Scandal du jour!

Robocall scandal allegations unprecedented says former elections boss

By Michelle Zilio
Postmedia News
Tuesday, February 28, 2012

Jean-Pierre Kingsley, Canada's former Chief Electoral Officer, says recent allegations of systematic voter-suppression phone calls are unprecedented in Canada's electoral history. (Photograph by: Bruno Schlumberger)


OTTAWA — Canada's former chief electoral officer says recent allegations of systematic voter-suppression phone calls are unprecedented in the country's electoral history.


"We have never seen anything like this alleged case in terms of this potential organization and impact in terms of numbers," said Jean-Pierre Kingsley, Canada's chief electoral officer from 1990 to 2007.


"People vote twice, people destroy the signs, but this automated means and this use of call centres is the first time the allegations go as far as they are going. They're serious."


Last week's Ottawa Citizen-Postmedia News investigation revealed evidence of fraudulent pre-recorded phone calls made during the May federal election in Guelph through services provided by the Edmonton-based voice-broadcast company RackNine Inc. Further developments in the story suggest that harassing live phone calls were made by callers posing as Liberal candidates in swing ridings. The National Post and the Toronto Star also report that more live phone calls had been made in the Thunder Bay area, with callers phoning on behalf of the Conservative Party to alert voters of purported polling location changes.


Kingsley said the allegations may fall under one section of the Canadian Elections Act — section 482(b), which finds anyone who "induces a person to vote or refrain from voting or to vote or refrain from voting for a particular candidate at an election" guilty of intimidation of the electoral process.


Whether the calls were pre-recorded or live is irrelevant, said Kingsley.


"If someone is representing themselves to be Elections Canada, giving false information, changing the polls, and the purpose is to confuse electors to the extent that you're attempting to discourage them from voting, then that is against the statute, in my view," said Kingsley. "This is not small potatoes because what you are trying to do is interfere with the right of Canadians to vote and that is a constitutional right in Canada."


Regardless of whether they work independently, for a political party, or for a voice-broadcasting company, anyone convicted under s. 482(b) faces, on a summary conviction, a maximum $2,000 fine, or a maximum of one year in prison, or both. On an indictment, individuals found guilty face a maximum of five years in prison, a maximum $5,000 fine, or both.


However, Jack Siegel, a Toronto-based lawyer who practises election and political law, said the chances of an indictment are slim to none, assuming the file even reaches the courts.


"After 25 years of practising law I've seen two or three files hands-on where choice was to be made and every case was summary," said Siegel.


Last November, the Conservative Fund was fined $52,000 by the Elections Act for breaking election laws. Siegel said the fact that the case took the summary route is probably a good indication that, if the allegations of the harassing phone calls went to court, they would follow a similar path. However, he also noted that the direction of the case is decided ultimately by the prosecutor.


While it is impossible at this point for experts to speculate as to who is responsible for the calls, Kingsley said that if live callers were aware they were posing as someone else, both they and the organizers of the call centres could be in deep water.


"The people who were making those calls, if they knew what they were doing, in my view, this could also constitute an infraction to the statute," he said. "If you're hired by somebody to say you're somebody else and you know that, then you're really asking for trouble."


This violation, however, is not found in the Canada Elections Act. Instead, Section 403 of the Criminal Code finds individuals who fraudulently impersonate others "(a) with intent to gain advantage for themselves or another person" or "(c) with intent to cause disadvantage to the person being personated or another person" guilty of identity fraud. On an indictment, the convicted faces up to 10 years in prison.


As the scandal continues to develop, Siegel said the first thing that has to be determined is who arranged the calls — the Conservative Party, the voice-broadcasting companies or a third party.


"As long as there is disclosure . . . it's hard for RackNine or any other company to be unable to say who booked the account. Then it falls to that person to say, 'Yes, I did it or here's who I gave the passwords to record these message. You better ask them'," said Siegel. "It's a matter of following it up the food chain."