

[158] In R v Khan, [1990] 2 SCR 531, [1990] SCJNo 81 (QL), R v Smith, [1992] 2 SCR 915,

[1992] SCJNo 74 (QL), and R v Khelawon, 2006 SCC 57, [2006] 2 SCR 787, the Supreme

Court has simplified the law ofhearsay. Ifhearsay evidence does not fall under one ofthe established exceptions to the rule, it may still be admitted if the indicia ofreliability and necessity are established.

[159] In my view, necessity is not an obstacle to admissibility in this case given the limited sources of evidence available to the applicants and the objection raised by the Commissioner of

Elections to the examination ofhis investigators. The evidence would not otherwise be available to the Court. I am also satis:fied that the information collected by Public O:fficers employed to conduct investigations into electoral fraud and contained in their swom statements is reliable. I consider that the evidence is, therefore, admissible under the principled exception to the hearsay rule.

[160] The ITOs contain references to information received from telecommunications service providers in response to the production orders. This is information maintained in the ordinary 1241 Page: 59 course of the business ofthese corporations. The information became part of court records when produced and :filed in the form of returns in response to the production orders. There was no suggestion in these proceedings, that the information set out in the ITOs was inaccurate or unreliab le.

[161] The ITOs are also admissible, in my view, under the public documents exception to the hearsay rule. At common law, documents may be admissible on two bases, the princip led exception to the hearsay rule (Khan, above ), and by reason that the document is a public document. The principles ofnecessity and reliability underlie both: R v WBC, [2000] OJNo 397

(QL) (CA) at paragraph 30; R v Semigak, 2007 NLTD 34 at paragraph 14. Section 24 of the

Canada Evidence Act permits the introduction of copies of public documents but is not an exclusive code with respect to their admissib ility.

[162] As stated by Laskin J.A. in R v AP, [1996] OJ No 2986 (QL) (CA) at para 14:

At common law statements made in public documents are admissible as an exception to the rule against hearsay evidence. This exception is ''founded upon the belief that public o:fficers will perform their tasks properly, carefully, and honestly." Sopinka et al. The Law ofEvidence in Canada (1992), p. 231. Public documents are admissible without pro of because of the ir inherent reliability or trustworthine ss and bec a use of the inconvenience of requiring public officiais to be present in court to prove them Rand J. commented on the rationale for the public documents exception to the hearsay rule in Finestone v. The Queen (1953), 107 C.C.C. 93 at 95 (S.C.C.): The grounds for this exception to the hearsay rule are the inconvenience of the ordinary modes ofproof and the trustworthiness of the entry arising from the duty, and that they apply much more forcefully in the complex governmental functions oftoday is beyond controversy. · 1248 Page: 60

[163] The swom statements ofthe Public Officers conducting investigations on behalf ofthe

Commissioner, :filed in court in support of applications for production records, satiszy the criteria for the admissibility of public documents recognized in the jurisprudence. They were made by a public officia~ in the discharge of a public duty with the intention that it serve as a permanent record, and are available for public inspection: R v Semigak, 2007 NLID 34 at paragraph 14.

The attachments to the Babin Affidavit, consisting of information maintained by Elections

Canada, are admissible under either the public documents exception or the business records exception to the hearsay rule.

[164] The initial ITOs refer predominantly to information received from electors in Guelph and several other Ontario cities. In the ITO to obtain the 7th, gth and 9th production orders relating to the records ofthree telecommunications service providers, Investigator Mathews descnbes the trail that he had pursued in the Guelph inquiry from his first interviews with complainant electors foliowing the election in May 2011 through to identifying the source ofthe calls and the purchase ofthe automated cali services. The automated messages received foliowed the pattern below which was retained as an audio file by one of the Guelph complainants:

This is an automated message from Elections Canada. Due to a projected increase in poli tumout your voting location has been changed. Y our new voting location is at the 0 Id Quebec Street mali at 55 Wyndham Street North. Once again, your new poli location is at the Old Quebec Street mali at 55 Wyndham Street North. Ifyou have any questions please cali our hotline at 1-800- 434-4456. We apologize for any inconvenience that this may cause.

[165] The message was repeated in French. The Old Quebec Street Mali location was a polling station for voters living within walking distance in the immediate area. It was a considerable 1249 Page: 61 distance from the cornplainants' homes, whereas their correct polling station was, generally, within 1,000 metres.

[166] There was an immediate reaction to the misleading telephone calls from electors who had ...... :J c already voted at their local polling stations and from others who had taken the message at fàce ro ~ 1.0 N vaiue and made their way to the Old Quebec Street Mall location. The local Returning Officer's 1.0 0 1..1.. ("') office was inundated with calls from voters who had received the misleading messages. .,-- 0 N

[167] An estimated 150 and 200 voters were misdirected to the Old Quebec Street Mall.

Arnong this number were elderly or disabled voters and others with children in strollers. Sorne of the misdirected electors 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 poll in time.

[168] The cornplainants interviewed by Mathews had received previous calls from the

Conservative carnpaign inquiring about their voting intentions and had indicated that it would not be the Conservative candidate.

[169] The ITO explains that Mathews' investigation traced the source ofthe Guelph calls to a pre-paid mobile phone used to engage the services ofRackNine, Inc. to transmit the misleading polling station messages to 6, 737 telephone numbers in the Guelph area early on May 2, 2011.

Instructions to transmit a similar message purporting to come from the Liberal party candidate, 1250 Page:62 between 2 a.m and 4:45 a.m on election day, to the same numbers, were deleted before they could be acted upon.

[170] RackNine is a voice broadcasting vendor providing digital Voice over Internet Protocol

(VOIP) calling technology. Dming the election campaign in 2011, RackNine was lUlder contract to the Conservative Party not to provide its services to any other political party. RackNine also did voice broadcasts for the campaign of the CPC candidate in Guelph.

[171] The individual originating the misleading calls used a :fu.lse name and address in commllllicating with RackNine and used anonymous proxy servers based in Saskatchewan and the United States to pay for the service through the online payment service PayPal The pre-paid mobile phone was registered with a :fu.lse name and address and the subscnber paid for the

RackNine service through Paypal using non-reloadable Visa and Mastercard pre-paid cards bought anonymously at drug stores in Guelph. There was no suggestion made before me that

RackNine was aware that its automated cali services were being used for an improper purpose.

Once the accollllt was established, instructions, including the messages to be transmitted, were commllllicated to the RackNine servers via the Internet.

[172] Mr Mathews ascertained that the Internet Protocol (IP) or computer address used by the originator of the misleading messages was associated with a second IP address in RackNine records used for voice broadcast orders from the Deputy Campaign Manager for the

Conservative candidate in Guelph. CPC records indicate that the same IP address was used to access the CPC Constituency Information Management System ("CIMS'') database by 5 Page:63 voltmteers supporting the Conservative candidate in Guelph. Access to CIMS was lirnited to those who had been approved to have access by the CPC and who had been issued unique passwords. According to a witness interviewed by Mr. Mathews, certain participants in the

Guelph Conservative campaign were overheard discussing rnaking rnisleading or irnproper calls to electors during the carnpaign and setting up an auto dial arrangement for this purpose that could not be tracked back to the carnpaign.

[173] The ITO states that CIMS records indicate that a volunteer with the Guelph carnpaign accessed the database on April 30, 2011 for what appeared to be three 'Demon dialler" reports for the area. A 'Demon dialler" report is a list ofphone nurnbers which can be configured with the narnes of supporters and non-supporters. The CIMS record indicated that the volunteer downloaded the reports to the local computer he was using. The list used by a RackNine autornated server to rnake the rnisleading calls appeared to a CPC official to be a list of identified non-Conservative supporters that was updated in CIMS on April 27, 2011.

[174] In the tenth ITO swom on November 2012 and made public on January 15, 2013, seeking the production ofrecords from Rogers Communications, Investigator John Dickson stated that he has reasonable grounds to believe that offences contrary to s 491(3)(d) ofthe Act had been cornrnitted in N ewfoundland, New Brunswick, Ontario, Alberta and British Columbia. The ITO refers to the severa! other ITOs swom by himself and Investigators John Mathews and André

Thouin in relation to records rnaintained by other service providers such as Bell and Shaw and

Vidéotron in Québec and to sirnilar cornplaints ofrnisdirection and/or annoyance telephone calls during the election period. 1252 Page: 64

[175] Mr. Dickson states that as of October 11, 2012, 1,399 complaints bad been received pertaining to 24 7 electoral districts, alleging specifie occurrences of alleged improper telephone calls relating to the 2011 general election. 1,048 ofthose complaints were received following the release ofwhat has become known as the 'robocalls" story in the media on February 23,

2012. Ofthe total 1,399 complaints, 625 were reports ofhaving been called by either a live or recorded message claiming to emanate from Elections Canada. The remainder could not be sure or did not know where the caller claimed to be from A total of 83 7 complaints (the numbers overlap) were reports ofharassing telephone calls purportedly from or on behalf of candidates.

Mr. Dickson's November ITO pertained to 45 complainants known to be Rogers subscribers in

28 different Electoral Districts. He sets out the nature of the complaints regarding the calls received in each case and descnbes the steps taken in investigating them

[176] The content ofthe ITOs, for the most part, is not seriously contested by the respondent

IviPs. There is no suggestion, for example, that Elections Canada contacted electors by telephone to change their polling station. It is uncontroverted that if a change in polling station were necessary, as happened at one station in one of the six. subject ridings, that change would be communicated by reprinting and sending new voter information cards to electors or, for last- minute changes, through media broadcasts and personally by Elections Canada staff posted at the closed polling station. The complaints and the facts unearthed in the course ofthe investigations were not challenged.

[1 77] The ITO evidence confirms that there was a dehberate attempt at voter suppression during the 2011 election. However, the object of the Commissioner's investigations is not to 1253 Page:65

determine whether the election results in any specifie riding were affected. While the informants

swear that they be lieve that a persan or persans unknown did wilfully prevent or endeavour to prevent an elector from voting, the purpose of the ITOs is to obtain evidence to establish that an

offence has been committed, not to determine whether the commission of the offence changed the outcome in any riding. And, in most ofthe interviews conducted, complainants told the

investigators that they had either voted earlier or disregarded the calls and voted at their usual polling stations relying on the information on their voter cards.

[178] There is sorne evidence in the ITOs that individual electors were discouraged from voting. The clearest example is in Guelph where poli staff reported that voters tore up their identification cards when told that they had been misdirected to the wrong location. A complainant in the Rivière-du-Nord district stated that he had not exercised his right to vote because of a misdirecting phone cali. However, while complainants were interviewed in four of the six ridings that are the subject ofthese proceedings (Winnipeg South Centre, Vancouver

Island North, Nipissing, Yukon), none of them indicated that they had :failed to vote as a result of the calls.

(3) Mr. Penner's evidence

[179] In an effort to explain how political parties organize and use telephone calls to potential electors, the applicants tendered the opinion evidence ofRobert Penner, President and Chief

Executive O:fficer of Strategie Communications Inc. Mr. Penner described himself as a political 1254 Page:66 consultant with 20 years of experience in developing and implementing voter contact programs and other tools for federal provincial and municipal election campaigns.

[180] The respondent Jv1Ps objected to Mr. Penner's evidence as unfounded and inadmissible lay opinion. I am satisfied that in the context ofthese proceedings, Mr. Penner qualifies as an expert and that his evidence meets the standard for the admission of opinion evidence. The evidence is helpful with respect to matters with which the Court has no experience.

[181] Mr. Penner explained how telephone calls were used to identify supporters and to ensure that they got to the polis. In this regard, his evidence was similar to that ofMr. Andrew

Langhome, the Chief Operating Officer ofResponsive Marketing Group Inc., ('RMG'~ who gave evidence for the respondent Jv1Ps. Bath descnbed the process ofvoter identification (Voter

ID) during the campaign and the "Get-Out-The-Vote" (GOTV) calls on election day.

[182] Mr. Penner observed that the use ofharassing and misleading phone calls involving misinformation about voter registration requirements or polling locations had become increasingly common in the United States, which had a long history of such tactics. To his knowledge, however, voter suppression and harassment had not been reported to be features of

Canadian political campaigns until the 2011 election.

[183] In his opinion, a live or recorded cali advising an elector that Elections Canada has made a Iast-minute change to the elector's polling station location is almost certain to have been intended to suppress the vote of that elector if the cali was made to a supporter of another party. ,...r: 12 ;) c.J Page:67

Calls that arrive early in the morning or late at night or that are harassing in nature are more likely to be made by a competing party seeking to discourage support for the party :falsely presented as having made the cali Access to a party's central database is carefully controlied.

The calls at issue in these proceedings are most likely to have been organized by a persan or persans with: 0 access to the central information system of a political party that included contact information about non-supporters; n) the :financial resources to contract voice and automated service providers to make such calls; and fu) the authority to make such decisions.

[184] I found the evidence ofMr. Penner helpful in that it was consistent with the picture that bas emerged from the evidence as a whole; that there was an orchestrated effort to suppress votes during the 2011 election campaign by a persan or persans with access to the CIMS database.

(4) The evidence ofMs. Desgagné and Mr. Langhorne

[185] Ms. Desgagné was employed by RMG at a cali centre in Thunder Bay, Ontario, prior to and during the 2011 election, making Voter ID and GOTV calls on behalf ofthe CPC. Upon hearing media reports about misleading information concerning polling station locations being conveyed to electors by telephone calls, Ms. Desgagné brought concerns about the involvement ofher cali centre to the attention of the RCMP and Elections Canada. As a result, she ultimately provided an affidavit in April 2012 which was :filed by the applicants in these proce~dings. She was cross-examined by the respondent MPs on that and on a supplementary affidavit :filed later. 1256 Page: 68

[186] Ms. Desgagné 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 began the GOTV calls. The new text mentioned revised polling station locations. According to

Ms. Desgagné, the script did not instruct staff to say that they were calling on behalf of the CPC orthe local Conservative candidate. Her recollection, in April 2012, was that the accuracy ofthe information provided regarding polling station locations was questioned by herself and other caliers. She says she overheard another caller saying ''I am calling from Elections Canada".

[187] Ms. Desgagné's evidence was :flatly contradicted by Mr. Langhorne of RMG. He denies that his finn was either knowingly or unknowingly involved in conveying false information to electors. 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 ofthe applicants and supporting a:ffiants received a Voter ID cali from RMG in the three days prior to polling day according to the company's records. Four of the applicants received no calls from

RMG in 2011. Two bad been called earlier in 2011 but were not reached.

[188] As the calls were completed, the Voter ID data was sent back to the CPC and deleted from RMG's systems. It was in a different format and could not be used for the GOTV calls. The data used for the GOTV calls was provided by the CPC on or about April 29,2011.

[189] During the three day period prior to Election Day, RMG' s calls were directed only at those voters who had previously self-identi:fied as CPC supporters in order to remind, motivate, , and, if necessary, assist, them to vote. Langhorne says that it is ineffective to contact someone 1257 Page:69 again who has been identified as a non-supportive and that RMG, for ethical reasons, would have refused to participate in any effort to mislead voters about the locations at which they were to vote. Based on his extensive experience in election carnpaigns, it would be counter-productive to contact non-supporters at the GOTV stage.

[190] Mr. Langhome con:firmed 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 sorne voting locations at the Iast moment and invited the elector to con:firm the address where he or she would be voting. But the RMG caliers were instructed to say that they were calling on behalf of the CPC. If the voter's information about their assigned voting location did not match the address on their screen displayed from the

GOTV Data, the caliers were instructed to provide the local CPC carnpaign office phone number for the supporter to cali and get clarification.

[191] Mr. Langhome provided the text of a "GOTV Script" which he states Ms. Desgagné was directed to use on such calls. RMG determined that Ms. Desgagné made only 20 GOTV calls to persans residing in one ofthe subject ridings. It has no record of any GOTV calls to any ofthe applicants in these proceedings or to the other persans who have swom supporting affidavits.

Recordings of the 20 GOTV calls made by Ms. Desgagné to persans 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 CPC supporters in the Elmwood-Transcona riding and the information in the script was shown to be correct. 1258 Page: 70

[192] Apart from the calls made by Ms. Desgagné, RMG did not produce records of the calls

that they made into the subject ridings, as requested by the applicants, on the ground that this

would be unduly burdensome. This was not pursued by the applicants. Ali of the RMG calls

were made by live caliers, according to Mr. Langhorne. The data for Voter ID calls was provided

by the CPC and returned to the CPC following the election with the additional inputs regarding

supporters and non-supporters recorded by the caliers.

[193] In ber supplementary affidavit, Ms. Desgagné deposed that she believed that the text Mr.

Langhorne provided was an amalgam of at least two other scripts she was directed to use, one of

which referred to last minute changes of voting locations by Elections Canada. She believed that

she was directed to use both types of script at various times during the days leading up to the

May 20 Il election. According to Langhorne, there would have been no overlap between the

Voter ID and GOTV scripts except possibly on April 29, 2011.

[194] At the hearing, counsel for the applicants advised the Court that they were not relying upon Ms. Desgagné's affidavits as evidence ofthe source ofthe misleading calls. The respondent

MPs vigorously contested the accuracy ofher evidence but relied upon it to the Iimited extent that it was inconsistent with the evidence of the applicants and the ir supporting affiants re garding the calls that they had received.

[195] Ms. Desgagné's evidence is based solely upon her recollection which, as she

acknowledged in an interview conducted on CBC radio on February 28, 2012, was unclear. Mr. 1259 Page: 71

Langhome's evidence is supported by the RMG records and is consistent with the industry practices described by both himself and Mr. Penner.

(5) The EKOS Survey Evidence

[196] As survey evidence consists of an aggregate of statements by the persans surveyed and these persans are not made available for cross-examination, such evidence was long considered to be inadmissible. Survey evidence was also considered inadmissible if the results purported to answer the ultirnate question before the Court, as that was considered to be the exclusive domain ofthe trier of:fact. At common law, the evidence was admissible solely to provide the foundation for an expert's opinion evidence: R v Times Square Cinema Ltd, [1971] OJNo 1697 (QL) (CA) at para 35.

[197] The modem practice is to admit survey evidence, presented through a qualified expert, provided its :findings are relevant to the issues and the survey was properly designed and conducted in an impartial manner: Mattellnc v 3894207 Canada !ne, 2006 SCC 22, [2006] 1

SCR 772 [Matte/] at para 43. The weight it is to be given is then determined by the Court.

[198] In Canada, survey evidence has been used to determine the effect of voter registration rules on vulnerable populations: Henry v Canada (Attorney General), 2010 BCSC 610 [Henry] at paras 411-450. Survey evidence has been adrnitted in a number of other contexts involving other public po licy issues: Bedford v Canada, 2010 ONSC 4264; Carter v Canada (Attorney

General), 2012 BCSC 886; Chaoulli v Quebec (Attorney General), 2005 SCC 35; Symes v

Canada, [1993] 4 SCR 695). Surveys have also been used in trade-rnark confusion cases where it 1260 Page:72 is impractical to call hundreds of witnesses: Philip Morris Products SA v Marlboro Canada Ltd,

2010 FC 1099 at para 259.

[199] The respondent :MPs contend that the EKOS Survey is inadmissible hearsay as it is ...... :::J c tendered for the purpose of establishing contested :fàcts, namely the proof that actual voters were sro LO C\l prevented from voting. The applicants, they argue, do not merely use it as evidence that there LO () l..l.. was a pro gram of voter suppression, but as evidence that this pro gram was effective and did .,...("') 0 C\l suppress voters.

[200] The applicants submit that in dealing with fraud preventing voting, there is no readily availab le way to count the electors who did not vote other than through such a survey. They rely on the statements by the Supreme Court in Opitz at paragraphs 23 and 72 that the assessment under s 524 cannot involve an investigation into voters' actual choices and that the evidence must not compromise the secrecy of the ballot. The only reasonable alternative, they submit, was for a qualified professional to conduct a survey.

[20 1] In my view, there was no question that the survey evidence was relevant. I concluded that it was admissible in support ofMr. Graves' opinion subject to the principles set out in Matte!, above, that it was properly designed and conducted in an impartial manner. I found that the survey was ''both reliable (in the sense that if the survey were repeated it would likely produce the same results) and valid (in the sense that the right questions have been putto the right pool of respondents in the right way, in the right circumstances to provide the information sought)":

Matte!, para 45. The weight to be given toit remained to be determined. 1261 Page:73

[202] In reaching a conclusion on admissibility, I had regard to sorne of the factors discussed by Justice Smith in Henry, above, at para 279: the particular circumstances of this case and the opportunities the respondent MPs had to cross-examine Mr. Graves on his qualifications, to review the tn1derlying data and methodology, and to caTI evidence in rebutta~ the lack of :.J c: resources of the applicants and other means to establish cause and e:ffect. I note that while the m 8 LO ('\1 respondent MPs contend that court proceedings should not be turned into a battle of experts, their LO (.) LL arguments about the reliability of the survey results ali draw on Dr. Corbin's critique. In .,...<:') 0 ('\1 assessing the weight of the evidence, I took into accotn1t the content of the report and the evidence ofMr. Graves, Dr. Corbin and Dr. Nevitte, an expert in survey research and electoral behaviour retained by the applicants to assess the evidence ofboth Dr. Corbin and Mr. Graves.

[203] The EKOS Survey gathered responses from a sample of Canadian adults across the six ridings tn1der dispute. The :findings were updated after the application regarding the seventh riding was withdrawn, resulting in a sample size of2,872. One substantive effect ofthe removal ofthe Don Valley East survey respondents was to reduce the significance ofthe measurable impact on electors of receiving harassing phone caTis during the election and that factor was removed.

[204] According to Mr. Graves, a sample of this size for the six subject ridings provides a margin of error of+/- 1.8 percentage points, 19 times out of20. The margin of error increases when the results are subdivided by riding, varying from 4.0% to 5.6%, 19 times out of20. 1262 Page:74

[205] For comparison purposes, the survey also gathered responses from 1,500 adult Canadians across 106 other ridings where there were :few or no known complaints of voter suppression activity. The margin of error for the comparison groups is said to be 2.5 percentage points, 19 times out of20.

[206] The survey consisted of a series of automated questions asking the respondents whether they had received a telephone cali asking how they intended to vote and a subsequent cali telling them that their polling station had changed, if so whether that second cali was said to be from

Elections Canada, whether the location of the polling station was correctly identified and whether the cali caused them not to vote on May 2, 2011. Additional questions addressed whether the respondent had received harassing telephone calls.

[207] Mr. Graves' interpretation ofthe survey is that in the subject ridings in totaL 16.7% of respondents indicated that they had received a cali near the end of the election campaign informing them ofthe location oftheir polling station. Ofthose 16.7%, 24.6% ofrespondents indicated that they had received a cali telling them that the location of the polling station had changed. This represents 4.1% of the survey sample of 2,872 from the subject ridings, or 117 electors. Extrapolated as a proportion of the total number of electors in the six. ridings, which was

352,645, 4.1% of the eligible electorate represents 14,458 voters.

[208] Acknowledging the limitations ofthe study, the EKOS Survey concludes, among other things, that: 1263 Page:75

a. The evidence strongly suggests that there was a targeted pro gram of voter suppression in place in the subject ridings. Based on the survey samples, it appears that tens ofthousands ofvoters were targeted. b. These activities were clearly targeted at non-CPC voters in a manner that is highly improbable to have happened by chance. They included :false reports of polling station changes and faux calls claiming to be from Elections Canada. In fact, Elections Canada made no such calls and there were virtually no voting station changes, yet many thousands of voters in the six. ridings claim to have received these calls. c. Exposure to these calls clearly bad a dampening effect on propensity for non-CPC supporters to vote. EK.OS estimated the effect in the range of 1.0%. Applying a margin of errer to those estimates would produce a band of 0.8% to 1.8%. In other words if these actions bad not been in place, the CPC advantage would have been reduced by this amount on average in these six ridings.

[209] The report found that residents of the subject ridings were significantly more Iikely to have received a cali informing them of polling station change than those in the comparison ridings. Mr. Graves concluded that in the subject ridings voter suppression activities took place that were targeted at non-CPC voters. He found that the response rates for CPC voters were the same in both comparison and subject ridings.

[210] These :findings, the applicants submit, are consistent with the evidence ofMr. Langhome that RMG, at the direction ofthe CPC, called hundreds ofthousands ofelectors and read a message stating that: ''Elections Canada bas changed sorne voting locations at the last minute".

This included calls to electors in :live ofthe six subject ridings. The information was :factually wrong in that there bad been only one polling station change in ail ofthe six subject ridings m which RMG made such calls. While GOTV calls were made by the other parties to their supporters, there is no suggestion that they included similar misleading information about polling station locations. 1264

Page: 76

[211] As discussed above, under s 120 ofthe Act it is the responsibility ofreturning o:fficers to establish polling stations, with the approval of the Chief Electoral O:fficer if more than one location is required in a polling division. This responsibility would include any relocation of a polling station and any notification to electors of such a change. It was therefore improper for the

CPC and RMG to deliver the message they did, and this should not recur.

[212] However, the :fact that the RMG calls were made may account, in part, for the recollection ofpersons who responded to the EKOS survey nearly a year later that they bad received misleading phone calls.

[213] The EKOS Survey acknowledged the difficulty of estimating the actual number of electors deterred from voting in consequence of receiving such a cali. It states:

Assessing causal impacts is an exceedingly complex problem and this research cannot pro vide definitive estimates of the size of the causal impacts. It does, however, provide a reasonable basis for estimating these impacts.

[214] The survey asked respondents to report whether they :failed to vote as a result of getting such a call. The results indicated that more respondents from the comparison group reported being deterred from voting as a result ofreceiving a call indicating that the polling station location bad been changed. Mr. Graves' opinion was that this made sense because eligible voters in "swing" ridings have more incentive to vote and are thus Jess easily dissuaded from voting than voters in party strongho Ids, which were better represented in the comparison group. 1265

Page: 77

[215] One ofthe difficulties with the survey evidence, however, is that sorne ofthose who reported having been discouraged from going to the polis had previously indicated · that they had in fact voted. This inherent conflict in the results was never explained to my satisfàction.

[216] As 1 read the results of the survey broken down by the subject ridings, with the percentages rounded out to avoid counting fractional people, the findings are as follows:

Winnipeg South Centre:

There were no polling station changes in this riding. The margin ofvictory for the Conservative respondent was 722 votes (out of 40,093 cast for ali candidates). The survey contacted 606 people in the riding. Ofthose, 5.3% said that they had been called and told that their polling station had been changed. Ofthose receiving such calls, 5.7% (ie. 1.0 percent of the 606 or 6 persons) said that they then did not vote. Extrapolating that 1 % to the total 40,093 votes indicates that the reverse magic number (more votes presumed to oppose the winner than the margin ofvictory) would not have been reached.

Saskatoon-Rosetown-B iggar:

No polling station changes. The margin of victory was 53 8 votes out of 3 0,220 cast. The survey contacted 303 people. Ofthose, 4.0% (or 12 people) said that they had been called and told that their station had been changed. Ofthose, 8.1% (2% of the 303 or 6 people) said that they did not vote. Extrapolated to the total number of votes cast, 2% would exceed the reverse magic number required.

Elmwood-Transcona:

No polling station changes. A margin ofvictory of300 votes of33,085 total cast. The survey contacted 487 people in the riding. Ofthose, 4.9%, or 24 people, said that they had been contacted about a change in their polling station. Eight people (or 1.6% ofthe 487) said that they then did not vote. Calculated as a percentage of the total (1.6% of 33,085), this would indicate that 529 voters did not vote, weil in excess of the magic number.

Nipissing-Timiskaming:

No polling station changes. Margin of victory for the Conservative candidate was just 18 votes out of 42,496 cast. The survey contacted 487 people in this riding. Ofthose, 1.8% (or 9 people) said that they had been called with the misleading information. 12.1 % (ie.,1.8% of the 487, 7 people) ofthose said they then did not vote. Extrapolated to the 1266 Page: 78

total votes cast, this would indicate that 595 voters did not vote, weil in excess of the magic mnnber.

Vancouver Island North:

One polling station location was changed in this riding. The margin ofvictory was 1,827 out of 59,190 votes cast. 523 people were contacted by the survey. Ofthose, 2.7% said that they had been called and told that their polling station had been changed. Ofthose 14 people, 5.7% or 4 people (ie., 0.8% of the 523) said that they then did not vote- this would translate to 4 73 votes. The magic number would not have been reached in this ri ding.

Yukon:

No polling station changes. The margin ofvictory was 132 votes out of 16,124 total cast. The survey contacted 466 people, ofwhom 36% said that they had been called and told that their polling station had changed or 168 people. Ofthose, 10.7%, approximately 8 people or 1.7% of the 466, said they then did not vote. As 1.7% ofl6,124 is 274 voters, the magic number would have been reached.

[217] If the survey evidence is accepted, it demonstrates that 3 9 voters in total and at least one voter in each of the six ridings reported not casting a vote due to the :fraud. Extrapolating the percentage ofthose who said they did not vote because ofthe calls from the survey samples to the total number of votes cast in each riding, the reverse magic number is reached in only four of the six ridings, assuming that none of tho se who did not vote in tho se four ridings would have voted for the Conservative respondents.

(6) Dr. Corbin's evidence

[218] Dr. Corbin holds a doctoral degree in psychology, among other degrees. She·is the managing partner of CorbinPartners Inc., a marketing science company which conducts survey research and provides market analysis for business and policy decisions. Previously, she was the

Chief Operating Offi.cer of the Angus Reid Group responsible for national election polling 1267 Page: 79 operations and was at one time a polling advisor to the Privy Council Office and the Canadian

Unity Information Office ofthe Government ofCanada.

[219] Dr. Corbin bas been personally involved with numerous survey researcb studies and bas publisbed on the use of survey evidence in court. Sbe bas been previously qualified as an expert in ·the design and interpretation of survey evidence in an electoral context (Henry, above, at para

292) and ber qualifications were not contested in those proceedings.

[220] Dr. Corbin's expertise in market researcb was not questioned by the applicants. They questioned wbether the consumer orientation ofher expertise was ofvalue in this context and questioned the limited scope ofber retamer. Sbe was not asked to consider the evidence as a whole but rather to focus on the Graves affidavits and survey evidence. The applicants content that as a result sbe was unaware of the effect ofthe RMG calls on the comparison ridings, for example, and proceeded on the incorrect assumption that the reports by survey respondents of having received misleading calls were the product offulse memory. They also contend that sbe brought a byper-adversarial approacb to ber task whicb diminisbes the weight that sbould be accorded her opinion.

[221] Dr. Corbin conceded that the self-reported non-voting activity disclosed by the EKOS

Survey, if taken at fuce value, establisbes that sorne voters were deterred from voting. However, the survey fuiled to address essential standards of statistical reliability, in ber view, and the results could not, tberefore, be generalized to any conclusions about the population at large. Sbe asserts that nothing could be concluded from the survey with respect to the incidence of voter 1268 Page: 80 suppression phone calls or any cause-e:ffect relationship between such phone calls and any outcomes of the 2011 federal election.

[222] The IVR polling technology may be use:ful for sorne specifie applications, Dr. Corbin ::J- c acknowledges. But it is a highly impersonal survey technique with very low response rates and m S2.. LO N remains controversial within the industry. In the manner used in the EKOS Survey, Dr. Corbin LO ü 1..1.. (") states, it permits no verifiable control over who answers the survey. She criticized its use in this ...... 0 N instance on a number of grounds including the following:

• Survey results require validation, normally through a 10% call-back to con:firm

responses; this was not done. There was no live follow-up.

• The survey was performed 11 months afl:er the election when people's memories had

:fàded. Memories are suggestible and the respondents may have accidentally filled in

details from media reporting afl:er the :fàct.

• There were numerous sampling errors in the survey; for instance, cell phone users were

not surveyed, because according to Mr. Graves' hypothesis, cell phones were not targeted

for misleading calls.

• The youngest age category offered was "under 25", which did not screen out people

under 18 who were not eligible to vote. There was over-representation ofwomen and

under-representation of Conservatives.

• A ticket in a $500 prize draw was offered for completing the survey, so people may have

just pushed random buttons to get through and get the ir chance at the prize.

• Finally, the survey questions were con:fusing. 1269 Page: 81

[223] I note that call-backs to verifY the information received would run counter to the concem expressed by the Supreme Court that effurts to establish causal e:flècts must not breach ballot secrecy. One of the features of the IVR approach was that the respondents were assured anonymity. While there were multiple call backs to obtain a response, EKOS did not thereafter attempt to verify the responses received from those reporting non-voting behaviour. Dr. Corbin views this as a weakness but it is a point that would be problematic in any live survey that could not assure anonymity.

[224] Dr. Corbin challenges Mr. Graves' assertions that the survey provides a reasonable basis for estimating the impact of the calls. She states that there is no scientifically defensible basis for estimating or inferring causal impacts from the report. Following a detailed analysis of the discussion ofthe results in the EKOS Survey, she found the explanations "subjective, predisposed to a hypothesis of voter suppression, and inconsistent with rigorous statistical reasoning for determining cause-and-effect. 11

[225] Dr. Corbin's analysis of the data led her to conclude that at least two ridings, Saskatoon-

Rosetown-Biggar and Nipissing-Timiskaming, could immediately be eliminated from consideration as targets of suspicious phone calls, because there were fewer complaints about such calls than in the comparison ridings. Her analysis ofthe remaining ridings indicates that overall, there was not enough difference between voters in the comparison group and voters in the subject ridings to demonstrate that suspicious calls had made any difference. She points out that in Winnipeg South Centre and Vancouver Island North, the magic number is not reached even if Mr. Graves' :findings are accepted. 1270

Page:82

[226] Dr. Corbin would elimina te more than half of the survey respondents as lying or mistaken based on a comparison of tables ofsurvey respondents who reported receiving calls which caused them not to vote, and tables of survey respondents who said they bad actually voted. Excluding those she concluded bad lied from the data and adjusting the data to compensate for under-age voters, cell-phone owners, ineligible voters and other concerns such as

:faulty memory, the remaining alleged voter suppression e:lfect is reduced to zero. In the result,

Dr. Corbin found no statistical difference between the subject ridings and the comparison group ridings. In ber analysis, the EKOS Survey is, overall, methodologically unsound and could have a margin of error ofbetween 8% and 20%.

[227] A sur-reply affidavit by Dr. Corbin was tendered on October 29, 2012 in response to the revised report by Graves and EKOS calculated without the data from the seventh riding. In the revised report, sorne of the numbers bad changed but not to the extent that the results were dramatically altered. Changes from the original report were indicated with strike-throughs and side-bars descnbing the adjustments made.

[228] Dr. Corbin added the following arguments, among others:

• There is now stronger evidence of no material voter suppression in the collection

of six subject ridings.

• There is new unequivocal evidence that if non-voters bad been. targeted by

illegitimate phone calls, those most Iikely to be targeted were people with

Conservative Party leanings, rather than non-Conservative Party leanings. That 1271 Page:83

is, if targeted non-voters bad actually voted, it appears more likely they would

have voted for the Conservative candidate.

• One can go :further than concluding that there is no material voter suppression

demonstrated for any of the Subject Ridings. A statistical analysis based on Mr.

Graves' s own data shows that there is less likelihood that alleged "voter

suppression" took place in the Subject Ridings altogether, compared to anywhere

else in Canada.

[229] I found Dr. Corbin's evidence to be overly argumentative. In ber critique ofMr. Graves' use of the IVR technology and his opinion evidence, she appeared to enter the arena as an advocate. I agree with the respondent :MPs that election annulment proceedings should not be a "battle of the experts" but it seems tome that they encouraged Dr. Corbin to engage in just such a battle.

(7) Dr. N evitte' s evidence

[230] The applicants retained Dr. Neil Nevitte, an expert in survey research and electoral behaviour, to assess the evidence ofboth Dr. Corbin and Mr. Graves. Dr. Nevitte is a professor of political science at the University of Toronto and a researcher in the areas of public opinion, voting, value change, and the problems associated with transitional elections. He was a co- investigator ofthe Canadian Election Studies (1993-2009), serves as a Senior Election Advisor with the National Democratie Institute for International Affairs and is a technical advisor to international non-governmental organizations on the prevention and detection of election :fraud 1272 Page: 84 and conditions for free and fuir elections. He was tendered as an expert in survey research and electoral behaviour.

[231] The respondent l\1Ps objected to Dr. Nevitte's evidence on the grounds that it was not independent and objective. They argued that he was retained for the sole purpose ofbolstering the EK.OS Survey, and that the admission of his evidence would split the applicants' case. They questioned his qualifications in expressing an opinion on voter suppression as he acknowledged not being an expert in that field.

[232] Because of the novel use of survey evidence in this case, I considered that it was appropriate for the applicants to seek a second opinion on the validity of the methodology and conclusions in the EKOS Survey. I found Dr. Nevitte's evidence to come within the Mohan criteria. In the context of the open conflict between Graves and Corbin, I found it to be impartial and helpful

[233] Dr. Nevitte deposed that he had been involved in large-scale survey research dealing with electoral data and public opinion data for 30 years. He had never seen a survey research project that was completely free of problems. It is not unusual for survey experts to have honest differences of opinion about the best way to conduct the research. He considered many of the concerns raised by Dr. Corbin to be common to this kind of exchange and not requirements observed by the industry. 1273 Page: 85

[234] He described her general approach, however, as "cross[ing] the boundary that separates

honest disagreement from strenuous, and not so credible, disagreement" In his view:

The Corbin report lists a Iitany of claims concerning the reliability, validity, and scientific reporting which render the data as invalid, unreliable and so not a foundation from which useful inferences can be drawn. My view is that this is too harsh a judgrnent. Many ofthe claims upon which those sources ofunreliability and invalidity are based are :fàctually incorrect. Others, as it turns out, have been addressed.

[235] Dr. Nevitte concluded that the EKOS Survey "for the most part, makes relatively modest

claims that are advanced, usually, with related caveats and proper caution", and criticized the

initial Corbin report on the ground that it had not squarely addressed the central question of whether voters for different parties had different probabilities of receiving deceptive calls.

[23 6] Dr. N evitte acknowledged that sorne of Dr. Corbin' s criticisms raised valid issues, notably: (a) memory lapse over time; (b) the suitability ofiVR technology; (c) the randomness of the survey sample; ( d) the nature and suitability of the comparison group; (e) the question of causation; and (f) the issue of data disclosure.

[237] Memory unreliability could be a problem but a call related to a general election would be more memorable, in Dr. Nevitte's view, than most daily events. He notes that it would not be logical that supporters of one political party would have consistently Jess accurate memories than others. IVR interviewing is autornated and impersonal but he did not see that as a problem and considered that the methodology used was standard for the industry. The :fàct that the sample was random was not an issue so long as the normal precautions were taken. While the comparison group consisted of 106 ridings in which few complaints were :filed, rather than ridings in which 1274 Page: 86

no complaints were filed, this was the best that could be done in the real world, whatever the

ideal might have been. The comparison group revealed significant statistical diflèrences, in his

vie w.

[238] With respect to causation, Dr. Nevitte concurred with EKOS' assessment ofthe extent

and targeting of the calls. He noted, however, that "it is di:fficult to draw :firm conclusions about

what e:ffect those calls might have bad on overall rates ofvoter turnout." Overall I assessed Dr.

Nevitte's evidence as supporting the use of the IVR methodology but not necessarily the results

in this instance.

(8) Evidence ofthe respondent :MPs' campaign managers

[239] The respondent l\1Ps adduced the evidence of their local campaign managers. Each of

them denies having engaged in voter suppression. This is consistent with the results of the

Mathews investigation in Guelph which appears to point to the involvement of volunteers in the

local CPC campaign but does not implicate either the CPC candidate in that riding or his

campa1gn manager.

V. Conclusion on the Merits

A. Has "fraud" under Section 524(l)(b) been made out?

[240] As noted above, the respondent :MPs contend that the meaning offraud within s 524(1)(b) must be derived from the Criminal Code o:ffence or the elements of the o:ffence set out in s 1275 Page:87

482(b), which would require proof ofboth a factual and a mental element. These elements would be, they submit, 1) the utterance of a pretence or contrivance, and 2) the intent to cause an elector to refrain from voting. They argue that the applicants have failed to make out the elements of either o:ffence or tho se of any other electoral offence by failing to identi:fy a perpetrator with a guilty mind or establish that they were actually prevented from voting.

[241] The applicants submit that they have presented evidence demonstrating a prim.afacie case of fraud. Telephone calls were received; these did not come from any authorized body such as Elections Canada; they directed electors to the wrong polling stations; thousands of complaints have been received by Elections Canada from across Canada, reflecting a country- wide pattern of conduct. The conduct was aimed at "swing ridings" such as the six that are the subject ofthese proceedings, as the margin ofvictory in those was likely to be narrow.

[242] As I discussed above, the meaning of "fraud" in s 524(1 )( b) is not Iimited to the definition of any of the offences in Part 19 of the Act. It is not necessary, in my view, for an applicant to satis:fY the elements of the criminal offences in order to establish that ''fraud" within the meaning of the enactment has been made out. It is sufficient to show false representations depriving, or creating a risk of depriving, a voter of the right to vote.

[243] 1 have considered whether the complainants outside Guelph conflated the calls by RMG and media reporting and came to a mistaken conclusion that they had received dehberately misleading calls, but this is inconsistent with the RMG evidence, which clearly shows that the company did not make calls to non-supporters, who were identi:fied as such in the CIMS 1276 Page: 88 database. GOTV calls on election day were only made to identified CPC supporters which did not include the applicants.

[244] I am satis:fied that is has been established that misleading calls about the locations of polling stations were made to electors in ridings across the cotmtry, 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.

[245] In reaching this conclusion, I make no :finding that the CPC, any CPC candidates, or

RMG and RackNine Inc., were directly involved in the carnpaign to mislead voters. To require the applicants to identi:fy the perpetrators ofthe misleading calls would impose an irnpossibly high standard ofproof I am satis:fied, however, that the most likely source ofthe information used to make the misleading calls was the CIJ\1S database maintained and controlled by the CPC, accessed for that purpose by a persan or persans currently tmknown to this Court. There is no evidence to indicate that the use of the CIJ\1S database in this manner was approved or condoned by the CPC. Rather the evidence points to elaborate efforts to conceal the identity ofthose accessing the database and arranging for the calls to be made.

[246] I :find that the threshold to establish that fraud occurred has been met by the applicants.

The questions remaining are whether the fraud affected the results of the election, and if so, whether the Court should exercise its discretion to annul the results in the subject ridings: 1277 Page: 89

B. Did the fraud affect the results ofthe election in the six subject ridings?

[247] The applicants bad a difficult obstacle to overcome in these proceedings. They bad no direct evidence that the voter suppression efforts bad been successful They themselves bad not been prevented from voting by the misleading telephone calls that they received. As they point out, however, to require direct evidence of the effects of voter suppression measures may make it much more difficult to bring such challenges under s 524 ofthe Act. There is no readily available means to count the number of electors who were not able to vote by virtue of the fraudulent activity unless they ali come forward and self-identify, which is highly improbable.

[248] The applicants reasonably turned to a random interactive telephone survey as an alternative means to collect the data. They ask the Court to extrapolate, from the survey samples, an estimate of the total number of persons who did not vote in the six ridings as a result of the misleading calls and to draw the necessary inference asto the effect on the outcome in each riding. It would be easier to draw those inferences IT: as the respondent MPs argued, at least sorne ofthe supporters ofthe losing candidates in the six ridings who did not vote because ofthe misdirecting phone calls would have corne forward to make that known at the time of the election or when the story broke in the national media ten months later. That this did not occur bas raised questions that have not been answered in this proceeding.

[249] Apart from the survey, there is no evidence that the election results in the six ridirigs would have turned out differently. This is not a case of disappearing ballots or tampering with voting machines as in sorne of the American cases in which survey evidence bas been accepted. 1278 Page:90

Here, the survey is offered to establish that sorne voters, a su:fficient mnnber in each riding to

overcome the margin ofvictory, would have voted but for the e:ffect of a telephone cali directing

them to the wrong polling location. None ofthose voters have come forward to confirrn the results. The survey evidence, in this case, does not provide finn grotn1d on which the Court could

have confidence in :finding that the :fraud affected the results in any of the six ridings. I am, therefore, 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.

[250] That conclusion is not intended to preclude the use of such evidence in a future case should it be possible to address the concerns raised in this proceeding about the survey methodology and interpretation ofthe data.

[251] Absent a clear :finding that the election results could have been different but for the voter suppression efforts, the Court must tum to the alternative basis advanced by the applicants for annulling the elections. It must consider whether the corrosive effect of the :fraud was su:fficiently serious to cali the integrity of the election pro cess into question requiring new votes in tho se six ridings.

C. Did the fraud call into question the integrity of the elections?

[252] This case was problematic from the outset, as the applicants acknowledged, becal.Jse of the challenges they :faced in collecting evidence to support what they rightly identified as a widespread attempt at voter suppression. The evidence of :fraud was most clearly demonstrated m 1279 Page: 91 the Guelph investigation. As the investigations continued, the Commissioner's o:fficers uncovered evidence that the Guelph experience was not unique and that sirnilar atternpts were made across the country including in the six subject ridings. The applicants' own experience on

Election Day supports those :findings.

[253] Canadians have confidence in the integrity of our electoral procedures. The sanctity of the poli and the ballot box in this country is reflected in the frequent invitations Canada receives to provide independent observers to supervise foreign elections. There may have been isolated instances of electoral misbehavio ur in the past but, as noted above, incidents of voter suppression of the nature discussed in these reasons have not been known in this country prior to the 41st

General Election. For that reason, 1 don't doubt that the confidence rightfully held by Canadians has been shaken by the disclosures ofwidespread fraudulent activities that have resulted from the

Commissioner's investigations and the complaints to Elections Canada.

[254] Had 1 found that any of the successful electoral candidates or their agents were implicated in any way in the fraudulent activity, 1 would not have hesitated to exercise my discretion to annul the result even if the reverse magic number had not been shown to have been reached in the riding in question. No such evidence was led.

[255] The scale of the fraud has to be kept in perspective. According to the Report of the Chief

Electoral O:fficer ofCanada on the 41st general election of May 2, 2011, found on the website of

Elections Canada, a total of66,146polls atwhich 14,823,408 electors casttheir ballots were set up and operated across Canada on polling day. The number and location of the complaints 1280 Page:92 received by Elections Canada from across Canada indicates that the voter suppression effort was geographically widespread but, apart from Guelph, thinly scattered.

[256] While they appear to have been targetted towards voters who bad 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 bad a major impact on the credibility of the vote.

[257] Elections Canada bas responded to the complaints received and they continue to be actively investiga ted. At the time of writing, the press reported that the Director of Public

Prosecutions bad authorized the Commissioner to commence a prosecution under Part 19 of the

Act. These institutions and the Courts have the capacity to address this effort to strike at the integrity of our democratie process.

D. Should the Court exercise its discretion to annul the elections?

[258] Having considered the matter very care:fully and with a :full appreciation for the concems about the integrity of the electoral process that have motivated these applications, I am unable to co ne lude that I should exercise my discretion to annul the 2011 election results in any of the subject ridings because of the fraud that occurred. 1281 Page: 93

VI. Costs

[259] The right of citizen electors to seek to annul election results that they reasonably believe to be tainted by fraud is, in my view, a matter ofhigh public interest and analogous to Charter litigation. A concem that has frequently been raised is that such litigation should not be beyond the reach of the ordinary citizen. The courts have gone so far as to require that a portion of the costs of such cases be paid by the opposing successful parties: M v H, [1996] OJ No 2597 (QL)

(Ct 1 (Gen Div)). at paras 17, 30; Lavigne, above, at para 106.

[260] I am mindful ofthe fact that in this instance the applicants have received guarantees of indemnification by a non-govemmental organization which bas been raising funds for that purpose. But it is also apparent that the respondent :MPs are supported by the resources of the party to which they belong, resources which are underwritten by taxpayers.

[261] These proceedings have bad partisan overtones from the outset. That was particularly evident in the submissions of the respondent :MPs. In reviewing the procedural history and the evidence and considering the arguments advanced by the parties at the hearing, it bas seemed to me that the applicants sought to achieve and hold the high ground of promo ting 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 the merits.

[262] Despite the obvious public interest in getting to the bottom ofthe allegations, the CPC made little effort to assist with the investigation at the outset despite early requests. I note that 1282 Page:94

counsel for the CPC was informed while the election was taking place that the calls about polling

station changes were improper. While it was begrudgingly conceded during oral argument that

what occurred was "absolutely outrageous", the record indicates that the stance taken by the

respondent Jv[Ps from the outset was to block these proceedings by any means.

[263] The preliminary stages were marked by mnnerous objections to the evidence adduced by

the applicants. The respondent Jv[Ps sought to strike the applications on the ground that they were

frivolous and vexatious, to have them dismissed as champertous and to require excessive security

for costs, in transparent attempts to derail this case.

[264] There have been interlocutory decisions made by the case management prothonotaries

during the proceedings with related costs awards. The applicants are, in my view, entitled to be

awarded costs on each of the pre-hearing motions in which they have been successful on a

solicitor and client basis to be paid jointly and severally by the respondent Jv[Ps. This applies also to the champerty motion and the motion to exclude the Graves evidence which was brought

initially in relation to the Don Valley East application and then deemed to apply to each of the

other app licatio ns.

[265] Apart from the motion costs, and with the above considerations in mind, I am inclined to

order a modest fixed amount for the costs of the hearing. Absent an agreement as to the amount, the respondent Jv[Ps may make written submissions limited to ten pages within thirty days of the

date ofthis judgment. The applicants will then have :fi:fteen days in which to respond and the 1283 Page:95 respondent l\1Ps another :five days to reply. I will then award a :fixed smn in an amount I consider appropriate given the foregoing comments. The other respondents will bear their own costs. 1284 Page: 96

JUDGMENT

TIUS COURT'S JUDGMENT is that

1. the applications are dismissed;

2. the respondent Members of Parliament are awarded costs for the hearing in an

amount to be :fixed in accordance with the directions given in the reasons for

judgment;

3. the applicants are awarded costs for the motions in which they were successful on

a solicitor and client basis; and

4. the other responding parties shall bear their own costs.

