Sabotaging Democracy: 'Robocall' Vote Suppression in Canada's May 2, 2011 Election

Michael Keefer

Version 5, June 2014

Contents

Chapter 1.Introduction3-12

Chapter 2.Harassment: The first wave of telephone fraud in the 2011 election13-24

Chapter 3.Vote-suppression by misinformation: The second wave of telephone fraud25-47

Chapter 4.Questions of context: Conservative Party law-breaking and improprieties before and since 201148-70

Chapter 5.Enforcement issues: the CRTC and Elections Canada71-88

Chapter 6.Enforcement Issues (2): Responsive Marketing Group and Annette Desgagn89-112

Chapter 7.The election campaign in Guelph113-128

Chapter 8.Guelph, the ground zero of election fraud: the Pierre Poutine robocalls129-xx

Chapter 9.Estimating the impact of fraud: Converging lines of analysisxx-xx

Chapter 10.Conclusionxx-xx

Chapter 1.Introduction

Stephen Harpers antipathy for democracy is legendary: shutting down Parliament twice to avoid public accountability, being found in contempt of Parliament twice for refusing to release information to the House of Commons, covering the lies and scandals of his MPs, staff, and advisers, giving his MPs instructions to disrupt parliamentary committees to render them unworkable, violating campaign laws, eliminating funding for a program that allows ordinary Canadians to challenge unjust laws, legislation, and government policies at the Supreme Court level (now only the wealthy and corporations get heard), and equating dissent [] with lack of patriotism and treason.ThinkingManNeil, Dawgs Blawg (3 May 2011)1ThinkingManNeil, comment on John Baglow, Dont mourn, organize, Dawgs Blawg (3 May 2011), http://drdawgsblawg.ca/2011.05/election-2011.shtml#disqus_thread.

The Canadian federal election of 2011, which ran from March 26 until Election Day on May 2, was marked by a nationwide campaign of fraudulent telephone calls. aimed in the first instance at sapping the support of the Liberal Party, which up to that point formed the Official Opposition, and in the second at suppressing election-day turnout among supporters of opposition parties. Most of these calls were automated robocalls, but many of them were placed by live operators in call centres. The fraudulent calls came in two waves. The first, which was reported in the national news media on April 19 but appears to have begun about a week earlier, consisted of harassment calls that were falsely made in the name of the Liberal Party and clearly designed to annoy voters through inappropriate timing and rudeness, and thus to generate anger against that party and fracture its support. Initially reported as being focused in Ontario, these calls occurred across the country. The calls in the second wave, which also occurred in ridings across Canada, sought to suppress the number of votes cast for opposition parties by falsely informing voters, usually in the name of Elections Canada, that the locations of their polling stations had been changed. Twenty-two ridings, fourteen of them in Ontario, were named in the early reports, but it has since become clear from the number of complaints received by Elections Canada that harassment calls must have occurred on a very much larger scale. A second surge of fraudulent calls began several days before the election and climaxed on election day: these calls, which for the most part claimed to come from Elections Canada but in many cases provided call-back numbers to Conservative Party phone lines, informed the recipients of last-minute changes to their polling-station locations and tried to send them either to incorrect polling stations (usually far from their homes) or else to equally inconvenient sites where there were no polling stations at all. Right-wing voices in the media have downplayed the importance of this robocall scandal: Sun Media pundit Michael Coren scoffed at people getting excited over a few silly phone calls, while the Globe and Mail's Margaret Wente found it ridiculous to think there was some massive cheating scheme engineered by higher-ups in our boring little democracy.2Margaret Wente, Robo-calls? Get a grip. We're Canadian, The Globe and Mail (6 March 2012, updated 10 September 2012), http://www.theglobeandmail.com/commentary/robo-calls-get-a-grip-were-canadian/article551567/. Wente and Michael Coren are quoted in an editorial, Waning media interest in robocalls alarming, Vancouver Courier (6 April 2012), http://www.vancourier.com/news/Waning+media+interest+robocalls+alarming/6420497/story.html.

But whether the calls were silly or not, more than a few of them were made. A rough calculation based on the very incomplete records of complaints kept by Elections Canada would suggest that nearly 250,000 fraudulent calls were received by voters, while a more reliable estimate derived from surveys carried out by two leading polling companies points to a total (in round terms) of well over four times that number.3See Chapter 3 for details.

The mid-campaign harassment calls may have contributed to the substantial decline in Liberal Party support during the latter part of the campaign. And two separate studies, employing quite different methodologies, have shown that the end-of-campaign calls produced significant vote-suppression effectssubstantially larger, in some cases, than the margin of victoryin more than thirty ridings from Prince Edward Island to British Columbia.4These studies are discussed in Chapter 9.

In most of the other ridings in which fraudulent end-of-campaign telephone calls were reported, it would appear that the calls were too scattered and infrequent to have altered the outcome. We may, nonetheless, regard as significant the fact that these calls were also part of what Andrew Coyne of the National Post has called fraud on the grand scale and a deliberate and systemic attempt to subvert the democratic process, using resources ordinarily accessible only to a few: namely, the Conservatives' highly prized Constituency Information Management System (CIMS).5Andrew Coyne: Judge finds smoking gun in robocalls scandal but who pulled the trigger? National Post (24 May 2013), http://fullcomment.nationalpost.com/2013/05/24/judge-finds-smoking-gun-in-robocalls-=scandal-but-who-pulled-the-trigger/.

We know which political party benefited from the fraud: converging lines of analysis discussed in Chapter 9 of this study indicate that the Harper government may well owe its present slim majority in the House of Commons to what we can appropriately call a massive cheating scheme. And despite serious inadequacies in the official investigation of the vote suppression fraud, the evidence as to which political party organized it points in just one direction: as we will see in the following chapters, there is strong evidence of Conservative Party involvement in every aspect of the telephone fraudincluding, as Andrew Coyne indicated, deployment of the party's closely guarded central database (CIMS) as a tool for targeting opposition-party supporters. Conservative Party spokesperson Fred DeLorey stated in February 2012 that We made around six million calls during the Election to identify our supporters and get them out to vote; in December 2011 he indicated that over a million of these Conservatives' calls were made on election day.6Quoted by Tonda MacCharles, Conservative scripts misdirected voters in 2011 election, say call centre staff, Toronto Star (27 February 2012), http://www.thestar.com/news/canada/2012/02/27/conservative_scripts_misdirected_voters_in_2011_election_say_call_centre_staff.html.

If the total number of mid-campaign harassment calls and end-of-campaign misinformation calls was of the same order, that would indicate a quite substantial diversion of effort into illegality. Once one engages with the evidence, claims that the fraud could have been organized without the approval of higher-ups begin to seem very silly indeedthough to describe it as engineered might imply a quality of forethought sometimes lacking both in the telephone fraud and in the Conservative Party's attempts at concealment. (Smart people in politics can behave with surprising stupidity: the senatorial careers of Mike Duffy and Pamela Wallinboth of them skilful political operatives as well as experienced media professionalsprovide recent examples of behaviour that a moment's reflection ought to have exposed as injudicious.) Even when it is clumsily conducted, electoral fraud is still fraud. And even when the behaviour of our governing party, both in the fraud itself and in the subsequent cover-up, reveals unprecedented levels of malice and of pettiness, it does not cease to be interesting. Canada is less of a democracy than Margaret Wente imagines; it may also be less boring.

* * *

My concern in this study is with evidence, rather than personalities. But I have begun by quoting, as an epigraph, a partial list of instances of Prime Minister Stephen Harper's antipathy to or contempt for democracy, written in the immediate aftermath of the 2011 election by a blogger dismayed by the result. This can serve as a reminder that the vote-suppression fraud that disfigured that election involves, quite centrally, an issue of responsibility. The patterns of illegality that emerge from the evidence I will be considering are the Prime Minister's responsibility, not just in the loose sense that would result from an application of Harry Truman's principle that the buck stops at the desk of the person with the highest level of authority and power, but also more precisely: Stephen Harper, a well-known micro-manager, has, as Lawrence Martin's 2010 book Harperland: The Politics of Control revealed, both a control fixation and a fondness for authoritarian methods.7Lawrence Martin, Harperland: The Politics of Control (Toronto: Viking Canada, 2010), p. 275. For further analysis of Harper's methods and orientation, see Murray Dobbin, Harper's Hitlist: Power, Process and the Assault on Democracy (Council of Canadians, April 2011, http://www.canadians.org/democracy/index.html); Marci McDonald, The Armageddon Factor: The Rise of Christian Nationalism in Canada (2nd ed., Toronto: Vintage Canada, 2011); and Christian Nadeau, Rogue in Power: Why Stephen Harper is Remaking Canada by Stealth, trans. Bob Chodos et al. (Toronto: Lorimer, 2011).

In 2006, friends in Ottawa working in two different ministries described to me how, shortly after the Harper Conservatives came to power, routine business slowed to a crawl because decisions at all levels were no longer being made in the normal manner by ministry officials, but were instead being cycled through the Prime Minister's Office, where the sheer volume of business being transacted meant that decision-making processes which once took days were sometimes delayed for months. Stephen Harper's micro-managerial stylehis insistence on having his own fingers in every potwas more darkly evident in the scandal over Canadian complicity in the torture of prisoners in Afghanistan. In late 2009, a former senior NATO public affairs official revealed to the Toronto Star just how directly the Prime Minister had involved himself in this issue. In 2007, when it was privately and generally acknowledged in our office that the chances of good treatment at the hands of Afghan security forces were almost zero, Harper and his PMO in Ottawa were overseeing denials of torture to be issued by NATO in Kabul: I was told this was the titanic issue for Prime Minister Harper and that every statement that went out needed to be cleared by him personally []. The lines were, 'We have no evidence' of coercive treatment being used against detainees handed over to the Afghans. [.] [I]t was made clear to us that this was coming from the Prime Minister's Office, which was running the public affairs aspect of Canadian engagement in Afghanistan with a 6,000-mile screwdriver.8Mitch Potter, PMO issued instructions on denying abuse in 07, Toronto Star (22 November 2009), http://www.thestar.com/news/canada/2009/11/22/pmo_issued_instructions_on_denying_abuse_in_07.html.

