Party of One (13 page)

Given that Sona did not have access to CIMS during the writ period, which would be necessary to obtain the list of non-supporters used in the fraudulent calls, the most likely alternative to the “rogue operator” theory was that robocalls was a highly coordinated deception by skilled and knowledgeable people. There were individuals at HQ, at the automated calling companies, and on the Guelph campaign team who had those technical skills.

Sona had barely washed off his TV makeup before Conservative Party headquarters fired back. Fred DeLorey responded to the claims Sona made on
Power & Politics
in an email, stating that the party “ran a clean and ethical campaign and was not involved in voter suppression.” Andrew Prescott, the Burke campaign’s official contact with RackNine, again denied he had anything to do with misleading calls. Jenni Byrne also denied that the party was involved in dirty tricks. The narrative was that someone had acted alone, and the party let out the word that that someone was Michael Sona.

Although media critics were impressed by Michael Sona’s aplomb during his television appearance, Elections Canada had come to its own conclusions. Five months after his interview with Evan Solomon, Sona was informed of pending charges against him. As a devout Christian, the timing could not have been worse—just prior to the Easter weekend. On April 2, 2013, in the Ontario Court of Justice in Guelph, Michael Sona was charged with having willfully prevented an elector from voting, contrary to paragraph 281(g) of the Canada Elections Act. Yves Côté, who became Elections Canada commissioner after incumbent William Corbett’s surprise retirement in June 2012, said, “The strong public reaction to the fraudulent telephone calls made to electors in Guelph during the May 2011 general election shows how deeply
disturbed Canadians were by what happened. I hope that the charge we filed today will send a strong message that such abuses under the Canada Elections Act will not be tolerated.”

The Crown decided to proceed by indictment, which meant that if Sona were convicted, he would be going to jail. The justice department assigned one of its top guns, Croft Michaelson, to the case. He had participated in the prosecution of the so-called Toronto 18. Sona, who believed the government was out to get him, was not comforted when he allegedly found a tweet from Michaelson to Treasury Board president Tony Clement inviting the minister for drinks when he came to Toronto. In the accused’s favour, silence would no longer be an option for witnesses such as Ken Morgan and Trent Blanchette, who had declined to be interviewed by Elections Canada investigators. They and others, along with their documents, would be subject to subpoena if the matter came to trial.

The Conservative Party communications operation blundered in its response to news of the charge against Sona. Even though the former Tory worker was still clothed in the presumption of innocence, Conservative spokesperson Fred DeLorey emailed that the party was “pleased” with the development, commenting, “In 2011 we reached out to Elections Canada when we heard of wrongdoing in Guelph and did all we could to assist them.” Not only was DeLorey’s statement Disneyesque, it certainly didn’t represent what a lot of Conservatives were thinking. Both Marty Burke and his wife left the Conservative riding association in Guelph, allegedly over the treatment HQ had meted out to Michael Sona and the party’s apparent gloating over his being charged. Harold Albrecht, the Conservative MP for Kitchener-Conestoga, raised his objections to the Sona affair in caucus. Even the prime minister’s former parliamentary secretary, Dean Del Mastro, offered Sona support and disagreed with what had been
done to him. Finally, the patron saint of anyone thrown under the bus, long-time Conservative Hill staffer Chris Froggatt, extended his sympathy and support to Sona.

Sona’s lawyer, Norman Boxall, issued a statement on behalf of his client: although the charge was disappointing, “If the government was interested in the public being fully informed, and the issue of robocalls being properly addressed, a full public inquiry would be called. . . .” On May 3, 2013, Michael Sona made his first court appearance in Guelph. Boxall indicated that his client would be fighting the charge, a not unexpected plea given that the penalty for his alleged offence carried a maximum penalty of five years in prison and a $5,000 fine.

A pretrial conference was held at the Guelph courthouse on August 29, 2013. The judge seemed to suggest that the case might not go to trial. Justice Norman Douglas said the lawyers would meet again on September 25, 2013, for another pretrial conference: “If there needs to be a trial, we’ll set the date at that time.”

Court documents made public in August 2013 claimed that Michael Sona admitted to involvement in the scheme, but Elections Canada investigator Al Mathews “suspected that others were involved as well.” According to Information to Obtain (ITO) documents that Mathews filed in May, Conservative officials finally acknowledged that the party’s database had been used to create the list of non-supporters who received the calls.

