Friday, December 14, 2012

The Precedent Setting Nature of the Robocalls Case is the Legal Issue

In my view, the outcome of this case hinges on the nature of any legal precedent that could be set by a final ruling. Judge Richard Mosley is no doubt fully aware of this possibility. In that respect, I don’t think the six ridings in question will be getting new elections. And here’s why.

In order for the results in these ridings to be set aside and a new election called, the plaintiffs must prove that they were electorally disenfranchised. I think this is the real and only burden of proof. There is plenty of evidence to suggest that there was indeed a systematic, patterned effort to prevent people from voting in many riding, but all of the plaintiffs before the court did in fact vote despite these efforts. This was one of Hamilton’s key argument yesterday, and it’s persuasive.  None of the eight plaintiffs was disenfranchised - which doesn’t mean other people in these particular ridings and others weren’t, but those other people are not before the court. It would be difficult for any judge, in other words, to set a precedent for setting aside an election on the basis that there was an effort to prevent some constituents from voting. Some concrete evidence that someone actually was would seem to be required. Had the plaintiffs themselves standing before Judge Mosley actually been prevented, a precedent setting ruling could be made with some legal comfort.
Just something to think about, but maybe Judge Mosley will fool us all.


  1. The judge has to consider more than just the electors before him bringing their evidence. Would their case be stronger if those electors had NOT voted? NO! They could have been called after having been out to vote, yet the crime would have persisted. Why should the timing of their franchise be a factor in realizing a widespread effort was made by Conservative supporting frauds?

  2. I fully agree that there was a widespread effort to commit election fraud and that the Harper Regime is deviously behind it, and, like you, I'd love to see the CPC punished - for this and countless other crimes against us all. But given the absence of hard evidential proof before the Court so far up to and including today, were Mosley to rule in favour of the plaintiffs on the grounds of those widespread efforts, on the legal grounds of "the balance of probabilities," which is, let me stress, his right to do so, to be sure, it would, in my judgement, open up his decision immediately to appeal. It would be bold to rule in such a manner, and, like you, I'd like to see that happen. But, alas, I just don't see it happening. Were anyone anywhere in Canada to step before this judge and claim that he or she was electorally disenfranchised because of a misleading robocall or other misleading call, there would be something beyond probabilities. But, hey, the results may surprise us all. He might think probabilities are indeed enough and not worry about potential appeals. Mosley is no dummy.