Who was twisting that screwdriver? According to General Rick Hillier 's 2009 memoir, A Soldier First, Harper's PMO was informed about what was being done to detainees transferred by the Canadian army to Afghan prisons.9General Rick Hillier, A Soldier First: Bullets, Bureaucrats and the Politics of War (Toronto: HarperCollins, 2009); and John Ibbitson, PMO told about Afghan jail conditions, Hillier writes, Globe and Mail (21 October 2009), http://v1.theglobeandmail.com/servlet/story/GAM.20091021.HILLIER21ART2244/TPStory/TPComment. See also Lawyers Against the War, Torture: The Transfers of Afghan Prisoners. Letter to Canadas House of Commons, Centre for Research on Globalization (22 December 2009), http://www.globalresearch.ca/index.php?context=va&aid=16648; this text itemizes the evidence, some of which had been available for years, that Canada's detainee policies violated Canadian and international law. See also my essay Prime Minister Stephen Harper and Canadian War Crimes in Afghanistan, Centre for Research on Globalization (24 April 2011), http://www.globalresearch.ca/index.php?context=va&aid=24473.

In other words, if NATO officials knew full well that the denials being approved by Harper's PMO were false, so also did Stephen Harper himself. But the Prime Minister rejected with indignation any suggestion that Canadian officials could have been implicated, however indirectly, in the torture of Afghan detaineesand prorogued Parliament to shut down the parliamentary committee that was hearing evidence which gave him the lie.10One of the most important sources of that evidence was Richard Colvin, a diplomat who showed exemplary courage and integrity in trying to end Canadian complicity in the torture of Afghan detainees, and then (in the face of smears from senior government spokespersons including Defence Minister Peter MacKay) in telling the truth about what had happened. See Murray Dobbin, Harper's Hitlist, Part 2: Two Prorogations in Less Than a Year; and my essay Prime Minister Stephen Harper and Canadian War Crimes in Afghanistan, parts 2 and 3 (The Canadian Torture Scandal, and Running With the Big Dogs).

Harper has been equally indignant over any suggestion that his Conservative Party could have been implicated in the very widespread telephone-fraud vote suppression that stained and distorted the May 2011 election through which his party achieved a majority in the House of Commons. In late February 2012, he told Parliament that The Conservative party can say absolutely, definitively, it has no role in any of this. Opposition allegations to the contrary were simply a smear campaign without any basis at all.11Quoted by John Ibbitson, Tories lose control of agenda as they try to ride out robo-call storm, Globe and Mail (1 March 2012, updated 10 September 2012), http://www.theglobeandmail.com/news/politics/tories-lose-control-of-agenda-as-they-try-to-ride-out-robo-call-storm/article551357/.

But prime ministerial bluster, unsupported byindeed, contradicted by evidence and factsbrings diminishing returns. Interim Liberal leader Bob Rae proposed, by way of rejoinder, that The Prime Minister and his colleagues have a remarkable ability to turn themselves into victims at the same time as they literally smear thousands of Canadians who are now complaining because they are aware of a pattern.12Tonda MacCharles, Allan Woods, and Bruce Campion-Smith, Robo-calls: Veteran dirty-tricks investigator assigned to robo-calls probe, Toronto Star (1 March 2012), http://www.thestar.com/news/canada/2012/03/01/robocalls_veteran_dirtytricks_investigator_assigned_to_robocalls_probe.html. Ray may have been alluding here to the fact that on February 25, 2012, two days after news reports of Elections Canada's investigation gave renewed prominence to the telephone fraud issue, Harper's parliamentary secretary, Peterborough MP Dean Del Mastro, declared that his campaign and Conservative supporters in his riding had been victimized by fraudulent phone calls. (Evidence to this effect has not been forthcoming.)

Rae offered as well what seems a more adequate assessment than Harper's of the reality: The Prime Minister has created a Nixonian culture. This stuff doesn't happen unless the boss lets it happen. He has allowed to seep into his party [] a culture of attack and, frankly, a culture of deception and dirty tricks, where almost anything goes.13Quoted by Willy Noiles, Robocalls Target Liberals, View Magazine 19.6 (7-13 February 2013), http://www.viewmag.com/14108-Robocalls+Target+Liberals.htm. Prompted, it would seem, by Rae's statement, a Globe and Mail journalist contacted arch-dirty trickster Donald Segretti, a Nixonian operative who was sentenced to six months in prison for his role in Watergate. Segretti condemned the robo-call vote suppression in Canada as worse than what he was jailed for: 'We never tried to do something that would, at the end of the day, take away the right of somebody to vote,' he said. See Rod Mickleburgh, Robo-calls worse than Watergate, dirty tricks op opines, Globe and Mail (1 March 2012, updated 10 September 2012), http://www.theglobeandmail.com/news/british-columbia/rod-mickleburgh/robo-calls-worse-than-watergate-dirty-tricks-op-opines/article2356142/.

Rae's assessment of the culture of the Harper Conservatives would shortly receive confirmation of a sort from a quite unexpected direction. Harper assigned to his parliamentary secretary, Peterborough MP Dean Del Mastro, the lead role in responding to questions in the House of Commons about the unfolding scandal of telephone-fraud vote-suppression. Rising aggressively to the occasion, Del Mastro (as Guardian journalist Colin Horgan observed in March 2012) obfuscated, offering obtuse and often absurd answersmostly ones that suggest it has all been some sort of grand Liberal conspiracy. His favourite line is that the allegations are 'baseless smears'.14Colin Horgan, Conservative party's robocall scandal has Canadians less than impressed, The Guardian (20 March 2012), http://www.guardian.co.uk/commentisfree/cifamerica/2012/mar/20/canada-sonservatice-party-robocall-scandal.

But in June 2012 it emerged that Del Mastro's own campaign in the 2008 election had been marked by multiple layers of illegality and fraud. He was accused, first, by Elections Canada of having violated the Canada Elections Act's spending limits by nearly $18,000. Ironically enough, most of this overspending was incurred by a program of telephone calls: Holinshed Research Group, an Ottawa call centre, had made 25,000 to 30,000 calls into Del Mastro's riding, and billed him for 630 hours of work. The calls were legitimate, but Del Mastro's payment for themwith a $21,000 personal cheque drawn on his own bank accountmeant that he went far beyond the $2,100 contribution limit imposed on candidates. A clumsy attempt to conceal the campaign's overspending involved another more serious illegality: someone in Del Mastro's office forged a memo purporting to show a refund of $10,000 from Holinshed. And it appears, finally, that a significant proportion of Del Mastro's 2008 campaign financing came to him through a kickback scheme, organized through a construction company owned by a cousin of the MP, in which employees of the company, and their friends and relations, were paid $1,050 each, in return for which they made $1,000 donations to Del Mastro's campaign. (Every participant in the scheme thus received $50, plus a $500 tax rebate.)15Details of the 2008 Dean Del Mastro campaign's multiple violations of the law, and of the responses (or rather, non-responses) to these violations by the agencies responsible for enforcement of the relevant laws appear in Chapter 4.

Whatever moral high ground Del Mastro had claimed to be speaking from in defending the Conservative Party against suspicions of illegal and fraudulent telephone campaigning was exposed instead as a sinkhole. And the Prime Minister? Some aspects of the evidence presented here in relation to what is commonly known as the 2011 robocall scandal may come as a surprise to readers. But a disturbing likelihood exists thatalthough Prime Minister Stephen Harper is no doubt well protected by layers of plausible deniability16Plausible deniability, a notion sometimes credited to the CIA under Allen Dulles in the 1950s, involves the creation of deceptive appearances under which false denials by a decision-maker of any responsibility for, complicity in, or knowledge of state actions that are illegal or disgraceful can be made to seem credible.

few of these details would be news to him.

