Summary Investigation Report on Robocalls

Appendix – Report of the Honourable Louise Charron to the Commissioner of Canada Elections

At the request of the Commissioner of Canada Elections, I have conducted an in-depth review of the investigation into the complaints about deceptive and annoying telephone calls received by voters in electoral districts other than Guelph during the 41st general election.

1. The Investigation Under Review

In a nutshell, the investigation under review can be described as follows.

During the last federal election period, a number of voters reported having received either live or recorded telephone calls, falsely advising them that their polling station had been changed. Others reported having received calls which, for various reasons, they considered annoying or harassing. An investigation was conducted by the Commissioner to determine whether sufficient grounds existed to recommend the laying of any charge, either under the Canada Elections Act or under the Criminal Code. One charge under the Canada Elections Act was laid with respect to calls made in the electoral district of Guelph. The investigation I was asked to review focussed on calls other than those relevant to the investigation in the electoral district of Guelph.

Given the nature of the complaints, two sections of the Canada Elections Act were potentially at play, both prohibiting acts of interference with electors: (a) wilfully preventing or trying to prevent an elector from voting is prohibited under paragraph 281(g); (b) similarly, inducing a person to refrain from voting, or to vote or not to vote for a particular candidate, by "any pretence or contrivance" is prohibited under paragraph 482(b).

After a lengthy investigation into these complaints, the Commissioner concluded that there was no evidence that an offence had been committed outside the electoral district of Guelph.

2. My Mandate

I was asked to conduct a thorough and complete review of the investigation and report on my opinion respecting its overall quality, including but not limited to the following:

  1. the quality and thoroughness of the investigation;
  2. the adequacy of investigative techniques used in the investigation;
  3. whether additional investigative measures should be undertaken; and
  4. the validity and strength of the conclusions contained in the investigative reports, specifically whether such conclusions are adequately supported by the evidence.

I was also asked to note whether the investigators faced any obstacles during the course of the investigation which might or might not have impacted on the result of the investigation. Finally, I was invited to make any recommendation, as I saw fit, regarding any aspect of the investigation.

In performing this mandate, I first met with the Commissioner and several members of the investigative team, at which meeting I was presented with an overview of the investigation and its results. I was also given access to all documents obtained or produced during the course of the investigation. With the exception of one section protected by solicitor-client privilege, I was provided with a copy of the comprehensive investigative report in both paper and electronic form, with supporting documents conveniently hyperlinked in the electronic version. I was also provided with an overview of the Guelph investigation in order to assist me in understanding the context in which this investigation occurred.

I read and considered the comprehensive investigative report in the light of the supporting material. Without purporting to give an exhaustive list, the supporting material included the following: documentation relating to the intake of the complaints; relevant information from Elections Canada on the electoral process; production orders; data obtained from telephone providers; emails and correspondence; investigators' notes; preliminary reports and briefing notes; transcripts and/or audio recordings of interviews conducted by the investigators; expert reports; statistical analyses; documents obtained from political parties; and media clippings. I reviewed the supporting material to the extent I found necessary to understand the investigative report and assess the validity and strength of the findings that it contained. I also had several follow-up discussions with the Director of Investigations.

I am satisfied that I was provided with everything I needed to perform my mandate. The amount of material gathered and produced by this investigation may have been massive; however, my report can be brief.

3. My Findings

I will start with the ultimate conclusion reached by the investigative team that there are no grounds to believe that an offence under the Canada Elections Act or the Criminal Code has been committed in relation to the complaints outside the electoral district of Guelph. In my view, this conclusion is amply supported by the evidence.

This conclusion may appear surprising to some, given the 40,000+ communications received from electors regarding the "robocalls", as they became known in common parlance. Understandably, the misleading calls about the locations of polling stations during the last general election received intensive media coverage. They were also the subject-matter of judicial comment in related proceedings. It is important to stress that most of the communications were from electors expressing their concern about the events reported in the media; fewer alleged having themselves received an inappropriate call. After the findings of the Guelph investigation are carved out of the equation, and the distinction is drawn between communications by concerned electors and actual complaints by recipients of inappropriate calls, we are left with a markedly different picture than the numbers might at first suggest.