"Richard G. Mosley'' Judge 1285

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET: T-619-12 (T-620-12, T-621-12, T-633-12 T-634-12,T-635-12)

STYLE OF CAUSE: SANDRA MCEWING AND BILL KERR

and

ATTORNEY GENERAL OF CANADA, MARC MAYRAND (TIIE CHIEF ELECTORAL OFFICER), JOHANNA GAIL DENESIUK RETURNING OFFICER FOR WINNIPEG SOUTH CENTRE) JOYCE BATEMAN, ANITA NEVILLE, DENNIS LEWYCKY, JOSHUA MCNEIL, LYNDON B. FROESE, MATI HENDERSON

ANDBETWEEN KAY BURKHART

and

ATTORNEY GENERAL OF CANADA, MARC MAYRAND (TIIE CHIEF ELECTORAL OFFICER), DIANNE CELESTINE ZIMMERMAN (RETURNING OFFICERFOR SASKATOON­ ROSETOWN-BIGGAR), KELLY BLOCK, LEE REANEY, VICKISTRELIOFF, NETTIE WIEBE

ANDBETWEEN JEFF REID

and

ATTORNEY GENERAL OF CANADA, MARC MAYRAND (TIIE CHIEF ELECTORAL OFFICER), LAUREL DUPONT (RETURNING OFFICERFOR ELMWOOD-TRANSCONA), JIM MALOWAY, ILONANIEMC.lYK, LA WREN CE TOET, ELLEN YOUNG 1286

ANDBETWEEN KENFERANCE AND PEGGY WALSH

and

ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL

OFFICER), DIANNE JAlvlES MALLORY LO N (RETURNING OFFICERFORNIPISSING­ LO () TIMISKAMING), JAY ASPIN, SCOTT LL (') EDWARD DALEY, RONAECKERT, 't"" 0 ANTHONY ROTA N

ANDBETWEEN YVONNE KAFKA

and

ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), ALEXANDER GORDON (RETURNING OFFICERFOR VAN COUVER ISLAND NORTH), JOHN DUNCAN, MIKE ROLLAND, RONNA-RAE LEONARD, SUEMOEN,FRANKMARTIN, JASON DRAPER

ANDBETWEEN THOMAS JOHN PARLEE

and

ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), SUSAN J. ELELMAN (RETURNING OFFICERFOR YUKON), RYAN LEEF, LARRY BAGNELL, KEVIN BARR, JOHN STREICKER 1287

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: December 10 to 17,2012

REASONS FOR JUDGMENT AND JUDGMENT: MOSLEY J.

DATED: May23,2013

APPEARANCES:

Steven Shrybman FOR THE APPLICANTS Peter Engehnann Benjamin Piper

Barbara Mcisaac FOR THE RESPONDENT Marc Chenier (Marc Mayrand, The Chief Electoral Officer)

Arthur Hamilton FOR THE RESPONDENT Ted Frankel (Responding Parliamentarians) Jeremy Martin

W. Thomas Barlow FOR THE RESPONDENT Nick Shkordo:ff (The Responsive Marketing Group Inc)

SOLICITORS OF RECORD:

SACK GOLDBLATT FOR THE APPLICANTS MITCHELL LLP Ottawa, Ontario

BORDEN LADNER FOR THE RESPONDENT GERVAIS LLP (Marc Mayrand, The Chief Electoral Officer) Ottawa, Ontario

CASSELS, BROCK & FOR THE RESPONDENT BLACKWELL LLP (Responding Parliamentarians) Toronto, Ontario

FASKEN MARTINEAU FOR THE RESPONDENT DUMOULIN LLP (The Responsive Marketing Group Inc) Toronto, Ontario TABB 1288

Court.File No, T -633-12

FEDERAL COURT OF CANADA

BETWEEN:

KEN FERANCE AND PEGGY WALSH CRAIG

Applicants

-and-

ATTORNEY GENERAL OF CANADA, MARC MAYRAND (CHIEF ELECTORAL OFFICER). DIANNE JAMES MALLORY (RETURNING OFFICER FOR NIPISSING­ TIMISKAMING). JA Y ASPIN. SCOTT EDWARD DALEY. RONA ECKERT, ANTHONY ROTA

Respondents

AFFIDAVIT OF PEGGY WALSH CRAIG (sworn April __, 2012)

I. PEGGY WALSH CRAIG, of the City of North Bay, in the Province of Ontario, MAKE

OA TH AND SA Y as follows:

1. l am an elector who was eligible to vote in the electoral district of Nipissing-

Timiskaming during Canada's 41st General Election, which occurred on May 2, 201 1

("the Election").

2. A few weeks before the election, 1 received a prc-recorded telephone call that asked if I

would be voting for the Conservative Party of Canada (the "Conservative Party").

p~~~~~~ A • . . . ~ ~ ·'"".,. -~. A~lt'.«r~~vm: -2-

3. The recording asked me to respond to this question by pressing certain numbers on my

keypad. 1 pressed the number that indicated that 1 would not be supporting the

Conservative Party during the Election.

4. Sometime during the week before May 2. 2011,1 received a telephone cali from someone

purporting to be from Elections Canada that contained a pre-recorded message. The

message indicated that due to higher than anticipated voter turnout, my polling station

had been changed.

S. 1 ended up voting in the advanced polis.

6. When T received this call, T did not suspect that it was not from Elections Canada and

only became aware through media coverage in late February 2012 that it was likcly to

have been fraudulent or illegal and part of an organized campaign to suppress the vote in

my riding for certain candidates, and thereby affect the result of the Election.

7. I made a complaint about the this late April/early May cali to Elections Canada on March

1, 2012.

8. On March 9, 2012, 1 contacted Cogeco, my telephone service provider, to obtain my

phone records for April-May 2011 in order to ascertain the telephone number from which

these calls were made. 1 was told by a representative of Cogeco that T could not obtain

such records without a court order. 1290 -3-

9. 1 make this affidavit in support of an application to contest the election in the electoral

district ofNipissing-Tamiskaming and for no other or improper purpose.

SWORN before me at the City ofNorth Bay, ) in the Province of Ontario, on April J..!i__, ) 2012. ) ./ !·~ . 1 / (i ..-/'1,--· j /l 1 ~ ---·7'f:M#~:>fv-~L...~·-~-~~.;:;..:'~.:....~'=~-'-~.t.:,·~.:.:....:·~if~j&::-:r-t:-'-- ,1'~

F IOOC\00410922.00C KEN FERANCE AND PEGGY WALSH CRAIG -and- ATTORNEY GENERAL OF CANADA, MARC MAYRAND (CHIEF ELECTORAL OFFICER), DIANNE JAMES MALLORY (RETURNING OFFICER FOR NIPISSING­ TIMISKAMING), JAY ASPIN, SCOTT EDWARD DALEY, RONA ECKERT, ANTHONY ROTA Applicants Respondents

Court File No. T-633-12

FEDERALCOURTOFCANADA

Proceeding commenced at OTTAWA

AFFIDAVIT OF PEGGY WALSH CRAIG

SACK GOLDBLATT MITCHELL LLP 30 Metcalfe Street Suite 500 Ottawa, Ontario K1P 5L4

Steven Shrybman (LSUC No. 20774B) tel: 613-235-5327 fax: 613-235-3041

Solicitor for the Applicants

l-lo. N ...... ~0 TABC 1292 26 ·1 , l 1- • 1 (...... ,l . PRODUCITON ORDER ORDONNANCE DE (Section 487.012 of the Crim.inal COMMUNICATION Code) · (article 487.012. du Code crim:inel)

Canada, Cana.da, Province of Ontario Province de (province)

>.. To:

Bell Canada, -865 Pharmacy Avènuc, sfh Floor, Toronto, Ontario MlL 3K7 ~ , ·~~""'tt!M~.Ï and at or in any o~ location, receptacle or place where tiie Ben~ niainta3~~\r.lt stores the~ rcferred tn belowunderthe heading DOCUMENTS OR DATA TO BE PRODUCED and over wbich Bell cànada. has possession or controL

Whereas it appeaiS on the oatlï ofAllàn Matltews, of1he City·af Ottawa in the PIQVince of Ontlirlo, a public o:fficer appointed or desigrlated. to. administer or enfoxce a ~ 1ay.t . and whose dutics include the emorcement of the Canada Ekctions.Act, tbat the~:e are . .. r· reasonable ~ to ~e~ tbatthc follo'Wing offencc bas been~tted. namely: 'r': ... OFFENCE ...... • ~;...•.· •• r.;" • •' •• • • • • •· , • ' •... ·Tfia.t a penon or pmoils unknmm, on May 2; 1011, a~ or near tht? City of Guelph~ elsewhere in the Pro'dnce of Ontario, dièf;. wiJfuUy preVent or-endeavour to p~ent an eleet~r fi"Qm vuting in au electiQn çontrary to paragraph 28:1 {g) of thè· Canaàa' Ekdions-Ad.

· .:\nd by se- dôiDt com~iftœ an off=ce contrary to paragraph 491 · (3){d} Of the Camztla Elections Act, S.C.lOOO, e9~~endèd; . . · .. i AND

'l'hat a persOn or. persons wilmowÙ:, on May 2, lOfl, .at or near the City of Guelph and · ~ewhere in th• Provin~ of Ontario, did, by pretence or colitlivance, induce or attempt to induœ penons tu vote or refrain from voting orto vote or terrain from· voting for a- pardcular candidate and ~ so doing com:mitfed an offtlicet conuaty to paragrapJ.t 482 (b) of the CaJUula Eledl.omAct, S.C. 2000, c.9 as amended;.

commisSion of 1he offence dcscribed And tbat the following documents or apove: data will afford evideace respecting the

1

732 1293

27 ., • ...... • '·. .. 'J

Et que les documents ou données perpétration des infraction émlm.étêes ci­ énumérés dans la liste suivante haut: foumkont 1lile preuve taucbant la

DOCUMŒNTSORDATATOBE DOCUMENTS OU DONNÉES À PRODUCED'' COMMUNIQUER

Copies, certified by atfidavit to be trne copies, of doemnentation or data relatblg to a Virgin Mobile ceil phone, using phone num.ber 450..760-77-%, loc:ated at or thnntgh Bell Canada, 865 Pharmacy Avenue, Toronto, Ontuio MlL 3K7 as follows: · .. - Sales records for the sale of a Vugin MobHe cell phone and; phone num,ber 450-?G0-7746 that is assoclated to the Vugin Mobi}e cell phone, b~ed·to be reeo.tded in :Ben Onu da records und'er a subseriber name "PielTe Pontine", including records relating to tJœ method and fune. and place of paym:ent and ... p1ll'dwe; - ln the eVent. reœ:rds for the sale ofVirgin Mobne ceU phone, and phône number 450-760-7746 that is assoclated to the Vagin Mobile ceU phone are not ava:ilable at BeD. Canada, then thè name and record of sale or transfer to the sales retailer througb. whom Vu-gin Mobile cell phone and phone number 45()... 760-7746was made avaib.ble ro!" sale to the publù:; .

- Ali subs~r.inform.ation for VJ®.n M9bile. ceD. phone, phone number ~ 760-7146 believed to be andel" a subscn"ber uamc "J?ierre Poutinef, includiug ·. · fn!t.~~~:~~~r_.~.~~:t~N~~~b~~.p~~~~ ::··,··· ·. tp;,y-. ~~·.ë~P,~~··i!~p.llumfiè~ a;.7,6(J.:.W46r anti w· p,._im~ nm'Iitiêi''ISQ..%0-'7146 gomg ïntO··âqa out of s~rvieê; . . . . - CaU D~ ~for phone number 450~760-7746 from the perlod from its . ~oing into seni~ to its gofug '>ut of service, w.bi'cll. iS beneved to be !tom Marck or ~ ~.~11 through .~ and·inclUdmg May, 2011, iJ1.~ recqrds reb.tjng to on oÎ'Îgination and'tel'lilin.atio#, cali duratio~ o~ca:rrler, calf àntl carrier ruuting information, phone u.mimers call~ phone numbers or caDs reeeived, and caller ID ·information, ~d the Automatie Num.ber Identifier (ANI} associated to the~ made; · ·

- bi addition to the above, CaU Detail Records for phone number.4S0-760-7746 segrega,ted for May 2, 2011, including records 'relating to cali origination and terminaüon, cali duration, · originating carrier, caJl md ca.nier routing information, .phone numbers called, phone numbe:n or ta1Js reeeived, sild caller ID information, mid the Automatic ~nmJ:ter Identifier (.ANI) assodatecl to. the eaiis made; . ~ . . .

Inforination related to the SIM (Subscriber ldenfity Modti(e) chip assoclated to the Virgül Mobile cell phun.e'usiiJg phone nwnber 450-760-7746, inc:Jnding

2

733 1294

28

'\, ' .,. \- ... . { ·, ' \_j i. · ... • .

. any fnformatioù :as tu 'Whe1her lhe chip was.instalkd in uy equipmeat iliiMr than the Virgin Mobile cell phone, phone. number 450-760-~ ..._. purclwe, includüi.g a list of deviees, if any, that have heen used ii lW subscriber's account.

howeve.r stored {eledronically, on miuofithe,.o:Ù. paper, on photographk film or any otlier. form), m.aintùned at Ben Canada and affiliates;

.Ànd it further appeam thal: there are 'Et qu'il semblerait y avoir des motifs reasonable grounds to believe that Bell nüsonmibles de croire ~ a Canada bas possession or control of 1be la possession. 0'11 le contrôle des DOcoM:ENrs OR. DATA TO BE . DOCUMENTS ·ou DONNÉES À l'RODUCED. COMMUNIQ~

You arc, therefure, hereby m:dered in À ces ~uses, les présentes. ont pour produce èerti:fiéd' copies. of· 1he objet de vous obJiger de · docmnents or data referred to above connmmiquer les. documents référés undcr ;DoelJMEN.rs OR DATA ci-haut SOllS DOCUMENTS ou TO BE PRODlJCED, to Allan DONNÉES À ÇOMMQNIQUER à Matbews, being a public 'officer agent notamment de ~inted or- designated tn administer :fuire observer une telle loi, en~ or enforce a {edcmi law mid wbose de _ jOlliS de. la date de cette duties include the cnfoiCement of an ordonnance public. nommé ou Act of Parliament, at the basiness déSigné pour fapplication ou premises or~ the èommissioner of l'exécution d'une loi fédérale oti Canada .Ele.ctioœ 257· Siater street, provinciale et chatgé. ·t· \- .. Ottawa:;. On"iarlo K.1A OM6 or· as .. ,... ~ · other:wise a:tmnged, within 60 days ftom the date ofthis ontcr• .~. '• :pated this «!day ofJune,. 2011, attiie CitY.~ofOttàwa,. · Province ofOn:tario 1

..

. in and for1he P.rovince ofOntmio .. . .

3

734 1295

29

• FOiill5.21~5.2 Ra'ORT ro A JUSTICE/ RAPPORT A Ufi.JUGt: DE PA«' (Sedion -489.1 Crjmlnal Code Ill'~ llffir»4811.1 du Ccdtl Climinel du Canad-.1 . . CANAD.t. Au IUf1! dt pa~x qu1 • ddcomf ID! ~ œ PRCMNŒOF OtiTARJO ~Pli ve~~u œ /atfl$ 4117.012 du~ CrimirJef PROVINCE DE L'OHTARJO rlu ~ cu âiiW juge drl Ill* pcir ,. Jni1M Obwa . cimonsa~ fwrilodala tt $1UcW1 mmdii n'a 6/A ~ tcutpg. œpllit IIJ'*IIcampl!fll)ce ê/1 lal!ll!iit9. .· 1, . Allan K. Mathcws, a ~lie officer with Elections Caruida. '. have: :k~ (;âî:iiloe&:i'wi&ï'p:tasDïaûij~l-lîtrl'lpti;L'~IOZ•~"'*"'*n;;p;;;j

acted ulllle( Ille aU!Iiarity of • ~uclit>tl Older pum.ai1t in Sedioli -487'.D12 of tho CrirriftJal Code of~ afaxéc~Jtj unmandâldolœmhar lenn.3de}lii!IC!e 4!T.812du c:oœ Clillilelli!Cil!lacf., •

on June OB 2011 • " triiif!&iî5 ~ bitliiJIWidiii au 1 à tuWitltWl$i4Ciij

On June 08, 2011 I faxed -a copy oftl'!e Production Oidêr io Ms. ~se Murley, of Bell Canada Corporàtc Secmi1y at. Toronto, Ootarlo, and confinned receipt ofit by ber. . . On June 29,2011 and on July 21,2011 I received material by ëmâil from Tariya Can1panozzi of Bell Canada Ccnporate Secmity at Molltieal, Quebec containing dOCIIl!lCDt$ prcpared on daia alteady Ïn exisiencc in response'tc the Production Order. · · ·

A copy of the Production Ordet illl!itacbcd as Exhibit "B" for ICl1dy n:fcten:C· ·

Exlu'bit"'A"

200 Elgin Street, Ottawa, Ontario . . . · •

The maiecial is detained as it is téqulred for ~e. purposc of investigaîio:o.·

·-te. .. C;tedthlill'altle lb -·lfllyrl/}/lu/'de July· :2011 attheCityot!awa

·.

., ·.·f: 735 1296 30

ORriER OF DIPOstTIOH OFifEMs SEIZEb oROoHN(INCE CONFèRAHT LE DROIT DE":bJSPCàat DES CHOSES SÂISIES ~16 a.-400{1) aflh=CtilnfhaleoœJ ~ar~490(1JduCode~

HaWlg recel-iod the RMpolt 111 ;~ Ju$tit:e ~ FOIIIIS.21itnJl Allan K. Mathews, apnlilic 6ffice:r \Wh :eteëüons Cana&s. ~"" !MW "11'1 111 Rappott aiRI}uge cs. ,.bt~ selon 1a Ftlttrll4 5.2 œ . . . l'ummttu.m.1 CflheOfnlmfCodo. Err Vlllhl d~ ~ 4811,1 du Code r:imklàl

And ha'ling c:onsideted 1hl applica!lon tf A1lm K. Mathcws E1apn!l1110i"prlc ""~la~ de .. Fer •n ortler for !he d.œntfob of ~!N las pré.ut::,./'llrdontltf qw

_allll!ml~or Tolite$ lM c:hœes lii6&tl; cu _ the flilowlng hoo]IIS ulm: nvmel)l fe& thORS .;aislo$ .uNan!el, Il savoir:

OROER OF DETemON 1 ORDONNANCE DE Di:i'EfmON Dt:s CHOSI:$ SA1$tE$.

1nare~>y cnlor!hal Parm ~.{OIIilme quu

X ar bn'ls srm.t, or Toulelles c:hose:s sa~ ou

- the falar,ing bml ~; llamely Ica cho$H selstel ~.-w. .

.·

·. 736 1297 31 ! .

Items R.eceived From Canada Post

1. Bcll Canada Sllbscrlber information for phone numbc:r (450) 760.7446.

2. Bell Can!!da-I.awful Intervention Call Detail Repott fur phone nllll'lber,(450) 760.7449 from March 1, 2011 toMay31,.20ll-spreadsheetl11.

3. Bell Canada Lawfullntervention 00 Detail Repoit for pboo"e nllmber (450) 750-7446 fi:om ~ 1, 2011 to May 31, 2011 ...:spreadsheet#2. .

. .

r. Copy of!'xQdudion ~ sigôcd by Justice W: Stewart, Justice ofthe Pèace in 8Ild for tht: Province ofOntario

7-37 1298

~ 0 0 0.::: ·' ,. .•;· • ot; ... :· .. "'o! , . 0 ·;;. "'~TION:OO.Q!JXAIN lt DÊNONCIA.TIONENVIJ.ED'OBTENÎR .. ' .. l'R.ODUC'llO:N 0~ .· UNE ORDONNANCE DE COMMUNCIATION · - (Secti~n 487.0U ofthèCrim~ Co~e) .~ (article 487.012 du Code ~el)

Canada, Qwada, . Priîvince of On~rio · Pro'Vinœ De I/Ontarlo

This is lhe infonnation 'of Allan. ~~ Les présente& constifu.el\t la. d.énonciation de. (le h~inafter ~led the InformaJLt, of th~ Cio/ of dé,110nci.ateur), de (ville). dans ladite prÔvlnce de/du Oùawa. in the Province of:O~o, a publiç' ofj'icer (piovincc), ___, ci-après 'appelé le dénonciateur, appointed or designated to administer or eni'orœ a partte devant moi. · ~ law ~ wh.9sc ·· dutks incJu4~' .the enfurccment of tbe Çanada $/ecMn: ~i,. takca befureinc.

• oO • The Informant S!YS th# !':~ has I"CI!SOnahle ~ds . Le détionciatcur dêchu~ qu'Il a des ll!OÛÜ ta bcUeve and" dqcs ·11_:J.icve that tl!~ fi?nt~~g .ra.!sonnatiles çle croire que les infiactlons suivantes offence ]jas been co~ ~ely: ont été ~ses, à savoir:

OFFEN~ INFRAÇP:ON • 0 0 •

l'hat a J.let:SOD or pen()~ ~nwn, or~ 2, 2011, at or ~car the City.of Gur.lph and ehewherc in the l'rovince or Ontar-I.o, diQ, wilfu}Jy· P.~~ or cndeavour to P,revent au elec:tor from votin~ in a!l ·. eleçtion contrax:y_to ~~h 281.~ of.-f)ieCtUUulaElecJJoJtS ~ct. . .

And b.Y so doing co~ ~ Dffence ~~ to para~ph 491 ~)(d) of tb~ Cru;uufa Elections Act, s.e. 2000, e.9 as ~ei14'!9; · • .

AND ::

'l'hat a person O!' persop., ~o~ o~ l~M:r f., 2011, at or near the City or Gue.!ph.and elsewhere ln J;he PJ'(]v~ce ot Ontario; clid, !Jy pr.et'en~1Jr contrlv!lJ1ce, lndn~ or attçm.pt to ln duce pers ons to vote or ~ from -voting or to vote- or ref:I:aW ü;om vo!ing .for a puûcular candidate and by so r:loing co~d an Qfœp.ee, conir:acy to p~ph 482 (b) of the Cf1111Uip. -Eler:tkiiS Act, ~.~ 2000, e;~ as amen~~;. · ·

A.Qit that 1he follo~... 4ocumcnts or CÙ11l!. will Èt que les documents OU· données décrits ci· afford evidence respccfiiig the commission of ~e dessous fQumiront une preuve touchant. la • · otf~ce dc3ctibcd, above: . • • pcrpëtrlltion des infractions énum~ ci-hallt:

·DOcUMENTs OR_, !>~TA TO : J~E DOCUMENTS OU DONNÉES ' À PRODUCED eOMMIJNIO!JER ·

Co~i~ eertpied .by affiP,2.-rit to- be ~~-F-!'piçs, DÎ documcntafton or ~tll relatiag to a Vll'gi.a_ Mobile ceU phone, usipg phone n~er.;I:15D·7611-7746, Jocated a.t or ~'rough Bell Canada, 865 , Pb.armllcy Avenl!-e, Tof:911.1.9J Ontario ~pas foDaws: ..

Sales records fo.r thç sale of: a Vp Mobile cen ph,!lne an~ phan'= niiJilber 4Sil-760-774Q that i:i assoÇiatçd io ~ ~ :1\{P)b.e cell phone, believed to be recorded in Bell Ca.qada records ~d~:a.~~~~~ l'outine", inr.lnding reeords'~iing ~-the m~od and time nd p~çe Clfp~~r.u~ ~~J.~e; \

In th\' r:vi:nt ~ .reeords.f~r ~.Il:~ of Vu-gin Mobile cell·phon~C, and phone. number 450- "7.61l-774Ji that is.~~ to tli~ ~Mobile ccll plione are not ava.ilable at Bell Cana~ tben thci name Wi 'record of s~r transt'er to the sales ~ tb.rongh whom Virgm • Mobile ceUphoQe md phD!I.e nwQlJ,e:f 450:7611-7146 was !Jiadeavailable for l!llle to the publi~

• • • " • 0 i Ali subsc:riber lnfo~on for·~ MobUe c:dl pho-lle, pho~e n!lnlblll' 450-760-7146 believed to be ~er asübs~ .~:~tne "Pierre- Pouf%n~t, 'Inclu~g bllt not ~i~ to ali mr.d,s asso~ted to ph911e ~ ~~ed 11.0d. assi~.to VIÏ'gin Mob~ celJ phone, phone n~er 451)..76D~~, and (1) phÎ!nc .tiumb..er 450--761}.7746 gp~ into~ out of semee;

00 '•

738 1299 33 ..t.:: ..... ·.. ~~·. : .• :: .·.:r ., •• 2 ... • !

Call Detail Records fol' phonf!.l!Wf'er 450...760-7746 from the pez:i,od from ifll going into service to ~t§ goi.ng·out of &Crvi~~]}lcb !s believed to be from Mlm:h ·or Ap'ril, 2011 thro~· to and indJXd;in,g ~. 1011, in.~u~ records rela~ to caU origination and terminatlon, call diil'Stion,· ônmatîng ~:~ali: and 'carrier routiJlg information, phone nnmbers called, phqne nlptlbers of caJlsfr..eèeived, and c:aller' ;ID information, and the· Automatic Numbcr IdeJJti5e;1ANI) associiitéd:-i~~ tl!e calls ma~ · . . ~~.r··: - In ad~on to ~e abcn:e, CaD ~~Records for phone nwp.ber .iso-160-7746 ~~for May 2, 2011, inQ~~ reeoro.ri;~~tin~ to caii originatiQn :and temdnation, call du~tion, orig9Jating c:ani~, ~ an!l ~r roufing ~onnation, phone nnmbers qlled, pho'ne nnmben of.~ receiv~ and..~! ID information, and the A,uto)P.atic Nnmbêr Identifier (ANI) associated,:to the ~Ils ma~~. . · - Infol'llll1tion related 1o the. SIM' @J,!lscriber ~dentity Module) c~. assocl.ated ta the Vlrgin · M<1bRe ·çe]l p~~e ~~ phon_C!~~.lWber 450·7~7146, includln,g any lnfol'llllltion as to '!'l'hether ~e ~ "~·~ fp~·~ tquipment ~ther than the Vu-gin Mobile cel1 phone, phone numbfr. 45.~·160-'17~ ~,pjp-chase, inclu!ling a list of d!Mœs, if any, that have been used·ln that. subsl:riber'ucconnt...... :· :.-·. · · · . howet:er sfO.red (dectr.!>ni~, o~ ~~che, o~ paper, o~ photographie film or any other form), .. 'maintained at Bell cana~ !llld !!fiDi~; . . . _GR?p15DS F~~~E.BP 'MOTIFS PE CROJ:1W

' The lDfOIIDa!ll: sa.ys that ha bas 'rcas.:mab!~ fP.'Ov:ruis to believe and does believr; the mattCis dcscn'bcd abo~ and_tbatliis gro.)lllds arc based on 1be fo~ · ....

1~ I. Allan Mathewi the I;tfop:n.am.~ am an Jmoestigator in the Office of the CollliiÜSSÎoncr of Canada Elections (~ ~Ilcf'J and a persan cllarged by the Commissioncr with duties relaiing to tl;le ~Ô!l and ~t pf the Canada Elections Act (1hc Act), Pursuant to ~ 511(3) .of the Cppada El~c~on.r .Act (Jet), f!>r tb,c JllliPOses of the Crlminal Code, lam a Public Officer as~ by section 3 Of.thc l11terpre!(:rfian Ac:t. I have .Pe:rsonal knowledge of the inl!!ters ~ f?.c!s C!'"";;~i'!ed hetem: ~ wheœ sl!!led to bC on ~n or bolief ~ Where so · stateil.l verlly ~ ihem to be truc: .

11 2. I bave bçen inves~ all~DIIS thet, in teÏation to ~ 41 • general fedml eleétion ~paign. in · qw el~ ~o;f:Oul:)~ bo~:~hone calls appamrtly m.ad.e. frQm tt;!ephone D.llliib!lr (450) 760·7746, WCJ:C ~~ f9 ~ elc!;;W~on Election Day, May 2, 2011. These ~ .CODSi.sted of a :recoxtkd bilingqal m,~ 'Whir:b. ·~y ciahried to be .fj:om Elections Cmlada. The ca1ls falscly xeporœ.d thllt 'due ID bi~ voter W$ the clect!lt's voting loca,1ion bad beCil movcd for these indivi.dua}. clcctoxs to anotlu:r lo~gif, at Old Qocbee S1Icet Mail, S? Wyndham St;eet North. Guelph.· Thtiic was DFi:trutl.l to ~·~ The. caller was not rep.tesentiDg Elections Canada liiid oo votiDg locationW bl;énmoYeQ. 'l'!le'elec:tOril callcd couldnOt vote at.thc location~ in the caU. By this ~ Of éan!riyance the c;qB)lP,ct induccd or atll:qlpte,d tn induçe electors to vote or not to vote, or tc vote or DQt to vote fur a. ~cular c;aruti.datc, con1Iary to pamgraph 482 (b) of the Act. Similarly ~ concluet.'V4!fully.sougllf·~ prevcct or cndëavoured to prevcnt ~;:s from voting in the. elect!-on being carried.ouf~?D May~ 2Q 11, co!l1Imy ~ pll:!2glllph 491 (3Xd) of'the.Act.

3. 1 am swearlng fuis lnfQII]:!afinl\ in. ~ of a requ.est :!Dr a production. Ç1";ler to obtain ~en. Canada subscrW=' infunnQtiQP. B1ld 't:an ~~·:~, ~uding call.orlgi,nation ~ ~on œ;a ~ to pbo~ rw,mber(450) "ltiO:. 1746, and for sales transactions IeC0It1s relating 1o a YIIglll Mobile' cen phone lli!d. ~ ~ller.'(450) 760-7746. 'l'De :s:n ~ ~ ~ m the DOCUMENTS OR.OATA TO BE:PR.ODUCED abovc, will assis!: m detetmining tbat this .Phone DUIIlbct was used~ ~);1!~ p'~~ in Güelph Electon!l ~çt. by confumi.ng tbesc calls werc made to 1he éleÇtbrsiif ~~-m·Marf. 2011, and assist ùdqca.1ÏnB other electoxs to whom ~ ~ . .. .!i1J ~ 739 1300 34

...

~~:;. . . .. such calls were mady lhat ~ pres~,;t!DknO'M1 to me. The: rcconls ofçther calls I1l!!de to ~d from this phoru: ~. within 1pe c:l~:~ QfMarch 26 ~May 2, 201"fmay aJso assist in jocating the subsc:n"'bcr of the tellli?lJpn~;: llUlll.b!;r, .cutte:Dtly ·inown to Bell· Canada only as "Pi= ·?outine". · .·· · ·

4. I bell~ that .the o:ffcru:es descri~ ~ lw been coJ!lillitted by ·~ pérsan or pet30~ unknown; . "that the IeCOids to" be proPuced ~qe evidence ofthese offences; ~d thal; the records arc in !he possession or co~fJ:ol of ~["ÇtnP.qa, Toronto, Oritarlo. (Bell)•. This Infonnll!ion sets out the grounds for my belis:f il). - ~. Ap, element of the prçof of the alleged o:ffences req~ evidence of-œlephone calls ~ t!i'~l~ts and oftc:lcphoœ subscn'Qer Înf0llll1ltion ar infmmati.on that wo~d tend !iJ dem~ wl;o. ~ subsr::o.'ber or user or ~er oftbe phone and the phone . nll!Dber might"bc. The docuniems 0!:·~ and tbeir relatiODSbip to Ofre;oces undct the Ac:t arc set out · · !n this Infoimation. · ~· •• ~ · ·

S. The pason. 1D wham thi,s produ$.n ~cr !s addressed .is .not a peman who .has·commi.tted or ~ :iuspected of Qa.ving ~ the a~ces· set out un~ the heading OFFENCES above; or any other offenœs against lillY act of r_ap1t{r!?~;p.t. This pemm is DOt Subject 9f this ÎnVcs)igatÎD!l and is ,reason$):Y bell~·~ bave pos~pifror cpntrol of the material'llB!IIed in the DOCUMENTS OR • DATA TOBEf~DUCED. .••. ·l . . ~ C'ANtWA·ELECTIOJf.SA,ÇT .. :·

• "! 6. A Chief Electoral; D:l;ficcr {CEO) ~ ;!P.P'>intcd by resolgtion of the House of ~ and is :I"CSpOnsible fur" the ~On or ~.iiçtiqns, refcreodtiiiiS and othcr aspects of Canada' s electoral system as set out fu the Canada Elect/.rms A.cf (AcO. . . .. : 7. The CEO aÏ?points a ~ne,::of Canada Elections under section so9. The: duty of the Commissioncr is to ~·tiu!.t t!;e ~"is. complied with and cnfort:ed. The Commissi.oner's powcrs inclupe tli.e power: undcr section 51~"\c( refi:r a mat!c:r 1D tb:e Diréctor of Public Prosecuti.oos and undcr sectiD!l ~17 to concl.llljc a~ agrceiJleOt

0 • •• • • 8. The ~ c# the ~ election,~ is fo ensure tha1 an Canadians h.l).v,e a ihlr and equitable chance 1n be~ apd çlectcd, in Pail tlixough xules·ICla!ing'to condu.ct of politica\ emitics and · · iDilividuals in mspect of e1ectms. -A.~c element of thcse provisions is that ëlcctoxs are fiee to 'vote . · •· .without inletference·fiom ethers in~; 'nat.urc of intinûdation, duzcss, compulsion ar bi means of pretence or conttkmce. : The •.fii:'vaœ is" also !L ~anal Iight :li:iund at section. 3 ·oZ the • Charter ofJilghts"(l(;Id Freedo.ms: · · · Every cili:fén.OJCo;n4àa ~tM. [fghi to vute in on dection ofmembFn oft1u: · Hrmse of Coinmrms or ofa·,ieËislative assembly ançi ,to be qualifled for · membershlp t1wefn. · . · · · .

Oiff!llces

9. P~78l(g)ÇJf~Act~th.at:.: ·

No,persons{l{11~ tnswe-(!1' ~Canada, . ·~ . . (~ wiljùlly p,revénl or end~ tâ [ir:vent" an ~r from wting at' an · election ·· "' . . 10. Subsecti~ri ~91 (2) set~" th1!t a. cp~y~on of~ 28l(g) is mio~ Sub~on 500 . . : (l) set out the p~ent fot'éon\tii.~~ of 491 (2) oft'ence!l.

11, Patagœ,ph .482 (b) of~ 1ct sta:ll:s that: • Eve;7 persan' i.s gu!l!y ~fcm ofjmce wlw

~) by (11l)l pretena or co~ ~luding_by reprennting thal the ballot or the 111li1l17N"of..votin:g at an ~~i;tW,n is not secre~ induces .a per-ron to VOJe of r.efrÎm!from vOttng qr ~ w~#-;rtf;ainfrom vottnqfqr (Z~ candidate atànelecJjlm. ·• • ... · · ..... :·:·~: . . . . l)YJ.~· 740 1301

35 ,. . . ..

12 Subsectio~ 500 (5) S~

BACKGROUND AND·SYNOPSIS OF INVESIJGATION • • • •.. f •• ,\ 1 •••• 1 1 13. This investi~on wes ~ by the CODlll1iSsioncr on May 12, WU as a resu1t of a IIUillber of complaints made on end after Mt!r. ~. 20ll'by electoili to the Chle.f'Electm::Y O:flicer or dircctly to 'theOffice.of.the éommissioner. Ml;y~ 2011 y.oas E!cçponDayforfuc 41 11 fudeml gcnc:I\Û elec!ion.

14. To date we'bave Ïeceived ~~ts that are ~stent in almost ever:y respect. The complaint5 . ·froll!- individual elcctoili des.c:ribe ~a telephone cell· at or aiou:ad 10:00 homs on th!: moming of May 2, 2011, The cal!CF was ~~~lill a reeorded femalc voice giving a bilingual . mes~ '(he caller S!Üd she W(!S ~on bchl!lf of.Elections Catlada. The gist of1he message WBS that due to a projectcd ~in poil tumout, the elcctor's voti:Qgl~ bad becn cluulged. The , DI!W voting .locaficm· gi;vcq to'1he ~ents of the calls W1lS at the Old Qucbcç Street MaU at SS Wyndham S~ NBIJ:h. Guelph. Th.: ç:allèr gave a number to call, which a nUillber of recipieuts of •the cal1s notcd as l:~~!)0-4~4-4456, ifliie elector had.any queStions. The message was then rcpc:ated in Fxench by a difteœnt.f'em!ùc voi~ Almost ân recipients of'!Qe caJ1s who notx:d their call display tünction said the~ number given was 450-760~7746. The only detail on wbich witnesses diffc:r · is whetQ.er the·~ voiçes were IIÎ!!fe or:femal.c. . . •

15. Sevcra.l. witnesses have proyided a copy of the message as :rccorded on voicemall. These will be describcd ~cr'bcl.ow•. The :f:nglish ~received. by electors is as fo~:

... · T1ùs is an auJomated mus~Jiif.m EkctitRis Canada. .Due 10 a proj~r:Jed increlzse 111 poll rvmout Y.CM voting WcaflO!I~ha: b~ changed. Your nrnt vottng /~ion is al the Old Qriebec Slred ma11 al ss.:;y~ Street North. · Once agaù1. }'0111" new pon /Dcatiim Is al the Old Qut;bec·~eet Mali ot 55 ·W'JIIIllham Street Norik Ifyou Tun!e œry . qilestioœ pkase ca1l 0111' hfJtlit:è at l-800-4344456. We apowglze for œry Î1lCD1IVI',IÙDiœ. that this 1IU!I' ~.. • 16. In :fuct 1hc·calls wc:re :not from. Elections Caœda, but Ii!lhcr from a =rdcd voice wbich 'faÏse!y c~ed to be calli.t!g on beÎ!a1f of ~~ons Canada. Ne voti'ng location (polling site or polling sta1ion)'Oad bea1 1Ïl9ved in Ducl!)h' :fur any rcason. J?ach electnrs called with the bogus message cculd ooly vote at.~ po~ station·~ .bad been assigned to them. Polling stations arè assigned tn electoz:s based.ol;l their ~on :.votJ:r:s' List CI:!IJlPlied by Elections Canada. Tht:sc polling stations wcrcride~ed Q.Jl s. Voter's ~rm.a!ion Card (VIC) maiied to electors éarlie.r in the election pc:ri.od. Elections ë:mada did not ~~ individual elcctoili and does not have phone ~ Ïor elcctOts. ·See below at paragtaph · 96/99 for an e:Kplanation of the ·clecto!s list proccss and 1hc assignmem of electors to polling stations witbin polling sites and the absence cf phone caUs fremi . Elections Caneda. · . · · . .

t.7:Between.May211DJi Mw 13,2011 tl:!!: Office of1he CommissioDertceeived a.IlUIJlbct ofcomplaln:ts from in.dividual cl~ càncen;üng ~ May'2, 2011 phODI! calls. In ~on, one complaint was teêeived on bcbalf.of.7 individual ~çkptors by a~cpxesœattvc of&: Green Party 'Electoral District.. A.ssociation.(EDA)·and tb.ere ~one 'anonymoos c:ornplai!l!II\t. 18. On May 31,2011 I xeçeived a üst of7~·~electms whobadrepartedrec:civing bogus aùls to the . Ll'beral campaignofficc in Guelph on~ 2, 2011. Ofthese 2ll81lleS weie also in the nmnbcr of individual el~rs wb,o · ccmplaip.cd to EÏ.Cctions Canada and whom I baf. contacted earli~ in 1he month of May. '!.!üs·~ was provid!:d tome at.myrcquest from 1ll.e offi~ qfFrank 'Yal~otc, the Ll'beral Party œpdi.date e!ccted on May 2. .

19. An. ad#\ional comp~ 'in Pctefbowugh, Pntario Ieeei,ved tb.ë samc ~ :fro11t the samc calling numbc:r, telling ber of li move of lier pri!ling station to Old Quebec Street ~ at 55 Wymlham Street North, Guelph.. . . .

20. Two (2) addltional complllinapts in Wippsor, OnJ;ario received çalls, from tbe 1=e cailing number, movingtb.eir po1J!bg' ~.Qn to another.J.9eafion·: in Wmdsor. J3 . · r· ~ 741 1302

36

·"·· .. • t .. ·' ... 5

GROÙNDS FOR BELIEF Th.e Wituesses- Indfvid~. El~rs . 21. This ~np comprise witn~es ahÎ!ost ull of whol:Il Comp!ained to Electioos Canada of .reçeiving a telephone ~ fidsely c1aiming to br~ Elections éanada, inii:mnfug them thet their palling station bad .been llloved. I have interviewed eacJ: of 1hese i!ufividuals by phone or in person as described below. . · · ·

Susan cŒpbeR

22, ?a ~y 5, 2011 I contacted e~~r Susau Camp9,ell hl:. ~phone apd on May 19. 2011 I • intetviçiwed ber lit Guelph. She told .mc !hat fu!: cali. was recotdcd on ber voiccmail at 10; 15 on May 2, 2011. Campbell CODfinned to me tli,at the Stromm.cr recording (sec below) sounds J'ust like tlie cali she' receiVed: . . : .. . . 23, Campbell teCQtdeçi the numbe< calling !IS 45()...760-7746 frQm ber • ilisplay. Canipbell described the m;ording as· a ~e voice in Ep.glish telling hcr that ber ]l'' .•li statipn was changed. due to ~ voter ~otrt. . The ca!l gave ru::~ections Caii8da nuznbe- -8,00-434-445~, to cali bacle for questions. Shë attCIIlp!cd.to ~ ~~but found it was 1t in seMee. Campbell voted at the polling location assigned to h!::r on hc:r, VIC. Campbell ..,., -; inccnsed. thm: someone would deh"berately. attexupt to ç:oofusc votera and undcrmine democracy in this fasbion. Cam.pbell described the call liS ~ ~ attempt tu influence her vote by co~g hcr. .

24. The lllessage boo'said hcr poU was switcllcd'to thè Old Qucbee Strcèt.MalL She described this as a very inconvçcïent location as it w3,s: cl.owntown. with very fuhlted :parking. ~ tjlc streets aroun!l it were undcr reconsQ:uction, causing 4aflic problems. · .. 25. Campbell. reporÎcd )hat she hlid not d_isclosed votin& inteD!ion to palls!er phoning ~lie< in the elecûop. campaigD, h!rt n~ that he;- }Ulsband, John, was the Ot!:en Party candidate !md they had a ·Gree:t Party~ sign. s0 the~ voting... ~on' could be easily detemlined. . .26. Campbell's assigncd polling site was at the Saint Rene Goupil School, 221 Scotsdalc'Drive, Guelph. ~ ~ 8iJproxnnately 1.41Glom.ctres from his residence, whcn l:Ileasurcd on Google · Maps. wherel!S the Old Q_uebec Street Mail is 2.6 Kilolllctres from.l+cr residence, •·

Ella & 'Richarli Kilpatrick

27. On May 5, 2011'1 contactcd cl~r El}a.and ru~ Kilpattick by tclephon~ On~ 19.2011 i . interviewed Ricbl!rd Kilpatrlck -at Guelph. ;Ricluud Kilpatrick. told me tbat the call was recordcd ·on thcirvoiccmail at lO:Q'7'onMa:y 2, 2011. Ricbanldescnôçdtbe cal1 as anastomattd. b~ cali, with a. fcmalc voi~. The cal} sq~,professional but witp. 'poor rccotding. quality. The message · . said it ~ from~ Canada.. ~ gist of the message was that d\le to high votee tumout, hcr palling sœûotL had been l:Iloved. tô 'old·Qnebec Street Mali. The xccording providcd a telephone :munbc:rto ~in the cVeni of qncs_tioP.s. 28. Ri~d CQnfinned to me that the S1fOIJ!lii.Ct" ~rding (see · below) sound~ like the cali he' recei.Ved. Richmd aJ.so confunled thafthen origi.nating nùmber for the phone cai1 was rccorded on ~caU display as 450-760·7746 and that the l..SOOnumber ~ for Elections ~ was 1- 800-434-4456. • '• 29. Richsnl found the caU ~vable. He çontscted, bk adult son, who lives with·them.' and told hlm the polling sllltion)uid.lleèll switch~:to Old Qricb~ Stieet Mali, ~bis~ was going to vote on the vr.r:y holllc from WJJJk. A -ne:i~boiir "Dave" süb~uentty·toid Kilpatrick the cail WB! bogus. ruchard Kilpartick .said ·mS. abïlitY to vote ;yould bave bcC!l ~ by .the caU. ~ their ~]x>ur-pot tajœn the timc to tell them the ca!,l was b6gus. ·30. Richàro. Kilpairlck said-.thl!t earli~ fu th,c el~tion campaign .he bad teC9ived a call from a live calle:, calling on ~of the Li~~gn; 'J.'hc ca11 was made to thé sailW residcntial phone . .. . . ~ . \ 742 1303

37

,. - •..c· ~~'~!~ . ·· ,. . <. 6

' number wbich received the bogus can of May 2 '!lu: caller askcd if he wquld coÏI.sider voting fur the Ioca1. U."l?eral Cl!Jldid!lte. He sai~ no. ·

31. Thè .Kilpatrick's assigni:dpolling si,.~.was at1hc EJiioti Home senior''s complex at 170 Metcalfc • Stteet, ~lp~ (The Ellington, 168 Mctca!fe): Elliott Home is app~ly 600 mctm frpm the : Kilp_amck remdencc, When m~ on Ooo_gle Maps, wherèa5 the Old Quebec Street Mali is 1.6 Kilometres from their residence. • . .

Shannon Tcstart & Kevin C~

32. On May 5, 2011 I also con!actcd ëlectnr Sbannon Te$rt by 'te!cpbone aod on May 19, 20111 'intet:vïe:wed Shannon Testait llllJi ber spouse, Kevin Cm, at .OucUùL 'festmt reported that she received abogus cali Qll, ber reside~al phone, moving her polling location. The call was rcceived p.raund 10:00 ont® moming of.El~t!on Day, as voicemail. Testmt did not jlear the. message · until the end of the aftemocm. efte.r work. • The' cali was an automated ca1l, with a female voicc. The' m~e Said it was from Elécê.ons Canadà. Tiu: gist of the meSSliS!! wm;. that due to bigh. voter tumout, her·poUing station bad been moved to Old Quebec Street Mali.· Thc.recording .prov:ided a telephone nlllil.Qer ta call in the .event of questions. Testart obtained tb.c number the ~ was made from ber·call display: She aod Kevin Cm: subsequently emailcd that numper 450. 76Q.. 7746 and the l-80Q.434-4456 to ~emselves for the pm:pose of creating a record.

· 33.• Testart and Carr wept together ta .the Old Quebec Street Mail in arder to vote. On arriving there the Eleçtions Canada official grecting electots noted tbŒ VIC information and told them that the phonc·call telling them to co~e to ~·Man was :fiùse: The official told Testait and Catt that they b.ad ta go ta the pollicg location paiii~ on their :viC to vote. BPth went ta 1hCir assigned polling location and vôted. Kevin. Cati Sl}-td ~ had they Qeen n:Jyi:og 'on pu~lic transit ta get to their p~lling location from the Old Quebec Street Mali~ ~ not have made it in tim.e ~ vo~. . . . 34. T~ Said. tha1 carlier in tt:e 9cCfÏ9Jf ~paign she had rcceived acall'from a live ?ùler, ca.lling on behalf of the'Conservative campaign. Th~ call was made to the same resideo.tial phone number. wbich :recci.ved the bogus·call or~y 2 .. Th: caller ask.ed if she would cpnsid~ voting for Many Burke. the local Conservative candiSJ;!te. She said no •.Kevin Cart received 2 calls asking for his voting intention. Both were made :to tlfeir residential.mjiD.ber. The Conservati:vc caller asked if · he would consider-voti:og for Maro/.Bi!rlœ, the local CoiiSerVllttve candidate. Catr sald nt?· The Libc.ral c;iller askcd ifhe W!Juld collSi~~voting fur the local Li~ candidate. Carr said no. ! . . 35. On May 8, 2011 Testait ~d thc.Jllmœ ~ whi.ch was stiJl on her voice !Illlll,,to me. Thé call that I receivcd. is i.neqm,plcte, ~ it S!atcs: •

T1zJs is an autolllilfed message from ~ Canada. Due 10 a proji!L:kd increase· in poli rurnaut JI(JII1' vôli1lg -location has bw!' clianF Your new vottng location i.s at the Dld Quebec Stred 1I!f111at $5 Wyndham~ NWtk Once again. yournew poCJ lacçtlon Es at~ • Old Quebec 8tre.et M.rill·at JS ~ StretrNortk Jfyou h{ll'e Q1l)' ~ please cail : our hotliM at 1-800-434-4456. We ojlplpgiu far any fncoiiVeniena thallliis may cause,

~ cau repeated thls ~ in FICIICÏl. Testmt ~cd ta ~ that the Stromm.er recordjng (&cc below) s6t1Il~ jl;~Sllikc the call. 5hc reccivcd and forwlirded ta me.

36 Testa:rt and Cm's S!>sigued polling site. was at St James Catholic Schoot nis is approximately • 950 meters from tbeir z:esid~ce, w~ ~easurc;d on Oooile Maps, whe:r=s the Old. Que~ SUeet MaU is 12 Kilometr~ from thcir ~cc. ·

Jasôn Newberry-'Andrew.Taylor

37 On May 6, 2011 1 contactJrd el.ector' Jason Ncwbeay by telephone ao4- on May 19, 2011 -I • interliewed JasonNcwbeay at Guelph. N~erry 1'Cp01Wd 1hat he recei.ved th'? cali carly O? .Mar~· 2011. The message said it was fr9rn ~~ons Canada anii that due tp high voter tumout bis polling station was being moved ta' Old Quebcc Street Mall. The call 'WliS from 450;-760-7746, . which he .knew from~ di$p4ty. • .· · • · ·

j· ·. t· 743 1304 38 ------....:..·•... ~. : .

• •• t ,. :-. 7

38. Ncwbet:ry no Ion~-~-(!. ~"9f·thls number, but 4SCJ..7û0-7746 was the number.Elections' Canada inquùy s.taff m~ ~ Cantin recorded as coming from Ncwbeny when he orî~y pb.oned Elections~ ~mplain ofthtl caU, aip~o h?urs on May 2, 2011.

39. Newb::ey leaiJLed-thc cali~ ah%X:from·his business partner, Andrew Taylor. Newbeny-callcd back the I-800 nomber provitl# but theze was an out of service or.simüar me:~Sage. Newber:ey 'and bis wife 4ad ,aheady voted at ~.S.ïW-vance,ppD.s, so the èau Îlid not dircctly affect~ ability tl) vote. He did ~y tJlilt the call stliUc1(.flim. as vciy strange and .that it did not seem. reasonablc that Elections. ~ WOI:lld.. move.. a pqlliocation 1ike that at the Iast llli:qute. 40. ~g ~ electi~n ~aign Ne~ bad indicated on ~s Face book page that be would not be voting ~crvalive. He ~o ~;..=eiving a call from a live: caller. who sald sbe rcpresentcd · the COQServative Party, who ~ed ~If they would get Iù.s vof?. He rcsponded somcthing to the effect "not in a milliçn yeats'' •. Th6;~er then ended the·call. He received 'rooocalls' from. the Liberal Party CBQdidatl; bpt ;taJtll. 9É !h,ese ·aslœd ·ü they could count .on his support The Conservalivc call abQ~ his vpting)n~on, the-Liberal 'robocall' and the b'ogns call mo~ his polling location wcre aU ~:veçl o;:JWI home phonè. • J • .r ·. • .· • 41. Newbcny confirmè:d .to ~ tbaf ~ ~!J:Om= recordi.ng (sec belaw) soUDds just 1ikc the caij he . received. .

42. ~cwbeny's a.Ssimt~ pol1ing site was· 111 the Pri,ory Park 'Baptist ChUICh, 8 Torch Lml.c, Guelph. This is !lPPJ:OxiinÏitclY 900 pletcrs ~~.his ~denee, when Încasured on Google Maps, whereas the 01d Quebec Street'.~ is 5.9-~I?Ylct:tcs from his residence.

