When voter suppression comes calling

By Briony Penn, December 2014

A new documentary and public forum in Victoria in January will shed light on election fraud in Canada.

According to Peter Smoczynski, a 40-year veteran journalist and filmmaker from Ottawa, “Electoral fraud is a well organized crime. Millions of dollars are dedicated to duping various demographics of eligible voters in democratically run countries on election day.” Smoczynski, like many Canadians, believes something terribly wrong took place during the 2011 federal election.

The former CBC producer and documentary filmmaker is now half way through production of his new film Election Day in Canada: When Voter Suppression Comes Calling, due to be released before the 2015 election. Victorians will have a chance to preview clips and lend their voice and support to Smoczynski’s film at a forum sponsored by Focus Magazine and Open Cinema at the end of January. 

Smoczynski recently shared some of these film clips with me. Interviews with key observers of the electoral fraud saga of the last two federal elections help unpack the “voter suppression” that occurred in 2008 and 2011. In one clip, veteran journalist Frances Russell calls the use of fraudulent techniques in 2011 “one of the biggest political crimes in Canadian history.” Voter suppression, notes the Globe & Mail’s public affairs columnist Lawrence Martin, “is a euphemism for rigging the vote.” 

In the film, ex-Conservative MP Inky Marks, Green Party MP Elizabeth May and NDP leader Thomas Mulcair all express palpable disbelief that such fraud has come to Canada. Mulcair says, “This whole question of voter suppression—I don’t think too many Canadians would have believed it would come to Canada 10 or 15 years ago…we had better start protecting our electoral system.” 

The film explores different techniques used to suppress voting, the extent to which they’re used, and their effectiveness. For example, Smoczynski drills down into details about robocalling, a strategy that utilizes sophisticated databases in which voters have been profiled, including information on how they can be manipulated to change their vote. Those manipulations can include such different measures as physically preventing access to polls and the use of slanderous flyers.

One of the interviewees, Professor Irwin Cotler, law professor and highly respected Liberal MP in downtown Montreal, experienced the chilling effect of such flyers distributed in his riding in 2008. Cotler lost 42 percent of his voter base in the 2008 election when flyers falsely accused him of anti-semitism. Cotler, who is Jewish, states in the film that this type of voter suppression has “long legs and can permanently damage the reputation of a sitting MP and candidate.” When Cotler demanded an apology he was accused of “playing victim,” which, as Smoczynski points out, is a technique employed to chill the climate of healthy democratic participation. 

However, the rise of sophisticated technologies for databases and robocalling has created the most serious threat yet—“a tsunami” according to the campaign manager to federal Liberal MP David Bertschi, one of the first politicians to file a complaint in the 2011 election—because of its potential for central control.

Smoczynski, like many a Canadian, had his suspicions confirmed about voter suppression tactics when journalists Steve Maher of Post Media and Glen McGregor of the Ottawa Citizen broke the “Pierre Poutine” story in February of 2012, tracking at least one of the calls back to that fictitious name. “It really was brilliant journalism but it warranted a documentary film.” So Smoczynski called Maher and said: “I’m going to cover this story, will you help?” 

What ensued has been a two-year journey, mostly funded by Smoczynski, of interviewing the people who have been directly affected, as well as those academics and journalists looking at election rigging—a phenomenon that had reached the level of high art in the US before slipping across the border into Canada in 2008. 

