Summary Investigation Report on Robocalls
This report sets out the conclusions reached following my Office's investigation into what has become known as the "robocalls" affair, which arose in connection with the May 2011 federal general election.
The report describes the nature of the complaints received and, in broad terms, how the investigation was carried out. It also summarizes the evidence that was gathered. It touches only briefly on robocalls in the electoral district of Guelph, which are the subject of a separate investigation.
I have decided to issue a report on this matter principally because of the high level of interest it has generated among the public. I think it is important that Canadians be informed of what we did and what we found.
Purpose and Result of the Investigation
The purpose of the investigation was to determine one thing: whether there was enough evidence to recommend to the Director of Public Prosecutions that charges be laid for violations of the Canada Elections Act in relation to nuisance calls or calls providing incorrect poll location information outside the electoral district of Guelph.
The conclusion I have reached is that the evidence uncovered in the investigation is not sufficient to give me reasonable grounds to believe that an offence was committed. As a result, I will not refer the matter to the Director of Public Prosecutions, the legal test for such a referral under subsection 511(1) of the Act not having been met.
Difficulties in the Investigative Process
I would like to highlight two difficulties that my Office encountered during this investigation.
The first relates to the fact that, in the vast majority of the cases, complaints were made many months after the election. As a result of the passage of time, recollections had weakened and access to the relevant evidence had become more difficult.
This highlights how important it is that Canadians contact the Commissioner's Office quickly when they have reason to believe that their rights as electors are being interfered with. That way, not only will evidence be of better quality and more readily accessible, but it may also make possible an early intervention to stop abuses.
The second relates to the length of the investigation, evidenced by this report being issued three years after the events. There are several reasons why the investigation took so long, and the report describes them in some detail.
There is one I would emphasize. It is linked to the type of co-operation investigators received from the various people and entities involved. Though co-operation was generally good, there were several instances where, for example, simply arranging interviews took a long time (in some cases, months). There were also instances of outright refusal to co-operate.
This reinforces a point that I have made in my annual report and, more recently, elsewhere. The Commissioner should have the ability to apply to a court to compel testimony. Otherwise, investigations will continue to take time and, in some cases, a lot of time. Regrettably, without this tool, some investigations will simply abort because of our inability to get at the facts.
In light of the conclusion arrived at and considering the significance of this file, I retained the services of an independent expert to review the investigation in its entirety. The expert was mandated to report to me on the quality and the thoroughness of the investigation and on the validity of the conclusions reached.
The Honourable Louise Charron, a former justice of the Supreme Court of Canada, performed this review. As a former Crown prosecutor and a recognized expert in criminal law, Ms. Charron was particularly well placed to undertake such work.
Ms. Charron's report is published in the Appendix. It sets out her full mandate, describes the access she was given and explains how she performed her review. It also contains her observations and her conclusions, which strongly support both the overall quality of the work done by investigators and the conclusion reached that there are no grounds to believe that an offence under the Act was committed.
Yves Côté, QC
Commissioner of Canada Elections