4 • ... • 43. OnMey'6, 2011 I.comactcd el~ ~Taylorby telephone sud on May 18,2011 Iipl:etvicwed . Ancùew Taylor àt Guelph. Taylo,r ~ that the cali was xeceiyed around 10;00 &Il the morning .· of Election ~y: 'Ille C)ill was an aùtp,~ caJl, with possibly a fc:male voice. The message said it was from Elect!Qns CJ!IIllda. TJie -~ of~ message was that duc to 'high votet tumout, bis polling sl!lfion hwi'been moved to Qtii. Qu!:bc:c Stiçet Mali. 'I'llc :rccord;ing provided a telephone Illiiilber to caU in the event of ~ons. He did not caU the 1·800 number, He recorded the number as 1·80o434M~6··în a notèbaQk. He a1so recorded the number tbat called. his residcoce as 450..76Q:.774Ç, based bn lûs hom~.ii~ne's caU display :functio!L . . . . . ,• 44. Taylor confirmed tome that ~e S~cr n:c0rdi.ng (sce below) so~ds Jike the call he r~ved

45, Taylor thought thc·call was un~ ~-~Elections Canada would not switclr polling locations in \hat fàshion. He ~cd El~~ and con:fimu:d nci pcllloca$ns bad bcen cbanged in this mmmer. Taylor said that e31:l~~ election a live fema1c Cl!llcr, ca1ling on 9ehalf of either the Co!lServative· P!Uiy or the Co~ candidate in GUelph, ~ed the Taylor bo1lse and askcd hlm if he would consider voting fur the Gonservarlve candidate. He n:sponded no. Botb the Conscrvative pol.ljng ~ early mthe-ell'):tion and. tl\e bogus .caU moving his polling location were . made to bis ~delice phone'. ·

46. Taylœ-ss assi~ polling site was at the Kortright J,>ublic School., 23 Ptamûgan Drive, Guelph. This is apprQXÙijat~)'" ~QO meters frnn:i-' 1J;is residence, wlien measured on Go.ogle Maps, whereas the Old Qucbec Street Man is 8.2 ~onretres from his residence.

Elc;anor & Don~g

· · 47. On~ 6, 2011 I con~ elcctQr ~er Ewing by telephone and on May 18, 2011 I ~ewed . Eleanor and Don Ewin$- lj1 ~Ph. ~~ who is a sejlior, ~ that the ca1l ~ recer;ed at .· . 10:15 or 10:30 on·du{tnoming of-Eict$il Day. The t;all was an amomatcd ~ with poss1bly a · male voice.· Tbe-'m~e sa,i.d i:t 'YBl'~ Elections Canada, an4 ~ due to a high. voter tumout E!ectioris Canada Wa,..p,Wvh:ig her ~~station to Old Quebec .~MaiL E~ called her SOit mT~. Ecr son, whom E~~ed, detetmined. the·call ~not from Ele.ctï~ ~ · ànd tbat her poil locâpon hRd DPt ~cd. Both Mr. and M:s ;s~· bad voted earlier m the electi.ou'ciunpaign so tfu:!t ab~ to vo~':y.'IIS !lOt ~ by ~ c:all- ' ... .~· . .

744 1305 39 .... "' . .:-::::.. ··"·· 11·:::.·.. a . .·... 48. The E~g's' assign!'i polli.ng s% ~ at Harcourt Church 87. Dean Avenue. Guelph. This is approxunately 1.2 ·IŒ~etres :frp:m..~.eir residence, wben mcasured on Google Maps; whereas the 'Old·Quebec S~et .~ ~ 2';/ Ki.!ol!l~ from 1$ xesidencc. · · . . 49. Eleanor Ewing lm not ~ &ey,.P!IrtY· prefe=.ce during the election. Ewing Was concemed · thatthe call victimizcd.o~scni~œ. ' · . . ...Jnllith siro~er 50. On ~ 13, 2011 I.rcceiVed..an e!IDI!l èomplaint from Judlth Sûo~er. I interv.iewed Jucllth Strommer at Gue!Ilh ~ ?-4ay 20, 20U.- ·In ber email Strommer also forw

5~. SJro~ers~eotinllicated lheVIliCemaiJ. wa.s:received~ttl0:1~ hoUIS on May:Z, 2011 and was a 63 second voicemail. from nuniber1tfi-760-7746. The message was ideo.ti~ to that forwaÏded tome by ShaDno~ .T~ The. Englfo:q:~ort:ion of the mes:;agc was as follows: Ihis 1: œr œaamated mess~ fiv.m ·~ (;arto{1a. Due ,; a pro}"ecteti increase in poil lumout JIOill' ~ting ~ocatict: bas ~tit:n··changeg. Your 11ew voting location is at !}re Old •Quebec Street maO at s~ Wyndham.Slr:f!~t Nortlz. ~ figOÎll, )JCJUT new poli location is al/he Old Quebec Streel Mali at SS W~ Street North. !jYQ1l ha!>e any quèJtions please cal/ our hot/me al I-8Q0-43f.41S6. W~ dpp/ogtzefor l111)1fl=nvmie~~ee thal thlr maY cause.

The callrepeated this m~ inF~ :·: ..· 52. The Engllshmessa~ iS comprehCIIS!'W~ !oVith a scratchiness toit Althouih the French mcssagewas gene.rally c01Îlpreh~.blc 4was afa~ sot111d ~ty tlmn.the English. • ...... :·· 53. Strommer said a po!Ister,for the ~ve C8.tldidate Marty B~ c:allcd earlicr in the 'election, asking her voting in~o!L She tQ1f!'t9~ pollstcr !hat it was no~ Marty Burke. Both the po !ling "qljCSÛOn ·~q the bo~ ca)l Of~)'? 1\'CI'C mme ta her residence phone.

s4. StrQmmcr h~ voteg.Î:fl1he.Mv~j'plls, SD fu~ bogus cali did not .affect her abiji.ty ta vote. The Strommem' as~eq polling ~tâwmi àt the Tlnœ Willows United Church '577 Willow Road,. Guelph. This is apProltimately soo:D:!~ from his residence, \Vhen measuj:ed on OQog!c Maps, · whereas ~e Old Quebec Strçet Mall ~A-.? Kilometres from her residence. · ·

Other Gt,1elph Witll.e$ses 55. On Ma)! 6, 2011 I•colltacted el. !Qm De1igiannis 'by tciephone. He reporÏed receiving a. .. recorded caU, possi'b~y a male :vqice, · pding a billngual. ~~ ~ 1he ·cal! wa.s ~ Elections Cana4 The call noûtied ~!hat due to high. votet turnout 1ùs wn had been switched ' to Old Quebec Street·loeation. D~Ug;iannis did not check for càll-dis,play. D.eligientùs is not a mcmber ofany party, b.ut he had ~ ànumbcr of phgnc polls in the campaisn in.dicating he would vote Liberal. · ·. · 5&. On May 9, 2011 elector I.en~~odcd to my qu~ons PY ~ Zeifinan repOrted that ·the 'll811 was receii!Cll'at 10:Q8 on~·~ of Election Day from 'n1.11I1.b~:r 4S0-760-n46, as. recorded on Ws ansv.:c;ing machine..~~ calf was an automatcd call, with what he thought was a synthesized voipe. ~è' m~e saiqz.f{Wa.s.nom Electio!IS CanadlJ, moving bis polling station ta ·Ola ~bec Street Ma1L · Thé çaU p,rO.Vi,'ded a numbcr, 1-800-4344456, to 'çall if th= el=ctor bad futthe;' qncSti.ons.... ZaJ.fm:an lm!l ~pt ~4ii:âied any party prckrence d.u,rlng the election. 57. Linda Payne., did riot leave a phone·llJl!llPer or irlctrcss. Payne's original compla\nt to El.ections CIÙ1ada advised that she had xçcclv~ 1.1 ~oming cali on May ; 2011 !hat h~:r polling station bad · been. cb.engcd. She rcported tjl.e call'àS·: ~m 1-450.76()-.7746.. On. JuneJO. 6, 2011 I obtained Paynt's

745 1306

40 ..

9

ad~s and phoned hei. She recountçd an automated cali in the moming. IepOrting ber polling · t' ' station had beén IIIOYX:d to Qld Quel:iec .Sjreet Msll. She did not believe the caU as she had beard a f m~ :ePart. from May- 1 that such:~ nrlgbt be umde. Payne said. she h2!l not ·displayed any VOting mtention. . . . 58. Payne:s assigoed polling si.te was at-.~ Best Westem ROyal Brock Hotel, 716 Gordon Street, .. ~!ph. This is approximately 3.S.:kilame!I,"es from ber residence, wh.cn messu:red on Google Maps. Whereas the Old ~ec Strcct.Mall is 6.9 Kilometres from ber residence.

59. The name of one elcctor who.complained ta Elçctions éanada onMay2, 2011 was not:recordcd. This individual said he bad reqeived;a 'xecorded. call telling hlm or her not to go to bis assigned .po~ stati~ as it.w!IS too b~. The.~ was from 450.?60-7746.

60: A complaint was t:eeeived from .Philip Zaca:cWx of the ~ party EDA for Guelph, on May 2, 2011, reporting that the Green cam.Paif.\U office bad rcceived 7 cOIDplaints from suPPorters co.mplaill;ing of an à~mated phone' call :fi:om Elections ~ ~ 1hat their polling station had been moveà. H,is complain3nls notee! the call was from 450-760-7746. I l!ave twice contacted :z.aëmïah ll1}d as'ked him f~ the contact i.pfimnation for bis 7 comp!a.iDants. He said he would get the~ peimission to disclo!l11bat fust and ,respond to me.

.. 61. On May.16, 2011 Ben1okela respop.ded ta my query of Philip zâcarlah. Jokela reported having been pb.o'ned at 10:11 hours on May 2, 2011. A recorded:•,loice claimed. to be calling on behalf of Elections Canada. The recording Slliçi ~ d~o to a highcr than expected voter tumout or volume · his polling station bad 'Qeen changed. ta the Old Quebec Street Mall In fatt, Jokcla had just n:tumed til bis r:esiclence after ~ voteil. at his assigri'ed polling station at the Arkell Bible Chapet. The caller idet:rtificalion OJl1okcla's phone indicated the caU was from numbcr 450.760- 7746. Jokela ~ indicatëd. Iate in" tlie election, to a caÏl.fi:om a Conservative party caller, thal he would not be vcning Conservative.

6i: Jqkela 's assigned polljpg site was lit Aikcll Bible Cbapel, ·39. A.rkcll Road, Gueipb. This is approximately 2.4 kilometres from his. residence., when measured on Google Maps, whereas the . Old Qtlebec Stœet·Mall is 7.9 kUo~ from:Qis residence. ' ...

63. While in ~!ph to inte;:vicw witoe~ 1 also 1~ ofi a.ddifio!llll cali reclpie:cts, Fem Roolœ and Jo~ Kcir, whom I subsequcntl.y SP.Q~ wi1h !Jy telephone. Rooke repoxted receiving the bogus caU 111 either 9:55 qr lO;es on the ~.of May 2, 2011. She df;scrlbed the ca1l as pcr other witnesses above. She was upsct by 1he cali, bu! waJked to ber polling station to see:what tbe problem was. Shc found she was .able to vote ~ ·c;li.d so. Rooke reported being poJ.I.ed by 3 parties prlor to Election Day and tb.at she told bath: ·the -conservatiYe and Liberal Party cal! ers tb.at they wOuld not be gettinghervote. 'Fhese cal1s came tO the sameresideoû.el number as the bogus cali ofMay2, 2011 •

.• 64. The RQoke's ~gncÇ. ~ site ~ at tho Ha,rcourt Church 87 Dean Avet:JJJe, Guelph. This is approximBtely 1.4 Kilo~ fi:ôm tliei!: residence, whell measured on Qoog!e Maps, wbcreas ~ · Old Quebec Strc!lt ~ is 3:5 Xilometl;eS item ber residence. · •

65. Joyce Kcir bad wrlJ.ten a 1ett.er of con,plaint, dated May 5, 2011, wbicll sho gave to the Retuming · Officer, ~Bu~ who was a. social acquaintance and which Budm bad giv;n to me (see below). ~ir coo.fimlcd the.letter as wrltten Qj hér, She :reported receiving the bogus callatl 0:09 m1: May 2, 2011. ~ descrl.bed the call as P.cr· otbcr witnessel! above. Keïr:s voting ÎDll:llÛ011 could be ~ by a Ll.'bc:xal campai&,n sign onh:rlawn.

. 66. The ~ir's assigned polling site was !11: the Prim P~Baptist Church;S Ton:4 Lane, Guelph. This . is approximately 1 ki.lQmetre from their :œsiden~ when measmed on Google M.ap:i,, whereas the Old Quebec Street~ is 3.9 ~o~~. from hcnesidence. . · . 67. On May 27, 2C>l i 1 spokc witp. Davg Hudson, ~ ll'biatim at the Univ~ty of GuelP.h, by phone. . HUdson had becn inte:rvicwed by t"qe CBC raJ1i.9 show The Current. broadcast .May 11. 2~11 · during wl:!ich a recording of the voit;email message from Hudson's phone. 'movmg tlu: .polling station to thp Old Quebec Street~.~ played. Hu~ adVÎlled m; 1hat·hc had called Electioos Canalia. to tepPrt ~ csU, but no SJÏ!lh report has made i:ts we:t to me.. The call r~rded OU: Hudson's voicemailllllli broadéast li/tbe CBt: is identical to lhe Strommcr message (abovc). . ~· 746 1307

41 ------·------___ ...... 1 •• ·· ...... 10 .·

6.8. Hudson ~rted ~iving 'the call at 10:12 hours on May 2, 201 ~·. as a voicemail. Hudson confirmed that the ÇBC xccoz:ding of the voicemail was bis. Hudson said ~ found the message and iYOuld ~ave f?~ow~ its insttûctions but for 1he fact 1hat he bad reccived wamings from. IqlUt.able commumty sourc.es, such as a campus wi.de email from the University of Guelph !hat the calls wero faise. · • · · ·

69. Hadson's polling ~c was at the.La.urillC AVenue Public Scb.ool, SO'Laurlne Avenue, a block from his bouse. '!'hiS is ~SQ metres from ~'residence, wb~ measured on Google M.aps, whereas the Old Qneb~ Stteet MaU is 1.9 kilome~ from his residence. . · ·

:· ... The :wltnesses-The Peterborough .and·W~dsor ~ .

70.11$ group.CO!Jlprise Witn~ wl!c compl:$ed 1!> Elecôons Capada ofxeœivlng a telephone cali ·:liùsely c1airoiDg to ·be from. Electi~ Caruida, infonning them tbat tbeir polüng. station bad bçen ·moved. Their acco~m!B differ to son:ie p~gice fu:i;n the accounts abovc, but relate to gie samc' calling numb:r, 450-76~ 7746. !baVe intclvicwed. each of!frese individual!! bypijone. .

71. On Ma.y 11, 2011 I n:ceivcq an ~ çomp!pnt from Diajla. PolloCk of Peterl>orough, who bad just beard an mtetVÏeW Oll' GBC'Râ~o conccming the bogus ca1ls znadc.in Guelph, l?ollock reported receiving ~ sa.mc cali, frcÏm 450-760-7746, as disp'!Jtyed on ber call display. The cali ·was as desciibed by the Gn,elpb ~. moving ber polliDg station tp Old Quebec Street Mali. .· }?ollack said hcr son bad been at th~· Uni~ty of Guelph for the 2008 general election and bad voted .1here. · She speculated !hat BDill.ehow his Pcierborough phone number was associllted to his voting in Guelph. This cannat be ~sqmtiated at. pment. · .

·72 Severa} ca!1s from 450.760-7746 have also been reported from 'wfu;lesses in W'mdsor. These ditrer from the Guelph ~ence. . . . . 73. The :fust was to the fesi~ce of Joe.C!!o~ Mcmber of Parliamem for Wmdsor-Tecumseh. ·One May 11, 2.0i1 1 coaW.çted Mr:· ~àmartm. He advised that !he cali to his residene,e was ~ by his wifc, M~ C~ aroand 10:00 hows on May 2. 2011. The calling number as rccotded on ~·Cl!!l dispJey was 450-760.7746. Joe Com,arlin said it was a recorded cali pUiporting to be from'Elect;ïol(IS.~ llJOvin& 1heir polling st.e:tion to a location Maureen Comartin CllllD-ot now·recall. ~n 'Comarti.n clid not ICCOgDÎze the name of the new polllng location as cine in ~e W'mdsor-T~ch ell;Ctoral .distrl.ct. Joe Comartin said that the samc mnnberwas :rccorded 'tly Andrew ~cf-voy who also r=ived a call (see ùnmediqtely below). . l' 74. The second ànd· third Wmdsor caiis were made U: Andrew McÀvoy, a long time whmteer for Mr. ~·s campaigns. I spoke ,wit.h 'Andrew McAvay by Phone on May i; 2011. He seid he zec;elved 2 caUS on May:; 2011 on his'~ce phqnc. The fust was a recordcd ~essage of !1 male voice tel1\ng bim 1hat his_polling 19CI!fion .bad changed. · The .recoding Çiâ not give an altematè ·location, but instnlcted hlm to cali Élections· Canada. ·

75. Within minutes McAvoy n:èdved a cali on his pernonal cel! phone, from the 450 = code. He l.ater wrote the numbc:r down from his cali display and tmncd it in fu the Com.a11in. CllnlpiÙgn office, This caU was fumt a live, ll!ale calle;-.' The caller said he was caUing from Elections Canada. McAvoy pressd the male 'for his IIll!i:!e· 'J;hc caller clairru:!i he was not pemrltted to give bis name but that :pis Elccti.ons Canada identification 11U)Jlber: was "1124". The caller S!IÏd tbat Mt;Avoy's poli location had inoved to 'the ~ SQciety's building. McAvay. desèn"bed the calièr's voice as llllp!'Ofessional. . in the way he co!IIIIlliiiÎ.can:d'his. message. '76.Mc:A.voy ~ncluded trurt the caller was tmawaœ that McAvoy, who.luÎd lNed in the Wmdsor­ . Tecmnseh ~ dislrlct for the 200!1. general c:Iéctioll, btld·rpo~ since outside the W"indsor­ Tectnnst:Ït boundaries. · N~crthcless "tl:i~ càner Isnew Mel}.VÔy's previous. ad~ and his persona! cen number. . : . . .

•77, I bave since ~from Mark .Mopre, the~ Officet in'Wmdsor-Tecumseb. that no polliDg lo!;a±ion 'Wll5 movcd, and tbat tb:~Aizhèimer Society's building at 2135 Riçhmocd. Street. . , · V(mdsor was not a poJ!in8, !~.on.' I ~ also determined from Pi~~ qdefHuman

~ 747 1308 42

'11 .,. !~

~. R!=sources Offiœr for Elections ~d.i1,:that:1he Canada the identification n.Ï.nnber "1124" Jl18kes no seme· BDd docs bot relate to the cmp_IP,y~ lllli!lbc:ring system in place in the Public Se;rvice. 1 bave a1so ~ :from ~ Lev~ AllSis1ant Dirëctor E1cctoral Financing, tbat the number is not ÏI! Elections Clmada'stempmaty~oyœdatahase. . . The LibenlParty L~ . '= 78. As noted !ÙlOve, this list WBS· pmVi4!Ïd to me at my request :fro;n the office of Fnmk Valcriote, the Liberal Party t:andidate eleéted on Mey 2. 1 asked for the list aftcr reading ~ reports that the Libel:al ~in Guel.pp. bad ~ ~laints from clectors of the bo-gus éa!ls I have not called or intervicwed:~ 79 ~:)?~ho complajncd. of the Çogus e:all to the Liberal campaign pfficc on Ml!.Y 2, 2011 =xcept as fQllbWç.· Conipl.ainants Kilpatricl:: lll!d Srol'lll:ner on the Liberal list aiso comp~ tQ EJ.e

Good~ receiv.,c;d severa! ça1l$ ~v.èr a 4 day pcriod telling her 1:hat hec polliDg !~canon bad · c~ frol!} the West End ~on Centre to Westwood SchooL He:r ~ diSJ2lay said' ..."Conservative" q~ shc cannot re~ a nmnbe:r., Th.c Goodyears (3 çlectms) wcnt to Wcstwood Schqol to vo~ but we:rc ~·~y and told to vote at the pol.Ung station noted on their VlCs - the West EI!d R.ecrëafum. Cen1I;c. ·They did so and voted. ·The Goodyeaxs bad not cfisEla.ycd a yoting intentiOl,l.. • • • •

Husman ~iv.e.d ~ appem ;ta bave bcc;n the standard rccorded c;all in the moming of Election Day, ~heroftlic~ofhe:rpallsite1o Old Qnebe<; ~t=tmall. Later, betwl:en 2:30 and 4:00 P-llL 1hat aftcmolll;!. #e gQt a second teCOided caU. claiming to be from Elections Caœda, sta$.}g 1hl!t her po~-~~ wa5 now closed. He:r COIIect polling ~ was thé West ;rut 'Rccreati!m'~ ~ H~ (2 e!ectors) voted at he: coueçt poil site as 1hey did not belicve1he calls, 'TheH~\!V~intentionW.:S ~ by means of a Li'bcrallaW!lsigo. •' ~ali received what'~ If> have beel;l the ~dard recorded calJ. in the mociing of Election Day, telling him of the l!fC?VC of his pol! site to Old Quebc:c Street mali. He votcd Ill; biS assigo.cd pqllii!g site as he. did;iiot bc!ieve fuat·ElcctiODS Cmtada would moye poling sites in that fashlon. Eatl~.in the electign campaign Aspiœll bad respo;lde41o a phone poli indicating 'ail ~011 to·vo~ Lib~. He~ recall which P.3rtJ sponsorèd ~phone poll:

The wi.G~esses- Elections Clina(!a Staff

79. A singl1= Retuming Officet (RO) is li!Jpo~ted by the CEO fur each èkctoral distrlct. ·By subsecti.on .· 24{2) pf the Canadlt fl~ns Act, a RO is responsible for the preparation for and conduct of an election ÏJl. thcir elc;etoral district. ~ ~udra was 1hc RO for the electoral district of Guelph for the '41st general election. .

ÀnneBudra 80. ~May s: 2011.i ~ iWh. .Anne':Bodm, the RO, ap.d i ioter:v.iewed heron~ 19,2011 ~ Guelph. Amongst l:!èr ~ Budr.!l·~ responsiblcr·for ~ polling sites 1o be 1~ n.ear e!ectms who would ville at that.site, as P.(lp:lied by V~ Idcniificati011 Cards (VIC). .She descn'bcd a "poll"' 8!1 a single gràupmg_ of eleçtôÏs;1,Y geogrspbic location, sucb. 8!1 a stn:et, "i"Ï1:h the .poll staff . consisting of a Deputy ~ Ofti~.(DRO) and one or more pail. clerlcs,,with a. single.ballot box. A .PQllD:lg loc$ion or "polling stà1ion• would be a single geographie location havmg from 1.to 15 polis locafcd ill it; wnb.'ls polls~ an ljiCilll p.cd c;o.mplex. Pqlli.n,g locations with 3 or mon: pblls wou'ld a1SG be staffcd with·:a Cen1ral Poll Supc:rvispr (CPS), a ICl{isi.on o:fficer end an. infomu!l:ion officer, in adçiiûon io the I?~O mxi'onc or mon: P9D cl@ llt ~poil (ballot box}.

si. ADne Budm descrlbed Old Quebec ~ !vlal1 as one of~ polling 1ocap.ons, prlmaèly for clectors living dowritown wi~ ~ cl,isianèe. Sbe indicated i1 was a poor l~p~ for e!cctors ~elling bY vehicle, as~~ was vr;ry JimüeQ;.!lCCCSS was dclnyed by cxtensi'le ncatby construction and • ths,t pcl!mg ~·-~· ~ th\7c~'~twas a commercfal mall 0ld ~ Street Mail bad 4 polt;M stations oô:-Efécti'on Day. ·:• """6 • • . . ,J;; 748 1309 43 ·--~· _..__, .. ···- l .

..' 0 12 ..'

82. Am: Budra statëd that the ll:laUet of the ~ calls. to electms purporting to movc clectors' polling location to Old 9uebec Street MaU w.as a significant problenfwi1h the election in Guelph on May 2, 2011. It thi-eatencd to ovc,rwhelm 1he RO's staff ability to respond 'kl'it. She advised tha1 ber ~ti~ Adele M~~e, \\ho -..wuld nonnally Înooitor up to 4 ÏDconÛ!lg phoJ:).e !ines, was 0 unhble at times to deal Wlth Wl th~ Cll!;ls nom clecto~ f!bout the bogus caU. witli. ovci::tlow calls going unanswmd. Si;le noted that routine :alectiaœ Canada roonitorlng hari advised ·her that 35% of· _intoming ca1ls to fue. Guelph Retumlng om~ wentU!IliiiSWered on ~i

83. Budra a1so got feedPa.clè fiom CPS staff conccming the caiis. Shc provided me with 3 reparts from CPS refeirlng to the probltm of ~ts attemfing attheir properpolling loeations, who bad: reœived. th; bogus calls and who ~ unèasy abolit wh= they were ~sed to vote. Some of ~ . el~rs bad g,one to Old Qoebeç ~ Mali and were now presenling tbctnselves at tlieir propcr polling location. Therc was no rep~ protoCol in place fur CPS to teEOrt baçk to the RO, but in the 3 instllnces above 'the CPS repo.nç_c(~ tjleir qwn initiative. · · ·

84. "Budra a1so provided l;Ile with th,e ~ir l~r, letter rcfMed t· above, :from individuals of hcr acquaintance 1~ a complaint wi~.Ela:tions Ccilada, through her, conceming .receivin'g a bogus cali fi:om 450.760-7746 IIJQving theirpolling station to a "busy downtown mail". .

L'ande Ro~enberg

85. On May 5,2011 I ~ ~LaurleS:q~ theCPS at tbl· 11d Quebec Street Mail on Election ." Day. I a1so met with.4urlç Ro~ on May 19 at Gucl· :. Rotcnbcrg bad 4 polis at 1he Old Quebec ~Malt, 'WÏth ~poil ~ble forup to 400 t•: 500 poSS!.'ble electœ:s. rn addiûon to the poils, cach with a DRO and on~ ér"mOiè poil cletks, he bad a revision office:r and m:i information officer on site. ·

86: Rotenbetg n:portcd that as soon as *:polis opc:ned at 9:30a.m. electpxs bcgan appeerlng tclling bis . staff that they bad recei.ved a pho~ ~ 1hat their polling locati.on bad beën moved to the Old . Quebcc Sttcet siW, lUld ~ co~ were preséntiDg themselves to v9te. They could not vote · at the Old Queliee St=t site, as eaèh pPll œn on! y accept 1hc votes of the individnals assigo.ed to it, or who cyuld prove lhei ICS!de v.iitpin·thatpoll.'s ~eographi~ catclun!lllt Conse;quently the votets appearlng at the D!d Quebcc Stn;et ~1J4!g location as a ~t of the bogu$ phooe calls could not ·vote there. A!J the problem.sur:fuced ~ckly, Ro~betg III!d his infonna!ion officcr wem able to organize a system wh.e:reQy the infu~~pn offi.ccr., who gteetcd most clcctws as they· C!IIIIe in the·. po!Jing station, cbccked their VICs. Poli staff could thCD tell the misdi,rectcd clectors they could not · ~ at Old ~ Street MaU and bad "'te~ to the polling ·location·on tpeir VlC. · ' 0 • · "87. Rotcnberg estimated that over the day bc:twecll59 and 200 ClectoiS pl;CSChted theo;tselves at Old . • Quebec Street on the basis of the bo~~c: callll!ld wete unable io vote 1here.' RDtcnberg noted· that the Old Quebec Street site 1Jad""àjjp!QXimalc:ly 1000 votes cast by clectors who wcrc properly th=, so the~ populalion Wmj ovcr lSVo.

88. He observed that m.aey of the Illisdirected votcts xesponded wifh ange:~: that a dirty trick hsd been. ·plltyed. :f..!any wcre uj,set. Sqmc clcciO}p just slomlcd out of the polling locatio_n. sèv~ rlpped up their VIC, indicating to Rotcnberg an:jntention not to retum to thcir proper po!ling location tq vote;, . · while ether.; :œacted with a dètetrDînatioii to go to thcir proper pôlling stmion and vote. He notcd a number or"xiùsdirecled el•. were~ with walkc"s, otbets werc-dro.pped off by frieods anil' some with cbildreil in strollers;" so th!lt the lev cl o~ inconveaiœ~ to electors was signipcant.

Adele McAlpine · ·.

89: On May 5, 20il I speke with Adele ~è:Alpine, rccepti.~ at the RO's office in Guelph on~ 2, 2011. I also met witb. Adele ~ on Ma:y 20, 2011. She ad:vis~ that shc worked BS" ~onist at the RO's office froJ;n ~ly 08:50 hOurs on May.2, 20lllmtil past midnighl . ~ ! McAlpine said ~ as" saon as sbe aaiVcd for work. she was immdated ~ calls rr:m votcrs ':"ho :pad. xÇCCÏvcd thc bogus caU md who w!JPlcd to know mote about the ~ of theil; po~ location, "which was the fust McAlpine bad h~· "of the II1ll1tcr•• SlJ,c ~Id c:lectors to vote at the address on their VIC. which èach eleétor bad ~c:cJ py IIIIIÎ1. • • • rJl:> · • !;.; ~ 749 1310 44 -· ··- ___ , __ _,__,__,___ _,__...... ,__

1.3

9~. McAJ.P.ine expl!Ûlled ~the recepû<Ï~ ammgenfent at the RO office involved 4 incoming phone ' !.ines. Sbc ·aften ~d not kceP. up v4fu the volll!ll~ of !ncomi.ng calls conce:cning the move of clcctoxs 10 the Old Q!!e~ec Street M.alL • 1 . . ' 91. ·Mc~ine !IBid ~:C~Jlls Wef!? very ~tfvc 1o her own woijc as a receptionist (~ m.issed ct!:.) and sh~ could S?JSC·from thpse'~'Îier tb,at the bogus phone cans were veryjdisturbing to the electors calling.ber•. She i:eported ~the voltlllle of calls from electors ~ oiff after noon, but pickcd up considerljbly again whcn -people 1>egan coming homè fram wDik and!pick.ed up voicc inails of the. bogus calls. • ; 1 • 92. McAl.pine said that the ~rs w~ pho~ the ~0 office and who bali :recor4t'the number of the~ aU teported the same num\l;ef'as the source of the cal!. McAlpine trl.ed tJ?e Illl!llber berself imd got the 'not in service' message.· Sqe does not nowrecall the number. i.• JudyWard · l

93. ~May 5, 2011 ÙpokcWjth.J\!(lyW~ancmp!oyee oftl!c Retuming Office f'oliÇiuclph, who had ~ a traim:r of Dcputy Retuming Qtficers (DRO) and Poli Çlerks in the 1*·up to 1be gcnetal election, and who was a~ qtiii tro~le sbooter on Election Day furpolling sites on the north sideofGue1ph. lalsomctwi1hiu4Y,:Jl~onMey 18,2011.

94: Ward wa~ frQm. 08:45 hours on ~,Y. 2 througli to 01:30 hoUIS on .May 3, 2011; Sbe advised that ber dUlies took be> 1o 13 or 14. p9ll.ip,.g stations in. Guelph to assist DROs aild PoU Ck:rks as neceSSlliY, WI!Id sajd her visit.s 10 ~ fust 2 poU locations she went to ·w,ere U(leventful, but !b?t whcn sbc reached ~ tlilid ~ hea:r4:~ DROs and PoJ]. Clerk:; about electors who bad littended at IÙ\: polling ~Qn <:9-~laioiDg ofli\i..\?ng teteived a cal1 ftom E\~ODS Canada f!dvising !hem their :golling locafiop. bad li~ movcd t?·~ {)Id Qucbcc Strcc:t MalL She continucdj to hear about this froFII DROs aoi:l. PoU~ unti1 ~~nd oftbe vote at 9:30p.m. S,be'observeditbat many elcctérs were ~ous and CQncemed abQuttll.è C?:li.and UDSI!rC. ifthey w= at the correct polling ~on unti1 they wc:rc. allo~ tQ c:ast tbeir ball

95. On"May 19, 2011 Armi: Budra bad~ provided mc with a handwritten report of May 3, 2011 from Gillian Buclde, a CPS res_Ponsibtè for S polis located at Maxy Phelan Catbolic Scheel, 8 Bishop Co~ Ouclppo I subsequently CQ~cd Buckle by telephone on May 24,. 2011. Buckle reported that betwcen S and 10 clectois ~.Mary Pbclan Scbool teparted having reccived the bogus call. In her wrltten report shc noted the pruine number give:n 10 ber by tbi:Se electors as beiDg the source of the cal1450..760-7746 and the nuïnper fur furthcr asSistmlce gîven in the message 800-434-4456. Both numbers are. consistent wit1i the accounts of the 'WÎIIIeSSc:S above. Buckle's infunnation is xegarted in this Jnfenn.ation as' an eiamPic of adèffional reçipients of the bogus calls, as nOne of the e:xamples abov.e reW,.tè to c;lectoxs '!O~ at~ Pbelan SchoOL

·Keith Walbr

· 96. On June 2, 2011 I spoke witb..~i~ Walkcr, Chief' of Systems Devclopmcnt and Tcsting, in Field Rcadiness, Electiau Man.ngemcnt:·:·walkcr explaincd that Elections Canada maintaius a National R.egister ofElectors. which is ~ scvexBl times èach year. Eaèh elector on .the list is assigned_ to an electoral dist:tict and a poU!,ng division based on· tbèir addresscs. Electoral' di'slricts. (or constituencics) are divided intt.ï'-l)Olling divisions, wbich is e. geographie area containing llPpÏoxh;nstely ~50 in.dividoal el:ectQ~ 'I'bcre arc approxima:tely 2()9 _polling ~~ons in ~ electo:ral ~ct A:5 wei!. rctJ,trp.j~.-of!icers have ~ inventm:Y of poss;ble po1ling. Sltes at w'h!ch ··· eleetors will:vote. -'nwse sites-~·~cd·at-the til:De of m.ç:lt:etoral event. Within each pol~g site are one or marc polling ~~ O> individua;l bapot boxes, com:spODding to a polling • . division. . '

97; Voter InfoiiDl!lion Caxds cVrCs) are llllliled to individU!~\ êlectots'bctwecn ~Y 2611!ld day 24. of an e!ectipn.. idcn~ for each clectqr iheïrpalling. site ~ polli.ng ~tion. · ib' 750 1311 45 ------~

l4

98. Wa.lkcr confumed that each'polling ~on ~ourci have: a list qf elcctots contûning the names of · 1hose. elèctbrs ass.igncd ta .thàt ~ polling station. On1y fhose elec:toxs assigned to that polling ~on, ~who coul4 prov~ they now rcsici,e'within the geograpbk bounàazy.. oftbat polling . s.tation could vote~ that station.

Sylvie Jacmain ·.

99. Sylvie 1~ ~tor ofFi~ld ~ Electlons Capada. bas !ldv}sed me l?Y an email ofMay 9, ·2011 tbat Elections ~ çloes not Cl?~ elcctors by~ to change a polling location. Ifa change !lf polling smtion ~ ~. for eiœmple by the sudden mailability ofa po ]ling site (\lui!dirlg), the ~ would dane.by,'ân R.O zePrlnti!lg and sending ~ VID! to elcctors. or, for last ID.inute i:b.a:oges. tbrgugh media b~ and pCISonally by Blectiol;IS Canada staff at the closed polling loca1iott.

Other Invesf!gation

100. On May 4, 2011 I Clllled 1-8{}(}.43-4456. Il:eacbéd a recorded message tbat this nU!Il.ba was .not inservicè, ·

101. On May 4, 2p11 I also.conductcd In,t.crnçt checks on pholle 4?Q-760-7746. I discovc:red tbat atea code 450 covers !]mt portion of the' province bf Quebec aroup.d Joliette, southeast of Montreal. · The pho,ru: Jtll1lfber is J?Brt of the ~~ Canada system. No subscribc:r infoanation could be

d~d. 0 •

102. .Al$o on May 4, 2_01 ~ I contacted_ D~e Murley, a: Securlty Associ.ate at Bell Canada Coxporate ·Securlty. She initùi)ly as~ tbat I !àx details of the llature of III}' inquiry and the statutory autbority undel which 1 was investi~ I did so. I spoke witb. Penise Murley agsin on May 9, 2011. She a4vised me t'bat phone 450-760-7746 was a VlfgÏ.n Mobile cell phone. Virgin Mobile is ~ subsidimy of BelL Bell retains ~ginatian and t=ination rec.ords for phone 450-760-7746. These are also .known as CaU Dcj:ail' Records (CORs). These Bell records will disclose each · number phoned from 450-7~0-77!16 pP.

103.·Dexû.se Murley also iodi~ that ~phone was a pay-as-yeu-go ccli phone. ln othcr words thc:re is no phone plan attlched to it, nor ~·~ts billed. to a customcr, rather a customer buys ûme from a Ietail outlet ànd adds it to his phm)é. . For this reason sbe Sllid Bell d9es not have a subsc:rlber adq:tcss. She indicated the phone ~·oP.t)incd:in.the lll!ID.C "Pim11 l'cutine".

104. i co!lillctOO Deoisc; M:urley, at Bell: Cm!ada Coiporaic Security again on Jll!le 6, 2011. She confumed they wou1d be able to ~ CDRs :fur the phone. She confimled 1hât ~ cell pho:oe ought to have a SIM chi.p (SIM stal)(iS. fm Subsco"ber Idcntity Module) wbich amounts to a serlal .· IIIli!lber fQr the phone. It may be JX!~'ble to ~ whe):bl:r thiS chiJ? l:ias bccn moved into othc:r telecom equi~to IIlllkecalls, ~ up6n ~ ~cnt used.

105, DeDise Murley confimied. again '!hl~; Virgin Mobile is a. Bell ~dimy. ~ ~ canfin:il tl!at Bell will have sal~ teeords ~ci~ to 1he phone. This will depe:rul on. whethc:r the phone w.as · ~ directly from a Bell tetail ..ctutlet. or from a :rctaile:r provider who sells phones from a Varlety of supplictS, ~ as WireÏtsl: W&Ye. She expects tbat Bell would ICtain c:ustomer sal.es · recérds in the fomle:r ~le;. w~ ·in the latter Bell would likely OIÙY, ~able to indi~ the xetailer identifiL:atien. IIi. ~ llltler ~ a :furlhc:r production ortier would b.c: J:!eeded to obta!n arry poSSl'ble customer salc:S xecords.

1Û6.' It !1Ppe81:S to mc thal: ~ name "Pierre Poutil4e" is an ulias adoptcd by a petson C1r pcrsons to · obscure tqc actua1 ~ pf the ccli phÎltie. 1 believe thal: the origination an4 tcrmiDation or CDR . . x=rds for phone 4~760.7746 Wi!J.·be ~ to tpis investigatÎ.Oil for~~ tc:BSons. They will· be able to .confinn the evi~1:11ce of th; '\\'}tnesses above as tQ the source ofthei:r calls. The records will a!so provide anÎm;lber of ot!Jl:r.~gne Ïmmbeis which Ibelievc wm a1so ~ed with the samc . ~- 751 1312

46 ------·---...!---'·-

15

fulse in~ mÔ~ c:lecto~ poU~ stations tn< the Old QUe~c •Snect Man," and ·finally ·the reco~· may also i.ndicate .o~ ~ called by or calling. io, 450-76,0·7746 as paÎt 0~ the: planning of1bis ~e. Thes~ l!ddifional Illlliibers will provide investigativ.e avenues to follow to· determine the user of 450-760-7746. Simllady I belic:.v!: !hat the sales ICCOrds associatcd to the phone would. provide. investigativc 'àvcnues to follow u; ~ tj:J.e. uder of 450-760·7746. 107. On May 1~. ioll Simon RoWtarur emailed tœ Commissiàner's Office offerllig assistance in this matter.· Rowland is a fu~ New f?emocnùic. Party (NDP) Candidate in the generai·de:ction of 2000, ·and is now the Çhl~ ~ccutiy~ Officcr (CEO) of Direct ~ Innovations and Direct Leap T.e.c!mologies, Inc. (Direct lel)p). Direct Lcap was involved in the 2011 gcoeral election by providing teiep!lone services to the w~. DirëGt T.eap providc:s phone ~ces to a ll1liilber of non. profit organizattons. · Dùect Le:aP aqd Rp~· are also involved in tecbnëlogical dcvelopments in the area ·of call CCD,ter sysleJns, tc!em~sin& lllld telecom produCt developmC!lt and nc:twork . engineering. · Descriptions qf titcïse ·are pul?lically a:vailablc on the lDte:met at wWw .smomowland.com III)d www.rurecti~.c:Omlabout-foundcr.com. Rowland is bo1h a partisan . participant in the political process l!n&'iilso !l subj~ matter apcit. Mr. Rowland .W fàmiliar with . , the public complainll! ftom the m~.a co.~c oftbese Guelph ca}ls: ·

· 108. Rowl!ma bas bec:n oÜt of Canada~ the election. 1 subseque:ntly received a further CIIlllÏl :from Rowland on May 24, 2011 and I spolce-with bim by phone on May24 and again on Jtme 7, 2011, In his ~ and in .our 'coliVersations· Ro~ statcd that p4one companics maimàin Call D=tail Records (CbRsj for billing ~ iiJcluding routing infnmratioU: such as when a phon~ call passes from: one cm:Iicrto miofhèr. }'Jé.iS of the viewthat fullowing this reçord bac:kwards could lead to the CJÇBCt originat9r ofthe cali in qpon.

· .: ·109. A php~ company P.rovi~ local ~cc to an elector, or td numbcr 450-760-7746, wiÎt bave a CDR of callS'cntcring·or leaying their Ïlctwork, as weil as recol(is of calllcngth, start and termfuati.on tlm~ and phone nurnbers coniiu:teçl._ ~ CDR will also ÏD.Clude caller ID data includlog the . · orlginatiDg phone camer,~ not Bell..''Th!:se oth~phonc carrle:rs-could be in scxjes, requirlng furtbcr Prçducti.on Or:ders, 1:Îut ultimately ~~ lead to an orlgi;uü nnmbe:r Bll!i .~cr, as caaiets cxist to be paid :f9r th$ sçrvi~ In parlicnll!t Row!mJP sais the CDR should incluqe 2 o~ dam' fields wbiclt store the calliDg ~ber- thë c;à,uer ID àisplayed by the calliDg numbcr, wbich is Ukely 450- 160-7746, and also the 'trqe'· cal.ling n?inhcr, known liS the .Automatic Number Jndcntificr or ANI. An ANI, for example. is somctimes used to traœ 911- calls whosc source doe.s not register on a 911 ·~· . ·. . : ..

• . · 110. Rowland said ~'the use of lill.~ ;ccPrding to cali potcntially scvcral hundred · individuals in a. sbort pcriod on .M!IY 2 indicated to him tbat the Vttgin ceU pbone was lilœly obtain.ed to forge 11. callt:r ID; ùsing ~~ lf.ell phone numbet. In this sceoafto the actual calls wcze placed throu~ a Vciice Broadcast:ing :v'cndor, that is, a ~ caii center opcœtion. The forging of the ciiller ID would ~place; by using 1he SIM Cbip ~m the cell pbpne in specialized : telecom equipmcnt so that tho call ~JlCliilf on !he recipient's cail display as from 450-760-7746, wh~ in f.àct it is from à'c;ill center phone batik.

111. In respect oftcCOrds Rowland indi~ the following recoros likely cxist and will be: useful in· deternrlning the \ll1iltm1e!~ Th~ ~illcide with 1he inf'omlation ~Denise: Murlcy at Bell '· Corporaœ .Security ~mey be ~vablc. with a Production Orde;r: • Ccll phono eau Display ~~ jpcluding call origination and t=lination, ca1llcngth, caller ID, ANI, and cartier routing ~rmation; ·

. The phone has. to have bcen pmcbsse11 at a relllil outlet, c:reatfug a sai.~ n:card; •• t • . ~the ~ were automated it is pPSSI'blc tobey a phone, bkc the SIM Çmp out and inse1:t the chi.p in equipme:nt connecrlng to a roboq!i;ED.g ~ If this occmxcd a list of deviees used on the ~s phone accotmt should.eidst wilh the CORs..

112. I apprcciilte that Mr. ~wland baS a political background, but he also is teehnologj.ca!Jy . ~w~cd.gc:ab~c·h?- œn ecime operaiÎt;l!:l.S- ms infolmation is ~cd. ~o~ only ÏnSt?~ ~ lt lS · consistem with dilla w"hicll Dcnlie MÜI!ey of Bell Coiporatc Securlty has indicated to mc 15 or could 1 • • • •• 'l'lof:. • bè availab!e·m.. a. cell phone xecord kepl:jly. BelL. ·Ji. 752 1313

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1.•

16

C-QNCLtlSION AND REQUEST

113. Bas~ on:the info~~n _desçribcà abovc. I have, ~onable groliiids to belicvc and do lÎelicve

t. The of!l:nccs dcscribed. abo~ ha~ bcen committed;,

Ïi. the d~e:nt$ or data ~ougb.t will afibrd ,evidence ~ the commlssion of · these off~ces; · · · . ill.. iliat Bell Caœda has possession. or control. of the do~ents or data .saught; 114 .. fu order to cnsute sumci,ent 1ime for {ocaling and ceitifying-thc documents sought, it is xequcsted tln!t ~c 1ime pcriod-to ptèduce:thc DOÇUMF:NTS OR DATA TO BE PRODUCED be 60 deys from the date of the service of 1he Prodüctioq Order beiog spplied fur.

115. r requcst 1l)at. the .documC!lts or dÏlta Q.e produced to Al1ap. Mathews, a Public Qfficcr a:ppoinJcd or desigoated to a.dJ:W.nistcr or C!lfoh:e .~Act, and forwarded by ~mail to the attention of Alhui Malhc:ws at lh.e Office of the Coiiii!Dssioncr of Canada Elections 251 Slstcr Street Ottawa, Obtario KlA OM6 by no later thcn 60 days from the date of the service-of the order applied far,

116. I request the documents or~ be produ.~ be in bardcOpy follll.

WHEREFORE the ..Informant rcquests ~ a PÂR. CONl)ÉQUENT, le dénonciateur demanda Produçtion Order, IIUlY be gnmted. according ta .the qu'une ordonnance· de communications soit accordée . ll:rms herein propasc:d.. sujet aux conditions proposées ~i-haut.

. Swom before mc of :·JWlc Assenoenté dcv~ ~oi-mêmc ce _jour __en A..D. 21kY::l!~~~iP':t"tiiél l'~ de grâce 20 lll Ottawa, Ontario

Juge de paix dans et JX!ur la province de l'Ontiuio

. :

.. · ...... ~::,, 753 TAB D 1314

REDACTED VERSION

INFORMATION TO OBTAIN A DÉNONCIATION EN VUE D'OBTENIR PROÎ>UCOON ORDER UNE ORDONNANCE DE CO.MMUNCIATION (Section 487.012 of the Crimioal Code) (article 487.012 du Code crimiael) AND IN THE MATIER OF an Applieation pursuant to subsection 487 .3{1) of -Jsa11blt..-i-._..m«ted~r..~xç the Criminal Code, to prohiblt access to and lllllda.vtt disclosure of 1pecified information filed in ot.... f.~ggx~~~ ..Sr!~ ...... support ot; and in the application for, the above oiwom beforemi!l,~ls .... ~...... production order and the materlal filed in support of this application. ~~deyof~:~~...... ~~· . Canada, Canada, .., "'~~- . •..... Province of Ontario Province de l'Ontario ---. A~MTAQ«lmtOA'It'lll On Behalf ofHer Majesty the Qneen An nom de Sa Majesté la Reine

This is the information of S. John B. Dickson Les présentes constituent la dénonciation de (le hereinafl:er called the Informant, of the Town of dénonciateur), de (ville), dans ladite province de/du North Grenville, in the Province of Ontario, a public (province),~ ci-après appelé le dénonciateur, officer appointed or designated to administer or portée devant moi. enforce a federal law and whose duties ioclude the enforcement of the Canada Elections Act, taken beforc me.

The Informant says that he bas reasonable grounds LE DÉNONCIATEUR DÉCLARE QU'IL existe to believe and does belicve that one or more des motifs raisonnables de croire et croit offences contrary to an Act ofParliament have becn effectivement que l'infraction suivante i la loi committed, to wit: fédérale: •

OFFENCE INFRACTION

Tbat a person or persans unlmown, between March 26, 2011 and May 2, 2011, in or near the Province ofNew~oundland, did wilfully prevent or endeavour to prevent an elector from voting in an election contrary to paragraph 281 (g) of the Canada E/edions Act and by so doing committed an offence contrary to paragraph 491 (3) (d) of the Canada Elections Act, s.e. 2000, c.9 as amended;

AND

That a person or persans unknown, between Marcb 26, 2011 and May 2, 2011, in or near the Province of New Brunswick, did wilfnlly prevent or endeavour to prevent an elector from voting in an election contrary to paragraph 281 (g) of the Canada Elections Act and by so doing committed an offence contrary to paragrapb 491 (3) (d) of the Canada Elections Act, S.e. 2000, c.9 as amended;

AND

Tbat ·a persan or persans unknown, between March 26, 2011 and Mlly 2, 2011, in or near the Province of Ontario, did wilfully prevent or endeavour to prevent an elector from voting in an election contraey to paragraph 281 (g) of the Canada Elections Act and by so doing committed an offence contrary to paragraph 491 (3) (d) of the Canada Elections Ad, s.e. 2000, c.9 as amended;

AND

Tbat a person or person.s unknown, between March 26, 2011 and May 2, 2011, in or near the Province of Alberta, did wilfuUy prevent or endeavour to prevent an eleetor from voting in an election contrary to paragraph 281 (g) of the CfiJiaàa Elections Act and by so doing committed an offence contrary to paragraph 491 (3) (d) of the Canada Elections Act, S.e. 2000, c.9 as a~cnded;

AND

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That a person or persans unknown, b~een March 26, 2011 and May 2, 2011, in or near the Province of British Columbia, did wilfully prevent or endeavonr to prevent an electorfrom voting in an election contrary to panmraph 281 (g) of the Canada Elections Act and by so doing committed 11n offence contrary to paragraph 491 (3) (d) of the Canada Elections Act, S.C. 2000, c.9 as amended; AND

That a pert!on or persons unknown, between March 26, 2011 and May 2, 2011, in or near the Province of Newfoundland, did, by pretence or contrivance, lnduce or attempt to lnduce persons to vote or refrain from voting or to vote or refrain from voting for a particular candidate and by so doing committed an ofi'ence contr.a:ry to paragraph 482 (b) of the Canada Elections AcJ, s.e. 2000, c.9 asamended;

AND

Tbat a person or person! unknown, between March 26, 2011 and May 2; 2011, in or near the Province of New Brunswick, did, by pretence or contrlvanee, indnce or attempt to induce persons to vote or refrain from voting or to vote or refrain from voting for a particular candidate and by sa doing committed an offence contrary to paragraph 482 (b) of the Canada Elections Act, S.C.2000, c.9 as amended;

AND

That a persan or penons unknown1 between March 26, 2011 and May 2, 2011, in or near the Province of Ontario, did, by pretence or contrlvance, induce or attempt to indu ce persona to vote or refrain from voting or to vote or refrain from voting for a particular candidate and by so doing committed an oiTence contrary to paragraph 482 (b) of the Canada Elections Ad, S.C. 2000, c.9 as amended;

AND

That a persan or persans nnknown, between Mareh 26, 2011 and May 2, 2011, in or near the Province of Alberta, did, by pretence or contrivance, induce or attempt to induce persans to vote or refrain from voting or to vote or refrain from voting for a particular eandidate and by so doing committed an offenee contrary to paragraph 482 (b) of the Canada Elections Act, S.C. 2000, c.9 as amended;

AND

That a persan or persans unknown, between March 26, 2011 and May 2, 2011, in or near the Province of British Columbia, did, by pretence or contrivance, induce or attempt to induee persans to vote or refrain from voting or to vote or refrain from voting for a particular candidate and by so doing commltted an offence contrary to paragraph 482 (b) of the Canada Elections Act, S.C. 2000, c.9 asamended.