* * *

Let's define, as clearly as possible, what it is we're talking about. Our primary subject is a two-fold eruption of fraud into the 2011 federal election: two waves of fraudulent telephone calls designed, in defiance of legality, to alter the outcome of the election through deception. The first wave consisted of calls, apparently most concentrated in Ontario ridings, but occurring from one end of the country to the other, that were falsely made in the name of the Liberal Party and clearly designed to harass voters through inappropriate timing and rudeness, and thus to generate anger against that party and fracture its support. The calls in the second wave, which also occurred in ridings across Canada, sought to suppress the number of votes cast for opposition parties by falsely informing voters, usually in the name of Elections Canada, that the locations of their polling stations had been changed. It's important from the outset to have some sense of the scale of the fraudthough I will ask you to wait until Chapter 3 for the full details. On the assumption, proposed to Elections Canada investigator Allan Mathews by an IT company CEO who provided him with expert advice, that automated phone calls can be expected to generate a response rate of approximately one percent, Elections Canada's very incomplete complaints records would suggest that nearly 250,000 Canadian voters received fraudulent harassment or misleading polling-location calls. But studies of the misleading poll-change calls by reputable polling companies point to a substantially higher figure. The most reliable such poll (in my opinion) is one by Ekos Research that shows that 2.3 percent of Canadian voterssome 525,000 peoplereceived fraudulent calls of this kind. Combining this result with the fact that nearly 51 percent of the complaints received by Elections Canada had to do with harassment calls, we arrive at a rough estimate of more than a million fraudulent calls in all. Moreover, there is evidence to suggest that these calls were not sent out at random, but that they deliberately targeted opposition-party supporters, using phone lists generated from the Conservative Party's Constituency Information Management System (CIMS). The term robocall scandal, though I've used it above, seems scarcely adequate to describe this pattern of harassment and misinformation. There's nothing improper or illegal about automated phone calls in themselves, and some of the fraudulent calls in both waves were in fact made by live operators. The scandal does indeed involve the misuse of a particular technology, but far more importantly, it reveals a ruthlessly dishonest form of attack politics, coupled with an equally ruthless and dishonest attempt to suppress the opposition vote, thus frustrating voters in the exercise of their most basic democratic right.

* * *

The second and third chapters of this study will outline in some detail the particularities of the two waves of telephone fraud; and the fourth chapter will offer, by way of context, a brief account both of some relevant improprieties in the 2006 and 2008 federal elections, and also of more recent instances of sleazy robocalling which the apparently dilatory and under-resourced Elections Canada investigation of the 2011 election seems to have encouraged the Conservative Party to think it could get away with. My fifth and sixth chapters will consider issues of the enforcement of CRTC regulations and the Canada Elections Act, and will show how the timidity and tardiness of Elections Canada's investigative work led to the irretrievable loss of some important evidence. After an analysis in the seventh chapter of what went wrong with the Conservative campaign in Guelph (an Ontario riding that Harper's strategists had thought was theirs for the taking in 2011, and on which Conservative operatives inflicted the most intense onslaught of fraudulent polling-station-change calls in the country), my eighth chapter will explore the evidence of Conservative Party responsibility for the telephone harassment and vote suppression which has come to light in that same ridingthe only one that was investigated by Elections Canada with any degree of thoroughness. My ninth chapter will explain how converging lines of analysis make possible an assessment of the impact of Conservative vote-suppression telephone fraud on the outcome of the 2011 election, and will lead to the conclusion that the Harper Conservatives' success in attaining majority-government status in the 2011 election may well have been due to their campaigns of telephone harassment and vote suppression. A concluding chapter will offer some reflections on the meaning and implications not just of this fraud, but also of subsequent attempts to cover it up and, through the Conservatives' so-called Fair Elections Act, to institutionalize corrupt electoral practices in Canada. Until the spring of 2014, it remained possible to make excuses of several kinds for the inadequacies of Elections Canada's investigation of the telephone fraud in the 2011 election. There's no doubt that for many people, including senior Elections Canada officials, the reality of what had occurred initially defied belief. There's no doubt that the feebleness of Elections Canada's investigative powers left the agency powerless in the face of delays and non-cooperation on the part of Conservative Party officials whom Elections Canada investigators wished to interview. It's depressingly obvious, moreover, that at certain key moments those investigators failed to appreciate the importance of evidence that had come into their hands, and that at one point, when urgent action was called for to protect key evidence from possible destruction, they failed to take that action. But when in late April 2014 Yves Ct, the Commissioner of Canada Elections, whose responsibility it is to see to the enforcement of the Canada Elections Act, published a report in which he asserted that except in Guelph no fraud had actually occurred, it became obvious that something more questionable than incredulity, investigative impotence, and intermittent incompetence was involved. As will become apparent, some of the assertions contained in Ct's report are counterfactual to a ludicrous degree. But the full dimensions of the farce were made evident during the trial, in early June, of Michael Sona, the Conservative staffer whom party headquarters, seconded by Mr. Ct, had picked out in February 2012 as the sole instigator of the fraud in Guelph. An appropriate counterpoint to a trial in which the prosecution's evidence was, for the most part, of laughable fragility was provided during the spring of 2014 by the ongoing public controversy over Pierre Poilivre's Fair Elections Act, a bill transparently designed to ensure that nothing resembling a fair national election can occur again in this country.

Chapter 2.Harassment: The first wave of telephone fraud in the 2011 election

(i) Harassment callsand the Liberal decline

The first fraudulent intervention in the 2011 election, which was aimed at disaffiliating voters from the Liberal Party, consisted of harassing or nuisance phone calls falsely identifying themselves as coming from the campaigns of Liberal MPs or candidates. These calls deliberately inconvenienced and sometimes also insulted prospective voters. In the Toronto riding of Eglinton-Lawrence, Liberal supporters reported receiving harassment calls from the very beginning of the election campaign in late March;17Stephen Maher and Glen McGregor, At least 14 election ridings blitzed with live calls from fake Liberals, National Post (24 February 2012), http://news.nationalpost.com/2012/02/24/at-least-14-election-ridings-blitzed-with-live-calls-from-fake-liberals/.

elsewhere, calls of this kind appear to have begun shortly before the two televised leadership debates, which were held on April 12 and 13 (in French and English, respectively). These mid-campaign harassment calls became a national news story on April 19, when reports were published by the Toronto Star, CBC News, and Maclean's;18See Kenyon Wallace, Liberals say theyre targets of prank campaign calls, Toronto Star (19 April 2011), http://thestar.com/news/canada/2011/04/19/liberals_say_theyre_targets_of_prank_campaign_calls.html; Dave Seglins and Laura Payton, Elections agency probes harassing calls, CBC News (19 April 2011), http://license.icopyright.net/user/viewFreeUse.act?fuid=MT12MjQ5Mzk%3D; and Liberals complain their voters are being harassed, Macleans.ca (19 April 2011), http://www2.macleans.ca/2011/04/19/liberals-complain-their-voters-are-being-harassed/.

the calls are said to have occurred in at least fourteen Ontario ridings, as well as in Egmont, PEI; St-Boniface, Manitoba; Edmonton-Spruce Grove; Kamloops-North Thompson-Cariboo; and four Vancouver-area ridings.19Maher and McGregor, At least 14 election ridings blitzed; National Post Staff, Measuring the impact of robocalls in the 57 ridings allegedly targeted, National Post (28 February 2012, updated 29 February 2012), http://news.nationalpost.com/2012/02/28/robocall-ridings/; Janyce McGregor, Fraudulent election phone calls raise more questions, CBC News (28 February 2012), http://www.cbc.ca/news/politics/story/2012/02/28/pol-election-calls-tuesday.html; Tamara Baluja and Chris Hannay, Map: Which ridings were hit with robo-call allegations? Globe and Mail (1 March 2012, updated 6 September 2012), http://www.theglobeandmail.com/news/politics/map-which-ridings-were-hit-with-robo-call-allegations/article2355169/?from=2355176. See also Sharon Kirkey, Voters receive bogus phone calls, Victoria Times Colonist (3 May 2011), http://www.timescolonist.com/story-print.html?id=47165894&sponsor=; Stephen Maher and Glen McGregor, 'Robocalls' tried to discourage voters: Caller pretending to be Elections Canada told voters their polling stations had been moved, Vancouver Sun (23 February 2012), http://www2.canada.com/vancouversun/news/archives/story.html?id=111e488f-475b-463f-856e-3a77e87bc3d8; and Project Poutine: Alleged Opposition Harassment Calls, The Sixth Estate (30 November 2012), http://sixthestate.net/?page_id=7209. The Ontario ridings in which harassment calls had been reported by early 2012 included the following: Beaches-East York, Cambridge, Eglinton-Lawrence, Guelph, Haldimand-Norfolk, Kingston and the Islands, London North Centre, Niagara Falls, Northumberland-Quinte West, Oakville, Ottawa-Orleans, Ottawa West, Parkdale-High Park, and St. Paul's.

It has subsequently become clear that harassment calls were made to voters in many more than just these twenty-two ridings. The Summary Investigation Report on Robocalls released by Commissioner of Canada Elections Yves Ct in April 2014 revealed that Elections Canada had received a total of 2,448 complaints from voters in 261 electoral districts; Of these complaints, 1,207 related to calls allegedly providing electors with incorrect poll locations and 1,241 related to alleged nuisance calls.20Commissioner of Canada Elections [Yves Ct], Summary Investigation Report on Robocalls: An Investigation into Complaints of Nuisance Telephone Calls and of Telephone Calls Providing Incorrect Poll Location Information in Electoral Districts Other than Guelph During the 41st General Election of May 2011 (Ottawa: Elections Canada, April 2014), http://www.elections.ca/com/rep/rep2/roboinv_e.pdf, para 28, p. 9.

Given that the overwhelming emphasis of media coverage has been on calls that provided misleading information on supposed changes in polling station locations, the fact that Elections Canada received more complaints about harassment calls may come as a surprise. No less surprising is the fact that the 2,448 complaints came from 1,726 complainantsmeaning that fully 42 percent of those who complained to Elections Canada alleged that they had received fraudulent vote-suppression calls of both kinds. This fact, though it passed without comment in Ct's Summary Investigation Report, is a clear indication of a non-random linkage between the two kinds of vote-suppression callsor, one might equally well say, of targeting. But the most obvious thing revealed by these figures is that the harassment calls must have been much more widely distributed than the early reports suggested. Detailed information has not been published by Elections Canada, but since nearly 51 percent of the total complaints were prompted by harassment calls, it seems evident that unless calls of this kind were concentrated to an unusual degree in some ridings, they must have been reported in most of the ridings in which telephone fraud is alleged to have occurred. In the Eglinton-Lawrence riding, where Liberal MP Joe Volpe was upset by Conservative Joe Oliver, Constituents complained of rude calls at all hours of the night from people claiming to be working for Volpes campaign.21Wallace, Liberals decimated in GTA, Toronto Star.

