Harper, Lawyers and the Rule of Law

This is more of a reminder for a larger project I'm fiddling with. I'm fascinated as a lawyer (non-practicing now, thank God) by the attitude towards the law, Charter and courts shown by the Harper Conservatives. Contempt I think is the word that best describes it. The contempt is borne out of a complete and willful lack of understanding of how our parliamentary democracy works and how laws have to be in conformity with the Constitution (including the Charter of Rights).

Theirs is a very unsophisticated - almost juvenile - belief in the "Supremacy of Parliament" and the false god of raw numbers democracy. Due largely to the influence of American republicanism (big and small "R") and prairie charismatic populism, they believe firmly in the right of the majority to tyrannize the minority. The courts of course stand in the way of it as a bulwark against laws that overstep constitutional or deeply-rooted common law precedent.

A recent example (one of many, especially in the wake of the Nadon decision) is a quote from MP Larry Miller, the four-term Conservative MP for Bruce-Grey-Owen Sound. It's saddening that in 4 terms as MP he has still not learned anything about how the parliamentary system works. In fact, he must be actively taking steps to not understand it.

Harper's chair of the Transport and Infrastructure committee, and known as the Conservative “Keeper of the Flame”, Miller recently said:

Larry Miller MP
Deep Thinker

“Taking parliamentary powers away ties into the stories that the courts are making the laws. In my opinion, Parliament should make them and if the public don’t like them, then the public will straighten things out. If you take things one step further, why elect people and pay them to do something the courts are doing. But the courts are not there to make laws, they are there to interpret and enforce those laws.

“There are two main reasons I became a Conservative. Firstly, I’m fiscally responsible — I want to see smaller government, not bigger government. Secondly, I’m all for rights and freedoms but the Charter complicates things. Pierre Trudeau did this willfully and deliberately, taking rights away from the majority to protect the minority. The Charter of Rights puts all the lawmaking decisions into the hands of the Supreme Court and to me, that is not what democracy is about."

 See July 14, 2014 National Post article.

It's hard to know where to start with this level of ignorance, especially the lament about Trudeau and the Charter taking away the right of the majority to beat the tar out of minority interests whenever they feel like it. That was sort of the well-publicized point of it.

Then you have Dan Albas, the MP for Okanagan-Coquihalla, who says "he respects the courts" but the goes on to show contempt for the judicial process:

"Often the Plan B is to do an end-run around our democratic process and turn to the courts where it seems some judges are quite happy to engage. This can result in decisions contrary to what have been decided in our democratic process," Albas told CBC Radio's The House. "Basically what you're having is a judge can overturn and then cost the taxpayer a lot of money without any accountability or representation on their behalf."

Because rights are judged on how much money they cost taxpayers, which the government wouldn't have to spend on court challenges if they cared about them in the first place.


Here's another quote from an anonymous Harper MP that shows some of this contempt for professionalism and the legal profession in particular by his government:

Another recounted receiving a call from the Prime Minister’s Office informing her that she’d received an appointment in the justice ministry: “I said, ‘Tell the prime minister to call me back, I didn’t finish law school.’” When the prime minister called, he told the MP that the department had too many lawyers, and that he needed “some practical politicians in there.”

http://www.samaracanada.com/research/mp-exit-interviews/it%27s-my-party-report/advancement-and-discipline

Imagine the Department of Justice having too many lawyers. Do you think this might be the attitude that has led to so many of their laws and cases being thrown out by the courts as clearly unconstitutional?

"Robocall" Judgment - A Victory For The Conservative Party?

Conservative spokespeople have been making the rounds claiming the decision in the "robocall" vote suppression case vindicated them and was a clear victory for the Conservatives. (Actually, the calls were both live and recorded, so "robocall" is a bit of a misnomer.) 

While the case ultimately decided that the election results should not be overturned, it was hardly the unsullied victory the Conservatives want Canadians to believe.