And that there are reasonable grounds for believing et qu'il existe des motifs raisonnables pour croire that the following documents 'Or data will a:fford que les documents ou données fourniront une preuve evidence of the said offences: touchant la perpétration de l'infraction; ·

DOCUMENTS OR DATA TO BE DOCUMENTS OU DONNÉES À PRODUCED COMMUNIQUER

Copies, certified by affidavit to be true copies, of documents or data however stored (electronically, on microfiche, on pâper, on photographie film or any other form), relating to telephone numbers in the possession or control of Rogers Communications, 350 Bloor Street East, Toronto, Ontario M4W OAl, as follows:

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1. Conîll'lllation that Rogers Communications was the telecommunications service provider for each of the following telephone numben ("tbe telephone numbers") for the perlod April 25 tbrough May 2, 2011:

2. Subscriber information, ü any, for each or the telephone numbers for the period April2S

througb May 21 2011, induding:

a. the na me and 11ddress of the subscriber; b. the current telephone number, address and/or e-mail address for the subscriber, if known.

3. Cali Detail Records for each ofthe telephone numbers for the period April 25, 2011 to May 2, 2011, including records relating to:

a. telephone numhers called by the number; b. telephone numbers of calls received by the number; c. call origination and termination (including time of day); d. caU duration; e. originating carrier; f. caU and carrier routing lnformlltion; g. caller identification information.

I say that I have reasonable grounds to believe and do believe the matters described above, and that my grounds are set out below, following the ''OVERVIEW".

OVERVIEW

1. This is the second Information to Obtain (ITO or Information) a production arder I have subnùtted with respect to this request for the production of documents or data relating ta the Rogers Communications telephone numbers listed above. The fust was swom on October 23, 2012. On October 25, 2012, a production ortler was issued, as weil as a partial sealing arder, both as requested in my initial Information. The order was served on October 25, 2012. On Friday, October 26,2012, 1 became aware that my initial Information contained severa! small discrepancies pertaining to the total number of Rogers subscn'bers who were complainants, and the number of additional complalnants in the sarne Electoral Districts \\rbo were not Rogers subscribers, but who had complained of having received similar caUs. Those discrepancies occurred during Jast minute updating and have been corrected, The correct numbers are as set out at paragraphs 33, 34, 49, 261 and 262 of this my Information. Aside from these corrections and updates at paragraphs 10, 62, 88 and 150 with respect to investigative activity since my initial Infommtion was swom, the:: present Information is in ali rnaterlal respects the:: sarne as the initial Information submittcd on October 23, 2012. 1 hereby request that the production order and sealing order issued pursuant ta my Information

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swom on October 23, 2012 be revoked and the present Infonnation be considered in support of a new production arder and partial sealing arder to the same effect and containing the same tenns and conditions as the ones ofOctober 25,2012.

2. I, S. John B. Dickson, the Informant herein, am engaged under contract as an Investigator in the Office of the ColDDlissioner of Canada Elections and wu a persan charged by the Commissioncr of Canada Elections (the "Commissioner'') ·with dulies relating to the administration and enforcement of the Canada Election$ Act (the Ac;O. For the purposes of section 487 of the Crlminal Code, I am a public officer. 1 have persona! knowledge of the matters and fucts contained herein except where stated to be on infonnation or belief and where so stated 1 believe them ta be true.

3. The Commissioner is appointed pursuant to section 509 of the Act, and is independent from the Chief Electoral Officerin C!III)'Îng out his duties of compliance with and enforcement of the Act. The Directorate of Investigations (the Directorate in which 1 am engaged), provides support ta the Commissioner in carrying out his mandate.

4. 1 have been investigating complaints received by the Commissioner that in relation to the 41st federal general election (GE), telephone calls were made to electors in various electoral districts in Canada, ether than in Guelph, Ontario, on or about polling day, May 2, 2011, in a manner that constituted the offences described above. Telephone calls received in the Electoral District of Guelph, Ontario, are the subject of a separate, but related, investigation being conducted by the Commissioner. The present Infonnation to Obtain exp lains my grounds for belief, which have been obtained from my continuing investigation into this matter.

5. This Information to Obtain (ITO) a Production Order is to request the production of records relating to the telephone nurnbers listed above, by requiring Rogers Communications (Rogers) ta produce documents or data concerning the telephone numbcrs to which the caUs reported by the complainants, referred to below, were made. I believe the documents or data will provide me with the telephone numbers of the incoming calls to complainants, which in tum will allow me to identify the subscrlber(s) of the telephone numbers from which these rcp,orted incoming calls emanated. That information will then assist me to identify the persan or persans responsible and the location from which they initiated the allcged misleading or inappropriate calls to electors.

6. The telephone nurnbcrs listcd above, concerning which documents or data are sought to be produced, represent the numbers at which relevant incoming calls were received as reported by the complainants refened to below. These complainants mentioned in this my Infonnation have either st:ated in their complaints that they were subscribers of Rogers during the period afthe 41'1 GE (the relevant pe.riod), or I have confirmed with Rogers that these complainants were subscribers during that period.

7. 1 am aware that Rogers is in the business of providing, inter alla, digital telephone service ta subscribers. It is my understanding that Rogers maintains legs of data pertaining to incoming cal1s ta and outgoing ca1ls from its subscribers. As discussed be!ow, 1 have provided the foregoing telephone numbers to Rogers and have bccn advised by Rogers officiais that !bose telephone numbers are numbers serviced by Rogers.

8. This ITO explains how, as a result of my investigation, I have grounds to believe:

1 a) That on or before May 2, 2011 electors in a numbcr of Electoral Districts (ED) in Çanada received telephone calls from a live or recorded caller(s). ln sorne cases the caller purported ta be calling as an official of Elections Canada. The content of the messages was to inform the elector that his or her polling station had been cbanged to another location, typically a further distance from the elector's place of residence. In many cases I have been able to determine that this change in polling station was contrary to the official Voter Infonnation Card (VIC) prlnted and distributed by Elections Canada;

1 The Canada Elections Act, s. 2 defines "electoral district" as a place or territorial area thal is represented by a member in the House ofGommons.

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b) That there was no truth to the information conveyed in these caUs. Wbere such was claimed, the caller was not representing Elections Canada and the polling stations of the electors were not as indicated by the caller;

c) Thal a nwnber of electors received annoying, harassing and/or incowenient telephone calls. The caliers claimed to represent particular federal political parties, but bccanse of the content, tone and/or time of day the calls were received (often early moming or late eveninglnight) and/or the frequency of the caUs, the caUs were intendcd to induce or attempt to induce them to vote or refrain from voting, orto vote or refrain from voting for a particular candidate.

9. I believe that by the pretence or contrivance ofthese misleading or annoying calls, the wilful conduct of the caller(s) prevented or endeavoured ta prevent electors from voting in the election being carried out on May 2, 2011, contrary to paragraph 491 (3)(d) of the Act. Similarly, the conduct wilfully induced or attempted. to induce electors to vote' or refrain from voting, or to vote or refrain from voting for a particular candidate, contrary to paragraph 482 (b) of the Act.

10. In furtherance of this investigation, and conc\I!Ient with this Information to Obtain a Production Order, 1 have this date swom a separate but related Information to Obtain (ITO) a Production Order for relevant documents or data in the possession of Shaw Cablesysterns G.P. (Shaw). 1 am aware tbat on October 30, 2012 my collcague, Investigator Andre Thouin, swore a separate but related ITO · for a Production Order for relevant documents or data in the possession of Videotron SENC (Videotron). The Commissioner bas sought and obtained nine Production Orders pertaining to the separate but related investigation of alleged misleading calls made in the Electoral District of Guelph. l do not rely on the information contained in any of these nine Production Orders in this my Information; tberefore they are not referred to in nor appended to this my Information.

11. With respect to the separate but related ITOs swom pertaining to this investigation, I have personal knowledge that the Shaw ITO contains information pertaining to complaints which are similar to those enumermed in this my Information. I have reviewed each of the complaints set out in the Information I have swom with respect to Shaw. I am aware that those complainants who ll!e subscrlbers of Shaw complained to r.he Commissioner of having received telephone calls directing them to a polling station other than as indicated on their VIC, and/or of having received inappropriate telephone calls, or telephone calls which claimed to represent a particular political party or candidate, but which were rude or otherwisc: dcsigned to annay the camp lainant I believe that the misdirection calls reported by the Shaw complainants supports my belief tbat sucb calls were intended to induce the complainants to vote or refrain from voting in an election. I believe that the annoyance calls reported. by the Shaw complainants supports my belieftbat the calls were intended to in duce the complainants orto vote or refrain from voting for a particulll! candidate.

12. I have read the Videotron ITO as swom by my collcague Andre Thouin. I believe that his ITO contains complaints which are sùnilar in nature to those of Rogers and Shaw subscriber complainants who received similar misdirection and/or annoyance telephone calls during the election period. I believe that the misdirection calls reported by the Videotron complainants supports the beliefthat such calls were intended to induce the complainants to vote or refrain from voting in an election. I believe that the annoyance calls reported by the Videotron complainants supports the belief that the calls were intended to induce the complainants or to vote or refrain from voting for a particular candidate.

GROUNDS FOR BELIEF

Complaints of Inappropriate Calls -General

13. This part of my Information exp lains wh y I believe that, if the calls occU!Ied as described by the complainants, sorne of the information given by the caliers was false.

14. The writs initiating the 41st federal general election were issued on March 26, 2011; polling dayl was May 2, 2011. I have viewed the website of Elections Canada On that website, the Report of

7 The Canada Elections Act (ss. 2(1)) defines polling day as the day fixed for voting at an election. l! is conunonly called election day. For the 41st general election, polling day was May 2, 2011.

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the Chief Electoral Ofjicer ofCanada on the 41st general election ofMay 2, 20JJJ stipulates that for the 41'l federal general election 4,706 advance poils (to accommodate electors who may be absent or unavailable on polling day) were set up across Canada on April 22, 23 and 25, 2011. On polling day (May 2, 2011) a total of66,146 poils at which electors casttheir ballots, were set up and operated across Canada.

15. 1 have reviewed file documentation maintained by the Commissioner in relation ta what has. been described as robocall complaints. From tbat review, I am aware that before Februa:cy 23, 2.012, the date on wbich what bas become known as the ''Robocalls" news story broke in the media, the Commissioner of Canada Elections had received compl.aints from electors residing in various Electoml Districts (ED's) across Canada conceming reportedly inappropriate telephone cal1s received during the election period. The volume of complaints increased significantly after February 23, 2012. File documentation (ns at October 11, 2012) indicates that 1,399 complainants from 247 ED's reported having received calls rnisdirecting 1 misinforming them with respect to their correct polling station or which they described as rude, harassing or annoying, received at an inopportune time of day or on multiple occasions. Tiüs includes 252 such complainants from the ED ofGuelph.

16. As part of my investigation I bave reviewed file documentation pertaining to ali of the complaints enumemted in this my Information. Where indicated, I have spoken v.ith the complainant(s) myself. In addition, 1 have reviewed documentation r:nainlltined by the Directorate of Investigations, including complaint intake forms4 and follow-up contacts with complainants conducted by other investigators or staffin the Directorate oflnvestigations who assist the investigators.

17. File documentation maintained by the Commissioner, which I have reviewed, indicates that somc complainants reported baving œceived either live or recorded telephone calls on or about polling day, wbich many complainants recall as claiming to be from an official of Elections Canada, advising them that their polling station had been changed. In almost all cases, the purported new polling station was farther away from the elector's place of residence and was more inconvenient for the elector to attend.

18. I have reviewed an e-mail dated May 9, 2011 from Ms. Sylvie Jacmain, Director of Field Services, Elections Canada, to my colleague in the Directomte of Investigations, Invesûgator Allan Mailiews. In that e-mail, Ms. Jacmain advised :Mr. Mathews that Elections Canada does not CQntact electors by telephone to change a polling station. She indicated that if a change of polling station were necessary, for example by the unavailability of a building in whicb a polling station was to be located, the change would be communicated by reprinting ~d sending new Voter lnfonnation Cards5 (VIC) to electors, or, for last minute changes, through media broadcasts and personally by Elections Canada staffposted at the closed polli~ station.

19. The same file documentation indicates that sorne complainants reported having received annoying ~alls during the weeks leading up ta polling day, 1ypically reported as being made at inopportune times of day or made as a series of calls to the same camp lainant and purporting to seek support for a particular candidate or federal political party.

20. As set out below, 1 have contacted the representative of a political party as weil as officiais of a number of candidates' campaigns in whose names such calls were ostensibly made. In each case, and as indicated in specifie instances bclow, the person(s) I contacted denied making or being party to such calls.

'See h!!p://www.eleorions.calconlent.aspx?scclion=res&dlr=replofflsl• 201 t&document=p2&lanf!.aeifaJ2 ' A cam plaint intake form was a document completed after a complaiut was received and a complainant was contacted. It allowed an investigator or staff to engage in a directed discussion with the complainant and pose a list of questions to ensure that relevant data was collected. 5 A VIC is sent to each registered elector by Elections Canada in advance of each fedeml general election. The VIC informs the elector of the polling station to which he or she must go in order to vote on Election Day.

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21. I am swearing this present Information in support of a request for a Production Order to obtain DOCUMENTS OR DATA TO BE PRODUCED pertaining to records I bclicve to be in the possession or control of Rogers.

22. Within the context of this investigation, Rogers is not a persan who has committed oris suspected of having conunitted the offences set out under the heading OFFENCES above or any other offences against any Act of Parliament. Rogers is reasonably believed to have possession or control of the material named in the section titled DOCUMENTS OR DATA TO BE PRODUCED,

23. From my review of file documentation rnaintained by the Directorate of Investigations and from my persona! knowledge in speaking with complainants, I believe that most relevant telephone calls were received during the final week of the election period, i.e. during the week of April 25 to May 2, 2011. As a result., and in arder to restrict the timeframe to be reviewed as rouch as possible, 1 have requested the production of documents or dam for that peciod.

Complaint Management

24. The pmpose of this part of my Information is to exp lain how comp1aints were received and maoaged by the "Directorate of Investigations. The Directorate, under the Director of Investigations, is responsjble for conducting investigations under the authority of the Commissioner of Canada Elections.

25. Members of the public were able to send a complaint or a communication to the Commissjoner via severa! means. From my knowledge of procedures witbin the Dircctorate of Investigations, I am aware that the Directorate maintains two e-mail accounts which are accessible through the Elections Canada website; one accotmt for English and one for French language complaints. On a nurnber of occasions overthe spring and summer of2012lhaveviewed the website of Elections Canada and 1 have observed that Elections Canada also provides on its website a form for complainants to complete and submit electronically. From my review of file documentation, 1 am aware that these submitted foiiilS were provided by Elections Canada to the Directorate of Investigations, where they were trlaged by intake staff to separate specifie complaints from those in which the elector wished to present a general opinion or point of view.

26. In addition, 1 am aware thal: members of the public could telephone either Elections Canada or the Directorate of Investigations. In addition, 1 am aware that complainants could send their comments to the Conunissioner via regular mail or by facsimile.

27. I have persona! knowledge that in sorne instances, complaints were collected by certain Members of Parliament and/or their staff and forwarded in writing to the Commissioner.

28. The complaints discussed in this lTO refer to complaints of inappropriate ca11s received by complainants, rather than communications from concerned Canad.ians merely expressing an opinion or point of view. 1 have personal knowledge that messages received by the Commissioner or directed to another recipient and copied to the Comrnissioncr, and which related to robocalls but only expressed an opinion of the sender and did not disclose a potential breach of the Act, were captured as "comrmmications" as opposed to "complaints", for statistical purposes. The number of conununications received by the Commissioner as at the date of this lTO is approximately 40,000. As noted above, the numberofcomplainants is i,399.

29. From my review oftile documenmtion maintained by the Directorate of Investigations and from my own observations and actions, I am aware that staff who were processing the complaints were asked to review each complaint to ensure that contact infonnation and the nature of the complaint disclosed an issue relating to potentially inappropriate telephone calls during the 41st General Election {GE).

30. 1 am aware that reports from each ofthe 1,399 complainants (including the ED of Guelph) bave been reviewed individuaUy by investigators and/or staff. Each of the complainants bas either been contacted personally or attempts have been made to make such contact. Contact with, or attempts to contact complainants, bas often required multiple calls or e-mails, thereby adding to the time nccessary to review and assess each report

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31. From my review of file documentation maintained by the Directorate of Investigations (as at October 11, 2012) and from my persona! knowledge, I am aware that complaints with respect to inappropriate calls outside ofthe ED of Guelph were received over a period oftime. At the time of the 41st GE and up ta February 2012, the Commissioner received reports from 99 complainants. Following the release in the media on February 23,2012 ofwhat has become known as the robocalls story, the Commissioner received 1,048 reports from complainants. In total, reports from 1,1476 complainants bave been considered with respect to inclusion in this my Information. As will be discussed below, many complainants reported having received bath misdirection and inappropriate calls. The number of complaints, therefore, is greater than the number of complainants.

32, From my review of file documentation maintained by the Directorate of Investigations and from my persona! knowledge, I am aware that one ofthe data points obtained by investigators and staff in the Directorate of Investigations ln their interactions with complainants was the name of the telephone service provider of the complainant at the timc ofthe 41st GE.

33. Thave reviewed information entered into a spreadsheet (a table containing many items of data from information about the complaints) prepared by investigators (myself included), and staff who assist the investigators in the Directorate of Investigations, of ali of the complaints received by the Commissioner pertaining ta misdirecting or inappropriate telephone calls. I have also reviewed specifie files maintaincd by the Commissioncr. I am awarc that of the reports from the 1,399 complainants received by the Commissioner (as at October 11, 2012), 1,043 relate to complaints of having been rnisclirected at the time of or shortly before the 41 51 GE. Complainants in 625 of the 1,043 complaints of rnisclirection reported having been called by eitb.er a live or recorded message clairning to emanatc: from Elections Canada. 79 complainants believed they were contacted either by a live or recorded message from a political party and misclirected to another polling station. The remainder could not be sure or did not know wherc the caller claimed to be from, but they did report being directed to a polling station other than that to which they were directed by their Voter Information Card (VIC) or at which they had voted in previous elections.

34. My review of the spreadsheet as weil as my revicw of specifie files maintained by the Commissioner indicates that in addition tc the complaints of rnisdirection, the Commissioner also received 857 complaints of electors having received what they considered ta be harassing or armoying cali.S. My review of file documentation indicates that complaints ofthese calls typically describe calls receivcd at inopportune times (such as late at night) or having bcen received on an ongoing (sometimes daily) basis. over tiree. The content of such calls is typically described as aggressive or barassing. Sorne complainants reported that caliers claimed to representa particular named party or candidate.

35. Descriptions such as "aggressive" or "harassing" are subjective on the part of the recipient Given that the complainant was typically engaged in a live conversation with the caller, none of the complainants who were Rogers subscribers described in this my Information was able to provide a recording of an actual cali in which they participated. These types of calls aie included in this my Information as support for the need to obtàin from Rogers the DOCUMENTS OR DATA TO BE PRODUCED noted above because, if believed, the information provided by the complainants supports tbe beliefthat such calls were intended to induce persans to vote or refiain from voting in an election, orto vote or refrain from voting for a particular candidate:

36. I conducted a canvass by calling a number of telephone service providers identi:fied by complainants as being their telephone service pro vider. Rogers was one of the comparues 1 canvasscd.

37. My canvass revealed that such companies retain call data records forvarying amounts oftime as they relate to calls where no billing information is required to be retained (such as a local ca1l or an incoming long distance call which does not impact the bill of the recipient), Sorne companies advised me that where no billing is required ta the subscriber or ta a third party, they do not retain records (known as a Cali Detail Record) for any data such as indicated above in DOCUMENTS OR DATA TO BE PRODUCED, relating to incoming or outgoing calls. Other companies advised me

6 252 additional complainants in the ED of Guelph reported misdirecting calls, for a total of 1,399 complainants. As notee!, complaints with respect to robocalls received in Guelph, Ontario have been treated as part of a separate, but related, investigation.

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that they do retain and archive such data and are able to retrleve it. I have not stipu]ated the policies explained tome by specifie comparues, since they are not relevant to this my lnfonnation. ·

38. As noted below, T am aware from my discussions with Rogers, the company pertaining to which this arder is sought, that Rogers is a company that does retain call detail records and can access such data.

Rogers Subscriber Complaints

39. This part of my Information provides a background to the complnints received by the Commissioner from Rogers subscribers in the context of overall complaints received by the Commissioner.

40. From my review of individual complaint files, the spreadsheet of data and from my persona! lmowledge, 1 am aware that of the 1,399 complainants who reported inappropriate telephone calls received by electors during the 41st GE, 45 complainants who reside in 28 different Electoral Districts (ED) (not including complaînants in the ED of Guelph) were confumed ta be subscribers ta Rogers Communications (Rogers). As indicated below, these Rogers subscriber complalnants reside in EDs in Newfoundland, New Brunswick, Ontario, Alberta, or British Columbia.

41. Of these 45, 34 reported having received telephone calls on or about polling day misdirecting them ta another polling location and 30 reported having received nuisance or inopportune election related telephone cal.ls during 1he election pcriod. The total number of misdirection and nuisance caUs is greater than the number of complainants beca~e sorne complainants reported having received both types of caUs. Each complainant's description of the caU or caUs rcceived is set out below.

42. According ta ils 2011 Annual report, Rogers is one of Canada's Jargest providers of cable television, high-speed internet access and cable telephoey servicei.

43. As part of my telephone service providcr canvass mentioned at paragraph 37, I speke by telephone on July 31,2012 with Mr. Elia Vanni, Senior Manager, Corporate Investigations, and Mr. Aaron Storr, Senior Manager, Law Enforcement Support. llearned that Rogers is a company that stores and can access Cal! Detail Records relating to calls made and received by its subscrlbers.

44. From my conversations with the Rogers officiais narned above, I Jeamed that the head office of Rogers is located at Toronto, Ontario, and that the records sought to be produced are digitally storcd, and available through that location.

45. On Oeta ber 11, 2012 I provided ali of the above telephone numbers for which this order is sought, ta the Senior Mm:iager, Law Enforcement Support. He confirmed the same date that Rogers was the telephone service provider for each number during the period of the 41st GE. This accords with the infÇlrmation reported by the complainants.

46. From my review of the file documentation maintained by the Directorate of Investigations and from my own persona! knowledge, I am aware that, with respect ta the investigation of telephone calls outside the ED of Guelph, one of the Rogers subscrlbers who made comp!aints to the Commissioner was able to provide infonnation to identify the number(s) from which the incoming calls may have been made. None of the Rogers subscn'bers was able ta providc an audio recording of a cal.1 ta confirm lhe content as reportcd.

47. Furthcr, 1 am aware that of the 45 Rogers subscribers who provided telephone rclated complaints, four reported shortly after the 41 51 GE. 41 reported directly to this Office after the Robocalts stocy broke in the media on February 23, 2012.

48. Either I or another investigator or other staff has communicated with each complainant and posed questions about their complaint and the cal.l(s) they complained of as part of the process involving the intake of complaints as discussed above in the section titled Complaint Mf!!U~gement. I have reviewed this information as it pertains to Rogers complainants and am satis:fied. that each of the

7 Roge."S 201 J Ann\lfll report, p. 31 at htto:fiwww.roger~.eomlernslinvestor reladonslannuul html120ll/HTML2/rogcrs communications-nt'.2011 Oo:JS.Ium

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telephone numbers (set out above) is a munber at which a complainant belicves a misdirection or inappropriate call was received. In addition, J am aware of the address of each complainant, which bas been used to confirm the appropriate polling station and to verii)r whether or not the location of the polling station had changed.

49. From my review of file documentation anrl from my personallœowledge 1 am aware that in addition to the 45 Rogers subscriber complaints enumemted herein, the Commissioner received complaints from 221 additional complainants in 25 out ofthese same 28 EDs who were not Rogers subscribers, but who reported having received similar caUs.

50. From my review of the Elections Canada website, I am aware that within a given Electoral District (ED), polis are set up at which electors come to vote and 1 am aware tbat from time to time such poils must be changed because of the unavailability of the location. Sometimes this occurs on short notice.

51. To determine whether a location change was made to any poli in a given ED I speke on August 9, 2012 with Mr. Andre L'Ecuyer, Chie~ Accessibili:cy Unit at Elections Canada. I am aware from speaking with Mr. L'Ecuyer that he was part of a working group of subject matter experts created to compile the data, provided by Returning Officers tbat allowed his unit to trace and record changes in polling locations that happened between Aprlll3, 2011 and May 2, 2011. Also on August 9, 2012, Mr. L'Ecuyer provided me with copy of the document created by hls group, which reports changes made to polling locations during the time~e cited herein. The document to which r refer in this my Irûoimation emanating from Elections Canada and pertaining to changes in overall poil locations in an ED is the document received from Mr. L'Ecuyer.

52. Where the document referred ta above did specify !hat a poU change had been made in an ED in which a complainant repor;:ted having been advised of a poli change by telephone, I contacted Mr. L'Ecuyer directly and enquired about the specifie complainant to determine whether that complainant's polling station had changed. ln those cases, I have indicated the responses of Mr. L'Eceyer or his colleague.

53. In this my Tnfonnation, 1 have used the terms "live caller" anrl "robocall". By "live caller"! mean a cali from a persan in which a conversation or exchange took place between the caller and the recipient of the ca1l or a message tbat was left by a live persan on an. answering machine. By "robocall", 1 mean an automated message that was received by the recipient eithe.r when they picked up the cal] or when retrieving a recorded message from their answcring system.

54. Not al! complaints received from Rogers subscribers are relevant to this Information. ln sorne cases, complainants who happened to be Rogers subscribers complained of issues not relevant to this Irûormation, such as making a complaint wlùch does. not disclose any potential breach of the Act or believing they received a problematic telephone call(s), but having no recollection or a recollection that was so vague as to be unable to relate the call(s) to the election. Where additional complaints were provided by Rogers subscribers but are not relevant ta the Irûonnation, I have lndicated thal only relevant complaints are discussed.

55. The relevant complaints pertaining to Rogel'll subscribcrs are chronicled below. In each case, I have either spoken personally with the complainant or I have relied on irûormaûon contained ln files maintained by the Directorate of Investigations. Where I have spoken personally with a complainant I have so indicated. In ali ether instances 1 have relied on documentation contained in rel!Want complaint files maintained by the Directorate of Investigations. 1 bave no reason to doubt the veracity of the information as compiled by investigalors or other staff in the Directorate or Investigations or as provided by complainants.

Complaint from One ED in Newfoundland

Individual Electors in the Electoral District of Saint John's East-ED #10006

56. Two complaints were received from Rogers subscribers residing in the ED of Saint John's East. am aware from a review of the Elections Canada website that this ED is located in the province of Newfoundland.

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57. The first COO!pls,i~t, - provided his complaint to the Commissioner on March 7 2012. He reported that on ili~ moming of po !ling day he received a robocall claiming to represen~ Elections Canada and advising him that his polling station bad changed. The complainant did not report the location to which he had been directed ta vote; he said he hung up before the recording could finish.

58. As stated at paragraph 18 of this my Information, 1 am advised and 1 believe it to be a fact, that Elections Canada does not cal! electors with respect to a change in polling station.

59. I have reviewed a document prepared by Elections Canada indicating changes in polling stations for ail EDs across Canada. That document does imlicate that changes in polling stations did take place in this overall ED. I have confumed with M. Andre L'Ecuyer, Chie4 Acccssibility Utût at Elections Canada, and 1 belicve it to be a fact, that although sorne polling stations changed in 1his ED, for this complainant's address Elections Canada bas no record of any change in polling station.

60. I therefore believe that ü the call was as reported by the complainant, the caller or the persan or persans who caused the cali to be made, knew the infOIDlation to be false and thereby did wilfully prcvent or endeavour to prevent an elector from voting in an election. Redacted 61. The second complainant, ,provided bis complaint to the Commissioner on March 14, 2012. He repôrrea'tfiâi'onpëilfù'ifêlay, he received a robocall on his answering service advising hlm that his polliog station bad becn changed to a church (the complainant did not speci:ty which church). He said he believed the caller stated the cal! was on behalf of the Conservative Party, but he was not certain. The complainant reported that be retained the recording for about a month, but erased it.

62. On August 7, 2012 1 spoke by telephone with Mr. Arthur Hanùlton, legal counsel for the Conservative Party of Canada. Mr. Hamilton infonned me that he is providing assistance to members of the Conservative Party caucus and I should assume he is the point of contact for any requests. On August 30,2012 and October 2, 2012 I spoke with Mr. Hamilton and discussed with him the issue of whether the Conservaûve Party or the appropriate campaign official would be available to be interviewed with respect to alleged telephone calls in other EDs. On October 30, 2012 Mr. Hamilton advised me that he anticipates being tlbl!! to facilitate such interviews in the near future. That same date I asked Mr. Hamilton if he would also ammge an interview ofthe appropriate campaign official in this ED. I anticipate such an interview also being arranged in the near future.

63. l have reviewed a document prepared by Elections Canada indicating changes in polling stations for ali EDs across Canada. That document does indicate that changes in polling stations clid take place in this ovexall ED. 1 have confumed with M Andre L'Ecuyer, Chief, Accessibility Unit at Elections Canada, and 1 believe it to be a fact, that although some polling stations changed in this ED, for this complainant's address Elections Canada has no record of any change in polling station.

64. I therefore believe that if the caU was as reported by the complainant, the caller or the person or persans who caused the cal! to be made, knew the information ta be fàlse and thereby did wilfully prevent or endeavour to prevent an elector from voting in an election.

Complaint from One ED in New Brunswick

Individual Elector in the Electoral District of Acadie- Bathurst-ED #13001

65. One: complaint was received from a Rogers subscnôerresiding in the ED of Acadie- Bathurst. I am aware from a review of the Elections Canada website that this ED is located in the province of New Brunswick.

66. The complainant, -)provided his complaint to the Commissioner on March 16, 2012 He reported''tllii.t'o'îi1:inliô'ffly"Before polling day, he received a robocall advising him that the call emanated from Elections Canada and indicating that his polling station bad changed. The complainant did not report the name, but said he was redirected to a church. He said he drave to the church but saw no activity. He then voted as directed by his VIC.

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67. Al; stated at paragraph. 18 of this my Information, I am advised and J believe itto be a fact, that Elections Canada does not call electors with respect to a change in polling station.

68. I have reviewed a document prepared by Elections Canada indicating changes in polling stations for ali EDs across Canada, end I believe it to be a fact that Elections Canada bas no record of any change in polling station in this ED.

69. 1 therefore believe that if the cali was as reported by the complainant, the caller or the persan or persans who caused the call to be made, knew the information to be false and thereby did wilfully prevent or endeavour to prevent an elector from. voting in an election.

Complaints from 24 EDs in Ontario

Individual Elector in the Electoral District of Simcoe North- ED #35086

70. One complaint was received from a Rogers subscrlber residing in the ED of Simcoe North. I am aware from a review of the Elections Canada website that this ED is located in the province of Ontario.

71. The complainnnt, 1I;IIJ@M provided her complaint to the Commissioncr on March 28, 2012. She reported that lipprôxfôïatè1)ï ô'ne week before polling day, she received a robocall advising her that the caU emanated from Elections Canada and indicating tba! her polling station had changed. The complainant did not listen to the entire message before she hung up, therefore she was unable to report to which location she was directed.

72. AJ; stated at paragraph 18 of this my Infonnation, 1 am advised and I believe it to be a fact, thal Elections Canada does not cali electors with respect to a change in polling station.

73. I bave reviewed a docwnent prepared by Elections Canada indicating changes in polling stations for ali EDs across Canada, and I believe it to be a fact that Elections Canada bas no record of any change in polling station in this ED.

74. I therefore believe thai if the cali was as reported by the complainant, the caller or the persan or persans who caused the cal! to be made, knew the information to be false and thcreby did wilfiùly prevent or endeavour to prevent an elector from voting in an election.

Iodividual Elector in the Electoral District ofDavenport-ED #35015

75. One complaint was received from a Rogers subscriber resid.ing in the ED of Davenport. I am aware from a review ofthe Elections Canada website that this ED is located in the province of Ontario,

76. The complainnnt,- provided his complaint to the Commissioner on March 8, 2011.. He reportcd thal ·tlie momÏng ofpolling day he received a live cali from a female who told him the cal! emanated from Elections Canada. He said she also told hlm that his polling station bad moved to a location not in his neighbourhood, and somewhere in the west end of Toronto. He could not recall the location to wbich he bad been directed.

77. He said he voted as indicated on his VIC, which was a location just across the street from hlm.

78. I have reviewed a document prepared by Elections Canada indicating changes in polling stations for ail EDs across Canada, and I believe it to be a fact that Elections Canada bas no record of any change in polling station in this ED.

79. I therefore believe that if the caU was as reported by the complainant, the caller or the persan or persans who caused the cali to be made, knew the information to be false and thereby did wilfully prevent or endeavour to prevent an elector from voting in an election.

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Individual Electors in the Eleetor2l District of Cambridge- ED #35011

80. Two complaints were received from Rogers subscribers residing in the ED of Cambridge. 1 am aware from a review of the Elections Canada website 'that this ED is located in the province of Ontario.

81. The first cornplainant, ·--,provided his complaint to the Commissioner on March 7, 2012. He reported that he and his wife received at least a dozen robocalls during the period prier to polling day claiming to represent the Green Party. The complaint stated that the calls often came late in the evening between the hours of9:00 to 10:00 PM, and were seeking support for the Green Party candidate in the ED of Guelph, not for the Green Party candidate running in Cambridge. He said the time of day of the caUs and the apparent lack of organization negatively impacted his view of the Green Party.

82. On September 21, 2012 I spoke with the wife of the complainnnt by telephone. She said they questioned. where they should vote because of the calls from Gudph, but ultimately voted as indicated on their VICs. She said she has no reason to bclieve that either she or ber husband would be on a list of Green Party supporters.

83. On September 21 and 24, 2012 I spoke with Ms. Gillian Mawice, the Official Agent of the Green candidate in the ED of Guelph to ask about the calls made by the campaign. She told me that the campaign did not make caUs after 9:00 PM, and said that the campaign prepared a list of people it believed were supporters. Ms. Maurice told me that she bas reviewed the list and found there are no supporters on it whose address is indicated as being in Cambridge, Ontario; she said the people on her list of supporters wcre the only people who were called. She said sbe kn.ows that Cambridge is approximately a 30 minute drive from Guelph and knows that a cali to Cambridge from Guelph is a long distance cali. She said that although both are in the same area code (519), the excbange numbers (the fi.I'St set ofthree numbers following the area code) would be different and recognizable ta a caller familier with the region as not representing a telephone number in Guelph.

84. Shc said also that the Green Party campaign in Guelph made live calls and robocalls. She told me that the robocalls were made using a telemarketing company, and confirmee! that the telemarketing company had the same instructions as the campaign's live callers, i.e. do not make caUs after 9:00 PM. She also found it odd that a supporîer would receive up to a dozen calls during the election period,

85. Given the oumber of calls and time of day the calls were received, coup led with the fact that the calls were allegedly intended to seek support for the Green Party candidate in a neighbouring ED, thereby potentially calliog into question the ability of that Party to organise its support caUs and its ovcrall cred.ibility, 1 therefore believe that if the calls were as reportee! by the complainant, the caller or the persan or persans who caused tbe calls to be made, intended te induce the complainant to vote or refrain from voting for a particular candidate.

Redscted 86. On September 13, 2012 1 speke with the second complainant, . . ·- .... ·-. who had provided her complaint to the Commissioner on May 2, 2012. Sbesfâië'Otruli'oüiliê'\vêèlt.end prior to po !ling day (May 2, 2011 was a Monday) she received a cali from a live caller who claimed to be calling on beha1f of the Conservative Party and was in possession of persona! information pertaining to herself and her hus band that she would not have expected tbe caller to bave. In addition. she said her telephone is unlisted, yet the caller had the oum ber. She said the cali was not inappropriatc in terms of tone or time of day, but her concem was the fact that the caller bad information she would not have anticipated to be available,

87. The complainant also stated that the caller directed her to vote at a location ether th an as indicated on her VIC. She said she cannot recall the location to which she was directed, but she believes it was furth.er away from ber residence than ber assigned po !ling station which, she said, is just behind ber house. The complainant voted as indicated on ber VIC.

88. On August 7, 2012 I speke by telephone with Mr. Arthur Hamilton, legal counsel for the Conservative Party of Canada. Mr, Hamilton informed me that he is providing assistance to members of the Conservative Party caucus and I should assume he is the point of contact for any requests. On August 30, 2012 and October 2, 2012 I speke with Mr. Hamilton and discussed with

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him the issue of wbether the Conservative Party or the appropriate cmnpaign official would be available to be interviewed with respect to alleged telephone calls in other EDs. On October 30, 2012 Mr. Hamilton advised me thathe anticipates being able to facilitate such interviews in the near future. That same date I asked Mr. Hamilton ifhe would also arrange an interview of the appropriate campaign official in this BD. Tanticipate such an interview also being arranged in the near future.

89. 1 have reviewed a document prepared by Elec1ions Canada indica!ing changes in polling stations for ali EDs across Canada, and 1 believe it ta be a fact that Elections Canada bas no record of any change in polling station in this BD.

90. I therefore believe that if the call was as reported by the complainant, the caller or the persan or persans who caused the call ta be made, knew the information to be false and thereby did wilfully prevent or endeavourto prevent an e1ectorfrom voting in an election.

Individual Elector in the Electoral District of Don Valley East-ED #35016

91. One complaint was rcceived from a Rogers subscriber residing in the ED of Don Valley East I am aware from a review of the Elections Canada website that this BD is located in the province of Ontario.

92. The comp1ainant, Redactcd provided his complaint to the Commissioner on March 7, 2012. H.e reported ffiàilhë 'èiây'bët'ore' polling day be answered a robocall which claimed, in a male voice, ta be from Elections Canada. The caller indicated that the complainant's polling location had changed from the location indicated on his VIC to a location about 200 metres away from the polling station indicated on the VTC.

93. As stated at paragraph 18 of this my Information, I am advised and I beüeve it tc be a fact, that Elections Canada does not cali electors with respect ta a change in polling station.

94. I have reviewed a document prepared by Elections Canada indicating changes in polling stations for ali BDs across Canada, and l believe it ta be a iàct that Elections Canada bas no record of any change in po !ling station in this ED.

95. I therefore believe that if the cali was as reported by the complainant, the caller or the persan or persans who caused the cali ta be made, knew the information to be false and thereby did wilfully prevent or encleavour to prevent an electar from voting in an election. lndividual Elector in the Electoral District of Don V ailey West-ED #35017

96. One complaint was received from a Rogers subscriber residing in the ED ofDon Valley West. lam aware from a review of the Elections Canada website that this ED is located in the province of Ontario.

Redacted 97. The complainant, ~ provided her complaint to the Commissioner on March 3, 2012. She repartèo''i:ïlâ'fêl:'ûlinif1hemotning of polling day she received a cali directing ber ta a polling station outside of the building in whicb sbe resides. The complainant said she cannet recall the location to which she was directed or the name of the persan or entity which called. The complainant said she does recall that the location to whlch she was directed was not ber assigned polling station, because that polling station is in the lobby ofthe building in which she resides. .

98. I have reviewed a document prepared by Elections Canada indicating changes in polling stations for ail BDs across Canada. That document does indicate that changes in polling stations did take place in this overall BD. On Septcmber 19,2012 I coniinned with Mr. Bing Li, a colleague ofMr. Andre L'Ecuyer, Chlef, Accessibility Unit at Elections Canada, and I believe it ta be a fact, that although sorne polling stations changed in this ED, for this complainant Elections Canada has no record of any change in polling station.

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99. I therefore believe that if the cali was as reported by the complamant, the caller or the person or persons who caused the cali to be made, knew the information to be false and thcreby did wilfully prevent or endeavour to prevent an clcctor from voting in a.o election. lndividual Electors in the Electoral District ofEglinton-Lawrence- ED #35019 lOO. Four complaints were received from Rogers subscribers resicling in the ED ofEglinton-Lawrence. I am awarc from a review of the Elections Canada website that this ED is Jocated in the province of Ontario. . ·

IOl.The first complainant,- provided his complaint to the Commissioner on March 29, 2012. He reportedThâfiî'iTaië"'A.jmf1011 he received a call from someone claiming ta be from Elections Canada advising bim that bis polling station had changed. He said be cannat reca1l the location to wbich he was directed. He said !hat tùtimately he voted at the polling station to wbich he has gone for previous elections.

I02.As stated at paragraph 18 of this my Infonnation, I am advised and I beiieve it to be a fact, that Elections Canada does not cal] electors with respect to a change in poiling station.

103.1 have revlewed a document prepared by Elections Canada indicating changes in polling stations for ail EDs across Canada. That document does indicate that changes in polling stations did take place in this overall ED. On September 19, 2012 J confinned with Mr. Bing Li, a colleague ofM Andre L'Ecuyer, Chief, Accessibility Unit at Elections Canada, and 1 believe it to be a fact, thal although sorne polling stations changed in this ED, for this complainant's address Elections Canada bas no record ofany change in polling station.

104.! thcrefore believe that if the cali was as reported by the complainant, the caller or the person or persans who caused the cali to be made, knew the information to be false and thereby did wilfully prevent or endeavour to prevent an eJecter from voting in an election.

1OS. The second comp(ajnant, Redacted provided his complaint ta the Commissioner on March 28, 2012. He reported that duriniihc. final few weeks leading up to the eleetion, he received at !east one robocall per day seeking support for what was purported to be the Liberal Party candidate in the ED. The complainant stated that by polling day, he was sa fed up with the calls that they caused hlm to seriously consider which party be would support.

106.0n Seplember 27, 2012 1 spoke by telephone witb Mr. Greg Van Stavaren, the Official Agent for the Liberal Party carnpaign in this ED. He told me that the campaign made live calls from its own offices in the ED. He said thal calls were made from the campaign office and were typically made between 9:30 AM and 8:00 PM He said !hat he at times listened to the caliers and found them to be polite and respectful to electors. Only electors who were previously identified as Liberal supporters received calls, and he said that a given clector could ex.pect to receive one or perhaps two calls during tbe writ period. He sald no calls were made froni the United States, nor were calls màde such thal a United States area code would appear in the recipient's call display window.

107.Given the number and duration oftime over which the calls were received, coupled with Mr. Van Stavaren's statements, I therefore believe !hat if the caUs were as reported by the complainant, the caller or the persan or persans who caused the caUs to be made, intended to induce the complainant to vote or refrain from voting for a particular candidate.

108. The third camp lainant,-~ provided his complaint to the Commissioner on March 9, 2012. He reported tll'iinm"tll.i~"fliiY'é'è':lbre polling day he received a live call at approximately · 11 :00 PM from a woman who clalmed to be calling on bchalf of the Liberal Party candidate in the ED. He said he cannat recall the number of the area code, but does recall that the area code inclicated an area in the United States. The complainant went on to say that the caller was rude and abrupt.

109.The comp1ainant did not disclose for which candidate he voted, but he did say the call influenced him negative! y toward the Liberal Party.

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16 llO.Given the lime of day the call was received, coupled with Mr. Van Stavaren's statements, 1 therefore believe that if the calls were as reported by the complainant, the caller or the persan. or persans who caused the calls to be made, intended to induce the corn plainant to vote or refrain from voting for a particular candidate.

111. The fourth camp lainant, - pro\1ded his complaint to the Commissioner on March 8, 2012. He reported that'aunnftfïèWnâ::'iiûeinoan on polling day he received a telephone cal! from a live caller who claimed to represent Elections Canada, and told him that his polling station had changed from that indicated on bis VIC. The camp lainant cannet recall the location to which he was directed, but he said that because he was new to the area, he was unable to locate the po Ding station to which he was directed and therefore did not vote.

112.1 have reviewed a document prepared by Elections Canada indicating changes in polling stations for ali EDs across Canada. That document does indicate that changes in polling stations did take place in this overall ED. On September 25, 2012 1 confumed with Mr. Andre L'Ecuyer, Chief, Accessibility Unit at Elections Canada, and 1 believe it to be a fact, that although sorne polling stations changed in this ED, for this complainant's address Elections Canada has no record of any change in polling station.

113.1 therefore believe thal if the call was as reported by the complainant, the caller or the person or persans who caused the cali to be made, knew the information to be false and thereby did wilfully prevent or endeavour to prevent an elector from voting in an election.

Individual Elector in the Electoral District of Etobicoke Centre-ED #35022 l14.0ne complaint was received from a Rogers subscriber residing in the ED ofEtobicoke Centre. I am aware from a review of the Elections Canada website that this ED is located in the province of Ontario.

liS. The complainant, -·provided ber complaint to the Commissioner on March 19, 2012. She reported that after 9:00AM on polling day she receivcd a message on ber answering machine from a persan who advised her that ber polling station had changed. She reported that because she had already voted, she did not think rouch of it until she beard the media reports about misdirecting telephone calls in February 2012. The complainant said she hung up beforethe message was completed. She cannat recall the location to which she was directed, but said she thought it odd that the place to which she was directed was not the place at which she had already voted (asper her VIC).

116.1 have reviewed a document prc:pared by Elections Canada indicating changes in polling stations for ali EDs across Canada, and I be lieve it to be a fact that Election.c; Canada has no record of any change in pol ling station in this ED.

117.1 therefore believe that if the caU was as reported by the camp lainant, the caller or the persan or persans who caused the ca!l to be made, knew the infomtation to be false and tbereby did wilfully prevent or endeavour to prevent an elector from voting in an election.

Individual Electors in the Electoral District ofKitchener-Wnterloo- ED #35039

ll&.Four complaints were received from Rogers subscrlbers residing in the ED of Kitchener-Waterloo. 1 am aware from a rcwiew of the Elections Canada website that this ED is located in the province of Ontario.

119. The first complainant,-, pr.ovided his complaint to the Commissioner on Marcb 2, 2012. He reported thafâOôütïiûa:a!femoon on polling day be received a live cal! advising bim that his polling station had changed from that indiœted on his VIC. He is not certain, but believes the caller stated that the call was from Elections Canada. The complainact stated he does not subscribe to cal! display and does not have a record of the incoming telephone number.

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120. The complainant said he had voted in the ad vance poils and his wife and daughter had already voted at tbeir assigned polling stations earlier in the day, so he knew the cal1er's information to be incorrect l21.As stated at pamgraph 18 of this my Information, 1 am advised and 1 believe it to be a fact, tbat Elections Canada does not cali electors with respect to a ebange in polling station.

122.1 have reviewed a document prepared by Elections Canada indicating changes in polling stations for ali EDs across Canada, and I believe it to be a fact that Elections Canada bas no record of any change in polling station in this ED.

123.! therefore believe that if the call was as reported by the complainant, the caller or the person or persans who caused the cali to be made, knew the infonnation to be false and thereby did wilfully prevent or endeavour to prevent an elector from voting in an election.

124.The second complainant Redacted provided. ber complaint to the Commissioner on March 2, 2012. Sbe repoitelf't'fiàfSI'iônlfôëfôrèpolling day, on April28 or 29,2011, she received a call advising her that the cali emanated from Elections Canada, and tclling ber that his po!ling station had changed. She said the location to which she was directcd was a "strange school somewhere". She said that she voted at an advance poli, but said tbat given ber scbedule, bad she followed the instruction and been misdirected, she likely would not have voted at ali.

125.As stated at paragraph 18 of this my Information, I am advised and 1 believc it to be a fact, that Elections Canada does not call electors with respect to a change in polling station.

126.1 have reviewed a document prepared by Elections Canada indicating changes in polling stations for ail EDs across Canada, and I believe it to be a fact that Elections Canada bas no record of any change in polling station in this ED.

127.I therefore believe that if the cali was as rcported by the complainant, the caller or the persan or persons who caused the cali to be made, knew the information to be false and thereby did wilfully prevent or endeavour to prevent an elector from voting in an election.

128.The third complainant, Redacted provided his complaint to 1he Commissioner on March 2, 2012. He repàrtëd."i11ât lhe àày before polling day he received a robocall advising hlm that his polling station had cbanged from that indicated on his VIC. He could not recall whether the caller said the cali was from Elections Canada. The complaioant did not recall the polling station to which he was directed to vote, but said it was "miles away from my normal one." The complainant and his wife ultimately voted asper their VI Cs.

129.As·stated at paragraph 18 of this my Information, I am advised and I believe it to be a fact, that Elections Canada does not cal] electors with respect to a change in polling station.

130.1 have revieWed a document prepared by Elections Canada indicating changes in polling stations for ali EDs across Canada, and 1 believe it to be a fact that Elections Canada has no record of any change in polling station in this ED.

131.1 therefore believe that if the cal] was as reported by the complainant, the caller or the person or persans who caused the cali to be made, knew the information to be false and thereby did wilfully prevent or endcavour to prevent an elector from voting in an election.

132. The fourth complainant-, provided his complaint to the Commissioner on March 24, 2012. He reported tôël'15ëforepôlling'day he received a robocall advising hlm that his polling station bad changed. He did not report whether the caller said the cali was from Elections Canada. The complainant said be ignored the call because he had heard on the news of others receiving such misleading calls, and he knew where his actual polling station was 1ocatcd.

133.1 have reviewed a document prepared by Elections Canada indicating changes in polling stations for ali EDs across Canada, and 1 believe it to be a fact that Elections Canada has no record of any change in polling station in this ED.

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134.I therefore be lieve that if the caU was as reported by the complainant, the caller or the person or persans who caused the cal! to be made, knew the information to be fulse and thereby did wilfully prevent or endeavour to prevent an elector from voting in an election.

Individual Electors in the Electoral District of Kitchener-Centre- ED #35037

135.Two complaints were received from Rogers subscribers residing in the ED of Kitchener-Centre. I am aware from a review of the Elections Canada website that this BD is loclrted in the province of Ontario.

136.Tbe first complainant, Redacted :provided his complaint to the Comm.issioner on March 16, 2012. Here'j)oneèl'lliafôÏïpôiiüîgëlâyliè received a robocall from someone who stated the cali was from Elect ions Canada to advise hlm that his polling station bad cbanged. The complainant said that because he had voted in the advance polis, he did not listen to the entire message. He cannet say the location to which he was directed to vote.

