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Elections commissioner halts robocalls probe, says no evidence for charges

A voter enters a polling station for the federal election, May 2 , 2011 in Ottawa. THE CANADIAN PRESS/Fred Chartrand

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A voter enters a polling station for the federal election, May 2 , 2011 in Ottawa. THE CANADIAN PRESS/Fred Chartrand

OTTAWA - A three-year probe into allegations of fraudulent federal-election robocalls in 2011 has come up empty, with investigators finding no proof of an orchestrated scheme or intent to deceive voters beyond one pocket of southwestern Ontario.

Thursday's long-awaited report from commissioner of elections Yves Cote was immediately cited as vindication by the Harper government, which has long been under suspicion amid reports of non-party supporters being directed to the wrong polling stations in the 2011 vote that vaulted the Conservatives to majority power.

Opposition critics say the report simply proves Elections Canada needs greater investigative powers — a point Cote himself stressed in his executive summary.

"Having carefully examined all of the evidence, the commissioner found no reasonable grounds to believe that an offence under the (Elections) Act has been committed," Cote's report flatly asserts.

His conclusion is supported by an independent review by Louise Charron, a former Supreme Court justice who was paid by Elections Canada for her expert opinion.

The release of the 32-page report comes against the backdrop of a bitter parliamentary battle over contentious Conservative changes to federal elections law.

Pierre Poilievre, the minister for democratic reform, said the findings prove the Conservative party ran "an honest and ethical campaign" in 2011.

"We followed all of the rules and we won fair and square," Poilievre said Thursday before an unflinching speech defending his proposed Fair Elections Act.

"That is what we've been saying all along and those who've been making baseless smears ever since have been once again proven wrong in the process."

Cote's investigation was separate from allegations of misleading robocalls during the same election in Guelph, Ont., where a young Conservative campaign staffer, Michael Sona, faces Elections Act charges for his alleged role in voter suppression calls that impersonated Elections Canada.

Despite tens of thousands of citizen complaints after media reports surfaced regarding the investigation in 2012, the commissioner said it all boiled down to 1,726 complainants in 261 electoral districts.

Of those, Cote's team was only able to track the incoming call numbers for 129 complainants due to a variety of investigative impediments.

From that limited sample, investigators found "overall, no discernible pattern of misdirection."

And while some people did receive misleading phone calls, that alone is not sufficient to press charges, the report concludes.

"There must be evidence of intention to prevent the elector from voting, or by some pretence or contrivance, to induce the elector to vote or not vote for a particular candidate.

"No such evidence was found."

Charlie Angus, the NDP ethics critic, said the message is clear: "If you're obstinate enough, if you refuse to co-operate, if you drag things out — well, look what happens."

Cote reported that at least one key witness simply refused to be interviewed, while a number of unnamed persons and "entities" were slow and unwilling to assist investigators.

"Elections Canada said they didn't have the tools, they said they needed to be able to compel witnesses — and we're seeing a government that's actually stripping Elections Canada's ability even further" in the proposed elections bill, Angus said.

Liberal critic Stephane Dion sounded a similar note.

"Why we need to be concerned is because the current bill of Mr. Poilievre will not correct these shortcomings," said Dion.

"It will do nothing to improve the capacity of the commissioner to succeed in the future."

Cote's report castigates the Conservative party for calling electors to inform them of their polling station after Elections Canada expressly told all parties not to do so. Those calls went ahead "despite ... their knowledge that a small percentage of electors would be given incorrect information," Cote said.

Elsewhere in the report that party is identified as the Conservative Party of Canada.

Duff Conacher, a co-founder of the group Democracy Watch, likened the case to the recent RCMP decision not to recommend charges for former Harper chief of staff Nigel Wright's secret $90,000 payment to Sen. Mike Duffy.

"Allow the courts to draw the line," Conacher said. That's what they're there for."

The investigation was complicated by the amount of time it took for many people to report the suspicious calls, which caused memories to fade. Media coverage may also have also coloured recollections, said Cote. And the failure of major telecom companies to preserve call records meant it was impossible to check the source of calls for the vast majority of the 1,700-plus complainants.

Charron, in a four-page appendix to the report, cited these impediments as well as the "inordinate delays and at times inexplicable resistance to providing the requested information," to investigators.

"I am unable to say if the result of this investigation might have been different in a world where none of these investigative challenges existed," concluded the former Supreme Court justice.

"My overall sense is that it would not be."

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