First of all, in his decision released May 23, 2013, Federal Court Mr. Justice Mosley made a finding that "it has been established that misleading calls about the locations of polling stations were made to electors in ridings across the country, including the subject ridings, and that the purpose of those calls was to suppress the votes of electors who had indicated their voting preference in response to earlier voter identification calls." [p.88] 

He also points out that the calls "appear to have been targetted towards voters who had previously expressed a preference for an opposition party (or anyone other than the government party)..." [p. 92]  That statement alone makes it clear who was the only group supposed to benefit from the calls - the Conservative Party.

This, the court determined, was fraud: "I find that the threshold to establish that fraud occurred has been met by the applicants." [p. 88] 

Mr. Justice Mosley also determined that "the most likely source of the information used to make the misleading calls was the CIMS database maintained and controlled by the CPC, accessed for that purpose by a person or persons currently unknown to this Court." [p. 88]

Over a year ago I wrote about the CIMS database and the collection of non-supporter voter information and how this could only have come from Conservative campaign canvass information collection.

The Conservative claim to victory in the current case is in several findings by the judge. First, the judge said "There is no evidence to indicate that the use of the CIMS database in this manner was approved or condoned by the CPC. Rather the evidence points to elaborate efforts to conceal the identity of those accessing the database and arranging for the calls to be made." [p. 88]

The Conservatives are portraying this to mean that they have been cleared of any involvement in the voter-suppression calls. In fact, it means the "elaborate efforts to conceal the identity of those accessing the database and arranging for the calls to be made" successfully left no evidence of who made them. It's not exoneration - it is merely the absence of evidence. 

The Conservatives would like you to think that a finding of "no evidence" is the same as innocence. It isn't, especially when read together with the previous finding that "the evidence points to elaborate efforts to conceal the identity" of the perpetrators. The judge is saying we don't know who did it because they covered their tracks well.

After finding the conduct of person or persons unknown using the super-secure Conservative CIMS database to direct the voter suppression calls was fraud, Mr. Justice Mosley found that there was no available evidence (mostly, he says, due to the nature of the crime) that the voter suppression campaign had an impact on the election's outcome. He called it "thin and widespread". For that reason - essentially because it could not be proved that it was effective, although the applicants introduced polling data that suggested it could have been - he declined to overturn the election results.

That is a victory for the sitting Conservative MPs, if not for the integrity of our electoral process - something Mr. Justice Mosley expresses concern for and notes is the subject of an ongoing investigation.

Mr. Justice Mosley also affirms, by denying the Conservative motions to dismiss the case due to delay or because the Council of Canadians was partially funding the litigation ("champerty"), that the court will generously uphold the right of citizens to defend the integrity of our fundamental right to expect free, fair and clean elections regardless of technical arguments. [pp.44-48]

However, Mr. Justice Mosley kept his harshest comments about the conduct of the case by the Conservative Party of Canada and the respondent Conservative MPs for the end, when he made his ruling on costs.

COSTS

The costs award and the reasons are nothing less than a public, pants-down spanking of the Conservatives and their counsel from a normally very reserved Federal Court.

In determining who should pay the costs of the case, the judge reviewed the conduct of the parties. He used the strongest judicial language to express his extreme displeasure with the Conservative respondents' conduct. It is worth looking at those paragraphs in whole:

[261] These proceedings have had partisan overtones from the outset. That was particularly evident in the submissions of the respondent MPs. In reviewing the procedural history and the evidence and considering the arguments advanced by the parties at the hearing, it has seemed to me that the applicants sought to achieve and hold the high ground of promoting the integrity of the electoral process while the respondent MPs engaged in trench warfare in an effort to prevent this case from coming to a hearing on the merits.
 
