Judge urged to look for pattern rather than smoking gun in robocalls case

OTTAWA - The pattern of misleading or harassing phone calls in the 2011 election campaign is a more compelling reason to overturn the results than the lack of a thwarted Canadian voter is for letting them stand, court heard Tuesday.

Evidence contained in Elections Canada court documents, a sworn affidavit from a call centre worker and a pollster's report all support allegations of voter-suppression tactics, Lawyer Steven Shrybman argued on behalf of a group of Canadians who are challenging the results in their six ridings.

Shrybman, however, has a significant challenge before him: overcoming the fact that no would-be voters in any of the ridings have come forward to say the calls prevented them from casting a ballot.

"We have not been able to produce for this court any electors who did not vote," he acknowledged.

But when all the evidence is taken into account, a pattern emerges that Shrybman said points unmistakably to a targeted voter-suppression effort aimed at non-Conservative voters during the campaign.

The second of five days of scheduled hearings into the robocalls case saw Shrybman give an exhaustive rundown of all the evidence that has been presented to date in court documents, access-to-information memos and media reports.

The day turned out to be an exhaustive compendium of all the incremental developments in the controversy that's come to be known in Ottawa as the robocalls affair.

On Wednesday, Shrybman will argue the judge should allow as evidence a report by polling firm Ekos Research showing signs of a targeted voter-suppression campaign.

Shrybman spent the early part of the day rebutting the Conservative party lawyer's claim that the Council of Canadians is using the robocalls court challenge to fill its coffers and score political points.

The left-leaning advocacy group is paying the legal bills of the eight applicants in the robocalls case.

The Council of Canadians stands to gain nothing from the case other than to ensure that democracy is upheld, Shrybman insisted.

"They have nothing to gain from these proceedings, other than to recover the democratic franchise, which they believe was improperly taken from other electors in their ridings," he said.

Conservative party lawyer Arthur Hamilton has argued the robocalls case is frivolous, saying the eight applicants are really just stand-ins for the council.

"There is a financial windfall to the Council of Canadians," Hamilton said Monday. "They are raising money with respect to this application."

The council said Tuesday its robocall fundraising effort has produced just over $300,000. But the group said its legal bills already total $560,000 — with lawyers working at a 40 per cent discount — and are expected to exceed $600,000.

In virtually the same breath, however, the group made a fresh appeal for donations Tuesday, saying it is trying to raise another $300,000.

Shrybman told judge Richard Mosley on the second of five days of scheduled hearings that the sole purpose of the court challenge is to protect democracy.

"We have only one purpose," he said.

"That is to recover the democratic franchise that, we argue, was taken from the electors in the ridings at issue as a consequence of the fraudulent activities which our evidence describes."