If the government wants evidence, there is a straightforward way to get it
Troy Media – by Gus Van Harten
The Robo-call Affair is simple. We want to get to the bottom of it.
We want to know whether robo-calls misled voters in large numbers. Let the truth be told.
But is a public inquiry needed to do this? As British jurist Lord Salmon once said, public inquiries should be confined “to matters of vital public importance concerning which there is something of a nation-wide crisis of confidence”. Does the Robo-call Affair qualify?
Government by deception
Robo-calling goes beyond the age-old problem of doorstep fraud. Robo-calls can be used to target thousands of people and trick them into losing their vote. It is hard to imagine a more vital question of public importance than the prospect our national majority government is premised on the deception of voters en masse.
Has the affair triggered a nation-wide crisis? Ultimately, this is for the public to decide. Only the government can call an inquiry. Only the public can force its hand. Thus, we must all scrutinize the available information and the government’s responses.
So far, the government’s responses focus on debates about “evidence”. The problem, for the government, is that these responses reinforce the case for a public inquiry.
First, the government says that there is no evidence linking senior Conservatives to the robo-calls. This is not surprising. Even with a public inquiry, the links between a scandal and its participants come to light after a painstaking review of the mountains of documents. The mastermind of a plot rarely confesses in the early stages of being discovered.
Second, the government says that the available evidence is “hearsay”. This sounds like a dodge. Hearsay is information you get from someone other than the original source. That’s all. All information reported in the media can be described as hearsay because the media usually reports what others say. This does not make the information unreliable, if our aim is to decide whether we need an inquiry.
To get the direct evidence, those who were involved would have to produce the documents and testify under oath. A public inquiry can make that happen.
Third, the government says that the evidence implicates other political parties. So be it. Call an inquiry and identify those responsible. If any Member of Parliament is shown to have won an election based on a real likelihood of fraud, he or she should resign.
In short, evidence comes from the investigation. It does not precede it.
As it stands, a lot of information now on the record calls for further investigation. Here are some examples:
Anonymous Conservative sources reportedly have blamed Michael Sona for robo-calls in Guelph. With a public inquiry, Mr. Sona could be called to tell his story at a public hearing.
Sona has reportedly said that he left his job with Conservative MP Eve Adams after Adams got a phone call from Jenni Byrne, who was national campaign manager for the Conservatives in 2011. A public inquiry could get the documents. It could put Adams and Byrne on the stand.
The robo-calls in Guelph were reportedly transmitted by RackNine. A public inquiry could make RackNine produce the records of all of its calls. The inquiry could work out which, if any, were misleading, to whom they were sent, and when.
An inquiry could do the same for other companies that sent robo-calls. It could track down the calls that skewed the voting process, and follow the trail.
If the trail leads to Prime Minister Harper, or the Leader of the Opposition, or the King of Spain, so be it. Follow the trail, put them on the stand.
What about the alleged second bank account in Julian Fantino’s 2010 by-election campaign, which Mr. Fantino denies? Are there records of such an account? If so, was the money used to pay for robo-calls? Get the bank records and put Fantino on the stand.
A public inquiry with coercive powers – and with a focused mandate to investigate allegations of mass fraud arising from robo-calls that appear to have interfered with the voting process – could get the evidence to the public. It could do so thoroughly, independently, credibly.
Not a job for Elections Canada, or the RCMP
Of course, for these reasons, governments often fear a public inquiry. An inquiry leads to a more precisely-informed electorate.
The evidence is less likely to see the light of day if left to Elections Canada and the RCMP, although by no fault of their own. We would have to wait for subpoenas, riding-by-riding. We will not have open hearings to review the fruits of investigation, as they are found.
So, the problem with the government’s responses is that only the government can call a public inquiry. If the government wants evidence, there is a straightforward way to get it.
Gus Van Harten is a professor at Osgoode Hall Law School. He has worked on two public inquiries, but speaks in a personal capacity. His research is available openly at www.ssrn.com/author=638855.