Likewise in Guelph, where Liberal MP Frank Valeriote fended off a challenge by Conservative Marty Burke, there were complaints that Liberal supporters were being harassed by rude phone callssome in the middle of the nightfrom callers fraudulently representing themselves as Liberals.22Kirkey, Voters receive bogus phone calls, Postmedia News/Victoria Times Colonist.

This wave of calls seems primarily to have been an attack on Liberal campaigns, but the same tactic was also used against the New Democratic Party: in Vancouver Island North, for example, where Conservative John Duncan beat New Democrat Ronna-Rae Leonard by 1,827 votes, one voter complained of being harassed between the hours of 2 a.m. and 5 a.m. by automated phone calls asking her to support the NDP.23Stephen Maher and Glen McGregor, Elections Canada gets phone records in 56 ridings in vote-suppression probe: Court documents first evidence of widespread investigation, Ottawa Citizen (29 November 2012), http://www.ottawacitizen.com/news/Elections+Canada+gets+phone+records+ridings+vote+suppression+probe/7630448/story.html.

Though calls of this kind might be expected to persuade some people that the whole electoral process is too irritating to bother with, their obvious primary purpose was to make Liberal Party campaigners appear inconsiderate, ill-organized, and obnoxious: as Stephen Maher and Glen McGregor reported, The calls seem to have been an attempt to alienate Liberal voters in ridings where the Liberals and Conservatives seemed to be in close contests.24Maher and McGregor, 'Robocalls' tried to discourage voters.

Early news reports of these mid-campaign harassment calls included claims that they were not made at random to households in the ridings where they occurred, but specifically targeted Liberal supporters.25Wallace, Liberals say theyre targets, Toronto Star; Wallace, Liberals decimated in GTA, Toronto Star; Kirkey, Voters receive bogus phone calls, Victoria Times Colonist.

There is reason to suspect that this wave of calls achieved the desired result: the Toronto Star reported on April 19, 2011 that constituents in at least ten ridings were furious at being harassed, as they thought, by mid-campaign phone calls from people working for Liberal candidates.26Wallace, Liberals say theyre targets, Toronto Star.

It seems plausible that anger aroused by the harassment phone calls could have been a factor in the accelerating decline in Liberal support that occurred during the last two weeks of the election campaign. Other factors were of course in playamong them media and public responses to the televised leaders debates, held on April 12 and 13. Only a partisan interpreter would claim that Liberal leader Michael Ignatieff scored a victory in either debate. But neither would it be accurate to claim that he was decisively defeated or humbled.27For an attempt to measure viewer responses to the English-language debate, see Many Canadians Annoyed with English Debate, But Reacted Well to Policy Ideas, Angus Reid Public Opinion (16 April 2011), www.angus-reid.com/wp-content/uploads/2011/04/2011.04.16_Debate_ENG.pdf. This study tracked responses of a sample of 1,074 anglophone Canadians to four short clips from the debate (ranging in length from one and one-half minutes to three and one-half minutes), two of which were one-on-one exchanges. In the first one-on-one clip, Harper edged Ignatieff as the better performer (47% to 40%) and as the more believable leader (45% to 40%); in the other one, Ignatieff and Layton were practically even, with Ignatieff holding a four-point advantage over Layton on performance (44% to 40%) and a virtual tie on believability (Ignatieff 42%, Layton 40%). In the other two clips, which involved interventions by all four party leaders, Layton was scored as winning the first, and Harper the second, with Ignatieff in both cases a distant third. This study is open to methodological critiques in terms of the criteria for selection of clips and an apparent ambiguity in annoyance responses. But the judgment of its authors that Harper and Layton did significantly better overall than Ignatieff would not prevent Liberal supporters from believing that their leader had performed creditably.

Opinion polls indicate on average that for four or five days after the debates, the percentage of Ontario voters supporting the Liberal Party remained approximately where it had been since the start of the campaignin the low to mid 30s. (There had been occasional indications in early April of support rising as high as 37 or 38 percentthough in polls with large margins of error.)28See 2010-11 Provincial & Regional Election Polls: Ontario, Elections (accessed 5 May 2011), http://www.sfu.ca/~aheard/elections/polls-regional.html#ON. The higher results, in polls by Nanos on April 2-4 and April 5-7, both showing Liberal support at 38 percent, and by Decima on April 7-10 and Nanos on April 8-10, both showing their support at 37 percent, all had margins of error of close to 6 percent.

After about a week of the telephone harassment campaign, at the same time as the calls achieved visibility in the national media on April 19, Liberal support in Ontario declined for the first time in the campaign to below 30 percent: polls by Ipsos (April 18-20), Forum (April 20), and Environics (April 18-21) showed it at 27, 28 and 29 percent respectively. A shift of support from the Liberal Party to the NDP became unmistakably evident in an Angus Reid poll of April 22-24, which indicated that the Conservatives were supported by 37 percent, the Liberals by 27 percent, and the NDP by 30 percent of Ontario voters.292010-11 Provincial & Regional Election Polls: Ontario.

A similar pattern can be seen in nation-wide polling. Liberal polling numbers nationwide had been tracking in the upper 20s, sometimes rising above 30 percent (though with occasional pollsfour of them in the four days following the second leaders' debate and the main onset of the harassment phone callsgiving results in the 24-25 percent range).30Public Opinion Polls: National, Canada Election 2011, http://www.electionalmanac.com/canada/polls.php. Four polls immediately after the leaders debates showed Liberal support in this lower range: Forum Research (14 April: 25 percent), Angus Reid (16 April: 25 percent), Environics (17 April, 24 percent), and Ekos Research (17 April: 24.9 percent).

Nanos polls on April 17 and 18 showed Liberal support at 30 percent,31File: ElectionPollingGraphicCanada2011.png, Wikipedia (3 May 2011), http://en.wikipedia.org/wiki/File:ElectionPollingGraphCanada2011.png.

though a trend line based on a combination of opinion polls showed it sinking from about 27.5 percent on April 16 to just over 25 percent on April 18.32File: 2011FederalElectionPolls.png, Wikipedia (1 April 2011), http://en.wikipedia.org/wiki/File:2011FederalElectionPolls.png.

A decline in Liberal support is inescapably evident on April 20, with polls by Nanos, Ekos, and Ipsos Reid giving the Liberals 26.7, 24.7, and 21 percent respectivelyand a Forum Research poll putting them at 23 percent, with the NDP two points ahead at 25 percent. Liberal numbers fell after this point into the low 20s, with dips after April 28 into the high teens. The Liberal Party received 18.9 percent of the vote on election day. When complaints about telephone harassment first became public, Conservative spokesperson Alykhan Velshi insultingly suggested that the Liberals must themselves be to blame:33In response to Liberal politicians' complaints to the media of a dirty tricks campaign, Velshi told the CBC that his party wasn't to blame: 'The only party with access to the Liberal Party membership list is the Liberal Party,' he said. 'Are you certain they aren't making the calls to their members?' Quoted by Maher and McGregor, At least 14 election ridings blitzed, National Post (24 February 2012).

by implication, there was no fraud involved when voters were awakened at 2 a.m. by requests that they support Liberal candidatesjust Liberal Party incompetence. Conservative MP Dean Del Mastro took the same line in parliamentary debate after reports of the Elections Canada investigation gave renewed prominence to the telephone fraud scandal in late February 2012:The Liberals made a lot of calls in the last election and they are the source of all these complaints, Del Mastro said. He said it was up to the Liberals to release their phone call records, not the Conservatives.34Quoted by Allan Woods and Tonda MacCharles, Robo-calls: Elections Canada probing fraudulent calls in Ontario riding of Nipissing-Temiskaming, Toronto Star (6 March 2012), http://www.thestar.com/news/canada/politics/article/1141455--robo-calls-elections-canada-probing-fraudulent-calls-in-ontario-riding-of-nipissing-temiskaming.

Stephen Harper likewise declared in Parliament that it was the Liberal party that made these calls. He claimed as well, since the U.S. provenance of many of the automated calls had become an issue, that in fact, it was the Liberal party that did source its phone calls from the United States.35See Robo-calls could not have come from us, Tories say, but what about Liberals, Toronto Star (1 March 2012), http://www.thestar.com/news/canada/2012/03/01/robocalls_could_not_have_come_from_us_tories_say_but_what_about_liberals.html.

But this allegation was quickly exposed as based on a confusion of two different companies with the same name, one Canadian (which the Liberals had used) and the other American.36See Tonda MacCharles, Allan Woods, and Bruce Campion-Smith, Robo-calls: Veteran dirty-tricks investigator assigned to robo-calls probe, Toronto Star (1 March 2012), http://www.thestar.com/news/canada/2012/03/01/robocalls_veteran_dirtytricks_investigator_assigned_to_robocalls_probe.html.