137.1 have reviewed a document prcpared by Elections Canada inclicating changes in polling stations for ali EDs across Canada. That document does indicate that changes in polling stations did take place in this overall ED. On Septemba 24, 2012 1 confirmed with Mr. Andre L'Ecuyer, Chief: Accessibility Unit at Elections Canada, and 1 believe it tc be a fact, that although sorne polling stations changed in this ED, for this complainant's address Elections Canada bas no record of any change in polling station.

138.1 therefore qelieve that if the cali was as reported by the cornplainant, the caller or the pers on or persans who caused the cal! to be made, lmew the information to be false and thereby did wilfully prevent or end cavour to prevent an elector from voting in an election.

139. The second complainant, Redacted provided his complaint to the Commissioncr on March 16, 2012. He rcportt>Û tlùii just lierore' pollitig day be received a cali advising hlm that the call emanated from Elections Canada, and telling hlm that his polling station had changed from that indicated on his VIC. He did not provide the location to which be was clirected to vote.

140.As stated at paragraph 18 of this my Information, l am advised and I believe it to be a fact, that Elections Canada does not cal! electors with respect to a change in polling station.

141.! have reviewed a document prepared by Elections Canada incliclrting changes in polling stations for al! EDs across Canada, and I believe it to be a fact that Elections Canada has no record of any change in polling station .in this ED.

142.1 therefore believe that if the cali was as reported by the complainant, the caller or the person or persans who caused the cali to be made, knew the information to be fulse and thereby did wilfully prevent or endeavour to prevent an elector from voting in an election.

lndividual Electors in the Electoral District of London North Centre-ED #35043

143.Two relevant complaints were received from Rogers subscribers residing in the ED of London North Centre. I am aware from a review of the Elections Canada website that this BD is located in the province of Ontario.

144.Tbe first complainant, Redacted ;provided her complaint to the Commissioner on March 28, 2012. She reported''fl'iiifêlôseïèipOUiil'g day she received a live cali from a female who advised the complainant that her pol!ing station had changed from that indicated on her VIC; she reported the caller told her she should vote at a location which she can no longer recall on Waterloo Street, London. The complainant said she cannet recall whether the caller stated she represented a particular entity, but did recall that the caller was not professional in her approacb. The complainant said that when she questioned the caller about the location, the caller simply hung up.

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I45.As stated at pamgraph 18 of this my Information, 1 am advised and I believe it to be a fact, !hat Elections Canada does not cali electors with respect to a change in polling station.

146. I have reviewed a document prepared by Elections Canada indica±îng changes in polling stations for all EDs across Canada. Tbat document does indicate that changes in polling stations did take place in this overall ED. On September 19,2012 I confirrned withMr. Bing Li, a colleague of M. Andre L'Ecuyer, Chief, AccessibiliLy Unit at Elections Canada, and I believe it to be a fact, that although sorne polling stations changed in this ED, for this complainant's address Elections Canada has no record of any change in polling station.

147.1 therefore believe that if the cali was as reportee! by the complainant. the caller or the persan or persans who caused the call to be made, knew the information to be false and thereby did wilfully prevent or endeavour ta prevcnt an elector from voting in an election.

148.The second complainant, Redacted ; provided his complaint ta the Commissioner on March 16, 2012. He reportë(I'tllârtiërêëeivêa'îlÜmerous robocalls and live calls from persans who stated they were calling ta scek support on behalf of the Conservative Parly of Canada. He said the calls were constant and that he received over a dozen in total during the period of the election. The complainant reported that during one live cali. with a woman, he asked her to place hlm on a "do not cali" list because of the volume of calls. He said sbe responded "We· can call anyone at any time and there 's nothing you can do aboutit". He reported that from that point on, automated calls occurred on an "every other day basis". He reported that following one ofthese calls, he recalls checking on the internet the number that showed on his caU display, and he recalls that it began witb. wbat he detemùned ta be an Alberta area code. He did not report the specifie area code or the telephone number.

149. In addition, the complainant reported that sorne of the caUs he received were from caliers who stated they rcpresented the Conservative ParLy of Canada, advising bim that his polling station bad changed from that indicated on his VIC. He reported tbat be cannat recall the location(s) to which be was directed. l50.0n August 7, 2012 l spoke by telephone with Mr. Arthur Hamilton, legal counsel for the Conservative ParLy of Canada. Mr. Hamilton informed me that he is providing assistance to manbers of the Conservative Party caucus and I should assume be is the point of contact for any requests. On August 30,2012 and October 2, 20121 spoke with Mr. Hamilton and discussed with hlm the issue of whether the Conservative Party or the appropriate campaign official would be available to be interviewed with respect to alleged telephone calls in other EDs. On October 30, 2012 Mr. Hamilton advised me thal he anticipates being able to :fucilitare such interviews in the near future. That same date I asked Mr. Hamilton if he would also arrange an interview of the appropriate campaign official in tlùs ED. 1anticipate sucb an interview also being arranged in the near future.

151.! have reviewed a document prepared by Elections Canada indicating changes in polling stations for ail EDs across Canada. That document does indicate that changes in polling stations did take place in this overall ED. On September 19,2012 I confirmed with Mr. Bing Li, a colleague of M. Andre L'Ecuyer, Chie~ Accessibility Unit at Elections Canada, and I believe it ta be a fact, that although sorne polling stations changed in this ED, for 1his complainant's address Elections Canada bas no record of any change in polling station.

152.1 therefore believe that if the calls were as reported by the complainant, the caller or the persan or persans who caused the calls to be made, knew the information to be false and thereby did wjl:fully prevent or endeavour to prevent an elector from voting in an election.

153.1 believe further thal if the calls were as reportcd by the complainant, the caller or the persan or persans who caused the ca Ils to be made, intended to induce the cornplainant to vote or refrain from voting for a particular candidate.

Individual Elector in the Electoral District of London West-ED #35044

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154.0ne complaint was rece1ved from a Rogers subscrlber residing in the ED of London West. 1 am aware from a revîew of the Elections Canada website that this ED is loca1ed in the province of Ontario.

155.The complainant,. Redacted provided his complaint to the Commissioner on March 7, 2012. l{è-reponëü 'i!i.àl:oiïtùë·aay or or the day before polling day having answered a robocall which stated it emanated from Elections Canada advising bim that hls polling station had changed. He said he had already drlven by bis polling station (as assigned by his VIC) and seen the election signs, so he did not listen to the entire message and hung up. He sa.id that becausc be hung up, he was not able to pro vide the location to which he had been clirected.

156.As stated at pamgraph 18 of this my Infonnation, I am advised and I believe it to be a fact, that Elections Canada does not caU electors with respect to a change in polling station.

157 .I have revie..ved a document prepared by Elections Canada in.dicating changes in polling stations for all EDs across Canada, and I believe it to be a fact that Elections Canada bas no record of any change in polling station in this ED.

158.1 therefore believe that if the caU was as reported by the complainant, the caller or the persan or persans who caused the call to be made, knew the information to be fillse and thereby did wilfully prevent or endeavour to prevent an elector from voting in an election.

Individu al Elector in the Electoral District ofMarkham-Uni onville- ED #35045

159. One complaint was received from a Rogers subscn'ber residing in the ED ofMarkhmn-Unionville. 1 am aware from a review of the Elections Canada website that this ED is located in the province of Ontario.

160. The complainant, 1-hfti!ifl provided his complaint to the Commissioner on March 11. 2012. 1 have corresponded \vith this'èomplainant via e-mail. He reported that he received a robocall within a day or two of polling day to advisc hlm that his polling station had changed. The complainant told me that he cannat recall the location to which be was directed, nor can he recall whether the caller stated he represented a particular entity.

16l.I have reviewed a document prepared by Elections Canada indicating changes in po !ling stations for ali EDs across Canada, and I believe it to be a fact that Elections Canada bas no record of any change in polling station in this ED.

162.1 therefore believe that if the cali was as reported by the cornplainant, the caller or the persan or persans who caused the call to be made, knew the infomtation to be false and thereby did wilfully prevent or endeavour to prevent an elector from voting in an election.

Individu al Elector in the Electoral District ofN epean Carleton-ED #35052

163. One complaint was received from a Rogers subscriber residing in the ED ofNepean Carleton. I am aware from a review of the Elections Canada website that this ED is located in the prov.ince of Ontario.

164. The complainant, -:provided her complaint to the Commissioner on Maréh 19, 2012. She reportedtfià'fdunnginëmc!ming on polling day she received a robocall which stated it emanated from Elections Canada, and advised ber that her polling station bad changed from that indicated on his VIC. She said she was busy and hung up; she cannot state the location to which the caU directed her.

165.As stated at paragraph 18 of this my Information, I am advised and I believe it to be a fact, that Elections Canada does not cali electors with respect to a change in polling station.

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166.1 have reviewed a document prepared by Elections Canada indicating changes in polling stations for all EDs across Canada, and 1 believe it to be a fact that Elections Canada bas no record of any change in polling station in this ED.

167.1 thercfore believe that if the cali was as reported by the complainant, the caller or the person or persans who caused the cali to be made, knew the information to be false and thcreby did wil:fully prevent or endeavour to prevent an elector from voting in an election.

Individual Elector in the Electoral District ofNewmarket~Aurora- ED #35053

168. One complaint was received from a Rogers subscriber residing in the ED ofNewmarket~Aurora. I am aware from a review of the Elections Canada website that this ED is located in the province of Ontario.

169. The complainant,- provided hls complaint to the Commissioner on April6, 2012. He reported that hè"tl::e:l!\'Vë'ttiW'O'ot·three live telephone caUs from caliers who told hlm they were secking support for Liberal Party candidates in the 519 area code. The complainant stated that when he would explain to the caliers that he lived in the 905 area code, their response would typically be "Oh. sarry".

170. The complainant stated his concem that someone could have been "trying to make me develop an opinion about the liberais (sic) as being disorganized and not worthy ofmy vote." 171.! therefore believe that if the caUs were as reported by the complainant, the caller or the person or persans who caused the calls to be made, intended to induœ the complainant to vote or refrain from voting for a particular candidate.

lndividual Elector in the Electoral District of Ottawa-Centre-ED #35062

172. One complaint was received from a Rogers subscriber residing in the ED of Ottawa~Centrc. I am aware from a review of the Elections Canada website that this ED is located in the province of Ontario.

173.The complainant, .Qj@ij :, provided her complaint to the Commissioner on February 24, 2012. She reported that she received numero us robocalls whlch stated they were calling on behalf of the Liberal Party candidate in the ED. On September 21 and October 1, 2012 1 spoke with the complainant. She told me that thcse calls were received at various times of day with the latest call(s) being approximately 10:00 PM. She said her issue was the sheer volume of the calls she received. She said the number of robocalls she rcccived. was "betweenfiVe and te n".

174.0n October 1, 2012 I spoke by telephone with Ms. Jacqueline Choquette, the Campaign Manager for the Liberal Party campaign in this ED. She advised me that the campaign made bath live and robocalls. She said the live calls were intended to identify supporters. If an elector indicated support for the candidate or said they were unsure, that elector cocld possibly receive anoth.er call,

175.Ms. Choquette said the campaign also sent 2 robocalls. The fust was the day beforc the ;\dvance Polis opened (on April21, 2011) and the second the day before polling day (on May 1, 2011). These robocalls were sent only to people who had indicated support for the Liberal Party candidate. in the ED. She said that ali calls, whcther robocall or live, were made betwcen the hours of 1:00 PM and 9:00PM at the latest. An elector who was a supporter of the Liberal Party, therefore, could expeci to receive four calls at most.

176.I am aware of the political party supported by the complainant. Based on that information and the comments of Ms. Choquene, 1 am aware that the complainant sbould have received at most 2 live calls from the Liberal Party campaign, and no robocalls.

177.Given the number of robocalls reported and the time of day at !east one of the calls was received, I therefore believe that if the calls were as reportee! by the complainant, the person or persans who

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caused the calls ta be made, intended to induce the complainant to vote or refrain from voting for a particular candidate. lndividual Electors in the Electoral District of Ottawa-Orleans-ED #35063

178. Three corn plaints were received from Rogers subscribers residing in the ED of Ottawa-Orleans. I am aware from a review of the Elections Canada website that this ED is located in the provmce of Ontario.

179.The fust complainant, 1;-provided her complaint to the Commissioner on March 3, 2012. She reported thaf'snèreëëi"Vëël'ii. live call carly in the election period asking if sbe and her family had decided which party they would support. She said she indicated to the caller which party they would support.

180.The complainant said that starting a few days later, she began to receive inconve11ient robocalls from wbat the caller stated was the Liberal Party. She said that during the last two weeks of April 2011 she received 3 to 5 sucb calls between the hours of 9:30 PM to 11:30 PM. The complainant said sbe found the calls "very irritating" and said she "even considered not voting."

1& 1. I therefore believe 1hat if the cal\s were as reported by the corn plainant, the caller or the persan or persans who caused the calls to be made, intended to induce the camp lainant ta vote or refrain from voting for a particular candidate.

182. The second complainant, 1111.1111 provided his complaint to the Commissioner on March 9, 2012. He reported tbat'ôiïtnë êlaybëfèiie polling day he received a telephone cal1 from a caller who said he was calling on beha[f of the Liberal Party. The complainant described the caller as " ...very rude and pushy".

183.0n September 24, 20121 spoke with Mr. Charles Oibson, the Campaign Manager for the Liberal candidate in this ED, conceming the nature of the two foregoing complaints. Mr. Gibson infonned me that no caUs were made by the Liberal campaign in this ED aftcr 9:00 PM He informed me as weil that he had complained ta Elections Canada at the time of the election witb respect ta complaints he bad received conceming inappropriate telephone calls received by electors during the carnpaign supposedly emanating from lhe campaign of the Liberal Party candidate in this ED.

184.1 have reviewed complaints received by the Commi.ssioner and found that Mr. Gibson's complaint was received on April 20, 2011. At that time he forwarded a complaint from an elector who said he received a caU after 9:00 PM from a male who claimed to be calling from the Liberal Party campaign in the ED. The complaint said tho caller made persona! comments that were offensive. Mr. Gibson complained that this act was an '"attempt by a 3rd party ro il1fluence vo/ers not to vote Liberal." Because that complaint was generated prior to April20, 2011 (and is outside of the time for which this arder sought), the fact of it being reported is included in this my Information, but it is not relied on in support of the arder souglrt pertaining to the period April25 to May 2, 2011. Accordingly, this complainant is not one of the 45 included in this my Information.

185.When the two foregoing complaints and the complaint forwarded by Mr. Gibson are viewed in the context of other sitni!ar complaints set out in this my Information, I therefore believe that if the calls were as reported by the complainant, the caller or the persan or persans who caused the cal~ to be made, intended to induce the camp lainant to vote or refrain from voting for a particular candidate.

186. The third complainant, Redacted provided ber complaint ta the Cornnùssioner on April 16, 2012. She reported tliât on polling day she received a telephone cali advising her that her polling station had cbanged from that indicated on her VIC. She could not recall the location ta which she v.'aS directed nor does she recall whether the caller stated the cali ernanated from any given entity. The complainant said she and her husband voted as per the flyer (VIC) sent to her by Elections Canada. Her actual polling station (as per the VIC) was different from the one to whlch she had been directed.

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187.As stated at paragraph 18 of this my Infonnation. I am advised and I believe it to be a fact that Elections Canada does not cal! electorn with respect to a change mpolling station. '

188.1 have reviewed a document prepared by Elections Canada mdicating changes in polling stations for ali EDs across Canada, and I believe it to be a fact that Elections Canada has no record of any change in polling station in this ED.

189.1 therefore believe that if the cali was as reported by the complahlant, the caller or the persan or pernons who caused the cal! to be made, knew the information to be false and thercby did wilfully ~event or endeavour to prevent an elector from voting in an election. lndividual Elector in the Electoral District of Ottawa South-ED #35064

190. One complaint was received from a Rogers subscriber residing in the ED of Ottawa South. 1 am aware from a review of the Elections Canada website that this ED is located in the province of Ontario.

191. The cam plainant, . Ret!acted . . . provided ber complaint to the Commissioner on Aprill6, 2012. She reported that pnor tô" pollilig day she received a live call from a woman who identified . bernelf as calling from the Liberal Party campaign of candidate David McGuinty and told the complainant that ber polling location bad changed to a school. The complainant does not recall the name of the school; she said it was unknown to ber. The complainant said because she did not know the school, she asked the caller where it was, and said the caller replied "How should I know." The compiamant said she later confumed on her VIC ber correct polling station. whicb was not the polling station to which she had been directed.

192.1 bave :reviewed a document prepared by Elections Canada indicating changes in polling stations for ali EDs across Canada, and 1believe it to be a fact that Elections Canada has no record of any change in po !ling station in this ED.

193.1 therefore believe that if the cali was as reported by the eomplainant, the caller or the pernon or pernons who caused the cali to be made, knew the information to be false and thereby did wilfully prevent or endeavour to prevent an elector from voting in an election. lndividual Electors in the Electoral District of Ottawa·V ani er-ED #35065

194. Two complaints were received from Rogern subscribern residing in the ED of Ottawa- Vanier. am aware from a review of the Elections Canada website that this ED is located in the province of Ontario. Redacted 195.The first <:omplainant, provided his complaint to the Cornmissioner on March 5, 20 12. He rej)tlrted· toàl: prlor. io pol1ing day he received a live telephone ca1l from a man who stated he was calling form the Liberal Party of Canada and asking the complainant to renew his membership in the Party. The complainant said the caller was ''very aggravating and disrespectjùr'. The complaint said that in light of his awareness of the robocalls story in the media, he wondered whether he might be " ...a victim of a play to malœ me not vote for the liberal party at rhe last federal election (sic)".

196. When this complaint is viewed in the context of ether complaints of calls apparently intended to . annay electors as set out in this my Infonnation, J therefore believe tbat if the cal!s were as reported by the complainant, the caller or the pernon or persans who caused the calls to be made, intended to induce the complainant to vote or refrain from voting for a particular candidate.

197. The second complainant, Redar.ted ; provided ber complaint to the Commissioner on March 2., 2012. 1 spoke W'ltli.~"tllis'~èllffipJailllil'ir'on June 6, 2012. She reported tbat shortly before polling day, she received a live cal! from a male. Sbe said the male told ber that ber polling station was c!osed and she would have to travel to another polling station located on Baseline Road in Ottawa. The complainant did not recall the location on Baseline Road to wbich she was directed, nor could she recall whether the caller said he represented any particular entity.

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198.0n September 14, 2012, 1 conducted an online query on Google maps and found tha.t the closest place on Baseline Raad to the home of the complainant is over 12 kHometers away.

199.1 bave reviewed a document prepared by Elections Canada indicating changes in polling stations for ali EDs across Canada. That document does indicate tbat changes in polling stations did take place in this overall ED. On September 19, 2012 I confirmed with Mr. Bing Li, a colleague of M. Andre L'Ecuyer, Chief: Accessibility Unit at Elections Canada, and 1 believe it to be a fact, that although sorne polling stations changed in this ED, for this complainant's address Elections Canada bas no record ofany change in polling station.

200, 1 therefore bell eve that if the ca1l was as reported by the complainant, the caller or the persan or persans who caused the caU to be made, knew the information to be fa1se and th.ereby did wilfully prevent or endeavour to prevent an elector from voting in an election.

Individual Electors in the Electoral District of Ottawa West-Nepean- ED #35066

20l.Three complaints were received from Rogers subscribers residing in the ED of Ottawa West - Nepean. I am aware from a review of the Elections Canada website tbat this ED is Iocatcd in the province of Ontario.

202. The fust complainant, -;provided ber complaint ta the Commissioner on March 5, 2012. She reported tluitWitiiiîïtliëTàSt three days prior to polling day, sbe received five to six live telephone calls in wbich the caller stated that the calls emanated from the campalgn of Ken Dryden. From my review of the website of Elections Canada. I know Mr. Dryden to have been the Liberal Party candidate in the ED of York Centre in the 41 51 GE. The complainant said she speke with different caliers, but said the calls always started with someone saying words such as "We're calling on behalf of Ken Dryden to ask for your support."

203. The complaint said !hat at !east four of the calls were received after 10:00 PM and that one was received at approximately 11 :00 PM.

204.0n September 17, 2012 1 conducted an online review of the website Google maps. I know from tha.t review !hat the distance from Ottawa West-Nepean ta the general area of York Centre (located in Toronto, Ontario) is approximately 450 kilometers.

205.0n September 20, 2012 I spoke with 1-fr. Cary Pike, who was the Campaign Manager for Mr. Dryden in York Centre. He advised me that he is aware of no complaints to the campaign regarding calls out of the ED. He said no calls were made after about 8:30 P.M and that a company known as Prime Contact made "about 95%" of the campaign's caUs. These were live calls. He said Prime Contact bad instructions to call a household only one time and that Prime Contact used a generic script to identify whether electors would be supporting the Liberal candidate in the ED.

206.1 therefore believe that if the caUs were as reported by the complainant, the caller or the person or persans who caused the calls ta be made, intended to induce the camp lainant to vote or refrain from voting for a particular candidate.

207.The second complainant, -·provided bis complaint ta the Com.missioner on March 17, 2012. The complalnanfrèportëèi'tf,ai: prier ta polling day, he received a robocall wbich stated the cali emanated from Elections canada informing him that his polling station had changed from tbat indicated on bis VIC. He could not recall the location to which he had been directed, but said he did go there to see ifthere was a poli at tbat location; be said tbat when he arrived, there was not

208.The complainant was able ta provide two telephone numbers from which he said election related calls may have emarurted. Bath numbers are indicated .as being in the 613 area code. I am aware from a review of the internet and from personal knowledge that the 613 area code takes in eastern Ontario. The complainant stated that the first number called him three times during the period April 20 - 21. 20 ll. He said the second number called him on April29, 2011. He did not recognize either number.

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209. I have attempted to obtain subscnoer information pertaining to these numbers. I was advised by Rogers Security on August 30, 2012 !hat the first number is registered to Sprint Residential Customers, Willowdale, Ontario. l am cUITently awaiûng an update from Rogers Security with respect to the subscriber of this number. I was advised on August 31,2012 by Bell Corporate Security that the second number is registered to Distributel Communications (Distributel). On September 28, 2012 1 sought subscriber information for that number from Distrlbutel. To date I have not received that infonnation.

21 O.Because the complainant is not certain whether either number is the number that provided hlm the misdirection with respect to his polling station, I have not included the specifie telephone number of either in this my Infonnation.

211.! have reviewed a document prepared by Elections Canada indicating changes in polling stations for all EDs across Canada, and I believe it to be a fact tbat Elections Canada bas no record of any change in pol ling station in this ED,

212.1 therefore believe that if the cali was as reportee! by the complainant, the. caller or the person or persons who causee! the caU to be made, knew the infonnation to be false and thereby did wilfully prevent or endeavour to preVent an elector from voting in an election.

213.The third complainant, Redacteo ; provided her complaint to the Commissioner on February 28, 2012. She reportelt'ûlât'pnàrroj:iolling day she recetved a call advising her that ber polling station had changed. Sbe said she could not recall whether the caller indicated the cali emanated from a particular entity, nor could shc recall the location to which she was dirccted to vote.

214.Thc complainant said the call was received after she had voted at an advance poiL As indicated above at paragraph 15, advance poils were set up on Aprl122, 23 and 25,2011. ltis therefore likcly that the cali was received sometime during the period April25 to May 2, 2011, which is the period for the order sought.

215.I have reviewed a document prepared by Elections Canada indicating changes in polling stations for ali EDs across Canada, and Tbelieve it to be a fact that Elections Canada bas no record of any change ln polling station in this ED.

216.1 therefore believe that if the call was as reported by the complainant, the caller or the pcrson or persans who caused the ca1l to be made, knew the information to be false and thereby did wilfully prevent or endeavour to prevent an elector from voting in an election

lndividual Electors in the Electoral District ofSt. Pau1's-ED #35077

217. Two complaints were received from Rogers subscribers residing in the ED of St. Paul 's. I am aware from a review of the Elections Canada website that this ED is located in the province of Ontario.

218. The fust comp!ainant, . ! provided bis complaint to the Commissioner on March 2, 2012. He repori'ènfiiirè1iimig1lïè'"w'êCk leading up to polling day he received several robocalls around 9:00 PM purporting to be from the Liberal candidate in his ED which he said "made presumptuous claims about me supporting them". He said he only listened completely to two of the approximately four calls, but said they sounded "amateurish" and "smug". He said he ~idn't think much of them at the time, but reported them after hearing media stories about robocalls.

219. I bclieve his intent in filing a complaint was to make the point that someone may have been attempting to influence his voting behaviour on polling day. I therefore believe that if the calls were as reportee! by the complainant, the caller or the persan or persans who caused the calls to be made, intended to induce the complainant to vote or refrain from voting for a particular candidate.

220.The second complainant, -·providedher complaint to the Commissioner on March 8, 2012. 41 51 GE. She respÔ~d'ed.on ·sëptember 4, 2012, also via voicemail. that the provider was Rogers. The complainant reported that prier to polling day, she received a robocall in a male voice

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at 2:00 AM. She reported the caller was seeking support for the Liberal Party candidate. The corn plainant sa.id she assumed the caller was a "pest" and hung up.

221.0n October 1, 2012 1 received a voice message from Mr. Andrew Lane, the Official Agent for Ms. Carolyn Bennett, the Liberal Party candidate in this ED. He stated that the campaign did not use robocalls to contact electors, with one exception. He said that during the election period, the campaign became aware of considerable vandalism taking place (slashed car tires, graffiti, etc.) at sorne homes in the ED at which a Liberal candidate lawn sign was placed. He said a robocall was sent only to the people the carnpaign knew had such a lawn sign, to inform them of the vandalism and to advise them that if they vâshed to bave the lav11n sign removed, to contact the carnpaign office. He said that ali other calls were live calls, and said they were made by campaign volunteers between the hours of9:00 AM and 9:00PM, using a script oftalking points.

222.Given tbat bath complainants reported having received robocalls and the time of day the cali was received by the second complainant, coupled with the comments of Mr. Lane, I therefore believe that if the calls were as reported by the complainants, the caller or the persan or persans who caused the caUs to be made, intended to induce the complainants ta vote or refrain from voting for a particular candidate.

223.1 am aware that the campaign of Ms. Bennett complained to the Commissioner on April20, 2011 concerning complaints ofwhich the campaign had become aware ofwith respect ta caUs made in the early everûng, ostensibly seeking support for Ms. Bennett, durlng the Seder of the Jewish holid!iy, Passover. The campaign of Ms. Bennett denied making any such calls, and indicated t1utt caUs such as tbese during a religious ceremony would be seen as a nuisance by the recipients. Individu al Elector in the Electoral District of Scarborough Southwest-ED #35084

224.0ne compla.int was received from a Rogers subscriber residing in the ED of Scarborough Southwest. I am aware from a review of the Elections Canada website that this ED is located in the province of Ontario.

225. The complainant, provided his corn plaint to the Comrnissioner on May 14, 2012. He reported that between-!. 10:00 PM and 11:00 PM on the day before polling day he received a robocall in a computer generated male voice, advising hlm that the call was from Elections Canada and stating that his polling station had changed. He said he did not write dawn the location to whicb he was directed, and cannat recall it. He said be does not bave a record of the incoming telephone number for this cali, but said he recalls that it was a long distance number (in his cali display window). The complainant said he checked and found !hat his actual polling station was still "around the corner' where he bad voted in previous elections.

226.As stated at paragraph 18 of this my Information, I am advised and I believe it to be a fact, that Elections Canada does not call electors with respect to a change in polling station.

227 .I have reviewed a document prepared by Elections Canada indicating changes in polling stations for aU EDs across Canada, and I believe it to be a fact that Elections Canada has no record of any ebange in polling station in this ED,

228.1 therefore believe that if the caJ1 was as reported by the complainant, the caller or the persan or persans who caused the caU to be made, knew the information to be false and thereby did wilfully prevent or endeavour to prevent an elector from voting in an election.

Individual Electors in the Electoral District of Toronto Centre-ED #35093

229. Two relevant complaints were received from Rogers subscribers residing in the ED of Toronto Centre. 1 am aware from a review of the Elecûons Canada website !hat this ED is located in the province of Ontario,

230. The fust camp lainant, Redacted ;provided his complaint to the Commissioner on March 16, 2012. He reported'lll!!flltlfiifg 'llië"'Wê~R· prior ta polling day he received a robocaU in what he

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believes to be a computer generated male voice, advising him !hat the cali was from Elections Canada and stating !hat his polling station had changed. The complainant did not recall the location to which he bad been directed.

231. As stated at paragraph 1& of this my Information, 1 am advised and 1 believe it to be a fact. that Elections Canada does not cali electors with respect to a change in po !ling station.

232.1 have reviewed. a document prepared by Elections Canada indicating changes in polling stations for all EDs across Canada. That document does indicate that changes in polling stations did take place in this overall ED. On September 18,20121 confirmed with Mr. Bing Li, a colleague of M. Andre L'Ecuyer, Chief, Accessibility Unit at Elections Canada, and I believe it to be a fact. !hat although sorne polling stations changed in this ED, for this complainant's address Elections Canada has no record of any change in po \Jing station.

233.1 therefore believe that if the call was as reported by the complainant, the caller or the person or persans who caused the call to be made, knew the information to be false and thereby did wilfully prevent or endeavour to prevenJ: an elector from voting in an election.

234. The second complainant, Redac:e::J provided. her complaint to the Cornmissioner on March 7, 20i2.'"miërej)ôrtèêf lliàtoïiôfàiiaut polling day she received a live telephone cali from someone asking who she would vote for. Sbe said she indicated ber intention and was immediately told by the caller that ber polling station had changee! to a church on Gerrard Street East in Toronto. The complainant did not report the name of the church to which she was directcd by the caller, Shc said she went to the new location on polling day to find !hat it was not a polling station. She then went to the polling station at which she bad votee! in previous elections and was able to vote,

235. The complainant could not recall wbether the caller stated the cali emanated from any particular entity.

236.1 have reviewed a document prepared by Elections Canada indicating changes in polling stations for all EDs across Canada, and l believe it to be a fact that Elections Canada has no record of any ebange in polling station in this ED.

237.1 tberefore believe that if the ca1l was as reported by the complainant. the caller or the person or persons who causee! the call to be made, knew the information to be false and tbereby did wilfully prevent or endeavour to prevent an elector from voting in an election

Individual Elector in the Electoral District of Toronto-Danforth- ED #35094

238.0ne complaint was received from a Rogers subscriber residing in the ED ofToronto-Danforth. afu aware from a review of the Elections Canada website that this ED is located in the province of Ontario.

239.The complainant,- provided ber complaint to the Commissioner on March 8, 2012. She reported that on polling day, after she had voted and not long befure the poils closed in the evening, she received a live telephone call from a female who said sbe was from the Liberal Party, but calling on behalf of Elections Canada. The corn plainant said the caller told h.er that her polling station had changee!. The complainant reportee! she could not recall the location to which sb~ was directed, but said it ·was "far".

240.As stated at paragraph 18 of this my Information, I am advised and l believe it to be a fact, tbat Elections Canada does not caU electors with respect to a change in polling station.

241.1 have reviewed a document prepared by Elections Canada indicating changes in polling stations for ail EDs across Canada, and 1 believe it to be a fact that Elections Canada has no record of any change in polling station in this ED.

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242.1 therefore believe that if the cali was as reported by the complainant, the caller or the person or persans who caused the cali to be made, knew the information to be false and thereby did wilfully prevent or endeavour to prevent an elector from voting in an election.

Complaints from Two EDs in Alberta

Individual Elector in the Electoral District of Edmonton East- ED #48013

243.0ne complaint was received from a Rogers subscriber residing in the ED of Edmonton East I am aware from a review of the Elections Canada website that this ED is located in the province of Alberta. - 244. The com.plainant ~ provided bis complaint to the Commissiooer on January 3, 2012. He reported that orï'illê aa)ioerorepolling day he received a robocall in a female voice. He said the caller stated she was calling from Elections Canada to advise the complainant that his polling station had changed from that indicated on his VIC. The camp lainant did not report the name of1he polling station to which he was directed.

245.As stated at paragraph 18 of this my Information, I am advised and I believe it to be a fact, that Elections Canada does not call electors with respect to a change in polling station.

246.1 have reviewed a document prepared by Elections Canada ind.icating changes in polling stations for ali EDs across Canada, and I believe it to be a fact that Elections Canada has no record of any change in po !ling station in this ED.

247.1 therefore believe !hat if the cali was as reported by the complainant, the caller or the persan or persans who caused the cali to be made, knew the information to be fulse and thereby d.id wilfully prevent or endeavour to prevcnt an elec!or from voting in an election. lndividual Elector in the Electoral District of Edmonton-Mill Woods- Beaumont-ED #48011

248.0ne complaint was received from a Rogers subscriber residing in the ED of Edmonton-Mill Woods-Beaumont. l am aware from a review of the Elections Canada website that this ED is located in the province ofAlberta.

249. Redacted provided her complaint to the Commlssioner on March 12, 2012. She reported thai on the day before polling day he received a robocall advising her that ber polling station bad changed. The complainant could not recall the location to which she was d.irected, nor can she reca!l whether the caller stated the cali was from a particular entity.

250.1 have reviewed a document prepared by Elections Canada indicating changes in polling stations for all EDs across Canada, and I beüeve it to be a fact that Elections Canada has no record of any change in po!Hng station in this ED.

251.1 therefore believe that if the cali 'Yt'BS as reported by the complainant, the caller or the persan or persans who caused the ca1l to be made, knew the infonnation to be false and thereby did wilfully prevent or endcavour to prevent an elector from voting in an election.

Complaint from One ED in British Columbia lndividual Elector in the Electontl District ofVanconver- Centre-ED #59029

252.0ne complaint was received from a Rogers subscriber residing in the ED of Vancouver Centre. 1 am aware from a review of the Elections Canada website that this ED is located in the province of British Columbia.

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253. The complainant, Redacled , provided his cornplaint to the Commissioner on March 1 2012. He reported thatln the late' aftemoon or evening on polling day, he received a roboca!i advising him that the cal! emanated from Elections Canada and indicating that his polling station had changed. The complainant did not report the name of the location ta which be was directed, and said he hung up before listening to the entire message.

254.As stated at paragraph 18 of this my Information," I am advised and I believe it to be a fact, tbat Elections Canada does not cali electors with respect to a change in pol ling station.

255.! bave reviewed a document prepared by Elections Canada ind.icating changes in polling stations fur ali EDs across Canada. That document does indicate thal changes in polling stations êiid take place in this overall ED. On September 25, 2012 I confinned with Mr. Andre L'Ecuyer, Chief; Accessibility Unit at Elections Canada, and I believc it to be a fact, tbat although sorne polling stations cbanged in this ED, for this complainant's address Elections Canada has no record of any change in polling station.

256.1 therefore believe that if the cali was as reported by the complainant, the caller or the persan or persans who caused the cali to be made. knew the information ta be false and thereby did wilfully prevent or endeavour to prevent an eJecter from voting in an election.

Example of Specifie Misleading Call- Electoral District of London West-'ED #35044

257.Although I cannet say that the messages in the preceding complai.nts align with the infonnation provided in the next few paragraphs, I am aware that at !east one specifie misleading robocall was received in the ED of London West. On March 19, 2012 Mr. Douglas Ferguson, the Liberal Party of Canada candidate in the ED of London West, provided my colleague, Investigator Ronald Lamothe, with a digital recording of a telephone cali he said had been received by an elector in tbat EDon polling day, May 2, 2011.

258.0n August 30, 2012 I speke by telephone with beth Mr. Ferguson anc Redacted the elector who received the recorded cali. The elector confirmed that she 'reêèivëd'1ne reëôrdeâ the message. She said she held a digital tape recorder up to the speaker of ber telephone, recorded the message and provided it to ?l.fr. Ferguson. Mr. Ferguson st11ted to me that his campaign had not made such cal!s or prepared such a script

259. The message, in a female voice, stated:

"Helio, l'm calltng on behalf ofDoug Ferguson our Liberal candidate. I'mjust calling to remind you that today is the po/ling day. Please bring your two pie ces of Identification when you vote, and you should be going to vote at the Emily Carr Public School, Ï/4 Hawthorne Raad, and uh.. thankyou."

260.0n September 18, 2012 I confinned with Mr. Bing Li, a colleague ofMr. Andre L'Ecuyer, Chie4 Accessibility Unit at Elections Canada, ll!ld I believe it to be a fact, that the Emily Carr Public Scbool was used as a polling station during the 41st GE, and that the polling station for this elector . A WaS not at this scbool. On that same date, l called the elector Q A Q Q !vho ~tô1îîiüë1nafslie believes the distance from her residence to Emily Carr Ptîbiiê~Së'h~l.Sâ&out eight l9lometers. Sbe said that if she had to vote at thal location, it would have been "too far for me". ·

261.1 know from my review of documentation maintained by the Directorate of Investigations that the Commissioner bas received 43 reports from complai.nants of inapproprlate election caUs from the Greater London area, i.e. including the EDs of London-Fanshawe, London North Centre and London West, pertaining to the 41 sl GE. Ofthose 43, 28 complained ofhaving been misdirected to anofuer polling station. Since not ail of the complainants were subscribers of Rogers, only tho se complaints which are relevant to this ITO have been included herein. I cannat say whether the transcrlbed message above is the sarne one which misdirected the ath er complainants.

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262There was aise cverlap in the complaints in that of the 43 complainants, the Commissioner received 30 complaints of nuisance or inappropriate election related telephone caUs during the election perlod.

263.The elector who received the voice message noted here is not a Rogers subscriber. This information, bowever, is an example that inappropriate calls were made during the 41st GE. Although many Rogers complainants bave provided anecdotal and often incomplete infolllllltion pertaining to inappropriate election related calls, the reliability of their recollections is supported by the similarities of the complaints of others and to the complaint that included a recording of a received call.

CONCLUSION AND REQUEST

264. The foregoing information describes my grounds for beliefthat:

a) The offences set out above bave been committed;

b) The documents or data sought will afford evidence respecting the commission ofthese offences; particularly, that they will assist in corroborating the information of the complainants and in identifYing the persan or persans who made or caused tbese calls to be made; and

c) Rogers Communications maintains the caU detail records relating to the calls received by the telephone numbers set out above and that the documents or data to be obtained are in the possession or under the control of Rogers Commwûcations.

265 .Based on the foregoing, I conclude !hat if the calls were as reported by the complainants, the c:aller or the persan or persans who causee! the caUs to be made, intended to wilfully prevent or endeavoured to prevent an elector from voting in an election, and/or intended to influence the complainants to vote or refrain from voting for a particular candidate.

266.In addition to the complaints from Rogers subscribers described above, the number of complaints received by the Commissioner emanating from the Electoral Districts errumerated above from non­ Rogers subscribers relating to false calls of changes in polling stations or to influence the vote of electors leads me to conclude that electors in addition to those Rogers subscribers who reported having received sucb caUs may also have received caUs from the telephone numbers that called the complainants herein. By identifYing the numbers which callcd the telephones of Rogers subscribers, l conclude tbat I may at a later time also be able to identifY calls made to non-Rogers subscribers.

267. I therefore request an Order requiring Rogers Commwûcations, having possession or control over the documents or data sought in relation to the telephone Dllmbers set out above, to produce certified copies of the documents or data, or documents or data prepared based on documents or data in existence, as the case might be, described. above at DOCUMENTS OR DATA TO BE PRODUCED.

268. ln arder to ensure sufficient time for Iocating and certi:fying the documents sought, I request that the time period to produce the DOCU!v):ENI'S OR DATA TO BE PRODUCED be 60 days from the date of the service of the Production Order being applied for.

269. 1 request that the documents or data be produced in electronic format using Microsoft Sxcel, a standard software readable by Elections Canada systems, to John Dickson at the Office of the Commissioner of Canada Elections, whose email address is [email protected] and whose mailing address is 257 Slater Street Ottawa, Ontario KlA OM6 by no Iater !han 60 days from the date of the service of the arder applied for.

BASIS FOR SEALING ORDER

270.1 believe the disclosure of the names and/or telephone numbers of complainants as set out within the Production Order and Infonnation to Obtain a Production Orcier would subvert the ends of

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justice. As a consequence I am requesting an arder under the authority of sub-section 487.3(1) of the Criminal Code prohibiting access to and disclosure of the names and telephone numbers as set out herein, for the following reason:

a) 1 believe that disclosing the names and/or telephone numbers of the complainants in this matter would compromise an ongoing investigation asper sub-section 487.3(2)(a)(ii). The grounds for this belief are set out in the following paragraphs.

271. The complainants in the present application for a production arder have come forward in good faith ta reportto the Commissioner what they believe ta have been improper telephone calls as indicated above, and in so doing have provided severa! items of persona! Î!Ûormanon. Tbese compliÙnants have done nothing ether !han receive one or more unsolicited telephone call(s).

272. At !east one cam plainant, whose information is included in the above grounds for a production arder, has stated that the telephone number on whlch the reported inappropriate call(s) was received is unlisted. I am aware from my review of file documentation maintained by the Directe rate oflnvestigations that at least one ether cam plainant has stated an expectntion that that persan 's personal information will be treated as confidentiel during the investigation.

273. The investiganon is heavily dependent on receiving and analyzing information from individuals relating to unsolicited telephone èa.Us received at their homes. The investigation regularly · receives national media attention. It is my belief that if the names and/or telephone numbers of the complainants identified in the present investigation are discloscd, those complainants will garner attention from the media and otherwise which could cause them to decide not to cooperate further with the investigation and could cause a chilling effect for other potential witnesses to come forward bath in this investigation and in future investigations. A non-publication order would not remedy this situation.

274. During a conversation on October 5, 2012, Mr. bonald McDonald, the Executive Director of the Liberal Party of Canada in British Columbia, told me that he is aware of a number of potenüal complainants who told hlm they did not wish to come forward because they did not wish to be involved. He said they told hlm that at !east part ofthat reticence is because they did not wish to be contacted by the media.

275. I am awarc from a conversation on October 2, 2012 with my colleague, Investigator Allan Mathews, and I believe it to be a fact, that in the separate but related investigation of alleged inappropriate telephone calls in the Electoral District (ED) of Guelph (referred to above), of approximately seven persons he wished to interview, one persan refused to cooperate because of a fear thatthe name of that persan would appcar in the media, and approximately three ether persans indicated a concem with their names appearing in or being contactee! by, the media.

276.After receiving the documents or data to be produced, Tanticipate that additional persans will be required to be interviewed. Based on the concerns expressed by sorne individual complainants, my discussion with Mr. McDonald and on the investigation in the ED of Guelph noted abovc, I anticipate that the knowledge that their names and/or telephone numbers could also be accessible by and disclosed to the public during the investigation would compromise at least sorne of those interviews.

277. I am aware of the June 9, 2005 decision of the Ontario Court ofAppeal in Ottawa Citizen Group ]ne V. Canada (Attorney General) 8• The media in that case applied for an arder granting a writ of certiorari pertaining to a decision by an inferior court to issue a sealing order and deny access ta an lTO on which search warrants were based. The Court of Appeal held that the issuing court had not adequately considered the balance betweeo "press freedom and open court.~ on the one hand and protection ofthe innocent" on the other. The Court of Appeal allowed the media access to the rra, but prolu'bited the media from publishing any information that could tend to identify the subjects of the warrants. I have applied a sitnilar balancing exercise in my request for a limited sealing order.

49 1345

32

278.As noted above, this application is brought pursuant to sub-section 487.3(2)(a)(ü) of the Code (compromise an ongoing investigation). The case cited here involved sub-section 487.3(2)(a)(iv) (prejudice the imerests of an innocent persan). I appreciate that, because I have no reason to believe that they are or may be subject to being charged with an offence from this investigation, the complainants named in this my Tnfonnation are not "innocent persans", as contemplated by the Criminal Code and relevant jurisprudence, whose reputations may be affected. They are potential witnesses, It is for this reason that this application does not rely on sub-section 487.3(2)(a)(ii).

279. That fact notwithstanding, I have applied a sinùlar balancing exercise in my request for a limited sealing arder. I believe that access to and disclosure ofthe names and telephone numbers of the complainants in this investigation will Hkely have the effect of causing sorne persans who have come forward, sorne who might otherwise come forward and sorne from whom I will be seeking cooperation in future, to re-consider their cooperation. I believe further !hat this likely negative effect on the investigation outweighs the effect on freedom ofthe press and open courts.

280. I am not requesting that my entire Information be sealed. On the contrary, it is on! y the nam es and telephone numbers ofthe complainants for which I seek an arder prohibiting access and disclosure. In this manner, the nature and extent of the complaints and the grounds for the production arder remain available to the publie and the media. The availability to the public of the names and telephone numbers of complainants would not change in any significant way the information about the nature and extent of the investigation, but would compromise further investigative steps. For tbat reason, I b~lieve that the need to protect the narnes and telephone numbers outweigbs in importance the access to this information.

281. For the reasons set out above,l believe that access to and disclosure of the nam es or telephone nurnbers of the complainants named in this my Information would have a negative effect on this investigation and potentially on future investigations. It would compromise the nature and extent of an ongoing investigation within the tenus ofsub-section 487.3(2)(a)(ii). It is my respectful view, therefore, that redacting the names and telephone numbers i11 the version of this my Information that is released to the public following the filing ofthe Report to a Justice (Form 5.2) is approprlate in this matter. I therefore request an arder to this effect.

WHEREFORE the Informant requests that a PAR CONSÉQUENT Je dénonciateur demande Production Order may be granted according to qu'une ordonnance de communications soit the tcrms herein proposed. accordée sujet aux conditions proposées ci-haut.

The lnfonnant Le dénonciateur

Swom before me this __ day ofNovember, Assermenté devant moi-même ce jour __en l'an de grâce 2011 à, 201 2 at Ottawa, Ontario.

Justice of the Peace in and for the Province of Juge de paix dans et pour la province de Ontario

50 TABE 1346

Home Newsroom News Releases News Releases and Media Advisories -- T:hiiils&hb/t, .... ~ . ·-·l'il~ltXt~irr.~;fç News Releases and Media Advisories afSdaVito! · .P~ggy~.. '!hb .. ~~Jg..,...,.. swom. belora me, ~rst' ... .&.?. .. ~ ...... dqo. , a ~r·vt·.2.(J.~ STATEMENT ~~_,_.: . /SS · ~ .... ~...... ~~· 1 ,~_,., ..,.~ii:J· -..:..._.. A~Ki'fm«1~.~vrts Chief Electoral Officer of Canada Ad dresses Allegations of Wrongdoing During the 41st General Election

OTTAWA, Thursday, March 15, 2012

Canadians are proud of their electoral system, and rightly sa. They are also vigilant about preserving its integrity. Following recent media reports of alleged fraudulent telephone ca lis and ether wrongdoing in the 41st general election of May 2, 2011, approximately 31,000 Canadians have contacted Elections Canada ta share their concerns.

A national election is a massive undertaking that involves hiring and training over 200,000 temporary· workers ta serve more than 24 million electors in seme 20,000 voting locations in every community across the country. We welcome feedback from electors, candidates, political parties and ether stakeholders, and view it as an essential ingredient in our ongoing efforts ta improve the administration of Canada's electoral system.

The Canada Elections Act strives ta achieve a delicate balance between the need for accessibility and open ness, and the necessary safeguards ta ensure the integrity and fairness of elections. The legislation provides mechanisms ta deal with allegations of irregularities or wrongdoing, including offences and penalties. When such allegations are raised, Elections Canada's responsibility is ta review th ose matters and take action ta address them. lmmediately following the 2011 general election, the Commissioner of Canada Elections deployed resources ta investigate complaints of fraudulent or improper ca lis. Since th en, over 709 Canadians from across the country have informed us of specifie circumstances where they believe similar wrongdoing took place. 1 appreciate the interest that Canadians have shawn in this matter and thank them for their continued collaboration.

The Office of the Commissioner of Canada Elections examines ali complaints concerning alleged offences under the Act and can draw on the necessary resources ta conduct a thorough investigation. The Commissioner is currently looking at a range of issues related ta the 2011 general' election.

Like ali law enforcement bodies, the Office of the Commission er generally does not disclose information on its investigative activities in arder ta protect the presumption of innocence and privacy. This also ensures that investigations are carried out effectively while meeting the high standards of due process and impartiality that are required and expected in a free and democratie society. ln this regard, 1 advise caution about drawing conclusions based on possibly inaccurate and incomplete information.

As 1 have previously indicated, 1 intend to submit a report to Parliament in due course. ln the meantime, as an agent of Parliament, 1 wou Id welcome the opportunity ta appear before the parliamentary committee responsible for electoral matters ta provide information on our administrative and 1347 investigative processes.

Elections Canada is an independent body set up by Parliament.

Information: Elections Canada Media Relations 1-877-877-9515 or at www.elections.ca TAB F 1348

HoUSE OF COMMONS CHAMBRE DES COMMUNES CANADA

Standing Committee on Procedure and Bouse Affairs

PROC • NUMBER030 • lst SESSION • 41st PARLIAMENT

J1li: ls Exht)it .. -i.._ ... _,fili1.1tid t'J ir.\}.:t; EVIDENCE I'Jiflda.V!t "'.... :e.~~.~~~ ..Ç.r..~..s...... swombefore mel this ...&:f..'lZ.t ...... ~:~:~ -...... ~~~1'.«'llf(t~~'llm Thursday, March 29, 2012

Chair

Mr. Joe Preston 1349

Library and Archives Canada Cataloguing in Publication

Elections Canada

Preventing deceptive communications with electors - Recommendations from the Chief Electoral Officer of Canada following the 41st general election [ electronic res ource]

Electronic monograph in PDF format.

Issued also in French under title: Prévenir les communications trompeuses avec les électeurs - Recommandations du directeur général des élections à la suite de la 41e élection générale.

Issued also in printed form.

ISBN 978-1-100-21939-4 Cat. No.: SE3-78/2013E-PDF

1. Canada. Parliament -Elections. 2. Elections - Canada. 3. Elections - Corrupt practices - Canada. 4. Political campaigns - Canada. 5. Canada. Parliament - Elections, 2011. 6. Election law- Canada. I. Title. IL Title: Recommendations from the Chief Electoral Officer of Canada following the 41st general election.

JL193 E43 2013 324.60971 C20 13-980031-X

© Chief Electoral Officer of Canada, 2013

AU rights reserved

For enquiries, please contact:

Public Enquiries Unit Elections Canada 257 Slater Street Ottawa, Ontario KIAOM6 Tel.: 1-800-463-6868 Fax: 1-888-524-1444 (toll-free) TTY: 1-800-361-8935 www.elections.ca 1350

The Chief Electoral Offi.cer • Le directeur général des élections

CANADA March 26, 2013

The Honourable Andrew Scheer Speaker of the House of Commons Centre Black Ho use of Co mm ons Ottawa, Ontario K1AOA6

Dear Mr. Speaker:

Please find enclosed my report Preventing Deceptive Communications with Electors- Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election.

This report is in response to incidents that occurred during the 41st general election of May 2, 2011, involving deceptive communications with electors. The report is made pursuant to section 535 of the Canada Elections Act and proposes amendments that, in my opinion, are desirable for the better administration of the Act.

Under section 536 of the Act, the Speaker shall submit this report to the House of Commons without delay.