[262] Despite the obvious public interest in getting to the bottom of the allegations, the CPC made little effort to assist with the investigation at the outset despite early requests. I note that counsel for the CPC was informed while the election was taking place that the calls about polling station changes were improper. While it was begrudgingly conceded during oral argument that what occurred was “absolutely outrageous”, the record indicates that the stance taken by the respondent MPs from the outset was to block these proceedings by any means.
 
[263] The preliminary stages were marked by numerous objections to the evidence adduced by the applicants. The respondent MPs sought to strike the applications on the ground that they were frivolous and vexatious, to have them dismissed as champertous and to require excessive security for costs, in transparent attempts to derail this case. 

As to the costs of the case itself - who pays for the long and costly legal proceedings - the judge made his displeasure with the Conservative MPs and Conservative Party keenly felt.

He wrote: 

[260] I am mindful of the fact that in this instance the applicants have received guarantees of indemnification by a non-governmental organization which has been raising funds for that purpose. But it is also apparent that the respondent MPs are supported by the resources of the party to which they belong, resources which are underwritten by taxpayers. 

Justice Mosley begins by awarding the Applicants their costs for the numerous and time consuming pre-trial motions:

"The applicants are, in my view, entitled to be awarded costs on each of the pre-hearing motions in which they have been successful on a solicitor and client basis to be paid jointly and severally by the respondent MPs. This applies also to the champerty motion and the motion to exclude the Graves evidence which was brought initially in relation to the Don Valley East application and then deemed to apply to each of the other applications." [p. 94]

These motions likely make up the bulk of the time and cost of the action. This is where the big money in legal fees probably is. Most importantly, the judge awards these costs on a scale called "solicitor and client". That means actual costs paid by the applicants to their lawyers, which is the most expensive and punitive scale available. Usually costs are awarded on a lesser "party and party scale". 

Almost always costs go to the winner of a case, but not this time. Mr. Justice Mosley explains that there is a public interest involved, but he also makes it abundantly clear he was penalizing the Conservatives with costs for their combative and obstructionist conduct of the case.

On the respondent MPs' costs, he says: "Apart from the motion costs, and with the above considerations in mind, I am inclined to order a modest fixed amount for the costs of the hearing." He emphasizes the word "modest", as in, don't expect much. No soup for you.

As for any other respondents who opposed the application, the judge orders them to pay their own costs.  

So, a victory for the Conservatives? Yes. Their MPs get to keep their seats, and in the end that's all they care about.   

But we have a legal finding that the 2011 General Election was in fact marred by fraud; that the source of the fraud was likely the Conservative Party's CIMS; that whomever committed the fraud went to great lengths to cover their tracks; and that the Conservative Party and its representatives will go to great lengths to "block these proceedings by any means" and "derail" justice.  

So, a victory? Only if you don't count a judicial finding of election fraud, a scathing indictment of the Conservatives from the Federal Court that reveals their low opinion of justice and democracy, and the way they do business.  

Read the complete 95-page judgment here: http://www.documentcloud.org/documents/703627-t-619-12-en.html  

The "Robocall" smoking gun

The "robocall" voter suppression fraud has all the elements of a Scooby-Doo mystery, but the same principles apply in looking at the evidence to figure out if the guilty party is really a sea monster or Old Man Johnson in a rubber mask.

Having worked in an IT shop for a while and with automated election systems, there are several questions I noticed need to be asked.

The so-called robocall centre is a Voice Over IP system (VOIP) that can send out tens of thousands of calls an hour from a server through the Internet to phones anywhere. It makes the calls simultaneously like a bulk email.

To use it you need only a few simple things:

1) An account with an Internet service provider that has the specialized robocall software

2) An uploaded list of target phone numbers from a database or spreadsheet

3) A recorded message, called in from a phone anywhere

An account with an ISP needs several things. You have to sign up for the service, which means providing email confirmation, contact data and, most importantly, payment. Emails can be set up from any number of anonymous sites, like Hotmail or Gmail, but even they leave traces, like what IP addresses you log in from. Anyone who works in the IT world can make it very hard to trace an email by using proxy servers designed to mask where you are.

