I was the first robocalls victim

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Briony Penn – March 5, 2012

My name is Briony Penn — I am a journalist and lecturer, and I ran as a political candidate in the 2008 federal election. My other claim to fame is apparently being the first “victim” of illegal robocalls.

We tried to warn Canadians what was coming up in the next election, but our complaints were inadequately investigated by Elections Canada and ignored by most media. If they had been investigated properly, then the outcome of the 2011 election may well have looked very different.

Back in 2008, I was running as a federal Liberal candidate in Saanich-Gulf Islands trying to defeat incumbent Conservative minister of natural resources, Gary Lunn. This riding was a logical choice to try out new electoral approaches — reform or irregularities — as it is as far from Ottawa as you can get and likely to receive less attention. The riding’s strategic location on the Pacific also put it at the heart of the national debate over whether bitumen should or could be safely distributed here via tankers and pipelines.

The NDP, the Greens and the Liberals had all asked me to run, so electoral reform was my preference — an informal coalition for progressive voters, to avoid splitting the vote and allowing Lunn to win again with only 37 per cent as he had in 2006. Our strategy for coalescing the vote appeared to be successful and after the NDP candidate stepped down in the last week of the campaign, I was leading the polls. The same poll listed the NDP’s share of the vote at one per cent.

That’s when strange things started to happen.

On the eve of the election, Oct. 13, 2008, the last of a series of irregular activities took place. A robocall went out to NDP supporters, purporting to be from the campaign office and urging them to vote for their candidate. No mention was made in the call that the candidate had stepped down, nor that his withdrawal was too late to have his name removed from the ballot. On election day, my 25,367 votes were 2,621 below Lunn’s. The difference was less than the 3,667 votes for the non-existent NDP candidate who finished at nearly 6 per cent of the vote. That this might be an illegal activity affecting an election outcome crossed many people’s minds.

Complaints were filed with the RCMP by Bill Graham, president of the NDP local riding association, and the official impersonated in the call. Nothing came of those investigations. We received dozens of emails, letters and phone calls encouraging us to make an official complaint to Elections Canada while academics, Duff Conacher of Democracy Watch and Will Horter of the Dogwood Initiative waded in to express their concerns for the dangerous precedent.

Our riding association, led by law student volunteer Sebastian Silva, put together a formidable complaint package to Elections Canada on Feb. 5, 2009. It included alleged breaches of the Canada Elections Act and the Criminal Code for both the robocalls and third-party Conservative advertising which we believed were linked, though we had no evidence.

On March 2, 2009 legal counsel for Elections Canada, John Dickson responded, “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 of the person or persons who actually made the calls. As a result of the foregoing, our investigation has now been concluded.” With regard to the third-party advertisers, Dickson wrote, “it is within the discretion of the Political Financing and Audit Directorate to refer the matter to the Commissioner for his consideration.”

We reiterated our concerns to Elections Canada and the press, with little uptake. Conacher publicly pointed out the evidence of collusion between the third-party groups and that it was illegal under the Elections Act to induce someone to vote or not to vote regardless of whether they were successful or not. Jean-Pierre Kingsley, former chief electoral officer until 2007, confirmed this in interviews last week. Both Conacher and Horter had written that the failure to fully investigate had ramifications for future elections. Conacher wrote “If they are allowed to get away with this (in SGI) what happens if there’s a case where the candidate is still there? Someone could do bulk calling on behalf of whichever candidate you think will split your candidate’s vote.” Horter wrote in his blog on March 28, 2009, that “if someone with subpoena powers doesn’t step up with some investigative muscle, I predict many more Karl Rove like black-op operations in future elections.”

Meanwhile, the NDP ethics critic in March of 2009 called for Lunn to step down with regard to the third-party allegations while investigations were underway — except that no one had any way of knowing if the investigation was even underway. Our riding association and the citizens’ groups continued to push Elections Canada for over a year. My last personal email inquiry elicited this response in March of 2010: “In this case, this Office examined thoroughly the complaints received and advised the complainants that there is no evidence that the Canada Elections Act has been contravened.”

No follow up was ever sent and the riding association was told the case was closed. Conacher’s recent analysis of Election Canada’s enforcement of the Canada Elections Act since 2004 reveals “that the main problem is no one can tell whether Elections Canada has been enforcing the law fairly and properly because it has failed to report details of how it has investigated and ruled on 2,284 complaints in the past years.”

Prime Minister Stephen Harper has come out on the offensive, characterizing people like myself as sore losers. Yes we are all sore losers when we lose our democracy to petrostate-like politics where illegalities are the norm. These transgressions rank up there with stealing ballot boxes, more typically associated with unstable regimes. From my experiences, we must demand an international review of this structured attack on democracy, because our current internal watchdog institution is either incapable of dealing with this issue, or has been instructed to ignore our concerns from the top.

Briony Penn is a journalist and consultant who lives on Salt Spring Island.

Original article on Ottawa Citizen website