Y ours truly,

Marc Mayrand Chief Electoral Officer

257 Slater Street/257, rue Slater, Ottawa, Canada K1A OM6 • 61.3-993-2975 Fax/Télécopieur: 613-99.3-5.380 1-800-46.3-6868 il TTY/ATS 1-800-.361-89.35 www.dections.ca 1351 1352

Table of Contents

Introduction ...... 7 1. Chronology of Events ...••...... •...... •.....•...... ••.....•.... 9 2. Legal Context ...... ••.....•.•...... •...... 15 3. Investigation Challenges ...... •.... 25 4. Recommendations ...... •...... •...•...... 29 Conclusion ...... 41 Annex ...... 43

Table of Contents 5 1353 1354

Introduction

This report is in response to incidents that occurred during the 41st general election ofMay 2, 2011, involving deceptive communications with electors. While the investigation by the Commissioner of Canada Elections remains ongoing and the full scope ofthese incidents as well as the identity ofpersons involved remain to be established, the nature of the conduct that took place is weil known. The public reaction to those incidents demonstrates the importance that Canadians attach to the integrity of their electoral process and the need to take steps to prevent a recurrence of such tactics in the future.

This report is the first oftwo thematic recommendations reports following the 41st general election. Given the importance of the matters at stake and the need to implement measures in time for the next general election, it was necessary to deal immediately with the issue of deceptive communications. A subsequent report will more broadly address the need to review and modemize the compliance and enforcement mechanisms in the Canada Elections Act with a view to making them more effective and better tailored to the regulatory nature of the regime. We plan to present this second report in the spring of2014.

As indicated to the Standing Committee on Procedure and House Affairs on March 29, 2012, the purpose of this first report is to examine preventive and enforcement measures that should be taken to deal with deceptive communications. While sorne of the measures proposed in the report are administrative, the majority require legislative changes.

The report builds on a discussion paper released in early November 2012. In preparing the report, Elections Canada consulted Canadian electors and used the discussion paper to engage political parties as weil as experts on the matters at play. The aim was to capture their concems and insights with respect to communications with electors by Elections Canada and political entities, in the context of the electoral process.

A finn was retained to conduct a telephone survey with 1,011 electors within the general population. The purpose of the survey was to evaluate the opinions and attitudes of electors on a number of questions related to communications with electors. That survey was conducted from November 21 to December 2, 2012. The full report on the survey may be found on Elections Canada's website at www.elections.ca.

As well, Elections Canada entered into a contract with the Institute for Research on Public Po licy (IRPP), a think tank based in Montréal, to convene and facilitate a day-long roundtable discussion with experts and practitioners from a range of disciplines. The purpose of this roundtable was to provide information and advice to the Chief Electoral Officer on how the Canadian electoral pro cess could be improved in the future. A link to the report of the IRPP may also be found on Elections Canada's website at www.elections.ca.

In responding to the events that took place at the last election, it is important to achieve a proper balance between competing values and interests. New technology offers tremendous opportunities for political parties and candidates to gather information, in order to target and

Introduction 7 1355

reach out to electors. More importantly, for electors, communications from and with candidates and parties are fundamental to their effective participation in the electoral process, which is the very essence of the right to vote. In both the survey of electors and the roundtable discussion, it was broadly recognized that the ability to effective! y communicate with electors is critical. At the same time, however, Canadians and experts strongly endorse the view that respect for the privacy of electors and the preservation of trust in the integrity of the electoral process are essential.

In this regard, our regime needs to be improved. While political parties and candidates must continue to be able to communicate with electors effectively, measures are required to provide basic privacy protections and help prevent deceptive communications.

As weil, the challenges experienced in investigating the deceptive caUs that were made during the 41st general election have demonstrated the need for better tools to assist the Commissioner in conducting investigations. Recommendations are made in this report for tools that are already available in the federal context for other regulatory regimes and that are available to a number of electoral management bodies in other jurisdictions.

Of course, legislative measures alone cannot prevent improper conduct from tak:ing place. Ali participants in the electoral process have a responsibility to act in a manner that respects and promotes democratie values and the rule of law.

For electors, the revelation ofvarious scandais, at both the federal and provinciallevels, involving illicit fundraising methods, abuse of spending limits and deceptive communications tactics, raises disturbing questions. The issue is not simply one of compliance with legal requirements, but also respect for values of fair play. The Iine separating conduct that is a normal part of a healthy and vigorous electoral competition from conduct that undermines the legitimacy of the election is at risk ofbecoming increasingly blurred and uncertain.

In this regard, the fact that, in the context of the survey referred to above, electors are more likely to indicate that they have not very much confidence (46%) or no confidence (10%) in federal political parties should be of concern to ali. For this reason, the report goes beyond strict concerns over legal requirements and recommends that consideration be given to the adoption of codes of conduct by political parties that would set out rules ofbehaviour for political parties and their supporters.

But codes of conduct are not enough. The electoral legislation must be sufficiently robust, not only in terms of the penalties but also of the tools available to effectively uncover acts of wrongdoing. If it is not, there is a real danger that participants will increasingly take the position that it is more advantageous to ignore the rules than to respect them, particularly if they are under the impression that their opponents are not abiding by these rules. While trust in the eleétoral process remains high (85% asper the survey of electors), it should not be taken for granted. Ultimately, what is at stake is the ability of the electoral process to play its fundamental role of legitimizing political power.

8 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 1356

1. Chronology of Events

The recommendations contained in this report aim to address various forms of deceptive communications with electors and are not restricted to the specifie acts that took place in the 41st general election. Nonetheless, it is important to provide the context that gave rise to this report and the recommendations it puts forward. This part of the report reviews what the investigation has so far pub li ely disclosed about what happened in Guelph and in other electoral districts, as weil as various actions taken in Parliament and through the courts as a result.

Initial calls and complaints (Guelph and elsewhere) In the days leading up to polling day, on polling day, May 2, 2011, and in the days that followed, Elections Canada received a number of complaints regarding automated calls, purportedly from Elections Canada, falsely informing recipients of a change in polling locations (primarily in Guelph, but complaints came in from other electoral districts as weil).

The agency also received other complaints alleging numero us, repetitive, annoying or sometimes aggressive live or automated calls, as weil as calls made late at night, on a religions holiday or from American area codes. These calls were purportedly made on behalf of candidates whose campaigns have subsequently often denied making the calls.

In one case, a professional cali centre has since acknowledged that sorne electors were given erroneous information conceming their polling location based on inaccurate or outdated data.

Investigation of the Guelph corn plaints The information that follows is already pub li ely known. 1 It is summarized here to the extent necessary to provide context for the report, and not to suggest or prejudge the result of the investigation.

Numerous complaints were received about telephone calls made to electors in the electoral district of Guelph, around 10 a.m. on May 2, 2011. The caller was described as a recorded female voice claiming to cali on behalf of Elections Canada. The message was that due to a projected increase in poli tumout, the elector's voting location had been changed to another address. There was no truth to these calls. The caller was not representing Elections Canada, and no polling locations had been moved in that district.

The calling number that appeared on the cali display of recipients' phones was the same for ali recipients. Through the investigation, it was later found out that this number was assigned to a pay-as-you-go cell phone that was activated on April30, 2011. The subscriber's name in Bell Canada's records is Pierre Poutine ofSeparatist Street in Joliette, Quebec. There is no such name or street in Joliette.

1 The following is based on information that was made publicly available through court records in the course of the Commissioner of Canada Elections' investigation. 1. Chronology of Events 9 1357

The investigation established that Pierre Poutine's phone only ever caUed two phone numbers, both of which are assigned to a voice broadcasting v endor in Edmonton that also provided services to the campaign of a candidate in Guelph.

The individual initiating the caUs was accepted by the voice broadcasting vendor as a client. Records from the vendor show that 7,676 caUs were made to Guelph telephone numbers between 10:03 and 10:15 a.m. (Eastern Daylight Saving Time) on May 2, 2011, bearing the calling number assigned to this individual. The list ofnumbers that were caUed is consistent with a list of non-supporters of a political party that could have been obtained from that party's database.

The individual used a different false name and address in his communications with the voice broadcasting v endor (Pierre Jones of 54 Lajoie Street in J aliette, Quebec). There is no such address in that city.

The individual used PayPal to pay for the services rendered by the voice broadcasting vendor and gave PayPal that same false name and address. Payments (totalling $162.1 0) were made using three separate prepaid Visa cards purchased from two different Shoppers Drug Mart stores located in Guelph. Ali were made from a computer through a proxy server using the same IP address,Z which allows the originating sender to disguise the location of the computer. The individual also used the proxy server to communicate with the voice broadcasting vendor on sorne occasions.

On other occasions, the individual communicated with the voice broadcasting vendor using an IP address associated with the campaign office of a candidate running in the electoral district of Guelph. Personnel at the campaign office used the same IP address to communicate legitimately with the voice broadcasting vendor, and also with a political party to access its database.

The caUs made to electors were transmitted from the voice broadcasting vendor using VoiP (voice over Internet Protocol) calling technology. VoiP calling is computer-generated calling over the Internet to recipients' telephones. This technology allows a voice broadcasting vendor to program into the caU process any calling number its client wishes to be displayed on a recipient's cali display. That number could have nothing to do with the actual caU made by the vendor.

Disclosure by the media in February 2012 of court documents related to the investigation Following the disclosure of the above information in articles first published in the media on February 23,2012, and on following days, more than 40,000 communications were received from electors. Most ofthese communications expressed outrage that individuals would try to weaken the electoral process by making false and misleading caUs to electors. However, a significant number of individuals from electoral districts across Canada made specifie complaints regarding improper caUs.

2 An Internet Protocol (IP) address is a numerical address assigned to each computer deviee that uses the Internet Protocol for communication on the Internet The IP address can pro vide the physical address of a computer connected to the Internet through access to records of the Internet service provider. 10 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 1358

Investigation of corn plaints received from individuals in other electoral districts Complaints with respect to inappropriate calls outside Guelph were received over a longer period oftime than was the case in Guelph. While sorne complaints were received during the 41st general election and in the months following the election, the Commissioner of Canada Elections3 received over a thousand reports from complainants outside Guelph following the February 23, 2012, story in the media.

Sorne complainants reported having received either live or recorded telephone calls on or around polling day, which many recall as claiming to be from officiais calling on behalf of Elections Canada, advising the call recipients that their polling station had been changed. In almost ali cases, the purported polling station was farther away from the elector's place of residence and less convenient for the elector to reach.

Sorne complainants also reported having received annoying calls during the weeks leading up to polling day, typically at inopportune times of day or made in a series of caUs to the same complainant, purportedly seeking support for a particular candidate or federal political party. Representatives of political parties and of candidates in who se nam es the calls were ostensibly made were subsequently contacted by Elections Canada investigators, and in most cases, the persans contacted denied making or being a party to such calls.

Appearance of the Chief Electoral Officer before the Ho use of Co mm ons Standing Committee on Procedure and House Affairs As a result of the media reports ofFebruary 2012 and of the public debate that followed, the Chief Electoral Officer asked to appear before the Standing Committee on Procedure and House Affairs to explain key aspects of Elections Canada's administrative and investigative processes. This appearance took place on March 29, 2012.

On that date, the Chief Electoral Officer reported that the number of complaints alleging specifie occurrences ofimproper or fraudulent calls was near 800.4 He also committed to submitting a report, no later than March 31, 2013, th at would examine the challenges posed by such calls and recommend improvements to the legislative framework.

Other related events On March 12, 2012, the House ofCommons unanimously passed a motion that reads as follows:

That, in the opinion of the House, the government should, within six months, table amendments to the Elections Canada Act [sic] and other legislation as required that would ensure th at: (a) Elections Canada investigation capabilities be strengthened, to include giving the Chief Electoral Officer the power to request ali necessary documents from political p~ies to ensure compliance with the Elections Act; (b) ali telecommunication companies that provide voter

3 The Commissioner of Canada Elections is a statutory officer responsible for the enforcement of the Canada Elections Act as weil as the Referendum Act. He is appointed by the Chief Electoral Officer pursuant to section 509 of the Canada Elections Act. 4 This number reflects instances of alleged improper phone calls reported by electors, as opposed to expressions of outrage or calls for action. In his appearance of May 29, 2012, before the Committee, the Chief Electoral Officer indicated that the number of complaints re garding alleged fraudulent calls th en exceeded 1,1 00. It now stands at just over 1,400. 1. Chronology of Events 11 1359

contact services during a general election must register with Elections Canada; and (c) all clients of telecommunication companies during a general election have their identity registered and verified. 5

From March to December 2012, 19 petitions were presented in the Ho use of Co mm ons regarding the events that took place in the 41st general election. Most ofthese petitions asked for a full and independent inquiry into these events while one called upon members ofParliament "to immediately enact legislation that would give Elections Canada the ability to restore public confidence in Canada's electoral process."6 The Govemment responded to these petitions by first stating its agreement with the importance ofmaintaining Canadians' confidence in the integrity of the electoral system. It indicated its intention to conduct a broad review of the Canada Elections Act, taking into account, among other things, forthcoming recommendations of the Chief Electoral Officer as well as those from the Standing Committee on Procedure and House Mfairs.

On March 23, 2012, seven individuals made distinct applications to the Federal Court to have the results of the 41st general election in each oftheir respective electoral districts declared null and void, pursuant to paragraph 524(1)(b) of the Act. The grounds of the applications were that calls were purposefully made to electors who supported the candidates of specifie parties to provide them with incorrect information about their polling site and that these were fraudulent caUs that affected the results of the elections. The electoral districts involved were Don Valley East (Ontario), Nipissing-Timiskaming (Ontario), Winnipeg South Centre (Manitoba), Elmwood­ Transcona (Manitoba), Saskatoon-Rosetown-Biggar (Saskatchewan), Vancouver Island North (British Columbia) and Yukon. The application contesting the election in Don Valley East was subsequently withdrawn. The case was heard by ajudge of the Federal Court in December 2012, but, as ofMarch 15, 2013, a decision had not yet been rendered.

Another application was filed in June 2012 by the Marijuana Party candidate in Guelph, contesting the election in that electoral district. The applicant alleges that the results of the election- that is, the number of votes cast for him- were affected by improper calls, purportedly from Elections Canada, directing voters to non-existent polling stations. The applicant is not alleging, however, that the respondent member ofParliament- whose supporters were also targeted by these calls- would not have been elected. The respondent member ofParliament filed a motion to strike the application on a number of grounds, including that the application was filed out oftime. The motion to strike was heard by ajudge ofthe Ontario Superior Court of Justice on October 29,2012. As ofMarch 15, 2013, a decision had not yet been rendered.

Finally, on October 12, 2012, Bill C-453, a private member's bill entitledAn Act to amend the Canada Elections Act (preventing and prosecutingfraudulent voice messages during election periods) was tabled and read for the first time in the Ho use of Commons. The proposed · enactment would am end the Canada Elections Act to make it an offence, during an election period, to knowingly transmit false information, to falsely represent oneself as an election officer in voice messages related to an election, orto assist such fraudulent transmissions. As well, it would require that any registered party, candidate, third party engaging in election advertising or electoral district association provide certain information related to voice messaging to the Chief

5 Canada, House ofCommons, Journals, 41stParliament, 1st session, no. 94, March 12,2012. 6 See the June 12, 2012, petition tabled by Mr. Kevin Lamoureux (Winnipeg North). 12 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 1360

Electoral Officer or the Commissioner of Canada Elections upon request. It would further require that a company or other persons contracted to transmit voice messages provide certain information to the Chief Electoral Officer. The proposed enactment also makes it an offence to contravene these provisions. The bill has not yet received second reading.

Current status The Commissioner has received complaints from more than 1,400 electors in 247 electoral districts, who report having received calls misdirecting or misinforming them with respect to their correct polling station, or calls they described as rude, harassing or annoying, received at an inopportune time of day or on multiple occasions. This includes 252 complainants from the electoral district of Guelph. The investigation is ongoing, and at the time the report went to press, no charges had been laid.

1. Chronology of Events 13 1361 1362

2. Legal Context

In arder to understand the implications of the deceptive calls made during the 41st general election and the need for legislative reform, it is necessary to provide, in summary fashion, an overview of the rules that currently apply- or do not apply, as the case may be- to such conduct. This part of the report sets out relevant parts of the Canada Elections Act, indicates that the main pieces of federal privacy legislation do not apply to political parties, and exp lains how provisions of the Telecommunications Act and a number of the Unsolicited Telecommunications Rules of the Canadian Radio-television and Telecommunications Commission (CRTC) dealing with telemarketing or automated caUs do apply to political entities. Finally, it refers to certain offences set out in the Criminal Code.

A. Canada Elections Act

Communications with electors by political entities are essential to the democratie process. For political parties and candidates, the purpose of an election campaign is to convince electors to vote and to vote for a particular candidate. This is do ne through a number of means, and for many, the direct contact between candidates or their team and the elector remains an essential component of the campaign.

To facilitate these communications, Parliament has included a number of provisions in the Act requiring the transmittal of elector information to parties, candidates or members ofParliament through lists ofelectors (sections 93, 104.1, 107, 109 and 45). These lists contain the name, addresses (mailing and ci vic) and numerical identifier of each elector. 7 They do not contain elector telephone numbers.

The Act imposes no obligations on the recipients of the lists with respect to protecting and controlling access to the persona} information they contain. Nevertheless, Elections Canada provides administrative guidelines that include best practices to protect the personal information found on the lists. However, these guidelines are not enforceable.

Elections Canada has limited information on how this and other personal information is managed by political parties. There is little public knowledge about the manner in which the information is collected, the sources of the information, whether the information is shared and with whom, the purposes for which it is used, and whether there are measures put in place by the parties to control or limit the use made of this information. The agency understands that th~re are a number of commercial software packages on the market that allow political parties to more easily merge

7 Four ofthese lists are given to candidates and parties during the election period (the preliminary lists, the updated preliminary lists, the revised lists and the officiallists). Lhe finallists, produced after the election, are given to registered parties that endorsed candidates in the electoral districts and to members ofParliament for their respective districts. Members ofParliament also receive an annual copy of the lists of electors for their respective districts, as do parties that request one, provided they endorsed a candidate in that district in the last election. 2. Legal Context 15 1363

information contained on the lists of electors with their own information on electors. These databases may contain a significant amount of additional information, including telephone number and vote preference, if known. 8 Elections Canada also understands that, in certain cases, local campaigns and the parties to which they are affiliated share the elector information in the party' s database to increase the information available to bath entities for that electoral district. The primary purpose of parties' use of these databases is to build a record of the ir supporters (and oftheir non-supporters) to facilitate communication with electors during campaigns, for example, to get the vote out. 9

The evolution of new technologies and their increased use by participants in the electoral pro cess have allowed participants to target segments of the electorate and reach out to electors more easily and more efficiently. This is done through an expanding range of mechanisms, including live or automated calls and interactive telephone town halls, all of which allow parties and candidates to pass on their message and foster participation.

The tools to do so are not expensive and are relatively easy to use. For this reason, they present significant benefits to the electoral process. However, these very qualities, combined with the capability of sorne ofthese tools to hide the true source of the communication, also make them key instruments for those who want to deceive electors.

Deceptive practices 10 involving the use of "robocalls" or websites have emerged in the United States over the last decade. For example, in 2006, in Kansas City and Virginia, electors received automated phone calls falsely informing them of changes in polling location. 11 Apart from interfering with the constitutional rights of electors, such practices potentially erode the trust of electors as well as the capacity of politi cal parties and candidates to effectively communicate with electors and stimulate voter participation.

What can and cannot be done by parties and candidates in communications with individual electors Under the Act (section 110, paragraph 111(/)), the primary constraint on the use ofpersonal information contained on the lists of electors by parties, candidates and members ofParliament is that the personal information they contain not be knowingly used for a purpose other than: (a) communicating with electors, or (b) a federal election or referendum. Under this prohibition, not

8 See Colin J. Bennett and Robin M. Bay ley, Canadian Federal Politica/ Parties and Persona/ Privacy Protection: A Comparative Analysis (Ottawa: Office of the Privacy Commissioner of Canada, 2012), pp. 16, 34ff. www.priv.gc.ca/information/pub/pp _20 1203 _ e.asp. 9 Id., p. 16. 10 The expression "deceptive practices" is used in this report rather than the (in sorne respects) narrower concept of"voter suppression" commonly found in the literature. Voter suppression is defmed in the US Department of Justice manual for the prosecution of election offences as follows: "Voter suppression schemes are designed to ensure the election of a favored candidate by blocking or impeding voters believed to oppose that candidate from getting to the polis to cast their ballots. Examples include providing false information to the public- or a particular segment of the public-regarding the qualifications to vote, the consequences ofvoting in connection with citizenship status, the dates or qualifications for absentee voting, the date of an election, the hours for voting, or the correct voting precinct. ... Currently there is no federal criminal statute that expressly prohibits this sort of voter suppression activity." See Craig C. Donsanto, Federal Prosecution ofElection Offenses, 7th ed. (Dept. ofJustice, 2007), p. 61. Elections Canada prefers the use of the term "deceptive practices", which is broader and also includes impersonation of political opponents that is not aimed at suppressing the vote but which distorts the electoral process. 11 See Common Cause, Lawyers' Committee for Civil Rights Under Law and Century Foundation, Deceptive Practices 2.0: Legal and Policy Responses (Washington: Common Cause, 2008). 16 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 1364

only must the misuse be demonstrated, but also the person's knowledge of the source of the information and its use. 12

Communications with electors may be and are clone through many means, including door-to­ door canvassing and other forms of voter contact. Election advertising - that is, the transmission to the public during an election period of an advertising message promoting or opposing a 13 candidate or party, or a position with which they are associated - is permitted, subject to the requirement that it include a mention in or on the message that its transmission was authorized by the official agent of the candidate or by the registered agent of the party. 14 Get-out-the-vote calls are also authorized communications.

However, wilfully preventing or trying to prevent an elector from voting is prohibited. 15 Similarly, inducing a persan to refrain from voting (orto vote for or against a particular candidate) by "any pretence or contrivance" is prohibited. 16 Finally, knowingly making or publishing a false statement offact in relation to the persona! character or conduct of a candidate or prospective candidate with the intention of affecting the result of the election is also prohibited. 17

These prohibitions are drafted fairly broadly. The prohibitions found in paragraphs 281(g) and 482(b) are not tied to a particular technology or means of interference. Paragraph 482(b) would capture both tricks used to deceive electors in the ir vote preference ( e.g. by falsely pretending to cali on behalf of another candidate) as well as tricks to suppress the vote (e.g. by falsely informing electors that their polling location has changed).

However, these prohibitions are backed with sanctions enforceable in the criminal courts and not administrative penalties. As a result, non-compliance can only be dealt with through investigations for which the outcome may be a penal process. As discussed further in this report, the limited tools available to obtain information translate into usually lengthy and stringent procedures. There is also a significant imbalance between these lengthy and stringent procedures and the small fines that may currently be imposed by the courts following a conviction, thus limiting the deterrent effect of such a finding.

Communications with electors regarding polling locations Each electoral district is divided into a number of geographie parcels called polling divisions, with a division comprising at least 250 electors. Generally, there is one polling station for every polling division. The basic rule is that a polling station should be located in the polling division. However, if the retuming officer considers it advisable, several polling stations may be placed together in a central polling place. In practice, most polling stations are grouped in this manner.

12 The Canada Elections Act does not address the collection or disclosure of persona! information by political entities. The need to prove that the person who used the information lmew that it came from the lists of electors (as opposed to another source) reduces the likelihood of a successful enforcement action. This may lirnit mechanisms to reinforce accountability with regard to the protection and use of the persona! information contained on the lists. 13 Canada Elections Act, s. 319. 14 Id., s. 320. 15 Id., para. 281 (g); offence at para. 491 (3)(d). 16 Id., para 482(b). 17 Id., s. 91; offence at para. 486(3)(c). 2. Legal Context 17 1365

Before each election, retuming officers are tasked with identifying polling sites in the polling divisions, or sites in which a central polling place may be established. Central polling places may group together a maximum of 15 polling stations. Where feasible, polis should be in a public building that is centrally located in proximity to the electors they serve, and that meets specifie accessibility standards both inside and outside the building. 18 While retuming officers may have preliminary discussions with landlords for the rentai of the premises, they may not enter into a lease prior to the issue of the writs unless authorized to do so by the Chief Electoral Officer, usually not before the election is imminent.

A voter information card (VIC) is sent by the retuming officer to ali registered electors in the electoral district. The VIC indicates the address of the elector's polling station as weil as voting dates, voting hours and a telephone number to cali for further information. 19 Ifit is necessary to change the location of a polling station- for example, because of the sudden unavailability of a polling site- the retuming officer prints and sends amended VICs to affected electors. If the change occurs too late in the election cal en dar to proceed in this fashion, 20 electors are informed through media broadcasts and personally by an election worker posted at the entrance of the closed or changed polling station.

Candidates are direct! y informed of the location of polling sites and of any changes to these locations because the Act authorizes them or their representatives to be present at polling stations and at the counting of the votes.21 This information is also posted on the Elections Canada website. Following the request of a party during the 41st general election, polling site information was shared with ali political parties as weil, with the specifie instruction that it not be used by parties to inform voters oftheir voting location.22 Given the static nature of the information provided to parties and the risk of confusion, in the future, Electio11s Canada will resume its practice ofproviding this information directly to candidates only, and not to political parties.

Elections Canada does not cali electors to advise them of changes in polling sites. Subject to a few exceptions, the agency does not have the telephone numbers of electors.23 Even in the few cases where electors provide their telephone number voluntarily, this persona! information is not captured in the National Register ofElectors or on the lists of electors and it is not available to retuming officers.

18 On polling day, May 2, 2011, there were 64,477 polling stations located in 15,260 polling sites. In addition, 1,669 mobile polis were set up in 4,865 establishments. 19 Canada Elections Act, s. 95. 20 Id., s. 102. The Report on the Evaluations ofthe 41st General Election ofMay 2, 2011, published by Elections Canada, indicates that in total, 326 ordinary polling stations (0.5%) and 38 advance polling stations (0.8%) were reassigned ta another site. Of the 326 ordinary polling stations reassigned to a new polling site after the VI Cs were mailed, there was enough time to mail a revised VIC to electors for 274 of them. The remaining 52 polling stations, representing approximately 19,000 electors, were reassigned less than six days before election day. This situation occurred in 26 electoral districts. 21 Canada Elections Act, ss. 135-140, 283-291. 22 In Apri12011, following a request received from a party, Elections Canada sent a dataset of ali polling sites to be used for the 41st general election to ali 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 internai purposes only; that it not be used to inform voters of the ir voting location, via mail-outs or other forrns of communications; and that it not be shared with any other organization. 23 For example, electors have the option of pro vi ding their telephone number when they apply for special ballots in arder for Elections Canada to contact them iftheir faxed documents are illegible. 18 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 1366

Other Elections Canada communications with electors during the election period While Elections Canada does not communicate with electors individually except through the VIC, it does launch an extensive multi-platform campaign to provide electors with ali the information they need on registration, the various voting options, and voter identification requirements so they can vote during an election.

The campaign includes a number of communication vehicles, such as advertisements on . television, in newspapers, on the radio, on billboards in public places and on popular social media websites. Advertising is complemented with the mailing ofVICs to ali registered electors and a reminder brochure to ali Canadian households, a comprehensive website and public enquiries services, as weil as a network of community relations officers across the country who work with specifie target groups of electors - namely, youth, Aboriginal and ethnocultural communities, homeless electors and seniors - to raise awareness about the electoral process.

Contested elections The fact that the election was contested in a number of electoral districts as a result of alleged fraudulent communications warrants a few explanations about the legislative framework for contesting elections under Part 20 of the Act. Unlike a judicial recount- which merely serves to verify that the results that were validated by the returning officer properly reflect the preferences expressed on the ballots- a contested election puts into question the validity of the election. An election may be contested on the basis that the winning candidate was not eligible to be a candidate, or that there were irregularities, fraud or corrupt or illegal practices that affected the· result of the election (section 524).

Where it has been established that the winning candidate was ineligible to be a candidate, the court hearing the application must declare the election null and void. However, where it has been established that the result of the election was affected by irregularities, fraud or corrupt or illegal practices, the court may annul the election, but is not bound to do so (section 531 ). In exercising its discretion under subsection 531 (2) to annul or not annul an election, a court must consider whether the irregularities (or fraud, or corrupt or illegal practices) raised doubts about the winner or whether the integrity of the electoral pro cess would be called into question. 24

B. Other relevant legislation

Privacy Act and Persona! Information Protection and Electronic Documents Act The Privacy Act and the Persona! Information Protection and Electronic Documents Act (PIPEDA) set out the general principles governing the collection, use, disclosure and retention of personal information. These principles reflect internationally recognized standards.25

24 Opitz v. Wrzesnewskyj, [2012] S.C.C. 55, para. 23. 25 These princip les are set out in Schedule 1 ofPIPEDA and have been reproduced in the annex to this report.

2. Legal Context 19 1367

However, neither the Privacy Act nor PIPEDA generally applies to political entities. The Privacy Act applies only to federal institutions- that is, departments and agencies of the federal govemment. With respect to PIPEDA, its scope is limited to personal information collected, used or disclosed in the course of commercial activities. 26

The absence of a legal framework goveming how personal information is managed and protected by political parties and candidates is a matter of significance, considering that the intelligence compiled and accessed by political parties on the composition of the electorate is likely a key factor in the attraction to the use of deviees such as robocalls to deceive targeted segments of the electorate.

The recent report sponsored by the Privacy Commissioner on federal political parties and the protection of personal information points out that the information collected by political parties concems many individuals, including party volunteers and employees, donors to the parties, as well as registered electors whose persona! information they receive from Elections Canada and from a variety of other sources. 27

The authors hold the view that there are privacy risks associated with these databases. Parties not only handle large amounts of personal information, but also share this information with a small army ofvolunteers and local campaign workers. As indicated in the report:

Sorne risks include personal information getting into the wrong hands or being used for unauthorized purposes. Information can also get into the wrong hands through carelessness, lack of appropriate controls, inappropriate sharing, or nefarious intent. This may result in harm to individuals in terms of identity theft, harassment or the deniai of services and rights. 28

As the authors point out, "[b]eyond the individual risks, there are also social risks as individuals lose trust in organizations when it is discovered that personal data is being used and disclosed for purposes they were not aware of, and to which they had not consented."29

The report describes various incidents occurring over the last few years that put the persona! information of certain electors at risk, including a reference to "potential vote suppression in key ridings through the practice of 'robocalling"' in the last federal election. 30

In that context, a survey of 1,011 electors conducted by Phoenix Strategie Perspectives Inc. for Elections Canada in November and December 2012 indicates that nearly two thirds (65%) of those surveyed were of the view that political parties and candidates should be regulated by privacy laws when interacting with electors during an election period. 31 Canadians are receptive to political parties and candidates contacting them during a federal election to encourage them to vote orto inform them of their policies. It is worth noting that many of them think it is

26 The Bennett and Bay ley report, rnentioned supra at footnote 8, indicates that British Colurnbia's Persona/ Information Protection Act has a broad definition of"organization" and does not lirnit its application to commercial activities. It has been held to cover British Colurnbia's political parties and may also cover the activities of federal political parties in that province. See www.priv.gc.ca/information!pub/pp_201203_ e.pdf, p. 26. 27 Id., p. 19. 28 Id., p. 22. 29 Id., p. 24. 3o Id. 31 Phoenix Strategie Perspectives, Survey ofElectors on Communications with Electors, March 2013, p. 1O. 20 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 1368

appro~riate for parties or candidates to provide them with information on where and when to vote. 3 However, the majority of electors do not be lieve that it is important for political parties to collect persona! information on electors. 33

The panel of experts consulted by Elections Canada also recognized the need for parties to be able to engage individual Canadians, and while they agreed that the use of and control over the persona! information held by political parties should be regulated, sorne suggested that the approach to doing this should not be as restrictive as that applicable to commercial activities. 34

Canadian Radio-television and Telecommunications Commission's Unsolicited Telecommunications Rules35 Section 41 of the Telecommunications Act allows the CRTC to regulate unsolicited telecommunications "to the extent that the Commission considers it necessary to prevent undue inconvenience or nuisance, giving due regard to freedom of expression."36 Relying on the authority of the Telecommunications Act, the CRTC has adopted the National Do Not Cali List (DNCL) which allows consumers to register a telephone number to avoid receiving telemarketing communications at that number.

While the National DNCL Rules do not apply to a telecommunication made by or on behalf 7 of politi cal entities governed by the Canada Elections AcP - that is, registered parties, candidates, nomination contestants, leadership contestants and electoral district associations -the Telecommunications Act requires exempted individuals and organizations, such as political parties and candidates, to maintain their own internai DNCL. 38 Political parties and candidates must ensure that no telecommunication is made on their behalfto any person who has requested to be on their internai DNCL. 39

Political entities governed by the Canada Elections Act are also bound by the CRTC's Telemarketing Rules, as weil as the Automatic Dialing-Announcing Deviee (ADAD) Rules.

Telemarketing Rules The Telemarketing Rules made pursuant to section 41 of the Telecommunications Act apply whether or not the telemarketing telecommunication is exempt from the National DNCL Rules. Therefore, the rules apply to political entities.

32 Id., p. 5. 33 Id., p. 7. 34 IRPP, Issues Arisingfrom lmproper Communications with Electors-Roundtable Report, March 2013, p. 7. 35 This section is Elections Canada's attempt to summarize the CRTC rules. The rules themselves can be foimd on the CRTC's website at http://crtc.gc.ca/eng/trules-reglest.htm. Also ofinterest is a fact sheet entitled "Key facts on the telemarketing rules for political candidates, parties and organizations," found at http://crtc.gc.ca/eng/info_sht/t104l.htm. For further information regarding the Unsolicited Telecommunications Rules, please contact the CRTC. 36 While the rules adopted by the CRTC are in many ways quite comprehensive, they do not apply to the Internet or e-mail communications. In December 2010, Parliament adopted anti-spam legislation (see S.C. 2010, c. 23). As a result, once the legislation cornes into force, the mandate of the CRTC will be expanded to include commercial electronic messages. 37 See paragraphs 41.7(1)(c) to (e) of the Telecommunications Act. 38 Id., s. 41.7(4). 39 However, one may cali a person who has asked to be put on the internai do not cali list of an organization if the telecommunication is for the sole purpose of collecting information for a survey of members of the public. 2. Legal Context 21 1369

"Telemarketing" is defined in the Rules as the use of telecommunications facilities to make unsolicited telecommunications for the purpose of soli citation; and "sclicitation" means the selling or promoting of a product or service or the soliciting of money or money' s worth. Therefore, the Telemarketing Rules apply to political entities when soliciting donations, but not when they are asking for the electors' support at the polis. Nor would the rules apply to get-out­ the-vote calls.

The Telemarketing Rules provide for: • Prier registration of a telemarketer making calls on its own behalf and of a telemarketer's client on whose behalfthe calls are made. • Maintenance of an internai DNCL by a telemarketer acting on its own behalf or by a client of a telemarketer. • Adding a consumer's name and number to the internai DNCL within 31 days of the consumer's do not cali request.40 • At the beginning of a voice telemarketing telecommunication, providing the name or fictitious name of the individual making the cali, the name of the telemarketer and the name of the client. • Upon request during a voice telemarketing telecommunication, providing a voice telecommunications number that aliows access to an employee or ether representative of the telemarketer and of the client. The name and address of an employee or ether representative must also be given upon request. • Restricting telemarketing telecommunications to certain hours of the day (9 a.m. to 9:30p.m. on weekdays and 10 a.m. to 6 p.m. on weekends). 41 • The telemarketer displaying the originating phone number or an altemate number where the telemarketer can be reached.

Automatic Dialing-Announcing Deviee Rules It is important to note that the ADAD Rules, also made pursuant to section 41 of the Telecommunications Act, apply whether or not the telemarketing telecommunication is exempt from the National DNCL Rules. Therefore, they apply to political entities.

An ADAD is defined in the Unsolicited Telecommunications Rules as "any automatic equipment incorporating the capability of storing or producing telecommunications numbers used al one or in conjunction with other equipment to convey a pre-recorded or synthesized voice message to a telecommunications number". It produces what are sometimes referred to as robocalis.

40 This issue is dealt with in the CRTC fact sheet mentioned supra at footnote 35. It indicates that "[a] constituent's request to have their name and phone number added to the internai do not cali list of a party or candidate, or those making calls on their behalf, must be honoured at the time of the cali. Caliers must update their internai do not cali list within 31 days." 41 These hours are subject to provincial legislation governing this type of activity. The Phoenix survey of electors referred to supra at footnote 31 indicates that 40% of electors prefer to be contacted between 5 p.m. and 9 p.m. (p. 3). 22 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 1370

A person using an ADAD to make unsolicited communications where there is no solicitation must nevertheless comply with a number of conditions. The most relevant conditions for the purposes of this report are the following: • There are restrictions on the hours during which such telecommunications can be made (9 a.m. to 9:30p.m. on weekdays and 10 a.m. to 6 p.m. on weekends).42 • The cali must begin with a clear message identifying the person on whose behalfthe telecommunication is made. This message must include a mailing address and a local or toll­ free telecommunications number at which a representative of that person can be reached. If the actual message relayed is longer than 60 seconds, the identification message must be repeated at the end of the telecommunication. • The telecommunication must display the originating telecommunications number or an altemate telecommunications number where the telecommunication originator can be reached.

Enforcement ofthe Unsolicited Telecommunications Provisions by the Canadian Radio-television and Telecommunications Commission The regime provides for administrative monetary penalties as the main enforcement tool (see sections 72.01 to 72.15 of the Telecommunications Act). Because such penalties are imposed directly by the CRTC and not under a criminal court process, and therefore are not accompanied by the full panoply of rights and protections granted to suspects and th ose accused of offences prosecuted in criminal court, they can be imposed with speed and efficiency by the CRTC.

The CRTC's investigative powers regarding a violation of the provisions on unsolicited telecommunications are found at sections 72.05 and 72.06 of the statute. A person designated by the Commission to issue notices of violation may enter and inspect, at any reasonable time, any place in which he or she believes on reasonable grounds there is any document or information relevant to the enforcement of the rules. That individual may also use or cause to be made use of any data processing system at that place to examine any data contained in or available to the system, and the records contained in the system may be copied or reproduced.

A person authorized to issue notices of violation may also require that anyone whom he or she believes is in possession of information necessary for the administration of the Unsolicited Telecommunications Rules submit information to him or her in the manner that he or she specifies.

It is worth no ting that in recent amendments to its Election Act, 43 the Alberta legislature has imposed its own requirements on advertisements transmitted to a telephone, whether in the form of a live cali or an automated pre-recorded cali. lt requires that the telephone nmpber of the sponsor be capable ofbeing displayed on the cali display ofpersons called; that the name of the sponsor and the sponsor' s party affiliation be stated at the beginning of the advertisement; that the advertisement state whether the sponsor has authorized the advertisement; and that the

42 These hours are subject to provincial legislation goveming this type of activity. 43 Election Accountability Amendment Act, 2012, S.A. 2012, c. 5, assented to December 10, 2012. Section 46 ofthat Act amends section 134 ofthe Alberta Election Act. 2. Legal Context 23 1371

telephone number of the sponsor or the sponsor's campaign office at which the sponsor may be contacted be stated at the end of the advertisement. As a result of other amendments to the Election Act, Alberta's ChiefElectoral Officer may impose an administrative penalty or serve a letter ofreprimand on any person that has contravened a provision of the Act, including tho se above. 44

Criminal Code restrictions on fraudulent communications Current provisions of the Criminal Code appear to be of limited assistance in dealing with deceptive communications with electors.

Harassing or misleadingphone calls (subsections 372(1), (3)) lt is an offence to convey, by telephone, information known to be false "with intent to injure or alarm any person" (subsection 372(1 )). It is unclear wh ether a court would consider that affecting an opponent's chances ofsuccess in the election (as opposed to injuringthe opponent himself or herselt) constitutes an injury under this section. lt is also an offence to "mak[e] or caus[ e] to be made repeated telephone calls" with "intent to harass" the person receiving the calls (subsection 372(3)).

Personation (section 403) It is an offence to fraudulently personate another person, living or dead, with intent to achieve any of four specified purposes, including "to cause disadvantage to ... another person". The jurisprudence confirms that the personation must be of a real person. The offence would not be applicable to a call or caller represented as "Elections Canada", nor to a fictitious character such as Pierre Poutine.

Mischief(section 430, subsection 430(1.1)) Section 430 lists activities in relation to "property" (as defined) that constitute the offence of "mischief'. Subsection 430(1.1) creates mischief offences for destroying, altering or interfering with the use of "data" as defined in section 342.1 (that is, "representations of information ... suitable for use in a computer system"). These provisions do not appear to apply to the calls perse.

44 Id., section 54 adding new section 153.1 to the AlbertaE/ectionAct. Underthis new authority, Alberta's ChiefEle~toral Officer must be of the opinion that a person has contravened a provision of the Act before serving on the persona notice of administrative penalty or a letter ofreprimand. The notice of penalty must set out, among other things, the particulars of the contravention, the amount of the penalty and the date by which it must be paid, and a statement of the right to appeal the imposition or the amount of the penalty to the Court ofQueen's Bench. The following factors must be considered by Alberta's Chief Electoral Officer in determining the amount ofthe penalty to be paid or whether to issue a letter ofreprimand: the severity of the contravention, the degree ofwilfulness or negligence, whether there are mitigating factors, whether steps have been taken to prevent reoccurrence of the contravention, whether the person has a history ofnon-compliance, whether the person reported the contravention on discovering it had occurred, and any other relevant factor. The amount of the penalty may not exceed the maximum fine that could be imposed for the corresponding offence. If the penalty is not paid within the time frame set out in the notice, Alberta's ChiefElectoral Officer may file a copy of the notice with the Court ofQueen's Bench and on being filed, the notice has the same force and effect as ajudgment ofthat court and may be enforced as ifit were ajudgment of the court. 24 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 1~72

3. Investigation Challenges

In order to understand the rationale for the recommendations made in this report, particularly those involving legislative changes, it is essential to provide an overview of sorne of the challenges faced by Elections Canada's investigators in their search for the source of the improper caUs made during the last general election. Sorne ofthese challenges are unavoidable, especially as regards the current state of the technology. Others are reported more to give an idea of the complexity of the investigation and the inherent delays in obtaining the evidence required to take enforcement measures than for the purpose of changing the regime. Still, a number of improvements to the legislative framework could be made to facilitate the investigative process.

A. Lack of contractual information on local and national campaigns

Current limits to the degree ofmandatory reporting to Elections Canada The data contained in the election expenses returns filed by political parties is currently very limited and does not include specifie information, such as contracted communications or telemarketing services, that could provide guidance to an investigation. While party retums include details on the contributions received, parties' election expenses are grouped into broad categories, and the retum provides no or little breakdown about how these expenses were incurred. This is something Elections Canada intends to remedy before the next general election. More importantly, however, under current legislation, federal political parties are not required to submit any supporting document in relation to their expenses, nor can such documentation be requested of them. 45

By comparison, candidates' retums and accompanying documentation are more complete and may show that a telemarketing firm was retained for making caUs to electors. However, the purpose for which the firm was retained and the text of the messages communicated to electors is not available as part of the retum since the reporting of this information is not required under the Canada Elections Act.46 Moreover, as candidates' campaign retums need not be filed until four months after polling day (section 451), any information contained in the retums regarding arrangements with service providers may arrive too late to be of any significant assistance to an investigation.

45 In the 2010 recommendations report, the ChiefE!ectoral Officer recommended that he or she be able to request th at registered political parties provide any documents and infom1ation that may, in the Chief Electoral Officer's opinion, be necessary for verizying that the party and its chief agent have complied with the requirements of the Act with respect to the election expenses retum. See Responding to Changing Neecls- Recommendations ji·om the ChiefElectoral Officer ofCanada Following the 40th General Election, recommendation II.l. 46 The Act allows the Chief Electoral Officer to request additional documentation in support"ofthe expense. As a general rule, the contents of an advertisement are not relevant for that purpose. 3. Investigation Challenges 25 1373

The cases Elections Canada has investigated seem to indicate that major parties deal with their own stable of telemarketing firms. Candidates' campaigns gain access to these firms through referrals by the party. However, while invoices from the party may be submitted with the candidates' campaign retums, the Act does not require that these retums also include the original contracts entered into with telemarketing firms regarding the services to be provided by the firms, wh en and at what cast. As such, little if anything is known from the retums about the specifie services rendered by telemarketing firms, to either political parties or candidates.

B. Technological means to prevent traceability or identification

Current technology offers severa! ways by which persans who do not want to comply with the rules can escape detection. This means that, even where there are applicable legislative or regulatory requirements such as the CRTC's Unsolicited Telecommunications Rules, these requirements can in practice be evaded using various technological means of anonymity. The solution to these problems may be more in the advancement oftechnology than in the introduction of new rules.

Voice over Internet Protocol technology The current state of the technology allows caliers to hide the origin of a cali by causing a fake number to appear on the recipient's cali display ("spoofing"). This limits the ability for VoiP caUs to be traced back to the caller. The technology has so evolved that it is possible to set up a VoiP cali centre from almost anywhere, including a home, with a newer computer, sorne servers and access to calllists. 47

Proxy servers Anonymity can also be facilitated through the use of proxy servers that function as an intermediary between the originator of a message and its intended destination when communicating over the Internet. Proxy servers are websites that provide anonymity by appearing as the originating communicator when communicating with the intended destination. In the investigation of the Guelph matter, court documents filed by the Commissioner of Canada Elections indicate that the information regarding the true originator was kept by the proxy server for only a short period of time, thus allowing the originator to communicate anonymously with the voice broadcasting vendor.

Disposable cell phones Disposable cell phones can be used to prevent the identification of a caller. There are also applications that allow cell phone users to create temporary telephone numbers that can be used, bath for caUs and text messaging, without leaving a trace. In the Guelph investigation, court documents filed by the Commissioner indicate that a disposable cell phone was used to · communicate with a voice broadcasting vendor under a false identity.

47 However, it should be noted th at the system used in the case of Guelph was that of an existing, known voice broadcasting vendor that kept its own records of calls made and has co-operated with investigators. 26 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 1374

C. Limitations with Criminal Code means of obtaining information

Threshold to be met to obtain a production order The Criminal Code allows investigators to obtain a search warrant or a production order from a judge to corn pel individuals or entities to provide or produce certain documents or data in their possession to the investigator. Production orders are used as a less intrusive alternative to search warrants, under appropriate circumstances. Under subsection 487.012(3), the order will not be granted unless the informant (in Elections Canada's case, the investigator) can show that he or she has reasonable grounds to believe that an offence has been committed. The informant must also have reasonable grounds to believe that the documents or data sought will provide evidence respecting the commission of the offence, and that the person who is the subject of the order has possession or control of the documents or data. Thus, an investigation must have made significant progress and solid evidence must exist before a production order can be sought from the courts.

Lack ofindustry standards in the data retention policies oftelecommunications companies There are no industry standards on the type of telecommunications records to be kept, nor on their retention time. Sorne companies keep no records on telecommunications unless billing is required. Others keep records on ali telecommunications made by users ( e.g. date the call was made, duration, recipient's telephone number). Sorne keep this information for only a few days, ethers for three months or longer. The length oftime for which datais retained directly impacts the ability to obtain information during the investigation.

The drafting of the supporting information (called an Information to Obtain, or "ITO") required to convince ajudge to issue a production order, the issuance of the requested order by the judge and the waiting for the actual production of the documents by their helder may take weeks or months, depending on the progress of the investigation and the complexity of the matter. As well, it is often necessary to go through the process of drafting an ITO, obtaining an order and receiving documents in response a number of times to pursue a given trail. That said, the chain of events and communications leading to a robocall may be very difficult, if not impossible, to establish where a company retains telecommunications records only for a very short period.

Inability to compel testimony Individuals who are not suspected ofwrongdoing often have relevant information that could assist in determining whether the Canada Elections Act has been contravened and shed light on the circumstances of the contravention. Often, their collaboration is critical at the early stages of an investigation. However, experience demonstrates that, for a number of reasons, these individuals may refuse to collaborate with investigators, or they may only agree .to do so after considerable efforts and delays that may result in the loss of key evidence.

For example, in the case of the Guelph investigation into misleading robocalls, the publicly available court records show that at least three individuals believed to have key information refused to speak with investigators. The inability to compel testimony has been one of the most significant obstacles to effective enforcement of the Act.

3. Investigation Challenges 27 1375 1376

4. Recommendations

The following measures and recommendations are aimed at better addressing the risks posed by deceptive tactics to. Canada's electoral democracy. Sorne of the measures proposed here are administrative in nature and can be implemented by Elections Canada. Most recommendations, however, require legislative changes.

Both the measures and the recommendations are based on the view that, first and foremost, the focus must be on preventing this kind of conduct from occurring. In making the recommendations, Elections Canada is also mindful ofthe importance oflimiting, to the extent possible, the regulatory burden imposed on political entities. At the same time, however, Canadians, political parties and candidates expect Elections Canada to be able to intervene promptly and effectively in investigating potential abuses of the electoral process. The ability to do so is essential to preserving confidence in electoral democracy and can only be achieved with the appropriate legislative tools.

A. Prevention measures and recommendations

Public information on the electoral process

In order to better inform the public, Elections Canada will ensure that advertising campaigns in the next election include clear messaging on its procedures when polling sites are changed very late in the election period.

As indicated earlier, Elections Canada is responsible for managing polling locations and ensuring that changes are communicated to electors. This communication is done through the mailing of new voter information cards or, if it is too late for such a mailing, through public announcements in the media and the posting of an election worker at the do or of the old polling site.

Evidence suggests that Canadians do not understand the respective roles of Elections Canada and poliiical parties in providing information about where and how they can vote. Indeed, 64% of electors thought it appropriate for political parties and candidates to provide them with this information.48 The responsibility ofElections Canada as regards the voting process needs to be clarified. Means must also be taken to reduce the risk of electors being given inaccurate information by candidates or parties, or worse, being deceived by caliers impersonating Elections Canada officiais. In preparing for the next election, the agency will therefore fos~er greater public awareness of its procedures (in particular, the fact that the agency do es not communicate with electors by telephone), as weil as develop means to warn electors about misleading calls and inform them of available remedies, including how to file a complaint with Elections Canada or with the CRTC, depending on the nature of the cali.

48 Phoenix, Survey ofE!ectors, p. 5. 4. Recommendations 29 1377

In order to better inform political entities, Elections Canada will collaborate with other government agencies, such as the Canadian Radio-television and Telecommunications Commission, to draw attention to certain rules applicable during election campaigns.

In discussions with members of the Advisory Committee ofPolitical Parties, many have told Elections Canada that they were not sufficiently informed of or did not full y understand the CRTC rules goveming unsolicited telecommunications. Officiais within the CRTC have already informally indicated a willingness to better communicate and explain these rules to political entities. Elections Canada will work with the CRTC in this endeavour.

A code ofconduct for political entities

In order to increase electors' confidence in the electoral process and in political parties, consideration should be given to the development of codes of conduct applicable to political parties, their officiais, candidates, other affiliated entities such as electoral district associations, and active supporters. These codes would be developed by the parties, with Elections Canada's assistance if required.