The charge against Sona was based on evidence from six current or former Conservative Party staffers who had been named in May 2013 by Mathews. Oddly, Mathews had not found the witnesses himself. With one exception, the five others—Rebecca Dockstaeder, John Schudlo, Tyler Barker, Mitchell Messom, and Conrad Johnson—were all produced by Conservative Party lawyer Arthur Hamilton. Immediately after RackNine was served with a court order for its records in November 2011, Hamilton
had embarked on his own internal investigation into the robocalls affair. He interviewed key party workers and asked them not to discuss the robocalls publicly.

It is not known if Hamilton had access to all the data RackNine provided to Elections Canada investigators under court order. Meier would later admit that he had contacted Chris Rougier at party headquarters after the initial visit from Mathews seeking records from Guelph. It was presumably during that three-month period before the story became public that Hamilton learned about the witnesses against Sona. Exactly when he received that information, and what he did with it, is not known. What is known is that before Maher and McGregor published their first story in February 2012, it had taken Hamilton three months to respond to Elections Canada’s request that he arrange interviews for them with party officials. After the story was published, the Conservative Party immediately leaked Sona’s name as the rogue operative, and Hamilton quickly supplied witnesses against the party worker. Most of them were junior staffers who worked for Conservative members on the Hill. Investigator Mathews admitted in court documents that Rebecca Dockstaeder, John Schudlo, and Mitchell Messom “were strangers to me, and I had no reason to anticipate what evidence [they] could provide or not provide.” Hamilton had simply called Mathews and told him he had three relevant witnesses whom he thought the investigator should talk to.

Arthur Hamilton was present for interviews with five of the witnesses as counsel for the Conservative Party of Canada. Witness Benjamin Hicks, who came forward at the request of Elections Canada, provided his information in the form of a written statement. One after another, the witnesses produced by Hamilton told investigators that Sona had bragged to them about his role in the robocalls scheme after the election. In an ITO dated September 2013, Mathews described what he and
Ronald Lamothe learned from interviewing two of the witnesses in an MP’s office on March 21, 2012: “Both witnesses said that one afternoon, about a week to ten days after the May 2, 2011, election, Michael Sona visited the office.” It was a social visit that allowed party workers to catch up—nothing unusual. Both people knew Sona and described him as someone given to exaggeration and telling tall tales. Two other witnesses interviewed the same day also talked about Sona’s tendency to mythologize the facts. Mathews wrote, “Both witnesses knew Michael Sona and both described him as someone given to exaggeration.” They also told investigators Sona admitted to them that he had been involved in the false calls that went out to Guelph voters.

Rebecca Dockstaeder told Mathews that Sona had described “what sounded very, very similar to the story that we’d been hearing about these robocalls.” She claimed Sona told her he paid cash for the disposable phone and Visa card, and obtained a list of Liberal voters from a friend who owed him a favour. Sona then proceeded to record a message impersonating Elections Canada, according to Dockstaeder. The witness told investigators that it was only after she heard about the robocalls investigation in the media that she reported the alleged conversation she had had with Sona to her boss, MP Chris Warkentin. The Conservative MP for Peace River did not contact Elections Canada with the information but called Jenni Byrne at Conservative Party headquarters. HQ then contacted Arthur Hamilton. If the Conservative Party was reaching out to investigators, as Jenni Byrne and others constantly claimed, several group huddles took place before the information was passed on—and only after the story broke.

The investigation had taken a strange turn. Rather than serving the Conservative Party of Canada with search warrants, Elections Canada investigators relied on Conservative Party lawyer Arthur Hamilton to obtain emails and documents and set up meetings.
Since the Conservative Party itself was to some extent a participant in the investigation, this was unsettling. Ottawa defence lawyer Lawrence Greenspon thought the party’s involvement cast a shadow over the investigation. “The presence of a Conservative party lawyer during interviews being conducted by Elections Canada investigators takes away from the appearance of an independent investigation and therefore takes away from the appearance of justice,” said Greenspon.
⁸
Ottawa defence lawyer Michael Spratt agreed, calling Hamilton’s presence at the interviews “highly unusual.” Spratt said, “That’s almost never seen. Normally witnesses aren’t interviewed in the presence of their lawyer for the very reason that it potentially could contaminate the evidence.”