(ii) Maliceand racism

Harper's, Del Mastro's, and Velshi's taunts appear to be refuted by the fact that the phone calls were malicious not just in their timing, but often in their content as well. The widely attested rudeness of the callers was compounded in some cases by a provocative edge of cultural insensitivity. In the Toronto ridings of Eglinton-Lawrence and St. Paul's, the campaigns of Liberal MPs Joe Volpe and Carolyn Bennett received complaints from Jewish voters who were being pestered by supposedly Liberal calls on the Sabbath (something both Liberal campaigns had been careful to avoid).37Woods and MacCharles, Robo-calls: Elections Canada probing fraudulent calls in Ontario riding of Nipissing-Temiskaming.

In Kingston, Ontario, voters were annoyed by purportedly Liberal solicitations on the morning of Easter Sunday (when Liberal MP Ted Hsu had in fact suspended all campaigning).38Janyce McGregor, Fraudulent election phone calls raise more questions, CBC News (28 February 2012), http://www.cbc.ca/news/politics/story/2012/02/28/pol-election-calls-tuesday.html.

And in Egmont, PEI, where the population is a mix of anglophones and francophones, pseudo-Liberal calls attempted to exploit residual tensions between the two communities by giving a false English pronunciation to the name of Liberal candidate Guy Gallant (who is Acadian), and then asking, in what seems to have been a faked French accent, Do you have intention to vote Guy Gallant?39Ibid. Jason Lietaer, who ran the Conservative war room during the 2011 campaign, dismisses this (and all the other instances of telephone harassment) as typical complaints of those contacted by call centres; he claims, in a homely manner, that Every once in [a] while my wife voices the same complaint to me about political calls and fundraising (Lietaer, 'Who's calling?' 'The Conservatives', Maclean's [28 February 2012], http://www2.macleans.ca/2012/02/28/whos-calling-the-conservatives/#more-242631). For Lietaer's sake, and that of other political strategists who pretend ignorance of the mud they are stirring up, one can spell out the way in which this call attempted to connect with anti-francophone prejudices that are still far from extinct in mixed communities in eastern Canada. The caller was mimicking the behaviour of a francophone canvasser attempting to conceal the francophone identity of his candidate, but giving the game away through his own French-inflected English (which is a word-for-word rendering of Avez-vous l'intention de voter Guy Gallant?). The implicit subtext is: We Frenchies are trying to take over, and if we can sucker you into thinking we're really anglophones, we may succeed. This subtextual message is no less stupid than nasty, but some colleague of Jason Lietaer'sand for all we know, Lietaer himselfmust have thought it would work. (Perhaps it did: Conservative Gail Shea, who won by just 55 votes in 2008, defeated Gallant by a margin of 23.3 percent, winning 54.6 percent of the votes to his 31.3 percent.)

In Oakville, Ontario, where Liberal candidate Max Khan was of South Asian origin, voters received harassment phone calls from someone imitating a Pakistani accent.40Linda Nguyen, Robocalls contributed to Liberals defeat in at least 27 ridings: Bob Rae, National Post (26 February 2012), http://news.nationalpost.com/2012/02/26/robocalls-bob-rae/.

The intended victims interpreted these calls as going beyond rudeness into open racism: according to Khan's campaign manager, Sometimes the calls used a voice deliberately mocking of our candidate, with a fake accent []. They were racist.41Maher and McGregor, At least 14 election ridings blitzed.

A tinge of racism is likewise evident in the live calls to which Liberal MP Glen Pearson attributed his defeat in London North Centre. (These calls acknowledged coming from the Conservative Party, and in that sense belong to a different category than the harassment calls elsewhere, but they reveal a similar malice and contempt for the truth.) Pearson, who has three Sudanese children, has visited Africa with them for a week each yearin January, when the House of Commons is in recess. During the final week of the election campaign, his riding was blanketed with calls which falsely accused him of neglecting his constituents by spending six months of every year in Africa. As a result, Pearson said, In the last week of the campaign there was a decided change in mood at the many doors the volunteers and I visited.42Baluja and Hannay, Map: Which ridings were hit; and Maher and McGregor, At least 14 election ridings blitzed.

In other cases, the malice of the harassment calls found expression in a level of fraud that gave a further twist to the usual misrepresentations: for example, in Niagara Falls, Ontario, Craig Brockwell, the campaign manager of Liberal candidate Bev Hodgson, received reports that Hodgson was being impersonated in rude calls made after 9 p.m.;43National Post Staff, Measuring the impact of robocalls in the 57 ridings allegedly targeted.

and in Haldimand-Norfolk, where former Liberal MP Bob Speller was challenging Conservative Diane Finley, fake Liberal calls were waking people up, according to [Liberal] campaign manager Ian Malowith a recording of Bob Spellers own voice spliced into the offending automated calls.44Maher and McGregor, At least 14 election ridings blitzed; and Seglins and Payton, Elections agency probes, CBC News. There is no reason to doubt Speller's statement that he and his campaign had no part in the making or dissemination of the messages.

(iii) Evidence in Guelph of Conservative involvement

In the riding of Guelph, evidence suggests that the same person or persons who organized the most intense campaign of fraudulent polling station location-change calls in the country were also responsible for the harassment calls that had already occurred in that riding. By late November 2011, the work of Elections Canada investigator Allan Mathews had led to the recognition that the prepaid Virgin Mobile burner cellphone whose number (450-760-7746) had shown up as the originating number on the call display of recipients of the misleading polling-station-change calls in Guelph had been used to contact RackNine, an Edmonton voice broadcasting company that had had been under contract with the Conservative Party during the 2011 election to provide its services to that party exclusively. Although the official return submitted to Elections Canada by the Marty Burke Conservative campaign in Guelph did not list RackNine as an expense, and contained no invoice or other record relating to RackNine, telephone records revealed that one of the Burke campaign's three telephones had been used on May 2, election day, to place two calls to RackNine, one of them to the personal number of Matt Meier, the company's CEO.45See Allan Mathews, Information to Obtain a Production Order [December 12, 2011], paras. 107-109.

Suspecting that the fraudulent automated calls which had created an uproar in Guelph on the morning of election day could have been sent out by RackNine on instructions from the burner cellphone, that the calls emanating from RackNine showed the spoofed number of the cellphone on recipients' call displays, and that the owner of that cellphone had some connection to the Marty Burke campaignall of which turned out to be the caseMathews obtained from a judge a Production Order dated November 23, 2011, for RackNine records relating to the Marty Burke campaign and to calls to Guelph on May 2, 2011.46Ibid., para. 114.

Matt Meier was immediately able to locate a digital copy of the voice message that was the subject of elector complaints to Elections Canada and which was transmitted to phone numbers in Guelph as though coming from 450-760-7746 on May 2, 2011, and Mathews verified that this was the same message that had been received by Guelph voters, and recorded by some complainants. Meier also provided Mathews with a second message that the same client (#93 in RackNine's records) had uploaded but had decided at the last moment on May 2 not to use and had deletedan action that, as Meier explained, did not erase the data but simply concealed it within the company's records. This second message, Mathews wrote, had the appearance of being in support of the Frank Valeriote (Liberal Party) campaign in Guelph. The voice sounded to me as though computer generated rather than a script read by a person.47Ibid., paras. 116-117.

RackNine's records also showed that this client had set up three caller ID phone numbers which the client could choose to have appear on call recipients' call displays [...] once a call was transmitted. One of these was the burner phone's number (450-760-7746); a second was the fake and out-of-service number (800-434-4456) that was supplied in the fraudulent poll-moving calls as an Elections Canada number; the third was the Frank Valeriote campaign office public number used during the 41st election campaign.48Ibid., para 124.

Mathews wrote that I do not presently know the significance of this number being set by client id #93.49Ibid.

But in view of the fact that Guelph was one of the ridings in which Liberal Party supporters had been harassed by rude, ill-timed, or otherwise obnoxious calls that purported to come from the local Liberal campaign, it is blindingly obvious that in November 2011 Mathews had stumbled upon evidence pointing to client #93's involvement in this telephone harassment fraud. What else could be indicated by the preparation of a deliberately clumsy and artificial-sounding message, together with an arrangement that would make it possible to have the Valeriote campaign's telephone number appear on the call displays of its recipients? As Mathews subsequently discovered, RackNine did some legitimate business for the Marty Burke campaign during the 2011 election (sending out notices for campaign events and the like); this work was effectively subcontracted through the campaign's Deputy Manager, Andrew Prescott. But how many other automated messages did RackNine send into Guelph prior to May 2, 2011? Did some of these messages consist of clumsy professedly pro-Valeriote recordings? Were they sent out at night, carrying the spoofed telephone number of the Valeriote campaign? And would the list of people to whom they were sent turn out to be Liberal Party supporters?Information of this kind, by Meier's own account, was retained in his company's records. But we do not have answers to these questions, for the very simple reason that Allan Mathews did not think to pose them. His Production Order asked for records relating to the Marty Burke campaign and to election-day calls to Guelphbut this wouldn't cover any prior contacts RackNine may have had with other Guelph clients who didn't advertise themselves as Burke operatives, or any mid-campaign calls for which these clients may have been responsible. Seek, and ye shall find, the proverb says. Don't seek, and you won't. As a later chapter will make clear, RackNine's client #93 was indeed a Conservative Party operative. Moreover, circumstantial evidence points to the Harper Conservatives' responsibility for the telephone harassment campaign in its entirety. Under Stephen Harper's leadership, the Conservative Party has relied at every turn on below-the-belt attack politics. And as will be seen in Chapter 4, the Conservatives showed open contempt for the laws governing election campaigns in the federal elections of 2006 and 2008; they made use of fraudulent robocalls in the 2008 election; and since the 2011 election, they have repeatedly deployed deceptive robocalls. More importantly, they are demonstrably the perpetrators of the campaign of telephone-fraud vote suppression that immediately followed the telephone harassment campaign in the 2011 electionand as we saw in the opening paragraphs of this chapter, a linkage between the two campaigns is indicated by the fact that fully 42 percent of the people whose complaints were recorded by Elections Canada claimed to have received fraudulent calls of both kinds.

