In my last post I detailed federal court judge Mosley’s recent ruling on the so-called robocall fraud that occurred during the 2011 Canadian federal election. Mosley’s complete ruling can be found here.
As a follow-up, today I want to look at what Justice Mosley had to say in his ruling about the conduct of the defendants – namely the six Conservative Party of Canada MPs whose ridings were covered under the complaint.
Immediately in the introduction of his ruling, Justice Mosley has the following to say:
 That the applications are to be dealt with expeditiously did not prevent the parties, particularly the respondent MPs, from bringing a considerable number of interlocutory motions. It is, I think, helpful to provide an overview of the preliminary proceedings to explain why this case has taken so long to be completed and to provide some background to the issues dealt with in these reasons.
Mosley then proceeds to dedicate long sections of his ruling to some of these ‘interlocutory’ motions. Let’s take a look at some of these motions filed by the respondent MPs.
Motion to Dismiss
In May, 2012, two months after the complaint was filed, the Conservative Party of Canada (CPC) filed a motion to dismiss the case as “frivolous and vexatious, an abuse of process and not brought within the time required under s 527 of the Act“. In July 2012 this motion to dismiss was denied with the presiding judge (Milczynski) having the following to say:
Far from being frivolous or vexatious, or an obvious abuse, the applications raise serious issues about the integrity of the democratic process in Canada 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 – all of which if permitted to escape even the prospect of judicial scrutiny, could shake public confidence and trust in the electoral process and in those who in good faith stand for public office.
In her ruling, Milczynski did maintain that the question of timeliness needed to be dealt with at the subsequent trial since clearly the applicants had not filed in the statutory limitation period after the election (30 days). Mosley delves into this issue in his ruling and concludes that section 527 of the Canada Elections Act clearly requires only that the application be filed 30 days from “the day on which the applicant first knew or should have known of the occurrence of the alleged irregularity, fraud, corrupt practice or illegal practice“. Mosley concludes that the applicants did indeed meet this requirement as it was only after substantial time had passed since the election and media coverage of the fraud commenced that the applicants realized they had been targeted intentionally by misleading calls.
Maintenance and Champerty
On the same day in May 2012 that the above detailed motion to dismiss was filed by the respondent MPs, those same MPs filed a second, completely separate motion to dismiss on the grounds of “maintenance and champerty”.
The principal of maintenance is basically the support of a legal action by a third party with no direct concern in the proceedings. Champerty is simply a more serious form of maintenance whereby the third party profits from the arrangement in some way.
In this motion to dismiss an organization called the Council of Canadians (website here) was accused of enlisting the complainants to act as surrogates. The MPs alleged that the Council of Canadians then benefitted from this arrangement through profits generated by fund-raising to cover legal expenses for the case. The MPs further allege that the Council of Canadians was motivated by a specific animosity towards Prime Minister Harper and, as such, were acting maliciously in their funding of this case.
Justice Mosley found these allegations to be baseless and noted that the Council of Canadians has been critical of government regardless of which party was in power and, in this case, were clearly acting to assist the applicants to “assert their rights to a fair election as Canadian citizens and electors“.
Further, Mosley takes issue with the motion to dismiss as a tactic to derail the proceedings:
 … The motion was, in my view, an attempt to derail these applications before they could be heard and determined on the merits and was brought without justification.
Motion to Increase Security for Cost
After the failure of their motion to dismiss the MPs next moved to have an increased security for costs. The MPs requested that the applicants put forward $260,409.00 which would be held pending the outcome of the trial. The idea here is that if the lawsuit was found to be frivolous, the defendants (in this case the MPs) could draw upon these funds to cover their legal expenses and any punitive damages.
The judge hearing the motion (Aronovitch) denied it saying the “respondent MPs have failed to raise grounds or bring to bear evidence that would justify any further payment of security for costs, let alone in the amount requested“. Aronovitch also determined that:
 …the seven motions (one in each application) had unnecessarily delayed and encumbered the proceedings, she ordered that the costs of the motions be paid by the respondent MPs in any event of the cause.
These are just a few of the shenanigans pulled by the MPs and their legal teams in an attempt to gum up the works and prevent a fair hearing of the evidence. Their abuse of the system is nothing short of disgraceful. Justice Mosley summed this up nicely in the conclusion of his findings:
 These proceedings have had partisan overtones from the outset. That was particularly evident in the submissions of the respondent MPs. In reviewing the procedural history and the evidence and considering the arguments advanced by the parties at the hearing, it has seemed to me that the applicants sought to achieve and hold the high ground of promoting the integrity of the electoral process while the respondent MPs engaged in trench warfare in an effort to prevent this case from coming to a hearing on the merits.
 Despite the obvious public interest in getting to the bottom of the allegations, the CPC made little effort to assist with the investigation at the outset despite early requests. I note that counsel for the CPC was informed while the election was taking place that the calls about polling station changes were improper. While it was begrudgingly conceded during oral argument that what occurred was “absolutely outrageous”, the record indicates that the stance taken by the respondent MPs from the outset was to block these proceedings by any means.
 The preliminary stages were marked by numerous objections to the evidence adduced by the applicants. The respondent MPs sought to strike the applications on the ground that they were frivolous and vexatious, to have them dismissed as champertous and to require excessive security for costs, in transparent attempts to derail this case.
This is the caliber of the people we elect in this country.