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 BILL KERR Applicants 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. FROESE, MATT HENDERSON Respondents Page: 2 AND BETWEEN: T-620-12 KAY BURKHART Applicant and ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), DIANNE CELESTINE ZIMMERMAN (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 CHIEF ELECTORAL OFFICER), LAUREL DUPONT (RETURNING OFFICER FOR ELMWOOD-TRANSCONA), JIM MALOWAY, ILONA NIEMCZYK, LAWRENCE TOET, ELLEN YOUNG Respondents Page: 3 AND BETWEEN: T-633-12 KEN FERANCE AND PEGGY WALSH CRAIG Applicants and ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), DIANNE JAMES MALLORY (RETURNING OFFICER FOR NIPISSING-TIMISKAMING), JAY ASPIN, SCOTT EDWARD DALEY, RONA ECKERT, ANTHONY ROTA Respondents AND BETWEEN: T-634-12 YVONNE KAFKA Applicant and ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), ALEXANDER GORDON (RETURNING OFFICER FOR VANCOUVER ISLAND NORTH), JOHN DUNCAN, MIKE HOLLAND, RONNA-RAE LEONARD, SUE MOEN, FRANK MARTIN, JASON DRAPER Respondents Page: 4 AND BETWEEN: T-635-12 THOMAS JOHN PARLEE Applicant and ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), SUSAN J. EDELMAN (RETURNING OFFICER FOR YUKON), RYAN LEEF, LARRY BAGNELL, KEVIN BARR, JOHN STREICKER Respondents REASONS FOR JUDGMENT AND JUDGMENT I. Introduction ....................................................................................................................5 II. Background.....................................................................................................................7 III. The Statutory and Jurisprudential Framework..........................................................14 A. The Canada Elections Act..............................................................................14 B. Part 20 of the Act – CONTESTED ELECTIONS .......................................20 (1) The Act contemplates parallel criminal and civil processes ..........20 (2) The test, burden and standard of proof for 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 of Mr. Graves be struck?..................48 B. Admissibility and weight of the evidence.....................................................55 (1) Evidence of the applicants.................................................................55 (2) The ITO evidence...............................................................................56 (3) Mr. Penner’s evidence........................................................................65 Page: 5 (4) The evidence of Ms. 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 of the respondent MPs’ campaign managers ..................86 V. Conclusion on the Merits ............................................................................................86 A. Has “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 VI. Costs..............................................................................................................................93 I. Introduction “…very serious matters that strike at the integrity of our democratic process.” [1] In his remarks to the Standing Committee on Procedure and House Affairs of the House of Commons on March 29, 2012, Mr. Marc Mayrand, Chief Electoral Officer of Canada, made the following comments about the allegations that are at the heart of these applications: These are very serious matters that strike at the integrity of our democratic 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 process. [2] The applicants, eight Canadian citizen voters residing in six electoral districts, brought these proceedings to annul the results of the 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 of polling stations in their districts had been moved from the places specified 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. 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, largely 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 of that 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 favour. [5] As a result of these 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 effect 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 affected the outcomes in the subject ridings and I decline to exercise my discretion to annul the results in those districts. Page: 7 II. Background [7] These applications were brought ten months after 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 late 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”) sworn by Allan Mathews, an Elections Canada investigator. The Mathews ITO became 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 officials were actively investigating complaints made during and after the election. [8] The Mathews ITO was filed to obtain records from an Edmonton-based company called RackNine Inc., in relation to complaints by voters that there had been efforts to suppress votes in the electoral district of Guelph, Ontario. Mr. Mathews described the nature of the complaints as follows: Individual electors have described to me receiving telephone calls around 10:00 hours of the morning of May 2, 2011. The caller was usually described as a recorded female voice giving a bilingual message, who claimed to be calling on behalf of Elections Canada. The English message received by electors is as follows: This is an automated message from Elections Canada. Due to the projected increase in poll turnout your voting location has been changed. Your new voting location is at… Once again your new poll location is at… If you have any questions please call our hotline at 1-800-434-4456. We apologize for any inconvenience