(iv) Scaleand impact?

The complaints data retained by Elections Canada would suggest that the nationwide harassment campaign was conducted, with widely varying degrees of intensity, in most of the electoral districts in Canada. Unlike the polling-station misinformation calls, which began three days before the election and rose to a crescendo on the morning of election day, May 2, the harassment calls were conducted over much longer periods. Although they have received much less media attention than the end-of-election-campaign misinformation fraud, the complaints made to Elections Canada indicate, as noted above, that the two campaigns were of the same order of magnitude: 51 percent of the complaints of which Elections Canada kept records were prompted by harassment calls, and the other 49 percent by polling-change misinformation calls.50Commissioner of Canada Elections [Yves Ct], Summary Investigation Report on Robocalls, paragraph 28, p. 9. Earlier figures released by Elections Canada indicated that 45 percent of the fraudulent calls were harassment calls, and 55 percent were misleading polling-station-location calls; see Bruce Campion-Smith and Les Whittington, Elections Canada reveals massive robo-calls probe of 2011 election, Toronto Star (30 November 2012), http://www.thestar.com/news/canada/2012/11/30/elections_canada_reveals_massive_robocalls_probe_of_2011_election.html.

As for the impact: it is suggestive that Liberal support both in Ontario and nationally remained much where it had been beforein the low to mid 30suntil four or five days after the two leadership debates, and only began its clear downward slide at about the same time that the telephone harassment campaign had gained sufficient traction to be reported in the national media. Yet in a situation in which multiple factors are in play, the temporal correlation between the wave of harassment phone calls and the decline in Liberal support cannot support any definite or quantitative conclusions. The timing of the harassment phone calls was in this sense astute: any claim that they were sabotaging the Liberal campaign could be countered with sneers that Ignatieff's performance in the debates was the real cause of the party's declining support. The strange passivity of the Liberal leadership in the face of unrelenting Conservative attack ads and smears may also have contributed to the decline: some of the mud slung at Michael Ignatieff failed to adhere,51One notorious example (which was a partial failure) was the attempt of the Conservative Party, in collaboration with Sun Media, to smear Ignatieff as having been centrally involved in Pentagon and U.S. State Department pre-invasion planning prior to the 2003 U.S. attack on Iraq. Patrick Muttart, Stephen Harper's deputy chief of staff, provided Sun Media with a photograph that purported to show Ignatieff posing with a group of American soldiersall of the men in battledress, holding automatic weapons, and wearing Santa Claus hats (which would date the image to December 2002)together with an attached report that tried to make a case for Ignatieff's importance in U.S. war planning. The report was used by Brian Lilley in a smear article, Ignatieff linked to Iraq war planning, Toronto Sun (20 April 2011), http://www.torontosun.com/2011/04/20/ignatieff-linked-to-war-planning&overridetemplate=SUN_BLOCK_QuickRead, which received a same-day refutation by Glen McGregor, Debunking Ignatieff's Iraq 'invasion planning', Talking Points: Ottawa Citizen's 2011 federal election notebook (20 April 2011), http://talkpos.wordpress.com/2011/04/20/debunking-ignatieffs-iraq-invasion-planning/. But Sun Media identified the photograph as inauthentic, and Sun CEO Pierre Karl Peladeau denounced it as an attempt to damage his company as well as Ignatieff (All's not fair in war: Planted info on Ignatieff 'should concern all Canadians' says Sun CEO, Canoe.ca [27 April 2011], http://cnews.canoe.ca/CNEWS/Canada/2011/04/27/18071406.html). Muttart was immediately forced to resign; see Kady O'Malley, UPDATED: DirtyTrickWatch: Did Conservative campaign really try to plant bogus Ignatieff photos with QMI? Inside Politics Blog (27 April 2011), http://www.cbc.ca/news/politics/inside-politics-blog/2011/04/dirtytrickwatch-did-the-conservative-campaign-really-try-to-plant-bogus-ignatieff-photos-with-qmi.html; Jane Taber, Whiz kid Patrick Muttart leaves Tory campaign after fake Ignatieff photo flap, The Globe and Mail (27 April 2011), http://www.theglobeandmail.com/news/politics/ottawa-notebook/whiz-kid-patrick-muttart-leaves-tory-campaign-after-fake-ignatieff-photo-flap/article2000591/?from=sec368; and Parsing the Lies in the Muttart Scandal, The Sixth Estate (27 April 2011), http://sixthestate.net/?p=1578.

but enough of it did to give voters a sense of someone less in command of events than Stephen Harper. Nor can one discount the strong debating skills and effective campaigning of NDP leader Jack Layton as a significant factor in the shift of voters' support from the Liberal Party to the NDP. Nonetheless, it remains clear that the telephone harassment campaign was one of several factors in the Liberals' declineand not necessarily the least of them. Whatever the precise interplay of causes may have been, the Liberal ship very visibly took on water during the last two weeks of the campaign, and on election day came close to going down with all hands. One may want to ask whether the appropriate comparison would be to the Titanic or the Lusitania: to what extent was the disaster due to poor judgment on the part of people at the helm,52A number of Liberal misjudgments are discussed by Paul Wells, The untold story of the 2011 election: Introduction and Chapter 1. Behind the scenes of an epic campaign that turned Canadian politics on its head and finally gave Harper his majority, Maclean's (4 May 2011), http://www2.macleans.ca/2011/05/04/politics-turned-over/#C1.

and to what extent to the impact of torpedoes hitting below the water-line?53By way of reminder: the RMS Titanic sank on April 15, 1912 after striking an iceberg just south of the Grand Banks of Newfoundland; the RMS Lusitania was sunk by the German submarine U20 in the Irish Channel on May 7, 1915.

The 'torpedoes', in this case, were upwards of half-a-million fraudulent telephone calls.

Chapter 3.Vote-suppression by misinformation: the second wave of telephone fraud

The second, much more widely reported wave of phone calls began on April 29, a Friday, continued with increased intensity over the following weekend, and climaxed on May 2, 2011, election day. The intention of these calls was straightforward: to obstruct would-be voters in the exercise of their most fundamental democratic right by informing them that the location of their polling stations had been changed, and to suppress the election day turn-out of opposition-party supporters by sending them on wild goose chases after distant polling stations that they would discover, on arrival, either did not exist or could not accommodate them.

(i) Conservative responsibility: the Elections Canada emails

The early calls seem with surprising frequency to have identified themselves, either directly or through Call Display, as coming from campaign offices of the Conservative Party.54See Greg Layson, Voters receive hoax calls about changes to polling stations, Guelph Mercury (2 May 2011), http://www.guelphmercury.com/news/story/2767523-voters-receive-hoax-calls-about-changes-to-polling-stations/; Ashley Csanady, MP Albrecht pledges investigation after 'crank' election calls traced to Tory office, Kitchener-Waterloo Record (20 December 2011), http://www.therecord.com/news/local/article641986--crank-calls-remain-a-fixture-on-political-scene; Tonda MacCharles, Conservative scripts misdirected voters in 2011 election, say call centre staff, Toronto Star (27 February 2012), http://www.thestar.com/news/canada/2012/02/27/conservative_scripts_misdirected_voters_in_2011_election_say_call_centre_staff.html; Glen McGregor and Stephen Maher, Emails show Elections Canada raised voter suppression concerns before election, Ottawa Citizen (16 November 2012) http://www.ottawacitizen.com/news/Emails+show+Elections+Canada+raised+voter+suppression+concerns+before+election/7562009/story.html; Laura Payton, Complaints about Tory calls began 3 days before polls opened, CBC News (19 November 2012), http://www.cbc.ca/news/politics/story/2012/11/19/pol-elections-canada-emails-show-complaints-robocalls.html; and the sources listed in the following note.

The email correspondence of Elections Canada officials, released under the Access to Information Act in November 2012, shows that the agency was aware both of the emerging pattern of misdirection fraud, and also of evidence indicating the Conservative Party as the source of the fraudulent calls. At 8:16 p.m. on April 29, Sylvie Jacmain, Elections Canada's director of field programs and services, wrote to agency lawyer Ageliki Apostolakos that in the ridings of St-Boniface, Manitoba, and Kitchener-Conestoga, Ontario, it seems representatives of Mr. Harper's campaign communicated with voters to inform them that their polling station had changed, and the directions offered to one would lead her more than an hour and a half from her real voting place, which is found a few minutes from her home. Apostolakos quickly passed on this information to the Conservative Party's lawyer, Arthur Hamilton.55Glen McGregor and Stephen Maher, Emails show Elections Canada raised voter suppression concerns before election, Ottawa Citizen (16 November 2012); see also Robocalls Complaints Came 3 Days Before 2011 Election, CBC News (19 November 2012), available at Huffington Post, www.huffingtonpost.ca/2012/11/19/robocalls-complaints-2011-election_n_2161610.html.

