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.

#legal precedent #robocalls

Addendum:

Here’s a bit of a follow-up to my post of yesterday. McIsaac certainly makes an interesting point about a judge’s opportunity to rule favourably and set aside an election result if he or she were to believe fraud has occurred in a given riding  “on the balance of probabilities.” But, as I’ve suggested, given the extraordinary power of any precedent that might be set in this case, it is highly unlikely for Judge Mosely to base such a game-changing  decision on “probabilities.” Hard evidence of disenfranchisement is required.

Loss of ‘one voter’ enough to overturn election outcomes, robocalls hearing told

"A judge can overturn the outcome of an election if he believes “at least one voter” in the riding did not vote as a result of electoral fraud, a lawyer for Elections Canada argued in Federal Court on Friday.

The applicants in the “robocalls” election challenge of 2011 election results in six ridings have not presented evidence of specific individuals who were prevented from voting by deceptive poll-moving calls.

But if the judge hearing the case agrees with Elections Canada’s reading of the law, he could overturn the results in any of six ridings at issue if he believes that fraud occurred “on the balance of probabilities,” an easier standard of proof than “beyond a reasonable doubt,” the standard required in criminal cases.

Lawyer Barbara McIsaac made the presentation on behalf of Marc Mayrand, the chief electoral officer, based on the Supreme Court’s decision in the unsuccessful recent challenge of the election of Conservative MP Ted Opitz.

If the judge finds that there was fraud in a given riding, and if a greater number of votes were suppressed than the margin of victory, the court should balance those considerations with the reality that overturning the result would disenfranchise those who did cast ballots in the election, McIsaac said."

Update: December 18

Robocall Trial Wraps Up 

"As Shrybman concluded his case, Justice Richard Mosley asked whether he agreed with Elections Canada counsel Barbara McIsaac, who last week argued that the Supreme Court’s recent Opitz decision showed that to overturn an election, he would have to show a voter in each riding who didn’t vote as a result of the calls.

Shrybman accepted McIsaac’s argument.

“We have the onus to establish beyond the balance of probability, that fraud occurred, and affected the outcome of the election, which the Supreme Court has told us means that at least one voter didn't cast a vote,” he said."
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So Shryman accepts that the plaintiffs must established beyond the balance of  probability that fraud did indeed occur. The question is will Judge Mosley consider the EKOS study and the ongoing Election Canada's investigation sufficient evidence  to rule in their favour. It is telling in my view that Mosely has returned to McIsaac's point so often.