Monday, May 12, 2014

Robocon: Why Law Professors will rub their hands with glee over the Commissioner’s Report

Counsellor Shrybman: The Doubter
One thing is for sure: for the next two decades or more, constitutional law professors in every law university in Canada will be rubbing their hands in delight at being able to present to law students the report of a commissioner into electoral fraud, and a point-by-point analysis of the commissioner’s report by a lawyer with experience in electoral fraud cases.

Once can just imagine the glee of the law professors when they ask their students to contrast the methodologies used by a Federal Court, by the Commissioner, and recommended by the practising lawyer, to determine whether there was indeed a widespread attempt to commit electoral fraud through voter suppression during the 2011 federal election in Canada.

No doubt law professors in other Commonwealth countries, and in America, will at the very least add footnotes to their textbooks dealing with the methodology used by the Commissioner in his investigation.

The Shrybman Analysis:

Steven Shrybman, of Sack Goldblatt Mitchell LLP, issued an analysis dated May 6, 2014, of the Summary Investigation Report on Robocalls of the Commissioner of Canada Elections.

The Shrybman Analysis is worth reading in full.

What follows are extracts of portions that particularly struck me.


My conclusion from the Shrybman Analysis is that the conclusions of the Commissioner’s Report are questionable, and that the issue of whether the Robocon affair was a deliberate attempt at voter suppression has not been settled by the Commissioner’s Report.

The Background:

Here is the background, quoted from the Shrybman Analysis:

The following analysis offers a critical assessment of a report issued on April 24, 2014 by the Commissioner of Canada Elections, Mr. Yves Cite (the “Commissioner”), concerning his investigation into voter suppression activity during the 41st General Election in May 2011 (the “Election”).1 I have reviewed the Report, having served as Counsel for several electors (the “Applicants”) who, in March 2012, brought applications to annul the results of the Election in 6 ridings across the country.

Summary of the Conclusions:

And here is his summary of his conclusions:

In my view, the Commissioner failed to properly carry out his mandate. As set out below, I believe the Commissioner adopted a seriously flawed and unnecessarily limited approach to his investigation that caused him to ignore relevant evidence and neglect obvious routes of inquiry.

I am also of the view that he adopted ineffective methods for his investigation. As a result of these failures, the Commissioner was not able to answer the questions that were central to his mandate, namely to determine the extent of, and responsibility for, voter suppression during the Election.

Hat tip to John Klein of Saskboy’s Abandoned Stuff for bringing to our attention the blog posting by Mr. Shrybman containing a link to his full Analysis, and to the article by Glen Mcgregor in the Ottawa Citizen on the same issue.

Faulty Methodology Used?

Mr. Shrybman zeroes in on the methodology used by the Commissioner in his report, and highlights the fact that the Commissioner’s Report does not refer to the findings on a similar issue by the Federal Court:

Notwithstanding the breadth of his mandate and purpose, the Commissioner adopted an exceedingly narrow approach to his investigation, essentially reducing it to an unsuccessful effort to trace the source and verify the content of calls made to 129 of the 1726 individuals who filed formal complaints with Elections Canada alleging that they had been the victims of electoral fraud during the Election. Yet, as discussed below, the Commissioner was aware that electors who filed formal complaints of fraudulent calls represented only a small fraction of those who had actually received those calls. Moreover, there was extensive relevant evidence of voter fraud that the Commissioner chose to ignore.

The Shrybman Analysis also slams the nature of the conclusions drawn by the Commissioner from his investigation, and his apparent ignoring of or discounting of facts and evidence that undermine his conclusion:

Thus, in spite of having narrowly confined his inquiry, the Commissioner draws an aggressive and overly broad conclusion that goes well beyond an acknowledgement that he was simply unable to identify the culprit or culprits behind the voter suppression calls that were widely reported, and found by the Federal Court to have been made during the Election.6

Towards the end of his Report, the Commissioner also dismisses the possibility of a conspiracy to defraud voters during the Election, despite considerable evidence to the contrary. On this key question however, not only did the Commissioner fail to seek out key evidence, but he repeatedly ignored or discounted facts and evidence that undermined his conclusion.

Consistent with these dubious and unfounded conclusions, the Commissioner announced that he would abandon any further investigation into voter fraud during the Election.

