Arthur Hamilton said the case set out by a lawyer for eight voters who want the 2011 election wins voided in six Conservative ridings has no evidence of a single voter being prevented from voting due to an alleged campaign of misleading and harassing phone calls.
A decision to overturn the election of the six MPs would disenfranchise the more than 220,000 voters who did cast ballots in those ridings, Hamilton said, and risks affecting future elections.
"Counting the votes on election night cannot simply mean knowing who will be the applicants and who will be the respondents," he said, referring to the legal terms for those applying to overturn a result and those responding to a legal challenge.
Hamilton warned against letting a bunch of lawyers start poking and prodding.
Judge Richard Mosley asked whether there was a danger that the person or persons who made the calls would be emboldened to do it again if there is no court process.
Hamilton disputed whether any voter was deterred, arguing the six applicants and the defeated candidates haven't found anyone to come forward.
"There is a fundamental disrespect right now for the intuitiveness of the Canadian voter," Hamilton said.
"They are very careful. They take their franchise seriously."
Validity of court documents questioned
Another lawyer for the Conservative MPs, Ted Frankel, argued that many of the records obtained from Elections Canada shouldn't be allowed as evidence.
The voters have presented provincial court records used to obtain production orders, which are sworn statements by Elections Canada investigators, and emails and complaints released under federal Access to Information and Privacy laws.
Frankel and Hamilton argue those records constitute hearsay and double-hearsay, and shouldn't be admitted.
Even where investigators have sworn affidavits confirming the information in the court records, Frankel said, the people who they interviewed are essentially strangers. The investigators don't know the people they spoke to and Elections Canada has no experience with them.
"That evidence [of people prevented from voting] hasn't materialized in ways we can trust in this proceeding," Frankel said.
The emails from Elections Canada officials show the agency scrambling as they get increasing reports of mysterious calls directing people to the wrong polling stations.
But that isn't enough to establish what happened, Frankel suggested. The applicants would need to bring forward the witnesses to explain what they meant and to be questioned in court.
"The information is not tested to a degree the court can rely on it in these proceedings," he said.
"The applicants have no knowledge of what is described in the ATIPs or [Information to Obtain Production Orders]."
Lawyer wants expert testimony cut
Hamilton was also critical of Ekos Research Associates pollster Frank Graves, an expert witness for the eight voters.
Hamilton alleges Graves is biased in favour of the Liberal Party and against the Conservatives. The only way to deal with an expert's favouritism is to disqualify that expert, he said.
Mosley challenged him, however, asking whether it was a bit of a stretch to say that Graves is biased because he made two donations under $250 to Liberal leadership contenders.
"It's not a stretch that he should have disclosed it to the court," Hamilton said.
Graves says he made a bigger donation to a Conservative candidate. He disclosed the donations to the Liberal Party but says he didn't realize the money went to specific candidates.
Hamilton says a statement Graves tweeted about Norwegian mass shooter Anders Breivik and the far-right shows that he is biased against conservatives around the world. Mosley said the attempt to link the two is "unfair," and to link that incident to Conservatives in Canada is a great leap.
MPs liable, NDP lawyer says
Earlier Thursday, a lawyer for six losing NDP candidates told the court the six MPs are liable for the alleged voter suppression campaign and shouldn't be able to benefit from it.
James Duggan said the MPs unleashed the alleged voter suppression, whether or not they intended to.
Duggan argued the Conservative Party and its candidates had voter databases, engaged a calling centre run by Responsive Marketing Group and had been told by Elections Canada not to contact voters about polling station changes.
The MPs had a responsibility to control their tools and agents, and are therefore responsible through a legal principle called vicarious liability, Duggan said.
Duggan argued the only remedy is to nullify the election result so that disenfranchised voters can express their democratic will by casting ballots. He added he wants the MPs to pay costs in the case.
Thomas Barlow, a lawyer for RMG, told the court that some very serious allegations have been made about the company since news of the alleged phone campaign broke.
"No misleading calls were intentionally or unintentionally made by RMG, knowingly or unknowingly," he said.
There were indeed two scripts, as former employee Annette Desgagne remembers, he said, but that's because the company did two phases of calls for the Conservative Party and the candidates who hired RMG.
The first phase was the voter ID phase, which was followed by a get-out-the-vote phase for the last three days of the election campaign. Barlow says the company only targeted Conservative supporters in those last three days.
And contrary to Desgagne's sworn affidavit that she recalls being told by voters that she was giving out the wrong polling station address, in 14 of the 18 call recordings provided by RMG the polling station address matched with the one the voter had. In another two calls, the voter didn't give the address, and in the remaining two, there's no sign she gave them the wrong address or that they were prevented from voting, Barlow told the court.
And while there were calls in five of the ridings, but no get-out-the-vote calls in Winnipeg South Centre, he added.
Challenge alleges voter suppression
Eight voters have applied to the court to overturn the results in their six ridings, which saw Conservative MPs elected on May 2, 2011. The voters, backed by the Council of Canadians, allege a campaign of misleading and harassing phone calls deterred voters from casting ballots, and that the Conservative Party benefited from the alleged voter suppression tactics.
Steven Shrybman, who represents the eight voters, wrapped up two days of arguments yesterday by imploring Mosley to find there was fraud committed in the ridings when a mysterious person or people arranged the misleading and harassing calls.
Shrybman is trying to prove that Mosley must throw out the results of the election in those six ridings:
- Nipissing-Timiskaming in Ontario.
- Elmwood-Transcona and Winnipeg South Centre in Manitoba.
- Vancouver Island North.
A spokesman for the Conservative Party said the party ran a clean, ethical campaign, and that the case against the MPs is politically motivated.