The message put Hamilton in a delicate position. Prior to the election, as Postmedia journalists Stephen Maher and Glen McGregor have reported, Elections Canada had asked the parties not to communicate information about polling station locations to voters;56Stephen Maher and Glen McGregor, Elections Canada gets phone records in 56 ridings in vote-suppression probe, Ottawa Citizen (29 November 2012), http://www.ottawacitizen.com/news/Elections+Canada+gets+phone+records+ridings+vote+suppression+probe/7630448/story.html. Details are provided in Preventing Deceptive Communications with Electors: Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election (Ottawa: Elections Canada, 26 March 2013), www.elections.ca/res/rep/off/comm/comm_e.pdf, p. 18, n. 22: In April 2011, following a request from a party, Elections Canada sent a dataset of all polling sites to be used for the 41st general election to all political parties. The message covering the dataset indicated that polling locations may change. As a result, it asked parties to ensure that users of the dataset respect the following restrictions: that the dataset be used for internal purposes only; that it not be used to inform voters of their voting location, via mail-outs or other forms of communications; and that it not be shared with any other organization. Elsewhere in this document, when Marc Mayrand refers coyly to a party, he means the Conservative Party.

and now the agency's officials were declaring that Hamilton's party was communicating misinformation on the subject. His response was to stonewall: Hamilton held off replying until twenty-seven hours later, very early in the morning of May 1, and then claimed that Conservative candidates were contacting voters only to ensure that they went to the right polling places: The calls being made by our candidates request the voter to confirm his or her polling location []. There is no indication by the caller that the location may have changed or words to that effect. And no voter is being directed to a polling location one and a half hours away from the correct polling location.57McGregor and Maher, Emails show Elections Canada raised voter suppression concerns.

On the afternoon of May 1, election officer Anita Hawdur wrote to inform Apostolakos that The polling station numbers given out by the Conservative Party [] are all wrong. Most of them are quite far away from the elector's home and from the initial polling place that showed on their VIC [voter information card]. Shortly afterwards, Hawdur sent a second message to Apostolakos warning that, in one riding, officials received four calls from voters saying they had been misdirected. 'This is getting pretty suspicious,' she wrote. 'The workers in the returning office think these people are running a scam.' And at 3:32 p.m. she reported that we are starting to get more calls now.58Stephen Maher and Glen McGregor, Elections Canada email trail points to growing suspicions over voter suppression 'mischief' during 2011 election, Postmedia News (16 November 2012), http://o.canada.com/2012/11/16/elections-canada-email-trail-points-to-growing-suspicions-over-voter-suppression-mischief-during-2011-election/.

Also on the afternoon of May 1, Elections Canada lawyer Michle Ren de Cotret wrote to Jane Dunlop, the manager of external relations, to inform her of some mischief purportedly done by representatives of the Conservative party calling people to tell them that the location of their polling site has been moved.59Ibid.

And Elections Canada lawyer Karen McNeil sent a second message to Arthur Hamilton, informing him that misleading poll-moving calls had by now been reported from the ridings of Avalon (Newfoundland and Labrador); Cardigan (Prince Edward Island); West Nova (Nova Scotia); Ajax-Pickering, Halton, Kingston and the Islands, Kitchener-Conestoga, and Vaughan (Ontario); and Kildonan-St.Paul, St-Boniface, and Winnipeg Centre (Manitoba). She provided him with a list of the originating phone numbers that some complainants had recorded, and noted that voters who called these numbers back heard messages identifying the lines as used by the Conservative Party.60Ibid., and McGregor and Maher, Emails show Elections Canada raised voter suppression concerns.

Hamilton delayed replying until 10:45 a.m. on the next day, May 2and then with a short message saying only that he would forward to McNeil the same unhelpful statement he had already sent to Apostolakos. By this time, the campaign of vote-suppression calls had become very much more intense, causing widespread disruption, according to election-day reports.61See notes 89 and 90 below.

And in Guelph, as Glen McGregor and Stephen Maher have observed, large numbers of voters, victims of a deceptive robocall, were heading to vote at the Quebec Street Mall62McGregor and Maher, Emails show Elections Canada raised voter suppression concerns.

where they would learn they had been duped. There was indeed a polling station there, but it was in no way equipped to handle a large influx of people who were supposed to be voting elsewhere. One segment of the anxious correspondence among Elections Canada officials was made public before November 2012: as Stephen Maher and Glen McGregor wrote on February 22, 2012, at 11:06 a.m. on election day, Anita Hawdur sent an e-mail to legal counsel Karen McNeil with the header: URGENT Conservative campaign office communication with electors. Hawdur reported that returning officers were calling to ask about the calls. McNeil responded by asking Hawdur to alert Ronnie Moldar, the deputy chief electoral officer. He later e-mailed Michael Roussel, a senior director: This one is far more serious. They have actually disrupted the voting process.63Stephen Maher and Glen McGregor, Firm with Tory links traced to election day 'robocalls' that tried to discourage voters, National Post (22 February 2012, updated 7 March 2012), http://news.nationalpost.com/2012/02/22/racknine-inc-fraudulent-election-calls-traced/.

Several days after revealing, in mid-November 2012, the intense concerns expressed in Elections Canada correspondence during the days from April 29 to May 2, 2011, Maher and McGregor checked websites such as 1-800-NOTES and whocallsme, which track the source of annoying telemarketing calls, and discovered that voters had used these sites to complain about Conservative calls from the same numbers cited in a flurry of frantic emails at Elections Canada in the last three days of the campaign. The posters whom they quote show a lucid understanding of what was happening. One of them, 'LoriB', reported receiving a call from 902-800-1015: They told me the location where I vote on Monday has changed. I called Elections Canada and was told the location has not changed and I was not the first call they had today asking the same thing.64Stephen Maher and Glen McGregor, Web postings show voters complained of 'scam' calls during 2011 federal election, National Post (20 November 2012), http://news.nationalpost.com/2012/11/20/web-postings-show-voters-complained-of-scam-calls-during-2011-federal-election/. The 902 area code covers Nova Scotia. One might suppose from this that 'LoriB' lives in Atlantic Canada. But if the call she received was organized in the same manner as the Guelph robocalls, the apparent originating number would have been spoofed, and would track back to an untraceable Virgin Mobile burner phone which might have been registered with a Nove Scotia area code, but could have been purchased and activated anywhere in Canada, while the actual originator of the call would have been a voice broadcasting company like RackNine.

Another poster, 'Carlie', wrote that she received a call from from Conservative MP Peter Braid's Kitchener-Waterloo campaign telling her that polling stations had been moved: Of course, there are no 'last-minute' changes to voting locations, she wrote. This is clearly a prank, if not an illegal ploy by Conservatives to confuse voters they have identified as not voting for them in an attempt to misdirect them on May 2.65Ibid.

In the same article, Maher and McGregor report on their attempt to follow up an intriguing loose end in the Elections Canada emails. One of the sources for the first message quoted above, in which Sylvie Jacmain informed Ageliki Apostolakos about calls from representatives of M. Harper's campaign to voters in St-Boniface and Kitchener-Conestoga, was an email from Elections Canada official Sylvain Lortie to Jacmain informing her of misdirection calls in St-Boniface made by people identifying themselves as calling on behalf of the Conservatives. Maher and McGregor write that In another email, Lortie indicated that the calls had allegedly been stopped by Conservative party headquarters 'at the request of the local association.'66Ibid.

But their inquiry into this interesting claim ran into a brick wall:[...] John Tropak, campaign manager for Shelly Glover, the Conservative MP for Saint Boniface, declined to say who the campaign contacted in Ottawa to ask the party to stop the bad calls. I have no idea what you're talking about, he said repeatedly. I get it but I don't have any knowledge about anything like that whatsoever.67Ibid.

One feature of these misinformation calls that may seem, on reflection, distinctly odd is the frequency with which the pre-election day calls, and some election-day calls as well, identified themselves as coming from the Conservative Party. News reports of the fraud published on May 2, 2011 typically described automated misinformation calls which ended by offering voters a 1-800 number to call (an out-of-service number, needless to say) if they had any questions about the change in venue of their polling station.68See, for example, Elections Canada warns voters over false phone calls, CBC News (2 May 2011), http://www.cbc.ca/news/politics/canadavotes2011/story/2011/05/02/cv-election-polling-pranks-411.html.

I remember being astonished on May 2 by a report from Guelph of a variant version of the misinformation call, coming from a live operator, who if asked for a phone number offers the number for the campaign office of [Guelph] Conservative candidate Marty Burke. This same report recounted the experience of a Guelph resident who had received a live misinformation call on May 1, and when he called the local number the operator had given him, was greeted with a recorded message from 'the Conservative Party of Canada' and asked to leave a message.69Layson, Voters receive hoax calls about changes to polling stations.

It seemed incomprehensible to me that people responsible for a fraud would so naively identify themselves: I wondered whether disgruntled phone-bank operators were perhaps deliberately exposing the identity of their employersor indeed whether some other organization could have been responsible for the fraud and was cynically blaming it on the Conservatives. In some instances, it appears that party identification was omitted from vote-suppression calls. Annette Desgagn, who worked as an operator for Responsive Marketing Group's call centre in Thunder Bay, testified to a federal court that the script for what she believed to be vote-suppression calls she was ordered to make did not include any mention of the Conservative Party, at whose behest the calls were made.70See Chapter 8, section (iii).

But the Elections Canada emails show that a pattern in which fraudulent calls included tell-tale indications of their provenance was widespread. This can perhaps be accounted for if one remembers that in the final days of the campaign the constituency workers of all parties and the voice-broadcasting companies they used were very busily engaged in get-out-the-vote activities, attempting to mobilize supporters by means that included both live and automated telephone calls. It seems plausible that in the absence of clear instructions to the contrary, Conservative operatives who were handling the segue from get-out-the-vote to vote-suppression calls may in many cases have neglected to remove from their scripts the party identification that is a central part of get-out-the-vote calls.

