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The Globe and Mail

In the robo-call affair, time and the law favour the Tories

If the Robo-call affair does spiral out of control, North Bay, Ontario may become ground zero – the scene of a by-election that could gravely damage the Harper government.

But the odds against that by-election ever being called are high, which is why the Conservatives may well weather this latest controversy.

The NDP and Liberals allege that Tory operatives may have tried to rig the vote in a number of ridings across Canada by using automated calls that directed voters to non-existent polling stations. Impersonating an Elections Canada official is illegal and can land you in jail. Prime Minister Stephen Harper, however, strongly denies that anyone in the senior ranks of the national campaign knew of or condoned any illegal activity.

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In the riding that is receiving the most attention, Guelph, the Liberals won the election. In others where allegations are flying, the Conservatives won by many thousands of votes. In both instances any dirty tricks were futile tricks. But Nipissing-Timiskaming is different.

Former Liberal MP Anthony Rota had held the Northern Ontario seat, dominated by the city of North Bay, since 2004, usually winning by comfortable margins. But last May, he lost it to Conservative MP Jay Aspin by a mere 18 votes.

At the time of the election, at least two voters complained to the returning officer that they had received calls falsely telling them that their polling location had been changed. Since the controversy broke last week, at least a dozen others have come forward claiming they received similar calls, according to Mr. Rota.

"At the time, everybody just thought it was a fluke," Mr. Rota told The Globe and Mail's Tamara Baluja. "It's only now that all these reports are coming up that I think we're realizing this was something more orchestrated."

Mr. Aspin's office declined a request for an interview. But in the North Bay Nugget he said that anyone who engaged in illegal activity should be charged.

"Let Elections Canada get to the bottom of this as soon as possible," he said. "We can go from there."

If there is enough evidence that enough voters were illegally deterred from voting to throw the Nipissing-Timiskaming result into question, a by-election could result that would be deeply embarrassing for the Conservatives. But how exactly does that happen? This is where circumstances favour the government.

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Under the Canada Elections Act, any voter within a riding can apply for a judicial order nullifying the result of an election in that riding on the grounds of "irregularities, fraud or corrupt or illegal practices."

In practice, no judge will entertain such a motion unless there is good evidence the irregularities could have put the outcome in doubt. Allegations involving a hundred voters won't get very far if one side won by 10,000 votes. But Nipissing-Timiskaming was so close that it might not take much to get a judge's attention.

An Elections Canada report alleging misdeeds in the riding would be the most credible evidence of potential fraud. But the Commissioner of Canada Elections typically makes no declaration about a riding unless and until it agrees with the Office of the Public Prosecutor to lay a charge. That might not happen for many months, if ever.

If there was sufficient evidence of wrongdoing in Nipissing–Timiskaming to bring that 18-vote plurality into doubt, a judge could nullify the election, which would force a by-election. But before that happened, either side could appeal the decision directly to the Supreme Court.

In other words, even if there was hanky-panky in the riding so serious that it warranted a by-election, if could take years before that by-election was called. It might even be overtaken by a general election.

No wonder the Conservatives are hunkering down on this one. Unless clear evidence emerges of wrongdoing, time and the law are on their side.

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