The Federal Court findings:

One fact I find very surprising is the absence of any mention in the Commissioner’s Report of the findings of the Federal Court, which determined that electoral fraud had been practised in the 2011 election:

Among the more glaring deficiencies of the Commissioner’s investigation was his failure to consider the substantial body of evidence adduced before the Federal Court in proceedings concerning the very same voter suppression activity he had responsibility to investigate.

Here is the Federal Court finding, from the Shrybman Analysis:

I am satisfied that [it] has been established that misleading calls about the
locations of polling stations were made to electors in ridings across the country,including the subject ridings, and that the purpose of those calls was to suppressthe votes of electors who had indicated their voting preference in response toearlier voter identification calls.14
I find that the threshold to establish that fraud occurred has been met ...15

Shrybman reaches this conclusion in his Analysis:

In sum, notwithstanding the findings of the Federal Court that a widespread and deliberate attempt to suppress the vote of Canadians occurred during the 2011 Election, the Commissioner, having conducted a far more limited inquiry into the matter, ignored that evidence and that decision and came to an entirely contrary conclusion.

What about the CIMS Database?

Amazingly, the Commissioner’s Report does not seem to indicate whether the Commissioner reviewed what to me seems to be a critical part of the whole saga – the possible source of the names, email addresses, and party preferences of the voters contacted by robocalls, as set out in the Conservative Party database:

Remarkably, there is no indication that the Commissioner asked the CPC to produce the record of CIMS database use in the days leading to the Election to determine how often, and by whom, lists of non-CPC supporters were downloaded.

The Commissioner’s apparent failure to pursue the central question to emerge about voter fraud during the Election is entirely unexplained.

One Email was enough?

Here’s another interesting comment in the Shrybman Analysis:

At paragraphs 100 to 102 of his Report, the Commissioner tells us why he discounts complaints of voter suppression calls in ridings other than Guelph. Remarkably, his conclusion appears to be primarily based on a single email from an unnamed CPC official.

Mr. Shrybman’s conclusion is also worth noting:

Having decided to ignore the Federal Court proceedings, and having decided as well not to seek production of the CIMS data base, it is difficult to imagine what could have persuaded the Commissioner that he had reasonable grounds for at least referring a case to the Director of Public Prosecutions.

Validity Testing of the Commissioner’s Methodology by a Supreme Court Justice:

Mr. Shrybman gives short thrift to the external validation of the Commissioner’s methodology by a former justice of the Supreme Court:

Anticipating criticism of his report, the Commissioner took the extraordinary step of asking The Honourable Louise Charron, a former justice of the Supreme Court of Canada, to report on the “quality and thoroughness of the investigation, and on the validity of the conclusions r eached.”42 Ms. Charron’s four-page report is appended to that of the Commissioner. 43 It endorses the essential finding of the Commissioner and finds no fault with his investigation.

Mr. Shrybman has this to say about Ms. Carron’s finding:

Indeed, Ms. Charron’s brief report betrays that lack of experience and knowledge. For example, she concludes her assessment by offering this comment:

… [H]ad there been an effort to purposely mislead electors outside the electoraldistrict of Guelph, one would have anticipated seeing a single predominant calling number, a constellation of calling numbers, or a pattern with multiplecalls into a single electoral district from the same number. There was no such evidence.45
However, as we know from the investigation into the robocalls made in Guelph, the call –back number used to identify the source of a call may be entirely fictitious, and nothing prevents such a number from being altered for every call. For those with experience in the area, it is well known that persons involved in voter fraud use elaborate techniques to avoid detection.

Judging from the many issues raised in Mr. Shrybman’s report, it is doubtful whether Canadians can rest assured that a proper investigation, using people with knowledge of current electoral fraud methods, and considering the serious findings in the Federal Court case, was held.

This should not be the end of this matter.


1 comment :

  1. the salamander hordeMay 12, 2014 1:56 pm

    .. ulp .. 1 year 2 years 5 or 10 .. the Harper legacy will deteriorate proportionately to the obstruction, secrecy, darkness and flailing teaparty ideology it spread from.. it was never about Canada or Canadians, it was always about Stephen Harper & the dull, dim manipulative and corrosive partisan factions that saw profit in backing his omnipotent, anti environmental, anti democracy, anti-Canadian 'play' ..

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