There is no question that some inappropriate calls were made to electors in electoral districts other than Guelph during the 41st general election. The evidence revealed that some electors were indeed misdirected to a poll station other than that indicated on their voter information card. However, giving incorrect or false information does not constitute an offence. Without evidence of an intention to prevent the elector from voting, or to induce the elector by some pretence or contrivance to vote or not to vote, there are no grounds to believe that an offence has been committed. The investigation uncovered no evidence of such intention.

Due to the paucity of records from telephone providers and telemarketing services, it was impossible to ascertain the content of the message or the identity of the caller with respect to most complaints, let alone his or her intention. Even at its highest, in instances where the calls could be traced to someone acting on behalf of a political actor, the evidence usually revealed that the callers were targeting electors believed to be the party's own supporters. It would defy logic to infer from this evidence that the misdirection about poll stations was made with the intention of inducing electors not to vote. Further, when the geographic locations of the impugned calls outside of Guelph are considered as a whole, the evidence reveals no discernible pattern of misdirected calls from which one could reasonably infer an intention or design to prevent electors from voting.

As for those complaints that fell in the category of annoying calls – even if their content could have been ascertained with the requisite degree of certainty, which was generally not the case – in my view, there was simply no evidence of conduct that could amount to an offence under the Canada Elections Act or the Criminal Code.

In my opinion, this absence of evidence cannot be attributed to any deficiency in the investigation. The investigative team comprised highly qualified and experienced members. The investigation was thorough, and conducted in a fair and impartial manner. Each and every complaint was looked into and followed-up to the extent possible, using all available investigative measures. Additional information was sought, at times repeatedly, from all potentially relevant actors, including returning officers, Elections Canada personnel, telephone service providers, telemarketing providers, and political party representatives. In the more sensitive situations, a protocol was wisely reached allowing for an independent third party to oversee the gathering of the requested data to ensure the integrity of the process. Experts were consulted where needed to assist in analysing the data. In brief, the overall quality of the investigation was excellent.

Were the investigators faced with any obstacles which might or might not have impacted on the result of the investigation? In his report on Preventing Deceptive Communications with Electors – Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election, the CEO provides an overview of some of the investigative challenges faced by the investigators in their search for the source of improper calls made during the last general election. All of the challenges identified by the CEO in his report certainly impacted on the course of the investigation under review, some more significantly than others.

For example, the lack of binding industry-wide standards in the data retention policies of telecommunications companies proved to be a very significant factor in the search for the identity of the callers. As I noted earlier, the paucity of records was such that with respect to most cases it was impossible to determine the identity of the caller. Without evidence about who made a particular call, obviously the investigation with respect to that call comes to a dead end. The fact that most of the complaints under review were made some nine months or more after Election Day (following the intensive media coverage in February 2012) further exacerbated the difficulty.

Another significant factor, in my view, lies in the fact that the current limits to the degree of mandatory reporting to Elections Canada by political parties do not require the political parties to provide information about whether a telemarketing firm was retained for making calls to electors, the purpose for making the calls, the numbers called, or the text of the messages communicated to electors. Investigators generally had to rely on the cooperation of political parties and telemarketers to obtain this kind of information. Some telemarketers retained by political parties simply refused to cooperate; others ultimately cooperated, but only after considerable delay. Political parties generally cooperated in providing the data requested, but again here, there were inordinate delays and at times inexplicable resistance to providing the requested information.

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. My overall sense is that it would not be. As the investigators rightly concluded, had there been an effort to purposely mislead electors outside the electoral district of Guelph, one would have anticipated seeing a single predominant calling number, a constellation of calling numbers, or a pattern with multiple calls into a single electoral district from the same number. There was no such evidence.

In closing, I wish to thank the Commissioner and his investigative team. Everyone has been very cooperative and helpful in giving me all the assistance I needed in conducting this review.

The Honourable Louise Charron, LL.B., C.C.
February 25, 2014

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