Elections commissioner recommends charges be laid in Guelph robocalls case

OTTAWA – Commissioner of Canada Elections Yves Côté has recommended laying charges over the election day robocalls sent to voters in Guelph in 2011.

After more than 21 months of investigation by his office, Côté has referred a report to Director of Public Prosecutions Brian Saunders, who will decide whether to initiate prosecution in the politically-charged case.

Though neither Elections Canada nor Saunders’ office would confirm the referral, the Citizen and Postmedia News have learned that Côté forwarded the file earlier this year, recommending charges be laid.

Saunders must now weigh the evidence compiled by Elections Canada investigators and decide if it can support charges under the Elections Act or, possibly, the Criminal Code.

Saunders could find that the evidence is insufficient for prosecution or decide charges are not in the public interest.

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Still unclear is how long it will take Saunders to consider the issue. In the last major Elections Canada case his office handled – the “in and out” scandal over 2006 election advertising – more than a year passed between the referral and charges being laid.

Côté’s referral pertains only to the Guelph robocalls and not to hundreds of complaints about misleading election calls in other ridings across the country, which are still under investigation.

But the referral marks an important milestone in an investigation that began shortly after the May 2, 2011, vote, when Elections Canada investigator Allan Mathews travelled to Guelph to interview voters who said they had received automated calls telling them their polling locations had been changed.

Mathews later traced the calls to a disposable cellphone registered with the pseudonym “Pierre Poutine” of the bogus address Separatist Street, Joliette, Que.

In the months that followed, Mathews obtained court orders to compel the production of telephone, Internet and credit card records. These records mapped an investigative trail from the Poutine phone, to Edmonton-based voice broadcasting company RackNine used to send the robocalls, then to a Rogers Internet address in Guelph that seemed to correspond to the campaign office of Conservative candidate Marty Burke.

The referral does not necessarily end Elections Canada’s investigative efforts. Mathews has been continuing to gather evidence since the case was referred to the DPP.

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According to Elections Canada’s website, the agency sends a file to the DPP only with cause.

“The Commissioner employs this means only if there is sufficient evidence that an offence under the Act has been committed and if he or she is of the view that recommending a prosecution is in the public interest,” according to the Information Bulletin on Enforcement of the Canada Elections Act.

If Saunders agrees charges are in the public interest, he would ask Côté to swear out a document called an Information before a court – effectively laying the charges. The case would then be prosecuted by federal lawyers in Saunders’ office. A conviction could result in fines or even jail time.

Alternately, Saunders could return the file to Côté and suggest he and the named parties come to a compliance agreement, which would require an admission of wrongdoing and undertaking to not break the rules again, but would result in no further penalties.

Or, Saunders could ask Côté’s investigators to continue their work and obtain more evidence.

In court documents, Mathews repeatedly referred to Guelph campaign workers Michael Sona and Andrew Prescott. Both have vehemently denied any involvement in the calls, and complained about the price they have paid. Both lost jobs as a result of being publicly named, and both have endured uncomfortable media scrutiny.

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The Guelph Conservative campaign manager, Ken Morgan, has never been interviewed by Elections Canada and now lives in Kuwait. Chris Crawford, a Burke campaign worker who gave evidence to Elections Canada that Sona and Morgan talked in general terms about dirty tricks, works for Intergovernmental Affairs Minister Peter Penashue.

The referral to the DPP is believed to be Côté’s first since he took over the job last summer when William Corbett retired. Last month, Côté issued a rare statement about the case, saying that it remained his office’s top priority.

“I have highly competent and motivated people assigned to the file, and while we are limited in the tools at our disposal to gather all of the evidence, we have been making significant progress,” he said in the written statement.

The robocalls case is not the first Elections Canada file to land on Saunders’ desk. In February 2011, Saunders recommended laying Elections Act charges against the Conservative party and four of its senior officials, including senators Doug Finley and Irving Gerstein, over the “in and out” financing of radio and TV ads in the 2006 campaign.

Charges against them were withdrawn after an agreement in which the party agreed to plead guilty and pay $52,000 in fines, the maximum penalty available. The prosecutor said at the time there was no reason to proceed with the case as a conviction at trial could not extract a stiffer penalty.

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After the Citizen and Postmedia News first reported on the Guelph investigation 13 months ago, Elections Canada was inundated with complaints of deceptive and fraudulent election calls from across the country, sparking a second, national investigation.

Documents filed by investigators show voters in ridings across the country claim to have received live calls and robocalls giving them wrong information about their polling stations. In some cases, the calls came in ridings where Conservatives were in tight races, but other reports came in so-called safe ridings where any effort at voter suppression would be pointless.

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