Payment is more difficult, especially when paying for expensive campaigns like the robocalls. Paying for all the alleged robocalls at once would be an expensive proposition, and multiple small payments increase contact and risk of identity detection. Online payments for Internet services are generally by credit card or PayPal. We know PayPal's records have been requested by Elections Canada. PayPal is serious about not being a source of money laundering, and so is careful about identifying users of their services.

We have heard that a pre-paid credit card has been used to pay for the cell phone used to make the recorded message for the robocalls. It is safe to assume it was used to make PayPal payments too. PayPal will also log IP addresses for transactions, which would have to be disguised as well.

Many ISP services are completely automated and self-serve, although you would think some human IT hands would be involved in a provider of primarily sensitive political call services, at least in the verification of accounts. If this was piggybacked on an existing client's account, the passwords and access would have to be very tightly controlled.

If "Pierre Poutine" used an existing Conservative robocall account, you would expect this would be a very short investigation. Few people would have the passwords let alone the authority to access the account.

Robocall accounts do several things. They not just make the calls, but they provide users with detailed lists of when calls were made, how many we're connected and even how long people listened to them. This is important for legitimate businesses to know if their calls are going through and effective. These reports are either available to download through the website or are emailed to the user. Again, each interaction with the robocall server produces an IP log.

That brings us to the lists themselves.

If the fraudulent robocalls were targeted specifically at Non-Conservative voters, that list had to come from somewhere. It is hardly worth addressing the idea that the Liberals made these calls as Dean Del Mastro has said repeatedly. There is no sense in telling your own voters the wrong voting location, especially when the calls came from a highly politicized company that works almost exclusively for conservative parties.

I have explained below the only place these lists of non-conservative voters - many of whom were apparently elderly - could come from. An opponent's marked riding canvass list is the only reasonable place to collect this information. But that means to get it into a robocall database it has to be matched with local phone numbers and uploaded into a master database.

Ridings maintain their own local databases of "marked lists" of voters, so there has to be a central plan to collect non-Conservative voter data from ridings and individual polls that might "swing" with only a slim margin of votes. We know the robocalls were made to multiple swing ridings, so there was a coordinated effort. This required an overview of what was needed to win not just polls or ridings, but the election. In the compartmentalized world of the Conservative Party, this could only be the central campaign.

Having worked with databases of delegate and other lists, cleaning a list is a massive undertaking. Hardly the work of one person in a short time.

There were a number of different targeted ridings and polls. When the phone message was uploaded to the server for the robocalls, it had to be recording in multiple versions, as each polls was different, and to be believable each message had to be specific to the calling location. There is no point in telling a voter that their poll has been moved to a different riding, since it won't be believed. You need local intelligence of what to record in the 30 or so robo-messages so that their change in polling location is at least semi-believable with a riding-specific address. Not a small undertaking without local assistance in each riding and a central repository for the data. That local assistance has to be coordinated, at least enough to centrally record and upload the couple of dozen different voice messages tailored for each poll and riding deemed important enough to break the law and sway the outcome of an election.

The pattern of deception - throw-away cell phones paid for by cash-purchased credit cards, etc. - show the people behind the voter suppression fraud knew what they were doing was highly illegal and went to great efforts to not get caught.

Looking at each of these elements, it is also clear this is not the work of a rogue or lone gunman. The technology is a closely guarded "political super weapon" of the Conservatives, and not something most would be familiar with or have access to during the vital last days of what appeared to be a desperate last ditch bid for a Conservative majority. It requires a large number of man-hours and resources, money and access to the campaign-enhanced voter records of a couple dozen ridings. This isn't a prank Twitter account - it is a sophisticated attempt to use cutting edge technology to subvert democracy.

It doesn't take Scooby-Doo or Mystery Inc. to see why this could only happen as part of a carefully coordinated plan.