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No Investigation into Duffy’s Allegations of Election Fraud

Commissioner says technical obstacles, time limits too great to probe Saanich-Gulf Island robocalls.

By Andrew MacLeod 8 Sep 2016 | TheTyee.ca

Andrew MacLeod is The Tyee’s Legislative Bureau Chief in Victoria and the author of A Better Place on Earth: The Search for Fairness in Super Unequal British Columbia (Harbour Publishing, 2015). Find him on Twitter or reach him here.

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Protests followed misleading robocalls in 2011 election; Senator Mike Duffy alleged similar calls in BC in 2008.

Despite Senator Mike Duffy’s testimony that Conservative operatives were behind misleading election eve phone calls in British Columbia in 2008, the Commissioner of Canada Elections has refused to reopen the investigation into the case.

Commissioner Yves Côté said “technological obstacles” and legal constraints prevent his office from reopening the case.

Côté was responding to a request from Saanich-Gulf Islands MP and Green Party leader Elizabeth May, who wanted the case reopened based on Duffy’s 2015 testimony that “black ops group at Conservative headquarters” were behind the calls.

“They used robocalls to misdirect NDP voters, to split the vote and allow Gary Lunn to win,” Duffy testified. He said Lunn didn’t know about the effort.

Côté wrote that the commissioner’s office, which oversees some aspects of federal elections, “conducted a thorough investigation” after the 2008 election.

“We worked in cooperation with other investigative agencies including the police of local jurisdiction (who had initiated a separate criminal investigation), the RCMP and an internal investigator from the telephone service provider,” he wrote. “In spite of our concerted efforts, we were unable to identify the source of the calls or the person or persons responsible for them.”

The use of Voice over Internet Protocol to disguise the source of misleading calls hampered the investigation of a similar case during the 2011 election and the technology continues to be an obstacle for his office, he wrote.

Côté also wrote that the legal deadline for investigating the calls had passed.

“When the event took place in 2008, a five-year limitation period was in place,” he said. “The legislation provided at the time that no prosecution for an offence under the Canada Elections Act (the Act) could be initiated after five years from the day the Commissioner became aware of the facts giving rise to the offence. That five-year period expired in 2013.”

In 2014, the government removed the limitation period for intentional offences under the elections act, but the new law doesn’t apply retroactively.

“I’m obviously very disappointed,” May said. “I don’t think a crime as serious as electoral fraud should be abandoned.”

Noting that the judge in the Duffy case found the senator credible on several key points, May said it’s sad that the office of the Commissioner of Canada Elections feels it cannot make a thorough investigation based on Duffy’s testimony.

“The investigation powers for electoral fraud in this country are too weak,” she said.

Calls urged votes for candidate who had quit race

On Oct. 14, 2008, the eve of the federal election, automated phone calls were made to people in the riding encouraging them to support NDP candidate Julian West, even though West had withdrawn from the race 20 days earlier. He’d dropped out too late to have his name removed from the ballot.

Recipients said the calls appeared to be coming from NDP riding association president Bill Graham’s phone, but Graham insisted they had nothing to do with him or the party.

When the ballots were counted, West had received 3,700 votes, significantly more than the margin of 2,625 votes that separated Conservative cabinet minister Lunn from his nearest challenger, Liberal Briony Penn.

The office of the Commissioner of Canada Elections investigated complaints about the calls, but failed to discover the source and said investigators couldn’t determine whether the calls had influenced anyone’s vote.

Last December, Duffy — who would be acquitted of 31 charges, many of them involving travel he billed to the Senate — described in court the rationale for a 2009 trip to help Lunn.

“He’d had a close call during the previous election, and it was only through the divine intervention of [late former senator and campaign manager] Doug Finley’s black ops group at Conservative headquarters that he managed to get himself re-elected,” Duffy reportedly told the court.

Lunn wasn’t involved, Duffy testified. “He knew nothing about it, except that they phoned him afterward and said ‘You’re welcome Gary.’ He said ‘What?’ [They said] ‘We got you in.’”

Following Duffy’s testimony, Lunn told the Canadian Press that he never knew who made the misleading calls and never told Duffy that it was Conservative headquarters.

Finley died in 2013 after a long battle with colorectal cancer.

Duffy did not respond to a request for an interview Wednesday.

‘Massive election crime,’ says volunteer

“It’s pretty sad that the people who are responsible to ensure the fairness of our elections are aware of a potential crime being committed [which was] mentioned under oath, and are not doing anything about it based on a legal technicality,” said Sebastian Silva, a resident of Saanich-Gulf Islands who worked on the Liberal campaign in the riding in 2008.

Silva said that based on the commissioner’s letter, the five-year time limit should begin when Duffy testified, not when the calls were made. “It’s not five years from the event, but from the time the commissioner became aware of those facts.”

Silva said he had been hopeful after Duffy mentioned the 2008 calls in court.

“It seemed like finally we’d get to the bottom of it,” he said. “When a crime like that’s committed, where someone cheats, at some point there has to be at least an acknowledgement.”

He said he was disappointed in the commissioner’s refusal to reopen the investigation and that the failure to investigate could contribute to an erosion of people’s faith in Canada’s democracy.

“This was a massive election crime and nothing’s being done about it,” he said. “If we don’t deal with stuff like that, it’s just going to keep happening... We owe it to ourselves to get to the bottom of it.”  [Tyee]

Read more: Elections

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