Another means ofincreasing Canadian electors' confidence in the political process and political parties (particularly as regards political entities' use oftheir persona! information), which gamered a broad consensus from the panel of experts consulted by Elections Canada, is the development of a code of ethics or code of conduct49 for political parties - one to which they would either voluntarily adhere or that could be mandated through legislation.

In its 1991 report, the Royal Commission on Electoral Reform and Party Financing ("the Lortie Commission") strongly recommended that parties adopt codes of ethics as a remedy to the concern that "where incidents or allegations of misbehaviour arise, parties have been reluctant to assume responsibility for reviewing and revising the practices that gave rise to the allegations."50 As stated by the Lortie Commission, "[a] code of ethics would establish an important organizational instrument of party go v emance, giving party executives and leadership a tool to manage and give coherence to the behaviour, practices and standards of the party."51 It also expressed the view that

[c ]rystallizing the party' s basic values and princip les in a code of ethics would be particularly valuable to party members who make difficult decisions in the competitive environment of electoral campaigns. It would enhance the incentive and inclination of party members to put the party's long-term interest in protecting its integrity and public respect ahead ofpotential and illusive short-term gains. 52

49 While in certain fields distinctions are made between a code of ethics and a code of conduct, for the purpose of this report, the two terms are used interchangeably unless referring to specifie codes. 5°Canada, Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy, vol. 1 (Ottawa: Communication Group, 1991) (Chair: Pierre Lortie), p. 285. 51 Id., p. 286. 52 Id., p. 287. 30 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 1378

For the Commission, "[a] code of ethics would help reconcile public demands for greater regulation with the legitimate desire of parties to manage the ir internai affairs."53 It also insisted on the need for parties to enforce their own codes and suggested the setting up of an ethics committee to ensure compliance. 54

While the Lortie Commission suggested that each party have and administer its own code of ethics, Elections Canada's research also provided examples of codes of ethics or conduct to which ali parties within a particular jurisdiction adhere (or by which they are bound).

The organization International IDEA, the International Institute for Democracy and Electoral Assistance, 55 proposes a model voluntary code of conduct setting out "rules ofbehaviour for poli ti cal parties and the ir supporters relating to their participation in an election pro cess". 56

Even though authors generally see voluntary codes as the best solution, 57 codes of conduct may be developed in a number of ways and may be quite different in nature. They may be agreed on by the parties, or agreed on by the parties and then given legal status; they may be legislated, or they may be determined by the electoral management body pursuant to a regulatory authority. 58

It is a common view among authors and in the codes reviewed that a code should be applicable to the party itself and, through the control of each party, to its leader, officiais, candidates and members. To the extent possible, a party should be responsible for the activities of its supporters. 9 It should also be responsible for violations of the code by its supporters. 5

While codes of conduct for political parties have been adopted mainly in emerging democracies, 60 an example of such a code has existed in Manitoba for the last decade. 61

53 Id., p. 288. 54 Id., p. 289. 55 International !DEA is an intergovernmental organization. Its programs aim to provide knowledge to democracy builders, provide po licy development and analysis, and support democratie reform. 56 International !DEA, Code ofConduct for Political Parties- Campaigning in Democratie Elections, www.idea.int/publications/ coc_campaigning/loader.cfin?csmodule=security/getfile&pageid=2401, 1999, p. 7. A study prepared for the Inter-Parliamentary Union (ofwhich Canada is a member) by Guy S. Goodwin-Gill also proposes a mode! code directed at political entities. See Codes ojConductfor Elections: A Study Preparedfor the Inter-Parliamentary Union, www.ipu.org/PDF/publications/ CODES_E.pdf, 1998, at p. 59ff. 57 International !DEA, Code ofConductfor Political Parties- Campaigning in Democratie Elections, pp. 8-9. 58 Id., p. 6. 59 Id., p. 10. See also Goodwin-Gill's study at pp. 64 and 67. 60 See the launch ofGhana's Political Parties Code ofConduct for the 2012 elections, www.modernghana.com/news/366561/1/ political-parties-code-of-conduct-for-2012-launche.html; see also Zambia's code ofconduct issued and administered by the Electoral Commission, www.elections.org.zm/media/electoral_code_of_conduct_2011.pdf. Political parties in a number of countries in Africa have adopted similar codes, with the support and encouragement of the Electoral Institute for Sustainable Democracy in Africa (EISA). See www.eisa.org.za!WEP/comcode.htm. India's Election Commission has also published a mode! code of conduct for the guidance ofpolitical parties. See http://eci.nic.in/eci_main/faq/faq_mcc.pdf. 61 See Manitoba's Shared Code ojEthical Conduct at www.electionsmanitoba.ca/en/Political_Participation/ Shared_ Ethical_Code_ of_ Conduct.html. It was developed as a result of a recommendation contained in the 1999 report of a commission of inquiry that looked into allegations of offences un der the province's Elections Act and Elections Finances Act during Manitoba's 1995 general election. The code, which applies to ali political parties and candidates, provides guiding princip les and rules of conduct. Respect for the law by ali those to which the code applies is emphasized, as well as the need for political entities to uphold the integrity of the political process. The code is administered by each political party.

4. Recommendations 31 1379

In the federal sphere, this code (or codes) could be developed in collaboration with parties and, as is the case in all jurisdictions where su ch codes exist, bind not only the parties but also the ir officiais, candidates, other entities and active supporters.

B. Recommendations to improve compliance

Extension ofthe application ofprivacy protection princip/es to political parties

In order to preserve the confidence of Canadians in the political entities with whom they deal, and in order to better protect the privacy of Canadian electors dealing with political entities, it is recommended that the Canada Elections Act be amended to pro vide a mechanism by which the application of privacy protection principles goveming most Canadian institutions and organizations would be extended to political parties.

The Act should also be amended to require that political parties demonstrate due diligence when giving access to their voter databases.

The survey of electors referred to in part 2 of this report reflects the concems of the individuals canvassed with respect to the collection and use oftheir persona! information by political parties. More than 75% of the electors surveyed felt that they should have the right to "opt out" of communications from political entities. As well, 69% of electors disagreed with the view that it is important for political parties to be able to collect persona! information on electors. 62 When asked what is more important, the right of poli ti cal entities to communicate with electors or the right of electors to protect their privacy, two thirds expressed the view that preserving their privacy is of greater importance. 63

The group of experts consulted by Elections Canada through the Institute for Research on Public Policy (IRPP) were of the view that "data gathering by the parties is a good thing, as it allows them to better reach their supporter base." They also agreed that it may be time to consider extending privacy regimes to political entities. They were particularly concemed about data breaches and the lack of recourse that tho se affected by such breaches would have. 64

The Chief Electoral Officer shares these views and recommends that political entities become subject to the broadly accepted privacy principles set out in the National Standard of Canada entitled Madel Code for the Protection ofPersona! Information, CAN/CSA-Q830-96, also enumerated in Schedule 1 of the Persona! Information Protection and Electronic Documents Act (PIPEDA) and reproduced in the annex to this report. These general principles govem the collection, use, disclosure and retention of records. They include requirements for accountability mechanisms; for the consent, where appropriate, of the person whose persona! information is collected, used or disclosed; and for proper safeguards. This change would go a long way to reassuring electors asto the use oftheir persona! information by political entities and to increasing the level of trust in those entities.

62 Phoenix, Survey ofE!ectors, p. 7. 63 Id., p. 9. 64 IRPP, Roundtable Report, pp. 5-6. 32 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 1380

One way of regulating the privacy practices of parties while reducing what could be perceived as intrusion by the state in their internai affairs would be to require parties to obtain an assurance from an external management auditor, attesting that the party has systems in place to protect the persona! information of electors and that these systems respect the princip les Iisted in the annex to this report. A party would need this assurance to continue to receive Iists of electors from Elections Canada.

This assurance would also preserve the reputation of the political party and reassure electors as to the protection given to their persona! information, particularly in the wake of events that took place in the last election. However, such a regime would be impracticable for political entities who are by nature temporary: candidates, leadership contestants and nomination contestants.

In order to mitigate the risk of voter information being misused by candidates or persons involved in candidates' campaigns, additional measures are required. It is recommended that the Act be amended so that parties that provide voter information to candidates are required to (a) take ali reasonable means to restrict access to data, (b) inform the pers ons to who rn the data is made accessible of the proper use of the data in accordance with instructions provided by the Chief Electoral Officer, and (c) demand that these persons not use or disclose the data for any other purpose, exceptas required by law. In case ofmisuse or loss by local campaigns of voter information obtained from the party, the party that provided access to the data would be Iiable unless it can show that it exercised due diligence in providing access to the voter information. This would be done by respecting the above requirements.

In the discussion paper published in November 2012, Elections Canada considered whether the Act should be amended to allow electors to opt out of receiving unsolicited caUs from political entities by indicating this preference when registering or updating their information in the National Register ofElectors.

While it is recognized that most Canadians (78%) would like to have this option,65 the panel of experts were strongly of the view that parties should continue to be allowed to contact voters. 66 It is also noted that the Telecommunications Act already provides a mechanism to deal with this issue by having one's name added to the internai do not cali list of a political entity. At this time, therefore, Elections Canada does not recommend such an amendment to the Act.

New requirements governing telecommunications with electors

As a measure to reduce the risk of telecommunication deviees being used to misinform electors orto mislead them as to the caller, it is recommended that the Canada Elections Act be amended to include certain rules regarding ali telecommunications with electors.

Both the CRTC's Telemarketing Rules and Automatic Dialing-Announcing Deviee Rules, to which this report has previously referred, already apply to political entities with respect to sorne types of calls: live and automated calls for the purpose of solicitation. However, not ali direct voter contacts are governed by the CRTC's Unsolicited Telecommunications Rules. For example, live calls that are not made for solicitation purposes are excluded. Moreover, under the

65 Phoenix, Survey ofElectors, p. 7. 66 IRPP, Roundtable Report, p. 12. 4. Recommendations 33 1381

Canada Elections Act, only those communications from political parties and candidates that constitute "advertising" require a statement re garding the authorization of the party' s registered agent or the candidate's official agent.

The Act should provide that in the case of ail messages from a political entity transmitted to a telephone, whether in the form of a live cali or an automated pre-recorded cali, the telephone number of the sponsor should be displayed on the cali display of persans called, and should not be blocked from being displayed; the name of the sponsor of the call and the sponsor's party affiliation, if any, should be stated at the beginning of the message; the message should state whether the sponsor has authorized it; and the telephone number of the sponsor or the sponsor' s campaign office at which the sponsor can be contacted should be stated at the end of the message. 67 The Act should also provide for limitations similarto those contained in the CRTC's Unsolicited Telecommunications Rules regarding the time of day during which calls may be made. These rules should apply during as weil as outside of election periods.

Increased reporting requirements The following recommendation dealing with increased reporting is made to ensure that the recommended identification requirements are met and to further prevent the recurrence of deceptive communications.

In arder to assist in ensuring compliance, it is recommended that the Canada Elections Act be amended to require that political entities provide additional information regarding telemarketing services on a timely basis.

The Act should be amended to provide for increased reporting requirements, not only for political parties but for ali entities (i.e. electoral district associations, candidates, third parties), re garding the use of telemarketing communication services. This change would assist in ensuring compliance with the previous recommendation regarding telecommunications with electors. Additional information should include the text of messages, dates on which they were communicated to electors, and, ifrequested by the Chief Electoral Officer, the telephone numbers that were contacted. A strong majority of the participants convened by the IRPP to provide their advice to Elections Canada supported increasing the disclosure requirements of political entities, "in a push for more transparency."68

Building on a recommendation contained in a motion passed unanimously by the House of Commons on March 12, 2012,69 and on a proposai contained in Bill C-453 (a private member's bill introduced in the House ofCommons on October 17, 2012), the agency recommends that parties and candidates also be required to advise the Chief Electoral Officer of the nam es and contact information of any persan or entity they retain to provide voter contact services before or during an election, as soon as a contractual arrangement has been made with an outside organization (rather than possibly severa! months after the election). Such a requirement would also facilitate a more rapid investigation of allegations of improper calls.

67 These rules now exist for advertisements in the Alberta Election Act at subsection 134(3) as amended by the Election Accountability Amendment Act, 2012. It is proposed that they apply to ali telecommunications from politi cal entiti es. 68 IRPP, Roundtable Report, p. 8. 69 Canada, House ofCommons, Journals, 41st Parliament, lst session, no. 94, March 12, 2012. 34 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 1382

Increase in the ChiefElectoral Officer's audit tools The following audit mechanism is recommended to better ensure compliance with the requirements of the Act and to ensure transparency.

In order to increase transparency, it is recommended that, upon request from the Chief Electoral Officer, political parties be required to produce ali documents necessary to ensure compliance with the Canada Elections Act.

The first element of the motion passed unanimously by the Ho use of Commons was that Elections Canada's investigation capabilities be strengthened to give the ChiefElectoral Officer the power to request ali necessary documents from political parties and thus ensure compliance with the Act. This is similar to the proposai contained in the 2010 recommendations report, whereby the Chief Electoral Officer would be authorized to request that registered parties provide any documents and information that may, in the Chief Electoral Officer's opinion, be necessary to verify that the party and its chief agent have complied with the requirements of the Act with respect to election expenses retums. This tool could be used, for example, to obtain specifie documents related to voter contacts from parties, as they are not required to submit any supporting documents with their retum. As discussed in the recommendations report, this authority already exists in ali provincial jurisdictions. 70 This power would be available to the Chief Electoral Officer for administrative purposes, not for conducting penal investigations.

C. Recommendations to improve enforcement

Prohibition against impersonating an election official

To facilitate the prosecution of individuals who deceive voters by pretending to be election officiais, it is recommended that a provision be added to the Canada Elections Act prohibiting anyone from impersonating an election officer or an employee or agent of the ChiefElectoral Officer. The prohibition could also extend to impersonating a candidate, a party, or representatives of such entities.

To indicate the seriousness of this transgression, it is recommended that a persan found guilty of the corresponding new offence, as weil as the existing offen ce under paragraph 482(b) of inducing a persan to refrain from voting, be Iiable on summary conviction to a fine of a maximum of$50,000 or imprisonment for a maximum oftwo years, or both; and on conviction on indictment, to a fine of a maximum of $250,000 or imprisonment for a maximum offive years, or both.

70 Election Act, R.S.B.C. 1996, c. 106, s. 276; Election Finances and Contributions Disclosure Act, R.S.A. 2000, c. E-2, s. 5; Election Act, 1996, S.S. 1996, c. E-6.01, s. 280; Election Financing Act, C.C.S.M., c. E27, s. 67; Election Finances Act, R.S.O. 1990, c. E.7, s. 7; Election Act, R.S.Q., c. E-3.3, s. 118; Elections Act, S.N.S. 2011, c. 5, s. 221; Political Process Financing Act, S.N.B. 1978, c. P-9.3, s. 16; Election Expenses Act, R.S.P.E.I. 1988, c. E-2.01, s. 6; Elections Act, 1991, S.N.L. 1992, c. E-3.1, s. 275.

4. Recommendations 35 1383

Legislation adopted by Ontario in 2011 71 creates a new offence for a persan who, inside or outside Ontario, falsely represents himself or herselfto be an employee or agent of the Ontario Office of the Chief Electoral Officer, a persan appointed un der the Election Act, a candidate or candidate's representative, or an authorized representative of a registered party or registered constituency association.

In the Ontario legislation, if a judge finds that the offence has been committed knowingly, the persan is guilty of a corrupt practice and is liable to a fine of a maximum of $25,000, imprisonment for a maximum oftwo years less a day, or bath.

While the offence in the Ontario statute applies to the persan making the calls, the offence set out in paragraph 482(b) of the Canada Elections Act ofinducing a persan to vote orto refrain from voting by any pretence or contrivance would also apply to the originator of the scheme (that is, the persan who directed the calls to be made).

That said, an offence similar to that of Ontario should be included in the Act not only for someone representing himself or herself as an employee or agent of Elections Canada, but also for a persan falsely representing himself or herself as a candidate or candidate's representative, or as an authorized representative of a registered party or registered electoral district association. In bath cases, proving the offence would not require evidence that the offender' s conduct was aimed at interfering with the right to vote or at inducing electors not to vote for a particular candidate. It would be sufficient to show that the persan falsely represented himself or herself. However, such an offence would need to be crafted so as to exclude bona fide political satire. This could be achieved by indicating that the false representation must be such that a persan could reasonably be confused asto the impersonator's true identity.

Such an offence should be crafted broadly enough to include deceptive practices on the Internet, such as the abuse of campaign domain names and false campaign websites.

The recommended maximum amount ofthe fine ($250,000) or ofimprisonment (five years) for bath this new offence and for that set out in paragraph 482( b) 72 is significantly higher th an for most other offences in the Act. While this could create a discrepancy, Elections Canada is of the view that many offences under the Act should provide for higher sanctions than is currently the case, in arder to have a more significant deterrent effect on offenders. Higher fines would send a message to all Canadians about the importance given by Parliament to maintaining the integrity of the electoral process. Elections Canada intends to submit a report in the spring of2014 addressing these matters and making specifie recommendations to Parliament.

Increase in the Commissioner of Canada Elections' investigation tools Elections Canada strongly believes that the Act should be amended to provide additiomil mechanisms to assist the Commissioner in the gathering of evidence wh en there are allegations of offences contrary to the Act and, more particularly, allegations of improper calls having been made to electors.

71 An Act to amend the Election Act with respect to certain electoral practices, S.O. 2011, c. 17. 72 A persan currently found guilty of the offence set out in paragraph 482(b) is Hable on summary conviction to a fine of not more than $2,000 orto imprisonrnent for a terrn of not more than one year, orto both; or, on conviction on indictrnent, to a fine of not more than $5,000 orto imprisonrnent for a terrn of not more than five years, orto both (see subsection 500(5)). 36 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 1384

In order to make the enforcement of the Canada Elections Act more effective, it is recommended that the Commissioner of Canada Elections be given the power to apply to a judge for an order to compel any person to provide information that is relevant to an investigation.

As indicated earlier in the report, the inability to compel testimony is one of the most significant obstacles to effective enforcement of the Act. The Chief Electoral Officer strongly recommends that this power be given to the Commissioner to facilitate and accelerate the mann er in which allegations are investigated.

While compliance with the Act is primarily ensured by way of offences, it is important to keep in mind that the Act is fundamentally of a regulatory nature. It sets out a number of rules, su ch as spending limits and reporting requirements, designed to establish a fair electoral process. The offences in the Act merely serve to better ensure compliance with those rules, and not to sanction conduct that is inherently reprehensible, as is the case with true criminal offences.

In other regulatory schemes, such as provincial securities legislation or the federal Competition Act, it is not uncommon for agencies responsible for ensuring compliance and conducting investigations to have the ability to require persons to provide information by way oftestimony or records. Consistent with the Canadian Charter ofRights and Freedoms, information obtained in this manner cannet be used against those who are compelled to testify. The information may nevertheless be essential in determining whether a contravention has occurred and allowing for timely and effective enforcement or corrective action.

In the electoral context, several provincial statutes grant the chief electoral officer or commissioner, as the case may be, the power to compel persons to appear before them and provide testimonial evidence or produce records. This includes New Brunswick, Nova Scotia, Quebec, Ontario, Manitoba, Alberta and Yukon. 73 Intemationally, other electoral management bodies have this power. These include the Australian Electoral Commission 74 and the Federal Election Commission ofthe United States.75

The role of the Commissioner with respect to compliance and enforcement of the Canada Elections Act is essential to ensuring a fair electoral process and preserving the democratie rights of Canadians under the Charter. Where the legitimacy of an election is questioned by allegations ofbreaches under the Act, it is in the public interest to uncover what took place in a manner that is as timely and effective as possible, in accordance with the rights ofthose that may be involved as weil as the democratie rights of Canadians.

73 Section 494 ofQuebec's Election Act, R.S.Q, c. E-3.3, vests Quebec's chief electoral officer, with respect to his or her own investigations, with the powers and immunities of a commissioner appointed under Quebec's statute respecting public inquiry commissions ( c. C-37). This includes the power described above (section 9). The same goes for the chief electoral officers of Nova Scotia (Elections Act, S.N.S. 20 Il, c. 5, s. 286; Public Jnquiries Act, R.S., c. 372, s. 5), New Brunswick (Political Pro cess Financing Act, S.N.B. 1978, c. P-9.3, s. 16), Ontario (Election Act, R.S.O. 1990, c. E.6, s. 4.0.1; Election Finances Act, R.S.O. 1990, c. E.7, s. 3; Public Inquiries Act, S.O. 2009, c. 33, Schedule 6, s. 33), Manitoba (Elections Act, C.C.S.M., c. E30, s. 186(5)), Yukon (Elections Act, R.S.Y. 2002, c. 63, s. 351; Public Jnquiries Act, R.S.Y. 2002, c. 177, ss. 4 and 5) and Alberta (Election Act, R.S.A. 2000, c. E-1, s. 4.2 and Election Finances and Contributions Disclosure Act, R.S.A. 2000, c. E-2, s. 5, both as amended by the Election Accountability Amendment Act, 201 2; Public Jnquiries Act, R.S.A. 2000, c. P-39, s. 4). 74 See Commonwealth Electoral Act 1918, s. 316. 75 These powers of the Commission are set out at sections 437d (a)(3) and (4) ofChapter 14 ofTitle 2 of the United States code. See www.fec.gov/law/feca/feca.pdf.

4. Recommendations 37 1385

In order to achieve this balance, it is recommended that the Commissioner be granted powers similar to tho se found un der section Il of the Competition Act. 76 The Commissioner would be authorized to make an ex parte application to ajudge to obtain an order providing that a person who has or is likely to have information regarding an investigation be examined under oath by the Commissioner or one of his or her representatives on any matter relevant to the investigation. The order could also require the person to produce documents. The examination would be conducted in private and any person required to be examined would have the right to be represented by counsel.

Prior to obtaining such an order, the Commissioner would have to satisfy a judge, on the basis of affidavit evidence, that an investigation is taking place and that the person to be examined has or is likely to have information that is directly relevant to the investigation. In ail cases, information so obtained could not be used in support of a prosecution against the person who was required to provide it, except where the person has intentionaily provided misleading evidence.

In this regard, to ensure that this power is effective, the Canada Elections Act should also include an offence for providing false information to the Commissioner or for obstructing an investigation. Similar offences exist in various provincial electoral statutes. 77

The Commissioner of Canada Elections strongly supports this recommendation.

To facilitate the timely investigation of improper cails, the Canada Elections Act should be amended to require companies that provide telemarketing services to keep records of ail communications made in Canada during the election (including client information, payment information, scripts, incoming and outgoing calls, as weil as phone numbers displayed). These records would be kept for a period of at least one year after the election but would be made available to the Commission er of Canada Elections only foilowing judicial authorization.

This recommendation is a variation of a provision contained in Bill C-453 for companies that provide telemarketing services to transmit documents to the Chief Electoral Officer within four months after the election. It is the agency' s view that requiring ail providers of telecommunication services to transmit this information to Elections Canada is not necessary. The purpose of this recommendation is to ensure that companies that provide telemarketing services keep records for a period long enough for the information to remain available to investigators for a reasonable period oftime (in this case, a minimum of one year).

The records to be kept co ver ail communications made in Canada, and not just tho se made for election purposes. For this reason, these records should not be forwarded to Elections Canada, but only retained by the companies. They would only be shared with the Commissioner foilowingjudicial authorization through a production order issued pursuant to the authority described in the previous recommendation (that is, if ajudge is satisfied, on the basis of affidavit evidence, that an investigation is taking place and that the person to be examined has or is likely to have information that is directly related to the investigation).

76 Competition Act, R.S.C. 1985, c. C-34. 77 Saskatchewan Election Act, 1996, S.S. 1996, c. E-6.01, s. 283; Manitoba Elections Act, C.C.S.M., c. E30, s. 183(7); Nova Scotia Elections Act, S.N.S. 2011, c. 5, s. 334; Prince Edward Island Election Expenses Act, R.S.P .E.I. 1988, c. E-2.01, s. 28; Newfoundland and Labrador Elections Act, 1991, S.N.L. 1992, c. E-3.1, s. 323. 38 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 1386

The privacy of Canadians is only minimally affected by the production of records held by telemarketers. Indeed, in most cases, the only persona! information that would be disclosed is the fact that they received a cali from a telemarketing firm as weil as the message used by the firm.

To facilitate the enforcement of its provisions, the Canada Elections Act should authorize the Commissioner of Canada Elections to require telecommunications companies to preserve specified records pending receipt of a production order issued by a judge.

In investigations dealing with deceptive practices, the Commissioner (or individuals acting on the Commissioner' s behalf) should have the authority to require telecommunications companies to preserve specified computer records in their possession or control when such a demand is made. This would protect the information from being disposed of by the telecommunications companies as part oftheir normal business practices.

Investigators could only make such demands if the Commissioner had reasonable grounds to suspect (a) that an offence involving deceptive communications with electors was (or will be) committed un der the Act, (b) that the computer record is in the possession or un der the control of the person to which the demand is made, and ( c) that the record would assist in the investigation of the offence. A demand would not require judicial authorization but would only be valid for a Iimited duration (e.g. 90 days), until a production order has been obtained from ajudge.

However, in order for such a mechanism to be useful, the Commissioner would need to know in advance details regarding the telecommunication service providers of candidates and political parties. Currently, this information is not available with respect to parties. With respect to candidates, it only becomes known to Elections Canada once the candidates file their financial retums, which are due four months after polling day. Accordingly, as discussed above, candidates and parties should be required to report information on their telecommunication service providers (including phone and Internet account numbers) as soon as a contract is signed or an arrangement concluded, during or before the election period.

D. Suggestions that were not pursued

Before concluding, it is worth. addressing a few suggestions that were not pursued.

In the course of drafting this report, Elections Canada received a number of suggestions from parties or experts re garding means of preventing the type of situation that occurred in the 2011 general election or facilitating the detection of guilty individuals or groups. After reviewing them, sorne were set aside as out of scope, not practical, too complex to implement or simply not applicable in the context of the electoral process. In this context, two ofthese suggestions are worth mentioning.

Granting the Chief Electoral Officer the power to cancel an election or to apply to a court for it to cancel the election The Chief Electoral Officer is tasked with administering the electoral process. His or her role is and must remain that of a neutra! and impartial arbitrator. The suggestion that the Chief Electoral Officer should be authorized to apply to a court to have an election cancelled- or worse, have the power to cancel the election- would irremediably damage this arbitrator role. This is because

4. Recommendations 39 1387

the exercise of such a power would require that the Chief Electoral Officer take sides by being for or against one of the participants in the election contest. Applying to a court to seek the cancellation of an election is the responsibility ofthose who fought in that election or who, as electors, had a stake in the election. This should remain the case.

Providing for the possibility of rewarding whistleblowers It is already possible for anyone who believes that an offence has been committed under the Canada Elections Act to report the matter to the Commissioner of Canada Elections, for him or her to investigate the matter as he or she deems necessary in the circumstances and to take the measures he or she considers appropriate for dealing with the offence if one was committed.

It has been suggested, however, that the probability of someone providing information on an ùffender is much greater ifthere is a financial incentive for the informer to denounce the alleged illegal act. For that reason, a whistleblower regime that provides a financial reward to the person who provides information on an illegal act is seen as a more effective deterrence measure than relying strictly on informers who denounce illegal acts for pm-poses other than money. The agency was referred to the whistleblower pro gram available under the United States Securities Exchange Act of 1934.78 Under that program, the Securities and Exchange Commission is authorized to reward the assistance and information provided from a whistleblower who knows of possible securities law violations. The legislation underpinning the pro gram pro vides that the rewards are paid from a fund in which are deposited the fines imposed on offenders.

The website of the best-known Canadian whistleblower program that provides for such payments, Crime Stoppers, indicates that rewards for information that helps the police solve crimes are funded exclusively by donations from private citizens and local businesses. 79 A source offunds over which the Chief Electoral Officer would have sorne control would have to be generated for the payment of rewards un der the Canada Elections Act. Furthermore, there is no whistleblower regime in Canadian federal legislation that provides for the payment of a reward to the whistleblower. 80 The electoral process does not appear to be the best context for such a regime, as nothing indicates a lack of denunciations by participants in the electoral process or by Canadians in general.

78 See "Securities Whistleblower Incentives and Protection" inSecurities Exchange Act of 1934, 15 U.S.C. 78a et seq., sec. 21F. 79 http://crimestoppers.ca/donate/. 80 See section 66.1 of the Competition Act and section 27 ofPIPEDA for examples ofwhistleblower provisions in federal law. As weil, see the Public Servants Disclosure Protection Act, S.C. 2005, c. 46. 40 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 1388

Conclusion

The recommendations made in this report are aimed at better addressing the risks posed by deceptive tactics to Canada' s electoral democracy. While Elections Canada can take sorne administrative measures to prevent the kind of conduct discussed in the report from occurring again, Parliament's intervention is required to make legislative changes that will allow the agency to promptly and effectively investigate potential abuses of the electoral process.

While 80% of Canadians who gave the ir opinion in the Phoenix survey said they had quite a lot (48%) or a great deal (32%) of confidence in Elections Canada, 81 it can be expected that this level of confidence will decrease if significant delays in investigations (let alone a lack of results) occur following repeated perceived egregious violations of the Canada Elections Act. Similarly, actions must be taken to increase Canadians' level of confidence regarding the vital role played by political parties in our electoral democracy. The recommendations contained in this report aim to address these two issues.

In our view, sorne of these recommendations are of particular importance in this context.

The authority of the Commissioner of Canada Elections to compel witnesses to testify orto produce documents with prior judicial authorization would go a long way in accelerating the investigation process, particularly at the start, when facts need to be clarified. This is a vital tool in the application of regulatory provisions, and one that already exists in federal legislation. The Commissioner strongly supports this recommendation.

As weil, we share the view of Canadians and of the experts we consulted in the preparation of this report that political parties should be required to pay greater attention to the protection of electors' persona! information. There do not appear to be any public policy reasons for excluding political parties from the application of the privacy protection principles goveming most Canadian institutions and organizations. These principles should be extended to political parties. This could be accomplished through an assurance provided by an extemal management auditor. However, regardless of the means chosen, the application ofthese principles should be a pre­ condition to the party continuing to receive Iists of electors from Elections Canada.

Other recommendations have also been made to deal with the particular issue of communications with electors. They include the addition of a new offence prohibiting anyone from impersonating an election official. As weil, the Commissioner should have the authority to require telecommunications companies to preserve specified records pending receipt of a production order. Political entities should also be required to provide timely information regarding their contractual arrangements with telecommunications, Internet service and telemarketing service providers, to the extent that these arrangements are to be in effect during election periods. Finally, in Iine with the motion adopted by the Bouse ofCommons in March of2012, we reiterate the recommendation made in our previous recommendations report that, upon request from the Chief Electoral Officer, political parties be required to produce ail documents necessary to ensure compliance with the Act.

81 Phoenix, Survey ofE!ectors, p. 26.

Conclusion 41 1389

Means must be given to Elections Canada to address deceptive practices such as those that occurred during the 41st general election. These practices undermine the electoral pro cess, to the detriment of ali participants. In this context, however, it is important to keep in mind that legislative measures alone cannot prevent improper conduct from taking place. Ali participants in the electoral process have a responsibility to act in a manner that respects and promotes democratie values and the rule of law.

42 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 1390

Annex

The princip les that follow are set out and further discussed in Schedule 1 to the Persona! Information Protection and Electronic Documents Act.

Princip le 1 - Accountability An organization is responsible for persona! information under its control and shall designate an individual or individuals who are accountable for the organization's compliance with the following principles.

Principle 2- ldentifying Purposes The purposes for which persona! information is collected shall be identified by the organization at or before the time the information is collected.

Principle 3- Consent The knowledge and consent of the individual are required for the collection, use, or disclosure of persona! information, except where inappropriate.

Princip le 4- Limiting Collection The collection ofpersonal information shall be limited to that which is necessary for the purposes identified by the organization. Information shall be collected by fair and lawful means.

Principle 5-Limiting Use, Disclosure, and Retention Persona! information shall not be used or disclosed for purposes other than those for which it was collected, except with the consent of the individual or as required by law. Persona! information shall be retained only as long as necessary for the fulfilment ofthose purposes.

Princip le 6 - Accuracy

Persona! information shall be as accurate, complete, and up-to-date as is necessary for the purposes for which it is to be used.

Principle 7 - Safeguards Persona! information shall be protected by security safeguards appropriate to the sensitivity of the information.

Principle 8 - Openness An organization shall make readily available to individuals specifie information about its policies and practices relating to the management of persona! information.

Anne x 43 1391

Principle 9- Individual Access Upon request, an individual shall be informed of the existence, use, and disclosure of his or her persona! information and shall be given access to that information. An individual shall be able to challenge the accuracy and completeness of the information and have it amended as appropriate.

Principle 10- Challenging Compliance An individual shall be able to address a challenge concerning compliance with the above principles to the designated individual or individuals accountable for the organization's compliance.

44 Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election TABG 1392

Preventing Deceptive Communications with Electors

Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election 1393

Standing Committee on Procedure and House Affairs

Thursday, March 29, 2012

• (1100) Before I do so, however, I want to address more specifically the [English] issue that has been referred to as "robocalls". The Chair (Mr. Joe Preston (Elgin-Middlesex-London, [English] CPC)): I cali our meeting to order. This is meeting number 30 of the Standing Committee on Procedure and House Affairs. The label "robocall" has been used in the media to refer to various types of alleged irnproper conduct involving telephone contact with We have a guest today, Monsieur Mayrand, from Elections electors during the 41st election. This includes cornplaints of bath Canada. It's great to have you here today. We have a reduced meeting automated and live calls. In many cases, the cornplaints allege today, so I would certainly like to get right to it. rnisrepresentation as to the source of the cali: either calls clairning to be from Elections Canada or falsely appearing be on behalf of a I understand that you have an opening statement. Would you also to particular party or candidate. during your opening statement introduce the guest with you today? Then we'll go to rounds of questions from the members. In sorne cases, the cornplaints refer to electors being falsely Monsieur Mayrand. informed of a last-rninute change of polling place, whereas in other cases the cornplaints relate to harassing caUs, either because of the [Translation] time or recurrence of the cali or because of their tone. Mr. Marc Mayrand (Chief Electoral Officer, Elections Canada): Good morning, Mr. Chair, and thank you for inviting I will corne back later to the issue of change of voting location and me today. how we inform electors of such a change. Suffice it to say that automated calls informing electors of a change in their polling Let me introduce my colleagues. Joining me is Mr. Stéphane location during the 41st general election did not come from Elections Perrault, responsible for legal services, and Mr. Rennie Molnar, Canada. Any action taken to deliberately rnisdirect electors and [English] interfere with their right to vote under the constitution and the Elections Act is a serious offence. It not only denies the fundarnental who is the deputy chief electoral officer responsible for electoral rights of affected electors but also dirninishes our democratie events. institutions and the rights of ali Canadians. [Translation] During or immediately after the election, we received approxi­ As you are aware, there have been a significant number of media rnately 70 complaints alleging various forms of irnproper telephone reports and rnuch debate in recent weeks concerning various communications, including messages irnpersonating Elections Ca­ allegations of wrongdoing during the 41st general election. Most nada employees and sending electors to the wrong poli location. of these relate to complaints made by electors regarding different These cornplaints were treated seriously and diligently by the forms of irnproper or fraudulent telephone caUs. In that context, Commissioner of Canada Elections, who immediately undertook to concerns have also been raised regarding the administration of the investigate them. vote in certain electoral districts. This includes allegations of unusual numbers of polling day registrations, people registering irnproperly Significant details of the investigation were included in various and voting by non-citizens. These are very serious rnatters that strike court documents that were revealed by the media on February 22, at the integrity of our democratie pro cess. If they are not addressed 2012, and since that date. These show that on May 5, 2011, only a and responded to, they risk undermining an essential ingredient of a few days after the election, a senior investigator in Ottawa healthy democracy, narnely the trust that electors have in the communicated with sorne of the cornplainants and met with them electoral process. in Guelph on May 19. As Chief Electoral Officer, it is my role to ensure that every effort The recent media reports on details of the subsequent investiga­ is made to address these issues effectively, fairly and irnpartially, as tion resulted not only in sustained media coverage but also in a large weil as to preserve the trust and, indeed, the pride that Canadians number of people communicating with Elections Canada. Since have in their electoral system. This is why I fee! that it is important to then, close to 40,000 people have contacted my office to express be here today to explain key aspects of our administrative and their concern. Of these contacts, over 800 were camplaints alleging investigative processes, not on! y for the benefit of parliarnentarians specifie occurrences of irnproper or fraudulent calls across the but ali Canadians. country. 1394

2 PROC-30 March 29, 2012

We have added sufficient resources to deal with the inflow of were late changes to 61 polis in 24 ridings, affecting 19,000 electors communications and to contact electors who have specifie factual out of 24 million. allegations. As I indicated in my statement on March 15, I thank Canadians for their collaboration. We do not have the electors' telephone numbers and do not cali The office of the commission er is pursuing its investigation, and I them to notify them of late polling place changes. In those cases, we am confident in their ability to do so in a manner that meets the ensure that a poli worker is present at the closed poli to redirect highest standards. Until the investigation is completed and the facts voters to the new polling place. The responsibility of communicating are established, I reiterate the importance of not drawing any with electors with respect to their polling place is exclusively that of premature conclusions. Elections Canada. We have the most authoritative and up-to-date information on the electors and their voting locations, and we are I intend to submit a report to Parliament within a year about accountable for it. This is why we specifically ask political parties administrative as well as legislative issues around privacy and and candidates not to communicate with electors in this regard, but communications with electors in the context of evolving technolo­ refer them to Elections Canada in order to a void errors and confusion gies. The report will examine not only issues around telephone among electors. communications but also, for example, the increasing use of social media and the new challenges they pose. [English] In the meantime, I believe it is important that I share with parliamentarians, as well as with Canadians, certain information The third key component of the electoral process for which regarding our administrative and investigative processes. This will Elections Canada is responsible is the administration of the vote. In help clarify the role and responsibility of my office, as well as those this regard, recent media reports have suggested possible irregula­ of ali participants, in maintaining trust in our electoral process . rities in certain electoral districts. • (ll05) [Translation] The administration of the vote involves the application of the voter identification rules, the handling of the ballots, and the The administration of an electoral event is a massive and complex counting of the votes. While Elections Canada is responsible for undertaking. For the purposes of this appearance, it can be simply conducting the vote, candidates also play an important role. Among broken down into three key activities for which my office is other things, they may appoint representatives-scrutineers-at each exclusively responsible and accountable. poli to observe the vote, challenge the qualification of electors where appropriate, and report any irregularities. The frrst activity is identifying and locating electors. At the last general election, we counted almost 24 million electors. As in the case with poli locations, it is important that each Second, we are responsible for setting up polis. Once again, at the participant understand his or her own role. Scrutineers who have last election, we counted over 70,000 voting stations at over reasonable doubts regarding the citizenship of a person may ask that 23,000 pol! locations. the person take the prescribed oath. They cannot, however, otherwise attempt to prevent electors from voting or interfere with the The third activity is administering the vote. The identification of application of the voter identification rules. electors is done by maintaining the National Register ofElectors and updating it through revisions during the election. It includes ensuring, to the extent possible, that electors are correctly listed at It should be noted that ifthere is information supporting a concem their place of residence. that persons who voted were not qualified electors, the information must be provided to my office or to the Commissioner of Canada The second aspect of the process is setting up the polis and Elections. This must be done in a timely fashion and with specifie informing electors of their polling place. This is done locally by factual elements. returning officers and their staff during the election, in accordance with guidelines provided by my office. Poli locations are confirmed I find it troubling to hear sometimes sweeping and vague early in the election calendar, so that electors can be informed of allegations of irregularities being made public many months after the where to vote on the voter information card that is mailed to each election and not supported by specifie facts. In sorne cases, the registered elector 24 days before polling day. complaints are made to the media without any information being forwarded to Elections Canada. Such allegations cannot be verified, Subsequent changes in poli locations are relatively rare but and merely undermine the trust of Canadians. inevitably do occur for a variety of reasons. In the last general election, a total of 473 polis, which is Jess than 1%, were moved, affecting sorne 300,000 electors. This number also represents only For example, there's been recent media coverage on allegations of 1.3%. This can be in response to feedback from electors or a large number of unqualified electors voting in Scarborough­ candidates, or because of an unforeseen event, such as a flood or Rouge River and improper voter registrations in Eglinton­ power outage, resulting in the Joss of a polling place. If a change of Lawrence during the May 2011 election. No specifie actionable voting location occurs in the last week of the campaign, it is too late information has been provided to us, making any kind of review to issue a revised voter information card. In the last election, there challenging, to say the !east. 1395

March 29, 2012 PROC-30 3

Regardless, in Eglinton-Lawrence we were able to detennine • {1115) that the fonns shown in the media were in fact copies of applications to register and vote by local special ballot, and not polling day [Englis'h] registration fonns. To be diligent, we examined ali 1,275 of these I should point out that the enforcement mechanisms in the Canada fonns, and, with the exception of three voters who were listed at a Elections Act can and should be improved. The act relies almost commercial address, could not find any evidence of irregularities as exclusively on offences and fines and jail tenns that are not tailored claimed. The three cases thal we identified are being looked into as to regulatory issues. On the one hand, regulatory matters that could we speak. be addressed more effectively with administrative measures and penalties are subject to the delays and costs associated with criminal I will move now to the process for conducting investigations. The investigations and prosecutions. On the other hand, serious offences Commissioner of Canada Elections has the responsibility under the carry disproportionately light penalties, including maximum fines Canada Elections Act for the investigation and enforcement of thal are very low, usually $2,000 or $5,000. election offences. He is appointed by me and is accountable to me, but has independent authority under the law. It is therefore my intention to carry out an overall review of the compliance and enforcement mechanisrns in the act, and to submit a The commissioner is supported by a core team of nine report to Parliament before the next general election. This will be in investigators, and is assisted by lawyers and ethers within Elections addition to my report on the more specifie issue of robocalls. Canada. Under the act, ali of the expenses required to pursue his investigations and carry out his duties may be drawn on the In conclusion, Mr. Chainnan, I think we can say that Canadians consolidated revenue fund. This can include contracting for are proud of their electoral system, and they should be. However, additional resources, as required. recent events and media reports have shaken their confidence. As I indicated at the outset, the trust of electors in the integrity of the electoral process is an essential aspect of a healthy democracy. The commissioner's office receives complaints from the public as weil as internai referrals from Elections Canada. The commissioner's Elections Canada perfonns a key function in this regard. When office carefully and impartially reviews ali complaints it receives irregularities or improper conduct are brought to our attention, we conceming an offence under the act. This review considers whether have a responsibility to take action. We must look into them the complaint or referral tirs! falls within the commissioner's diligently, and we do. If the regime is inadequate and needs to be jurisdiction, whether the infonnation provided is sufficient, and improved, it is my role to make those changes or to recommend whether there is a basis for an investigation. If the complaint is legislative amendments. anonymous, or if the allegations are too vague, there may be no basis to pursue an investigation. If a file is closed, the complainant is We ali have a role in preserving trust in our electoral process. This notified of the reasons in writing. includes not only Elections Canada but also the electors themselves, the candidates, the parties, and also the media. The quality of our • (1110) democracy depends on the vigilance and conduct of ali players involved. [Translation] Thank you, Mr. Chair. I would be happy to take questions. Like ali law enforcement bodies, the Office of the Commissioner treats complaints and referrals in the strictes! confidence. It discloses The Chair: Thank you, Monsieur Mayrand. neither the sources of the infonnation nor the infonnation collected, We'll start with a seven-minute round. except as necessary for enforcement purposes, for example, as part of court documents. Preserving the confidentiality of the investiga­ Mr. Lukiwski, are you first? tions is critical to effectiveness, as weil as to faimess. It serves to protee! the privacy ofindividuals and the presumption of innocence. Mr. Tom Lukiwski (Regina-Lumsden-Lake Centre, CPC): In so doing, it also prevents incomplete or inaccurate infonnation Yes, I am. from serving partisan purposes and undennining confidence in the faimess of the electoral process. The Chair: Ali right.

