OTTAWA — The Federal Court ruled Thursday that a Council of Canadians lawsuit aimed at overturning the election results in seven ridings where voters reported receiving deceptive telephone calls can go ahead.
The Conservative Party had sought to have the case thrown out before evidence could be presented, arguing that it was a frivolous and vexatious suit, but federal prothonotary Martha Milczynski stated that without judicial scrutiny, fraudulent electoral calls "could shake public confidence and trust in the electoral process."
"Far from being frivolous or vexatious, or an obvious abuse, the applications raise serious issues about the integrity of the democratic process in Canada," said Milczynski.
"And identify practices that, if proven, point to a campaign of activities that would seek to deny eligible voters their right to vote and/or manipulate or interfere with that right being exercised freely."
At a hearing in June, Conservative lawyer Arthur Hamilton argued that the seven applications for judicial review of the election results should be thrown out of court because they were filed months after the election.
The Elections Act requires that any action to overturn an election be launched within 30 days of allegations of irregularities coming to light.
Steven Shrybman, the lawyer handling for the council, argued that the applicants only learned of an apparent attempt to keep voters from going to the polls after media reports on Feb. 23.
The court ruled, though, that when voters received calls misdirecting them on election day, they could not have known that they "could have been part of a fraud or corrupt or illegal practice," and said a determination requires "a full evidentiary record."
"It cannot be concluded at this juncture simply on the basis of inference and argument that the applicants as a group, or any of them, sat on their rights until after the time for bringing the application had expired."
The ruling does not cast judgment on the merits of the case, only asserts that it is not obviously fatally flawed, and calls for parties to get ready for a hearing "as quickly as possible."
Milczynski cites a ruling from Ontario Superior Court Justice Thomas Lederer, who in May ruled that the election of Conservative MP Ted Opitz in Etobicoke Centre should be voided because of irregularities, after former Liberal MP Borys Wrzesnewskyj sued.
Opitz appealed that decision to the Supreme Court of Canada on July 10. A decision is expected in that case any day.
Council of Canadians president Maude Barlow said Thursday that she is pleased that the court didn't toss out the case.
"We'll be with the applicants every step of the way," said Barlow. "We want the truth to come out. The Canadian people all want to know what happened. We're not prejudging it but we do want our day in court."
Conservative Party spokesman Fred DeLorey pointed out that the ruling is not evidence that the case has merit.
"The court made no decision on the merits of the applications, which we continue to believe are completely unfounded," he said Thursday.
The council, a nationalist, left-leaning citizen advocacy group, is seeking to have the court throw out the results in seven ridings where Conservatives won close races: Don Valley East, Elmwood—Transcona, Nipissing—Timiskaming, Saskatoon—Rosetown—Biggar, Vancouver Island North, Winnipeg South Centre and Yukon.
Each of the applications is from a voter who received a call telling them that their polling station had moved, seemingly as part of a concerted attempt to prevent opposition supporters from voting.
The council has also presented evidence from a Conservative call centre worker in Thunder Bay, Annette Desgagne, who signed an affidavit stating that she made calls in at least one of the ridings — Nipissing—Timiskaming — directing opposition supporters to the wrong polling stations.
The Conservatives have repeatedly stated that the party did not misdirect any voters.
DeLorey has described the council's suit as a "a transparent attempt to overturn certified election results simply because this activist group doesn't like them."
In an interview with the Toronto Star in April, Hamilton predicted the council's case would be thrown out. "They don't have any backup," he said then. "This is a publicity stunt."
