A lawyer arguing six Conservative MPs should lose their seats because of a targeted campaign of voter suppression says there's "no loaded gun" pointing to electoral fraud, but the evidence fits.
Steven Shrybman says he doesn't have anyone among the eight voters he represents who didn't cast a ballot in the last election.
But, he says, between court documents describing a number of Elections Canada investigations, an affidavit from a call centre staffer who says she made misleading phone calls and polling data showing widespread suppression, it's all consistent with his clients' assertion that misleading calls influenced the outcome of the election in their ridings.
Shrybman said the applicants are not alleging the Conservative Party, Conservative officials or Responsive Marketing Group, a company that made campaign calls on behalf of the party, had anything to do with carrying out the fraud.
But Shrybman on Tuesday walked the court through documents he says support the applicants' allegation that there was a campaign to suppress votes and that it benefited the Conservative Party.
The most recent — and possibly most important — documents are two production orders seeking phone records for Shaw and Videotron customers. They show that Elections Canada is looking into complaints in 56 ridings. The documents were released at the end of last month.
They show, Shrybman said, that complaints to Elections Canada picked up after the first big media report earlier this year.
"People did not put two and two together" until that time, he said.
One of the documents recounts an interview with a Quebec voter who said he didn't cast a ballot after getting misleading calls. That could prove to be important, because the applicants lost the only voter who said a misleading call deterred her from voting. Leeanne Bielli challenged the election result in Toronto's Don Valley East riding when she actually lived in Don Valley West. Her part of the case was dropped.
The documents also revealed there is at least one more set of records still to be released publicly. The production order for Shaw refers to an order pending for Rogers.
Shrybman delved into court documents dealing with an investigation into misleading calls in Guelph, Ont. Shrybman pointed to the fact there haven't been any arrests in the Guelph case, despite an investigation that's lasted more than a year and a half, and said someone or some people went to great lengths to cover up the calls. That's why the applicants didn't know sooner that the seemingly innocent calls they received could be something more, he said.
Shrybman also used Elections Canada emails obtained under federal Access to Information laws to show officials were getting complaints from some of the six ridings even before election day.
He tied those accounts into an affidavit by Annette Desgagne, a former employee of RMG, who said voters told her during some of her calls that she was telling them to go to the wrong polling station. Desgagne says callers had been using a script mentioning the Conservative Party and asking for whom voters would cast a ballot, and that the script changed a few days before the election to remove a reference to the Conservative Party. The new script, Desgagne said, mentioned Elections Canada polling station changes.
Andrew Langhorne, RMG's chief operating officer, says in his own affidavit that Desgagne's allegation is "categorically false."
"RMG does not now, nor has it ever, participated in telephone campaigns intended to purposefully mislead voters."
Conservatives seek dismissal
Shrybman expects to take two days to make his case. The court spent Monday hearing a motion to dismiss the case and on the cross-examination of an expert witness who provided a last-minute affidavit last week.
The motion to dismiss, the second one argued in this case by Conservative Party lawyer Arthur Hamilton, says that the Council of Canadians is interfering in the case for its own benefit by paying legal bills for the eight voters.
Peter Engelmann, who responded on Tuesday to the motion on behalf of the voters, said it's normal for a third party to help with public interest litigation and suggested disallowing third-party funding would put a chill on public-interest litigation. He also pointed to previous cases in which third parties backed a legal challenge by an individual, including the National Citizens Coalition and a case brought by Stephen Harper.
Judge Richard Mosley reserved his decision on the motion to dismiss.
The court will hear this week from Shrybman on behalf of the applicants, followed by the responding MPs, who risk losing their seats. Chief Electoral Officer Marc Mayrand will be the last party heard.