Smoczynski was encouraged by Lawrence Martin to start at Canada’s “ground zero,” the Saanich-Gulf Islands riding, where robocalls and other voter suppression techniques were experimented with in 2008. Smoczynski’s appearance here in January will coincide with research and filming to capture this part of the story. Full disclosure: I ran as a federal Liberal candidate in that race and submitted an affidavit to Elections Canada with evidence of several techniques rarely experienced before in Canadian politics, including robocalls and alleged fraudulent third party advertising. If you recall, the NDP candidate, Julian West, withdrew from the race, leaving a neck-to-neck race between Conservative MP Gary Lunn and myself. The night before the election, automatic phone calls flooded the homes of voters identified as NDP supporters, urging them to vote NDP (West’s name couldn’t be taken off the ballot by the time he withdrew). As Elizabeth May notes in a recent newsletter: “The calls purported to be from the NDP. In fact, the ‘spoofed’ number that appeared on the call display was the home fax number of a member of the local NDP executive. The call sounded like a commercial for the NDP. Get out and vote!…The NDP went from the expected 1 percent in earlier polls to nearly 6 percent, or 3667 votes. Gary Lunn was re-elected by 2625 votes, and Penn defeated.”

May also notes: “The local NDP denied any knowledge of the calls. In fact, the local volunteer whose number had been used as a false trail for caller ID felt he was the victim of identity fraud. The NDP, the Liberals and a non-partisan group, Conservation Voters of BC, all brought forward detailed complaints to Elections Canada and the RCMP.”

What we all discovered—and obviously the perpetrators of those crimes discovered—is that Canada was ripe for rigging. In response to the 2008 complaint, Elections Canada got back to us—several years later—to say that they could not trace the robocalls back to an individual and the matter, therefore, was closed. Other allegations that had been made were never reported on or even investigated, to our knowledge. Until Smoczynski, no one has even asked the most basic questions: What happened? And why didn’t Elections Canada investigate more deeply? 

The documentary will also cover voter suppression as documented in eye-witness and affidavit accounts from across Canada in 2011, and the subsequent three-year investigation by Elections Canada. This past April Canadians finally heard from Commissioner of Canada Elections Yves Côté; again, he found “no evidence of a willful plan to deceive voters beyond the Guelph riding case.” Elections Canada had received well over 1700 formal written complaints about fraudulent calls in 2011 involving 247 of Canada’s 308 ridings. It only investigated 129 of them. Only one could be traced to a young political operative, a “lone staffer” from Guelph—Michael Sona—who was eventually convicted of attempting to prevent voters from casting ballots through arranging calls that told them the location of their polling stations had changed. 

Six days after the Côté’s report was released, Prime Minister Stephen Harper rammed through Parliament an amendment to the Elections Act, the so-called Fair Elections Act, which has been widely criticized for such provisions as requiring Côté, or whoever holds his position in the future, to keep such reports secret.

Smoczynski sees as a turning point in the story the evidence presented during a 2012 independent legal challenge. The outcomes in six of the most tightly contested ridings in which voter suppression occurred were challenged by the Council of Canadians, represented by civil rights lawyer Steven Shrybman. “When I read the evidence that was filed by Steven Shrybman,” says Smoczynski, “I was staring at the basis for a documentary...in black and white.”  

The interviews with Shrybman provide chilling and compelling evidence that, as Judge Richard Mosley concluded in 2013, “widespread election fraud occurred” in which “there was an orchestrated effort to suppress votes during the 2011 election campaign by a person with access to the Conservative Party of Canada’s Constituency Information Management System [or CIMS database].” Who that person was remains a mystery. 

Shrybman and Smoczynski point to one very obvious question: Why did Elections Canada Commissioner Côté not broaden his investigation to look at the federal court evidence? As Shrybman describes, Côté “took a very narrow approach” to the investigation, whereas the federal court explored far more evidence with experts in voter suppression, robocall technology, and the role of databases. We learn that telephone companies have no idea who has a telephone at a particular time and that it is also very easy to program incorrect names and different caller ID numbers for every call. The court also received evidence from an EKOS Research poll, which proved there had been widespread fraud in far more than the six ridings selected for the case; that the calls had successfully suppressed voter turnout; and they  targeted non-Conservatives. The court found that the most likely source of the data used to make the calls was, again, the Conservative Party’s Constituency Information Management System (CIMS). 

