FAQ: Why a public inquiry into 2011 Canadian federal election fraud?

Canadians are being told to wait for Elections Canada to finish its investigation and then act accordingly. For a number of very clear reasons this is not the right thing to advocate if you take election fraud seriously. This FAQ is intended to clarify precisely why leaving this to Elections Canada is problematic and also to address some of the common rebuttals that are being made, in the press and elsewhere, which are preventing effective action from being taken.

Q. What are the benefits of having a public inquiry?

A. A public inquiry is a centralized court run by experienced judges. The primary benefit of a public inquiry is that it can compel people to testify under oath. The RCMP cannot. In fact, it would be stupid for suspects to speak to the RCMP.

Problems with inter-agency cooperation and coordination are minimized, whereas the RCMP must coordinate with many different law-enforcement groups. Further, we will not need the RCMP to go out and find information, we can simply legally demand that the information is brought before the Canadian public.

It is sometimes true that by compelling someone to testify that that evidence cannot be used for criminal proceedings. However, this type of evidence is not what most of us are concerned with. We want to know if we have a legitimate government or not. Further, Elections Canada/RCMP can and should continue with their investigation, as was the case with the Gomery inquiry which occurred concurrent to an RCMP investigation.

Q. What are the consequences of Elections Canada continuing to conduct this investigation?

A. First, Elections Canada’s mandate is to run elections, not be an investigatory body; they are going to the RCMP for a reason. As is clear from the enforcement section of the Elections Act:

http://www.elections.ca/content.aspx?section=res&dir=loi/fel/cea&document=part19&lang=e

there really is no legislative authority for maintaining election integrity beyond physical incidents at polling booths. Second, Elections Canada probably would not undertake an investigation of all of the coordinating mechanisms behind an operation of the alleged size, especially if some of those mechanisms extend internationally. Third, and this is one of the most important points in this paper, organizing an investigation that spans as many as 80 (edit: 200 as of Mar 29) different ridings and jurisdictions is extremely difficult. Even in cases with two different regional jurisdictions, as in the Pickton investigation, coordinating between the Vancouver Police Department and the RCMP was a total fiasco. Multiply the bureaucracies involved by an order of magnitude (RCMP, Elections Canada, the CRTC, the OPP etc…) and the likelihood of this going well suffers proportionately. In order to coordinate an investigation of this size, a judiciary that can organize the investigation and is trained to assess facts and form conclusions that are properly based in Canadian law is essential.

Q. Elections Canada did a good job with the In-and-Out Scheme, aren’t we prematurely being a little hard on them?

A. All of this this is not to say that Elections Canada is a “bad” organization, only that we, the public don’t know anything about what’s happening and we’re beng asked to stake the integrity of our democracy on simple faith. What seems clear is that Elections Canada is not designed to investigate election fraud of the scale being alleged here. We have seen that it has been a year now since the allegations of voter suppression first started coming in and part of the reason is that Elections Canada is not a very transparent organization. The public doesn’t know how serious they are taking different complaints, and until a couple journalists started reporting on the breadth of the allegations there was really no fire under the feet of the organization to do much about it. They acted very slowly on the first complaints, initially stating that the investigation would be too hard and not much would come of it, and have already admitted to limiting their investigation:

http://www.vancouversun.com/news/Elections+Canada+refuses+probe+annoying+calls/6232525/story.html

http://www.cbc.ca/news/politics/story/2012/03/01/pol-robocalls-elections-canada.html?cmp=rss

Q. Why will Elections Canada be ineffective in this investigation?

A. A public inquiry can compel people to testify under oath. The RCMP cannot compel testimony. If they do, the statements will be ruled inadmissible and the evidence cannot be used in a trial. In fact, the first piece of advice from a defence lawyer is usually “do not speak to the RCMP”. This is the most important reason for demanding a judicial inquiry because they have the best ability to ensure a complete picture.

Q. What could be more important than a criminal investigation?

A. Canada is a democracy and the most important part of that system is that the people control who is elected. The decision that all Canadians make when they choose whom they want to govern is the essence of our system of government, our legal system and how we want to be perceived by the rest of the world. The Robocall scandal has revealed a significant defect in our electoral process and this undermines our democracy.

While the crimes that may have been committed are egregious what is more damaging is that it happened in the first place and on such a wide scale. We need to understand why that is so that we can ensure that it will never again be allowed to happen in the future. The need for information on how to protect Canadians in the future is more important than charging people with offences.
The ultimate result, if there were charges, would be a community based sentence. These are non-violent offences and as a result the individuals who committed them would be able to work out plea agreements. An example of how difficult it is to prosecute these types of cases is the Basi-Virk case in BC where, after millions of dollars and years of litigation, David Basi and Robert Virk received a Conditional Sentence Order for one of the most egregious political breaches of trust in BC history. The reason for that verdict was the complication and length of the prosecution. The prosecutions in the present Robocall case would be more complicated and would be far more lengthy and costly to prosecute.

Q. Isn’t it true that a judge cannot nullify an election result so nothing can come of this anyway?

A. Elections Canada would be limited to reporting criminal wrong-doing on a case by case basis. The process from there would be to hold by-elections in each of the ridings where specific malfeasance could be shown beyond a reasonable doubt. A judge however, would have the capacity to take into account the sum of the effects, as has been sketched out here, and potentially recommend a number of remedies, including the dissolution of parliament. Though the CPC has a majority and can ignore this recommendation, there would at that time be no doubt about the legitimacy of the government.

Q. A judicial inquiry is public and could risk exposing elements of the Elections Canada investigation.

A. This is true, so the inquiry should try to proceed with care in order for the public to get the most from the processes at work. Further, evaluating the higher-level allegations set forth in the Kessler document is not something Elections Canada will ever do, and acting on the discovery implications of that documents is necessarily beyond the scope of Elections Canada. Again, this points to a very precise role for a judicial inquiry in uncovering the larger mechanisms at work, potentially internationally, of voter suppression.

Q. Does the evidence actually warrant this?

A1. There are allegations of the misleading calls from about 80 (edit: 200 as of Mar 29) ridings across Canada. Hundreds of specific allegations of voter suppression starting from as far back as 2008 have been reported.

A2. There is physical evidence in the form of fake voter cards and taped recordings of misleading calls from various ridings available to the public.

A3. The CPC has admitted to making transgressions, but blamed these incidents on various errors or low-level actions.

A4. Signed affidavits have reported hundreds of people showing up incorrect polling booths, ripping up voter cards in dismay.

A5. Public allegations of voter suppression training camps within CPC circles have been made.

Q. Has Canada ever had a public inquiry into election fraud?

A. No.

Q. Has Canada ever had a public inquiry where criminal charges were likely?

A. Yes.

Q. How do we obtain a Royal Commission?

A. We will have to petition the Governor General.

Governor General’s Website

Petition Governor General Directly

Great care must be taken not to abuse the power of such an investigation. While the allegations are highly suggestive, they are as yet, only allegations. That said, these are the most serious political allegations that have been made in our lives in Canada. Whether you agree with the analysis provided here or not, you need to know that a public inquiry of some form is the position currently being taken by some of the respectable individuals and organizations in the country.

Liberal Party
NDP
Green Party
Rick Mercer
Lead Now

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