Both of the reporters who broke the story found it hard to believe that Elections Canada investigators had relied so heavily on the Conservative Party and Arthur Hamilton to filter so much of the evidence. “I think there are very serious questions about EC’s approach to the investigation,” Stephen Maher told me. “Why didn’t they get production orders? . . . Why did they let Hamilton sit in on interviews with the witnesses? I suppose they didn’t have much choice. Still, it raises big questions about the contamination of evidence, particularly given the authoritarian culture of the party.”

There were more problems with the interviews. Some of the details gleaned from the Hamilton-supplied witnesses were later proven to be incorrect. Investigators knew that the list of Conservative non-supporters in Guelph came from CIMS, yet the witnesses reported that Sona had suggested that a Liberal friend had been the source. More embarrassing, author and
Globe and Mail
journalist Lawrence Martin reported that Michael Sona had actually been holidaying in Aruba on the dates some witnesses said he was with them in Ottawa bragging about his role in the Guelph robocalls. But the most potentially damaging aspect of Hamilton’s
presence during the interviews of witnesses such as Conrad Tigger Johnson was the allegation of interference in the process.
⁹

Documents obtained by the
Huffington Post
and Global News showed that during the interviews with Elections Canada investigators attended by Arthur Hamilton, the Conservative Party lawyer interrupted the investigators, directed questions to the witnesses, and at times appeared to tell them what to say. What made that more astonishing was that Hamilton wasn’t representing the witnesses he appeared to be directing. Laura Stone of Global News obtained an email from one of the witnesses, saying, “Well, I said I didn’t need a lawyer, wasn’t commenting. I don’t suppose the Conservative Party lawyer counts, because my choice in the matter wasn’t exercised.”

The question was this: since Conservative lawyer Arthur Hamilton had breached the appearance of an independent Elections Canada investigation by taking part in these Elections Canada interviews, and had played a role in eliciting information from witnesses, would the witnesses’ evidence be discounted in court as tainted?

five

THE UNFAIR ELECTIONS ACT

B
eyond the particulars of the robocalls affair, Canada faced a huge problem. The way the country elected its federal government was hopelessly antiquated. Election rules had been made before the internet age, and the old Elections Act included no provisions for governing the huge databases of political parties. The system was so outdated that Canada’s chief electoral officer, Mark Mayrand, declared that new rules had to be in place before the next election if another robocalls debacle was to be avoided.
¹

Elections Canada received a total of 2,448 complaints arising out of the 2011 election, from 1,726 voters resident in 261 ridings across the country.
²
Two types of complaints were recorded: 1,207 related to calls allegedly providing electors with the wrong poll location, and 1,241 complaining about nuisance calls. (Some voters reported both incorrect poll location calls and nuisance calls.) Since most of the calls had been received nine months prior to the
investigation, few people could be specific about a time or date of a call, or had proof of the content of the call.

It was important to get the new electoral legislation right. On October 15, 2013, Elections Canada announced it had appointed a non-partisan advisory board, co-chaired by former auditor general Sheila Fraser and former Supreme Court justice Ian Binnie. The thirteen-member board included former premiers Bob Rae and Roy Romanow, former Reform Party leader Preston Manning, and other blue-ribbon members. Elections Canada stated that the purpose of the board was to advise Mayrand “on matters relating to Canada’s electoral system, its voting processes, and support for a vigorous democracy.”

As a result of the group’s deliberations, and Elections Canada’s own experience, Mayrand tabled a report in Parliament recommending changes to the law to keep up with new technologies. He was looking for three key changes: greater investigative powers, including the power of subpoena; supporting documents for the expenses of political parties, which, unbelievably, are not required under the old act; and the protection of voter data from political parties with respect to who voted and who did not. Mayrand also wanted calling companies to retain the phone numbers of the people they actually dialled during an election campaign. Finally, the chief electoral officer wanted to make it a crime to impersonate an Elections Canada official, punishable by a fine of up to $250,000. Under current case law it is not an offence to impersonate an Elections Canada official.