(ii) Conservative responsibility: the targeting of opposition voters

More striking than the unhelpfulnesseven, one might say, the insolenceof Conservative Party lawyer Arthur Hamilton's replies to the messages he received from Elections Canada lawyers Ageliki Apostolakos and Karen McNeil are the key facts that emerge from these exchanges: (1) From the day that the campaign of fraudulent polling-change misdirection calls began, Elections Canada had evidence pointing to Conservative Party responsibility for these calls. Elections Canada lawyers shared this information with the Conservative Party's lawyer Arthur Hamilton on April 29 and on May 1by which time it included a substantial list of ridings in which the fraud was occurring, a list of originating phone numbers recorded by complainants, and a statement that messages on these lines linked them to the Conservative Party.

Hamilton responded by simply rejecting the information provided to him by Elections Canada; but his assertion that phone calls from Conservative sources contained no indication [] that the [polling] location may have changed was flatly contradicted by the evidence shared with him by Elections Canada lawyers.

Other Conservative Party spokespersons have subsequently deviated from Hamilton's line to the degree of acknowledging that some calls involved telling votersConservative supporters only, of coursethat their polling station location could have been changed. In late February 2012, party lawyer Fred DeLorey stated that Elections Canada changed some poll locations during the election, which is their prerogative. Our job is to get votes out and wrong locations hurt us, so to ensure our supporters knew where to go, we would ask them if they knew where their poll was. When they told us their poll was in a different location than was in our system, we would tell them that Elections Canada may have changed it, and give what we thought was the right address.71Quoted by Tonda MacCharles, Conservative scripts misdirected voters in 2011 election, say call centre staff, Toronto Star (27 February 2012), http://www.thestar.com/news/canada/conservative_scripts_misdirected_voters_in_2011_election_say_call_centre_staff.html.

And in November 2012, DeLorey stated that To ensure our supporters knew where to vote, our script read that Elections Canada has changed some voting locations at the last moment. To be sure could you tell me the address of where you're voting? Asserting that the Conservatives were innocently responding to a problem caused by Elections Canada having changed over 1,000 polls locations [around] the country, he said that In the days leading up to and including Election Day we were only calling our identified supporters to get out the vote, and in every call we identified ourselves as calling on behalf of the Conservative Party, so any accusation that we were misleading voters doesn't hold up to those simple facts.72Quoted by McGregor and Maher, Emails show Elections Canada raised voter suppression concerns before election.

But DeLorey's statement about the number of polling locations changed by Elections Canada is incorrect, and his assertions that the Conservative Party made sure it was identified as the source of every call made on its behalf and called only its own supporters are false. Chief Electoral Officer Marc Mayrand testified to a parliamentary committee in March 2012 that it had been necessary to change 473 of Canada's more than 20,000 polling station locations during the 2011 election; voters assigned to 412 of these locations received new voter cards by mail well in advance of election day.73Maher and McGregor, Elections Canada email trail points to growing suspicions.

In the cases of the 61 polling stations whose locations had to be altered within a week of the election, when it was too late to mail out revised voter cards, Elections Canada's policy was to announce the new locations in the local media, and to station personnel at the original locations on May 2 to redirect any voters still unaware of the changes.74See Payton, Complaints about Tory calls began 3 days before polls opened.

The claim that calls were identified as coming from the Conservative Party seems indeed to have been true of most of the misleading pre-election day calls, and of some of those that went out on May 2. But the vast majority of the election day callsincluding robocalls in Guelph and nearby ridings whose Conservative provenance has been definitively establishedwere misleading both in their content and in their pretended source. These calls, purportedly coming from Elections Canada, informed citizens, often in both official languages, that due to an unexpectedly high voter turnout their polling station had been changed; and the false addresses that voters were given in these calls were typically far away from the polling stations marked on their voters cards.75For a sampling of calls of this kind described to Elections Canada officials by complainants from Alberta and British Columbia (the majority robocalls, but some live calls), see Project Poutine: 'Elections Canada' Misdirects Voters, The Sixth Estate (30 November 2012), http://sixthestate.net/?page_id=7208.

A shift from calls acknowledging their Conservative provenance to calls which deceptively pretended to come from Elections Canada is reflected in the Elections Canada emails. On April 29 and 30 the offending calls seemed all to come from Conservative sources. But at 5:10 p.m. on May 1, Natalie Babin Dufresne emailed officials who were organizing advertising in Prince George-Peace River to counter the effects on voters of alleged Conservative and Elections Canada calls. On the next morning, May 2, Anita Hawdur emailed a number of colleagues to say that It's right across the country except Saskatchewan; a lot of the calls are from electoral districts in Ontario. It appears it's getting worse. Some returning officers reported that the calls are allegedly identifying Elections Canada.76Maher and McGregor, Elections Canada email trail points to growing suspicions.

Most of the fake Elections Canada calls were automated, but in some cases they were quickly followed by live calls. In Windsor-Tecumseh, for example, NDP volunteer Andrew McAvoy received two calls in sequence, both purportedly from the number (450-760-7746) associated with the 'Pierre Poutine' robocalls: The first to his home phone was a recorded message telling him his polling location had changed. Within minutes, he received a call on his cellphone from a man claiming to be from Elections Canada. McAvoy pressed the male for his name. The caller claimed he was not permitted to give his name but that his Elections Canada identification number was '1124,' [Elections Canada investigator Allan] Mathews writes. The caller said that McAvoy's poll location had moved to the Alzheimer Society's building. Mathews later confirmed from returning officer Mark Moore that there was no polling station at the Alzheimer building on Richmond Street. And he found out from Elections Canada that the 1124 number makes no sense.77Brian Cross, Election calls 'weird,' NDP says: Robocall targeted MP's wife, The Windsor Star (1 March 2012), http://www2.canada.com/windsorstar/news/story.html?id=48dfd7a6-1936-4e77-8b02-e0bf13dc80ec&p=1.

Finally, the claim that the Conservatives were directing calls only to their own supporters is very clearly untrue. It seemed from the outset that some care had been taken in choosing the ridings into which the misinformation calls were sent; and it has since been established that the calls were carefully directed in another sense as well: their recipients were predominantly opposition-party supporters. On election day, journalists observed that the ridings from which reports of misinformation calls were coming seemed not to be a random set: as the Globe and Mail's Kirk Makin wrote, The false messages appear to be clustered primarily in ridings where close races are anticipated, meaning a small swing in voting preferences could mean the margin between victory and defeat.78Kirk Makin, Messages provide false polling station info, The Globe and Mail (2 May 2011), http://www.theglobeandmail.com/news/politics/messages-provide-false-polling-station-info/article2007127/.

The early evidence suggested that the messages were being sent for the most part into ridings in which Conservative candidates were running hard against Liberals or New Democrats. In Winnipeg-South Centre, for example, where Conservative Joyce Bateman narrowly defeated Liberal incumbent Anita Neville, prospective voters began to receive the fraudulent messages two days before the election.79Nevilles riding office reported that they started getting calls from voters on Saturday [April 30] asking whether their polling stations had changed (Elections Canada warns voters over false phone calls, CBC News [2 May 2011], http://www.cbc.ca/news/politics/canadavotes2011/story/2011/05/02/cv-election-polling-pranks-411.html).

Other closely contested ridings won by the Conservatives in which vote-suppression phone calls were reported included Kitchener-Waterloo and Nipissing-Temiskaming, Ontario, and Elmwood-Transcona, Manitobaalthough the pattern is in fact far from consistent: some closely contested ridings experienced no vote-suppression calls, while calls were reported in some ridings won by Conservatives with wide margins of victory.80As Chantal Hbert usefully pointed out, in Hbert: Robo-call accusations raise uncomfortable questions, Toronto Star (27 February 2012), http://www.thestar.com/news/canada/2012/02/27/hbert_robocall_accusations_raise_uncomfortable_questions.html, expectations of a consistent correlation between close races and telephone fraud are not borne out by the evidence. This article gives examples of ridings with narrow margins of victory that one might have expected to be targeted, but which were not, and examples of Conservative safe ridings where the notion that the incumbents need[ed] a dose of dark arts to hang on to their seats seems absurd, but where calls were nonetheless alleged to have occurred.

On the other hand, clear evidence has emerged that the fraudulent calls tended very strongly to target people identified as supporters of opposition parties. On March 15, 2012, the CBC's Terry Milewski reported the results of an investigation which discovered that voters across Canada believed the reason they got robocalls sending them to fictitious polling stations was that they had previously revealed they would not vote Conservative: Elections Canada says it never calls voters at all. However, it is only now emerging that calls impersonating Elections Canada followed previous calls by Conservative workers asking which way voters were leaning. That suggests that the Elections Canada calls, which are illegal, came from people with access to data gathered by the Conservative Party, which carefully controls access to it. [.]81Terry Milewski, Misleading robocalls went to voters ID'd as non-Tories: Pattern of calls points to party's voter identification database, opposition says, CBC News (15 March 2012, updated 16 March 2012), http://www.cbc.ca/news/politics/story/2012/03/15/pol-investigation-.html.

Noting that The pattern of legitimate so-called 'Voter ID' calls, followed by bogus 'Elections Canada' calls, occurs in ridings across the country, Milewski cited complaints about it from St. John and Fredericton, New Brunswick; from Ott