According to ex-Conservative MP Inky Mark, CIMS is a massive databank containing information on voters gathered in every riding from local Conservative associations over many years. The party has precise numbers on who consistently votes, who swing voters are, how undesirable voters can be influenced, and how many and which voters need to be discouraged from voting. In the film, Mark expresses his misgivings about the danger of centralizing all information under CIMS. “MPs give up all their power [to the central office] because if the party is not happy with you, all they need to do is change the password and you are done; you can’t even access your own information. It’s all about controlling all the information gathered from the local associations…Hand your files to the CPC headquarters and they control the information. I refused to do that from day one.” 

Among the experts Smoczynski hopes to tap while he’s on the West Coast are political scientists Anke Kessler at SFU and Tom Cornwall at UBC who, earlier this year, jointly presented evidence on the effect of “voter demobilization” on turnout. They found that those polling stations with predominantly non-conservative voters experienced a decline in voter turnout from 2008 to 2011, and that this effect was larger in ridings that were targeted by the fraudulent phone calls. There is, they argue, “a statistically significant effect of demobilization efforts: in those ridings where allegations of robocalls emerged, turnout was an estimated 2.5 percentage points lower on average.” For swing ridings, that magnitude of shift is all that’s needed to change the outcome. 

Shrybman argues the commissioner of Elections Canada should have gone to the Conservative Party and demanded to know who had access to the CIMS database at the time; who authorized its use; and whether the complainants were registered in that database as non-supporters of the Conservative Party. Although Elections Canada had no jurisdictional power to go to the court and compel the evidence, Shrybman notes in the film that Commissioner Côté had a duty to inform Canadians, and he could have sought public support: “He decided not to do it and in my view that is a real failure in his report.”

Smoczynski also wants to highlight for Canadians the dangers inherent to recent amendments of the Elections Act. He tracks how the new Fair Elections Act has enshrined further muzzling of the electoral commissioner. Says Shrybman, “The people that drafted this legislation will know that it has the effect that it will muzzle.”

Jean Pierre Kingsley, Canada’s former chief electoral officer (the CEO oversees elections), also worries about the impact of the Fair Elections Act on the CEO: “We should not curtail the role of the chief election officer… If he wants to talk about electoral process, I want him to talk… It won’t be robocalls next time, it will be something else going on, so that I, as a Canadian, need to know what is going on.”

Ex-Conservative MP Brent Rathgeber—who now sits as an Independent after resigning from the Conservatives in 2013—also found the whole amendment process “very disturbing.” He notes that any new legislation should be given enough time to be properly vetted, “but that bar has to be raised much higher for constitutional amendments and the Elections Act—which has to be treated with utmost respect because the Elections Act sets up the rules for how we run a democracy…So when a bill is rammed through a second reading in the House of Commons using time allocation and then sent to committee with hundreds of proposed amendments— which need to be vetted once again under time constraints—it lacks the legitimacy that an election bill needs to have.”

In the film, Rathgeber speaks candidly about being the same kind of “bright eyed reformer” as Stephen Harper: They both arrived in Ottawa in 1993—both fighting against whipped votes, omnibus legislation and time allocations. “I wonder,” muses Rathgeber, “if Harper recognizes himself now? I believe that the values that brought us to Ottawa for open and transparent government 20 years ago, most, if not all, have been sacrificed for electoral expediency…”

On January 28, filmmaker Peter Smoczynski will be bringing highlights of his documentary to the Victoria Event Centre (1415 Broad St). Additional guests, either real or virtual, will include some of the key people interviewed in the film, including journalist Mike Harris, who has just released his bestseller Party of One: Stephen Harper and Canada’s Radical Makeover and Green Party leader and MP Elizabeth May. As Smoczynski states: “The objective is fighting the trend of public complacency, which is a huge goal of voter suppression. Nine and a half million people didn’t vote and that has to change.”

 

Seating is limited so please purchase tickets early at www.eventbrite. The event will also be live-streamed.

Briony Penn ran as the federal Liberal Party candidate in 2008. She is the author of the best-selling A Year on the Wild Side, and an upcoming biography of Ian McTaggart-Cowan.