Dismissing Democracy: Conservatives move to dismiss election legal actions

Media Release
May 22, 2012

OTTAWA – Seven Conservative MPs who won the elections being contested under the Canada Elections Act filed motions late on Friday before the long weekend to dismiss those legal challenges even before court has a chance to consider them.

“These motions are nothing more than an effort to dismiss the democratic rights of individual Canadians,” said Garry Neil, Executive Director of the Council of Canadians, which is supporting the legal actions. “If the Conservatives really want to get to the bottom of the robocalls scandal, they would be keen to have these cases heard and decided. Instead, they are bringing entirely meritless motions to prevent that from happening.”

A response prepared on behalf of the applicants by legal counsel Steven Shrybman is included below.

The motions served by the counsel for the Conservative MPs are available here: Don Valley EastElmwood-TransconaNippissing-TimiskamingSaskatoon-Rosetown-BiggarVancouver Island NorthWinnipeg South Centre, and Yukon.

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Electors Respond to Motions by 7 Conservative MPs to Dismiss Applications Contesting the Results of the May 2011 Election in Those Ridings.

During the last week of April 2012, Applications were filed with the Federal Court contesting the outcome of the May 2011 Election in seven ridings across Canada on the grounds that there were irregularities, fraud or illegal practices that affected the result of the election.

At 7:40 PM on May 18, the Applicants were served with motions asking the Federal Court to strike these Applications. The motions were brought by Counsel for the 7 successful Conservative Party candidates in those ridings who now sit as MPs.

The motions contend that the Applications should be dismissed because they:

i) Are frivolous, vexatious and an abuse of process; and 
ii) Were not brought within the 30 day time limited stipulated by the Act.

The motions present no credible case that the Applications are frivolous, vexatious or an abuse of process. Rather they attempt to have the court determine the actual merits of the Applications but without regard to the extensive and expert evidence introduced by the Applicants in support of them.

The Conservative MPs contend that the Applications should be dismissed because the Applicants have failed to identify the particular individuals who were deprived of their right to vote by fraudulent phone calls misdirecting them on Election Day. In fact, that evidence is set out in the affidavit of Frank Graves, which was served on the MPs week ago, but which is entirely ignored by their motions.

Mr. Graves, who is the president of EKOS Research Associates is an expert in social research and conducted an extensive survey of electors in the seven ridings. The results of his investigation were that:

i) extensive voter suppression activities were carried out in these ridings, with thousands of electors receiving fraudulent calls in each;

ii) these calls were clearly targeted at Liberal, NDP and Green Party supporters; and

Iii) were successful in suppressing the vote to an extent that affected the results of the election in these ridings.

This MPs’ motions simply ignore this evidence, which is fatal to them.

The argument that the Applications are out time, would have any elector who might receive a dubious call should run to court immediately, or lose his or her right to contest the outcome of the election if facts subsequently come to light that the call was part of organized and successful effort to suppress the vote. The argument would open the floodgate for dirty tricks because perpetrators would only have to cover their tracks for 30 days to secure the result of an election that was fraudulently obtained.

Moreover, the Conservative MPs once again ignore the evidence. This is found in sworn affidavits of the Applicants that they did not suspect that calls misdirecting them on election- day were part of an orchestrated campaign to suppress the vote until late March and early April 2012, when extensive media coverage brought these facts to light. The Applications were filed within 30 days following those disclosures.

The Applicants believe that the MPs’ motions have no merit and should be dismissed with costs. They will be responding formally to the motions, with these and other arguments, according to a schedule to be set by the Court on May 24, 2012.

Steven Shrybman
SACK GOLDBLATT MITCHELL