Mr. Tom Lukiwski: Thank you, Chair. Following an investigation, the commissioner may refer a matter for prosecution to the director of public prosecutions, who decides Thank you, Monsieur Mayrand, for appearing here today. whether charges should be laid. The commissioner may, altema­ tively, enter into a compliance agreement in which the ~erson Let me just try to confrrrn something right off the top. I take it recognizes having contravened the act. It may be accompamed by from your statement thal you are confident thal both your office and conditions that the commissioner considers necessary to ensure the Office of the Commissioner of Elections have sufficient compliance with the act. These agreements are published in the resources to deal with the complaints that come forward on this Canada Gazette and on our website. Where the public interest does whole issue of voter suppression. Is that correct? not warrant fonnal enforcement, the commissioner may also issue a caution letter. Mr. Marc Mayrand: Yes. 1396

4 PROC-30 March 29, 2012

Mr. Tom Lukiwski: Let me then also try to clarify this. You Mr. Tom Lukiwski: And that would mean roughly, on average, mentioned in your report that during and irnrnediately after the about 10,000 incorrect addresses per riding. election, there were about 70 complaints about misleading phone Mr. Marc Mayrand: I guess so. caUs, that type of thing, but subsequent to ali of the media attention, there were about 800 complainants about actual phone caUs or Mr. Tom Lukiwski: Okay, again, that's rough math. representations that might have been misleading- I guess the point l'rn making is that al! political parties and ali Mr. Marc Mayrand: Specifie allegations regarding phone caUs. candidates use the voters list for voter contact, to try to contact Mr. Tom Lukiwski: The 40,000 were mainly generated by voters, to persuade them to vote for their candidate or respective advocacy and activist groups, and they were just contacts, not party. So if they are getting incorrect information from Elections complaints. So 800 is the number we're dealing with, roughly? Canada, then it stands to reas on that sorne of the information they're providing back to those voters may also be incorrect. Mr. Marc Mayrand: Eight hundred is the nurnber of specifie complaints-complaints with specifie allegations-and 40,000 or so So I guess my question would be what plans do you have to try to is the nurnber of contacts of Canadians expressing concems about increase the accuracy of the voters list itselfbefore the next election? the matter. Mr. Marc Mayrand: In fact, if the information is incorrect, the Mr. Tom Lukiwski: Okay. Thank you. party would not be able to reach those electors, based on that I think there's been sorne misinterpretation, either deliberately or incorrect information. by honest confusion, as to how many complaints there actually were. In terms of irnproving the register, I should point out that the I just wanted to verify that 800 is the nurnber we're dealing with quality measures for the register compare favourably with those for here. other jurisdictions where registration is mandatory. So again, I just Let me turn now to what you mentioned in your report about the want to remind everyone that registration is not mandatory in role of Elections Canada in providing correct information to political Canada, at !east between elections, and I think the safety valve at the parties and candidates. end of the day is that electors can, on election day, attend polling stations and register to vote on that day. You mentioned, I believe in your last report, actually, that about 84% of al! addresses of eligible voters were correct. To improve the quality of the register, we're taking various initiatives on an ongoing basis to see how we can better reflect the Mr. Marc Mayrand: That's the standard quality measure that correct addresses of e!ectors. applies to the list on any given day. It's better on election day. Mr. Tom Lukiwski: Thank you for that. Mr. Tom Lukiwski: Which would mean, then, by extension, that about 16% of the electors on that list had incorrect addresses. Would I would just point out that I have to challenge you a little bit on the that be ... ? fact that you said that if they had an incorrect address a candidate Mr. Marc Mayrand: Not on election day; I just want to be c!ear wouldn't be able to contact the voter. That's not quite true. We on that. contact by phone, and we could certainly track down a voter, but the address is something that- In terms ofwhat the 84% refers to, ifyou take a picture of the list Mr. Marc Mayrand: But we don't have phone numbers, so those on any given day, it's at around 84%. During the election campaign, phone nurnbers are not coming from Elections Canada. as you al! know, we do extensive revision activities to bring that up to date, to make sure, again, that al! electors are shown against their Mr. Tom Lukiwski: I think most candidates and campaign offices residential address. are able to find those phone nurnbers on their own. • (1120) Mr. Marc Mayrand: I think it's an important aspect of it. I Mr. Tom Lukiwski: What would you- recognize that fully. I think there are always issues when you try to integrale data from different sources. Mr. Marc Mayrand: During the last election, my recollection is that over 700,000 such adjustments were made during the revision Mr. Tom Lukiwski: Thank you very rouch. period. How rouch tirne do I have, Mr. Chairman? Mr. Tom Lukiwski: Help me with the math, then, with the The Chair: You have two minutes left, sir. percentage. If it's not 16% of the voters on the voters list who had incorrect addresses .... Mr. Tom Lukiwski: Since your report is saying basically that the final investigation won't be concluded for so~e time and you won't If you adjusted the 700,000, that means, what, about 12%, 13%, be able to report on your findings for sorne time, the one thing that 14% had incorrect addresses? we do know is that a misleading cal! did happen in Guelph. The Mr. Marc Mayrand: It's about that. Liberal candidate, Mr. Valeriote, has already reported that his campaign made sorne misleading phone caUs to voters. A woman Mr. Tom Lukiwski: So that is about two and a half to three used a fake narne, Laurie McDonald, a fake address, and fake phone million incorrect addresses. Is that correct? nurnber, and she didn't identify herself as a representative of Mr. Mr. Marc Mayrand: Yes, it's roughly that. Valeriote's campaign. 1397

March 29, 2012 PROC-30 5

Now Mr. Valeriote has made public comments saying that he had My question is this. There's a little more information in the public contacted your office and that in effect you had signed off on the domain about Guelph than about any other particular location. Can phone caUs, saying that there was reaUy nothing unacceptable about you give us a sense of wh ether or not y ou see any linkages? Is this them. To me that seems very strange. Can you confmn whether or the same file to you? Are they separate files? Are the issues similar? not you had given Mr. Valeriote a sign that those phone caUs were acceptable? Because he certainly indicated publicly that he got that Can you speak to that at all, Mr. Mayrand? information from your office. Mr. Marc Mayrand: As I pointed out in my presentation, more Mr. Marc Mayrand: We don't-and the Elections Act does not information is available around the Guelph matter because of court -reaUy regulate the content of messages, and we certainly don't pre­ documents that are public. From the point of view of the approve messages by political parties. commissioner from Elections Canada, we're looking at all the corn plaints that are sent to us. We assess each of tho se complaints on Mr. Tom Lukiwski: l'rn not talking about pre-approval. Mr. their own merit. Valeriote apparently said he contacted your office after admitting that · they'd made these misleading phone caUs, and he asked whether or Mr. David Christopherson: Okay. I think l've just run into the not they were acceptable under elections law, and you said that they very issue l'd predicted I would run into. I accept that as a limitation were. of where we are. Mr. Marc Mayrand: l'rn not aware that there has been any ruling Let me ask you about the 800 number. How does that number on this matter. Again, as is so publicly known, there have been two compare with other elections? complaints lodged on this matter with the commissioner, and the commissioner is looking into it. Mr. Marc Mayrand: Well, that's only part of the complaints we got in relation to the 41st general election. I submitted a report to Mr. Tom Lukiwski: In your opinion, then, is it against elections Parliament earlier on, painting out the number of complaints that we law to make a phone caU of that sort without identifying that you're received in total. I don't have the exact number in mind right now, representing a particular candidate? but it's in that earlier report. • (1125) The other thing I would caution is that a single incident.... I Mr. Marc Mayrand: That's an interesting aspect. Again, the remember that in the last GE, an interview that was done with a well­ Elections Act does not cover these matters as such. The Elections known candidate on polling day generated 700 complaints by itself. Act deals with advertising, deals with expenses, and requires that We ruled that there were no irregularities there. any advertising be linked to a tag line reflecting that it has been authorized by the official agents of the candidate. Now, the question So I think we have to be careful about those numbers. that will arise is whether a phone message such as the one that you Mr. David Christopherson: Okay. describe constitutes advertising under the Elections Act, and if it does, it would necessarily mean that a tag line should be attached. Could you speak to us about the threshold you would need to pass But that's why I want to come back to the committee later on, in order to declare--or go to the courts, or recommend, whatever the because the act is far from clear on these matters. process is-a new election, a byelection ... the threshold for charges? Mr. Tom Lukiwski: So- And is there any circumstance in which a general election in total The Chair: Excuse me, Mr. Lukiwski, l'rn going to have to stop can be declared nuU and void? I mean, it's extreme, but what are the you there. circumstances? Mr. Christopherson, seven minutes, please. Are any of the issues we're dealing with anything remotely as serious as that, at this point in your investigation? Mr. David Christopherson (Hamilton Centre, NDP): Thank you very much, Mr. Chair. I appreciate that. Mr. Marc Mayrand: On the threshold for investigation, there are maybe three parts to your question, as I understand it. Thank you, Mr. Mayrand, fo_r your attendance today. In terms of investigation, I must stress that these are penal Let me say at the outset that we've had a couple of experiences investigations. They have to meet the standards of criminal law in where agents ofParliament have not lived up to the standard that we terms of faimess, due process, and the various fundamental rights had hoped. I just want to commend you for your role as an agent of that are provided by the charter. Of course there's the burden of Parliament in reaching out and asking the committee, and asking evidence, which is beyond reasonable doubt. Parliament, ifyou could come forward on an issue that was clearly in the public domain, very controversial. You offered to come here and In terms of chaUenging election results, this is a matter for the said that you needed to give an update to Parliament to let us know court. Any elector can bring a matter before the court to ask for the what was going on, to give us an opportunity to ask you any annulment or contest the result of an election -as long as it is within questions. I just want to compliment you on your public duty in 30 days ofwhen the elector became aware of the facts or reasons for doing that. Tome, that is the kind of performance we like to see from disputing the election. The elector has to determine or show that the our agents of Parliament. Thank you for that. results were affected by the circumstances being brought before the court. I know you're very limited as to what you can say, which limits what we can ask, ifyou will, but l'll ask anyway and accept the fact • (1130) that you're going to say me, "! can only tell you what time it is." Mr. David Christopherson: Okay. Thank you. 1398

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Can you give us an indication of whether or not there are other Good moming, Mr. Mayrand, and thank you for your participa­ ridings, besides Guelph specifically, you're looking at that you can tion. I would also like to thank Mr. Perrault and Mr. Molnar. mention today? You said that there were about 800 complaints among. the Mr. Marc Mayrand: I can tell you that the 800 or so complaints 40,000 people who contacted you. You said those complaints came eut across pretty much the whole country. So ifyou ask me, it's ten from 10 provinces and one terri tory. provinces and one territory. Could you provide us with the number of ridings for those Mr. David Christopherson: And are the complaints similar in 800 complaints? nature, sir? Mr. Marc Mayrand: I think it's almost 200 ridings. Mr. Marc Mayrand: Specifie allegations regarding varions types of phone calls- Mr. Marc Garneau: The 800 complaints? Mr. David Christopherson: Given that, how likely is it that it's Mr. Marc Mayrand: Yes. Almost 200 ridings across the country. one rogue person who would be behind this? [English] Mr. Marc Mayrand: I think that would be speculative. I think the Mr. Marc Garneau: I would like to ask you, with those 800 commissioner has to carry out his investigation and determine ali the complaints, how is that funnelled down into individual cases that facts. have been brought before the elections commissioner? l'rn sure sorne Mr. David Christopherson: Okay. of them deal with the same potential offence. How is that worked down into a number of specifie files, ifyou like, that are going to be Do you have ali the tools you need? I know that you have the or are being investigated by Elections Canada? financial resources, because you can draw upon the consolidated Mr. Marc Mayrand: Weil, that's really a matter for the revenue fund, which gives you basically unlimited resources. What commissioner. l'rn not sure I fully understand the question. We've about legislative tools for these specifie investigations? Do you have put in additional resources to deal with the intake of ali the ali the tools you need? complaints and contacts we're receiving. There is a preliminary Mr. Marc Mayrand: Weil, as I said, these are penal investiga­ triage taking place, as you would have read in the newspapers. Many tions, so the commissioner can draw on the varions tools that exist in of the complainants have already been contacted by personnel from the Criminal Code. For instance, sorne of the things that have been the commissioner's office. It's following its course. reported are around ITOs, which is a procedure provided in the Mr. Marc Garneau: Okay. Thank you. Criminal Code to secure information. I will in due course come back with a report suggesting maybe sorne areas where tools can be You mentioned in your introductory remarks that you would be improved. submitting a report within a year. I just want to be 100% clear that Mr. David Christopherson: So you do have a sense that there's that's within a year of today-or is it within a year of the last sorne irnprovement that could be done, and you'll come back to us election? with those recommendations- • (1135) Mr. Marc Mayrand: I will come back- Mr. Marc Mayrand: Not a year from the last election- Mr. David Christopherson: -as you have in the past with others Voices: Oh, oh! that hopefully we're going to make sorne gains on. Mr. Marc Mayrand: -I can assure you of that. It's within a year Do you currently have the power to compel witnesses to appear or as soon as possible. before you and to put them under oath? Can you give them any kind Mr. Marc Garneau: As soon as possible. Okay. of immunity? When you're dea!ing with witnesses in your investigation, what is the extent of your powers? As you know, there are court challenges involving eight ridings at · Mr. Marc Mayrand: There's no power to compel an individual the moment, seven of them from the Council of Canadians, and one either to appear orto produce documents. For documents, it requires in Etobicoke Centre. As you pointed out, an elector is free to go in a court order. Again, the commissioner and the investigator have the front of a court and challenge the result of an election on the grounds same authority as investigators under the Criminal Code-no more, that it was not done properly and ask that it be overtumed. Does that no less. process go forward regardless of.... ? Does it have to wait until your report cornes out a year from now- The Chair: Thank you, David. Mr. Marc Mayrand: That's totally independent. Mr. David Christopherson: Does that do it? Okay. Thank you, Chair. Mr. Marc Garneau: -or is it an independent process? Thank you, sir. Mr. Marc Mayrand: It's totally independent. The electors who are bringing those proceedings will have to present their own The Chair: Monsieur Garneau, seven minutes for you. evidence. [Translation] Mr. Marc Garneau: Similarly, ifthere are other court challenges Mr. Marc Garneau (Westmount-Ville-Marie, Lib.): Thank that arise in the days to come, they can go forward in the same you, Mr. Chair. fashion? 1399

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Mr. Marc Mayrand: Yes. Mr. Marc Garneau: I have one last question. You mentioned that there are potentially as many as 200 ridings, and that there are 250 Mr. Marc Garneau: Okay. files. If anybody in those ridings feels that, yes, there definitely was In the media, of course, we have heard about the famous Monsieur something that should not have happened, are they free to go Poutine and about how there was a transaction through PayPal. forward and as an individual elector go to a court and challenge the PayPal had provided a copy of that transaction, and RackNine, result, or do they have to wait for your report? through which the caUs went, provided an IP address. • (1140) Is that information going to allow the elections commissioner to Mr. Marc Mayrand: No, the mechanism provided is totally identify Monsieur Poutine? separate from my office and the commissioner's office. That's a remedy available to aU electors, in accordance with the Elections Mr. Marc Mayrand: I will not comment on the investigation. Act. This information was publicized by the media after notice was taken of documents that were presented in court. I can only say that the [Translation] investigation is following its course. Mr. Marc Garneau: So they don't need to wait. Mr. Marc Garneau: I have to admit l'rn curious to know whether Mr. Marc Mayrand: No. the IP address came from an Internet cafe and the credit card was a Mr. Marc Garneau: Thank you, Mr. Mayrand. disposable credit card. [English] Mr. Marc Mayrand: Many of us are. The Chair: Thank you. Mr. Marc Garneau: Yes, but at this point you're not free to share that information with us. Mr. Williamson, go ahead for a four-minute round, please. Mr. John Williamson (New Brunswick Southwest, CPC): With respect to the court challenge that has come forward, at what Thank you, Mr. Chair. point would Elections Canada become involved? Does this await the ruling of a judge before anything happens, or is Elections Canada Monsieur Mayrand, thank you for being here today. brought in to check on whether there's any validity to the complaint? I appreciate your comments. l'rn a new member ofParliament and Mr. Marc Mayrand: We were served yesterday with the have just gone through an election. You have now kind ofboiled this proceedings there, so our counsel is looking into that. down to 800 complaints you're investigating. On those matters we act very much as an amicus curiae, so we When we receive information from Elections Canada in New assist the court in its hearing of the matter and we provide Brunswick Southwest, there are roughly 50,000 to 60,000 voters on information the court finds necessary to conduct the hearing. average in New Brunswick. But mistakes do happen. Can you talk Mr. Marc Garneau: As a final question, are you able to share about that briefly? with us how many actual specifie discrete investigations are under way within the office of the elections commissioner? We aU know I recognize that you are constantly updating your data between the start of the election and voting day, and that you nail it down near the about Guelph, of course, and we've heard about Thunder Bay and end, but of course we're using the data provided by your office things like that, but do you know how many are ... ? initially. So is it possible that a name or two from another riding, Mr. Marc Mayrand: The only thing I can say for our purpose from a neighbouring riding, or from another province can today is that there are roughly 250 files open in the commissioner's inadvertently get put in New Brunswick Southwest? Do mistakes office. like that ever happen? I would caution, however, against drawing too much from those Mr. Marc Mayrand: Errors could happen. It's not an error-free things. Many complaints may be combined in a single file or may be system. You can imagine that with 24 million electors, yes, there will combined in a single investigation. be sorne errors from time to time, but there are mechanisms to identify them and correct them. Mr. Marc Garneau: And that was really what I was getting at in one of my earlier questions. I would point out that candidates play a key role there. If they see errors in the list, they should bring it to our attention. You mentioned that you have aU the resources that are available. I have a question of interest here. Sorne of these investigations require Mr. John Williamson: I agree, and I saw a lot of the work that is people who have expertise in doing investigations. Is that a limiting done by volunteers provided by the parties. But if the local factor here, or has the elections commissioner been able to identify campaigns themselves are taking the data provided from Elections the right people with the right experience to do this kind of Canada, loading it into our computers, matching those names with investigation? It's obviously a specialized task. phone numbers, and then working off that, either communicating with live caUs or autodials or mail.... Mr. Marc Mayrand: l'rn confident the commissioner has the required expertise, the qualified and very experienced investigators In New Brunswick Southwest, for example, it's conceivable I to look into these matters. As is the case for any investigation, where could have contacted a number of voters, particularly in the early there is a need for special knowledge, you can contract resources and days of the campaign, who didn't have the right to vote for me. Is acquire that knowledge. that a possibility? 1400

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Mr. Marc Mayrand: It's always a possibility. I don't know how their concems vis-à-vis the who le situation. In many cases, they are those various databases are working and how weil they're working asking that the act be amended. People are making all kinds of together. requests and suggestions along those !ines. As for the 800 corn­ Mr. John Williamson: Okay. Fair enough. plaints, they are specifie allegations about calls that voters received. Mr. Philip Toone: You said that, if there were criminal I mean, in a carnpaign we're moving quite quickly as weil, trying prosecutions, the reasonable doubt test and other factors would to correct data. We see errors, and I know we send it back to your have to be considered. That is completely normal. Is there any hope office. That happens officially through Elections Canada offices that that those 800 complaints will prove that there was an election fraud are set up in the ridings and as weil from our carnpaigns, working beyond a reasonable doubt? together. At the same time, we're still carnpaigning. We're still sending out literature, making calls, identifying voters, contacting Mr. Marc Mayrand: You are talking about well-founded them, and urging them to get out to vote. complaints, but these are complaints that we have received and that we have to review and investigate, depending on the circurnstances. Now, 800 strikes me as potentially just a few errors per riding in For criminal convictions, the allegations have to be proven beyond a the grand scheme of the number of potential voters. What's your reasonable doubt. sense of the number? When you look at this 800, do you think it's a. .. ? Mr. Philip Toone: There must be criteria to determine whether a complaint is well founded. What are the criteria? Mr. Marc Mayrand: Without speculating too much, there are maybe two points I would make. Mr. Marc Mayrand: These are offences set out in the act. We are basically talking about interference with an elector's right to vote. We know in the case of Pierre Poutine that there were at !east 6,700 calls placed. Again, if! look at the complaints received, there's Mr. Philip Toone: What would be considered evidence? We often quite a gap there. talk about caUs. So we are talking about verbal elements. In that case, what makes a complaint valid? What criteria will it be based The other thing is that, yes, there could be errors, and very on? Is there something written? Are there affidavits? What tools are legitimate and good-faith errors. What is troubling here is that there you using? were definitely calls that were placed on behalf of people, falsely Mr. Marc Mayrand: We have received sorne affidavits, which I placed on behalf of people, including Elections Canada. have seen, but that is obviously ail part of the investigation. It is up Mr. John Williamson: Sure. to the commissioner to make sure that he bas ail the facts he needs to conclude whether a complaint is founded or inadmissible. After the Mr. Marc Mayrand: So error or not, in the addressing of the investigation, if he is convinced that he bas enough facts to prove an phone numbers, it's a- offence, as I said, he will have to report to the director of public Mr. John Williamson: Yes. l'rn not trying to discount those prosecutions who will decide whether or not criminal charges are isolated incidents-exactly. appropriate. As my last question-this bas been put on the table a little bit-do Mr. Philip Toone: Have you received or seized documents from you still stand by the certification of the election results in the ridings political parties? across the country? Mr. Marc Mayrand: To my knowledge, we have not seized Mr. Marc Mayrand: Absolutely-unless a court determines documents from political parties, but, once again, that is up to the otherwise, yes. I certified those writs when they were retumed, and I commissioner. stand by those certifications as we speak. Mr. Philip Toone: So you are handing that over to the • (1145) commission er. The Chair: Thank you, Mr. Williamson. Mr. Marc Mayrand: Only the commissioner can go after documents. Mr. Toone, for four minutes. [Translation] Mr. Philip Toone: To your knowledge, bas he done so? Mr. Philip Toone (Gaspésie-Îles-de-la-Madeleine, NDP): Mr. Marc Mayrand: As we saw in various media reports, Thank you for corning to give testimony. It is very interesting. documents have demonstrated to the court that sorne information The scope of this investigation is quite extraordinary. Has there been came from third parties. I would like to point out that those orders an investigation of such magnitude recently? We are talking about don't mean that people who provide that information are under 200 ridings, 250 files, 800 well-founded complaints and 40,000 Ca­ investigation. That is an important distinction. They are third parties nadians expressing concerns. Is this a frrst? who have information that might be valid for the investigation and that bas nothing to do with whether they are ·under investigation or Mr. Marc Mayrand: It is unusual, to say the !east. not. Actually, it is the other way around. Mr. Philip Toone: What is the difference between a well-founded Mr. Philip Toone: Have you received documents from the NDP? complaint and the concerns expressed by 40,000 Canadians? Where do you draw the line? Mr. Marc Mayrand: We have received sorne letters and information from NDP representatives. Mr. Marc Mayrand: Those 40,000 people are what we caU contacts. They are people who contact Elections Canada to express Mr. Philip Toone: Are they under investigation? 1401

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[English] Mr. Harold Albrecht: Every single complaint is important. Every single complaint is important, and we want every one of those The Chair: l'rn sony, Monsieur Toone, but you're over your time. complaints to be investigated. Thank you. My question for Elections Canada is, what is the process? When Mr. Albrecht, four minutes. you receive that complaint, how does Elections Canada follow up? Mr. Harold Albrecht (Kitchener-Conestoga, CPC): Thank Have each of th ose complainants been contacted as to what is being you, Mr. Chair. done? At the end, is there a response they receive that's in writing? How do you close the Ioop, if I can use that term, in terms of th ose Thanks to you and your colleagues, Mr. Mayrand, for being with complaints that have been Iodged? us today. Mr. Marc Mayrand: Very quickly, each and every complaint is In your report on the 41st general election, you state, in the very acknowledged. An acknowledgement is sent to the complainant, and frrst couple of pages, " .. .! can say with confidence that the election at the end of the process the complainant is advised of the outcome if proceeded smoothly and that Canadians were presented with an there was an investigation or whatever took place. So there is a accessible electoral framework that they could trust and use". minimum of two contacts. Mr. Harold Albrecht: l'rn sony... ? Today at the conclusion ofyour remarks you said, "We al! have a ro!e in preserving trust in our electoral process". You said, "This Mr. Marc Mayrand: There is a minimum of two contacts with includes not only Elections Canada but... the electors themselves, the the plaintiff. candidates, the [political] parties, and also the media". Mr. Harold Albrecht: That's through the process of the investigation of the complaint? I am confident that every person around this table is concemed about protecting the integrity of our electoral system. I can say with Mr. Marc Mayrand: Sometimes there may be more if there is an confidence that every person around this table-inc!uding those on actual investigation taking place. Again, I think we have to be this side-is very hopeful and is reassured to hear your comment careful. A complaint does not equate to an investigation. I just want today that Elections Canada does in fact have the resources to to make that distinction once again. complete this investigation. Each and every complaint is acknowledged by Elections Canada, depending on the point of entry in Elections Canada, and it is I just need to point out-and I know that al! of us around this table responded to following whatever review process there is-that could know this already-that during the writ period, every candidate goes be administrative or sometimes it might warrant a referral to the door to door: they're knocking on doors, making phone caUs, commissioner-and then it will take its course. identifying voters. If that contact is made early in the campaign, it's quite possible that someone will indicate overwhelming support on Mr. Harold Albrecht: Okay, thank you very much. day two or three of the campaign. By week five of the campaign, Thank you, Mr. Chair. they may have changed their mind, but that person has been identified as one of my supporters. I will contact .. my office will The Chair: Mr. Lukiwski. contact that person on election day asking them to please get out and Mr. Tom Lukiwski: Thank you very much. vote. In the event that they've changed their mind in that time, it's possible that they could perceive that to be harassment. Thank you once again, Monsieur Mayrand.

I think it's important that the Canadian public understand that al! I want to get back, if I can, to the complaints versus contacts, candidates, or at !east most candidates, try to get door to door and because you'd mentioned there were roughly 40,000 contacts. I phone as many supporters as possible, and that there will be mistakes suspect most, or many of them at !east, came from e-mail-generated made-honest mistakes-in contacting voters, who may say at the form Ietters from groups like Leadnow and the like. But if there are end, "Well, we weren't even supporting that candidate, and now he's only 800 .... And l'rn not trying to minirnize it; I concur with my harassing me". colleague. If we're Iooking at 800 reasonably founded complaints over roughly 200 ridings, that would mean the average would be I think that on balance the number of complaints we're dealing about four per ri ding, but it could mean that one riding had as little as with here-you indicated it again today-is 800. You indicated one complaint lodged, or there could be as many as seven complaints earlier that there are 70,000 poiiing stations. Am I correct in that? in another riding. There are roughly 70,000 poiiing stations ... ? But based on the election retum.... You've said to your mind the • (1150) election was still valid, and you signed the wri.ts of election for al! of Mr. Marc Mayrand: Y es. these candidates who were elected. Since there's a court challenge in seven ridings, and we're talking about perhaps only an average of Mr. Harold Al brecht: That's roughly one complaint per 100 four complaints-in other words, perhaps as few as four examples, poiiing stations. even if they were verified-of a voter receiving a vote suppression or misleading phone cal! trying to get them to go to another voting Now, l'rn not trying to minimize the leve! of complaints­ station or prevent them from voting in itself, what is the level that is Mr. Joe Comartin: Real!y? required, going back to what David was saying, to overturn a result? 1402

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It wouldn't seem to me that if we were talking about on1y four You also probably understand sorne of the challenges the complaints per riding, even if they were Iegitimate, that would be commissioner is still facing in bringing this matter to full Iight. enough to overturn an election result. Do you have an opinion on The Chair: Thank you. what it would take to actually make you look at or even consider the possibility of overturning an election result? Mr. Comartin, four minutes, sir. • (1155) Mr. Joe Comartin (Windsor-Tecumseh, NDP): Thank you Mr. Marc Mayrand: The responsibility to overturn an election Mr. Chair. lies with the court, and the court will decide whether- [Translation] Mr. Tom Lukiwski: But what is your opinion? Thank you for being here, Mr. Mayrand. Mr. Marc Mayrand: My understanding of the legislation is that there has to be a demonstration that the result of the specifie riding [Eng/ish] election was affected by the irregularities that the complainant has I just want to challenge something, because it's disturbed me from claimed took place. the beginning. One of the complaints you got was from my wife and Mr. Tom Lukiwski: This is hypothetical, but based again on the another supporter. I know you die!, because Mr. Mathews used it in information you have--since there is a court action now occurring in the affidavit in Edmonton to get that rnaterial from RackNine. seven ridings-would you be defending the election results if the outcome of a court challenge was actualiy that there might be We've never beard from you. We've never beard from the evidence here? What would your position be as Elections Canada? commissioner and we've never heard from Mr. Mathews. The first time I knew that you'd done anything with the information we gave Mr. Marc Mayrand: It would be to act as amicus curiae and to you, which was the phone number that eventually led you to, at !east provide ali the information that the court may need from us in order as far as we've got to, Pierre Poutine, from one ofthose two calls that to assess whether or not an election should stand. we received in my riding .... Mr. Tom Lukiwski: Would you offer an opinion? So I was quite surprised, quite frankly, when you gave the answer Mr. Marc Mayrand: No. to Mr. Albrecht that every one of the complainants has been Mr. Tom Lukiwski: So when you're saying right now that you've contacted. I can assure you that my wife bas never been contactee!, validated all- and neither has the other volunteer been contacted. Mr. Marc Mayrand: That opinion has to be one of the court. Mr. Marc Mayrand: Acknowledged-I didn't say contacted. Mr. Tom Lukiwski: I understand the decision has to be the Mr. Joe Comartin: We've beard nothing. court's, but since you are the Chief Electoral Officer of Canada, I would suspect that courts would want to hear an opinion based on Mr. Marc Mayrand: I said that complaints were acknowledged. why y ou validated the results and if you thought the evidence given Mr. Joe Comartin: But you said in sorne written form ... ? was sufficient to overturn the results you had already validated. Mr. Marc Mayrand: In the form we normally use. So it could be Mr. Marc Mayrand: I would advise the court to use the e-mail, it could be a letter, it could be a phone cali, it could be information it had to determine whether it believed the results had various .... been affected, given the evidence that was presented to the court. Mr. Joe Comartin: Neither my wife nor the other person was That's the test the court has to use. It's up to the court to rnake that acknowledged-at ali. There was nothing. The first we beard about determination. it was when the information came out in the press that the phone Mr. Tom Lukiwski: Thank you. number we had given had been used. The assumption then is-and I assume this is factual-that With regard to the court action that's outstanding-I guess the Elections Canada has never in the past or would never in the future eight ofthem-you're named, as the Chief Electoral Officer, and the recomrnend that an election result be overturned? Attorney General is named. In past practice, who has defended Mr. Marc Mayrand: That's not our role un der the statu te. If it's a these? role that parliamentarians want to give to Elections Canada, we can You obviously do not. I understand your role is more of a discuss it. resource, I can say, to the court. Is the Attorney General responsible Mr. Tom Lukiwski: Okay. Thank you. for defending these? What's been the past practice? Finally, have you any sense whatsoever-it's an unfair question, • (1200) but as David said, l'li ask it anyway--ofhow long the comrnissioner Mr. Marc Mayrand: I should point out that it's rare that elections of elections might be in his current investigation? are contested in such a manner. l'rn not aware that the Attorney General bas taken an active part in.... It depends on the issues being Mr. Marc Mayrand: I think it would be highly speculative to raised, but l'rn not aware that they've taken an active part in such anticipate the timing ofthese matters. The comrnissioner has been at proceedings. it since May 5, as I mentioned earlier, and I think you have a good sense of what's been happening since May 5. Mr. Joe Comartin: Have you any indication- 1403

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Mr. Marc Mayrand: I should also point out that whatever is the was alarmed to see that number. You said th at 700,000 were updated, role of the Attorney General, it is completely independent and but that still leaves 3.1 million in error. separate from the ro1e and position that Elections Canada could take on any issue. Just for Canadians' confidence--and I know that's why you're here -can you relay your confidence in the system with that high an Mr. Joe Comartin: So you've had no indication from the amount of error? Can you give Canadians a sense of confidence that Attorney General on how they're going to respond to these court we still have a good system? l'li go back to your numbers of four per actions. ri ding in terms of caUs, of complaints, of actual calls. We see quite a Mr. Marc Mayrand: I don't think so, not yet. discrepancy in numbers there. A significant number of errors .. .it's Mr. Joe Comartin: Monsieur Perrault. 3.1 million as opposed to four per riding in terrns of net complaints. There's quite a gap there, as you stated. Mr. Stéphane Perrault (Senior General Counsel and Senior Director, Legal Services Directorate, Elections Canada): l'rn only How can Canadians still be confident in the Elections Canada aware that they've been served. We have not had any discussions system? with the Attorney General's office. Mr. Marc Mayrand: Canada's system is recognized worldwide Mr. Joe Co martin: Mr. Mayrand, in the whole attempt on the part as one of the better systems that exists-if not the best-especially of Conservatives to diminish the number of calls and the in terms of registration of electors. Countries aU over the world are significance, in the lawsuit there's a pleading that the number of coming to us to see how we manage the list of electors. It is a mode! calls that have come in can be scientifically measured as to how around the world. many you didn't hear from and how many calls in fact were made. Have you looked at that material, or have you ever seen a study like l'rn not sure .... Again, we have to be careful with numbers here. I that? would point out that a single elector being misdirected from his poU is a serious offence at the end of day, and that's what investigations Mr. Marc Mayrand: Not in detail; I've read about these things. are about. Again, if it's relevant to the investigation I am sure that would be considered by the commissioner, but l'rn not sure how it would be. In terms of the impact on the system and how the system can be improved, yes, I think I've made a regular report to Parliament to As I mentioned earlier, we know from court documents that 6, 700 suggest sorne improvements to the system, and I will continue to do caUs were placed under that famous 450 number. Again, we got 70 that. I think we have to be careful not to mix the two- complaints, or a little bit less than that, from the Guelph riding. So we know that many people don't complain, obviously. Mr. Bob Zimmer: Right, and I guess I would- Mr. Joe Comartin: Okay, but if you're asked for that kind of Mr. Marc Mayrand: -and l'rn not suggesting you are, but.. .. information by the courts, you're not in a position to be able to give •(1205) it; you haven't do ne that kind of study yourself, or Elections Canada hasn't done that kind of study itself. Mr. Bob Zimmer: No. Mr. Marc Mayrand: Correct. I would completely agree with you when you say that one is one Mr. Joe Comartin: With regard to the commissioner­ too many. We absolutely agree that if it's done deliberately, or even non-deliberately-if it's an accident-that is unacceptable. The Chair: Your time is up, Joe. Mr. Joe Comartin: That can't have been four minutes. But I guess what l'rn trying to get from you-and you've stated it -is that we can still have a high degree of confidence that our The Chair: It was four minutes and 14 seconds, to tell you the electoral system in Canada is among the best in the world. tru th. Mr. Marc Mayrand: Yes, and we'll make sure it remains so­ Mr. Joe Comartin: Okay. Thank you. absolutely. The Chair: Mr. Zimmer, four minutes. Mr. Bob Zimmer: Right. Mr. Bob Zimmer (Prince George--Peace River, CPC): Sir, Mr. Marc Mayrand: Again, in terms of error, there's one thing I thank you for coming today. can assure every Canadian and the committee of: that caUs made on behalf of Elections Canada are not errors. l'rn sorry, but this is not I think 30 million Canadians would agree that putting on a general error. This is a deliberate attempt- election is one difficu1t task, to say the !east. We beard that there were 70,000 polling stations, which certainly is admirable, and that Mr. Bob Zimmer: Yes, and I- errors will be made regardless of how good an effort is made--and Mr. Marc Mayrand: -to thwart the right_ of an elector. any error is really one too many. Mr. Bob Zimmer: I would agree with you there, but I guess what I would like to talk about something specifie. We're hearing about l'rn referring to is that if ridings are given incorrect data and are deliberate acts that were attempting to dissuade voters from voting or responding to that data, and if Canadians are responding to that data were sending them to the wrong polling stations. I would suggest, and going to the wrong polling stations as a result of incorrect data .... though, moving to the non-deliberate acts. I think it was mentioned Simply put, again, if there's one error, there's one too many. But I earlier that that there is 84% accuracy in terms of calling lists or think aU parties would agree that if it's a deliberate act, we'd voters lists, but that still leaves 16% in error. I guess most of us .... I absolutely want to get to the bottom of that, and we do. 1404

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That's not what l'rn saying. I guess what I would ask you­ weli assessed, and there will be rneasures to deal with them. It will The Chair: Thank you very much, Mr. Zimmer. I know that you be up to the committee to find whether or not they are satisfactory. would ask, but your time is up. Hon. Laurie Hawn: I'd be concemed about that.

I have Mr. Hawn next on the list, but I know that Mr. Lukiwski This is not at ail rneant to be disparaging, but apparently in the wants a piece of it, Mr. Hawn. So you two work out sharing NDP leadership convention there was sorne manipulation of online arrangements, will you? voting, which would cause me con cern if we applied th at pro cess to Hon. Laurie Hawn (Edmonton Centre, CPC): Weil, he's had a a larger election. couple of tums, so l'Il go first. l'li save us sorne time. Mr. Marc Mayrand: Without getting into that, l'rn sure the party Mr. Mayrand, thank you so much for being here. will look into that. I just want to repeat something you've said, because it's my I will point out, however, that here in Canada an increasing biggest concem, frankly, in ali of this. You said: number of rnunicipalities are running online voting. They have done it for alrnost a decade with no major issues. In fact they are becoming 1 find it !rouhling to hear somctimes sweeping and vague allegations of irregularities bcing made public many months after the election and not supported models around the world again. Other countries are looking into it. by specifie facts. In sorne cases, the complaints arc made to the media without any •(1210) infonnation being forwarded to Elections Canada. Such allegations cannet be verified, and merci y undennine the trust of Canadians. Hon. Laurie Hawn: Okay, thank you. That's my biggest persona! concem in ali of this. It's that this The Chair: Mr. Lukiwski, you have five minutes. circus-and it's a circus-is undermining, notwithstanding the Mr. Tom Lukiwski: l'rn just trying to get straight in my rnind legitimacy of the processes that need to be foliowed to get to the what constitutes an election offence. In my example earlier about bottom of it, and no body argues with that.... But this whole process, what happened in Guelph with Valeriote and the misleading this circus aspect of this process, has served to do nothing but Mr. phone calls coming out of his campaign---correct me if l'rn wrong, unfortunately degrade the trust of Canadians in our system. I've spent sorne time in Afghanistan, and more recently in Haiti, and I because I don't want to put words in your rnouth-I believe you said agree with you that our system is a mode!. . that if it could be determined that those phone calis constituted advertising, they could be in violation of the Elections Act. Is that l'Il ask one question first and th en another one if I have time. Do correct? you know of previous Canadian elections where we have had such a Mr. Marc Mayrand: That's if they did not carry the proper tag spate of late complaints coming out so many rnonths after an line- election? Mr. Tom Lukiwski: Which we know they didn't. Mr. Marc Mayrand: l'rn not personally aware ofthat. We would have to do sorne research on that. Mr. Marc Mayrand: -or if the expenses for them were not Hon. Laurie Hawn: Does either of your colleagues have any properly accounted for. knowledge of that? Mr. Torn Lukiwski: Okay. What if they were not determined to Mr. Marc Mayrand: No. And they have lots of experience. be advertising? Would that mean that type of phone call would be acceptable? Hon. Laurie Hawn: I've been involved in only four elections, and sorne here have been involved in many more, but this is the first tirne Mr. Marc Mayrand: I think that's an issue we have with the I can recall that we've had that. legislation. Yes, if it's not advertising, there is nothing in the legislation that govems telemarketing per se. Mr. Marc Mayrand: We would have to go way back in time. Hon. Laurie Hawn: Looking forward, I would say technology is Mr. Tom Lukiwski: And the determination ofwhether or not it is a two-edged sword. Technology is great, but if it's used for wrongful advertising is yours? purposes by the wrong people obviously it can undermine the Mr. Marc Mayrand: In this case specificaliy it will be up to the process. cornmissioner, and up to the courts eventually, if charges are laid. What would be your quick view on things like suggestions that we The Chair: I know your friend helped you with a little bit oftime. should go to online voting, and things like those kinds of technological-I won't cali them advances---changes? What would Mr. Christopherson, go ahead for four minutes. be y our view of the risk or reward of sorne of tho se things? Mr. David Christopherson: Thank you very much, Chair. Mr. Marc Mayrand: That's something I've indicated repeatedly that I wish to bring back to this committee over probably the next First of ail, I would say this in response to Mr. Hawn. He is two years so that we can agree on whether or not to pursue a pilot concemed about the circus effect of this. He also rnentioned that project for online voting. Canada is a role mode! for elections. It is that because when there is any hint of anything untoward, Canadians do react the way they do There are risks associated with it. Whatever presentation I bring to and they do create a political circus to ensure fllat it gets looked at. I this cornmittee, the risks will be weil identified. They will have been would say to hirn, with great respect, that's why we're a mode!. 1405

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Mr. Mayrand, may I ask you to characterize, if you can, how The Chair: Mr. Reid. seriously you would take proof, ifthere were proof, that there was an Mr. Scott Reid (Lanark-Frontenac-Lennox and Addington, organized effort by someone to misrepresent themselves as Elections CPC): l'rn assuming that we've passed the motion. Canada during the election? How seriously would you take that? How serious an attack on our democracy is that, or is it really not a The Chair: On unanimous consent, yes. big deal and we really ought not to get upset about it? Mr. Scott Reid: AU right. Good. So l'rn not talking to that. Mr. Marc Mayrand: I think it's absolutely outrageous. Whether I wanted to ask sorne additional questions, if I could. it was organized or bigger or whatever, the fact that electors in at !east Guelph were misdirected by caUs made by those misrepresent­ The Chair: Mr. Reid, we have finished our list, and if! give you a ing themselves as being from Elections Canada is absolutely question, !'11 need to give more. outrageous. It should not be tolerated. It should be sanctioned I know that he hasn't had one-nor has Madame Latendresse-but severely, and we need to look at the legislation to see whether we we have gone through the full normal scope. l'rn at the will of have the right framework there. But again, that is totally committee. We're not at our time yet. unacceptable in a modern democracy. Mr. David Christopherson: Thank you, sir. I appreciate your I'll certainly entertain Mr. Reid for four minutes, and then we'll saying that, because it sets the standard that Canadians expect our find a way of getting one for each party. election process to meet. Go ahead, Mr. Reid. Finally, you mentioned, if l'rn paraphrasing you correctly, that Mr. Scott Reid: Thank you. That's ideal, actually. there are complaints from all across Canada. Can we interpret that to mean that there are investigations, then, in virtually all the provinces I think part of what has been going on here is that we're asking across the country? ourselves if what we've heard is an indication of sorne kind of alligator under the bed. Is there something bigger going on or not? Mr. Marc Mayrand: I will not comment on that. That's with the The assertion has at !east implied that there's what is either commissioner. I've said as much as I could say on these matters. widespread fraudulent voter suppression or impersonation of Mr. David Christopherson: I respect that, sir. I hope you can Elections Canada or something of that sort. appreciate that it's our job to push you up to the line as much as we can. But what strikes me is that if there's really an alligator under the bed, I wonder if the alligator under the bed isn't simply a widespread My last comment, Chair, would be a motion. I would move that problem with trying to figure out where people actually live in order Mr. Mayrand be invited back and be scheduled to appear before the to contact them in a way that.... You can see that there's a distinct House rises in June, just to give us an update on what's going on. problem here. The Chair: Sure. I would ask Mr. Mayrand if he would be happy On the normal voters list, the normal number of voters put in the to do that. I know what the answer is, I think, but.. .. wrong location is 16%. You indicated that after you go through it Mr. Marc Mayrand: Of course. Yes. and issue the final voters list, it cornes down, I think you said, to a Mr. David Christopherson: So can I consider that to be an order 12% error rate. Is th at correct? of the committee, then, Chair? • (1215) The Chair: Well, it's a motion, and we know what happens with Mr. Marc Mayrand: Or so. motions. They get voted on. Mr. Scott Reid: That's still millions of Canadians. Mr. Lukiwski. I know from experience.... In the last election I picked up that final Mr. Tom Lukiwski: Mr. Chair, the govemment has absolutely no voters list myself for my ri ding. First of all, I had to drive across the problem with that. riding. It's a two-hour drive in each direction, so it took all day. But The Chair: Great. on top of that, it was about 48 hours or 72 hours before voting day, so you can understand that it's hard to get that data and input it and Monsieur Garneau, to make it unanimous among parties ... ? all that sort of thing. Any kind of actual.... In our case, we do more Mr. Marc Garneau: l'd be happy to second it. print communication. You can't get that out with the list. The Chair: Then I think we need no motion. As a final note, this is not something that Elections Canada has Monsieur Mayrand, you and I will have to discuss this. The done, but !'11 make the point from the last provincial election. committee will ask you back before we rise for the summer, and you Elections Ontario put my wife and me-we live in the same bouse­ can give us another update as to where we've gone. in two different ridings. So things like this occur all the time. It is, as a practical matter, very difficult to overcome that problem. Mr. Marc Mayrand: I was hoping to extend an invitation to visit our office to discuss other matters- I think there is a widespread problem here that leads to many of Voices: Oh, oh! the kinds of complaints you've heard. You've heard people saying, "! was asked to vote in riding X, and I don't live there". That can be The Chair: I think they would rather have you here. explained by this ongoing database problem that we all have as a Mr. Marc Mayrand: Yes, I understand. joint problem. 1406

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Mr. Marc Mayrand: The list is not perfect. I don't lœow that it •(1220) will ever be, because the minute you produce it, it's already outdated. Mr. Marc Mayrand: Again, as amicus curiae, we will provide People move all the time, and aU sorts of things happen. That being information that the court would find useful, information that we can said, I still can't reconcile the idea of people pretending to be gather that the court would find useful in its hearing of the matter. I Elections Canada and trying to misdirect people. shouldn't speculate at this point in time. I don't lœow if the court will Mr. Scott Reid: There's no doubt about that. Put simply, it's be asking for information that is under investigation .... I don't lœow illegal. But I think I'm right in say.ing that the number of instances how the court will manage that. you're going to find of that, as a proportion of the total number of Mr. Marc Garneau: So the way it's done is that the court, in complaints people are raising, will be very, very small. loo king at it, will sort of automatically caU Elections Canada and say, Mr. Marc Mayrand: A gain, that's wh y one of my key messages ''Do you have any light to shed on this?" today is that we need to let the investigation unfold. We shouldn't Mr. Marc Mayrand: We've been served by the proceedings, but draw conclusions. There may be all sorts of reasons for the certain it's mainly driven by the applicants. The applicants will have to set things that have been alleged. what the evidence is to support their proceedings, and they will determine what they need in terms of information and witnesses. That's the responsibility of the commissioner: to determine what Again, it's a traditional court process. They will serve subpoenas and actually has happened. As for whether it was deliberate or an ask witnesses to bring information with them. unfortunate error, that's the job of the commissioner. In due course, he will complete his investigation, and I will be happy to report to The Chair: Thank you. the committee on the outcome. Madame Latendresse. Mr. Scott Reid: Thank you. [Translation] The Chair: Thank you, Mr. Reid. You're under your time. Ms. Alexandrine Latendresse (Louis-Saint-Laurent, NDP): Thank you, Mr. Chair. Mr. Garneau. Mayrand. I would like us to go back to Christopherson's Mr. Marc Garneau: Thank you very much. Mr. Mr. motion tabled in the House earlier this month. You must be aware of Mr. Mayrand, can you tell us whether there are any other caU the motion. It has three parts. The first part asks that Elections centres-other than RackNine, which we've heard a lot about­ Canada be able to request documents from political parties to ensure mentioned in any of the 800 complaints? compliance with the Elections Act. Mr. Marc Mayrand: No. That's part of the investigation. That's a Another part says that telecommunication companies that contact matter with the commissioner. I will not comment on any specifies, voters directly must register with Elections Canada. In addition, the especially not names. clients of those telecommunication companies, who request voter Mr. Marc Garneau: I believe Elections Canada looked into a contact services, must have their identity verified and registered. claim in Saanich-Gulf Islands in 2008 where there was an We lœow that the Elections Act has to be amended to reflect that. allegation of NDP caUs that were made that affected the outcome Can you think of any other pieces of legislation or things like that there. Can you tell us what the final ruling or report was from that should be changed accordingly? Elections Canada on that particular matter? Mr. Marc Mayrand: As I said earlier, my intention is to prepare a Mr. Marc Mayrand: Yes. Again, the plaintiff in that case did report by next year dealing with, among other things, the fraudulent receive the ruling or the finding of the commissioner that basically caUs allegedly made during the election. There are sorne elements in determined that he was not able to gather enough evidence to support the motion, in the resolution, that deserve our attention. There might the allegations that were made at the time. be other items that I will want to add or specizy in due course. Mr. Marc Garneau: So the allegations of falsely claiming to be Ms. Alexandrine Latendresse: Do you think that might help to the NDP were not....? You didn't have enough- prevent this type of- Mr. Marc Mayrand: He couldn't find the evidence to support the Mr. Marc Mayrand: Let's see if there is a bill. You can be sure allegations. that I will also have comments to make at that time. Mr. Marc Garneau: As my final question, there appears to be a Ms. Alexandrine Latendresse: As it stands right now- bit of a disconnect. You told me that people can proceed with a court Mr. Marc Mayrand: There are aU sorts of things. We see that in challenge and then go ahead, but in sorne cases, obviously, the what is made public. There are fake names, aliases and fake information that the elections commissioner may be collecting over telephone numbers. AU kinds of things are being camouflaged. That the course of the next year might be instrumental in the judge's goes against our entire electoral system, which is founded on ruling, but that judge will not necessarily have that information. transparency and openness. We will have to think about all those Do you automatically sort of feed into the ... ? If you lœow that a issues and see how we can incorporate it in the Elections Act or in court challenge is being issued and you come up with something, do other pieces of legislation. you feed that information to the judge so that it may assist him or her Ms. Alexandrine Latendresse: Do you think there are others that in their... ? could be amended to integrate that? 1407

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Mr. Marc Mayrand: We are thinking aboutit. If the government Mr. Marc Mayrand: Beyond violations of the Canada Elections consults us, we are definitely going to offer ideas. Otherwise, we are Act- going to make suggestions to the cornmittee if a bill is introduced. Mr. Marc Garneau: You mentioned violations of the Canada Ms. Alexandrine Latendresse: Thank you. Elections Act, but could there be prosecutions? [English] Mr. Marc Mayrand: It has happened in the past. The Chair: Thank you. Mr. Marc Garneau: And is it up to the cornmissioner to make that decision? That brings us to the end of this round of questioning. We are still before our time. If it's the will of the cornmittee, are there further Mr. Marc Mayrand: Yes, the cornmissioner will determine questions, or shall we adjourn for the day? whether there is an offence. l'rn seeing nods, but I've asked two questions. Mr. Marc Garneau: He will determine whether criminal prosecutions are appropriate. Are we finished? No. Mr. Marc Mayrand: The commission er will determine if there is Okay, we'll do a round of one-offs about two minutes long, and an offence under the Canada Elections Act. He will also determine if we'll be finished. there are violations of other acts, especially the Criminal Code. Mr. Marc Garneau: You were kind enough to mention that there Mr. Comartin, would you like to go first? were about 200 constituencies and almost 250 files. Could you Mr. Joe Comartin: Thank you, Mr. Chair. provide the cornmittee with more details, with something more specifie about the current investigations and could you name the Mr. Mayrand, you've obviously made continuous reference to the ridings that had complaints? How many complaints is that based on? cornmissioner. In terms of you coming back before the summer Without getting into the details of the complaints per se, could this break, do you get updates from the cornmissioner as to the status of information be available to our cornmittee? the investigation? Is there that type ofrelationship between his office and yours? Mr. Marc Mayrand: In general, we don't provide specifie information about our investigations. It has to do with the Mr. Marc Mayrand: The cornmissioner and I are maintaining presumption of innocence, privacy, the quality of the investigation, what I would describe as an arm's-length relationship. He will give and so on. me general information about the workload, the type of investigation they're carrying out, but at a very general leve!, and the resources That being said, in June, I might be able to provide you with more required. But I do not ask and he does not offer specifie information information about the workload and the way the cornmissioner's about specifie investigations and where they are at. office is organized, if that is of any interest to the cornmittee. •(1225) Mr. Marc Garneau: Thank you very much. Mr. Joe Comartin: So you get your information from Mr. Maher [English] and Mr. McGregor just as I do, l'rn assuming, as opposed to from the commission er? The Chair: Thank you, Mr. Garneau. Mr. Marc Mayrand: It's interesting, because I get the ITOs only Mr. Del Mastro, to finish us off, go ahead for two minutes, please. after they are filed in court. Mr. Dean Del Mastro (Peterborough, CPC): Thank you very Mr. Joe Co martin: Would there not be information in those ITOs much. that would have been co ming from your si de of the office-sorne of the complaints that you've had? Just to kind of tie things up here, Mr. Mayrand-again, thank you for your appearance-you've indicated that in the 308 election Marc Mayrand: Sure, but I don't know when the ITOs are Mr. results, you stand behind your determination of each and every prepared or when the order from the court is sought. I. find that out riding. That's part of your report that you've already made to this only when there is a return on the ITOs. cornmittee, and I thank you for that. Mr. Joe Comartin: Along the same !ines in terms of relation­ ships, are you aware of any police agency that has been called in to You indicated in your report that yo.u find it troubling to hear investigate, in addition to the work that the cornmissioner is doing? sometimes sweeping and vague allegations of irregularities being made public many months after the election and not supported by Mr. Marc Mayrand: The cornmissioner has an MOU with the specifie facts. We find that troubling as weil. We've referred to that RCMP, so he can draw on their expertise or assistance as needed. If as the unsubstantiated smear campaign. you're thinking about the provinces or municipalities, l'rn not aware of any investigations by those other bodies. I'd a!so like to point out that we have a couple of former very The Chair: Mr. Garneau, do you have a quick one-off? significant... well, a police chief and a cornmissioner of the OPP, who have been involved in sorne very significant investigations. One of [Translation] the things they're concerned with is sorne of the leaks. And I real! y Mr. Marc Garneau: Mr. Mayrand, is the cornmissioner who is want to say that I appreciate your cornmitrnent and your comment doing the analyses able to decide whether criminal charges should be specifically with respect to keeping these things in the strictes! laid, if he were to find that an individual is guilty, in his opinion? confidence. 1408

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I can tell you tbat there's been barm. There's been barm to The Chair: It's the will of the committee. We've bad the individua1s. There's been barm to companies. Even though, for commissioner of elections before us in the past; it's the will of the examp1e, the member for Winnipeg Centre bas apo1ogized for a committee to do so, I suppose. number of the out1andish things he said, and the NDP, there bas been Mr. David Christopherson: Well, it just seems to me that Mr. real harrn done. Mayrand had to refera lot of the questions back to the commissioner. Can you just confirm to the committee that you're going to work Ifwe're interested in getting whatever we can that is available in the to make sure that no leaks are occurring from Elections Canada? A public domain, it would make sense to invite the commissioner to number of folks in the media bave in fact come forward and come in and have a discussion with us too. indicated to me that they fee! Elections Canada bas been the source The Chair: Mr. Reid, on that point? of sorne of these things, or folks within Elections Canada. Can y ou Mr. Scott Reid: No, it's not. He asked if it's in arder, and in my just confirm that you're going to echo your comments to this opinion it is in arder, but ifyou're going to rule that, I'd like to know. committee that things will be kept in the strictest confidence? The Chair: It is in arder. On the point of arder, it is in arder that Mr. Marc Mayrand: There's anotber case of vague allegation we do invite him. be re. I would refer the committee to its scheduling committee, if that's Voices: Oh, ob! something they want to do. The committee on agenda could certainly Mr. Marc Mayrand: I can assure you, there's no source leaking look into having that happen. from Elections Canada, if that's the allegation. I can attest to that. Mr. David Christopherson: Would you not accept the motion right now, Chair, as being in arder, that we invite the commissioner I think someone should be cbecking their sources. There was an to come in, and then leave it to the steering committee to scbedule allegation in the media yesterday that a certain caU was scbeduled to the timing? be placed at midnight. We don't have that information, so it's certainly not coming from Elections Canada. Okay? The Chair: Mr. Reid, on that one? • (1230) Mr. Scott Reid: Chair, I was actually going to make basically the Mr. Dean Del Mastro: I thank you very much for that. Again, I same motion. appreciate your commitrnent to that, sir. The Chair: Okay. The Chair: Thank you, Mr. Del Mastro. Mr. Scott Reid: I guess that means I've spoken in favour of it. That finisbes our rounds today. The Chair: Do I see nods that we're okay to do that, and that the chair will speak with the scheduling committee to make that happen? Mr. Christopberson, did you say you bad sometbing? Sorne hon. members: Agreed. Mr. David Christopherson: I said I bad a point of arder. Mr. David Christopherson: Very good. Thank you, colleagues. The Chair: Go ahead, Mr. Christopherson. The Chair: Okay. Is there anytbing else for the good of the Mr. David Christopherson: My point of arder is actually by way committee today? No? Then we are adjourned. of a question to you. Is it in arder for this committee to request the commissioner of elections to appear before us? Tbank you, Monsieur Mayrand. 1409

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(Sworn October 29, 2014)

SACK GOLDBLATT MITCHELL LLP 20 Dundas Street West, Suite Il 00 Toronto, Ontario M5G 2G8

Steven Shrybman (LSUC No. 20774B) tel: 613-482-2456 fax: 613-235-3041

Solicitors for the Applicants

.... ~ ~ 0 THE COUNCIL OF CANADIANS et al -and- HER MAJESTY IN RIGHT OF CANADA AS Applicants REPRESENTED BY THE ATTORNEY GENERAL OF CANADA Respondent

Court File No. CV-14-513961

ONTARIO

SUPERIOR COURT OF JUSTICE

Proceeding commenced at TORONTO

APPLICANTS' APPLICATION RECORD

VOLUME4

SACK GOLDBLATT MITCHELL LLP 20 Dundas Street West, Suite Il 00 Toronto, Ontario M5G 2G8

Steven Shrybman (LSUC No. 20774B) tel: 613-482-2456 fax: 613-235-3041

Solicitors for the Applicants