New elections law missing measures to crack down on phoney robocalls: critics

OTTAWA - If the Conservative party could determine within days that Dimitri Soudas used its closely guarded voter database, why is Elections Canada still in the dark about the data source for fraudulent robocalls almost four years after the 2011 election?

Soudas, the party's executive director, resigned Sunday after improperly aiding his fiancee's nomination bid in Oakville, Ont. — busted, in part, when the party checked who pulled Oakville voter records from the Constituent Information Management System, or CIMS.

And yet finding out who pulled what from that same database remains "the $64,000 question" in the 2011 voter suppression investigation, said lawyer Steven Shrybman, who pursued an unsuccessful robocalls civil suit last year.

In that case, a Federal Court judge refused to overturn election results in six federal ridings, but did rule that voter suppression calls were widespread and that the "most likely source of the information used to make the misleading phone calls was the CIMS database maintained and controlled by the (Conservatives), accessed for that purpose by a person or persons unknown to this court."

That 2011 fraud helped spur Bill C-23 — proposed electoral reforms the government has christened the Fair Elections Act. And yet the legislation does not give Elections Canada the tools it needs to solve the robocalls riddle.

Pierre Poilievre, the Conservative minister for democratic reform, said in an interview Tuesday the bill has three major provisions "that will protect Canadians against political imposters who make rogue calls."

They include new offences for anyone caught impersonating a candidate, political party or Elections Canada official and much higher penalties for misdirecting voters to the wrong polling station.

There's also a proposed voter contact registry that will include the automated call providers, the scripts they use and the authorized party officials who order such campaigns.

And voter contact companies that fail to register with the federal broadcast regulator, the CRTC, could be charged.

While many parts of Bill C-23 have earned scathing reviews from election experts, including both the current and former chief electoral officer, the robocalls reforms have gathered some qualified praise.

Jean-Pierre Kingsley, who served 17 years as Elections Canada's boss, said recently the provisions would stop the kind of fraudulent calls that marred the 2011 campaign, although he recommended the government go further with better investigative powers.

Graham Fox of the non-partisan Institute for Research in Public Policy also praised the voter contact measures as "really helpful after the fact if there needs to be an investigation."

But some critics say the most urgently needed robocall reforms aren't included in the bill — and some are flatly counterproductive.

"What is the single most important choke point for preventing this kind of stuff? It's databases," said Craig Scott, the NDP critic for democratic reform.

"You're not going to be able to perpetuate a serious fraud without access to some kind of database that directs you."

The burden of prevention needs to be placed on the custodians of such databases — meaning political parties, Scott argued.

"I want to know one simple thing: Who downloaded, or how many times were lists of non-Conservative party supporters downloaded, in the three days before the election?" Shrybman said in an interview from London, U.K.

"That is the $64,000 question."

The Ottawa lawyer helped the left-leaning Council of Canadians and six voters in their attempt to overturn 2011 election results in six close-fought ridings due to voter suppression calls.

"The legislation doesn't get us anywhere closer to ensuring that, should this happen again, whoever controls the database won't be compelled to provide a list of those who used it," he said.

Elections Canada wanted the power to compel witnesses to testify, an issue it has faced with some reluctant Conservative party officials, documents filed with the courts in the robocalls investigation show.

Elections Canada can compel documentary evidence with a court order, including database information, if a judge agrees, Poilievre said.

"I certainly see a great opportunity for abuse if Elections Canada were to have access to party databases," he added, noting parties log voter preferences from willing supporters.

"The suggestion that Elections Canada should have that information is really outrageous. I can't imagine why a government agency should have access to records of how people vote. That is very dangerous."

It remains an open question whether Canadians trust their personal information to political parties, which are not governed by any privacy laws, more so than Elections Canada, which is.

Shrybman said he sees a second, deeply problematic element to Bill C-23 in that it proposes to muzzle Elections Canada from any communications except those dealing directly with how, where and when to vote.

If the chief electoral officer had not been able to tell Canadians he'd received hundreds of complaints about fraudulent calls after the 2011 campaign, and invite others to come forward, the scope of the problem would never have become clear.

But Poilievre said fraudulent robocalls can't be kept secret.

"Unlike a lot of crimes, a mass deceptive phone call is instantaneously heard by thousands of people and therefore there's all kinds of interest in the call right when it happens," said the minister, who once owned a voter contact company.

"This is not something that happens quietly, in secret or in the dark."

Poilievre also sees no contradiction in setting a up robocall registry to catch criminal behaviour, even though his party axed the long-gun registry on the rationale that criminals won't register so it wouldn't deter crime.

"If they don't follow the registration rules, they will be shut down very quickly," he said of voter contact companies.

The CRTC has the power to catch companies operating beyond Canada's borders, he added.