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Elections Commissioner Drops Phone Fraud Probe

Move leaves opposition candidates, watchdog with questions.

By Andrew MacLeod 20 Mar 2009 | TheTyee.ca

Andrew MacLeod is The Tyee's Legislative Bureau Chief in Victoria. You can reach him here.

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Investigate harder: Democracy Watch's Duff Conacher. Photo courtesy It's Your Government.

The Commissioner of Canada Elections' office investigated possibly fraudulent election eve phone calls made in the Saanich-Gulf Islands riding during the federal election, but will not pursue charges.

"Our investigator found no one who had actually been influenced in their vote because of the purported telephone call, nor was he able to identify the source or the person or persons who actually made the calls," said a Feb. 12 letter on Elections Canada and Commissioner of Canada Elections letterhead from legal counsel John Dickson to one of the people who complained. "Our investigation will now be concluded."

A March 2 letter from Dickson to executive members of the Liberal Party's electoral riding association for Saanich-Gulf Islands says the same thing.

On Oct. 13, the day before the federal election, residents received an automated phone message urging them to support NDP candidate Julian West. West had withdrawn from the race 20 days earlier, but too late for his name to be removed from the ballot.

Residents with call display said the call appeared to be coming from the NDP's riding association president, Bill Graham, but Graham was adamant the message did not come from him.

No evidence found

The commissioner's office investigated the complaint, which was forwarded to the agency by the RCMP, as a possible breach of the Canada Elections Act, which prohibits anything that "by a pretence or contrivance... induces a person... to vote or refrain from voting for a particular candidate at an election." "In order to recommend charges in this matter," Dickson's letter said, "evidence would be required to demonstrate that the recipient of the call knew the position held by Mr. Graham as well as his telephone number and that they were thereby influenced in their vote. In addition, evidence of the actual source of the calls and the person or persons who made them would be required."

The investigator found no such evidence, the letter said, so the matter was closed.

"I just can't believe they couldn't find who actually contracted to do that," said Democracy Watch co-ordinator Duff Conacher. "I do not believe the commissioner of elections cannot find who was responsible."

The phone company would have records of where the calls came from, he said. "You can't hide that from a phone company. It's not believable."

'Not always possible': Telus

Telus spokesperson Shawn Hall said it is true the origin of phone calls can be hidden through spoofing websites making it hard for the phone company to investigate. "I wouldn't say no way. I would say it's very difficult for us and not always possible."

He said he would check whether Telus investigated in this case, but did not call with an answer by posting time.

The websites edit the identification attached to the calls, Hall said, so they appear even to the phone company to be coming from the spoofed number. "We think it should not be legal, or that it should at least be regulated."

Conacher said the commissioner's office also appears to have made a mistake interpreting the law. It is irrelevant whether or not anyone was actually influenced to vote a certain way, he said. "The standard is not that you have to actually influence anyone. The standard is you have to attempt through any pretence to influence someone."

Elections Canada and the commissioner's office should investigate the case harder, he said. "They should be pursuing that. There's no excuse for Elections Canada to give up finding who placed those calls."

Liberals say 'public confidence shaken'

A spokesperson for Elections Canada, John Enright, said the commissioner's office is independent of the agency, and investigations follow standards set out in the Investigator's Manual. "I can assure you all due diligence was done."

Members of the Liberal Party who complained to the commissioner are left with a list of questions, said Sebastian Silva, chair of the Saanich-Gulf Islands electoral district association, in an e-mail. They want to know how Elections Canada decided nobody was influenced, why they can't find out who placed the calls and why the investigation was closed without knowing who placed the calls.

"Such a flagrant violation of federal electoral legislation, we contend, must be investigated by your office in order to determine, through phone records, the identity of those responsible," Silva and EDA president Paul McKivett said in their Feb. 5 complaint to the commissioner. "If individuals intentionally conveyed false information to voters to influence the result of the election, then prosecutions may also be in order."

The calls were an illegal attempt to influence the election result, they alleged. "Public confidence in our electoral system has been badly shaken as a result."

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